B-162079, AUG. 17, 1967

B-162079, AUG. 17, 1967

EMPLOYEES - TRANSFERS - EXPENSES PRIOR TO CANCELLATION DECISION TO SBA RE CLAIM OF EMPLOYEE FOR REAL ESTATE LEASING, ETC. EXPENSES INCIDENT TO TRANSFER WHICH WAS CANCELLED. EMPLOYEE WHO INCIDENT TO ANTICIPATED TRANSFER INCURRED LEASING EXPENSE AND TRAVEL EXPENSES BEFORE TRANSFER WAS CANCELLED MAY NOT BE REIMBURSED FOR EXPENSES AND SINCE TRIP WAS FOR PERSONAL CONVENIENCE CHARGE TO ANNUAL LEAVE WAS PROPER.

TO MR. MOOT:

WE REFER TO YOUR LETTER OF JULY 18, 1967, REQUESTING OUR DECISION CONCERNING YOUR AUTHORITY TO REIMBURSE MR. DAVID M. COHEN, AN EMPLOYEE OF THE SMALL BUSINESS ADMINISTRATION, FOR REAL ESTATE LEASING AND OTHER EXPENSES INCURRED BY HIM INCIDENT TO AN ANTICIPATED TRANSFER OF STATION FROM PHILADELPHIA TO NEW YORK, WHICH TRANSFER DID NOT MATERIALIZE.

THE FACTS IN THE CASE ARE SUMMARIZED IN YOUR LETTER AS FOLLOWS:

"IN MARCH 1967, MR. COHEN, LOAN OFFICER IN THE PHILADELPHIA REGIONAL OFFICE, APPLIED FOR A TRANSFER TO THE NEW YORK REGIONAL OFFICE. HE WAS INTERVIEWED AND ACCEPTED BY MR. FERZIGER, NEW YORK REGIONAL DIRECTOR. MEMORANDUM DATED MARCH 16, 1967, FROM THE ADMINISTRATIVE OFFICER, NEW YORK REGIONAL OFFICE TO THE PHILADELPHIA AREA OFFICE, AN EFFECTIVE DATE FOR THE TRANSFER WAS SET AS MAY 7, 1967. THE LATTER PART OF APRIL 1967, THE NEW YORK AREA ADMINISTRATOR DECIDED AGAINST HIRING MR. COHEN FOR EMPLOYMENT IN THE NEW YORK REGIONAL OFFICE.

"ON THE BASIS OF ADVICE THAT HIS TRANSFER TO THE NEW YORK OFFICE WAS TO BE EFFECTIVE MAY 7, MR. COHEN SIGNED A TWO-YEAR LEASE ON AN APARTMENT IN NEW YORK CITY AND DEPOSITED $334 FOR ONE MONTH'S RENT AND ONE MONTH IN ESCROW WITH A REAL ESTATE FIRM ON APRIL 4.

"UPON BEING ADVISED THAT THE TRANSFER WAS CANCELLED, MR. COHEN CONTACTED THE REAL ESTATE FIRM SEEKING REFUND OF THE $334. THE REAL ESTATE FIRM REFUSED TO REFUND THIS AMOUNT AND INDICATED THAT MR. COHEN COULD BE LIABLE FOR A GREATER AMOUNT DEPENDING ON WHETHER AND WHEN THEY COULD RENT THE APARTMENT.'

YOU FURTHER POINT OUT THAT MR. COHEN'S TRANSFER WOULD HAVE BEEN FOR HIS OWN CONVENIENCE, AND YOU ACKNOWLEDGE THAT HIS CASE DOES NOT FALL WITHIN THE PURVIEW OF PUB. L. 89-516, APPROVED JULY 21, 1966, AS IMPLEMENTED BY BUREAU OF THE BUDGET CIRCULAR NO. A-56, APPROVED OCTOBER 12, 1966. YOU EXPRESS THE VIEW, HOWEVER, THAT MR. COHEN IS ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED BECAUSE OF HIS RELIANCE ON ADMINISTRATIVE ADVICE THAT HIS TRANSFER WOULD BE EFFECTIVE MAY 7, 1967.

THE SPECIFIC QUESTIONS PRESENTED BY YOUR LETTER ARE AS FOLLOWS:

"1. CAN WE REIMBURSE THE $8.60 CLAIMED FOR TRAVEL AND THE $334 DEPOSIT LOSS?

"2. CAN WE MAKE PAYMENT FOR THE ONE DAY OF ANNUAL LEAVE? SHOULD THE DAY BE CHARGED TO ADMINISTRATIVE LEAVE AND MR. COHEN'S LEAVE RECORD ADJUSTED ACCORDINGLY?

"3. IF MR. COHEN IS REQUIRED TO PAY FURTHER SUM/S) IN SETTLEMENT OF HIS LEASE OBLIGATION, WILL WE BE ABLE TO REIMBURSE SUCH AMOUNT/S/? "

IN THE CIRCUMSTANCES OUTLINED IN YOUR LETTER, WE FIND NO LEGAL BASIS UPON WHICH APPROPRIATED MONEYS MAY BE USED TO REIMBURSE MR. COHEN FOR THE TRAVEL EXPENSES INCURRED, OR TO ALLOW HIM REIMBURSEMENT FOR THE $334 OR ANY SUBSEQUENT SUMS WHICH MAY BE PAID BY HIM INCIDENT TO RENTAL OF THE APARTMENT. THEREFORE, QUESTIONS 1 AND 3 ARE ANSWERED IN THE NEGATIVE.

SIMILARLY, SINCE THE RECORD BEFORE US IS TO THE EFFECT THAT THE TRIP BETWEEN PHILADELPHIA AND NEW YORK WAS FOR PERSONAL CONVENIENCE, WE ARE OF THE VIEW THAT THE CHARGE TO ANNUAL LEAVE WAS PROPER. IT FOLLOWS THAT BOTH PARTS OF QUESTION 2 ARE FOR ANSWERING IN THE NEGATIVE.

THE OUTLINE OF THE SALIENT FACTS FURNISHED BY YOUR LETTER DOES NOT ENABLE US TO EXPRESS A VIEW CONCERNING THE EQUITABLE ASPECTS OF THE CASE WHICH POSSIBLY MIGHT BE FOR CONSIDERATION BY THE CONGRESS.

THE VOUCHER TRANSMITTED WITH YOUR LETTER, RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.