B-32689, MARCH 6, 1943, 22 COMP. GEN. 873

B-32689: Mar 6, 1943

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

AN EMPLOYEE IS INVOLUNTARILY TRANSFERRED FROM ONE FEDERAL AGENCY TO ANOTHER FOR THE BETTER PROSECUTION OF THE WAR. IS TO BE REIMBURSED. " THE GOVERNMENT REGULATIONS APPLICABLE TO INTRA-AGENCY TRANSFERS ARE GENERALLY FOR APPLICATION. THE UNITED STATES CIVIL SERVICE COMMISSION MUST FIND AND DETERMINE WHETHER THE TRANSFER IS VOLUNTARY OR INVOLUNTARY AND INDICATE ITS FINDINGS ON THE AUTHORIZATION FOR THE TRANSFER TO THE RESPECTIVE AGENCY INVOLVED. IN A CASE WHERE IT IS FOUND THAT THE TRANSFER IS INVOLUNTARY. THE AUTHORIZATION FOR TRAVEL AT GOVERNMENT EXPENSE INCIDENT TO THE TRANSFER SHOULD BE ISSUED BY THE AGENCY TO WHICH THE TRANSFER IS AUTHORIZED. WAS WITHOUT HIS CONSENT. PAYMENT FROM APPROPRIATED FUNDS OF THE EMPLOYEE'S TRAVELING EXPENSES INCIDENT TO SUCH TRANSFER MAY NOT BE MADE SOLELY ON THE BASIS OF HIS EX PARTE SELF-SERVING STATEMENT THAT THE TRANSFER WAS MADE WITHOUT HIS CONSENT.

B-32689, MARCH 6, 1943, 22 COMP. GEN. 873

TRANSFER OF EMPLOYEES BETWEEN FEDERAL AGENCIES UNDER WAR SERVICE REGULATIONS - TRAVELING EXPENSES, ETC. WHERE, UNDER AUTHORITY OF THE FIRST WAR POWERS ACT, 1941, AND REGULATIONS ISSUED PURSUANT THERETO, AN EMPLOYEE IS INVOLUNTARILY TRANSFERRED FROM ONE FEDERAL AGENCY TO ANOTHER FOR THE BETTER PROSECUTION OF THE WAR, AND IS TO BE REIMBURSED, AS PROVIDED IN THE REGULATIONS, FOR THE COST OF TRANSPORTING HIMSELF, HIS IMMEDIATE FAMILY, AND HIS HOUSEHOLD GOODS,"IN ACCORDANCE WITH GOVERNMENT REGULATIONS," THE GOVERNMENT REGULATIONS APPLICABLE TO INTRA-AGENCY TRANSFERS ARE GENERALLY FOR APPLICATION, IN THE ABSENCE OF SPECIAL REGULATIONS RELATIVE THERETO. UNDER THE REGULATIONS ISSUED PURSUANT TO THE FIRST WAR POWERS ACT, 1941, RELATING TO THE TRANSFER OF PERSONNEL BETWEEN FEDERAL AGENCIES FOR THE BETTER PROSECUTION OF THE WAR, THE UNITED STATES CIVIL SERVICE COMMISSION MUST FIND AND DETERMINE WHETHER THE TRANSFER IS VOLUNTARY OR INVOLUNTARY AND INDICATE ITS FINDINGS ON THE AUTHORIZATION FOR THE TRANSFER TO THE RESPECTIVE AGENCY INVOLVED, AND, IN A CASE WHERE IT IS FOUND THAT THE TRANSFER IS INVOLUNTARY, THE AUTHORIZATION FOR TRAVEL AT GOVERNMENT EXPENSE INCIDENT TO THE TRANSFER SHOULD BE ISSUED BY THE AGENCY TO WHICH THE TRANSFER IS AUTHORIZED. IN THE ABSENCE OF A FINDING BY THE UNITED STATES CIVIL SERVICE COMMISSION THAT THE TRANSFER OF AN EMPLOYEE FROM ONE FEDERAL AGENCY TO ANOTHER UNDER AUTHORITY OF THE FIRST WAR POWERS ACT, 1941, AND THE REGULATIONS ISSUED PURSUANT THERETO, WAS WITHOUT HIS CONSENT, PAYMENT FROM APPROPRIATED FUNDS OF THE EMPLOYEE'S TRAVELING EXPENSES INCIDENT TO SUCH TRANSFER MAY NOT BE MADE SOLELY ON THE BASIS OF HIS EX PARTE SELF-SERVING STATEMENT THAT THE TRANSFER WAS MADE WITHOUT HIS CONSENT.

COMPTROLLER GENERAL WARREN TO ALBERT D. MISLER, OFFICE FOR EMERGENCY MANAGEMENT, MARCH 6, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1943, AS FOLLOWS:

THE ATTACHED BUREAU VOUCHER NO. 33,713 FOR $48.30 IN FAVOR OF ARTEMUS E. WEATHERBEE HAS BEEN PRESENTED TO THIS OFFICE FOR ADMINISTRATIVE EXAMINATION AND CERTIFICATION. THIS VOUCHER REPRESENTS A CLAIM FOR REIMBURSEMENT OF MILEAGE NOT IN EXCESS OF COST BY COMMON CARRIER INCURRED BY THE CLAIMANT FOR TRAVEL PERFORMED BY PRIVATELY OWNED AUTOMOBILE FROM KANSAS CITY, MISSOURI TO WASHINGTON, D.C.

MR. WEATHERBEE WAS APPOINTED BY THE DIVISION OF CENTRAL ADMINISTRATIVE SERVICES, OFFICE FOR EMERGENCY MANAGEMENT AS A SENIOR CLASSIFICATION OFFICER, CAF-12, EFFECTIVE NOVEMBER 21, 1942 WITH HEADQUARTERS AT WASHINGTON, D.C. PRIOR TO THIS APPOINTMENT HE WAS EMPLOYED BY THE FARM CREDIT ADMINISTRATION, DEPARTMENT OF AGRICULTURE AS A CHIEF APPOINTMENT AND PLACEMENT OFFICER, CAF-11, WITH HIS OFFICIAL STATION DESIGNATED AT KANSAS CITY, MISSOURI. NO TRAVEL AUTHORIZATION HAS BEEN ISSUED TO COVER THIS TRAVEL.

WHILE NORMALLY EXPENSES INCURRED IN TRAVEL OF THIS NATURE, THAT IS, INVOLVING A TRANSFER BETWEEN TWO FEDERAL AGENCIES, WOULD BE CONSIDERED AS PERSONAL IN THAT IT IS CONSTRUED TO BE TRAVEL INCIDENT TO REPORTING TO A FIRST DUTY STATION (21 C.G. 613, 17 ID. 874, 13 ID. 390), MR. WEATHERBEE'S APPOINTMENT JOURNAL BEARS THE FOLLOWING NOTATION: "UNDER EXECUTIVE ORDER 9243, DIRECTIVE X OF THE WAR MANPOWER COMMISSION.' (A COPY OF THIS APPOINTMENT JOURNAL IS ATTACHED.)

THE FIRST WAR POWERS ACT, APPROVED DECEMBER 18, 1941 PROVIDES IN PART:

"* * * THE PRESIDENT IS HEREBY AUTHORIZED TO MAKE SUCH REDISTRIBUTION OF FUNCTIONS AMONG EXECUTIVE AGENCIES AS HE MAY DEEM NECESSARY, INCLUDING ANY FUNCTIONS, DUTIES AND POWERS HITHERTO BY LAW CONFERRED UPON ANY EXECUTIVE DEPARTMENT, COMMISSION, BUREAU, AGENCY, GOVERNMENTAL CORPORATION, OFFICE, OR OFFICER IN SUCH MANNER AS IN HIS JUDGMENT IS DEEMED BEST FITTED TO CARRY OUT THE PURPOSES OF THE TITLE * * * AND TO THIS END IS AUTHORIZED TO MAKE SUCH REGULATIONS AND TO ISSUE SUCH ORDERS AS HE MAY DEEM NECESSARY, WHICH REGULATIONS AND ORDERS SHALL BE IN WRITING AND SHALL BE PUBLISHED IN ACCORDANCE WITH FEDERAL REGISTER ACT OF 1935.

"* * * IN CARRYING OUT THE PURPOSE OF THIS TITLE THE PRESIDENT IS AUTHORIZED * * * TO TRANSFER ANY DUTIES OR POWERS FROM ANY EXISTING DEPARTMENT, COMMISSION, BUREAU, AGENCY, GOVERNMENTAL CORPORATION, OFFICE OR OFFICER, TO ANOTHER, TO TRANSFER THE PERSONNEL THEREOF OR ANY PART OF IT, EITHER BY DETAIL OR ASSIGNMENT, TOGETHER WITH THE WHOLE OR ANY PART OF THE RECORDS OR PUBLIC PROPERTY BELONGING THERETO (55 STAT. 838, 50 U.S.C. 601, 602).'

PURSUANT TO THIS AUTHORITY THE PRESIDENT BY EXECUTIVE ORDER NO. 9139 DATED APRIL 18, 1942 ESTABLISHED THE WAR MANPOWER COMMISSION. THIS ORDER PROVIDES IN PART:

"I. THERE IS ESTABLISHED WITHIN THE OFFICE FOR EMERGENCY MANAGEMENT OF THE EXECUTIVE OFFICE OF THE PRESIDENT A WAR MANPOWER COMMISSION WHICH CONSISTS OF THE FEDERAL SECURITY ADMINISTRATOR AS CHAIRMAN * * *.

"II. THE CHAIRMAN, AFTER CONSULTATION WITH THE MEMBERS OF THE COMMISSION SHALL:

"A. FORMULATE PLANS AND PROGRAMS AND ESTABLISH BASIC NATIONAL POLICIES TO ASSURE THE MOST EFFECTIVE MOBILIZATION AND MAXIMUM UTILIZATION OF THE NATION'S MANPOWER IN THE PROSECUTION OF THE WAR; AND ISSUE SUCH POLICY AND OPERATING DIRECTIVES AS MAY BE NECESSARY THERETO.

"E. PRESCRIBED BASIC POLICIES COVERING THE FILLING OF THE FEDERAL GOVERNMENT'S REQUIREMENTS FOR MANPOWER, EXCLUDING THOSE OF THE MILITARY AND NAVAL FORCES, AND ISSUE SUCH OPERATING DIRECTIVES AS MAY BE NECESSARY THERETO.'

UNDER THE AUTHORITY VESTED IN THE WAR MANPOWER COMMISSION BY THE PROVISIONS OF THIS EXECUTIVE ORDER, THE COMMISSION ON SEPTEMBER 14, 1942 ISSUED DIRECTIVE X WHICH STATES IN PART:

"TO ALL DEPARTMENTS AND AGENCIES OF THE FEDERAL GOVERNMENT, CONCERNING TRANSFER AND RELEASES OF FEDERAL EMPLOYEES * * *

"I. WHENEVER, THE CIVIL SERVICE COMMISSION SHALL FIND THAT A CIVILIAN EMPLOYEE OF ANY DEPARTMENT AND AGENCY OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT CAN MAKE A MORE EFFECTIVE CONTRIBUTION TO THE WAR EFFORT IN A POSITION IN SOME OTHER SUCH DEPARTMENT OR AGENCY, THE COMMISSION, WITH OR WITHOUT THE CONSENT OF THE EMPLOYEE OR OF THE DEPARTMENT OR AGENCY IN WHICH HE IS EMPLOYED OR TO WHICH HE IS TRANSFERRED SHALL DIRECT THE TRANSFER OF SUCH EMPLOYEE TO SUCH POSITION.

"VI. NO EMPLOYEE SHALL, WITHOUT HIS CONSENT, BE TRANSFERRED TO A POSITION AT A LOWER SALARY THAN HE RECEIVED AT THE TIME SUCH TRANSFER IS DIRECTED, NOR SHALL ANY EMPLOYEE, WITHOUT HIS CONSENT, BE TRANSFERRED TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE OF HIS HOME, UNLESS THE DEPARTMENT OR AGENCY CONCERNED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF, HIS IMMEDIATE FAMILY, AND HIS HOUSEHOLD EFFECTS IN ACCORDANCE WITH GOVERNMENT REGULATIONS.'

THE FOREGOING PROVISIONS OF DIRECTIVE X, SUPRA, WERE INCORPORATED INTO THE WAR SERVICE REGULATIONS IX, SEC. 2A, PARAGRAPH III, PROMULGATED BY THE CIVIL SERVICE COMMISSION, AND IN ADDITION THERETO ESTABLISHED A PROCEDURE FOR THE PRESENTATION BY AN EMPLOYEE TO BE INVOLUNTARILY TRANSFERRED OF A WRITTEN STATEMENT TO THE WAR TRANSFER UNIT GIVING HIS REASONS FOR DESIRING TO REMAIN WITH THE AGENCY WITH WHICH HE IS THEN EMPLOYED AND ALSO SETS UP A PROCEDURE FOR APPEAL TO THE COMMISSION IN THE EVENT THE TRANSFER IS DIRECTED BY THE WAR TRANSFER UNIT.

IT APPEARS FROM THE INFORMATION PRESENTED IN CONNECTION WITH THE CASE THAT WHILE THE TRANSFER WAS EFFECTED THROUGH THE WAR TRANSFER UNIT OF THE CIVIL SERVICE COMMISSION THAT MR. WEATHERBEE DID ACQUIESCE IN THE TRANSFER BUT ON CONDITION THAT THE OFFICE FOR EMERGENCY MANAGEMENT AGREE TO PAY THE TRAVELING EXPENSES AND EXPENSES INVOLVED IN TRANSPORTING HIS HOUSEHOLD EFFECTS TO WASHINGTON, D.C. (A COPY OF FORM 3876 ISSUED BY THE WAR TRANSFER UNIT OF THE CIVIL SERVICE COMMISSION IS ATTACHED.) THE RECORDS OF THE COMMISSION, HOWEVER, DO NOT REFLECT THAT THE TRANSFER WAS INVOLUNTARY WITHIN THE PURVIEW OF DIRECTIVE X.

THERE IS HOWEVER, NO WELL DEFINED RULING ON WHAT, IN FACT, CONSTITUTES AN INVOLUNTARY TRANSFER UNDER DIRECTIVE X NOR WHETHER THE AUTHORITY TO DESIGNATE A TRANSFER AS INVOLUNTARY IS VESTED IN THE AGENCY SEEKING THE EMPLOYEE OR WHETHER IT MUST SO BE DIRECTED BY THE CIVIL SERVICE COMMISSION.

IN VIEW OF THE FACTS RELATED ABOVE WE WOULD APPRECIATE YOUR ADVISING US WHETHER YOUR OFFICE CONSIDERS THE TRANSFER OF MR. WEATHERBEE AS INVOLUNTARY UNDER DIRECTIVE X OF THE WAR MANPOWER COMMISSION ENTITLING HIM TO REIMBURSEMENT FOR TRAVELING EXPENSES AND EXPENSES INCIDENT TO TRANSPORTING HIS PERSONAL HOUSEHOLD EFFECTS FROM KANSAS CITY, MISSOURI TO WASHINGTON, D.C. WE WOULD ALSO APPRECIATE YOUR INFORMING US OF THE PREREQUISITES TO THE PAYMENT OF EXPENSES OF THIS NATURE IN ACCORDANCE WITH DIRECTIVE X OF THE WAR MANPOWER COMMISSION, SUPRA.

ATTACHED TO THE VOUCHER IS A COPY OF LETTER DATED NOVEMBER 4, 1942, FROM THE UNITED STATES CIVIL SERVICE COMMISSION AUTHORIZING THE TRANSFER OF ARTEMUS E. WEATHERBEE "UNDER WAR SERVICE REGULATION IX, SECTION 2, SUBSECTION (A)," WHICH REGULATION WAS ISSUED PURSUANT TO WAR MANPOWER DIRECTIVE X, THE REFERRED-TO SUBSECTION OF THE CIVIL SERVICE REGULATION SETTING FORTH, AMONG OTHERS, THE FOLLOWING CONDITION:

(3)NO EMPLOYEE SHALL, WITHOUT HIS CONSENT, BE TRANSFERRED TO A POSITION AT A LOWER SALARY THAN HE IS RECEIVING AT THE TIME TRANSFER IS INITIATED, NOR SHALL ANY EMPLOYEE, WITHOUT HIS CONSENT, BE TRANSFERRED TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE FROM HIS HOME UNLESS THE DEPARTMENT OR AGENCY CONCERNED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF, HIS IMMEDIATE FAMILY, AND HIS HOUSEHOLD GOODS IN ACCORDANCE WITH GOVERNMENT REGULATIONS. ( ITALICS SUPPLIED.)

WHILE THE RULE HAS BEEN STATED IN THE DECISIONS CITED IN YOUR LETTER (21 COMP. GEN. 613; 17 ID. 874; 13 ID. 390) THAT GENERALLY THERE IS NO AUTHORITY OF LAW OR REGULATION TO REIMBURSE AN EMPLOYEE THE COST OF TRAVEL TO ACCEPT A NEW POSITION UPON A REGULAR TRANSFER FROM ONE FEDERAL AGENCY TO ANOTHER, IT MUST BE CONCLUDED THAT THE AUTHORITY VESTED IN THE PRESIDENT BY THE FIRST WAR POWERS ACT, 1941, 55 STAT. 838 (QUOTED IN YOUR LETTER) "TO MAKE SUCH REGULATIONS AND TO ISSUE SUCH ORDERS AS HE MAY DEEM NECESSARY," IN CONNECTION WITH TRANSFER OF PERSONNEL BETWEEN FEDERAL AGENCIES FOR THE BETTER PROSECUTION OF THE WAR, IS BROAD ENOUGH TO AUTHORIZE HIM OR THE WAR MANPOWER COMMISSION AND/OR THE UNITED STATES CIVIL SERVICE COMMISSION TO WHICH THE PRESIDENT'S AUTHORITY HAS BEEN DELEGATED, TO OBLIGATE APPROPRIATED FUNDS OF A FEDERAL AGENCY TO WHICH AN EMPLOYEE IS INVOLUNTARILY TRANSFERRED (WITHOUT HIS CONSENT) FOR THE COST OF "TRANSPORTING HIMSELF, HIS IMMEDIATE FAMILY, AND HIS HOUSEHOLD GOODS, IN ACCORDANCE WITH GOVERNMENT REGULATION.' IN SUCH CASES, THE GOVERNMENT REGULATIONS APPLICABLE TO INTRA-AGENCY TRANSFERS ARE GENERALLY FOR APPLICATION IN THE ABSENCE OF SPECIAL REGULATIONS RELATIVE THERETO. THE UNITED STATES CIVIL SERVICE COMMISSION MUST FIND AND DETERMINE WHETHER THE TRANSFER IS VOLUNTARY OR INVOLUNTARY AND INDICATE ITS FINDINGS ON THE AUTHORIZATION FOR THE TRANSFER TO THE RESPECTIVE FEDERAL AGENCY INVOLVED. THE MATTER IS NOT ONE TO BE LEFT TO THE PARTICULAR EMPLOYEE INVOLVED, THAT IS, NO PAYMENT IS AUTHORIZED FROM APPROPRIATED FUNDS SOLELY ON THE BASIS OF AN EX PARTE SELF-SERVING STATEMENT BY AN EMPLOYEE THAT HIS TRANSFER WAS MADE WITHOUT HIS CONSENT. IF THE UNITED STATES CIVIL SERVICE COMMISSION FINDS AND DETERMINES THAT THE TRANSFER IS WITHOUT THE CONSENT OF THE EMPLOYEE, THEN THE AGENCY TO WHICH THE EMPLOYEE IS THUS AUTHORIZED TO BE TRANSFERRED, SHOULD ISSUE THE PROPER TRAVEL AUTHORIZATION.

IN THE INSTANT CASE THE UNITED STATES CIVIL SERVICE COMMISSION MERELY SHOWS IN ITS AUTHORIZATION FOR THE TRANSFER DATED NOVEMBER 4, 1942, THAT THE ACTION WAS TAKEN UNDER SUBSECTION (A), SECTION 2, WAR SERVICE REGULATIONS IX, WHICH ARE BASED ON WAR MANPOWER DIRECTIVE X. THAT SECTION OF THE CIVIL SERVICE REGULATIONS AND THE CORRESPONDING PROVISIONS IN THE WAR MANPOWER DIRECTIVE AUTHORIZE TRANSFER OF EMPLOYEES EITHER WITH OR WITHOUT THEIR CONSENT. ACCORDINGLY, NOTWITHSTANDING THE EX PARTE SELF- SERVING STATEMENT OF THE EMPLOYEE HERE INVOLVED APPEARING ON HIS VOUCHER THAT HE CONSENTED TO THE TRANSFER ONLY IN THE EVENT THAT HE BE REIMBURSED THE COST OF TRANSPORTATION FROM KANSAS CITY, MISSOURI, TO WASHINGTON, D.C., THE PRESENT RECORD DOES NOT SHOW THAT THE TRANSFER WAS WITHOUT HIS CONSENT, AND ACCORDINGLY DOES NOT SUPPORT THE PAYMENT CLAIMED ON THE VOUCHER.

YOU ARE ADVISED, THEREFORE, THAT IN THE ABSENCE OF A DETERMINATION BY THE UNITED STATES CIVIL SERVICE COMMISSION THAT THE TRANSFER WAS WITHOUT THE EMPLOYEE'S CONSENT, YOU ARE NOT AUTHORIZED TO CERTIFY THE VOUCHER FOR PAYMENT.

IF, HOWEVER, THE UNITED STATES CIVIL SERVICE COMMISSION FINDS AND DETERMINES THAT THE TRANSFER IN THIS INSTANCE WAS WITHOUT THE CONSENT OF MR. WEATHERBEE, AND THE OFFICE FOR EMERGENCY MANAGEMENT CONFIRMS THE STATEMENT THAT HE WAS GIVEN VERBAL INSTRUCTIONS IN ADVANCE TO PERFORM THE NECESSARY TRAVEL, THE VOUCHER FOR TRANSPORTATION EXPENSES, NOT TO EXCEED THE COST OF TRAVEL BY COMMON CARRIER FROM KANSAS CITY, MISSOURI, TO WASHINGTON, D.C., AS CLAIMED ON THE VOUCHER, MAY BE ALLOWED.