Review of the Federal Bureau of Prisons' Disciplinary System

Report Number I-2004-008
September 2004

RESULTS OF THE REVIEW

INVESTIGATIONS OF EMPLOYEE MISCONDUCT

BOP employees failed to report employee misconduct. The BOP's Standards of Employee Conduct (Program Statement 3420.09) require that employees "Immediately report to their CEOs, or other appropriate authorities, such as the Office of Internal Affairs or the Inspector General's Office, any violation or apparent violation of these standards." In our e-mail survey of BOP employees, almost 92 percent of the respondents said that they had read the Standards of Employee Conduct and 96 percent said that they were aware of the BOP's requirements for reporting employee misconduct.22 However, of the respondents who said they had witnessed employee misconduct, 41 percent stated that they did not always report this misconduct to the proper authorities. Sixty-six percent reported that they did not believe that their fellow employees always reported misconduct.

One case in our sample of investigative files involved a Warden who did not report an allegation of misconduct. According to the BOP's Program Statement 1210.24, "Upon becoming aware of any [emphasis added] possible violation of the Standards of Employee Conduct, the CEO… is to report the violation to OIA." The OIA received an anonymous complaint alleging that a BOP employee was selling prescription drugs at the institution and that the Warden was aware of the allegation but never referred it to the OIA as required. Instead, the Warden directed SIS staff to make the case an "informational file." The OIA opened a Classification I investigation regarding the sale of the prescription drugs and subsequently charged the Warden with Failure to Report Misconduct. The OIA investigation revealed that the Warden had been notified of the allegation but did not refer it to the OIA. The Warden stated in his affidavit, "based on my interpretation and review of all documentation, it was my decision to refer the case back to the SIA office as an information file… I believe I was acting within the scope of my position… ." The OIA investigation found insufficient evidence to support the allegations against the staff member or the Warden and stated that his decision not to refer the case "was a 'judgement call' on his part [and] was within the scope of the Warden's position." However, the scope of the Warden's authority to make such judgment calls is not defined in any BOP policy.

In this case, the OIA's decision that the Warden could use his judgment violated its own policy that "any possible violation" be reported to the OIA. This is illustrated by the fact that the Warden determined that this case did not meet even Classification III reporting criteria (as evidenced by his not including the case in the monthly report to OIA), while the OIA later assigned it Classification I status.

BOP investigations of employee misconduct were thorough. An OIG Special Agent reviewed a random sample of 85 investigative files and found that local investigations, which are reviewed by the CEO and the OIA before closure, and OIA investigations were thorough. The OIG Special Agent concluded that the allegations were properly classified, that the BOP investigator interviewed relevant witnesses and examined the necessary documents, and that the investigative report contained the information necessary to understand the actions taken during the investigation. The OIG Special Agent agreed with the investigators' conclusions regarding whether the allegations should or should not be sustained and rated the 85 investigations as either "very good" or "good."

We also surveyed OIA investigators, deciding officials, and BOP employees for their opinions of misconduct investigations. We surveyed OIA investigators to obtain their opinions of the quality of local investigative reports because they monitor and review local investigations completed at the institutions. Seventy-eight percent of OIA investigators responded that local investigative reports were of "very good" or "good" quality (Chart 2).

[Chart 2 Not Available Electronically]
Source: OIG analysis of OIA Investigator Survey

We surveyed deciding officials to obtain their opinions on the quality of both OIA and local investigative reports. The majority of the respondents rated the quality of the investigative reports as either "very good" or "good," as shown in Chart 3. More than 96 percent thought the quality of OIA reports was either "very good" or "good," while 89 percent believed that local reports were "very good" or "good."

[Chart 3 Not Available Electronically]
Source: OIG analysis of Deciding Official Survey

We also surveyed BOP employees to obtain their perceptions regarding the quality of investigations and found that their perceptions were slightly less positive than the OIA investigators' and deciding officials' opinions. Seventy-four percent (100 of 136) of the respondents who stated that they were involved in or aware of an investigation believed that the investigations were thorough. The 26 percent (36 of 136) who did not believe that the investigations were thorough included such responses as:

We partly attribute the high ratings of the quality of BOP investigations to the OIA's monitoring of local investigations, which provides a centralized level of review. We found that this monitoring helped to ensure that the investigations were thorough and supported the investigators' conclusions. For example, 17 of the 18 OIA investigators stated that they had disagreed with a local investigator's conclusion at one time or another. When this occurred, the OIA investigators said that they asked the local investigators to interview additional witnesses, review pertinent BOP policies, or gather more information until the OIA investigator believed that the investigation strongly supported the conclusion.

REASONABLENESS OF THE DISCIPLINARY SYSTEM

Disciplinary decisions sometimes did not appear reasonable. Disciplinary penalties should be commensurate with the level and type of misconduct committed, while considering the relevant factors involved in the case. To assess whether the BOP imposed reasonable penalties, we reviewed case files for the 206 subjects in our sample of 85 cases. Of the 206 subjects, the investigations sustained allegations for 92 subjects (45 percent), did not sustain the allegations for 111 subjects (54 percent), and found that allegations for 3 subjects (1 percent) were unfounded.23

We reviewed the case files for the 114 subjects for whom the allegations either were not sustained or were unfounded and determined that the investigations' conclusions were reasonable. For the 92 subjects for whom the allegations were sustained, we determined that the outcomes for 36 (39 percent) of the subjects also were reasonable, based on our review of the documentation in the case files.

The outcomes did not appear reasonable for the remaining 56 of 92 (61 percent) subjects. First, the CEOs imposed either informal or no discipline for 20 subjects with sustained Classification I or II allegations without formally adjudicating the cases. Classification I and II allegations are generally serious and therefore we would expect formal discipline to be imposed. Further, the CEOs did not document their reasons for their decisions in these cases. For the remaining 36 subjects, the disciplinary proposal appeared commensurate with the sustained charges. However, the deciding officials mitigated the proposed discipline without adequately documenting their reasons. The mitigated discipline no longer appeared commensurate with the sustained allegations. We discuss these two reasons in greater detail in the following paragraphs.

CEOs either imposed informal discipline or took no disciplinary action for some subjects charged with serious allegations. Our sample identified 20 subjects with sustained allegations in the more serious Classification I and II categories for whom the CEO either imposed informal discipline or took no action without fully adjudicating the case or documenting the reasons for their decisions (see Table 2). Therefore, the CEOs' decisions to impose informal discipline or take no action in these serious cases did not appear to be reasonable outcomes.

Table 2: Subjects Whose Cases Did Not Go Through the Full Adjudicative Phase
Subject Classification Sustained Charges Discipline
1 1 Failure to Follow Policy No Action
2 1 Falsification of Government Documents Oral Reprimand
3 1 Falsification of Government Documents Oral Reprimand
4 1 Falsification of Government Documents Oral Reprimand
5 1 Falsification of Government Documents Oral Reprimand
6 1 Falsification of Government Documents Oral Reprimand
7 1 Falsification of Government Documents Oral Reprimand
8 1 Falsification of Government Documents Oral Reprimand
9 1 Falsification of Government Documents Oral Reprimand
10 1 Falsification of Government Documents Oral Reprimand
11 1 Falsification of Government Documents Oral Reprimand
12 1 Unprofessional Conduct of a Sexual Nature; Theft/Misuse of Government Property No Action
13 2 Accepting Anything of Value from an Inmate No Action
14 2 Accepting Anything of Value from an Inmate No Action
15 2 Breach of Security; Failure to Follow Policy Oral Reprimand
16 2 Breach of Security; Failure to Follow Policy Oral Reprimand
17 2 Breach of Security; Failure to Follow Policy Oral Reprimand
18 2 Endangering the Safety of Others; Unprofessional Conduct Oral Reprimand
19 2 Inattention to Duty No Action
20 2 Unprofessional Conduct Oral Reprimand
Source: OIG Analysis of BOP Investigative Files

The cases for these 20 subjects were not fully adjudicated. We found no proposal letters to indicate that the cases for these 20 subjects were reviewed and approved by proposing officials, and institutional, regional, and LMR staff. Moreover, we found decision letters for only four subjects. These decision letters did not indicate that the subject received a proposal letter, and did not include the CEO's rationale for imposing informal discipline or taking no action.24 These elements of the adjudicative phase are necessary as they collectively serve as checks and balances to ensure that imposed discipline is reasonable. Below are two case examples from our sample.

Case Example 1: An OIA investigation into a Classification I allegation found that a BOP Correctional Treatment Specialist had made comments of a sexual nature to a department head and had removed government property from the institution for her personal use. Charges of Unprofessional Conduct of a Sexual Nature and Unauthorized Removal of Government Property for Personal Use were sustained against the employee. Neither the investigative file nor the disciplinary file contained a proposal or decision letter to document that this case was properly adjudicated. In addition, the investigative file stated that "The warden elected not to take any disciplinary action against [the employee]" without any explanation. Given the serious nature of the charges, the decision on the part of the Warden not to take action without fully adjudicating the case does not appear reasonable.

Case Example 2: A local investigation of a Classification II allegation found that a BOP correctional officer gave his knife to an inmate in the institution. After a supervisor confiscated the knife from the inmate, he returned it to the correctional officer rather than holding it as evidence for an investigation. A 5-day suspension for Introduction of Contraband and Giving an Inmate an Unauthorized Item was proposed, and the correctional officer received a Letter of Reprimand, which seemed reasonable according to the mitigating factors discussed in the decision letter. With regard to the supervisor, investigators sustained an allegation of Inattention to Duty. However, no proposal or decision letter was in the investigative or disciplinary file to document that the supervisor's case was properly adjudicated. Instead, documentation in the investigative file showed that "the Warden elected to take no action against [the supervisor]" without any explanation for his reasons.

In our discussions with HR staff at the institutions, the HR staff stated that the CEOs sometimes took no disciplinary action or imposed informal discipline without forwarding the case through the full adjudicative phase because they believed the misconduct was not serious enough to impose formal discipline. When we asked an LMR official about whether the CEOs could bypass the adjudicative phase, she stated that she would not know if this occurred because LMR only reviewed cases when the institution wanted to take disciplinary action. She further stated that there is no BOP policy stating that all sustained allegations must go through the adjudicative phase, and that deciding officials should have some latitude in making disciplinary decisions.

In other Department disciplinary systems reviewed by the OIG, deciding officials were not involved in the disciplinary process until the proposing official had issued the proposal letter to the subject.25 However, in the BOP, this is not the case. The deciding officials, in their capacity as the CEOs, review the investigative report before the proposing official and therefore have the opportunity not to forward the investigative case file to HR for adjudication. Under the BOP's procedures, the CEO can impose informal discipline or take no action after reading an investigative report with sustained allegations, bypassing the proposing official and the full adjudicative phase, as evidenced by the 20 subjects in our sample. In effect, the CEO acts unilaterally and without the formal recommendations of the proposing official, and institutional, regional, or LMR staff. When the CEO determines that certain cases should not be fully adjudicated, these cases are not subjected to the checks and balances to ensure reasonableness that are inherent in having independent investigative and adjudicative phases.

Deciding officials mitigated the proposed penalties without adequately explaining their reasons for the mitigation in the decision letters. We determined that deciding officials mitigated penalties for 36 subjects in our sample without adequate explanation in the decision letters. Based on the documentation in the investigative files and the proposal letters, the proposed penalties seemed reasonable. However, the mitigated imposed penalties did not appear reasonable because they lacked adequate explanation in the decision letters. The lack of documentation in the decision letters is not in compliance with Title 5, Code of Federal Regulations, Part 752, which states that agencies must maintain "the notice of decision and reasons therefore." In addition, according to guidance from the BOP's LMR:

In all decision letters, always include a full and complete discussion of all relevant Douglas factors… If the penalty in the proposal is mitigated (lessened), you must make some indication in the decision of the reasons why. In all cases, provide a full discussion of all of the relevant Douglas factors in the decision letter.

Below are two case examples from our sample in which the deciding official mitigated the proposed discipline without sufficiently explaining the reason in the decision letter.

Case Example 1: An OIA investigation found that a BOP employee hit an inmate and failed to disclose this information during his initial interview with OIA investigators. Therefore, allegations of Physical Abuse of an Inmate and Providing a False Statement were sustained against the employee. The proposing official proposed that the employee be removed. Based on information contained in the investigative file and the proposal letter, the proposed penalty seemed reasonable. However, the deciding official chose instead to demote the employee. A review of the deciding official's consideration of the Douglas factors in the decision letter did not explain why he mitigated the penalty. For each Douglas factor mentioned in the decision letter, the deciding official described reasons not to mitigate the penalty. The deciding official wrote:
When considering what penalty was appropriate, I considered, among other factors: (a) charges of Physical Abuse of an Inmate and Providing Conflicting Information are very serious charges in light of your current position as a supervisor who commonly needs to work with a great amount of autonomy and who has management oversight and guidance responsibilities to subordinate correctional services staff and inmates, (b) your position as a federal law enforcement officer requires that your actions be above reproach and that you forthrightly answer questions presented to you by agency officials, (c) while your past work record has been acceptable, it does not shield your very serious breach of trust, (d) while you have no prior disciplinary record and have demonstrated some degree of remorse, your misconduct is so serious as to warrant a substantial penalty, (e) your misconduct has caused serious damage to your superior's confidence in your ability to do your current job, (f) the penalty is consistent with the agency's table of penalties, (g) you were aware of the applicable policy and procedures as we train staff in the Employee Code of Conduct and the Use of Force policies immediately upon entrance on duty and annually thereafter, (h) while you may or may not have been first provoked by the inmate's spitting upon you, you had the staffing resources immediately available to you to use a lesser degree and form of force (e.g., you could have simply turned the inmate's face away from you), (i) alternative sanctions were considered, but I concluded that they would not have had the desired corrective effect.

In fact, the deciding official wrote, "I believe that either of the [two] sustained charges would normally warrant removal by themselves." The deciding official did not explain the decision to demote, rather than remove, the employee. In this case, the decision to demote the employee did not appear reasonable, given the seriousness of the charges.

Case Example 2: In another OIA investigation, an employee was found to have committed misconduct when he used physical force on an inmate but did not report it, and later provided a false statement about the incident to investigators. The OIA investigation sustained charges of Failure to Follow Policy and Providing a False Statement. The proposing official proposed a 5-day suspension, but the deciding official took no disciplinary action. The decision letter contained no reason for the decision. It read in total, "This is to notify you that I will not take any action on the notice of proposed disciplinary action which you received."

We also found that LMR staff involved in the disciplinary process believed that in certain cases the proposed discipline should not have been mitigated. In one case involving the failure of the subject to respond to an emergency, the deciding official mitigated the proposed discipline from a 7-day suspension to a Letter of Reprimand. The LMR staff member reviewing the case wrote the following comments:

I will approve the letter but I have concerns… [The subject] did not express remorse, did not apologize and didn't offer written response. He's also been disciplined before. Why would it be mitigated? This is a serious problem.

Another case involved a subject charged with being Absent Without Leave. The proposing official proposed a 3-day suspension, but the deciding official gave the subject a Letter of Reprimand. Information obtained from LMR showed that the LMR staff member noted "concerns on why they went from three day suspension to a letter of reprimand, [but] was told that was what the Warden wanted."

Overall, in FY 2003, 63 percent of all discipline was mitigated from what the proposing official proposed. While a reduction in the proposed discipline may be reasonable based on other evidence or mitigating circumstances described in the employee's oral or written statement (if supplied), it is essential that the deciding official document the reasons for mitigation in the decision letter, as required.

The CEOs can influence local investigative reports for cases in which they also will act as the deciding officials, creating the potential for outcomes that are not reasonable. The BOP's disciplinary system requires the CEOs, in their role as administrators, to review and approve local investigations before they are forwarded to the OIA for its review. The CEOs whom we surveyed stated that if a report did not contain the necessary information or if they disagreed with an investigation's conclusion, they would ask the investigators to investigate further. Further, some CEOs stated that when they disagreed with an investigation's conclusion, they changed the investigator's findings or took no disciplinary action. Because the CEOs review and have the opportunity to influence the content and conclusions of the investigative reports during the investigative phase and then act as the deciding official in the adjudicative phase, the independence of the investigative and adjudicative phases, which helps to ensure that disciplinary outcomes are reasonable, can be compromised.

Disciplinary files lacked required documentation. As mentioned earlier, our sample included 20 subjects for whom the deciding official either imposed informal discipline or took no action and the disciplinary file was missing the proposal letter, the decision letter, or both. We reviewed the disciplinary files for the remaining 72 subjects in our sample with sustained allegations and found that some of these files also did not contain the required documentation. According to Title 5, Code of Federal Regulations, Part 752:

Copies of the notice of proposed action, the answer of the employee if written, a summary thereof if made orally, the notice of decision and reasons therefore, and any order affecting the suspension, together with any supporting material, shall be maintained by the agency… .26

During our review, we asked the BOP to provide us with the following documents from the disciplinary file for the 92 subjects with sustained allegations: 1) proposal letter; 2) employee's written response, if applicable; 3) summary of employee's oral response, if applicable; 4) decision letter; and 5) documentation of imposed discipline.27 We found that the proposal letter was missing for 28 (30 percent) subjects, and the decision letter was missing for 20 (22 percent) subjects. Documentation of imposed discipline was missing in four cases (Table 3).

Table 3: Documentation Missing from Disciplinary Files
Discipline Imposed (Number of Subjects) Proposal Letters Missing Decision Letters Missing Documentation of Imposed Discipline Missing
Removal (4) 0 0 0
Suspension (12) 1 1 3
Demotion (2) 0 0 0
Letter of Reprimand (41) 4 1 1
Oral Reprimand (17) 16 11 N/A
No Action Taken (12) 7 7 N/A
Not Applicable Because Subject Resigned or Retired before Adjudication (4) N/A N/A N/A
Total (92) 28 20 4
Source: OIG analysis of BOP investigative files

We also examined whether the written or oral response of the subject was maintained in the files, as these typically contain the reasons why a deciding official would choose to mitigate the proposed penalty. Fifty-six subjects chose to give an oral response; 8 (14 percent) of the oral summaries were missing from the case file. Fourteen subjects chose to give a written response; 4 (29 percent) were missing. When required documentation explaining the reasons for the discipline imposed is not included in the case file, it is not possible to determine if the discipline is reasonable.

The table of offenses does not provide enough guidance to determine reasonable discipline. The table of offenses, while specific to the mission of the BOP, included a broad range of penalties that do not provide enough guidance for proposing and deciding officials to determine reasonable discipline. The BOP's table of offenses was last revised in 1999 and currently is being updated. It contains 54 offense categories that are specific to the BOP's mission of protecting society by confining offenders in appropriate facilities. These offense categories include:

The penalty range for a first offense for 41 of these 54 (76 percent) offense categories is "official reprimand to removal." This range essentially encompasses every type of formal discipline possible and is so broad that it gives the proposing and deciding officials no guidance in determining a reasonable penalty.

Survey of BOP employees on discipline. Our e-mail survey of a random sample of 275 BOP employees indicated that 74 percent of respondents who stated that they were aware of employee misconduct investigations that resulted in discipline believed that the discipline was appropriate, while 26 percent believed it was not appropriate. We found that 17 percent of the respondents stated that the discipline imposed was too lenient.

CONSISTENCY OF THE DISCIPLINARY SYSTEM

An equitable disciplinary system should ensure that employees receive substantially similar discipline for similar misconduct under similar circumstances. However, BOP guidance states that CEOs, when acting as deciding officials, should be consistent with their own prior decisions at the same institution. This guidance advises BOP managers on how to select appropriate discipline, avoid the appearance of disparate treatment, and impose consistent penalties:

Naturally, the law does not require rigid, mathematical application of penalties. However, it is presumed that like penalties will be imposed in like cases. Accordingly, for purposes of disparate treatment and consistency of the penalty analysis, the mere [fact] that employees were involved in similar misconduct yet received different penalties is insufficient to prove disparate treatment. The charges and circumstances surrounding the misconduct should be substantially similar. Generally, this means that: the offenses must occur within the same component of the agency that initiated the action e.g., look to offenses within the same institution or within the same regional office; the offenses should be compared among those occupying relatively similar positions of trust and responsibility, e.g., where the wrongdoer is a supervisor, look at other supervisors' misconduct; the penalties were imposed by the same decision maker, e.g., the same CEO, not the former vs. current CEO [emphasis added].

Therefore, the BOP does not require consistency of disciplinary decisions BOP-wide or even between a current and former CEO at the same institution.

LMR staff told us that imposing consistent discipline is only required of the current CEO at each facility because that is what is necessary for imposed discipline to be deemed defensible if the subject appeals or grieves the decision to a third party. According to the MSPB:

To prove a disparate treatment claim with regard to the penalty of an act of misconduct, an appellant must show that a similarly situated employee received a different penalty… . The comparator employee must be in the same work unit… must have the same supervisors… and the misconduct must be substantially similar.28

Because the MSPB only requires consistency if "comparison employees were similarly situated within the same supervisory unit," BOP management stated that consistency of disciplinary decisions is only necessary for each CEO and not for the entire BOP. Consequently, two similarly situated subjects who committed similar misconduct under similar circumstances at different institutions of the same security level could receive different penalties because the subjects had different CEOs. Therefore, the CEOs at each of the BOP's 113 institutions, 6 Regional Offices, 28 community corrections offices, 2 staff training centers, and 1 Central Office may impose different discipline for similar misconduct and circumstances, as long as their disciplinary decisions are consistent with their prior decisions at the same institution.

We found that BOP Wardens are assigned to an institution for an average of 29 months. Consequently, when a new CEO is assigned to an institution, a new standard is adopted for determining consistent discipline. Several of the HR staff we interviewed stated that when a newly appointed CEO did not have an established disciplinary record, they reviewed discipline imposed by former CEOs at the institution to ensure some level of consistency, although such reviews are not required by the BOP.

Some regional HR staff stated that they reviewed disciplinary cases across the region in an attempt to ensure consistency and continuity. However, the regions did not have a systematic process for such reviews and did not always use reliable information to check for consistency. While some regions reviewed logbooks or databases, other regions relied on the historical knowledge of the HR staff. One region did not check for consistency across the region at all. In addition, although the LMR reviewed and approved all disciplinary and adverse action case files and related letters, it did not specifically review the penalties for consistency BOP-wide. Therefore, even though the regions and the LMR review all disciplinary cases and could check for consistency by region and BOP-wide, they do not.

We attempted to determine the consistency of discipline imposed BOP-wide for similar charges in our sample of 85 cases.29 However, our sample did not include a sufficient number of cases with similar charges and circumstances to perform this type of consistency analysis.

One case from our sample did raise questions about the consistency of the penalties imposed. The case involved an OIA investigation into the escape of an inmate from a hospital and included 24 subjects, the majority of whom were correctional officers investigated for the same charges - Failure to Follow Policy and Breach of Security.30 The OIA sustained the charges for all 24 subjects. The proposing official proposed discipline ranging from a 4-day suspension to an 18-day suspension. Based on the explanations provided in each proposal letter, the range of proposals appeared reasonable.

We expected that the discipline imposed by the deciding official similarly would vary. First, each subject had a different number of specifications for each charge of misconduct, which was reflected in the range of days of suspension described in the proposal letter. Second, three subjects had prior discipline, which the proposing official asked the deciding official to consider when making a decision. Finally, the decision letters for the 24 subjects mentioned four different mitigating factors that should have affected the penalty.31 Nine decision letters mentioned two mitigating factors, while the remaining 15 letters cited three mitigating factors. However, the deciding official issued a Letter of Reprimand to all 24 subjects, and the decision letters did not clearly explain why proposed suspensions of varied lengths were mitigated to the same penalty. Absent any explanation, we concluded that the deciding official did not apply consistent discipline in this case.

Many BOP employees believed that discipline was not consistent. We found that approximately 60 percent of the respondents to our e-mail survey believed that employees did not receive similar treatment in the disciplinary process based on their job title or grade level. Approximately 43 percent of respondents believed that employees did not receive similar treatment based on gender or race. Table 4 shows the percentage of respondents who believed that BOP employees were treated differently according to certain demographic and job characteristics.

Table 4: Percentage of Employee Responses
Do you believe that BOP employees receive similar treatment throughout the discipline process, regardless of their: Yes No
Job title 40.4 59.6
Grade level 40.4 59.6
Gender 57.0 43.0
Race 56.6 43.4
Source: OIG survey of BOP employees

We asked respondents to explain why they believed employees were not treated consistently by job title, grade level, gender, or race. Generally, respondents believed that employees who were higher-graded, non-correctional officers, white, or male received more favorable treatment than other BOP employees. Employees specifically stated that Wardens were not consistent in how they imposed discipline:

Twenty-five employees also stated that favoritism on the part of management influenced discipline and that deciding officials used their discretion to impose discipline improperly. Examples of their comments are:

Seventeen employees said that discipline is inconsistently imposed because higher-level employees are able to transfer or retire rather than receive discipline, and several respondents stated that some subjects are actually promoted after they commit misconduct. A phrase several respondents cited was, "If you mess up, you move up." Some responses included:

BOP data did not substantiate that the disciplinary process was affected by grade level, job series, gender, or race. Although respondents to our survey believed that BOP employees were treated differently in the disciplinary process by job series, grade level, gender or race, our analysis of the BOP data did not support this belief. We compared LAWPACK data to BOP population data to determine whether job series, grade level, gender, or race affected the disciplinary process.32 To determine whether differences existed for the four characteristics, we compared the proportion of employees who were investigated, the proportion of employees with sustained allegations, and the proportion of employees who were disciplined. Our analysis did not substantiate that the four characteristics affected the disciplinary process.

Data regarding grade level. The data did not show that grade level was a factor in the disciplinary process. We found that approximately the same proportion of employees at lower grade levels (2 through 12) were subjects of investigations as employees at higher grade levels (13 and above). For closed investigations in FY 2003, 11.0 percent of employees at grade levels 2 through 8, 10.7 percent of employees at grade levels 9 through 12, and 8.9 percent of employees at grade levels 13 and above were subjects of investigations. We also found that nearly the same proportion of employees in the three segments of grade levels had allegations that were sustained, and had sustained allegations that resulted in discipline (Table 5).33 This data did not indicate to us that grade level affected the disciplinary process.

Table 5: Effect of Grade Level on the Disciplinary Process
GRADE LEVEL Employees in
BOP Population		 Employees That
Were Investigated		 Employees with
Sustained Allegations		 Employees That
Were Disciplined
Number Percent Number Percent Number Percent
Grade 2 - 8 19,822 2,173 11.0 1,120 51.5 784 70.0
Grade 9 - 12 11,703 1,248 10.7 628 50.3 439 69.9
Grade 13 and above 2515 225 8.9 108 48.0 71 65.7
Source: OIG analysis of BOP data

Data regarding job series. The data also did not show that job series was a factor in the disciplinary process. For closed investigations in FY 2003, a higher percentage of correctional officers (14 percent) were investigated compared with non-correctional officers (9 percent).34 However, this could be because correctional officers have significantly more contact with inmates, who can make more allegations than other employees. In contrast, a smaller percentage of correctional officers had allegations sustained (45 percent for correctional officers compared with 55 percent for non-correctional officers), which may also be consistent with the greater likelihood of specious allegations by inmates. Finally, a higher percentage of correctional officers with sustained allegations were disciplined (Table 6). This data did not indicate to us that job series affected the disciplinary process.

Table 6: Effect of Job Series on the Disciplinary Process
JOB SERIES Employees in
BOP Population		 Employees That
Were Investigated		 Employees with
Sustained Allegations		 Employees That
Were Disciplined
Number Percent Number Percent Number Percent
Correctional Officer 13,844 1,974 14.3 936 47.4 680 72.6
Other 18,148 1,672 9.2 920 55.0 614 66.7
Source: OIG analysis of BOP data

Data regarding race. The data did not show that race was a factor in the disciplinary process. For investigations closed in FY 2003, slightly higher proportions of Hispanic and black employees were the subjects of investigations than white employees. Approximately 13 percent of both Hispanic and black employees were subjects of misconduct investigations, compared with 9 percent of white employees. However, a smaller proportion of black employees had allegations that were sustained, and approximately the same proportion (70 percent) of employees in all three races had sustained allegations that resulted in discipline (Table 7). This data did not indicate to us that race affected the disciplinary process.

Table 7: Effect of Race on the Disciplinary Process
RACE Employees in
BOP Population		 Employees That
Were Investigated		 Employees with
Sustained Allegations		 Employees That
Were Disciplined
Number Percent Number Percent Number Percent
Black 7,162 952 13.3 469 49.3 329 70.1
Hispanic 3,725 503 13.5 269 53.5 187 69.5
White 21,937 2,045 9.3 1,036 50.7 729 70.4
Source: OIG analysis of BOP data

Data regarding gender. The data did not show that gender was a factor in the disciplinary process. As a percentage of their appearance in the BOP population, female employees were investigated at a lower rate (8.0 percent) than male employees (11.8 percent). However, a smaller proportion of male employees (49.8 percent) had allegations that were sustained, compared with female employees (55.2 percent). Finally, approximately 10 percent more male employees had sustained allegations that resulted in discipline, as compared with female employees (Table 8). This data did not indicate to us that gender affected the disciplinary process.

Table 8: Effect of Gender on the Disciplinary Process
GENDER Employees in
BOP Population		 Employees That
Were Investigated		 Employees with
Sustained Allegations		 Employees That
Were Disciplined
Number Percent Number Percent Number Percent
Female 9,584 765 8.0 422 55.2 263 62.3
Male 24,438 2,881 11.8 1,434 49.8 1,034 72.1
Source: OIG analysis of BOP data

TIMELINESS OF THE DISCIPLINARY SYSTEM

We examined data from our sample of 85 investigative files to determine the BOP's timeliness in referring misconduct allegations to the OIA. We found that management did not refer misconduct allegations to the OIA within required time frames.

We examined the OIA's LAWPACK database to evaluate OIA's timeliness in referring Classification I and II allegations to the OIG in FY 2003. For those cases involving BOP employees, we found that:

Table 9: OIA Reporting of Classification I Cases to the OIG
Number of days for OIA to report Classification I allegation to OIG Number of allegations reported Percentage of allegations reported
1 day or less 357 56.8
2 - 7 days 145 23.1
8 - 14 days 8 1.3
More than 14 days 7 1.1
Unknown 111 17.7
Source: OIG analysis of BOP data

Table 10: OIA Reporting of Classification II Cases to the OIG
Number of days for OIA to report Classification I allegation to OIG Number of allegations reported Percentage of allegations reported
2 days or less 675 64.5
3 - 7 days 159 15.2
8 - 14 days 25 2.4
More than 14 days 42 4.0
Unknown 146 13.9
Source: OIG analysis of BOP data

An OIA official asserted that the delays in reporting to the OIG could be partially attributed to an influx of cases during certain time frames, which may affect overall workload, or a recent change in OIA review and referral procedures.

The BOP has not established written time frames for the investigation and adjudication of misconduct allegations. Because there are no written time frames, we asked BOP officials what they considered to be appropriate time frames for the investigation and the adjudication of misconduct cases. We based our analysis of timeliness on these informal time frames provided by BOP management. While OIA investigators generally completed investigations of employee misconduct within the informal time frames set by OIA management, local investigators did not. In addition, the adjudication of misconduct cases exceeded the informal time frames provided by LMR officials. While the OIA and LMR record some date information, they do not use this information to analyze or measure timeliness.

According to the OIA Chief, investigations conducted by OIA investigators should be completed within 90 days and local investigations conducted at the institutions should be completed within 60 days.36 Our analysis of the 85 case files in our sample found that the average time it took for OIA investigators to complete their investigations was 84 days, less than the informal time frame of 90 days. However, the average time it took local investigators at the institutions to complete an investigation was 103 days, 43 days longer than the OIA's informal 60-day time frame (Table 11).37

Table 11: Average Number of Days to Complete Investigations
Type and Number of Investigations Informal Time Frame Average Number of Days to Complete Investigation
OIA (17) 90 days 84
Local (68) 60 days 103
Source: OIG analysis of BOP data

It should be noted that the averages above exclude the additional investigative work of external law enforcement entities that were required in certain cases. In our sample of 85 cases, Federal Bureau of Investigation (FBI), OIG, or local law enforcement were involved in 10 cases (e.g., OIG assistance with polygraphs). We did not determine how much external law enforcement activity extended the total time spent on each investigation.

In addition, the BOP had no written standards for assessing whether institutions, Regional Offices, or the LMR adjudicated misconduct cases in a timely manner. According to the Assistant Chief of LMR, a range of 60 to 70 days to adjudicate a disciplinary action case and a range of 75 to 90 days to adjudicate an adverse action case are acceptable time frames.

For the 92 subjects with sustained allegations in our sample, the adjudicative phase took an average of 97 days for disciplinary actions and 110 days for adverse actions (Table 12).

Table 12: Average Number of Days to Complete Adjudication
Segment of Adjudicative Process* Days to Adjudicate Adverse Actions Days to Adjudicate Disciplinary Actions
Date the investigative report was signed to date the proposal letter was signed 53 69
Date the proposal letter was signed to date the decision letter was signed 57 28
Average Number of Days to Complete Adjudication 110 97
Source: OIG analysis of BOP data
*Seventy subjects in our sample received disciplinary actions and six subjects in our sample received adverse actions. (Because of the small number of subjects in our sample who received adverse actions, we cannot conclude that the observed delays for adverse actions were typical.) Our analysis does not include data for 12 subjects for whom no disciplinary action was taken and 4 subjects who either retired or resigned.

The averages resulting from our sample reveal that adverse action cases exceeded the informal time frame established by the LMR by an average of 20 days. Disciplinary cases exceeded LMR's time frame by an average of 27 days. We asked an LMR official why these delays might have occurred. The LMR official stated that delays in the first part of the process could be due to time needed to make revisions to the proposal letter at the Regional Office or LMR or to resolve disagreements among the institution, Regional Office, and LMR regarding the type of penalty to be imposed. Delays in the second part of the process may have resulted from the subject requesting extensions in providing an oral or written response to the deciding official.

BOP employees we surveyed were critical of the delays in the disciplinary process. Approximately 43 percent of the BOP employees who stated that they were involved in or aware of misconduct investigations believed that these investigations were not timely. Approximately 34 percent who stated they were aware of investigations that resulted in discipline believed that the adjudication of discipline was not timely. Employees cited cases that lasted one to two years, including some cases that continued for four or five years. They acknowledged that some lengthy investigations were justified, given the complexity or number of allegations involved. However, the BOP employees could not understand why relatively minor offenses extended beyond what they perceived to be a reasonable amount of time.

Employees commented on how lengthy disciplinary decisions adversely affected employee morale and career progression. They referred to instances in which subjects of an investigation were assigned to "home duty" status for one to two years while waiting for a decision.38 They also cited examples of employees under investigation who were denied promotions or declared ineligible for awards. The following were representative employee comments on the effect of lengthy disciplinary decisions on morale:

Deciding officials, in responding to a separate survey, also commented on the negative effect of delays in completing discipline cases. When asked how they would improve the disciplinary system, the deciding officials identified improving timeliness as the first priority. Their suggestions included:

Delays negatively affected the discipline imposed. In addition to the other negative effects associated with untimely disciplinary decisions, we identified at least three cases in which the proposed discipline was mitigated because of the extended time spent processing the cases.

The first case involved a charge of Unprofessional Conduct in which a staff member was overheard using profane and threatening language toward another BOP employee. The discipline was mitigated from a proposed 5-day suspension to a Letter of Reprimand. According to written comments obtained from LMR, "Because of… the length of time it took to complete the investigation of [the employee's] work record, a letter of reprimand was issued in lieu of the proposed 5 day sanction."

The second case involved a Health Services Administrator investigated for Unacceptable Performance of Assigned Duties. The BOP sought removal in a December 2002 proposal letter, and the employee was subsequently assigned to work escort duty while the case was adjudicated. The employee provided an oral response to the proposal letter in March 2003, but no additional action was taken in the case until October 2003. The LMR did not approve the decision letter because, according to written comments obtained from LMR, "there is no justification for the delay." No disciplinary action was taken as a result.

The third case involved an arbitration hearing in which the imposed discipline was overturned because of the length of time between the date of the incident and the date when discipline was imposed. The following text box details the case's history.

CASE STUDY: The Need for Timely Case Disposition

This local investigation involved a correctional officer who failed to lock an inner door in the Special Housing Unit at a Federal Correctional Institution. The investigation consisted primarily of taking brief statements from four employees, all at the same site, with the facts largely uncontested. The subject immediately took responsibility and acknowledged that he violated post orders. However, the investigators did not formally interview the subject until three months after taking affidavits from the relevant witnesses. The following is a chronology of the events in the case:

  • December 1, 2000 - The misconduct occurred.
  • March 12, 2001 - Investigators completed the investigation and sustained the charge.
  • December 21, 2001 - Proposing official proposed one-day suspension.
  • January 17, 2002 - Deciding official imposed one-day suspension.
  • February 5, 2002 - Subject served one-day suspension.

On March 1, 2002, the subject grieved the suspension. The BOP's position was that the Master Agreement between BOP and the employee union did not establish a specific time frame for conducting investigations and that a more pressing investigation took priority.* The union countered that the language in the Master Agreement stated "the parties endorse the concept of timely disposition of investigations and disciplinary/adverse actions," and that nothing could "adequately explain the extraordinary delay."

According to the arbitrator who handled this case, because the employee was "being categorically bypassed for positions for which he is best qualified precisely because the charges are pending, then clearly he is being prejudiced by a delay in the disposition of those charges." The arbitrator stated that while the Master Agreement "does not provide a specific definition of 'timely disposition,' in the abstract no reasonable construction of that phrase can characterize a disposition after fourteen months as timely." The arbitrator determined that the BOP violated the Master Agreement by suspending the subject in January 2002 for an event that occurred in December 2000 and rescinded the one-day suspension. The officer was reimbursed for lost wages resulting from the suspension.

* The Master Agreement is a collective agreement between the BOP and its employee representative, the Council of Prison Locals and the American Federation of Government Employees.

Footnotes

  1. BOP employees are required to sign the Standards of Employee Misconduct when they begin employment with the BOP. In addition, employees sign these standards every time that they are updated and also receive annual training on the standards.

  2. According to the OIA Chief, an allegation is not sustained if there is not a preponderance of evidence to support the allegation. An allegation is unfounded if there is no evidence to support the allegation and either the evidence contradicts the allegation or the allegation is preposterous.

  3. According to guidance from the LMR, a decision letter stating that the deciding official has chosen to take no action should read, "This is to notify you that I will not take any action on the notice of proposed disciplinary action [emphasis added] which you received on [date]."

  4. See Review of the United States Marshals Service Discipline Process, Report No. I-2001-011, September 2001, and Review of the Drug Enforcement Administration's Disciplinary System, Report Number I-2004-002, January 2004.

  5. The statutory requirements for documentation of disciplinary actions are found in Section 7503(c) and for adverse actions in Section 7513(e).

  6. For our review, documentation of imposed discipline included either the SF-50 or the Letter of Reprimand. The SF-50 is used to document disciplinary or adverse actions imposed as a result of sustained misconduct. While federal policy requires that the SF-50 be maintained, in cases of Letters of Reprimand the only proof that the employee was disciplined is the actual letter. Therefore, for this analysis we included the Letter of Reprimand as documentation of imposed discipline.

  7. Wentz v. United States Postal Service, 91 MSPR 176, 187 (March 13, 2002).

  8. In this review we examined two dimensions of consistency: 1) consistency of disciplinary outcomes by type of misconduct, and 2) consistency of the disciplinary process by selected job demographic and job characteristics. Our analysis of the second type of consistency is found on page 33.

  9. The investigation had a total of 27 subjects, but 2 of the subjects were charged with different offenses and 1 subject's disciplinary file could not be located. These three subjects were not included in our analysis.

  10. The mitigating factors mentioned in the decision letters included the subject's commitment to following post orders, the subject's acknowledgment of the seriousness of his or her behavior, the subject's length of employment with the BOP, and whether it was the subject's first disciplinary offense.

  11. BOP grade level and job series population data was provided by the BOP. BOP gender and racial population data comes from the "BOP Quick Facts," September 2003.

  12. In all tables, the percentage of "Employees with Sustained Allegations" is of those employees who were investigated. The percentage of "Employees That Were Disciplined" is of those employees with sustained allegations.

  13. The Correctional Officer Series includes positions involving the correctional treatment, custody, and supervision of criminal offenders. We included all other job series in the "Other" category.

  14. According to the "OIA Report for Fiscal Year 2003," of the 4,193 cases opened, 788 were Classification I and 1,287 were Classification II cases. The difference between these numbers and the total reported in the text above occurred because we analyzed only cases opened in FY 2003 involving BOP subjects for whom data was available. We did not analyze Classification III cases because of a lack of data.

  15. In the OIG's previous reviews of Department disciplinary systems, we noted that the U.S. Marshals Service has a standard of 90 days for completing its investigations of employee misconduct, and the Drug Enforcement Administration has a standard of 180 days.

  16. For investigations completed by the OIA, the process began when the OIG referred the case back to the OIA and ended when the OIA Chief signed the completed investigation. Data was available for 12 of the 17 investigations conducted by the OIA. For investigations completed by local investigators, this process began when the OIA (cont'd) authorized a local investigation and ended when the Warden signed the completed investigative report. Data was available for 39 of the 68 investigations conducted by local investigators. We did not include any of the 17 Classification III cases in this analysis because the local investigators do not need authorization from the OIA before beginning these investigations.

  17. Home duty is a temporary duty status of a staff member at his or her residence. It generally occurs when the agency has a need to have the employee away from the institution or facility for security or other reasons. It is similar to administrative leave, with the exception that the employee on home duty must remain in an approved location during his/her regular duty hours. Department officials must approve home duty lasting more than 10 days.