B-154627, JUL. 16, 1965

B-154627: Jul 16, 1965

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HE IS REPORTED TO HAVE ORALLY CONFESSED TO THE EMBEZZLEMENT TO CONSULAR OFFICERS. WAS IN EFFECT WHEN MR. THAT THE PRACTICE WAS CONTINUED BY HIM. WHICH WERE ENDORSED BY THE CONSULATE'S PRINCIPAL OFFICER AND SO REPORTED TO THE DEPARTMENT. NO OBJECTION TO THE PRACTICE WAS EVER RECEIVED FROM THE DEPARTMENT. AKHTAR WAS IN CONTRAVENTION OF HIS OFFICIAL RESPONSIBILITIES FOR THE FUNDS IN HIS CUSTODY. A CLASS "A" CASHIER IS DEFINED IN THE FOREIGN SERVICE MANUAL IN EFFECT AT THAT TIME. IS ACCOUNTABLE IN HIS OWN NAME TO THE OFFICER FROM WHOM HE RECEIVES THE ADVANCE. A PRACTICALLY IDENTICAL DEFINITION IS CONTAINED IN THE CURRENT FOREIGN AFFAIRS MANUAL. AKHTAR WAS NOT MR. AN ALTERNATE IS STATED TO BE A SUBSTITUTE WHO ACTS ONLY IN THE ABSENCE OF THE CASHIER.

B-154627, JUL. 16, 1965

TO THE SECRETARY OF STATE:

BY LETTER OF JUNE 19, 1964, THE HONORABLE DWIGHT J. PORTER, ASSISTANT SECRETARY OF STATE, REQUESTED THAT CONSIDERATION BE GIVEN TO GRANTING RELIEF UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF AUGUST 1, 1947, CH. 441, 61 STAT. 720, AS AMENDED BY THE ACT OF AUGUST 9, 1955, CH. 694, 69 STAT. 626, 31 U.S.C. 82A-1, TO L. RICHARD JACKSON, CLASS "A" CASHIER AT PESHAWAR, PAKISTAN, FOR A SHORTAGE IN HIS OPERATING CASH ADVANCE FUND OF RUPEES 6,225.63, EQUIVALENT TO $1,316.20, RESULTING FROM EMBEZZLEMENT BY ONE MALIK K. B. AKHTAR, A LOCAL EMPLOYEE OF THE CONSULATE. SUBSEQUENT CORRESPONDENCE IN THE MATTER INDICATES THAT THE SHORTAGE HAS BEEN REDUCED TO RUPEES 5,351.13 ($1,131.32) BY SET-OFF OF THE FINAL SALARY AND UNPAID ANNUAL LEAVE DUE MR. AKHTAR.

THE RECORD BEFORE OUR OFFICE DISCLOSES THAT MR. JACKSON, THE CLASS "A" CASHIER AT PESHAWAR, PAKISTAN, ADVANCED FUNDS FROM JANUARY 1962 TO MAY 1963, TO MR. AKHTRAR, THE ADMINISTRATIVE ASSISTANT AT THE POST, WITH WHICH TO MAKE SOME OF THE PETTY CASH DISBURSEMENTS AND PRACTICALLY ALL OF THE PETTY CASH ADVANCES TO THE UNITED STATES INFORMATION CENTER (USIC) OF PESHAWAR FOR THEIR OPERATING EXPENSES. A COUNT OF SUCH ADVANCES, MADE ON MAY 11, 1963, INDICATED A SHORTAGE. A SUBSEQUENT INVESTIGATION DISCLOSED THAT MR. AKHTAR HAD EMBEZZLED SOME OF THE FUNDS ADVANCED TO HIM BY MR. JACKSON BY LISTING IN HIS LEDGER ALLEGED ADVANCES TO USIC WHICH HE HAD NOT MADE. HE IS REPORTED TO HAVE ORALLY CONFESSED TO THE EMBEZZLEMENT TO CONSULAR OFFICERS.

THE RECORD ALSO SHOWS THAT THE PRACTICE OF MAKING SMALL ADVANCES TO THE LOCAL ADMINISTRATIVE ASSISTANT FOR THE PURPOSE OF PAYING BILLS ON BEHALF OF THE AGENT OFFICER, LATER THE CLASS "A" CASHIER, WAS IN EFFECT WHEN MR. JACKSON ASSUMED RESPONSIBILITY FOR THE ACCOUNT ON JANUARY 2, 1962, AND THAT THE PRACTICE WAS CONTINUED BY HIM. THE RECORD FURTHER INDICATES THAT THIS PROCEDURE HAD THE APPROVAL OF RESPONSIBLE OFFICIALS OF THE POST AND THE DEPARTMENT, AS EVIDENCED BY THE FACT THAT MR. JACKSON, IN HIS ADDITIONAL CAPACITY AS THE POST ADMINISTRATIVE OFFICER ISSUED NEW OPERATING PROCEDURES TO THIS EFFECT ON NOVEMBER 17, 1962, WHICH WERE ENDORSED BY THE CONSULATE'S PRINCIPAL OFFICER AND SO REPORTED TO THE DEPARTMENT. NO OBJECTION TO THE PRACTICE WAS EVER RECEIVED FROM THE DEPARTMENT.

NEVERTHELESS, MR. JACKSON'S PRACTICE OF MAKING ADVANCES TO MR. AKHTAR WAS IN CONTRAVENTION OF HIS OFFICIAL RESPONSIBILITIES FOR THE FUNDS IN HIS CUSTODY. A CLASS "A" CASHIER IS DEFINED IN THE FOREIGN SERVICE MANUAL IN EFFECT AT THAT TIME, 5 FSM 094 (P. 15), TL:A-723, FEBRUARY 26, 1960, AS "ONE WHO RECEIVES AN ADVANCE FOR AN IMPREST FUND FROM * * * THE U.S. DISBURSING OFFICER AT A POST ON INSTRUCTIONS FROM THE CHIEF DISBURSING OFFICER, IS ACCOUNTABLE IN HIS OWN NAME TO THE OFFICER FROM WHOM HE RECEIVES THE ADVANCE, AND HAS NOT BEEN AUTHORIZED TO ADVANCE AN IMPREST FUND TO ANOTHER CASHIER EXCEPT HIS ALTERNATE.' A PRACTICALLY IDENTICAL DEFINITION IS CONTAINED IN THE CURRENT FOREIGN AFFAIRS MANUAL, 4 FAM 094 (P. 4), TL:FIN-50, MAY 15, 1964. IT SHOULD BE NOTED THAT MR. AKHTAR WAS NOT MR. JACKSON'S ALTERNATE. AN ALTERNATE IS STATED TO BE A SUBSTITUTE WHO ACTS ONLY IN THE ABSENCE OF THE CASHIER.

IT WOULD ALSO APPEAR THAT MR. JACKSON DID NOT EXERCISE PROPER CARE IN SAFEGUARDING THE FUNDS ADVANCED TO MR. AKHTAR. THE RECORD BEFORE OUR OFFICE CONTAINS A COPY OF AN OPERATIONS MEMORANDUM DATED NOVEMBER 20, 1964, FROM THE AMERICAN CONSUL AT PESHAWAR TO YOUR DEPARTMENT, WHICH STATES IN PARAGRAPH 3 (C) ON PAGE 4 AS FOLLOWS:

"/C) VICE CONSUL JACKSON READILY ACKNOWLEDGED HIS MISTAKE IN NOT VERIFYING AKHTAR'S ALLEGED ADVANCES TO USIC AGAINST AMOUNTS RECORDED IN THE BOOKS OF USIC. JACKSON WAS QUESTIONED ON THIS POINT DURING A HEARING OF THE TRIAL AGAINST AKHTAR IN JUNE 1963, AND STATED "BEFORE THE DISCOVERY OF THE PRESENT EMBEZZLEMENT I NEVER CHECKED THE ACCOUNTS OF THE USIS.' THIS WAS, IN FACT, THE ROOT OF THE PROBLEM AND ULTIMATELY RESPONSIBLE FOR THE FAILURE TO DISCOVER AKTAR'S EMBEZZLEMENT.'

SECTION 82A-1 OF TITLE 31, U.S.C. AUTHORIZES RELIEF OF AN ACCOUNTABLE OFFICER FROM RESPONSIBILITY FOR THE LOSS OF GOVERNMENT FUNDS IF SUCH LOSS OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF SUCH OFFICER, BUT ONLY IF THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER. IN OUR OPINION, MR. JACKSON'S ACTION IN ADVANCING FUNDS TO A SUBORDINATE WHEN HE, AS A CLASS "A" CASHIER, LACKED OFFICIAL AUTHORITY TO DO SO, CONSTITUTES NEGLIGENCE. ALSO, IT IS APPARENT THAT HAD MR. JACKSON COMPLIED WITH THE REGULATIONS AND REFRAINED FROM ADVANCING FUNDS TO MR. AKHTAR, THE EMBEZZLEMENT COULD NOT HAVE OCCURRED. ADDITION, MR. JACKSON WAS NEGLIGENT IN FAILING TO VERIFY MR. AKHTAR'S ALLEGED ADVANCES TO USIC, AND THIS NEGLIGENCE CLEARLY CAUSED THE DELAY IN DETECTING THE EMBEZZLEMENT, AS INDICATED IN THE OPERATIONS MEMORANDUM MENTIONED ABOVE.

HENCE, WE CANNOT CONCUR WITH THE ADMINISTRATIVE DETERMINATION THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MR. JACKSON AND RELIEF MUST BE DENIED. ACTION TO RECOVER ON THE BOND OF MR. AKHTAR SHOULD BE CONTINUED AND, IN THE EVENT SUCH ACTION IS NOT SUCCESSFUL IN A SHORT TIME, STEPS SHOULD BE INSTITUTED AGAINST MR. JACKSON'S BOND IN ORDER TO AVOID THE BAR OF THE STATUTE OF LIMITATIONS.