Review of the Office of Justice Programsí Forensic Science Improvement Grant Program

Evaluation and Inspections Report I-2006-002
December 2005
Office of the Inspector General


Appendix II: Office of Justice Programsí Response



  U.S. Department of Justice

Office of Justice Programs
Office of the Assistant Attorney General
Washington, D.C. 20531

NOV 04 2005


MEMORANDUM TO: Paul A. Price
Assistant Inspector General for Evaluation and Inspections
 
FROM: Regina B. Schofield
Assistant Attorney General
 
SUBJECT: Draft Audit Report on Review of Office of Justice Programsí
Forensic Science Improvement Grant Program,
Assignment Number A-2005-010
 

This memorandum responds to the Office of the Inspector General’s (OIG’s) draft audit report issued on October 13, 2005, regarding the review of the Office of Justice Programs’ (OJP) Paul Coverdell Forensic Science Improvement Grant Program. The OIG evaluated the Fiscal Year (FY) 2005 National Institute of Justice (NIJ) Coverdell Grant Program Announcement and application review process. In particular, the OIG focused on the new “external investigation certification” requirement established by section 311 (b)(3) of the Justice for All Act of 2004, which amended section 2802 of the Omnibus Crime Control and Safe Streets Act of 1968 to add a requirement that States or units of local government requesting Coverdell grants submit a certification that:

...a government entity exists and an appropriate process is in place to conduct independent external investigations into allegations of serious negligence or misconduct substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system, medical examiner’s office, coroner’s office, law enforcement storage facility, or medical facility in the State that will receive a portion of the grant amount.
42 U.S.C. § 3797k(4).

In the “Conclusions and Recommendations” section, the Draft Report asserts that “NIJ did not enforce the external investigation certification requirement imposed by the Justice for All Act of 2004 during the application process or exercise effective oversight of this aspect of the FY 2005 Coverdell Grant Program.” The OJP does not agree with this assertion, which constitutes the basis for the Draft Report. As discussed below, the certification required by section 3797k(4) was the exact certification that NIJ (acting on the advice of OJP counsel) required its Coverdell applicants to submit.

In order to receive funding, NIJ required1 applicants to submit a certification that:

...a government entity exists and an appropriate process is in place to conduct independent external investigations into allegations of serious negligence or misconduct substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system, medical examiner’s office, coroner’s office, law enforcement storage facility, or medical facility in the State that will receive a portion of the grant amount.

In requiring this certification from applicants, NIJ required them to provide no more and no less than what section 3797k(4) requires. Although the Draft Report fails to mention it, NIJ did not fund seven applications for the competitive portion of the program and two State applications for the formula portion of the program because the applicants did not submit the certification required by section 3797k(4) and the Coverdell Grant Program Announcement.

In reality, the Draft Report faults NIJ for not requiring more than what section 3797k(4) requires. Such extra-statutory requirements (assuming them to be permissible as a matter of law in a formula program)2 may or may not be desirable or advisable as a matter of policy, but OJP believes to be unfounded the suggestion that NIJ’s failure to implement them constitutes a failure to enforce section 3797k(4).3

The OIG appears to suggest that section 3797k(4) requires NIJ to do much more than require that applicants make the certification prescribed in that section. The OIG suggests further that section 3797k(4) requires NIJ to guide applicants in crafting this certification and then to “evaluate” the substance of the certification made by applicants. There is no statutory basis, however, for these suggestions. Section 3797k(4) does not require NIJ to make awards only to those applicants with respect to which “a government entity exists and an appropriate process is in place to conduct independent external investigations . . .” It requires, rather, NIJ to make awards only to applicants who submit “a certification that a government entity exists and an appropriate process is in place to conduct independent external investigations . . . .” The Draft Report takes no cognizance of the critical legal distinction between these two alternate schemes. The former scheme would make NIJ primarily responsible for determining if the required “entity” and “process” actually were “in place.” The latter scheme, however (the one actually enacted into law), makes the applicants themselves primarily responsible.4 Section 3797k(4) thus embodies a significant policy choice as to which party should bear the cost and burden of determining if the required “entity” and “process” is “in place”; from the Draft Report, it appears that the OIG seeks to reverse this statutory choice and faults NIJ for honoring it.5

The Executive Branch ordinarily may not impose novel substantive requirements on statutory formula grant programs; section 3797k declares how much or how little information Coverdell applicants must provide to NIJ to be eligible. And the statute here is clear: Once the required certifications have been made, formula program applicants are eligible to receive awards.6 Thus, with respect to the formula portion of the program (about 75% of the total funding), NIJ is statutorily denied any substantive discretion in deciding which applicants are eligible. Simply put, the Draft Report does not appear to recognize the legal fact that the formula portion of the Coverdell program is in the nature of an entitlement.

Separately, the OIG appears to believe that NIJ was required to provide “guidance” to applicants as to what would constitute an independent external investigation. Also, the Draft Report faults NIJ for not providing “case by case” responses to questions by applicants concerning section 3797k(4).7 The language of section 3797k(4), however, requires NIJ only to obtain certifications from each applicant, and imposes no obligation to review individual cases or provide “guidance” to applicants. All the Coverdell applicants — State and local governments — have access to their own legal counsel, and each applicant was free to consult with its own counsel to determine whether its particular situation permitted it to provide the necessary certification. As it happens, NIJ forwarded a number of specific applicant questions to OJP’s Office of the General Counsel (OGC), and NIJ (after consultation with OGC)8 did provide written guidance, including a set of general examples, to applicants.

The Draft Report views the form certification that NIJ required as inadequate. OJP responds by simply noting that the form certification was what the statute itself prescribes by its express and unambiguous terms. The certification prescribed by NIJ was — word-for-word — the same as the certification prescribed by section 3797k(4). Thus, the OIG’s position that the form certification was inadequate is tantamount to suggesting that section 3797k(4) itself is inadequate.

In addition to the foregoing, the following comments are offered to address and clarify certain statements in the Draft Report that appear to be mistaken or incomplete and therefore misleading:

On the first page of the Executive Summary, in the first paragraph, the Draft Report states that NJJ plans to distribute almost $15 million in fiscal year (FY) 2005 Coverdell Grants.” Although the initial appropriation for the Coverdell program for FY 2005 was $15 million, only $13,773,089 were available for distribution after statutory rescissions and program management expenses were deducted. Of these funds, $13,607,811 were awarded. Some funds were not awarded due to the fact that two State applicants for the formula portion of the program did not provide the required certifications and therefore did not receive a Coverdell Grant Program formula award for FY 2005.

On pages 3 and 4 of the Executive Summary, the Draft Report states the OIG’s belief that NIJ “should have considered requiring each applicant to provide a letter from the named government entity acknowledging its obligation to conduct the independent external investigations envisioned by the Justice for All Act of 2004.” To the extent this suggests that section 3797k(4) requires that the “government entity” must be under an “obligation” to conduct an investigation, we note that section 3797k(4) does not impose any such requirement. Section 3797k(4) requires only that “an appropriate process [be] in place to conduct investigations

On page 4 of the Executive Summary, in footnote 3, in connection with its assertion that NIJ should have considered requiring applicants to provide letters from named government entities, the Draft Report refers to NIJ Guidelines: How to Submit Applications, and states that the guidelines include “a requirement for grant applicants to submit letters of cooperation and support or administrative agreements from organizations with a significant responsibility under the grant.” This is a mischaracterization. The statement in the NIJ Guidelines (in section III) is that “Appendixes . . . include... [l]etters of cooperation/support or administrative agreements from organizations collaborating in the project, if any. (If applicable).”9

On numbered page 2 of the Draft Report, in footnote 6, the OIG indicates that “NIJ defines “state” or “states” to include the 50 states, the District of Columbia . . . .” NIJ does not define them; the statute does. See 42 U.S.C. § 37971(b).

On numbered page 8 of the Draft Report, the OIG states that OJP’s General Counsel was asked “whether it would have been reasonable to require applicants to provide a statement naming the government entity” and that “[t]he General Counsel agreed that it would be reasonable to request that applicants provide the name of the government entity.” This statement is incomplete, in that it neglects to mention that the General Counsel then also expressed his opinion that the law did not require such a result.

With respect to the first full paragraph on numbered page 8 of the Draft Report, NIJ did not participate in the panel discussion. An NIJ staff member was in the audience but made no comments during the presentation.

On numbered page 9 of the Draft Report, the OIG states that “[a]ttorneys in OJP’s Office of the General Counsel stated that if there were any doubts about the validity of a certification, it would be NIJ’s responsibility to obtain additional information from the applicants.” This is a mischaracterization. OGC indicated that, if there were a credible allegation or credible evidence that a particular certification was false or faulty, NIJ would have a duty to inquire. In so indicating, OGC did not intend to suggest that section 3797k requires NIJ to verify the validity of a certification in the absence of such a credible allegation or credible evidence.

On numbered page 13 of the Draft Report, the OIG states that “33 [applicants] submitted certifications signed by an official of an agency other than the applicant, and 36 submitted forms that did not clearly indicate the name of the government agency submitting the certification.... However, NIJ approved all 198 grant applications.” This is inaccurate. Of the 69 certifications that the Draft Report indicates vary from the form NIJ prescribed, only 37 pertain to applications that were in fact funded by NIJ.

In any event, it is difficult to understand the basis of the OIG’s particular objection to certain “certifications signed by an official of an agency other than the applicant,” if only because the blanket objection encompasses myriad situations, many of which would raise few, if any, legitimate questions about the sufficiency of a certification. For example, the blanket objection would cover cases where the applicant (or award recipient) is a component of a unit of local government or agency, and the head of the unit of local government or agency signs the certification.10 It also would include cases where the applicant is a unit of local government or agency and the head of a component of a unit of local government or agency is the signatory,11 or where one component of a unit of local government or agency is identified as the applicant and another component is the signatory, or where the relationship between the signatory and the applicant entity, while not specifically set forth in the certification, is nevertheless adequately described in other documents included in the application package. The OIG’s objection that certain certifications “did not clearly indicate the name of the government agency submitting the certification . . .” is subject to similar criticisms.

The Draft Report contains three recommendations. For ease of review, each of the three recommendations included in the Draft Report is restated in bold, followed by our response to the recommendation.

  1. We recommend that OJP, as part of its oversight of NIJ, require that all Coverdell Grant Program Announcements contain guidance on what constitutes an independent external investigation and examples of government entities and processes that could satisfy the certification requirement.

    As a policy matter, OJP agrees with the essential premise of the recommendation. For the reasons discussed above, OJP does not agree that the recommendation is required by the statute. NIJ provided guidance (including examples) to applicants in FY 2005 that was designed to illustrate elements of the certification that an applicant must take into account in determining whether it can make the certification required by section 3797k(4). Future Coverdell Grant Program Announcements will contain similar guidance.

  2. We recommend that OJP, as part of its oversight of NIJ, require that each Coverdell Grant applicant, prior to receiving funds, provide the name of the government entity with a process in place to conduct independent external investigations into allegations of serious negligence or misconduct.

    OJP does not agree to the imposition of such a requirement. As discussed earlier, section 3797k(4) includes no such requirement. Moreover, as the Coverdell program is in large part a formula program, it is not clear that such an extra-statutory requirement would be legally defensible. The burden on applicants and/or NIJ well might be significantly heavier than the OIG may believe. For example, where a State applicant wishes to provide Coverdell funds to both State and local subrecipients, and to include as subrecipients not only forensic laboratories, but also medical examiner’s offices, coroner’s offices, medical facilities, and law enforcement storage facilities, there may be no single government entity that has authority to conduct investigations; imposing the requirement recommended by the OIG might limit a State’s ability to distribute funds effectively among otherwise-eligible subrecipients, should circumstances change between the time an application is submitted to or funded by the Department of Justice and funds are distributed within the State.

    OJP and NIJ will, however, consider requesting, as an optional matter, in future Coverdell Grant Program Announcements that applicants provide the information that the 010 suggests we require as a mandatory matter.

  3. We recommend that OJP, as part of its oversight of NIJ, consider requiring each Coverdell Grant applicant, prior to receiving funds, to submit a letter from the government entity that will conduct independent external investigations acknowledging that the entity has the authority and process to investigate allegations of serious negligence or misconduct.

    OJP has considered the matter and does not intend to require Coverdell applicants to submit such letters. Section 3797k(4) includes no such requirement. Because the Coverdell program is in large part a formula program, it is not clear that such an extra-statutory requirement would be legally defensible. Moreover, the burden on applicants and NIJ could be considerable, most of all when an applicant would (in order to address the varied circumstances of prospective subrecipients) need to provide letters from more than one such “government entity.”

We appreciate the opportunity to comment on the draft report. If you have any questions, please feel free to contact me on 202-307-5933, or LeToya A. Johnson, OJP Audit Liaison, on 202-514-0692.

cc:

Beth MeGarry
Acting Deputy Assistant Attorney General for Operations

Glenn R. Schmitt
Acting Director, National Institute of Justice

Rafael Madan
General Counsel, Office of Justice Programs

Richard P. Theis,
Assistant Director, Audit Liaison Group
Justice Management Division

LeToya A. Johnson
OJP Audit Liaison

OJP Executive Secretariat
Control No. 20051599



Footnotes

  1. The form NIJ required applicants to complete is reproduced in Appendix I of the Draft Report.
  2. The structure of the Coverdell program is complex. In general terms, it is a formula program with a competitive component. Certain funds are allocated to State applicants based on population; other funds are allocated to State and/or local government applicants competitively. There is also a minimum award for State applicants. The competitive allocations, the population-based allocations, and the minimum award together determine the size of an award to a State. For purposes of convenience, we use the terms “formula portion” and “competitive portion,” though they are not entirely distinct as a legal matter.
  3. If the OIG disagrees with this legal conclusion, the disagreement should be referred for resolution to the Office of Legal Counsel pursuant to 28 C.F.R. § 0.25; 28 U.S.C. § 512.
  4. The certification regime established by section 3797k authorizes NIJ to accept applicants’ certifications as prima facie evidence of what they certify. NIJ is of course prepared to take appropriate oversight action, for example, if it were to receive credible information that suggests that a particular certification is false.
  5. The Draft Report states that “[b]ecause the Department relies on applicants’ statements in the grant application process, it is important that the applicants’ certifications contain the information necessary to evaluate the validity of the certification and to support sanctions if applicant’s {sic] certifications are later determined to be false.” This position is inconsistent with the very notion of a certification requirement.
  6. NIJ follows the same prima-facie-evidence approach with respect to all the certifications required by 42 U.S.C. § 3797k.
  7. The Draft Report also indicates that NIJ informed the OIG that it would request the information necessary to “evaluate” certifications on a case-by-case basis, and that NIJ did not do so. This is misleading. NIJ indicated that guidance provided in response to questions from individual applicants might be heavily fact-dependent. It did not indicate that it would collect facts and then determine whether or not particular certifications were or would be appropriate.
  8. It should be noted that this instance of action pursuant to consultation with OGC was hardly unique; NIJ, throughout, sought and received OGC’s advice regarding the section 3797k(4) requirement and the form certification.
  9. In this same connection, the Draft Report states that “NIJ has required such letters in two other grant announcements ....” This is inaccurate and misleading. First, neither of the two grant announcements identified by the OIG relates to a statutory formula program. Second, one of the announcements does not appear to refer to letters of cooperation. Third, the grant announcement that does refer to such letters tracks the NJJ Guidelines in that, through a checklist, it states “You provide if applicable ...[l]etters of cooperation/support or administrative agreements from organizations collaborating in the project (if applicable)... if more than one agency from your State decides to collaborate in the project.”
  10. An analogy would be the Attorney General’s signing a certification for an application submitted by OJP.
  11. An analogy here would be to the AAG for the Civil Division signing a settlement agreement on behalf of the Department of Justice.



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