B-164605, AUG. 22, 1968

B-164605, AUG. 22, 1968

TO MR. WILLIAM RUDMAN:

WE REFER TO YOUR LETTER OF JULY 27, 1968, IN WHICH YOU REQUEST OUR CONSIDERATION OF THE DEMAND FOR REPAYMENT OF $1,049.35 MADE UPON YOU BY THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS, DEPARTMENT OF JUSTICE, TO REIMBURSE IT FOR RELOCATION EXPENSES ALLOWED YOU INCIDENT TO CHANGES OF OFFICIAL STATIONS BETWEEN BOSTON AND NEW YORK.

THE ALLOWANCES WERE PAID YOU BY THE BUREAU OF NARCOTICS, TREASURY DEPARTMENT, IN CONSIDERATION OF AGREEMENTS MADE BY YOU ON AUGUST 11 AND DECEMBER 26, 1967, TO SERVE WITH THE BUREAU OF NARCOTICS FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATES OF EACH TRANSFER OF STATION.

BY VIRTUE OF REORGANIZATION PLAN NO. 1 OF 1968, THE BUREAU OF NARCOTICS WAS CONSOLIDATED WITH THE BUREAU OF DRUG ABUSE CONTROL, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, AND BECAME THE NEWLY CREATED BUREAU OF NARCOTICS AND DANGEROUS DRUGS WHICH WAS PLACED UNDER THE DEPARTMENT OF JUSTICE.

SHORTLY THEREAFTER YOU RESIGNED FROM YOUR POSITION TO ACCEPT AN APPOINTMENT AS PROBATION OFFICER WITH THE UNITED STATES DISTRICT COURT IN BOSTON. YOU SAY THAT FOR PERSONAL REASONS YOU DID NOT CARE TO BE EMPLOYED BY THE NEWLY CREATED BUREAU, APPARENTLY DEEMING THE REORGANIZATION AS BEING A MATTER BEYOND YOUR CONTROL SO AS TO WARRANT BREACH OF THE AGREEMENTS TO SERVE WITH THE BUREAU OF NARCOTICS. YOU POINT OUT THAT YOUR EMPLOYMENT WITH THE COURT IS CONTINUED EMPLOYMENT WITH THE GOVERNMENT.

THE AGREEMENTS WERE REQUIRED OF YOU BY THE BUREAU OF NARCOTICS BECAUSE OF THE PROVISIONS OF 5 U.S.C. 5724 (I) WHICH IN PERTINENT PART READS AS FOLLOWS:

"/I) AN AGENCY MAY PAY TRAVEL AND TRANSPORTATION EXPENSES (INCLUDING STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS) AND OTHER RELOCATION ALLOWANCES UNDER THIS SECTION AND SECTIONS 5724A AND 5726 (C) OF THIS TITLE WHEN AN EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES ONLY AFTER THE EMPLOYEE AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE AGENCY CONCERNED. IF THE EMPLOYEE VIOLATES THE AGREEMENT, THE MONEY SPENT BY THE UNITED STATES FOR THE EXPENSES AND ALLOWANCES IS RECOVERABLE FROM THE EMPLOYEE AS A DEBT DUE THE UNITED STATES.'

IN OUR DECISION 31 COMP. GEN. 588, WE RULED RELATIVE TO AGREEMENTS SUCH AS THOSE REQUIRED BY 5 U.S.C. 5724 (I) THAT IT IS WITHIN THE DISCRETION OF A DEPARTMENT OR AGENCY TO REQUIRE BY THE EXPRESS TERMS OF THE AGREEMENT OF THE EMPLOYEE THAT THE SERVICE BE WITH THE PARTICULAR AGENCY OR AN ORGANIZATIONAL UNIT THEREOF. IN CONSONANCE WITH THAT RULING YOUR AGREEMENTS WERE TO SERVE WITH THE BUREAU OF NARCOTICS.

YOU WILL NOTE THAT THE PROVISIONS OF 5 U.S.C. 5724 (I) ARE THAT A JUSTIFICATION FOR TERMINATION OF THE AGREEMENT MUST NOT ONLY BE FOR REASONS BEYOND THE CONTROL OF THE EMPLOYEE BUT ALSO BE ACCEPTABLE TO THE AGENCY CONCERNED. WE UNDERSTAND THAT THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS DOES NOT CONSIDER THE REASONS ADVANCED BY YOU AS BEING BEYOND YOUR CONTROL OR ACCEPTABLE TO THE AGENCY.

SINCE THE STATUTE PLACES THE RESPONSIBILITY OF DETERMINING THE QUESTION OF ACCEPTABILITY WITH THE AGENCY, ITS DETERMINATION IN YOUR CASE IN THE EXERCISE OF ITS DISCRETION IS CONCLUSIVE UPON OUR OFFICE IN THE ABSENCE OF A FINDING THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS.

WE ARE AWARE OF NO FACTS STEMMING FROM THE REORGANIZATION THAT WOULD SO AFFECT YOUR EMPLOYMENT AS TO JUSTIFY YOUR RESIGNATION. THUS, WE MAY NOT PROPERLY SET ASIDE THE AGENCY'S DETERMINATION THAT YOUR BREACH OF THE AGREEMENTS WAS FOR REASONS NOT ACCEPTABLE TO THE BUREAU.