B-214718, DEC 14, 1984, 64 COMP.GEN. 140

B-214718, DEC 14, 1984, 64 COMP.GEN. 140

ACCOUNTABLE OFFICERS - RELIEF - PHYSICAL LOSSES, ETC., OF FUNDS, VOUCHERS, ETC. RELIEF IS DENIED TO SECRET SERVICE AGENT WHOSE CARRY-ON LUGGAGE CONTAINING $1,000 CASH ADVANCE WAS STOLEN WHEN LEFT UNATTENDED IN CROWDED BOGOTA, COLOMBIA, AIRPORT. ADVANCED WAS FOR PURCHASING COUNTERFEIT U.S. CURRENCY, AND THEREFORE WAS OF THE NATURE ANTICIPATED IN 61 COMP.GEN. 313 (1982). HOWEVER, IN THIS CASE, AGENT'S NEGLIGENCE IN LEAVING BAG UNATTENDED IN A PUBLIC PLACE WAS THE PROXIMATE CAUSE OF THE LOSS. PRESENCE OF ARMED POLICE ESCORT STANDING NEARBY DOES NOT ABSOLVE AGENT OF DUTY TO PERSONALLY SAFEGUARD GOVERNMENT FUNDS ENTRUSTED TO HIS CARE. B-210507, APRIL 4, 1983, DISTINGUISHED.

TO THE FISCAL ASSISTANT SECRETARY, DEPARTMENT OF THE TREASURY, DECEMBER 14, 1984:

YOUR LETTER OF MARCH 2, 1984, REQUESTED RELIEF FOR SECRET SERVICE SPECIAL AGENT MARINO RADILLO. AGENT RADILLO WAS THE ACCOUNTABLE OFFICER FOR A $1000 CASH ADVANCE MADE FOR THE PURPOSE OF PURCHASING COUNTERFEIT U.S. CURRENCY IN COLOMBIA. ON SEPTEMBER 3, 1982, THE FUNDS WERE STOLEN IN THE BOGOTA, COLOMBIA AIRPORT ALONG WITH AGENT RADILLO'S CARRY-ON LUGGAGE. INVESTIGATION BY THE SECRET SERVICE SPECIAL INVESTIGATION AND SECURITY DIVISION FOUND THAT AGENT RADILLO WAS CARELESS WITH THE FUNDS, BUT RULED OUT NEGLIGENCE ON THE GROUND THAT AGENT RADILLO WAS ARMED AND HAD A POLICE ESCORT. WE THINK AGENT RADILLO'S CARELESS HANDLING OF THE BAG AND ITS CONTENTS ALLOW THE THEFT TO TAKE PLACE. HIS NEGLIGENCE BEING THE PROXIMATE CAUSE OF THE LOSS, WE MUST DENY RELIEF.

THE FACTS STATED IN YOUR SUBMISSION, PLUS ADDITIONAL FACTS PROVIDED INFORMALLY BY MR. BALKENBUSH OF YOUR OFFICE, ARE AS FOLLOWS. AGENT RADILLO WAS ADVANCED $1000 CASH TO PURCHASE COUNTERFEIT U.S. CURRENCY IN CALI, COLOMBIA. AGENT RADILLO AND HIS PARTNER HAD $2000 COLLECTIVELY WHICH THEY HAD SPLIT BETWEEN THEM TO MINIMIZE THE LOSS IN CASE OF THEFT. AT THE TIME OF THE LOSS AGENT RADILLO WAS CARRYING THE MONEY IN A SMALL SHOULDER BAG. AT THE AIRPORT IN BOGOTA, AGENT RADILLO NEEDED TO MAKE TICKET ARRANGEMENTS FOR HIMSELF AND HIS PARTY TO CONTINUE TO CALI. THE AIRPORT WAS VERY CROWDED, AND AGENT RADILLO STEPPED SOME DISTANCE AWAY FROM HIS PARTNER AND THEIR COLOMBIAN POLICE ESCORT TO APPROACH THE AVIANCA TICKET COUNTER AND CONDUCT HIS BUSINESS. ONCE AT THE TICKET DESK, HE PUT HIS SHOULDER BAG DOWN ON THE COUNTER NEAR WHERE HE WAS STANDING AND DIRECTED HIS ATTENTION TO THE TICKET TRANSACTION. IT TOOK AN ESTIMATED 2 TO 5 MINUTES TO COMPLETELY SECURE THE TICKETS. ON COMPLETION OF HIS BUSINESS, AGENT RADILLO TURNED TO PICK UP HIS BAG. BY THEN, IT WAS GONE.

OUR DECISION IN 61 COMP.GEN. 313 (1982) ALLOWS LAW ENFORCEMENT AGENCIES TO WRITE OFF AS OPERATING EXPENSES CERTAIN THEFTS OF FUNDS SUSTAINED WHILE CONDUCTING CRIMINAL INVESTIGATIONS. THIS TREATMENT DISPENSES WITH THE NEED TO SEEK RELIEF FOR THE ACCOUNTABLE OFFICERS IN SUCH CASES. HOWEVER, THAT DECISION APPLIES ONLY WHEN THE FUNDS ARE ACTUALLY BEING USED FOR THE PURPOSES FOR WHICH THEY WERE ENTRUSTED (I.E., PAYING AN INFORMANT, PURCHASING CONTROLLED SUBSTANCES). ID. THE DECISION DOES NOT APPLY TO FUNDS STOLEN WHILE ON THE WAY TO THE LOCATION WHERE THE ACTUAL INVESTIGATORY WORK IS TO TAKE PLACE. ID AT 316, B-210507, APRIL 4, 1983. UNDER SUCH CIRCUMSTANCES THE STANDARD RELIEF ANALYSIS APPLIES.

RELIEF MAY BE GRANTED UNDER 31 U.S.C. SEC. 3527 IF THE COMPTROLLER GENERAL AGREES WITH THE AGENCY HEAD'S DECISION THAT THE ACCOUNTABLE OFFICER WAS CARRYING OUT OFFICIAL DUTIES WHEN THE LOSS OCCURRED AND THAT THE ACCOUNTABLE OFFICER DID NOT CAUSE THE LOSS THROUGH FAULT OR NEGLIGENCE.

AGENT RADILLO WAS PERFORMING OFFICIAL DUTIES WHILE EN ROUTE TO CALI. HOWEVER, WE THINK HIS ADMITTEDLY CARELESS ACTIONS IN PLACING THE BAG ON THE COUNTER AND DIRECTING HIS FULL ATTENTION ELSEWHERE FOR 2 TO 5 MINUTES ALLOWED THE BAG TO BE STOLEN. WE THINK AGENT RADILLO WAS NEGLIGENT AND THAT HIS NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE LOSS BECAUSE HIS INATTENTION GAVE THE THIEF A CLEAR OPPORTUNITY TO STEAL THE BAG AND THE FUNDS.

WE FEEL IT IS POSSIBLE TO DISTINGUISH THIS CASE FROM B-210507, CITED ABOVE, ON THE BASIS OF THE LENGTH OF TIME THE BAG WAS UNATTENDED AND THE REASONABLENESS OF THE CONDUCT. IN THE EARLIER CASE, WE RELIEVED A DRUG ENFORCEMENT ADMINISTRATION AGENT WHOSE BRIEFCASE CONTAINING $2000 TO PAY AN INFORMANT WAS STOLEN WHEN HE SET IT DOWN TO REMOVE HIS COAT IN THE SAO PAOLO, BRAZIL AIRPORT. THAT BRIEFCASE WAS OUT OF THE AGENT'S CONTROL FOR ONLY 15 TO 20 SECONDS WHILE HE PERFORMED A REASONABLE TASK WHICH HE COULD NOT EASILY ACCOMPLISH WHILE HOLDING THE BRIEFCASE. HERE, IN CONTRAST, THE BAG WAS LEFT IN PLAIN SIGHT FOR SEVERAL MINUTES AND THERE WAS NO APPARENT REASON WHY IT COULD NOT HAVE BEEN BETTER SAFEGUARDED WHILE THE TICKET ARRANGEMENTS WERE BEING TAKEN CARE OF.

FURTHER, IN THE EARLIER CASE A BOARD OF INQUIRY HAD COMPLETELY EXONERATED THE AGENT, WHILE IN THIS CASE THE INVESTIGATION AND SECURITY DIVISION FOUND THAT AGENT RADILLO HANDLED THE FUNDS CARELESSLY.

FINALLY, WE DO NOT AGREE THAT AGENT RADILLO SHOULD BE RELIEVED SOLELY BECAUSE HE WAS ARMED AND HAD A POLICE ESCORT. AS STATED ABOVE AGENT RADILLO WAS AT SOME DISTANCE FROM HIS ESCORT IN A CROWDED AIRPORT AT THE TIME OF THE THEFT, EFFECTIVELY NEGATING ANY SECURITY THEY MIGHT HAVE PROVIDED. EVEN IF THEY HAD BEEN CLOSE BY, HOWEVER, IT REMAINS INCUMBENT ON AN ACCOUNTABLE OFFICER TO DEVOTE HIS FULL PERSONAL ATTENTION TO THE PHYSICAL SECURITY OF THE GOVERNMENT FUNDS ENTRUSTED TO HIS CARE.

UNDER OUR DECISIONS, AN ACCOUNTABLE OFFICER IS PERSONALLY LIABLE FOR A LOSS OF GOVERNMENT FUNDS DUE TO THEFT IF THE EXERCISE OF DUE CARE ON HIS PART WOULD HAVE PREVENTED THE LOSS. SEE B-188733, MARCH 29, 1979, AFFIRMED ON RECONSIDERATION, JANUARY 17, 1980; AND B-71445, JUNE 20, 1949. IF AGENT RADILLO HAD KEPT THE BAG UNDER HIS IMMEDIATE CONTROL, OR ENTRUSTED IT TO HIS FELLOW AGENT WHILE HE MADE TICKET ARRANGEMENTS, THIS THEFT WOULD NOT HAVE OCCURRED. ACCORDINGLY, WE DENY RELIEF.