A-98003, DECEMBER 8, 1938, 18 COMP. GEN. 524

A-98003: Dec 8, 1938

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SET-OFF - RETIREMENT DEDUCTIONS - CONJECTURAL LOSSES TO UNKNOWN PARTIES SET-OFF OF AN AMOUNT TO THE CREDIT OF A FORMER POSTAL EMPLOYEE IN THE RETIRMENT FUND IS UNAUTHORIZED WHERE THE LOSS ADMINISTRATIVELY REQUESTED TO BE SO LIQUIDATED IS CONJECTURAL AND BASED ON THE PRESUMPTION THAT THE EMPLOYEE RETAINED EXCESS REMITTANCES FOR POSTAGE DUE ON MAIL FOR AT LEAST A YEAR PRIOR TO HIS APPREHENSION. THE LOSS IS ONE OF VARIOUS AND SUNDRY UNKNOWN POST-OFFICE PATRONS INSTEAD OF ONE SUSTAINED BY THE GOVERNMENT. SCHOENFELD WAS ASSIGNED TO THE OFFICIAL MAIL DESK IN THE INQUIRY SECTION AND THAT ONE OF HIS DUTIES WAS TO OPEN OFFICIAL MAIL ADDRESSED TO SAID SECTION. IT IS SHOWN. IT IS STATED TO BE THE PRACTICE OF THE NEW YORK OFFICE IN SUCH INSTANCES TO RETURN TO THE SENDER ANY EXCESS AMOUNT SO REMITTED.

A-98003, DECEMBER 8, 1938, 18 COMP. GEN. 524

SET-OFF - RETIREMENT DEDUCTIONS - CONJECTURAL LOSSES TO UNKNOWN PARTIES SET-OFF OF AN AMOUNT TO THE CREDIT OF A FORMER POSTAL EMPLOYEE IN THE RETIRMENT FUND IS UNAUTHORIZED WHERE THE LOSS ADMINISTRATIVELY REQUESTED TO BE SO LIQUIDATED IS CONJECTURAL AND BASED ON THE PRESUMPTION THAT THE EMPLOYEE RETAINED EXCESS REMITTANCES FOR POSTAGE DUE ON MAIL FOR AT LEAST A YEAR PRIOR TO HIS APPREHENSION, AND THE LOSS IS ONE OF VARIOUS AND SUNDRY UNKNOWN POST-OFFICE PATRONS INSTEAD OF ONE SUSTAINED BY THE GOVERNMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, DECEMBER 8, 1938:

THE UNITED STATES CIVIL SERVICE COMMISSION HAS REFERRED TO THIS OFFICE FOR INSTRUCTIONS THE CLAIM OF MAX SCHOENFELD, FORMER CLERK, GENERAL POST OFFICE, NEW YORK, N.Y., FOR REFUND OF RETIREMENT DEDUCTIONS REPORTED TO BE $1,383.94, FROM WHICH AMOUNT THE CHIEF INSPECTOR OF YOUR DEPARTMENT REQUESTS THERE BE SET OFF $61.06 BECAUSE OF SCHOENFELD'S ALLEGED MISAPPROPRIATION OF FUNDS COMING INTO HIS POSSESSION IN THE COURSE OF HIS OFFICIAL DUTIES.

THE RECORD SHOWS THAT ON JANUARY 8, 1938, AND FOR APPROXIMATELY 2 YEARS PRIOR TO SAID DATE, SCHOENFELD WAS ASSIGNED TO THE OFFICIAL MAIL DESK IN THE INQUIRY SECTION AND THAT ONE OF HIS DUTIES WAS TO OPEN OFFICIAL MAIL ADDRESSED TO SAID SECTION. SOME OF THE MAIL, IT IS SHOWN, CONTAINED POSTAGE DUE REMITTANCES IN THE FORM OF COINS AND POSTAGE STAMPS, IN SOME INSTANCES PATRONS REMITTING AMOUNTS IN COINS OR POSTAGE STAMPS IN EXCESS OF THE AMOUNT OF POSTAGE DUE REQUIRED. IT IS STATED TO BE THE PRACTICE OF THE NEW YORK OFFICE IN SUCH INSTANCES TO RETURN TO THE SENDER ANY EXCESS AMOUNT SO REMITTED, THE OFFICE RETAINING ONLY THE AMOUNT REQUIRED TO COVER THE POSTAGE DUE, BUT ON THE DATE ABOVE MENTIONED, JANUARY 8, 1938, SCHOENFELD WAS OBSERVED TO MANIPULATE SEVERAL STAMP AND COIN REMITTANCES IN SUCH MANNER AS TO ENABLE HIM TO APPROPRIATE AN EXCESS REFUND OF 14 CENTS. AS A RESULT OF THE ABOVE OBSERVATION A TEST LETTER WAS PREPARED ON JANUARY 10, 1938, CONTAINING CARD FORM 3548 INDICATING 13 1/2 CENTS POSTAGE DUE ON A LETTER ADDRESSED TO E. A. KNORR, CENTRAL NEWS OF AMERICA, 804 17TH STREET, WASHINGTON, D.C. ATTACHED TO THE CARD BY TRANSPARENT ADHESIVE TAPE WERE TWO 10-CENT PIECES. SAID LETTER WAS PLACED IN THE MAIL SO AS TO REACH SCHOENFELD AND ON IT REACHING HIM HE WAS OBSERVED TO OPEN IT, EXTRACT THEREFROM THE TWO COINS WHICH IT IS STATED HE PLACED IN HIS POCKET. IN THE PLACE OF THE COINS SCHOENFELD ATTACHED TO THE CARD 14 CENTS IN STAMPS. AT THE CONCLUSION OF HIS TOUR OF DUTY HE WAS TAKEN INTO CUSTODY AND THERE WAS FOUND AMONG THE CONTENTS OF HIS POCKET ONE OF THE 10 -CENT PIECES FORMERLY ATTACHED TO THE CARD, THE OTHER ONE BEING TURNED IN TO THE SUPERINTENDENT OF THE INQUIRY SECTION HAVING BEEN FOUND IN MAIL DEPOSITED ON THE DESK OF ANOTHER CLERK BY SCHOENFELD IN THE ROUTINE OF HIS DUTIES. SCHOENFELD WAS HELD UNDER BOND AND THE MATTER PRESENTED TO THE FEDERAL GRAND JURY BUT SAID JURY DECLINED TO RETURN A TRUE BILL AND THE INSPECTOR HAS ADVISED AGAINST PRESENTATION OF THE MATTER AGAIN.

THE RECORD FURTHER SHOWS THAT NUMEROUS SMALL ITEMS APPARENTLY FOUND LOOSE IN THE MAILS HAD BEEN APPROPRIATED BY SCHOENFELD TO HIS OWN USE, SEVERAL OF SAID ARTICLES BEING RECOVERED WHEN HE WAS TAKEN INTO CUSTODY, BUT IT IS NOTED THAT THE GOVERNMENT'S CLAIM FOR SET-OFF IS BASED ENTIRELY ON THE PRESUMPTION THAT SCHOENFELD RETAINED EXCESS REMITTANCES FOR POSTAGE DUE ON MAIL FOR AT LEAST A YEAR PRIOR TO HIS APPREHENSION, IT BEING APPROXIMATED THAT DURING THAT TIME HE AVERAGED 20 CENTS A DAY THROUGH THESE PECULATIONS, OR A TOTAL OF $61.20. FROM THIS AMOUNT THE CHIEF INSPECTOR DEDUCTED 14 CENTS, THE AMOUNT ADMITTED BY SCHOENFELD TO HAVE BEEN TAKEN BY HIM ON JANUARY 8, 1938, AND LATER RETURNED BY HIM, LEAVING A TOTAL CLAIM FOR SET-OFF OF $61.06.

IN HIS REPORT OF FEBRUARY 11, 1938, THE POST OFFICE INSPECTOR STATED:

I HAVE DISCUSSED THE POSSIBILITY OF CHARGING TO SCHOENFELD'S DEPREDATIONS, LOSSES BEARING ON THE INQUIRY SECTION WITH MR. JOHN ROLFE, ASSISTANT SUPERINTENDENT OF MAILS IN CHARGE OF THE INQUIRY SECTION, AND HIS IMMEDIATE ASSISTANTS. FROM THE MATTER RECOVERED AT SCHOENFELD'S HOME, THEY INFORMED ME THAT HE APPARENTLY CONFINED HIS ACTIVITY TO THESE ITEMS FOUND LOOSE IN THE MAILS, WHICH ARE REFERRED TO THE INQUIRY SECTION; THAT ONLY IN RARE INSTANCES ARE THEY ABLE TO ASSOCIATE ITEMS OF THIS CHARACTER WITH INQUIRIES MADE FOR LOST MAIL MATTER; THAT SO FAR AS THE RECORDS OF THE INQUIRY SECTION DISCLOSE, THEY FIND NO LOSSES TRACEABLE TO SCHOENFELD'S MISPRACTICES. PERSONALLY I FIND NO LOSSES BEARING ON THE INQUIRY SECTION OF THE NEW YORK, N.Y., POST OFFICE, WHICH I COULD CONSCIENTIOUSLY CHARGE TO SCHOENFELD.

SUBSEQUENT TO THIS REPORT IT APPEARS THE CHIEF INSPECTOR'S OFFICE REOPENED THE CASE AND RETURNED IT TO THE FIELD FOR THE PURPOSE OF HAVING PREPARED AN ESTIMATE OF THE AMOUNT OF POSTAGE DUE ITEMS EMBEZZLED BY SCHOENFELD. THIS RESULTED IN INSPECTOR'S REPORT OF JUNE 21, 1938, WHEREIN IT WAS STATED,"HE (SCHOENFELD) WAS FIRST OBSERVED INDULGING IN HIS DISHONEST OPERATION ON SATURDAY, JANUARY 8, 1938," AND "THE GOVERNMENT SUFFERED NO LOSS AS THE RESULT OF SCHOENFELD'S MISPRACTICES.' IT WAS FURTHER STATED IN SAID REPORT:

IN AN EFFORT TO ESTABLISH SOME RELIABLE BASIS FOR ESTIMATING THE AMOUNT PROPERLY CHARGEABLE TO SCHOENFELD'S DEPREDATIONS, A DAILY CHECK OF EXCESS POSTAGE STAMP REMITTANCES AND COIN REMITTANCES WERE MAINTAINED IN THE INQUIRY SECTION ON SEVERAL OCCASIONS FOR VARIOUS PERIODS OF TIME. CLERKS ASSIGNED TO THE POSTAGE DUE UNIT WERE LIKEWISE QUESTIONED RELATIVE TO THE AMOUNT OF EXCESS POSTAGE STAMPS AND COIN REMITTANCES RECEIVED PRIOR AAND SUBSEQUENT TO SCHOENFELD'S APPREHENSION. THIS PHASE OF MY INVESTIGATION FAILED TO DEVELOP ANY INFORMATION PERMITTING OF AN ACCURATE ESTIMATE OF THE AMOUNT REALIZED BY SCHOENFELD.

THE CHIEF INSPECTOR'S LETTER DIRECTS THAT AN ESTIMATE OF THE AMOUNT REALIZED BY SCHOENFELD BE PREPARED. SCHOENFELD ACKNOWLEDGES HAVING MISAPPROPRIATED ITEMS FOUND LOOSE IN THE MAILS OVER A PERIOD OF APPROXIMATELY TWO YEARS. IT IS, THEREFORE, CONSIDERED REASONABLE TO BELIEVE HE HAS INDULGED IN THE MISAPPROPRIATION OF COINS FOR AT LEAST A YEAR. IT IS CONSIDERED THAT NO INJUSTICE IS DONE THE FORMER EMPLOYEE IN ESTIMATING THAT HE REALIZED APPROXIMATELY SIXTY DOLLARS AS THE RESULT OF HIS OPERATIONS. THIS AMOUNT IS BASED ON AN AVERAGE DAILY REALIZATION BY SCHOENFELD OF TWENTY CENTS OVER A PERIOD OF 306 DAYS, WHICH TOTALS $61.20.

SCHOENFELD WAS BONDED BY THE UNITED STATES GUARANTY COMPANY, 90 JOHN STREET, THIS CITY, AND HIS SURETY WAS DULY NOTIFIED JANUARY 13, 1938, RELATIVE TO HIS APPREHENSION IN THIS CASE. IN VIEW OF THE MANNER IN WHICH THE ESTIMATE AS TO THE AMOUNT REALIZED BY SCHOENFELD HAS BEEN REACHED, NO DEMAND HAS BEEN MADE ON THE FORMER EMPLOYEE OR HIS SURETY.

IT IS APPARENT THAT THE PECULATIONS OF SCHOENFELD HAVE NOT RESULTED IN A LOSS TO THE GOVERNMENT BUT TO VARIOUS AND SUNDRY UNKNOWN POST OFFICE PATRONS. IT HAS BEEN UNIFORMLY HELD THAT IT IS LEGAL AND PROPER FOR THE GOVERNMENT TO APPLY ANY OR ALL OF AN AMOUNT TO THE CREDIT OF AN EMPLOYEE IN THE RETIREMENT FUND IN LIQUIDATION OF AN INDEBTEDNESS TO THE UNITED STATES. 5 COMP. GEN. 6; ID. 638; 18 ID. 139. HOWEVER, THE ESTIMATED LOSS OF $61.06 IN THE PRESENT CASE IS NOT ONE SUSTAINED BY THE GOVERNMENT AND IN THE CIRCUMSTANCES THERE IS NO AUTHORITY OF LAW TO WITHHOLD THAT AMOUNT FROM THE AMOUNT TO THE CREDIT OF SCHOENFELD IN THE RETIREMENT FUND. ACCORDINGLY, THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, IS BEING ADVISED TODAY THAT THE CLAIM OF YOUR DEPARTMENT AGAINST MAX SCHOENFELD IN THE AMOUNT OF $61.06 HAS NOT BEEN ESTABLISHED, AND THE AMOUNT TO HIS CREDIT IN THE RETIREMENT FUND MAY BE PAID TO HIM IF OTHERWISE CORRECT.