Review of the United States Marshals Service Discipline Process
Report No. I-2001-011
September 28, 2001
Roles and Responsibilities
Department of Justice Office of the Inspector General
In 1989, the Office of the Inspector General (OIG) was created in the Department of Justice pursuant to the Inspector General Act Amendments of 1988. According to the Act and its legislative history, jurisdiction over the investigation of misconduct allegations against Department employees was divided between the Department's Office of Professional Responsibility (OPR) and the OIG. OPR was responsible for the investigation of misconduct allegations involving Department attorneys, criminal investigators, and other law enforcement personnel. Responsibility for the investigation of other matters was assigned to the OIG.
In Attorney General Order No. 1638-92, dated December 11, 1992, the Attorney General clarified the jurisdictional division between OPR and the OIG. Under the 1992 Attorney General Order, the jurisdiction of the OPR was revised to extend to the investigation of misconduct allegations against Department employees which implicated the Department's core functions, defined as the "prosecutive, investigative, or litigative functions of the Department." The responsibility of investigating matters not involving the core functions was assigned to the OIG.
The OIG's responsibility was changed by Attorney General Order 1931-94, dated November 8, 1994. 23 Under this Order, the OIG was given the responsibility of reviewing and investigating any misconduct allegations committed by Department employees, contractors, grantees, or other individuals conducting business with or receiving benefits from the Department. This Order exempted from OIG review DOJ employees who worked for the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA)--each of these components has its own internal OPR.
An Attorney General Order, dated July 11, 2001, assigned primary jurisdiction over allegations of misconduct against employees of the DEA and the FBI to the OIG.
United States Marshals Service
The United States Marshals Service (USMS) is the nation's oldest federal law enforcement agency. Since 1789, federal Marshals have served the United States through a variety of law enforcement activities. The mission of the USMS is to protect the federal courts and to ensure the effective operation of the judicial system. Other areas of responsibility include fugitive investigations, witness security, prisoner transportation, and asset seizure. The Director, Deputy Director, and 94 U.S. Marshals appointed by the President direct the activities of 94 district offices. Approximately 4,210 personnel serve in the USMS--2,863 employees serve in operations positions and another 1,347 serve in administrative positions.
USMS Office of Internal Affairs
In the USMS, all misconduct allegations are required to be forwarded to the Office of Internal Affairs (OIA) and then forwarded to the OIG. After the OIG reviews the USMS misconduct allegations, OIA conducts the majority of investigations. The exceptions are allegations the OIG determines it should investigate, allegations the OIA refers to other law enforcement entities, or allegations the OIA refers back to the employee's office of employment for investigation.
An investigation establishes supporting evidence for whether or not an allegation is substantiated. If an allegation is not substantiated, the case is closed and a copy of the case file is maintained by the OIA. If an allegation is substantiated, a copy of the case file is forwarded to the ERT in the HRD for review to begin the adjudication phase of the discipline process.
At the time of our review, the OIA had a staff of 10 personnel consisting of one Chief, six investigators, and three support staff.
USMS Employee Relations Team
The Employee Relations Team (ERT), under the supervision of the Assistant Director for the HRD, assists USMS employees in the following areas: discipline and performance actions, performance management, leave administration, and awards. At the time of our review, the ERT was authorized four staff positions but only had on-board one team leader and two employee relation specialists. The individual in the role of team leader was serving in an acting capacity. At the conclusion of our review, the position was officially filled.
The ERT is responsible for the adjudication of misconduct cases. Upon receipt of an investigative case file from the OIA, the ERT team leader reviews the case and assigns it to an ERT staff member, who is responsible for monitoring the progress of the case. The ERT team leader also determines whether a case should be referred back to the district or division or forwarded to the Discipline Panel for review. The ERT also ensures any proposed discipline action is in accordance with USMS Discipline Delegation Policy.
The ERT is responsible for maintaining the official misconduct case files; monitoring the adjudication progress of each case; providing assistance in the form of advice, information, or expertise to employees, district, division, and Discipline Panel personnel; and reviewing and approving all proposal and decision letters for consistency and compliance. Also, according to USMS policy, the ERT can continue to adjudicate a case by revising the original allegation if the facts support this action or issue a letter of clearance or of closure in a case if the facts support this action.
Proposing and Deciding Officials
Once the ERT reviews and decides to adjudicate a case, it is forwarded to the proposing official at the appropriate level (district, division, or Discipline Panel) for review. Based on the information in the investigative case file, any prior misconduct information on the employee provided by the ERT, and any first-hand knowledge of the case or employee (usually at the district level), a proposed discipline action by the official(s) is recommended. This action is presented in the form of a proposal letter, prepared by ERT staff, to the employee for signature. The letter also informs the employee of available options and specific time periods that must be met.
Officials determine the level of discipline actions by reference to guidelines established in the USMS Table of Offenses. If the proposed discipline calls for a suspension of over 14 days, a copy of the proposal letter and the investigative case file are also provided to the Office of General Counsel (OGC) for review. If the proposed discipline action calls for removal of the employee, then a copy of the proposal letter and the case file are provided to the WRG in the Department's JMD for review.
The deciding official reviews the case file and the proposal letter and considers any written or verbal response submitted by the employee to the proposed action before rendering a final decision. This decision is prepared and finalized in written format by ERT before being presented to the employee.
USMS Office of General Counsel
The OGC's involvement in the discipline process occurs when a proposed discipline action against an employee calls for a suspension of more than 14 days. This level of proposed discipline action can be appealed to the MSPB. Because the OGC represents the USMS in these cases before the MSPB, the OGC is provided with a copy of the proposal letter and investigative case file for review. The OGC reviews the thoroughness of the investigation, the proposal notices, and the reasonableness of the proposed penalties and provides an opinion that the identified offenses are sustainable and that the proposed discipline action is reasonable and warranted based on the evidence. In addition, the OGC ensures that the relevant Douglas factors are given consideration in the penalty determination. If a case is appealed to the MSPB, control of the case is relinquished to the OGC by the ERT. The OGC also becomes involved in the discipline process when employees choose to resolve their cases using the ADR Program. The OGC generally acts in a consultant role to USMS management concerning this program.
USMS Alternative Dispute Resolution Program
The ADR Program began in the USMS as a pilot project in 1996 and was implemented as a fully operational program in October 1998. Oversight of the program is the responsibility of the ADR Ombuds. The ADR Ombuds can decline or discontinue any request or case if it is deemed to be in the best interest of the USMS. The USMS ADR Handbook, dated June 1999, describes the program as being non-traditional, non-adversarial, and informal in nature. By using a trained facilitator as a neutral third party, the program is designed to resolve workplace conflicts, including misconduct cases, between two or more parties to achieve an agreement that benefits all parties. According to USMS standards, 60 calendar days are allowed for the ADR Program to reach a conclusion. An additional 30 days is allowable if both parties consent. Management as well as employees can request ADR and can have counsel present.
USMS Equal Employment Opportunity Office
USMS employees may file EEO complaints. Some of the factors that would qualify as the basis for an EEO complaint involve race, sex, age, or religious discrimination. A complaint has to be registered with an EEO Counselor within 45 days of the date of occurrence. If a complaint cannot be remedied during the informal phase of the EEO process and the evidence warrants, the USMS EEO Office will conduct a formal investigation (to be completed within180 days). If an EEO complaint is related to or a result of a misconduct allegation, this can affect the overall processing of the misconduct case. During the informal phase of the EEO process, the employee is also informed of the ADR Program as an option.
Merit Systems Protection Board
Established by the Civil Service Reform Act of 1978, the MSPB is an independent agency in the executive branch of the federal government. 24 The MSPB is charged with oversight of the federal government's merit-based system of employment. In most cases, this is accomplished by hearing and deciding appeals from federal employees being considered as recipients of major personnel actions, such as removal from service. Other, less serious, actions may be appealed as well. The MSPB also hears and decides other types of civil service cases, reviews regulations of the Office of Personnel Management, and conducts studies of the merit system.