Review Of The Drug Enforcement Administration's Disciplinary System
Report Number I-2004-002
January 2004
Title 5, United States Code, Chapter 75 establishes the legal framework for federal agencies to address employee misconduct through adverse actions, such as suspensions, demotions, and removals. It states that employees may be disciplined "for such cause as will promote the efficiency of the service." In other words, an agency may take disciplinary action when an employee's misconduct or unacceptable performance interferes with the agency's ability to carry out its mission. In addition to the adverse actions delineated in Chapter 75, agencies also impose other discipline, such as oral and written admonishments.
The Office of the Inspector General (OIG) reviewed the DEA's disciplinary system to assess how the DEA investigates allegations of employee misconduct, and how it imposes and enforces discipline for substantiated allegations. Specifically, we reviewed whether allegations of misconduct were properly reported and investigated; disciplinary penalties were fair and reasonable; the overall process was conducted in a timely manner; and the system was fairly administered.
To maintain an orderly, productive work environment, each agency should implement a disciplinary system for employees that communicates the behaviors that are unacceptable, provides penalties to deter employees from exhibiting the unacceptable behaviors, and consistently penalizes inappropriate behavior. In implementing a disciplinary system, agencies should identify standards of conduct that define the actions that interfere with the performance of the agency's mission. Agencies also may issue a schedule of penalties that are imposed upon employees who violate the standards of conduct. The DEA's Standard Schedule of Discipline Offenses and Penalties was last revised in 1992.
Federal agencies have leeway 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 "Douglas 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 reduced penalty compared to 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.3 In the 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." The MSPB also stated that it will mitigate agency-imposed penalties if the agency fails to weigh the relevant factors or clearly exceeds the limits of reasonableness.
History of the DEA Disciplinary System
The DEA's disciplinary system has changed over the years from a decentralized to a centralized system. When the DEA was created in 1973, regional field directors and headquarters office heads made all disciplinary proposals and decisions. This decentralized system resulted in complaints from DEA employees of inequitable treatment because they believed field managers in different regions were not imposing consistent penalties for similar offenses. In February 1977, African-American special agents filed a Title VII class action lawsuit against the DEA alleging racial discrimination in personnel and disciplinary practices.4
In response, in 1980 the DEA created the Board of Professional Conduct (Board), consisting of two Board members and one Board Chairperson, which proposed penalties for cases involving integrity issues or official government vehicle (OGV) misuse.5 Despite the creation of the Board, the disciplinary system remained largely decentralized because special agents in charge (SAC) and office heads still rendered the final disciplinary decisions. In addition, SACs and office heads were the proposing officials and the deciding officials for disciplinary cases that did not involve integrity issues or OGV misuse.
As a result of the Title VII lawsuit, on February 6, 1981, the United States District Court for the District of Columbia (Court) ordered the DEA to conduct validity studies for implementing a non-discriminatory personnel system, including a disciplinary system. Another Court order, issued on February 17, 1982, required the DEA, upon completion of the validity studies, to "proceed to develop and implement new, non-discriminatory employment systems with respect to…discipline."
In October 1982, the DEA centralized its disciplinary system by requiring that headquarters officials make all disciplinary decisions for proposed penalties in excess of a 14-day suspension. In December 1984, the DEA required that the Deciding Officials at headquarters make decisions for all proposed disciplinary actions.6
The DEA subsequently hired a contractor to review the revised disciplinary system and "determine whether punishment was being administered in a fair, equitable and non-discriminatory manner." While the study primarily reviewed factors related to race and gender, it also reviewed other factors such as geographic location of the employee, the size of the office, and the employee's grade. The study, issued in April 1987, concluded:
In general, the centralized conduct and discipline system in use appears to be achieving its goals of providing a fair, equitable, and non-discriminatory review of serious conduct and integrity violations by DEA Special Agents. In addition, the system seems to result in fair and non-discriminatory disciplinary actions.
In September 1988, the Court ruled that the DEA's disciplinary system met its requirements. Since then, there have been only minor modifications to the disciplinary system, such as the establishment of two full-time Deciding Official positions.
On July 11, 2001, the Attorney General signed an order giving the OIG jurisdiction to investigate allegations of misconduct against DEA employees. Accordingly, an OIG investigator reviews all allegations of DEA misconduct to determine if the OIG will conduct the investigation. The OIG normally investigates cases that involve criminal matters, non-criminal allegations against senior DEA employees, or cases where there is a particular reason for the OIG to investigate, such as if the DEA would have a conflict of interest. If the OIG declines to investigate, DEA's Office of Professional Responsibility (OPR) conducts the investigation.
Overview of the DEA's Disciplinary System
The entities that implement the DEA's disciplinary system primarily include OPR, the Board, and the Deciding Officials. OPR is part of the Inspection Division; the Board and the Deciding Officials are part of the Human Resources Division. OPR investigates the misconduct. The Board determines whether the misconduct occurred, based on the OPR investigative case file, and, if so, proposes a penalty. The Deciding Officials review the investigative case file, the Board's proposal, and any written statement submitted by the employee; consider any oral testimony provided by the employee; and make the final disciplinary determination.7 As shown in the chart below, each of the three entities operates independently, with no single individual or entity in charge of the overall disciplinary system.
Figure 1:
Organizational Structure of the DEA Disciplinary System
The DEA's Office of Chief Counsel and the Employee Relations Unit, in the Human Resources Division, also have roles in the disciplinary system. The Office of Chief Counsel reviews all disciplinary decisions that can be appealed to the MSPB, (i.e., those penalties in excess of a 14-day suspension); defends agency decisions before the MSPB; and provides legal advice, upon request, to OPR, the Board, and the Deciding Officials.
The Employee Relations Unit maintains the adverse action files, which contain documentation related to individual disciplinary decisions, and reviews all proposal and decision letters to ensure technical and procedural accuracy. The Employee Relations Unit also provides technical advice to the Board, the Deciding Officials, and other DEA officials regarding disciplinary actions.
The Office of Security Programs in the Inspection Division also has a role in the disciplinary system. OPR investigators provide the Office of Security Programs with information regarding investigations in which security violations occurred, or when they believe a subject's security clearance may need to be revoked or suspended. Conversely, the Office of Security Programs notifies OPR of security issues that are pertinent to an investigation.
The operations of the three primary entities involved in the disciplinary system - OPR, the Board, and the Deciding Officials - are described in detail below.
The Office of Professional Responsibility
OPR, managed by a deputy chief inspector and two associate deputy chief inspectors, investigates allegations of employee misconduct. As of September 16, 2003, OPR's staff included 6 senior inspectors and 28 inspectors, all at the GS-14 level or above, assigned to 6 investigative teams (2 in Washington, and 1 each in Miami, Newark, Los Angeles, and Dallas). Senior inspectors and inspectors are assigned to OPR on 2- to 3-year rotations. After completing their rotation in OPR, the inspectors typically fill management positions in the field. The inspectors generally are required to have ten years of investigative experience as DEA special agents, including supervisory field experience. The average DEA experience of the 28 OPR inspectors on staff as of September 16, 2003, was 18 years, ranging from 14 years to 23 years. The DEA experience of the six senior inspectors ranged from 16 years to 22 years.
OPR headquarters staff also includes two intelligence analysts, an Integrity Analysis and Support Staff, and an Administrative Support Unit. The intelligence analysts assist OPR inspectors by researching law enforcement databases, such as the National Crime Information Center and the Narcotics and Dangerous Drugs Information System, checking financial records, analyzing documentary evidence, and accompanying OPR inspectors to subject or witness interviews. The Analysis and Support Staff maintains OPR's statistical database and provides statistical analyses at the request of OPR management. The Administrative Support Unit provides general administrative support to OPR management.
Figure 2:
The DEA's Office of Professional Responsibility
The DEA's Standards of Conduct require DEA employees to refer to OPR headquarters all cases that involve violations of the standards of conduct, criminal or civil violations of laws and departmental codes, or where public notoriety reaches a level detrimental to the DEA or the Department of Justice (DOJ). OPR also receives allegations from external sources, such as law enforcement officials, confidential informants, cooperating witnesses, governmental agencies, and the public. During fiscal years (FY) 2001 and FY 2002, OPR received 695 allegations from internal sources and 134 allegations from external sources.
As described previously, since July 11, 2001, the OIG has reviewed all allegations received by the DEA OPR. For those cases that the OIG declines to investigate, one of two OPR Associate Deputy Chief Inspectors determines if an OPR inspector will conduct the investigation, or if OPR will delegate the investigation to a SAC or headquarters office head. Less serious administrative cases are generally delegated for investigation.8 An OPR inspector monitors all delegated cases for quality and timeliness. During FY 2001 and FY 2002, OPR investigated 696 cases and delegated 122 cases to SACs or office heads.9
During an investigation, the OPR inspector typically interviews the subject, complainant, witnesses, and other pertinent individuals, and gathers relevant documents and other evidence. When the investigation is complete, the inspector prepares an investigative report, without recommendations or conclusions, which is included in the investigative case file. According to the OPR Inspector's Handbook, which contains the procedures that all OPR inspectors must follow during an investigation, the investigative report "…must be factual and completely unbiased. The report should not contain any conclusions based on opinions. It should be a factual representation of events/actions." Both the senior inspector and Associate Deputy Chief Inspector review and approve the investigative case file before sending it to the Board.
The Board of Professional Conduct
The Board reviews OPR investigative case files to determine whether the alleged misconduct occurred, and, if so, proposes a penalty. Currently, the Board, which reports to the Director of the Human Resources Division, is comprised of seven full-time GS-15 employees - a Chairman and six Board members. The occupational series of the Board members can vary. The Board currently consists of five special agents, one intelligence analyst, and one diversion investigator. There is no set term for assignments to the Board - members may be replaced at the DEA Deputy Administrator's direction, or at their own request. An analyst, who researches databases and performs other analytical functions, and two employee relations specialists who write proposal letters to the employees, assist the Board.
The Board does maintain a procedural handbook, but this has not been updated since June 1995. Misconduct cases generally are assigned to the Board members based on their current caseload. From one to three Board members review each case, depending on the complexity and seriousness of the issues. If the Board concludes that the OPR case file is incomplete, it returns the case to OPR for further investigation. For example, the Board may request that OPR re-interview witnesses, interview additional witnesses, or obtain additional documentation or other physical evidence.
After the Board completes its review of the case file, including any additional information gathered by OPR, each Board member assigned to the case separately prepares a written summary of his or her findings, including a determination as to whether misconduct occurred, the offense committed, and a recommended penalty. In selecting the recommended penalty, the Board members consider certain Douglas factors, particularly the employee's length of service, prior work record, and prior disciplinary history.10 After all the summaries are completed, the Board members meet to discuss their conclusions and try to reach a consensus on the offense and penalty. If they cannot reach a consensus, the Board Chairman determines the proposed offense and penalty.
Once the Board makes a determination, it may recommend that the employee be:
If the Board proposes formal discipline, it sends a "proposal letter" to inform the employee of its findings.12 The letter lists the offense and the proposed penalty, and also includes a statement informing the employee of his or her right to review the OPR investigative case file, and to provide both a written and oral statement to the Deciding Official. The Board also sends copies of all proposal letters and the OPR investigative file to the Deciding Officials. In FY 2001 and FY 2002, the Board issued 691 proposal letters, including 231 Letters of Clearance, 169 Letters of Caution, and 291 formal disciplinary actions, and recommended that 174 investigations be administratively closed.
In addition to proposing discipline in misconduct cases, the Board imposes final discipline in cases involving OGV accidents and lost or stolen government property. For these cases, the field (i.e., personnel assigned by the SAC or office head to conduct the investigation) conducts the investigations and sends the case directly to the Board. Typically, one Board member reviews each case. In FY 2001 and FY 2002, the Board issued final decisions for 1,134 OGV accident cases, and 564 lost or stolen property cases.
The Deciding Officials
The Deciding Officials review the OPR investigative case files, the Board's proposal letters, any oral or written statements provided by the employee, and the employee's Official Personnel Folder (OPF). They determine whether the allegations of misconduct are sustained and, if so, decide penalties, taking into account both mitigating and aggravating Douglas factors.
There are two full-time Deciding Officials. Each is a GS-15 DEA employee. During our review, one Deciding Official was a special agent and one was a non-agent, but this make-up may vary. Similar to the Board, the Deciding Officials serve an indeterminate term, and may be replaced at their request or at the DEA Deputy Administrator's direction. Generally, the Career Board appoints the Deciding Officials. However, Office Heads and SACs have the authority to reassign individuals in core GS-14 and GS-15 positions within their components. The latest Deciding Official was appointed by the Director of Human Resources, in consultation with the Career Board.
Cases are assigned to the Deciding Officials based on their current caseloads. When deciding a case, DEA's personnel manual states that the Deciding Official "should consider only the reasons specified in the notice and the material in the file, and shall consider any answer of the employee and his or her representative." Similar to the Board, if the Deciding Official believes that he needs more information before making a decision, he can request OPR to investigate further. The Deciding Officials maintain a manual, however this manual has not been updated since early 1998.
After the Deciding Official reviews the investigative case file, the Board's proposal letter, written or oral statements presented by the employee, and the employee's OPF, the Deciding Official:
After the Deciding Official makes a decision, he sends a letter to the employee informing him or her of the decision, the penalty, and the date the penalty will be imposed. The penalty is imposed even if the employee appeals or files a grievance. However, should the employee win the appeal or grievance, the agency must make restitution to the employee. In FY 2001 and FY 2002, the Deciding Officials made 602 decisions in OPR misconduct cases.
In addition to making final disciplinary decisions for OPR cases proposed by the Board of Professional Conduct, the Deciding Officials also make disciplinary decisions in certain misconduct and performance cases proposed by SACs, Laboratory Directors, and office heads, such as unprofessional or disrespectful conduct, inattention to duty, misuse of a government credit card, and unauthorized absences. In these cases, field personnel conduct the investigation, and the SAC, Laboratory Director, or office head proposes the discipline and forwards the case to the Deciding Officials.14 In FY 2001 and FY 2002, the Deciding Officials made 43 decisions in personnel cases.
Scope and Methodology of OIG Review
We conducted the fieldwork from October 2002 through July 2003. We interviewed DEA headquarters officials from the Office of the Chief Inspector, OPR, the Office of Human Resources, the Office of Chief Counsel, and the Office of Security Programs. We interviewed the DEA Chief of Operations, each member of DEA's Board, and both of DEA's Deciding Officials. We interviewed all OPR inspectors located at the OPR's six field offices. We also interviewed officials from the OIG Investigations Division and from the DOJ OPR.
We analyzed FY 2001 and FY 2002 workload statistics for OPR, the Board, and the Deciding Officials. OPR provided statistics on the number of misconduct cases by employee grade level, position, work location, and by type of violation and resulting penalty. The Board provided the number of closed OGV accident and loss or theft of property cases for FY 2001 and FY 2002. The Deciding Officials provided the number of closed personnel cases for FY 2001 and FY 2002.
We also reviewed a sample of 100 closed disciplinary cases from FY 2001 and FY 2002 to assess whether the disciplinary penalties appeared to be fair and reasonable, and whether the overall process was conducted in a timely manner.15 We examined the OPR investigative case files as well as documents maintained by the Board and Deciding Officials, and the official personnel file of the subject.
To assist us in assessing the quality of the OPR's investigations, an OIG investigator reviewed a sub-sample of 18 of the more complicated OPR cases to determine if OPR investigators:
To assess the disciplinary actions taken against Senior Executive Service (SES) employees, we separately obtained and reviewed the investigative case summaries of all OPR investigations of SES employees for which a disciplinary decision was made in FY 2001 and FY 2002.16
In addition, we telephonically contacted a random sample of 50 DEA employees to obtain their perceptions and feedback on the disciplinary system relating to reporting misconduct, timeliness, the thoroughness and professionalism of OPR's investigations, and the fairness and consistency of penalties imposed by the Deciding Officials.17