B-174612, JAN 12, 1972

B-174612, JAN 12, 1972

CIVILIAN EMPLOYEE - REIMBURSEMENT - SALE OF RESIDENCE DECISION EXCLUDING REAL ESTATE EXPENSES ON A CLAIM BY MR. WALTER PAJALICH FOR REIMBURSEMENT OF EXPENSES INCURRED IN THE SALE OF A RESIDENCE INCIDENT TO A PERMANENT CHANGE OF OFFICIAL DUTY STATION. SECTION 4.1D OF OMB CIRCULAR NO. A-56 AUTHORIZES REIMBURSEMENT OF SELLING EXPENSES IF THE DWELLING WAS EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY OF A CHANGE IN OFFICIAL DUTY STATION. NEITHER MANUAL RELEASE NO. 1182 NOR A MEMORANDUM BY THE ALLEGED ASSISTANT DIRECTOR, MINERAL SUPPLY, IS SUFFICIENT TO FULFILL THE REQUIREMENT OF NOTIFICATION BY COMPETENT AUTHORITY. AT THE TIME MR. PAJALICH WAS DEFINITELY INFORMED OF HIS TRANSFER, HE WAS NOT RESIDING AT THE DWELLING IN QUESTION. ACCORDINGLY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT ONLY AFTER ELIMINATION OF THE REAL ESTATE EXPENSES.

TO MR. ASHLEY L. HOWELL:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 18, 1971, WITH ENCLOSURES, REQUESTING OUR DECISION AS TO WHETHER THE ENCLOSED VOUCHER IN THE AMOUNT OF $5,702.99 IN FAVOR OF MR. WALTER PAJALICH, AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, BUREAU OF MINES, MAY BE CERTIFIED FOR PAYMENT UNDER THE CIRCUMSTANCES AS HEREINAFTER RELATED. YOUR DOUBT IN THE MATTER IS CONCERNED WITH INCLUSION OF REAL ESTATE EXPENSES ($4,600.90) IN THE VOUCHER RELATED TO THE SALE OF THE EMPLOYEE'S FORMER RESIDENCE IN ORINDA, CALIFORNIA.

THE RECORD SHOWS THAT ON NOVEMBER 17, 1970, MR. PAJALICH WAS REQUESTED TO EXECUTE CERTAIN PAPERS INCLUDING AN EMPLOYMENT AGREEMENT FORM IN CONNECTION WITH HIS TRANSFER TO WASHINGTON, D.C. THEREAFTER, BY TRAVEL ORDER NO. 401-T-9101098-A, DATED JANUARY 25, 1971, MR. PAJALICH WAS AUTHORIZED TO EFFECT A PERMANENT CHANGE OF OFFICIAL DUTY STATION FROM SAN FRANCISCO, CALIFORNIA, TO WASHINGTON, D.C., WITH TRAVEL TO BEGIN ON OR ABOUT FEBRUARY 16, 1971, AND ENDING ON OR ABOUT FEBRUARY 25, 1971.

THE RECORD FURTHER INDICATES THAT MR. PAJALICH HAD OWNED A DWELLING AT 9 SOULE ROAD, ORINDA, CALIFORNIA, WHICH APPEARS TO HAVE BEEN HIS PLACE OF ACTUAL RESIDENCE FROM 1969 UNTIL JULY 1, 1970. ON SUCH LATTER DATE HE BEGAN RESIDING IN AN APARTMENT IN SAN FRANCISCO, CALIFORNIA. SUBSEQUENTLY, A SALE OF THE ORINDA DWELLING WAS CONSUMMATED ON JUNE 16, 1971.

IN THE SUBMITTED VOUCHER, MR. PAJALICH CLAIMS REIMBURSEMENT FOR REAL ESTATE EXPENSES WHICH WERE INCURRED BY THE SALE OF THE ORINDA HOME. APPEARS TO BE HIS POSITION THAT AT THE TIME OF HIS FIRST BEING INFORMED OF THE TRANSFER, HIS ACTUAL RESIDENCE WAS IN FACT THE DWELLING IN ORINDA, CALIFORNIA. IT IS MR. PAJALICH'S CONTENTION THAT ON OR ABOUT APRIL 20, 1970, WHILE HE WAS STILL LIVING IN THE ABOVE HOUSE, HE WAS FIRST INFORMED OF HIS TRANSFER BY VIRTUE OF MANUAL RELEASE NO. 1182 WHICH WAS ISSUED BY THE DEPARTMENT OF THE INTERIOR ON APRIL 1, 1970. THIS MANUAL INDICATES THAT THE MINERAL SUPPLY OFFICE, SAN FRANCISCO, CALIFORNIA, WHERE MR. PAJALICH WAS STATIONED, WAS TO BE DISCONTINUED AS AN OPERATIONAL OFFICE. HENCE, BY IMPLICATION, MR. PAJALICH CONTENDS THAT HE FIRST KNEW OF HIS IMPENDING TRANSFER VIA THE INFORMATION CONTAINED IN MANUAL RELEASE NO. 1182, WELL BEFORE THE DATE OF THE SPECIFIC INFORMATION TO THAT EFFECT CONTAINED IN THE LETTER OF NOVEMBER 17, 1970. HE HAS ALSO SUBMITTED FOR THE RECORD A STATEMENT DATED SEPTEMBER 20, 1971, BY MR. SHELDON P. WIMPFEN, ASSISTANT DIRECTOR, MINERAL SUPPLY, STATING THAT ON OR ABOUT APRIL 20, 1970, ARRANGEMENTS WERE MADE WITH MR. PAJALICH VIA TELEPHONE WITH REGARD TO HIS TRANSFER.

WITH REGARD TO THE INSTANT CLAIM, YOU STATE:

"TRAVEL AUTHORIZATION NO. T9101098 DATED JANUARY 25, 1971, ATTACHED TO THE ABOVE VOUCHER PROVIDES FOR THE VARIOUS CLAIMS AND I HAVE NO QUESTIONS REGARDING THE CLAIMS FOR PER DIEM, MILEAGE, TEMPORARY QUARTERS, AND THE COMMUTED RATE SYSTEMS FOR SHIPMENT AND STORAGE OF THE HOUSEHOLD GOODS.

" *** YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER THE EMPLOYEE IS ENTITLED TO FULL REIMBURSEMENT FOR THE REAL ESTATE EXPENSES OF BROKERAGE FEE, STATE REVENUE STAMPS, ABSTRACT CHARGES, AND TERMITE INSPECTION IN CONNECTION WITH THE SALE OF DWELLING AT THE OLD OFFICIAL STATION. IF THE ANSWER TO THE PREVIOUS QUESTIONS IS IN THE NEGATIVE, WOULD THE EMPLOYEE BE ENTITLED TO FIFTY PERCENT OF THE CLAIM BECAUSE OF THE CALIFORNIA COMMUNITY PROPERTY LAW."

AS A PREREQUISITE TO THE REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED INCIDENT TO A CHANGE OF STATIONS, SECTION 4.1D OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 STATES:

"D. OCCUPANCY REQUIREMENTS. THE DWELLING FOR WHICH REIMBURSEMENT OF SELLING EXPENSES IS CLAIMED WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION."

IN THE PRESENT CASE, THE DETERMINING FACTOR IS WHETHER THE MANUAL RELEASE AND/OR MR. WIMPFEN'S STATEMENT MAY BE REGARDED AS NOTIFICATION BY COMPETENT AUTHORITY THAT MR. PAJALICH WAS TO BE TRANSFERRED TO A NEW OFFICIAL DUTY STATION.

NOWHERE IN MANUAL RELEASE NO. 1182 IS THERE STATED THE EFFECTIVE DATE OF THE REORGANIZATION TO WHICH MR. PAJALICH CONTENDS IS THE NOTIFICATION OF HIS TRANSFER. IN THIS REGARD, YOUR ATTENTION IS INVITED TO PART 115.5- 2A(5) OF THE ABOVE-REFERENCED MANUAL WHICH INDICATES THAT A SAN FRANCISCO OFFICE WAS TO BE ESTABLISHED AT WHICH MR. PAJALICH COULD HAVE BEEN ASSIGNED. IN THE ALTERNATIVE, PART 115.4.2E(3)(F) INDICATES THE CONTEMPLATED ESTABLISHMENT OF AN OFFICE IN ALMEDA, CALIFORNIA, LOCATED CLOSER TO THE ORINDA HOUSE AND APPROXIMATELY 15 MILES FROM SAN FRANCISCO. THE FOREGOING INDICATES THAT MANUAL RELEASE NO. 1182 WAS SIGNIFICANTLY LESS THAN A FIRM INDICATION THAT MR. PAJALICH WOULD BE INVOLVED IN A TRANSFER FROM THE SAN FRANCISCO METROPOLITAN AREA IN THE THEN IMMEDIATE FUTURE WHICH WOULD NECESSITATE THE SALE OF HIS ORINDA HOME. CF: 48 COMP. GEN. 395 (1968); B-165943, FEBRUARY 17, 1969; AND B-170530, NOVEMBER 13, 1970, COPIES ENCLOSED. IN SUCH LIGHT, MANUAL RELEASE NO. 1182 CANNOT BE HELD TO HAVE INFORMED MR. PAJALICH DEFINITELY OF HIS TRANSFER.

WITH REGARD TO MR. WIMPFEN'S MEMORANDUM, WE HAVE BEEN INFORMALLY ADVISED BY THE BUREAU OF MINES THAT MR. WIMPFEN WAS NOT AN EMPLOYEE WITH THE BUREAU AT THE TIME MR. PAJALICH CLAIMS HE FIRST WAS NOTIFIED OF THE TRANSFER. HENCE, WE DO NOT UNDERSTAND THE CIRCUMSTANCE ON WHICH SUCH MEMORANDUM WAS PREDICATED. WE HAVE ALSO BEEN ADVISED THAT AT THE TIME MR. PAJALICH CLAIMS HE RECEIVED NOTIFICATION OF THE TRANSFER, IT WAS THE POLICY OF THE BUREAU OF MINES THAT ALL TRANSFERS OF PERSONNEL IN THE GS-13 OR ABOVE PAY LEVELS BE APPROVED BY THE ASSISTANT SECRETARY OF MINERAL RESOURCES. ON THE BASIS OF THE PRESENT RECORD, MR. WIMPFEN'S MEMORANDUM MAY NOT BE ACCEPTED AS EVIDENCE THAT MR. PAJALICH WAS MADE AWARE OF HIS TRANSFER IN APRIL 1970.

IN VIEW OF THE FOREGOING, WE MUST REGARD MR. PAJALICH AS NOT BEING DEFINITELY INFORMED OF HIS TRANSFER UNTIL NOVEMBER 17, 1970. AT THAT TIME, IT CANNOT BE SAID THAT THE ORINDA, CALIFORNIA, HOME WAS MR. PAJALICH'S ACTUAL RESIDENCE. THIS IS SO BECAUSE THE EMPLOYEE, AS PREVIOUSLY INDICATED, HAD MOVED INTO AN APARTMENT ON JULY 1, 1970. MOREOVER, IT MAY BE THAT SUCH MOVE PRIMARILY RESULTED FROM MR. PAJALICH'S PENDING DIVORCE, THE FINAL JUDGMENT IN CONNECTION THEREWITH HAVING BEEN ENTERED ON AUGUST 13, 1970.

THE VOUCHER, WITH ACCOMPANYING PAPERS, IS RETURNED AND MAY BE CERTIFIED FOR PAYMENT ONLY AFTER ELIMINATION OF THE REAL ESTATE EXPENSES THEREFROM AND IF OTHERWISE CORRECT.