B-221447, JUN 1, 1987, OFFICE OF GENERAL COUNSEL

B-221447, JUN 1, 1987, OFFICE OF GENERAL COUNSEL

APPROPRIATIONS/FINANCIAL MANAGEMENT - ACCOUNTABLE OFFICERS - RELIEF - PHYSICAL LOSSES - GAO DECISIONS - RECONSIDERATION DIGEST: REQUEST FOR RECONSIDERATION BY VETERANS ADMINISTRATION OF PRIOR DECISIONS DENYING RELIEF OF ACCOUNTABLE OFFICER FOR UNEXPLAINED LOSS OF PATIENT FUNDS FROM TWO-PART DROP SAFE IS GRANTED WHERE NEW EVIDENCE SUGGESTS THAT THERE WAS UNCONTROLLED ACCESS TO THE BOTTOM PORTION OF THE SAFE WHICH PROVIDES AS INDEPENDENT BASIS FOR RELIEF.

MR. CONRAD R. HOFFMAN:

YOU REQUESTED THAT WE RECONSIDER OUR DECISION B-221447, NOVEMBER 21, 1986, REAFFIRMING OUR PREVIOUS DENIAL FOR RELIEF, B-221347, APRIL 2, 1986, TO MR. DAVID C. FOULK, MEDICAL ADMINISTRATIVE ASSISTANT, FOR THE LOSS OF $2,000 IN CASH ACCEPTED BY MR. FOULK FROM A PATIENT UPON ADMITTANCE TO THE VETERANS ADMINISTRATION MEDICAL CENTER IN SAN FRANCISCO. UPON EXAMINING THE NEW EVIDENCE PROVIDED BY YOU, WE NOW GRANT RELIEF.

AS WE EXPLAINED IN OUR PREVIOUS DECISIONS, MR. FOULK IS AN ACCOUNTABLE OFFICER WHO HAS INCURRED AN UNEXPLAINED LOSS FOR WHICH HE IS PERSONALLY LIABLE. WE ARE AUTHORIZED TO GRANT RELIEF IF WE CAN INDEPENDENTLY AGREE WITH THE VETERANS ADMINISTRATION (VA) RECOMMENDATION THAT MR. FOULK BE RELIEVED. IN ORDER TO RELIEVE HIM FROM PECUNIARY LIABILITY, WE MUST HAVE AFFIRMATIVE EVIDENCE THAT THE LOSS WAS NOT THE RESULT OF HIS NEGLIGENCE.

THE LOSS OF $2,000 WAS DISCOVERED WHEN A PATIENT TENDERED A RECEIPT FOR THAT AMOUNT UPON HIS DISCHARGE, AND THE SUM WAS FOUND MISSING FROM THE AFTER-HOURS SAFE. THE INITIAL SUBMISSION FOR RELIEF INDICATED THAT AN INTERNAL INVESTIGATION CITED PROCEDURAL IRREGULARITIES AND A MALFUNCTIONING DROP SAFE AS POSSIBLE CAUSES OF THE UNEXPLAINED LOSS OF FUNDS. THESE POSSIBLE EXPLANATIONS FOR THE LOSS WERE ELIMINATED BY MR. FOULK'S STATEMENT THAT THE MONEY HAD DROPPED FROM THE DEMONSTRABLY UNSECURE TOP PART OF THE SAFE, WHERE EIGHT PEOPLE INCLUDING MR. FOULK HAD ACCESS, TO THE SECURE BOTTOM PORTION OF THE SAFE. THE BOTTOM PORTION OF THE SAFE REQUIRED THAT TWO OTHER INDIVIDUALS, ONE WITH A KEY AND THE OTHER WITH THE COMBINATION, JOINTLY OPEN THAT PORTION OF THE DROP SAFE. IN THE RECORD BEFORE US IN THE EARLIER SUBMISSIONS, THIS JOINT PROCEDURE APPEARED TO ENSURE ACCOUNTABILITY FOR FUNDS IN THE LOWER PORTION OF THE SAFE. SUCH, WE DENIED RELIEF IN OUR INITIAL DECISION EXPLAINING THAT THE ACCOUNTABLE OFFICER'S STATEMENT, DISCOUNTING ANY PERSONAL NEGLIGENCE WITHOUT ANY FURTHER EVIDENCE EXPLAINING THE LOSS, WAS NOT A SUFFICIENT BASIS FOR RELIEF. IN YOUR INITIAL REQUEST FOR RECONSIDERATION YOU FAILED TO INCLUDE ANY NEW EVIDENCE WHICH WOULD EXPLAIN THE LOSS AND WE THEREFORE AFFIRMED THE PREVIOUS DENIAL OF RELIEF.

IN YOUR CURRENT REQUEST, YOU NOTE THAT THE DIRECTOR OF THE MEDICAL CENTER REQUESTED AN OUTSIDE INVESTIGATION INTO THE SECURITY OF THE SAFE IN WHICH THE LOST FUNDS WERE PLACED. YOU SUBMIT A REPORT FROM THE SAFE EXPERT CONSULTED WHICH SUGGESTS THAT THE BOTTOM PORTION OF THE DROP SAFE, PREVIOUSLY ASSUMED SECURE, COULD BE COMPROMISED RELATIVELY EASILY. SPECIFICALLY, THE EXPERT REPORTED THAT THE BOTTOM PORTION OF THE SAFE COULD BE OPENED WITHOUT A KEY SINCE THE LOCK WAS NOT OF A HIGH SECURITY NATURE. THE REPORT CONCLUDES, THEREFORE, THAT THE INDIVIDUAL WITH THE BOTTOM SAFE COMBINATION COULD OPEN THE SAFE WITHOUT THE ASSISTANCE OF THE HOLDER OF THE KEY.

THIS NEW EVIDENCE PUTS INTO QUESTION A FUNDAMENTAL ASSUMPTION THAT ONCE THE FUNDS WERE DROPPED INTO THE BOTTOM PORTION OF THE SAFE THE JOINT OPENING PROCEDURE CONTROLLED ACCESS AND ENSURED ACCOUNTABILITY. WE FIND THAT THERE WAS IN FACT A LACK OF ACCOUNTABILITY FOR THE FUNDS AFTER THEY WERE IN THE BOTTOM PORTION OF THE SAFE BECAUSE THAT PORTION COULD BE COMPROMISED, PERMITTING UNCONTROLLED ACCESS. AS SUCH, WE ARE UNABLE TO PLACE RESPONSIBILITY FOR THE LOSS DEFINITELY ON MR. FOULK BECAUSE ANOTHER PERSON HAD UNCONTROLLED ACCESS TO THE FUNDS AFTER MR. FOULK DROPPED THEM IN TO THE BOTTOM PORTION OF THE SAFE. THIS PROVIDES AN INDEPENDENT BASIS FOR RELIEF UNDER OUR DECISIONS. SEE B-214080, MARCH 25, 1986, AND B-191440, MAY 25, 1979.

IN LIGHT OF THE NEW EVIDENCE INDICATING THE POTENTIAL FOR UNCONTROLLED ACCESS TO THESE FUNDS BY ANOTHER PERSON, WE FIND THAT MR. FOULK CANNOT BE HELD RESPONSIBLE FOR THE LOSS. RELIEF IS GRANTED ACCORDINGLY.