B-163516, MAR 5, 1968

B-163516, MAR 5, 1968

PRECIS-UNAVAILABLE

TO MR. KARL D. SIMECKA:

WE REFER TO YOUR LETTER OF JANUARY 30, 1968, WHICH REQUESTS REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF NOVEMBER 17, 1967, DISALLOWING YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED BY YOU IN TRAVELING ON DECEMBER 17 AND 18, 1966, BY PRIVATELY-OWNED AUTOMOBILE ON A TRIP TO SEEK PERMANENT RESIDENCE QUARTERS INCIDENT TO THE TRANSFER OF YOUR OFFICIAL STATION TO NELLIS AIR FORCE BASE, NEVADA.

THE LEGAL AUTHORITY FOR THE ALLOWANCE OF EXPENSES OF RESIDENCE SEEKING TRAVEL IS FOUND IN 5 U.S.C. 5724AA)(2) AS IMPLEMENTED BY SECTION 2.4 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, AND THE DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS, VOJUME 2, APPENDIX A, PROMULGATED DECEMBER 1, 1966.

THE TENOR OF YOUR LETTER IS SUCH AS TO SUGGEST A RECOGNITION BY YOU THAT UNDER THE LITERAL LANGUAGE OF THE CIRCULAR AND THE JOINT TRAVEL REGULATIONS YOUR CLAIM FOR REIMBURSEMENT MAY NOT BE SUSTAINABLE ON A STRICTLY LEGAL BASIS. HOWEVER, YOU FURTHER SUGGEST THAT THE REGULATIONS - WHICH WERE NOT PROMULGATED BY THE GENERAL ACCOUNTING OFFICE - SHOULD BE SO INTERPRETED BY OUR OFFICE AS TO AUTHORIZE ALLOWANCE OF CLAIMS OF AN EQUITABLE NATURE OR THOSE ARISING IN GOOD FAITH.

THE REGULATIONS PROMULGATED BY THE BUREAU OF THE BUDGET IN CIRCULAR NO. A -56 ARE EXPRESSLY REQUIRED BY THE STATUTORY PROVISIONS OF 5 U.S.C. 5724A. SUCH REGULATIONS ARE, THEREFORE, STATUTORY REGULATIONS HAVING THE FORCE AND EFFECT OF A STATUTE.

WE BELIEVE THAT A CAREFUL CONSIDERATION BY YOU OF THE PROVISIONS OF SECTION 2.4 OF THE CIRCULAR WILL LEAD YOU TO AGREE THAT THE SECTION CONTAINS BASIC PROVISIONS THAT WERE DESIGNED BY THE BUREAU OF THE BUDGET TO REQUIRE ADEQUATE ADMINISTRATIVE CONTROL OF THE TRAVEL AUTHORIZED BY THAT SECTION SO AS TO REASONABLY PROTECT THE INTERESTS OF THE UNITED STATES. IN EACH PARTICULAR CASE THE HOUSE HUNTING TRIP MUST HAVE BEEN AUTHORIZED IN ADVANCE - AS DISTINGUISHED FROM ADMINISTRATIVE APPROVAL AFTER THE FACT OF TRAVEL - BY AN APPROPRIATE OFFICIAL OF THE DEPARTMENT CONCERNED AFTER HE DECIDES THAT, AMONG ALTERNATIVES, SUCH A TRIP IS ACTUALLY NEEDED IN THE CIRCUMSTANCES OF THE CASE. FURTHER, THE EMPLOYEE MUST HAVE AGREED IN ADVANCE OF THE TRIP TO ACCEPT THE TRANSFER AND MUST HAVE SIGNED THE NECESSARY AGREEMENT TO SERVE FOR A SPECIFIC PERIOD OF TIME. IN THAT REGARD, THE REGULATIONS SPECIFICALLY SAY THAT A TRIP FOR FINDING RESIDENCE QUARTERS SHALL NOT BE AUTHORIZED UNDER CIRCUMSTANCES WHERE THE PURPOSE OF THE TRIP IS TO PERMIT THE EMPLOYEE TO DECIDE WHETHER HE WILL ACCEPT THE TRANSFER.

THE EVIDENCE OF RECORD BEFORE US POINTS TO THE FACT THAT THERE WAS NO COMPLIANCE WITH THOSE REQUIREMENTS OF SECTION 2.4 OF THE CIRCULAR EITHER BY THE APPROPRIATE ADMINISTRATIVE OFFICIALS OF YOUR INSTALLATION OR BY YOU.

IN THOSE CIRCUMSTANCES AND IN THE LIGHT OF THE FACT THAT A SUBSTANTIAL NUMBER OF GOVERNMENT EMPLOYEES ARE TRANSFERRED ANNUALLY, WE ARE SURE YOU WILL AGREE THAT A DECISION FAVORABLE TO YOU IN THIS INSTANCE WOULD NOT ONLY BE IN DEROGATION OF THE REGULATIONS LAWFULLY PROMULGATED BY THE BUREAU OF THE BUDGET BUT ALSO WOULD BE A GOVERNMENT WIDE PRECEDENT INVITING ADMINISTRATIVE OFFICIALS AND EMPLOYEES ALIKE TO DISREGARD THE REQUIREMENTS OF SECTION 2.4 OF THE CIRCULAR.

CONSEQUENTLY, WE MUST SUSTAIN THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENT OF NOVEMBER 17, 1967.