On November 5, 2007, the Office of the Inspector General (OIG) sent a copy of the draft report to the Department of Justice’s (Department) Office of Justice Programs (OJP) with a request for written comments. On January 9, 2008, the OIG met with OJP and received verbal comments, some of which we incorporated into the draft report. On January 14, 2008, OJP provided its final written response to the draft report in which it disagreed with the OIG’s conclusion that OJP’s administration of the Coverdell Program external investigation certification requirement is not effective for ensuring that allegations of serious negligence or misconduct are subject to independent external investigations.In addition, OJP concurred with two of the OIG’s three recommendations and disagreed with one.
In essence, OJP’s position was that the Coverdell Program statute required only a certification from the grantee, that OJP had complied with this requirement, and that therefore its oversight of the requirement was not deficient.
We disagree with OJP’s narrow view of its responsibilities in administering this important grant program. We believe that OJP’s responsibility extends beyond the bare minimum of compliance with the literal terms of the statute. Rather, OJP has a responsibility to ensure that the required certifications are meaningful and that grantees actually have the means and intention to follow through on their certifications should an allegation of serious negligence or misconduct arise. This is especially true when, as our reviews have identified, the certifications from current grant recipients are incomplete and inaccurate, and when the entities certified by the grantees report that they do not meet the certification requirement. In short, OJP has a responsibility to monitor and oversee the grant program, which includes ensuring that the grantees’ certifications are correct. As we discuss in this analysis of OJP’s response, we believe that OJP’s actions, and its response, take an inappropriately limited view of its responsibilities and attempt to shift responsibility for the deficiencies in the administration of the Coverdell Program to others.
The following sections summarize and analyze the main points of OJP’s response to the report findings and recommendations.
SUMMARY AND OIG ANALYSIS OF OJP RESPONSE
OJP’s Comments on the OIG Report
OJP Administration. After introductory comments, the OJP response states that “(t)he Coverdell Program has been administered successfully for several years” and lists examples of program management activities that OJP has in place to administer the program. These include applying special conditions, peer review of applications, collecting performance data, monitoring grantees through the Grants Program Assessment program, and requiring that applicants name the government entity they certify meets the external investigation certification requirement. OJP also states its commitment to improving forensic science.
OIG Analysis. While the OIG did not review every aspect of OJP’s administration of the Coverdell Program, our review found that OJP’s administration of the external investigation certification requirement was not effective. For example, as we describe in this report and in our December 2005 report, OJP failed to provide adequate instruction to grant applicants; failed to require applicants confirm to OJP to that applicants identified entities capable of conducting independent external investigations of wrongdoing; did not effectively review the certifications to ensure that they were completed accurately; and provided questionable guidance to an inquiry from a grantee regarding whether forensic laboratories are expected to refer allegations of serious wrongdoing for independent investigation. Moreover, as we will describe in later sections, OJP manifests a continuing unwillingness to act upon information that should alert it that, notwithstanding the certifications it collects, many grantees and sub-grantees lack the processes for having serious allegations of wrongdoing independently investigated. Consequently, we disagree with OJP’s assertions that it has successfully administered the Coverdell Program.
Statutory Requirements. OJP next contends that it has complied with the Justice for All Act’s requirements because it collected the certifications called for by the Act. OJP raises two questions related to this point. According to OJP, “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 certificates from applicants.” The second question OJP poses is “…whether the statutory requirement itself is effective to accomplish what appear to be its intended purposes.”
OIG Analysis. Regarding the first “question,” the OIG has not and does not question whether OJP has complied with the minimum statutory requirement to collect certification forms. We acknowledge that OJP has complied with the terms of the statute by collecting these certifications. However, we disagree that OJP has fully and effectively discharged its duties to effectively manage the program merely by collecting the forms or that OJP’s responsibility is properly limited to strict compliance with the bare minimum statutory requirement.
Because the OIG believes that the certification must have meaning beyond the mere collection of a signed statement, we obtained the FY 2006 certifications from OJP in order to review whether the grantees actually certified government entities that were capable of conducting independent investigations. As we detailed in this report, many were not. We find OJP’s often-stated position that it has fulfilled its duty to administer the Coverdell Program’s external investigation certification requirement merely by collecting certification forms is troubling.
Regarding the second “question,” we believe it is inappropriate for OJP to shift responsibility for the problems our review identified with its administration of the Coverdell Program to Congress. In its discussion of this second “question,” OJP asserts that because Congress did not give specific direction beyond requiring the collection of the certifications:
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.
We could not disagree more. The language Congress included in the Act makes clear that federal funding to improve forensic laboratories was to be granted to applicants that have in place established processes to conduct independent investigations into allegations of serious wrongdoing. This is the clear policy objective of the certification requirement. As the responsible federal agency, OJP must develop the mechanisms to effectively implement the legislation and to enforce the law in a meaningful way. Commensurately, we believe that the statutory directive to collect certifications must have meaning beyond the mere act of collecting signed certifications.
Referrals of allegations. OJP also provides comments regarding the lack of any specific statutory directive that grantees actually refer allegations of wrongdoing for investigation by the certified entity. In its discussion of the quality of the statute, OJP states that “while OJP certainly agrees that such referrals are consonant with the external investigation certification requirement, the statute itself imposes no requirement for referrals.” In the next paragraph of its response, OJP states it is not surprised that the OIG identified cases in which forensic laboratories conducted their own investigations of wrongdoing because “[t]he 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….”
OIG Analysis. In our view, OJP’s position again demonstrates an inadequate appreciation of its responsibilities. Because the statute does not explicitly state that OJP should provide guidance regarding referrals, OJP apparently does not believe it has any obligation to do so. Yet, as the administrator of the grant program OJP is responsible for providing applicants with appropriate guidance on a variety of issues, which we believe includes informing grantees that – consistent with their certifications – allegations of serious negligence or misconduct substantially affecting the integrity of forensic results should be referred for review or investigation to the government entities they have identified. We believe that without such guidance the certification has little meaning and Congress’ clear intent in requiring grantees to identify a government entity to independently investigate allegations is thwarted.
Certifications from individuals not in the applicant agency. OJP next addresses the OIG’s observation that 38 grantees submitted certifications that were signed by individuals who did not appear to represent the applicant agency. OJP states that it reviewed a list of the 38 questionable certifications, and that it appeared 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.” [Emphasis in original] OJP acknowledges that some grantees submitted certifications from forensic laboratories instead of from the agency applying for the grant, and states that in the future such certifications will not be accepted in lieu of certifications from the grantees. However, OJP adds that, while these certifications were “insufficient under the law, [the certifications] honored much of its apparent intent.”
OIG Analysis. As stated in the external investigation certification template issued by OJP, the certifications are required to be signed by an individual authorized to make the certification on behalf of the applicant agency. The OIG agrees that certifications signed by individuals who are in a position of authority to sign on behalf of an applicant agency, even if the individuals are not from the applicant agency, are acceptable. However, the 38 certifications we questioned were signed by individuals who did not appear to be from the applicant agency and who were not clearly in a position of authority over the applicant agency. For example, OJP’s response confirms that some of the certifications were from sub-grantees and were therefore not sufficient. Clearly, sub-grantees have no authority over the grantee. We also believe that OJP’s decision not to approve applications that contain certifications only from sub-grantees recognizes this point and is a step in the right direction.
Responsibility for addressing potentially false certifications. OJP next comments that “language in the OIG draft report suggests that the OIG may have concerns as to whether certain certifications submitted in FY 2006 were false.” OJP further states that false certifications are a matter of “grave concern” to it. OJP states that it is not aware of which applicants or officials may be involved, but if it is made aware of potentially false certifications it will ask the OIG to investigate the matter.
OIG Analysis. OJP mischaracterizes the OIG’s concern. The OIG’s concern is that the problems we identified in the FY 2005 and FY 2006 Coverdell Program provide strong indications that OJP’s administration of the external investigation certification requirement is inadequate to prevent and identify improper or insufficient certifications. For example, the guidance provided by OJP did not require that applicants confirm to OJP that they had identified entities capable of conducting independent external investigations of wrongdoing. Further, OJP did not effectively review the certifications to ensure that they were accurately completed or that on their face they did not indicate deficiencies. We remain concerned that OJP’s failure to improve its administration leaves open the potential for it to accept invalid certifications.
In addition, the OIG is concerned that the OJP response attempts to shift the responsibility for assuring the validity of grantees’ certifications to the OIG, stating that if OJP “should become aware of specific facts concerning false certifications, the OIG will be asked to conduct an appropriate investigation into the matter.” While the OIG has the authority to review all activities of Department components or grantees, our primary focus is on improving the management of the Department. OJP has the primary responsibility for administering grant programs effectively to ensure the grantees comply with grant requirements. It is not the OIG’s responsibility to review the certifications on an ongoing basis – it is OJP’s responsibility. Yet, because of OJP’s resistance to acting on the problems uncovered in our December 2005 report and our resulting recommendations, the OIG believed it necessary to conduct this follow-up review. And, notwithstanding that we again found strong indications that OJP’s processes are often inadequate to ensure independent external investigations into allegations of serious wrongdoing in forensic laboratories, OJP’s response indicates that it remains reluctant to fulfill its responsibilities to administer the statute in a meaningful way.
OJP’s Additional Clarifications
In addition to the general comments discussed above, OJP provided several “Additional Clarifications” regarding certain statements in the OIG report. Each of OJP’s clarifications is discussed below.
OIG legal assessment. OJP states that, in discussing the December 2005 report, it is appropriate to note that the OIG’s General Counsel agreed with OJP 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).”
OIG Analysis. OJP’s representation of the OIG General Counsel’s statement is correct, but again misses the point. As we described earlier, although our report acknowledges that OJP has complied with the minimum terms of the statute requirement by collecting the certifications from applicants, we believe that this is an overly narrow reading of OJP’s responsibility as the administrator of the Coverdell Program. Rather than focus on whether it has complied with the minimum required, OJP should be concerned with taking the steps necessary to ensure that the certifications it collects are accurate and meaningful.
Meaning of “certified entities.” OJP states that it is important to clarify that the FY 2006 certification form did not request the name of the government entity. OJP also states that the OIG uses the terms “certified entities” and “entities certified” not to refer to entities identified in the certifications, but to entities identified after the fact to the OIG by individuals who may or may not have signed the certifications submitted to OJP.
OIG Analysis. The OIG report is clear in stating that the names of the entities were not included on the FY 2006 Coverdell Program certifications. Indeed, a primary purpose of this review was to identify the government agencies that the certifying officials had in mind when they signed the certifications because OJP failed to obtain that information in the first instance. The majority of individuals we contacted were the individuals who signed the certifications.
Appropriate processes. OJP states that, with respect to 43 entities the OIG found lacked appropriate processes, “the certification basis of the Coverdell statute…is [that] the applicant State or unit of local government…must determine if the process in place is appropriate.”
OIG Analysis. The OIG agrees that the applicants have the primary responsibility for determining that the entities they certify have in place appropriate processes to investigate allegations of serious wrongdoing in forensic laboratories. Yet, when we contacted the entities identified to us by the certifying officials, many told us that they did not have appropriate processes for conducting the investigations called for in the Coverdell Program. In other cases, we found that the forensic laboratory exercised control over the investigation – such as by granting the authority for the entity to conduct investigations on a case-by-case basis – that effectively undermined the independence of the investigative process. OJP’s statement again appears to ignore its responsibilities as the grant administrator. We concluded that OJP’s administration must be improved to ensure that the applicants fulfill their responsibility to ensure appropriate processes are in place.
Certifying officials notice to government entities. Regarding the OIG’s reporting that certifying officials often did not discuss or notify the entities about the external investigation certification, OJP states that the statute does not require that certifying officials discuss the certification with a government entity representative.
OIG Analysis. In assessing the certifications submitted by applicants, the OIG contacted the entities that the certifying officials told us they had in mind when they signed the certifications. In many cases, the entities were unaware that they had been identified as having a process in place to conduct independent investigations of wrongdoing in forensic laboratories. However, some of these entities also told us that they did not have the capability or authority to conduct such investigations. While it may not be explicitly required in the statute, OJP’s encouragement of communication between the applicants and the entities they certify would help ensure that applicants certify government entities that have the authority, a process in place, and the capability and resources to conduct independent external investigations of the forensic laboratories that will receive Coverdell Program funds. We do not believe that OJP should wait – or require the Congress to direct them in a statute – to take appropriate steps to administer the program.
FY 2006 grant application instructions. OJP notes that in its FY 2006 solicitation it not only required applicants to submit a certification using the template, but also advised the applicants that they were “expected to review the requirement of [the] certification carefully before determining whether the certification properly can be made.” Further, OJP states, the applicants were notified that the certification must be executed by an official familiar with the certification requirements and authorized to make certifications on behalf of the applicant agency.
OIG Analysis. The OIG does not dispute that the cited language was included in the Coverdell Program announcement. Our concern remains, however, that OJP’s overall administration of the Coverdell Program external investigation certification requirement was insufficient to ensure that applicants actually identified entities capable of conducting independent external investigations of wrongdoing in forensic laboratories.
OJP RESPONSE TO OIG RECOMMENDATIONS
Recommendation 1. Revise the certification template to require that applicants name the government entities and confirm that the government entities have:
- the authority,
- the independence,
- a process in place that excludes laboratory management, and
- the resources
to conduct independent external investigations into allegations of serious negligence or misconduct by the forensic laboratories that will receive Coverdell Program funds.
Status. Unresolved – open
Summary of the OJP Response. OJP did not concur with the OIG’s recommendation to revise the certification form to include additional language. OJP stated that it will continue to require that applicants name the government entity or entities to prior to receiving funds and will modify the certification form to include two new statements. However, OJP does not agree that the statements the OIG recommended are necessary, and states that it [OJP] “is reluctant to impose eligibility requirements other than those contained in the statute.” OJP concludes that “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.”
OIG Analysis. The OIG does not accept OJP’s reasoning. The additional language recommended by the OIG would not establish any new eligibility requirements for the Coverdell Program. Any entity that meets the certification requirement must have the authority, independence, processes, and resources to conduct investigations into allegations of serious wrongdoing at forensic laboratories. The modifications we propose would only have the applicants specifically confirm to OJP that the entities they certify meet these qualifications. Such a certification is needed because, as we have described throughout this report, the OIG identified repeated instances in which OJP’s administration of the certification requirement was ineffective to ensure that grantees certified appropriate entities. Finally, we disagree with OJP’s assertion that Congress must dictate exactly what the certification must contain or specifically direct OJP how to effectively administer the Coverdell Program.
To resolve this recommendation, we request that OJP reconsider its decision not to add the needed language to the certification template and inform the OIG of its determination and proposed corrective action by March 1, 2008.
Recommendation 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.
Status. Resolved – open
Summary of the OJP Response. OJP concurred with the recommendation and states that it will provide applicants with guidance that encourages referrals of allegations of serious negligence or misconduct to government entities for independent external investigation.
OIG Analysis. The actions planned by OJP are responsive to our recommendation. To close the recommendation, by May 15, 2008, please provide the OIG with a copy of the guidance for FY 2008 Coverdell Program applicants.
Recommendation 3. Revise and document the Coverdell Program application review process so that only applicants that submit complete external investigation certifications are awarded grants.
Status. Resolved – open
Summary of the OJP Response. OJP concurred with the recommendation and agreed to require applicants to provide a complete external investigation certification prior to receiving funds. In addition OJP agreed to 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.
OIG Analysis. The actions planned by OJP are responsive to our recommendation. To close the recommendation, by May 15, 2008, please provide the OIG with a copy of the written program management guidelines for the Coverdell Program.