         Procedures for Investigating Allegations Concerning
                   Senior Administration Officials

A proposal w hereby personnel from o n e ag en cy ’s Office of Inspector G eneral would conduct an
  investigation o f allegations of non-crim inal m isconduct by em ployees o f another agency, or by the
  h ead o f an o th er agency, and report to the P resident’s C ouncil on Integrity and Efficiency, is of
  qu estio n ab le legality.

T he P resident has inherent authority to supervise and direct the perform ance o f his appointees in
   o ffice, and to investigate allegations of possible m isconduct related to that perform ance.

U nder the In sp ecto r G eneral Act, an Inspector G eneral and his staff are authorized to conduct
   investigations into allegations of m isconduct only w hen those allegations involve fraud and abuse
   in th e program s and operations o f th e particular agency in which the office is located.

An agency head has authority to investigate allegations of m isconduct against any officer or employee
  o f his agency, including the agency’s Inspector G eneral. If under the circum stances he deem s it
  p ru d en t, an agency head may request that investigative personnel be detailed from another agency
  o n a reim bursable basis to conduct such an investigation, though in such a case the investigative
  authority o f any such detailed personnel could not exceed his own.

                                                                               November 5, 1982

   MEMORANDUM OPINION FOR THE SPECIAL COUNSEL TO THE
     ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION

   In accordance with your request, we have reviewed the draft proposal entitled
“Procedures for Investigating Allegations Concerning Senior Administration
Officials.” The draft proposal was prepared for the President’s Council on
Integrity and Efficiency, and forwarded to you on October 4, 1982, by Joseph
Wright, Chairman of the Council. You indicate that some specific questions were
raised at the Council’s October 12 meeting relating to the source of authority for
certain of the proposed procedures, including the authority to pay the costs of an
investigation. Concern was also expressed over the potential for conflict among
federal law enforcement agencies generated by the proposed procedures. Our
review indicates that the proposed procedures, as we understand them, are legally
deficient in several respects.

                                                   I.

  The procedures set forth in the draft proposal apply whenever the Council or
one of its members receives an “allegation” concerning an Inspector General, a

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staff member in an Office of Inspector General, or the head of a department or
agency represented on the Council.1 Any allegation of criminal conduct re­
ceived, or evidence of criminal conduct “uncovered” during the course of an
investigation, will be referred directly to the Department of Justice, as is required
by 28 U.S.C. § 535. Under such circumstances, “the fact finding for the Council
will be terminated until Justice has completed its review.”
   “Non-criminal allegations”2 against an Inspector General, or a presidentially
appointed Deputy Inspector General, are to be “brought to the attention o f’ the
Chairman of the Council. The Chairman, “in consultation with” the head of the
agency to whom the Inspector General reports and the Deputy Attorney General,

           shall request an Assistant Inspector General for Investigations
           (not reporting to the IG in question) to conduct a fact finding for
           the Chairman of the Council. For the purposes of this fact finding,
           the AIG (Investigations) will report directly to the Chairman.3

The report of the factfinder “shall be provided directly” to the Department of
Justice, the Merit Systems Protection Board, the Office of Government Ethics,
and the Office of Personnel Management, so that they might determine whether
“there is evidence of any violations of laws or regulations for which they are
responsible.” These agencies are to notify the Chairman of “their findings and the
actions which they will take.” The Chairman himself is at this point provided
with a “summary” of the factfinding. The Chairman, in consultation with the
head of the agency to whom the Inspector General reports and the Deputy
Attorney General, then reports to the Counsel to the President on the results of the
factfinding.
   Non-criminal allegations against Office of Inspector General staff, or against
heads of departments and agencies represented on the Council, are also dealt with
in the draft proposal. In brief, such allegations are to be referred by the Chairman
of the Council to the responsible Inspector General for investigation. A copy of
the Inspector General’s report is to be provided to the head of the department or
agency involved, in accordance with §§ 3(a) and 4(a)(5) of the Inspector General

   1The Council was established as an interagency committee by Executive Order 12301 of March 26, 1981, 46
Fed. Reg 19211 Its 23 members include the Deputy Attorney General, the Director of the Office of Personnel
M anagement, the Executive Assistant Director of Investigations of the Federal Bureau of Investigation, and all of the
statutory Inspectors General except those of the military departments. Under Section 2 of the Executive Order, the
Council is charged wtih developing plans for “coordinated government-wide activities which attack fraud and waste
in government programs and operations," including “standards for the management, operation, and conduct of
inspector general-type activities,” and policies to ensure “the establishment of a corps of well-trained and highly
skilled auditors and investigators " Section 2(d) directs the Council to “develop interagency audit and investigation
programs and projects to deal efficiently and effectively with those problems concerning fraud and waste which
exceed the capability o r jurisdiction of an individual agency*’
   2 The draft proposal does not give any examples of non-cnminal activity which might be the subject of an
allegation against an Inspector General. We assume that “non-criminal allegations" which could spark an investiga­
tion might be related directly to the Inspector General’s performance of his statutory functions, or related more
generally to his performance as an officer and employee of the United Stales.
   3 It is not clear from the draft proposal whether some procedure for screening non-criminal allegations is to be
established, or whether (as it would appear from a literal reading of its provisions) each and every allegation brought
to the attention of the Chairman or members of the Council must be the subject of factfinding by an Assistant
Inspector General for Investigations.


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Act of 1978, Pub. L. No. 9 5 ^ 5 2 ,9 2 Stat. 1101,5 U .S.C. App. (Supp. IV 1980).
In addition, the Inspector General is required to “b rief’ the Chairman of the
Council of any “significant findings” resulting from his investigations.4 In the
case of allegations against an agency head, the Inspector General is required to
provide a copy of his report to the Department of Justice, the Merit Systems
Protection Board, the Office of Government Ethics, and the Office of Personnel
Management. These agencies in turn must determine whether there is evidence in
the report of any violation of laws or regulations over which they have respon­
sibility, and notify the Inspector General and the Chairman of the Council of
“their findings and the actions which they will take.” A summary of the Inspector
G eneral’s factfinding is then provided to the Chairman of the Council, who, in
consultation with the Deputy Attorney General, reports to the Counsel to the
President on the results of the investigation.
   The draft proposal also deals with the “release of investigatory files and report
findings” pursuant to Freedom o f Information Act and Privacy Act requests. Such
requests are to be “handled according to established procedures.”5 With respect
to Privacy Act requests, the draft proposal directs that “for each system of records
created to contain these investigatory files, a regulation should be promulgated
claiming the (j)(2) exemption.”6 The draft proposal further provides that all
investigatory files and the investigative report are to be maintained by “[t]he IG’s
office that conducts the investigation.”

                                                          n.
   The President has inherent authority to supervise and direct the performance of
his appointees in office, and to investigate allegations of possible misconduct
related to that performance. We assume for present purposes that much of this
authority could be delegated to the Council or its Chairman. See 3 U.S.C.
§§ 301, 302. However, Executive Order 12301 does not accomplish such a


   4 In the case o f allegations against Office o f the Inspector General staff, the Inspector General is required lo
“ inform” the Chairman of “any significant adverse findings” resulting from his investigation and “the subsequent
follow-up action.” It is nol clear whether in th is case the Inspector General is also required to inform the Chairman of
findings which are not “adverse.”
   5 It is not clear w hether the “established procedures” referred to are intended to include procedures to be
established by the Council itself.
   6 The d raft’s reference to the “(j)(2) exem ption” is apparently to the provision m the Privacy Act of 1974, Pub. L.
93-579, 88 Slat 1897,5 U .S.C § 552a, w hich permits certain agencies to promulgate rules lo exempt systems of
records from certain o f the A ct’s provisions. S e e 5 U S C. § 552a(j)(2). The <j)(2> exemption is available only lo an
agency “which performs as its principal function any activity pertaining to the enforcement of criminal la w s . . . .”
Most Offices of Inspector G eneral, whose principal functions d o not involve the enforcement of criminal laws, may
avail themselves only of the more limited exemption contained in subsection (k)(2) of the Privacy Act for
“ investigatory material compiled for law enforcement purposes.” See, e.g , 24 C F.R. § 16.15(a)(2) (1981)
(investigative files in H U D ’s Office of Inspector General exem pt under § 552a(k)(2)). Note that, like subsection
(j)(2), subsection (k)(2) permits an agency to exem pt records from certain of the Act’s accounting requirements, and
from its provisions giving an individual access to information about himself. It does not permit an agency to exempt
records from the A ct’s prohibitions on disclosure of information concerning individuals without their written
consent. See § 552a(b). Circumstances under which such disclosure is permissible are discussed in note 12, infra.


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delegation,7 and the draft proposal does not refer to any other authority relied
upon for the investigation of non-criminal allegations against an Inspector
General. It is our understanding that in any event the Council has no funds
appropriated to it which might be used for this purpose.8
   Moreover, the Inspector General Act authorizes an Inspector General and his
staff to conduct investigations into allegations of misconduct only when those
allegations involve fraud and abuse in the programs and operations of the
particular agency or department in which the Office is located.9 Thus, funds
appropriated for the activities of an Office of Inspector General in one agency
would ordinarily not be available to conduct an investigation into allegations of
misconduct by personnel in another agency. An Assistant Inspector General

   7 None of the Council's functions set forth in § 2 of the Order include any substantive investigative functions See
note 1. supra While § 2(d) might be interpreted to authorize the Council lo develop procedures lo investigate
misconduct by Inspectors General, we cannot construe it also to bestow authonty on the Council actually to conduct
such investigations Such a delegation of substantive presidential authority to an agency not otherwise authonzed to
engage in such activities would, in our view, have to be explicit See 3 U S C § 302. The Council Chairman's
responsibilities under § 3 of the O rder are confined to establishing procedures for the Council, reporting to the
President and agency heads, and establishing committees of the Council. Section 4(c) describes the Chairman's
analogous administrative functions in connection with the Coordinating Conference of the Council. We are unaware
of any other presidential delegation or directive, either to the Council or to its Chairman, relating to the investigation
of allegations against an Inspector General
   8 Under § 5(a) of Executive O rder 12301. funds for the “administrative support” of the Council are provided by
the Director of the Office of Management and Budget The head of each agency represented on the Council is
responsible for providing its representative with “such administrative support as may be necessary, in accordance
with law, to enable the agency representative lo carry out his responsibilities." See § 5(b). While 31 U S.C. § 691
(1976) permits the expenditure o f appropriated funds “for the expenses of committees, boards, o r other interagency
groups engaged in authonzed activities of common interest," this statute does not provide authority for an agency
represented on the Council to expend funds on activities which are not already authorized by its existing
appropnation Section 691 allows an interagency group to continue in existence for longer than a year without
separate appropnation for its activities, as would otherwise be required by 31 U.S C § 696, but does not provide
any independent authonty for the expenditure o f agency funds See H.R Rep No. 2023, 78th Cong , 2d Sess.
(1944). The absence of authority in one agency’s Office of Inspector General to investigate another agency’s
Inspector General is discussed in the text and note 9 Similarly, while we have not examined the issue in detail, we
are unaware of any funds appropriated to the Office of Management and Budget which could be used to conduct the
sort of investigations contemplated in the proposed draft.
   9 The duties and responsibilities of an Inspector General under § 4(a) of the Inspector General Act are descnbed
in terms of “the establishment within which his Office is established." As more specifically enumerated in
paragraphs (1) through (5) of that section, the Inspector General's duties and responsibilities are explicitly confined
to the “ programs and operations” of his own “establishment.” Similarly, the investigative aulhonty given each
Inspector General under § 6(a) of the Acl is limited to “programs and operations” of his own “establishment ”
Finally, the Inspector General is authonzed under § 7(a) of the Acl to investigate only complaints from employees
“of the establishment.” Section 11 (2) of the Act defines an “establ ishment” as the particular agency or department in
which the Office o f Inspector General is established by the Act. The legislative history of the Inspector General Act
makes plain that the Inspector General's authonty and responsibility were intended to be restncted to the
investigation of fraud and waste in the particular department in which his Office was established. See, e.g , S. Rep.
No 1071. 95th Cong , 2d Sess. 7 (1978).
        [T]he legislation gives the llnspector General] no conflicting policy responsibilities which could
        divert his attention or divide his time, his sole responsibility is to coordinate auditing and investigat­
        ing efforts and other policy initiatives designed lo promote the economy, efficiency and effectiveness
        of the programs of the establishment.
    a /jo H R. Rep No 584, 95th Cong , 1st Sess 12-14 (1977); 124 Cong Rec. 32033 (1978) (remarks o f Rep
Fountain). The Office of Assistant Inspector General for Investigations is described in § 3(d)(2) of the Inspector
General Act as having “responsibility for supervising the performance of investigative activities relating to . .
programs and operations [of the establishment]." There is no authonty under the Inspector General Act, or under
any appropriation act of which we are aware, for an Assistant Inspector General for Investigations, or any m em ber of
an Inspector General’s staff, to conduct investigations which do not “relate to” the “programs and operations” o f the
agency in which he is employed.


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might lawfully be directed by his own agency head to investigate allegations
against the Inspector General to whom he reports, 10or allegations against another
Inspector General on a detail basis." However, an Assistant Inspector General
has no authority under the Inspector General Act to conduct an investigation
which is unrelated to his duties and responsibilities under the Act respecting his
own agency.

                                                          III.

   We are less concerned over the provisions in the draft proposal which require
that the factfinder’s report in an investigation of non-criminal allegations against
an Inspector General be sent to the Department of Justice, the Merit Systems
Protection Board, the Office of Government Ethics, and the Office of Personnel
Management. These provisions also come into play in connection with an
investigation of non-criminal allegations against the head of an agency. As long
as the factfinder is properly authorized to perform the investigation in question,
and to disclose his report to other federal agencies, there would appear to us no
reason in law why the named agencies should not receive a copy of the report.12
   Moreover, none of the agencies named has exclusive or even primary jurisdic­
tion over violations of the non-criminal laws and regulations for which they are
responsible. Compare 28 U.S.C. § 535, which mandates the “expeditious[]”
referral of all criminal information or allegations to the Department of Justice.
Indeed, in some cases jurisdiction over non-criminal allegations attaches only
after a matter has first been investigated at the agency level. See, e.g., 5 U.S.C.

   10 Ordinarily, an agency head has authonty, m the exercise of his supervisory responsibilities for the proper
functioning of his agency, to investigate allegations of misconduct in office against an employee or officer of his
agency, and to take appropriate action in the event those allegations prove well-founded. Funds appropnated for the
general administration of the agency would be available for this purpose The agency head’s authority extends to the
agency’s Inspector General, who under § 3(a) of the Inspector General Acl reports to and is “under the general
supervision o f ’ the head of his agency However, § 3(a) also enjoins the agency head not to “prevent or prohibit the
Inspector General from initiating, carrying o u t, or completing any audit or investigation .         .” Thus, an agency
head might find it awkward to investigate allegations agai nst his Inspector General without violating or appearing to
violate this statutory restnction Depending on the nature of the allegations against the Inspector General (e g ,
whether the allegations related directly to the Inspector G eneral’s conduct of his statutory duties), the agency head
might decide to limit his own personal involvement in the matter, and request the President to direct an investigation
of the Inspector G eneral’s conduct.
   11 For obvious reasons, an agency head m ight not wish lo rely upon one of the agency’s own Inspector General’s
staff to conduct an investigation of the Inspector General himself If appropnate investigative personnel were not
available in other pans of his agency, the agency head could request that investigative personnel be detailed from
another agency on a reimbursable basis, under authority of the Economy Acl See 31 U S.C. § 686. Personnel from
another agency’s Office o f Inspector General would seem lo be particularly suited for such a detail. We note,
however, that in conducting an investigation in another agency at the request of the head of that agency, personnel
detailed from another Inspector General’s Office might be limited to the investigative authonty of the head of the
agency to which they were detailed Many o f the particular powers given an Inspector General and his staff under
§ 6(a) o f the Inspector General A ct, such as the power to subpoena documents, may not be available to an agency
head conducting his own independent investigation of misconduct by officers of his agency
   12 The Pnvacy Act, 5 U .S C § 552a, permits disclosure of records containing information about an individual
without his consent in a number of specified circumstances, including two in particular which seem potentially
applicable in this case. First. § 552a(b)(3) permits disclosure fo ra “routine use,” i.e., a use “ for a purpose which is
compatible with the purpose for which it was collected.’’ See also § 552a(a)(7) A “routine use” must be established
by publication in the Federal Register See § 552a(e)(4)(D). Second, § 552a(b)(7) permits disclosure to another
federal agency “ for a civil or cnm inal law enforcement activity if the activity is authonzed by law ” Disclosure under
this section is permissible only if the head o f the agency desinng the information has made a written request to the
head of the agency maintaining the record


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§ 1206(b) (Supp. II 1978) (Special Counsel of the Merit Systems Protection
Board must refer complaints of prohibited personnel practices to the appropriate
agency head for initial investigation). See also 5 U.S.C. § 2302(c) (agency head
responsible for enforcement of laws and regulations relating to personnel
management).
                                                         IV.

   The procedures proposed for investigating allegations against Office of Inspec­
tor General staff or the head of an agency seem to us for the most part legally
unobjectionable. We question, however, whether an Inspector General would
have authority under the Inspector General Act to investigate all non-criminal
allegations against the head of the agency, including those unrelated to the
Inspector General’s statutory responsibilities respecting the programs and ac­
tivities of his establishment. We also question whether either the Council or its
Chairman has been properly authorized to receive information from an Inspector
General relating to an investigation. See notes 7 and 12, supra.

                                                          V.

   We appreciate the Council’s interest in devising an effective means of holding
an Inspector General and his staff accountable for their conduct under non­
criminal laws and regulations generally applicable to officers and employees of
the Executive Branch. And we recognize that the Council’s procedures are still in
the process of development. While we have expressed a number of legal reserva­
tions about the procedures as presently drafted, it should be possible to accom­
plish the Council’s objectives through more explicit reliance on the President’s
inherent authority to oversee the performance of his appointees in office.13 In
addition, depending on the nature of the allegations involved, the Council may
find it useful to draw upon an agency head’s inherent authority to supervise the
conduct of officers and employees of his agency.14
   We would be interested to learn what further steps the Council decides to take
in connection with this matter, and to be of further assistance should you so
desire.
                                                                          R a lph W. Tarr
                                                            Deputy Assistant Attorney General
                                                                Office c f Legal Counsel

   13 While the President could delegate this oversight function in the case of Inspectors General to the Council or its
Chairman, see 3 U.S C §§ 301 and 302, there would remain the question of what funds could be used to pay its
costs See note 8. supra. If the President were to retain overall responsibility for directing investigations into
allegations against an Inspector General, funds appropriated to the general activities of the White House Office
could be used for this purpose. If necessary, trained investigative personnel, including Inspector General staff,
could be detailed from other agencies on a reimbursable basis. See 3 U.S C. § 107. Alternatively, if the President
were to direct the investigation of his appointees by an agency which is otherwise authorized to investigate particular
types of misconduct, funds appropriated to that agency could be made available for the investigation.
   14 An agency head's authority to investigate allegations against officers and employees of his agency, and to use
funds appropnated for the general administration of the agency for this purpose, is discussed in notes 10 and 11,
supra. Under such circumstances the investigator should report directly to the agency head, rather than to the
Chairman o f the Council, as the proposal currently provides in the case of investigations of Inspectors General


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