B-160981, APRIL 14, 1967, 46 COMP. GEN. 738

B-160981, APRIL 14, 1967, 46 COMP. GEN. 738

OFFICERS AND EMPLOYEES - TRANSFERS - SERVICE AGREEMENTS - GOVERNMENT V. PARTICULAR AGENCY SERVICE ALTHOUGH AN EMPLOYEE WHO HAD EXECUTED AN AGREEMENT TO REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS INCIDENT TO AN AGENCY TRANSFER, VOLUNTARILY RETURNED TO HIS FORMER AGENCY WITHIN A WEEK, ALLEGING POSITION DISSIMILARITY, HE MAY BE REIMBURSED BY THE AGENCY ACQUIRING HIS SERVICES FOR THE SHORT PERIOD OF TIME FOR THE TRAVEL AND TRANSPORTATION EXPENSES HE INCURRED, THE AGREEMENT REQUIRING ONLY 12 MONTHS OF GOVERNMENT SERVICE. HOWEVER, THE AGENCY TO WHICH THE EMPLOYEE RETURNED SHOULD BE INFORMED OF THE AGREEMENT IN THE EVENT IT SHOULD BE VIOLATED, AND FUTURE AGREEMENTS TO AVOID A SIMILAR SITUATION SHOULD REQUIRE THE AGREED PERIOD OF SERVICE INCIDENT TO A TRANSFER TO BE PERFORMED UNDER A PARTICULAR AGENCY.

TO RAYMOND KURLANDER, CIVIL AERONAUTICS BOARD, APRIL 14, 1967:

YOUR LETTER OF FEBRUARY 28, 1967, REFERENCE B-28, ENCLOSING A VOUCHER FOR $617.58, COVERING EXPENSES INCURRED FOR TRAVEL, TRANSPORTATION AND SHIPMENT OF HOUSEHOLD EFFECTS BY A FORMER EMPLOYEE OF THE CIVIL AERONAUTICS BOARD, REQUESTS OUR DECISION WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

THE EXPENSES OF TRAVEL AND TRANSPORTATION WERE INCURRED INCIDENT TO THE TRANSFER OF THE EMPLOYEE FROM THE DEFENSE SUPPLY AGENCY, BOSTON, MASSACHUSETTS, TO THE CIVIL AERONAUTICS BOARD, WASHINGTON, D.C., EFFECTIVE DECEMBER 10, 1966.

YOUR LETTER RELATES THAT THE EMPLOYEE'S TRAVEL TO WASHINGTON OCCURRED ON DECEMBER 10, 1966. HIS IMMEDIATE FAMILY TRAVELED ON DECEMBER 14, 1966, AND HIS HOUSEHOLD GOODS WERE MOVED ON THE SAME DATE. INCIDENT TO HIS TRANSFER THE EMPLOYEE EXECUTED THE AGREEMENT REQUIRED BY SECTION 28 WHICH WAS ADDED TO THE FORMER ADMINISTRATIVE EXPENSES ACT OF 1946 BY SECTION 2 OF THE ACT OF JULY 21, 1966, PUBLIC LAW 89-516, 80 STAT. 325, 5 U.S.C. 5724, TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING HIS TRANSFER.

AT THE CLOSE OF BUSINESS ON DECEMBER 15, THE EMPLOYEE VOLUNTARILY SEPARATED FROM THE BOARD TO RETURN TO HIS FORMER POSITION WITH THE DEFENSE SUPPLY AGENCY IN BOSTON. THE FOLLOWING REASON IS SAID TO HAVE BEEN SUBMITTED BY THE EMPLOYEE IN REGARD TO HIS RESIGNATION:

EMPLOYEE DESIRES TO RETURN TO HIS FORMER POSITION OF APPROPRIATION ACCOUNTING RATHER THAN CONTINUE WITH THE BOARD AS AUDITOR (TRANSPORTATION UTILITIES), WHICH POSITION INVOLVES THE APPLICATION OF COMMERCIAL TYPE AUDITING TECHNIQUES.

YOUR LETTER EXPRESSES THE VIEW THAT THE EMPLOYEE'S ACTION IN ACCEPTING THE APPOINTMENT WITH THE BOARD AND THEN RETURNING TO HIS FORMER AGENCY WITHIN A WEEK WAS NOT IN THE INTEREST OF THE GOVERNMENT; THAT NEITHER THE BOARD NOR HIS FORMER AGENCY DERIVED ANY BENEFIT FROM HIS ACTIONS. UNDERSTAND FROM YOUR EXPRESSED STATEMENTS THAT THE BOARD ADMINISTRATIVELY FINDS THAT THE EMPLOYEE'S ACTIONS WERE NOT FOR REASONS BEYOND HIS CONTROL OR ACCEPTABLE TO YOUR AGENCY.

IN THAT REGARD WE NOTE FROM A MEMORANDUM IN THE TRANSMITTED FILE THAT NOTHING WAS SAID OR SUGGESTED TO THE EMPLOYEE THAT HE DID NOT MEASURE UP TO THE REQUIREMENTS OF HIS POSITION WITH THE BOARD. IN FACT THE OPINION OF HIS APPARENT SUPERVISOR IS THAT HAD HE REMAINED WITH THE BOARD HE WOULD HAVE PERFORMED WELL AS A BOARD AUDITOR.

SUPPLEMENTING YOUR PRIMARY INQUIRE CONCERNING THE PAYMENT OF THE VOUCHER YOU ASK, IN VIEW OF THE FACT THAT YOU NO LONGER HAVE CONTROL OVER THE EMPLOYEE, WHETHER THE VOUCHER, IF PAYMENT IS AUTHORIZED, SHOULD BE PAID CURRENTLY OR AFTER COMPLETION OF HIS AGREED 12 MONTHS OF GOVERNMENT SERVICE.

IN OUR DECISION OF MAY 9, 1952, 31 COMP. GEN. 588, WE CONSTRUED A STATUTORY REQUIREMENT FOR A CONTINUED SERVICE AGREEMENT THAT IS COMPARABLE TO THAT REQUIRED BY SAID SECTION 28 ABOVE. IN THAT DECISION WE RULED IN PART AS FOLLOWS:

UNDER THE AGREEMENT SIGNED BY THE EMPLOYEE, REFERRED TO IN QUESTION 1, THE EMPLOYEE AGREED TO REMAIN IN "THE GOVERNMENT SERVICE" FOR A PERIOD OF 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF THE TRANSFER, UNLESS EARLIER SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY. WHILE 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, HE WOULD HAVE TO FULFILL THE REQUIREMENTS OF THE AGREEMENT WITH THE AGENCY TO WHICH HE TRANSFERS BEFORE BEING ENTITLED TO RETURN EXPENSES. HOWEVER, IN THE ABSENCE OF NEW AGREEMENT, SUCH AS REFERRED TO ABOVE INCIDENT TO A TRANSFER, AN EMPLOYEE MAY BE CONSIDERED AS BEING ENTITLED TO THE EXPENSES OF TRAVEL AND TRANSPORTATION TO AND FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, PROVIDED HE WOULD HAVE BEEN ENTITLED THERETO AT THE TIME OF HIS RETURN HAD HE CONTINUED IN THE AGENCY IN WHICH ORIGINALLY EMPLOYED.

THE RATIONALE OF THE DECISION 31 COMP. GEN. 588 WAS FOLLOWED IN OUR DECISION OF MAY 16, 1961, B-145657, CONCERNING AN AGREEMENT "TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS" ENTERED INTO BY AN EMPLOYEE FOR EMPLOYMENT IN THE CONTIGUOUS 48 STATES, PURSUANT TO THE ACT OF JULY 5, 1960, 74 STAT. 327, NOW CODIFIED AS 5 U.S.C. 5723 (B), CONCERNING MANPOWER SHORTAGE POSITIONS.

THE PRINCIPLE ENUNCIATED IN THOSE DECISIONS IS FOR APPLICATION IN THE PRESENT CASE. THE EMPLOYEE EXECUTED THE AGREEMENT REQUIRED BY THE STATUTE AND HAS REMAINED CONTINUOUSLY IN THE GOVERNMENT SERVICE SINCE HIS TRANSFER TO THE POSITION UNDER THE CIVIL AERONAUTICS BOARD. THAT WAS ALL HE WAS REQUIRED TO DO UNDER THE TERMS OF THE STATUTE AND THE AGREEMENT HE EXECUTED.

ADMITTEDLY, THE EXTREME SITUATION EVIDENCED BY THE INSTANT CASE MAY NOT BE IN THE INTEREST OF THE GOVERNMENT. CONTINUED SERVICE AGREEMENTS, SUCH AS THE ONE EXECUTED BY THE EMPLOYEE INVOLVED, DO NOT PROTECT THE EMPLOYING AGENCY AGAINST A TRANSFER (WITH NO BREAK IN SERVICE) OF THE EMPLOYEE PRIOR TO COMPLETION OF THE AGREED UPON PERIOD OF SERVICE, AND IN CERTAIN INSTANCES MAY FAIL TO ADEQUATELY PROTECT THE INTEREST OF THE GOVERNMENT AS A WHOLE. SUCH FACT, HOWEVER, DOES NOT JUSTIFY THE CONCLUSION THAT AN EMPLOYEE WHO TRANSFERS, WITH NO BREAK IN SERVICE, TO ANOTHER AGENCY PRIOR TO THE EXPIRATION OF THE 12 MONTH PERIOD SPECIFIED IN AN AGREEMENT, SUCH AS IS HERE INVOLVED, THEREBY BREACHES SUCH AGREEMENT WHEN, IN FACT, HE DOES NOT.

IT WOULD BE A SIMPLE MATTER TO GUARD REOCCURRENCES OF SITUATIONS SUCH AS HERE INVOLVED BY CHANGING THE WORDING OF THE AGREEMENT TO BE EXECUTED BY THE EMPLOYEE SO AS TO SPECIFY THAT THE REQUIRED PERIOD OF SERVICE BE SERVED UNDER THE PARTICULAR AGENCY CONCERNED RATHER THAN "IN THE GOVERNMENT SERVICE.' COMPARE DECISION OF NOVEMBER 21, 1966, B 160092.

ACCORDINGLY, IF OTHERWISE CORRECT, YOU PROPERLY MAY CERTIFY THE VOUCHER WHICH IS RETURNED HEREWITH FOR A CURRENT PAYMENT.

WE SUGGEST THAT THE DEFENSE SUPPLY AGENCY BE INFORMED OF THE AGREEMENT SO THAT APPROPRIATE COLLECTION ACTION COULD BE TAKEN IF THE EMPLOYEE VIOLATES THE AGREEMENT AT SOME LATER DATE.