B-191051, JUL 31, 1978

B-191051, JUL 31, 1978

PRECIS-UNAVAILABLE

SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

THIS IS IN REPLY TO A REQUEST FROM MATTHEW G. SCHWIENTECK, CHIEF, FISCAL MANAGEMENT BRANCH, SOCIAL SECURITY ADMINISTRATION, THAT RELIEF BE GRANTED IN THE AMOUNT OF $640, FOR A LOSS IN THE IMPREST FUND ACCOUNT OF MS. ROSEANN MALEK, CLASS "A" CASHIER, SOCIAL SECURITY DISTRICT OFFICE, BUSHWICK, NEW YORK.

THE INFORMATION SUBMITTED INDICATES THAT AN AUDIT OF MS. MALEK'S IMPREST FUND, CONDUCTED ON SEPTEMBER 14, 1976, BY A MEMBER OF THE STAFF OF THE SOCIAL SECURITY ADMINISTRATION REGIONAL COMMISSIONER OF NEW YORK, REVEALED A SHORTAGE OF $640.

ON JULY 27, 1974, TWO VOUCHERS IN THE AMOUNT OF $865 WERE SUBMITTED TO THE FISCAL MANAGEMENT BRANCH BY THE DISTRICT OFFICE CASHIER FOR PAYMENT, BUT WERE SUPPORTED BY RECEIPTS ONLY IN THE AMOUNT OF $825, LEAVING A SHORTAGE OF $40 IN THE IMPREST FUND. ON JULY 31, 1974, VOUCHERS UNSUPPORTED BY RECEIPTS WERE SUBMITTED BY THE CASHIER FOR REIMBURSEMENT IN THE SUMS OF $325 AND $275, TOTALING $600, WHICH VOUCHERS WERE ALSO DISALLOWED. THIS RESULTED IN AN OVERALL SHORTAGE OF $640 IN THE IMPREST FUND. THE CASHIER WAS UNABLE TO FURNISH RECEIPTS TO SUPPORT THIS SHORTAGE. MS. MALEK RESIGNED FROM THE SOCIAL SECURITY ADMINISTRATION IN AUGUST 1974.

THE SUBMISSION INDICATES THAT THE CASHIER WAS A NEW CLERK, WITH INADEQUATE TRAINING TO PREPARE HER FOR THE INTENSIVE DUTIES OF HER POSITION WHICH REQUIRED HER TO KEEP RECORDS ON VOLUMINOUS IMPREST FUND ACTIVITIES. IT IS FURTHER STATED THAT HER VOUCHERS WERE POORLY PREPARED AND HER RECORD KEEPING WAS INADEQUATE. IN ADDITION, THE SUBMISSION STATES:

"TO ADD TO THE CONFUSION THE OFFICE IN WHICH THE IMPREST FUND WAS LOCATED WAS UNDER CONSTRUCTION FROM OCTOBER 1974 TO JUNE 1976. RECORDS WERE CONSTANTLY BEING MOVED AS CONSTRUCTION ADVANCED. AS A RESULT IT APPEARS THAT RECORDS BELONGING TO ROSEANN MALEK WERE LOST. ***

"WE HAVE EVALUATED THE REPORTS OF INVESTIGATION MADE IN CONNECTION WITH THE SHORTAGE AND HAVE DETERMINED THAT THE LOSSES OCCURRED DURING A HECTIC PERIOD OF TIME DUE TO THE INCEPTION OF THE SSI PROGRAM. IN ADDITION, THE CASHIER HAD INADEQUATE TRAINING. AS A RESULT WE HAVE DETERMINED THAT THE LOSS OCCURRED DUE TO EXTENUATING CIRCUMSTANCES OUTSIDE OF THE CONTROL OF ROSEANN MALEK."

OUR AUTHORITY TO GRANT RELIEF IN A CASE OF THIS TYPE IS DERIVED FROM 31 U.S.C. SEC. 82A-1 (1970), WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED, AFTER CONSIDERATION OF THE PERTINENT FINDINGS AND IF IN CONCURRENCE WITH THE DETERMINATIONS AND RECOMMENDATIONS OF THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED, TO RELIEVE ANY DISBURSING OR OTHER ACCOUNTABLE OFFICER OR AGENT OR FORMER DISBURSING OR OTHER ACCOUNTABLE OFFICER OR AGENT OF ANY SUCH DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT CHARGED WITH RESPONSIBILITY ON ACCOUNT OF PHYSICAL LOSS OR DEFICIENCY OF GOVERNMENT FUNDS, VOUCHERS, RECORDS, CHECKS, SECURITIES, OR PAPERS IN HIS CHARGE, ***, IF THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT DETERMINES (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THAT SUCH LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF SUCH OFFICER OR AGENT; AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. ***"

THUS, THE GRANTING OF RELIEF REQUIRES THE TWO AGENCY DETERMINATIONS SPECIFIED IN THE STATUTE, PLUS OUR INDEPENDENT CONCURRENCE IN THEM. THE FIRST FINDING - THAT THE LOSS OCCURRED IN THE DISCHARGE OF OFFICIAL DUTIES - ALTHOUGH IT MAY REASONABLY BE INFERRED FROM THE FACTS, IS NOT STATED IN THE REQUEST. SIMILARLY, THERE IS NO FINDING BY THE AGENCY THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MS. MALEK. THE CLOSEST STATEMENT WE HAVE IS THAT "THE LOSS OCCURRED DUE TO EXTENUATING CIRCUMSTANCES OUTSIDE OF THE CONTROL OF ROSEANN MALEK." WHILE THIS MAY BE INTERPRETED AS THE EQUIVALENT OF THE STATUTORY FINDING, IT IS NOT NECESSARILY THE SAME SINCE THE USE OF THE TERM "EXTENUATING" SEEMS TO RECOGNIZE A DEGREE OF "FAULT".

IN ANY EVENT, THE FACTS PRESENTED WOULD NOT ENABLE US TO CONCUR THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MS. MALEK. THE RECORD EXPLICITLY STATES THAT MS. MALEK'S "REIMBURSEMENT VOUCHERS WERE POORLY PREPARED AND THAT HER RECORD KEEPING WAS INADEQUATE." THE RECORD STATES THAT SHE RECEIVED "INADEQUATE TRAINING," BUT IT DOES NOT INDICATE WHAT TRAINING SHE DID RECEIVE OR HOW IT COMPARED WITH THAT GIVEN TO OTHERS IN SIMILAR POSITIONS. FINALLY, THE CONSTRUCTION WHICH TOOK PLACE FROM OCTOBER 1974 TO JUNE 1976 IS ESSENTIALLY IMMATERIAL SINCE IT TOOK PLACE AFTER THE SHORTAGES IN QUESTION AND IN FACT, AFTER MS. MALEK'S RESIGNATION. SINCE THE RECORD STATES THAT SHE "WAS UNABLE TO SUBMIT RECEIPTS TO SUPPORT THE $640.00 IN EXPENDITURES," THERE IS NO BASIS FOR INFERRING THAT SUCH RECORDS AS MAY HAVE BEEN LOST DURING THE PERIOD OF CONSTRUCTION MIGHT HAVE INCLUDED THE MISSING RECEIPTS.

ALTHOUGH WE CANNOT POINT TO ANY SPECIFIC ACTS OF NEGLIGENCE ON THE PART OF MS. MALEK IN CONNECTION WITH THE SHORTAGES IN QUESTION, POSITIVE OR AFFIRMATIVE EVIDENCE OF NEGLIGENCE IS NOT NECESSARY. THE MERE FACT THAT AN UNEXPLAINED SHORTAGE OCCURRED IS, IN AND OF ITSELF, SUFFICIENT TO RAISE A REBUTTABLE PRESUMPTION OF NEGLIGENCE. 48 COMP.GEN. 566 (1969). THE REPRESENTATIONS, BASED UPON REPORTS OF INVESTIGATION, THAT MS. MALEK WAS INEXPERIENCED IN THE PERFORMANCE OF HER DUTIES, WHICH WERE FAIRLY ARDUOUS AT THE TIME OF THE SHORTAGES, AND THAT SHE WAS POORLY TRAINED DO NOT REBUT THE PRESUMPTION OF NEGLIGENCE OR FAULT, OR ESTABLISH THAT SUCH NEGLIGENCE OR FAULT WAS NOT THE PROXIMATE CAUSE OF THE LOSS. AN ACCOUNTABLE OFFICER OF THE GOVERNMENT IS AN INSURER OF THE PUBLIC FUNDS IN HIS CUSTODY AND IS EXCUSABLE ONLY FOR LOSSES ATTRIBUTABLE TO ACTS OF GOD OR THE PUBLIC ENEMY. UNITED STATES V. THOMAS, 15 WALL. 337 (U.S. 1872). ALTHOUGH SUCH OFFICERS FREQUENTLY WORK UNDER CONDITIONS OF STRESS, AND IT IS EASY TO UNDERSTAND HOW MISTAKES CAN OCCUR IN HUMAN TERMS, THIS OFFICE IS NOT AUTHORIZED TO GRANT RELIEF EXCEPT IN CIRCUMSTANCES WHICH CONFORM STRICTLY TO THE PROVISIONS OF THE STATUTE.

ACCORDINGLY, WE MUST CONCLUDE THAT THE FACTS PRESENTED TO US DO NOT WARRANT A FINDING THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MS. MALEK, AND MUST THEREFORE DENY RELIEF.