Wednesday, February 15, 2017

Term Limits at DNFSB:

Good or Bad?

My last blog on my experiences in the Presidential appointment process as a candidate for a position on the board of the Defense Nuclear Facilities Safety Board (DNFSB) elicited several comments about the undesirability of Board members staying on after their terms have expired if they are not immediately replaced.

Since this is an issue I have had occasion to think about in the past, I thought I'd follow up the comment with a little history of practices in several different agencies.

First, a primer on boards and commissions versus single administrator agencies.  Basically, boards and commissions operate very differently from single administrator agencies.  In the latter, once an administrator is nominated by the President and confirmed by the Senate, they serve "at the will of the President."  That is, they are able to stay in their position until either the end of the President's term of office or until the President replaces them.  The President can replace any such individual at any time and for any reason.  If there is a gap between when one administrator leaves and another is nominated and confirmed, that position is filled on an acting basis by the most senior civil service employee of the agency. 

On the other hand, boards and commissions have several members who are co-equal in status (in terms of their votes on agency decisions), although one is designated by the President as the chairman.  Boards and commissions generally have an odd number of members (usually 5 or 7) in order to minimize tie votes, and since they are required to represent a spectrum of views, no more than 3 (in the case of a 5-member commission or board) or 4 (in the case of a 7-member one) can be from the party in power.  The other members are from the opposite party, or may be Independents.

The members of boards and commissions are appointed for staggered terms.   The terms are fixed in that, if a new board member or commissioner is appointed in the middle of a term, the official end of the term, they do not get a full 5-year (or 7-year for larger boards) term.  These terms are independent of the presidential cycle, so some appointed members may continue to serve into the next Administration.  They cannot be removed, except for "cause" (doing something illegal), so their term cannot be terminated for political reasons.  

However, for most boards and commissions, a commissioner or board member whose term has expired is permitted to stay in the position until a replacement is appointed.  That is the situation for the DNFSB.  There have been cases, where either the President has not nominated a replacement or the Senate has not confirmed the replacement, where an individual has been able to stay in their position for several years, even though their term had expired.

On the surface, it might appear that this has one advantage--a board or commission could continue to have a full, or nearly full, complement of members even if the President or the Senate failed to act.  However, as the comments I've received suggest, this has undesirable aspects as well.  It appears to remove the pressure for the President and the Senate to act, and depending on the politics, it could encourage a Senate that is hostile to the President to stall a confirmation to maintain the status quo.

Another feature of commissions and boards is that, if a vacancy develops, there is no provision for someone to serve as an acting member.  Therefore, there can be cases where the board is evenly split between parties and tie votes can occur; alternatively, there can be cases where the board split is 3 to 1 (for a 5-member board missing one member).  If a chairman leaves, one of the other board or commission members does fill in as the acting chair, but there are no acting board members or commissioners.  

It turns out that there are some variants to the rules for commissions and boards.  One notable example is the Nuclear Regulatory Commission (NRC).  I recall a discussion many years ago with the late Manning Muntzing, who headed a prestigious law firm in Washington prior to his death.  Earlier in his career, Mr. Muntzing had worked as an attorney for the local telephone company.  In that capacity, he dealt with the Federal Communications Commission (FCC) and observed the effects of this practice.

Later, he worked as a lawyer at the Atomic Energy Commission and was there at the time that the AEC was split up and the NRC was created.  In this capacity, he helped draft the legislation establishing the NRC.  He claimed responsibility for inserting the language into the authorizing legislation for the NRC that require an NRC commissioner to leave his or her position the day his or her term expires.  I recall that he was very proud of this provision.  He felt it would hold the President's and the Senate's feet to the fire and assure that they made timely appointments to the NRC.

How did that work?  Well, over the history of the NRC, it has frequently operated with four, or even three, members instead of the full complement of five, either because the President did not nominate someone to fill a seat that was expired or about to expire, or because the Senate did not act to confirm a nomination.  On one occasion, the NRC was down to two members, leading to concerns about the legal standing of any significant actions taken when there was less than a quorum of members.  Fortunately, that period was brief and the Commission managed to avoid any critical decisions.

Conceptually, this could happen again, since the NRC only has three members at present, and Chairman Svinicki's term ends this June 30.  Presumably, since the President just named her as Chair of the Commission, I would expect that he will reappoint her, and since the Senate has a Republican majority, I would expect her to have an easy reconfirmation.  Therefore, in this case, it is NOT likely that the Commission would go down to two members.  However, in other circumstances, a three-member Commission with 4-1/2 months to go on the term of one of them could be a cause for concern.

During the last few months, I became aware of yet another nuance in the rules, at least at one agency.  At the FCC, I recently learned, commissioners can stay on after their terms have expired, but only until the end of the session of Congress during which their term expires.  What the reasons are for this particular variant of the rules, I don't know, nor have I been able to find any other agencies that have a similar requirement, or that have any other variants.  What this does show is that, while most agencies operate under the same rules as the DNFSB, there are other models.

It is not clear that any one of these models is better than the others.  As the examples above illustrate, there is a downside in each case.  While a board that operates with 3 of its 5 members holding expired terms--as I believe has been the case at DNFSB since October 30--leaves something to be desired, the alternative model under which the NRC operates introduces other potential problems.

In any event, the only way of changing the rules for board members or commissioners of such agencies would be to modify the authorizing legislation of the agency.  That is probably a measure most agencies would not want to take for an action that might only substitute one set of problems for another. 


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