White House designs on OPM get renewed attention
- By Susan Miller
- Jun 25, 2020
Portions of the White House’s plan to dismantle the Office of Personnel Management and fold many of its responsibilities into the General Services Administration were rejected by a senior Justice Department Official as unlawful, according to a new report in The Daily Beast.
In an April 2019 conference call, Steve Engel, the head of the Justice Department’s Office of Legal Counsel, told senior administration lawyers that the Trump Administration’s plan would be illegal, according to notes on the call obtained by the Project On Government Oversight (POGO). That legal “opinion,” the notes said, was not shared with a House oversight panel that held two subsequent hearings last year on the White House proposal, a congressional source told The Daily Beast.
White House officials denied the report by The Daily Beast. “This story is false,” an OPM spokesperson told Government Executive. “The Office of Legal Counsel never issued an opinion prohibiting the proposed reorganization of GSA and OPM.” A source contacted by GovExec said that not all legal guidance goes into written opinions. Some are legal conversations or oral guidance.
The administrations’ basic plan was to move OPM’s insurance, pensions and other back-office functions to a service inside GSA. A new policy shop -- Office of Federal Workforce Policy -- would be set up inside the White House, with its director reporting to the deputy director for management at the Office of Management and Budget.
The merger plan drew skepticism from Democrats on Capitol Hill and little enthusiasm from congressional Republicans.
At a House Oversight hearing last June on the merger, Rep. Gerry Connolly (D-Va.) said he had not received documents from OPM on its legal analysis, cost-benefit analysis and timeline for the planned merger. Further, portions of the legal analysis of the merger presented to the committee by OPM Deputy Chief of Staff Stephen Billy were redacted. “The legal analysis is ongoing and at this time we don't have a final analysis to share,” Billy said.
Committee member Rep. Jamie Raskin (D-Md.) said that "my first take on it, having looked at some of the legal authorities, is that the proposal is likely illegal," and he wondered why "OPM made a very significant decision to dismantle itself or to dissolve itself without first obtaining any formal opinion as to the legality of this decision."
In any case, the plan was blocked by the 2020 National Defense Authorization Act, which prohibited officials from the "transfer, transition, [merger or consolidation] of any functions, responsibilities, information technology systems, staff, resources of records" that are "assigned in law" to OPM.
However, the administration continues to pursue the merger.
In March, the National Academy of Public Administrators announced it had contracted with OPM to study the ramifications of the merger. NAPA said it would consider items such as stakeholders’ views, OPM’s statutory mandates, any challenges that such a merger would present to carrying out agency functions, potential costs and benefits, and the impact that the merger could have on labor-management relations.
The study is expected to be delivered to Congress in March 2021. Completion of the study was listed in the defense bill as a condition of executing any GSA-OPM merger. Even so, GSA included a request for $70 million to cover the cost of merging with OPM in its fiscal year 2021 budget proposal.
Meanwhile, numerous staff changes in the upper ranks of OPM have moved control of the personnel agency closer to the White House. Senate-confirmed Director Jeff Pon left OPM in October 2018, and he was replaced on an acting basis by Margaret Weichert, OMB's deputy director for management. The Senate confirmed Dale Cabaniss in September 2019, and Weichert left government in March 2020. Michael Rigas, the acting deputy director of the Office of Management and Budget, is now serving as OPM’s acting head.
Despite the legal and personnel wrangling over the personnel agency, the administration’s moves “to undercut OPM could pave the way for installing political cronies throughout the ranks of the nation’s 2 million federal civil servants and weaken their protections,” The Daily Beast said, adding that “some within the Trump administration have espoused giving the president near-absolute control over the federal workforce.”
American Federation of Government Employees National President Everett Kelley wholeheartedly agreed:
“This administration is intent on abolishing the career civil service – even if it means skirting the law to do so. The career civil servants who protect our nation and serve the American people are a bulwark against the cronies who staff the political levels of the administration and dispense favors to President Trump's supporters,” he said.
"AFGE leaders at OPM report that with no leadership at the agency left to protect its workforce or its mission, large pieces are being outsourced to other agencies, most notably GSA,” Kelley said. “Last year, AFGE urged Congress to include language prohibiting the use of 'interagency agreements' and similar mechanisms to circumvent the language prohibiting the legal transfer of OPM functions to GSA and other agencies. We renew that call today and ask Congress to conduct robust oversight of the administration's efforts to abolish OPM in defiance of the 2019 law."