B-166174, FEBRUARY 28, 1969, 48 COMP. GEN. 566

B-166174: Feb 28, 1969

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POST OFFICE DEPARTMENT - EMPLOYEES - LIABILITY RELIEF - FUND SHORTAGES A POSTAL SUPPLY CLERK AT A WHOLESALE STAMP WINDOW WHOSE SHORTAGE OF FUNDS IN HIS FIXED CREDIT ACCOUNTABILITY IS EXPLAINED AS BEING DUE TO HIS BUSYNESS IN EXCHANGING "OLD RATE" FOR "NEW RATE" STOCKS OF STAMPS IS NOT CONSIDERED TO HAVE EXERCISED THE HIGH DEGREE OF CARE THAT IS EXPECTED FROM AN ACCOUNTABLE OFFICER IN THE PERFORMANCE OF DUTY AND. SZABO WAS A SUPPLY CLERK AT THE WHOLESALE STAMP WINDOW IN THE WASHINGTON. SZABO WAS EXTREMELY BUSY FOR A PERIOD OF SEVERAL WEEKS MAKING SUCH EXCHANGES. WERE EXCHANGED BY MR. NOR WAS ANY EXPLANATION FOUND BY THE INVESTIGATION CONDUCTED BY THE POST OFFICE INSPECTORS. SZABO HAS WORKED FOR THE POST OFFICE DEPARTMENT SINCE 1941 WITH A SATISFACTORY WORK HISTORY AND THAT THERE ARE EXTENUATING CIRCUMSTANCES IN THAT THIS IS THE FIRST TIME SUCH EXCHANGE OF STOCK WAS MADE INCIDENT TO AN INCREASE IN POSTAL RATES AND THE SHORT SPAN OF TIME BETWEEN ENACTMENT OF PUBLIC LAW 90-206 AND ITS EFFECTIVE DATE DID NOT ALLOW POST OFFICES SUFFICIENT TIME TO ADEQUATELY STAFF AND SUPPLY THEIR OFFICES TO HANDLE THE TEMPORARY INCREASE IN WORK LOAD.

B-166174, FEBRUARY 28, 1969, 48 COMP. GEN. 566

POST OFFICE DEPARTMENT - EMPLOYEES - LIABILITY RELIEF - FUND SHORTAGES A POSTAL SUPPLY CLERK AT A WHOLESALE STAMP WINDOW WHOSE SHORTAGE OF FUNDS IN HIS FIXED CREDIT ACCOUNTABILITY IS EXPLAINED AS BEING DUE TO HIS BUSYNESS IN EXCHANGING "OLD RATE" FOR "NEW RATE" STOCKS OF STAMPS IS NOT CONSIDERED TO HAVE EXERCISED THE HIGH DEGREE OF CARE THAT IS EXPECTED FROM AN ACCOUNTABLE OFFICER IN THE PERFORMANCE OF DUTY AND, THEREFORE, THE UNEXPLAINED SHORTAGE RAISING A PRESUMPTION OF NEGLIGENCE THAT THE RECORD DOES NOT REBUT, RELIEF FROM LIABILITY FOR THE SHORTAGE MAY NOT BE GRANTED TO THE EMPLOYEE UNDER 39 U.S.C. 2401 OR 31 U.S.C. 82A-1.

TO THE POSTMASTER GENERAL, FEBRUARY 28, 1969:

BY LETTER TO THE CIVIL DIVISION OF OUR OFFICE, DATED DECEMBER 24, 1968, FILE REFERENCE 6:CMC:ALP, MR. C. R. JAUCHEM, DIRECTOR, FINANCIAL SYSTEMS MANAGEMENT DIVISION, BUREAU OF FINANCE AND ADMINISTRATION, POST OFFICE DEPARTMENT, REQUESTED THAT RELIEF BE GRANTED UNDER THE PROVISIONS OF 39 U.S.C. 2401 TO CLERK ROBERT C. SZABO FROM LIABILITY FOR A SHORTAGE OF $4,326.16 IN HIS FIXED CREDIT ACCOUNTABILITY.

MR. SZABO WAS A SUPPLY CLERK AT THE WHOLESALE STAMP WINDOW IN THE WASHINGTON, D.C., POST OFFICE. THE RECORD TRANSMITTED WITH THE LETTER OF DECEMBER 24, 1968, INDICATES THAT EARLY IN JANUARY, 1968, AS A RESULT OF THE POSTAL REVENUE AND FEDERAL SALARY ACT OF 1967, APPROVED DECEMBER 16, 1967, PUBLIC LAW 90-206, 81 STAT. 613, AND THE POSTMASTER GENERAL'S ANNOUNCEMENT THAT "OLD RATE" STOCKS OF STAMPS, ETC., WOULD BE EXCHANGED AT FULL VALUE FOR NEW RATE STOCK, MR. SZABO WAS EXTREMELY BUSY FOR A PERIOD OF SEVERAL WEEKS MAKING SUCH EXCHANGES. THE RECORD STATES THAT VAST QUANTITIES OF STAMPS, ETC., WERE EXCHANGED BY MR. SZABO DURING THAT PERIOD. AN AUDIT OF HIS FIXED CREDIT OF $347,770 DURING THE PERIOD FROM FEBRUARY 26 TO MARCH 1, 1968, DISCLOSED A SHORTAGE AS STATED ABOVE. MR. SZABO CAN FURNISH NO EXPLANATION OF HOW THIS SHORTAGE OCCURRED, NOR WAS ANY EXPLANATION FOUND BY THE INVESTIGATION CONDUCTED BY THE POST OFFICE INSPECTORS. THE LETTER OF DECEMBER 24, 1968, REQUESTS RELIEF SOLELY ON THE BASIS THAT MR. SZABO HAS WORKED FOR THE POST OFFICE DEPARTMENT SINCE 1941 WITH A SATISFACTORY WORK HISTORY AND THAT THERE ARE EXTENUATING CIRCUMSTANCES IN THAT THIS IS THE FIRST TIME SUCH EXCHANGE OF STOCK WAS MADE INCIDENT TO AN INCREASE IN POSTAL RATES AND THE SHORT SPAN OF TIME BETWEEN ENACTMENT OF PUBLIC LAW 90-206 AND ITS EFFECTIVE DATE DID NOT ALLOW POST OFFICES SUFFICIENT TIME TO ADEQUATELY STAFF AND SUPPLY THEIR OFFICES TO HANDLE THE TEMPORARY INCREASE IN WORK LOAD.

AN ACCOUNTABLE OFFICER OF THE GOVERNMENT IS AN INSURER OF THE PUBLIC FUNDS (OR ACCOUNTABLE PAPER SUCH AS THE POSTAGE STAMPS, ETC., HERE INVOLVED) IN HIS CUSTODY AND IS EXCUSABLE ONLY FOR LOSS DUE TO ACTS OF GOD OR THE PUBLIC ENEMY. UNITED STATES V THOMAS, 15 WALL, 337. THIS LIABILITY IS UNAFFECTED BY LACK OF NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER, OR THE ABSENCE OF EVIDENCE THAT HE MISAPPROPRIATED 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 AND CASES CITED THEREIN; B-122688, SEPTEMBER 25, 1956; B 142326, MARCH 31, 1960; B-158699, SEPTEMBER 6, 1968.

HOWEVER, 39 U.S.C. 2401, UNDER WHICH RELIEF IN THIS CASE HAS BEEN REQUESTED, PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) IN ALL CASES OF DISABILITY OR ALLEGED LIABILITY FOR ANY SUM OF MONEY BY WAY OF DAMAGES OR OTHERWISE, UNDER ANY PROVISION OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, THE POSTMASTER GENERAL SHALL DETERMINE WHETHER THE INTERESTS OF THE DEPARTMENT PROBABLY REQUIRE THE EXERCISE OF HIS POWERS OVER THE SAME. UPON THE DETERMINATION THE COMPTROLLER GENERAL WITH THE WRITTEN CONSENT OF THE POSTMASTER GENERAL AND ON SUCH TERMS AS THE POSTMASTER GENERAL DEEMS JUST AND EXPEDIENT, MAY---

(1) REMOVE THE DISABILITY; OR

(2) COMPROMISE, RELEASE, OR DISCHARGE THE CLAIM FOR SUCH SUM OF MONEY AND DAMAGES.

(C) SUBSECTION (B) APPLIES TO CASES INVOLVING BALANCES DUE THE UNITED STATES THROUGH ACCOUNTABILITY FOR PUBLIC MONEYS UNDER ANY PROVISIONS OF LAW IN RELATION TO THE OFFICERS, EMPLOYEES, OPERATIONS, OR BUSINESS OF THE POSTAL SERVICE, EXCEPT CASES COGNIZABLE UNDER SECTION 2403 OF THIS TITLE. OUR DECISION OF JUNE 8, 1927, 6 COMP. GEN. 791, HELD THAT SECTION 409, REVISED STATUTES (PREDECESSOR OF 39 U.S.C. 2401), WAS INTENDED TO AUTHORIZE RELIEF ONLY TO A POSTAL EMPLOYEE WHO SUFFERED A LOSS WITHOUT FAULT OR NEGLIGENCE ON HIS PART. RELIEF MAY BE GRANTED ONLY IN STRICT CONFORMITY WITH THE PROVISIONS OF THE STATUTE AND THE CITED DECISION.

WHILE THERE IS NO POSITIVE OR AFFIRMATIVE EVIDENCE OF NEGLIGENCE ON THE PART OF MR. SZABO IN CONNECTION WITH THIS LOSS, WE HAVE REPEATEDLY HELD THAT POSITIVE OR AFFIRMATIVE EVIDENCE OF NEGLIGENCE IS NOT NECESSARY, AND THAT THE MERE FACT THAT AN UNEXPLAINED SHORTAGE OCCURRED IS, IN AND OF ITSELF, SUFFICIENT TO RAISE AN INFERENCE OR PRESUMPTION OF NEGLIGENCE. GOVERNMENT OFFICIAL CHARGED WITH THE CUSTODY AND HANDLING OF PUBLIC MONEYS (THE STAMPS, ETC., HERE IN QUESTION ARE THE EQUIVALENT OF MONEY AND ARE SO TREATED) IS EXPECTED TO EXERCISE THE HIGHEST DEGREE OF CARE IN THE PERFORMANCE OF HIS DUTY AND, WHEN FUNDS (OR SUCH STAMPS, ETC.) DISAPPEAR WITHOUT EXPLANATION OR EVIDENT REASON, THE PRESUMPTION NATURALLY ARISES THAT THE RESPONSIBLE OFFICIAL WAS DERELICT IN SOME WAY. MOREOVER, GRANTING RELIEF TO GOVERNMENT OFFICIALS FOR UNEXPLAINED LOSSES OR SHORTAGES OF THIS NATURE MIGHT TEND TO MAKE SUCH OFFICIALS LAX IN THE PERFORMANCE OF THEIR DUTIES. B-122688, SEPTEMBER 25, 1956; B-142326, MARCH 31, 1960; B-1559987, SEPTEMBER 21, 1966; B-158699, SEPTEMBER 6, 1968.

SINCE THE LOSS OR SHORTAGE HERE INVOLVED IS COMPLETELY UNEXPLAINED, WE ARE FACED WITH A PRESUMPTION OF NEGLIGENCE, AND NO EVIDENCE WHATSOEVER TO REBUT THAT PRESUMPTION, OTHER THAN THE FACT THAT MR. SZABO WAS EXTREMELY BUSY DURING THE PERIOD WHEN THE LOSS MUST HAVE OCCURRED. IN FACT, MR. SZABO HIMSELF, IN HIS SIGNED STATEMENT OF APRIL 5, 1968, ACKNOWLEDGES THAT THIS SHORTAGE MAY WELL HAVE RESULTED FROM HIS GIVING OUT MORE IN VALUE THAN HE RECEIVED BECAUSE OF THE PRESSURE OF WORK. OBVIOUSLY, BEING VERY BUSY IS NOT A VALID EXCUSE FOR NEGLIGENCE OR CARELESSNESS. AS MR. E. C. RAY, ASSISTANT DIRECTOR, OPERATIONS DIVISION FOR LOCAL SERVICES, POST OFFICE DEPARTMENT, STATED IN HIS SIGNED STATEMENT TO INSPECTOR BONES, DATED JUNE 6, 1968. * * * AS FAR AS EXTENUATING CIRCUMSTANCES, ONE EXCHANGE OR ONE HUNDRED EXCHANGES SHOULD BE MADE CORRECTLY AND THE NUMBER OF EXCHANGES IS NOT THE PRIMARY FACTOR, BUT THE ACCURACY OF EACH EXCHANGE AS ONLY ONE PATRON CAN BE HANDLED AT A TIME. IN THE CASE OF BOGGS V UNITED STATES, 44 CT. CL. 367, THE COURT STATED ON PAGE 384, IN CONNECTION WITH AN ACCOUNTABLE OFFICER'S PETITION FOR RELIEF, THAT:

* * * THAT IS, WHERE THE OFFICER HAS ESTABLISHED THE FACT THAT HIS CONDUCT HAS REALLY BEEN FAULTLESS. BEFORE RELIEF CAN BE GRANTED IT MUST APPEAR WITH REASONABLE DEGREE OF CERTAINTY FROM ALL THE PROOF AND CIRCUMSTANCES OF THE CASE THAT THE OFFICER ENTRUSTED WITH PUBLIC MONEY HAS EXERCISED WATCHFULNESS OVER THE FUNDS AND SUCH DEGREE OF CARE AS FAIRLY AND EQUITABLY ENTITLE HIM TO A DECREE EXONERATING HIM FROM THE OBLIGATION OF HIS BOND.

* * * EACH CASE MUST DEPEND UPON THOSE CONDITIONS AND CIRCUMSTANCES WHICH NECESSARILY ARISE OUT OF THE PROOF WHEN PRESENTED. AS, HOWEVER, REDRESS CAN ONLY BE HAD IN EXCEPTIONAL CASES THERE IS AT THE OUTSET A PRESUMPTION OF LIABILITY, AND THE BURDEN OF PROOF MUST REST UPON THE OFFICER WHO HAS SUSTAINED THE LOSS.

IT IS APPARENT THAT THE BURDEN OF PROOF HAS NOT BEEN MET IN THIS CASE AND, HENCE, WE CANNOT GRANT MR. SZABO RELIEF UNDER THE PROVISIONS OF 39 U.S.C. 2401. MOREOVER, SINCE THE ONLY OTHER STATUTE UNDER WHICH RELIEF COULD BE GRANTED IN CASES OF THIS NATURE--- 31 U.S.C. 82A-1--- ALSO REQUIRES OUR CONCURRENCE IN A FINDING THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE OFFICER INVOLVED, RELIEF LIKEWISE CANNOT BE GRANTED THEREUNDER.