B-173075, AUG 2, 1971

B-173075, AUG 2, 1971

RELIEF OF LIABILITY OF POSTAL CLERKS DECISION RELIEVING CERTAIN POSTAL CLERKS AT THE FLUSHING, NEW YORK POST OFFICE OF LIABILITY FOR ACCEPTING AND DISTRIBUTING A MAILING OF "PENNYSAVER OF KINGS AND QUEENS" WITH ONLY 16 PAGES, SINCE PREVIOUS MAILINGS OF THE PUBLICATION HAD ALWAYS CONTAINED THE REQUIRED NUMBER OF PAGES AND AS THE SAMPLE MARKED COPIES OF THE MAILING IN QUESTION DID CONTAIN THE REQUIRED 24 PAGES.

TO MR. POSTMASTER GENERAL:

REFERENCE IS MADE TO THE LETTER OF JULY 14, 1971, FROM THE DIRECTOR, ACCOUNTING SERVICES DIVISION, FINANCE AND ADMINISTRATION DEPARTMENT, POSTAL SERVICE, IN WHICH WE ARE ASKED TO GIVE FAVORABLE CONSIDERATION TO A REQUEST DATED MAY 5, 1971, FROM MR. JOHN J. HOGAN, POSTMASTER AT FLUSHING, NEW YORK, THAT WE RECONSIDER OUR PRIOR DETERMINATION THAT SOME UNIDENTIFIED CLERKS AT TWO OF THE STATIONS OF HIS POST OFFICE, WHO ACCEPTED 16-PAGE EDITIONS OF THE "PENNYSAVER OF KINGS AND QUEENS" WERE NEGLIGENT IN FAILING TO ASSURE THEMSELVES THAT THE EDITIONS CONTAINED THE MINIMUM REQUIRED 24 PAGES. WE HAD PREVIOUSLY RELIEVED POSTMASTER HOGAN OF PERSONAL LIABILITY FOR THE DEFICIENCY SINCE HE DID NOT, NOR WAS HE REQUIRED OR EXPECTED TO, INSPECT THE MAILINGS TO DETERMINE IF THEY QUALIFIED FOR REGULAR CONTROLLED CIRCULATION RATES AND THAT, THEREFORE, THE DEFICIENCY DID NOT OCCUR AS A RESULT OF HIS NEGLIGENCE.

THE CASE FILE NOW SHOWS THAT THE PUBLISHER BEGAN MAKING WEEKLY MAILINGS ON JANUARY 15, 1968, AND THAT ALL SUCH MAILINGS CONTAINED THE REQUIRED 24 PAGES. IN THE INSTANT MAILING THE PUBLISHER DROPPED THE MAILINGS OFF AFTER WORK HOURS, AT FOUR DIFFERENT STATIONS IN ORDER TO EXPEDITE THE HANDLING. THE COVER PAGES WERE IDENTICAL IN THE MAILINGS AT EACH STATION AND THE SAMPLE MARKED COPY CONTAINED THE REQUIRED 24 PAGES. THE CLERKS VERIFIED THE CASH DEPOSIT BALANCE AND DISTRIBUTED THE MAILING PROMPTLY. IT WAS ONLY AFTER DISTRIBUTION THAT IT WAS DISCOVERED THAT THE ISSUE IN QUESTION WAS MAILED IN TWO DIFFERENT SIZES, WITH IDENTICAL COVER SHEETS, THE ISSUE CONSISTING OF 24 PAGES AT TWO OF THE STATIONS AND ONLY 16 PAGES IN THE MAILING DISTRIBUTED AT THE OTHER TWO STATIONS.

SINCE THE MAILINGS HAD ALWAYS CONTAINED THE REQUIRED NUMBER OF PAGES, THE COVER SHEETS ON ALL MAILINGS WERE IDENTICAL, AND THE SAMPLE MARKED COPY CONTAINED THE REQUIRED 24 PAGES, THE DIRECTOR OF THE ACCOUNTING SERVICE DIVISION STATES THAT THE CLERKS INVOLVED HAD ACTED REASONABLY AND THAT THE LOSS OCCURRED WITHOUT NEGLIGENCE ON THE PART OF THE POSTMASTER AND HIS STAFF.

ALTHOUGH THE MATTER IS NOT FREE FROM DOUBT, IN VIEW OF THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE, WE ARE NOTIFYING OUR CIVIL DIVISION THAT RELIEF MAY BE GRANTED TO THE CLERKS INVOLVED.