October 11, 2017

GAO Critiques DOD OIG Process for Investigating Whistleblower Retaliation

By the C|C Whistleblower Lawyer Team

The U.S. Government Accountability Office (GAO) released a report yesterday criticizing the Department of Defense Office of the Inspector General’s (DOD OIG) process for investigating whistleblower-retaliation complaints brought by DOD civilian and contractor employees.  The GAO report found that DOD OIG routinely missed timeliness targets and often failed to follow its own internal processes for ensuring the independence and thoroughness of its investigations.

The report was published at the request of several members of Congress from both parties, including Senators Chuck Grassley, Claire McCaskill, Kirsten Gillibrand, and Mark Warner, as well as Congressmen Trey Gowdy and Elijah Cummings.  To conduct the study, GAO analyzed data on DOD OIG’s cases from 2013 to 2015, reviewed a random sample of 178 investigations closed by DOD OIG in 2015, and conducted interviews with relevant officials.

GAO found that DOD OIG failed to meet its statutory and internal timeliness goals in over 83% of its investigations between 2013 and 2015.  For example, DOD OIG’s timeliness goal for complaints made by contractor and subcontractor employees is 180 days, yet DOD OIG took, on average, 285 days to conduct these investigations in fiscal year 2015.

GAO also identified deficiencies in DOD OIG’s processes for protecting the integrity of its investigations.  Approximately 29% of the DOD OIG staff members interviewed by GAO “reported observing acts they perceived to demonstrate bias on the part of one or more whistleblower reprisal unit staff or management.”   GAO found that DOD OIG could not adequately monitor its internal recusal processes—designed to eliminate bias from its investigations—because it failed to document recusals and conflicts of interests.

Finally, GAO found that DOD OIG dismissed numerous nondiscretionary cases before conducting its formal intake process because of a perceived lack of retaliation, even though this was not a valid justification for pre-intake declination.  OIG noted that conducting the full intake process, including interviewing the complainant, could have produced additional evidence of retaliation.

GAO made numerous recommendations to address its findings, including additional data collection, regular reports to Congress, documentation of recusals, and a more definitive declination policy for nondiscretionary cases.  DOD OIG concurred with all of GAO’s recommendations and has outlined the steps it plans to take to implement them.

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