B-192109 L/M, JUN 3, 1981, OFFICE OF GENERAL COUNSEL

B-192109 L/M, JUN 3, 1981, OFFICE OF GENERAL COUNSEL

DIGEST: BUREAU OF INDIAN AFFAIRS (BIA) PAID ELIZABETH L. SMITH MINKEY INSTEAD OF ELIZABETH L. SMITH. TO RELIEVE DISBURSING AGENT FOR SUBORDINATE'S MISTAKE, SYSTEM MUST ADEQUATELY PREVENT ERRORS. HERE, SUBORDINATE COMPARED APPLICANT'S INFORMATION (NAME, BIRTHDATE AND SOCIAL SECURITY NUMBERS) WITH BIA RECORDS. PROPER PAYEE'S SOCIAL SECURITY NUMBER WAS UNKNOWN. DIFFERENCE IN NAME PRESUMABLY REFLECTED MARRIAGE. BIRTHDATES DIFFERED BY 6 MONTHS BUT BIA RECORDS ARE OFTEN WRONG AND ENROLLMENT BRANCH TOLD TELLER TO DISREGARD DISCREPENCY. LOSS DID NOT RESULT FROM SHORTCOMING IN SYSTEM ATTRIBUTABLE TO DISBURSING OFFICER. B-192109, OCTOBER 11, 1978, DENYING RELIEF, REVERSED ON RECONSIDERATION.

JAMES G. WATT, SECRETARY OF THE INTERIOR:

THIS IS IN REPLY TO A REQUEST FROM YOUR OFFICE FOR RECONSIDERATION OF OUR DECISION, B-192109, OCTOBER 11, 1978, IN WHICH WE DENIED RELIEF UNDER 31 U.S.C. SEC. 82A-2 TO A. W. BARTLETT, FORMER INDIAN SERVICE SPECIAL DISBURSING AGENT FOR THE IMPROPER DISBURSEMENT OF INDIVIDUAL INDIAN MONEY IN THE AMOUNT OF $894.54, UNLESS FURTHER EVIDENCE WAS PRESENTED.

THE IMPROPER PAYMENT AROSE FROM THE ISSUANCE OF TWO CHECKS, DATED MAY 10, 1976, AND JUNE 8, 1976, TO ELIZABETH L. SMITH MINKEY, ALTHOUGH THE PROPER PAYEE SHOULD HAVE BEEN ANOTHER PERSON, ELIZABETH L. SMITH. APPARENTLY, THE WESTERN WASHINGTON AGENCY OF THE BUREAU OF INDIAN AFFAIRS (BIA) HELD FUNDS DUE ELIZABETH L. SMITH, BUT WAS UNABLE TO LOCATE HER. A WOMAN SIGNING HERSELF ELIZABETH S. MINKEY, RESIDING IN LEWISTON, IDAHO, WROTE TO THE AGENCY STATING THAT SHE HAD BEEN INFORMED THAT BIA WAS TRYING TO CONTACT HER. IN HER LETTER SHE FURNISHED HER SOCIAL SECURITY NUMBER AND HER BIRTHDATE (NOVEMBER 7, 1947).

THE RECORDS AT THE WESTERN WASHINGTON AGENCY INDICATED THAT THE BIRTHDATE FOR ELIZABETH L. SMITH WAS JUNE 28, 1947. (HER SOCIAL SECURITY NUMBER WAS NOT ON RECORD.) YOUR OFFICE STATED THAT IT OFTEN HAPPENS THAT BIA RECORDS DO NOT AGREE WITH THE ACCOUNT HOLDER'S ACTUAL BIRTHDATE. OTHER PAPERS IN THE RECORD SUBMITTED BY YOUR AGENCY, INCLUDING CORRESPONDENCE FROM HER ATTORNEY CONCERNING BIA'S ATTEMPTS TO COLLECT THE ERRONEOUS PAYMENT FROM MS. MINKEY, INDICATE THAT HER FULL NAME IS ELIZABETH L. SMITH MINKEY. FURTHER SUBSTANTIATION IS PROVIDED BY AN EXCHANGE OF CORRESPONDENCE BETWEEN THE WESTERN WASHINGTON AND NORTHERN IDAHO AGENCIES OF BIA WHICH STATE THAT "ELIZABETH SMITH MINKEY" IS AN ENROLLED MEMBER OF THE NEZ PERCE TRIBE OF IDAHO. HAVING APPARENTLY DETERMINED THAT MS. MINKEY'S MAIDEN NAME WAS ELIZABETH L. SMITH, AND ASSUMING THAT MS. MINKEY WAS THE SAME ELIZABETH L. SMITH TO WHOM THE FUNDS WERE DUE, THE DISBURSING TELLER ISSUED THE CHECKS TO MS. MINKEY.

THE BIA BECAME AWARE OF ITS ERROR WHEN CONTACTED BY ELIZABETH L. SMITH, BORN JUNE 28, 1947, THE PROPER PAYEE. TO CORRECT THE ERROR, THE SUM OF $895.45 WAS TRANSFERRED FROM THE INDIVIDUAL INDIAN MONEY ACCOUNT OF ELIZABETH L. SMITH MINKEY, TO THAT OF ELIZABETH L. SMITH, THE RIGHTFUL OWNER. THE RECORD INDICATED THAT THE AGENCY DILIGENTLY PURSUED ACTIONS TO COLLECT THE ERRONEOUS PAYMENT FROM MS. MINKEY BUT THAT, ULTIMATELY, COLLECTION ACTION WAS TERMINATED. THE OVERDRAFT IN HER ACCOUNT WAS ELIMINATED BY CHARGING THE BALANCE OF THE ACCOUNT TO THE DISBURSING OFFICER, A. W. BARTLETT, FOR WHOM RELIEF IS BEING SOUGHT.

THE RECORD ALSO INDICATED THAT A DEPUTY RATHER THAN MR. BARTLETT, ISSUED THE TWO CHECKS TO MS. MINKEY. WE STATED IN OUR PREVIOUS DECISION THE RULE APPLICABLE IN THOSE SITUATIONS WHERE A SUBORDINATE ACTUALLY DISBURSED THE FUNDS RATHER THAN THE DISBURSING OFFICER HIMSELF; "WE HAVE GRANTED RELIEF UPON A SHOWING THAT THE DISBURSING OFFICER PROPERLY SUPERVISED HIS SUBORDINATES BY MAINTAINING AN ADEQUATE SYSTEM OF PROCEDURES AND CONTROLS TO AVOID ERRORS, AND TOOK STEPS TO SEE THAT THE SYSTEM WAS EFFECTIVE AND BEING FOLLOWED."

HOWEVER, FROM THE RECORD BEFORE US AT THAT TIME, WE COULD NOT DETERMINE WHETHER MR. BARTLETT, THE DISBURSING OFFICER, MAINTAINED SUCH A SYSTEM. WE ALSO COULD NOT DETERMINE WHETHER THE DISBURSING AGENT RECEIVED OR SHOULD HAVE RECEIVED THE SUPPORTING DOCUMENTATION WHICH IDENTIFIED THE PAYEE. WE THEREFORE DENIED RELIEF UNLESS FURTHER EVIDENCE WAS PRESENTED. UPON RECONSIDERATION THE RELIEF REQUESTED IS GRANTED.

AS WE HAVE PREVIOUSLY STATED, IN THOSE INSTANCES WHERE A SUBORDINATE ACTUALLY DISBURSES THE FUNDS RATHER THAN THE DISBURSING OFFICER HIMSELF, WE WILL GRANT RELIEF UPON A SHOWING THAT THE DISBURSING OFFICER PROPERLY SUPERVISED HIS SUBORDINATES BY MAINTAINING AND POLICING AN ADEQUATE SYSTEM OF PROCEDURES AND CONTROLS TO AVOID ERRORS. SEE B-187180, SEPTEMBER 21, 1976.

THE ASSISTANT SECRETARY CONTENDS THAT BIA CANNOT HAVE A SINGLE PROCEDURE FOR IDENTIFICATION OF PAYEES "BUT MUST RELY ON THE EXPERTISE OF THE IIM (INDIVIDUAL INDIAN MONEY) CLERKS TO ESTABLISH SUCH IDENTIFICATION AS BEST THEY CAN ***," BECAUSE UNIFORM RECORDS IDENTIFYING PAYEES, OR INDIVIDUALS, DO NOT EXIST. BIA "MUST THEREFORE RELY UPON THE DDA (DEPUTY DISBURSING AGENT) AND THE IIM CLERKS TO ESTABLISH A SYSTEM OF CONTROL WHICH BEST MEETS THEIR NEEDS, GIVEN THE LACK OF AVAILABLE RECORDS FOR IDENTIFICATION." THE EXISTING SYSTEM "IS NOT FOOLPROOF, BUT IT DOES MINIMIZE ERRORS TO THE MAXIMUM EXTENT FEASIBLE."

WITHOUT AGREEING THAT THE SYSTEM NOW IN PLACE CANNOT BE IMPROVED, WE ARE CONVINCED THAT THIS PARTICULAR LOSS WAS NOT THE RESULT OF ANY SHORTCOMING IN THE SYSTEM ATTRIBUTABLE TO THE DISBURSING OFFICER. AS THE ASSISTANT SECRETARY POINTS OUT, THE TELLER WAS AWARE OF A DISCREPANCY BETWEEN THE BIRTHDATE ON FILE FOR ELIZABETH L. SMITH AND THE BIRTHDATE OF ELIZABETH L. SMITH MINKEY AND, AS A RESULT, SOUGHT CONFIRMATION WITHIN BIA THAT ELIZABETH L. SMITH MINKEY WAS THE PROPER RECIPIENT. BIRTHDATES ON RECORD WITH BIA FOR ACCOUNT HOLDERS ARE OFTEN NOT CORRECT, SINCE "QUITE A FEW" ARE OBTAINED AT PROBATE HEARINGS FROM HEIRS WHO ARE NOT SURE OF OTHER HEIRS'BIRTHDATES AND GIVE AN APPROXIMATE DATE.

THE TELLER, HAVING CHECKED WITH THE ENROLLMENT BRANCH, WHICH TOLD HER THAT "IT WAS THE SAME ELIZABETH" AND THAT THE BIRTHDATE ON RECORD WITH BIA WAS WRONG, AND APPARENTLY HAVING NO OTHER MEANS TO CHECK IDENTITY (BECAUSE ELIZABETH L. SMITH'S SOCIAL SECURITY NUMBER WAS NOT ON FILE WITH BIA) DID NOT ACT NEGLIGENTLY IN ISSUING THE CHECK TO ELIZABETH L. SMITH MINKEY.

CONCEDING THAT THE TELLER'S ACCEPTANCE OF THE ENROLLMENT BRANCH'S ADVICE - THAT THE BIRTHDATE ON RECORD WAS WRONG - WAS REASONABLE, WE CANNOT CONCLUDE THAT AN INADEQUATE SYSTEM OF CONTROLS WAS THE PROXIMATE CAUSE OF THE LOSS BECAUSE WE CANNOT IDENTIFY ANY IMPROVEMENT IN THE SYSTEM WHICH WOULD HAVE PREVENTED THIS PARTICULAR ERROR. THAT IS, THE ONLY INFORMATION WHICH BIA HAD ABOUT THE PROPER PAYEE WAS A NAME AND BIRTHDATE, AND THE AGENCY HAD GOOD REASON TO BELIEVE THAT THE BIRTHDATE WAS NOT RELIABLE. REQUIRING ADDITIONAL INFORMATION FROM ELIZABETH MINKEY WOULD THEREFORE NOT HAVE ENABLED BIA TO IDENTIFY HER AS THE WRONG PAYEE, BECAUSE BIA DID NOT HAVE AND COULD NOT GET FURTHER INFORMATION ABOUT ELIZABETH SMITH, SUCH AS A SOCIAL SECURITY NUMBER, AGAINST WHICH TO CHECK THE INFORMATION PROVIDED BY ELIZABETH MINKEY.

ACCORDINGLY, RELIEF IS HEREBY GRANTED TO MR. BARTLETT. THE SHORTAGE MAY BE RESTORED BY A CHARGE TO THE CURRENT APPROPRIATION FOR OPERATION OF INDIAN PROGRAMS, BUREAU OF INDIAN AFFAIRS.