Few fixes available for problem IGs

Instead, Zinser has been accused for nearly two decades of protecting agency bosses and retaliating against his own underlings.

It started in the 1990s at the Department of Transportation, where Zinser was accused of retaliating against an investigator who refused to cover up politically charged information.

It continues at Commerce, where Zinser was rebuked by the U.S. Office of Special Counsel and two congressional committees for retaliating against employees and failing to monitor the agency effectively.

Yet despite bipartisan demands for answers and accountability, there seems to be little that anybody other than the president of the United States can do about it. The president hires IGs for Cabinet-level agencies, and only the president can fire them.

Watchdogs, lapdogs and attack dogs

A four-part series by the Washington Examiner examining the state of the inspectors general.

Part One: IGs form front line of war on waste and fraud, but weak links remain

Part Two: Temporary IGs subject to agency manipulators seeking to cover up wrongdoing

Part Three: Bad things happen to whistleblowers when watchdogs become attack dogs

Today: Few fixes available for problem IGs

Click here to see a summary of the series and find more resources.

The law is written that way to ensure IGs are immune from political pressure exerted by agency bosses who may not want their secrets exposed. But that protection also extends to weak IGs.

“In our effort to make sure that IGs can be independent from political pressure, Congress may have gone too far in making it hard to remove an IG,” said Rep. Eddie Bernice Johnson, D-Texas, ranking Democrat on the Science, Space and Technology Committee that has leveled scathing, bipartisan criticism against Zinser for almost two years.

“It’s hard to remove an IG,” Johnson said. “The Congress can investigate IGs for misconduct, but generally if an IG is a bad IG, they lack the integrity to quit even when caught doing something wrong.”

There are 72 inspectors general throughout the federal government. Permanent IGs at major agencies are appointed by the president and confirmed by the Senate.

On paper, they answer jointly to the president and Congress. In reality, since only the president can fire them, he is the only one who can force them to do their jobs or quit, according to critics in Congress and watchdog groups outside of government.

What separates good IGs from bad ones is their personal integrity and willingness to investigate the agencies they police aggressively and without regard for who or what is exposed.

“IGs have to exercise their independence from political control,” said Sen. Charles Grassley, R-Iowa, a longtime critic of weak IGs. “You get down to the basics of, are they working as an end to themselves or are they working for the American people?”

Before the president even makes an appointment, the prospective IG normally is vetted by top agency management, often including the secretary, who may want to keep bad news from being exposed, said Michael Smallberg of the Project on Government Oversight, a nonpartisan watchdog group.

“If you can keep more serious findings at bay or pressure the IG to bury some of the more serious findings, then you can protect your agency from embarrassing stories,” Smallberg said.

Strong IGs are willing to expose wrongdoing regardless of how high it goes, said Chris Farrell, director of investigations and research at Judicial Watch, another nonprofit watchdog group.

But too many IGs adopt a go-along-to-get-along attitude, keeping their offices busy with investigations of low-level employees while ignoring more damaging misconduct in the upper echelons, he said.

When that happens, there are few mechanisms to pressure them to do the right thing.

“The operating principle is the IG is going to have the moral courage to do the right thing, even when the institution or the people in power don’t want to,” Farrell said.

“They are supposed to have the guts to do that, even if it’s unpleasant or awkward or embarrassing. When they flip on that, there is a corrosive effect on the agency and the Constitution.”

What happened at Commerce illustrates the difficulty of holding problematic inspectors general accountable.

Zinser was appointed in 2007 after his predecessor, Johnnie Frazier, retired amid accusations of mismanagement and retaliation against his own employees.

Problems with Zinser began early, according to a series of letters sent since February 2013 by a bipartisan group of lawmakers on the House science committee.

Many of the letters are co-signed by Johnson and Rep. Lamar Smith, R-Texas, the committee chairman, as well as the chairman and ranking Democrat on the oversight subcommittee. Smith declined requests for an interview with the Washington Examiner.

Similar complaints have been raised by the House Energy and Commerce Committee.

Before coming to Commerce, Zinser was deputy assistant inspector general at the Department of Transportation, where he spiked an investigation into spending on Denver International Airport when then-Secretary Federico Pena was mayor.

Zinser retaliated when the investigator balked, according to an investigation by the Office of Special Counsel, which is responsible for protecting executive branch whistleblowers.

Zinser failed to disclose OSC’s findings during his Senate confirmation hearing for the Commerce job, according to the science committee.

Beginning in 2010, Zinser’s top deputies at Commerce — including his lawyer and the head of his whistleblower protection office — improperly coerced four departing employees into signing nondisclosure agreements by threatening them with poor performance reviews if they refused, according to an investigation by OSC released in September 2013.

OSC could not prove Zinser ordered the tactic, but he did try to protect his two deputies from serious punishment, ordering them to receive “performance counseling” instead.

That tepid response enraged members of the science committee, who said in a July 2014 letter to Zinser that his response “suggests that misconduct will not just be ignored by you, it will be defended with vigor.”

Zinser “built an official record that casts doubt on your reliability, veracity, trustworthiness, and ethical conduct,” committee members wrote. “When an IG cannot effectively serve as a watchdog due to their own illegal conduct or lack of ethical grounding, that IG cannot maintain the trust and confidence of the Congress, agency employees, or the public.”

The two deputies were placed on paid administrative leave in August 2014. They have since left the office, according to a Commerce IG spokesman who declined to provide details about their departure.

Six commerce IG employees filed retaliation complaints with OSC in 2012 and 2013, an unusually high number given the size of the office, according to an Aug. 26, 2014, letter from Democrats on the science committee, who said they are still getting complaints from Zinser’s staff.

Retaliation is not the only gripe. Last year, science committee Democrats accused Zinser of dropping an investigation into the potentially illegal misspending of millions of dollars by the National Weather Service.

Rather than conduct his own investigation, Zinser turned the allegations over to Commerce executives, “essentially allowing the agency to investigate itself,” Johnson and other Democrats charged. Zinser declined to be interviewed for this story.

In letters to the science committee, he gave his assurance “there is no effort on my part, or by this OIG management, to identify or retaliate against whistleblowers.”

Zinser said that in April he requested an independent review of his office by the integrity committee of the Council of Inspectors General for Integrity and Efficiency, a coalition of inspectors general set up to police their own.

CIGIE declined. But even if it hadn’t, Zinser had little to fear from CIGIE, which has no power to discipline an errant inspector general.

The group has been criticized in recent years for the slow pace of its investigations, bland reports, strict secrecy and lack of meaningful recommendations.

“CIGIE is uniquely averse to investigating its own folks,” said Dan Epstein, executive director of the nonprofit group Cause of Action. “CIGIE is just a coalition of IGs and is unwilling to investigate other IGs.”

At least two complaints seeking an investigation by CIGIE were filed against Charles Edwards, the former acting inspector general of the Department of Homeland Security, according to documents obtained last year by Cause of Action. CIGIE declined to pursue them.

Edwards resigned as acting IG in December 2013, days before he was to face a grilling by the Senate Homeland Security and Governmental Affairs Committee over charges that he covered up agency misconduct and retaliated against whistleblowers in his own office.

More recently, CIGIE spent almost two years investigating the IG at the National Archives and Records Administration, Paul Brachfeld, who was accused of making insensitive comments about women and minorities. Brachfield was on paid administrative leave during the investigation, drawing his salary of almost $190,000 annually.

He retired in August, after CIGIE concluded his comments constituted administrative misconduct.

The slow pace of the archives investigation prompted Grassley to ask CIGIE to provide details on the number of complaints referred to its integrity committee, how many resulted in investigations, and how long it takes to complete them.

Grassley has yet to receive the information.

While there are ample critics of weak inspectors general, there are few suggestions for balancing IG independence with accountability.

The most cited reform is stricter time limits for acting inspectors general, who serve as temporary caretakers until a permanent IG is appointed and confirmed.

Interim IGs are not supposed to serve for more than 210 days. But there are work-arounds, such as changing job titles, so some agencies have gone years without a permanent IG.

POGO recommends requiring the authors of IG reports to sign off on final findings and recommendations to lessen the chance their conclusions will be watered down to protect agency managers.

POGO also wants a requirement that IGs can only be fired for cause to increase their independence. But Smallberg acknowledged that could make it even harder to fire a weak inspector general.

Cutting agency budgets or blocking the confirmation of presidential appointees also have been mentioned as tools Congress can use to force the president to deal with a problematic inspector general.

Epstein said slashing the budget of a weak inspector general can pressure the president to find a replacement, but added he is not aware of that ever happening.

“There’s obviously a political cost of doing that,” he said. “If you withhold funding from an IG, it means the agency is not going to be audited or investigated.”

Ultimately, the most effective tool to drive out weak inspectors general is publicly shaming them, Grassley said.

“I found that by bringing the right information public and raising enough Cain, I got IGs fired,” Grassley said. “If every congressman would take a look at IGs and support them or get rid of them accordingly by going public, I think it would make a big difference.”