B-185908, FEB 2, 1977

B-185908, FEB 2, 1977

EMPLOYEE WAS AUTHORIZED PRE-EMPLOYMENT INTERVIEW TRAVEL EXPENSES. GENERAL RULE IS THAT EMPLOYEE MAY BE ALLOWED SUCH EXPENSES WHEN APPLYING FOR DIFFERENT POSITION IF POSITION IS EXCEPTED POSITION OR IF THERE ARE ADDITIONAL ADMINISTRATIVE QUALIFICATIONS IMPOSED BY DEPARTMENT OR AGENCY. SINCE AGENCY HAS ESTABLISHED ADDITIONAL ADMINISTRATIVE QUALIFICATIONS FOR SUBJECT POSITION, PRE-EMPLOYMENT TRAVEL EXPENSES MAY BE ALLOWED IN THIS CASE. HOWEVER, FACT THAT EMPLOYEE MAY RECEIVE EXCEPTED APPOINTMENT UNDER INDIAN PREFERENCE ACT IS NOT ALONE DETERMINATIVE OF ENTITLEMENT TO PRE- EMPLOYMENT TRAVEL CLAIMED EXPENSES, ABSENT INDICATION THAT INTERVIEW WAS NECESSARY TO DETERMINE EMPLOYEE'S QUALIFICATIONS.

PETER P. THREE STARS - PRE-EMPLOYMENT INTERVIEW TRAVEL EXPENSES:

THE BUREAU OF INDIAN AFFAIRS REQUESTS OUR DECISION CONCERNING THE PAYMENT OF TRAVEL EXPENSES TO AN EMPLOYEE OF THE BUREAU FOR THE PURPOSE OF INTERVIEWING FOR ANOTHER POSITION IN THE BUREAU. MR. ROBERT CASWELL, AN AUTHORIZED CERTIFYING OFFICER OF THE BUREAU OF INDIAN AFFAIRS (BUREAU) BY LETTER OF JANUARY 21, 1976, HAS SUBMITTED THE VOUCHER OF PETER P. THREE STARS, AN EMPLOYEE OF THE BUREAU, CLAIMING TRAVEL EXPENSES UNDER THE FOLLOWING CIRCUMSTANCES.

BY TRAVEL AUTHORIZATION ACTION DATED OCTOBER 31, 1975, MR. THREE STARS WAS AUTHORIZED TO TRAVEL FROM BETHEL, ALASKA, VIA ANCHORAGE, ALASKA, TO PHOENIX, ARIZONA, FOR THE PURPOSE OF ATTENDING AN INTERVIEW IN PHOENIX FOR THE POSITION OF SUPERINTENDENT, SAN CARLOS AGENCY, A POSITION IN THE COMPETITIVE SERVICE. THE TRAVEL TO ANCHORAGE WAS NOT RELATED TO THE INTERVIEW AND THAT PORTION OF THE VOUCHER WHICH REPRESENTS THE COST OF ROUND TRIP TRAVEL FROM BETHEL TO ANCHORAGE HAS NOT BEEN QUESTIONED. MR. CASWELL DOES QUESTION ALL EXPENSES INCURRED INCIDENT TO TRAVEL FROM ANCHORAGE TO PHOENIX FOR THE PURPOSE OF THE INTERVIEW ON THE BASIS OF OUR DECISION 54 COMP.GEN.554 (1975). THAT DECISION HELD, QUOTING FROM THE SYLLABUS:

"CIVIL SERVICE COMMISSION (CSC) REQUEST THAT WE MODIFY DECISIONS, SUCH AS 31 COMP.GEN. 175 (1951), WHICH DO NOT ALLOW FEDERAL AGENCIES TO PAY PROSPECTIVE EMPLOYEES' TRAVEL EXPENSES INCIDENT TO INTERVIEWS FOR PURPOSE OF PERMITTING AGENCY TO DETERMINE THEIR QUALIFICATIONS FOR APPOINTMENT TO POSITIONS IN THE COMPETITIVE SERVICE IS GRANTED INSOFAR AS THE CSC CONCLUDES THAT THE POSITIONS ARE OF SUCH HIGH LEVEL OR HAVE SUCH PECULIAR CHARACTERISTICS THAT THE AGENCY IS BETTER SUITED TO DETERMINE THROUGH SUCH INTERVIEWS CERTAIN FACTORS OF THE APPOINTEES' SUITABILITY FOR THE POSITIONS WHICH THE CSC ITSELF CANNOT DETERMINE SINCE SUCH INTERVIEWS ARE NECESSARY TO DETERMINE THE PROSPECTIVE EMPLOYEES' QUALIFICATIONS."

HE ALSO STATES THAT DECISIONS OF THIS OFFICE HAVE PERMITTED REIMBURSEMENT FOR PRE-EMPLOYMENT INTERVIEW TRAVEL EXPENSES WHERE THE POSITION BEING FILLED WAS AN EXCEPTED POSITION. SEE 3 COMP.GEN. 490 (1924); 15 ID. 206 (1935). IN THIS REGARD HE STATES:

"IN THE BUREAU OF INDIAN AFFAIRS POSITIONS ARE IN THE EXCEPTED SERVICE, E.G., SCHEDULE A POSITIONS, WHEN . . . ' FILLED BY THE APPOINTMENT OF INDIANS WHO ARE ONE-FOURTH OR MORE INDIAN BLOOD.'"

THUS, THE COMPETITIVE POSITION THAT MR. THREE STARS APPLIED FOR WOULD BECOME AN EXCEPTED POSITION WHEN FILLED BY A QUALIFIED INDIAN. MR. CASWELL ALSO STATES THAT MR. THREE STARS IS AN EXCEPTED APPOINTEE AND WERE HE TO BE PROMOTED OR REASSIGNED IN THE BUREAU, UNDER THE INDIAN PREFERENCE ACT HE WOULD RECEIVE AN EXCEPTED APPOINTMENT.

MR. CASWELL QUESTIONS WHETHER MR. THREE STARS' STATUS UNDER THE INDIAN PREFERENCE ACT, WHICH WOULD PERMIT HIM TO RECEIVE AN EXCEPTED APPOINTMENT, WOULD PERMIT PAYMENT OF TRAVEL EXPENSES FOR THE PURPOSE OF INTERVIEWING FOR A POSITION WHICH IS ORDINARILY IN THE COMPETITIVE SERVICE.

THE DECISION CITED BY MR. CASWELL, 54 COMP.GEN. 554, SUPRA IS NOT FOR APPLICATION HERE AS THAT DECISION INVOLVED PROSPECTIVE EMPLOYEES, WHILE THE INSTANT CASE INVOLVES A GOVERNMENT EMPLOYEE. THE RULE FOR APPLICATION TO GOVERNMENT EMPLOYEES PERMITS TRAVEL EXPENSES FOR INTERVIEW PURPOSES WHERE THE POSITION IS AN EXCEPTED POSITION OR WHERE THE POSITION IS ONE IN THE COMPETITIVE SERVICE FOR WHICH ADDITIONAL QUALIFICATIONS ARE IMPOSED BY THE ADMINISTRATIVE AGENCY, THUS REQUIRING A PRE-EMPLOYMENT INTERVIEW TO DETERMINE WHETHER THE INDIVIDUAL QUALIFIED. 34 COMP.GEN. 435 (1955).

THUS, IN THE INSTANT CASE, THE CLAIMED EXPENSES MAY BE ALLOWED IF THERE WERE ADDITIONAL ADMINISTRATIVE QUALIFICATIONS IMPOSED BY THE ADMINISTRATIVE AGENCY OR IF THE POSITION FOR WHICH MR. THREE STARS APPLIED WAS AN EXCEPTED POSITION.

WE HAVE BEEN ADVISED THAT FOR CERTAIN KEY POSITIONS IN THE BUREAU OF INDIAN AFFAIRS FIELD SERVICE, INCLUDING SCHOOL SUPERINTENDENTS, GS 13/14/15, THERE EXISTS ADDITIONAL ADMINISTRATIVE QUALIFICATIONS OTHER THAN THOSE IMPOSED BY THE CIVIL SERVICE COMMISSION. IN A SEPTEMBER 20, 1976, LETTER, THE BUREAU ADVISED THIS OFFICE THAT:

"CONSULTATION WITH THE TRIBAL GOVERNING BODIES CONCERNING APPOINTMENTS TO THE KEY POSITIONS AT THE RESERVATION AND BOARDING SCHOOL LEVEL IS A VERY NECESSARY STEP IN THE PROCESS OF SELF DETERMINATION. IN ORDER TO MAKE CONSULTATION MEANINGFUL, IT IS OFTEN NECESSARY TO HOLD PERSONAL INTERVIEWS WITH THE CANDIDATES FOR THE KEY POSITIONS."

WE UNDERSTAND THAT MR. THREE STARS WAS AUTHORIZED TRAVEL FOR THE PURPOSE OF AN INTERVIEW PURSUANT TO THIS POLICY.

ACCORDINGLY, WE WOULD NOT OBJECT TO PAYMENT OF THE TRAVEL EXPENSES IN QUESTION, IF OTHERWISE PROPER, ON THE BASIS THAT SUCH TRAVEL WAS NECESSITATED BY ADMINISTRATIVE QUALIFICATIONS IMPOSED BY THE BUREAU.

NOTWITHSTANDING THE ABOVE, THIS OFFICE IS OF THE OPINION THAT THE FACT THAT QUALIFIED INDIANS MAY RECEIVE EXCEPTED APPOINTMENTS IS NOT ALONE DETERMINATIVE OF ENTITLEMENT TO PRE-EMPLOYMENT INTERVIEW TRAVEL EXPENSES. THE BASIS OF THE EXCEPTION PERMITTING PAYMENT OF TRAVEL EXPENSES FOR PRE- EMPLOYMENT INTERVIEWS IS THAT WHERE THE RESPONSIBILITY FOR DETERMINING QUALIFICATIONS OF APPLICANTS FOR EXCEPTED POSITIONS SUBJECT TO THE CLASSIFICATION ACT IS VESTED IN THE DEPARTMENTS AND AGENCIES, THE PAYMENT BY THEM OF ANY NECESSARY EXPENSES INCIDENT TO THE DETERMINATION OF QUALIFICATIONS IS PROPER. 38 COMP.GEN. 483, (1959.).

THE BASIS FOR THE SUBJECT EXCEPTED POSITIONS IN THE BUREAU ORIGINATES IN 25 U.S.C. 472 (1970). THAT SECTION PROVIDES:

"THE SECRETARY OF THE INTERIOR IS DIRECTED TO ESTABLISH STANDARDS OF HEALTH, AGE, CHARACTER, EXPERIENCE, KNOWLEDGE, AND ABILITY FOR INDIANS WHO MAY BE APPOINTED, WITHOUT REGARD TO CIVIL-SERVICE LAWS, TO THE VARIOUS POSITIONS MAINTAINED, NOW OR HEREAFTER, BY THE INDIAN OFFICE, IN THE ADMINISTRATION OF FUNCTIONS OR SERVICES AFFECTING ANY INDIAN TRIBE. SUCH QUALIFIED INDIANS SHALL HEREAFTER HAVE THE PREFERENCE TO APPOINTMENT TO VACANCIES IN ANY SUCH POSITIONS."

CIVIL SERVICE COMMISSION REGULATIONS PROVIDING FOR EXCEPTED APPOINTMENTS PURSUANT TO THAT PROVISION, IN EFFECT AT THE TIME, ARE CONTAINED IN 5 C.F.R. 213.3112(A)(7) (1975), AND ARE QUOTED BELOW:

"ALL POSITIONS IN THE BUREAU OF INDIAN AFFAIRS AND OTHER POSITIONS IN THE DEPARTMENT OF THE INTERIOR DIRECTLY AND PRIMARILY RELATED TO THE PROVIDING OF SERVICES TO INDIANS WHEN FILLED BY THE APPOINTMENT OF INDIANS WHO ARE ONE-FOURTH OR MORE INDIAN BLOOD."

THE QUALIFICATIONS WHICH DETERMINES ELIGIBILITY FOR AN EXCEPTED APPOINTMENT UNDER THAT PROVISION IS WHETHER THE APPLICANT IS AN INDIAN OF ONE-FOURTH OR MORE INDIAN BLOOD. MR. THREE STARS WAS SUCH A QUALIFIED APPLICANT. HOWEVER, THE RECORD INDICATES THAT AT THE TIME THAT THE SUBJECT TRAVEL WAS PERFORMED, HE WAS AN EXCEPTED APPOINTEE AND THAT A DETERMINATION HAD ALREADY BEEN MADE CONCERNING HIS ELIGIBILITY UNDER 5 C.F.R. 213.3112(A)(7). ACCORDINGLY, SINCE THE DETERMINATION WITH REGARD TO THE QUALIFICATION OF MR. THREE STARS FOR AN EXCEPTED APPOINTMENT HAD BEEN MADE, AND SINCE THE POSITION BEING APPLIED FOR WAS A POSITION IN THE COMPETITIVE SERVICE, BUT FOR THE PREFERENCE GRANTED TO QUALIFIED INDIANS, THE NEED FOR ANY AGENCY DETERMINATION PURSUANT TO 5 C.F.R. 213.3112(A)(7) WAS UNNECESSARY. ACCORDINGLY, WE BELIEVE THAT CASES PROVIDING FACTS SIMILAR TO THIS CASE DO NOT WARRANT AUTHORIZATION OF TRAVEL EXPENSES FOR A PRE-EMPLOYMENT INTERVIEW SOLELY ON THE BASIS OF A QUALIFIED INDIAN'S ELIGIBILITY FOR AN EXCEPTED APPOINTMENT TO A POSITION IN THE COMPETITIVE SERVICE.

THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IN ACCORDANCE WITH THE FOREGOING, IF OTHERWISE PROPER.