In response to our audit report, JMD and ATF concurred with our recommendations and discussed the actions they plan to take to address our findings. While JMD agreed with our recommendation that the Department’s Office of Legislative Affairs (OLA) should comply with any future staffing restrictions mandated by appropriations law, it disagreed with our calculation of OLA’s FTE usage in 2007. As a result, we are providing the following comments on JMD’s response to the draft report.
In Appendix IX, JMD provided the following general statements in response to the report:
... the report also concludes that OLA exceeded its FTE ceiling by 2.8. JMD respectfully disagrees with OIG’s conclusion as it is based on an interpretation of an appropriations limitation that is inconsistent with long-established budget principles.
... OIG reads the ceiling proviso to require that non‑reimbursable detailees assigned to OLA during the year should count against both OLA’s position and FTE caps in a manner that essentially equates “FTE” with “positions,” effectively limiting OLA to 21 positions for the year. While we recognize the OIG’s reading of the ceiling proviso to be one possible interpretation, it is not the interpretation JMD employed as it managed the caps during the year. In interpreting appropriations language, JMD applies a well-defined body of law, regulation and budget principles. We understand that OIG believes that ordinary budget concepts were not intended to be applied in the case of the OLA and PAO budget ceilings. From the JMD standpoint, such an approach is quite unorthodox; our rationale is explained below.
In calculating whether OLA’s FTE stayed “within the ceilings provided” per the proviso, JMD, differing from OIG, counted detailed FTE consistent with how non-reimbursed detailed FTE are always counted. Since standard budget principles and the dictates of the OMB Circular A-11 require FTEs to be counted against the hiring component, JMD did not apply non‑reimbursable detailees against OLA's FTE ceiling. JMD gave effect to the appropriations proviso (that we reasonably understood to relate to limiting the number of people utilized by OLA) by counting the detailees against OLA’s permanent position ceiling, but we counted OLA's FTEs as we normally would under A-11. We did not view this as contrary to the appropriation language, and, in fact, believed it was the only manner in which both the 26 position and 21 FTE caps could be given meaning (unless OLA was expected to employ a host of part-time employees during the year). When the non-reimbursable detailees are counted in this way (as positions but not FTEs), we note that OLA stayed under its permanent position and FTE ceilings.
The OIG agrees with JMD that under OMB Circular A-11 non‑reimbursable detailed staff would not be included in calculating the receiving component’s FTE ceiling. We noted in the report that, “In calculating OLA’s FY 2007 FTEs, JMD followed OMB Circular A-11 and did not include the 11 non‑reimbursable detailed staff.” However, we disagree with JMD’s interpretation of the appropriations language. As we noted in the report, “ We believe the appropriations language stating that OLA may utilize, on a non‑reimbursable basis, detailed staff ‘within the ceilings provided,’ requires that non‑reimbursable detailed staff be included in both the permanent positions and FTE ceilings, not just the permanent positions ceiling.” Congress provided distinct ceilings for both FTEs and permanent positions in the 2007 appropriations language. Contrary to JMD's interpretation, there is no reason to believe that the language applies to one ceiling but not the other. As a result, we included all staff performing legislative affairs functions for OLA in our calculations of both permanent positions and FTEs.
JMD acknowledges that it altered standard federal budgeting practices to count non-reimbursable detailed staff toward OLA’s permanent positions ceiling, as we note in our report, “ in a good faith effort to meet the intent of the appropriations language and contrary to standard budgeting practices, JMD included 9 of the 11 non ‑reimbursable staff detailed to OLA throughout FY 2007 in its calculations of OLA’s permanent positions.” However, we believe the appropriations language required JMD to do the same with regard to the FTE ceiling. As JMD concedes, although the FTE ceiling was lower than the permanent positions ceiling, it would have been possible for OLA to operate within both ceilings by hiring part-time staff.
In Appendix IX, JMD provided a consolidated response to the OIG recommendations, which we analyze in turn:
Resolved (JMD). This recommendation can be closed when we receive documentation supporting that JMD has implemented a tracking system to ensure that OLA complies with any future staffing restrictions.
Resolved (ATF). This recommendation can be closed when we receive documentation supporting that ATF reassigned the staff member to responsibilities consistent with the GS-1035 series classification.