United States. Congress. Senate. Committee on Labo.

Oversight of the Legal Services Corporation, 1984 : hearing before the Committee on Labor and Human Resources, United States Senate, Ninety-eighth Congress, second session, on review of the Corporation's documents to ascertain whether there are any problems with the agency's policies that need to be online

. (page 30 of 42)
Online LibraryUnited States. Congress. Senate. Committee on LaboOversight of the Legal Services Corporation, 1984 : hearing before the Committee on Labor and Human Resources, United States Senate, Ninety-eighth Congress, second session, on review of the Corporation's documents to ascertain whether there are any problems with the agency's policies that need to be → online text (page 30 of 42)
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37-965 O— 84 24



Status of Grants and the Scope of Monitoring.

The Corporation has asserted its responsibility to audit and monitor with
respect to the grants made to NLADA. NLACA has not disputed such responsi-
bility, but has requested reasonable notice and some clarification of the
status of the grants, monitoring goals, standards and methodology. Given the
events that have led up to the contemplated monitoring visit, NLADA has had
good cause to be concerned about fairness and ample justification to insist on
protective procedures. Some rather unusual events are described below.

1 . In the very first communication from the Bogard administration
concerning the grants to NLADA, Donald Bogard instructed NLADA to
stop spending grant monies and return to the LSC any unexpended
portion of the gremts. As it turns out, Mr. Bogard 's instructions
were based on an erroneous interpretation of the grant agreement
between LSC and NLADA, and ignorance of past LSC practice with j
respect to one-time grants. Mr. Bogard's precipitate, ill- .
founded instructions suggest pre- formed opinions, and — in the

context of NLADA 's public opposition to some LSC policies — raise
genuine doubts about whether the LSC is proceeding in good faith.
Mr. Bogard himself has not responded to either Mr. Lyons' or Mr.
Lerner's repeated requests for clarification with respect to the
status of the grants, except to indicate that the status of the
grants is irrelevant to monitoring.

2. It is important to note that up until January 27, 1984,
correspondence from the LSC to NLADA gave indications of a
contemplated audit with respect to LSC grant funds. The January
27, 1984 Potack to Lyons letter introduces the first written
notice of a contemplated monitoring visit. There is no
explanation of why a contemplated audit became the more sweeping
"thorough evaluation."

The unexplained shift in terms is significant. There are
generally accepted principles for the conduct of audits, but no
such principles for monitoring or evaluation have been
articulated by the Bogard administration. Moreover, the need
for definition of monitoring goals, standards and procedures is
especially acute where grants are not typical and where the LSC
has no monitoring precedents to follow. Thus, NLADA' s
correspondence evidences a constant quest for definition of
goals, methodology, standards and guidelines for the conduct of
the monitoring.

The situation has been compounded by the LSC's responses. Mr.
Potack, in his February 27, 1984 letter, did define an amorphous




We intend to evaluate whether the expenditures were
made consistent with the Legal Services Act of ^9^^, as
amended, and those rules, regulations, policies,
guidelines. Instructions, and other directives issued
thereunder by the Legal Services Corporation, as well
as the terms and conditions of the grant.

However, neither he nor Mr. Bogard has been specific either with
respect to methodology or standards. Mr. Potack enclosed a
monitoring checklist with his February 27 letter and indicated
that it would be used for NLADA. The checklist, however, raises
nearly as many questions as it answers. It was prepared for use
in monitoring Regional Training Centers and many of its questions
have no bearing on LSC grants to NLADA.

3. Tone

In addition to 1 and 2 above, the tone of Potack 's letters do not
strike one as the tone of ein objective evaluator (see, e.g.,
letters of February 10 and 27). His tone is that of an adversary,
not a fact- finder.

4. The LSC has failed to respond to FOIA requests about monitoring
activities with respect to LSC funded entities such as the
American Bar Association, the National Bar Association, the
American Corporate Counsel Association, other bar associations
and recipients of lOLTA grants.

5. LSC attempted to unilaterally defund, contrary to Congressional
intent, all of the training projects that were in place when Mr.
Bogard took over LSC. NLADA was the first target of Mr. Bogard 's
defunding efforts. In each case where a court has ruled on the
issues, LSC has been overruled.

For the reasons set forth in 1 , 2, 3, ^ and 5 above, NLADA has justifiably
sought clarification and agreement on a number of issues. NLADA has tried to
cooperate in structuring a fair process, and as the March 27, 1984 letter from
Mr. Lerner states, NLADA has offered a date for monitoring notwithstanding the
failure of the LSC to address issues of genuine concern.


III. CbrtKiologlcal SuBBai<y of Correspondence Regarding Audit
and/or Monitoring Between NLADA and LSC

June 28, 1983

Lyons to Bogard

Invitation to talk and build constructive relationship.

August 31, 1983
Bogard to Lyons

1. LSC grants terminated Decenber 31, 1982;

2. Stop spending funds and return unexpended funds;

3. LSC will schedule full and complete audit of records relating to
those grants.

Spetember 9, 1983
Lyons to Bogard

1. August 31 letter misinterprets grant agreement between NLADA and

2. Upon proper and reasonable notice, NLADA will cooperate in making
relevant information accessible to LSC.

September 21, I983
Nusbaum to Lyons

1. Audit will focus on LSC grant funds; will not cover funds from non-
LSC sources;

2. Requests budgets, workplans, etc., regarding expenditures of funds
under LSC grants.

September 27, 1983

Lyons to Nusbaum and Ritter

1. NLADA will cooperate in audit;

2. Audit at this time, on short notice, in light of errors of August 31,
1983 letter suggests NLADA has been singled out for reasons other
than financial oversight;

3. Will cooperate but time frames proposed impossible — suggests LSC
audit in conjunction with NLADA 's annual audit in January, 1984.

October 5, 1983
Nusbaum to Lyons

Understands impracticality of proposed time frame.


October 9, 1983
Bogard to Lyons

1. Requests any Information supporting Lyons September 9 position that
grants have not terminated;

2. LSC proceeds to schedule audit.

November 11, 1983
Lyons to Bogard

1. LSC files, correspondence and employee recollections support NLADA's

2. NLADA's willingness to cooperate for audit reconfirmed.

November 18, 1983
Bogard to Lyons

Requests copies of doouments supporting NLADA's position.

December 16, 1983
Lyons to Bogard

1. Sends copies of documents supporting NLADA's position;

2. Renews offer to meet with Bogard before issues become confronta-

January 27, 1984
Potack to Lyons

1. Affirms intent of LSC to conduct monitoring visit with respect to LSC

2. Dismisses Lyons telephone objections to LSC bias and promises
objective but thorough monitoring;

3. Insists that monitoring visit take place week of February 20.

February 7, 1984
Potack to Lyons

Identifies members of monitoring team.

February 9, 1984
Lyons to Potack

1. Understanding and clarity needed on status of grants, goals, metho-
dology and standards of monitoring;

2. NLADA will cooperate but on reasonable terms, consistent with LSC's

3. Declined request for monitoring visit on February 20, given practi-
cal considerations (renovation, scheduled Board meetings).


February 10, 1984
Potaok to Lyons

1. Lyons does not believe LSC entitled to visit;

2. Reschedules visit for February 29, 1984;

3. Willing to meet beforehand.

February 16, 1984
Lyons to Potack

1. NLADA consistently willing to cooperate;

2. Need to resolve legitimate questions, i.e., goals, methodology,

3. February 29 date is arbitrary and capricious.

February 27, 1984
Potack to Lyons

1. You have refused access and rejected my offer to meet;

2. Stated broad monitoring goal and included monitoring checklist;

3. Scheduled monitoring visit for March 19 and requested documents by
March 13.

March 14, 1984

Lerner to Bogard

1. NLADA will cooperate fully, but there is need for agreement in grant
status, scope and conduct of review process;

2. Suggested procedure to resolve issues relating to review process.

March 19, 1984

Bogard to Lerner

1. Status of grants not relevant to monitoring;

2. Lyons has repeatedly refused;

3. Rescheduled for March 28-30, 1984.

March 23, 1984

Lerner to Bogard

1. Object to your failure to negotiate monitoring ground rules with
good reason;

2. Week of May 2 set aside for your visit;
3- Information will be forwarded to you.

March 26, 1984

Bogard to Lerner

Suggested postponement not acceptable; team will be there on March 29.

March 27, 1984

Lerner to Bogard

1. Made every reasonable effort.

2. Offered May 2 despite LSC's failure to address concerns.

3. NLADA unavailable until May 2, given renovations.



733 Fifteenth Street, N.W., Washington, D.C. 20005

Writcf's Direet Telepboo*

February 10, 1984

Clint Lyons, Executive Director

National Legal Aid and Defender Association

1623 K Street, N.W.

Eighth Floor

Washington, D.C. 20006

Dear Mr. Lyons:

I aa In receipt of your letter dated February 9, 1984. It Is
unfortunate that you waited two weeks to respond to ny letter of January
27th. You could easily have contacted ne before now to notify me that
you would be refusing our access on February 20th. Tou have repeatedly
accused the Corporation of being unreasonable and dlsrepectful In this
natter. I disagree and seriously doubt that even you would argue that
your two week delay In responding Is reasonable. Tou are well aware of
the difficulties In arranging a aonltorlng visit when outside.
Independent consultants are Involved. Tou allege there Is confusion
regarding the administration of these grants and that I have
misunderstood the essential points you were attempting to raise. There
Is no confusion on my part and I fully understand the essential points.
The essential points are that you do not believe we are entitled to a
monitoring visit and that the terms and conditions of any monitoring,
even without a visit, must be agreed to by you. Tou have expressed
outrage about the fact I scheduled a visit without your agreement, and
because the monitoring team members were selected without your consent.

Tour letter states that you do not define monitoring to Include
on-site visitation, particularly since the NLADA is not a regular grantee
of the LSC. When I called you on February 8th, you stated that "NLADA
does not operate on someone else's rules." I suggest you look at the
special grant conditions attached to this award which specifically state
that your organization will comply with all policies and directives "that
are applicable to grantees under Sections 1006(a)(1)(B) and 1006(a)(3)(B)
of the Legal Services Corporation Act." I preaume you are aware of these
and other conditions since, as you said on Jauary 26th, you and other
former LSC employees were the persons responsible for awarding these



- 2 -

Tou have stated that you are In the midst of your annufll audit. I
had five separate audits as Director of Wisconsin Judlcare and cannot
understand what problems that creates, especially with the amount of
notice we have provided. You also stated that you are undergoing office
and bui l d in g renovations but did not Indicate how this would Interfere
with our visit. Finally, you mentioned a holiday which NLADA will be
observing on February 20th and a Board meeting on February 23rd.
Although we have made arrangements to be there on February 20th, I am
willing to accomodate you and reschedule the visit to start at 9:00 A.M.
on February 29th and ending no later than 5:00 P.M. on March 2nd. This
Is thirty four days after January 27th and twenty three working days. I
believe this recognizes the reasonable and legitimate expectations of all
parties in the process. As I indicated in my letter of February 7th, the
monitoring team will Include Dan Nusbaum, Peter Weber, James Jannetta and
myself. My team will be there at 9:00 A.M. on the 29th. You have no
reasonable or legitimate expectation to be able to select the monitoring
team or delay the visit. I regret that you are outraged by this fact.

I reassure you that this visit will be conducted objectively. I
indicated in my letter of January 27th that I was willing to sit down
with you the following week to discuss this matter. I therefore cannot
understand iriiy you keep mentioning that you have made a similar offer on
numerous occasions. If you sincerely want to meet, then by all means
let's do so.


-(^M>^ QsAxiL.

Gene M. Potack


Substantive Research & Support Unit




733 Fifteenth Street, N.W., Washington, D.C. 20005

WHttr'i Direct TtUphoa*

(30J) 272-4356

February 27, 1984

Clint Lyons, Executive Director

Rational Legal Aid and Defender Association

1625 K Street, N.W.

Eighth Floor

Washington, D.C. 20006

Dear Mr. Lyons;

I am In receipt of yoar letter dated February 16, 1984, wherein you
again refused access for a aonltorlng visit despite our attempt to
accomodate you by rescheduling the visit for a later date.

Tou state that NLADA has consistently offered to meet to resolve
various issues of the review process. However, I attempted to schedule a
meeting when 1 talked to you on^'the phone on January 26, 1984. You
refused to schedule a meeting 6s discuss terms until you received a
formal communication from me regarding our Intention to conduct a
monitoring visit. I made the same offer in my letters of January 27,
1984 and February 10, 1984. It therefore appears that you are raising
Issues and making offers without any intention of resolving this matter
or reasonably responding to our requests for information.

Tou attempt to Justify your lack of cooperation by raising Issues
which you claim have not been responded to by anyone at LSC, including
me. Since you apparently have no intention of meeting with me, I will
attempt to respond to the issues you raised.

Tour first inquiry relates to the goals of the monitoring visit. I
thought I made it perfectly clear in my correspondence and conversations
with you that we intend to evaluate whether the expenditures were made
consistent with the Legal Services Act of 1974, as amended, and those
rules, regulations, policies, guidelines. Instructions and other
directives issued thereunder by the Legal Services Corporation, as well
as the terms and conditions of the grants. The Corporation has a
responsibility to maintain its oversight management functions so that we
can assure the Congress, our Board of Directors, and our client community
that services are being provided economically and effectively. I find it
difficult to believe that you need more clarification than that in light
of your long history in legal services.

The other issues raised by you concern the standards to be applied
and the methodology to be employed in implementing the review. I told
you who would be conducting the vl8^^ three weeks aaa. Sfnro t ha«»


heard no objections, I assume you have no comments regarding the
qualifications of the Individual team members.

In terns of the areas and Issues Into which the team will Inquire, I
aa enclosing a copy of the monitoring Instrument developed for use during
the monitoring of the Regional Training Centers. It Includes three
checklists and a description of how thej were developed. This Instrument
will be utilized for monitoring and evaluating the NLASA grants. The
reasons for using this Instrument are: (1) You correctly stated that the
bulk of funds were allocated for the Management Project; and (2) The
Management Project Policy Board apparently decided that training
activities would be emphasized, while Individual technical assistance
would be used only as supportive followup to the training. It is my
understanding that the training packages were to be delivered entirely
through existing networks such as the Substantive Law Training Center and
Beglonal Training Centers. I therefore trust that you have already seen
a copy of the enclosed Instrument and agree that It Is appropriate for
the NLADA monitoring visit.

Tour final point Is that monitoring of the grant awards has already
proceeded. You apparently view a^few sketchy and delinquent quarterly
reports for the Management Project (il, 200, 000) as sufficient for the
other proJectV; I would appreciate knowing which "subsequent agreement
of the parties' you are relying u^on to the effect that quarterly reports
were not required for the Leadership Project (^500,000), Standards
Project (t80,000), Ubrary Project (i20,000) and Private Bar Project
(tl40,000). I would also appreciate knowing which agreement you are
relying upon to the effect that no prior approval is required for
consultant fees in excess of ;fc2,500. In any event, I do not view the
reporting (or lack thereof) referred to above as sufficient monitoring of
these grants.

I reassure you that you and your program will be treated fairly in
this process. Your program has not been singled out in any way for
special treatment. However, the Corporation has a responsibility to
maintain its oversight management functions, and given your long history
in legal services, I am sure you can understand our position.

I an therefore rescheduling the monitoring visit for March 19, 1984.
In addition to the materials referred to above, I would appreciate
receiving, no later than March 13, 1984, copies of the following

1. A copy of your accounting manual and chart of
accounts, as well as internal management reports
(budget-to-actual, etc.) for the period beginning
January 1, 1981, and other Information which
explains in detail the status of the
above-mentioned grants;

2. Copies of all Advisory Board minutes;


3. A list of past and current staff members of the
Leadership and Management Projects;

4. A list of other NLADA staff members for the period
from September 28, 1981 to the present time;

5. Copies of all workplans and priorities statements
for the above-mentioned projects;

6. Copies of all reports. Including those previously
submitted to Anita Henry at the Atlanta Regional
Office, relative to the above-mentioned grants;

7. Copies of all contracts with Individuals and
organizations for consulting fees paid for In whole
or In part with the above-mentioned grants;

8. A list of all consultants and the amounts paid to
date for each Individual and organization;

9. Copies of agendas, lists of trainers, and lists of
participants for alL,.' training events paid for In
whole or In part wlt'h the above-mentioned grants;

10. Documentation of technical assistance consultations
and followups. '^

. I believe the grant conditions and subsequent agreements provide that
NLADA will submit all appropriate Information requested by the
Corporation. 1 trust you will agree the Information requested above is
necessary for purposes of this monitoring. Since your audit process Is
well underway, I would also appreciate a call or letter this week to let
me know approximately how- much of each grant was not expended as of
December 31, 1983.

Thank you In advance for your cooperation.



Gene M. Potack


Substantive Research

and Support Unit
Office of Field Services

(31P: jmp





1625 K STREET, N.W.

WASH.. D.C. 20006


Exacultva Director


Director. Civil Division


ilroctor. Detenaof Division




Phiiodelpnia. PA



Atlanta. GA

Immeaiote Post President


Knoxville. TN



Indianapolis. IN



Ffonktort. KY


East Long Meadow, MA


Miami, FL


New York. NY



Tampa. H.


Seattle. WA


Atlanta. GA


Minneapolis. MN


Springfield. IL


Plainville, CT


Chestnut Hill, MA

Brooklyn. NY

Detroit. Ml


San Francisco. CA


Phiiaaeipnia. PA


Tampa. FL


I3opi0 Cilv, SD

March 23, 1984

Mr. Donald P. Bogard


Legal Services Corporation

733 Fifteenth Street, NW

Washington, DC 20005

R£: Legal Services Corporation
Grant Actions: 81-0004 and

Dear Mr. Bogard:

Thank you for your prompt response to my letter of
March 14. I regret that the NLADA proposal for the
monitoring process which would allow us to address and
clarify some important issues prior to the review did
not meet with your acceptance and approval. The
resolution of the critical issues of the status of LSC
grants made to NLADA and the ground rules for the
monitoring process is important for a number of
reasons. The status of the LSC grants to NLADA, as
viewed by LSC, has implications for NLADA' s planning in
regard to the completion of the grants. Further, NLADA
has delayed asserting claims that it may have under the
appropriation language attached to Public Law 98-116
because we have been attempting to reach some
cooperative clarification of the issue of status with
LSC. Apparently, NLADA' s position on this issue will
havie to be affirmed in another forum.

We believe that establishing clear guidelines and
ground rules up front for the monitoring process will
facilitate a review of what is essentially a unique
relationship. NLADA is not a recipient of LSC in the
sense of other grantees. It is an independent
contractor whose LSC funded activities are only part of
it overall activity. It seemed to us imminently good
sense to address these issues in a serious way in order
to avoid confrontation and delay once the review
process was under way. Further, in view of the facts
surrounding your initial contact with NLADA regarding
the grants, the switch from audit to monitoring and the
substance and tone of Mr. Potack's letters give us
cause for concern. Those factors clearly argue for
some clarity regarding the ground rules for review.


while we must lodge our objection to your refusal to discuss and
negotiate the ground rules for the review process, we believe it
important that NLAOA continue to demonstrate its compliance with
the intent and purpose of the grants. Consequently, I have
instructed the Executive Director of NLAOA to set aside the week
of May 2nd for the monitoring visit requested by LSC.

I have further instructed the Executive Director to assemble
information involving the LSC funded activity and forward that
information to LSC at least one week prior to the visit.

NLADA will prior to the visit present to LSC a review procedure
that we think meets statutory requirements as well as protect the
legitimate interests of NLADA.

We look forward to completion of this process.


Ben^fHiin Lerner

cc: Clint Lyons

Mr. Gene Potack

bcc: Alfreda Harvey
Wayne Pressel
Jawara Lumumba
Bucky Askew t^



In a May 7, 1984, letter to GAO, David A. Gilbert, director
of the Legal Services Corporation's (LSC's) Denver regional
office cited certain inaccurate or incomplete statements made in
GAO ' s April 11, 1984, testimony before the Senate Committee on
Labor and Human Resources. As the following discussion indi-
cates, GAO disagrees with Mr. Gilbert's comments.

1. Mr. Gilbert says that GAO's statement that "the Denver

Online LibraryUnited States. Congress. Senate. Committee on LaboOversight of the Legal Services Corporation, 1984 : hearing before the Committee on Labor and Human Resources, United States Senate, Ninety-eighth Congress, second session, on review of the Corporation's documents to ascertain whether there are any problems with the agency's policies that need to be → online text (page 30 of 42)