Inspectors General: Comparison of Ways Law Enforcement Authority Is Granted
Released: 2002-06-21T00:00:00

Letter

Background

The Inspector General Act of 1978, as amended, among other things, identified specific federal departments and agencies that are required to have IGs appointed by the president, by and with the advice and consent of the Senate. The act also requires each such IG to appoint an assistant inspector general for investigations to supervise the performance of investigative activities, including criminal investigations, relating to their agencies’ programs and operations.

Although presidentially appointed IGs have the authority to conduct criminal investigations, the IGs have not been granted across-the-board statutory law enforcement authority. However, as the role of the presidentially appointed IGs in active investigations of criminal activity expanded, so too did their requests for deputation seeking the authority to make warrantless arrests, obtain and execute warrants, and carry firearms to reduce requests for assistance from other law enforcement personnel in dangerous situations. Subsequently, 23 presidentially appointed IGs’ criminal investigators received law enforcement authority through case- by-case deputation granted by the USMS. Under this process, the presidentially appointed IGs applied for deputation for each criminal investigator in each case where the need was anticipated. Upon completion of the case, the deputation and its accompanying law enforcement authority expired, and the process would start over again.

In 1995, in an effort to reduce paperwork and excessive delays, certain presidentially appointed IGs began receiving 1-year deputation law enforcement authority for criminal investigators. Appendix I provides a list of the 23 deputized IGs who requested and received annual deputation. As of January 2001, these deputized IGs renew their law enforcement authority for a 3-year period, rather than annually. This process includes (1) requesting temporary law enforcement authority and obtaining approval from DOJ, (2) submitting a formal deputation application to DOJ, and (3) taking an oath. Deputized IGs’ criminal investigators must also adhere to the terms and conditions disclosed in a DOJ memorandum of understanding (MOU). The MOU is designed to provide DOJ guidance and oversight of IG criminal investigator training and conduct of criminal investigations.

Although not passed, proposed legislation (S. 3144) was introduced during the 106th Congress, which would have, among other things, provided criminal investigators in specified IG offices (see appendix I) with certain statutory law enforcement authorities. Under this bill, deputized IGs would (1) no longer be required to renew their law enforcement authority through the USMS; and (2) obtain a statutory basis for carrying firearms, making certain types of warrantless arrests, and executing warrants.

In addition, the bill contained provisions for oversight over the IGs. The bill, for example, provided for “peer reviews” of IGs by other IGs. (The results of such reviews would have been forwarded to the applicable IG and the Attorney General) and required DOJ’s continued oversight of IGs’ activities, such as involving the FBI when initiating certain criminal investigations. In addition, the Attorney General would have the authority, under certain conditions, to rescind or suspend such law enforcement authority of these IGs.

Scope and Methodology

To compare the similarities and differences between providing statutory authority and deputation, we examined MOUs, federal statutes, operating manuals, and other pertinent documents between the two groups of IGs. We also interviewed officials involved with the deputation program and/or related efforts to obtain statutory authority for the deputized IGs. This included officials in Washington, D.C., from the USMS, FBI, DOJ’s Criminal Division, OMB, and selected presidentially appointed IGs with deputation—HHS, GSA, DOJ IG, OPM, and the PCIE. In addition, we identified and interviewed three presidentially appointed IGs—USDA, DOD, TIGTA—having statutory authority comparable to the law enforcement authority granted to deputized IGs. We obtained perspectives and relevant documents related to their use of law enforcement authority. We compared the scope of law enforcement authority, supervision, and training of IG criminal investigators for both methods.

To obtain views of deputized IGs on whether statutory authority would improve their investigative practices or impact their current jurisdictions, we surveyed and received responses from all 23 deputized IGs (see app. II for the questionnaire).

To identify the cost and any savings that might result by switching from deputation to statutory authority, we reviewed congressional hearing documents and the CBO cost analysis associated with a recent legislative proposal. In addition, we interviewed officials from DOJ, OMB, CBO, and selected IGs to obtain applicable cost and savings information.

We performed our work from May 2001 through May 2002 in accordance with generally accepted government auditing standards.

Statutory and Deputized IGs’ Law Enforcement Authority is Similar, but Differences Exist in Oversight Requirements

Regardless of the origin of law enforcement authority—either through statutory authority or deputation, IGs’ scope of law enforcement authority, supervision, and training are similar. However, differences exist in the level of DOJ’s oversight given to the deputized IGs by DOJ.

Similarities

Whether under statute or deputation, IGs’ law enforcement authority is similar. Our comparative analysis revealed that IGs have comparable duties, practices, and standards regarding their (1) scope of law enforcement authority to make warrantless arrests, obtain and execute warrants, and carry firearms; (2) supervision of criminal investigators, which generally provides for day-to-day oversight by an agency official such as a special agent-in-charge; and (3) training standards. For example, IG criminal investigators with statutory authority and IG criminal investigators with deputation train together at the Federal Law Enforcement Training Center located in Glynco, Georgia. The facility provides both groups the same basic training curriculum in matters such as firearms, search and seizure, and arrest procedures as well as criminal investigator-specialized training.

Differences

We found differences in the level of DOJ oversight for IGs who are deputized by DOJ. Deputized IGs must renew their law enforcement authority every 3 years, while IGs with statutory authority do not have this requirement. DOJ established a process for granting and renewing deputation that allows its deputy attorney general, Criminal Division, FBI, and the USMS to review certain aspects of deputized IGs activities. The purpose of this process is to determine whether deputized IGs continue to meet standards for (1) keeping firearms skills current, (2) providing adequate training, and (3) coordinating with federal prosecutors and other federal law enforcement agencies.

As part of DOJ’s deputation process, deputized IGs are required to report to DOJ annually on the results they achieved, as a condition for renewing their deputation. Table 1 summarizes the results achieved with deputation from 1998 through 2000 that we identified from deputized IG responses to our survey.

Both DOJ and FBI officials told us that the reporting requirement is being re-evaluated, and DOJ said that it is outdated and no longer used as a condition for renewing deputized IGs’ law enforcement authority. Furthermore, DOJ said that no deputized IG has been denied its deputation renewal request.

In addition, deputized IGs are required to notify the FBI when initiating certain criminal investigations as well as work jointly with the FBI on certain other sensitive investigations. The three presidentially appointed IGs with statutory authority do not have a specific statutory requirement to coordinate their investigations with the FBI. DOJ requires deputized IGs and the FBI to provide each other written notification involving areas of concurrent jurisdiction. The FBI has jurisdiction in all matters involving fraud against the federal government and jointly shares this jurisdiction with the deputized IGs in matters of fraud against each IG’s agency. DOJ also requires the FBI or another federal law enforcement agency to assist the deputized IGs when conducting specific types of sensitive investigations, such as court-ordered electronic surveillance.

According to the FBI, the purpose of these requirements is to provide oversight in order to (1) place limits on the authority of the deputized IGs’ criminal investigators, and (2) help ensure compliance with applicable DOJ guidelines, and (3) address law enforcement coordination procedures for deputized IGs when conducting their criminal investigations.

Views of Deputized IGs and Other Federal Officials on Both Methods

As requested, we obtained views of deputized IGs and other federal officials on certain matters related to statutory authority and deputation. We found that deputized IGs prefer statutory authority to deputation and most believed statutory authority would improve their investigative practices at least to some extent. Most deputized IGs also reported that statutory authority would have little impact on their current statutory jurisdictions. Other federal officials generally believed that the current deputation process has improved. DOJ has not yet settled on its position on providing law enforcement authority to deputized IGs under either method. OMB deferred the matter for DOJ’s consideration.

Deputized IGs’ Views on Certain Matters Related to Statutory Authority

Fifteen of the 23 deputized IGs reported that having statutory authority would improve their criminal investigative practices to at least some extent and 9 of these reported that statutory authority would improve their investigative practices to a great or very great extent. Three of these believed that practices would be improved because statutory authority would enhance their investigators status as fully authorized officers in the law enforcement community. Further, 20 of the 23 deputized IGs reported that granting statutory authority would change their current jurisdiction of authority to little or no extent.

Other Federal Officials’ Views on Statutory and Deputation Law Enforcement Authority

In July 2000, DOJ and OMB testified at congressional hearings in favor of a legislative proposal that would have granted statutory authority to specified IG offices. However, the issue is currently under review within the Administration, and DOJ has not yet settled on its position as of May 2002. FBI officials we interviewed said that the deputation process is a much better system of conferring law enforcement authority to the IGs because it provides greater flexibility for DOJ and appropriately places oversight responsibilities at the Attorney General level. The Attorney General has the authority to delegate these responsibilities to Justice entities including DOJ’s Criminal Division, FBI and USMS. The Attorney General has delegated this authority to USMS. Although the FBI reported no significant problems of abuse or misconduct from the deputized IGs, they continue to believe that deputation enables DOJ to ensure coordination in matters of concurrent jurisdiction. In responding to our questionnaire, OMB indicated that the issue of whether deputized IGs should be switched from deputation to statutory authority was a matter that DOJ would have to consider.

Officials with DOJ’s Criminal Division, FBI, and USMS generally agree that recent improvements, including extending the deputation renewal cycle from 1 to 3 years, will ease the processing burden.

No Significant Cost or Savings Would Result from Switching Deputized IGs to Statutory Authority

Most deputized IGs believed no significant cost or savings would derive from conferring statutory authority to them. Eighteen of the 23 deputized IGs reported that no significant cost would be associated with switching them from deputation to statutory authority. The remaining 5 deputized IGs reported that some savings would be likely by eliminating administrative responsibilities associated with preparing, processing, and reviewing deputation requests and annual reports. USMS officials told us that about 2,000 of the approximately 7,500 deputations they authorize each year are for IG criminal investigators. This number will be cut by one- third in 2004 when renewals will be done every 3 years. However, USMS currently invests less than 4 staff years in its deputation responsibilities, so the overall impact on USMS’s deputation process would be minimal. USMS would be able to reduce its workload (reviewing deputation requests) by about 27 percent annually. However, beginning in January 2004, USMS will begin renewing IGs’ deputation on a 3-year cycle.

Officials at DOJ concurred that the cost and any savings associated with switching from deputation to statutory authority would be minimal.

In addition, the CBO provided a cost estimate for a proposed bill (S. 3144) during the 106th Congress that would have granted statutory authority to specified IG offices. Because the bill would have codified powers already exercised by deputized IGs, and replaced one system of review and oversight with another, CBO estimated that implementing it would have no significant effect on federal costs. CBO told us that any costs would be less than $500,000. However, CBO told us they did not consider the potential cost related to peer review. The vice chair of the President’s Council on Integrity and Efficiency said at hearings that a legislative proposal to grant permanent statutory law enforcement authority to deputized IGs would have carried with it no additional costs, in part because the deputized IGs’ criminal investigators already (1) exercised law enforcement authority through deputation, (2) trained as criminal investigators, and (3) participated in the federal law enforcement retirement system. Officials at OMB and CBO agreed with this cost assessment.

Conclusions

With the exception of DOJ’s imposed oversight requirements, we could not identify any other significant differences relating to law enforcement authority between the three IGs with statutory authority and the 23 deputized IGs. To some extent, DOJ has eased its requirements by extending the deputation renewal cycle from 1 to 3 years. In addition, DOJ concedes that its requirement for annual reports from deputized IGs has become outdated, and DOJ is reassessing the need for the requirement. Some deputized IGs believe that their status would be enhanced if they were statutorily authorized.

Agency Comments

We received comments on a draft of this report from the PCIE (which presents the views of the IG community), and DOJ. The PCIE’s March 18, 2002, comments and DOJ’s March 25, 2002, comments are in appendixes III and IV, respectively. The PCIE disagreed with our report message. DOJ neither agreed nor disagreed with our report. Officials from these organizations also provided technical comments, which were incorporated into the report as appropriate.

The PCIE felt that GAO should have focused on determining which means of providing law enforcement authority to IGs would foster the most effective investigative process. We were not requested to address this issue and therefore it was not within the scope of our work. We did however survey all 23 IGs and obtained their views on providing law enforcement authority (see our survey results on p. 8).

The PCIE disagreed with our methodology comparing presidentially appointed IGs’ deputation with statutory law enforcement authority. They stated that we should have compared deputized IGs’ law enforcement authority to S. 3144 rather than the statutes that granted law enforcement authority to IGs at DOD, USDA, and TIGTA. The PCIE stated that S. 3144’s provisions included, among other things, the statutory law enforcement authority that they are seeking. Because legislative proposals, including proposals from a previous session of Congress, are subject to change, we do not believe it is appropriate to use S. 3144 as the basis of comparison. Moreover, based on our analysis, law enforcement authority—the authority to carry firearms, make certain arrests, and execute warrants— proposed under S. 3144 is essentially the same as granted by statute to IGs at DOD, USDA, and TIGTA. In addition, the PCIE claimed that the deputation renewal process caused an administrative burden on USMS. Our work did not support such a conclusion. The USMS told us that the deputation process has improved and that renewing deputized IGs’ law enforcement authority was the easiest task of their deputation workload.

The PCIE stated that the draft report seems to assume that, unless significant cost savings can be associated with permanent statutory law enforcement authority, temporary deputation should be retained. The PCIE said that it is a misperception that a decision on permanent statutory law enforcement authority for all IGs should be driven by cost considerations. We did not conclude or imply that significant cost savings should be a determining factor in deciding whether to switch deputized IGs to permanent statutory law enforcement authority. Rather, deputized IGs and other federal agencies including the CBO said that minimal costs or savings would result from switching from deputation to statutory authority. We were specifically asked by Congress to answer this question.

The PCIE also said that as part of its oversight mechanisms, the proposed bill (S. 3144) would have established a peer review process among deputized IGs. The PCIE said there are no known administrative burdens associated with this approach and its implementation would not increase federal expenditures. While the operational procedures of the peer review are not known, undoubtedly any review system would have some level of administrative burden and costs. For example, the PCIE’s draft peer review guidelines—“Guide for Conducting Qualitative Assessment Reviews of the Investigative Operations of Offices of Inspector General,” among other things, recommends reviewing samples of IG criminal investigators’ training and basic qualification records as well as closed investigative files to ensure adherence to professional law enforcement standards. According to the PCIE, depending on the size of the IG agency or level of detail of the review, a peer review cycle could take up to 120 days. The staff resources and activities related to scheduling, conducting, and reporting results of 23 IGs’ “peer reviews” would incur time and costs.

On May 3, 2002 the PCIE provided further comments on our draft report. The PCIE continued to disagree with our draft report for the basic reasons stated in their earlier comments. Also, the PCIE requested that we defer issuance of the final report until we obtain and incorporate DOJ’s current views. The PCIE said it had become aware that DOJ was close to making a decision and was optimistic that this decision will support a grant of statutory law enforcement authority to the deputized IGs. On May 7, 2002, DOJ told us that the matter is still under review within the administration with no estimated date of completion. As a result, we do not feel that it is appropriate to delay the report issuance. The PCIE also provided technical comments, which were incorporated into the report as appropriate.

DOJ neither agreed nor disagreed with our draft report. DOJ requested that our report state that DOJ has not settled on a position on providing law enforcement authority through either statute or deputation and that the issue is under review within the Administration. We incorporated DOJ’s suggestion into the report.

As agreed with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days from its issue date. At that time, we will send copies of this report to the acting assistant attorney general for administration; director, Office of Management and Budget; director, Congressional Budget Office; and the vice chairman, President’s Council on Integrity and Efficiency. We will also make copies available to others upon request. This report will also be available on GAO’s home page at http://www.gao.gov.

If you or your staff have any questions about this report, please call me or Weldon McPhail at (202) 512-8777. Other key contributors to this report were Clarence Tull, Veronica Mayhand, Lou V.B. Smith, David Alexander, and Geoffrey Hamilton.

Appendix I: IG Offices That Have Made Annual Deputation Requests and Received Law Enforcement Authority

This appendix lists the 23 presidentially appointed inspectors general (IGs) who have been granted deputation through calendar year 2000 for their respective criminal investigators by the Department of Justice.

Departments

Agencies

Appendix II: Data Collection Instrument of Presidentially Appointed Deputized IG Offices

Appendix III: Comments from the President’s Council on Integrity and Efficiency

Appendix IV: Comments from the Department of Justice