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Should federal employees care about the Vacancies Act?

On Behalf of | Feb 9, 2023 | Federal Employment Law

The Government Accountability Office (GAO) recently argued that five Biden appointees were serving illegally as “acting” officials.

As the Government Executive noted, this marks a point of disagreement between the GAO and the Department of Justice (DOJ), which argued that the officials were serving properly. But while these agencies disagree whether the officials should be serving, the real question may be: How might this issue affect the thousands of employees who serve in the affected agencies?

Did the Vacancies Act fail to anticipate modern politics?

This is not the first time the GAO has argued that “acting” officials were not installed lawfully. The issue has come up in previous administrations, as well. And just as the GAO has previously raised the issue, the DOJ has previously contested the GAO’s interpretation of the underlying law, the Federal Vacancies Reform Act.

Designed to ensure that government agencies run smoothly under proper leadership, the Vacancies Act introduces two key limits on “acting” officers.

The first of these limits identifies which people can assume the duties of an acting officer:

  • The first assistant to the position
  • A Presidential appointee

The Vacancies Act also sets three different time limits on the role of “acting” officer. These time limits depend on the situation:

  • 210 days from the beginning of the date the position becomes vacant
  • If the vacancy exists on a new President’s inauguration or opens within 60 days of the inauguration, the 210-day time limit begins either 90 days after the inauguration or 90 days after the position becomes vacant, whichever is later
  • The third limit says acting officials can serve while their first or second nomination for the position is pending Senate approval

Everyone generally understands that these different time periods run simultaneously. However, the current point of contention is whether these time limits reset when a new President takes office. The GAO says they don’t. The DOJ disagrees and believes, therefore, that the clock has not yet run out on Biden’s acting officials. According to the DOJ’s interpretation, the officials are still serving lawfully.

Notably, these time limits may have failed to anticipate the current political climate. These days, the Senate struggles to accomplish anything, including the approval of presidential appointees. This means we see more and more agency heads in “acting” positions, rather than serving with full Senate approval.

The trickle-down consequences of acting officials

In many ways, the GAO’s report and its disagreement with the DOJ feel somewhat toothless. After all, the GAO has no authority to act directly against Biden’s acting officials. It can only report its findings to Congress. From that point, Congress can remove the officials, or people can file lawsuits and try to invalidate the decisions made by anyone found acting in violation of the law.

The other reason the GAO’s findings may prove somewhat toothless is that it only seems concerned by acting officials with “acting” in the title. As the Government Executive noted, ICE worked its way into compliance by taking its “acting director” and changing the position to “senior official performing the duties of director.” Other agencies were also able to appease GAO by renaming the positions of their acting officials.

Nonetheless, the concerns about acting officials lead to very real concerns for the agencies they serve. Without permanent leadership, agencies suffer:

  • Workforce morale drops
  • Agencies lack a full voice in key conversations
  • Leaders may not be able to establish clear, long-term projects and initiatives
  • Agencies may not benefit from forward-looking training and hiring practices

Everyone wants their work to be meaningful. No one wants to feel they’re just going through the motions. But that’s how agencies may function without permanent leadership. They often just tread water. However, when time and circumstances are changing, treading water may not be enough to keep pace with the changing times. Agencies that can’t plan for the future can fall behind. Their work can lose value.

Can acting officials hurt an agency?

As noted earlier, only two groups of people can become acting officials: top deputies and Presidential appointees. That means they generally have the knowledge and experience, or at least the authority, to do their jobs. However, that does not mean they will always make the best decisions.

On the one hand, a dispute between the GAO and DOJ about time limits and resets may feel far removed from federal employees’ daily lives. On the other hand, the decisions those acting officers make can ripple down throughout an agency. Sometimes, they may steer agencies in the wrong direction or promote certain discriminatory biases.

If these are policies an agency makes while its acting officer has overstayed the allowed welcome, then employees may be able to do more than simply report the policies to the EEOC. They may potentially sue to see those policies nullified.


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