In April, Bernhardt named Prandoni, only three years out of law school, to a $114,000-a-year position that’s part of the career civil service. His appointment as a judge in the Interior Department’s Office of Hearings and Appeals, which arbitrates land-use disputes, drew sharp criticism from environmental groups concerned that Prandoni would infuse ideology into decisions and undermine the panel’s integrity.
“The job that Prandoni was given was a gift; it was payment for time served,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “He never in a thousand years would have gotten this job if he hadn’t worked directly with David Bernhardt for months at a time implementing the Trump agenda.”
Prandoni, whose new job was reported over the summer by E&E News, didn’t reply to a request for comment. He is among 32 political appointees whom the administration has sought to hire into civil service positions in the first three quarters of this year, a phenomenon known as “burrowing” that occurs at the end of every administration. Congress requires the Office of Personnel Management to provide summaries of such requests, since career jobs hold over from one administration to the next and generally have more protections against partisan attempts at removal.
Burrowing has a history that traces back to civil service reforms of the late 1880s, when Congress passed a law to try to ensure that jobs were awarded on merit rather than patronage. The number of hires sought under Trump is so far roughly similar to the tally of other recent administrations.
The lists OPM provided to Congress include some recent hires who met the agency’s standards for competitive, merit-based hiring but have clearly partisan or ideological credentials. Along with Prandoni, a longtime staffer for the Grover Norquist-led small government group, Americans for Tax Reform, the Trump administration list includes a former chief of staff to conservative firebrand Sen. Ted Cruz, R-Texas, and a lawyer for energy and mining companies who got his start at a property rights think tank.
Although the incoming Biden administration has not yet addressed the issue, the party coming into the White House typically expresses concern when members of the previous administration embed themselves within agencies, where they can slow implementation of the new president’s priorities. After Trump won the 2016 election, Senate Republicans demanded weekly reports from OPM to track new transfer requests by the Obama administration. Trump’s transition adviser, Chris Christie, had earlier threatened to change civil service laws to try to dislodge any Obama loyalists who may have found their way into the federal bureaucracy.
In 2010, following public attention to a spate of burrowers from the Bush administration, OPM began requiring such appointments to be submitted for approval on an ongoing basis. Compliance hasn’t been perfect. Between 2010 and March 2016, the Government Accountability Office reported that OPM approved 78 out of 99 requests to convert political appointees into civil service jobs, but it didn’t retain enough information about the approvals for GAO to review them.
According to the Senate Homeland Security and Government Oversight Committee, in 2019 OPM approved 28 conversion requests, returned three without action and denied three. Of the total who may get new jobs in 2020, only a few have names attached, since many of the hires were still under review by OPM at the time the lists were compiled; the process is supposed to take 15 business days but is often extended. A court ruled over the summer that if OPM eventually determines the transfer was improper, the employee can be fired.
Five such moves were denied in 2020 because the agency said it “could not conclude the appointment was free of political influence and complied with merit system principles.”
The Interior Department accounts for several of the approved transfers in 2020.
Gregory Sheehan was appointed deputy director of the Fish and Wildlife Service in June 2017. (Then-Interior Secretary Ryan Zinke tried to make him director, but Sheehan lacked the position’s required scientific degree.) In that position, he opened hundreds of thousands of acres of federal land to hunting and fishing and shepherded through rules that substantially weakened protections for endangered species.
Sheehan served 14 months before resigning, a spokesman said, to spend more time with his family in Utah. But in August, after the previous director retired, Sheehan was hired for a $166,910-a-year job as director of the Bureau of Land Management’s office in his home state. Environmental groups slammed Sheehan as being too close to industry and local governments, which have long pushed for more access for mining and drilling, although as one of his first actions Sheehan canceled a set of oil and gas lease sales that had been scheduled near Arches and Canyonlands National Parks. Sheehan referred questions to an agency spokesperson, Richard Packer, who wrote in an email that the Interior Department “evaluates all candidates for career civil service positions based on their merits and qualifications to execute Interior’s mission; to which, Mr. Sheehan was selected.”
Another new BLM state director is Barry Bushue, a longtime leader of the American Farm Bureau Federation, the nation’s largest agriculture industry lobbying group. Bushue was appointed to run the U.S. Department of Agriculture’s Farm Service Agency office for Oregon in 2018. Earlier this year, he was transferred to a career position running BLM’s Oregon/Washington division — the site of fierce debates around the federal government’s authority over cattle grazing.
Susan Jane Brown, public lands and wildlife director for the Western Environmental Law Center, said Bushue’s background in agriculture does not necessarily mean he knows how to manage the diverse set of interests at play on public lands. “I don’t know why you’d put a farmer in charge of natural resources, because they’re different,” she said. She has an alternative explanation for the career appointments, given the Trump administration’s penchant for high turnover and lingering vacancies.
“Maybe they are attempting to burrow in some employees, but boy is that a little too late,” Brown said. “It seems to me that they’re simply scraping the bottom of the barrel and finding anybody with a pulse to put into some of these positions for the remainder of the lame duck.”
An Interior Department spokesperson said that the hires of Prandoni, Sheehan, and Bushue were appropriate and conducted according to standard procedures.
“This takes place in every administration despite whatever false narrative is being spun by special interest groups who are seeking to disparage the character and qualifications of these dedicated public servants,” spokesperson Benjamin Goldey said in an email.
A final high-profile political appointee converted to career status in the environmental sphere is Brandon Middleton, who got his start challenging regulations under the Endangered Species Act as an attorney for the property rights-oriented Pacific Legal Foundation. He then worked for Sen. Jeff Sessions, R-Ala., who brought him to the Department of Justice’s environmental division in 2017, where he continued to correspond with his former foundation colleagues about issues before the DOJ.
Later that year, he joined the Department of the Interior as deputy solicitor for water resources, until he was appointed to a career position as chief counsel at the Department of Energy’s Environmental Management Consolidated Business Center, which manages the contracting for cleaning up toxic waste dumps.
Neither Middleton nor the Department of Energy responded to requests for comment.
Conversion requests are typically most common at the DOJ and Department of Homeland Security, and the Trump administration has made plenty of those as well.
Among them: Prerak Shah, a member of the right-leaning Federalist Society who served as a counselor to Texas Attorney General Ken Paxton, defending cases on conservative causes celebre like voter ID laws and school prayer. He then became Cruz’s chief of staff before joining Trump’s DOJ, and earlier this year he was appointed as an assistant U.S. attorney in the northern district of Texas.
Jordan von Bokern clerked for Judge Amy Coney Barrett, recently named to the U.S. Supreme Court, before being appointed counsel in the DOJ’s Office of Legal Policy, which directs initiatives such as coordinating judicial nominations with the White House. In April, he was converted into a career trial attorney. Michael Holley was a regional director for the Florida Republican Party, helped run the 2016 GOP convention and then worked on the inauguration before being hired for White House special projects. In 2019, he was appointed White House liaison for the Department of Homeland Security, and earlier this year he became a staff action officer in the Office of Intelligence and Analysis, a career position.
Shah, Holley, von Bokern, and the Department of Justice did not respond to a request for comment.
One of the highest-profile positions went to Tracy Short, who built his career in government litigating immigration cases, mostly in Texas. In 2017, he became principal legal advisor to Immigration and Customs Enforcement as it embraced a hard line on deportations. And in July, he was appointed chief immigration judge at the DOJ’s Executive Office for Immigration Review — a prosecutor now running a court system that decides asylum cases.
Denise Slavin, a former president of the National Association of Immigration Judges who retired last year after 24 years on the bench, said that under Short, the agency has accelerated filing deadlines in a way that gives judges less discretion to consider the facts of each case.
“He just doesn’t have the courtroom experience to be a chief judge,” Slavin said.
Short referred questions to EOIR spokeswoman Kathryn Mattingly, who disputed that characterization.
“Just as former United States Attorneys are sometimes appointed to federal judgeships and former Solicitors General and Attorneys General have been appointed to the Supreme Court, there is nothing improper about appointing the former ICE Principal Legal Advisor to the CIJ position, particularly when that individual has had an extensive and exemplary career in public service, including nearly 20 years of immigration and management experience,” Mattingly wrote in an email.
Short’s position, as well as other recent Trump appointees to the immigration apparatus at the DOJ, will survive the transition. It’s possible to dislodge career employees by transferring them elsewhere, but it will take a conscious effort by an administration that’s already got 4,000 political appointments to make even before it gets to the career service jobs.
The Trump administration could speed up the replacement of civil servants before inauguration because of an executive order the president issued in October. It creates a new “Schedule F” category for career employees who have policy-making or policy-advocating roles, and it weakens their employment protections to the point where they could be booted for their political views.
Ron Sanders, a longtime federal government human resources executive who recently resigned from an OPM advisory body called the Federal Salary Council in protest of Schedule F, said the Trump administration still has plenty of time to act on that order in its final weeks.
“I have been contacted by dozens of regular civil servants slated to be converted into Schedule F,” Sanders said, “which means they could be removed with little or no procedural protection or due process. And they could be replaced by somebody else.”
Federal employee unions have supported a bill that would block implementation of Schedule F, but Sanders noted that Biden may want to keep it in place long enough to reverse any career appointments made in the waning days of Trump’s term.
Last week, House Democrats sent a letter to 61 federal agencies asking for more detailed information on political appointees who have been hired into career jobs, as well as positions newly designated as Schedule F. Senate Democrats have made similar requests to OPM, but they say that the response has been incomplete. OPM did not respond to a request for comment.
Overall, some progressive advocates don’t think the conversion of political appointees into career positions will be as deep or as influential as it was in the second term of the Bush administration, when 139 officials found their way into civil service jobs, the GAO reported. However, even a few people can make a difference.
“Bureaucrats can slow down the administration’s policy efforts. It’s minor, but the more of them there are, it’s sort of cumulative,” Hartl said.
And even if the number of conversions doesn’t seem unusually high, the types of positions are more political than in the past. But since the documents are not released publicly and so many names are redacted, it’s difficult to tell who’s ending up where until the transfer is approved. For that reason, Troy Cribb, director of policy for the nonpartisan Partnership for Public Service, thinks the OPM’s burrowing lists should be more transparent.
“Having eyes on this is part of the accountability,” Cribb said. “And not having these be public really undermines that.”
