B-205985 L/M, JUL 12, 1982, OFFICE OF GENERAL COUNSEL

B-205985 L/M, JUL 12, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. THEODORE V. LISS, U. S. CONSUMER PRODUCT SAFETY COMMISSION:

THIS IS IN RESPONSE TO YOUR LETTER OF NOVEMBER 17, 1981, REQUESTING RELIEF IN THE AMOUNT OF $1,053 FOR MS. EILEEN M. BRYAN, CLASS-B CASHIER, NEW YORK REGIONAL OFFICE, U. S. CONSUMER PRODUCT SAFETY COMMISSION. FOR THE REASONS THAT FOLLOW, RELIEF IS GRANTED.

THE AGENCY REPORT INDICATES THAT AT APPROXIMATELY 4:45 P.M. ON NOVEMBER 25, 1980, MS. BRYAN CLOSED AND LOCKED THE CASH BOX IN WHICH IMPREST FUNDS AND RECORDS WERE STORED. (WE NOTE THAT THIS FACTUAL DETERMINATION BY THE AGENCY DOES NOT CONFORM TO THE FINDING BY SECRET SERVICE INVESTIGATORS THAT: "BY THE CASHIER'S *** ADMISSION, THE CASH BOX WAS NOT LOCKED WHEN SHE PLACED IT IN HER SAFE AT THE CLOSE OF BUSINESS ON NOVEMBER 25, 1980.") MS. BRYAN THEN PLACED THE CASH BOX IN A SAFE AND SHE LOCKED THE COMBINATION LOCK. THE AGENCY REPORT INDICATES THAT THE COMBINATION WAS KNOWN ONLY TO MS. BRYAN, THE DIRECTOR OF THE REGIONAL OFFICE, AND THE DIRECTOR'S SECRETARY. THE SECRET SERVICE REPORT NOTES THAT AN ADDITIONAL INDIVIDUAL NO LONGER EMPLOYED BY THE CONSUMER PRODUCT SAFETY COMMISSION ALSO KNEW THE COMBINATION. WHEN MS. BRYAN RETURNED TO THE OFFICE AT APPROXIMATELY 8:20 A.M. ON NOVEMBER 28, 1980, SHE UNLOCKED THE SAFE AND DISCOVERED THAT THE CASH BOX HAD BEEN OPENED. SHE ASKED TWO EMPLOYEES TO COUNT THE CASH WITH HER, AND FOUND A SHORTAGE OF $1,053. THE LOSS WAS REPORTED IMMEDIATELY.

WE HAVE AUTHORITY UNDER 31 U.S.C. SEC. 82A-1 (1976) TO GRANT RELIEF TO ACCOUNTABLE OFFICERS FOR THE PHYSICAL LOSS OF FUNDS UPON OUR CONCURRENCE WITH A DETERMINATION BY THE AGENCY HEAD OR HIS DELEGATE:

"*** (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES ***; AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. ***"

IN THE GIVEN CASE, THE AGENCY REPRESENTATIVE HAS DETERMINED THAT THE LOSS OF FUNDS OCCURRED WHILE MS. BRYAN WAS ACTING IN HER OFFICIAL CAPACITY, AND THAT, "WHILE ADMINISTRATIVE DEFICIENCIES WERE DISCLOSED IN THE SECRET SERVICE REPORT, THOSE DEFICIENCIES DO NOT CONSTITUTE FAULT OR NEGLIGENCE OF MS. BRYAN WITH RESPECT TO THE SPECIFIC LOSS IN QUESTION."

WHERE, AS IN THE GIVEN SITUATION, AN UNEXPLAINED LOSS OCCURS, A REBUTTABLE PRESUMPTION ARISES THAT THE LOSS WAS ATTRIBUTABLE TO THE NEGLIGENCE OF THE ACCOUNTABLE OFFICER. THE ACCOUNTABLE OFFICER WILL BE GRANTED RELIEF ONLY IF HE OR SHE CAN ESTABLISH THAT (1) HE OR SHE DID NOT BEHAVE NEGLIGENTLY, OR (2) HIS OR HER NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE LOSS.

IN THIS CASE, WE CANNOT CONCUR WITH THE AGENCY REPRESENTATIVE'S FINDING THAT MS. BRYAN LOCKED HER CASH BOX BEFORE PLACING IT IN THE SAFE, SINCE, ACCORDING TO THE SECRET SERVICE REPORT, MS. BRYAN HERSELF ADMITTED THAT THE CASH BOX WAS NOT LOCKED WHEN SHE PUT IT IN THE SAFE. WE WILL NONETHELESS GRANT THE RELIEF REQUESTED BECAUSE IT DOES NOT APPEAR THAT THIS OVERSIGHT WAS THE PROXIMATE CAUSE OF THE LOSS. OTHER BREACHES OF SECURITY PROVISIONS, FOR WHICH MS. BRYAN WAS NOT RESPONSIBLE, WOULD HAVE ALLOWED THE LOSS TO HAVE OCCURRED EVEN HAD MS. BRYAN LOCKED HER CASH BOX.

THE SECRET SERVICE INVESTIGATION DISCLOSED SEVERAL VARIANCES FROM THE PROCEDURES ESTABLISHED IN THE DEPARTMENT OF THE TREASURY'S "MANUAL OF PROCEDURES AND INSTRUCTIONS FOR CASHIERS OPERATING UNDER EXECUTIVE ORDER NO. 6166" (JUNE 1976) WHICH CONTRIBUTED TO A DIMINISHED SECURITY SITUATION. ACCORDING TO MS. BRYAN, THE COMBINATION TO HER SAFE HAD NOT BEEN CHANGED IN APPROXIMATELY 5 YEARS. SECTION 4 OF THE MANUAL OF PROCEDURES, IN CONTRAST, REQUIRES THAT THE COMBINATION BE CHANGED ANNUALLY, WHENEVER THERE IS A CHANGE OF CASHIERS, WHEN IT HAS BEEN NECESSARY TO EFFECT ACCESS TO THE FUNDS IN THE CASE OF UNFORESEEN ABSENCE OF A CASHIER, OR WHEN THE COMBINATION HAS BEEN COMPROMISED.

THE SECRET SERVICE REPORT FURTHER NOTES THAT, ACCORDING TO MS. BRYAN, THE COMBINATION TO HER SAFE WAS IN THE POSSESSION OF THREE PERSONS OTHER THAN HERSELF. MS. BRYAN ALSO STATED THAT BOTH THE ALTERNATE CASHIER AND THE AREA DIRECTOR HAD KEYS TO HER CASH BOX, AND THAT THE AREA DIRECTOR KEPT THE COMBINATION TO HER SAFE IN HIS DESK. THE AREA DIRECTOR CONTRADICTED THE LATTER POINT, MAINTAINING THAT HE KEPT THE COMBINATION IN A LOCKED CABINET IN HIS OFFICE.

THESE CIRCUMSTANCES DO NOT CONFORM TO THE REQUIREMENTS FOR SAFEKEEPING SET FORTH IN THE MANUAL OF PROCEDURES. THE MANUAL PROVIDES IN SECTION 4 THAT:

"*** THE SAFE COMBINATION AND DUPLICATE KEY TO THE CASH BOX IN WHICH IMPREST FUNDS ARE HELD SHOULD BE PLACED IN A SEALED, SIGNED, AND DATED ENVELOPE FOR RETENTION IN A SECURE PLACE BY THE ADMINISTRATIVE OFFICER OR SECURITY OFFICER AT THE STATION FOR USE ONLY IN THE EVENT OF AN EMERGENCY. SEPARATE CASH BOXES OR SAFE DRAWERS SHOULD BE PROVIDED FOR ALTERNATES AND SUB-CASHIERS. ***"

EXCEPT IN AN EMERGENCY, INDIVIDUALS OTHER THAN MS. BRYAN SHOULD NOT HAVE HAD ACCESS TO THE SAFE COMBINATION OR DUPLICATE KEYS TO THE CASH BOX.

WE HAVE IN THE PAST RELIEVED ACCOUNTABLE OFFICERS FROM LIABILITY FOR LOSSES WHERE A NUMBER OF PEOPLE HAD ACCESS TO THE FUNDS THROUGH KNOWLEDGE OF THE SAFE COMBINATION AND/OR PROTECTIVE FACILITIES DID NOT PROVIDE ADEQUATE PROTECTION. E.G., B-191942, SEPTEMBER 12, 1979. HERE, THE COMBINATION TO THE SAFE, WHICH SHOULD HAVE BEEN CHANGED ONCE A YEAR, HAD NOT BEEN CHANGED FOR APPROXIMATELY 5 YEARS. FURTHERMORE, AS PREVIOUSLY NOTED, BOTH THE SAFE COMBINATION AND A DUPLICATE KEY TO MS. BRYAN'S CASH BOX WERE IN THE POSSESSION OF INDIVIDUALS OTHER THAN THE CASHIER HERSELF, AND, ACCORDING TO MS. BRYAN, STILL OTHER PERSONS COULD HAVE GAINED ACCESS TO THE COMBINATION WITH A MINIMUM OF EFFORT. WE ARE THUS OF THE VIEW THAT THE LOSS IN THIS CASE CANNOT BE ATTRIBUTED TO NEGLIGENCE ON THE PART OF MS. BRYAN. RELIEF IS ACCORDINGLY GRANTED TO MS. BRYAN FOR THE FULL AMOUNT OF THE LOSS.

WE NOTE IN CLOSING THAT THE NEW YORK REGIONAL OFFICE OF THE U. S. CONSUMER PRODUCT SAFETY COMMISSION HAS NOT COMPLIED WITH THE DEPARTMENT OF THE TREASURY'S MANUAL OF PROCEDURES AND INSTRUCTIONS FOR CASHIERS WITH REGARD TO SAFEKEEPING FACILITIES. IT IS INCUMBENT UPON THE AREA DIRECTOR TO ENSURE THAT OFFICE PROCEDURES ARE BROUGHT INTO CONFORMITY WITH THESE GUIDELINES.