B-139796, JUL. 10, 1959

B-139796, JUL. 10, 1959

TO MR. GLEN W. HOAR, AUTHORIZED CERTIFYING OFFICER, FOOD AND DRUG ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1959, REQUESTING AN ADVANCE DECISION CONCERNING WHETHER GEORGE L. DICKENS, A FORMER EMPLOYEE OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE REMOVED FOR CAUSE, MAY BE CONSIDERED INDEBTED TO THE UNITED STATES FOR GOVERNMENT MONEYS HE IS BELIEVED, ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE, TO HAVE STOLEN. YOUR DOUBT IN THE MATTER CONCERNS THE DISPOSITION TO BE MADE OF THE FINAL SALARY ACCRUING TO MR. DICKENS AT THE TIME OF HIS REMOVAL AND STEMS FROM THE ACT OF FEBRUARY 24, 1931, 5 U.S.C. 46A, WHICH PROVIDES:

"FROM AND AFTER FEBRUARY 24, 1931, THERE SHALL BE NO WITHHOLDING OR CONFISCATION OF THE EARNED PAY, SALARY, OR EMOLUMENT OF ANY CIVIL EMPLOYEE OF THE UNITED STATES REMOVED FOR CAUSE: PROVIDED, THAT IF AT THE TIME OF SUCH REMOVAL ANY SUCH EMPLOYEE IS INDEBTED TO THE UNITED STATES ANY SALARY, PAY, OR EMOLUMENT ACCRUING TO SUCH EMPLOYEE COMING WITHIN THE PROVISIONS OF THIS SECTION SHALL BE APPLIED IN WHOLE OR IN PART TO THE SATISFACTION OF ANY CLAIM OR INDEBTEDNESS DUE TO THE UNITED STATES.'

SPECIFICALLY, OUR DECISION IS REQUESTED AS TO WHETHER THE PAYROLL COVERING UNPAID SALARY AND UNAPPLIED BOND DEDUCTIONS FOR PAYMENT TO MR. DICKENS MAY BE CERTIFIED OR WHETHER THESE AMOUNTS SHOULD BE APPLIED IN SATISFACTION OF THE SHORTAGE AND CREDITED TO THE APPROPRIATION TO WHICH THE STOLEN MONEYS WOULD OTHERWISE HAVE BEEN DEPOSITED.

ON FEBRUARY 17, 1959, MR. DICKENS, A MESSENGER, WAS GIVEN A SUSPENDED SENTENCE OF 180 DAYS AND PLACED ON PROBATION FOR ONE YEAR AFTER PLEADING GUILTY TO THE THEFT OF $55 IN GOVERNMENT FUNDS FROM THE CENTRAL MAIL ROOM OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. THIS MONEY WAS RECOVERED BY THE GOVERNMENT FROM MR. DICKENS. THE THEFT OCCURRED ON JANUARY 15, 1959, AND MR. DICKENS WAS REMOVED FOR CAUSE SHORTLY THEREAFTER.

IT APPEARS THAT ON TWO PREVIOUS OCCASIONS, A TOTAL OF $486 IN CASH- - $198 ON NOVEMBER 10, 1958, AND $288 ON DECEMBER 2, 1958--- WAS SENT TO THE CENTRAL MAIL ROOM OF THE DEPARTMENT FOR TRANSMITTAL TO THE TREASURY AND THAT IN EACH INSTANCE, THE MONEYS DID NOT REACH THE TREASURY. THESE LOSSES WERE REPORTED TO THE FEDERAL BUREAU OF INVESTIGATION WHICH INVESTIGATED THE MATTER. YOU STATE THAT WHILE MR. DICKENS HAS DENIED THAT HE STOLE THE MISSING $486, YOUR AGENCY IS CONVINCED, ON THE BASIS OF THE FOLLOWING CIRCUMSTANTIAL EVIDENCE DEVELOPED, THAT HE WAS RESPONSIBLE FOR THE SHORTAGE.

WHEN HE WAS APPREHENDED ON JANUARY 15, 1959, FOR THE THEFT OF THE $55, MR. DICKENS HAD IN HIS WALLET A SLIP OF PAPER UPON WHICH WAS WRITTEN THE FIGURE "198," THE EXACT AMOUNT OF THE NOVEMBER 10, SHORTAGE. SEVERAL MONEY ORDER STUBS, DATED DECEMBER 3, 1958, SHOWING PAYMENT FOR BILLS, WERE ALSO IN HIS POCKET. DECEMBER 3, 1958, THE DAY FOLLOWING THE SECOND SHORTAGE, WAS IN A NON-PAYDAY WEEK AND ACCORDING TO A NEWSPAPER ACCOUNT OF THE JANUARY 15, THEFT, MR. DICKENS GAVE "PRESSING DEBTS" AS HIS REASON FOR TAKING THE $55. FURTHER, ALTHOUGH MR. DICKENS DENIED ANY THEFT FROM THE MAILS OTHER THAN THE $55 THEFT, HE ALSO HAD IN HIS POCKET AT THE TIME OF HIS APPREHENSION ON JANUARY 15, A PARTIALLY TORN ENVELOPE CONTAINING A LETTER FROM AN EMPLOYEE TO HER GRANDMOTHER. THIS EMPLOYEE HAD FROM TIME TO TIME MAILED SMALL AMOUNTS OF CASH. FINALLY, DESPITE THE FACT THAT THE MAIL ROOM WAS UNDER SURVEILLANCE BY AN FBI AGENT ON JANUARY 15, 1959, MR. DICKENS WAS SO SKILLFUL IN ABSTRACTING THE ENVELOPE CONTAINING THE $55 THAT THE AGENT STATED HE WAS BARELY ABLE TO OBSERVE IT.

THE EVIDENCE DISCLOSED THROUGH INVESTIGATION BY THE FEDERAL BUREAU OF INVESTIGATION IS SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE AGAINST MR. DICKENS; AND THE ADMINISTRATIVE OFFICE CONCERNED HAS FOUND ON THE BASIS OF THAT EVIDENCE, THAT MR. DICKENS IS, IN FACT, RESPONSIBLE FOR THE LOSS SUSTAINED BY THE GOVERNMENT. MR. DICKENS HAS DENIED RESPONSIBILITY BUT, APPARENTLY, HAS SUBMITTED NO EVIDENCE TO SUPPORT HIS DENIAL. A MERE CATEGORICAL DENIAL IS NOT SUFFICIENT TO OVERCOME THE PRIMA FACIE CASE ESTABLISHED BY THE INVESTIGATION AND ADMINISTRATIVE FINDING, AND MR. DICKENS MUST BE CONSIDERED INDEBTED TO THE UNITED STATES. SEE 19 COMP. GEN. 88.

ACCORDINGLY, THE PAYROLL VOUCHER COVERING UNPAID SALARY AND UNAPPLIED BOND DEDUCTIONS FOR PAYMENT TO MR. DICKENS MAY NOT PROPERLY BE CERTIFIED, THE TOTAL THEREOF BEING FOR APPLICATION TOWARD SATISFACTION OF THE INDEBTEDNESS AND FOR CREDIT TO THE APPROPRIATE ACCOUNT IN THE TREASURY TO WHICH THE $486 WOULD HAVE OTHERWISE BEEN DEPOSITED.