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AmeriCorps Inspector General Walpin Fired -- Some Preliminary Observations:

So President Obama has given notice that he's firing Gerald Walpin, the Inspector General of the Corporation for National and Community Service, which operates "AmeriCorps." Walpin, in the midst of a "noisy departure" from his post, alleges that he was fired for sniffing out wrongdoing of a politically connected former NBA player who has gone on to become mayor of Sacramento. The acting U.S. Attorney for the Eastern District of California, meanwhile, reportedly found that Walpin's conclusions seemed overstated and did not accurately reflect all the information gathered in the investigation. He reportedly has referred Walpin to the President's Counsel on Integrity and Efficiency (PCIE), a body established by executive orders 12301 and 12805 to handle investigations into the conduct of Inspectors General themselves.

Norm Eisen, Special Counsel to the President for Ethics and Government Reform, reportedly told Walpin last Wednesday that it was "time to move on" and he would be fired if he didn't resign. When Walpin refused to resign, the President fired him, presumably effective 30 days hence. The Inspector General Reform Act of 2008 provides that ''[i]f an Inspector General is removed from office or is transferred to another position or location within an establishment, the President shall communicate in writing the reasons for any such removal or transfer to both Houses of Congress, not later than 30 days before the removal or transfer." (Before the 2008 amendment, the IG Act of 1978 merely required notice of the reasons, not advance notice.)

In his letter to Speaker Pelosi and President of the Senate Joe Biden sent last Thursday, President Obama stated that "[i]t is vital that I have the fullest confidence in the appointees serving as inspectors general." The letter continued, "[t]hat is longer the case with regard to this inspector general." (I have not yet been able to find a PDF of the letter.) After Senator Grassley fired off a letter demanding information, Counsel to the President Gregory Craig responded that "We are aware of the circumstances leading to that [PCIE] referral and of Mr. Walpin's conduct throughout his tenure and can assure you that the president's decision was carefully considered."

The allegations of a politically motivated firing are getting all the attention, but being a Law Nerd, I wanted to focus briefly on, well, some of the nerdier aspects of the imbroglio. Some commentators have pointed to the bare statement of reasons in President Obama's letter as (1) an indication that he is hiding something, as though he could not give good reasons for the firing; and (2) questioned whether that spare statement of reasons complied with the terms of the Inspector General Reform Act of 2008, which Senator Obama cosponsored.

I suspect that a significant reason the President was very spare in his letter was to avoid setting the precedent of giving Congress detail about firing decisions. They may not admit it, but Presidents, Democratic and Republican, seek to safeguard the prerogatives of the office. They do not want Congress to expect detailed reasons for firing an IG, even if they have them. (Of course, it sometimes is advantageous as a practical matter to "keep your powder dry" so you don't have to walk back from previously proffered statements of reasons.)

Whether stating the IG lacks the President's confidence is a sufficient statement of the "reasons" for the firing is an interesting question. The Executive Branch undoubtedly construes the requirement narrowly to give the President maximum freedom of action, and so would not read the statute to require specificity in the absence of an explicit textual requirement. It would say that even a stripper statement of "reasons" such as apparently provided here gives some degree of confidence that the firing meets whatever minimal constitutional standards that govern such a decision and wasn't for a prohibited reason (race, sex, etc.). At the same time, the President's letter does not state the reasons he lacked confidence in Walpin. And saying only that the President doesn't have confidence in the official is almost tautological, because presumably the President has confidence in those officials he retains.

Related Posts (on one page):

  1. UPDATE -- The White House Provides Further Detail On Walpin Firing And Confirms Interpretation Of IG Act:
  2. AmeriCorps Inspector General Walpin Fired -- Some Preliminary Observations:
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UPDATE -- The White House Provides Further Detail On Walpin Firing And Confirms Interpretation Of IG Act:

Because of growing controversy over the firing of AmeriCorps IG Gerald Walpin, the White House has proffered additional reasons (some might say "reasons") why the President had lost confidence in him.

After Senator Claire McCaskill (D. Mo.) expressed concern that President Obama's Thursday letter saying that he had lost confidence in Walpin did not satisfy the requirements of the Inspector General Reform Act that the President provide "reasons" for the firing, presidential aide Norm Eisen (who reportedly told Walpin to resign or be fired) sent a letter to Senators Joe Lieberman and Susan Collins, the Chairman and ranking minority member on the Senate Homeland Security and Governmental Affairs Committee (with a copy to McCaskill), outlining a number of reasons Walpin was let go. It read:

Mr. Walpin was removed after a review was unanimously requested by the bi-partisan Board of the Corporation. The Board's action was precipitated by a May 20, 2009 Board meeting at which Mr. Walpin was confused, disoriented, unable to answer questions and exhibited other behavior that led the Board to question his capacity to serve. Upon our review, we also determined that the Acting United States Attorney for the Eastern District of California, a career prosecutor who was appointed to his post during the Bush Administration, had filed a complaint about Mr. Walpin's conduct with the oversight body for Inspectors General, including for failing to disclose exculpatory evidence. We further learned that Mr. Walpin had been absent from the Corporation's headquarters, insisting upon working from his home in New York over the objections of the Corporation's Board; that he had exhibited a lack of candor in providing material information to decision makers; and that he has engaged in other troubling and inappropriate conduct. Mr. Walpin had become unduly disruptive to agency operations, impairing his effectiveness and, for the reasons stated above, losing the confidence of the Board and the agency. It was for these reasons that Mr. Walpin was removed.

The Eisen letter defended the earlier, spare statement of reasons the President sent last Thursday, saying it was consistent with past practice and, as I suggested in my earlier post, consistent with the Executive Branch's reading of the statute:

We of course recognize your view of the requirements for the formal notice letter which we submitted to Congress last week. That letter was prepared based on long practice with respect to the form of such letters and the Administration's view of the statute.

Walpin denies it all, saying that the White House is "grasping at nonexistent straws" to justify his termination.

In other news, based on the description of Walpin as "confused [and] disoriented," he has been asked to take Ron Wood's spot playing guitar for the upcoming Rolling Stones tour. Although in the interests of accuracy I should that I just now made that up. (And before you start sending me vitriol-filled emails, note I'm a huge Stones and Woody fan from way back.)

UPDATE TO THE UPDATE (Wednesday night). Senator Grassley, apparently not satisfied by Mr. Eisen's proffered explanation for the firing, responded with a new letter to Counsel Gregory Craig setting forth 12 questions. Those included "Did the CNCS Board communicate its concerns about Mr. Walpin to the White House in writing?," "Was the communication about the Board's concerns on or about May 20, 2009 the first instance of any communications with White House personnel regarding the possibility of removing Mr. Walpin?," several questions about whether Walpin was asked for his response to the Acting U.S. Attorney's allegations or his version of events on May 20, "If Mr. Walpin's telecommuting arrangements since the beginning of this year were a major concern, then why was Mr. Walpin not simply asked to stop telecommuting?," and perhaps most pointedly, "If the initial and primary concern had to do with Mr. Walpin's capacity to serve for potential health reasons, why was he only given one hour to decide whether to resign or be fired?"

Senator McCaskill, meanwhile, seems more satisfied by the Eisen letter, which, she said, "now puts the White House in full compliance with the notice requirement in the [IG Act]." She said the reasons were "substantial and the decision to remove Walpin appears well founded," although she added that "[t]he next step for Congress is to use the 30 days provided by the notice [before the termination becomes effective under the IG Reform Act of 2008] to seek further information and undertake any further review that might be necessary."

Related Posts (on one page):

  1. UPDATE -- The White House Provides Further Detail On Walpin Firing And Confirms Interpretation Of IG Act:
  2. AmeriCorps Inspector General Walpin Fired -- Some Preliminary Observations:
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