�Appointment of Department of the Interior Associate Deputy Secretary, B-290233, October 22, 2002

B-290233 Oct 22, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights You have expressed concern that the Associate Deputy Secretary might be exercising all of the authorities of the Secretary of the Interior but. He was not nominated by the President and confirmed by the Senate. You have asked whether the incumbent Associate Deputy Secretary: (1) exercises "significant authority pursuant to the laws of the United States. (2) is a de facto "Officer of the United States" based on the exercise of such authority. (3) appears to have been properly appointed to his position. " (2) is therefore not a de facto "officer" subject to Appointments Clause procedures. (3) appears to have been properly appointed to his position as a Non-Career Senior Executive Service federal employee. View Decision Appointment of Department of the Interior Associate Deputy Secretary, B-290233, October 22, 2002 The Honorable Jeff Bingaman Chairman, Committee on Energy and Natural Resources United States Senate This responds to your request for our opinion on issues relating to the responsibilities, authorities, and manner of appointment of the incumbent Associate Deputy Secretary of the Department of the Interior (DOI). You have expressed concern that the Associate Deputy Secretary might be exercising all of the authorities of the Secretary of the Interior but, unlike the Secretary, he was not nominated by the President and confirmed by the Senate. In particular, you have asked whether the incumbent Associate Deputy Secretary: (1) exercises "significant authority pursuant to the laws of the United States," as the Supreme Court has used that term; (2) is a de facto "Officer of the United States" based on the exercise of such authority, potentially requiring nomination by the President and confirmation by the Senate under the Constitution's Appointments Clause; and (3) appears to have been properly appointed to his position. Based on information and documentation we received from DOI and other agency officials, and for the reasons discussed below, we conclude that the incumbent in this position: (1) does not exercise "significant authority pursuant to the laws of the United States;" (2) is therefore not a de facto "officer" subject to Appointments Clause procedures, including but not limited to Presidential appointment and Senate confirmation (a so-called "PAS appointment"); and (3) appears to have been properly appointed to his position as a Non-Career Senior Executive Service federal employee. Background The position of DOI Associate Deputy Secretary, which Department officials advised has existed since at least the mid-1970's, is classified as a Senior Executive Service (SES) "general" position. /1/ An SES "general" position may be filled through either a career or a non-career appointment. DOI non-career appointees serve at the will of the Secretary, and the current Associate Deputy Secretary, as well as his immediate predecessor, have both served under non-career appointments. /2/ The appointment process for the incumbent DOI Associate Deputy Secretary position involved clearances by the White House, the Office of Personnel Management and the Office of the Secretary, as well as approval by DOI's Executive Resources Board. DOI officials do not recall that the position has ever been treated as a PAS position. According to the current Position Description, the incumbent Associate Deputy Secretary reports to the Deputy Secretary and is the Deputy Secretary's principal aide. (By statute, the position of Deputy Secretary must be filled through a PAS appointment. /3/) The Associate Deputy Secretary provides advice and assistance in the administration of the Deputy Secretary's responsibilities, by managing internal and program activities of the office. The incumbent's specific duties include acting as the focal point for review of proposed policies, regulations, and legislation, in order to ensure coordination within DOI and with other agencies, Congress, public interest groups, and state, local, and tribal governments. The incumbent also alerts the Deputy Secretary to matters requiring his attention, and performs a host of other duties. These include managing staff, coordinating and monitoring project planning and assignments, and attending high level DOI meetings on behalf of the Deputy Secretary to ensure that the Deputy Secretary's views are represented and that views expressed by others are reported back to the Deputy Secretary accurately. In addition, the Associate Deputy Secretary is the Deputy Secretary's liaison to DOI's legislative and communications directors, and he coordinates sensitive discussions between the Deputy Secretary and other high-level DOI officials. /4/ The foregoing responsibilities appear consistent with the authority given to the Associate Deputy Secretary by DOI's internal delegations.