Violation of the 210-Day Limit Imposed by the Vacancies Reform Act, B-287720, May 18, 2001

TITLE:   Violation of the 210-Day Limit Imposed by the Vacancies Reform Act, B-287720, May 18, 2001
BNUMBER:  B-287720
DATE:  May 18, 2001
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Violation of the 210-Day Limit Imposed by the Vacancies Reform Act,
B-287720, May 18, 2001

B-287720

May 18, 2001

The President

The White House

Subject: Violation of the 210-Day Limit Imposed by the Vacancies Reform Act

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 (Vacancies
Reform Act). [1] We have found that, during the last administration, the
acting Director of the Institute of Museum and Library Services (Institute)
had served longer than the 210-day period allowed under the Act. However,
with the recent Presidential transition and the application of the
Presidential inaugural transition provision [2] of the Vacancies Reform Act,
it is our view that an acting Director may, as of January 20, 2001, once
again temporarily serve at the Institute for the time period allowed [3]
under the Presidential inaugural transition provision. Therefore, no action
need be taken at this time since there is no current violation of the Act.

The Vacancies Reform Act

The Vacancies Reform Act established new requirements for the temporary
filling of vacant executive agency positions that require Presidential
appointment and Senate confirmation (PAS positions). The Act generally
limits the period of time such a position may be temporarily filled to 210
days with adjustments extending that time period in certain circumstances,
such as when the President submits a nomination for the position to the
Senate. [4] The Act also requires executive agencies to report to the
Congress and the Comptroller General specific information relating to
covered vacancies. [5] Of particular relevance here is that agencies are to
report a vacancy and the date such vacancy occurred and the name of any
person serving in an acting capacity and the date such service began. [6]
The Act also provides that the Comptroller General is to report to specified
congressional committees, the President, and the Office of Personnel
Management if the Comptroller General determines that an acting officer in a
covered position is serving longer than the 210 days permitted by the Act.
[7]

Acting Director of the Institute

During our review of the Vacancies Reform Act's implementation, we sent to
62 federal agencies including the Institute a questionnaire requesting
information on the status of PAS positions. The Institute responded that the
position of Director became vacant on April 1, 1999, and that the Deputy
Director of the Office of Museum Services became the acting Director on the
same day and was acting in the Director's position until the time the
questionnaire was returned to GAO. Since this information indicated that the
acting Director had exceeded the 210-day limit, and since we had not
received from the Institute a report of a vacancy in the Director's position
or a report of the presence of an acting official temporarily filling the
Director's position, we made further inquiries at the Institute.

In response to our query as to why we had not received a report on the
vacancy and the acting official, the Institute informed us that it had
reported the fact of the vacancy and the presence of the acting official by
sending notification to the White House. At the time the vacancy at the
Institute occurred, the prior administration required agencies to report
vacancies; persons serving in acting capacities; nominations; and
rejections, withdrawals, or returns of nominations to the White House rather
than directly to the Congress and GAO. As stated, however, we never received
notification of the vacancy or the acting official's service. [8] (The prior
administration's practice has since been changed by the present
administration, which has directed agencies to report these matters directly
to the Congress and to GAO.)

The Institute has one PAS official, the Director, and it has two Deputy
Directors, one for the Office of Museum Services and one for the Office of
Library Services, neither of which are PAS positions. On March 5, 1999, the
Director of the Institute, knowing that she would be leaving her position in
the near future, designated the Deputy Director of the Office of Museum
Services of the Institute as first assistant to the office of Director and
communicated this information to the Director of the Office of Presidential
Personnel at the White House. As stated above, on April 1, 1999, the Deputy
Director of the Office of Museum Services began serving as acting Director
when the prior Director vacated the office.

We were informed by the Institute that on October 27, 1999, Institute
officials, knowing that the 210-day time limit for acting service would soon
expire, met with the Department of Justice and subsequently delegated the
functions and duties of the Director of the Institute to the Deputy Director
of the Office of Museum Services until a Presidential appointment with
Senate confirmation was made. The Institute states that this delegation was
an effort to keep it in compliance with the provisions of the Vacancies
Reform Act.

The Institute informs us that the Deputy Director ceased serving as acting
Director at the expiration of the 210-day time limit. Although the Institute
stated that the Deputy Director of the Office of Museum Services did not
serve as acting Director of the Institute past the 210-day limit, we have
found evidence to the contrary. For example, on April 4, 2000, the Deputy
Director introduced herself to a subcommittee of the House Appropriations
Committee at the Institute's annual appropriations hearing as follows:

"For the past year, I have had the privilege of serving as the acting
director of the Institute of Museum and Library Services." [9]

We have also found other references to the Deputy Director being introduced
as the acting Director. Thus the Deputy Director of the Office of Museum
Services, who became acting Director on April 1, 1999, was still holding
herself out as acting Director of the Institute more than one year later,
well past the 210-day time limit imposed by the Vacancies Reform Act. It is
our view that the Deputy Director of the Office of Museum Services should
not have served in the position of acting Director of the Institute past
October 27, 1999. Accordingly, her service in that capacity after October
27, 1999, exceeded the 210-day time limit in violation of the Vacancies
Reform Act.

The Vacancies Reform Act also states that actions taken by acting officials
in the performance of the functions and duties of the vacant office which
are not delegable and which can only be performed by the holder of that
office shall have no force or effect if they are not taken in accordance
with the provisions of the Act. [10] This would include actions taken by an
acting officer after the 210-day limit has been reached. [11] Although the
acting Director of the Institute improperly exceeded the time limit for
serving in that position, we have been advised by Institute officials that
the acting Director performed no nondelegable functions or duties during the
time period after the 210-day limit expired.

Respectfully yours,

[Image]

Anthony H. Gamboa
General Counsel

Notes

1. 5 U.S.C. sect.sect. 3345-3349d.

2. 5 U.S.C. sect. 3349a.

3. 5 U.S.C. sect. 3349a(b).

4. 5 U.S.C. sect. 3346(a)(1) and (2).

5. 5 U.S.C. sect. 3349(a).

6. 5 U.S.C. sect. 3349(a)(1) and (2). Agencies are also required to report the
name of persons nominated to the Senate to fill a vacancy and the date such
nomination is submitted and the date of rejection, withdrawal, or return of
any nomination immediately upon such rejection, withdrawal, or return.
5 U.S.C. sect. 3349(a)(3) and (4).

7. 5 U.S.C. sect. 3349(b).

8. The Senate Parliamentarian's Office also has no record of receipt of
notices of the vacancy or the acting official's service.

9. Departments of Labor, Health and Human Services, Education, and Related
Agencies Appropriations for 2001: Hearings Before the Subcomm. on the
Departments of Labor, Health and Human Services, Education, and Related
Agencies of the House Comm. on Appropriations, 106th Cong. 1 (2000)
(Testimony of Acting Director).

10. 5 U.S.C. sect. 3348(d)(1).

11. 5 U.S.C. sect.sect. 3346(a)(1) and 3348(d)(1); B-286265, Sept. 15, 2000.