Glenn Fine
Inspector General
U.S. Department of Justice
Washington, DC 20530

Re:	Response to the Office of the Inspector General’s Report on Audit of Legislative and Public Affairs Expenses at the Department of Justice

Dear Mr. Fine:

We appreciate the opportunity to review and comment upon your draft audit report entitled “Audit of Legislative and Public Affairs Expenses in the Department of Justice.” This response is a consolidation of comments from all components providing them.

Comments on OIG Findings

As your report indicates, JMD differs in some respects with OIG’s calculations of the staffing levels for the Department’s Office of Legislative Affairs (OLA) and the Office of Public Affairs (PAO). Despite these differences, the audit concludes that PAO operated within its position and FTE (full-time equivalent workyear) ceilings, and that OLA operated within its position ceiling. However, 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.

As your report indicates, the appropriations language for the account “General Administration, Salaries and Expenses” in fiscal year 2006 stated, in relevant part, as follows:

Provided further, That not to exceed 26 permanent positions, 21 full‑time equivalent workyears and $3,480,000 shall be expended for the Office of Legislative Affairs: Provided further, That not to exceed 17 permanent positions, 22 full‑time equivalent workyears and $2,764,000 shall be expended for the Office of Public Affairs: Provided further, That the Offices of Legislative Affairs and Public Affairs may utilize, on a non‑reimbursable basis details of career employees within the ceilings provided for the Office of Legislative Affairs and the Office of Public Affairs: . . . .

Department of Justice Appropriations Act, 2006, Public Law 109-108, Title I (emphasis added). These personnel and monetary caps on OLA and PAO were continued into fiscal year 2007 by Public Law 110-5.

The OIG report notes that the OLA and OPA ceiling allocations “were unusual,” indicating that OLA had an allocation of 26 positions but only 21 FTE. Nonetheless, 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 OPA budget ceilings. From the JMD standpoint, such an approach is quite unorthodox; our rationale is explained below.

When applying the proviso’s permanent position and FTE ceilings, JMD, OLA and PAO adhered to standard budget principles and the dictates of the Office of Management and Budget Circular A-11, consistent with the limitations of the statute. For example, consistent with OMB Circular A-11 (§ 85) and standard budget principles, JMD considers the office that hired an individual to be the office that reports that individual’s “FTE.” Further, consistent with budget practices, to the extent that the hiring office hires an employee in a “permanent duty” status, that office will count that position as one of its “permanent positions” (assuming the hiring office is not being reimbursed for the position); typically, this rule would apply even if that person goes on detail to another office. It is here, however, where JMD adjusted the application of standard budgeting principles in light of the language of the last proviso above. The proviso states that OLA and PAO “may utilize, on a non‑reimbursable basis details of career employees within the ceilings provided,” which we understand was an effort to place limits on the number of employees, or positions, that could be in these offices at any given time. Therefore, to give effect to the proviso’s limitations, JMD considered non-reimbursable details to add to the number of positions within these offices, and counted them against the permanent position ceilings. With minor differences, JMD and OIG were in essential agreement on calculating OLA positions and each determined OLA was within the proviso’s position cap.

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.

We understand OIG’s interpretation of the FTE ceiling differs from ours. However, we believe it would be appropriate to have the conclusion of the final report make clearer reference to the fact that JMD and OIG have differing interpretations of the appropriations language, and JMD applied standard budget principles to a proviso for which there is more than one possible interpretation.

Thank you for the opportunity to clarify JMD’s perspective on these aforementioned issues. Our response to the report’s recommendations follows.

Recommendations

OIG Recommendation:  Ensure that OLA complies with any future staffing restrictions mandated by appropriations law.

Response:  While JMD respectfully differs with the conclusion surrounding OLA’s FTE consumption, we are taking steps to respond to this recommendation. Beginning in July, JMD’s Consolidated Executive Office (CEO) will track OLA and PAO staffing and FTE, including all details as appropriate, and ensure such levels are within approved operating plans and any appropriations restrictions. We will provide the OIG with the data complied for that tracking, through September 2008.

OIG Recommendation:  Update the OPM series classifications for a staff member [at ATF] who no longer performs public affairs functions.

Response:  The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) concurs with the intent of the recommendation insofar as recognizing that the staff member in question has not been working within the parameters of the position description of a Public Affairs Specialist (series 1035).

During the period covered by this audit, fiscal year 2007, ATF’s Liaison Division had just been established, with skeleton staff. Although the staff member in question was assigned to a position in the 1035 series, understaffing in the Liaison Division resulted in this individual performing work properly classified in the 0343 series. ATF has subsequently hired an additional staff member for the liaison work. Accordingly, the identified staff member will return to public affairs responsibilities, consistent with the 1035 series classification, by the end of this fiscal year.

Thank you for the opportunity to provide comments to the Report.

If you would like more information, contact Richard Theis, Audit Liaison Group, at (202) 514‑0469.

Sincerely,


Lee J. Lofthus
Assistant Attorney General
  for Administration

cc:	Mr. David M. Sheeren Regional Audit Manager Denver Regional Audit Office