B-205426 L/M, SEP 16, 1982, OFFICE OF GENERAL COUNSEL

B-205426 L/M, SEP 16, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. STEPHEN E. HIGGINS, DEPARTMENT OF THE TREASURY:

THIS IS IN RESPONSE TO YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION, B-205426, DATED FEBRUARY 17, 1982, WHERE WE HELD THAT SPECIAL AGENT STEPHEN NAVICKY OF YOUR AGENCY (ATF) COULD NOT BE RELIEVED UNDER 31 U.S.C. SEC. 82(A)(1) FOR THE LOSS OF $800 IN OFFICIAL FUNDS. WE ARE NOW OF THE VIEW THAT, FIRST, SPECIAL AGENT NAVICKY ACTED APPROPRIATELY IN THESE CIRCUMSTANCES AND, SECOND, THAT IT IS UNNECESSARY TO OBTAIN RELIEF FROM LIABILITY FOR HIM.

THE FACTS OF THE CASE APPEAR IN THE REPORT OF INVESTIGATION DATED NOVEMBER 14, 1980. ON NOVEMBER 7, 1980, SPECIAL AGENT DAVID SURH OF THE DRUG ENFORCEMENT ADMINISTRATION (DEA) WAS INTRODUCED TO AN INDIVIDUAL WHO OFFERED TO SELL HIM FIREARMS AND CONTROLLED SUBSTANCES. THE SUSPECT DESIRED TO COMPLETE A FIREARMS SALE BEFORE ARRANGING TRANSACTIONS OF CONTROLLED SUBSTANCES. THE PURCHASE PRICE OF THE FIREARMS WAS $1200 AND THE PARTIES AGREED UPON A SUBSEQUENT MEETING TIME. ON NOVEMBER 10, 1981, SPECIAL AGENT NAVICKY FORMALLY REQUESTED AND RECEIVED $1500 FROM YOUR AGENCY. AT 1:30 P.M. ON NOVEMBER 12, 1980, SPECIAL AGENT NAVICKY, ACCOMPANIED BY HIS SUPERIOR AND OTHER ATF AGENTS AS WELL AS MEMBERS OF THE LOCAL POLICE, BEGAN SURVEILLANCE OF DEA AGENTS FRANCES CINTRON AND DAVID SURH AS THEY ATTEMPTED TO PURCHASE THE FIREARMS. THE $1200 WAS GIVEN TO DEA SPECIAL AGENT CINTRON BY SPECIAL AGENT NAVICKY FOR THIS PURPOSE. DURING THE ATTEMPTED PURCHASE, SPECIAL AGENT CINTRON WAS ROBBED AT GUNPOINT. THE AMOUNT OF THE LOSS IS $800; $400 HAVING BEEN RECOVERED.

IN OUR PREVIOUS DECISION ON FEBRUARY 17, 1982, WE POINTED OUT THAT YOUR SUBMISSION HAD NOT PROVIDED ANY AUTHORITY OF SPECIAL AGENT NAVICKY TO TRANSFER ATF FUNDS IN HIS CUSTODY TO THE EMPLOYEES OF ANOTHER AGENCY. THEREFORE, WE DENIED RELIEF. YOU HAVE NOW SUPPLIED THAT AUTHORITY IN YOUR REQUEST FOR RECONSIDERATION. YOU STATE: "THE AUTHORITY FOR THE INVESTIGATION IS SET FORTH IN THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970, AS AMENDED, 21 U.S.C. SEC. 801 ET SEQ. (1976) AND THE GUN CONTROL ACT OF 1968, 18 U.S.C. SEC. 921 ET SEQ." THESE STATUTES PLACE FIREARMS DEALERS AND DISPENSERS OF CONTROLLED SUBSTANCES WITHIN JURISDICTION OF BOTH THE DEPARTMENT OF THE TREASURY AND THE DEPARTMENT OF JUSTICE. THESE AGENCIES HAVE AN AGREEMENT FOR JOINT ACTIVITIES AGAINST NARCOTICS AND FIREARMS VIOLATORS. SEE ALSO ATF ORDER 3210.7A, DATED DECEMBER 14, 1979, SETTING FORTH PROCEDURES FOR ATF/DEA OPERATIONS. THEREFORE, SPECIAL AGENT NAVICKY WAS NOT NEGLIGENT IN TRANSFERRING $1200 IN ATF FUNDS TO A DEA AGENT JUST BEFORE THE ATTEMPTED FIREARM PURCHASE.

YOU HAVE REQUESTED RECONSIDERATION IN LIGHT OF OUR DECISION B-204908, DATED MARCH 31, 1982, 61 COMP.GEN. . WE HELD THEREIN THAT DEA MAY RECORD A LOSS AS AN ADMINISTRATIVE EXPENSE WHEN THAT LOSS OCCURRED WHILE FUNDS WERE BEING USED FOR THE PURPOSE FOR WHICH THEY WERE ENTRUSTED, I.E., TO PURCHASE CONTROLLED SUBSTANCES FOR USE AS EVIDENCE. YOUR SUBMISSION STATES THAT YOU BELIEVE THE LOSS OF FUNDS BY SPECIAL AGENT NAVICKY FALLS WITHIN THE AMBIT OF B-204908 AND, THEREFORE, IS NOT A PHYSICAL LOSS WITHIN THE MEANING OF 31 U.S.C. SEC. 82(A)(1). WE AGREE.

OUR REVIEW OF THE FACTS UPON WHICH DECISION B-204908 IS BASED SHOWS THEM TO BE STRIKINGLY SIMILAR TO THE FACTS IN THIS CASE. AS WE STATED IN THAT DECISION, "IT IS APPARENTLY NECESSARY TO PUT CERTAIN FUNDS AT RISK IN THE COURSE OF OBTAINING EVIDENCE OF VIOLATIONS OF CONTROLLED SUBSTANCE LAWS." WE APPLY THAT SAME RATIONALE TO THE PRESENT CASE REGARDING THE PURCHASE OF EVIDENCE OF VIOLATIONS OF FEDERAL FIREARMS LAWS. THEREFORE, WE THINK IT APPROPRIATE TO CLEAR THE ACCOUNT AND RECORD THE LOST FUNDS AS A NECESSARY ADMINISTRATIVE EXPENSE OF YOUR AGENCY. THERE IS NO NEED TO SEEK RELIEF FROM THIS OFFICE UNDER 31 U.S.C. SEC. 82(A)(1) IN THESE CIRCUMSTANCES. B-205426, FEBRUARY 17, 1982, IS OVERRULED.

WE REACH THIS RESULT ON THE ASSUMPTION THAT ATF WILL FOLLOW THE PROCEDURES, AS IT HAS HERE, SET OUT IN PARAGRAPH 56 OF ITS ORDER 3210.7A (1976) REGARDING A DETERMINATION AS TO THE OFFICER'S RESPONSIBILITY FOR THE LOST FUNDS. IF THE AGENCY FINDS THE OFFICER TO HAVE ACTED NEGLIGENTLY, HE MUST, OF COURSE, BE HELD LIABLE EVEN IF THE LOSS WAS PURSUANT TO AN INVESTIGATION WITHIN THE AGENCY'S JURISDICTION. MOREOVER, AN AGENCY MUST STILL SEEK RELIEF UNDER 31 U.S.C. SEC. 82(A)(1) WHEN AN OFFICER LOSES FUNDS UNDER CIRCUMSTANCES UNRELATED TO CARRYING OUT THE PURPOSES FOR WHICH THE FUNDS WERE ENTRUSTED. SEE B-204908, MARCH 31, 1982, 61 COMP.GEN. .