GAO: SSA chief has been 'acting' too long

The Baltimore headquarters of the SSA. (Photo credit: Mark Van Sycoc/Shutterstock.com)

For the first time, an acting senior official elevated under the Trump administration has been cited for holding down a political job longer than allowed under the Federal Vacancies Reform Act.

“The service of Nancy A. Berryhill as Acting Commissioner at [the Social Security Administration] after November 17, 2017, is in violation of the Act,” the Government Accountability Office wrote in a March 6 letter to President Donald Trump. “However, SSA can provide for performance of the delegable functions and duties of the Commissioner position in accordance with the Memorandum of Succession or other applicable authority.”

The Federal Vacancies Reform Act limits officials acting in politically appointed roles to 210 days of service, plus an addition 90 for incoming administrations, with a few exceptions.

For an official assuming an acting role on day one of the Trump administration, as is the case with Berryhill, that end date occurred in mid-November.

After this deadline, any statutory authority vested in the official devolves to the agency head, and decisions made by acting officials beyond the period called for under the Vacancies Act are not valid under the terms of the law. The administration can offer other authorities to support the continued functioning of an official acting as agency head.

The Trump administration has been historically slow in filling politically appointed positions, and agencies governmentwide still have acting personnel in senior leadership roles. According to an appointments tracker maintained by the Partnership for Public Service and the Washington Post, only 276 nominees have been confirmed out of the 639 key positions, with 143 awaiting confirmation. Another 216 positions have no nominee at all.

SSA hasn’t had a permanent, Senate-confirmed commissioner since Michael Astrue left in February 2013.

“Social Security’s just too important to continue to leave on autopilot,” Chairman Sam Johnson (R-Texas) said at a March 7 hearing of the House Ways and Means Subcommittee.  “That’s why today I, once again, ask the president to please nominate a commissioner without delay…. We need a nominee and we need one now.”

However, Valerie Brannon, a legislative attorney at the Congressional Research Service, testified the statutes surrounding the SSA commissioner may not be so cut-and-dry as GAO’s interpretation.

“There are some complicated statutes that govern this vacancy,” said Brannon, pointing to possible conflicts between the Federal Vacancies Act and Section 702 of the Social Security Act. “It is hard to reach any definite conclusions.”

In the event the acting commissioner’s service is a violation, Elizabeth Curda, director of education, workforce and income security at GAO, testified SSA would need to determine if any actions taken by the acting head “could only be performed by the commissioner and nobody else.”

“Any such action taken in violation of the act would have no force or effect, and may not be ratified,” she continued. “Where violations have occurred in the Vacancies Act, it is the agency’s responsibility to determine if any actions taken were non-delegable.”

Max Stier, president and CEO of the Partnership for Public Service, pointed out that none of the three Senate-confirmed positions within SSA -- deputy commissioner and inspector general are the others -- are in place. Of those, only the IG has a nominee.

“This is an issue that actually extends beyond Social Security, but clearly is a big issue here as well,” he said. “No administration has staffed quickly. This administration is well behind prior administrations.”