Educational Conferences
AALJ Response to OIG Audit
Here is the response we have prepared to the Audit Report of the Office of the Inspector General for SSA on the Association of Administrative Law Judges' Training Conference Costs.
As we state in our response, the IG Audit Report did not present a complete statement of the facts. The IG failed to emphasize that non-management judges paid for their travel costs, hotel expenses and most food expenses. The Agency has paid a reimbursement for some portion of the conference registration fee in recent years, but has not paid any reimbursement for the last conference in Providence.
The IG implies that the conference is a union event and fails to recognize that it is open to all judges and that all attendees pay the same conference fee. The IG does not state that we began the conference long before we were a union and it has always had at its core the purpose of providing legal education for our judges.
It appears to us that the purpose of the Audit Report was to provide "cover" for the Agency's predetermined action to withdraw support from the conference.
RESPONSE TO AUDIT REPORT
OFFICE OF THE INSPECTOR GENERAL
SOCIAL SECURITY ADMINISTRATION
"ASSOCIATION OF ADMINISTRATIVE LAW JUDGES'
TRAINING CONFERENCE COSTS"
April 2008 - A-12-08-28037
April 21, 2008
This statement is in response to the Social Security Administration's (SSA) Office of Inspector General's Audit Report (April 2008 A-12-08-28037) of the Association of Administrative Law Judges' Training Conference Costs.
The methodology used, the facts reported, and the conclusions drawn all call into question the independence and objectivity of the Audit Report. It appears that the decision to sever the Agency's support for the AALJ Educational Conference, motivated by union animus, was reached first and the report then crafted to support this decision.
The IG Audit Report presents the impression that SSA has been contributing to the AALJ annual conference, at its current level, since its inception. This is erroneous. Instead, SSA's participation developed slowly over a period of years. The annual conference was started by the AALJ in the early 1990's. At that time the AALJ was a professional association. The first conference was held in 1992 at the National Judicial College in Reno, Nevada. The SSA made no contribution to the conference, other than providing "duty time" for the attendees. The National Judicial College charged a conference fee and provided all administrative support for the event. The conference was attended by the Associate Commissioner of the Office of Hearings and Appeals (formerly OHA now ODAR) and the SSA Chief Judge. After the first conference, the AALJ took over the conference administration and continued the conference fee established by the National Judicial College. We determined that we could provide our judges with more benefits and services for the same fee as that charged by the National Judicial College. After the first conference, SSA started to increase its participation by first sending Agency presenters, such as doctors, to participate in the training with the Agency paying for travel and per diem expenses.
At a later date, SSA started to reimburse the attendees for the conference fee. At first, the reimbursement was modest, consisting of about $50.00 for each attendee. The amount of the conference fee reimbursement grew slowly, until about 5 years ago when it advanced to reimbursement for the full conference fee. The non-management Judges have always paid for their total travel costs, hotel expenses and food costs. The Agency has provided "duty time" for the attendees from the beginning. Based on the quality of the education provided at the conference, the AALJ has become a continuing legal education (CLE) provider. It has taken much effort to achieve this status. This benefit is of considerable importance to our Judges as recent Office of Personnel Management (OPM) rule changes require active bar membership and many local and state bar associations require ongoing CLE training. The major reasons for starting the AALJ conference were to provide an annual meeting for our Judges and to provide legal education because of the lack of any meaningful agency training.
The flaws in the Audit Report include the following:
- The Audit states that "SSA paid for the entire cost of the last three conferences". Nothing is further from the truth. Most of the costs for attendance at the conference were paid by the participants themselves - a fact which is noticeably absent from this report. While SSA paid for travel, lodging and per diem for headquarters' management personnel and staff, hearing office chief administrative law judges (HOCALJs), and regional chief administrative law judges (RCALJs), none of whom are bargaining unit members, it paid not one cent of these costs for non-management judges. The line judges at SSA are the only federal employees that we are aware of who pay their own costs for training of this nature, as the Agency provides little by way of such education. The Audit Report states that the agency prefers "greater attendance rotation". This statement completely ignores the fact that the AALJ has for many years encouraged the agency to pay for the total conference costs for 1/3 of the non-management judges, as it now does for its management judges. The agency refused to engage in this discussion and never expressed any desire for greater judge participation or "attendance rotation".
- The figure of $354,800 for financial and in-kind conference support for the 2006 conference is grossly misleading. Much of that amount was not for conference support but rather travel, lodging, and per diem expenses for managers and supervisors to attend the conference. Some of the direct costs listed in the Audit and the reimbursement for registration fees, together with some limited in-kind contributions, were the only significant contributions made by the Agency toward the conference. The Audit Report states that SSA "provided approximately $888,900 in financial and in-kind support to the AALJ to conduct four training conferences during CYs 2003 to 2006". This is a misleading and inaccurate statement. The records of both the Agency and the AALJ clearly show that the Agency made the payments for conference funding directly to third parties under the government voucher system. The third party payments were made to presenters, vendors, non-management Judges for conference fee reimbursement and to management Judges/personnel for travel, per diem and conference fee reimbursement. The only money that the Agency paid directly to the AALJ was for a very small number of management Judges who failed to pay their conference fees to the AALJ. The money the AALJ collected was from the Judges for the conference fees.
- The cost of the meeting rooms was subsidized by the attendees through their lodging costs, a fact which is buried in a footnote. This conference cost, which amounts to thousands of dollars, has not been computed or attributed to the overall conference costs.
- The Report insinuates that there is something illegal or untoward in paying for non-management ALJs to attend an educational conference "where union business could be discussed in the evening and before/after the conference could be seen as support for the union." SSA's fears in this regard amount to anti-union bias, since the conference is an educational activity and is completely divorced from any union business. The conference is open to all attendees, union and non-union judges alike. All are charged the same registration fee. To suggest that government employees, on their own time, cannot discuss union concerns is to reveal deep-seated animus towards labor organizations. The Federal Service Labor Management Relations Statute, which permits such union activity, is the law of the land. This event is not strictly a union activity, but is instead an education conference for administrative law judges. As noted above, the conference preceded the unionization of the Association by almost a decade and has been organized and paid for in the same manner during this entire time. Further, the Audit Report fails to raise concern with management business conducted during conference time, and it does not subtract funds devoted to management business from the conference costs.
- The Audit Report finds that the money expended on recording the conference was of questionable value, basing its conclusion on the Agency's admitted failure to track use of the tapes and CDs. What is missing from this report is the fact that it was the AALJ that requested the Agency to stop recording the conference in 2007 as a cost saving measure. The Agency had proven itself unable to edit the recordings and get them into the hands of the judges within a reasonable time frame. The AALJ never had a hand in creating any of these costs and objects to their inclusion as an Agency "contribution" in the conference cost.
- The Audit Report states that SSA's contributions have left the AALJ with "residual funds that could be applied to other union programs." Again, this is a misleading assertion. All funds generated by the conference have been, and continue to be, held in a separate conference account and have never been used for anything other than conference-related expenses. The Audit conveniently ignores the fact that the AALJ must contract with hotels and other vendors years in advance and subject itself to potential liability of hundreds of thousands of dollars if a conference is cancelled or not enough participants show up to meet the lodging and meal expense minimums in the contract. In fact, the San Francisco conference lost money - $36,183. SSA does not obligate itself to cover any shortfall. That some conferences will generate a surplus which can be placed into a conference account to cover those occasions when a conference runs a deficit is fiscally prudent. The AALJ had to sign a contract last year that included lodging and meal minimums for the August 2008 Portland conference. It now learns that it will be obligated to fund this conference without any contribution from SSA. Surplus funds from prior conferences will have to be used to do so.
- The Audit Report makes much of the very modest banquet and reception expenses that were part of the conference fee, contending that, as these events were outside of the normal workday, they should not have been reimbursed. This is nonsense. First, these expenses were not fully reimbursed in 2005, as SSA did not reimburse attendees for the total cost of the registration fee. Second, a review of the conference program shows that attendees were in class from 8:00 a.m. to 4:30 or 5:00 p.m. daily; the only time that attendees had to discuss issues and concerns with their colleagues (or management officials) was after hours. The reception and banquet provided the setting for these discussions. Finally, the conference registration fee was reimbursed to the non-management ALJs, who had paid for their own travel, lodging and other meals, which amounted to a $1,000 to $2,000 outlay. That they were reimbursed for the banquet and reception through the registration fee hardly makes a dent in the money that they had to expend to attend the conference.
- While the Audit Report cites thousands of dollars of "indirect" Agency contributions, the AALJ questions the accuracy of these figures. There is no supporting documentation showing how these figures were compiled or computed, nor is there any explanation as to what they encompass. Some of these costs are clearly unrelated to any actual contribution to the conference. For instance, this figure includes the cost of booths and personnel to staff them. The Agency requested that these booths be set up outside of the meeting rooms in order for the Agency to display its new electronic programs. The AALJ did not request these booths and they cannot be construed to be conference support. With regard to training material assembly, it should be noted that an AALJ member compiled the conference book last year, sent it to the Agency for printing, and then had to re-do the template because the Agency printed the pages out of order. We question the amounts stated for planning and development; no identification of the individuals involved is set forth in this document.
- Travel expenses for speakers make up most of the "Direct Costs" expenditures, which is the largest category of the Agency's conference contribution. SSA headquarters personnel and non-ODAR staff represents the bulk of these costs. These speakers have an opportunity to directly address the conference attendees and advocate for Agency concerns, while most of the attendees (except for management personnel) have paid their own conference expenses to sit and listen to these presenters.
- The Audit Report states, "In at least one case, SSA did not agree with the selection of the speaker and refused to pay the costs of travel and honoraria for the speaker." There were actually two speakers involved: Professor Gregory Ogden, an ethics professor from Pepperdine University, and Judge Richard Goodwin, a Department of Transportation ALJ, who had worked with Professor Ogden on the presentation. These two speakers had made an outstanding presentation at the 2006 conference and many had requested that they return to address the group. The Agency wanted its own bureaucrats to speak and refused to pay expenses for Professor Ogden and Judge Goodwin; as it turned out, Professor Ogden had to cancel at the last minute because of family illness. The Agency is always free to have its own staff address the ALJ Corps by IVT at any time it wants. The conference, by contrast, provides the Judges with an opportunity to hear from experts and to elevate the discourse regarding the issues we face. It is more appropriate to hear from expert outside speakers when possible at the conference.
- The Audit Report finds that, given the level of support provided by SSA, it could run the entire conference in-house and have greater control over it. No figures support this contention. In fact, the Agency has run some conferences in-house, namely a HOCALJ conference in Pittsburgh and a Region 9 ALJ conference. We believe that the costs involved in these conferences far exceed the costs that SSA has allocated for the AALJ educational conference. AALJ requests that these Agency conferences be audited to determine the Agency's costs and its effectiveness in providing training.
- Completely absent from the IG report is any discussion of the educational value of the conference. The AALJ solicits evaluations from the participants each year and prepares a comprehensive Conference Evaluation Report based on this feedback. Although the IG received these reports for the past three conferences, no mention of them appears in the IG report. A representative sampling from one report is illuminating:
- I was at the DOJ (Department of Justice) for years and this conference was run much better than any of theirs." "Dr. G was, without question, the best teacher of this subject [cervical spine impairments] to lay people that I have ever heard." Referring to Dr. O, who presented on the lumbar spine, an attendee commented "He was fabulous! Very informative and useful! Bring him back!" Many others expressed similar sentiments for the doctors. One commented "Wonderful" when describing the eDib breakout session. "Very thorough, excellent" described the VE testimony presentation. On the DA&A breakout session, one commented "Clone Dr. G! I learned more in 45 minutes about a problem that has really troubled me than in years of talking to other ALJs and medical experts! Worth the price of the conference." Other sessions received similar praise. Many remarked that more time could have been devoted to each of the subjects presented.
- Finally, the AALJ was under no obligation to open its books and submit to this audit as the OIG has no authority over the AALJ. Yet, the AALJ cooperated fully, at great expense (almost $5,000), in the audit. The AALJ sent three of its officers to meet with the IG, at its own expense, after the IG indicated that it did not have funds to pay for AALJ travel. Our books were opened to scrutiny and our CPA was paid to meet with the IG. Despite this unprecedented level of cooperation, the AALJ did not have an opportunity to comment on the draft report to correct misstatements and explain positions, as the Agency did.
The AALJ conference was once described by a former OHA Associate Commissioner "as one of the most important events of our Agency". After considerable effort, the AALJ has been successful in having the education provided at the conference accepted as meeting the requirements of CLE training. As noted above, this is of considerable value to ALJs because recent changes in OPM rules require active local bar membership by Judges, and many of the local bar associations require CLE training. The SSA is not a CLE provider and the IG Audit Report did not state that the Agency intended to provide this needed education for its Judges.
Ronald G. Bernoski
President
Association of Administrative Law Judges
