Review of the Federal Bureau of Prisons' Disciplinary System

Report Number I-2004-008
September 2004

APPENDIX IV: OIG ANALYSIS OF BOP'S RESPONSE

On August 17, 2004, the Office of the Inspector General (OIG) sent copies of the draft report to the Director of the Federal Bureau of Prisons (BOP) with a request for written comments. The Director provided the final written comments to us in a memorandum dated September 15, 2004.

The BOP fully concurred with seven of the ten recommendations and generally concurred with two other recommendations, but expressed "strong reservations as to [the] implementation" of the remaining recommendation. This recommendation called for the removal of the Chief Executive Officer (CEO) from reviewing and approving investigative reports of employee misconduct for cases in which the CEO also would act as the deciding official. The OIG made this recommendation to help ensure the independence of the investigative and adjudicative phases of the disciplinary process and to reduce the potential for unreasonable disciplinary decisions. The BOP stated that it would prefer to "explore and possibly pilot alternative review processes." However, it remains the OIG's position that independent investigative and adjudicative phases are crucial to maintaining the checks and balances essential to an effective disciplinary system. The BOP needs to implement an alternative review process in which the CEOs do not both review and approve investigations as well as act as the deciding official.

Following is an analysis of each BOP response to the report's ten recommendations.

RECOMMENDATIONS

Recommendation 1: Reinforce the existing policy that BOP employees report allegations of employee misconduct to the proper authorities as required.

Summary of BOP's Response: The BOP concurred with this recommendation. The BOP will incorporate this finding and recommendation in the next annual training cycle and other training programs that discuss ethics and standards of conduct. In addition, the Office of Internal Affairs (OIA) is developing a training video that will address this finding.

OIG's Analysis: The actions described by the BOP are responsive to our recommendation. By December 1, 2004, provide the training materials that show how the finding and recommendation will be incorporated into future training sessions or a status report on when the materials will be completed. In addition, by December 1, 2004, provide a copy of the OIA training video or a status report on when it will be completed.

Recommendation 2: Require that CEOs forward cases with sustained allegations through the full adjudicative phase.

Summary of BOP's Response: The BOP concurred with this recommendation. The BOP plans to publish instructions for all CEOs requiring each sustained misconduct case to be fully adjudicated. However, the BOP is allowing an exception to this requirement. The CEOs will have the option of selecting sustained cases that, in their opinion, do not warrant disciplinary or adverse action. These cases, along with the CEO's justification for this action, will be submitted to the Labor Management Relations Branch (LMR) for its review. The BOP response also indicated that the LMR, after completing its case review, will recommend to "Bureau management" whether disciplinary or adverse action is warranted or will recommend that the case be resolved through performance evaluation procedures.

OIG's Analysis: The actions described by the BOP are responsive to our recommendation. However, we believe that the instructions to the CEOs implementing this recommendation must be comprehensive. For example, the instructions should identify by position the "Bureau management" official(s) who will review the LMR recommendations. Further, the instructions should specify that the "Bureau management" official(s), and not the CEO who initiated the review, will make the final decision on whether or not a case will be fully adjudicated. Finally, similar instructions need to be issued to the LMR, given its expanded role in this revised review process. By December 1, 2004, provide copies of the CEO and LMR instructions or a status report on the progress of their completion.

Recommendation 3: Ensure that when the deciding official mitigates the proposed discipline, the decision letter contains an adequate explanation of the reasons.

Summary of BOP's Response: The BOP concurred with this recommendation. The BOP will issue a reminder to all parties involved with the preparation and technical approval of disciplinary and adverse action letters that adequate explanations involving mitigation must be documented.

OIG's Analysis: The actions described by the BOP are responsive to our recommendation. By December 1, 2004, provide a copy of the formal reminder or a status report on when it will be completed.

Recommendation 4: Remove the CEOs from reviewing and approving investigative reports of employee misconduct for cases in which they will act as the deciding official by implementing an alternative review process that preserves the independence of the investigative and adjudicative phases.

Summary of BOP's Response: The BOP stated that while this recommendation needed to be explored, it had strong reservations as to its implementation. The BOP also asked that the OIG consider rewording the recommendation to state: Explore alternative review processes that preserve the independence of the investigative and adjudicative phases. The BOP response further stated that it wants to "explore and possibly test alternative processes" because any meaningful departure from the current method would require: 1) a major realignment of existing functions, 2) a concurrent investment in staffing numbers when the BOP is facing potential downsizing issues, and 3) a significant shift in the authority structure over local investigations. The BOP stated that any attempt to implement this recommendation will require "much additional research and thought."

OIG's Analysis: The actions described by the BOP are partially responsive to our recommendation. The OIG has taken into account the concerns that the BOP presented above. However, the CEOs' involvement in both the investigative and adjudicative phases of a disciplinary system can affect the independence of the two phases and the overall disciplinary system. The OIG does not believe it is appropriate to change the recommendation, and the recommendation is unresolved. By November 1, 2004, provide a plan and schedule for how the BOP will explore and test an alternative investigative review process that leads to final implementation of a policy for ensuring the independence of the investigative and adjudicative phases.

Recommendation 5: Reinforce the existing policy that all required documents be maintained in the disciplinary files.

Summary of BOP's Response: The BOP concurred with this recommendation. The BOP will provide a memorandum to the field reinforcing the requirement that all documents used to support disciplinary actions be maintained in the appropriate files. Also, the BOP stated that this issue will be reviewed when program reviews are conducted at institutions and facilities.

OIG's Analysis: The actions planned by the BOP are responsive to our recommendation. By December 1, 2004, provide a copy of the memorandum and the instructions developed to assess this issue during internal program reviews or a status report on when the memorandum and the instructions will be completed.

Recommendation 6: Develop procedures to ensure that discipline is imposed consistently BOP-wide, and review discipline for consistency across the agency periodically after these procedures are implemented.

Summary of BOP's Response: The BOP concurred "with the position that discipline imposed should be consistent assuming all facts are the same, including position and security level of the institution." The BOP stated it would take the following actions to address the recommendation. The BOP will: 1) review prior case law and actions taken to assess the appropriate range of penalties for specific charges, 2) review the need to modify its Table of Penalties to ensure that penalties fall within the national range, 3) complete a formal review of past misconduct cases to determine the appropriate range of penalties for a given charge, and 4) develop procedures to ensure that each sanction is reviewed for consistency by LMR and Regional Human Resources staff.

OIG's Analysis: The actions planned by the BOP are responsive to our recommendation. The OIG does not suggest that "exact consistency" should be the goal or can ever be achieved, because of unique factors that apply to each case. In our report, we describe consistency as being attained when similar discipline is imposed for similar misconduct and circumstances on a BOP-wide basis. By December 1, 2004, provide: 1) the results of the review of prior case law and actions to assess the appropriate range of penalties for specific charges, 2) the review of the need to modify the Table of Penalties, 3) a copy of the formal review of past misconduct cases for determining the appropriate range of penalties for a given charge, and 4) a copy of the procedures ensuring that each sanction is reviewed for consistency by LMR and Regional Human Resources staff, or a status report on when each of the documents will be completed.

Recommendation 7: Reinforce the existing policy that CEOs report allegations of employee misconduct to the OIA within required time frames.

Summary of BOP's Response: The BOP concurred with this recommendation. The BOP will issue a "Blue Letter" reinforcing existing policy. In addition, the BOP will incorporate this finding and recommendation in future Wardens' conferences and New Wardens' Training.

OIG's Analysis: The actions planned by the BOP are responsive to our recommendation. By December 1, 2004, provide a copy of the Director's Blue Letter or a status report on when it will be issued.

Recommendation 8: Reinforce the existing policy that the OIA report misconduct allegations to the OIG within required time frames.

Summary of BOP's Response: The BOP concurred with this recommendation. The BOP stated that it has completed a realignment of staff functions resulting in the improved timeliness of referrals to the OIG.

OIG's Analysis: The actions taken by the BOP are responsive to our recommendation. By December 1, 2004, provide documentation detailing the realignment of functions and how it has improved timeliness.

Recommendation 9: Establish written time guidelines for the investigative and adjudicative phases of the disciplinary system.

Summary of BOP's Response: The BOP generally concurred with this recommendation. However the BOP had reservations and proposed an alternative. The BOP stated that three issues need to be considered before it would accept the recommendation as stated. The first issue is the impossibility of anticipating the unique factors that can occur in a case and impede the case's progress. The second issue is the "potential risks" and "land mines" posed by the formal establishment of time guidelines when defending disciplinary actions. The third issue is the role that participating outside law enforcement entities and courts can have on the timeliness of a case. As a result of these issues, the BOP proposed its own internal time "expectations" for investigative work. The upper limits would be 120 days for local investigations and 180 days for OIA investigations. The BOP also said that it would establish an upper limit for completing the adjudication of misconduct cases at 120 days.

OIG's Analysis: The actions planned by the BOP are responsive to our recommendation. The upper limits proposed appear reasonable as a starting point to measure and evaluate its current capacity to investigate and adjudicate misconduct cases more efficiently. Other Department entities reviewed by the OIG either had in place or as a result of OIG recommendations implemented similar time frames. By December 1, 2004, the BOP should provide the guidance it will issue to local investigators and Human Resources staff at institutions and facilities, the Human Resources staff at Region offices, and OIA and LMR staff that details the establishment and application of these time frames, or a status report on when the guidance will be completed.

Recommendation 10: Require that the BOP Program Review Division periodically review a sample of closed disciplinary case files to assess whether the disciplinary decisions were reasonable, consistent, and timely.

Summary of BOP's Response: The BOP concurred with this recommendation. The BOP stated that it will revise its Program Review Guidelines to include a review of closed disciplinary case files. The target date for implementation is December 31, 2004.

OIG's Analysis: The actions taken by the BOP are responsive to our recommendation. By December 1, 2004, provide a copy of the revised Program Review Guidelines or a status report on when the revision will be completed.