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became the subject of multiple federal civil and criminal investigations, and should not spend any additional appropriated funds for this purpose unless the Justice Department ... certifies that representing Dr. Mitchell is in the government's interest.

The GAO questioned whether "the activities under investigation, including Dr. Mitchell's trip to China, were within the scope of Dr. Mitchell's duties."

The Secretary regretted that the GAO opinion does not mention the contrary views of Dr. Hoffman, who was Dr. Mitchell's supervisor, or of a detailed analysis from outside counsel, both of which were submitted to the GAO.  With the approval of the Chairman of the Regents' Executive Committee, outside counsel has been asked to review the scope of employment portions of the GAO opinion in the light of its earlier report on this issue.

The Secretary pointed out that, on the issue of reimbursing with Federal funds the legal expenses of a Federal employee involved a Federal criminal proceeding, the GAO opinion state:

Since 1870, the statues governing this area have entrusted to the Justice Department nearly exclusive authority to perform or provide litigative services to government agencies and their employees.

This statement assumes that the Institution is a "government agency" subject to the Justice Department's policies and procedures.  The Institution has always consulted and cooperated with the Justice Department in all matters of litigation.  However, it has not been necessary in the past to resolve formally the issue of whether the Department's regulations concerning legal representation of Federal employees extend beyond the Executive Branch and control the Smithsonian's use of Federal funds to provide legal representation, specifically with regard to Federal criminal proceedings in which the Department is the prosecutor.  Moreover, the Justice Department representation regulations were amended in 1990 to recognize, in some circumstances, the interest of the United States in providing outside counsel to Federal officials involved in Federal criminal proceedings.

In discussion, it was noted that outside counsel has been preparing an opinion on the Smithsonian's legal obligation to advance funds for legal work undertaken by Dr. Mitchell's counsel under agreement with the Institution; it was agreed that the Executive Committee would resolve the matter of outstanding bills in consultation with the Secretary.  Outside counsel has been invited to comment on the GAO opinion in light of its earlier report.  In addition, the staff intends to seek the views of the Office of Legal Counsel in the Justice Department.

Mrs. Turner drew the Regents' attention to a report on various management initiatives undertaken to establish more controls relating to the policies and procedures for the application of the revised indemnification resolution.