In the Matter of the Petition by

LARRY G. BENDER

P.S. Docket No. DCA 178

APPEARANCE FOR PETITIONER:
Larry G. Bender, pro se

APPEARANCE FOR RESPONDENT:
William G. Roberts, Jr.
Labor Relations Specialist
United States Postal Service

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

Petitioner, Larry G. Bender, has filed a petition under the Debt Collection Act of 1982, as amended, 5 U.S.C. 5514(a), for a hearing based solely on written submissions as a result of a notice, dated August 16, 1983, from the Manager, Finance, Central Florida Customer Service District.  The notice informed Petitioner that the Postal Service intended to make “Involuntary Salary Deduction(s)” to collect a debt in the amount of $248.09 as a result of a shortage in Petitioner’s accountability at the Wabasso, Florida Post Office.

FINDINGS OF FACT

1.  On April 2, 1993, Petitioner, who was the postmaster at the Wabasso, Florida Post Office was summoned to the Vero Beach Post Office.  While there he was relieved of his duties as postmaster at Wabasso and placed on administrative leave.  At that time, Linda Gouldner was installed as officer-in-charge of the Wabasso Post Office.  This transfer of responsibility was made following a Postal Inspection Service investigation of allegations that Petitioner had forged endorsements on a number of money orders in order to cash them.  The last of the allegedly forged money orders had been cashed in march 1992.

2.  On the date of the transfer to Ms. Gouldner, audits of the main stamp stock and Petitioner’s individual accountability at Wabasso were performed.  The audits were performed and/or witnessed by Ms. Gouldner and by tom McKinney, Financial Services Coordinator.  Neither Petitioner nor the person previously designated by him to witness audits in his absence was present during the audit.

3.  The audits concluded that the main stamp stock, for which Petitioner was responsible as postmaster, had a shortage of $84.20, and that Petitioner’s individual accountability was short by $163.89.  There are no allegations in the record of any connection between the shortages determined by the audits and the forgeries alleged to have been committed by Petitioner.

4.  A letter demanding payment of $248.09 was issued to Petitioner on April 26, 1993.  In several exchanges of correspondence, Petitioner contested the demand for payment, questioning the accuracy of the count and arguing that those who conducted the audits failed to have him or his designated witness present, as required by Handbook F-1, Post Office Accounting Procedures.  Ultimately, Petitioner’s arguments were rejected and the August 16, 1993 notice of involuntary salary deductions was issued to him.

5.  The follow provisions of Handbook F-1 are relevant to this matter:

“433.23 An employee must be granted the opportunity to be present whenever his financial accountability is inventoried or audited.  If not available, there must be a witness of his choice present.  Each employee assigned a stamp credit should furnish the installation head two names of postal employees … whom the employee chooses to witness the audit or inventory when absent…
433.24 If it is necessary to gain access to a receptacle assigned to an absent employee, the keys to the receptacle must be obtained in accordance with instructions printed on Form 3977.  A witnessed inventor must be made whenever access to an employee’s accountability is gained in this manner.”

DECISION

In its Answer to the petition, Respondent contends that under paragraph 433.24 of Handbook F-1, all that was required at the time of the transfer was a “witnessed inventory” and that that requirement was met – apparently by having Ms. Gouldner and Mr. McKinney conduct and witness the count.  Respondent also argues that Petitioner’s designated witness was unavailable because at the time she was the sole clerk at the Wabasso Post Office and it would have been necessary to close down the post office in order to have her observe the count.

Petitioner argues that the demand for payment should be overturned and his petition granted because of the Postal Service’s failure to give him or his designated witness the opportunity to be present during the audit of his accountability, as required by Handbook F-1.  Petitioner argues that the audit could have been performed in his presence instead of while he was at the Vero Beach Post Office and, in any event, that his designated witness was available at the time of the audit and could have witnessed the count.

Paragraph 433.23 of Handbook F-1 unambiguously required that either the employee or his designated witness be given the opportunity to be present during an audit or inventory of the employee’s financial accountability.  While there may be exigent circumstances which would justify conducting an audit in violation of the requirements of that paragraph, Respondent has not shown that they existed here.  In particular, Respondent has not shown any urgency related to the investigation of Petitioner for the alleged forgeries (the last of which occurred more than a year earlier), which investigation apparently precipitated the decision to remove Petitioner from his duties as postmaster.

Although paragraph 433.24 relied on Respondent, refers only to a “witnessed” inventory (without the specific requirement that the employee or his designated witness be present), that language is not inconsistent with, and must be read in conjunction with, the requirement in paragraph 433.23 that the employee or his designated witness be given the opportunity to be present whenever an audit or inventory is conducted.  Respondent has not shown why the count could not have been conducted in Petitioner’s presence at the Wabasso Post Office.  Further, Respondent ahs not shown why Petitioner’s designated witness, who was present in the Wabasso Post Office, could not have been temporarily relieved of her duties by a replacement clerk to witness the audit or why the audit could not have been conducted in her presence at a time when she was not required to be at the window.  Therefore, notwhithstanding Respondent’s arguments I conclude that the Postal Service failed to comply with the requirements of handbook F-1 when it conducted the audit of Petitioner’s accountability at the Wabasso Post Office.

In order to give effect the requirements of Handbook F-1 which were violated by Respondent, I have concluded that, under the circumstances of this case, the results of the audit conducted by Ms. Gouldner and Mr. McKinney will not be used in determining the existence of any shortage in Mr. Bender’s accountability.  Since no other evidence of such a shortage has been presented, Respondent has not shown the existence of the shortage and has not shown that Mr. Bender is indebted to the Postal Service.

Accordingly, I conclude that Mr. Bender is not indebted to the Postal Service as claimed in the August 16, 1993 letter from the Manager, Finance.  The petition is granted.

David I Brochstein
Administrative Judge