United States General Accounting Office

GAO Testimony

Before the Committee on Governmental Affairs, U.S.

Senate

For Release on

Delivery Expected

at 10:00 a.m., EST

Wednesday,

March 18, 1998

VACANCIES ACT

Executive Branch

Noncompliance

Statement of

Joan M. Hollenbach

Associate General Counsel

GAO/T-OGC-98-39

Mr. Chairman, Senator Glenn, and Members of the Committee: I am

pleased to appear before you today to discuss the General Accounting

Office’s views on the application of the Vacancies Act to positions that

require Senate confirmation. As you know, GAO has long maintained that

except in limited circumstances, the Vacancies Act is the exclusive

authority for temporarily filling vacant positions that require Senate

confirmation. Provisions in general enabling statutes that give the head of

the department or agency the authority to exercise the functions of the

department and to delegate these functions to others are insufficient to

preclude application of the Act.

The Vacancies Act sets forth methods for temporarily filling vacant

positions in Executive agencies and military departments that require

Presidential appointment with the advice and consent of the Senate. The

vacancies must have been created by the death, resignation, sickness or

absence of the incumbent and cannot arise because of the creation of a

new office or position. The Act provides two methods for the temporary

filling of vacant positions. According to 5 U.S.C. §§ 3345 and 3346, the first

assistant of the office may fill the position on a temporary basis. If the first

assistant does not fill the position, then according to section 3347, any

officer, including the head of another Executive or military department,

whose regular appointment was made by the President with Senate

confirmation, may serve in the office on a temporary basis. Significantly,

section 3349 makes these methods the sole means for temporarily filling

the vacancies covered by the Act, except when a vacancy occurs during a

Senate recess. Once a vacancy is temporarily filled, special rules apply to

the length of time an official may serve in an “acting” capacity. Section

3348 provides that as a general rule the position may not be filled

temporarily for more than 120 days. There are, however, exceptions to the

rule if a nomination has been made to the Senate, the vacancy occurs

during an adjournment of Congress sine die or the vacancy is filled during

a recess of the Congress. In these circumstances, a person may generally

continue in the office past the 120 days.

Over the years we have often been called upon by Members of Congress to

issue opinions concerning officials who are serving in “acting” capacities

in various Executive departments or agencies without Senate

confirmation. In a long line of cases beginning in 1973, the Comptroller

General has maintained that the Vacancies Act is the exclusive authority

for the temporary filling of vacant positions that require presidential

appointment and Senate confirmation. We believe that the application of

the Vacancies Act can be superseded only if there is specific statutory

Page 1 GAO/T-OGC-98-39
language providing another means for filling the particular vacancy in

question. For example, in a 1988 case we were asked whether the position

of Acting Administrator at GSA was subject to the Vacancies Act. Because

Congress had specifically provided in GSA’s enabling statute that the

President could appoint any officer of the government to serve in that

capacity, we held that the position was not subject to the Vacancies Act if

it was filled in the manner prescribed by the statute. Similarly, in a 1981

decision we noted that a provision in the enabling statute of the

Department of Energy provides that the Deputy Secretary shall act for the

Secretary when that office is vacant. Accordingly, we concluded that the

Vacancies Act did not apply to the Acting Secretary position if this

provision were followed in filling the vacancy. In an earlier decision in

1976, we reached a similar conclusion with respect to a vacancy in the

position of Deputy Administrator of the Drug Enforcement Agency. In

each of these cases, Congress provided independent statutory authority to

fill a specific vacancy and therefore the time limitations of the Vacancies

Act do not apply.

The Justice Department and other Executive departments have taken

exception to our opinion. They maintain that the Vacancies Act can be

overcome by provisions in their enabling statutes that vest the functions of

the department in the agency head and give general authority to this

official to assign functions and delegate authority within the department.

We fundamentally disagree with these arguments. The position of Justice

and the other departments is not supported by the language of the

Vacancies Act or the enabling statutes which are cited. Moreover, the

legislative history of the Vacancies Act, including the 1988 amendments

thereto, as well as the Department of Justice Act of 1870 and various

reorganization plans do not support their position. By passing legislation

providing for an alternative means for filling specific vacancies in some

cases, Congress has shown that it knows how to provide for independent

statutory authority separate and apart from the Vacancies Act. If the

position of the Justice Department and other departments is accepted,

these specific provisions would be redundant and need not have been

enacted.

The Vacancies Act is an important means to safeguard the delicate balance

established by the Appropriations Clause of the Constitution between the

President and the Senate in the appointments process. Since many

Executive departments have provisions in their enabling statutes vesting

authority in the agency head and permitting delegations of authority, the

position of Justice and the other Executive departments would, in effect,

Page 2 GAO/T-OGC-98-39
virtually nullify the prohibitions contained in the Vacancies Act. We do not

believe Congress could have intended this to occur.

The Administration’s continued disregard of the Vacancies Act in the face

of congressional intent, numerous Comptroller General opinions, and

heightened congressional and public scrutiny, suggests that the Congress

consider additional action to assure compliance. We believe that the

Congress should consider amending the Vacancies Act to:

• explicitly provide that the Vacancies Act can be superseded only by

another statute that provides an alternative means for filling a specific,

identified vacancy. This would remove any doubt that the basic

authorizing statutes of the Justice Department and others do not preclude

application of the Vacancies Act.

• prohibit salary payments to those who occupy positions in violation of the

Vacancies Act, regardless of whether that individual is also

simultaneously, lawfully occupying another position. This would provide

an incentive for the President and those filling the vacancies to comply

with the Act.

• include a reporting mechanism, such as requiring agencies to advise this

Committee or the Comptroller General about vacancies, their duration,

and nominations. This would provide oversight to help assure that

vacancies in the government’s most responsible positions are timely filled.

Although we believe that the Vacancies Act is clear, amendment of the Act

to clarify congressional intent could help insure that the Act is followed

and that the President acts in a judicious manner to make appointments

which are subject to Senate scrutiny.

This concludes my prepared statement Mr. Chairman, and I would

welcome any question you or other Members of the Committee may have.

Page 3 GAO/T-OGC-98-39
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