B-123439, MAR. 30, 1956

B-123439: Mar 30, 1956

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RA 32229643: REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. WAS APPLIED AS A PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS TO THE UNITED STATES. WHILE YOU WERE SERVING AS ASSISTANT U.S. YOU STATE IN YOUR LETTER THAT YOU BELIEVE THAT "THERE IS NO EVIDENCE WHATSOEVER UPON WHICH TO BASE AN ADMINISTRATIVE OR JUDICIAL FINDING AS TO MY OFFICIAL LIABILITY.'. A DISBURSING OFFICER IS AN INSURER OF PUBLIC FUNDS AND IS EXCUSABLE ONLY FOR LOSSES DUE TO ACTS OF GOD OR THE PUBLIC ENEMY. THIS LIABILITY IS UNAFFECTED BY ANY LACK OF NEGLIGENCE ON THE PART OF THE DISBURSING OFFICER OR EVIDENCE ESTABLISHING HE PARTICIPATED IN THE FUNDS OR THAT THE LOSS RESULTED FROM HIS FAULT. WHILE YOU WERE AN ASSISTANT DISBURSING OFFICER AT THE TIME OF THE LOSS INVOLVED.

B-123439, MAR. 30, 1956

TO MR. NORMAN S. ABRAMSON, RA 32229643:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1956, REQUESTING REVIEW OF SETTLEMENT OF AUGUST 2, 1955, WHEREBY THE AMOUNT OF $1,265.63, DUE YOU AS SALARY AND REIMBURSEMENT OF TRAVEL EXPENSES UPON YOUR TERMINATION AS AN EMPLOYEE OF THE DEPARTMENT OF STATE, WAS APPLIED AS A PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS TO THE UNITED STATES.

YOUR INDEBTEDNESS AROSE BY REASON OF YOUR OFFICIAL ACCOUNTABILITY FOR A SHORTAGE OF 45,475.50 AUSTRIAN SCHILLINGS ($1,749.06) WHICH OCCURRED OCTOBER 29, 1953, WHILE YOU WERE SERVING AS ASSISTANT U.S. DISBURSING OFFICER AT VIENNA, AUSTRIA, AS REPORTED IN THE STATEMENT OF BALANCES IN THE ACCOUNTS OF VICTOR H. LOFTUS, AS OF OCTOBER 31, 1953. YOU STATE IN YOUR LETTER THAT YOU BELIEVE THAT "THERE IS NO EVIDENCE WHATSOEVER UPON WHICH TO BASE AN ADMINISTRATIVE OR JUDICIAL FINDING AS TO MY OFFICIAL LIABILITY.'

A DISBURSING OFFICER IS AN INSURER OF PUBLIC FUNDS AND IS EXCUSABLE ONLY FOR LOSSES DUE TO ACTS OF GOD OR THE PUBLIC ENEMY. UNITED STATES V. THOMAS, 15 WALL. 377. THIS LIABILITY IS UNAFFECTED BY ANY LACK OF NEGLIGENCE ON THE PART OF THE DISBURSING OFFICER OR EVIDENCE ESTABLISHING HE PARTICIPATED IN THE FUNDS OR THAT THE LOSS RESULTED FROM HIS FAULT. UNITED STATES V. PRESCOTT, 3 HOW. 578; SMYTHE V. UNITED STATES, 188 U.S. 156; 18 COMP. GEN. 639. WHILE YOU WERE AN ASSISTANT DISBURSING OFFICER AT THE TIME OF THE LOSS INVOLVED, IT APPEARS THAT THE PRINCIPAL DISBURSING OFFICER AT VIENNA, MR. VICTOR H. LOFTUS, HAD BEEN TEMPORARILY ASSIGNED TO OTHER DUTIES AND HAD NO DIRECT SUPERVISION OF THE DISBURSING FUNCTIONS, WHICH WERE LEFT TO YOU. YOU THEREFORE APPEAR TO HAVE THE SAME LIABILITY AS A DISBURSING OFFICER FOR THE LOSS INVOLVED. THIS IS BROUGHT OUT IN SUBPARAGRAPH "E," SECTION 022.11, FOREIGN SERVICE MANUAL, IN EFFECT AT THE TIME OF THE LOSS, WHICH PROVIDED AS FOLLOWS:

"E. DISBURSING OFFICER

"THE DISBURSING OFFICER IS RESPONSIBLE FOR SAFEGUARDING AND ACCOUNTING FOR ALL MONEYS RECEIVED BY HIM AND FOR MAKING DISBURSEMENTS IN ACCORDANCE WITH EXISTING LAWS, REGULATIONS, AND INSTRUCTIONS. THIS APPLIES TO ASSISTANT DISBURSING OFFICERS ACTING IN THE ABSENCE OF THE DISBURSING OFFICER.'

AT THE TIME OF THE SHORTAGE OF FUNDS, YOU, AS ASSISTANT DISBURSING OFFICER, ACTING DURING THE TEMPORARY ASSIGNMENT OF THE DISBURSING OFFICER TO OTHER DUTIES, WERE OFFICIALLY ACCOUNTABLE FOR THE SHORTAGE OF FUNDS. ALSO, IT IS WELL ESTABLISHED THAT AN AMOUNT DUE THE UNITED STATES MAY BE WITHHELD FROM AN AMOUNT OTHERWISE DUE CLAIMANT FROM THE UNITED STATES. COMP. GEN. 605; 16 ID. 161.

ACCORDINGLY, AND IN THE ABSENCE OF THE ADMINISTRATIVE FINDINGS AND RECOMMENDATIONS FOR YOUR RELIEF UNDER PUBLIC LAW 334, APPROVED AUGUST 9, 1955, 69 STAT. 626, AND WE UNDERSTAND NO SUCH ADMINISTRATIVE FINDINGS AND RECOMMENDATIONS ARE CONTEMPLATED TO BE MADE, WE HAD NO ALTERNATIVE BUT TO APPLY THE AMOUNT FOUND DUE YOU AS FINAL SALARY AND TRAVEL EXPENSES AGAINST THE AMOUNT OF THE SHORTAGE AND SUCH ACTION IS SUSTAINED.

IN THE ABSENCE OF RELIEF BEING GRANTED TO YOU UNDER PUBLIC LAW 334 WE ARE UNABLE TO ADVISE YOU OF ANY COURSE OPEN TO YOU TO SECURE PAYMENT OF THE AMOUNT OFFSET ON YOUR DEBT. WHILE THE COURT OF CLAIMS, UNDER 28 U.S.C. 1496 AND 2512, HAS JURISDICTION TO GRANT DISBURSING OFFICERS RELIEF FROM RESPONSIBILITY FOR CERTAIN LOSSES FOR WHICH THEY ARE ACCOUNTABLE, YOUR ATTENTION IS INVITED TO HALL'S CASE, 9 C.CLS. 270, HOLDING THAT SUCH RELIEF IS POSSIBLE ONLY AS TO AMOUNTS FOR WHICH SUCH OFFICERS WERE AND ARE HELD RESPONSIBLE AND HAS NO APPLICATION WHERE THE AMOUNT OF THE LOSS HAS BEEN COLLECTED.