U.S. Sen. Tom Udall U.S. SENATE News:
WASHINGTON, D.C. — U.S. Senators Tom Udall (D-N.M.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Calif.), and Richard Blumenthal (D-Conn.) sent a letter Wednesday to Office of Presidential Personnel (OPP) Director John DeStefano in response to reports that the Trump administration is allowing individuals nominated by the president to perform the duties of their appointed positions prior to receiving Senate confirmation.
If true, the senators said, such actions are unlawful and circumvent the Senate’s constitutional role to provide advice and consent on presidential nominations. The four senior Democratic senators are seeking information from OPP about the number, names, and positions of nominated individuals serving in the administration prior to Senate confirmation, the extent of their temporary duties, and the administration’s actions to ensure that they are complying with all relevant ethics rules.
The senators noted the particularly concerning example of reports that Michael Dourson, who has been nominated to serve as assistant administrator for the Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention, may be already performing the duties of that position without having been vetted by the full Senate. According to news reports, the EPA has so far declined to publicly clarify Dourson’s role at the agency.
“Concerns have been raised regarding Dourson’s close ties to the chemical industry, including his partnership in a consulting firm that advised companies facing health a safety challenges from EPA. Although Dourson pledged in his ethics agreement to minimize certain ethical conflicts of interest upon confirmation, it remains unclear whether these steps were taken prior to his assuming his current role,” the senators wrote. “As Dourson’s nomination raises serious questions regarding his ability to serve as an effective regulator of the chemical companies he used to represent, his nomination requires a full and fair vetting by the Senate. Accordingly, Dourson’s performance of the substantive duties of the appointed position before confirmation could have a detrimental effect on EPA’s ability to protect public health and safety. To date, EPA has refused to explain Dourson’s exact current role or how he is interacting with the office he has been nominated to lead.”
The Federal Vacancies Reform Act of 1998 prohibits an individual from performing the duties of an appointed position on an “acting” basis without Senate confirmation if that same individual has also been nominated to fill the vacant position permanently. To ensure compliance, the law also provides that “any function or duty of a vacant office” performed by a person not properly serving under the statute “shall have no force or effect.”
In addition to Dourson, “there have also been reports that multiple nominees—including individuals at the Department of Energy, the Department of State, and the Office of Management and Budget—may also be performing the duties of their appointed positions prior to Senate confirmation. Such actions would not only subject the work of these agencies to legal challenges and uncertainty but also would be an affront to the Senate’s constitutional responsibility to provide advice and consent with respect to presidential appointments,” the senators continued.
The senators seek answers from OPP’s DeStefano to a series of oversight questions by Nov. 8, 2017. The senators are asking for the names, position descriptions, and authorities of all individuals nominated to a presidentially appointed, Senate-confirmed position who are currently serving within the executive branch even though they have not been confirmed. In addition, the senators request that DeStefano outline the steps he has taken to ensure that all of these individuals are abiding by their ethics agreements.
The full text of the letter is here.