B-162265 (1), SEP. 21, 1970

B-162265 (1), SEP. 21, 1970

TRAINING PROGRAMS - SERVICE AGREEMENTS - EMPLOYEE LIABILITY ON TRANSFER FORMAL DECISION TO OFFICE OF MANAGEMENT AND BUDGET ADVISING THAT AN EMPLOYEE WHO TRANSFERS TO ANOTHER AGENCY BEFORE COMPLETING THE REQUIRED SERVICE AGREEMENT AFTER TRAINING AT GOVERNMENT EXPENSE IN A NON GOVERNMENT FACILITY MAY NOT BE EXCUSED FROM LIABILITY FOR REPAYMENT UNDER 5 U.S.C. 4108(B) WHICH MERELY REQUIRES THAT THE EMPLOYEE BE NOTIFIED OF HIS LIABILITY IN CASE OF TRANSFER SINCE RELIEF MAY ONLY BE ACCOMPLISHED UNDER THE WAIVER PROVISIONS IN SUBSECTION 4108(C). HOWEVER, IT IS SUGGESTED THAT CONSIDERATION SHOULD BE GIVEN TO AN AMENDMENT TO THE STATUTE WHICH WOULD REQUIRE THAT AN EMPLOYEE AGREE ONLY TO REMAIN IN GOVERNMENT SERVICE FOR THE REQUIRED PERIOD RATHER THAN IN THE SERVICE OF A PARTICULAR AGENCY.

TO MR. SHULTZ:

TO MR. SHULTZ:

THIS REFERS TO RECENT CORRESPONDENCE BETWEEN MEMBERS OF YOUR STAFF AND OUR OFFICE CONCERNING THE SUBJECT OF CONTINUED SERVICE AGREEMENTS EXECUTED UNDER THE TRAINING PROVISIONS OF 5 U.S.C. 4108. THE PURPOSE OF THIS LETTER IS TO EXAMINE THE GOVERNING STATUTE AND TO DETERMINE THE NATURE OF THE LEGAL REQUIREMENTS IMPOSED THEREBY.

SECTION 4108 OF TITLE 5, U.S.C. PROVIDES:

"(A) AN EMPLOYEE SELECTED FOR TRAINING BY, IN, OR THROUGH A NON GOVERNMENT FACILITY UNDER THIS CHAPTER SHALL AGREE IN WRITING WITH THE GOVERNMENT BEFORE ASSIGNMENT TO TRAINING THAT HE WILL--

"(1) CONTINUE IN THE SERVICE OF HIS AGENCY AFTER THE END OF THE TRAINING PERIOD FOR A PERIOD AT LEAST EQUAL TO THREE TIMES THE LENGTH OF THE TRAINING PERIOD UNLESS HE IS INVOLUNTARILY SEPARATED FROM THE SERVICE OF HIS AGENCY; AND

"(2) PAY TO THE GOVERNMENT THE AMOUNT OF THE ADDITIONAL EXPENSES INCURRED BY THE GOVERNMENT IN CONNECTION WITH HIS TRAINING IF HE IS VOLUNTARILY SEPARATED FROM THE SERVICE OF HIS AGENCY BEFORE THE END OF THE PERIOD FOR WHICH HE HAS AGREED TO CONTINUE IN THE SERVICE OF HIS AGENCY.

"(B) THE PAYMENT AGREED TO UNDER SUBSECTION (A)(2) OF THIS SECTION MAY NOT BE REQUIRED OF AN EMPLOYEE WHO LEAVES THE SERVICE OF HIS AGENCY TO ENTER INTO THE SERVICE OF ANOTHER AGENCY IN ANY BRANCH OF THE GOVERNMENT UNLESS THE HEAD OF THE AGENCY THAT AUTHORIZED THE TRAINING NOTIFIES THE EMPLOYEE BEFORE THE EFFECTIVE DATE OF HIS ENTRANCE INTO THE SERVICE OF THE OTHER AGENCY THAT PAYMENT WILL BE REQUIRED UNDER THIS SECTION.

"(C) IF AN EMPLOYEE, EXCEPT AN EMPLOYEE RELIEVED OF LIABILITY UNDER SUBSECTION (B) OF THIS SECTION OR SECTION 4102(B) OF THIS TITLE, FAILS TO FULFILL HIS AGREEMENT TO PAY TO THE GOVERNMENT THE ADDITIONAL EXPENSES INCURRED BY THE GOVERNMENT IN CONNECTION WITH HIS TRAINING, A SUM EQUAL TO THE AMOUNT OF THE ADDITIONAL EXPENSES OF TRAINING IS RECOVERABLE BY THE GOVERNMENT FROM THE EMPLOYEE OR HIS ESTATE BY-

"(1) SETOFF AGAINST ACCRUED PAY, COMPENSATION, AMOUNT OF RETIREMENT CREDIT, OR OTHER AMOUNT DUE THE EMPLOYEE FROM THE GOVERNMENT; AND

"(2) SUCH OTHER METHOD AS IS PROVIDED BY LAW FOR THE RECOVERY OF AMOUNTS OWING TO THE GOVERNMENT.

THE HEAD OF THE AGENCY CONCERNED, UNDER THE REGULATIONS PRESCRIBED UNDER SECTION 4118 OF THIS TITLE, MAY WAIVE IN WHOLE OR IN PART A RIGHT OF RECOVERY UNDER THIS SUBSECTION, IF IT IS SHOWN THAT THE RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE OR AGAINST THE PUBLIC INTEREST."

SUBSECTION (A), ABOVE, CLEARLY CONTEMPLATES THAT THE EMPLOYEE WILL BE HELD LIABLE FOR THE COSTS OF HIS TRAINING IN A NON-GOVERNMENT FACILITY IF HE FAILS TO COMPLETE THE AGREED-UPON PERIOD OF SERVICE WITH HIS AGENCY. THE LANGUAGE OF SUBSECTION (A), WHICH IS DERIVED FROM SECTION 11(A) OF H. R. 6001, 85TH CONGRESS, IS TO BE DISTINGUISHED FROM THAT APPEARING IN SECTION 6 OF S. 385, 85TH CONGRESS, AS PASSED BY THE SENATE ON APRIL 12, 1957. SECTION 6 OF S. 385, WHICH BILL WAS REJECTED BY THE HOUSE, PROVIDED ONLY THAT THE EMPLOYEE MUST AGREE TO REMAIN IN THE GOVERNMENT SERVICE FOLLOWING HIS TRAINING ASSIGNMENT. THUS, THE CONGRESS, HAVING CONSIDERED THE ALTERNATIVE AGREEMENT PROVISIONS, CHOSE THE MORE RESTRICTIVE OF THE TWO.

WITH RESPECT TO SUBSECTION 4108(B), WHICH PROVIDES THAT AN EMPLOYEE SHALL NOT BE REQUIRED TO MAKE REFUND WHEN HE TRANSFERS TO ANOTHER GOVERNMENT AGENCY UNLESS HE IS NOTIFIED OF SUCH LIABILITY PRIOR TO HIS TRANSFER, WE DO NOT VIEW SUCH PROVISION AS MANIFESTING A LEGISLATIVE INTENT TO EXCUSE REPAYMENT OF TRAINING EXPENSES IN CASES WHERE THE EMPLOYEE TRANSFERS TO ANOTHER GOVERNMENT AGENCY BEFORE COMPLETING HIS PERIOD OF OBLIGATED SERVICE. RATHER, WE REGARD SUBSECTION (B) AS BEING A NOTICE PROVISION. COMPARE THE LANGUAGE OF SECTION 11(B) OF H. R. 1989, 85TH CONGRESS, WHICH WOULD HAVE PROVIDED FOR RELIEVING AN EMPLOYEE OF LIABILITY FOR REFUND OF TRAINING EXPENSES UPON APPROVAL BY THE CIVIL SERVICE COMMISSION OF HIS TRANSFER TO ANOTHER GOVERNMENT AGENCY AS BEING IN THE BEST INTEREST OF THE GOVERNMENT.

WE RECOGNIZE THAT UNDER SUBSECTION (B) RELIEF OF AN EMPLOYEE FROM LIABILITY FOR THE COSTS OF HIS TRAINING COULD OCCUR ON TRANSFER SIMPLY BY HIS NOT BEING NOTIFIED OF SUCH LIABILITY PRIOR TO HIS TRANSFER. INDICATED ABOVE, HOWEVER, WE DO NOT BELIEVE THAT THE NOTICE REQUIREMENT OF SUBSECTION (B) WAS INTENDED TO SERVE SUCH PURPOSE. RATHER, IT IS OUR OPINION THAT AN EMPLOYEE WHO TRANSFERS TO ANOTHER GOVERNMENT AGENCY PRIOR TO COMPLETING HIS PERIOD OF OBLIGATED SERVICE SHOULD BE RELIEVED OF LIABILITY FOR REPAYMENT OF TRAINING EXPENSES ONLY WHEN THE CIRCUMSTANCES OF HIS CASE FALL WITHIN THE CONDITIONS FOR WAIVER SPECIFIED IN SUBSECTION 4108(C), ABOVE.

WE BELIEVE HOWEVER, THAT CONSIDERATION SHOULD BE GIVEN TO DETERMINING WHETHER THE INTERESTS OF THE GOVERNMENT WOULD BE BETTER SERVED IF THE STATUTE WERE AMENDED TO REQUIRE ONLY THAT AN EMPLOYEE AGREE TO REMAIN IN THE GOVERNMENT SERVICE (RATHER THAN AGENCY SERVICE) FOR A MINIMUM PERIOD OF TIME AFTER HIS TRAINING ASSIGNMENT.