B-202444.OM, APR 21, 1982

B-202444.OM: Apr 21, 1982

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DIGEST: CLAIMS BY GAO EMPLOYEES FOR THE LOSS OF OVERCOATS THAT DISAPPEARED FROM THEIR OFFICES IN THE GAO BUILDING ARE HEREBY ALLOWED AND SHOULD BE PAID BY GAO'S CHIEF OF ADMINISTRATIVE FINANCE. ALLOWANCE OF THE CLAIMS IS AUTHORIZED UNDER PARAGRAPH 5-K. EVIDENCE OF THEFT IS ESTABLISHED BY THE SEPARATE DISAPPEARANCES OF ELEVEN COATS DURING FY 81 FROM OFFICES WITHIN THE GAO BUILDING DURING TWO SHORT TIME PERIODS. CZARSTY: THIS IS IN RESPONSE TO THE APPEALS OF TWO GAO EMPLOYEES WHOSE CLAIMS FOR CLOTHING LOST FROM THEIR OFFICES YOU DISALLOWED. WE HAVE CONCLUDED THAT THESE CLAIMS SHOULD BE ALLOWED. THE DAMAGE OR LOSS MUST BE INCIDENT TO THE EMPLOYEE'S GOVERNMENT SERVICE AND HAVE RESULTED FROM AN UNUSUAL OCCURRENCE THAT IS BEYOND THE NORMAL RISKS OF DAMAGE OR LOSS ASSOCIATED WITH DAY-TO-DAY LIVING AND WORKING.

B-202444.OM, APR 21, 1982

SUBJECT: EMPLOYEE CLAIMS FOR LOSS OF PERSONAL CLOTHING B-202444-O.M. DIGEST: CLAIMS BY GAO EMPLOYEES FOR THE LOSS OF OVERCOATS THAT DISAPPEARED FROM THEIR OFFICES IN THE GAO BUILDING ARE HEREBY ALLOWED AND SHOULD BE PAID BY GAO'S CHIEF OF ADMINISTRATIVE FINANCE. ALLOWANCE OF THE CLAIMS IS AUTHORIZED UNDER PARAGRAPH 5-K, SECTION 3, GAO ORDER 0267.1 COVERING THEFT OF PERSONAL PROPERTY. EMPLOYEES SATISFIED THE CRITERIA OF PARAGRAPH 5-K BY EXERCISING DUE CARE IN PROTECTING THEIR COATS BY HANGING THEM ON RACKS PROVIDED BY THE GOVERNMENT FOR THAT PURPOSE. EVIDENCE OF THEFT IS ESTABLISHED BY THE SEPARATE DISAPPEARANCES OF ELEVEN COATS DURING FY 81 FROM OFFICES WITHIN THE GAO BUILDING DURING TWO SHORT TIME PERIODS.

CHIEF, ADMINISTRATIVE FINANCE - JUDITH B. CZARSTY:

THIS IS IN RESPONSE TO THE APPEALS OF TWO GAO EMPLOYEES WHOSE CLAIMS FOR CLOTHING LOST FROM THEIR OFFICES YOU DISALLOWED. UPON REVIEW OF THE APPEALS OF CHRISTINE SARYN AND ANN H. FINLEY, WE HAVE CONCLUDED THAT THESE CLAIMS SHOULD BE ALLOWED.

CHRISTINE SARYN AND ANN H. FINLEY, ATTORNEYS IN THE OFFICE OF THE GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, FILED CLAIMS FOR OVERCOATS THAT DISAPPEARED FROM COAT RACKS IN THEIR OFFICES DURING NORMAL BUSINESS HOURS, NOVEMBER 25 AND 26, 1980, RESPECTIVELY. BOTH EMPLOYEES NOTIFIED THE DISTRICT OF COLUMBIA POLICE UPON DISCOVERING THE LOSSES. MS. SARYN CLAIMS A LOSS OF $148.28, REPRESENTING THE VALUE OF HER COAT WHILE MS. FINLEY CLAIMS $100 WHICH REPRESENTS THE AMOUNT DEDUCTED UNDER HER HOMEOWNER'S INSURANCE POLICY FROM THE $478.80 COST OF HER COAT.

THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES CLAIMS ACT OF 1964, PUB.L. NO. 88-558, 31 U.S.C. SECS. 240-242, PROVIDES FOR SETTLEMENT OF CLAIMS OF MILITARY AND CIVILIAN PERSONNEL FOR DAMAGES TO, OR LOSS OF, PERSONAL PROPERTY INCIDENT TO THEIR GOVERNMENT SERVICE UNDER SUCH REGULATIONS AS THE HEAD OF THE AGENCY MAY PRESCRIBE. GAO HAS IMPLEMENTED THIS STATUTE BY PROMULGATING GAO ORDER 0267.1, DATED AUGUST 26, 1980. YOU DENIED THOSE CLAIMS UNDER SECTION 3, PARAGRAPH 5-1 OF THIS ORDER. UNDER THIS PROVISION, CLAIMS MAY BE ALLOWED FOR DAMAGE OR LOSS OF CLOTHING OR ACCESSORIES CUSTOMARILY WORN ON THE PERSON. THE DAMAGE OR LOSS MUST BE INCIDENT TO THE EMPLOYEE'S GOVERNMENT SERVICE AND HAVE RESULTED FROM AN UNUSUAL OCCURRENCE THAT IS BEYOND THE NORMAL RISKS OF DAMAGE OR LOSS ASSOCIATED WITH DAY-TO-DAY LIVING AND WORKING. YOU DETERMINED THAT THESE CLAIMS FAILED TO SATISFY THE UNUSUAL OCCURRENCE CRITERION INASMUCH AS THE LOSS OF A COAT IS A NORMAL RISK OF WORKING IN THE GAO BUILDING.

WE ARE OF THE OPINION THAT PARAGRAPH 5-1 IS NOT THE APPROPRIATE PROVISION UNDER WHICH THESE CLAIMS SHOULD HAVE BEEN CONSIDERED. THIS PARAGRAPH IS APPLICABLE ONLY TO CLOTHING THAT IS DAMAGED OR LOST AND IS INAPPLICABLE TO CLOTHING THAT IS STOLEN. WE BELIEVE THE FACTS REASONABLY DEMONSTRATE THAT THE COATS WERE STOLEN. PARAGRAPH 5-K OF THE ORDER IS APPLICABLE TO CLAIMS FOR PERSONAL PROPERTY ARISING FROM THEFT AND PROVIDES THAT THE FOLLOWING CRITERIA MUST BE SATISFIED BEFORE SUCH CLAIMS MAY BE ALLOWED. THERE MUST BE SUFFICIENT EVIDENCE ON THE RECORD TO ESTABLISH THAT A THEFT OCCURRED AS DISTINGUISHED FROM A MYSTERIOUS DISAPPEARANCE. ALSO, THE THEFT MUST HAVE BEEN INCIDENT TO THE EMPLOYEE'S GOVERNMENT SERVICE AND NOT FACILITATED BY THE NEGLIGENT OR WRONGFUL ACTS OF THE CLAIMANT. THE CLAIMANT MUST HAVE EXERCISED REASONABLE CARE TO PROTECT AND SECURE THE PROPERTY IN QUESTION. IN DETERMINING WHETHER DUE CARE WAS EXERCISED, THE REVIEWING AUTHORITY WILL CONSIDER SUCH FACTORS AS THE VALUE OF THE PROPERTY, ITS PORTABILITY, ITS SECURABILITY, THE AVAILABILITY OF SECURITY FACILITIES AND THE AREA FROM WHICH THE PROPERTY WAS STOLEN.

AN ANALYSIS OF THE EVIDENCE IN THE INSTANT CASE REVEALS THE FOLLOWING DATA. DURING FISCAL YEAR 1981 THERE WERE 11 STOLEN COAT CLAIMS SUBMITTED. SEVEN OF THE CLAIMS WERE FOR THEFTS THAT OCCURRED DURING THE PERIOD NOVEMBER 21 AND NOVEMBER 26, 1980. THE OTHER FOUR CLAIMS OCCURRED BETWEEN FEBRUARY 20 AND MARCH 11, 1981. BECAUSE ALL THE COATS DISAPPEARED WITHIN A FEW DAYS DURING TWO SEPARATE TIME PERIODS, WE BELIEVE THAT AN OBVIOUS PATTERN OF THEFT IS ESTABLISHED AND IS THE ONLY PLAUSIBLE EXPLANATION FOR THE DISAPPEARANCE OF THIS NUMBER OF COATS. MOREOVER, WE BELIEVE THESE TWO EMPLOYEES EXERCISED REASONABLE CARE AND WERE NOT NEGLIGENT REGARDING THE SECURITY OF THEIR COATS SO AS TO FACILITATE THE THEFTS. UPON ARRIVAL AT WORK, THE EMPLOYEES HUNG THEIR COATS ON COAT RACKS PROVIDED FOR THAT PURPOSE IN THEIR RESPECTIVE OFFICES. THE OFFICES OPENED ON WELL TRAVELED CORRIDORS AND THE COATS WERE IN FULL VIEW OF ANYONE PASSING BY. THE EMPLOYEES WERE REQUIRED TO SPEND PERIODS OF TIME OUT OF THEIR OFFICES IN OTHER PARTS OF THE BUILDING THROUGHOUT THE DAY AND IT WOULD BE UNREASONABLE AND IMPRACTICAL FOR THEM TO EITHER WEAR THEIR COATS OR CARRY THEM. IT WAS ALSO IMPRACTICAL FOR THE EMPLOYEES TO STORE AND LOCK THEIR COATS WITHIN THEIR DESKS OR FILE CABINETS. ALSO, UNDER THE PARTICULAR CIRCUMSTANCES, WE FIND THAT IT WAS REASONABLE FOR THESE EMPLOYEES TO BE WEARING COATS OF THE QUALITY OF THE ONES CLAIMED. ACCORDINGLY, ON THE BASIS OF ALL THE EVIDENCE, WE CONCLUDE THAT THE CRITERIA SET FORTH IN PARAGRAPH 5-K OF THE ORDER ARE SATISFIED AND THE CLAIMS OF MS. SARYN AND MS. FINLEY SHOULD BE ALLOWED IN THE AMOUNTS CLAIMED.

AS PREVIOUSLY MENTIONED, YOU HAVE ADVISED US THAT NINE OTHER EMPLOYEES HAVE SUBMITTED CLAIMS FOR COATS THAT WERE STOLEN DURING FISCAL YEAR 1981 IN THE AMOUNT OF $1,294.05. WE RECOMMEND THAT YOU RECONSIDER THESE CLAIMS WITH REFERENCE TO OUR HOLDING ABOVE, THAT THE PATTERN OF DISAPPEARANCE IS EVIDENCE OF THEFT AND THAT PARAGRAPH 5-K IS APPLICABLE TO THEFT CLAIMS. EACH CLAIM SHOULD BE CONSIDERED INDIVIDUALLY AND EVALUATED AGAINST THE CRITERIA OUTLINED IN PARAGRAPH 5 K. IN THIS CONNECTION, WE ARE OF THE OPINION THAT AS A GENERAL RULE, CLAIMS FOR ITEMS OF VALUE LEFT IN A STOLEN COAT SHOULD NOT BE ALLOWED INASMUCH AS AN EMPLOYEE MAY BE CONSIDERED NEGLIGENT FOR LEAVING SUCH ITEMS IN THE COAT. YOU ARE ENCOURAGED TO SUBMIT CLAIMS TO THIS OFFICE FOR REVIEW WHERE THERE IS SUBSTANTIAL DOUBT AS TO WHETHER IT SHOULD BE ALLOWED.