Department officials reaffirmed they will allow employees to change their mind about whether to move to Kansas City until late September, but management has resisted setting that in stone.
Despite the Agriculture Department’s assertions that it has both the legal and budgetary authority to implement its plan to move the Economic Research Service and National Institute of Food and Agriculture from Washington, D.C., to the Kansas City region, lawmakers and an agency cited by the department disputed officials’ rationale.
On Monday, the Agriculture Department inspector general issued a report concluding that the department’s effort to move the two scientific agencies to Kansas City at the end of September violates a 2018 appropriations law preventing the department from implementing any reorganization efforts without prior approval from congressional appropriations committees. That language was also included in a fiscal 2019 spending law and House-passed appropriations legislation for fiscal 2020.
But the department claimed that such provisions are unconstitutional, pointing to the 1983 Supreme Court decision Immigration and Nationalization Service v. Chadha, which found that provisions of laws that grant congressional committees “legislative vetoes” of an executive branch decision are at best nonbinding.
“The budgetary provisions cited by the OIG report requiring committee approval have been ruled unconstitutional,” a USDA spokesperson told Government Executive. “[The] department is not required to abide by provisions that have been deemed unconstitutional, therefore we will not take the OIG’s recommendation to ignore nearly 40 years of precedent set by the Supreme Court, Office of Legal Counsel and the Government Accountability Office—an arm of Congress.”
The department cited GAO’s Red Book, a guide for agencies to navigate appropriations law, which contains a passage addressing the Chadha decision.
“Some statutory reprogramming restrictions also provide for committee approval,” GAO stated. “As in the case of transfer, under the Supreme Court’s decision in [INS v. Chadha], statutory committee approval or veto provisions are no longer permissible.”
But that provision may not necessarily apply in this case.
“GAO has not ever examined the specific legal provision at issue in the USDA OIG’s report,” Chuck Young told Government Executive. “We have, however, spoken about the impact of INS v. Chadha on reprogramming restrictions in our guide on appropriations law.”
Democratic lawmakers who oppose the relocation plan said that at best, the IG report raises more questions about its legality.
“We all knew this move made no sense and was driven by ideology over science,” said Sen. Chris Van Hollen, D-Md. “Now, thanks to this new inspector general report, we also know that it was potentially illegal. Secretary [Sonny] Perdue has some serious questions to answer, and this fight is not over.”
Rep. Sanford Bishop, D-Ga., chairman of the House Appropriations subcommittee that advanced the Agriculture Department’s appropriations bills, including the provision demanding committee approval of any relocation, called the inspector general’s findings “troubling.”
“The inspector general’s report simply adds another voice to the chorus of experienced professionals who know the ERS-NIFA relocation is a bad idea,” Bishop said. “As I have said before, there are many reasons this move does not add up. Now that the report has raised several troubling concerns, I again ask why only the Trump administration thinks this relocation is a good idea.”
As the debate over the relocation’s legality continues, the department is forging ahead with its plan to move ERS and NIFA out of D.C. by the end of September. On Tuesday, a USDA spokesperson told Government Executive that, despite ambiguous comments made by Perdue in a letter to Van Hollen last month, the department is committed to allowing agency employees to change their mind regarding whether to accept their relocation orders up until the last Friday in September.
“ERS and NIFA employees had to notify their agencies of their decision to accept or decline relocation by July 15, but they are able to change their minds up until the Friday before the report date in Kansas City,” the spokesperson said. “This fact has not changed. While the department did not extend the notification deadline of July 15, we have continuously maintained that employees have until the report date to amend their decision, which may include changing from a no to a yes.”
But provisions aimed at making the decision to relocate more attractive for agency employees appear to have been effectively vetoed by department leadership, despite statistics indicating that more than half of the ERS and NIFA workforces thus far have declined their relocation orders.
Peter Winch, special assistant to the national vice president of the American Federation of Government Employees, who has been in negotiations on behalf of research agency employees since they voted to unionize earlier this year, said that although he reached a tentative deal with management last month that would have provided a transition period of full-time telework to employees who agree to move and a relocation incentive to the tune of one month’s salary, the department has since stripped all specific language from the draft agreement.
“They replaced the [telework] language with the phrase ‘work-life flexibility,’ just generic language,” Winch said. “When we read it, it no longer seemed meaningful, so they’re going to have to come back and try again.”
Winch said that the department’s own negotiators acknowledged that the changes to the draft agreement came because “they were required to check in with people at the department level.”
Asked about whether someone in Perdue’s office vetoed the provisions, a USDA spokesperson acknowledged that negotiators were “in consultation” with department-level offices.
“The agencies are in direct negotiations with their unions, and we trust the agencies will handle employee requests fairly,” the spokesperson said. “Parties in each respective mission area, agency or staff office engage in collective bargaining at the level of recognition with appropriate consultation from the Office of Human Resource Management and the Office of General Counsel in accordance with established departmental policy.”
Casting a pall over the proceedings this week were recent comments by acting White House Chief of Staff Mick Mulvaney suggesting the department’s justification for relocating ERS and NIFA employees was merely a pretext for encouraging them to quit.
“Now, it’s nearly impossible to fire a federal worker,” Mulvaney told attendees of a Republican party event in South Carolina last weekend. “I know that because a lot of them work for me. And I’ve tried. And you can’t do it. But simply saying to the people, you know what, we’re going to take you outside the bubble, outside the Beltway, outside this liberal haven and move you out into the real part of the country, and they quit. What a wonderful way to streamline government and do what we haven’t been able to do for a long time.”
In a statement Monday, AFGE National President J. David Cox blasted what he called anti-federal employee rhetoric.
“Mick Mulvaney’s comments confirm what our union has been saying all along: the administration’s decision to transfer hundreds of USDA jobs from D.C. isn’t about helping federal employees do their jobs better or delivering better services to the American taxpayer,” Cox said. “Their goal is to drive out hardworking and dedicated civil servants and silence the parts of the agencies’ research that the administration views as inconvenient.”
Reps. Marcia Fudge, D-Ohio, and Stacey Plaskett, D-U.S. Virgin Islands, both chairwomen of panels within the House Agriculture Committee, said in a joint statement that Mulvaney’s comments are proof that the Agriculture Department has misled the public about this initiative.
“The report from USDA’s Office of the Inspector General is just the latest in a long line of red flags surrounding this relocation,” they said. “We are alarmed that USDA continues to proceed with this move without consulting Congress or—according to the OIG—following the necessary legal requirements. Couple that with White House Chief of Staff Mick Mulvaney’s comments over the weekend on relocations as a mechanism for staff reduction, and this whole exercise is a naked and shameless attempt to force dedicated civil servants out of their livelihoods.”
Eric Katz contributed to this report.
This story has been updated to clarify attribution of a GAO quote.