B-129648, JUN. 4, 1965

B-129648: Jun 4, 1965

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RAMSEY'S "TRANSFER" WAS PRIMARILY FOR HIS OWN CONVENIENCE OR FOR THE BENEFIT OF THE GOVERNMENT. WE POINT OUT THAT UNDER THE LAW THE QUESTION IS NOT ONLY WHETHER SUCH CHANGE OF EMPLOYMENT PRIMARILY WAS IN THE INTEREST AND FOR THE CONVENIENCE OF THE GOVERNMENT BUT WHETHER IT WAS AT THE EMPLOYEE'S REQUEST. CONCERNING THIS MATTER INDICATES THE DETERMINATION BY THE AIR FORCE BASE THAT THE TRANSFER WAS FOR THE EMPLOYEE'S CONVENIENCE IS NOT SUBJECT TO REVIEW AND YOU ASK WHETHER THIS IS OUR POSITION. " IS CONTAINED IN 5 U.S.C. 73B-1 (A). THE THIRD PROVISO THEREOF IS AS FOLLOWS: "* * * PROVIDED FURTHER. DEPARTMENT OF STATE) SHALL BE ALLOWED OR PAID FROM GOVERNMENT FUNDS WHERE THE TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST * * *" IN A SUPPLEMENTAL REPORT DATED APRIL 3.

B-129648, JUN. 4, 1965

TO MR. J. F. GRINER, NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES:

YOUR LETTER OF MAY 7, 1965, REFERENCE 4P/L-1764, IN BEHALF OF MR. THOMAS C. RAMSEY, ASKS CERTAIN QUESTIONS, SET OUT BELOW, CONCERNING THE TRAVELING AND TRANSPORTATION EXPENSES INCURRED BY MR. RAMSEY INCIDENT TO HIS MOVING FROM NORTON AIR FORCE BASE TO TRAVIS AIR FORCE BASE IN 1962.

YOU SAY THE CRUX OF THE PROBLEM APPEARS TO BE WHETHER MR. RAMSEY'S "TRANSFER" WAS PRIMARILY FOR HIS OWN CONVENIENCE OR FOR THE BENEFIT OF THE GOVERNMENT. HOWEVER, WE POINT OUT THAT UNDER THE LAW THE QUESTION IS NOT ONLY WHETHER SUCH CHANGE OF EMPLOYMENT PRIMARILY WAS IN THE INTEREST AND FOR THE CONVENIENCE OF THE GOVERNMENT BUT WHETHER IT WAS AT THE EMPLOYEE'S REQUEST, AND WHETHER SUCH CHANGE HAS BEEN AUTHORIZED OR APPROVED AT GOVERNMENT EXPENSE BY THE AGENCY CONCERNED.

YOU SAY OUR LETTER OF DECEMBER 12, 1962, CONCERNING THIS MATTER INDICATES THE DETERMINATION BY THE AIR FORCE BASE THAT THE TRANSFER WAS FOR THE EMPLOYEE'S CONVENIENCE IS NOT SUBJECT TO REVIEW AND YOU ASK WHETHER THIS IS OUR POSITION. ALSO, YOU ASK WHY THOSE WHO USED THEIR OWN INITIATIVE AND TRANSFERRED PRIOR TO THE FORMAL ANNOUNCEMENT SHOULD BE TREATED DIFFERENTLY THAN THOSE WHO TRANSFERRED AFTER THE FORMAL ANNOUNCEMENT OF THE TRANSFER OF THE FUNCTION.

THE LAW GOVERNING PAYMENT OF EXPENSES OF TRANSFER OF A CIVILIAN EMPLOYEE'S OFFICIAL STATION "IN THE INTEREST OF THE GOVERNMENT," IS CONTAINED IN 5 U.S.C. 73B-1 (A). IN ADDITION TO THE REQUIREMENT THEREIN THAT THE EXPENSE OF THE TRANSFER BE "AUTHORIZED OR APPROVED" BY THE APPROPRIATE OFFICIAL OF THE DEPARTMENT CONCERNED, THE THIRD PROVISO THEREOF IS AS FOLLOWS:

"* * * PROVIDED FURTHER, THAT NO PART OF SUCH EXPENSES (INCLUDING THOSE OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, DEPARTMENT OF STATE) SHALL BE ALLOWED OR PAID FROM GOVERNMENT FUNDS WHERE THE TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST * * *"

IN A SUPPLEMENTAL REPORT DATED APRIL 3, 1963, THE DEPARTMENT OF THE AIR FORCE REVIEWED MR. RAMSEY'S SITUATION AT THE TIME IN QUESTION AND GAVE US A DETAILED EXPLANATION. THE REPORT SAYS THAT SOME ADVANCE PUBLICITY ON THE THEN PROBABLE TRANSFER OF CERTAIN FUNCTIONS FROM NORTON AIR FORCE BASE TO WARNER-ROBINS AIR FORCE BASE, GEORGIA, CAUSED A NUMBER OF NORTON EMPLOYEES TO SECURE OTHER JOBS ON THEIR OWN INITIATIVE. SUCH CHANGES OF EMPLOYMENT OCCURRED BEFORE THE OFFICIAL ANNOUNCEMENT OF THE PRECISE FUNCTIONS TO BE TRANSFERRED TO WARNER ROBINS AND THE IDENTIFICATION OF THE NORTON EMPLOYEES WHO WOULD BE INVOLVED.

THE DEPARTMENT REPORTS THAT IN MAY AND JUNE 1962, 14 EMPLOYEES--- INCLUDING MR. RAMSEY--- OBTAINED JOBS ON THEIR OWN INITIATIVE AT TRAVIS AIR FORCE BASE. AT THAT TIME THERE WAS NO AGREEMENT TO ALLOW TRANSPORTATION AT GOVERNMENT EXPENSE, AND NO TRAVEL ORDERS WERE ISSUED BY EITHER THE RELEASING OR THE RECEIVING INSTALLATIONS.

AFTER IDENTIFICATION OF THE FUNCTIONS TO BE TRANSFERRED AND THE EMPLOYEES INVOLVED, ON JULY 9, 1962, NORTON AIR FORCE BASE ANNOUNCED THE PLACEMENT PROGRAM WHEREUNDER THE EMPLOYEES THEN ON THAT INSTALLATION'S ROLLS, AND WHO WERE WILLING TO ACCEPT OFFERS FROM OTHER INSTALLATIONS IN THE CALIFORNIA AREA RATHER THAN TRANSFER WITH THE FUNCTIONS GOING TO GEORGIA, WERE TO BE AUTHORIZED TRANSPORTATION AT GOVERNMENT EXPENSE. THEREUPON, THE LISTS OF VACANCIES AT OTHER INSTALLATIONS IN CALIFORNIA WERE PUBLICIZED TO THE NORTON EMPLOYEES. THE TRANSFERS EFFECTED ON AND AFTER JULY 9 WERE DETERMINED ADMINISTRATIVELY TO BE IN THE INTEREST AND FOR THE CONVENIENCE OF THE GOVERNMENT, AS THEY WERE TO BE IN LIEU OF THE ANNOUNCED TRANSFER OF FUNCTIONS AND PERSONNEL TO GEORGIA. BY VIRTUE OF THEIR ACCEPTANCE OF THAT PROGRAMMED TRANSFER AUTHORITY, AND PURSUANT TO TRAVEL ORDERS AUTHORIZING ALLOWANCE OF EXPENSES, FOUR EMPLOYEES BECAME ENTITLED TO THE TRANSFERS THEY RECEIVED IN AUGUST AND SEPTEMBER 1962 TO TRAVIS AIR FORCE BASE AT GOVERNMENT EXPENSE. IN THIS CONNECTION WE INVITE YOUR ATTENTION, GENERALLY, TO THE COURT OF CLAIMS DECISION IN COLBATH ET AL. V. UNITED STATES, CT.CL. NO. 399-59, DECIDED FEBRUARY 19, 1965, WHEREIN THE COURT UPHELD THE RIGHT OF AN AGENCY TO DISMISS EMPLOYEES WHO REFUSED TO ACCOMPANY THEIR TRANSFERRED FUNCTIONS.

WHEN AN AGENCY'S EXISTING TRANSFER OR REORGANIZATION PLANS INCLUDE THE TRANSFER OF A SPECIFIC EMPLOYEE AND HE HAS DEFINITE AUTHORITATIVE INFORMATION THAT SUCH SPECIFIC OFFICIAL CHANGE OF HIS DUTY STATION IS PENDING BUT HE BEGINS OR COMPLETES TRAVEL TO THE NEW OFFICIAL STATION PRIOR TO RECEIPT OF THE TRAVEL ORDER OR APPROPRIATE WRITTEN APPROVAL, WHICH SUBSEQUENTLY IS ISSUED, WE HAVE CONCURRED IN THE ADMINISTRATIVE ALLOWANCE OF TRAVEL EXPENSES OTHERWISE AUTHORIZED AS HAVING BEEN INCURRED WITHIN THE PURVIEW OF THE LAW INVOLVED AND IN THE LIGHT OF THE FACTS IN A PARTICULAR CASE.

IN MR. RAMSEY'S CASE WE FIND NO CIRCUMSTANCE ESTABLISHING THAT HE MOVED TO TRAVIS AIR FORCE BASE IN ANTICIPATION THAT HE WAS TO RECEIVE OFFICIAL ORDERS TRANSFERRING HIM TO THAT INSTALLATION AT GOVERNMENT EXPENSE. MOREOVER, THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES UPON A TRANSFER OF STATION IS NOT AN ABSOLUTE RIGHT. ADMINISTRATIVE AUTHORIZATION OR APPROVAL IS REQUIRED BEFORE THE GOVERNMENT CAN ASSUME SUCH EXPENSES. THE RECORD IS CLEAR THAT THE REQUIRED ADMINISTRATIVE AUTHORIZATION OR APPROVAL HAS NOT BEEN MADE IN THIS CASE.

AS TO YOUR QUESTION WHETHER EMPLOYEES WHO USED THEIR OWN INITIATIVE TO FIND OTHER JOBS AND LEFT NORTON AIR FORCE BASE DURING MAY AND JUNE 1962 SHOULD BE TREATED DIFFERENTLY FROM THOSE WHO WAITED UNTIL OFFICIAL TRANSFER PLACEMENTS WERE INSTITUTED (IN JULY), WE POINT OUT THAT SUCH A SITUATION UNDER THE LAW DOES NOT DIFFER IN SUBSTANCE FROM THE NUMEROUS INSTANCES IN WHICH AN EMPLOYEE MAY SEEK A CHANGE OF EMPLOYMENT FOR PERSONAL REASONS. MANY EMPLOYEES MAY HEAR (RUMOR, LARGELY) THAT THEIR AGENCY IS PLANNING A REDUCTION IN FORCE, OR IS SEEKING AUTHORITY OR APPROPRIATIONS TO MOVE TO ANOTHER AREA, BUT OFFICIAL ORDERS OR FUNDS AND SPECIFICATIONS HAVE NOT BEEN ISSUED--- OR ARE NOT ISSUED UNTIL AFTER SEVERAL MONTHS, AS IN THIS CASE. HOWEVER, SUCH POSSIBLE REORGANIZATIONAL INFORMATION WOULD NOT WARRANT THE EMPLOYEES OF THE AGENCY TO CONCLUDE THAT THEY ARE OR WILL BE AUTHORIZED, OR SHOULD EXPECT FROM THE GOVERNMENT, REIMBURSEMENT OF THE COSTS OF THEIR MOVING TO ANY OTHER AREA TO WHICH THEY MIGHT CHOOSE TO GO, EVEN IF THE RECEIVING AGENCY IS WITHIN THE SAME EXECUTIVE DEPARTMENT.

IN THE CIRCUMSTANCES RECITED ABOVE NO BASIS EXISTS UNDER THE STATUTE IN QUESTION FOR OUR OFFICE TO AUTHORIZE ALLOWANCE OF THE EXPENSES INCURRED BY MR. RAMSEY INCIDENT TO HIS MOVING TO TRAVIS AIR FORCE BASE.

WE TRUST THE INFORMATION AND CONCLUSIONS HEREIN STATED WILL HELP TO CLARIFY THIS MATTER FOR YOU.