B-194782 L/M, AUG 13, 1979

B-194782 L/M, AUG 13, 1979

PRECIS-UNAVAILABLE

P. M. BALDINO, OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY:

THIS IS IN RESPONSE TO YOUR REQUEST (REFERENCE DAEN-RMF-A), FOR RELIEF FROM LIABILITY FOR THE LOSS OF $10,500 IN PUBLIC FUNDS ON BEHALF OF 3 EMPLOYEES OF THE ARMY CORP OF ENGINEERS. THE LOST FUNDS, COMPRISING RECREATIONAL FEES AND CHANGE FUNDS, WERE STOLEN FROM THE RATHBURN LAKE PROJECT, CENTERVILLE, IOWA. THE ARMY CORPS OF ENGINEERS WAS IN CHARGE OF THE PROJECT. PURSUANT TO 31 U.S.C. SEC. 95A (1976), THE ASSISTANT SECRETARY OF THE ARMY ASKED THAT L. W. MASCHINO, DISBURSING OFFICER AT THE TIME OF THE LOSS (THE LOSS OF FUNDS HAS BEEN ASSUMED IN THE BALANCE OF PRESENT DISBURSING OFFICER D. L. SWANN), ROBERT L. HIATT, RATHBURN PROJECT MANAGER AND THOMAS P. LONG, RECREATION FEE CASHIER, EACH BE RELIEVED OF PECUNIARY RESPONSIBILITY FOR THE LOSS.

UNDER 31 U.S.C. SEC. 95A, THE GENERAL ACCOUNTING OFFICE (GAO) HAS AUTHORITY TO GRANT A DISBURSING OFFICER OF A BRANCH OF THE ARMED SERVICES RELIEF FROM LIABILITY FOR PHYSICAL LOSS OR DEFICIENCY OF FUNDS. AS A PREREQUISITE TO GRANTING SUCH RELIEF, THE SECRETARY OF THE DEPARTMENT CONCERNED, OR HIS AUTHORIZED DESIGNEE, MUST DETERMINE THAT (1) THE LOSS OCCURRED WHILE THE OFFICER WAS ACTING IN THE LINE OF DUTY AND (2) THAT THE LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON HIS PART. A DETERMINATION BY THE SECRETARY THAT THESE TWO CONDITIONS ARE PRESENT IS FINAL AND CONCLUSIVE UPON THE GENERAL ACCOUNTING OFFICE. 31 U.S.C. SEC. 95A (1976). THE APPROPRIATE DETERMINATIONS HAVE BEEN MADE WITH RESPECT TO MR. MASCHINO, THE DISBURSING OFFICER IN THIS CASE. THEREFORE, RELIEF IS GRANTED IN ACCORDANCE WITH 31 U.S.C. SEC. 95A.

IN YOUR INITIAL LETTER TO US, YOU ALSO REQUESTED THAT MR. HIATT AND MR. LONG BE RELIEVED FROM LIABILITY BY OUR OFFICE UNDER SECTION 95A. SECTION 95A IS LIMITED TO THE RELIEF OF DISBURSING OFFICERS. SINCE NEITHER MR. HIATT NOR MR. LONG ARE DISBURSING OFFICERS, RELIEF CANNOT BE GRANTED THEM UNDER 31 U.S.C. SEC. 95A. RELIEF FOR PHYSICAL LOSSES FOR OTHER TYPES OF ACCOUNTABLE OFFICERS IS AUTHORIZED UNDER THE PROVISION OF 31 U.S.C. SEC. 82A-1 (1976) PROVIDED THAT THE HEAD OF THE DEPARTMENT CONCERNED DETERMINES THAT (1) THE LOSS OR DEFICIENCY OCCURRED WHILE THE ACCOUNTABLE OFFICER WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES AND (2) THAT THE LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THAT OFFICER, AND THAT THIS OFFICE CONCURS IN THOSE DETERMINATIONS.

IN THE CURRENT CASE, IT DOES NOT APPEAR THAT MR. HIATT, AS PROJECT MANAGER, IS AN ACCOUNTABLE OFFICER. ORDINARILY, AN ACCOUNTABLE OFFICER IS A PERSON CHARGED WITH SAFEKEEPING GOVERNMENT FUNDS AND AN ADMINISTRATIVE OFFICER ALTHOUGH HE MAY SUPERVISE AN ACCOUNTABLE OFFICER IS NOT HIMSELF ACCOUNTABLE FOR LOSSES BY THE ACCOUNTABLE OFFICER. AN AGENCY MAY PROVIDE BY REGULATION FOR SOME ACCOUNTABILITY FOR ADMINISTRATIVE OFFICERS WHOSE LACK OF SUPERVISION OR ERRORS IN JUDGMENT CAUSE LOSSES IN FUNDS BY THE ACCOUNTABLE OFFICER. AS FOR MR. LONG, WE HAVE NOT RECEIVED THE REQUIRED DETERMINATIONS BY THE HEAD OF THE AGENCY OR HIS AUTHORIZED DESIGNEE. ACCORDINGLY, WE MUST DENY RELIEF AT THIS TIME.

SHOULD THE PROPER DETERMINATIONS AND A NEW REQUEST FOR RELIEF BE MADE, THE GAO MUST CONCUR WITH THE DEPARTMENT HEAD'S FINDINGS BEFORE RELIEF MAY BE GRANTED. TO FACILITATE OUR REVIEW OF THE CIRCUMSTANCES OF THE THEFT, WE WOULD APPRECIATE ANY INVESTIGATION REPORTS BY LAW ENFORCEMENT AUTHORITIES CONCERNING THE DETAILS OF THE THEFT, INCLUDING THE FBI AND SHERIFF'S REPORTS MENTIONED IN THE PAPERS ALREADY SUBMITTED. WE NOTE THAT THE REPORT OF THE CORPS' INVESTIGATING OFFICER, ENCLOSED WITH YOUR LETTER, FOUND BOTH MR. HIATT AND MR. LONG NEGLIGENT IN THE SAFEGUARDING OF THE FUNDS. SINCE RELIEF CANNOT BE GRANTED TO AN ACCOUNTABLE OFFICER WHOSE NEGLIGENCE CAUSED THE LOSS, THE INVESTIGATIVE OFFICER'S CONCLUSIONS SHOULD BE SPECIFICALLY ADDRESSED IN ANY SUBSEQUENT REQUEST FOR RELIEF.