B-65984, AUGUST 11, 1947, 27 COMP. GEN. 70

B-65984, AUGUST 11, 1947, 27 COMP. GEN. 70

TRAVELING EXPENSES - EMPLOYEES APPOINTED FOR OVERSEAS DUTY - BREACH OF EMPLOYMENT AGREEMENT EFFECT WHERE THE SERVICES OF AN EMPLOYEE APPOINTED FOR DUTY OVERSEAS ARE TERMINATED, EITHER VOLUNTARILY OR FOR MISCONDUCT, PRIOR TO THE COMPLETION OF THE PERIOD OF SERVICE PRESCRIBED IN HIS EMPLOYMENT AGREEMENT PROVIDING, IN CONSONANCE WITH THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, FOR THE FORFEITURE OF RETURN TRANSPORTATION AT GOVERNMENT EXPENSE IN THE EVENT OF EARLY TERMINATION OF EMPLOYMENT, THE OBLIGATION OF THE APPOINTING AGENCY TO RETURN TRANSPORTATION AT GOVERNMENT EXPENSE IN THE EVENT OF EARLY TERMINATION OF EMPLOYMENT, THE OBLIGATION OF THE APPOINTING AGENCY TO RETURN THE EMPLOYEE, HIS IMMEDIATE FAMILY, OR HIS HOUSEHOLD EFFECTS TO THE UNITED STATES AT GOVERNMENT EXPENSE CEASES AND THERE IS NO AUTHORITY ADMINISTRATIVELY THEREAFTER TO ASSUME SUCH OBLIGATION. THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, REQUIRING, AS A CONDITION TO THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES TO AND FROM OVERSEAS POSTS OF DUTY, THAT NEW APPOINTEES AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING APPOINTMENT, ARE TO BE CONSIDERED AS PRESCRIBING A MINIMUM PERIOD, ONLY, AND, THEREFORE, IT IS WITHIN THE ADMINISTRATIVE DISCRETION TO PRESCRIBE LONGER PERIODS OF SERVICE WITH RESPECT TO THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES EITHER IN GOING TO OR RETURNING FROM AN OVERSEAS POST OF DUTY.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, PHILIPPINE WAR DAMAGE COMMISSION, AUGUST 11, 1947:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 6, 1947, AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO YOUR OFFICE FOR THE PURPOSE OF SETTING UP A DEBT DUE TO THE UNITED STATES A CLAIM UNDER THE FOLLOWING CONDITIONS: UNDER DATE OF OCTOBER 21, 1946, AN INDIVIDUAL WAS APPOINTED TO A POSITION WITH THIS COMMISSION. IN NOVEMBER, 1946, HE WAS TRANSPORTED AT GOVERNMENT EXPENSE FROM WASHINGTON, D.C. TO MANILA, PHILIPPINES. PRIOR TO LEAVING THE UNITED STATES HE WAS REQUIRED TO SIGN WHAT IS TITLED " STANDARD CONDITIONS OF EMPLOYMENT FOR UNITED STATES CITIZENS EMPLOYED BY THE PHILIPPINE WAR DAMAGE COMMISSION," A COPY OF WHICH IS HERETO ATTACHED. UNDER THE TERMS OF THE CONDITIONS SO STATED THE EMPLOYEE WAS REQUIRED TO REMAIN IN THE SERVICE OF THE COMMISSION, OR BY INFERENCE WITH ANY OTHER GOVERNMENT AGENCY, FOR A PERIOD OF ONE YEAR AFTER ARRIVING IN THE PHILIPPINES OR IN THE EVENT OF FAILURE TO DO SO TO REPAY THE COST OF HIS TRANSPORTATION. BECAUSE OF MISCONDUCT THE EMPLOYEE WAS ORIGINALLY WARNED AND AN UNDATED RESIGNATION WAS REQUESTED BY THE COMMISSION. THE CONTINUED OVERT ACTS RESULTED IN THE COMMISSION'S ACCEPTING SUCH RESIGNATION AS OF MARCH 7, 1947. AT THAT TIME THE EMPLOYEE WAS ADVISED THAT THE COMMISSION WOULD NOT PAY FOR HIS RETURN TRANSPORTATION. THE COMMISSION TOOK THE VIEW THAT AFTER THE EMPLOYEE HAD VIOLATED HIS CONTRACT THERE WAS A QUESTION AS TO WHETHER GOVERNMENT FUNDS COULD BE USED FOR HIS RETURN TRANSPORTATION.

SUBSEQUENTLY, THE EMPLOYEE APPEALED TO THE UNITED STATES CONSUL AND UNITED STATES EMBASSY OFFICIALS, POINTING OUT THAT HE WAS STRANDED AND WITHOUT FUNDS TO PAY FOR HIS RETURN PASSAGE. IN CONFERENCES WITH EMBASSY OFFICIALS, FOLLOWED THAT WHERE AN AGENCY OF THE UNITED STATES GOVERNMENT BROUGHT AN EMPLOYEE TO A FOREIGN COUNTRY, AND WHERE SUCH EMPLOYEE BECAME STRANDED, IT WAS THE OBLIGATION OF SUCH AGENCY TO RETURN HIM TO THE UNITED STATES. THEIR REASONS WERE THAT IT WOULD SERIOUSLY REFLECT ON THE PRESTIGE OF THE UNITED STATES GOVERNMENT IF THIS WERE NOT DONE AND THAT IF THE PHILIPPINE GOVERNMENT FOUND IT NECESSARY TO DEPORT HIM, THE EVENTUAL COST TO THE UNITED STATES GOVERNMENT WOULD BE GREATER THAN WOULD BE THE COST OF THE RETURN PASSAGE BY THIS COMMISSION. THEY FURTHER INSISTED THAT WHEN EMPLOYEES OF THIS COMMISSION WERE BROUGHT IN UNDER SPECIAL PASSPORTS, THERE WAS AN OBLIGATION TO RETURN THE EMPLOYEE TO HIS PLACE OF RESIDENCE IN THE UNITED STATES. THE NECESSITY FOR OBTAINING IMMEDIATE PASSAGE DID NOT PERMIT THAT WE OBTAIN AN ADVANCE OPINION FROM YOUR OFFICE.

IT IS TO BE NOTED THAT SECTION 7 OF PUBLIC LAW 600, APPROVED AUGUST 2, 1946 (60 STAT. 806) PROVIDES AS FOLLOWS:

"APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT TO PLACES OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES, TO THE PLACES OF THEIR ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED NEW APPOINTEES UNLESS AND UNTIL THE PERSON SELECTED FOR APPOINTMENT SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR THE TWELVE MONTHS FOLLOWING HIS APPOINTMENT, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL. IN CASE OF A VIOLATION OF SUCH AGREEMENT ANY MONEYS EXPENDED BY THE UNITED STATES ON ACCOUNT OF SUCH TRAVEL AND TRANSPORTATION SHALL BE CONSIDERED AS A DEBT DUE BY THE INDIVIDUAL CONCERNED TO THE UNITED STATES. THIS SECTION SHALL NOT APPLY TO APPROPRIATIONS FOR THE FOREIGN SERVICE, STATE DEPARTMENT.'

IN VIEW OF THE POSSIBILITY THAT SIMILAR CASES MAY ARISE IN THE FUTURE, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. WHERE AN EMPLOYEE VIOLATES AN AGREEMENT TO REMAIN IN THE EMPLOY OF THE COMMISSION AND IS UNWILLING OR UNABLE TO PAY THE COST OF HIS RETURN TRANSPORTATION FROM THE PHILIPPINES TO HIS PLACE OF RESIDENCE IN THE UNITED STATES, IS THE COMMISSION OBLIGATED UNDER PUBLIC LAW 600 TO RETURN HIM TO THE UNITED STATES AT GOVERNMENT EXPENSE AND SUBSEQUENTLY REPORT SUCH COSTS TO YOUR OFFICE FOR COLLECTION, OR IS THE COMMISSION WITHOUT FURTHER AUTHORITY TO OBLIGATE GOVERNMENT FUNDS WHEN A BREACH OF AGREEMENT OCCURS?

2. IF YOUR ANSWER TO QUESTION NO. 1 IS IN THE NEGATIVE, PLEASE ADVISE AS TO WHAT PROCEDURE SHOULD BE FOLLOWED IN SUCH CASES.

3. IN VIEW OF POSSIBLE CONFLICTS WITH SECTION 7 OF PUBLIC LAW 600, DOES THE COMMISSION HAVE AUTHORITY TO REQUIRE EMPLOYEES BY AGREEMENT TO OBLIGATE THEMSELVES TO PAY FOR THEIR RETURN TRANSPORTATION IF THEY LEAVE GOVERNMENT EMPLOYMENT AFTER 12 MONTHS FOLLOWING THEIR APPOINTMENT BUT BEFORE COMPLETING TWO YEARS' SERVICE AS REQUIRED BY THE COMMISSION'S REGULATIONS?

4. IS THE OBLIGATION TO RETURN THE EMPLOYEE'S FAMILY AND HOUSEHOLD EFFECTS GOVERNED BY YOUR ANSWERS TO QUESTIONS 1, 2, AND 3?

THE " STANDARD CONDITIONS OF EMPLOYMENT FOR UNITED STATES CITIZENS EMPLOYED BY PHILIPPINE WAR DAMAGE COMMISSION" REFERRED TO IN YOUR LETTER-- - WHICH IT IS UNDERSTOOD EMPLOYEES OF THE COMMISSION ARE REQUIRED TO SIGN PRIOR TO LEAVING THE UNITED STATES--- PROVIDES, IN PART, AS FOLLOWS:

TRANSPORTATION

3. THE COMMISSION WILL PROVIDE TRANSPORTATION AT ITS EXPENSE FOR THOSE EMPLOYEES WHO ARE TRANSPORTED TO THE PHILIPPINES FOR EMPLOYMENT BY THE COMMISSION, AND UPON THE COMPLETION OF SUCH EMPLOYMENT IT WILL PROVIDE RETURN TRANSPORTATION TO THEIR PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES AT THE TIME OF APPOINTMENT, SUBJECT TO THE FOLLOWING:

(A) IF THE EMPLOYEE SHALL VOLUNTARILY LEAVE THE EMPLOYMENT OF THE COMMISSION, OR SHALL BE REMOVED BECAUSE OF HIS MISCONDUCT, WITHIN 12 MONTHS FROM ARRIVAL AT HIS DUTY STATION, HE SHALL BE OBLIGATED TO REPAY TO THE COMMISSION, OR TO THE UNITED STATES GOVERNMENT, THE COST OF HIS TRANSPORTATION AND THE COMMISSION IS AUTHORIZED TO WITHHOLD PAYMENTS OF SALARY OR LIVING ALLOWANCES, OR OTHERWISE COLLECT TO THE EXTENT OF SUCH OBLIGATION. THE COMMISSION SHALL NOT BE OBLIGATED TO PAY FOR THE RETURN OF THE EMPLOYEE TO THE UNITED STATES.

(B) IF THE EMPLOYEE SHALL VOLUNTARILY LEAVE THE EMPLOYMENT OF THE COMMISSION, OR SHALL BE REMOVED BECAUSE OF HIS MISCONDUCT, WITHIN 24 MONTHS FROM ARRIVAL AT HIS DUTY STATION IN THE PHILIPPINES, THE COMMISSION SHALL NOT BE OBLIGATED TO PAY FOR THE RETURN OF THE EMPLOYEE TO THE UNITED STATES.

(C) THE FOREGOING IS SUBJECT TO SUCH EXCEPTIONS AS THE COMMISSION MAY DETERMINE FOR GOOD CAUSE SHOWN. WHILE THE ABOVE-QUOTED PROVISIONS- - WHICH FORM A PART OF THE CONTRACT OF EMPLOYMENT--- ARE EXPRESSED IN TERMS DIFFERING SOMEWHAT FROM THE LANGUAGE CONTEMPLATED UNDER THE PROVISO IN SECTION 7 OF PUBLIC LAW 600, 60 STAT. 808, QUOTED IN YOUR LETTER, THEY CLEARLY ARE WITHIN THE SCOPE OF THAT SECTION AND ARE IN CONSONANCE WITH THE PURPOSE AND INTENT THEREOF. UNDER THE TERMS OF SUCH AN AGREEMENT, AN EMPLOYEE WHO VOLUNTARILY DISCONTINUES HIS EMPLOYMENT WITH THE COMMISSION OR WHO IS REMOVED BECAUSE OF HIS MISCONDUCT WITHIN TWELVE MONTHS FROM HIS ARRIVAL AT HIS FOREIGN DUTY STATION IS OBLIGATED TO REPAY TO THE COMMISSION OR TO THE UNITED STATES THE COST OF HIS TRANSPORTATION TO SUCH STATION, AND, IN ADDITION THERETO, FORFEITS HIS RIGHT TO RETURN TRANSPORTATION AT GOVERNMENT EXPENSE. HENCE, WHERE, AS IN THE CASE MENTIONED IN YOUR LETTER, AN EMPLOYEE'S SERVICES ARE TERMINATED FOR EITHER OF THE REASONS STATED IN THE SAID AGREEMENT, PRIOR TO THE COMPLETION OF THE PRESCRIBED PERIOD, UNDER THE PLAIN TERMS OF THE EMPLOYMENT AGREEMENT, THE OBLIGATION OF THE COMMISSION TO RETURN HIM TO THE UNITED STATES AT GOVERNMENT EXPENSE CEASES AND THERE IS NO AUTHORITY ADMINISTRATIVELY THEREAFTER TO ASSUME SUCH OBLIGATION. QUESTION 1 IS ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION 2, IT MAY BE STATED THAT, IN LINE WITH THE ANSWER TO QUESTION 1, ABOVE, THE ADMINISTRATIVE AUTHORITY TO AUTHORIZE RETURN TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE TERMINATES UPON THE FAILURE OF THE EMPLOYEE TO FULFILL THE CONDITIONS OF THE EMPLOYMENT AGREEMENT RESPECTING THE LENGTH OF SERVICE AT HIS FOREIGN DUTY STATION. HENCE, SO FAR AS CONCERNS THE RETURN OF THE EMPLOYEE OR HIS IMMEDIATE FAMILY TO THE UNITED STATES, NO ADMINISTRATIVE ACTION WITH RESPECT TO THE PAYMENT THEREFOR, OR THE ADVANCE OF FUNDS TO DEFRAY SUCH EXPENSES, IS EITHER REQUIRED OR AUTHORIZED. THE REPATRIATION OF STRANDED CITIZENS OF THE UNITED STATES IS NOT A MATTER FOR THE CONSIDERATION OF THE VARIOUS DEPARTMENTS AND AGENCIES OF THE GOVERNMENT EMPLOYING CIVILIAN PERSONNEL OUTSIDE THE UNITED UNITED AND I AM AWARE OF NO STATUTORY PROVISION UNDER WHICH THEIR APPROPRIATIONS PROPERLY MIGHT BE CONSIDERED AVAILABLE FOR SUCH PURPOSES. RATHER, SUCH MATTERS APPEAR MORE APPROPRIATE FOR CONSIDERATION IN CONNECTION WITH THE USE OF APPROPRIATIONS UNDER THE DEPARTMENT OF STATE.

THE PROVISIONS OF SECTION 7 OF PUBLIC LAW 600, SUPRA, RESPECTING AGREEMENTS TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING APPOINTMENT MAY BE CONSIDERED AS PRESCRIBING A MINIMUM PERIOD; AND, THEREFORE, IT IS WITHIN THE DISCRETION OF THE VARIOUS DEPARTMENTS AND AGENCIES TO PRESCRIBE SUCH LONGER PERIODS AS MAY BE DEEMED APPROPRIATE WITH RESPECT TO THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES EITHER IN GOING TO OR RETURNING FROM A FOREIGN DUTY POST. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE. ALSO, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.