Originally established under the Inspector General Act of 1978, these federal offices employ auditors, evaluators, analysts and criminal investigators (special agents who are often armed). They are supposed to detect or prevent fraud, waste, abuse, and mismanagement in the programs and operations of their parent agencies. Today, there are more than 70 Inspectors General (IG) attached to most every federal agency.
Jurisdiction and Power
While most IG investigations are internal to their parent agencies, the IG jurisdiction extends beyond employees to include contractors, grantees and recipients of federal loans or other subsidies. Federal employees can face discipline for refusal to cooperate with an IG investigation. In addition, IGs can compel the production of documents though administrative subpoenas.
While their jurisdiction is broad, IGs have no direct power to compel their agency to take or refrain from any action. Instead, they influence or provoke official reactions through issuance of various reports, findings, advisories and alerts.
Most Inspectors General are appointed by the President and confirmed by the Senate while some others are named by their respective agency heads. Presidentially appointed IGs can only be removed by the President, whereas designated Inspectors General can be terminated or transferred by the agency head. There is no check on these removal powers except that in both cases Congress must be notified of the reason and, under Trump, his preemptory removal of IGs for issuing reports that displeased him compromised their perceived independence.
Inspectors General are supposed to be independent of the agency head but the degree of actual independence varies with the appointee.
Disclosures & Investigations
A federal employee can make a disclosure to his/her agency’s IG and that disclosure is protected under the Whistleblower Protection Act.
Although a disclosure to an IG could lead to an investigation that may expose and publicize an issue, there is no defined process, as in a disclosure to the Office of Special Counsel, as to how they are handled. For example, an IG –
- May ignore and does not have to act upon the information it is given;
- Can reframe an issue to probe trivial aspects while ignoring more profound or meaningful implications;
- Decide to investigate the whistleblower rather than what is disclosed;
- May move so slowly on a disclosure as to make its final report moot; and
- Does not have to publish their reports.
In some instances, PEER has had to submit Freedom of Information Act requests or even sue to obtain IG reports.
An employee may request that his or her name not be disclosed to the agency. The Inspector General Act forbids an IG from disclosing an employee/informant’s identity except where the “Inspector General determines such disclosure is unavoidable during the course of the investigation.” [5 U.S.C. app. 3 §7(b)] A decision by the IG to disclose may not be reviewable and may lack a remedy even if an abuse of discretion is shown.
Checks against Abuse
The Inspector General Act insulates IGs from constraints on the scope or manner of their investigations. [5 U.S.C. app. 3 §6(a)] As a result, there are few checks against abusive tactics by IG agents or punitive, misdirected investigations. For example, one IG investigation:
- Took four years before petering out without finding any specific misconduct;
- Used criminal investigators to assess scientific issues in violation of agency policy;
- Made four separate criminal referrals – all without merit and all summarily rejected;
- Careened off in new directions, far from the original probe; and
- Was reopened as a tactic to pressure the agency to bring charges against agency scientists.
The only watchdog overseeing these offices is a guild of Inspector Generals called the Council of the Inspectors General on Integrity and Efficiency. It is supposed to address “integrity, economy, and effectiveness issues” affecting IGs but since its creation in 2008 has been little in evidence.
Reprisal against Whistleblowers
As IGs have no remedial power, IGs typically refer complaints about whistleblower retaliation to entities like the Office of Special Counsel. Relatively new statutes have increased the IG role in this arena, however:
Each IG is supposed to “designate a Whistleblower Protection Ombudsman who shall educate agency employees – (i) about prohibitions on retaliation for protected disclosures; and (ii) who have made or are contemplating making a protected disclosure about the rights and remedies against retaliation for protected disclosures.”
This role is merely advisory as the law stipulates that the “Whistleblower Protection Ombudsman shall not act as a legal representative, agent, or advocate of the employee or former employee.” [5 U.S.C. app. 3 §3(d)]
Contract Employee Whistleblower Retaliation
By virtue of a new statute, complaints of whistleblower retaliation by employees of federal contractors, subcontractors and grantees are now initially investigated by the IG for the agency issuing the underlying contract or grant.