B-209946 L/M, JAN 12, 1983

B-209946 L/M, JAN 12, 1983

PRECIS-UNAVAILABLE

JOHN P. EAST, UNITED STATES SENATE:

BY LETTER OF NOVEMBER 18, 1982, YOU ASKED US TO EXAMINE THE STATUS OF MR. ROBERT T. GREY AT THE ARMS CONTROL AND DISARMAMENT AGENCY IN VIEW OF REPORTS YOU HAVE RECEIVED WHICH INDICATE THAT MR. GREY HAS FUNCTIONED AS ACTING DIRECTOR OF THE AGENCY IN THE ABSENCE OF THE DULY APPOINTED DIRECTOR EUGENE V. ROSTOW, BY VIRTUE OF HIS POSITION AS ACTING DEPUTY DIRECTOR. YOU SET FORTH YOUR BELIEF THAT MR. GREY MAY NOT PROPERLY PERFORM THE DUTIES OF EITHER "ACTING DEPUTY DIRECTOR" OR "ACTING DIRECTOR" OF THE AGENCY SINCE HIS NOMINATION TO THE POSITION OF DEPUTY DIRECTOR HAS NOT BEEN CONFIRMED BY THE SENATE.

THE UNITED STATES ARMS CONTROL AND DISARMAMENT AGENCY WAS ESTABLISHED BY THE ARMS CONTROL AND DISARMAMENT ACT, PUBLIC LAW 87-297, SEPTEMBER 26, 1961, 75 STAT. 631, NOW CODIFIED AT 22 U.S.C. 2551-2590. THE ACT PROVIDES THAT THE AGENCY SHALL BE HEADED BY A DIRECTOR WHO SHALL BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. 22 U.S.C. 2562. THE ACT ALSO PROVIDES FOR A DEPUTY DIRECTOR OF THE AGENCY WHO SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, WHO SHALL PERFORM SUCH DUTIES AND EXERCISE SUCH POWERS AS THE DIRECTOR MAY PRESCRIBE. THE DEPUTY DIRECTOR SHALL ACT FOR, AND EXERCISE THE POWERS OF THE DIRECTOR DURING HIS ABSENCE OR DISABILITY OR DURING A VACANCY IN SAID OFFICE. 22 U.S.C. 2563.

WE HAVE BEEN INFORMALLY ADVISED BY THE ARMS CONTROL AGENCY THAT MR. GREY IS CURRENTLY AN OFFICER IN THE SENIOR FOREIGN SERVICE. EFFECTIVE APRIL 5, 1981, MR. GREY WAS DETAILED FROM THE DEPARTMENT OF STATE TO THE AGENCY ON A REIMBURSABLE BASIS FOR A PERIOD NOT TO EXCEED 90 DAYS. IN JULY 1981 THE STATE DEPARTMENT APPROVED AN EXTENSION OF MR. GREY'S DETAIL TO THE AGENCY FOR AN ADDITIONAL TWO-YEAR PERIOD. AT THE TIME OF HIS INTENDED DETAIL MR. GREY WAS A FOREIGN SERVICE OFFICER, CLASS 3, AND HE WAS DETAILED TO ACT IN THE POSITION OF SPECIAL ASSISTANT TO THE DIRECTOR OF THE ARMS CONTROL AGENCY, A POSITION WHICH IS NOT AN OFFICE CREATED BY LAW. THERE IS SPECIFIC STATUTORY AUTHORITY FOR SUCH A DETAIL FROM THE DEPARTMENT OF STATE TO THE AGENCY. SEE 22 U.S.C. 2581(C) AND 22 U.S.C. 3983, (SUPP. IV 1980). THEREFORE, WE SEE NO BASIS TO QUESTION THE LEGALITY OF THAT ACTION. HOWEVER, EFFECTIVE OCTOBER 16, 1981, MR. GREY WAS DESIGNATED AS THE ACTING DEPUTY DIRECTOR OF THE AGENCY. A POSITION DESCRIPTION DATED DECEMBER 31, 1981, SHOWS THAT MR. GREY WAS OCCUPYING THE POSITION OF DEPUTY DIRECTOR. THE POSITION DESCRIPTION WAS CONSISTENT WITH 22 U.S.C. 2563 PROVIDING THAT THE DEPUTY DIRECTOR SHALL ACT FOR AND EXERCISE THE POWERS OF THE DIRECTOR DURING HIS ABSENCE OR DISABILITY OR DURING A VACANCY IN SUCH OFFICE. ON FEBRUARY 11, 1982, THE PRESIDENT SUBMITTED TO THE SENATE HIS NOMINATION OF MR. GREY FOR THE POSITION OF DEPUTY DIRECTOR OF THE AGENCY.

THE APPOINTMENTS CLAUSE, ARTICLE II, SECTION 2, CLAUSE 2, OF THE UNITED STATES CONSTITUTION PROVIDES THAT THE PRESIDENT:

"*** SHALL NOMINATE, AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, SHALL APPOINT *** ALL OTHER OFFICERS OF THE UNITED STATES, WHOSE APPOINTMENTS ARE NOT HEREIN OTHERWISE PROVIDED FOR, AND WHICH SHALL BE ESTABLISHED BY LAW: BUT THE CONGRESS MAY BY LAW VEST THE APPOINTMENT OF SUCH INFERIOR OFFICERS, AS THEY THINK PROPER, IN THE PRESIDENT ALONE, IN THE COURTS OF LAW, OR IN THE HEADS OF DEPARTMENTS."

THIS CONSTITUTIONAL PROVISION REQUIRES SENATE CONFIRMATION OF ALL FEDERAL OFFICERS NOT OTHERWISE PROVIDED FOR IN THE CONSTITUTION UNLESS CONGRESS BY LAW HAS VESTED THEIR APPOINTMENTS ELSEWHERE. WHILE UNDER ARTICLE 2, SECTION 2, CLAUSE 3, OF THE CONSTITUTION THE PRESIDENT MAY FILL A VACANCY WHICH EXISTS DURING A RECESS OF THE SENATE, THE PRESIDENT HAS APPARENTLY NOT GIVEN MR. GREY A RECESS APPOINTMENT TO THE OFFICE OF DEPUTY DIRECTOR OF THE ARMS CONTROL AGENCY.

THE ONLY GENERAL CONCESSION OR DELEGATION OF POWER BY CONGRESS TO THE PRESIDENT TO BYPASS CONFIRMATION WHEN THE SENATE IS IN SESSION IS IN THE SO-CALLED VACANCIES ACT, 5 U.S.C. 3345-3349, TO WHICH YOU REFERRED. THE VACANCIES ACT PROVIDES LIMITED AUTHORITY TO FILL CERTAIN POSITIONS TEMPORARILY FOR NOT MORE THAN 30 DAYS, AND IS EXPRESSLY RESTRICTED TO THE FILLING OF VACANCIES IN THE EXECUTIVE DEPARTMENTS OR MILITARY DEPARTMENTS AND IS NOT APPLICABLE TO INDEPENDENT AGENCIES. SEE WILLIAMS V. PHILLIPS, 360 F.SUPP. 1363 (D.C. 1973), MOTION DENIED, 482 F.2D 669 (1973). THE ARMS CONTROL AND DISARMAMENT AGENCY IS NEITHER AN EXECUTIVE DEPARTMENT NOR A MILITARY DEPARTMENT. SEE 5 U.S.C. 101 (SUPP. IV, 1980), AND 5 U.S.C. 102. INSTEAD, THE AGENCY IS AN "INDEPENDENT ESTABLISHMENT" WHICH IS DEFINED IN PERTINENT PART AT 5 U.S.C. 104 (SUPP. IV, 1980), AS AN ESTABLISHMENT IN THE EXECUTIVE BRANCH WHICH IS NOT AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT. THUS, THE VACANCIES ACT DOES NOT APPLY TO THE FILLING OF VACANCIES OF THOSE OFFICES IN THE ARMS CONTROL AGENCY WHICH REQUIRE SENATE CONFIRMATION. AS DESCRIBED ABOVE, THE CONGRESS HAS PROVIDED SPECIFIC AUTHORITY FOR THE DEPUTY DIRECTOR TO ACT AS DIRECTOR OF THE AGENCY WHEN THE DIRECTOR'S POSITION IS VACANT. HOWEVER, THERE IS NO SUCH STATUTORY AUTHORITY FOR THE TEMPORARY FILLING OF A VACANCY IN THE OFFICE OF THE DEPUTY DIRECTOR.

IN VIEW OF THE INAPPLICABILITY OF THE VACANCIES ACT TO THE ARMS CONTROL AGENCY AND SINCE THERE IS NO SPECIFIC STATUTORY AUTHORITY FOR THE FILLING OF A VACANCY IN THE OFFICE OF DEPUTY DIRECTOR, IT WOULD APPEAR THAT THERE IS NO AUTHORITY FOR THE FILLING OF SUCH VACANCY WHEN THE SENATE IS IN SESSION EXCEPT UNDER THE AUTHORITY OF ARTICLE II, SECTION 2, CLAUSE 2, OF THE CONSTITUTION. SEE IN THIS REGARD WILLIAMS V. PHILLIPS, CITED ABOVE, WHERE THE DISTRICT COURT CONSIDERED THE APPOINTMENT BY THE PRESIDENT WITHOUT SENATE CONFIRMATION OF AN ACTING DIRECTOR OF THE OFFICE OF ECONOMIC OPPORTUNITY, AN INDEPENDENT ESTABLISHMENT, WHERE THE APPLICABLE STATUTE PROVIDED THAT THE DIRECTOR THEREOF WAS TO BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. UPON HAVING DETERMINED THAT THE AGENCY INVOLVED WAS AN INDEPENDENT ESTABLISHMENT AND THE VACANCIES ACT WAS NOT APPLICABLE, THE DISTRICT COURT HELD THAT IN THE ABSENCE OF OTHER SPECIFIC LEGAL AUTHORITY PROVIDING FOR THE APPOINTMENT OF AN ACTING DIRECTOR, THE APPOINTMENT BY THE PRESIDENT WAS VOID AB INITIO. THE COURT ISSUED AN INJUNCTION RESTRAINING THE APPOINTEE FROM ANY FURTHER ACTION. THE COURT NOTED THAT AN INTERIM APPOINTMENT POWER IN THE PRESIDENT ALONE, IF IT EXISTS AT ALL, EXISTS ONLY IN EMERGENCY SITUATIONS. IN REFUSING A MOTION TO SET ASIDE THE INJUNCTION THE CIRCUIT COURT STATED THAT EVEN IF A COURT SHOULD ACCEPT AN ARGUMENT THAT THE APPOINTMENT OF THE OFFICE'S ACTING DIRECTOR WAS NOT VOID AB INITIO DUE TO THE PRESIDENT'S CONSTITUTIONAL OBLIGATION TO "TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED", SUCH AN APPOINTMENT IF UPHELD WOULD BE VALID ONLY FOR A REASONABLE PERIOD OF TIME. THE COURT EXPRESSED THE VIEW THAT THE 30 -DAY PERIOD PROVIDED IN THE VACANCIES ACT IS AN INDICATION OF SUCH REASONABLE PERIOD OF TIME. SEE 482 F.2D 669 AT 671.

WE DO NOT HAVE ANY INFORMATION WHICH WOULD INDICATE THAT THE PRESIDENT HAS ACTED UNILATERALLY TO APPOINT MR. GREY AS DEPUTY DIRECTOR ON THE BASIS OF A PERCEIVED EMERGENCY OR OTHERWISE. WE ALSO NOTE THAT THE FACTS SHOW THAT MR. GREY HAS ACTED AS DEPUTY DIRECTOR IN EXCESS OF THE 30-DAY PERIOD WHICH THE CIRCUIT COURT IN PHILLIPS REGARDED AS A REASONABLE TIME PERIOD FOR AN INTERIM APPOINTMENT BY THE PRESIDENT, IF, IN FACT, THE PRESIDENT SHOULD BE DEEMED TO ENJOY SUCH AUTHORITY. ALSO, WE BELIEVE IT IS CLEAR THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, THE DIRECTOR OF THE ARMS CONTROL AGENCY COULD NOT, EITHER DIRECTLY OR THROUGH A SUBORDINATE AGENCY OFFICIAL, APPOINT MR. GREY AS ACTING DEPUTY DIRECTOR OF THE AGENCY.

IN VIEW OF THE ABOVE, IT IS CLEAR THAT MR. GREY HAS NOT VALIDLY OCCUPIED THE POSITION OF DEPUTY DIRECTOR OF THE AGENCY. THUS, HE WOULD NOT BE ENTITLED TO SERVE AS ACTING DIRECTOR OF THE AGENCY IN THE ABSENCE OF THE DIRECTOR, AND WE SEE NO BASIS UPON WHICH HE COULD PROPERLY REPRESENT HIMSELF AS EITHER ACTING DEPUTY DIRECTOR OR ACTING DIRECTOR OF THE AGENCY.

WE NOTE THAT IN ADDITION TO THE DIRECTOR AND THE DEPUTY DIRECTOR THERE HAVE BEEN ESTABLISHED BY LAW WITHIN THE AGENCY NOT TO EXCEED FOUR ASSISTANT DIRECTORS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, WHO SHALL PERFORM SUCH DUTIES AND EXERCISE SUCH POWERS AS THE DIRECTOR MAY PRESCRIBE. 22 U.S.C. 2564. HOWEVER, THERE IS NO SPECIFIC STATUTORY AUTHORITY FOR AN ASSISTANT DIRECTOR TO ACT FOR AND EXERCISE THE POWERS OF THE DIRECTOR DURING HIS ABSENCE OR DISABILITY OR DURING A VACANCY IN THAT OFFICE.

UNDER 22 U.S.C. 2581(H) THE DIRECTOR IS AUTHORIZED TO DELEGATE, AS APPROPRIATE, TO THE DEPUTY DIRECTOR OR OTHER OFFICERS OF THE AGENCY, ANY AUTHORITY CONFERRED UPON THE DIRECTOR BY THE PROVISIONS OF 22 U.S.C. 2551- 2590. THE ARMS CONTROL AGENCY'S REGULATIONS SET FORTH AT TITLE 22, CODE OF FEDERAL REGULATIONS (1982), PART 601, CONCERN AGENCY RESPONSIBILITIES AND STRUCTURES, AND FUNCTIONAL STATEMENTS OF PRINCIPAL POSITIONS IN THE AGENCY. HOWEVER, THEY DO NOT CONTAIN ANY DELEGATION OF AUTHORITY TO ANY OFFICER OF THE AGENCY TO ACT FOR THE DIRECTOR DURING HIS TEMPORARY ABSENCE, FOR EXAMPLE, WHILE THE DIRECTOR IS ON VACATION OR TRAVEL STATUS WHERE THERE IS A VACANCY IN THE POSITION OF DEPUTY DIRECTOR.

WITH REGARD TO THE VALIDITY OF ACTIONS MR. GREY MAY HAVE TAKEN AS ACTING DEPUTY DIRECTOR OR ACTING DIRECTOR OF THE AGENCY, WE HAVE HELD THAT ACTS PERFORMED WHILE A PERSON IS SERVING IN A DE FACTO STATUS ARE AS VALID AND EFFECTUAL INSOFAR AS THEY CONCERN THE PUBLIC AND THE RIGHTS OF THIRD PERSONS AS THOUGH HE WERE AN OFFICER DE JURE. 42 COMP.GEN. 495 (1963). A DE FACTO OFFICER OR EMPLOYEE IS ONE WHO PERFORMS THE DUTIES OF AN OFFICE OR POSITION WITH APPARENT RIGHT AND UNDER COLOR OF AN APPOINTMENT AND CLAIM OF TITLE TO SUCH OFFICE OR POSITION. WHERE THERE IS AN OFFICE OR POSITION TO BE FILLED, AND ONE ACTING UNDER COLOR OF AUTHORITY FILLS THE OFFICE OR POSITION AND PERFORMS ITS DUTIES, HIS ACTIONS ARE THOSE OF A DE FACTO OFFICER OR EMPLOYEE. SEE MATTER OF KEEL AND HERNANDEZ, B-188424, MARCH 22, 1977.

WITH REGARD TO DEFECTIVE OR INVALID APPOINTMENTS THE GENERAL RULE IS STATED IN 63 AM.JUR.2D, PUBLIC OFFICERS AND EMPLOYEES, SEC. 504 (1972), AS FOLLOWS:

"THE GENERAL RULE IS THAT WHEN AN OFFICIAL PERSON OR BODY HAS APPARENT AUTHORITY TO APPOINT TO PUBLIC OFFICE, AND APPARENTLY EXERCISES SUCH AUTHORITY, AND THE PERSON SO APPOINTED ENTERS ON AND PERFORMS ITS DUTIES, HE WILL BE AN OFFICER DE FACTO, NOTWITHSTANDING THAT THERE WAS WANT OF POWER TO APPOINT IN THE BODY OR PERSON WHO PROFESSED TO DO SO ***."

IT IS NOT ENTIRELY CLEAR WHETHER THE COURTS WOULD APPLY THE DE FACTO DOCTRINE WHERE THE OCCUPANCY OF AN OFFICE WOULD APPEAR TO VIOLATE THE REQUIREMENT OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

IT APPEARS THAT MR. GREY HAS SERVED AS ACTING DEPUTY DIRECTOR, AND ACTING DIRECTOR OF THE AGENCY, IN THE ABSENCE OF THE DIRECTOR, WITH THE APPARENT FULL KNOWLEDGE AND ACQUIESCENCE OF THE DULY APPOINTED DIRECTOR. PURSUANT TO HIS BROAD STATUTORY AUTHORITY UNDER THE ARMS CONTROL AND DISARMAMENT ACT, AS AMENDED, THE DIRECTOR COULD RATIFY THOSE ACTIONS AND DECISIONS OF MR. GREY WITH WHICH HE AGREES IN ORDER TO AVOID ANY FURTHER UNCERTAINTY AS TO THEIR BINDING EFFECT. SEE 56 COMP.GEN. 761 (1977) AND B-150136, MAY 16, 1978.

FINALLY, AS INDICATED ABOVE, MR. GREY WAS APPARENTLY PROPERLY DETAILED FROM THE DEPARTMENT OF STATE TO THE ARMS CONTROL AGENCY IN CONNECTION WITH HIS SERVICE AS ACTING SPECIAL ASSISTANT TO THE DIRECTOR. IN ACCORDANCE WITH HIS DETAIL TO THE AGENCY MR. GREY MAY SERVE AS AN EMPLOYEE OF THE AGENCY AND CARRY OUT DUTIES OF THE POSITION TO WHICH HE IS PROPERLY ASSIGNED.

WE TRUST THAT THE ABOVE INFORMATION SERVES THE PURPOSE OF YOUR INQUIRY.