B-163664, MARCH 28, 1968, 47 COMP. GEN. 503

B-163664, MARCH 28, 1968, 47 COMP. GEN. 503

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - NON REIMBURSABLE - VOLUNTARY RESIGNATION THE VOLUNTARY RESIGNATION IN LIEU OF FACING CHARGES FOR MISCONDUCT BY A CIVILIAN EMPLOYEE WITHIN THE 12-MONTH PERIOD HE AGREED IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT CONCERNED, IS NOT A RESIGNATION FOR A "REASON BEYOND HIS CONTROL" SO AS TO MAKE THE PAYMENT OF THE TRANSFER EXPENSES HE INCURRED, PERMISSIBLE UNDER SECTION 1.3C (1), BUREAU OF THE BUDGET CIRCULAR NO. A- 56. OFFICERS AND EMPLOYEES - RESIGNATION - ACCEPTABILITY - ADMINISTRATIVE DETERMINATION ALTHOUGH ORDINARILY WHEN THE RESIGNATION OF A CIVILIAN EMPLOYEE IS ACCEPTED, THE REASON FOR THE RESIGNATION IS ALSO ACCEPTED, THIS DOES NOT MEAN THE REASON FOR A RESIGNATION IS ACCEPTABLE TO THE GOVERNMENT FOR THE PURPOSE OF THE TERM "AND ACCEPTABLE TO THE DEPARTMENT CONCERNED" IN SECTION 1.3C (1), BUREAU OF THE BUDGET CIRCULAR NO. A 56. TO PERMIT PAYMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES OF AN EMPLOYEE WHO FAILED TO FULFILL A SERVICE AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER, THE AGENCY CONCERNED IS REQUIRED TO MAKE A DETERMINATION OF THE ACCEPTABILITY OF THE REASON FOR THE RESIGNATION. OFFICERS AND EMPLOYEES - TRANSFERS - SERVICE AGREEMENTS - FAILURE TO FULFILL UNDER SECTION 1.3C (1), BUREAU OF THE BUDGET CIRCULAR NO. A-56, WHICH PROVIDES THAT AN EMPLOYEE WHO SIGNS AN AGREEMENT TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER IS NOT ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO THE TRANSFER UNLESS HE IS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT CONCERNED, IT IS NECESSARY FOR BOTH CONDITIONS TO BE SATISFIED AND DOCUMENTED BEFORE THE EXPENSES INCIDENT TO THE TRANSFER MAY BE PAID.

TO JAMES K. WILLIAMS, TREASURY DEPARTMENT, MARCH 28, 1968:

WE REFER TO YOUR LETTER OF FEBRUARY 23, 1968, WHEREIN YOU RAISE CERTAIN QUESTIONS AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A TRAVEL VOUCHER COVERING EXPENSES INCURRED BY AN EMPLOYEE OF THE BUREAU OF NARCOTICS INCIDENT TO HIS TRANSFER FROM MIAMI, FLORIDA, TO NEW ORLEANS, LOUISIANA, EFFECTIVE SEPTEMBER 18, 1967.

SECTION 1.3C (1), BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, PROVIDES THAT EXPENSES FOR TRAVEL AND TRANSPORTATION PROVIDED FOR IN THE CIRCULAR SHALL NOT BE ALLOWED UNLESS THE TRANSFERRED EMPLOYEE AGREES IN WRITING TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT CONCERNED. THIS SECTION ALSO PROVIDES THAT IN CASE OF VIOLATION OF THE AGREEMENT, ANY MONEYS EXPENDED FOR TRAVEL OR TRANSPORTATION WILL BE RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES.

THE EMPLOYEE SIGNED AN AGREEMENT WHEREBY HE AGREED TO REMAIN IN THE SERVICE OF THE BUREAU OF NARCOTICS FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE BUREAU. YOU POINT OUT THAT CERTAIN EVENTS INDICATING MISCONDUCT CAME TO THE ATTENTION OF THE COMMISSIONER OF NARCOTICS AND A SUPERVISORY OFFICIAL INFORMED THE EMPLOYEE THAT CHARGES WOULD BE FILED TO DISMISS HIM FROM THE SERVICE. THE EMPLOYEE WAS INFORMED OF HIS RIGHT TO RESIGN IN LIEU OF FACING THE CHARGES AND WAS GIVEN AN OPPORTUNITY TO SEEK COUNSEL AND ADVICE. ON FEBRUARY 14, 1968, HE SUBMITTED A RESIGNATION FORM EFFECTIVE FEBRUARY 24, 1968, WHICH WAS ACCEPTED AS A VOLUNTARY RESIGNATION.

YOU RAISE THE FOLLOWING QUESTIONS:

1. SHOULD A VOLUNTARY RESIGNATION, AFTER THE EMPLOYEE HAS BEEN ADVISED OF THE RESULTS OF AN INVESTIGATION FOR MISCONDUCT, BE CONSTRUED AS BEING A "REASON BEYOND THE CONTROL OF THE EMPLOYEE," WHICH WOULD MAKE THE PAYMENT OF TRANSFER EXPENSES PERMISSIBLE?

2. DOES THE TERM,"AND ACCEPTABLE TO THE DEPARTMENT CONCERNED," MEAN THAT IF THE RESIGNATION IS ACCEPTED, THEN THE REASON FOR SUCH RESIGNATION IS ALSO ACCEPTED; AND THEREFORE MAKE PAYMENT OF THE TRANSFER EXPENSES PERMISSIBLE?

3. IS IT NECESSARY THAT BOTH CONDITIONS, I.E., "SEPARATED FOR REASONS BEYOND HIS CONTROL," AND "ACCEPTABLE TO THE DEPARTMENT CONCERNED," BE SATISFIED, AND DOCUMENTED, BEFORE THE EXPENSES INCIDENT TO THE TRANSFER MAY BE PAID?

WITH REGARD TO QUESTION 1, AN EMPLOYEE MAY RESIGN UNDER CERTAIN CIRCUMSTANCES AND NEVERTHELESS BE CONSIDERED SEPARATED FOR REASONS BEYOND HIS CONTROL. SUCH A CASE MAY OCCUR WHEN AN EMPLOYEE ELECTS TO RESIGN RATHER THAN BE INVOLUNTARILY SEPARATED FOR FAILURE TO PASS TRAINING SCHOOL SUBJECTS. 30 COMP. GEN. 457. HOWEVER, WHERE AN EMPLOYEE HAS BEEN ADVISED OF THE RESULTS OF AN INVESTIGATION FOR MISCONDUCT AND THAT CHARGES WILL BE FILED TO DISMISS HIM FROM THE SERVICE, HE IS NOT FACED WITH AN INEVITABLE INVOLUNTARY SEPARATION. HE HAS FREEDOM OF ACTION TO MAKE A CHOICE BETWEEN FACING THE CHARGES WHEN THEY ARE FILED OR RESIGNING, AN ALTERNATE WHICH HE MAY CONSIDER MORE FAVORABLE TO HIMSELF. UNDER THESE CIRCUMSTANCES A VOLUNTARY RESIGNATION MAY NOT REASONABLY BE CONSTRUED AS BEING FOR A "REASON BEYOND THE CONTROL OF THE EMPLOYEE" WHICH WOULD MAKE THE PAYMENT OF TRANSFER EXPENSES PERMISSIBLE. THE QUESTION IS ANSWERED IN THE NEGATIVE.

CONCERNING QUESTION 2, IF A RESIGNATION IS ACCEPTED, THEN THE REASON FOR THE RESIGNATION WOULD ORDINARILY BE ACCEPTED. HOWEVER, THIS DOES NOT NECESSARILY MEAN THAT THE REASON FOR THE RESIGNATION IS ACCEPTABLE TO THE GOVERNMENT FOR THE PURPOSE OF CIRCULAR NO. A-56, AND IT IS WITHIN THE DISCRETION OF THE AGENCY CONCERNED TO DETERMINE WHETHER THE REASON IS ACCEPTABLE FOR THAT PURPOSE.