Vacancy Act Violation Letter-Department of Education, Office of the Assistant Secretary for Elementary and Secondary Education, August 19, 2004

B-302743: Aug 19, 2004

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Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 at the Department of Education. The Vacancies Reform Act established new requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate confirmation. The Act generally limits the period of time that such a position may be filled with an acting official to 210 days. Section 3349(b) of the Act requires the Comptroller General, upon a determination that an acting official is serving longer than the 210-day period and any applicable extensions, to report such finding to Congress, the President, and the Office of Personnel Management. As required by the Vacancies Reform Act, the Department of Education reported to us that a vacancy in the position of Assistant Secretary for Elementary and Secondary Education began on January 31, 2003, when Assistant Secretary Susan Neuman resigned. The position of Assistant Secretary for Elementary and Secondary Education requires Presidential appointment and Senate confirmation, and thus is subject to the Vacancies Reform Act.

The Department also reported to us that two officials, Eugene Hickok and Ronald J. Tomalis, served in an acting capacity until September 22, 2003, when the President nominated Raymond Simon to serve as Assistant Secretary for Elementary and Secondary Education. The Vacancies Reform Act generally limits the service of acting officials to 210 days from the date of the vacancy. In this instance, the 210-day period ended on August 29, 2003, but since the Senate was not in session on August 29, the Act extends the 210-day period to the day after the Senate next reconvenes, which was September 3, 2003. The Act also contains a spring-back provision that allows an acting official to resume performing the duties of the office once a nomination is submitted to the Senate for the period that such nomination is pending in the Senate. Thus, Mr. Tomalis could resume his service as acting Assistant Secretary on September 22, 2003, when the President submitted Mr. Simon's nomination to the Senate. However, Mr. Tomalis' service as acting Assistant Secretary for Elementary and Secondary Education from September 3, 2003, until September 22, 2003, was in violation of the time limitation in the Vacancies Reform Act.