B-161209, MAY 29, 1967

B-161209, MAY 29, 1967

TO THE SECRETARY OF THE TREASURY:

THIS IS IN REPLY TO THE LETTER OF YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION OF APRIL 4, 1967, REQUESTING A DECISION OF OUR OFFICE AS TO ENTITLEMENT TO SEVERANCE PAY IN THE CASES OF TWO FORMER EMPLOYEES OF THE INTERNAL REVENUE SERVICE, MRS. MARIE HARRIS AND MRS. NORMA TUCKER.

MRS. HARRIS AND MRS. TUCKER WERE BOTH EMPLOYED IN THE REDDING (CALIFORNIA) OFFICE OF THE INTERNAL REVENUE SERVICE DURING 1965. IN THAT YEAR A DECISION WAS MADE TO CONSOLIDATE THE OFFICE COLLECTION FORCE ACTIVITY OF THE REDDING OFFICE INTO THE SACRAMENTO OFFICE ABOUT THE FIRST OF THE YEAR 1966. THIS WOULD LEAVE NO CLERICAL WORK IN THE REDDING OFFICE. THE PENDING CONSOLIDATION WAS KNOWN FOR SOME MONTHS, AND ON DECEMBER 16, 1965, THE SUPERVISOR OF THE TWO CLERKS WAS OFFICIALLY NOTIFIED THAT IT WOULD OCCUR JANUARY 1. HE ORALLY NOTIFIED THE CLERKS ON THE SAME DAY, DECEMBER 16, TELLING THEM THEY COULD CONTINUE ON THEIR JOBS IN SACRAMENTO, AND THEY BOTH STATED THEY COULD NOT ACCEPT EMPLOYMENT OUTSIDE THE REDDING AREA.

NO FURTHER ADVICE OR INFORMATION WAS GIVEN TO THE CLERKS AND NO WRITTEN NOTICES WERE ISSUED. ON DECEMBER 28 THE OFFICE MACHINERY, FILES AND SUPPLIES RELATING TO THE OFFICE COLLECTION FORCE ACTIVITY WERE SHIPPED TO THE SACRAMENTO OFFICE. YOUR DEPUTY ASSISTANT SECRETARY SAYS THAT IN RESPONSE TO THESE EVENTS MRS. TUCKER SUBMITTED HER RESIGNATION DECEMBER 30, 1965, EFFECTIVE JANUARY 3, 1966. MRS. HARRIS HAD SUBMITTED HER RESIGNATION ON DECEMBER 3, TO BE EFFECTIVE JANUARY 1, BASED ON KNOWLEDGE OF THE PENDING CONSOLIDATION. SHE GAVE AS THE REASON FOR HER RESIGNATION THE FOLLOWING: "BECAUSE OF CONSOLIDATION OF FUNCTION FORMERLY PERFORMED IN THE REDDING OFFICE, MY POSITION IS BEING ELIMINATED. SINCE, BECAUSE OF PERSONAL REASONS, I AM UNABLE TO ACCEPT EMPLOYMENT IN ANOTHER LOCATION, I FIND IT NECESSARY TO SUBMIT MY RESIGNATION.'

THE CIVIL SERVICE COMMISSION'S REGULATIONS ISSUED JANUARY 6, 1966, RETROACTIVE TO THE DATE OF THE SEVERANCE PAY STATUTE, OCTOBER 29, 1965, SPECIFICALLY RECOGNIZE CERTAIN SEPARATIONS BY RESIGNATION AS INVOLUNTARY-- - THAT IS, WHEN AN EMPLOYEE "IS SEPARATED BECAUSE OF RESIGNATION (I) AFTER RECEIVING A SPECIFIC NOTICE IN WRITING BY HIS DEPARTMENT THAT HE IS TO BE INVOLUNTARILY SEPARATED NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, (II) AFTER RECEIPT OF A GENERAL NOTICE OF REDUCTION IN FORCE BY HIS DEPARTMENT WHICH ANNOUNCES THAT ALL POSITIONS IN HIS COMPETITIVE AREA WILL BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA AND HIS RESIGNATION IS EFFECTIVE ON A DATE WHICH IS NOT MORE THAN ONE YEAR BEFORE THE ABOLITION OR TRANSFER, AND (III) AFTER RECEIPT OF A NOTICE BY HIS DEPARTMENT PROPOSING TO SEPARATE HIM FOR DECLINING TO ACCOMPANY HIS POSITION WHEN IT IS TO BE MOVED TO ANOTHER COMMUTING AREA BECAUSE OF A TRANSFER OF FUNCTION AND WHEN ALL POSITIONS IN HIS COMPETITIVE AREA ARE TO BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA WITHIN A PERIOD OF NOT MORE THAN ONE YEAR" (SECTION 550.706 (A/).

PARAGRAPH (B) OF THE SAME REGULATION PROVIDES:

"WHEN THE FACTS AND CIRCUMSTANCES AVAILABLE TO A DEPARTMENT SHOW THAT A RESIGNATION UNDER PARAGRAPH (A) OF THIS SECTION IS UNRELATED TO THE ISSUANCE OF ONE OF THE NOTICES SPECIFIED IN THAT PARAGRAPH, SEPARATION OF THE EMPLOYEE BY RESIGNATION IS A VOLUNTARY SEPARATION UNDER THE ACT.'

THE CIVIL SERVICE COMMISSION HAS EXPRESSED THE VIEW THAT ITS INTENTION IN PROVIDING THAT SEPARATIONS UNDER THE FOREGOING REGULATIONS WOULD BE REGARDED AS INVOLUNTARY ONLY AFTER RECEIPT OF ONE OF THE PRESCRIBED NOTICES WAS TO PREVENT EMPLOYEES FROM "JUMPING THE GUN" AND RESIGNING BEFORE ANYTHING HAD HAPPENED TO PUT THEM ON DEFINITE OFFICIAL NOTICE THAT THEY WERE TO BE SEPARATED. THIS IS IN CONFORMANCE WITH THE STATUTE WHICH WAS ENACTED TO PROVIDE SEVERANCE PAY FOR EMPLOYEES WHO HAD LOST THEIR JOBS.

THE REPORT OF THE CIVIL SERVICE COMMISSION FURTHER STATES:

"HOWEVER, THE REGULATION WAS WORDED ON THE ASSUMPTION THAT GOVERNMENT AGENCIES WOULD FOLLOW THE PRESCRIBED PROCEDURES WHEN SEPARATIONS WERE NECESSARY. ASSUMING THAT THEY DO, AN EMPLOYEE CAN HAVE NO COMPLAINT WHEN HIS SEVERANCE PAY DEPENDS ON HIS STAYING ON THE ROLLS UNTIL THE AGENCY ISSUES THE WRITTEN NOTICE (OF 30 DAYS OR MORE) TO WHICH HE IS ENTITLED BEFORE HE CAN BE INVOLUNTARILY SEPARATED. SECTION 550.706 SIMPLY DOES NOT COVER A SITUATION IN WHICH AN AGENCY, WITHOUT ISSUING ANY WRITTEN NOTICE, HAS A SUPERVISOR TELL EMPLOYEES THAT ALL THE FUNCTION ON WHICH THEY ARE WORKING IS TO BE TRANSFERRED TO A DISTANT LOCATION, THEN TWELVE DAYS LATER MOVES ALL THE WORK, EQUIPMENT, FILES, AND SUPPLIES TO THE DISTANT LOCATION AND STILL ISSUES NO NOTICE TO THE AFFECTED EMPLOYEES.

"WE BELIEVE THAT THE RESIGNATION OF MRS. TUCKER WAS CLEARLY AN INVOLUNTARY SEPARATION, AND THAT SHE SHOULD NOT BE PENALIZED BY THE AGENCY'S FAILURE TO FOLLOW THE PROCEDURE IT SHOULD HAVE FOLLOWED, OR BY THE FACT THAT SHE CHOSE NOT TO REMAIN IN PAY STATUS INDEFINITELY WITH ABSOLUTELY NOTHING TO DO. THIS IS NOT AN INSTANCE OF AN EMPLOYEE'S RESIGNING BEFORE SHE HAD DEFINITELY LOST HER JOB; BUT RATHER OF AN AGENCY'S FAILING TO ISSUE NOTICES IT SHOULD HAVE ISSUED. AS THAT FAILURE WAS AN INTENTIONAL POLICY AND NO WRITTEN NOTICE WOULD HAVE BEEN RECEIVED NO MATTER HOW LONG THE EMPLOYEES WAITED, AND MRS. HARRIS ALSO SHOULD HAVE RECEIVED WRITTEN NOTICE AT LEAST 30 DAYS IN ADVANCE OF THE PLANNED ACTION BUT RECEIVED ONLY ORAL INFORMATION, WE BELIEVE THAT SHE IS ALSO ENTITLED TO BE TREATED AS INVOLUNTARILY SEPARATED ON JANUARY 1, 1966, THE EFFECTIVE DATE OF HER RESIGNATION.

"WE WOULD HAVE THE SAME OPINION IF AN IDENTICAL SITUATION OCCURRED AFTER THE ISSUANCE OF THE REGULATIONS. IF AN EMPLOYEE RECEIVES NO WRITTEN NOTICE OF ANY ACTION, BUT ALL HIS WORK AND MEANS OF DOING IT ARE REMOVED AND IT IS MADE PLAIN TO HIM THERE WILL NO LONGER BE ANYTHING FOR HIM TO DO AND HE RESIGNS, WE BELIEVE HE IS INVOLUNTARILY SEPARATED. COMPARE 5 CFR 550 550.706 (A). AS ALREADY INDICATED, THE REGULATIONS CONTEMPLATE THAT GOVERNMENT AGENCIES WILL FOLLOW THE PROCEDURES REQUIRED BY LAW AND REGULATION, AND WE DO NOT BELIEVE THAT AN AGENCY'S FAILURE TO DO SO SHOULD BE PERMITTED TO DEPRIVE AN EMPLOYEE OF SEVERANCE PAY IF THE LOSS OF HIS POSITION IS IN FACT INVOLUNTARY AND HE MEETS THE OTHER NECESSARY CONDITIONS.'

IN THE CIRCUMSTANCES WE CONCUR IN THE VIEWS EXPRESSED BY THE CIVIL SERVICE COMMISSION AND BY THE INTERNAL REVENUE SERVICE. THEREFORE, MRS. HARRIS' AND MRS. TUCKER'S RESIGNATIONS ARE HELD TO BE INVOLUNTARY SEPARATIONS FOR SEVERANCE PAY PURPOSES AND PAYMENT THEREOF IS HEREBY AUTHORIZED.