B-145657, MAY 16, 1961

B-145657, MAY 16, 1961

TO MR. GRANT BLOODGOOD, AUTHORIZED CERTIFYING OFFICER, BUREAU OF RECLAMATION:

YOUR LETTER OF APRIL 14, 1961, REFERENCE D-311, REQUESTS OUR DECISION WHETHER PAYMENT MAY BE MADE ON THE VOUCHER ACCOMPANYING THE CLAIM OF MR. HAROLD G. DE SHAZO FOR $170.70, REPRESENTING TRAVEL AND TRANSPORTATION EXPENSES RECOVERED FROM THE CLAIMANT ON THE BASIS THAT HE DID NOT COMPLETE HIS EMPLOYMENT AGREEMENT WITH THE BUREAU OF RECLAMATION.

THE RECORD SHOWS THAT MR. DE SHAZO WAS INITIALLY APPOINTED, EFFECTIVE JANUARY 4, 1961, TO THE POSITION OF STRUCTURAL ENGINEER WITH THE BUREAU OF RECLAMATION, COMMISSIONER'S OFFICE, DENVER, COLORADO. MR. DE SHAZO WAS AUTHORIZED TO INCUR EXPENSES OF TRAVEL AND TRANSPORTATION FROM HIS HOME IN MARYVILLE, TENNESSEE, TO HIS FIRST DUTY STATION IN DENVER PURSUANT TO 5 U.S.C. 73B-3 (B). THIS PROVISION AUTHORIZES THE PAYMENT OF EXPENSES OF TRAVEL AND TRANSPORTATION OF NEW APPOINTEES TO POSITIONS IN THE UNITED STATES FOR WHICH THE CIVIL SERVICE COMMISSION DETERMINES THERE IS A MANPOWER SHORTAGE. HOWEVER, SUCH EXPENSES MAY NOT BE ALLOWED UNDER THIS PROVISION UNLESS THE APPOINTEE AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS APPOINTMENT UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. WHEN THE AGREEMENT IS VIOLATED BY THE EMPLOYEE ALL MONEYS EXPENDED BY THE GOVERNMENT FOR THE APPOINTEE'S TRAVEL AND TRANSPORTATION SHALL BE REFUNDED BY THE EMPLOYEE.

SEVEN WEEKS AFTER STARTING WORK WITH THE BUREAU OF RECLAMATION IN DENVER, MR. DE SHAZO ON FEBRUARY 19, 1961, TRANSFERRED TO THE U.S. DEPARTMENT OF AGRICULTURE, SOIL CONSERVATION SERVICE, AT GAINESBORO, TENNESSEE. YOU SAY THAT THE BUREAU INTERPOSED NO OBJECTION TO MR. DE SHAZO'S TRANSFER.

SINCE MR. DE SHAZO TERMINATED HIS EMPLOYMENT WITH THE BUREAU OF RECLAMATION PRIOR TO HIS COMPLETING ONE YEAR'S SERVICE, THE BUREAU REQUESTED HE REFUND $670.70, THE AMOUNT PAID HIM FOR TRAVEL AND TRANSPORTATION EXPENSES. ALTHOUGH HE REFUNDED THAT AMOUNT MR. DE SHAZO REQUESTS THAT THE AMOUNT OF $170.70 WHICH REPRESENTS THE COST OF HIS AND HIS WIFE'S TRAVEL TO DENVER BE REPAID TO HIM. THE REMAINING $500 WHICH REPRESENTS AN ADVANCE FOR SHIPMENT OF HOUSEHOLD EFFECTS IS NOT CLAIMED BY HIM SINCE SUCH SHIPMENT WAS NOT ACCOMPLISHED.

THE ENCLOSURES IN YOUR LETTER OF APRIL 14 INCLUDE A COPY OF AN EMPLOYMENT AGREEMENT EXECUTED ON JANUARY 4, 1961, BY THE CLAIMANT IN WHICH HE AGREED THAT IN CONSIDERATION OF PAYMENT BY THE BUREAU OF RECLAMATION OF HIS TRAVEL AND TRANSPORTATION EXPENSES HE WOULD REMAIN IN THE GOVERNMENT SERVICE FOR A MINIMUM OF 12 MONTHS FROM THE DATE OF HIS ARRIVAL AT HIS FIRST DUTY STATION UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL.

THE CLAIMANT CONTENDS THAT SINCE THE REQUIREMENT OF THE ABOVE-CITED ACT IS THAT THE EMPLOYEE REMAIN IN GOVERNMENT SERVICE FOR A MINIMUM OF 12 MONTHS, HE HAS NOT VIOLATED HIS AGREEMENT BECAUSE HE IS STILL EMPLOYED BY THE GOVERNMENT, ALBEIT IN A DIFFERENT DEPARTMENT.

IN A DECISION OF OUR OFFICE REPORTED AT 31 COMP. GEN. 588 WE CONSIDERED THE EFFECT OF A SIMILAR AGREEMENT, EXECUTED PURSUANT TO SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, UPON A TRANSFER BY AN EMPLOYEE BETWEEN TWO OVERSEAS POSITIONS PRIOR TO THE COMPLETION OF THE MINIMUM AGREED-TO PERIOD OF SERVICE. THE ACT, THERE INVOLVED, AUTHORIZED REIMBURSEMENT OF THE EXPENSES OF TRAVEL AND TRANSPORTATION OF NEW APPOINTEES TO PLACES OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES, AND RETURN PROVIDED THE APPOINTEES AGREED IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS UNLESS SEPARATED FOR REASONS BEYOND THEIR CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN THAT CASE, AS IN THE INSTANT MATTER, NEITHER THE STATUTE NOR THE AGREEMENT SPECIFICALLY COVERED THE SITUATION WHEN A NEW APPOINTEE TRANSFERS BETWEEN FEDERAL AGENCIES BEFORE COMPLETION OF THE MINIMUM PERIOD OF SERVICE. WE HELD THAT UNDER THE TERMS OF THAT AGREEMENT THE EMPLOYEE COULD NOT BE CONSIDERED AS HAVING BREACHED HIS AGREEMENT SOLELY BY REASON OF A TRANSFER PRIOR TO THE EXPIRATION OF THE AGREED PERIOD OF SERVICE SO AS TO MAKE HIM LIABLE FOR THE EXPENSE OF TRAVEL AND TRANSPORTATION FROM THE UNITED STATES TO HIS POST OF DUTY.

THEREFORE, AND SINCE NOTHING APPEARS IN THE LEGISLATIVE HISTORY OF 5 U.S.C. 73B-3 (B) TO WARRANT A CONTRARY CONCLUSION, WE HOLD THAT THE CLAIMANT IS NOT IN VIOLATION OF THE STATUTE OR OF HIS AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR THE STATED MINIMUM TIME; HENCE, HE MAY BE REFUNDED THE AMOUNT OF $170.70 ALREADY EXPENDED BY HIM.