B-198761, SEPTEMBER 2, 1980, 59 COMP.GEN. 699

B-198761, SEPTEMBER 2, 1980, 59 COMP.GEN. 699

OFFICERS AND EMPLOYEES - TRANSFERS - GOVERNMENT V. EMPLOYEE INTEREST - MERIT PROMOTION TRANSFERS - RELOCATION EXPENSE REIMBURSEMENT - ABSENCE OF AGENCY REGULATIONS EMPLOYEE, WHO TRANSFERRED FROM DEPARTMENT OF THE INTERIOR, NEW ORLEANS, TO COMMISSION ON CIVIL RIGHTS, WASHINGTON, D.C., CLAIMS RELOCATION EXPENSES ON BASIS THAT TRANSFER WAS UNDER MERIT PROMOTION PROGRAM. AGENCY DENIED CLAIM BECAUSE TRANSFER WAS FOR CONVENIENCE OF EMPLOYEE AND BECAUSE OF BUDGET CONSTRAINTS. EMPLOYEE MAY NOT BE DENIED RELOCATION EXPENSES OF TRANSFER PURSUANT TO SELECTION UNDER MERIT PROMOTION PLAN ON BASIS THAT THE EMPLOYEE INITIATED THE JOB REQUEST BY REPLYING TO A VACANCY ANNOUNCEMENT. BUDGET CONSTRAINTS DO NOT JUSTIFY DENIAL OF RELOCATION EXPENSES ON TRANSFER IN INTEREST OF GOVERNMENT. FONTANELLA, B-184251, JULY 30, 1975, MODIFIED (AMPLIFIED). THIS DECISION WAS LATER MODIFIED (EXTENDED) BY B-201256, APRIL 27, 1981.

MATTER OF: EUGENE R. PLATT - RELOCATION EXPENSES, SEPTEMBER 2, 1980:

THIS DECISION IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF SETTLEMENT CERTIFICATE NO. Z-2821423, MARCH 26, 1980, BY WHICH OUR CLAIMS DIVISION DISALLOWED MR. EUGENE R. PLATT'S CLAIM FOR RELOCATION EXPENSES INCURRED INCIDENT TO HIS TRANSFER FROM NEW ORLEANS, LOUISIANA, TO WASHINGTON, D.C.

IN SEPTEMBER 1979, THE COMMISSION ON CIVIL RIGHTS POSTED A VACANCY ANNOUNCEMENT FOR A POSITION OF WRITER-EDITOR UNDER ITS MERIT PROMOTION PROGRAM. IT POSTED THE ANNOUNCEMENT AT ITS HEADQUARTERS IN WASHINGTON, D.C., AND AT ALL OF ITS REGIONAL OFFICES. COPIES WERE ALSO SENT TO SEVERAL COMMUNITY GROUPS AND THE FEDERAL RESEARCH SERVICE INC. APPLICATIONS WERE RECEIVED FROM 104 INDIVIDUALS, INCLUDING MR. PLATT. MR. PLATT STATES THAT, WHILE HE WAS A TECHNICAL PUBLICATION EDITOR, GS 9, FOR THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR, NEW ORLEANS, HE LEARNED OF THE VACANCY ANNOUNCEMENT FOR A WRITER-EDITOR WITH THE COMMISSION ON CIVIL RIGHTS IN WASHINGTON, D.C. TO BE FILLED UNDER THE MERIT PROMOTION PROGRAM. HE APPLIED FOR THE POSITION AND HAD A TELEPHONE INTERVIEW WITH HIS PROSPECTIVE SUPERVISOR, DURING WHICH MR. PLATT ALLEGES THAT HE WAS TOLD THE "NORMAL REIMBURSEMENT" WOULD BE MADE IF HE WERE SELECTED. LATER, AN OFFICIAL WITH THE PERSONNEL OFFICE TELEPHONED MR. PLATT WITH AN OFFER OF EMPLOYMENT AT GS-11. THE OFFICIAL MADE IT CLEAR TO MR. PLATT THAT THE COMMISSION WOULD NOT PAY RELOCATION EXPENSES. THE CIVIL RIGHTS COMMISSION REPORTS THAT THIS POLICY WAS INITIATED IN RESPONSE TO AN OFFICE OF MANAGEMENT AND BUDGET (OMB) BULLETIN ORDERING ALL AGENCIES TO REDUCE TRAVEL COSTS.

ON DECEMBER 5, 1979, THE COMMISSION SENT MR. PLATT A WRITTEN OFFER CONFIRMING THE TELEPHONIC ONE, STATING THAT THE EXPENSES OF TRANSPORTATION AND MOVEMENT OF HOUSEHOLD GOODS WOULD NOT BE PAID AND REQUIRING A WRITTEN RESPONSE TO THE OFFER WITHIN A 5 DAY PERIOD. /1/ ON DECEMBER 10, 1979, MR. PLATT INDICATED IN WRITING HIS ACCEPTANCE, WITH NO QUALIFICATIONS OR CONDITIONS. ON DECEMBER 20, 1979, MR. PLATT REPORTED FOR DUTY IN WASHINGTON, D.C., HAVING TRAVELED FROM NEW ORLEANS AT HIS OWN EXPENSE. TRAVEL ORDERS WERE EVER ISSUED BY THE COMMISSION AND NO TRAVEL ADVANCE WAS MADE.

MR. PLATT MAINTAINS THAT, EVEN THOUGH THE COMMISSION MADE CLEAR BEFORE HE ACCEPTED THE JOB OFFER THAT IT HAD NO INTENTION OF PAYING HIS RELOCATION EXPENSES, HE SHOULD BE REIMBURSED FOR THREE REASONS. /2/ FIRST, MR. PLATT MAINTAINS THAT BUDGET CONSTRAINTS CANNOT FORM THE BASIS FOR DENYING AN EMPLOYEE RELOCATION EXPENSES, CITING OUR DECISION DAVID C. GOODYEAR, 56 COMP.GEN. 709(1977). SECOND, HE MAINTAINS THAT THE MOVE WAS FOR THE BENEFIT OF THE GOVERNMENT SINCE, BEFORE HE APPLIED FOR THE JOB, AN OFFICIAL VACANCY ANNOUNCEMENT WAS PUBLISHED AND CIRCULATED WHICH INDICATED THAT THE VACANCY WAS TO BE FILLED PURSUANT TO THE MERIT PROMOTION PROGRAM. LASTLY, HE CONTENDS THAT SINCE OTHER GOVERNMENT AGENCIES NORMALLY REIMBURSE EMPLOYEES FOR SUCH MOVES, HE TOO SHOULD BE REIMBURSED.

WE SHALL CONSIDER THE QUESTION OF MR. PLATT'S ENTITLEMENT FIRST. REIMBURSEMENT OF TRAVEL AND RELOCATION EXPENSES UPON AN EMPLOYEE'S CHANGE OF STATION UNDER 5 U.S.C. 5724 AND 5724A(1976) IS CONDITIONED UPON A DETERMINATION BY THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE THAT THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT AND IS NOT PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE, OR AT HIS REQUEST. IN THIS CONNECTION SEE PARA. 2-1.3, FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (MAY 1973). SEE ALSO MICHAEL J. DEANGELIS, B-192105, MAY 16, 1979; AND PAUL J. WALSKI, B-190487, FEBRUARY 23, 1979.

THE REGULATION, HOWEVER, DOES NOT FURNISH ANY GUIDANCE TO AGENCIES AS TO THE FACTORS TO BE CONSIDERED IN MAKING THAT DETERMINATION. IN ORDER TO ASSIST AGENCIES, WE OFFERED THE FOLLOWING GUIDANCE IN DANTE P. FONTANELLA, B-184251, JULY 30, 1975:

GENERALLY, HOWEVER, IF AN EMPLOYEE HAS TAKEN THE INITIATIVE IN OBTAINING A TRANSFER TO A POSITION IN ANOTHER LOCATION, AN AGENCY USUALLY CONSIDERS SUCH TRANSFER AS BEING MADE FOR THE CONVENIENCE OF THE EMPLOYEE OR AT HIS REQUEST, WHEREAS, IF THE AGENCY RECRUITS OR REQUESTS AN EMPLOYEE TO TRANSFER TO A DIFFERENT LOCATION IT WILL REGARD SUCH TRANSFER AS BEING IN THE INTEREST OF THE GOVERNMENT. OF COURSE, IF AN AGENCY ORDERS THE TRANSFER AND THE EMPLOYEE HAS NO DISCRETION IN THE MATTER, THE EMPLOYEE IS ENTITLED TO REIMBURSEMENT OF MOVING EXPENSES.

SEE ROSEMARY LACEY, B-185077, MAY 27, 1976, WHERE THE SAME GUIDANCE IS SET FORTH.

IN APPLYING THE FEDERAL TRAVEL REGULATIONS AND OUR GUIDANCE TO SPECIFIC CASES, WE HAVE RECOGNIZED THAT THE DETERMINATION OF WHETHER A TRANSFER IS IN THE INTEREST OF THE GOVERNMENT OR PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST IS PRIMARILY A MATTER WITHIN THE DISCRETION OF THE EMPLOYING AGENCY. B-186684, FEBRUARY 2, 1977; B-184251, JULY 30, 1975; AND B-143845, JULY 26, 1961. WE DO NOT BELIEVE THAT WE SHOULD OVERTURN AN AGENCY'S DETERMINATION UNLESS IT IS ARBITRARY OR CAPRICIOUS OR CLEARLY ERRONEOUS UNDER THE FACTS OF THE CASE.

IN SEVERAL CASES, WE HAVE DENIED RELOCATION EXPENSES ON THE GROUND THAT THE TRANSFERS IN QUESTION WERE LATERAL TRANSFERS TO POSITIONS WITHOUT GREATER PROMOTION POTENTIAL AND, THEREFORE, WERE OUTSIDE THE MERIT PROMOTION PROGRAM. HENCE, WE SUSTAINED THE AGENCIES' DETERMINATIONS THAT THE TRANSFERS WERE FOR THE EMPLOYEE'S CONVENIENCE. JACK C. STOLLER, B-144304, SEPTEMBER 19, 1979; PAUL J. WALSKI, B-190487, FEBRUARY 23, 1979; FERDINANDO D'ALAURO, B-173783.192, DECEMBER 21, 1976.

WE HAVE ALLOWED RELOCATION EXPENSES ON MERIT PROMOTION TRANSFERS WHERE AN AGENCY'S OWN REGULATIONS PROVIDED THAT SUCH TRANSFERS ARE IN THE GOVERNMENT'S INTEREST. THUS, IN STEPHEN P. SZARKA, B-188048, NOVEMBER 30, 1977, AN AIR FORCE EMPLOYEE WAS SELECTED FOR A POSITION IN CALIFORNIA THAT HAD BEEN ADVERTISED BY AN AGENCY-WIDE VACANCY ANNOUNCEMENT UNDER THE MERIT PROMOTION PROGRAM. WHEN THE SELECTION WAS MADE, THE EMPLOYEE WAS INFORMED THAT HE WOULD HAVE TO PAY HIS OWN EXPENSES OF TRANSFERRING FROM FLORIDA. WE OVERRULED THE AGENCY'S DETERMINATION THAT THE TRANSFER WAS FOR THE EMPLOYEE'S BENEFIT BECAUSE THE AIR FORCE, BY REGULATION, HAD DETERMINED THE TRANSFERS UNDER THE MERIT PROMOTION PROGRAM WERE IN THE INTEREST OF THE GOVERNMENT.

WE HAVE BEEN ADVISED THAT THE COMMISSION ON CIVIL RIGHTS DOES NOT HAVE ANY AGENCY REGULATIONS ON THE SUBJECT OF RELOCATION EXPENSES AND MERIT PROMOTION TRANSFERS. THUS, WE ARE FACED IN THIS CASE WITH THE BASIC QUESTION OF WHETHER, IN THE ABSENCE OF AGENCY REGULATIONS MANDATING PAYMENT OF RELOCATION EXPENSES UNDER THE MERIT PROMOTION PROGRAM, EMPLOYEES WHO RELOCATE THEIR PERMANENT DUTY STATION PURSUANT TO SELECTION UNDER THE MERIT PROMOTION PROGRAM MUST BE CONSIDERED TO BE TRANSFERRED IN THE INTEREST OF THE GOVERNMENT.

THE COMMISSION ON CIVIL RIGHTS BASES ITS DENIAL OF REIMBURSEMENT OF RELOCATION EXPENSES TO MR. PLATT ON SEVERAL GROUNDS. THE FIRST IS THAT HE WAS NOT RECRUITED NOR REQUESTED TO TRANSFER BY THE COMMISSION SINCE IT HAD MERELY ISSUED A VACANCY ANNOUNCEMENT AND HAD NO PERSONAL CONTACT WITH HIM OR ANY OTHER PERSON WHO SUBMITTED AN APPLICATION. THE SECOND GROUND ASSERTED BY THE COMMISSION IS THAT MR. PLATT TOOK THE INITIATIVE IN APPLYING FOR A NEW JOB IN A NEW CITY, ACCEPTED THE JOB OFFER WITH THE CONDITION THAT THERE WOULD BE NO REIMBURSEMENT FOR RELOCATION EXPENSES, AND THEREFORE MUST BE CONSIDERED TO HAVE RELOCATED FOR HIS OWN CONVENIENCE. IN THE ALTERNATIVE THE COMMISSION STATES THAT MR. PLATT SHOULD BE DENIED RECOVERY AS A MATTER OF PURE CONTRACT LAW PRINCIPLES SINCE HE HAD ACCEPTED THE WRITTEN OFFER OF A POSITION WITH KNOWLEDGE THAT HE WOULD NOT BE PAID RELOCATION EXPENSES.

WE NEED NOT DISCUSS THE COMMISSION'S ALTERNATIVE ARGUMENT BECAUSE THE ISSUE IS NOT ONE OF CONTRACT LAW. RATHER THE QUESTION IS ONE OF EMPLOYEES' RIGHTS UNDER THE GOVERNING STATUTES AND REGULATIONS.

IT IS EVIDENT THAT THE WIDE DISSEMINATION OF VACANCY ANNOUNCEMENTS IS A MEANS OF ATTRACTING QUALIFIED ELIGIBLES FOR VACANT POSITIONS. THE PRIMARY PURPOSE OF THE MERIT PROMOTION PROGRAM IS "TO ENSURE SYSTEMATIC MEANS FOR SELECTION FOR PROMOTION ACCORDING TO MERIT." 5 C.F.R. 335.103(1979). THROUGH OPEN COMPETITION ELIGIBLE PERSONS ARE GIVEN THE OPPORTUNITY TO COMPETE FOR VACANCIES, AND AGENCIES ARE ABLE TO REACH A WIDER POOL OF APPLICANTS, AND REFER THE BEST QUALIFIED CANDIDATES TO A SELECTING OFFICIAL. THE FACT THAT EMPLOYEES HAVE TO APPLY FOR SUCH VACANCIES, OR THAT THE PROMOTION MAY BE, AND USUALLY IS, ALSO IN THE EMPLOYEE'S BEST INTEREST, DOES NOT CHANGE THE FUNDAMENTAL TRUTH THAT THE PURPOSE AND INTENT OF MERIT PROMOTION IS TO SERVE THE GOVERNMENT'S INTEREST BY OBTAINING THE BEST QUALIFIED PERSONS FOR VACANT POSITIONS.

IN REGARD TO THE COMMISSION'S DETERMINATION NOT TO AUTHORIZE REIMBURSEMENT IN RESPONSE TO A DIRECTIVE TO REDUCE TRAVEL COSTS, WE STATED IN OUR DECISION DAVID C. GOODYEAR, 56 COMP.GEN. 709(1977), CITED BY MR. PLATT, THAT FTR PARA. 2-1.3 REQUIRED AN AGENCY TO MAKE A DETERMINATION AS TO WHETHER AN EMPLOYEE'S TRANSFER IS IN THE INTEREST OF THE GOVERNMENT OR PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE. WE THEN HELD:

THE NAVY'S STATEMENT THAT "BUDGET CONSTRAINTS" DID NOT AT THAT TIME PERMIT PAYMENT OF RELOCATION EXPENSES EXCEPT IN MANPOWER SHORTAGE CATEGORIES, MISCONSTRUES THE PURPOSE AND SCOPE OF THE REQUIREMENT TO MAKE A DETERMINATION AS TO WHETHER A PARTICULAR TRANSFER IS IN THE INTEREST OF THE GOVERNMENT. THE REQUIREMENT IN FTR PARA. 2-1.3 REFERS TO DETERMINING WHETHER OR NOT THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT. PROVISION IS MADE TO PERMIT SUCH DETERMINATION, IN EFFECT, TO BE PREDICATED ON THE COST OF RELOCATION EXPENSES * * * . THUS, "BUDGET CONSTRAINTS" CANNOT FORM THE BASIS FOR DENYING AN EMPLOYEE RELOCATION EXPENSES IF HIS TRANSFER HAS BEEN FOUND TO BE IN THE GOVERNMENT'S INTEREST.

WE BELIEVE THE AGENCY DECISION IN THIS CASE IS BASED ON IMPROPER UNDERSTANDING OF OUR DECISIONS. THE PRIMARY REASONS GIVEN BY THE AGENCY FOR THE DENIAL OF THE REQUEST FOR TRANSFER EXPENSES WERE (1) BUDGET CONSTRAINTS, AND (2) THAT IT DID NOT RECRUIT OR REQUEST THE EMPLOYEE TO TRANSFER, BUT THAT HE INITIATED THE ACTION BY APPLYING FOR THE JOB. OUR DECISION DAVID C. GOODYEAR, 56 COMP.GEN. 709(1977) WE HELD THAT BUDGET CONSTRAINTS CANNOT FORM THE BASIS FOR DENYING AN EMPLOYEE RELOCATION EXPENSES IF HIS TRANSFER HAS BEEN FOUND TO BE IN THE GOVERNMENT'S INTEREST. FURTHER, IN DANTE FONTANELLA, B-184251, JULY 30, 1975, WE STATED THAT IF THE AGENCY RECRUITS OR REQUESTS AN EMPLOYEE TO TRANSFER TO A DIFFERENT LOCATION IT WILL NORMALLY REGARD SUCH TRANSFER AS BEING IN THE INTEREST OF THE GOVERNMENT. OUR VIEW IS THAT WHEN AN AGENCY ISSUES AN ANNOUNCEMENT OF AN OPENING UNDER ITS MERIT PROMOTION PROGRAM THAT SUCH ACTION IS A RECRUITMENT ACTION WITHIN THE SCOPE OF FONTANELLA. THUS, THE FACT THAT AN EMPLOYEE REQUESTS THE POSITION AS A RESULT OF SUCH ANNOUNCEMENT IS NOT A PROPER BASIS TO CONCLUDE THAT THE TRANSFER IS AT THE REQUEST OF OR PRIMARILY FOR THE CONVENIENCE OF THE EMPLOYEE. WITH RESPECT TO THE BUDGET CONSTRAINT ASPECT, THE POLICY OF THE AGENCY WAS TO RESTRICT TRAVEL AND TRANSPORTATION TO REDUCE THE AMOUNT SPENT FOR SUCH PURPOSES DURING THE FISCAL YEAR 1980. ONE POLICY RESTRICTION IMPOSED BY THE AGENCY WAS "(WE WILL NOT PAY FOR TRANSPORTATION OR THE MOVEMENT OF HOUSEHOLD GOODS OF ANY PERSON HIRED FROM OUTSIDE THE AGENCY." THAT BUDGET RESTRAINT MAY NOT, UNDER GOODYEAR, SERVE AS A BASIS FOR DENIAL OF THE CLAIM BY MR. PLATT IF THE TRANSFER IS OTHERWISE IN THE GOVERNMENT'S INTEREST.

THUS, ON THE RECORD BEFORE US WE FIND NO APPROPRIATE BASIS FOR A DETERMINATION BY THE AGENCY THAT THE TRANSFER WAS AT THE REQUEST OF OR PRIMARILY FOR THE CONVENIENCE OF THE EMPLOYEE. RATHER, THE RECORD STRONGLY SUGGESTS THE TRANSFER WAS IN THE INTEREST OF THE GOVERNMENT. ACCORDINGLY, WE BELIEVE THE AGENCY SHOULD MAKE A NEW DETERMINATION IN THE CASE TAKING COGNIZANCE OF THE CLARIFICATION OF FONTANELLA AS SET FORTH ABOVE. ABSENT SOME OTHER BASIS THAN THOSE HERETOFORE ADVANCED BY THE AGENCY, OUR VIEW IS THAT THE APPROPRIATE DETERMINATION BY THE AGENCY UNDER THE FACTS OF THE CASE IS THAT THE TRANSFER WAS IN THE INTEREST OF THE GOVERNMENT.

/1/ WE ASSUME THAT THE INTENT WAS TO EXCLUDE ALL TRANSFER RELATED EXPENSES UNDER 5 U.S.C. 5724 AND 5724A.

/2/ THE TERM "RELOCATION EXPENSES" IS USED HEREIN AS A SHORTHAND REFERENCE TO ALL TRANSFER EXPENSES AUTHORIZED UNDER 5 U.S.C. 5724 AND 5724A.