Casey Questions Legality Of Recess Appointment

Casey joins Senators Dodd and Kerry in sending letter to GAO asking them to investigate

WASHINGTON, DC- U.S. Senator Bob Casey (D-PA) today joined Senators Chris Dodd (D-CT) and John Kerry (D-MA) in sending a letter to the General Accountability Office (GAO) requesting them to look into the legality of the President's recess appointment of Sam Fox to be ambassador to Belgium. On March 28, the Bush Administration withdrew Mr. Fox's nomination before the Foreign Relations Committee and then yesterday gave him a recess appointment.

"Sam Fox's refusal to give straight answers to serious questions would have defeated his nomination in Committee," said Casey. "President Bush has circumvented the confirmation process. In doing so he has not only ignored Senate opposition to the nomination, but he may have done so in a way that may not be legal. That is why I joined Senators Dodd and Kerry in asking the GAO to look into this matter."

Text of the letter follows:

The Honorable David M. Walker Comptroller General Government Accountability Office 441 G Street, NW Washington, DC 20548

Dear Mr. Walker:

We write to request that the Government Accountability Office examine a particular aspect of the legality of the Bush Administration's recent recess appointment of Mr. Sam Fox as Ambassador to Belgium. We view the recess appointment of Mr. Fox as a clear abuse of the President's recess appointment power, but additionally think that Mr. Fox may be barred from taking the position of Ambassador, since the government is prohibited from accepting the voluntary services of an individual under 5 U.S.C. § 1342. We would, therefore, appreciate your formal opinion on this issue.

By way of background, on January 7, 2007, the President nominated Mr. Sam Fox to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Belgium. A hearing on his nomination was held by the Senate Foreign Relations Committee on Tuesday, February 27, 2007. The Senate Committee had placed Mr. Fox's nomination on the agenda for a Business Meeting on March 28, 2007. Shortly before the Business Meeting convened, however, the President withdrew the nomination of Mr. Fox from the Senate.

The Senate then went into recess on March 29, 2007. On April 4, 2007, while the Senate was in recess, and after Mr. Fox's nomination had been withdrawn, the Bush Administration recess-appointed Mr. Fox as Ambassador to Belgium.

Under 5 U.S.C. § 5503, in order for Mr. Fox to be paid for his services as Ambassador, his nomination would have to have been pending before the Senate on March 29th, when the Senate went into recess. Moreover, according to a separate statute, 31 U.S.C. § 1342, the U.S. Government cannot accept "voluntary services" from individuals except in an emergency.

As we understand it, there are some exceptions to this prohibition. For example, "voluntary services" may be permitted if an agreement is made between the individual and the government agency in question that no later claim to compensation will be made. In the case of Mr. Fox, however, it appears that the "voluntary services" prohibition would still apply because the position in question is a statutory entitlement with a fixed rate of pay that cannot be waived (Section 401 of the Foreign Service Act of 1980 mandates a fixed rate of pay for the position of Ambassador).

There appears to be a clear conflict between the pay restrictions as enumerated in Title 5 of the United States Code, which prevent Mr. Fox from being paid due to the circumstances of his recess appointment, and the "voluntary services" provision of Title 31 of the United States Code, which mandates that the United States Department of State cannot accept "voluntary services" for the position to which Mr. Fox has been recess appointed.

Given the time-sensitivity of this matter, we request that the GAO urgently examine the following aspects of this case and provide its findings/recommendations as quickly as possible:

Would Mr. Fox's service as Ambassador, if unpaid, be considered "voluntary service" within the meaning of 31 U.S.C. § 1342? If not, why not?

Is there a conflict between statutes when it comes to Mr. Fox providing "voluntary services"? If so, how should they be reconciled? If the United States Senate defeats the nomination of Mr. Fox, would Mr. Fox's recess appointment continue through the current session of the Congress, or would it be terminated? Thank you in advance for your prompt attention to this request. We look forward to your findings and recommendations.


Christopher J. Dodd John F. Kerry Robert. P Casey, Jr.

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