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Review of the FBOP Disciplinary System, OIG, 2004

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U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

I

I'~

Review of the
Federal Bureau of Prisons'
Disciplinary System
Report Number 1-2004-008

September 2004

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EXECUTIVE DIGEST
The Department of Justice's (Department) Office of the Inspector
General (OIG) conducted this review to assess the Federal Bureau of
Prisons' (BOP) disciplinary system. Specifically, we reviewed whether BOP
employees properly reported misconduct; whether investigations were
thorough; and whether disciplinary actions were reasonable, consistent, and
timely. We examined data for BOP employee misconduct cases opened or
closed in fiscal year (FY) 2003, reviewed files related to a sample of 85
randomly selected misconduct cases, interviewed BOP officials, and visited
selected institutions. We also conducted e-mail surveys to collect views on
the agency's disciplinary system from Bpp,deciding officials, investigators,
and employees.
The BOP's disciplinary system is divided into two distinct phases: the
investigative phase, when the BOP investigates alleged employee
misconduct, and the adjudicative phase, when discipline is proposed and
imposed for misconduct allegations that were sustained by the
investigation. The BOP's Office of Internal Affairs (OIA) in the Executive
Office of the Director oversees the iD\(~igative phase. OIA investigators, as
well as investigators assigned to the {'lli;titutions, conduct the investigations.
The Labor Management Relations (LMR) branch in the Human Resources
Management Division oversees the adjudicative phase.
RESULTS IN BRIEF

We found that the investigative phase of the disciplinary process was
thorough and the case files we reviewed were well documented. We also
found no significant differences in how BOP treated employees of different
races, genders, job series, or grade levels during the disciplinary process.
However, we identified deficiencies in the BOP's disciplinary system
that prevent it from ensuring that disciplinary decisions are reasonable,
consistent, and timely. We found the following deficiencies: the BOP does
not require all cases with sustained allegations to be fully adjudicated;
deciding officials often fail to document their reasons fOT mitigating
disciplinary proposals; the independence of the investigative and
adjudicative phases of the disciplinary process can be compromised because
the Chief Executive Officers (CEOs)l have a role in both phases; the BOP
1 According to BOP Program Statement 3420.09, Standards of Employee Conduct,
the CEO is defined as the Warden at institutions, the Director at staff training centers, the
Community Corrections Manager at community corrections offices, the Regional (cont'd)

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

does not ensure that BOP employees receive similar 'penalties for similar
infractions BOP-wide; the BOP does not have written timeliness standards
for processing misconduct allegations; the BOP does not monitor the
reasonableness, consistency, and timeliness of disciplinary decisions; and
BOP employees do not report all employee misconduct. By correcting the
issues identified above and detailed in the report, the BQP can better ensure
that its disciplinary decisions are reasonable, consistent, and timely.
BOP investigations of employee misconduct appeared thorough.

In reviewing a random sample of 85 investigative case files, an OIG
Special Agent concluded that the investigations appeared thorough and. the
files contained the information necessary to understand the actions taken
and the conclusions reached during the investigative phase. Our surveys
also indicated that the BOP's OlA investigators, deciding officials, and
employees generally rated the investigative reports highly for their quality.
BOP disciplinary decisions sometimes did not appear to be reasonable.

Of 92 subjects with sustained allegations in our sample, the CEOs
unilaterally took informal or no disciplinary action for 20 of these subjects
charged with serious misconduct without fully adjudicating the cases or
documenting their reasons for taking these actions. By bypassing the full
adjudicative phase, the CEOs failed to involve other entities with review
responsibilities. Given the serious nature of the sustained misconduct in
these 20 cases, coupled with the minor penalties imposed and the absence
of documented reasons for the decisions, the outcomes did not appear to be
reasonable.
In their role as deciding officials, the CEOs mitigated the proposed
discipline but failed to adequately explain the reasons for the mitigation in
the decision letter for 36 of 92 subjects with sustained allegations. Both
federal regulations and internal BOP guidelines state that deciding officials
must provide reasons for mitigating penalties in the decision letter.
Because of the lack of adequate documentation explaining why the proposed
discipline was mitigated, the penalty imposed did not appear reasonable in
relationship to the proposed discipline.
In addition, the CEOs can influence local investigative reports for
cases in which they also will act as the deciding officials, thereby creating
the potential for outcomes that are not reasonable. In other Department
Director at Regional Offices, and the Assistant Director of each division at the Central
Office.
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Evaluation and Inspections Division

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disciplinary systems we have reviewed, the deciding officials are not involved
in the investigative phase. However, in the BOP, the CEOs have the dual
responsibilities of reviewing and approving local investigations for
misconduct cases in their institutions during the investigative phase and
imposing discipline based on these investigations during the adjudicative
phase. Because of the CEOs' dual responsibilities, the independence of the
investigative and adjudicative phases, which helps to ensure that
disciplinary outcomes are reasonable, can be compromised.
BOP guidance instructs CEOs to impose similar penalties for similar
misconduct only at their current institution, which does not ensure
that discipline is imposed consistently BOP-wide.

An equitable disciplinary system should ensure that employees
receive substantially similar discipline for similar misconduct under similar
circumstances. However, BOP guidance states that CEOs, when acting as
deciding officials, need to be consistent only with their own prior decisions
at the same facility. LMR staff also told us that imposing consistent
discipline is only necessary for the current CEO at each facility because that
is all that is required for imposed discipline to be deemed defensible if the
subject appeals or grieves the decision to a third party. Consequently, two
similarly situated subjects who committed similar misconduct under similar
circumstances at the same institution could receive different penalties
because the subjects had different CEOs. Under current BOP rules, the
CEOs at each of the BOP's 113 institutions, 6 Regional Offices, 28
community corrections offices, 2 staff training centers, and 1 Central Office
may impose different discipline for similar misconduct and circumstances.
BOP data did not indicate that the disciplinary process was affected by
grade level, job series, gender, or race BOP-wide.

We analyzed BOP data to determine whether certain job and
demographic characteristics of the population - job series, grade level,
gender, or race - affected the disciplinary process. The data did not indicate
that these characteristics were a factor in the disciplinary process. We also
attempted to determine the consistency of discipline imposed BOP-wide for
similar charges in our sample of 85 cases, but our sample did not include a
sufficient number of cases with similar charges and circumstances to
perform this type of consistency analysis.

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The BOP did not consistently report, investigate, and adjudicate
employee misconduct cases in a timely manner.

We found that the BOP did not report or process misconduct cases in
a timely manner and that delays sometimes negatively affected the final
discipline that was imposed. For example" our analysis showed that BOP
management did not report 68 percent of serious misconduct allegations to
the OIA within 24 hours, as required by BOP policy. The reporting time for
these allegations averaged 16 days and, in one case, was 106 days. The
OIA, in turn, did not report 23 percent of allegations to the OIG within the
required time frames.
We also found that the BOP has not established written standards for
the timely investigation and adjudicationof employee misconduct. While
officials in the OIA and the LMR provided us with informal time frames, they
did not measure the timeliness of their respective processes against these
standards even though they collected time-related data. Our analysis of the
85 case files showed that the average time for OIA investigators to complete
their investigations was less than the OIA's informal time frame of 90 days.
However, local investigators assigned to the institutions took an average of
103 days to complete the investigations, 43 days longer than the informal
time frame of 60 days.
In those cases in our sample that were adjudicated, disciplinary
action cases (suspensions of 14 days or less) exceeded the informal time
frame established by the LMR by an average of 27 days and adverse action
cases (suspensions of more than 14 days, demotions, or removals) exceeded
the time frame by an average of 20 days. Because the BOP did not monitor
the timeliness of a case as it proceeded through the disciplinary system, it
was unable to identify systemic causes for these delays.
BOP employees did not report all employee misconduct as required.

In our e-mail survey of BOP employees, almost 92 percent of the
respondents said that they had read the BOP's Standards of Employee
Conduct and 96 percent said that they were aware of the BOP's
requirements for reporting employee misconduct. However, 41 percent of
the respondents who said that they had witnessed employee misconduct
stated that they did not always report this misconduct to the proper
authorities. Sixty-six percent of the respondents reported that they did not
believe that their fellow employees always reported misconduct either.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

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Some BOP employees believed that the disciplinary system was not
reasonable, consistent, or timely.
In our e-mail survey of a random sample of BOP employees,
74 percent of respondents who stated that they were aware of investigations
that resulted in discipline believed that the .discipline imposed was
reasonable, while 26 percent found that the discipline imposed was not
reasonable. In terms of consistency, almost 60 percent believed that
employees were treated differently according to their job title or grade level.
Forty-three percent believed that the gender or race of the subject affected
the discipline imposed. BOP employees who commented that employees
were treated differently generally stated that higher-graded staff, noncorrectional officers, white staff, or males received more favorable treatment
than other BOP employees. Regarding timeliness, approximately 43 percent
did not believe that misconduct investigations were handled in a timely
manner, and 34 percent believed that the adjudication of discipline was not
timely. Several employees commented on the negative effect that untimely
resolution of an allegatiori.of misconduct has on an employee's ability to
progress in his or her career, as well as on employee morale.
RECOMMENDATIONS

We make ten recommendations to help the BOP ensure that its
disciplinary decisions are reasonable, consistent, and timely. The
recommendations focus on ensuring that the investigative and adjudicative
phases of the disciplinary system function independently and that sustained
misconduct allegations are fully adjudicated; the reasons for mitigating
discipline are adequately documented; BOP employees receive similar
penalties for similar infractions BOP-wide; misconduct cases are
investigated and adjudicated in a timely manner; and that the BOP develops
controls to monitor disciplinary decisions for consistency throughout the
BOP.
We recommend that the BOP:
1.

Reinforce the existing policy that BOP employees report
allegations of employee misconduct to the proper authorities as
required.

2.

Require that CEOs forward cases with sustained allegations
through the full adjudicative phase.

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U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

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3.

Ensure that when the deciding official mitigates the proposed
discipline, the decision letter contains an adequate explanation
of the reasons.

4.

Remove the CEOs from reviewing and approving investigative
reports of employee misconduct for cases in which they will act
as the deciding official by implementing an alternative review
process that preserves the independence of the investigative
and adjudicative phases.

5.

Reinforce the existing policy that all required documents be
maintained in the disciplinary files.

6.

Develop procedures to ensure that discipline is imposed
consistently BOP-wide, and review discipline for consistency
across the agen~y periodically after these procedures are
implemented.

7.

Reinforce the existing policy that CEOs report allegations of
employee misconduct to the OrA within required time frames.

8.

Reinforce the existing policy that the OlA reports misconduct
allegations to the OIG within required time frames.

9.

Establish written time guidelines for the investigative and
adjudicative phases of the disciplinary system.

10.

Require that the BOP Program Review Division periodically
review a sample of closed disciplinary case files to assess
whether the disciplinary decisions were reasonable, consistent,
and timely.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

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TABLE OF CONTENTS
~

BACKGROUND

1

PURPOSE, SCOPE, AND METHODOLOGy

11

RESULTS OF THE REVIEW

14

,

Investigations of Employee Misconduct

14

Reasonableness of the Disciplinary System

;

Consistency of the Disciplinary System
Timeliness of the Disciplinary System

18
28

:

36

CONCLUSION AND RECOMMENDATIONS

44

APPENDIX I: THE DOUGLAS FACTORS

47

APPENDIX II: CONFIDENCE INTERVALS FOR EMPLOYEE SURVEy .... 49
APPENDIX III: BOP'S RESPONSE TO THE DRAFT REPORT

51

APPENDIX IV: OIG ANALYSIS OF BOP'S RESPONSE

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U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

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BACKGROUND
Federal laws and regulations governing the discipline of federal
employees are found in the Civil Service Reform Act of 1978; Title 5, Code of
Federal Regulations, Part 752, Adverse Actions; and 5 United States Code,
Chapter 75, Section 7501-7504,7511-7514. These laws and regulations
establish the legal framework for federal agencies to address employee
misconduct through disciplinary actions, such as suspensions, demotions,
and removals. In addition to formal disciplinary action, agencies may also
impose informal discipline, such as oral reprimands. According to Title 5,
agencies may discipline employees "for such cause as will promote the
efficiency of the service." In other words.ian agency can impose discipline
when an employee's misconduct interferes with the agency's ability to carry
out its mission.
Agencies establish disciplinary systems to maintain orderly and
productive work environments by communicating to employees the conduct
that is not acceptable. An agency's table of offenses and penalties defines
the actions that violate the standards of conduct and hinder the
performance of its mission. The table of offenses also defines the range of
discipline that the agency may impose when an employee commits
misconduct. When an agency imposes discipline, it is conveying to the
employee the need to recognize, correct, or improve substandard conduct.
Independent investigative and adjudicative phases maintain checks
and balances within a disciplinary system. An equitable disciplinary system
provides reasonable, consistent, and timely discipline to all employees
without regard to external factors such as an employee's position, race, or
gender.
Federal agencies have discretion in determining disciplinary penalties;
the only requirement is that the penalty be reasonable. To help determine
reasonability, in a 1981 decision the Merit Systems Protection Board (MSPB)
established 12 factors, known as the "Douglas factors" (see Appendix I for a
description of the factors), for agency officials to consider when determining
disciplinary actions. 2
2 The MSPB is an independent, quasijudicial agency in the executive branch that
was established by Reorganization Plan NO.2 of 1978, which was codified by the Civil
Service Reform Act of 1978 (CSRA), Public Law 95-454. The CSRi\. , which became effective
January 11, 1979, replaced the Civil Service Commission with three independent agencies:
the Office of Personnel Management (OPM), which manages the federal work force; the
Federal Labor Relations Authority (FLRA), which oversees Iederal Iabor- (cont'd)

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

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The Douglas factors are used to either mitigate (reduce) or aggravate
(increase) a proposed penalty when an employee commits an offense. For
example, a long-term employee with no prior disciplinary history and an
excellent performance record may receive a mitigated penalty compared with
an employee committing the same offense who has been disciplined
previously and has a poor performance record.
Employees who are suspended for more than 14 days, demoted, or
removed have the right to appeal to the MSPB. In the 1981 Douglas
decision, the MSPB established its authority to mitigate agency-imposed
penalties that it determines are "clearly excessive, disproportionate to the
sustained charges, or arbitrary, capricious, or unreasonable.":' The MSPB
also stated that it would review penalties to determine whether the agency
"exercised management discretion within t-olerable limits of reasonableness"
and modify penalties if it found that "the agency's judgment clearly exceeded
the limits of reasonableness."4

Overview of BOP's Disciplinary System
.The Federal Bureau of Prisons' (BOP) disciplinary system consists of
two distinct phases: the investigative phase, when the BOP investigates
alleged employee misconduct, and the adjudicative phase, when discipline is
proposed and imposed for sustained misconduct allegations. The BOP's
Office of Internal Affairs (OIA) in the Executive Office of the Director oversees
the investigative phase. The Labor Management Relations (LMR) branch in
the Human Resources Management Division oversees the adjudicative
phase.
The primary personnel involved in the investigative phase are OIA
investigators, local BOP investigators located at the institutions, and the
Chief Executive Officers (CEOs). The OIAinvestigates allegations of
employee misconduct and monitors and approves investigations conducted
by local BOP investigators at the institutions. Currently, the OIA staff
includes 29 positions (1 vacant) - 15 located in Washington, D.C. (the Chief
of OIA, 1 Supervisory Special Agent, 8 investigators, and 5 support staff)
management relations; and the MSPB. The MSPB assumed the employee appeals function
of the Civil Service Commission and was given new responsibilities to perform merit
systems studies and to review the significant actions of the OPM.
:l

Curtis Douglas v. Veterans Administration, ;)MSPR 280,;) MSPB 313 (1981).

'1

Thomas v. Department of Defense, 66 MSPR ;)46. ;);)1, aff'd 64 F.3d 677 (Fed. Cir.

1995).

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Office of the Inspector General
Evaluation and Inspections Division

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and 13 located in Denver, Colorado (1 Supervisory Special Agent, 8
investigators, and 4 support staff). The local investigators - 129 Special
Investigative Supervisors (SIS) and 48 Special Investigative Agents (SIA) are assigned to institutions and Regional Offices and perform employee
misconduct investigations referred by the OlA, as well as inmate misconduct
investigations." The CEOs review and approve all investigations conducted
at their institutions. According to BOP Program Statement 3420.09,
Standards of Employee Conduct, the CEO is defined as the Warden at
institutions, the Director at staff training centers, the Community
Corrections Manager at community corrections offices, the Regional Director
at Regional Offices, and the Assistant Director of each division at the'
Central Office. Investigations with sustained allegations generally cannot be
adjudicated until the CEO and the OlA have approved the investigation.
The primary personnel involved in the adjudicative phase are the
proposing officials, Human Resources (HR) staff at the institutions and the
regions, LMR staff, and the deciding officials. The proposing officials
propose discipline for misconduct allegations that were sustained in the
investigative phase.f The deciding officials, who determine and impose the
discipline, are normally the CEOs of the institutions and other BOP offices
and facilities. The HR staff at the institutions, with assistance from the
regions, drafts the proposal letters, which inform the subjects of the
proposed penalty, and decision letters, which inform the subjects of the
penalty that will be imposed. The LMR staff (eight employee relations
specialist positions in Washington, D.C., two of which are vacant, and five
positions in Phoenix, Arizona) assists HR staff at the regions and
institutions by providing technical advice and guidance, and reviewing and
approving all proposal and decision letters. Institutions report to either of
the two LMR offices, depending on their geographic location. The LMR also
5 In addition to its 113 institutions and 6 Regional Offices, the BOP also conducts
operations from its Central Office, 2 staff training centers, 811d 28 community corrections
offices. The Central and Regional offices provide administrative oversight and support to
the institutions and community corrections offices. Community corrections offices oversee
community corrections centers and home confinement programs.

b BOP Program Statement 3000.02, section 750.1, Processing Discipline and
Adverse Actions (November 1, 1993), describes the officials who normally serve as
proposing and deciding officials. Generally, the supervisor of the employee is the proposing
official. For example, at institutions the department head. Associate Wardens, Assistant
Superintendents, and Superintendents of Federal Prison Industries are proposing officials
for subordinate staff. Deciding officials are typically the supervisors of the person who
served as the proposing official. At institutions, the Warden generally acts as the deciding
official for all cases proposed by a subordinate.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

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represents the BOP in third-party hearings (e.g. , MSPB cases, arbitration,
and grievance procedure cases}?

The Investigative Phase
BOP employees are required to report immediately to the CEO, the
OIA, or the Department ofJustice's (Department) Office of the Inspector
General (OIG) any attempted or actual violation of the Standards of
Employee Conduct, BOP regulations, or.law. According to BOP Program
Statement 1210.24, once a CEO bec~mes aware of the misconduct
allegation, he or she must classify the allegation and report it to the OIA for
review. This Program Statement also defines the three classifications of
misconduct allegations.
•

Classification I: allegations that would constitute a prosecutable
offense or would be considered serious misconduct (~ physical or
sexual abuse, bribery, extortion). According to the OIA's "Report for
Fiscal Year 2003," ofthe 4,193 cases opened in FY 2003,788 (18.8
percent) were Classification I cases.

•

Classification II: allegations concerning violations of rules,
regulations, or laws that are not likely to result in criminal
prosecution but that constitute serious misconduct (~ threats,
misuse of government materials, sexual harassment). In FY 2003, the
BOP opened 1,287 (30.7 percent) Classification II cases.

•

Classification III: allegations that ordinarily have less impact on
institutional operations (e.g. , unprofessional conduct, failure to follow
instructions). In FY 2003, the BOP opened 2,118 (50.5 percent)
Classification III cases.

The CEO must report Classification I or II allegations within 24 hours
to the OIA on a Referral of Incident Form, along with any related documents
(e.g .. affidavits, photos, medical reports. memoranda). Classification III
allegations are compiled and reported monthly." CEOs investigate

7 In FY 2003, BOP employees appealed 118 cases to the MSPB; the BOP won 77 (65
percent) cases, lost 5 (4 percent), settled 35 (30 percent), and had 1 case mitigated (1
percent). Of the 207 cases brought before an arbitrator, the BOP won 124 (60 percent), lost
20 (9 percent), settled 58 (28 percent), and had 5 cases mitigated (2 percent).

H According to Wardens we interviewed, if t.here is any question or concern as t.o the
correct classification of the allegation, they contact. the OIA for clarification. The (cont'd)

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Office of the Inspect.or General
Evaluation and Inspections Division

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Classification III allegations locally, using assigned ~IS or SIA staff, prior to
notifying the OlA, if the subject is a bargaining unit employee or is a nonbargaining unit employee at the GS-12 level or below. CEOs must notify the
Ol A prior to initiating any Classification III investigation involving nonbargaining unit employees at the GS-13 level or above.
After receiving the allegation, the OIA reviews theassociated
documents for completeness and correct classification. The alA then
forwards the allegation to the OIG for review." Classification I and II
allegations must be reported to the OIG within 24 or 48 hours, respectively.
Classification III allegations that are complex and may result in severe
disciplinary action also must be reported to the OIG within 48 hours. All
other Classification III cases must be reported to the OIG on a monthly
basis.!? Depending on the seriousness of the allegation, the OIG determines
whether to investigate the allegation or refer it back to the OlA.l] If the OIG
refers the allegation back to the OlA, the OfA decides whether to conduct
the investigation itself or refer it back to the institution where the allegation
originated for local investigation by SISjSIA staff.
A BOP investigation usually consists of interviewing the subject(s) of
the allegation, the complainant(s), the relevant witnesses, arid collecting
evidence. Once the investigation is completed, the investigator prepares an
investigative report that includes a determination whether the evidence
sustains the allegation. For local investigations, the CEO reviews the case
file and investigative report for content and completeness before forwarding
it to the alA. The OlA reviews the investigative file for cO,mpleteness,

classification can change as more information is learned prior to or during the
investigation.
lJ The Inspector General Act of 1978, as amended, and Attorney General Order
1931-94, dated November 8, 1994, require misconduct allegations concerning BOP
employees and contractors to be reported to the OIG for review and disposition.

I[) The OIG Assistant Inspector General for Investigations issued a memorandum to
the BOP, dated July 1, 1998, which outlined guidelines for reporting misconduct
allegations to the OIG. This memorandum provided a general breakdown of misconduct
allegations into three separate classes, with corresponding reporting periods to the OIG
depending on the severity of the allegation. The BOP cannot initiate Classification I
investigations prior to receipt and classification of the allegation by the OIG. Classification
II investigations can be started, but the OIG reserves the right to initiate its own
investigation. Classification III investigations can begin prior to OIA or OIG notification.

11 The OIG normally investigates allegations that involve criminal matters or noncriminal allegations involving senior BOP officials.

U.S. Department of Justice
Office of the Inspector General
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accuracy, and to determine whether the investigator'? conclusion is
supported by the evidence. 12 If the CEO or the OIA ques tioris the
completeness or accuracy of the local investigative report (e.g. , whether
certain questions were asked, a specific witness was interviewed, documents
were missing), either can request further investigative work before approving
the investigative report. If the OIA or the OIG conducted the investigation,
the CEO is provided with a copy of the investigative report and the related
affidavits.
If the investigation does not sustain the allegation, the disciplinary
process ends and the subject is notified of the result within seven working
days. If the investigation sustains the allegation, the relevant investigative
case file documents are forwarded to the HR staff at the institution to begin
the adjudicative phase of the disciplinary process.

The Adjudicative Phase
The institution HR staff receives the investigative file from the CEO
and reviews the content to recommend appropriate discipline. This
recommendation is based on the specifics of the case, the discipline
previously proposed in similar cases by the current CEO at that institution,
and the range of discipline described in BOP's Standard Schedule of
Disciplinary Offenses and Penalties (its table of offenses}.":' The institution's
HR staff, in conjunction with the proposing official, determines the
appropriate proposed discipline.
Once the HR staff and proposing official agree on the proposed
discipline, the HR staff prepares a draft proposal letter that describes the
12 BOP Program Statement 1210.24, Office of Internal Affairs (May 20,2003),
requires that the O'IA review and approve Classification I and II investigation reports prior
to any disciplinary or adverse action being proposed. For Classification III investigations,
the institution sends a one-page case summary t.o the OlA after it takes disciplinary or
adverse action.
13 The BOP table of offenses, which is attached as part of BOP Program Statement
3420.09, Standards of Employee Conduct, serves as a guideline when determining the
appropriate level of discipline. The table was last revised in 1999. The table lists a range of
suggested discipline for the first, second, and third offense. The range for most offenses is
"intentionally broad," with penalties ranging from a Letter of Reprimand to removal. The
table has 54 categories of offenses. Misconduct allegations can fall within one or more
categories, depending on the unique factors and circumstances associated with the event.
Additionally, the LMR specifies the type of misconduct through the application of
approximately 204 case codes it uses to determine discipline.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

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charge(s); any specific details regarding the case; the proposed disciplinary
or adverse action; and the rights to which the employee is entitled under
applicable laws, rules, or regulations. 14 The institution forwards a draft of
the proposal letter with the accompanying case file to HR staff-at one of six
BOP Regional Offices for review and comment. I;; The regional HR staff
reviews the case file to ensure that it supports the charges. In addition; the
staff reviews the proposal letter for accuracy of the charge; scrutinizes the
letter's content, format, and language; and identifies necessary
improvements or corrections. The institution HR staff revises the proposal
letter accordingly and forwards it toLMR staff for review.
The LMR staff performs a final review of the proposal letter, also
focusing on the accuracy and correctness of the stated charge, whether the
evidence supports the charge, andwhether the penalty proposed would be
defensible in a third-party review. The LMR sends the letter back to the
institution, where HR staff incorporates changes and finalizes the proposal
letter. The proposing official reviews the letter, signs it, and gives it to the
subject, who also reviews ,and signs the proposal letter. The proposal letter
states that the subject has 10 calendar days to respond orally or in writing
to the deciding official on proposed disciplinary actions and 15 days for
proposed adverse actions. These responses become part of the case file.
After the subject reviews and signs the proposal letter, it is forwarded
along with the case file to the deciding official for review. The deciding
official applies the relevant Douglas factors - MSPB guidance on selecting
reasonable and consistent penalties - and considers any verbal or written
response provided by the subject before determining and imposing the
penalty. The deciding official can only agree with or mitigate the penalty
documented in the proposal letter. The institution HR staff reviews similar
case histories for consistency, clarifies issues with the deciding official if
necessary, and prepares the decision letter, following the same review
process used for the proposal letter with the region and the LMR. The HR
staff at the institution, region, and the LMR should ensure that the reasons
for the imposed discipline are fully explained in the decision letter. This
]~ The term disciplinary action is used to describe proposed or imposed penalties
ranging from a Letter of Reprimand to suspensions of 14 clays or less (this does not include
an oral reprimand, which is defined as informal discipline). The term adverse action
encompasses penalties ranging from suspensions over 14 days to reductions in payor
grade to removal. An employee can only appeal adverse actions to t.he MSPB.
I:; HR st.aff at. t.he local and regional level refer to a gener;1l information and
guidance manual provided by t.he LMR known as "Paint-by-Numbers" for direction on
questions, scenarios, and t.emplates for formatting proposal and decision letters. This
manual is undergoing revision, which should be complet.ed by the fall of 2004.

U.S. Department. of Justice
Office of the Inspect.or General
Evaluation and Inspections Division

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explanation should include a full and complete discussion of the relevant
Douglas factors. Once the review process is completed, the deciding official
presents the decision letter containing the final decision, the penalty, and
the date the penalty begins to the subject for review and signature. The
decision letter also advises the subject at' actions available if the subject
believes that the proposed discipline js wrong or excessive (e.g., filing a
grievance or requesting arbitration).
Once the adjudicative phase is completed, the institution provides the
OIA with copies of the proposal and decision letters and the Standard Form
SF-50 (Notification of Personnel Action). if required for the penalty, for its.
investigative files. The Chief of OIA determines when to close the case file
officially and notifies the CEO when this occurs. 16
,

I

I

I'~

In FY 2003, the OIA closed 2,942 misconduct investigations involving
3,715 BOP subjects. 17 In these cases, allegations for 1,859 subjects were
sustained, while the allegations for the remaining 1,856 subjects were either
not sustained, determined Ito be unfounded, or administratively closed.
Table 1 shows the outcomes for subjects with sustained allegations.

'hS ustaine d A 11 egahons
Table 1: Outcomes f,or BO P Emp I oyees WIt
·PertaltyJmposed •• .:•.·····
Number of
Percentage.·ofTotal..··.·
Subjects
··.Subjects
Suspension
494
26.6
I
Written Reprimand
434
23.3
I
No Penaltv - No Action Taken
399
21.5
I
25/
Oral Reprimand
13.8
No Penaltv - Subiect Resizned
132
7.1
I
50
Removal
2.7
No Penaltv - Subject Retired
27
1.5
23
Other Type of Penalty (~ Last
L2
Chance Agreement or Settlement
Agreement)
!
20
Demotion
1.1
17
Combination of Penalties
0.9
4
No Penalty - Subiect Reassigned
0.2
Penalty Missing
2
0.1
I
.:
...
..
.
-.
.:
1,859
100.0
Totals
•••
I

Source: OIG analysis of BOP data

I (,

A flowchart of the BOP's disciplinary process is contained in Chart 1.

17

Some of these subjects may have been under investigation more than once.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

8

In vestigativc Phase

s

Cia" III arc reported in monthly
summary 10 OJi\.

( '1"" I & II arc reported
innncdiatcly 10 OJi\.

Q)

+'

VI
~

W.

~

C1l

....
......
~

....P..
....r.n
()

Ie allcg.uion is sust.rined. the case

IC .rllcgation

begins ;idjudicatioJl ph;lSe.

Adjudicative Phase
:::::::;:;:;:;:;:::::::;::

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;•. .:•: \:.:.:•:•:

:..:·,:
.:.:.·
... :.: ';.:.: :.::':.:

:::l:.:::
:.:::.:::.::::;:::;:::1:
.:.::::
;.. ..::;.:::1:
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:.. :.·::
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:..

i~

not sustained.

the disciplinary PJ"()CL':-<~ t'lld~.

Workload of BOP Staff Involved in D'isciplinary System
During FY 2003, according to OIA statistics, 4,193 investigations of
BOP employees were opened and 3,627 were closed.!" These statistics
include cases investigated by other Department entities (e.g .. the OIG, the
Federal Bureau of Investigation (FBI), the Civil Rights Division). The 4,193
opened cases represented an increase of 16 percent from the 3,629 cases
opened in FY 2002. Of the 4,193 cases opened in FY 200:?:
•

SIA/SIS investigators conducted 3,412 (81 percent) inves tigatioris ;"?

•

OIA investigators conducted 516 (12 percent) investigations, an
average of 32 per investigator, and also monitored an average of 213
local investigations per investigator; and
.

•

Other Department entities investigated the remaining 265 (6 percent)
cases.

In FY 2003, information involving 1,719 employees with sustained
misconduct allegations was forwarded through a BOP region and the LMR
for adjudication. This averaged 286 cases reviewed by HR staff at each of
the six BOP regions and approximately 156 cases reviewed by each LMR
Employee Relations Specialist.

lH

Of the 3,627 investigations closed in FY 2003, 2/)42 involved BOP employees.

l~ Of these cases, 2,118 were Classification Ill , for which a one-page summary of
the investigation is all that is required for the OIA file and case closure.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

10

PURPOSE, SCOPE, AND METHODOLOGY

Purpose
The OIG conducted this review to assess the BOP's disciplinary
system. Specifically, we reviewed whether BOP employees properly reported
misconduct; whether investigations were thorough; and whether
disciplinary actions were reasonable" consistent, and timely.

Scope
We reviewed all BOP employee misconduct cases that were opened or
closed in FY 2003. We did not review cases involving contract/halfway
house employees, employees at private correctional facilities under contract
to the BOP, state or local employees at facilities with a BOP
Intergovernmental Agreem\ent, and Public Health Service employees working
at BOP facilities.v?

Methodology
Site Visits. We visited the Federal Correctional Institution (FCl) and

Federal Medical Center (FMC) in Butner, North Carolina, and the FCI in
Petersburg, Virginia. At these institutions, we interviewed CEOs (i.e., the
Wardens), Employee Relations Specialists, SIS/SIA investigators, and a
number of supervisors who acted as proposing officials for disciplinary
actions in FY 2003.
Interviews. We conducted interviews with r-fficials in the BOP
Central Office, Regional Offices, and institutions. In the BOP Central Office,
we interviewed the Director of the Human Resources Management Division
(HRM), the Chief and the two Supervisory Special Agents in the OIA, and the
Chief and Deputy Chief of the Labor Management Relations and Security
Branch. In addition to an on-site interview with the Human Resource
Administrator of the Mid-Atlantic Regional Office in Annapolis Junction,
Maryland, we interviewed by telephone the Human Resource Administrators
in the BOP's other five regions and members of the HR staff in 12
institutions (2 institutions from each of the 6 regions that had the highest
number of allegations of employee misconduct in FY 2003). We also
:W Intergovernmental Agreements are essentially contracts that the BOP enters into
with state and local governments to house BOP inmates in their correctional facilities.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

11

interviewed Special Agents and Program Analysts in the OIG's Investigations
Division.
Sample Review. From misconduct investigations involving BOP
employees closed in FY 2003, we randomly selected 100 cases for review 50 Classification I cases, 30 Classification II cases, and 20 Classification III
cases. Of these 100 cases, we were able to' review the OIA or local BOP
investigative reports for 85 cases.>' These 85 cases included 206 subjects.
We reviewed the investigative files for these 85 cases as well as documents
in related disciplinary files of subjects with sustained allegations. An OIG
Special Agent also reviewed the investigative case files to assess their
thoroughness.
Data. The BOP provided us with data from the LAWPACK database,
maintained by the OIA, which contained information on the reporting and
investigation of alleged employee misconduct, the conclusion of these
investigations, and the discipline imposed. The OIA enters and tracks
misconduct allegation and related case file information in LAWPACK.
LAWPACK, which the OIA has used since October 2000, contains data
regarding the allegation, the subject of the allegation, and case disposition.
We used LAWPACK data to analyze the investigations of employee
misconduct, including the timeliness of reporting allegations to the proper
authorities, the disposition of the investigations, and the consistency of
disciplinary actions based on various factors, such as job series or gender.

The BOP also provided us with information regarding the misconduct
cases as they proceed through the adjudicative phase. We used this
information, including the charges, the case codes, and the proposed and
final discipline, to analyze the adjudication of the disciplinary cases,
including the timeliness of issuing proposal and decision letters and any
changes that were made in the proposed discipline from the proposal to the
decision letter.
We also reviewed BOP program statements and manuals regarding
the disciplinary system; OIA annual reports; OIG Investigations Division
data relating to the BOP's disciplinary system; previous OIG and BOP
reports about discipline; and federal and departmentwide laws and
regulations applicable to disciplinary systems.

21 We did not review 13 of the 85 cases because they were investigated by the OIG
or the FBI, 1 case because it was adrnirustr atively closed, and 1 case because the subject
was not a BOP employee.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

12

Surveys. We conducted an e-mail survey of a random sample of BOP
employees to determine their experience with and perception of the BOP's
disciplinary system. Of the approximately 33,600 BOP employees, we sent
surveys to 441 and received 275 responses. Appendix II contains,
confidence intervals regarding these responses. In choosing the
respondents' comments included in the body of this report, we chose those
that were the most representative of the opinions expressed by the
respondents.

We also sent an e-mail survey to CEOs who served as deciding
officials in FY 2003 to obtain their views of the disciplinary system. Of the
95 individuals we surveyed, 63 responded.

all

Finally, we surveyed
18 OlA investigators bye-mail for their
assessment of the investigative phase, including their workload, the
monitoring of local investigations, and their training needs. All 18 OlA
investigators responded to our survey.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

13

r

RESULTS OF THE REVIEW

INVESTIGATIONS OF EMPLOYEE MISCONDUCT
We found that BOP employees did not report all employee
misconduct
as required.
' However,
when
alleged
misconduct was reported, our review found that BOP
investigations of employee misconduct were thorough.
BOP employees failed to report employee misconduct. The BOP's
Standards of Employee Conduct (Program Statement 3420.09) require that
employees "Immediately report to their CEOs, or other appropriate
authorities, such as the Office of Internal Affairs or the Inspector General's
Office, any violation or apparent violation of these standards." In our e-mail
survey of BOP employees, almost 92 percent of the respondents said that
they had read the Standards of Employee Conduct and 96 percent said that
they were aware of the BOP's requirements for reporting employee
misconduct.v- However, 'of the respondents who said they had witnessed
employee misconduct, 41 percent stated that they did not always report this
misconduct to the proper authorities. Sixty-six percent reported that they
did not believe that their fellow employees always reported misconduct.

One case in our sample of investigative files involved a Warden who
did not report an allegation of misconduct. According to the BOP's Program
Statement 1210.24, "Upon becoming aware of any [emphasis added]
possible violation of the Standards of Employee Conduct, the CEO ... is to
report the violation to OIA." The OIA received an anonymous complaint
alleging that a BOP employee was selling prescription drugs at the
institution and that the Warden was aware of the allegation but never
referred it to the OIA as required. Instead, the Warden directed SIS staff to
make the case an "informational file." The 01A opened a Classification I
investigation regarding the sale of the prescription drugs and subsequently
charged the Warden with Failure to Report Misconduct. The 01A
investigation revealed that the Warden had been notified of the allegation
but did not refer it to the OIA. The Warden stated in his affidavit, "based on
my interpretation and review of all documentation, it was my decision to
refer the case back to the SIA office as an information file ... I believe I was
acting within the scope of my position ... .' The OlA investigation found
22 BOP employees are required to sign the Standards of Employee Misconduct when
they begin employment with the BOP. In addition, employees sign these standards every
time that they are updated and also receive annual training on the standards.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

14

insufficient evidence to support the allegations against the staff member or
the Warden and stated that his decision not to refer the case "was a
Judgement call' on his part [and] was within the scope of the Warden's
position." However, the scope of the Warden's authority to make such
judgment calls is not defined in any BOP policy.
In this case, the OIA's decision that the Warden could use his
judgment violated its own policy that "any possible violation" be reported to
the OIA. This is illustrated by the fact that the Warden determined that this
case did not meet even Classification III reporting criteria (as evidenced by
his not including the case in the monthly report to OIA), while the OIA: later
assigned it Classification I status.
BOP investigations of employee misconduct were thorough. An
OIG Special Agent reviewed a random sample of 85 investigative files and
found that local investigations, which are reviewed by the CEO and the OIA
before closure, and OIA investigations were thorough. The OIG Special
Agent concluded that the allegations were properly classified, that the BOP
investigator interviewed relevant witnesses and examined the necessary
documents, and that the investigative report contained the information
necessary to understand the actions taken during the investigation. The
OIG Special Agent agreed with the investigators' conclusions regarding
whether the allegations should or should not be sustained and rated the 85
investigations as either "very good" or "good."

We also surveyed OIA investigators, deciding officials, and BOP
employees for their opinions of misconduct investigations. We surveyed OIA
investigators to obtain their opinions of the quality of local investigative
reports because they monitor and review local investigations completed at
the institutions. Seventy-eight percent of OIA investigators responded that
local investigative reports were of "very good" or "good" quality (Chart 2).
Chart 2: OIA Investigators' Opinions of Quality of Local Investigative Reports

60_
80

40

20

o
Very Good

Good

Falf

Poor

Source: OIG analysis of OIA Investigator Survey
U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

15

We surveyed deciding officials to obtain their opinions on the quality
of both OlA and local investigative reports. The majority of the respondents
rated the quality of the investigative reports as either "very good" or "good,"
as shown in Chart 3. More than 96 percent thought the quality of, OlA
reports was either "very good" or "good," while 89 percent believed that local
reports were "very good" or "good."
, "

Chart 3: Deciding Officials' Opinions of Quality of OIA and Local Investigative Reports

···:T···II~~~

601···..

50
40
30
20

o OIA investigations
IELocal investigations

10

o
Good

Fair

Poor

Source: OIG analysis of Deciding Official Survey

We also surveyed BOP employees to obtain their perceptions
regarding the quality of investigations and found that their perceptions were
slightly less positive than the alA investigators' and deciding officials'
opinions. Seventy-four percent (100 of 136) of the respondents who stated
that they were involved in or aware of an investigation believed that the
investigations were thorough. The 26 percent (36 of 136) who did not
believe that the investigations were thorough included such responses as:
•

"Some employees who should be interviewed are not interviewed; each
investigator has his/her own idea of what is and what is not
important."

•

"[Investigators] don't always inves tigate all pertinent areas and/ or
question employees that were involved and have a lot of input."
"Now it appears [the investigators] just get what information they need
for a quick completion instead of being thorough without regard to the
factual outcome of the investigation."

•

"Personnel are required to fill out affidavits in some investigations
while memo's [sic] will suffice in others. Paperwork is not filled out
correctly, leaving loopholes."

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

16

We partly attribute the high ratings of the quality of BOP
investigations to the OIA's monitoring of local investigations, which provides
a centralized level of review. We found that this monitoring helped to
ensure that the investigations were thorough and supported the
investigators' conclusions. For example, 17 of the 18 OIA investigators
stated that they had disagreed with a local investigator's conclusion at one
time or another. When this occurred, the OlA investigators said that they
asked the local investigators to interview additional witnesses, review
pertinent BOP policies, or gather more information until the OIA investigator
believed that the investigation strongly supported the conclusion.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

17

REASONABLENESS OF THE DISCIPLINARY SYSTEM
BOP disciplinary decisions sometimes did not appear
reasonable.
For some cases with serious sustained
allegations, the CEOs unilaterally took no disciplinary
action or imposed informal discipline without fully
adjudicating the cases or documenting their reasons for
taking these actions.
In other cases, in their role as
deciding officials, CEOs mitigated proposed discipline
without adequately explatrring their reasons in the decision
letter as required. Further, the CEOs can influence local
investigative reports for cases in which they also will act as
the deciding officials, creating the potential for outcomes
that are not reasonable. We also found that disciplinary
files lacked the required documentation and that the BOP's
table of offenses, while specific to the mission of the BOP,
provided a range of penalties too broad to be useful.
Disciplinary decisions sometimes did not appear reasonable.
Disciplinary penalties should be commensurate with the level and type of
misconduct committed, while considering the relevant factors involved in
the case. To assess whether the BOP imposed reasonable penalties, we
reviewed case files for the 206 subjects in our sample of 85 cases. Of the
206 subjects, the investigations sustained allegations for 92 subjects (45
percent), did not sustain the allegations for III subjects (54 percent), and
found that allegations for 3 subjects (1 percent) were unfounded.v-

We reviewed the case files for the 114 subjects for whom the
allegations either were not sustained or were unfounded and determined
that the investigations' conclusions were reasonable. For the 92 subjects
for whom the allegations were sustained, we determined that the outcomes
for 36 (39 percent) of the subjects also were reasonable, based on our review
of the documentation in the case files.
The outcomes did not appear reasonable for the remaining 56 of 92
(61 percent) subjects. First, the CEOs imposed either informal or no
discipline for 20 subjects with sustained Classification I or II allegations
without formally adjudicating the cases. Classification I and II allegations
are generally serious and therefore we would expect formal discipline to be
2:, According to the OIA Chief, an allegation is not sustained if there is not a
preponderance of evidence to support the allegation. An allegation is unfounded if there is
no evidence to support the allegation and either the evidence contradicts the allegation or
the allegation is preposterous.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

18

imposed. Further, the CEOs did not document their, reasons for their
decisions in these cases. For the remaining 36 subjects, the disciplinary
proposal appeared commensurate with the sustained charges. However,
the deciding officials mitigated the proposed discipline without adequately
documenting their reasons. The mitigated discipline no longer appeared
commensurate with the sustained allegations. We discuss these two
reasons in greater detail in the following paragraphs.'
CEOs either imposed informal discipline or took no disciplinarv action
for some subjects charged with serious allegations. Our sample identified
20 subjects with sustained allegations in the more serious Classification I
and II categories for whom the CEO either imposed informal discipline or
took no action without fully adjudicating the case or documenting the
reasons for: their decisions (see Table 2). Therefore, the CEOs' decisions to
impose informal discipline or take no action in these serious cases did not
appear to be reasonable out~omes.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

19

Table 2: Subjects Whose Cases Did Not Go T'hrough the Full
Adjudicative Phase
Suhie ct : Classification
1
1
!
1
2
3

1

4

1

5

1

I
6

1

7

1

8

1

9

1

10

1

11

1

12

1

13

2

14

2

15

2

16

2

17

2

18

2

19
20

2
2

I

Sustained Charges
i Dfsclplrne
Failure to Follow Policy
No Action
Falsification of Government
Oral Reprimand
.,
Documents
Falsification of Government
I, Oral Reprimand
Documents
I'
Falsification of Government
I Oral Reprimand
Documents
I
Falsification of Government
Oral Reprimand
Documents
Falsification of Government
Oral Reprimand
Documents
I
Falsification of Government
Oral Reprimand
Documents
Falsification of Government
Oral Reprimand
Documents
Falsification of Government
Oral Reprimand
Documents
Falsification of Government
Oral Reprimand
Documents
Falsification of Government
Oral Reprimand
Documents
I
Unprofessional Conduct of a
No Action
Sexual Nature; Theft/Misuse of
Government E£C?.P_~t1. ___.___._. ____--.:.... 1-Accepting Anything of Value from
No Action
an Inmate .----". --.
"-- ...'-"'-.-.. .-_. _._------ -_._--------Accepting Anything of Value from
No Action
an Inmate
Breach of Security; Failure to
Oral Reprimand
Follow Policy
Breach of Security; Failure to
I Oral Reprimand
Follow Policy
I
Breach of Security; Failure to
Oral Reprimand
Follow Policv . ----------- ----- . ._-._-Endangering the Safety of Others;
Oral Reprimand
Unprofessional Conduct
Inattention to Duty ._- --- .... ._ .._"--_.- ---- No Action
Oral Reprimand
Unprofessional Conduct
-

-..

. _ . _ •••.• ___w, ••

---

Source: OIC Analysis of BOP Investigative Files

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

20

The cases for these 20 subjects were not fully adjudicated. We found
no proposal letters to indicate that the cases for these 20 subjects were
reviewed and approved by proposing officials, and institutional, regional,
and LMR staff. Moreover, we found decision letters for only four subjects.
These decision letters did not indicate that the subject received a proposal
letter, and did not include the CEO's rationale for imposing informal
discipline or taking no acticn.> These elements of the adjudicative phase
are necessary as they collectively serve as checks and balances to ensure
that imposed discipline is reasonable. Below are two case examples from
our s a m p l e . ' "
Case Example 1: An OIA investigation into a Classification I allegation
foundthat a BOP Correctional Treatment Specialist had made
comments of a sexual riatureto a' department head and had removed
government property from the institution for her personal use.
Charges of Unprofessional Conduct of a Sexual Nature and
Unauthorized Removal of Government Property for Personal Use were
sustained against the employee. Neither the investigative file nor the
disciplinary file contained a proposal or decision letter to document
that this case was properly adjudicated. In addition, the investigative
file stated that "The warden elected not to take any disciplinary action
against [the employee]" without any explanation. Given the serious
nature of the charges, the decision on the part of the Warden not to
take action without fully adjudicating the case does not appear
reasonable.
Case Example 2: A local investigation of a Classification II allegation
found that a BOP correctional officer gave his knife to an inmate in
the institution. After a supervisor confiscated the knife from the
inmate, he returned it to the correctional officer rather than holding it
as evidence for an investigation. A 5-day suspension for Introduction
of Contraband and Giving an Inmate an Unauthorized Item was
proposed, and the correctional officer received a Letter of Reprimand,
which seemed reasonable according to the mitigating factors
discussed in the decision letter. With regard to the supervisor,
investigators sustained an allegation of Inattention to Duty. However,
no proposal or decision letter was in the investigative or disciplinary
file to document that the supervisor's case was properly adjudicated.
Instead, documentation in the investigative file showed that "the
2'1 According to guidance from the LMR, a decision letter stating that the deciding
official has chosen to take no action should read, "This is to notify you that I will not take
any action on the notice of proposed disciplinary action [erriphas is added] which you
received on [date]."

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

21

Warden elected to take no action against [the supervisor]" without any
explanation for his reasons.
In our discussions with HR staff at the institutions, the HR staff
stated that the CEOs sometimes took no disciplinary action or imposed
informal discipline without forwarding the case through the full adjudicative
phase because they believed the misconduct was not serious enough to
impose formal discipline. When we asked an LMR official about whether the
CEOs could bypass the adjudicative phase, she stated that she would not
know if this occurred because LMR only reviewed cases when the institution
wanted to take disciplinary action. She further stated that there is no BQP
policy stating that all sustained allegations must go through the
adjudicative phase, and that deciding officials should have some latitude in
making disciplinary decisions:
I

I ' \,

In other Department disciplinary systems reviewed by the OIG,
deciding officials were not involved in the disciplinary process until the
proposing official had issued the proposal letter to the subject.v" However,
in the BOP, this is not the case. The deciding officials, in their capacity as
the CEOs, review the investigative report before the proposing official and
therefore have the opportunity not to forward the investigative case file to
HR for adjudication. Under the BOP's procedures, the CEO can impose
informal discipline or take no action after reading an investigative report
with sustained allegations, bypassing the proposing official and the full
adjudicative phase, as evidenced by the 20 subjects in our sample. In
effect, the CEO acts unilaterally and without the formal recommendations of
the proposing official, and institutional, regional, or LMR staff. When the
CEO determines that certain cases should not be fully adjudicated, these
cases are not subjected to the checks and balances to ensure
reasonableness that are inherent in having independent investigative and
adjudicative phases.
Deciding officials mitigated the proposed penalties without adequately
explaining their reasons for the mitigation in the decision letters. We
.determined that deciding officials mitigated penalties for 36 subjects in our
sample without adequate explanation in the decision letters. Based on the
documentation in the investigative files and the proposal letters, the
proposed penalties seemed reasonable. However, the mitigated imposed
penalties did not appear reasonable because they lacked adequate
explanation in the decision letters. The lack of documentation in the
25 See Review of the United States Marshals Service Discipline Process, Report No. 12001-011, September 2001, and Review ofth.e Drug Enforcement Administration's
Disciplinary System, Report Number 1-2004-002, January 2004.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

22

decision letters is not in compliance with Title 5, Cede of Federal
Regulations, Part 752, which states that agencies must maintain "the notice
of decision and reasons therefore." In addition, according to guidance from
the BOP's LMR:
In all decision letters, always include a full and complete
discussion of all relevant Douglas factors ... If the penalty in the
proposal is mitigated (lessened), you must make some
indication in the decision of the reasons why. In all cases,
provide a full discussion of all of the relevant Douglas
factors in the decision letter.
Below are two case examples from our sample in which the deciding
official mitigated the proposed discipline without sufficiently explaining the
reason in the decision letter.

Case Example 1: An OIA investigation found that a BOP employee hit
an inmate and failed to disclose this information during his initial
interview with OIA investigators. Therefore, allegations of Physical
Abuse of an Inmate and Providing a False Statement were sustained
against the employee. The proposing official proposed that the
employee be removed. Based on information contained in the
investigative file and the proposal letter, the proposed penalty seemed
reasonable. However, the deciding official chose instead to demote
the employee. A review of the deciding official's consideration of the
Douglas factors in the decision letter did not explain why he mitigated
the penalty. For each Douglas factor mentioned in the decision letter,
the deciding official described reasons not to mitigate the penalty. The
deciding official wrote:
When considering what penalty was appropriate,
considered, among other factors: (a) charges of Physical
Abuse of an Inmate and Providing Conflicting Information
are very serious charges in light of your current position as a
supervisor who commonly needs to work with a great
amount of autonomy and who has management oversight
and guidance responsibilities to subordinate correctional
services staff and inmates, (b) your position as a federal law
enforcement officer requires that your actions be above
reproach and that you forthrightly answer questions
presented to you by agency officials, (c) while your past work
record has been acceptable, it does not shield your very
serious breach of trust, (d) while you have no prior
disciplinary record and have demonstrated some degree of
U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

23

remorse, your misconduct is so serious as to warrant a
substantial penalty, (e) your misconduct has caused serious
damage to your superior's confidence in your ability to do
your current job, (f) the penalty is consistent with the
agency's table of penalties, (g) you were aware of the
applicable policy and procedures as we train staff in the
Employee Code of Conduct and the Use of Force policies
immediately upon entrance on du ty and annually thereafter,
(h) while you mayor may not have been first provoked by the
inmate's spitting upon you; you had the staffing resources
immediately available to you to use a lesser degree and form
of force (~ you could have simply turned the inmate's face
away from you), (i) alternative sanctions were considered,
but I concluded that they would not have had the desired
corrective effect.
In fact, the deciding official wrote, "I believe that either of the [two]
sustained charges would normally warrant removal by themselves." The
deciding official did not explain the decision to demote, rather than remove,
the employee. In this case, the decision to demote the employee did not
appear reasonable, given the seriousness of the charges.
Case Example 2: Iri another OIA investigation, an employee was
found to have committed misconduct when he used physical force on
an inmate but did not report it, and later provided a false statement
about the incident to investigators. The OlA investigation sustained
charges of Failure to Follow Policy and Providing a False Statement.
The proposing official proposed a 5-day suspension, but the deciding
official took no disciplinary action. The decision letter contained no
reason for the decision. It read in total, "This is to notify you that I
will not take any action on the notice of proposed disciplinary action
which you received."

We also found that LMR staff involved in the disciplinary process
believed that in certain cases the proposed discipline should not have been
mitigated. In one case involving the failure of the subject to respond to an
emergency, the deciding official mitigated the proposed discipline from a 7day suspension to a Letter of Reprimand. The LMR staff member reviewing
the case wrote the following comments:
I will approve the letter but I have concerns ... [The subject] did
not express remorse, did not apologize and didn't offer written
response. He's also been disciplined before. Why would it be
mitigated? This is a serious problem.
U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

24

Another case involved a subject charged with being Absent Without
Leave. The proposing official proposed a 3-day suspension, but the deciding
official gave the subject a Letter of Reprimand. Information obtained from
LMR showed that the LMR staff member noted "concerns on why they went
from three day suspension to a letter of reprimand, [but] was told that was
what the Warden wanted."
Overall, in FY 2003, 63 percent of all discipline was mitigated from
what the proposing official proposed. While a reduction in the proposed
discipline may be reasonable based on other evidence or mitigating
circumstances described in the employee's oral or written statement (if
supplied), it is essential that the deciding official document the reasons .for
mitigation in the decision letter, as required.
The CEOs can influence local investigative reports for cases in
which they also will act as the deciding officials, creating the potential
for outcomes that are not reasonable. The BOP's disciplinary system
requires the CEOs, in their role as administrators, to review and approve
local investigations before they are forwarded to the Ol A for its review. The
CEOs whom we surveyed stated that if a report did not contain the
necessary information or if they disagreed with an investigation's
conclusion, they would ask the investigators to investigate further. Further,
some CEOs stated that when they disagreed with an investigation's
conclusion, they changed the investigator's findings or took no disciplinary
action. Because the CEOs review and have the opportunity to influence the
content and conclusions of the investigative reports during the investigative
phase and then act as the deciding official in the adjudicative phase, the
independence of the investigative and adjudicative phases, which helps to
ensure that disciplinary outcomes are reasonable, can be compromised.
Disciplinary files lacked required documentation. As mentioned
earlier, our sample included 20 subjects for whom the deciding official
either imposed informal discipline or took no action and the disciplinary file
was missing the proposal letter, the decision letter, or both. We reviewed
the disciplinary files for the remaining 72 subjects in our sample with
sustained allegations and found that some of these files also did not contain
the required documentation. According to Title 5, Code of Federal
Regulations, Part 752:

Copies of the notice of proposed action, the answer of the
employee if written, a summary thereof if made orally, the
notice of decision and reasons therefore, and any order affecting

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

25

the suspension, together with any supporting material, shall be
maintained by the agency.... '26
'
During our review, we asked the BOP to provide us with the following
documents from the disciplinary file for the 92 subjects with sustained
allegations: 1) proposal letter; 2) employee's written response, if applicable;
3) summary of employee's oral response, if applicable; 4) decision letter; and
5) documentation of imposed discipline. '27 We found that the proposal letter
was missing for 28 (30 percent) subjects, and the decision letter was
missing for 20 (22 percent) subjects. Documentation of imposed discipline
was missing in four cases (Table 3).
Table 3: Documentation Missing from D'iscipfinar- Files

Total (92)

. ...

I

28

i

20

4

Source: OIG analysis of BOP investigative files

We also examined whether the written or oral response of the subject
was maintained in the files, as these typically contain the reasons why a
deciding official would choose to mitigate the proposed penalty. Fifty-six
subjects chose to give an oral response; 8 (14 percent) of the oral summaries
were missing from the case file. Fourteen subjects chose to give a written
response; 4 (29 percent) were missing. When required documentation
explaining the reasons for the discipline imposed is not included in the case
file, it is not possible to determine if the discipline is reasonable.
26 The statutory requirements for documentation of disciplinary actions are found
in Section 7503(c) and for adverse actions in Section 7Sl3(e).
27 For our review, documentation of imposed discipline included either the SF-50 or
the Letter of Reprimand. The SF-50 is used to document disciplinary or adverse actions
imposed as a result of sustained misconduct. While federal policy requires that the SF-50
be maintained, in cases of Letters of Reprimand the only proof that the employee was
disciplined is the actual letter. Therefore, for this analysis we included the Letter of
Reprimand as documentation of imposed discipline.

U.S. De partment of Justice
Office of the Inspector General
Evaluation and Inspections Division

26

. The table of offenses does not provide enough guidance to
determine reasonable discipline. The table of offenses, while specific to
the mission of the BOP, included a broad range of penalties that do not
provide enough guidance for proposing and deciding officials to determine
reasonable discipline. The BOP's table of offenses was last revised in 1999
and currently is being updated. It contains 54 offense categories that are
specific to the BOP's mission of protecting 'society by confining offenders in
appropriate facilities. These offense categories include:

•

Physical abuse of an inmate; .'

•

Acceptance of any gift or favor from an inmate or former inmate;

•

Preferential treatment of inmates; 'I.

•

Loss of temper in the presence of inmates, former inmates, their
families or friends; and

•

Improper relationship with inmates, former inmates, their families or
friends.
.

The penalty range for a first offense for 41 of these 54 (76
percent) offense categories is "official reprimand to removal." This
range essentially encompasses every type of formal discipline possible
and is so broad that it gives the proposing and deciding officials no
guidance in determining a reasonable penalty.
Survey of BOP employees on discipline. Our e-mail survey of a
random sample of 275 BOP employees indicated that 74 percent of
respondents who stated that they were aware of employee misconduct
investigations that resulted in discipline believed that the discipline was
appropriate, while 26 percent believed it was not appropriate. We found
that 17 percent of the respondents stated that the discipline imposed was
too lenient.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

27

CONSISTENCY OF THE DISCIPLINARY SYSTEM
We found that the BOP does not ensure that discipline is
imposed consistently BOP-wide because BOP guidance
instructs that similar penalties be imposed for similar
misconduct only by the current CEOs within their
institutions.
Consequently, employees at different
institutions, or at the same institution with different CEOs,
can receive different discipline for similar misconduct and
circumstances. We were unable' to measure the consistency
of discipline imposed when comparing similar misconduct
BOP-wide. Finally, although our survey found that many
BOP employees believed that an employee's grade level, job
series, gender, or race affected, the imposed discipline, our
analysis of BOP data did not substantiate that the
disciplinary process was affected by these characteristics.

An equitable disciplinary system should ensure that employees
receive substantially similar discipline for similar misconduct under similar
circumstances. However, BOP guidance states that CEOs, when acting as
deciding officials, should be consistent with their own prior decisions at the
same institution. This guidance advises BOP managers on how to select.
appropriate discipline, avoid the appearance of disparate treatment, and
impose consistent penalties:
Naturally, the law does not require rigid, mathematical
application of penalties. However, it is presumed that like
penalties will be imposed in like cases.
Accordingly, for
purposes of disparate treatment and consistericy of the penalty
analysis, the mere [fact] that employees were involved in similar
misconduct yet received different penalties is insufficient to
prove disparate treatment. The charges and circumstances
surrounding the misconduct should be substantially similar.
Generally, this means that: the offenses must occur within the
same component of the agency that initiated the action ~
look to offenses within the same institution or within the same
regional office; the offenses should be compared among those
occupying relatively similar positions of trust and responsibility,
e.g. , where the wrongdoer is a supervisor, look at other
supervisors' misconduct; the penalties were imposed by the

same decision maker, ~ the same CEO, not the former us.
current CEO [emphasis added].

U.S. Department of Justice
Office of the Inspector General
Evaluationand Inspections Division

28

Therefore, the BOP does not require consistency of disciplinary decisions
BOP-wide or even between a current and former CEO at the same
institution.
LMR staff told us that imposing consistent discipline is only required
of the current CEO at each facility because that is what is .necessary for
imposed discipline to be deemed defensible if the subject' appeals or grieves
the decision to a third party. According to the MSPB:
To prove a disparate treatment claim with regard to the penalty
of an act of misconduct, an appellant must show that a
similarly situated employee received a different penalty... . The
comparator employee must be in the same work unit. .. must
have. the same supervisors... and the misconduct must be
substantially similar.w
Because the MSPB only requires consistency if "comparison
employees were similarly situated within the same supervisory unit," BOP
management stated that consistency of disciplinary decisions is only
necessary for each CEO and not for the entire BOP. Consequently, two
similarly situated subjects who committed similar misconduct under similar
circumstances at different institutions of the same security level could
receive different penalties because the subjects had different CEOs.
Therefore, the CEOs at each of the BOP's 113 institutions, 6 Regional
Offices, 28 community corrections offices, 2 staff training centers, and 1
Central Office may impose different discipline for similar misconduct and
circumstances, as long as their disciplinary decisions are·consistent with
their prior decisions at the same institution.
We found that BOP Wardens are assigned to an institution for an
average of 29 months. Consequently, when a new CEO is assigned to an
institution, a new standard is adopted for determining consistent discipline.
Several of the HR staff we interviewed stated that when a newly appointed
CEO did not have an established disciplinary record, they reviewed
discipline imposed by former CEOs at the institution to ensure some level of
consistency, although such reviews are not required by the BOP.
Some regional HR staff stated that they reviewed disciplinary cases
across the region in an attempt to ensure consistency and continuity.
However, the regions did not have a systematic process for such reviews and
did not always use reliable information to check for consistency. While
2H

Wentz u. United States Postal Service, 91 MSPR 176, 187 (March 13, 2002).

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

29

some regions reviewed logbooks or databases, other regions relied on the
historical knowledge of the HR staff. One region did not check for
consistency across the region at all. In addition, although the LMR reviewed
and approved all disciplinary and adverse action case files and related
letters, it did not specifically review the penalties for consistency BOP-wide.
Therefore, even though the regions and the LMR review alldisciplinary
cases and could check for consistency by region and BOP-wide, they do not.
We attempted to determine the consistency of discipline imposed
BOP-wide for similar charges in our sample of 85 cases.v? However, our
sample did not include a sufficient number of cases with similar charges
and circumstances to perform this type of consistency analysis.
One case from our sample did raise questions about the consistency
of the penalties imposed. The case involved an OIA investigation into the
escape of an inmate from a hospital and included 24 subjects, the majority
of whom were correctional officers investigated for the same charges Failure to Follow Policy and Breach of Security.w The OlA sustained the
charges for all 24 subjects. The proposing official proposed discipline
ranging from a 4-day suspension to an I8-day suspension. Based on the
explanations provided in each proposallerter, the range of proposals
appeared reasonable.
We expected that the discipline imposed by the deciding official
similarly would vary. First, each subject had a different number of
specifications for each charge of misconduct, which was reflected in the
range of days of suspension described in the proposal letter. Second, three
subjects had prior discipline, which the proposing official asked the deciding
official to consider when making a decision. Finally, the decision letters for
the 24 subjects mentioned four different mitigating factors that should have
affected the penalty.>' Nine decision letters mentioned two mitigating
29 In this review we examined two dimensions of consistency: 1) consistency of
disciplinary outcomes by type of misconduct, and 2) consistency of the disciplinary process
by selected job demographic and job characteristics. Our analysis of the second type of
consistency is found on page 33.

:10 The investigation had a total of 27 subjects, but 2 of t.he subjects were charged
with different offenses and 1 subject's disciplinary file could not be located. These three
subjects were not included in our analysis.
31 The mitigating factors mentioned in the decision letters included the subject's
commitment to following post orders, the subject's acknowledgment of the seriousness of
his or her behavior, the subject's length of employment with the BOP, and whether it was
the subject's first disciplinary offense.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

30

factors, while the remaining 15 letters cited three mitigating factors.
However, the deciding official issued a Letter of Reprimand to all 24
subjects, and the decision letters did not clearly explain why proposed
suspensions of varied lengths were mitigated to the same penalty. Absent
any explanation, we concluded that the deciding official did not apply
consistent discipline in this case.
Many BOP employees believed that discipline was not consistent.
We found that approximately 60 pe~~ent of the respondents to our e-mail
survey believed that employees did not receive similar treatment in the
disciplinary process based on their job title or grade level. Approximately 43
percent of respondents believed that employees did not receive similar
treatment based on gender or race. Table 4 shows the percentage of
respondents who believed that BOP employees .were treated differently
according to certain demographic and job characteristics.
Table 4: Percentage of Emplo ee Responses
Do you believe that BOP employees receive similar
.
treatment throughout the discipline process,
re> ar<;ilessoftl1eii:> .
..
Job title
Gradelevel .
Gender
Race

40.4
40.4
57.0
56.6

59.6
59.6
43.0
43.4

Source:

We asked respondents to explain why they believed employees were
not treated consistently by job title, grade level, gender, or race. Generally,
respondents believed that employees who were higher-graded, noncorrectional officers, white, or male received more favorable treatment than
other BOP employees. Employees specifically stated that Wardens were not
consistent in how they imposed discipline:
•

"I think there is a lot of inconsistencies within the CEO ranks. Some
are harsh, some are just too lenient."

•

"The Warden does not follow a fair pattern."

•

"Each Warden works differently: Some me too harsh and others too
lenient. "

•

"There [sic] has been a couple [of cases] where there wasn't discipline,
and I felt should have been. Therefore, the discipline imposed does
not seem consistent."

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

31

•

"There is no consistency with penalties to offenses. One person will
get a slap on the hand while another will get fired for the same
offense."

Twenty-five employees also stated that favoritism on the part of
management influenced discipline and that deciding officials used their
discretion to impose discipline improperly. Examples of their comments
are:
•

"The Warden at this institutionpicks and chooses who will or will not
be disciplined."

•

"There is rampant favortism [sic] throughout the BOP. This is still the
'Good Ole Boy' system."
I

•

'\,

"If you play golf with the Warden, your treatment will be different. If

you are one of the good ole boys, your treatment will be different."
•

"I think that it depends on who the person is and how well that
person is liked by the people in ... higher positions."

Seventeen employees said that discipline is inconsistently imposed
because higher-level employees are able to transfer or retire rather than
receive discipline, and several respondents stated that some subjects are
actually promoted after they commit misconduct. A phrase several
respondents cited was, "If you mess up, you move up." Some responses
included:
•

"Supervisors or executives are often reassigned or promoted instead of
being disciplined."

•

"With regard to staff in higher positions or grade levels, many staff get
alternatives to discipline like retire or reassignment rather than face
sanctions."

•

"I believe that at the higher title or grade levels, an employee gets off
much easier by a job move or dismissing the charge."

•

Wardens, A[ssociate] Wjarden]s , and other exec[utive] staff may be
moved because of misconduct but they are not fired. I have known
them to move to different 'made up' jobs and retain their pay."

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

32

BOP data did not substantiate that the disciplinary process was
affected by grade level, job series, gender, or race. Although
respondents to our survey believed that BOP employees were treated
differently in the disciplinary process by job series, grade level, gender or
race, our analysis of the BOP data did not support this belief. We compared
LAWPACK data to BOP population data to determine whether job series,
grade level, gender, or race affected the disciplinary process.v- To determine
whether differences existed for the four characteristics, we, compared the
proportion of employees who were investigated, the proportion of employees
with sustained allegations, and the proportion of employees who were
disciplined. Our analysis did not substantiate that the four characteristics
affected the disciplinary process.

Data regarding grade level. The data did not show that grade level
was a factor in the disciplinary process. We found that approximately the
same proportion of employees at lower grade levels (2 through 12) were
subjects of investigations as employees at higher grade levels (13 and
above). For closed investigations in FY 2003, 11.0 percent of employees at
grade levels 2 through 8, 10.7 percent of employees at grade levels 9
through 12, and 8.9 percent of employees at grade levels 13 and above were
subjects of investigations. We also found that nearly the same proportion of
employees in the three segments of grade levels had allegations that were
sustained, and had sustained allegations that resulted in discipline (Table
5).:1:3 This data did not indicate to us that grade level affected the
disciplinary process.
Table 5. Effect of Grade Level on the Df scip linar- Process

I

GRADE< ..
·:·,,:.··LEVEL··.
Gracle2··~··8·.

. ... .. . . ...EmployeesTh~t
Employees with.
..... ' : :.
Empl()yees.< ><Were .
Sustained>
Employees'fh.af
in BOP .... :
Tnvestigated
'.
Allegations
Were Disciplined
P~pula:tiori: Numbe:rPe:rcent! Number \ PercenfNutnberPerceIlt
19,822
2,173
11.0 I 1,120 I 51.5
784
70.0
11,703
1,248
10.7 I
628
i 50.3
439
69.9

Gra:de9~12.
·Cra.cfe13.and
2515
225
above..."
Source: OIG analysis of BOP data

8.9

I

108

I

48.0

71

65.7

:32 BOP grade level and job series population data was provided by the BOP. BOP
gender and racial population data comes from the "BOP Quick Facts," September 2003.

:I:l In all tables, the percentage of "Employees with Sustained Allegations" is of those
employees who were investigated. The percentage of "Employees That Were Disciplined" is
of those employees with sustained allegations.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

33

Data regarding job series. The data also did not show that job series
was a factor in the disciplinary process. For closed investigations in FY
2003, a higher percentage of correctional officers (14 percent) were
investigated compared with non-correctional officers (9 percentj.>' However,
this could be because correctional officers have significantly more contact
with inmates, who can make more allegations than other employees. In
contrast, a smaller percentage of correctional officers had allegations
sustained (45 percent for correctional officers compared with 55 percent for
non-correctional officers), which may also be consistent with the greater
likelihood of specious allegations by inmates. Finally, a higher percentage
of correctional officers with sustained allegations were disciplined (Table 6).
This data did not indicate to us that job series affected the disciplinary ,
process.
Table 6: Effect of Job Senes on the Disciplinary Process
...•.•.....•.•..•.........•... «

·:EIllpI()y~esThat

Employees with:

)Eiif:~6~e~ ··I~2~:i~:ted
Jg~SkRrESlpopulati;;riNtimber

Correctional
< •••..

Officer

13,844
1,974
Other . .
1,672
18,148
Source: GIG analysis of BOP data

Percent
14.3
92

";

~~:~:~~oe:s

I

Number I Percent
I
936
I 47.4
920

I

55.0

,:.:::.": .. ; ; :

Employed.That.·.·•.
Were Disdi:illned
Number I Percent
I'

680
614

72.6
66.7

Data regarding race. The data did not show that race was a factor in
the disciplinary process. For investigations closed in FY 2003, slightly
higher proportions of Hispanic and black employees were the subjects of
investigations than white employees. Approximately 13 percent of both
Hispanic and black employees were subjects of misconduct investigations,
compared with 9 percent of white employees. However, a smaller proportion
of black employees had allegations that were sustained, and approximately
the same proportion (70 percent) of employees in all three races had
sustained allegations that resulted in discipline (Table 7). This data did not
indicate to us that race affected the disciplinary process.

34 The Correctional Officer Series includes positions involving the correctional
treatment, custody, and supervision of criminal offenders. We included all other job series
in the "Other" category.

U.S. Department of Justice
Office ofthe Inspector General
Evaluation and Inspections Division

34

T a bIe 7

. Iimary P rocess
EHec t a f R ace on th e D'ISClP

.

Employees' with'
Employees That
.
Were
Sustained
EmployeesThaT ..
Employees ..
Allegations
Were Disciplined
Investigated
in BOP
RACE"
I Population Number !Percent I Number i Percent
Number! Percent ..
I
,
I
49.3
7,162
952
329
Black
I
I 13.3 I 'f f) 9
I 70.1
3,725
503
187
69.5
Hispanic
I 13.5 i 269 ii 53.5
\
! 1,036 i
White' ..
50.7
I 729
21,937
2,045 I 9.3
i 70.4
Source: OIG analysis of BOP data
"

Data regarding gender. The data did not show that gender was a
factor in the disciplinary process. As a percentage of their appearance in
the BOP population, female employees were investigated at a lower rate (8.0
percent) than male employees (11.8 percent). However, a smaller proportion
of male employees (49.8 percent) had allegations that were sustained,
cornparedwith female employees (55.2 percent). Finally, approximately 10
percent more male employees had sustained allegations that resulted in
discipline, as compared with female employees (Table 8). This data did not
indicate to us that gender affected the disciplinary process.
Table 8

Effect of Gender on the Disciplinary Process

Employees That
Employees with
"'Were
.
Sustained
Employees'
..
Investi~ated
Allegations
in BOP
GENDER. ··PoIH1.lation Number Percent I Number I Percent
9,584
765
8.0
I 422 ! 55.2
Female'
.
2,881
i i.s I 1,434 I,
49.8
24,438
Source: OIG analysis of BOP data

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

Employees That •.• .: ..
Were Disciplined<>
NumbenLiPeecerrt'
263
62.3
1,034
72.1

35

TIMELINESS OF THE DISCIPLINARY SYSTEM
The BOP did not consistently report, investigate, and
adjudicate employee misconduct cases in a timely manner.
BOP management did not report allegations of employee
misconduct to the OIA within the required time frames. In
addition, the OIA failed to report allegations, to the OIG
within the required time frames.
The BO~ has not
established written standards for measuring the timeliness
of either the investigative or adjudicative phases of the
disciplinary system.
Using the informal time frames
reported by BOP management, we found that OIA
investigations of employee misconduct were completed in a
timely manner, but local investigations were not. The BOP
also did not adjudicate disciplinary cases in a timely
manner. BOP employees criticized the timeliness of the
disciplinary process. Finally, our review revealed instances
in which the delays in the disciplinary system negatively
affected the final discipline imposed.

We examined data from our sample of 85 investigative files to
determine the BOP's timeliness in referring misconduct allegations to the
OIA. We found that management did not refer misconduct allegations to the
OIA within required time frames.
•

Sixty-eight percent (45 of the 66) of Classification I and II cases were
not reported to the OIA within 24 hours after management became
aware of the misconduct allegation as BOP policy requires. The
average reporting time for these 45 cases was 16 days, and one case
was not reported for 106 days.

•

BOP management was more consistent in reporting Classification III
cases to the OIA within the required 30 days. Only 1 of 19
Classification III cases was not reported to the OIA within the required
30 days.

We examined the OIA's LAWPACK database to evaluate OIA's
timeliness in referring Classification I and II allegations to the OIG in FY
2003. For those cases involving BOP employees, we found that:
•

Twenty-five percent (160 of 628) of Classification I allegations were
not reported to the OIG within 24 hours as required. The OlA took an

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

36

average of 3.6 days to refer Classification 1 allegations to the OIG.:l5
Table 9 shows the number of days it took for the OIA to report
Classification I allegations to the OIG.
Table 9: alA

Re~rting of

Number of daysforOIAtoreport
Classification T'allegationloOTG
1 day or less
2 -7 davs
8 - 14 davs
More than 14 days
Unknown

------------------:r-

'. --

Classification I Cases to the OIG

.. Number of
. ' Percentage of
allegations reported . allegations reported
I
357
56.8
I

l45

i

.1

8

--

' _ _ -0 _ _ -

I

._.

23.1

I
-_ ...

--

I
1.3
- -.....-.-f.---------I

7

I

III

!

1.1
17.7

Source: OIG analysis of BOP data

•

Twenty-two percent (226 of i ,047) 'of Classification' II cases were not
reported within the required 48 hours. The Ol A took an average of 4.5
days to refer Classification II cases to the OIG. Table 10 shows the
number of days it took for the OfA to report Classification I allegations
to the OIG.
.Table 10: alA Reporting of Classification II Cases to the OIG

1.<Number ofdays.for OIAto report
.. ClassificatioliTallegatioIltoOIG

2 days or less
3 - 7 davs
8 - 14 days
More than 14 days
Unknown

Percentage of
allegations reported

Number of

I allegations reported
- ---- ._ .

.

675
159
-_._25
.._..
42
146

I
--

••

__ 0 _ _ -

64.5
15.2
2.4

---_.---_.._--_._---+-

4.0
13.9

Source: OIG analysis of BOP data

An alA official asserted that the delays in reporting to the OIG could
be partially attributed to an influx of cases during certain time frames,
which may affect overall workload, or a recent change in Ol A review and
referral procedures.
The BOP has not established written time frames for the
.investigation and adjudication of misconduct allegations. Because
there are no written time frames, we asked BOP officials what they
considered to be appropriate time frames for the investigation and the
35 According to the "OlA Report for Fiscal Year 2003," of the 4,193 cases opened,
788 were Classification I and 1,287 were Classification II cases. The difference between
these numbers and the total reported in the text above occurred because we analyzed only
cases opened in FY 2003 involving BOP subjects for whom data was available. We did not
analyze Classification III cases because of a lack of data.
.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

37

adjudication of misconduct cases. We based our analysis of timeliness on
these informal time frames provided by BOP management. While alA
investigators generally completed investigations of employee misconduct
within the informal time frames set by alA management, local investigators
did not. In addition, the adjudication of misconduct cases exceeded the
informal time frames provided by LMR officials. While the Ol A and LMR
record some date information, they do not 'use this information to analyze or
measure timeliness.
According to the Ol A Chief, investigations conducted by Ol A
investigators should be completed within 90 days and local investigations
conducted at the institutions should be completed within 60 days.36 Our
analysis of the 85 case files in our sample found that the average time it
took for OlA investigators to complete th~\r investigations was 84 days, less
than the informal time frame of 90 'days. However, the average time it took
local investigators at the institutions to complete an investigation was 103
days, 43 days longer than the Ol A's informal 60-day time frame (Table 11).37
Table 11: Average Number of Days to Complete Investigations
.··.TypeandNuII1})erof

·['Informaf.TiII1eFrame

;In.vestiga1:foI1s<>1

.. Average Number of Days

' t o ComplefeInvest.igatloI1

OlA (17)
I
Local (68)
.
I
Source: OIG analysis of BOP data

90 days
60 days

84
103

It should be noted that the averages above exclude the additional
investigative work of external law enforcement entities that were required in
certain cases. In our sample of 85 cases, Federal Bureau of Investigation
(FBI), OIG, or localIaw enforcement were involved in 10 cases (~OIG
assistance with polygraphs). We did not determine how much external law
enforcement activity extended the total time spent on each investigation.
36 In the OIG's previous reviews of Department disciplinary systems, we noted that
the U.S. Marshals Service has a standard of 90 days for completing its investigations of
employee misconduct, and the Drug Enforcement Administration has a standard of 180
days.

:17 For investigations completed by the OIA, the process began when the OIG
referred the case back to the OIA and ended when the OIA Chief signed the completed
investigation. Data was available for 12 of the 17 investigations conducted by the OrA. For
investigations completed by local investigators, this process began when the OIA (cont'd)
authorized a local investigation and ended when the Warden signed the completed
investigative report. Data was available for 39 of the 68 investigations conducted by local
investigators. We did not include any of the 17 Classification III cases in this analysis
because the local investigators do not need authorization from the OrA before beginning
these investigations.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

38

In addition, the BOP had no written standards for assessing whether
institutions, Regional Offices, or the LMR adjudicated misconduct cases in a
timely manner. According to the Assistant Chief of LMR, a range of 60 to 70
days to adjudicate a disciplinary action case and a range of 75 to ,90 days to
adjudicate an adverse action case are acceptable time frames.
For the 92 subjects with sustained allegations in our sample, the
adjudicative phase took an average of 97 days for disciplinary actions and
110 days for adverse actions (Table 12).

T a bi e 12 Average N urnb er a fD ays t a c amp 1e t.ee AdiJU diIcatron
Segment of Adjudicative ..":
Days to 'Adjudicate
Days to Adjud icat e":
.Process" .... ".'.:'
Adverse Actions
" Disciplinary Actions·
,

Date the investigative report was
signed to date the proposal letter
was signed
Date the proposal letter was
signed to date the decision letter
was signed

Average Number of Days to
Complete Adjudication

53

69

57

28

110

i

i

97

Source: OIG analysis of BOP data
*Seventy subjects in our sample received disciplinary actions and SL'< subjects in our
sample received adverse actions. (Because of the small number of subjects in our sample
who received adverse actions, we cannot conclude that the observed delays for adverse
actions were typical.) Our analysis does not include data for 12 subjects for whom no
disciplinary action was taken and 4 subjects who either retired or resigned.

The averages resulting from our sample reveal that adverse action
cases exceeded the informal time frame established by the LMR by an
average of 20 days. Disciplinary cases exceeded LMR's time frame by an
average of 27 days. We asked an LMR official why these delays might have
occurred. The LMR official stated that delays in the first part of the process
could be due to time needed to make revisions to the proposal letter at the
Regional Office or LMR or to resolve disagreements among the institution,
Regional Office, and LMR regarding the type of penalty to be imposed.
Delays in the second part of the process may have resulted from the subject
requesting extensions in providing an oral or written response to the
deciding official.
BOP employees we surveyed were critical of the delays in the
disciplinary process. Approximately 43 percent of the BOP employees who
stated that they were involved in or aware of misconduct investigations
believed that these investigations were not timely. Approximately

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

39

34 percent who stated they were aware of investigations that resulted in
discipline believed that the adjudication of discipline' was. not timely.
Employees cited cases that lasted one to two years, including some cases
that continued for four or five years. They acknowledged that some lengthy
investigations were justified, given the complexity or number of allegations
involved. However, the BOP employees could not understand why relatively
minor offenses extended beyond what they perceived tobe a reasonable
amount of time.
Employees commented on how lengthy disciplinary decisions
adversely affected employee morale and career progression. They referred to
instances in which subjects of an investigation were assigned to "home
duty" status for one to two years while waiting for a decision.v' They also
cited examples of employees under investigation who were denied
promotions or declared ineligible for awards. The following were
representative employee comments on the effect of lengthy disciplinary
decisions on morale:
•

"Because I know employees who have been under investigation for
YEARS, yes that is plural, years for one allegation ... In my opinion,
that is not only absolutely ridiculous, but it hurts morale worse than
just about any situation that I can think of. ... Furthermore,
employees who are under investigation, are not allowed to transfer, or
be promoted."

•

"Staff members are removed from their regular posts and remain in
'special' posts for extended periods of time, months until a decision is
made on their disposition."

•

"It does not appear to be a priority of the investigators to complete a
misconduct investigation in a timely manner. This lack of timeliness
gives the staff involved in an investigation (either as witnesses or
subjects) the impression that their value as workers, their reputation,
their dignity are not important enough to BOP management to
facilitate the process."

38

Home duty is a temporary duty status of a staff member at his or her residence.

It generally occurs when the agency has a need to have the employee away from the
institution or facility for security or other reasons. It is similar to administrative leave, with

the exception that the employee on home duty must remain in an approved location during
his/her regular duty hours. Department officials must approve home duty lasting more
than 10 days.
U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

40

•

"I recently witnessed a supervisor go for approximately 6 months
between the time he was accused of misconduct until he was placed
back into his position. During that time he was assigned to work the
phone room, helped in the welding shop, etc. The whole process was
an extremely humiliating time for him."

Deciding officials, in responding to a separate survey, also commented
on the negative effect of delays in completing discipline cases. When asked
how they would improve the disciplinary system, the deciding officials
identified improving timeliness as the first priority. Their suggestions
included:
•

Removing a step from the adjudicative phase (regional review);

•

Addressing the delays at the Regional and Central Offices due to the
"many reviews" performed;

•

Requiring time frames for completion of investigations;

•

Implementing "due dates" for regional and LMR review of proposal and
decision letters;

•

Addressing the delays in OIA investigations and subsequent reports,
as well as delays encountered with OIA and OIG referrals; and

•

Implementing training for deciding officials six months prior to their
appointment.

I

I

1\11

Delays negatively affected the discipline imposed. In addition to
the other negative effects associated with untimely disciplinary decisions, we
identified at least three cases in which the proposed discipline was mitigated
because of the extended time spent processing the cases.

The first case involved a charge of Unprofessional Conduct in which a
staff member was overheard using profane and threatening language toward
another BOP employee. The discipline was mitigated from a proposed 5-day
suspension to a Letter of Reprimand. According to written comments
obtained from LMR, "Because of... the length of time it took to complete the
investigation of [the employee's] work record, a letter of reprimand was
issued in lieu of the proposed 5 day sanction."
The second case involved a Health Services Administrator investigated
for Unacceptable Performance of Assigned Duties. The BOP sought removal
U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

41

in a December 2002 proposal letter, and the employee was subsequently
assigned to work escort duty while the case was adjudicated. The employee
provided an oral response to the proposal letter in March 2003, but no
additional action was taken in the case until October 2003. The LMR did
not approve the decision letter because, according to written comments
obtained from LMR, "there is no justification for the delay." No disciplinary
action was taken as a result.
,

'I

The third case involved an arbitration hearing in which the imposed
discipline was overturned because of the length of time between the date of
the incident and the date when discipline was imposed. The following text
box details the case's history.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

42

CASE STUDY: The Need for Timely Case Disposition
This local investigation involved a correctional officer who failed to lock an
inner door in the Special Housing Unit at a Federal Correctional Institution.
"The investigation consisted primarily of taking brief statements from four
. employees, all at the same site, with the facts largely uncontested. The
subject immediately took responsibility and acknowledged that he violated
post orders. However, the investigators did not formally interview the subject
until three months after taking affidavits from the relevant witnesses. The
following is a chronology of the events in the case:
•
•
•
•
•

December 1,2000 - The misconduct occurred.
March 12, 2001 - Investigators completed the investigation and
sustained the charge.
December 21, 2001 - Proposing official
'j proposed one-day suspension.
January 17, 2002 - Deciding official imposed one-day suspension.
February 5, 2002 - Subject served one-day suspension.
,

\

I

I

On March 1, 2002, the subject grieved the suspension. The BOP's position
was that the Master Agreement between BOP and the employee union did not
establish a specific time frame for conducting investigations and that a more
pressing investigation took priority. * The union countered that the language
in the Master Agreement stated "the parties endorse the concept of timely
disposition of investigations and disciplinarY I adverse actions," and that
nothing could "adequately explain the extraordinary delay."
According to the arbitrator who handled this case, because the employee
was "being categorically bypassed for positions for which he is best qualified
. precisely because the charges are pending, then clearly he is being prejudiced
by a delay in the disposition of those charges." The arbitrator stated that
while the Master Agreement "does not provide a specific definition of 'timely
disposition,' in the abstract no reasonable construction of that phrase can
characterize a disposition after fourteen months as timely." The arbitrator
determined that the BOP violated the Master Agreement by suspending the
. subject in January 2002 for an event that occurred in December 2000 and
rescinded the one-day suspension. The officer was reimbursed for lost wages
resulting from the suspension.
* The Master Agreement is a collective agreement between the BOP and its
employee representative , the Council of Prison Locals and the American Federation of
Government Employees.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

43

CONCLUSION AND RECOMMENDATIONS

CONCLUSION

An equitable disciplinary system provides reasonable, consistent,' and
timely discipline for all employees. By addressing the issues identified in
this report, we believe that the BOP can better ensure that its disciplinary
decisions meet these basic goals.
BOP disciplinary decisions sometimes did not appear to be
reasonable. First, for some cases with serious sustained allegations, the
CEOs unilaterally took no disciplinary action or imposed informal discipline
without fully adjudicating the cases or documenting their reasons for taking
these actions. Second, some penalties did not appear reasonable when the
CEOs, in their role as deciding officials, mitigated proposed discipline
without adequately explaining their reasons in the decision letter as
required. Third, CEOs review and have the opportunity to influence
investigation reports for cases in which they also act as the deciding
officials. This can compromise the independence of the investigative and
adjudicative phases of the BOP disciplinary process and create the potential
for unreasonable outcomes.
In addition, BOP guidance instructs CEOs to impose similar penalties
for similar misconduct and circumstances at each institution. However, the
BOP does not require that employees in comparable facilities receive similar
penalties for similar infractions. Instead, the BOP requires only that the
CEOs, as deciding officials in each of its facilities, be consistent with their
own prior decisions, because that is the level of consistency that is required
for the MSPB to sustain the agency's disciplinary decisions if the employee
appeals. Notwithstanding the MSPB requirements, an equitable disciplinary
system should ensure that all BOP employees receive substantially similar
discipline for similar infractions.
Finally, the BOP did not consistently process employee misconduct
cases in a timely manner. The BOP did not report allegations of employee
misconduct to the proper authorities within the required time frames. In
addition, the BOP has not established written standards for measuring the
timeliness of the investigative or adjudicative phases of its disciplinary
system.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

44

RECOMMENDATIONS

We make ten recommendations to help the BOP ensure that its
disciplinary decisions are reasonable, consistent, and timely. The
recommendations focus on ensuring that the investigative and adjudicative
phases of the disciplinary system function independently and that sustained
misconduct allegations are fully adjudicated; the reasons for mitigating
discipline are adequately documented; BOP employees receive similar
penalties for similar infractions BOP-wide; misconduct cases are
investigated and adjudicated in a timely manner; and that the BOP develops
controls to monitor disciplinary decisions for consistency throughout the
BOP.
We recommend that the BOP:
1.

Reinforce the existing policy that BOP employees report
allegations of employee misconduct to the proper authorities as
required.

2.

Require that CEOs forward cases with sustained allegations
through the full adjudicative phase.

3.

Ensure that when the deciding official mitigates the proposed
discipline, the decision letter contains an adequate explanation of
the reasons.

4.

Remove the CEOs from reviewing and approving investigative
reports of employee misconduct for cases in which they will act
as the deciding official by implementing an alternative review
process that preserves the independence of the investigative and
adjudicative phases.

5.

Reinforce the existing policy that all required documents be
maintained in the disciplinary files.

6.

Develop procedures to ensure that discipline is imposed
consistently BOP-wide, and review discipline for consistency
across the agency periodically after these procedures are
implemented.

7.

Reinforce the existing policy that CEOs report allegations of
employee misconduct to the OlA within required time frames.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

45

8.

Reinforce the existing policy that the OIA reports misconduct
allegations to the OIG within required time frames.

9.

Establish written time guidelines for the investigative and
adjudicative phases of the disciplinary system.

10. Require that the BOP Program Review Division periodically review
a sample of closed disciplinary case files to assess whether the
disciplinary decisions were reasonable, consistent, and timely.

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

46

APPENDIX I: THE DOUGLAS FACTORS

In Douglas u. Veterans Administration (1981), the Merit Systems
Protection Board (MSPB) identified 12 relevant factors that agency
management needs to consider and weigh, in deciding an appropriate
disciplinary penalty. The Douglas factors are:
1.

The nature and seriousness of the offense and its relation to the
employee's duties, position; arid responsibilities, including whether
the offense was intentional or technical or inadvertent, or was
committed maliciously or for gain. or was frequently repeated;

2.

The employee's job level and tYTH! of employment, including
supervisory or fiduciary role, contacts with the public, and
prominence of the position;

3.

The employee's past
disciplinary record;
,

4.

The employee's past work record, including length of service,
performance on the job, ability to get along with fellow workers,
and dependability;

5.

The effect of the offense upon the employee's ability to perform at a
satisfactory level and its effect upon supervisors' confidence in the
employee's ability to perform assigned duties;

6.

Consistency of the penalty with those imposed upon other
employees for the same or similar offenses;
Consistency of the penalty with the applicable agency table of
penalties (which are not to be applied mechanically so that other
factors are ignored);
The notoriety of the offense or its impact upon the reputation of
the agency;

9.

The clarity with which the employee was on notice of any rules that
were violated in committing the offense, or had been warned about
the conduct in question;

10. The potential for employee's rehabilitation;

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

47

11. Mitigating circumstances surrounding the offense, such as

unusual job tensions, personality problems, mental impairment,
harassment, or bad faith, malice or provocation on the part of
others involved in the matter; and
12. The adequacy and effectiveness of alternative sanctions to deter
such conduct in the future by the employee or others.
.

I

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

I,.

48

APPENDIX II: CONFIDENCE INTERVALS FOR EMPLOYEE
SURVEY
As mentioned in the "Purpose, Scope, and Methodology" section, we
surveyed a sample of 441 BOP employees out of a population of
approximately 33,600. Sixty-two percent (275 of 441) responded. In our
findings sections, we cite the percentage of employees having certain
opinions. The precision of our estimates about these opinions, based on a
95 percent confidence level, is shown below. The calculations were
computed using standard statistical formulas for a simple random sample.
T a bl e 13 , I nves t'19a t.iIons

F

Page Where
StatenlEmt
. Is Located ...

r.

14
14

14
14

I

";':

....

.

.. ".
-

.

"::.:
-,"

'.-.'

.::

-'.-"
..
....
.'

.

0

fE mp I oyee M'rscon d uc t
95%.·'

.
-.

S'UrVeyStat.ement

Percentage . Confidence
Interval .'

Employees have read the Standards of
Employee Conduct.
Employees are aware of the BOP's
requirements for reporting employee
misconduct.
Employees who witnessed employee
misconduct did not always report it to
proper authorities.
Employees do not believe their fellow
emplovees always report misconduct.
Investigations are thorough.______ .
Investigations are not thorough.

16
16
Source: OIG analysis of BOP data

Ii

91.64

±3.26

96.36

±2.20

41.18

±11.69

66.05

±5.62
I

_-~_._.

73.53
__. - ..- - - - - - - _.
26.47

__

Table 14: .'.Reasonableness
of Disciplinary System
--.
-._ - - _ .

.· •. Pa.g~\Vl1ere· .. ..
.Statelnerit .
Is· Loca.ted.

.

..

..

.

..

-_ . . .
..... ..........
. . . . . . . . "'.
:
. ::,;:':;:::.:;":":
.. - ........

.

'

'

'

._--~
•

.

.

'

surv¢y Stateme nt

Dis cipline is not appropriate
27
Discipline is too lenient.
27
Source: OIG analysis of BOP data

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

-

.

• • 0"

. - "-. - "
...

__

."

'

-

' •••

--"
. .
....
..".' .
.

",

..

"

±7.40
±3.26

'.•. QS%>

Percentage' . Confidence
.
.. ..
.
Interval
2 6 15
I ±7 5 4
I
-

,

,

'".

..

..,'.

I

!

16 92

!

±6 43

49

" t ency
T a bl e 15 : C orisrs

:pageWl1ere
.Statement
Is Lc,cat:ed
31

0

f D"lSClP
. 1"mary Siys t em

...

SurveySfateme nt

I,

·-rI

Employees are treated diffe~e~·tiY·---·_·i
accordin~to their job titl~~
.
I Employees are treated differently
I
according to their grade level.
I Employees are treated differently
II
according to their gender.
,!
Employees are treated differently
!
according to their race.
\

95% ..........

Percentage

Confiden.ce
Interval

59.63

±7.56

_. _.. _--j--- _._---_..-

31
31
31

- - - - - - -_.

5~.62
43.05

±7.68
±7.88

I

43.42

±7.86

Source: OIG analysis of BOP data

T a bl e 16 : T"rrn e m ess
····Page}Vheie
.statement
Isidcated.····
39

.
.......

'

0

f DilSClP
, I'rnary Ssys t em

..
.....

. SufveY Statement

t

95%,.·.··

Percentage

Confidence
,...
....

42.57

±7.95

33.59

±8.07

-:

Misconduct inyes tigations are not
handled in a timely manner.
Adjudication of discipline is not timely.

40
Source: OIG analysis of BOP data

U.S. Department of Justice
Office of the Inspector General
Evaluation and Inspections Division

...

.

InterVal·····

50

APPENDIX III: BOP'S RESPONSE TO THE DRAFT REPORT

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Evaluation and Inspections Division

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Evaluation and Inspections Division

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Evaluation and Inspections Division

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•

APPENDIX IV: OIG ANALYSIS OF BOP'S RESPONSE
On August 17, 2004, the Office of the Inspector General (OIG) sent
copies of the draft report to the Director of the Federal Bureau of ,Prisons
(BOP) with a request for written comments. The Director provided the final
written comments to us in a memorandum dated September 15, 2004.
The BOP fully concurred with seven of the ten recommendations and
generally concurred with two other recommendations, but expressed "strong
reservations as to [the] implementation" of the remaining recommendation.
This recommendation called for the removal of the Chief Executive Officer
(CEO) from reviewing and approving investigative reports of employee
misconduct for cases in which the CEO also would act as the deciding
official. The OIG made this recommendation to help ensure the
independence of the investigative and adjudicative phases of the disciplinary
process and to reduce the potential for unreasonable disciplinary decisions.
The BOP stated that it would prefer to "explore and possibly pilot alternative
review processes." However, it remains the OIG's position that independent
investigative and adjudicative phases are crucial to maintaining the checks
and balances essential to an effective disciplinary system. The BOP needs
to implement an alternative review process in which the CEOs do not both
review and approve investigations as well as act as the deciding official.
Following is an analysis of each BOP response to the report's ten
recommendations.
RECOMMENDATIONS
Recommendation 1: Reinforce the existing policy that BOP employees
report allegations of employee misconduct to the proper authorities as
required.
Status: Resolved - Open
Summary of BOP's Response: The BOP concurred with this
recommendation. The BOP will incorporate this finding and
recommendation in the next annual training cycle and other training
programs that discuss ethics and standards of conduct. In addition, the
Office of Internal Affairs (OIA) is developing a training video that will address
this finding.
OIG's Analysis: The actions described by the BOP are responsive to
our recommendation. By December 1, 2004, provide the training materials
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,

that show how the finding and recommendation will be incorporated into
future training sessions or a status report on when the materials will be
completed. In addition, by December 1, 2004, provide a copy of the OIA
training video or a status report on when it will be completed.
Recommendation 2: Require that CEOs forward cases with sustained
allegations through the full adjudicative phase.
Status: Resolved - Open
Summary of BOP's Response: The BOP concurred with this
recommendation. The BOP plans to publish instructions for all CEOs
requiring each sustained misconduct case to be fully adjudicated. However,
the BOP is allowing an exception to this requirement. The CEOs will have
the option of selecting sustained cases that, in their opinion, do not warrant
disciplinary or adverse action. These cases, along with the CEO's
justification for this action, will be submitted to the Labor Management
Relations Branch (LMR) for its review. The BOP response also indicated
that the LMR, after completing its case review, will recommend to "Bureau
management" whether disciplinary or adverse action is warranted or will
recommend that the case be resolved through performance evaluation
procedures.
OIG's Analysis: The actions described by the BOP are responsive to
our recommendation. However, we believe that the instructions to the
CEOs implementing this recommendation must be comprehensive. For
example, the instructions should identify by position the "Bureau
management" official(s) who will review the LMR recommendations.
Further, the instructions should specify that the "Bureau management"
official(s), and not the CEO who initiated the review, will make the final
decision on whether or not a case will be fully adjudicated. Finally, similar
instructions need to be issued to the LMR,given its expanded role in this
revised review process. By December 1, 2004, provide copies of the CEO
and LMR instructions or a status report on the progress of their completion.
Recommendation 3: Ensure that when the deciding official mitigates the
proposed discipline, the decision letter contains an adequate explanation of
the reasons.
Status: Resolved - Open
Summary of BOP's Response: The BOP concurred with this
recommendation. The BOP will issue a reminder to all parties involved with
the preparation and technical approval of disciplinary and adverse action
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-.

letters that adequate explanations involving mitigation must be
documen ted.
OIG's Analysis: The actions described by the BOP are responsive to
our recommendation. By December 1,2004, provide a copy of the formal
reminder or a status report on when it will be completed.
Recommendation 4: Remove the CEOs from reviewing and approving
investigative reports of employee misconduct for cases in which they will act
as the deciding official by implementing an alternative review process that
preserves the independence of the investigative and adjudicative phases.
Status: Unresolved
Summary of BOP's Response: The, BOP stated that while this
recommendation needed to be explored, it had strong reservations as to its
implementation. The BOP also asked that the OIG consider rewording the
recommendation to state: Explore alternative review processes that preserve
the independence of the investigative and adjudicative phases. The BOP
response further stated that it wants to "explore and possibly test
alternative processes" because any meaningful departure from the current
method would require: 1) a major realignment of existing functions, 2) a
concurrent investment in staffing numbers when the BOP is facing potential
downsizing issues, and 3) a significant shift in the authority structure over
local investigations. The BOP stated that any attempt to implement this
recommendation will require "much additional research and thought."
OIG's Analysis: The actions described by the BOP are partially
responsive to our recommendation. The OIG has taken into account the
concerns that the BOP presented above. However, the CEOs' involvement in
both the investigative and adjudicative phases of a disciplinary system can
affect the independence of the two phases and the overall disciplinary
system. The OIG does not believe it is appropriate to change the
recommendation, and the recommendation is unresolved. By November 1,
2004, provide a plan and schedule for how the BOP will explore and test an
alternative investigative review process that leads to final implementation of
a policy for ensuring the independence of the investigative and adjudicative
phases.
Recommendation 5: Reinforce the existing policy that all required
documents be maintained in the disciplinary files.
Status: Resolved - Open

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Summary of BOP's Response: The BOP concurred with this
recommendation. The BOP will provide a memorandum to the field
reinforcing the requirement that all documents used to support disciplinary
actions be maintained in the appropriate files. Also, the BOP stated that
this issue will be reviewed when program reviews are conducted at
institutions and facilities.
OIG's Analysis: The actions planned by the BOP' are responsive to
our recommendation. By December 1, 2004, provide a copy of the
memorandum and the instructions developed to assess this issue during
internal program reviews or a status report on when the memorandum and
the instructions will be completed.
Recommendation 6: Develop procedures to ensure that discipline is
imposed consistently BOP-wide, and review discipline for consistency across
the agency 'periodically after these procedures are implemented.
Status: Resolved - Open
Summary of BOP's Response: The BOP concurred "with the position
that discipline imposed should be consistent assuming all facts are the
same, including position and security level of the institution,"
The BOP stated it would take the following actions to address the
recommendation. The BOP will: 1) review prior case law and actions taken
to assess the appropriate range of penalties for specific charges,
2) review the need to modify its Table of Penalties to ensure that penalties
fall within the national range, 3) complete a formal review of past
misconduct cases to determine the appropriate range of penalties for a given
charge, and 4) develop procedures to ensure that each sanction is reviewed
for consistency by LMR and Regional Human Resources staff.
OIG's Analysis: The actions planned by the BOP are responsive to
our recommendation. The OIG does not suggest that "exact consistency"
should be the goal or can ever be achieved, because of unique factors that
apply to each case. In our report, we describe consistency as being attained
when similar discipline is imposed for similar misconduct and
circumstances on a BOP-wide basis. By December 1, 2004, provide: 1) the
results of the review of prior case law and actions to assess the appropriate
range of penalties for specific charges, 2) the review of the need to modify
the Table of Penalties, 3) a copy of the formal review of past misconduct
cases for determining the appropriate range of penalties for a given charge,
and 4) a copy of the procedures ensuring that each sanction is reviewed for
consistency by LMR and Regional Human Resources staff, or a status report
on when each of the documents will be completed.
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Recommendation 7: Reinforce the existing policy that CEOs report
allegations of employee misconduct to the OlA within required time frames.
Status: Resolved - Open
Summary of BOP's Response: The BOP concurred with this
recommendation. The BOP will issue a "Blue Letter" reinforcing existing
policy. In addition, the BOP will incorporate this finding and
recommendation in future Wardens' conferences and New 'Wardens'
Training.
OIG's Analysis: The actions planned by the BOP are responsive to
our recommendation. By December 1, 2004, provide a copy of the Director's
Blue Letter or a status report on when it will be issued.
Recommendation 8: Reinforce the existing policy that the OIA report
misconduct allegations to the OIG within required time frames.
Status: Resolved - Open
Summary of BOP's Response: The BOP concurred with this
recommendation. The BOP stated that it has completed a realignment of
staff functions resulting in the improved timeliness of referrals to the OIG.
OIG's Analysis: The actions taken by the BOP are responsive to our
recommendation. By December 1, 2004, provide documentation detailing
the realignment of functions and how it has improved timeliness.
Recommendation 9: Establish written time guidelines for the investigative
and adjudicative phases of the disciplinary system.
Status: Resolved - Open
Summary of BOP's Response: The BOP generally concurred with
this recommendation. However the BOP had reservations and proposed an
alternative. The BOP stated that three issues need to be considered before
it would accept the recommendation as stated. The first issue is the
impossibility of anticipating the unique factors that can occur in a case and
impede the case's progress. The second issue is the "potential risks" and
"land mines" posed by the formal establishment of time guidelines when
defending disciplinary actions. The third issue is the role that participating
outside law enforcement entities and courts can have on the timeliness of a
case. As a result of these issues, the BOP proposed its own internal time
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"expectations" for investigative work. The upper limits would be 120 days
for local investigations and 180 days for OIA investigations. The BOP also
said that it would establish an upper limit for completing the adjudication of
misconduct cases at 120 days.
OIG's Analysis: The actions planned by the BOP are responsive to
our recommendation. The upper limits proposed appear reasonable as a
starting point to measure and evaluate its current capacity to investigate
and adjudicate misconduct cases more efficiently. Other Department
entities reviewed by the OIG either had in place or as a result of OIG
recommendations implemented simil'ar time frames. By December 1, 2004,
the BOP should provide the guidance it will issue to local investigators and
Human Resources staff at institutions and facilities, the Human Resources
staff at Region offices, and OlA and LMR staff that details the establishment
and application of these time frames, or, a-status report on when the
guidance will be completed.
'
Recommendation 10: Require that the BOP Program Review Division
periodically review a sample of closed disciplinary case files to assess
whether the disciplinary decisions were reasonable, consistent, and timely.
Status: Resolved - Open
Summary of BOP's Response: The BOP concurred with this
recommendation. The BOP stated that it will revise its Program Review
Guidelines to include a review of closed disciplinary case files. The target
date for implementation is December 31, 2004.
OIG's Analysis: The actions taken by the BOP are responsive to our
recommendation. By December 1, 2004, provide a copy of the revised
Program Review Guidelines or a status report on when the revision will be
completed.

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Office of the Inspector General
Evaluation and Inspections Division

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