B-211962, JUL 20, 1983, OFFICE OF GENERAL COUNSEL

B-211962, JUL 20, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MS. BETTY BOLDEN, DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT DEPARTMENT OF LABOR:

THIS IS IN RESPONSE TO YOUR LETTER OF MAY 12, 1983, REQUESTING PARTIAL RELIEF FOR MONDELL J. VALENTINE, A CASHIER FOR THE DEPARTMENT OF LABOR, FROM LIABILITY FOR AN IMPREST FUND LOSS. FOR THE REASONS STATED BELOW, RELIEF IS NOT GRANTED.

ACCORDING TO THE INFORMATION SUBMITTED, AN AUDIT OF MR. VALENTINE'S IMPREST FUND, ON JANUARY 30, 1979, DISCLOSED A DEFICIENCY OF $8,202.00. THE FACTUAL DETAILS SURROUNDING THE INCIDENT HAVE NOT BEEN FURNISHED WITH THE REQUEST FOR RELIEF. WE HAVE BEEN TOLD, HOWEVER, THAT SUBSEQUENT INVESTIGATIONS BY THE LABOR DEPARTMENT'S OFFICE OF INSPECTOR GENERAL AND BY THE SECRET SERVICE FAILED TO DISCLOSE ANY "THEFT OR MISALLOCATION OF FUNDS" BY MR. VALENTINE. ALSO, THE AUDIT DISCLOSED SEVERAL OPERATING DEFICIENCIES IN THE MANAGEMENT OF THE IMPREST FUND. THE DEFICIENCIES INCLUDED ALLOWING ACCESS TO THE FUND BY FOUR OTHER EMPLOYEES, BORROWING OF MONEY BETWEEN FUNDS, AND THE ABSENCE OF ANY REGULAR, UNANNOUNCED CASH COUNTS.

BASED ON THE AUDIT AND INVESTIGATIONS, THE LABOR DEPARTMENT HAS ADMINISTRATIVELY DETERMINED THAT THE DEFICIENCY OCCURRED WHILE MR. VALENTINE WAS ACTING IN THE DISCHARGE OF HIS DUTIES. THE AGENCY, HOWEVER, WAS UNABLE TO DETERMINE WHETHER OR NOT THE LOSS WAS THE RESULT OF MR. VALENTINE'S NEGLIGENCE. INSTEAD, THE AGENCY CONCLUDED THAT MANAGEMENT WAS AT LEAST PARTLY TO BLAME AND, THEREFORE, REQUESTS THAT MR. VALENTINE BE RELIEVED OF 75 PERCENT OF THE LOSS, $6,151.50.

THE COMPTROLLER GENERAL IS AUTHORIZED TO GRANT RELIEF, PURSUANT TO 31 U.S.C. SEC. 3527(A) (FORMERLY 31 U.S.C. SEC. 82A-1), TO AN ACCOUNTABLE OFFICER FOR A PHYSICAL LOSS OR DEFICIENCY OF PUBLIC MONEY. IN ORDER FOR US TO GRANT RELIEF, THE HEAD OF THE AGENCY MUST DETERMINE THAT: (1) THE OFFICIAL WAS CARRYING OUT OFFICIAL DUTIES WHEN THE LOSS OR DEFICIENCY OCCURRED, AND (2) THE LOSS OR DEFICIENCY WAS NOT THE RESULT OF FAULT OR NEGLIGENCE BY THE OFFICIAL. ALSO, THE COMPTROLLER GENERAL MUST AGREE WITH THE AGENCY HEAD'S DETERMINATION, AND THE LOSS OR DEFICIENCY MUST NOT BE THE RESULT OF AN ILLEGAL OR INCORRECT PAYMENT. IN THIS CASE, THE RECORD CONTAINS THE "CARRYING-OUT OFFICIAL DUTIES" DETERMINATION, BUT DOES NOT CONTAIN THE "NO FAULT OR NEGLIGENCE" DETERMINATION. INSTEAD, HE MR. VALENTINE, APPARENTLY BASED ON A COMPARATIVE NEGLIGENCE THEORY.

THE CONCEPT OF COMPARATIVE NEGLIGENCE IS FAIRLY SIMPLE; WHERE THERE IS NEGLIGENCE ON THE PART OF BOTH PARTIES, DAMAGES WILL BE DIVIDED IN RELATION TO EACH PARTY'S DEGREE OF FAULT. SEE W. PROSSER, HANDBOOK ON THE LAW OF TORTS, P. 433-39 (4TH ED. 1972). IN MANY CONTEXTS COMPARATIVE NEGLIGENCE HAS BEEN WIDELY ACCEPTED. IN TWO PREVIOUS CASES, HOWEVER, WE STATED THAT THE CONCEPT OF "RELATIVE NEGLIGENCE" DOES NOT APPLY WHEN GRANTING RELIEF UNDER 31 U.S.C. SEC. 3527(A). B-190506, NOVEMBER 28, 1977; B-193701, MARCH 29, 1979, REVERSED ON OTHER GROUNDS BY B-193701, MARCH 18, 1980.

WE FIND THAT 31 U.S.C. SEC. 3527(A) DOES NOT CONTEMPLATE THE CONCEPT OF COMPARATIVE NEGLIGENCE. ON ITS FACE, THE STATUTE ALLOWS US TO GRANT RELIEF ONLY WHERE THE LOSS OR DEFICIENCY "WAS NOT THE RESULT OF FAULT OR NEGLIGENCE" BY THE EMPLOYEE. NOWHERE DOES THE STATUTE SUGGEST THE CONCEPT OF COMPARATIVE FAULT. COMPARE, E.G., 45 U.S.C. SEC. 53 (1976) ("DAMAGES SHALL BE DIMINISHED *** IN PROPORTION TO THE AMOUNT OF NEGLIGENCE ATTRIBUTABLE TO SUCH EMPLOYEE ***").

ALTHOUGH ONE MIGHT ARGUE THAT THE TERMS "FAULT" AND "NEGLIGENCE" EMBODY THE NOTION OF COMPARATIVE FAULT OR NEGLIGENCE, WE DO NOT FIND THE ARGUMENT TO BE PERSUASIVE. THE LEGISLATIVE HISTORY OF 31 U.S.C. SEC. 3527(A) CLEARLY AND CONSISTENTLY INDICATES THAT CONGRESS INTENDED TO GRANT RELIEF ONLY TO ACCOUNTABLE OFFICERS WHO WERE IN NO WAY AT FAULT OR NEGLIGENT. FOR EXAMPLE, THE REPORT OF SENATE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS STATED THAT:

"THE COMMITTEE EMPHASIZES ALSO THAT THIS BILL IS DIRECTED TO RELIEF *** WHERE THE ACCOUNTABLE GOVERNMENT EMPLOYEE IS FOUND TO BE WHOLLY INNOCENT OF FAULT OR NEGLIGENCE."

S.REP.NO. 379, 80TH CONG., 1ST SESS., AT 3 (JUNE 26, 1947). ALSO, THE HOUSE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, IN THEIR REPORT, CONSISTENTLY REFERRED TO EMPLOYEES WHO WERE "WITHOUT FAULT OR NEGLIGENCE." H.R.REP.NO. 1040, 80TH CONG., 1ST SESS., AT 2 (JULY 23, 1947). ALTHOUGH THE 1982 RECODIFICATION AMENDMENTS CHANGED THE RELEVANT LANGUAGE TO 31 U.S.C. SEC. 3527(A) FROM "WITHOUT FAULT OR NEGLIGENCE" TO "NOT THE RESULT OF FAULT OR NEGLIGENCE," THE MEANING OF THE LANGUAGE REMAINS UNCHANGED. GIVEN THE CLEAR AND CONGRESSIONAL INTENT, WE CANNOT NOW READ THE CONCEPT OF COMPARATIVE NEGLIGENCE INTO 31 U.S.C. SEC. 3527(A).

IN PREVIOUS CASES WE HAVE, UPON THE REQUISITE DETERMINATIONS AND RECOMMENDATIONS, RELIEVED ACCOUNTABLE OFFICERS FROM LIABILITY FOR LOSSES WHERE A NUMBER OF PEOPLE HAD ACCESS TO THE FUNDS, THROUGH KNOWLEDGE OF THE SAFE COMBINATION OR WHERE PROTECTIVE FACILITIES DID NOT PROVIDE ADEQUATE PROTECTION. E.G., B-205985, JULY 12, 1982. ABSENT AN AGENCY DETERMINATION, HOWEVER, THAT MR. VALENTINE WAS WITHOUT FAULT OR NEGLIGENCE, OR THAT HIS NEGLIGENCE DID NOT CONTRIBUTE TO THE LOSS, WE DO NOT HAVE THE AUTHORITY TO GRANT RELIEF REGARDLESS OF THE MERITS OF THE CASE. B-204464, JANUARY 19, 1982.