OPM IG Patrick McFarland said in a memo to Beth Cobert that under the Federal Vacancies Reform Act, "any actions taken by you since the date of your nomination are void and may not be subsequently ratified."
OPM's IG said Beth Cobert cannot legally serve as acting director while her nomination for the permanent position is pending.
The top watchdog at the Office of Personnel Management said Beth Cobert, the agency's acting director, is legally prohibited from serving in that role.
According to OPM Inspector General Patrick McFarland, Cobert's situation runs afoul of the Federal Vacancies Reform Act. The law generally restricts officials from serving as acting heads of agencies while their presidential nominations to occupy the job on a permanent basis are pending if they haven't served as "first assistant" to that office within a year of the position becoming vacant.
President Barack Obama tapped Cobert to be acting director of OPM in July 2015, after Katherine Archuleta resigned in the wake of a devastating hack of the agency's data. At the time, Cobert was serving as deputy director for management at the Office of Management and Budget.
Obama nominated Cobert to lead the agency on a permanent basis on Nov. 10, 2015. According to McFarland, that's when the statute kicked in.
In a Feb. 10 memo to Cobert, McFarland wrote that under the act, "any actions taken by you since the date of your nomination are void and may not be subsequently ratified."
He cited a January decision by the U.S. Court of Appeals for the D.C. Circuit maintaining that the law's prohibitions on who can serve as acting agency heads apply to all officials and not just those who had served as "first assistant" to the agency head. Cobert has not served in such a role at OPM.
Her actions as acting director since her November nomination might be open to challenges in the D.C. federal district court, the IG's memo states.
White House spokesman Frank Benenati said Cobert's appointment as acting director was consistent with the law. In a statement praising her record on cybersecurity as acting OPM director, Benenati said, "We firmly believe that Acting Director Cobert is acting within the confines of the law."
McFarland struck a different tone in his memo: "Due to the severity of the issue, we are expediting our notification process and sending it to the appropriate congressional committees tomorrow."
The memo marks the latest turn in a somewhat contentious relationship between the IG and agency leaders. McFarland has accused the CIO's office of providing his team "with inaccurate or misleading information" and making it difficult for watchdogs to do their job.
The memo also comes at a critical juncture for both Cobert and McFarland, who is stepping down on Feb. 19. Her Feb. 4 confirmation hearing included questions on the agency's response to a congressional subpoena for documents related to the massive breach of OPM records that was revealed in June 2015.
Nevertheless, the Senate Homeland Security and Governmental Affairs Committee reported favorably on her nomination on Feb. 10. A date is not yet set for a vote in the full Senate.
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