B-113859, MARCH 2, 1953, 32 COMP. GEN. 383

B-113859, MARCH 2, 1953, 32 COMP. GEN. 383

TRAVELING EXPENSES - TRANSFERS - DEFENSE AGENCY EMPLOYEES TRANSFERRED IN REDUCTION IN FORCE - TRANSFER FOR CONVENIENCE OF GOVERNMENT AN EMPLOYEE WHO ACCEPTED AN APPOINTMENT WITH A DEFENSE AGENCY PURSUANT TO SECTION 1310 (B) OF THE ACT OF NOVEMBER 1, 1951, WHICH PROVIDES FOR FACILITATING THE TRANSFER OF EMPLOYEES FROM NONDEFENSE TO DEFENSE ACTIVITIES WITH RETENTION RIGHTS IN THE NONDEFENSE AGENCY, AND WHO WHEN REACHED FOR REDUCTION IN FORCE IN THE DEFENSE AGENCY LOCATED IN ANOTHER CITY MADE APPLICATION FOR REEMPLOYMENT IN THE NONDEFENSE AGENCY, MAY BE REGARDED AS BEING TRANSFERRED FOR THE CONVENIENCE OF THE GOVERNMENT UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, AND PAID TRAVELING EXPENSES IN CONNECTION WITH THE TRANSFER FROM APPROPRIATION AVAILABLE TO THE NONDEFENSE AGENCY.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, MARCH 2, 1953:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1953, REQUESTING DECISION WHETHER THERE IS ANY CONFLICT BETWEEN SECTION 1 OF THE ACT OF AUGUST 2, 1946 ( PUBLIC LAW 600), 60 STAT. 806, AND 8.201, CHAPTER Z1 238, SUBPART B, RULES AND REGULATIONS, FEDERAL PERSONNEL MANUAL, UNDER THE FACTS SET FORTH HEREINAFTER AND WHETHER THE APPROPRIATION OF YOUR BOARD IS AVAILABLE FOR PAYMENT OF THE TRAVEL EXPENSES INVOLVED.

IT IS STATED THAT AN EMPLOYEE OF YOUR BOARD, ON DUTY IN THE WASHINGTON OFFICE, RECEIVED AN APPOINTMENT AND WAS TRANSFERRED, IN DECEMBER 1951 TO THE SAN FRANCISCO, CALIFORNIA, OFFICE OF THE WAGE STABILIZATION BOARD, THE RIGHT OF REEMPLOYMENT WITH THE NATIONAL LABOR RELATIONS BOARD BEING AUTHORIZED AT THE TIME. THE EMPLOYEE'S SERVICE WITH THAT BOARD IS BEING TERMINATED EFFECTIVE MARCH 6, 1953, DUE TO REDUCTION IN FORCE, AND THE EMPLOYEE, IN THE EXERCISE OF HIS REEMPLOYMENT RIGHTS, REQUESTS A TRANSFER FROM THE REGIONAL OFFICE OF THE WAGE STABILIZATION BOARD IN SAN FRANCISCO TO THE WASHINGTON OFFICE OF YOUR AGENCY.

SECTION 8.201 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

REEMPLOYMENT RIGHTS DEFINED. ANY PERMANENT EMPLOYEE GRANTED REEMPLOYMENT RIGHTS UNDER THIS SUBPART SHALL BE ENTITLED TO BE REEMPLOYED WITH THE STATUS OF A PERMANENT EMPLOYEE, WITHIN THIRTY DAYS OF HIS APPLICATION, BY THE ORIGINAL AGENCY IN WHICH HE WAS GRANTED REEMPLOYMENT RIGHTS IN THE OCCUPATIONAL FIELD AND AT THE SAME GRADE OR LEVEL AND IN THE SAME GEOGRAPHICAL AREA AS THE POSITION WHICH HE LAST HELD ON A PERMANENT BASIS IN THAT AGENCY: * * *

SECTION 1 OF THE ACT OF AUGUST 2, 1946, PROVIDES, IN EFFECT, THAT TRAVEL EXPENSES SHALL BE PAID WHERE AN EMPLOYEE IN THE INTEREST OF THE GOVERNMENT IS TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER INCLUDING TRANSFER FROM ONE DEPARTMENT TO ANOTHER, BUT THAT SUCH EXPENSES SHALL NOT BE ALLOWED WHEN THE TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST.

IT IS ASSUMED THAT THE REEMPLOYMENT RIGHTS HERE INVOLVED WERE GRANTED UNDER SUBPART B REFERRED TO ABOVE, WHICH SUBPART PRESUMABLY WAS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 1310 (B) OF THE ACT OF NOVEMBER 1, 1951, 65 STAT. 757, WHICH READS AS FOLLOWS:

THE CIVIL SERVICE COMMISSION SHALL FACILITATE THE TRANSFER OF FEDERAL EMPLOYEES FROM NONDEFENSE TO DEFENSE ACTIVITIES AND ENCOURAGE THE RETENTION OF EMPLOYEES IN DEFENSE ACTIVITIES, AND SHALL PROVIDE REEMPLOYMENT RIGHTS FOR PERMANENT EMPLOYEES IN THE ACTIVITIES FROM WHICH SUCH EMPLOYEES ARE TRANSFERRED.

BY VIRTUE OF THE LANGUAGE IN SECTION 8.201 AN EMPLOYEE IS REQUIRED TO MAKE APPLICATION OR SUCH REEMPLOYMENT AND HE IS ENTITLED UNDER THE ABOVE SECTION, AMONG OTHER THINGS, TO BE REEMPLOYED BY THE ORIGINAL AGENCY IN THE SAME GEOGRAPHICAL AREA AS THE POSITION AS HE LAST HELD ON A PERMANENT BASIS IN THAT AGENCY.

IN 26 COMP. GEN. 684, IT WAS HELD THAT WHERE, IN CARRYING OUT REDUCTION IN FORCE REGULATIONS, A TRANSFER IS EFFECTED, THE REAL PURPOSE OF THE TRANSFER IS NOT FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE BUT IS TO ENABLE THE DEPARTMENT TO CARRY OUT THE PROGRAM AS REQUIRED BY THE LAW AND REGULATIONS GOVERNING PREFERENCE RETENTION RIGHTS AND THAT, ACCORDINGLY, PAYMENT OF TRAVEL EXPENSES INCURRED IN CONNECTION WITH THE TRANSFER WOULD BE PROPER. HERE, IN AN ANALOGOUS CASE, THE EMPLOYEE IS FULFILLING THE REQUIREMENTS OF THE CIVIL SERVICE REGULATION ISSUED PURSUANT TO A STATUTE, IN MAKING THE REQUEST FOR REEMPLOYMENT. ACCORDINGLY, AND AS NOTHING APPEARS IN THE LEGISLATIVE HISTORY OF SECTION 1 OF THE ACT OF AUGUST 2, 1946, SUPRA, REFLECTING AN INTENT TO PROHIBIT THE AUTHORIZATION OF TRANSFER EXPENSES UNDER THOSE CIRCUMSTANCES, IT IS CONCLUDED THAT NO CONFLICT EXISTS BETWEEN THE CIVIL SERVICE REGULATION AND SECTION 1 OF THE STATUTE. THEREFORE, IF A TRANSFER IS EFFECTED, OTHERWISE PROPER TRAVEL AND TRANSPORTATION EXPENSES INCIDENT THERETO MAY BE AUTHORIZED.

ALSO, SINCE SECTION 1 OF THE ACT OF AUGUST 2, 1946, PROVIDES THAT THE EXPENSES OF INTERAGENCY TRANSFERS SHALL BE PAYABLE FROM THE FUNDS OF THE DEPARTMENT OR AGENCY TO WHICH THE OFFICER OR EMPLOYEE IS TRANSFERRED, PROPERLY AUTHORIZED EXPENSES INCIDENT TO SUCH TRANSFER WOULD BE PAYABLE FROM THE APPROPRIATION OF YOUR AGENCY COVERING SUCH EXPENDITURES. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.