B-196960 L/M, NOV 18, 1980

B-196960 L/M, NOV 18, 1980

GENERAL COUNSEL

CONRAD R. HOFFMAN, VETERANS ADMINISTRATION:

THIS IS RESPONSE TO YOUR REQUEST FOR RELIEF FROM LIABILITY IN THE AMOUNT OF $3,282.36 ON BEHALF OF RUTH M. CIKER, CLASS B CASHIER, MRS. ELAINE M. BUMBAUGH, FIRST ALTERNATE CASHIER, AND MRS. CONSTANCE SCHOMANN, SECOND ALTERNATE CASHIER, ALL OF THE VETERANS ADMINISTRATION (VA) MEDICAL CENTER, BALTIMORE, MD. WE PREVIOUSLY FOUND THAT THE ADMINISTRATIVE DETERMINATIONS REQUIRED BY 31 U.S.C. SEC. 82A-1 WERE NOT MADE. B-196960, FEBRUARY 19, 1980. THERE WERE NO FINDINGS THAT THE SHORTAGE OCCURRED WHILE THE ACCOUNTABLE OFFICERS) WAS DISCHARGING HER OFFICIAL DUTIES AND THAT THE SHORTAGE OCCURRED WITHOUT FAULT OR NEGLIGENCE ON HER PART. FURTHERMORE, THE INFORMATION IN THE ORIGINAL REQUEST WAS INSUFFICIENT TO DETERMINE WHICH OF THE NAMED INDIVIDUALS WAS RESPONSIBLE FOR THE FUNDS AT THE TIME OF THE LOSS.

THE FACTS REGARDING THE ROBBERY ARE SET OUT IN OUR LETTER OF FEBRUARY 19. MRS. CIKER, WHO WAS ON ANNUAL LEAVE AT THE TIME OF THE LOSS AND WHOSE ACTIONS HAVE NOW BEEN ADMINISTRATIVELY DETERMINED NOT TO HAVE BEEN THE PROXIMATE CAUSE OF THE LOSS, IS HEREBY GRANTED RELIEF FROM LIABILITY.

ACCORDING TO YOUR RESPONSE TO OUR REQUEST FOR ADDITIONAL INFORMATION, MRS. ELAINE BUMBAUGH, THE FIRST ALTERNATE CASHIER, HAD ASSUMED RESPONSIBILITY FOR THE FUNDS, IN THE ABSENCE OF MRS. CIKER. HOWEVER, AT THE TIME OF THE THEFT, MRS. BUMBAUGH WAS PERFORMING HER SECRETARIAL DUTIES IN THE FISCAL SERVICE OFFICE. SHE WAS NOT ACTING AS AGENT CASHIER, NOR WAS SHE IN THE AGENT CASHIER'S OFFICE WHEN THE ROBBERY OCCURRED. IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THERE WAS NO FAULT OR NEGLIGENCE ON THE PART OF MRS. BUMBAUGH WITH RESPECT TO THIS LOSS. ON THE BASIS OF THIS ADDITIONAL INFORMATION, WE HEREBY GRANT RELIEF FROM LIABILITY FOR MRS. BUMBAUGH IN THE AMOUNT REQUESTED.

YOU ALSO STATE THAT MRS. CONSTANCE SCHOMANN, THE SECOND ALTERNATE CASHIER, HAD BEEN ASSIGNED TO THE AGENT CASHIER'S OFFICE ON THE DAY THE ROBBERY OCCURRED AND WAS, THEREFORE, RESPONSIBLE FOR SAFEGUARDING THE FUNDS AT THE TIME OF THE LOSS. IN PERFORMING THE DUTIES OF AGENT CASHIER, SHE WORKED OUT OF HER CASH BOX, WHICH WAS IN AN UNLOCKED SAFE, PURSUANT TO WHAT YOU TERM THE VA CASHIERS'"WORKING SAFE" CONDITION WHILE ON DUTY. HAS ALSO BEEN ADMINISTRATIVELY DETERMINED THAT THE LOSS, WHICH OCCURRED WHEN AN INTRUDER OPENED THE UNLOCKED SAFE AND ESCAPED WITH THE CASH BOX, OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MRS. SCHOMANN.

AS WE PREVIOUSLY STATED, THIS OFFICE HAS CONSISTENTLY HELD THAT THE FAILURE TO LOCK A SAFE CONTAINING PUBLIC FUNDS IS NEGLIGENT. SEE B-196960, FEBRUARY 19, 1980, AND REFERENCES CITED THEREIN. (BUT SEE B-173710-O.M., DECEMBER 7, 1971, WHEREIN THE CASHIER WAS FOUND TO BE NEGLIGENT, NOT IN OPERATING OUT OF AN UNLOCKED SAFE, WHICH WAS AGENCY PROCEDURE, BUT IN FAILING TO LOCK THE SAFE WHILE A "MAINTENANCE MAN" - ACTUALLY A DISGUISED THIEF - WAS INSIDE HER RESTRICTED OFFICE ERECTING PARTITIONS WHICH COULD INTERFERE WITH HER VIEW OF THE SAFE.) IN THE INSTANT CASE, THE CASHIER WAS, ACCORDING TO YOUR STATEMENT, FOLLOWING THE PROCEDURE ESTABLISHED BY THE AGENCY IN WORKING OUT OF AN UNLOCKED SAFE. THE SECURITY THAT WOULD OTHERWISE BE PROVIDED BY A LOCKED SAFE WAS PROVIDED BY THE OFFICE DOOR, WHICH IS DESIGNED TO LOCK AUTOMATICALLY WHEN CLOSED. YOUR REPORT OF OCTOBER 24, 1979, INDICATES THAT THE CASHIERS WHO WORK IN THIS OFFICE HAD BEEN GIVEN TO RELY UPON THE SECURITY PROVIDED BY THIS AUTOMATIC LOCKING DEVICE.

THERE IS NO INDICATION IN YOUR REPORT THAT IT WAS THE RESPONSIBILITY OF THE CASHIER TO DETERMINE THAT THE DOOR HAD LOCKED UPON HER ENTRY. FURTHERMORE, IT IS QUESTIONABLE WHETHER SHE COULD HAVE MADE SUCH A DETERMINATION SINCE THE DOOR, WHEN LOCKED, APPARENTLY COULD BE OPENED FREELY FROM THE INSIDE. IN VIEW OF THE CASHIERS' OPERATING PROCEDURE ESTABLISHED BY THE AGENCY, THE CASHIER HAD REASON TO BELIEVE THAT THE LOCK WAS RELIABLE AND THAT ADEQUATE SECURITY WAS PROVIDED BY THE FACILITY IN WHICH SHE WORKED. MOREOVER, AS A GENERAL MATTER, IT IS THE RESPONSIBILITY OF THE AGENCY INVOLVED TO PROVIDE THE CASHIER OR OTHER ACCOUNTABLE OFFICER WITH PROPER SECURITY ARRANGEMENTS. B-182386, APRIL 24, 1975.

ACCORDING TO YOUR SUBMISSION, THE MANNER IN WHICH THE INTRUDER GAINED ACCESS TO THE AGENT CASHIER'S OFFICE IS UNKNOWN. THE INVESTIGATIONS OF THE VETERANS ADMINISTRATION AND THE BALTIMORE CITY POLICE REVEALED NO INVOLVEMENT OR COMPLICITY ON THE PART OF MRS. SCHOMANN. WE NOTE, HOWEVER, THAT FOLLOWING THE INCIDENT, THE FISCAL OFFICER, UPON EXAMINING THE DOOR, FOUND THAT IT WOULD NOT BE DIFFICULT TO PREVENT THE DOOR FROM LOCKING BY INSERTING AN IMPEDIMENT INTO THE LOCKING MECHANISM. ALTHOUGH IT WAS NOT DETERMINED THAT ACCESS TO THE OFFICE WAS GAINED IN THIS MANNER, CASHIERS WERE, AFTERWARDS, INSTRUCTED NOT TO RELY ON THE AUTOMATIC LOCKING DEVICE BUT TO CLOSE THE DOOR AND ENGAGE THE NEWLY INSTALLED DEAD BOLT LOCK. THE REPORT OF THE DIRECTOR OF THE MEDICAL CENTER STATES THAT THE CASHIER'S OFFICE IS EASILY ACCESSIBLE TO LOITERERS, AND WE NOTE THAT RECOMMENDATIONS WERE MADE BY THE BOARD OF INVESTIGATION TO IMPROVE THE SECURITY OF THE AREA OUTSIDE THAT OFFICE.

IN SUM, IT APPEARS THAT MRS. SCHOMANN WAS PERFORMING HER DUTIES AS CASHIER ACCORDING TO AGENCY PROCEDURES, BUT THAT THE PROTECTIVE FACILITIES PROVIDED IN CONJUNCTION WITH THE ESTABLISHED PROCEDURES DID NOT AFFORD ADEQUATE SECURITY FOR THE FUNDS ENTRUSTED TO HER. WE HAVE FREQUENTLY RELIEVED ACCOUNTABLE OFFICERS FROM LIABILITY FOR LOSSES WHERE THE PROTECTIVE FACILITIES DID NOT AFFORD ADEQUATE PROTECTION, AND WHERE, AS IN THE INSTANT CASE, THE ADMINISTRATIVE OFFICE DETERMINED THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER. B-197270, MARCH 7, 1980; B-191942, SEPT. 12, 1979; B-168672- O.M., JUNE 22, 1970; B-139297-O.M., APRIL 22, 1959.

IN VIEW OF THE ACCESS TO THE AGENT CASHIER'S OFFICE AND THE INADEQUATE SECURITY PROVIDED BY THE FACILITY, WE CONCUR WITH THE VA'S DETERMINATION AND GRANT RELIEF TO MRS. SCHOMANN IN THE AMOUNT REQUESTED. B-194378, FEB. 7, 1980. THE CURRENT VETERANS ADMINISTRATION APPROPRIATION AVAILABLE FOR THE EXPENSE OF THE DISBURSING FUNCTION MAY BE CHARGED WITH THE SHORTAGE.