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

RESULTS OF THE REVIEW

Our review of 50 USMS misconduct case files revealed 25 cases where the consistency of the discipline or the degree of discipline imposed raised serious concerns. Because the USMS did not always follow federal documentation standards for the misconduct case files, the reasoning used in making penalty decisions was not fully documented or explained. We also found misconduct cases with unexplainable time periods that prolonged the adjudication of cases, and the USMS does not have policy guidance that addresses timeframes for each stage of the adjudication phase of the discipline process.

In addition to our findings on the consistency and timeliness of case adjudication, we also identified the following issues that negatively affect the discipline process:

Over the past several years, the USMS has periodically reviewed its discipline process to identify areas that needed improvement. As a result of these reviews, the USMS implemented the following changes:

Although these changes represented efforts to enhance the integrity and efficiency of the USMS discipline process, our review shows additional oversight of the implementation of these program changes is needed.

Discipline Decisions are not Adequately Documented

Table 1, on the following page, demonstrates the varied range of penalty decisions for our sample of 50 misconduct cases. The table shows that in 36 of the 50 discipline cases (72 percent) either a formal or an informal penalty was imposed: 6

For the remaining 14 of the 50 cases:

Table 1: Penalty Range of USMS Discipline Actions

Offense Category Removal Demotion More Than
14 Days		 14 Days
or Less		 Letter of
Reprimand		 Letter of
Caution/Instruction		 Verbal
Reprimand		 Letter of Closure
- Not Substantiated		 Other Total
1. Unauthorized or Improper Use of a GOV 1a  4 2 1    1   9
2. Unauthorized Use of Govt. Travel Charge Card    1 32    6
3. Violations of Standards of Conduct   1 1    1 2  5
4. Disorderly Conduct    1 1 2   1   5
5. Discharge of a Weapon With No Apparent Threat     1 1   1 1 1b 5
6. Failure to Report       1  2   3
7. Failure to Honor Just Debts (Government Credit Card)     1 1    2
8. Improper Restraint of a Prisoner   1 1     2
9. Improper Seating of a Prisoner      2     2
10. Disrespectful Conduct       2     2
11. Failure to Follow USMS Policy     1    1
12. Misuse of Office    1       1
13. Conversion of Government Funds to Personal Use         1  1
14. Assault on a Prisoner         1  1
15. Falsification, Misstatement of Employment         1  1
16. Discrimination 1a         1
17. Disgraceful Conduct  1        1
18. Association with Individual Known to be Involved in Criminal Activity    1       1
19. Failure to Disclose all Assets on Annual Executive Financial Disclosure Form         1  1
Total 2 1 8 9 9 7 2 11 1 50

Source: USMS

a These employees elected to retire in lieu of proceeding with the proposed removal action. The USMS closed the disciplinarys cases following the retirement actions.

b Although the charge was substantiated, the employee elected to retire before the USMS proposed a discipline penalty action. The USMS Table of Offenses suggests a penalty range of Letter of Reprimand to Removal for this offense.

Note: Fifteen of the fifty misconduct cases comprised more than one offense category. In five instances, separate misconduct cases were combined and resulted in one adjudication action for the employee.

While most cases resulted in a formal or an informal penalty, we found that the USMS case file documentation did not always support final penalty decisions. According to 5 CFR, section 752.406, "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, shall be maintained by the agency…."

In our sample of 50 misconduct case files, we found cases that did not meet the minimum CFR documentation standards. The documentation in 25 cases was incomplete and did not explain the reasons used for penalty decisions in the following instances: 7

During our review of the 50 case files, we found the proposal letters were present and adequately documented the reasoning used in proposing any discipline action. However, we rarely found any documents detailing the employee's response in the case files. In the absence of complete documentation, the reasoning applied in making final case decisions was not always apparent. Therefore, the differing levels of discipline imposed for similar offenses appeared as inconsistent or too lenient.

The following synopses detail case actions and penalty decisions imposed by the USMS that involve the two most prevalent offense categories found in our sample--the Unauthorized Use of a Government Owned Vehicle (GOV) and the Misuse of a Government-Issued Travel Card. These case synopses demonstrate the complexity of misconduct cases and the challenges associated with case adjudication. Most notably, these cases raise serious consistency concerns as a result of inadequate documentation of the decision reasoning.

Misconduct Cases Involving Unauthorized Use or Misuse of a GOV

Government officials are allowed limited flexibility in proposing and deciding discipline action relating to the misuse of government-owned vehicles. Title 31 U.S.C., section 1349(b), provides in part that:

An officer or employee who willfully uses or authorizes the use of a passenger motor vehicle . . . owned or leased by the United States Government . . . shall be suspended without pay by the head of the agency. The officer or employee shall be suspended for at least one month, and when circumstances warrant, for a longer period or summarily removed from office.

The USMS Policy Directive 99-11, "Use of Official Government Vehicles," February 12, 1999, allows for a broader interpretation of the statutory penalty range by allowing penalties ranging from a Letter of Reprimand to a removal for offenses determined not to rise to the level of the statutory "willful" misuse standard.

As shown in Table 1 on page 7, our sample included a total of nine cases that involved the Unauthorized or Improper Use of Government-Owned Vehicles (GOV). In five of these cases (described below), the case files did not document the reasoning used to support the penalty decisions imposed. 8

  1. A charge of Unauthorized Use of a GOV was combined with a charge of Conduct Unbecoming (involving public intoxication). The Discipline Panel proposed a 45-day suspension. The deciding official, after review, mitigated the proposal to a 14-day suspension. The reasoning provided in the decision letter appeared to contradict facts of the misconduct as detailed in the proposal letter. For instance, the deciding official concluded that the employee had violated the USMS policy. However, this conclusion did not state the reason the violation did not meet the "willful" [Title 31 U.S.C., section 1349(b)] misuse of the GOV criteria as clearly described in the proposal letter. The deciding official also concluded that the employee was not intoxicated when operating the GOV, but the official did not provide reasoning for differing with the facts previously detailed in the proposal letter. For instance, the proposal letter identified statements of the local police department indicating that the employee was intoxicated, did operate the vehicle, had behaved in a disrespectful and unprofessional manner, and that an arrest was imminent for public intoxication. The local police department ultimately exercised its discretion by not arresting the employee following an apology and statements of remorse.

  2. A charge of Unauthorized Use of a GOV was combined with a charge of Use of Offensive Language. The Discipline Panel proposed a penalty of 31 days. The proposed penalty was mitigated to a 1-day suspension following a settlement agreement reached between the employee and the USMS. The settlement agreement only addressed the Use of Offensive Language charge. The case file lacked documentation as to why the Unauthorized Use of a GOV offense identified in the proposal letter was disregarded.

  3. Two misconduct cases were combined into a single adjudication action. A charge of Unauthorized Use of a GOV was combined with the additional charges of (1) Unauthorized Use of a Government-Rented Vehicle, (2) Failure to Provide Accurate Information to a Management Official, (3) Unauthorized Use of the National Crime Information Center (NCIC), and (4) Attempting to Interfere with an Official Investigation. The Discipline Panel sustained all the charges and proposed the employee be removed from the USMS. The deciding official only sustained the charges of Unauthorized Use of a GOV and Unauthorized Use of the NCIC. The decision letter stated that the other three charges were not sustained by a preponderance of the evidence. As a result, the proposed removal was mitigated to a 30-day suspension -- the mandated penalty for "willful" Unauthorized Use of a GOV. However, the decision letter did not address any discipline for the second sustained offense of Unauthorized Use of the NCIC.

  4. A charge of Unauthorized Use of a GOV was mitigated from a 30-day suspension proposed by the Discipline Panel to a Letter of Reprimand. The decision letter stated that in the opinion of the deciding official, it was unclear whether the employee received permission from a supervisor to use the GOV for personal use. This opinion contradicted the evidence and documented statements of the employee and the employee's supervisors presented in the proposal letter that supported "willful" Unauthorized Use of a GOV. The deciding official did not document the reasoning used and the reason for mitigating the penalty from the statutory 30-day suspension to a Letter of Reprimand. The decision letter did not explain why the evidence was unclear. The employee response was not in the case file. Therefore, we could not accurately determine how the process ended with a drastic mitigation of the proposed penalty.

  5. A charge of Unauthorized Use of a GOV was combined with a charge of Failure to Report a Motor Vehicle Accident in a GOV. The Discipline Panel proposed a suspension of 30 days. The deciding official sustained both charges and imposed a penalty of 30 days, a suspension equal to the mandated penalty for "willful" Unauthorized Use of a GOV. However, the decision letter did not address any discipline for the second sustained offense of Failure to Report a Motor Vehicle Accident in a GOV.

In cases 1 and 4, the decision letter or the official case files did not document the reasoning used concerning a significant mitigation of a proposed penalty. In cases 2, 3, and 5, the decision letter or the official case file did not document the reasoning behind the apparent disregard of a substantiated offense.

Misconduct Cases Involving the Improper Use of a Government-Issued Travel Credit Card

USMS policy states that the government-issued travel charge card is for official travel only and that cash advances can only be obtained when an employee is authorized for official travel.

As shown in Table 1 on page 7, our sample included a total of eight cases related to the Unauthorized Use of an Official Government-Issued Travel Card or the related Failure to Honor Just Debts (Travel Card). In the seven case synopses, we describe how the case files lacked adequate documentation of the reasoning used to support the final penalty decisions imposed. 9

  1. An employee was charged with Misuse of Government Property in relation to over $45,500 in unauthorized purchases and cash advances accumulated over a 15-month period using a government-issued travel card. The Discipline Panel proposed a 30-day suspension. This 30-day suspension was mitigated to a 14-day suspension through a settlement agreement. Although the penalty imposed was within the parameters of the Table of Offenses, neither the case file nor the settlement agreement contained documentation outlining the reasoning applied in the penalty mitigation.

  2. An employee was charged with Unauthorized Use of a Government-Issued Travel Card after obtaining over $5,100 in unauthorized ATM cash advances during an 8-month period. An additional charge of Failure to Pay Just Debts in a Timely Manner was added to the first charge. This second charge was related to a previous outstanding balance of approximately $4,500 that existed on the account at the time of the investigation (unpaid balances covering 10 months). The deciding official mitigated the proposed 2-day suspension to a Letter of Reprimand. The decision letter documented the deciding official's reasoning for mitigating the penalty as the employee's sincere remorse and assurance that the debt would be paid by a specified date. However, the case file did not contain documents detailing the employee's response.

  3. An employee was charged with Misuse of a Government-Issued Travel Card as a result of two unauthorized cash withdrawals totaling approximately $404. According to ERT's automated database the proposed penalty of a 2-day suspension was mitigated by the deciding official to a Letter of Reprimand. Although the Letter of Reprimand decision is the minimum allowable penalty suggested in the Table of Offenses, the case file did not contain the decision letter that may have documented the reasons for mitigating the proposed discipline.

  4. An employee was charged with Failure to Honor Just Debts in a Timely Manner for failure to make payments for a $1,468 travel debt accrued on a government-issued travel card, though the employee had been reimbursed for the travel expenses. A Letter of Reprimand was proposed and imposed by the deciding official. We found a notation in the ERT's automated database that stated, "District reluctant to take more severe discipline action against employee, regardless of his admission that he lied to his superiors." In addition, charges identified in the OIA investigative report confirming that the employee lied during the investigation were not acted upon. Also, the proposal letter characterized this misconduct case as a first offense. However, previous offenses involving the Failure to Honor Just Debts in a Timely Manner and Improper Use of a Government-Issued Credit Card had been sustained a few months prior, and the employee had received a Letter of Caution for those offenses.

  5. An employee was charged with Misuse of a Government-Issued Travel Card and Failure to Report an Accident in a Timely Manner. The employee had failed to pay the credit card company over $2,200 in travel expenses already reimbursed to the employee. The employee also misused the credit card to accumulate over $3,100 in unauthorized personal purchases. In addition, the employee failed to file a timely government motor vehicle accident report related to a vehicle accident that resulted in a claim for over $17,000. The deciding official mitigated the penalty for all these offenses from a proposed 1-day suspension to a Letter of Caution. As part of the reason for mitigating the penalty the deciding official cited the employee's response to the proposal letter. However, the case file did not contain any documents detailing the employee's response.

  6. An employee was charged with Absence Without Leave (AWOL), Misuse of a Government-Issued Travel Card for 13 unauthorized cash advances totaling approximately $1,000 during the AWOL period, and Loss of a Government-Issued Weapon. The Discipline Panel initially proposed removal. The Panel reduced the proposed penalty to a 14-day suspension following the OGC's review of the case. The OGC recommended against the removal based on the employee's past discipline history within the reckoning period, 10 a strict interpretation of the reckoning period for repeat offenses, the likelihood the case would not withstand an MSPB appeal, and the incomplete investigation of several case issues. The OGC recommended that the Panel consider either a mitigation of the proposed penalty to remove the employee or return the case to the OIA for an investigation of the unaddressed issues. The Discipline Panel elected to propose a 14-day suspension. The 14-day suspension was imposed through a settlement agreement.

  7. Five months later, the same employee (case 6) was charged with Unauthorized Use of a Government-Issued Travel Card involving three unauthorized cash withdrawals for a total of $820. The Discipline Panel again proposed removal. This second proposed removal was mitigated to a 60-day suspension (with 30 days held in abeyance) as a result of another settlement agreement. An additional unauthorized cash withdrawal of $600, which occurred after the employee was interviewed by OIA for the $820 in withdrawals, was not included in this case. In addition to these two separate cases, the automated database maintained by the ERT lists a number of disciplinary actions for this employee dating back to 1990. The case file does not provide the reasons for the penalty mitigation decision, in particular, the reason against the proposed removal given the considerable discipline record of the employee.

In sum, for the misconduct cases involving Unauthorized Use of a Government-Issued Travel Card, the USMS imposed a wide range of penalties, such as a Letter of Caution (informal discipline), a Letter of Reprimand, and a 14-day suspension (formal discipline). After reviewing the case files we conclude that:

Official Personnel Folders Do Not Always Reflect Whether Discipline Has Been Enforced

We reviewed the official personnel folders of employees for the cases where formal discipline decisions had been imposed to determine whether the USMS enforced the penalty decisions. Formal discipline actions, such as a suspension, a reduction-in-grade, or a removal, affect an employee's pay, position, or continued employment. They must be documented on a Standard Form 50 (SF-50), Notification of Personnel Action, and filed in the employee's official personnel folder. 11

As shown in Table 1 on page 7, 27 of the 50 misconduct cases in our sample involved formal discipline decisions. However, we found that 8 of the 27 employees' official personnel folders (30 percent) did not contain an SF-50 documenting that a specific discipline action had been enforced. 12 We contacted District management to obtain either documentation or verbal verification that the discipline had been enforced in these eight cases. We only were able to obtain verbal verification from District management for four of the eight cases.

Recommendations

  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.

  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.

The Timely Adjudication of Misconduct Cases is not Always Accomplished

During the adjudication phase, a misconduct case is under the control of the ERT, the proposing official(s), or the deciding official. The progression of a case can be affected by factors such as employees' requests for extensions or officials asking for additional information. A case's progression can also be affected by influences external to the discipline process, such as when an employee requests ADR mediation, registers an Equal Employment Opportunity (EEO) complaint, or files a grievance. Other factors that can affect timely adjudication involve the severity of the allegation (proposed discipline over 14 days) and the subsequent OGC review. If the proposed discipline calls for a removal from the USMS, the Workforce Relations Group (WRG) in the DOJ's Justice Management Division (JMD) is also required to review the case (see Appendix 2).

Yet, based on the data in the case files and the ERT's automated database, we found 14 of the 50 misconduct cases (28 percent) in our sample had significant periods of unexplained elapsed time that prolonged the adjudication. The ERT staff could not account for the extended timelines in the 14 cases using the documentation in the case files, the information recorded in the automated database, or personal memory.

Table 2 on the following page shows the time range for the adjudication of the 50 misconduct cases after ERT's receipt of the investigation report from the OIA:

Table 2: Timeliness of Misconduct Case Adjudication

Elapsed Days From ERT's
Receipt of Completed Investigation
Report to Signed Decision Letter
(50 Cases)		 Number of
Cases (%)
30 days or less
31 days to 90 days
91 days to 180 days
181 days to 270 days
271 days to 360 days
361 days to 436 days		 7 (14%)
16 (32%)
13 (26%)
7 (14%)
5 (10%)
2 (4%)
Total 50 (100%)
Source: ERT official case files and automated database.

The overall adjudication timeline for the 50 cases varied from 1 to 436 days, while the average adjudication time for the 50 cases was 140 days.

The following synopses describe 4 of the 14 cases with the longest periods of unexplained elapsed time:

Table 3 displays the other ten cases with lengthy, unexplained time periods:

Table 3: Unexplained Adjudication Time Periods

Misconduct Offense Number of Days
from ERT Receiving Case
to the Proposing Official(s)		 Number of Days
to Issue
Proposal Letter		 Number of Days
to Issue
Decision Letter		 Total Days
in
Adjudication
Phase
1. Unauthorized Use of a GOV a 39 57 154 250
2. Misuse of Office a61 48 107 216
3. Unauthorized Use of a GOV a b 4 180 79 263
4. Failure to Honor Just Debts (Travel Card) a 7 122 104 233
5. Disorderly Conduct 70 31 76177
6. Violations of Standards of Conduct 27 145 113 285
7. Disgraceful Conduct a 19 84 156 259
8. Discharge of a Weapon With No Apparent Threat a 61 47 57 165
9. Violations of Standards of Conduct 1 74 14 89
10. Association w/ Individual Known to be Involved in Criminal Activity 3 37 169 209

Source: USMS misconduct case files

a Case involved additional offenses.
b Multiple cases combined into one adjudication.

Note: The emboldened numbers indicate the considerable unexplained time period for each case.

The DOJ has stressed the importance of processing discipline cases timely. A DOJ report entitled, "Justice Performance Review, Adverse Actions in the Department of Justice," November 6, 1995, stated:

It is a long-held management principle that an adverse action is most likely to have the desired effect when it is carried out as close to the event as possible. Delaying action in misconduct and performance cases not only permits the inappropriate activity to continue for an extended period of time, but can also result in other employees forming an impression that the activities in question are not viewed as serious or inappropriate by agency supervisors.

Also, DOJ Human Resources Order 1200.1 states, "…there is no limitation with respect to when discipline must be effected after the commission of misconduct. However, managers are encouraged to act in a timely manner."

The ERT needs to ensure that misconduct cases are adjudicated in a timely manner. The ERT should establish and implement timelines for the various stages involved in the adjudication of a case and monitor a case's progress against those timelines. 13 Currently, the ERT does not consistently exercise adequate management oversight of all misconduct cases. This results in some misconduct cases exceeding reasonable adjudication time periods.

Recommendation

  1. The USMS Director should instruct the HRD to establish timelines for the adjudication of misconduct cases and to use the timelines to monitor the status of each case through the process.

The ADR Program Does not Manage its Caseload for the Timely Processing of Misconduct Cases

The ADR Program is a non-traditional, non-adversarial, informal process that uses a trained facilitator as a neutral third party to resolve workplace conflicts between two or more parties. The USMS ADR Program is under the oversight of the HRD but is separate from the ERT, which administers the adjudication phase of the formal discipline process. Day-to-day management and cost accountability for the ADR Program is the responsibility of the ADR Ombuds.

The USMS's ADR Handbook (June 1999) states that 60 calendar days are allowed for resolution of a dispute once an employee has initiated a request for ADR. An additional 30 days is allowed if the employee and agency official(s) both agree to the extension.

According to the ADR Ombuds, approximately 150 cases have been submitted to ADR since the program's inception; 41 of these were identified as misconduct cases. The ADR Ombuds stated that 60 days is a reasonable goal for mediating ADR disputes. Based on data provided by the ADR Ombuds, however, 27 (66 percent) of these 41 misconduct cases have exceeded the 60-day time period. 14

The ADR Ombuds provided data describing the status of the 41 misconduct cases. Our analysis showed the following:

As noted above, after 60 days (90 days if a 30-day extension had been granted) in the ADR Program, misconduct cases should resume adjudication through the formal discipline process. However, the ADR Ombuds does not monitor or return misconduct cases that have exceeded these time periods to the ERT. The ERT does not monitor the status of misconduct cases sent to the ADR Program or request the return when the 60-day deadline has expired. Consequently, cases have languished in ADR.

The ADR Ombuds cited inadequate staffing for the ADR Program that includes both misconduct and performance cases. The ADR Ombuds estimated that 50 percent of his time is directed to the ADR Program duties and the other 50 percent is directed to Labor Relations Program duties. During our review, a full-time assistant was appointed to the ADR Program. In addition to the assistant, the ADR Ombuds has approximately 20 trained USMS personnel located in various USMS districts to assist as facilitators in mediating disputes. 16 However, the Ombuds has not used the majority of these facilitators to assist in the mediation of misconduct cases. The Ombuds stated that, despite the training, he believes most of the USMS facilitators are not sufficiently knowledgeable about personnel management laws and regulations to effectively resolve personnel issues. Consequently, when seeking mediation assistance, the Ombuds relies predominantly on contract personnel to serve as facilitators. 17 Despite the availability of these additional USMS and contract facilitators, the ADR Program's 60-day time limit is not being met.

During interviews with officials in the USMS OGC, they expressed concerns about the timeliness of the ADR Program and the types of cases accepted into the ADR Program. The OGC believed that misconduct cases that are appealable to the MSPB should not be accepted into the ADR Program before the decision letter is issued. The ADR Handbook states, "ADR is generally not an option in discipline actions appealable to the MSPB." Despite that policy, the ADR Ombuds told us that the MSPB was incorporating ADR into its own process. Therefore, the Ombuds believed ADR at the USMS-level for these appealable cases was also appropriate and had accepted cases prior to a decision letter being issued.

According to 5 CFR 1201.22(b)(1), the MSPB acknowledges ADR as a method of resolving disputes prior to filing a formal appeal. The MSPB allows a time extension for filing an appeal "Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process…." While ADR may be an acceptable and less costly method of reaching agreeable solutions in misconduct cases, we believe that the USMS, not the ADR Ombuds alone, should decide what types of cases are eligible for ADR and at what stage the cases are appropriate for ADR.

We did not assess the ADR Program's database as part of our review. However, we have concerns about the reliability of the data. These concerns are attributed to the inconsistent quality of the data we received and the length of time taken by the ADR Ombuds to compile the data. For example, the ADR Ombuds could provide us with only a verbal estimate of the total ADR caseload, and we had to request several versions of the ADR misconduct case data because of incompleteness or inaccuracies. Entering consistent, accurate, and complete data in a timely manner is essential to improving the case monitoring capabilities and the administration of the ADR Program.

Recommendations

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

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

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

  4. 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.

Inconsistent Data Entry Procedures Results in Unreliable Case Information

The ERT does not have written standards addressing the primary source, the completeness, and the accuracy of the information about misconduct cases entered in its automated database. At the time of our review, ERT staff could individually determine and enter what they considered to be relevant data for each case. The automated database does not contain edit checks identifying required fields or incomplete or inaccurate information. The ERT does not periodically review the database to identify and correct deficiencies to ensure the integrity of the information. As a result, we found numerous instances of either incomplete (blank data fields) or inaccurate (wrong dates) data entered in the ERT's automated database. Complete and accurate case management information is a critical element for monitoring the progress of each case, for analyzing case trends, and for assessing needed changes in the adjudication phase overall.

Recommendation

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

Discipline Process Entities are not Effectively Coordinating Efforts

The USMS entities involved in the discipline process--the OIA, the ERT, the OGC, the ADR Program, the EEO Office, and the Discipline Panel--must work closely to ensure that misconduct allegations are investigated and adjudicated in a manner that is consistent, timely, and responsive to the needs of USMS. During our interviews, officials from these entities expressed concern or uncertainty about specific discipline process responsibilities, procedures, timelines, and work quality. Some of the general concerns mentioned by these officials involved the need for:

Officials told us that they had met periodically to discuss discipline process issues. However, these meetings were discontinued about a year ago because of a turnover in USMS leadership. We found no documentation describing the frequency or what was discussed or accomplished at the meetings. Based on our interviews and observations, we believe the USMS must improve coordination among the entities involved in the discipline process. Our review shows the necessity for corrective actions for some of the issues listed above. The USMS needs to renew its previous efforts to identify and address issues that affect the discipline process.

Recommendation

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

Performance Standards Have not Been Established for Adjudicating Misconduct Cases

The USMS has not established performance goals and measures for the adjudication phase of the discipline process. The Government Performance and Results Act of 1993 (GPRA) requires agencies to set multiyear strategic goals and corresponding annual goals to measure the performance toward the achievement of those goals and to report on their progress. Although the GPRA addresses the major functions and operations of agencies, the concept of measuring outcomes to improve effectiveness applies to all programs and processes. Setting goals and measuring performance helps to establish priorities, control operations, communicate accomplishments, and motivate staff.

The Department's Strategic Plan for Fiscal Years 2000-2005 outlines specific program goals, objectives, and strategies. One strategic goal is to "ensure excellence, accountability, and integrity in the management and conduct of Department of Justice programs." A strategic objective supporting this goal addresses human resources.

The USMS published three multi-year planning documents in response to the GPRA and the Department's Strategic Plan. 19 Each plan addresses human resources. The USMS Performance Management Program (PMP) identifies performance measures related to the OIA's investigative phase of the discipline process. However, goals and measures for the ERT's adjudication phase of the discipline process are not included. In the absence of performance goals and measures in the broader USMS planning documents, the HRD and ERT have not fully developed and implemented internal performance goals, standards, and measures for guiding the work efforts of ERT personnel and for identifying strengths and weaknesses in the adjudication of misconduct cases overall. 20 As a result, progress toward achieving basic desirable goals and objectives of the discipline program goes unmeasured.

Recommendation

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

The OIA Does not Report all Misconduct Allegations to the OIG

According to OIG policy memorandum, "Guidelines for Reporting Allegations of Misconduct to the OIG," July 1, 1998, and USMS Policy Directive 99-33, "Misconduct Investigations," August 2, 1999, misconduct allegations received by the OIA will be forwarded to the OIG. 21 We found that the OIA is not fully complying with these policies.

Prior to forwarding an allegation to the OIG, the OIA performs a "preliminary investigation" of the allegation. If the OIA determines that the alleged misconduct did not violate USMS policy or that enough information is not provided to warrant opening a formal investigation, then the OIA considers the allegation "closed." In this instance, the allegation is not forwarded to the OIG for review.

The OIA's FY 1998, FY 1999, and FY 2000 annual statistics show that 70, 93, and 76 misconduct allegations were classified as preliminary investigations and closed. These 239 misconduct allegations were not reported to the OIG as required.

Table 4 below and Table 5 on the following page show the types and numbers of misconduct allegations that were preliminarily closed by the OIA and not reported to the OIG in FY 1998 and FY 2000. These statistics were not available for FY 1999.

Table 4: Allegations Closed by OIA After Preliminary Investigations
and not Forwarded to the OIG-FY 1998

Allegation Number
Lost/Stolen Government Property
Firearms/Weapons Violations
Discrimination Complaints
Fiscal Improprieties
Prisoner Violations
Investigative Violations
Personnel Prohibitions
Off Duty Misconduct
On Duty Misconduct
Use/Misuse of Government-Owned Vehicles
Other Violations		 1
1
2
14
7
2
14
4
14
4
7
Total 70
Source: USMS Office of Internal Affairs

Table 5: Allegations Closed by OIA After Preliminary Investigations
and not Forwarded to the OIG-FY 2000

Allegation Number
Conduct Unbecoming
Fraud or Theft
Hostile Work Environment
Misuse of a Government-Owned Vehicle
Misuse of Position
Missing or Mishandled Prisoner Property
Unfair Personnel Practices		 39
16
1
5
1
7
7
Total 76
Source: USMS Office of Internal Affairs

The allegations include firearms violations, discrimination complaints, fraud, and hostile work environment misconduct that require immediate or 48-hour reporting to the OIG by the USMS according to OIG policy. See Appendix 1 for OIG classification levels for reporting allegations.

One case in particular illustrates the importance of OIA reporting all misconduct allegations to the OIG rather than discretionarily closing allegations through preliminary investigations. This case was active and involved various allegations of unprofessional misconduct concerning two USMS employees. These two employees were found to have created a fictitious, sexually explicit letter that identified two other USMS employees as the subjects of the letter. The letter was crafted to appear as an official USMS document. Although the allegation was reported immediately to the OIA, the OIA reviewed, closed, and referred the allegation back to the originating office for "appropriate managerial action." As a result, the immediate supervisor issued an oral admonishment to one of the two employees involved. This allegation was not reported by the OIA to the OIG, as required.

Approximately five months later, the OIA reopened the case and forwarded the allegation to the OIG upon receiving requests to reopen the investigation from the HRD and a division official charged with oversight of the office where the incident occurred. The OIA conducted interviews with nine employees who had seen or heard of the letter. This case remains open after approximately 22 months from the occurrence and initial reporting of the incident. The Discipline Panel has reviewed the case and proposed suspensions for 5 and 7 days, respectively, for the two employees. As of June 19, 2001, one case was in ADR and one case was in the decision stage of the adjudication phase of the discipline process. We also found that allegations for 16 of the 50 misconduct cases (32 percent) we selected for our sample were not reported to the OIG. In 9 of these 16 cases, the OIA never reported the allegations to the OIG. The OIA had formally investigated and substantiated these 9 allegations and sent the reports of investigation to the ERT for adjudication. The OIA was unable to provide any documentation or reasoning as to why the 9 cases had not been reported to the OIG. Some of these cases involved allegations of unauthorized use of a government-owned vehicle, unauthorized discharge of a weapon, disrespectful conduct, and failure to properly transport prisoners.

The remaining allegations for 7 of the 16 cases had not been reported to the OIA by the originating district office. Four of the seven allegations not reported occurred in one district. As a result, the OIA was unaware of these allegations and therefore, could not report them to the OIG. 22 Some of these cases involved allegations of disorderly conduct and failure to use proper restraints.

Separate from our case file review, we also interviewed five Chief Deputy United States Marshals (CDUSM) who serve as the proposing officials for misconduct cases in their respective districts. Three of the five CDUSMs we interviewed said they have exercised discretion on whether or not to report certain types of misconduct to the OIA. This discretion was based on the initial source of the complaint (internal or external to the district) or the perceived severity of the misconduct. However, USMS Policy 99-33 does not allow for discretion by employees, supervisors, or managers in reporting misconduct allegations. USMS Policy 99-33 states, "…employees are also responsible for immediately reporting misconduct allegations or violations of policies and procedures to their immediate supervisor, the OIA, or the OIG . . . USMS managers/supervisors [are] responsible for…reporting all misconduct complaints immediately to OIA."

The OIG has previously expressed its concern to the USMS regarding compliance with the OIG reporting requirements. In an OIG memorandum sent to the USMS, "Policy on Reporting Misconduct," February 23, 1999, the OIG Investigations Division stated,

We are concerned that current USMS reporting of misconduct is not consistent with our July 1, 1998, reporting guidelines policy memorandum. We are particularly concerned with Classification I allegations which are the most serious offenses, requiring immediate reporting to OIG field offices, and often requiring contemporaneous response. It is our perception that there may be confusion at the District level regarding the requirements of reporting misconduct. We understand that Districts are allowed to handle certain "performance" issues at the local level. However, the line between performance and misconduct is often not clear and we are concerned that misconduct is being handled as performance without reporting to OIA or the OIG.

Although OIG and USMS policies require that allegations of misconduct be reported through the OIA to the OIG, adherence to these policies has been inconsistent within the USMS. As a result, the OIA and the OIG are not fully aware of misconduct allegations and cannot ensure that they are properly investigated and adjudicated. The OIA and the OIG also do not have complete information on misconduct within the USMS for analyzing trends, identifying systemic problems, and recommending solutions to these problems.

Recommendations

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

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

Footnotes

  1. Discipline actions may be informal or formal. Informal discipline actions, such as oral admonishments and verbal warnings, are not made a matter of record in the employees' official personnel folders. Formal discipline actions, such as suspensions, reductions in grade or pay, and removals, are required to be documented in the official personnel folders.

  2. Twelve of the 25 cases had more than one instance of inadequate documentation.

  3. The OIA conducted the investigation for all five cases.

  4. The OIA conducted the investigations for all seven cases.

  5. The reckoning period is used to determine whether an offense is a first, second, or third offense. The reckoning period begins on the date management becomes aware of a first offense and continues for the number of days contained in the reckoning period (e.g., 365 days or one year). Recurrences of similar offenses within the reckoning period will result in increasingly severe penalties.

  6. The SF-50 serves as the permanent record of personnel actions in an employee's official personnel folder. Informal discipline (e.g., oral admonishment, letter of caution) documentation is not required to be in the official personnel folders.

  7. All eight of these cases involved a 1-day suspension or more.

  8. During our fieldwork the ERT was unaware of any timelines for adjudicating misconduct cases. However, prior to issuance of this report, the HRD did provide the OIG with a document describing partial timeline standards for adjudicating cases.

  9. Our review of the ADR data showed that 23 of these 27 cases had also exceeded the 90-day limit. The data did not show any requests for, or granting of, 30-day extensions in these 23 cases. The OIG team did not review individual ADR case files.

  10. Discipline penalties, such as those established in the Table of Offenses, do not have to be applied in the ADR Program. However, we compared the ADR outcomes versus the discipline penalties proposed during formal case adjudication. For 6 of the 15 closed cases, the ADR agreement matched the formally proposed discipline action. For 5 of the 15 closed cases, the ADR agreement was slightly less than the proposed discipline action (such as proposed letters of reprimand mitigated to letters of caution). For 2 of the 15 closed cases, the ADR agreement was considerably less than the proposed discipline action. A 30-day suspension was reduced to 3 days and a 45-day suspension was reduced to 12 days. For the 2 remaining closed cases, the ADR Program did not provide data on the outcome of the ADR agreements.

  11. USMS personnel were trained and certified as facilitators by undergoing a 3-day course conducted by the Justice Center of Atlanta, a non-profit organization.

  12. Contract personnel serving as facilitators are employees of the Federal Personnel Management Institute and cost the USMS $85.00 an hour for labor and materials, which is paid by the ADR Program. The ADR Program could not provide data on how many times contract facilitators were used or the total cost to the USMS.

  13. Because requests to OIA for additional investigative work are usually accomplished telephonically and rarely documented, the frequency of this issue could not be determined.

  14. The planning documents are the USMS Fiscal Year 2000 Performance Management Program (PMP), July 1999; the USMS Tactical Plan FY 2000-2002, July 1999; and the Marshal's Service 2000: The Strategic Plan of the USMS, 1997 and Beyond, February 1997.

  15. Partial timelines for the adjudication of cases has been developed but not yet implemented.

  16. This OIG policy memorandum was also directed to the Immigration and Naturalization Service and the Bureau of Prisons.

  17. One of the seven cases was eventually reported to the OIG after a judge who presided over the conviction of a USMS employee wrote a letter to the USMS Director expressing concern that misconduct incidents may be occurring without management's knowledge.