By William Wiley, June 14, 2017

Oh, so many questions do we get. And this one is asking to peer into the secret world of political appointment.

Dear FELTG Know-it-Alls:

I have a question about something you posted in your 5/24/17 post entitled, “Big News in Whistleblower Land.”

Your post stated that Principal Deputy Special Counsel Mark Cohen is set to become Acting Special Counsel after June 14–the end of Special Counsel Lerner’s holdover period.  However, how are political appointees like Mr. Cohen permitted to stay beyond the tenure of the politically-appointed agency head?

My recollection is that all of the political appointees under the last two Special Counsels left when the agency head left.  That office did not have any political appointees again until Ms Lerner joined OSC in 2011.  I don’t understand why it would not be the same with Ms Lerner.  Thank you for any clarification you can provide. 

Best regards, A Confused Reader

And our always-insightful FELTG response:

Dear Confused Reader-

There’s nothing automatic about the end of a political appointee’s status as an employee. When a new agency head replaces the outgoing political appointee, the fates of the remaining political appointees are in the hands of the new appointee.

For example, I was a political appointee under the Chairman at MSPB. When his term expired, the Vice Chairman automatically became the Acting Chairman. She asked me to stay around as an adviser to her, which I did. I’ve known of political appointees who have held over like that under six different agency heads, serving as a political appointee under five Presidents for nearly 30 years.

At OSC, there is no individual identified to automatically replace the Special Counsel once her term is up. Therefore, it is up to White House personnel to decide who will be the acting agency head. They could have picked an old senior career guy who then would have decided what to do with the holdover political appointees. Instead, the White House chose to appoint a holdover political appointee, Mark Cohen.  If Henry Kerner is confirmed as the new Special Counsel, he will then decide what to do with the Obama holdover politicals.

Many subordinate political appointees realize that their time is short when an agency head departs. Smart ones start looking for replacement employment long before that happens, as there’s no way to tell what will happen when the new agency head arrives. That’s why you often see the whole team of political appointees leave an agency when the agency head leaves. They are reasoning that it is better to control one’s own fate than to leave it up to vagaries of the political processes.

Want to be a political appointee at OSC? Now’s your chance. Make friends with Henry Kerner and you could well be the new deputy (if your politics are right).

Best of luck. [email protected]

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