June 24, 2002
In the Matter of the Petition by
GARY A. MICHALAK
8600 Evans Trail
at
Atlanta, MI 49709-9221
P.S. Docket No. DCA 02-108
APPEARANCE FOR PETITIONER:
Lovell Sims
3311 N. Saginaw Street
Flint, MI 48505-9998
APPEARANCE FOR RESPONDENT:
Edward J. Novak, Jr.
Labor Relations Specialist
United States Postal Service
200 W. Second Street
P.O. Box 9410
Royal Oak, MI 48068-9410
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Gary A. Michalak, filed a timely Petition for Hearing after receiving a Notice of Involuntary Administrative Salary Offsets from his supervisor on March 7, 2002.[1] The Notice is in the form of a denial of Petitioner's request for reconsideration of a Letter of Demand that had been issued to him earlier. The Notice stated the Postal Service's intention to withhold $2,035.00 from Petitioner's salary to recover the cost of replacing locks after Petitioner lost a master key to a Postal Service facility in Flint, Michigan.
Petitioner requested a hearing on written submissions. The parties were given time, including one extension of time, to submit additional evidence and argument, beyond that filed with the Petition and the Answer. Petitioner filed one witness statement and another document. Respondent filed nothing. The following findings of fact are based on all the material submitted by the parties.
FINDINGS OF FACT
1. Petitioner is a maintenance supervisor at the Flint, Michigan Processing and Distribution Center. On November 9, 2001, Petitioner sent an email message to his supervisor stating that he could not find his office keys, including the master key for the building. (Answer, Ex. 2).
2. On November 15, 2001, Petitioner's supervisor informed him by email that he would be held financially accountable for the cost of re-keying the facility if he did not find the keys. He did not find the keys and, on November 26, 2001, the Manager of Maintenance placed an order to re-key all the locks at the P&DC. The estimated cost was $2,035.00. (Answer, Exs. 2 and 3).
3. On December 6, 2001, Petitioner's supervisor issued Petitioner a Letter of Demand for $2,035.00. Petitioner requested reconsideration, which was denied in the letter dated March 4, 2001 (sic). (Answer, Exs. 5 and 7).
DECISION
In an Order dated April 19, 2002, Respondent was directed to supplement its Answer to state the basis for the alleged liability, i.e., was Respondent relying on a Postal Service Regulation, Manual, or other policy directive that makes an employee financially liable for costs such as are shown in this case. Respondent was also directed to state what standard of care Respondent believes applies, i.e., is Petitioner strictly liable for the loss of keys, is he liable if negligence is proved, or only if gross negligence or misconduct is proved. Respondent filed nothing that was responsive to this inquiry.
In a telephone conference with the parties on May 1, 2002, we discussed the requirement for the Postal Service to establish its basis for asserting financial liability against Petitioner on the facts of this case, and the applicable standard of care, as was noted in the Order of April 19. Respondent's representative was directed to address those matters in his submission of additional evidence and argument. As noted earlier, Respondent filed no additional evidence or argument.
The issue here is whether the Postal Service can hold an employee liable for costs caused by the loss of keys without a regulation that specifically provides for such liability. Some decisions of the Comptroller General of the United States are instructive.
"A government employee is not automatically liable for loss or damage to Government property, even if caused by his fault or negligence. (This question is separate and distinct from the agency's liability to anyone else). He may be held liable only if the agency has issued administrative regulations providing for such liability." 1983 Comp. Gen. 890.
"In this regard, we are mindful that there is no authority to assess pecuniary liability against a Government employee for losses resulting from his or her error in judgment or neglect of duty unless the agency has issued administrative regulations specifically providing for such liability. If the agency has regulations of this type, they are considered part of the employee's contract of employment. Thus, an employee may be held liable, but only if the agency has issued regulations to that effect. The regulations serve to put the employee on notice of the potential liability." 1987 Comp. Gen. 874.
As Respondent has cited no regulatory basis for liability in this case, and as I am aware of none, the Petition is granted. Respondent may not collect $2,035.00 from Petitioner's salary.
Bruce R. Houston