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Lawyer: Postal Service board members risked “removal” over ending Saturday mail delivery

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Members of the U.S. Postal Service’s board of governors risked losing their jobs if the agency persevered with ending Saturday mail delivery following passage of a final fiscal 2013 spending bill.

That was the warning delivered by an outside law firm April 5–four days before the board pulled the plug on the plan.

Proceeding with five-day mail delivery “would entail a number of risks,” Jeffrey Bucholtz,  a partner with King & Spalding, wrote in a 17-page opinion prepared for the Postal Service’s legal department. “First, violating a federal law would likely supply cause for the President to remove the Governors.”

While the Supreme Court has never precisely defined  the grounds for removal, Bucholtz continued, “it has said that the good-cause standard enables the President to ensure that an independent officer ‘is competently performing his or her statutory responsibilities in a manner that comports with’ applicable legislation.”

The odds of successfully moving ahead with five-day delivery faced other possible roadblocks, he added, including a legal challenge from the comptroller general and other lawsuits that could spring up around the country. Although judges could rule either way on such cases, he said, “the Postal Service would have to run the table and win every case in every court.”

The memo, marked “PRIVILEGED AND CONFIDENTIAL,” casts new context on the board’s about-face on five-day delivery. In last month’s statement announcing that it was halting implementation of the new schedule, the panel, chaired by Mickey Barnett, a lawyer and former New Mexico state senator, didn’t reference the removal threat. Whether that factored into its decision is unclear.

A seat on the board carries real power over the operations of an enterprise that affects virtually every American. But the pay is $30,000 annually plus expenses, a relatively modest amount by Washington standards for what in recent years has become an increasingly time-consuming job.

In a brief interview Friday, Barnett said the removal risk had no effect on his stance. “My term’s up at the end of December,” Barnett said following the board’s public meeting on release of the Postal Service’s second quarter financial results.  Speaking on behalf of the board, Postal Service spokesman Dave Partenheimer had previously pointed back to last month’s statement. There, the board said that Congress left it no choice but to drop the plan for now and that it didn’t want to unduly burden postal customers with “ongoing uncertainties.”

The memo was one of two that Bucholtz prepared on the five-day delivery question at a cost to the Postal Service of about $51,000.  The central issue was whether a decades-old congressional ban on curtailing mail delivery days still applied under the stop-gap spending measures known as continuing resolutions.

Under the CR that was in place in February when the Postal Service announced plans to end Saturday mail service with projected savings of $2 billion per year,  Bucholtz had opined in a Feb. 28 memo that the agency could legally proceed. It was a whole different story under the full-year CR signed in late March. That measure did incorporate the ban, he said in the April 5 memo. As an independent agency, Bucholtz said, “the Postal Service should tread carefully in the highly controversial area of potential open disobedience of a federal statute.”

“Without support from Congress or the President, efforts to avoid compliance with enacted law are not likely to succeed.”

Of course, the Postal Service, citing a lack of money, has twice flouted a separate legal requirement that it pay about $5.5 billion annually into a fund for future retiree health care. Those defaults have generated little concern from politicians. At an April 17 congressional hearing, they also helped prompt the following frank exchange between Barnett and Rep. Darrell Issa, R-Calif., who chairs the House Oversight and Government Reform Committee, according to a transcript.

Issa: “You obey a law that costs you $2 billion and you ignore a law that says you owe us $5.5 billion a year and you’ve done it for two years. Why would you pick one law to obey, that cost — you know, that you choose to obey, that actually costs you $2 billion? Where’s the fiduciary balance there? If you’re going to break a law, why is that the law that you broke? Or didn’t break?”

Barnett: “Mr. Chairman, thanks for that question, because I, we do have a reason. The board has discussed it extensively. The real problem with the going from six to five-day, knowing it will be challenged in court and not knowing what the result would be, is the tens of thousand dollars that many, many businesses would have to implement in software updates and changes in their procedures. It also involves approximately 23,000 employees that would be directly affected . . .”

[Post updated Friday, May 10, with Barnett comments]

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Comments

  1. Jackie Says:
    May 8th, 2013 at 1:17 pm

    It is very simple to solve the PO issue, just sell it to private sectors, let the private sectors run it and pay tax, problems solved!

  2. Dave Says:
    May 8th, 2013 at 1:36 pm

    Im a rural carrier, and my customers for the majority ( about 85%) could care less about getting mail on Saturdays. Most of the so called mail alias junk to be quite frank that I deliver on Saturday is still in their box on Monday. Whats that tell you?

  3. Roscoe Says:
    May 8th, 2013 at 1:43 pm

    Jackie –

    The private sector runs it and pays taxes? On what planet to you see any organization who runs this having to pay taxes?

    Postal workers do however and we pay a lot in taxes.

    Privatize the USPS and watch whomever pays the workers pay them less and then we get even less tax revenue – your statement bucks the reality we live in..

  4. truthteller Says:
    May 8th, 2013 at 1:45 pm

    in hindsight, can anyone give me an example of anything that postmaster general donahoe has done as postmaster general that has turned out to be a good idea? it seems to me as though donahoe’s reign as postmaster general has been
    consumed by an agenda full of lies, bluffing, misinformation, and service destroying policies that has turned the donahoe regime into a laughing stock and seriously tarnished the image of the united states postal service for decades to come.

  5. Joe Postal Says:
    May 8th, 2013 at 3:09 pm

    Jackie, name one private sector company that would deliver a letter from Maine to Hawaii for 48 cents, or for that matter even abide by the ‘Universal Service’ clause the USPS operates under.

    Google fiber is showing the world what a private sector company will do to provide a needed service on a large scale. The poor are left out and the rich get the goodies. Laws are changed to suit them by Politicians eager to pin that high speed internet feather to their caps. What makes you think the same thing wouldn’t happen with Mail Service the minute a private company is running things?

    If you take away the PAEA death strike against the USPS it’s actually made a profit during times that drove most businesses out of the market. It’s large and klunky, but has made great strides and provides an amazing service at an affordable rate.

  6. Bill Says:
    May 8th, 2013 at 3:23 pm

    Abolishing the Board of Governors is the first thing that should happen. These people are supposed to be business leaders but they have been complete failures. They really don’t know how the PO functions. If they did they would see how top-heavy postal management is and would cut half of those jobs immediately. The pre-funding of the retiree health benefits is only HALF the problem, with management waste being another large chunk of the problem.

  7. Don Says:
    May 8th, 2013 at 3:36 pm

    If you privatize the postal service, do you think a first class letter will cost just $.46 – Even the billers will pay more and pass those costs to you. Shipping & Handling? – think UPS and FedEx rates.

  8. Steve Says:
    May 8th, 2013 at 6:26 pm

    Congressman Issa certainly knows alot about breaking the law.

    Issa ran for the Senate in 1998. An investigative reporter named Lance Williams was looking into the then-candidate’s biography.

    “He had been a soldier, and he claimed that he was part of an elite bomb detecting unit that guarded President Nixon at the 1971 World Series,” said Williams.

    Williams called up the Nixon Presidential Library, and was told that Nixon hadn’t gone to any World Series games that year. Then Williams looked into Issa’s purportedly stellar career in the Army.

    “The biography that he was providing the press in the context of his campaign was all wrong. He had a bad conduct rating. He was demoted, and a fellow soldier accused him of stealing his car,” said Williams.

    Issa eventually took over a company that built car alarms.

    Ryan Lizza, a reporter for The New Yorker magazine, detailed Issa’s early business moves in a 2011 story.

    Issa had a warehouse full of electronics that, one night in 1982, caught fire. Investigators later found “suspicious burn patterns,” Lizza reported, and found that Issa had done some odd things.

    A co-worker claimed that before the fire, Issa had put important electronic prototypes in a fireproof box, and that he’d removed the business’s computer and financial files from the building. Investigators also found that less than three weeks before the blaze, Issa had increased the company’s fire insurance from $100,000 to more than $400,000.

    “So you add the more than quadrupling of the insurance along with the taking the computer and putting the other stuff in a fireproof box, and you can see why both the arson investigators and the insurance investigators pointed a finger, you know, at Issa after this fire,” said Lizza.

    Issa said he had nothing to do with the fire, but the insurance company refused to pay the claim. The two later settled out of court.

    It was in part because of these allegations that Issa lost his Senate bid in 1998. He went on to win his House seat, he worked to recall the governor of California, and now he chairs the powerful House Oversight and Government Reform Committee.

  9. Ted Says:
    May 8th, 2013 at 7:09 pm

    Let the private sector take the Post Office over. Then when shipping rates double and triple, and letter rates quadruple we can sit around and bitch about it

  10. Brad Says:
    May 8th, 2013 at 7:49 pm

    Jackie, Fed Ex and UPS pay the Postal Service TENS OF MILLIONS of dollars every year to deliver packages for them. (Google Surepost and Smartpost) These for profit companies do this because the USPS goes to out of the way areas that would cost and arm and a leg for them to deliver to. I also deliver many of their lightweight packages on my city route. They dont provide universal service 6 days a week and have no interest in doing so. A privatized PO would see private companies cherrypick profitable areas while ignoring rural areas and inner city ghettos. Lets shaft 1/2 the country!

  11. nick Says:
    May 9th, 2013 at 7:11 am

    to the jackies of the world>>>

    in 2003, the court ruled the government owed 27 billion back to the postal service for civil service pensions paid out from 1975 when the USPS went private.
    bush didnt have the money to pay it back so he created PAEA.
    the postal service is a cash cow for the government, pay it all back and we are running a surplus, even in these recession years.

  12. Ric Says:
    May 9th, 2013 at 10:40 am

    This article clearly identifies that the Postal Board is not performing their duties and should be removed. The President should put people on the board that will look to successfully run the Postal Service.

  13. lsw Says:
    May 9th, 2013 at 3:30 pm

    $51,000 for 17 pages? I sure hope they weren’t double-spaced. No wonder the USPS is losing money!

  14. dinkes & schwitzer Says:
    May 9th, 2013 at 4:18 pm

    If they let that take care of the private sector

  15. Roger Says:
    May 10th, 2013 at 10:20 am

    Jackie, I hope you’re wearing some sunblock, ’cause it looks like you got burned pretty good there. How’s it feel??

  16. Postal Employee Says:
    May 12th, 2013 at 2:27 pm

    Just buyout the old timer Civil Service Employees they make $90,000 dollars with incentives. Compaired to $32,000 for the new Employees with no Benefits. Its a no Brainer !!!

  17. Carl Buick Says:
    May 12th, 2013 at 3:14 pm

    Don’t forget “sanctity of the mail,” i.e., it’s a Federal offense to steal the mail. There’s an armed Federal law enforcement agency that looks over this. They also investigate any crime (fraud, etc) committed through the mail. Also, the USPS keeps a near realtime database of all delivery points (addresses) and whether they are business or residential and whether they are vacant or occupied. Let’s see FedEX or UPS is capable or willing to do this.

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