B-198187 L/M, APR 22, 1980

B-198187 L/M, APR 22, 1980

PRECIS-UNAVAILABLE

CLEMENT J. ZABLOCKI, HOUSE OF REPRESENTATIVES:

WE REFER FURTHER TO YOUR LETTER DATED MARCH 11, 1980, CONCERNING GUIDANCE PROVIDED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) ON MARCH 5, 1980, TO THE ACTION AGENCY CONCERNING THE TRANSFER OF ACTION EMPLOYEES TO THE PEACE CORPS PURSUANT TO EXECUTIVE ORDER 12137, MAY 16, 1979. A COPY OF THIS GUIDANCE WAS ENCLOSED WITH YOUR LETTER. IN PARTICULAR, YOU ASK FOR OUR DETERMINATION AS TO WHETHER THE OPM GUIDANCE IS CORRECT WITH REGARD TO THE CONCLUSION THAT EMPLOYEES WHO TRANSFER TO THE PEACE CORPS WOULD BE TRANSFERRED INCIDENT TO A TRANSFER OF FUNCTIONS AND ACCORDINGLY WOULD RETAIN THEIR STATUS AS EMPLOYEES WITH COMPETITIVE CIVIL SERVICE APPOINTMENTS NOTWITHSTANDING THAT THE PEACE CORPS' APPOINTMENT AUTHORITY IS SOLELY UNDER THE FOREIGN SERVICE ACT OF 1946 AS AMENDED, (22 U.S.C. 801 ET SEQ.). SEE 22 U.S.C. 2506 (1976). YOU ALSO NOTE THAT A QUESTION ARISES CONCERNING THE AUTHORITY OF THE DIRECTOR OF THE PEACE CORPS TO ADMINISTER COMPETITIVE SERVICE EMPLOYEES.

SECTIONS 4 AND 5 OF THE 1965 AMENDMENTS TO THE PEACE CORPS ACT, PUBLIC LAW 89-134, AUGUST 24, 1965, 79 STAT. 549-551, RESCINDED THE PRIOR AUTHORITY OF THE PRESIDENT UNDER THE PEACE CORPS ACT TO APPOINT PEACE CORPS EMPLOYEES SERVING IN THE UNITED STATES IN ACCORDANCE WITH THE STANDARD CIVIL SERVICE LAWS AND REGULATIONS. THE 1965 AMENDMENT PROVIDES THAT THE PEACE CORPS APPOINTMENT AUTHORITY IS SOLELY UNDER THE FOREIGN SERVICE ACT OF 1946 AS AMENDED, 22 U.S.C. 801 ET SEQ. RELATING TO THE APPOINTMENT OF FOREIGN SERVICE RESERVE OFFICERS AND FOREIGN SERVICE STAFF OFFICERS AND EMPLOYEES. IN ADDITION, THE AMENDMENTS PROVIDE THAT NO SUCH FOREIGN SERVICE RESERVE OR STAFF APPOINTMENT SHALL BE FOR MORE THAN FIVE YEARS, WITH AN EXTENSION FOR ONE YEAR IF PERSONALLY APPROVED BY THE DIRECTOR OF THE PEACE CORPS. FURTHERMORE, REAPPOINTMENTS MAY NOT BE MADE PRIOR TO THE EXPIRATION OF A PERIOD OF TIME EQUAL TO THE PRECEDING TOUR OF DUTY.

EXECUTIVE ORDER 11603, JUNE 30, 1971, PROVIDED THAT EFFECTIVE JULY 1, 1971, THE PEACE CORPS WOULD BE TRANSFERRED FROM STATE DEPARTMENT TO ACTION. PURSUANT TO EXECUTIVE ORDER 11603 THE DIRECTOR OF ACTION WAS DELEGATED AUTHORITY TO APPOINT PEACE CORPS PERSONNEL IN ACCORDANCE WITH THE APPOINTMENT AUTHORITY SET FORTH IN THE PEACE CORPS ACT, AS AMENDED. SINCE AUTHORITY OVER THE PEACE CORPS WAS BY LAW PLACED IN THE PRESIDENT THESE CHANGES WERE APPROPRIATELY MADE BY EXECUTIVE ORDER. SECTION 5042 OF TITLE 42, U.S.C. PROVIDES THAT THE DIRECTOR OF ACTION IS AUTHORIZED TO MAKE APPOINTMENTS TO POSITIONS IN ACTION PURSUANT TO CHAPTER 51 OF TITLE 5, UNITED STATES CODE. SECTION 5044(F) OF TITLE 42, U.S.C. PROVIDES THAT EXCEPT FOR THOSE EMPLOYEES PERSONALLY EXCEPTED BY THE DIRECTOR WHO CARRY OUT PEACE CORPS FUNCTIONS, THE CIVIL SERVICE APPOINTMENT AUTHORITY MUST BE USED TO EMPLOY INDIVIDUALS HAVING SUBSTANTIAL RESPONSIBILITY FOR CARRYING OUT ACTION PROGRAMS. ACCORDINGLY, ACTION EMPLOYEES, OTHER THAN PEACE CORPS EMPLOYEES, OCCUPY CIVIL SERVICE POSITIONS UNDER THE GENERAL SCHEDULE.

AS A RESULT OF THE LATTER PROVISION MOST OF THE AGENCY-WIDE SUPPORT FUNCTIONS OF ACTION ARE PERFORMED BY EMPLOYEES APPOINTED IN THE COMPETITIVE SERVICE. FURTHER, MANY OF THESE FUNCTIONS WHILE PERFORMED FOR ACTION ARE ALSO PERFORMED BY THESE INDIVIDUALS FOR THE PEACE CORPS AS A COMPONENT PART OF ACTION.

PURSUANT TO EXECUTIVE ORDER 12137, MAY 16, 1979, SOME OF THESE FUNCTIONS ARE NOW BEING SEPARATED FROM ACTION AND TRANSFERRED TO THE PEACE CORPS. WE HAVE BEEN INFORMALLY ADVISED THAT THE PRESENT TRANSFER INVOLVES ONLY 20 TO 30 POSITIONS. HOWEVER, AS A RESULT OF THE TRANSFER OF FUNCTIONS CERTAIN CIVIL SERVICE EMPLOYEES WITH COMPETITIVE STATUS WILL BE TRNSFERRED TO THE PEACE CORPS.

EXECUTIVE ORDER 12137, MAY 16, 1979, ESTABLISHES THE PEACE CORPS AS AN AUTONOMOUS AGENCY WITHIN ACTION. SECTION 1-103 PROVIDES THAT EXCEPT AS OTHERWISE SET FORTH IN THE EXECUTIVE ORDER, ALL FUNCTIONS CONFERRED UPON THE PRESIDENT BY THE PEACE CORPS ACT AND BY SECTION 2(B) OF REORGANIZATION PLAN NO. 1 OF 1971 ARE DELEGATED TO THE DIRECTOR OF THE PEACE CORPS. FURTHERMORE, SECTION 1-703 OF THE EXECUTIVE ORDER PROVIDES IN PERTINENT PART THAT SO MUCH OF THE PERSONNEL, PROPERTY, RECORDS, AND UNEXPENDED BALANCES OR APPROPRIATIONS, ALLOCATIONS AND OTHER FUNDS, EMPLOYED, USED, HELD, AVAILABLE OR TO BE MADE AVAILABLE IN CONNECTION WITH THE FUNCTIONS ASSIGNED TO THE DIRECTOR OF THE PEACE CORPS SHALL BE TRANSFERRED TO THE DIRECTOR OF THE PEACE CORPS AT SUCH TIME OR TIMES AS THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET SHALL DIRECT.

IN THE GENERAL CONCEPT OF GOVERNMENT ORGANIZATION EXECUTIVE ORDER 12137 AUTHORIZES A TRANSFER OF FUNCTION FROM ACTION TO THE PEACE CORPS.

EXECUTIVE ORDER 12137 IS SILENT AS TO THE TRANSFER RIGHTS OF THE EMPLOYEES AFFECTED BY THAT ORDER. UPON A TRANSFER OF FUNCTION FROM ONE AGENCY TO ANOTHER, 5 U.S.C. 3503(A), AS AMENDED BY SECTION 307(F) OF THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. 95-454, OCTOBER 13, 1978, 92 STAT. 1149 PROVIDES THAT EACH COMPETING EMPLOYEE IN THE FUNCTION SHALL BE TRANSFERRED TO THE RECEIVING AGENCY FOR EMPLOYMENT TO A POSITION FOR WHICH HE IS QUALIFIED BEFORE THE RECEIVING AGENCY MAY MAKE AN APPOINTMENT FROM ANOTHER SOURCE. THE IMPLEMENTING REGULATION AT 5 C.F.R. 351.301 (1979), REQUIRES, IN PART, THAT EACH COMPETING EMPLOYEE IN A POSITION IDENTIFIED WITH THE FUNCTION OR FUNCTIONS SHALL BE TRANSFERRED TO THE CONTINUING AGENCY WITHOUT CHANGE IN THE TENURE OF HIS EMPLOYMENT.

IT IS OUR VIEW THAT OPM'S OPINION THAT 5 U.S.C. 3503, IS AND SHOULD BE CONSTRUED BROADLY TO COVER SUCH SITUATION, IS REASONABLE. ACCORDINGLY, THE PROTECTIONS AND RIGHTS AFFORDED BY LAW AND IMPLEMENTED IN THE REGULATIONS CITED SHOULD BE ACCORDED TO THE EMPLOYEES TRANSFERRED FROM ACTION TO THE PEACE CORPS. IN OTHER WORDS THE TRANSFER OF FUNCTION, IN ITSELF, DOES NOT JUSTIFY DIMINISHING THE RIGHTS OF THE EMPLOYEES AFFECTED. IN SUPPORT OF THIS POSITION WE INVITE YOUR ATTENTION TO CASMAN V. DULLES 129 F. SUPP. 428 (1955) AND FELDMAN V. HERTER 276 F.2D 485 (1960), WHEREIN THE COURTS HELD THAT THE PROTECTION OF SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944 WHICH AS AMENDED IS NOW SET FORTH AT 5 U.S.C. 3503 WAS FOR APPLICATION WHERE THE TRANSFER OF FUNCTIONS WAS BETWEEN AGENCIES HAVING DIFFERENT PERSONNEL SYSTEMS. WE NOTE THAT IN CASMAN THE COURT STATED THAT THE SUBSEQUENT ENACTMENT OF THE FOREIGN SERVICE ACT OF 1946 DID NOT REPEAL THE EMPLOYEE'S STATUTORY RIGHTS UPON A TRANSFER OF FUNCTIONS.

ALSO, THE COURT OF CLAIMS HAS CONCLUDED THAT AUTHORITY TO TAKE AWAY AN EMPLOYEE'S CIVIL SERVICE RIGHTS ALREADY ACQUIRED CANNOT BE IMPLIED. SEE SALTZMAN V. UNITED STATES 161 CT.CL. 634, 638 (1963).

IN CONNECTION WITH THE ADMINISTRATIVE IMPACT OF OPM'S GUIDANCE, WE OBSERVE THAT ALTHOUGH THE 1965 AMENDMENTS TO THE PEACE CORPS ACT RESCINDED THE PEACE CORPS AUTHORITY TO MAKE CIVIL SERVICE APPOINTMENTS, WE ARE NOT AWARE OF ANYTHING IN EITHER THE STATUTORY LANGUAGE OR THE LEGISLATIVE HISTORY THEREOF WHICH WOULD REQUIRE THE CONCLUSION THAT THE PEACE CORPS WOULD BE PRECLUDED FROM ADMINISTERING OR SUPERVISING CIVIL SERVICE EMPLOYEES.

WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IN VIEW OF THE DISTINCT PERSONNEL SYSTEMS OF THE PEACE CORPS AND ACTION, ON THE BASIS OF THE INFORMATION AVAILABLE TO US AT THIS TIME, WE CANNOT CONCLUDE THAT THE TRANSFER OF FUNCTIONS AND EMPLOYEES PERFORMING THOSE FUNCTIONS TO THE PEACE CORPS IS IMPROPER. FURTHERMORE, IT IS OUR VIEW THAT THE TRANSFERRED EMPLOYEES ARE ENTITLED TO RETAIN THE PROTECTION AFFORDED THEM AS CIVIL SERVICE EMPLOYEES WHILE EMPLOYED WITH THE PEACE CORPS.

WE TRUST THAT THIS RESPONSE WILL SERVE THE PURPOSES OF YOUR INQUIRY.