B-163279, APR 8, 1971

B-163279, APR 8, 1971

LOSS OF GOVERNMENT PROPERTY - POSTMASTER'S LIABILITY AFFIRMING DECISION OF THE CIVIL DIVISION DENYING RELIEF OF A DEFICIENCY IN THE ACCOUNT OF HERBERT IMPROTE, POSTMASTER, CENTER EACH, NEW YORK, RESULTING FROM THE BURGLARY OF $33,939.40 IN POSTAL FUNDS AND STAMPS. THE PLACING IN A NEARBY SAFE THE WRITTEN COMBINATION FOR A BURGLAR RESISTANT CHEST AND THE FAILURE TO USE BURGLAR-RESISTANT CHESTS TO MAXIMUM ADVANTAGE CONSTITUTE NEGLIGENCE IN SAFE-GUARDING POST OFFICE PROPERTY AS OUTLINED IN POSTAL BULLETIN NO. 20672 (NOVEMBER 14, 1968) AND POSTAL MANUAL SECTIONS 421.51 AND 442.221. THEREFORE THE DECISION OF THE CIVIL DIVISION IS AFFIRMED AND THE POSTMASTER MAY BE CREDITED ONLY FOR LOSSES NOT CAUSED BY HIS NEGLIGENCE IN SAFEGUARDING THE PROPERTY.

TO THE POSTMASTER GENERAL:

WE HAVE RECEIVED A LETTER DATED DECEMBER 8, 1970, FROM MR. CLINTON I. NEWMAN, ASSISTANT GENERAL COUNSEL OF YOUR CLAIMS DIVISION, REQUESTING RECONSIDERATION OF THE LETTER OF SEPTEMBER 10, 1970, FROM OUR CIVIL DIVISION PARTIALLY DENYING RELIEF OF A DEFICIENCY IN THE ACCOUNT OF HERBERT IMPROTE, POSTMASTER, CENTER EACH, NEW YORK.

THE DEFICIENCY WAS THE RESULT OF A BURGLARY OF THE CENTER EACH POST OFFICE WHICH WAS INVESTIGATED BY POSTAL INSPECTORS W. H. CAUNTER, JR., AND F. L. UNDERWOOD AND REPORTED BY THEM IN CASE NO. 06871B, PRELIMINARY, AUGUST 14, 1969. THE BURGLARY OCCURRED BETWEEN 5:30 P.M. ON SATURDAY, AUGUST 2, AND 3:55 A.M. ON SUNDAY, AUGUST 3, WHEN IT WAS DISCOVERED. THE TOTAL VALUE OF THE LOSSES TO THE ACCOUNT WAS $33,939.40 IN POSTAL FUNDS AND STOCK OF POSTAL STAMPS.

THE BURGLARS ENTERED THE POST OFFICE BY FORCING OPEN THE LOCK ON THE SECURITY CHAIN ON THE BACK DOOR OF THE POST OFFICE; THEN THEY APPARENTLY FORCED OPEN THE DOOR OF THE POSTMASTER'S OFFICE IN ORDER TO SEARCH FOR A RECORD OF THE COMBINATION TO THE THREE SAFES WHICH HELD THE VALUABLES OF THE POST OFFICE. THEY UPSET SEVERAL ITEMS IN THE OFFICE, AND THEN ATTACKED THE SAFES.

TWO OF THE THREE SAFES WERE OPENED BY THE "PRY-AND-PEEL" METHOD. THERE WAS NO EVIDENCE THAT CASH, STAMP STOCK, OR FIXED CREDITS WERE KEPT IN IMPROPER AMOUNTS. BUT THE REPORT DID STATE THAT BOTH SAFES WERE EQUIPPED WITH BURGLAR-RESISTANT CHESTS WHICH WERE NOT USED TO MAXIMUM ADVANTAGE. THE REPORT DID NOT INDICATE HOW MUCH MORE OF THE TOTAL STAMP STOCK SHOULD HAVE REASONABLY BEEN PLACED IN THE BURGLAR RESISTANT CHESTS.

FOUR FIXED CREDIT DRAWERS, PROPERLY LOCKED IN SAFE ITEM NO. 275, WERE FORCED OPEN; TWO LOCKED COMPARTMENTS IN THE SAFE WERE ALSO FORCED OPEN. BUT A BURGLAR-RESISTANT CHEST IN SAFE ITEM NO. 275 CONTAINING 2,500 DOMESTIC MONEY ORDERS, A RING OF MISCELLANEOUS KEYS, AND POSTAL RECEIPTS IN THE AMOUNT OF $1,320.08 IN CASH WAS NOT OPENED. SAFE ITEM NO. 281 CONTAINED THE MAIN STAMP STOCK. THE BURGLAR-RESISTANT CHEST IN SAFE ITEM NO. 281 WAS OPENED AND BULK QUANTITIES OF POSTAGE STAMPS WERE REMOVED FROM IT. THIS BURGLAR-RESISTANT CHEST WAS APPARENTLY OPENED WITHOUT THE USE OF FORCE.

IN AN INTERVIEW BY THE POSTAL INSPECTORS SOON AFTER THE BURGLARY, THE POSTMASTER WAS UNCERTAIN WHETHER HE LOCKED THE BURGLAR-RESISTANT CHEST IN SAFE ITEM NO. 281 BEFORE HE LEFT THE OFFICE ON FRIDAY. THE POSTMASTER LATER RECALLED THAT AT THE TIME OF THE BURGLARY HE HAD BEEN IN CHARGE OF THE MAIN STAMP STOCK FOR A 2-WEEK PERIOD WHILE THE ASSISTANT POSTMASTER WAS ON ANNUAL LEAVE. THE POSTMASTER WAS NOT FAMILIAR WITH THE COMBINATION TO THE BURGLAR-RESISTANT CHEST OF SAFE ITEM NO. 281, SO IT WAS RECORDED ON PAPER, SEALED IN A MARKED ENVELOPE, AND PLACED IN A LOCKED COMPARTMENT IN SAFE ITEM NO. 275. THE BURGLARS APPARENTLY REMOVED THIS ENVELOPE FROM THE SAFE. THE POSTMASTER LATER ASSERTED IN A WRITTEN STATEMENT THAT THIS COMBINATION WAS THE MEANS USED BY THE BURGLARS TO OPEN THE BURGLAR- RESISTANT CHEST IN SAFE ITEM NO. 281.

THE POSTAL INSPECTORS RECOMMENDED THAT THE POSTMASTER SHOULD RECEIVE A CREDIT OF $2,192.15 FOR THE LOSSES FROM THE FIXED CREDIT DRAWERS OF SAFE ITEM NO. 275 BECAUSE IT WAS PROPERLY LOCKED AND PROTECTED. BUT THE POSTAL INSPECTORS ALSO NOTED THAT THE BURGLAR-RESISTANT CHEST IN SAFE ITEM NO. 281 WAS OPENED WITHOUT FORCE AND THAT THE BURGLAR RESISTANT CHESTS WERE NOT USED TO MAXIMUM ADVANTAGE. THESE FACTS LED THE INSPECTORS TO THE CONCLUSION THAT ALL THE POST OFFICE PROPERTY HAD NOT BEEN PROPERLY SAFEGUARDED AND THAT CREDIT TO THE POSTMASTER FOR THE ENTIRE AMOUNT LOST IN THE BURGLARY WOULD NOT BE APPROPRIATE.

THE POST OFFICE DEPARTMENT CONCLUDED THAT THESE ACTIONS HAD NO BEARING ON THE LOSS AND THAT THE POSTMASTER ACTED WITHOUT FAULT OR NEGLIGENCE AND MADE A REASONABLE EFFORT TO PROPERLY SAFEGUARD POSTAL FUNDS AND STAMP STOCK. IT THEN SUBMITTED TO THE GENERAL ACCOUNTING OFFICE A REQUEST FOR CONCURRENCE IN ITS DETERMINATION OF RELIEF OF ACCOUNTABILITY UNDER THE PROVISIONS OF 31 U.S.C. 82A-1. OUR CIVIL DIVISION DENIED RELIEF, OTHER THAN FOR THE FIXED CREDITS, IN A LETTER OF SEPTEMBER 10, 1970, TO THE ASSISTANT CONTROLLER FOR ACCOUNTING, POST OFFICE DEPARTMENT.

THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE FOR RELIEVING ACCOUNTABLE OFFICERS FROM LIABILITY FOR PHYSICAL LOSSES OF GOVERNMENT FUNDS, VOUCHERS, ETC., IS CONTAINED IN THE PROVISIONS OF 31 U.S.C. 82A 1. THE STATUTE DECLARES THAT THE GENERAL ACCOUNTING OFFICE MAY AUTHORIZE RELIEF OF LIABILITY FOR LOSSES IF IT CONCURS WITH AN ADMINISTRATIVE FINDING THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE OFFICER.

THE POSTAL MANUAL ESTABLISHES THE RESPONSIBILITY OF THE POSTMASTER IN LOSSES OF POST OFFICE PROPERTY AS FOLLOWS:

"POSTMASTERS ARE PRIMARILY RESPONSIBLE FOR ASSURING COMPLIANCE WITH REQUIREMENTS FOR CONTROL OVER EXPENDITURES, SAFEGUARDING OF ASSETS, AND PROPER RECORDING AND REPORTING OF FINANCIAL DATA. *** " (POSTAL MANUAL 413.1)

THE POSTAL MANUAL ALSO PROVIDES THE FOLLOWING MORE EXPLICIT INSTRUCTIONS IN EFFECT AT THE TIME OF THE ROBBERY CONCERNING THE PROTECTION OF FUNDS AND ACCOUNTABLE PAPER.

"421.5 PROTECTION

".51 STAMPS. GIVE POSTAGE STAMPS AND NONPOSTAL STAMPS THE BEST POSSIBLE PROTECTION. KEEP HIGHER DENOMINATIONS IN THE SAFEST PLACE IF STORAGE FACILITIES OFFER DIFFERENT DEGREES OF SECURITY. USE BURGLAR RESISTANT INNER COMPARTMENTS IN SAFES SO FAR AS PRACTICABLE. *** " "442.22 AT NIGHT AND WHEN OFFICE CLOSED

".221 OFFICE WITH SAFE OR VAULT. LOCK FUNDS IN SAFES OR VAULTS WITH FULL COMBINATION ON OUTER DOORS AND BURGLAR-RESISTANT CHESTS. PUT MONEY AND ACCOUNTABLE PAPER HAVING THE GREATEST INTRINSIC VALUE IN THE BURGLAR- RESISTANT CHEST TO CAPACITY."

AN INSTRUCTION IN POSTAL BULLETIN NO. 20672 (NOVEMBER 14, 1968, PAGE 3), ISSUED ONLY 8 MONTHS BEFORE THE CENTER EACH BURGLARY, GAVE SPECIFIC DIRECTIONS CONCERNING THE POSTMASTER'S DUTY TO SAFEGUARD POST OFFICE PROPERTY AGAINST BURGLARY. IT WAS DIRECTED TO ALL POST OFFICES AND INCLUDED THE FOLLOWING LANGUAGE:

"WRITTEN SAFE COMBINATIONS MUST BE GIVEN PROPER PROTECTION AND SHOULD NOT BE FILED IN DRAWERS, CABINETS OR OTHER PLACES WHERE THEY CAN BE FOUND BY A BURGLAR.

" *** USE BURGLAR-RESISTANT INNER COMPARTMENTS IN SAFES, SO FAR AS PRACTICABLE, IN STORING THE MAIN STOCK. SEE SECTION 421.5 POSTAL MANUAL. THESE INNER CHESTS SHOULD BE FILLED TO CAPACITY. THE COMBINATIONS THERETO MUST NOT BE WRITTEN ON THE INSIDE WALL OF THE SAFE. POSTAL FUNDS AND STAMPS MUST RECEIVE THE HIGHEST DEGREE OF PROTECTION.

"WHEN A LOSS OF FUNDS AND STAMP STOCK OCCURS BECAUSE THE BURGLAR RESISTANT CHEST OF THE SAFE WAS NOT FILLED TO CAPACITY, THE DOOR OF THE SAFE HAD NOT BEEN LOCKED PROPERLY, OR OTHER PROTECTIVE MEASURES WERE NOT TAKEN, THE POSTMASTER AND/OR PERSON RESPONSIBLE FOR THE SAFEKEEPING OF THE FUNDS AND ACCOUNTABLE PAPER ARE LIABLE FOR THE LOSS." BUREAU OF FINANCE AND ADMINISTRATION, NOVEMBER 14, 1968.

THIS OFFICE HAS BEEN ASKED TO RECONSIDER WHETHER PLACING IN A NEARBY SAFE THE WRITTEN COMBINATION FOR A BURGLAR-RESISTANT CHEST AND THE FAILURE TO USE BURGLAR-RESISTANT CHESTS TO MAXIMUM ADVANTAGE CONSTITUTE NEGLIGENCE IN SAFEGUARDING POST OFFICE PROPERTY.

POSTAL BULLETIN NO. 20672, QUOTED ABOVE, STATES THAT WRITTEN COMBINATIONS SHOULD BE GIVEN "PROPER PROTECTION" AND THAT THEY SHOULD NOT BE FILED IN "PLACES WHERE THEY CAN BE FOUND BY A BURGLAR." (SEE CURRENT POSTAL MANUAL REGULATION NO. 413.42.)

THE PURPOSE OF BURGLAR-RESISTANT CHESTS IS TO INCREASE THE DEGREE OF SECURITY PROVIDED BY THE SAFE. ACCESSIBILITY TO THE WRITTEN COMBINATION OF THESE CHESTS ELIMINATES THE EXTRA SECURITY WHICH THE CHESTS ARE MEANT TO PROVIDE. IT IS REASONABLE FOR A RESPONSIBLE PERSON TO ASSUME THAT A BURGLAR MIGHT FORCE HIS WAY THROUGH THE OUTSIDE DOOR OF A SAFE AND DISCOVER THAT, BY PERFORMING THE SAME OPERATION ON A NEARBY SAFE, HE WILL AVOID FURTHER DIFFICULTIES IN NEGOTIATING A BURGLAR-RESISTANT CHEST. THIS REASONING IS SUPPORTED BY THE FACT THAT IN THE PRESENT CASE THE BURGLARS FORCED OPEN TWO SAFES, BUT THEY ENTERED THE BURGLAR-RESISTANT CHEST ONLY FOR WHICH THE WRITTEN COMBINATION WAS AVAILABLE. THEREFORE, THE ACT OF PLACING IN A NEARBY SAFE THE WRITTEN COMBINATION FOR A BURGLAR-RESISTANT CHEST WAS NOT IN REASONABLE COMPLIANCE WITH THE REGULATIONS OF THE POSTAL BULLETIN CALLING FOR PROPER PROTECTION OF COMBINATIONS. THE FACT THAT THIS FAILURE TO OBSERVE THE REGULATIONS WAS THE PROXIMATE CAUSE OF THE LOSS IN THE BURGLARY MAKES THE POSTMASTER LIABLE FOR THAT AMOUNT OF THE LOSS.

THIS CONCLUSION IS SUPPORTED BY LANGUAGE OF THE POSTAL BULLETIN QUOTED ABOVE WHICH SPECIFICALLY PROHIBITS WRITING THE COMBINATION OF A BURGLAR- RESISTANT CHEST ON THE INSIDE WALL OF THE SAFE, AN ACTION WHICH IS ANALOGOUS TO PLACING THE COMBINATION IN A NEARBY SAFE BECAUSE IT ELIMINATES THE EXTRA MEASURE OF SECURITY WHICH THE BURGLAR-RESISTANT CHEST PROVIDES.

THE SECOND QUESTION CONCERNS THE LIABILITY OF THE POSTMASTER FOR FAILING TO USE THE BURGLAR-RESISTANT CHESTS TO THE MAXIMUM ADVANTAGE. THIS ACTION WAS A CLEAR VIOLATION OF SECTIONS 421.51 AND 442.221 OF THE POSTAL MANUAL, QUOTED ABOVE, WHICH REQUIRE THAT BURGLAR-RESISTANT CHESTS BE USED FOR CASH AND STAMPS TO MAXIMUM CAPACITY. THESE REGULATIONS ARE ALSO SUPPORTED BY POSTAL BULLETIN NO. 20672 WHICH REPEATS THE SAME LANGUAGE.

THE POSTAL INSPECTORS' REPORT ON THE BURGLARY STATED THAT ONE OF THE REASONS WHY CREDIT TO THE POSTMASTER WAS INAPPROPRIATE WAS THAT THE BURGLAR-RESISTANT CHESTS WERE NOT USED TO THE MAXIMUM ADVANTAGE. THE REPORT DID NOT GIVE MORE DETAILS, BUT THE STATEMENT IMPLIES THAT THE LOSSES WOULD HAVE BEEN LESSENED IF AS MUCH OF THE STAMP STOCK AS POSSIBLE HAD BEEN DISTRIBUTED AMONG THE THREE CHESTS OF THE THREE SAFES.

THEREFORE, THE LETTER OF SEPTEMBER 10, 1970, FROM OUR CIVIL DIVISION DIRECTED THAT THE POST OFFICE DEPARTMENT SHOULD DETERMINE IN WHAT AMOUNTS THIS DISTRIBUTION SHOULD HAVE BEEN MADE AND SHOULD CREDIT THE POSTMASTER ONLY FOR THOSE AMOUNTS OF STAMP STOCK LOST WHICH COULD NOT HAVE BEEN MORE CAREFULLY PROTECTED BY PROPER USE OF THE BURGLAR RESISTANT CHESTS. THIS WAS A REASONABLE DETERMINATION OF LIABILITY BASED UPON A VIOLATION OF AN EXPLICIT REGULATION.

WE ALSO NOTE THAT EACH NEGLIGENT ACT WAS INDEPENDENTLY THE PROXIMATE CAUSE OF LOSSES. IF THE ONLY VIOLATION HAD BEEN TO PLACE IN SAFE ITEM NO. 275 THE WRITTEN COMBINATION FOR THE BURGLAR-RESISTANT CHEST OF SAFE ITEM NO. 281, THERE WOULD HAVE BEEN LOSSES FROM THE LATTER LOCATION FOR WHICH THE POSTMASTER WOULD BE LIABLE. ON THE OTHER HAND, IF THE ONLY VIOLATION HAD BEEN THE FAILURE TO USE THE BURGLAR-RESISTANT CHESTS TO MAXIMUM ADVANTAGE, THERE WOULD HAVE BEEN LOSSES FROM UNNECESSARILY EXPOSED STAMP STOCK FOR WHICH THE POSTMASTER WOULD HAVE BEEN LIABLE.

THE POST OFFICE DEPARTMENT HAS URGED CONCURRENCE WITH ITS DETERMINATION THAT RELIEF SHOULD BE GRANTED. IT OBJECTS TO THE INTERPRETATION OF SECTION 413.42 OF THE POSTAL MANUAL, WHICH HAS NOT BEEN REFERRED TO IN THIS DECISION BECAUSE IT WAS NOT INCORPORATED INTO THE POSTAL MANUAL UNTIL AFTER THE CENTER EACH BURGLARY OCCURRED. THE POST OFFICE DEPARTMENT ALSO OBJECTS TO THE INTERPRETATION OF POSTAL BULLETIN NO. 20672 (NOVEMBER 14, 1968), ISSUED 8 MONTHS BEFORE THE CENTER EACH BURGLARY AND LATER INCORPORATED INTO NEW SECTION 413.4 OF THE POSTAL MANUAL (T.L. 91, ISSUE 1242, JANUARY 23, 1970), WHICH GIVES DIRECTIONS ABOUT PROTECTING SAFE COMBINATIONS. THE POST OFFICE DEPARTMENT ASSERTS THAT OUR CIVIL DIVISION'S LETTER OF SEPTEMBER 10, 1970, INTERPRETED THE POSTAL BULLETIN TO MEAN THAT A COMBINATION MAY NOT BE WRITTEN ANYWHERE. THAT LETTER ONLY CONCLUDED THAT THE POSTMASTER DID NOT EXERCISE REASONABLE CARE IN SAFEGUARDING THE COMBINATION IN A NEARBY SAFE AND THAT THIS NEGLIGENCE DEFEATED THE SECURITY OF THE BURGLAR-RESISTANT CHEST ALMOST AS SURELY AS WRITING THE COMBINATION ON THE WALL OF THE SAFE WHICH HOLDS THE BURGLAR- RESISTANT CHEST.

THE POST OFFICE DEPARTMENT ALSO CONTENDS THAT THE FAILURE TO USE THE BURGLAR-RESISTANT CHESTS TO MAXIMUM ADVANTAGE IS NOT RELATED TO THE LOSS. WE HAVE NOTED ABOVE THAT EACH ACT OF NEGLIGENCE WAS INDEPENDENTLY THE PROXIMATE CAUSE OF LOSSES. EVEN IF WE HAD NOT RULED THAT THE POSTMASTER WAS NEGLIGENT IN PLACING THE COMBINATION TO THE CHEST IN A NEARBY SAFE, THE FAILURE TO USE THE BURGLAR-RESISTANT CHESTS TO MAXIMUM ADVANTAGE WOULD STILL HAVE BEEN THE CAUSE OF UNNECESSARY LOSSES.

THE POST OFFICE DEPARTMENT ALSO NOTES THAT THE DEPARTMENT CONSTANTLY EMPHASIZES THAT POSTMASTERS SHOULD MAINTAIN THEIR MAIN STOCK SEPARATE FROM FIXED CREDITS. ALTHOUGH THE LETTER REFERS TO NO REGULATION REQUIRING SEPARATION NOR HAVE WE DISCOVERED SUCH A REGULATION, IT APPEARS THAT SEPARATION OF STAMP STOCK AND FIXED CREDITS WAS ACCOMPLISHED IN THE CENTER EACH POST OFFICE BY USE OF THE FIXED CREDIT DRAWERS OF SAFE ITEM NO. 275, WHICH WERE INDIVIDUALLY ASSIGNED FOR THE EXCLUSIVE USE OF EACH POSTAL CLERK. USE OF THE BURGLAR-RESISTANT CHEST OF THAT SAFE FOR STORAGE OF STAMP STOCK WOULD NOT HAVE VIOLATED THIS DIRECTIVE AND WOULD HAVE PROVIDED GREATER SECURITY. THEREFORE, WE AFFIRM THE LETTER OF SEPTEMBER 10, 1970. THE POSTMASTER MAY BE CREDITED ONLY FOR THOSE LOSSES NOT CAUSED BY HIS NEGLIGENCE IN SAFEGUARDING THE PROPERTY. THE POST OFFICE DEPARTMENT SHOULD DETERMINE HOW MUCH THE LOSSES COULD HAVE BEEN REDUCED BY USING THE BURGLAR RESISTANT CHESTS TO MAXIMUM ADVANTAGE, AND POSTMASTER IMPROTE MUST BE HELD LIABLE FOR THAT AMOUNT.