B-210507 L/M, APR 4, 1983, OFFICE OF GENERAL COUNSEL

B-210507 L/M, APR 4, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

KEVIN D. ROONEY, DEPARTMENT OF JUSTICE:

THIS IS IN REPLY TO YOUR REQUEST THAT RELIEF BE GRANTED UNDER 31 U.S.C. SEC. 82A-1 (NOW 31 U.S.C. SEC. 3527(A)), TO WILLIAM N. ALDRIDGE, A SPECIAL AGENT OF THE DRUG ENFORCEMENT ADMINISTRATION, FROM LIABILITY FOR THE LOSS OF $2000 RESULTING FROM THE THEFT OF HIS BRIEFCASE. FOR THE REASONS GIVEN BELOW, WE GRANT RELIEF.

IN THIS CASE THE RECORD SHOWS THAT WHILE AWAITING A PLANE ON THE WAY TO MAKING A PAYMENT TO A CONFIDENTIAL INFORMANT, SPECIAL AGENT ALDRIDGE STOPPED IN A COFFEE SHOP AT THE CONGONAS AIRPORT, SAO PAULO, BRAZIL. THERE, HE PLACED HIS BRIEFCASE CONTAINING FUNDS TO PAY OFF AN INFORMANT ON THE FLOOR NEXT TO HIS RIGHT FOOT FOR A PERIOD OF 15-20 SECONDS SO THAT HE COULD REMOVE HIS JACKET. AS HE BENT DOWN TO PLACE HIS JACKET ON THE BRIEFCASE, SPECIAL AGENT ALDRIDGE DISCOVERED THAT THE BRIEFCASE WAS MISSING. THE LOCAL POLICE SEARCHED THE AIRPORT, BUT WERE UNABLE TO LOCATE THE THIEF. LATER, THE POLICE EXPLAINED THAT SEVERAL SIMILAR THEFTS RECENTLY HAD OCCURRED IN THE AIRPORT IN WHICH "AFFLUENT LOOKING" INDIVIDUALS WERE VICTIMIZED.

THE RECORD ALSO SHOWS THAT IT WAS NOT POSSIBLE FOR ANYONE TO HAVE KNOWN THAT SPECIAL AGENT ALDRIDGE HAD CURRENCY IN HIS BRIEFCASE. THE MONEY WAS IN A LARGE BROWN ENVELOPE WHICH WAS PLACED IN THE BACKFLAP OF THE BRIEFCASE SO THAT IT WAS NOT VISIBLE UPON OPENING THE BRIEFCASE.

SPECIFICALLY, YOU REQUEST THAT THIS OFFICE APPLY OUR DECISION IN 61 COMP.GEN. 313, B-204908, MARCH 31, 1982 TO THE FACTS OF THIS CASE. OUR DECISION IN 61 COMP.GEN. 313, ID., PROVIDED THAT THE DRUG ENFORCEMENT ADMINISTRATION IS NOT REQUIRED TO SEEK RELIEF UNDER 31 U.S.C. SEC. 3527 FOR SPECIAL AGENTS WHO LOSE FUNDS ADVANCED TO PURCHASE CONTROLLED SUBSTANCES WHERE THE LOSS RESULTS FROM A CALCULATED RISK OF THE DRUG ENFORCEMENT OPERATION. UNDER THESE CIRCUMSTANCES THE FUNDS SHOULD BE RECORDED AS A NECESSARY INVESTIGATIVE EXPENSE OF THE AGENCY AND THUS CLEAR THE ACCOUNT. SINCE THERE IS NO LOSS UNDER THIS ANALYSIS, WE DO NOT TECHNICALLY GRANT RELIEF UNDER 31 U.S.C. SEC. 3527 IN SUCH CIRCUMSTANCES. HOWEVER, AN AGENCY MUST STILL SEEK RELIEF UNDER 31 U.S.C. SEC. 3527, SUPRA, WHERE AN OFFICER OR EMPLOYEE LOSES FUNDS UNDER CIRCUMSTANCES WHICH ARE UNRELATED TO CARRYING OUT THE PURPOSES FOR WHICH THE FUNDS WERE ENTRUSTED. ACCORDINGLY, WE CANNOT GRANT RELIEF TO SPECIAL AGENT ALDRIDGE UNDER THE RATIONALE OF 61 COMP.GEN. 313, ID., BECAUSE THE LOSS OCCURRED UNDER CIRCUMSTANCES UNRELATED TO THE CARRYING OUT OF THE DRUG ENFORCEMENT OPERATION. UNDER THE FACTS AS PRESENTED, THE THEFT OCCURRED DURING TRANSPORTATION OF THE MONEY WHICH WAS AT MOST ONLY INCIDENTAL TO THE PAYMENT OF THE INFORMANT.

THIS OFFICE IS AUTHORIZED UNDER 31 U.S.C. SEC. 3527 TO RELIEVE AN ACCOUNTABLE OFFICER OR AGENT OF LIABILITY ON ACCOUNT OF A PHYSICAL LOSS OF GOVERNMENT FUNDS IF IT CONCURS IN THE DETERMINATIONS BY THE HEAD OF THE OFFICER'S AGENCY THAT THE LOSS OCCURRED WHILE THE OFFICER WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, AND WITHOUT FAULT OR NEGLIGENCE. GENERAL, ANY GOVERNMENT OFFICER OR EMPLOYEE WHO BY REASON OF HIS OR HER EMPLOYMENT IS RESPONSIBLE FOR OR HAS CUSTODY OF GOVERNMENT FUNDS IS AN ACCOUNTABLE OFFICER. 59 COMP.GEN. 113, 114 (1979). WE CONSISTENTLY HAVE TREATED LAW ENFORCEMENT PERSONNEL WITH CUSTODY OF GOVERNMENT FUNDS AS ACCOUNTABLE OFFICERS. SEE B-192010, AUGUST 14, 1978 AND B-191891, JUNE 16, 1980.

ON THE BASIS OF THE FACTS PRESENTED, YOU HAVE DETERMINED THAT THE LOSS OCCURRED WHILE SPECIAL AGENT ALDRIDGE WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES AND WITHOUT FAULT OR NEGLIGENCE ON HIS PART. THIS DETERMINATION IS SUPPORTED BY THE FINDINGS OF A BOARD OF INVESTIGATION, WHICH AMONG ITS FINDINGS CONCLUDED THAT:

"THE LOSS DID NOT RESULT FROM NEGLIGENCE ON THE PART OF THE EMPLOYEE BUT RATHER FROM A SKILLFUL CRIMINAL UTILIZING THE ELEMENT OF SURPRISE."

WE CONCUR IN YOUR DETERMINATION. NOTHING IN THE RECORD SUGGESTS THAT THE THEFT DID NOT OCCUR AS REPORTED.

ACCORDINGLY, WE GRANT RELIEF TO SPECIAL AGENT ALDRIDGE IN THE AMOUNT OF $2000. A CHARGE MAY BE MADE TO THE PROPER APPROPRIATION.