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

OIG Response

U.S. Department of Justice Office of the Inspector General

December 19, 2001

MEMORANDUM FOR	BENIGNO G. RENYA DIRECTOR UNITED STATES MARSHALS SERVICE
FROM:	PAUL A. PRICE ACTING ASSISTANT INSPECTOR GENERAL     FOR EVALUATION AND INSPECTIONS
SUBJECT:	Office of the Inspector General Analysis of the United States Marshals Service Response to Report, I-2001-011

On September 28, 2001, the Office of the Inspector General (OIG) issued the final report to the Acting Director, United States Marshals Service (USMS), entitled "Review of United States Marshals Service Discipline Process." The report contained 12 recommendations that required action by the USMS. The USMS response, dated October 5, 2001, addressed each of the recommendations and is included as Appendix 4 in the report. Our analysis of the USMS response follows and is included as Appendix 5 in the report.

Recommendation Number 1 - Resolved - Open. Although the USMS response did not agree with several aspects of our finding, including our conclusion that most of the case files did not meet the Code of Federal Regulations (CFR) case documentation standards, the USMS agreed to adhere to the federal standards for documenting misconduct cases. The USMS responded that many of the case files the Office of the Inspector General (OIG) reviewed contained the required documentation. In addition, the USMS response stated that the information contained in the decision letters in the case files the OIG reviewed was adequate because the CFR does not require decision letters to include a "detailed explanation" to meet CFR standards.

However, our report states that the CFR requires that the reasons for the discipline actions, not a detailed explanation, be documented. We found that the decision letters did not consistently provide adequate reasoning to understand why the deciding official mitigated proposed discipline action. The USMS response also concluded that our recommendation to improve adherence to CFR standards was impractical, when the overall disciplinary process is considered, but it failed to explain why improved adherence to CFR standards was impractical.

The USMS response to Recommendation Number 1 also includes comments on several specific aspects of the report. Our response to each of the comments follows.

• In its response, the USMS acknowledged that several of the case files we reviewed involving discipline action of less than 14 days may not have contained all of the required supporting documents because the cases were adjudicated at the local level (District and Division). For those cases adjudicated at the District and Division level, the USMS stated that it will instruct the Employee Relations Team (ERT) to remind local managers of the obligation to provide this documentation and will further instruct the ERT to ensure that this documentation is maintained in the discipline case file.

  We agree that this corrective action for cases adjudicated at the District and Division level is important, but it will not fully address the documentation deficiencies we found in the other case files adjudicated by the Discipline Panel. Not all cases resulting in discipline action of 14 days or less are reviewed and adjudicated at the District and Division level. Of the 50 cases in our review, 22 cases were initially determined to be serious enough to warrant being sent to the Discipline Panel by the ERT for review and adjudication. After review and adjudication by the Discipline Panel, only 11 of these cases resulted in a discipline action of more than 14 days. The other 11 cases resulted in a discipline action of 14 days or less. Yet, most of these 22 case files did not contain all the required documentation as defined in the CFR. Therefore, we recommend that the USMS should instruct the ERT to ensure that all cases processed at all adjudication levels contain the required documentation.

• The USMS response notes that 5 CFR Section 752.406 provides the federal standard for documenting misconduct cases involving more than 14 days discipline. As provided in our report, this section states "the agency shall maintain copies of the items specified in Title 5 United States Code (U.S.C.), section 7513(e) and shall furnish them upon request as required by that subsection." Title 5 describes these items as "Copies of the notice of proposed action, the answer of the employee when written, and a summary thereof when made orally, the notice of decision and reasons therefore, and any order effecting an action covered by this subchapter, together with any supporting material..." Although not specifically mentioned in the report, Title 5, section 7503(c) requires the same case documentation standards for discipline actions involving 14 days or less.

  The USMS also comments that not all cases in our review required all of the documents described in the CFR standards. We agree that each case file we reviewed did not always require a proposal letter, an employee response, and a decision letter, because the case may not have gone through the entire formal discipline process. This was the case in 20 of the 50 case files we reviewed. Six cases were closed through the use of a settlement agreement, 3 cases were closed due to the employee deciding to retire before the process was completed, and 11 cases were closed with a letter of closure issued by either the ERT or the Discipline Panel. During our review, we considered the extent the formal discipline process had been completed and the effect this had on the CFR documentation requirements for each case.

In addition, the USMS stated that all the case files in our review that involved an imposed discipline action of more than 14 days (total of 11) complied with the CFR documentation requirements. While we found decision letters in case files that indicated an employee had responded, a copy of the written response or a summary of the oral response was not included in the case file as required by the CFR, with the exception of 2 cases adjudicated at the District level. Thus, in most of the 30 cases that went through the entire discipline process, the USMS was not consistently meeting the entire CFR documentation standard for its case files with respect to employee responses.

• The USMS asserts that it is an accepted federal practice not to "litigate" a discipline action in the decision letter, but the USMS response does not explain what this means. Our report does not propose that the USMS prepare decision letters that itemize or discuss the merits of all evidence provided during the disciplinary process. The report cites the need for the USMS to improve adherence to the CFR standard that requires the reasons for the imposed discipline actions to be included in the notice of decision. In the cases that went through the entire formal discipline process where a deciding official mitigated the proposed discipline action, we found varying levels of information describing the reasons for mitigation. Our report provided specific examples of case files that did not contain sufficient information to determine the reasons for the imposed discipline actions. For example, the report describes certain cases that had multiple charges supported in the proposal letter, We found that the deciding official in these cases did not indicate that consideration was given to each of these charges when determining discipline action. In other cases, the discipline action imposed fell below the range of penalties suggested in the USMS Table of Offenses or the discipline action imposed appeared to be inconsistent to other similar discipline actions or lenient and the deciding official did not include the reasons for the imposed discipline.

  The USMS also did not agree with our finding that the reasons for the imposed discipline actions were not adequately documented in the decision letters. As an argument for the adequacy of the documentation, the USMS referred to its success with third party reviews -- an explanation we believe is not directed to the issue discussed in our report. Third party reviews, such as a review by the Merit System Protection Board, involve more than the case file contents to determine the merits of a case. As the case examples in the report show, we were not always able to understand the reasons used in imposing certain penalty decisions from the decision letter. A case file should allow for a reviewer to follow the entire progression of the discipline process and, if necessary, draw reasonable and accurate conclusions on the fairness or the consistency of a discipline action imposed. A case file should contain the necessary documentation so that the logical progression, direction, and reasoning used in the case, from the investigative stage to the decision letter, are clear and defensible.

• The USMS indicates in its response that it is important for the report to clarify that the statistics in the report are not based on a random sample and therefore cannot be applied to the entire universe of cases within the USMS. Early in the report, we provided the specific criteria for selecting the 50 case files for our review, and it is clear from the description in the report that the sample was not a random sample. However, based on the high incidence of cases with insufficient documentation in our selected sample, it is reasonable to assume that similar deficiencies exist in other cases.

• The USMS response comments that our report appears to conclude that a disparity between the proposed penalty and the final decision warrants concern and that such a disparity demonstrates a weakness in the system. Our report fully acknowledges the complexity of misconduct cases and the challenges associated with adjudicating them. However, based on our case file review, our report does raise important concerns over the inconsistent penalties and the disparity in the penalty decisions. The report shows that 19 cases were mitigated below the proposed penalty and in 13 cases the final penalty fell below the suggested range of penalties. The report also includes specific cases where similar offenses adjudicated during the same time frame received differing levels of proposed and imposed discipline, cases where prior offenses were not considered during the final penalty decision, or cases that failed to show that all offenses had been considered and addressed by the deciding official. Thus, the imposed discipline appeared inconsistent with similar cases or too lenient. The report's conclusions, however, are derived from our review of the case files, which did not always have the required or adequate level of documentation to support or explain the reasons for the imposed discipline actions.

The response also again comments on "the strength" of the USMS position as evidenced by the USMS's success in third-party proceedings. That success rate does not answer the question of whether USMS penalty decisions are inconsistent. Moreover, success rates in third party proceedings may be based on numerous factors, one of which could be undue leniency in the USMS's proposed discipline actions.

• The USMS asserts that our report should not draw conclusions regarding the consistency of penalties from a comparison of cases. The USMS states that there could be over 200 possible proposing and deciding officials, who could be involved in the disciplinary process at any given time, and based on the third party review standard it is only critical that the deciding officials are consistent within their own decisions. Contrary to the USMS's view that consistent penalty decisions are not critical or possible, the OIG believes that the discipline process should result in supportable and consistent disciplinary decisions, regardless of the number of possible proposing and deciding officials, and the disciplinary decisions should be made after the deciding officials consider all relevant factors in a case. Our review of the case files did not indicate that all relevant factors were considered because the documentation was not complete and the decision letters did not adequately explain the reasoning used to determine the imposed discipline actions.

  Consistency in penalty decisions supported by sound and documented reasoning is the hallmark of an effective, fair and objective disciplinary process. As we state in the report, the USMS has taken steps in the past to improve the disciplinary process and has established a Discipline Panel to provide consistent review and adjudication of misconduct cases, which may result in discipline action of over 14 days.

  The ERT is the caretaker of the USMS disciplinary process, and has the overall responsibility for ensuring the discipline process serves both the employee and the agency. According to USMS procedures, 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. The USMS response indicated that over 200 individuals potentially play a role in the disciplinary process at any given time. Because of the large number of individuals involved in the process, it is crucial that the ERT provide sufficient guidance to ensure the standards for documenting misconduct are consistently met and followed.

To close this recommendation the USMS should issue a memorandum that clarifies the importance and necessity of meeting CFR documentation standards for misconduct case files to its staff and officials involved in the disciplinary process. This memorandum should also identify the documents the USMS requires in its misconduct case files and highlight the CFR documentation requirements. Specifically, the memorandum should identify the employee response (when provided) as a required part of the case file. The memorandum should also address the need for a more detailed review by the ERT staff of each decision letter, especially when it contains mitigating factors. This memorandum should be distributed to all entities involved in the discipline process for reference purposes. We will consider this recommendation resolved but will keep it open until we receive a copy of this memorandum.

Recommendation Number 2 - Resolved - Open. The USMS accepted our recommendation to ensure that all formal discipline actions are enforced and properly documented in official personnel folders. We consider the recommendation resolved but will keep it open until a copy of the procedures that had been implemented on March 1, 2001 is received.

Recommendation Number 3 - Resolved - Open. The USMS accepted our recommendation to establish time lines for the adjudication of misconduct cases and to monitor the status of the cases through the process. While the ERT has partial timelines in place, as stated in the response, these time lines were not used to measure timeliness of adjudication. Formal time lines should be established for each segment of the adjudication process, from the time the ERT accepts a case file from the OIA to when the decision letter is signed. The OIG realizes that each misconduct case is unique and involves certain complexities. These timelines would not be designed to "drive the process," but rather serve as a gauge to measure where each case should be at a given point in the process and an indicator when the process is not performing as efficiently as is should. These timelines would be flexible and subject to modification as analysis was performed on the accuracy of the initial attempt to establish these timelines. We consider the recommendation resolved but will keep it open until a set of formal timelines is provided.

Recommendation Number 4 - Resolved - Open. The USMS accepted our recommendation to meet established Alternative Dispute Resolution (ADR) timelines and return cases that do not meet these timelines to the appropriate office to continue with formal processing. We consider the recommendation resolved but will keep it open until a copy of the revised ADR policy is provided.

Recommendation Number 5 - Resolved - Closed. The USMS accepted our recommendation to develop and implement a strategy for increasing the use of trained USMS ADR facilitators. Due to a change in ADR policy, which will reduce the number of ADR cases and will remove the need for increasing the use of trained facilitators, we consider the recommendation resolved - closed.

Recommendation Number 6 - Resolved - Open. The USMS accepted our recommendation to accept only eligible cases for ADR and at the appropriate stage. We consider the recommendation resolved but will keep it open until a copy of the revised ADR policy detailing the change is provided.

Recommendation Number 7 - Resolved - Closed. The USMS accepted our recommendation 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. Based on the USMS response that additional staffing will prevent data integrity from being a concern in the future we consider the recommendation resolved - closed.

Recommendation Number 8 - Resolved - Open. The USMS accepted our recommendation to develop and implement data collection, entry, and review standards for the ERT's automated database. We consider the recommendation resolved but will keep it open until a copy of the data entry standards, scheduled to be completed by November 30, 2001, are provided.

Recommendation Number 9 - Resolved - Closed. The USMS accepted our recommendation to reactivate meetings with representatives for the appropriate entities involved in the discipline process to identify and solve disciplinary process issues. Based on the USMS response we consider this recommendation resolved - closed.

Recommendation Number 10 - Resolved - Closed. The USMS accepted our recommendation to develop performance standards for the adjudication of misconduct cases and monitor cases against those standards. The USMS response only refers to performance standards that address timelines for part of the adjudication segment of the discipline process. These timelines are a first step towards measuring an important aspect of the discipline process, but the timelines should be expanded to include all activities involved in case adjudication. The USMS should also consider the establishment and implementation of performance standards for other important aspects of the discipline process, such as consistency or customer satisfaction. The USMS will not be able to measure the success or improve the discipline program without having complete timelines and other performance standards in place. Based on the response and discussions with USMS officials, we consider this recommendation resolved - closed.

Recommendation Number 11 - Resolved - Open. The USMS accepted our recommendation to report all misconduct allegations to the Office of Internal Affairs (OIA). We consider the recommendation resolved but will keep it open until a copy of the memorandum distributed to internal USMS entities is provided.

Recommendation Number 12 - Resolved - Closed. The USMS accepted our recommendation for the OIA to report all misconduct allegations to the OIG in accordance with OIG policy. Based on the response provided by the USMS we consider this recommendation resolved - closed.

Please provide the information required to close the open recommendations within 45 days of this memorandum. If you cannot provide the information or cannot complete the corrective action, please advise us of the expected completion date. If you have any questions regarding your response, please contact Barbara Kee on 202-616-4615.

cc:	Isabel Howell Liaison U.S. Marshals Service Vickie Sloan Director Departmental Audit Liaison Office