- In FY 2005, NIJ did not enforce the external investigation certification requirement of the Justice for All Act of 2004 or exercise effective oversight of the Coverdell Grant Program. Specifically, the FY 2005 Coverdell Grant Program Announcement did not provide applicants with necessary guidance for meeting the external investigation certification requirement. NIJ was aware of the shortcomings in the announcement but failed to correct them. The lack of guidance in the Coverdell Grant Program Announcement resulted in a variety of inadequate external investigation certifications.
NIJ did not provide necessary guidance to applicants in its FY 2005 Coverdell Grant Program Announcement.
The FY 2005 Coverdell Grant Program Announcement did not provide adequate guidance to potential applicants on how to meet the external investigation certification requirement. The announcement did not provide examples of the types of government entities and processes that could meet the certification, or specify a particular format for submitting the certification, such as a standard form, template letter, or narrative description. Rather, NIJ simply informed potential applicants that a certification was required by statute. The announcement also did not require applicants to provide a statement naming the government entity with a process in place to conduct the independent external investigation required by the Justice for All Act of 2004. Because the Department relies on applicants’ statements in the grant application process, it is important that the applicants’ certifications contain information necessary to evaluate the validity of the certification and to support sanctions if applicants’ certifications are later determined to be false. We believe that with regard to the external investigation certification, the name of the government entity responsible for conducting the investigations is necessary to evaluate the certification and impose sanctions if the certification is later shown to be false.
We asked NIJ why the FY 2005 Coverdell Grant Program Announcement did not require applicants to provide the name of the government entity as part of the external investigation certification. NIJ responded that it is the applicants’ responsibility to decide whether they can meet the certification requirement and that NIJ would accept the applicants’ certifications without requiring them to provide the name or other information identifying the government entity responsible for conducting independent external investigations. We asked OJP’s General Counsel whether it would have been reasonable to require applicants to provide a statement naming the government entity. The General Counsel agreed that it would be reasonable to request that applicants provide the name of the government entity.
NIJ was aware of the shortcomings in the FY 2005 Coverdell Grant Program Announcement but failed to correct them.
Prior to the publication of the FY 2005 Coverdell Grant Program Announcement, NIJ received inquiries from potential applicants and representatives from the Innocence Project on the external investigation certification. In February 2005, representatives from the Innocence Project and NIJ attended a panel discussion at the annual meeting of the American Academy of Forensic Sciences. The panel discussion covered the requirements of the external investigation certification, the types of government entities that will oversee the investigations, the parameters of the investigations, and the effect on other quality assurance program obligations.
Innocence Project representatives also expressed concerns regarding the implementation of the certification requirement. Specifically, Innocence Project representatives expressed the need for Coverdell applicants to receive guidance on what constitutes an adequate external investigation certification. Beginning in February 2005, the OIG encouraged NIJ to provide guidance to potential applicants on the external investigation certification and to seek advice from other Department components and external organizations on how to administer the external investigation certification requirement effectively.
Rather than provide guidance on what constitutes an adequate certification, OJP’s Office of the General Counsel and NIJ quoted the legislative language for the certification requirement in the announcement. NIJ stated it would respond to applicants’ specific questions about the external investigation certification requirement (such as whether or not a particular process might be appropriate) on a case-by-case basis after consulting OJP’s Office of the General Counsel. NIJ informed the OIG of this decision and its plan of action on April 13, 2005, and published the announcement on April 21, 2005.
After the publication of the announcement, representatives from some of the applicant agencies and other state and local government officials questioned NIJ about the form and content of the external investigation certification. Representatives from at least five applicant agencies requested clarification from NIJ on whether their agencies’ structure would permit them to certify that a government entity existed and a process was in place to conduct the required independent external investigation. NIJ staff forwarded these questions to OJP’s Office of the General Counsel. According to attorneys in the Office of the General Counsel, they provided informal guidance to applicants, without dispensing legal advice, regarding the criteria to determine whether a government entity existed and whether an appropriate process was in place to conduct the required independent external investigations. OJP’s Office of the General Counsel did not record the informal guidance it provided to Coverdell Grant applicants.
We asked the attorneys in OJP’s Office of the General Counsel how they evaluated the information the applicants provided. They responded that they did not tell applicants whether they could legally make the external investigation certification because it is the applicant’s responsibility to certify that a process is in place to conduct the required investigations, and OJP’s Office of the General Counsel is not permitted to provide legal advice to applicants. According to attorneys in OJP’s Office of the General Counsel, they told applicants that the certification does not require that the applicant agency be directly responsible for conducting the investigations itself; rather, applicants are only responsible for certifying that a government entity exists and an appropriate process is in place to conduct independent external investigations. Attorneys in OJP’s Office of the General Counsel stated that if there were any doubts about the validity of a certification, it would be NIJ’s responsibility to obtain additional information from the applicants.
On May 12, 2005, the OIG wrote to the NIJ Director, expressing concerns about the announcement and the external investigation certification. The OIG memorandum stated:
We believe that the NIJ will not have the information necessary to evaluate the applications and to exercise effective oversight over the certification requirement. We also believe that grantees have not been given sufficient guidance as to what constitutes an independent external investigation.
However, NIJ did not provide additional guidance as to what constituted an appropriate process to conduct independent external investigations before the application period closed. Instead, NIJ directed the five applicants that asked specific questions to submit their applications - in order to meet the May 24, 2005, application deadline - without the external investigation certifications. OJP’s Office of the General Counsel recommended to NIJ that it flag these five applications and ensure that the applicants submitted the external investigation certifications before their applications were approved.
OIG representatives met with NIJ on May 27, 2005. The OIG expressed continued concern that NIJ would not have the information necessary to evaluate the external investigation certification requirement in the applications and to exercise effective oversight over that requirement. However, NIJ did not revise and reissue the FY 2005 Coverdell Grant Program Announcement to include guidance or collect additional information from individual applicants on a case-by-case basis.
The lack of guidance in the Coverdell Grant Program Announcement and NIJ’s response to the applicants’ questions resulted in inadequate certifications.
The OIG reviewed the external investigation certifications in all 223 FY 2005 Coverdell applications. We found that 87 applicants did not submit any external investigation certification or submitted incomplete certifications.12 Another 56 applicants quoted the Justice for All Act of 2004 but did not provide the name of the government entity that would conduct the independent external investigations (Chart 1, next page). OJP’s Office of the General Counsel told us that NIJ did not request that they review the 149 applications that contained external investigation certifications to determine the legal adequacy of the certification. Consequently, OJP’s Office of the General Counsel told us it was unaware that some of the initial certifications did not contain the information required by statute.
Chart 1: Types of External Investigation Certifications Submitted
by the 223 FY 2005 Coverdell Applicants
| Source: OIG analysis of FY 2005 Coverdell applications received by NIJ |
We believe the inadequate certifications were caused by NIJ’s failure to provide adequate guidance to applicants and to request, in the Coverdell Grant Program Announcement, a statement from the applicants containing the name of the government entity responsible for conducting the independent external investigation envisioned by the Justice for All Act of 2004. Providing the name of the government entity would not be an undue burden on applicants; more than half (80 of 149) of the applicants who submitted external investigation certifications named the government entity responsible for conducting independent external investigations or provided a letter from the government entity even though they were not required to do so.
- After the FY 2005 Coverdell Grant applications were received, NIJ provided additional guidance but directed applicants to complete a re-certification form that did not request the information necessary for NIJ to evaluate the applicants’ external investigation certifications.
NIJ’s re-certification form did not provide specific guidance to applicants.
After receiving these applications, NIJ decided to provide general guidance and require all applicants to complete a re-certification form. NIJ disseminated the form as part of a re-certification package it provided to all 223 applicants via e-mail on June 30, 2005. In addition to the re-certification form, NIJ provided applicants with guidance to assist them in determining whether they could properly make the certification. The guidance contained eight factual examples of government entities and processes under which an external investigation certification might or might not be appropriate. NIJ instructed applicants to review the statutory requirements and the eight examples to determine whether they could properly make the external certification. If, after reviewing the information, an applicant determined that it could certify, an appropriate official for the applicant agency was to simply sign the re-certification form.
As shown in Appendix I, the re-certification form only required the name of the applicant agency and a signature from the applicant agency’s certifying official. NIJ stated that the certifying official must be both familiar with the requirements of the certification and have the authority to make such a certification on behalf of the applicants. NIJ told applicants not to submit specific documentation on the government entity or process that they had in place for conducting investigations. Applicants were to submit the signed re-certification forms by July 20, 2005.
The re-certification forms did not require applicants to submit the information necessary to evaluate the applicants’ certifications.
While NIJ’s re-certification effort finally provided some guidance to applicants as to what constituted a government entity with an appropriate process in place to conduct independent external investigations, the re-certification process was still flawed. The re-certification form NIJ instructed applicants to submit did not require them to name the government entity that would conduct independent external investigations. It also did not provide any evidence that the government entity acknowledged its responsibility, under the Justice for All Act of 2004, to investigate allegations of serious negligence or misconduct by the grant recipient.
Rather than requiring re-certification forms, we believe that after NIJ received the applications containing inadequate certifications, NIJ should have required all applicants to name the government entity in the certification. We also believe that NIJ should have considered whether to require applicants to provide a letter from that entity acknowledging its responsibility to investigate allegations of serious negligence or misconduct. 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.13 NIJ has required such letters in two other grant announcements: the Forensic Casework DNA Backlog Reduction Program (FY 2005) and the Convicted Offender DNA Backlog Reduction Program (FY 2005).
Because of NIJ’s failure to require this information, none of the re-certification forms submitted by the applicants contained the information necessary for NIJ to evaluate the external investigation certifications. Of the 223 applicants, 25 did not re-certify. Of the 198 applicants that re-certified, 129 submitted the re-certification form that NIJ requested, 33 submitted certifications signed by an official of an agency other than the applicant, and 36 submitted forms that did not clearly indicate the name of the government agency submitting the certification (Chart 2, next page). However, NIJ approved all 198 grant applications.
Chart 2: Types of Re-certifications Submitted by
the 223 FY 2005 Coverdell Applicants
| Source: OIG analysis of FY 2005 Coverdell re-certification forms received by NIJ |
In fact, in some cases, NIJ’s re-certification form gathered less information than some applicants were willing to supply voluntarily. We found that 51 applicants that named the government entity on their original certifications did not do so on their re-certification forms. We also determined that NIJ did not ask OJP’s Office of the General Counsel to review the applicants’ re-certification forms; OJP’s Office of the General Counsel was therefore unaware that some of the re-certification forms did not contain the name of the applicant agency that NIJ requested, or that some were not signed by an appropriate official of the applicant agency.
Rather than relying on a form, we believe that adopting the practice of requiring Coverdell Grant applicants to submit a letter from the government entity responsible for conducting the independent external investigations could: (1) reduce applicants’ confusion over their ability to submit the certification, (2) produce a greater number of complete certifications, and (3) increase NIJ’s and OJP’s ability to evaluate the applicants’ certifications.
- The 13 incomplete certifications were submitted by 8 applicants who certified that a process was in place but did not name entity other than themselves; 4 applicants who certified the existence of more than 1 government entity, but did not certify that any processes were in place; and 1 applicant who certified that it would collect certifications from grant recipients prior to distributing funds.
- See National Institute of Justice Guidelines: How to Submit Applications, March 2005, p. 16.
