B-211661, JUL 7, 1983, OFFICE OF GENERAL COUNSEL

B-211661, JUL 7, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. LARRY WILSON, ACTING DIRECTOR, OFFICE OF FINANCE AND MANAGEMENT, UNITED STATES DEPARTMENT OF AGRICULTURE:

THIS IS IN REPLY TO YOUR LETTER DATED APRIL 19, 1983, REQUESTING THAT MS. ANNETTE D. MOYLAN, A CLASS "A" CASHIER AT THE STORED-PRODUCTS INSECTS RESEARCH AND DEVELOPMENT LABORATORY OF THE AGRICULTURAL RESEARCH SERVICE (ARS) IN SAVANNAH, GEORGIA, BE RELIEVED OF LIABILITY FOR A SHORTAGE OF $1,219.94 IN HER IMPREST FUND ACCOUNT. THE SHORTAGE IS A CONSEQUENCE OF A BURGLARY WHICH TOOK PLACE ON OR ABOUT DECEMBER 19, 1982. FOR THE REASONS SET FORTH BELOW, RELIEF IS GRANTED.

THE RECORD INDICATES THAT A BURGLARY OF THE IMPREST FUND OF WHICH MS. MOYLAN IS THE PRINCIPAL CASHIER TOOK PLACE SOMETIME DURING THE WEEKEND OF DECEMBER 17 THROUGH 19, 1982, AT THE ARS FACILITY IN SAVANNAH. THE INVESTIGATIVE REPORT INDICATES THAT ONE OR MORE INDIVIDUALS APPARENTLY GAINED ENTRANCE TO THE BUILDING THROUGH AN UNLOCKED DOOR AND USED HAND CARTS TO REMOVE TWO OFFICE SAFES THROUGH A HOLE CUT IN A CHAIN LINK FENCE AROUND THE BUILDING. THE SAFES HELD, AMONG OTHER PROPERTY, THE IMPREST FUND INCLUDING $643.39 IN CASH AND A $576.55 TREASURY CHECK. THE SAFES WERE THEN APPARENTLY LOADED ON A WAITING VEHICLE AND TAKEN TO AN UNKNOWN LOCATION, WHERE THEY WERE PRIED OPEN AND THEIR CONTENTS RIFLED. DECEMBER 26, 1982, THE SAFES WERE FOUND ABANDONED IN A LOCAL DUMP. THE IMPREST FUND CASH AND CHECK WERE MISSING. THE PROPER AUTHORITIES WERE NOTIFIED AND THEY INVESTIGATED THE MATTER. NEVERTHELESS, TO DATE, THE BURGLAR OR BURGLARS REMAIN AT LARGE AND THE STOLEN CASH HAS NOT BEEN RECOVERED. ALTHOUGH A PROPER "STOP PAYMENT" ORDER WAS PLACED ON THE STOLEN CHECK, IT WAS SUCCESSFULLY NEGOTIATED.

AN ACCOUNTABLE OFFICER IS AN INSURER OF PUBLIC FUNDS IN HIS CUSTODY AND IS EXCUSABLE ONLY FOR LOSS DUE TO ACTS OF GOD OR THE PUBLIC ENEMY. HOWEVER, 31 U.S.C. SEC. 3527(A) (FORMERLY SEC. 82A-1) AUTHORIZES THIS OFFICE TO GRANT RELIEF FROM LIABILITY IF IT CONCURS IN THE DETERMINATIONS BY THE HEAD OF THE AGENCY CONCERNED THAT THE ACCOUNTABLE OFFICER WAS CARRYING OUT HIS OFFICIAL DUTIES WHEN THE LOSS OCCURRED AND THAT THE LOSS WAS NOT THE RESULT OF FAULT OR NEGLIGENCE BY THE OFFICER.

YOU STATE IN YOUR LETTER THAT YOU HAVE DETERMINED THAT "MS. MOYLAN WAS ACTING IN THE DISCHARGE OF HER OFFICIAL DUTIES AND THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON HER PART." WE CONCUR IN THAT DETERMINATION. NOTHING IN THE RECORD SUGGESTS EITHER THAT THE BURGLARY DID NOT OCCUR AS REPORTED OR THAT MS. MOYLAN IS IMPLICATED IN THE BURGLARY IN ANY WAY. GIVEN THE NATURE OF THE BURGLARY WHICH APPARENTLY WAS PLANNED AND TOOK PLACE WHEN NO ONE WAS PRESENT IN THE BUILDING, THERE IS NO INDICATION THAT ANY NEGLIGENCE ON HER PART CONTRIBUTED TO THE LOSS. THIS OFFICE HAS GRANTED RELIEF IN SEVERAL SUBSTANTIALLY SIMILAR CASES IN THE PAST. SEE E.G., B-190205, NOVEMBER 14, 1977.

ACCORDINGLY, WE GRANT RELIEF TO MS. MOYLAN IN THE AMOUNT OF $1,219.94.