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B-163436, OCT. 30, 1968

B-163436 Oct 30, 1968
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WHO WAS OFFICIALLY DESIGNATED AS AN ACCOUNTABLE OFFICER. THE CASH WAS KEPT IN A LOCKED METAL BOX WHICH. WAS IN A CLOSED DRAWER OF HER DESK. THE DRAWER WAS UNLOCKED. AS WAS THE CUSTOM IN THE OFFICE DURING WORKING HOURS. MISS SCHINDLER'S DESK WAS IN A POSITION WHERE IT COULD BE REACHED FROM SEVERAL DOORS OPENING INTO AN OUTSIDE HALLWAY AND WHERE IT COULD NOT BE KEPT UNDER THE DIRECT SCRUTINY OF ANY OTHER OFFICE MEMBER. WHILE MISS SCHINDLER WAS AT LUNCH. THE LOSS OF THE METAL BOX WAS DISCOVERED WHEN MISS SCHINDLER RETURNED TO HER OFFICE. THE LOCAL POLICE WERE CALLED IN TO INVESTIGATE. THEY ALSO WERE UNABLE TO PRODUCE ANY EVIDENCE ABOUT THE LOSS. PURSUANT TO A REQUEST FOR ADVICE AS TO WHETHER IT WAS APPROPRIATE FOR THE PEACE CORPS TO REQUEST THE COMPTROLLER GENERAL TO RELIEVE MISS SCHINDLER OF RESPONSIBILITY FOR THIS LOSS UNDER 31 U.S.C. 82A-1.

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B-163436, OCT. 30, 1968

TO MR. VAUGHN:

THERE HAS COME TO OUR ATTENTION THE CASE OF MISS CHRISTINE A. SCHINDLER, A PEACE CORPS VOLUNTEER SECRETARY IN URUGUAY, WHO WAS OFFICIALLY DESIGNATED AS AN ACCOUNTABLE OFFICER, A CLASS ,B" SUB CASHIER.

ON AUGUST 24, 1966, 5,000 URUGUAYAN PESOS (U.S. $77.40) IN IMPREST FUNDS DISAPPEARED FROM MISS SCHINDLER'S DESK. THE CASH WAS KEPT IN A LOCKED METAL BOX WHICH, PRIOR TO THE DISCOVERY OF THE LOSS, WAS IN A CLOSED DRAWER OF HER DESK. THE DRAWER WAS UNLOCKED, AS WAS THE CUSTOM IN THE OFFICE DURING WORKING HOURS, AND MISS SCHINDLER'S DESK WAS IN A POSITION WHERE IT COULD BE REACHED FROM SEVERAL DOORS OPENING INTO AN OUTSIDE HALLWAY AND WHERE IT COULD NOT BE KEPT UNDER THE DIRECT SCRUTINY OF ANY OTHER OFFICE MEMBER. THE MONEY APPARENTLY DISAPPEARED BETWEEN 12:15 P.M. AND :00 P.M. ON AUGUST 24, 1966, WHILE MISS SCHINDLER WAS AT LUNCH. THE LOSS OF THE METAL BOX WAS DISCOVERED WHEN MISS SCHINDLER RETURNED TO HER OFFICE. A SEARCH FAILED TO DISCLOSE ANY INFORMATION CONCERNING THE WHEREABOUTS OF THE BOX. THE LOCAL POLICE WERE CALLED IN TO INVESTIGATE, BUT THEY ALSO WERE UNABLE TO PRODUCE ANY EVIDENCE ABOUT THE LOSS.

PURSUANT TO A REQUEST FOR ADVICE AS TO WHETHER IT WAS APPROPRIATE FOR THE PEACE CORPS TO REQUEST THE COMPTROLLER GENERAL TO RELIEVE MISS SCHINDLER OF RESPONSIBILITY FOR THIS LOSS UNDER 31 U.S.C. 82A-1, YOUR GENERAL COUNSEL, IN A MEMORANDUM TO YOUR CONTROLLER DATED JUNE 7, 1967, DETERMINED THAT MISS SCHINDLER WAS PERSONALLY NEGLIGENT IN LEAVING THE CASH IN AN UNLOCKED DESK DRAWER WHILE SHE WAS OUT OF THE OFFICE FOR A PERIOD OF ALMOST TWO HOURS, DURING WHICH TIME NO OTHER PERSON IN THE OFFICE WAS ABLE TO CONTROL ACCESS TO HER DESK AND, HENCE, WAS NOT ELIGIBLE FOR RELIEF UNDER THE CITED ACT. IN THE SAME MEMORANDUM, YOUR GENERAL COUNSEL ALSO DETERMINED THAT MRS. EMA RODRIQUEZ RISSO, THE PRINCIPAL CLASS "B" CASHIER WHO WAS ACCOUNTABLE TO THE DISBURSING OFFICER FOR THE IMPREST FUNDS IN MISS SCHINDLER'S POSSESSION, CONTRIBUTED TO THE LOSS BY PERMITTING SUCH FUNDS TO BE HELD IN THE INADEQUATE MANNER DESCRIBED AND, HENCE, WAS LIKEWISE NEGLIGENT AND INELIGIBLE FOR RELIEF UNDER 31 U.S.C. 82A-1. HOWEVER, YOUR GENERAL COUNSEL FURTHER DETERMINED THAT 31 U.S.C. 82A-1 WAS ONE OF THE "LAWS AND REGULATIONS GOVERNING THE OBLIGATION AND EXPENDITURE OF GOVERNMENT FUNDS" WHICH THE PEACE CORPS IS AUTHORIZED BY SECTION 15 (A) OF THE PEACE CORPS ACT (22 U.S.C. 2514 (A) ( TO WAIVE, AND THAT UNDER THE AUTHORITY OF THAT SECTION PEACE CORPS APPROPRIATED FUNDS COULD BE USED TO RESTORE THE AMOUNT OF THE LOSS -- PRINCIPALLY UPON THE BASIS THAT BECAUSE MISS SCHINDLER WAS A VOLUNTEER; HAD VERY RELUCTANTLY AGREED TO ASSIGNMENT AS AN ACCOUNTABLE OFFICER; AND SINCE THE PEACE CORPS WAS AT FAULT IN PERMITTING IMPROPER PROCEDURES, IT WOULD BE A HARDSHIP AND INEQUITABLE TO REQUIRE HER TO REPAY THE LOSS.

WHILE THE PHRASE "LAWS AND REGULATIONS GOVERNING THE OBLIGATION AND EXPENDITURE OF GOVERNMENT FUNDS" IS DIFFICULT OF EXACT DEFINITION, 31 U.S.C. 82A-1 IS CLEARLY NOT ONE OF THE LAWS WHICH THAT PHRASE WAS INTENDED TO AUTHORIZE TO BE WAIVED. THE AUTHORITY TO RELIEVE ACCOUNTABLE OFFICERS IS A MATTER WHICH THE CONGRESS, WITH A FEW EXCEPTIONS EXPRESSED IN SPECIFIC STATUTES AND NOT HERE MATERIAL, HAS EITHER RETAINED ITSELF OR PLACED WITHIN THE PROVINCE OF THE COMPTROLLER GENERAL AND THE GENERAL ACCOUNTING OFFICE. 31 U.S.C. 82A 1 IS PURELY AND SIMPLY A RELIEF STATUTE, AUTHORIZING THE GENERAL ACCOUNTING OFFICE, UNDER STIPULATED CONDITIONS, TO GRANT AN ACCOUNTABLE OFFICER RELIEF FROM LIABILITY FOR THE PHYSICAL LOSS OF GOVERNMENT FUNDS, ETC. THE PART OF THE ACT RELIED UPON BY YOUR GENERAL COUNSEL IS AN INCIDENTAL PORTION THEREOF AUTHORIZING THE GENERAL ACCOUNTING OFFICE, IN THE DISCRETION OF THE COMPTROLLER GENERAL, TO "RESTORE OR OTHERWISE ADJUST" AN ACCOUNTABLE OFFICER'S ACCOUNT BY CHARGING THE APPROPRIATION OF THE AGENCY INVOLVED -- IN THIS INSTANCE, THE PEACE CORPS -- OR TO AUTHORIZE REIMBURSEMENT FROM THE FUNDS OF THE AGENCY INVOLVED OF AMOUNTS PAID BY OR ON BEHALF OF SUCH OFFICER IN RESTITUTION OF THE LOSS, INCIDENT TO AND AS A MEANS OF ACCOMPLISHING RELIEF OF AN ACCOUNTABLE OFFICER WHO OTHERWISE IS ELIGIBLE FOR RELIEF UNDER THE TERMS OF THAT ACT.

THE PORTION OF 31 U.S.C. 82A-1 RELIED UPON BY YOUR GENERAL COUNSEL AUTHORIZES THE GENERAL ACCOUNTING OFFICE OR THE COMPTROLLER GENERAL TO CHARGE AN AGENCY'S APPROPRIATION TO REIMBURSE AN ACCOUNTABLE OFFICER WHO HAS MADE RESTITUTION OR TO ADJUST AN ACCOUNTABLE OFFICER'S ACCOUNT ONLY WHERE THE GAO HAS DETERMINED THAT SUCH OFFICER IS ENTITLED TO RELIEF UNDER THE PROVISIONS OF THAT ACT. THE WAIVER AUTHORITY CONTAINED IN SECTION 15 (A) OBVIOUSLY REFERS TO "LAWS AND REGULATIONS GOVERNING THE OBLIGATION AND EXPENDITURE OF GOVERNMENT FUNDS" BY THE PEACE CORPS. WE FAIL TO SEE HOW IT COULD BE CONSTRUED TO AUTHORIZE THE PEACE CORPS TO "WAIVE" A LAW AUTHORIZING THE GENERAL ACCOUNTING OFFICE OR THE COMPTROLLER GENERAL TO CHARGE THE PEACE CORPS APPROPRIATION IN A CASE WHERE RELIEF UNDER THE LAW IS APPROPRIATE, SO AS TO PERMIT THE PEACE CORPS TO USE ITS APPROPRIATION TO ADJUST AN ACCOUNTABLE OFFICER'S ACCOUNT WHERE RELIEF HAS NOT AND CANNOT BE GRANTED UNDER SUCH LAW. BEFORE EVEN THE GAO OR THE COMPTROLLER GENERAL CAN EXERCISE THAT AUTHORITY, RELIEF MUST BE GRANTED OR GRANTABLE UNDER THE TERMS OF 31 U.S.C. 82A-1.

ASIDE FROM THE MATTER OF WAIVING 31 U.S.C. 82A-1, WE QUESTION THE PROPRIETY OF USING SECTION 15 (A) AUTHORITY TO REIMBURSE MISS SCHINDLER'S ACCOUNT FOR FEDERAL FUNDS LOST OR STOLEN BECAUSE OF HER NEGLIGENCE. THERE IS NOTHING IN THE SECTION ITSELF OR IN ITS LEGISLATIVE HISTORY TO INDICATE THAT IT WAS INTENDED TO BE USED FOR THAT PURPOSE. WHILE ITS HISTORY, AS SET OUT IN YOUR GENERAL COUNSEL'S MEMORANDUM OF JUNE 7, 1967, INDICATES THAT IT WAS INTENDED TO BE USED TO "OBVIATE OR MITIGATE HARDSHIP" TO PEACE CORPS PERSONNEL OR TO REIMBURSE SUCH PERSONNEL WHO LOST PERSONAL PROPERTY, IT DOES NOT APPEAR TO HAVE BEEN INTENDED TO "OBVIATE OR MITIGATE HARDSHIP" CAUSED BY SAID PERSONNEL'S NEGLIGENCE, NOR TO REIMBURSE SUCH PERSONNEL FOR PERSONAL PROPERTY LOST THROUGH NEGLIGENCE. ALSO, THE PERSONAL PROPERTY FOR WHICH REIMBURSEMENT WAS INTENDED APPEARS TO HAVE BEEN PERSONAL PROPERTY OWNED BY SAID PERSONNEL, NOT PERSONAL PROPERTY OWNED BY THE GOVERNMENT, SUCH AS THE FUNDS HERE IN QUESTION.

THERE IS ALSO FOR CONSIDERATION THE FACT THAT THE SPECIAL AUTHORITY GRANTED THE PEACE CORPS BY SECTION 15 (A) WAS INTENDED TO ASSIST THE CORPS IN COPING WITH OUT-OF-THE-ORIDNARY CIRCUMSTANCES AND CONDITIONS WHICH IT WAS EXPECTED WOULD BE ENCOUNTERED BECAUSE OF THE UNUSUAL NATURE OF THE DUTIES TO BE PERFORMED BY THE CORPS AND THE OUT-OF-THE WAY AREAS IN WHICH SUCH PERFORMANCE WOULD TAKE PLACE. I AM CERTAIN IT WAS NOT CONTEMPLATED BY THE CONGRESS THAT THIS SPECIAL AUTHORITY WOULD BE RESORTED TO, OR THAT IT EVEN CONTEMPLATED A DISREGARD OF ANY CONTROL WITH RESPECT TO THE NORMAL ADMINISTRATIVE OR OPERATING PROBLEMS ROUTINELY CONFRONTED BY THE ORDINARY GOVERNMENT AGENCY, SUCH AS A NEGLIGENT LOSS OF FUNDS BY AN ACCOUNTABLE OFFICER. CF. 31 COMP. GEN. 191.

IN VIEW OF THE ABOVE, WE MUST HOLD THAT THE AUTHORITY GRANTED TO THE PEACE CORPS BY SECTION 15 (A) OF THE PEACE CORPS ACT, SUPRA, MAY NOT BE USED TO REIMBURSE AN ACCOUNTABLE OFFICER'S ACCOUNT FOR FUNDS LOST THEREFROM THROUGH THE NEGLIGENCE OF THE ACCOUNTABLE OFFICER AND THUS, IN EFFECT, RELIEVE THAT OFFICER FROM LIABILITY FOR SUCH LOSS IN CONTRAVENTION OF THE PROVISIONS OF THE LAW PROPERLY APPLICABLE THERETO,I.E., 31 U.S.C. 82A-1. NEITHER DO WE THINK THAT SECTION 15 (D) (7) OF THE PEACE CORPS ACT AUTHORIZES SUCH ACTION. WHILE NO DISTURBANCE OF THE ACTION ALREADY TAKEN IN MISS SCHINDLER'S CASE WILL BE REQUIRED, ANY FUTURE SIMILAR ADJUSTMENTS OR CHARGES TO APPROPRIATED FUNDS WILL BE DISALLOWED.

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