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6200 Determination of Liability

DFPS Asset Management Handbook December 2013

A DFPS employee may be held financially liable for the value of lost, damaged, or stolen property, if the IT director of field operations determines that the employee responsible for the property was negligent in exercising reasonable care and custody of the property.

6210 Determinations of Employee Conduct

DFPS Asset Management Handbook December 2013

Purposeful action – The actor purposefully committed an act, expressly intending the resulting harm; for example, an employee sold DFPS-owned equipment for personal gain.

Knowing or willful conduct – The actor knew that an act would certainly result in harm, but did not specifically intend to commit the particular harm that resulted; for example, an employee throws DFPS equipment in anger and damages the equipment.

Reckless conduct – The actor knew that the act had an unjustifiable risk of leading to a certain result, but did not care about that risk (referred to as reckless disregard), and acted anyway; for example, an employee leaves a Tablet PC unattended in a public area, resulting in its theft. Reckless conduct is functionally equivalent to gross negligence.

Negligent conduct – The actor did not intend to cause the result that happened, but failed to exercise reasonable care to prevent the result. Negligent conduct includes failing to become aware of the risk of that result. Below are a few examples of incidents that are considered to be negligent. The list is not all inclusive.

  •  Example 1: An employee leaves DFPS equipment in an unlocked vehicle, resulting in its theft.

  •  Example 2: An employee leaves mobile equipment in a vehicle overnight (this applies even if the equipment is locked in the trunk).

  •  Example 3: An employee leaves mobile equipment visible in a vehicle when the employee is not present.

  •  Example 4: An employee is curious about the configuration of a Tablet PC’s hardware, so the employee dismantles the PC, resulting in damage.

6211 Factors Considered When Determining Negligence or Liability

DFPS Asset Management Handbook February 2011

Factors the IT DFO may consider when determining negligence or liability include the following:

  •  What procedures were in place to safeguard the property and were these procedures violated?

  •  Was the loss reported immediately?

  •  What actions or omissions of others contributed to the loss?

  •  Was the property being used only for state purposes?

  •  Who signed for the property and who had physical custody at the time of the loss?

  •  Did the employee demonstrate reasonable care of the property?

  •  Could the loss have been avoided, and if so, how?

6220 Notifying the HHS Office of Inspector General of Negligence Finding

DFPS Asset Management Handbook February 2011

If the IT DFO reasonably believes that the property was lost, damaged, or destroyed due to the negligence or fault of a DFPS employee, the DFPS property manager requests that the HHS Office of Inspector General review the circumstances and gather additional information.

The DFPS property manager does this by notifying the:

  •  HHS Enterprise Security office; and

  •  DFPS IT Security officer.

Investigation staff provide findings and recommendations to the:

  •  DFPS General Counsel; and

  •  Internal Audit.

6230 Notifying the Employee of Negligence Finding

DFPS Asset Management Handbook February 2011

The DFPS property manager also provides notice in writing to the employee and demands restitution by a specified date. The reimbursement amount is based on the market value of the asset. The employee has 30 calendar days, from receipt of notification by the DFPS property manager, to reimburse DFPS.

If an employee is declared negligent or otherwise at fault, but refuses to reimburse the state, the DFPS Accounting Office:

  •  sends a second letter to the employee demanding reimbursement; and

  •  refers the case to the Office of the Attorney General for collection by the comptroller’s office.

If the employee believes DFPS’s finding of negligence is not justified, the employee must appeal, in writing, to the DFPS property manager and chief operating officer, or designee, no later than 10 calendar days after receipt of the notification.

6240 Appeals Process

DFPS Asset Management Handbook February 2011

When an employee files an appeal of a negligence determination, the employee must provide additional documentation supporting the employee’s position that all reasonable care was exercised during the safekeeping of the state property.

Upon receipt of an employee’s appeal, the DFPS property manager requests assistance from the Texas Attorney General’s office in:

  •  reviewing the documentation; and

  •  making a final recommendation.

The Attorney General’s office will either:

  •  concur with the property manager’s determination of liability; or

  •  change the determination of liability.

If the Attorney General confirms the property manager’s determination that the property loss was sustained through employee negligence, the Attorney General makes a second written demand to the employee for reimbursement of the loss.

If the second demand for reimbursement is refused or disregarded, the Attorney General may take legal action to recover the value of the property.

If the Attorney General determines that the employee was not negligent, the DFPS property manager must notify the employee, in writing, within 10 calendar days from receipt of the Attorney General’s findings, that the employee is no longer responsible for reimbursement.

6300 Final Disposition

6310 If Missing or Stolen Property Is Found

DFPS Asset Management Handbook February 2011

If the missing or stolen items are found, the regional director, or division director notifies DFPS Asset Management unit.

DFPS Asset Records Support:

  •  removes the items from the missing and stolen property central record;

  •  reinstates the asset in the property accounting system; and

  •  notifies the OAG that the property is no longer missing and informs the applicable local police department.

6320 Missing Property Not Recovered

DFPS Asset Management Handbook February 2011

If the missing or stolen items are not located or recovered within two years, Asset Records Support will remove the assets from property records in accordance with SPA.

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