Review of the Bureau of Alcohol, Tobacco, Firearms and Explosivesí Disciplinary System

Evaluation and Inspections Report I-2005-009
September 2005
Office of the Inspector General

Appendix II

ATFíS Response to Draft Report

  U.S. Department of Justice

Bureau of Alcohol, Tobacco,
Firearms and Explosives

Office of the Director

SEP 2, 2005
Washington, DC 20226


MEMORANDUM TO:     Assistant Inspector General for Evaluation and Inspections
FROM:     Director
SUBJECT:     Response to the Office of the Inspector General (OIG) Draft Audit Report: Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Disciplinary System, Assignment Number A-2004-014

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) appreciates the opportunity to respond to the recommendations from the OIG's above-cited draft report. We welcome constructive criticism of our programs as this independent review process typically helps us to improve our ability to plan and manage our resources more efficiently.

In general, ATF concurs with the findings and recommendations of your report and will address each recommendation in a corrective action plan. Our responses to your recommendations are as follows:

Recommendation #1: Remind all employees on an annual basis, particularly local managers and Employee and Labor Relations Team (ELRT) staff, that any allegation or information concerning misconduct must be promptly reported to the ATF Investigations Division or the OIG.

Response: We concur with this recommendation. All ATF employees are required to complete annual on-line training in the Standards of Ethical Conduct. We will request that the Office of Chief Counsel include a reminder in the ethics training course for all employees to comply with the reporting requirements specified in ATF Order 2130.1, Conduct and Accountability, and ATF Order 8610.1A, Internal and Other Investigations. ELRT regularly advises first-line supervisors of these requirements during the Leadership Skills for New Supervisors course, which is required training for all new supervisors. In addition, an annual announcement is issued via the ATF IntraWeb, entitled "Standards of Conduct Reminder," encouraging all employees to review A TF Order 2130.1 on at least an annual basis and refer questions to the ELR T. ELR T and the Office of Professional Responsibility and Security Operations (OPRSO) will study the need for an additional specific annual reminder to all employees on just the reporting requirements. We estimate completion of this process by November 1, 2005.

Recommendation #2: Require that all investigations of alleged misconduct be conducted or reviewed by the ATF Investigations Division before the misconduct case can be adjudicated.

Response: We concur with this recommendation. All ATF employees are required to report allegations of misconduct to the Investigations Division. We plan to establish a procedure for referral of allegations of misconduct under the decentralized procedure (i.e., requests for assistance referred directly to ELRT by supervisors) to the Investigations Division by use of e-mail messages. When a supervisor contacts an ELRT specialist for assistance, the specialist will instruct the supervisor to summarize the facts and circumstances of the misconduct in an e-mail to ELRT. The specialist will forward the e-mail to OPRSO for review, and OPRSO will determine if an investigation is necessary. If it is not necessary, OPRSO will return the matter bye-mail to ELRT for handling. Hard copies of all such e-mail communications will be retained by ELRT and the Investigation Division for review by the OIG. We will develop a written procedure for this by September 1, 2005.

Recommendation #3: Properly categorize misconduct to accurately reflect the underlying misconduct, rather than applying generic charges such as "poor judgment."

Response: We partially concur with this recommendation. In some cases, a specific charge can be used if the agency can prove all the elements of the offense. Such is the case when an enhanced penalty is established by statute, as in the example of willful misuse of a Governmentowned vehicle (GOV). However, in other cases of misconduct where the employee's improper conduct does not fit neatly into a specific charge or all of the elements of the specific offense might not be proved, use of a generic charge such as "poor judgment" is often more appropriate.

Use of generic charges like "poor judgment" can limit the elements that an agency must prove in order to sustain a charge at the MSPB. In those cases, to prove a more specific charge such as insubordination, an agency must not only prove that the employee was given a lawful order that the employee disobeyed, but also that the disobedience was willful and deliberate. A generic charge such as "poor judgment" would not require the agency to also prove "willfulness" but could sustain the same penalty. The narrative portion of the proposed action puts the employee on notice of exactly what misconduct the agency is alleging the employee committed (often spelling out, for example, insubordinate misconduct).

ELRT specialists and agency attorneys have been instructed at the National Advocacy Center (NAC) by instructors from the Justice Management Division (JMD) that use of a generic charge such as "poor judgment" is a preferred charge in other instances. This training at the NAC is consistent with the best practices that are taught in other courses and seminars presented by practitioners including MSPB administrative judges, who practice in this area of law. Better results are had as appropriate penalties are sustained by third parties while simultaneously lessening the agency's evidentiary burden. With all that said, the agency will specifically charge misuse of a GOV and similar offenses when agency counsel determines that all of the elements of the offense can likely be proved.

Recommendation #4: Establish data entry and quality control standards and procedures for all information entered in its automated disciplinary database and for all documentation collected and maintained in the disciplinary case files.

Response: We concur with this recommendation. We have determined that Standard Operating Procedures (SOPs) and a checklist for ELRT and PRE specialists to complete for each case are necessary to document compliance with data entry and case file standards. We estimate that the SOPs and the checklist can be completed by December 31, 2005. We will also review and better define the fields for data entry. In addition, during the OIG review, the PRE Chair indicated to the review team that he plans to conduct a comprehensive review of all of the PRE cases in the database for the last 5 years (approximately 500 cases), including the case files, to ensure that the information in the records is complete and accurate. This effort will exceed what was recommended in the report. The review of the 500 records will be completed within Fiscal Year 2006.

Recommendation #5: Require that each decision letter that reduces the proposed discipline adequately document the reasons for the mitigation.

Response: We concur with this recommendation. All specialists under both the centralized and decentralized disciplinary systems are expected to comply with this practice. The OIG draft report did not identify the particular cases wherein the decision letters failed to document the reasons for mitigation, so we cannot address those specific instances. In accordance with Douglas v. Veterans' Administration, all adverse action (i.e., suspensions exceeding 14 days, demotions, and removals) decision letters must include reference to the pertinent Douglas factors considered by the deciding official. Until a few years ago, we did not consistently apply this requirement to disciplinary actions of 14 days or less. We were instructed by JMD at the NAC to include discussion of mitigating factors in all decision letters. If the deficient letters referenced in the report were related to cases adjudicated more than a few years ago, this may be why they did not include the required language.

Recommendation #6: Establish a time period for how far back prior discipline should be considered.

Response: We partially concur with this recommendation. It is our understanding that the unwritten policy of JMD is that the "period of reckoning" for disciplinary actions is 4 years. 'Period of reckoning' is a term of art used in Federal personnel cases that describes how far back an agency will look to see if the employee in question had been disciplined for dissimilar misconduct. Of course, the agency can and should consider any prior discipline for the same or similar misconduct, including discipline more than a decade old. For example, the MPSB just recently upheld the removal of an ATF employee for the willful use of a government furnished automobile (GFA) for other than an official purpose and failure to report the discharge of the employee's firearm. In sustaining the removal, the MSPB, as did the Bureau Deciding Official when making his decision, relied on the employee's prior discipline for improper use of a GF A some 13 years before. The agency cannot agree to set a time period for how far back prior similar discipline will be considered. With that said, we do agree that the Bureau has not consistently applied a specific period of reckoning. This issue has been further complicated by the use of other periods by the ATF Assessment Center, the Merit Promotion Board, the National Response Team, the Special Response Team, and any other office or position which determined eligibility based partly on an employee's disciplinary record. In order to establish a consistent period of reckoning for discipline as well as the other periods used to determine eligibility discussed above, we must develop a proposal for review and approval by the A TF Executive Staff. We will complete a proposal for this by December 31, 2005.

Recommendation #7: Prohibit the same individual from serving as the proposing and deciding official for the same misconduct case.

Response: We concur with this recommendation. The official delegations of authority for proposing and deciding actions based on misconduct are established per ATF Order 1150.4, Delegation Order -Adverse Action and Discipline. Historically, the Bureau's policy and practice have been to propose and decide actions at the lowest supervisory level; however, having two different officials propose and decide is not prohibited under the order. Until ATF Order 1150.4 is revised, we can develop an ATF Brief in order to implement this particular change in policy. We will develop a draft brief by December 31, 2005. This change will also be incorporated into the forthcoming Bureau Deciding Official (BDO) order.

Recommendation #8: Establish policies and procedures, including management reviews, to ensure that discipline imposed is consistently implemented.

Response: We concur with this recommendation. Our response to Recommendation #4, above, is also applicable here. The SOPs and checklist will include steps taken to ensure full implementation of each action.

Recommendation #9: Establish time standards and performance measures for the investigation and adjudication phases for the centralized and decentralized disciplinary processes.

Response: We concur with this recommendation. The Bureau agrees that overall time standards and performance measures should be instituted for the investigation and adjudication phases of the centralized and decentralized disciplinary processes. It should be noted that the servicing specialists in ELRT have time lines and standards for handling disciplinary actions that are included as a part of the critical elements and standards for which they are held accountable and on which they are rated.

The Bureau has contracted with LMI to look at these and other personnel processes with an eye toward strengthening and improving their effectiveness and implementing new processes where needed. Personnel staff members have already begun to discuss task process with LMI and are in the process of gathering the information needed by LMI to begin drafting standard operating procedures (SOPs) and designing additional structures to address the issues raised by the IG as well as other concerns. It is anticipated that the process for setting up these procedures can be accomplished and the use of these processes implemented by December 31, 2005.

In conclusion, ATF has a history of excellence, an outstanding record that I look forward to continuing and expanding. I believe that professional integrity and character are core expectations for those of us in public service. This means that employees' actions, both personal and professional, should withstand public scrutiny and be beyond reproach. Therefore, every employee must be responsible for his or her actions. With such accountability come the dividends of integrity, respect, and public trust. I expect all employees to be exemplary in obeying the laws of the land as well as the Bureau's regulations.

If you have any questions regarding this response, please contact Ms. Carol Campbell, Audit Liaison, Office of Professional Responsibility and Security Operations, at (202) 927-8276.


Carl J. Truscott

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