A-19366, MARCH 26, 1928, 7 COMP. GEN. 593

A-19366: Mar 26, 1928

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RETIREMENT DEDUCTIONS - SET-OFF - POSTAL SERVICE PAYMENT TO THE POST OFFICE DEPARTMENT OF AN AMOUNT TO THE CREDIT OF A FORMER POSTAL EMPLOYEE IN THE CIVIL RETIREMENT FUND FOR LOSS SUSTAINED BY THE GOVERNMENT AS INDEMNITY PAID FOR A LOST REGISTERED LETTER IS NOT AUTHORIZED. WHERE IT IS SHOWN THAT THE EMPLOYEE WAS NOT RESPONSIBLE FOR THE LOSS UNLESS HE DID IN FACT STEAL THE LETTER FROM THE CUSTODY OF ANOTHER EMPLOYEE. THERE IS NO DIRECT EVIDENCE THAT HE DID. KIPP AND SWAN WAS APPROVED FOR $50.00 ON JOURNAL DATED AUGUST 3. THE CLAIM OF THE POST OFFICE DEPARTMENT IS BASED ON ADMINISTRATIVE FINDINGS THAT THE FORMER EMPLOYEE STOLE THE REGISTERED PACKAGE FROM THE POST-OFFICE WINDOW OF ANOTHER EMPLOYEE.

A-19366, MARCH 26, 1928, 7 COMP. GEN. 593

RETIREMENT DEDUCTIONS - SET-OFF - POSTAL SERVICE PAYMENT TO THE POST OFFICE DEPARTMENT OF AN AMOUNT TO THE CREDIT OF A FORMER POSTAL EMPLOYEE IN THE CIVIL RETIREMENT FUND FOR LOSS SUSTAINED BY THE GOVERNMENT AS INDEMNITY PAID FOR A LOST REGISTERED LETTER IS NOT AUTHORIZED, WHERE IT IS SHOWN THAT THE EMPLOYEE WAS NOT RESPONSIBLE FOR THE LOSS UNLESS HE DID IN FACT STEAL THE LETTER FROM THE CUSTODY OF ANOTHER EMPLOYEE, AND THERE IS NO DIRECT EVIDENCE THAT HE DID, A JURY HAVING ACQUITTED HIM OF THE CHARGE IN A CRIMINAL PROCEEDING.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 26, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 27, 1927, REQUESTING DECISION WHETHER $50 OF THE SUM OF $242.41 TO THE CREDIT OF FRANK H. BROWNYARD, FORMER RAILWAY POSTAL CLERK, IN THE CIVIL RETIREMENT FUND, MAY BE PAID TO THE POST OFFICE DEPARTMENT TO COVER AN INDEMNITY OF $50 PAID IN THE FOLLOWING-DESCRIBED CASE:

CASE NO. 88791-A, COVERING REGISTERED PACKAGE NO. 65, MAILED JANUARY 6, 1925, AT BUFFALO, N.Y., BY THE FEDERAL RESERVE BRANCH BANK, ADDRESSED TO THE PAVILION BANKING CO., PAVILION, N.Y., CONTAINING $1,500.00 IN CURRENCY. CLAIM OF DELANOY, KIPP AND SWAN WAS APPROVED FOR $50.00 ON JOURNAL DATED AUGUST 3, 1925.

THE CLAIM OF THE POST OFFICE DEPARTMENT IS BASED ON ADMINISTRATIVE FINDINGS THAT THE FORMER EMPLOYEE STOLE THE REGISTERED PACKAGE FROM THE POST-OFFICE WINDOW OF ANOTHER EMPLOYEE. THE FORMER EMPLOYEE IS CONTESTING THE CLAIM OF THE POST OFFICE DEPARTMENT AND HAS MADE APPLICATION FOR THE RETURN OF THE ENTIRE AMOUNT TO HIS CREDIT IN THE RETIREMENT FUND, RECITING THE FACT THAT HE WAS TRIED AND ACQUITTED OF THE CRIME.

THE ESTABLISHED RULE HAS BEEN THAT WHEN THE ADMINISTRATIVE OFFICE CONCERNED HAS MADE OUT A PRIMA FACIE CASE UNDER WHICH AN EMPLOYEE IS FOUND LIABLE OR RESPONSIBLE FOR LOSSES SUSTAINED BY THE GOVERNMENT THE BURDEN IS THEN ON THE EMPLOYEE TO PRESENT FACTS TO OVERCOME THE PRIMA FACIE CASE THUS MADE OUT. BUT SUCH A CASE IS NOT MADE OUT WHEN THE LOSS OR SHORTAGE IS BASED SOLELY ON CIRCUMSTANTIAL EVIDENCE OF THEFTS OF FUNDS OR MAIL WHERE NOTHING HAS BEEN PRESENTED TO SHOW THAT THE ACCUSED EVER HAD THE CUSTODY OF, OR WAS RESPONSIBLE FOR SAID FUNDS OR MAIL, AND THE ACCUSED HAS BEEN TRIED BY A JURY AND ACQUITTED OF THE CHARGE.

THE FACTS DEVELOPED IN THIS CASE BY THE POST-OFFICE INSPECTORS AS CONTAINED IN THEIR REPORTS TENDED TO SHOW THE GUILT OF THE FORMER EMPLOYEE IN QUESTION, BUT ON THE BASIS OF THIS SAME CIRCUMSTANTIAL EVIDENCE HE WAS ACQUITTED BY A JURY. THE THEFT WAS ALLEGED TO HAVE OCCURRED BY THE SUBSTITUTION OF A DUMMY REGISTERED LETTER FOR THE ONE STOLEN FROM A POST- OFFICE WINDOW OF ANOTHER POSTAL EMPLOYEE AT A TIME WHEN THE STOLEN REGISTERED LETTER WAS PRESUMED TO HAVE BEEN IN THE CUSTODY OF THE OTHER EMPLOYEE. AS BROWNYARD WAS IN NO WAY RESPONSIBLE FOR THE GOVERNMENT'S LOSS IN THIS INSTANCE UNLESS HE DID, IN FACT, STEAL THE LETTER WHICH WAS IN THE CUSTODY OF ANOTHER, AND AS HE HAS BEEN ACQUITTED BY A JURY OF THE CHARGE OF SUCH THEFT, THERE WOULD APPEAR TO BE NO AUTHORITY TO DEDUCT ANY PORTION OF THE AMOUNT TO HIS CREDIT IN THE CIVIL RETIREMENT FUND FOR PAYMENT TO THE POST OFFICE DEPARTMENT TO COVER THE AMOUNT PAID AS INDEMNITY ON THE LOST REGISTERED PACKAGE.

ACCORDINGLY, YOU ARE AUTHORIZED TO PAY THE FULL AMOUNT TO HIS CREDIT IN THE CIVIL RETIREMENT FUND TO THE FORMER EMPLOYEE, IN THE ABSENCE OF OTHER OBJECTIONS.