B-75791, OCTOBER 4, 1949, 29 COMP. GEN. 151

B-75791, OCTOBER 4, 1949, 29 COMP. GEN. 151

DELEGATION OF AUTHORITY - FINDINGS AND RECOMMENDATIONS UNDER ACCOUNTABLE OFFICER RELIEF ACT UNDER THE ACT OF AUGUST 1, 1947, AUTHORIZING THE GENERAL ACCOUNTING OFFICE TO RELIEVE ACCOUNTABLE OFFICERS OF RESPONSIBILITY FOR PHYSICAL LOSSES OF GOVERNMENT FUNDS IF THE HEAD OF THE DEPARTMENT DETERMINES THAT THE LOSS OCCURRED WHILE IN THE DISCHARGE OF OFFICIAL DUTIES OR BY AN ACT OF A SUBORDINATE, WITHOUT THE FAULT OR NEGLIGENCE OF THE OFFICER, RELIEF MAY NOT BE GRANTED TO AN AGENT CASHIER FOR LOSS OF FUNDS ON THE BASIS OF FINDINGS, CONCLUSIONS, OR RECOMMENDATIONS MADE BY THE ACTING DEPUTY UNDER SECRETARY OF STATE " FOR THE SECRETARY OF STATE," IN THE ABSENCE OF A LEGISLATIVE INTENT AUTHORIZING A DELEGATION OF THE DISCRETIONARY AUTHORITY VESTED IN THE HEAD OF THE DEPARTMENT BY THE ACT TO AN OFFICIAL NOT AUTHORIZED TO ACT IN HIS STEAD.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, OCTOBER 4, 1949:

REFERENCE IS MADE TO LETTER DATED AUGUST 10, 1949, DF/X, SIGNED BY THE ACTING DEPUTY UNDER SECRETARY OF STATE " FOR THE SECRETARY OF STATE," STATING THAT IT HAS BEEN DETERMINED THAT THE LOSS BY THEFT OF THE SUM OF $4,257.04 FROM A LOCKED WRITING TABLE IN THE OFFICE OCCUPIED BY ROBERT B. KNAPP, AGENT CASHIER, COPENHAGEN, DENMARK, TO WHOM THE FUNDS HAD BEEN ADVANCED FOR DISCHARGE OF HIS OFFICIAL DUTIES AS AN EMPLOYEE OF THE OFFICE OF WAR INFORMATION, OCCURRED THROUGH NO FAULT OR NEGLIGENCE ON THE PART OF MR. KNAPP AND RECOMMENDING THAT HE BE RELIEVED, PURSUANT TO THE PROVISIONS OF THE ACT OF AUGUST 1, 1947, PUBLIC 321, 61 STAT. 720, OF RESPONSIBILITY FOR LOSS OF THE SAID AMOUNT.

THE CITED ACT AUTHORIZES THIS OFFICE, AFTER CONSIDERATION OF THE PERTINENT FINDINGS, AND IF IN CONCURRENCE WITH THE DETERMINATIONS AND RECOMMENDATIONS OF THE HEAD OF THE DEPARTMENT CONCERNED, TO RELIEVE ACCOUNTABLE OFFICERS OR AGENTS CHARGED WITH RESPONSIBILITY FOR PHYSICAL LOSSES OF GOVERNMENT FUNDS IF THE HEAD OF THE DEPARTMENT DETERMINES (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE THE OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THAT SUCH LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF SUCH OFFICER OR AGENT AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. THE ACT THUS APPEARS TO VEST IN THE HEAD OF THE DEPARTMENT CONCERNED THE DISCRETION AND POWER TO MAKE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS THEREUNDER. IT HAS BEEN HELD UNIFORMLY THAT SUCH A DISCRETIONARY AUTHORITY MAY NOT BE DELEGATED--- IN THE ABSENCE OF A CLEAR EXPRESSION OF LEGISLATIVE INTENT TO THE CONTRARY--- TO OTHER THAN OFFICIALS AUTHORIZED BY LAW TO ACT IN PLACE OF THE HEAD OF THE AGENCY CONCERNED OR TO AN ASSISTANT SECRETARY, THE TITLE AND NATURE OF THE LATTER'S POSITION BEING CONSIDERED SUCH AS TO AUTHORIZE THE INCUMBENT TO ASSIST THE HEAD OF THE DEPARTMENT IN ALL MATTERS REQUIRING HIS PERSONAL ATTENTION OR DISCRETION AND TO ACT IN LIEU OF THE SECRETARY WHEN AUTHORIZED BY HIM TO DO SO. 14 COMP. GEN. 698; 20 ID. 27; ID. 779; 21 ID. 921; 22 ID. 1083; AND 26 ID. 249. NO STATUTE HAS BEEN FOUND WHICH AUTHORIZES THE ACTING DEPUTY UNDER SECRETARY TO ACT IN PLACE OF THE SECRETARY OF STATE, NOR IS THERE ANYTHING IN THE ACT OF AUGUST 1, 1947, SUPRA, WHICH WOULD APPEAR TO WARRANT THIS OFFICE TAKING ACTION THEREUNDER UPON FINDINGS, CONCLUSIONS, OR RECOMMENDATIONS MADE BY HIM " FOR THE SECRETARY OF STATE.'

THE LETTER OF THE ACTING DEPUTY UNDER SECRETARY CONTAINS NO STATEMENT OF FACTS UPON WHICH THERE WAS PREDICATED THE CONCLUSION THAT THERE WAS NO FAULT OR NEGLIGENCE ON MR. KNAPP'S PART IN THE LOSS OF THE INVOLVED FUNDS AND THE RECOMMENDATION THAT HE BE RELIEVED OF RESPONSIBILITY FOR THEIR LOSS. HOWEVER, IN LETTER DATED OCTOBER 12, 1948, ADDRESSED TO THE CHIEF, CLAIMS DIVISION OF THIS OFFICE, BY THE CHIEF DISBURSING OFFICER, THE CIRCUMSTANCES SURROUNDING THE LOSS OF THE FUNDS ARE REPORTED AS FOLLOWS:

IN THIS CONNECTION, YOU ARE ADVISED THAT FUNDS IN THE AMOUNT OF $4,257.04, TRANSFERRED FROM LONDON, ENGLAND TO COPENHAGEN, DENMARK, IN THE ACCOUNTS OF ROBERT B. KNAPP, AGENT CASHIER, WERE STOLEN BETWEEN THE NIGHT OF WEDNESDAY, OCTOBER 17 AND SATURDAY MORNING OCTOBER 20, 1945, FROM A LOCKED WRITING-TABLE IN THE OFFICES OCCUPIED BY MR. KNAPP, WHO WAS NOT IN COPENHAGEN AT THE TIME OF THE ROBBERY, HAVING GONE TO KERSOR, DENMARK. PROFESSOR WALDEMAR WESTERGAARD, THE LAST OF THE LEGATION STAFF TO LEAVE HIS OFFICE ON WEDNESDAY, THE NIGHT ON WHICH A PORTION OF THE MONEY DISAPPEARED, STATED HE WAS SURE HE LOCKED THE WRITING-TABLE, ALSO THE MAIN DOOR WHEN LEAVING. BECAUSE OF VARIOUS THEFTS HAVING BEEN COMMITTED IN THE SAID LEGATION, HE RETURNED TO THE OFFICE FOR THE PURPOSE OF GETTING THE MONEY FROM THE LOCKED WRITING TABLE AND TAKING IT HOME FOR SAFE KEEPING, BUT FOUND IT IMPOSSIBLE TO UNLOCK THE LEGATION DOOR. RETURNING A SECOND TIME HE WAS STILL UNSUCCESSFUL. WHEN HE ARRIVED AT THE OFFICE THE FOLLOWING MORNING, HE FOUND THE WRITING-TABLE DRAWER CLOSED AND UNLOCKED, AND DISCOVERED THE MONEY INVOLVED HAD DISAPPEARED. MR. KNAPP RETURNED TO COPENHAGEN ON FRIDAY NIGHT OCTOBER 19, 1945 AND UPON BEING INFORMED OF THE ROBBERY, IMMEDIATELY NOTIFIED THE LOCAL POLICE DEPARTMENT.

ACCORDING TO THE TRANSCRIBED CARBON COPY OF THE POLICE BLOTTER CONCERNING THE INVESTIGATION, EVERYONE EMPLOYED AT THE LEGATION WAS EXAMINED AND QUESTIONED, HOWEVER, EACH EMPLOYEE DENIED HAVING COMMITTED THE THEFT. REGARDLESS OF THE FACT THAT TWO DESKS IN THE OFFICE WERE FORCED OPEN AND BROKEN INTO, DOORS JAMMED AND UNLOCKED, AN ENVELOPE, CONTAINING TWO CHECKS, WAS OPENED AND LEFT IN A THIRD DESK, THE POLICE FAILED TO FIND CLEWS OF ANY DESCRIPTION SUCH AS FINGERPRINTS OR OTHER EVIDENCE INDICATING THE PERPETRATOR OF THE THEFT.

AS THE LEGATION ROOMS HAD PREVIOUSLY BEEN OCCUPIED BY THE GERMANS AND THE DOORS HAD THE SAME LOCKS, IT IS POSSIBLE THAT A LARGE NUMBER OF PEOPLE MAY HAVE HAD KEYS AND ACCESS TO THE ROOMS. THE NIGHT WATCHMAN, HARRY INGEMANN OSTERGAARD JENSEN, WAS THOROUGHLY QUESTIONED AND ADMITTED STEALING A SHIRT, TOBACCO, COFFEE AND TEA FROM THE LOCKED ROOMS ON THE NIGHTS THE MONEY DISAPPEARED, BUT DENIED HAVING TAKEN THE MONEY. HE WAS ARRESTED, BUT ON THE BASIS OF THE AVAILABLE MATERIAL, THE DISTRICT ATTORNEY FOR COPENHAGEN DECIDED THAT NO INDICTMENT WOULD BE ISSUED. MR. JENSEN WAS ALSO EMPLOYED BY A CERTAIN WATCH COMPANY, FROM WHICH COMPANY HE WAS DISMISSED AS OF NOVEMBER 1, 1945, BECAUSE OF MISCONDUCT AND REPORTING ILL TOO MANY DAYS.

IT DOES NOT APPEAR THEREFROM WHAT AUTHORITY MR. KNAPP HAD TO LEAVE FUNDS ADVANCED TO HIM IN THE CUSTODY OF OTHERS, IF HE DID SO, OR WHAT ARRANGEMENTS WERE MADE BY HIM TO SAFEGUARD THE FUNDS DURING HIS TEMPORARY ABSENCE FROM COPENHAGEN. CERTAINLY, THE MERE DEPOSITING OF THE FUNDS IN A LOCKED WRITING TABLE DRAWER IN A BUILDING TO WHICH NUMEROUS PERSONS HAD ACCESS, KEYS, ETC., AND FROM WHICH SEVERAL THEFTS PREVIOUSLY HAD OCCURRED, WOULD NOT APPEAR TO CONSTITUTE REASONABLE DILIGENCE IN THE SAFEGUARDING OF SO LARGE AN AMOUNT OF FUNDS ENTRUSTED TO HIM AND FOR WHICH, UNDER THE TERMS OF HIS BOND, HE WAS LIABLE. ALSO, THE LETTER OF THE ACTING DEPUTY UNDER SECRETARY APPEARS NOT TO SET FORTH ANY SPECIFIC DETERMINATION THAT THE LOSS OCCURRED WHILE MR. KNAPP WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES OR THAT THE LOSS OCCURRED BY REASON OF THE ACT OR OMISSION OF HIS SUBORDINATES, AS REQUIRED BY THE ACT OF AUGUST 1, 1947, SUPRA. ON SUCH A RECORD IT APPEARS DOUBTFUL WHETHER THIS OFFICE--- EVEN IF THE LETTER OF AUGUST 10 HAD BEEN SIGNED BY THE SECRETARY OF STATE--- COULD HAVE CONCURRED IN A FINDING THAT THE LOSS OCCURRED WHILE IN THE DISCHARGE OF OFFICIAL DUTIES OR BY THE ACT OF A SUBORDINATE, AND WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MR. KNAPP.

ACCORDINGLY, ON THE PRESENT RECORD, THERE IS NO PROPER BASIS FOR THIS OFFICE TO RELIEVE MR. KNAPP OF HIS RESPONSIBILITY FOR THE LOSS OF THE INVOLVED FUNDS.