Grassley Assails Detailee Cuts

Posted October 3, 2003 at 6:25pm

In a move that could have far-reaching implications for Congress’ ability to conduct oversight of the executive branch, the Office of Personnel Management has proposed regulations that would limit the widespread practice of sending detailees from the federal agencies to Capitol Hill offices.

In a sharply worded letter sent Friday to OPM Director Kay Cole James, Senate Finance Chairman Chuck Grassley (R-Iowa) raised serious questions about the need for such a rule, which he fears would “reduce the number, availability and benefit” of detailees to Congress.

“Apparently, not all agencies and bureaucrats have taken to heart President Bush’s pledge to change the tone in Washington,” wrote Grassley, who is known for his keen interest in Congress’ ability to perform oversight of the executive branch.

“I am confident you agree that Congressional oversight of the executive branch is consistent with the interests of our entire government. However, this potential prohibition on detailees working on oversight matters could itself be a threat to the Congress’ duty to conduct oversight.”

John Gartland, director of Congressional relations for OPM, pointed out that the agency would take Congress’ opinions seriously and that the regulations would be reissued after the 60-day comment period, which ends Oct. 24. He indicated that some committees have already submitted comments.

He said the rule’s intent “mainly is to get a handle on how many people from the executive branch are up there, as a management tool” and wasn’t sparked by a particular incident.

“It came about when the White House called us and said, ‘How may people does the executive branch have up there?’” and couldn’t get an answer, Garland said.

The proposal, which was published Sept. 9 in the Federal Register, would subject the detailing of military and executive agency staff to the direct approval of the OPM director and would limit the duration of each to six months, with the possibility of one six-month extension.

The rule would apply retroactively to all detailees on Capitol Hill and would end all of their assignments by Jan. 2, 2004, regardless of previous arrangements. It could affect dozens, if not hundreds, of current agency staff on the Hill.

Although estimates of the number of such employees could not be immediately determined, by way of example the Senate Environment and Public Works Committee has six executive branch detailees. And beyond committees, the use of detailees by Members’ personal offices is widespread in both chambers.

“The purpose of this proposed regulation is to maintain the separation of powers under the Constitution and prevent conflicts of interest among the branches and individuals involved,” the rule states.

The regulation enumerates grounds for which the director of OPM should not approve a detail assignment. They include conditions that the detailing not cause a “conflict with respect to present or potential differing interests of the executive branch and the legislative branch” and will not “involve disclosure, or any significant risk of disclosure, of information within the constitutional authority of the executive to withhold because disclosure could impair foreign relations, the national security, the deliberative processes of the executive, or the performance of the executive’s constitutional duties.”

On the other side of the Capitol, a source indicated that the House Administration Committee is “certainly aware of this” and agrees with at least some of the issues Grassley raised.

“We are working with the appropriate offices to prepare a response,” said the House source. “It would certainly be accurate to say that concerns do exist, and I suspect those concerns will be communicated to OPM.”

In his letter, Grassley points out that the proposed rule does not cite any abuse or problems with the practice as it stands, and “if it ain’t broke, don’t fix it.”

The Iowa Senator also questioned the wisdom of putting the responsibility for approving or removing detailees with the director of OPM. “I am puzzled why oversight of detailees — which to my knowledge has worked very well at the agency level — needs to be centralized into one person in one office. Your duties and responsibilities are vast and important, and it is not clear to me why personally approving detailees should join them.

“I worry that agency heads could prevent detailees from providing their experience and expertise to oversight efforts by threat or use of the tremendous power over detailees that the OPM director would gain from this rule,” Grassley wrote.

As for the length of the appointments, Grassley maintained that fellowships of one year, with the possible extension of another year, are “substantially more beneficial and reasonable” given the complexities of the legislative process and the substantial learning curve involved.

This is not the first time Grassley has brought up the issue of detailees. In 1997, in response to reports about then-Speaker Newt Gingrich (R-Ga.) using Defense Department detailees for political purposes (which prompted a DOD inspector general investigation) and military detailees lobbying for proposals that benefited their department, Grassley questioned the placement of military officers on the Hill, saying it was “totally inappropriate and dangerous over the long run.”

“It has the potential for undermining and eroding two sacred constitutional principles of American national government — the separation of powers and civilian control of the military,” Grassley said at the time.

Asked to explain his position on military detailees vis-à-vis his recent letter on the importance of executive branch detailees, Grassley differentiated between abuse of the detailee program and the valuable exercise of one agency sharing its expertise with Congress.

“The 1997 inspector general report was in direct relation to specific instances of wrongdoing of military officers who had been placed as detailees in Congress and were allegedly influencing the legislative process for the Pentagon,” Grassley said in a statement. “I see this a completely separate issue than the new rules that are suddenly being proposed that would limit any detailee’s access to Congress and the knowledge and interest that these professional people have.”

Carolyn Shuckerow contributed to this report.