B-206820 L/M, SEP 9, 1982, OFFICE OF GENERAL COUNSEL

B-206820 L/M, SEP 9, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. ROGER B. FELDMAN, COMPTROLLER, DEPARTMENT OF STATE:

THIS IS IN RESPONSE TO YOUR REQUEST THAT WE RELIEVE MR. BERNARD R. MCGETTIGAN, A DRIVER-MESSENGER EMPLOYEE AT THE AMERICAN EMBASSY IN WELLINGTON, NEW ZEALAND, FROM LIABILITY FOR MISSING FUNDS IN THE AMOUNT OF $1,160.73. BASED ON THE REASONS GIVEN BELOW, WE DENY THE RELIEF.

ON NOVEMBER 20, 1980, MR. MCGETTIGAN RECEIVED FUNDS IN THE AMOUNT OF $2,023.51 FROM CASHIER MS. DEBRA M. LANGTON, TO PAY EMBASSY BILLS. MS. LANGTON HAD ALSO GIVEN FUNDS TO MR. JEFFREY J. AUSTIN, GENERAL SERVICES ASSISTANT, FOR A SIMILAR PURPOSE. MR. MCGETTIGAN PAID SOME BILLS ON FRIDAY, NOVEMBER 21, 1980. ACCORDING TO HIS STATEMENT, MR. MCGETTIGAN TURNED OVER THE BALANCE OF THE MONEY TO HIS CO-WORKER MR. AUSTIN, SOMETIME DURING THE MORNING OF NOVEMBER 21, ASKING HIM TO PAY PETTY CASH BILLS FOR HIM. MR. MCGETTIGAN DID NOT COUNT THE MONEY AT THE TIME HE GAVE IT TO MR. AUSTIN, NOR DID HE GET A RECEIPT FROM MR. AUSTIN.

FRO THE REMAINDER OF THAT FRIDAY, MR. AUSTIN CONTINUED TO PAY VARIOUS EMBASSY BILLS. HE THEN RETURNED THE RESIDUE OF THE FUNDS ENTRUSTED TO HIM TO MS. LANGTON. ACCORDING TO HIS STATEMENT, HE THEN PLACED THE UNSPENT AMOUNT OF MR. MCGETTIGAN'S FUNDS, CONTAINED IN A BLACK BRIEF CASE, INTO A BAR-LOCKING CABINET IN THE GENERAL SERVICES OFFICE OF THE EMBASSY. ACCORDING TO MR. AUSTIN, HE INFORMED MR. MCGETTIGAN OF THE WHEREABOUTS OF THE BLACK BRIEF CASE ON FRIDAY AFTERNOON. MR. MCGETTIGAN TOLD HIM THAT HE WOULD RETRIEVE THE FUNDS ON MONDAY MORNING.

ON MONDAY MORNING, NOVEMBER 24, 1980, MR. MCGETTIGAN DISCOVERED THAT THE FUNDS HE HAD GIVEN MR. AUSTIN WERE NOT IN THE LOCKED CABINET. DUE TO A MISUNDERSTANDING, HOWEVER, FOR THE FOLLOWING WEEK (UNTIL DECEMBER 2, 1980), HE AND THE OTHER EMPLOYEES OF THE OFFICE BELIEVED THAT MS. LANGTON, WHO WAS ON SICK LEAVE, HAD THE MONEY WITH HER AT HER HOME. IT WAS NOT UNTIL SHE RETURNED TO WORK ON DECEMBER 2, 1980, THAT MR. MCGETTIGAN AND THE OTHER EMPLOYEES REALIZED THAT SHE DID NOT HAVE THE FUNDS IN HER POSSESSION, AND THAT THEY WERE, IN FACT, MISSING.

DESPITE AN INVESTIGATION CONDUCTED BY THE DEPUTY POST SECURITY OFFICER, THERE HAS BEEN NO DETERMINATION AS TO PRECISELY WHEN AND HOW THE FUNDS DISAPPEARED. NO WRITTEN RECORD EXISTS OF WHO WAS IN THE OFFICE OVER THE WEEKEND OF NOVEMBER 21 THROUGH NOVEMBER 24, 1980. THERE IS NO EVIDENCE OF FORCED ENTRY INTO THE SAFE.

YOU HAVE REQUESTED RELIEF FOR MR. MCGETTIGAN UNDER 31 U.S.C. SEC. 82A-1, WHICH AUTHORIZES THIS OFFICE TO RELIEVE AN ACCOUNTABLE OFFICER OF LIABILITY FOR A PHYSICAL LOSS IF WE AGREE WITH THE DETERMINATION BY THE AGENCY:

"(1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, *** AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. ***"

BOTH YOU AND THE STATE DEPARTMENT'S COMMITTEE OF INQUIRY INTO FISCAL IRREGULARITIES RECOMMEND THAT RELIEF BE GRANTED BECAUSE THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MR. MCGETTIGAN. WE CANNOT AGREE WITH YOUR DETERMINATION.

A GOVERNMENT EMPLOYEE CHARGED WITH THE CUSTODY OR HANDLING OF PUBLIC FUNDS IS EXPECTED TO EXERCISE THE HIGHEST DEGREE OF CARE, 48 COMP.GEN. 566, 567 (1969), THAT WHICH A REASONABLY PRUDENT PERSON WOULD EXERCISE WITH HIS OWN PROPERTY. THE BURDEN OF PROVING THAT SUCH CARE WAS EXERCISED IS ON THE ACCOUNTABLE OFFICER. 54 COMP.GEN. 112, 115 (1974).

AN UNEXPLAINED LOSS OF GOVERNMENT FUNDS, SUCH AS OCCURRED HERE, RAISES A PRESUMPTION OF NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER RESPONSIBLE FOR THE MISSING FUNDS. SEE B-186127, SEPTEMBER 1, 1976; 54 COMP.GEN. 112 (1974); B-170012, AUGUST 11, 1970. WHERE A LOSS HAS TAKEN PLACE WITHOUT EVIDENCE OF BURGLARY OR ANY OTHER BASIS FOR THE DISAPPEARANCE, THE BURDEN RESTS WITH THE ACCOUNTABLE OFFICER TO PRODUCE AFFIRMATIVE EVIDENCE THAT HE EXERCISED THE REQUISITE DEGREE OF CARE IN HIS HANDLING OF THE FUNDS. B-167126, AUGUST 9, 1976; 48 COMP.GEN. 566 (1969).

MR. MCGETTIGAN HAS NOT MET THIS BURDEN OF PROOF. ACCORDING TO THE FACTS AS PRESENTED, MR. MCGETTIGAN GAVE THE FUNDS FOR WHICH HE WAS ACCOUNTABLE TO MR. AUSTIN. HE FAILED TO COUNT OUT THE AMOUNT NOR DID HE ASK MR. AUSTIN TO SIGN A RECEIPT FOR THE FUNDS. WE DO NOT BELIEVE HE EFFECTIVELY TRANSFERRED CUSTODY AND ACCOUNTABILITY OF THE FUNDS. HE HAD ORIGINALLY SIGNED FOR THEM; WE HAVE NO EVIDENCE THAT HE WAS AUTHORIZED TO HAND OVER THE FUNDS FOR WHICH HE WAS ACCOUNTABLE TO MR. AUSTIN. CF. B-192276, AUGUST 14, 1978 (RELIEF GRANTED FOR PHYSICAL LOSS WHERE OFFICER HAD BEEN GIVEN AUTHORITY TO TRANSMIT FUNDS TO ANOTHER EMPLOYEE AND TOOK PROPER STEPS IN HAVING THE EMPLOYEE ACKNOWLEDGE RECEIPT AND LIABILITY FOR THE FUNDS); SEE ALSO B-204908, MARCH 31, 1982.

FURTHER, AFTER LEARNING FROM MR. AUSTIN THAT THE MONEY WAS IN THE GENERAL SERVICES DIVISION BAR-LOCKING FILE CABINET, HE DID NOT SEEK THE FUNDS UNTIL MONDAY MORNING, ALLOWING THEM TO REMAIN OVER THE WEEKEND.

THERE WERE ALTERNATIVES TO SUCH CONDUCT THAT PROBABLY WOULD HAVE AVOIDED THE LOSS. THE BUDGET AND FISCAL DIVISION HAS A CASHIER'S SAFE IN WHICH THE MONEY COULD HAVE BEEN SECURED. MR. MCGETTIGAN COULD HAVE PLACED THE MONEY THERE, OR GIVEN IT TO DEBRA LANGTON HIMSELF. HIS NEGLECT DOES NOT COMPORT WITH THE REASONABLE CARE REQUIRED OF ACCOUNTABLE OFFICERS. THUS CONSIDER HIS ACTIONS TO BE THE PROXIMATE CAUSE OF THE LOSS. THEREFORE, WE DENY RELIEF TO MR. MCGETTIGAN.

FINALLY, WE NOTE WITH DISAPPROVAL THE INADEQUATE SECURITY CONDITIONS THAT EXIST IN THE WELLINGTON GENERAL SERVICES OFFICE, AS EVIDENCED BY THE ROUTINE STORAGE OF LARGE AMOUNTS OF CASH IN A LOCKED CABINET RATHER THAN IN A SAFE, AND THE LAX MANNER WITH WHICH THE EMPLOYEES HANDLE PETTY CASH. WE ALSO DETECT A MARKED LACK OF CONCERN ON THE PART OF THESE EMPLOYEES OVER THE LOSS OF PUBLIC FUNDS. THE CONFUSED DESCRIPTION BY THE OFFICE PERSONNEL OF EVENTS LEADING UP TO THE LOSS DEMONSTRATES A LACK OF ACCOUNTABILITY THAT SHOULD NOT CONTINUE. WE STRONGLY URGE THAT A BETTER SECURITY SYSTEM BE IMPLEMENTED AND THAT THE EMPLOYEES ADOPT A MORE RESPONSIBLE ATTITUDE WITH REGARD TO THE HANDLING OF PUBLIC MONIES.