B-44625, OCTOBER 3, 1944, 24 COMP. GEN. 269

B-44625, OCTOBER 3, 1944, 24 COMP. GEN. 269

TRANSFER OF EMPLOYEES BETWEEN FEDERAL AGENCIES UNDER WAR SERVICE REGULATIONS - TRAVELING EXPENSES, ETC. IN VIEW OF THE REVISION OF WAR MANPOWER COMMISSION DIRECTIVE X AND THE WAR SERVICE REGULATIONS, ISSUED UNDER THE FIRST WAR POWERS ACT, 1941, TO PROVIDE THAT AN EMPLOYEE TRANSFERRED, EITHER VOLUNTARILY OR INVOLUNTARILY, FROM ONE AGENCY TO ANOTHER FOR THE BETTER PROSECUTION OF THE WAR SHALL BE REIMBURSED FOR THE EXPENSES OF TRAVEL AND TRANSPORTATION OF HOUSEHOLD GOODS INCIDENT TO THE TRANSFER, IT NOW IS MANDATORY THAT AN AGENCY REIMBURSE AN EMPLOYEE, FROM AN APPROPRIATION OTHERWISE AVAILABLE AND WITHIN THE LIMITS OF APPLICABLE REGULATIONS, UPON PRESENTATION OF OF A CLAIM FOR HIS TRAVEL, ETC., EXPENSES INCIDENT TO A VOLUNTARY TRANSFER TO THAT AGENCY UNDER THE TERMS AND CONDITIONS OF SAID DIRECTIVE AND WAR SERVICE REGULATIONS. 22 COMP. GEN. 873, MODIFIED.

COMPTROLLER GENERAL WARREN TO THE PRICE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, OCTOBER 3, 1944:

I HAVE YOUR LETTER OF SEPTEMBER 19, 1944, AS FOLLOWS:

IT IS PROVIDED IN SECTION 2 (A) (3) OF WAR SERVICE REGULATIONS IX AS REVISED IN ACCORDANCE WITH AMENDMENT NO. 2 OF WAR MANPOWER COMMISSION DIRECTIVE NO. 10 THAT WHENEVER A PERSON IS TRANSFERRED FROM ANOTHER GOVERNMENT AGENCY, AS AUTHORIZED BY SUCH REGULATION, TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE CONCERNED THAT THE AGENCY TO WHICH HE IS TRANSFERRED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF AND HIS HOUSEHOLD GOODS OUT OF FUNDS AVAILABLE TO THE AGENCY FOR EXPENSES OF TRAVEL OR TRANSPORTATION, IN ACCORDANCE WITH GOVERNMENT REGULATIONS.

AS THE CONSENT OF THE EMPLOYEE IS NOT REQUIRED, AS PROVIDED IN SUB SECTION (A) (2) OF SECTION 2 OF THE ABOVE REGULATION, IT APPEARS IMMATERIAL AS TO WHETHER THE TRANSFER IS VOLUNTARY OR OTHERWISE WITH RESPECT TO PAYMENT OF EXPENSES INCURRED INCIDENTAL TO THE TRANSFER. ASSUMING THIS INTERPRETATION TO BE CORRECT, IT WOULD ALSO SEEM THAT DECISION B-32689 DATED MARCH 6, 1943 (22 COMP. GEN. 873) MIGHT BE CONSIDERED AS NULLIFIED TO THE EXTENT OF REMOVING ANY OBJECTION FROM YOUR OFFICE TO PAYMENT OF SUCH EXPENSES IN THE CASE OF A TRANSFER WITH THE CONSENT OF THE EMPLOYEE. HOWEVER, IN THE SAME DECISION, YOUR OFFICE CONCLUDED THAT POWER WAS VESTED IN THE PRESIDENT BY THE FIRST WAR POWERS ACT, 1941, 55 STAT. 838 TO AUTHORIZE HIM OR THE WAR MANPOWER COMMISSION AND/OR THE UNITED STATES CIVIL SERVICE COMMISSION TO OBLIGATE FUNDS OF A FEDERAL AGENCY TO WHICH AN EMPLOYEE IS INVOLUNTARILY TRANSFERRED FOR THE COST OF TRANSPORTING HIMSELF, HIS IMMEDIATE FAMILY, AND HIS HOUSEHOLD GOODS. IN VIEW OF THE REVISED REGULATION CITED IN THE FIRST PARAGRAPH ABOVE, THESE POWERS MIGHT NOW BE CONSTRUED TO APPLY ALSO TO VOLUNTARY TRANSFER.

YOUR OPINION AT AN EARLY DATE IS RESPECTFULLY REQUESTED THEREFORE AS TO WHETHER IT BECOMES MANDATORY UPON THE AGENCY TO WHICH AN EMPLOYEE IS TRANSFERRED UNDER THESE REGULATIONS, WITH OR WITHOUT HIS CONSENT, TO REIMBURSE THE EMPLOYEE UPON PRESENTATION OF CLAIM, FOR THE EXPENSE OF TRAVEL AND TRANSPORTATION OF HIS HOUSEHOLD GOODS TO HIS NEW OFFICIAL STATION EVEN IF NO PREVIOUS COMMITMENT HAD BEEN MADE TO HIM BY THE AGENCY FOR SUCH REIMBURSEMENT NOR HAD THE REIMBURSEMENT BEEN CONSIDERED AS A CONDITION FOR ACCEPTANCE OF THE APPOINTMENT?

IN THE REFERRED-TO DECISION OF MARCH 6, 1943, 22 COMP. GEN. 873, IN REPLY TO A SUBMISSION IN WHICH THE APPLICABLE PROVISIONS OF THE FIRST WAR POWERS ACT, 1941, 55 STAT. 838, AND THE WAR MANPOWER COMMISSION'S DIRECTIVE X WERE QUOTED, IT WAS HELD--- AFTER QUOTING PARAGRAPH (3) OF SECTION 2 (A) OF WAR SERVICE REGULATION IX--- AS FOLLOWS:

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.

WAR MANPOWER COMMISSION DIRECTIVE X WAS AMENDED UNDER DATE OF MARCH 27, 1944 (PAGE 3534, FEDERAL REGISTER OF APRIL 1, 1944), TO READ SO FAR AS HERE MATERIAL, AS FOLLOWS:

WHENEVER THE CIVIL SERVICE COMMISSION SHALL FIND THAT A CIVILIAN EMPLOYEE OF ANY DEPARTMENT OR 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: PROVIDED, THAT WHENEVER SUCH TRANSFER IS DIRECTED TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE CONCERNED, THE DEPARTMENT OR AGENCY TO WHICH HE IS TRANSFERRED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF, AND HIS HOUSEHOLD GOODS, OUT OF FUNDS AVAILABLE TO THE AGENCY FOR EXPENSES OF TRAVEL OR TRANSPORTATION, IN ACCORDANCE WITH GOVERNMENT REGULATIONS.

BY DEPARTMENTAL CIRCULAR 493, EFFECTIVE MARCH 29, 1944, THE CIVIL SERVICE COMMISSION AMENDED PARAGRAPH (3) OF SECTION 2 (A) OF WAR SERVICE REGULATION IX TO READ AS FOLLOWS:

(3) WHENEVER A TRANSFER IS AUTHORIZED UNDER THIS SUBSECTION TO A POSITION BEYOND REASONABLE COMMUTING DISTANCE FROM THE HOME OF THE EMPLOYEE CONCERNED, THE DEPARTMENT OR AGENCY TO WHICH HE IS TRANSFERRED SHALL REIMBURSE THE EMPLOYEE FOR THE COST OF TRANSPORTING HIMSELF, AND HIS HOUSEHOLD GOODS, OUT OF FUNDS AVAILABLE TO THE AGENCY FOR EXPENSES OF TRAVEL OR TRANSPORTATION, IN ACCORDANCE WITH GOVERNMENT REGULATIONS. EMPLOYEE SHALL, WITHOUT HIS CONSENT, BE TRANSFERRED TO A POSITION AT A LOWER SALARY THAN HE IS RECEIVING AT THE TIME TRANSFER IS INITIATED. AND IN SUPPLEMENT NO. 2 OF SAID DEPARTMENTAL CIRCULAR NO. 493 OF THE CIVIL SERVICE COMMISSION, DATED SEPTEMBER 7, 1944, IT IS PROVIDED--- AFTER QUOTING THE ABOVE-MENTIONED WAR SERVICE REGULATION, AS AMENDED--- AS FOLLOWS:

THE EMPLOYEE IS ENTITLED TO THE EXPENSES SPECIFIED IN CONNECTION WITH A TRANSFER BEYOND A REASONABLE COMMUTING DISTANCE FROM HIS HOME WHEN IT IS DETERMINED BY THE COMMISSION THAT THE EMPLOYEE WILL BY SUCH TRANSFER MAKE A MORE EFFECTIVE CONTRIBUTION TO THE WAR PROGRAM IN THE POSITION TO WHICH TRANSFERRED. THE BASIS FOR THIS FINDING IS IDENTICAL WITH THE BASIS USED IN DETERMINING WHETHER THE EMPLOYEE IS ENTITLED TO REEMPLOYMENT RIGHTS. THE EMPLOYEE WILL, THEREFORE, BE ENTITLED TO PAYMENT OF THE TRANSPORTATION EXPENSES SPECIFIED WHENEVER THE COMMISSION AUTHORIZES HIS TRANSFER TO A POSITION BEYOND A REASONABLE COMMUTING DISTANCE FROM HIS HOME UNDER THE PROVISIONS OF SECTION 2 (A) OF WAR SERVICE REGULATION IX. REGULATION IX WILL NOT SERVE AS AUTHORITY FOR PAYMENT OF TRANSPORTATION EXPENSES IN ANY OTHER CASES.

IT WILL BE ASSUMED BY THE COMMISSION THAT AN AGENCY HAS AVAILABLE FUNDS FOR THE PAYMENT OF TRANSPORTATION EXPENSES WHENEVER IT REQUESTS THE TRANSFER OF AN EMPLOYEE TO A POSITION BEYOND A REASONABLE COMMUTING DISTANCE FROM HIS HOME. IF THE COMMISSION AUTHORIZES A TRANSFER WHICH REQUIRES THE PAYMENT OF TRANSPORTATION EXPENSES AND THE AGENCY DOES NOT HAVE FUNDS FOR THE PAYMENT OF SUCH TRANSPORTATION EXPENSES, SUCH AUTHORITY MAY NOT BE USED AND MUST BE RETURNED TO THE COMMISSION FOR CANCELLATION.

THE COMMISSION, IN ANY CASE WHERE TRANSPORTATION EXPENSES MAY BE INVOLVED, WILL ASSUME IN FILLING DIRECT RECRUITING ORDERS BY TRANSFER, THAT THOSE AGENCIES WHICH HAVE ARRANGEMENTS WITH THE COMMISSION FOR DIRECT RECRUITMENT FUNDS AVAILABLE FOR THE PAYMENT OF TRANSPORTATION EXPENSES TO SUCH TRANSFEREES IN ACCORDANCE WITH GOVERNMENT REGULATIONS.

PURSUANT TO THE AMENDED WAR MANPOWER COMMISSION DIRECTIVE AND THE CIVIL SERVICE COMMISSION REGULATION, IT NOW IS IMMATERIAL WHETHER THE TRANSFER OF AN EMPLOYEE FROM ONE AGENCY TO ANOTHER IS WITH OR WITHOUT THE CONSENT OF THE EMPLOYEE, PROVIDED "THE CIVIL SERVICE COMMISSION SHALL FIND THAT A CIVILIAN EMPLOYEE OF ANY DEPARTMENT OR 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 SAME BASIC AUTHORITY OF LAW OF THE FIRST WAR POWERS ACT, 1941--- WHICH WAS HELD IN SAID DECISION OF MARCH 6, 1943, TO BE SUFFICIENT TO AUTHORIZE THE PRESIDENT OR THE WAR MANPOWER COMMISSION AND THE CIVIL SERVICE COMMISSION, TO WHICH HIS AUTHORITY HAS BEEN DELEGATED, TO OBLIGATE APPROPRIATED FUNDS OF A FEDERAL AGENCY TO WHICH AN EMPLOYEE WAS INVOLUNTARILY TRANSFERRED, FOR THE COST OF TRANSPORTING THE EMPLOYEE AND HIS HOUSEHOLD GOODS IN CONNECTION WITH SUCH A TRANSFER, IS SUFFICIENT, ALSO, TO OBLIGATE THE APPROPRIATED FUNDS OF A FEDERAL AGENCY TO WHICH AN EMPLOYEE VOLUNTARILY IS TRANSFERRED UNDER THE TERMS AND CONDITIONS OF THE AMENDED WAR MANPOWER COMMISSION DIRECTIVE AND THE CIVIL SERVICE COMMISSION REGULATION, SUPRA.

REFERRING TO THE ITALICIZED PORTION OF SUPPLEMENT 2 OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 493 DATED SEPTEMBER 7, 1944, ABOVE QUOTED, IF AN AGENCY USES THE COMMISSION'S AUTHORIZATION ISSUED PURSUANT TO SAID WAR MANPOWER COMMISSION DIRECTIVE AND CIVIL SERVICE REGULATION TO TRANSFER AN EMPLOYEE FROM SOME OTHER AGENCY TO SUCH AGENCY, EITHER WITH OR WITHOUT THE CONSENT OF THE EMPLOYEE, IT BECOMES MANDATORY UPON SAID AGENCY TO WHICH THE EMPLOYEE WAS TRANSFERRED TO REIMBURSE THE EMPLOYEE UPON PRESENTATION OF A CLAIM FOR EXPENSES OF HIS TRAVEL AND TRANSPORTATION OF HIS HOUSEHOLD GOODS, WITHIN THE LIMITS OF APPLICABLE REGULATIONS, FROM HIS OFFICIAL STATION IN HIS POSITION IN THE AGENCY FROM WHICH TRANSFERRED TO THE OFFICIAL STATION IN HIS NEW POSITION IN THE AGENCY TO WHICH TRANSFERRED. IT IS SPECIFICALLY PROVIDED THAT IF AN AGENCY DOES NOT HAVE FUNDS AVAILABLE FOR SUCH PURPOSE, THE COMMISSION'S AUTHORIZATION FOR THE TRANSFER SHOULD NOT BE USED BUT SHOULD BE RETURNED TO THE COMMISSION FOR CANCELLATION.

IN THE LIGHT OF THE FOREGOING, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.