Introduction
The federal government has a duty to represent the best interests of its citizens and has significant authority to carry out that duty; therefore, the federal government should aim for increased oversight, accountability, and efficiency. Numerous initiatives would increase oversight, but my suggestions are to:
(1) expand the application of prohibited personnel practices to all federal government employees, and
(2) establish an Inspector General within the Executive Office of the President (EOP).
Broadening the application of prohibited personnel practices will protect federal employees in all sectors of the Executive Branch from harmful and discriminatory conduct by their employers. Establishing an Inspector General adds a check on the EOP, increases accountability to citizens, improves efficiency, and supports existing oversight mechanisms.
Application of Prohibited Personnel Practices
Section 2302 of Title 5 of the United States Code details prohibited personnel practices.[1] Prohibited personnel practices (PPPs), as the name suggests, are employment activities that are banned in the federal work environment because “they violate the merit system through some form of employment discrimination, retaliation, improper hiring practices, or failure to adhere to laws, rules, or regulations that directly concern the merit system principles.”[2] Although these PPPs prohibit violations to the merit system, they do not apply to all federal workers. The statute specifically exempts some employees within the EOP, employees in the intelligence community, including the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency. PPPs apply only to “covered” employees in the federal government. The definition of “covered” employees refers to “any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service.”[3] Also covered are employees appointed under Title 38 of the U.S. Code and are medical or health care providers working at the Department of Veteran Affairs or the National Institutes of Health (NIH).[4] The definition of “covered” employees is specifically important, not for its explanation of who is included, but for its exclusion of any position that is “excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.”[5] This essentially means that it is within the President’s discretion to decide which employees are not covered. However, PPPs should apply to all federal employees, without exception.
A. Background on Prohibited Personnel Practices
The Office of Special Counsel (OSC) has jurisdiction over investigating and prosecuting complaints of alleged PPPs. Current and former federal employees may report a PPP with OSC using “Form 14,” which is available on the OSC website and may be filed electronically.[6] From there, OSC reviews the form and determines whether the evidence presented was sufficient to pursue a claim.[7] If the form does not present enough evidence, OSC will inform the complainant in writing of the reasons why the information contained in the form was insufficient for a PPP.[8] However, if the evidence is sufficient to warrant further inquiry, OSC will give the complainant and the agency an opportunity for mediation.[9] Additionally, OSC can request that the Merit Systems Protection Board (MSPB) discipline agency officials that have committed PPPs.[10] Some of the disciplinary actions that MSPB can take include removal, demotion, suspension, or fines.[11]
B. An Argument for Broader Application of Prohibited Personnel Practices
PPPs should apply equally to all federal employees because it is manifestly unfair that some employees can engage in this type of behavior, which would not be acceptable in another agency, and there are no statutory ramifications.[12] Arguments for the President to exclude intelligence communities and other agencies from PPPs are less persuasive after Presidential Policy Directive-19.[13] Although the intelligence community has a statute that dictates PPPs, it only prohibits retaliation and does not address any of the other PPPs.[14] The major difference between the intelligence community procedure for PPPs is that the complaint goes to the Inspector General of the Intelligence Community and is then reported to the Director of National Intelligence; the decision to enforce a sanction is ultimately left to the President.[15] The procedural difference is important to note because the OSC procedure outlines sanctions for violators, whereas the intelligence community leaves sanctions to the President’s discretion. It is important for the protection of federal employees to have consistency in the application of federal laws across all agencies because holding agencies to different standards allows for subjectivity and inequality in the enforcement of federal policies. Although agencies may vary in their missions and goals, consistency is important because the subject matter that agencies work on should have no bearing on the treatment of their employees.[16]
Additionally, it is a disservice to the intelligence community to have lesser protections against discrimination, nepotism, coercion, and other PPPs. There may be arguments against including the intelligence community in the PPPs because they handle sensitive information and a lot of their job duties are highly classified, but the advantage is a more effective system in place for employees to report all improper conduct by agency officials. The alternative is to leave the intelligence community employees and non-covered EOP employees open to possible discrimination, coercion, or threats.
Need for an Inspector General for the EOP
Congress created statutory Inspectors General to be independent and objective with investigatory and review powers.[17] Specifically, inspectors general (IGs) are responsible for promoting efficiency and investigating, preventing, and detecting fraud, waste, and abuse of agency programs and operations.[18] IGs are under the general supervision of the agency head; however, no one may interfere with the IG’s duty to initiate, carry out, or complete any audit or investigation, or issue a subpoena.[19] IGs are authorized to: (1) request information or assistance from any government; (2) make investigations and reports that relate to administering necessary programs and operations; (3) obtain authorized services under 5 U.S.C. §3109; and (4) have direct and prompt access to the agency head for any purpose that relates to the performance of functions and responsibilities under the IG Act.[20]
The EOP needs an Inspector General because employees in the EOP should have a convenient system that investigates complaints, much like the other Executive agencies. Without an EOP IG, complaints of fraud, waste, and abuse can be deferred to another office that the President would have less control over.[21] The President should strive for a more accountable government because it ensures that the law is being adhered to and that taxpayers are not being misled. Inspectors General perform an important job in the government and are proven to be effective; therefore, the EOP should implement an IG to increase oversight and accountability.
A. History of Inspector General for EOP Proposals
The 103rd Congress introduced H.R. 3038, the Executive Office Accountability Act of 1993, to amend the IG Act to establish an IG within the EOP.[22] The bill provided a provision that allowed the President to prohibit the IG from conducting an audit or investigation if it would interfere with the President’s core functions and responsibilities or if the prohibition was necessary to prevent disclosure of this information.[23] Additionally, the President could block the IG from issuing a subpoena under the explanation that it would interfere with the President’s responsibilities.[24] The bill would have required that the IG provide a semiannual report to the President that details a list of inspections, investigations, or audits conducted. This report was to include a statement “of whether corrective action has been completed on significant recommendations,” and a certification that the IG had full access to all relevant information to perform their functions.[25] Additionally, the IG would report and describe any cases that they did not receive or locate relevant documentary evidence for the audit, investigation, or inspection because it was prohibited by the President. Lastly, the IG would recommend any ways to detect fraud, waste, and abuse, and legislation that promotes efficiency and economy in the EOP’s programs and operations. This is a broad overview of the main provisions of H.R. 3038, but the bill ultimately was not enacted. The enactment of the bill hinged on the question of whether the EOP IG would impermissibly interfere with the President’s ability to perform his constitutional responsibilities.[26]
The 115th Congress introduced the Federal Executive Accountability Act of 2017, H.R.1016, which also would have established an IG for the EOP (EOP IG).[27] The President would appoint the EOP IG and that office would be under the direct control and authority of the President.[28] Not unlike H.R. 3038, this bill would have allowed the President to prohibit the IG from auditing, investigating, or issuing a subpoena that requires access to intelligence or counterintelligence, undercover operations, or the identity of a confidential source.[29] This bill also would have included reporting requirements for the EOP IG. Those requirements were that IGs include: (1) “a description of corrective action completed on each significant recommendation”; (2) “a certification of whether such Inspector General has had full and direct access to all information relevant to the performance of its functions”; (3) “a description of any audit, inspection, or evaluation occurring during the reporting period in which such Inspector General could not obtain relevant information due to an exercise of presidential power”; and (4) “any recommendations regarding efficiency in the administration of programs and operations undertaken by the President and the detection and elimination of fraud, waste, and abuse.”[30]Additionally, the EOP IG would have been required: (1) to assess whether the office followed the applicable classification procedures; and (2) to identify any policies and procedures in the office that may be contributing to misclassification of material.[31]
B. Constitutionality of an Inspector General for the EOP
Opponents of an EOP IG often challenge the establishment on constitutional grounds. This question depends on the Supreme Court’s application of the separation of powers doctrine that was created by the Framers of the Constitution. The Court has examined several cases that deal with the doctrine of separation of powers and their application to the President having the ability to fulfill his constitutional responsibilities. In Bowsher v. Synar, the Court took up a separation of powers issue involving the Comptroller General of the United States, an officer appointed by the President, with advice and consent of the Senate, that was given the authority to perform executive functions.[32] The critical factor for the Court’s decision was whether the officer could be removed by Congress.[33] With the creation of an EOP IG, the IG would be directly under the authority of the President and removable only by the President. It would be difficult to establish that Congress controls the EOP IG if the President has sole removal power and overall authority to prohibit the IG from any inspection, audit, or investigation.
In Nixon v. Administrator of General Services, President Nixon challenged the Presidential Recordings and Materials Preservation Act that gave control over documents and tape recordings from the Nixon Administration to the Administrator of General Services.[34] The Court rejected this argument because the Administrator is an Executive Branch official and because precedent shows that separation of powers does not mean that each branch of government must be absolutely independent of the others.[35] The Court created a test for whether an act disrupts the balance between the three branches:
(1) The inquiry must focus on the extent that it prevents the Executive Branch from its functions assigned by the Constitution.[36]
(2) Only if there is potential for disruption, the Court will determine whether there is an “overriding need to promote objectives within the constitutional authority of Congress.”[37]
In Morrison v. Olson, the separation of powers doctrine was once again brought to the Court as a challenge to the Ethics in Government Act of 1978.[38] The Court used the test articulated in Nixon and found that the separation of powers doctrine was not violated because the claim did not prevent the President from exercising his constitutional functions.[39] Mistretta v. United States presents the same issue framed in another way. In this case, prisoners were challenging the creation of the Sentencing Commission as a violation of separation of powers.[40] The Court found that the creation of the Sentencing Commission did not violate the separation of powers doctrine.[41] Although the Commission was created by Congress, it was created within the Judicial Branch, which is tasked with sentencing and therefore was valid.[42]
As the case law demonstrates, the separation of powers doctrine is not as rigid as it has been made out to be by challengers. The question then turns back to whether the creation of an EOP IG would interfere with the President’s ability to carry out his constitutionally designated functions. The answer is no. The EOP IG, much like the GSA and the Sentencing Commission, would serve as a function of the agency it was created in. The EOP IG would have the effect of increasing oversight and accountability within the Executive Branch and would be under the direct control of the President. It is possible that the creation of an EOP IG could interfere with the President’s duties because the IG would be required to send a report to Congress, but that interference is limited because the EOP IG would work with the President, and the President would have sole removal power over the IG. In fact, having this additional layer of oversight would likely increase the President’s, presidential advisors’, and other EOP employees’ ability to do their jobs effectively and efficiently.
Conclusion
Oversight and accountability are two important and necessary functions for any government — including its leaders. The federal government should strive to create a working environment that is free from discrimination, retaliation, improper hiring practices, coercion, and other prohibited practices. PPPs should be applied to all federal employees and the idea of “covered” employees should be removed. Oversight is more effective when it starts at the top, and in the United States it does not get more senior than the President. For this reason, Congress should create an OIG within the EOP to detect, prevent, and investigate waste, fraud, and abuse within the EOP.
[1] 5 U.S.C. § 2302 (2018).
[2] Office of Special Counsel, Prohibited Personnel Practices https://osc.gov/Services/Pages/PPP.aspx (last visited Nov. 17, 2021).
[3] 5 U.S.C. § 2302 (2018).
[4] 38 U.S.C. § 701 (2016).
[5] Id.
[6] Office of Special Counsel, Prohibited Personnel Practices https://osc.gov/Services/Pages/PPP.aspx (last visited Nov. 17, 2021).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] 50 U.S.C. § 3234 (2015) (detailing the prohibited personnel practices in the intelligence community that trigger sanctions).
[13] President Obama used his Executive power to create Presidential Policy Directive-19, which gave the intelligence community additional protections against retaliation when fraud, waste, and abuse were reported. This directive was implemented without incident and proves that the intelligence community can and should have additional PPPs. (https://irp.fas.org/offdocs/ppd/ppd-19.pdf).
[14] 50 U.S.C. § 3234 (2015).
[15] Id.
[16]Irvin McCullough & Kel McClanahan, SSCI Could Shake Up the Intelligence Community’s Whistleblowing System, Just Security (Feb. 12, 2022), https://www.justsecurity.org/79579/ssci-could-shake-up-the-intelligence-communitys-whistleblowing-system/ (explaining that there are flaws in the intelligence community whistleblower protections that were exposed during the first impeachment of Donald Trump).
[17] Inspector General Act of 1978, Pub. L. No. 95–452, §1, 92 Stat. 1101 (1978).
[18] Id.
[19] Inspector General Act of 1978, Pub. L. No. 95–452, §1, 92 Stat. 1101 (1978).
[20] Id.
[21] Government Accountability Office, What GAO Does https://www.gao.gov/about/what-gao-does (last visited Feb. 12, 2022).
[22] H.R. 3038, 103rd Cong. (1st Sess. 1993).
[23] Id.
[24] Id.
[25] Id.
[26] See U.S. Const., Art. Il, §§ 2 and 3.
[27] H.R. 1016, 115th Cong. (1st Sess. 2017).
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Bowsher v. Synar, 478 U.S. 714, 727 (1986).
[33] Id.
[34] Nixon v. Administrator of General Service, 433 U.S. 425, 431 (1977).
[35] Id. at 443.
[36] Id.
[37] Id.
[38] Morrison v. Olson, 487 U.S. 654, 696 (1988).
[39] Id. at 685.
[40] Mistretta v. United States, 488 U.S. 361, 370 (1989).
[41] Id. at 412.
[42] Id.
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