Thirteen legal scholars, in a letter to the U.S. Office of Special Counsel, say U.S. Department of the Interior Secretary Ryan Zinke’s reassignment of 50 senior executives is illegal if the moves are part of an attrition strategy or to punish views inconsistent with the Trump administration’s policies.
“The reassignment of over one-fifth of all senior executives within an agency is more akin to the spoils system that our country abandoned over a century ago than the type of efficiency-inspired mobility that the [Civil Service Reform Act] contemplates,” the letter states.
Georgetown University Law Center’s new Institute for Constitutional Advocacy and Protection submitted the letter in support of a complaint by Joel Clement—formerly director of the Office of Policy Analysis at the Interior—against the Interior department. Clement, a scientist and the department’s top climate policy official, played a major role in preparing the department’s response to climate change, with a particular concern for problems facing Alaska Native tribes.
On June 15, Clement said he was reassigned to the Office of Natural Resources Revenue, which is responsible for collecting royalties from fossil fuel companies. A month after his reassignment, Clement, who has no training in auditing and no direct reports in his new position, filed a whistleblower complaint with the Office of Special Counsel. In an article in The Washington Post last month, he detailed why he filed the complaint.
“I am a scientist, a policy expert, a civil servant and a worried citizen. Reluctantly, as of today, I am also a whistleblower on an administration that chooses silence over science,” Clement wrote in the Post.
A spokeswoman for the Office of Special Counsel declined to comment on the status of Clement’s complaint or whether others had been filed by the reassigned Interior department senior executives.
President Donald Trump has nominated Henry Kerner—an assistant vice president for investigations at the Cause of Action Institute—to lead the agency, which oversees federal employees’ whistleblower and other personnel grievances. Adam Miles, who joined the OSC in 2011, is the acting special counsel.
In response to press attention to the reassignments, the Interior Department said in a statement in June: “The president signed an executive order to reorganize the federal government for the future and the secretary has been absolutely out front on that issue.”
The 13 legal scholars, whose areas of expertise involve constitutional, administrative and civil service law, include Yale Law School’s Bruce Ackerman, Washington University School of Law’s Kathleen Clark, UCLA School of Law’s Jon Michaels, University of Chicago Law School’s Jennifer Nou, Harvard Law’s Ian Samuel and University of California Berkeley School of Law Dean Erwin Chemerinsky.
Clement’s complaint, the scholars said, “presents important questions about the extent of agency heads’ authority to reassign members of the SES (senior executive service).” The SES was created as part of the Civil Service Reform Act of 1978 in an effort to recruit and develop skilled upper-level employees, the scholars said.
“Critical to the SES’s efficacy is, with limited exceptions, independence from politics and, with no exceptions, freedom from retaliation for whistleblowing,” Joshua Geltzer, executive director of the Georgetown institute, wrote in the letter submitted Friday on the legal scholars’ behalf.
Eight Democratic members of the U.S. Senate Energy and Natural Resources Committee late last month asked the Interior Department’s deputy inspector general to investigate Zinke’s reassignment of the 50 employees.
The Georgetown institute was launched on Aug. 9 by a team of litigators with experience in trial and appellate advocacy, national security law and federal prosecution.
Hogan Lovells partner Neal Katyal is the faculty director. Geltzer, the executive director, is a former senior director for counterterrorism at the National Security Council. Mary McCord, the institute’s senior litigator, is a former acting assistant attorney general and former principal deputy assistant attorney general for national security at the Justice Department.
The institute recently filed an amicus brief in O’Donnell v. Harris County, a federal class action challenging the practice of detaining misdemeanor defendants before trial based on their inability to pay money bail. And the institute is supporting the plaintiffs in City of El Cenizo v. Texas, a challenge to a state law penalizing “sanctuary” cities.