B-159029, JUL. 25, 1967

B-159029, JUL. 25, 1967

COMPENSATION - SEVERANCE PAY LETTER TO INDIVIDUAL CONCERNING ENTITLEMENT TO SEVERANCE PAY WHEN AN EMPLOYEE REFUSES TO ACCEPT REASSIGNMENT. CSC REGULATIONS WERE NOT INTENDED TO PRECLUDE AN AGENCY FROM ORDERING AN EMPLOYEE TO ACCOMPANY HIS POSITION TO A NEW LOCATION IN A TRANSFER SITUATION, INCLUDING RIF; ALSO THAT AN EMPLOYEE'S SEPARATION FOR REFUSAL TO COMPLY WOULD BE REGARDED AS A SEPARATION BECAUSE OF ,MISCONDUCT, DELINQUENCY OR INEFFICIENCY" AND THUS HE WOULD NOT BE ENTITLED TO SEVERANCE PAY AS IN B-159029, JUNE 17, 1966.

TO MISS HILDA L. AARON:

THIS IS IN REPLY TO YOUR LETTERS OF NOVEMBER 25 AND DECEMBER 9, 1966, REFERRING TO OUR DECISION B-159029, JUNE 17, 1966, CONCERNING ENTITLEMENT TO SEVERANCE PAY WHEN AN EMPLOYEE REFUSES TO ACCEPT REASSIGNMENT.

IT APPEARS TO BE YOUR POSITION THAT THE SEPARATION OF AN EMPLOYEE FOR REFUSING TO ACCEPT A REASSIGNMENT AT ANOTHER LOCATION AFTER BEING ORDERED TO DO SO IS NOT A REMOVAL FOR CAUSE ON CHARGES OF "MISCONDUCT, DELINQUENCY, OR INEFFICIENCY" SO AS TO DISQUALIFY SUCH INDIVIDUAL FOR SEVERANCE PAY. YOU CONTEND THERE IS NO DISTINCTION BETWEEN THAT SITUATION AND TRANSFER OF FUNCTION CASES WHEREIN, YOU SAY, SEVERANCE PAY IS ALLOWED PURSUANT TO REGULATIONS OF THE CIVIL SERVICE COMMISSION.

TESTIMONY ON THE 1965 PAY BILL INDICATES THE BELIEF THAT SEVERANCE PAY WOULD BE PAYABLE UNDER THE PROPOSED LEGISLATION WHEN THE EMPLOYEE WAS "SEPARATED THROUGH NO FAULT OF HIS OWN.' MR. SCHULTZE, SENATE HEARINGS, PAGE 31; MR. MACY, HOUSE HEARINGS, PAGE 35; MR. RYAN, MACHINISTS IBID. PAGE 172; MR. MCCART, IBID. PAGE 279; PRESIDENTIAL MSG. DOC. 170, 89TH CONG., 1ST SESS., MAY 12, 1965, PAGE 4; H. REPT. NO. 792, 89TH CONG., AUGUST 16, 1965, 1ST SESS., PAGE 11.

THE CIVIL SERVICE COMMISSION BY LETTER OF MAY 27, 1967, TO OUR OFFICE, EXPRESSED ITS VIEWS IN CONNECTION WITH THIS MATTER AS FOLLOWS:

"WE BELIEVE IT PERTINENT TO POINT OUT THAT MANAGEMENT OF AN AGENCY MAY HAVE A NUMBER OF OPTIONS IN THE WAY IT GOES ABOUT PLACING ITS EMPLOYEES WITHIN THE AGENCY:

"1. IT MAY DECIDE TO REASSIGN AN EMPLOYEE FROM ONE COMMUTING AREA TO ANOTHER. THIS DECISION MAY OR MAY NOT OCCUR BECAUSE OF A TRANSFER OF FUNCTION SITUATION OR A REDUCTION-IN-FORCE SITUATION (THAT IS, AN EXCESS OF PERSONNEL IN A COMPETITIVE LEVEL);

"2. AS A RESULT OF A REDUCTION-IN-FORCE SITUATION, IT MAY OFFER AN EMPLOYEE A POSITION IN A DIFFERENT COMMUTING AREA BUT NOT REQUIRE THE EMPLOYEE TO TAKE IT.

"3. AS A RESULT OF A TRANSFER OF FUNCTION SITUATION, IT MUST OFFER AN EMPLOYEE THE OPPORTUNITY TO TRANSFER WITH HIS POSITION TO THE NEW COMMUTING AREA.

"THE DECISION TO CARRY OUT A REDUCTION IN FORCE OR A TRANSFER OF FUNCTION IS RECOGNIZED AS A MANAGEMENT ORGANIZATIONAL DECISION, AND THE COMMISSION FEELS THAT THE AGENCY SHOULD HAVE SOME PREROGATIVE IN THE PROCEDURE TO FOLLOW WHICH WILL BEST MEET THE NEEDS OF THE AGENCY, YET PERMIT THE AGENCY TO MEET THE RESPONSIBILITY IT OWES ITS EMPLOYEES.

"WHEN AN AGENCY MUST CARRY OUT A REDUCTION IN FORCE OBVIOUSLY SOME EMPLOYEES ARE GOING TO SUFFER A SUBSTANTIAL ECONOMIC SETBACK. FOR THIS REASON, THE AGENCY MAY WISH TO TRY TO PLACE EMPLOYEES IN VACANT POSITIONS THROUGH TRANSFER OF FUNCTION PROCEDURE. IT IS NOT SURPRISING THAT A SIGNIFICANT NUMBER OF EMPLOYEES WILL PREFER NOT TO ACCOMPANY THEIR POSITION IN A TRANSFER OF FUNCTION. HOWEVER, THE EMPLOYEE'S FAILURE TO ACCOMPANY HIS POSITION IN A TRANSFER OF FUNCTION DOES NOT AUTOMATICALLY TERMINATE HIS SERVICES NOR MAKE ANY RESULTING SEPARATION VOLUNTARY OR DISCIPLINARY. IT MAY BE THAT ENOUGH EMPLOYEES WILL -VOLUNTEER- TO ACCEPT A TRANSFER OF FUNCTION SO THAT NO SEPARATIONS WILL BE NECESSARY. IF SOME EMPLOYEES MUST BE SEPARATED, THE ACTION WILL BE CLASSIFIED AS -SEPARATION -- DECLINED RELOCATION, - BUT NO STIGMA OF DISCIPLINE ATTACHES TO THE SEPARATION.

"IT SHOULD ALSO BE NOTED THAT AN ACTION MAY BE NON-DISCIPLINARY AND STILL BE ADVERSE TO THE EMPLOYEE. THEREFORE, ADVERSE ACTION PROCEDURES MAY BE NECESSARY TO ACCOMPLISH A SEPARATION FOR FAILURE TO AN OPPORTUNITY TO ACCOMPANY HIS POSITION, AND ONLY AFTER DECLINING THE OFFER CAN THE RECEIVING AGENCY FILL THE POSITION FROM ANOTHER SOURCE.

"THEREFORE, WHEN AN EMPLOYEE DECLINES TO ACCOMPANY HIS ACTIVITY IN A TRANSFER OF FUNCTION HE IS DECLINING AN OFFER. HIS SEPARATION IS NOT CONSIDERED A DISCIPLINARY ACTION, AND WOULD NOT BE CONSIDERED AS SEPARATION BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. IT MUST BE EFFECTED UNDER THE ADVERSE ACTION PROCEDURES SINCE IT IS NOT A SEPARATION BY REDUCTION IN FORCE, BUT THIS DOES NOT CHANGE THE CHARACTER OF THE SEPARATION FROM THE FACT THAT IT RESULTED FROM THE DECLINATION OF AN OFFER, AND NOT FROM A REFUSAL TO GO.

"ON THE OTHER HAND, WHEN AN AGENCY FINDS IT NECESSARY TO ASSIGN AN EMPLOYEE TO A POSITION IN A DIFFERENT GEOGRAPHICAL LOCATION AND THE EMPLOYEE REFUSES TO ACCEPT THE NEW ASSIGNMENT, HIS SERVICE MAY BE TERMINATED. THIS IS CONSIDERED A DISCIPLINARY ACTION SINCE THE EMPLOYEE IS NOT DECLINING AN OFFER BUT IS REFUSING TO FOLLOW AN ORDER; IT IS CONSIDERED EQUIVALENT TO INSUBORDINATION. THEREFORE, THE EMPLOYEE IS SEPARATED BY REMOVAL FOR CAUSE UNDER THE GENERAL HEADING OF -MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.

"IN VIEW OF THIS, WE FEEL THAT THERE IS NO INCONSISTENCY IN THE REGULATIONS GOVERNING SEVERANCE PAY WHICH PROVIDES THAT WHEN AN EMPLOYEE DECLINES TO ACCOMPANY HIS POSITION WHEN IT IS MOVED TO ANOTHER COMMUTING AREA IN A TRANSFER OF FUNCTION, HIS SEPARATION IS DEEMED TO BE AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.'

WE UNDERSTAND FROM THE COMMISSION'S LETTER AS WELL AS FROM RECENT INFORMAL DISCUSSIONS WITH REPRESENTATIVES OF THAT AGENCY THAT THE SEVERANCE PAY REGULATIONS WERE NOT INTENDED TO PRECLUDE AN AGENCY FROM ORDERING AN EMPLOYEE TO ACCOMPANY HIS POSITION TO A NEW LOCATION IN A TRANSFER OF FUNCTION SITUATION, INCLUDING A SITUATION INVOLVING A REDUCTION IN FORCE; ALSO THAT AN EMPLOYEE'S SEPARATION FOR REFUSAL TO COMPLY WITH SUCH AN ORDER WOULD BE REGARDED AS A SEPARATION BECAUSE OF ,MISCONDUCT, DELINQUENCY OR INEFFICIENCY," AND THUS HE WOULD NOT BE ENTITLED TO SEVERANCE PAY SIMILAR TO THE INDIVIDUAL INVOLVED IN OUR DECISION OF JUNE 17, 1966.

WE BELIEVE THE FOREGOING IS AN ADEQUATE EXPLANATION OF THE MATTER. ALTHOUGH THE JURISDICTION OF OUR OFFICE IS SUCH THAT YOU ARE NOT ENTITLED TO REQUEST A REVIEW OF THE DECISION TO WHICH YOU REFER WE NEVERTHELESS HAVE CAREFULLY CONSIDERED THE POINTS RAISED BY YOU BUT WE FIND NO BASIS FOR ANY CHANGE IN THAT DECISION.