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an annual basis, the intent is clearly not to micromanage on a day-to-day or month-to-month

basis how the IG pursues his independent mission.

C.

The Inspector General's “Dual Reporting" Role Does Not Impose Limitations On the Board's Authority to Conduct Performance Evaluations of the Inspector General

In its Memorandum, the OIG claims that "it is not reasonable" for the Board to evaluate the IG without consulting Congress, given the IG's "dual reporting requirement.” (Coogan Mem. at 5.) The Memorandum fails to explain how the "dual reporting" processes set forth in the IGA would in any way prohibit the Board from conducting annual performance evaluations of the IG. A careful examination of the provisions of the IGA cited in the Coogan memorandum reveals that Congress is simply the recipient of reports that have been prepared by the IG. See 5 U.S.C. app. 3 §§ 2(3); 4(a)(5); 5. The Memorandum does not elucidate how the procedure by which the IG prepares and transmits (through the head of the agency) reports for Congress to review somehow creates a "reporting relationship" that confers onto Congress a primary supervisory role over the IG's activities and performance. Contrary to the OIG's arguments (Coogan Mem. at 5), the fact that the IG engages in "dual reporting" to both the Board and Congress does not undermine the Board's Congressionally-mandated authority to exercise "general supervision" over the IG.'

II.

Practical Considerations Support Conducting Annual Performance Evaluations of the Inspector General

As previously discussed, the IGA effectively provides that the "IG shall report to and be under the general supervision" of the Board. The annual performance review represents the Board's effort to give practical meaning to fulfillment of its statutory duty. Presumably,

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If anything (as discussed at p. 17) to conclude that Congress could inject such a layer of control over the Board's supervision of its IG likely would raise separation-of-power issues.

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Congress entrusted the Board with this general supervisory authority with the understanding that,

on occasion, the IG may be called upon to conduct investigations or issue reports that may question decisions of the LSC Board, or where the Board may be a direct party in interest. Nevertheless, Congress clearly expressed its will that the IG should be subject to the general supervisory authority of the Board. Accordingly, the Board is not free to ignore or fail to act affirmatively to carry out its statutory duty in light of the Congress's explicit allocation of supervisory authority to the Board. The Board's annual performance evaluation process for the IG effectuates these statutory objectives.

The Coogan memorandum discusses a number of grounds on which the OIG seeks to object to the Board's annual performance evaluation process as a practical matter. As discussed below, however, none of the OIG's arguments provides a valid basis for repudiating the authority for the Board's process.

A.

Existing Mechanisms for "Review” and “Oversight" of the Inspector General Are Not Sufficient as a Substitute for Annual Performance Evaluations by the Board

The OIG contends that, because the IG's "general performance and conduct [are] already subject to many oversight mechanisms... [t]his relieves the agency head of any responsibility for evaluating their Inspector General's performance." (Coogan Mem. at 7-8.) The OIG's argument on this point is unsupported by any case law and is misguided. The question is not, as the OIG suggests, whether there happen to be any other "mechanisms... available to the Board" for reviewing the IG's performance that may arguably seem "far more preferable than the Board's current evaluation process." (Coogan Mem. at 6.) Rather, the key issue here is whether the Board has the legal authority to conduct annual performance evaluations of the IG; and, as explained above (see supra at pp. 3-6), the IGA clearly provides the Board with this authority.

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The OIG's contentions on this point about existing "oversight mechanisms" are problematic for other reasons as well. For instance, the Memorandum claims that the IG is "already subject to a substantial array of review mechanisms that militate against the need for a review by the agency head." (Coogan Mem. at 7.) The Memorandum fails, however, to provide any relevant specifics relating to the alleged "substantial array of review mechanisms." It vaguely states, for instance, that "Inspector General audits are subject to a strict peer review process," and that "Inspector General criminal investigations are subject to prosecutorial review." (Coogan Mem. at 7.) Yet, the Memorandum provides no citations to any relevant statutory provisions or regulations that describe such review processes. Likewise, the Memorandum does not explain how the previous two statements provide satisfactory corroboration for the OIG's conclusion that the IG's "performance in the two most significant areas of responsibility – audits and investigations – are already ‘evaluated' by independent, objective and expert outsiders." (Coogan Mem. at 7.) The Memorandum simply fails to identify who those purported "independent, objective, and expert outsiders" might be, the process by which those "expert outsiders" scrutinize the IG's audits and investigations, and the frequency of their review activities.

Similarly, the Coogan memorandum suggests that "oversight" of the IG takes place as a result of the IG's statutorily mandated, semi-annual reporting to the head of its agency and to Congress. (Coogan Mem. at 7.) This argument is clearly misplaced since, as a matter of statutory prescription, the focus of the semi-annual reports is IG oversight of the agency's programmatic activities, not the agency's oversight of the IG. 5 U.S.C. app. 3 § 5. The agency's

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comments are typically directed at providing updates on corrective action by the agency in

In the Memorandum, the OIG also makes a number of arguably misleading

statements regarding "other avenues" by which the head of an agency and Congress can supposedly communicate their "concerns about Inspector General performance." (Coogan Mem. at 7.) The Memorandum states, for example, that Congress "can request the Government Accountability Office" (GAO) to "conduct a review of OIG operations." (Coogan Mem. at 7.) GAO was originally established to investigate "all matters related to the receipt, disbursement, and use of public funds," and to make reports to the President and Congress with recommendations to improve "economy or efficiency in public expenditures.” Budget and Accounting Act of 1921 (Pub. Law No. 67-13, 42 Stat. 20, 27 § 312 (a) (1921)). GAO continues to support Congressional oversight of executive branch agencies, such as by evaluating how well government policies and programs are working; auditing agency operations to determine whether federal funds are being spent efficiently and appropriately; investigating allegations of illegal and improper activities; and issuing legal decisions and opinions. It is true that GAO may respond to Congressional requests for information. However, this does not mean that GAO would be specifically reviewing and monitoring the operations of the LSC OIG on a regular basis.

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At one point, the OIG lists four examples of instances when Congress purportedly "provided feedback about the work being performed by [the IG] and the LSC OIG." (Coogan Mem. at 14.) The examples cited in the Memorandum do not establish this proposition. In one such instance, the House Appropriations Committee on Science, State, Justice, Commerce, and Related Agencies merely approved a funding bill that happened to include an increase in the budget for the OIG. It is too tenuous to conclude - based on this budget decision - that Congress had thus somehow provided the equivalent of a formal, annual performance evaluation or meaningful oversight of the IG's work.

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Similarly, in this Memorandum, the OIG also implies that "anyone, including the

agency head," can contact the Integrity Committee of the President's Council on Integrity and Efficiency ("PCIE") to "raise concerns and request a review." The Integrity Council was established to provide an "independent investigative mechanism" for addressing "certain administrative allegations" against IGs and OIG staff. Executive Order 12993 preamble. Language in the Executive Order that establishes the Integrity Committee indicates that the entity was intended specifically to investigate "allegations of wrongdoing" by IGs and OIG staff. Executive Order 12993 § 1(a). As such, it appears that reviews by the Integrity Committee would largely be focused on addressing "certain" types of allegations of wrongdoing, which is not indicative of an intent to appraise the overall performance of the LSC OIG on an ongoing basis.

Likewise, the Memorandum states that the Office of Management and Budget ("OMB"), "through the auspices" of the PCIE and the Executive Council on Integrity and Efficiency ("ECIE") "can be engaged by agency heads with concerns about their Inspector General's performance." (Coogan Mem. at 7.) There is no explanation here as to what actions the OMB is authorized to undertake in response to such allegations, nor does the Memorandum cite actual examples demonstrating the effectiveness of this particular "avenue" for IG oversight. Moreover, there is no indication of any intent that the OMB would displace the Board's statutorily granted general supervisory authority over the IG.9

9 The OIG cites the GAO 1999 report on the dispute between the Chairman and IG of the Tennessee Valley Authority ("TVA”) to claim (1) that the Board may not "direct its own review" of the IG's conduct or performance when "independent, outside authorities are responsible for conducting such reviews;" and (2) that the 1988 amendments to the IGA provide that only federal audit entities, such as the GAO and other OIGS - not the agency or agency heads - are permitted to perform a review to determine whether an IG has internal quality controls and is (continued...)