Vacancies In Federal Administration Lead To Complaint With Interior Department

Published: Tuesday, March 20, 2018 - 1:49pm
Updated: Tuesday, March 20, 2018 - 9:17pm
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STEVE GOLDSTEIN: The number of vacancies in federal administrations has been growing in recent decades and the Trump administration has moved that to a higher level. In response, the Public Employees for Environmental Responsibility, or PEER, has filed a complaint with the Interior Department's inspector general (IG) that the interim acting directors of the Bureau of Land Management, National Park Service, and Fish and Wildlife Service are all there in violation of the 1998 Federal Vacancies Act. The act says an acting or interim officer cannot serve more than 210 days. With me to explain the complaint and to what extent the Vacancies Act is needed is Anne Joseph O'Connell, a law professor at UC Berkeley. Professor, what specifically is the group here saying with this complaint?

ANNE JOSEPH O'CONNELL: They're making several claims, some of which I agree with, and some of which I don't. The first claim they're making is that there are acting officials at the National Park Service, the Bureau of Land Management and the U.S. Fish and Wildlife Service, and these acting officials have not served the requisite amount of time in the agency. And so this argument depends on which category of acting official they are.

So we have a statute called the Vacancies Act. We've actually had these statutes since the start of our country. The first one was in President Washington's administration but under the latest version of the Vacancies Act there are three groups of people who can serve as acting officers. One are first assistants, so the deputy's positions. The second is another person who's been appointed by the President and confirmed to the Senate to some other position. And then the third category are senior level employees of the agency who are paid at a GS-15 or higher amount and who have served in the agency for at least 90 days.

And so their first claim has to do with which category they're in. And the claim is that they are in this third category. That these men who are serving in these acting capacities are senior careerists and they're paid at the GS-15 or higher level but the employees are arguing they haven't served the requisite 90 days. So with regard to this argument, I think it's an open question.

But I think there's the argument that these acting officers are actually first assistants that they are the deputies. So there's a bit of a wrinkle here it's a little odd that these deputy positions have just been created by Secretary Zinke at the Interior. But I think it's an open question if in fact they are for assistants then they don't have to have this 90 day prior service before being acting.

GOLDSTEIN: And you said there were some claims that you completely agree with what falls into that category?

O'CONNELL: That acting officials under the Vacancies Act can only serve for a limited amount of time. The idea is that the Vacancies Act is a stopgap measure to help our government function when we're waiting for these nominations and confirmations to occur. And in the first year of an administration that time period is a bit longer than it normally is. So you have 300 days if there's no pending nomination. It gets a little complicated if there is actually a nominee about how long you have. But in these offices as I understand it there are no nominees you have 300 days. And if these individuals are serving as acting officers in the Bureau of Land Management and Fish and Wildlife Service past the 300 day mark, that's a violation of the Vacancies Act and anything they've done in those acting titles is void. I mean you'd have to go to court and show that the action is reviewable but then it would be struck down.

GOLDSTEIN: Is there something that the IG could actually discover here that may be actionable?

O'CONNELL: Yes. So I think if the IG discovers that these officials were serving past that 300 day mark and were using the official acting title on actions. So if they signed a policy letter and underneath their signature it says acting director of the Fish and Wildlife Service, that would be a violation of the Vacancies Act, that would be something that the IG would report, both to the Secretary of Interior and of course also to Congress under the IG act.

GOLDSTEIN: Would this take congressional action to actually make something change? Would there be some sort of constitutional violation there that someone else would have to push through? Would the courts have to act?

O'CONNELL: The constitutional violation is separate, there's a statutory violation. And I think the consequences for that, if that's with the IG finds, are twofold. The formal consequences: it's someone who's been affected by these actions, someone who is standing brings a lawsuit under the Federal Vacancies Act of 1998. The court would presumably also find a violation and would strike down that action as void. The second consequence, in terms of the IG report to Congress, you could say is a more informal consequence. If Congress is upset by misuse of the Vacancies Act, and they have been across multiple administrations, there were hearings under President Obama's administration as well, they can hold hearings and they're sort of congressional oversight consequences that could come from violations.

GOLDSTEIN: And as you mentioned the Vacancies Act has been around since President George Washington's days, but it received reforms during the latter stages of President Clinton's administration. So based on what's going on was it supposed to be a check and balance? And do you think the Vacancies Act is really effective and needed?

O'CONNELL: So, I'm a believer in the Vacancies Act. I think you need to both check presidential power. But I also think that the Vacancies Act is important in terms of the functioning of modern government. We need to have people in these positions to do the work, the immense work of the federal government. So I think there should be statutes that govern who should serve, how long they should serve. Now personally I would revise it in certain ways. I'm a big fan for example of that third category of potential acting officials, those senior careerists who have served in the agency for at least 90 days and who are getting paid at the GS-15 level. I think when we don't have people who have been able to get through the nomination and confirmation process, the public would be most reassured by having acting officials who are drawn from the senior career ranks. And we often have that. Of course we want senior careerists, senior Foreign Service officers, to serve in an acting capacity. Until very recently when we didn't have a director of the Internal Revenue Service the acting administrator of the IRS was a senior careerist. That's not true right now. President Trump made a change with that regard. But I think that the agency's Act is necessary, not a first-best solution that would be actually getting nominations and confirmations through. but as a second-best solution to making sure government functions.

GOLDSTEIN: Anne Joseph O'Connell is a law professor at UC-Berkeley.

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