Whistleblower Protection: Opportunities Exist for DOD to Improve the Timeliness and Quality of Civilian and Contractor Reprisal Investigations
Highlights
What GAO Found
The Department of Defense Office of Inspector General (DODIG) did not meet statutory or internal timeliness goals for more than 83 percent of the Department of Defense (DOD) civilian and contractor employee whistleblower reprisal investigations it closed in fiscal years 2013 through 2015. DODIG has taken steps to improve timeliness and has reduced the average length of its investigations, intake process, and oversight reviews. Although the average length of all closed investigations improved by about 20 percent over the 3 fiscal years, it was significantly longer than the established timeliness goals. For example, DODIG's timeliness goal is 240 days for DOD appropriated-fund and non-appropriated-fund civilians, but in fiscal year 2015 the average length of these investigations was 608 and 402 days, respectively. Similarly, the statutory timeliness goal for DOD contractors and subcontractors is 180 days, and in fiscal year 2015 the average length for those investigations was 285 days. To continue to improve timeliness, DODIG requested funds to increase its personnel, but it has yet to determine the feasibility of collecting key workload data such as labor hours that would enable it to strengthen its assessment of personnel requirements and allocate personnel in the most efficient manner.
DODIG has established processes to help ensure the independence and thoroughness of the DOD civilian and contractor cases it handles, including a quality-assurance process and an internal controls process. However, a lack of documentation may limit its ability to fully evaluate threats to its independence, and it does not always follow its complaint intake process. GAO's review of case files closed by DODIG in fiscal year 2015 found that some key documentation or data needed to demonstrate compliance with these processes were missing or were not uploaded to DODIG's case-management system in a timely manner. GAO found, and DODIG officials acknowledged, that DODIG's internal controls checklist for assessing case-file completeness does not capture all key documentation and investigative events, thus limiting DODIG's ability to ensure the completeness and accuracy of case-file documentation and data.
DODIG has conducted oversight of reprisal cases provided by some of the defense intelligence component inspectors general—such as the Defense Intelligence Agency and the National Security Agency. However, DODIG and the components have not fully addressed requirements related to DODIG's oversight of component cases, and there is not a process to do so. As a result, DODIG and the components are unable to completely fulfill their prescribed roles related to the oversight of component cases.
In April 2017, DODIG developed performance measures to assess the timeliness of its investigations and oversight reviews for fiscal year 2017 that demonstrate many, but not all, attributes of successful performance measures. However, DODIG has not established performance measures to assess the quality of its investigations and oversight reviews for fiscal year 2017 and beyond. By developing performance measures that fully reflect these key attributes, DODIG will be better positioned to assess the timeliness and quality of its investigations and oversight reviews and determine whether initiatives are on track to achieve desired outcomes.
Why GAO Did This Study
Whistleblowers play an important role in safeguarding the federal government against waste, fraud, and abuse. However, whistleblowers also risk reprisal, such as demotion, reassignment, and firing.
GAO was asked to review DODIG's reprisal investigations program for DOD civilians and contractors. This report examines the extent to which DODIG has (1) met and taken steps to achieve key timeliness goals for civilian and contractor reprisal investigations, (2) established processes to ensure that civilian and contractor reprisal cases are handled independently and thoroughly, (3) conducted oversight of civilian reprisal cases handled by the defense intelligence components, and (4) developed performance measures to assess the timeliness and quality of its investigations. GAO analyzed DODIG data for cases closed from fiscal years 2013 through 2015, reviewed a generalizable random sample of 178 cases closed in 2015, which included all fully investigated cases, and interviewed cognizant officials and investigators.
Recommendations
GAO is making seven recommendations, including that DODIG assess the feasibility of collecting key workload data, document threats to independence and incorporate such information into an evaluation of independence threats, strengthen its internal controls checklist, develop a process to oversee all defense intelligence component cases, and develop performance measures to assess its quality and timeliness. DODIG concurred with the recommendations.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| DOD Office of the Inspector General | The DOD Inspector General should assess the feasibility of collecting additional workload data, such as the amount of direct and indirect labor hours associated with each case, and including such data in future personnel requirements assessments, as appropriate. (Recommendation 1) |
The DOD Inspector General concurred with this recommendation and in September 2019 DODIG reported that it had completed such an assessment, determining that it would not collect additional workload data based on the practices of ten other Inspector General and law enforcement organizations it had contacted.
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| DOD Office of the Inspector General | The DOD Inspector General should report regularly to Congress on the timeliness of civilian and contractor investigations, including those contractor and subcontractor cases exceeding the 180-day timeliness requirement. (Recommendation 2) |
DODIG concurred with this recommendation. DODIG included in the November 1, 2017, installment of its regular semiannual letters to congressional oversight committees information on the timeliness of civilian and contractor investigations closed in the second half of fiscal year 2017, including the number of contractor and subcontractor cases over 180 days. These letters were sent to the chairs of the Senate committees on Armed Services and Homeland Security and Governmental Affairs, and the Subcommittee on Defense, Committee on Appropriations; and to the chairs of the House committees on Armed Services and Oversight and Government Reform, and the Subcommittee on Defense, Committee on Appropriations. In August 2016, the Principal Deputy Inspector General performing the duties of the DOD Inspector General sent a letter to GAO conveying DODIG's commitment to send these letters to its congressional oversight committees on a semiannual basis, within 30 days following the end date of each Semiannual Report to Congress. By taking this action, DODIG will provide Congress with enhanced visibility over the timeliness of civilian and contractor investigations, which constitute the majority of cases that DODIG investigates.
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| DOD Office of the Inspector General | The DOD Inspector General should implement a process to document employee recusals and impairments to independence and incorporate such information into an aggregate-level evaluation of threats to DODIG's independence. (Recommendation 3) |
The DOD Inspector General concurred with this recommendation. In May 2021, DODIG updated its Administrative Investigations Manual to require that investigators recused from cases due to a real or perceived conflict of interest provide a written memorandum explaining the reason for their recusal. Subsequently, in October 2021, the Deputy Inspector General for Administrative Investigations issued a memorandum establishing a process to review these memorandums annually in order to identify trends or signs of potential impartments to the independence and objectivity of investigators, and develop a report on any associated findings. By taking this action, DODIG will improve its ability to identify threats to its independence, decrease the potential for bias, and help to ensure that investigations are independent in both fact and appearance.
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| DOD Office of the Inspector General | The DOD Inspector General should establish and clearly communicate a declination policy for nondiscretionary cases in the AI Investigations Manual or other guidance, and align this policy with the intake policy. (Recommendation 4) |
The DOD Inspector General concurred with this recommendation. In January 2020, DODIG updated its Administrative Investigations Manual to outline criteria under which a case can be declined without completing the intake process and communicated the update to its employees. These criteria include, among others, complaints filed in the wrong forum, duplicate complaints, and complaints subject to ongoing criminal proceedings. By taking this action, DODIG will help ensure officials responsible for making declination determinations have clear guidance that facilitates decisions that are consistently aligned with policy.
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| DOD Office of the Inspector General | The DOD Inspector General should revise the existing internal controls checklist to include all key case-file documentation and required investigative events. (Recommendation 5) |
The DOD Inspector General concurred with this recommendation and, in response, revised its internal controls checklist in July 2020 to include key case-file documentation and required investigative events, including documentation of an intake worksheet, required roundtables, and review by the program analyst for quality assurance. By taking this action, DODIG will help ensure compliance with CIGIE standards related to thoroughness and adequacy of case-file documentation, and improve the currency, accuracy, and completeness of data in its case-management system.
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| DOD Office of the Inspector General | The DOD Inspector General should work in coordination with the Secretary of Defense, the Under Secretary of Defense for Intelligence, and the inspectors general of the defense intelligence components to establish a process to fully implement the requirements of Directive-Type Memorandum 13-008 so that DODIG (1) receives notifications of all allegations received by the components, (2) reviews all component determinations to not investigate allegations, and (3) reviews all investigations conducted by the components. (Recommendation 6) |
The DOD Inspector General concurred with this recommendation and in July 2019 established a Memorandum of Understanding with the defense intelligence component IGs to clarify the relationship and responsibilities among the IGs, including in relation to the notification and review requirements specified by Directive-Type Memorandum 13-008. By taking this action, DODIG and the defense intelligence component IGs have clarified their roles and responsibilities in relation to the oversight of component cases, and thus met the intent of our recommendation.
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| DOD Office of the Inspector General | The DOD Inspector General should develop quality performance measures and enhance existing timeliness performance measures to reflect key attributes of successful performance measures. At minimum, these measures should be clear, quantifiable, and objective, and they should include a baseline assessment of current performance. (Recommendation 7) |
DODIG concurred with this recommendation and acted to both enhance its timeliness performance measures and develop quality measures based on measures it had used prior to fiscal year 2017. For fiscal year 2018, DODIG enhanced its timeliness measures by calculating baseline and trend data for all of the measures, and adjusting the parameters for success to align with corresponding goals for its oversight review measures. In addition, DODIG developed quality performance measures that are designed to test against quality standards for investigations and the requirements outlined in a DODIG investigations manual. The measures addressed the minimum key attributes of effective performance measures stated in our recommendation in that they are clear, quantifiable, and objective, and because the data being collected will allow DODIG to determine baselines and trends moving forward. By enhancing its existing timeliness measures and developing quality performance measures, DODIG decision makers will be better positioned to assess DODIG's performance in conducting civilian and contractor investigations and oversight reviews, and determine whether improvement initiatives are on track to achieve desired outcomes.
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