Federal Vacancies Reform Act: Key Elements for Agency Procedures 
for Complying with the Act (15-JUL-03, GAO-03-806).		 
                                                                 
The Federal Vacancies Reform Act of 1998 sets requirements for	 
reporting to Congress and the Comptroller General actions related
to Presidential Appointment with Senate Confirmation (PAS)	 
positions as well as the qualifications for and term limits on	 
acting PAS officers. GAO had reviewed agencies' performance in	 
implementing the Vacancies Reform Act and found substantial	 
problems with their reporting timeliness and compliance with term
limits for acting officials. In this current effort, GAO looked  
at agencies' procedures to identify approaches that could be	 
applied across the government to help assure effective		 
implementation of the act.					 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-03-806 					        
    ACCNO:   A07530						        
  TITLE:     Federal Vacancies Reform Act: Key Elements for Agency    
Procedures for Complying with the Act				 
     DATE:   07/15/2003 
  SUBJECT:   Congressional oversight				 
	     Federal legislation				 
	     Performance measures				 
	     Presidential appointments				 
	     Reporting requirements				 
	     Intergovernmental relations			 

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GAO-03-806

                                       A

Report to the Chairman, Committee on Governmental Affairs, U. S. Senate

July 2003 FEDERAL VACANCIES REFORM ACT

Key Elements for Agency Procedures for Complying with the Act

GAO- 03- 806

Letter

July 15, 2003 The Honorable Susan M. Collins Chairman Committee on
Governmental Affairs United States Senate Dear Chairman Collins: The
Federal Vacancies Reform Act of 1998 1 sets requirements for reporting to
Congress and the Comptroller General actions related to vacancies in
Presidential Appointment with Senate Confirmation (PAS) positions as well
as standards for who can be named to act in these positions when they are
vacant and how long acting officers can serve. In response to an August
1999 request from Senator Fred Thompson, then Chairman of the Committee on
Governmental Affairs, we issued a series of reports that examined
agencies* performance in implementing the Vacancies Reform Act. We found
substantial lags between the times a reportable event, such as the naming
of an acting officer, occurred and the time it was reported, as

well as events that were not reported at all. We also identified instances
where acting officers exceeded the legally allowed maximum period for
serving in that capacity. 2 In this effort, we agreed with Senator
Thompson*s office to look at agencies* procedures for implementing the
act*s requirements and identify any approaches that facilitate prompt and
accurate compliance with the act*s provisions that could be applied across
the government.

The key requirements the act placed on agencies are to (1) report
immediately to Congress and the Comptroller General any vacancy in a PAS
position, the name of an individual serving in an acting capacity in a

PAS position, the date the vacancy occurred, and the name and date of a
nomination for a PAS position and the date of rejection, withdrawal, or
return of any nomination, (2) ensure that persons named to serve in acting
1 5 U. S. C. 3345- 3349d.

2 For example, see U. S General Accounting Office, Violations of the 210-
Day Limit Imposed by the Vacancies Reform Act, B- 286265, Sept. 15, 2000;
Implementation of the Federal Vacancies Reform Act of 1998, GAO/ GGD- 00-
210R (Washington, D. C.: Sept. 29, 2000);

Eligibility Criteria for Individuals to Temporarily Fill Vacant Positions
Under the Federal Vacancies Reform Act of 1998, GAO- 01- 468R (Washington,
D. C.: Feb. 23, 2001); and

Presidential Appointments: Agencies* Compliance With Provisions of the
Federal Vacancies Reform Act of 1998, GAO- 01- 701 (Washington, D. C.: May
31, 2001).

capacities in PAS positions meet the eligibility requirements enumerated
in the act, and (3) ensure that acting PAS officers do not exceed the
limits imposed on the time they can serve. Our objective was to identify
key elements of effective implementation of the Vacancies Reform Act.

To select agencies to review, we used data on how long it took to report
PAS- related events to us. We selected six agencies that had numerous
reportable events and relatively short periods, in at least some cases,
between events occurring and reporting on the events. We selected the
Departments of Commerce, Education, Energy, Health and Human Services,
Transportation, and the Treasury. We visited each agency and met with the
officials involved in implementing the act and discussed their procedures.
We obtained, where available, documentation about the steps the agencies
used. We combined the information obtained at the agencies to look for
common elements that seem to be critical to effective implementation of
the Vacancies Reform Act. Our work was performed from January 2002 through
May 2003 in accordance with generally accepted government auditing
standards.

Results in Brief The reviewed agencies* Vacancies Reform Act compliance
systems varied. We found variation in the components within each agency
assigned primary

responsibility for Vacancies Reform Act functions and variation in the
specific tasks performed by the responsible components to meet the
requirements of the act. Regardless of how the agencies had assigned
responsibilities, we identified five critical elements that are essential
to

Vacancies Reform Act compliance. The first critical element is for
agencies to clearly identify the component responsible for each
requirement under the act and the other components that assist by
providing information. All the agencies that we visited agreed that this
was important. Unless everyone is aware of who does what, it is easy to
assume that another component or staff person will handle a requirement
resulting in tasks being delayed or going undone.

A second critical element, which is a corollary to the first one, is that
staff in the various components that play a role in Vacancies Reform Act
compliance frequently communicate with each other. Agencies cited a number
of examples where the first component or person to learn about a
reportable event was not the one responsible for reporting the event.
Thus, it is essential to timely reporting that information is shared in a
timely

manner. Agencies cited mechanisms like frequent telephone contacts or

weekly meetings of involved staff as ways to ensure that the right people
are informed about events. A third critical element, which is related to
ensuring that only qualified people are made acting officers, is that
agencies have up- to- date lists of the first assistants to each PAS
position. The Vacancies Reform Act specifies that the first assistant
becomes the acting officer unless the President directs someone else who
meets one of the listed qualifications to serve in that role. Normally,
first assistants become the acting officer, and without

an up- to- date list, delays in naming an acting officer can occur and the
possibility exists that an ineligible person could be designated. A fourth
critical element is that agencies document their Vacancies Reform Act
procedures. Although none of the six agencies had done so when we

first visited them, all agreed that documenting procedures would help
agencies ensure compliance during periods of transition. For example, when
staff responsible for Vacancies Reform Act functions leave or are
reassigned, written procedures will let replacement staff know it is their
responsibility to perform the functions and will represent guidelines on
how to meet the responsibility. The officials at all the agencies we
visited agreed on the importance of documenting their procedures and cited
cases where a lack of such documentation had adversely affected compliance
performance. By the end of our fieldwork, all six agencies had begun
efforts and made progress in documenting their procedures.

Finally, agencies should assign Vacancies Reform Act responsibilities to
career employees. This would help provide continuity to the agencies*
compliance activities. Typically, political employees would not be very
familiar with the act*s requirements when they report for duty and they
have a number of other duties that constitute their primary focus and
interest. This can lead to delays or errors in Vacancies Reform Act
compliance. Moreover, political employees tend to turn over more rapidly
than career employees, thus resulting in less continuity. The agencies we
visited had a number of examples in which political employees, such as
White House liaisons, responsible for certain Vacancies Reform Act
requirements, left and it took their replacements a while to get up to
speed because of the press of other matters with, for example, long delays
in reporting vacancy events resulting. This was especially true at the
change of administration when many vacancy events occur and those without

Vacancies Reform Act experience took over responsibility for compliance.
Problems were compounded by the lack of written procedures, as

discussed above, which meant new arrivals had little or no information
from which to start.

We recommend that the Office of Presidential Personnel, which has
responsibilities related to PAS positions governmentwide, encourage all
federal agencies to ensure that their Vacancies Reform Act compliance
standard operating procedures include the key elements identified in this
report. The Office of Counsel to the President commented on the report and
said that the five key elements for effective implementation of the
Vacancies Reform Act were reasonable efforts for agencies to undertake but
that it would prefer that we address the recommendation to all the
agencies with PAS positions covered by the act. We continue to believe
that it is appropriate for the Office of Presidential Personnel to
encourage agencies to implement the key elements.

Background Under the Vacancies Reform Act, if a presidential appointee
covered by the act dies, resigns, or is otherwise unable to perform the
functions and duties

of the office, the requirements of the act must be followed. For covered
PAS vacancies, 3 the act, among other things,

 requires agencies to immediately report to the Senate, the House of
Representatives, and the Comptroller General changes in PAS positions,
including a vacancy and the date it occurs, the name of any person serving
in an acting capacity and the date such service began, the name

of any person nominated to fill a vacancy and the date such nomination is
submitted to the Senate, and any rejection, withdrawal, or return of a
nomination and the related date;

 specifies who may serve as acting officer; and  imposes a time limit on
how long vacancies can be filled by acting

officers. The act specifies four classes of individuals who may serve in
an acting capacity.

3 Some PAS positions are not covered by the act. For example, the act does
not apply to U. S. attorneys and ambassadors or to members of independent
commissions, such as the Securities and Exchange Commission.

 The first assistant to the office of the officer who has left the
position vacant temporarily performs the functions and duties of the PAS
position in an acting capacity subject to the act*s time limitations
unless the President directs someone else to do so under one of the
authorities discussed below.  A PAS official may serve as an acting
official in another PAS position at

the direction of the President.  The President may designate a senior
agency official to serve as the acting official for a vacant PAS position.
The senior agency official must

be from the same agency in which the vacancy occurs and the official*s
rate of pay must have been equal to or greater than the minimum level of
GS- 15 for at least 90 days during the year preceding the vacancy.  For
PAS positions that have limited terms of service (such as those at

independent commissions), officers who are nominated by the President for
additional terms to the same offices without breaks in service may
continue to serve temporarily in those positions in acting

capacities. In addition, the Vacancies Reform Act limits the service of
acting officials to 210 days beginning on the date the vacancy occurred.
At the end of the time limit, no one may serve in the position on an
acting basis. The Vacancies Reform Act extends or resets the 210- day
period under certain circumstances, such as suspending the time limit when
a nomination is pending before the Senate and extending the limit by 90
days with respect to any vacancy existing during the 60- day period
beginning at the start of a new administration. The Vacancies Reform Act
also requires us to inform specified congressional committees, the
President, and the Office of Personnel Management if an acting officer has
served longer than 210 days.

In fulfilling Vacancies Reform Act responsibilities, agencies should make
managers aware of these statutory requirements and assign staff to ensure
that the requirements are followed and reporting is completed in a timely
manner. Hence, along with their responsibility to timely report changes in
PAS positions to Congress and the Comptroller General, it is incumbent
upon agencies to establish effective processes that ensure that persons
serving temporarily in PAS positions meet the statutory qualifications
prescribed by the act and that they do not exceed the act*s time limit for
the service of acting PAS officials.

The Vacancies Reform Act was passed to ensure a clear understanding of
what is to be done when PAS positions become vacant. These positions
constitute the highest level of staff in the federal executive branch,

including the secretaries for cabinet- level departments and their deputy
and assistant secretaries. Because most of these executives typically have
relatively short tenures, positions often are vacated during a
Presidential

term of office. At a change of administration, virtually all PAS positions
are vacated.

After the passage of the Vacancies Reform Act, we together with the
executive branch developed a form, Submission Under the Federal Vacancies
Reform Act, which the White House instructed agencies to use beginning in
July 1999 to notify Congress and GAO of the reportable events under the
Vacancies Reform Act. We also developed a computerized tracking system to
collect and analyze data submitted by agencies. We receive agencies*
reports and enter the data in our tracking system.

The White House*s Office of Presidential Personnel (OPP) has traditionally
assumed the role of recruiting candidates to fill executive appointments.
OPP collaborates with the Counsel to the President to issue policy
memorandums to guide agencies in fulfilling Vacancies Reform Act
requirements. For instance, in March 2001, the Counsel to the President
sent a memorandum to federal executive branch departments and agencies
that provided guidance that streamlined the notification process by
requiring that agencies send notifications directly to Congress and GAO.
Previously, agencies were required to send notifications through an
indirect route that began with submission to OPP, which then forwarded
copies of the submission to the Office of Management and Budget. This
streamlined process was expected to be more efficient.

Our May 2001 report found that agencies had not promptly reported
vacancies and acting officials to Congress and us. In fact, of 90
reportable events among 21 agencies during a nearly 2- year period, 19
percent of vacancies and 24 percent of acting officials had not been
reported at all.

Moreover, for about half the instances that were reported to GAO and
entered into our tracking system, notification was not received until over
4 weeks after the date of occurrence. Thus, it was apparent that agencies
had lax compliance with the reporting requirements of the act.

In addition, we identified five instances where officials exceeded the
act*s time limit. In May 2001, we reported that acting officials at four
agencies had exceeded the act*s 210- day time limit. We also reported in
March 2002

that an acting general counsel at a federal department had exceeded the
time limit. Also, in a November 2001 letter from our General Counsel to
the Counsel to the President, we alerted the White House that our records
indicated the time limits for some 19 acting PAS officials would expire
within 1 week and appropriate action should be taken by affected agencies
to ensure that the time limit was not violated. Subsequent actions were
taken to ensure no violations occurred.

Because our reports concerning the timeliness of agency reporting and our
finding that a number of acting officials had exceeded the time limit
suggest that there were problems with the adequacy of the procedures that
agencies use to comply with the act, Senator Thompson, then Chairman of
the Senate Committee on Governmental Affairs, asked us to look for ways to
facilitate agency compliance. We looked for effective ways that agencies
could implement the act*s requirements by both identifying agency
procedures already in use and additional procedures that could address
problems agencies were having. Critical Elements for

The structure and particulars of Vacancies Reform Act compliance an
Effective Vacancies

processes varied among the agencies that we visited, as did specific steps
taken to ensure that the agencies adhered to the basic requirements of the
Reform Act

act. However, we identified certain critical elements essential to
Vacancies Compliance System Reform Act compliance that all agencies should
find useful. These elements are that, in developing and implementing
procedures, agencies should (1) identify and designate the agency
components that should take the lead responsibility for performing each
Vacancies Reform Act requirement, (2) have frequent communication among
key role players, (3) maintain up- to- date lists of first assistants, (4)
document agency procedures, and (5) assign responsibility for Vacancies
Reform Act

compliance to senior career officials to help ensure continuity. Identify
Agency To establish roles and responsibilities among the various people
involved Components with Vacancies

with Vacancies Reform Act compliance functions, agencies should clearly
Reform Act Implementation

identify the components that are responsible for compliance with each
Roles

requirement of the act and the other components that assist by providing
information. The individual positions in each of the components whose
incumbents are responsible for Vacancies Reform Act functions should also
be identified. If an agency does not identify specific components that are
responsible for specific compliance efforts, it risks that tasks will not

be completed. For example, one component of an agency could, erroneously,
assume that another component is responsible for fulfilling a Vacancy
Reform Act requirement while that component assumes that the other is
responsible. As a result, neither component performs the function so it
does not get done or is not timely completed. The six agencies in our
survey all provided evidence that they appreciated

the importance of designating lead components for each function because
each agency had in effect done so. Agencies described how assigning
responsibility for Vacancies Reform Act compliance to specific components
helped prevent problems from arising. For example, at the

Department of Transportation, an official in its Office of General Counsel
had responsibility for ensuring compliance with all requirements under the
act. This official developed and transmitted reports of changes in PAS
positions to Congress and us and was responsible for ensuring that the
qualifications and time limit requirements for acting PAS officials were
met. Other staff, such as those in the agency*s Personnel and Legislative
Affairs offices, assisted this individual by sharing information, as it
became available, on PAS position changes.

Another example was found at the Department of Energy where specified
staff in the Executive Resources Office were responsible for reporting
changes in PAS positions, and a designated attorney in Energy*s Office of
General Counsel advised them about the acting officers* qualifications and
kept a log of when time limits would expire. Role Players Should

Another critical element is that staff in the various components that play
a Regularly Communicate

role in Vacancies Reform Act compliance communicate frequently with with
Each Other

each other. For example, because the individual who is responsible for
reporting the event (or tracking acting officers* time limits) may not be
the first to learn about a reportable event (or one that affects the time
limit on an acting officer), communication is essential to ensure
compliance. We learned that there were often variations in which an agency
official is

the first to become aware of a reportable event. This information must be
quickly communicated to the responsible component and to the specific
staff member who is to report the event for timely reporting. Officials at
agencies described how constant communication had been an effective tool
in achieving compliance objectives. For example, at Energy, to ensure that
acting PAS officers do not exceed the time limit, an Office of General

Counsel official said that she establishes the time limit for each acting
PAS

officer when he or she is initially designated. The staff involved in
Vacancies Reform Act functions meet weekly. During the meetings, events
that affect the time limit come up and the Office of General Counsel
official adjusts the limit accordingly. Also, reportable events are
discussed at the meeting, which helps ensure that they get reported
quickly. At Transportation, the key official responsible for Vacancies
Reform Act

compliance relies on different sources to inform her of events that would
trigger the need to report. She said she is sometimes informed of
nominations by staff in the Office of the Secretary or by contacts within
the White House. She said a Human Resources Specialist who works with the
agency*s PAS staff first informs her of PAS vacancies. She said that these
people routinely call her about reportable events. Otherwise, timely
reporting would not be possible.

Agency Officials Should A third critical element is that the agency
prepare and maintain a list of the

Prepare First Assistant Lists first assistants for each of its PAS
positions. Under the Vacancies Reform

Act, the first assistant is automatically eligible to serve in a vacant
PAS position in an acting capacity. The first assistant is usually a
deputy who can fill in when a confirmed official vacates a PAS position.
However, the first assistant to a PAS official must be clearly established
for this provision to be properly implemented. When a position has been
designated as a first

assistant, this can ensure the timely securing of a qualified person as an
acting official to a PAS position and helps provide for the agency*s
continuity of operations. For example, at Transportation the key Vacancies
Reform Act compliance official said ensuring that only qualified persons
are appointed to serve as acting PAS officers is not a big concern because
the department has made a conscious effort to ensure that a first
assistant has been designated for each PAS position. The Department of the
Treasury codified its first assistant designation procedures in the Code
of Federal Regulations. In 31 C. F. R. 18.1, Treasury*s regulation states
that the deputy to the PAS officer, or the principle deputy when there is
more than one, shall be the first

assistant. Without a list of first assistants, it might not be clear who
is the first assistant to a PAS position. For example, at the Department
of Commerce, an official said he strongly believes that a first assistant
list is essential to filling vacancies expediently. This official said he
remembered Commerce was in a quandary when there were three deputies for a
particular vacant

PAS position, and the agency was unsure which should serve as the acting
official. He said that had there been a first assistant list, there would
have been no doubt or confusion because one of these individuals would
have been predesignated as the first assistant.

Following our discussion about written procedures, on July 9, 2002,
Commerce*s Office of General Counsel sent a policy memorandum to the
Assistant Secretary for Legislative and International Affairs, who had
overall oversight of Vacancies Reform Act compliance, for distribution to
other key compliance role players in the agency. The memorandum listed
procedures for complying with the act*s requirements, including
instructions on selecting persons to serve in acting PAS positions and the
related reporting requirement for this event. This guidance provides for
selecting the designated first assistant automatically and immediately for
a vacant position without the need for further action by the department.
This guidance lists all of Commerce*s 26 PAS positions and 20 accompanying
first assistant positions. It adds that in instances when there are no
first

assistants (6 positions), the President will need to designate acting
officers. The guidance also says that Commerce*s Office of White House
Liaison is to report to Congress and us the designation of an acting
officer immediately. Such guidance provides clear instructions on how
staff are to use the first

assistant register to designate acting officers and provides a mechanism
for immediate reporting of events.

Agencies Should Document A fourth critical element we identified is the
need for agencies to document

Implementation Procedures their Vacancies Reform Act procedures. By
documenting procedures,

agencies can ensure that when staff responsible for Vacancies Reform Act
functions leave or are reassigned, replacement staff will know their
responsibilities and have guidelines on how to meet their
responsibilities. When we began our work, none of the agencies we visited
had documented procedures but all agreed that doing so would be a good
idea, and agencies

had either completed or begun to do so when we finished our work. An
official at the Department of Health and Human Services (HHS) said the
person responsible for Vacancies Reform Act compliance under the previous
administration had produced detailed procedures that he followed to ensure
that his work complied with the Vacancies Reform Act. She said that this
person*s documented procedures were not a part of the agency*s formal
operating procedures. Instead they were this individual*s personal notes.
She also said that she was not aware of the specific steps outlined in the
procedures. The agency had been considerably more timely

in reporting events before the person left. After he left, the average
time to report events increased by more than 2 weeks. She said that she
had been briefed on compliance functions by an agency official but had not
been provided any written guidance and believed that she could have
learned required tasks more quickly had she had documented procedures to
follow. This case demonstrates how a period of learning might result in
delays in

reporting events and reinforces the importance of having formal documented
procedures.

As previously mentioned, Commerce officials issued a policy memorandum to
provide guidance to staff who have key roles in Vacancies Reform Act
compliance. This guidance identifies the specific Commerce components that
play roles in compliance and outlines for staff in these components how to
perform required tasks. This guidance makes officials aware of how
information is to be shared and transmitted to staff that are to act on
completing Vacancies Reform Act requirements.

The guidance also provides background information and discussion that
provides a sense of why tasks are to be performed. For instance, it states
*The act requires that notification is to be provided immediately upon the
occurrence of each of the triggering events.* It lists each triggering
event, including vacancies, selections of acting officials, and
nominations;

provides detailed information on which agency component is likely to be
first informed of a specific event; and asks that other components
cooperate by sharing and transmitting this information to the Commerce
unit responsible for reporting it. This guidance also provides helpful
information on complying with the act*s qualifications criteria for acting
officials and the time limit for service by acting officials. By
documenting its Vacancies Reform Act compliance procedures, Commerce has
provided a tool for use by new staff and has virtually eliminated the
possibility of confusion by components about their responsibilities in
this area.

Treasury officials have also made progress in developing comprehensive
documented procedures that specifically describe the agency*s procedures
for complying with each key requirement of the Vacancies Reform Act.
Treasury has segmented its procedures into two sections reporting and

tracking. Under its reporting section, its procedures begin with
background information that states the purpose and objectives of the
Vacancies Reform Act, which provides a perspective to staff on why certain
tasks are required. It goes on to list the specific Treasury offices and
their roles in notifying each other and reporting to Congress and us
information on PAS vacancies, selections of acting PAS officials, and
nominations.

Reporting section procedures also require that, before Vacancies Reform
Act reports are sent to Congress and us, the reports undergo a managerial
review for compliance with the Vacancies Reform Act*s requirements. The
procedures also include a requirement that the agency*s legal staff review

selections of acting PAS officials to ensure that they meet the
eligibility criteria contained in the Vacancies Reform Act.

In its tracking section, Treasury*s procedures contain steps that staff
should follow to ensure that acting PAS officials do not exceed the act*s
210- day time limit. The procedures specify that a designated office will
maintain a tickler system that will, essentially, establish dates when an
acting officer will reach the time limit, establish a provision for
adjusting the time limit when events occur that require adjustment, and
allow for adequate prenotification that a time limit threshold is nearing.

Agencies Should Assign the A final critical element provides for
continuity for Vacancies Reform Act

Act*s Implementation compliance functions by placing the responsibility
for them with career

Responsibilities to Senior employees. As currently practiced, newly
appointed political employees

Career Employees sometimes assume the responsibility for Vacancies Reform
Act compliance

at the change of administrations and periodically during an
administration. Because they are new to this function and not experienced
with its requirements, they may spend a substantial period learning what
must be done. Moreover, they have other responsibilities that constitute
their

primary focus. This can contribute, for example, to untimely reporting of
events as incoming staff learn their responsibilities and how to fulfill
them. Assigning senior career employees the responsibility for Vacancies
Reform

Act compliance could help ensure continuity because turnover is typically
much lower with career employees. This should in turn facilitate the
agencies* efforts to better achieve timely Vacancies Reform Act reporting
as well as provide greater assurance that agencies comply with
requirements for acting officials, which are especially important at the
change of administrations.

The need to assign career staff to certain tasks that require
institutional knowledge and continuity of effort was included in
governmentwide management reforms proposed to address long- standing
management problems in the federal government. 4 In September 2002 we
convened a panel of current and recent executive branch executives and
combined their ideas on alternative executive branch management methods
that might address the loss of institutional knowledge required to perform

certain agency tasks. We issued a report on the principle conclusions
reached by the panel, and the need to institutionalize accountability for
addressing management issues and leading transformational change was one
of the panel*s chief observations. The panel asserted that in the federal
government, the frequent turnover of the political leadership has often
made it difficult to obtain the sustained and inspired attention required
to make needed changes. This concern also applies to Vacancies Reform Act
compliance, and designating a senior career employee as responsible would
lessen concern.

The Department of Education has given Vacancies Reform Act compliance
responsibility to political employees responsible for other duties
associated with White House liaison offices, such as serving as the person
who interfaces with the White House. Reporting had not been timely. For
instance, the average time to report vacancies for Education was over 150
days because the vacancies that occurred at the change of administration
in January 2001 were not reported until June of that year.

Commerce officials offer an example of how an experienced career staff
person can effectively implement Vacancies Reform Act compliance duties
and reduce the chance of disruptions attributable to changes in
administrations. The Commerce career official who has key Vacancies Reform
Act compliance responsibilities reports to a political employee who has
overall responsibility for this function but who, because of her need to
focus on other matters, relies on the career employee to perform Vacancies
Reform Act compliance duties. The career employee said she has been at the
agency for an extended period and has been responsible for reporting
Vacancies Reform Act events since the act*s effective date in 1998.

4 See U. S. General Accounting Office, Highlights of a GAO Roundtable: The
Chief Operating Officer Concept: A Potential Strategy to Address Federal
Governance Challenges, GAO- 03- 192SP (Washington, D. C.: Oct. 4, 2002).

Conclusions Our past reviews of agencies* performance in implementing the
Vacancies Reform Act disclosed that agencies, generally, had not been
promptly meeting the act*s reporting requirements. We also found instances
in which agencies had violated the act*s time limit requirements. As a
result, we undertook this review to identify how agencies could better
ensure

compliance. We found five critical elements that we believe would help
agencies effectively implement the Vacancies Reform Act. We believe that
by incorporating these measures in their compliance programs, agencies*

overall performance should improve. We are suggesting that agencies 
identify the agency components and the specific roles they play in
fulfilling Vacancies Reform Act functions,  engage in frequent
communication among key staff so that information

that might be needed for prompt reporting is shared,  maintain up- to-
date first assistant lists to help ensure that qualified

individuals are selected as acting officials and that the selections are
reported expeditiously,  document their compliance procedures so that
newly assigned staff are

aware of required tasks and a measure of continuity of effort is achieved,
and

 assign senior career officials responsibility for Vacancies Reform Act
compliance to provide for more continuity of effort and sustain a level of
needed institutional knowledge.

Recommendation for We recommend that the Director, Office of Presidential
Personnel (OPP),

Executive Action encourage all agencies in the executive branch to ensure
that their

Vacancies Reform Act procedures include the critical elements identified
in this report.

Agency Comments and On June 20, 2003, the Associate Counsel to the
President commented on a

Our Evaluation draft of this report. He said that it would be preferable
for us to address

our recommendation to each federal agency that has PAS positions covered
by the Vacancies Reform Act because the Bush administration has determined
that each covered agency should assume responsibility for compliance with
the act. The Associate Counsel cited as the source for this

determination the March 20, 2001, memorandum from the Counsel to the
President to all executive departments and agencies, which among other
things, removed OPP from the Vacancies Reform Act reporting process.

We discussed the March 20, 2001 memorandum in this report and cited it in
our earlier work as a good step toward improving the timeliness of
reporting events covered by the Vacancies Reform Act. Our recommendation
is not intended to bring OPP directly into the compliance process for the
Vacancies Reform Act. Rather it is intended to use the office and its role
as a focus point for presidential appointments to emphasize the importance
of agencies* compliance. That is why we used the phrase *encourage all
agencies* in the recommendation rather than a phrase such as *require all
agencies.*

HHS said that it agreed with the report*s findings and that it believes
the five key elements will enable executive agencies to maintain accurate
information and provide timely notification of events covered by the
Vacancies Reform Act. HHS listed actions taken or under way to ensure that
its procedures encompass all five key elements.

The Director, Office of White House Liaison at the Department of Education
commented the Department concurred with four of the five elements but
disagreed with the element about assigning Vacancies Reform Act compliance
responsibilities to a senior career employee. Education said that it
believes that the White House liaison, who currently has overall
responsibility, is in the best position to meet these responsibilities in
a timely manner. The department also said that it believes that
implementing the fourth key element* having written compliance procedures*
would

meet the intent of the career employee element by providing for
continuity. As we pointed out, political appointees have other duties that
constitute their primary focus, and this is another reason it is important
to have career employees responsible for Vacancies Reform Act functions.
However, it is possible to have an effective compliance effort with a
political appointee

with overall responsibility and a career employee with day- to- day and
operational responsibility. As discussed above, this is how compliance is
handled at the Department of Commerce.

The Office of the Counsel to the President and the Departments of
Education, Transportation, and the Treasury provided technical comments,
which we incorporated in the report where appropriate. The Departments

of Commerce and Energy did not comment within the time provided.

We are sending copies of this report to the Counsel to the President; the
Director, Office of Presidential Personnel; and the heads of all executive
departments and agencies and their General Counsels. We are also sending
copies to other interested committees and parties and will make copies
available to others on request. In addition, the report will be available
at no charge on our Web site at http:// www. gao. gov.

If you have any questions about this report, please call me at (202) 512-
6806. Key contributors to this report were Tom Dowdal, Jeff Dawson, and
Bruce Goddard.

Sincerely yours, Victor S. Rezendes Managing Director, Strategic Issues

(450097)

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a

GAO United States General Accounting Office

DRAFT REPORT: GA- 03- 806 Vacancies Reform Act Compliance The six
departments GAO reviewed had Vacancies Reform Act

compliance systems that varied. Regardless of how the agencies had
assigned responsibilities, GAO identified five key elements essential to
Vacancies Reform Act compliance. One critical element is that agencies
identify the specific components or

branches that will be responsible for Vacancies Reform Act requirements.
Agencies should also specify the functions that these key units perform
and how they interact with other key components to achieve the overall
Vacancies Reform Act compliance objective.

A second critical element is that staff in the various components that
play a role in Vacancies Reform Act compliance must frequently communicate
with each other. There may be several agency components involved in the
compliance process and one component may have critical information, such
as the occurrence of a vacancy, that the component responsible for
reporting this event to Congress needs to know. Frequent communication
helps ensure that information is shared and acted on in a timely manner.

A third critical element is that the agency maintains an up- to- date list
of the first assistants for each of its PAS positions. When a vacancy
occurs the Vacancies Reform Act provides that the first assistant will
serve as the acting official in the absence of a designation by the
President. Having an up- to- date list helps ensure timely placement,
continuity of operations, and compliance with qualifications criteria for
acting PAS officials prescribed by the Vacancies Reform Act.

A fourth critical element is that agencies document their Vacancies Reform
Act procedures. Documenting compliance procedures provides agencies a
means of ensuring that new staff assigned to compliance tasks will have
guidance on how to perform these tasks. This will also help ensure a
consistent application of the process, reduce the learning period
required, and provide for a better continuity of effort.

Finally, agencies should assign Vacancies Reform Act responsibilities to
career employees. This would also help to provide continuity to the
agencies* compliance activities, because, typically, political employees,
who may be assigned this function, would not be very familiar with the
act*s requirements when they report for duty. This can lead to delays or
errors in Vacancies Reform Act compliance. Agency officials cited a number
of examples where it took replacement staff a while to get up to

speed which resulted in long delays in reporting vacancy events. The
Federal Vacancies Reform Act of 1998 sets requirements for

reporting to Congress and the Comptroller General actions related to
Presidential Appointment with Senate Confirmation (PAS) positions as well
as the qualifications for and

term limits on acting PAS officers. GAO had reviewed agencies* performance
in implementing the Vacancies Reform Act and found substantial problems
with their

reporting timeliness and compliance with term limits for acting officials.
In this current effort, GAO looked at agencies* procedures to identify
approaches that could be applied across the government to help assure
effective implementation of the act. GAO recommends that the Office of
Presidential Personnel encourage federal agencies to implement the five
key elements

for Vacancies Reform Act compliance that GAO identified.

The Office of Counsel to the President commented on the report and said he
would prefer that GAO make the recommendation to all

agencies with PAS positions covered by the Vacancies Reform Act rather
than to the Office of Presidential Personnel.

FEDERAL VACANCIES REFORM ACT

Key Elements for Agency Procedures for Complying with the Act

www. gao. gov/ cgi- bin/ getrpt? GAO- 03- 806. To view the full report,
including the scope and methodology, click on the link above. For more
information, contact Victor Rezendes at (202) 512- 6806 or rezendesv@ gao.
gov.

Highlights of GAO- 03- 806, a report to the Chairman, Committee on
Governmental Affairs, U. S. Senate

July 2003

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