The Trump administration is violating federal law and circumventing the advice-and-consent role of the Senate by relying on temporary directors to head agencies such as the National Park Service, an environmental group alleged Monday.
In a complaint filed with the Interior Department’s Inspector General, the watchdog group Public Employees for Environmental Responsibility charged that Interior was “completely bypassing Senate confirmation” with its appointments of acting directors to lead the Park Service, Fish and Wildlife Service and Bureau of Land Management.
“Federal agencies are not supposed to be run like a temp service,” Jeff Ruch, director of PEER, said in announcing the complaint.
Enacted in 1998 as a response to perceived abuses in the Clinton administration, the Federal Vacancies Reform Act sets limits on how long “acting directors” can run federal agencies. It also requires that a temporary director have at least 90 days of senior service the prior year in the agency he or she is running.
In its complaint, PEER says Michael Reynolds served 386 days as acting National Park Service director, far more than the 300-day limit. It also alleges Greg Sheehan, the deputy director of the Fish and Wildlife Service, has served in an acting capacity more than the 210-day limit for his position.
The group also charges that Sheehan as well as the Park Service’s P. Daniel Smith and BLM’s Brian Steed are all serving as acting directors despite not serving in their agencies for at least 90 days the prior year, and had been appointed by Interior Secretary Ryan Zinke, not Trump, as the law requires.
Asked about PEER’s claim, Interior Department spokeswoman Heather Swift disputed that Smith, Steed and Sheehan were acting directors. “PEER is either lying or doesn’t have a basic understanding of facts,” Swift said in an email.
Swift said that all three are deputy directors, not acting directors. Yet the Interior Department’s web site described Smith as “acting director” in a Jan. 24 news release. Sheehan was described as an “acting director” in a separate June 5 Interior news release. As for Steed, the BLM deputy director, Interior’s website describes him as “exercising authority of the director.”
Asked about claims the three men aren’t acting directors, PEER’s Ruch responded: “They are called acting directors. They sign memos like acting directors. They quack like acting directors. They are acting directors.”
Swift also cited a 1950 statute, Reorganization Plan No. 3, as giving the Interior Secretary authority to delegate duties to temporary officers. But Ruch argues that the 1998 Federal Vacancies Reform Act supersedes that 1950 law.
The Interior Department spat comes amid a broader debate over separation of powers and Trump’s use of temporary appointees to run agencies and programs throughout the government. Energy & Environment News last year reported on appointees dropping the word “acting” from their title to avoid legal entanglements under the Federal Vacancies Reform Act.
The Trump administration is hardly the first to bend or break rules in filling positions. The Government Accountability Office lists numerous violations during the Obama administration.
In Obama’s case, however, he struggled to get many of his appointees confirmed by the Senate. Trump has a different problem. As of Feb. 12, the president hadn’t nominated anyone for 230 of 634 key federal positions, according to a tracker published by The Washington Post and the Partnership for Public Service, a nonpartisan group.
These include people to lead the National Park Service, Fish and Wildlife Service and Bureau of Land Management. Together, these three agencies manage more than 400 million acres of land, about one-fifth the acreage in the continental United States.
A legal expert who reviewed PEER’s complaint Monday said that some of the group’s claims have merit, and could pose legal problems for any actions approved by acting agency directors. PEER has strong arguments that Interior many have violated the law by letting acting directors remain in their jobs for lengthy periods, said Anne Joseph O’Connell, a UC Berkeley law professor and expert on the Federal Vacancies Reform Act.
It is less certain there could be legal ramifications for temporary appointees who hadn’t previous served in their agencies, she said.
O’Connell added the Trump administration might argue that once Smith, Steed and Sheehan became deputy directors, they effectively became “first assistants,” and therefore became eligible to serve in an acting capacity.
But the administration could be inviting legal action if these appointees signed significant policy directives or memos while in an acting capacity, she said. “If they signed anything as acting director, anything they signed would be void,” said O’Connell.
In its complaint on Monday, PEER asked Interior Deputy Inspector General Mary Kendall to compile a list “of all invalid actions” taken by acting agency directors in violation of the law. If Kendall were to assemble and release such a list, it surely would become a litigation target for groups that oppose Trump’s energy and environment policies.