B-168676, MAR. 20, 1970

B-168676: Mar 20, 1970

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GAO CONSIDERS THAT AGENCY BREACHED ITS DUTY TO ADVISE EMPLOYEE OF INVESTIGATION PENDING AT TIME HE WAS REQUIRED TO SIGN AGREEMENT. EMPLOYEE IS ENTITLED TO REPAYMENT OF TRANSFER EXPENSES ADMINISTRATIVELY COLLECTED FROM HIM UPON HIS VOLUNTARY RESIGNATION PRIOR TO COMPLETION OF 12-MONTH AGREED SERVICE WAS NOT RECEIVED FROM CERTIFYING OFFICER. DEPARTMENT OR ESTABLISHMENT AS REQUIRED BY 31 U.S.C. 74 AND 82D AND REQUESTING OFFICER IS NOT ENTITLED TO DECISION. GAO WILL UNDER CIRCUMSTANCES AND IN INTEREST OF EXPEDITING DISPOSITION OF MATTER ADDRESS DECISION TO SEC. SECRETARY: WE HAVE RECEIVED FROM MR. A VOUCHER WAS NOT SUMBITTED WITH THE REQUEST AND WE UNDERSTAND INFORMALLY THAT MR. GROSBERG IS NEITHER A CERTIFYING NOR A DISBURSING OFFICER.

B-168676, MAR. 20, 1970

OFFICERS AND EMPLOYEES--RESIGNATION--VOLUNTARY V. INVOLUNTARY EMPLOYEE MAY AFTER TRANSFER AT GOVT.'S DIRECTION RESIGN WITHIN 12 MONTH PERIOD OF AGREED SERVICE WITHOUT LIABILITY FOR REFUND OF TRANSFER EXPENSES WHERE AGENCY DID NOT ADVISE EMPLOYEE OF PENDING INVESTIGATION OF HIS ALLEGED MISCONDUCT UNTIL AFTER TRANSFER. WHILE ORDINARILY RESIGNATION TO AVOID FACING CHARGES DIRECTED TOWARD DISMISSAL WOULD NOT BE CONSIDERED AS BEING BEYOND CONTROL OF EMPLOYEE SO AS TO CANCEL HIS OBLIGATIOR FOR CONTINUED SERVICE, GAO CONSIDERS THAT AGENCY BREACHED ITS DUTY TO ADVISE EMPLOYEE OF INVESTIGATION PENDING AT TIME HE WAS REQUIRED TO SIGN AGREEMENT. SEE COMP. GEN. DECS. CITED. GENERAL ACCOUNTING OFFICE-- DECISIONS--ADVANCE--OTHER THAN HEAD OF DEPARTMENTS, ETC. WHILE REQUEST AS TO WHETHER FORMER GOVT. EMPLOYEE IS ENTITLED TO REPAYMENT OF TRANSFER EXPENSES ADMINISTRATIVELY COLLECTED FROM HIM UPON HIS VOLUNTARY RESIGNATION PRIOR TO COMPLETION OF 12-MONTH AGREED SERVICE WAS NOT RECEIVED FROM CERTIFYING OFFICER, DISBURSING OFFICER OR HEAD OF GOVT. DEPARTMENT OR ESTABLISHMENT AS REQUIRED BY 31 U.S.C. 74 AND 82D AND REQUESTING OFFICER IS NOT ENTITLED TO DECISION, GAO WILL UNDER CIRCUMSTANCES AND IN INTEREST OF EXPEDITING DISPOSITION OF MATTER ADDRESS DECISION TO SEC. OF TREASURY.

TO MR. SECRETARY:

WE HAVE RECEIVED FROM MR. I. J. GROSBERG, CHIEF, FISCAL MANAGEMENT BRANCH, INTERNAL REVENUE SERVICE, 90 CHURCH STREET, NEW YORK, NEW YORK, A REQUEST DATED DECEMBER 18, 1969, REFERENCE AD:FF, FOR A DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, MR. MARVIN J. BERMAN, A FORMER EMPLOYEE OF THE ALCOHOL, TOBACCO AND FIREARMS DIVISION, MAY BE REPAID THE SUM OF $1,000.34 ADMINISTRATIVELY COLLECTED FROM HIM. A VOUCHER WAS NOT SUMBITTED WITH THE REQUEST AND WE UNDERSTAND INFORMALLY THAT MR. GROSBERG IS NEITHER A CERTIFYING NOR A DISBURSING OFFICER. THUS HE IS NOT ENTITLED TO A DECISION ON THE MATTER PRESENTED. SEE 31 U.S.C. 74, 82D. HOWEVER, IN THE CIRCUMSTANCES AND IN THE INTEREST OF EXPEDITING THE DISPOSITION OF THE PRESENT MATTER WE ARE ADDRESSING OUR DECISION TO YOU.

THE INFORMATION FURNISHED SHOWS THAT MR. BERMAN WAS OFFICIALLY TRANSFERRED FROM BOSTON, MASSACHUSETTS, TO BUFFALO, NEW YORK, ON MAY 8, 1969. HE SIGNED THE REQUIRED AGREEMENT ON APRIL 17, 1969, TO REMAIN IN THE SERVICE FOR A PERIOD OF NOT LESS THAN 12 MONTHS FROM THE DATE HE REPORTED TO BUFFALO. HE AUTHORIZED THE WITHHOLDING OF COMPENSATION OR OTHER AMOUNTS IN THE EVENT HE VIOLATED SUCH AGREEMENT. IT IS STATED IN MR. GROSBERG'S LETTER THAT AT THE TIME OF SUCH TRANSFER MANAGEMENT WAS AWARE THAT AN INVESTIGATION WAS IN PROGRESS CONCERNING PAST INSTANCES OF MISCONDUCT ON THE PART OF THE EMPLOYEE. THE EMPLOYEE, HOWEVER, WAS NOT ADVISED OF SUCH INVESTIGATION PRIOR TO HIS TRANSFER. IT IS STATED FURTHER THAT WHILE THE EMPLOYEE OBJECTED TO THE TRANSFER HE WAS GIVEN NO CHOICE. FOLLOWING SUCH TRANSFER THE EMPLOYEE RESIGNED EFFECTIVE OCTOBER 17, 1969, AFTER BEING INFORMED OF CONTEMPLATED CHARGES LOOKING TOWARD HIS INVOLUNTARY SEPARATION. AS A RESULT ADMINISTRATIVE ACTION WAS TAKEN TO RECOVER THE $1,000.34 PAID TO HIM AS REIMBURSEMENT FOR EXPENSES INCURRED IN THE PERMANENT CHANGE OF STATION BY WITHHOLDING HIS FINAL SALARY CHECK AND REQUESTING SETOFF OF THE DIFFERENCE FROM HIS RETIREMENT ACCOUNT.

IT IS POINTED OUT IN SUCH LETTER THAT THIS CASE IS SIMILAR TO THE CASE INVOLVED IN 47 COMP. GEN. 503 WHEREIN WE HELD IN PART AS FOLLOWS:

"WITH REGARD TO QUESTION 1, AN EMPLOYEE MAY RESIGN UNDER CERTAIN CIRCUMSTANCES AND NEVERTHELESS BE CONSIDERED SEPARATED FOR REASONS BEYOND HIS CONTROL. SUCH A CASE MAY OCCUR WHEN AN EMPLOYEE ELECTS TO RESIGN RATHER THAN BE INVOLUNTARILY SEPARATED FOR FAILURE TO PASS TRAINING SCHOOL SUBJECTS. 30 COMP. GEN. 457. HOWEVER, WHERE AN EMPLOYEE HAS BEEN ADVISED OF THE RESULTS OF AN INVESTIGATION FOR MISCONDUCT AND THAT CHARGES WILL BE FILED TO DISMISS HIM FROM THE SERVICE, HE IS NOT FACED WITH AN INEVITABLE INVOLUNTARY SEPARATION. HE HAS FREEDOM OF ACTION TO MAKE A CHOICE BETWEEN FACING THE CHARGES WHEN THEY ARE FILED OR RESIGNING, AN ALTERNATE WHICH HE MAY CONSIDER MORE FAVORABLE TO HIMSELF. UNDER THESE CIRCUMSTANCES A VOLUNTARY RESIGNATION MAY NOT REASONABLY BE CONSTRUED AS BEING FOR A 'REASON BEYOND THE CONTROL OF THE EMPLOYEE' WHICH WOULD MAKE THE PAYMENT OF TRANSFER EXPENSES PERMISSIBLE. THE QUESTION IS ANSWERED IN THE NEGATIVE."

ASIDE FROM ANY QUESTION CONCERNING THE PROPRIETY OF THE ADMINISTRATIVE ACTION IN REQUIRING A TRANSFER OF THE EMPLOYEE PRIOR TO THE CONCLUSION OF THE MISCONDUCT INVESTIGATION WHICH WAS THEN IN PROCESS, WE ARE FIRMLY CONVINCED THAT, AT THE VERY LEAST, THE AGENCY WAS OBLIGATED TO ADVISE THE EMPLOYEE PRIOR TO THE TRANSFER OF THE PENDING INVESTIGATION AND THE POSSIBLE CONSEQUENCES THEREOF, PARTICULARLY SINCE THE TRANSFER WAS CONTRARY TO THE WISHES OF THE EMPLOYEE. THE FAILURE TO SO ADVISE THE EMPLOYEE DENIED HIM THE OPPORTUNITY TO CHOOSE BETWEEN ACCEPTING THE TRANSFER WITH ITS CONCOMITANT OBLIGATIONS OR SUBMITTING HIS RESIGNATION AT THAT TIME. UNDER THE CIRCUMSTANCES OF THIS CASE, THE AGREEMENT EXECUTED BY HIM IS CONSIDERED TO BE CONTRARY TO THE INTENT AND SPIRIT OF THE CONTROLLING STATUTE. 5 U.S.C. 5724 (I). ACCORDINGLY, THE AMOUNT OF THE EMPLOYEE'S SALARY CHECK, $386.98, APPLIED TO THE INDEBTEDNESS MAY NOW BE PAID TO HIM AND AN ADJUSTMENT MADE IN HIS RETIREMENT ACCOUNT FOR THE BALANCE OF $613.36 COLLECTED THEREFROM.