The Census Bureau uses cumbersome, sentence-fragment titles such as “performing the non-exclusive functions and duties of the Director.” In January, Interior Secretary Ryan Zinke issued an order to “temporarily redelegate authority” for vacant positions that require Senate confirmation.
“Some agencies purposefully do not say a person is serving in an acting capacity in order to avoid triggering the vacancies act,” said Max Stier, president and chief executive of the Partnership for Public Service, a good-government group that has studied the law.
The Social Security Administration is without a commissioner because during his 14 months in office Trump has nominated no one to the post. President Barack Obama nominated Carolyn W. Colvin, but she was not confirmed by the Senate. Nancy A. Berryhill held the acting commissioner title from January 2017, when Trump was inaugurated, until Wednesday, the day after the Government Accountability Office (GAO) ruled that her service violated the law because she had held that title beyond the permitted time.
In a letter to Trump informing him of Berryhill’s situation, Thomas H. Armstrong, the GAO’s general counsel, said he told all agencies “to update the status of any vacancies, acting officials, or nominations.” The GAO is reviewing the information to determine whether there are other violations.
As of Friday morning, Trump had significantly fewer nominees confirmed than any of the previous four presidents. He has nominated no one for 216 of 640 key positions requiring Senate confirmation, according to the online tracking service provided by The Washington Post and the Partnership for Public Service. It’s not clear how many of those are covered by the Vacancies Reform Act.
The law is intended to prevent a president from keeping interim officials in charge of agencies instead of nominating a candidate to go through the Senate confirmation process.
Berryhill, a well-regarded career Social Security staffer, started at the agency as a student aide 41 years ago. The GAO informed the SSA this week that the 300 days the law allowed her to serve as acting commissioner expired Nov. 17.
So she ditched the title.
“Moving forward, I will continue to lead the agency from my position of record, Deputy Commissioner of Operations,” she said Wednesday in a message to SSA employees.
Still, four days late, the SSA’s “commissioner bio” website link took visitors to a page with her photo and listing her as the acting commissioner.
Berryhill’s message sounded as if this kerfuffle means nothing. “Position titles come and go,” she wrote, adding, “beyond the change in title, there will be no impact in our service to the American public.”
But it isn’t that simple.
Any action she took as acting commissioner after Nov. 17 might be invalid.
“If an acting officer is serving after the relevant time periods have run, any attempt by that officer to perform a function or duty of an advice and consent office will have ‘no force or effect,’ ” Valerie C. Brannon, a legislative attorney with the Congressional Research Service, said Wednesday, quoting the law in testimony during a hearing of the Social Security subcommittee of the House Ways and Means Committee.
Surely, Berryhill must have undertaken important and significant functions and duties between the point her authorized time as acting commissioner expired and when she relinquished that title nearly four months later. For example, local media in Milwaukee reported that the SSA announced in February the controversial closing of an office there. If Berryhill had a role in that decision, does it have no force or effect?
Also, in a Dec. 7 letter, the SSA terminated its contract, memoranda of understanding and supplemental agreements with the American Federation of Government Employees (AFGE). The letter was not signed by Berryhill, but Dana Duggins, executive vice president of AFGE Council 220, which represents Social Security employees, said, “They couldn’t do that without her approval.”
Nonetheless, Mark Hinkle, the SSA’s acting press officer, said, “Since November 2017, the agency has not taken actions that would be void as a result of GAO’s finding of a Vacancy Act violation.”
But who is going to decide those important actions now?
The lack of a commissioner, acting commissioner or even a nominee for the top spot generates unnecessary confusion. Duggins said the union is considering legal action because of Berryhill’s muddled status.
Speaking of confusing, consider the Census Bureau sentence-fragment titles. Ron S. Jarmin’s title is “performing the non-exclusive functions and duties of the director of the U.S. Census Bureau.” Enrique Lamas’s title is “performing the non-exclusive duties and functions of the deputy director and chief operating officer of the U.S. Census Bureau.”
The Census Bureau said Jarmin and Lamas are senior civil servants in charge of day-to-day operations. “As indicated by the designation in Mr. Jarmin’s title,” the statement continued, “he is performing only those duties that are not exclusive to the Director as is permitted by the Vacancies Reform Act.”
Zinke’s order said his delegation of authority “covers only those functions and duties that are not required by statute or regulation to be performed only by the Senate-confirmed official occupying the position.”
Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which filed a complaint about three of the Interior positions with the department’s inspector general, said Zinke is trying to get around the Vacancies Reform Act, “but it turns not on what their titles are but what their duties are.”
Heather Swift, the Interior Department’s press secretary, insisted, “There obviously was no violation.”
There might not be a violation, but it’s not obvious.
“This is an issue that impacts many federal agencies,” Bruce Delaplaine, general counsel in the inspector general’s office, said in a letter to Ruch, “and one that is best resolved” by the GAO.