Vacancies Act: Executive Branch Noncompliance (Testimony, 03/18/98,
GAO/T-OGC-98-39).

GAO discussed its views on the application of the Vacancies Act to
positions that require Senate confirmation.

GAO noted that: (1) in a long line of cases beginning in 1973, the
Comptroller General has maintained that the Vacancies Act is the
exclusive authority for the temporary filling of vacant positions that
require presidential appointment and Senate confirmation; (2)
application of the Vacancies Act can be superseded only if there is
specific statutory language providing another means for filling the
particular vacancy in question; (3) the Department of Justice (DOJ) and
other executive departments have taken exception to GAO's opinion; (4)
they maintain that the Vacancies Act can be overcome by provisions in
their enabling statutes that vest the functions of the department in the
agency head and give general authority to this official to assign
functions and delegate authority within the department; (5) the position
of DOJ and other departments is not supported by the language of the
Vacancies Act or the enabling statutes which are cited; (6) moreover,
the legislative history of the Vacancies Act, including the 1988
amendments thereto, as well as the Department of Justice Act of 1870 and
various reorganization plans do not support their position; (7) by
passing legislation providing for an alternative means for filling
specific vacancies in some cases, Congress has shown that it knows how
to provide for independent statutory authority separate and apart from
the Vacancies Act; (8) if the position of DOJ and other departments is
accepted, these specific provisions would be redundant and need not have
been enacted; and (9) although GAO believes that the Vacancies Act is
clear, amendment of the Act to clarify congressional intent could help
insure that the Act is followed and that the President acts in a
judicious manner to make appointments which are subject to Senate
scrutiny.

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

 REPORTNUM:  T-OGC-98-39
     TITLE:  Vacancies Act: Executive Branch Noncompliance
      DATE:  03/18/98
   SUBJECT:  Statutory law
             Executive agencies
             Presidential appointments
             Personnel management
             Reporting requirements
             Congressional/executive relations
             Noncompliance

             
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Cover
================================================================ COVER


Before the Committee on Governmental Affairs, U.S.  Senate

For Release on
Delivery Expected
at 10:00 a.m., EST
Wednesday,
March 18, 1998

VACANCIES ACT - EXECUTIVE BRANCH
NONCOMPLIANCE

Statement of
Joan M.  Hollenbach
Associate General Counsel

GAO/T-OGC-98-39

GAO/OGC-98-39T



Abbreviations
=============================================================== ABBREV


============================================================ Chapter 0

Mr.  Chairman, Senator Glenn, and Members of the Committee:  I am
pleased to appear before you today to discuss the General Accounting
Office's views on the application of the Vacancies Act to positions
that require Senate confirmation.  As you know, GAO has long
maintained that except in limited circumstances, the Vacancies Act is
the exclusive authority for temporarily filling vacant positions that
require Senate confirmation.  Provisions in general enabling statutes
that give the head of the department or agency the authority to
exercise the functions of the department and to delegate these
functions to others are insufficient to preclude application of the
Act. 

The Vacancies Act sets forth methods for temporarily filling vacant
positions in Executive agencies and military departments that require
Presidential appointment with the advice and consent of the Senate. 
The vacancies must have been created by the death, resignation,
sickness or absence of the incumbent and cannot arise because of the
creation of a new office or position.  The Act provides two methods
for the temporary filling of vacant positions.  According to 5 U.S.C. 
ï¿½ï¿½ 3345 and 3346, the first assistant of the office may fill the
position on a temporary basis.  If the first assistant does not fill
the position, then according to section 3347, any officer, including
the head of another Executive or military department, whose regular
appointment was made by the President with Senate confirmation, may
serve in the office on a temporary basis.  Significantly, section
3349 makes these methods the sole means for temporarily filling the
vacancies covered by the Act, except when a vacancy occurs during a
Senate recess.  Once a vacancy is temporarily filled, special rules
apply to the length of time an official may serve in an "acting"
capacity.  Section 3348 provides that as a general rule the position
may not be filled temporarily for more than 120 days.  There are,
however, exceptions to the rule if a nomination has been made to the
Senate, the vacancy occurs during an adjournment of Congress sine die
or the vacancy is filled during a recess of the Congress.  In these
circumstances, a person may generally continue in the office past the
120 days. 

Over the years we have often been called upon by Members of Congress
to issue opinions concerning officials who are serving in "acting"
capacities in various Executive departments or agencies without
Senate confirmation.  In a long line of cases beginning in 1973, the
Comptroller General has maintained that the Vacancies Act is the
exclusive authority for the temporary filling of vacant positions
that require presidential appointment and Senate confirmation.  We
believe that the application of the Vacancies Act can be superseded
only if there is specific statutory language providing another means
for filling the particular vacancy in question.  For example, in a
1988 case we were asked whether the position of Acting Administrator
at GSA was subject to the Vacancies Act.  Because Congress had
specifically provided in GSA's enabling statute that the President
could appoint any officer of the government to serve in that
capacity, we held that the position was not subject to the Vacancies
Act if it was filled in the manner prescribed by the statute. 
Similarly, in a 1981 decision we noted that a provision in the
enabling statute of the Department of Energy provides that the Deputy
Secretary shall act for the Secretary when that office is vacant. 
Accordingly, we concluded that the Vacancies Act did not apply to the
Acting Secretary position if this provision were followed in filling
the vacancy.  In an earlier decision in 1976, we reached a similar
conclusion with respect to a vacancy in the position of Deputy
Administrator of the Drug Enforcement Agency.  In each of these
cases, Congress provided independent statutory authority to fill a
specific vacancy and therefore the time limitations of the Vacancies
Act do not apply. 

The Justice Department and other Executive departments have taken
exception to our opinion.  They maintain that the Vacancies Act can
be overcome by provisions in their enabling statutes that vest the
functions of the department in the agency head and give general
authority to this official to assign functions and delegate authority
within the department.  We fundamentally disagree with these
arguments.  The position of Justice and the other departments is not
supported by the language of the Vacancies Act or the enabling
statutes which are cited.  Moreover, the legislative history of the
Vacancies Act, including the 1988 amendments thereto, as well as the
Department of Justice Act of 1870 and various reorganization plans do
not support their position.  By passing legislation providing for an
alternative means for filling specific vacancies in some cases,
Congress has shown that it knows how to provide for independent
statutory authority separate and apart from the Vacancies Act.  If
the position of the Justice Department and other departments is
accepted, these specific provisions would be redundant and need not
have been enacted. 

The Vacancies Act is an important means to safeguard the delicate
balance established by the Appropriations Clause of the Constitution
between the President and the Senate in the appointments process. 
Since many Executive departments have provisions in their enabling
statutes vesting authority in the agency head and permitting
delegations of authority, the position of Justice and the other
Executive departments would, in effect, virtually nullify the
prohibitions contained in the Vacancies Act.  We do not believe
Congress could have intended this to occur. 

The Administration's continued disregard of the Vacancies Act in the
face of congressional intent, numerous Comptroller General opinions,
and heightened congressional and public scrutiny, suggests that the
Congress consider additional action to assure compliance.  We believe
that the Congress should consider amending the Vacancies Act to: 

  -- explicitly provide that the Vacancies Act can be superseded only
     by another statute that provides an alternative means for
     filling a specific, identified vacancy.  This would remove any
     doubt that the basic authorizing statutes of the Justice
     Department and others do not preclude application of the
     Vacancies Act. 

  -- prohibit salary payments to those who occupy positions in
     violation of the Vacancies Act, regardless of whether that
     individual is also simultaneously, lawfully occupying another
     position.  This would provide an incentive for the President and
     those filling the vacancies to comply with the Act. 

  -- include a reporting mechanism, such as requiring agencies to
     advise this Committee or the Comptroller General about
     vacancies, their duration, and nominations.  This would provide
     oversight to help assure that vacancies in the government's most
     responsible positions are timely filled. 

Although we believe that the Vacancies Act is clear, amendment of the
Act to clarify congressional intent could help insure that the Act is
followed and that the President acts in a judicious manner to make
appointments which are subject to Senate scrutiny. 

This concludes my prepared statement Mr.  Chairman, and I would
welcome any question you or other Members of the Committee may have. 


*** End of document. ***