B-209569 L/M, APR 13, 1983, OFFICE OF GENERAL COUNSEL

B-209569 L/M, APR 13, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

ROBERT L. FAIRMAN, DEPARTMENT OF TRANSPORTATION:

THIS IS IN RESPONSE TO YOUR REQUEST THAT CHIEF WARRANT OFFICER, MAURICE W. GARDNER, III, CLASS "A" CASHIER, U. S. COAST GUARD, USCGC POLAR STAR, BE RELIEVED FROM LIABILITY FOR A $5,450 IMPREST FUND SHORTAGE. FOR THE FOLLOWING REASONS, WE GRANT THE REQUESTED RELIEF.

ON MAY 27, 1981, CWO2 GARDNER DISCOVERED A SHORTAGE OF APPROXIMATELY $5,000 WHILE PREPARING HIS MONTHLY ACCOUNTABILITY REPORT. A SUBSEQUENT AUDIT OF THE RECORDS INDICATED THAT THE ACTUAL LOSS TOTALLED $5,450. HIS STATEMENT, CW02 GARDNER INDICATED THAT THE CASH COUNT WAS CORRECT ON APRIL 30, 1981 AND THAT IT WAS LAST VERIFIED AGAINST HIS WORKPAPERS ON OR ABOUT MAY 15, 1981.

IN HIS LETTER OF JUNE 1, 1982, REQUESTING RELIEF FROM LIABILITY FOR THE LOSS, CWO2 GARDNER STATES THAT HE WAS IN COMPLIANCE WITH ALL APPLICABLE REGULATIONS CONCERNING THE SAFEGUARDING OF THE FUNDS. ALTHOUGH THERE IS SOME CONFLICT ON THIS POINT, THE RECORD GENERALLY SUBSTANTIATES CWO2 GARDNER'S CLAIM THAT ADEQUATE PRECAUTIONS WERE TAKEN. IT APPEARS THAT THE OFFICE WAS CLEARED WHILE FUNDS WERE COUNTED AND ACCESS TO THE WORK AREA WAS LIMITED WHILE THE SAFE WAS OPEN.

AN INVESTIGATION WAS CONDUCTED BY U. S. COAST GUARD INTELLIGENCE. THE INVESTIGATION DISCLOSED THAT AN ENVELOPE CONTAINING THE COMBINATION TO CWO2 GARDNER'S SAFE WAS CUT OPEN. THIS ENVELOPE WAS STORED IN A SECURITY SAFE LOCATED IN THE RADIOMAN'S RADIOROOM AND SUPPLY OFFICE IN ACCORDANCE WITH THE TREASURY DEPARTMENT'S "MANUAL OF PROCEDURES AND INSTRUCTIONS FOR CASHIERS." HOWEVER, THIS SAFE WAS NORMALLY LEFT OPEN DURING WORKING HOURS AND WAS ACCESSIBLE BY ALL RADIOMEN. IT WAS ALSO DISCOVERED THAT THE ENVELOPE CONTAINING THE COMBINATION TO THE RADIOMAN'S SAFE WAS IMPROPERLY SEALED AND WAS PARTIALLY OPEN. THIS ENVELOPE WAS LOCATED IN THE COMPANY COMMANDER'S SAFE AND THE RECORD IS UNCLEAR AS TO THE DEGREE OF ACCESS TO THIS SAFE.

THE COAST GUARD INVESTIGATION WAS INCONCLUSIVE. NO DIRECT EVIDENCE WAS UNCOVERED WHICH IMPLICATED ANYONE IN THE DISAPPEARANCE OF THE FUNDS. CWO2 GARDNER VOLUNTARILY SUBMITTED TO A POLYGRAPH EXAMINATION. THE POLYGRAPH EXAMINER CONCLUDED THAT THERE WAS DECEPTION BY CWO2 GARDNER IN HIS RESPONSE TO TWO QUESTIONS ASKING WHETHER HE STOLE THE MONEY FROM THE USCGC POLAR STAR. HOWEVER, NO DISCIPLINARY OR ADMINISTRATIVE ACTION WAS INITIATED.

THE COMMANDING OFFICER OF POLAR STAR HAS RECOMMENDED RELIEF BECAUSE OF THE POSSIBILITY THAT SOMEONE COULD HAVE STOLEN THE MONEY AFTER TAKING AND USING THE COMBINATION TO THE CASHIER'S SAFE HELD IN THE SAFE IN THE SECURE RADIO ROOM. HE, HOWEVER, DOES NOT RULE OUT THE POSSIBILITIES THAT (A) THE CASHIER TOOK THE FUNDS HIMSELF (B) SOMEONE WORKING IN THE SUPPLY ROOM OBSERVED THE CASHIER USING THE COMBINATION, USED IT AND STOLE THE MONEY OR (C) THE CASHIER LEFT THE SAFE OPEN AND SOMEONE TOOK THE MONEY. ON REVIEW OF THE RECORD, WE AGREE, BUT WOULD CONCLUDE THAT THE LAST THREE POSSIBILITIES APPEAR LESS LIKELY THAN THE FIRST. THE FACT THAT THERE IS NO EXPLANATION FOR THE ENVELOPE IN THE RADIOMAN'S SAFE CONTAINING THE COMBINATION BEING OPEN APPEARS TO US TO POINT TO THIS AS THE SOURCE OF ACCESS TO THE CASHIER'S SAFE. EXCEPT FOR THE LAST POSSIBILITY, THAT THE SAFE WAS LEFT UNATTENDED WHILE SOMEONE STOLE THE FUNDS, THERE IS NO DIRECT EVIDENCE TO SUPPORT THESE THEORIES. IN THE LAST POSSIBILITY, A STOREKEEPER WHO WORKED IN THE AREA SAID THAT ON OCCASION CWO2 GARDNER WOULD LEAVE HIS DESK NEAR THE SAFE WHILE COUNTING FUNDS, BUT IT IS NOT CLEAR FROM THIS STATEMENT IF ANYONE HAD ACCESS TO THE SAFE DURING WHAT APPEAR FROM THE DESCRIPTION TO BE BRIEF DISTRACTIONS, NOR DOES IT SEEM LIKELY THAT THERE WOULD HAVE BEEN TIME TO "LIGHTEN" THE BUNDLES OF CASH BY TAKING ONE OR MORE BILLS FROM SEVERAL BUNDLES.

THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED TO GRANT RELIEF FROM LIABILITY TO AN ACCOUNTABLE OFFICER UPON ITS CONCURRENCE WITH DETERMINATIONS BY THE DEPARTMENT OR AGENCY HEAD THAT (1) THE LOSS OR DEFICIENCY OCCURRED WHILE THE OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THAT IT OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF THE OFFICER OR AGENT, AND (2) THE LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE OFFICER OR AGENT. 31 U.S.C. SEC. 3527(A) (CODIFIED FROM 31 U.S.C. SEC. 82A-1 BY PUB. L. NO. 97-258, 96 STAT. 965, SEPTEMBER 13, 1982).

THE SHORTAGE INVOLVED IN THIS CASE IS AN "UNEXPLAINED LOSS." GENERALLY, THE DISAPPEARANCE OF FUNDS WITHOUT AN EXPLANATION GIVES RISE TO A PRESUMPTION OF NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER AND THE BURDEN IS ON THE OFFICER TO REBUT THE PRESUMPTION WITH EVIDENCE TO THE CONTRARY. 48 COMP.GEN. 566 (1969). THE ABSENCE OF IMPLICATING EVIDENCE IS NOT SUFFICIENT TO REBUT THE PRESUMPTION NOR IS A MERE ADMINISTRATIVE DETERMINATION THAT THERE WAS NO FAULT OR NEGLIGENCE IF IT IS UNSUPPORTED BY EVIDENCE. B-204647, FEBRUARY 8, 1982.

IN THIS REGARD, CWO2 GARDNER HAS SUBMITTED STATEMENTS WHICH INDICATE THAT HE ACTED IN THE MANNER OF A REASONABLY PRUDENT PERSON TAKING CARE OF HIS OR HER OWN PROPERTY OF LIKE DESCRIPTION UNDER LIKE CIRCUMSTANCES. B-193673, MAY 25, 1979. FURTHER, WE HAVE OFTEN HELD THAT WHERE THERE IS AN UNEXPLAINED LOSS, EVIDENCE OF FAULTY AGENCY SECURITY WILL REBUT THE PRESUMPTION OF NEGLIGENCE AND PERMIT THE GRANTING OF RELIEF. RELIEF IS USUALLY GRANTED WHEREWHERE SEVERAL PERSONS OTHER THAN THE ACCOUNTABLE OFFICER ARE FOUND TO HAVE ACCESS TO THE FUNDS THROUGH KNOWLEDGE OF THE SAFE COMBINATION. B-199034, FEBRUARY 9, 1981. IN THE PRESENT CASE, THE COMBINATION OF CWO2 GARDNER'S SAFE WAS AVAILABLE TO ANYONE WHO HAD ACCESS TO THE SAFE IN THE RADIOMAN'S RADIOROOM AND SUPPLY OFFICE. SINCE SEVERAL PERSONS FALL INTO THIS CATEGORY, THE LOSS CANNOT BE ATTRIBUTED TO ANY LACK OF DUE CARE ON THE PART OF CWO2 GARDNER.

THE REMAINING QUESTION IS TO DETERMINE TO WHAT EXTENT, IF ANY, THIS RESULT IS CHANGED BY CWO2 GARDNER'S FAILURE TO PASS THE POLYGRAPH EXAMINATION. WE HAVE HELD IN PRIOR CASES THAT THE FAVORABLE RESULT OF A POLYGRAPH EXAMINATION, STANDING ALONE, IS INSUFFICIENT TO REBUT THE PRESUMPTION OF NEGLIGENCE AND PERMIT THE GRANTING OF RELIEF. B-206745, AUGUST 9, 1982; B-204647, ID. WE SIMILARLY ARE OF THE OPINION THAT FAILURE TO PASS A POLYGRAPH, WITHOUT MORE, DOES NOT PROVIDE SUFFICIENT EVIDENCE TO SUPPORT A DETERMINATION OF CULPABILITY OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER. SINCE THE INVESTIGATION, WHICH WAS THOROUGH, DEVELOPED NO DIRECT EVIDENCE THAT THE CASHIER TOOK THE MISSING MONEY AND THE AGENCY HAS RECOMMENDED RELIEF (THUS ACCEPTING THE CASHIER'S STATEMENTS), WE BELIEVE THE POLYGRAPH RESULTS MUST BE DISREGARDED HERE. ACCORDINGLY, CWO2 GARDNER IS GRANTED RELIEF FOR THE FULL AMOUNT OF THE LOSS.

WE HAVE BEEN ADVISED THAT APPROPRIATE MEASURES HAVE BEEN TAKEN BY THE U. S. COAST GUARD TO PREVENT FUTURE SHORTAGES. WE RECOMMEND THAT THE COMBINATION ENVELOPES BE STORED IN A SECURED FACILITY OTHER THAN A "WORKING" SAFE. FINALLY, WE NOTE THAT WE HAVE RETAINED A COPY OF THE INVESTIGATIVE REPORT FOR OUR OWN RECORDS, THE ORIGINAL BEING RETURNED HEREWITH.