Who Can Serve as an Acting Officer? Section 3345 allows three classes of government officials or employees to temporarily perform the functions and duties of a vacant advice-and-consent office under the Vacancies Act. First, as a default and automatic rule, once an office becomes vacant, “the first assistant to the office” becomes the acting officer.The term “first assistant” is a term of art under the Vacancies Act. Nonetheless, the term is not defined by the Act and its meaning is somewhat ambiguous. The Vacancies Act’s legislative history suggests that the term refers to an office’s “top deputy.” For some offices, a statute or regulation explicitly designates an office to be the “first assistant” to that position. However, not all offices have such statutory or regulatory designations, and in those cases, who qualifies as the “first assistant” to that office may be open to debate. One additional question has been whether a first assistant must be serving at the time the vacancy occurs, or whether a person who later steps into the first assistant position can also serve as an acting officer under this provision of the Vacancies Act. The most recent executive branch position on this question concludes that new first assistants can step in as acting officials. In a 2001 opinion, the OLC noted that the text of the Vacancies Act refers to “the first assistant to the office,” not the particular officer. The OLC emphasized that prior versions of the Act had formerly used the phrase “first assistant to the officer,” and argued that requiring a first assistant to be in place at the time of the vacancy would, in effect, improperly revive this old text by requiring that person to be the first assistant to the departing officer. Apart from the first assistant, the President “madirect ct” two other classes of officials to serve as acting officers instead.103 First, the President may direct a person who has been confirmed to a different advice-and-consent position to serve as acting officer. Second, the President can select a senior “officer or employee” of the same executive agency, if that employee served in that agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15 on the federal pay scale.
