Investigators said that USDA blew past a 60-day deadline set by Congress to submit a report on how the department intends to use the $6 million in appropriations given to NIFA that were earmarked for relocation expenses. | Getty Images agriculture Inspector general: USDA may have broken law in moving ERS, NIFA

The Agriculture Department’s inspector general said Monday that the department may have broken the law by not obtaining congressional approval before relocating two research agencies out of Washington.

A probe conducted by the Office of Inspector General questioned whether the department has the budgetary authority to use appropriated funds to move the Economic Research Service and National Institute of Food and Agriculture to the Kansas City area. But the report also determined USDA has the legal authority to carry out the relocation, another component of the IG’s review.


The review was launched in November after requests from Democratic lawmakers concerned USDA didn’t adequately explain why the relocation was taking place. Agriculture Secretary Sonny Perdue has said the move will bring USDA research closer to farming communities, cut costs and improve recruitment and retention of staff.

The relocation has received significant disapproval from Democrats who have said the move is unjustified and will result in agricultural research getting overlooked and underfunded. Some employees have already begun working in temporary office space in the Kansas City area until USDA secures a permanent, long-term lease. All positions that are being relocated will be transferred by Sept. 30.

The IG‘s report could still help bolster the case of those opposed to the move. The fiscal 2018 omnibus requires USDA to notify the House and Senate appropriations committees at least 30 days before using funds to relocate an office or its employees. The USDA on Aug. 9, 2018 informed Congress of Perdue’s relocation proposal.

In letters to the committees, “the Department mentioned that it would engage private sector assistance in its search for a new location and would be using funds appropriated in the Omnibus Act for its search,” the IG report says.

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A section in the spending law also requires USDA to receive approval from Congress before spending money for the relocation, according to the IG report. USDA never received permission from Congress to carry out its plan.

On Oct. 22, 2018, USDA allocated about $169,655 in ERS funds and $169,655 of $6 million in appropriations provided to NIFA for relocation expenses to hire Ernst & Young to review bids from cities vying to host the agencies, according to the report.

House Majority Leader Steny Hoyer and Del. Eleanor Holmes Norton, the lawmakers who requested the review, said in a joint statement that USDA must halt the relocation until Congress approves the use of funds.

"USDA must follow the law, period," the members said. "It ought not change interpretations when it is convenient for the Administration or the Secretary at any given moment."

Investigators also said that USDA blew past a 60-day deadline set by Congress to submit a report on how the department intends to use the $6 million in appropriations given to NIFA that were earmarked for relocation expenses. The omnibus was enacted on March 23, 2018, and USDA didn’t notify the committees until August — 139 days later.

As a result, the report concludes that USDA may have also 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.”

In response to the IG’s report, USDA’s Office of the General Counsel said the department followed the law.

In a memo dated July 19, USDA General Counsel Stephen Vaden said the department is not required to receive permission from Congress for the relocation because it believes the committee approval provisions of the spending law are unconstitutional. Vaden said the department has declined the IG’s recommendation to now seek congressional committee approval of the relocation.

“Thus, the department has complied with applicable law by providing Congress with the notice it called for in appropriations legislation,” the memo states. “USDA is not required to abide by unconstitutional laws.”

A USDA spokesperson said in a statement that the IG'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."

"Since the Inspector General affirms the Department has the legal authority and we do not agree with the unconstitutional budgetary provision, this case is closed," the spokesperson said. "This is opinion based on policy decisions that have no basis in fact.”

But the IG responded to USDA’s argument that those committee approval provisions have been included in appropriations laws since 2015 and the department has previously considered them binding. The IG said USDA’s “current and prior positions” on the committee approval provisions “are not consistent,” and recommended that the department needs to explain in writing why officials changed their interpretation.

The IG also examined whether USDA has the ability to move ERS under the Office of the Chief Economist. But that consideration is no longer relevant, as Perdue backed off the plan to reshuffle the office.

Additionally, the IG looked into whether USDA abided by procedures for making organizational changes, but found that no established procedures relating to the relocation exist when the change is proposed by the secretary, rather than when agencies request a reorganization.

The report recommended that USDA clarify its established regulation that outlines policies for structural changes within the department.