B-155160, JUL. 28, 1967

B-155160, JUL. 28, 1967

POSTAL SERVICE - FUND LOSSES - EMBEZZLEMENT DECISION TO FORMER SUBSTITUTE CARRIER IN CONNECTION WITH INDEBTEDNESS RESULTING FROM EMBEZZLEMENT OF FUNDS REAFFIRMING DECISION OF NOV. 9, 1964. DEBTOR ADVISED THAT CRIMINAL ASPECTS OF CASE DO NOT DISPOSE OF CIVIL LIABILITY AND IN ABSENCE OF ANY PRESENTATION THAT WOULD OVERCOME PRIMA FACIE CASE OF LIABILITY THERE IS NO AUTHORITY FOR WAIVER OF THE INDEBTEDNESS.

TO DEAR MR.:

WE REFER TO YOUR LETTER OF JUNE 9, 1967, CONCERNING YOUR CLAIM FOR REFUND OF $417.49, REPRESENTING MONEYS OTHERWISE DUE WHICH WERE APPLIED AGAINST AN INDEBTEDNESS ASSERTED AGAINST YOU IN CONNECTION WITH YOUR EMPLOYMENT AS A SUBSTITUTE CARRIER WITH THE UNITED STATES POST OFFICE. WE ALSO HAVE RECEIVED YOUR INQUIRY OF JULY 3, 1967, REGARDING THE MATTER.

YOUR CLAIM, WHICH INVOLVES THE ALLEGED EMBEZZLEMENT OF POSTAL FUNDS, WAS DISALLOWED BY OUR SETTLEMENT OF JULY 24, 1964, AND, AFTER A CAREFUL REVIEW OF THE RECORD AND APPLICABLE LAW, THE DISALLOWANCE WAS SUSTAINED BY OUR DECISION OF NOVEMBER 9, 1964, TO YOU.

THE MATTER IS DIVIDED INTO TWO PARTS, NAMELY, (1) THE EMBEZZLEMENT OF $56.50 IN CONNECTION WITH WHICH YOU PLEADED GUILTY AT A CRIMINAL TRIAL AND FOR WHICH YOU MADE RESTITUTION; AND (2) THE EMBEZZLEMENT OF FUNDS TOTALING $417.49 (THE AMOUNT HERE IN QUESTION) INVOLVING SEVEN COD PARCELS, FOR WHICH YOU WERE NOT CRIMINALLY PROSECUTED BUT FOR WHICH YOU HAVE BEEN HELD RESPONSIBLE.

YOUR FIRST CONTENTION IS THAT THE POSTAL INSPECTOR WHO INVESTIGATED YOUR CASE STATED AT THE TIME OF YOUR ARREST THAT NO MONEYS WOULD BE WITHHELD FROM YOU (OTHER THAN THE $56.50 FOUND ON YOUR PERSON). HOWEVER, EVEN IF SUCH A STATEMENT WAS MADE, THE CLAIM AGAINST THE PERSON OR PERSONS RESPONSIBLE FOR THE OTHER EMBEZZLEMENTS BELONGED TO THE UNITED STATES AND NOT TO THE POSTAL INSPECTOR. IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, NO GOVERNMENT AGENT HAS AUTHORITY TO WAIVE OR SURRENDER A VESTED RIGHT OF THE GOVERNMENT; CONSEQUENTLY, AN ATTEMPTED WAIVER OR SURRENDER OF SUCH A RIGHT BY A POSTAL INSPECTOR WOULD BE WITHOUT FORCE AND EFFECT.

YOUR APPEAR TO CONTEND ALSO THAT THE FACT THAT NO MENTION OF FURTHER RESTITUTION OF FUNDS WAS MADE AT YOUR TRIAL OR BEFORE IT HAS A BEARING ON THE LIABILITY HERE IN QUESTION. WE POINT OUT THAT CRIMINAL AND CIVIL LIABILITY ARE SEPARATE AND DISTINCT, AND DISPOSITION OF THE CRIMINAL ASPECTS OF A CASE DOES NOT DISPOSE OF THE CIVIL ASPECTS.

YOU INDICATE THE BELIEF THAT THE FACT THAT ANOTHER EMPLOYEE AT THE SAME POST OFFICE WAS FOUND ENGAGING IN MAIL THEFT AND WAS DISMISSED WOULD WARRANT A CONCLUSION DIFFERENT FROM THAT HERETOFORE REACHED BY POSTAL AUTHORITIES AS TO YOUR RESPONSIBILITY. IF YOU BELIEVE THAT SUCH FACT WARRANTS FURTHER INVESTIGATION OF YOUR CASE, ANY REQUEST YOU MAY WISH TO MAKE IN THAT REGARD SHOULD BE ADDRESSED TO THE CHIEF POSTAL INSPECTOR, POST OFFICE DEPARTMENT, WASHINGTON, D.C. 20260

THE PRESENTATION AS MADE IN YOUR SUBJECT LETTER DOES NOT, IN OUR OPINION, OVERCOME THE PRIMA FACIE CASE OF LIABILITY WHICH WE HERETOFORE HAVE CONSIDERED AS HAVING BEEN ESTABLISHED, AS EXPLAINED TO YOU IN OUR DECISION OF NOVEMBER 9, 1964. THEREFORE, OUR PREVIOUS ACTION IN THE MATTER MUST BE SUSTAINED.