Jurisdiction and Functions
Policy Initiatives and Effect on OPR Activities
Statistical Summary of OPR Activities in FY 1995
Examples of Matters Investigated by OPR in FY 1995
Federal Bureau of Investigation OPR
Statistical Summary of FBI/OPR Activities in FY 1995
Examples of Matters Investigated by FBI/OPR in FY 1995
Drug Enforcement Administration OPR
Significant Initiatives in FY 1995
Statistical Summary of DEA/OPR Activities in FY 1995
Examples of Matters Investigated by DEA/OPR in FY 1995
Prompt Investigation in Cases Involving Judicial Misconduct Findings or Criticism: The policy
of conducting an expedited investigation into judicial misconduct findings or criticism frequently
results in an OPR investigation prior to completion of the appeals process. This policy permits
the resolution of misconduct issues in a more prompt and timely fashion. In the past, in cases in
which a misconduct finding or criticism was contested on appeal, OPR would usually await the
results of the appellate process before actively investigating the matter. Thus, under the prior
practice misconduct allegations were often resolved during the appellate process or OPR would
have the benefit of the appellate court's views which frequently served to narrow the issues. This
is generally not the case under the new policy. Similarly, under the new policy, OPR is often
unable to obtain comments on the judicial findings or criticism from the trial judge because the
underlying case is still pending in the courts.
Completion of Investigation Following Resignation or Retirement of Attorney: The policy of
completing an OPR investigation despite the resignation or retirement of the subject has served
to increase accountability for the actions of the Department's prosecutors and other attorneys,
regardless of whether they continue to be employed by the Department, and to provide the
Department with a full factual record of the resolution of all OPR matters. This policy has
impacted on OPR's operations since in the past the OPR investigation was normally closed upon
the resignation or retirement of the Department attorney unless there was a substantial institutional
interest in completing the investigation. In addition, the policy has had the effect of increasing the
number of matters in which allegations of attorney misconduct are substantiated. In the past, a
Department attorney's resignation before completion of the investigation or the imposition of
discipline frequently meant that a determination that the attorney had engaged in misconduct or
exercised poor judgment was avoided. This is not the case under the revised policy calling for
completion of the investigation unless the Deputy Attorney General determines that no substantial
Department interest is furthered by continuing the investigation. Consequently, the policy has
resulted in an increase in the number of substantiated allegations of attorney misconduct which is
reflected in the statistical data for fiscal year 1995.
Public Disclosure of OPR Findings: The Department's public disclosure policy calls for the
disclosure of the results of OPR investigations in matters in which there is a finding of intentional
misconduct or in matters involving an allegation of serious professional misconduct in which there
has been a demonstration of public interest, and the public interest in disclosure outweighs the
privacy interest of the attorney and any law enforcement interests. Public disclosure can also be
made at the request of the Department attorney who was the subject of the allegation when the
disclosure would not compromise law enforcement interests. Under the policy, OPR prepares a
proposed public summary in matters which fall into one of the categories in which disclosure may
be appropriate. OPR then coordinates a multi-step process involving several components of the
Department in which the written comments or objections of the subject attorney and his office are
solicited and the privacy and law enforcement interests are assessed. At the conclusion of this
process, OPR sends the proposed summary to the Deputy Attorney General with a
recommendation as to whether the summary should be publicly disclosed. In matters in which the
Deputy Attorney General determines that disclosure is appropriate, the summary is sent to the
Office of Public Affairs for release. This process involves OPR in the matter long after the
misconduct investigation has been completed. Pursuant to the disclosure policy, the Department
of Justice released two public reports in fiscal year 1995.
Reporting of Bad Faith Misconduct Complaints: Pursuant to policy directives from the Attorney
General and the Deputy Attorney General, OPR implemented a policy of reporting to appropriate
judicial or state bar licensing authorities attorneys who make allegations against Department
attorneys in bad faith. OPR has interpreted the policy strictly in order not to discourage the filing
of misconduct complaints against Department attorneys. One such referral was made in fiscal year
Increased Cooperation with State Bars: Pursuant to policy directives from the Deputy Attorney General, during fiscal year 1995, OPR increased its liaison and cooperative efforts with state bar licensing authorities. This included sending OPR attorneys to meetings of the National Organization of Bar Counsel and discussing a procedure under which state bars would defer to an OPR investigation in cases involving allegations against Department attorneys. The ongoing discussions have also covered proposals under which OPR would share the results of its investigations with state bars in certain circumstances.
|Source||Number of Complaints||Percent
|Department components & employees
|Judicial opinions & referrals||36||18%|
Number of Complaints
|Abuse of prosecutorial or investigative authority||77||0||77|
|Unprofessional or unethical behavior||32||1||33|
|Conflicts of interest||18||0||18|
|Unauthorized release of information (other than grand
|Negligence, failure to perform duties properly||5||1||6|
|Violations of civil or constitutional rights||3||0||3|
|Other (incl. tax violations, retaliation, sexual misconduct)||15||1||16|
|Fiscal Year||No. of Matters Closed||No. of Matters Where Allegations Substantiated||Percentage of Matters Substantiated|
Questions to Spouse about Invocation of Marital Privilege. OPR investigated an appellate
court's decision holding that it was reversible error for the government to question defendant's
wife on whether she had invoked the marital privilege before the grand jury. Whether it was
proper to question the witness about the invocation of the privilege was a question of first
impression. There was case law that arguably supported posing the question, and the DOJ
attorney had a justifiable reason for asking the question (to show bias). In addition, before the
question was presented, the attorney requested, and was granted, leave from the court to proceed.
OPR determined that the questioning did not constitute professional misconduct.
Statistical Summary of FBI/OPR Activities in Fiscal Year 1995: FBI/OPR reported that in fiscal
year 1995 it opened 526 matters involving allegations of misconduct against FBI employees. This
number represented a decrease of 1.7% from the 535 matters opened the previous year. The
number of matters closed by the office decreased 21.4% from 580 in fiscal year 1994 to 456 in
fiscal year 1995.(6)
Disposition of FBI/OPR Matters Closed in FY 1995
|Closed Administratively by FBI/OPR|
| Allegations found to be baseless, withdrawn,
or closed for other reasons
|Adjudicated by Field/Division Managers||142|
|Adjudicated by ASU/PD||213|
1. Attorney General Order No. 1931-94 dated November 8, 1994. The order superseded Attorney General Order No. 1638-92 dated December 11, 1992, which previously delineated the jurisdiction of OPR. The previous order provided that OPR was responsible for investigating allegations of misconduct which implicated the "prosecutive, investigative or litigative functions" of the Department.
2. As noted in our report for fiscal year 1994, OPR now counts for case-tracking purposes only matters that become full investigations handled by attorneys in this Office. Matters that do not become the subject of a full investigation, such as those closed after a preliminary review, are not included in the case-tracking system.
3. Although comparison with statistical data from previous years is difficult because of changes in OPR's jurisdiction and case-reporting methodology, OPR has generally maintained jurisdiction over attorney matters resulting from judicial findings of misconduct and judicial criticism. Consequently, we believe this comparison is generally valid.
4. All of the subjects in the cases discussed below are referred to by the masculine pronoun regardless of the gender of individual subjects in order to protect their privacy.
5. In conducting misconduct investigations, OPR does not necessarily apply the same standards employed by the courts in determining whether a DOJ attorney engaged in "misconduct." The courts typically use a harm-to-the-defendant standard which has a single focus -- the defendant -- and frequently do not distinguish between intentional misconduct, the simple exercise of poor judgment, or conduct by others over whom the attorney has no control which affects the defendant. An OPR investigation focuses not only on the effect on the defendant, but all the surrounding facts and circumstances, including the state of mind of the subject DOJ attorney.
6. It should be noted that FBI/OPR cases in which the allegations are substantiated are not closed until the case is adjudicated by the Administrative Summary Unit, Personnel Division, or by the designated field office or divisional manager (see discussion below). Thus, the time involved in adjudication of substantiated matters may reduce the number of cases recorded as closed by FBI/OPR in a fiscal year.
7. This order was discussed at p. 15 of the Office of Professional Responsibility Fiscal Year 1994 Annual Report.
8. The total number of disciplinary actions exceeds the number of employees disciplined because some employees received more than one form of discipline, e.g., a suspension and a period of probation.
9. These figures represent matters designated Professional Responsibility (PR) Investigations by DEA/OPR. In addition to the 371 PR investigations opened in fiscal year 1995, DEA/OPR opened 183 general files. General files are opened when a preliminary review is necessary to determine whether sufficient information exists to warrant a PR investigation. Of the 183 general files opened in fiscal year 1995, 97 were converted to PR investigations and are included in the 371 PR files opened during the year.
10. DEA/OPR reported that the number of PR investigation files opened increased 68%, from 221 in fiscal year 1994 to 371 in fiscal year 1995. The number of matters opened in fiscal year 1994 that was included in OPR's Fiscal Year 1994 Annual Report was derived from case assignment criteria that are no longer used by DEA.