Appeal of
BONNIE DOLIN
Under Contract No. HCR 25179
PSBCA No. 2394
APPEARANCE FOR APPELLANT
Belinda S. Morton, Esq.
APPEARANCE FOR RESPONDENT
Deborah A. Davis, Esq.
OPINION OF THE BOARD
Bonnie Dolin (Appellant) has filed an appeal from a decision of a Contracting Officer terminating for default her highway transportation contract with the United States Postal Service (Respondent). The issue presented on appeal is whether the contract was properly terminated for default for obstruction and theft of the mail.
FINDINGS OF FACT
1. On
2. The contract contained the United States
Postal Service "Basic Surface Transportation Services Contract General
Provisions" PS Form 7407 (Oct., 1986) (AF, Tab N at 35-44). General Provision 4, "Service
Requirements and Prohibitions," required Appellant to carry all mail
"with certainty, celerity, and security" and to "protect the
mail from loss, depredation or damage" (AF, Tab N at 36, ¶¶4(a) & (c)). General Provision 8, "Accountability of
the Contractor," made Appellant accountable for "loss, rifling,
damage, wrong delivery, depredation upon and other mistreatment of mail . . . ." (AF, Tab N at 40, ¶8(c)).
3. The "Termination by the Postal Service
for Default" clause, General Provision 16(a), provided that the
Contracting Officer could terminate the contract for default:
"(1) for
Contractor's failure to perform service according to the
terms of the contract;
(2) if the Contractor is
the subject of administratively determined
violations of the Postal
laws and regulations and other laws related
to the performance of
the service;
* * *
: (6) for the Contractor's
failure properly to account, deliver, and pay
over moneys, mail and
other property pursuant to Clause 8 of this
contract" (AF Tab N
at 42-43).
4. Although Appellant had been performing work
on the route for another contractor since 1974, she began performance of the
route on a full-time basis in 1985 and under her renewal contract on
5. As part of a program to routinely monitor the
mail, Postal Inspectors at
6. On
7. On
8. Appellant delivered the mail on her route on July 23, but did not return any of the test mailings to the Seth Post Office (Tr. 11-12 & 17). After completing her route, Appellant dropped off her mail bags at the Seth Post Office, locked the post office door and returned to her truck. While seated in her truck, Postal Inspectors approached Appellant and observed the first class test mailings on the front seat of her vehicle (Tr. 11-12, 23-24, 69 & 86-87). Two of the first class mailings, one letter and the parcel, had been rifled and were lying open in plain view on the front seat of Appellant's truck. The cash contents of the opened letter were not in the envelope (Tr. 11-1, 69 & 87).
9. On
Decision
Appellant admitted at the hearing that she opened controlled first class mailings and took and cashed bearer rebate checks contained in those mailings to purchase gas for her truck. Appellant however contends that the Postal Service is estopped from terminating her contract since her supervisors had voluntarily and repeatedly given her undeliverable mail and advised her that such mail could be kept for her own use. Appellant further claims she is excused from opening and taking mail because she never received formal training or instruction on the procedures for handling undeliverable mail. Finally, Appellant contends Postal Inspectors violated her constitutional rights by subjecting her to an unreasonable search and seizure and then coercing her into making a confession.
Appellant
has not established that her conduct was excusable or that any other basis
exists for finding the termination for default improper. Under the terms of her contract, Appellant
was required to carry all mail with "certainty, celerity and
security" and the Contracting Officer was authorized to terminate for
default for loss, rifling or other depredation of the mail. Appellant's appropriation of first class mail
for her own use justifies the Contracting Officer's determination to terminate
the contract for default. See, e.g.,
Karen L. Wilson, PSBCA No. 194, 86-3 BCA ¶19,256 at 97,389; Francine E. Fekkers, PSBCA No. 1259, 84-3 BCA
¶17,557 at 87,476.
Although Appellant contends the evidence supporting the termination for default was tainted by an unreasonable search and seizure and a coerced confession, there is ample additional evidence to support the termination action. Moreover, the Board is not persuaded that the mailings found on the front seat of Appellant's truck were the product of an unreasonable search and seizure[1] or that Appellant's confession was coerced.[2]
Although
Appellant claims she was told by Postal Service supervisors she could have
undeliverable mail, we are not persuaded she was ever told she could take and
open any first class mail. In addition,
Postal Service employees are not authorized to take for themselves or to
authorize others to take mail for their own use. See 39 C.F.R. §447.25 and 18 U.S.C. §§1701-170333
& 1708. Thus, even if Appellant was
told she could take the mail, Respondent cannot be estopped from terminating
the contract for default since Respondent is not bound by the unauthorized acts
or representations of its employees. See
OPM v.
Appellant's contention that she received no training or instruction on the handling of undeliverable mail does not excuse her failure to perform in accordance with the terms of her contract. Even in the absence of such training, it was not reasonable for Appellant to believe she was entitled to take undeliverable first class mail for her own use.
Appellant's contract was properly terminated for default. Accordingly, Appellant's appeal from the Contracting Officer's decision terminating her contract for default is denied.
James A. Cohen
Administrative Judge
Chairman
I concur
James D. Finn, Jr.
Administrative Judge
Vice Chairman
David I. Brochstein
Administrative Judge
Board Member
[1] Appellant's
Fourth Amendment rights were not violated by the search and seizure conducted
by the Postal Inspectors since the opened letter and parcel were in plain view
of the Inspectors who had probable cause to believe that a crime had been
committed by Appellant. See Arizona
v. Hicks, 480
[2] Prior to the
hearing, Appellant objected to the inclusion of the confession in the appeal
file. The Board reserved ruling on the
admissibility of the confession, but Respondent did not thereafter attempt to
introduce the confession into evidence.
Accordingly, the Board did not consider the confession to be a part of
the evidentiary record and did not rely on the confession in arriving at its
decision. See Arizona v.
Fulminante, ___U.S.___ 113 L.Ed.2d 302, 329-333 (1991).