B-163726, MAY 8, 1968

B-163726, MAY 8, 1968

TO MR. H. M. BAKER:

WE REFER TO YOUR LETTER OF FEBRUARY 29, 1968, WITH ENCLOSURES, REFERENCE 6540, REQUESTING OUR DECISION WHETHER THE COSTS OF TRANSFERRING AN EMPLOYEE OF THE FOREST SERVICE FROM JUNEAU, ALASKA, TO PETERSBURG, ALASKA, ARE TO BE RECOVERED FROM SUCH EMPLOYEE.

YOU REPORT THAT MR. JAMES L. NELSON WAS RECRUITED IN ANCHORAGE, ALASKA, FOR A POSITION WITH THE FOREST SERVICE IN JUNEAU, ALASKA, AND REPORTED FOR DUTY AT JUNEAU ON DECEMBER 19, 1966. HIS TRAVEL AND TRANSPORTATION EXPENSES FROM ANCHORAGE TO JUNEAU WERE PAID BY FOREST SERVICE IN ACCORDANCE WITH SECTION 5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, RELATING TO MANPOWER SHORTAGE CASES. CONSIDERATION THEREOF, MR. NELSON EXECUTED AN AGREEMENT TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR A PERIOD OF 12 MONTHS.

IN MARCH 1967, MR. NELSON'S POSITION AT JUNEAU WAS ABOLISHED AND HE WAS OFFERED A SIMILAR POSITION WITH THE FOREST SERVICE AT PETERSBURG, ALASKA. ALTHOUGH HE PROTESTED THE ACTION, MR. NELSON DID ACCEPT THE TRANSFER TO PETERSBURG AND REPORTED FOR DUTY THEREAT ON APRIL 16, 1967. HIS TRAVEL, TRANSPORTATION, AND OTHER ALLOWANCES INCIDENT TO SUCH TRANSFER WERE PAID BY THE GOVERNMENT. IN CONSIDERATION THEREOF, MR. NELSON EXECUTED ANOTHER AGREEMENT TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR A MINIMUM PERIOD OF 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE GOVERNMENT. SUCH AN AGREEMENT, YOU SAY, IS ADMINISTRATIVELY REQUIRED AS A MATTER OF POLICY FOR TRANSFERS WITHIN THE STATE OF ALASKA.

ON JANUARY 15, 1968 -- NINE MONTHS AFTER HIS ARRIVAL AT PETERSBURG - MR. NELSON RESIGNED FROM THE GOVERNMENT DUE TO PERSONAL REASONS. BY SO DOING HE VIOLATED THE EMPLOYMENT AGREEMENT EXECUTED UPON HIS TRANSFER TO PETERSBURG. HOWEVER, YOU ASK WHETHER MR. NELSON EXECUTED A VALID AGREEMENT AND REQUEST OUR DECISION WHETHER THE COSTS OF TRANSFERRING MR. NELSON TO PETERSBURG MUST BE RECOVERED FROM HIM AS A DEBT DUE THE UNITED STATES.

SECTION 5724 OF TITLE 5, U.S.C. AUTHORIZES THE PAYMENT OF VARIOUS TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES WHO ARE TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY. IF SUCH TRANSFER IS TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES (THE 48 CONTIGUOUS STATES AND THE DISTRICT OF COLUMBIA) THE EMPLOYEE IS REQUIRED, BY VIRTUE OF 5 U.S.C. 5724 (D), TO AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR A MINIMUM PERIOD OF 12 MONTHS FOLLOWING THE TRANSFER. WE HAVE HELD THAT SUCH AN AGREEMENT IS REQUIRED IN CASES OF TRANSFERS BETWEEN DIFFERENT TERRITORIES OR COUNTRIES OUTSIDE THE CONTINENTAL UNITED STATES. B 138928, MAY 12, 1959, COPY HEREWITH. HOWEVER, IN OUR OPINION, A TRANSFER BETWEEN POINTS LOCATED WITHIN THE SAME TERRITORY, COUNTRY, OR IN THE CASE OF ALASKA AND HAWAII THE SAME STATE, IS NOT A TRANSFER TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES WITHIN THE MEANING OF 5 U.S.C. 5724 (D). CF. B- 160762, JUNE 9, 1967, AND DECISIONS CITED THEREIN, COPY HEREWITH. IN SUCH CIRCUMSTANCES THE LAW DOES NOT REQUIRE THE EXECUTION OF AN EMPLOYMENT AGREEMENT.

NOTWITHSTANDING THE ABSENCE OF ANY LEGAL REQUIREMENT TO EXECUTE SUCH AN AGREEMENT, IT IS OUR OPINION THAT A DEPARTMENT OR AGENCY HAS AUTHORITY TO REFUSE TO AUTHORIZE OR APPROVE PAYMENT OF ANY EXPENSE INVOLVED IN THE TRAVEL OR TRANSPORTATION OF AN EMPLOYEE IN CONNECTION WITH A CHANGE OF OFFICIAL STATION UNLESS AND UNTIL THE EMPLOYEE CONCERNED EXECUTES AN AGREEMENT TO REMAIN IN THE SERVICE OF THE AGENCY OR GOVERNMENT FOR A SPECIFIED PERIOD OF TIME. SUCH AN AGREEMENT HAVING BEEN EXECUTED BY THE EMPLOYEE IN THIS CASE, IN ACCORDANCE WITH THE POLICY OF YOUR AGENCY, THE EMPLOYEE IS BOUND BY THE PROVISIONS THEREOF. THEREFORE, HE IS REQUIRED TO REFUND THE MONEY EXPENDED BY THE GOVERNMENT INCIDENT TO HIS TRANSFER TO PETERSBURG.