U.S. EPA Administrator Scott Pruitt used a unique hiring authority to bring on several political staffers, including top deputies in programs across the agency.
Documents obtained by E&E News under the Freedom of Information Act detail "administratively determined" hires under the Safe Drinking Water Act, showing that at one point last year, at least 20 officials were brought on under the hiring provision.
Several deputy assistant administrators — top political officials for EPA programs — like Nancy Beck, Patrick Davis, Dennis Lee Forsgren and Richard Yamada were listed once as administratively determined hires. Other close advisers to Pruitt were also in that category, including several associates and former aides of his when Pruitt was Oklahoma attorney general like Lincoln Ferguson, Millan Hupp, Sarah Greenwalt and Kenneth Wagner, according to records.
The hiring authority has been used at EPA by prior administrations. It can help an EPA chief fill out his or her staff quickly since administratively determined (AD) hires do not undergo the usual civil service hiring process. The agency can hire up to 30 employees in AD positions under the authority.
"The Safe Drinking Water Act provides the EPA with broad authority to appoint scientific, engineering, professional, legal and administrative positions within EPA without regard to the civil service laws," EPA spokesman Jahan Wilcox said. "This is clear authority that has been relied on by previous administrations."
Stan Meiburg, who spent 39 years at EPA, including as acting deputy administrator in the Obama administration, said, "It has been done by both parties, so it has been ratified over time. … These are highly prized positions because you can bring people in without having to go through the usual competition process."
Meiburg remembered both the George W. Bush and Obama administrations having AD hires. He recalled some of those hires landing as political aides to EPA regional chiefs during those administrations. Meiburg said it made sense that the Trump administration would use the hiring authority for political aides like press officials and schedulers to assist Pruitt.
"Those are pretty specialized skills, and there are folks in the political field who have those skills," said Meiburg, who now teaches at Wake Forest University. "That’s not to say you don’t need a good solid career staff in public affairs, as well."
But Meiburg found it noteworthy that Pruitt had used the hiring authority to bring on deputy assistant administrators.
"The use of the AD authority to bring on a political deputy is a little unusual," Meiburg said. "Most of the AD appointments are at a lower level. You usually have a non-career SES be a political deputy."
Like lower-level political aides, the deputy assistant administrators don’t require Senate confirmation. But assistant administrators, just above the deputies in rank, run EPA program offices and do need Senate approval.
The administratively determined hires have grabbed attention recently after The Atlantic reported yesterday that Pruitt used the hiring authority to give substantial pay raises to two officials against White House wishes. EPA has since alerted the White House.
EPA’s Wilcox said in a statement, "The Administrator was not aware that these personnel actions had not been submitted to the Presidential Personnel Office. So, the Administrator has directed that they be submitted to the Presidential Personnel Office for review."
That move sparked scorn from Rep. Dan Kildee (D-Mich.), who represents Flint, still struggling with the aftermath of a drinking water crisis.
"EPA Administrator Pruitt’s actions are shameful and an insult to the people of my hometown of Flint. Rather than hiring scientists, engineers and experts to work to solve drinking water contamination issues, Scott Pruitt is using public money to instead give huge pay raises to his political friends," Kildee said.
Pruitt’s aides brought in as ADs also raised eyebrows last year.
Since AD hires are not technically political appointees, they don’t have to sign President Trump’s ethics pledge, leaving them free to talk to prior lobbying clients and employers. Beck and Byron Brown, EPA’s deputy chief of staff for policy, both have ethics documents saying they didn’t have to sign the pledge (Greenwire, March 20).
The ethics controversy attracted scrutiny from Democrats on Capitol Hill. The EPA inspector general soon initiated an audit of the AD hires, which is ongoing. The Government Accountability Office also launched a similar probe but put that on hold in order not to duplicate the IG’s efforts.
The records, dated March 2017 and later July that year, also indicate some of Pruitt’s top aides converted into more standard political appointees.
Forsgren, deputy assistant administrator in the water office, became a political appointee after being brought on first as an AD. He also signed Trump’s ethics pledge.
Tate Bennett, head of EPA’s public engagement office, was also listed as "administratively hired" at one point. She, too, signed the ethics pledge.
Others have moved elsewhere. Davis, another AD hire, is no longer a deputy assistant administrator but a senior adviser to the Region 8 administrator in Denver.
EPA press officials did not provide E&E News with the current number of AD hires at the agency.
At issue: 1977 amendments
After passing the Safe Drinking Water Act in 1974, lawmakers soon realized that local utilities needed more training and expertise in order to enforce the drinking water standards the law had required EPA to promulgate.
The 1977 amendments were the first of what would be numerous changes to the law, but are generally considered relatively minor because they did not mandate any major changes to drinking water contaminant regulations.
Instead, the changes focused on ensuring EPA and local water utilities had the resources they needed to write and uphold new standards.
"In this age of sophisticated technology, manned flights to the moon and instrument landings on Mars, it is astounding that our drinking water is plagued by contamination," Rep. Paul Rogers (D-Fla.) explained on the House floor in July 1977. The amendments, he said, "are designed to help remedy the ills faced by our drinking water systems."
The law empowered EPA to provide technical assistance to states and localities, and gave the agency funding to train personnel.
The law also allowed EPA to hire "not more than 30 scientific, engineering, professional, legal and administrative positions within the EPA without regard to the civil service laws." The personnel would help not just with administering the Safe Drinking Water Act but also with "other provisions of law."
That language resulted from a compromise between the House and Senate, which initially sought to add 150 such positions.
Sen. Jennings Randolph (D-W.Va.) said on the floor in November 1977 that 150 appointees would "augment the agency’s cadre of senior management and scientific personnel," which he said were "substantially smaller in proportion to Agency size than that of other federal agencies which carry out similar regulatory functions."
But after consulting with the House, the Office of Management and Budget, and the Civil Service Commission, Congress decided to allow just 30 appointees without regard to civil service regulations, but agreed to add 80 personnel to EPA under normal regulations.
That compromise, Rogers said, was the result of "extensive discussions and negotiations … to determine the most critical needs for additional personnel and the most effective way of providing appointment authorities to meet those needs."
Pruitt is not the first EPA administrator to take advantage of the provision. Ken Kopocis, who led EPA’s Office of Water during the first half of the Obama administration, said the provision was well known within EPA and has been used through the years.
"We used it to hire people who were well-experienced experts in their fields so that it could help augment, at the more senior levels of management, our ability to carry out our job," Kopocis said.
Those hired using the provision, Kopocis said, were experts in a variety of subjects, not just drinking water. He could not remember how many personnel were appointed under the position, and would not name those who had been hired as a result of it.
But, he said, the Obama administration’s use of the provision differed from the Trump administration’s.
"Our people worked in their field for a long time. Nobody would question their substance expertise on these issues," he said. "These were true professionals that fit more in the mold of what the provision of the Safe Drinking Water Act was designed to do, which is bring in people on an as-needed basis to help implement the Safe Drinking Water Act and other laws as well as you could."
Kopocis also said, to his knowledge, the Obama EPA never "recategorized someone" under the Safe Drinking Water Act provision "simply so we could give them a raise."
"If anyone got moved," he said, "it was to move into a new position where they had new responsibilities."