President Barack Obama was widely acclaimed for nominating acting Office of Personnel Management Director Beth Cobert to serve as permanent director on Nov. 10. But his pick also means that everything that OPM has done since that day is null and void.
As first reported by FCW's Sean Lyngaas, OPM inspector general Patrick McFarland sent a letter to Cobert informing the acting director that her nomination means that she cannot simultaneously serve in her current role.
But there's more: Because Cobert has continued serving as acting director since Nov. 10, every action she has taken is automatically null and void and cannot be ratified, effectively wiping scores of official actions completely off the books. Furthermore, a new director will not be able to carry out Cobert's actions, since they can't be ratified.
The conflict arises from the Federal Vacancies Reform Act, which provides methods for the president to appoint temporary officials to Senate-confirmed positions.
The FVRA requires acting directors to either come from the "first assistants" at the agency in question, appointed from another agency or a SES employee from the agency who is promoted to an acting role.
But under the FVRA's section 3345(b)(1), an appointee can't serve as acting director if they did not serve as a first assistant at the agency in the year prior to appointment or "the president submits a nomination of such person to the Senate for appointment to such office."
Cobert was appointed to serve as acting OPM director on July 10, 2015, after previously serving as Deputy Director for Management of the Office of Management and Budget.
But because Cobert had come from another agency when Obama nominated her on Nov. 10 to become permanent director, the FVRA prohibited her from remaining acting director.
The OIG's office said, in a statement, that McFarland discovered the discrepancy following his announcement of pending retirement on Feb. 1.
"We began researching the OIG's responsibilities under the Federal Vacancies Reform Act (FVRA). That's when we discovered this problem," said OPM OIG senior counsel for Legislative & External Affairs Susan Ruge, in an email.
McFarland cites an Aug. 7 D.C. Circuit ruling, SW General, Inc. v. National Labor Relations Board, where the court determined that section 3345(b)(1) applies to all acting officers, meaning Cobert couldn't serve as acting director once nominated.
"Therefore, under the FVRA, any actions taken by you since the date of your nomination are void and may not be subsequently ratified. Consequently, these actions may be open to challenges before the federal district court for the District of Columbia," McFarland said in the letter.
So every decision Cobert has made after Nov. 10 legally never existed. This includes actions like the proposed National Background Investigations Bureau, guidances for SES reform and a host of other measures.
OPM officials were not immediately available for comment.
