Experts say long-term vacancies at the Department of the Interior may be a violation of the Vacancies Act

By Victoria Regis Knight and Casey Smith

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David Bernhardt had been acting secretary of the Interior for just over a month before President Donald Trump nominated him to take the position permanently. That made Bernhardt unusual in a department that has struggled for nearly two years to fill key leadership positions.

Of the 17 leadership positions at Interior that require Senate confirmation, 10 remain filled with personnel serving in an acting capacity. And while the 1998 Federal Vacancies Reform Act limits the length of time an official may remain “acting,” some of those interim appointments have been in place almost since Secretary Ryan Zinke took the helm in March 2017.

At least three officials have stayed past their term limits, according to the rules of the Vacancies Act.

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Both Zinke, who resigned Jan. 2, and Bernhardt signed a series of secretarial orders that have allowed the acting officials to exceed the federal time limit. The interim leadership at Interior was managing more than $10 billion of the department’s $18 billion budget in December 2018, according to an analysis by the Natural Resources Defense Council.

“It’s clearly an end-run around the Vacancies Reform Act,” Aaron Weiss, deputy director of the Center for Western Priorities, said about the law that limits the number of days some acting officials can serve.

Weiss, whose advocacy group has been outspoken against Zinke and Bernhardt, said lawmakers who designed the federal law “certainly didn’t intend for that to even be a possibility, that you could leave more than half of the Senate-confirmed positions unfilled for half of an administration.”

Interior and the Department of Justice are tied for the lowest percentage of key positions filled among all 16 main federal agencies — 41 percent — according to data from the Partnership for Public Service. Justice has 29 Senate-confirmed positions to be filled.

‘Questionable’ use of the Vacancies Act

Presidents are responsible for submitting nominees for all Senate-confirmed positions, but a new administration may find it difficult to meet the deadlines because those being nominated must be vetted in sometimes time-consuming hearings before the Senate votes.

The Vacancies Act allows individuals who have not been confirmed by the Senate to serve in acting roles temporarily to keep federal departments running. The act stipulates that acting personnel may serve a maximum of 210 days, but does allow up to 300 days after a new president takes office.

If the president has nominated a permanent candidate, the person holding the acting position may continue in the job while the nomination is pending — even if that exceeds 300 days.

But the president has failed to nominate permanent candidates for several major positions at Interior, including the director of the Bureau of Land Management and the special trustee for American Indians.  Current personnel in those roles assumed the “acting” positions in November 2017 and August 2017, respectively.

That means for at least those two positions, 300 days have already come and gone.

Other positions being filled with acting leaders have, at some point, had nominees who were not confirmed, making the time limits spelled out in the Vacancies Act even more complicated. If a nomination is returned by the Senate or withdrawn, another 210 days is allotted to the person in an acting role. The same applies if a second nomination fails.

Daniel Jorjani has been Interior’s acting solicitor since May 2017. The president nominated a permanent solicitor but withdrew the nomination May 10, 2018, leaving Jorjani in the job, thus, overstaying the 210-day mark because the nominee was withdrawn.

Andrea Travnicek, who is currently filling the role of the assistant secretary of fish, wildlife and parks, is nearing to her 210-day mark, since there has been no nominee for the role. Since she assumed the position August 6, 2018, her time will run out on March 4, 2019. However, the latest secretarial order that Bernhardt signed keeps leaders in their roles through May 30, 2019.

Zinke began signing secretarial orders as soon as he took office in March 2017 that allowed him to bypass the Vacancies Act’s time restrictions. Rather than naming the individuals as “acting” leaders, he delegated the responsibility attached to the position, so they can “act with the authority” of the director or the assistant secretary. Zinke signed 23 such orders before resigning; Bernhardt signed a 24th order Jan. 29.

INTERIOR DEPARTMENT’S 24 SECRETARIAL ORDERS



“My view is that this method does bypass the Vacancies Act restrictions,” said Nina Mendelson, a University of Michigan professor and expert in federal delegation. “Its legality is questionable at best.”

Anne Joseph O’Connell, a Stanford University professor and expert on the Federal Vacancies Act, said in an email that there are many questions about Interior’s methods.

“The staffing at the Department of Interior raises many questions of interest under the 1998 Vacancies Act and the Appointments Clause of the U.S. Constitution,” O’Connell said. “There is now an acting secretary. How long can he serve? The agency’s statutes provide no time limit, but the Constitution might. And there have been considerable delegations of authority when the Act’s time limits have run out, raising questions about the creation of new deputy positions.”

O’Connell is referring to another aspect of the mechanism written into the secretarial orders. To get around the “acting” title when time is running out under the Vacancies Act, Zinke created some new leadership positions, or “deputy” positions. Before the secretarial orders, people in deputy positions have typically been second-in-command to someone else — often a Senate-confirmed leader.

But those serving in newly created positions such as “principal deputy solicitor” and “Bureau of Land Management deputy director for policy and programs” are leading areas of the federal agency without Senate confirmation. Zinke’s authority to create such positions, O’Connell said, is also in question.

Adding to the confusion, all federal nominations not confirmed in 2018 have been returned to the president, who has to re-submit them to the Senate. Three nominations have been submitted, but there are no nominees for the other seven jobs.

Trump this month nominated deputy secretary Bernhardt to take over for Zinke. In January, the president nominated Mark Greenblatt, a deputy assistant inspector general for investigations at the Department of Commerce, as inspector general. Susan Combs’ nomination as assistant secretary for policy, management and budget also has been re-submitted. Her nomination has been pending since July 2017, stalled by a Senate-approval logjam that’s kept Combs and other appointees in limbo.

In a Feb. 3 interview with CBS, President Trump said he liked having acting leadership because “it’s easier to make moves” and gives him more “flexibility.”

How the process works

Those nominated to lead government agencies undergo a rigorous confirmation process, with federal officials requesting information on tax records and financial disclosure forms, as well as conducting background investigations that look for past litigation, criminal investigations and published writings or organizational affiliations. All 17 positions requiring Senate confirmation at Interior have to file these forms with the Office of Government Ethics, according to an unofficial list on the agency’s website.

Experts told the Investigative Reporting Workshop that acting leaders, especially those who have not been nominated to fill the position permanently, may be less scrutinized for conflicts of interest or financial recusals than those who have undergone Senate confirmation.

Don Fox, the former acting head of the Office of Government Ethics, said it’s possible that acting leadership’s financial disclosure forms may not be examined as closely as Senate nominees forms.

“The degree of scrutiny given to the financial and other interests of an acting official sometimes correlates to the official’s permanent position,” Fox said in an email, noting that individuals from outside the government hired into acting roles may not be as thoroughly vetted as a career federal employee.

A recent investigation by ProPublica found that many financial-disclosure forms filed by political appointees within Interior were approved by the agency’s ethics office, even when the forms were blank or did not fully disclose conflicts of interest.

Elizabeth Horton, spokeswoman for the Office of Government Ethics, said the agency would not comment on whether acting personnel’s forms are not as highly vetted or about the number of vacancies at Interior.

Acting leaders also don’t have to answer policy questions before assuming their positions, said Kristine Simmons, vice president for government affairs at the nonpartisan Partnership for Public Service.

“They don’t have the same Senate piece as nominees, where they have to answer policy-related questions from senators about how they would envision running the agencies,” Simmons said.

Zinke was asked multiple pointed policy questions during his confirmation hearing, including whether he supported privatizing public lands or allowing fossil fuel drilling in national parks.

Without policy vetting, people serving in acting leadership roles can steer offices in directions that go against the agency’s mission without any oversight on their actions, said Bobby McEnaney of the Natural Resources Defense Council, a nonprofit international environmental advocacy group that has been critical of Bernhardt and Zinke.

“You might have views that might be contrary to your obligations in the leadership role,” he said. “Essential to the mission of the Department of the Interior is to defend public lands and protect wildlife. They’re assigning people to take control of these offices who don’t necessarily have these views, and there’s no way to hold them accountable since they haven’t been vetted or confirmed to the roles.”

The open positions at Interior are not meant to be political, but the “politicization of the agency” may be holding up permanent appointments, said Phil Francis, who retired after 41 years with the National Park Service, where he most recently served as the superintendent of the Blue Ridge Parkway.

“I don’t understand why it’s so hard to fill these jobs,” said Francis, who now chairs the advocacy group Coalition to Protect America’s National Parks.

Who’s in (acting) charge now

Some in the current acting roles have industry ties to fossil fuels and anti-conservation.

Bernhardt, who had two previous stints at Interior, is a former energy and gas lobbyist who was confirmed as deputy director in July 2017. He must be confirmed by the Senate before becoming Zinke’s permanent replacement.

More than 150 environmental groups opposed Bernhardt’s confirmation as deputy because of his years spent lobbying for the oil and gas industry. Since being confirmed as deputy, Bernhardt has been one of the driving forces behind rolling back endangered wildlife protections for the sage-grouse as well as easing regulations on methane emissions for oil and gas companies.

Jorjani has been serving as the acting solicitor for Interior since May 2017. Previously, he worked for groups associated with the conservative billionaires Charles and David Koch; Jorjani was a director of policy at the Charles Koch Institute. Zinke gave Jorjani authority to oversee all Freedom of Information Act requests, according to a Nov. 20 secretarial order. Previous reporting by The Washington Post outlined Jorjani’s influential role as acting solicitor, including issuing legal opinions repealing part of the Migratory Bird Treaty Act and allowing the development of a copper and nickel mine in Minnesota.

Combs, a senior adviser to Zinke and outspoken critic of the Endangered Species Act, first served in an acting capacity as assistant secretary for fish, wildlife and parks while awaiting confirmation as assistant secretary of policy, management and budget. In August 2018, Zinke signed an order delegating her the “authority” to serve as the assistant secretary of policy, management and budget.

But Combs serving as the acting leader for the position for which she has been nominated may be its own violation of the Vacancies Act. The Supreme Court ruled in 2017 in National Labor Relations Board v. SW General that a nominee for a Senate-confirmed position cannot serve in an acting role for that same position.

A recent investigation by Rolling Stone and Global Witness reported that Combs has received as much as $2.1 million in campaign funds in recent years from oil companies, as well as rent and royalty payments from leases issued for mineral rights to her land in south Texas. Combs is also one of the leaders overseeing the reorganization of Interior, which could benefit these same oil and gas companies.

The Bureau of Land Management, which oversees more than one-tenth of all U.S. land and issues permits for oil and gas leases, is being led by Brian Steed, who has served with the authority of the director of the BLM since November 2017. Steed was formerly the chief of staff for Rep. Chris Stewart, R-Utah, who has advocated for federal land transfer to states and private companies.

Under Zinke and Steed’s leadership, the BLM has overseen numerous expedited oil and gas auction sales in the West. These public lands were deferred from auction under the Obama administration, and critics say the Trump administration’s push to lease means archaeologists and Native Americans can’t properly document what’s at stake, as Reveal News reported, including such things as ancient buildings, vessels, ceramics, petroglyphs and other artifacts.

Margaret Everson, the former chief policy officer of the hunting and conservationist lobbyist group Ducks Unlimited, recently assumed the acting role of director of the U.S. Fish and Wildlife Service.

Other acting leaders at Interior include Andrea Travnicek, a former coal and natural gas lobbyist, and P. Daniel Smith, an Interior career employee who was reprimanded in 2004 for striking a deal with Washington Redskins’ owner Dan Snyder that allowed Snyder to cut down trees that blocked his view of the Potomac River.

It’s not uncommon for top government officials to move between industry and the government. In George W. Bush’s Interior Department, then-Deputy Secretary J. Steven Griles pleaded guilty to obstruction of justice and lying to a Senate committee about his ties to convicted lobbyist Jack Abramoff. And Obama Interior Secretary Sally Jewell’s 2013 financial disclosure form indicated she had investments in several leading oil and gas companies and refiners. She promised to divest her portfolio of those investments when she took office.

Still, Interior’s leadership under Trump contradicts his own promises to ban lobbyists and “drain the swamp” in Washington.

Enforcement

Experts say it can be difficult for consequences to be imposed on agencies for running under essentially permanent acting officials or officials who have been delegated authority.

The Vacancies Act requires that federal agencies report their leadership vacancies to the Government Accountability Office, which is then charged with investigating and issuing violation notices. GAO has not sent any violation notices to Interior in 2017 or 2018, according to the GAO Public Affairs Office.

The GAO Public Affairs Office also told the Investigative Reporting Workshop that it sends an annual reminder letter to all agencies and departments about their required vacancies reports.

If an acting officer remains in office and attempts to perform a non-delegable function or duty — one that a statute or regulation expressly assigns to that office — that action will “have no force or effect,” according to the Vacancies Act and a 2018 brief published by the Congressional Research Service. But outside of sending a violation letter, GAO can’t force an agency to correct Vacancies Act violations.

University of Texas law professor Stephen Vladeck said that under the Republican majority-held Congress of the first two years of the Trump administration, there was virtually no oversight function.

“So the real question then is whether there is any litigation prospect,” Vladeck said. “And that just depends on whether these people are putting their names on permit applications or policies that have some direct impact on people.”

Stand up for California! filed a lawsuit alleging the Department of the Interior violated the Vacancies Act when Michael Black, acting assistant secretary of the Bureau of Indian Affairs, denied a land in trust request in February 2017. Land in trust is a special program in which the federal government holds the title to land, but allows Native American tribes to develop the land as they wish.

In February 2018, U.S. District Judge Trevor McFadden ruled that Black didn’t violate the Vacancies Act when he denied the request because the task was not an action that could only be done by a Senate-confirmed individual.

“This case involves a uniquely Washingtonian question: When can a federal employee act in the place of an absent agency or unit head?” McFadden asked in his Feb. 28, 2018, opinion. “This issue becomes acute during presidential transitions, when thousands of senior political appointees exit the government, often leaving their positions vacant for months or even years.”

No other lawsuits have been filed regarding violations of the Vacancies Act at Interior under the Trump administration, according to legal experts.

Other agencies have faced Vacancies Act lawsuits. In April 2018, Democracy Now filed a lawsuit against the Department of Veterans Affairs after alleging that President Trump violated the Vacancies Act by appointing outside candidate Robert Wilkie as acting secretary instead of deputy secretary Thomas Bowman in the wake of former secretary David Shulkin being fired. The lawsuit was dropped in August after the president nominated Wilkie to the top VA position.

Government watchdog groups, on the behalf of Senate Democrats, filed a lawsuit in November 2018 alleging that President Trump manipulated the Vacancies Act when he brought in Matthew G. Whitaker as the acting attorney general. The groups argue that though according to the Vacancies Act Whitaker qualifies to serve as acting secretary, the right person to step into the acting secretary position via the DOJ appointment of succession would have been Rod Rosenstein, the deputy attorney general. The Justice Department Office of Legal Counsel defended Whitaker’s appointment as legal.

What’s ahead?

Zinke’s resignation came amid at least 15 federal investigations into his conduct, including a land deal in Montana with a property development group backed by the former chairman of the oilfield services company Halliburton, David J. Lesar. In November, after looking into whether Zinke used his office for personal financial gain, Interior’s inspector general referred the case to the Department of Justice to see if it warranted a criminal investigation. The investigation is still underway.

Other ethics probes have been looking into Zinke’s actions that led to the denial of a casino request from Mashantucket Pequot and Mohegan tribes after lobbying by MGM. Politico reported that internal emails showed Zinke and senior officials were planning to approve the tribes’ request and then suddenly reversed course after meeting and having multiple phone calls with MGM in the time before the decision. The two tribes allege that MGM lobbied Interior because they did not want the tribes’ casino competing with their own casino located in a neighboring state. The two tribes filed a lawsuit in response to the denial, but it was thrown out by Judge Rudolph Contreras of the U.S. District Court for the District of Columbia in October.

During Zinke’s time at Interior, the inspector general conducted two investigations into the secretary’s behavior, including his use of chartered aircraft and allowing his wife to travel with him in government vehicles.

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The travel investigation found that Zinke “generally followed relevant law, policy, rules, and regulations” when it came to travel but that he could have avoided taking a $12,375 chartered flight from Las Vegas to Kalispell, Montana, a town near his home. Zinke was giving a speech to the Vegas Golden Knights, the city’s hockey team. In another investigation that was spurred by looking into the chartered flight, Zinke was found to have violated Interior policy by allowing his wife to travel in government vehicles, but he did receive approval from Interior officials before doing so.

While most of the scrutiny of Zinke has been focused on these ethics investigations, not as much attention has been put on the lack of Senate-confirmed individuals in leadership roles at Interior.

Even Bernhardt told The Washington Post in an interview published in October that long-term vacancies are not ideal, referring to the decades-long vacancy for the position of inspector general at Interior that occurred under former President Barack Obama’s tenure. Obama nominated Mary Kendall as inspector general in 2015 but could not get any movement from the Republican-held Senate, which disliked her.

“Mary [Kendall, deputy inspector general at the Department of the Interior] would agree that it would be good for the inspector general to be a presidentially appointed, Senate-confirmed individual,” he told the Post. “I think she would agree with us that the job has been vacant since [former Inspector General Earl] Devaney left, for almost a decade. That’s not good, because that’s not the way we run the country,” Bernhardt said.

Interior spokeswoman Faith Vander Voort told the Investigative Reporting Workshop that the agency is not in violation of the Vacancies Act because “it is legally possible for the functions of a vacant office to be carried out indefinitely by another individual pursuant to a delegation by the agency head.” She said that the secretarial orders signed by Zinke and Bernhardt comply with the legal requirements of the Vacancies Act.

Rep. Raúl Grijalva, D-Arizona, the new chairman of the House Natural Resources Committee, which oversees Interior, has vowed to restore Congress’ oversight function and look into Interior’s ethics issues now that Democrats have taken over the House.

Advocacy groups remain hopeful that will be true.

Jayson O’Neill, deputy director of the Western Values Project, said that having no confirmed leadership in these positions for a prolonged period of time has real consequences.

“These decisions don’t just affect people in D.C.,” O’Neill said. “ These decisions affect people in states, all the way down to local government. I think probably the best example is the way [many] national parks stayed open during the government shutdown. No one really knows why they didn’t close, but when you don’t have a director of the national park service, then you don’t have direction. And that may have caused irreparable damage to our public lands.”