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Acting (law)

April 08, 2023

This article is about the law of temporary officials. For the law governing people acting on someone else's behalf, see law of agency.

In law, a person is acting in a position if they are not serving in the position on a permanent basis. This may be the case if the position has not yet been formally created, the person is only occupying the position on an interim basis, the person does not have a mandate, or if the person meant to execute the role is incompetent or incapacitated.

Business

Organizations are advised to have a succession plan including the designation of an acting CEO if the person in that job vacates that position before a replacement has been determined. For example, the lead director on the board of directors may be designated to assume the responsibilities of the CEO until the board finds a new CEO.[1]

Politics

Examples of acting positions in politics include acting mayor, acting governor, acting president, and acting prime minister. Officials in an acting position usually do not have the full powers of a properly appointed official, and are often the proper official's deputy or longest serving subordinate. Being placed in an acting position is a good indicator that the acting person has the confidence of their superiors or colleagues, and is likely to be chosen for the position on a permanent basis.

Legal frameworks

Commonwealth

In Commonwealth countries including Australia and Canada, the Carltona doctrine is the overarching legal principle governing when a minister may be said to be acting for or on behalf of a government department.[2][3]

United States

The 1910 edition of Black's Law Dictionary defines "acting" as a "term employed to designate a locum tenens who is performing the duties of an office to which he does not himself claim title".[4] The 1914 edition of Corpus Juris Secundum gives much the same account.[5]

Fraser v. United States, the first case cited in the Black's entry on "acting", concerns James G. Hill, the Supervising Architect of the Treasury. Hill had been suspended with pay while being investigated for a charge of fraud. Another person, John Fraser, was then directed by the Secretary of the Treasury to take charge of and perform the duties of Hill's office as "Acting" Supervising Architect. Officially, Fraser was merely a contractor who had been contracted to oversee the construction of a building for the Bureau of Engraving and Printing. When Hill was returned to his position some five and a half months later, Fraser sought to be compensated for the time he had worked as Acting Supervising Architect, seeking the difference between the salary for that office and his much lower pay as a contracting architect for the Treasury. The Court of Claims found that the "acting" position was not a statutory creation, and that Fraser was entitled to no pay beyond that of his contract for the period.[6]

The rules for appointment of acting officials are covered in many cases by the Federal Vacancies Reform Act of 1998 (FVRA).[7] Legal scholar Anne Joseph O'Connell notes that one central—and unresolved—question about the nature of acting officials under FVRA is their status under the Appointments Clause of the Constitution of the United States.[8] O'Connell observes that portions of FVRA, an act of Congress which sets out a detailed scheme for filling vacant positions in federal agencies, may be unconstitutional if acting officials can be "principal" officers under the Appointments Clause.[8] The constitutional issue emerges because the Appointments Clause requires principal officers to be appointed by the President with the advice and consent of the Senate. If acting officers who take office pursuant to FVRA—not pursuant to presidential nomination and Senate confirmation—can be considered principal officers, then the FVRA would be unconstitutional to the extent that it allows this to occur.[9] Heilpern, for his part, argues that acting Cabinet-level officials are principal officers.[10]

See also

References

  1. ^ Ann Brockett, Zabihollah Rezaee, Corporate Sustainability: Integrating Performance and Reporting (2012), p. 139.
  2. ^ McMillan 2000: 'The prevailing presumption of Anglo-Australian public law, articulated in the Carltona case … was that: [t]he duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department'.
  3. ^ Malkin 2008, pp. 547–548.
  4. ^ Black, Henry Campbell (1910). Black's Law Dictionary. Saint Paul, Minnesota: West. 23 – via Wikisource. A term employed to designate a locum tenens who is performing the duties of an office to which he does not himself claim title; e.g., "Acting Supervising Architect." Fraser v. United States, 16 Ct. Cl. 514. An acting executor is one who assumes to act as executor for a decedent, not being the executor legally appointed or the executor in fact. Morse v. Allen, 99 Mich. 303, 58 N. W. 327. An acting trustee is one who takes upon himself to perform some or all of the trusts mentioned in a will. Sharp v. Sharp, 2 Barn. & Ald. 415. [scan  ]
  5. ^ Mack, William; Hale, William Benjamin, eds. (1914). "Acting". Corpus Juris Secundum. Vol. 1. New York: American Law Book Company. pp. 913–914 – via Internet Archive.
  6. ^ Fraser v. United States, 16 Ct. Cl. 507, 1800 WL 1254 (1880).
  7. ^ Brannon, Valerie C. (20 July 2018). "The Vacancies Act: A Legal Overview" (PDF). U.S. Congressional Research Service. pp. 9–13. Retrieved 8 November 2018.   This article incorporates text from this source, which is in the public domain.
  8. ^ a b O'Connell 2020, p. 660.
  9. ^ O'Connell 2020, p. 662 (note 238).
  10. ^ Heilpern 2019, p. 265: "… this article shows that under current Supreme Court case law, an interim Cabinet Head is clearly an 'Officer of the United States'".

Sources

  This article incorporates text from this source, which is in the public domain: Black, Henry Campbell (1910). Black's Law Dictionary. Saint Paul, Minnesota: West. 23 – via Wikisource. [scan  ]

  • Heilpern, James A. (2019). "Acting Officers" (PDF). George Mason Law Review. 27 (1): 263–306.
  • Malkin, Alissa (2008). "Government Reorganization and the Transfer of Powers: Does Certainty Matter?". Ottawa Law Review. 39 (3): 537–570. SSRN 2714178.
  • McMillan, John (7 November 2000). "Parliament and Administrative Law". Research Paper 13 2000-01. Parliament of Australia. Retrieved 22 July 2020.
  • O'Connell, Anne Joseph (2020). "Actings". Columbia Law Review. 120 (3): 613–728. ISSN 0010-1958. JSTOR 26910475.

April 08, 2023
acting, this, article, about, temporary, officials, governing, people, acting, someone, else, behalf, agency, person, acting, position, they, serving, position, permanent, basis, this, case, position, been, formally, created, person, only, occupying, position,. This article is about the law of temporary officials For the law governing people acting on someone else s behalf see law of agency In law a person is acting in a position if they are not serving in the position on a permanent basis This may be the case if the position has not yet been formally created the person is only occupying the position on an interim basis the person does not have a mandate or if the person meant to execute the role is incompetent or incapacitated Contents 1 Business 2 Politics 3 Legal frameworks 3 1 Commonwealth 3 2 United States 4 See also 5 References 6 SourcesBusiness EditOrganizations are advised to have a succession plan including the designation of an acting CEO if the person in that job vacates that position before a replacement has been determined For example the lead director on the board of directors may be designated to assume the responsibilities of the CEO until the board finds a new CEO 1 Politics EditExamples of acting positions in politics include acting mayor acting governor acting president and acting prime minister Officials in an acting position usually do not have the full powers of a properly appointed official and are often the proper official s deputy or longest serving subordinate Being placed in an acting position is a good indicator that the acting person has the confidence of their superiors or colleagues and is likely to be chosen for the position on a permanent basis Legal frameworks EditCommonwealth Edit In Commonwealth countries including Australia and Canada the Carltona doctrine is the overarching legal principle governing when a minister may be said to be acting for or on behalf of a government department 2 3 United States Edit The 1910 edition of Black s Law Dictionary defines acting as a term employed to designate a locum tenens who is performing the duties of an office to which he does not himself claim title 4 The 1914 edition of Corpus Juris Secundum gives much the same account 5 Fraser v United States the first case cited in the Black s entry on acting concerns James G Hill the Supervising Architect of the Treasury Hill had been suspended with pay while being investigated for a charge of fraud Another person John Fraser was then directed by the Secretary of the Treasury to take charge of and perform the duties of Hill s office as Acting Supervising Architect Officially Fraser was merely a contractor who had been contracted to oversee the construction of a building for the Bureau of Engraving and Printing When Hill was returned to his position some five and a half months later Fraser sought to be compensated for the time he had worked as Acting Supervising Architect seeking the difference between the salary for that office and his much lower pay as a contracting architect for the Treasury The Court of Claims found that the acting position was not a statutory creation and that Fraser was entitled to no pay beyond that of his contract for the period 6 The rules for appointment of acting officials are covered in many cases by the Federal Vacancies Reform Act of 1998 FVRA 7 Legal scholar Anne Joseph O Connell notes that one central and unresolved question about the nature of acting officials under FVRA is their status under the Appointments Clause of the Constitution of the United States 8 O Connell observes that portions of FVRA an act of Congress which sets out a detailed scheme for filling vacant positions in federal agencies may be unconstitutional if acting officials can be principal officers under the Appointments Clause 8 The constitutional issue emerges because the Appointments Clause requires principal officers to be appointed by the President with the advice and consent of the Senate If acting officers who take office pursuant to FVRA not pursuant to presidential nomination and Senate confirmation can be considered principal officers then the FVRA would be unconstitutional to the extent that it allows this to occur 9 Heilpern for his part argues that acting Cabinet level officials are principal officers 10 See also EditInterim disambiguation RegentReferences Edit Ann Brockett Zabihollah Rezaee Corporate Sustainability Integrating Performance and Reporting 2012 p 139 McMillan 2000 The prevailing presumption of Anglo Australian public law articulated in the Carltona case was that t he duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department Malkin 2008 pp 547 548 Black Henry Campbell 1910 Black s Law Dictionary Saint Paul Minnesota West 23 via Wikisource A term employed to designate a locum tenens who is performing the duties of an office to which he does not himself claim title e g Acting Supervising Architect Fraser v United States 16 Ct Cl 514 An acting executor is one who assumes to act as executor for a decedent not being the executor legally appointed or the executor in fact Morse v Allen 99 Mich 303 58 N W 327 An acting trustee is one who takes upon himself to perform some or all of the trusts mentioned in a will Sharp v Sharp 2 Barn amp Ald 415 scan Mack William Hale William Benjamin eds 1914 Acting Corpus Juris Secundum Vol 1 New York American Law Book Company pp 913 914 via Internet Archive Fraser v United States 16 Ct Cl 507 1800 WL 1254 1880 Brannon Valerie C 20 July 2018 The Vacancies Act A Legal Overview PDF U S Congressional Research Service pp 9 13 Retrieved 8 November 2018 This article incorporates text from this source which is in the public domain a b O Connell 2020 p 660 O Connell 2020 p 662 note 238 Heilpern 2019 p 265 this article shows that under current Supreme Court case law an interim Cabinet Head is clearly an Officer of the United States Sources Edit This article incorporates text from this source which is in the public domain Black Henry Campbell 1910 Black s Law Dictionary Saint Paul Minnesota West 23 via Wikisource scan Heilpern James A 2019 Acting Officers PDF George Mason Law Review 27 1 263 306 Malkin Alissa 2008 Government Reorganization and the Transfer of Powers Does Certainty Matter Ottawa Law Review 39 3 537 570 SSRN 2714178 McMillan John 7 November 2000 Parliament and Administrative Law Research Paper 13 2000 01 Parliament of Australia Retrieved 22 July 2020 O Connell Anne Joseph 2020 Actings Columbia Law Review 120 3 613 728 ISSN 0010 1958 JSTOR 26910475 This article includes a list of related items that share the same name or similar names If an internal link incorrectly led you here you may wish to change the link to point directly to the intended article Retrieved from https en wikipedia org w index php title Acting law amp oldid 1136919147, wikipedia, wiki, book, books, library,

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