MEMORANDUM FOR THE INSPECTOR GENERAL
||Glenn A. Fine
||Karen P. Tandy
||Comments on OIG Draft Report: Review of the DEA's Disciplinary System
The Drug Enforcement Administration (DEA) has reviewed the Inspector General's (OIG) draft report titled, Review of the DEA 's Disciplinary System, and the subsequent revisions made by the OIG that were provided to DEA on November 21,2003.
The DEA appreciates that the OIG report was complimentary of the overall effectiveness and fairness of DE A's discipline process. The report notes that DEA's "investigations of alleged misconduct in general appear to be thorough and well documented, and provide a sound basis for making disciplinary decisions." The DIG report also concluded "that the DEA usually imposed reasonable and relatively consistent discipline for confirmed conduct." DEA concurs that, as a whole, the system is functioning well; however, improvements need to be made. The DEA has provided an Action Plan (attached) to address each of the report's eight recommendations. The DEA will provide documentation of corrective actions to the GIG upon completion. In addition, DEA would like to comment on the following assessment in the report.
Consideration of Outside Information
The draft report concludes that DEA Board of Professional Conduct personnel and Deciding Officials sometimes consider "external information" in their deliberations (Draft Report, pp. 21-22).
Federal employees are entitled to review the information relied on by the agency in proposing and sustaining disciplinary action. The Merit Systems Protection Board (MSPB) in Appling v. Social Security Administration, 30 M.S.P.R. 375, 381 (1986), set forth the criteria governing when consideration of external information can invalidate an agency disciplinary action. In that case, the MSPB, ruled that disciplinary action is invalid if (1) a Deciding Official considered a new allegation or information that the appellant did not have the opportunity to review and respond to, (2) the Deciding Official was influenced by the new allegations or information, and (3) the consideration of the new allegations or information likely influenced the outcome of the proposed discipline. As a
result, DEA strives to ensure that all information that comes to the attention of the Board of Professional Conduct or the Deciding Officials does so through formal channels, and that all such information is provided to the affected employee for review and response. Indeed, as the draft report points out, under DEA procedures, Deciding Officials are instructed to "consider only the reasons specified in the notice [of proposed disciplinary action] and the material in the [investigative] file, and ...any answer of the employee and his or her representative." (Draft Report, p. 22)
We believe, however, that the second example cited on page 22 of the report may reflect an overly broad definition of the phrase, "outside information." We agree that, in that example, consideration of the complainant's status as a Rastafarian was, without more information, improper. We also view the fact that the complainant's letter was "written poorly" as irrelevant. We do not, however, share the same view with respect to the other factors whose consideration the draft report questions - for example, that the complainant admitted frequently smoking marijuana and appeared to have had her complaint prepared in part by a "jailhouse lawyer." We view these facts as legitimately reflecting upon the credibility of the complaint, and note that they appear to be matters discussed in the investigative file, and thus cannot be viewed as "outside information."
The DEA will continue to keep the OIG apprised of its actions to implement the report's recommendations to improve its discipline process. If you have any questions regarding this response, please contact Sheldon Shoemaker, Audit Liaison at 202-307-4205.
Review of the Drug Enforcement Administration's (DEA) Disciplinary System
- Provide better guidance to the Board & Deciding Officials on the factors that may be considered in making disciplinary determinations by:
a) updating the Schedule of Disciplinary Offenses & Penalties;
b) updating written procedures to guide the operations of the Board & Deciding Officials; &
c) Instructing the Deciding Officials to limit their disciplinary considerations to the information contained in official DEA files & information provided by the employee or their authorized representative.
- Convene working group to determine revisions to the current table of penalties; Provide draft to DEA Deputy Administrator for approval; Implement approved new Schedule of Disciplinary Offenses & Penalties (projected completion date 6/04)
- Review and Update written Handbooks for the Board and the Deciding Officials. (projected completion date 9/04)
- Reinforce its instructions regarding the parameters of information that deciding officials may consider. Instruction document will be officially issued to the deciding officials. (projected completion date 1/04)
- The DEA Administrator should require that the DEA document the Douglas factors considered in making its disciplinary decisions.
DEA will reinforce its policy to document information on the Douglas factors considered in making disciplinary decisions. (projected completion date 3/04)
- Require that documentation maintained by the Board & Deciding Officials regarding each disciplinary case include:
- the opinions of each Board member assigned to review a case & the rationale for the Chairman's proposal in those instances when the individual Board members disagree;
- any advice from outside sources, such as the Office of Chief Counsel; &
- all oral & written statements made by employees to Deciding Officials.
DEA will take under advisement and review the merits of this recommendation and any potential alternatives to ensure that:
- The rationale for the Chairman's proposal is clearly articulated in the Board's proposal
- Documentation from outside sources is maintained in accordance with legal and DOJ guidance; and
- Employees' oral & written statements are documented, as required.
Projected completion date 1/04.
- Require that when the final disciplinary decisions differ from the proposed charges & penalties, the final decision letter contain a detailed explanation of the reasons for the difference.
DEA will issue guidance to the Deciding Officials to ensure that when final decisions differ from the proposed charges and penalties, the decision letter will contain a detailed explanation of the reasons for the differences.
Projected completion date 1/04.
- Require that the Board & the Deciding Officials establish performance measures for timeliness, & record the amount of time it takes to process each case.
HR is currently collecting data to establish performance measures for timeliness. Once HR has analyzed at least 6 months of data, it will establish a baseline for performance measures. HR is working to develop or acquire a database that will track all cases, including OPR investigations, from start to finish. For the interim, an Access database system is being implemented for this purpose.
Data analyzed. (projected completion date 5/04)
Develop requirements analysis for database. (projected completion date 8/04)
- Designate a single office to monitor the three-tiered system & prepare reports describing disciplinary activities, including, at a minimum:
- the processing timeframes for OPR, the Board, & the Deciding Officials;
- statistics on offenses committed & disciplinary actions taken;
- trend analyses showing increases or decreases in specific offenses committed; &
- a description of disciplinary decisions where the final charges or penalties varied significantly from the Board proposal.
The Deputy Administrator's office will monitor the activities of all facets of the discipline process. The automated database will provide the Assistant Administrator for Human Resources the ability to continuously review the progress of cases, including the information required in Recommendation 5, and HR and CPR will institute routine reporting for the Deputy's office. (projected completion date 3/04)
- Require that the DEA conduct inspections that periodical review a sample of closed disciplinary case files to assess whether the basis for the disciplinary decisions was adequately documented.
DEA HR will conduct an annual self inspection of closed disciplinary case files and report its results to the Deputy Administrator as the oversight office. The first self inspection is scheduled to be completed by 3/04. (projected completion date 3/04)
- Delegate responsibility for reviewing instances of routine OGV accident & losses of government property cases that do not involve misconduct issues to the appropriate special agents in charge (SAC) & office heads.
DEA will conduct a review of the impact of this change on the SACs and submit a proposal to the Deputy Administrator to address the realignment of this responsibility. (projected completion date 6/04)