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January 04, 2011

Appeals Court Rejects Walpin's Appeal Over Unlawful Firing

The rules about firing an Inspector General were supposed to give him insulation from political blowback for embarrassing politicians. This is the whole point of the posting. If an IG does not have some amount of independence -- bright-line law-protected independence -- then he's just another at-will employee serving at the pleasure of his boss.

And how many at-will employees buck their bosses? Not many.

But that's what an appeals court has decided, establishing a new legal principle, There is no "I" in independent.

If you don't remember, Walpin was IG for AmeriCorps and began asking some embarrassing questions:

In June 2009, Walpin was the inspector general for the Corporation for National and Community Service, which oversees the AmeriCorps service program. He had been aggressively investigating the misuse of $800,000 in AmeriCorps grant money given to a program run by Kevin Johnson, the mayor of Sacramento, California who also happens to be a prominent Obama supporter. As a result of Walpin's investigation, Johnson was, for a while, suspended from receiving any new federal grants. Later, an acting U.S. attorney who was seeking a post in the Obama administration refused to pursue the Johnson matter. Inside the Corporation, Walpin expressed his unhappiness with that decision and his desire to continue investigating corruption in Sacramento.

So Obama fired him, in complete defiance of the law's requirements of thirty days' notice to Congress plus a good explanation for such an act. So the administration quickly backtracked, and said he wasn't fired but just on "administrative leave" for 30 days, and then, of course, after 30 days, he was officially fired.

Then the explanation they gave was that he was a doddering old man and no longer had the president's confidence.

The Court of Appeals decided, hey, close enough to the law's requirements!

The three-judge panel ruled that the White House's decision to place Walpin on administrative leave for 30 days (after telling him he was fired) did not violate the law. Further, the judges ruled that Obama's explanation that he no longer had "fullest confidence" in Walpin "satisfies the minimal statutory mandate that the president communicate to the Congress his 'reasons' for removal."

It is an across-the-board defeat for Walpin. But it is also a clear danger sign for the independence of inspectors general. The court's decision effectively means that the president can remove future inspectors general immediately, without notice to Congress, simply by placing an inspector general on immediate administrative leave, following by formal firing 30 days later. Also, the president can simply tell Congress he did it because he no longer has confidence in the inspector general.

Such a scenario is not what the bipartisan group of lawmakers had in mind when they crafted the protections for inspectors general. Whether they will strengthen the law as a result of the Walpin case remains to be seen.

Thanks to rdbrewer.

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posted by Ace at 04:12 PM

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