Thursday, February 20, 2014

Report on DOJ disciplinary process by Office of the Inspector General

The U.S. Attorneys are the principal litigators for the U.S. government and oversee the operations of the 94 United States Attorney’s Offices (USAO) located throughout the United States and its territories. The Executive Office for U.S. Attorneys (EOUSA) acts as a liaison between the headquarters of the Department of Justice (Department) and the USAOs and provides management oversight and administrative support to the USAOs. The Office of the Inspector General (OIG) evaluated the consistency, timeliness, and outcomes of the four phases of the discipline process of the USAOs and EOUSA, including the reporting and investigation of alleged misconduct, the adjudication of misconduct cases, and the implementation of the discipline imposed.

Report findings follow.
Overall, we found that some aspects of the USAO and EOUSA discipline system worked well, but improvement is needed in several critical areas. There is no complete misconduct case file information available that includes all documents relevant to the disciplinary process. GCO has the most extensive information in its case files due to its legal and advisory role, but it does not have the authority to require USAO and EOUSA supervisors to share all documents related to a misconduct case, even when formal discipline has been imposed. Also, EOUSA has not delegated responsibility or authority for maintaining a centralized and current misconduct case file and consequently information and documentation on each misconduct allegation may not be up to date. Further, inadequate procedures and insufficient data control requirements, such as the absence of a requirement to update case information in certain data fields, have resulted in incomplete case files in GCO’s case management system.
As a result of incomplete misconduct case files, EOUSA is not able to easily determine the number of misconduct cases or whether penalties actually have been implemented. Additionally, GCO attorneys may well be limited in their searches for case precedents that could assist them in their advisory function and help ensure consistent outcomes in similar situations. Overall, these deficiencies hamper EOUSA in its ability to evaluate the disciplinary process and ensure that discipline decisions are consistent and reasonable.
The lack of information and incomplete case files impeded our evaluation of the four phases of the disciplinary process, and we were able to only partly assess the system. However, where we were able to analyze the four phases of the process, we generally found that the USAOs and EOUSA were appropriately reporting misconduct, conducting inquiries that did not appear to be unreasonable into the allegations, consistently adjudicating formal discipline cases, processing misconduct cases in a timely manner, and producing outcomes that did not appear to be unreasonable.
We determined that USAO and EOUSA supervisors were consulting with, and reporting misconduct to, GCO, even when it was not required by policy, so as to gain the benefit of GCO’s experience and advice in such matters. We also found that, based on all the allegations we were able to review, EOUSA was appropriately referring misconduct allegations to the OIG and OPR.
While we did find that the extent of misconduct inquiries were inconsistent within the same offense types, the variation in the collection of evidence and investigation into the allegations generally was not unreasonable given the variety of circumstances addressed in the cases.
We also found that the outcomes of the misconduct allegations varied substantially within all offense types, except for computer misuse – pornography and computer misuse – adult images. While most of the outcomes in misconduct cases varied, where we were able to evaluate them based on the available records, we generally determined that the outcomes in these cases were not unreasonable based on the circumstances of the case or evidence presented.
Our in-depth review of the computer misuse cases revealed that the USAOs and EOUSA were consistent in applying formal discipline to computer misuse – pornography and applying informal penalties for first-time offenses of computer misuse – adult images. We believe these two offense types had consistent penalties because the cases were supported by concrete evidence of misconduct. In addition, EOUSA developed directives and policy to address these offenses. Further, GCO developed a table of cases and outcomes specifically for these types of cases to aid GCO attorneys when advising the USAOs on penalties. We believe that these factors have contributed to consistent and reasonable penalties for a very serious type of misconduct.
Our in-depth review of cases involving allegations of sexual harassment was hampered by the lack of documentation in many such cases. This made it difficult to evaluate the inquiries and adjudications, and whether they were completed within the time period designated by EOUSA policy for these cases. In addition, in a number of cases, it was difficult to determine whether the allegations were substantiated because there was no statement of substantiation or other record of the finding of the inquiry in many of the case files. In the limited number of these cases where there was sufficient documentation for us to evaluate the adjudication in these cases, we did not find the outcomes reached to be unreasonable based on the facts and circumstances available in the record. However, the lack of documentation could limit the ability of EOUSA to use these cases as precedent for future disciplinary decisions.
Finally, a lack of documentation in the case files also hindered our analyses of the implementation of penalties and the timeliness of the disciplinary process. For example, we were unable to determine if suspensions and removals called for by the disciplinary process actually were imposed in 40 percent of those cases. However, we were able to determine for those cases where there were sufficient records that the USAOs and EOUSA generally appeared to be implementing penalties in a timely manner. Additionally, the USAOs and EOUSA were processing and adjudicating misconduct cases in times comparable with Department law enforcement agencies. However, the lack of general timeliness standards could lead to lengthy cases that diminish the effectiveness of the discipline or leave innocent employees under a cloud of suspicion for an unreasonable period.
Read the full report:


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