B-160111, DEC. 7, 1966

B-160111: Dec 7, 1966

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YOU SAY THAT THE CRITERIA THAT DETERMINES THE FORFEITURE OF SEVERANCE PAY IS ARBITRARY AND INCONSISTENT. YOU ARE ENTITLED TO SEVERANCE PAY. THE RECORD SHOWS THAT YOU WERE OFFICIALLY NOTIFIED THAT YOUR FUNCTION WOULD BE TRANSFERRED FROM CHICAGO TO HYATTSVILLE. FURTHER THE RECORD SHOWS THAT YOU REMAINED IN THE POSITION UNTIL THE TRANSFER ACTUALLY TOOK PLACE AND THAT BETWEEN THE TIME YOU WERE OFFICIALLY NOTIFIED OF THE OFFICIAL ACTION CONTEMPLATED AND THE DATE YOU WERE SEPARATED ADMINISTRATIVE OFFERS OF EQUIVALENT POSITIONS WERE EXTENDED TO AND REFUSED BY YOU. 5 U.S.C. 1117. - "/8) SUCH OTHER OFFICERS OR EMPLOYEES AS MAY BE EXCLUDED BY RULES AND REGULATIONS OF THE PRESIDENT OR OF SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE. "/C) AN OFFICER OR EMPLOYEE TO WHOM THIS SECTION APPLIES WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE.

B-160111, DEC. 7, 1966

TO MR. GEORGE W. FELT:

YOUR LETTER OF AUGUST 31, 1966, AND THE COPIES OF CORRESPONDENCE YOU ENCLOSED THEREWITH, CONCERN SEVERANCE PAY ADMINISTRATIVELY DENIED YOU BY THE DEPARTMENT OF AGRICULTURE. YOU SAY THAT THE CRITERIA THAT DETERMINES THE FORFEITURE OF SEVERANCE PAY IS ARBITRARY AND INCONSISTENT, AND YOU ASK THAT WE DECIDE WHETHER, UNDER THE FACTS AND CIRCUMSTANCES OF YOUR CASE, YOU ARE ENTITLED TO SEVERANCE PAY.

THE RECORD SHOWS THAT YOU WERE OFFICIALLY NOTIFIED THAT YOUR FUNCTION WOULD BE TRANSFERRED FROM CHICAGO TO HYATTSVILLE, MARYLAND. YOU ADVISED THOSE IN CHARGE THAT YOU DID NOT WISH TO ACCOMPANY YOUR TRANSFERRED POSITION. FURTHER THE RECORD SHOWS THAT YOU REMAINED IN THE POSITION UNTIL THE TRANSFER ACTUALLY TOOK PLACE AND THAT BETWEEN THE TIME YOU WERE OFFICIALLY NOTIFIED OF THE OFFICIAL ACTION CONTEMPLATED AND THE DATE YOU WERE SEPARATED ADMINISTRATIVE OFFERS OF EQUIVALENT POSITIONS WERE EXTENDED TO AND REFUSED BY YOU.

5 U.S.C. 1117, SUPP. I. 1964 EDITION, RELATING TO SEVERANCE PAY, READS IN PERTINENT PART AS FOLLOWS:

"/B) THIS SECTION DOES NOT APPLY TO---

"/8) SUCH OTHER OFFICERS OR EMPLOYEES AS MAY BE EXCLUDED BY RULES AND REGULATIONS OF THE PRESIDENT OR OF SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE.

"/C) AN OFFICER OR EMPLOYEE TO WHOM THIS SECTION APPLIES WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, ON OR AFTER OCTOBER 29, 1965, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, SHALL, UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, CORPORATION, OR OTHER GOVERNMENTAL UNIT, FROM WHICH SEPARATED.'

EXECUTIVE ORDER NO. 11257, DATED NOVEMBER 17, 1965, AUTHORIZED THE UNITED STATES CIVIL SERVICE COMMISSION TO PRESCRIBE RULES AND REGULATIONS CONCERNING THE OFFICERS OR EMPLOYEES ENTITLED TO SEVERANCE PAY, THE EXCLUSIONS THEREFROM, AND TO DETERMINE THE MANNER IN WHICH SEVERANCE PAY WAS TO BE PAID TO THOSE ENTITLED THERETO.

THE COMMISSION UNDER DATE OF JANUARY 5, 1966, ISSUED FPM LETTER NO. 550- 13 CONTAINING THE REGULATIONS GOVERNING THE METHOD OF PAYMENT AND COVERAGE OF SEVERANCE PAY. SECTION 550.705 THEREOF READS AS FOLLOWS:

"FAILURE TO ACCOMPANY ACTIVITY. THE SEPARATION OF AN EMPLOYEE BY A DEPARTMENT WHEN THE EMPLOYEE DECLINES TO ACCOMPANY HIS POSITION WHEN IT IS MOVED TO ANOTHER COMMUTING AREA BECAUSE OF A TRANSFER OF FUNCTION IS DEEMED TO BE AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, FOR PURPOSES OF ENTITLEMENT TO SEVERANCE Y.'

SECTION 550.701 (B) (2), HOWEVER, PROVIDES AS FOLLOWS:

"THIS SUBPART DOES NOT APPLY TO AN EMPLOYEE WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, IS OFFERED AND DECLINES TO ACCEPT AN EQUIVALENT POSITION IN HIS DEPARTMENT IN THE SAME COMMUTING AREA, INCLUDING A DEPARTMENT TO WHICH THE EMPLOYEE WITH HIS FUNCTION IS TRANSFERRED IN A TRANSFER OF FUNCTIONS BETWEEN DEPARTMENTS. FOR PURPOSES OF THIS SUBPARAGRAPH, AN EQUIVALENT POSITION IS ONE OF LIKE SENIORITY, TENURE, AND PAY OTHER THAN A RETAINED RATE.'

YOU SAY THAT YOU WERE NOT QUALIFIED FOR THE POSITIONS OFFERED AND THAT THE REGULATIONS ARE ARBITRARY AND INCONSISTENT. WE NOTE THAT THE ADMINISTRATIVE OFFICE CONCERNED SECURED A WAIVER OF A QUALIFICATIONS FROM THE UNITED STATES CIVIL SERVICE COMMISSION THUS MAKING IT EASIER TO PLACE AFFECTED EMPLOYEES. NOTWITHSTANDING THE WAIVER, THE DEPARTMENT WAS REQUIRED TO DETERMINE THAT THE EMPLOYEE COULD ADEQUATELY PERFORM THE WORK OF THE POSITION. THE DEPARTMENT SAYS THAT IF YOU HAD INDICATED INTEREST IN ANY OF THE GS-4 POSITIONS YOU WOULD HAVE BEEN PLACED IN ONE OF THEM.

IT IS APPARENT IN VIEW OF THE LANGUAGE OF THE APPLICABLE STATUTORY PROVISION COVERING SEVERANCE PAY THAT CONGRESS CONTEMPLATED THAT OTHER OFFICERS AND EMPLOYEES COULD BE EXCLUDED THEREFROM BY THE RULES AND REGULATIONS REQUIRED TO BE ISSUED IN ADDITION TO THOSE OFFICERS AND EMPLOYEES SPECIFICALLY EXCLUDED BY THE PROVISIONS OF SECTION 9 (B), PUB.L. 89-301, OCTOBER 29, 1965, 79 STAT. 1118.

THE CIVIL SERVICE COMMISSION CONCLUDED THAT THE OFFER OF AN EQUIVALENT POSITION AND THE REFUSAL THEREOF CREATED A SITUATION THAT SHOULD BE EXCLUDED FROM ENTITLEMENT TO SEVERANCE PAY. SECTION 550.701 (B) (2), QUOTED ABOVE, SO PROVIDES. THE RESTRICTION IS NOT CONTRARY TO THE STATUTE AND IN OUR OPINION WAS A LAWFUL EXERCISE BY THE COMMISSION OF ITS AUTHORITY TO REGULATE IN THE AREA OF SEVERANCE PAY. THEREFORE, THE ACTION OF THE ADMINISTRATIVE OFFICE IN DENYING SEVERANCE PAY TO YOU ..END :