Review of the Office of Justice Programs’ Forensic Science Improvement Grant Program
Evaluation and Inspections Report I-2006-002
December 2005
Office of the Inspector General
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On October 13, 2005, the Office of the Inspector General (OIG) sent copies of the draft report to the Office of Justice Programs (OJP) with a request for written comments. OJP responded to us in a memorandum dated November 4, 2005. The actions taken and planned by OJP to enforce the external investigation certification requirement imposed by the Justice for All Act of 2004 are responsive in part to our recommendations. OJP’s Response OJP did not agree with our finding that the National Institute of Justice (NIJ) “did not enforce the external investigation certification requirement imposed by the Justice for All Act of 2004 [42 U.S.C. § 3797k(4)] during the application process or exercise effective oversight of this aspect of the FY 2005 Coverdell Grant Program.” In explaining its disagreement, OJP suggested – although it did not explicitly state – that it does not have the legal authority to implement the external investigation certification requirement in the manner that we suggest. OJP stated it was acting on advice of OJP counsel when it concluded that § 3797k(4) does not require that an independent external investigation process is in place before NIJ makes an award. Rather, according to OJP, the statute restricts NIJ to merely ensuring that a certification is in place before NIJ issues an award. OJP submitted that its interpretation of § 3797k(4) “makes the applicants themselves primarily responsible” for determining that a government entity exists and a process is in place to conduct independent external investigations rather than placing the responsibility on OJP. OJP concluded that once formula program applicants (which receive about 75 percent of the total funding) have made the required certifications, “NIJ is statutorily denied any substantive discretion in deciding which applicants are eligible.” In support of the validity of the existing NIJ process, OJP’s response also noted that NIJ provided additional guidance to the FY 2005 applicants and that “NIJ did not fund seven applications for the competitive portion of the program and two State applications for the formula portion of the program because the applicants did not submit the certification required by § 3797k(4) and the [FY 2005] Coverdell Grant Program Announcement.” OJP’s response also reported, “Of the 69 certifications that the Draft Report indicates vary from the form NIJ prescribed, only 37 pertain to applications that were in fact funded by NIJ.” In response to our recommendations that each Coverdell Grant applicant be required to provide the name of the government entity that will conduct any external investigation and that OJP consider requiring a letter from the government entity, OJP stated, “Because the Coverdell [Grant] [P]rogram is in large part a formula program, it is not clear that such an extra-statutory requirement would be legally defensible.” OJP’s response also suggested that the burden of providing the name of the government entity and a letter from the government entity “on applicants and/or NIJ well might be significantly heavier than the OIG may believe.” OIG Analysis of OJP’s Response The OIG disagrees with OJP’s suggestion that NIJ lacks the legal authority to execute our recommendations. First, the plain language of the statute itself grants this authority to NIJ. Second, NIJ’s actions in similar contexts demonstrate that it has the authority to implement our recommendations. Section 3797k(4) provides that a state shall submit “a certification that a government entity exists and an appropriate process is in place to conduct independent external investigations” into allegations of serious negligence or misconduct. Clearly, in enacting § 3797k(4), Congress intended to do more than merely extract a promise from the applicants that an external investigation process was in place. Rather, Congress intended for the applicants to actually put such a process into place prior to receiving grant funds. As the agency charged by Congress with implementing the Coverdell Grant Program, NIJ has inherent authority to regulate the grant application process to ensure that an external investigation process is in place. The statute expressly gives the Attorney General the authority to promulgate “procedures relating to the submission and review of applications for grants” under § 3797k.14 A reading of the plain language of § 3797k (4) , coupled with § 3797n, demonstrates that NIJ may require that the external investigation certification submitted by applicants contain both the name of the investigative government entity and a letter of support from that entity. Moreover, even if the statute were to be considered ambiguous on this point, NIJ, as the agency charged with its implementation, may reasonably interpret the statute in the course of implementation. We believe that an interpretation that the statute would allow OJP to require applicants to submit both the name of the government entity and a letter of support is a reasonable interpretation that would be entitled to deference and would withstand challenge under the Administrative Procedures Act.15 We also disagree with OJP’s conclusion that requiring the certification process to include the identity of the government entity and requiring a letter of support from that government entity shifts the responsibility for setting up such a process from the grant applicant to NIJ. Requiring grant applicants to submit the government entity’s identity and a letter of support will provide a strong disincentive for any grant applicant to make the requisite certification without first communicating with a government entity and establishing a process for conducting external investigations. The reason for this requirement is clear – by identifying the government entity, the certification becomes readily verifiable. Thus, rather than shifting the burden to OJP, our recommendation will make it more likely that the applicant will meet its burden of establishing an external investigation process and will make it easier for OJP to exercise its oversight function. OJP acknowledged this oversight function in its response when it stated that “if there were a credible allegation or credible evidence that a particular certification was false or faulty, NIJ would have a duty to inquire.” Surely, if the statute authorizes OJP to investigate allegations of false certifications, the statute also authorizes OJP to implement procedures to prevent false certifications in the first place. NIJ’s argument that it has no discretion in awarding the formula portion of the program is similarly unpersuasive. Even with funds specifically directed to be allocated to particular states, Congress required that these funds only be awarded to a state that “meets the requirements of § 3797k.”16 NIJ, by requiring that applicants provide the name of the government entity and a letter of support from that entity, can ensure that states receiving formula-funded grants are meeting the requirements of § 3797k as directed by Congress. Significantly, OJP’s position that NIJ lacks substantive discretion and may request and accept only the information specifically prescribed by § 3797k(4) from Coverdell Grant applicants is inconsistent with NIJ’s own actions with regard to the FY 2005 Coverdell Grant external investigation certifications. The 223 applications we reviewed showed that NIJ exercised its substantive discretion in both rejecting certifications that followed the prescribed format and accepting certifications that did not follow the prescribed format:
NIJ’s actions in the context of other grant applications also demonstrate that NIJ has exercised similar authority in the past. As stated in the draft report, NIJ’s Guidelines include a requirement for grant applicants to submit letters of cooperation and support or administrative agreements from organizations with a significant responsibility under the grant. NIJ has required such letters in two other grant announcements. There is no obvious reason why NIJ is permitted to prescribe procedures for grant applicants in these other contexts, but not for the Coverdell Grant Program. Indeed, NIJ’s own actions in administering the FY 2005 Coverdell Grant Program suggest that NIJ understands it does have discretion to interpret § 3797k(4). If NIJ has the authority to reject certifications in their entirety and to consider applications with no certifications, it must also have the authority to request the information reasonably necessary to evaluate the certifications that applicants do submit. Finally, to the extent that OJP rejected our legal analysis and recommendations because OJP believed that it lacks the legal authority to implement the recommendations, then we recommend that OJP seek an opinion on this issue from the Office of Legal Counsel (OLC) pursuant to 28 C.F.R. § 0.25; 28 U.S.C. § 512. Once the legal issue is resolved, then OJP can reevaluate our recommendations as a matter of policy. RECOMMENDATIONS Recommendation 1: Require that all Coverdell Grant Program Announcements contain guidance on what constitutes an independent external investigation and examples of government entities and processes that could satisfy the certification requirement. Status: Recommendation 1 is Resolved – Open. Summary of OJP’s Response. As a matter of policy, OJP concurred with our recommendation and stated that NIJ will provide guidance (including examples) in future Coverdell Grant Program Announcements. NIJ’s guidance will be designed to illustrate elements of the external investigation certification that an applicant must take into account in determining whether it can make the external investigation certification. OJP stated that the guidance it plans to provide is not required by statute. OIG Analysis. The actions taken and planned by OJP to provide guidance to Coverdell Grant Program applicants are responsive to our recommendation. Our recommendation was not based on a statutory requirement; it was based on NIJ’s program management responsibility to provide guidance to applicants whether or not a specific statute requires that NIJ provide guidance for a specific certification. So that we may evaluate the implementation of this recommendation, please provide a copy of the draft of the FY 2006 Coverdell Grant Program Announcement before it is published. Recommendation 2: Require that each Coverdell Grant applicant, prior to receiving funds, provide the name of the government entity with a process in place to conduct independent external investigations into allegations of serious negligence or misconduct. Status: Recommendation 2 is Unresolved – Open. Summary of OJP’s Response. OJP did not agree to require Coverdell Grant applicants to provide the name of the government entity because § 3797k(4) “includes no such requirement.” Further, OJP stated, “It is not clear that such an extra-statutory requirement would be legally defensible.... OJP and NIJ will, however, consider requesting, as an optional matter, in future Coverdell Grant Program Announcements that applicants provide the information that the OIG suggests we require as a mandatory matter.” OIG Analysis. To properly administer Coverdell Grants, NIJ should prescribe the form and content of certifications, review applicants’ certifications to decide if the specific information is adequate, and determine if each application is acceptable. If OJP disagrees with our legal analysis and concludes that NIJ does not have the statutory authority to implement this recommendation, we recommend that this issue be referred to OLC for resolution. If OLC determines that NIJ has the authority to implement this recommendation, OJP should reconsider its decision not to require applicants to submit the names of the government entities. Please provide us with a description of OJP’s decision by January 31, 2006. Recommendation 3: Consider requiring each Coverdell Grant applicant, prior to receiving funds, to submit a letter from the government entity that will conduct independent external investigations acknowledging that the entity has the authority and process to investigate allegations of serious negligence or misconduct. Status: Recommendation 3 is Unresolved – Open. Summary of OJP’s Response. OJP considered requiring each Coverdell Grant applicant to submit a letter from the government entity, but elected not to do so at least in part because, “It is not clear that such an extra-statutory requirement would be legally defensible.” OIG Analysis. Based on OJP’s response, it appears that OJP and NIJ are rejecting this recommendation because they believe they lack the requisite authority to implement it, despite the OIG’s conclusion to the contrary. To resolve this legal disagreement, OJP should refer the question to OLC for resolution. Should OLC determine that OJP has the requisite authority, OJP should reconsider its decision not to require each Coverdell Grant applicant to submit a letter from the government entity that will conduct independent external investigations. Please provide us with your decision by January 31, 2006. Footnotes
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