B-192276, AUG 14, 1978

B-192276, AUG 14, 1978

PRECIS-UNAVAILABLE

PAUL H. TAYLOR, DEPARTMENT OF THE TREASURY:

BY LETTER OF JUNE 21, 1978, YOU REQUESTED THAT RELIEF BE GRANTED, PURSUANT TO 31 U.S.C. SEC. 82A-1, IN THE AMOUNT OF $530 TO CASHIER CHARLES R. SCHMITT AND SPECIAL AGENT DOUGLAS C. GREY TO COVER THE LOSS THAT OCCURRED WHEN THE FUNDS WERE STOLEN FROM SPECIAL AGENT GREY.

THE RECORD SUBMITTED INDICATES THAT MR. SCHMITT, DESIGNATED CASHIER FOR AN IMPREST FUND ESTABLISHED TO COVER EXPENDITURES FOR INVESTIGATIVE PURPOSES IN THE DISTRICT OFFICE, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, SAN FRANCISCO, CALIFORNIA, ADVANCED $650 TO AGENT GREY TO BE USED FOR THE PURCHASE OF EVIDENCE IN AN UNDERCOVER INVESTIGATION RELATING TO A FIREARMS MATTER. AFTER RECEIVING THE $650, GREY GAVE $610 TO ONE RONALD JAY FITZ, AN INFORMANT WHO HAD BEEN USED ON NUMEROUS PRIOR OCCASIONS BY LOCAL AND FEDERAL NARCOTICS OFFICERS. IT HAD BEEN PREVIOUSLY ARRANGED THAT FITZ WAS TO PURCHASE TWO MACHINE GUNS AND SOME GRENADES FROM AN INDIVIDUAL WHO FITZ CLAIMED WAS IN POSSESSION OF THESE ITEMS. THE FIRST TWO MEETINGS BETWEEN THE SELLER AND FITZ DID NOT RESULT IN A PURCHASE - THE FIRST BECAUSE THE SELLER DID NOT THINK FITZ WOULD HAVE THE REQUIRED MONEY, AND THE SECOND BECAUSE THE SELLER DID NOT SHOW UP. ON BOTH OCCASIONS, FITZ RETURNED THE $610 TO SPECIAL AGENT GREY. DESPITE VEHICLE AND AIR SURVEILLANCE, THE THIRD TIME FITZ RECEIVED THE $610 TO PURCHASE THE WEAPONS, HE ABSCONDED WITH IT AND A CAR PROVIDED TO HIM BY AGENT GREY. HE WAS SUBSEQUENTLY ARRESTED AND WAS FOUND TO HAVE $80 WHICH WAS IDENTIFIABLE AS PART OF THE $610 GIVEN HIM BY GREY. GREY HAD EXPENDED $20 ON THE INVESTIGATION AND WAS ALSO IN POSSESSION OF $20, MAKING THE NET LOSS $530.

WITH RESPECT TO CASHIER SCHMITT, YOU STATED THAT AN INDEPENDENT REVIEW IN THE DEPARTMENT OF THE TREASURY, FISCAL SERVICE OFFICE, DETERMINED THAT THE LOSS OCCURRED WHILE HE WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES AND THROUGH NO FAULT OR NEGLIGENCE ON HIS PART. YOU REQUESTED THAT WE CONCUR IN THESE FINDINGS AND PROVIDE RELIEF TO CASHIER SCHMITT AS AUTHORIZED BY 31 U.S.C. SEC. 82A-1.

ALL STANDARD PROCEDURES OF THE DEPARTMENT IN SUCH CASES WERE TAKEN BY CASHIER SCHMITT. HE WAS GRANTED AUTHORITY TO MAINTAIN THE FUND AND TO TRANSMIT FUNDS TO INVESTIGATIVE PERSONNEL WHO IN TURN WERE REQUIRED TO ACKNOWLEDGE THE ADVANCE OF THE FUNDS AND THEIR RESULTING LIABILITY TO THE CASHIER UNTIL EVIDENCE OF DISBURSEMENT OR RETURN OF ANY UNDISBURSED BALANCE OR THE FULL AMOUNT IS SUBMITTED. IN THIS CASE, HE APPARENTLY TOOK THE PROPER STEPS IN HAVING SPECIAL AGENT GREY ACKNOWLEDGE THE ADVANCE OF THE FUNDS THROUGH A DRAW CHECK AND LIABILITY FOR THEM. AT THE TIME OF THE LOSS, THE FUNDS WERE PROPERLY IN THE CUSTODY OF SPECIAL AGENT GREY. IS, THEREFORE, CLEAR THAT MR. SCHMITT WAS NOT NEGLIGENT AND THAT THE LOSS TOOK PLACE WHILE HE WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES. HE IS HEREBY RELIEVED OF LIABILITY.

YOU ALSO REQUESTED US TO GRANT RELIEF UNDER 31 U.S.C. SEC. 82A-1 TO SPECIAL AGENT GREY, WHO WAS ACCOUNTABLE FOR THE FUNDS, AND TO ALLOW THE LOSS TO BE CLEARED BY A CHARGE TO THE SALARIES AND EXPENSES APPROPRIATION OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS.

THE RECORD INDICATES THAT MR. GREY FOLLOWED ADEQUATE PROCEDURES THROUGHOUT HIS INVESTIGATION. HE RECEIVED EMERGENCY AUTHORIZATION TO USE FITZ AS AN INFORMANT. MOREOVER, WHEN THE $610 WAS IN FITZ'S POSSESSION, MR. GREY MAINTAINED AERIAL AND VEHICLE SURVEILLANCE.

THE RELIEF STATUTE SPECIFICALLY STATES THAT WE MAY GRANT RELIEF IF WE CONCUR WITH THE DETERMINATIONS OF THE HEAD OF THE DEPARTMENT THAT THE LOSS OR DEFICIENCY "OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT," WHILE THE "OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES." OUR OFFICE HAS CONSISTENTLY HELD THAT RELIEF MAY BE GRANTED ONLY IN STRICT CONFORMITY WITH THE STATUTE. 48 COMP.GEN. 566 (1969).

ALTHOUGH YOUR LETTER DOES NOT SPECIFICALLY RECITE THAT SPECIAL AGENT GREY WAS WITHOUT FAULT OR NEGLIGENCE AND WAS ACTING IN THE DISCHARGE OF HIS DUTIES, YOU DO CONCLUDE IN EFFECT THAT HE COMPLIED WITH ESTABLISHED PROCEDURES AND THAT THE LOSS RESULTED NOT FROM HIS ACTS BUT FROM THE ACTS OF A PUBLIC ENEMY. MOREOVER, THE RECORD INDICATES THAT HE TOOK ALL POSSIBLE PRECAUTIONARY STEPS DURING HIS INVESTIGATION, AND IT IS WHOLLY CONSISTENT WITH THE REQUIRED FINDINGS. UNDER THE CIRCUMSTANCES, WE CONCUR IN YOUR FINDINGS AND GRANT MR. GREY RELIEF UNDER 31 U.S.C. SEC. 82A-1.

THE LOSS MAY BE CHARGED TO THE SALARIES AND EXPENSES APPROPRIATION OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS.