SpectrumTalk

DOJ IG Wins "Lawyer of the Year"Award

FCC IG Under Investigation

The Washington Post recently had an editorial praising Department of Justice Inspector General Glenn Fine:

"Glenn A. Fine has had an extraordinarily busy year. As inspector general of the Justice Department, Mr. Fine has overseen investigations of politicized hiring practices, breaches of security involving classified documents, and the FBI's prosecution of the war on terrorism and its interrogation of terrorism suspects. His conclusions often have been unflattering to his nominal colleagues at the department, yet they have always been measured and backed up by copious documentation. As a result, his reports have not always been welcomed -- especially by those under scrutiny -- but they have rarely been questioned or criticized as being politically motivated or factually flawed. That's a rare feat in today's ultrapolarized Washington, and it is a testament to the professionalism of Mr. Fine and his office."

The editorial was occasioned by Mr. Fine being recognized by The National Law Journal as "Lawyer of the Year". NLJ wrote,

"Fine and the team he has assembled in the past eight years emerged as beacons of nonpartisanship and independence as they thoroughly investigated problem after problem and revealed where the department went off track. Fine's office also recommended steps to department leaders and Congress for restoring the department's position as the nation's pre-eminent law enforcement agency."

The NY Times quoted Mr. Fine talking about his job, “You have to recognize that you’re not going to be popular.”

The FCC's Inspector General has also be in the news, but in a different context: The 12/08 House Energy and Commerce Committee report on FCC reported that there were several complaints about him pending before the Integrity Committee of the President's Council on Integrity and Efficiency. These complaints are reported to deal with possible violations of

"federal procurement regulations while hiring outside contractors and overseeing contracts, demonstrated incompetence in overseeing audits, and creat(ing) a hostile work environment in his own office."

The House Committee report added that

"several FCC employees ... described the Inspector General as actively supporting the Chairman and other FCC officials, while discouraging independent investigations by his own office when the outcome might be critical of FCC management."

FCC's IG describes his office's job as follows,

"The Office of the Inspector General (“OIG”) is dedicated to ensuring compliance with the requirements of the Inspectors’ General Act and assisting the Chairman in his continuing efforts to improve the effectiveness and efficiency of the Federal Communications Commission."

Under the Inspector General Act, FCC's IG's responsibilities are exactly the same as DOJ's (with the minor exception that under § 8E the DOJ IG is under special restriction on investigations of certain very sensitive criminal and intelligence matters, so FCC's IG actually has more independence.) The FCC's IG's role with respect to the Chairman is governed by § 8G(d)

"Each Inspector General shall report to and be under the general supervision of the head of the designated Federal entity (e.g. FCC), but shall not report to, or be subject to supervision by, any other officer or employee of such designated Federal entity. The head of the designated Federal entity shall not prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation."

But the DOJ IG is also under the "general supervision" of the Attorney General per § 3(a). The duties and responsibilities of both IGs under § 4 are exactly the same.

A review of the FCC's IG's semiannual reports shows a continuing lack of any criticism of FCC management except in the most minor matters. (For example in the most recent report, they mildly criticized Media Bureau's handling of new non-commercial educational (NCE) FM stations and also commented on a MB database system:

"The OIG concluded that, while the Media Bureau articulated legitimate reasons for proceeding as it did, this office will make recommendations to help devise a system that will better address the needs of the regulated community."
...
"During this period, the OIG initiated an inquiry into allegations that the Media Bureau’s Consolidated Database System (“CDBS”) was flawed. CDBS is the licensing application software system that the Media Bureau has made available for public filings since 2000. Because remedial efforts regarding this system were already underway,OIG noted the alleged flaws to the Office of Managing Director and may test the new system once it is publicly available."

Why had it taken 8 years to take corrective action in the database system? What was the root cause of the problem? The world wonders.

The current FCC IG and all his predecessors had been long time career FCC employees with no previous investigative experience before becoming IG. This is probably the root cause of the long term ineffectiveness of the FCC IG office with respect to internal operation of the FCC. Reliability and unwillingness to "shake the boat" may have been a key factor in selecting these individuals. The House report suggests that the FCC IG become a presidential appointment subject to Senate confirmation. However, that would be a time consuming legislative change and there are already too many such appointments in the federal government.

A more pragmatic approach is to select a new IG from career IG staffers in larger agencies with proven independence, judgment, and investigative abilities. I am sure that some of Mr. Fine's senior staffers, for example, would jump at the opportunity of being the IG of an independent agency like FCC. I hope the new Chairman and the oversight committees give this serious consideration.

Does FCC need a better IG only to ferret out internal wrongdoing? No. The presence of normal checks and balances, like having an effective IG, will discourage some of the bizarre things that have been happening in recent years and make the FCC more self-correcting and credible. Also as the NY Times article on Mr. Fine points out, a credible IG would make his findings of no improprieties credible also.

Other agencies' IGs in action:

• HHS: "The inspector general of the Department of Health and Human Services reviewed all 118 applications for marketing drugs and medical devices that were approved by the F.D.A. in fiscal year 2007. It found appalling failures to collect information and act on it."
• Interior: " The inspector general of the Interior Department has found that agency officials often interfered with scientific work in order to limit protections for species at risk of becoming extinct, reviving attention to years of disputes over the Bush administration’s science policies."
• USDA: "The Agriculture Department's new testing plan for mad cow disease, which calls for testing up to 220,000 cows by the end of 2005, is seriously flawed and will result in ''questionable estimates'' of the prevalence of the disease in the nation's cattle, according to a draft report by the department's inspector general."
• EPA: "In a rebuke of the Bush administration, the inspector general of the Environmental Protection Agency said on Thursday that legal actions against major polluters had stalled because of the agency's decision to revise rules governing emissions at older coal-fired power plants."
• DoD: "The report by the Pentagon inspector general found the employee, David Tenenbaum, an Orthodox Jew, was targeted by counterintelligence agents because of his religion. The conclusion vindicated Tenenbaum, who was never charged with a crime and has spent a decade trying to clear his name. "

Note: Comments here on the FCC IG's past performance relate to his role with respect to internal FCC operations. A large part of the FCC IG position deals with misuse of Universal Service Fund money - a different issue about which no representations are made.