Review of the United States Marshals Service Discipline Process
Report No. I-2001-011
September 28, 2001

USMS's Response to the Draft Report

Introduction

The Department of Justice Office of Inspector General (DOJ-OIG) Evaluation and Inspections Division conducted an evaluation of the discipline process in the United States Marshals Service to determine whether discipline actions taken in response to substantiated misconduct allegations were consistent, timely and in accordance with USMS policy.

We appreciate the opportunity to comment on the major findings of the report, and agree with all of the report findings except Recommendation One. Under Recommendation One, while we agree in principal that such detailed explanations and documentation could be helpful from the perspective of the DOJ-OIG evaluation, we feel that when considering the overall process, from investigation to completion of a third-party review, this recommendation is not practical.

We trust that the DOJ-OIG will take the opportunity to reconsider their position on this recommendation based on our response, which we feel is consistent with Federal sector disciplinary requirements and accepted practices among the Federal employee relations community.

The following responses address each of the DOJ-OIG recommendations:

Recommendation 1: The USMS Director should instruct the HRD to improve adherence to the Federal standards for documenting misconduct case actions and consider implementing additional case documentation standards as needed.

Response: Recommendation Not Accepted: The Employee Relations Team (ERT) will continue to adhere to Federal standards. We agree that Federal standards require documenting misconduct cases. However, we do not agree that Code of Federal Regulations (CFR) documentation standards require the detailed explanations outlined in the evaluation report. We believe that when considering the overall process, from investigation to completion of any potential third-party review, this recommendation is not practical. The basis for this conclusion is outlined below.

• In several of these cases that were reviewed during the DOJ-OIG evaluation that resulted in disciplinary actions of 14 days or less, we acknowledge that some of the supporting documentation was not present in the case files. These cases were adjudicated at the local level, and while local managers were directed to provide copies of oral and written replies, in some cases they apparently did not. ERT will remind local managers of their obligation to provide this documentation and will further instruct Employee Relations Specialists to ensure that this documentation is maintained in the disciplinary case file.

• The Federal standards cited in the OIG report, 5 CFR Section 752.406, specifically apply to formal disciplinary actions effecting a penalty range greater than a 14-day suspension. In addition, these standards do not apply to cases that are resolved by use of settlement agreements, where employees waive their rights to the normal disciplinary process. In a review of these cases effecting a penalty greater that a 14-day suspension, all applicable cases complied with the requirements set forth in 5 CFR Section 752.406, in as much as copies of written replies and summaries of oral replies were present in these files. In other cases where no oral and/or written reply was made, this fact was documented in the decision letter.

• When considering the entire disciplinary process, including the fact that discipline is subject to further review by appellate bodies, it is an accepted Federal personnel management practice not to "litigate" a disciplinary action in the decision letter.

• The DOJ-OIG based their findings on a review of 50 selected misconduct cases. Since these cases were not selected at random but were chosen based on specific criteria, the report should make it clear that the statistics arrived at cannot be applied to the entire universe of cases.

• The DOJ-OIG review appears to conclude that a disparity between proposal and decision warrants a concern, and that such a disparity demonstrates a weakness in the system. However, we believe that we are compelled to give appropriate weight and consideration to the due process rights of employees and the Douglas factors. While the focus of the DOJ-OIG review was the discipline process only, the application of this process must take into consideration the overall picture, which could include such issues as the quality of the evidence in the discipline file and the strategies that may evolve during third party litigation. The strength of this position is evidenced by our success in third-party proceedings.

• Regarding consistency of penalty, in the USMS there are in excess of 200 possible proposing and deciding officials who could be involved in the disciplinary process at any given time. In making consistency determinations, the third-party review standard requires that deciding officials be consistent with their own decisions. Therefore, no conclusions should be drawn from an across-the-board comparison of discipline penalties.

Recommendation 2: The USMS Director should instruct the HRD to ensure that all formal discipline actions are enforced and properly documented in the official personnel folders.

Response: Recommendation Accepted. We concur with this recommendation. On March 1, 2001, the Employee Relations Team implemented new procedures to ensure that all disciplinary actions were properly documented and enforced. At that time, the following procedures were established for all discipline actions greater than a letter of reprimand:

• When the decision letter is signed, a Request for Personnel Action (SF-52) identifying the suspension dates will be prepared by the ER Specialist managing the case.

• A copy of the signed SF-52 (s) will go to Staffing.

• A copy of the signed SF-52 (s) will go to the Specialist for inclusion in the discipline file.

• A copy of the signed SF-52 (s) will be maintained in a binder.

• Approximately one pay period after the effective date of the suspension, ERT will check the payroll system to determine if the suspension was recorded.

• If the suspension was not recorded in the payroll system, the Specialist managing the case will be notified.

• The Specialist will determine if a Notification of Personnel Action (SF-50) was prepared and follow up (with district/headquarters office) to determine if the suspension was served.

• If the suspension was not served, the Specialist will obtain from management new dates when the suspension will be served.

• A new SF-52 correcting the dates of the suspension will be prepared and the above steps will again be followed.

• If there are unusual issues involving the suspension, the Specialist will notify the Team Leader for appropriate action.

Recommendation 3: The USMS Director should instruct the HRD to establish time lines for the adjudication of misconduct cases and to use the time lines to monitor the status of the cases through the process.

Response: Recommendation Accepted: ERT has time lines for issuance of the proposals: 90 days for Discipline Panel disciplinary actions and 30 days for disciplinary actions delegated to District/Division Managers. Employees have 10 days to submit their replies. In cases where employees request additional time to make their replies, the deciding official may extend this time line as he determines is necessary to afford the employee sufficient time to reply.

Timeliness has always been and will continue to be a concern in the disciplinary process.

Additional internal goals will be informally established and revised as needed to ensure the timely adjudication of disciplinary cases, keeping in mind that the cases that normally take the longest time to adjudicate are usually the most complex and usually involve the most severe discipline, up to and including removal. These internal standards and goals will be used as a management tool to assist in the process, but in all fairness to the employee, we do not want these standards to drive the process. We do not feel that it is necessary or appropriate to establish formal time lines.

According to DOJ 1200.1, Part 3, Labor/Employee Relations, Timing of Discipline: "There is no limitation with respect to when discipline must be affected after the commission of misconduct. However, managers are encouraged to act in a timely manner." This guidance seems to support our position that timeliness is important, but not necessarily the key element in taking a disciplinary action. There is nothing in this order that makes time lines a requirement in the disciplinary process.

We will constantly strive to improve in these areas, and make every effort to document any significant delays in the process in the disciplinary case file.

In addition, on March 7, 2001, all ER Specialists were reminded to ensure that all correspondence that relates to the case file should be maintained in the case file, including, but not limited to, requests for extension, requests for information, etc. Each Specialist was also reminded to include any and all communications/documentation that would identify or explain any significant time delays.

Recommendation 4: The USMS Director should instruct the HRD to meet established ADR time lines and return cases that do not meet these time lines to the appropriate office to continue with formal processing.

Response: Recommendation Accepted. The ADR policy is being revised to automatically return the disciplinary action to the formal processing once the established time lines have expired. ADR may continue at the option of the parties, but, formal adjudications of discipline will occur.

Recommendation 5: The USMS Director should instruct the HRD to develop and implement a strategy for increasing the use of trained USMS ADR facilitators.

Response: Recommendation not accepted: Due to a revision in the ADR policy (recommendation # 6) there will be no need for more trained USMS mediators to handle these cases. Sufficient numbers of mediators are available for lesser discipline matters that are not as complex.

Recommendation 6: The USMS Director should ensure the HRD is accepting only eligible cases for ADR and at the appropriate stage.

Response: Recommendation accepted: The ADR policy is being revised such as to not provide an ADR option for pre-decisional appeal of major disciplinary actions, i.e., those greater than 14 days and appealable to the MSPB.

Recommendation 7: The USMS Director should instruct the HRD to ensure that consistent, accurate, and complete data is entered in a timely manner in the ADR database to allow for more effective monitoring, oversight, and reporting.

Response: Recommendation Accepted: Currently the ADR process has in place an excellent data and record keeping system. Due to personnel shortages, the data entry requirements were not being met. With the addition of another staff member to the ADR program, these requirements will be met on a continuing basis.

Recommendation 8: The USMS Director should instruct the HRD to develop and implement data collection, entry, and review standards for ERT's automated database.

Response: Recommendation Accepted: The Employee Relations Team will establish standards for data collection, entry, and review for ERT's automated database. Standards will be established NLT November 30, 2001.

Recommendation 9: The USMS Director should direct the HRD to reactivate these meetings with representatives for the appropriate entities involved in the discipline process to identify and solve disciplinary process issues. These meetings should occur periodically and a written record of activities and decisions should be maintained.

Response: Recommendation Accepted: On a monthly basis, representatives from IA, ADR, OGC and EEO will meet with the Employee Relations Team to identify, discuss and resolve disciplinary process issues. A written record of these activities and decisions will be maintained by the ER Team. The next meeting is scheduled to take place on October 3, 2001.

Recommendation 10: The USMS Director should instruct the HRD to develop performance standards for the adjudication of misconduct cases and monitor cases against those standards.

Response: Recommendation Accepted: Performance standards have traditionally been in place for the ER Team in that the ER Specialist was expected to have the proposed disciplinary action memorandum mailed to the district within 30 days of receipt of the investigative file. In addition, the traditional standard for cases being sent to the Discipline Panel was to have the proposed disciplinary action mailed to the Discipline Panel within 90 days of receipt of the investigative file. Prior to the implementation of a standardized Performance Plan for all USMS employees in January 1997, each ER Specialist had a Performance Plan that included these specific standards.

In December 1999, this standard was again cited in the Mission and Activity Statement for the Employee Relations Team as follows:

1. Prepare proposals for all disciplinary actions for issuance by the USMS Discipline Panel within 90 days.

2. Prepare proposals for all disciplinary actions for issuance by District/Division Managers within 30 days.

A copy of this statement has been provided to the OIG.

Recommendation 11: The USMS Director should instruct all USMS districts, divisions, and headquarters organizations to report all misconduct allegations to the OIA.

Response: Recommendation Accepted: All USMS districts, divisions, and headquarters organizations will be reminded of their responsibility to report all misconduct allegations to the OIA.

Recommendation 12: The USMS Director should instruct the OIA to report all misconduct allegations to the OIG in accordance with OIG policy.

Response: Recommendation Accepted: OIA has always reported classification one and two allegations to the OIG as required by OIG guidelines. Some class three allegations were not reported to the OIG. These unreported allegations were found either to be unsubstantiated after the preliminary investigation or to involve misconduct by contractors. Pursuant to the OIG findings, OIA will forward all allegations to the OIG as required by the reporting guidelines. Currently, OIA is working with the OIG to electronically report class three allegations on a monthly basis. The changes in reporting to the OIG have been implemented and the OIA is in full compliance with the guidelines.