Senator seeks probe of 'burrowing' CFPB fed

A Republican senator is asking the Office of Special Counsel to investigate the circumstances surrounding the conversion of Leandra English from an Obama-era political appointee at the Office of Personnel Management to a career official at the Consumer Financial Protection Bureau.

Sen. Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee, sent a letter to Special Counsel Henry Kerner Dec. 4 flagging what he believes was an improper approval by OPM to convert a senior political appointee into a career position, a practice known as "burrowing in."

"Burrowing threatens to undermine the merit-based principles that serve as a foundation of the civil service because it allows political staff to be favored over potentially more qualified candidates," wrote Johnson.

The letter goes on to highlight a number of concerns related to conversion and alleges that OPM conducted an insufficient vetting process and acted "hastily" in granting approval despite English's status as a senior political appointee.

English is a key player in a jurisdictional fight with the White House over leadership of the agency when retiring director Rob Cordray named English as his successor. The Trump administration designated Office of Management and Budget chief Mick Mulvaney as head of CFPB. A lawsuit filed by English challenging Mulvaney's appointment is ongoing. English and her supporters argue that CFBP's charter in the Dodd-Frank Act gives the director the right to appoint an acting director before stepping down, while the Trump administration claims authority for the appointment under the Vacancies Act.

The fight has strong political overtones, with Democratic supporters of the CFPB and its mission as an independent regulator and part of the Federal Reserve pushing back against Trump's appointment of Mulvaney. In general, Republicans opposed the creation of the CFBP and its expansive mandate to regulate financial products, and Mulvaney was particularly critical of the agency when he was a congressman.

"Based on the information that OPM provided to the Committee, it may be appropriate for the Special Counsel to review whether the conversion of Ms. English…adhered to the merit system principles," wrote Johnson.

Burrowing is not rampant but not altogether uncommon either, as both the Obama and Bush administrations saw dozens of political appointees converted to career civil servants during their tenures. However, it has drawn complaints from lawmakers in both parties over the years who worry about its potential for circumventing the competitive hiring process, and since 2010 OPM has required agencies to seek approval in advance for such conversions.

Zach Regen, a fellow at the Partnership for Public Service, wrote in December 2016 that watchdogs like GAO have conducted multiple studies on burrowing over the years and "has never found the practice to be widespread."

"While there is potential for abuse of political appointees converting to career jobs, the evidence to date from the GAO studies suggests the practice given the number of appointees and the size of the federal workforce, has been limited, and that abuse of the process has not been a major issue," wrote Regen.

Some federal agencies have expressed confusion about proper protocols. A September 2016 Government Accountability audit found at least 17 conversions of political appointees to career positions that were undertaken between 2010 and 2015 without first requesting approval from OPM. Agencies cited "difficulties understanding OPM's policy...as a reason for not seeking prior approval."