B-144968, APR. 21, 1961

B-144968, APR. 21, 1961

TO FINANCE AND ACCOUNTING OFFICER, UNITED STATES ARMY:

BY 5TH INDORSEMENT DATED JANUARY 30, 1961, THE CHIEF OF FINANCE FORWARDED UNDER DO.O.NO. A-558, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, YOUR LETTER OF DECEMBER 2, 1960, REQUESTING AN ADVANCE DECISION IN THE MATTER OF A VOUCHER SUBMITTED TO YOU FOR PAYMENT, WHICH VOUCHER IN THE AMOUNT OF $442.70 COVERS SETTLEMENT UNDER THE PROVISIONS OF SECTION 2732, TITLE 10, UNITED STATES CODE, OF THE CLAIM OF ONE LT. COLONEL JOHN DAVIS FOR PROPERTY LOSS SUFFERED BY HIM INCIDENT TO HIS SERVICE. THE CLAIM INVOLVES THE THEFT OF COLONEL DAVIS' PROPERTY FROM NONGOVERNMENT-FURNISHED QUARTERS OVERSEAS BY AN INDIVIDUAL HIRED BY THE COLONEL TO "BABY-SIT" FOR HIM.

SECTION 2732 PROVIDES, IN PERTINENT PART, THAT:

"/A) UNDER SUCH REGULATIONS AS THE SECRETARY OF A MILITARY DEPARTMENT MAY PRESCRIBE, HE OR ANY OFFICER DESIGNATED BY HIM MAY SETTLE AND PAY A CLAIM AGAINST THE UNITED STATES FOR NOT MORE THAN $6,500 BY A CIVILIAN EMPLOYEE OF THAT DEPARTMENT, OR A MEMBER OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS, AS THE CASE MAY BE, FOR DAMAGE TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO HIS SERVICE. IF THE CLAIM

IS SUBSTANTIATED AND THE POSSESSION OF THAT PROPERTY IS DETERMINED TO BE REASONABLE, USEFUL, OR PROPER UNDER THE CIRCUMSTANCES, THE CLAIM MAY BE PAID OR THE PROPERTY REPLACED IN KIND.

"/D) A CLAIM MAY BE ALLOWED UNDER SUBSECTION (A) OR (B) FOR DAMAGE TO, OR LOSS OF, PROPERTY ONLY IF---

"/3) IT WAS NOT CAUSED WHOLLY OR PARTLY BY THE NEGLIGENT OR WRONGFUL ACT OF THE CLAIMANT, HIS AGENT, OR HIS EMPLOYEE.'

PARAGRAPH 6A OF AR25-100, DATED OCTOBER 1, 1959, THE CURRENT REGULATION IMPLEMENTING THE STATUTE, PROVIDES THAT:

"THE FOLLOWING ARE EXAMPLES OF TYPES AND CATEGORIES OF PROPERTY FOR WHICH COMPENSATION WILL NOT BE ALLOWED---

"A. PROPERTY DAMAGED OR LOST, IN WHOLE OR IN PART, AS A RESULT OF ANY NEGLIGENCE OR WRONGFUL ACT OF THE CLAIMANT, OR ANY AGENT OR EMPLOYEE OF THE CLAIMANT ACTING IN THE SCOPE OF EMPLOYMENT.'

COLONEL DAVIS' CLAIM WAS ALLOWED BY A PROPERLY DESIGNATED AUTHORITY ON THE BASIS OF PARAGRAPH 6A OF AR25-100 IN THAT THE EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE COMMITTED THE THEFT. YOU RAISE TWO QUESTIONS:

"DOES A DISBURSING OFFICER HAVE THE AUTHORITY AND RESPONSIBILITY FOR QUESTIONING THE LEGAL SUFFICIENCY OF A VOUCHER PRESENTED TO HIM FOR PAYMENT UNDER AUTHORITY GRANTED TO THE CERTIFYING OFFICER BY VIRTUE OF 28 U.S.C. 2672 AS AMENDED, OR IS THE CERTIFICATION OF THE PROPERLY APPOINTED CERTIFYING OFFICER CONCLUSIVE AND REQUIRE DISBURSEMENT IRRESPECTIVE OF DOUBTS BY THE DISBURSING OFFICER OF THE LEGAL SUFFICIENCY OF FACTS SUPPORTING THE VOUCHER?

"WHERE A LOSS HAS OCCURRED AS A RESULT OF THE ILLEGAL ACT OF A SERVANT OF THE CLAIMANT CAN THE PRINCIPAL AGENT RELATIONSHIP BE CONSIDERED TO EXIST AND IF SO CAN THE AGENT (SERVANT) IN COMMITTING AN ILLEGAL ACT BE CONSIDERED TO BE ACTING BEYOND THE SCOPE OF HIS EMPLOYMENT THEREBY RESULTING IN NEGATING THE PROHIBITION CONTAINED IN 10 U.S.C. 2733 (AT PG. 1124) 3B (4) PRECLUDING PAYMENT?

(AS THE CLAIM INVOLVED WAS SETTLED UNDER 10 U.S.C. 2732, IT IS ASSUMED THAT YOUR REFERENCE TO THE PROVISIONS OF 28 U.S.C. 2672 (FEDERAL TORT CLAIMS PROCEDURE) WAS INTENDED TO BE A REFERENCE TO 10 U.S.C. 2732 (A), QUOTED ABOVE, AND THAT YOUR REFERENCE TO THE PROVISIONS OF 10 U.S.C. 2733 WAS INTENDED TO BE A REFERENCE TO 10 U.S.C. 2732 (D) (3), ALSO QUOTED ABOVE).

WITH RESPECT TO THE FIRST QUESTION RAISED, IT MAY BE STATED WITHOUT EQUIVOCATION THAT A DISBURSING OFFICER, ENTRUSTED WITH THE CARE OF PUBLIC FUNDS AND UNDER THE DUTY TO DISBURSE THEM ONLY FOR LEGAL OBJECTS, IS ALWAYS RESPONSIBLE FOR RESOLVING ANY DOUBTS HE MAY HAVE REGARDING THE LEGAL SUFFICIENCY OF A VOUCHER PRESENTED TO HIM FOR PAYMENT. CONCERNING HIS AUTHORITY TO RAISE QUESTION AS TO THE PROPRIETY OF PAYING ANY PARTICULAR VOUCHER BEFORE HIM, THERE IS NO STATUTE ABROGATING HIS RIGHT TO APPLY FOR AN ADVANCE DECISION UNDER THE FOLLOWING PROVISIONS OF 31 U.S.C. 74:

"* * * DISBURSING OFFICER, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER GENERAL SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED, SHALL GOVERN THE GENERAL ACCOUNTING OFFICE IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT.'

AS TO THE SECOND QUESTION PRESENTED, IT IS CLEAR THAT AN EMPLOYEE HIRED TO "BABY-SIT" IS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE COMMITS A THEFT OF HIS EMPLOYER'S PROPERTY. THERE IS THUS A BASIS FOR CONCLUDING THAT THE EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN COLONEL DAVIS AND HIS "BABY-SITTER" TERMINATED WITH THE THEFT AND THAT THE PROPERTY LOSS WAS NOT CAUSED BY THE WRONGFUL ACT OF THE CLAIMANT'S AGENT OR EMPLOYEE. SEE 3 C.J.S., AGENCY, SEC. 255; ID. 258; HOME INDEMNITY CO. V. STATE BANK OF FORT DODGE, 8 N.W.2D 757, 773 (1943). SUCH AN INTERPRETATION OF THE FACTS IN THE MATTER ACCORDS WITH THE INTERPRETATION OF THE BASIC STATUTE UNDERLYING THE PROVISIONS OF PARAGRAPH 6A OF AR25-100.

WHILE THERE MAY BE ROOM FOR QUESTIONING THE APPLICABILITY OF THE "SCOPE OF EMPLOYMENT" CONCEPT ENUNCIATED IN AR25-100 TO THE EMPLOYEE PROVISIONS OF 10 U.S.C. 2732 (D) (3), THE CONCEPT HAS BEEN APPLIED CONSISTENTLY OVER A PERIOD OF MANY YEARS BY THE SECRETARY OF THE ARMY AND THE SECRETARY OF THE AIR FORCE AS WELL AND CANNOT BE SAID TO BE WITHOUT SUBSTANTIAL MERIT. SEE AFR 112-7. UNDER THESE CIRCUMSTANCES AND IN VIEW OF THE PROVISIONS OF 10 U.S.C. 2735 THAT "NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE SETTLEMENT OF A CLAIM UNDER SECTION 2732 * * * OF THIS TITLE IS FINAL AND CONCLUSIVE," THIS OFFICE, WITHOUT DECIDING THE RELATIVE MERITS OF THE "SCOPE OF EMPLOYMENT" CONCEPT AS APPLIED, WILL INTERPOSE NO OBJECTION TO THE CONCEPT OR TO THE INSTANT CLAIM AS SETTLED THEREUNDER.

YOUR QUESTIONS ARE ANSWERED ACCORDINGLY, AND THE VOUCHER SUBMITTED BY YOU, TOGETHER WITH OTHER PERTINENT DOCUMENTS, IS RETURNED AND MAY BE PAID IF OTHERWISE CORRECT.