B-209558, JUL 18, 1983, OFFICE OF GENERAL COUNSEL

B-209558, JUL 18, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. ROGER B. FELDMAN, COMPTROLLER, DEPARTMENT OF STATE:

THIS IS IN RESPONSE TO AN APRIL 20, 1981 REQUEST FROM ELIZABETH A. GIBBONS, THEN DIRECTOR, OFFICE OF FINANCIAL OPERATIONS, THAT RELIEF FROM LIABILITY BE GRANTED TO JEAN C. LYND, CLASS B CASHIER AT THE MIAMI, FLORIDA PASSPORT OFFICE, FOR A SHORTAGE OF PUBLIC FUNDS IN HER CUSTODY. (THE REQUEST WAS MISDIRECTED AND DID NOT REACH US UNTIL OCTOBER 19, 1982.)

THE LOSS APPARENTLY RESULTED FROM A BURGLARY AT THE MIAMI PASSPORT OFFICE DURING THE WEEKEND OF AUGUST 16-17, 1980. ACCORDING TO THE INVESTIGATIVE REPORTS, SOMEONE BROKE INTO THE OFFICE THROUGH THE FRONT DOOR AND FORCED OPEN THE BOTTOM DRAWER OF A 4-DRAWER FILING CABINET WHERE THE CASHIER'S IMPREST FUND WAS KEPT AND ESCAPED WITH $287.52. IN ADDITION, A MOSLER SAFE, WHICH WAS LOCATED IN ANOTHER ROOM APPROXIMATELY 10 FEET FROM WHERE THE IMPREST FUND WAS KEPT, WAS FORCED OPEN WITH A CROW BAR AND HAMMER AND $1,452.00 IN CONSULAR FEE RECEIPTS WERE TAKEN. CONSULAR FEES REPRESENT THE MONEYS RECEIVED FROM THE ISSUANCE OF PASSPORTS.

THE THEFT WAS DISCOVERED AT APPROXIMATELY 7:00 A.M. ON MONDAY, AUGUST 18, 1980. THE INCIDENT WAS PROMPTLY REPORTED THROUGH ADMINISTRATIVE CHANNELS TO THE MIAMI POLICE DEPARTMENT, THE FEDERAL BUREAU OF INVESTIGATION AND DEPARTMENT OF STATE SECURITY, MIAMI.

MS. GIBBONS' INITIAL REQUEST SOUGHT RELIEF FOR THE IMPREST FUND CASHIER, MS. LYND, FOR THE LOSS OF THE $287.52 CASH ADVANCE AS WELL AS THE LARGER LOSS OF $1,452 FROM THE CONSULAR RECEIPTS. THIS APPEARS TO BE CONSISTENT WITH THE FINDINGS AND RECOMMENDATIONS OF THE DEPARTMENT OF STATE'S COMMITTEE OF INQUIRY INTO FISCAL IRREGULARITIES, A COPY OF WHICH WAS INCLUDED WITH THE SUBMISSION. HOWEVER, IN THE COURSE OF OBTAINING ADDITIONAL INFORMATION ABOUT THE PASSPORT OFFICE'S PROCEDURES, WE LEARNED FROM INFORMAL CONVERSATIONS WITH THE AGENT-IN CHARGE, J. E. SEBERT, AND FROM READING THE PASSPORT OFFICE INSTRUCTIONS TO IMPREST FUND CASHIERS THAT AT NO TIME IS A CLASS B IMPREST FUND CASHIER PERMITTED ACCESS TO CONSULAR FEES. THE ACCOUNTABLE OFFICER FOR CONSULAR FEES, WE WERE ADVISED, IS THE DUTY OFFICER IN CHARGE.

MS. LYND, THEREFORE, WAS ONLY RESPONSIBLE FOR THE IMPREST FUNDS KEPT IN THE 4-DRAWER FILE CABINET, AND HER LOSS AMOUNTED TO $287.52. THE GENERAL ACCOUNTING OFFICE HAS DELEGATED AUTHORITY TO HEADS OF DEPARTMENTS AND AGENCIES TO ADMINISTRATIVELY RESOLVE IRREGULARITIES IN THE ACCOUNTS OF ACCOUNTABLE OFFICERS FOR AMOUNTS NOT EXCEEDING $500 AND TO GRANT SUCH ACCOUNTABLE OFFICERS RELIEF UNDER APPROPRIATE STATUTORY CRITERIA, IN THIS CASE 31 U.S.C. SEC. 3527(A). SEE 54 COMP.GEN. 112 (1974). THE DELEGATION OF AUTHORITY TO AGENCIES TO RESOLVE ADMINISTRATIVE IRREGULARITIES, NOT TO EXCEED $500, IS RELEVANT, OF COURSE, ONLY WHEN THE AGENCY HEAD (OR HIS DELEGATEE) BELIEVES THE ACCOUNTABLE OFFICER SHOULD BE RELIEVED OF LIABILITY. ACCORDINGLY, WE ARE RETURNING THE QUESTION OF MS. LYND'S LIABILITY TO YOU FOR ADMINISTRATIVE RESOLUTION WITHOUT THE NEED FOR FURTHER CONCURRENCE FROM GAO, SINCE THE AMOUNT INVOLVED IS ONLY $287.52.

WITH RESPECT TO THE LOSS OF THE $1,452.00 IN CONSULAR FEE RECEIPTS, THE RECORD INDICATES THAT THE LOSS OCCURRED AS A RESULT OF A BURGLARY, AND THAT BOTH THE PASSPORT OFFICE AND THE SAFE WERE APPARENTLY PROPERLY SECURED AT THE TIME THE THEFT OCCURRED, SINCE VIOLENT ENTRY APPEARED TO BE NECESSARY. IT IS NOT SIGNIFICANT THAT THE FUNDS WERE LEFT IN THE SAFE OVER THE WEEKEND. BRINKS ARMORED CAR SERVICE, INC. PICKS UP RECEIPTS AT THE PASSPORT OFFICE EVERY DAY AT NOON. THE RECEIPTS THAT WERE STOLEN WERE THOSE TO BE COLLECTED BETWEEN NOON AND CLOSING ON FRIDAY AND WERE DUE TO BE PICKED UP ON MONDAY.

THE MANNER IN WHICH THE SAFE WAS OPENED SUGGESTS THAT IT WAS NOT A VERY SECURE STORAGE PLACE FOR THE FUNDS. SINCE THE BURGLARY, FRIDAY'S RECEIPTS ARE KEPT IN THE VAULT OVER THE WEEKEND WHICH DOES NOT SUGGEST THAT THE ACCOUNTABLE OFFICER WAS NEGLIGENT IN NOT USING THE VAULT IN THE FIRST INSTANCE. PRECAUTIONS OR SAFEGUARDS TAKEN SUBSEQUENT TO A CRIMINAL ACT AFFORD NO LEGITIMATE BASIS FOR CONSTRUING SUCH ACTS AS AN ADMISSION OF PREVIOUS NEGLECT OF DUTY. A PERSON MAY HAVE EXERCISED ALL THE CARE WHICH THE LAW REQUIRED AND YET, IN THE LIGHT OF HIS NEW EXPERIENCE, AFTER AN UNEXPECTED OCCURRENCE, AND AS A MEASURE OF EXTREME CAUTION, ADOPT ADDITIONAL SAFEGUARDS.

NOTWITHSTANDING THE ABOVE DISCUSSION, WE CANNOT GRANT RELIEF FOR THE LOSS OF THE CONSULAR FUNDS AT THIS TIME. THE AUTHORITY TO RELIEVE AN ACCOUNTABLE OFFICER FOR LIABILITY FOR A LOSS OR DEFICIENCY IN FUNDS IS CONTAINED IN 31 U.S.C. SEC. 3527(A) (1982) (FORMERLY 31 U.S.C. SEC. 82A 1). PURSUANT TO THIS AUTHORITY GAO HAS BEEN GIVEN DISCRETION TO RELIEVE AN ACCOUNTABLE OFFICER OF LIABILITY WHERE THE AGENCY HEAD (OR HIS DELEGATEE) DETERMINES THAT THE LOSS OR DEFICIENCY OCCURRED WHILE THE OFFICER WAS ACTING IN THE DISCHARGE OF HIS OR HER OFFICIAL DUTIES AND THAT THE LOSS OR DEFICIENCY OCCURRED WITHOUT ANY FAULT OR NEGLIGENCE ON THE PART OF THE EMPLOYEE. AT THIS WRITING, THE APPROPRIATE ACCOUNTABLE OFFICER FOR THE CONSULAR FEE LOSS - PRESUMABLY THE DUTY OFFICER - HAS NOT BEEN IDENTIFIED TO US. MOREOVER, NEITHER OF THE REQUIRED FINDINGS HAVE BEEN MADE. WHILE WE THINK THAT THERE IS CONVINCING EVIDENCE THAT A THEFT TOOK PLACE, WE ARE NOT PREPARED TO ASSUME THAT THE ACCOUNTABLE OFFICER - WHOEVER HE MAY BE - HAD NO INVOLVEMENT WITH THE THEFT UNLESS THE PROPER OFFICIALS AT YOUR AGENCY MAKE THAT FINDING AND SUBMIT IT TO US WITH SUPPORTING EVIDENCE AND A RECOMMENDATION FOR RELIEF.

ACCORDINGLY, THIS MATTER IS ALSO RETURNED TO YOU FOR WHATEVER FURTHER ACTION YOU CARE TO TAKE.