B-210245 L/M, FEB 10, 1983, OFFICE OF GENERAL COUNSEL

B-210245 L/M, FEB 10, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. LARRY WILSON, DEPARTMENT OF ARGICULTURE:

THIS IS IN RESPONSE TO YOUR LETTER OF DECEMBER 16, 1982, REQUESTING RELIEF OF CASHIER GERALDINE NYBURG FROM LIABILITY FOR THE LOSS OF IMPREST FUNDS IN THE AMOUNT OF $626.21. MS. NYBURG IS AN IMPREST FUND CASHIER FOR THE FOREST SERVICE AT THE CHUGACH NATIONAL FOREST IN ANCHORAGE, ALASKA. FOR THE FOLLOWING REASONS, RELIEF IS GRANTED.

THE SHORTAGE IN THE IMPREST FUND RESULTED FROM A BREAK-IN AND THEFT IN THE FOREST SUPERVISOR'S OFFICE IN ANCHORAGE, ALASKA. THE IMPREST FUND WAS KEPT IN A SAFE MAINTAINED IN THAT OFFICE. SOMETIME BETWEEN THE NIGHT OF JANUARY 2 AND THE MORNING OF JANUARY 3, 1980, THE LOCKED SAFE WAS REMOVED FROM

WHEN THE BUDGET OFFICER DISCOVERED THE BURGLARY ON JANUARY 3, THE FEDERAL PROTECTION OFFICE, ANCHORAGE POLICE DEPARTMENT, FBI, AND THE FOREST SERVICE SPECIAL AGENT WERE NOTIFIED. THE ANCHORAGE POLICE DEPARTMENT AND THE FEDERAL PROTECTION OFFICE MADE AN INVESTIGATION. THE FBI WORKED WITH THE ANCHORAGE POLICE DEPARTMENT. THE INVESTIGATION DEVELOPED NO INFORMATION THAT IDENTIFIED A CULPRIT OR IN ANY WAY IMPLICATED MS. NYBURG. NONE OF THE CASH HAS BEEN RECOVERED.

WE HAVE AUTHORITY UNDER 31 U.S.C. SEC. 3527(A) (FORMERLY SECTION 82A 1, V AS RECODIFIED BY PUB.L. 97-258, SEPTEMBER 13, 1982) TO GRANT RELIEF TO ACCOUNTABLE OFFICERS FOR THE PHYSICAL LOSS OF FUNDS UPON OUR CONCURRENCE WITH THE AGENCY HEAD OR HIS DELEGATE THAT:

"(A) THE OFFICIAL OR AGENT WAS CARRYING OUT OFFICIAL DUTIES WHEN THE LOSS OR DEFICIENCY OCCURRED, OR THE LOSS OR DEFICIENCY OCCURRED BECAUSE OF AN ACT OR FAILURE TO ACT BY A SUBORDINATE OF THE OFFICIAL OR AGENT; AND

"(B) THE LOSS OR DEFICIENCY WAS NOT THE RESULT OF FAULT OR NEGLIGENCE BY THE OFFICIAL OR AGENT; ***"

THE FOREST SERVICE HAS EXPRESSLY MADE THESE DETERMINATIONS.

WE AGREE THAT THE LOSS OCCURRED WHILE MS. NYBURG WAS ACTING IN THE DISCHARGE OF HER OFFICIAL DUTIES. THE QUESTION OF RELIEF THEREFORE TURNS UPON THE PRESENCE OR ABSENCE OF NEGLIGENCE.

THE PRESUMPTION THAT ACCOUNTABLE OFFICERS HAVE BEEN NEGLIGENT WHEN A PHYSICAL LOSS OF FUNDS FOR WHICH THEY ARE RESPONSIBLE OCCURS CAN BE REBUTTED BY CONVINCING EVIDENCE TO THE CONTRARY. 54 COMP.GEN. 112, 115 (1974). WE HAVE PREVIOUSLY GRANTED RELIEF TO ACCOUNTABLE OFFICERS WHERE THE EVIDENCE IS CLEAR THAT A THEFT TOOK PLACE AND AN INVESTIGATION HAS REVEALED NO CONNECTION BETWEEN THE ACCOUNTABLE OFFICER AND THE THEFT. SEE, B-198789, JUNE 5, 1980 (SUSPECT CONFESSED TO THE THEFT OF IMPREST FUNDS FROM A SAFE AT THE REXFORD RANGER STATION IN EUREKA, MONTANA) AND B-189795; SEPTEMBER 23, 1977 (SAFE OPENED WITH AN ACETYLENE TORCH BY BURGLARS AT THE FAIRBANKS, ALASKA OFFICE OF THE GEOLOGICAL SURVEY AT A TIME WHEN THE OFFICE WAS CLOSED)9 WAS CLOSED).

IN THIS CASE, THERE IS CLEAR EVIDENCE THAT THE OFFICE WAS BROKEN INTO AND THAT A THEFT TOOK PLACE. A LOCKED SAFE HAD BEEN FORCIBLY OPENED DURING NON-BUSINESS HOURS. ARTICLES IN THE OFFICE HAD BEEN MOVED ABOUT AND DRAWERS WERE PULLED OPEN. FOOTPRINTS WERE FOUND IN THE OFFICE AND NEAR AN EXIST DOOR. THAT EXIT DOOR HAD PAPER PUSHED INTO THE STRIKER PLATE HOLE. THE RECORD THUS SUPPORTS THE FINDING THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER. ACCORDINGLY, WE CONCUR WITH THE ADMINISTRATIVE RECOMMENDATION THAT RELIEF BE GRANTED TO MS. NYBURG. THE LOSS MAY BE CHARGED TO FOREST SERVICE APPROPRIATION 1221106, FOREST PROTECTION AND MANAGEMENT.

YOU ALSO REFER TO OUR DECISION IN B-195782, DECEMBER 13, 1979, IN WHICH WE RELIEVED BETTY L. KEPPNER FROM LIABILITY FOR LOSS OF $513.53 IN IMPREST FUNDS BECAUSE SHE TURNED OVER POSSESSION OF THE FUNDS TO AN ALTERNATE IMPREST FUND CASHIER, MS. NYBURG, AND THEREFORE MS. NYBURG AND NOT MS. KEPPNER WAS THE ACCOUNTABLE OFFICER WHEN THE LOSS OCCURRED. HOWEVER, YOUR PREDECESSOR DID NOT REQUEST RELIEF FOR MS. NYBURG AT THAT TIME. YOU ARE NOW MAKING THAT REQUEST.

IN THAT MATTER, THE IMPREST FUNDS WERE STORED IN A LOCKABLE GUN CABINET WHICH WAS DETERMINED AT THE TIME TO BE THE SAFEST AND MOST SECURE EQUIPMENT AVAILABLE IN MS. NYBURG'S OFFICE. THE CABINET WAS BROKEN INTO AND $513.53 IN CASH WAS STOLEN DURING THE NIGHT OF MARCH 27, 1978. AN FBI AND POLICE INVESTIGATION DEVELOPED NO INFORMATION IMPLICATING MS. NYBURG, AND YOU HAVE DETERMINED THAT THE LOSS OCCURRED IN LINE WITH THE PERFORMANCE OF OFFICIAL DUTIES AND WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MS. NYBURG.

WHILE THE RECORD IS UNCLEAR WHY MS. NYBURG CHOSE TO PLACE THE IMPREST FUNDS IN THE GUN CABINET RATHER THAN AN APPROVED SAFE, YOU INDICATE THERE WAS AT THAT TIME NO BETTER LOCK-UP FACILITIES IN THE OFFICE THEN THAT USED. ALTHOUGH THE $513.53 WAS ONLY SECURED IN THE LOCKING GUN CABINET, THE RECORD INDICATES MS. NYBURG USED DUE CARE TO ENSURE THAT THE IMPREST FUNDS WERE SECURED WITHIN THE LIMITED MEANS AVAILABLE TO HER. UNDER THE CIRCUMSTANCES, WE AGREE WITH THE ADMINISTRATIVE DETERMINATION AND WE GRANT RELIEF TO MS. NYBURG. SEE B-198836, JUNE 26, 1980; AND B-189795, SEPTEMBER 23, 1977. THE LOSS MAY BE CHARGED TO THE APPROPRIATION AVAILABLE FOR THE EXPENSE OF THE DISBURSING FUNCTION, PURSUANT TO 31 U.S.C. SEC. 352F.