B-207445, MAY 18, 1983, OFFICE OF GENERAL COUNSEL

B-207445: May 18, 1983

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

YOU HAVE REQUESTED RELIEF UNDER 31 U.S.C. WHO IS A FOREST SERVICE EMPLOYEE OF THE PACIFIC NORTHWEST FOREST AND RANGE EXPERIMENT STATION. AN UNKNOWN PERSON APPARENTLY HAD ACCESS TO THE SAFE WHERE THE FUNDS WERE BEING HELD. SINCE THERE WAS NO EVIDENCE OF FORCED ENTRY INTO THE BUILDING OR SAFE. TEMPORARY CHARGE OF THE IMPREST FUNDS AND ADVANCE MONEY WHICH WAS IN A LOCKED SAFE IN THE OFFICE THEY SHARED WHILE MS. BERGENER DID NOT HAVE MS. BERGENER WAS HELD LIABLE ON MARCH 27. BERGENER WAS NOT WITHOUT FAULT OR NEGLIGENCE. WAS THE CAUSE OF THE THEFT. WHERE THE ACCOUNTABLE OFFICER DID NOT HAVE SOLE CONTROL OF THE FUNDS. THE GENERAL ACCOUNTING OFFICE (GAO) IS AUTHORIZED BY 31 U.S.C. SEC. 3527 TO RELIEVE AN ACCOUNTABLE OFFICER FROM LIABILITY FOR A PHYSICAL LOSS OR DEFICIENCY IF GAO CONCURS WITH AN ADMINISTRATIVE DETERMINATION THAT THE LOSS OCCURRED WHILE THE ACCOUNTABLE OFFICER WAS ACTING IN THE DISCHARGE OF OFFICIAL DUTIES AND THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER.

B-207445, MAY 18, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE JOHN R. BLOCK, THE SECRETARY OF AGRICULTURE:

BY LETTER DATED MAY 6, 1982, YOU HAVE REQUESTED RELIEF UNDER 31 U.S.C. SEC. 3527 (FORMERLY 31 U.S.C. SEC. 82A-1 (1976)) IN THE AMOUNT OF $696.70 FOR MARY JANE BERGENER, AN ACCOUNTABLE OFFICER, WHO IS A FOREST SERVICE EMPLOYEE OF THE PACIFIC NORTHWEST FOREST AND RANGE EXPERIMENT STATION, DEPARTMENT OF AGRICULTURE, IN OLYMPIA, WASHINGTON. FOR THE FOLLOWING REASONS, WE GRANT RELIEF.

ACCORDING TO THE FACTS, A LOSS OF FUNDS OCCURRED DURING THE NIGHT OF FEBRUARY 26, 1979. AN UNKNOWN PERSON APPARENTLY HAD ACCESS TO THE SAFE WHERE THE FUNDS WERE BEING HELD, SINCE THERE WAS NO EVIDENCE OF FORCED ENTRY INTO THE BUILDING OR SAFE. SOMETIME PRIOR TO FEBRUARY 27, MS. BERGENER, THE PRINCIPAL CASHIER, HAD GIVEN CARYN OESTREICH, THE ALTERNATE IMPREST FUNDS CASHIER, TEMPORARY CHARGE OF THE IMPREST FUNDS AND ADVANCE MONEY WHICH WAS IN A LOCKED SAFE IN THE OFFICE THEY SHARED WHILE MS. BERGENER WENT ON A SHORT TRIP. MS. BERGENER DID NOT HAVE MS. OESTREICH SIGN FOR THE FUNDS BUT DID PROVIDE HER WITH ACCESS TO THE CASH BOX AND SAFE. BECAUSE MS. OESTREICH HAD NOT MEMORIZED THE COMBINATION TO THE SAFE, SHE HAD WRITTEN IT DOWN ON A CARD WHICH SHE KEPT IN A BOOKCASE BEHIND HER DESK. AT LEAST ONCE, ANOTHER EMPLOYEE OBSERVED HER WHEN SHE PULLED THE CARD TO OPEN THE SAFE.

MS. OESTREICH DISCOVERED THE LOSS OF FUNDS IN THE AMOUNTS OF $212.70 (IMPREST FUNDS) AND $484 (CASH ADVANCES) ON FEBRUARY 27, 1979. THE LOCAL SHERIFF'S OFFICE MADE AN INVESTIGATION THAT DAY AND THEREAFTER YIELDED TO THE FBI. THE FBI BEGAN ITS INVESTIGATION ON MARCH 2 AND VISITED THE SITE ON MARCH 9, 1979. ON DECEMBER 17, 1979, IT NOTIFIED THE FOREST SERVICE VERBALLY THAT IT WOULD SUSPEND ITS INVESTIGATION DUE TO LACK OF EVIDENCE. THE FOREST SERVICE HAS NOT RECOVERED ANY MONEY FROM THE THEFT.

MS. BERGENER WAS HELD LIABLE ON MARCH 27, 1980, BY THE DIRECTOR OF FISCAL MANAGEMENT FOR THE LOSS OF THE IMPREST FUNDS. HE STATED THAT MS. BERGENER WAS NOT WITHOUT FAULT OR NEGLIGENCE, PRESUMABLY DUE TO THE FACT THAT SHE HAD FAILED TO SIGN THE FUNDS OVER TO MS. OESTREICH BEFORE LEAVING FOR HER TRIP. MS. BERGENER APPEALED THE DECISION, STATING THAT THE GOVERNMENT DID NOT CONDUCT A PROMPT INVESTIGATION, AND THAT CIRCUMSTANTIAL EVIDENCE IMPLICATES TWO OTHER EMPLOYEES IN THE LOSS. SHE ALSO BELIEVED THAT THE ACTION OF HER SUBORDINATE, MS. OESTREICH, IN ALLOWING AN INDIVIDUAL TO SEE THE CARD WITH THE COMBINATION WRITTEN ON IT, WAS THE CAUSE OF THE THEFT.

BY MEMORANDUM DATED APRIL 13, 1981, THE DIVISION OF FINANCE AND ACCOUNTING, RESEARCH SUPPORT SERVICES, RECOMMENDED THAT THE DIRECTOR OF FINANCIAL MANAGEMENT REQUEST RELIEF FOR MS. BERGENER, BASED UPON OUR RATIONALE IN B-181440, MAY 25, 1979, WHERE THE ACCOUNTABLE OFFICER DID NOT HAVE SOLE CONTROL OF THE FUNDS. RELIEF HAS BEEN REQUESTED FOR THE FULL AMOUNT OF THE LOSS.

THE GENERAL ACCOUNTING OFFICE (GAO) IS AUTHORIZED BY 31 U.S.C. SEC. 3527 TO RELIEVE AN ACCOUNTABLE OFFICER FROM LIABILITY FOR A PHYSICAL LOSS OR DEFICIENCY IF GAO CONCURS WITH AN ADMINISTRATIVE DETERMINATION THAT THE LOSS OCCURRED WHILE THE ACCOUNTABLE OFFICER WAS ACTING IN THE DISCHARGE OF OFFICIAL DUTIES AND THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER.

WE AGREE WITH THE AGENCY'S DETERMINATION THAT ALTHOUGH MS. BERGENER FAILED TO SIGN THE FUNDS OVER TO MS. OESTREICH, THAT OMISSION WAS NOT THE PROXIMATE CAUSE OF THE LOSS. (MS. OESTREICH ACKNOWLEDGES SHE RECEIVED THE FUNDS.) WHILE A PRECISE DEFINITION OF PROXIMATE CAUSE DOES NOT EXIST, THE CONCEPT BEHIND IT IS THAT TO HOLD SOMEONE LIABLE, A CAUSE-AND-EFFECT RELATIONSHIP MUST EXIST BETWEEN THE NEGLIGENCE AND THE LOSS. WE FIND THAT MS. BERGENER'S ACTION IN THIS CASE WAS NOT THE REASON FOR THE LOSS. SEE, E.G., B-182386, APRIL 24, 1975. THEREFORE, WE CONCUR IN THE AGENCY'S DETERMINATION THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON HER PART, AND GRANT RELIEF TO MS. BERGENER IN THE AMOUNT OF $696.70.

HOWEVER, WE FIND THAT RELIEF SHOULD BE REQUESTED FOR MS. OESTREICH, IF YOU FIND IT APPROPRIATE, AS SHE WAS THE ACCOUNTABLE OFFICER WITH CUSTODY OF THE FUNDS. IF YOU DECIDE TO REQUEST RELIEF FOR HER, PLEASE ADDRESS THE ISSUE OF HER COMPROMISING THE SAFE'S COMBINATION.