Review Of The Drug Enforcement Administration's Disciplinary System
Report Number I-2004-002
Reasonableness of Disciplinary Decisions
While we found that OPR investigations of employee misconduct were thorough and well documented, the disciplinary decisions based on these investigations were not always reasonable. The DEA sometimes levied lenient penalties due to a broad and generic schedule of penalties, a process that allows mitigation of penalties by both the Board and the Deciding Officials, and the failure by senior DEA management to adjust penalties for frequent offenses. We also found that Board Members and a Deciding Official inappropriately considered outside opinions or information when making disciplinary decisions. Finally, for some cases we were unable to assess the reasonability of imposed penalties because the Board and Deciding Officials did not document the reasons for their disciplinary decisions.
OPR Investigations are Thorough and Well Documented. The first critical element of the disciplinary system is the investigation of alleged employee misconduct. Based on the OPR investigations, the Board and Deciding Officials determine whether the employee committed misconduct and should be disciplined. We found that OPR's investigations of employee misconduct provided a solid foundation for the disciplinary process. Our review of 70 OPR case files found that the OPR's investigations of alleged misconduct were thorough and well documented. The OPR generally requires its inspectors to tape record their interviews and to include a typewritten, verbatim transcript of the interview in the investigative case file. The case files also contained other evidentiary material, such as telephone call logs and database search results. Due to the quality of the documentation included in the case file, a reviewer could easily follow the progress of the investigation from the receipt of the allegation to the conclusion of the investigation.
In addition to our general review of 70 OPR investigations, an OIG criminal investigator performed a detailed assessment of the investigation conducted in 18 of the more complex cases included in our sample. That assessment confirmed that OPR investigated leads and allegations, interviewed subjects and documented these interviews; that DEA employees who were interviewed had signed the appropriate warnings and assurance forms; and that the final investigative report contained pertinent information.
However, we found that the discipline imposed based on these investigations was not always reasonable.
Reasonability of DEA Penalties. During FY 2001 and FY 2002, OPR closed 602 employee misconduct investigations. After reviewing these investigations, the Deciding Officials determined that 386 employees had committed misconduct and cleared 216 employees of the allegations. In those cases in which misconduct was substantiated, about 57 percent of the employees received either a Letter of Caution or a Letter of Reprimand, 33 percent were suspended, and 9 percent were demoted or removed (Table 1).
Table 1: Final Disciplinary Actions for
Subjects of OPR Cases Closed During FY 2001 and FY 2002
|Disciplinary Action||Number of Subjects||Percent of Total Subjects|
|Letter of Caution||151||39|
|Letter of Reprimand||71||18|
|Demotion||1||Less than 1 percent|
|Source: DEA OPR
a Twenty-eight of the suspended subjects were involved in Title 31 cases, which involve willful misuse of an OGV and require, by Federal regulation, a suspension of at least 30 days.
b Total does not equal 100 percent due to rounding.
To assess whether the determinations of misconduct and penalties imposed by DEA were reasonable, we reviewed OPR investigative case files for the 105 subjects in our sample of 70 cases and the documentation prepared by the Board and the Deciding Officials in support of their determinations. Of the 105 subjects, the Board determined that 56 subjects committed misconduct, cleared 19, and closed the cases for the remaining 30 subjects without a determination.18 We reviewed the case files for the 19 subjects cleared of misconduct and found no instances where the Board's or Deciding Official's determination to clear the subject appeared to be unreasonable.
When misconduct did occur, however, we concluded that the penalties imposed were sometimes unduly lenient. We found that for 13 of the 56 subjects who committed misconduct, the facts of the case or the comments made by Board members in the supporting documentation appeared to justify a stronger penalty than was imposed by the Deciding Official. For example:
I noted that you reported the vehicle damage as an incident, which is not allowed when there is alcohol usage. Additionally, I note that your memorandum was inaccurate and did not report all the facts. This failure to report the situation constitutes Inattention to Duty and you are hereby cautioned to take greater care in your writing.
- OIG analysis. The penalty imposed appears too lenient. Despite the strong indications that a DEA group supervisor falsified an OGV accident report to cover-up an alcohol-related incident, the employee received only a Letter of Caution informing him to take greater care in his writing. The employee's supervisor received only a Letter of Reprimand despite having approved a report that was erroneous.
- OIG analysis. We question that the supervisor received only a Letter of Reprimand despite the fact that he had revealed the existence of a sealed warrant and the nature of a police investigation, causing the Board to question the subject's integrity. In addition, the supervisor admitted that he had knowingly engaged in outside employment without the required approval of DEA.
He took advantage of his personal relationship with [the operator] through his official capacity to obtain phone records without a subpoena. [The operator] lost her job because of it…His behavior cast a poor light on the professionalism of DEA special agents.
The Board made the same comments pertaining to the special agent who received the Letter of Caution, and added:
He had sex with [an operator]. Through her position with [the telecommunications company], she could be considered an SOI [Source of Information]. DEA policy prohibits relationships with SOIs.
- OIG analysis. Despite its assertions that the special agents had cast a bad light on DEA's professionalism, and possibly violated DEA's policy on fraternizing with SOIs, the Board recommended only Letters of Caution or Reprimand. Nonetheless, while the Board observed that the telephone operators lost their jobs over the incident, it proposed only minimal penalties for the DEA special agents. The Deciding Official agreed with these lenient penalties.
We also identified several deficiencies in the DEA's disciplinary system that encourage decisions that are not reasonable, including a disciplinary schedule of offenses and penalties that is overly broad and generic, 2 and a failure by management to adjust penalties based on increasing misconduct trends. These deficiencies, which lead to lenient penalties, are discussed in the following sections.
Overly Broad and Generic Schedule of Disciplinary Offenses and Penalties Provides Inadequate Guidance. The DEA's schedule of disciplinary offenses and penalties includes offenses that are too generic, with few offenses related to DEA's mission, and provides an overly broad range of penalties ranging from reprimand to removal for almost every offense. As a result, the schedule gives the Board and the Deciding Officials insufficient guidance in choosing a penalty.
Other than the possession or use of drugs by employees, the disciplinary schedule contained no offenses specific to the DEA's mission.20 Instead the DEA's disciplinary schedule is comprised mainly of general offense categories used by many federal agencies, such as unauthorized absences, failure to honor just debts, misuse of office, and gambling. In contrast, we reviewed the disciplinary schedules of ten other federal agencies and found that they identify offenses specific to the agencies' missions and priorities.21 For example:
Besides including agency-specific offenses, other agencies identify their priorities by subdividing offenses into different penalty categories. For example:
These schedules of penalties set a baseline to which the Deciding Officials apply the pertinent Douglas factors. Depending on the results of this application, the penalty could appropriately be lesser or greater than the baseline. It is important that management set a baseline penalty that reflects the agency's expectations and acts as a deterrent to future misconduct.
We found that the DEA's disciplinary schedule includes penalties that are overly broad, in that nearly all offenses are assigned a range of penalties from a Letter of Reprimand to removal.22 The other federal agency disciplinary schedules we reviewed assigned penalties more reflective of the severity of the offenses. For example:
The DEA Does Not Adjust Penalties to Effectively Deter Misconduct. The DEA has not changed its schedule of penalties since 1992. Further, the DEA does not routinely attempt to control misconduct by adjusting the baseline for disciplinary penalties to reflect increases in misconduct offenses. This results in penalties that are insufficient to deter specific types of misconduct.
For example, the DEA's typical penalty for losing a weapon is a 1-day suspension.23 During our review, DEA's Chief of Operations stated that he was concerned with increased incidences of special agents losing their weapons. Although the Chief of Operations had expressed his desire to increase the penalty to a 3-day suspension, and the Board was accordingly proposing that penalty, the Deciding Officials continued to reduce the penalty for losing a weapon to a 1-day suspension to remain consistent with past practices. The Deciding Officials told us that, absent written policy, the Douglas factors required that the penalty be consistent with what was imposed in the past.24
In this instance, DEA management did not take the appropriate steps to increase the penalty in response to an increase in the offense. To do so, management must first notify employees of the increased penalties, apply the increased penalty only to future misconduct, and apply the penalty consistently. Although the Deciding Officials are correct to consider past practices when applying penalties, management can increase the baseline penalty for future offenses.
The Board and the Deciding Officials Mitigate Penalties. We found that both the Board and Deciding Officials consider the Douglas factors when choosing penalties, which could result in excessive mitigation of the penalties, if not balanced properly. The appropriate application of the Douglas factors requires that they be weighed against each other. The Douglas decision states:
Not all of these [Douglas] factors will be pertinent in every case, and frequently in the individual case some of the pertinent factors will weigh in the appellant's favor while others may not or may even constitute aggravating factors. Selection of an appropriate penalty must thus involve a responsible balancing of the relevant factors in the individual case.
In the DEA's disciplinary process, the Board considers some of the Douglas factors in determining a proposed penalty and the Deciding Officials consider the remaining factors.25 If the deciding official does not carefully consider the Board's mitigation, the potential result is an overly lenient penalty, which may no longer reasonably correspond to the offense committed.
For example, the typical penalty for an offense may be a 1-day suspension. If the Board determines that the employee who committed the offense is a long-term employee who has received excellent performance evaluations and who has never been disciplined, the Board may mitigate the typical suspension penalty to a proposed Letter of Reprimand. If the Deciding Official does not properly consider the Board's mitigation, additional mitigating factors may result in the penalty being further reduced to a Letter of Caution.
A Board member and a Deciding Official expressed concerns that the Douglas factors were not being properly considered. The Board member stated that he believed that mitigating penalties was the responsibility of the Deciding Officials, and expressed concern that if the Board reduced a penalty and then the Deciding Official further mitigated it, the penalty would be reduced too much. The Deciding Official agreed, stating that he believes some of the proposed penalties he receives are already too low. However, he believed that if, for example, he identified additional mitigating circumstances, he was required to further lower the penalty. This may result in an overly lenient penalty.
Board Members and Deciding Officials Consider Personal Experiences or Opinions, or External Information. We found that Board members did not limit themselves to examining only the facts determined by the OPR's investigation, but sometimes used personal experiences or opinions to influence their determinations. For example, a police department chief alleged, and the OPR investigation confirmed, that a GS-14 DEA group supervisor had interfered with a police investigation of a police officer for disability fraud by alerting the subject (who was a friend) of a sealed search warrant. One Board member sympathized with the employee, citing the employee's rationale that he was not trying to warn his friend of the investigation, or otherwise thwart the investigation, but was acting out of concern for a friend. The Board member wrote: "I buy this. I would have done the same." The employee received a Letter of Reprimand.
In another case, a member of the public alleged that DEA employees committed civil rights violations during the execution of a search warrant. The investigation found that when the search warrant was executed, the parents were not at home. The 18-year-old son and the 17-year-old daughter of the target were handcuffed and transported for questioning. Neither teenager was provided with shoes or a coat, even though the incident took place in a north central state during the winter. Regarding the case, a Board member wrote a list of ten "considerations" to discredit the complainant, including the fact that she was a Rastafarian, that she admitted to frequently smoking marijuana, and that her letter was written poorly and demonstrated that she had a "jail house lawyer" assist her with it. Regarding the allegations that the minor female was improperly handcuffed and brought in for questioning, the Board member wrote: "I do not see what the big deal is. I have handcuffed, detained and arrested many juveniles." Three DEA agents were cleared of the civil rights violations, although each received a Letter of Caution pertaining to the inappropriate detainment, transportation, and questioning of the minor.
We also found that one Deciding Official sought outside opinions when deciding cases. During our discussions with this Deciding Official, he stated that, prior to making a decision, he sometimes contacts the employee's SAC or others familiar with the employee to obtain information about the employee. While these actions may be well intended, it is improper for Deciding Officials to solicit or use such information in making their determinations. According to Section 2752 of the DEA Personnel Manual, in making a disciplinary decision the Deciding Official "should consider only the reasons specified in the notice [of proposed disciplinary action] and the material in the [investigative] file, and shall consider any answer of the employee and his or her representative."
Board Determinations Lack Supporting Rationale. To ensure that disciplinary decisions are reasonable, the decision should be sufficiently documented so that both internal and external entities can clearly understand the rationale behind the decisions. Although in general the Board's records sufficiently supported its disciplinary proposals, 7 of the 14 cases that we reviewed lacked adequate supporting documentation to assess the rationale of the Board's determinations.26
We identified the following documentation deficiencies in the 14 disciplinary cases:
Deciding Officials' Decisions Were Not Well Documented in the Adverse Action Files.27 Agencies are required to document the basis for their disciplinary decisions according to 5 CFR, section 752.101, which states, "Copies of the notice of proposed action, the answer of the employee if written, a summary thereof if made orally, the notice of decisions and reasons therefor, and any order affecting the suspension, together with any supporting material, shall be maintained by the agency."28 The DEA's personnel manual further requires that, "If an oral answer is made, the individual hearing the answer must make, or cause to be made, a summary of that oral answer."
We found that the adverse action files were incomplete and that the Deciding Officials did not sufficiently document their decision-making rationale in those cases where the final decision deviated from the Board's proposed disciplinary action. As a result, we were unable to evaluate fully the reasonableness of the Deciding Officials' final decisions.
Employees' Written and Oral Statements Often Were Not Included in the File. The adverse action files should include any written statements or summaries of oral statements that the employee provided because they are critical in determining the reasonability of a decision. We often found that employee statements were missing from the adverse action files or, in the case of oral statements, not properly summarized. Specifically, we found:
Deciding Officials Did Not Document the Reasons for Deviating From the Board's Proposals. In 6 of the 70 OPR cases in our sample, the Deciding Official's final penalty deviated from the Board's proposed penalty. We reviewed these six cases to determine whether the adverse action files contained documentation supporting the basis for these deviations. We found that none of the files adequately documented the reasons for the deviations. Even though the Deciding Officials have a standard form on which they record the applicability of each Douglas factor, this form was not in the six files.
We also found that the final decision letters did not always explain the specific circumstances that resulted in the changed penalty. In some cases, the Deciding Official referred to the employee's written or oral statement as the basis for mitigation. However, five of the six decision letters did not contain a sufficient explanation. For example, in one case the Board proposed a 14-day suspension, but the Deciding Official's decision letter simply stated, "I find that the charge cited … is fully supported by the evidence and is sustained. However, I have decided to mitigate the penalty based, in large measure, on your written response. Therefore, it is my decision that you are suspended for 1 calendar day…" In this instance, the Deciding Official provided no details on what elements in the written statement justified such extensive mitigation.
DEA officials told us that they did not believe that it was necessary for the decision letters to contain lengthy justifications or explanations because the proposal letters issued by the Board are very detailed. However, without the employee's written or oral statements, the Douglas factor form, and an explanation in the decision letter to the employee as to why the final decision differed from the proposed penalty, the justification for the DEA's disciplinary decisions are not apparent and appear arbitrary. The Deciding Officials told us that they are primarily concerned with documenting cases that can be appealed to the MSPB. In our opinion, it is important to document all cases, especially those cases in which the Deciding Officials change the proposed penalties or dismiss the charges.
Example Illustrates the Inability of the System to Ensure Disciplinary Decisions are Reasonable. We discuss in detail one case in which the Board's proposed penalty differed considerably from the Deciding Official's final decision without any explanation from the Deciding Official discussing the reasons for his decision.
Because the investigation conducted by the OIG determined that the incident had occurred, and the Board found that the incident occurred and recommended a suspension, we were troubled that the Deciding Official failed to sustain the charges. We interviewed Board members and the Board Chairman and they continued to believe that the subject had acted inappropriately and should have been suspended.
The OIG investigated an allegation that a DEA supervisor engaged in off-duty misconduct by pointing a handgun at a 17-year old male juvenile. The incident occurred after the DEA supervisor discovered that his 15-year-old stepdaughter had snuck out of the house during the night and the DEA supervisor and his wife suspected that the girl was with a 17-year-old boy who had previously taken her to a high school dance. The supervisor waited in his car to observe who brought her home. At 5:30 a.m., the stepdaughter returned with a 17-year-old boy. The DEA supervisor blocked the juvenile's vehicle with his own vehicle and, with his weapon pointed at the boy, ordered the boy to get out of the car and lie prone on the grass. The DEA supervisor took the boy's car keys and detained him until the police arrived. The police refused to take action against the boy because the stepdaughter had gone out with him voluntarily, so no crime was committed. The DEA supervisor did not inform the police that he had pointed his handgun at the boy. The boy's mother subsequently learned that the DEA supervisor had pointed a handgun at her son and lodged a complaint against the DEA supervisor with the local police department.
The Board reviewed the facts of the case and charged the supervisor with Poor Judgment and Conduct Unbecoming a DEA Special Agent. The Board proposed a 7-day suspension for the supervisor, stating:
Having identified [the juvenile] as the individual who had gone out with your stepdaughter previously, your conduct in forcing him to lie on the ground for approximately 15 minutes, taking away his keys, and further detaining him for the police to arrive when, in fact, you had no reason to believe a crime had been committed, constitutes Poor Judgment on your part…your action in this matter were… inappropriate and were an embarrassment to the DEA and the Department of Justice…. Your conduct in minimizing your action and in omitting the fact that you pointed a firearm at a juvenile… could have called your integrity and the integrity of the agency into question.
The supervisor provided a written response to the Board's proposal in which he did not deny the incident, but stated that he strongly believed that his actions were appropriate. The Deciding Official reviewed the case file, the Board's proposal, and the supervisor's written statement and took an oral statement from the supervisor. The Deciding Official then issued a decision letter clearing the supervisor of all charges. The Deciding Official's final decision letter did not provide details as to why the charges were dismissed, but merely stated:
Based on my review of the facts and circumstances in this matter, to include your written response [date], and your oral response [date], I do not sustain either of the charges proposed. Therefore, I am issuing this Letter of Clearance. This case is closed.
Because the Deciding Official failed to provide an explanation in the decision letter of why he dismissed the charges, on April 15, 2003, the OIG requested that the DEA provide a written explanation from the Deciding Official of the reasons for his decision. On May 8, 2003, the DEA provided a written statement from the Deciding Official in which he explained that he believed the facts of the case demonstrated that the subject did not know for sure that his stepdaughter was with the 17-year-old, and therefore he acted to ensure his stepdaughter's safety. Furthermore, the Deciding Official stated that he believed there was no evidence to support a finding that the supervisor intentionally omitted a fact or was otherwise less than candid to the police. He added that the supervisor's written and oral response supported his interpretation.
We reviewed the documentation maintained by the Deciding Official for this case. The Deciding Official told us that because he thought his decision would be controversial, he prepared a Douglas factor checklist. In this case, however, preparing a Douglas factor checklist was unnecessary because it should only be prepared to determine a penalty if the charge is sustained, not if the subject is cleared of the charges. The checklist stated, as a mitigating factor, that the DEA supervisor "Approached situation that was perceived as potentially threatening in a professional law enforcement style." In response to the Douglas factor pertaining to the effect of the offense on the subject's ability to perform the job, the Deciding Official wrote, "None based on oral representation re: ongoing relations w/state & local officials."30
The Deciding Official defended his decision by stating that he "had almost been killed once by a 17-year-old", and that he could therefore understand the circumstances. He also stated that the incident could not have been that serious because he knew that the stepdaughter and the boyfriend continued to date after the incident.
This case is especially problematic because the conclusion drawn by the Deciding Official is so divergent from the unanimous conclusion of six Board members and the OIG investigators that a serious offense was committed. Moreover, the Deciding Official did not document any reason for his decision. And, because the employee is a GS-15 supervisory agent, the decision raises a concern that he was given special consideration.
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 the employee or their authorized representative.
Recommendation 2: The DEA should document the Douglas factors considered in making its disciplinary decisions.
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.
Recommendation 4: The DEA should require that when the final disciplinary decisions differ from the proposed charges and penalties, the final decision letter contain a detailed explanation of the reasons for the difference.
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.
Timeliness of Processing Disciplinary Cases
During FY 2001 and FY 2002, the DEA experienced excessive delays in processing disciplinary cases. We found that DEA management failed to monitor the timeliness of the disciplinary system or take timely corrective action. In addition, some DEA employees criticized the disciplinary system for its lack of timeliness, citing the potential negative effect on their careers.
To evaluate the DEA's timeliness in processing disciplinary cases, we tracked the time it took for each of the three entities to process the 70 OPR cases in our sample.31 When calculating the entity's processing time, we did not count delays that we identified through file documentation as beyond the entity's control.32
To define timeliness, we reviewed DEA performance standards or, when these were not available, determined reasonable timeframes through interviews with DEA officials. Only OPR had established written performance standards addressing timeliness. According to Chapter 8310 of DEA's Planning and Inspection Manual, OPR should complete its investigations within 180 days of receiving the allegation.33 During discussions, the Board Chairman and Deciding Officials told us that their informal goal was to process cases within 60 days.
The mean processing time of the cases in our sample was 334 days, with a median of 327 days. The mean processing time for each entity is shown in Chart 1.
Chart 1: Processing Time for DEA Disciplinary Cases
Source: OIG Sample Review of OPR Cases
OPR Delays Were Infrequent. We found that OPR exceeded its goal of 180 days to complete investigations in 28 of the 70 cases (40 percent) that we reviewed. However, in only 6 of these 28 cases (9 percent of the total cases) did it appear that the delays were within OPR's control.34 In these six cases, OPR took from 6.8 months to 15.5 months to conduct the investigation.
One of OPR's Associate Deputy Chief Inspectors reviewed the investigative case files for the six cases. She was unable to determine a reason for the delays in three cases, and attributed the delays in the remaining cases to either re-interviewing a subject due to a faulty tape recorder (4-month delay) or DEA personnel taking leave during the holiday period.
Board Delays Were Frequent, But Have Diminished. During FY 2001 and FY 2002, the Board experienced significant processing delays. Of the 70 cases in our sample, 54 had been sent to the Board.35 In 46 of those 54 cases (85 percent), the Board took longer than 60 days to issue a proposal letter. The mean and median processing times for the 54 cases were 116 days. The Board's processing times for the 54 cases are shown in Chart 2.
Chart 2: Board Processing Time for Sampled Cases
Source: OIG Sample Review of OPR Cases
The Board Chairman acknowledged that large backlogs occurred from September 1999 through January 2002. According to the Board Chairman, during this 29-month period, the Board had a backlog of 60 to 110 cases to review, and received an additional 20 new cases each month. As a result, cases sometimes remained at the Board for 90 to 120 days before the Board Chairman assigned them to a Board member for review. According to the Board Chairman, several factors caused the backlogs:
According to the Board Chairman, in late 2002 the Board was able to reduce its backlog, and is able to process accident and loss or property cases within 30 days, and most OPR cases in 30 to 60 days.36 He cited several factors that have resulted in more timely processing of cases. First, after recognizing the large number of cases that the Board reviewed, the Chairman requested and received authorization for more Board member positions. As a result, three Board members were added in mid-2002 and a fourth was added in mid-2003, bringing the total number of Board members to six. In late 2000, the DEA temporarily allowed the Chairman to delegate signatory authority to another Board member for those cases in which the penalty is less than a 15-day suspension. And, in late 2001, the DEA assigned a second employee relations specialist to the Board.
In addition to the delays noted by the Chairman, we identified another source of delay - the requirement that the Board review the field reports pertaining to routine OGV accidents and losses of government property. OPR does not investigate these cases because they do not involve integrity or criminal issues. Instead, field personnel investigate these cases and send them to the Board for the final decision. We question whether these cases should be sent to the Board for the following reasons:
The DEA Chief of Operations, the Board, and Human Resource Division officials were unable to identify any reasons the Board needed to review these cases, other than that the Board had always done so.
Deciding Official Delays Occurred Infrequently. We found that, during FY 2001 and FY 2002, the Deciding Officials generally issued decision letters timely. The mean processing time was 25 days and the median was 15 days.37 The Deciding Officials issued a decision within 60 days for 48 of the 54 cases (88 percent). The processing times for the 54 cases are shown in Chart 3.
Chart 3: Deciding Officials' Processing Times for Sampled Cases
Source: OIG Sample Review of OPR Cases
DEA Management Does Not Monitor Timeliness. Because the DEA did not track cases as they progressed through the disciplinary system to determine when and where delays occurred, excessive backlogs continued for more than two years before the DEA took corrective action.
Currently, OPR, the Board, and the Deciding Officials maintain separate databases. While OPR can use its database to track the timeliness of its investigations, neither the Board nor the Deciding Officials can use its database to track the timeliness of a specific case. Their databases are primarily repositories of prior proposals and decisions and are used as a reference to ensure consistency of disciplinary actions. The DEA is currently developing a consolidated disciplinary database for OPR, the Board, the Deciding Officials, the Human Resources Division, and the Office of Chief Counsel. The DEA's efforts to consolidate its multiple disciplinary databases began in mid-November 2002. The DEA estimates that the implementation process will take at least two years. This new system should enable DEA senior management to better monitor timeliness.
Delays Negatively Impact DEA and its Employees. We found that the lengthiness of disciplinary investigations negatively affects DEA employee morale. During our telephone survey, we spoke to several DEA employees who either had been or were being investigated. They complained of the stress of being placed on limited duty for a year or more. This lack of timeliness was mentioned by 40 percent of the DEA employees we contacted during our telephone survey and was the predominant complaint regarding the disciplinary system. These employees tended to blame OPR for the lack of timeliness. However, as described earlier, we found that while OPR investigations take the greatest portion of time in the disciplinary process, OPR generally conducts its investigations in a timely manner. During the period that we reviewed, only the Board incurred significant avoidable delays.
In addition to affecting morale, the lengthy disciplinary process is a productivity issue for the agency. The work activities and career opportunities of employees investigated by OPR may be severely restricted while the process is ongoing. Subjects of OPR investigations may be placed on limited duty, during which time they are not allowed to work overtime, operate an OGV, carry a firearm, or carry DEA credentials or badges. According to the DEA's Agents Manual, special agents on limited duty are prohibited from "participating in surveillance, arrests, searches, and… developing new enforcement matters." In addition, employee's promotions and transfers are delayed while they are the subjects of an OPR investigation.
During the two-year period that we reviewed, the DEA investigated 688 of its employees.38 That represents a considerable portion of the agency's approximately 9,300-person workforce. During the disciplinary process, the agency may be denied the full services of these employees. Therefore, more timely processing of disciplinary cases will not only minimize the negative impact on employees, but also more quickly return the services of those employees who are cleared of misconduct charges, and more promptly remove employees who are found guilty of egregious or criminal conduct.
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.
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.
Consistency of the Disciplinary System
In a survey of 50 DEA employees, 70 percent stated that they believed the DEA disciplinary system treated all employees equitably. However, 30 percent of DEA employees we surveyed believed either that special agents receive preferential treatment or that higher-graded employees receive preferential treatment in the DEA's disciplinary system. The data that we were able to review was mixed and inconclusive as to whether a dual standard of discipline exists.
An effective disciplinary system treats employees consistently. The likelihood and severity of discipline should not depend on factors such as an employee's position, grade, race, ethnicity, and gender. To examine indications of position and grade level disparity, we analyzed OPR data related to DEA disciplinary cases, reviewed individual cases during our sample review, and conducted a telephonic opinion survey of a random sample of 50 DEA employees. We also reviewed several external studies that examined racial, ethnic, and gender issues related to DEA discipline.
Some DEA Employees Perceive Favoritism in DEA's Disciplinary System. In our telephone survey of 50 DEA employees, we found that 30 percent of the respondents believed that either special agents or higher-graded employees receive more favorable treatment than non-agents and lower-graded employees. Regarding disparate treatment according to occupational position, 4 of 50 (8 percent) of the employees we surveyed stated that they believed special agents are treated more leniently than those in other positions. Regarding disparate treatment by grade level, 11 of 50 (22 percent) of the employees we surveyed stated that they believed that managers were less likely to be charged with misconduct and, when charged, are more likely to receive lenient penalties. None of the respondents provided specific examples of the favorable treatment that they believed existed. Comments from DEA employees included:
The remaining 35 respondents to our telephone survey (70 percent) stated that they did not perceive any disparity in the DEA's disciplinary system related to grade level or position. In fact, six of the employees cited recent cases in which a SAC or an Assistant SAC was disciplined as evidence of the lack of favoritism in the system.
While an evaluation of gross numbers of disciplinary actions across groups cannot confirm consistent treatment, we examined the available data related to disciplinary actions by employee occupational category and by grade level to determine if any clear trends were evident. As described below, the data that we were able to review was mixed and inconclusive as to whether a dual standard of discipline exists. A complete evaluation of allegations of disciplinary disparity would require the comparison of similar offenses and a methodology to account for inherent differences in the number and types of offenses that different groups may commit. Such a detailed analysis was beyond the scope of this review.
Data Regarding DEA Special Agents. We compared the number of investigations conducted in FY 2001 and FY 2002, and how many of those investigations resulted in discipline, for special agents, chemists, diversion investigators, intelligence analysts, and support/other staff.39 We found that, as compared to their representation in the DEA workforce, DEA special agents were more likely to be investigated for alleged misconduct. While special agents constitute 49 percent of the DEA workforce, they are the subjects of 73 percent of DEA's misconduct investigations (Table 2).
Table 2: Subjects Investigated by the DEA OPR (by Position)
All Cases Opened During FY 2001 and FY 2002
|Position||Number of Subjects Investigated||Percent of Subjects Investigated||Percent of the DEA's Workforce|
|Source: DEA OPR|
While special agents were more likely to be investigated, we found that a slightly lower percentage of those investigations resulted in discipline (as opposed to clearance) than did investigations of employees in other occupational categories. For closed investigations, 62 percent of the investigations of special agents resulted in discipline.40 In contrast, from 65 percent to 82 percent of the investigations of employees in other occupations resulted in discipline (Table 3).
Table 3: Subjects Disciplined by the DEA
All Closed Cases (other than Administrative Closure)
FY 2001 and FY 2002
|Position||Percent of Subjects Disciplined||Percent of Subjects Cleared|
|Source: DEA OPR|
In reviewing the closed cases that resulted in discipline, we found that despite a slightly higher clearance rate, special agents were still more likely to be disciplined than other occupations, given their proportions in the DEA workforce. Specifically, special agents made up 49 percent of the DEA workforce, but were 67 percent of the subjects disciplined (Table 4).
Table 4: Subjects Disciplined by the DEA (by position)
All Closed Cases Resulting in Discipline
FY 2001 and FY 2002
|Position||Number of Subjects Disciplined||Percent of Subjects Disciplined||Percent of the DEA Workforce|
|Source: DEA OPR|
The greater percentage of special agents investigated for alleged misconduct may be attributable to a number of factors. For example, the nature of the work of special agents requires them to carry weapons, participate in raids, have access to seized drugs and cash, and have more contact with the public. Further, many of their activities require judgments - for example, the amount of force necessary when arresting a suspect - that may be subject to review. Consequently, they are exposed to more situations that could lead to misconduct investigations than are non-agents. Therefore, despite the higher investigation, clearance, and discipline rates for special agents, the above data do not necessarily mean that special agents are treated more harshly than other employees.
In addition to the above data, we noted that in our sample of 70 cases, of the 13 investigation subjects whom we found to have received penalties that appeared too lenient, 12 were special agents. However, the small number of cases does not support a systemic finding of favorable treatment for special agents.
Data Regarding Discipline of Higher Graded Employees. We compared the investigations and penalties imposed in FY 2001 and FY 2002 for employees at each grade level. We also identified the distribution of employees at each grade level in the DEA population. In reviewing cases opened in FY 2001 and FY 2002, we found that, given their relative proportions in the DEA workforce, higher-graded employees (i.e., SES, GS 15, and GS-14 employees) were slightly more likely to be investigated than lower-graded employees. For example, SES employees comprised 0.8 percent of the DEA workforce, but made up 2.5 percent of subjects investigated. In contrast, employees at the GS-8 level and below comprised 16.3 percent of the workforce, but were 8.5 percent of the subjects investigated. Possible reasons for this variance are that higher-graded employees are more likely to be involved in making decisions or taking actions that can lead to charges of misconduct. Employees in the middle grades (GS-9 to GS-13) were investigated in about the same proportion that they appear in the DEA population (Table 5).
Table 5: Subjects Investigated by OPR (by Grade Level)
All Cases Opened During FY 2001 and FY 2002
|Grade Level||Number of Subjects Investigated||Percent of Subjects Investigated||Percent of the DEA Workforce|
|GS-8 and below||58||8.5||16.3|
|Source: DEA OPR
a Total does not equal 688 as in Table 2 because several subjects had unknown grade levels.
When we examined the closed cases that resulted in discipline, the variance between higher-graded employees and lower-graded employees decreased, and the distribution of disciplined employees at each grade level reflected the distribution of employees by grade level in the DEA population. In particular, the percentage of disciplined SES employees (0.8 percent) exactly matched the percentage of SES employees in the DEA population (also 0.8 percent). Disciplined employees at the GS-08 level and below (13.1 percent) more closely matched the 16.3 percent proportion these employees represent in the DEA population (Table 6).
Table 6: Subjects Disciplined by DEA (by Grade Level)
All Closed Cases Resulting in Discipline
FY 2001 and FY 2002
|Grade Level||Number of Subjects Disciplined||Percent of Subjects Disciplined||Percent of the DEA Workforce|
|GS-8 and below||50||13.1||16.3|
|Source: DEA OPR|
We also examined how higher-graded employees were disciplined as compared to lower-graded employees. We found that employees at higher grade levels received a higher percent of clearances while employees at lower grade levels received a higher percentage of removals. Specifically, we found that two-thirds of SES employees received a Letter of Clearance, while less than one-third of employees at the GS-9 level or below received a Letter of Clearance. Further, no SES or GS-15 employees were removed, while 22 percent of employees at the GS-8 level or below were removed. The distribution of penalties by grade level is shown in Table 7.
Table 7: Percentage of Penalties by Grade Level
OPR Closed Cases (FY 2001 and 2002)
|Number of Cases||9||21||107||193||104||45||2||40||59|
|Disciplinary Action||SES||GS-15||GS-14||GS-13||GS-12||GS-11||GS-10||GS-9||GS-8 - lower|
|Letter of Clearance||67||43||33||40||34||33||0||28||15|
|Letter of Caution||11||14||34||24||28||13||0||33||22|
|Letter of Reprimand||11||14||11||10||13||20||0||5||19|
|Source: DEA OPR
a Totals may not equal 100 due to rounding.
We examined the variance between the discipline imposed for SES employees and the discipline imposed for lower-graded employees and concluded that it did not appear to be due to a systemic disparity in treatment. For the SES employees, we reviewed 9 cases in which the OPR concluded its investigation in FY 2001 and FY 2002.41 We concluded that the facts established in the investigations fully supported the determinations in these cases, and that the SES employees were disciplined appropriately. We also examined the penalties imposed on higher-graded employees in our sample of 70 discipline cases. The one SES employee included in our sample received a 33-day suspension for Unauthorized Use of an OGV and Misuse of Office. Of the remaining DEA management personnel, 50 percent of the GS-15 employees and more than a quarter of the GS-14 employees received penalties (Table 8).
Table 8: Discipline Imposed in Sample Review, By Grade Level
|Grade Level||Number of Subjects in Sample||Number of Subjects Who Received Discipline||Percentage of Subjects Who Received Discipline|
|GS-8 and below||5||3||60|
|Source: OIG Sample Review of OPR Cases
Note: Unknown subjects include those cases where a subject could not be identified or cases involving non-DEA employees, such as contractors or other law enforcement officers assigned to a task force.
In our sample review of 70 OPR cases, employees at all grade levels received discipline, including 3 employees at GS-8 or below. We concluded that the penalties imposed in these sample cases were appropriate. Because we found that the discipline imposed on SES employees and on lower-graded employees was appropriate in all the cases that we reviewed, we concluded that the variance in the discipline imposed was not based on a systemic disparity.
In discussions, DEA officials offered one explanation for the removal rates of lower-graded employees. They explained that it may be because lower-graded employees are more likely to be in a probationary status. During probation, new employees can be removed expeditiously should they exhibit behavior, such as committing misconduct, which demonstrates unsuitability for permanent career status. Employees in a probationary status have no right to appeal to the MSPB. This could be a contributing factor to the variance we observed.
We also noted that some of the higher-graded employees in our sample resigned or retired during the disciplinary process. Of the 105 subjects in our sample, four cases were administratively closed because the employee resigned, and five cases were administratively closed because the employee retired. Of the retirees, two were GS-13s, two were GS-14s, and one was a GS-15. We were unable to determine whether these employees retired to avoid disciplinary action - one retired during the investigation, two retired before the Board proposed disciplinary action, and two retired after the proposal letter was issued but before the penalty was imposed.42
As with our review of the data regarding special agents, because a detailed analysis that would compare penalties assigned in each case was not feasible, and because the data that was available was mixed, we cannot conclusively determine whether higher-graded employees are treated more leniently than lower-graded employees.
External Reviews Found No Disparity By Race, Ethnicity, and Gender. Our review examined disciplinary action taken by position and grade level for all DEA employees. Three external reviews examined the influence of other factors, such as race, ethnicity, and gender, on the treatment of the DEA special agent workforce. These reviews concluded that there was no disparate treatment by the DEA. For example:
DEA Management of the Disciplinary System
The DEA does not adequately monitor the overall disciplinary system to ensure that it functions properly. While the three-tiered system comprised of OPR, the Board, and the Deciding Officials provides for oversight over OPR and the Board, DEA management does not systemically review the Deciding Officials' actions to ensure that decisions are consistent and reasonable. The DEA also does not ensure that disciplinary actions are properly documented in employees' official personnel files.
The DEA's three-tiered disciplinary system provides some oversight of OPR and Board activities to ensure that they are independent. OPR conducts fact-based investigations that do not draw any conclusions. To ensure objectivity, senior OPR inspectors closely monitor the investigations; the final investigative product is reviewed and approved by both the senior inspector and one of OPR's Associate Deputy Chief Inspectors. The Board and the Deciding Officials also provide a quality check: if they believe that the OPR investigation is incomplete they can request further investigation.
There also is oversight over the Board. The Board does not make any final decisions, but only proposes disciplinary action. The Deciding Officials make the final penalty determinations and may or may not accept the Board's proposed charges and penalties.
However, there is no oversight over the Deciding Officials. If the Deciding Official assigned to a case does not agree with the Board's proposals, the Deciding Official can - without explanation - dismiss the charge or decrease the penalty. In addition, DEA management does not routinely review cases in which the Deciding Officials' final decisions varied significantly from the charges and penalties proposed by the Board to determine the factors responsible for the variance and make systemic corrections for future disciplinary decisions. This lack of management oversight allows potential abuses in the system in that a Deciding Official could inappropriately dismiss charges or mitigate penalties. For example, in the case cited on page 27 in which a DEA supervisor pointed a gun at a 17-year old boy, five of the Board members familiar with the case and the Board Chairman told us that they believed that the supervisor had acted inappropriately and should have been suspended for his misconduct. Based on their review of the case, none could identify a plausible reason why the Deciding Official did not sustain the charges.
Because the Board and the Deciding Officials rely on the same investigative reports in making penalty determinations, instances of significant variances in the interpretation of these reports by the Board, the Deciding Officials, or both should alert management that there is a systemic problem, or a problem with the Board or the Deciding Official relating to a particular case. And, although management should not interfere with an on-going investigation or attempt to influence a Deciding Official to change a particular decision, it is appropriate for management to require the Board and the Deciding Officials to justify their determinations.
Each Board member we interviewed stated that significant variances in Deciding Officials' decisions occur infrequently, approximately two or three cases a year. We were unable to specifically identify how often a Deciding Official's decision varied from the Board's proposed penalty because neither the Board nor the Deciding Officials track this information. In our sample review of 70 OPR cases, the Deciding Officials varied from the proposed penalty in six cases. In only one of the six cases did we conclude that the variance was significant. In that case, a proposed 14-day suspension was reduced to 1 day, but based on the information in the file we were unable to determine the Deciding Official's reason for mitigating the penalty.
Deciding Officials Allege Management Influence and Retaliation. While conducting our review, we received an allegation that DEA management had attempted to influence a Deciding Official.48 The DEA has strict policies against this, as stated in a May 28, 1996, memorandum from the Chief Inspector to all DEA employees:
To maintain the integrity of the disciplinary process, no person is authorized to contact the Deciding Officials or the Board of Professional Conduct during the pendency of a disciplinary or performance based action, other than the employee concerned and his/her designated representative.
During our review, the Deciding Officials told us that a DEA manager from the Office of Inspection approached them in July 2002 regarding a specific case in which the Deciding Official had not yet made a final decision. The manager expressed displeasure at the leniency of the penalty proposed by the Board and suggested that the penalty should be harsher. (We interviewed the manager who allegedly approached the Deciding Officials and he denied that the incident occurred.) In the final decision made in November 2002, the Deciding Official further mitigated the proposed penalty based on the application of the Douglas factors. The Deciding Official told us that in December 2002 DEA management informed him that he had been a Deciding Official too long (five years) and that he should start looking for another position within the DEA. He viewed this action as retaliatory.
Five months after the Deciding Official was told to look for another position, the Acting DEA Administrator retired. The week following his retirement, the Human Resources Director transferred the Deciding Official to another position, acting on the request of the former Acting DEA Administrator who had retired. The timing of the DEA management actions, at best, gives the appearance of reprisal against the Deciding Official, although the conflicting statements prevent us from conclusively determining whether the incident occurred.
Discipline Was Not Always Documented in Employees' Official Personnel Files. It is important that the official personnel files contain the appropriate documentation to ensure that the imposed disciplinary actions were taken and to serve as permanent records of employees' disciplinary histories. These files are used in a variety of personnel actions, such as promotions, security clearances, and transfers. According to the DEA personnel manual:
All reprimands and adverse actions must be reflected in the affected employee's official personnel folder. Official reprimands will be retained in the official personnel folder for a period not to exceed two years, at which time they will be removed and destroyed…[A reprimand] may be removed and destroyed sooner if a grievance over a reprimand is sustained, or if it is determined upon request from the employee after one year that the reprimand should be removed. In the latter case, a reprimand may be removed only by the official who issued the reprimand or someone organizationally superior to that official.
Documentation of adverse actions, other than a Letter of Reprimand (i.e., suspensions, grade reductions, and removals), becomes a permanent part of the employee's personnel file unless the penalties are overturned on appeal or grievance.
In our review of 70 OPR cases, we identified 23 employees who received formal disciplinary decisions that should have been documented in their official personnel files. Among those 23 employees, 12 received written reprimands, 7 received suspensions from 1 to 33 days, 1 received a grade reduction from GS-11 to GS-9, and 3 were removed. We reviewed the personnel files of the above individuals and specifically looked for either the letter of reprimand or, in the case of adverse actions, the SF-50 (Notification of Personnel Action). The result of our review is summarized in Table 9.
Table 9: Personnel File Documentation of Discipline Imposed
|Penalties||Support Found For:||Support Missing For:|
|12 Letters of Reprimand||6 Letters of Reprimand||6 Letters of Reprimand|
|7 Suspensions||5 Suspensions||2 Suspensions|
|1 Grade Reduction||1 Grade Reduction||None Missingd|
|3 Removals||3 Removals||None Missing|
|23 Actions||15 Actions||8 Actions|
|Source: OIG Review of Official Personnel Files|
Of the six missing Letters of Reprimand, three were issued more than a year before we conducted our review. Therefore, it was possible that they had been removed at the request of the employee. When asked why there was no documentation regarding the remaining three Letters of Reprimand and two suspensions, DEA officials were unable to provide an explanation. During our review, we also found that one of the files contained a Letter of Reprimand more than two years old that should have been removed.
The DEA Informs its Employees of the Requirement for Reporting Misconduct and Penalizes Those Who Fail to Report Misconduct. The DEA's standards of conduct require its employees to promptly report to their supervisor, or to OPR, any activity or situation the employee believes to be improper, illegal, or otherwise in violation of any of the DEA's standards of conduct. The DEA informs its employees of this requirement in several ways. OPR inspectors routinely make presentations at the DEA Training Academy in which they describe common misconduct and explain the consequences. In addition, the DEA requires all of its employees to certify annually that they have read and understand the standards of conduct. This precludes those employees who are charged with misconduct from claiming that they were unaware of the standards.
Our survey of 50 DEA employees indicated that the DEA's actions to educate its employees were successful. Each of the 50 employees we contacted were aware of the standards of conduct and of the DEA's requirement that they report misconduct. Even employees who stated that they sometimes did not report misconduct acknowledged that they were aware of the requirement and the potential consequences of failing to do so.
We also found that the DEA investigated and penalized employees who failed to report misconduct. If an OPR investigation determined that an employee (who was not the subject of the original allegation) knew about misconduct but failed to report it, OPR would charge that employee with Failure to Report OPR Matters. We found that of the total 1,392 charges in cases opened during FY 2001 and FY 2002, Failure to Report OPR Matters was the fourth most frequent charge, as shown in Table 10.49
Table 10: Top Five Offense Codes Charged by OPR
Cases Opened During FY 2001 and FY 2002
|Offense||Number of Offenses||Percent of Total Offenses|
|Failure to Follow Written Instructions||120||9|
|Conduct Unbecoming an Agent||77||6|
|Failure to Report OPR Matters||64||5|
|Loss or Theft of a Defendant's Property or Funds||58||4|
|All other charges||930||67|
|Source: DEA OPR
a Totals may not equal 100 percent due to rounding.
Our sample review of OPR cases included eight employees who were charged with Failure to Report OPR Matters. For example, while investigating a complaint that a SAC had misused his OGV by transporting his son in it, OPR learned that a DEA supervisor also was in the vehicle and did not report the misconduct. OPR then charged the supervisor with Failure to Report OPR Matters.
Although the DEA encourages employees to report all misconduct, 11 of the 50 DEA employees we surveyed stated that they did not believe that DEA employees reported all misconduct. Three stated that they had personally observed misconduct and not reported it. These individuals made a distinction between "minor" misconduct (such as using an OGV to run errands) which they would not report, and "major" misconduct (such as criminal activity) which they would report. In addition, they believed that employees who report misconduct become known and are mistrusted and ostracized. The survey respondents also stated that misconduct is not reported because the interpretation of misconduct varies, and that everyone commits minor misconduct at some point in their career.
Our survey also found that when employees did report misconduct, the DEA acted on the report. Seven of the surveyed employees stated that they had reported misconduct. Six of the seven stated that the DEA investigated their allegations. The remaining employee stated that her second-line supervisor did not agree that misconduct had occurred, and did not forward the allegation to OPR, an outcome that was acceptable to the employee. In addition, 48 of the surveyed employees believed that their managers properly reported misconduct to OPR.
The DEA is reporting allegations of misconduct to the OIG, as required. On July 11, 2001, the Attorney General expanded the jurisdiction of the OIG and permitted it to investigate allegations of misconduct against DEA employees. Therefore, the OIG has the option to investigate any allegation and an OIG investigator reviews all new allegations to make this decision. In addition, OPR has developed a standard form that indicates the date that the OIG reviewed the allegation, whether the OIG accepted or declined the case, and the name of the OIG investigator who made the determination. This form is incorporated into every OPR investigative case file. We determined that 9 of the 70 OPR cases in our sample occurred after July 11, 2001, and that the DEA reported these allegations to the OIG as required.
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 timeframes 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.