Office of Professional Responsibility

Fiscal Year 1996 Annual Report









Office of Professional Responsibility

Fiscal Year 1996 Annual Report




Introduction

Jurisdiction and Functions

Changes in OPR's Jurisdiction, Case Reporting, and Statistical System

Statistical Summary of OPR Activities in FY 1996

Examples of Matters Handled by OPR in FY 1996

Operations of Federal Bureau of Investigation OPR and Drug Enforcement Agency OPR

Federal Bureau of Investigation OPR

Significant Initiatives in FY 1996

Statistical Summary of FBI/OPR Activities in FY 1996

Examples of Matters Investigated by FBI/OPR in FY 1996

Drug Enforcement Administration OPR

Significant Initiatives in FY 1996

Statistical Summary of DEA/OPR Activities in FY 1996

Examples of Matters Investigated by DEA/OPR During FY 1996

Conclusion

__________________________________________





Tables

Table 1. Sources of Misconduct Complaints Received in FY 1996
Table 2. Subject Matter of Misconduct Complaints Received in FY 1996
Table 3. FBI/OPR Caseload in FY 1995 and FY 1996
Table 4. DEA/OPR Caseload in FY 1995 and FY 1996



Office of Professional Responsibility

Fiscal Year 1996 Annual Report


Introduction



The Office of Professional Responsibility was created by order of the Attorney General dated December 9, 1975, to ensure that Departmental employees perform their duties in accordance with the professional standards expected of the Nation's principal law enforcement agency. Pursuant to 28 C.F.R. §0.39a (i)(3), the head of the Office, the Counsel on Professional Responsibility, is required to submit an annual report reviewing and evaluating the activities of the internal inspection units in components of the Department. This is the twenty-first annual report of the Office and it covers fiscal year 1996 (October 1, 1995 to September 30, 1996).
 
 

Jurisdiction and Functions

The Office of Professional Responsibility (OPR) is responsible for investigating allegations of misconduct by Department of Justice attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice. OPR also has jurisdiction to investigate allegations of misconduct by law enforcement personnel when they are related to allegations of misconduct by attorneys within the Office's jurisdiction. OPR also investigates various other matters when requested or authorized to do so by the Attorney General or the Deputy Attorney General.

OPR reports the results of its investigations to the appropriate management officials in the Department of Justice who are responsible for imposing any disciplinary action that may be appropriate. In matters where disciplinary action for professional misconduct against a Department attorney is deemed warranted, OPR recommends a range of possible discipline.(1) Although OPR's recommendation is not binding on the supervisory official with disciplinary authority over the attorney involved, the supervisory official is required to consult with the Office of the Deputy Attorney General in the event the official wishes to deviate from the proposed range.

OPR is responsible for overseeing on behalf of the Attorney General the operations of the Offices of Professional Responsibility in the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). Those offices are responsible for investigating allegations of misconduct by employees of the FBI and DEA, respectively. OPR monitors their activities through the receipt of contemporaneous reports, monthly reports, and frequent contacts with personnel in those offices.

OPR also regularly reviews case files and statistical data to identify any misconduct trends or systemic problems in the programs or operations of the Department. Trends and systemic problems are brought to the attention of appropriate management officials.

OPR is also responsible for preparing summarized reports of certain OPR investigations for public release pursuant to a disclosure policy adopted by the Department in 1993. Subject to certain privacy and law enforcement considerations, the policy provides for the disclosure of the results of OPR investigations in matters where there is a finding of intentional misconduct, in matters involving an allegation of serious professional misconduct in which there has been a demonstration of public interest, and in matters in which the Department attorney who was the subject of the allegations requests such disclosure. The final determination on whether to disclose publicly the results of an OPR investigation is made by the Attorney General. In fiscal year 1996, nine summarized reports were issued pursuant to the disclosure policy.

During fiscal year 1996, OPR increased its attorney staffing level to nineteen. The staffing increase has enabled the office to implement more fully a number of policy initiatives issued by the Attorney General and the Deputy Attorney General over the previous four years that were designed to improve the OPR process and the overall integrity program in the Department. These initiatives included the public disclosure policy mentioned above, as well as policies under which OPR conducts expedited investigations of judicial findings of misconduct or judicial criticism, completes misconduct investigations despite the resignation or retirement of the subject Department attorney, and cooperates with state bar licensing authorities in matters of mutual interest. The staffing increase has also enabled OPR to address a number of complex, resource-intensive investigations in a more expeditious manner.

During the fiscal year, the Office also devoted significant resources in connection with adverse disciplinary actions taken against Department attorneys as a result of OPR investigations. Prior to 1990, Department attorneys found to have engaged in serious misconduct could be removed from their positions by the Deputy Attorney General without appeal. In 1990, most Department attorneys became entitled to the procedural protections applicable to career civil servants in administrative disciplinary proceedings. These procedures include the right to review materials on which the proposed discipline is based, the right to present oral and written responses to the proposed sanction, and the right to a de novo appeal before the Merit Systems Protection Board (MSPB). In several cases during fiscal year 1996, OPR devoted substantial resources to assisting management officials in meeting these procedural requirements, in responding to arguments of counsel, and in cooperating with Civil Division attorneys representing the Department in appeals filed by subject attorneys with the MSPB.
 
 

Changes in OPR's Jurisdiction, Case Reporting, and Statistical System

In previous annual reports, OPR has commented that the jurisdiction of the Office has changed significantly over the past few years. Prior to 1989, OPR had overall responsibility for the investigation of allegations of misconduct on the part of all employees of the Department of Justice. In practice, OPR generally limited the matters it investigated to allegations of misconduct against employees in the litigating divisions and other offices of the Department, employees of the United States Attorneys' Offices, and other employees not employed in a Departmental component having its own internal investigative unit. Misconduct allegations against employees of the FBI, the DEA, the Immigration and Naturalization Service, the Bureau of Prisons, and the U.S. Marshals Service generally were investigated by internal investigative units in those Departmental components under the general oversight of OPR. However, in certain circumstances OPR investigated misconduct allegations against employees of those components. This typically occurred when the allegations were extremely serious, involved a ranking official of the component, or when an investigation by the component's internal investigative unit would pose an actual or apparent conflict of interest.

In 1989, the Office of the Inspector General was created in the Department of Justice pursuant to the Inspector General Act Amendments of 1988. According to the Act and its legislative history, jurisdiction over the investigation of misconduct allegations against Department employees was divided between OPR and the Office of the Inspector General. OPR was responsible for the investigation of allegations of misconduct involving Departmental "attorneys, criminal investigators, and other law enforcement personnel." Responsibility for the investigation of other matters was assigned to the Inspector General.

By Attorney General Order No. 1638-92, dated December 11, 1992, the Attorney General clarified the jurisdictional division between OPR and the Inspector General. Under the order, OPR's jurisdiction was revised to extend to the investigation of allegations of misconduct against Department employees which implicated the Department's core functions, that is, the "prosecutive, investigative, or litigative functions of the Department." The investigation of matters not involving the core functions were the responsibility of the Inspector General.

After operating for approximately two years under the jurisdictional division established under the 1992 order, OPR's jurisdiction was amended to its present form pursuant to Attorney General Order No. 1931-94, dated November 8, 1994. Under the current order, OPR is responsible for investigating allegations of misconduct by Department of Justice attorneys which relate to "the exercise of their authority to investigate, litigate, or provide legal advice." OPR is also responsible for investigating allegations of misconduct against law enforcement personnel when they are related to allegations of misconduct by attorneys within the Office's jurisdiction.

In conjunction with jurisdictional and policy changes, OPR has continued to revise its case-reporting methodology over the past few years. A significant change has been to count for statistical reporting purposes only matters that become full investigations handled by OPR attorneys. In the past, OPR included for statistical reporting purposes all matters setting out allegations of misconduct against Department employees in which OPR had a role in either investigating the matter or in supervising or monitoring the investigation conducted by another Departmental component. That practice has been discontinued. This has resulted in a significant decrease in the number of matters reported by OPR. The changes also appear to account for an increase in the percentage of matters in which allegations are substantiated since only the more serious allegations requiring a full OPR investigation are counted for statistical reporting purposes. These results are reflected in the statistical data for fiscal year 1996.

Jurisdictional, policy, and case-reporting changes have also driven the revisions to OPR's statistical reporting system that are reflected in this report. The statistical changes are intended to provide more detail regarding the types of matters the Office investigates and to account more accurately for matters involving findings of professional misconduct on the part of Department attorneys. For example, the statistical category for substantiated matters has been revised. In the past, OPR reported as substantiated all matters in which OPR found that the employee had either engaged in some form of professional misconduct or exercised poor judgment. Under the format set out in this report, OPR now reports as substantiated only those matters that result in a finding of professional misconduct, that is, either intentional misconduct or reckless disregard of a professional obligation. Matters in which the subject attorney was found to have exercised poor judgment are not included in the computation. The change is designed to reflect more accurately the disposition of attorney matters investigated by OPR.
 
 

Statistical Summary of OPR Activities in Fiscal Year 1996

Matters Opened in Fiscal Year 1996. During fiscal year 1996, OPR opened a total of 121 matters, all involving allegations of misconduct by Department attorneys. The number of matters opened represented a 37% decrease from the 192 attorney matters opened in fiscal year 1995. As explained in the preceding section, the decrease was attributable to changes in OPR's case-reporting methodology.

The number of complaints received from certain categories of sources and the percentage of complaints falling into each category, are set out in table 1 below.

Table 1. Sources of Miscondust Complaints

Sources of Misconduct Complaints Received in FY 1996
Source
Number of Complaints Percent of Total
Department components & employees
(including self-reporting) 		44 36%
Judicial opinions & referrals 25 21%
Private attorneys 22 18%
Private parties 17 14%
Other agencies 7 6%
Congressional referrals 4 3%
Other sources 2 2%




The subject matter of misconduct complaints received by OPR in fiscal year 1996 is set out in table 2 below.

Table 2. Subject Matter of Misconduct Complaints Received in FY 1996

Alleged Misconduct No. of
Complaints		 Percent
of Total
Abuse of prosecutorial or investigative authority 34 28%
Unauthorized release of information (including grand jury information) 16 13%
Conflicts of interest 15 12%
Misrepresentation to the court 14 12%
Failure to perform duties properly, negligence 10 8%
Failure to disclose exculpatory, impeachment or discovery material 9 7%
Improper oral or written remarks to grand jury or court 6 5%
Criminality 6 5%
Unprofessional behavior 6 5%
Improper contacts with represented parties 2 2%
Other (incl. unauthorized practice of law, violation of civil rights, etc.) 3 3%

 

Matters Closed in Fiscal Year 1996. OPR closed a total of 144 matters in fiscal year 1996, five of which involved allegations of misconduct against non-attorney personnel. Allegations of professional misconduct were substantiated in 15, or about 11%, of the 139 attorney matters closed during the fiscal year. This included four matters which resulted in a finding of intentional misconduct and 11 matters involving a finding that the subject attorney acted in reckless disregard of a professional obligation.(2)

Disciplinary action was taken against a total of 10 Department attorneys as a result of OPR findings of professional misconduct. One attorney resigned prior to the imposition of discipline and disciplinary action was pending with regard to two attorneys.



Examples (3) of Matters Handled by OPR in Fiscal Year 1996

  1. Intentional Misrepresentation to the Court. OPR investigated allegations that a DOJ attorney made false statements of fact in a motion for an enlargement of time. The DOJ attorney represented in the motion that the response had been prepared prior to the filing deadline but that it was inadvertently filed a few days late. OPR discovered that the attorney did not file the response on time because the attorney did not prepare it until after the filing deadline. The DOJ attorney conceded that a misrepresentation had been made but argued that it did not concern a material fact. OPR concluded that the attorney engaged in intentional professional misconduct. Discipline was recommended but none was imposed because the attorney's temporary appointment was terminated prior to the conclusion of the OPR investigation. OPR referred the matter to the attorney's state bar.

  2. Conflict of Interest. OPR investigated an allegation by a state official that a DOJ attorney, acting on information provided by the attorney's spouse, initiated a criminal investigation of the state official and another employee who worked in the same office as the DOJ attorney's spouse. The state official, to whom both the spouse and the employee were subordinate, noted that the DOJ attorney's spouse had recently been denied a promotion and was a friend of a person who resigned from the state office after being subject to discipline.

    OPR found that the DOJ attorney participated in the criminal investigation to a limited extent by personally telephoning state employees to request documents relating to the alleged criminal conduct. OPR concluded that the DOJ attorney engaged in professional misconduct by failing to realize that investigating a spouse's allegation against the spouse's boss created an appearance of a conflict of interest. The DOJ attorney was given a written reprimand.

  3. Failure to Disclose Brady Material. The defendant in a drug-trafficking case claimed to have been forced to carry drugs by a foreign national who threatened to harm the defendant and her family if she refused to participate. Prior to trial, the prosecutor learned that an investigative agency was aware of a suspected drug trafficker of the same nationality who lived in the area described by the defendant, whose surname was strikingly similar to the name given by the defendant, and who had allegedly been involved in two deaths. The DOJ attorney did not disclose this information to the defendant and at trial urged the jury to question "whether this [foreign national] . . . really exists, whether there is really a drug source besides the defendant." The jury rejected the defense of duress and convicted the defendant. The DOJ attorney revealed the government's knowledge about the foreign national just prior to sentencing. On appeal, the court reversed the conviction due to the government's failure to disclose the information that would have bolstered the defendant's defense of duress and due to the DOJ attorney's suggestion to the jury that it should conclude that the person who allegedly threatened the defendant did not exist.

    OPR found that the DOJ attorney engaged in professional misconduct by consciously disregarding his discovery obligations, made an improper argument to the jury, recklessly disregarded his obligation to be candid with the court, and intentionally misrepresented facts to OPR. OPR recommended a range of discipline from a substantial suspension without pay to termination. The supervising attorney, however, issued a written reprimand to the DOJ attorney, based on a review of his personnel records, interviews of the attorney's other supervisors, and the fact that the incident occurred before the supervising attorney assumed office.

  4. Abuse of Prosecutorial Authority. OPR investigated allegations from a private attorney that his client, a criminal investigator, had been improperly "blacklisted" by, among others, a DOJ attorney. OPR's investigation found that after a judge and several DOJ attorneys expressed doubts about the investigator's credibility as a witness, an independent inquiry was conducted. Based on the results of that inquiry, the DOJ attorney decided that the investigator could no longer be used as a government witness in a particular federal district. OPR concluded that the decision not to use the investigator as a witness constituted a legitimate exercise of the DOJ attorney's management prerogatives and found no misconduct.

  5. Improper Disclosure of Nonpublic Information. OPR investigated an allegation that a DOJ attorney conducting a criminal investigation may have improperly given a second DOJ attorney non-public information that an investment made by the second DOJ attorney might be in jeopardy. OPR determined that the DOJ attorney had legitimate investigative reasons for contacting the second DOJ attorney -- that is, to obtain information about the target of the investigation from a reliable and discreet source. Thus, OPR found that the DOJ attorney's conduct did not constitute professional misconduct, but that the DOJ attorney exercised poor judgment for failing to consider the potential appearance of a conflict of interest created by his contact.

  6. Conflict of Interest - Relationship with a Witness. OPR investigated allegations that a DOJ attorney had sexual contact with a cooperating witness for whom the attorney later wrote a letter in support of a motion for reduction in sentence. OPR determined that the allegations were true. The attorney resigned from his position with the Department while disciplinary proceedings were pending. OPR referred the matter to the attorney's state bar.

  7. Failure to Correct False Testimony of a Government Witness. OPR investigated criticism by a court that a DOJ attorney failed to correct the false testimony of an important government witness relating to the terms of his cooperation agreement and, instead, endorsed the false testimony in closing argument. Through its investigation, OPR found that the court's criticism was accurate. OPR concluded that the DOJ attorney acted in reckless disregard of the obligation not to sponsor perjurious testimony or misrepresentations to the court. Disciplinary action was recommended and imposed.

  8. Neglect of Duty/Failure to Comply with Court Orders. A supervisory attorney sent to OPR evidence that a DOJ attorney had repeatedly neglected the legal matters assigned to him, including failing to file pleadings, disregarding court orders, and declining to respond to inquiries from other Department of Justice components. In some cases, the attorney's dereliction had resulted in the imposition of sanctions against the government. The supervisor recommended that the attorney be removed from his position.

    OPR directed the attorney to respond in writing to the allegations, but he resigned his position without responding. OPR informed the chief disciplinary counsel for the state bar in which the former DOJ attorney was licensed, noting that the allegations had been made and that OPR was unable to resolve them in view of the attorney's resignation and non-cooperation.

  9. Improper Closing Argument. OPR investigated a judge's finding that a DOJ attorney made an improper closing argument that resulted in a mistrial. The judge found that the DOJ attorney made a comment in closing argument that the court had specifically directed the attorney not to make. OPR found that the DOJ attorney, an experienced lawyer, exhibited poor judgment and acted in reckless disregard of the court's admonition. Disciplinary action was recommended and imposed.

  10. Violation of Federal Rule of Criminal Procedure 6(e). OPR investigated an allegation by defense counsel that a DOJ attorney violated Rule 6(e) by stating in a colloquy with the District Court that a witness had appeared before a federal grand jury and had asserted his Fifth Amendment rights. The defense counsel asserted that the DOJ attorney compounded the alleged violation by restating the in-court colloquy to the media.

    OPR found that the DOJ attorney, who left the Department after the conduct at issue but cooperated with the OPR investigation, did not engage in professional misconduct. OPR determined that the statements made by the DOJ attorney to the District Court about the witness' assertion of Fifth Amendment rights were in response to direct questions about the grand jury proceedings and thus were permissible disclosures under Rule 6(e)(3). OPR found further that the in-court disclosure rendered the statements a matter of public record.

  11. Violation of Federal Rule of Criminal Procedure 6(e). OPR investigated allegations by a DOJ attorney that another attorney violated Rule 6(e) by disclosing matters occurring before the grand jury without authorization of the court. The disclosure was made to a state agency. OPR found that the attorney acted in good faith in disclosing information to a cooperating state agency just prior to the disclosure of an indictment and that no harm resulted from the limited disclosure. OPR found no professional misconduct.

  12. Unauthorized Outside Practice of Law. OPR investigated allegations that a DOJ attorney engaged in the outside practice of law during the attorney's tenure with the Department without obtaining DOJ authorization. The DOJ attorney provided legal services to family members and friends in numerous separate matters on a pro bono basis. The DOJ attorney claimed he did not know about the general rule against private outside practice or the need to obtain a waiver of that rule. OPR found no evidence that the DOJ attorney's private practice affected his official responsibilities or violated the conflict of interest provisions. Nevertheless, OPR concluded that the DOJ attorney engaged in the unauthorized outside practice of law on a number of occasions and negligently failed to comply with the applicable regulations. Disciplinary action was recommended and imposed.

  13. Abuse of Prosecutorial Authority. OPR investigated an allegation that a DOJ attorney negotiated a cooperation agreement with a sentenced defendant containing a promise to file a motion for a sentence reduction knowing that the motion had no reasonable chance of success because the jurisdictional time limit for such a motion had passed. OPR found that the DOJ attorney and the defendant's attorney negotiated the agreement in the belief that a motion for reduction of sentence would be timely because the rule provides an exception to the time limit when the defendant had not been asked for certain information earlier and had been unaware of its value to the government. OPR concluded that the DOJ attorney acted in good faith and did not commit professional misconduct.

  14. Failure to Correct False Testimony of a Government Witness. OPR investigated criticism by a court that a DOJ attorney failed to correct the false testimony of an important government witness relating to the terms of his cooperation agreement and, instead, endorsed it in his closing argument. During cross-examination, the witness testified that he had been promised nothing and had received nothing from the government in return for his cooperation and his trial testimony. While the government had fully disclosed the terms of the witness' cooperation agreement, the defense attorney did not challenge the witness' statement. In closing argument, the DOJ attorney commented that the witness, who was about to be released from prison, could not get any more time and nothing else had been done for him. That statement was also incorrect; the plea agreement provided that the government would not prosecute the witness for perjury he committed at his own trial.

    OPR found that the DOJ attorney committed professional misconduct by not correcting the false testimony of the government witness and instead endorsing that false testimony in closing argument. Specifically, OPR found that the DOJ attorney acted in reckless disregard of the obligation not to sponsor perjurious testimony or misrepresent the record to the court. Discipline was recommended and imposed.

  15. Failure to File Substantial Assistance Motion. OPR investigated criticism by a court concerning the refusal by two DOJ attorneys to renew a substantial assistance motion after the defendant withdrew his guilty plea and proceeded to trial. The court found that the government's conduct was designed to punish the defendant for exercising his constitutional right to trial and was improper. The court also found that the attorneys' explanation for not filing the motion -- that the defendant had not actually provided substantial assistance -- was not credible since they had earlier filed a substantial assistance motion.

    OPR interviewed the DOJ attorneys and their supervisors regarding the developments leading to the decision not to file a substantial assistance motion following the defendant's trial and conviction. OPR found that the DOJ attorneys faced a unique set of facts and that the caselaw did not appear to preclude a refusal to renew the substantial assistance motion. The DOJ attorneys discussed the issue with their supervisor and all reasonably believed that once the defendant withdrew his plea, the government was free to negotiate a new plea without regard to the earlier promise to file a substantial assistance motion. Moreover, the DOJ attorneys articulated convincing reasons for not renewing the motion, including new information about the defendant's prior criminal conduct and obstructive behavior during trial, which substantially diminished his usefulness as a witness. OPR therefore disagreed with the court's finding that the DOJ attorneys' real motive in refusing to renew the substantial assistance motion was to retaliate against the defendant for exercising his right to a jury trial and concluded that the DOJ attorneys engaged in no misconduct.


 
 

Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR

 

In addition to the functions described in the preceding sections, OPR assists and oversees the operations of the Offices of Professional Responsibility in the FBI and the DEA. Consistent with 28 C.F.R. § 0.39a(i)(3), which provides for the Counsel to prepare an annual report "reviewing and evaluating the activities of internal inspection units" in the Department of Justice, this section summarizes the operations of and significant developments in those offices in fiscal year 1996.
 

Federal Bureau of Investigation
Office of Professional Responsibility

The FBI's Office of Professional Responsibility (FBI/OPR) is responsible for the investigation of allegations of misconduct against employees of the FBI. During fiscal year 1996, FBI/OPR had a funded staffing level of 14, including an Inspector-In-Charge, a Unit Chief, nine supervisory special agents, two secretaries, and one office automation assistant.

Significant Initiatives in Fiscal Year 1996: During fiscal year 1996, the FBI continued to implement a major reorganization of the FBI's disciplinary process. The reorganization was approved by the Congress in January 1997 and implemented during fiscal year 1997. Prior to the reorganization, the FBI's disciplinary process was divided between two divisions. FBI/OPR, within the Inspection Division, investigated or supervised the investigation of all allegations of criminal behavior and serious misconduct by FBI employees. The Administrative Summary Unit (ASU) in the Personnel Division was responsible for adjudicating all cases of administrative discipline, including misconduct and performance derelictions.

Under the plan approved in January 1997, the FBI will have a separate and substantially expanded Office of Professional Responsibility incorporating two Internal Investigative Units, an Adjudications Unit, and an Administrative Unit. The investigation of misconduct allegations will be the responsibility of Internal Investigative Units I and II. The number of special agents assigned to this function will be increased to 14, with each of the units comprising a unit chief and six supervisory special agents.

The Adjudications Unit, which will perform the functions of the former ASU, will also receive additional staff resources, increasing from five to eight special agents and from 13 support positions to 18.

The Administrative Unit will provide support to the entire OPR. It will perform a variety of functions previously performed by FBI/OPR or the Administrative Summary Unit, including oversight and audit of the delegation program;(4) research and development of policies and guidelines governing the investigative and adjudicative functions of FBI/OPR; coordination of general legal issues with the Office of the General Counsel; oversight and implementation of case management computer systems; execution of reporting responsibilities to the Department's OPR and Office of the Inspector General; analysis of trends and associated statistical data; and general organizational, personnel and budgetary matters.

The new FBI/OPR will be managed by an Assistant Director, who will report to the Deputy Director of the FBI. It is intended that placing responsibility for the investigative, adjudicative, and administrative functions of the disciplinary process within a single entity, directly responsible to the Deputy Director, will result in a disciplinary process which is more independent, efficient, and concomitantly, more accountable.

Statistical Summary of FBI/OPR Activities in Fiscal Year 1996: FBI/OPR reported that in fiscal year 1996 it opened 413 matters involving allegations of misconduct against FBI employees. This number represented a decrease of 21.5% from the 526 matters opened in the previous year (see table 3, below). The number of matters closed by the office increased 4.2% from 456 in fiscal year 1995 to 475 in fiscal year 1996. As a result, the number of matters pending at the close of fiscal year 1996 decreased from 408 to 345 (a 15.4% decrease).

Table 3. FBI/OPR Caseload in Fiscal Years 1995 and 1996

FY 95 FY 96
 Percent Changes
Matters opened 526 413 -21.5%
Matters closed 456 475 +15.4%
Matters pending 408 345 -15.4%

 
 

Types of Allegations: The 475 FBI/OPR matters closed during fiscal year 1996 involved a wide variety of allegations. As in previous years, the most common types of allegations investigated were unauthorized disclosure of information, misuse of position, drug abuse or drug-related misconduct(5), misuse of government vehicles or other property, and unprofessional conduct. The last category, which accounted for 133 matters closed during fiscal year 1996, encompasses many types of alleged misconduct, from complaints of discrimination to use of improper management methods.

Disposition of FBI/OPR Matters: Of the 475 matters reported closed by FBI/OPR in fiscal year 1996, 121 matters were closed administratively. The remaining 354 cases closed by FBI/OPR in fiscal year 1996 were adjudicated either by the ASU (213 cases) or by field and division managers under the delegation order implemented in fiscal year 1994 (141 cases).

FBI/OPR reported that of the 354 cases adjudicated, misconduct was substantiated in 295 cases involving 358 employees (188 support employees and 170 special agents). A total of 289 FBI employees were disciplined as a result (148 support employees and 141 special agents). In addition, 51 employees resigned and 26 employees retired prior to conclusion of the investigation or the imposition of discipline.
 

Examples of Matters Investigated by FBI/OPR in Fiscal Year 1996

  1. Theft of Computer Equipment. A division at FBI Headquarters found that computer equipment was missing from a storage area. The matter was reported to FBI/OPR, and a closed circuit television camera was installed. Subsequently, a support employee was videotaped removing a computer system from the area. The employee admitted having taken equipment valued at approximately $30,000, some of which was subsequently recovered. The employee was dismissed for theft of government property. The matter was referred to the U.S. Attorney's Office for prosecutive consideration.

  2. Alleged Collusion with Theft Ring. FBI/OPR received an allegation that a special agent had assisted a construction equipment theft ring by removing reports of stolen equipment from the National Crime Information Center (NCIC) to facilitate the resale of the equipment. Investigation disclosed that the allegation was based on a comment overheard by a third person. The individual who had made the comment stated in court that he had no information to support the allegation and had merely been speculating. The matter was closed administratively.

  3. Misuse of Government Vehicle. A special agent, while driving a government vehicle in which several members of his family were riding as passengers, was involved in a collision. The agent asserted that he used the vehicle because he had no other vehicle available to him at the time. The agent was suspended without pay for 30 days for misuse of an FBI vehicle.

  4. Unauthorized Disclosure of Investigative Information. FBI/OPR received an allegation that a special agent had disclosed information about pending FBI search warrants to family members, who in turn provided that information to the subjects of a drug investigation, compromising the planned execution of the search warrants. The agent's relatives confirmed that the agent had given them the information. The agent, after initially denying the allegation, took a polygraph test and was determined to be deceptive. The matter was referred to the U.S. Attorney's Office for prosecutive consideration. The agent was dismissed from the FBI for unauthorized disclosure of information.

  5. Misappropriation of Government Funds. According to information received by FBI/OPR, a special agent posted overseas misappropriated government funds and falsified various documents, including vouchers he submitted for personal travel expenses. The agent admitted falsifying vouchers on numerous occasions and engaging in other misconduct. He was placed on administrative leave pending conclusion of the investigation, but elected to retire before the investigation was completed. Prosecution was declined by the Department of Justice. The FBI is seeking to recover the fraudulently obtained funds from the former agent.

  6. Abuse of Subordinate Employee. A special agent serving as a senior manager was alleged to have maintained an improper relationship with a subordinate employee, and to have engaged in physically abusive behavior toward that employee in the workplace. An investigation confirmed the existence of the superior-subordinate relationship, several instances of physical abuse of the subordinate employee in FBI office space, and other unprofessional conduct by the agent. The agent, who declined to be interviewed and asserted his Fifth Amendment right in view of potential assault charges, retired prior to the matter's being adjudicated. Prosecution was declined.

 

Drug Enforcement Administration
Office of Professional Responsibility

The Drug Enforcement Administration's Office of Professional Responsibility (DEA/OPR), a component of the Inspection Division, is responsible for investigating misconduct allegations against employees of the DEA. Four additional inspector positions were added to DEA/OPR in fiscal year 1996, bringing the staffing level of that office to 45 full-time employees (including 32 agents and 13 non-agent employees), and 3 contract employees. The DEA/OPR staff is distributed among its offices in Los Angeles, Miami, Newark, and DEA Headquarters in Washington.

Significant Initiatives in Fiscal Year 1996: As we reported in previous annual reports, DEA/OPR increased its staff and its employee training in the past two fiscal years. In fiscal year 1996, DEA/OPR provided additional specially designed training to its staff, including a five-day seminar in interview and interrogation techniques; a three-day seminar on adverse actions; and a three and one-half day seminar on sexual harassment and other legal and policy topics relevant to the office's mission.

In fiscal year 1996, DEA/OPR published an annual report on integrity issues throughout the agency. The report examined agency-wide programs affecting employee integrity including internal integrity investigations, the disciplinary process, and the recruitment and background investigation processes for special agents. It also discussed improvements that have been implemented to strengthen the internal investigative and disciplinary processes and to ensure that only highly qualified applicants are hired by DEA.

DEA/OPR also continued to work toward its goal of completely redesigning its current case-tracking system, working closely with DEA's Office of Information Systems and the contractor selected to design a system based on specific requirements. The new system will greatly enhance DEA/OPR's ability to store case-specific data and retrieve that data more easily. The new system will provide DEA/OPR with the capability to retrieve data not currently accessible in any automated fashion, and to develop customized reports on, for example, the number of employees named as subjects in more than one DEA/OPR investigation, the categories of allegations investigated, and the status of investigations. When the system is completed, the DEA/OPR field offices will have access to the system.

In fiscal year 1996, DEA revised many internal training courses to include instruction on integrity and ethics issues. DEA/OPR officials provided formal training for DEA agents, investigators and supervisors. In addition, DEA/OPR has increased its participation in management conferences, thereby providing an effective vehicle for discussion of professional responsibility issues between DEA/OPR and field managers.

In fiscal year 1995, DEA/OPR developed an OPR Handbook for Inspectors to provide guidance and standardize procedures for conducting investigations. In fiscal year 1996, this handbook was revised to clarify several issues and update policy and procedural changes. In addition, at the request of the U.S. Customs Service, DEA/OPR met with the U.S. Customs Service Office of Internal Affairs to discuss the development of a handbook for that office using the DEA/OPR Handbook as a model.

Statistical Summary of DEA/OPR Activities in Fiscal Year 1996: During fiscal year 1996, DEA/OPR opened 283 new matters;(6) and closed 382 matters, 31% more than the 292 matters closed in fiscal year 1995. This notable increase in closings coupled with a 24% decline in the number of new PR investigations opened resulted in a reduction of 29% in the number of matters pending at the close of the fiscal year, from 238 in fiscal year 1995 to 169 in fiscal year 1996 (see table 4, below). The most common types of misconduct allegations received during the year were unprofessional conduct, loss or theft of defendants' property or funds, unauthorized disclosure of information, and falsification of official documents.

Table4. DEA/OPR Caseload in Fuscal Years 1995 and 1996
FY 95 FY 96
 Percent Changes
Matters opened 371 283 -29%
Matters closed 292 382 +31%
Matters pending 238 169 -29%

 

Misconduct allegations were substantiated in 94 (25%) of the 382 matters closed in fiscal year 1996. As a result of these findings, 109 employees;(7), including 81 agents and 28 non-agents, were disciplined. Thirty-two employees resigned or retired before completion of the investigation or imposition of discipline.
 

Examples of Matters Investigated by DEA/OPR in Fiscal Year 1996

  1. Theft of Government Funds. Field managers notified DEA/OPR that an audit of files on government vehicles disclosed that a DEA employee had submitted an unusually large number of charges for repairs and maintenance for several vehicles. DEA/OPR's investigation revealed that the employee had submitted numerous false claims for such expenses between 1993 and 1996, receiving approximately $30,000 from DEA as a result. The employee was arrested by DEA/OPR, and resigned from DEA. The employee pled guilty to one count of theft of government property and was sentenced to two years of incarceration (suspended), six months of house arrest, and two years of supervised probation, and ordered to repay the government $30,000.

  2. Misuse of Official Position and Improper Association. DEA/OPR initiated an investigation based on separate complaints received from two women, both confidential sources, that the same DEA employee was sexually involved with them. One complainant also alleged that the DEA employee had used cocaine in her presence. The investigation revealed that the employee had engaged in an intimate relationship with one of the women and that he had led her to believe that criminal charges were pending against her. The investigation also revealed that the employee had improperly reported the dates and details of the seizure of currency; had improperly handled and not properly documented the acquisition of non-drug evidence; and had allowed a non-DEA employee access to his office voice mail messages which frequently contained messages related to investigative matters. The employee was removed from employment with DEA.

  3. Alleged Corruption. DEA/OPR received an allegation from the FBI that a DEA employee may have compromised an FBI wire intercept, that an FBI investigation had obtained evidence of telephone traffic between the DEA employee's home telephone number and the residence of the FBI's subject, and that the DEA employee appeared to be living beyond his means. The investigation revealed that the DEA employee had a prior working relationship with the FBI subject and that the DEA employee's children and the subject's children were acquainted and attended school together. It was determined that the telephone contact noted during the FBI investigation was a result of the children discussing school matters. No evidence was found to substantiate the allegation that the DEA employee may have compromised the wire intercept, and FBI research indicated that technical problems could have caused the possible compromise. Finally, a review of the DEA employee's credit history and real estate holdings did not substantiate the allegation that he was living beyond the level supported by his salary and other legitimate income. A letter of clearance was issued to the employee.

  4. Conduct Unbecoming a DEA Employee. DEA/OPR initiated an investigation based on allegations that a DEA employee had sexually harassed DEA employees and contract workers on numerous occasions. The investigation revealed that despite counseling, the DEA employee engaged in a pattern of offensive behavior toward female employees in the workplace. The employee was removed from employment with DEA.

  5. Failure to Follow Instructions of a Supervisor and Failure to Follow Written Instructions. DEA supervisors complained that during the course of an undercover investigation, a DEA employee had improperly distributed drugs, failed to follow directions, and exercised poor judgment. The DEA/OPR investigation revealed that the employee had disregarded the supervisor's specific directions in several aspects of the case. It was established that the employee had failed to submit an operational plan for supervisory approval and to record or otherwise corroborate telephone contacts between a confidential source and the target of the investigation as instructed by the supervisor. In addition, without obtaining proper authorization, the employee had instructed the confidential source to return cocaine to the target of the investigation instead of seizing it. The employee received a 10-day suspension.

  6. Unauthorized Disclosure of Information. An allegation was received that a DEA employee had attempted to obtain DEA sensitive information for personal gain. The employee had requested copies of DEA investigative reports stating that the reports had been requested by a local sheriff's department which was conducting an investigation of the named individual. The investigation revealed that the employee had, through a series of misrepresentations, attempted to obtain copies of several DEA investigative reports involving a relative of the DEA employee. The employee intended to provide the information to an attorney representing another family member in civil proceedings regarding the estate of a deceased relative. The investigation also revealed that on two separate occasions, the employee had accessed DEA information systems and made inquiries concerning the relative, and had subsequently disclosed the information without authorization. The employee was dismissed from DEA.

 

Conclusion

The 1996 fiscal year was OPR's first full year under the Attorney General's order focusing the Office's mission on the investigation of allegations of misconduct by Department attorneys in connection with the exercise of their authority to investigate, litigate, or render legal advice. OPR's attorney and support staff were increased during the period, which enabled the Office to address misconduct allegations promptly and reduce significantly the number of matters pending. The staff increase also permitted OPR to perform additional functions assigned to the Office, including preparation of public summaries of OPR investigations and liaison with state bar licensing authorities.

The FBI continued to implement the reorganization of FBI/OPR that was initiated in 1995. The FBI/OPR staff was also increased during fiscal year 1996. OPR will continue to monitor the results of the reorganization and its impact on that office's operations in the coming fiscal year.

The staff of DEA/OPR was increased during the fiscal year and the office continued its implementation of a new computerized case-tracking system which will be accessible to both DEA Headquarters and branch offices. The increase in DEA/OPR staffing noted in last year's report appears to have resulted in a notable increase in the number of matters closed during the 1996 fiscal year.

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1. OPR is not required to recommend a range of discipline when it finds performance-related deficiencies.

2. In 13 other matters closed during the period, the subject attorney was found to have exercised poor judgment. These matters were reported to Department supervisors as performance, rather than misconduct, issues. Under OPR's previous statistical reporting system, such matters were reported as matters in which the allegations were substantiated.

3. All of the subjects in the cases discussed below and in the sections of this report on the FBI's OPR and the DEA's OPR are referred to by the masculine pronoun regardless of the gender of individual subjects in order to protect their privacy.

4. As described in this Office's fiscal year 1994 report, authority to adjudicate certain misconduct cases previously adjudicated by the Administrative Summary Unit was delegated to field office and headquarters division managers pursuant to a policy implemented on February 23, 1994. The delegation policy applies to cases which according to FBI precedent call for a penalty of suspension of 14 days or less. Certain offenses were exempted from the delegation order and must be adjudicated by ASU (or the Adjudications Unit, under the new plan), regardless of the anticipated severity of the disciplinary action. These offenses include discriminatory conduct such as sexual harassment, drug-related misconduct, failure to cooperate or lack of candor during an administrative inquiry, voucher fraud or other falsification of reports, shooting-related matters, theft, and felony arrests.

5. Of the 55 cases involving allegations of drug abuse or drug-related misconduct, 4 involved special agents and 51 involved support employees.

6. These figures represent matters designated Professional Responsibility (PR) Investigations by DEA/OPR. In addition to the 283 PR investigations opened in fiscal year 1996, DEA/OPR opened 113 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 113 general files opened in fiscal year 1996, 26 were converted to PR investigations and are reflected in the number of PR investigations opened during the year.

7. This number is larger than the number of matters in which misconduct was substantiated due to the fact that some matters involved more than one employee.



Updated page January 30, 1998
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