B-173280, AUG 20, 1971, 51 COMP GEN 112

B-173280, AUG 20, 1971, 51 COMP GEN 112

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - TRANSFERS BETWEEN AGENCIES APPLYING THE RATIONAL OF FINN V UNITED STATES, 428 F. 2D 828, TO TRANSFERS OF EMPLOYEES BETWEEN AGENCIES, THE TERM "EMPLOYEE" MAY NOT BE DEFINED TO MEAN AN INDIVIDUAL EMPLOYED BY A PARTICULAR AGENCY AS OPPOSED TO ONE EMPLOYED BY ANY GOVERNMENT AGENCY, THEREFORE, NOTWITHSTANDING EMPLOYEES BREACHED THE 12-MONTH EMPLOYMENT AGREEMENTS THEY SIGNED TO REMAIN IN THE SERVICE AFTER AN INTRA-AGENCY TRANSFER, THEY ARE ENTITLED, NO BREAK IN SERVICE HAVING OCCURRED, TO REIMBURSEMENT UNDER 5 U.S.C. 5724A ON THE BASIS OF THE INTRA-AGENCY TRANSFER FOR THE EXPENSES OF A HOUSE PURCHASE AT THE NEW STATION MADE WITHIN THE 1-YEAR TIME LIMIT PRESCRIBED, WHETHER THE PURCHASE AND/OR SETTLEMENT OCCURRED BEFORE OR AFTER TRANSFER TO ANOTHER AGENCY, AND IT IS IMMATERIAL IF THE EMPLOYEES NEGOTIATED FOR TRANSFER TO THE OTHER AGENCY AFTER SIGNING AN EMPLOYMENT AGREEMENT, FOR THE AGREEMENT ONLY OBLIGATES THEM TO SERVE IN THE GOVERNMENT, NOT IN A PARTICULAR AGENCY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 20, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1971, REQUESTING OUR DECISION CONCERNING VARIOUS QUESTIONS AS TO THE PAYMENT OF THE COSTS OF PURCHASING HOMES BY TWO EMPLOYEES WHO TRANSFERRED FROM REGIONAL OFFICES OF THE CIVIL SERVICE COMMISSION TO THE WASHINGTON OFFICE AND BEFORE COMPLETING THEIR SERVICE AGREEMENTS WITH THE COMMISSION TRANSFERRED TO OTHER AGENCIES.

YOU STATE THE FACTS IN THE TWO CASES ARE AS FOLLOWS:

EMPLOYEE A WAS NOTIFIED OF HIS TRANSFER FROM NEW MEXICO TO WASHINGTON, D.C., ON JUNE 4, 1970; AFTER SIGNING THE AGREEMENT TO REMAIN IN SERVICE HE REPORTED FOR DUTY WITH THE CIVIL SERVICE COMMISSION IN WASHINGTON, D.C. ON AUGUST 8, 1970; APPROXIMATELY 2 MONTHS LATER, ON SEPTEMBER 26, 1970, HE TRANSFERRED FROM THE CIVIL SERVICE COMMISSION TO THE DEPARTMENT OF INTERIOR WHERE HE IS PRESENTLY EMPLOYED. WITH REGARD TO THE SALE OF HIS NEW MEXICO RESIDENCE, THE SALE CONTRACT WAS SIGNED AND SETTLEMENT OCCURRED BEFORE HE REPORTED FOR DUTY WITH THIS COMMISSION IN WASHINGTON. WITH REGARD TO THE PURCHASE OF HIS RESIDENCE IN THE WASHINGTON METROPOLITAN AREA, THE EMPLOYEE SIGNED A PURCHASE CONTRACT ON JULY 25, 1970, AND RENTED THE RESIDENCE TO BE PURCHASED FROM SEPTEMBER 6, 1970, TO JANUARY 26, 1971. THE LATTER DATE (JANUARY 26, 1971) IS THE SETTLEMENT DATE ON THE PURCHASED RESIDENCE WHICH IS 4 MONTHS AFTER HE LEFT THE EMPLOY OF THIS COMMISSION.

EMPLOYEE B WAS NOTIFIED OF HIS TRANSFER FROM CALIFORNIA TO WASHINGTON, D.C., ON NOVEMBER 27, 1970; AFTER SIGNING THE AGREEMENT TO REMAIN IN SERVICE HE REPORTED FOR DUTY WITH THE CIVIL SERVICE COMMISSION IN WASHINGTON, D.C., ON FEBRUARY 8, 1971; 1 MONTH LATER, ON MARCH 8, 1971, HE TRANSFERRED FROM THE CIVIL SERVICE COMMISSION TO THE GOVERNMENT OF THE DISTRICT OF COLUMBIA WHERE HE IS PRESENTLY EMPLOYED. WITH REGARD TO THE SALE OF HIS CALIFORNIA RESIDENCE, THE SALE CONTRACT WAS SIGNED JANUARY 16, 1971, AND SETTLEMENT OCCURRED ON FEBRUARY 16, 1971, WITH REGARD TO THE PURCHASE OF HIS RESIDENCE IN THE WASHINGTON METROPOLITAN AREA, THE FORMER EMPLOYEE HAS NOT YET SIGNED A CONTRACT TO PURCHASE BUT HAS INFORMED US THAT HE INTENDS TO DO SO WITHIN THE 1 YEAR PERIOD REFERRED TO IN SEC 4.1.E. OF CIRCULAR A-56 AND THAT HE INTENDS TO CLAIM REIMBURSEMENT EXPENSES FROM THE CIVIL SERVICE COMMISSION FOR EXPENSES INVOLVED IN THAT PURCHASE.

WHILE YOU ARE AWARE OF THE DECISION OF THE COURT OF CLAIMS IN FINN V UNITED STATES, 428 F. 2D 828 (1970), 192 CT. CL. 814, AND DECISION 50 COMP. GEN. 374 (1970), YOU DO NOT CONSIDER THAT EITHER DECISION IS TRULY DISPOSITIVE OF THE ISSUE CONCERNING REIMBURSEMENT OF THE EXPENSES INCIDENT TO THE PURCHASE OF THE HOMES IN THE WASHINGTON AREA SINCE EMPLOYEE A DID NOT MAKE SETTLEMENT ON HIS HOUSE WHILE HE WAS AN EMPLOYEE OF THE COMMISSION AND EMPLOYEE B HAS NOT YET SIGNED A CONTRACT FOR THE PURCHASE OF A RESIDENCE.

INASMUCH AS YOU ARE IN DOUBT AS TO WHETHER YOU MAY PROPERLY REIMBURSE THE EMPLOYEES IN QUESTION FOR EXPENSES OF PURCHASING HOMES IN THE WASHINGTON AREA, YOU ASK THE FOLLOWING QUESTIONS:

1. WHEN AN EMPLOYEE OF THE CIVIL SERVICE COMMISSION CONTRACTED TO PURCHASE A RESIDENCE AT HIS NEW OFFICIAL STATION IN WASHINGTON, D.C., BEFORE LEAVING THE EMPLOY OF THE COMMISSION FOR OTHER GOVERNMENT EMPLOYMENT, IS THE COMMISSION OR HIS PRESENT EMPLOYING AGENCY OBLIGATED TO REIMBURSE HIM FOR THE EXPENSES OF THAT PURCHASE WHEN THE SETTLEMENT DATE RELATIVE TO THE PURCHASE OCCURRED AFTER THE INDIVIDUAL LEFT THE EMPLOY OF THE COMMISSION?

2. WHEN A FORMER EMPLOYEE OF THE CIVIL SERVICE COMMISSION CONTRACTED TO PURCHASE A RESIDENCE AT HIS NEW OFFICIAL STATION IN WASHINGTON, D.C., AND MADE SETTLEMENT ON THAT PURCHASE CONTRACT AFTER LEAVING THE EMPLOY OF THE EMPLOYMENT WITH ANOTHER "AGENCY" (AS THE QUOTED TERM IS DEFINED IN 5 U.S.C. SEC 5721), IS THE COMMISSION OR HIS PRESENT EMPLOYING AGENCY OBLIGATED TO REIMBURSE HIM FOR THE RESIDENCE PURCHASE EXPENSES?

3. IF THE COMMISSION IS HELD TO BE OBLIGATED TO PAY THE REIMBURSEMENT EXPENSES UNDER EITHER QUESTION 1 OR 2, WOULD IT AFFECT THE HOLDING IF THE COMMISSION ESTABLISHED THAT NEGOTIATIONS FOR THE EMPLOYMENT WHICH OCCURRED AFTER LEAVING THE COMMISSION BEGAN PRIOR TO THE FORMER EMPLOYEE'S SIGNING OF THE AGREEMENT TO REMAIN IN SERVICE?

4. IF THE ANSWER TO QUESTION 3 IS IN THE AFFIRMATIVE, WOULD THE PRESENT EMPLOYING AGENCY BE OBLIGATED TO BEAR THE REIMBURSEMENT EXPENSES?

SECTION 5724A OF TITLE 5, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT CONSIDERED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY FOR ADMINISTRATIVE EXPENSES ARE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF AN EMPLOYEE FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 5724(A) OF THIS TITLE:

(4) EXPENSES OF THE SALE OF THE RESIDENCE (OR THE SETTLEMENT OF AN UNEXPIRED LEASE) OF THE EMPLOYEE AT THE OLD STATION AND PURCHASE OF A HOME AT THE NEW OFFICIAL STATION REQUIRED TO BE PAID BY HIM WHEN THE OLD AND NEW OFFICIAL STATIONS ARE LOCATED WITHIN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. ***

SUBSECTION 5724(A) OF TITLE 5, U.S.C. PROVIDES FOR THE PAYMENT FROM GOVERNMENT FUNDS OF THE TRAVEL EXPENSES OF AN EMPLOYEE AND THE TRANSPORTATION OF HIS DEPENDENTS AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS WHEN HE IS TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION OR AGENCY TO ANOTHER FOR PERMANENT DUTY.

FOR THE PURPOSE OF THE ABOVE STATUTES THE TERM "EMPLOYEE" MEANS AN INDIVIDUAL EMPLOYED IN OR UNDER AN AGENCY AND THE TERM "AGENCY" INCLUDES THE GOVERNMENT UNITS INVOLVED IN THIS CASE. 5 U.S.C. 5721. SECTION 1.2 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 PROVIDES IN PERTINENT PART AS FOLLOWS:

1.2 DEFINITIONS. AS USED IN THESE REGULATIONS, AND UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THESE REGULATIONS THE FOLLOWING DEFINITIONS APPLY:

B. "EMPLOYEE" MEANS A CIVILIAN OFFICER OR EMPLOYEE OF A DEPARTMENT AS DEFINED HEREIN. ***

C. "DEPARTMENT" MEANS AN EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT OR OTHER EXECUTIVE AGENCY, WHOLLY OWNED GOVERNMENT CORPORATION, AS DEFINED IN SECTION 101 OF THE GOVERNMENT CORPORATION CONTROL ACT, AS AMENDED, OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.

IT IS THE COMMISSION'S VIEW THAT IT WOULD NOT BE APPROPRIATE TO USE AN AGENCY'S APPROPRIATIONS TO REIMBURSE A FORMER EMPLOYEE FOR EXPENSES INCURRED AFTER HE LEFT THE AGENCY'S EMPLOYMENT. HOWEVER, NEITHER THE CONTROLLING STATUTES NOR THE IMPLEMENTING REGULATIONS DEFINE THE TERM "EMPLOYEE" AS AN INDIVIDUAL EMPLOYED BY A PARTICULAR GOVERNMENT ORGANIZATION. IN THE FINN CASE THE COURT HELD THAT AN AGENCY COULD NOT GIVE A TERM IN THE RELOCATION EXPENSES STATUTES A MORE RESTRICTIVE MEANING THAN THAT USED IN SUCH STATUTES AND THAT THE TERM "GOVERNMENT SERVICE" WAS NOT TO BE REGARDED AS SYNONYMOUS WITH "AGENCY SERVICE." IN OUR DECISION 50 COMP. GEN. 374, NOVEMBER 20, 1970, WE FOLLOWED THE FINN CASE. APPLYING THE SAME RATIONALE USED IN THE FINN CASE, WE ARE OF THE VIEW THAT THE TERM "EMPLOYEE" MAY NOT BE DEFINED TO MEAN AN INDIVIDUAL EMPLOYED BY A PARTICULAR AGENCY AS OPPOSED TO ONE EMPLOYED BY ANY GOVERNMENT AGENCY WHERE, AS HERE, THERE HAS BEEN A TRANSFER BETWEEN AGENCIES. ACCORDINGLY, WHILE THE INDIVIDUALS IN THE PRESENT CASE ARE FORMER EMPLOYEES OF THE COMMISSION, THEY ARE NEVERTHELESS "EMPLOYEES" WITHIN THE MEANING OF THE CONTROLLING STATUTES AND REGULATIONS. THEIR RIGHTS TO REIMBURSEMENT OF EXPENSES AS AUTHORIZED BY SECTIONS 5724 AND 5724A OF TITLE 5, UNITED STATES CODE, AROSE BY REASON OF THE TRANSFERS FROM THE REGIONAL OFFICES TO WASHINGTON, D.C. IN VIEW OF THE HOLDING IN THE FINN CASE, THESE RIGHTS MAY NOT BE EXTINGUISHED BY THEIR SUBSEQUENT EMPLOYMENT, WITHOUT A BREAK IN SERVICE, WITH ANOTHER AGENCY. MOREOVER, THERE IS NO BASIS UPON WHICH APPROPRIATIONS OF AN ACQUIRING AGENCY MAY BE VIEWED AS AVAILABLE ONLY FOR EXPENSES INCURRED BY AN EMPLOYEE WHO REMAINS IN THE EMPLOYMENT OF SUCH AGENCY.

REGARDING QUESTION 1 THE EMPLOYEE INVOLVED CONTRACTED TO PURCHASE THE HOUSE IN WASHINGTON BEFORE LEAVING YOUR COMMISSION. THE PURCHASE RESULTED FROM HIS TRANSFER TO YOUR COMMISSION. IN VIEW OF THIS AND SINCE REIMBURSEMENT OF THE EXPENSES OF THE PURCHASE MAY NOT BE CONDITIONED UPON AN EMPLOYEE REMAINING WITH A PARTICULAR AGENCY, THE FACT THAT THE INDIVIDUAL TRANSFERRED TO ANOTHER AGENCY BEFORE THE SETTLEMENT DATE IS IMMATERIAL. SEE 46 COMP. GEN. 738 (1967), MODIFIED IN PART BY THE DECISION OF NOVEMBER 20, 1970. THEREFORE, THE COMMISSION IS OBLIGATED TO REIMBURSE HIM FOR THE EXPENSES OF THE PURCHASE ALTHOUGH THE EMPLOYEE PAID THEM AFTER TRANSFERRING FROM THE COMMISSION.

THE EMPLOYEE INVOLVED IN QUESTION 2 HAS NOT PURCHASED A HOUSE AT HIS NEW STATION AND HAS TRANSFERRED FROM YOUR AGENCY. HOWEVER, ANY PURCHASE MADE WITHIN THE TIME LIMIT PROVIDED BY LAW MAY REASONABLY BE RELATED TO THE TRANSFER ORDERED BY YOUR AGENCY AND THE SUBSEQUENT TRANSFER DOES NOT DIVEST HIM OF HIS RIGHTS UNDER THE PRIOR TRANSFER. THEREFORE, SHOULD THE PURCHASE BE MADE WITHIN THE 1-YEAR TIME LIMIT AND THE EMPLOYEE IS OTHERWISE ENTITLED TO REIMBURSEMENT, THE COMMISSION WOULD BE OBLIGATED TO REIMBURSE THE EMPLOYEE.

IN QUESTION 3 YOU ASK WHETHER IT WOULD AFFECT THE HOLDING IN QUESTIONS 1 AND 2 IF IT WERE ESTABLISHED THAT THE EMPLOYEE IN EITHER CASE HAD NEGOTIATED WITH THE AGENCY TO WHICH HE TRANSFERRED AFTER SIGNING AN AGREEMENT WITH THE COMMISSION TO REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS TRANSFER. AS NOTED ABOVE, AN EMPLOYEE WHO SIGNS A SERVICE AGREEMENT INCIDENT TO A TRANSFER IS OBLIGATED ONLY TO SERVE IN THE GOVERNMENT, NOT WITH A PARTICULAR AGENCY. ALSO, THE FACT THAT AN EMPLOYEE NEGOTIATES WITH ANOTHER AGENCY FOR A POSITION DOES NOT NECESSARILY INDICATE THAT HE WILL OBTAIN THE POSITION SOUGHT. IN ANY EVENT WHEN AN EMPLOYEE TRANSFERS FROM ONE AGENCY TO ANOTHER, THE AGENCY TO WHICH HE TRANSFERS IS OBLIGATED TO PAY ONLY THE EXPENSES INCIDENT TO THE INTERAGENCY TRANSFER, NOT THOSE INCIDENT TO A PRIOR TRANSFER. SEE 29 COMP. GEN. 103 (1949). IN VIEW OF THESE FACTORS AND SINCE THE TRANSFERS TO WASHINGTON, D.C., WERE MADE IN THE INTEREST OF THE COMMISSION, IT WOULD NOT AFFECT THE HOLDING UNDER EITHER QUESTION 1 OR 2 IF THE COMMISSION ESTABLISHED THAT EITHER EMPLOYEE BEGAN NEGOTIATIONS FOR TRANSFER TO ANOTHER AGENCY BEFORE HE SIGNED A SERVICE AGREEMENT WITH THE COMMISSION.

SINCE QUESTION 3 WAS ANSWERED IN THE NEGATIVE, NO RESPONSE TO QUESTION 4 IS REQUIRED.