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. 


Saturday, February 11, 2017

Presidential Appointments:

So You Want to be a Presidential Appointee?

About a year and a half ago, I was contacted by the White House asking if I would be willing to be nominated for a Presidential appointment.  In the scheme of things, the position was a very low-profile one, but with the current spotlight on the nominees for major positions in the new Administration, I thought it might be instructive to some to outline what can happen, even if the case of much lower-level positions.

Here is an abbreviated timeline:

August 11, 2015:  I receive an e-mail from someone in the White House personnel office asking me if I would have an interest in serving on the Defense Nuclear Facilities Safety Board (DNFSB).  

For those who do not know it, DNFSB is a small "independent organization within the executive branch of the United States Government, chartered with the responsibility of providing recommendations and advice to the President and the Secretary of Energy regarding public health and safety issues at Department of Energy defense nuclear facilities."

I had not been seeking a full-time position of any sort, but as soon as I am asked, I realize that this is a real honor and I decide to pursue it.  I speak to her by phone that day and meet with her two weeks later.

October 13, 2015:  I learn that they sent my name to President Obama and he authorized them to start the "vetting" process. 

The vetting process involves the collection and review of an extensive dossier on the individual--financial information, memberships, foreign travel, etc.  I have to fill out several lengthy forms, get some information from my accountant, and have two-hour telephone interview with someone from the White House to go over all the details in the forms.  I wish I'd kept a record of how many hours I spent on the forms.  It was substantial.  I had to report every stock I owned, every foreign consulting assignment my husband or I had, and every foreign trip I'd taken, whether for business or pleasure, for the past 10 years.  I had worked for DOE and OECD in that period.  I'd lived in two countries in the last 10 years and had traveled a lot.

I begin working with several people, one in the White House, and one at DNFSB.  In the course of this review, they ask for all my financial information.  This includes the investments in a family trust for which I am a trustee.  They identify 4 very small amounts of stock that are not in energy-related companies but with which, for some reason, the Department of Energy has some sort of contractual connection.  As a condition of my taking a position as a Board member of DNFSB, I have to sign a form saying I will either resign as a trustee or sell the stocks in question.  This requires my getting the consent of family members involved.

I also have to agree to resign as from any board or committee positions, including committees of the American Nuclear Society and of my local alumni association, both non-profit organizations.

The vetting process also requires interviews by the FBI and others.  They interview me, they interview several of my neighbors, and they send people from the US Embassy in Paris to interview several of my former colleagues and friends in France from the period that I worked for the OECD Nuclear Energy Agency.   I always wondered how much that all cost.

During the course of this process, I am contacted by a headhunter about a possible position on a corporate board of directors.  If I were to be selected for this position, it would be more money for less work than the DNFSB position.  Still, I decide the DNFSB position would be for the greater good, and I decline to pursue the position.

The process spins out over several months, and there are changes in my contacts, both in the White House and in DNFSB.

April 26, 2016:  The White House issues a press release nominating me to the position.  

I then discover there is more paperwork to be filled out, and I work with DNFSB people on the additional forms.  These forms are to be sent to the Senate Armed Services Committee (SASC), which has jurisdiction over the DNFSB.  One form turns out to be the same form I'd already completed for the White House.  However, it had been so long since I'd filled it out that I fill out half of it again before I realize it!  Another form turns out to be the wrong form from the Committee and needs to be redone.

During this period, I am contacted by someone who wants me to write an article (for no pay) for a publication of the OECD, my former employer, and an international organization of which the U.S. is a member.  I am advised not to accept this assignment out of concern that it could cause problems for the confirmation process.  No details are given.

June 29, 2016:  The last of the paperwork is sent to the SASC.

July 12, 2016:  The SASC reports my nomination out of Committee along with 141 military promotions and 2 other civilian nominations.

This is an exciting moment--they moved quickly, and I am only one step away from completing the process!  I need only a vote by the full Senate to confirm me.  But summer recess looms.

July 14, 2016:  Congress recesses for the summer without acting on my nomination and one other.  (They do act on the 141 military promotions and one of the civilian nominations.)

I am told that they may act on it when they reconvene in September 6. 

December 10, 2016:  The Senate adjourns without acting on my nomination, effectively killing it.

My White House contact tells me that there is some chance that this could still be acted on before the end of the Administration.  Technically, the White House has to renominate me (along with others who are in the same position). 

January 17, 2017:  I get a message from the White House telling me that I was not renominated.

The message tells me that this is the sender's last day.  In fact, when I reply to him an hour after receiving the message, I get an automatic reply that he is already gone!
Reflections:  Why tell this story?  My experience was certainly not unique.  Hundreds of appointments have dragged on for a long time, some for longer than mine.  While I was under consideration, an Obama nominee for an Ambassadorship died while she was awaiting confirmation.  I am not writing to lay blame on any institution or political party.  Each step of the process (except the SASC action) took longer than I expected it to.   

Many appointments are delayed for political reasons or because of controversies about the individuals. Since this was not the case for me, I had hopes that my appointment might move faster.  But there may have been factors that were never shared with me.  The position I was to fill was being held by a Board member whose term had expired.  Officially, this was not a factor.  As soon as someone new is appointed, the person in the position leaves.  This is technically the rule, but did it delay progress?   That is possible, but with other appointments also delayed, it is impossible to tell for sure what the reason was in my case.

There are, of course, cases where appointments move very quickly.  One former NRC Commissioner told me his appointment--which was years ago--had no delays at all.  A number of the nominations made by the new Administration in recent weeks have also moved quickly, even in some cases where they are controversial.  I have even wondered how all the paperwork and other vetting that I went through could possibly be taking place for some of these nominations.

I should also emphasize that, in some ways, I am luckier than other nominees who get caught in this process.

I had spent most of my career in the Federal government in positions requiring a security clearance, so I'd been through similar reviews before.  I was already keeping the kinds of records that might be difficult for others to assemble, like my past foreign travel.  This review was more detailed than past security clearances, but I had most of the basic information.  

I live in the Washington area.  I did not have to start preparing to relocate quickly in anticipation of suddenly being confirmed.

While I did turn down some consulting assignments, they were fairly minor.  I am aware of other nominees who find that they are unable to conduct their business at all while they are under consideration.

I felt it was useful to share this story because I think most people do not fully understand the Presidential appointment process.  Since I work in Washington and have worked with a number of Presidential appointees, I thought I knew more than most about the process, but I still encountered a number of surprises along the way--the number of people I dealt with, the amount of paperwork, the number of colleagues and acquaintances who were interviewed, the surprise findings about some minor amounts of stock, the restrictions on my personal activities, both during the process and if confirmed, the long-term ramifications for an individual when opportunities arise during this period, and the details of what happens to pending nominations during the final month of an Administration.

This is not intended to discourage people from accepting invitations to be nominated in the future.  Some nominations, as I have said, do move more quickly.  It is an honor to be nominated by the President for any position, and I, for one, felt it was my duty accept, and, if confirmed, to serve.  I would probably agree to be nominated again, if asked, and I would encourage others to accept such offers as well.  However, anyone starting this process should be fully aware that it can be a long and tortuous road, even for positions that are not in the limelight and for individuals who believe that no controversy surrounds their nomination, and it can have impacts on one's investments and activities.