Members Target OPM Rule

Posted October 21, 2003 at 6:12pm

Key lawmakers in both chambers are set to introduce language prohibiting the Office of Personnel Management from enforcing a proposed rule that would curtail the practice of executive branch detailees working in Capitol Hill offices.

The rule continues to draw ire from Congress, and at least two more committee chairmen are drafting letters to OPM Director Kay Coles James objecting to the rule as drafted.

House Minority Whip Steny Hoyer (D-Md.) and Rep. Frank Wolf (R-Va.) plan to introduce an amendment during the conference on the fiscal 2004 Transportation and Treasury appropriations bill that would prevent OPM from using funds to “implement, administer, or enforce” the proposed rule, which would subject the detailing of military and executive agency staff to the direct approval of the OPM director and would limit the duration to six months.

The two have sent letters to Reps. Ernest Istook (R-Okla.) and John Olver (D-Mass.), chairman and ranking member, respectively, of the Appropriations subcommittee on Transportation, Treasury and independent agencies (which funds OPM), along with their counterparts in the other chamber, Sens. Richard Shelby (R-Ala.) and Patty Murray (D-Wash.), requesting that conferees include the amendment in the final bill. The funding measure has passed the House and is awaiting consideration by the full Senate.

Hoyer acknowledged that the efficacy of this strategy pivots “on the assumption that conferences are real and that we are going to have a conference on this.”

Senate Finance Chairman Chuck Grassley (R-Iowa) and Senate Energy and Natural Resources Chairman Pete Domenici (R-N.M.) got around the uncertainty of individual appropriations bills this close to the end of the session by requesting language be attached to the continuing resolution expected to be brought up next week. In separate letters to Senate Appropriations Chairman Ted Stevens (R-Alaska) and ranking member Robert Byrd (D-W.Va.), as well as to Shelby and Murray, the two list reasons why Congress should prohibit OPM from carrying out the proposed rule.

Hoyer said that there is “pretty strong opinion on the Hill on both sides of the aisle and both chambers that the rule as proposed [would] to undermine an effective program,” which he said benefits both Congress and the agencies tremendously by allowing the legislative branch expert advice about the agencies it oversees and executive branch employees insight into the legislative process.

“It appears to be an attempt to exercise greater central control over detailees and to have much more knowledge of where detailees are in the Congress of the United States,” Hoyer said. “This administration is very interested in centralized control.”

OPM insists the proposed regulation is a “management tool” to help the executive branch get an idea of how many detailees from the agencies are on the Hill at any one time and to which committees and offices they are assigned. Mark Robbins, OPM’s general counsel, has said the rule was not a White House initiative.

But Republican and Democratic lawmakers alike have questioned the administration’s intentions, asking why, if it is simply a counting mechanism, the OPM director would be given authority to pull any detailee at any time and subject all detail approvals to a litmus test of executive branch prerogative and national security.

Suspicions of the administration’s motives intensified when word circulated that the impetus for the initiative came from the White House counsel’s office.

Wolf questioned why a rule that would so dramatically affect the “number, availability and tenure” of detailees is needed. “I would hope that OPM would not act so quickly on a regulation that would affect hundreds of federal agency employees and a significant number of Congressional offices without consulting the Congress,” he said in a statement.

On Friday, Hoyer sent a letter to James expressing his concerns about the proposed regulation, which was listed in the Federal Register Sept. 9. More than three dozen lawmakers from both chambers have expressed their misgivings in letters to OPM.

House Homeland Security Chairman Christopher Cox (R-Calif.) and House Government Reform Chairman Tom Davis (R-Va.) are also working on letters to James, joining letters already drafted by Senate Governmental Affairs Chairwoman Susan Collins (R-Maine), House Administration Chairman Bob Ney (R-Ohio) and Grassley.

Grassley’s letter asked OPM to extend the comment period, which is set to expire Oct. 24, for an additional 120 days.

Seven more Senators and three House Members have joined Grassley’s letter, which now has 28 signatures. They are: Sens. Jeff Bingaman (D-N.M), Patrick Leahy (D-Vt.), Charles Schumer (D-N.Y.), Russ Feingold (D-Wis.), Edward Kennedy (D-Mass.), Byron Dorgan (D-N.D.) and Jim Jeffords (I-Vt.), along with House Transportation and Infrastructure Chairman Don Young (R-Alaska), House Small Business Chairman Don Manzullo (R-Ill.) and Rep. Marty Meehan (D-Mass.).

Sen. John Sununu (R-N.H.) has joined Collins’ letter, which now has 14 signatures.

James has said OPM will consider lawmakers’ comments before issuing the final rule, especially the proposed six-month limit (with the possibility for one six-month extension) on a detailee’s tenure, to which Members have vehemently objected. The current practice is detailees are assigned to an office for a year, with the possibility of a single, one-year extension.

In his letter to James, along with his “gravest concerns,” Ney questions whether the OPM director has the statutory authority to issue regulations governing the management of detailees.

The authority the Federal Register notice cites for the regulation, Ney asserts, “contains no language which reasonably can be construed to authorize OPM to control the detailing to Congress of employees from every agency and department of the federal government.”

“Moreover, even if the proposed regulation were loosely deemed to relate in some fashion to the execution, administration or enforcement of civil service rules and regulations within the meaning of section” of U.S. Code that OPM cites in its authority, “which it does not — absolutely nothing … authorizes OPM to determine what information may be withheld from Congress on foreign relations, national security and deliberative process grounds (all determinations the proposed regulation purports to authorize the Director to make),” Ney wrote.

“In short, OPM has greatly overstepped its bounds,” Ney concluded.

The House Administration chairman goes on to call the justifications OPM lists for promulgating the rule — “maintain[ing] the separation of powers under the Constitution,” and “prevent[ing] conflicts of interest” — as “vague and unhelpful.” And the rule, he notes, does not cite any problems to which the current system has given rise.

He also asserts that the conditions which the OPM director would use to approve detailees are “so devoid of principled content as to vest the director of OPM with virtually unchecked discretion.”