B-161083, JULY 17, 1967, 47 COMP. GEN. 56

B-161083, JULY 17, 1967, 47 COMP. GEN. 56

OFFICERS AND EMPLOYEES - SEVERANCE PAY - RESIGNATION THE PAYMENT OF SEVERANCE PAY TO EMPLOYEES WHO RESIGNED BECAUSE THEY WERE UNABLE TO ACCEPT REASSIGNMENT TO OTHER AREAS UPON AGENCY REORGANIZATION OF REGIONAL OFFICES WHICH RESULTED IN AN EXCESS OF PERSONNEL IN COMPETITIVE POSITIONS NEED NOT BE RECOVERED IF THE PRIMARY PURPOSE OF THE PROPOSED TRANSFERS WAS TO MEET A RESPONSIBILITY TO THE EMPLOYEES RATHER THAN TO THE AGENCY, AND ADVICE TO THE EMPLOYEES OF THE PROPOSED REDUCTION IN FORCE, ENCOURAGING THEM TO SEEK POSITIONS WITH OTHER GOVERNMENT AGENCIES, TOGETHER WITH THE EFFORT MADE BY THE EMPLOYING AGENCY TO SEEK POSITIONS IN OTHER AREAS IN THE REGION FOR THE EMPLOYEES, EVIDENCES ADMINISTRATIVE INTENT TO MAKE JOB OFFERS TO THE EMPLOYEES RATHER THAN TO REASSIGN THEM WITHOUT THE OPTION TO REFUSE REASSIGNMENT, AND THAT THE SEPARATIONS WERE INVOLUNTARY AND NOT REMOVAL FOR CAUSE.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, JULY 17, 1967:

THIS IS IN REPLY TO YOUR LETTER OF MARCH 14, 1967, CONCERNING THE ENTITLEMENT TO SEVERANCE PAY OF TWO EMPLOYEES OF THE FEDERAL AVIATION AGENCY (FAA), MR. DAVID YOUNG AND MR. NEIL A. WADDELL.

THESE EMPLOYEES WERE BOTH GS-856-9, ELECTRONIC INSTALLATION TECHNICIANS (EIT), STATIONED IN THE FAA REGIONAL OFFICE IN FORT WORTH IN SEPTEMBER 1965. AT THIS TIME THE SOUTHWEST REGION OF THE AGENCY WAS BEING EXTENSIVELY REORGANIZED WHICH RESULTED IN THE ESTABLISHMENT OF THREE AREA OFFICES IN FORT WORTH, TEXAS; HOUSTON, TEXAS; AND ALBUQUERQUE, NEW MEXICO.

WITH THE COMPLETION OF CERTAIN PROGRAMS IT APPEARED THAT THERE WAS A SURPLUS OF ELECTRONIC TECHNICIANS IN THE SOUTHWEST REGION. A NUMBER OF THESE TECHNICIANS WERE CALLED INTO THE REGIONAL OFFICE IN SEPTEMBER 1965 AND TOLD THAT THERE MIGHT HAVE TO BE SOME PERSONNEL CUTBACKS ALTHOUGH THE AGENCY WAS EXPLORING VARIOUS METHODS BY WHICH THE EIT MIGHT BE RETAINED. IN MAY 1966 A NUMBER OF THESE PERSONNEL WERE TOLD THAT DUE TO A REALIGNMENT OF THE ACTIVITIES OF THE REGION AND THE READJUSTMENT OF PERSONNEL IMBALANCES AT FIELD FACILITIES THE STAFFING OF ADDITIONAL POSITIONS WAS AUTHORIZED. THE EMPLOYEES IN QUESTION WERE ADVISED THAT THE AGENCY PLANNED TO REASSIGN SURPLUS TECHNICIANS TO THESE POSITIONS AND WERE ASKED TO STATE THEIR PREFERENCE.

FOLLOWING A MEETING BETWEEN REGION AND AREA OFFICERS AND THE TECHNICIANS ON JUNE 13, 1966, MR. YOUNG WAS ADVISED ON JUNE 17, 1966, THAT HE WAS BEING REASSIGNED FROM HIS PRESENT POSITION IN FORT WORTH TO A POSITION AS GS-856-9, ELECTRONIC INSTALLATION TECHNICIAN, AIRWAYS FACILITIES BRANCH, ALBUQUERQUE, NEW MEXICO, EFFECTIVE JULY 17, 1966. MR. YOUNG RECEIVED THIS NOTICE ON JUNE 24, 1966, AND ON JULY 5, 1966, ADVISED THE CHIEF OF HIS DIVISION THAT HE DID NOT WISH TO ACCEPT THE ASSIGNMENT, THAT HE UNDERSTOOD HIS LAST DAY OF DUTY WOULD BE JULY 15, 1966, AND THAT HE WOULD BE ENTITLED TO $1,589.60 SEVERANCE PAY.

MR. WADDELL WAS ADVISED ON THE SAME DAY (JUNE 17, 1966) THAT HE WAS BEING ASSIGNED FROM HIS PRESENT POSITION IN FORT WORTH TO THE POSITION OF GS-856 -9, ELECTRONICS MAINTENANCE TECHNICIAN, AIRWAY FACILITIES SECTION, FARMINGTON, NEW MEXICO, EFFECTIVE JULY 17, 1966. MR. WADDELL RECEIVED THIS NOTICE ON JUNE 30, 1966, AND AT THAT TIME WROTE ON THE BOTTOM OF THE NOTICE THAT HE WOULD BE UNABLE TO ACCEPT REASSIGNMENT DUE TO PERSONAL PROBLEMS. HE LATER ADVISED HIS DIVISION CHIEF TO THE SAME EFFECT STATING THAT HE UNDERSTOOD HIS LAST DAY OF DUTY WOULD BE JULY 15, 1966, AND THAT HE WOULD BE ENTITLED TO $950.40 SEVERANCE PAY.

THE TWO EMPLOYEES WERE GIVEN SEVERANCE PAY UNDER SECTION 550.706 (A) OF THE CIVIL SERVICE COMMISSION'S REGULATIONS AND THE QUESTION YOU NOW RAISE IS WHETHER UNDER OUR DECISION B-159029, JUNE 17, 1966, THE AGENCY IS REQUIRED TO MAKE EFFORTS TO COLLECT FROM THE EMPLOYEES THE AMOUNTS OF SEVERANCE PAY WHICH HAVE BEEN PAID TO THEM.

IN A RECENT LETTER THE CIVIL SERVICE COMMISSION EXPRESSED ITS VIEWS ON THE TYPES OF ACTIONS THAT ARE AVAILABLE TO AN AGENCY IN TRANSFERRING ITS EMPLOYEES BETWEEN POSITIONS AND THE EFFECT OF SUCH ACTION ON ENTITLEMENT TO SEVERANCE PAY. THE COMMISSION'S LETTER READS, IN PERTINENT PART, AS FOLLOWS:

"WE BELIEVE IT PERTINENT TO POINT OUT THAT MANAGEMENT OF AN AGENCY MAY HAVE A NUMBER OF OPTIONS IN THE WAY IT GOES ABOUT PLACING ITS EMPLOYEES WITHIN THE AGENCY:

"1. IT MAY DECIDE TO REASSIGN AN EMPLOYEE FROM ONE COMMUTING AREA TO ANOTHER. THIS DECISION MAY OR MAY NOT OCCUR BECAUSE OF A TRANSFER OF FUNCTION SITUATION OR A REDUCTION-IN-FORCE SITUATION (THAT IS, AN EXCESS OF PERSONNEL IN A COMPETITIVE LEVEL);

"2. AS A RESULT OF A REDUCTION-IN-FORCE SITUATION, IT MAY OFFER AN EMPLOYEE A POSITION IN A DIFFERENT COMMUTING AREA BUT NOT REQUIRE THE EMPLOYEE TO TAKE IT.

"3. AS A RESULT OF A TRANSFER OF FUNCTION SITUATION, IT MUST OFFER AN EMPLOYEE THE OPPORTUNITY TO TRANSFER WITH HIS POSITION TO THE NEW COMMUTING AREA.

"THE DECISION TO CARRY OUT A REDUCTION IN FORCE OR A TRANSFER OF FUNCTION IS RECOGNIZED AS A MANAGEMENT ORGANIZATIONAL DECISION, AND THE COMMISSION FEELS THAT THE AGENCY SHOULD HAVE SOME PREROGATIVE IN THE PROCEDURE TO FOLLOW WHICH WILL BEST MEET THE NEEDS OF THE AGENCY, YET PERMIT THE AGENCY TO MEET THE RESPONSIBILITY IT OWES ITS EMPLOYEES.

"WHEN AN AGENCY MUST CARRY OUT A REDUCTION IN FORCE OBVIOUSLY SOME EMPLOYEES ARE GOING TO SUFFER A SUBSTANTIAL ECONOMIC SETBACK. FOR THIS REASON, THE AGENCY MAY WISH TO TRY TO PLACE EMPLOYEES IN VACANT POSITIONS THROUGH TRANSFER OF FUNCTION PROCEDURE. IT IS NOT SURPRISING THAT A SIGNIFICANT NUMBER OF EMPLOYEES WILL PREFER NOT TO ACCOMPANY THEIR POSITION IN A TRANSFER OF FUNCTION. HOWEVER, THE EMPLOYEE'S FAILURE TO ACCOMPANY HIS POSITION IN A TRANSFER OF FUNCTION DOES NOT AUTOMATICALLY TERMINATE HIS SERVICES NOR MAKE ANY RESULTING SEPARATION VOLUNTARY OR DISCIPLINARY. IT MAY BE THAT ENOUGH EMPLOYEES WILL -VOLUNTEER- TO ACCEPT A TRANSFER OF FUNCTION SO THAT NO SEPARATIONS WILL BE NECESSARY. IF SOME EMPLOYEES MUST BE SEPARATED, THE ACTION WILL BE CLASSIFIED AS -SEPARATION- -DECLINED RELOCATION-, BUT NO STIGMA OF DISCIPLINE ATTACHES TO THE SEPARATION.

"IT SHOULD ALSO BE NOTED THAT AN ACTION MAY BE NONDISCIPLINARY AND STILL BE ADVERSE TO THE EMPLOYEE. THEREFORE, ADVERSE ACTION PROCEDURES MAY BE NECESSARY TO ACCOMPLISH A SEPARATION FOR FAILURE TO ACCOMPANY AN ACTIVITY IN A TRANSFER OF FUNCTION EVEN THOUGH NO ELEMENT OF DISCIPLINE IS PRESENT.

"IF THE AGENCY IS INVOLVED IN A TRANSFER OF FUNCTION SITUATION IT MUST EFFECT ITS ACTION IN ACCORDANCE WITH SECTION 12 OF THE VETERANS' PREFERENCE ACT AND OUR REGULATIONS. THE VETERANS' PREFERENCE ACT AUTHORIZES THE COMMISSION TO ISSUE AND ENFORCE REGULATIONS TO CARRY OUT THE PROVISIONS, PURPOSE, AND INTENT OF THE ACT. SECTION 12 OF THE ACT LAYS DOWN THE GENERAL PRINCIPLES BUT LEAVES TO COMMISSION REGULATIONS THE DETAILS OF THESE PRINCIPLES SO THE RESULT WILL BE ADMINISTRATIVELY WORKABLE. IN VIEW OF THIS, THE COMMISSION REQUIRES THAT IN A TRANSFER-OF- FUNCTION SITUATION THE EMPLOYEE MUST BE GIVEN AN OPPORTUNITY TO ACCOMPANY HIS POSITION, AND ONLY AFTER DECLINING THE OFFER CAN THE RECEIVING AGENCY FILL THE POSITION FROM ANOTHER SOURCE.

"THEREFORE, WHEN AN EMPLOYEE DECLINES TO ACCOMPANY HIS ACTIVITY IN A TRANSFER OF FUNCTION HE IS DECLINING AN OFFER. HIS SEPARATION IS NOT CONSIDERED A DISCIPLINARY ACTION, AND WOULD NOT BE CONSIDERED AS SEPARATION BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. IT MUST BE EFFECTED UNDER THE ADVERSE ACTION PROCEDURES SINCE IT IS NOT A SEPARATION BY REDUCTION IN FORCE, BUT THIS DOES NOT CHANGE THE CHARACTER OF THE SEPARATION FROM THE FACT THAT IT RESULTED FROM THE DECLINATION OF AN OFFER, AND NOT FROM A REFUSAL TO GO.

"ON THE OTHER HAND, WHEN AN AGENCY FINDS IT NECESSARY TO ASSIGN AN EMPLOYEE TO A POSITION IN A DIFFERENT GEOGRAPHICAL LOCATION AND THE EMPLOYEE REFUSES TO ACCEPT THE NEW ASSIGNMENT, HIS SERVICE MAY BE TERMINATED. THIS IS CONSIDERED A DISCIPLINARY ACTION SINCE THE EMPLOYEE IS NOT DECLINING AN OFFER BUT IS REFUSING TO FOLLOW AN ORDER; IT IS CONSIDERED EQUIVALENT TO INSUBORDINATION. THEREFORE, THE EMPLOYEE IS SEPARATED BY REMOVAL FOR CAUSE UNDER THE GENERAL HEADING OF -MISCONDUCT, DELINQUENCY, OR INEFFICIENCY-.

"IN VIEW OF THIS, WE FEEL THAT THERE IS NO INCONSISTENCY IN THE REGULATIONS GOVERNING SEVERANCE PAY WHICH PROVIDES THAT WHEN AN EMPLOYEE DECLINES TO ACCOMPANY HIS POSITION WHEN IT IS MOVED TO ANOTHER COMMUTING AREA IN A TRANSFER OF FUNCTION, HIS SEPARATION IS DEEMED TO BE AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.'

THE LANGUAGE OF THE NOTICES TO MR. YOUNG AND MR. WADDELL WAS COUCHED IN TERMS OF A REASSIGNMENT, THE FIRST OPTION DESCRIBED IN THE COMMISSION'S LETTER. THE DESCRIPTION OF THE ACTION TAKEN ON THEIR RESPECTIVE STANDARD FORM 50'S FOLLOWING THEIR REFUSAL TO ACCEPT THE REASSIGNMENT IS CONSISTENT THEREWITH AS IT STATES "RESIGNATION (DECLINED ASSIGNMENT * * *).'

IT WOULD APPEAR HOWEVER THAT IN VIEW OF THE AGENCY'S CONSIDERABLE EFFORT TO KEEP THE PERSONNEL ADVISED OF THE PROPOSED REDUCTION, TO ENCOURAGE THEM TO SEEK POSITIONS WITH OTHER GOVERNMENT AGENCIES AND TO SEEK POSITIONS FOR THEM IN OTHER AREAS IN THE REGION THAT IT WAS INTENDED TO MAKE JOB OFFERS RATHER THAN A REASSIGNMENT WITHOUT ANY OPTION OF REFUSAL. IF THE PRIMARY PURPOSE OF THE PROPOSED TRANSFERS WAS TO MEET A RESPONSIBILITY TO THE EMPLOYEES RATHER THAN TO MEET A NEED OF THE AGENCY THEN THE SO-CALLED REASSIGNMENT WAS MORE IN THE NATURE OF A JOB OFFER AND CAN BE DISTINGUISHED FROM THE AGENCY ACTION IN B-159029, INVOLVING REFUSAL TO ACCEPT A REASSIGNMENT ORDERED FOR THE GOOD OF THE SERVICE. SHOULD THE AGENCY REGARD ITS ACTIONS WITH RESPECT TO MESSRS. YOUNG AND WADDELL IN THIS LIGHT RECOVERY OF THE SEVERANCE PAY WHICH HAS BEEN PAID TO THESE EMPLOYEES IS NOT REQUIRED.