Inspector General Authority

to Conduct Regulatory Investigations

The Inspector General Act of 1978, as amended, does not generally vest in the Inspector General of the Department of Labor the authority to conduct investigations pursuant to regulatory statutes administered by the Department of Labor. The Inspector General has an oversight rather than a direct role in investigations conducted pursuant to regulatory statutes: he may investigate the Department’s conduct of regulatory investigations, but may not conduct such investigations himself.

The responsibility to conduct regulatory investigations cannot be delegated by the Secretary to the Inspector General pursuant to section 9(a)(2) of the Inspector General Act.

The significant investigative authority granted to Inspectors General under the Inspector General Act includes the authority to investigate recipients of federal funds, such as con­ tractors and grantees, to determine if they are complying with federal laws and regula­ tions and the authority to investigate the policies and actions of the Departments and their employees. This latter authority includes the authority to exercise “oversight” over the investigations that are integral to the programs of the Department.

March 9, 1989

Mem orandum Opin io n fo r t h e Solicitor

De pa r tm en t o f Labor

This memorandum responds to the request of September 23, 1988, as 

supplemented by a letter of December 5, 1988, for the opinion of this 

Office as to the scope of the investigative authority of the Inspector 

General of the Department of Labor under the Inspector General Act of 

1978, Pub. L. No. 95-452, 92 Stat. 1101 (1978), as thereafter amended (codified as amended at 5 U.S.C. app. §§ 1-9) (“the Act”). Specifically, we were 

asked to determine whether the authority granted the Inspector General 

includes the authority to conduct investigations pursuant to statutes that 

provide the Department with regulatory jurisdiction over private individuals and entities that do not receive federal funds.

As set forth below, we conclude that the Act does not generally vest in 

the Inspector General authority to conduct investigations pursuant to 

regulatory statutes administered by the Department of Labor.1 Rather,

1 We shall henceforth refer to such investigations as “regulatory investigations " Such investigations 

generally have as their objective regulatory compliance by private parties On the other hand, investigations properly within the ambit of the Inspector General generally have as their objective the elimination

Continued

54
Congress intended the Inspector General to be an objective official free 

from general regulatory responsibilities who investigated the employees 

and operations of the Department, as well as its contractors, grantees and 

other recipients of federal funds, so as to root out waste and fraud. Thus, 

the Inspector General has an oversight rather than a direct role in investigations conducted pursuant to regulatory statutes: he may investigate 

the Department’s conduct of regulatory investigations but may not conduct such investigations himself.2

I. Background

A dispute has arisen between the Solicitor and Inspector General of the 

Department of Labor as to the types of investigations the Inspector 

General is authorized to conduct. It is undisputed that the Inspector 

General is authorized to conduct investigations of the Department’s operations, employees, contractors, grantees and other recipients of federal 

funds. What is disputed is whether the Inspector General is also authorized to conduct investigations pursuant to statutes that grant the 

Department regulatory authority over individuals and entities outside the 

Department who do not receive federal funds.

The dispute has precipitated interest beyond the Department of Labor.3 

At issue is the authority of the Inspector General under regulatory

1 ( .continued)

of waste and fraud in governmental departments, including waste and fraud among its employees, contractors, grantees and other recipients of federal funds As we note below, however, see infra note 20, the 

Inspector General may investigate private parties who do not receive federal funds when they act in collusion with the Department’s employees or other recipients of federal funds to avoid regulatory compliance.

2 When our opinion was first requested in this matter, we attempted to limit our opinion to the specific situation that prom pted the dispute between the Solicitor of Labor and the Inspector General See

Letter for George R Salem, Solicitor of Labor, from Douglas W. Kmiec, Assistant Attorney General, Office 

of Legal Counsel (Oct. 28,1988); Letter for J. Brian Hyland, Inspector General, Department of Labor, from 

Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel (Oct. 28,1988). Your predecessor 

replied that the dispute had not arisen from a specific statutory or factual context, but rather from the 

Inspector General’s claim of “general authority to investigate any violation of any statute administered 

or enforced by the Department." Letter for Douglas W Kmiec, from George R Salem at 1 (Dec 5, 1988) 

In his response, the Inspector General agreed that the dispute concerned the existence of such general 

authority Letter for Douglas W. Kmiec, from J. Brian Hyland (Dec 22, 1988) (“Hyland Letter"). 

Accordingly, while we have made reference to certain specific regulatory schemes (such as the Fair 

Labor Standards Act) which Mr. Salem offered as paradigmatic examples of statutes giving rise to the 

general dispute, we have responded to the request with an opinion establishing general principles We 

would be pleased to give more specific guidance with respect to the scope of the Inspector General’s 

authority in the context of a particular statutory scheme should you or the Inspector General so request.

3 The Inspector General Act is a generic one in the sense that its core provisions apply to most of the 

departments and agencies of the federal government. See 5 U.S C app. §§ 2(1), 11(2) & 8E Our opinion, 

therefore, will necessarily have applicability beyond the Department of Labor For this reason, this opinion has been of interest to various Inspectors General in other departments, and in addition to the materials submitted by the Inspector General of the Department of Labor, we have reviewed carefully the letters and memoranda other Inspectors General have submitted to us. Memorandum for Dennis C 

Whitfield, Deputy Secretary of Labor, from Richard Kusserow, Inspector General, Department of I lealth 

and Human Services (“HHS”) (Oct. 6, 1988); Letter for Douglas W. Kmiec, Assistant Attorney General,

Continued

55
statutes such as the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201- 

219, and the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. §§ 

651-678, which impose restrictions on individuals and entities who are 

not employees of a Department and who are not contractors, grantees or 

other recipients of federal funds distributed by the Department.4 FLSA, 

for instance, requires that a fixed minimum wage be paid to any covered 

employee, id. § 206, as well as imposing other regulatory requirements 

such as restricting the work week to 40 hours unless the employee is 

compensated at not less than one and one half times the regular rate. Id.

§ 207. Similarly, OSHA imposes on employers the duty to furnish a safe 

workplace and to comply with the safety standards promulgated by the 

Secretary of Labor under its authority. Id. § 654(a).

The Secretary of Labor is the official charged with administering these 

statutes. That authority includes specific grants of enforcement and 

investigative authority. See, e.g., id. §§ 212(b), 657. The Inspector 

General, however, believes that the provisions of the Act granting him 

authority to conduct investigations “relating to the programs” of the 

Department vest in him general investigative authority under these regulatory statutes. Memorandum for the Deputy Secretary, Department of 

Labor, from J. Brian Hyland, Inspector General, Department of Labor, Re:

Authority of Inspector General at 2 (Oct. 17, 1988) (“Hyland Memo”).5 

Indeed, he argues that since the Act gives him authority to “supervise” all 

investigations “relating to programs” of the Department of Labor, he has 

supervisory authority over the Secretary of Labor with respect to her 

exercise of her statutory authority to conduct investigations pursuant to 

the regulatory statutes the Department administers. Id. at 7.

The Solicitor disagrees. He views the Inspector General as an auditor 

and internal investigator for the Department — authorized to investigate 

the operations of the Department, the conduct of its employees and the 

Department’s contractors, grantees and other recipients of federal funds.6

3 ( . continued)

Office of Legal Counsel, from Charles R. Gillum, Inspector General, Small Business Administration (Nov.

4, 1988), Letter for Douglas W Kmiec, from John W Melchner, Inspector General, Department of 

Transportation (Dec 1, 1988), Letter for Douglas W Krruec, from Paul A Adams, Inspector General, 

D epartm ent of Housing and Urban Development (Nov. 30, 1988), Letter for Douglas W Kmiec, from 

Francis D. DeGeorge, Inspector General, Department of Commerce (Dec 1, 1988)

4 At our request, the Solicitor provided a detailed description of three investigations undertaken by the

Inspector General. This was to clarify fo r our benefit the nature of the dispute between the Solicitor and 

the Inspector General We have addressed here the general legal question asked by the Solicitor. We 

express no opinion as to whether any o f these particular investigations was authorized.

6 The Inspector General does not claim that he has the same enforcement and litigative authority as the 

Secretary of Labor. For instance, he neither claims authority under the FLSA to impose civil monetary 

penalties, nor the authority to initiate civil litigation Rather, he claims the authority to conduct regulatory investigations and refer the results to the Department o f Justice for civil action or criminal prosecution.

GThe Solicitor does not question the authority of the Inspector General to conduct investigations relating to organized crime and racketeering to the extent that authority derives from the jurisdiction of the

Continued

56
II. Discussion

The Act established the Office of Inspector General in the Department 

of Labor and in the other covered departments. The purpose of the Act, 

as stated in section 2, is “to create independent and objective units” to 

“conduct and supervise audits and investigations relating to the programs 

and operations” of the covered departments, 5 U.S.C. app. § 2(1), and “to 

provide leadership and coordination and recommend policies for activities designed (A) to promote economy, efficiency, and effectiveness in 

the administration of, and (B) to prevent and detect fraud and abuse in, 

such programs and operations.” Id. § 2(2).

Section 4 of the Act provides authority that is correlative to these 

responsibilities:

(a) It shall be the duty and responsibility of each Inspector 

General, with respect to the establishment within which his 

Office is established—

(1) to provide policy direction for and to conduct, supervise, and coordinate audits and investigations relating to 

the programs and operations of such establishment;

(3) to recommend policies for, and to conduct, supervise, or coordinate other activities carried out or 

financed by such establishment for the purpose of promoting economy and efficiency in the administration of, 

or preventing and detecting fraud and abuse in, its programs and operations; ....

Id. § 4(a). Furthermore, section 6(a)(2) authorizes the Inspector General 

“to make such investigations and reports relating to the administration of 

the programs and operations of the applicable establishment as are [in 

his judgment] necessary or desirable.” Id. § 6(a)(2).

Finally, section 9(a)(2) authorizes the transfer of “such other offices or 

agencies, or functions, powers, or duties thereof, as the head of the establishment involved may determine are properly related to the functions of

6 (...continued)

Office of Special Investigations whose functions were specifically transferred to the Inspector General 

in the Act. 5 U S C. app § 9(a)(1)(G). Various issues relating to the scope of that authority are addressed 

m an earlier opinion of this Office Memorandum for Stephen S. Trott, Assistant Attorney General, 

Criminal Division, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, Re

On-Site Inspection of Books and Records in Criminal Investigations of Labor Unions and Employee

Benefit Plans (Dec. 23, 1983)

57
the [Inspector General] and would, if so transferred, further the purposes of this Act,” but adds the caveat: “except that there shall not be 

transferred to an Inspector General ... program operating responsibilities.” Id. § 9(a)(2).

The question presented is the meaning of the phrase “relating to the 

programs and operations” in section 4 and “relating to the administration 

of the programs and operations” in section 6, as well as similar language 

elsewhere in the Act.7 The Act does not define terms such as “investigations” and “programs,” nor does the Act expressly address whether the 

Inspector General is authorized to conduct investigations pursuant to 

regulatory statutes administered by the Department. But we think the 

meaning of the statutory language is clear when examined in the context 

of the structure and legislative history of the Act.

The impetus for the Inspector General Act of 1978 was revelations of 

significant corruption and waste in the operations of the federal government, and among contractors, grantees and other recipients of federal 

funds. S. Rep. No. 1071, 95th Cong., 2d Sess. 4 (1978). Furthermore, 

Congress concluded that the existing audit and investigative units were 

inadequate to deal with this problem because they reported to, and were 

supervised by, the officials whose programs they were to audit and investigate. Id. at 5-6; H.R. Rep. No. 584, 95th Cong., 1st Sess. 5 (1977).

The Act addressed both the underlying problem and this organizational defect. The Inspector General was to deal with “fraud, abuse and waste 

in the operations of Federal departments and agencies and in federallyfunded programs.” S. Rep. No. 1071 at 4. The Inspector General was to be 

an objective official reporting directly to the head of the department and 

not to the program head whose operations were to be audited and investigated. H.R. Rep. No. 584 at 11. This objectivity was to be fostered by a

7 In a supplemental letter to us, the Inspector General argues that it is necessary to accept his broad 

view of his authority lest a situation be created whereby there was no entity investigating a wide-range 

of criminal offenses under the regulatory jurisdiction of the Department of Labor Letter for Douglas W 

Kmiec, Assistant Attorney General, Office of Legal Counsel, from J. Brian Hyland, Inspector General, 

Departm ent of Labor (Dec 22, 1988). Specifically, he argues that while the Department of Labor may generally have criminal investigative authority over the offenses listed in the labor provisions (title 29 of the 

U S. Code), it does not, with one specific exception, have criminal investigative authority over the general criminal provision of title 18 Id. at 1-2. By contrast, the Inspector General argues that he does possess criminal investigative authority under title 18 Id at 2.

The Inspector General’s argument is misconceived. We have no doubt that the Inspector General has 

criminal investigative authority, see 5 U S C. app. § 4(d), United States v Aero Mayflower Transit Co.,

831 F.2d 1142, 1145 & n 3 (D C. Cir. 1987), but he only has that authority within the scope of his statutonly-granted investigative authonty It is the scope of that authority that is at issue here

Moreover, we note that it would by no means be anomalous if neither the Secretary of Labor nor the 

Inspector General had criminal investigative authonty over some statutory violation that affected the 

Departm ent of Labor. The Federal Bureau of Investigation (“FBI”) has general criminal investigative 

authonty over all violations of federal law. 28 U.S C § 533(1); 28 C F.R. § 0.85(a) (1989). See also 28 U S C 

§ 535. Other departm ents or agencies have authonty to conduct cnminal investigations only “when investigative junsdiction has been assigned by law to such departm ents and agencies." 28 U S.C. § 533. Thus, 

it is not unusual for the FBI to have exclusive cnminal investigative authority with regard to certain 

statutory violations.

58
lack of conflicting policy responsibility: “[T]he legislation gives the 

[Inspector General] no conflicting policy responsibilities which could 

divert his attention or divide his time; his sole responsibility is to coordinate auditing and investigating efforts and other policy initiatives 

designed to promote the economy; efficiency and effectiveness of the 

programs of the establishment.” S. Rep. No. 1071 at 7.

The legislative history of the Act reflects a consistent understanding 

that the role of the Inspector General was to be that of an investigator 

who would audit and investigate the operations of the departments and 

their federally-funded programs. See, e.g., S. Rep. No. 1071 at 27 (“The 

[Inspector General’s] focus is the way in which Federal tax dollars are 

spent by the agency, both in its internal operations and its federally-funded programs.”).8 The legislative history also rejects the idea that 

Inspectors General would have the authority to conduct regulatory investigations of the type at issue here. The most comprehensive statement is 

in the House Report:

While Inspectors General would have direct responsibility 

for conducting audits and investigations relating to the effi8 The Inspector General has quoted to us various statem ents made by Members of Congress during 

hearings or debates that he asserts support his view that Congress intended that Inspectors General have 

authonty to investigate violations of regulatory statutes administered by their departments. These quotations include general statem ents to the effect that Inspectors General were to have broad authority to 

investigate the programs and employees of the departments, see, e g , Hyland Memo at 3 (quoting Rep 

Fountain), as well as general statem ents that Inspectors General would restore public confidence in government, see, e g ,id at 4 n.8 (quoting Rep. Levitas) None of these quotations provides support for the 

view that Congress intended to vest the Inspectors General with authority over regulatory investigations 

The Inspector General also argues that the hearings made Congress aware that the then-existing 

Inspectors General were undertaking regulatory investigations under the departm ents’ regulatory 

statutes, but the evidence he cites does not support Iiis argument For instance, he quotes a report submitted to a Senate Committee at the same time as the Senate was considering the Act in which the 

Inspector General of the Department of Health, Education and Welfare defined “abuse" as covering “a 

wide variety of excessive services or program violations, and improper practices,” id at 4, but there is 

nothing in the quotation to indicate that the reference to “program violations" meant general regulatory 

enforcement rather than violations of law committed by department employees or its contractors or 

employees. Similarly, the Inspector General cites references in the testimony of the non-statutory 

Inspector General of the Department of Agnculture at the House committee hearings regarding investigations of meat and grain inspections which had been conducted by his office. We have examined the 

portions of the testimony of the Inspector General and other officials of the Department of Agriculture 

at these heanngs which dealt with these investigations The only relevant colloquy we can find occurred 

when Representative Jenrette asked the Audit Director of the Department of Agnculture whether the 

“m ajonty” of ihese investigations had to do with employees of that Department. The response was: “Yes,

I would say most of the time it had to do with some sort of inspection function and inspection employees Also, the plants that had been afforded meat inspection service or meat grading service.” 

Establishment of Offices of Inspector General- Hearings on H.R. 2819 Before the Subcomm of the

House Comm, on Government Opei'ations, 95th C ong, 1st Sess. at 47 (1977) Representative Jenrette 

then responded that this was appropnate because “employees of the Department should certainly 

have oversight . before the citizen on the street,” and that the people the taxpayers are paying should 

be subject to “control” and “investigation].” Id We believe, m fact, that the grain inspectors who had 

been the subjects of these investigations were licensees of the Department of Agnculture not employees. 

In any event, this testimony hardly provides support for the view that Congress generally understood that 

conducting regulatory investigations was part of the role of Inspectors General

59
ciency and economy of program operations and the prevention 

and detention of fraud and abuse in such programs, they would,

not have such responsibility for audits and investigations

constituting an integral part of the programs involved.

Examples of this would be audits conducted by USDA’s 

Packers and Stockyards Administration in the course of its regulation of livestock marketing and investigations conducted

by the Department of Labor as a means of enforcing the Fair

Labor Standards Act. In such cases, the Inspector General 

would have oversight rather than direct responsibility.

H.R. Rep. No. 584 at 12-13 (emphasis added). See also S. Rep. No. 1071 at 

27-28.9

The statement in the House Report that Inspectors General were to 

have “oversight” but not “responsibility for audits and investigations constituting an integral part of the program involved” is not surprising 

because to vest such authority in the Inspectors General would have constituted a fundamental alteration in the departments’ regulatory authority. It would have taken away the power to control the investigatory portion of a department’s regulatory policy from the official designated by 

statute or by the Secretary10 and placed it in an official separate from the 

regulatory division of the department.11 As the legislative history makes

9 Similarly, Representative Levitas stated

The Inspectors General to be appointed by the President with the advice and consent of the 

Senate will first of all be independent and have no program responsibilities to divide allegiances. The Inspectors General will be responsible for audits and investigations only

Moreover, the Offices of Inspector General would no t be a new “layer of bureaucracy” to 

plague the public. They would deal exclusively with the internal operations of the departm ents and agencies Their public contact would only be for the beneficial and needed purpose of receiving complaints about problem s with agency administration and in the investigation of fraud and abuse by those persons who are misusing or stealing taxpayer dollars.

124 Cong. Rec. 10,405 (1978).

10 F or instance, as we have noted before, the Secretary of Labor is expressly provided with authority 

to engage in investigations to assure com pliance with the health and safety regulations of OSHA. See 29 

US.C §657

11 The Inspector General argues, however, that no “policy" considerations would be implicated by his 

having supervisory authority over the regulatory investigations of the Department. While conceding that 

“[djecisions regarding the emphasis, focus, and type [civil, criminal, administrative] of program enforcement, and the best use o f available program resources, can have substantive ‘policy’ ramifications,” he 

states that “these considerations have little or no bearing when potential criminal violations are 

involved,” and that it is toward uncovering such cnminal violations that he intends to direct his efforts. 

Hyland Memo at 8. The Inspector General’s argument fails to recognize that whether to choose cnminal 

over civil remedies is one of the classic “policy" choices that a regulator must make.

The Inspector General also argues th at his investigative activity implicates no “policy” concerns 

because he will refer cases to the Department of Justice, which will make the final decision as to whether 

to file criminal charges. Hyland Letter a t 2-3 It is true th at the Department of Justice has the final say 

over w hether criminal charges will be filed. 28 U.S.C. §§ 516, 519 But it is equally true that the 

Departm ent of Justice is responsive to the policy judgm ents of the refem ng agencies, and will, within the 

limits of available resources, generally follow the wishes of the referring agency as to questions such as 

the appropnate balance between criminal and civil enforcement.

60
clear, however, it was not the intention of Congress to make such a fundamental change in the regulatory structure of the departments and agencies of the federal government. Rather, Congress was concerned with 

waste of federal funds and the need for an independent official who could 

review the employees and operations of federal agencies.

The statement in the House Report that Inspectors General were not to 

conduct investigations “constituting an integral part of the programs 

involved” is also dictated by the nature of the Inspector General’s role. The 

purpose of creating an Inspector General was to have an official in the 

department who would not have responsibility for the operations of the 

department and would thus be free to investigate and criticize. If the 

Inspector General undertakes investigations under the department’s regulatory statutes, he could not perform this role. One of the Inspector General’s 

functions is to criticize regulatory investigative policy, a function he cannot 

perform if it is his responsibility to set and implement that policy.

The Inspector General, for instance, indicates that he disagrees with 

the current regulatory investigative policy of OSHA which he views as 

illustrating “an ingrained philosophy of enforcement that subordinates 

and trivializes the investigation and prosecution of significant criminal 

felony violations in favor of civil and administrative remedies and petty 

criminal offenses (e.g., misdemeanors).” Hyland letter at 4. We would 

expect therefore that the Inspector General might discharge his statutory 

“oversight” duty by preparing a report for the Secretary and Congress 

detailing this criticism of OSHA’s regulatory investigative policies. See 5 

U.S.C. app. § 5. However, once the Inspector General assumes authority 

over OSHA’s regulatory investigative activity — as under his interpretation of the statutory language he is bound to do12 — he would become an 

official responsible for implementing policy. Thus, with regard to the regulatory investigations the Inspector General would be undertaking, there 

would be no truly objective person to investigate claims of misbehavior 

and abuse. The purpose of the Act is not only to protect the taxpayers’ 

money, but also to serve as a check on mistreatment or abuse of the general public by government employees. If the Inspector General, however, 

is conducting and supervising regulatory investigations of the department, the very evil that Congress wanted to avoid by establishing an 

objective Inspector General would be created: namely, the responsible 

official would be charged with auditing and investigating his own office.

In sum, we think that the legislative history and structure of the Act 

provides compelling evidence that in granting the Inspector General 

authority to “conduct and supervise audits and investigations relating to

12 Specifically, the Inspector General argues that the statutory mandate in section 4(a)(1) that the 

Inspector General is “to provide policy direction for and to conduct, supervise, and coordinate audits and 

investigations relating to the programs arid operations o f’ the department vests supervisoiy power in him 

over all investigations conducted by the Department of Labor, including investigations such as those conducted under OSHA that are integral to the regulatory enforcement of the program. Hyland Memo at 7.

61
the programs and operations” of the department, 5 U.S.C. app. § 2(1), 

Congress did not intend to grant the Inspector General authority to conduct, in the words of the House Report, “investigations constituting an 

integral part of the programs involved.” Rather, the Inspector General’s 

authority with respect to investigations pursuant to the Department’s regulatory statutes is, again in the words of the House Report, one of “oversight.” We therefore conclude that investigations undertaken pursuant to 

the Department of Labor’s regulatory statutes, such as FLSA and the 

OSHA, are not the type authorized by the Act.

We also conclude that this type of regulatory investigative authority 

cannot be delegated by the Secretary to the Inspector General under section 9(a)(2) of the Act.13 Section 9(a)(2) authorizes the Secretary to transfer additional functions to the Inspector General but only if they are 

“properly related” to the functions of the Inspector General and would 

“further the purposes of this Act.” It specifically forbids the transfer of 

“program operating responsibilities” to the Inspector General. Whether 

or not the conduct of investigations pursuant to regulatory statutes constitutes “program operating responsibilities” within the meaning of the 

Act, such investigative authority, as outlined above, is inconsistent with 

structure and purpose of the Act and cannot be said to be “properly related” to the Inspector General’s functions, nor could the transfer of these 

functions to the Inspector General be said to “further the purpose of the 

Act.”14 Thus, if the Secretary and the Inspector General believe that there 

is a need for the Inspector General to undertake particular types of regulatory investigations, they should seek from Congress specific amendments of the Act.15

13 We do not address whether any other statute provides the Secretary with authonty to delegate such functions to the Inspector General Nor do we address how any such provision should be reconciled with the 

Act’s express prohibition on the transfer of “program operating responsibilities” to an Inspector General.

Moreover, while we do not agree that section 9(a)(2) provides authonty to delegate the conduct of regulatory investigations to the Inspector General of Health and Human Services, see Memorandum for 

Dennis C Whitfield, Deputy Secretary o f Labor, from Richard R Kusserow, Inspector General, 

D epartm ent of Health and Human Services a t 6-7 (Oct. 6, 1988), we believe that the Inspector General 

may possess authonty to conduct certain investigations into the programs he references (such as 

Medicare) as part of his responsibility under the Act to investigate regulatory compliance by recipients 

of federal funds We have not been asked, however, to review any specific statutes under the junsdiction 

o f the Secretary of HHS and thus do not address this question.

14 We also disagree with the Inspector General that he can assume cnminal investigative authonty by 

m eans of a Memorandum of Understanding (“MOU") with the FBI. As this Office has previously stated, 

the Attorney General does not have the authonty to delegate his cnrrunal investigative authonty under 

28 U S C § 533 to other departments or agencies of the government See, e.g., Department of Labor

Jurisdiction to Investigate Certain Criminal Mattel's, 10 Op. O.L.C. 130, 132-33 (1986). An MOU with 

the FBI is only appropnate where the departm ent or agency already has cnminal investigative authonty 

concurrent with that of the FBI. Id. at 133

Accordingly, insofar as any MOU purports to provide the Inspector General with cnminal investigative 

authority not specifically granted by statute, it should be revised. On the other hand, the Department of 

Justice may deputize officials in other agencies, including investigators assigned to an Inspector 

General’s office, to enforce the cnminal law Of course, cnminal investigations by deputized officials in 

other agencies remain under the supervision of the Departm ent of Justice.

62
Our conclusions here are consistent with the decision of the district 

court in United States v. Montgomery County Crisis Center, 676 F. Supp. 

98 (D. Md. 1987).16 In this case, the Inspector General of the Department 

of Defense had issued a subpoena to a community counseling center 

seeking production of documents relating to telephone calls made by a 

member of the United States Navy who was allegedly suicidal and who 

had allegedly disclosed classified information during the telephone calls. 

In holding the subpoena to be outside the scope of the Inspector 

General’s authority, the court pointed to a number of factors including 

privacy concerns, no one of which was necessarily dispositive. Id. at 99. 

Three of the factors the court pointed to, however, are relevant here. The 

court stated:

First the “investigation” to which the subpoena relates 

concerns a security matter, not one involving alleged fraud, 

inefficiency or waste — the prevention of which is the 

Inspector General’s clearest statutory charge.

Second, the “investigation” is not even ostensibly related 

to a general programmatic review but is limited to tracking 

down the source of one alleged security breach.

[In addition,] although the Inspector General is authorized to issue subpoenas to carry out all of his “functions 

assigned by ... [law],” the language of the Senate Committee Report on the 1978 Inspector General Act makes 

clear that in granting him subpoena power Congress was 

focusing upon obtaining records necessary to audit and 

investigate the expenditure of federal funds.

15 The Act itself contains what appears to be at least one specific exception m the authorization of the 

transfer of the Office of Special Investigations in the Department of Labor to the Inspector General. See

supra note 6 In 1988, there was also an attem pt to transfer the Office of Investigations at the Nuclear 

Regulatory Commission (“NRC") to the new office of the Inspector General of NRC, but that attem pt did 

not succeed See infra note 19.

16The conclusion we reach here is also consistent with an earlier opinion of this Office Authonty of

the State Department Office of Security to Investigate Passport and Visa Fraud, 8 Op. O L C 175 

(1984). In this opinion we considered among other questions whether the Inspector General of the 

Department of State had authority only to investigate “passport and visa malfeasance” under 18 U S C. 

§§ 1542-1546 (malfeasance or cnminal activity on the part of Department of State employees in obtaining passports or visas for themselves or others) or whether he also could investigate “passport and visa 

fraud” under 18 U SC § 1541 (cnminal deceit in passport or visa acquisition by persons other than 

Department of State employees) At that time, the authonty of the Inspector General of the Department 

of State denved from the Foreign Service Act of 1980, 22 U S.C § 3929 (The Department of State was 

first brought within the ambit of the Act by Pub L No 99-399, 100 Stat. 867 (1986) ) The Foreign Service 

Act, however, had been “patterned” after the Inspector General Act of 1978 and explicitly incorporated

Continued

63
Id. While Montgomery Crisis Center involved a different type of investigation than those at issue here, the court’s analysis of the Inspector 

General’s statutory investigative authority supports the conclusions we 

have reached.

We also note that the legislative history of the recent amendments to 

the Act, Pub. L. No. 100-504, 102 Stat. 2515 (1988) (to be codified at 5 

U.S.C. app.), which extended its coverage to a number of other 

Departments, including the Treasury Department and the Department of 

Justice, as well as extending the Inspector General concept to 33 other 

“designated federal entities,” displays an understanding of the authority 

of the Inspector General that is fully consistent with the conclusions we 

have reached in this opinion. For instance, the House Report responded 

to concerns that extending the Act to the Department of Justice would 

interfere with the Department’s investigative and law enforcement functions in the following language:

10 ( . continued)

the portions of the Act granting investigative authority. Thus, we looked to the structure and legislative 

history of the Act for guidance in determining the scope of the investigative authonty possessed by the 

Inspector General under the Foreign Service Act. 8 Op. O.L.C at 177-78 Our conclusion was that legislative history of the Act “strongly suggests that Congress intended that the focus of the Inspector 

General’s authority be on the conduct of Departm ent employees or contractors as opposed to the conduct of outside persons who may have occasion to deal with the Department ” Id. at 178. Ultimately we 

concluded that Inspector Generals did not have authonty to investigate “passport and visa fraud," i.e.,

fraud not involving employees of the Department of State. Id at 179

Our opinion is also consistent with various judicial decisions upholding the subpoena power of 

Inspectors General in cases involving investigations of contractor or grantee fraud. See, eg., Uniled

States v. Westinghouse Elec Corp., 788 F2d 164 (3d Cir. 1986) (Inspector General of Department of 

Defense investigation of defense contractor), United States Dep’t of Hous and Urban Dev v. Sutton, 68 

B R. 89 (E.D. Mo. 1986) (Inspector General of HUD investigation of properties insured by HUD) The only 

judicial opinion that we are aware of that is possibly inconsistent with our opinion is an unreported distn c t court opinion that was supplied to us by the Inspector General, United States v H P. Connor (Civ. 

No. 85-4638, D N J , Dec. 9, 1985). This decision involved the enforcem ent of a subpoena issued by the 

Inspector General in the course of an investigation of alleged Davis-Bacon Act violations. In an opinion 

enforcing the subpoena, the court stated “No argument can be made that this investigation is beyond the 

Inspector General’s statutory grant." Slip Op. at 6. There is no citation or reasoning to support this statement, and it is unclear from the opinion whether this issue was even argued We think the issue of 

w hether the Inspector General of the Labor Department has general authority to investigate all federal 

contractors under the Davis-Bacon Act is m ore complex than the distnct court’s opinion reveals.

The Davis-Bacon Act requires federal contractors to pay a minimum wage (established by reference to 

prevailing wages in the community) 40 U.S.C. § 276(a). The Secretary of Labor is expressly given authority to conduct investigations to assure com pliance with these requirements See Reorg. Plan No. 14 of 

1950, 5 U S.C. app at 1261. In order to assure compliance with the Davis-Bacon Act, we understand the 

Secretary of Labor may investigate not only contractors of the Department of Labor but any federal contractor To the extent this is true, investigations of contractors outside the Department of Labor seem 

akin to regulatory investigations because they are unrelated to waste and fraud in the operations of the 

Departm ent of Labor itself or among its employees, contractors or grantees Thus, there is a substantial 

question w hether it is appropriate for the Inspector General of the Department of Labor to conduct general investigations of Davis-Bacon Act compliance by federal contractors outside the Department of 

Labor. Before rendering an opinion on the scope of the authonty of the Inspector General of the 

Departm ent of Labor to conduct investigations pursuant to the Davis-Bacon Act, however, we would 

want your views and those of the Inspector General on how this issue should be resolved in light of the 

general principles set ou t in this opinion and the specific provisions of the Davis-Bacon Act

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A simple extension of the 1978 act to include the Department of Justice would not result in a direct and significant 

distortion and diffusion of the Attorney General’s responsibilities to investigate, prosecute, or to institute suit when 

necessary to uphold Federal law. The investigation and 

prosecution of suspected violations of Federal law and the 

conduct of litigation are parts of the basic mission or program functions of the Department of Justice. The 1978 act 

does not authorize inspectors general to engage in program 

functions and, in fact specifically prohibits the assignment 

of such responsibilities to an inspector general.

H.R. Rep. No. 771, 100th Cong., 2d Sess. 9 (1988).

Similarly, the House Report described the provisions of the proposed 

bill (to be codified as section 8E of the Act) which extended the Inspector 

General concept17 to 33 other federal entities as requiring “that multiple 

audit and investigative units in an agency (except for units carrying out

audits or investigations as an integral part of the program of the

agency) be consolidated into a single Office of Inspector General ... who 

would report directly to the agency head and to the Congress.” Id. at 14 

(emphasis added).18 This statement is followed almost immediately by 

the statement that these newly-created “inspectors general would have 

the same authorities and responsibilities as those provided in the 1978 

act.” Id. at 15. It is also significant that a provision in the Senate bill that 

would have transferred to the newly-created Office of the Inspector 

General at the Nuclear Regulatory Commission the office that conducted 

the Commission’s regulatory investigations was dropped after objections 

were raised by several Senators.19

17 The principal difference between the Inspectors General at these 33 entities and the Inspectors 

General in the other departm ents and agencies is that the former are appointed, and removable, by the 

head of the agency or entities rather than by the President See 5 U.S C. app. § 8E(c).

18 This quotation is from the Committee report descnbing the bill that was passed by the House, and 

the relevant provisions of which were adopted by the House-Senate conference and enacted into law. An 

earlier version of the bill introduced in the House, see 134 Cong. Rec. 3013 (1988), but never voted on, as 

well as the bill passed by the Senate, see 134 Cong Rec. 612 (1988), included a definition of the “audit 

units” that were to be established in the other federal establishments that tracks the quoted language in 

the Committee report A comparison of the two versions of the House bill indicates that the definition 

was dropped as part of a simplification of the structure of the bill whereby the concept of the Inspector 

General was incorporated by reference rather than being defined There is nothing in the House debates 

to suggest that the deletion of this definition from the earlier version of the bill was intended to have substantive effect. This is confirmed by the Conference Report, which in describing the reconciliation of the 

relevant portions of the House and Senate bills does not indicate that the deletion of the definition of 

“audit unit" from the Senate bill was understood to have any substantive consequences. See 134 Cong. 

Rec 27,283 (1988)

19 The bill as introduced in the Senate provided for the transfer to the newly-created Office of the 

Inspector General at the Nuclear Regulatory Commission not only the personnel and functions of the 

Office of Internal Audit which performed “the typical IG functions — that is, internal audit and investigations,” 134 Cong Rec 616 (1988) (statem ent of Sen. Glenn), but also the functions of the Office of

Continued

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Finally, in light of the genuine concern expressed to us by some 

Inspectors General, we think it worthwhile to set out briefly the significant investigatory authority that is granted to Inspectors General under 

the Act. Without purporting to provide a complete description of the 

nature and scope of these authorities, we simply note that the Inspector 

General: (1) has authority to investigate recipients of federal funds, such 

as contractors and grantees, to determine if they are complying with federal laws and regulations,20 and (2) can investigate the policies and 

actions of the Departments and their employees.21 Of significance here, 

this latter authority includes the authority to exercise “oversight” over 

the investigations that are integral to the programs of the Department. 

Thus, the Inspector General has the authority to review regulatory inves19 ( continued)

Investigations (“OI”), which conducted program investigations of NRC licensees The Senate Report 

described the transfer of OI to the Inspector General as “consistent” with the Act S Rep. No. 150,100th 

Cong., 1st Sess. 18 (1987). When the bill w as reported from the Committee to the full Senate, however, 

there was objection to the transfer of OI to the Office of the Inspector General on the ground that it 

would interfere with the authonty of the Commission to perform its regulatory functions resulting from 

its loss of control of the investigative unit which conducted investigations integral to the Commission’s 

regulatory mission. 134 Cong Rec. 616 (1988) As a result, the Committee Chairman, Senator Glenn, 

agreed to drop the transfer of 01 to the Office of the Inspector General from the bill Id

20 Thus, our opinion should not be understood as suggesting that the Inspector General does not have 

authonty to conduct investigations that are external to the Department He clearly has that authority in 

the case of federal contractors, grantees and other recipients of federal funds, as well as authonty to 

investigate individuals or entities that are alleged to be involved with employees of the Department in 

cases involving employee misconduct or other activities involving fraud, waste and abuse. For instance, 

the Inspector General would clearly be able to undertake investigations into the conduct of a corporation that paid bribes to an employee of the Department of Labor to overlook violations of OSHA 

regulations.

21 The Solicitor of Labor does not challenge the exercise of such authonty by the Inspector General:

(T]he Inspector General of DOL and I are in full agreement that if the IG’s office has reason 

to believe that som e sort of misfeasance or malfeasance by DOL personnel has occurred, the 

IG’s Office is fully authorized to investigate such possible misconduct, whether or not the 

investigation of a program violation is also involved. Secondly, the investigations to which 

this question is directed do not include any which might be directed against a recipient of 

funds from the Department, w hether those funds have been obtained by means of lawful or 

unlawful activity, so long as the investigation is directed at activities which occurred in connection with the receipt or use of the DOL funds.

Letter for Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from George Salem, 

Solicitor of Labor, at 2 (Dec. 5, 1988). T he Inspector General brought to our attention a 1981 letter from 

the Cnm inal Division of the Department of Justice The letter was in response to an inquiry from the 

General Counsel of the Department of Health and Human Services as to the authority of the Inspector 

General to investigate violations of the Food and Drug Act The relevant portion of the letter statesWe are of the opinion that the legislation establishing the Inspectors General was generally 

no t intended to replace the regulatory function of an agency such as FDA to investigate possible violations of the Act However, we also feel that as part of the IG’s general oversight 

responsibilities, he is authonzed to investigate allegations of improprieties within the program s of his departm ent or agency. Therefore, we can envision situations where FDA and/or 

the IG will be investigating alleged violations of the Act 

Letter for Juan A. del Real, General Counsel, HHS, from D Lowell Jensen, Assistant Attorney General, 

Criminal Division (Dec. 10, 1981) The Inspector General suggests that this letter supports his view that

Continued

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tigative activities of the Department of Labor, and to report his criticism 

and findings to the head of the department and Congress. All we conclude here is that the Act does not give the Inspector General the authority to assume these regulatory investigative responsibilities himself.

Douglas W. Km iec

Assistant Attorney General

Office of Legal Counsel

21 (•••continued)

he has authonty to conduct regulatory investigations. We find nothing in this letter inconsistent with our 

conclusion here Lake the Criminal Division in 1981, we believe that the Inspector General is authorized 

to investigate “allegations of improprieties within the programs of his departm ent” and thus we too can 

envision situations where the Inspector General of HHS would investigate alleged violations of the Food 

and Drug Act. An obvious example of such a situation would be when there were allegations that employees of the Food and Drug Administration had been bribed to approve a drug for sale to the public.

67