Review Of The Drug Enforcement Administration's Disciplinary System

Report Number I-2004-002
January 2004


APPENDIX III

THE OIG'S ANALYSIS OF THE DRUG ENFORCEMENT ADMINISTRATION'S RESPONSE


On October 17, 2003, the Office of the Inspector General (OIG) sent a copy of the draft report to the Administrator for the Drug Enforcement Administration (DEA) with a request for written comments. The Administrator responded to us in a memorandum dated December 17, 2003. The DEA fully concurred with six of the eight recommendations and is assessing the feasibility of implementing the remaining two recommendations. The DEA also provided comments on one of the report sections. Our analysis of the DEA's response follows.

DEA RESPONSE

The DEA concurred with the OIG that the DEA's disciplinary system as a whole was functioning well but that improvements were needed. The DEA's specific comments on the report pertained to the section describing the Board members' and Deciding Officials' use of their personal experiences or opinions, or external information, in making disciplinary determinations. Specifically, -the DEA: 1) contended that two of the factors cited in the report as being used by a Board member to discredit a complainant were legitimate, and not inappropriate as the report concluded, and 2) stated that the report's characterization of these two factors as "outside information" was incorrect because the information was contained in the investigative file. Both of these issues are discussed below.

Legitimacy of Factors Used by a Board Member to Assess the Credibility of a Complainant

The disputed section of the report pertains to a case in which a member of the public alleged that DEA employees committed civil rights violations during the execution of a search warrant. The report concluded that some of the comments made by a Board member in evaluating the credibility of the complainant appeared to be inappropriately subjective. The DEA agreed that some of the comments made by a DEA official cited in the report, such as the fact that the complainant was a Rastafarian and that her letter was poorly written, did appear to be improper or irrelevant. However, the DEA stated that other comments, such as the complainant admitting to frequently smoking marijuana and having her complaint prepared by a "jailhouse lawyer," were legitimate factors to be considered in assessing her credibility.

In this case, the DEA's rationale for citing frequent drug use and use of a "jailhouse lawyer" as discrediting factors is not clear. If the complainant had been present and under the influence of marijuana while the search warrant was being executed, the DEA could argue that she was not credible because her perceptions were distorted. This, however, was not the case as only the complainant's children were present when the search warrant was being executed. It also is not clear how using a "jailhouse lawyer" to prepare a complaint would necessarily make the complaint less valid.

Inappropriate Use of the Term "Outside Information"

DEA is correct in stating that the factors cited by the Board member in this case are not "outside information." This section of the report encompasses both the use of personal experiences or opinions by the Board, and the use of external information by the Deciding Officials, and was incorrectly titled in the draft report. We have revised the title to appropriately reflect the contents of the section.

RECOMMENDATIONS

Recommendation 1: The DEA should provide better guidance to the Board and Deciding Officials on the factors that may be considered in making disciplinary determinations by: a) updating the Schedule of Disciplinary Offenses and Penalties; b) updating written procedures to guide the operations of the Board and Deciding Officials; and c) instructing the Deciding Officials to limit their disciplinary considerations to the information contained in official DEA files and information provided by employees or their authorized representatives.

Status: Resolved - Open.

Summary of DEA's Response: The DEA concurred with the recommendation and agreed to: a) convene a working group to determine revisions to the Schedule of Disciplinary Offenses and Penalties; b) review and update the Board's and the Deciding Officials' handbooks; and c) reinforce its instructions to the Deciding Officials regarding the parameters of information that they may consider. The projected completion dates are January 2004 for reinforcing its instructions, June 2004 for revising the Schedule of Disciplinary Offenses and Penalties, and September 2004 for updating the handbooks.

OIG's Analysis: We consider the recommendation resolved, but will keep it open until the DEA provides to us: a) a copy of the revised Schedule of Disciplinary Offenses and Penalties; b) documentation that the Board's and the Deciding Officials' handbooks have been revised; and c) a copy of the instructions issued to the Deciding Officials regarding the parameters of information that they may consider in making disciplinary determinations.

Recommendation 2: The DEA should document the Douglas factors considered in making its disciplinary decisions.

Status: Resolved - Open.

Summary of DEA's Response: The DEA concurred with the recommendation and agreed to reinforce its policy to document information on the Douglas factors considered in making disciplinary decisions. The projected completion date is March 2004.

OIG's Analysis: We consider the recommendation resolved, but will keep it open until the DEA provides to us documentation of the reinforcement of its policy.

Recommendation 3: The DEA should require that documentation maintained by the Board and Deciding Officials regarding each disciplinary case include: a) the opinions of each Board member assigned to review a case and the rationale for the Chairman's proposal in those instances when the individual Board members disagree; b) any advice from outside sources, such as the Office of Chief Counsel; and c) all oral and written statements made by employees to Deciding Officials.

Status: Unresolved - Open

Summary of DEA's Response: The DEA stated that it will take under advisement and review the merits of this recommendation and any potential alternatives. The projected completion date is January 2004.

OIG's Analysis: Because the DEA has not yet addressed the recommendation, we consider it unresolved. We will keep the recommendation open until the DEA provides to us an appropriate response as to how it will implement the recommendation.

Recommendation 4: The DEA should require that when the final disciplinary decisions differ from the proposed charges and penalties, the final decision letter contains a detailed explanation of the reasons for the difference.

Status: Resolved - Open

Summary of DEA's Response: The DEA concurred with the recommendation and agreed to issue guidance to the Deciding Officials to ensure that when final decisions differ from the proposed charges and penalties, the decision letter contains a detailed explanation of the reasons for the differences. The projected completion date is January 2004.

OIG's Analysis: We consider the recommendation resolved, but will keep it open until the DEA provides to us a copy of the guidance issued to the Deciding Officials.

Recommendation 5: The DEA should require that the DEA Inspection Division periodically review a sample of closed disciplinary case files to assess whether the basis for the disciplinary decisions was adequately documented.

Status: Resolved - Open

Summary of DEA's Response: The DEA concurred with the recommendation and stated that it will require the DEA's Human Resources Division to conduct annual inspections of closed disciplinary case files and to report the inspection results to the Deputy Administrator. According to the DEA, the first inspection is scheduled to be completed by March 2004.

OIG's Analysis: Although we recommended that the DEA Inspection Division conduct the inspections, the DEA's decision to have its Human Resources Division conduct the inspections is an acceptable alternative. We therefore consider the recommendation resolved, but will keep it open until the DEA provides to us the results of the first inspection.

Recommendation 6: The DEA should require that the Board and the Deciding Officials establish performance measures for timeliness, and record the amount of time it takes to process each case.

Status: Resolved - Open

Summary of DEA's Response: The DEA concurred with the recommendation and agreed to establish performance measures for timeliness. The DEA also stated that it intends to develop or acquire a database to track all disciplinary cases, and agreed in the interim to implement an Access database system for tracking purposes. The projected completion date for establishing performance measures is May 2004 and August 2004 for developing requirements analyses for the database.

OIG's Analysis: We consider the recommendation resolved, but will keep it open until the DEA provides to us documentation that performance measures have been established and a tracking system has been implemented.

Recommendation 7: The DEA should delegate to the appropriate special agents in charge and office heads responsibility for reviewing instances of routine OGV accident and losses of government property cases that do not involve misconduct issues.

Status: Unresolved - Open

Summary of DEA's Response: The DEA stated that it will conduct a review of the impact of this change on the special agents in charge and submit a proposal to the Deputy Administrator to address the realignment of this responsibility. The projected completion date is June 2004.

OIG's Analysis: Because the DEA has not yet made a determination to delegate this responsibility, we consider the recommendation unresolved. We will keep the recommendation open until the DEA provides to us an appropriate response as to how it will implement the recommendation.

Recommendation 8: The DEA should designate a single office to monitor the three-tiered system and prepare reports describing disciplinary activities, including, at a minimum: a) the processing time frames for OPR, the Board, and the Deciding Officials; b) statistics on offenses committed and disciplinary actions taken; c) trend analyses showing increases or decreases in specific offenses committed; and d) a description of disciplinary decisions where the final charges or penalties varied significantly from the Board proposal.

Status: Resolved - Open

Summary of DEA's Response: The DEA concurred with the recommendation and stated that the Deputy Administrator's office would be designated as the single office having overall responsibility for monitoring the disciplinary system. The DEA further stated that the Deputy Administrator's office will monitor the disciplinary system using reports provided by the HR Division and the Office of Professional Responsibility. The projected completion date is March 2004.

OIG's Analysis: We consider the recommendation resolved, but will keep it open until the DEA provides to us documentation officially designating this authority to the Deputy Administrator's office, and documentation showing the specific types of information and reports to be used by the Deputy Administrator's office for monitoring purposes.