B-211962, MAR 6, 1985, OFFICE OF GENERAL COUNSEL

B-211962, MAR 6, 1985, OFFICE OF GENERAL COUNSEL

ACCOUNTABLE OFFICERS - RELIEF - ADMINISTRATIVE RECOMMENDATION - ABSENT DIGEST: GAO CANNOT BELIEVE A DEPARTMENT OF LABOR ACCOUNTABLE OFFICER OF A DEFICIENCY IN HIS IMPREST FUND ACCOUNT WHERE DOL HAS FAILED TO SATISFY THE REQUIREMENTS OF 31 U.S.C. 3527(A) BY DETERMINING THAT THE ACCOUNTABLE OFFICER WAS WITHOUT FAULT OR NEGLIGENCE IN CONNECTION WITH THE LOSS, OR THAT PERVASIVE LAXITY OF OFFICE PROCEDURES AND NOT THE OFFICER'S NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE LOSS.

MARGARET PENA, ESQ.: DISTRICT COUNSEL AFGE DISTRICT 14 8020 NEW HAMPSHIRE AVENUE

HYATTSVILLE, MARYLAND 20783

THIS IS IN RESPONSE TO YOUR DECEMBER 13, 1984 LETTER REQUESTING THAT THIS OFFICE RECONSIDER ITS DECISION LETTER, B-211962, JULY 20, 1983, THAT REFUSED TO RELIEVE MONDELL J. VALENTINE, A DEPARTMENT OF LABOR (DOL) IMPREST FUND CASHIER, FOR A DEFICIENCY IN HIS ACCOUNT OF $8,202. AS WE STATED IN THE ABOVE REFERENCED LETTER, THE AUTHORITY OF THIS OFFICE TO GRANT RELIEF TO ACCOUNTABLE OFFICERS IS GOVERNED BY THE PROVISIONS OF 31 U.S.C. SEC. 3527(A). UNDER THAT STATUTE, THE COMPTROLLER GENERAL MAY ONLY GRANT RELIEF WHEN THE HEAD OF AN AGENCY OR DEPARTMENT DETERMINES THAT: (1) THE ACCOUNTABLE OFFICER 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 ON THE PART OF THE ACCOUNTABLE OFFICER. THE COMPTROLLER GENERAL HAS NO AUTHORITY TO WAIVE EITHER OF THESE CRITERIA. WHEN BOTH CRITERIA ARE NOT SATISFIED, THIS OFFICE DOES NOT HAVE DISCRETION TO GRANT RELIEF.

IN A MAY 12, 1983 LETTER, THAT YOU CITE, FROM MS. BETTY BOLDEN, DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT, DEPARTMENT OF LABOR, TO ROBERT O. THOMPSON, CHIEF DISBURSING OFFICER, DIVISION OF DISBURSEMENT, DEPARTMENT OF THE TREASURY, THE FOLLOWING CONCLUSION IS SET FORTH:

"WE HAVE DETERMINED THAT THE DEFICIENCY OCCURRED WHILE MR. VALENTINE WAS ACTING IN THE DISCHARGE OF HIS DUTIES. HOWEVER, AS STATED ABOVE, WE CANNOT CONCLUSIVELY DETERMINE WHETHER OR NOT THE LOSS WAS HIS FAULT OR A RESULT OF HIS NEGLIGENCE."

WHILE DOL HAS DETERMINED THAT THE ACCOUNTABLE OFFICER WAS CARRYING OUT HIS OFFICIAL DUTIES WHEN THE DEFICIENCY OCCURRED, IT HAS SPECIFICALLY FAILED TO DETERMINE THAT THE DEFICIENCY WAS NOT THE RESULT OF FAULT OR NEGLIGENCE ON THE PART OF THE ACCOUNTABLE OFFICER. ACCORDINGLY, THIS OFFICE HAS NO DISCRETION TO RELIEVE MR. VALENTINE BECAUSE THE STATUTORY CRITERIA HAVE NOT BEEN SATISFIED.

YOU CONTEND IN YOUR SUBMISSION THAT THE DEFICIENCY IN THE ACCOUNT WAS THE RESULT OF LAX ADMINISTRATIVE PROCEDURES ESTABLISHED BY THE DEPARTMENT OF LABOR. IN ITS INITIAL SUBMISSION, DOL ADMITTED THAT CERTAIN OF ITS PROCEDURES WERE INADEQUATE AND CONTRIBUTED TO THE FUND SHORTAGE. DOL IS FREE, OF COURSE, TO RECONSIDER ITS DETERMINATION REGARDING YOUR CLIENT'S FAULT OR NEGLIGENCE AT ANY TIME OR IN THE ALTERNATIVE, TO FIND THAT IT WAS THE PERVASIVE LAXITY OF OFFICE PROCEDURES RATHER THAN THE NEGLIGENCE OF THE ACCOUNTABLE OFFICER THAT WAS THE PROXIMATE CAUSE OF THE LOSS. AS WE STATED IN OUR EARLIER OPINION, WE HAVE RELIEVED ACCOUNTABLE OFFICERS FROM LIABILITY FOR LOSSES IN SIMILAR SITUATIONS, WHERE ACCESS TO THE FUNDS WAS SHARED WITH A NUMBER OF PERSONS BY VIRTUE OF KNOWLEDGE OF A SAFE COMBINATION OR WHERE PROTECTIVE FACILITIES PROVIDED BY THE GOVERNMENT WERE INADEQUATE TO SAFEGUARD THE GOVERNMENT'S FUNDS. E.G., B-205985, JULY 12, 1982. IF DOL WISHES TO RESUBMIT ITS REQUEST FOR RELIEF, MAKING EITHER OF THESE FINDINGS, WE WOULD BE GLAD TO RECONSIDER OUR DECISION.