Internal watchdog: Acting OPM director not eligible for post

AP News
Posted: Feb 17, 2016 7:01 PM

WASHINGTON (AP) — The acting director of the federal Office of Personnel Management is not legally allowed to hold that position, the agency's internal watchdog says.

Beth Cobert is serving as acting head of the agency as her nomination to be director is pending before the Senate. According to a letter dated Feb. 10 from OPM's inspector general, she is prohibited from holding the acting job because of a recent court decision.

"Any actions taken by you since the date of your nomination are void and may not be subsequently ratified," wrote OPM Inspector General Patrick McFarland.

It's unclear whether the inspector general's letter will lead to immediate changes at the agency. Senate confirmation would erase any legal issues surrounding her eligibility to lead the department, and the White House is disputing McFarland's legal interpretation. The Senate Homeland and Governmental Affairs Committee approved her nomination in a vote last week, sending it to the full Senate.

"We firmly believe that Acting Director Cobert is acting within the confines of the law," said White House spokesman Frank Benenati in a statement.

President Barack Obama nominated Cobert to replace Katherine Archuleta, who resigned in July after hackers stole Social Security numbers, health histories and other highly sensitive data belonging to more than 20 million people. Cobert has been acting director since July.

McFarland said in the letter that Cobert was eligible to become acting director in July, because she was deputy director of the Office of Management and Budget, a position that is confirmed by the Senate. But due to a 1998 law called the Federal Vacancies Reform Act and a recent court case involving that law, she became ineligible for the acting director position as soon as Obama officially nominated her to become director on Nov. 10.

McFarland said she is prohibited under law from being acting director because she was never a "first assistant" to the OPM director.

Benenati said Cobert was named acting director consistent with the Federal Vacancies Reform Act. He said that since that law was enacted, presidents of both parties have relied upon the Justice Department's interpretation of the law when appointing people to serve in acting roles while their nominations are pending before the Senate. "The administration continues to rely upon that guidance," Benenati said.

He urged the Senate to "move without delay" to confirm her as director.

The nomination faces challenges, however. Louisiana Republican Sen. David Vitter has threatened to hold up Cobert's nomination over issues related to the health care law. He has objected to Obama administration rules dealing with coverage for members of Congress and staffers.

Also, a House panel is subpoenaing Cobert over documents related to the data breach. House Oversight and Government Reform Committee Chairman Jason Chaffetz, R-Utah, said Cobert is "not working in good faith with the committee" as Republicans investigate the data hack.

Wisconsin Sen. Ron Johnson, the chairman of the Senate Homeland and Governmental Affairs Committee, has supported her nomination, but has said she must be more forthcoming with documents related to the breach for congressional review.

"I believe that she must fulfill her commitments to me to cooperate with outstanding congressional oversight requests," Johnson said Wednesday. "Once she fulfills these commitments, I expect the Senate to consider her nomination promptly."


Follow Mary Clare Jalonick on Twitter at