                                                                         March 21, 1977


77-12       MEMORANDUM OPINION FOR THE
            COUNCIL OF ECONOMIC ADVISERS

            Appointment of Deputy Director of the Council on
            International Economic Policy (CIEP) by Its
            Executive Director


   This is in response to your memorandum in which you inquire
whether the former Executive Director of the Council on International
Economic Policy (CIEP), was authorized to appoint Mr. A as the
“ Deputy D irector” 1 of CIEP, and, if not, by what means may someone
be named to carry on C IE P ’s function absent the appointment of an
Executive Director of CIEP by the President, by and with the advice
and consent of the Senate.
   Pursuant to 22 U.S.C. § 2847(b) (Supp. V 1975), the Executive D irec­
tor o f C IE P has the power to appoint such staff personnel as he deems
necessary with the approval o f the Council. Thus, the Executive Direc­
tor had the power to appoint Mr. A as the Deputy Executive Director
of C IEP provided he had secured the approval of the Council.
   As wfe understand your letter you are, however, less concerned with
Mr. A ’s status as Deputy Executive D irector than with his authority to
act as Executive Director o f CIEP and perform the functions of that
official. The C IE P statute does not provide for a Deputy Executive
D irector and is silent on the question as to who is to perform the duties
o f the office of Executive D irector in the event of a vacancy. Hence,
assuming that Mr. A was validly appointed Deputy Executive Director,
that fact alone would not enable him to perform those functions that
are exclusively vested in the Executive D irector of CIEP.
   We are aware of the memorandum dated January 11, 1977, to the
Heads of Departments and Agencies from Mr. James E. Connor, Secre­
tary to the Cabinet and Staff Secretary to President Ford, entitled
“Resignation of Presidential Appointees,” par. 4 of which provides:

   1 W hile yo u r m em orandum uses th e term “D e p u ty D irector,” w e assume that M r. A
w as actually appointed D eputy E xecutive D irector.

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      In order to make certain there is no interruption in responsibility
      after January 20, President Ford’s transition officer for each de­
      partment and agency and the President-elect’s transition officer for
      that department and agency should reach agreement on the desig­
      nation of a Ford-appointed subordinate officer who would have
      the power and responsibility of acting secretary until the appropri­
      ate officer of the new administration is confirmed and sworn in.
It does not appear from the papers submitted to us whether Mr. A was
designated pursuant to that authority to act as Executive Director
pending the appointment of such officer by and with the advice and
consent of the Senate. Moreover, it is questionable whether having
been appointed during the very last days of the Ford Administration,
Mr. A would be a “Ford-appointed subordinate officer” within the
scope of that memorandum.
   However, if Mr. A was appointed Deputy Executive Director with
the approval of the Council and if he was designated Acting Executive
Director in accordance with the provisions of the January 11, 1977,
memorandum, it can be said that this designation was made at the
direction of President Ford and that it was ratified by President Carter.
   This gives rise, to the problem of whether President Ford had the
authority to make an ad interim designation to a position that requires
Senate confirmation. The U.S. District Court for the District of Colum­
bia in Williams v. Phillips, 360 F. Supp. 1363 (D.D.C., 1973), held that
such an “appointment” cannot be made without statutory authoritza-
tion. In its ruling on the Government’s application for a stay of the
decision, the Court of Appeals indicated that at best the President
would have an implied power “to appoint an acting director [of the
Office of Economic Opportunity] for a reasonable period before submit­
ting the nomination of a new director to the Senate.” The Court of
Appeals suggested that the 30-day period of the Vacancy Act (5 U.S.C.
§ 3348)2 was an indication of what constituted a reasonable period.
 Williams v. Phillips, 482 F. 2d 669, 670-671 (D.C. Cir. 1973). Here the
vacancy has lasted for nearly twice that period.
   Another difficulty here is presented by Mr. A ’s subsequent appoint­
ment as Chairman of the Council of Economic Advisers. As such, Mr.
A is an ex officio member of the CIEP Council. This raises the question
whether Mr. A ’s position as a member of the C IEP Council and
Deputy Executive Director and Acting Executive Director of C IE P
are compatible offices.
   Earlier prohibitions against dual officeholding were repealed in 1964
and replaced by legislation that, with a few exceptions, merely prohibits
the dual compensation of persons holding two offices. 5 U.S.C. § 5533.
That legislation, however, is not to be read as also overcoming the
basic legal doctrine prohibiting the holding of incompatible offices. See,

  ’ T h e V acancy A c t does not apply to C IE P because that A c t is limited to “ E xecutive
departm ents” and C IE P is not an executive departm ent. 5 U.S.C. § 101.

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Crossthwaite v. United States, 30 C. Cl. 300, 308 (1895), rev’d on other
grounds, 168 U.S. 375; Lopez v. Martinelli, 59 F. 2d 176, 178 (1st Cir.
 1932); 22 Op. A.G. 237, 238 (1898); Throop, Public Officers (1892), 37-
38. Perhaps the most important public policy consideration in this area
is the principle that no public official should be a judge in his own
cause, or review in one capacity actions that he has taken in another
capacity.
   As a member of the C IE P Council, Mr. A would be in a position in
which he would have a role in the Council’s review or approval of
decisions, personnel actions, and other management functions made by
him as Acting Executive D irector of CIEP. 22 U.S.C. § 2847 (Supp. V
1975). Hence, it might be said that Mr. A should be regarded as having
vacated by operation of law his position as Acting Executive Director
o f C IEP, by virtue of his appointment as Chairman of the Council of
Economic -Advisers.
   On the basis of the above analysis, it is our opinion:
        (1) That the President should designate a person, other than Mr.
     A, to be Acting Executive Director, CIEP. If the designee is not
     chosen from the CIEP staff, it would be desirable that the designee
     (a) be a person who has been appointed to some other position by
     and with the advice and consent o f the Senate, and (b) not be a
     member of the CIEP Council.
        (2) That the President should nominate a permanent Executive
     D irector as soon as possible.

                                          John M . H   arm on
                                Acting Assistant Attorney General
                                               Office o f Legal Counsel




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