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B-207062 L/M, JUL 20, 1982, OFFICE OF GENERAL COUNSEL

B-207062 L/M Jul 20, 1982
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DEPARTMENT OF STATE: THIS IS IN RESPONSE TO YOUR LETTER REQUESTING THAT RELIEF BE GRANTED TO MR. THE RELIEF IS REQUESTED TO COVER A PHYSICAL LOSS OF $1. WHO WAS WORKING WITH THE CUBAN-HAITIAN TASK FORCE. WAS DIRECTED BY HIS SUPERVISOR TO COLLECT TRAVEL ADVANCES AT REFUGEE CAMPS IN THE MIAMI. HE WAS UNABLE TO DELIVER THE MONEY TO THE HEADQUARTERS NOR TO THE SECONDARY RESETTLEMENT CENTER LOCATED ACROSS THE STREET. THERE HE WAS ASSAULTED AND ROBBED OF THE GOVERNMENT FUNDS AND PERSONAL PROPERTY BY TWO UNIDENTIFIED INDIVIDUALS. THE ASSAILANTS HAVE NOT BEEN FOUND NOR HAVE ANY OF THE FUNDS BEEN RETRIEVED. WE CONCUR WITH THE RECOMMENDATIONS AND DETERMINATIONS OF THE AGENCY HEAD OR HIS APPROPRIATE DESIGNEE: "*** (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES.

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B-207062 L/M, JUL 20, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. ROGER B. FELDMAN, DEPARTMENT OF STATE:

THIS IS IN RESPONSE TO YOUR LETTER REQUESTING THAT RELIEF BE GRANTED TO MR. DAVID STAFFORD, A FORMER EMPLOYEE OF THE STATE DEPARTMENT. THE RELIEF IS REQUESTED TO COVER A PHYSICAL LOSS OF $1,030, WHICH MR. STAFFORD HAD IN HIS CUSTODY ON NOVEMBER 26, 1980. FOR THE REASONS EXPLAINED BELOW, WE CANNOT GRANT RELIEF.

THE RECORD INDICATES THAT ON NOVEMBER 26, 1980, MR. STAFFORD, WHO WAS WORKING WITH THE CUBAN-HAITIAN TASK FORCE, WAS DIRECTED BY HIS SUPERVISOR TO COLLECT TRAVEL ADVANCES AT REFUGEE CAMPS IN THE MIAMI, FLORIDA, AREA FROM PERSONNEL WHOSE TRIPS HAD BEEN CANCELLED. HE DID SO AND RETURNED TO THE MIAMI HEADQUARTERS AT APPROXIMATELY 4:30 P.M. WITH THE $1,030 HE HAD COLLECTED. FOR REASONS THAT REMAIN UNCLEAR, HE WAS UNABLE TO DELIVER THE MONEY TO THE HEADQUARTERS NOR TO THE SECONDARY RESETTLEMENT CENTER LOCATED ACROSS THE STREET. AT APPROXIMATELY 8:30 P.M., HE RETURNED TO THE HEADQUARTERS PARKING LOT TO PICK UP HIS CAR. THERE HE WAS ASSAULTED AND ROBBED OF THE GOVERNMENT FUNDS AND PERSONAL PROPERTY BY TWO UNIDENTIFIED INDIVIDUALS. HE FILED A POLICE REPORT THE FOLLOWING DAY. THE ASSAILANTS HAVE NOT BEEN FOUND NOR HAVE ANY OF THE FUNDS BEEN RETRIEVED.

THE GENERAL ACCOUNTING OFFICE HAS AUTHORITY TO GRANT RELIEF TO ACCOUNTABLE OFFICERS FOR THE PHYSICAL LOSS OF GOVERNMENT FUNDS IF, AFTER CONSIDERATION OF THE PERTINENT FINDINGS, WE CONCUR WITH THE RECOMMENDATIONS AND DETERMINATIONS OF THE AGENCY HEAD OR HIS APPROPRIATE DESIGNEE:

"*** (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. ***"

31 U.S.C. SEC. 82A-1 (1976).

HOWEVER, WE HAVE NO AUTHORITY TO GRANT RELIEF UNLESS AND UNTIL THE AGENCY MAKES THE REQUISITE DETERMINATIONS. B-188413, JUNE 30, 1977.

YOUR LETTER DOES NOT INDICATE THAT THESE DETERMINATIONS HAVE BEEN MADE. YOU STATE THAT THE DEPARTMENT OF STATE'S "COMMITTEE OF INQUIRY INTO FISCAL IRREGULARITIES HAS INVESTIGATED THE LOSS AND DETERMINED THAT IT OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF MR. STAFFORD." THAT COMMITTEE'S REPORT, HOWEVER, GIVES NO INDICATION OF THE BASIS FOR THE CONCLUSION REACHED BY THE COMMITTEE MEMBERS. FURTHER, YOU FAIL TO ELABORATE ON OR AGREE WITH THE COMMITTEE'S REPORT, BUT SIMPLY HAVE ENCLOSED AN UNSIGNED COPY OF THAT REPORT WITH YOUR LETTER. WE DO NOT BELIEVE THAT YOU HAVE MADE THE REQUISITE DETERMINATIONS OF THE AGENCY HEAD OR DESIGNEE. WITHOUT THESE DETERMINATIONS WE CANNOT GRANT RELIEF.

IN ADDITION, WE DO NOT HAVE SUFFICIENT INFORMATION FROM YOUR LETTER AND THE ENCLOSED DOCUMENTATION TO ENABLE US TO EVALUATE THE MERITS OF YOUR REQUEST. FOR EXAMPLE, THERE IS NO ADEQUATE EXPLANATION OF WHY MR. STAFFORD COULD NOT HAVE SECURED THE FUNDS AT EITHER OF THE TWO RESETTLEMENT OFFICES AT 4:30. ALTHOUGH WE HAVE BEEN INFORMALLY ADVISED THROUGH TELEPHONE CONVERSATIONS THAT MR. STAFFORD FOUND THE HEADQUARTERS LOCKED UPON HIS RETURN TO THE OFFICES AT 4:30, NOTHING IN THE WRITTEN RECORD SUPPORTS THIS EXPLANATION; AND OUR INFORMAL REQUEST THAT THE STATE DEPARTMENT SUPPLEMENT THE RECORD TO CLARIFY THE AMBIGUITY WAS NOT COMPLIED WITH. THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF REFUGEE RESETTLEMENT, PROVIDED A REPORT, DATED MAY 3, 1982, PURSUANT TO OUR REQUEST, WHICH STATES SIMPLY THAT WHEN MR. STAFFORD ARRIVED AT THE HEADQUARTERS AT 4:30, "NO OFFICIAL AUTHORIZED TO ACCEPT THE MONEY WAS PRESENT AT THE HEADQUARTERS," AND THAT AFTER PROCEEDING TO THE SECOND RESETTLEMENT CENTER, "HE COULD NOT FIND ANY OF THE OFFICIALS AT THE CENTER." THUS, WHETHER THE HEADQUARTERS ACTUALLY WAS LOCKED STILL REMAINS UNCLEAR.

FURTHER, WE HAVE NO INFORMATION CONCERNING WHAT MR. STAFFORD WAS DOING BETWEEN 4:30, WHEN HE FIRST ARRIVED AT HEADQUARTERS, AND 8:30, THE TIME AT WHICH HE WAS ASSAULTED AND ROBBED. ALTHOUGH THE LOSS OF FUNDS WAS REPORTED TO THE POLICE TO HAVE BEEN CAUSED BY THEFT, THE BURDEN IS STILL ON THE ACCOUNTABLE OFFICER TO ESTABLISH THAT THE THEFT WAS NOT CAUSED BY HIS OWN NEGLIGENCE. SEE, E.G., B-188733, MARCH 29, 1979, AFF'D, B-188733, JANUARY 1, 1980; B-164449, DECEMBER 8, 1969; B-71445, JUNE 20, 1949. THE RECORD DOES NOT ESTABLISH THAT MR. STAFFORD'S ACTIONS DID NOT CONTRIBUTE TO THE LOSS.

IN SUMMARY, THIS OFFICE CANNOT ACT ON YOUR REQUEST FOR RELIEF OF MR. STAFFORD UNLESS THE STATE DEPARTMENT MAKES THE REQUISITE DETERMINATIONS AND PROVIDES THE SUPPLEMENTAL FACTUAL INFORMATION, AS DISCUSSED ABOVE, NECESSARY FOR THIS OFFICE TO DETERMINE THE RELEVANT CIRCUMSTANCES SURROUNDING THE LOSS.

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