B-227236, Jul 2, 1987, Office of General Counsel
Highlights
We advised the interested congressman that we find no basis for questioning the FAA's determination that the employee is entitled to receive PCS expenses because his transfer would be in the interest of the government. The employee cannot waive the receipt of those expenses because an employee generally may not waive salary or benefits to which he is legally entitled. Since federal agencies have discretion in their hiring procedures. We have no authority to question the FAA's decision not to hire the employee. Brennan: This is in response to your letter requesting advice concerning Mr. The FAA further states that since it does not have funds to pay for Mr. That he may not waive these expenses because he is legally entitled to receive them.
B-227236, Jul 2, 1987, Office of General Counsel
CIVILIAN PERSONNEL - Compensation - Employment offers - Revocation - Administrative discretion DIGEST: The Federal Aviation Administration (FAA) selected and cleared a current federal employee for the position of air traffic controller under a merit promotion program but did not hire him because of a lack of funds to pay relocation expenses. We advised the interested congressman that we find no basis for questioning the FAA's determination that the employee is entitled to receive PCS expenses because his transfer would be in the interest of the government; furthermore, the employee cannot waive the receipt of those expenses because an employee generally may not waive salary or benefits to which he is legally entitled. Since federal agencies have discretion in their hiring procedures, we have no authority to question the FAA's decision not to hire the employee.
The Honorable Joseph E. Brennan:
This is in response to your letter requesting advice concerning Mr. Brian K. Tapley, a current federal employee who wishes to transfer to the position of air traffic controller with the New England Region of the Federal Aviation Administration (FAA). The FAA selected and cleared Mr. Tapley for employment under a merit promotion program but has not hired him because of a lack of funds to pay his relation expenses.
The FAA's letter to you of April 14, 1987, states that it has determined that Mr. Tapley's transfer would be in the best interest of the government and, therefore, that he would be entitled to relocation expenses. The FAA further states that since it does not have funds to pay for Mr. Tapley's relocation expenses, it cannot hire him at the present time, but that he may not waive these expenses because he is legally entitled to receive them. The FAA cited two of our decisions in its letter to you, Eugene R. Platt, 59 Comp.Gen. 699 (1980), and David C. Goodyear, 56 Comp.Gen. 709 (1977). You asked that we review the legal basis for the FAA's determination.
We find no basis for questioning the FAA's determination that Mr. Tapley would be entitled to relocation expenses. In Eugene R. Platt-- Reconsideration, 61 Comp.Gen. 156 (1981), we clarified our earlier decision in Platt by holding that, in the absence of any applicable agency regulations, where an employee transfers under a merit promotion program the transfer is assumed to be in the interest of the government and as such the employee is legally entitled to receive relocation expenses. know of no FAA regulations that would counter this assumption. Furthermore, in David C. Goodyear 56 Comp.Gen. 709 (1977), we held that "budget constraints" cannot form the basis for denying an employee relocation expenses if his transfer has been found to be in the government's interest.
Although we are aware of no decisions specifically holding that an employee may not waive relocation expenses, we have generally held that an employee may not waive salary or benefits to which he is legally entitled. For instance, our Office has consistently held that it is contrary to public policy for an appointee to a position in the federal government to waive his ordinary right to compensation or to accept something less when the salary for his position is fixed by or pursuant to legislative authority. See 54 Comp.Gen. 393 (1974); 26 Comp.Gen. 956 (1947). See also United States v. Jones, 100 F.2d 65 (8th Cir. 1938). Similarly, we have held that a retired member of the armed services may not waive his right to military retired pay to which he is legally entitled. See 28 Comp.Gen. 675 (1949); Master Sergeant Walter E. Nolan, USAF, Retired, B-196839, April 24, 1980. We believe that these decisions are analogous to Mr. Tapley's situation and preclude his waiver of relocation expense entitlements.
In the absence of authority for Mr. Tapley to waive his legal entitlement to relocation expenses, we know of no basis for assisting him in obtaining employment with the FAA. We have no authority to question the FAA's decision not to hire Mr. Tapley because the courts have consistently held that federal agencies have discretion in determining most matters concerning the terms and conditions of federal employment. See Craig v. Colburn, 570 F.2d 916 (10th Cir. 1978).
We are enclosing copies of the above-cited decisions. We trust that this information will enable you to respond to your constituent.