Clock ticking on officials in acting roles

For some feds in "acting" roles, the curtain is about to come down.

The Trump administration is about to hit a deadline that covers officials acting in jobs that are supposed to be filled by political appointment. Under the Vacancies Act of 1998, officials in acting roles have a 210-day clock before their temporary terms are cut off. The act grants incoming administrations a 90-day extension, giving them 300 days from Inauguration Day before the first tranche of acting officials trigger the terms of the law.

For the Trump administration, that date is Nov. 15.

The deadline hits the Trump administration as it struggles to staff a broad range of high-level jobs. According to an appointments tracker maintained by the Partnership for Public Service and the Washington Post, only 173 nominees have been confirmed out of 610 key positions. There are 169 nominees awaiting confirmation and for 261 posts there's no nominee at all. There are about 1,200 executive branch positions requiring presidential appointment and Senate confirmation that are covered by the Vacancies Act, although there are handful of carve-outs.

"Most acting officials are highly skilled and knowledgeable, but they lack the perceived authority that comes with being a Senate-confirmed official. Many officials serving in an acting capacity are neither empowered nor comfortable making major or long-term policy decisions for the administration," Kristine Simmons, vice president of government affairs at the Partnership, said in an emailed statement to FCW. "This situation creates legal confusion about who is authorized to take action, and contributes to a leadership vacuum which can handicap the government’s capacity to handle a wide array of national security, economic and domestic policy challenges."

The law doesn't provide for the eviction of acting officials or any other enforcement mechanism, but the offices are designated vacant once the time limit is reached. That means that the official duties of the office devolve to the agency head.

In the absence of direct enforcement, the act tasks the head of the Government Accountability Office with keeping tabs on the time limits of service in an acting capacity and informing agency heads of violations.

Charles Young, a spokesperson for GAO, told FCW in an email that the agency "will monitor agency compliance with this time limitation and issue violation reports as appropriate."

GAO posts violation letters online.

The law also sets out who may serve in an acting role in a politically appointed post: a first assistant or deputy to the previous confirmed office holder; an official who holds another confirmed political appointment elsewhere in government; or an agency employee who is paid at the GS-15 rate or higher, and who has served at the agency for 90 days out of the last year.

A Nov. 1 Congressional Research Service legal sidebar explains that, "if the acting officer remains in office and attempts to perform a nondelegable function or duty -- one that a statute or regulation expressly assigns to that office -- that action will 'have no force or effect.'"

Additionally, the law prevents an official qualified under the act from redoing an action deemed as void because of a Vacancies Act violation.

This precedent suggests that decisions made by any Trump officials who remain in acting roles past the 300 day limit will be subject to legal challenge.

The Supreme Court, in a March 2017 opinion, ruled that an adverse action taken against a company by the National Labor Relations Board was void because the responsible official was serving in an acting role beyond the time period called for in the Vacancies Act.

If an individual in an acting role is nominated for the job in which he or she is acting, the law calls for that person to step down from the acting role and await confirmation. Beth Cobert, who was acting director of the Office of Personnel Management in the last year of the Obama administration, ran afoul of this provision.

In February 2016, then-OPM Inspector General Patrick McFarland issued a memo to Cobert explaining that under the terms of the act, any actions taken by her after her nomination to the permanent job were void.