In the Matter of the Petition by) November 6, 1998 ) PATRICK M. SHEEHAN ) 11085 St. Charles Place ) ) at ) ) Carmel, IN 46033-5942 ) P.S. Docket No. DCA 98-273 APPEARANCE FOR PETITIONER: Patrick M. Sheehan 11085 St. Charles Place Carmel, IN 46033-5942 APPEARANCE FOR RESPONDENT: L. Terrance Spencer Finley Inspector Attorney, Chicago ISOSG United States Postal Service 222 S. Riverside Plaza, Suite 1250 Chicago, IL 60606-6100
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Patrick M. Sheehan, filed a timely Petition for a hearing under the Debt Collection Act of 1982, as amended, 5 U.S.C. §5514(a), after receiving a Notice of Involuntary Administrative Salary Offsets. The Notice advised Petitioner that the Postal Service intended to make deductions from Petitioner’s salary to collect $2,421, the value of a radio stolen from Petitioner’s official vehicle.
Petitioner initially asked for an oral hearing, but later withdrew that request and opted for a hearing on the written record. Both parties have submitted evidence in support of their positions.
FINDINGS OF FACT
1. Petitioner is a postal inspector in Indianapolis, Indiana (Respondent’s Exhibit ("RX") 16).
2. Petitioner was assigned a Jeep Cherokee, a mobile telephone, and a Motorola hand-held, two-way radio for use in the performance of his duties as a postal inspector. Petitioner was accountable for this equipment. (Petitioner’s Exhibit ("PX") 3; RX 6, 7, 16).
3. At approximately 1:15 p.m. on January 26, 1998, Petitioner drove the Jeep to the county health department to obtain records for use in an investigation. (PX 2, 3; RX 16; Exhibit 3 (Videotape) to RX 16 ("RX 16-3"); RX 16-1).
4. The mobile telephone and radio were in the front seat area of his car. The telephone was connected by a cord to the cigarette lighter and was visible through the windows of the car (PX 2; RX 16-3). The radio was small and was wedged between the center console and the passenger seat. At most, the small antenna of the radio might have been visible from the driver’s side window. Through the windshield from the passenger side of the car, the radio would have been visible if in an upright position, but if it was horizontal, it would at most have only been partially visible from the passenger side. Petitioner did not recall whether he left the radio upright or horizontal. (PX 2, 3; RX 16-3).
5. A suitcase-sized container of equipment used in the performance of Petitioner’s duties was on the back seat and was visible from the outside of the car. Also, a car radio/siren was located on the floor in the front seat area and was visible through the windows on either side of the car, although the vehicle’s tinted windows made it somewhat difficult to identify from the outside the details of items in the car. (RX 16-3).
6. The car did not contain a trunk or other enclosed area other than the console compartment and the glove box. The rear of the car held a large plastic storage container with a non-lockable lid. (RX 16-3).
7. Petitioner parked his car in the health department’s front parking lot, which was busy with cars coming and going. Petitioner locked the car and went into the health department. When Petitioner returned, no more than twenty minutes later, his car had been broken into. The lock on the driver’s side had been forced with some sort of prying tool, damaging the lock and the finish surrounding it. (PX 2, 3; RX 16-1, 16-3).
8. Petitioner’s mobile telephone and the two-way radio had been stolen. The center console compartment had been rifled, and a Postal Service master key ("arrow key") that had been in the center compartment was stolen. (PX 2, 3; RX 16, 16-3).
9. Petitioner promptly reported the theft to Inspection Service management, and the local police were notified, but the stolen items were not recovered (RX 16, 16-4).
10. At the time of the theft, the depreciated value of the radio was $2,421 (PX 7).
11. The Inspection Service Manual ("ISM") addresses the security of Postal Service property:
"Every Inspection Service employee is responsible for safeguarding and maintaining USPS property. This responsibility applies to property for which employees have direct personal responsibility (accountable) and for all other government or USPS property." (RX 2, ISM 155.23).
"Employees must protect all accountable property from loss or damage. Sufficient protection is not afforded property left in open view in a locked vehicle. If loss or damage occurs through negligence, the employee will be held personally responsible." (RX 5, ISM 155.52).
12. On March 25, 1998, Respondent issued Petitioner an invoice demanding payment of $2,421 for the stolen radio (PX 8).
13. After intervening correspondence (PX 4; RX 10, 11), on May 29, 1998, Respondent issued Petitioner a Notice of Involuntary Administrative Salary Offsets under the Debt Collection Act seeking payment of $2,421 (PX 1).
14. Petitioner filed a timely request for hearing, challenging collection of the debt.
DECISION
Under ISM 155.52 (Finding 11), Petitioner will be held liable for the loss of the radio if it occurred through his negligence, and it is Respondent’s burden to demonstrate that Petitioner was negligent in securing the radio and that his negligence was the proximate cause of the loss. See Brad A. Noble, P.S. Docket No. DCA 95-206, November 8, 1995. Respondent argues that Petitioner is strictly liable for the radio’s loss because when he left his vehicle, the radio could be seen through the vehicle’s windows, which, according to Respondent, constitutes leaving the radio in "open view" within the meaning of ISM 155.52. However, the evidence in the record does not indicate the position of the radio when Petitioner left his car, and thus it is not possible to conclude how visible the radio was from the outside. Petitioner did not remember whether the radio was in an upright or horizontal position. If horizontal, the radio would not have been visible at all from the driver’s side (the side of the car forcibly entered by the thief) and only partially visible from the front windshield on the passenger side (Finding 4). Therefore, Respondent has not shown that the radio was in "open view." 1/ Additionally, if the radio had been placed in the center console, the closest place of concealment at hand, it likely would have been stolen anyway as the center console was rifled and at least one item was stolen from that compartment (Finding 8).
Petitioner parked his car in a busy, public parking lot, in daylight, locked the car and was gone for only a short time. There was no evidence that the parking lot where he left the car was known to be unsafe, and the radio was not shown to have been left in open view. Under these circumstances, Respondent has not shown that Petitioner was negligent in securing the radio.
Under the circumstances of this case, Petitioner is not liable for the cost of the stolen radio. The Petition is sustained.
Norman D. Menegat Administrative Judge