B-204021, APRIL 16, 1982, 61 COMP.GEN. 357

B-204021, APRIL 16, 1982, 61 COMP.GEN. 357

ATTORNEYS - FEES - BAR ADMISSION FEES - REIMBURSEMENT - INCUMBENT APPEALS OFFICERS - MERIT SYSTEMS PROTECTION BOARD PURSUANT TO A PROGRAM TO ASSIST APPEALS OFFICERS MEET A NEW REQUIREMENT THAT THEY BE BAR-ADMITTED ATTORNEYS, THE MERIT SYSTEMS PROTECTION BOARD (THE BOARD) SEEKS TO REIMBURSE THEM FOR THEIR INITIAL BAR ADMISSION FEES. THESE FEES ARE PERSONAL OBLIGATIONS OF ATTORNEYS. THEY ARE NOT REIMBURSABLE, EVEN THOUGH THE REQUIREMENT WAS LATER IMPOSED ON INCUMBENT EMPLOYEES AND THE BOARD SUPPORTS THE REIMBURSEMENT AS PART OF AN EFFORT TO AVOID LOSING THESE EMPLOYEES BY A REDUCTION-IN FORCE. B-187525, OCT. 15, 1976, IS DISTINGUISHED. ATTORNEYS - FEES - BAR REVIEW - REIMBURSEMENT - GOVERNMENT EMPLOYEES LAW SCHOOL TUITION AND BAR REVIEW COURSE TUITION ARE SIMILARLY NECESSARY EXPENSES INCURRED IN ORDER TO QUALIFY FOR A LEGAL POSITION. THEREFORE THEY, LIKE BAR ADMISSION FEES, ARE PERSONAL TO THE EMPLOYEES AND ARE NOT PAYABLE FROM APPROPRIATED FUNDS. THE BOARD SHOULD MAKE NO FURTHER PAYMENTS UNDER ITS BAR ASSISTANCE PROGRAM AND SHOULD RECOVER TUITION AND FEES ALREADY PAID TO ITS EMPLOYEES UNLESS WAIVER IS GRANTED PURSUANT TO 5 U.S.C. 5584.

MATTER OF: USE OF AGENCY FUNDS FOR BAR MEMBERSHIP EXPENSES, APRIL 16, 1982:

MS. EVANGELINE W. SWIFT, GENERAL COUNSEL OF THE MERIT SYSTEMS PROTECTION BOARD (BOARD), HAS REQUESTED OUR VIEWS ON WHETHER THE CHAIRPERSON OF THE BOARD (CHAIRPERSON) MAY PROPERLY AUTHORIZE THE EXPENDITURE OF BOARD FUNDS FOR CERTAIN ONE-TIME BAR MEMBERSHIP FEES FOR INCUMBENT APPEALS OFFICERS WHO, AS A RESULT OF A RECENT BOARD ACTION, ARE NOW REQUIRED TO BE BAR- ADMITTED ATTORNEYS. THE GENERAL COUNSEL MENTIONS IN PASSING THAT THE BOARD HAS ALREADY ADOPTED A POLICY TO REIMBURSE INCUMBENT OFFICERS FOR LAW SCHOOL TUITION, UP TO $1,000 FOR EACH FISCAL YEAR, AND FOR THE COSTS OF THEIR BAR REVIEW COURSES PRIOR TO SITTING FOR A BAR EXAMINATION. ALTHOUGH SHE ASKS SPECIFICALLY ONLY ABOUT THE PROPRIETY OF BAR MEMBERSHIP FEES, WE CONCLUDE THAT ALL THREE TYPES OF EXPENDITURES FROM BOARD FUNDS ARE UNAUTHORIZED.

THE MERIT SYSTEMS PROTECTION BOARD WAS ESTABLISHED BY THE PRESIDENT'S REORGANIZATION PLAN NO. 2 OF 1978, IN IMPLEMENTATION OF THE CIVIL SERVICE REFORM ACT OF 1978 (CSRA) (PUB. L. 95-454, 5 U.S.C. 1101 NOTES). A MAJOR STATUTORY FUNCTION OF THE BOARD, AS WAS TRUE ALSO OF ITS PREDECESSOR AGENCY, THE CIVIL SERVICE COMMISSION, IS TO PROVIDE A FORUM FOR THE ADJUDICATION OF CERTAIN APPEALABLE PERSONNEL ACTIONS WITHIN THE FEDERAL SERVICE. PRIOR TO THE REORGANIZATION, THE COMMISSION UTILIZED GS-930 APPEALS OFFICERS TO CONDUCT MANY OF THE APPEALS HEARINGS AND THESE EMPLOYEES BECAME BOARD EMPLOYEES BY A MASS TRANSFER ACTION AFTER THE REORGANIZATION.

THE GS-930 SERIES DOES NOT REQUIRE BAR MEMBERSHIP, AND MANY OF THE TRANSFERRED APPEALS OFFICERS WERE NOT LAW SCHOOL GRADUATES, OR, IF THEY WERE, HAD NOT YET PASSED A BAR EXAMINATION. A SPOKESMAN FOR THE GENERAL COUNSEL EXPLAINED, INFORMALLY, THAT SOME CRITICISMS HAD BEEN LEVELED AT THE LACK OF PROFESSIONAL EXPERTISE WITH WHICH HEARINGS HAD PREVIOUSLY BEEN CONDUCTED, DURING THE COURSE OF HEARINGS ON THE BILLS WHICH BECAME THE CSRA.

TO MEET THESE CRITICISMS, ON NOVEMBER 21, 1979, THE BOARD ESTABLISHED A NEW REQUIREMENT THAT ALL APPEALS OFFICERS MUST HENCEFORTH BE BAR ADMITTED ATTORNEYS. THEIR POSITIONS WERE RECLASSIFIED TO THE GS 905 (ATTORNEY- ADVISOR) EXCEPTED SERVICE SERIES. A REDUCTION IN FORCE WAS INSTITUTED AND THE OLD GS-930 SERIES WAS PHASED OUT. INCUMBENTS WERE RELIEVED OF THEIR DUTIES AS APPEALS OFFICERS AND FOR THE MOST PART, ASSISTED TO FIND OTHER POSITIONS WITHIN OR OUTSIDE THE AGENCY. THE BOARD THEN UNDERTOOK THE ABOVE DESCRIBED PROGRAM OF FINANCIAL ASSISTANCE FOR THOSE INCUMBENT EMPLOYEES WHO WERE INTERESTED IN QUALIFYING FOR THE NEW GS-905 POSITIONS BY BECOMING ATTORNEYS. APPROXIMATELY 10 EMPLOYEES TOOK ADVANTAGE OF THE OFFER. WE UNDERSTAND THAT APPROXIMATELY $13,000 HAS BEEN EXPENDED TO DATE UNDER THE PROGRAM, AND AT LEAST TWO EMPLOYEES ARE STILL ATTENDING LAW SCHOOL.

INITIAL BAR MEMBERSHIP FEES

AS THE GENERAL COUNSEL RECOGNIZED IN HER LETTER, IN PRIOR DECISIONS WE HAVE RULED THAT BAR MEMBERSHIP FEES ARE PERSONAL OBLIGATIONS OF ATTORNEYS AND, THEREFORE, NOT REIMBURSABLE. SEE, E.G., B-187525, OCTOBER 15, 1976; 22 COMP.GEN. 460 (1942). HOWEVER, THE GENERAL COUNSEL SEEKS TO DISTINGUISH THE PRESENT SITUATION FROM THE FACTS IN THOSE CASES, THUS WARRANTING A DIFFERENT CONCLUSION. THE GENERAL COUNSEL POINTS OUT THAT HERE BAR ADMISSION WAS ESTABLISHED AS A CONDITION OF EMPLOYMENT FOR APPEALS OFFICERS SUBSEQUENT TO THE FILLING OF THESE POSITIONS WITH NON-BAR MEMBER EMPLOYEES. THE BOARD WISHES TO PAY THESE COSTS IN ORDER TO ALLOW THESE EMPLOYEES TO REGAIN THEIR POSITIONS AS APPEALS OFFICERS. ALSO, THE GENERAL COUNSEL ARGUES, THE BOARD ITSELF IS SEEKING TO MAKE THESE REIMBURSEMENTS, A FACTOR SHE STATED IS MISSING IN OUR PREVIOUS CASES.

WE RECOGNIZE THAT THIS IS A DIFFICULT SITUATION, BUT WE DO NOT SEE ANY MEANINGFUL BASIS ON WHICH TO DISTINGUISH IT FROM THE OTHERS DISCUSSED IN OUR CASES. WE HAVE LONG HELD THAT EACH EMPLOYEE MUST BEAR THE COSTS OF QUALIFYING HIM/HERSELF FOR THE PERFORMANCE OF HIS/HER OFFICIAL DUTIES AND THAT IF A PERSONAL LICENSE IS NECESSARY, THE EMPLOYEE MUST PROCURE IT. 22 COMP.GEN. 460 (1942). AS WE NOTED IN A LATER CASE, " * * * THE PRIVILEGE TO PRACTICE BEFORE A PARTICULAR COURT IS PERSONAL TO THE INDIVIDUAL AND IS HIS FOR LIFE UNLESS DISBARRED REGARDLESS OF WHETHER HE REMAINS IN THE GOVERNMENT SERVICE. * * * " 47 COMP.GEN. 116 (1967) AFFIRMED B-161952, JUNE 12, 1978. SEE ALSO 55 COMP.GEN. 759 (1961). THIS RULE HAS BEEN CONSISTENTLY ENFORCED, EVEN IN CASES INVOLVING OTHER PROFESSIONS AND EVEN WHEN THE AGENCY STRONGLY FAVORS USING ITS APPROPRIATIONS FOR THIS PURPOSE, 46 COMP.GEN. 695 (1967).

THE BOARD FURTHER ARGUES THAT PAYMENT OF THIS ONE-TIME BAR ADMISSION FEE WILL PROMOTE THE RETENTION OF CURRENT APPEALS OFFICERS WHO, THOUGH TEMPORARILY DETAILED TO OTHER POSITIONS, WILL BE SUBJECT TO REDUCTION IN- FORCE PROCEDURES IF THEY DO NOT MEET THE POSITION'S NEW QUALIFICATIONS. WE DO NOT QUESTION THE FACT THAT THE BOARD MIGHT BENEFIT FROM THE ADMISSION OF PRESENTLY EMPLOYEED APPEALS OFFICERS TO THE BAR SO THAT THEY COULD BE RETAINED. HOWEVER, IT IS UP TO THE EMPLOYEES TO QUALIFY THEMSELVES. WHILE AN IMPENDING REDUCTION-IN-FORCE MAKES IT A SOMEWHAT HARSHER RESULT, THE DESIRE OF THE AGENCY TO PROTECT ITS EMPLOYEES' STATUS IS NOT SUFFICIENT TO GIVE IT THE DISCRETION TO MAKE PAYMENTS NOT OTHERWISE AUTHORIZED.

LAW SCHOOL TUITIONS AND BAR REVIEW COURSES

THE BOARD ASSUMED THAT THE OTHER TWO ELEMENTS OF ITS PROGRAM-- PAYMENT OF LAW SCHOOL TUITION AND OF BAR REVIEW COURSE FEES-- WERE AUTHORIZED AND DID NOT ASK US CONCERNING THEM. FOR THE REASONS DISCUSSED BELOW, HOWEVER, WE FEEL THAT THESE ELEMENTS ARE ALSO NOT AUTHORIZED.

AS TO THE LAW SCHOOL TUITION, 5 U.S.C. 4107(C)(1) SPECIFICALLY STATES THAT THE GOVERNMENT EMPLOYEES TRAINING ACT DOES NOT AUTHORIZE REIMBURSEMENT OF THE COSTS OF TRAINING BY A NON-GOVERNMENT FACILITY FOR "THE PURPOSE OF PROVIDING AN OPPORTUNITY TO AN EMPLOYEE TO OBTAIN AN ACADEMIC DEGREE IN ORDER TO QUALIFY FOR APPOINTMENT TO A PARTICULAR POSITION FOR WHICH THE ACADEMIC DEGREE IS A BASIC REQUIREMENT." THIS WOULD PROHIBIT REIMBURSEMENT OF ANY PART OF THE INCUMBENT EMPLOYEES' LAW SCHOOL TUITION, SINCE THE PURPOSE IS TO PROVIDE THEM WITH AN OPPORTUNITY TO OBTAIN AN ACADEMIC DEGREE IN ORDER TO QUALIFY FOR THE NEWLY ESTABLISHED POSITION OF HEARING OFFICERS IN THE GS-905 SERIES.

PAYMENT OF THE COSTS FOR BAR REVIEW COURSES IN THESE CIRCUMSTANCES RAISES THE SAME LEGAL PROBLEM THAT IS RAISED BY AGENCY PAYMENT OF BAR ADMISSION FEES AND LAW SCHOOL TUITION. THESE ARE EXPENSES WHICH ENABLE OR ASSIST THE INDIVIDUAL TO QUALIFY FOR A POSITION AND THEREFORE ARE PERSONAL TO THE EMPLOYEE. PERSONAL, AND NOT APPROPRIATED, FUNDS SHOULD BE USED TO PAY THESE EXPENSES. WE MADE ONE NARROW EXCEPTION IN B-187525, OCTOBER 15, 1976, WHEN WE AUTHORIZED THE PAYMENT OF THE COST OF ATTENDING A BAR REVIEW COURSE, THOUGH NOT THE COST OF INITIAL BAR MEMBERSHIP, FOR AN EMPLOYEE WHO WAS ALREADY ADMITTED TO THE BAR IN ANOTHER STATE WHICH QUALIFIED HIM FOR HIS FEDERAL EMPLOYMENT AS A REGIONAL ATTORNEY. BECAUSE OF A NEW STATE COURT RULING, HE NEEDED TO BE ADMITTED IN THE STATE OF CALIFORNIA IN ORDER TO PERFORM HIS FEDERAL DUTIES. IN THAT CASE, HOWEVER, THE ATTORNEY HAD ALREADY QUALIFIED FOR THE FEDERAL POSITION IN WHICH HE WAS SERVING AND THE AGENCY HAD NEITHER CHANGED THE REQUIREMENTS NOR RECLASSIFIED THE POSITION IN ANY RESPECT. THE ADDITIONAL BAR MEMBERSHIP REQUIREMENT WAS IMPOSED BY THE STATE AND NOT THE FEDERAL GOVERNMENT. WE ARE THEREFORE UNABLE TO APPLY THE EXCEPTION TO THE EMPLOYEES IN THIS CASE.

ACCORDINGLY, THE BOARD MAY NOT PAY THE LAW SCHOOL TUITION, THE BAR REVIEW COURSE TUITION, AND/OR THE BAR ADMISSION FEES OF ITS FORMER APPEALS OFFICERS IN ORDER TO HELP THEM MEET THE NEW REQUIREMENT THAT APPEALS OFFICERS BE BAR-ADMITTED ATTORNEYS. NO FURTHER PAYMENTS SHOULD BE MADE UNDER THE PROGRAM. PAYMENTS WHICH HAVE ALREADY BEEN MADE SHOULD BE RECOVERED FROM THE EMPLOYEES TO WHOM OR ON WHOSE BEHALF THEY WERE MADE. HOWEVER, WE CALL MSPB ATTENTION TO THE PROVISIONS OF 5 U.S.C. 5584 UNDER WHICH THE COMPTROLLER GENERAL MAY CONSIDER WAIVER OF GOVERNMENT CLAIMS AGAINST EMPLOYEES FOR OVERPAYMENT OF PAY AND CERTAIN ALLOWANCES WHEN COLLECTION OF THE DEBT "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES." SEE ALSO THE IMPLEMENTING REGULATIONS AT 4 C.F.R., PART 91.