B-218996(2), JUN 4, 1985

B-218996(2): Jun 4, 1985

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WE CONCLUDED THAT THE DELEGATION OF AUTHORITY TO THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR WAS NOT LEGALLY APPROPRIATE. IN ANSWERS TO RELATED QUESTIONS WE CONCLUDED: (1) THAT THE POSITION OF EXECUTIVE ASSISTANT WAS PROPERLY CREATED UNDER THE SES. OUR OPINION ON THE LEGALITY OF THE DELEGATION ALSO WAS REQUESTED BY LETTER DATED MAY 23. ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO CHAIRMAN STEVENS. WHICH CONCLUDES THAT THE DELEGATION WAS NOT LEGALLY APPROPRIATE. YOUR LETTER RAISES FOUR OTHER QUESTIONS WHICH WE HAVE ANALYZED AND ANSWERED AS FOLLOWS: (1) THE CREATION OF THE POSITION OF "EXECUTIVE ASSISTANT TO THE DIRECTOR" UNDER AN SES LIMITED EMERGENCY APPOINTMENT WAS LEGALLY PROPER.

B-218996(2), JUN 4, 1985

DELEGATION OF AUTHORITY - HEADS OF AGENCIES TO SUBORDINATES - AUTHORITY EXCEEDED DIGEST: CHAIRMAN, SENATE GOVERNMENTAL AFFAIRS COMMITTEE, ASKED SEVERAL QUESTIONS CONCERNING THE DELEGATION OF AUTHORITY BY THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT (OPM) FOLLOWING THE END OF HIS 4-YEAR TERM. IN OUR LETTER TO SENATOR STEVENS (B-218996, DATED TODAY), WE CONCLUDED THAT THE DELEGATION OF AUTHORITY TO THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR WAS NOT LEGALLY APPROPRIATE. IN ANSWERS TO RELATED QUESTIONS WE CONCLUDED: (1) THAT THE POSITION OF EXECUTIVE ASSISTANT WAS PROPERLY CREATED UNDER THE SES; (2) THAT ACTIONS TAKEN BY DR. DEVINE AFTER THE EXPIRATION OF HIS TERM COULD BE VALIDATED ON THE BASIS OF THE DE FACTO RULE OR BY RATIFICATION BY THE ACTING DIRECTOR OF OPM; (3) THAT THE FREEDOM OF INFORMATION ACT REQUIRES THAT DELEGATIONS OF AUTHORITY BE MADE PROMPTLY AVAILABLE TO THE PUBLIC; AND (4) THAT THE HATCH ACT APPLIES TO THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR OR OPM.

THE HONORABLE WILLIAM V. ROTH, JR.: CHAIRMAN, COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE

THIS RESPONDS TO YOUR LETTER OF MAY 31, 1985, REQUESTING OUR OPINION ON THE LEGALITY OF THE DELEGATION OF THE AUTHORITY BY THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT TO THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR, AND ON OTHER RELATED ISSUES.

OUR OPINION ON THE LEGALITY OF THE DELEGATION ALSO WAS REQUESTED BY LETTER DATED MAY 23, 1985, FROM CHAIRMAN STEVENS, OF THE SUBCOMMITTEE ON CIVIL SERVICE, POST OFFICE, AND GENERAL SERVICES. ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO CHAIRMAN STEVENS, WHICH CONCLUDES THAT THE DELEGATION WAS NOT LEGALLY APPROPRIATE. SPECIFICALLY, WE BELIEVE THAT THE DELEGATION: (1) EXCEEDED THE SCOPE OF THE DIRECTOR'S AUTHORITY TO DELEGATE HIS FUNCTIONS UNDER 5 U.S.C. SEC. 1103(A); AND (2) CIRCUMVENTED THE 4-YEAR LIMIT ON THE DIRECTOR'S TERM IMPOSED BY 5 U.S.C. SEC. 1102(A).

YOUR LETTER RAISES FOUR OTHER QUESTIONS WHICH WE HAVE ANALYZED AND ANSWERED AS FOLLOWS: (1) THE CREATION OF THE POSITION OF "EXECUTIVE ASSISTANT TO THE DIRECTOR" UNDER AN SES LIMITED EMERGENCY APPOINTMENT WAS LEGALLY PROPER; (2) THE ACTIONS TAKEN BY DR. DEVINE COULD BE VALIDATED ON THE BASIS OF THE DE FACTO RULE OR BY RATIFICATION BY THE ACTING DIRECTOR; (3) THE FREEDOM OF INFORMATION ACT REQUIRES THAT THE DELEGATION OF AUTHORITY BE PROMPTLY MADE AVAILABLE TO THE PUBLIC; AND (4) THE HATCH ACT WOULD APPLY TO THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR OF OPM. YOUR QUESTIONS AND OUR ANALYSIS ARE AS FOLLOWS.

QUESTION: WHAT IS THE LEGALITY AND PROPRIETY OF THE CREATION OF A SES LIMITED EMERGENCY APPOINTMENT FOR DR. DEVINE?

ANSWER: BASED ON THE INFORMATION AVAILABLE TO US, THERE APPEARS TO BE NO LEGAL OBJECTION PER SE TO OPM'S ACTIONS IN CREATING THE POSITION OF "EXECUTIVE ASSISTANT TO THE DIRECTOR" OF OPM AND FILLING THIS POSITION BY A "LIMITED EMERGENCY APPOINTMENT." THE LEGAL ASPECTS OF THESE ACTIONS ARE DISCUSSED BELOW. FOR THE REASONS STATED IN OUR OPINION TO CHAIRMAN STEVENS, HOWEVER, WE DO NOT BELIEVE IT WAS APPROPRIATE TO APPOINT DR. DEVINE TO THE EXECUTIVE ASSISTANT POSITION IN VIEW OF THE DELEGATION OF AUTHORITY AND LINE FUNCTIONS VESTED IN THAT POSITION.

POSITIONS IN THE SENIOR EXECUTIVE SERVICE (SES) ARE ESTABLISHED PURSUANT TO SUBCHAPTER II OF CHAPTER 31, TITLE 5, UNITED STATES CODE. A "LIMITED EMERGENCY APPOINTEE" IN THE SES IS DEFINED AS AN INDIVIDUAL APPOINTED UNDER A NONRENEWABLE APPOINTMENT, NOT TO EXCEED 18 MONTHS, TO AN SES POSITION ESTABLISHED TO MEET A BONA FIDE, UNANTICIPATED, URGENT NEED. U.S.C. SEC. 3132(A)(6) (1982). THE TOTAL NUMBER OF LIMITED EMERGENCY APPOINTEES (COMBINED WITH LIMITED TERM APPOINTEES WHO SERVE A NONRENEWABLE TERM OF 3 YEARS OR LESS) IN ALL AGENCIES MAY NOT EXCEED 5 PERCENT OF THE TOTAL NUMBER OF SES POSITIONS IN ALL AGENCIES. 5 U.S.C. SEC. 3134(E) (1982). IN ADDITION, EACH LIMITED EMERGENCY APPOINTEE SHALL MEET THE QUALIFICATIONS OF THE POSITION TO WHICH APPOINTED, AS DETERMINED IN WRITING BY THE APPOINTING AUTHORITY. 5 U.S.C. SEC. 3394(A). FINALLY, AN INDIVIDUAL MAY NOT BE APPOINTED AS A LIMITED EMERGENCY APPOINTEE WITHOUT THE PRIOR APPROVAL OF THE OFFICE OF PERSONNEL MANAGEMENT. 5 U.S.C. SEC. 3394(B).

IN OUR OPINION THERE EXISTS CLEAR STATUTORY AUTHORITY FOR CREATING THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR OF OPM. THE NECESSARY PERSONNEL FORMS WHICH WERE PROVIDED TO US AS AN ATTACHMENT TO A MEMORANDUM BY OPM'S GENERAL COUNSEL DATED MAY 17, 1985, APPEAR TO BE IN ORDER.

OUR OFFICE CANNOT, ON THE BASIS OF THE INFORMATION SUPPLIED TO US, DETERMINE WHETHER CREATION OF THIS POSITION MET A "BONA FIDE, UNANTICIPATED, URGENT NEED" AS REQUIRED BY THE STATUTE. WE HAVE NOT EXAMINED, NOR DO WE HAVE KNOWLEDGE OF, THE NEEDS OF THE OFFICE OF PERSONNEL MANAGEMENT FOR A SENIOR MANAGEMENT OFFICIAL TO PERFORM THE DUTIES OF THIS POSITION. THUS, WE ARE UNABLE TO CHALLENGE THE "BONA FIDE" NATURE OF THIS APPOINTMENT. SIMILARLY, WE ARE NOT IN A POSITION TO QUESTION WHETHER THE NEED FOR THIS POSITION WAS UNANTICIPATED OR URGENT.

THERE IS NO INDICATION THAT CREATION OF THIS POSITION EXCEEDED THE STATUTORY LIMITATION OF THESE AND SIMILAR POSITIONS, AND, IN FACT, THERE IS EVIDENCE THAT THIS POSITION WAS WITHIN THE PROPER ALLOCATION OF SUCH SES POSITIONS. SEE THE MEMORANDUM DATED MARCH 25, 1985, FROM MARY ROSE, OPM'S ASSISTANT DIRECTOR FOR EXECUTIVE ADMINISTRATION.

THE STATUTES ALSO REQUIRE THAT EACH APPOINTEE TO SUCH AN SES POSITION MUST MEET THE QUALIFICATIONS OF THE POSITION, AS DETERMINED IN WRITING BY THE APPOINTING AUTHORITY. ALTHOUGH THERE IS NO EVIDENCE IN THE DOCUMENTS BEFORE US THAT SUCH A WRITTEN DETERMINATION WAS PREPARED IN THIS INSTANCE, WE BELIEVE THAT DR. DEVINE, HAVING COMPLETED A 4-YEAR TERM AS DIRECTOR OF OPM, CLEARLY WAS QUALIFIED TO PERFORM THE DUTIES OF THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR. AS NOTED PREVIOUSLY, OUR CONCLUSION THAT HIS APPOINTMENT TO THIS POSITION WAS UNAUTHORIZED IS BASED ON DIFFERENT GROUNDS.

QUESTION: WHAT IS THE VULNERABILITY TO LEGAL CHALLENGE OF ACTIONS TAKEN BY DR. DEVINE WHILE SERVING AS EXECUTIVE ASSISTANT TO THE DIRECTOR?

ANSWER: WE DO NOT KNOW WHAT ACTIONS DR. DEVINE TOOK IN RELIANCE ON THE DELEGATION; NOR CAN WE EXPRESS A DEFINITIVE OPINION ON THE LEGAL STATUS OF ANY SUCH ACTIONS. NEVERTHELESS, WE BELIEVE THAT DR. DEVINE MAY BE GRANTED DE FACTO STATUS SO AS TO VALIDATE HIS ACTIONS, OR, IN THE ALTERNATIVE, THE ACTIONS HE TOOK UNDER THE DELEGATION WOULD BE SUBJECT TO RATIFICATION IN THE DISCRETION OF THE ACTING DIRECTOR.

THE WELL-RECOGNIZED GENERAL RULE IS THAT GOVERNMENTAL OFFICIALS WHO LACK ACTUAL AUTHORITY MAY BE GRANTED DE FACTO STATUS SO AS TO VALIDATE THEIR ACTIONS. IN OUR DECISION IN 56 COMP.GEN. 761 (1977) WE HELD THAT 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 OF POSITION. WE STATED THAT 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. 56 COMP.GEN. 761, 765-766. IT IS ALSO NOTEWORTHY THAT THE SUPREME COURT APPLIED THE DE FACTO RULE TO VALIDATE ACTIONS TAKEN BY THE ORIGINAL FEDERAL ELECTIONS COMMISSION NOTWITHSTANDING THE COURT'S RULING THAT THE APPOINTMENTS OF THE COMMISSIONERS WERE UNCONSTITUTIONAL. SEE BUCKLEY V. VALEO, 424 U.S. 1, 142 (1976).

FINALLY, EVEN IF DR. DEVINE CANNOT BE ACCORDED DE FACTO STATUS, ACTIONS HE TOOK UNDER THE DELEGATION WOULD BE SUBJECT TO RATIFICATION AT THE DISCRETION OF THE ACTING DIRECTOR. SEE E.G., 56 COMP.GEN. 761, 766; B-209946, JANUARY 12, 1983; B-150136, MAY 16, 1978, AND AUTHORITIES CITED.

QUESTION: WHAT ARE THE LEGAL REQUIREMENTS THAT DELEGATIONS OF AUTHORITY BE AVAILABLE TO THE PUBLIC WHEN THEY OCCUR?

ANSWER: THE OFFICE OF PERSONNEL MANAGEMENT CONCEDES THAT DELEGATIONS OF AUTHORITY ARE OFFICIAL AGENCY RECORDS WHICH ARE PUBLIC IN NATURE AND MUST BE MADE AVAILABLE UPON REQUEST. SEE MEMORANDUM OF JOSEPH A. MORRIS, GENERAL COUNSEL OF OPM, DATED MAY 3, 1985. OUR REVIEW OF THE APPLICABLE STATUTES INDICATES THAT SUCH RECORDS SHALL BE MADE PROMPTLY AVAILABLE TO THE PUBLIC.

THE FREEDOM OF INFORMATION ACT REQUIRES THAT AGENCIES MAKE AVAILABLE TO ANY PERSON ALL AGENCY RECORDS, UNDER THE FOLLOWING THREE CATEGORIES: (1) THOSE RECORDS WHICH MUST BE CURRENTLY PUBLISHED IN THE FEDERAL REGISTER; (2) THOSE WHICH MUST BE PROMPTLY PUBLISHED OR MADE PUBLICLY AVAILABLE AND INDEXED; AND (3) ALL OTHER RECORDS WHICH MUST BE PROMPTLY FURNISHED ON REQUEST. /1/ THE COURTS HAVE HELD THAT DELEGATIONS OF AUTHORITY NEED NOT BE PUBLISHED IN THE FEDERAL REGISTER, /2/ BUT WE BELIEVE, AND OPM APPARENTLY AGREES, THAT DELEGATIONS OF AUTHORITY MUST BE MADE AVAILABLE FOR PUBLIC INSPECTION AND COPYING. SEE 5 U.S.C. SEC. 552(A)(2) (1982).

IT WOULD APPEAR FROM THE RECORD BEFORE US THAT BOTH THE DELEGATION OF AUTHORITY AND THE AMENDMENT TO THE OPM LINE OF SUCCESSION WERE APPROVED ON MARCH 25, 1985, BUT WERE NOT AVAILABLE FOR PUBLIC INSPECTION UNTIL MAY 3, 1985, WHEN THE OPM GENERAL COUNSEL TRANSMITTED THOSE DOCUMENTS TO THE OGC INDEX/DIGEST OFFICE AT OPM (MEMORANDUM OF GENERAL COUNSEL DATED MAY 3, 1985). WE DO NOT KNOW WHETHER ANY PERSON OR PARTY REQUESTED COPIES OF THE DOCUMENTS FROM OPM PRIOR TO THIS DATE OR WHETHER SUCH PRODUCTION OF DOCUMENTS WAS REFUSED.

QUESTION: WHAT PROVISIONS OF THE HATCH ACT COVER THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR, ONCE SUCH A POSITION IS CREATED?

ANSWER: OUR OFFICE HAS NO JURISDICTION WITH REGARD TO HATCH ACT QUESTIONS SINCE INVESTIGATIONS AND ENFORCEMENT OF THE HATCH ACT ARE WITHIN THE JURISDICTION OF THE OFFICE OF SPECIAL COUNSEL TO THE MERIT SYSTEMS PROTECTION BOARD. 5 U.S.C. SEC. 1206(E) (1982). THEREFORE, OUR VIEWS ON THIS SUBJECT ARE ONLY ADVISORY. HOWEVER, IN OUR OPINION THE HATCH ACT APPLIES TO THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR.

THE HATCH ACT LIMITS THE POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES BY PROVIDING THAT A FEDERAL EMPLOYEE MAY NOT (1) USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH OR AFFECTING THE RESULT OF AN ELECTION OR (2) TAKE AN ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS. 5 U.S.C. SEC. 7324(A) (1982). THE LIST OF PERMISSIBLE AND PROHIBITED ACTIVITIES IS SET FORTH IN 5 C.F.R. PART 733. /3/

THE HATCH ACT PROVIDES THE FOLLOWING EXCLUSIONS FROM COVERAGE UNDER THE ACT:

-- AN EMPLOYEE PAID FROM APPROPRIATIONS FOR THE OFFICE OF THE PRESIDENT;

-- THE HEAD OR ASSISTANT HEAD OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT;

-- AN EMPLOYEE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, WHO DETERMINE POLICIES TO BE PURSUED BY THE UNITED STATES IN FOREIGN RELATIONS OR IN THE NATIONWIDE ADMINISTRATION OF FEDERAL LAWS; AND

-- CERTAIN EMPLOYEES OF THE DISTRICT OF COLUMBIA GOVERNMENT. 5 U.S.C. SEC. 7324(D).

IN ADDITION, FEDERAL EMPLOYEES RESIDING IN DESIGNATED AREAS SUCH AS LOCATIONS IN THE WASHINGTON METROPOLITAN AREA MAY PARTICIPATE IN LOCAL CAMPAIGNS AND ELECTIONS AS INDEPENDENT CANDIDATES OR ON BEHALF OF OR IN OPPOSITION TO INDEPENDENT CANDIDATES. 5 U.S.C. SEC. 7327 AND 5 C.F.R. SEC. 733.124.

THE POSITION OF EXECUTIVE ASSISTANT TO THE DIRECTOR OF OPM IS WITHIN THE SENIOR EXECUTIVE SERVICE AND APPEARS TO BE SUBJECT TO THE HATCH ACT. THE POSITION IS NOT THAT OF THE HEAD OR ASSISTANT HEAD OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT. SEE 5 U.S.C. SECS. 101, 102, LISTING THE EXECUTIVE AND MILITARY DEPARTMENTS. FURTHERMORE, THIS POSITION DOES NOT REQUIRE APPOINTMENT BY THE PRESIDENT OR CONFIRMATION BY THE SENATE. FINALLY, THERE IS NO SPECIFIC EXCLUSION FOR SES POSITIONS FROM COVERAGE UNDER THE HATCH ACT.

/1/ SEE 5 U.S.C. SEC. 552 (1982); FEDERAL OPEN MARKET COMMITTEE OF THE FEDERAL RESERVE SYSTEM V. MERRILL, 443 U.S. 340, 351-352 (1979).

/2/ HOGG V. UNITED STATES, 428 F.2D 274 (6TH CIR. 1970); CERT. DEN 401 U.S. 910 (1971); AND UNITED STATES V. FITCH OIL CO., 676 F.2D 673 (TEMP. EMER. CT. APP. 1982).

/3/ SEE ALSO POLITICAL ACTIVITY AND THE FEDERAL EMPLOYEE, OFFICE OF SPECIAL COUNSEL, U.S. MERIT SYSTEMS PROTECTION BOARD.