Eligibility Criteria for Individuals to Temporarily Fill Vacant
Positions Under the Federal Vacancies Reform Act of 1998
(23-FEB-01, GAO-01-468R).
This correspondence describes the criteria that must be met
before an individual is appointed to temporarily fill a vacant
executive position that requires presidential appointment and
Senate confirmation (PAS). GAO found that eligibility can be
based on (1) service as a first assistant to the former holder of
the position, (2) service in another PAS position, (3) service as
a senior agency official, and (4) service in a term limited PAS
position for which the president has nominated the individual to
another term without a break in service. Documentation ensuring
that the eligibility requirements have been met can include (1)
copies of the statute, regulation, or other documentation that
designates the individual's position as first assistant to the
vacant position, (2) copies of documents showing that the
official is a PAS official, and (3) a presidential directive that
the official whose term was expiring should continue to serve in
that position in an acting capacity.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-01-468R
ACCNO: 164546
TITLE: Eligibility Criteria for Individuals to Temporarily Fill
Vacant Positions Under the Federal Vacancies Reform Act of 1998
DATE: 02/23/2001
SUBJECT: Congressional oversight
Congressional/executive relations
Eligibility criteria
Presidential appointments
Public officials
Temporary promotions
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GAO-01-468R
Vacancies Reform Act United States General Accounting Office
Washington, DC 20548
February 23, 2001 The Honorable Fred Thompson Chairman, Committee on
Governmental Affairs United States Senate
Subject: Eligibility Criteria for Individuals to Temporarily Fill Vacant
Positions Under the Federal Vacancies Reform Act of 1998
Dear Mr. Chairman: The Federal Vacancies Reform Act of 1998 (Vacancies
Reform Act), which took effect on November 21, 1998, provided new
requirements for the temporary filling of certain vacant executive agency
positions that require presidential appointment and Senate confirmation (PAS
positions). 1 The Vacancies Reform Act is intended to create a clear process
and a time limit for the temporary filling of those PAS positions. For
example, it generally limits the period in which vacant PAS positions can be
filled on a temporary basis to 210 days, with the 210 days beginning on the
date the vacancy occurred. At the end of the 210- day limit, the position
can no longer be filled on an acting basis. The Vacancies Reform Act extends
or resets the 210- day period under certain circumstances, such as during
Presidential inaugural transitions or when a nomination is pending before
Congress. It also provides specific criteria that must be met in order for
individuals to temporarily fill vacant PAS positions. At your request, we
are reviewing agencies' implementation of the Act. We provided you with an
interim report on our work in a September 29, 2000, correspondence. 2
As part of our work, you asked that we provide this letter describing (1)
the criteria that must be met in order for someone to temporarily fill a
vacant PAS position under the Act and (2) the types of documents that are
relevant to showing that the criteria are met. We reviewed the statute and
its legislative history to identify the eligibility criteria that must be
met and used our experience in personnel matters to identify the
1 The Act (5 U. S. C. sect.sect. 3345- 3349d.) excludes from its coverage certain
specified officers such as any member of a board or commission that is
composed of multiple members and governs an independent establishment or
Government corporation. In addition, the Act recognizes that there are other
mechanisms, such as specified statutes, that allow acting officials to fill
vacant PAS positions on a temporary basis outside of the Vacancies Reform
Act. 2 Implementation of the Federal Vacancies Reform Act of 1998 (GAO/ GGD-
00- 210R, Sept. 29, 2000).
GAO- 01- 468R Vacancies Reform Act Page 2 types of personnel records that
would demonstrate adherence to the required
criteria. We discussed both the eligibility criteria and the types of
relevant documentation with officials from the White House Counsel's Office
and Office of Presidential Personnel from the Clinton Administration and
from the departments of Commerce, Defense, Interior, Labor, Transportation,
and the Treasury.
The Act specifies the eligibility criteria that must be met in order for an
individual to serve in an acting capacity. Eligibility can be based on (1)
service as a first assistant to the former holder of the position; (2)
service in another PAS position; (3) service as a senior agency official; or
(4) service in a term limited PAS position for which the President has
nominated the individual to another term without a break in service.
We discuss each of the four ways that an individual may be eligible to serve
as an acting official and the eligibility criteria for each situation below.
We also discuss the types of documentation that would verify an official's
eligibility to serve in an acting capacity. 3
Eligibility Based on Service as a First Assistant
The Vacancies Reform Act provides that the first assistant to the office of
the officer who has left the position vacant (under specified circumstances)
may temporarily perform the functions and duties of the PAS position in an
acting capacity subject to the Act's time limitations. Although the Act does
not define the term “first assistant,” the legislative history
indicates that first assistant positions may be designated by statute or
regulation. Agencies have also designated first assistants in agency orders,
agency directives, and position descriptions.
The Vacancies Reform Act also limits a first assistant's ability to act in a
PAS position if the first assistant is also nominated to the same PAS
position. If the President nominates the first assistant for the vacant
position, the first assistant may continue to serve as the acting official
for that position only if (1) the person served as first assistant for 90
days or more during the 365- day period prior to the vacancy, or (2) the
position of the first assistant is itself a PAS position and the Senate
approved the appointment of the first assistant to that position.
The following documents are relevant to showing whether a person may serve
in an acting capacity because he or she was a first assistant.
Copies of the statute, regulation, or other documentation that designates
the individual's position as first assistant to the vacant position. The
document( s) used to designate the position as the first assistant position
should be dated, to verify that the position (and individual) was designated
as first assistant prior to the occurrence of the vacancy.
Standard Form( s) 50-- Notification of Personnel Action. These forms, along
with other documentation, are useful to demonstrate that an individual held
the first
3 The suggested documents are not meant to be all- inclusive. Agencies may
have other forms of documentation to demonstrate that eligibility criteria
are met.
GAO- 01- 468R Vacancies Reform Act Page 3 assistant position and the time
period an individual served in the first assistant
position. Thus, in cases where the first assistant is nominated for the
office, the SF-- 50's would assist in showing whether the individual was
first assistant for 90 days or more during the 365 days preceding the
vacancy.
If the position of first assistant is also a PAS position, thereby allowing
the individual to be the nominee and to continue service as an acting
official, documentation that the person was serving in a Presidentially
appointed, Senate confirmed position.
Eligibility Based on Service in a Presidentially Appointed, Senate Confirmed
Position
The Vacancies Reform Act provides that a PAS official may serve as an acting
official in a vacant position at the direction of the President. The Act
does not impose any limitations on which PAS officials the President may
designate. There are no previous length of service requirements, and the
designated PAS official does not need to be from the same agency as that in
which the vacancy occurred.
In placing a PAS official in another PAS position in an acting capacity, the
following documents are relevant to showing whether the PAS official meets
the Act's requirements:
Copies of documents showing the individual to be a PAS official. Such
documents could include the White House commission or other evidence from
the White House clerk's office showing that the individual was appointed to
a PAS position, a statute designating the individual's position to be a PAS
position, a Standard Form 50-- Notification of Personnel Action showing the
individual's position, and the Congressional Record showing the individual
was confirmed for a PAS position.
A copy of the President's designation of the PAS official to serve as the
acting official in the vacant position.
Eligibility Based on Service as a Senior Agency Official
The President may designate a senior agency official to serve as the acting
official for a vacant position. The Vacancies Reform Act places a number of
limitations on which agency employees qualify to be designated as senior
agency officials. First, the senior agency official must be from the same
agency in which the vacancy occurs. Second, the senior agency official must
have served within the agency for not less than 90 days during the 365 days
preceding the vacancy. Third, the senior agency official must have served at
the rate of pay of GS- 15, step 1 level or above.
The following documents are relevant to showing whether a person may serve
in an acting capacity as a senior agency official:
GAO- 01- 468R Vacancies Reform Act Page 4
Standard Form( s) 50-- Notification of Personnel Action would demonstrate
whether the senior agency official's rate of pay is at the GS- 15, step 1
level or above, and whether the official served in the agency for 90 days or
more at the minimum rate or higher during the 365 days preceding the
vacancy.
A copy of the President's designation of the senior agency official to serve
in the vacant position in an acting capacity.
Eligibility Based on Reappointment to a Term- Limited Position
For PAS positions that have a limited term of service, the President may
direct an official whose term is expiring to continue to serve in that
position in an acting capacity. However, for such an official to qualify to
serve in an acting status, the President must nominate the official for an
additional term without a break in service.
Documents that would assist in showing that the above requirements are met
include:
Presidential appointment documents showing the individual had been appointed
to the term- limited PAS position and the term of the appointment.
The Presidential directive that the official whose term was expiring should
continue to serve in that position in an acting capacity.
The nomination by the President for reappointment and the date of the
nomination. This would show whether the nomination for reappointment
occurred without a break in service.
Standard Form 50-- Notification of Personnel Action. This would show that
the official was serving in the position having a limited term of service
without a break in service.
- - - - As agreed with your office, we are sending copies of this letter to
Senator Joseph I. Lieberman, Ranking Member, Senate Committee on
Governmental Affairs; Senators Thad Cochran, Chairman, and Daniel K. Akaka,
Ranking Member, Subcommittee on International Security, Proliferation, and
Federal Services, Senate Committee on Governmental Affairs; Senators George
V. Voinovich, Chairman, and Richard J. Durbin, Ranking Member, Subcommittee
on Oversight of Government Management, Restructuring, and the District of
Columbia, Senate Committee on Governmental Affairs; Representatives Dan
Burton, Chairman, and Henry A. Waxman, Ranking Minority Member, House
Committee on Government Reform; Representatives Joe Scarborough, Chairman,
and Danny Davis, Ranking Minority Member, Subcommittee on Civil Service and
Agency Organization, House Committee on Government Reform; Mr. Timothy E.
Flanigan, Deputy Counsel to the President; Mr. Clay S. Johnson, Director,
Office of Presidential Personnel; Mr. Steven R. Cohen, Acting Director,
Office of Personnel Management; and the Honorable Mitchell E. Daniels, Jr.,
Director,
GAO- 01- 468R Vacancies Reform Act Page 5 Office of Management and Budget.
In addition, we will send copies to other
congressional committees, the heads of agencies discussed in this letter,
and other interested parties. The letter will also be available on GAO's
home page at http:// www. gao. gov.
Please contact Mr. Richard Caradine, Assistant Director, or me on (202) 512-
6806 if you have any questions.
Sincerely yours, Carlotta C. Joyner Director, Strategic Issues
*** End of document ***