B-204173 L/M, NOV 9, 1982, OFFICE OF GENERAL COUNSEL

B-204173 L/M: Nov 9, 1982

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CLEMENS: THIS IS IN RESPONSE TO YOUR LETTER DATED APRIL 10. IN THAT DECISION WE REFUSED TO RELIEVE YOU OF PERSONAL LIABILITY FOR $855.88 OF FEDERAL AVIATION ADMINISTRATION IMPREST FUNDS STOLEN FROM AN UNLOCKED SAFE WHILE THEY WERE IN YOUR CUSTODY AS IMPREST FUND CLASS "B" CASHIER FOR THE FAA DENVER (HUB) AIRWAY FACILITIES SECTOR IN AURORA. WE HAVE CONSIDERED THE ADDITIONAL INFORMATION PROVIDED IN YOUR LETTERS TO THIS OFFICE DATED MARCH 5. A FEDERAL ACCOUNTABLE OFFICER IS HELD TO A HIGH STANDARD OF CARE WITH RESPECT TO THE FUND WITH WHICH HE OR SHE IS CHARGED. 48 COMP.GEN. 566. THE BURDEN IS ON THE ACCOUNTABLE OFFICER TO PRESENT CONVINCING EVIDENCE THAT THE LOSS WAS NOT CAUSED BY NEGLIGENCE ON HIS OR HER PART.

B-204173 L/M, NOV 9, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MS. SHIRLEY E. CLEMENS:

THIS IS IN RESPONSE TO YOUR LETTER DATED APRIL 10, 1982, REQUESTING RECONSIDERATION OF OUR DECISION B-204173, JANUARY 11, 1982. IN THAT DECISION WE REFUSED TO RELIEVE YOU OF PERSONAL LIABILITY FOR $855.88 OF FEDERAL AVIATION ADMINISTRATION IMPREST FUNDS STOLEN FROM AN UNLOCKED SAFE WHILE THEY WERE IN YOUR CUSTODY AS IMPREST FUND CLASS "B" CASHIER FOR THE FAA DENVER (HUB) AIRWAY FACILITIES SECTOR IN AURORA, COLORADO.

WE HAVE CONSIDERED THE ADDITIONAL INFORMATION PROVIDED IN YOUR LETTERS TO THIS OFFICE DATED MARCH 5, 1982 AND APRIL 10, 1982, AND IN YOUR TELEPHONE COMMUNICATION ON OCTOBER 7, 1982. IN ADDITION, THE HARSH RESULT IN YOUR CASE HAS PROMPTED US TO CONDUCT A REPEATED AND EXHAUSTIVE REVIEW OF YOUR CASE FILE AND THE APPLICABLE PRECEDENT. NEVERTHELESS, FOR THE REASONS STATED BELOW, WE MUST DENY RELIEF.

AS WE INDICATED IN OUR JANUARY 11, 1982, DECISION, A FEDERAL ACCOUNTABLE OFFICER IS HELD TO A HIGH STANDARD OF CARE WITH RESPECT TO THE FUND WITH WHICH HE OR SHE IS CHARGED. 48 COMP.GEN. 566, 567-68 (1969). WHEN A LOSS OF FEDERAL FUNDS OCCURS, THE BURDEN IS ON THE ACCOUNTABLE OFFICER TO PRESENT CONVINCING EVIDENCE THAT THE LOSS WAS NOT CAUSED BY NEGLIGENCE ON HIS OR HER PART. SEE, E.G., B-188733, MAY 19, 1980; B-167126, AUGUST 9, 1976.

IN THE CASE AT HAND, THE FUNDS WERE STOLEN FROM AN UNLOCKED SAFE. THE SAFE WAS IN A ROOM ADJACENT TO YOUR WORK AREA, OUT OF YOUR LINE OF SIGHT. YOU WERE EATING LUNCH AT THE TIME OF THE THEFT. IN ESSENCE, IT IS OUR VIEW THAT YOU SHOULD HAVE LOCKED THE SAFE WHILE YOU WERE AT LUNCH. NOT TO DO SO UNDER THESE CIRCUMSTANCES WAS NEGLIGENT. THIS POSITION IS CONSISTENT WITH OUR DECISION IN A LARGE NUMBER OF SUBSTANTIALLY SIMILAR CASES IN THE PAST. SEE, E.G., B-199790, MARCH 26, 1981; B-188733, MAY 19, 1980; B-183559, AUGUST 28, 1975.

WE APPRECIATE YOUR OBSERVATION THAT, BECAUSE OF THE NEED FOR REPEATED ACCESS TO THE IMPREST FUND DURING THE WORKDAY, IT WOULD HAVE BEEN EXTREMELY IMPRACTICAL TO UNLOCK AND LOCK THE SAFE FOR EACH TRANSACTION. HOWEVER, THE RECORD INDICATES THAT YOU WERE ON YOUR LUNCH BREAK WHEN THE THEFT TOOK PLACE. YOUR UNFORTUNATE FAILURE TO LOCK THE SAFE DURING YOUR LUNCH, A PERIOD IN WHICH THE IMPREST FUND WAS BOTH INACTIVE AND UNATTENDED, CREATED AN OBVIOUS OPPORTUNITY FOR THE THIEF.

YOU HAVE INDICATED TO US THAT PRIOR TO THE THEFT, YOU HAD REQUESTED THAT THE SAFE BE MOVED FROM AN ADJACENT ROOM TO AN AREA WITHIN YOUR SIGHT. THE MERIT OF THESE REQUESTS IS CLEARLY INDICATED BY THE FACT THAT THE SAFE WAS BELATEDLY MOVED TO YOUR IMMEDIATE WORK AREA SHORTLY AFTER THE THEFT. NEVERTHELESS, THIS OFFICE MAY NOT GRANT RELIEF IF THERE IS ANY EVIDENCE OF NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER, WHEN THAT NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE LOSS. B-189084, JANUARY 15, 1980. SEE, ALSO, B-199790, MARCH 26, 1981. YOUR FAILURE TO LOCK THE SAFE WAS CLEARLY THE PROXIMATE CAUSE OF THE LOSS IN THIS CASE. HAD YOU LOCKED THE SAFE, REGARDLESS OF WHERE IT WAS LOCATED, THE MONEY WOULD NOT HAVE BEEN STOLEN.

YOUR LETTERS TO THIS OFFICE INDICATE THAT YOU FEEL THAT YOUR HEAVY WORKLOAD AND GOOD WORK RECORD SHOULD BE TAKEN INTO ACCOUNT IN DECIDING WHETHER OR NOT TO GRANT RELIEF FROM LIABILITY. WE AGREE THAT THERE IS NOTHING IN THE RECORD TO INDICATE THAT YOU WERE NOT A LOYAL AND COMPETENT EMPLOYEE DURING YOUR YEARS OF FEDERAL SERVICE. HOWEVER, RELIEF UNDER 31 U.S.C. SEC. 3527 (FORMERLY SEC. 82A-1), PUB.L. NO. 97-258 (SEPTEMBER 13, 1982), IS GRANTED OR DENIED SOLELY ON THE BASIS OF THE STATUTE AND THE ASSOCIATED PRINCIPLES OF LAW DISCUSSED ABOVE. RELIEF MAY NOT BE GRANTED ON THE BASIS OF EQUITABLE CONSIDERATIONS. WHEN AN ACCOUNTABLE OFFICER HAS BEEN FOUND TO BE AT FAULT, NEITHER A HEAVY WORKLOAD NOR A LONG PERIOD OF LOYAL AND DEPENDABLE SERVICE IS RELEVANT. 48 COMP.GEN. 566 (1969); B-183559, AUGUST 28, 1975.

WE REGRET THAT BASED ON THE FACTS OF YOUR CASE AND THE APPLICABLE LAW, WE HAVE NO CHOICE BUT TO AGAIN DENY RELIEF.

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