This article was authored by Aaron L. Nielson, Associate Professor of Law at Brigham Young University, and Bobby Ochoa, Attorney Advisor with the Administrative Conference of the United States.
This article first appeared in the Regulatory Review's series on "Seeking to Improve Administrative Transparency and Expertise" that focuses on the ACUS Recommendations adopted at the December 2019 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
After the 1952 presidential election, political control of the White House changed hands for the first time in decades. The incoming Administration requested a list of important government positions, beginning a tradition that continues today.
After each presidential election, a congressional committee publishes the United States Government Policy and Supporting Positions, more commonly known as the Plum Book, using data from the U.S. Office of Personnel Management (OPM). The 2016 edition of the Plum Bookidentifies approximately 9,000 federal civil service positions in both the legislative and executive branches. The Plum Book serves an important purpose—it lets everyone know who runs the government.
Unfortunately, each edition of the Plum Book only offers a snapshot in time. Between editions, it can be difficult to find reliable information about who leads the federal government.
The U.S. Government Accountability Office, for instance, noted in a 2019 report that “there is no single source of data on political appointees serving in the executive branch that is publicly available, comprehensive, and timely.” To be sure, OPM maintains extensive lists of employees in federal agencies. But those lists are not published, much less published online.
Other government resources also exist, including the Official Congressional Directory and the United States Government Manual. Yet these other sources also quickly become outdated as individuals leave old jobs and start new ones. Alternatively, interested individuals can turn to private publications and subscription services that attempt to list government officials, but these resources can be expensive and inaccessible.
As a result, it often is the case that the only realistic way to learn about who is leading an agency is through news coverage, which is not comprehensive and often only addresses the highest-level officials. Indeed, in her important 2019 report to the Administrative Conference of the United States (ACUS) on the Federal Vacancies Reform Act of 1998, Anne Joseph O’Connell specifically highlighted this lack of data.
Given the importance of providing the public with information about federal officials, the federal government can and should do a better job of making basic information about high-level officials easily available. Members of the public, White House officials, congressional officials, and officials at federal and state agencies, as well as reporters, would all benefit from updated agency websites and a centralized database.
The federal government can readily provide this information without breaking the bank. The government already regularly collects this information. It just often is not made public.
In light of this problem, ACUS adopted a new recommendation in December 2019, entitled Public Identification of Agency Officials, that encourages agencies to identify and publish updated information about significant leadership positions on their websites. In particular, ACUS recommends that agencies provide information about three categories of positions: (1) Senate-confirmed, presidentially appointed positions (“PAS” positions); (2) other presidentially appointed positions (“PA” positions); and (3) Senior Executive Service positions assigned significant leadership responsibilities (“SES” positions).
Agencies can comply with the ACUS recommendation by displaying important identification information on their websites. Similarly, ACUS urges agencies to identify vacant positions and positions filled by acting agency officials. Because many people turn to agency websites for information, it makes sense that those websites should be complete and accurate.
At the same time, ACUS recommends that OPM, which already collects this information, regularly publish information on its website about all PAS, PA, and SES officials, and also create a list of former PAS officials.
Publishing information about these categories of agency leaders is a good place to start because these officials are responsible for the success of various programs and policies. By design, PAS officials “are often the most visible political appointees.” These high-ranking officials are also subject to special rules that govern their activities. Because they are so significant, members of the public should be able to identify PAS officials quickly and with confidence.
Similar considerations apply to PA officials, who are also appointed by the President to exercise political leadership and who “typically resign during a presidential transition.” Like PAS officials, PA officials are often subject to special rules and restrictions. These individuals, however, make upthe “next layers of the executive branch,” which the public is less likely to learn about through news coverage.
Finally, the Senior Executive Service includes numerous individuals “who often direct and monitor the activities of agencies; supervise the work of federal employees; exercise ‘important policy-making, policy-determining, or other executive functions;’ and are held accountable for the success of programs and projects.” The public also should be able to identify who these officials are and their positions.
As the United States approaches the next presidential election, the government will again publish the Plum Book at the end of 2020. Regardless of the election’s outcome, there will be significant turnover in federal leadership positions. When it comes to government leadership, transparency is essential. The commonsense solutions proposed by ACUS are a small but meaningful step toward helping the public know who is in charge.