B-233734, May 30, 1989, Office of General Counsel

B-233734, May 30, 1989, Office of General Counsel

APPROPRIATIONS/FINANCIAL MANAGEMENT - Claims by Government - Training expenses - Debt collection - Waiver - GAO authority CIVILIAN PERSONNEL - Compensation - Training expenses - Reimbursement - Breach of service agreements DIGEST: We concur with the determination of the Internal Revenue Service (IRS) to seek repayment of training expenses where the employee resigned after 11 months of a 33-month service agreement. There is no indication in the record that the IRS acted in an arbitrary or capricious manner when it denied the employee's request for waiver of training expenses under the provisions of 5 U.S.C. Sec. 4108(c) (1982). Furthermore, we cannot accept the argument that the IRS breached an "agreement" to utilize the employee's skills and that such actions prevent collection of training expenses.

Joseph V. Kaplan

Attorney at Law:

This is in response to your letter of November 11, 1988, on behalf of Dr. Leo J. Campbell. You have appealed the denial by our Claims Group of Dr. Campbell's request for waiver of repayment of training expenses under the provisions of 5 U.S.C. Sec. 4108 (1982). /1/ For the reasons stated below, we see no basis for overturning this ruling.

Dr. Campbell was formerly employed by the Internal Revenue Service (IRS), and he received graduate-level training in artificial intelligence over a period of 11 months at government expense. Dr. Campbell signed an agreement to remain in government service for 33 months; however, he left the agency after 11 months and took a position in the private sector. The IRS has refused Dr. Campbell's request for waiver of repayment of his training expenses under the provisions of 5 U.S.C. Sec. 4108(c) (1982) and seeks repayment of a portion of his training expenses in the amount of $38,123.99.

Under the provisions of 5 U.S.C. Sec. 4108(c) and 5 C.F.R. Sec. 410.509 (1988), the employing agency has the discretionary authority to waive repayment of the training expenses. The IRS has refused to do so, and we will not overturn that determination unless the agency action is arbitrary or capricious or otherwise in violation of the law. B-174990, Mar. 14, 1972.

We have examined the record and fail to see where the agency acted in an arbitrary or capricious manner. As regards the amount Dr. Campbell must repay, we note that the IRS computed the cost of the training and seeks payment of a percentage of expenses based on the proportion of the service agreement not completed. See 5 C.F.R. Sec. 410.509 (a)(1) (1988).

We have also considered your argument that the agency breached the service agreement by failing to utilize Dr. Campbell's skills when he returned from training. We note that the report from the IRS disagrees with this assertion and states that significant use was made of Dr. Campbell's training in artificial intelligence after he returned from training. Moreover, we have held that a service agreement signed in connection with training at a non-government facility is not an employment agreement or personal services contract which controls the terms and conditions of employment. B-174990, supra. Therefore, we find no basis to relieve Dr. Campbell of his liability under the training agreement because of the actions of the IRS with regard to his duties or assignments following his training.