B-106116, JAN 6, 1975, 54 COMP GEN 554

B-106116, JAN 6, 1975, 54 COMP GEN 554

TRAVEL EXPENSES - INTERVIEWS, QUALIFICATIONS, ETC. - COMPETITIVE SERVICE POSITIONS CIVIL SERVICE COMMISSION (CSC) REQUEST THAT WE MODIFY DECISIONS, SUCH AS 31 COMP. GEN. 175 (1951), WHICH DO NOT ALLOW FEDERAL AGENCIES TO PAY PROSPECTIVE EMPLOYEES' TRAVEL EXPENSES INCIDENT TO INTERVIEWS FOR PURPOSE OF PERMITTING AGENCY TO DETERMINE THEIR QUALIFICATIONS FOR APPOINTMENT TO POSITIONS IN THE COMPETITIVE SERVICE IS GRANTED INSOFAR AS THE CSC CONCLUDES THAT THE POSITIONS ARE OF SUCH HIGH LEVEL OR HAVE SUCH PECULIAR CHARACTERISTICS THAT THE AGENCY IS BETTER SUITED TO DETERMINE THROUGH SUCH INTERVIEWS CERTAIN FACTORS OF THE APPOINTEES' SUITABILITY FOR THE POSITIONS WHICH THE CSC ITSELF CANNOT DETERMINE SINCE SUCH INTERVIEWS ARE NECESSARY TO DETERMINE THE PROSPECTIVE EMPLOYEES' QUALIFICATIONS. TRAVEL EXPENSES - INTERVIEWS, QUALIFICATIONS, ETC. - REIMBURSEMENT CIVIL SERVICE COMMISSION (CSC) REQUEST THAT WE MODIFY DECISIONS, SUCH AS 31 COMP. GEN. 175 (1951), WHICH DO NOT ALLOW FEDERAL AGENCIES TO PAY PROSPECTIVE EMPLOYEES' TRAVEL EXPENSES INCURRED IN TRAVELING TO PLACE OF INTERVIEW FOR PURPOSE OF PERMITTING AGENCY TO DETERMINE PROSPECTIVE EMPLOYEES' QUALIFICATIONS FOR APPOINTMENT TO POSITIONS IN THE COMPETITIVE SERVICE IS GRANTED IN PART, EVEN THOUGH CONGRESS HAS REFUSED TO PASS A LAW ALLOWING SUCH PAYMENTS GENERALLY BECAUSE IT WAS CONCERNED ABOUT WIDE ABUSES, SINCE THIS DECISION LIMITS PAYMENT TO INTERVIEW EXPENSES INCURRED WHERE CSC BELIEVES AGENCY INTERVIEW IS NECESSARY TO PROPERLY DETERMINE PROSPECTIVE EMPLOYEES' QUALIFICATIONS.

IN THE MATTER OF TRAVEL EXPENSES FOR PREEMPLOYMENT INTERVIEWS - CIVIL SERVICE COMMISSION, JANUARY 6, 1975:

THIS IS AN ADVANCE DECISION REQUESTED BY THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION, MR. ROBERT E. HAMPTON, CONCERNING THE PROPRIETY OF REIMBURSEMENT BY FEDERAL AGENCIES TO CERTAIN PROSPECTIVE EMPLOYEES FOR TRAVEL EXPENSES INCURRED IN TRAVELING TO A PLACE OF INTERVIEW FOR THE PURPOSE OF PERMITTING THE EMPLOYING AGENCY TO DETERMINE THE PROSPECTIVE EMPLOYEES' QUALIFICATIONS FOR APPOINTMENT TO POSITIONS IN THE COMPETITIVE SERVICE.

THE COMMISSION ACKNOWLEDGES THAT THE GENERAL RULE, AS STATED AT 31 COMP. GEN. 175 (1951), DOES NOT PERMIT A GOVERNMENT AGENCY TO PAY OR REIMBURSE A PROSPECTIVE EMPLOYEE FOR THE EXPENSES INCURRED IN TRAVELING TO A PLACE OF INTERVIEW FOR THE PURPOSE OF DETERMINING THE INDIVIDUAL'S QUALIFICATIONS FOR APPOINTMENT TO A POSITION IN THE COMPETITIVE SERVICE SINCE THE FUNCTION OF ASCERTAINING THE QUALIFICATIONS OF PROSPECTIVE EMPLOYEES IS A MATTER WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION. THE COMMISSION STATES THAT UNDER EXISTING LAW IT DETERMINES THE QUALIFICATIONS OF APPLICANTS FOR POSITIONS IN THE COMPETITIVE SERVICE. THE EMPLOYING AGENCY IS REQUIRED TO SELECT FOR APPOINTMENT TO A VACANCY ONE OF THE HIGHEST THREE ELIGIBLES AVAILABLE FOR APPOINTMENT FROM A LIST FURNISHED BY THE COMMISSION. THE COMMISSION ARGUES, HOWEVER, THAT THERE IS A CLEAR AND VERY BASIC DISTINCTION BETWEEN ITS RESPONSIBILITY FOR SCREENING AND EXAMINING CANDIDATES FOR THE COMPETITIVE SERVICE AND AN AGENCY'S RESPONSIBILITY TO MAKE THE FINAL DECISION ON QUALIFIED APPLICANTS IT WISHES TO SELECT. IN VIEW OF THIS DISTINCTION AND VARIOUS CIRCUMSTANCES WHICH ARE OUTLINED BELOW, THE COMMISSION REQUESTS THAT WE RECONSIDER OUR HOLDING IN 31 COMP. GEN. 175, SUPRA, AND PERMIT AGENCIES TO PAY THE TRAVEL EXPENSES OF PROSPECTIVE EMPLOYEES INCURRED INCIDENT TO PREEMPLOYMENT INTERVIEWS.

THE COMMISSION ALSO CITES OUR DECISIONS 38 COMP. GEN. 483 (1959) AND 31 COMP. GEN. 480 (1952), IN WHICH WE HELD THAT IF AN APPOINTMENT WERE TO BE MADE IN THE EXCEPTED SERVICE, THE EXPENSES OF TRAVEL INCURRED IN CONNECTION WITH A PREEMPLOYMENT INTERVIEW MAY BE PAID BY THE EMPLOYING AGENCY SINCE THE AGENCY, NOT THE COMMISSION, HAS THE RESPONSIBILITY FOR DETERMINING THE EMPLOYEE'S QUALIFICATIONS FOR EMPLOYMENT. FURTHER, WE HAVE HELD THAT, EVEN THOUGH AN APPOINTMENT MAY BE SUBJECT TO COMMISSION APPROVAL OF THE QUALIFICATIONS OF THE PROPOSED APPOINTEE, WHERE THE DUTY OF SELECTING AND PROPOSING AN APPOINTEE IS IMPOSED BY EXECUTIVE ORDER UPON AN EMPLOYING BODY, TRAVEL EXPENSES DETERMINED BY THE EMPLOYING BODY TO BE NECESSARY FOR THE FULFILLMENT OF THAT DUTY ARE PROPERLY CHARGEABLE TO FUNDS AVAILABLE FOR ADMINISTRATIVE EXPENSES. 40 COMP. GEN. 221 (1960). MOREOVER, THE RULE AT 31 COMP. GEN. 175, SUPRA, DOES NOT APPLY TO CERTAIN SCIENTIFIC AND PROFESSIONAL POSITIONS, EVEN THOUGH SUCH POSITIONS ARE IN THE COMPETITIVE SERVICE, AS THE STATUTE PROVIDING FOR SUCH POSITIONS PLACES THE DUTY OF SELECTING APPOINTEES UPON THE EMPLOYING AGENCY. COMP. GEN. 482 (1962). THE COMMISSION REQUESTS US IN LIGHT OF THE ABOVE TO RECONSIDER THE DECISION AT 31 COMP. GEN. 175, SUPRA, SINCE, ALTHOUGH THE COMMISSION HAS RESPONSIBILITY FOR EXAMINING CERTAIN CANDIDATES FOR THE COMPETITIVE SERVICE, IT IS THE EMPLOYING AGENCY'S RESPONSIBILITY TO MAKE THE FINAL DECISION ON QUALIFIED APPLICANTS IT WISHES TO SELECT.

THE COMMISSION ALSO OBSERVES THAT IT HAS BECOME INCREASINGLY APPARENT THAT MANY OF THE TOP-LEVEL CAREER POSITIONS IN THE FEDERAL GOVERNMENT CAN ONLY BE FILLED AFTER A SELECTION INTERVIEW HAS BEEN CONDUCTED BY THE AGENCY CONCERNED. IN THIS CONNECTION IT IS NOTED THAT AGENCIES SPEND MONEY ON AVAILABILITY INQUIRIES, TELEPHONE INTERVIEWS, AND EXPENSES AGENCY OFFICIALS INCUR IN TRAVELING TO INTERVIEW CANDIDATES. MOREOVER, AGENCIES HAVE TOLD THE COMMISSION THAT IT IS MORE EXPENSIVE TO SEND OFFICIALS TO VISIT CANDIDATES THAN IT WOULD BE TO BRING THE CANDIDATES IN TO SEE THE OFFICIALS.

ANOTHER FACTOR IN CONNECTION WITH THIS MATTER IS THE ADVICE FROM VARIOUS AGENCIES TO THE COMMISSION THAT HIGHLY QUALIFIED CANDIDATES MAY NOT CONSIDER A POSITION WITH A PARTICULAR AGENCY IF THEY DO NOT HAVE THE OPPORTUNITY TO MEET PROSPECTIVE SUPERVISORS AND CO-WORKERS, OBSERVE THE ENVIRONMENT IN WHICH THEY WOULD WORK, DISCUSS POTENTIAL ASSIGNMENTS, ETC. SINCE IT IS COMMON IN THE PRIVATE SECTOR TO PAY A PROSPECTIVE EMPLOYEE'S TRAVEL EXPENSES IN ORDER THAT HE MAY MEET THE PEOPLE WITH WHOM HE MIGHT WORK, AS WELL AS TO GIVE THE EMPLOYER THE OPPORTUNITY TO INSPECT THE CANDIDATE, THE COMMISSION BELIEVES THAT THE PROHIBITION AGAINST THE AGENCIES PAYING FOR PREEMPLOYMENT INTERVIEWS PLACES THE GOVERNMENT AT A DISADVANTAGE IN THE COMPETITION FOR THE MOST HIGHLY QUALIFIED EMPLOYEES.

FINALLY THE COMMISSION STATES THAT IT WOULD WORK WITH THE AGENCIES, IF THEY WERE PERMITTED TO PAY THE TRAVEL COSTS OF PREEMPLOYMENT INTERVIEWS, TO PROVIDE SUFFICIENT SAFEGUARDS IN ORDER TO PREVENT POSSIBLE ABUSES BY AGENCIES OR APPLICANTS. IN ADDITION, AGENCIES WOULD BE URGED TO RESTRICT THE USE OF SUCH AUTHORITY TO PAY PREEMPLOYMENT INTERVIEW TRAVEL EXPENSES TO THE FILLING OF KEY PROFESSIONAL, MANAGERIAL OR DIFFICULT-TO-FILL POSITIONS DEMANDING TOP-QUALITY TALENT. THE COMMISSION ALSO ASSERTS THAT USUALLY EXPENSES WOULD BE PAYABLE ONLY TO ONE OR MORE OF THE TOP THREE AVAILABLE ELIGIBLES CERTIFIED BY IT FOR THE POSITION.

IN DECISION B-172279, MAY 20, 1971, WHICH WAS IN RESPONSE TO AN IDENTICAL REQUEST FROM THE COMMISSION THAT WE OVERRULE OUR PREVIOUS DECISION AT 31 COMP. GEN. 175, SUPRA, WE REAFFIRMED THAT DECISION AND STATED IN PART:

*** WE FIND NO BASIS TO DEPART FROM THE GENERAL RULE THAT TRAVEL EXPENSES IN SUCH SITUATIONS MAY NOT BE PAID BY THE AGENCIES CONCERNED IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR. IN THAT CONNECTION WE NOTE THAT THE CONGRESS IN THE PAST HAS DECLINED TO ENACT LEGISLATION AUTHORIZING EXPENSES FOR INTERVIEWS OF PROSPECTIVE EMPLOYEES SUCH AS HERE INVOLVED. SEE SENATE REPORT NO. 2185, 85TH CONGRESS ON H.R. 11133. COMPARE HOUSE REPORT NO. 881, ON H.R. 9382, 90TH CONGRESS, 1ST SESSION. ALSO, SEE S. 1770 AND S. 2275, 91ST CONGRESS, 1ST SESSION.

IT WOULD APPEAR THAT OUR DECISION B-172279, SUPRA, WAS PARTIALLY BASED ON THE BELIEF THAT THERE IS A DIFFERENCE BETWEEN AN AGENCY'S AUTHORITY TO SELECT FROM A LIST OF ELIGIBLES PROVIDED BY THE COMMISSION UNDER 5 U.S.C. 3318(A) (1970) AND AN AGENCY'S AUTHORITY TO APPOINT AN INDIVIDUAL UNDER THE SITUATIONS DESCRIBED IN 41 COMP. GEN. 482, 40 ID. 221, 38 ID. 483, AND 31 ID. 480, SUPRA. IT WAS FELT THAT IN THE LATTER SITUATIONS THE INITIAL RESPONSIBILITY FOR DETERMINING THE QUALIFICATIONS OF AN APPLICANT RESTS WITH THE EMPLOYING AGENCY, BUT IN THE FORMER SITUATION THE ROLE OF THE AGENCY IS LIMITED TO SELECTING FROM A LIST OF ELIGIBLES AN APPLICANT WHOM THE COMMISSION HAS ALREADY INVESTIGATED AND DETERMINED TO BE QUALIFIED.

ON RECONSIDERATION, WE BELIEVE THIS INTERPRETATION OF THE LAW IS UNECESSARILY RESTRICTIVE WITH RESPECT TO THE SPECIAL SITUATIONS THE COMMISSION HAS DESCRIBED ABOVE. THE BASIC AUTHORITY TO SELECT AN EMPLOYEE RESTS WITH THE EMPLOYING AGENCY. 5 U.S.C. 3318(A). ORDINARILY THE AGENCY CAN STATE ITS PERSONNEL REQUIREMENTS IN SUCH A WAY THAT THE COMMISSION MAY DETERMINE THE QUALIFICATIONS OF PROSPECTIVE EMPLOYEES TO SUCH A DEGREE THAT THE AGENCY NEED NOT INTERVIEW THE EMPLOYEE WHEN THE COMMISSION FORWARDS IT A LIST OF ELIGIBLES. HOWEVER, WE AGREE WITH THE COMMISSION THAT THERE ARE CERTAIN POSITIONS IN THE COMPETITIVE SERVICE WHICH, FOR HIRING PURPOSES, DUE TO THEIR COMPLEX NATURE, DO NOT PROPERLY LEND THEMSELVES TO THE MORE BASIC REVIEW WHICH THE COMMISSION MAKES OF QUALIFICATIONS OF THOSE PROPOSED FOR EMPLOYMENT. SUCH POSITIONS CONTEMPLATED IN THIS RESPECT ARE THOSE WHICH ARE OF SUCH HIGH GRADE LEVEL OR WHICH HAVE SUCH UNIQUE OR PECULIAR QUALIFICATIONS THAT THE COMMISSION FINDS THAT IT CANNOT MAKE A COMPLETE DETERMINATION ON THE APPLICANT'S MERITS. IN THESE SITUATIONS IT IS NECESSARY FOR THE EMPLOYING AGENCY TO CONDUCT A PREEMPLOYMENT INTERVIEW SO THAT THE AGENCY MAY OBTAIN NECESSARY INFORMATION AS TO THE EMPLOYEE'S SUITABILITY TO WORK IN A GIVEN POSITION. THIS INFORMATION IS PECULIARLY SUITED FOR THE AGENCY TO DETERMINE BUT IT MAY VERY WELL BE OUTSIDE OF THE COMMISSION'S COMPETENCE IN ITS REVIEW OF AN APPLICANT'S QUALIFICATIONS. THEREFORE, WE HOLD THAT WHERE THE COMMISSION RULES THAT A POSITION IS OF SUCH NATURE THAT IT COULD ONLY BE PROPERLY FILLED AFTER THE APPLICANT HAS HAD A PREEMPLOYMENT INTERVIEW WITH THE EMPLOYING AGENCY, WE WOULD HAVE NO OBJECTION TO THE AGENCY PAYING THE TRAVEL EXPENSES OF AN ELIGIBLE TO THAT POSITION INCIDENT TO AN INTERVIEW.

WE RECOGNIZE THAT THE HOLDING IN B-172279, SUPRA, WAS BASED IN PART UPON THE FAILURE OF CONGRESS TO PASS LEGISLATION SPECIFICALLY AUTHORIZING THE PAYMENT OF TRAVEL EXPENSES FOR PREEMPLOYMENT INTERVIEWS FOR PROSPECTIVE APPOINTEES TO THE COMPETITIVE SERVICE. HOWEVER, UPON RECONSIDERATION OF THE LEGISLATIVE HISTORY WE DO NOT BELIEVE THE PAYMENT OF THE PROPOSED INTERVIEWS WOULD BE CONTRARY TO THE INTENT OF THE CONGRESS. IT APPEARS THAT CONGRESS' REFUSAL TO ENACT SUCH LEGISLATION SPRUNG FROM A CONCERN REGARDING THE ABUSES IT FELT SUCH PAYMENTS MAY HAVE ENGENDERED. SEE S. REPORT NO. 2185, 85TH CONG., 2D SESS. 2-3 (1958). OUR INTERPRETATION OF THE LAW HERE, HOWEVER, STRICTLY LIMITS THE PAYMENT OF PREEMPLOYMENT INTERVIEWS TO THOSE FEW HIGH GRADE OR UNIQUE POSITIONS IN THE COMPETITIVE SERVICE FOR WHICH THE COMMISSION BELIEVES IT CANNOT ITSELF FULLY GAUGE THE QUALIFICATIONS OF THE APPLICANTS AND WHERE IT FINDS THAT A FINAL DETERMINATION OF AN APPOINTEE'S QUALIFICATIONS CAN ONLY BE MADE AFTER AN INTERVIEW WITH THE EMPLOYING AGENCY HAS BEEN HELD. THIS CANNOT BE CONSTRUED AS BLANKET AUTHORITY TO PAY PREEMPLOYMENT INTERVIEW TRAVEL EXPENSES TO APPLICANTS OF ALL COMPETITIVE SERVICE POSITIONS. MOREOVER, AS NOTED ABOVE, THE COMMISSION STATED THAT IT WOULD WORK WITH THE AGENCIES TO PREVENT ANY ABUSES IF AUTHORITY WERE GRANTED TO THE AGENCIES TO PAY THE EXPENSES IN QUESTION.

FOR THE ABOVE REASONS, THEREFORE, WE MODIFY OUR DECISIONS AT 31 COMP. GEN. 175, SUPRA, AND B-172279, SUPRA, SO THAT AN AGENCY MAY PAY, IN APPROPRIATE SITUATIONS AS SET OUT ABOVE, THE TRAVEL EXPENSES OF A PROSPECTIVE EMPLOYEE INCURED IN TRAVELING TO A PLACE OF INTERVIEW FOR THE PURPOSE OF PERMITTING THE AGENCY TO DETERMINE THE PROSPECTIVE EMPLOYEE'S QUALIFICATIONS FOR APPOINTMENT TO THE COMPETITIVE SERVICE.