Sen. Jon Tester, D-Mont., is one of the senators expressing concern.

Sen. Jon Tester, D-Mont., is one of the senators expressing concern. J. Scott Applewhite/AP

Senators Raise Concerns Over Burrowing In, Other 'Midnight' Activities at VA

Rushed policies and hiring decisions "should be left to the incoming administration," lawmakers say.

The Veterans Affairs Department has switched its top personnel official into a career position at a much maligned office, sparking concerns among lawmakers who are asking VA to halt that and other “questionable political actions” in the last weeks of the Trump administration.  

Sens. Jon Tester, D-Mont., and Brian Schatz, D-Hawaii, said in a letter to VA Secretary Robert Wilkie that the department was rushing to install personnel and policies at the 11th hour before President-elect Joe Biden takes office, including through the ever-controversial practice known as "burrowing in." The senators flagged a notice VA sent to Congress on Tuesday alerting lawmakers that Assistant Secretary for Human Resources and Administration/Operations, Security and Preparedness Daniel Sitterly had moved to the career position of deputy assistant secretary in VA’s Office of Accountability and Whistleblower Protection. 

“We are writing to request information regarding your plans for an organized transition to the Biden-Harris administration and to direct you to cease any further efforts to rush policies or hiring decisions, during your final weeks as secretary, which merit more scrutiny and should be left to the incoming administration,” the senators said.

Agencies can burrow political appointees into career positions—as typically occurs a few dozen times during each presidential term—but they must follow certain steps, including proving the employee is qualified and notifying the Office of Personnel Management. The Government Accountability Office typically reviews all occasions of burrowing in during each presidential transition, and a federal court recently ruled agencies can fire employees who do so improperly. An attorney for the defendant in that case, a fired Housing and Urban Development staffer, said the precedent-setting decision could have a far-reaching impact.

Tester and Schatz said Sitterly’s conversion “and others like it” could “potentially be in violation of civil service laws and rules,” which require burrowing appointees to demonstrate they would have otherwise been hired for the position in a normal process. The senators said Sitterly’s new role was particularly troubling as the accountability office has faced repeated allegations of retaliating against employees it was designed to protect. 

“With Mr. Sitterly in the number two position, which may make him the acting head of [the Office of Accountability and Whistleblower Protection] when the current administration exits, he is in the position of exercising substantial influence over investigations of his former office and colleagues and beyond,” the senators wrote. 

Christina Noel, a VA spokeswoman, countered that Sitterly’s move did not qualify as a conversion and therefore did not require OPM approval. That is because Sitterly previously served in a career Senior Executive Service role at the Defense Department and never relinquished his career status while temporarily sitting in a political position, she said. 

The Interior Department is moving forward with converting several of its political appointees into career positions, according to documents made public by ProPublica this week. Since July, burrowing has also taken place at the departments of Defense, Agriculture, Justice, Treasury and Homeland Security; the U.S. Agency for International Development; the Environmental Protection Agency; and other agencies not yet disclosed. 

Between January 2010 and March 2016, OPM blocked 20% of the 99 conversion requests made across 32 agencies in the Obama administration, according to a GAO review. The causes for those denials included bypassing veterans preference, using improper qualification standards, rigging the application process to ensure a targeted appointee was chosen and absence of “critical documentation.” In three cases, the Office of Special Counsel subsequently found agency officials violated civil service laws in requesting the conversion.

Observers have raised concerns about additional or easier burrowing during the current transition, as President Trump signed an executive order in October that gave agencies broad discretion to make political appointments for jobs typically reserved for career workers.  

Tester and Schatz flagged several additional actions Wilkie is taking on his way out the door. The Trump administration is pushing to fill appointments to the Asset and Infrastructure Review Commission, a panel created by the 2018 Mission Act to identify VA facilities to close or consolidate. The senators, however, said there was bipartisan agreement when the law was passed to allow the president on Jan. 21, 2021, to make those appointments. 

They highlighted “midnight rules” VA is promulgating, such as a move to eliminate the 48-hour period veterans are typically afforded for review before a benefits decision is finalized. The senators also said many of their requests for information from VA have yet to be answered and reminded Wilkie of his obligations to ensure all records are preserved after he departs. 

Tester and Schatz asked for a list of all political appointees at VA to include those who have converted to career positions, proof the department has instructed employees to avoid midnight rules and preserve documents, and guidance provided to appointees on post-employment ethics restrictions.