Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power ( 2002 )

Authority of the Chemical Safety and Hazard
Investigation Board to Delegate Power
Although the Chemical Safety and Hazard Investigation Board may not name an “Acting Chairperson,”
it may delegate administrative and executive authority to a single member while the position of
chairperson is vacant.
April 19, 2002
LETTER OPINION FOR THE U.S. CHEMICAL SAFETY AND HAZARD
INVESTIGATION BOARD
You have asked whether the Chemical Safety and Hazard Investigation Board
(“Board”) may delegate executive and administrative authority, previously
exercised by its chairperson, to a single member while the position of chairperson
is vacant. We believe that it may, as long as it does not purport to name that
member the “Acting Chairperson.”
The Board’s five members, including a chairperson, are appointed by the Presi-
dent with the advice and consent of the Senate. 42 U.S.C. § 7412(r)(6)(B) (1994).
The chairperson “shall be the Chief Executive Officer of the Board and shall
exercise the executive and administrative functions of the Board.” Id. For more
than two years now, the Board has been without a chairperson. The issue here is
what action the Board may take to maintain its operations until a new chairperson
is appointed.
We do not believe that the Board may formally name an acting chairperson.
Here, as in an earlier instance where we determined a board could not take such
action, “[t]here is no suggestion in any provision of the [statute] that the Board has
any authority or role in determining who will be the chairperson or in designating
an acting chairperson.” Memorandum for Christopher D. Coursen, Advisory
Board for Cuba Broadcasting, from Daniel L. Koffsky, Acting Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Authority of the Advisory Board
for Cuba Broadcasting to Act in the Absence of a Presidentially Designated
Chairperson at 5 (Jan. 4, 2000). “In the absence of any such specific provision, it
should be assumed that the power to designate an [a]cting [c]hair[person] remains
in the President,” Federal Home Loan Bank Board—Chairman—Vacancy—
Reorganization Plan No. 3 of 1947 (5 U.S.C. App. 1), Reorganization Plan No. 6
of 1961 (5 U.S.C. App.), 3 Op. O.L.C. 283, 283 (1979). To be sure, the principal
statutory means by which the President may fill vacancies on an acting basis, the
Vacancies Reform Act, is not available here, because it does not apply to “any
member who is appointed by the President, by and with the advice and consent of
the Senate to any board, commission, or similar entity that . . . is composed of
multiple members; and governs an independent establishment.” 5 U.S.C.
§ 3349c(1) (2000). The Board is a multi-member body governing an “independent
establishment,” 5 U.S.C. § 104 (2000), and the position of its chairperson is thus
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Opinions of the Office of Legal Counsel in Volume 26
within this exclusion from the Vacancies Reform Act. Nevertheless, as our earlier
opinions suggest, the President might well have authority to name an acting
chairperson, based on his statutory role in appointing the chairperson and on the
Take Care Clause of the Constitution, U.S. Const. art. II, § 3, even if no express
statutory authority to name an acting chairperson is available.
Even without being able to name an acting chairperson, however, the Board
may provide for the discharge of its administrative and executive duties when the
position of chairperson is vacant. Although the chairperson “shall be the Chief
Executive Officer of the Board and shall exercise the executive and administrative
functions of the Board,” 42 U.S.C. § 7412(r)(6)(B), we believe that the statute
gives the Board as a whole an area of executive and administrative responsibility
in which it can act in the present circumstances.
We previously have analyzed the division of authority between the chairperson
and the Board as a whole. Memorandum for Paul-Noel Chretien, General Counsel,
Chemical Safety and Hazard Investigation Board, from Randolph D. Moss, Acting
Assistant Attorney General, Office of Legal Counsel, Re: Division of Powers and
Responsibilities Between the Chairperson and Chemical Safety and Hazard
Investigation Board and the Board as a Whole (June 26, 2000) (“2000 Opinion”).
As we noted, “[t]he terms ‘Chief Executive Officer’ and ‘executive and adminis-
trative functions,’” by which the Board’s organic statute describes the duties of the
chairperson, “are decidedly vague, and nowhere does the [statute] define them.”
2000 Opinion at 3. We pointed out that the statute gives the Board as a whole the
authority to “establish such procedural and administrative rules as are necessary to
the exercise of its functions and duties,” 42 U.S.C. § 7412(r)(6)(N), and that the
legislative history recognizes that “[t]he chair’s conduct of the executive function
is subject to oversight by the Board as a whole,” S. Rep. No. 101-228, at 229
(1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3613. We also stated that “[o]ur
past opinions addressing governance issues raised by multi-member boards and
commissions have repeatedly recognized that basic and well-established principles
of corporate common law make clear ‘that the basic premise governing delibera-
tive bodies is that the majority rules.’” 2000 Opinion at 4 (quoting Letter for
Mason H. Rose V, Chairperson, United States Architectural and Transportation
Barriers Compliance Board, from Larry L. Simms, Deputy Assistant Attorney
General, Office of Legal Counsel at 2 (Sept. 17, 1981)). We concluded that “day-
to-day administration of Board matters and execution of Board policies are the
responsibilities of the chairperson, subject to Board oversight, while substantive
policymaking and regulatory authority is vested in the Board as a whole” and that
“[i]n disputes over the allocation of authority in specific instances, the Board’s
decision controls, as long as it is not arbitrary or unreasonable.” 2000 Opinion at 2.
In this regard, we observed that although “the statutory assignment of the Board’s
executive and administrative functions to the chairperson necessarily vests the
chairperson with a degree of managerial autonomy,” “any number of Board
activities or day-to-day aspects of Board business, while at least in part administra-
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Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power
tive and even seemingly mundane, may involve or affect the Board’s duties and
functions in ways that are of legitimate concern to the Board as a whole.” Id. at 4.
The considerations that go into drawing this indistinct line between the Board’s
duties and the chairperson’s duties necessarily change when the position of
chairperson is vacant. In those circumstances, actions that might otherwise have
been within the chairperson’s autonomous authority will “involve or affect the
Board’s duties and functions in ways that are of legitimate concern to the Board as
a whole.” 2000 Opinion at 4. The unavailability of a chairperson may mean that
action necessary to the continued operation of the Board is in danger of not being
performed at all. In our view, therefore, the Board acts within its area of adminis-
trative authority when, in these circumstances, it takes the steps necessary to
maintain its operations.
The Board may proceed in a variety of ways. It may perform the necessary
administrative actions itself or may delegate the authority to take these actions to
one or more of its members. See S. Rep. No. 101-228, at 229, reprinted in 1990
U.S.C.C.A.N. at 3613 (“The Board . . . may (by vote) delegate responsibilities to
the chairperson or other member[s]. . . .”). It may use its authority to “establish . . .
procedural and administrative rules” to provide for performance of the administra-
tive actions. 42 U.S.C. § 7412(r)(6)(N). And to the extent the authority to take the
action in question could be delegated to staff, either the Board as a whole or an
individual member who is initially assigned the responsibility by the Board may
make such a delegation.
We recognize that if all of the administrative authorities at issue are united in a
single Board member, that Board member might appear to be an “Acting Chair-
person.” As a matter of law, however, we do not believe that the Board would be
naming an acting chairperson if it conferred administrative responsibilities on a
single member. The member could not use the title “Acting Chairperson”; and
while the use of a title may be primarily a formal matter, it is a formal matter of
some significance. The title would suggest a measure of the status and prestige
associated with the position of chairperson—a position that can be conferred only
by the President with (except in the case of a recess appointment) the advice and
consent of the Senate. Further, conferral of the title by the Board might bring into
question the President’s authority to name an acting chairperson. By itself, the
assignment of duties and powers to a single member would not raise these
concerns.
We therefore conclude that, during the vacancy in the position of Chairperson,
the Board may assign its executive and administrative authority to a single
member.
JAY S. BYBEE
Assistant Attorney General
Office of Legal Counsel
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