An uptick in protection obligations and a shortfall in staffing has created a no-win situation for the U.S. Secret Service.
On the one hand, the law enforcement agency is legally obligated to protect the President, his family and other close affiliates. On the other, President Trump’s travel habits, his proclivity for staying at his private hotels, and the globe-trotting activities of his brood have exacerbated a longterm strain on the U.S. Secret Service that has resulted in dozens of agents working overtime hours that will not be compensated, due to salary caps, as highlighted by a USA Today report this week.
On top of that is another potential wrench that is putting the Secret Service in legally precarious position, experts in federal contracting law told TPM this week.
Some legal experts believe that the Secret Service may also be in violation of an obscure appropriations law that prohibits federal employees from accepting work on a volunteer basis. The legal area is very gray, and the Government Accountability Office, which is in charge of evaluating potential violations, has never made a ruling on a situation similar to that facing the Secret Service.
“What they’re doing is telling people to work over time when they don’t have the money. It’s like awarding a contract for IT if you don’t have the funds and in this case, you have the people working, but it’s interesting because they can’t stop work,” Barbara S. Kinosky, a federal contracting lawyer, told TPM. “Its’ a very unique situation though, because they can’t stop protecting the President.”
The law is actually a body of laws known as the Anti-Deficiency Act, but is also sometimes called the “anti-volunteer statute,” according to University of Baltimore Law Professor Charles Tiefer.
It mainly prohibits government agencies from spending funds that weren’t appropriated by Congress. It was first enacted in 1870 by Congress out of frustration that the executive branch was imposing on Congress so-called “coercive deficiencies” by spending more money that initially appropriated for the year, then asking the Congress to provide supplemental appropriations to pay the remaining obligations.
Over the years the Anti-Deficiency Act has been amended and expanded, and as the GAO website explains, it now also includes a ban on “accepting voluntary services for the United States, or employing personal services not authorized by law.”
The line in the USA Today report that set off alarm bells was that more than 1,000 Secret Services agents had already worked more overtime hours than they can be compensated for for the year. The agency ran into a similar issue in 2016 and Congress passed waivers to pay agents retroactively for some, but not all, of the uncompensated overtime hours. If a similar proposal to raise the cap is adopted this year, some 130 agents will still have worked more hours than what they are ultimately compensated for even under the new cap, the USA Today report said.
“I think it may very well be illegal,” Tiefer, the law professor, told TPM. “The Secret Service agents are being asked to volunteer to the government. That is to volunteer, to perform work without pay.”
The law comes with some exemptions, and cases where an agency gets in trouble for violating the volunteer clause of the Anti-Deficiency Act are extremely rare, making up only 2 percent of the reported claims between 2006-2011.
One exemption is for “cases of emergency involving the safety of human life or the protection of property.” However, that exemption does not include “ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.”
“If there is an exemption, they’re expanding the concept of an exception too far, because it’s too structural,”said Jeff Hauser, the executive director of the Revolving Door Project at the left-leaning think tank Center for Economic and Policy Research.
“It’s too anticipated. It’s one thing if the aliens invade next week and everything is crazy. This is not that,” he argued.
However, experts are not unanimous that the current situation at the Secret Service qualifies as a violation, particularly as a statutory compensation cap set by Congress is why agents aren’t getting paid for work beyond a certain limit.
“It seems to me more a compensation issue rather than a voluntary service issue,” said Gordon Gray, the director of fiscal policy at the right-leaning public policy organization American Action Forum, where he has written a primer on the Anti-Deficiency Act.
The voluntary service provision is more likely to be brought up in the context of a government shutdown, Gray said, if federal employees are being asked to work for free because their agency’s funding hasn’t been appropriated.
A spokesperson for the the U.S. Secret Service denied that the agency is violating the anti-deficiency laws in the current circumstances. “The Secret Service pays its employees up to the annual pay caps established by law,” the spokesperson, Cathy L. Milhoan, said.
It’s not clear if we’ll get an answer over whether that system is legal under the Anti-Deficiency Act anytime soon.
Potential violations of the law are investigated if a congressional committee or a high-level member of agency itself, such as a director or an inspector general, asks the GAO to evaluate it. The law allows for criminal penalties, including fines up to $5,000 and/or two years in prison, if a violation is found. But a far more common remedy is some sort of administrative punishment, such as suspension without pay.
So far, there does not appear to be any request to the GAO to make a ruling on the question of whether the Secret Service is in violation of the Anti-Deficiency Act. Congressional sources say the law is not on their radar and that they are instead looking at another legislative fix akin to the waivers passed last year.
In a statement after the publication of the USA Today report, U.S. Secret Service Director Randolph “Tex” Alles also said the “the agency has worked closely with the Department of Homeland Security, the Administration, and the Congress over the past several months to find a legislative solution.”