B-63999, MARCH 20, 1947, 26 COMP. GEN. 684

B-63999, MARCH 20, 1947, 26 COMP. GEN. 684

TRAVELING EXPENSES - TRANSFER OF PREFERENCE-ELIGIBLE EMPLOYEES UPON REDUCTION IN FORCE IN THE LIGHT OF THE PREFERENCE POLICY EXTENDED TO VETERANS AND CAREER EMPLOYEES IN CONNECTION WITH REDUCTION IN FORCE BY SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, AND THE CIVIL SERVICE COMMISSION "1REDUCTION IN FORCE" REGULATIONS, ISSUED PURSUANT THERETO, PREFERENCE ELIGIBLE EMPLOYEES WHO ARE REACHED FOR REDUCTION IN FORCE AT GEOGRAPHIC LOCALITIES WHERE REASSIGNMENT TO OTHER POSITIONS IS NOT POSSIBLE MAY BE PAID TRAVELING EXPENSES, AS FOR THE CONVENIENCE OF THE GOVERNMENT, IN CONNECTION WITH THEIR TRANSFER TO NEW PERMANENT DUTY STATIONS IN OTHER GEOGRAPHIC AREAS WHERE SUITABLE VACANCIES EXIST UNDER THE SAME AGENCY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, MARCH 20, 1947:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF FEBRUARY 19, 1947, REFERENCE WDOCP-PR, AS OLLOWS:

THE WAR DEPARTMENT HAS BEEN REQUESTED BY ITS COMPONENT FIELD SERVICES TO ISSUE INSTRUCTIONS OUTLINING THE PROPER SCOPE OF ADMINISTRATIVE AUTHORITY TO APPROVE PAYMENT OF TRANSPORTATION EXPENSES IN CONNECTION WITH CHANGES OF PERMANENT DUTY STATION ARISING OUT OF ADJUSTMENTS IN CIVILIAN EMPLOYMENT AND REDUCTIONS IN FORCE. IT APPEARS THAT EXISTING STATUTES, REGULATIONS AND DECISIONS OF YOUR OFFICE DO NOT AFFORD ADEQUATE CRITERIA FOR DETERMINING WHETHER SUCH TRANSFERS MEET THE "CONVENIENCE OF THE GOVERNMENT" STANDARD WHICH GOVERNS DISCRETION IN SUCH CASES.

ALTHOUGH STATUTES AND REGULATIONS GOVERNING PERSONAL TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS ARE PERMISSIVE INCHARACTER, IT IS THE POLICY OF THIS DEPARTMENT AND, WE BELIEVE, OF THE FEDERAL SERVICE GENERALLY THAT SUCH EXPENSES WILL BE BORNE BY THE GOVERNMENT WHENEVER TRAVEL IS FOR OFFICIAL PURPOSES OR SERVES PUBLIC CONVENIENCE. IT APPEARS, THEREFORE, THAT IF TRANSFERS ARISING OUT OF DEPARTMENTAL OR FEDERAL EFFORTS TO RETAIN VETERAN AND CAREER SERVICE PERSONNEL ARE DEEMED TO BE FOR THE CONVENIENCE OF THE GOVERNMENT TRANSPORTATION COSTS INCIDENT TO THOSE PROGRAMS SHOULD NOT BE IMPOSED UPON THE EMPLOYEES INVOLVED. IN THIS INSTANCE, HOWEVER, THERE IS SERIOUS DOUBT AS TO WHETHER PUBLIC CONVENIENCE OUTWEIGHS SERVICE TO THE EMPLOYEE IN SUFFICIENT EXTENT TO WARRANT A FINDING THAT AUTHORIZATION OF OFFICIAL TRAVEL IS PROPER.

AS YOU KNOW, THE CIVIL SERVICE COMMISSION'S REGULATIONS GOVERNING REDUCTION IN FORCE NOW REQUIRE THAT DISPLACED VETERAN PREFERENCE ELIGIBLES AND CAREER-SERVICE EMPLOYEES BE PLACED IN OTHER POSITIONS FOR WHICH THEY ARE QUALIFIED WITHIN THE EMPLOYING AGENCY CONCERNED. THIS REQUIREMENT IS NOT RESTRICTED TO THE IMMEDIATE GEOGRAPHIC AREA AND EMPLOYEE MAY BE PLACED IN POSITIONS FAR REMOVED FROM THE LOCATION OF THEIR LAST EMPLOYMENT. PAYMENT OR NON-PAYMENT OF TRAVEL EXPENSES MAY, THEREFORE, CONSTITUTE A VERY IMPORTANT FACTOR IN THE SUCCESS OR FAILURE OF THE PROGRAM. THE COMMISSION'S REGULATIONS ARE ISSUED PURSUANT TO SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944 TO PLACE IN EFFECT THE CRITERIA SET FORTH THEREIN. UNDER THE PRIORITY SYSTEM ESTABLISHED IN THAT ACT, THE CONGRESS HAS INDICATED AS PUBLIC POLICY THAT VETERAN PREFERENCE ELIGIBLES AND CAREER SERVICE EMPLOYEES ARE TO BE RETAINED IN EMPLOYMENT OVER OTHER CLASSES OF EMPLOYEES. IN MAKING TRANSFERS TO FOLLOW THAT POLICY THERE IS SOME BASIS FOR THE VIEW THAT PAYMENT OF TRAVEL EXPENSES WOULD BE A CONVENIENCE TO THE GOVERNMENT IN RETAINING EMPLOYEES WHOM THE STATUTE HAS DESIGNATED FOR PREFERENCE OR AS THE MOST DESIRABLE.

ON THE OTHER HAND, THE REGULATIONS MUST ALSO BE VIEWED AS GRANTING PROTECTIONS AND BENEFITS TO THE EMPLOYEE. IT IS CERTAINLY TO HIS ADVANTAGE TO HAVE THE EMPLOYING DEPARTMENT ASSUME THE RESPONSIBILITY FOR PROTECTING HIS EMPLOYMENT SECURITY. VIEWED IN THIS LIGHT, THE "CONVENIENCE" OF THE ACTION WOULD SEEM TO BE ON THE EMPLOYEE'S SIDE.

IN THIS LATTER CONNECTION IT SHOULD BE MADE AMPLY CLEAR THAT THE SHIFTS OF PERSONNEL HERE INVOLVED DO NOT NECESSARILY, OR EVEN USUALLY UNDER PRESENT CONDITIONS, MEAN THE MERE FILLING OF AN EXISTING VACANCY. EXAMPLE WILL BEST ILLUSTRATE THE TYPICAL CASE. AN EMPLOYEE OF SPRINGFIELD ARMORY IS REACHED FOR REDUCTION IN FORCE. BECAUSE HE IS A CAREER EMPLOYEE, CURRENT FEDERAL POLICIES REQUIRE THAT OTHER INSTALLATIONS OF THE DEPARTMENT BE SURVEYED TO FIND A PLACE FOR HIM. AS A RESULT OF SUCH ACTION A WAR SERVICE EMPLOYEE AT ROCK ISLAND ARSENAL IS DISPLACED AND THE CAREER EMPLOYEE TRANSFERRED TO THAT ORGANIZATION.

PREVIOUS DECISIONS OF YOUR OFFICE HAVE BEEN CAREFULLY EXAMINED, BUT NO DEFINITE INDICATION OF PROPER ANSWER TO THIS PROBLEM HAS BEEN DISCOVERED. IN THE VAST MAJORITY OF CASES, THE QUESTION OF WHAT CONSTITUTES "CONVENIENCE OF THE GOVERNMENT" HAS NOT BEEN INVOLVED. HOWEVER, IN 25 COMP. GEN. 293, YOU ADVISED THIS DEPARTMENT THAT PAYMENT OF TRAVEL EXPENSES WOULD BE PROPER IN THOSE INSTANCES WHERE TRANSFER WAS NECESSARY OR CONVENIENT IN ORDER TO PROVIDE REEMPLOYMENT TO A VETERAN ENTITLED TO THE BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, AS AMENDED. THE RULE OF THAT DECISION HAS NOT BEEN APPLIED TO THE SITUATION RAISED HEREIN FOR THE REASON THAT THE REEMPLOYMENT PROVISIONS THERE INVOLVED, CONSTITUTE A LEGISLATIVE MANDATE TO PROVIDE EMPLOYMENT FOR RETURNING VETERANS. OTHER DECISIONS ON THAT QUESTION CAST DOUBT ON THE PROPRIETY OF EXTENDING THE PRACTICE (SEE 21 COMP. GEN. 398).

THE DEPARTMENT REQUESTS YOUR ADVICE AS TO WHETHER PAYMENT OF TRAVEL EXPENSES UNDER THE PLACEMENT PROGRAM DESCRIBED ABOVE MAY BE CONSIDERED FOR THE "CONVENIENCE OF THE GOVERNMENT" WITHIN THE MEANING OF APPLICABLE STATUTES AND REGULATIONS.

SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 387, 390, PROVIDES AS FOLLOWS:

IN ANY REDUCTION IN PERSONNEL IN ANY CIVILIAN SERVICE ANY FEDERAL AGENCY, COMPETING EMPLOYEES SHALL BE RELEASED IN ACCORDANCE WITH CIVIL SERVICE COMMISSION REGULATIONS WHICH SHALL GIVE DUE EFFECT TO TENURE OF EMPLOYMENT, MILITARY PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY RATINGS: PROVIDED, THAT THE LENGTH OF TIME SPENT IN ACTIVE SERVICE IN THE ARMED FORCES OF THE UNITED STATES OF EACH SUCH EMPLOYEE SHALL BE CREDITED IN COMPUTING LENGTH OF TOTAL SERVICE: PROVIDED FURTHER, THAT PREFERENCE EMPLOYEES WHOSE EFFICIENCY RATINGS ARE "GOOD" OR BETTER SHALL BE RETAINED IN PREFERENCE TO ALL OTHER COMPETING EMPLOYEES AND THAT PREFERENCE EMPLOYEES WHOSE EFFICIENCY RATINGS ARE BELOW "GOOD" SHALL BE RETAINED IN PREFERENCE TO COMPETING NONPREFERENCE EMPLOYEES WHO HAVE EQUAL OR LOWER EFFICIENCY RATINGS: AND PROVIDED FURTHER, THAT WHEN ANY OR ALL OF THE FUNCTIONS OF ANY AGENCY ARE TRANSFERRED TO, OR WHEN ANY AGENCY IS REPLACED BY, SOME OTHER AGENCY, OR AGENCIES, ALL PREFERENCE EMPLOYEES IN THE FUNCTION OR FUNCTIONS TRANSFERRED OR IN THE AGENCY WHICH IS REPLACED BY SOME OTHER AGENCY SHALL FIRST BE TRANSFERRED TO THE REPLACING AGENCY, OR AGENCIES, FOR EMPLOYMENT IN POSITIONS FOR WHICH THEY ARE QUALIFIED, BEFORE SUCH AGENCY, OR AGENCIES, SHALL APPOINT ADDITIONAL EMPLOYEES FROM ANY OTHER SOURCE FOR SUCH POSITIONS.

THE LANGUAGE "SHALL GIVE DUE EFFECT TO TENURE OF EMPLOYMENT, MILITARY PREFERENCE, LENGTH OF SERVICE, AND EFFICIENCY RATINGS" IS SUCH AS TO REQUIRE THAT SOME DEGREE OF PREFERENCE BE GIVEN TO VETERANS AND CAREER EMPLOYEES IN THE EVENT OF REDUCTION OF PERSONNEL, THE EXTENT OF WHICH PREFERENCE IS TO BE CONTROLLED BY PROPER REGULATIONS OF THE CIVIL SERVICE COMMISSION. CONSIDERED IN THAT LIGHT, THE ABOVE-QUOTED LEGISLATIVE PREFERENCE POLICY AMOUNTS TO A STATUTORY MANDATE SIMILAR TO THAT CONTAINED IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 890, AS AMENDED, ENTITLING RETURNING VETERANS TO REEMPLOYMENT AND IMMUNITY FROM DISCHARGE (EXCEPT FOR CAUSE) FOR A PERIOD OF ONE YEAR FROM THE DATE OF RESTORATION. IN THAT CONNECTION, THE COMMISSION STATES IN ITS "1REDUCTION IN FORCE" REGULATIONS, ISSUED PURSUANT TO THE ABOVE-QUOTED STATUTE, THAT WHERE AN EMPLOYEE WITH A STATUTORY RETENTION RIGHT IS REACHED FOR ACTION IN A REDUCTION IN RCE,"HE SHALL BE PLACED IN SOME OTHER POSITION OF LIKE SENIORITY, STATUS, AND PAY ELSEWHERE IN THE DEPARTMENT, AND, WHEREVER POSSIBLE, AT THE SAME GEOGRAPHICAL LOCATION," AND THAT "1SIMILAR TREATMENT SHOULD BE ACCORDED EMPLOYEES WITH OTHER RETENTION RIGHTS, WHENEVER POSSIBLE.' THE SAID REGULATIONS SET FORTH AN OVER-ALL POLICY OF RETENTION FOR THE FEDERAL GOVERNMENT, AND, AS YOU POINT OUT, RETENTION PREFERENCE OF CERTAIN VETERANS AND CAREER EMPLOYEES IS NOT LIMITED TO A PARTICULAR GEOGRAPHIC AREA. HOWEVER, THE COMMISSION'S RETENTION AND REPLACEMENT PROGRAM IS SUCH THAT EVERY EFFORT MUST BE MADE BY A DEPARTMENT OR AGENCY TO BRING ABOUT AN ADJUSTMENT OF PERSONNEL WITH THE LEAST POSSIBLE MOVEMENT OF EMPLOYEES FROM ONE GEOGRAPHIC LOCALITY TO ANOTHER, AS EVIDENCED BY THE STATEMENT "FOR REASSIGNMENT TO A POSITION EITHER VACANT OR OCCUPIED BY A WAR SERVICE OR A TEMPORARY EMPLOYEE IN THE AGENCY IN ANOTHER GEOGRAPHIC AREA WHERE REASSIGNMENT WITHIN HIS PRESENT GEOGRAPHIC AREA CANNOT BE MADE" APPEARING IN THE CURRENT RETENTION PREFERENCE REGULATIONS OF THE COMMISSION. IN OTHER WORDS, ALL EFFORTS TO TRANSFER A PREFERENCE EMPLOYEE TO ANOTHER POSITION OR SUITABLE VACANCY AT HIS PRESENT GEOGRAPHIC LOCALITY MUST BE EXHAUSTED BEFORE HE MAY BE PLACED ELSEWHERE.

WHILE THE PROGRAM OF RETENTION AND REPLACEMENT MAY OPERATE TO THE CONVENIENCE OR BENEFIT OF THE TRANSFERRED EMPLOYEES IN CERTAIN CASES, THE REAL PURPOSE OF THE TRANSFER IN SUCH CASES IS NOT THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE BUT IS TO ENABLE THE DEPARTMENT TO CARRY OUT THE PROGRAM AS REQUIRED BY THE LAW AND THE REGULATIONS GOVERNING PREFERENCE RETENTION RIGHTS.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.