Review of the Federal Bureau of Prisons' Disciplinary System
Report Number I-2004-008
Federal laws and regulations governing the discipline of federal employees are found in the Civil Service Reform Act of 1978; Title 5, Code of Federal Regulations, Part 752, Adverse Actions; and 5 United States Code, Chapter 75, Section 7501-7504, 7511-7514. These laws and regulations establish the legal framework for federal agencies to address employee misconduct through disciplinary actions, such as suspensions, demotions, and removals. In addition to formal disciplinary action, agencies may also impose informal discipline, such as oral reprimands. According to Title 5, agencies may discipline employees "for such cause as will promote the efficiency of the service." In other words, an agency can impose discipline when an employee's misconduct interferes with the agency's ability to carry out its mission.
Agencies establish disciplinary systems to maintain orderly and productive work environments by communicating to employees the conduct that is not acceptable. An agency's table of offenses and penalties defines the actions that violate the standards of conduct and hinder the performance of its mission. The table of offenses also defines the range of discipline that the agency may impose when an employee commits misconduct. When an agency imposes discipline, it is conveying to the employee the need to recognize, correct, or improve substandard conduct.
Independent investigative and adjudicative phases maintain checks and balances within a disciplinary system. An equitable disciplinary system provides reasonable, consistent, and timely discipline to all employees without regard to external factors such as an employee's position, race, or gender.
Federal agencies have discretion in determining disciplinary penalties; the only requirement is that the penalty be reasonable. To help determine reasonability, in a 1981 decision the Merit Systems Protection Board (MSPB) established 12 factors, known as the "Douglas factors" (see Appendix I for a description of the factors), for agency officials to consider when determining disciplinary actions.2
The Douglas factors are used to either mitigate (reduce) or aggravate (increase) a proposed penalty when an employee commits an offense. For example, a long-term employee with no prior disciplinary history and an excellent performance record may receive a mitigated penalty compared with an employee committing the same offense who has been disciplined previously and has a poor performance record.
Employees who are suspended for more than 14 days, demoted, or removed have the right to appeal to the MSPB. In the 1981 Douglas decision, the MSPB established its authority to mitigate agency-imposed penalties that it determines are "clearly excessive, disproportionate to the sustained charges, or arbitrary, capricious, or unreasonable."3 The MSPB also stated that it would review penalties to determine whether the agency "exercised management discretion within tolerable limits of reasonableness" and modify penalties if it found that "the agency's judgment clearly exceeded the limits of reasonableness."4
Overview of BOP's Disciplinary System
The Federal Bureau of Prisons' (BOP) disciplinary system consists of two distinct phases: the investigative phase, when the BOP investigates alleged employee misconduct, and the adjudicative phase, when discipline is proposed and imposed for sustained misconduct allegations. The BOP's Office of Internal Affairs (OIA) in the Executive Office of the Director oversees the investigative phase. The Labor Management Relations (LMR) branch in the Human Resources Management Division oversees the adjudicative phase.
The primary personnel involved in the investigative phase are OIA investigators, local BOP investigators located at the institutions, and the Chief Executive Officers (CEOs). The OIA investigates allegations of employee misconduct and monitors and approves investigations conducted by local BOP investigators at the institutions. Currently, the OIA staff includes 29 positions (1 vacant) - 15 located in Washington, D.C. (the Chief of OIA, 1 Supervisory Special Agent, 8 investigators, and 5 support staff) and 13 located in Denver, Colorado (1 Supervisory Special Agent, 8 investigators, and 4 support staff). The local investigators - 129 Special Investigative Supervisors (SIS) and 48 Special Investigative Agents (SIA) - are assigned to institutions and Regional Offices and perform employee misconduct investigations referred by the OIA, as well as inmate misconduct investigations.5 The CEOs review and approve all investigations conducted at their institutions. According to BOP Program Statement 3420.09, Standards of Employee Conduct, the CEO is defined as the Warden at institutions, the Director at staff training centers, the Community Corrections Manager at community corrections offices, the Regional Director at Regional Offices, and the Assistant Director of each division at the Central Office. Investigations with sustained allegations generally cannot be adjudicated until the CEO and the OIA have approved the investigation.
The primary personnel involved in the adjudicative phase are the proposing officials, Human Resources (HR) staff at the institutions and the regions, LMR staff, and the deciding officials. The proposing officials propose discipline for misconduct allegations that were sustained in the investigative phase.6 The deciding officials, who determine and impose the discipline, are normally the CEOs of the institutions and other BOP offices and facilities. The HR staff at the institutions, with assistance from the regions, drafts the proposal letters, which inform the subjects of the proposed penalty, and decision letters, which inform the subjects of the penalty that will be imposed. The LMR staff (eight employee relations specialist positions in Washington, D.C., two of which are vacant, and five positions in Phoenix, Arizona) assists HR staff at the regions and institutions by providing technical advice and guidance, and reviewing and approving all proposal and decision letters. Institutions report to either of the two LMR offices, depending on their geographic location. The LMR also represents the BOP in third-party hearings (e.g., MSPB cases, arbitration, and grievance procedure cases).7
The Investigative Phase
BOP employees are required to report immediately to the CEO, the OIA, or the Department of Justice's (Department) Office of the Inspector General (OIG) any attempted or actual violation of the Standards of Employee Conduct, BOP regulations, or law. According to BOP Program Statement 1210.24, once a CEO becomes aware of the misconduct allegation, he or she must classify the allegation and report it to the OIA for review. This Program Statement also defines the three classifications of misconduct allegations.
The CEO must report Classification I or II allegations within 24 hours to the OIA on a Referral of Incident Form, along with any related documents (e.g., affidavits, photos, medical reports, memoranda). Classification III allegations are compiled and reported monthly.8 CEOs investigate Classification III allegations locally, using assigned SIS or SIA staff, prior to notifying the OIA, if the subject is a bargaining unit employee or is a non-bargaining unit employee at the GS-12 level or below. CEOs must notify the OIA prior to initiating any Classification III investigation involving non-bargaining unit employees at the GS-13 level or above.
After receiving the allegation, the OIA reviews the associated documents for completeness and correct classification. The OIA then forwards the allegation to the OIG for review.9 Classification I and II allegations must be reported to the OIG within 24 or 48 hours, respectively. Classification III allegations that are complex and may result in severe disciplinary action also must be reported to the OIG within 48 hours. All other Classification III cases must be reported to the OIG on a monthly basis.10 Depending on the seriousness of the allegation, the OIG determines whether to investigate the allegation or refer it back to the OIA.11 If the OIG refers the allegation back to the OIA, the OIA decides whether to conduct the investigation itself or refer it back to the institution where the allegation originated for local investigation by SIS/SIA staff.
A BOP investigation usually consists of interviewing the subject(s) of the allegation, the complainant(s), the relevant witnesses, and collecting evidence. Once the investigation is completed, the investigator prepares an investigative report that includes a determination whether the evidence sustains the allegation. For local investigations, the CEO reviews the case file and investigative report for content and completeness before forwarding it to the OIA. The OIA reviews the investigative file for completeness, accuracy, and to determine whether the investigator's conclusion is supported by the evidence.12 If the CEO or the OIA questions the completeness or accuracy of the local investigative report (e.g., whether certain questions were asked, a specific witness was interviewed, documents were missing), either can request further investigative work before approving the investigative report. If the OIA or the OIG conducted the investigation, the CEO is provided with a copy of the investigative report and the related affidavits.
If the investigation does not sustain the allegation, the disciplinary process ends and the subject is notified of the result within seven working days. If the investigation sustains the allegation, the relevant investigative case file documents are forwarded to the HR staff at the institution to begin the adjudicative phase of the disciplinary process.
The Adjudicative Phase
The institution HR staff receives the investigative file from the CEO and reviews the content to recommend appropriate discipline. This recommendation is based on the specifics of the case, the discipline previously proposed in similar cases by the current CEO at that institution, and the range of discipline described in BOP's Standard Schedule of Disciplinary Offenses and Penalties (its table of offenses).13 The institution's HR staff, in conjunction with the proposing official, determines the appropriate proposed discipline.
Once the HR staff and proposing official agree on the proposed discipline, the HR staff prepares a draft proposal letter that describes the charge(s); any specific details regarding the case; the proposed disciplinary or adverse action; and the rights to which the employee is entitled under applicable laws, rules, or regulations.14 The institution forwards a draft of the proposal letter with the accompanying case file to HR staff at one of six BOP Regional Offices for review and comment.15 The regional HR staff reviews the case file to ensure that it supports the charges. In addition, the staff reviews the proposal letter for accuracy of the charge; scrutinizes the letter's content, format, and language; and identifies necessary improvements or corrections. The institution HR staff revises the proposal letter accordingly and forwards it to LMR staff for review.
The LMR staff performs a final review of the proposal letter, also focusing on the accuracy and correctness of the stated charge, whether the evidence supports the charge, and whether the penalty proposed would be defensible in a third-party review. The LMR sends the letter back to the institution, where HR staff incorporates changes and finalizes the proposal letter. The proposing official reviews the letter, signs it, and gives it to the subject, who also reviews and signs the proposal letter. The proposal letter states that the subject has 10 calendar days to respond orally or in writing to the deciding official on proposed disciplinary actions and 15 days for proposed adverse actions. These responses become part of the case file.
After the subject reviews and signs the proposal letter, it is forwarded along with the case file to the deciding official for review. The deciding official applies the relevant Douglas factors - MSPB guidance on selecting reasonable and consistent penalties - and considers any verbal or written response provided by the subject before determining and imposing the penalty. The deciding official can only agree with or mitigate the penalty documented in the proposal letter. The institution HR staff reviews similar case histories for consistency, clarifies issues with the deciding official if necessary, and prepares the decision letter, following the same review process used for the proposal letter with the region and the LMR. The HR staff at the institution, region, and the LMR should ensure that the reasons for the imposed discipline are fully explained in the decision letter. This explanation should include a full and complete discussion of the relevant Douglas factors. Once the review process is completed, the deciding official presents the decision letter containing the final decision, the penalty, and the date the penalty begins to the subject for review and signature. The decision letter also advises the subject of actions available if the subject believes that the proposed discipline is wrong or excessive (e.g., filing a grievance or requesting arbitration).
Once the adjudicative phase is completed, the institution provides the OIA with copies of the proposal and decision letters and the Standard Form SF-50 (Notification of Personnel Action), if required for the penalty, for its investigative files. The Chief of OIA determines when to close the case file officially and notifies the CEO when this occurs.16
In FY 2003, the OIA closed 2,942 misconduct investigations involving 3,715 BOP subjects.17 In these cases, allegations for 1,859 subjects were sustained, while the allegations for the remaining 1,856 subjects were either not sustained, determined to be unfounded, or administratively closed. Table 1 shows the outcomes for subjects with sustained allegations.
Table 1: Outcomes for BOP Employees with Sustained Allegations
|Penalty Imposed||Number of |
|Percentage of |
|No Penalty - No Action Taken||399||21.5|
|No Penalty - Subject Resigned||132||7.1|
|No Penalty - Subject Retired||27||1.5|
|Other Type of Penalty |
(e.g., Last Chance Agreement or Settlement Agreement)
|Combination of Penalties||17||0.9|
|No Penalty - Subject Reassigned||4||0.2|
|Source: OIG analysis of BOP data|
Chart 1: Flowchart of BOP's Disciplinary System
[Chart Not Available Electronically]
Workload of BOP Staff Involved in Disciplinary System
During FY 2003, according to OIA statistics, 4,193 investigations of BOP employees were opened and 3,627 were closed.18 These statistics include cases investigated by other Department entities (e.g., the OIG, the Federal Bureau of Investigation (FBI), the Civil Rights Division). The 4,193 opened cases represented an increase of 16 percent from the 3,629 cases opened in FY 2002. Of the 4,193 cases opened in FY 2003:
In FY 2003, information involving 1,719 employees with sustained misconduct allegations was forwarded through a BOP region and the LMR for adjudication. This averaged 286 cases reviewed by HR staff at each of the six BOP regions and approximately 156 cases reviewed by each LMR Employee Relations Specialist.