Implementation of the Federal Vacancies Reform Act of 1998
(Correspondence, 09/29/2000, GAO/GGD-00-210R).

Pursuant to a congressional request, GAO assessed the Vacancies Reform
Act's implementation, focusing on whether agencies were: (1) notifying
Congress and GAO of all reportable vacancies and temporary appointments;
(2) submitting timely notifications of vacancies, appointments of acting
officials, and nominations to fill vacant positions; and (3) adhering to
the 210 day time limit for temporary service.

GAO noted that: (1) between November 21, 1998, and June 30, 2000, the 11
agencies together, on the basis of information they provided for this
review, incurred 60 presidential appointment and Senate confirmation
vacancies and filled those vacancies with 58 acting officials; (2) GAO
determined that a majority of those vacancies and acting officials had
been reported to GAO; (3) however, as of July 13, 2000, GAO had not been
notified of 8 vacancies and 12 acting officials; (4) together, these 20
instances of nonreporting represented about 17 percent of the 118
reportable vacancies and acting officials; (5) GAO has since received 12
of the 20 notices, as of September 25, 2000; (6) the 11 agencies were
more likely to notify GAO of a vacancy and less likely to notify GAO of
an acting official; (7) the reporting records of the 11 agencies varied,
ranging from 5 agencies reporting all vacancies and acting officials to
GAO, to 1 agency reporting less than half as of July 13, 2000; (8) many
of the vacancy and acting official notices that GAO received between
November 21, 1998, and July 13, 2000, took 4 or more weeks to arrive,
counting from the date the vacancy or acting service began; (9) this
length of time to arrive at GAO was the case for 56 percent of the
vacancy notifications and 47 percent of the acting official
notifications; (10) the Federal Vacancies Reform Act of 1998 requires
agency heads notify Congress and GAO immediately upon the occurrence of
the triggering event, although "immediately" is not defined in the
Vacancies Reform Act; (11) since July 1999, agencies have been
instructed by a White House memorandum to send notifications to the
White House Office of Presidential Personnel, which, after recording
information, is to route them to the Office of Management and Budget,
which is simultaneously transmit them to Congress and GAO; (12) the
length of time that notices have taken to reach GAO has improved since
the first several months after the Vacancies Reform Act took effect;
(13) the median number of days dropped from 44 days to 27 days for
vacancy notices and from 42 days to 21 days for acting official notices
between the first approximately 7-month period and the most 7-month
period under the Vacancies Reform Act; and (14) GAO found that three
acting officials--two Acting Inspectors General and one Acting Chief
Financial Officer--had served longer in these positions than the
Vacancies Reform Act permits.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  GGD-00-210R
     TITLE:  Implementation of the Federal Vacancies Reform Act of 1998
      DATE:  09/29/2000
   SUBJECT:  Presidential appointments
	     Congressional/executive relations
	     Congressional oversight
	     Reporting requirements
	     Temporary promotions
	     Noncompliance
IDENTIFIER:  GAO Executive Vacancies Act Tracking System

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GAO/GGD-00-210R

United States General Accounting Office General Government Division
Washington, D. C. 20548

Page 1 GAO/ GGD- 00- 210R Vacancies Reform Act

B- 286347 September 29, 2000 The Honorable Fred Thompson Chairman, Committee
on Governmental Affairs United States Senate

Subject: Implementation of the Federal Vacancies Reform Act of 1998 Dear Mr.
Chairman: The Federal Vacancies Reform Act of 1998 1 (Vacancies Reform Act),
which took effect on November 21, 1998, provides new requirements for the
temporary filling of certain vacant executive agency positions that require
presidential appointment and Senate confirmation (PAS positions). The
Vacancies Reform Act is intended to create a clear process and a time limit
for the temporary filling of those PAS positions. It requires agencies to
inform Congress and GAO whenever (1) a PAS position becomes vacant, (2) a
vacant position is filled on a temporary basis, (3) a nomination is made to
the Senate to fill a vacancy, and (4) a nomination for the position is
rejected, withdrawn, or returned. You asked us to assess the Vacancies
Reform Act's implementation. More specifically, you asked us to determine
whether agencies were (1) notifying Congress and GAO of all reportable
vacancies and temporary appointments; (2) submitting timely notifications of
vacancies, appointments of acting officials, and nominations to fill vacant
positions; and (3) adhering to the 210 day time limit for temporary service.
In addition, in conjunction with the second objective, you asked us to
describe the procedures followed for reporting vacancies, temporary
appointments, and nominations to Congress and GAO.

This letter addresses those areas by reviewing information agencies provided
for this review and by reviewing data taken from notifications that agencies
had previously sent to GAO as required by the Vacancies Reform Act. To
determine whether all vacancies and temporary appointments were reported, we
reviewed the vacancy and notification histories of 246 PAS positions
provided by the White House Office of Presidential Personnel at 11 agencies-
the Departments of Agriculture, Commerce, Defense (DOD), Education, Health
and Human Services (HHS), the Interior, Justice, Transportation (DOT), the
Treasury, and Veterans

1 5 U. S. C. 3341- 3349d

B- 286347 Page 2 GAO/ GGD- 00- 210R Vacancies Reform Act

Affairs (VA) and the Environmental Protection Agency (EPA). To determine
whether notifications were timely, we analyzed data that GAO had recorded
for notifications that it had received. This analysis was not limited to the
11 agencies but covered all agencies that had submitted notifications within
the scope of this report. For the first and second objectives, we used
reporting to GAO as a surrogate measure for reporting to Congress. To
determine whether the 210- day limit was exceeded, we reviewed data agencies
had provided to GAO under the Vacancies Reform Act's notification
requirement and, for the 11 agencies, cross checked that data with
information obtained from the 11 agencies specifically for this review. As
agreed, we will later address your other concerns regarding the Vacancies
Reform Act's implementation as well as provide additional information on how
completely other agencies have been reporting vacancies and temporary
appointments to Congress and GAO.

Results in Brief Between November 21, 1998, and June 30, 2000, the 11
agencies together, on the basis of information they provided for this
review, incurred 60 PAS vacancies and filled those vacancies with 58 acting
officials. We determined that a majority of those vacancies and acting
officials had been reported to GAO. However, as of July 13, 2000, GAO had
not been notified of 8 vacancies and 12 acting officials. Together, these 20
instances of nonreporting represented about 17 percent of the 118 reportable
vacancies and acting officials. GAO has since received 12 of the 20 notices,
as of September 25, 2000.

The 11 agencies were more likely to notify GAO of a vacancy and less likely
to notify GAO of an acting official. The reporting records of the 11
agencies varied, ranging from 5 agencies reporting all vacancies and acting
officials to GAO, to 1 agency reporting less than half as of July 13, 2000.

Many of the vacancy and acting official notices that GAO received between
November 21, 1998, and July 13, 2000, took 4 or more weeks to arrive,
counting from the date the vacancy or acting service began. This length of
time to arrive at GAO was the case for 56 percent of the vacancy
notifications and 47 percent of the acting official notifications. The
Vacancies Reform Act requires that agency heads notify Congress and GAO
immediately upon the occurrence of the triggering event, although
“immediately” is not defined in the Vacancies Reform Act. Since
about July 1999, agencies have been instructed by a White House memorandum
to send notifications to the White House Office of Presidential Personnel,
which, after recording information, is to route them to the Office of
Management and Budget (OMB), which is to simultaneously transmit them to
Congress and GAO.

The length of time that notices have taken to reach GAO has improved since
the first several months after the Vacancies Reform Act took effect. The
median number of days dropped from 44 days to 27 days for vacancy notices
and from 42 days to 21 days for acting official notices between the first
approximately 7- month period and the most recent 7- month period under the
Vacancies Reform Act.

We found that three acting officials- two Acting Inspectors General and one
Acting Chief Financial Officer- had served longer in these positions than
the Vacancies Reform Act permits. One official served for 10 days, and the
other two for about 2 months past the 210-

B- 286347 Page 3 GAO/ GGD- 00- 210R Vacancies Reform Act

day limit. In general, the Vacancies Reform Act invalidates the actions of
acting officials during the time they exceed the 210- day time limitation,
except for certain PAS positions including Inspectors General and Chief
Financial Officers. Therefore, although the two Acting Inspectors General
and the Acting Chief Financial Officer exceeded the 210- day limitation, the
Vacancies Reform Act does not invalidate their actions. The subsection of
the Vacancies Reform Act that exempts Inspectors General and Chief Financial
Officers from the provision that invalidates actions by an acting official
who exceeds the 210- day limit is in the same section as the provision that
allows for the extension of the 210- day period in certain circumstances.
This may have contributed to confusion by some agencies about whether acting
Inspectors General and Chief Financial Officers were covered by the 210- day
time limit. On September 15, 2000, we wrote to the relevant congressional
committees, the President, and the Office of Personnel Management (OPM)
informing them of the time- limit violations.

Background Under the Federal Vacancies Reform Act of 1998, a vacancy occurs
if a presidential appointee covered by the Vacancies Reform Act dies,
resigns, or is otherwise unable to perform the functions and duties of the
office. For PAS vacancies covered by the Vacancies Reform Act, the Act among
other things,

ï¿½ specifies who may serve as an acting officer;

ï¿½ imposes a time limit on how long vacancies can be filled by acting
officers; and

ï¿½ requires agencies to immediately report to the Senate, the House of
Representatives, and the Comptroller General of the United States any
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 the date of any rejection, withdrawal, or return of a nomination.

The Vacancies Reform Act also requires the Comptroller General of the United
States to inform specified congressional committees, the President, and OPM
if an acting officer is serving longer than 210 days, a period which may be
extended through various provisions of the Vacancies Reform Act.

Generally, the Vacancies Reform Act applies to any office within an
executive agency to which appointment is required to be made by the
President, by and with the advice and consent of the Senate. The Vacancies
Reform Act, however, excludes from its coverage certain officers. It does
not apply, for example, to any PAS position on a multimember board or
commission that governs an independent establishment or government
corporation. The Vacancies Reform Act also recognizes that a number of PAS
positions are covered by other statutes that specifically address how the
office is to be filled on a temporary basis.

The Federal Vacancies Reform Act of 1998 replaced an earlier Vacancies Act,
which the Justice Department and several other executive agencies had
maintained was not the exclusive authority for the temporary filling of
vacant PAS positions. These agencies said their enabling statutes, which
gave their agency heads general authority to assign functions and delegate
authority within the agency, could override the Vacancies Act. In other
words,

B- 286347 Page 4 GAO/ GGD- 00- 210R Vacancies Reform Act

the heads of these agencies could assign individuals to temporarily fill
vacant PAS positions without informing Congress and for longer than the 120
days established by the Vacancies Act. In a long line of cases concerning
officials who were serving in acting capacities without Senate approval, GAO
determined that the Vacancies Act was the exclusive authority for the
temporary filling of vacant positions. The question of whether agencies
needed to follow the Vacancies Act, according to Chairman Thompson in a 1998
hearing, went to the heart of one of the Senate's most important powers, the
duty to advise and consent on presidential nominations.

As previously mentioned, the Vacancies Reform Act assigned GAO certain
responsibilities. To carry out those responsibilities, GAO together with the
executive branch developed a form, “Submission Under the Federal
Vacancies Reform Act,” which the White House has instructed agencies
to use since July 1999 to notify Congress and GAO of vacancies, acting
officials, and nominations. GAO also has developed a computerized
“Executive Vacancies Act Tracking System” to collect and analyze
submitted data. Information from this system is accessible to agencies and
the public through GAO's web page (http:// www. gao. gov). In June 1999,
concerned with having received only 23 vacancy reports, GAO sent a letter to
the heads of executive departments and agencies describing the requirements
that the Vacancies Reform Act imposes on agencies and providing additional
guidance for reporting information to GAO.

Agencies Reported Many but Not All Vacancies and Temporary Appointments

As required by the Vacancies Reform Act, agencies must notify Congress and
GAO whenever a vacancy occurs in a position covered by the Vacancies Reform
Act. They also must provide the name of any person carrying out the duties
of the vacant position in an acting capacity as well as certain other
specific items of information. The 11 agencies we reviewed, as a group,
notified GAO about most but not every vacancy and acting official. The 11
agencies more often failed to report that someone was serving in an acting
capacity than they failed to report a vacancy.

In response to our request, the 11 agencies provided information on 246 PAS
positions identified by the White House Office of Presidential Personnel as
subject to the Vacancies Reform Act. For three out of every four positions,
the agencies said there had been no vacancies during the period we covered-
November 21, 1998, through June 30, 2000. However, the agencies reported
that vacancies had occurred in 60 positions. In connection with those
vacancies, 58 officials had served in acting capacities.

Although GAO should have been previously notified of all 60 vacancies, it
was notified of 52 vacancies, but not the other 8, as of July 13, 2000. As
table 1 shows, the Department of Justice failed to notify GAO about six
vacancies, and DOD and the Department of Commerce each failed to notify GAO
about one vacancy. The eight other agencies had previously notified GAO of
all of their vacancies.

B- 286347 Page 5 GAO/ GGD- 00- 210R Vacancies Reform Act

Although GAO should have been previously notified of all 58 acting
officials, it was notified about 46 officials, but not the other 12, as of
July 13, 2000. As table 1 shows, 6 of the 11 agencies had failed to notify
GAO about one or more acting officials. The Department of Justice had failed
to notify GAO about five acting officials and the Department of the Treasury
about three acting officials. Each of the other four agencies had not
notified GAO of one acting official. The Treasury Department had notified
GAO of all 13 of its vacancies but only 6 of its 9 acting officials.

Vacancies Acting officials Agency Total

number Number

reported to GAO

Number not reported

to GAO Total number

Number reported

to GAO Number

not reported to GAO

Agriculture 1 1 0 2 2 0 Commerce 8 7 1 7 6 1 DOD 5 4 1 5 4 1 Education 5 5 0
5 4 1 HHS 2 2 0 2 2 0 Interior 5 5 0 6 6 0 Justice 10 4 6 10 5 5 DOT 6 6 0 6
6 0 Treasury 13 13 0 9 6 3 VA 2 2 0 3 3 0 EPA 3 3 0 3 2 1

Totals 60 52 8 58 46 12

Source: Information that the agencies provided to GAO for this review and in
response to the Vacancies Reform Act.

Several agencies- Agriculture, HHS, Interior, DOT, and VA- notified GAO of
all of their vacancies and acting officials. Justice notified GAO of fewer
than half of its vacancies (4 of 10) and only half of its acting officials
(5 of 10).

Because the Vacancies Reform Act was signed into law on October 21, 1998,
and generally became effective 30 days later, it is possible that some
affected agencies or offices within agencies were not aware of their
responsibilities under the Vacancies Reform Act shortly after it passed.
However, the 20 instances of nonreporting cannot all be attributed to the
newness of the Vacancies Reform Act. Thirteen of the 20 instances occurred
in 2000.

For each vacancy and acting official that had not been previously reported
to GAO by July 13, 2000, we contacted the responsible agency to verify that
notification should have occurred. The agencies generally acknowledged that
some notifications were not sent and others were only sent recently.
However, in the case of an acting official at DOD and the case of a vacancy
and an acting official at Commerce, officials said that a report had already
been submitted but provided us with another copy. However, GAO has no record
of receiving the original reports. Several of the events that would trigger
reporting occurred in 1999 or early 2000 but were reported after the July 13
cutoff date that we are using in this letter. We noted that, in 12 of the 20
cases, we received notification from the agency after July 13, 2000. As
discussed in

Table 1: Number of Vacancies and Acting Officials at 11 Agencies, From Nov.
21, 1998, Through June 30, 2000, and the Number Reported to GAO as of July
13, 2000

B- 286347 Page 6 GAO/ GGD- 00- 210R Vacancies Reform Act

the following section, Vacancies Reform Act reports frequently take
considerable time to reach GAO. Enclosure I lists the positions for which
vacancies or acting officials were not previously reported to GAO.

Notices Frequently Took Longer Than 4 Weeks to Reach GAO The Vacancies
Reform Act requires that the heads of agencies notify Congress and GAO
immediately of certain events relating to a PAS vacancy, including the date
on which the vacancy occurs and the assignment of an acting official to the
vacancy. While the Vacancies Reform Act does not define
“immediately,” we found that notifications that GAO received
over the November 1998 to July 2000 period frequently arrived more than 1
month after the event had occurred.

The administration's procedures for notifying Congress and GAO have evolved
since November 1998. Initially, some agencies sent notifications to Congress
and GAO directly while others sent notifications through the White House
Office of Presidential Personnel. Since about July 1999, agencies have been
instructed, by a memorandum from the Assistant to the President and Director
of Presidential Personnel, to submit all notifications to the White House
Office of Presidential Personnel. At that time, GAO was informed of the
procedures that the White House and the executive branch would use in
forwarding notifications. The agencies, according to White House officials,
fax the notifications to the Office of Presidential Personnel to expedite
notification. The Office, according to officials there, places the
information on a computer database and then sends the faxed notifications to
OMB, routinely doing so on a weekly basis and on occasion more frequently.
OMB in turn, according to White House officials, sends copies of the
notifications received from the Office of Presidential Personnel, a few days
after receiving them, concurrently to Congress and GAO. Because officials of
the White House Office of Presidential Personnel said that notifications are
sent concurrently to Congress and GAO, we view the length of time taken to
notify GAO as reflecting the length of time taken to notify Congress.

Between November 21, 1998, and July 13, 2000, GAO received notices from 18
agencies of 75 PAS- position vacancies subject to the Vacancies Reform Act's
reporting requirements and, related to those vacancies, 62 acting officials.
2 The 75 vacancies and the acting service of the 62 officials all began on
or after November 21, 1998. These numbers do not include the 8 vacancies and
12 acting officials we identified through this review as not having been
previously reported to GAO. As table 2 shows, the administration frequently
took more than 4 weeks to notify GAO about the existence of a vacancy or the
assignment of an acting official to fill a vacant position. The number of
weeks is from the date that the vacancy or acting service began to the date
that GAO received the related notification.

2 As the Scope and Methodology section of this report explains, we screened
out certain notifications before arriving at these numbers.

B- 286347 Page 7 GAO/ GGD- 00- 210R Vacancies Reform Act

About a vacancy About assignment of an acting official Number of weeks to
notify GAO Number of

notifications Percent of vacancy notifications Number of

notifications Percent of acting official notifications

1 week or less 10 13% 12 19% Between 1- 2 weeks 11 15% 10 16% Between 2- 4
weeks 12 16% 11 18% More than 4 weeks 42 56% 29 47%

Source: GAO's Executive Vacancies Tracking System.

However, as table 3 shows, the length of time the administration took to
notify GAO became considerably shorter after the first approximately 7
months of experience with the Vacancies Reform Act. Over the most recent 7-
month period, the median time was 3 to 4 weeks. 3

Number of days to notify GAO about Vacancies Acting officials

Time interval

Number of notifications

Median number of

days Average

number of days

Number of notifications

Median number of

Days Average

number of days

11/ 21/ 98 – 06/ 30/ 99 34 44 72 23 42 61 07/ 01/ 99 – 12/ 31/
99 26 27 42 22 21 53 01/ 01/ 00 – 07/ 13/ 00 15 27 39 17 21 35

Source: GAO's Executive Vacancies Tracking System.

3 The median and mean (or average) are frequently used measures of the
central tendency of a set of numbers. The median is the number or value
below which and above which half the numbers fall. The mean is the
arithmetic average of all values (add up all the values and divide by the
number of values added). The mean is most influenced by extreme values while
the median is more stable than the mean because extreme scores do not affect
it.

Table 2: Number of Weeks the Administration Took to Notify GAO, for
Notifications That GAO Received From Nov. 21, 1998, to July 13, 2000

Table 3: Median and Average Numbers of Days the Administration Took to
Notify GAO During Three Intervals Since Nov. 21, 1998, for Notifications GAO
Received From Nov. 21, 1998, to July 13, 2000

B- 286347 Page 8 GAO/ GGD- 00- 210R Vacancies Reform Act

Over the November 1998 to July 2000 period, the administration also notified
GAO of 40 nominations to the Senate related to the 75 vacancies. 4 For the
40 notifications, GAO received

ï¿½ four (10 percent) in 1 week or less,

ï¿½ nine (23 percent) between 1 to 2 weeks,

ï¿½ eight (20 percent) between 2 and 4 weeks, and

ï¿½ nineteen (48 percent) more than 4 weeks after the date of the nomination.
The median amount of time the 40 notifications took to reach GAO dropped
from 53 days- during the first several months after the Vacancies Reform Act
took effect (Nov. 21, 1998, to June 30, 1999)- to 13 days (from Jan. 1,
2000, to July 13, 2000).

There was a sizeable range in time on how quickly the notices of individual
agencies reached GAO. For example, the 11 DOD notifications took a median of
6 to 16 days to reach GAO from the dates that vacancies occurred, officials
assumed positions in acting capacities, and nominations were submitted to
Congress. In comparison, the 13 notifications that the administration
submitted from the Agency for International Development took a median of 91
to 105 days to reach GAO. Enclosure II provides agency- by- agency
information on the timeliness of notifications.

Regardless of the length of time it has taken notifications to reach the
Senate, most- 250 of approximately 284- notifications have not been
distributed to the appropriate committees of jurisdiction. Vacancies Reform
Act notices are not usually submitted bearing the original signatures of the
respective agency heads. As previously noted, OMB sends to Congress and GAO
copies of notices that agencies fax to the Office of Presidential Personnel.
Just as for other executive branch documents that the Senate receives, the
Senate Parliamentarian requires the transmittal letter or document to bear
the original signature of an agency official in order for it to be referred
to the appropriate committee. We found the same situation exists with the
House of Representatives. According to the House Parliamentarian's Office,
after consultation with the Senate Parliamentarian, the House Office is
holding 203 notifications and is not referring them to appropriate
committees because they do not bear original signatures.

Acting Officials Have Served Beyond the 210- Day Limit In general, the
Vacancies Reform Act permits vacancies to be filled for up to 210 days by
acting officials, with the 210 days beginning on the date the vacancy
occurred. 5 At the end of

4 As the Scope and Methodology section of this report explains, we screened
out certain notifications before arriving at these numbers. 5 5 U. S. C.
3346( a)( 1)

B- 286347 Page 9 GAO/ GGD- 00- 210R Vacancies Reform Act

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 when a nomination is pending before Congress. 6 The
Vacancies Reform Act directs GAO to determine whether acting officers serve
beyond the time limit and to report any violations to certain congressional
committees, the President, and OPM. 7

GAO depends on data it receives from the executive branch to determine
whether acting officials serve more than the 210 days that the Vacancies
Reform Act permits. On the basis of information in the notifications that
GAO received through July 13, 2000, and from discussions GAO had with
agencies and the White House Office of Presidential Personnel, GAO found one
violation of the 210- day limit. Subsequent information that agencies
provided to us for this review showed two additional violations of the time
limit. The positions involved two Acting Inspectors General, one at DOD and
the other at the Department of Justice, and one Acting Chief Financial
Officer, which was at EPA.

The Vacancies Reform Act 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. 8 This would include actions taken by an acting
officer after the 210- day limit has been reached. 9 However, the Vacancies
Reform Act exempts Inspectors General and Chief Financial Officers from the
latter provision concerning the force and effect of actions past the 210-
day time limit. 10 Thus the provision generally invalidating the actions of
acting officials who exceed the 210- day time limit does not invalidate the
actions of acting Inspectors General and Chief Financial Officers who
improperly exceed the 210- day limit.

As a general matter, the Vacancies Reform Act provides that if the last day
of any 210- day period is a day on which the Senate is not in session, the
second day that the Senate is next in session and receiving nominations
shall be deemed to be the last day allowed for an official to perform in an
acting capacity. 11 However, this provision extending the period in which a
person may serve as an acting officer does not apply to Inspectors General
and Chief Financial Officers. 12

6 5 U. S. C. 3346 (a)( 2) 7 5 U. S. C. 3349( b) 8 5 U. S. C. 3348( d)( 1) 9
5 U. S. C. 3346( a)( 1) and 3348( d)( 1) 10 5 U. S. C. 3348( e)( 3) and (4)
11 5 U. S. C. 3348( c) 12 5 U. S. C. 3348( e)( 3) and (4)

B- 286347 Page 10 GAO/ GGD- 00- 210R Vacancies Reform Act

The subsection of the Vacancies Reform Act 13 which exempts Inspectors
General and Chief Financial Officers from the provision 14 that invalidates
actions by an acting official who exceeds the 210- day limit is in the same
section 15 as the provision 16 which allows for the extension of the 210-
day period in certain circumstances. This may have contributed to confusion
by some agencies as to whether acting Inspectors General and Chief Financial
Officers were covered by the 210- day time limit. However, it is clear in
our view that the 210day limit applies to acting Inspectors General and
Chief Financial Officers and may not be extended under the exceptions
allowed other acting officials when the last day of the period is a day that
the Senate is not in session. Accordingly, such officials should not be
permitted to continue to serve in their acting positions after the 210- day
time limit has been reached. As stated above, any actions that acting
Inspectors General and Chief Financial Officers take in an acting capacity
past the 210- day limit would not be subject to the invalidation provision.

Acting Inspector General of DOD The Deputy Inspector General of DOD became
the Acting Inspector General on May 1, 1999, the day after the Inspector
General resigned from her position on April 30. GAO's database shows that
DOD reported that it retained the Acting Inspector General in that position
until January 25, 2000, or for 270 days. Subsequently, in the course of this
review, DOD reported to us that the Deputy Inspector General was Acting
Inspector General until November 26, 1999, or for 210 days.

Initially DOD's position was that since the 210- day period expired on
November 26, 1999, a day the Senate was not in session, the Acting Inspector
General could serve until January 25, 2000, which was the second day after
the Senate came back into session. As noted above, as a general matter, the
Vacancies Reform Act provides that if the last day of any 210- day period is
a day on which the Senate is not in session, the second day the Senate is
next in session and receiving nominations shall be deemed to be the last day
allowed for an official to perform in an acting capacity. 17 DOD originally
viewed this provision as extending the time period for an acting Inspector
General to serve and advised the Deputy Inspector General that his tenure as
Acting Inspector General would end on January 25, 2000. DOD reported to us
that the Acting Inspector General left his acting position on January 25.

Subsequently, DOD concluded, after consulting with the Department of
Justice, that the Deputy Inspector General could not serve past November 26,
1999, because Inspectors General were specifically exempted from the
application of the section that extends the 210day limit if the last day of
the 210- day period is a day when the Senate was not in session. 18

13 5 U. S. C. 3348( e)( 3) and (4) 14 5 U. S. C. 3348( d) 15 5 U. S. C.
3348( d) 16 5 U. S. C. 3348 17 5 U. S. C. 3348( c) 18 5 U. S. C. 3348( e)(
3)

B- 286347 Page 11 GAO/ GGD- 00- 210R Vacancies Reform Act

Thus DOD, recognizing that its Acting Inspector General should not have
served past November 26, 1999, apparently believed that it should report the
date the Acting Inspector General should have stepped down from the acting
position (Nov. 26, 1999), rather than the date that he actually stepped down
(Jan. 25, 2000).

We agree that DOD's Acting Inspector General should not have served past
November 26, 1999. Accordingly, the Acting DOD Inspector General's service
in that capacity after November 26 exceeded the 210- day time limit in
violation of the Vacancies Reform Act.

Acting Inspector General of the Department of Justice On July 14, 2000, 11
months after the position had become vacant, we received notification from
the Department of Justice that the position of Inspector General had become
vacant on August 15, 1999. On July 14, 2000, the Department of Justice also
notified us that an individual had started serving as Acting Inspector
General on August 16, 1999, and was continuing to serve in that position.
Further, on July 14, 2000, the Department of Justice informed us that a
nomination for the Inspector General's position was submitted to the Senate
on May 15, 2000.

Under the Vacancies Reform Act, the last day of the 210- day period that the
Department of Justice's Acting Inspector General could serve was March 11,
2000. Therefore from March 12, 2000, until May 14, 2000, a period of
approximately 2 months, the Department of Justice's Acting Inspector
General's service in that capacity was in violation of the 210- day limit
imposed by the Vacancies Reform Act.

However, under the Vacancies Reform Act, a person may serve as an acting
officer, once a first or second nomination for the office is submitted to
the Senate, from the date of such nomination for the period that the
nomination is pending in the Senate. 19 On May 15, 2000, once a nomination
for the Inspector General at the Department of Justice was submitted, the
Acting Inspector General could once again properly serve in an acting
capacity under the provisions of the Vacancies Reform Act.

Acting Chief Financial Officer of EPA On March 30, 2000, we received
notification that the position of Chief Financial Officer at EPA had become
vacant on January 15, 2000, and that on January 16, 2000, an Acting Chief
Financial Officer had begun service. Since the vacancy occurred during an
adjournment of the Congress sine die, the 210- day period began on the date
that the Senate first reconvened, 20 January 24, 2000. (Neither Inspectors
General nor Chief Financial Officers are exempted from this particular
provision of the Vacancies Reform Act extending the 210 day time limit.)
Thus the 210- day period for the Acting Chief Financial Officer of EPA
expired on August 20, 2000.

19 5 U. S. C. 3346( a)( 2) 20 5 U. S. C. 3346( c)

B- 286347 Page 12 GAO/ GGD- 00- 210R Vacancies Reform Act

Although for the purposes of this letter, we generally used the November 21,
1998, to July 13, 2000, time period for measuring compliance with the
Vacancies Reform Act, EPA recently informed us that the Acting Chief
Financial Officer was not removed from his position until August 30, 2000.
Thus we are also reporting that EPA's Acting Chief Financial Officer's
service in that capacity exceeded the 210- day time limit by 10 days, in
violation of the Vacancies Reform Act.

We have informed the relevant congressional committees, the President, and
OPM about the three situations in which the statutory 210- day limit was
exceeded. However, as stated above, since Inspectors General and Chief
Financial Officers are specifically exempted from the provision invalidating
nondelegable actions that are not taken in accordance with the provisions of
the Vacancies Reform Act, we do not believe that any actions these officers
may have taken after the 210 day time limit had been exceeded would be
invalidated by the act.

Agency Comments We requested comments on a draft of this letter from the
Assistant to the President and Director, Office of Presidential Personnel or
his designee. At a September 22, 2000, meeting, an Associate Counsel to the
President and others provided oral comments on the draft. They generally
agreed with the facts presented in the draft. They suggested certain
clarifications and offered certain technical comments, which we incorporated
in this letter as appropriate.

While the draft was with the White House for comment, we performed
additional checks on the contents of our tables and found two additional
instances where notifications had been provided to GAO prior to July 13,
2000. We have made appropriate adjustments to this letter to recognize these
notifications.

Scope and Methodology To determine whether Congress and GAO had been
notified of all vacant PAS positions since November 21, 1998, and any acting
officials serving in those positions, we obtained, from the White House
Office of Presidential Personnel, a list of PAS positions that was the best
available approximation of those subject to the Vacancies Reform Act. In
transmitting the list of 484 positions, the Associate Counsel to the
President said the list was a working list based primarily on Vacancies
Reform Act submissions prepared by agency officials. It was not intended to
represent, he said, a final legal determination on the coverage of the
Vacancies Reform Act.

The positions were identified by agency, and we sent the names of the 484
positions to the 48 respective agencies together with a form we developed to
collect information on each position. We asked the agencies to complete a
form for (1) each position and (2) any PAS position they considered subject
to the Vacancies Reform Act that was not on the list we sent. The form
requested the name of any individual who filled a vacant position on an
acting (temporary) basis and the dates of service.

B- 286347 Page 13 GAO/ GGD- 00- 210R Vacancies Reform Act

For purposes of this report, we compared the vacancy and acting service
information submitted by 11 agencies with the notifications GAO had received
from them, as required by the Vacancies Reform Act. In making this
comparison, we compared the information we received to information on GAO's
Executive Vacancies Act Tracking System, which records the information that
agencies submit to GAO under the Vacancies Reform Act. The tracking system
information we used was through July 13, 2000, which was the latest
information available when we began making various analyses for this letter.
When information we received was not on the tracking system, we rechecked
the source information for our tracking data and contacted the responsible
agency to verify the information.

The amount of time necessary to make comparisons and to follow up with
agencies if a difference was discovered made it impractical at this time to
report on every agency that submitted responses through September 7, 2000.
We therefore restricted our analysis to 11 agencies- the Departments of
Agriculture, Commerce, DOD, Education, HHS, the Interior, Justice, DOT, the
Treasury, and VA and EPA. We selected these agencies because they accounted
for a large percentage- about 51 percent- of the positions on the Office of
Presidential Personnel's list of PAS positions. However, as agreed with your
representatives, we will continue to compare the remaining responses and
will report at a later date on all responses.

To determine the timeliness of agency reporting to GAO, we used data from
GAO's Executive Vacancies Act Tracking System. When GAO receives
notifications from agencies, it stamps the notifying documents with a
“form received date” and records that date on the tracking
system. GAO also records from the notification documents the dates that
vacancies and acting services began and the dates that nominations were
submitted to the Senate. Using data from the tracking system, we counted the
days between the starting or submission dates and the form- received dates
to measure how soon GAO was notified. Often a notification reported both a
vacancy and acting service, with the starting dates for each a few days
apart.

While we tracked the length of time notifications have taken to reach GAO,
we did not track how long notifications have taken to reach the Senate and
House of Representatives. We understood from officials of the White House
Office of Presidential Personnel that OMB sends notifications concurrently
to Congress and GAO. Accordingly, the amount of time notifications have
taken to reach GAO should also reflect the amount of time they have taken to
reach Congress. This parallel time would be true for notifications that OMB
transmitted after agencies began sending all notifications to the White
House Office of Presidential Personnel, which they were to do starting in
July 1999.

We measured the timeliness of notifications for 75 vacancies and, related to
those vacancies, 62 acting officials and 40 nominations. The vacancies
occurred from the effective date of the Vacancies Reform Act, November 21,
1998, to July 13, 2000. In going through the notifications we would analyze,
we screened out 41 notifications for time analysis for two reasons. We
removed 26 notifications because the reported vacancies, and related acting
officials and nominations, were for positions such as U. S. Attorney and U.
S. Marshal positions that have existing statutes that expressly authorize
the designation of officers to perform the functions and duties of these
offices temporarily outside the Vacancies Reform Act. For another 15
notifications, our database lacked a date necessary for computing the
timeliness of

B- 286347 Page 14 GAO/ GGD- 00- 210R Vacancies Reform Act

submissions, and we excluded them from our analysis because time did not
permit us to track down the missing dates. We kept in our analysis two
notifications where GAO was notified before the actual event. For purposes
of our analysis, we assigned zero as the number of days between the start of
the two events and the form- received dates.

In analyzing timeliness on an agency- by- agency basis (enc. II), we noted
that the number of events reported on the tracking system sometimes differed
from the number of events some of the 11 agencies reported to us
individually. For example, the tracking system contained information on
eight acting officials at the Department of the Interior. However, that
department reported six acting officials to us. We have not yet reconciled
these differences, but will do so as we continue our work.

To determine whether vacancies were filled for longer than 210 days by
acting officials, we used data from GAO's Executive Vacancies Act Tracking
System and information that agencies submitted for this review. GAO's
Executive Vacancies Act Tracking System is programmed to count 210 days from
the dates vacancies occur, as reported by the respective agencies. The
tracking system also is programmed to make adjustments provided for by the
Vacancies Reform Act, such as suspending the 210- day count if a vacancy
occurs during the adjournment of Congress or if a nomination has been sent
to the Senate. We obtained tracking system information on how long acting
officials filled PAS positions that had become vacant before as well as
since November 21, 1998. The 210- day limit is the only provision of the
Vacancies Reform Act that also applied to vacancies that existed on November
20, 1998. We tracked how long an acting official occupied a vacant position
through August 2000. We discussed with the GAO staff who operate the
tracking system how the system works in general and what steps they took
when 210 days was about to expire or expired.

As part of our data collection efforts for this review, agencies provided us
with the dates when vacancies had occurred in PAS positions and the dates
when acting officials began and ended their service in those vacancies. We
compared the information agencies submitted with information from GAO's
tracking system. In several instances, GAO was not previously notified of a
vacancy and acting official. As a result, the tracking system could not
monitor those vacancies to determine whether acting officials served longer
than 210 days. In other instances, the tracking system contained information
about the vacancies and acting officials, but the dates recorded did not
match the dates the agencies provided for this review. Where dates were off
by 1 day, we accepted both without further examination. For differences
greater than 1 day, we first tried to resolve the difference by using data
that we already had available. Where differences still remained, we asked
the affected agencies to explain why there were differences, to tell us
which dates were correct, and to explain why those dates were correct. With
this corrected information, we determined, as appropriate, whether the 210
days had elapsed.

We did our work in Washington, D. C., from May 2000 to September 2000 in
accordance with generally accepted government auditing standards.

As agreed with your office, unless you publicly announce this letter's
contents earlier, we plan no further distribution of it until 30 days after
the date of this letter. We will then send copies to Senator Joseph I.
Lieberman, Ranking Minority Member, Senate Committee on

B- 286347 Page 15 GAO/ GGD- 00- 210R Vacancies Reform Act

Governmental Affairs; Senators Thad Cochran, Chairman, and Daniel K. Akaka,
Ranking Minority Member, Subcommittee on International Security,
Proliferation, and Federal Services, Senate Committee on Governmental
Affairs; Senators George V. Voinovich, Chairman, and Richard J. Durbin,
Ranking Minority 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 Elijah E. Cummings, Ranking
Minority Member, Subcommittee on Civil Service, House Committee on
Government Reform; Mr. Bob J. Nash, Assistant to the President and Director,
Office of Presidential Personnel, The White House; the Honorable Janice R.
Lachance, Director, Office of Personnel Management; and the Honorable Jacob
Joseph Lew, Director, Office of Management and Budget. In addition, copies
will be sent to other congressional committees, the heads of the agencies
discussed in this letter, and other interested parties. We will also make
copies available to others on request.

Major contributors to this letter are listed in enclosure III. Please
contact Mr. Richard Caradine, Assistant Director, or me on (202) 512- 8676
if you have any questions.

Sincerely yours, Michael Brostek Associate Director, Federal Management

and Workforce Issues

Enclosure I PAS Positions For Which GAO Was Not Notified Of Vacancies or
Acting Officials as of July 13, 2000

Page 16 GAO/ GGD- 00- 210R Vacancies Reform Act

The Vacancies Reform Act requires agencies to notify GAO of vacancies and
acting service in PAS positions covered by the act. As table I. 1 shows, 6
of the 11 agencies covered by this report had not informed GAO of 8
vacancies and 12 acting officials as of July 13, 2000. In making this
determination, we sent lists of PAS positions to the respective agencies,
and asked them to tell us whether there had been a vacancy or acting service
at any time since November 21, 1998. We then compared the information they
provided with the information they had reported to GAO for the Vacancies
Reform Act. The White House Office of Presidential Personnel provided the
lists of positions that we sent to the agencies.

Not notified of vacancy Not notified of acting official Agency PAS position

Date position became vacant PAS position

Date official began acting service

Commerce Assistant Secretary and Director General, U. S. and Foreign
Commercial Service a 01/ 10/ 2000

Assistant Secretary and Director General, U. S. and Foreign Commercial
Service a 01/ 10/ 2000 DOD Under Secretary for

Personnel and Readiness a 03/ 31/ 2000

Under Secretary for Personnel and Readiness a 04/ 01/ 2000 Justice
Administrator,

Juvenile Justice and Delinquency Prevention 02/ 28/ 2000

Administrator, Juvenile Justice and Delinquency Prevention 03/ 01/ 2000
Associate Attorney General b 10/ 28/ 1999

Associate Attorney General b 10/ 29/ 1999 Director, National Institute of
Justice b 04/ 21/ 2000

Director, National Institute of Justice b 04/ 21/ 2000 Deputy Administrator,
Drug Enforcement Administration b 06/ 02/ 2000 Assistant Attorney General,
Office of Justice Programs b 02/ 25/ 2000

Assistant Attorney General, Office of Justice Programs b 02/ 26/ 2000
Inspector General b 08/ 15/ 1999 Inspector General b 08/ 16/ 1999 Education
Under Secretary b 03/ 13/ 2000 Treasury Assistant Secretary,

Financial Institutions b 07/ 16/ 1999 Assistant Secretary, Public Affairs b
08/ 11/ 1999 Director of the Mint 03/ 27/ 2000 EPA Assistant

Administrator, Environmental Information 12/ 02/ 1999

Table I. 1: Vacancies and Acting Service in PAS Positions Subject to the
Vacancies Reform Act but not Reported to GAO as of July 13, 2000

Enclosure I PAS Positions For Which GAO Was Not Notified Of Vacancies or
Acting Officials as of July 13, 2000

Page 17 GAO/ GGD- 00- 210R Vacancies Reform Act

a DOD and Commerce said that a report had already been submitted to GAO but
provided us with another copy. However, GAO has no record of receiving the
original reports. b GAO received notification after July 13, 2000.

Source: Information provided by the respective agencies and from GAO's
Executive Vacancies Act Tracking System.

Enclosure II Timeliness of Vacancies Reform Act Notifications by Agency

Page 18 GAO/ GGD- 00- 210R Vacancies Reform Act

Between November 21, 1998, and July 13, 2000, GAO received notice of 75 PAS-
position vacancies subject to the Vacancies Reform Act's reporting
requirements from 18 agencies and, related to those vacancies, 62 acting
officials 1 . These numbers do not include the 8 vacancies and 12 acting
officials we identified through this review as not having been previously
reported to GAO as required by the Vacancies Reform Act. Over the same
period, the administration also notified GAO of 40 nominations to the
Senate, related to those 75 vacancies. Table II. 1 shows the mean and median
number of days the administration took to notify GAO of the 75 vacancies and
the 62 acting officials. Table II. 2 provides the mean and median number of
days that nomination notices took to reach GAO.

Vacancy notices Acting official notices Agency Number Mean Median Number
Mean Median

Agriculture 1 19 19 1 19 19 Commerce 7 57 10 6 64 10 DOD 5 41 7 3 22 6
Education 5 49 19 3 42 7 EEOC a 1 33 33 1 32 32 Energy 2 52 52 2 52 52 EPA 3
135 75 2 167 167 HHS 2 18 18 2 18 18 HUD b 1 145 145 0 0 0 Interior 5 46 27
8 31 15 AID c 5 113 105 5 106 91 Justice 4 87 65 4 87 64 Labor 5 28 32 5 26
30 EOP d 4 48 14 4 26 27 State 4 39 41 4 112 50 DOT 6 19 15 6 18 14 Treasury
14 56 34 5 23 22 VA 1 35 35 1 34 34 a EEOC is Equal Employment Opportunity
Commission.

b HUD is Department of Housing and Urban Development. c AID is Agency for
International Development. D Executive Office of the President

Source: GAO's Executive Vacancies Act Tracking System.

1 As the Scope and Methodology section of this report explains, we screened
out certain notifications before arriving at these numbers.

Table II. 1: Mean and Median Number of Days Agencies Took to Notify GAO of
PAS Vacancies and Acting Officials From November 21, 1998, Through July 13,
2000

Enclosure II Timeliness of Vacancies Reform Act Notifications by Agency

Page 19 GAO/ GGD- 00- 210R Vacancies Reform Act

Nomination notices Agency Number Mean Median

Agriculture 1 97 97 Commerce 5 30 17 DOD 3 16 16 Education 3 26 27 EEOC 1 32
32 Energy 1 115 115 EPA 0 0 0 HHS 0 0 0 HUD 0 0 0 Interior 3 17 12 AID 3 83
97 Justice 2 36 36 Labor 3 25 21 EOP 2 22 22 State 1 256 256 DOT 4 7 7
Treasury 8 88 51 VA 0 0 0

Source: GAO's Executive Vacancies Act Tracking System.

Table II. 2: Mean and Median Number of Days Agencies Took to Notify GAO of
PAS Nominations to the Senate

Enclosure III GAO Contacts and Staff Acknowledgments

Page 20 GAO/ GGD- 00- 210R Vacancies Reform Act

Michael Brostek or Richard W. Caradine (202) 512- 8676 In addition to the
individuals named above, Terry L. Draver, H. John Ripper, Marlene M.
Zacharias, Domingo D. Nieves, Janet C. Dolen, Randall L. Byle, V. Bruce
Goddard, Alan N. Belkin, and Anthony Assia made key contributions to this
report. GAO Contacts

Acknowledgments

Page 21 GAO/ GGD- 00- 210R Vacancies Reform Act

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