B-163726, SEPT. 10, 1968

B-163726, SEPT. 10, 1968

TO THOMAS E. SCHULZ:

WE REFER TO YOUR LETTER OF AUGUST 6, 1968, IN BEHALF OF MR. JAMES L. NELSON, REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 8, 1968, B- 163726, IN WHICH WE HELD THAT MR. NELSON WAS REQUIRED TO REFUND THE MONEY EXPENDED BY THE GOVERNMENT INCIDENT TO HIS TRANSFER FROM JUNEAU, ALASKA, TO PETERSBURG, ALASKA, AS AN EMPLOYEE OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE.

SINCE THE PERTINENT FACTS OF MR. NELSON'S CASE WERE SET FORTH IN OUR DECISION OF MAY 8, 1968, WE SHALL NOT REPEAT THEM HERE. YOUR LETTER RAISES TWO ISSUES, THE FIRST OF WHICH YOU PRESENT AS FOLLOWS (QUOTING FROM YOUR LETTER):

"* * * FIRST OF ALL, I BELIEVE IT IS SUBSTANTIALLY WITHOUT CONFLICT THAT MR. NELSON WAS RECRUITED IN ANCHORAGE FOR THE POSITION IN JUNEAU AND WAS GIVEN TO UNDERSTAND BY THE PERSON WHO RECRUITED HIM THAT HE WOULD REMAIN IN JUNEAU. IT WAS SPECIFICALLY UNDERSTOOD BY THE PARTIES THEN CONCERNED WITH THIS SITUATION THAT HE WAS PRIMARILY INTERESTED IN RESIDING IN JUNEAU AND MAKING HIS FAMILY HOME HERE. IN CONSIDERATION OF THE ORIGINAL HIRING AGREEMENT, MR. NELSON DID EXECUTE AN AGREEMENT TO REMAIN IN THE EMPLOY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE FOR A MINIMUM PERIOD OF TWELVE MONTHS IN CONSIDERATION OF THE GOVERNMENT PAYING HIS TRANSPORTATION FROM ANCHORAGE TO JUNEAU.

"WE HAVE NO QUARREL WITH THAT ORIGINAL AGREEMENT, INASMUCH AS IT WAS AS MUCH FOR MR. NELSON'S BENEFIT AS IT WAS FOR THE UNITED STATES GOVERNMENT. HOWEVER, HIS SUBSEQUENT TRANSFER TO PETERSBURG WAS ENTIRELY FOR THE BENEFIT OF THE UNITED STATES GOVERNMENT. IT WOULD SEEM TO ME, IN ADDITION, THAT IF THERE IS AUTHORITY FOR ADMINISTRATORS TO REQUIRE CONTRACTS OR AGREEMENTS OVER AND ABOVE THE LEGAL REQUIREMENTS OTHERWISE SET FORTH, PARTICULARLY AS REGARDS AGREEMENTS TO REMAIN IN THE EMPLOY OF THE GOVERNMENT FOR A MINIMUM PERIOD OF TIME, THEN EQUAL WEIGHT SHOULD BE GIVEN TO OTHER ADMINISTRATION COMMITMENTS TO MAINTAIN A PERSON IN EMPLOYMENT AT A GIVEN LOCATION. THE POINT BEING THAT THE TRANSFER TO PETERSBURG, BESIDES BEING FOR THE BENEFIT OF THE UNITED STATES GOVERNMENT, WAS ALSO IN CONTRAVENTION OF THE AGREEMENT MADE BY THE INDIVIDUAL WHO HIRED MR. NELSON IN THE FIRST PLACE. * * *"

WE DO NOT DISPUTE THE FACT THAT MR. NELSON ORIGINALLY WAS RECRUITED FOR DUTY AT JUNEAU, ALASKA. HOWEVER, THE RECORD CONTAINS NO EVIDENCE OF AN AGREEMENT ON THE PART OF THE GOVERNMENT NOT TO TRANSFER MR. NELSON FROM THAT PARTICULAR LOCATION. ON THE CONTRARY, THE ADMINISTRATIVE REPORT ON MR. NELSON'S CASE INCLUDES THE FOLLOWING STATEMENT FROM MR. VINCENT N. OLSON, FOREST SUPERVISOR, JUNEAU, ALASKA: "TO MY KNOWLEDGE, NO COMMITTMENTS WERE MADE TO NELSON AT THE TIME OF HIRE THAT HE COULD EXPECT TO STAY IN JUNEAU ON A PERMANENT BASIS.'

THE RIGHT OF AN AGENCY TO TRANSFER AN EMPLOYEE FROM ONE GEOGRAPHICAL LOCATION TO ANOTHER IS INDISPENSABLE TO THE EFFICIENT AND EFFECTIVE TRANSACTION OF THE GOVERNMENT'S BUSINESS. WHILE THE PERSON WHO RECRUITED MR. NELSON FOR DUTY IN JUNEAU MAY HAVE MISLED HIM INTO BELIEVING THAT HE WOULD REMAIN INDEFINITELY IN THAT CITY, WE DOUBT THAT SUCH PERSON BY HIS STATEMENTS COULD HAVE EFFECTIVELY BARGAINED AWAY THE AGENCY'S RIGHT TO TRANSFER MR. NELSON WHERE THE EXIGENCIES OF THE SERVICE REQUIRED SUCH TRANSFER.

CONCERNING THE EMPLOYMENT AGREEMENT WHICH MR. NELSON WAS REQUIRED TO EXECUTE UPON HIS TRANSFER TO PETERSBURG, YOU STATE:

"WE BELIEVE THAT THE -ADMINISTRATIVE REQUIREMENT- FOR AN AGREEMENT TO EITHER REMAIN IN EMPLOY FOR ONE YEAR OR REIMBURSE THE FEDERAL GOVERNMENT FOR MOVING EXPENSES, WHICH IS APPARENTLY REQUIRED ONLY IN ALASKA, IS UNFAIR TO FEDERAL EMPLOYEES IN THE STATE OF ALASKA AND IMPOSES ON THEM BURDENS NOT ENCOUNTERED BY FEDERAL EMPLOYEES IN OTHER STATES, WHILE IT IS ALSO UNCLEAR AS TO WHETHER THIS REQUIREMENT IS IMPOSED ON FEDERAL EMPLOYEES IN OTHER AGENCIES OF THE FEDERAL GOVERNMENT IN ALASKA. HENCE, IT WOULD SEEM THAT MR. NELSON, AND PERSONS IN SIMILAR SITUATIONS, ARE BEING DISCRIMINATED AGAINST ON TWO COUNTS:

"1. MR. NELSON, AND PERSONS IN SIMILAR SITUATIONS, ARE BEING SUBJECTED TO REQUIREMENTS IN ADDITION TO THOSE OF DEPARTMENT OF AGRICULTURE EMPLOYEES IN OTHER STATES OF THE UNITED STATES, IN THAT THEY ARE REQUIRED TO EXECUTE THE EMPLOYMENT CONTRACT EVEN FOR INTRASTATE TRANSFERS;

"2. THIS REQUIREMENT IS APPARENTLY NOT REQUIRED OF EMPLOYEES IN OTHER DEPARTMENTS OF THE FEDERAL GOVERNMENT, EVEN IN ALASKA.'

SECTION 5724 (I) OF TITLE 5, U.S.C. PROVIDES 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.'

FOR PURPOSES OF THAT SECTION, THE TERM "CONTINENTAL UNITED STATES" MEANS THE 48 CONTIGUOUS STATES AND THE DISTRICT OF COLUMBIA. SEE 5 U.S.C. 5721 (3). THUS, SECTION 5724 (I) DOES NOT APPLY TO EMPLOYEES TRANSFERRED WITHIN OR BETWEEN THE STATES OF ALASKA AND HAWAII, BUT IT DOES APPLY TO EMPLOYEES TRANSFERRED WITHIN OR BETWEEN THE OTHER 48 STATES AND THE DISTRICT OF COLUMBIA. THEREFORE, BY REQUIRING MR. NELSON TO EXECUTE AN EMPLOYMENT AGREEMENT INCIDENT TO HIS TRANSFER TO PETERSBURG THE AGENCY DID NOT, AS YOU SUGGEST, SUBJECT MR. NELSON TO A REQUIREMENT NOT IMPOSED ON EMPLOYEES WHO ARE TRANSFERRED WITHIN THE OTHER STATES OF THIS COUNTRY. SEE ALSO SECTION 1.3C OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966.

WE HAVE NO INFORMATION AS TO WHETHER OR NOT OTHER FEDERAL AGENCIES LOCATED IN ALASKA REQUIRE THE EXECUTION OF EMPLOYMENT AGREEMENTS WHEN TRANSFERRING EMPLOYEES WITHIN THE STATE OF ALASKA. SUCH INFORMATION, HOWEVER, WOULD HAVE NO MATERIAL BEARING ON THE PRESENT CASE SINCE WE HAVE HELD THAT AGENCIES DO HAVE THE AUTHORITY TO REQUIRE THE EXECUTION OF EMPLOYMENT AGREEMENTS IN SUCH CIRCUMSTANCES AND MR. NELSON DID, IN FACT, EXECUTE SUCH AN AGREEMENT.

IN VIEW OF THE FOREGOING WE MUST AFFIRM OUR RULING THAT MR. NELSON IS BOUND BY THE PROVISIONS OF HIS AGREEMENT TO REFUND THE MONEY EXPENDED BY THE GOVERNMENT INCIDENT TO HIS TRANSFER TO PETERSBURG.