[Protest of Air Force Rejection of Bid for Custodial Services]

B-214276, SEP 17, 1984, OFFICE OF GENERAL COUNSEL

ACCOUNTABLE OFFICERS - PHYSICAL LOSSES, ETC. OF FUNDS, VOUCHERS, ETC. - CASHIERS, ETC. - IMPREST FUND - RELIEF GRANTED DIGEST: AGENT CASHIER OF ALASKA NATIVE MEDICAL CENTER IS RELIEVED OF LIABILITY FOR IMPREST FUND LOSS SUSTAINED IN AFTER HOURS BURGLARY IN WHICH SAFE DOOR WAS REMOVED BY HINGES. RECORD SUPPORTS AGENCY DETERMINATION THAT LOSS WAS NOT ATTRIBUTABLE TO AGENT CASHIER'S FAULT OR NEGLIGENCE.

MR. JOHN J. O'SHAUGHNESSY ASSISTANT SECRETARY FOR MANAGEMENT AND BUDGET DEPARTMENT OF HEALTH AND HUMAN SERVICES WASHINGTON, D.C. 20201

DEAR MR. O'SHAUGHNESSY:

THIS IS IN RESPONSE TO YOUR LETTER OF JANUARY 19, 1984, REQUESTING RELIEF FOR ALASKA AREA NATIVE HEALTH SERVICE AGENT CASHIER, CONSOLACION B. SNIPES. THE IMPREST FUND MAINTAINED BY MS. SNIPES SUSTAINED A LOSS OF $4,833.10 IN AN AFTER HOURS BURGLARY ON APRIL 3, 1978. AN ADMINISTRATIVE DETERMINATION HAS FOUND MS. SNIPES TO BE WITHOUT FAULT OR NEGLIGENCE IN THE LOSS. WE CONCUR IN THAT JUDGMENT AND GRANT RELIEF PURSUANT TO 31 U.S.C. SEC. 3527 (1982).

THE RECORD IN THIS CASE SHOWS THAT SOMETIME BEFORE REGULAR WORKING HOURS ON MONDAY, APRIL 3, 1978, A THIEF ENTERED MS. SNIPES' OFFICE AT THE ALASKA NATIVE MEDICAL CENTER IN ANCHORAGE, ALASKA. ENTRY WAS GAINED BY BREAKING A THIRD FLOOR WINDOW. THE OFFICE DOOR WAS LOCKED AND THE THIEF ELUDED PERIODIC SECURITY PATROLS AT THE BUILDING. THE THIEF FORCED THE SAFE OPEN BY DISMANTLING THE HINGES AND HE REMOVED A TOTAL OF $9,967.10, INCLUDING $4,833.10 IN IMPREST FUND CASH. IN OCTOBER 1978, FBI AGENTS ARRESTED A SUSPECT IN THE BURGLARY. AT TRIAL, THE SUSPECT PLEADED GUILTY TO THE CHARGE OF THEFT OF GOVERNMENT PROPERTY. APPARENTLY HE HAS NOT VOLUNTARILY MADE RESTITUTION AND RESTITUTION WAS NOT ORDERED BY THE COURT AT SENTENCING.

UNDER 31 U.S.C. SEC. 3527 OUR OFFICE IS AUTHORIZED TO RELIEVE ACCOUNTABLE OFFICERS OF RESPONSIBILITY FOR PHYSICAL LOSS OR DEFICIENCY OF GOVERNMENT FUNDS IF WE CONCUR IN THE DETERMINATION BY THE HEAD OF AN AGENCY THAT--

"(A) THE OFFICIAL OR AGENT WAS CARRYING OUT OFFICIAL DUTIES WHEN THE LOSS OR DEFICIENCY OCCURRED, OR THE LOSS OR DEFICIENCY OCCURRED BECAUSE OF AN ACT OR FAILURE TO ACT BY A SUBORDINATE OF THE OFFICIAL OR AGENT; AND

"(B) THE LOSS OR DEFICIENCY WAS NOT THE RESULT OF FAULT OR NEGLIGENCE BY THE OFFICIAL OR AGENT ***."

THERE IS A REBUTTABLE PRESUMPTION OF NEGLIGENCE ON THE PART OF AN ACCOUNTABLE OFFICER ANY TIME A PHYSICAL LOSS OF FUNDS OCCURS. COMP.GEN. 112, 115 (1974). THE MERE FACT THAT THE CRIMINAL ACT OF AN UNKNOWN THIRD PARTY ACTUALLY OCCASIONED THE LOSS DOES NOT AUTOMATICALLY EXONERATE THE ACCOUNTABLE OFFICER. HIS OR HER NEGLIGENCE MAY STILL BE THE PROXIMATE CAUSE OF THE THEFT. SEE, E.G., B-188733, MARCH 29, 1979 AFF'D JANUARY 17, 1980. (SAFE LEFT OVERNIGHT IN "DAY LOCK" POSITION.) HOWEVER, WHEN A BURGLARY OCCURS, EVIDENCE OF FORCED ENTRY TO THE SAFE ITSELF IS SUFFICIENT TO REBUT THE PRESUMPTION OF NEGLIGENTLY PERMITTING ACCESS TO ITS CONTENTS. PRESUMABLY A SAFE WOULD NOT BE PRIED OPEN OR ITS DOOR REMOVED BY THE HINGES IF THE SAFE WERE UNLOCKED.

IN THIS PARTICULAR CASE THE SAFE DOOR WAS REMOVED FROM THE HINGES. THE LOSS OCCASIONED BY FORCIBLE ENTRY TO A CORRECTLY LOCKED SAFE COULD NOT HAVE BEEN PREVENTED BY MS. SNIPES: THERE IS NO BREACH OF DUTY IN SUCH CIRCUMSTANCES. WE REACHED THE SAME RESULT ON NEARLY IDENTICAL FACTS IN B-201651, FEBRUARY 9, 1981.

THUS, THE RECORD SUPPORTS THE DETERMINATION THAT THERE WAS NO NEGLIGENCE ON MS. SNIPES' PART. ACCORDINGLY, RELIEF IS IN ORDER FOR CONSOLACION B. SNIPES. THE RECORD SHOWS THAT MS. SNIPES' IMPREST FUND WAS FULLY REPLENISHED A FEW DAYS AFTER THE BURGLARY. SINCE THAT TIME THE LOSS HAD BEEN CARRIED IN THE ACCOUNT OF THE DIRECTOR, ANCHORAGE DISBURSING CENTER. THE DIRECTOR'S ACCOUNT MAY BE RESTORED AT THIS TIME IN THE AMOUNT OF $4,833.10. THE APPROPRIATION TO BE CHARGED IS 75-0390 (INDIAN HEALTH SERVICE).