B-76293, JUNE 15, 1948, 27 COMP. GEN. 757

B-76293: Jun 15, 1948

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DOES NOT RELATE MERELY TO CASES OF PERSONS HAVING A COMPETITIVE CIVIL SERVICE STATUS IN WHICH TRANSFERS ARE AUTHORIZED UNDER CIVIL SERVICE REGULATIONS. PROVIDED THE SERVICE IN THE TWO AGENCIES IS CONTINUOUS AND ALL STATUTORY REQUIREMENTS AND REGULATIONS ARE COMPLIED WITH. AS FOLLOWS: THE TOPOGRAPHIC BRANCH OF THE GEOLOGICAL SURVEY IS VERY DESIROUS OF OBTAINING THE SERVICES. OF SEVERAL PERSONS NOW EMPLOYED BY THE TENNESSEE VALLEY AUTHORITY WHO ARE PARTICULARLY WELL QUALIFIED FOR PERFORMING THE TYPE OF WORK FOR WHICH THEIR SERVICES ARE DESIRED. THESE INDIVIDUALS NOW OCCUPY POSITIONS IN AN AGENCY THAT IS EXEMPTED BY STATUTE FROM COMPETITIVE CIVIL SERVICE LAWS. THEY HAVE EXPRESSED THEIR WILLINGNESS TO ACCEPT EMPLOYMENT WITH THE GEOLOGICAL SURVEY ON A PERMANENT EMPLOYMENT BASIS IF THEY ARE ABLE OTHERWISE TO QUALIFY FOR PERMANENT EMPLOYMENT.

B-76293, JUNE 15, 1948, 27 COMP. GEN. 757

TRAVELING AND TRANSPORTATION EXPENSES - TRANSFERS BETWEEN DEPARTMENTS - "TRANSFER" AND "PERMANENT DUTY" DEFINED THE TERM "TRANSFER" AS USED IN SECTION 1 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AUTHORIZING THE PAYMENT OF TRAVELING AND TRANSPORTATION EXPENSES OF CIVILIAN OFFICERS AND EMPLOYEES ON "TRANSFER FROM ONE DEPARTMENT TO ANOTHER" UNDER CERTAIN CONDITIONS, DOES NOT RELATE MERELY TO CASES OF PERSONS HAVING A COMPETITIVE CIVIL SERVICE STATUS IN WHICH TRANSFERS ARE AUTHORIZED UNDER CIVIL SERVICE REGULATIONS, BUT INCLUDES ALL BONA FIDE CHANGES OF EMPLOYMENT BETWEEN DEPARTMENTS SO AS TO AUTHORIZE PAYMENT IN SUCH CASES, PROVIDED THE SERVICE IN THE TWO AGENCIES IS CONTINUOUS AND ALL STATUTORY REQUIREMENTS AND REGULATIONS ARE COMPLIED WITH. THE PHRASE "FOR PERMANENT DUTY" AS USED IN SECTION 1 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AUTHORIZING THE PAYMENT OF TRAVELING AND TRANSPORTATION EXPENSES OF CIVILIAN OFFICERS AND EMPLOYEES ON "TRANSFER FROM ONE DEPARTMENT TO ANOTHER, FOR PERMANENT DUTY," RELATES TO A CHANGE IN THE PERMANENT DUTY STATION OF THE EMPLOYEE AND NOT TO THE TENURE OF THE APPOINTMENT OF THE EMPLOYEE SO AS TO EXCLUDE FROM THE BENEFITS OF THE ACT EMPLOYEES WITH OTHER THAN PERMANENT APPOINTMENTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JUNE 15, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 7, 1948, IN PERTINENT PART, AS FOLLOWS:

THE TOPOGRAPHIC BRANCH OF THE GEOLOGICAL SURVEY IS VERY DESIROUS OF OBTAINING THE SERVICES, BY TRANSFER FROM THEIR PRESENT POSTS OF DUTY, OF SEVERAL PERSONS NOW EMPLOYED BY THE TENNESSEE VALLEY AUTHORITY WHO ARE PARTICULARLY WELL QUALIFIED FOR PERFORMING THE TYPE OF WORK FOR WHICH THEIR SERVICES ARE DESIRED. THESE INDIVIDUALS NOW OCCUPY POSITIONS IN AN AGENCY THAT IS EXEMPTED BY STATUTE FROM COMPETITIVE CIVIL SERVICE LAWS, RULES, AND REGULATIONS (SEC. 3, 48 STAT. 59; 16 U.S.C., SEC. 831B.) AND HOLD EXCEPTED APPOINTMENTS. THEY HAVE EXPRESSED THEIR WILLINGNESS TO ACCEPT EMPLOYMENT WITH THE GEOLOGICAL SURVEY ON A PERMANENT EMPLOYMENT BASIS IF THEY ARE ABLE OTHERWISE TO QUALIFY FOR PERMANENT EMPLOYMENT, PROVIDED THEIR TRAVELING AND MOVING EXPENSES CAN BE REIMBURSED TO THEM BY THE GOVERNMENT UPON THEIR TRANSFER; I.E., BY THE GEOLOGICAL SURVEY AS TRANSFEREE AGENCY.

THE QUESTION HAS ARISEN WHETHER THE PROVISIONS OF SEC. 1 OF THE ADMINISTRATIVE EXPENSE ACT (60 STAT. 806), PERMITTING THE PAYMENT FROM GOVERNMENT FUNDS OF TRAVELING AND MOVING EXPENSES FOR THE OFFICERS AND EMPLOYEES COVERED THEREBY, ARE APPLICABLE TO AND MAY INURE TO THE BENEFIT OF EMPLOYEES APPOINTED BY THE GEOLOGICAL SURVEY WHO NOW,

1. ARE SERVING WITHOUT COMPETITIVE STATUS IN POSITIONS EXCEPTED FROM THE COMPETITIVE SERVICE WHO ARE APPOINTED IN THE GEOLOGICAL SURVEY UNDER SECTION 2.114 (A) (E) OF THE TEMPORARY REGULATIONS AND WHO ENTER ON DUTY WITH THE GEOLOGICAL SURVEY WITHOUT A BREAK IN SERVICE.

2. HAVE COMPETITIVE STATUS BUT ARE HOLDING EXCEPTED APPOINTMENTS AND ARE SERVING IN POSITIONS EXCEPTED FROM THE CLASSIFICATION ACT OF 1923 WHO ARE APPOINTED BY REINSTATEMENT AND ENTER ON DUTY WITHOUT BREAK IN SERVICE.

3. ARE SERVING IN POSITIONS EXCEPTED FROM THE COMPETITIVE SERVICE, WHO DO NOT HAVE COMPETITIVE STATUS, BUT WHO ARE SELECTED FROM CERTIFICATES OF ELIGIBLES FOR PROBATIONAL APPOINTMENT AND WHO ENTER ON DUTY WITH THE GEOLOGICAL SURVEY WITHOUT BREAK IN SERVICE.

4. ARE SERVING UNDER A TEMPORARY APPOINTMENT IN ONE AGENCY AND ARE GIVEN ANOTHER TEMPORARY APPOINTMENT BY ANOTHER AGENCY WITHOUT A BREAK IN SERVICE.

5. ARE SERVING UNDER A WAR SERVICE APPOINTMENT IN ONE AGENCY AND ARE GIVEN A PROBATIONAL APPOINTMENT BY ANOTHER AGENCY WITHOUT A BREAK IN SERVICE.

IN THE CIRCUMSTANCES RECITED, YOUR EARLY DECISION IS REQUESTED ON THE QUESTION WHETHER THE EMPLOYEES WHOSE SERVICES ARE DESIRED BY TRANSFER TO THE GEOLOGICAL SURVEY TO VARIOUS POSTS WITHIN CONTINENTAL UNITED STATES MAY BE REIMBURSED FOR TRAVELING AND MOVING COSTS OF THEMSELVES AND THEIR IMMEDIATE FAMILIES UPON THE ACCOMPLISHMENT OF THEIR TRANSFERS.

SECTION 1 (A) OF PUBLIC LAW 600, APPROVED AUGUST 2, 1946, 60 STAT. 806, PROVIDES:

THAT (A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ANY CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO, IN THE INTEREST OF THE GOVERNMENT, IS TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER, INCLUDING TRANSFER FROM ONE DEPARTMENT TO ANOTHER, FOR PERMANENT DUTY, SHALL, EXCEPT AS OTHERWISE PROVIDED HEREIN, WHEN AUTHORIZED, IN THE ORDER DIRECTING THE TRAVEL, BY SUCH SUBORDINATE OFFICIAL OR OFFICIALS OF THE DEPARTMENT CONCERNED AS THE HEAD THEREOF MAY DESIGNATE FOR THE PURPOSE, BE ALLOWED AND PAID FROM GOVERNMENT FUNDS THE EXPENSES OF TRAVEL OF HIMSELF AND THE EXPENSES OF TRANSPORTATION OF HIS IMMEDIATE FAMILY (OR A COMMUTATION THEREOF IN ACCORDANCE WITH THE ACT OF FEBRUARY 14, 1931) AND THE EXPENSES OF TRANSPORTATION, PACKING, CRATING, TEMPORARY STORAGE, DRAYAGE, AND UNPACKING OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS (NOT TO EXCEED SEVEN THOUSAND POUNDS IF UNCRATED OR EIGHT THOUSAND SEVEN HUNDRED AND FIFTY POUNDS IF CRATED OR THE EQUIVALENT THEREOF WHEN TRANSPORTATION CHARGES ARE BASED ON CUBIC MEASUREMENT: PROVIDED, THAT ADVANCES OF FUNDS MAY BE MADE TO THE GUARDS AS ARE REQUIRED UNDER THE SUBSISTENCE EXPENSE ACT OF 1926 (5 U.S.C. 828); PROVIDED FURTHER, THAT THE ALLOWANCES HEREIN AUTHORIZED SHALL NOT BE APPLICABLE TO CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT AND THEIR DEPENDENTS WHEN TRANSFERRED UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 5, 1942 (50 U.S.C. 763), NOR TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, DEPARTMENT OF STATE) SHALL BE ALLOWED OR PAID FROM GOVERNMENT FUNDS WHERE THE TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST: PROVIDED FURTHER, THAT IN CASE OF TRANSFER FROM ONE DEPARTMENT TO ANOTHER SUCH EXPENSES SHALL BE PAYABLE FROM THE FUNDS OF THE DEPARTMENT TO WHICH THE OFFICER OR EMPLOYEE IS TRANSFERRED.

SECTION 18 OF THE SAME ACT, 60 STAT. 811, PROVIDES:

SEC. 18. THE WORD "DEPARTMENT" AS USED IN THIS ACT SHALL BE CONSTRUED TO INCLUDE INDEPENDENT ESTABLISHMENTS, OTHER AGENCIES, WHOLLY OWNED GOVERNMENT CORPORATIONS (THE TRANSACTIONS OF WHICH CORPORATIONS SHALL BE SUBJECT TO THE AUTHORIZATIONS AND IMITATIONS OF THIS ACT, EXCEPT THAT SECTION 9 SHALL APPLY TO THEIR ADMINISTRATIVE TRANSACTIONS ONLY), AND THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, BUT SHALL NOT INCLUDE THE SENATE, HOUSE OF REPRESENTATIVES, OR OFFICE OF THE ARCHITECT OF THE CAPITOL, OR THE OFFICERS OR EMPLOYEES THEREOF. THE WORDS "CONTINENTAL UNITED STATES" AS USED HEREIN SHALL BE CONSTRUED TO MEAN THE FORTY-EIGHT STATES AND THE DISTRICT OF COLUMBIA. THE WORD " GOVERNMENT" SHALL BE CONSTRUED TO INCLUDE THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. THE WORD "APPROPRIATION" SHALL BE CONSTRUED AS INCLUDING FUNDS MADE AVAILABLE BY LEGISLATION UNDER SECTION 104 OF THE GOVERNMENT CORPORATION CONTROL ACT, APPROVED DECEMBER 6, 1945.

IT IS THUS APPARENT FROM THE LATTER SECTION THAT THE TENNESSEE VALLEY AUTHORITY IS NOT EXCLUDED FROM THE BENEFITS PROVIDED FOR UNDER SECTION 1 OF THE ABOVE-QUOTED ACT, IF OTHERWISE WITHIN THE TERMS OF THE STATUTE. SECTION 1 IS APPLICABLE ONLY WHEN AN EMPLOYEE IS "TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER, INCLUDING TRANSFER FROM ONE DEPARTMENT TO ANOTHER," THERE IS FOR CONSIDERATION WHETHER THE WORD,"TRANSFER," WHEN RELATING TO A CHANGE FROM ONE DEPARTMENT TO ANOTHER IS TO BE CONFINED TO CASES IN WHICH TRANSFERS ARE AUTHORIZED BY CIVIL SERVICE LAWS AND REGULATIONS OR IS TO BE GIVEN A BROADER MEANING. IN CHAPTER T2-3 OF THE FEDERAL PERSONNEL MANUAL "TRANSFERS" AUTHORIZED ONLY WITH RESPECT TO FEDERAL EMPLOYEES INCLUDED IN THE COMPETITIVE CIVIL SERVICE. HOWEVER, THE GENERAL PURPOSE OF SECTION 1 OF THE ADMINISTRATIVE EXPENSE ACT IS TO MAKE PERMANENT THE PROVISIONS FOR THE TRANSFER OF EMPLOYEES BETWEEN OFFICIAL STATIONS WHICH PREVIOUSLY HAD BEEN DEPENDENT UPON SPECIAL ENACTMENTS REPEATED EACH FISCAL YEAR AND TO EXTEND A LIKE BENEFIT TO EMPLOYEES WHEN TRANSFERRED BETWEEN DEPARTMENTS. THE NECESSITY AND REASON FOR EXTENDING SUCH BENEFITS TO TRANSFERS BETWEEN DEPARTMENTS ARE DISCUSSED IN DECISION OF APRIL 28, 1938, 17 COMP. GEN. 874, CONSTRUING AN EARLIER STATUTE, IN WHICH DECISION IT WAS STATED AT PAGE 876:

THE TERM "TRANSFER" AS USED IN THE STATUTE, SUPRA, IS NOT TO BE UNDERSTOOD IN THE SAME SENSE AS THAT TERM IS UNDERSTOOD IN CONNECTION WITH THE ADMINISTRATION OF THE CIVIL SERVICE LAWS AND REGULATIONS, IN WHICH CONNECTION IT IS USED TO DESIGNATE CHANGES FROM ONE DEPARTMENT OR ESTABLISHMENT TO ANOTHER AS WELL AS FROM ONE POSITION TO ANOTHER WITHIN A DEPARTMENT OR ESTABLISHMENT. ON THE CONTRARY, THE TERM AS USED IN THIS STATUTE MUST BE UNDERSTOOD AS RELATING ONLY TO A CHANGE IN OFFICIAL STATION REQUIRED IN THE INTEREST OF THE GOVERNMENT IN CONNECTION WITH THE ADMINISTRATION OF THE ACTIVITY UNDER WHICH THE PERSON TRANSFERRED IS EMPLOYED AND FOR WHICH THE PERSON TRANSFERRED IS EMPLOYED AND FOR WHICH THE APPROPRIATION INVOLVED IS AVAILABLE.

IF A CHANGE IN OFFICIAL STATION OF AN OFFICER OR EMPLOYEE--- DIRECTED FOR THE BENEFIT OF THE GOVERNMENT--- INVOLVES NO BREAK IN SERVICE, NO TERMINATION OF EMPLOYMENT BY OPERATION OF LAW, NO CHANGE IN THE APPROPRIATION TO BE CHARGED WITH THE SALARY AND TRAVELING EXPENSES OF THE OFFICER OR EMPLOYEE, AND NO CHANGE IN THE DEPARTMENT OR ESTABLISHMENT UNDER WHICH THE SERVICE IS TO BE PERFORMED, SUCH CHANGE IN TITLE OF THE POSITION OR IN THE GRADE OR SALARY RATE OF THE OFFICER OR EMPLOYEE. COURSE, REIMBURSEMENT OF TRAVEL EXPENSES INCIDENT TO SUCH TRANSFERS IS NOT AUTHORIZED EXCEPT IN ACCORDANCE WITH THE PROVISIONS AND SUBJECT TO THE CONDITIONS PRESCRIBED IN THE STATUTE.

AS THE AUTHORITY TO TRANSFER EMPLOYEES BETWEEN OFFICIAL STATIONS WITHIN AN AGENCY NEVER HAS BEEN CONFINED TO EMPLOYEES HAVING A COMPETITIVE CIVIL SERVICE STATUS, IT APPEARS REASONABLE TO CONCLUDE THAT THERE WAS NO INTENT ON THE PART OF CONGRESS IN ENACTING PUBLIC LAW 600 TO CONFINE TRANSFERS BETWEEN DEPARTMENTS TO THE COMPETITIVE CIVIL SERVICE. ACCORDINGLY, THE BENEFITS OF SECTION 1 OF THE ACT OF AUGUST 2, 1946, WILL NOT BE CONFINED TO CASES OF PERSONS HAVING A COMPETITIVE CIVIL SERVICE STATUS IN WHICH TRANSFERS COULD HAVE BEEN AUTHORIZED UNDER CHAPTER T2-3 OF THE FEDERAL PERSONNEL MANUAL, BUT WILL BE AVAILABLE TO ALL BONA FIDE CHANGES OF OFFICIAL STATION WITHIN THE SAME AGENCY AND ALSO TO ALL SUCH CHANGES OF EMPLOYMENT BETWEEN DEPARTMENTS, AS DEFINED IN SECTION 18 OF THAT ACT, PROVIDED THE SERVICE IN THE TWO AGENCIES IS CONTINUOUS, THAT IS, WITHOUT ANY BREAK OF ONE OR MORE WORKDAYS AND ALL STATUTORY REQUIREMENTS AND REGULATIONS ARE COMPLIED WITH.

THERE REMAINS FOR CONSIDERATION THE APPLICATION OF THE WORDS,"FOR PERMANENT DUTY," AS USED IN THE STATUTE WITH RELATION TO TRANSFERS. IN A SIMILAR SITUATION IT WAS STATED IN 22 COMP. GEN. 219, AT PAGE 220:

THE WORDS,"WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY," AS USED IN BOTH THE TITLE AND BODY OF THE ACT OF OCTOBER 10, 1940, 54 STAT. 1105--- AS WELL AS IN THE PRESIDENT'SREGULATIONS THEREUNDER, EXECUTIVE ORDER NO. 8588, DATED NOVEMBER 7, 1940--- APPEAR TO RELATE TO A CHANGE IN THE PERMANENT DUTY STATION OF THE EMPLOYEE AND NOT TO THE TENURE OF THE APPOINTMENT OF THE EMPLOYEE. THUS, IF OTHER CONDITIONS OF THE STATUTE AND REGULATIONS BE MET, HOUSEHOLD GOODS ARE AUTHORIZED TO BE TRANSPORTED AT THE EXPENSE OF THE GOVERNMENT WHEN THE OFFICIAL STATION OR HEADQUARTERS OF AN EMPLOYEE IS TRANSFERRED FROM ONE PLACE TO ANOTHER-- AS DISTINGUISHED FROM OFFICIAL TRAVEL TO ANOTHER PLACE ON TEMPORARY DUTY AWAY FROM THE OFFICIAL STATION OR HEADQUARTERS OF AN EMPLOYEE--- REGARDLESS OF THE TENURE OF THE APPOINTMENT OF THE EMPLOYEE.

WHILE THE STATUTE INVOLVED IN THAT RULING APPLIED ONLY TO TRANSFERS OF OFFICIAL STATIONS WITHIN A PARTICULAR DEPARTMENT OR AGENCY, THERE APPEARS NO COGENT REASON WHY A LIKE HOLDING SHOULD NOT APPLY TO INTER DEPARTMENTAL TRANSFERS UNDER SECTION 1 OF THE ABOVE ACT.

ANSWERING YOUR SUBMISSION SPECIFICALLY, YOU ARE ADVISED THAT THE BENEFITS OF SECTION 1 OF THE ACT OF AUGUST 2, 1946, MAY BE EXTENDED TO ALL EMPLOYEES IN THE FIVE NUMBERED EXAMPLES REFERRED TO BY YOU, UPON COMPLIANCE WITH THE CONDITIONS OF THE STATUTE AND APPLICABLE REGULATIONS.