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GENERAL ACCOUNTING OFFICE - JURISDICTION - RELIEF AUTHORITY - ACCOUNTABLE OFFICERS - DRUG ENFORCEMENT CASES DRUG ENFORCEMENT ADMINISTRATION IS NOT REQUIRED TO SEEK RELIEF UNDER 31 U.S.C. 82A-1 FOR SPECIAL AGENTS WHO LOSE FUNDS ADVANCED TO PURCHASE CONTROLLED SUBSTANCES WHEN POTENTIAL SELLER ABSCONDS WITH GOVERNMENT'S MONEY. GENERAL ACCOUNTING OFFICE'S VIEW THAT RELIEF FOR SUCH AGENTS MUST BE SOUGHT UNDER THE RELIEF STATUTE BECAUSE THEY HAVE CUSTODY OF FUNDS AT TIME OF THE LOSS IS MODIFIED. ALTHOUGH AGENTS ARE ACCOUNTABLE FOR FUNDS ADVANCED TO THEM FOR CONTROLLED SUBSTANCE PURCHASE. ADMINISTRATION MAY RECORD LOSS OCCURRING WHILE FUNDS WERE BEING USED FOR PURPOSE FOR WHICH THEY WERE ENTRUSTED.

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B-204908, MARCH 31, 1982, 61 COMP.GEN. 313

GENERAL ACCOUNTING OFFICE - JURISDICTION - RELIEF AUTHORITY - ACCOUNTABLE OFFICERS - DRUG ENFORCEMENT CASES DRUG ENFORCEMENT ADMINISTRATION IS NOT REQUIRED TO SEEK RELIEF UNDER 31 U.S.C. 82A-1 FOR SPECIAL AGENTS WHO LOSE FUNDS ADVANCED TO PURCHASE CONTROLLED SUBSTANCES WHEN POTENTIAL SELLER ABSCONDS WITH GOVERNMENT'S MONEY. GENERAL ACCOUNTING OFFICE'S VIEW THAT RELIEF FOR SUCH AGENTS MUST BE SOUGHT UNDER THE RELIEF STATUTE BECAUSE THEY HAVE CUSTODY OF FUNDS AT TIME OF THE LOSS IS MODIFIED. ALTHOUGH AGENTS ARE ACCOUNTABLE FOR FUNDS ADVANCED TO THEM FOR CONTROLLED SUBSTANCE PURCHASE, ADMINISTRATION MAY RECORD LOSS OCCURRING WHILE FUNDS WERE BEING USED FOR PURPOSE FOR WHICH THEY WERE ENTRUSTED-- INVESTIGATION OF SALE OF CONTROLLED SUBSTANCES-- AS INVESTIGATIVE EXPENSE UNDER AUTHORITY OF 21 U.S.C. 886, PROVIDED THAT THE LOSS IS NOT ATTRIBUTABLE TO OFFICER'S NEGLIGENCE. MOREOVER, AGENCY MUST STILL SEEK RELIEF UNDER 31 U.S.C. 82A-1 FOR FUNDS LOST UNDER CIRCUMSTANCES UNRELATED TO PURPOSES FOR WHICH FUNDS WERE ENTRUSTED. MODIFIES 59 COMP.GEN. 113; B-188894, SEPT. 29, 1977; B-192010, AUG. 14, 1978; B-191891, JUNE 16, 1980.

TO THE HONORABLE KEVIN D. ROONEY, DEPARTMENT OF JUSTICE, MARCH 31, 1982:

YOU REQUESTED OUR DECISION ON WHETHER A LOSS OF FUNDS ADVANCED TO BUY CONTROLLED SUBSTANCES IS THE KIND OF LOSS FOR WHICH RELIEF MUST BE SOUGHT FROM GAO AS CONTEMPLATED BY THE RELIEF STATUTE, 31 U.S.C. 82A-1, OR WHETHER THE LOSS MAY BE CLEARED BY RECORDING IT AS AN ADMINISTRATIVE EXPENSE UNDER THE AUTHORITY OF 21 U.S.C. 866. YOU STATED THAT DRUG ENFORCEMENT ADMINISTRATION (DEA) SPECIAL AGENTS WHO ARE GIVEN APPROPRIATED FUNDS TO USE TO BUY CONTROLLED SUBSTANCES OFTEN FAIL TO OBTAIN ANYTHING OF EVIDENTIARY VALUE BECAUSE THE POTENTIAL SELLER ABSCONDS WITH THE GOVERNMENT'S MONEY. THE AGENTS ATTEMPT TO BUY THE CONTROLLED SUBSTANCES AS PART OF INVESTIGATIVE ACTIVITIES AUTHORIZED BY THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970, AS AMENDED, 21 U.S.C. 801 ET SEQ. (19761. AS DISCUSSED BELOW, WE AGREE THAT ACCOUNTABLE OFFICER RELIEF FOR FUNDS LOST IN CONNECTION WITH ATTEMPTS TO BUY CONTROLLED SUBSTANCES NEED NOT BE SUBMITTED TO OUR OFFICE UNDER THE RELIEF STATUTE.

THE ADMINISTRATION'S CURRENT PRACTICE IS TO CONVENE A BOARD OF INVESTIGATION TO REVIEW THE FACTS SURROUNDING THE LOSS. THEN, IF DEA'S CONTROLLER IS SATISFIED THAT THE AGENT WAS ACTING WITHOUT NEGLIGENCE, AND IN THE PERFORMANCE OF HIS OR HER OFFICIAL DUTIES, THE EXPENDITURE IS RECORDED AS AN INVESTIGATION EXPENSE UNDER THE AUTHORITY OF 21 U.S.C. 886(1976).

THE FOLLOWING ACTUAL CASE IS PROVIDED FOR ILLUSTRATIVE PURPOSES:

A DRUG ENFORCEMENT ADMINISTRATION SPECIAL AGENT WAS ADVANCED $1,250.00 FROM THE DEA IMPREST FUND TO BE USED TO PURCHASE DRUGS FROM A SUSPECTED DEALER. THE AGENT GAVE THE $1,250.00 TO A LOCAL POLICE OFFICER WITH INSTRUCTIONS NOT TO ADVANCE THE FUNDS, I.E., NOT TO PAY FOR THE DRUGS IN ADVANCE OF DELIVERY. LATER, THE POLICE OFFICER GAVE THE FUNDS TO A COOPERATING INDIVIDUAL WITH INSTRUCTIONS NOT TO FRONT THE FUNDS TO THE SUSPECTED DEALER. (A COOPERATING INDIVIDUAL IS A PERSON, NOT A LAW ENFORCEMENT OFFICER, WHO IS WILLING TO PROVIDE INFORMATION AND SERVE AS AN INTERMEDIARY BETWEEN THE LAW ENFORCEMENT OFFICER AND A PERSON SUSPECTED OF ILLEGAL DRUG TRAFFICKING.) DESPITE THESE INSTRUCTIONS, THE COOPERATING INDIVIDUAL FRONTED THE FUNDS TO THE SUSPECTED DEALER WHO AGREED TO DELIVER 50 DILAUDID TABLETS AT A LATER TIME. THE DRUGS WERE NOT DELIVERED, AND SUBSEQUENT CONTACT WITH THE SUSPECTED DEALER REGARDING THE DELIVERY OF THE DRUGS OR RETURN OF THE FUNDS WAS UNSUCCESSFUL.

THIS OFFICE IS AUTHORIZED UNDER 31 U.S.C. 82A-1 TO RELIEVE AN ACCOUNTABLE OFFICER OR AGENT OF LIABILITY ON ACCOUNT OF A PHYSICAL LOSS OF GOVERNMENT FUNDS IF IT CONCURS IN THE DETERMINATIONS BY THE HEAD OF THE OFFICER'S AGENCY THAT THE LOSS OCCURRED WHILE THE OFFICER WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, AND WITHOUT FAULT OR NEGLIGENCE. GENERAL, ANY GOVERNMENT OFFICER OR EMPLOYEE WHO BY REASON OF HIS OR HER EMPLOYMENT IS RESPONSIBLE FOR OR HAS CUSTODY OF GOVERNMENT FUNDS IS AN ACCOUNTABLE OFFICER. 59 COMP.GEN. 113 114(1979); B-188894, SEPTEMBER 29, 1977.

WE HAVE CONSISTENTLY TREATED LAW ENFORCEMENT PERSONNEL WITH CUSTODY OF GOVERNMENT FUNDS AS ACCOUNTABLE OFFICERS. FOR EXAMPLE, WE HELD THAT A SPECIAL AGENT OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS WHO HAD BEEN ADVANCED FUNDS BY A DEPARTMENT OF TREASURY CASHIER FOR THE PURPOSE OF PURCHASING HANDGUNS IN AN UNDERCOVER OPERATION WAS AN ACCOUNTABLE OFFICER. SEE B-192010, AUGUST 14, 1978. WE ALSO HELD THAT DEA INVESTIGATORS WHO WERE GIVEN CUSTODY OF IMPREST FUND MONEY TO USE AS A "FLASH ROLL" WERE ACCOUNTABLE OFFICERS. B-191891, JUNE 16, 1980. FOR THE SAME REASON, A DEA AGENT WHO HAS BEEN PROVIDED FUNDS TO PURCHASE DRUGS FROM A SUSPECTED DEALER IS ALSO AN ACCOUNTABLE OFFICER.

YOU HAVE RAISED A DIFFERENT QUESTION, HOWEVER, WHICH WE HAVE NOT PREVIOUSLY CONSIDERED. ALTHOUGH NOT PHRASED IN EXACTLY THESE TERMS, YOUR LETTER SUGGESTS THAT A "LOSS" OF FUNDS UNDER THE CIRCUMSTANCES DESCRIBED IN YOUR ILLUSTRATIVE EXAMPLE IS NOT REALLY A PHYSICAL LOSS WITHIN THE MEANING OF 32 U.S.C. 82A-1. IT IS APPARENTLY NECESSARY TO PUT CERTAIN FUNDS AT RISK IN THE COURSE OF OBTAINING EVIDENCE OF VIOLATIONS OF CONTROLLED SUBSTANCES LAWS. BECAUSE OF THE NATURE OF THE PARTIES BEING INVESTIGATED, THERE IS ALWAYS THE POSSIBILITY THAT THE FUNDS WILL BE APPROPRIATED BY THE INVESTIGATIVE SUBJECT OR AN AGENT WHO THEN REFUSES TO DELIVER THE DRUGS PAID FOR WITH THE GOVERNMENT FUNDS. WE DO NOT KNOW THE FREQUENCY WITH WHICH SUCH EVENTS OCCUR IN THE COURSE OF DEA'S INVESTIGATIVE OPERATIONS. NEVERTHELESS, YOUR LETTER SUGGESTS THAT IT HAPPENS OFTEN ENOUGH TO WARRANT THE ESTABLISHMENT OF SPECIAL PROCEDURES-- I.E., THE CONVENING OF A BOARD OF INVESTIGATION-- TO DETERMINE WHETHER THE LOSS OF INVESTIGATIVE FUNDS IS ATTRIBUTABLE TO THE ACCOUNTABLE OFFICER'S NEGLIGENCE OR WHETHER HE PERFORMED HIS DUTIES PROPERLY IN EVERY RESPECT BUT THE CALCULATED RISK OF LOSS MATERIALIZED ANYWAY. IN THE LATTER CASE, WE THINK IT IS QUITE APPROPRIATE TO RECORD THE LOST FUNDS AS A NECESSARY INVESTIGATIVE EXPENSE OF THE AGENCY AND THUS CLEAR THE ACCOUNT. THERE IS NO NEED TO SEEK RELIEF FROM THIS OFFICE UNDER 31 U.S.C. 82A-1 IN THESE CIRCUMSTANCES.

ON THE OTHER HAND, AN AGENCY MAY NOT RECORD ALL LOSSES BY LAW ENFORCEMENT OFFICIALS OF FUNDS FOR WHICH THEY ARE ACCOUNTABLE AS ADMINISTRATIVE EXPENSES. IF THE BOARD FINDS THE OFFICER TO HAVE ACTED NEGLIGENTLY, HE MUST BE HELD LIABLE FOR ALL THE FUNDS LOST, EVEN THOUGH THE LOSS TOOK PLACE IN THE COURSE OF A DRUG INVESTIGATION. THE DEA SHOULD TAKE IMMEDIATE STEPS TO COLLECT THE AMOUNTS MISSING FROM THE IMPREST FUND WHICH ARE ATTRIBUTABLE TO HIS NEGLIGENCE IN ACCORDANCE WITH ESTABLISHED CLAIMS COLLECTION PROCEDURES.

MOREOVER, AN AGENCY MUST STILL SEEK RELIEF UNDER 31 U.S.C. 82A-1 WHEN AN OFFICER OR EMPLOYEE LOSES FUNDS UNDER CIRCUMSTANCES WHICH ARE UNRELATED TO CARRYING OUT THE PURPOSES FOR WHICH THE FUNDS WERE ENTRUSTED. FOR EXAMPLE, A LOSS IN WHICH AN AGENT LOSES FUNDS BECAUSE HE LEFT THEM UNATTENDED IN A PUBLIC PLACE WHILE ON HIS WAY TO MAKE A DRUG PURCHASE SHOULD STILL BE REFERRED TO OUR OFFICE UNDER THE RELIEF STATUTE IF THE AGENCY WISHES TO RECOMMEND RELIEF.

OUR PREVIOUS DECISIONS ARE MODIFIED INSOFAR AS THEY ARE INCONSISTENT.

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