It likely will come down to a parliamentarian, if not a judge, to determine whether some of Interior Secretary Ryan Zinke's appointments for the National Park Service, U.S. Bureau of Land Management, and U.S. Fish and Wildlife Service were legal.
Public Employees For Environmental Responsibility on Monday asked Interior's Office of Inspector General to rule on whether the secretary's appointments of acting directors for those agencies were made "in blatant violation of the Federal Vacancies Reform Act."
Looking at the appointment of P. Daniel Smith as, in effect, the acting director of the Park Service, PEER contends that it went against the Reform Act because Mr. Smith did not serve in a senior position in the agency for 90 days during 2017. Indeed, Mr. Smith retired from the Park Service in 2015, ending his career as superintendent of Colonial National Historical Park.
In challenging the appointment, PEER cited Section 3345 (a)(3) of the Reform Act, which "provides that the person must have 'served in a position in such agency for not less than 90 days' during 'the 365-day period preceding the date the vacancy was created' at a salary 'equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.'”
"Mr. Smith had been back at NPS for approximately 15 days" when the appointment was made, said PEER. "He would not be eligible to serve as acting NPS director until at least April 9, 2018 – 90 days after he was brought out of retirement."
Park Service Chief Spokesman Jeremy Barnum told the Traveler in an email Wednesday that the appointment was permitted under a government reorganization plan adopted in 1950. Under it, the Interior secretary could authorize employees to carry out the functions of the department, he said.
But PEER officials counter that the Federal Vacancies Reform Act passed in 1998 was done so specifically to "amend, repeal, and/or replace" provisions such as the 1950 Reorganization Plan.
In essence, said Michael Nixon, PEER's strategic programs director, while the 1998 Reform Act did provide for some agency exceptions that allowed appointments to be made, the Interior Department was not among them, and so Secertary Zinke can’t now rely on the 1950s Reorganization Plan.
"That’s how we read the plain language of the law," he said Thursday.
If it's determined that Mr. Smith was not properly appointed, then any actions he took could be overturned.
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Comments
If Smith would become elegible to be an actual director on April 9 or shortly thereafter, then any victory would be ephemeral, if indeed any decisioon favorable to PEER is made as of that date.
He is far from he only one involved in this, and Interior is far from the only agency affected. Setting a precedent would be helpful.
While I am not a lawyer or parliamentarian, It seems to me that the specifics of the 1998 Federal Vacancies Reform Act would supercede the earlier reorganizational statute, as long as the vacancies reform act isn't ruled unconstitutional.
The appointment was not legal. Get rid of him and submit a legal and high quality person who will do what is best for our national parks.