B-174823, JAN 26, 1972

B-174823: Jan 26, 1972

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VAN BRUNT WAS APPOINTED TO THE POSITION BECAUSE OF THE ERROR OF THE EMPLOYING AGENCY. SECRETARY: THIS WILL REFER TO THE ACTION TAKEN BY YOUR DEPARTMENT IN COLLECTING THE AMOUNT OF $1. VAN BRUNT WAS SELECTED FOR THE POSITION OF GEOPHYSICIST. IMMEDIATELY PRIOR TO HIS APPOINTMENT HE WAS EMPLOYED IN A CARTOGRAPHER POSITION WITH THE NAVAL OCEANOGRAPHIC OFFICE. THERE IS AN INDICATION THAT THE SUBJECT CERTIFICATE IMPROPERLY RATED THE EMPLOYEE AS QUALIFIED FOR THE GEOPHYSICIST POSITION BUT WITHOUT ANY FAULT ON THE PART OF THE EMPLOYEE. AFTER SOME 8 WEEKS ON THE JOB IT BECAME EVIDENT TO THE EMPLOYEE'S SUPERVISOR THAT HIS PERFORMANCE WAS DEFICIENT IN TERMS OF WHAT WAS REQUIRED BY THE OFFICIAL DESCRIPTION FOR THE SUBJECT POSITION.

B-174823, JAN 26, 1972

CIVILIAN EMPLOYEE - TRANSPORTATION EXPENSES - INVOLUNTARY SEPARATION DECISION REGARDING THE COLLECTION OF $1,888 FROM THOMAS E. VAN BRUNT, A FORMER EMPLOYEE OF THE BUREAU OF MINES. THE SUBJECT MONIES REPRESENTED TRANSPORTATION EXPENSES PREVIOUSLY ALLOWED INCIDENT TO MR. VAN BRUNT'S APPOINTMENT TO A MANPOWER-SHORTAGE POSITION. SINCE MR. VAN BRUNT WAS APPOINTED TO THE POSITION BECAUSE OF THE ERROR OF THE EMPLOYING AGENCY, HIS SEPARATION BY RESIGNATION MAY, IN THIS CASE, BE CONSIDERED AS BEING FOR REASONS BEYOND THE EMPLOYEE'S CONTROL, AND THUS INVOLUNTARY. ACCORDINGLY, GAO WOULD NOT OBJECT TO A REFUND OF THE AMOUNT AS PROVIDED BY 5 U.S.C. 5723 AND 5724.

TO MR. SECRETARY:

THIS WILL REFER TO THE ACTION TAKEN BY YOUR DEPARTMENT IN COLLECTING THE AMOUNT OF $1,888 FROM MR. THOMAS E. VAN BRUNT, A FORMER EMPLOYEE OF THE BUREAU OF MINES, DENVER, COLORADO, REPRESENTING TRANSPORTATION EXPENSES PREVIOUSLY ALLOWED INCIDENT TO HIS APPOINTMENT TO A MANPOWER SHORTAGE POSITION ON JULY 1, 1970.

THE RECORD DISCLOSES THAT MR. VAN BRUNT WAS SELECTED FOR THE POSITION OF GEOPHYSICIST, GS-1313-7, FROM A CERTIFICATE OF ELIGIBLES (FC 7-61 2635) ISSUED MAY 5, 1970. IMMEDIATELY PRIOR TO HIS APPOINTMENT HE WAS EMPLOYED IN A CARTOGRAPHER POSITION WITH THE NAVAL OCEANOGRAPHIC OFFICE, SUITLAND, MARYLAND. THERE IS AN INDICATION THAT THE SUBJECT CERTIFICATE IMPROPERLY RATED THE EMPLOYEE AS QUALIFIED FOR THE GEOPHYSICIST POSITION BUT WITHOUT ANY FAULT ON THE PART OF THE EMPLOYEE. APPARENTLY, THE APPOINTING PERSONNEL OFFICERS HAD THE OPPORTUNITY TO FULLY EVALUATE THE DATA SUPPORTING HIS APPLICATION FOR THE POSITION BEFORE DECIDING TO APPOINT HIM FROM THE REGISTER. AFTER SOME 8 WEEKS ON THE JOB IT BECAME EVIDENT TO THE EMPLOYEE'S SUPERVISOR THAT HIS PERFORMANCE WAS DEFICIENT IN TERMS OF WHAT WAS REQUIRED BY THE OFFICIAL DESCRIPTION FOR THE SUBJECT POSITION. THE EMPLOYEE WAS ADVISED AT THAT TIME THAT SUCH DEFICIENCY MIGHT NECESSITATE HIS SEPARATION DURING THE PROBATIONARY PERIOD FOR FAILURE TO DEMONSTRATE THE KNOWLEDGE AND ABILITIES REQUIRED TO QUALIFY FOR THE POSITION. THE EMPLOYEE THEN RESIGNED, EFFECTIVE SEPTEMBER 25, 1970, AND SUBSEQUENTLY REENTERED FEDERAL EMPLOYMENT ON DECEMBER 14, 1970.

IN THIS CONNECTION WE NOTE THAT UNDER APPLICABLE CIVIL SERVICE COMMISSION REGULATIONS (5 CFR 315.804) AN AGENCY HAS AUTHORITY TO TERMINATE AN EMPLOYEE SERVING A PROBATIONARY PERIOD WHEN HIS WORK PERFORMANCE FAILS TO "DEMONSTRATE HIS FITNESS OR HIS QUALIFICATIONS FOR CONTINUED EMPLOYMENT." THE AGENCY IS REQUIRED MERELY TO GIVE WRITTEN NOTICE AS TO WHAT ARE THE INADEQUACIES OF HIS PERFORMANCE, AND THERE IS ONLY A NARROWLY PRESCRIBED RIGHT OF APPEAL, APPARENTLY UNAVAILING IN THIS CASE. SEE 5 CFR 315.806(B).

WE HAVE BEEN INFORMALLY ADVISED BY AN ADMINISTRATIVE OFFICIAL CLOSELY INVOLVED IN THE MATTER THAT THE EMPLOYEE'S SEPARATION (UNDER THE ABOVE AUTHORITY) WAS INEVITABLE. ALSO, THE EMPLOYEE WAS APPARENTLY ADVISED THAT A RESIGNATION IN LIEU OF SUCH SEPARATION WOULD PROBABLY REQUIRE REFUND OF THE TRANSPORTATION ALLOWANCES IN QUESTION. WE NOTE THAT THE ADMINISTRATIVE OFFICIALS CORRESPONDING WITH OUR OFFICE CONSIDERED THAT, UNDER THE CIRCUMSTANCES, THEY HAD "NO ALTERNATIVE OTHER THAN TO COLLECT THE TRAVEL EXPENSES, SINCE MR. VAN BRUNT HAD SIGNED AN EMPLOYMENT AGREEMENT."

UNDER THE APPLICABLE PROVISIONS OF LAW, 5 U.S.C. 5723 AND 5724, A SEPARATED EMPLOYEE MAY BE RELIEVED OF LIABILITY FOR REPAYMENT OF TRANSPORTATION AND OTHER EXPENSES PAID BY THE GOVERNMENT IN CONNECTION WITH HIS APPOINTMENT TO A MANPOWER-SHORTAGE POSITION OR UPON TRANSFER OF HIS OFFICIAL STATION. THIS IS ON THE BASIS OF A DETERMINATION OF THE HEAD OF THE AGENCY CONCERNED THAT SUCH SEPARATION WAS FOR REASONS BEYOND THE CONTROL OF THE EMPLOYEE WHICH ARE ACCEPTABLE TO THE AGENCY.

OUR DECISIONS HAVE RECOGNIZED CIRCUMSTANCES WHERE, EVEN THOUGH APPEARING TO BE VOLUNTARY, A SEPARATION BY RESIGNATION MAY BE REGARDED AS BEING FOR REASONS BEYOND THE EMPLOYEE'S CONTROL, THUS PERMITTING CANCELLATION OF THE INDEBTEDNESS. SEE 47 COMP. GEN. 503 (1968) CITING 30 ID. 457 (1951); B- 103172, MAY 18, 1967; AND B-170392, AUGUST 5, 1970; COPIES OF THE LATTER TWO DECISIONS ENCLOSED. COMPARE ALSO 46 COMP. GEN. 724 (1967). IN VIEW OF THE PARTICULAR CIRCUMSTANCES APPLICABLE IN THIS CASE, WE WOULD NOT BE REQUIRED TO OBJECT IF YOUR DEPARTMENT UPON FURTHER CONSIDERATION CONCLUDES THAT THE FORMER EMPLOYEE WAS SEPARATED FOR REASONS BEYOND HIS CONTROL WHICH ARE ACCEPTABLE TO YOUR DEPARTMENT. IN SUCH EVENT THE AMOUNT COLLECTED SHOULD BE REFUNDED TO MR. VAN BRUNT OR RESTORED TO HIS RETIREMENT FUND ($1,272.14) AS APPROPRIATE.

WE REQUEST THAT YOU NOTIFY CONGRESSMAN JOEL T. BROYHILL OF YOUR FINAL ACTION IN THE MATTER.