B-201556 L/M, MAR 3, 1982, OFFICE OF GENERAL COUNSEL

B-201556 L/M, MAR 3, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: WHERE AGENCY SEEKS RELIEF FROM LIABILITY FOR ACCOUNTABLE OFFICER X ON GROUNDS THAT ACCOUNTABLE OFFICER X ACTED IN ACCORDANCE WITH ESTABLISHED PROCEDURES, AFTER HAVING OBTAINED RELIEF FOR ACCOUNTABLE OFFICER Y ON GROUNDS THAT ACCOUNTABLE OFFICER X DID NOT ACT IN ACCORDANCE WITH ESTABLISHED PROCEDURES, RELIEF FOR ACCOUNTABLE OFFICER X IS DENIED AND RELIEF FOR ACCOUNTABLE OFFICER Y IS REVOKED. BURDEN IS ON AGENCY TO HARMONIZE INCONSISTENT ADMINISTRATIVE DETERMINATIONS.

DORIS M. MEISSNER, DEPARTMENT OF JUSTICE:

WE REFER TO YOUR LETTER OF DECEMBER 30, 1981, REQUESTING THAT WE PROVIDE RELIEF FROM LIABILITY, UNDER 31 U.S.C. SEC. 82A-1, TO MARIE COPELAND, AN ACCOUNTABLE OFFICER OF THE SAN DIEGO DISTRICT OFFICE, IMMIGRATION AND NATURALIZATION SERVICE (INS), FOR THE NET AMOUNT OF $8,443.73, RESULTING FROM LOSS OF A U. S. TREASURY NOTE. YOU NOTE THAT, PURSUANT TO THE REQUEST OF YOUR PREDECESSOR, DAVID CROSLAND, OUR OFFICE PREVIOUSLY GRANTED RELIEF FROM LIABILITY TO JAMES J. O'KEEFE, DISTRICT DIRECTOR OF THE SAN DIEGO DISTRICT OFFICE, FOR THE SAME LOSS. WE ADVISED THE INS AT THAT TIME THAT THE GRANT OF RELIEF TO MR. O'KEEFE DID NOT RELIEVE OTHER ACCOUNTABLE OFFICERS OF LIABILITY. WE DETERMINED THAT SINCE MS. COPELAND HAD PHYSICAL CUSTODY OF THE NOTE IN THE COURSE OF HER DUTIES AT THE TIME OF THE LOSS, AND WAS THUS AN ACCOUNTABLE OFFICER WITH RESPECT TO THE NOTE, SHE WOULD REMAIN LIABLE FOR THE LOSS UNLESS RELIEF WERE REQUESTED AND GRANTED.

YOU STATE THAT MS. COPELAND ACTED IN ACCORDANCE WITH ESTABLISHED PROCEDURES IN PLACING THE NOTE IN A DRAWER TO WHICH MORE THAN ONE PERSON HAD ACCESS. YOU CONCLUDE THAT SINCE MS. COPELAND DID NOT HAVE SOLE ACCESS TO THE DRAWER, SHE WAS NOT NEGLIGENT.

WE CALL YOUR ATTENTION TO THE NEXT-TO-LAST PARAGRAPH OF ACTING COMMISSIONER CROSLANDS' LETTER OF DECEMBER 16, 1980, REQUESTING RELIEF FOR MR. O'KEEFE. THERE, HE STATED THAT:

"ON THE BASIS OF OUR REVIEW OF THE CIRCUMSTANCES SURROUNDING THE LOSS, IT HAS BEEN DETERMINED THAT THE LOSS OCCURRED BECAUSE EMPLOYEES SUBORDINATE TO MR. O'KEEFE DID NOT FOLLOW ESTABLISHED PROCEDURES IN ACCEPTING THE U. S. TREASURY NOTE AND USED OTHER THAN SOLE ACCESS STORAGE FOR TEMPORARY STORAGE. IT HAS FURTHER BEEN DETERMINED THAT ESTABLISHED PROCEDURES WERE PROVIDED AND SOLE ACCESS STORAGE WAS AVAILABLE AT THE TIME THE LOSS OCCURRED AND AS SUCH, THERE WAS NO NEGLIGENCE OR FAULT ON THE PART OF THE DISTRICT DIRECTOR INCIDENT TO THE LOSS OF THE TREASURY NOTE."

WE GRANTED RELIEF TO MR. O'KEEFE BASED ON THIS ADMINISTRATIVE DETERMINATION.

YOU NOW CONTEND THAT MS. COPELAND ACTED IN ACCORDANCE WITH ESTABLISHED PROCEDURES. THIS DETERMINATION IS CLEARLY INCONSISTENT WITH THE SERVICE'S PREVIOUS DETERMINATION, AND IF THIS IS CORRECT, OUR GRANT OF RELIEF TO MR. O'KEEFE MUST BE RECONSIDERED. THIS OFFICE CANNOT, AT THE SAME TIME, RELIEVE THE SUPERVISOR ON THE GROUND THAT SOLE ACCESS STORAGE AND PROPER PROCEDURES WERE PROVIDED, BUT THE SUBORDINATE WITH PHYSICAL CUSTODY OF THE NOTE FAILED TO COMPLY WITH THEM, AND THEN RELIEVE THE SAME SUBORDINATE ON THE GROUND THAT SHE DID COMPLY WITH THESE PROCEDURES. THE BURDEN IS ON THE IMMIGRATION AND NATURALIZATION SERVICE TO HARMONIZE THESE INCONSISTENT DETERMINATIONS.

WE ACCORDINGLY DECLINE TO GRANT RELIEF TO MS. COPELAND, AND REVOKE OUR GRANT OF RELIEF TO MR. O'KEEFE UNTIL SUCH TIME AS THE INS DETERMINES WHETHER OR NOT PROPER STORAGE AND PROCEDURES WERE PROVIDED TO MR. O'KEEFE'S SUBORDINATE AND WHETHER OR NOT THESE ESTABLISHED PROCEDURES WERE INDEED RESPECTED BY MS. COPELAND. THEN INS CAN RESUBMIT A REQUEST FOR RELIEF FOR MR. O'KEEFE AND/OR MS. COPELAND.