B-156595, JUN. 24, 1965

B-156595, JUN. 24, 1965

TO THE HONORABLE POSTMASTER GENERAL:

REFERENCE IS MADE TO LETTER DATED OCTOBER 13, 1964, JMB:JLB, FROM MR. J. H. MARKS, FINANCE OFFICER, SUBMITTING FOR OUR CONSIDERATION THE MATTER OF ALLOWING CREDIT UNDER THE PROVISIONS OF 39 U.S.C. 2401, IN M. PARSLEY, POSTMASTER AT BROWNSDALE, MINNESOTA, FOR A SHORTAGE RESULTING FROM HER FAILURE TO COLLECT SUFFICIENT POSTAGE ON 78 MAILINGS OF THIRD-CLASS ADVERTISING MATTER FROM MAY 1961 THROUGH NOVEMBER 1962.

THE AFOREMENTIONED LETTER AND ATTACHMENTS THERETO SHOW THAT THE POST OFFICE AT BROWNSDALE IS THIRD-CLASS AND THAT MISS PARSLEY HAS BEEN POSTMASTER THERE SINCE MARCH 16, 1945. ALSO, THE RECORD SHOWS THAT WHILE THERE HAD FORMERLY BEEN TWO OR THREE THIRD-CLASS BULK PERMIT MAILERS AT THE BROWNSDALE POST OFFICE, AT THE TIME THE SHORTAGE IN QUESTION OCCURRED THERE WAS ONLY ONE SUCH MAILER. THAT MAILER HAD FOR SOME PERIOD OF TIME PRIOR TO MAY 1961 DEPOSITED WEEKLY MAILINGS WHICH AVERAGED BETWEEN 17 AND 18 POUNDS, AND MISS PARSLEY HAD CORRECTLY COMPUTED THE POSTAGE AT THE MINIMUM PER PIECE RATE OF 2 1/2 CENTS.

THE MAILER, BEGINNING MAY 24, 1961, INCREASED HIS MAILINGS FROM 66 TO 156 POUNDS PER WEEK. THESE MAILINGS WERE SUBJECT TO THE THIRD-CLASS RATE PROVIDED FOR IN THE LAW GOVERNING AT THE TIME AND CODIFIED AT 39 U.S.C. 4452 (SUPP. III). THE LAW PROVIDED THAT THE BULK THIRD-CLASS RATE WAS APPLICABLE TO SUCH MAILINGS OF IDENTICAL PIECES IN MINIMUM QUANTITIES OF 200 PIECES OR 20 POUNDS. THE APPLICABLE RATE WAS 16 CENTS PER POUND WITH A MINIMUM OF 2 1/2 CENTS PER PIECE. MISS PARSLEY INCORRECTLY COMPUTED THE POSTAGE ON 78 MAILINGS FROM MAY 24, 1961, THROUGH NOVEMBER 14, 1962, AT THE FLAT POUND RATE RATHER THAN THE MINIMUM 2 1/2 CENTS PER PIECE RATE WHICH RESULTED IN THE SHORTAGE OF $3,927.09.

POSTAL REGULATIONS REGARDING POSTAGE RATES FOR THIRD-CLASS BULK PERMIT MAIL, IN EFFECT IN 1961 AND 1962, WERE SET FORTH IN SECTIONS 134.122A AND 134.22B OF THE POSTAL MANUAL. SECTION 134.122A PROVIDED, AS FOLLOWS:

"A. OTHER THAN AUTHORIZED NONPROFIT ORGANIZATIONS AND ASSOCIATIONS: 16 CENTS EACH POUND OR FRACTION OF A POUND; 2 1/2 CENTS MINIMUM CHARGE PER PIECE.'

SECTION 134.22B PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"B. THE BULK RATE IS APPLIED TO MAILINGS OF SEPARATELY ADDRESSED IDENTICAL PIECES IN QUANTITIES OF NOT LESS THAN 20 POUNDS, OR OF NOT LESS THAN 200 PIECES. * * * POSTAGE IS COMPUTED AT POUND RATES ON THE ENTIRE BULK MAILED AT ONE TIME, EXCEPT THAT IN NO CASE SHALL LESS THAN THE MINIMUM CHARGE PER PIECE BE PAID. * * *"

MR. MARKS, IN HIS LETTER OF OCTOBER 13, 1964, STATES THAT MISS PARSLEY WAS NOT FAMILIAR WITH THE ABOVE-QUOTED PROVISIONS OF THE POSTAL MANUAL.

THE RECORD SHOWS THAT THE MAILER HAS REFUSED TO PAY THE SHORTAGE OF $3,927.09 ON THE BASIS THAT AFTER HE INCREASED HIS MAILINGS THE POSTMASTER INFORMED HIM THAT HE WAS ENTITLED TO THE LOWER POUND RATE, AND RELYING ON THAT INFORMATION HE LOWERED HIS ADVERTISING RATES. ALSO, WHEN THE CORRECT POSTAGE RATE WAS APPLIED IN DECEMBER 1962 HE WAS UNABLE TO REVERT IMMEDIATELY TO HIS PRE MAY 1961 ADVERTISING RATES WHICH CAUSED HIM SOME HARDSHIP.

IT IS STATED IN MR. MARKS' LETTER THAT IT IS NOT FELT THAT MISS PARSLEY SHOULD BE CHARGED WITH NEGLIGENCE TO THE EXTENT THAT SHE SHOULD BE HELD FINANCIALLY LIABLE FOR THE SHORTAGE. ALSO, IT IS MR. MARKS' OPINION THAT SINCE THERE WAS NO MISAPPROPRIATION OF FUNDS OR ANY WRONG-DOING ON THE PART OF MISS PARSLEY, SHE SHOULD BE ALLOWED CREDIT OF $3,927.09 IN THE SETTLEMENT OF HER ACCOUNT.

IT IS DIFFICULT TO UNDERSTAND HOW A POSTMASTER SUCH AS MISS PARSLEY WHO HAS HAD YEARS OF EXPERIENCE AND WHO HAD APPARENTLY HANDLED THIRD CLASS BULK MAILINGS BEFORE IN A SATISFACTORY MANNER WOULD NOT BE FAMILIAR WITH THE ABOVE-QUOTED POSTAL REGULATIONS. IT WAS THE RESPONSIBILITY OF MISS PARSLEY, IN ACCORDANCE WITH 39 U.S.C. 2209 (A) (1), TO COLLECT THE PROPER AMOUNT OF POSTAGE. IT IS OUR VIEW THAT IF MISS PARSLEY HAD EXERCISED THE DEGREE WHICH REASONABLY IS TO BE EXPECTED OF ONE IN HER POSITION, THE SHORTAGE WOULD NOT HAVE OCCURRED. THEREFORE, WE ARE UNABLE TO AGREE THAT MISS PARSLEY SHOULD BE ALLOWED CREDIT OF $3,927.09 IN THE SETTLEMENT OF HER ACCOUNT. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD THE CHARGE ON THE POSTMASTER'S ACCOUNT WILL BE CONTINUED.