B-170012, MAY 3, 1971

B-170012, MAY 3, 1971

RELIEF OF CASHIER - PROOF OF NEGLIGENCE REAFFIRMING PRIOR DECISION HOLDING MRS. BEATRICE B. PENDERGRASS, CASHIER AT THE NATIONAL COMMUNICABLE DISEASE CENTER, LAWRENCEVILLE, GA., LIABLE FOR THE LOSS OF $250 RECEIVED BY HER FOR SAFEKEEPING IN THE COURSE OF HER DUTIES. THAT MRS. PENDERGRASS WAS NOT DIRECTED TO ACCEPT CUSTODY OF THE $250 FROM ANOTHER EMPLOYEE ALTHOUGH THE LATTER HAD BEEN DIRECTED TO TURN THAT AMOUNT IN, IS OF NO WEIGHT AGAINST THE USUAL RULE THAT IF THE REBUTTABLE PRESUMPTION OF NEGLIGENCE IS NOT OVERCOME, THE ACCOUNTABLE OFFICER WILL BE HELD LIABLE FOR LOSS OF FUNDS.

TO MR. SECRETARY:

BY LETTER TO THE GENERAL COUNSEL OF OUR OFFICE DATED JANUARY 26, 1971, MR. JAMES B. CARDWELL, ASSISTANT SECRETARY, COMPTROLLER, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), RECOMMENDED ON YOUR BEHALF THAT MRS. BEATRICE B. PENDERGRASS, CLASS "B" CASHIER, NATIONAL COMMUNICABLE DIESEASE CENTER (NCDC), LAWRENCEVILLE, GEORGIA, HEALTH SERVICES AND MENTAL HEALTH ADMINISTRATION, HEW, BE GRANTED RELIEF FOR THE LOSS OF $250, FOR WHICH OUR DECISION OF AUGUST 11, 1970, B-170012, HELD HER LIABLE. MRS. PENDERGRASS HAD REQUESTED THIS OFFICE FOR A RECONSIDERATION OF THAT DECISION BY LETTER DATED SEPTEMBER 30, 1970, FORWARDED TO US ON OCTOBER 14, 1970.

THE CIRCUMSTANCES SURROUNDING THE SHORTAGE, AS ORIGINALLY REPORTED TO US, ARE SET OUT IN DETAIL IN OUR DECISION OF AUGUST 11, 1970, SUPRA, AND NEED NOT BE REPEATED HERE.

IN SUMMARY, THE RECORD ON WHICH WE RELIED IN REACHING OUR DECISION WAS AS FOLLOWS:

THAT MRS. PENDERGRASS, IN THE COURSE OF HER DUTIES, RECEIVED FOR SAFEKEEPING $250 IN FEDERAL FUNDS WHICH WERE LOST WHILE IN HER CUSTODY WITHOUT ANY EXPLANATION AS TO HOW THE LOSS OCCURRED. NO AFFIRMATIVE EVIDENCE THAT THE LOSS OCCURRED WITHOUT HER NEGLIGENCE WAS PRESENTED.

OUR DECISION OF AUGUST 11, 1970, HELD MRS. PENDERGRASS LIABLE FOR THE LOSS IN ACCORD WITH OUR LONG-HELD POSITION THAT WHERE AN ACCOUNTABLE OFFICER SUFFERS AN UNEXPLAINED LOSS OF FEDERAL FUNDS IN THE COURSE OF EMPLOYMENT, THERE IS A REBUTTABLE PRESUMPTION THAT THE ACCOUNTABLE OFFICER WAS NEGLIGENT, AND IF THIS PRESUMPTION IS NOT OVERCOME, WE CANNOT CONCUR WITH THE REQUEST OF THE HEAD OF THE AGENCY, OR HIS AUTHORIZED DELEGATE, IN RELIEVING FROM LIABILITY UNDER 31 U.S.C. 82A-1, 48 COMP. GEN. 566 (1969).

31 U.S.C. 82A-1 PROVIDES IN PERTINENT PART:

"THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED, AFTER CONSIDERATION OF THE PERTINENT FINDINGS AND IF IN CONCURRENCE WITH THE DETERMINATIONS AND RECOMMENDATIONS OF THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED, TO RELIEVE ANY DISBURSING OR OTHER ACCOUNTABLE OFFICER OR AGENT OR FORMER DISBURSING OR ACCOUNTABLE OFFICER OR AGENCY OF ANY SUCH DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT CHARGED WITH RESPONSIBILITY ON ACCOUNT OF PHYSICAL LOSS OR DEFICIENCY OF GOVERNMENT FUNDS, VOUCHERS, RECORDS, CHECKS, SECURITIES, OR PAPERS IN HIS CHARGE, IF THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT DETERMINES (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THAT SUCH LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF SUCH OFFICER OR AGENT; AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. *** "

THE INFORMATION NOW PRESENTED BY THE LETTER OF JANUARY 26, 1971, IS TO THE EFFECT THAT MRS. PENDERGRASS WAS NOT DIRECTED TO ACCEPT CUSTODY OF THE $250 FROM MR. TREVINO ALTHOUGH HE HAD BEEN DIRECTED BY ADMINISTRATIVE OFFICIALS OF THE PROGRAM BY WHICH HE WAS EMPLOYED TO TURN IN HIS PASSPORT, THE $250 AND TRAVEL ADVANCE CHECK FOR SAFEKEEPING CUSTODY TO HER.

HOWEVER, THE FACT THAT MRS. PENDERGRASS DID NOT HAVE SPECIFIC DIRECTION FROM SUPERVISORY PERSONNEL TO ACCEPT THE FUNDS IN QUESTION, LIKE THE FACT THAT HER POSITION DESCRIPTION DID NOT CONTAIN SPECIFICALLY ENUMERATED DUTIES AS A COLLECTION OFFICER, DOES NOT CHANGE THE FACT THAT THESE WERE FEDERAL FUNDS FOR WHICH SHE WAS ACCOUNTABLE. HER POSITION DESCRIPTION INCLUDED THE DUTIES OF A CLASS "B" CASHIER, THE DUTIES AND RESPONSIBILITIES FOR WHICH ARE SET FORTH IN THE "MANUAL OF PROCEDURES AND INSTRUCTIONS FOR CASHIERS" ISSUED BY THE DEPARTMENT OF THE TREASURY.

THE CONTENTION OF MRS. PENDERGRASS THAT THESE WERE PERSONAL FUNDS OF MR. TREVINO FOR WHICH SHE IS NOT ACCOUNTABLE, RATHER THAN PUBLIC FUNDS, IS WITHOUT MERIT. EVEN IF IT BE CONCEDED THAT TRAVEL ADVANCE FUNDS LOSE THEIR IDENTITY AS PUBLIC FUNDS WHEN ADVANCED TO A FEDERAL EMPLOYEE, SUCH FUNDS WHEN RETURNED TO THE FEDERAL GOVERNMENT BY SUCH EMPLOYEE PURSUANT TO OFFICIAL REQUEST OR DIRECTION WOULD AGAIN BECOME PUBLIC FUNDS.

AN ACCOUNTABLE OFFICER IS A CUSTODIAN OF GOVERNMENT FUNDS. SEE B 155149, OCTOBER 21, 1964; ALSO B-151156, DECEMBER 30, 1963. WE HAVE STATED BEFORE "THE TERM 'ACCOUNTABLE OFFICER' REFERS TO ANY GOVERNMENT PERSONNEL WHO ARE PECUNIARILY RESPONSIBLE TO THE GOVERNMENT FOR THEIR OFFICIAL ACTIVITIES. *** " B-144467, DECEMBER 19, 1960. THE LEGISLATIVE HISTORY OF 31 U.S.C. 82A-1 STATES THAT AGENTS OF THE GOVERNMENT WHO ARE "FULLY RESPONSIBLE FOR FUNDS *** ENTRUSTED TO THEIR CHARGE", S. REPT. NO. 379, 80TH CONG., 1ST SESS., P. 2, ARE ENTITLED TO THE RELIEF PROVISIONS OF THE STATUTE. THE TERM "ENTRUSTED" INDICATES THE CUSTODIAL NATURE OF AN ACCOUNTABLE OFFICER'S RELATIONSHIP TO THE GOVERNMENT.

THE OTHER TWO REASONS GIVEN IN YOUR LETTER OF JANUARY 26, 1971, FOR THE RELIEF OF MRS. PENDERGRASS - THAT THERE WAS NO EVIDENCE OF FAULT OR NEGLIGENCE ON HER PART AND THAT SHE HAD NO CONTROL OVER THE SECURITY PROVIDED AT THE FACILITY WHERE THE SAFE WAS LOCATED - WERE CONSIDERED AND DISCUSSED IN OUR PRIOR DECISION ON THIS CASE.