Update: At today’s BOV meeting, in response to objections to having MARAD involved in the approval of the BOV’s charter, MARAD’s new Chief Counsel actually stated:
“The Board [BOV] belongs to MARAD”
MARAD simply doesn’t get it. MARAD belongs to the BOV. Not the other way around. If MARAD’s new general counsel believes otherwise, then she needs to read the law establishing the BOV.
Fortunately, the BOV revised a MARAD version of the charter (that neutered the board) to remove MARAD’s control over the BOV. The BOV then adopted the revised version of the charter. Bravo Zulu to the BOV and in particular Congressman Suozzi, and BOV members Jennifer Boykin, Steve Carmel, and Eugene Lutz for spearheading the adoption of the amendments.
Every federal service academy has a Board of Visitors (“BOV”) created by an Act of Congress that is intended to be a watchdog over the administrations that run each academy. These BOVs are created pursuant to the authority granted to Congress in Article 1 of the U.S. Constitution.
The U.S. Merchant Marine Academy’s BOV is established in 46 U.S.C. § 51312. The statute charges the BOV with providing “independent advice and recommendations on matters relating to the United States Merchant Marine Academy.” 46 U.S.C. § 51312(a) (emphasis added.) The BOV is statutorily charged with providing a report to the President of the United States of “its actions, views, and recommendations pertaining to the Academy.” 46 U.S.C. § 51312(j).
The BOV is an oversight agency created by Congress as part of its power to oversee the Executive Branch. Specifically, this requires the BOV to examine how MARAD is doing its job in running the U.S. Merchant Marine Academy. Consequently, the statute has the BOV reporting to the President, not the agency it is overseeing, and limits MARAD’s and DOT’s role with respect to the BOV to providing administrative support to the BOV. Thus, 46 U.S.C. § 51312(g) provides for the Secretary of Transportation to provide support “as deemed necessary by the Board.” And it directs the Secretary of Transportation to select a “Designated Federal Officer” (a/k/a “DFO”) “to support the performance of the Board’s functions.”
Let’s examine just one aspect of the statute and look at what MARAD has tried to do. In 46 U.S.C. § 51312(d)(2), the DFO is directed to organize a meeting of the BOV for the purposes of selecting a chairperson and for adopting an “official Charter for the Board, which shall establish the schedule of meetings of the Board.” Thus, it is pretty clear that it is the Board, not MARAD, that adopts a charter and schedules meetings (other than the initial organizational meeting).
Back in 2017, the BOV adopted a charter. It is the last charter that was adopted by a vote of the BOV. MARAD is given no role in adopting a charter for the BOV (other than having its DFO schedule the meeting to allow the BOV to adopt a charter). So what does MARAD do? In 2022, it wrote its own charter for the BOV and sent to the the GSA (which monitors and provides some regulation of discretionary boards that are created by an agency (as opposed to mandatory, or non-discretionary, boards created by statute). And no regular reader of this blog will be surprised to learn that MARAD’s 2022 charter for the BOV would hamstring the BOV and prevent it from exercising oversight over the Academy and MARAD’s gross mismanagement of the Academy.
Let’s compare the two charters:
|2017 BOV-approved Charter||2022 MARAD version of Charter|
|BOV reports to President [as required by statute]||BOV reports, through the Superintendent and the Maritime Administrator to the Secretary of Transportation [contrary to law]|
|The BOV meets at the call of the DFO “in consultation with the Chairman”||The BOV meets at the call of the DFO [contrary to law]|
|The 2017 charter recognized the application of federal law, including the Freedom of Information of Act and the Federal Advisory Committee Act||MARAD deleted this language in the 2022 charter [anyone doubt that the reason that MARAD did this was to lessen oversight and give it freer reign over the BOV???]|
|Three BOV meetings are anticipated per year.||Two BOV meetings are anticipated per year [less oversight]|
Isn’t it interesting that the charter MARAD is trying to impose upon the BOV invariably makes it harder for the BOV to conduct its oversight role?
Adding to that problem, MARAD has repeatedly impeded Congressman Tom Suozzi’s efforts to schedule a BOV meeting and has tried to control the agenda for the BOV meeting that was finally scheduled for today [May 13, 2022]. (As an aside, Congressman Suozzi, who presently chairs the BOV, has been an absolute rock star in forcing MARAD to schedule the meeting and pushing back on what would be in the agenda; and the National Parents Association has been awesome in supporting Congressman Suozzi’s efforts.)
I’ll have more on this topic in the future. But we stakeholders need to make sure that MARAD is not able to get the BOV under its thumb. The BOV needs to be taking a close look at how MARAD is mismanaging the Academy; how it is not allowing the Superintendent the autonomy to run the Academy; how it is applying the EMBARC standards to USMMA midshipmen but not to state maritime school students; and how it is favoring state maritime schools to the detriment of the nation’s (and world’s) premiere maritime education academy when it comes to the Academy’s Sea Year. Perhaps as important as Sea Year, the BOV should be extra vigilant in overseeing the selection process for the next Superintendent to ensure that the Academy is led by a merchant mariner who understands the U.S. Merchant Marine and the Academy and is not a rubber stamp for MARAD.