B-172742, JUL 20, 1971, 51 COMP GEN 52

B-172742, JUL 20, 1971, 51 COMP GEN 52

OFFICERS AND EMPLOYEES - TRANSFERS - BREAK IN SERVICE - EXPENSE ENTITLEMENT AN EMPLOYEE WHO RESIGNED FROM THE FEDERAL BUREAU OF INVESTIGATION BEFORE THE EXPIRATION OF A 12-MONTH SERVICE PERIOD FOLLOWING A TRANSFER OF OFFICIAL DUTY STATION AND ACCEPTED EMPLOYMENT WITH ANOTHER BUREAU IN THE DEPARTMENT OF JUSTICE AFTER A 15-DAY BREAK IN SERVICE IS LIABLE FOR THE REFUND OF TRANSFER COSTS DISBURSED TO HIM UNDER 5 U.S.C. 5724(I), AND THE MONIES COLLECTED FROM HIM MAY NOT BE REIMBURSED ON THE BASIS OF FINN V UNITED STATES, 192 CT. CL. 814, WHICH HOLDS "GOVERNMENT SERVICE" AS USED IN SECTION 5724(I) IS NOT SYNONYMOUS WITH AGENCY SERVICE SINCE THAT RULING DOES NOT APPLY WHEN THERE IS A BREAK IN SERVICE FOR THEN THE GOVERNMENT'S OBLIGATION FOR "TRANSFER" EXPENSES COULD NOT BE DEFINITELY ESTABLISHED AS THE OBLIGATION WOULD BE DEPENDENT UPON WHETHER OR NOT THE SEPARATED EMPLOYEE EVENTUALLY RETURNED TO GOVERNMENT SERVICE.

TO MAURICE F. ROW, UNITED STATES DEPARTMENT OF JUSTICE, JULY 20, 1971:

THIS REFERS TO YOUR LETTER OF APRIL 22, 1971, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER A VOUCHER PRESENTED BY MR. WILLIAM V. FERRIS MAY BE PROPERLY CERTIFIED FOR PAYMENT. THE VOUCHER REPRESENTS A CLAIM, BASED UPON THE COURT OF CLAIMS DECISION FINN V UNITED STATES, 192 CT. CL. 814 (1970), FOR A REFUND OF MONIES COLLECTED WHEN THE EMPLOYEE RESIGNED FROM THE FEDERAL BUREAU OF INVESTIGATION (FBI) BEFORE THE EXPIRATION OF A 12-MONTH SERVICE PERIOD FOLLOWING A TRANSFER OF OFFICIAL DUTY STATION. SHORTLY AFTER MR. FERRIS' RESIGNATION HE ACCEPTED EMPLOYMENT WITH ANOTHER BUREAU IN THE DEPARTMENT OF JUSTICE. YOUR DOUBT IN THE MATTER ARISES BECAUSE OF A BREAK IN SERVICE OF APPROXIMATELY 15 DAYS IN HIS CONTINUOUS EMPLOYMENT.

YOUR LETTER INDICATES THAT INCIDENT TO MR. FERRIS' OFFICIAL TRANSFER FROM WASHINGTON, D.C., TO MILWAUKEE, WISCONSIN, HE WAS REQUIRED TO SIGN A SERVICE AGREEMENT DIRECTING HIM TO REMAIN IN THE SERVICE OF FBI FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER OR BECOME LIABLE TO REFUND THOSE SUMS DISBURSED TO HIM FOR HIS COSTS RELATED TO THE TRANSFER. HIS TRANSFER TO MILWAUKEE WAS EFFECTIVE JULY 9, 1969, AND HE RESIGNED FROM FBI ON OCTOBER 31, 1969. THE RECORD DOES NOT SHOW THE REASON FOR THE RESIGNATION AND BREAK IN SERVICE BEFORE REEMPLOYMENT IN THE GOVERNMENT. AT THAT TIME, YOU STATE, HE WAS DIRECTED TO AND DID IN FACT REFUND THE AMOUNT OF $1,332.13.

AS YOU RECOGNIZE, THE RELEVANT STATUTE HERE IS 5 U.S.C. 5724(I) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

*** AN AGENCY MAY PAY TRAVEL AND TRANSPORTATION EXPENSES *** AND OTHER RELOCATION ALLOWANCES UNDER THIS SECTION *** WHEN AN EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES ONLY AFTER THE EMPLOYEE AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE AGENCY CONCERNED. IF THE EMPLOYEE VIOLATES THE AGREEMENT THE MONEY SPENT BY THE UNITED STATES FOR THE EXPENSES AND ALLOWANCES IS RECOVERABLE FROM THE EMPLOYEE AS A DEBT DUE THE UNITED STATES.

THE FINN CASE HELD THAT UNDER THE ABOVE STATUTE AN AGENCY OF THE GOVERNMENT DOES NOT HAVE AUTHORITY TO REQUIRE AN EMPLOYEE TO SIGN AN AGREEMENT TO REMAIN IN THE SERVICE OF A PARTICULAR AGENCY, AS CONTRASTED TO REMAINING IN THE GOVERNMENT SERVICE GENERALLY, FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS OFFICIAL TRANSFER. THE DECISION STRESSES THAT CONGRESS DID NOT INTEND FOR "GOVERNMENT SERVICE" AS USED IN THE APPLICABLE STATUTE TO BE SYNONYMOUS WITH AGENCY SERVICE. OUR OFFICE HAS FOLLOWED THIS DECISION INSOFAR AS IT APPLIES TO SIMILAR FACTUAL CIRCUMSTANCES. SEE B-171238, DECEMBER 8, 1970, AND DECISIONS CITED THEREIN.

NEITHER FINN NOR ANY OF OUR SUBSEQUENT DECISIONS CONSIDERED THE QUESTION OF ENTITLEMENT WHERE THERE IS A BREAK IN SERVICE DURING THE 12 MONTH PERIOD. WE HAVE HELD THE VIEW THAT, AS A GENERAL RULE, SUCH REQUIRED PERIOD OF SERVICE MUST BE PERFORMED CONTINUOUSLY WITHOUT A BREAK IN SERVICE. OTHERWISE, THE GOVERNMENT'S OBLIGATION WITH RESPECT TO THE VARIOUS "TRANSFER" EXPENSES WOULD NOT BE DEFINITELY ESTABLISHED SINCE SUCH OBLIGATION WOULD BE DEPENDENT UPON WHETHER OR NOT THE SEPARATED EMPLOYEE EVENTUALLY RETURNED TO GOVERNMENT SERVICE AT A LATER DATE.

SINCE MR. FERRIS RESIGNED HIS POSITION WITH THE FBI ON OCTOBER 31, 1969, AND DID NOT ENTER ON DUTY WITH THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS UNTIL NOVEMBER 16, 1969, HE DID NOT PERFORM 12 MONTHS OF CONTINUOUS SERVICE WITH THE GOVERNMENT FOLLOWING HIS TRANSFER TO MILWAUKEE. THEREFORE, IN THE ABSENCE OF A REDUCTION IN FORCE OR TRANSFER OF FUNCTION (5 U.S.C. 5724AC)) OR A VIOLATION OF A REGULATION OR POLICY WHICH MIGHT FORM THE BASIS FOR REGARDING THE SEPARATION AS A TRANSFER, WE MUST CONCLUDE THAT HE DID NOT FULFILL THE TERMS OF HIS EMPLOYMENT AGREEMENT AND IS NOT ENTITLED TO RECOUP THE TRAVEL EXPENSES REFUNDED TO THE FBI AT THE TIME OF HIS RESIGNATION. THE VOUCHER RETURNED HEREWITH MAY NOT BE PROPERLY CERTIFIED FOR PAYMENT.