B-170272, OCT. 21, 1970

B-170272, OCT. 21, 1970

REQUEST FOR RELIEF - POSTAL CLERK DENIAL OF RELIEF FOR POSTAL CLERK FROM LIABILITY FOR SHORTAGES TOTALING $483.84 IN HIS FIXED CREDITS. THE CLERK'S CONTENTION THAT THE SHORTAGE WAS STRICTLY DUE TO AN UNDISCLOSED MALFUNCTIONING OF AN ADDING MACHINE IS OVERCOME BY THE FACT THAT $200.80 OF THE SHORTAGE REPRESENTS THE VALUE OF TWO MONEY ORDERS HE SOLD BUT FAILED TO INCLUDE IN HIS CASH REPORT, BY THE FINDING THAT IT WAS THE WAY THE CLERK USED THE MACHINE THAT RESULTED IN THE MALFUNCTION AND BY EVIDENCE OF THE CLERK'S KNOWLEDGE OF THE MALFUNCTION.

TO MR. PHIL DOOLEY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1970, ON BEHALF OF REGULAR POSTAL CLERK, HAROLD T. MCDANIEL, OF AUBURN, WASHINGTON, IN WHICH YOU REQUEST THAT WE RECONSIDER THE ACTION TAKEN BY OUR CIVIL DIVISION DENYING RELIEF FROM LIABILITY FOR SHORTAGES TOTALING $483.84, IN HIS FIXED CREDITS.

THE SHORTAGES WERE FOUND IN MR. MCDANIEL'S FIXED CREDIT DURING AUDITS MADE OF HIS INVENTORY ON AUGUST 13, AND SEPTEMBER 25, 1968. MR. MCDANIEL BLAMES THE ENTIRE SHORTAGE ON THE MALFUNCTIONING OF THE ADDING MACHINE WHICH HE USED ON SUBSTANTIALLY ALL HIS TRANSACTIONS. HOWEVER, THE RECORD BEFORE US INDICATES THAT $200.80 OF THE TOTAL SHORTAGE OF $483.84 REPRESENTS THE VALUE OF TWO MONEY ORDERS WHICH HE HAD SOLD ON JANUARY 29, 1968, AND WHICH HE FAILED TO INCLUDE IN HIS DAILY CASH REPORT BECAUSE HE HAD LOST THE MONEY ORDER STUBS. THE RECORD, INCLUDING MR. MCDANIEL'S SWORN AFFIDAVIT OF OCTOBER 25, 1968 (A COPY OF WHICH IS ENCLOSED), FURTHER INDICATES THAT THE CLERK WAS AWARE AT THE TIME HIS FIXED CREDIT WAS AUDITED THAT HE WAS ACCOUNTABLE FOR THE TWO UNREPORTED MONEY ORDER TRANSACTIONS. MOREOVER, WE FAIL TO SEE ANY RELATIONSHIP BETWEEN THE SHORTAGE OF $200.80 RESULTING FROM THE UNREPORTED TRANSACTIONS AND THE FAULTY ADDING MACHINE. THEREFORE, WE HAVE NO BASIS UPON WHICH TO RELIEVE THE CLERK OF LIABILITY FOR THIS SHORTAGE OF $200.80.

IN REGARD TO THE REMAINDER OF THE SHORTAGE (AMOUNTING TO $283.04) IN THE CLERK'S FIXED CREDIT, THE EVIDENCE DOES NOT ESTABLISH THAT THE SHORTAGE WAS DUE STRICTLY TO AN UNDISCLOSED MALFUNCTIONING OF AN ADDING MACHINE.

IN THE FIRST PLACE, IT IS NOT CLEAR IF THE MACHINE MALFUNCTIONED DURING THE PERIOD COVERED BY THE AUDITS. POSTAL INSPECTOR WEBER, WHEN INVESTIGATING THE SHORTAGES, RAN A SERIES OF NUMBERS ON THE MACHINE AND REPORTED THAT " *** WHEN THE DIGIT '1' WAS PUSHED LIGHTLY, IT FAILED TO REGISTER IN ALL INSTANCES." APPARENTLY, THE DIGIT "1" RECORDED IF IT WAS DEPRESSED WITH SUFFICIENT FORCE.

IN ADDITION, IN HIS AFFIDAVIT OF OCTOBER 25, 1968, MR. MCDANIEL, AFTER NOTING THE FAILURE OF THE NUMBER "1" TO REGISTER, STATED: "AT ONE TIME I MENTIONED THIS MALFUNCTION TO THE POSTMASTER BUT WE DECIDED IT WAS THE WAY I USED THE MACHINE RATHER THAN THE FAULT OF THE MACHINE." THE BELIEF THAT MR. MCDANIEL MISUSED THE MACHINE IS SUPPORTED BY THE FACT THAT WHEN ANOTHER POSTAL EMPLOYEE USED THE MACHINE IN THE REQUISITIONING OF THE STAMP STOCK, THE MACHINE APPARENTLY DID NOT MALFUNCTION.

SECOND, EVEN IF IT IS ASSUMED THAT THE SHORTAGES OCCURRED AS A RESULT OF THE MALFUNCTIONING, RATHER THAN THE NEGLIGENT MISUSE OF THE ADDING MACHINE, THE EVIDENCE BEFORE US CLEARLY ESTABLISHES THE CLERK'S KNOWLEDGE OF THE MALFUNCTIONING.

THE POSTAL INSPECTOR FOUND NINE OCCASIONS DURING THE PERIOD FROM NOVEMBER 1967, TO SEPTEMBER 1968, IN WHICH FORM 1908, FINANCIAL ADJUSTMENT MEMORANDUM, HAD BEEN ISSUED TO MR. MCDANIEL TO INFORM HIM OF THE FAILURE OF THE DIGIT "1" TO REGISTER. MOREOVER, IN THE AFOREMENTIONED AFFIDAVIT THE CLERK STATED:

" *** MANY MONTHS BACK, POSSIBLY IN JANUARY 1968, CLERK PHYLLIS DAVIS WHO DOES THE ACCOUNTING IN THE FRONT OFFICE, WAS VERIFYING SOME OF MY DAILY TRANSACTIONS AND NOTED ON ONE TAPE THAT THE FIGURE '1' HAD NOT REGISTERED ON MY TAPE. SINCE THE ORIGINAL INSTANCE SHE NOTED THERE HAVE BEEN SEVERAL MORE SIMILAR CORRECTIONS SHE MADE THAT ALL INVOLVED THE FAILURE OF THE '1' TO REGISTER."

MR. MCDANIEL, KNOWING OF THE MALFUNCTIONING OR IMPROPER USE OF THE MACHINE AND HAVING THE BURDEN OF EXERCISING THE HIGHEST DEGREE OF CARE IN THE HANDLING OF PUBLIC FUNDS, SHOULD HAVE DETERMINED, DURING EACH TRANSACTION, WHETHER THE NUMBER "1" WAS BEING ACCURATELY REGISTERED. THAT HE MADE NO SUCH DETERMINATION IS CLEAR FROM THE STATEMENT IN HIS AFFIDAVIT THAT: "FOR THE PAST SEVERAL MONTHS I HAVE BEEN ATTEMPTING TO WATCH MY TAPES CLOSELY BUT HAVE NOT PAID PARTICULAR ATTENTION TO TAPES THAT I RAN WHEN PATRONS PURCHASED MORE THAN ONE MONEY ORDER." THE FAILURE OF MR. MCDANIEL TO WATCH THE TAPES WAS CLEARLY NEGLIGENT. ALSO, THE AMOUNT OF $283.04 MUST BE VIEWED AS AN UNEXPLAINED SHORTAGE OF FUNDS. THE ACCOUNTING OFFICERS CONSISTENTLY HAVE HELD THAT AN UNEXPLAINED SHORTAGE IS, IN AND OF ITSELF, SUFFICIENT BASIS TO RAISE A PRESUMPTION OF NEGLIGENCE. ACCORDINGLY, THIS OFFICE WOULD NOT BE AUTHORIZED TO RELIEVE HIM OF LIABILITY.