The acting federal personnel director is ineligible to remain in office while her nomination is pending before the Senate, and any decisions she has made in the past three months are “void,” according to the Office of Personnel Management’s inspector general.
A letter from the inspector general to Beth Cobert, who has been acting OPM director since July, says that under a recent court decision on the 1998 Federal Vacancies Reform Act, she has been ineligible to serve in that post since Nov. 10, the date she was formally nominated.
“Moreover, under the FVRA, any actions taken by you since the date of your nomination are void and may not be subsequently ratified,” says the letter, dated Feb. 10 but only released by the inspector general on Wednesday.
White House spokesman Frank Benenati said that Cobert was named acting director “consistent with the Federal Vacancies Reform Act. Since 1999, presidents of both parties have relied upon the consistent guidance and interpretation of that act by the Department of Justice governing when individuals may serve in an acting capacity while their nominations are pending before the Senate, and the Administration continues to rely upon that guidance. We firmly believe that Acting Director Cobert is acting within the confines of the law,” he said in an email.
The inspector general letter, however, says that the court specifically considered and rejected the Justice Department view and that pending possible review by the U.S. Supreme Court, the court ruling is the law of the land.
The inspector general’s interpretation would not affect Cobert’s status as the nominee, only her eligibility to serve as the acting director while the nomination is pending.
Cobert was named acting director after then-director Katherine Archuleta resigned in the wake of cyber thefts from OPM databases of personal information on some 22 million current and former federal employees and others.
A Senate committee last week voted to approve Cobert, but it is unclear whether the full Senate will act on the nomination anytime soon. Sen. David Vitter (R-La.) has raised the prospect of putting a hold on her nomination pending OPM’s response to questions he has posed regarding how the agency interpreted a provision of the Affordable Care Act.
That provision required members of Congress and certain staff members to leave the federal employee health insurance program as of 2014. Rules OPM issued in 2013 allow those individuals to continue receiving an employer contribution toward premiums if they enroll in an ACA exchange plan in the District designed for small businesses — an interpretation Vitter asserts is contrary to the law’s intent.
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The inspector general’s letter won’t hurt Cobert’s chances for confirmation, at least with Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.)
“The Administration’s failure to follow the law when appointing officials to management positions at OPM doesn’t change my evaluation of Ms. Cobert’s qualifications to be the next director of the agency,” he said in a statement.
But he said he does want her to fulfill outstanding congressional oversight requests. “Once she fulfills these commitments, I expect the Senate to consider her nomination promptly,” Johnson said.
The top Democrat on the committee, Sen. Tom Carper (Del.), praised Cobert and called for her speedy confirmation.
“It is my understanding that her nomination and appointment to her current position were made in accordance with the longstanding legal interpretations that have been relied on by current and former Democratic and Republican Administrations,” Carper’s statement said. “The Senate needs to follow our Committee’s lead and confirm this highly qualified nominee as soon as possible.”
The agency has lacked a deputy director since 2011; a nominee to fill that position was withdrawn after a similar dispute over the health-care law rules. After Cobert, the next in line for the agency’s leadership is general counsel Robin Jacobsohn.
The inspector general’s letter to Cobert focuses on a recent ruling by the federal appeals court in the District on the Vacancies Reform Act. That law specified ways to fill, on an acting basis, a position that requires Senate confirmation, as does the OPM directorship.
It says that the law states that a person who has been nominated to the position may not serve in the position on an acting basis unless that person had served as the “first assistant” in the office for at least 90 days; before going to OPM, Cobert had been a deputy director of the Office of Management and Budget.
Patrick McFarland, the inspector general, who is retiring on Friday, said the appeals court ruled last year that the prohibition applies to all acting officers. It reaffirmed the decision last month by refusing to reconsider the case.
“Because you were never a ‘first assistant’ to the OPM director and the president nominated you to be the director of OPM on Nov. 10, 2015, the FVRA, as decided by [the appeals court case], prohibits you from serving as the acting director as of the date of your nomination,” says the letter to Cobert.
Further, any actions she has taken since that date “may be open to challenges before the federal district court for the District of Columbia.”
Actions she has taken in that time include guidance on the use of recruitment, relocation and retention incentives for federal employees; guidance on performance evaluations; guidance on rotational policies and “onboarding” programs for senior executives; and a call for Presidential Rank Award nominations.
McFarland has clashed repeatedly with agency management over the past year. His warnings before the hacking that the databases were vulnerable became a focus of congressional hearings highly critical of OPM, and he issued a string of reports following the incidents critical of the agency’s response.
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The administration can appeal the appeals court decision to the U.S. Supreme Court, his letter notes.