A-19969, NOVEMBER 1, 1927, 7 COMP. GEN. 303

A-19969: Nov 1, 1927

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1927: THERE IS FOR CONSIDERATION BY THIS OFFICE THE CLAIM OF JAMES E. FOR REFUND OF THE AMOUNT TO HIS CREDIT IN THE CIVIL RETIREMENT FUND WHICH IS REPORTED BY THE COMMISSIONER OF PENSIONS TO AMOUNT. ALLEGING THE CLAIMANT TO HAVE BEEN RESPONSIBLE FOR THE LOSS OR EMBEZZLEMENT OF C.O.D. THE ONLY EVIDENCE SUBMITTED BY THE POST OFFICE DEPARTMENT IS TO THE EFFECT THAT CLAIMANT DELAYED FOR SEVERAL DAYS IN A NUMBER OF CASES IN TURNING IN AMOUNTS COLLECTED FROM C.O.D. PARCELS FROM WHICH THE POSTAL INSPECTORS DEDUCE THAT HE MADE USE OF THE FUNDS SO COLLECTED IN THE MEANTIME AND THAT HE IS ALSO RESPONSIBLE FOR THE COLLECTIONS FOR WHICH THE GOVERNMENT HAS BEEN REQUIRED TO PAY INDEMNITY. IT APPEARS THAT THE MATTER WAS PRESENTED TO A GRAND JURY WHICH FAILED TO RETURN AN INDICTMENT.

A-19969, NOVEMBER 1, 1927, 7 COMP. GEN. 303

RETIREMENT REFUNDS - SET-OFF - POSTAL SERVICE AN ADMINISTRATIVE REPORT ALLEGING A FORMER POSTAL EMPLOYEE TO BE GUILTY OF EMBEZZLEMENT AND LIABLE FOR COLLECTIONS UPON A NUMBER OF C.O.D. PACKAGES, CAN NOT BE ACCEPTED AS ESTABLISHING A PRIMA FACIE CASE OR WARRANTING THE WITHHOLDING OF ANY FUNDS TO THE CREDIT OF THE EMPLOYEE IN THE RETIREMENT FUND, WHERE THE CASE HAS ALREADY BEEN PRESENTED TO A GRAND JURY WHICH FAILED TO RETURN AN INDICTMENT, AND A CIVIL SUIT AGAINST THE EMPLOYEE AND SURETY HAS BEEN DISMISSED FOR LACK OF ANY DIRECT EVIDENCE, AND THE POST OFFICE DEPARTMENT SUBMITS NO REAL EVIDENCE OF THE EMPLOYEE'S RESPONSIBILITY FOR THE GOVERNMENT'S LOSSES.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 1, 1927:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE CLAIM OF JAMES E. BLOYS, FORMER POSTAL EMPLOYEE, FOR REFUND OF THE AMOUNT TO HIS CREDIT IN THE CIVIL RETIREMENT FUND WHICH IS REPORTED BY THE COMMISSIONER OF PENSIONS TO AMOUNT, WITH INTEREST, TO $269.94. THE POST OFFICE DEPARTMENT HAS ASSERTED A CLAIM AGAINST THIS SUM, ALLEGING THE CLAIMANT TO HAVE BEEN RESPONSIBLE FOR THE LOSS OR EMBEZZLEMENT OF C.O.D. COLLECTIONS AGGREGATING $1,211.87, AND MONEY-ORDER FEES AMOUNTING TO $7.99.

CLAIMANT HAS FILED A DENIAL OF ANY RESPONSIBILITY WHATEVER FOR THE LOSSES, AND THE ONLY EVIDENCE SUBMITTED BY THE POST OFFICE DEPARTMENT IS TO THE EFFECT THAT CLAIMANT DELAYED FOR SEVERAL DAYS IN A NUMBER OF CASES IN TURNING IN AMOUNTS COLLECTED FROM C.O.D. PARCELS FROM WHICH THE POSTAL INSPECTORS DEDUCE THAT HE MADE USE OF THE FUNDS SO COLLECTED IN THE MEANTIME AND THAT HE IS ALSO RESPONSIBLE FOR THE COLLECTIONS FOR WHICH THE GOVERNMENT HAS BEEN REQUIRED TO PAY INDEMNITY.

IT APPEARS THAT THE MATTER WAS PRESENTED TO A GRAND JURY WHICH FAILED TO RETURN AN INDICTMENT. CIVIL SUIT WAS ALSO INSTITUTED AGAINST THE CLAIMANT AND HIS SURETY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, AT LAW NO. 3731, AND WAS DISMISSED FOR FAILURE TO FURNISH ANY DIRECT EVIDENCE OF THE RESPONSIBILITY OF THE CLAIMANT FOR THE MISSING FUNDS. THE SOLICITOR OF THE POST OFFICE DEPARTMENT, WHEN ADVISED OF THE DECISION OF THE LOWER COURT, RECOMMENDED THAT NO APPEAL BE FILED AND THAT THE CASE BE CLOSED, WHICH WAS ACCORDINGLY DONE.

IN VIEW OF THE FAILURE OF THE COURT PROCEEDINGS, BOTH CRIMINAL AND CIVIL, AND THE LACK OF ANY DIRECT EVIDENCE OF CLAIMANT'S RESPONSIBILITY FOR THE MISSING FUNDS, THE ADMINISTRATIVE REPORT CAN NOT BE ACCEPTED AS ESTABLISHING A PRIMA FACIE CASE, NOR DOES IT WARRANT THE FURTHER WITHHOLDING FROM THE CLAIMANT OF THE AMOUNT TO HIS CREDIT IN THE RETIREMENT FUND.