B-205453, AUG 3, 1982

B-205453, AUG 3, 1982

DIGEST: AN EMPLOYEE OF THE PANAMA CANAL COMMISSION MAY NOT BE PAID THE COST OF ROUND-TRIP TRAVEL TO THE UNITED STATES UNDER THE HOME LEAVE TRAVEL AUTHORITY OF 5 U.S.C. SEC. 5728 WHEN THE TRAVEL WAS PERFORMED BY THE EMPLOYEE WITHOUT AUTHORITY AND WITHOUT PRIOR EXECUTION OF AN EMPLOYMENT AGREEMENT. FAILURE TO EXECUTE AN AGREEMENT PRIOR TO HOME LEAVE TRAVEL WILL NOT PREVENT PAYMENT OF HOME LEAVE TRAVEL COSTS IF SUCH FAILURE IS INADVERTENT. HOWEVER, THE EMPLOYEE MAY NOT BE PAID FOR SUCH TRAVEL WHEN NO ERROR WAS INVOLVED BECAUSE AT THE TIME TRAVEL WAS PERFORMED THE EMPLOYEE DID NOT INTEND TO TAKE HOME LEAVE.

ROBERT D. KONNAGAN:

MR. ROBERT D. KONNAGAN HAS CLAIMED REIMBURSEMENT FOR HOME LEAVE TRAVEL EXPENSES INCURRED IN 1977 WHILE HE WAS AN EMPLOYEE OF THE PANAMA CANAL COMPANY/CANAL ZONE GOVERNMENT, THE FUNCTIONS OF WHICH HAVE BEEN TRANSFERRED TO THE PANAMA CANAL COMMISSION. WE HAVE DETERMINED THAT HE IS NOT ENTITLED TO REIMBURSEMENT BECAUSE HE DID NOT TRAVEL TO THE UNITED STATES WITH THE INTENTION OF TAKING HOME LEAVE.

MR. KONNAGAN'S CLAIM WAS THE SUBJECT OF SETTLEMENT NUMBER Z-2820326 ISSUED BY OUR CLAIMS GROUP ON MARCH 28, 1980. IN THAT SETTLEMENT THE PANAMA CANAL COMMISSION WAS ADVISED THAT ALTHOUGH MR. KONNAGAN DID NOT EXECUTE A NEW EMPLOYMENT AGREEMENT FOR OVERSEAS SERVICE PRIOR TO DEPARTING HIS POST OF DUTY, IT APPEARED THAT HE COULD BE REIMBURSED THE CLAIMED HOME LEAVE TRAVEL EXPENSES UNDER THE RULES IN COMPTROLLER GENERAL'S DECISIONS B-130258, FEBRUARY 14, 1957, AND MATTER OF GROFF, B-186213, AUGUST 3, 1976. THOSE DECISIONS HELD THAT AN EMPLOYEE MAY BE REIMBURSED FOR THE EXPENSES OF HOME LEAVE TRAVEL PERFORMED PRIOR TO EXECUTING A WRITTEN RENEWAL AGREEMENT IF SUCH AGREEMENT IS LATER SIGNED OR IF THE EMPLOYEE HAS SERVED AT THE OVERSEAS POST FOR THE PERIOD WHICH WOULD HAVE BEEN REQUIRED IN AN AGREEMENT. IT WAS REASONED THAT SINCE THE PURPOSE OF REQUIRING AN AGREEMENT IS THE PROTECTION OF THE GOVERNMENT'S INTERESTS AN INADVERTENT FAILURE TO SIGN AN AGREEMENT WILL NOT PREVENT THE GOVERNMENT FROM PAYING FOR HOME LEAVE TRAVEL. THE SETTLEMENT, HOWEVER, DID NOT DIRECT THE AGENCY TO PAY BECAUSE A FULL ADMINISTRATIVE REPORT ON THE CASE AND A COMPLETE STATEMENT OF THE FACTS INVOLVED HAD NOT BEEN FURNISHED.

THE COMMISSION WAS ADVISED TO RETURN THE CASE IF THERE WERE ANY DOUBTS REGARDING PAYMENT UNDER THE RULES STATED IN THE CITED DECISIONS. THE COMMISSION BY LETTER OF SEPTEMBER 29, 1981, QUESTIONED WHETHER A DETERMINATION THAT THE PURPOSE OF THE AGREEMENT WAS SATISFIED COULD BE MADE SINCE THERE WAS EVIDENCE SUGGESTING THAT THE EMPLOYEE'S FAILURE TO SIGN THE AGREEMENT PRIOR TO HIS TRAVEL ADVERSELY AFFECTED THE GOVERNMENT'S INTERESTS.

THE PURPOSE OF THE TOUR RENEWAL AGREEMENT REQUIRED IN 5 U.S.C. SEC. 5728 IS NOT SIMPLY TO ASSURE THE GOVERNMENT OF THE SERVICES OF AN EMPLOYEE FOR 2 YEARS. RATHER, THE REQUIREMENT SERVES TO PROTECT THE GOVERNMENT'S FINANCIAL INTERESTS BY MEMORIALIZING ITS AGREEMENT TO PAY THE COST OF HOME LEAVE TRAVEL FOR THE EMPLOYEE AND HIS OR HER IMMEDIATE FAMILY, IN CONSIDERATION FOR THE EMPLOYEE'S AGREEMENT TO SERVE ANOTHER TOUR OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES. B-131459, MAY 6, 1957, AND MATTER OF GROFF, CITED ABOVE. THE EMPLOYEE'S EXECUTION OF A TOUR RENEWAL AGREEMENT DOES NOT NECESSARILY ASSURE THE GOVERNMENT OF HIS SERVICES FOR 2 YEARS, BUT IT ASSURES THE PROTECTION OF THE FINANCIAL INTERESTS OF THE GOVERNMENT. SEE FEDERAL TRAVEL REGULATIONS, PARAGRAPH 2-1.5H(1)(B) AND PARAGRAPHS 2-1.5H(4)(A) AND B). ALSO THE EXECUTION OF AN AGREEMENT TOGETHER WITH THE ISSUANCE OF TRAVEL ORDERS INDICATES THAT TRAVEL FOR THAT PURPOSE HAS BEEN APPROVED.

ALTHOUGH WE HAVE AUTHORIZED PAYMENT FOR HOME LEAVE TRAVEL WHEN THE EMPLOYEE'S FAILURE TO SIGN A TOUR RENEWAL AGREEMENT PRIOR TO TRAVEL WAS DUE TO ADMINISTRATIVE OVERSIGHT, THIS WAS NOT THE SITUATION IN MR. KONNAGAN'S CASE. MR. KONNAGAN DID NOT ASK TO BE GIVEN HOME LEAVE TRAVEL AT GOVERNMENT EXPENSE AND DID NOT OFFER TO EXECUTE A SERVICE AGREEMENT. IT WAS HIS DECISION NOT TO EXECUTE AN AGREEMENT PRIOR TO TRAVEL TO THE UNITED STATES AND THERE WAS NO ELEMENT OF ADMINISTRATIVE OVERSIGHT IN THE FACT THAT HE DID NOT TRAVEL UNDER HOME LEAVE ORDERS OR EXECUTE A SERVICE AGREEMENT. THE CITED DECISIONS WILL NOT SUPPORT A HOLDING THAT AN EMPLOYEE MAY RETURN TO THE UNITED STATES AT ANY TIME AND, AFTER PERFORMING THE TRAVEL, REQUIRE HIS EMPLOYING AGENCY TO PAY HIS TRAVEL COST UNDER 5 U.S.C. SEC. 5728.

IN VIEW OF THE POSITION OF THE PANAMA CANAL COMMISSION THAT THEY WILL NOT RETROACTIVELY APPROVE HOME LEAVE TRAVEL IN THE CIRCUMSTANCES OF THIS CASE, MR. KONNAGAN IS NOT ENTITLED TO REIMBURSEMENT FOR THE TRAVEL HE PERFORMED FROM PANAMA TO THE UNITED STATES AND RETURN IN 1977.