Architect of the Capitol

Special Counsel Nominee Clears Senate Panel Amid Concerns About Her Eligibility to Serve Another Term

Unusual vote called illegal by some inside agency.

Using a hastily assembled 10-Senator quorum in the President’s Room off the floor of the Senate, a key Senate panel Monday night approved the nomination of Carolyn Lerner for a second five-year term leading the Office of Special Counsel.

The unanimous voice vote for a bloc that included six unrelated nominations came as some critics of Lerner’s overall tenure inside and close to the agency raised questions to Government Executive about whether her re-nomination was legal.

“The Office of Special Counsel serves as a crucial resource for protecting whistleblowers around the country who come forward to expose waste, fraud and abuse in government,” said Sen. Tom Carper, D-Del., ranking member of the Homeland Security and Governmental Affairs Committee, after the vote. “It is critically important that we move forward with Ms. Lerner’s nomination in a timely manner.”

Lerner was combined with three nominees to become associate judges on the Superior Court of the District of Columbia, two to join the Federal Labor Relations Authority, and one to fill a vacancy on the U.S. Postal Service Board of Governors.

Lerner’s tenure at OSC has been marked by a rise in case processing productivity and surge in whistleblower complaints from the troubled Veterans Affairs Department, for which she won praise from lawmakers. But the agency has also earned low scores for employee morale and willingness to report problems up the chain of command in the Federal Employee Viewpoint Survey, and some critics have charged that Lerner is ignoring meritorious whistleblower cases.

The controversy over her eligibility for a second term stems from possible ambiguity in the wording of U.S. Code 5, Section 1211, which says, “The Special Counsel shall be appointed by the president, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection.”

To one of the internal critics, who spoke on condition of anonymity, that wording makes it “illegal for Ms. Lerner to serve in the position further. That's part of the reason why we have never had any other special counsel serve more than one term.”

The source continued in an email: “It makes no sense to rush on the Special Counsel's nomination now, if they get an additional year after their term ended (though the term's true dates are a little cloudy, and if it is a continuation of the prior term, she may already have to go). But most importantly, the law seems pretty clear -- The position has a term limit. You cannot succeed yourself.”

But others argue that statutes are usually unambiguous when Congress wants an agency appointee to be strictly term-limited, and, even under the stricter interpretation of the OSC language, one can point to other examples of when the Senate and the White House agreed on a special arrangement.

 “While 5 U.S. Code § 1211(b) is clear in stating a Special Counsel can serve just one five-year term, there has been precedent to at a minimum extend the term of an incumbent,” Joanna Friedman, a partner in the Federal Practice Group Worldwide Service, told Government Executive. “President Obama may have made the nomination with the intent of seeking legislation that the House and Senate could vote on that would allow the exception,” she added, citing praise for Lerner’s work as a possible bipartisan motive.  

“The director of the FBI position had been established as one 10-year term,” Friedman added. “However, in 2011 President Obama asked Robert S. Mueller III if he would consider serving in the position for two additional years. After Mr. Mueller agreed to the additional two years, Obama worked with the House and Senate on legislation to facilitate, and on July 26, 2011, it was signed into law.”

Other examples of exceptions to term limits offered by sources include the appointment of Chai Feldblum as commissioner of the Equal Opportunity Employment Commission, and Joseph Swerdzewski, general counsel of the Federal Labor Relations Authority from 1993 to 2001.

The White House did not respond to inquiries by publication time.