By Anne Polansky
CSPW Sr. Climate Policy Analyst
“Secretary Zinke, you should resign effective immediately,” federal whistleblower Joel Clement wrote in a CNN opinion piece published yesterday evening. After seven years of public service, Clement left his Senior Executive Service (SES) post at the Department of Interior (DOI) last week after submitting a fiery letter of resignation (see our two posts, here and here). After blowing the whistle in July, Clement has been openly and fiercely critical of Secretary Zinke, Deputy Secretary David Bernhardt (a former oil industry lobbyist), and President Trump. The primary point of contention stems from Clement’s abrupt, involuntary reassignment to an office that collects oil company royalty checks from his post as top policy advisor, where he focused primarily on the deleterious effects of climate change on Alaskan communities. Clement, a biologist, was ill-equipped for the role assigned to him because it required sophisticated accounting skills, and he has expressed a strong reluctance to waste the taxpayer dollars needed to train him.
Despite accusations of air travel abuses, the chances that Secretary Zinke will resign are slim to none, and there is no indication that President Trump will ask him to leave. The stronger imperative, regardless of who holds office, is to hold accountable federal officials for any documented wrongdoing. Clement’s courageous actions and words to date highlight the urgent need for critically important checks and balances on Executive Branch overreach. Several important investigations into Clement’s transfer and that of many others at Interior are underway and must continue. At this point, it is critical that we strenuously exercise the checks and balances so central to the US Constitution in order to avoid a dangerous imbalance of power – the sort of imbalance that history teaches us can too easily lead to tyranny.
All politics aside, to the extent that Secretary Zinke and other high-level officials at DOI may have broken the law – regardless of whether they stay or go – they must be held accountable. Already, one US District Court judge has reversed one of many rollbacks Zinke has ordered; almost all of which, so far, have served to lessen environmental protections while increasing opportunities for using federal lands to drill for oil and gas. Some see these actions as a blatant fossil fuel industry land-grab. Given the current political dynamics at play – and the apparent, widespread disregard for established rules of law and the troubling blanket dismissal of certain scientific facts (especially around climate change and its impacts) – a well-functioning judicial branch is absolutely essential now. Moreover, important oversight mechanisms installed in the executive branch over time, including rules enforcing a variety of important whistleblower protection laws – laws that GAP has championed and played a leading role in developing – must be put to full use if we are to preserve our democratic system of government. It doesn’t hurt to remind ourselves, once again, that we live in a nation of laws.
Upon receiving a formal complaint from Clement’s legal counsel, the federal Office of Special Counsel (OSC) is investigating the potential illegality of Joel Clement’s transfer. Transferring SES employees in an underhanded attempt to convince them to quit is disallowed. Many, including Clement, suspect the transfers were a politically-motivated effort to curtail DOI programs focused on environmental protection and restrict fuel extraction and mining activities. Moreover, at the request of Senator Maria Cantwell (D-WA), the DOI Office of Inspector General (OIG) is investigating all 50 or so of the SES reassignments ordered in June, amounting to nearly one-fifth of the entire DOI SES workforce. So far, Clement is the only SES employee reassigned to speak out publicly and file a formal complaint; whether and when others who are victims of these mass-transfers will come forward remains to be seen.
Seeing these investigations through and then enforcing appropriate legal remedies is paramount. Other members of the Trump Administration should also fall under close scrutiny, including Interior Department Associate Deputy Secretary James Cason, a former official for the Reagan and both Bush Administrations, thought to be “ the “key architect” of many of the transfers (see New York Times, July 25, 2017, “As Interior Secretary Swaggers Through Parks, His Staff Rolls Back Regulations”).
Another person of interest is George David Banks (LinkedIn profile), Special Assistant to the President for International Energy and Environment. Banks has served in several Republican administrations and most recently was employed as a registered lobbyist by the American Council for Capital Formation (ACCF). According to a profile created by DeSmog Blog, ACCF has received at least $1.6 million from the Exxon Mobil Corporation for “climate change activities,” and Koch brother foundations have paid the group $600,000 between 1999 and 2015.
Climate change, a scientifically-proven phenomenon caused by anthropogenic global warming as result of carbon dioxide and other greenhouse gas emissions, has become more politicized and more polarizing in the United States than anywhere else. This is an unfortunate reality that hampers policymakers from making any progress toward shifting away from a fossil-fuel based economy. We have known this for decades. However, the current administration is filled with climate deniers. Our nation’s overall failure to adequately plan for the repercussions of climate change is now coming to haunt us in devastating ways. As major swaths of California are burned to a crisp, and as Hurricanes Harvey, Irma, and Maria brought death and destruction to Texas, Louisiana, Florida, and Puerto Rico, Americans are reminded that these so-called “natural disasters” have unnatural components to them that are caused by humans. More importantly, they are somewhat preventable. The US Supreme Court has ruled repeatedly that carbon dioxide, for law-making purposes, must be considered a pollutant under the Clean Air Act and can thus be regulated. These facts of law and science are far from “fake,” they are as real as gravity.
Representative Elijah Cummings (D-MD), Ranking Minority Member of the House Committee on Oversight and Government reform, not only supports the ongoing investigations but is initiating one of his own. In an October 6, 2017 letter (.pdf) to Secretary Zinke, Representative Cummings expressed concern over the June reassignments, warning:
“The use of personnel reassignments to punish employees you believe are not “loyal” or try to drive employees to leave the Department could constitute prohibited personnel practices that violate the merit systems protections set forth in 5 U.S.C. §2301.”
In this letter, Cummings stated that Joel Clement reported in his complaint to the OSC that he suspects communications he had with George Banks – regarding his concerns for Alaska Native communities he believes are imminently threatened as a result of higher temperatures and sea level rise associated with climate change – may have led, in whole or in part, to his reassignment. Cummings reiterated Clement’s concern that Banks may have helped to bring about his reassignment, and went further, adding that in so doing Banks may have violated the terms of a Trump Executive Order prohibiting former lobbyists who go to work for the Administration from participating in “any particular matter” on which the individual lobbied. A full investigation into Banks’ role in this matter is fully warranted and must be part of OSC’s inquiries on behalf of Joel Clement. Representative Cummings included in his letter a request for a specific set of documents that could shed light on the motivation for Clement’s transfer and that of so many others. His letter warns:
“[I]t is a violation of the Whistleblower Protection Act [a comprehensive law GAP has been instrumental in bringing about] to reassign employees in retaliation for protected disclosures that they reasonably believe are evidence of substantial and specific dangers to public health or safety.”
This matter also deserves formal Congressional oversight hearings, including by the House Committee on Oversight and Government Reform, chaired by Representative Trey Gowdy (R-SC), an attorney and former prosecutor. Regardless of party affiliation, White House and other administration officials should be held to the same standards and should receive proper Congressional oversight. Though Representative Cummings did not request such a hearing, he did send a letter (.pdf) to Chairman Gowdy on October 5 requesting oversight hearings exploring the overall negative effect on government performance across several agencies and departments as the result of Trump Administration restrictions on hiring. An extremely low hiring rate combined with a large and growing number of federal employees who have elected to quit their jobs since January are generating concern that the federal workforce is suffering from a “brain drain” that is compromising the government’s ability to carry out important functions.
Notably, although Joel Clement has resigned his post, the OSC investigation into his formal complaint will continue, as will that of the DOI OIG. If it is confirmed that Secretary Ryan Zinke has engaged in a prohibited personnel practice, he must resign, according to Government Accountability Project (GAP) Executive Director and CEO Louis Clark.
“It is not acceptable to transfer SES managers in an effort to force resignations, either for political reasons or because the Secretary denies the scientific consensus around climate change. The Secretary can believe the moon is made out of green cheese all he wants, but he cannot put those beliefs into personnel actions to harm those with a more normative view of reality.”
GAP’s Louis Clark also brings a valuable historical perspective to the large batch of SES staff transferred: the move is right out of an old political playbook, he says, something called the “Malek Manual” named after Fred Malek, a personnel director at the Nixon White House. Malek had designed and implemented a crude, far-reaching program using dubious methods to get rid of federal career employees deemed disloyal to President Nixon. According to Clark, he recalls a time when those employees targeted by the White House were moved across the country, transferred to jobs for which they were unqualified, or to jobs that had no duties associated with them whatsoever, and were thus effectively isolated from the functional bureaucracy. Sound familiar?
“GAP helped design some of the most noteworthy Watergate reforms,” Clark says, “including the Civil Service Reform Act of 1978.”
This law established broad, new whistleblower protections for all civil servants and created the elite Senior Executive Service category. Ironically, the original idea behind creating the SES was to create a layer of top-level professional managers who could run the government and challenge undue political influence on implementing agency responsibilities under the law. That SES-ers are now the ostensible victims of political influence is just another Orwellian fact of today’s political system.
Challenging undue political influence is precisely what Clement is doing, and rightfully so. CSPW, together with GAP, stands firmly by Joel Clement. GAP’s seasoned attorneys, with 40 years of experience protecting and assisting whistleblowers from all walks of life, will be continuing to support his cause and that of any other courageous souls who, perhaps newly inspired by Clement’s bravery, stand up, fight back, and speak truth to power.
CSPW Senior Climate Policy Analyst Anne Polansky has 30 years of experience in public policies relating to energy and the environment, with a strong focus on climate change and renewable energy. She is a former Professional Staff Member of the House Committee on Science, Space and Technology.