Legal Commentary

It never fails to amaze me when the government pushes organizational compliance programs on corporations, but then does a relatively poor job backing up its own compliance efforts.  Last year, I reported on the DOJ's Office of Professional Responsibility, whose reporting suggested that OPR was more reactive than proactive, and seemed to intervene only in the worst of situations, thus setting itself up for compliance failure. 

Today, the Associated Press reports on the FBI's surveillance training program.  Apparently, agents receive training in the agency's procedures relating to surveillance (including standards which Director Mueller himself seemed to have difficulty articulating in Congressional testimony), and then are supposed to take a 51-question test verifying and demonstrating their knowledge.  It appears that some FBI agents (including very high level supervisors) may have outright cheated on the test, whereas others may have unintentionally violated FBI rules by discussing the test as a group when they were in fact supposed to take the test without help.  Although senators inquired of Mueller how widespread the cheating and related problems were, he was unable to answer those questions with specificity.

At the very least, this sad episode demonstrates a lack of thought and care in the design and implementation of an important compliance-related program.  Agents should have clarity both as to the importance of the training and test, as well as to the means by which such test is to be administered.  Cheating should lead to some level of discipline or punishment, depending on the circumstances, and to the extent it is widespread enough to trigger the Inspector General's involvement and questions from the Senate Judiciary Committee (as in the case here), it ought to be a high priority of the Director.  This isn't rocket science; it's Compliance 101.   

Were such shortcomings revealed within a corporation's compliance program, government prosecutors would sternly warn said corporation's management to clean up its act.  As the Inspector General's cheating investigation unfolds, it will be interesting to see how high-level officials, at the FBI and elsewhere, respond.