B-238381, Mar 29, 1991, 70 Comp.Gen. 378

B-238381: Mar 29, 1991

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CIVILIAN PERSONNEL - Relocation - Executive exchange programs CIVILIAN PERSONNEL - Travel - Executive exchange programs CIVILIAN PERSONNEL - Travel - Temporary duty - Determination A federal employee who participates in the Executive Exchange Program is entitled either to relocation expenses or to travel expenses since the program is in the interest of the government and the participant remains an employee of his agency during the exchange period. Executive Exchange Program - Relocation Expenses or Travel Expenses - Agency Discretion: This decision is in response to a request from the Comptroller. Small Business Administration (SBA). /1/ The question asked is whether an agency is required to grant an employee.

B-238381, Mar 29, 1991, 70 Comp.Gen. 378

CIVILIAN PERSONNEL - Relocation - Executive exchange programs CIVILIAN PERSONNEL - Travel - Executive exchange programs CIVILIAN PERSONNEL - Travel - Temporary duty - Determination A federal employee who participates in the Executive Exchange Program is entitled either to relocation expenses or to travel expenses since the program is in the interest of the government and the participant remains an employee of his agency during the exchange period. However, the agency retains the discretionary authority to determine whether the employee's placement at the private sector location shall be as a permanent change of station or as a temporary duty assignment. 54 Comp.Gen. 87 (1974), modified.

Executive Exchange Program - Relocation Expenses or Travel Expenses - Agency Discretion:

This decision is in response to a request from the Comptroller, Small Business Administration (SBA). /1/ The question asked is whether an agency is required to grant an employee, who is selected to participate in the Executive Exchange Program with travel to another location, full permanent duty station relocation benefits or whether the agency may choose to offer the employee temporary duty per diem. For the following reasons we conclude that the agency has the discretionary authority to choose either method of reimbursing the employee.

BACKGROUND

The Executive Exchange Program was initially established as the Executive Interchange Program under Executive Order No. 11,451, Jan. 19, 1969. That order designated a commission to develop a program under which executives from government and private industry would be exchanged to permit an interchange of ideas and methods, which would enhance the participants' effectiveness in their respective spheres of activity. Currently the interchange period is for approximately 1 year, during which time the participants are assigned positions of significant responsibility in the other's sector and engage in periodic training to further intensify the learning experience. Although that Executive Order was superseded by Executive Order No. 12,136, May 15, 1979, which in turn was amended on May 21, 1985, by Executive Order No. 12,516, neither of these later Executive Orders made any substantive changes and the above program description remains the same.

In a series of decisions beginning in 1974, /2/ we held that federal employees who are selected to participate in the program are entitled to receive the same relocation allowances authorized employees transferred in the interest of the government from one duty station to another for permanent duty. /3/ In July 1981, /4/we clarified our 1974 decision to permit agencies to pay per diem or commuting expenses in lieu of relocation expenses to accommodate certain employees who did not wish to transfer. Later in 1981, /5/ we gave this decision retroactive effect. We also characterized the decision as concluding that agencies may authorize relocation expenses or travel expenses not to exceed relocation expenses "... whichever is determined more appropriate by the employing Federal agency."

The SBA views the 1981 decisions as granting federal agencies the discretionary authority to choose the method by which participants will be placed at the exchange location, even if it is contrary to the participants' wishes. However, if those decisions were not meant to recognize such broad discretionary power in the agency, the SBA urges that we do so now. The reason given is that, since the cost of relocation is so great in comparison to temporary duty reimbursements, budget constraints will force the agency to deny employees the opportunity to participate in the program if the agency is required to pay full relocation expenses. The SBA gives us the example of a Washington, D.C., area employee whose full per diem for 1 year in St. Louis would be a maximum of $34,000, but whose relocation benefits would exceed $100,000. The SBA states that it cannot afford to spend over $100,000 for one employee to participate in the program. Its only alternative to such high costs would be to deny employees the opportunity to participate. The SBA, therefore, urges us to allow agencies to choose to offer the employee per diem or to limit relocation expenses to travel, per diem en route, and shipping and storage of household goods.

OPINION

Whether an employee's assignment to a particular station is temporary or permanent is a question of fact to be determined on the basis of the circumstances of each case. We have long recognized that the nature and duration of the assignment are central to this determination. Comp.Gen. 98 (1953). When we held in 1974 that executive exchange participants are to receive the same relocation allowances as transferred employees we generally considered any assignment of a year or more as requiring transfer. Peter J. Dispenzirie, 62 Comp.Gen. 560 (1983).

Since then, we have recognized that the Joint Travel Regulations (JTR) now explicitly make cost a factor to be taken into account for civilian employees of the Department of Defense, 2 JTR para. C4455 and Edward W. DePiazza, 68 Comp.Gen. 465 (1989), and we have approved payment of temporary duty allowances for assignments exceeding 1 year in appropriate cases. Dessauer and Wells, 68 Comp.Gen. 454 (1989); Edward W. DePiazza, supra.

We see no reason to treat participants in the executive exchange program differently. When an employee volunteers and is selected for an exchange assignment, the agency may, in appropriate circumstances, determine that the assignment should be treated as temporary duty and that determination is not dependent on the arrangement being an accommodation to the employee involved.

/1/ Mr. Lawrence R. Rosenbaum.

/2/ Travel Allowances under Executive Interchange Program, 54 Comp.Gen. 87 (1974).

/3/ That conclusion was based on the Commission's procedures then in effect and our finding that the interchanges were primarily work assignments rather than training assignments under 5 U.S.C. Sec. 4109 (1988).

/4/ Executive Exchange Program Participants, 60 Comp.Gen. 582 (1981).

/5/ Executive Exchange Program - Travel or Relocation Expenses, B-201704/B-202015, Nov. 4, 1981.