B-172118, MAY 25, 1971

B-172118: May 25, 1971

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NOTWITHSTANDING THAT SUCH DETERMINATION WAS MADE SUBSEQUENT TO THE APPOINTMENT. BECAUSE ONE CONDITION OF CLAIMANT'S EMPLOYMENT WAS THAT FAA WOULD PURSUE EVERY POSSIBLE AVENUE TO SECURE SUCH AUTHORIZATION AND CLAIMANT IS WILLING TO SIGN THE 12 MONTH SERVICE AGREEMENT. WILL OFFER NO OBJECTION TO THE REIMBURSEMENT OF TRAVEL. SCHULLERY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. LANDIES WAS EMPLOYED BY THE FAA AS AN ORGANIZATIONAL DEVELOPMENT OFFICER (GS-14) ON 3 AUGUST 1970. THE COMMISSION RESPONDED TO THE REQUEST AS FOLLOWS: "'WE HAVE DETERMINED THAT A MANPOWER SHORTAGE EXISTED IN THE CLEVELAND. LANDIES WAS SELECTED. "'THE COMMISSION. DOES NOT HAVE AUTHORITY TO GRANT RETROACTIVE REQUESTS FOR PAYMENT OF TRAVEL AND TRANSPORTATION TO A FIRST POST OF DUTY.

B-172118, MAY 25, 1971

TRAVEL AND TRANSPORTATION EXPENSES - NEW APPOINTEE DECISION DENYING REIMBURSEMENT OF REAL ESTATE EXPENSES, BUT PERMITTING REIMBURSEMENT FOR TRAVEL, TRANSPORTATION AND SHIPMENT OF HOUSEHOLD EFFECTS TO ROBERT W. LANDIES, AS A "NEW APPOINTEE" OF THE FAA. OFFICE OF MANAGEMENT AND BUDGET CIR. NO. A-56, SECTION 4.4 AND 3.2(B) EXPRESSLY PRECLUDE REIMBURSEMENT FOR REAL ESTATE AND MISCELLANEOUS EXPENSES TO NEW APPOINTEES TO POSITIONS FOR WHICH THE CIVIL SERVICE COMMISSION HAS DETERMINED A MANPOWER SHORTAGE EXISTED AT THE TIME OF APPOINTMENT. HOWEVER, NOTWITHSTANDING THAT SUCH DETERMINATION WAS MADE SUBSEQUENT TO THE APPOINTMENT, BECAUSE ONE CONDITION OF CLAIMANT'S EMPLOYMENT WAS THAT FAA WOULD PURSUE EVERY POSSIBLE AVENUE TO SECURE SUCH AUTHORIZATION AND CLAIMANT IS WILLING TO SIGN THE 12 MONTH SERVICE AGREEMENT, THE COMP. GEN. WILL OFFER NO OBJECTION TO THE REIMBURSEMENT OF TRAVEL, TRANSPORTATION AND SHIPMENT OF HOUSEHOLD EFFECTS EXPENSES IN ACCORDANCE WITH 5 U.S.C. 5723.

TO MR. R. J. SCHULLERY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1971, AND ENCLOSURES, IN WHICH YOU REQUEST OUR DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT CERTAIN ITEMS OF EXPENSE INCURRED BY MR. ROBERT W. LANDIES AS A "NEW APPOINTEE" OF THE FEDERAL AVIATION ADMINISTRATION (FAA). YOU STATE THAT:

"MR. LANDIES WAS EMPLOYED BY THE FAA AS AN ORGANIZATIONAL DEVELOPMENT OFFICER (GS-14) ON 3 AUGUST 1970. ON 12 OCTOBER 1970, THE FAA SUBMITTED TO THE CIVIL SERVICE COMMISSION A REQUEST FOR DETERMINATION OF MANPOWER SHORTAGE - ORGANIZATIONAL DEVELOPMENT OFFICER. ON 21 OCTOBER 1970, THE COMMISSION RESPONDED TO THE REQUEST AS FOLLOWS:

"'WE HAVE DETERMINED THAT A MANPOWER SHORTAGE EXISTED IN THE CLEVELAND, OHIO, AREA (AREA OF EMPLOYMENT) FOR ONE ORGANIZATIONAL DEVELOPMENT OFFICER, GS-301-14, AT THE TIME MR. ROBERT W. LANDIES WAS SELECTED.

"'THE COMMISSION, HOWEVER, DOES NOT HAVE AUTHORITY TO GRANT RETROACTIVE REQUESTS FOR PAYMENT OF TRAVEL AND TRANSPORTATION TO A FIRST POST OF DUTY. REQUESTS MUST BE DIRECTED THROUGH YOUR AGENCY HEADQUARTERS TO THE GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C., WHICH HAS JURISDICTION IN SUCH CASES INVOLVING RETROACTIVE PAYMENT OF FUNDS.'"

YOU EXPRESS DOUBT AS TO WHETHER REIMBURSEMENT FOR THE EXPENSES CLAIMED BY THE EMPLOYEE FOR TRAVEL AND TRANSPORTATION ($16.50) AND SHIPMENT OF HOUSEHOLD EFFECTS ($923.98) IS PROPER. FURTHER, IT IS YOUR OPINION THAT THE PROVISIONS OF SECTION 4.4 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED, PROHIBITS REIMBURSEMENT OF THE $625.55 CLAIMED FOR REAL ESTATE EXPENSES AND THE $200 ALLOWANCE FOR MISCELLANEOUS EXPENSES.

OUR REVIEW OF THE RECORD DISCLOSES THAT ONE OF THE CONDITIONS OF THE EMPLOYMENT OF MR. LANDIES WAS THAT YOUR AGENCY WOULD PURSUE EVERY POSSIBLE AVENUE TO SECURE AUTHORIZATION FOR THE PAYMENT OF HIS TRAVEL AND TRANSPORTATION OF HIS HOUSEHOLD GOODS TO HIS FIRST DUTY STATION AND THAT HE ACCEPTED SUCH TERMS AS A CONDITION OF HIS EMPLOYMENT.

INFORMAL CONTACT WITH OFFICIALS OF YOUR OFFICE REVEALS THAT THE CLAIMANT IS STILL EMPLOYED BY FAA AND THAT HE DID NOT SIGN AN AGREEMENT TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR 12 MONTHS FOLLOWING THE DATE HE REPORTED FOR DUTY. HOWEVER, IT IS UNDERSTOOD THAT MR. LANDIES IS WILLING TO SIGN SUCH AN AGREEMENT.

5 U.S.C. 5723 PROVIDES, IN PART, AS FOLLOWS:

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND SUBJECT TO SUBSECTIONS (B) AND (C) OF THIS SECTION, AN AGENCY MAY PAY FROM ITS APPROPRIATIONS -

"(1) TRAVEL EXPENSES OF A NEW APPOINTEE, OR A STUDENT TRAINEE WHEN ASSIGNED ON COMPLETION OF COLLEGE WORK, TO A POSITION IN THE UNITED STATES FOR WHICH THE CIVIL SERVICE COMMISSION DETERMINES THERE IS A MANPOWER SHORTAGE; AND

"(2) TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS TO THE EXTENT AUTHORIZED BY SECTION 5724 OF THIS TITLE; FROM HIS PLACE OF RESIDENCE AT THE TIME OF SELECTION OR ASSIGNMENT TO HIS DUTY STATION. ***

"(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."

OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, SECTION 5.1A, PROVIDES:

"THE PROVISIONS OF THIS SECTION APPLY TO PERSONS APPOINTED IN THE DEPARTMENTS IN THE 50 STATES AND THE DISTRICT OF COLUMBIA TO POSITIONS FOR WHICH THE CIVIL SERVICE COMMISSION DETERMINES THERE IS A MANPOWER SHORTAGE; PROVIDED THEY HAVE SIGNED THE AGREEMENT REQUIRED IN SUBSECTION 1.3C. *** "

MR. LANDIES REPORTED FOR DUTY ON AUGUST 3, 1970, AND APPROXIMATELY 2 MONTHS LATER ON OCTOBER 12, 1970, FAA OFFICIALS SUBMITTED A REQUEST FOR DETERMINATION OF MANPOWER SHORTAGE TO THE CIVIL SERVICE COMMISSION. THE FILE DOES NOT SHOW WHY A BELATED REQUEST WAS MADE, BUT IN ANY EVENT, SUCH DELAY WAS NOT EXCESSIVE AND WAS NOT THE FAULT OF THE EMPLOYEE. THE COMMISSION DETERMINED THAT A MANPOWER SHORTAGE DID IN FACT EXIST IN THE CLEVELAND, OHIO, AREA FOR ONE ORGANIZATIONAL DEVELOPMENT OFFICER, GS-301- 14, AT THE TIME MR. LANDIES WAS SELECTED.

IN VIEW OF THE FOREGOING, THIS OFFICE WOULD OFFER NO OBJECTION TO THE CERTIFICATION AND PAYMENT OF THAT PORTION OF THE VOUCHER COVERING THE TRAVEL AND TRANSPORTATION EXPENSES IN QUESTION, IF OTHERWISE CORRECT, PROVIDED MR. LANDIES EXECUTES AN AGREEMENT IN WRITING TO REMAIN IN THE GOVERNMENT FOR 12 MONTHS FROM THE DATE OF HIS APPOINTMENT ON AUGUST 3, 1970. SEE B-148524, APRIL 10, 1962, AND B-161599, JUNE 29, 1967, AND AUGUST 29, 1967, COPIES ENCLOSED.

IN REGARD TO THAT PORTION OF THE VOUCHER CLAIMING REIMBURSEMENT FOR REAL ESTATE EXPENSES AND THE MISCELLANEOUS EXPENSES ALLOWANCE, SECTIONS 4.4 AND 3.2(B) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, EXPRESSLY PRECLUDE REIMBURSEMENT FOR SUCH EXPENSES TO NEW APPOINTEES TO POSITIONS FOR WHICH THE CIVIL SERVICE COMMISSION HAS DETERMINED A MANPOWER SHORTAGE EXISTED AT THE TIME OF APPOINTMENTS.

THE VOUCHER AND OTHER PAPERS SUBMITTED WITH YOUR REQUEST ARE RETURNED HEREWITH FOR ACTION IN ACCORDANCE WITH THE FOREGOING.