B-163546, MAR. 8, 1968

B-163546, MAR. 8, 1968

EMPLOYEES - TRANSFERS - PUBLIC LAW 89-516 - LEASE TERMINATION DECISION TO CERTIFYING OFFICER OF NATIONAL PARK SERVICE AUTHORIZING CERTIFICATION OF A VOUCHER FOR EXPENSE REPRESENTING FORFEITURE OF SECURITY DEPOSIT ON LEASE WHEN EMPLOYEE WAS TRANSFERRED FROM BELLPORT, N.Y. TO WASHINGTON, D.C. EMPLOYEE WHO HAD MOVED HIS EFFECTS INTO RENTED PREMISES BUT WHO DID NOT ACTUALLY DWELL IN THEM WHEN HE RECEIVED TRANSFER ORDERS MAY BE REGARDED AS HAVING A SUBSTANTIAL LEGAL INTEREST IN THE PREMISES EVEN IF THE LEASE TERM DID NOT COMMENCE UNTIL AFTER THE TRANSFER ORDERS, INCLUDING THE RIGHT TO PLACE HIS EFFECTS IN THE LEASED HOME, THEREFORE THE FORFEITED BID DEPOSIT MAY BE REGARDED AS COMING UNDER 4.1B AND C OF BOB CIR. NO. A-56 AND THE EMPLOYEE MAY BE REIMBURSED.

TO MR. ARTHUR J. GILMORE:

YOUR LETTER OF FEBRUARY 5, 1968, REFERENCE F5023-ABFA, ENCLOSES A VOUCHER FOR $135 IN FAVOR OF MR. ROBERT E. BENTON, A CIVILIAN EMPLOYEE OF THE NATIONAL PARK SERVICE, REPRESENTING AN EXPENSE INCURRED BY MR. BENTON IN THE FORFEITURE OF A SECURITY DEPOSIT UNDER A LEASE CONTRACT FOR RESIDENTIAL PROPERTY, AS A CONSEQUENCE OF THE TRANSFER OF HIS OFFICIAL STATION FROM BELLPORT, NEW YORK, TO WASHINGTON, D.C., ON OR ABOUT AUGUST 16, 1967.

MR. BENTON SEEKS REIMBURSEMENT UNDER THE PROVISIONS OF 5 U.S.C. 5724A AND SECTION 4.1 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966.

THE CIRCUMSTANCES GIVING RISE TO MR. BENTON'S CLAIM ARE STATED IN YOUR LETTER TO BE AS FOLLOWS:

"MR. ROBERT E. BENTON IS A PERMANENT CAREER EMPLOYEE WHO WAS STATIONED AT FIRE ISLAND NATIONAL SEASHORE, NEW YORK. FIRE ISLAND IS A RELATIVELY NEW AREA OF THE NATIONAL PARK SERVICE OFF THE SOUTH SHORE OF LONG ISLAND, AND IS IN AN INITIAL STAGE OF DEVELOPMENT WITH MOST OF THE LAND STILL IN PRIVATE OWNERSHIP. IT CAN BE REACHED BY ROAD ONLY AT ONE LOCATION AND THAT IS AT SMITH POINT COUNTY PARK AT SHIRLEY, NEW YORK. THE ISLAND IS 32 MILES LONG AND FROM ONE-HALF MILE TO LESS THAN 200 YARDS WIDE.

"NO ROADS EXIST AT THE SEASHORE AND PRIVATE VEHICLE USE IS PROHIBITED. GOVERNMENT PATROLS ARE ACCOMPLISHED BY 4-WHEEL DRIVE VEHICLE SUBJECT TO TIDAL CONDITIONS. GOVERNMENT-OWNED RESIDENCES ARE PROVIDED FOR THOSE EMPLOYEES WHO ARE TEMPORARILY DETAILED OR ASSIGNED TO PROTECTIVE DUTIES DURING THE PERIOD OF HEAVY SEASONAL TRAVEL * * *

"MR. BENTON'S LEASE ON A PRIVATELY-OWNED HOUSE AT 12 MAPLE AVENUE, BELLPORT, NEW YORK, EXPIRED ON JULY 1, 1967. AS THE PROPERTY WAS BEING SOLD, AND AS MR. BENTON WAS SCHEDULED FOR TEMPORARY DUTY ON FIRE ISLAND FROM SOME TIME IN MAY TO AUGUST 30 (THE HEAVY TRAVEL PERIOD) HE ENTERED INTO A NEW LEASE AGREEMENT FOR PROPERTY AT 86 MAPLE AVENUE, BELLPORT, NEW YORK, ON APRIL 1 TO COMMENCE AT NOON ON SEPTEMBER 1. * * * " HOWEVER, ON AUGUST 16, 1967, WHILE OCCUPYING THE TEMPORARY QUARTERS ON FIRE ISLAND, A PERSONNEL ACTION AND TRAVEL ORDER WERE PREPARED TRANSFERRING HIM TO WASHINGTON, D.C.

AS EVIDENCED BY THE LEASE INSTRUMENT WHICH WAS EXECUTED ON APRIL 1, 1967, THE TERM OF THE LEASE WAS FOR ONE YEAR BEGINNING SEPTEMBER 1, 1967, AT A YEARLY RENT OF $1,620.50. THE RENT WAS TO BE PAID IN 14 EQUAL MONTHLY INSTALLMENTS OF $115.75 BEGINNING JULY 1, 1967. THE LEASE AGREEMENT ALSO PROVIDED FOR A PAYMENT BY THE LESSEE OF $135 ON OR BEFORE JULY 10, 1967, AS SECURITY FOR THE FAITHFUL PERFORMANCE OF THE TERMS OF THE LEASE WHICH PAYMENT WAS SUBJECT TO FORFEITURE SHOULD THE LESSEE, AMONG OTHER THINGS, FAIL TO TAKE POSSESSION OF THE PREMISES ON SEPTEMBER 1, 1967.

IT DOES NOT APPEAR THAT THE CLAIMANT EVER DWELT IN THE LEASED PREMISES BUT HE SAYS THAT IN THE LAST PART OF JUNE 1967 HE MOVED HIS HOUSEHOLD GOODS AND EFFECTS INTO SUCH PREMISES. THUS, THE LEASE WAS EXECUTED AND THE MOVEMENT OF THE EMPLOYEE'S HOUSEHOLD GOODS TOOK PLACE PRIOR TO HIS HAVING OFFICIAL NOTICE OF HIS TRANSFER TO WASHINGTON, D.C.

SECTIONS 4.1B AND C OF CIRCULAR NO. A-56 PROVIDES IN PART AS FOLLOWS:

"B. * * * IN ORDER TO BE ELIGIBLE FOR REIMBURSEMENT OF COSTS OF SELLING A DWELLING OR TERMINATING A LEASE AT THE EMPLOYEE'S OLD OFFICIAL STATION, ACQUISITION OF THE EMPLOYEE'S INTEREST IN THE PROPERTY MUST HAVE OCCURRED PRIOR TO THE DATE WHEN THE EMPLOYEE WAS FIRST DEFINITELY INFORMED THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION.

"C. THE DWELLING AT THE OLD OFFICIAL STATION WAS THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION.'

THE LEASE INSTRUMENT FAILS TO DISCLOSE ANY RESERVATIONS ON THE PART OF THE LANDLORD SUCH AS THE RIGHT OF OCCUPANCY TO HIMSELF OR THE RIGHT TO RENT TO OTHERS THAN THE PROSPECTIVE LESSEE DURING JULY AND AUGUST 1966 WHICH WOULD NEGATE THE IDEA THAT THE LESSEE HAD DURING THOSE MONTHS A SUBSTANTIAL LEGAL INTEREST IN THE PREMISES POSSIBLY EQUIVALENT TO THAT OF A TENENT INCLUDING THE RIGHT TO PLACE HIS HOUSEHOLD GOODS THEREIN PRIOR TO THE DATE HE WAS FIRST DEFINITELY INFORMED OF HIS TRANSFER.

CONSIDERING ALL OF THE CIRCUMSTANCES OF MR. BENTON'S CASE OUR VIEW IS THAT IT FALLS WITHIN THE PURVIEW OF THE ABOVE-QUOTED SECTION OF THE CIRCULAR AND THAT REIMBURSEMENT OF THE EXPENSE INCURRED BY HIM IS NOT PRECLUDED.

THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT.