B-170922, NOV 20, 1970, 50 COMP GEN 374

B-170922: Nov 20, 1970

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TO THE EFFECT THAT A GOVERNMENT AGENCY DOES NOT HAVE THE AUTHORITY UNDER 5 U.S.C. 5724(I) TO REQUIRE AN EMPLOYEE TO SIGN AN AGREEMENT TO REMAIN IN THE SERVICE OF THE AGENCY FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER. GEN. 738 THAT AGREEMENTS EXECUTED UNDER SECTION 5724(I) REQUIRE AN EMPLOYEE TO REMAIN WITH A PARTICULAR AGENCY RATHER THAN "IN THE GOVERNMENT SERVICE" NO LONGER IS FOR APPLICATION. TO REMAIN IN THE SERVICE OF THE AGENCY TO WHICH APPOINTED OR ASSIGNED FOR 12 MONTHS UNLESS SEPARATED FOR REASONS BEYOND THEIR CONTROL WHICH ARE ACCEPTABLE TO THE AGENCY. AS THE LANGUAGE OF SECTION 5723(B) IS SUBSTANTIALLY THE SAME AS SECTION 5724(I). IS ENTITLED TO REFUND OF ALL AMOUNTS COLLECTED FROM HIM ON ACCOUNT OF HIS BREACH OF A TRANSFER AGREEMENT EXECUTED UNDER 5 U.S.C. 5724(I).

B-170922, NOV 20, 1970, 50 COMP GEN 374

OFFICERS AND EMPLOYEES - TRANSFERS - SERVICE AGREEMENTS - GOVERNMENT V PARTICULAR AGENCY SERVICE IN VIEW OF FINN V UNITED STATES, 192 CT. CL. 814, TO THE EFFECT THAT A GOVERNMENT AGENCY DOES NOT HAVE THE AUTHORITY UNDER 5 U.S.C. 5724(I) TO REQUIRE AN EMPLOYEE TO SIGN AN AGREEMENT TO REMAIN IN THE SERVICE OF THE AGENCY FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER, THE HOLDING IN 46 COMP. GEN. 738 THAT AGREEMENTS EXECUTED UNDER SECTION 5724(I) REQUIRE AN EMPLOYEE TO REMAIN WITH A PARTICULAR AGENCY RATHER THAN "IN THE GOVERNMENT SERVICE" NO LONGER IS FOR APPLICATION, WITH THE EXCEPTION OF THE LAST PARAGRAPH CONCERNING THE TAKING OF APPROPRIATE COLLECTION ACTION IF AN EMPLOYEE FAILS TO REMAIN IN THE GOVERNMENT SERVICE 12 MONTHS. OFFICERS AND EMPLOYEES - SERVICE AGREEMENTS - MANPOWER SHORTAGE CATEGORY THE AGREEMENTS WHICH APPOINTEES TO MANPOWER SHORTAGE POSITIONS EXECUTE PURSUANT TO 5 U.S.C. 5723(B), TO REMAIN IN THE SERVICE OF THE AGENCY TO WHICH APPOINTED OR ASSIGNED FOR 12 MONTHS UNLESS SEPARATED FOR REASONS BEYOND THEIR CONTROL WHICH ARE ACCEPTABLE TO THE AGENCY, SHOULD BE REVISED TO REQUIRE ONLY THAT THE EMPLOYEE REMAIN IN THE GOVERNMENT SERVICE, AS THE LANGUAGE OF SECTION 5723(B) IS SUBSTANTIALLY THE SAME AS SECTION 5724(I), WHICH HAS BEEN CONSTRUED IN FINN V UNITED STATES, 192 CT. CL. 814, TO REQUIRE ONLY THAT AN EMPLOYEE AGREE TO REMAIN "IN THE GOVERNMENT SERVICE" FOR A PERIOD OF 12 MONTHS RATHER THAN IN THE SERVICE OF A PARTICULAR AGENCY.

TO MAURICE F. ROW, UNITED STATES DEPARTMENT OF JUSTICE, NOVEMBER 20, 1970:

YOUR LETTER OF SEPTEMBER 29, 1970, WITH ENCLOSURES, REQUESTS OUR DECISION WHETHER MR. EDWARD L. NOWAK, A FORMER EMPLOYEE OF THE FEDERAL BUREAU OF INVESTIGATION, IS ENTITLED TO REFUND OF ALL AMOUNTS COLLECTED FROM HIM ON ACCOUNT OF HIS BREACH OF A TRANSFER AGREEMENT EXECUTED UNDER 5 U.S.C. 5724(I).

IN CONNECTION WITH A TRANSFER OF OFFICIAL STATION MR. NOWAK SIGNED AN AGREEMENT TO REMAIN IN THE SERVICE OF THE FBI FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER. HOWEVER, MR. NOWAK VIOLATED THE TERMS OF THAT AGREEMENT BY ACCEPTING A POSITION WITH THE U.S. ARMY CORPS OF ENGINEERS PRIOR TO THE EXPIRATION OF HIS AGREED-UPON PERIOD OF SERVICE WITH THE BUREAU. CONSEQUENTLY, MR. NOWAK WAS REQUIRED TO REIMBURSE THE BUREAU FOR THE COSTS OF HIS TRANSFER.

MR. NOWAK HAS REQUESTED REFUND OF THE AMOUNTS COLLECTED FROM HIM ON THE BASIS OF FINN V UNITED STATES, 192 CT. CL. 814. IN VIEW OF OUR DECISION OF APRIL 14, 1967, PUBLISHED AT 46 COMP. GEN. 738, YOU QUESTION WHETHER REFUND MAY BE MADE TO THE EMPLOYEE.

IN 46 COMP. GEN. 738 WE HELD THAT AGREEMENTS EXECUTED UNDER 5 U.S.C. 5724(I) MAY REQUIRE THE EMPLOYEE TO REMAIN WITH THE PARTICULAR AGENCY CONCERNED RATHER THAN "IN THE GOVERNMENT SERVICE." HOWEVER, THE FINN DECISION HOLDS THAT A GOVERNMENT AGENCY DOES NOT HAVE AUTHORITY UNDER SUBSECTION 5724(I) TO REQUIRE AN EMPLOYEE TO SIGN AN AGREEMENT TO REMAIN IN THE SERVICE OF THAT PARTICULAR AGENCY FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER. IN VIEW OF THAT DECISION, WHICH NOW IS FINAL, THE HOLDING IN 46 COMP. GEN. 738 NO LONGER IS FOR APPLICATION, EXCEPT FOR THE LAST PARAGRAPH THEREOF CONCERNING THE TAKING OF APPROPRIATE COLLECTION ACTION IF THE EMPLOYEE FAILS TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS. ACCORDINGLY, THE VOUCHER BY WHICH MR. NOWAK HAS REQUESTED REFUND OF THE AMOUNTS COLLECTED FROM HIM MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT. THAT VOUCHER IS RETURNED HEREWITH.

IT FOLLOWS FROM THE ABOVE THAT EMPLOYEES OF THE BUREAU NO LONGER SHOULD BE REQUIRED TO AGREE TO REMAIN IN THE SERVICE OF THE FBI IN CONNECTION WITH THEIR TRANSFERS.

IN ADDITION TO THE ABOVE, YOU ASK WHETHER THE LANGUAGE OF AGREEMENTS EXECUTED BY APPOINTEES TO MANPOWER SHORTAGE POSITIONS SHOULD BE REVISED TO REQUIRE ONLY THAT THE EMPLOYEE REMAIN "IN THE GOVERNMENT SERVICE" RATHER THAN "IN THE SERVICE OF THE FEDERAL BUREAU OF INVESTIGATION." IN THAT RESPECT, SUBSECTION 5723(B) OF 5 U.S.C. PROVIDES:

(B) AN AGENCY MAY PAY TRAVEL AND TRANSPORTATION EXPENSES UNDER SUBSECTION (A) OF THIS SECTION ONLY AFTER THE INDIVIDUAL SELECTED OR ASSIGNED AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS APPOINTMENT OR ASSIGNMENT, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL WHICH ARE ACCEPTABLE TO THE AGENCY CONCERNED. IF THE INDIVIDUAL VIOLATES THE AGREEMENT, THE MONEY SPENT BY THE UNITED STATES FOR THE EXPENSES IS RECOVERABLE FROM THE INDIVIDUAL AS A DEBT DUE THE UNITED STATES.

THE ABOVE-QUOTED LANGUAGE IS SUBSTANTIALLY THE SAME AS THAT APPEARING IN SUBSECTION 5724(I) WHICH WAS CONSTRUED BY THE COURT OF CLAIMS IN FINN V UNITED STATES, SUPRA. IN THAT DECISION THE COURT STRESSED THE FACT THAT THE LANGUAGE OF SUBSECTION 5724(I) REQUIRES ONLY THAT THE EMPLOYEE AGREE TO REMAIN "IN THE GOVERNMENT SERVICE." IT IS OUR OPINION, THEREFORE, THAT AGREEMENTS EXECUTED UNDER 5 U.S.C. 5723(B) MAY REQUIRE ONLY THAT THE EMPLOYEE REMAIN IN THE GOVERNMENT SERVICE.