B-252815 March 24, 1994

B-252815 March 24, 1994

Civilian Personnel Relocation Temporary quarters Determination Criteria An agency questions whether quarters occupied by a transferring employee at his new duty station were temporary or permanent. Such a decision is a matter of agency discretion. In this case, we affirm the initial determination that the quarters were temporary because the employee signed a month-to-month lease, the house he rented was up for sale, he
left over half of his household goods unpacked in the residence and he
showed that he had made a reasonable effort to find suitable housing.
Payment of other real estate expenses is also affirmed.

Mr. Darold D. Foxworthy
Authorized Certifying Officer
Forest Service - Washington Office
U.S. Department of Agriculture
14th and Independence Avenue, SW
Washington, D.C. 20090-6090

Dear Mr. Foxworthy:

This further responds to your letter dated March 18, 1993, with
enclosures regarding certain relocation expenses claimed by Mr. James S.
Franzel incident to his 1988 transfer at government expense from
Petersburg, Alaska, to Coeur D'Alene, Idaho (your file reference: 6570).

In 1988, Mr. Franzel relocated at government expense from Petersburg,
Alaska to Coeur D'Alene, Idaho. There is no dispute over the validity of
the orders, including authorization for up to 60 days of temporary
quarters subsistence. Mr. Franzel and his family arrived at Coeur
D'Alene on February 1, 1988, and began occupying temporary quarters at
the Garden Motel. On February 18, 1988, Mr. Franzel moved his family
into a rental residence at 722 Empire Avenue, where they continued to
reside until the Spring of 1990, when Mr. Franzel transferred again, this
time to Sitka, Alaska.

At the end of the 60-day period for which temporary quarters subsistence
expense (TQSE) was authorized incident to his 1988 relocation, Mr.
Franzel submitted vouchers for his expenses, which were reviewed and
approved and for which payment has been made. After his 1990 move to
Sitka, the agency questioned a number of items on his vouchers related to
that move and that investigation led to the review of the 1988 move to
Coeur D'Alene and the questions presented in your letter.

You ask (1) whether a residence claimed as temporary quarters was in fact
permanent, in which case Mr. Franzel should not have been paid TQSE for
the time he resided there, and (2) whether Mr. Franzel is entitled to
reimbursement for certain expenses associated with the sale of his
Petersburg residence. Each of these issues is discussed separately.

TQSE

The Federal Travel Regulations (FTR) in effect at the time in question
provide:

[T]he occupancy of temporary quarters that
eventually become the employee's permanent
residence shall not prevent payment of the
temporary quarters allowance if, in the agency's
judgment, the employee shows satisfactorily that
the quarters occupied were intended initially to
be only temporary. In making this determination,
the agency should consider factors such as: the
duration of the lease, movement of household
effects into the quarters, type of quarters,
expressions of intent, attempts to secure a
permanent dwelling, and the length of time the
employee occupies the quarters.[1]

This regulation places on agency officials the initial responsibility to
use their judgment to determine whether quarters are temporary or
permanent. Accordingly, our review of such determinations is limited to
whether the agency's final decision is an abuse of discretion.

Our cases do not offer a bright-line test to distinguish temporary from
permanent quarters. Rather, our cases emphasize the importance of
applying the facts of each case to the criteria stated above.[2]

In Mr. Franzel's case, the record does not point to an obvious
conclusion. As you note, Mr. Franzel had the Empire Avenue address
printed on his personalized bank checks and used that address on his
driver's license, vehicle registration, renter's insurance and voter
registration. However, Mr. Franzel notes that he signed a month-to-month
lease because the house was listed for sale and asserts that he left over
half of his household goods unpacked in the residence. He further
alleges that he made a determined effort to locate suitable permanent
quarters, looking at over 40 houses in his first 90 days at Coeur
D'Alene, and that he discussed with Budget and Finance personnel his
intent to find other quarters.

As we noted, the initial determination regarding the characterization of
an employee's quarters is the agency's to make, and given the facts
supporting either determination, we could not say the agency's initial
determination that Mr. Franzel's quarters were temporary was erroneous.
Further, we do not believe the record supports reversing that
determination now, some five years after the fact. Accordingly, the
agency's initial determination should be left undisturbed.

You also ask, if the quarters are temporary, whether you may recover
payments approved for some specific items improperly claimed on Mr.
Franzel's TQSE voucher. As an example, the agency report states that Mr.
Franzel claimed approximately $399.20 in non-food items such as diapers
on his voucher. Mr. Franzel does not dispute this allegation. We would
not object to the agency recovering those payments based on this
estimate.

REAL ESTATE EXPENSES

According to your letter, Mr. Franzel entered into a sales agreement with
the purchaser of his Petersburg, Alaska residence in which Mr. Franzel
agreed to pay for title insurance and an As Built Survey, leaving the
purchaser responsible for all other closing costs. Subsequently, Mr.
Franzel submitted a voucher claiming the following expenses associated
with the sale of that residence: Power of Attorney ($10), Recording Fee
($15.00), Earnest Money Agreement ($52.50), and Appraisal ($393.75).

Regarding the appraisal fee, you state that Mr. Franzel incurred this fee
before he was notified of his transfer. Mr. Franzel states he asked
permission to have the house appraised as soon as he received the job
offer, which the record shows was November 24, 1987. (Exhibit 3, Tab 3,
application for relocation benefits.) The record shows that the
appraisal was made in November 1987, but does not give the exact date.
(Exhibit 6, p. 24). However, a check was issued by Mr. Franzel's spouse
on November 24, for payment of the appraisal service. (Exhibit 2, p.
13).

Absent evidence to the contrary, we have no reason to dispute Mr.
Franzel's claim. Payment was made on the date of official notification,
and there exists the possibility that Mr. Franzel received verbal
notification prior to the November 24 date. We have held that verbal
notification of selection for a position may constitute a clear intention
to transfer an employee. See James K. Payne, 68 Comp.Gen. 456 (1989).

Mr. Franzel asserts that he incurred the expense for the power of
attorney to allow a friend to act on his behalf at the settlement in
Petersburg because he had already moved out of the area. (Exhibit 6,
p.7). This expense is reimbursable. Daniel M. Hartnett, B-185800, Apr.
14, 1976. Further, the $15 recording fee appears related to the issuance
of the Power of Attorney, and of duly recording it. Therefore, the
recording fee is likewise reimbursable.

Mr. Franzel and the appraiser state that because there are no real estate
agents in Petersburg, buyers and sellers negotiate their own agreements.
Where there is no local custom regarding the allocation of specific costs
associated with a real estate transaction, the item may be reimbursed if
the item is otherwise reimbursable and the employee entered into a bona
fide agreement for payment. Edward M. Weglarz, B-236362, Nov. 9, 1989;
Alvin A. West, B-194668, Sept. 17, 1979.

In this case, Mr. Franzel negotiated with his buyer for the buyer to pay
all closing costs except for the title insurance and As Built Survey.
However, the cost for the earnest money agreement is not included on the
settlement sheet as a closing cost. In fact, it is normally furnished by
a real estate agent, and represents the contract of sale. Thus, this cost
is personal to the seller, and may be paid if it is customarily paid by
the seller in the area.

We trust that this is responsive to your inquiry, and we are returning
your Report of Investigation on Mr. Franzel.

1. FTR para. 2-5.2(3)(c), Supp. 10, Mar. 13, 1984. The quoted passage was in effect at the time of Mr. Franzel's relocation. This provision remains in the FTR in substantially the same form at 41 C.F.R. Sec. 302-5.2(3)(c) (1993).

2. See David M. Shannon, B-230746, Feb. 17, 1989; Michael P. Callahan, B-246479, June 9, 1992; Carl A. Zulick, 67 Comp. Gen. 585 (1988); Robert D. Hawks, B-205057, Feb. 24, 1982; Allan L. Franklin, B-222136, Sep. 19, 1986; Jerrold Cooley, 68 Comp.Gen. 554 (1989) and Joseph F. Heavey, B-215773, Dec. 3, 1984.