Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Disciplinary System

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

INTRODUCTION The Department of Justice’s (Department) Office of the Inspector General (OIG) conducted this review to assess the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) disciplinary system. This is the fourth in a series of OIG reviews of the Department components’ disciplinary systems.1 In this review, we examined the consistency and reasonableness of the reporting and investigation of alleged misconduct, adjudication of misconduct cases, and implementation of the discipline imposed by the ATF. We also reviewed the timeliness of the ATF’s disciplinary system for processing misconduct cases. We examined the case files for 230 closed ATF employee misconduct cases from fiscal year (FY) 2002 through FY 2004, reviewed discipline-related policies and procedures, interviewed ATF officials, and surveyed 860 ATF employees. Finally, at the request of the ATF, we also evaluated a pilot project intended to improve the adjudication of misconduct cases. All ATF employees are required to promptly report any allegations or information concerning misconduct to the ATF Investigations Division. After the alleged misconduct is reported, the ATF uses one of two separate processes to investigate and adjudicate the allegation – a centralized process intended to address more serious misconduct and a decentralized process intended only for minor misconduct.2 In the centralized process, allegations of misconduct are investigated by the ATF Investigations Division or the OIG, which document the results in a formal report of investigation. The report of investigation is reviewed by the ATF’s Professional Review Board, which proposes a letter of clearance or discipline consistent with discipline proposed in similar past cases. Since June 2003, the ATF has been operating a pilot project, under the centralized process, in which final decisions on proposed discipline have been made by the “Bureau Deciding Official.” Prior to June 2003, the Professional Review Board proposed discipline and local managers made the final decisions. Of the 230 disciplinary case files we reviewed, 154 were investigated and adjudicated under the centralized process (77 by the Bureau Deciding Official and 77 by local management officials). In contrast to the centralized process for more serious misconduct, minor misconduct is handled through the decentralized process in which local managers are responsible for investigating and adjudicating allegations of misconduct. The ATF’s Employee Labor Relations Team (ELRT) provides support and advice to the local managers in these cases. Of the 230 disciplinary case files we reviewed, 76 were investigated and adjudicated under the decentralized process. Under both processes, any discipline that involves suspension, reduction in pay, or removal is documented on an Office of Personnel Management Standard Form-50 (SF-50) that is permanently retained in the employee's official personnel folder. RESULTS IN BRIEF Our review found deficiencies in the reporting, investigation, adjudication, and implementation of the ATF’s disciplinary system that reduce its ability to ensure that misconduct is consistently, reasonably, and timely addressed.3 Specifically, we found that misconduct was not always properly reported, and misconduct investigations handled in the decentralized process were not thorough. We also found that errors in the ATF’s disciplinary database reduced the reliability of the database for use in identifying prior discipline imposed in similar cases. In some cases, the ATF could not demonstrate that the discipline imposed had been implemented. Further, the ATF has not established standards to measure the performance of the timeliness of disciplinary actions. Even so, the average time the ATF took to investigate and adjudicate misconduct cases was within the range of the processing times for the other three Department components we have reviewed. Our findings are discussed in greater detail below. Reporting and Investigation of Misconduct Allegations We found that ATF employees did not consistently report allegations of misconduct to the ATF Investigations Division, as required by ATF Order 2130.1. We also found that the ATF did not consistently report allegations of misconduct to the OIG, as required. In response to our employee survey, 75 out of 345 respondents stated that they had observed misconduct that they did not report to the Investigations Division or the OIG. We also found that in 59 of 230 disciplinary case files we reviewed, the allegations of misconduct were not reported to the ATF Investigations Division. Instead, these allegations of misconduct were reported to local managers or ELRT staff. In addition, of the 230 case files we reviewed, 47 misconduct allegations were not reported to the OIG for review as required. Six of the cases that were not reported to the OIG involved allegations of serious misconduct, but these cases were investigated and adjudicated through the decentralized process without the benefit of a review by the ATF Investigations Division or the OIG. We also found that the ATF did not thoroughly investigate each allegation of misconduct. Our review of the case files for the 76 cases handled under the decentralized process found no evidence of any investigation having been conducted in 16 of the files. Documentation in the remaining 60 files appeared inadequate to ensure a reasonable investigative result. An ELRT specialist we interviewed stated that there are no standards or guidance for the decentralized investigative process. In contrast, all of the 154 misconduct allegations investigated under the centralized process resulted in formal reports of investigation. We reviewed 17 of these reports and concluded that these investigations were thorough and complete. Adjudication of Misconduct Cases We found that the ATF did not reasonably and consistently adjudicate misconduct cases. Under the decentralized process, a local manager can propose and decide the penalty for the same case.4 This occurred in 13 of the 76 decentralized cases we examined. We believe that allowing the same local manager to propose the discipline and decide the penalty for a case removes the checks and balances necessary to ensure reasonable results. The ATF has not established a time limit on the consideration of prior misconduct in adjudicating discipline cases. This results in inconsistent consideration of prior misconduct to adjudicate the penalty for new misconduct. For example, in one case, the proposing official considered misconduct that resulted in discipline 6 years prior to the current misconduct. In another case, the proposing official did not consider prior misconduct that resulted in discipline less than 2 years before the new misconduct. In contrast, each of the other three Department components whose disciplinary systems we reviewed have established time periods to ensure that the consideration of prior misconduct is consistent. We also identified errors in the ATF's disciplinary database that reduced the ATF’s ability to identify accurately discipline imposed in similar prior cases. The ELRT and the Professional Review Board rely on the database to identify discipline imposed in similar prior cases to ensure consistency. However, we found that in 52 of 230 disciplinary case files we reviewed, the charge or discipline recorded in the case file (specifically in the proposal and the decision letters) did not match the charge or discipline recorded in the ATF’s disciplinary database. As a result, the data on prior misconduct cases used as part of the ATF’s process for determining proposed discipline was not always complete or accurate. Consequently, the ATF could not ensure the consistency or reasonableness of discipline proposed for similar misconduct. We also found that the ATF incorrectly categorized misconduct in some cases, which resulted in inconsistent disciplinary actions. In 31 of the 230 disciplinary case files we reviewed, an offense for which a specific charge was available (such as misuse of a government vehicle or granting prohibited persons access to firearms) was instead labeled as the non-specific offense "poor judgment." In addition, the ATF has no guidance to establish the specific types of misconduct that may be included in the broad charge of poor judgment. Because less stringent penalties were imposed for the general offense category of “poor judgment,” we found that in some cases individuals who committed similar misconduct received inconsistent discipline. The deciding official has the authority to mitigate (reduce) the proposed discipline based on the applicable Douglas Factors or information in the response to the proposed discipline provided by the employee.5 We found that the ATF’s deciding officials mitigated proposed discipline in 38 of the 230 disciplinary case files we reviewed. However, in 21 of those 38 mitigations, the deciding official did not adequately detail the reasons for mitigating the proposed discipline in the decision letter, as required. This occurred under both the centralized process (18 cases) and the decentralized process (3 cases). Because the deciding official did not adequately document the reasons to mitigate the proposed discipline, we could not assess whether the reductions were reasonable. Implementation of Discipline Imposed The ATF could not demonstrate that the discipline imposed in the decision letter had been carried out in every case. Discipline that includes suspension, reduction in pay, or removal ordered by a local deciding official or by the Bureau Deciding Official is implemented with an SF-50 that is permanently retained in the employee's official personnel folder. However, the ATF could not provide the required SF-50 in 14 cases, involving 12 suspensions and 2 removals. Consequently, the ATF could not demonstrate that the employees had been disciplined or that the employees’ pay had been withheld for the 12 suspension cases. Although the ATF did not provide SF-50s for the two cases involving removals, we subsequently verified, with the assistance of an ATF official, that the two employees had been removed from service. Timeliness of the ATF’s Disciplinary System Overall, the ATF has not established timeliness standards or goals to measure the performance of its disciplinary system. However, we found that the average time the ATF took to process misconduct cases was within the range of the average time for the other three Department components whose disciplinary systems we have reviewed. The ATF averaged 277 days to investigate and adjudicate allegations of misconduct. In comparison, the Federal Bureau of Prisons averaged 198 days and the Drug Enforcement Administration averaged 334 days. Review of the Bureau Deciding Official Pilot Project At the request of the ATF, we also reviewed the pilot project it has operated since June 2003 to assess whether using a single Bureau Deciding Official improved the consistency, reasonableness, and timeliness of disciplinary decisions under the centralized process. We concluded that discipline imposed by the Bureau Deciding Official was more consistent, reasonable, and timely than the discipline imposed by local managers. While the Bureau Deciding Official ensured consistency with his prior decisions in all similar ATF cases, local managers were required only to ensure consistency with their own prior decisions, not with decisions made by other numerous managers located throughout the ATF. Thus, we found that the Bureau Deciding Official (one individual) is more likely to produce consistent decisions. Additionally, we found that the Bureau Deciding Official’s decisions were more reasonable and timely. The Bureau Deciding Official more thoroughly documented his reasons for mitigating proposed penalties. Prior to the pilot project, local mangers reduced the proposed penalty in 15 of 77 cases without adequately documenting the reasons for the mitigation in their decision letters. The Bureau Deciding Official reduced the proposed penalty in only 3 of 77 cases without adequate explanation in the decision letter. The Bureau Deciding Official also adjudicated his cases more quickly, averaging 63 days from proposal to decision, compared to the local managers’ average of 111 days. CONCLUSION AND RECOMMENDATIONS We concluded that improvements are needed to address the problems we found in the ATF’s disciplinary system. The ATF did not ensure that all misconduct was properly reported and thoroughly investigated. The documentation and tracking of misconduct cases was incomplete and inconsistent, which prevented the ATF from ensuring that consistent penalties were proposed. In addition, the decision to mitigate proposed discipline was not always sufficiently justified, and the implementation of penalties for misconduct was not always documented. Because of these deficiencies, we concluded that the ATF system is less effective than it should be for ensuring that discipline is consistent and reasonable. Although the ATF lacks timeliness goals or standards to measure the discipline system’s performance, the average time the ATF took to investigate and adjudicate misconduct cases was within the range of the average processing times of other Department components we have reviewed. Based on our review of the ATF’s pilot project using a Bureau Deciding Official, we believe that the use of the single official would produce more consistent, reasonable, and timely disciplinary results, and that establishment of a permanent Bureau Deciding Official is warranted. To help improve the ATF’s disciplinary system, we make nine recommendations. We recommend that the ATF: Remind all employees on an annual basis, particularly local managers and ELRT staff, that any allegation or information concerning misconduct must be promptly reported to the ATF Investigations Division or the OIG. Require that all investigations of alleged misconduct be conducted or reviewed by the ATF Investigations Division before the misconduct case can be adjudicated. Properly categorize misconduct to accurately reflect the underlying misconduct, rather than applying generic charges such as “poor judgment.” 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. Require that each decision letter that reduces the proposed discipline adequately document the reasons for the mitigation. Establish a time period for how far back prior discipline should be considered. Prohibit the same individual from serving as the proposing and deciding official for the same misconduct case. Establish policies and procedures, including management reviews, to ensure that discipline imposed is consistently implemented. Establish time standards and performance measures for the investigation and adjudication phases for the centralized and decentralized disciplinary processes. Footnotes The three previous OIG reports are Review of the Federal Bureau of Prisons’ Disciplinary System, I-2004-008, September 2004; Review of the Drug Enforcement Administration’s Disciplinary System, I-2004-002, January 2004; and Review of the United States Marshals Service Discipline Process, I-2001-011, September 2001. Although the ATF does not define serious or minor misconduct, based on ATF Orders 2130.1, 2750.1C, and 8610.1A, we understand more serious misconduct to include theft of government property, misconduct related to attendance or leave (such as false statements or fraud), and misuse of government-owned vehicles. In contrast, minor misconduct includes tardiness for work, insubordination, and failure to complete work assignments. The ATF refers to more serious misconduct as “integrity issues.” We defined timeliness as whether policies and procedures in place ensured timely disciplinary results and how often the disciplinary system met formally established time and performance standards. We defined consistency as whether the policies and procedures in place were followed; whether the disciplinary system processed similar misconduct cases using uniform standards; and whether the disciplinary system imposed uniform penalties for similar misconduct across the ATF and within the same location. We defined reasonableness as how thorough the investigations and adjudications appeared; how objective and independent the process for investigating and adjudicating misconduct cases appeared; and how logical or appropriate the penalties for the misconduct appeared. This can only occur for cases resulting in discipline of a 14-day suspension or less. The 12 Douglas Factors can be used to mitigate a proposed penalty and include information such as the employee’s past disciplinary record and the nature and seriousness of the offense. For example, a long-term employee with no prior disciplinary history and an excellent performance record may receive a mitigated penalty, while an employee committing the same offense who has been disciplined previously and has a poor work record would not. See Appendix I for a description of the Douglas Factors.