Review of the Office of Justice Programsí Paul Coverdell Forensic Science Improvement Grants Program

Evaluation and Inspections Report I-2008-001
January 2008
Office of the Inspector General


Appendix III
The Office of Justice Programs Response

U. S. Department of Justice
Office of Justice Programs

Office of the Assistant General
Washington, DC 20531

January 14, 2008


MEMORANDUM TO: Glenn A. Fine
Inspector General

THROUGH: Paul A. Price
Assistant Inspector General for Evaluation and Inspections

FROM: Jeffrey L. Sedgwick (signature)
Acting Assistant Attorney General

SUBJECT: Draft Report on Review of Office of Justice Programsí Forensic Science Improvement Grants Program, Assignment Number A-2007-001

This memorandum responds to the draft report of the Office of the Inspector General (OIG) issued January 10, 2008, regarding a review of the Paul Coverdell Forensic Science Improvement Grants Program administered by the Office of Justice Programs (OJP). The OIG focused on the “external investigation certification requirement” established by section 311(b)(3) of the Justice for All Act of 2004, which amended section 2802 of the Omnibus Crime Control and Safe Streets Act of 1968 to add a requirement that States or units of local government requesting Coverdell grants 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 substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system, medical examiner’s office, coroner’s office, law enforcement storage facility, or medical facility in the State that will receive a portion of the grant amount.

42 U.S.C. § 3797k(4).

ANALYSIS OF THE OIG REVIEW AND DRAFT REPORT

The Coverdell Program is designed to improve the timeliness and quality of forensic science and medical examiner services and to eliminate backlogs in the analysis of forensic evidence. As acknowledged by the OIG in its draft report, OJP has complied with the external investigation certification requirement added by the Justice for All Act. As a matter of policy, however, the OIG has indicated that OJP could improve the administration of the Coverdell Program to provide greater assurance that allegations of serious negligence or misconduct involving forensic laboratories are investigated fully and independently.

OJP and the OIG share a common interest in the improvement of the practice of forensic science. The Coverdell Program has been administered successfully by OJP for several years. As part of its program management, OJP collects four different certifications from the Coverdell grant applicants, including the one at issue in the OIG draft report. As of Fiscal Year (FY) 2007, OJP requires Coverdell grant applicants, prior to receiving funds, to provide the name of the government entity (or entities) with a process in place to conduct independent external investigations into allegations of serious negligence or misconduct. OJP forwards Coverdell applications that have a competitive component to independent peer review to ensure that competitive funds are awarded to agencies where the funding will have the most benefit. OJP attaches special conditions to each Coverdell award to help ensure compliance with various federal statutes, regulations, and policies designed to provide assurance that federal funds are used appropriately. In FY 2007, as many as 17 special conditions were attached to individual grant awards. OJP reviews Coverdell applicants’ budgets to ensure they are in keeping with the work promised in the grant application and consistent with Coverdell Program statutory and policy requirements. OJP monitors grantees through the Grants Progress Assessments program to review laboratory practices and grant compliance. OJP collects performance data for each grant. OJP views the management controls outlined here as the most critical for effectively managing the Coverdell Program.

OJP remains committed to providing federal leadership in the improvement of forensic practice and enhancing the administration of justice through the expansion of forensic science capacity. OJP’s forensic programs have made great progress in the improvement of forensic practices through the Coverdell Program, DNA assistance programs, research and development, training activities, and many related efforts. These award-wining programs have assisted in the investigation of thousands of cases of violent crime and provided historic levels of support to the forensic laboratories. With OJP funding, the National Academy of Sciences has undertaken a full review of forensic practice in the United States, an effort that is expected to provide important recommendations to extend current efforts and improve the governance and standards of forensic disciplines.

With respect to the external investigation certification requirement of the Coverdell statute, one question is whether OJP has complied with the statutory requirement by obtaining external investigation certifications from applicants. The OIG in its draft report acknowledges that OJP has done so. The statute requires Coverdell Program applicants to provide a particular certification and OJP collects that certification. Moreover, in keeping with recommendations from a prior OIG review of this matter, OJP now requires that, prior to receiving funds, applicants name the government entity (or entities) that has an appropriate process in place to conduct independent external investigations in the relevant cases.

A second, separate, question with respect to the external investigation certification requirement is whether the statutory requirement itself is effective to accomplish what appear to be its intended purposes. From the draft report, it appears that this is the OIG’s principal concern. For example, the OIG indicates that allegations of serious negligence or misconduct should be referred for investigation to a government entity with an appropriate process in place to conduct independent external investigations. While OJP certainly agrees that such referrals are consonant with the external investigation certification requirement, the statute itself imposes no requirement for referrals. OJP’s proper administration of the statute therefore may not be sufficient to achieve the policy objective. Failure to achieve a policy objective not incorporated into the statute, however, is not something for which OJP should be held responsible. Rather, it appears that the more appropriate approach may be through the legislative process. Absent amendment of the statute, OJP must honor the certification basis it establishes. As we all recognize, no law pursues its goals at all costs, and the substantive limitations contained in a statute are no less an indication of its intention than its substantive grants of authority are.

In this context, it is not surprising that the OIG identified cases in which investigations of alleged wrongdoing might be conducted, at least in part, within the forensic laboratory. The Coverdell Program statute does require a government entity with an appropriate process in place to conduct independent external investigations. It does not require that every possible allegation be referred to that entity for investigation, however, regardless of scope or merit. The requirement that a government entity exist with a process in place for independent external investigations thus does not preclude the use of internal processes by state and local officials, prior to or in lieu of referral to a government entity.

Separately, with regard to the OIG observation that 38 grantees submitted certifications that were signed by individuals who “did not appear” to be from the applicant agency, OJP has reviewed a list of the 38 grantees provided by the OIG, has re-examined the associated certifications, and has found that many were signed by individuals who (even if not officers or employees of the government agency) appeared to have the appropriate authority to sign the certification with respect to that agency. For example, a state attorney general or a police chief with oversight of the forensic laboratory would appear to have the proper authority to sign the certification. (In addition, many questions as to authority would seem to be obviated by the fact that the grantee itself submits the certification as part of its grant application, which alone suggests that the grantee makes the certification its own, regardless of who may have signed it.) OJP acknowledges that in some instances, the grantee state administering agency submitted multiple certifications on behalf of the forensic laboratories that actually were going to be the ultimate recipients of the grant funds, rather than a single certification from the state administering agency itself. While such sub-grantee certifications will not be accepted in lieu of a grantee certification in future years, OJP nonetheless notes that the certifications that were obtained, though insufficient under the law, honored much of its apparent intent.

Finally, language in the OIG draft report suggests that the OIG may have concerns as to whether certain certifications submitted in FY 2006 were false. Any false certifications are a matter of grave concern to OJP. Although the certification regime established by the statute authorizes OJP to rely upon applicants’ certifications as prima facie evidence of what they certify, OJP is, of course, prepared to take appropriate oversight action – for example, if it were to receive credible information that suggests that a certification were false. OJP, however, was not a party to the OIG conversations with the officials in question and at this time has no proper basis for action, such as referral, as appropriate, for investigation, prosecution, or other disposition as may be appropriate (cf. 18 U.S.C. § 1001). (Here, OJP is not even aware of which applicants or officials may be involved.) If OJP should become aware of specific facts concerning false certifications, the OIG will be asked to conduct an appropriate investigation into the matter. OJP has referred similar matters in the forensic programs and other OJP grant programs to the OIG in the past.

Additional Clarifications

In addition to the foregoing, the following comments are offered to address and clarify certain statements in the OIG draft report:

On page i of the Executive Summary (and on numbered pages 3-4), in connection with the discussion of the December 2005 OIG report and the OIG finding that OJP had not enforced the external investigation certification requirement, it is appropriate to note that the OIG’s own General Counsel later agreed with OJP, as memorialized in an August 3, 2006, letter from the Department’s Office of Legal Counsel, that “... OIG, like OJP, believes that section 3797k(4) is satisfied as a legal matter when OJP receives a basic certification from an applicant that replicates the language of section 3797k(4), and that OJP’s certification practices have been in full compliance with the legal requirements of section 3797k(4).”

On page ii of the Executive Summary and elsewhere, the draft report refers to “certified entities” (or “government entities certified” or “entities certified”) in connection with the FY 2006 Coverdell Program. It is important to clarify that the FY 2006 certification form did not request the name of the government entity (or entities). In connection with FY 2006, the OIG uses these terms to refer not to entities identified in the certifications (no identification having been requested), but to entities identified after the fact to the OIG by individuals who may or may not have been the individuals who signed the certifications to OJP.

On numbered page 10, the draft report indicates that the OIG determined that, with respect to 43 entities and although there were processes in place, they did not deem those processes “appropriate.” OJP notes that, given the certification basis of the Coverdell statute as it pertains to eligibility and external investigations, it is the applicant State or unit of local government that, based on its understanding of the law (including OJP’s guidance), in principle must determine if the process in place is “appropriate.”

On numbered page 11, the draft report notes that some certifying officials did not discuss the certification with a representative of the “government entity” before making it. OJP notes that the Coverdell statute imposes no such requirement. In this connection, OJP observes that if OJP were to certify that the FBI has the authority to investigate violations of Federal law, the certification would not be weakened or false or otherwise flawed if OJP did not notify the FBI that it would be making the certification.

On numbered page 13, in footnote 15, the draft report states that “In the FY 2006 Coverdell Program Announcement, OJP instructed applicants to submit an external investigation certification and to use the template in the announcement....” To clarify, the FY 2006 solicitation did indicate that an external investigation certification was required to request a grant; the solicitation also clearly stated, however, that “Applicants are expected to review the requirements of each certification carefully before determining whether the certification properly can be made. Any certification that is submitted must be executed by an official who is both familiar with the requirements of the certification and authorized to make the certification on behalf of the applicant agency. Applicants must use the certification templates....”

RESPONSE TO THE OIG RECOMMENDATIONS

The OIG draft report contains three policy recommendations. For ease of review, each of the three recommendations included in the draft report is restated in bold, followed by our response to the recommendation:

  1. Revise the certification template to require that applicants name the government entities and confirm that the government entities have:

    1. the authority
    2. the independence
    3. a process in place that excludes laboratory management, and
    4. the resources

    to conduct independent external investigations into allegations of serious negligence or misconduct by the forensic laboratories that will receive Coverdell Program funds.

    OJP will, as it did in FY 2007, require Coverdell grant applicants, prior to receiving funds, to provide the name of the government entity (or entities) with a process in place to conduct independent external investigations into allegations of serious negligence or misconduct. OJP also intends – in order to further reinforce the serious legal implications of the certification – to modify its certification form to include these statements: “I personally read and reviewed the section entitled “Eligibility” in the Fiscal Year 2008 program announcement for the Coverdell Forensic Science Improvement Grants Program,” and “I acknowledge that a false statement in this certification or in the grant application that it supports may be subject to criminal prosecution, including under 18 U.S.C. § 1001.”

    OJP disagrees with the recommendation to include other additional language on the certification form. The certification form already includes the complete language of 42 U.S.C. § 3797k(4) as enacted into law. OJP is reluctant to impose eligibility requirements other than those contained in the statute. To the extent that significantly stricter eligibility requirements would further policy objectives that appear to underlie the statute, OJP believes the matter is properly left to the legislative process.

  2. Provide applicants with guidance that allegations of serious negligence or misconduct substantially affecting the integrity of forensic results are to be referred to the certified government entities.

  3. As indicated earlier, OJP certainly agrees that referrals of allegations of serious negligence or misconduct to government entities with a process in place to conduct independent external investigations are consonant with the statute, although not required by it. In keeping with the statute, therefore, OJP agrees to provide applicants with guidance that encourages such referrals.

  4. Revise and document the Coverdell Program application review process so that only applicants that submit complete external investigation certifications are awarded grants.

  5. OJP agrees to require applicants to provide a complete external investigation certification prior to receiving funds. While an award may be made due to fiscal year time constraints, grantees will not have access to grant funds until a completed certification as to external investigations is submitted. Much as it did in FY 2006 and 2007, OJP will review certifications to ensure that they are filled out completely and follow the language of the certification form, and will use a spreadsheet to document that an external investigation certification is received for each State or unit of local government that receives a grant. In addition, OJP will provide the OIG with written program management guidelines for the Coverdell Program that will encompass the review of applications for the external investigation certification as well as other requirements of the program.


cc: Beth McGarry
Deputy Assistant Attorney General
For Operations and Management

David W. Hagy
Acting Principal Deputy Director
National Institute of Justice

LeToya A. Johnson
Deputy Director, Audit and Review Division
Office of Audit, Assessment, and Management

Richard P. Theis
Assistant Director, Audit Liaison Group
Justice Management Division



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