B-190506 November 28, 1977

B-190506 November 28, 1977

The Honorable Leonel J. Castillo Commissioner of Immigration and Naturalization Service Department of Justice

Dear Mr. Castillo:

By letter dated October 14, 1977, you requested that relief from liability be granted under the provisions of 31 U.S.C. Sec. 82a-1 to Immigration Examiner Ethel M. Fitzgibbons for a loss of $2,000 of Government funds for which she was accountable.

The record transmitted indicates that on January 11, 1977, at about 2 p.m., in the course of her duties, Ms. Fitzgibbons accepted custody of eight $1,000 U.S. Treasury bonds which were tendered as collateral on four $2,000 immigration bonds. She attached two Treasury bonds to each of four slips of paper containing the names of the persons to be covered by the immigration bonds and placed the bonds in the office Remington Rand safe. The safe was kept unlocked and opened during the day and, at the time of the loss, the office where the safe was located contained a reading room and was open to the public. Ms. Fitzgibbons then took the bond papers to another room to have files created and the forms completed. Since at closing time, the papers had not yet been returned, Ms. Fitzgibbons asked the person presenting them to return the following day to sign the forms.

During that afternoon, Mrs. Elizabeth Cuddy, the secretary to the Assistant District Director, had reason to use the Remington Rand safe, and noticed the protruding edges of some Treasury bonds which had apparently been placed behind her locked cash box for safekeeping. She picked up three groups of bonds and placed these inside a folder within the safe in order to conceal their presence from the public or other persons having access to the room in which the safe was located. She also saw a fourth slip of paper, without bonds attached, containing a name similar to that on the slips attached to the three groups of bonds, which she replaced in the safe.

Mrs. Cuddy locked the safe at about 4:15 p.m. that day and unlocked it the following morning between 8 a.m. and 8:30 a.m. At about 10 a.m. Ms. Fitzgibbons went to the safe to get the bonds. She questioned Mrs. Cuddy about the location of the bonds and was told that Mrs. Cuddy had placed them in the folder. When Ms. Fitzgibbons checked the folder, she found only three sets of two $1,000 bonds.

In a letter dated March 18, 1977; to the District Director for the Immigration and Naturalization Service, the Federal Bureau of Investigation advised that no suspects were developed in their investigation of the loss of the Treasury bonds and that they were placing the case in a closed status.

According to a memorandum by the District Director fo the San Francisco division of the Immigration and Naturalization Service, the procedures in effect for the security and safekeeping of collateral or cash in connection with the posting of bonds requires officers processing bond applications to complete execution of certain form (paticularyly Form I- 352) and present these forms along with the collateral directly to Mrs. Cuddy, who accepts collateral, signs a receipt for it, and hands the receipt (Form I-305) to the obligor. It appears that the Immigration Examiners are not supposed to accept custody of the collateral bonds until Form I-352 is completed. Mrs. Cuddy then places collateral in a locked cash box for which she has the only key. The cash box is then place by Mrs. Cuddy in the Remington Rand safe which is in close proximity to her desk. Mrs. Cuddy and Supervisor Immigration Examiner Hoge are the only persons knowing the combination of the Remington Rand safe and are the only persons authorized to place collateral in the safe or to remove collateral from it.

In his memorandum dated May 11, 1977, the District Director, San Francisco, contends that although Ms. Fitzgibbons did not follow these instructions, her actions did not constitute that degree of carelessness or negligence to warrant action requiring her to make reimbursement. He also contends that "the location of the safe, its limited access, and faith in fellow employees would have reasonably prompted a prudent person to expect that the two Treasury notes were safely stored overnight."

An accountable officer of the Government is an insurer of the public funds in his custody and is excusable only for loss due to acts of God or the public enemy. United State v. Thomas, 15 Wall. 337 (1872). This liability is unaffected by lack of proof of negligence on the part of the accountable officer, or the absence of evidence that he misappropriated the funds or that the loss resulted from his fault. United States v. Prescott, 3 How. 578 (1845); Smythe v. United States, 188 U.S. 156 (1903); 48 Comp. Gen. 566 (1969).

However, relief may be granted under 31 U.S.C. Sec. 82a-1 if: (a) it is determined by the head of the department or independent establishment concerned (1) that the loss or deficiency occurred while the officer was acting in the discharge of his official duties, or that it occorred by reason of the act or omission of a subordinate of the officer or agent; and (2) that the loss or deficiency occurred without fault or negligence on the part of the officer; and (b) the determinations by the department head are concurred inby the General Accounting Office.

We have repeatedly held that when money disappears for an unexplained reason, the disappearance itself is sufficient to raise a presumption of negligence. Positive or affirmative evidence of negligence is not required to raise this presumption. The accountable officer is liable until he sustains the burden of proving lack of negligence. 54 Comp. Gen. 112 (1974); 48 Comp. Gen. 566 (1969); B-170012 (August 11, 1970).

In this case it appears that not only has Ms. Fitzgibbons failed to sustain her burden of showing her lack of negligence, but there is affirmative evidence that she was negligent and that her negligence, inlcuding her failure to follow required procedures, was a aproximate cause of the loss. Since the proper forms had not been completed, Ms. Fitzgibbons should not have accepted the bonds in the first place. Had the required procedures been given by Ms. Fitzgibbons to Mrs. Cuddy, who would have placed them in the locked cash box to which she had sole access. Following these procedures, the possibility of theft or unauthorized removal would have been much less likely. See B-183559 (August 28, 1975); B-156442 (November 3, 1967).

Instead, Ms. Fitzgibbons placed the bonds directly in a safe which remained open and unlocked during the day, and was located in a room to which the public had access. The bonds were apparently placed in the safe at a point where they could be seen by persons close to the safe. Ms. Fitzgibbons' reliance on the location of the safe near Mrs. Cuddy's desk and her "faith in her fellow employees"--some of whom may in the course of their employment have had reason to use the safe--does not support an agency finding of lack of negligence. We note that the Regional Counsel himself concluded in a February 15, 1977, memorandum to the Regional Commissioner that:

"The loss of the claimant's property, the two $1,000 Treasury Bonds, was occasioned by the negligence of an employee [[Ms. Fitzgibbons] of this Service in not using a proper degree of care to safeguard the claimant's property after having accepted the same as a bailee." (Emphasis supplied).

We cannot grant relief if there is any evidence of negligence; the concept of relative negligence is not recognized in the above-cited relief statute.

Accordingly, Ms. Fitzgibbons' failure to follow the required procedures was unwarranted, and violated the high standard of care which she owed as guardian of these funds.

Since we do not concur in the administrative determination that the loss occurred without fault or negligence on her part, we cannot grant Ms. Fitzgibbons relief under the provisions of 31 U.S.C. Sec. 82a-1.

Sincerely yours,

Paul G. Dembling General Counsel