[Response to Request for Reconsideration of Denial of Relief for Rhode Island District Clerk of the Court]

B-214561.3, SEP 26, 1986, 65 COMP.GEN. 876

ACCOUNTABLE OFFICERS - PHYSICAL LOSSES, ETC. OF FUNDS, VOUCHERS, ETC. - WITHOUT NEGLIGENCE OR FAULT UPON RECONSIDERATION, THE CLERK OF A FEDERAL DISTRICT COURT IS GRANTED RELIEF FROM FINANCIAL LIABILITY (PURSUANT TO 31 U.S.C. SEC. 3527 (1982)) FOR THE UNEXPLAINED PHYSICAL LOSS OF U.S. CURRENCY ENTRUSTED AS EVIDENCE TO HIS SUBORDINATES. RELIEF IS GRANTED BECAUSE IT IS NOT CLEAR THAT THE CLERK'S NEGLIGENCE (AS COMPARED TO THAT OF HIS SUBORDINATES) WAS THE PROXIMATE CAUSE OF THE LOSS. DECISION IN 64 COMP.GEN. 489 (1984) OVERRULED.

TO MARK S. MANDELL, ESQUIRE, MANDELL, GOODMAN, FAMIGLIETTI & SCHWARTZ, LTD., SEPTEMBER 26, 1986:

WE UNDERSTAND THAT YOU REPRESENT MR. FREDERICK R. DECESARIS (CLERK OF THE COURT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND) IN THE MATTER OF HIS LIABILITY FOR THE LOSS IN 1981 OF $4,301 ENTRUSTED TO PERSONS UNDER HIS SUPERVISION. THIS LETTER RESPONDS TO HIS REQUEST (DATED JULY 18, 1985) FOR RECONSIDERATION OF OUR PREVIOUS DECISION WHICH DECLINED TO RELIEVE MR. DECESARIS (UNDER 31 U.S.C. SEC. 3527 (1982)) FROM FINANCIAL LIABILITY FOR THIS LOSS. SEE 63 COMP.GEN. 489 (1984). AS EXPLAINED BELOW, WE NOW CONCLUDE, ON THE BASIS OF THE NEW EVIDENCE HE HAS SUBMITTED, THAT OUR ORIGINAL DECISION IN THIS MATTER SHOULD BE REVERSED TO GRANT MR. DECESARIS RELIEF FROM FINANCIAL LIABILITY FOR THIS LOSS.

BACKGROUND

ON OCTOBER 22, 1981, IT WAS DISCOVERED THAT A TOTAL OF $4,301 IN UNITED STATES CURRENCY WAS MISSING FROM AN EVIDENCE "CAGE" USED BY THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. THOSE FUNDS WERE BEING KEPT AS PHYSICAL EVIDENCE IN TWO MATTERS THEN PENDING BEFORE THE COURT. THE LOSS WAS INITIALLY DISCOVERED BY THE TWO DEPUTY COURTROOM CLERKS TO WHOM THOSE FUNDS HAD BEEN ENTRUSTED. AN INVESTIGATION BY THE FEDERAL BUREAU OF INVESTIGATION (FBI) PROVED INCONCLUSIVE, AND WAS CLOSED WITHOUT FURTHER ACTION OR RECOMMENDATIONS. FOR THIS REASON, THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (AOUSC) REQUESTED THAT WE GRANT RELIEF FROM FINANCIAL LIABILITY (PURSUANT TO 31 U.S.C. SEC. 3527) TO THE TWO DEPUTY COURTROOM CLERKS. THE DIRECTOR SUGGESTED THAT THEIR SUPERVISOR, THE CLERK OF THE COURT (MR. DECESARIS), SHOULD NOT BE HELD LIABLE FOR THE LOSS.

DISCUSSION

ACCOUNTABLE OFFICERS ARE AUTOMATICALLY AND STRICTLY LIABLE FOR FUNDS ENTRUSTED TO THEM. 64 COMP.GEN. 607 (1985). HOWEVER, GAO IS AUTHORIZED BY 31 U.S.C. SEC. 3527 TO RELIEVE AN ACCOUNTABLE OFFICER FROM LIABILITY FOR A PHYSICAL LOSS OF FUNDS, IF GAO CONCURS WITH ADMINISTRATIVE DETERMINATIONS MADE BY THE REQUESTING AGENCY TO THE EFFECT THAT THE LOSS OCCURRED WHILE THE ACCOUNTABLE OFFICER WAS ACTING IN THE DISCHARGE OF OFFICIAL DUTIES AND THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER. FOR THIS REASON, THE LOSS OF FUNDS ENTRUSTED TO AN ACCOUNTABLE OFFICER ORDINARILY RAISES A REBUTTABLE PRESUMPTION OF NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER. COMP.GEN. AT 492.

IN ACCORDANCE WITH THESE PRINCIPLES, OUR PREVIOUS DECISION HELD THAT RELIEF SHOULD BE GIVEN TO THE TWO DEPUTY COURTROOM CLERKS WHO ACTUALLY HAD CUSTODY OF THE MISSING FUNDS. ALTHOUGH WE FOUND THEM TO BE NEGLIGENT, WE DID NOT BELIEVE THAT THEIR NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE LOSS.

IN OUR PREVIOUS DECISION, RELIEF WAS GRANTED TO THE DEPUTY CLERKS, DESPITE OUR FINDING THAT THEY DID NOT "BEHAVE AS REASONABLY AND PRUDENTLY AS THEY MIGHT HAVE." THIS WAS BECAUSE ON THE BASIS OF THE EVIDENCE PROVIDED TO US AT THAT TIME, CONSISTING OF DOCUMENTARY EVIDENCE, INCLUDING AFFIDAVITS, INVESTIGATIONAL REPORTS, AND FBI INTERVIEW REPORTS, ALL SUBMITTED BY THE AOUSC, WE CONCLUDED THAT "PERVASIVE LAXITY IN THE POLICIES, PROCEDURES, AND FACILITIES ESTABLISHED IN THE CLERK'S OFFICE WAS RESPONSIBLE FOR THE LOSS." 63 COMP.GEN. AT 494. THAT CONCLUSION RESTED UPON FIVE BASIC FINDINGS:

(1) THE EVIDENCE CAGE COMBINATIONS WERE NOT KEPT CONFIDENTIAL OR PERIODICALLY CHANGED.

(2) THE DESIGN AND CONSTRUCTION OF THE CAGES ASSIGNED TO THE DEPUTY COURTROOM CLERKS WERE OBVIOUSLY DEFICIENT.

(3) ACCESS TO THE VAULT (WHICH CONTAINED THE CAGES) WAS NOT ADEQUATELY CONTROLLED. THIS LEFT IT VULNERABLE TO UNSUPERVISED VISITS BY VARIOUS AUTHORIZED AND UNAUTHORIZED PERSONS.

(4) THERE WERE NOT ADEQUATE PROCEDURES GOVERNING THE PROTECTION OF EVIDENCE (INCLUDING MONEY AND OTHER VALUABLES) THAT WAS ENTRUSTED TO THE DEPUTY COURTROOM CLERKS IN THE NORMAL COURSE OF THEIR DUTIES.

(5) TWO DEPUTY COURTROOM CLERKS WERE ASSIGNED TO THE SAME CAGE. THIS DEPRIVED THEM OF EXCLUSIVE CONTROL OVER THE EVIDENCE ENTRUSTED TO THEM, AND DEPRIVED THE CLERK'S OFFICE OF ACCOUNTABILITY AMONG THE DEPUTY COURTROOM CLERKS FOR ITEMS ENTRUSTED TO THEM. 63 COMP.GEN. AT 494.

THE NEW EVIDENCE SUBMITTED BY MR. DECESARIS CONSISTS OF HIS 19-PAGE LETTER AND 27 ATTACHMENTS TO IT (INCLUDING A NUMBER OF NEW AFFIDAVITS AND EXCERPTS FROM SEVERAL DOCUMENTS). THE DOCUMENTS SUBMITTED BY MR. DECESARIS INCLUDE AN EXCERPT FROM A REPORT MADE BY AN AOU.S.C. "MANAGEMENT REVIEW TEAM" PRIOR TO THE LOSS IN QUESTION WHICH STATES, "THE PRESENT SYSTEM OF MAINTAINING EXHIBITS IN (MR. DECESARIS') OFFICE IS ONE OF THE MORE SECURE SYSTEMS OBSERVED BY MANAGEMENT REVIEW."

CONCLUSIONS

WE HAVE CAREFULLY RECONSIDERED OUR PREVIOUS DECISION IN LIGHT OF THE NEW SUBMISSIONS BY MR. DECESARIS. ON SOME POINTS, THE NEW SUBMISSIONS CONFLICT WITH THE FINDINGS OF OUR ORIGINAL DECISION. IN THIS REGARD, MR. DECESARIS HAS PRESENTED ADDITIONAL INFORMATION WHICH CASTS DOUBT ON THE BASIC FINDINGS IN OUR ORIGINAL DECISION.

FOR EXAMPLE, MR. DECESARIS HAS PRESENTED NEW EVIDENCE BY WAY OF AFFIDAVITS THAT EMPLOYEES OF THE CLERK'S OFFICE WERE WELL AWARE THAT OFFICE PROCEDURE REQUIRED THE COMBINATIONS ON THE EVIDENCE CAGE LOCKS TO BE PERIODICALLY CHANGED, THAT THE DEPUTY CLERKS IN CHARGE OF THE EVIDENCE CAGE FROM WHICH THE MISSING MONEY DISAPPEARED WERE SPECIFICALLY INFORMED OF THE PROCEDURE, THAT THE LOCK ON THAT PARTICULAR CAGE HAD BEEN REPLACED FOLLOWING AN ATTEMPT TO CHANGE, THE COMBINATION "ON OR BEFORE" JANUARY L4, 1981, AND THAT SPECIFIC INSTRUCTIONS AS TO THE NEED TO PRESERVE CONFIDENTIALITY OF THE COMBINATIONS WERE GIVEN TO THE DEPUTY CLERKS IN QUESTION. WHILE THIS NEW EVIDENCE DOES NOT DEMONSTRATE THAT THE COMBINATION IN QUESTION WAS IN FACT DIFFERENT WHEN THE LOSS OCCURRED THAN THE ONE THAT HAD BEEN IN USE FOR SEVERAL YEARS, OR THAT CONFIDENTIALITY WAS IN FACT MAINTAINED BY THE DEPUTY CLERKS, IT DOES TEND TO SUPPORT MR. DECESARIS' CLAIM THAT REASONABLE PROCEDURES WERE IN PLACE AND THAT REASONABLE STEPS WERE TAKEN TO ENFORCE THEM.

SIMILARLY, THE NEW EVIDENCE SUGGESTS THAT CONTROLS OVER ACCESS TO THE VAULT IN WHICH THE EVIDENCE CAGES WERE LOCATED WERE IN PLACE AND THAT AN ALARM SYSTEM DESIGNED TO PRECLUDE UNAUTHORIZED ACCESS TO THE CAGES WAS CUSTOMARILY IN OPERATION IN THE VAULT. THUS, WHILE THE CAGES THEMSELVES (WHICH HAVE SINCE BEEN MODIFIED) MAY HAVE BEEN DEFICIENTLY DESIGNED AND CONSTRUCTED, AS WE ORIGINALLY CONCLUDED, THE NEW EVIDENCE TENDS TO SUPPORT MR. DECESARIS' CLAIM THAT CONTROL OVER ACCESS TO THE VAULT AND THE CAGES NEVERTHELESS WAS REASONABLY ADEQUATE.

FINALLY, THE FAVORABLE REPORT OF THE AOU.S.C. "MANAGEMENT REVIEW TEAM" DEMONSTRATES THAT THE PROCEDURES GOVERNING THE PROTECTION OF EVIDENCE WERE CONSIDERED TO BE ADEQUATE BEFORE THE LOSS IN QUESTION WAS DISCOVERED.

WHILE IT REMAINS TRUE THAT THE ASSIGNMENT OF TWO CLERKS TO THE SAME CAGE MAKES A DETERMINATION OF PECUNIARY LIABILITY IN THE EVENT OF A LOSS DIFFICULT, IF NOT IMPOSSIBLE, MR. DECESARIS EXPLAINS THAT THIS PROCEDURE WAS DICTATED BY THE SENIOR JUDGE IN ORDER TO ASSURE READY ACCESS TO EVIDENCE WHEN NEEDED BY JUDGES. IN ANY EVENT, EVEN HAD MR. DECESARIS, RATHER THAN THE SENIOR JUDGE, BEEN RESPONSIBLE FOR THE PROCEDURE WHICH PROVIDED FOR DUAL ACCESS TO THE EVIDENCE CAGES, THIS FACTOR ALONE WOULD NOT, IN OUR VIEW, SUPPORT A FINDING THAT HE WAS RESPONSIBLE FOR THE LOSS IN QUESTION.

THE ADDITIONAL FACTS PRESENTED BY MR. DECESARIS RAISE SUFFICIENT DOUBT AS TO WHETHER LAX PROCEDURES WERE THE PROXIMATE CAUSE OF THE LOSS TO CAUSE US TO CHANGE OUR ORIGINAL CONCLUSION. ACCORDINGLY, WE NOW CONCLUDE THAT MR. DECESARIS SHOULD BE GRANTED RELIEF FROM LIABILITY FOR THIS LOSS PURSUANT TO 31 U.S.C. SEC. 3527. A REFUND FOR THE FULL AMOUNT OF THE LOSS, WHICH WE UNDERSTAND HAS BEEN WITHHELD FROM HIS PAY, SHOULD BE MADE TO HIM PROMPTLY. OUR DECISION IN 64 COMP.GEN. 489 IS OVERRULED ACCORDINGLY.