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B-290233 1 (2002-10-22)

handle is hein.gao/gaocrptaofc0001 and id is 1 raw text is: ~G A 0. Accountability * Integrity* Reliability United States General Accounting Office Washington, DC 20548 B-290233 October 22, 2002 The Honorable Jeff Bingaman Chairman, Committee on Energy and Natural Resources United States Senate Subject: Appointment of Department of the Interior Associate Deputy Secretary Dear Chairman Bingaman: 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 defacto 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 defacto 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.' An SES general position may be filled through either a career or a 1 As originally created, the position had the title of Deputy Under Secretary, because the title of the official to whom this person reported was Under Secretary. When the Under Secretary's title was changed in 1990 to Deputy Secretary, by Pubic Law No. 101-509, a corresponding change was made to the subordinate's title to

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