October 25, 2017

Udall, Leahy, Feinstein, Blumenthal: Trump Administration Must Answer Why Nominees Are Serving Without Senate Confirmation

Michael Dourson, chemical industry hired gun, may be already influencing EPA toxics office work, without being vetted by full Senate

Dourson and other Trump nominees may be violating the law and circumventing the Constitution

WASHINGTON — Today, U.S. Senators Tom Udall (D-N.M.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Calif.), and Richard Blumenthal (D-Conn.) sent a letter 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 November 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 below and here.

Dear Mr. DeStefano:

We write today regarding reports that the Trump administration is allowing individuals nominated by the President to perform the duties of their appointed positions prior to Senate confirmation. We are concerned that such actions, if true, are unlawful and circumvent the Senate’s constitutional role to provide advice and consent with respect to presidential appointments.

As you may be aware, the Federal Vacancies Reform Act of 1998 authorizes the President to direct certain individuals to temporarily carry out the duties of a vacant presidentially-appointed position in an acting capacity without Senate confirmation. However, Congress also took steps to preserve the Senate’s advice and consent power by prohibiting an individual from performing the duties of an appointed position if the President has nominated that individual 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.”

We are particularly troubled by reports that Michael Dourson, who the President nominated to serve as the Environmental Protection Agency’s (EPA) Assistant Administrator of the Office of Chemical Safety and Pollution Prevention, may be performing the duties of that position as an advisor to Administrator Scott Pruitt prior to Senate confirmation. Concerns have been raised regarding Dr. 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 Dr. 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.

As Dr. 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, Dr. 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 Dr. Dourson’s exact current role or how he is interacting with the office he has been nominated to lead.

In addition to Dr. 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.

As the Director of the White House Office of Presidential Personnel, you are responsible for overseeing the selection process for presidential appointments and ensuring, in conjunction with the Office of Personnel Management and relevant agencies, that nominees who are currently serving within the executive branch follow all laws and regulations before their confirmation by the Senate. For these reasons, we request that you provide:

1. The names and position descriptions for all individuals nominated to a presidentially-appointed, Senate-confirmed position who are currently serving, in any capacity, within the executive branch prior to confirmation by the Senate.

2. A description of any authorities delegated to and duties performed by all individuals nominated to a presidentially-appointed, Senate-confirmed position who are currently serving, in any capacity, within the executive branch prior to confirmation by the Senate.

3. The steps you have taken to ensure that all individuals nominated to a presidentially-appointed, Senate-confirmed position, who are currently serving in any capacity within the executive branch, but have not been confirmed by the Senate, are abiding by their ethics agreements and Executive Order 13700 (also known as the Trump Ethics Pledge). Please specify if any such individual has received a waiver with respect to any ethics law or regulation or the Trump Ethics Pledge.

Please provide your responses to these questions in writing by November 8, 2017. Please also contact Jonathan Black to arrange for a time for a briefing regarding these topic. Thank you for your attention to this matter.

Sincerely,