August 26, 2019

Has the USDA Broken a Law?

USDA may have broken the law in moving forward with NIFA/ERS relocations

The USDA’s decision to move its headquarters for the National Institute for Food and Agriculture (NIFA) and Economic Research Service (ERS) from the D.C. area to the Kansas City Region has been met with opposition at every step, but is the move actually illegal? In an Aug. 5 report, the USDA’s inspector general said the department may have broken the law by not obtaining Congressional approval before relocating the two agencies.

Secretary of Agriculture Sonny Perdue has said the relocations will save taxpayer money, help the USDA recruit and retain talented staff, and bring experts closer to stakeholders in agricultural regions. The inspector general’s probe was triggered by a call from members of Congress last September to investigate the rationale behind the relocation.

According to the Office of the Inspector General’s report, the USDA does have the legal authority to relocate the agencies under Reorganization Plan No. 2 of 1953; however, under Section 717(a) of 2018’s Omnibus Act, the USDA does need Congressional approval to use appropriated funds for the relocation.

The investigators found that the USDA missed a 60-day deadline from Congress to report on how the department intended to use $6 million appropriations given to NIFA and earmarked for relocation expenses. The USDA was found to have paid a private contractor to evaluate potential relocation sites before notifying Congress of how that money would be used. Investigators say this may have violated the Antideficiency Act, “which prohibits government employees from involving the federal government in a contract or obligation for the payment of money before an appropriation is made.”

Overall, the inspector general recommends four actions before the USDA proceeds with the move:

  • That the USDA “obtain the Office of the General Counsel’s opinion regarding USDA’s compliance with relevant appropriations provisions set forth in the Omnibus Act, including whether there was any corresponding violation of the Antideficiency Act.”
  • That the USDA “take appropriate action if any Antideficiency Act violations occurred.”
  • That the USDA should “obtain Congressional approval, as required, prior to obligating and/or expending for reprogramming or transferring additional funds for the relocation of ERS and NIFA.”
  • And finally for the USDA to “evaluate the need to clarify the Departmental regulation.”

Meanwhile, the USDA’s Office of the General Counsel says the department followed the law. In a statement, a USDA spokesperson said the inspector general’s conclusion that “the Department was out of step with budgetary requirements disregards the authority given to the Executive Branch by the U.S. Constitution.”

It’s not clear how the USDA will proceed. The relocation was supposed to take place in September, and many NIFA and ERS employees had already said they would not accept the relocation. On Aug. 9, the USDA said it would give employees additional time to consider the move and extended the deadline to Sept. 27.