Analysis: Who will inspect the inspectors?

Thursday - 5/27/2010, 10:31am EDT

Debra Roth, partner, Shaw Bransford & Roth

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By Suzanne Kubota
Senior Internet Editor
FederalNewsRadio.com

In the wake of the BP oil spill in the Gulf, concerns about the relationship between the Interior Department's Minerals Management Service (MMS) and the oil industry have been raised.

The ease with which federal inspectors move between industry and government is a concern.

Two reports from Interior's Inspector General, said attorney Debra Roth, a partner with Shaw Bransford & Roth, found that those who regulate and those who are being regulated weren't always at arm's length. Roth said the most recent report, released this week, was very similar to one released in 2008.

"It's very much the same thing. It's not arm's length any more. It's fraternizing. It's exchanges of gifts and trips. The federal government has very explicit rules prohibiting this, both regulation and federal statutes, and indeed, criminal laws."

Roth said the findings were referred to the US Attorney's office which declined to bring charges. When you read the IG report, said Roth, "amounts of dollars in gifts that were exchanged doesn't appear to go into the multiple thousands. Usually it's ten thousand or more, you can get the interest of the US Attorney's office."

But just because what went on wasn't enough to prosecute doesn't mean it was acceptable or ethical, said Roth.

It was lunches and meals and skeet shooting and trips to football games and hunting but really what it was was fraternizing. And the government can't control who you socialize with directly, so they try to do it indirectly. And by indirectly, they try to manage what can be exchanged personally between the two individuals, so there's no gift giving, or it's very limited along with meals. It's the fraternizing that gives the appearance that it's just not arm's length.

Six of 13 federal employees quit during course of the investigation. "What didn't happen is they didn't get prosecuted," said Roth, but those who remain probably will face "some sort of disciplinary action up to removal, but what you also get from the report... is that it's very likely they're going to go right back into industry." Specifically, she expects them to land back in the companies that they oversaw.

"You kind of feel like, probably because of what's going on in the Gulf, you feel like there should be criminal consequences here and you just can't tell the level of criminality."

Roth told Federal News Radio what she believes is really behind the outrage being expressed in Congress: "in most parts of the transactions between the government and the private sector, people go through the door. The question is who's watching the door."

All of the conduct noted in the IG reports occurred before '08, said Roth.

It occurred in the prior administration over a vast period of time, and that was an administration that was known, it was widely known, they were de-regulating. So it's really, I think, less about individualized conduct and changing the door. Congress really felt like it's got the amount of time, the distance between when you can slip back and forth, right? It's sort of been out there for decades. It's more a question of who has been guarding the door.

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