Primer on Presidential Appointments Requiring Senate Confirmation

Primer on Presidential Appointments Requiring Senate Confirmation2016-12-14T20:53:17+00:00

Individuals Appointed by the President

Officers and employees who serve “at the pleasure of” the President or other appointing official may be asked to resign or may be dismissed at any time. They are not covered by standard civil service removal procedures and have no right of appeal.  The Office of Legal Counsel at the Department of Justice is the expert on Presidential appointments.

The Vacancies Act

The Vacancies Act prescribes requirements for filling, both permanently and temporarily, vacancies that are required to be filled by Presidential appointment with Senate confirmation (PAS appointments).  The Act was substantially amended in 1998.

The new Act provides revised rules for temporarily filling vacant PAS positions.  In most cases, it is the exclusive means for filling vacant PAS positions with a person designated as the “Acting” officer.  The Act also recognizes other limited means to fill PAS positions, such as recess appointments and other specific statutory authorities. The 1998 amendments specifically provide that an agency head’s general authority to delegate or reassign duties within the agency does not remain a viable, separate authority for filling a vacant PAS position on a temporary basis.

An office becomes “vacant” when the incumbent “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”  The Act does not specify the full range of other circumstances that would constitute such inability, but legislative history indicates it would include being fired, imprisoned, or a serious sickness.  The Act also specifies that the expiration of a term of office constitutes such inability to perform the functions and duties of the office.

Under the Act, there are generally three categories of persons who can serve in an acting capacity for vacant PAS positions.

  • First, the “first assistant” to the vacant office.  The Act does not define this term, but legislative history generally refers to the top deputy to the position. The law also appears to permit creating a first assistant by regulation where there is no statutory first assistant.
  • Second, an existing PAS (from the agency at issue or from any other agency) designated by the President (and only the President).
  • Third, certain senior agency employees designated by the President (and only the President).

There is a general limit of 210 days for serving in an acting capacity.  With respect to any vacancy that exists during the 60-day period beginning with a Presidential inauguration, the 210 days begins on the later of 90 days after the inauguration or 90 days after the date of the vacancy.  There are also time constraints if the President nominates a person to fill the PAS position on a permanent basis during the period that the position is held on an acting basis.

The Office of Legal Counsel (OLC) at the Department of Justice has issued extensive guidance on the Vacancies Act and is available to respond to specific questions.

The Assistant to the President for Presidential Personnel coordinates all activities relating to Presidential appointments.

Effective Date of PAS Appointments

Presidential appointments subject to Senate confirmation (PAS) are effective on the date the President signs the commission document.  However, the individual’s pay does not begin until the appointee is sworn in and signs the oath of office.

For individuals serving under term PAS appointments, the term begins on the effective date of the appointment; i.e., the day the President signs the commission document.

Pay and Leave

Individuals appointed by the President, with Senate confirmation, occupy positions that are placed by law in the Executive Schedule, or are established at pay rates equivalent to the Executive Schedule.  This schedule has five levels: Levels I through V (the lowest).

Individuals in the Executive branch who are appointed by the President to positions in the Executive Schedule are not covered by the leave system.  They do not earn annual or sick leave and, therefore, are not charged leave for absences from work.

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