B. Evaluating DOJ Participation in the Roundup
The Roundup was not an official function; thus, DOJ employee participation was in a purely private, rather than official, capacity. The fact that this participation was during their off-duty time does not, however, preclude review of their conduct. Department of Justice employees must abide by DOJ standards of conduct at all times, and where there is a connection between the off-duty conduct and the employee's job performance or the efficiency of the Department, the Department may discipline employees for off-duty misconduct. [ / This connection may be established by one of three circumstances: first, where there are "egregious circumstances" based on the nature and gravity of the conduct there is a rebuttable presumption of the requisite nexus; second, where the misconduct adversely affects the employee's or his co-worker's job performance or management's trust and confidence in the employee's job performance; and third, where the misconduct interferes with or adversely affects the mission of the agency. See e.g., Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (M.S.P.B. 1987). ]
All Justice Department employees are at a minimum bound by the Office of Personnel Management (OPM) regulations that prohibit federal employees from engaging in "criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct prejudicial to the government." [ / See 5 C.F.R. § 735.203. ] They are also bound by the Office of Government Ethics standards of conduct for employees of the executive branch which impose a duty, inter alia, to adhere to all laws and regulations that provide equal opportunity for all Americans. [ / See 5 C.F.R. § 2635.101(b). ] In addition, DOJ's supplemental standards of conduct prohibit employees from engaging in "disrespectful conduct," including the use of "insulting, abusive, or obscene language to or about others." [ / Specific components of the Department of Justice have adopted additional standards for their employees. See, e.g., FBI Manual of Administrative Operations and Procedures, Part I, §§ 1-2 (The FBI "expects its employees to so comport themselves that their activities both on or off duty will not discredit either themselves or the Bureau."); USMS Code of Conduct, Policy Notice No. 95-018 (Each employee whose conduct on and off duty reflects upon the Federal Government is required to refrain from any activity which would adversely affect the reputation of the Department of Justice, and demonstrate the highest standards of personal and moral conduct expected of law enforcement officers and other government employees); see also DEA Code of Conduct, Section 2735 et seq.; INS Officer's Handbook; BOP Standards of Conduct, No. 3420.06. ] Furthermore, because of their particular responsibilities, law enforcement officers are held to even higher standards, and any conduct that could affect their ability to fairly investigate or prosecute may subject them to discipline, including dismissal. [ / See, e.g., Quander v. Department of Justice, 22.M.S.P.R. 419 (M.S.P.B. 1984); aff'd, 770 F.2d 180 (Fed. Cir. 1985)(A law enforcement officer occupies a position of great trust and responsibility and consequently will be held to a higher standard of conduct); Mings v. Dept. of Justice, 813 F.2d 384 (Fed Cir. 1987) (upholding removal of agent who wrote a letter expressing a strong bias against Hispanics because it impaired his reliability as a witness in future proceedings); Barnhill v. Dept. of Justice, 10 M.S.P.R. 378 (M.S.P.B. 1982) (upholding removal of agent who engaged in off-duty conversations of an obscene nature and threatened violence against an individual due to concerns about credibility of agent as a witness in law enforcement proceedings). ]
If any Department of Justice employees directly engaged in the types of racist conduct displayed at various Roundups, they could be subject to discipline. [ / See, e.g., Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995) (upholding discipline of a white police officer for attending a Halloween party carrying a watermelon and dressed in blackface, wearing bib overalls and a black, curly wig); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (upholding discharge of university basketball coach for use of term "nigger" in motivational talk to his players); Lawrenz v. James, 852 F. Supp. 986 (M.D. Fla. 1994) (upholding discipline of a state correctional officer who wore a "white power" T-shirt with a swastika to a private barbecue); Hawkins v. Dept. of Public Safety, 602 A.2d 712, 325 Md. 621 (Md. 1992) (upholding discharge of prison guard for off-duty comments to bank teller that "Hitler should have gotten rid of all of you Jews"); McMullen v. Carson, 754 F.2d 936 (8th Cir. 1985) (upholding discharge of sheriff's department employee who was a recruiter for the KKK). ] We also believe that where an employee attends an event knowing that racist conduct is the purpose of the event or is repeatedly condoned or tolerated at the event, his attendance similarly affects his effectiveness as a law enforcement agent. Where such behavior is not one of the purposes of the event and is not encouraged or approved by the attendees but where some small number of individuals engage in an isolated incident of racist conduct, mere attendance should not, in most circumstances, be held against an employee. Where, however, such behavior is permitted to continue or becomes a recurring and central feature of an event, an employee would be expected to take remedial action or leave the event once such racist conduct appears and to refrain from attending any events at which he or she can reasonably expect that such racist conduct will occur.
Disgraceful conduct at the Roundup was not limited to racism. Overwhelming evidence exists of extreme drunkenness, shockingly crude and tasteless behavior, and other conduct unbecoming to anyone, particularly law enforcement officers. Such conduct could constitute infamous or notoriously disgraceful conduct and subject employees who engage in such behavior to possible discipline.
During the course of this investigation, over 500 people who attended Roundups and numerous others who claimed to have heard about events at the Roundup were interviewed. Except for one inappropriate comment by an FBI agent in 1995, we received no allegations and found no evidence that any current or former Justice employee participated directly in any of the alleged racist, criminal, or disgraceful conduct. We looked further, however, to determine whether DOJ employees who attended were aware of racist or criminal conduct at the Roundup and, if so, whether they took any action to stop or report the activity. We also looked at whether, having knowledge of the existence of any such behavior, the employee believed that the Roundup organizers had taken sufficient action to eliminate the behavior or elected not to return because of their failure to do so.