Review Of The Drug Enforcement Administration's Disciplinary System
Report Number I-2004-002
January 2004
The Office of the Inspector General (OIG) conducted this review to assess the effectiveness of the Drug Enforcement Administration's (DEA's) system for investigating allegations of employee misconduct and disciplining employees who are found to have committed misconduct in a reasonable and timely manner. Specifically, we reviewed whether allegations of misconduct were properly reported to and investigated by DEA's Office of Professional Responsibility (OPR); disciplinary penalties were fair and reasonable; the overall process was conducted in a timely manner; and the system was fairly administered.
The DEA established its current disciplinary system in December 1984, in response to a Title VII class action lawsuit filed by African-American special agents. In that lawsuit, the United States District Court (Court) for the District of Columbia found that the DEA's disciplinary practices (among other personnel practices) were discriminatory, and ordered the DEA to implement a non-discriminatory disciplinary system. The resulting three-tiered, centralized system consists of the OPR, which investigates allegations of employee misconduct; the Board of Professional Conduct (Board), which determines whether misconduct occurred and proposes disciplinary action; and the Deciding Officials, who make the final disciplinary decision.
RESULTS IN BRIEF
We found that the DEA's system for investigating employee misconduct generally functioned well. The investigations of alleged misconduct in general appear to be thorough and well documented, and provide a sound basis for making disciplinary decisions. We also concluded that the DEA usually imposed reasonable and relatively consistent discipline for confirmed misconduct.
However, we found problems in various cases that revealed weaknesses in DEA's disciplinary system. Weaknesses included inadequate guidance and the possible failure of the Deciding Officials to properly consider the Board's mitigation before applying additional mitigating factors which resulted in penalties that appear to be too lenient; the improper consideration of personal experience and opinion, and external factors by Board members and a Deciding Official when making disciplinary decisions; a failure to adequately document disciplinary decisions by the Board and Deciding Officials; the failure of DEA management to monitor the timeliness of the disciplinary process; and a lack of management oversight over the Deciding Officials.
Weak Guidance and Mitigation by Both the Board and the Deciding Officials Leads to Lenient Penalties. During our review, we found that the penalties imposed by the DEA for confirmed misconduct sometimes appeared overly lenient. In 9 of the 70 cases that we reviewed, involving 13 subjects, we concluded that the facts established by the OPR investigation or comments made by Board members in the supporting documentation justified a stronger penalty than was imposed by the Deciding Official.
We identified several factors that appeared to encourage the lenient penalties. The DEA's Schedule of Disciplinary Offenses and Penalties (Schedule) was last updated in 1992 and does not communicate DEA management's priorities. The defined offenses are generic and not DEA-specific, and the penalties - usually ranging from a Letter of Reprimand to Removal for each offense - are too broad to serve as effective guidance for the Board and Deciding Officials. Another factor that contributed to lenient penalties is that Deciding Official may mitigate the penalty without properly taking into consideration that mitigating factors that the Board already applied. This can result in penalties that may be reduced below the level that is appropriate for the offense.
Board Members and a Deciding Official Sometimes Improperly Consider Personal Experiences or Opinions, or External Factors When Making Disciplinary Decisions. In several cases we reviewed, we found comments that indicated Board members sometimes used personal experiences or opinions to influence their determinations. Also, prior to making a decision, one Deciding Official would sometimes contact employees' supervisors or others to obtain information about the employees. This was not consistent with DEA regulations that direct Deciding Officials to consider only the OPR investigative case file, the Board's proposal, and any written or oral statement by the employee.
The Board and Deciding Officials Do Not Adequately Document All Disciplinary Decisions. We could not determine the full extent to which imposed penalties may be too lenient and external factors were improperly considered because the documentation in many of the files was insufficient. In some cases, the Board members did not document the rationale for their disciplinary proposals. In other cases where individual Board members disagreed, the Board Chairman did not document his rationale for the final proposal. Also, in some cases the advice provided to the Board or the Deciding Officials by the Office of Chief Counsel was not documented. We also found that the Deciding Officials did not sufficiently document their reasoning when they deviated from the Board's proposed charges and penalties. Further, adverse action files frequently lacked documentation of the written or oral statements made by the employees in response to disciplinary proposals. In several cases, the Deciding Officials mitigated penalties based on these statements, but without documentation we were unable to determine whether the mitigations were appropriate.
DEA Management Failed to Monitor and Ensure the Timeliness of the Disciplinary Process. We found that during fiscal year (FY) 2001 and FY 2002, the DEA experienced excessive delays in processing disciplinary cases. During this period the delays occurred primarily at the Board, with backlogs of 60 to 110 cases from September 1999 through January 2002, resulting in processing delays of 90 to 120 days. These delays occurred because of staffing shortages at the Board and a requirement that the Board Chairman review every case file and sign all proposal letters for disciplinary action. We also found another source of delay - the requirement that the Board review field reports pertaining to routine official government vehicle (OGV) accidents and losses of government property.
According to the Board Chairman, during 2002 the DEA addressed the backlog by adding staff to the Board and permitting the Board Chairman to delegate review authority to another Board member for those cases where the proposed penalty was less than a 15-day suspension. Nonetheless, the backlog persisted for more than 29 months before the DEA took corrective action.
Moreover, we were unable to determine the current status of the DEA's disciplinary caseload because the DEA has no overall mechanism in place to track disciplinary cases as they progress through the system. Each of the three entities in the system maintains its own database. While OPR can use its database to track the timeliness of its investigations, neither the Board members nor the Deciding Officials can use their databases for that purpose. Instead, their databases are primarily repositories of prior proposals and decisions, which are used as a reference to ensure consistency when determining disciplinary penalties. In 2002 the DEA began developing a centralized disciplinary database, which should enable the DEA to better monitor timeliness.
Lack of Management Oversight over the Deciding Officials. We found that although the decisions of both OPR and the Board undergo review, there is no commensurate accountability for the Deciding Officials. Specifically, the DEA's disciplinary system lacks any mechanism to review final decisions when there is a significant discrepancy between the findings of the investigation, the Board's proposed charges and penalties, and the Deciding Official's final determination.
Survey Finds Some DEA Employees Perceive Disparate Treatment. In a survey of 50 DEA employees, 70 percent (35 employees) stated that they believed the DEA discipline system treated employees equitably. The remaining 30 percent stated either that DEA special agents or higher-graded employees received more favorable treatment. A complete evaluation of disciplinary disparity would require comparison of similar offenses and a methodology to account for inherent differences in the number and types of offenses that different groups may commit. 1 This kind of comprehensive analysis was beyond the scope of this review. The data that we reviewed for indications of disparity was mixed and inconclusive as to whether a dual standard of discipline exists.
For example, we found that allegations referred to OPR appeared to be investigated thoroughly and that, in most cases, the discipline administered for confirmed misconduct was reasonable. We also found that DEA special agents are investigated and disciplined at a higher rate than they are represented in the DEA workforce. Our examination of discipline cases involving SES employees found that the penalties appeared to be appropriate. We also found that employees in all grade levels were equally likely to be disciplined. All of the above facts tend to indicate that special agents and higher graded employees are not treated more favorably than other DEA employees. However, we also found that of the 13 individuals who we found received unreasonably lenient penalties, 12 were special agents. We also found that investigations of lower-graded employees resulted in termination more often than for other employees. Because the data that was available was mixed, we cannot conclusively prove or disprove the validity of some DEA employees' perception that special agents or higher-graded employees are treated more leniently.
Weaknesses Leave DEA Discipline System Vulnerable to Abuse. The problems we found with the lenient penalties, improper consideration of external factors, incomplete documentation, and lack of management oversight of the Deciding Officials leave the DEA discipline system at risk of being abused. That risk was borne out in a case that the OIG investigated and referred to the DEA for appropriate discipline. In that case, an off-duty DEA supervisory special agent detained his stepdaughter's 17-year-old boyfriend at gunpoint after they returned from a late-night rendezvous. The DEA agent also failed to inform the police when they arrived that he had detained the boy at gunpoint. The Board concluded that the agent had committed misconduct and proposed that he be suspended for seven days. However, the Deciding Official dismissed the charges, summarily declaring that the agent had not committed misconduct without any explanation or rationale for his decision.
RECOMMENDATIONS
We make eight recommendations to help the DEA ensure that its disciplinary decisions are reasonable, free of inappropriate external influences, well-documented, and timely. These recommendations include better guidance for the Board and Deciding Officials in making their disciplinary determinations, establishing standards to improve the timely processing of disciplinary cases, and requiring more effective DEA management of the overall disciplinary process. We recommend that the DEA: