B-158699, MAR 14, 1972

B-158699: Mar 14, 1972

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TOMLINSON WAS NOT PERSONALLY NEGLIGENT. THE REQUEST FOR RELIEF IN THIS MATTER WAS ORIGINALLY DENIED BY A LETTER DATED SEPTEMBER 7. THE DENIAL WAS SUSTAINED BY OUR DECISION OF MAY 16. THE FACTS INVOLVED HEREIN ARE SET FORTH IN DETAIL IN OUR DECISION OF MAY 16. SUSTAINED DENIAL OF RELIEF BECAUSE THE RECORD INDICATED THAT SIX PERSONS IN THE OFFICE WERE KNOWN TO HAVE THE COMBINATION TO THE SAFE AND ONE PERSON. THIS WAS DEEMED A VERY POOR SECURITY PRACTICE AND WAS DEEMED THE PROXIMATE CAUSE OF THE LOSS BECAUSE. WE CONSIDERED IT REASONABLE TO CONCLUDE THAT THE WRITTEN COMBINATION WAS USED BY THE BURGLAR TO OPEN THE SAFE. TOMLINSON WAS HELD RESPONSIBLE ON THE BASIS THAT HE KNEW OR SHOULD HAVE KNOWN OF SUCH POOR SECURITY PRACTICES.

B-158699, MAR 14, 1972

CIVILIAN EMPLOYEE - LOSS OF GOVERNMENT FUNDS - RELIEF REQUESTED DECISION DISAFFIRMING PRIOR DENIAL OF RELIEF TO LAURIE W. TOMLINSON, FORMER DISTRICT DIRECTOR OF INTERNAL REVENUE AT JACKSONVILLE, FLA., FOR A LOSS OF FUNDS WHICH OCCURRED AS A RESULT OF A ROBBERY IN HIS FORT LAUDERDALE COLLECTION AREA OFFICE. SUBSEQUENT TO THE PRIOR DENIAL, THE COMP. GEN. HAS BEEN FURNISHED WITH CONSIDERABLE ADDITIONAL INFORMATION WHICH WOULD INDICATE THAT MR. TOMLINSON WAS NOT PERSONALLY NEGLIGENT. ACCORDINGLY, HE MAY BE RELIEVED OF LIABILITY IN THIS MATTER.

TO MR. SECRETARY:

BY LETTER OF SEPTEMBER 13, 1971, WITH ENCLOSURES, THE HONORABLE JOHNNIE M. WALTERS, COMMISSIONER OF INTERNAL REVENUE, REQUESTED FURTHER RECONSIDERATION OF OUR PRIOR DENIAL OF RELIEF TO MR. LAURIE W. TOMLINSON, FORMER DISTRICT DIRECTOR OF INTERNAL REVENUE AT JACKSONVILLE, FLORIDA, FOR A LOSS OF FUNDS WHICH OCCURRED AS A RESULT OF A ROBBERY IN HIS FORT LAUDERDALE COLLECTION AREA OFFICE. THE REQUEST FOR RELIEF IN THIS MATTER WAS ORIGINALLY DENIED BY A LETTER DATED SEPTEMBER 7, 1966, FROM OUR CIVIL DIVISION, AND THE DENIAL WAS SUSTAINED BY OUR DECISION OF MAY 16, 1968, B- 158699, TO THE SECRETARY OF THE TREASURY. MR. WALTERS' LETTER OF SEPTEMBER 13, 1971, AND ITS ENCLOSURES, FURNISHED CONSIDERABLE ADDITIONAL INFORMATION NOT AVAILABLE TO OUR OFFICE AT THE TIME OF OUR PRIOR CONSIDERATION OF THIS MATTER.

THE FACTS INVOLVED HEREIN ARE SET FORTH IN DETAIL IN OUR DECISION OF MAY 16, 1968, SUPRA, AND IN MR. WALTERS' LETTER OF SEPTEMBER 13, 1971, AND NEED NOT BE REPEATED HERE. BRIEFLY, OUR DECISION OF MAY 16, 1968, SUSTAINED DENIAL OF RELIEF BECAUSE THE RECORD INDICATED THAT SIX PERSONS IN THE OFFICE WERE KNOWN TO HAVE THE COMBINATION TO THE SAFE AND ONE PERSON, CASHIER PAULINE A. PETTIS, ACTUALLY HAD THE COMBINATION WRITTEN IN RED PENCIL ON A PAPER WHICH SHE KEPT IN THE CENTER DRAWER OF HER DESK. THIS WAS DEEMED A VERY POOR SECURITY PRACTICE AND WAS DEEMED THE PROXIMATE CAUSE OF THE LOSS BECAUSE, ON THE BASIS OF THE INFORMATION THEN BEFORE OUR OFFICE, WE CONSIDERED IT REASONABLE TO CONCLUDE THAT THE WRITTEN COMBINATION WAS USED BY THE BURGLAR TO OPEN THE SAFE. MR. TOMLINSON WAS HELD RESPONSIBLE ON THE BASIS THAT HE KNEW OR SHOULD HAVE KNOWN OF SUCH POOR SECURITY PRACTICES.

THE LETTER FROM MR. WALTERS HAS NOW SATISFACTORILY EXPLAINED THE NECESSITY FOR PERMITTING SIX PERSONS IN THE OFFICE TO HAVE THE SAFE COMBINATION, AND THIS WILL NO LONGER BE CONSIDERED SUCH NEGLIGENCE AS TO WARRANT DENIAL OF RELIEF TO MR. TOMLINSON. LIKEWISE, IT NOW APPEARS THAT THE WRITTEN COMBINATION TO THE SAFE KEPT IN MRS. PETTIS' DESK DRAWER WAS NOT USED TO OPEN THE SAFE, SINCE INFORMATION FURNISHED BY MR. WALTERS SHOWS THAT THE COMBINATION WAS HIDDEN UNDER OTHER PAPERS IN THE DESK DRAWER AND DID NOT APPEAR TO HAVE BEEN DISTURBED; THE KEYS WHICH WERE USED TO OPEN THE MONEY BAGS TAKEN FROM THE SAFE HAD BEEN KEPT IN SEPARATE DRAWERS IN THE CASHIER'S COUNTER AND NOT IN THE SAME DESK DRAWER AS THE WRITTEN COMBINATION; AND THE BURGLAR HIMSELF HAS UNEQUIVOCALLY STATED THAT HE DID NOT FIND OR USE THE WRITTEN COMBINATION, BUT HAD FOUND THE SAFE UNLOCKED. THUS, WHILE THE KEEPING OF THE WRITTEN COMBINATION TO THE SAFE IN A DESK DRAWER WAS NEGLIGENCE, SUCH NEGLIGENCE DOES NOT NOW APPEAR TO HAVE BEEN THE PROXIMATE CAUSE OF THE LOSS AND DOES NOT WARRANT DENIAL OF RELIEF. MOREOVER, THE LETTER FROM MR. WALTERS NOW DISCLOSES THAT MR. TOMLINSON, AS DISTRICT DIRECTOR, HAD INSTITUTED ADEQUATE SECURITY PRACTICES IN HIS DISTRICT, AND HAD THE VARIOUS OFFICES, INCLUDING THAT AT FORT LAUDERDALE, CHECKED PERIODICALLY BY COMPETENT PERSONNEL TO DETERMINE WHETHER THE SECURITY PRACTICES WERE BEING PROPERLY FOLLOWED. HENCE, IT CANNOT NOW BE SAID THAT MR. TOMLINSON WAS NEGLIGENT IN THE PERFORMANCE OF HIS DUTIES.

OBVIOUSLY, LEAVING THE SAFE UNLOCKED WAS NEGLIGENT. HOWEVER, THE RECORD NOW BEFORE US INDICATES THAT THE SAFE WAS LOCKED AT THE CLOSE OF BUSINESS ON THE WEEKEND OF THE ROBBERY, BUT THAT DURING THE WEEKEND SEVERAL OF THE PERSONNEL OF THE OFFICE, WHOSE IDENTITY CANNOT BE DETERMINED AT THIS LATE DATE, ENTERED THE OFFICE AND OPENED THE SAFE FOR VARIOUS PURPOSES, AND IT WOULD APPEAR THAT THE LAST OF SUCH PERSONS FAILED TO ADEQUATELY SECURE THE SAFE. OBVIOUSLY, WHILE SUCH FAILURE TO SECURE THE SAFE CONSTITUTED NEGLIGENCE AND APPEARS TO BE THE PROXIMATE CAUSE OF THE LOSS, SUCH NEGLIGENCE CANNOT IN ANY WAY BE ATTRIBUTED TO MR. TOMLINSON. MOREOVER, SINCE IT IS IMPOSSIBLE TO DETERMINE THE IDENTITY OF THE NEGLIGENT PARTY, NO CHARGE MAY BE RAISED AGAINST ANY INDIVIDUAL.

IN VIEW OF THE ABOVE, MR. TOMLINSON MAY NOW BE RELIEVED OF LIABILITY IN THE MATTER, AND OUR CIVIL DIVISION IS BEING INSTRUCTED TO INSTITUTE THE APPROPRIATE ACTION HEREIN.

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