GAO-02-272R Vacancies Reform Act

United States General Accounting Office

Washington, DC 20548

December 7, 2001

The Honorable Joseph I. Lieberman

Chairman

The Honorable Fred Thompson

Ranking Minority Member

Committee on Governmental Affairs

United States Senate

The Honorable Dan Burton

Chairman

The Honorable Henry A. Waxman

Ranking Minority Member

Committee on Government Reform

House of Representatives

Subject: Changed Interpretation of Requirements Related to First Assistants Under the

Federal Vacancies Reform Act of 1998

The Congress passed the Federal Vacancies Reform Act of 19981 (Vacancies Reform

Act) to establish, among other things, new requirements for the temporary filling of

vacant executive agency positions that require presidential appointment and Senate

confirmation (PAS positions). The act provides that only certain classes of individuals

may serve as acting officers2

 and that, in the absence of a designation by the President

of another qualified individual, a first assistant of a vacant office shall perform the

functions and duties of the office temporarily.3 This letter is to inform you that the

Department of Justice has recently changed its interpretation of the circumstances

under which a first assistant may serve on an acting basis.

The Vacancies Reform Act provides that when PAS positions covered by the act

become vacant, "the first assistant to the office of such officer shall perform the

functions and duties of the office temporarily in an acting capacity subject to the time

limitations" established under the act. 4 The act also provides that the first assistant is

not eligible to serve as the acting officer if:

(A)during the 365-day period preceding the date of the death, resignation, or

beginning of inability to serve, such person—

 1

 5 U.S.C. §§ 3345 – 3349d.

2

 5 U.S.C. § 3345.

3

 5 U.S.C. § 3345(a)(1)(2) and (3).

4

 5 U.S.C. § 3345(a)(1).
Page 2 GAO-02-272R Vacancies Reform Act

(i) did not serve in the position of first assistant to the office of such

officer; or

(ii) served in the position of first assistant to the office of such officer

for less than 90 days; and

(B)the President submits a nomination of such person to the Senate for

appointment to such office." (5 U.S.C. 3345(b)(1))

Justice's guidance to agencies on this provision of the Vacancies Reform Act, issued in

March 1999, addressed the question of whether a person needed to be in the first

assistant position before the vacancy occurred to qualify to become the acting officer.

This initial guidance said that "while the Vacancies Reform Act does not expressly

address this question, we believe that the better understanding is that you must be the

first assistant when the vacancy occurs in order to be the acting officer by virtue of

being the first assistant." Subsequently, Justice revisited this question and concluded

that someone who becomes the first assistant after a vacancy in a PAS position can

temporarily serve in that position on an acting basis as long as that person is not

nominated for the vacant position. After considering Justice's position, we find it

reasonable and concur with it.

We are informing you of the changed interpretation because, in preparing earlier

reports and correspondence dealing with the Vacancies Reform Act, we used language

similar to that in Justice's previous interpretation indicating that a person needed to be

a first assistant before a vacancy occurred to qualify to serve as acting officer. We now

take the position that a person need not have been in the first assistant position before

the vacancy occurs in order to serve as acting officer, unless that person is also

nominated for the position. The effect of Justice's new interpretation is that heads of

agencies have greater flexibility than under the previous interpretation to designate

individuals to serve on a temporary basis in PAS positions. Agency heads can name an

individual to the first assistant position (if it is not itself a PAS position) after a vacancy

has occurred and that person could then act temporarily in the office up to the time

limits allowed for acting officers under the Vacancies Reform Act as long as the person

is not nominated for the position.

We are sending copies of this letter to the Attorney General and the Counsel to the

President. This letter will also be available on GAO's home page at http://www.gao.gov.

If you have any questions, please contact me or Tom Dowdal, Assistant Director, on

(202)512-6806. V. Bruce Goddard and Michael Volpe also made key contributions to

this letter.

Victor S. Rezendes

Managing Director, Strategic Issues

(450081)