The Pentagon’s current caretaker is fine to stay in his post, a new legal opinion says, contradicting a previous ruling.

Office of the Legal Counsel of the Department of Justice published a 13-page opinion published on October 21following The Government Accountability Office decision in the summer that Sean O’Donnell is illegally serving as the acting inspector general of the Department of Defense. O’Donnell, who is also the IG of the Environmental Protection Agency, was appointed acting Pentagon IG in April 2020 after President Trump fired acting IG Glenn Fine.

“We conclude that the current inspector general may continue to serve while President Biden’s first nomination is pending in the Senate; during the pending second nomination presented by President Biden; and for the periods of 210 days following any rejection, withdrawal or return of either of these two nominations,” the new opinion states.

At the heart of the issue is the Federal Vacancy Reform Act of 1998, which sets the parameters for employees holding temporary positions, including timing considerations and changes in presidential administrations. It’s been a hot topic under the Trump administration with all incumbents.

“GAO concluded that for positions for which a previous president submitted two or more unsuccessful nominations, [the act] only authorizes the resumption (and 90-day extension) of a single 210-day period of active duty,” the Office of Legal Counsel said in its opinion. “The GAO thus concluded that the current office of the acting inspector general is in violation of the Vacancy Reform Act.” This reading is inconsistent with the text, structure, and purpose of the Vacancy Reform Act.”

The Defense Ministry office declined to comment. GAO acknowledges the recipient of the request for comment, but has not provided a response by the time of this article’s publication.

Ann Joseph O’Connell, a Stanford law professor who is an expert on federal red tape and job vacancies law, said Executive authority, she agrees with the opinion of the Office of Legal Counsel. When the GAO issued its decision in June, she said the decision was inconsistent with past practice.

“Although [the Office of Legal Counsel] provides, I think, the best interpretation, I really think the text is ambiguous,” she said. “So I would urge Congress to clarify the issue, along with other ambiguities (time of first assistants, use of [Vacancies Act] where there is an agency-specific provision, dismissals, etc.)’

The President recently appointed O’Connell as a member of the Administrative Conference Board of the United States, an independent agency that has up to 101 members (including 40 from the public) that reviews and adopts recommendations to improve federal administrative processes. She was speaking about the opinion of the Office of Legal Advisers in her role as a professor.

State Executivewe reported in April 2021 that experts believe reforms to the post-Trump-era JOBS Act are still needed to close loopholes and weaknesses.

The Pentagon has had acting IGs since early January 2016, the tail end of the Obama administration.

“It’s long overdue to fix this,” wrote Fine, the former acting IG of the Department of Defense and former IG of Justice who is now a fellow at the Brookings Institution in executive authority last week. “It’s not good for the IG’s office or the agency itself to be without a permanent IG for a long time.”

In November 2021, President Biden nominated Robert Storch, IG of the National Security Agency/Central Security Agency, to be IG of Defense. It was reported that he was out of the committees and awaiting a vote from March, but the nomination was put on hold by Sen. Josh Hawley, R-Mo.

“The delay in approving a permanent defense watchdog illustrates the dysfunction in the nomination and confirmation process, particularly with regard to inspectors general,” Fine wrote. “IGs have been called some of the most important employees you’ve never heard of.”