Jurisdiction of Integrity Committee When Inspector General Leaves Office After Referral of Allegations ( 2006 )

Jurisdiction of Integrity Committee When Inspector
General Leaves Office After Referral of Allegations
The Integrity Committee has authority to review, refer for investigation, and report findings with
respect to administrative allegations of wrongdoing made against a former Inspector General when
the Committee receives the allegations during the subject’s tenure as Inspector General, even if the
subject later leaves office.
September 5, 2006
MEMORANDUM OPINION FOR THE CHAIRMAN OF THE
INTEGRITY COMMITTEE OF THE PRESIDENT’S COUNCIL ON
INTEGRITY AND EFFICIENCY
You have asked us whether the Integrity Committee of the President’s Council
on Integrity and Efficiency (“Integrity Committee” or “Committee“) has authority
to review, refer for investigation, and report findings with respect to administrative
allegations of wrongdoing made against a former Inspector General (“IG”), when
the Committee received the allegations during the subject’s tenure as Inspector
General and the allegations relate to actions taken while in office. See Letter for
Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel,
from Chris Swecker, Chairman, Integrity Committee, President’s Council on
Integrity and Efficiency at 3 (Oct. 24, 2005) (“Referral Letter”). We conclude that
the Committee has continuing authority with respect to allegations the Committee
received while the subject of the allegations was serving as Inspector General,
even if the subject leaves office after receipt of those allegations.
I.
The President’s Council on Integrity and Efficiency (“Council” or “PCIE”), as
established by Executive Order 12301 in March 1981, consisted of specified
Inspectors General and other federal officials. 3 C.F.R. 144 (1981 Comp.). In a
May 1992 executive order, the President expanded the membership of the Council
to include all presidentially appointed Inspectors General and other government
officials. Exec. Order No. 12805, 3 C.F.R. 299 (1992 Comp.). In the same order,
the President established the parallel Executive Council on Integrity and Efficien-
cy (“ECIE”), which includes all “civilian statutory Inspectors General not
represented on the PCIE.” Id. § 2(b)(2). The Deputy Director for Management of
the Office of Management and Budget is the Chairperson of both groups. Original-
ly, the PCIE and ECIE were charged with developing plans to help eliminate
waste and fraud in governmental programs, assisting in the establishment of a
corps of effective Inspector General staff members, and related matters. Exec.
Order No. 12301, § 2; Exec. Order No. 12805, § 3. Later, the Chairperson of the
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Jurisdiction of Integrity Committee When IG Leaves Office After Referral
PCIE and ECIE established the Integrity Committee as a component of the two
councils composed of certain Council members. Referral Letter at 2.
In 1996, the President expanded the authority and mandate of the Councils to
undertake investigative functions through the Integrity Committee. Exec. Order
No. 12993, 3 C.F.R. 171 (1996 Comp.). Executive Order 12993 authorizes the
Integrity Committee to address certain “administrative” (i.e., non-criminal)
allegations 1 against Inspectors General, as well as administrative allegations
against staff members of an Office of Inspector General (“OIG”) whose investiga-
tion might pose a conflict of interest for the OIG in which they serve. Id. pmbl.
The order directs that the Integrity Committee, “[t]o the extent permitted by law,
and in accordance with this order, . . . shall receive, review, and refer for investiga-
tion allegations of wrongdoing against IGs and certain staff members of the
OIGs.” Id. § 1(a). The order directs that the Integrity Committee “shall review all
allegations of wrongdoing it receives against an IG who is a member of the PCIE
or ECIE, or against a staff member of an OIG acting with the knowledge of the IG
or when the allegation against the staff person is related to an allegation against
the IG.” Id. § 2(a). 2 Once an allegation is received, the Integrity Committee is
required to “determine if there is a substantial likelihood that the allegation . . .
discloses a violation of any law, rule or regulation, or gross mismanagement, gross
waste of funds or abuse of authority.” Id. § 2(c). If the Integrity Committee
determines that an allegation “does not warrant further action, it shall close the
matter” and notify the Chairperson of the PCIE/ECIE of its determination. Id.
§ 2(d). If the Integrity Committee determines that the allegation meets that
standard, however, it must take one of two actions. Ordinarily, the Committee
“shall refer the allegation to the agency of the executive branch with appropriate
jurisdiction over the matter.” Id. § 2(c). If, however, “a potentially meritorious
administrative allegation cannot be referred to an agency of the executive branch
with appropriate jurisdiction over the matter, the Integrity Committee shall certify
the matter to its Chair, who shall cause a thorough and timely investigation of the
allegation to be conducted in accordance with this order.” Id.
1
The Integrity Committee has defined “administrative misconduct” to mean “noncriminal miscon-
duct, or misconduct the Public Integrity Section declines to pursue on a criminal basis, that evidences a
violation of any law, rule, or regulation; or gross mismanagement; gross waste of funds; or abuse of
authority, in the exercise of official duties or while acting under color of office.” Policy and Procedures
for Exercising the Authority of the Integrity Committee of the President’s Council on Integrity and
Efficiency at 7 (Nov. 5, 2004) (“Policy and Procedures”).
2
The order also directs Inspectors General to “refer” administrative allegations against “senior staff
member[s]” to the Committee when “review of the substance of the allegation cannot be assigned to an
agency of the executive branch with appropriate jurisdiction over the matter” and the Inspector General
“determines that an objective internal investigation, or the appearance thereof, is not feasible.” Exec.
Order No. 12993, § 2(b).
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Executive Order 12993 authorizes the Director of the FBI, through his desig-
nee, who serves as Chairperson of the Integrity Committee, to “consider” adminis-
trative allegations and “where appropriate, to investigate” them. At the request of
the Chairperson, federal agencies may detail personnel to the Committee, includ-
ing personnel from various OIGs, who will be “subject to the control and direction
of the Chairperson, to conduct an investigation.” Id. § 3(b). At the conclusion of
the investigation, a report is to be issued to the Integrity Committee (either by the
Chairperson or, if the matter was referred for investigation to an agency, the head
of that agency). Id. § 4. Reflecting the fact that an Inspector General is supervised
by the head of the agency in which he serves, see 5 U.S.C. app., Inspector General
(“IG”) Act § 3(a) (2000 & Supp. III 2003), the Chairperson of the PCIE/ECIE may
disseminate such a report to the head of the agency employing the subject for
possible adverse action. Exec. Order No. 12993, § 4(d). The agency head must
then certify to the Chairperson that he has personally reviewed the report and
indicate what action (if any) has been taken and what further action is being
considered. Id.
You have informed us that the Integrity Committee received allegations regard-
ing a sitting Inspector General and initiated the procedures contemplated by
Executive Order 12993. Because the Committee has jurisdiction over only non-
criminal allegations, the Committee, following its written procedures, first referred
the allegations to the Public Integrity Section of the Department of Justice’s
Criminal Division. The Public Integrity Section declined to pursue a criminal
investigation and returned the matter to the Committee. 3 The Committee then
determined that there was a “substantial likelihood that the allegations disclose a
gross waste of funds or abuse of authority.” Referral Letter at 3. Based on that
determination, the Integrity Committee referred the matter for investigation by the
Inspector General of another agency. Letter for Steven G. Bradbury, Acting
Assistant Attorney General, Office of Legal Counsel, from Chris Swecker,
Chairman, Integrity Committee, President’s Council on Integrity & Efficiency at 1
(Dec. 19, 2005). 4
3
The Integrity Committee’s written procedures establish this initial referral procedure in order to
sort criminal allegations from the non-criminal matters over which the Committee has jurisdiction. See
Policy and Procedures at 6–7. If the Department of Justice declines prosecution, the Committee makes
a determination regarding whether further investigation is warranted pursuant to section 2(c) of the
Order. See id.
4
A few weeks after being notified that the Integrity Committee had referred the allegations to
another agency’s IG, the subject of the investigation formally requested that the Integrity Committee
refer the matter to a different agency’s IG for investigation. The Committee granted that request shortly
after the subject of the investigation left office. E-mail for John P. Elwood, Deputy Assistant Attorney
General, Office of Legal Counsel, from William Corcoran, Public Integrity Section, Criminal Division
(Apr. 17, 2006).
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Jurisdiction of Integrity Committee When IG Leaves Office After Referral
Nearly three months after the Committee made its “substantial likelihood”
determination and referred the matter for investigation, the Inspector General
whose conduct is at issue left office. See E-mail for John P. Elwood, Deputy
Assistant Attorney General, Office of Legal Counsel, from William Corcoran,
Public Integrity Section, Criminal Division (Mar. 21, 2006) (“Corcoran E-mail”).
The Committee has asked this Office for an opinion on whether it may continue to
pursue administrative allegations against the former Inspector General based on
allegations of wrongdoing that allegedly occurred (and that the Committee
received) while the subject of the investigation was in office. 5 Referral Letter at 3.
II.
The Constitution vests the President with “[t]he executive Power” of the United
States, U.S. Const. art. II, § 1, and enjoins him to “take Care that the Laws be
faithfully executed.” Id. § 3. To assist the President in the discharge of his duties,
the Constitution authorizes the President to “nominate, and by and with the Advice
and Consent of the Senate, [to] appoint . . . Officers of the United States,” and
authorizes the President, acting alone, to appoint “such inferior Officers,” as
Congress specifies. Id. § 2. Although the Constitution is silent about the Presi-
dent’s authority to remove those whom he has appointed, the Supreme Court has
held that ordinarily, “the power of appointment carrie[s] with it the power of
removal.” Myers v. United States, 272 U.S. 52, 119 (1926); see also id. at 164(noting President’s “general administrative control of those executing the laws”);
Morrison v. Olson, 487 U.S. 654, 692 (1988) (explaining that the President, at
least to some degree, must be able “to control or supervise” Executive Branch
personnel in order to discharge his constitutional duty to take care that the laws are
faithfully executed). “The reason for the principle is that those in charge of and
responsible for administering functions of government who select their executive
subordinates need in meeting their responsibility to have the power to remove
those whom they appoint.” Myers, 272 U.S. at 119. As the Court has explained,
“when the grant of the executive power is enforced by the express mandate to take
care that the laws be faithfully executed, it emphasizes the necessity for including
within the executive power as conferred the exclusive power of removal.” Id. at
122.
By the same token, the Constitution gives the President the “inherent authority
to supervise and direct the performance of his appointees in office, and to investi-
gate allegations of possible misconduct related to that performance.” Procedures
for Investigating Allegations Concerning Senior Administration Officials, 6 Op.
5
This memorandum does not address whether the Integrity Committee would have authority to act
when an IG leaves office before the Committee receives any allegations about that person’s conduct in
office.
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O.L.C. 626, 628 (1982) (“Senior Administration Officials”). Even in the absence
of any congressional authorization, therefore, the President may investigate
allegations of misconduct and other lesser forms of inefficiency or infidelity by
Executive Branch officers and employees. See Memorandum for the Attorney
General, from Daniel L. Koffsky, Acting Assistant Attorney General, Office of
Legal Counsel, Re: Statutory Authority of the Federal Bureau of Investigation to
Undertake Non-Criminal Investigations of the Inspectors General at 3 (May 26,
1993) (“Koffsky Memorandum”). Because “each Inspector General ultimately is
responsible to the President” and “each is subject to removal by the President,” id.at 4 (citing 5 U.S.C. app., IG Act § 3(b)), “the President may take the actions
necessary to investigate allegations of non-criminal misconduct by Inspectors
General as an incident of his authority as head of the Executive Branch.” Id.
The President’s authority to “oversee the performance of . . . appointees in
office”—and specifically, the authority to investigate them—may be delegated.
Senior Administration Officials, 6 Op. O.L.C. at 631 & n.13. See generally Memo-
randum from Office of Legal Counsel, Re: President’s Authority to Delegate
Functions at 3 (Jan. 24, 1980) (concluding that the President generally has the
inherent authority to delegate the performance of functions vested in him to the
extent “reasonably necessary in executing the express powers granted to him under
the Constitution and Laws of the United States for the proper and efficient
administration of the executive branch of the government”). Executive Order
12993 delegates to the Integrity Committee part of the President’s inherent
authority, the power to receive and investigate allegations of non-criminal
wrongdoing by Inspectors General (and, under certain circumstances, OIG staff
members). While the authority to investigate Executive Branch officials presuma-
bly can be created or supplemented by statute, see generally Morrison v. Olson,
487 U.S. at 695–96, we are aware of no statute investing the Integrity Committee
with such authority. 6 Rather, the Integrity Committee’s investigative power is
6
The Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1001 (codified at 5 U.S.C. app.
(2000 & Supp. III 2003)) (“IG Act”), does not vest the Integrity Committee with authority to conduct
investigations; indeed, Inspectors General and OIG personnel have only limited statutory authority to
investigate allegations outside their agencies on a detail basis. We noted in our 1982 opinion that “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.” Senior Administration
Officials, 6 Op. O.L.C. at 629. See generally 5 U.S.C. app., IG Act § 4(a). We explained that “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.” 6
Op. O.L.C. at 629. Thus, we concluded that “[t]here is no authority under the Inspector General Act, or
under any appropriations act of which we are aware, for an Assistant Inspector General for Investiga-
tions, or any member of an Inspector General’s staff, to conduct investigations which do not ‘relate to’
the ‘programs and operations’ of the agency in which he is employed.” Id. at 629 n.9. We noted,
however, that personnel in one agency’s Office of Inspector General “might lawfully be directed by his
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entirely a product of Executive Order 12993. It therefore has only such authority
to investigate that is granted by that order. See Senior Administration Officials, 6
Op. O.L.C. at 628–29.
Soon after the creation of the President’s Council on Integrity and Efficiency,
this Office made clear that (in the absence of a legislative enactment) a presiden-
tial delegation was the exclusive potential source of authority to investigate
Inspectors General and OIG staff members. See id. at 628–30. In 1982, this Office
evaluated a PCIE proposal to have “non-criminal allegations” of wrongdoing by
Inspectors General referred to the PCIE for initial consideration and potential
investigation. Id. at 627. We concluded that, while one provision of the executive
order creating the PCIE “might be interpreted to authorize the Council to develop
procedures to investigate misconduct by Inspectors General,” id. at 629 n.7, that
order had not provided to the PCIE any explicit authority to coordinate or to
conduct investigations of Inspectors General. See Exec. Order No. 12301 (author-
izing the PCIE to develop policy proposals for streamlining government and
eliminating waste, but not mentioning the power to investigate). We could not
“construe [the order] . . . to bestow authority on the Council actually to conduct
such investigations,” because “[s]uch a delegation of substantive presidential
authority to an agency not otherwise authorized to engage in such activities would,
in our view, have to be explicit.” 6 Op. O.L.C. at 629 n.7 (emphasis added).
Because the executive order was not explicit, we concluded that it “does not
accomplish such a delegation.” Id. at 628–29. Since then, the President explicitly
delegated some investigatory authority to the Committee in Executive Order
12993, and so it is no longer the case that the Committee is “not otherwise
authorized to engage in such activities.” Id. at 629 n.7.
The sole mechanism that Executive Order 12993 provides for the Integrity
Committee to obtain jurisdiction over allegations is through the referral of those
allegations to the Committee under section 2 of that order. It states:
The Integrity Committee shall review all allegations of wrongdoing
it receives against an IG who is a member of the PCIE or ECIE or
against a staff member of an OIG acting with the knowledge of the
IG or when the allegation against the staff person is related to an al-
own agency to investigate . . . allegations against another Inspector General on a detail basis.” Id. at
629–30 & nn. 10–11.
Nor does the FBI have statutory authority to conduct investigations of administrative allegations.
We concluded in a 1993 opinion that 28 U.S.C. § 533, which authorizes the Attorney General to direct
the FBI to “conduct such other investigations regarding official matters under the control of the
Department of Justice . . . as may be directed by the Attorney General,” did not permit him “to direct
the FBI to conduct investigations of non-criminal misconduct by the Inspectors General.” Koffsky
Memorandum at 1. We noted, however, that “the President may direct the FBI to undertake investiga-
tions into non-criminal allegations against the Inspectors General.” Id. at 5.
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legation against the IG, except that where an allegation concerns a
member of the Integrity Committee, that member shall recuse him-
self from consideration of the matter.
Exec. Order No. 12993, § 2(a).
The language of section 2(a) does not itself clearly indicate whether, for the
Integrity Committee to have jurisdiction, the IG must be a member of the PCIE or
ECIE only at the time allegations are received or whether the IG must still be
serving at some later point when the allegations are reviewed for the Integrity
Committee to exercise jurisdiction over allegations. Other language in section 2 is
more illuminating. Section 2(c) states that “[t]he Integrity Committee shall
determine if there is a substantial likelihood that the allegation, referred to it under
paragraph[] (a) . . . of this section, discloses a violation of any law” or other
misconduct or abuse “and shall refer the allegation to the agency of the executive
branch with appropriate jurisdiction over the matter.” (Emphases added.) Allega-
tions that the Integrity Committee receives against a then-sitting IG are properly
understood to be “referred to” it when they are received. See The American
Heritage College Dictionary 1146–47 (3d ed. 1997) (“refer” means, among other
things, “[t]o submit (a matter in dispute) to an authority for arbitration, decision, or
examination”); Webster’s Third New International Dictionary 1907 (1993) (“to
send or direct for treatment, aid, information, decision”). The mandatory language
of section 2(c) indicates that the Integrity Committee’s obligation to make a
determination of probable merit—and to refer potentially meritorious allegations
for investigation—arises when an allegation against a then-sitting IG is “referred
to it under paragraph[] (a).” The unqualified, expansive, and mandatory language
of the first half of section 2(a) (“shall review all allegations of wrongdoing it
receives”), together with the language of section 2(c), thus indicates that the
relevant decision point is the time of receipt. Executive Order 12993 is thus most
naturally read to permit the Integrity Committee to retain jurisdiction over
allegations against an IG who is a member of the PCIE or ECIE at the time of the
allegations’ receipt, even if he leaves office soon afterwards. In addition, sections
2(c) and 2(d) explicitly establish a mechanism for disposing of allegations that the
Integrity Committee determines not to be “potentially meritorious”; the failure
explicitly to provide for disposing of allegations involving a subject who is no
longer a member of the PCIE or ECIE could reasonably be interpreted as an
indication that the Integrity Committee is obligated to assess the likely merits of
all allegations that it properly receives under section 2(a).
There is also another basis for concluding that the Integrity Committee retains
jurisdiction in this matter. We understand that the Inspector General who is the
subject of the Committee’s pending investigation remained a member of the PCIE
for nearly three months after the Committee made its determination that the
allegations against him likely had merit under section 2(c) of the order and
referred them for investigation. See Corcoran E-mail. The order provides without
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Jurisdiction of Integrity Committee When IG Leaves Office After Referral
qualification that if the Integrity Committee determines there is a “substantial
likelihood that the allegation” has merit, it “shall refer the allegation to the agency
of the executive branch with appropriate jurisdiction over the matter.” Exec. Order
No. 12993, § 2(c) (emphasis added). Thus, under the mandatory language of the
order, once the Integrity Committee determined that there was a “substantial
likelihood that the allegation[s]” against the then-sitting member of the PCIE had
merit, the Committee was authorized—indeed, obligated—to refer the allegations
for investigation. The remaining terms of the delegation likewise speak in
mandatory and unqualified terms, directing specific actions with respect to any
allegations the Committee has referred for investigation. See, e.g., id. § 4(a) (“The
report containing the results of the investigation conducted under the supervision
of the Chair of the Integrity Committee shall be provided to the members of the
Integrity Committee for consideration.”), id. § 4(b) (“the head of an agency”
receiving allegations for investigation “shall provide a report to the Integrity
Committee”), id. § 4(c) (“The Integrity Committee shall assess the report received
under [section 4](a) or (b) . . . and determine whether the results require forward-
ing of the report, with Integrity Committee recommendations, to the Chairperson
of the PCIE/ECIE for resolution.”), id. § 4(e) (“The Chairperson of the PCIE/ECIE
shall report to the Integrity Committee the final disposition of the matter.”). The
language of the order does not suggest that a potentially meritorious allegation
would not be investigated because the subject of the allegation departs after the
Committee has made its determination of likely merit and referred the matter for
investigation. Accordingly, we conclude that an Inspector General’s departure
after a determination of likely merit and referral under section 2(c) does not divest
the Committee of authority over pending allegations. 7
Some provisions of Executive Order 12993 might be read to suggest that, even
if the Integrity Committee properly received allegations against an Inspector
General then serving on the PCIE, it loses the authority to initiate an investigation
upon the subject’s departure from that post. For example, section 1(a) of the order
provides that “the Integrity Committee shall receive, review, and refer for
investigation allegations of wrongdoing against IGs”; section 3(a) likewise
provides that the Chairperson of the Integrity Committee “is authorized and
directed to consider and, where appropriate, to investigate administrative allega-
7
Although it presents a closer question, for similar reasons, we believe that the Integrity Committee
would have authority to receive new allegations after an Inspector General has left office, if those
allegations are related to matters that the Committee already had properly received under section 2(a),
or if they are related to allegations for which there already has been a determination of probable merit
under section 2(c). Executive Order 12993 contemplates that an investigation will be conducted of
potentially meritorious allegations the Committee has properly received. Id. §§ 1(a), 2(b)(2), 2(c). The
order appears to contemplate that any such investigation will be “thorough and timely.” Id. § 2(c). It is
reasonable to conclude that a “thorough” investigation would consider new allegations related to the
original referral that came to the attention of investigators during the course of their inquiry.
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tions against the IGs,” and the term “the IGs” might be read to include only
current Inspectors General. However, the term “IGs,” when not used in conjunc-
tion with language suggesting the term applies only to incumbents, easily could be
read to include a person who was being investigated for actions taken while
serving as Inspector General, even if he had since left that post. See, e.g., Robinson
v. Shell Oil Co., 519 U.S. 337, 341–45 (1997) (concluding that term “employees”
in 42 U.S.C. § 2000e-3(a) includes former employees); Duckworth v. Pratt &
Whitney, Inc., 152 F.3d 1, 6 (1st Cir. 1998) (holding that agency reasonably
concluded that term “employees” in Family and Medical Leave Act includes
former employees; “absent an express ‘temporal qualifier,’ such as ‘current,’
Congress’ use of the word ‘employees’ does not inherently exclude former and
prospective employees”) (internal citation omitted); Passer v. Am. Chem. Soc’y,
935 F.2d 322, 330–31 (D.C. Cir. 1991) (holding that term “employees” in Age
Discrimination in Employment Act includes former employees). Although we do
not give this factor determinative weight, the conclusion that the Integrity
Committee could continue to oversee an investigation after receipt of allegations
(and after a determination of probable merit) is consistent with the stated purposes
of Executive Order 12993, which include “to ensure that administrative allegations
against IGs . . . are appropriately and expeditiously investigated and resolved.” Id.pmbl. If the Committee were required to relinquish jurisdiction over a matter even
after the Committee had “review[ed]” the allegations, id. § 2(a), and “deter-
mine[d]” that that there is a substantial likelihood that they have merit, id. § 2(c),
the subject of an investigation could both potentially delay the investigation and
affect the choice of investigating authority through the timing of his resignation.
Unnecessary cost and delays could result if another investigative authority were
required to begin the investigation anew after substantial progress already had
been made under the auspices of the Integrity Committee. Although, as noted
below, conflict of interest concerns may be obviated by the Inspector General’s
departure, under such circumstances, interests in efficiency would counsel in favor
of the Committee’s retaining jurisdiction over the matter until its conclusion.
Other provisions of Executive Order 12993 also might be read to permit the
Committee to exercise jurisdiction only over investigations involving sitting IGs.
Section 4(d) provides for an agency head to supply certain information “[w]here
the Chairperson of the PCIE/ECIE determines that dissemination of the report to
the head of the subject’s employing agency or entity is appropriate.” Section 4(e)
provides that “[t]he Chairperson of the PCIE/ECIE shall report to the Integrity
Committee the final disposition of the matter, including what action, if any, has
been or is to be taken by the head of the subject’s employing agency or entity.”
One might argue that the references to “the head of the subject’s employing
agency or entity” suggest that the order contemplates that the subject of the
investigation would still be serving in the government. We do not believe those
provisions provide sufficient basis for limiting the scope of the Committee’s
authority to persons still serving as Inspectors General. Neither of those two
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provisions purports to apply in every case; one simply provides for dissemination
of a report to the head of the subject’s employing agency if doing so “is appropri-
ate,” and the other simply requires a report of what action “if any” has been or is
to be taken by the head of that agency. Thus, neither provision suggests that in all
instances the person being investigated must still be employed by a government
agency for the investigation to go forward.
While the departure of an Inspector General after allegations are referred does
not affect the authority of the Integrity Committee to oversee the investigation, it
very well may affect decisions that the Committee makes with respect to the
investigation. For example, if the Committee determines “there is a substantial
likelihood that” an allegation it has received has merit, it is required to “refer the
allegation to the agency of the executive branch with appropriate jurisdiction over
the matter.” Exec. Order No. 12993, § 2(c). The Inspector General’s office where
the subject served may have been disqualified from being the “appropriate
jurisdiction” to receive the investigation while the subject was in office. The
departure of the Inspector General who is the subject of the investigation may well
remove that disability so that “the agency of the executive branch with appropriate
jurisdiction over the matter,” id., is the agency where the subject previously served
as Inspector General. Which agency or agencies may have “appropriate jurisdic-
tion” over the current investigation is not a question presented by your request,
however, and so we do not resolve the issue here.
III.
For the reasons discussed above, we conclude that under Executive Order
12993, the Integrity Committee has authority to pursue allegations that it receives
against an incumbent Inspector General, even if the subject of the investigation
then leaves office.
JOHN P. ELWOOD
Deputy Assistant Attorney General
Office of Legal Counsel
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