Inspector General alleges failure to properly designate DHS workers sent to defend federal property

The Department of Homeland Security (DHS) Inspector General (IG) in a Nov. 2 alert claimed that the Director of the Federal Protective Service (FPS) failed to properly designate DHS workers dispatched to defend federal property, though the Office of the General Counsel (OGC) disagreed with the watchdog's determination.

By law the DHS Secretary has the authority to designate DHS employees "as officers and agents for duty" in order to protect federal property and those on it.

The IG suggested that there is a lack of clarity regarding whether the FPS director actually possesses the authority to designate DHS employees because of questions regarding the legality of Kevin McAleenan's previous service in the role of Acting Secretary. McAleenan delegated the designation authority to the Under Secretary for Management and the Senior Official Performing the Duties of the Under Secretary for Management later moved to delegate the authority to the FPS director. The delegation to the FPS director prohibits any further delegation of the authority.

The watchdog said that "the best reading of the designation requirement" indicates that the FPS director single out specific individuals to carry out a law enforcement authority based on 40 U.S.C. § 1315.

"The larger problem with the FPS Director’s approach to designation is that he did not identify any DHS employees by name who could exercise authority under 40 U.S.C. § 1315," the Inspector General's alert said.

The watchdog noted discovering that "several individuals who deployed to Portland but whom FPS could not confirm received training on section 1315. Some of these individuals used force while deployed to Portland. We also identified several individuals who deployed to Portland before they received training on section 1315," the watchdog reported.

The IG issued two recommendations with which the OGC did not concur.

One said that the Acting Secretary of Homeland Security should make certain that those looking to designate DHS workers possess the requisite authority.

Another recommendation said that an appropriately authorized official should "designate by name any DHS employees authorized to exercise authority under that statute to protect Federal property and persons on that property."

"According to OGC, the FPS Director properly designated officers under 40 U.S.C. § 1315(b)(1), which makes this recommendation unnecessary," the OGC commented regarding that recommendation. "In reaching a contrary conclusion, OIG improperly construed 40 U.S.C. § 1315(b)(1) as requiring by-name designation of officers, and did not acknowledge that FPS maintains a list of employees who completed FPS’ five-step cross-designation process."