Retiring feds: Don't get greedy for incentives

A recent court case illustrates that early-retirement incentives are a pleasant but not necessarily mandatory benefit of government service.

The case involved Dewey Wotring head of the Immigration and Naturalization Service's office in Louisville Ky.

On May 2 1994 Kenneth Rath executive associate commissioner at INS issued a memorandum announcing an opportunity for certain employees to apply for voluntary separation incentive payments (VSIPs) from May 9 1994 through May 20 1994.

Rath's memo held out the potential for additional VSIP opportunities.

"Although we hope we will be permitted to offer VSIPs again early in fiscal 1995 there is no assurance we will be able to do so " according to the memo.

In a Nov. 30 1994 memo Rath provided updated information concerning the prospect of future VSIPs. He stated that the agency's request for authority to offer VSIPs in 1995 had been denied. Rath issued another memo less than a month later that reiterated this message. The signal sent by Rath was clear: Don't expect any incentive payments for retiring in the future.

On Dec. 27 1994 Wotring applied for retirement. His application was approved and he retired Jan. 3 1995. Ten days later Rath issued a memo informing employees that the previous denial of authority to offer VSIPs had been reversed. That cleared the way for employees to apply for VSIPs from Feb. 7 1995 through March 7 1995.

Appeal Dismissed

Needless to say Wotring had missed out on some easy money. So he submitted a request to retroactively retire with a VSIP. His request was denied and he appealed to the Merit Systems Protection Board. He argued that his retirement was involuntary because it was based upon misleading information provided by his agency. In an initial decision an administrative judge found the agency had not provided Wotring misleading information and that his retirement was therefore voluntary. Accordingly the judge dismissed his appeal.

Wotring then petitioned the U.S. Court of Appeals for a review of his case. In his appeal Wotring again argued that his agency had given him misleading information. He also stated that INS had the authority to offer VSIPs and did not need approval. According to Wotring's appeal the agency expected all along to offer VSIPs in 1995.

Of course he was wrong about his agency's authority. If his agency could offer retirement incentives without the Office of Personnel Management's approval this case never would have reached the court.

Wotring argued that his retirement was not voluntary because he would not have retired if the agency had provided additional information. Rather he would have waited until INS offered VSIPs in 1995. In support of his contention he cited two e-mail messages and a conversation transcript as evidence that material information was withheld from him by his agency. The court's ruling did not elaborate on what type of information was contained in these documents but it said the evidence he submitted reflected speculation regarding whether INS might have the authority to offer VSIPs. The agency was not required to provide Wotring with speculation the court ruled. In its review the court held that INS management provided Wotring with the best information available regarding the VSIPs. It's nice to get an incentive payment when you retire but it's certainly not something you should count on.

—Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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