Allegations of industry influence rock mine safety commission

A Republican commissioner on a federal mine safety agency sought advice on personnel matters from a closely held collection of outside advisers that appears to have included at least one coal industry executive, according to documents obtained by POLITICO.

The revelations prompted the commission’s Democratic chair to request a review by an outside inspector general, alleging what appeared to be a violation of federal ethics rules.

The disclosures come as the Federal Mine Safety and Health Review Commission, an independent agency, is mired in partisan infighting among its members and numerous other allegations of financial malfeasance that have attracted the attention of federal investigators.

Marco Rajkovich, who chaired the agency during the Trump administration and is now one of its three commissioners, disclosed the existence of the group of advisers, whom he dubbed the "Network,” in an April 2020 personnel memo that has not previously been reported. A person familiar with the agency’s work later shared the memo with POLITICO.

The “Network” consisted of “at least 70 independent individuals, including a large contingent outside of FMSHRC,” Rajkovich wrote in the memo. He wrote that as chair he had reached out to 17 contacts, who in turn enlisted several other people “to assist them in information gathering,” and that he consulted with the group on hiring issues and a personnel investigation on a former senior staffer. He characterized the people as trusted individuals who were familiar with industry players and could provide impartial advice.

Rajkovich kept the existence of the group private and the identity of its members confidential to guarantee “complete candor, and to guard against any improper reprisal and/or retaliation from anyone,” he wrote in the memo. Rajkovich also wrote that he had contacted members of the “Network” individually without letting them know of each other’s work. Rajkovich maintained that he did not consider information that couldn’t be verified by “first-hand knowledge, and/or corroborated by other sources.”

The memo later came to the attention of the agency’s current chair, Arthur Traynor, who expressed concern in his inspector general request this year that Rajkovich’s group “appears to have been comprised at least in part of top executives of coal and other mining concerns, some of whom were recent former clients of Rajkovich’s law firm.”

A separate email made public through a 2020 Freedom of Information Act request shows that Rajkovich had reached out to Heath Lovell, a coal executive connected to Rajkovich’s past work as a mine lawyer, for information on a commission hiring decision. The personnel memo does not spell out whether Lovell was part of Rajkovich’s “Network.” Lovell declined to offer a comment for this story.

Rajkovich’s use of personal contacts outside the commission to help make personnel decisions is troubling, said Tom Stock, a retired long-time commission staffer who once served as the agency’s general counsel.

Speaking from his experience as a former ethics official, Stock said his opinion is that such reliance on the “Network” would have “violat[ed] ethics rules of impartiality, appearances and propriety in an amazing way.”

“You know, it’s just astounding that he would have done that,” Stock said in an interview with POLITICO. “And to have done it in writing!”

In an emailed response to a request for comment about whether he played a role in any alleged financial malfeasance, Rajkovich said that “there were no improprieties on my part and I certainly deny those allegations. I don’t have any further comment.”

When presented with a detailed list of questions touching on the financial malfeasance allegations against others at the agency, and his “Network’s” role in internal personnel decisions, Rajkovich added: "I have engaged in no misconduct at any time, nor violated any Act or personnel practice, either as Chair or as Commissioner. Any allegation to the contrary is baseless and false."

Traynor declined to provide a comment for this story.

The commission is a Carter-era independent agency that adjudicates legal disputes between workers and their employers. It’s less publicly known than the Labor Department’s Mine Safety and Health Administration, which is charged with inspecting mines and ensuring that companies comply with safety laws.

The commission was created by the Federal Mine Safety and Health Act of 1977, which opens with a declaration that “the first priority and concern of all in the coal or other mining industry must be the health and safety of its most precious resource – the miner.” The agency also includes some of the most labor-friendly procedural protections of any federal agency for workers who raise complaints against their employers.

Former President Donald Trump nominated Traynor and Rajkovich to the agency, while Republican Commissioner William Althen has served at the commission in various roles since Barack Obama’s presidency.

Rajkovich’s background isn’t necessarily out of the ordinary. Numerous times throughout its history, the mining commission had a majority of commissioners with pro-industry résumés, said Wes Addington, executive director of the pro-labor Appalachian Citizens’ Law Center.

But lately, the agency has been torn by the power struggle among its three commissioners, which soon may be down to two Republicans after Traynor’s term expires in August.

President Joe Biden nominated Timothy Baker, associate general counsel of the United Mine Workers of America and a former mining commission staffer, and Mary Lu Jordan, a former FMSHRC chair and commissioner, for the two vacant seats. But with the commission’s relative obscurity, it’s common for nominations to be pushed to the Senate’s backburner, said Tony Oppegard, a mine safety attorney who has worked before the commission for decades.

The prospects for Biden's nominees being confirmed would be uncertain starting in January if Republicans win control of the Senate in the midterm elections although both nominees were unanimously advanced out of the Senate HELP Committee this year.

An outside network

On March 28, 2022, after reading Rajkovich’s personnel memo, Traynor wrote to Allison Lerner, chair of the executive branch’s Council of the Inspectors General on Integrity and Efficiency, to request an inspector general review of the matter. (The mine commission does not have its own inspector general.)

Traynor accused the Republican commissioner of creating an “off-the-books investigatory unit” to vet candidates for the agency’s chief administrative law judge — a post eventually given to veteran administrative law judge Glynn Voisin. Though nobody has raised any complaints about Voisin’s selection or work, Traynor wrote that Rajkovich’s contacting of outside sources “appears to be a violation of the Antideficiency Act,” which prohibits federal employees from accepting voluntary services for government work.

“Rather than follow a fair process where candidates for the position could submit their application and reference, and proceed through an unbiased interview and selection process, Rajkovich went to great lengths to set up a large off-the-books investigatory unit of what appeared to be his friends and like-minded individuals,” Traynor wrote.

Though Rajkovich kept the members of his network confidential, emails made public under a Freedom of Information Act request by the watchdog group American Oversight showed that on Aug. 17, 2019, Rajkovich had contacted Lovell, then an executive at the coal company Alliance Resource Partners, for input on finding a candidate for chief administrative law judge. Alliance Coal, an Alliance Resource Partners subsidiary, was a client of Rajkovich’s before he joined the commission.

“We have a once-in-a-while opportunity to place a good person in a pivotal position that could last for several years,” Rajkovich wrote in an email to Lovell, who now works for the energy sourcing company Hallador Energy.

Alliance is run by Joseph Craft III, a major Trump donor whose wife, Kelly, was Trump’s ambassador to Canada. Lovell has a long history of advocating coal industry interests, including portraying himself as a coal miner in a 2012 campaign ad for Rep. Andy Barr (R-Ky.), which prompted a fierce rebuke from the United Mine Workers of America union at the time. Neither Rajkovich’s personnel memo nor Traynor’s request for an inspector general review name Craft as part of Rajkovich’s “Network.”

In an April 19 letter to Sen. Richard Burr of North Carolina, the top Republican on the Senate HELP Committee, Rajkovich said he had followed “proper and agreed-upon hiring practices.” The committee has been probing the political infighting and allegations of professional malfeasance within the commission.

“All Commissioners, including Chair Traynor, approved the process to form a Review Panel to vet all applicants for the Chief ALJ job,” Rajkovich writes, referencing an internal hiring body that includes senior staff in the commission. “No one other than the Review Panel and the Commissioners had any role in the selection of Judge Voisin,” who was ultimately chosen for the job unanimously.

But in his April 2020 personnel memo, Rajkovich wrote an entire section dedicated to “The Network Due Diligence Findings and the Chief Judge Final Selection Circumstances.” In it, he expressed qualms about two candidates for the judge position, writing that “based on the Network feedback, I concluded that we could not subject our current ALJ’s, and the staff, to those candidates with such an extensive amount of negatives, particularly regarding their negative attitudes toward women and subordinates.”

The personnel memo predominantly focuses on a commission official who has since retired. The memo cites “Network due diligence” in levying allegations of potential improprieties by the official and includes attacks on the person’s character based on personal assessments that Rajkovich said he had received from “Network” members. It also discusses what Rajkovich describes as a previous internal review of the former official's conduct.

Rajkovich asked that the memo be placed in the staffer’s personnel file to flag the alleged improprieties to future employers. But Traynor blocked its inclusion in the staffer’s file, raising concerns about the ethics of its contents and how Rajkovich had obtained it.

POLITICO is not naming the former official because the staffer is no longer with the commission and is not subject to any known investigation.

The government’s Prohibited Personnel Practices, which identify banned activities meant to protect the federal merit system, prohibit “requesting or considering recommendations about an employee or applicant unless the recommendation is based on the personal knowledge of the employee or records of the person providing it.” Rajkovich denied to POLITICO he violated any federal hiring guidances.

One of many investigations

The documents have come to light at a time when turmoil at the agency has attracted the attention of Republicans in Congress and an FBI investigation into potential malfeasance among the commission’s professional staffers.

That larger dispute has pitted Rajkovich and Althen against Traynor, whom Biden elevated to the chair’s role last year. Burr and Sen. Mike Braun (R-Ind.) urged Biden in an April 5 letter to fire Traynor, citing allegations from Rajkovich and Althen that the chair has overstepped his authority and created a hostile work environment.

Rajkovich and Althen wrote to the Senate committee Feb. 15, alleging that Traynor had retaliated against two career staffers. Burr and Braun’s letter asking Biden to fire Traynor cites as an example of hostile behavior Traynor’s moves to put one of the career employees on leave for “unexplained reasons.” However, the letter also ties the allegation with Traynor’s intervention to keep Rajkovich’s personnel memo out of the since-retired staffer’s file.

In an interview with POLITICO, Althen accused Traynor of intimidating and micromanaging staffers in the commission’s Office of General Counsel, decrying the chair as “an asshole, excuse my language. But he has alienated everybody on the legal team.”

Traynor responded in his own April 5 letter to the Senate HELP Committee, saying he had placed the career staffers, General Counsel Michael McCord and Executive Director Lisa Boyd, on administrative leave at the recommendation of the White House Office of Personnel Management after uncovering signs of considerable financial and administrative mismanagement, including “millions of dollars in improper contracting and procurement; abuse of a pandemic relief program costing the government hundreds of thousands of dollars; individual time-card fraud; and various attempts to avoid discovery and disclosure of these illegal activities.”

“It was in this context that I repeatedly instructed McCord to enforce ethical standards in the Office of General Counsel, especially among a small fraction of staff attorneys under his supervision who had been derelict in their duties,” he writes.

McCord did not respond to POLITICO’s requests for comment. Stephanie Rapp-Tully, an attorney for Boyd, told POLITICO: “We are aware there is a pending investigation involving Ms. Boyd. Ms. Boyd denies any wrongdoing and looks forward to the resolution of this investigation, and we will be issuing no further comment at this time.”

The commission’s chief operating officer, Leslie Bayless, had initially reported the evidence of potential malfeasance to the Administrative Resource Center in the Treasury Department’s Bureau of the Fiscal Service, Traynor writes (the center was the commission’s human resources services provider at the time). That office recommended referring the matter to the FBI, which has since subpoenaed documents from the agency, POLITICO’s E&E News reported last week.

But the White House Office of Personnel Management later took over the investigation after Rajkovich intervened in the probe — an intervention Rajkovich acknowledged in a Feb. 14, 2022, email exchange with Traynor obtained by POLITICO.

“I have been informed that you have contacted BFS and informed them they are not to follow my direction with respect to any administrative disciplinary investigation of Mike McCord,” Traynor wrote in an email to Rajkovich. “Is this true?”

“That is true,” Rajkovich responded.

Rajkovich and Althen maintain that a majority of the commission should sign off on management decisions. But Oppegard, the labor lawyer, and Stock, the former FMSHRC general counsel, said the chair has always had unilateral authority on the agency’s management.

Oppegard called it “a ridiculous argument” for the other commissioners to use Traynor’s interpretation of the chair’s authority as a sign of hostile management.

“There may have been internal dissension before and fights, and there probably have been,” Oppegard said. “I've never been aware of, you know, airing of dirty laundry like this before.”

In his April 19 letter to Burr, Rajkovich denied allegations that Traynor had lodged against him, including accusations that Rajkovich had interfered with the investigation.

Rajkovich wrote that he had contacted the Bureau of the Fiscal Service to ask if there had been a probe into the general counsel and said any disciplinary action had not gotten approval from a majority of the commissioners. He added that he had “no knowledge as to why BFS made the decision to” withdraw from the case.

Rajkovich also denied that he, Boyd or McCord had ever engaged in or signed off on any kind of professional malfeasance.

“During my tenure as Commissioner, I have formed the opinion that the people named in Chair Traynor’s letter are experts at their jobs, honest and hard-working, and credits to our commission,” he wrote.