B-114898, JUL 31, 1975

B-114898, JUL 31, 1975

1. FOR PURPOSE OF ALLOWING REIMBURSEMENT FOR RELOCATION EXPENSES, DETERMINATION UNDER 5 U.S.C. SEC. 5724(I) OF WHETHER EMPLOYEE WHO WAS SEPARATED FOR CAUSE PRIOR TO COMPLETING 12 MONTHS OF GOVERNMENT SERVICE AFTER HIS TRANSFER WAS SEPARATED FOR REASONS BEYOND HIS CONTROL IS PRIMARILY FOR DETERMINATION BY THE AGENCY CONCERNED. ALTHOUGH FORM OF SEPARATION IS MERELY ONE FACTOR FOR CONSIDERATION IN SUCH DETERMINATION, IT APPEARS THAT REMOVAL FOR VIOLATING TREASURY MINIMUM STANDARDS OF CONDUCT IS A REASON WITHIN EMPLOYEE'S CONTROL. 2. FOR PURPOSE OF ALLOWING REIMBURSEMENT FOR RELOCATION EXPENSES, DETERMINATION UNDER 5 U.S.C. SEC. 5724(I) OF WHETHER EMPLOYEE WHO WAS SEPARATED FOR CAUSE PRIOR TO COMPLETING 12 MONTHS OF GOVERNMENT SERVICE AFTER HIS TRANSFER WAS SEPARATED FOR REASONS ACCEPTABLE TO AGENCY IS PRIMARILY FOR DETERMINATION BY AGENCY CONCERNED. HOWEVER, IT DOES NOT APPEAR THAT SEPARATION FOR VIOLATING TREASURY MINIMUM STANDARDS OF CONDUCT CAN BE CONSIDERED ACCEPTABLE TO THE AGENCY.

RELOCATION EXPENSES - FAILURE TO FULFILL SERVICE AGREEMENT:

THIS ACTION CONCERNS THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER REPRESENTING RELOCATION EXPENSES INCURRED BY A FORMER EMPLOYEE OF THE CUSTOMS SERVICE WHO WAS SEPARATED FOR CAUSE PRIOR TO COMPLETING THE REQUIRED 12 MONTHS OF GOVERNMENT SERVICE FOLLOWING HIS TRANSFER.

ON MARCH 18, 1973, THE EMPLOYEE WAS TRANSFERRED FROM THE DEPARTMENT OF AGRICULTURE, VERNON, CALIFORNIA, TO THE CUSTOMS SERVICE, SAN YSIDRO, CALIFORNIA. INCIDENT TO THIS TRANSFER, HE WAS AUTHORIZED REIMBURSEMENT BY THE CUSTOMS SERVICE FOR HIS TRAVEL, TRANSPORTATION, AND RELOCATION EXPENSES. AS REQUIRED BY 5 U.S.C. SEC. 5724(I) (1970) AND THE IMPLEMENTING REGULATIONS, SECTION 1.5A OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED AUGUST 17, 1971, NOW FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 2-1.5 (MAY 1973), THE EMPLOYEE SIGNED AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS TRANSFER UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY CONCERNED.

ON MAY 9, 1973, THE EMPLOYEE WAS APPREHENDED ATTEMPTING TO SMUGGLE AN ILLEGAL ALIEN INTO THE UNITED STATES. HE ADMITTED TO CUSTOMS AND IMMIGRATION AGENTS THAT HE KNEW THAT HIS ACTIONS WERE IN VIOLATION OF THE LAW. HE WAS CHARGED BY A UNITED STATES MAGISTRATE WITH CERTAIN VIOLATIONS OF THE U.S.C. AND ON JULY 25, 1973, HE ENTERED A GUILTY PLEA. HE WAS GIVEN A 6 MONTHS SUSPENDED SENTENCE AND 3 YEARS PROBATION.

ON SEPTEMBER 7, 1973, THE EMPLOYEE WAS NOTIFIED OF THE INTENT OF THE CUSTOMS SERVICE TO REMOVE HIM FROM HIS POSITION BASED ON CHARGES OF VIOLATING VARIOUS PROVISIONS OF THE TREASURY PERSONNEL MANUAL RELATING TO MINIMUM STANDARDS OF CONDUCT. AFTER RESPONDING TO THESE CHARGES ON OCTOBER 25, 1973, THE EMPLOYEE WAS SEPARATED FROM THE CUSTOMS SERVICE ON DECEMBER 3, 1973.

ON SEPTEMBER 11, 1974, THE EMPLOYEE FILED A TRAVEL VOUCHER REPRESENTING TRAVEL, TEMPORARY QUARTERS, AND MISCELLANEOUS EXPENSES INCURRED BY HIM INCIDENT TO HIS TRANSFER. HOWEVER, SINCE THE EMPLOYEE SIGNED AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS TRANSFER AND HE WAS SEPARATED PRIOR TO COMPLETING THIS PERIOD OF SERVICE, THE CUSTOMS SERVICE HAS REQUESTED A DECISION AS TO WHETHER THE VOUCHER SHOULD BE CERTIFIED FOR PAYMENT. SPECIFICALLY, THE FOLLOWING QUESTIONS HAVE BEEN ASKED:

1. DOES AN INVOLUNTARY REMOVAL FOR VIOLATING THE MINIMUM STANDARDS OF CONDUCT PROVISIONS OF THE TREASURY PERSONNEL MANUAL CONSTITUTE A REASON WITHIN THE EMPLOYEE'S CONTROL?

2. WOULD AN EMPLOYEE'S INVOLUNTARY REMOVAL FOR VIOLATING THE MINIMUM STANDARDS OF CONDUCT PROVISIONS OF THE TREASURY PERSONNEL MANUAL CONSTITUTE A REASON ACCEPTABLE TO THE CUSTOMS SERVICE?

FIRST, IT SHOULD BE NOTED THAT THE QUESTION OF WHETHER AN EMPLOYEE WAS SEPARATED FOR A REASON BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY IS A MATTER PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED. OUR OFFICE WOULD QUESTION AN AGENCY'S DETERMINATION IN THESE CIRCUMSTANCES ONLY IF NO REASONABLE BASIS EXISTS FOR THE DETERMINATION. -165910, FEBRUARY 10, 1969.

CONCERNING THE QUESTION OF WHETHER THE EMPLOYEE'S SEPARATION WAS FOR A REASON BEYOND HIS CONTROL, WE DO NOT BELIEVE THAT A SEPARATION FOR CAUSE BASED ON IMPROPER CONDUCT COULD GENERALLY BE DETERMINED TO BE A SEPARATION FOR A REASON BEYOND THE CONTROL OF THE EMPLOYEE. ALSO, THE FORM OF THE SEPARATION - RESIGNATION RATHER THAN FACE CHARGES OR INVOLUNTARY REMOVAL FOR CAUSE - IS MERELY ONE FACTOR TO BE CONSIDERED, AND IS NOT DETERMINATIVE OF THE QUESTION OF WHETHER THE SEPARATION WAS FOR A REASON BEYOND THE EMPLOYEE'S CONTROL. SEE 47 COMP. GEN. 503 (1968). THE FACT THAT THE EMPLOYEE MAY HAVE HAD LITTLE CONTROL OVER THE SEPARATION ITSELF DOES NOT NECESSARILY MEAN THAT HE HAD NO CONTROL OVER THE EVENTS OR REASONS WHICH RESULTED IN THE SEPARATION. IN THE PRESENT CASE IT IS CLEAR THAT THE EMPLOYEE HAD LITTLE CONTROL OVER HIS SEPARATION. ALTHOUGH THE RECORD DOES NOT INDICATE IN DETAIL THE CIRCUMSTANCES INVOLVED, IT APPEARS THAT THE EMPLOYEE'S ACTIONS WHICH RESULTED IN HIS SEPARATION FOR CAUSE WERE WITHIN HIS CONTROL. ACCORDINGLY, UNLESS DETERMINED OTHERWISE BY THE CUSTOMS SERVICE ON THE BASIS OF FACTS NOT CONTAINED IN THE PRESENT RECORD, WE DO BELIEVE THAT THE EMPLOYEE'S SEPARATION FOR VIOLATING THE TREASURY MINIMUM STANDARDS OF CONDUCT MAY BE REGARDED AS BEING FOR A REASON WITHIN HIS CONTROL FOR THE PURPOSE OF 5 U.S.C. SEC. 5724(I) (1970) AND THE IMPLEMENTING REGULATIONS.

CONCERNING THE SECOND QUESTION, THE FACT THAT THE REASON FOR THE SEPARATION IS ACCEPTED BY THE AGENCY FOR THE PURPOSE OF THE EMPLOYEE'S SEPARATION DOES NOT NECESSARILY MEAN THAT SUCH REASON IS ACCEPTABLE TO THE AGENCY FOR THE PURPOSE OF 5 U.S.C. SEC. 5724(I) (1970) AND THE IMPLEMENTING REGULATIONS. AGAIN, THE DETERMINATION OF WHETHER THE REASON IS ACCEPTABLE FOR THIS PURPOSE IS PRIMARILY WITHIN THE DISCRETION OF THE AGENCY. 47 COMP. GEN. 503, SUPRA. HOWEVER, IT IS DOUBTFUL THAT THE REASON FOR THE SEPARATION CAN BE CONSIDERED ACCEPTABLE TO THE AGENCY FOR THIS PURPOSE WHEN THE REASON FOR THE SEPARATION IS A VIOLATION OF AN AGENCY'S MINIMUM STANDARDS OF CONDUCT.