Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Disciplinary System
Evaluation and Inspections Report I-2005-009
Office of the Inspector General
A federal agency may impose discipline when an employee’s misconduct interferes with the agency’s ability to carry out its mission. 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 (penalties ranging from letters of reprimand to suspensions of 14 days and less) and adverse actions (suspensions of greater than 14 days, demotions, and removals).6 In addition to formal disciplinary action, agencies may also impose informal discipline, such as letters of caution.
Agencies have discretion in determining disciplinary penalties; the only requirement is that the penalty be reasonable. To help determine reasonableness, in a 1981 decision the Merit Systems Protection Board established 12 factors, known as the Douglas Factors, for agency officials to consider when determining disciplinary actions.7 The Douglas Factors include information such as the employee’s past disciplinary record and the nature and seriousness of the offense. The Douglas Factors may be used to mitigate (reduce) a proposed penalty. For example, a long-term employee with no prior disciplinary history and an excellent performance record may receive a mitigated penalty, while another employee committing the same offense who has been disciplined previously and has a poor work record would not. See Appendix I for a description of the Douglas Factors.
Overview of the ATF
The ATF’s mission is “to conduct criminal investigations, regulate the firearms and explosives industries, and assist other law enforcement agencies” as part of the U.S. government’s effort to counter terrorism, reduce violent crime, and protect the public.8 To support its mission, the ATF employs approximately 5,000 staff, each assigned to one of the ATF’s seven directorates. Field Operations is the largest directorate and has primary responsibility for administering the ATF’s 23 Field Divisions.9
Overview of the ATF’s Disciplinary System
The ATF currently uses two separate processes to investigate and adjudicate employee misconduct cases. The first is a centralized process, administered by headquarters officials. This process routes relatively serious misconduct cases through the Investigations Division, the Professional Review Board, and the “Bureau Deciding Official” for investigation and adjudication. The second process is decentralized in which local managers investigate and adjudicate minor misconduct cases, with the assistance of the Employee Labor Relations Team (ELRT) located in headquarters.
Prior to June 2003, the ATF relied on local managers to decide discipline for misconduct cases in the centralized process. Since June 2003, the ATF has been testing a pilot project in which a single Bureau Deciding Official decides discipline for all misconduct cases in the centralized process. The ATF modeled this disciplinary process on the Drug Enforcement Administration’s centralized process for handling employee misconduct cases.10 The use of local deciding officials in the centralized process has been temporarily suspended until ATF management determines whether it will formally implement the Bureau Deciding Official pilot project. Figure 1 provides a general overview of the ATF’s disciplinary system.
The Reporting of Misconduct Allegations. ATF Order 2130.1 requires that any allegation or information that the ATF’s standards or rules of conduct have been violated must be promptly reported by the employee having the information to the ATF Investigations Division. The Order also requires that any questions about whether the information or allegation is a matter for administrative handling or investigation will be resolved by discussion between the appropriate administrative official and the ATF Investigations Division.
In fiscal year (FY) 2004, the ATF Investigations Division received and reviewed 781 misconduct allegations; 86 resulted in ATF Investigations Division investigations. The ATF Investigations Division typically receives misconduct allegations via telephone or e-mail. The allegations are recorded on incident reports (ATF Form 8600.39). These incident reports summarize and document such information as when the allegation was reported, who reported the allegation, the circumstances surrounding the allegation, and the investigator recording the information. Information from the incident reports are entered into the ATF Investigations Division’s data management system.
The ATF is required to report allegations of misconduct to the Department of Justice’s (Department) Office of the Inspector General (OIG). The ATF Investigations Division is required to report any allegation of serious misconduct to the OIG immediately and subsequently provide the related incident report. The ATF also informs the OIG of misconduct allegations not categorized as serious but, by mutual agreement, does so when an OIG Special Agent visits the ATF Investigations Division’s offices, usually on a weekly basis. The OIG Special Agent collects, reviews, and discusses any misconduct allegations or issues relating to recent incident reports. After reviewing an incident report, the OIG determines whether an allegation requires (1) an OIG investigation; (2) an OIG review of the completed ATF investigation; or (3) no further involvement by the OIG.
If the OIG determines it will not investigate the allegation, the ATF Investigations Division’s Special Agent in Charge reviews the allegation and determines whether the case will be (1) investigated by the Investigations Division; (2) referred to local management for an investigation that will be monitored by the Investigations Division; or (3) labeled “no action,” requiring no further involvement by the Investigations Division.
The misconduct allegations investigated by the OIG or the ATF Investigations Division generally are the more serious allegations. Those offenses include embezzlement; attempted bribery; acceptance of bribes, gifts, or gratuities; extortion; fraud against the government or conspiracy to commit the foregoing offense; lying under oath; refusal to cooperate with an administrative or other inquiry when required to do so by law or regulation; falsification of criminal investigative reports; theft of government funds or property; excessive tardiness or other misconduct related to attendance or leave; criminal, dishonest, infamous, or notoriously disgraceful conduct; refusal to furnish testimony; misuse of a government-owned vehicle; abuse of narcotics or other controlled substances; and discourteous conduct to the public confirmed by an immediate supervisor’s report of four such instances within any 1-year period or any other pattern of discourteous conduct.
When the ATF Investigations Division determines allegations are not serious, it refers them to local management for investigation or labels them “no action.” According to ATF Order 8610.1A, “certain minor infractions of the rules of conduct may be investigated by the appropriate [local ATF] manager.” Minor misconduct allegations include tardiness for work, insubordination, and failure to complete work assignments. The label “no action” allows local managers to handle the allegation in a manner that they believe is appropriate. In these cases, local managers may choose not to pursue the allegation (for example, if the allegation does not provide enough information to warrant investigation) or may contact the ELRT for advice and assistance as they proceed with the investigation and adjudication under the decentralized process.
The Centralized Process
The centralized disciplinary process is administered by officials and staff at ATF Headquarters. The centralized process currently involves three headquarters entities: (1) the ATF Investigations Division, (2) the Professional Review Board, and (3) the Bureau Deciding Official.
The ATF Investigations Division investigates the misconduct allegation and compiles the investigations report. The Investigations Division is located within the Office of Professional Responsibility and Security Operations. The Investigations Division is responsible for investigating, tracking, and reporting all allegations of misconduct involving ATF employees, as set forth in ATF Order 8610.1A. The Investigations Division’s other responsibilities include tracking and investigating accidents involving government-owned vehicles and shooting incidents involving ATF employees. In addition to the Special Agent in Charge and the Assistant Special Agent in Charge, at the time of this review, the Investigations Division had a staff of approximately 12 investigators to conduct internal investigations.11 Staffing fluctuates primarily based on caseload.
The Investigations Division opened 127 misconduct investigations in FY 2002, 91 in FY 2003, and 86 in FY 2004. Workload, case complexity (with the more complex cases typically being assigned to more senior investigators), and seriousness of the allegation influence the prioritization and internal assignment of investigations. The Special Agent in Charge monitors the progress of the Investigations Division’s open investigations by conducting monthly briefings with the investigators assigned and recording the case status in a management control log. Allegations referred to local management for monitored investigation are tracked separately.
ATF Order 8610.1A, “Internal and Other Investigations,” describes requirements for the Investigations Division’s misconduct investigations. Each investigation must result in a case file with a report on the investigation and relevant exhibits. Before an investigation is closed, the case file contents are reviewed and approved by the Special Agent in Charge and the Assistant Director of the Office of Professional Responsibility and Security Operations. Incomplete investigations are returned to the investigator for additional investigation and documentation. Once approved, the completed case file is forwarded to the Professional Review Board. At this point, the centralized process’s investigation phase ends and the adjudicative phase begins.
The Professional Review Board proposes discipline or clearance. On August 1, 1995, ATF Brief 2750.1 officially established the Professional Review Board “to ensure that allegations of employee misconduct are fairly reviewed and expeditiously handled and that penalties for misconduct are fairly administered.” The Professional Review Board is charged with reviewing “incidents of misconduct” that are the subject of an investigation by the Investigations Division or the OIG and are documented in a report of investigation. Prior to the Professional Review Board’s creation in 1995, all misconduct cases were adjudicated by local management.
The Professional Review Board is currently located within the ATF’s Management Directorate and consists of four members and one Chair. All five members have an equal vote in the proposal process; however, the Chair administers the process and signs all resulting proposal letters.
The Chair is a full-time, permanent, grade 15 position. The remaining four members serve on the Professional Review Board in addition to their permanent, full-time senior management assignments. This duty is temporary and usually lasts from 12 to 18 months. The ATF tries to stagger the rotation of Professional Review Board membership to ensure that it has enough experienced voting members serving at all times.
The Deputy Director of the ATF selects the four Professional Review Board members from a pool of grade 15 and Senior Executive Service supervisors and managers nominated by the seven ATF Assistant Directors. At least two Professional Review Board members serving at any one time must be series 1811 Criminal Investigators, and one member must be a series 1854 Inspector. At least one, but no more than two, members must be in the Senior Executive Service. For those cases involving misconduct by a Senior Executive Service employee, the Senior Executive Service Professional Review Board member serves temporarily as the Chair.
The Professional Review Board is assisted by three Employee Relations Specialists.12 The specialists assist in researching and preparing background information on each case and attend Professional Review Board meetings in an advisory/support capacity. The specialists are also responsible for collecting, entering, and maintaining case-related information in the disciplinary case file database.
Additionally, the Professional Review Board receives assistance, as required, from representatives of the ELRT, the Office of Chief Counsel, and the ATF Office of Equal Employment Opportunity. These representatives review each Investigations Division investigation file and attend the Professional Review Board meetings to provide counsel or guidance on certain cases or proposed penalties as required. These representatives do not vote.
When the Professional Review Board receives a completed investigation file from the Investigations Division, the file is assigned to one of the three specialists for tracking and processing throughout the proposal and decision-making phases. A copy of the investigation file is also provided to each of the five Professional Review Board members and other participants (such as the Office of Chief Counsel) at least one week in advance of the scheduled meeting.
The Professional Review Board meets approximately every 6 weeks to review and determine proposed penalties (if warranted) on all investigation files that have accumulated during that time. During the scheduled meeting, the Professional Review Board proposes discipline for all investigation files that have been distributed to the members. Generally, the Professional Review Board adjudicates up to 15 cases per meeting. If an unusually large number of investigation files come in from the Investigations Division, the Professional Review Board may schedule an additional meeting to avoid a backlog.
Prior to the meeting, the Professional Review Board specialists compile a summary of each subject’s investigation file and disciplinary history, as well as information on past discipline proposed for similar cases. The Chair meets with the specialists and other headquarters officials who serve as advisors to the Professional Review Board to review this information and determine how best to initiate discussion of the case during the scheduled meeting.
During the meeting, the five voting members discuss and determine which charges addressed in the investigation file are supportable and then vote on a proposed penalty. While a majority vote is all that is required, the Professional Review Board attempts to obtain unanimous agreement on the proposed penalty.
On rare occasions (perhaps two to three cases per year), the Professional Review Board postpones a vote. Generally, this is done because the investigation file does not contain sufficient information for the Professional Review Board to vote on the case or because the Professional Review Board is aware that information on a related case is forthcoming. When this occurs, the Professional Review Board may request that the Investigations Division provide a supplemental investigation or that the investigator in charge of the case answer the Professional Review Board’s questions.
After the Professional Review Board adjourns, the specialists draft a proposal letter for each case discussed during the meeting.13 If the Professional Review Board decides on a letter of clearance (the allegation could not be sustained on the evidence presented), caution, admonishment, or reprimand, the specialists draft the letter and forward it to the Bureau Deciding Official for review, signature, and issuance to the employee.
If the Professional Review Board proposes a suspension, a reduction in pay or grade, or a removal, the specialist drafts the proposal letter and submits it to the Chief of the ELRT for a “technical review to determine the adequacy of the record and to ensure uniformity of proposals.”14 Proposal letters involving discipline exceeding a 14-day suspension, a reduction in pay or grade, or a removal are also forwarded to the Office of Chief Counsel, where they are reviewed for “legal sufficiency.” After review, the proposal letter is signed by the Chair. The signed proposal letter and a copy of the investigation file are provided to the employee and the deciding official. Employees are required to sign an acknowledgement of receipt form indicating that they have received the proposal package. At this point, the proposal phase of the centralized process ends, and the decision phase begins.
The Bureau Deciding Official decides discipline or issues clearance. On June 2, 2003, ATF Brief 2141.1 established the Bureau Deciding Official pilot program to promote consistent and prompt adjudication of proposals issued by the Professional Review Board. Under the pilot program the ATF Director appoints one permanent, full-time, grade 15 or Senior Executive Service manager as the Bureau Deciding Official. The Bureau Deciding Official is assigned to the Office of the Director and serves as the deciding official for all Professional Review Board proposals except for those designated as “management referrals.”
The Bureau Deciding Official pilot program fully centralized the process for determining final discipline for those misconduct allegations investigated by the Investigations Division and adjudicated by the Professional Review Board. The ATF’s Executive Staff originally was to determine whether the pilot program should be implemented on a permanent basis by December 2003.15 Instead, the Executive Staff decided to extend the pilot program indefinitely for additional evaluation.
The Bureau Deciding Official becomes actively involved in the adjudication phase of the centralized disciplinary process once the Professional Review Board has issued a proposal letter to the employee. A Professional Review Board specialist then delivers a copy of the Investigations Division’s investigation file and the Professional Review Board’s proposal letter to the Bureau Deciding Official. Once employees receive a proposal letter recommending a suspension, demotion, or removal, they have the opportunity to respond orally via telephone, in writing, or both. The Bureau Deciding Official reviews these responses.
The time allowed for the response depends on the facts and circumstances of the case. The employee is given the opportunity to review the material relied upon by the Professional Review Board to support the proposed discipline, to prepare an answer, and to secure affidavits. At least 7 days is given, although 15 days is typical.16
Any oral response by the employee is recorded by a Professional Review Board specialist, and the employee has an opportunity to comment on the specialist’s written summary before the Bureau Deciding Official renders his decision. The Office of Chief Counsel also is present during oral responses (conference call) for cases involving a proposed adverse action.
Once any oral or written reply has been submitted by the employee, the Bureau Deciding Official reviews it and, using a Douglas Factors worksheet (see Appendix I for the Douglas Factors), considers the mitigating or aggravating factors that the employee’s reply presents. As part of the review process, the Bureau Deciding Official may reference the subject’s official personnel folder to review factors such as job performance, promotion eligibility, and any prior disciplinary actions. The Bureau Deciding Official also considers the level of discipline that the ATF meted out for similar types of offenses in the past, based on a consistency review of previous cases. The Bureau Deciding Official documents each of the factors that was considered on the Douglas Factors worksheet and then signs and dates the form. The Bureau Deciding Official can mitigate the Professional Review Board’s proposed penalty, but may not increase it.
After determining the appropriate penalty, the Bureau Deciding Official renders a final decision. The Professional Review Board specialist drafts a decision letter detailing the reasons, especially when mitigation has occurred, for the discipline that is being imposed, including projected dates when the punishment will take effect. The Chief of ELRT reviews the decision letters imposing disciplinary action; the Office of Chief Counsel reviews those imposing adverse actions. After these reviews are complete, the Bureau Deciding Official signs the decision letter and sends it to the employee.17
Local managers decide discipline with ELRT input. Prior to June 2003, local managers were responsible for making final disciplinary decisions. Reliance on local managers to decide discipline for the centralized process was suspended after the Bureau Deciding Official pilot project became operational in June 2003. Prior to June 2003, when the Professional Review Board proposed a penalty in a misconduct case, the assigned ELRT specialist identified and notified the appropriate local manager – usually the Special Agent in Charge or Assistant Special Agent in Charge – that he or she must serve as the deciding official for the case. The ELRT specialist then sent a copy of the proposal letter and the Investigations Division investigation file to the deciding official to reference when determining the appropriate penalty.
Prior to June 2003, the Professional Review Board forwarded all proposal letters, including letters of clearance, caution, admonishment, and reprimand, to the local manager acting as the deciding official for review, signature, and issuance to the employee. The local deciding official could contact the ELRT specialist to discuss any issues or concerns with the case.
If the Professional Review Board proposed a suspension, reduction in pay, or removal, the local deciding official was responsible for considering the subject’s oral and or written reply, applying the Douglas Factors, and deciding what discipline to impose. Once the deciding official determined the penalty, the assigned ELRT specialist drafted the decision letter for review, signature, and delivery to the employee.
The Decentralized Process
Misconduct allegations that are not investigated by Investigations Division or the OIG are handled through a separate, decentralized disciplinary process. The decentralized process involves minimal involvement or control by headquarters entities, except for the ELRT’s advice and assistance, and relies primarily on local management to conduct the investigation, proposal, and decision phases of the process. The evidence collection, proposal and decision may all be handled by the same official in cases that result in discipline involving a suspension of 14 days or less. Approximately 630 ATF supervisory-level employees are eligible to propose or decide misconduct cases in the decentralized process.
Specialists assigned to the ELRT provide assistance and guidance to local management in the decentralized process. The ELRT falls under the Personnel Division, within the Management Directorate. The Chief of the ELRT oversees a staff of four employee relations specialists, two labor relations specialists, one administrative assistant, and two part-time students.18
ELRT specialists provide advice to local management throughout the decentralized process on how to identify and report misconduct, provide the necessary types of documentation to substantiate the alleged charges, and prepare and draft proposal and decision letters. While ELRT specialists provide advice to local management, it is important to note that they serve only in an advisory capacity and cannot overrule or directly challenge actions taken by local management.
The ELRT advises managers on collection of supporting documentation. The decentralized process does not require local management to conduct structured misconduct investigations, such as those required and produced by the Investigations Division in the centralized process. On the basis of the ELRT’s advice, the local manager may collect voluntary statements from the subject or witnesses and gather supporting documents, such as e-mails, records, reports, or activity logs, depending on the charges. There is no written guidance indicating how this supporting documentation should be collected. Our interviews with local management showed that different offices employ different methods of determining who collects the supporting documentation for the case and who reviews the documents and evidence collected.
Once documentation supporting an allegation of misconduct has been collected and reviewed, the documentation is forwarded to the ELRT for its review and inclusion in a disciplinary file. If the ELRT believes that the documentation is insufficient to justify disciplinary action, it will recommend that additional information be gathered, if possible, or it will close the case. If the case is closed, no case-related information is created or entered into the disciplinary case file database, and no disciplinary file is created. If sufficient documentation is collected to substantiate the charges, then the ELRT assists local management with the adjudication phase of the decentralized process.
Local manager proposes discipline with ELRT input. For decentralized cases, the ATF permits a wide range of specified officials to act as both the proposing and deciding official for cases that result in disciplinary actions (suspensions of 14 days or less). Local management usually determines who will serve as the proposing official for the case. The proposing official and the ELRT normally discuss and agree on what the penalty should be. The ELRT recommends an appropriate level of proposed discipline based on the employee’s disciplinary history, as well as information on past discipline proposed for similar cases. The proposing official considers the ELRT’s recommendations and determines the appropriate proposed penalty.
Once the proposing official has determined the proposed penalty, the ELRT specialist either drafts the proposal letter or reviews the proposing official’s draft to ensure it meets the standards for content and language. If a proposed penalty appears unreasonable, the ELRT discusses this with the proposing official. However, the proposing official has the final authority to determine the level of discipline that will be proposed in the letter. The Chief of the ELRT reviews all proposal letters, and the Office of Chief Counsel reviews proposal letters involving adverse actions. Once the proposing official signs the proposal letter, it is issued to the employee. Letters of caution, admonishment, or reprimand are issued directly to the employee without a proposal letter.
Local manager decides discipline with ELRT input. According to the ELRT, the same individual can serve as both the proposing and deciding official on the same case where a 14-day suspension or less is being imposed, unless the individual requests not to serve in both capacities. If the role of deciding official is filled by someone other than the proposing official, the deciding official receives a copy of the proposal letter and the supporting documentation to reference during the decision-making process.
The deciding official is not required to hear the subject’s oral response. This responsibility may be delegated to someone else, as long as they are “administratively superior to and organizationally separate from the employee.”19 This individual is responsible for providing a written record of the employee’s response for consideration in the case. Once the deciding official receives any oral or written reply from the employee, the deciding official must consider any mitigating factors that could affect the level of discipline to be imposed. The deciding official cannot increase the proposed penalty, but may mitigate the proposed penalty, if appropriate.
As in the proposal phase, the ELRT specialist may advise the deciding official on the appropriate level of discipline, but the deciding official ultimately determines what the penalty will be. Any major disagreements between an ELRT specialist and the deciding official can be elevated to higher ranking officials for resolution. Once a decision has been made, the ELRT specialist assists the deciding official in preparing a decision letter. According to ATF Order 2750.1C, the Chief of the ELRT reviews all decision letters. The Office of Chief Counsel reviews all decision letters involving adverse actions. The deciding official signs the decision letter and issues it to the employee.
Disciplinary Files and Database
Once a decision has been rendered on an employee misconduct case, the Professional Review Board or ELRT specialist responsible for the case creates an official disciplinary file. The ELRT maintains all of the ATF’s official disciplinary files from the centralized and decentralized disciplinary processes. These files contain all official adjudicative and grievance documentation, as well as evidence sustaining misconduct allegations handled through the decentralized process.20 The disciplinary files are maintained at ATF headquarters for approximately 4 years; older files are archived. The Investigations Division maintains its employee misconduct investigation files separately. The Investigations Division’s investigation files can be cross-referenced with the disciplinary files by employee name.
ELRT specialists are also responsible for entering and maintaining case-related information from their assigned employee misconduct cases in the disciplinary system database. There are no established standards or procedures for entering, maintaining, or reviewing case information in the database. Our interviews with Professional Review Board and ELRT specialists indicated that information can be entered as it becomes available, at specific phases of the process, or at the end of the adjudicative process.
To officially close an employee misconduct case, the discipline must be imposed.21 This is done either by placing a copy of a letter of reprimand in the employee’s official personnel folder or initiating a Standard Form-50 (SF-50) for suspensions, reductions in pay, or removals.22 Letters of reprimand remain in an employee’s official personnel folder for up to 2 years. The SF-50 becomes a permanent part of the employee’s official personnel folder and serves as documentation that the employee officially received the punishment set forth in the decision letter.