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B-309301 1 (2007-06-08)

handle is hein.gao/gaocrptauih0001 and id is 1 raw text is: SGAO Accountability * Integrity * Reliability United States Government Accountability Office Washington, DC 20548 B-309301 June 8, 2007 The Honorable Christopher J. Dodd The Honorable John F. Kerry The Honorable Robert P. Casey, Jr. United States Senate Subject: Recess Appointment of Sam Fox This responds to your request of April 5, 2007, for our legal opinion on the recess appointment of Sam Fox to serve as Ambassador to Belgium. Specifically, you asked us to address the application of section 5503 of title 5, United States Code, as well as the voluntary services prohibition of the Antideficiency Act, to Mr. Fox's appointment. Our practice when rendering legal opinions is to obtain the views of the relevant federal agency to establish a factual record and to elicit the agency's legal position in the matter.' In this case, we wrote to the Legal Adviser of the Department of State to solicit the Department's views.2 The State Department responded to our letter and confirmed that, pursuant to section 5503, Mr. Fox would not be paid. The Department also asserted that such an arrangement does not violate the voluntary services prohibition because Mr. Fox is not volunteering his services; rather a statutory prohibition restricts him from receiving a salary. As we explain below, we agree with the Department that, under section 5503, Mr. Fox cannot receive a salary for his recess appointment. Likewise, we do not interpret the voluntary services prohibition to apply to this situation because the statutory bar of section 5503 eliminates the possibility of a coercive deficiency or a subsequent claim against the government, which was the original justification behind the prohibition. 1 GAO, Procedures and Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006), available atwwgoy /cgessjitml. 'Letter from Gary L. Kepplinger, General Counsel, GAO, to John Bellinger, III, Legal Adviser, Department of State, April 19, 2007. Letter from John B. Bellinger, III, Legal Adviser, Department of State, to Gary L. Kepplinger, General Counsel, GAO, May 9, 2007 (Bellinger Letter).

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