Government Reorganization in the Dark

Public Employees for Environmental Responsibility (PEER is suing the Office of Management and Budget for the submissions made by the public in response to an executive order signed by President Trump in March and ensuing guidance from OMB.  According to PEER (as reported by Government Executive) Mick Mulvaney, the OMB director, made a YouTube video inviting  American citizens to weigh in with ideas for “making the federal government more efficient, effective and accountable to the American people.” The video was implemented through a May 15, 2017 Federal Register notice inviting public comment on improvements to the organization and functioning of the Executive Branch.

OMB subsequently set up a website for the public to submit those ideas, with comments due by June 12th. OMB has averred that it had received more than 100,000 submissions and distributed them to relevant agencies. The website is not to be found — although it is a federal record; the link takes one to the bare bones OMB site.1

As Government Executive reported in December, agencies first turned in rough drafts of their plans to OMB in April, which were not made public. Efforts by Government Executive to obtain copies through Freedom of Information Act requests were denied, with the administration citing the deliberative process to prevent their release.

Agencies were required to turn in the final drafts of their reorganization plans in September 2017. Those submissions, according to guidance issued by the Office of Management and Budget in April, were required to include both short and long-term plans to cut the size of their workforces. As Government Executive noted in the December article, those plans have remained a secret, with administration officials saying they would only be made public when the White House releases its fiscal 2019 budget.

In a December 19, 2017 letter to OMB Director Mulvaney, Representative Elijah Cummings told the Director that, as he knows,2 the Oversight and Government Reform Committee (on which he is the Ranking Member) has oversight of the federal workforce and therefore of the agency reform plans. Mr. Cummings told Government Executive that such reforms should take place in full view of the public and with proper oversight.

Cummings asked for the documents by January 3; OMB did not respond to an inquiry on whether it would meet Cummings’ request.

A panel of the Senate Homeland Security and Governmental Affairs Committee has held two hearings to examine the reorganization plans. OMB declined to testify at both of those hearings, telling the subcommittee it was too early to offer its thoughts to Congress. Instead, leaders from various agencies gave broad outlines of their goals going into the process. According to Government Executive, federal employee representatives and some lawmakers bemoaned the lack of transparency in the reorganization process, including a failure to include ideas from front-line personnel.

1 If I manage to unearth the site, I will post the information.
2 As a previous Member of Congress, if nothing else.

Seven Words You Cannot Say on…a CDC budget

Those of us of a certain vintage remember George Carlin and “7 Words You Can’t Say On TV“.  Who would have imagined that our federal government would come up with its own list? For all the outrage that Mr. Trump and his supporters express about “political correctness,” i.e., calling people and communities by the names by which they choose to be called, the Washington Post reports that this administration has its own list of, quite literally, politically incorrect words and terms.

The forbidden words are “vulnerable,” “entitlement,” “diversity,” “transgender,” “fetus,” “evidence-based” and “science-based.”

On Thursday, 14 December 2017, senior CDC officials who oversee the budget told policy analysts at the Centers for Disease Control and Prevention in Atlanta of the list of forbidden words —that may not be included in any document related to the budget and supporting materials that are to be given to the CDC’s partners and to Congress, according to an analyst who took part in the 90-minute briefing.

Alison Kelly, a senior leader in the agency’s Office of Financial Services, told the analysts that “certain words” in the CDC’s budget drafts were being sent back to the agency for correction: “vulnerable,” “entitlement” and “diversity.” Kelly told the group the ban on the other words had been conveyed verbally. [Emphasis added]

In some instances, the analysts were given alternative phrases. Instead of “science-based” or ­“evidence-based,” the suggested phrase is “CDC bases its recommendations on science in consideration with community standards and wishes,” the person said. In other cases, no replacement words were immediately offered.

The article by

 

Deregulating Transparency— DOT and the Airlines v. Public


USA Today recently reported that—in the Administration’s effort to reduce regulations and their costs—the Transportation Department has abandoned two proposals from the Obama administration that aimed to provide air travelers with more information about fees on bags and other services before they buy tickets.

According to DOT Secretary Elaine Chao, “The department is committed to protecting consumers from hidden fees and to ensuring transparency. However, we do not believe that departmental action is necessary to meet this objective at this time. … Although we believe there would be benefits of collecting and publishing the proposed aviation data, the department also takes seriously industry concerns about the potential burden of this rule.”

The burdens on industry, that is.  According to USA Today, “most airlines said the costs providing the information would be burdensome and the information wouldn’t increase the transparency of pricing. Airlines also worried that the disclosures could require reporting of propriety information.”

In other words, as in most Republican administrations, asserted burdens outweigh public benefits from transparency and the ability to make informed choices.

Trump nominates person with no statistical experience to head Bureau of Justice Statistics, further threatening credibility of DOJ information

As reported in The Crime Report, the assault on the credibility of the Bureau of Justice Statistics continues:

President Trump has announced his intention to appoint a director of the Justice Department’s Bureau of Justice Statistics (BJS) who has no apparent experience in the field. … The only statistical experience cited by the White House in Anderson’s background was co-creating the Anderson and Hester Computer Rankings, which boast of computing college football’s “most accurate strength of schedule ratings,” taking into account the quality of teams’ opponents.

The Bureau was established in 1979 “to collect, analyze, publish, and disseminate information on crime, criminal offenders, victims of crime, and the operation of justice systems at all levels of government.”

Until 2012, the BJS directorship required Senate confirmation— when Congress changed the law and made the job a presidential appointment. According to Washington Bureau Chief, Ted Gest:

BJS directors under President Obama, James Lynch of the University of Maryland and William Sabol, now of Georgia State University, both were long-time criminologists and recognized experts in crime and justice statistics.

In May, under the auspices of the American Statistical Association, four former BJS directors wrote to Attorney General Jeff Sessions urging that “serious consideration” to head BJS, which operates in Sessions’ Department of Justice, “to individuals who have strong leadership, management, and scientific skills; experience with federal statistical agencies; familiarity with BJS and its products; visibility in the nation’s statistical community; ability to interact productively with Congress and senior DOJ staff; and acceptance of the National Academies’ Principles and Practices for a Federal Statistical Agency.”

The letter was signed by Lynch, Sabol, Jeffrey Sedgwick, who served as BJS director in the last three years of the George W. Bush administration and now directs the Justice Research and Statistics Association, and Lawrence Greenfeld, who headed BJS in the first five years of the Bush administration.

Anderson does not appear to have any of those qualifications.

The same four recent BJS directors wrote in May to leaders of the Senate and House Judiciary Committees arguing that the requirement for Senate confirmation for the BJS director should “be restored and that the director’s status be changed from serving at the will of the president to serving a fixed term of at least four years, staggered from the presidential election.”

The ex-directors said in their letter: “It is imperative that policy discussions about the often-contentious issues regarding crime and justice be informed by statistical data trusted by the public to be objective, valid, and reliable…”

“To ensure BJS data are viewed as objective and of highest quality, BJS must be seen as an independent statistical agency wherein data collection, analysis, and dissemination are under the sole control of the BJS.”

 

Zinke Evading Public Scrutiny — and Public Comment — to Build a Road Through a National Wildlife Refuge

On July 12, 2017 and August 2, 2017, Defenders of Wildlife filed Freedom of Information Act requests with the U.S. Fish and Wildlife Service for all records related to the Trump administration’s consideration of a potentially illegal land exchange to remove wilderness wetlands in Izembek National Wildlife Refuge in Alaska from federal public ownership for the construction of a road through Izembek National Wildlife Refuge. Defenders of Wildlife received more than 600 documents including evidence that the Interior Department is pursuing the land trade with King Cove Corporation — and doing so as much under the radar and without public comment as possible.

In order to pursue the road, the Interior Department is preparing to set aside a decades-old ban on development in federally protected wilderness areas. As notes in her Washington Post article, the documents obtained by Defenders of Wildlife, primarily internal agency emails, reveal how much discussion is intentionally taking place out of public view as federal, state, local and tribal officials work to approve a land exchange.

Congress directed Interior in 2009 to study whether it served the public interest to construct a road through the refuge. Four years later, the department produced an environmental-impact statement that concluded that the project should not be pursued because many species would be harmed, as the road’s construction, use and maintenance would disturb and fragment their habitat. In spring 2017, Fish and Wildlife Service officials produced an updated analysis of the two routes Alaska is contemplating through the refuge. It concluded that both would have “major” impacts on brants, tundra swans, emperor geese, bears, fish and, potentially, caribou.

“Both routes are equally destructive to the refuge’s purposes,” one official wrote in an April 28 email.

The documents from the U.S. Fish and Wildlife Service make clear that Interior Secretary Ryan Zinke has elevated the issue to one of the agency’s top priorities, and his appointees have taken deliberate steps to conceal the plan from the public.

At one point, a refuge official relayed his conversation with a department attorney about questions Zinke raised over public review of agency action related to Alaska’s survey of a possible road through Izembek:

He indicated the Secretary would like to see folks on the ground doing the survey in the next couple of days,” the official emailed colleagues. “He did not seem to [sic] excited about the direction that it was going out for public comment.”

In a separate exchange three days later, a senior Interior Department attorney in Alaska emailed another high-ranking official there to clarify that the land swap proposed by the town’s tribal corporation should be kept under wraps.

“I’m not sure if you were provided a copy of the letter from King Cove Corporation to Secretary Zinke requesting a land exchange so here it is,” the lawyer wrote. “I understand it [sic] King Cove is not going to make this request public but rather let the Department roll it out when it is ready.”

 

 

Trying to See Into, If Not Through, the Swamp

A recent investigation by ProPublica and The New York Times reveals that, at key regulatory federal agencies, members of the deregulation teams, have deep industry ties and are reviewing regulations their previous employers sought to weaken or kill. As ProPublica notes, “Appointees include lawyers who represented businesses in cases against government regulators, staff members of political groups raising so-called dark money and employees of industry-funded organizations opposed to environmental rules. At least four were registered to lobby the agencies they now work for and at least two may be positioned to profit if certain regulations are undone..  As ProPublica points out, however, “a full vetting of industry connections has been difficult because some agencies have declined to provide information about the appointees — in many cases, not even their names.”  It is not just to the media who have been stonewalled…

Rep. David Cicilline (D-R.I.) is among a group of Congress members who wrote to Mick Mulvaney (OMB Director) and Neomi Rao (Administrator of OIRA) in August expressing grave concerns about the secrecy of the Regulatory Reform Task Forces, calling on the administration to release the names of all deregulation team members as well as documents relating to their potential conflicts of interest, and requesting information about the nature of their meetings. They have received no response to date.

The result of the information revealed by ProPublica and the New York Times, combined with the non-response from OMB, has led Cicilline and a group of other House Democrats to introduce a bill — the Determining if Regulatory Actions are in the Interest of the Nation or the Swamp (DRAIN the Swamp) Act — to require federal officials —before they implement significant changes in U.S. regulations—to disclose any potential conflicts of interest and project how much they would personally benefit from any particular regulatory changes. They would also be required to identify any conflicts of interest for President Trump or senior members of his administration when changing major rules. The bill is co-sponsored by leading House Democrats, including Reps. John Conyers, Jr. (D-MI), Peter DeFazio (D-OR), Raul M. Grijalva (D-AZ), Gerald Connolly (D-VA), and Lloyd Doggett (D-TX). As of this posting, it does not yet have a bill number.  To date, it has no Republican co-sponsors.

 

The toxic swamp of special interests leadership at Interior; where do their loyalties lie?

The Western Values Project has created a thoughtful and well-documented site — the Department of Influence  —  to document the revolving door between special interest lobbyists and political appointees at the Department of the Interior. Such information is particularly pertinent at a time when the Secretary of the Interior has stated — in a speech to an oil industry group — that almost one-third of career bureaucrats at his department are “not loyal to the flag, and not in lockstep with him and President Trump. “I got 30 percent of the crew that’s not loyal to the flag,” Zinke said. “We do have good people, but the direction has to be clear and you’ve got to hold people accountable.”

Readers are reminded that the “swamp” of campaign — and Administration — fame is, in their minds, the career civil servants who take this oath of office

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. [emphasis added]

Disturbingly (if not surprisingly), the link at the Office of Personnel for this oath leads to a page with this information:

You have reached a collection of archived material.The content available is no longer being updated and may no longer be applicable as a result of changes in law, regulation and/or administration. If you wish to see the latest content, please visit the current version of the site.

The current version of the site does not take you, however, to any information about, or affirmation of, the Oath other than a Affidavits form that includes the Oath and Affidavits As to striking against the federal government and one As to the purchase and sale of office.

Neither the Oath nor these affidavits require an affirmation of loyalty to “the flag,” to the head of the employee’s agency, to any outside interests, or — most importantly — to the President.

What Happens When Agencies Don’t — or Won’t — Create Records?

The first important thing to know is the Federal Records Act imposes obligations on agency heads to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency.” Moreover, the federal agencies have an affirmative obligation to retain all recorded information—”regardless of form or characteristics”— that was “made or received by a Federal agency under Federal law or in connection with the transaction of public business” and serves as “evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government….” 44 U.S.C. § 3301 (2012).  A thoroughly-researched memo by the Sierra Club Environmental Law Program details the record retention policies at the Environmental Protection Administration, the Department of Interior, and the Department of Energy.

The New York Times reported1 earlier this month on reports and indications of secrecy at the EPA—including employees sometimes being told not to take notes at meetings.  More troubling for accountability, Administrator Pruitt’s aides recently asked career employees to make major changes in a rule regulating water quality in the United States (Waters of the United States or WOTUS)—without any records of the changes they were being ordered to make.  Citizens for Responsibility and Ethics in Washington (CREW) has noted that “That same rule was initially backed up by an analysis of “the economic benefits of preventing water pollution,” but once Mr. Pruitt decided to reverse the rule EPA “‘economists were verbally told to produce a new study that changed the wetlands benefit[.]’”* 

As the above memo notes, EPA’s records policy covers “all records made or received by EPA employees under federal law or in connection with the transaction of public business, and preserved or appropriate for preservation as evidence of EPA functions, organization and activities or because of the value of the information they contain.”2 Records must be retained if they contain information related to how EPA carries out its mission, such as communicating EPA requirements, or documenting the agency’s
decision-making process.

In a letter to the Archivist of the United States, CREW points out that Mr. Pruitt and EPA “are evading public scrutiny of their decisions by failing to create records in the first place.  Not only are these actions bad from a public policy perspective, but also they appear to violate the FRA requirements to both document and preserve records reflecting essential EPA decisions and policies and how they are made.  Adequate documentation is one of the two main pillars of the FRA; EPA’s failure to create this documentation undermines the goals of the FRA and deprives the public of access to records that document how the agency is fulfilling its statutory mission.”

The letter requests that the Archivist exercise his authority and responsibility under the Federal Records Act to evaluate actions of the U.S. Environmental Protection Agency (“EPA”) and EPA Administrator Scott Pruitt that appear to violate the Federal Records Act, and make recommendations to EPA for their correction and “full compliance with the FRA and inform both the President and Congress of these violations.”

* There is a pattern in this Administration; see White House Blocks Report Showing Societal Benefits of Refugees in the US

1Coral Davenport and Eric Lipton, Scott Pruitt is Carrying Out His E.P.A. Agenda in Secret, Critics Say, New York Times, Aug. 11, 2017 ;  EPA Information Policy, Records Management Policy (dated 7/07/2005),  at 1 – from SCELP Memo3  Id at 3.

White House Blocks Report Showing Societal Benefits of Refugees in the US

When the President released his second travel ban, it was accompanied by a Presidential Memorandum in which he called on the secretary of state to consult with the secretaries of Health and Human Services and Homeland Security and his White House budget director and — “[t]o further ensure transparency for the American people regarding the efficiency and effectiveness of our immigration programs in serving the national interest” — submit within 180 days “a report detailing the estimated long-term costs of the United States Refugee Admissions Program at the federal, state, and local levels, along with recommendations about how to curtail those costs.” As noted by the New York Times, the budget Trump released in May argued that refugees and other immigrants were a fiscal drain. “Under the refugee program, the federal government brings tens of thousands of entrants into the United States, on top of existing legal immigration flows, who are instantly eligible for time-limited cash benefits and numerous noncash federal benefits, including food assistance through SNAP, medical care and education, as well as a host of state and local benefits.” It would be less costly, it argued, if there were fewer refugees, since “each refugee admitted into the United States comes at the expense of helping a potentially greater number out of country.”  The White House apparently thought it was perfectly clear that the President was not interested in hearing about any benefits brought by refugees….

The internal (State, HHS, DHS) study, completed in late July but never publicly released, was obtained by The New York Times. The draft found that refugees “contributed an estimated $269.1 billion in revenues to all levels of government” between 2005 and 2014 through the payment of federal, state and local taxes. “Overall, this report estimated that the net fiscal impact of refugees was positive over the 10-year period, at $63 billion.” This report was spiked but, the Times notes, it was not clear who in the administration decided to keep the benefits-of-refugees information out of the final report. An internal email (shown to the Times), dated Sept. 5 and sent among officials from government agencies involved in refugee issues, said that “senior leadership is questioning the assumptions used to produce the report.” Continue reading

Walking Across the Line? Sidelining the Courts’ Review of Agency Actions

Language restricting judicial review has been included by conservative legislators in 28 House and Senate bills this Congress (at least 13 of which explicitly involve environmental issues).

As reported in E&E Daily, bills to reform the judicial system or restrict judicial review of agency actions are hardly a new phenomenon in Congress: several of the bills proposing changes in the broader legal system passed the House mostly along party lines during the Obama administration but stalled in the Senate and never made it to the president’s desk.

Judiciary Chairman Bob Goodlatte (R-Va.) has led the effort on the House side. According to Reilly, since the beginning of 2017 his committee has approved at least 10 pieces of litigation under a judicial reform agenda, including bills that would:

  • impose mandatory sanctions on attorneys who file “baseless” lawsuits;
  • set restrictions on groups of people who can file class-action lawsuits;
  • bar settlement dollars from going to third parties;
  • move certain cases against corporations from state to federal courts; and
  • “counter” ‘sue and settle’  — through which, GOP critics say, special interests sue friendly agencies in order to force them to issue new regulations.

In January, Senate Judiciary Chairman Chuck Grassley (R-Iowa) introduced a companion bill to the House’s sue-and-settle legislation.

Read here for more specifics about the bills.