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entitled 'Federal Vacancies Reform Act: Key Elements for Agency 
Procedures for Complying with the Act' which was released on July 15, 
2003.

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Report to the Chairman, Committee on Governmental Affairs, U.S. Senate:

July 2003:

Federal Vacancies Reform Act:

Key Elements for Agency Procedures for Complying with the Act:

GAO-03-806:

GAO Highlights:

Highlights of GAO-03-806, a report to the Chairman, Committee on 
Governmental Affairs, U. S. Senate

Why GAO Did This Study:

The Federal Vacancies Reform Act of 1998 sets requirements for 
reporting to Congress and the Comptroller General actions related to 
Presidential Appointment with Senate Confirmation (PAS) positions as 
well as the qualifications for and term limits on acting PAS officers. 
GAO had reviewed agencies’ performance in implementing the Vacancies 
Reform Act and found substantial problems with their reporting 
timeliness and compliance with term limits for acting officials. In 
this current effort, GAO looked at agencies’ procedures to identify 
approaches that could be applied across the government to help assure 
effective implementation of the act.

What GAO Found:

The six departments GAO reviewed had Vacancies Reform Act compliance 
systems that varied. Regardless of how the agencies had assigned 
responsibilities, GAO identified five key elements essential to 
Vacancies Reform Act compliance. 

One critical element is that agencies identify the specific components 
or branches that will be responsible for Vacancies Reform Act 
requirements. Agencies should also specify the functions that these 
key units perform and how they interact with other key components to 
achieve the overall Vacancies Reform Act compliance objective.

A second critical element is that staff in the various components that 
play a role in Vacancies Reform Act compliance must frequently 
communicate with each other. There may be several agency components 
involved in the compliance process and one component may have critical 
information, such as the occurrence of a vacancy, that the component 
responsible for reporting this event to Congress needs to know. 
Frequent communication helps ensure that information is shared and 
acted on in a timely manner.

A third critical element is that the agency maintains an up-to-date 
list of the first assistants for each of its PAS positions. When a 
vacancy occurs the Vacancies Reform Act provides that the first 
assistant will serve as the acting official in the absence of a 
designation by the President. Having an up-to-date list helps ensure 
timely placement, continuity of operations, and compliance with 
qualifications criteria for acting PAS officials prescribed by the 
Vacancies Reform Act.

A fourth critical element is that agencies document their Vacancies 
Reform Act procedures. Documenting compliance procedures provides 
agencies a means of ensuring that new staff assigned to compliance 
tasks will have guidance on how to perform these tasks. This will also 
help ensure a consistent application of the process, reduce the 
learning period required, and provide for a better continuity of 
effort. 

Finally, agencies should assign Vacancies Reform Act responsibilities 
to career employees. This would also help to provide continuity to the 
agencies’ compliance activities, because, typically, political 
employees, who may be assigned this function, would not be very 
familiar with the act’s requirements when they report for duty. This 
can lead to delays or errors in Vacancies Reform Act compliance. 
Agency officials cited a number of examples where it took replacement 
staff a while to get up to speed which resulted in long delays in 
reporting vacancy events.  

What GAO Recommends: 

GAO recommends that the Office of Presidential Personnel encourage 
federal agencies to implement the five key elements for Vacancies 
Reform Act compliance that GAO identified. 

The Office of Counsel to the President commented on the report and 
said he would prefer that GAO make the recommendation to all agencies 
with PAS positions covered by the Vacancies Reform Act rather than to 
the Office of Presidential Personnel.

www.gao.gov/cgi-bin/getrpt?GAO-03-806.

To view the full report, including the scope and methodology, click on 
the link above. For more information, contact Victor Rezendes at (202) 
512-6806 or rezendesv@gao.gov.

[End of section]

Letter July 15, 2003:

The Honorable Susan M. Collins 
Chairman 
Committee on Governmental Affairs 
United States Senate:

Dear Chairman Collins:

The Federal Vacancies Reform Act of 1998[Footnote 1] sets requirements 
for reporting to Congress and the Comptroller General actions related 
to vacancies in Presidential Appointment with Senate Confirmation (PAS) 
positions as well as standards for who can be named to act in these 
positions when they are vacant and how long acting officers can serve. 
In response to an August 1999 request from Senator Fred Thompson, then 
Chairman of the Committee on Governmental Affairs, we issued a series 
of reports that examined agencies' performance in implementing the 
Vacancies Reform Act. We found substantial lags between the times a 
reportable event, such as the naming of an acting officer, occurred and 
the time it was reported, as well as events that were not reported at 
all. We also identified instances where acting officers exceeded the 
legally allowed maximum period for serving in that capacity.[Footnote 
2] In this effort, we agreed with Senator Thompson's office to look at 
agencies' procedures for implementing the act's requirements and 
identify any approaches that facilitate prompt and accurate compliance 
with the act's provisions that could be applied across the government.

The key requirements the act placed on agencies are to (1) report 
immediately to Congress and the Comptroller General any vacancy in a 
PAS position, the name of an individual serving in an acting capacity 
in a PAS position, the date the vacancy occurred, and the name and date 
of a nomination for a PAS position and the date of rejection, 
withdrawal, or return of any nomination, (2) ensure that persons named 
to serve in acting capacities in PAS positions meet the eligibility 
requirements enumerated in the act, and (3) ensure that acting PAS 
officers do not exceed the limits imposed on the time they can serve. 
Our objective was to identify key elements of effective implementation 
of the Vacancies Reform Act.

To select agencies to review, we used data on how long it took to 
report PAS-related events to us. We selected six agencies that had 
numerous reportable events and relatively short periods, in at least 
some cases, between events occurring and reporting on the events. We 
selected the Departments of Commerce, Education, Energy, Health and 
Human Services, Transportation, and the Treasury. We visited each 
agency and met with the officials involved in implementing the act and 
discussed their procedures. We obtained, where available, documentation 
about the steps the agencies used. We combined the information obtained 
at the agencies to look for common elements that seem to be critical to 
effective implementation of the Vacancies Reform Act. Our work was 
performed from January 2002 through May 2003 in accordance with 
generally accepted government auditing standards.

Results in Brief:

The reviewed agencies' Vacancies Reform Act compliance systems varied. 
We found variation in the components within each agency assigned 
primary responsibility for Vacancies Reform Act functions and variation 
in the specific tasks performed by the responsible components to meet 
the requirements of the act. Regardless of how the agencies had 
assigned responsibilities, we identified five critical elements that 
are essential to Vacancies Reform Act compliance.

The first critical element is for agencies to clearly identify the 
component responsible for each requirement under the act and the other 
components that assist by providing information. All the agencies that 
we visited agreed that this was important. Unless everyone is aware of 
who does what, it is easy to assume that another component or staff 
person will handle a requirement resulting in tasks being delayed or 
going undone.

A second critical element, which is a corollary to the first one, is 
that staff in the various components that play a role in Vacancies 
Reform Act compliance frequently communicate with each other. Agencies 
cited a number of examples where the first component or person to learn 
about a reportable event was not the one responsible for reporting the 
event. Thus, it is essential to timely reporting that information is 
shared in a timely manner. Agencies cited mechanisms like frequent 
telephone contacts or weekly meetings of involved staff as ways to 
ensure that the right people are informed about events.

A third critical element, which is related to ensuring that only 
qualified people are made acting officers, is that agencies have up-to-
date lists of the first assistants to each PAS position. The Vacancies 
Reform Act specifies that the first assistant becomes the acting 
officer unless the President directs someone else who meets one of the 
listed qualifications to serve in that role. Normally, first assistants 
become the acting officer, and without an up-to-date list, delays in 
naming an acting officer can occur and the possibility exists that an 
ineligible person could be designated.

A fourth critical element is that agencies document their Vacancies 
Reform Act procedures. Although none of the six agencies had done so 
when we first visited them, all agreed that documenting procedures 
would help agencies ensure compliance during periods of transition. For 
example, when staff responsible for Vacancies Reform Act functions 
leave or are reassigned, written procedures will let replacement staff 
know it is their responsibility to perform the functions and will 
represent guidelines on how to meet the responsibility. The officials 
at all the agencies we visited agreed on the importance of documenting 
their procedures and cited cases where a lack of such documentation had 
adversely affected compliance performance. By the end of our fieldwork, 
all six agencies had begun efforts and made progress in documenting 
their procedures.

Finally, agencies should assign Vacancies Reform Act responsibilities 
to career employees. This would help provide continuity to the 
agencies' compliance activities. Typically, political employees would 
not be very familiar with the act's requirements when they report for 
duty and they have a number of other duties that constitute their 
primary focus and interest. This can lead to delays or errors in 
Vacancies Reform Act compliance. Moreover, political employees tend to 
turn over more rapidly than career employees, thus resulting in less 
continuity. The agencies we visited had a number of examples in which 
political employees, such as White House liaisons, responsible for 
certain Vacancies Reform Act requirements, left and it took their 
replacements a while to get up to speed because of the press of other 
matters with, for example, long delays in reporting vacancy events 
resulting. This was especially true at the change of administration 
when many vacancy events occur and those without Vacancies Reform Act 
experience took over responsibility for compliance. Problems were 
compounded by the lack of written procedures, as discussed above, which 
meant new arrivals had little or no information from which to start.

We recommend that the Office of Presidential Personnel, which has 
responsibilities related to PAS positions governmentwide, encourage all 
federal agencies to ensure that their Vacancies Reform Act compliance 
standard operating procedures include the key elements identified in 
this report. The Office of Counsel to the President commented on the 
report and said that the five key elements for effective implementation 
of the Vacancies Reform Act were reasonable efforts for agencies to 
undertake but that it would prefer that we address the recommendation 
to all the agencies with PAS positions covered by the act. We continue 
to believe that it is appropriate for the Office of Presidential 
Personnel to encourage agencies to implement the key elements.

Background:

Under the Vacancies Reform Act, if a presidential appointee covered by 
the act dies, resigns, or is otherwise unable to perform the functions 
and duties of the office, the requirements of the act must be followed. 
For covered PAS vacancies,[Footnote 3] the act, among other things,

* requires agencies to immediately report to the Senate, the House of 
Representatives, and the Comptroller General changes in PAS positions, 
including a vacancy and the date it occurs, the name of any person 
serving in an acting capacity and the date such service began, the name 
of any person nominated to fill a vacancy and the date such nomination 
is submitted to the Senate, and any rejection, withdrawal, or return of 
a nomination and the related date;

* specifies who may serve as acting officer; and 

* imposes a time limit on how long vacancies can be filled by acting 
officers.

The act specifies four classes of individuals who may serve in an 
acting capacity.

* The first assistant to the office of the officer who has left the 
position vacant temporarily performs the functions and duties of the 
PAS position in an acting capacity subject to the act's time 
limitations unless the President directs someone else to do so under 
one of the authorities discussed below.

* A PAS official may serve as an acting official in another PAS 
position at the direction of the President.

* The President may designate a senior agency official to serve as the 
acting official for a vacant PAS position. The senior agency official 
must be from the same agency in which the vacancy occurs and the 
official's rate of pay must have been equal to or greater than the 
minimum level of GS-15 for at least 90 days during the year preceding 
the vacancy.

* For PAS positions that have limited terms of service (such as those 
at independent commissions), officers who are nominated by the 
President for additional terms to the same offices without breaks in 
service may continue to serve temporarily in those positions in acting 
capacities.

In addition, the Vacancies Reform Act limits the service of acting 
officials to 210 days beginning on the date the vacancy occurred. At 
the end of the time limit, no one may serve in the position on an 
acting basis. The Vacancies Reform Act extends or resets the 210-day 
period under certain circumstances, such as suspending the time limit 
when a nomination is pending before the Senate and extending the limit 
by 90 days with respect to any vacancy existing during the 60-day 
period beginning at the start of a new administration. The Vacancies 
Reform Act also requires us to inform specified congressional 
committees, the President, and the Office of Personnel Management if an 
acting officer has served longer than 210 days.

In fulfilling Vacancies Reform Act responsibilities, agencies should 
make managers aware of these statutory requirements and assign staff to 
ensure that the requirements are followed and reporting is completed in 
a timely manner. Hence, along with their responsibility to timely 
report changes in PAS positions to Congress and the Comptroller 
General, it is incumbent upon agencies to establish effective processes 
that ensure that persons serving temporarily in PAS positions meet the 
statutory qualifications prescribed by the act and that they do not 
exceed the act's time limit for the service of acting PAS officials.

The Vacancies Reform Act was passed to ensure a clear understanding of 
what is to be done when PAS positions become vacant. These positions 
constitute the highest level of staff in the federal executive branch, 
including the secretaries for cabinet-level departments and their 
deputy and assistant secretaries. Because most of these executives 
typically have relatively short tenures, positions often are vacated 
during a Presidential term of office. At a change of administration, 
virtually all PAS positions are vacated.

After the passage of the Vacancies Reform Act, we together with the 
executive branch developed a form, Submission Under the Federal 
Vacancies Reform Act, which the White House instructed agencies to use 
beginning in July 1999 to notify Congress and GAO of the reportable 
events under the Vacancies Reform Act. We also developed a computerized 
tracking system to collect and analyze data submitted by agencies. We 
receive agencies' reports and enter the data in our tracking system.

The White House's Office of Presidential Personnel (OPP) has 
traditionally assumed the role of recruiting candidates to fill 
executive appointments. OPP collaborates with the Counsel to the 
President to issue policy memorandums to guide agencies in fulfilling 
Vacancies Reform Act requirements. For instance, in March 2001, the 
Counsel to the President sent a memorandum to federal executive branch 
departments and agencies that provided guidance that streamlined the 
notification process by requiring that agencies send notifications 
directly to Congress and GAO. Previously, agencies were required to 
send notifications through an indirect route that began with submission 
to OPP, which then forwarded copies of the submission to the Office of 
Management and Budget. This streamlined process was expected to be more 
efficient.

Our May 2001 report found that agencies had not promptly reported 
vacancies and acting officials to Congress and us. In fact, of 90 
reportable events among 21 agencies during a nearly 2-year period, 19 
percent of vacancies and 24 percent of acting officials had not been 
reported at all. Moreover, for about half the instances that were 
reported to GAO and entered into our tracking system, notification was 
not received until over 4 weeks after the date of occurrence. Thus, it 
was apparent that agencies had lax compliance with the reporting 
requirements of the act.

In addition, we identified five instances where officials exceeded the 
act's time limit. In May 2001, we reported that acting officials at 
four agencies had exceeded the act's 210-day time limit. We also 
reported in March 2002 that an acting general counsel at a federal 
department had exceeded the time limit. Also, in a November 2001 letter 
from our General Counsel to the Counsel to the President, we alerted 
the White House that our records indicated the time limits for some 19 
acting PAS officials would expire within 1 week and appropriate action 
should be taken by affected agencies to ensure that the time limit was 
not violated. Subsequent actions were taken to ensure no violations 
occurred.

Because our reports concerning the timeliness of agency reporting and 
our finding that a number of acting officials had exceeded the time 
limit suggest that there were problems with the adequacy of the 
procedures that agencies use to comply with the act, Senator Thompson, 
then Chairman of the Senate Committee on Governmental Affairs, asked us 
to look for ways to facilitate agency compliance. We looked for 
effective ways that agencies could implement the act's requirements by 
both identifying agency procedures already in use and additional 
procedures that could address problems agencies were having.

Critical Elements for an Effective Vacancies Reform Act Compliance 
System:

The structure and particulars of Vacancies Reform Act compliance 
processes varied among the agencies that we visited, as did specific 
steps taken to ensure that the agencies adhered to the basic 
requirements of the act. However, we identified certain critical 
elements essential to Vacancies Reform Act compliance that all agencies 
should find useful. These elements are that, in developing and 
implementing procedures, agencies should (1) identify and designate the 
agency components that should take the lead responsibility for 
performing each Vacancies Reform Act requirement, (2) have frequent 
communication among key role players, (3) maintain up-to-date lists of 
first assistants, (4) document agency procedures, and (5) assign 
responsibility for Vacancies Reform Act compliance to senior career 
officials to help ensure continuity.

Identify Agency Components with Vacancies Reform Act Implementation 
Roles:

To establish roles and responsibilities among the various people 
involved with Vacancies Reform Act compliance functions, agencies 
should clearly identify the components that are responsible for 
compliance with each requirement of the act and the other components 
that assist by providing information. The individual positions in each 
of the components whose incumbents are responsible for Vacancies Reform 
Act functions should also be identified. If an agency does not identify 
specific components that are responsible for specific compliance 
efforts, it risks that tasks will not be completed. For example, one 
component of an agency could, erroneously, assume that another 
component is responsible for fulfilling a Vacancy Reform Act 
requirement while that component assumes that the other is responsible. 
As a result, neither component performs the function so it does not get 
done or is not timely completed.

The six agencies in our survey all provided evidence that they 
appreciated the importance of designating lead components for each 
function because each agency had in effect done so. Agencies described 
how assigning responsibility for Vacancies Reform Act compliance to 
specific components helped prevent problems from arising. For example, 
at the Department of Transportation, an official in its Office of 
General Counsel had responsibility for ensuring compliance with all 
requirements under the act. This official developed and transmitted 
reports of changes in PAS positions to Congress and us and was 
responsible for ensuring that the qualifications and time limit 
requirements for acting PAS officials were met. Other staff, such as 
those in the agency's Personnel and Legislative Affairs offices, 
assisted this individual by sharing information, as it became 
available, on PAS position changes.

Another example was found at the Department of Energy where specified 
staff in the Executive Resources Office were responsible for reporting 
changes in PAS positions, and a designated attorney in Energy's Office 
of General Counsel advised them about the acting officers' 
qualifications and kept a log of when time limits would expire.

Role Players Should Regularly Communicate with Each Other:

Another critical element is that staff in the various components that 
play a role in Vacancies Reform Act compliance communicate frequently 
with each other. For example, because the individual who is responsible 
for reporting the event (or tracking acting officers' time limits) may 
not be the first to learn about a reportable event (or one that affects 
the time limit on an acting officer), communication is essential to 
ensure compliance.

We learned that there were often variations in which an agency official 
is the first to become aware of a reportable event. This information 
must be quickly communicated to the responsible component and to the 
specific staff member who is to report the event for timely reporting. 
Officials at agencies described how constant communication had been an 
effective tool in achieving compliance objectives. For example, at 
Energy, to ensure that acting PAS officers do not exceed the time 
limit, an Office of General Counsel official said that she establishes 
the time limit for each acting PAS officer when he or she is initially 
designated. The staff involved in Vacancies Reform Act functions meet 
weekly. During the meetings, events that affect the time limit come up 
and the Office of General Counsel official adjusts the limit 
accordingly. Also, reportable events are discussed at the meeting, 
which helps ensure that they get reported quickly.

At Transportation, the key official responsible for Vacancies Reform 
Act compliance relies on different sources to inform her of events that 
would trigger the need to report. She said she is sometimes informed of 
nominations by staff in the Office of the Secretary or by contacts 
within the White House. She said a Human Resources Specialist who works 
with the agency's PAS staff first informs her of PAS vacancies. She 
said that these people routinely call her about reportable events. 
Otherwise, timely reporting would not be possible.

Agency Officials Should Prepare First Assistant Lists:

A third critical element is that the agency prepare and maintain a list 
of the first assistants for each of its PAS positions. Under the 
Vacancies Reform Act, the first assistant is automatically eligible to 
serve in a vacant PAS position in an acting capacity. The first 
assistant is usually a deputy who can fill in when a confirmed official 
vacates a PAS position. However, the first assistant to a PAS official 
must be clearly established for this provision to be properly 
implemented. When a position has been designated as a first assistant, 
this can ensure the timely securing of a qualified person as an acting 
official to a PAS position and helps provide for the agency's 
continuity of operations.

For example, at Transportation the key Vacancies Reform Act compliance 
official said ensuring that only qualified persons are appointed to 
serve as acting PAS officers is not a big concern because the 
department has made a conscious effort to ensure that a first assistant 
has been designated for each PAS position. The Department of the 
Treasury codified its first assistant designation procedures in the 
Code of Federal Regulations. In 31 C.F.R. 18.1, Treasury's regulation 
states that the deputy to the PAS officer, or the principle deputy when 
there is more than one, shall be the first assistant.

Without a list of first assistants, it might not be clear who is the 
first assistant to a PAS position. For example, at the Department of 
Commerce, an official said he strongly believes that a first assistant 
list is essential to filling vacancies expediently. This official said 
he remembered Commerce was in a quandary when there were three deputies 
for a particular vacant PAS position, and the agency was unsure which 
should serve as the acting official. He said that had there been a 
first assistant list, there would have been no doubt or confusion 
because one of these individuals would have been predesignated as the 
first assistant.

Following our discussion about written procedures, on July 9, 2002, 
Commerce's Office of General Counsel sent a policy memorandum to the 
Assistant Secretary for Legislative and International Affairs, who had 
overall oversight of Vacancies Reform Act compliance, for distribution 
to other key compliance role players in the agency. The memorandum 
listed procedures for complying with the act's requirements, including 
instructions on selecting persons to serve in acting PAS positions and 
the related reporting requirement for this event. This guidance 
provides for selecting the designated first assistant automatically and 
immediately for a vacant position without the need for further action 
by the department. This guidance lists all of Commerce's 26 PAS 
positions and 20 accompanying first assistant positions. It adds that 
in instances when there are no first assistants (6 positions), the 
President will need to designate acting officers. The guidance also 
says that Commerce's Office of White House Liaison is to report to 
Congress and us the designation of an acting officer immediately. Such 
guidance provides clear instructions on how staff are to use the first 
assistant register to designate acting officers and provides a 
mechanism for immediate reporting of events.

Agencies Should Document Implementation Procedures:

A fourth critical element we identified is the need for agencies to 
document their Vacancies Reform Act procedures. By documenting 
procedures, agencies can ensure that when staff responsible for 
Vacancies Reform Act functions leave or are reassigned, replacement 
staff will know their responsibilities and have guidelines on how to 
meet their responsibilities. When we began our work, none of the 
agencies we visited had documented procedures but all agreed that doing 
so would be a good idea, and agencies had either completed or begun to 
do so when we finished our work.

An official at the Department of Health and Human Services (HHS) said 
the person responsible for Vacancies Reform Act compliance under the 
previous administration had produced detailed procedures that he 
followed to ensure that his work complied with the Vacancies Reform 
Act. She said that this person's documented procedures were not a part 
of the agency's formal operating procedures. Instead they were this 
individual's personal notes. She also said that she was not aware of 
the specific steps outlined in the procedures. The agency had been 
considerably more timely in reporting events before the person left. 
After he left, the average time to report events increased by more than 
2 weeks. She said that she had been briefed on compliance functions by 
an agency official but had not been provided any written guidance and 
believed that she could have learned required tasks more quickly had 
she had documented procedures to follow. This case demonstrates how a 
period of learning might result in delays in reporting events and 
reinforces the importance of having formal documented procedures.

As previously mentioned, Commerce officials issued a policy memorandum 
to provide guidance to staff who have key roles in Vacancies Reform Act 
compliance. This guidance identifies the specific Commerce components 
that play roles in compliance and outlines for staff in these 
components how to perform required tasks. This guidance makes officials 
aware of how information is to be shared and transmitted to staff that 
are to act on completing Vacancies Reform Act requirements.

The guidance also provides background information and discussion that 
provides a sense of why tasks are to be performed. For instance, it 
states "The act requires that notification is to be provided 
immediately upon the occurrence of each of the triggering events." It 
lists each triggering event, including vacancies, selections of acting 
officials, and nominations; provides detailed information on which 
agency component is likely to be first informed of a specific event; 
and asks that other components cooperate by sharing and transmitting 
this information to the Commerce unit responsible for reporting it. 
This guidance also provides helpful information on complying with the 
act's qualifications criteria for acting officials and the time limit 
for service by acting officials. By documenting its Vacancies Reform 
Act compliance procedures, Commerce has provided a tool for use by new 
staff and has virtually eliminated the possibility of confusion by 
components about their responsibilities in this area.

Treasury officials have also made progress in developing comprehensive 
documented procedures that specifically describe the agency's 
procedures for complying with each key requirement of the Vacancies 
Reform Act. Treasury has segmented its procedures into two sections æ 
reporting and tracking. Under its reporting section, its procedures 
begin with background information that states the purpose and 
objectives of the Vacancies Reform Act, which provides a perspective to 
staff on why certain tasks are required. It goes on to list the 
specific Treasury offices and their roles in notifying each other and 
reporting to Congress and us information on PAS vacancies, selections 
of acting PAS officials, and nominations. Reporting section procedures 
also require that, before Vacancies Reform Act reports are sent to 
Congress and us, the reports undergo a managerial review for compliance 
with the Vacancies Reform Act's requirements. The procedures also 
include a requirement that the agency's legal staff review selections 
of acting PAS officials to ensure that they meet the eligibility 
criteria contained in the Vacancies Reform Act.

In its tracking section, Treasury's procedures contain steps that staff 
should follow to ensure that acting PAS officials do not exceed the 
act's 210-day time limit. The procedures specify that a designated 
office will maintain a tickler system that will, essentially, establish 
dates when an acting officer will reach the time limit, establish a 
provision for adjusting the time limit when events occur that require 
adjustment, and allow for adequate prenotification that a time limit 
threshold is nearing.

Agencies Should Assign the Act's Implementation Responsibilities to 
Senior Career Employees:

A final critical element provides for continuity for Vacancies Reform 
Act compliance functions by placing the responsibility for them with 
career employees. As currently practiced, newly appointed political 
employees sometimes assume the responsibility for Vacancies Reform Act 
compliance at the change of administrations and periodically during an 
administration. Because they are new to this function and not 
experienced with its requirements, they may spend a substantial period 
learning what must be done. Moreover, they have other responsibilities 
that constitute their primary focus. This can contribute, for example, 
to untimely reporting of events as incoming staff learn their 
responsibilities and how to fulfill them. Assigning senior career 
employees the responsibility for Vacancies Reform Act compliance could 
help ensure continuity because turnover is typically much lower with 
career employees. This should in turn facilitate the agencies' efforts 
to better achieve timely Vacancies Reform Act reporting as well as 
provide greater assurance that agencies comply with requirements for 
acting officials, which are especially important at the change of 
administrations.

The need to assign career staff to certain tasks that require 
institutional knowledge and continuity of effort was included in 
governmentwide management reforms proposed to address long-standing 
management problems in the federal government.[Footnote 4] In September 
2002 we convened a panel of current and recent executive branch 
executives and combined their ideas on alternative executive branch 
management methods that might address the loss of institutional 
knowledge required to perform certain agency tasks. We issued a report 
on the principle conclusions reached by the panel, and the need to 
institutionalize accountability for addressing management issues and 
leading transformational change was one of the panel's chief 
observations. The panel asserted that in the federal government, the 
frequent turnover of the political leadership has often made it 
difficult to obtain the sustained and inspired attention required to 
make needed changes. This concern also applies to Vacancies Reform Act 
compliance, and designating a senior career employee as responsible 
would lessen concern.

The Department of Education has given Vacancies Reform Act compliance 
responsibility to political employees responsible for other duties 
associated with White House liaison offices, such as serving as the 
person who interfaces with the White House. Reporting had not been 
timely. For instance, the average time to report vacancies for 
Education was over 150 days because the vacancies that occurred at the 
change of administration in January 2001 were not reported until June 
of that year.

Commerce officials offer an example of how an experienced career staff 
person can effectively implement Vacancies Reform Act compliance duties 
and reduce the chance of disruptions attributable to changes in 
administrations. The Commerce career official who has key Vacancies 
Reform Act compliance responsibilities reports to a political employee 
who has overall responsibility for this function but who, because of 
her need to focus on other matters, relies on the career employee to 
perform Vacancies Reform Act compliance duties. The career employee 
said she has been at the agency for an extended period and has been 
responsible for reporting Vacancies Reform Act events since the act's 
effective date in 1998.

Conclusions:

Our past reviews of agencies' performance in implementing the Vacancies 
Reform Act disclosed that agencies, generally, had not been promptly 
meeting the act's reporting requirements. We also found instances in 
which agencies had violated the act's time limit requirements. As a 
result, we undertook this review to identify how agencies could better 
ensure compliance. We found five critical elements that we believe 
would help agencies effectively implement the Vacancies Reform Act. We 
believe that by incorporating these measures in their compliance 
programs, agencies' overall performance should improve. We are 
suggesting that agencies:

* identify the agency components and the specific roles they play in 
fulfilling Vacancies Reform Act functions,

* engage in frequent communication among key staff so that information 
that might be needed for prompt reporting is shared,

* maintain up-to-date first assistant lists to help ensure that 
qualified individuals are selected as acting officials and that the 
selections are reported expeditiously,

* document their compliance procedures so that newly assigned staff are 
aware of required tasks and a measure of continuity of effort is 
achieved, and:

* assign senior career officials responsibility for Vacancies Reform 
Act compliance to provide for more continuity of effort and sustain a 
level of needed institutional knowledge.

Recommendation for Executive Action:

We recommend that the Director, Office of Presidential Personnel (OPP), 
encourage all agencies in the executive branch to ensure that their 
Vacancies Reform Act procedures include the critical elements 
identified in this report.

Agency Comments and Our Evaluation:

On June 20, 2003, the Associate Counsel to the President commented on a 
draft of this report. He said that it would be preferable for us to 
address our recommendation to each federal agency that has PAS 
positions covered by the Vacancies Reform Act because the Bush 
administration has determined that each covered agency should assume 
responsibility for compliance with the act. The Associate Counsel cited 
as the source for this determination the March 20, 2001, memorandum 
from the Counsel to the President to all executive departments and 
agencies, which among other things, removed OPP from the Vacancies 
Reform Act reporting process.

We discussed the March 20, 2001 memorandum in this report and cited it 
in our earlier work as a good step toward improving the timeliness of 
reporting events covered by the Vacancies Reform Act. Our 
recommendation is not intended to bring OPP directly into the 
compliance process for the Vacancies Reform Act. Rather it is intended 
to use the office and its role as a focus point for presidential 
appointments to emphasize the importance of agencies' compliance. That 
is why we used the phrase "encourage all agencies" in the 
recommendation rather than a phrase such as "require all agencies.":

HHS said that it agreed with the report's findings and that it believes 
the five key elements will enable executive agencies to maintain 
accurate information and provide timely notification of events covered 
by the Vacancies Reform Act. HHS listed actions taken or under way to 
ensure that its procedures encompass all five key elements.

The Director, Office of White House Liaison at the Department of 
Education commented the Department concurred with four of the five 
elements but disagreed with the element about assigning Vacancies 
Reform Act compliance responsibilities to a senior career employee. 
Education said that it believes that the White House liaison, who 
currently has overall responsibility, is in the best position to meet 
these responsibilities in a timely manner. The department also said 
that it believes that implementing the fourth key element--having 
written compliance procedures--would meet the intent of the career 
employee element by providing for continuity. As we pointed out, 
political appointees have other duties that constitute their primary 
focus, and this is another reason it is important to have career 
employees responsible for Vacancies Reform Act functions. However, it 
is possible to have an effective compliance effort with a political 
appointee with overall responsibility and a career employee with day-
to-day and operational responsibility. As discussed above, this is how 
compliance is handled at the Department of Commerce.

The Office of the Counsel to the President and the Departments of 
Education, Transportation, and the Treasury provided technical 
comments, which we incorporated in the report where appropriate. The 
Departments of Commerce and Energy did not comment within the time 
provided.

We are sending copies of this report to the Counsel to the President; 
the Director, Office of Presidential Personnel; and the heads of all 
executive departments and agencies and their General Counsels. We are 
also sending copies to other interested committees and parties and will 
make copies available to others on request. In addition, the report 
will be available at no charge on our Web site at http://www.gao.gov.

If you have any questions about this report, please call me at (202) 
512-6806. Key contributors to this report were Tom Dowdal, Jeff Dawson, 
and Bruce Goddard.

Sincerely yours,

Signed by:

Victor S. Rezendes 
Managing Director, Strategic Issues:

(450097):

FOOTNOTES

[1] 5 U.S.C. 3345-3349d. 

[2] For example, see U.S General Accounting Office, Violations of the 
210-Day Limit Imposed by the Vacancies Reform Act, B-286265, Sept. 15, 
2000; Implementation of the Federal Vacancies Reform Act of 1998, GAO/
GGD-00-210R (Washington, D.C.: Sept. 29, 2000); Eligibility Criteria 
for Individuals to Temporarily Fill Vacant Positions Under the Federal 
Vacancies Reform Act of 1998, GAO-01-468R (Washington, D.C.: Feb. 23, 
2001); and Presidential Appointments: Agencies' Compliance With 
Provisions of the Federal Vacancies Reform Act of 1998, GAO-01-701 
(Washington, D.C.: May 31, 2001).

[3] Some PAS positions are not covered by the act. For example, the act 
does not apply to U.S. attorneys and ambassadors or to members of 
independent commissions, such as the Securities and Exchange 
Commission.

[4] See U.S. General Accounting Office, Highlights of a GAO Roundtable: 
The Chief Operating Officer Concept: A Potential Strategy to Address 
Federal Governance Challenges, GAO-03-192SP (Washington, D.C.: Oct. 4, 
2002).

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