B-132161, JUN. 17, 1957

B-132161: Jun 17, 1957

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YOU REQUESTED OUR DECISION AS TO WHETHER A SELECTION FROM A CIVIL SERVICE REGISTER OF ELIGIBLES OF A PERSON WHO IS PRESENTLY A FEDERAL GOVERNMENT EMPLOYEE IS DEEMED A TRANSFER WITHIN THE MEANING OF THE LANGUAGE CONTAINED IN SECTION 1 (A) OF PUBLIC LAW 600. YOU FURTHER REQUESTED OUR DECISION AS TO WHETHER SUCH A TRANSFER IS DEEMED TO BE IN THE INTEREST OF THE FEDERAL GOVERNMENT WITHIN THE MEANING OF THE ABOVE-MENTIONED STATUTE SO AS TO PERMIT THE PAYMENT BY THE GOVERNMENT OF THE EXPENSE OF TRAVEL AND TRANSPORTATION OF HOUSEHOLD EFFECTS. OR WHETHER IT IS DEEMED TO BE FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST WITHIN THE MEANING OF THE PROVISION OF THE STATUTE WHICH PROHIBITS THE PAYMENT OF SUCH EXPENSES.

B-132161, JUN. 17, 1957

TO HONORABLE LEONARD CARMICHAEL, SECRETARY, SMITHSONIAN INSTITUTION:

ON JUNE 11, 1957, YOU REQUESTED OUR DECISION AS TO WHETHER A SELECTION FROM A CIVIL SERVICE REGISTER OF ELIGIBLES OF A PERSON WHO IS PRESENTLY A FEDERAL GOVERNMENT EMPLOYEE IS DEEMED A TRANSFER WITHIN THE MEANING OF THE LANGUAGE CONTAINED IN SECTION 1 (A) OF PUBLIC LAW 600, 79TH CONGRESS, AS AMENDED, 5 U.S.C. 73B-1. IN THE EVENT OF AN AFFIRMATIVE ANSWER THERETO, YOU FURTHER REQUESTED OUR DECISION AS TO WHETHER SUCH A TRANSFER IS DEEMED TO BE IN THE INTEREST OF THE FEDERAL GOVERNMENT WITHIN THE MEANING OF THE ABOVE-MENTIONED STATUTE SO AS TO PERMIT THE PAYMENT BY THE GOVERNMENT OF THE EXPENSE OF TRAVEL AND TRANSPORTATION OF HOUSEHOLD EFFECTS, OR WHETHER IT IS DEEMED TO BE FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST WITHIN THE MEANING OF THE PROVISION OF THE STATUTE WHICH PROHIBITS THE PAYMENT OF SUCH EXPENSES.

YOU SAY THAT SEVERAL WEEKS AGO THE SMITHSONIAN INSTITUTION REQUESTED THE CIVIL SERVICE COMMISSION TO CERTIFY ELIGIBLES FOR THE POSITION OF PUBLICATIONS WRITER, G-11. THE CERTIFICATE SUBSEQUENTLY RECEIVED LISTED FIVE ELIGIBLES, SOME OF WHOM WERE EMPLOYED IN THE FEDERAL SERVICE. RESPONSE TO AN INQUIRY AS TO AVAILABILITY, FOUR OF THESE ELIGIBLES INDICATED AVAILABILITY. ON MAY 29, A TELEGRAM WAS SENT TO ONE OF THE ELIGIBLES, A FEDERAL GOVERNMENT EMPLOYEE, ASKING HIM TO REPORT FOR DUTY ON JUNE 24. BY A TELEPHONE CALL, CONFIRMED BY LETTER, THE NOMINEE STATED HE COULD REPORT ON JULY 5, PROVIDED THE SMITHSONIAN INSTITUTION WOULD BEAR THE COST OF TRAVEL FOR HIMSELF AND FAMILY AND TRANSPORTATION OF HOUSEHOLD GOODS FROM HIS PLACE OF RESIDENCE IN MASSACHUSETTS TO WASHINGTON, D.C.

THE STATUTE AUTHORIZES, UNDER CERTAIN CONDITIONS, THE PAYMENT FROM APPROPRIATED FUNDS OF THE TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES WHO, IN THE INTEREST OF THE GOVERNMENT, ARE TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER, INCLUDING "TRANSFERS" FROM ONE DEPARTMENT TO ANOTHER. SUCH PAYMENT, HOWEVER, IS EXPLICITLY PRECLUDED BY PROVISO "WHERE THE TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST.' THE TERM "TRANSFERS" AS USED ABOVE COVERS ALL GOOD FAITH CHANGES OF EMPLOYMENT BETWEEN DEPARTMENTS, INCLUDING AS HERE SELECTIONS FROM CIVIL SERVICE REGISTERS OF PERSONS ALREADY IN FEDERAL EMPLOYMENT, SO AS TO AUTHORIZE PAYMENT IN SUCH CASES, PROVIDED THE SERVICE IN THE TWO AGENCIES IS CONTINUOUS AND ALL STATUTORY REQUIREMENTS AND REGULATIONS ARE COMPLIED WITH. SEE 27 COMP. GEN. 757.

THE QUESTION OF WHETHER A TRANSFER IS "IN THE INTEREST OF THE GOVERNMENT" AND WHETHER SUCH TRANSFER "IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST" PRIMARILY IS FOR ADMINISTRATIVE DETERMINATION. IN THE CIRCUMSTANCES RELATED ABOVE, WE WOULD NOT OBJECT TO AN ADMINISTRATIVE DETERMINATION THAT THE CONTEMPLATED TRANSFER WOULD BE IN THE INTEREST OF THE GOVERNMENT AND WOULD NOT BE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST WITHIN THE MEANING OF THE PROHIBITORY PROVISO.