Summary

Department of Justice: It Continues to Use the Improvements It Made to the California Witness Protection Program December 2001 2001-013 rotiduA etatS ainrofilaC S T I D U A E T A T S F O U A E R U B The first five copies of each California State Auditor report are free. Additional copies are $3 each, payable by check or money order. You can obtain reports by contacting the Bureau of State Audits at the following address: California State Auditor Bureau of State Audits 555 Capitol Mall, Suite 300 Sacramento, California 95814 (916) 445-0255 or TDD (916) 445-0255 x 216 OR This report may also be available on the World Wide Web http://www.bsa.ca.gov/bsa/ The California State Auditor is pleased to announce the availability of an online subscription service. For information on how to subscribe, please visit our Web site at www.bsa.ca.gov/bsa. If you need additional information, please contact David Madrigal at (916) 445-0255, ext. 201. Alternate format reports available upon request. Permission is granted to reproduce reports. C S A ALIFORNIA TATE UDITOR ELAINE M. HOWLE STEVEN M. HENDRICKSON STATE AUDITOR CHIEF DEPUTY STATE AUDITOR December 21, 2001 2001-013 The Governor of California President pro Tempore of the Senate Speaker of the Assembly State Capitol Sacramento, California 95814 Dear Governor and Legislative Leaders: As required by the 2001-02 Budget Act, the Bureau of State Audits presents its audit report concerning its evaluation of the Department of Justice’s (department) claims review process for the Witness Protection Program (program). This report follows up on our prior audit report and concludes that the department’s administration of the program continues to meet our previous recommendations. In particular, the department has a management review process for the approval of program applications and has been conducting audits of district attorneys’ offices participating in the program. Respectfully submitted, ELAINE M. HOWLE State Auditor BUREAU OF STATE AUDITS 555 Capitol Mall, Suite 300, Sacramento, California 95814 Telephone: (916) 445-0255 Fax: (916) 327-0019 www.bsa.ca.gov/bsa CONTENTS Summary 1 Introduction 3 Audit Results The Department Continues to Provide Management Oversight of the California Witness Protection Program 7 Staffing Remains Sufficient to Handle Current Program Activities 7 The Department’s Audits Help Ensure Program Compliance 8 The Department Continues to Reconcile the Program and Accounting Records 9 The Department Has Made Anticipated Changes to Its Policies and Procedures 9 The Department Continues to Inform District Attorneys’ Offices About the Program’s Availability and Requirements 10 Recommendations 10 Response to the Audit Office of the Attorney General 13 California State Auditor’s Comments on the Response From the Office of the Attorney General 17 SUMMARY RESULTS IN BRIEF I n February 1999 the Bureau of State Audits issued a report concluding that the State’s Department of Justice (depart- ment) lacked certain administrative controls over its California Witness Protection Program (CWPP). In two follow-up reports issued in November 1999 and November 2000, we reported that Audit Highlights . . . the department had begun addressing our recommendations to tighten some controls over the CWPP to prevent problems from The Department of Justice arising, especially as more witnesses came under its protection. (department) continues to Our current audit examines any additional actions the depart- use improvements it made to the California Witness ment has taken and monitors its continued implementation of Protection Program (CWPP) our recommendations. as a result of our previous recommendations. These Through the CWPP, district attorneys’ offices can encourage key improvements include: witnesses to testify in state criminal justice proceedings by (cid:1) Establishing a formal offering to shield them from intimidation by people associated review process for with criminal activity. The CWPP covers the costs the district approving program applications. attorneys incur for services such as relocating witnesses, chang- ing their identities, and providing them with food and housing. (cid:1) Ensuring that staffing is As of September 2001, district attorneys from 42 counties had sufficient to perform 420 open cases for which they could receive CWPP funding. program activities. (cid:1) Performing field audits of To ensure the accuracy of its work and the propriety of its district attorneys’ offices decisions, the CWPP has a formal review process for approving participating in the CWPP. district attorneys’ applications and reimbursement requests. A division manager must give final approval for all CWPP applications and must review each reimbursement request before payment. Until the CWPP implemented this formal review process in December 1999, one program analyst made all decisions on applications and reimbursement requests, usually without management review. The department has also seen that staffing at the CWPP generally continues to be sufficient to perform current program activities. The department also performs field audits to ensure that district attorneys’ offices are claiming only allowable costs and are using the CWPP consistently. As of August 2001 the department had completed eight audits and is currently in the process of conducting another. In addition, the CWPP has developed reconciliation procedures to help ensure that reimbursements to district attorneys’ offices are accurate and prompt. 1 Finally, the CWPP updated its policies and procedures manual in January 2000, clarifying requirements for meal receipts and housing deposits. The department has drafted additional changes to its policies and procedures manual that have not yet been finalized. Further, as anticipated in our November 2000 report, in March 2001 the department issued a policy letter to establish a $750 minimum threshold for housing deposits before it requires district attorneys to monitor and recover the deposits from witnesses. RECOMMENDATIONS The department has implemented the recommendations from our previous audit reports. To ensure that the CWPP continues to fulfill its responsibilities efficiently, we recommend the following: (cid:127) The CWPP should periodically review established program rates, such as the follow-up limit for the recovery of housing deposits, and make adjustments as needed. (cid:127) The department should continue to ensure that CWPP staffing remains adequate to process applications and reimbursements promptly. Because the department now has sufficient controls to ensure that CWPP expenditures are proper, we believe our annual audits of the CWPP are no longer needed. We recommend that the Legislature direct the department to provide us with an annual report on its operations and the status of continuing implementation of our recommendations. Further, we suggest that the Legislature direct us to investigate any areas of concern that arise from the annual report and, to ensure that the department continues to administer the program appropriately, have us perform a follow-up audit of the CWPP in five years. AGENCY COMMENTS The department has indicated it is currently addressing our recommendations, but it does not believe that the CWPP’s current staffing level is adequate to run the program efficiently. (cid:1) 2 INTRODUCTION BACKGROUND E stablished in response to district attorneys’ fears that some witnesses in the State’s criminal justice proceedings might be too afraid to testify in criminal cases, the California Witness Protection Program (CWPP) affords witnesses the protection they need to feel safe in exposing the actions of dangerous criminals. The CWPP protects not only witnesses but also their families, friends, and associates whom the witnesses’ ongoing or anticipated testimony might endanger. The California Penal Code, Title 7.5, sections 14020 through 14033, provides statutory authority for the CWPP. The State’s Department of Justice (department), under the leadership of the attorney general, is responsible for administering the CWPP. In creating the CWPP, the Legislature intended the program to augment, not supplant, witness protection programs already existing in certain counties. The CWPP allows this protection when there is credible evidence that a witness may suffer intimidation or retaliatory violence. Cases involving organized crime, gang activities, drug trafficking, or other activities posing a high degree of risk to witnesses receive priority. The department has estimated that witnesses are afraid to cooperate with prosecutors in at least 75 percent of the cases involving violent crimes committed in some gang-dominated neighborhoods. According to the Attorney General’s Office, the success rate of investigations and prosecutions by sheriff and police departments and district attorneys’ offices declines when witnesses refuse to testify. The CWPP reimburses a county district attorney’s office for the costs of armed protection, relocation, acquiring appropriate documents to establish a new identity, and moving or storing personal possessions, as well as housing and basic living expenses for a qualified witness. Basic living expenses include food, transportation, utility costs, and health care. The initial period of protection is six months. However, if the district attorney determines during the course of a trial that a witness needs protection for additional time, the CWPP can grant an extension. Services can continue up to three months after the district attorney’s office determines it no longer needs the witness to testify. 3 REQUIREMENTS FOR FUNDING UNDER THE WITNESS PROTECTION PROGRAM To receive CWPP funding, a district attorney’s office must first obtain approval from the department that a witness is eligible for the CWPP. The district attorney’s office prepares an application detailing the case, potential threats to the witness, and the witness’s background and submits it to the department for written approval. The department can also give emergency authorization by telephone. Once it has approved a case, the department prepares a CWPP agreement confirming the types and period of service, the number of people to Conditions of the Witness receive support, and the amount of assistance Agreement Form needed. The witness must also sign an agreement form documenting his or her willingness to comply The witness must agree to do the following: with certain conditions. • Testify truthfully and provide all necessary information to appropriate law enforcement officials concerning all Periodically, the district attorney’s office submits criminal proceedings. reimbursement claims to the department, listing (cid:127) Obey all laws. expenses incurred throughout the period of (cid:127) Take all necessary steps to avoid protection. However, the underlying support for detection by others during the period of these claims, such as invoices and receipts, remains at protection. the district attorney’s office to protect the witness’s (cid:127) Comply with all legal obligations and civil judgments. identity and conceal the witness’s location. (cid:127) Cooperate with all reasonable requests from officials providing the protection. (cid:127) Disclose all outstanding legal obligations, CURRENT SIZE OF THE CWPP including those concerning child custody and visitation rights. The department received yearly appropriations of (cid:127) Disclose any probation or parole approximately $3 million in fiscal years 1997–98 responsibilities. through 2001–02 for the CWPP. It reports (cid:127) Regularly inform the appropriate district increasing use of the CWPP from its inception in attorney’s office or law enforcement designee of the witness’s current address. January 1998 through September 2001. As the Failure to comply with any of these following table indicates, as of September 27, 2001, conditions can be a reason for termination the department had opened 1,082 witness from the CWPP. protection cases, an increase of 51 percent since our November 2000 report. The department has reported that it spent approximately $4 million from January 1998 through September 2001 and committed an additional $3.3 million of CWPP funds for approved cases. Program expenditures have increased 105 percent since August 2000, indicating that the district attorneys’ use of the CWPP is growing. Currently, 42 of the State’s 58 counties participate in the CWPP, up from the 40 participating counties we reported in November 2000. 4 TABLE Case Statistics for the California Witness Protection Program Total as of Total as of Percent Case Statistics 8-31-00 9-27-01 Increase Cases opened 716 1,082 51 Cases active 366 420 15 Cases closed 350 662 89 Number of witnesses 869 1,302 50 Number of family members 1,298 2,047 58 Source: California Witness Protection Program records. RESULTS OF OUR PREVIOUS THREE AUDITS In February 1999 the Bureau of State Audits issued a report titled Department of Justice: Has Taken Appropriate Steps to Implement the California Witness Protection Program, but Additional Controls Are Needed. The report concluded that the department had already adopted important measures to establish administrative controls over the CWPP that covered both program operation and witness protection. The unique nature of the CWPP, which allows the department to move quickly to help district attorneys’ offices protect witnesses, presents special procedural problems for the department in approving witness applications and monitoring expenses. However, the department lacked certain controls that could prevent problems from arising as the CWPP grew. In two subsequent reports issued in November 1999 and November 2000, we concluded that the department had taken steps to address our original recommendations as well as our subsequent recommendations for further improvements. Most recently, we reported that the CWPP had established a process for management review and approval of district attorneys’ applications and reimbursement requests. The CWPP also took steps to ensure that staffing at the CWPP was sufficient to perform current program activities, and it issued a new policies and procedures manual. Finally, the department began performing periodic field audits of allowable claims at the district attorneys’ offices. 5 SCOPE AND METHODOLOGY The 2001-02 Budget Act again requires us to audit the department’s process for reviewing claims for the CWPP to ensure that expenditures are allowable and made for witnesses who meet all criteria for program eligibility, a mandate identical to that of our three previous audits. Our current audit examines the department’s continued compliance with the recommenda- tions from our previous reports. To determine the department’s responsiveness to our recom- mendations and to assess the corrective actions it has taken, we reviewed changes made to the CWPP since our previous reports and interviewed program staff. We determined that the depart- ment continues to implement the recommendations it addressed following our November 2000 audit. We also assessed whether CWPP staff complied with the changes in policies and procedures that the department instituted and reviewed the department’s oversight of the CWPP and the adequacy of current staffing. Specifically, we reviewed the department’s process of reconciling CWPP records with those of the department’s accounting office. We determined that the department reimbursed district attorneys’ offices only after they submitted proper documentation of their claims. Further, we inquired about the CWPP’s efforts to inform district attorneys’ offices about the nature and policies of the CWPP. Finally, we reviewed the department’s audits of district attorneys’ offices to determine whether the scope and performance of the audits were adequate to ensure that the district attorneys were claiming only allowable costs and using the CWPP consistently. We concluded that the audits were adequate for these purposes and relied on their testing of expenditures. (cid:1) 6 AUDIT RESULTS THE DEPARTMENT CONTINUES TO PROVIDE MANAGEMENT OVERSIGHT OF THE CALIFORNIA WITNESS PROTECTION PROGRAM T he Department of Justice (department) has adequate management oversight of the California Witness Protec- tion Program (CWPP). In our November 1999 audit, we found that the department provided only limited management oversight of the direct administration of the CWPP. Specifically, one program analyst was responsible for approving original applications and amendments, reviewing and processing claims, and initiating reimbursements to the district attorneys’ offices. Usually, a manager was involved only when the analyst needed additional expertise or requested help to handle extenuating circumstances. Consequently, we recommended that the depart- ment establish a more formal management review process for approving CWPP applications and reimbursement requests. In December 1999 the department established and implemented such a review process. Specifically, after approving an application, the program analyst must forward it to a division manager for review and final approval. The division manager also reviews each reimbursement request before sending it to the department’s accounting office for payment. This control provides the necessary safeguard to ensure that the program analyst works accurately and makes decisions appropriately. As we did in our November 2000 audit, we found the department generally continues to use this approval system. STAFFING REMAINS SUFFICIENT TO HANDLE CURRENT PROGRAM ACTIVITIES The department increased the CWPP staffing level to meet current program demands. In our November 2000 audit report, we noted that the steps the department took to increase staffing for the CWPP had helped to reduce the full-time program analyst’s overtime, even though the caseload significantly increased. The department currently has one full-time and one part-time program analyst. The part-time analyst assists in processing applications and reimbursement claims for Los Angeles County, which has the 7 largest caseload. We also recommended in our November 2000 audit that the department continue to evaluate staffing needs as program activities increase. For our current audit, we noted how long it took the CWPP staff to process selected program applications and reimbursements and then compared those times to the program’s internal goals. We found that when both the part-time and full-time program analysts were present, they approved applications and mailed out letters confirming approval within the CWPP’s stated goal of six The average time to working days more than 90 percent of the time. Further, their process both program average processing time for reimbursements was within CWPP’s applications and informal internal goal of four to six weeks. Based on these results, reimbursements was we believe that the current staffing levels are adequate for the generally within the CWPP. However, due to turnover in the part-time position, CWPP’s goals. there was a period of approximately seven weeks during the summer of 2001 when the full-time program analyst had to conduct all CWPP business alone. During this time, she was not able to process applications consistently within the goal of six working days. Therefore, the department should reevaluate staffing needs if program activities continue to increase, especially because the program analyst currently works an average of 20 hours of overtime a month. THE DEPARTMENT’S AUDITS HELP ENSURE PROGRAM COMPLIANCE In 2000 the department began auditing the district attorneys’ offices participating in the CWPP, completing eight audits as of August 2001 and currently working on another. In our November 1999 report, we noted that the department had not performed any field audits to verify the propriety of claimed costs. Without field audits, the department could not be certain that underlying support for claims actually existed because the strict confidentiality requirements of the CWPP prevent the district attorneys from submitting detailed invoices documenting their expenditures. We recommended that the department perform periodic field audits to ensure that district attorneys’ offices claim only allowable costs and use the CWPP consistently. To address our recommendation, the department’s internal audit team conducted audits of eight district attorneys’ offices, and it is working on a ninth. According to the assistant director of the department’s internal audits unit, the team selected district attorneys’ offices with the largest number of cases and the 8 largest value of reimbursements. It reviewed the underlying support for all expenditures at these district attorneys’ offices and determined whether the offices had proper controls and were administering the CWPP consistently. The department’s audit procedures are sufficient for those purposes. In addition, the auditors’ reviews of expenditures are appropriate and thor- ough, and their conclusions and recommendations are properly supported. Finally, when the auditors identified claims for which a district attorney’s office lacked necessary documentation, the department either worked with the district attorney’s office to determine whether the expenditures were justified or requested the district attorney to return CWPP funds to the program. By continuing to conduct these audits, the department is ensuring that it spends CWPP funds appropriately. THE DEPARTMENT CONTINUES TO RECONCILE THE PROGRAM AND ACCOUNTING RECORDS In response to our recommendation, the department developed a process to reconcile CWPP expenditure records with the department’s accounting records. Without a reconciliation process, the program analyst had no convenient way of determining whether payments were correct, prompt, and accurately recorded. The department continues to use its reconciliation process to ensure that payments are correctly paid and accurately recorded. The CWPP’s reconciliation The CWPP creates a database report that summarizes budget and is adequate and ensures expenditure data for each case and compares it to data from the that the department department’s accounting office. When the balances differ, the records all program program analyst communicates with the accounting office, whose transactions properly. staff investigate and resolve the differences. The reconciliation is adequate and ensures that the department records all CWPP transactions properly. THE DEPARTMENT HAS MADE ANTICIPATED CHANGES TO ITS POLICIES AND PROCEDURES As recommended in our original audit, the CWPP distributed an updated policies and procedures manual in January 2000. The manual clarified requirements for meal receipts and housing deposits, but the CWPP currently has more revisions pending final review. In March 2001 the department issued a letter to district attorneys’ offices about an anticipated change in housing deposits. This change requires any district attorney’s office claiming reimbursement for a deposit greater than $750 to 9 document, track, and recover any unused deposit and return the recovered amount to the CWPP. We believe that this policy is reasonable; however, the department should periodically reevaluate the cutoff amount and make changes as needed. Other changes anticipated in the policies and procedures manual will further clarify CWPP operations and expectations. THE DEPARTMENT CONTINUES TO INFORM DISTRICT ATTORNEYS’ OFFICES ABOUT THE PROGRAM’S AVAILABILITY AND REQUIREMENTS In accordance with our previous audit recommendations, the department has taken advantage of opportunities to inform representatives from the district attorneys’ offices about the use of the CWPP. The program analyst indicated that, as of October 2001, she had presented 26 briefings, workshops, and seminars explaining various aspects of the CWPP and has scheduled three more training sessions for the future. With the CWPP maturing and 42 district attorneys’ offices participating, we expect the need is diminishing for briefings and workshops to publicize the program. We anticipate that future communications from the department will need to focus on changes to the CWPP as they occur and may take the form of bulletins or memorandums to district attorneys’ offices. Using this type of communication would allow the CWPP to improve its use of limited staff resources. RECOMMENDATIONS The department has implemented the recommendations from our previous audit reports on its administration of the CWPP. To ensure the CWPP’s continued efficiency in the face of future growth, we recommend the following: (cid:127) The CWPP should periodically review established program rates, such as the housing deposit limit, to make certain that they remain reasonable and make adjustments as needed. (cid:127) The department should continue to monitor CWPP staffing to ensure that the program can efficiently perform all its activities. 10 Because the department now has sufficient controls to ensure the propriety of CWPP expenditures, we believe we no longer need to conduct annual audits of the CWPP. We recommend that the Legislature direct the department to provide us with an annual report on its operations, including case volume and expenditures, summaries of its audits of district attorneys’ offices, changes in CWPP requirements, and the status of continuing implementation of our recommendations. Further, we recommend that the Legisla- ture direct us to follow up on any areas of concern that arise from the department’s annual report and to perform an audit of the CWPP in five years to ensure that the department continues to administer the program appropriately. We conducted this review under the authority vested in the California State Auditor by Section 8543 et seq. of the California Government Code and according to generally accepted government auditing standards. We limited our review to those areas specified in the audit scope section of this report. Respectfully submitted, ELAINE M. HOWLE State Auditor Date: December 21, 2001 Staff: Lois Benson, CPA, Audit Principal Phillip Burkholder, CPA 11 12 Agency’s comments provided as text only. State of California Office of the Attorney General 1300 I Street, Suite 1730 Sacramento, California 95814 December 10, 2001 Via Hand-Delivery Ms. Elaine M. Howle, CPA* State Auditor Bureau Of State Audits 555 Capitol Mall, Ste. 300 Sacramento, CA 95814 Re: BSA Audit of the Department of Justice’s Operation of the California Witness Protection Program Dear Ms. Howle: The Department of Justice (DOJ) has reviewed the Bureau of State Audit’s (BSA) draft report to be issued on the DOJ operation of the California Witness Protection Program (CWPP). On behalf of Attorney General Bill Lockyer, I am responding to your recommendations as follows: Finding One: (cid:127) The CWPP should periodically review established program rates, such as monthly food allowances and the follow-up limit for collection of housing deposits, and make adjustments as needed. Response: The primary CWPP analyst periodically reviews established program rates on a daily basis. The primary CWPP analyst reviews all new applications for funding, and from a review of these new applications, is able to ascertain any trends in rent, hotel or housing and utility deposit increases and will recommend to senior management changes in the rates as needed. *California State Auditor’s comments appear on page 17. 13 Ms. Elaine M. Howle, CPA December 10, 2001 Page 2 Finding Two: • The Department should continue to ensure that staffing at the CWPP remains adequate. Response: The California Bureau of Investigation (CBI) consistently monitors the personnel level of the program to ensure adequate staffing. However, CBI does not presently feel that there is adequate staffing for the program and has attempted to secure additional positions, but efforts 1 through prior Budget Change Proposals (BCP) have been denied. The BSA audit did not mention that the primary analyst continues to work an average of twenty hours overtime each month for the last year to keep the program operating in a timely manner and has worked overtime every month since the inception of the program in January 1998. The audit also did not mention that the program analyst made a conscious decision during 2001, to reduce the overtime because of exhaustion, not because of a slow down in workloads. CBI, in the in- terim, hired a part-time retired annuitant (RA) from September of 1999, until the analyst retired in June of 2000. A second RA was hired in August of 2001, to assist in the processing of applications and reimbursements for Los Angeles County. The assistance provided by the part-time RAs has helped with the workload and backlog, but staffing is still not sufficient to consistently run the program in an expedient or efficient manner. CBI has redirected funds from its budget to cover the costs of the required supervisors’ oversight, which was required from a prior BSA audit, and the assistance of an Office Technician for typing needs. However, it should be noted this funding is tenuous at best because of the state’s current budget crisis. 2 Equally important, there is additional work which is not fully recognized in the analysis, including: 1) contacting agencies delinquent in forwarding reimbursement requests to insure adequate funding for other cases; 2) drafting a protocol for changing the identity of a witness; 3) performing ongoing review of program questionnaires for sentencing information and information pertinent to the case (the information from the questionnaires is used in the mandated Annual Report to the Legislature each year); 4) contacting agencies that have not forwarded their questionnaires upon the closure or adjudication of their case; 5) providing consistent training to district attorneys’ offices on the program’s existing policies and procedures; and 6) filing documents into case files in a timely manner. A BCP will again be submitted for fiscal year 2002/2003, to provide additional staff and to increase the fiscal year allotment. 14 Ms. Elaine M. Howle, CPA December 10, 2001 Page 3 Thank you for this opportunity to comment on the BSA report. If you have additional questions, please contact Georgia Fong, Director, Office of Program Review and Audits, at (916) 324-8010. Sincerely, (Signed by: Steve Coony) STEVE COONY Chief Deputy Attorney General Administration and Policy 15 16 COMMENTS California State Auditor’s Comments on the Response From the Office of the Attorney General T o provide clarity and perspective, we are commenting on the State’s Department of Justice’s (department) response to our report. The numbers below correspond to the numbers we placed in the margin of the department’s response. 1 We recognized that the program analyst for the California Witness Protection Program (CWPP) works an average of 20 hours of overtime per month and, as we agreed on November 29, we included this information on page 8 of our report. Further, we considered this information when we concluded the CWPP was adequately staffed. 2 As we indicated in the text of the report, we based our conclu- sion about the adequacy of the program’s staffing on its ability to process applications and reimbursements promptly. In the course of that work, we would have noted if inadequate staff time had caused consistent problems with the completeness of case files, but we noted none. Further, we separately addressed the issue of providing consistent training to district attorneys’ offices and suggested that a way to save valuable staff time was to use bulletins and memorandums to communicate with the district attorneys. Consequently, we stand by our conclusion that the CWPP was adequately staffed at the time of our review. Nonetheless, we recognize that conditions and priorities change; therefore, our recommendation encourages the department to continue to monitor the staffing levels of the CWPP to ensure program needs can be met, especially if the program continues to grow. 17 cc: Members of the Legislature Office of the Lieutenant Governor Milton Marks Commission on California State Government Organization and Economy Department of Finance Attorney General State Controller State Treasurer Legislative Analyst Senate Office of Research California Research Bureau Capitol Press 18