Relations between EPA and its inspector general took another hit today as the agency's watchdog office issued a new report taking aim at Chief of Staff Ryan Jackson.
EPA's Office of Inspector General blasted the agency over Jackson's refusal to disclose to auditors who leaked him congressional testimony. The episode was already part of a rare warning from the IG, the "Seven Day Letter," which the watchdog office sent in late October.
Today's report, signed by acting EPA IG Charles Sheehan, looked into whether Jackson may have interfered with testimony by Deborah Swackhamer, then-chairwoman of EPA's Board of Scientific Counselors, more than two years ago. At the time, the board had come under intense media scrutiny after EPA did not renew the terms of some of its members.
The report also reviewed whether EPA staff in the administrator's office received whistleblower training against intimidating people who testify before Congress.
The IG office had tough words for how EPA responded to the report after it relied upon legal advice for Jackson not sharing information with the inspector general.
"There is recklessness in such views. Should they take root, they convert the IG Act into a no man's land whereby agency staff — under the borderless banner of 'constitutional concerns' — may create wholesale exemptions from providing information to the OIG," said the report.
The IG office said that the agency had not objected to the IG's plans to review the matter with Jackson until its hand was forced by the Seven Day Letter. Further, EPA leadership has undermined the watchdog office.
"This diminution of the OIG's authority by current agency leadership is fallacious, factually and legally," said the report.
The IG questioned how EPA's current stance fits with a memo sent by Administrator Andrew Wheeler in August 2018 encouraging cooperation with the watchdog office as well as the Inspector General Act.
"If the Associate Deputy Administrator and General Counsel position of 2019 stands, the IG Act falls," said the report.
EPA Associate Deputy Administrator Doug Benevento and Donna Vizian, who leads the Office of Mission Support, responded to the report, disputing some of the assertions, including the claim that Jackson had not complied with the IG act nor Wheeler's guidance.
They quoted a Nov. 8 legal opinion by EPA General Counsel Matthew Leopold, saying, "separation of powers between the executive and legislative branches support the Agency, not OIG, as having ultimate control of how to accommodate information requests by Congress."
"How Congress takes testimony or from whom it receives final testimony is not a proper area of inquiry for OIG," said the opinion. "The OIG can only operate within its statutory limits and not occupy the policy role given to the Administrator in EPA's statutes or upend EPA's right to manage its communications to Congress."
EPA added in their response, "While OIG may not concur with this legal opinion, failing to refer to it leaves the impression that the Agency has no basis for this position, which could mislead the public and Congress when the memo becomes public."
In response to today's report by the IG, EPA spokeswoman Molly Block said the general counsel's office found no violations of the IG Act.
"While the OIG may not agree with this legal opinion, it is irresponsible to imply that the Agency, or employees of the Agency, have violated the Act," Block said.
"The hyperbolic nature of this report further supports our response just a month ago that the Acting IG's actions — including moving forward with the Seven Day Letter — are troubling in light of the assistance the agency provided and wholly undermines the cooperative and iterative relationship that EPA has shared with its OIG."
Interactions between Jackson and Swackhamer were central to today's IG report.
Before her appearance at a House hearing in May 2017, Swackhamer received an "embargoed" copy of her testimony from Jackson, who wanted to discuss it.
The IG office, which announced that it planned to conduct the review in August, said Jackson has refused to tell its staff who gave him the testimony both in an interview and in writing.
After more attempts to secure that information, Jackson responded in an email saying, "I am not going to involve others or point fingers. ... Welcome to Washington," which was quoted in today's report.
Jackson's lack of cooperation helped spark the IG's Seven Day Letter (E&E News PM, Nov. 6).
Also as part of its report today, the IG found that all EPA employees, including political appointees, are required to complete whistleblower protection training. That training is provided by the Office of Special Counsel but does not address how to treat those giving congressional testimony.
EPA sought that change in its response to the report, which the IG obliged.
"Nonetheless, we modified our report to clarify that the required OSC training did not specifically address interfering with or intimidating individuals who seek to communicate with or testify before Congress," said the report.
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