B-202597 L/M, MAY 10, 1982, OFFICE OF GENERAL COUNSEL

B-202597 L/M, MAY 10, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: THE GENERAL ACCOUNTING OFFICE (GAO) HAS NO AUTHORITY TO CONSIDER A REQUEST FOR RELIEF OF AN ACCOUNTABLE OFFICER UNDER 31 U.S.C. SEC. 82A 1, UNLESS AND UNTIL THE AGENCY DETERMINES THAT THE LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTY AND THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. IN THE ABSENCE OF SUCH DETERMINATIONS, GAO CANNOT GRANT THE REQUESTED RELIEF AND THE AGENCY INVOLVED HAS THE RESPONSIBILITY TO INITIATE COLLECTION ACTION AGAINST THE ACCOUNTABLE OFFICER IN ACCORDANCE WITH THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 31 U.S.C. SECS. 951-953 (1976), AND THE IMPLEMENTING JOINT REGULATIONS ISSUED BY THE ATTORNEY GENERAL AND COMPTROLLER GENERAL, 4 C.F.R. PARTS 101-105 (1981).

MR. CONRAD R. HOFFMAN, CONTROLLER, VETERANS ADMINISTRATION:

THIS IS IN RESPONSE TO YOUR LETTER (YOUR REFERENCE 047C1:1-3) FORWARDED TO US BY MR. ROBERT B. BURRILL, CHIEF DISBURSING OFFICER, DEPARTMENT OF THE TREASURY, REQUESTING THAT RELIEF BE GRANTED TO MS. JUNE WALKER (NOW MRS. JUNE WALKER BAZILE), AN ALTERNATE CASHIER PREVIOUSLY EMPLOYED AT THE VETERANS ADMINISTRATION'S (VA) REGIONAL OFFICE IN LOS ANGELES, CALIFORNIA. THE RELIEF REQUESTED IS TO COVER A PHYSICAL LOSS OF $1,773.04, WHICH HAD BEEN RECEIVED BY MRS. BAZILE AS ACTING CASHIER, ON DECEMBER 18, 1979, AS A CASH PAYMENT ON A DELINQUENT VA LOAN GUARANTY MORTGAGE. FOR THE REASONS EXPLAINED BELOW, WE CANNOT GRANT RELIEF.

IN SUPPORT OF YOUR REQUEST, YOU STATE THE FOLLOWING:

"IT WAS THE CONTENTION OF THE CASHIER THAT THE FUNDS WERE PLACED IN A SAFE TO WHICH OTHER EMPLOYEES HAD ACCESS. IT WAS ALSO CONTENDED THAT AN INTERNAL AUDIT OF THE AGENT CASHIER WAS MADE APPROXIMATELY TWO DAYS SUBSEQUENT TO ACCEPTANCE OF THESE FUNDS WHICH REVEALED NO MISSING MONIES.

"THE LOSS WAS NOT REPORTED TO THE FISCAL OFFICER UNTIL JANUARY 23, 1980 AT WHICH TIME AN EXTENSIVE SEARCH WAS MADE AND THE PROPER AUTHORITIES NOTIFIED, INCLUDING THE FBI. THE FBI'S REPORT STATED THAT THERE WAS NO PHYSICAL EVIDENCE TO LINK A SPECIFIC INDIVIDUAL TO THIS OFFENSE.

"MS. WALKER *** SEPARATED FROM THE VETERANS ADMINISTRATION ON JUNE 3, 1980. OUR FIELD OFFICE WITHHELD HER FINAL SALARY CHECK IN THE AMOUNT OF $146.33 AND PROCESSED SF 2802, APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS, WHICH WILL AMOUNT TO $689.19.

"BECAUSE OF EASY ACCESS TO THE SAFE CONTAINING CASHIER FUNDS (THIS SITUATION HAS BEEN RESOLVED) IT IS OUR OPINION THAT WE CANNOT IN GOOD CONSCIENCE CONTINUE TO HOLD MRS. BAZILE LIABLE."

THE GENERAL ACCOUNTING OFFICE HAS AUTHORITY TO GRANT RELIEF TO FORMER ACCOUNTABLE OFFICERS FOR THE PHYSICAL LOSS OF GOVERNMENT FUNDS IF, AFTER CONSIDERATION OF THE PERTINENT FINDINGS, WE CONCUR WITH THE RECOMMENDATIONS AND DETERMINATIONS OF THE AGENCY HEAD OR HIS APPROPRIATE DESIGNEE:

"*** (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. ***"

31 U.S.C. SEC. 82A-1 (1976).

HOWEVER, WE HAVE NO AUTHORITY TO GRANT RELIEF UNLESS AND UNTIL THE AGENCY MAKES THE REQUISITE DETERMINATIONS. B-188413, JUNE 30, 1977.

YOUR LETTER DOES NOT STATE THAT THESE DETERMINATIONS HAVE BEEN MADE. YET YOU DO STATE THAT CERTAIN COLLECTION ACTIONS WERE TAKEN AGAINST MRS. BAZILE TO RECOUP THE LOSS. THIS SUGGESTS THAT VA VIEWED HER AS RESPONSIBLE FOR THE LOSS RATHER THAN WITHOUT FAULT OR NEGLIGENCE. PARTICULARLY IN THESE CIRCUMSTANCES, WE CANNOT GRANT RELIEF WITHOUT THE NECESSARY STATUTORY DETERMINATIONS BEING EXPLICIT.

IN ADDITION, WE DO NOT HAVE SUFFICIENT INFORMATION FROM YOUR LETTER TO ENABLE US TO EVALUATE THE MERITS OF YOUR REQUEST. WHILE YOU STATE THAT THE INVESTIGATING AGENCY FOUND NO PHYSICAL EVIDENCE TO LINK A SPECIFIC INDIVIDUAL TO THIS OFFENSE, NEITHER THE INVESTIGATIVE REPORT NOR ANY OTHER DOCUMENTS HAVE BEEN SUBMITTED TO THIS OFFICE. NOTHING IN YOUR LETTER INDICATES WHETHER MRS. BAZILE HAD PROPERLY MAINTAINED AND SECURED A LOCK BOX OR A SEPARATE BUILT-IN LOCKING DRAWER WITHIN THE SAFE. NOR DOES THE LETTER INDICATE WHETHER MRS. BAZILE COMPLIED WITH VA REGULATIONS REGARDING THE RECEIPT AND TIMELY DEPOSIT OF CASH FUNDS IN GENERAL OR PAYMENTS ON DELINQUENT VA LOAN GUARANTY MORTGAGES IN PARTICULAR. IT IS NOT EVEN CLEAR WHETHER MRS. BAZILE WAS ACTING CASHIER FOR THE WHOLE TIME FROM DECEMBER 18, 1979, WHEN THE CASH WAS ACCEPTED, UNTIL JANUARY 23, 1980, WHEN THE LOSS WAS REPORTED TO THE FISCAL OFFICER.

IN SUMMARY, THIS OFFICE CANNOT ACT ON YOUR REQUEST FOR RELIEF OF MRS. BAZILE UNLESS AND UNTIL VA EXPLICITLY MAKES THE REQUISITE STATUTORY DETERMINATIONS. SHOULD YOU DECIDE TO RENEW THIS REQUEST FOR HER RELIEF, WE RECOMMEND THAT YOU SUPPLEMENT SUCH A REQUEST WITH THE REQUISITE DETERMINATIONS AND FACTUAL INFORMATION, AS DISCUSSED ABOVE, NECESSARY FOR THIS OFFICE TO DETERMINE THE RELEVANT CIRCUMSTANCES SURROUNDING THE LOSS. IN PARTICULAR, THE NATURE AND SPECIFICS OF THE SHORTCOMINGS IN AGENCY SECURITY NEED TO BE SET FORTH SO THAT WE CAN DETERMINE WHETHER EASY ACCESS TO THE SAFE OR THE ACTS OR OMISSIONS OF MRS. BAZILE WERE THE PROXIMATE CAUSE OF THE LOSS. SEE B-182386, APRIL 24, 1975.

AS YOU KNOW, UNLESS RELIEF IS ULTIMATELY GRANTED UNDER 31 U.S.C. SEC. 82A -1, MRS. BAZILE WILL OWE THE UNITED STATES THE AMOUNT OF THE LOSS. WILL BE VA'S RESPONSIBILITY TO PURSUE COLLECTION ACTION AGAINST HER TO OBTAIN THE BALANCE OF THE $1,773.04 LOSS NOT ALREADY WITHHELD OR COLLECTED FROM HER, IN ACCORDANCE WITH THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 31 U.S.C. SECS. 951-953 (1976), AND THE IMPLEMENTING JOINT REGULATIONS ISSUED BY THE ATTORNEY GENERAL AND COMPTROLLER GENERAL, 4 C.F.R. PARTS 101-105 (1981).