B-161058, MARCH 29, 1967, 46 COMP. GEN. 724

B-161058: Mar 29, 1967

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THE EXECUTION OF A TRAVEL AND TRANSPORTATION AGREEMENT BY AN EMPLOYEE TO REMAIN IN GOVERNMENT SERVICE 12 MONTHS UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO HIS AGENCY IS A CONDITION PRECEDENT TO THE PAYMENT OF TRAVEL EXPENSES UNDER PUBLIC LAW 89-516. THE AGREEMENT IS NO BAR TO THE VOLUNTARY RETIREMENT OF AN ELIGIBLE EMPLOYEE. AN EMPLOYEE WHO WILL REACH RETIREMENT AGE PRIOR TO FULFILLING THE OBLIGATED PERIOD OF SERVICE IS NEVERTHELESS REQUIRED TO SIGN THE AGREEMENT. IS ACCEPTABLE TO THE EMPLOYING AGENCY. 1967: THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 27. SETS FORTH THE REASONS FOR HIS NOT SIGNING THE AGREEMENT AS FOLLOWS: I HAVE REFUSED TO SIGN THE TRAVEL AND TRANSPORTATION AGREEMENT AS REQUIRED BY PUBLIC LAW 89-516.

B-161058, MARCH 29, 1967, 46 COMP. GEN. 724

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - OBLIGATED PERIOD OF SERVICE - RETIREMENT EFFECT ALTHOUGH INCIDENT TO A CHANGE-OF-DUTY STATION, THE EXECUTION OF A TRAVEL AND TRANSPORTATION AGREEMENT BY AN EMPLOYEE TO REMAIN IN GOVERNMENT SERVICE 12 MONTHS UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO HIS AGENCY IS A CONDITION PRECEDENT TO THE PAYMENT OF TRAVEL EXPENSES UNDER PUBLIC LAW 89-516, AND THE IMPLEMENTING BUREAU OF THE BUDGET REGULATIONS, THE AGREEMENT IS NO BAR TO THE VOLUNTARY RETIREMENT OF AN ELIGIBLE EMPLOYEE. THEREFORE, AN EMPLOYEE WHO WILL REACH RETIREMENT AGE PRIOR TO FULFILLING THE OBLIGATED PERIOD OF SERVICE IS NEVERTHELESS REQUIRED TO SIGN THE AGREEMENT, BUT HE MAY BE RELIEVED FROM REFUNDING THE TRAVEL EXPENSES RECEIVED INCIDENT TO HIS TRANSFER IF HIS RETIREMENT, A SEPARATION BEYOND HIS CONTROL, IS ACCEPTABLE TO THE EMPLOYING AGENCY.

TO MARY E. SMITH, FEDERAL AVIATION AGENCY, MARCH 29, 1967:

THIS IS IN REPLY TO YOUR LETTER OF FEBRUARY 27, 1967, REFERENCE SW 24, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A TRAVEL VOUCHER OF MR. LESLIE C. JOHN, JR., AN EMPLOYEE OF THE FEDERAL AVIATION AGENCY, FOR EXPENSES IN CONNECTION WITH HIS CHANGE OF OFFICIAL STATION FROM AMARILLO TO MIDLAND, TEXAS, ON DECEMBER 1, 1966.

MR. JOHN IN A MEMORANDUM DATED JANUARY 5, 1967, SETS FORTH THE REASONS FOR HIS NOT SIGNING THE AGREEMENT AS FOLLOWS:

I HAVE REFUSED TO SIGN THE TRAVEL AND TRANSPORTATION AGREEMENT AS REQUIRED BY PUBLIC LAW 89-516. MY MAIN REASON FOR REFUSING TO SIGN THIS TRANSPORTATION AGREEMENT IS THAT I WILL REACH RETIREMENT AGE JULY 5, 1967. IF I WERE TO SIGN THIS AGREEMENT, I WOULD NOT BE ALLOWED TO RETIRE PRIOR TO DECEMBER 1967. THE AGENCY HAS ADVISED ME THAT THEY WOULD NOT GIVE ME A WRITTEN GUARANTEE THAT A RELEASE FROM THIS AGREEMENT (AS REQUIRED UNDER 89-516) WOULD BE FORTHCOMING, IF I EXERCISED MY RIGHT TO RETIRE IN JULY 1967.

MY SECONDARY REASON FOR NOT SIGNING THIS AGREEMENT WAS THAT THIS "TRANSFER OF OFFICIAL STATION" WAS FOR THE EFFICIENCY OF THE SERVICE, AND NOT RESULTING FROM MY PERSONAL REQUEST.

I FEEL THAT PUBLIC LAW 89-516 IS IN CONFLICT WITH PUBLIC LAW 89-504 (SECTIONS 504 AND 505), AND IN ADDITION, I BELIEVE THAT PERSONS WHO ARE TRANSFERRED FOR THE "GOOD OF THE SERVICE" SHOULD NOT BE REQUIRED TO SIGN A TRAVEL AGREEMENT.

WITH RESPECT TO THE REQUIREMENT TO SIGN AN AGREEMENT AS A CONDITION PRECEDENT TO THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES SECTION 28 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (SECTION 2, PUBLIC LAW 89-516, APPROVED JULY 21, 1966, 80 STAT. 325, 5 U.S.C. 5724A) PROVIDES AS FOLLOWS:

SEC. 28. NOTWITHSTANDING THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 1, AND OF SECTIONS 23, 24, 25, AND 27 OF THIS ACT, THE TRAVEL AND TRANSPORTATION EXPENSES, INCLUDING STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, AND OTHER RELOCATION ALLOWANCES SHALL NOT BE ALLOWED THEREUNDER WHEN A CIVILIAN OFFICER OR EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES, EXCLUDING ALASKA, UNLESS AND UNTIL SUCH OFFICER OR EMPLOYEE SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN CASE OF VIOLATION OF SUCH AGREEMENT, ANY MONEYS EXPENDED BY THE UNITED STATES UNDER SAID SECTIONS OF THIS ACT ON ACCOUNT OF SUCH OFFICER OR EMPLOYEE SHALL BE RECOVERABLE FROM HIM AS A DEBT DUE THE UNITED STATES.

IN IMPLEMENTATION OF THE FOREGOING STATUTE UNDER AUTHORITY DELEGATED BY THE PRESIDENT, THE BUREAU OF THE BUDGET IN CIRCULAR NO. A-56, DATED OCTOBER 12, 1966, SECTION 1.3C (1) PROVIDES AS FOLLOWS:

TRANSFERS WITHIN CONTINENTAL UNITED STATES AND APPOINTMENTS AND ASSIGNMENTS OF NEW APPOINTEES AND STUDENT TRAINEES TO CERTAIN POSITIONS WITHIN THE 50 STATES AND THE DISTRICT OF COLUMBIA. IN CONNECTION WITH THE TRANSFER OF EMPLOYEES BETWEEN OFFICIAL STATIONS WITHIN THE CONTINENTAL UNITED STATES, EXPENSES FOR TRAVEL, TRANSPORTATION, MOVING AND/OR STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, AND ALLOWANCES AS PROVIDED IN THESE REGULATIONS SHALL NOT BE ALLOWED UNLESS AND UNTIL THE EMPLOYEE SELECTED FOR SUCH TRANSFER SHALL AGREE IN WRITING TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR TWELVE MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT CONCERNED. IN CASE OF VIOLATION OF SUCH AGREEMENT, ANY MONEYS EXPENDED BY THE UNITED STATES FOR SUCH TRAVEL, TRANSPORTATION, AND ALLOWANCES WILL BE RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES. SUCH AN AGREEMENT ALSO IS REQUIRED FROM CERTAIN NEW APPOINTEES AND STUDENT TRAINEES APPOINTED OR ASSIGNED TO POSITIONS IN THE 50 STATES AND THE DISTRICT OF COLUMBIA (SEE SECTION 5). A SIGNED AGREEMENT FOR TWELVE MONTHS SHALL BE REQUIRED IN CONNECTION WITH EACH PERMANENT CHANGE OF STATION.

UNDER THE ABOVE STATUTE AND STATUTORY REGULATIONS THE EXECUTION OF AN AGREEMENT ON THE PART OF AN EMPLOYEE TO REMAIN IN THE GOVERNMENT SERVICE FOR 1 YEAR IS EXPRESSLY REQUIRED AND IS A CONDITION PRECEDENT TO THE ALLOWANCE OF TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH A CHANGE OF STATION. THE LEGISLATIVE HISTORY OF H.R. 10607, 89TH CONG., WHICH BECAME PUBLIC LAW 89-516 BEARS THIS OUT. SEE S.REPT. NO. 1357, JUNE 30, 1966, PAGE 8 AND H.REPT. NO. 1199, OCTOBER 21, 1965, PAGE 7.

THE PAYMENT OF MR. JOHN'S TRAVEL EXPENSES IN CONNECTION WITH HIS CHANGE OF OFFICIAL STATION IS NOT A CONDITION PRECEDENT TO DIRECTING HIS TRANSFER, NOR IS THERE ANY MANDATORY RIGHT TO PAYMENT THEREOF. SEE B- 143845, JULY 26, 1961. MOREOVER, THERE IS NO CONFLICT BETWEEN THE REQUIREMENT TO SIGN AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS IN ORDER TO BECOME ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AND THE RIGHT OF AN EMPLOYEE TO EXERCISE HIS OPTION TO VOLUNTARILY RETIRE AND BE PAID AN ANNUITY UNDER SECTIONS 504 AND 505 OF PUBLIC LAW 504, 89TH ONG., APPROVED JULY 18, 1966, 80 STAT. 301, 5 U.S.C. 8336, 8339. THE PAYMENT OF THE ALLOWANCES IS CONDITIONED UPON SIGNING THE AGREEMENT BUT THAT CONSTITUTES NO BAR TO VOLUNTARY RETIREMENT WHENEVER THE EMPLOYEE IS ELIGIBLE UNDER SECTION 504 ABOVE.

THEREFORE, THE TRAVEL EXPENSES INCURRED INCIDENT TO THE TRANSFER MAY NOT BE ALLOWED UNLESS AND UNTIL THE EMPLOYEE EXECUTES THE MINIMUM PERIOD OF SERVICE AGREEMENT.

THE VOLUNTARY SEPARATION OF AN EMPLOYEE UPON SATISFYING THE AGE AND SERVICE REQUIREMENTS FOR OPTIONAL RETIREMENT MAY BE CONSIDERED AS A REASON BEYOND THE CONTROL OF THE EMPLOYEE. SEE 27 COMP. GEN. 329. HOWEVER, IT IS WITHIN THE DISCRETION OF THE AGENCY CONCERNED TO DETERMINE WHETHER THE SEPARATION INCIDENT TO A VOLUNTARY RETIREMENT PRIOR TO FULFILLING THE TERMS OF THE AGREEMENT IS A REASON ACCEPTABLE TO THE AGENCY CONCERNED FOR THE PURPOSE OF RELIEVING THE EMPLOYEE OF THE OBLIGATION TO REFUND THE TRAVEL EXPENSES INCURRED INCIDENT TO THE TRANSFER.