**B-331539**                      Sep 18, 2020                  

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## Highlights

Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (herein "the Vacancies Reform Act" or "Act") at the Department of Housing and Urban Development (HUD), Government National Mortgage Association (GNMA) with respect to the GNMA President position. Pub. L. No. 105-277, div. C, title I, 112 Stat. 2681-611 (Oct. 21, 1998), as amended, 5 U.S.C. §§ 3345–3349d. Specifically, we are reporting that the service of Michael Bright as Acting President from November 17, 2017, until January 3, 2019, and the service of Maren Kasper as Acting President from August 2, 2019, until on or about October 15, 2019, were in violation of the Act. Because no one is currently using the acting title, there is no continuing violation.

B-331539

September 18, 2020

The President        The White House

Subject:  *Violation of the Time        Limit Imposed by the Federal Vacancies Reform Act of 1998:President of the        Government National Mortgage Association*

Dear Mr. President:

Pursuant to section 3349(b) of title 5 of the United        States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998        (herein “the Vacancies Reform Act” or “Act”) at the Department of Housing and Urban        Development (HUD), Government National Mortgage Association (GNMA) with respect to the GNMA        President position.  Pub. L. No. 105-277, div. C, title I, 112 Stat. 2681-611 (Oct.        21, 1998), as amended, 5 U.S.C. §§ 3345–3349d.  Specifically, we are reporting        that the service of Michael Bright as Acting President from November 17, 2017, until        January 3, 2019, and the service of Maren Kasper as Acting President from August 2, 2019,        until on or about October 15, 2019, were in violation of the Act.  Because no one is        currently using the acting title, there is no continuing violation.

The Vacancies Reform Act establishes requirements for temporarily authorizing an acting        official to perform the functions and duties of certain vacant positions that require        presidential appointment and Senate confirmation.  Generally, the Vacancies Reform Act        limits the service of an acting official to 210 days beginning on the date the vacancy        occurs.  5 U.S.C. § 3346(a).  In the year of a transitional presidential        inauguration, such as 2017, the Act permits an acting official to serve for 300 days after        the vacancy occurs with respect to any vacancy that exists during the 60-day period        beginning on the transitional inauguration date.  5 U.S.C. § 3349a(b). 

Additionally, acting service is also permissible while a first or second nomination for        the office is pending in the Senate and for up to 210 days after the date that a first or        second nomination is rejected, withdrawn, or returned by the Senate.  5 U.S.C. §        3346.  However, the Vacancies Reform Act prohibits a nominee from serving as the        acting official unless the nominee was the first assistant to the vacant position and        served as such for at least 90 days out of the previous 365 days before the vacancy        began.  5 U.S.C. § 3345(b). 

Under the provisions of section 3349(b), the Comptroller General is required, upon a        determination that an acting official has served longer than the allowable period of        service, to report this finding to Congress, the President, and the Office of Personnel        Management.

HUD reported to us that a vacancy in the position of GNMA President began on January 20,        2017,[1] and that        Nancy Corsiglia was designated Acting President at that time.[2]  GAO’s Executive Vacancy System.         HUD next reported Mr. Bright was designated Acting President on July 11, 2017, and served        until January 16, 2019.  *Id. * HUD also reported Mr. Bright was nominated        to serve as President of GNMA on June 7, 2018, and that the nomination was returned by the        Senate on January 3, 2019.  *Id. * The agency also reported that Ms. Kasper        was designated as the Acting President on January 17, 2019, and that her service ended on        August 1, 2019.  *Id.* 

In accordance with the Vacancies Reform Act, the 300-day        period of permissible acting service began on January 20, 2017, when the vacancy occurred,        which was a transitional inauguration day, and ended on November 16, 2017.  Thus, the        position of President should have been vacant beginning on November 17, 2017.         However, as HUD reported, Mr. Bright continued to serve as Acting President after this        date.  We have previously determined that using the acting title of a position during        the period in which the position should be vacant violates the time limitations in the        Vacancies Reform Act.  *See*, *e.g.*, B-318244, June 18, 2014; B-287720,        May 18, 2001.  Here, Mr. Bright was not authorized to continue serving using the        title of Acting President from November 17, 2017, to June 6, 2018, the date prior to his        nomination.

As previously mentioned, Mr. Bright was nominated to the position on June 7, 2018.         While a first or second nomination generally permits an acting official to serve while the        nomination is pending before the Senate, a nominee can only serve as the acting official if        the person was the first assistant to the vacant position and served as such for at least        90 days out of the previous 365 days before the vacancy began.  5 U.S.C. § 3345(b).Mr.        Bright did not become the Executive Vice President and Chief Operating Officer of GNMA        until July 11, 2017, the same day he became the acting official.  Because he became        the first assistant after the vacancy began, he was ineligible to continue serving as the        acting official after his nomination.  This means his service as the acting official        from June 7, 2018, to January 3, 2019, was also in violation of the Vacancies Reform        Act.

When a first or second nomination is rejected, returned,        or withdrawn, another 210-day period of permissible acting service begins anew.  5        U.S.C. § 3346.  When Mr. Bright’s nomination was returned on January 3, 2019, the new        210-day period began on January 3 and ended on August 1, 2019.         While HUD reported Ms. Kasper ended her acting service on        August 1, the GNMA website continued to list her as Acting President until on or about        October 15, 2019.  When we inquired about a potential violation of the permissible        period of acting service, HUD acknowledged that the website mistakenly listed Ms. Kasper as        Acting President after August 1, 2019, but that the website had been        corrected.  Letter from Deputy Assistant General        Counsel, GAO, to General Counsel, HUD, Nov. 13, 2019; letter from General Counsel, HUD, to        Deputy Assistant General Counsel, GAO, Dec. 19, 2019.However, we find thatby holding Ms.        Kasper out to the public as Acting President when the position should have been vacant, the        agency violated the time limitations in the Vacancies Reform Act. 

In accordance with the requirements of the Vacancies Reform Act, we are sending letters        reporting this violation to the chairs and ranking members of the Senate Committee on        Homeland Security and Governmental Affairs, the House Committee on Oversight and Reform,        the Senate and House Committees on Appropriations, the Senate Committee on Banking,        Housing, and Urban Affairs, the House Committee on Financial Services, and the Acting        Director of the Office of Personnel Management.

If you have any questions regarding this matter, please contact Shirley A. Jones,        Managing Associate General Counsel, at 202-512-8156 or Shari Brewster, Assistant General        Counsel, at 202-512-6398.

Sincerely yours,

        Thomas H. Armstrong        General Counsel

----

[1]The            vacancy began due to the resignation of Theodore Tozer.

[2]The            Vacancies Reform Act does not require agencies to report when an individual            discontinues service as the acting official and HUD did not do so with regard to Ms.            Corsiglia.  It is clear, however, that her period of acting service did not            violate the time period limitation.

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