Acting Director of the Office of Personnel Management (OPM) Beth Cobert has no authority to serve in the job and everything she’s done in the last few months is void.
So says Patrick McFarland, OPM’s inspector general, who resigned in a mic-drop moment days after telling his boss that she wasn’t really the boss.
McFarland told her the day of her Feb. 10 Senate committee confirmation vote. He told Congress of the major issue the day after they voted on her and announced that he will retire on Friday.
The problem essentially happened because President Barack Obama’s view of his authority to appoint acting directors gave short shrift to the Senate’s role in signing off, McFarland said, citing recent court rulings.
“I am compelled to bring to your immediate attention that the Federal Vacancies Reform Act (FVRA)… prohibits your serving as the Acting Director of the U.S. Office of Personnel Management (OPM) as of November 10, 2015, the date that the President nominated you to the Senate for appointment as Director of OPM. Moreover, under the FVRA, any actions taken by you since the date of your nomination are void and may not be subsequently ratified,” McFarland wrote Feb. 10.
The issue is that a president can’t unilaterally appoint someone as acting director and have them take over while merely assuming the Senate will confirm the chief executive’s choice. Instead, the existing number two official in a federal agency is supposed to serve as acting director until the Senate confirms the president’s pick for a permanent replacement (or a boss from another agency may fill in).
“We will be providing a copy of this memorandum to Congress. Due to the severity of the issue, we are expediting our notification process and sending it to the appropriate Congressional committees tomorrow,” McFarland said.
Any actions taken by a person in violation of the FVRA “shall have no force and effect,” according to the law. Even if the Obama White House tries to minimize the fallout in the Cobert situation, it could open a slew of expensive litigation from civil service employee unions and related special interest groups who aggressively use all avenues to tweak federal personnel rules to their members’ benefit.
“These actions may be open to challenges before the federal district court for the District of Columbia,” McFarland said.
Cobert worked at the Office of Management and Budget (OMB) in July 2015 when Katherine Archuleta, the previous OPM chief, resigned in the wake of a massive hacking that compromised the personal information of millions of federal employees, retirees and dependents.
Obama then moved Cobert from OMB to OPM, naming her acting director. In November, he officially nominated her to be the next director of OPM.
The law on having non-number two agency heads serve as longtime acting directors dates back to 1998, and Obama’s view of his authority to place his picks in an “acting” capacity is similar to the actions of his predecessors. But this view relied on, essentially, loopholes, and around the time Obama nominated Cobert, it was becoming clear courts were saying that was never the intent of the law.
The Obama administration has challenged that finding, but the U.S. Court of Appeals for the D.C. Circuit “explicitly” rejected the interpretation in a decision rendered Aug. 7, 2015.
On Oct. 5, 2015, the Department of Justice requested that the court reconsider, but “on January 20, 2016, the D.C. Circuit denied these petitions, and the D. C. Circuit’s decision is final.”
The Obama administration could now take the issue to the Supreme Court, which the Obama administration could do with an eye to giving a possible Democratic administration more flexibility.
The Senate Committee on Homeland Security and Governmental Affairs, which has jurisdiction over the federal workforce and OPM, approved Cobert’s nomination as the permanent director in a voice vote. The full Senate still must vote on whether to confirm her.
It is unclear whether Cobert learned of the problem raised by McFarland before or after the hearing, and if before, why she didn’t mention the issue to the senators vetting the nomination.
Sen. Tom Carper, the committee’s ranking Democrat, praised Cobert for making big moves after the vote.
“Last summer, Beth stepped in as Acting Director to help OPM navigate the aftermath of one of the worst cyber-attacks committed against our government. Under her guidance, the agency continues to address the serious consequences of these breaches, including the implications for our national security and for the millions of individuals whose sensitive information was compromised.”
But those moves could now be void.
The Obama administration essentially appears to have incurred liability and uncertainty in order to test a legal theory on its powers to appoint agency heads without Senate confirmation.
That tension has now taken on additional overtones with the death of Supreme Court Justice Antonin Scalia. Democrats believe the Senate has an obligation to consider and confirm Obama’s nomination for a successor. Republicans believe the Senate confirmation process is so strong that they could force a delay until a new president takes office.
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