B-50592, SEPTEMBER 27, 1945, 25 COMP. GEN. 299

B-50592, SEPTEMBER 27, 1945, 25 COMP. GEN. 299

OFFICERS AND EMPLOYEES - LIABILITY FOR GOVERNMENT LOSSES RESULTING FROM ERROR OR NEGLECT OF DUTY THERE IS NO AUTHORITY TO WITHHOLD ANY PART OF THE SALARY DEDUCTIONS TO THE CREDIT OF AN EMPLOYEE IN THE RETIREMENT FUND TO COVER A PECUNIARY LOSS SUSTAINED BY THE GOVERNMENT AS A RESULT OF ERROR IN JUDGMENT OR NEGLECT OF DUTY ON HIS PART--- WHETHER OR NOT A PRIMA FACIE CASE OF LIABILITY BE ESTABLISHED--- IN THE ABSENCE OF SPECIFIC ADMINISTRATIVE REGULATIONS ISSUED PURSUANT TO LAW PROVIDING FOR THE ASSESSMENT OF CHARGES AGAINST EMPLOYEES UNDER SUCH CIRCUMSTANCES.

COMPTROLLER GENERAL WARREN TO THE NATIONAL HOUSING ADMINISTRATOR SEPTEMBER 27, 1945:

THERE HAS BEEN CONSIDERED THE MATTER SET FORTH IN LETTER OF MARCH 2, 1945, FROM THE GENERAL COUNSEL, FEDERAL HOME LOAN BANK ADMINISTRATION, AS FOLLOWS:

THE UNITED STATES OF AMERICA, ACTING BY THE NATIONAL HOUSING AGENCY, HAS A CLAIM, IN THE AMOUNT OF $40, A. R. ROSENSTIEL, CONVERSION SUPERVISOR, AND HAROLD R. RAUBER, ASSOCIATE ARCHITECT, PREDICATED UPON THEIR FAILURE TO PROPERLY PERFORM DUTIES ASSIGNED TO THEM. ATTACHED HERETO IS FILE IDENTIFIED AS " EXHIBIT A" CONTAINING PERTINENT INFORMATION RELATIVE TO THIS CLAIM.

EARLY IN THE NEGOTIATION OF THE LEASE OF THE CAPTIONED PROPERTY AND ALSO SUBSEQUENT TO THE EXECUTION OF THE LEASE, THE QUESTION AROSE AS TO WHETHER OR NOT FRONT STEPS, IT WAS PROPOSED TO ERECT, WOULD ENCROACH ON THE ADJOINING DRIVEWAY. EACH TIME MR. ROSENSTIEL REPORTED THAT HE HAD THE MATTER INVESTIGATED BY MR. RAUBER AND THAT SUFFICIENT LAND WAS AVAILABLE FOR CONSTRUCTION OF THE PROPOSED STEPS. DURING THE CONVERSION OF THE PROPERTY, THE ADJOINING NEIGHBOR COMPLAINED THAT THE STEPS ENCROACHED ON THE DRIVEWAY AND DEMANDED THAT THE STEPS BE REMOVED. THE ENCROACHMENT BEING VERIFIED BY A SURVEY OF THE PROPERTY, A PART OF THE STEPS WAS REMOVED AT A COST OF $40.

MR. ROSENSTIEL AND MR. RAUBER HAVE REFUSED TO REIMBURSE THE GOVERNMENT FOR THE ADDITIONAL EXPENSE INCURRED IN REMOVING THE ENCROACHMENT AND WE ARE INFORMED THAT THEY HAVE FILED APPLICATIONS WITH THE CIVIL SERVICE COMMISSION FOR A REFUND OF THEIR RESPECTIVE RETIREMENT FUND ACCOUNTS.

ADMINISTRATIVE EFFORTS TO EFFECT COLLECTION OF THIS CLAIM HAVING BEEN UNSUCCESSFUL, THE MATTER IS REFERRED TO YOU FOR DISPOSITION. IT IS OUR RECOMMENDATION THAT THE AMOUNT OF THIS CLAIM BE OFFSET AGAINST THE AMOUNTS PAYABLE TO MESSRS. ROSENSTIEL AND RAUBER FROM THE RETIREMENT FUND.

IN THE EVENT OF COLLECTION, CREDIT SHOULD BE MADE TO APPROPRIATION SYMBOL 86X0105 (03) .004 NDH, OFFICE OF THE ADMINISTRATOR NHA (TRANSFER TO FPHA).

SINCE THE FOREGOING REPORT DID NOT ESTABLISH A CLEAR LIABILITY ON THE PART OF THE INVOLVED EMPLOYEES, THE MATTER WAS BROUGHT TO YOUR ATTENTION BY LETTER OF JULY 16, 1945, WITH THE REQUEST THAT, UPON FURTHER CONSIDERATION OF THE CASE, THIS OFFICE BE GIVEN THE BENEFIT OF YOUR CONCLUSIONS AND RECOMMENDATIONS AS TO PECUNIARY LIABILITY OF THE SAID EMPLOYEES. YOUR LETTER OF AUGUST 22, 1945, IN RESPONSE TO SAID REQUEST, IS AS FOLLOWS:

WITH REFERENCE TO YOUR LETTER OF JULY 16, 1945, AN EXAMINATION OF THE FILE ON THE CAPTIONED CASE REVEALS THAT THE QUESTION OF A POSSIBLE ENCROACHMENT AROSE BEFORE THE CONVERSION WAS STARTED. THE FACTUAL EVOLVEMENT OF THE GOVERNMENT'S CLAIM IS CONTAINED IN THE FOLLOWING PERTINENT EXCERPTS FROM A REPORT, DATED JULY 5, 1944, ADDRESSED TO WILLIS G. KEMPER, REGIONAL MANAGER, HOME OWNERS' LOAN CORPORATION, BY JEROME E. MEYERS, RECONDITIONING INSPECTOR:

" MR. EMERMAN WAS INSISTENT ON HAVING THE ENTRANCE TAKEN FROM THE SOUTH SIDE OF THE HOUSE, AS HE ASSURED THE CONVERSION SUPERVISOR THAT A THREE FOOT LANDING AND STEPS WOULD NOT ENCROACH ON THE JOINT PROPERTY OWNED DRIVEWAY. HE REVEALED THAT HE WAS A LAWYER AND WAS THOROUGHLY FAMILIAR WITH THE ESTABLISHED LOT LINES ON THIS PROPERTY.

"AFTER A CONFERENCE ON THE MATTER, THE PROPERTY WAS REINSPECTED BY OUR FEE ARCHITECT AND CONVERSION SUPERVISOR, WHICH RESULTED IN THE REVISED PLANS CHANGING THE REAR ENTRANCE TO THE SOUTH SIDE OF THE HOUSE.

"SOME TIME AFTER THE LEASE WAS NEGOTIATED, I REVIEWED THE CASE AND INSTRUCTED MR. A. R. ROSENSTIEL, CONVERSION SUPERVISOR, TO MAKE CERTAIN THAT AN ENCROACHMENT DID NOT EXIST BEFORE FURTHER PROCESSING THE CASE. MR. ROSENSTIEL ASSIGNED THE CASE TO MR. HAROLD RAUBER, ASSOCIATE ARCHITECT, AND HAD INSTRUCTED HIM TO INSPECT THE PROPERTY FOR ACTUAL MEASUREMENTS. MR. RAUBER REPORTED TO MR. ROSENSTIEL THAT AN ENCROACHMENT DID NOT EXIST AND THE CASE WAS THEN PROCESSED FOR FINAL WORKING DRAWINGS.

"THIS CASE WAS LATER QUESTIONED BY MR. EMERY M. SUHRBIER, CONVERSION SUPERVISOR, PRIOR TO THE TIME OF AWARDING CONTRACT. MR. ROSENSTIEL WAS AGAIN REQUESTED TO CHECK THE SIDE LOT MEASUREMENT TO MAKE SURE THAT THE PROPOSED STEPS AND WALK WOULD NOT BE PLACED ON ANY PORTION OF THE JOINT OWNED DRIVEWAY. MR. ROSENSTIEL REPORTED THAT THE MATTER WAS THOROUGHLY INVESTIGATED BY MR. RAUBER AND THAT SUFFICIENT LAND WAS AVAILABLE ON THE SOUTH SIDE FOR STEPS AND STOOP. AFTER MR. SUHRBIER WAS GIVEN ASSURANCE THAT THE MATTER WAS CLEARED BY MR. ROSENSTIEL, HE PROCEEDED WITH THE AWARDING OF THE CONTRACT.' (ITALICS SUPPLIED.)

ALTHOUGH THE QUESTION OF ENCROACHMENT COULD HAVE BEEN DEFINITELY RESOLVED BY THE OBTAINING OF A SURVEY, THE INVOLVED EMPLOYEES RELIED UPON THEIR OWN DETERMINATION OF THE BOUNDARIES OF THE PROPERTY. THE ESTABLISHED PROCEDURE DID NOT REQUIRE THE PROCUREMENT OF A SURVEY IN ALL CASES, BUT PROVIDED THAT SURVEYS COULD BE OBTAINED WHEN DEEMED NECESSARY.

UPON CONSIDERATION OF THESE FACTS, IT IS MY OPINION THAT THE ADDITIONAL EXPENSE INCURRED BY THE GOVERNMENT WAS THE RESULT OF AN ERROR IN JUDGMENT ON THE PART OF THE INVOLVED EMPLOYEES.

IN A SOMEWHAT SIMILAR CASE HERETOFORE CONSIDERED BY THIS OFFICE, NAMELY, A-25502, DATED FEBRUARY 2, 1929 (SEE, ALSO, A-31814, DATED MAY 29, 1930), IT WAS HELD THAT, ORDINARILY, AN EMPLOYEE'S COMPENSATION IS PAYABLE EVEN THOUGH THROUGH ERROR OR THROUGH NEGLECT OF DUTY HE SHOULD OCCASION A LOSS TO THE UNITED STATES, THE USUAL METHOD OF DISCIPLINING FOR ERRORS, NEGLECT OF DUTY, ETC., ON THE PART OF AN EMPLOYEE BEING BY ADJUSTMENT OF EFFICIENCY RATING OR IMMEDIATE DEMOTION. BUT, WHEN THE HEAD OF A FEDERAL DEPARTMENT OR ESTABLISHMENT--- IN ORDER TO PROTECT THE INTERESTS OF THE UNITED STATES--- HAS ISSUED REGULATIONS PURSUANT TO LAW WHICH PROVIDE FOR THE CHARGING OF GOVERNMENT LOSSES OCCURRING UNDER CERTAIN CIRCUMSTANCES TO THE EMPLOYEE FOUND TO BE RESPONSIBLE THEREFOR, SUCH REGULATIONS MAY BE REGARDED AS A PART OF THE CONTRACT OF EMPLOYMENT.

HOWEVER, IN THE INSTANT CASE THERE IS NO SHOWING THAT ANY SUCH ADMINISTRATIVE REGULATIONS HAD BEEN PROMULGATED BY THE NATIONAL HOUSING AGENCY SO THAT THE EMPLOYEES CONCERNED COULD HAVE BEEN APPRISED OF THEIR PECUNIARY LIABILITY FOR ANY LOSS SUSTAINED BY THE GOVERNMENT AS A RESULT OF ERROR IN JUDGMENT OR NEGLECT OF DUTY ON THEIR PART. AND, EVEN IF A PRIMA FACIE CASE OF LIABILITY COULD BE ESTABLISHED AGAINST THE SUBJECT EMPLOYEES--- WHICH FACT IS NOT APPARENT ON THE BASIS OF THE PRESENT RECORD --- IN THE ABSENCE OF SPECIFIC REGULATIONS PROVIDING FOR THE ASSESSMENT OF CHARGES IN SUCH CASES, I KNOW OF NO AUTHORITY FOR WITHHOLDING ANY PART OF THE SALARY DEDUCTIONS CREDITED TO THEIR INDIVIDUAL ACCOUNTS IN THE RETIREMENT FUND TO COVER THE CHARGES RAISED AGAINST THEM ON THE BOOKS OF THE NATIONAL HOUSING AGENCY.

ACCORDINGLY, IF OTHERWISE PROPER, THE SALARY DEDUCTIONS CREDITED TO THE FORMER EMPLOYEES IN THE SAID FUND WOULD APPEAR TO BE FOR RELEASING TO THEM IN THE USUAL MANNER.