TITLE:	Relief of Accountable Officers - American Embassy, Brazzaville, Republic of the Congo
BNUMBER:	   B-288284
DATE:		   May 29, 2002
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Relief of Accountable Officers - American Embassy, Brazzaville, Republic of
the Congo, B-288284, May 29, 2002


B-288284


May 29, 2002

Mr. Ronald L. Miller
Chairperson
Committee of Inquiry into Fiscal Irregularities
United States Department of State
1800 N. Kent Street, 5th Floor
Arlington, VA  22209-2163


Subject: Relief of Accountable Officers - American Embassy, Brazzaville,
Republic of the Congo

Dear Mr. Miller:

This responds to your Committee's request of June 20, 2001, that we relieve
Ms. Sally V. Slocum at the American Embassy in Brazzaville, Republic of the
Congo, from liability in the amount of $5,701.43 resulting from her
certification of an improper payment.  We are unable to either grant or deny
relief from liability as the record you have submitted is insufficient to
support any determination.  Furthermore, although the record does not
identify the Kinshasa Embassy official who provided the guidance upon which
Ms. Slocum relied or the disbursing official who actually made the improper
payment, these individuals may share any liability for an improper payment
with the certifying officer.

BACKGROUND

In the fall of 1991, due to widespread violence resulting from a military
mutiny, most staff of the American Embassy in Kinshasa, Republic of the
Congo, were evacuated to the Embassy in Brazzaville.  At this time, Ms.
Slocum, the Administrative Officer for the Brazzaville Embassy, was
approached by or on behalf of Kinshasa Embassy personnel concerning the
possibility of evacuating their household pets to safer locations.
According to Ms. Slocum's account, she replied that the evacuation of pets
was a personal expense and that government resources could not be used.
Nevertheless, at some point the pets were evacuated to various locations by
Agence Air Afrique ("Air Afrique"), although the record does not reveal who
ultimately authorized or arranged for the pet evacuation.  Ms. Slocum stated
that she learned nothing further about the pet evacuation until seeing
subsequent cable communications indicating that various Embassy employees
were being billed for the air evacuation of their pets.

In June 1993, violence again erupted in the Republic of the Congo, this time
requiring the evacuation of Brazzaville Embassy personnel.  During this
crisis, Air Afrique apparently threatened to cut off its transportation
services to the evacuating Brazzaville Embassy personnel unless a payment
was made in the amount of $27,634.07 for its services provided in the 1991
Kinshasa Embassy pet evacuation.  Ms. Slocum sought advice from the Kinshasa
Embassy staff as to how to proceed.  On June 9, 1993, Ms. Slocum certified
payment of this amount to Air Afrique, relying on the fiscal data provided
over the telephone by Kinshasa staff and that Embassy's instructions to
proceed with the payment and charge it to Kinshasa's Suspense Deposit Abroad
(SDA) account.

You indicate that the SDA account is a fund maintained at overseas posts
from which payments for personal expenses can be made on behalf of and as
directed by the depositors, which include Embassy employees and other
authorized individuals and entities.  Embassy employees typically deposit
money into the fund in order to make payments for telephone, gasoline, or
utility bills.  At the time Ms. Slocum certified the $27,634.07 payment to
Air Afrique out of the SDA account, no monies had been deposited into the
SDA account for that purpose.[1]

DISCUSSION

Our Office may relieve a certifying officer of liability for loss of public
money where we find that the certification was based on official records and
the official did not know, and by reasonable diligence and inquiry could not
have discovered, the correct information.  31 U.S.C. ï¿½ 3528(b)(1)(A).  We
are unable to conclude whether relief is appropriate based on the
information provided here.

As a threshold matter, your submission does not explain under what authority
the Brazzaville Embassy holds and administers the SDA account.  As the funds
in the SDA account are personal funds, there is a question as to whether the
government is accountable to the depositors and the extent of Ms. Slocum's
liability for an improper payment made out of the SDA account.  If there is
some statutory basis authorizing the Embassy to hold these private funds in
a trust capacity, then the SDA funds could be regarded as government funds
within the meaning of the accountable officer statutes.  In such a case the
government could be required to reimburse a deficiency in the SDA account
using appropriated funds and Ms. Slocum, as a certifying officer, could be
held liable for any improper payments made out of the SDA account unless
relief from liability is granted.  See e.g., B-238955, April 3, 1991 (State
Department's Overseas Consular Service trust fund was considered public
money for purposes of 31 U.S.C. ï¿½ 3527(a)); B-215477, November 5, 1984 (loss
of patient funds by Veterans Administration hospital constitutes a liability
of the Government for which an accountable officer may be liable); B-190205,
November 14, 1977 (funds entrusted to and accepted by accountable officer
pursuant to check cashing authority now codified at 31 U.S.C. ï¿½ 3342 are
government funds within the meaning of accountable officer relief statute).

However, not all nongovernment funds in the custody of a government official
are held in a trust capacity.  See B-164419-O.M. May 20, 1969 (comparing
funds held in trust to an arrangement where an accountable officer held
private funds of contractor for safekeeping as a favor to the contractor,
which constituted a mere bailment and resulted in limited liability of the
government for any loss).  If in fact the Embassy is not holding these funds
in trust but rather in a bailment capacity, the accountability of both the
government and the certifying officer may be less extensive.

Even if we assume that the SDA funds were held in trust, we cannot make a
determination regarding Ms. Slocum's diligence given the lack of information
in the record addressing the funds control procedures in place, either
pertaining to the SDA account or more generally, which should have guided
her actions.  There is no indication of the steps required to assure
accountability to the depositors, including such things as confirming
balances and ensuring payments are made as directed by the depositor.
Specifically, there is no reference in the record to any procedures or
guidelines that permit the practice of obtaining fiscal data over the
telephone in order to certify payments.  Without such information it is
impossible for us to determine whether or not Ms. Slocum exercised
reasonable diligence and inquiry.  See 55 Comp. Gen. 297 (1975) (diligence
required is a matter of degree dependent upon the practical conditions
prevailing at the time of certification, the sufficiency of the
administrative procedures protecting the interest of the Government, and the
apparency of the error).

In this regard, we acknowledge that the circumstances under which Ms. Slocum
certified the payment were less than ideal and may appropriately be taken
into consideration when determining her obligations in this matter.  It
appears that
Ms. Slocum based her certification exclusively on statements made to her by
telephone, not on official records.  In your submission you indicate that it
was "common practice" for Brazzaville to obtain fiscal data over the
telephone from Kinshasa in order to process payments for Kinshasa and that
Ms. Slocum would have had no way of knowing that the SDA account contained
no monies, nor would she have been expected to question that fact. Assuming
that the procedures under which Ms. Slocum was operating affirmatively
permitted her to rely upon the information provided to her over the
telephone by the Kinshasa Embassy, we question whether this was adequate to
permit certification and Ms. Slocum should be liable for any improper
payment.

You also stated that the Kinshasa Embassy had oversight responsibilities
over the Brazzaville Embassy staff since the Kinshasa Embassy had a
financial management officer, and the Brazzaville Embassy did not. It is not
clear then why Ms. Slocum was the certifying officer for the Kinshasa SDA
account when she was in Brazzaville and could not have direct access to
information about the account's assets.  If it was the financial management
officer of the Kinshasa Embassy who relayed the instructions to pay Air
Afrique, and procedures permitted Ms. Slocum to certify payments based on
such instructions, this raises in our view the issue of whether the Kinshasa
official, instead of Ms. Slocum, would be liable for the improper payment.
See e.g., 67 Comp. Gen. 457, 466 (1988) (certifying official who accepted
memorandum certification of supervisor and certified voucher schedule for
payment is not liable for the loss resulting from the improper payment since
she was entitled to rely upon her supervisor's certification).  The record
contains insufficient information at this time as to who in the Kinshasa
Embassy provided the guidance upon which Ms. Slocum relied and whether her
reliance was in compliance with appropriate guidelines in certifying the
payment to allow us to determine who was at fault.

Finally, it is not clear what funds were used in making payment to Air
Afrique.  The record does not explain how it was that Air Afrique received
its full payment since the funds for the evacuation of the pets had not been
collected or deposited in the Kinshasa SDA account before that payment was
made.  The record is also silent as to the identity and actions of the
Brazzaville Embassy disbursing official who would have issued the check to
Air Afrique, including any indication that the State Department had
initiated action against the disbursing officer.  Since there did not appear
to be sufficient funds in the SDA account to cover the bill, if the
disbursing officer had used appropriated funds to pay Air Afrique, this
would have been improper. Such funds could not be used for the personal
expense of evacuating pets. Therefore, if there was an improper payment from
either appropriated funds or the SDA account, the Brazzaville Embassy
disbursing officer might also be liable for the improper payment.  See
B-287043, May 29, 2001.

In light of these questions we are unable to render an opinion on liability
in this matter and can neither grant nor deny relief.  In order for us to
address whether relief is available to Ms. Slocum, you should provide us
with the following:

ï¿½        The authority under which the Embassy holds and administers the SDA
account.
ï¿½        The accountability guidance or procedures regarding the
administration of the SDA account.
ï¿½        The role/identity of the Kinshasa Embassy official who approved the
payment and the State Department's view of his/her responsibility in this
matter.
ï¿½        The specific source of the payment and the role/identity of the
disbursing officer who paid Air Afrique, and the State Department's view of
his/her responsibility in this matter.

This additional, more specific information would better enable us to
evaluate the circumstances of the Air Afrique payment, the liabilities of
the parties involved, and whether any relief is warranted.


Sincerely yours,
Susan A. Poling
Managing Associate General Counsel







                          -------------------------

[1] It appears that no money was actually collected from (or deposited into
the Kinshasa SDA account by) individuals whose pets were evacuated until
shortly after the improper payment was discovered in August 1994.  To date,
all but $5,701.43 has been collected and of this amount, $2,326.07 is
considered non-recoverable as there is insufficient information to identify
the persons owing these payments.