B-177655, FEB 22, 1973, 52 COMP GEN 549

B-177655, FEB 22, 1973, 52 COMP GEN 549

BONDS - FIDELITY BONDS - OTHER THAN FEDERAL EMPLOYEES THE OBTAINING OF BONDS FOR EMPLOYEES OF STATE COURTS WHO PROCESS THE BONDING OF FEDERAL OFFENDERS DETAINED PURSUANT TO 18 U.S.C. 3041, AND FOR THE EMPLOYEES WHO HANDLE BAIL AND FINE MONEY FOR PART-TIME UNITED STATES MAGISTRATES IS NOT PRECLUDED BY SECTION 101(A) OF THE ACT OF JUNE 6, 1972, AS THE PROHIBITION AGAINST REQUIRING OR OBTAINING SURETY BONDS APPLIES ONLY TO CIVILIAN EMPLOYEES OR MILITARY PERSONNEL OF THE FEDERAL GOVERNMENT WHICH IS CHARGED WITH ASSUMING THE RISKS OF FIDELITY LOSSES. SINCE NEITHER THE STATE COURT EMPLOYEES NOR THE EMPLOYEES OF THE PART-TIME MAGISTRATES ARE WITHIN THE SCOPE OF THE ACT, THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS IS NOT PRECLUDED FROM DETERMINING TO BOND THE EMPLOYEES OR ASSUME THE RISKS OF FIDELITY LOSSES, AND IF BONDED THE COST OF BONDING STATE COURT EMPLOYEES IS PAYABLE UNDER 18 U.S.C. 3041, AND THE COST TO PART-TIME MAGISTRATES FOR BONDING THEIR EMPLOYEES IS A REIMBURSABLE EXPENSE.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEBRUARY 22, 1973:

YOUR LETTER REQUESTING OUR ADVICE CONCERNING THE BONDING OF CERTAIN EMPLOYEES OF STATE COURTS AND EMPLOYEES OF PART-TIME UNITED STATES MAGISTRATES HAS BEEN RECEIVED.

YOU STATE THAT IT HAS BEEN PROPOSED THAT A FEDERAL COURT DESIGNATE ONE OR MORE EMPLOYEES OF A STATE COURT (WHICH COURTS, UNDER THE PROVISIONS OF 18 U.S.C. 3041, HAVE AUTHORITY TO PERFORM CERTAIN FUNCTIONS IN CONNECTION WITH THE ARREST AND DETENTION OF FEDERAL OFFENDERS) AS DEPUTY CLERKS FOR THE PURPOSE OF COMPLETING BOND PROCESS FOR SUCH OFFENDERS. SUCH STATE COURT EMPLOYEES WOULD OCCASIONALLY HAVE IN THEIR POSSESSION SUBSTANTIAL AMOUNTS OF CASH BELONGING TO THE FEDERAL DISTRICT COURT, PENDING PROMPT FORWARDING THEREOF TO THE FEDERAL COURT. HENCE, IT HAS BEEN SUGGESTED THAT THEY SHOULD BE BONDED. SINCE SUCH INDIVIDUALS ARE NOT EMPLOYEES OF THE FEDERAL COURT, THE QUESTION HAS BEEN RAISED AS TO THE APPLICABILITY THERETO OF PUBLIC LAW 92-310, 31 U.S.C. 1201, AND, IF SAID STATUTE IS NOT APPLICABLE, WHETHER THERE IS AUTHORITY FOR YOUR OFFICE TO OBTAIN BONDS FOR SUCH STATE COURT EMPLOYEES.

A SIMILAR QUESTION HAS BEEN RAISED CONCERNING EMPLOYEES OF PART-TIME UNITED STATES MAGISTRATES. SUCH MAGISTRATES ARE AUTHORIZED REIMBURSEMENT OF THEIR EXPENSES, INCLUDING COSTS OF SECRETARIAL AND CLERICAL ASSISTANCE. THESE PART-TIME MAGISTRATES RECEIVE BAIL AND FINE MONEYS, MOST OF WHICH MUST ACTUALLY BE HANDLED BY THEIR EMPLOYEES, WHO ARE NOT FEDERAL EMPLOYEES. YOU STATE THAT YOUR OFFICE HAD PREVIOUSLY CONCLUDED THAT THE EMPLOYEES OF PART-TIME UNITED STATES MAGISTRATES COULD NOT BE BONDED UNDER THE BLANKET POSITION BONDS AUTHORIZED BY 6 U.S.C. 14 PRIOR TO ITS REPEAL BY SECTION 203 OF PUBLIC LAW 92-310, 6 U.S.C. 6, BUT THAT THE COSTS OF A BOND PROCURED FOR SUCH EMPLOYEES BY A PART-TIME UNITED STATES MAGISTRATE IN ACCORDANCE WITH REGULATIONS WOULD BE AN ALLOWABLE EXPENSE. YOU INQUIRE AS TO WHETHER SUCH EMPLOYEES ARE COVERED BY PUBLIC LAW 92-310 AND, IF NOT, WHETHER YOU MAY CONTINUE TO REIMBURSE PART-TIME MAGISTRATES FOR THEIR EXPENSES OF BONDING THESE INDIVIDUALS.

SECTION 101(A) OF THE ACT OF JUNE 6, 1972, PUBLIC LAW 92-310, 86 STAT. 201, 31 U.S.C. 1201, PROVIDES AS FOLLOWS:

NO AGENCY OF THE FEDERAL GOVERNMENT MAY REQUIRE OR OBTAIN SURETY BONDS FOR ITS CIVILIAN EMPLOYEES OR MILITARY PERSONNEL IN CONNECTION WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

THE JUDICIAL BRANCH OF THE GOVERNMENT IS INCLUDED WITHIN THE DEFINITION OF THE TERM "AGENCY OF THE FEDERAL GOVERNMENT" BY SECTION 101(C) OF THE ACT, 31 U.S.C. 1201. ALSO, SECTION 102(A) OF THAT ACT, 31 U.S.C. 1202, WHICH PROVIDES FOR THE ADJUSTMENT OF UNCOLLECTIBLE LOSSES TO THE UNITED STATES DUE TO THE FAULT OR NEGLIGENCE OF AN ACCOUNTABLE OFFICER OR HIS AGENT, PROVIDES:

(A) WHENEVER -

(1) IT IS NECESSARY TO RESTORE OR OTHERWISE ADJUST THE ACCOUNT OF ANY ACCOUNTABLE OFFICER OR HIS AGENT FOR ANY LOSS TO THE UNITED STATES DUE TO THE FAULT OR NEGLIGENCE OF SUCH OFFICER OR AGENT, AND

(2) THE HEAD OF THE AGENCY OF THE FEDERAL GOVERNMENT CONCERNED DETERMINES THAT THE AMOUNT OF THE LOSS IS UNCOLLECTABLE, SUCH AMOUNT SHALL BE CHARGED TO THE APPROPRIATION OR FUND AVAILABLE FOR THE EXPENSES OF THE ACCOUNTABLE FUNCTION AT THE TIME THE RESTORATION OR ADJUSTMENT IS MADE. SUCH RESTORATION OR ADJUSTMENT SHALL NOT AFFECT THE PERSONAL FINANCIAL LIABILITY OF SUCH OFFICER OR AGENT ON ACCOUNT OF SUCH LOSS.

BY ITS OWN TERMS, THE PROHIBITION AGAINST REQUIRING OR OBTAINING SURETY BONDS CONTAINED IN SECTION 101(A) APPLIES ONLY TO "CIVILIAN EMPLOYEES OR MILITARY PERSONNEL" OF THE FEDERAL GOVERNMENT. LIKEWISE, WHILE IT DOES NOT EXPRESSLY SO STATE, IT IS APPARENT FROM THE CONTEXT AND TENOR OF THE ACT AS A WHOLE THAT SECTION 102(A) ALSO REFERS ONLY TO CIVILIAN EMPLOYEES OR MILITARY PERSONNEL OF THE FEDERAL GOVERNMENT. THIS INTERPRETATION IS CONFIRMED BY S. REPT. NO. 92-790, 92D CONGRESS, 2D SESSION, ON H.R. 13150, WHICH WAS SUBSEQUENTLY ENACTED AS PUBLIC LAW 92-310, WHICH STATES ON PAGE 1 THEREOF THAT:

THE PURPOSE OF H.R. 13150 IS TO PROVIDE THAT THE FEDERAL GOVERNMENT SHALL ASSUME THE RISKS OF FIDELITY LOSS. IT THUS ESTABLISHES THE POLICY THAT NO AGENCY OF ANY BRANCH OF THE FEDERAL GOVERNMENT SHALL OBTAIN SURETY BONDS FOR ITS CIVILIAN OR MILITARY PERSONNEL WHO HAVE THE RESPONSIBILITY FOR SUBSTANTIAL SUMS OF MONEY IN CONNECTION WITH THEIR OFFICIAL DUTIES. THE BILL REPEALS OR AMENDS EXISTING LAW REQUIRING FEDERAL AGENCIES TO OBTAIN SURETY BONDS FOR THESE CIVILIAN AND MILITARY PERSONNEL. IT PROVIDES THAT THE AMOUNT OF ANY LOSS DUE TO THE FAULT OR NEGLIGENCE OF A FEDERAL EMPLOYEE SHALL BE CHARGED TO THE AGENCY'S APPROPRIATION OR OTHER AVAILABLE APPROPRIATE FUND.

HENCE, SINCE NEITHER THE EMPLOYEES OF THE STATE COURTS NOR THE EMPLOYEES OF THE PART-TIME UNITED STATES MAGISTRATES ARE EMPLOYEES OF THE FEDERAL GOVERNMENT, PUBLIC LAW 92-310 DOES NOT PROHIBIT REQUIRING OR OBTAINING SURETY BONDS FOR SUCH PERSONS IF IT IS DETERMINED BY YOUR OFFICE THAT THEY SHOULD BE BONDED, NOR DOES IT AUTHORIZE OR PRECLUDE THE ASSUMPTION BY YOUR OFFICE OF THE RISKS OF FIDELITY LOSSES OCCASIONED BY SUCH PERSONS. OTHER WORDS THE PERSONS IN QUESTION ARE NOT ENCOMPASSED WITHIN THE SCOPE OF PUBLIC LAW 92-310.

WITH RESPECT TO THE QUESTION AS TO WHETHER YOUR OFFICE MAY PAY FOR BONDS FOR THE PERSONS IN QUESTION, 18 U.S.C. 3041 PROVIDES THAT THE FUNCTIONS TO BE PERFORMED THEREUNDER FOR THE GOVERNMENT BY THE STATE COURTS SHALL BE "AT THE EXPENSE OF THE UNITED STATES." IF BONDS ARE REQUIRED FROM THE EMPLOYEES OF SUCH STATE COURTS BY YOUR OFFICE, THE COST OF SUCH BONDS WOULD CLEARLY BE WITHIN THE MEANING OF "AT THE EXPENSE OF THE UNITED STATES" AS THAT TERM IS USED IN 18 U.S.C. 3041, AND MAY BE PAID BY YOUR OFFICE AS A PART OF SUCH "EXPENSE." INSOFAR AS THE EMPLOYEES OF THE PART- TIME UNITED STATES MAGISTRATES ARE CONCERNED, IF YOUR OFFICE DETERMINES THAT SUCH EMPLOYEES SHOULD BE BONDED, WE SEE NO VALID REASON WHY THE COST OF SUCH BONDS SHOULD NOT CONTINUE TO BE CONSIDERED AS A REIMBURSABLE EXPENSE OF SUCH MAGISTRATES.