Changed Interpretation of Requirements Related to First Assistants Under the Federal Vacancies Reform Act of 1998

GAO-02-272R: Dec 7, 2001

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The Federal Vacancies Reform Act of 1998 establishes new requirements for the temporary filling of vacant executive agency positions that require presidential appointment and Senate (PAS) confirmation. The act provides that only certain classes of individuals may serve as acting officers and that, in the absence of a designation by the President or another qualified individual, a first assistant of a vacant office temporarily shall perform the duties of the office. The Department of Justice has recently changed its interpretation of the circumstances under which a first assistant may serve on an acting basis. The Vacancies Reform Act provides that when PAS positions covered by the act become vacant, "the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations" established under the act. The act also provides that the first assistant is not eligible to serve as the acting officer if, during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, that person did not serve in the position of first assistant of such officer or served in the position of first assistant to such officer for less than 90 days. The first assistant is also not eligible to serve if the President submits a nomination of such person to the Senate for appointment to such office. Justice has revised its initial guidance to agencies on the provision requiring a person to be in the first assistant position before the vacancy occurred to become acting officer. Justice concluded that someone who becomes first assistant after a vacancy in a PAS position can temporarily serve in that job on an acting basis as long as that person is not nominated for the vacant position.