B-217114, MAR 26, 1987, OFFICE OF GENERAL COUNSEL
Highlights
APPROPRIATIONS/FINANCIAL MANAGEMENT - ACCOUNTABLE OFFICERS - INVESTIGATION - CIVIL RIGHTS - VIOLATION - GAO REVIEW DIGEST: GENERAL ACCOUNTING OFFICE LACKS JURISDICTION TO EVALUATE OR REPORT ON CONSTITUENT'S CLAIMS THAT HE WAS DENIED HIS CIVIL RIGHTS BY AN ARMY BOARD OF OFFICERS INVESTIGATING HIS ACTIONS AS AN ACCOUNTABLE OFFICER OF THE U.S. AN ACCOUNTABLE OFFICER WHOSE PAY IS BEING WITHHELD BECAUSE OF ARREARAGES TO THE UNITED STATES MAY REQUEST THAT THE COMPTROLLER GENERAL REPORT THE AMOUNT OF THE DEBT TO THE ATTORNEY GENERAL. THAT HE WAS NOT ACCORDED HIS RIGHTS IN PROCEEDINGS BEFORE AN ARMY BOARD OF OFFICERS INVESTIGATING IMPROPER PAYMENTS IN ACCOUNTS OF THE U.S. KANE WAS THE FINANCE AND ACCOUNTING OFFICER.
B-217114, MAR 26, 1987, OFFICE OF GENERAL COUNSEL
APPROPRIATIONS/FINANCIAL MANAGEMENT - ACCOUNTABLE OFFICERS - INVESTIGATION - CIVIL RIGHTS - VIOLATION - GAO REVIEW DIGEST: GENERAL ACCOUNTING OFFICE LACKS JURISDICTION TO EVALUATE OR REPORT ON CONSTITUENT'S CLAIMS THAT HE WAS DENIED HIS CIVIL RIGHTS BY AN ARMY BOARD OF OFFICERS INVESTIGATING HIS ACTIONS AS AN ACCOUNTABLE OFFICER OF THE U.S. ARMY CORPS OF ENGINEERS. HOWEVER, AN ACCOUNTABLE OFFICER WHOSE PAY IS BEING WITHHELD BECAUSE OF ARREARAGES TO THE UNITED STATES MAY REQUEST THAT THE COMPTROLLER GENERAL REPORT THE AMOUNT OF THE DEBT TO THE ATTORNEY GENERAL, WHO MUST IN TURN COMMENCE SUIT AGAINST THE INDIVIDUAL WITHIN 60 DAYS. CLAIMS RELATED TO THE CONDUCT OF THE ARMY BOARD OF OFFICERS COULD BE RAISED IN LITIGATION. TO: REP. NOWAK.
THE HONORABLE HENRY J. NOWAK:
YOUR LETTER OF DECEMBER 16, 1986 ASKED FOR OUR REPORT ON ALLEGATIONS BY YOUR CONSTITUENT, PAUL F. KANE, THAT HE WAS NOT ACCORDED HIS RIGHTS IN PROCEEDINGS BEFORE AN ARMY BOARD OF OFFICERS INVESTIGATING IMPROPER PAYMENTS IN ACCOUNTS OF THE U.S. ARMY CORPS OF ENGINEERS, BUFFALO DISTRICT, FOR WHICH MR. KANE WAS THE FINANCE AND ACCOUNTING OFFICER.
ON NOVEMBER 15, 1984, THIS OFFICE ISSUED A NOTICE OF EXCEPTION IN MR. KANE'S ACCOUNT CONCERNING $22,848.22 IN PAYMENTS TO EMPLOYEES WHO WERE ENGAGED IN COMMITTING LONG-TERM FRAUD AGAINST THE GOVERNMENT, PERPETRATED BY SUBMITTING INFLATED TRAVEL VOUCHERS. AT THAT TIME, WE WERE AWARE OF THE FINDINGS OF THE ARMY BOARD OF OFFICERS, THAT MR. KANE'S ACTIONS CONTRIBUTED TO THE GOVERNMENT'S LOSS THROUGH FRAUD. THE BOARD'S FINAL REPORT HAD BEEN ISSUED ON MARCH 26, 1984, AND IT TOOK INTO ACCOUNT MR. KANE'S COMMENTS IN REBUTTAL TO ITS PRELIMINARY FINDINGS ISSUED ON FEBRUARY 22, 1984.
UNDER 31 U.S.C. SEC. 3527(C), THE ARMY REQUESTED RELIEF FOR MR. KANE, AS TO $10,233 OF THE EXCEPTED PAYMENTS. IT RECOMMENDED AGAINST RELIEF FOR THE REMAINDER. OUR DECISION, B-217114, SEPT. 24, 1986, GRANTED RELIEF FOR $7,615.73. /1/ THE ARMY'S PARTIAL RELIEF RECOMMENDATION AND OUR MODIFICATION OF IT WERE BASED NOT ON THE BOARD'S FINDINGS, BUT ON EVIDENCE CONCERNING THE INFORMATION AVAILABLE TO MR. KANE ABOUT THE STATUS OF INVESTIGATION CONDUCTED BY THE ARMY'S CRIMINAL INVESTIGATION DIVISION (CID). THE RECORD DISCLOSED THAT MR. KANE WAS PERSONALLY AWARE IN DECEMBER 1981 THAT THE CID HAD REOPENED ITS PREVIOUSLY UNSUCCESSFUL INVESTIGATION OF ALLEGED TRAVEL FRAUD IN THE BUFFALO DISTRICT TO CHECK NEW AND ADDITIONAL EVIDENCE UNCOVERED BY HIS TRAVEL CLERK.
AFTER THE INVESTIGATION WAS REOPENED, WE FOUND THE CONTINUED PAYMENTS OF TRAVEL VOUCHERS TO BE NEGLIGENT, AND ON THIS BASIS WE DENIED RELIEF FOR PAYMENTS MADE BEFORE. THE ARMY HAD USED THE SAME REASONING IN RECOMMENDING AGAINST RELIEF IN PART, BUT IT CHOSE A LATER DATE AS THE DATE ON WHICH MR. KANE KNEW OR SHOULD HAVE KNOWN THAT THE PAYMENTS WERE IMPROPER.
WHILE WE WERE AWARE OF THE BOARD FINDINGS IN PREPARING OUR NOVEMBER 1984 NOTICE OF EXCEPTION, WE DID NOT RELY ON THEM. A NOTICE DOES NOT FIX RESPONSIBILITY FOR THE LOSS, BUT SERVES ONLY TO TOLL THE STATUTE OF LIMITATIONS, WHICH WOULD OTHERWISE EXTINGUISH AN ACCOUNTABLE OFFICER'S PERSONAL LIABILITY 3 YEARS AFTER SUBSTANTIALLY COMPLETE ACCOUNTS BECOME AVAILABLE FOR AUDIT. 31 U.S.C. SEC. 3526(C)(2) (1982). IN REACHING OUR SEPTEMBER 1986 DECISION PARTIALLY TO GRANT AND PARTIALLY TO DENY RELIEF, WE RELIED ON FACTS INDEPENDENTLY SET FORTH IN THE RECORD, AND NOT ON THE BOARD'S REPORT. EVEN SO, CONCERNS ABOUT LACK OF DUE PROCESS IN AN INVESTIGATION OF THIS TYPE ARE SERIOUS IN NATURE.
ALTHOUGH THE ARMY SUGGESTED YOU REFER MR. KANE'S LETTER TO US FOR REVIEW, OUR OFFICE HAS NO JURISDICTION TO EVALUATE THE PROCEEDINGS BEFORE THE BOARD OF OFFICERS IN THESE CIRCUMSTANCES. HOWEVER, THIS DOES NOT MEAN THAT MR. KANE IS ENTIRELY WITHOUT RECOURSE. IF THE UNITED STATES WITHHOLDS THE PAY OF AN INDIVIDUAL IN ARREARS TO THE GOVERNMENT, THAT PERSON MAY REQUEST THE GENERAL ACCOUNTING OFFICE TO CERTIFY THE AMOUNT OF THE DEBT TO THE ATTORNEY GENERAL. ON RECEIPT, THE ATTORNEY GENERAL MUST COMMENCE SUIT AGAINST THE DEBTOR WITHIN 60 DAYS. 5 U.S.C. SEC. 5512(B). MR. KANE'S ALLEGATIONS WOULD THEN BE WITHIN THE COMPASS OF THE DISTRICT COURT.
ANOTHER ITEM THAT MAY BE OF INTEREST TO YOU AND TO MR. KANE IS OUR DECISION AT 65 COMP.GEN. 371 (1986). THERE, WE HELD THAT JUDICIAL OR ADMINISTRATIVE COMPROMISE OF THE UNITED STATES' CLAIMS AGAINST A FRAUDULENT PAYEE OF THE GOVERNMENT TERMINATED THE JOINT AND SEVERABLE LIABILITY OF THE ACCOUNTABLE OFFICER FOR ANY AMOUNT IN EXCESS OF THE SETTLEMENT. WE DO NOT KNOW THE STATUS OF THE PARTICULAR FRAUDULENT PAYEES' DEBTS, BUT THIS DECISION MAY ALTER THE AMOUNT OF MR. KANE'S LIABILITY.
IF MR. KANE, HIS AGENT OR HIS ATTORNEY REQUEST THAT WE REPORT THE AMOUNT DUE TO THE ATTORNEY GENERAL FOR THE PURPOSE OF INSTITUTING LITIGATION UNDER 5 U.S.C. SEC. 5512(B), WE WILL SEND THE NECESSARY REQUEST AS SOON AS POSSIBLE.
/1/ ON DISCOVERING A MATHEMATICAL ERROR, WE CORRECTED THE AMOUNT TO $7,515.72. B-217114.3, FEB. 10, 1987.