B-71059, JANUARY 26, 1948, 27 COMP. GEN. 394

B-71059: Jan 26, 1948

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WAS APPOINTED ON A PERMANENT BASIS BY THE SAME AGENCY TO A DISTINCTLY DIFFERENT POSITION AT THE SAME GEOGRAPHICAL LOCATION MAY BE REGARDED AS A NEW APPOINTEE WITHIN THE MEANING OF SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2. AS FOLLOWS: YOUR OPINION IS REQUESTED AS TO WHETHER EXPENSES OF TRANSPORTATION OF IMMEDIATE FAMILY AND EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS MAY BE ALLOWED UNDER THE AUTHORITY OF SECTION 7 OF THE ACT OF AUGUST 2. AN INDIVIDUAL WAS GIVEN AN EXCEPTED APPOINTMENT. HE WAS ALLOWED EXPENSES OF TRAVEL FROM HIS ACTUAL RESIDENCE IN OREGON. IT WAS CONTEMPLATED. THERE HAS DEVELOPED A VACANCY IN A PERMANENT POSITION OF DISTRICT RANGER AT ANCHORAGE AND IT IS DESIRED TO APPOINT THIS PERSON TO THAT JOB.

B-71059, JANUARY 26, 1948, 27 COMP. GEN. 394

TRANSPORTATION - DEPENDENTS AND HOUSEHOLD EFFECTS - CHANGE FROM TEMPORARY TO PERMANENT APPOINTMENT AT OVERSEAS POST OF DUTY AN EMPLOYEE ORIGINALLY APPOINTED ON A TEMPORARY BASIS FOR DUTY OUTSIDE THE CONTINENTAL UNITED STATES WHO, WHILE AT HIS OVERSEAS DUTY STATION, WAS APPOINTED ON A PERMANENT BASIS BY THE SAME AGENCY TO A DISTINCTLY DIFFERENT POSITION AT THE SAME GEOGRAPHICAL LOCATION MAY BE REGARDED AS A NEW APPOINTEE WITHIN THE MEANING OF SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, ON WHOSE ACCOUNT TRANSPORTATION OF HIS IMMEDIATE FAMILY AND HOUSEHOLD EFFECTS MAY BE PAID PURSUANT TO SAID SECTION FROM THE PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES WHEREAT HIS FAMILY RESIDES TO PLACE OF HIS EMPLOYMENT OVERSEAS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, JANUARY 26, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 7, 1947, AS FOLLOWS:

YOUR OPINION IS REQUESTED AS TO WHETHER EXPENSES OF TRANSPORTATION OF IMMEDIATE FAMILY AND EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS MAY BE ALLOWED UNDER THE AUTHORITY OF SECTION 7 OF THE ACT OF AUGUST 2, 1946 (60 STAT. 806) FOR AN EMPLOYEE OF THIS DEPARTMENT FROM A POINT IN THE UNITED STATES TO ALASKA UNDER THE FOLLOWING CIRCUMSTANCES:

IN MAY, 1947, AN INDIVIDUAL WAS GIVEN AN EXCEPTED APPOINTMENT, FOR NOT TO EXCEED EIGHT MONTHS, TO A POSITION OF LAND ECONOMIST IN ANCHORAGE, ALASKA. HE WAS ALLOWED EXPENSES OF TRAVEL FROM HIS ACTUAL RESIDENCE IN OREGON, ILLINOIS, TO ANCHORAGE, ALASKA. IT WAS CONTEMPLATED, AT THE TIME OF APPOINTMENT, THAT THIS EMPLOYEE WOULD BE TERMINATED AT THE CLOSE OF THE FIELD SEASON AND THAT HE WOULD BE ALLOWED RETURN EXPENSES OF TRAVEL TO POINT OF ACTUAL RESIDENCE IN THE UNITED STATES. HOWEVER, THERE HAS DEVELOPED A VACANCY IN A PERMANENT POSITION OF DISTRICT RANGER AT ANCHORAGE AND IT IS DESIRED TO APPOINT THIS PERSON TO THAT JOB. IN CASES OF THIS KIND, IT IS THE PRACTICE TO TERMINATE THE FIRST TEMPORARY EXCEPTED APPOINTMENT AND TO EFFECT A NEW EXCEPTED APPOINTMENT TO THE NEW POSITION WITHOUT TIME LIMITATION. THE QUESTION ARISES WHETHER THIS WOULD BE A "NEW APPOINTMENT" WITHIN THE TERMS OF SECTION 7 OF THE ACT OF AUGUST 2, 1946, AND WHETHER THE EMPLOYEE'S ACTUAL RESIDENCE SHOULD BE CONSIDERED AS BEING IN ANCHORAGE, ALASKA, WHERE HE HAS TEMPORARY EMPLOYMENT, OR AT HIS FORMER RESIDENCE IN THE UNITED STATES WHERE HE STILL MAINTAINS HIS HOME AND WHERE HIS FAMILY RESIDES.

WHEN THIS EMPLOYEE WAS INITIALLY APPOINTED IN MAY, 1947, EXPENSES OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS WERE NOT ALLOWED IN VIEW OF THE TEMPORARY NATURE OF HIS WORK. NOW THAT A PERMANENT POSITION HAS DEVELOPED THE INDIVIDUAL IN QUESTION WILL NOT ACCEPT THE APPOINTMENT TO THE NEW PERMANENT POSITION UNLESS HE CAN MOVE HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS TO ALASKA AT GOVERNMENT EXPENSE. IT IS NOT LIKELY THAT A NEW EMPLOYEE CAN BE RECRUITED IN ALASKA, AND THE BUREAU OF LAND MANAGEMENT IS FACED WITH THE PROSPECT OF RETURNING THIS EMPLOYEE TO THE UNITED STATES AT GOVERNMENT EXPENSE AT THE CLOSE OF THE FIELD SEASON, RECRUITING A NEW EMPLOYEE IN THE UNITED STATES TO FILL THE PERMANENT POSITION AND PAYING EXPENSES TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS FROM THE UNITED STATES TO ALASKA. IT WILL BE MORE COSTLY TO THE GOVERNMENT IF IT IS NECESSARY TO FOLLOW THESE STEPS THAN IT WOULD BE IF THE EXPENSES OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS CAN BE ALLOWED FOR THE EMPLOYEE NOW ON A TEMPORARY APPOINTMENT.

YOUR DECISION AT AN EARLY DATE WILL BE APPRECIATED.

SECTION 7 OF PUBLIC LAW 600, APPROVED AUGUST 2, 1946, 60 STAT. 808, PROVIDES:

SEC. 7. 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, AND FOR SUCH EXPENSES ON RETURN OF EMPLOYEES FROM THEIR POSTS OF DUTY 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 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.

THE PRESIDENT'S REGULATIONS ISSUED UNDER THE AUTHORITY OF SAID PUBLIC LAW 600 ARE CONTAINED IN EXECUTIVE ORDER 9805, DATED NOVEMBER 25, 1946, BUT ARE IN NO WAY HELPFUL IN DECIDING THE QUESTIONS PRESENTED.

HOWEVER, NO REASON IS APPARENT WHY, ON THE BASIS OF THE FACTS SET OUT IN YOUR LETTER, THE PROPOSED APPOINTMENT OF THE EMPLOYEE TO THE POSITION OF DISTRICT RANGER SHOULD NOT BE REGARDED AS A "NEW APPOINTMENT" WITHIN THE MEANING OF SAID SECTION 7. THE OLD AND NEW POSITIONS OBVIOUSLY ARE DISTINCTLY DIFFERENT IN THE CHARACTER OF THE DUTIES AND RESPONSIBILITIES REQUIRED, AND WHEREAS THE FIRST WAS OF A TEMPORARY NATURE FOR THE DURATION OF THE FIELD SEASON, THE PROPOSED APPOINTMENT WOULD BE ON A PERMANENT BASIS. IN THIS CASE, NEITHER THE FACT THAT THE STATION FOR BOTH POSITIONS IS AT THE SAME GEOGRAPHICAL LOCATION, NOR THE FACT THAT BOTH POSITIONS ARE UNDER THE SAME DEPARTMENT OR AGENCY MAY BE CONSIDERED AS AFFECTING THE RESULT.

IN A STRICT SENSE, THE "PLACE OF ACTUAL RESIDENCE" OF THIS EMPLOYEE AT THE TIME OF THE NEW APPOINTMENT WILL BE ANCHORAGE, ALASKA. BUT SHOULD THE EMPLOYEE BE RETURNED FROM ALASKA TO HIS HOME IN OREGON, ILLINOIS, AT GOVERNMENT EXPENSE, UPON TERMINATION OF THE TEMPORARY APPOINTMENT, IT SEEMS CLEAR THAT HE COULD THEREAFTER BE APPOINTED TO THE POSITION OF DISTRICT RANGER IN ANCHORAGE, AND, UNDER THE AUTHORITY OF SAID SECTION 7, APPROPRIATED FUNDS WOULD THEN BE AVAILABLE TO DEFRAY HIS EXPENSES OF TRAVEL, TOGETHER WITH THE TRANSPORTATION EXPENSES OF HIS FAMILY AND EFFECTS, FROM OREGON, ILLINOIS--- WHICH, IN SUCH EVENT, WOULD BE HIS "PLACE OF ACTUAL RESIDENCE"--- TO HIS PLACE OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES, NAMELY, ANCHORAGE, ALASKA. IN OTHER WORDS, IT IS SOLELY BY REASON OF THE FINANCIAL SAVING TO THE GOVERNMENT EFFECTED BY THE EMPLOYEE'S REMAINING IN ANCHORAGE THAT HIS "PLACE OF ACTUAL RESIDENCE" WILL NOT BE, IN FACT, OREGON, ILLINOIS. TO CONSTRUE THE TERMS OF THE STATUTE TO THE LETTER UNDER SUCH CIRCUMSTANCES WOULD LEAD TO AN ABSURD RESULT. CONSEQUENTLY, IN THE PARTICULAR SITUATION DESCRIBED, THE NEW APPOINTEE'S "PLACE OF ACTUAL IDENCE," FOR THE PURPOSES OF SAID SECTION 7 OF THE ACT, MAY BE REGARDED AS OREGON, ILLINOIS.