B-201651 L/M, FEB 9, 1981

B-201651 L/M, FEB 9, 1981

OFFICE OF GENERAL COUNSEL

WILLIAM A. MEDINA, U. S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT:

WE REFER TO THE REQUEST THAT WE PROVIDE RELIEF FROM LIABILITY UNDER 31 U.S.C. SEC. 82A-1 (1976) TO DAVID W. HOUK, ADMINISTRATIVE OFFICER FOR THE FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) DISASTER FIELD OFFICE AT PALM DESERT, CALIFORNIA, FOR A NET LOSS OF $694.28. FOR THE REASONS THAT FOLLOW, RELIEF IS GRANTED.

THE RECORD SHOWS THAT THE SAFE CONTAINING ALL THE DOCUMENTS AND FUNDS FOR THE IMPREST FUND OF THE DISASTER FIELD OFFICE WAS BROKEN INTO BETWEEN 6 P.M. ON SEPTEMBER 4, 1979 AND 8 A.M. ON SEPTEMBER 5, 1979. THE COUNTY SHERIFF'S INVESTIGATION REPORT INDICATES THAT THE SAFE WAS TURNED ON ITS BACK AND THE DOOR OF THE SAFE PRIED OPEN, AFTER THE STEEL BOLTS WERE REMOVED FROM THE HINGES. A TOTAL OF $694.28 IN CASH AND A U. S. TREASURY CHECK FOR $6,456.98 WERE STOLEN FROM THE SAFE.

THE DISASTER FIELD OFFICE IS LOCATED ON THE CAMPUS OF THE COLLEGE OF THE DESERT IN PALM DESERT, CALIFORNIA. THE RECORD SHOWS THAT CAMPUS SECURITY PERSONNEL CONFIRMED THAT THE OFFICE WAS SECURED DURING THE PERIOD WHEN THE THEFT OCCURRED. ALTHOUGH THERE WERE NO SIGNS OF FORCIBLE ENTRY, IT WAS DETERMINED THAT ACCESS TO THE OFFICE COULD EASILY BE GAINED BY USING A COAT HANGER OR SIMILAR DEVICE.

THE THEFT WAS DISCOVERED AT APPROXIMATELY 8 A.M. ON SEPTEMBER 5. THE INCIDENT WAS PROMPTLY REPORTED THROUGH ADMINISTRATIVE CHANNELS TO THE FEMA ADMINISTRATIVE OFFICE, THE RIVERSIDE COUNTY (CALIF.) SHERIFF, THE FEDERAL BUREAU OF INVESTIGATION, THE SECRET SERVICE, THE REGION IX OFFICE OF THE INSPECTOR GENERAL, AND THE U. S. TREASURY REGIONAL DISBURSING OFFICE. STOP PAYMENT ORDER ON THE CHECK WAS ISSUED ON SEPTEMBER 7, 1979. THE STOLEN CHECK AND CASH WERE NOT RECOVERED AND THE INVESTIGATIONS DID NOT RESULT IN ANY ARRESTS.

UNDER 31 U.S.C. SEC. 82A-1, OUR OFFICE IS AUTHORIZED TO RELIEVE ACCOUNTABLE OFFICERS OF RESPONSIBILITY FOR PHYSICAL LOSS OR DEFICIENCY OF GOVERNMENT FUNDS IF WE CONCUR IN THE DETERMINATION BY THE HEAD OF THE DEPARTMENT:

"(1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN 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."

THE REQUIRED DETERMINATION HAS BEEN MADE THAT THE LOSS OF FUNDS OCCURRED THROUGH NO FAULT OR NEGLIGENCE OF MR. HOUK, THE ACCOUNTABLE OFFICER, AND WHILE HE WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES.

WHILE THERE IS A PRESUMPTION THAT AN ACCOUNTABLE OFFICER HAS BEEN NEGLIGENT IN THE LOSS OF ANY FUNDS FOR WHICH HE OR SHE IS RESPONSIBLE, THAT PRESUMPTION IS REBUTTABLE BY EVIDENCE TO THE CONTRARY. 54 COMP.GEN. 112, 115 (1974). WE HAVE PREVIOUSLY GRANTED RELIEF WHERE THE EVIDENCE IS CLEAR THAT A THEFT TOOK PLACE AND AN INVESTIGATION HAS REVEALED THAT THE THEFT CANNOT BE ATTRIBUTED IN ANY WAY TO FAULT OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER. B-198881, JUNE 18, 1980; B-195435, SEPTEMBER 12, 1979; B-189795, SEPTEMBER 23, 1977.

WITH RESPECT TO THIS CASE, THE RECORD CLEARLY SHOWS THAT THE LOSS OCCURRED AS A RESULT OF A BURGLARY, AND THAT BOTH THE FIELD OFFICE AND THE SAFE WERE PROPERLY SECURED AT THE TIME THE THEFT OCCURRED. THE RELATIVE EASE WITH WHICH THE SAFE WAS OPENED BY REMOVING THE HINGE SUGGESTS THAT IT WAS NOT A VERY SECURE STORAGE PLACE FOR THE FUNDS AND SHOULD BE REPLACED WITH A MORE EFFECTIVE ONE IF THIS HAS NOT ALREADY BEEN DONE, BUT THE ACCOUNTABLE OFFICER WAS NOT NEGLIGENT IN USING IT. THUS, THE RECORD SUPPORTS THE DETERMINATION THAT THERE IS NO EVIDENCE OF NEGLIGENCE ON MR. HOUK'S PART.

ACCORDINGLY, RELIEF IS GRANTED TO DAVID W. HOUK, FOR THE TOTAL AMOUNT OF $694.28, AND ADJUSTMENT MAY BE CHARGED TO THE APPROPRIATION CURRENTLY AVAILABLE FOR THE EXPENSE OF THE DISBURSING FUNCTION.

DIGEST

ADMINISTRATIVE OFFICER OF FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) DISASTER RELIEF OFFICE MAY BE RELIEVED OF LIABILITY IN ACCORDANCE WITH 31 U.S.C. SEC. 82A-1 FOR NET LOSS OF $694.28 FROM IMPREST FUND. OFFICE WAS BROKEN INTO AND LOCKED SAFE, IN WHICH FUNDS WERE STORED, WAS OPENED BY FORCE. RECORD SUPPORTS AGENCY DETERMINATION THAT LOSS WAS CAUSED BY THEFT NOT ATTRIBUTABLE IN ANY WAY TO FAULT OR NEGLIGENCE ON THE PART OF THE ADMINISTRATIVE OFFICER.