U.S. Department of Justice

Office of the Inspector General 

U

O.Sff. Dice epo

a

f

r

 ttmehe nt oInfs

 Jpuecsticte or General

The Handling of Sexual Harassment
 

and Misconduct Allegations by the 

Department’s Law
 

Enforcement Components
 

Evaluation and Inspections Division 15-04 March 2015 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXECUTIVE SUMMARY
 

INTRODUCTION 

The Office of the Inspector General (OIG) conducted this review to 

assess how the Department of Justice’s (Department) four law 

enforcement components respond to sexual misconduct and harassment 

allegations made against their employees. This review examined the 

nature, frequency, reporting, investigation, and adjudication of such 

allegations in the Bureau of Alcohol, Tobacco, Firearms and Explosives 

(ATF); the Drug Enforcement Administration (DEA); the Federal Bureau 

of Investigation (FBI); and the United States Marshals Service (USMS). 

Issues That Arose During the Review 

The OIG’s ability to conduct this review was significantly impacted 

and delayed by the repeated difficulties we had in obtaining relevant 

information from both the FBI and DEA as we were initiating this review 

in mid-2013.1 Initially, the FBI and DEA refused to provide the OIG with 

unredacted information that was responsive to our requests, citing the 

Privacy Act of 1974 and concerns for victims and witnesses as the 

reasons for the extensive redactions, despite the fact that the OIG is 

authorized under the Inspector General Act to receive such information.2 

After months of protracted discussions with management at both 

agencies, the DEA and FBI provided the information without extensive 

redactions; but we found that the information was still incomplete. 

Ultimately, based on a review of information in the OIG Investigations 

Division databases, we determined that a material number of allegations 

from both DEA and FBI were not included in the original responses to 

our request for the information. 

1 Both the ATF and the USMS provided the OIG with full, complete, and timely 

access to our requests. 

2 See generally Privacy Act of 1974, Pub. L. 93–579, 88 Stat. 1896, 5 U.S.C. 

§ 552a, which governs the collection, maintenance, use, and dissemination of 

personally identifiable information about individuals maintained in systems of records 

by federal agencies, and the Inspector General Act of 1978, § 6(a)(1) (authorizing OIGs 

“to have access to all records, reports, ... documents, papers, ... or other material 

available to the [agency] which relate to programs and operations with respect to which 

that Inspector General has responsibilities under this Act”). Because the OIG is an 

agency within the Department, and handles information it receives consistent with the 

requirements of the Privacy Act, the FBI and the DEA’s failure to provide the 

information to the OIG at the outset was unwarranted. 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We were also concerned by an apparent decision by DEA to 

withhold information regarding a particular open misconduct case. The 

OIG was not given access to this case file information until several 

months after our request, and only after the misconduct case was closed. 

Once we became aware of the information, we interviewed DEA 

employees who said that they were given the impression that they were 

not to discuss this case with the OIG while the case remained open. The 

OIG was entitled to receive all such information from the outset, and the 

failure to provide it unnecessarily delayed our work. 

Therefore, we cannot be completely confident that the FBI and DEA 

provided us with all information relevant to this review. As a result, our 

report reflects the findings and conclusions we reached based on the 

information made available to us. 

RESULTS IN BRIEF 

Although we found there were relatively few reported allegations of 

sexual harassment and sexual misconduct in the Department’s law 

enforcement components for fiscal years 2009 through 2012, our review 

of the handling of these allegations revealed some significant systemic 

issues with the components’ processes that we believe require prompt 

corrective action.3 

Coordination between internal affairs offices and security 

personnel. At ATF, DEA, and USMS, there was a lack of coordination 

between the internal affairs offices that receive sexual misconduct 

allegations and the offices responsible for ensuring that employees meet 

the requirements to hold security clearances. In most cases where 

employees were alleged to have engaged in high-risk sexual behavior, 

security personnel were not informed about these incidents until long 

after they occurred or were never informed, even though such behavior 

presents possible significant security risks.4 By contrast, at the FBI, the 

3 We discuss our findings in the Executive Summary in the order of importance. 

However, the Results of the Review follow the disciplinary process: reporting, security, 

investigation, and adjudication. 

4 “High-risk sexual behavior” is defined in Adjudicative Guidelines for 

Determining Eligibility for Access to Classified Information, as conduct that involves “a 

criminal offense, indicates a personality or emotional disorder, reflects lack of judgment 

or discretion, or may subject an individual to undue influence or coercion, exploitation, 

or duress or raise questions about an individual's reliability, trustworthiness and ability 

to protect classified information.” See generally, Memorandum from Stephen J. Hadley, 

White House Assistant to the President for National Security Affairs, Adjudicative 

Guidelines for Determining Eligibility for Access to Classified Information, December 29, 

2005. 

ii 
 

 

 

 

 

 

 

 

 

 

Internal Investigations Section alerts the Security Division to any 

misconduct allegations it receives so that a determination can be made 

as to whether an allegation raises security risks for the FBI or raises 

concerns about the employee’s continued eligibility to hold a security 

clearance. 

Reporting misconduct allegations to component headquarters. 

ATF and the USMS have clear policies requiring supervisors to report 

misconduct allegations, including alleged sexual misconduct and sexual 

harassment, to their headquarters internal affairs offices. However, we 

found that supervisors sometimes failed to report these allegations, even 

when the subject was alleged to have committed similar misconduct in 

the past. We found that the sexual misconduct and sexual harassment 

reporting policies at the DEA did not clearly delineate what should be 

reported to headquarters and what should be treated as a local 

management or performance-related issue. As a result, DEA supervisors 

exercised discretion in deciding what to report, even when their 

respective offense tables characterized sexual misconduct and sexual 

harassment as prohibited behavior. We also found that FBI sexual 

misconduct reporting policies did not clearly delineate what should be 

reported to headquarters and what should be treated as a local 

management or performance-related issue. However, the FBI does have 

a clear requirement for employees to report all allegations of sexual 

harassment. In all four components, some allegations were not reported 

by headquarters to the OIG when they first occurred. 

The investigative process. ATF, DEA, and FBI have criteria 

regarding the opening at headquarters of investigations into allegations 

of sexual misconduct and sexual harassment. Although ATF generally 

followed its established criteria, we found instances in which the FBI 

failed to follow its criteria and instances where DEA failed to fully 

investigate allegations. The USMS does not have established criteria, but 

generally seemed to make appropriate determinations about when to 

initiate an investigation in such matters. 

The adjudication process. The ATF offense table does not 

contain specific offense categories to address sexual misconduct and 

sexual harassment. The DEA, FBI, and USMS have offense tables that 

contain specific categories for such allegations and provide guidance on 

the appropriate range of penalties that could be imposed. We found that 

the DEA and USMS offense tables do not provide adequate explanations 

of the types of behaviors that warrant possible disciplinary action. In 

some instances, these components applied general offense categories to 

misconduct more appropriately addressed by the specific sexual 

misconduct and sexual harassment offense categories in their offense 

tables. 

iii 
 

 

 

 

 

Component offense tables do not always contain language 

adequate to address the solicitation of prostitutes in jurisdictions 

where the conduct is legal or tolerated. We found that the ATF, DEA, 

and USMS offense tables do not contain specific language to address the 

solicitation of prostitutes abroad, even where the conduct is legal or 

tolerated. Although the FBI offense table contains such a category, we 

found instances where general offense categories were applied instead of 

the specific category. Employees in ATF, DEA, and USMS may not 

receive adequate notice that this conduct is prohibited or of the range of 

penalties that could be imposed for it. 

All of the components have weaknesses in detecting sexually 

explicit text messages and images. For all components, we were 

unable to determine the actual number of instances involving the 

transmission of sexually explicit text messages and images because the 

components do not have adequate technology to enable them to detect 

this type of misconduct. Although the FBI archives and proactively 

monitors its employees’ text messages, there are limitations to its ability 

to use this information, and misconduct investigators at ATF, DEA, and 

USMS cannot easily obtain such text message evidence. These issues 

may hamper the components’ ability to use this type of evidence in 

misconduct investigations, to fully satisfy their discovery obligations, and 

to deter misconduct. 

RECOMMENDATIONS 

We make eight recommendations in this report to improve the law 

enforcement components’ disciplinary and security processes relating to 

allegations of sexual misconduct and harassment. 

iv 
 

 

 

 

 

 

TABLE OF CONTENTS
 

INTRODUCTION.................................................................................. 1
 

SCOPE AND METHODOLOGY OF THE OIG REVIEW........................... 5
 

RESULTS OF THE REVIEW ................................................................. 9
 

CHAPTER 1: THE REPORTING PROCESS........................................ 9
 

CHAPTER 2: SECURITY OF OPERATIONS..................................... 21
 

CHAPTER 3: THE INVESTIGATION PROCESS ............................... 34
 

CHAPTER 4: THE ADJUDICATION PROCESS................................ 39
 

CHAPTER 5: DETECTING AND RETAINING SEXUALLY EXPLICIT 

TEXT MESSAGE EVIDENCE .......................................................... 51
 

CONCLUSION AND RECOMMENDATIONS ........................................ 61
 

APPENDIX 1: METHODLOGY ........................................................... 65
 

APPENDIX 2: LAW ENFORCEMENT COMPONENT DISCIPLINARY 

PROCESSES ..................................................................................... 71
 

APPENDIX 3: LAW ENFORCEMENT COMPONENT OFFENSE 

TABLES – SEXUAL MISCONDUCT AND SEXUAL HARASSMENT ....... 84
 

APPENDIX 4: SEXUAL MISCONDUCT AND SEXUAL HARASSMENT 

OFFENSE CATEGORY ANALYSIS ...................................................... 88
 

APPENDIX 5: DOUGLAS FACTORS................................................... 92
 

APPENDIX 6: ILLUSTRATION OF ACCESS ISSUES........................... 94
 

APPENDIX 7: THE OFFICE OF THE DEPUTY ATTORNEY 

GENERAL’S RESPONSE TO THE DRAFT REPORT ............................. 99
 

APPENDIX 8: OIG ANALYSIS OF THE OFFICE OF THE DEPUTY 

ATTORNEY GENERAL’S RESPONSE................................................ 102
 

APPENDIX 9: THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS 

AND EXPLOSIVES’ RESPONSE TO THE DRAFT REPORT ................ 105
 

APPENDIX 10: OIG ANALYSIS OF THE BUREAU OF ALCOHOL, 

TOBACCO, FIREARMS AND EXPLOSIVES’ RESPONSE.................... 108
 

APPENDIX 11: THE DRUG ENFORCEMENT ADMINISTRATION’S 

RESPONSE TO THE DRAFT REPORT .............................................. 112
 

APPENDIX 12: OIG ANALYSIS OF THE DRUG ENFORCEMENT
 

ADMINISTRATION’S RESPONSE...................................................... 116
 

APPENDIX 13: THE FEDERAL BUREAU OF INVESTIGATION’S 

RESPONSE TO THE DRAFT REPORT .............................................. 121
 
APPENDIX 14: OIG ANALYSIS OF THE FEDERAL BUREAU OF 

INVESTIGATION’S RESPONSE ........................................................ 123
 

APPENDIX 15: THE UNITED STATES MARSHALS SERVICE’S 

RESPONSE TO THE DRAFT REPORT .............................................. 126
 

APPENDIX 16: OIG ANALYSIS OF THE UNITED STATES MARSHALS 

SERVICE’S RESPONSE ................................................................... 129
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

INTRODUCTION
 

The Department of Justice’s (Department) law enforcement 

components are charged with investigating violations of federal law. 

Given the nature of their work, federal law enforcement employees are 

held to the highest standards of conduct and must be accountable for 

their actions both on- and off-duty. 

When employees of law enforcement components commit sexual 

misconduct or sexual harassment, or engage in criminal activity related 

to prostitution or the exploitation of children, it affects the component’s 

reputation, undermines its credibility, and potentially compromises the 

government’s efforts in prosecutions. Sexual misconduct and sexual 

harassment in the workplace also affect employee morale and hamper 

employees’ ability to have and maintain effective working relationships. 

When sexual misconduct involves a criminal element, witness, 

confidential source, informant, or foreign national, it may also affect the 

security of the components’ operations. 

In the past 3 years, there have been allegations of sexual 

misconduct involving law enforcement agents from a Department 

component, as well as from another federal law enforcement agency, that 

have received international media attention. In the wake of our review of 

the alleged sexual misconduct of several DEA Special Agents in 

Cartagena, Colombia, the Office of the Inspector General (OIG) initiated 

this review to assess the nature, frequency, reporting, investigation, and 

adjudication of allegations of sexual misconduct (including the 

transmission of sexually explicit texts and images) and sexual 

harassment in the four Department law enforcement components: the 

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Drug 

Enforcement Administration (DEA); the Federal Bureau of Investigation 

(FBI); and the United States Marshals Service (USMS).5 

5 Since disciplinary systems play a significant role in ensuring the efficiency of 

government services and the fair and equitable treatment of covered employees, the OIG 

previously performed six reviews assessing the disciplinary systems of the law 

enforcement components and the Executive Office for United States Attorneys, 

including the Review of the USAO’s and EOUSA’s Disciplinary Process, I-2014-001, 

February 2014; the Federal Bureau of Investigation’s Disciplinary System, I-2009-002, 

May 2009; Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ 

Disciplinary System, I-2005-009, September 2005; Review of the Federal Bureau of 

Prisons’ Disciplinary System, I-2004-008, September 2004; Review of the Drug 

Enforcement Administration’s Disciplinary System, I-2004-002, January 2004; and 

Review of the United States Marshals Service Discipline Process, I-2001-011, September 

2001. 

1
 
 

 

 

 

 

 

 

 

 

 

 

Sexual Misconduct and Harassment Defined 

For purposes of this review, we utilized the FBI’s definition of 

“sexual misconduct” as “engaging in sexual, intimate, or romantic 

activity in an inappropriate location (such as government spaces, 

government vehicles), or while on duty,” and also included the following 

additional separate offense categories6: 

•	 Rape; 

•	 Sexual Assault; 

•	 Child Pornography; 

•	 Solicitation of Prostitutes; 

•	 Improper Sexual Association with Confidential Sources, 

Witnesses, Informants, and Criminal Elements; 

•	 Inappropriate Relationships; 

•	 Misuse of Government Property (Vehicle or Office Space) for 

Sexual Purposes; 

•	 Misuse of Position to Coerce a Sexual Encounter or 

Relationship; and
 

•	 Sexting (transmission of sexually explicit text, e-mail messages, 

and images with government equipment). 

We used the Equal Employment Opportunity Commission’s (EEOC) 

“Guidelines on Discrimination Because of Sex” to define sexual 

harassment.7 The EEOC Guidelines describe “sexual harassment” as 

“unwelcome sexual advances, requests for sexual favors, and other 

verbal or physical conduct of a sexual nature [as] sexual harassment 

when this conduct explicitly or implicitly affects an individual’s 

employment, unreasonably interferes with an individual’s work 

performance, or creates an intimidating, hostile, or offensive work 

environment.” In cases where the OIG believed the misconduct did not 

rise to the level of sexual harassment, we categorized the conduct as 

“Inappropriate Sexual Comments and/or Gestures,” which comprise 

minor forms of the types of behavior described above. 

Department policy prohibits sexual harassment of employees, 

which, like other forms of harassment, interferes with a productive 

6 FBI Offense Code 5.20, Sexual Misconduct. 

7 The legal framework protecting federal employees from harassment on the 

basis of sex, including employees of the law enforcement components, is contained in 

Section 703 of Title VII of the Civil Rights Act of 1964, the Civil Service Reform Act of 

1978, and 29 C.F.R. § 1604.11 (which contains the Equal Employment Opportunity 

Commission’s (EEOC) Guidelines on Discrimination Because of Sex) (hereinafter “EEOC 

Guidelines”). 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

working environment, interjects irrelevant considerations into personnel 

decisions, and generally demeans the victims of harassment. Further, 

the law enforcement components developed policy in response to a 1993 

mandate from the Attorney General to address this serious form of 

misconduct.8 Appendix 4 contains information about the number of 

sexual misconduct and sexual harassment allegations opened during 

fiscal year (FY) 2009 through FY 2012 by offense category. 

The Disciplinary Process 

The legal framework governing the discipline of most federal service 

employees is contained in 5 U.S.C. Chapter 75 and 5 C.F.R. Part 752.9 

Additional policies and procedures directing how the Department 

handles discipline and adverse actions can be found in Department of 

Justice Order 1200.1.10 This Order outlines the roles and 

responsibilities of management officials seeking to impose formal 

discipline and describes the mechanics of the inquiry, notice, 

adjudication, and grievance process applicable to most Department 

employees. 

The Order also outlines the rights of employees who appeal their 

discipline in administrative proceedings before the Merit Systems 

Protection Board (MSPB) or mediate the decision in binding arbitration.11 

Although the laws and regulations described above provide the general 

framework for Department disciplinary systems, it is within the 

component’s discretion to tailor its system to meet its organizational 

needs. 

8 See Memorandum on Prevention of Sexual Harassment in the Workplace, 

Attorney General, Janet Reno, June 29, 1993, as amended, December 14, 1998. See 

also ATF Order 2130.1A, Conduct and Accountability, Section 14 Discrimination and 

Harassment, February 7, 2012; DEA Policy Statement on Sexual Harassment in the 

Workplace, June 13, 2011; FBI Policy on Harassment, February 14, 2005; and the 

USMS Equal Employment Opportunity Policy Statement, May 3, 2012. 

9 5 U.S.C. §§ 7501-7504, 7511-7514 (2009); 5 C.F.R. § 752.201-752.606 (2009). 

10 DOJ Order 1200.1, Chapter 3-1, Discipline and Adverse Actions (August 25, 

1998). 

11 The MSPB is an independent, quasi-judicial agency in the Executive Branch 

that was established by Reorganization Plan No. 2 of 1978, which was codified by the 

Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (CSRA). The CSRA 

authorized the MSPB to hear appeals of various agency decisions, most of which are 

appeals from agencies’ adverse employment actions. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unlike ATF, DEA, and USMS employees, the procedural 

protections described above do not apply to most FBI employees.12 For 

example, unlike most other federal employees, FBI employees cannot 

appeal disciplinary decisions to the MSPB. (See 5 U.S.C. § 7511(b)(8)). 

Instead, the FBI has established an internal process for employees to 

appeal discipline decisions. 

All non-frivolous allegations of criminal wrongdoing or serious 

administrative misconduct by Department employees must be reported 

to the OIG.13 

The disciplinary processes of all four law enforcement components 

follow a similar format containing three distinct phases: reporting, 

investigation, and adjudication. For a detailed description of each 

component’s disciplinary process, see Appendix 2. 

12 FBI employees to whom these procedural protections apply during the 

disciplinary process include preference-eligible veterans (5 U.S.C. § 7511(a)(1)(B)). 

Veterans are preference eligible if they are disabled or served on active duty during 

certain specified time periods or in military campaigns (5 U.S.C. § 2108). 

13 The OIG generally will investigate allegations of criminal or serious 

administrative misconduct, or misconduct by high-ranking employees or others as to 

which the impartiality of an internal investigation might be open to question. For the 

cases that the OIG investigates, the OIG issues a final report of investigation that is 

provided to the component, in order that the report can be used as the basis for the 

component’s disciplinary decision. 

See generally 28 C.F.R. Parts 0 and 45, which require the law enforcement 

components to refer all non-frivolous allegations of employee misconduct to the OIG. 

See also the Inspector General Act of 1978, as amended, 5 U.S.C. App § 8(E) (b) (2) 

(providing the Inspector General the authority to investigate any Department employee 

misconduct). 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCOPE AND METHODOLOGY OF THE OIG REVIEW
 

Scope 

This review covered allegations of sexual misconduct and sexual 

harassment by law enforcement component employees from FY 2009 

through FY 2012 (October 1, 2008 through September 30, 2012) that 

resulted in disciplinary action or decisions to take no action. We also 

included available information regarding misconduct allegations from 

this timeframe that were still open as of April 23, 2013, and updated the 

information during the course of our review.14 

Methodology 

Our review included data analysis, case file reviews, and 

interviews.15 We reviewed applicable laws, regulations, policy, and 

written procedures related to the disciplinary process, sexual misconduct 

and sexual harassment. We collected and analyzed misconduct data and 

case files we received from the law enforcement components and from 

the OIG’s Investigations Division. 

Data Analyses and Case File Reviews 

In April 2013, during the planning stages of this review, the OIG 

requested from the four Department law enforcement components all 

misconduct allegations from FY 2009 through FY 2012. ATF and the 

USMS readily provided this information, which assisted the OIG in 

determining what sexual misconduct and sexual harassment allegations 

would be within the scope of our review. By contrast, the DEA and the 

FBI initially stated they were unwilling to provide the OIG with 

information regarding such misconduct allegations until the OIG 

formally initiated the review. Both components cited the Privacy Act and 

concerns for the parties involved as the basis for not providing the 

14 Any open allegations of sexual misconduct or sexual harassment discussed 

in this report were monitored or investigated by the OIG. This review examines the 

policies and processes employed by the law enforcement components, and not the OIG’s 

investigation or monitoring of the underlying matters. 

15 Component case files may contain multiple allegations against multiple 

subjects. For purposes of this review, we generally count each case file as a separate 

case and each subject of an investigation as a separate allegation. However, during 

adjudication, an adjudicative case file contains only information relating to an 

individual subject. Therefore, when discussing the adjudicative process, we refer to 

each subject as a case. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

information.16 We had to elevate these issues for discussion with the 

respective component senior management. 

The following sections discuss what occurred with data requests 

made to the FBI and DEA. 

FBI data requests: In order to identify sexual misconduct and 

harassment cases within our scope, we initially provided the FBI with a 

list of search terms to use in its database queries. In consultation with 

the OIG, the FBI developed a shorter list of search terms that focused on 

seven offense categories relating to sexual misconduct and sexual 

harassment. However, when the FBI provided the results of their 

searches, the information it provided was heavily redacted and prevented 

the OIG from understanding the nature and circumstances of the 

allegations. 

When we questioned the inadequate nature of these productions, 

the FBI continued to raise unsupportable objections related to the 

Privacy Act to producing unredacted materials to the OIG. It was not 

until August 2013 that the FBI agreed to provide the OIG with case files. 

To help ensure that we had received all cases within the scope of 

our review from the FBI, we ran a search of the OIG Investigation 

Division’s database with our full list of search terms. We then evaluated 

the search results to determine which cases were within the scope of our 

review, and we compared those cases with what we received from the 

FBI. Through this process, we found a material number of additional 

allegations of sexual misconduct and sexual harassment that were not 

included in FBI’s productions. We requested and ultimately received 

information from the FBI on these additional cases. 

Also, based upon our analysis of the FBI’s search process, we 

determined that a significant number of cases were within the scope of 

our review and met the agreed upon FBI search criteria, but were not 

provided to the OIG. As a result of these initially incomplete 

productions, we cannot be confident that the FBI provided us with all of 

16 This refusal was puzzling to us, given that the OIG is an organization within 

the Department and that the OIG routinely handles information it receives from 

Department components consistent with the Privacy Act. Furthermore, the OIG 

Investigations Division receives from these same law enforcement components all such 

misconduct allegations on a regular basis, though not with all the same information 

and disciplinary outcomes necessary for this review. See generally 28 C.F.R. Parts 0 

and 45, which require the law enforcement components to refer all non-frivolous 

allegations of employee misconduct to the OIG. See also the Inspector General Act of 

1978, as amended, 5 U.S.C. App § 8(E) (b) (2) (providing the Inspector General the 

authority to investigate any Department employee misconduct). 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

the relevant information necessary for our review. Moreover, the failure 

to provide case file information in a timely fashion unnecessarily delayed 

our work. Therefore, our report reflects the findings and conclusions we 

reached based on the information made available to us. For a more 

detailed discussion regarding the allegations we reviewed for each of the 

law enforcement components, see Appendix 1. 

DEA data requests: In order to identify sexual misconduct and 

harassment cases within our scope, we initially provided the DEA with a 

list of search terms to use in its database queries. The DEA did not 

provide the OIG with case file information until several months after we 

first requested it, and only after we formally initiated the review. 

Moreover, in August 2013, when the DEA provided the OIG with case file 

information, the information was so heavily redacted that it prevented 

the OIG from understanding the nature and circumstances of the 

allegations.17 When we questioned the inadequate nature of these 

productions, the DEA continued to raise unsupportable objections 

related to the Privacy Act to producing unredacted materials to the OIG. 

It was not until September 2013 that the DEA provided mostly 

unredacted case file information, but it continued to redact some 

relevant information. 

To help ensure that we had received all cases within the scope of 

our review from the DEA, we ran a search of the OIG Investigation 

Division’s database with our full list of search terms. We then evaluated 

the search results to determine which cases were within the scope of our 

review, and we compared those cases with what we received from the 

DEA. Through this process, we found a material number of additional 

allegations of sexual misconduct and sexual harassment that were not 

included in DEA’s productions. We requested and ultimately received 

information from the DEA on these additional cases. 

Moreover, in November 2014, after a working draft of our report 

was issued to the components, we learned for the first time that the DEA 

had not run the full list of search terms provided by the OIG. Instead, 

the DEA informed us that it had run only three search terms related to 

sexual misconduct and harassment and initially provided the OIG with a 

more limited number of cases as a result. Based upon our analysis of 

the DEA’s search process, we determined that a significant number of 

cases were within the scope of our review and met the DEA-selected 

search criteria, but were not provided to the OIG during their initial 

production. 

17 For an example of the redacted information provided by DEA during this 

phase of our review, see Appendix 6. 

7
 
 

 

 

 

Because of these initially incomplete productions, we cannot be 

confident that the DEA provided us with all of the relevant information 

necessary for our review. Moreover, the failure to provide case file 

information in a timely fashion unnecessarily delayed our work. 

Therefore, our report reflects the findings and conclusions we reached 

based on the information made available to us. For a more detailed 

discussion regarding the allegations we reviewed for each of the law 

enforcement components, see Appendix 1. 

Interviews 

We interviewed officials and staff members responsible for the 

reporting, investigation, and adjudication of discipline and adverse 

actions at the law enforcement components. We also interviewed staff 

members in their respective Chief or General Counsel’s Offices. Further, 

we interviewed the components’ security personnel and information 

technology personnel, the Department’s Security and Emergency 

Planning Staff (SEPS), and personnel from the Office of the Deputy 

Attorney General. 

We were concerned by an apparent decision by DEA to withhold 

information regarding an open matter during our initial interviews with 

several DEA employees. When we re-interviewed these employees after 

the DEA provided the case file following its closure, the employees stated 

they were given the impression by DEA that they were not to discuss the 

case with the OIG while the case remained open. The OIG was entitled to 

receive all such information from the outset of our review. The failure to 

provide it in a timely fashion unnecessarily delayed our work. 

The next section of the report discusses the results of the review. 

Chapter 1 discusses the reporting of allegations of sexual misconduct 

and sexual harassment. Chapter 2 discusses the security of operations, 

while Chapters 3 and 4 discuss the investigation and adjudication of 

sexual misconduct and sexual harassment allegations. Chapter 5 

discusses detecting and retaining sexually explicit text message evidence. 

8
 
 

 

 

 

 

 

 

 

RESULTS OF THE REVIEW
 

CHAPTER 1: THE REPORTING PROCESS 

Although the ATF and the USMS have clear policies requiring 

supervisors to report misconduct allegations, including alleged sexual 

misconduct and sexual harassment, to their headquarters internal 

affairs offices, we found that supervisors sometimes failed to report these 

allegations, even when the subject was alleged to have committed similar 

misconduct in the past. 

At the DEA and the FBI, we found their misconduct reporting 

policies did not clearly delineate what should be reported to 

headquarters and what should be treated as a local management or 

performance-related issue. We found that, as a result, supervisors at 

these components exercised discretion in deciding what to report, even 

when their respective offense tables characterized sexual misconduct and 

sexual harassment as prohibited behavior. 

As a result, in all four components, allegations were not reported 

by their headquarters to the OIG when they first occurred, and in some 

cases, even some repeated allegations of sexual misconduct or sexual 

harassment may not have been fully investigated. 

ATF 

ATF Order 2130.A, Conduct and Accountability, requires ATF 

managers, supervisors, and employees to report to Internal Affairs 

Division (IAD) at ATF headquarters all suspected or alleged incidents of 

misconduct related to integrity, professionalism, and impartiality.18 ATF 

Order 8610.B, Integrity and Other Investigations, also requires ATF 

employees to promptly report any allegation or information indicating a 

violation of the standards of conduct (both government-wide or ATF 

standards), a violation of any Department rule, or any criminal conduct 

to their supervisor, IAD, or directly to the Department of Justice (DOJ) 

OIG. 

We found that in 4 of the 47 allegations (8.5 percent) we reviewed, 

ATF supervisors failed to report allegations of sexual misconduct and 

18 For purposes of this report, the OIG does not make a distinction between 

sexual misconduct and misconduct related to integrity, professionalism, and 

impartiality. Sexual misconduct, to include matters relating to sexual harassment, can 

and often does relate directly to integrity, professionalism, and impartiality. 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

sexual harassment to the Internal Affairs Division (IAD) as ATF policy 

required and instead handled matters locally. In these cases, the 

subjects who committed the alleged misconduct continued to engage in 

prohibited behavior and the OIG did not learn about the alleged 

misconduct when it first occurred. 

Case #1: For over 3 years, an ATF Program Manager failed to report 

allegations that two training instructors were having consensual sex with 

their students. According to the incident report, the Program Manager 

learned the same instructors had engaged in substantially the same 

activities 3 years earlier but had merely counseled the training 

instructors without reporting the alleged activities to the IAD. When 

division management learned about the latest incident from the Program 

Manager, they reported the matter to the IAD, and the Program Manager 

cancelled the instructors’ contracts and removed them from their 

positions.19 

Based on our review of the case file, we concluded the Program 

Manager did not comply with ATF policy requiring managers to report to 

the IAD all suspected or alleged incidents of misconduct related to 

integrity, professionalism, and impartiality. In addition, the Program 

Manager’s failure to report the alleged misconduct when it first occurred 

prevented the IAD from referring the allegations to the OIG when they 

were first discovered. There is no indication in the case file that the 

Program Manager was investigated for failing to report the first incident. 

Case #2: A Special Agent in Charge (SAC) and an Assistant Special 

Agent in Charge (ASAC) failed to promptly report allegations of an 

inappropriate relationship between the ASAC and a subordinate and the 

intentional misuse of government vehicles to facilitate that relationship. 

The subordinate’s spouse, who was also an ATF employee, insisted the 

ASAC report the relationship to local ATF management. Once it was 

reported, the subordinate was removed from the ASAC’s supervision; 

however, the SAC treated the romantic relationship as a “management 

issue” and did not report the matter to the IAD. The matter ultimately 

was reported to the IAD following additional allegations that the 

subordinate had engaged in similar misconduct. The ASAC ultimately 

received a 45-day suspension for misusing a government vehicle and for 

failing to report the subordinate’s continued use of the government 

19 ATF does not have any additional information indicating that the instructors 

appealed the termination of their contracts. However, one of the instructors was reinstituted and ATF has subsequently utilized that instructor for two task orders. ATF 

stated that this instructor’s actions were not as egregious as the other individual. ATF 

personnel also stated that the decision to not use the other instructor was due to the 

totality of the circumstances involving the disciplinary matter. 

10
 
 

 

 

 

 

 

 

 

 

 

 

vehicle to facilitate the relationship. The subordinate also received a 30­

day suspension for misuse of a government vehicle. 

We found that the SAC and the ASAC did not comply with ATF 

policy by failing to promptly report the relationship and the misuse of a 

government vehicle. Although the ASAC eventually was disciplined for 

failing to report the subordinate’s government vehicle misuse, the SAC 

retired and was not investigated or disciplined for failing to report these 

matters. Further, the IAD was unable to refer the allegations to the OIG 

when they were first discovered because the SAC and the ASAC did not 

report them. 

DEA 

We found that the DEA lacks clear policy on whether to report 

alleged misconduct to headquarters and the DEA provides supervisors 

discretion when deciding whether to do so. We determined that in 10 of 

the 113 allegations (9 percent), DEA supervisors failed to report 

allegations of sexual misconduct and sexual harassment through their 

chain of command or to the DEA’s Office of Professional Responsibility 

(OPR). In these instances, DEA supervisors treated alleged sexual 

misconduct and sexual harassment as a local management or 

performance-related issue. As a result, the OIG did not learn about the 

alleged misconduct and was unable to review the allegations when they 

first arose. 

The DEA Personnel Manual, Section 2735.1, Standards of Conduct, 

requires DEA employees to promptly report to their supervisor or directly 

to the DEA OPR any information that indicates or alleges that another 

DEA employee engaged in improper or illegal activities in violation of the 

DEA Standards of Conduct. However, DEA supervisors have discretion 

when determining whether the reported matter is a management or 

performance-related issue that can be handled locally or whether it is 

misconduct requiring a report to DEA OPR. Where there is a question 

about how the matter should be handled, the DEA Personnel Manual 

advises supervisors to consult with their chain of command or DEA OPR. 

However, DEA supervisors are not required to do so. 

The DEA Guide of Disciplinary Offenses and Penalties also contains 

descriptions of various types of prohibited behavior and puts employees 

and supervisors on notice as to what constitutes misconduct. Even 

though the reporting policy contained in the Personnel Manual lacks 

clarity, the DEA offense table and the Standards of Conduct provide some 

guidance to supervisors and employees. 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We found instances where it appears that due to a lack of clear 

policy, sexual misconduct and sexual harassment allegations were either 

not being reported to DEA OPR when they were first discovered or were 

not reported at all. In these cases, DEA supervisors treated the alleged 

misconduct as a local management issue. We discuss two cases below. 

Case #1: We found that a Regional Director, an Acting Assistant 

Regional Director (AARD), and a Group Supervisor failed to report 

through their chain of command or to the DEA OPR repeated allegations 

of DEA Special Agents (SA) patronizing prostitutes and frequenting a 

brothel while in an overseas posting, treating these allegations as local 

management issues.20 It was also alleged that one of the subjects in the 

supervisors’ group assaulted a prostitute following a payment dispute. 

The matter ultimately was reported to the DEA OPR in June 2010 in an 

anonymous letter alleging that two Special Agents had frequented 

prostitutes while in an overseas posting on a regular basis. 

According to DEA OPR’s report of investigation, the agents’ incountry supervisors were aware of several loud parties with prostitutes 

that occurred at a Special Agent’s government-leased quarters, because 

the Special Agent had received four complaint letters from building 

management, who had also informed local DEA management about the 

complaints between August 2005 and December 2008. In subsequent 

interviews with DEA OPR, this SA said that a Group Supervisor, the 

Regional Director, and the Acting Assistant Regional Director had warned 

the SA to discontinue the parties or be removed from the overseas 

assignment. However, they did not inform DEA OPR about the 

allegations. 

According to the case file, the Regional Director justified the failure 

to report the allegations by stating that the matter was a management 

issue. When the DEA OPR questioned whether the Regional Director 

failed to report an OPR matter, the Regional Director stated he believed 

the matter “was under the immediate purview of the Regional Security 

Officer” and “was being reviewed by competent and independent 

authority.” The DEA OPR reported the matter to the DEA Administrator 

and, in 2012, the DEA Administrator counseled the Regional Director for 

failing to report the allegations. The Acting Assistant Regional Director 

and Group Supervisor were not subjects of the separate investigation 

20 The Acting Assistant Regional Director who supervised the two special agents 

in this case was also alleged to have solicited prostitutes in the DEA case we discuss in 

Chapter 2, Security of Operations. In that case, the AARD allegedly engaged in sexual 

relations with prostitutes at a farewell party in the AARD’s honor. There were also 

allegations operational funds were used to pay for the party and the prostitutes who 

participated. 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

and were not disciplined, and the SA whose quarters were used for the 

parties received a 14-day suspension for Conduct Unbecoming a DEA 

Agent and Improper Association. 

Even though the DEA’s reporting policy affords some discretion to 

DEA supervisors on whether to report alleged misconduct to the OPR or 

whether to handle it locally, the alleged misconduct described above 

clearly should have been reported to the DEA OPR because it falls within 

the offense category Criminal, Dishonest, Infamous or Notoriously 

Disgraceful Conduct that is contrary to the DEA Standards of Conduct 

and is prohibited in its offense table. For the Regional Director to have 

treated such conduct as a local management issue is troubling. Further, 

the supervisors’ failure to promptly report the alleged misconduct 

prevented the DEA OPR from referring these allegations to the OIG for 

investigation when they were first discovered. 

Case #2: In another case, a DEA Country Attaché and Group 

Supervisor failed to report repeated incidents of sexual harassment and 

other misconduct through their chain of command or to DEA OPR. 

According to the OPR case file, in May 2010, DEA received a complaint 

through the Department of State, Diplomatic Security Service, regarding 

an Assistant Regional Director (ARD) in an overseas Country Office. 

According to the report of investigation, a Foreign Service National (FSN) 

who served as the ARD’s Assistant alleged that the ARD made numerous 

inappropriate sexual comments; asked the FSN to watch pornographic 

movies; and routinely threw items, yelled at employees, and used other 

vulgarities in the office and at official functions, among other 

allegations.21 

When a second employee raised concerns about the ARD’s 

behavior to the Country Attaché and the Group Supervisor, they told the 

second employee to discontinue any direct contact with the ARD but did 

not report the allegations to DEA OPR. Ultimately, after the FSN’s 

complaint to the Embassy’s Regional Security Office was referred 

through the State Department to the DEA OPR, the ARD received a letter 

of reprimand for Failure to Follow Instructions and Conduct Unbecoming 

a DEA Agent for using profanity, yelling, and throwing things in the 

office. 

21 DEA did not provide the OIG with the allegations contained in Case #2. We 

discovered them with the assistance of the OIG Investigations Division. The allegation 

was not investigated or monitored by the OIG, but was referred back to the DEA OPR to 

investigate as a management referral. 

13
 
 

 

 

 

 

 

Even though the DEA’s reporting policy affords some discretion to 

DEA supervisors on whether to report alleged misconduct to the DEA 

OPR or whether to handle it locally, we found the alleged misconduct 

described above warranted a report to the DEA OPR, rather than treating 

such conduct locally as a management issue. Such conduct is contrary 

to the DEA Standards of Conduct and is prohibited in the offense table, 

thus warranting a referral to the DEA OPR. 

The fact that the alleged misconduct involved executive 

management could have indicated to employees in the field that the 

ARD’s behavior was acceptable and tolerated by the supervisors in this 

country office, underscoring that local office management were not the 

appropriate individuals to handle these issues. Further, the supervisors’ 

failure to promptly report these allegations prevented the DEA OPR from 

referring the alleged misconduct to the OIG when they were first 

discovered. 

FBI 

The FBI also lacks clear policy on whether to report alleged 

misconduct to headquarters and provides FBI supervisors with discretion 

when making these determinations. We found that, as a result, in 32 of 

the 258 allegations (approximately 12 percent) we reviewed, FBI 

supervisors failed to report allegations of sexual misconduct and sexual 

harassment to the Inspection Division, Internal Investigations Section. 

In these instances, FBI supervisors treated alleged sexual misconduct 

and sexual harassment as local management issues. Further, the OIG 

would not learn about the alleged misconduct in order to be able to 

review it when it first occurred. 

According to the FBI Code of Conduct, “FBI employees shall report 

to the proper authority any violations of law and regulation by 

themselves or others.” The FBI Offense Codes and Penalties Guidelines 

contains descriptions of prohibited behavior and includes an offense 

category requiring FBI employees to report to the appropriate FBI official 

or supervisor in a timely manner allegations of administrative or criminal 

misconduct which the employee knew or should have known to be a 

violation of FBI or DOJ regulation or policy. In interviews, Internal 

Investigations Section (IIS) management told us that all misconduct 

allegations must be reported to IIS for a determination as to whether the 

alleged misconduct warranted investigation because the IIS staff are the 

subject matter experts. 

However, the Internal Investigations Section Supervisor’s Guide 

provides FBI supervisors and senior management with more discretion 

when determining whether to report misconduct allegations to 

14
 
 

 

 

 

 

 

 

 

 

headquarters, requiring only the reporting of “all allegations of employee 

serious misconduct or criminality.” 

The IIS Supervisor’s Guide also advises supervisors to refer to the 

FBI Offense Codes and Penalty Guidelines, which describes various types 

of prohibited behavior, when determining what types of alleged 

misconduct warrant referral to the IIS Initial Processing Unit (IPU). 

When there is doubt, the Guide advises supervisors to contact the IPU 

Unit Chief or the Lead Conduct Review Specialist by telephone for 

guidance in evaluating whether an allegation warrants a referral. We 

therefore concluded that the FBI policy on reporting misconduct 

allegations to the IIS still leaves local supervisors with discretion in 

deciding whether to report misconduct. 

In contrast to sexual misconduct, the FBI has a specific reporting 

policy regarding sexual harassment.22 It states that once a sexual 

harassment incident has been reported, “the supervisor must take 

immediate corrective action and must also report the allegations of 

sexual harassment to the Inspection Division, Internal Investigations 

Section, as potential employee misconduct.” 

We found instances where it appeared that, because the policy on 

reporting sexual misconduct is unclear, the discretion given to FBI 

supervisors resulted in such allegations not being reported to the FBI IIS 

when they were first discovered or that they were never reported. We 

also found sexual harassment allegations that were not reported to the 

FBI IIS when they were first discovered or were never reported despite 

the FBI’s clear policy requiring reporting of these matters. Also, even 

after this failure to report was discovered by the FBI IIS, it did not open 

an investigation into the failure to report. We discuss two sexual 

harassment cases with reporting issues below. 

Case #1: A line supervisor, an Assistant Section Chief, a Section Chief, 

and an Assistant Director failed to report a Supervisory Management and 

Program Analyst’s (SMAPA) repeated unprofessional behavior, including 

cornering his subordinates in their cubicles and displaying the size of his 

genitals by tightening his pants, making graphic and inappropriate 

sexual comments and gestures, and otherwise creating a hostile work 

environment. 

Instead of reporting this conduct to headquarters, the supervisors 

counseled the SMAPA on four occasions and, in the last session, required 

the SMAPA to sign a document in which the SMAPA pledged to refrain 

22 FBI Policy on Harassment, dated February 14, 2005. 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

from such conduct. Even after signing the document, the SMAPA 

continued to engage in the misconduct, at which point the Assistant 

Director reported it to the IIS. Accordingly, the subordinates experienced 

the SMAPA’s misconduct for approximately 3 years before it was reported 

to headquarters. 

According to the case file, two of the subordinates said they 

reported the SMAPA’s conduct to the Assistant Section Chiefs and the 

Section Chief of their division on several occasions, but they seemed 

“unsupportive and unconcerned.” In interviews with IIS, one Assistant 

Section Chief commented that the SMAPA’s personal relationships with 

the Section Chief and the other Assistant Section Chief were the main 

reason why they were unconcerned and failed to take appropriate action. 

Ultimately, the SMAPA received a 60-day suspension for Unprofessional 

Conduct – On Duty and Insubordination, was demoted to a nonsupervisory position, and was reassigned to another office. Although the 

Section Chief was also a subject of the investigation, no disciplinary 

action was taken. 

We concluded that the supervisors in this case should have 

reported the allegations when they first occurred, rather than treating 

such repeated and egregious misconduct as a local management issue. 

The allegations that the SMAPA made repeated inappropriate sexual 

comments and advances to multiple subordinates falls within Offense 

Code 5.20, Sexual Harassment, described as “making unwelcome or 

unwanted sexual advances, requesting sexual favors, or engaging in 

other verbal or physical conduct of a sexual nature.” 

The impressions that the Section Chief and the Assistant Section 

Chief were “unsupportive and unconcerned” about the SMAPA’s alleged 

conduct and the belief of at least one other Assistant Section Chief that 

the handling of the matter was influenced by their personal relationship 

with the subject provide additional evidence for why the allegations 

should have been referred to headquarters at the outset. Further, the 

division management’s failure to promptly report the alleged misconduct 

prevented the IIS from referring these allegations to the OIG for possible 

investigation when they were first discovered. 

Case #2: In another case, FBI supervisors counseled a subject twice 

before reporting alleged sexual harassment to the IIS. According to the 

IIS case file, in December 2008, an FBI Training Assistant reported that a 

probationary Fingerprint Examiner was making unwanted sexual 

advances toward the Assistant. The misconduct began in November 

2008, when the Fingerprint Examiner (the subject) requested a private 

meeting with the Assistant and, despite being married, confessed an 

infatuation with the Assistant. The subject sent numerous e-mails and 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

text messages to the Assistant, who expressed disinterest in pursuing a 

relationship. However, the subject persisted, discussed in e-mail his 

plans to leave his wife, and wrote that he turned down sexual relations 

with his spouse because of the unrequited infatuation with the Assistant. 

The Assistant reported these concerns to first-line supervisors, and they 

counseled the subject but did not notify the IIS. The subject admitted 

the misconduct and apologized to the Assistant. 

Despite the initial counseling session and the subject’s admission 

and apology to the Assistant, the subject continued to make unwanted 

advances. In January 2009, the Assistant made another report to firstline supervisors alleging continued unwanted advances, and they again 

counseled the subject without notifying the IIS. The supervisors also 

moved the subject’s workspace from the immediate proximity of the 

Assistant and provided him with a copy of the FBI’s Sexual Harassment 

Policy. 

In February 2009, the first-line supervisors reported the 

allegations to the division’s executive management, who met with the 

subject and decided to report the matter to the IIS. In the electronic 

communication to the IIS, the reporting division described the situation 

as “deplorable and unacceptable,” though they indicated that they 

believed their prior course of action was appropriate because the subject 

was a probationary employee who was being transferred to another 

unit.23 

We concluded that even though the FBI’s reporting policy leaves 

discretion as to reporting allegations to IIS, the supervisors should have 

reported the incidents described above to the FBI IIS when they first 

occurred, rather than treating such conduct as a management issue. 

Despite division management’s attempts to rectify the situation through 

counseling, there was e-mail and text message evidence that documented 

the subject’s continued unrequited sexual advances, conduct that is 

clearly prohibited by FBI Offense Code 5.20, Sexual Harassment. 

In addition, the FBI offense table does not designate sexual 

harassment as an offense warranting investigation in the field rather 

than at headquarters. According to the IIS Supervisor’s Guide, offenses 

designated as Delegated Investigation Only (DIO) or Delegated 

23 The IIS did not investigate the matter but agreed to monitor the situation, 

instructing the reporting division to make an immediate report if any other 

developments materialized, and the employee was not disciplined. By failing to take 

action, there is a risk that other FBI employees may experience the misconduct alleged 

by the Assistant. 

17
 
 

 

 

 

 

 

 

 

 

 

 

Investigation Adjudication (DIA) are investigated and, if appropriate, 

adjudicated by supervisors and Assistant Inspectors In Place (AIIP) in the 

field. Typically, property-related and general misconduct allegations are 

designated as DIO, DIA, or both. Because the alleged misconduct fell 

within the Sexual Harassment offense category, however, an immediate 

report to the IIS was warranted. Further, we found the supervisors’ 

failure to promptly report the alleged misconduct prevented the IIS from 

referring these allegations to the OIG for possible investigation when they 

were first discovered. 

USMS 

We found that in 9 of the 81 allegations (11 percent) we reviewed, 

USMS supervisors failed to report allegations of sexual misconduct and 

sexual harassment to the Office of Professional Responsibility, Internal 

Affairs (OPR-IA) as required by policy, and instead handled matters in 

the field. The OIG did not learn about the alleged misconduct when it 

first occurred. 

According to USMS Policy Directive 3.3, Performance & Related 

Matters, Human Resources, Discipline and Adverse Actions, USMS 

supervisors are required “to promptly report, through channels, to the 

OPR-IA alleged infractions of statutes or regulations or other misconduct 

that may warrant discipline.” In interviews, OPR-IA officials stated that 

supervisors in the field must report all alleged misconduct or criminal 

activity, whether on duty or off, to headquarters. Despite this clear 

directive, we found instances where the allegations were not reported 

when they were first discovered. We discuss two cases below. 

Case #1: A USMS supervisor failed to promptly report allegations that a 

Deputy U.S. Marshal (DUSM) solicited prostitutes while on an extradition 

mission in Bangkok, Thailand. According to the case file, the supervisor 

learned about the allegations when the DUSM’s colleague reported the 

matter to management. At that time, the supervisor met with the DUSM; 

the DUSM admitted the misconduct and received an oral admonishment. 

The USMS OPR-IA learned about the allegation when the State 

Department referred the allegation to the OIG and the OIG notified the 

OPR-IA. In an e-mail to OPR-IA, the supervisor explained that the 

allegation was not reported to the OPR-IA at the outset because no 

formal complaint was made against the DUSM.24 

24 Ultimately, the OPR-IA administratively closed the allegation and referred the 

allegation back to the originating district. The supervisor took no further action, and 

the matter was closed. 

18
 
 

 

 

 

 

 

 

 

 

In an interview with the OIG, the supervisor expressed the belief 

that the DUSM’s conduct was not misconduct but simply amounted to a 

personal indiscretion and that handling the matter internally seemed 

appropriate at the time. However, the supervisor admitted that the 

failure to report was an error in judgment, stating, “The only thing I 

would’ve regretted about how I handled this, was that I did not call 

internal first.” We determined that the supervisor was not investigated 

or disciplined for failing to report the matter. The supervisor reportedly 

notified the U.S. Marshal, who also did not report the allegations to the 

OPR-IA. 

We found that the district management’s failure to promptly report 

these allegations violated the USMS policy requiring all employees to 

report allegations of misconduct, whether on duty or off. Although the 

OIG ultimately learned about this incident through a State Department 

referral, it was the district management’s responsibility to report these 

allegations to OPR-IA when they first were received. 

Case #2: An Acting Supervisory Deputy U.S. Marshal (SDUSM) reported 

to district executive management allegations that a DUSM had an 

inappropriate relationship with the common law spouse of a fugitive. 

However, the Acting Chief Deputy U.S. Marshal, other district executive 

management, and a representative of the Office of General Counsel 

(OGC) failed to report these matters to OPR-IA and instead counseled the 

DUSM. 

According to the OPR-IA report of investigation, an Acting SDUSM 

learned that a Deputy U.S. Marshal had entered into a romantic 

relationship with the common law spouse of a USMS fugitive. The Acting 

SDUSM contacted the USMS Office of General Counsel, Acting Chief 

Deputy U.S. Marshal, and another SDUSM in the district to determine 

how to handle the situation. Three supervisors instructed the DUSM to 

terminate the relationship, but the DUSM continued to pursue it without 

their knowledge for approximately 1 year. Neither the supervisors nor 

the OGC representative with whom they consulted reported the 

allegations to the OPR-IA. 

When the relationship ended, the fugitive’s spouse lodged a 

complaint with the OIG, which referred the allegation back to USMS 

OPR-IA for handling as a management referral.25 

25 The DUSM was removed for the misconduct but appealed to the Merit 

Systems Protection Board and reached a settlement, allowing the DUSM to resign. 

19
 
 

Although the Acting SDUSM reported the matter through the chain 

of command when the incident was first discovered and the Acting 

SDUSM sought guidance from OGC on how to handle the issue, both 

district management and the OGC failed to promptly report these 

allegations to the OPR-IA. This also resulted in the OIG not learning 

about the misconduct when the allegation was first discovered. 

In the next chapter, we discuss issues that we discovered in the 

security process. 

20
 
 

 

 

 

 

 

 

 

CHAPTER 2: SECURITY OF OPERATIONS 

At ATF, DEA, and USMS, we found there is a lack of coordination 

between the internal affairs offices that investigate sexual misconduct 

allegations and the offices responsible for ensuring employees meet the 

requirements to hold security clearances, despite explicit policies 

requiring such coordination. We determined that in most cases where 

internal affairs received allegations that employees reportedly engaged in 

high-risk sexual behavior, security personnel were not informed about 

these incidents until well after they occurred or were never informed.26 

This was true even though these three components each have policies 

requiring some coordination between their internal affairs and security 

personnel and even though such behavior has the potential to expose the 

employees to coercion, extortion, and blackmail, presenting serious 

security risks for the components. 

By contrast with the other three law enforcement components, we 

found that the FBI has taken a better approach to addressing such 

potential security issues and we determined that all misconduct 

allegations were referred to FBI security personnel for review. 

Specifically, the FBI Internal Investigations Section refers all misconduct 

allegations to the Security Division, Analysis and Investigations Unit 

(AIU) for a determination as to whether the allegation raises security 

risks for the FBI or whether the allegation raises concerns about the 

employee’s continued eligibility to hold a security clearance. If these 

risks are present, AIU opens a parallel investigation. 

ATF, the DEA, and the USMS have delegated authority from the 

Department’s Security and Emergency Planning Staff to grant National 

Security Information (NSI) 

Clearances up to the Top Secret 

level, while FBI has 

independent statutory 

authority to adjudicate to the 

Top Secret level. At all the 

components, if a higher 

security clearance is required, 

the SEPS adjudicates the 

clearance. 

Component Employees Holding 

Security Clearance in 2013 

ATF 4,657 

DEA 9,401 

USMS 3,063 

FBI All 35,344 employees hold at 

least a Top Secret Clearance 

Source: Component Security Offices 

26 High-risk sexual behavior involves a criminal offense, indicates a personality 

or emotional disorder, reflects lack of judgment or discretion, or may subject the 

individual to undue influence or coercion, exploitation, or duress can raise questions 

about an individual’s reliability, trustworthiness, and ability to protect classified 

information. 

21
 
 

 

 

 

 

 

 

 

 

 

 

The law enforcement components are required to ensure their 

employees’ initial and continued eligibility for access to classified 

information. Security personnel throughout the federal government use 

the Adjudicative Guidelines for Determining Eligibility for Access to 

Classified Information (Guidelines) to make these determinations.27 

The Guidelines are comprised of three parts: the concern, the 

potentially disqualifying conditions, and mitigating factors. There are 

13 areas of concern described in the Guidelines. Specifically, 

Adjudicative Guideline D: “Sexual Behavior” outlines various types of 

sexual behavior security personnel should consider, including sexual 

behavior: 

•	 of a criminal nature, whether or not the individual has been 

prosecuted;
 

•	 [that reflects] a pattern of compulsive, self-destructive, or high-risk 

sexual behavior that the person is unable to stop or that may be 

symptomatic of a personality disorder; 

•	 that causes an individual to be vulnerable to coercion, exploitation, 

or duress; and 

•	 of a public nature and/or that reflects lack of discretion or 

judgment.
 

Although ATF, the DEA, and the USMS have established policies 

requiring some level of coordination between their internal affairs offices 

and security personnel, we found this coordination did not always occur 

in practice. The following sections discuss the lack of coordination at 

ATF, the DEA, and the USMS. 

ATF 

Of the 40 sexual misconduct and sexual harassment cases, we 

found 3 substantiated cases and 1 administratively closed case involving 

high-risk sexual behavior where the Internal Affairs Division (IAD) failed 

to refer the allegations arising between fiscal year 2009 through fiscal 

year 2012 to the Personnel Security Branch (PSB) to determine if they 

27 The 13 areas of concern described in the Adjudicative Guidelines are: 

(A) Allegiance to the United States; (B) Foreign Influence; (C) Foreign Preference; 

(D) Sexual Behavior; (E) Personal Conduct; (F) Financial Considerations; (G) Alcohol 

Consumption; (H) Drug Involvement; (I) Psychological Conditions; (J) Criminal Conduct; 

(K) Handling Protected Information; (L) Outside Activities; and (M) Misuse of Information 

Technology. See generally Memorandum from Stephen J. Hadley, White House 

Assistant to the President for National Security Affairs, Adjudicative Guidelines for 

Determining Eligibility for Access to Classified Information, December 29, 2005. 

22
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

presented potential security risks for ATF and for the employees 

involved.28 We determined that this occurred because the IAD had not 

established a process for reporting misconduct allegations to the PSB. 

We concluded that because there was no process for notifying the PSB 

about misconduct allegations, the PSB was hampered in its ability to 

assess an employee’s continued eligibility to hold a security clearance. 

According to ATF Order 8610.B, the IAD must report to PSB any 

“conditions that could raise a security concern as defined by the ATF 

Adjudicative Guidelines.”29 Specifically, the IAD evaluates an allegation 

and drafts an incident report. Once the Assistant Director of Office of 

Professional Responsibility, Security Operations (OPRSO) reviews the 

allegation, the Order requires the OPRSO or the IAD to report any 

conditions that could raise a security concern to the PSB. If the PSB 

believes the employee’s behavior is an area of concern under the 

Adjudicative Guidelines, the PSB may suspend an employee’s eligibility 

for access to classified information, pending the conclusion of the IAD 

investigation. 

In interviews, IAD and PSB officials told us that the IAD typically 

does not provide information to the PSB about current investigations 

where IAD does not believe that there is an immediate security risk, out 

of concern that doing so may compromise its work, particularly when the 

subject is not aware they are being investigated. PSB officials told us 

this is problematic because IAD is not familiar with the Adjudicative 

Guidelines, and IAD is not in the best position to determine whether an 

allegation poses a security risk. 

PSB officials told us that they have made numerous attempts to 

establish a process for the referral of misconduct allegations raising 

security concerns, but a process had not been established during our 

review period. However, IAD officials stated that it was a priority of the 

28 An allegation is substantiated when it has gone through the entire 

disciplinary process, reporting, investigation, and adjudication, and the component has 

determined that the subject committed the alleged misconduct. The administratively 

closed case involved allegations that an ATF agent and evidence custodian failed to 

properly secure drug evidence. The case file also revealed allegations that the same ATF 

agent had inappropriate relationships with a particular female confidential informant 

(CI). Although ATF decided that the latter allegations did not warrant investigation, the 

agent’s supervisor counseled the subject regarding his relationships with CIs. The 

substantiated cases involved an inappropriate relationship with a “criminal element” 

alleged to be a cocaine user, the arrest of an ATF employee for failing to pay for a visit to 

a massage parlor, and the solicitation of multiple consensual sexual partners by an ATF 

employee. 

29 The ATF’s Adjudicative Guidelines are a restatement of the Adjudicative 

Guidelines applying to all federal employees holding a security clearance. 

23
 
 

 

 

 

 

 

 

 

 

 

 

new management in the OPRSO to establish a process for referring 

misconduct allegations raising security concerns. At the time of our 

review, we found that PSB was made aware of an allegation only if it was 

self-reported, if the allegation received media attention, or if an employee 

involved in the disciplinary process decided to notify the PSB.30 As a 

result, the PSB was not aware of all potential security risks as they 

arose. 

In interviews, we also learned that, even when the IAD refers a 

matter to the PSB, the IAD may provide the PSB with only the proposal 

and decision letters once a misconduct case is adjudicated. According to 

PSB officials, the IAD routinely denied PSB access to the full IAD report 

of investigation when an allegation raised security concerns. Instead, 

IAD provided the proposal and decision letters issued to the employee, 

which we found often contained only a brief synopsis of the case and do 

not include important details that could be relevant to a determination 

regarding the appropriateness of an employee maintaining a security 

clearance. Other than citing general privacy concerns, IAD officials could 

not explain why they routinely do not provide the PSB with the reports of 

investigations. 

One case in particular illustrates the importance of the need for 

sustained coordination between the PSB and the IAD on matters with 

potential security concerns. The case involved the solicitation of multiple 

consensual sexual partners by an ATF employee on temporary duty. 

This case is discussed in greater detail below. 

Case Example: In November 2009, an ATF Director of Industry 

Operations (DIO) who holds a Top Secret security clearance was on 

temporary assignment. According to the IAD report of investigation, the 

DIO solicited consensual sex with anonymous partners and modified a 

hotel room door to facilitate sexual play. In addition, the DIO removed 

smoke detectors from the hotel room and inadvertently caused damage to 

the hotel’s centralized fire detection system. When the hotel supervisor 

contacted the local police, the DIO admitted the conduct and told local 

police this type of conduct was not an isolated incident for him and had 

occurred in the past. The DIO pled guilty to one count of misdemeanor 

“fire prevention interference.” The DIO was placed on inactive probation 

for 12 months and was ordered to pay a fine and court costs. The 

incident received significant media attention in the local area. 

30 As discussed in Appendix 2 of this report, the employees involved in the ATF 

disciplinary process are the: (1) Internal Affairs Division, (2) the Professional Review 

Board, and (3) the ATF Deciding Official. 

24
 
 

 

 

 

Even though this conduct would clearly have been relevant under 

the Guidelines for determining the DIO’s continued access to classified 

information, we found the Internal Affairs Division failed to notify the 

PSB about this case. The PSB became aware of the incident only when 

an employee in the office read a news article about the case over a year 

after the incident occurred, prior to which the DIO had maintained his 

security clearance without review. Once the PSB became aware of the 

matter, it requested the report of investigation from the IAD. 

In interviews, we learned that the IAD would not provide the report 

of investigation to the PSB and provided only the proposal and decision 

letters. The proposal and decision letters described the incident but 

failed to describe the pattern of high-risk sexual behavior discussed in 

the report, specifically including the DIO’s admission that he had 

engaged in such conduct before. Ultimately, the DIO received a 14-day 

suspension for the misconduct described above and will be subject to 

additional scrutiny during the DIO’s 5-year reinvestigation. 

In interviews, PSB staff told us the DIO’s conduct is an area of 

concern identified in the Adjudicative Guideline on Sexual Behavior, 

specifically described as a “pattern of compulsive, self-destructive, or 

high-risk sexual behavior that the person is unable to stop.” According 

to the Guideline, consensual sex with anonymous partners is also an 

area of concern, particularly where it is “of a public nature and/or that 

reflects lack of discretion or judgment.” The PSB told us the DIO’s 

admission that this type of conduct was not isolated and had occurred in 

the past warranted a review of the DIO’s Top Secret clearance. However, 

this did not occur because the PSB did not receive the report of 

investigation containing the admission. 

We concluded that this case highlights how a failure by the IAD to 

refer misconduct allegations to the PSB as they arise can prevent ATF 

from addressing security threats in a timely fashion. To mitigate these 

risks, we believe that all non-frivolous misconduct allegations involving 

ATF employees should be referred to the PSB when they arise and that 

the report of investigation should be included, when available. If 

referring the allegation has the potential to compromise an IAD 

investigation, the referral should still be made to PSB to allow security 

personnel to monitor the situation while not discussing the potential 

security violations with the employee until the IAD investigation is 

completed or it agrees with IAD that notification of the employee is no 

longer an issue. As a result of this review, the ATF has informed us that 

a policy has been issued which will improve the coordination between 

ATF IAD and ATF PSB. 

25
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DEA 

Of the 77 sexual misconduct and sexual harassment cases we 

reviewed, we found 6 substantiated cases during our review period 

involving high-risk sexual behavior, among other things, where the DEA 

Office of Professional Responsibility (OPR) failed to refer the allegations to 

the Office of Security Programs (OSP).31 

According to the DEA Office of Professional Responsibility 

Handbook, while conducting a preliminary inquiry and throughout the 

investigation process of allegations of misconduct, OPR Inspectors are 

required to evaluate whether a misconduct allegation raises security 

concerns or whether the allegation compromises the employee’s 

continued ability to hold a security clearance.32 If an Inspector 

determines that security issues are present, the Inspector consults the 

Associate Deputy Chief Inspector (ADCI) or the Deputy Chief Inspector 

(DCI). The ADCI normally oversees the investigation and approves the 

final report. Even though the DEA OPR management personnel are not 

as familiar with the Adjudicative Guidelines as are security personnel in 

OSP, they have the sole discretion to determine whether the allegation 

warrants referral to the OSP. If a referral is made, DEA OPR provides 

investigative support to OSP in its review of the matter. 

In interviews, we learned that there is no formal process for 

referring misconduct allegations to OSP. Instead, the ADCI or the DCI 

merely discuss the allegations with OSP at their discretion. If the DEA 

OPR believes the case raises security issues, it provides OSP with access 

to the complete case file. Unless the misconduct allegation raises an 

immediate security concern, the referral does not occur until OPR 

completes the subject and witness interviews, or until the entire 

investigation is completed. DEA OPR officials explained that this is 

because of the potential that current investigations may be compromised 

if DEA OPR makes a referral to OSP while the subject or witnesses are 

still being interviewed. The DEA acknowledges that, historically, there 

31 This does not include four allegations where the subjects were DEA Task 

Force Officers (TFO) or the subjects retired while under inquiry. We did not include the 

TFO instances because the other components do not investigate TFO misconduct to the 

extent that DEA investigates these types of allegations. We also did not include eight 

allegations where a decision letter had not been issued as of this writing. Of the 

allegations that were included, one allegation involved a Country Attaché’s improper 

sexual relationship with a drug trafficker’s attorney, while the others involved two 

allegations where DEA agents and employees solicited prostitutes in the United States 

and overseas. The overseas prostitution case is discussed in detail in the text below. 

32 DEA Office of Professional Responsibility Handbook, undated. 

26
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

have been no formal procedures for ensuring that the DEA OPR notifies 

the OSP of security clearance-related matters. 

When referrals occur at the OPR’s discretion, we found there is a 

risk that it may not identify misconduct allegations raising potential 

security concerns, which is neither the OPR’s function nor its area of 

expertise. Below, we discuss a case in which several DEA employees 

working in an overseas office were alleged to have engaged in high-risk 

sexual behavior of a type that would be relevant under the Guidelines for 

determining their continued access to classified information, but where 

the ADCI or the DCI failed to refer the allegations to OSP. 

Case Example: During a series of interviews the DEA OPR conducted 

from 2009 through 2010, former host-country police officers alleged that 

several DEA agents, consisting of an Assistant Regional Director (ARD), 

an Assistant Special Agent in Charge (ASAC), six Supervisory Special 

Agents (SSA), and two line Special Agents formerly assigned to the an 

overseas office, solicited prostitutes and engaged in other serious 

misconduct while in the country.33 

The foreign officer allegedly arranged “sex parties” with prostitutes 

funded by the local drug cartels for these DEA agents at their 

government-leased quarters, over a period of several years. Although 

some of the DEA agents participating in these parties denied it, the 

information in the case file suggested they should have known the 

prostitutes in attendance were paid with cartel funds. A foreign officer 

also alleged providing protection for the DEA agents’ weapons and 

property during the parties. The foreign officers further alleged that in 

addition to soliciting prostitutes, three DEA SSAs in particular were 

provided money, expensive gifts, and weapons from drug cartel members. 

During the DEA OPR investigation, two DEA agents, who were 

subjects of the investigation, alleged that one of the SSAs frequented a 

33 The Assistant Regional Director (ARD) was not a subject of the subsequent 

investigation of the allegations by the DEA, but was instead deemed a witness. 

However, in interviews we learned that the DEA OPR Inspector assigned to the case had 

recommended the ARD be made a subject in light of allegations that the ARD solicited 

prostitutes at a farewell party held in the ARD’s honor. DEA told the OIG that the 

Inspector’s recommendation was considered and weighed against the evidence by the 

DEA OPR Senior Inspector, ADCI, and DCI, who all concluded that there was not 

enough evidence to justify disciplinary action against the ARD. The OIG believes that 

the parties who have the authority to determine whether there is sufficient evidence to 

warrant disciplinary action are the DEA HRB and HRO, not the DEA OPR. The ARD’s 

failure to report other allegations that involved the solicitation of prostitutes and the 

DEA’s failure to make the ARD a subject of this investigation are discussed in Chapter 

1, the Reporting Process and Chapter 3, the Investigation Process. 

27
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

prostitution establishment while in their overseas assignment and often 

took agents serving on temporary duty to this establishment and 

facilitated sexual encounters there. Another former foreign officer made 

similar allegations against the SSAs. Ultimately, 7 of the 10 agents 

admitted attending parties with prostitutes while they were stationed. 

The DEA imposed penalties ranging from a 2-day suspension to a 10-day 

suspension. One of the line agents was cleared of all wrongdoing.34 

The DEA Inspector told us that prostitution is considered a part of 

the local culture and is tolerated in certain areas called “tolerance 

zones.” According to the Inspector, it is common for prostitutes to be 

present at business meetings involving cartel members and foreign 

officers. The DEA Inspector also stated that the acceptability of this type 

of behavior affects the way in which federal law enforcement employees 

conduct themselves in this particular country. The Inspector further 

stated that prior to arriving in the country, agents needed better training 

that explicitly prohibits this type of conduct.35 

DEA OPR did not refer this case to OSP to identify potential 

security risks for DEA and to assess the subjects’ continued eligibility for 

a security clearance. In interviews, we learned that the assigned 

Inspector identified and discussed the potential security risks with OPR 

headquarters management. In particular, the Inspector said that she 

explained to OPR management that the fact that most of the “sex parties” 

occurred in government-leased quarters where agents’ laptops, 

BlackBerry devices, and other government-issued equipment were 

34 We conducted multiple interviews with DEA officials regarding the manner in 

which these allegations were handled before the case was finally adjudicated. Despite 

evidence in the case file that many of the personnel we interviewed were involved with 

this investigation and adjudication, only one interviewee, the assigned DEA OPR 

Inspector, provided the OIG any meaningful information regarding this specific case in 

our initial interview. We learned about the involvement of the others from records we 

obtained after the matter was closed and, when we thereafter re-interviewed these 

individuals, they indicated that they believed that they were not supposed to provide 

information to us about pending matters. As noted previously, the OIG was entitled to 

this information at the outset, and the failure to provide it to us in a timely fashion 

unnecessarily delayed our review of this matter. 

35 The Inspector told us that, for example, in the wake of the Cartagena 

incident, the DEA instituted etiquette training also called “fork and knife” training for 

DEA employees who are permanently deployed overseas. However, the DEA did not 

initially provide this information to the OIG evaluators who examined the training the 

DEA and other components provide to federal employees who travel abroad (See U.S. 

Department of Justice Office of the Inspector General, Review of Policies and Training 

Governing Off-Duty Conduct by Department Employees Working in Foreign Countries, 

Report 15-2, January 2015). 

28
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

present created potential security risks for the DEA and for the agents 

who participated in the parties, potentially exposing them to extortion, 

blackmail, or coercion. 

Even though the Inspector said she discussed these risks with 

DEA OPR management, OPR management officials we interviewed said 

that they did not refer the allegations to OSP because OPR management 

did not believe that the special agents’ conduct rose to the level of a 

security risk requiring a referral. It is also unclear whether the subjects 

self-reported these incidents, though if they did, there is no record of any 

review having been conducted by the OSP.36 OSP officials told us they 

were not aware of this case and it was not referred to them. 

We concluded that the alleged misconduct in this case clearly fell 

within the areas of concern identified in the Adjudicative Guidelines 

regarding continued access to classified information based on Sexual 

Behavior. Further, because prostitutes in the agents’ quarters could 

easily have had access to sensitive DEA equipment and information, the 

misconduct also would be relevant to the concerns identified in the 

Adjudicative Guidelines on Foreign Influence, Personal Conduct, and 

Handling Protected Information Guidelines.37 On both grounds, the 

absence of clear guidelines requiring the prompt reporting of this 

misconduct resulted in an ongoing security risk not being evaluated by 

the unit within the DEA assigned to that important duty. As a result of 

36 Department employees who have access to National Security Information 

(NSI), are in high-risk positions, or carry weapons in their official capacity are required 

to report in writing any on or off-duty allegations of misconduct to their respective 

Security Programs Manager. See generally Memo to Security Programs Managers, from 

James L. Dunlap, Department Security Officer, Justice Management Division, U.S. 

Department of Justice, Self-Reporting of Arrests and Allegations of Misconduct, 

September 10, 2004. In this case, we could not determine whether the subjects of the 

investigation self-reported the allegations discussed above. 

37 We found that some of the DEA Special Agents alleged to have solicited 

prostitutes were also involved in the investigations of the two former host country police 

officers who made these allegations. If these Special Agents had served as government 

witnesses at the trials of these defendants, their alleged misconduct would have had to 

be disclosed to defense attorneys and would likely have significantly impaired their 

ability to testify at trial. Ultimately, the government reached plea agreements with both 

defendants and the DEA Special Agents’ misconduct did not prevent the government 

from achieving a favorable result in the narcotics conspiracy case. See Giglio v. United 

States, where the Supreme Court held that to ensure a fair trial, prosecutors must 

disclose material evidence that serves to impeach or undermine the credibility of 

government witnesses. 

29
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

this review, the DEA has informed us that steps are being taken to 

improve the coordination between the DEA OPR and the DEA OSP.38 

USMS 

Of the 81 sexual misconduct and sexual harassment cases, we 

found 2 administratively closed cases involving high-risk sexual behavior 

where the Office of Internal Affairs failed to refer allegations to Office of 

Security Programs, Tactical Operations Division (OSP TOD) until well 

after the incidents occurred. These incidents may have presented 

potential security risks for the USMS and for the employees involved.39 

This occurred because the Office of Professional Responsibility, Internal 

Affairs (OPR-IA) lacks established written criteria for determining 

whether an allegation warrants a headquarters investigation or an 

investigation in the field and OPR-IA does not refer allegations that are 

investigated in the field to OSP TOD. The OPR-IA refers to OSP TOD only 

allegations investigated at headquarters, meaning that others sent back 

to the field are not referred to OSP TOD or reviewed there for potential 

security implications. 

According to OPR-IA officials, the USMS employs a three-tier 

evaluation process to determine whether a case should be delegated to 

the originating office or fully investigated by headquarters Inspectors. 

The Deputy Chief Inspector, the Chief Inspector of OPR-IA, and the 

Deputy Assistant Director of the Office of Professional Responsibility 

review all allegations to determine where they will be investigated. Even 

though the USMS Table of Offenses and Penalties offers guidance on the 

range of penalties appropriate for certain types of misconduct, OPR-IA 

officials told us the reviewers do not consult it. Instead, they rely on 

their institutional knowledge and experience, choosing the cases they 

investigate without the benefit of written criteria. OPR-IA officials said 

38 The DEA informed the OIG that on May 5, 2014, an Inspection Division 

Coordination Committee was formed. An ongoing project of this committee is to 

formalize the process whereby DEA OPR makes timely notification to DEA OSP in 

instances when a security clearance issue is identified in a DEA OPR investigation. We 

were informed that on October 22, 2014, the committee made recommendations to 

address this issue but that no formal actions have been taken on any of the 

recommendations. 

39 The first case involved an employee’s improper association with a criminal 

element. The case was monitored by the OIG. Specifically, it was alleged that a USMS 

employee’s ex-wife was married to a suspected drug trafficker under DEA investigation. 

Although the USMS employee had dealings with the drug trafficker on numerous 

occasions, DEA and OIG found no evidence of criminal activity on the part of the USMS 

employee. The second case involved a Deputy U.S. Marshal (DUSM) who solicited 

prostitutes during an extradition mission overseas. This case is described in detail 

below. 

30
 
 

 

 

 

 

 

 

 

 

 

 

that when the reviewers decide to refer an allegation back to the 

originating office in this matter, the OPR-IA does not refer the allegation 

to the OSP TOD. 

One case of particular concern involved the solicitation of 

prostitutes overseas. 

Case Example: According to the case file, in 2010, two Deputy U.S. 

Marshals (DUSMs) were assigned to conduct an extradition of a criminal 

defendant in Bangkok, Thailand. While in Thailand, one of the DUSMs 

was unavailable and, each time U.S. State Department officials 

attempted to contact him, two women with heavy foreign accents 

answered the phone and stated the DUSM could not be disturbed. A 

local investigator for the State Department spoke to one of the women in 

Thai, confirmed she was a prostitute, and instructed the DUSM’s 

colleague to notify their management of the incident upon their return to 

the United States. 

As instructed, the DUSM’s colleague notified the supervisor about 

the incident. When the supervisor questioned the DUSM, the DUSM 

admitted having sexual relations with prostitutes while on the extradition 

mission. According to an e-mail in the case file, the supervisor orally 

admonished the DUSM and allegedly removed the DUSM from the list of 

Marshals permitted to go on extraditions. However, the USMS told us 

that there is no “extradition list” at USMS and assignments for 

extraditions are based on seniority in a DUSM’s respective district. Since 

this incident, the DUSM has conducted at least one extradition overseas, 

even though the State Department stated in e-mail to the OIG that the 

DUSM was not welcome to return to Thailand.40 

Based on our review of the case file, we determined that USMS 

Internal Affairs was not aware of the allegation until the State 

Department contacted the OIG directly to make a complaint, and the OIG 

subsequently referred the allegation back to USMS Internal Affairs for 

review since it did not involve an allegation of criminal conduct or 

administrative misconduct by a high-ranking component employee.41 

40 We were not able to determine which country the DUSM conducted 

extraditions in after this incident. 

41 The failure of the supervisor to report these allegations to USMS Internal 

Affairs is also discussed in Chapter 1. As discussed there, when we asked the 

supervisor why the allegation was not referred to USMS Internal Affairs, the supervisor 

asserted that supervisor did not believe the incident was misconduct, characterizing it 

instead as “a personal matter between him and his wife.” 

31
 
 

 

 

 

 

 

 

 

 

According to the case file, once the incident was reported to the 

OPR-IA, the Deputy Chief Inspector and the Chief Inspector decided to 

refer the matter back to the originating office for investigation, because 

such allegations would not warrant a suspension of 15 days or more. In 

addition, despite the DUSM’s admissions to the supervisor, USMS 

officials told us this allegation was not investigated at headquarters 

because there was no evidence the DUSM had sex with prostitutes, and 

it was only the opinion of the State Department Deputy Regional Security 

Officer and a local investigator that the woman who answered the phone 

call was a prostitute. Further, in interviews with OPR-IA officials, we 

learned that there is no USMS policy prohibiting the solicitation of 

prostitutes in jurisdictions where prostitution is legal or tolerated.42 As a 

result, according to these officials, the allegations would not warrant a 

suspension of 15 days or more and therefore did not require a 

headquarters investigation. Since a headquarters investigation did not 

occur, USMS security personnel were not notified about the misconduct. 

Ultimately, the matter was closed at the originating office without 

an investigation and USMS security personnel were not informed about 

the incident until the subject’s 5-year reinvestigation, nearly 2 years after 

the incident occurred. During the intervening years, the subject 

continued to hold a security clearance, with no review of the risks 

attendant to his behavior abroad. 

However, USMS security personnel confirmed that the nature of 

this allegation and the involvement of the State Department constituted 

potential disqualifying behavior as described in Adjudicative Guidelines 

on Sexual Behavior. We learned that the OSP TOD required the DUSM 

to admit the conduct to the DUSM’s spouse in order to mitigate potential 

security risks, such as potential exposure to coercion, extortion, and 

blackmail. Although the impact of the DUSM’s conduct may have been 

mitigated in this manner, it took nearly 2 years after the incident to do 

so. Accordingly, the USMS was, at the very least, left open to potential 

security risks for longer than necessary. 

This case exemplifies the need for better coordination between 

USMS Internal Affairs and the OSP TOD. All non-frivolous misconduct 

allegations involving USMS employees should be referred to OSP TOD, 

whether the allegation is investigated at headquarters or referred back to 

the originating office, to mitigate potential security risks when they are 

42 The OIG also examined the off-duty conduct policies that the USMS and 

other components provide to employees who travel abroad (See U.S. Department of 

Justice Office of the Inspector General, Review of Policies and Training Governing OffDuty Conduct by Department Employees Working in Foreign Countries, Report 15-2, 

January 2015). 

32
 
 

 

first discovered. Failing to do so presents security risks for USMS, 

hampers USMS’s ability to determine an employee’s continued eligibility 

to hold a security clearance, and has the potential to expose the 

employee involved to coercion, extortion, and blackmail for years, just as 

occurred in the case discussed above. 

FBI 

In contrast, the FBI has taken a better approach to addressing 

potential security issues. The FBI Internal Investigations Section refers 

all misconduct allegations to the Analysis and Investigations Unit (AIU). 

The AIU then determines whether the allegation raises security risks for 

the FBI or whether the allegation raises concerns about the employee’s 

continued eligibility to hold a security clearance. If these risks are 

present, the AIU opens a parallel investigation. We consider the FBI’s 

approach to be a best practice, and we believe ATF, the DEA, and the 

USMS should create a similar process. In the next chapter, we discuss 

issues that we discovered in the investigation of allegations of sexual 

misconduct and sexual harassment to headquarters. 

33
 
 

 

 

 

CHAPTER 3: THE INVESTIGATION PROCESS 

Components should have established criteria to determine whether 

an allegation is a management matter that can be handled locally or 

whether it warrants full investigation at headquarters. We found that 

ATF, DEA, and FBI have criteria regarding opening at their headquarters 

of investigations into allegations of sexual misconduct and sexual 

harassment. Although ATF generally followed established criteria for 

making such decisions, we found instances in which the FBI failed to 

follow its criteria and instances where the DEA failed to fully investigate 

allegations. USMS does not have established criteria, but generally 

seemed to make appropriate determinations about when to initiate an 

investigation in such matters. 

DEA and FBI have established criteria to determine whether, after 

an allegation has been reported to headquarters, it should be 

investigated there or it can be referred back to be handled locally as a 

management matter. However, we found instances at DEA’s Office of 

Professional Responsibility where it failed to fully investigate an 

allegation, or to even open an investigation on a particular subject, 

despite a recommendation from the assigned investigator. 

At the FBI, we found instances where the Internal Investigations 

Section (IIS) at FBI headquarters did not open an investigation into 

allegations of sexual misconduct and sexual harassment, despite 

evidence in the case file reflecting that the subject had committed similar 

alleged misconduct in the past. In some instances, FBI’s Internal 

Investigations Section referred such matters back to the field and 

recommended only counseling and sensitivity training. 

The USMS does not have established criteria for determining 

whether an allegation should be handled locally or investigated at 

headquarters. Nevertheless, we generally found that the USMS made 

appropriate determinations about when to initiate an investigation at 

headquarters in such matters. Finally, we found that ATF generally 

followed its established criteria for determining whether an allegation 

should be handled locally or investigated at headquarters. 

We describe our concerns about the DEA’s and the FBI’s practices 

in more detail below. 

34
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DEA 

Generally, we found that the DEA OPR fully investigates all 

reported allegations of misconduct and does not refer matters back to 

local supervisors unless the matter reported is clearly a management or 

performance-related issue. This was true in 74 of the 77 cases 

(96 percent) we reviewed. We found that in 2 of the 77 cases the DEA 

OPR failed to fully investigate such cases, and we believe the DEA OPR 

closed the matters prematurely. While not great in number, we found 

these instances particularly troubling, and discuss them briefly below. 

In related allegations involving the agents discussed in Case 1 of 

Chapter 1 above, the initial complaint alleged that a third agent also was 

involved in the solicitation of prostitutes. In an interview with the DEA 

OPR, the agent admitted traveling to the same overseas office on TDY 

approximately 20 times, to knowing both of the other subjects of the 

prostitution allegations, and to socializing with one of them. However, he 

denied soliciting prostitutes or knowing whether the other two SAs had 

solicited prostitutes. 

Despite the third agent’s admissions, it appears from our review of 

the file that the DEA OPR conducted only that one interview and then 

closed this case. When we asked the DEA OPR Inspector assigned why 

the case was closed without any additional investigation, the Inspector 

stated, “If you look a man in the eye and he answers no, then the answer 

is no - to do more is above my pay grade.” We disagree and, at the very 

least, believe that the DEA OPR should have investigated further to 

determine the validity of these allegations, especially given the 

admissions regarding the agent’s association with the other two SAs. 

The second case involved an Assistant Regional Director (ARD) who 

allegedly solicited prostitutes at a farewell party held by the DEA 

overseas Country Office in the ARD’s honor, and on other occasions. 

These allegations were made by a witness described in the DEA Case 

Example in Chapter 2, who recalled that six prostitutes were present at 

the farewell party, which took place in one of the agent’s governmentleased quarters. However, in his interview with DEA OPR, the ARD 

denied the allegations, stating that if anyone said he attended parties 

where prostitutes were present, they would be “100% lying.” 

Despite the DEA OPR Inspector’s recommendation to include the 

ARD as a subject, the DEA OPR did not do so or, as far as we could tell, 

conduct any further investigation. Given the circumstances and the 

nature of the allegations, we believe the DEA OPR should have further 

investigated the allegations against the ARD, who was the highest 

ranking official alleged to have been involved with prostitutes. 

35
 
 

 

 

 

 

 

 

 

 

 

 

 

FBI 

Although the FBI has established criteria for determining whether 

an investigation should be opened at headquarters rather than being 

handled locally, we found that in 53 of 218 cases (24 percent) the FBI did 

not open headquarters investigations into allegations of sexual 

misconduct and sexual harassment, including 4 cases where the subject 

had reportedly committed such misconduct in the past. In 45 of these 

53 cases (85 percent), the FBI closed the matter without further 

investigation, counseled the subject, or the subject was disciplined on 

other charges. In 8 of the 53 cases (15 percent), the allegations appeared 

to fall within Offense Code 5.20, Sexual Harassment, requiring a 

headquarters investigation, but FBI failed to conduct one and instead 

referred the matters back to the field and recommended counseling and 

training. 

In interviews, we learned that the FBI Internal Investigations 

Section relies on the FBI offense table and staff experience to determine 

whether an allegation should be investigated at headquarters, referred 

back to the field for investigation, or closed. The FBI offense table also 

contains designations in certain offense categories where the 

investigation can be delegated to the field, and there are no offense 

categories of a sexual nature in the FBI offense table that allow for a field 

investigation. Nevertheless, we found instances in which serious sexual 

misconduct allegations were referred back to the field. We discuss two 

cases below. 

Case #1: According to case file we reviewed, on at least four occasions, a 

Management and Program Analyst (MAPA) was alleged to have made 

inappropriate comments of a graphic sexual nature to a contract 

employee, which included comments about the contractor’s “anatomical 

body parts and breasts.” The contractor was too embarrassed to repeat 

the specific comments, but another employee who witnessed the alleged 

misconduct reported it to division management. The contract employee 

also alleged that the MAPA made inappropriate comments, not of a 

sexual nature, that she perceived as demeaning to other female 

employees. 

Even though division management had counseled the MAPA in the 

past for making demeaning comments to other employees, the IIS 

declined to open an investigation. Instead, the IIS relied upon division 

management to counsel the MAPA about the comments. During the 

counseling, the MAPA stated that the comments were “jokes” between 

friends and were not meant to be disturbing or offensive. The Unit Chief 

documented the counseling and provided a written record to the MAPA 

so he was clear as to what was discussed. The Unit Chief also changed 

36
 
 

 

 

 

 

 

 

 

 

 

 

the MAPA’s hours of work, closely supervised the MAPA, and sent the 

MAPA to interpersonal skills training. The IIS was satisfied with the 

division management’s handling of the alleged misconduct and advised 

the division to monitor the situation and report any further incidents to 

headquarters. 

We note that the Department has a zero tolerance policy on 

harassment in the workplace.43 In this particular matter, division 

management appeared to treat the alleged conduct seriously by taking 

some corrective action; but we nevertheless found these allegations 

should have been fully investigated at headquarters because the 

comments made about the contractor appear to fall within the Sexual 

Misconduct – Non Consensual offense category. Based on the FBI offense 

table, this offense category warrants a headquarters investigation and 

cannot be handled solely in the field. The Unit Chief’s description of the 

misconduct as “sexually harassing” when reporting the allegations to IIS 

and the fact that the penalty range of Sexual Misconduct – NonConsensual does not include counseling provides additional support for 

ensuring that the matter was investigated at FBI headquarters rather 

than handled in the field. 

Case #2: An anonymous complaint alleged that a Supervisory 

Intelligence Analyst (IA) allegedly made unwanted sexual advances and 

remarks to several female employees in five specified instances. One of 

the female employees alleged that the subject followed her around the 

office until she discovered the subject was doing so. Upon being the 

discovered, the subject pretended that he had gotten lost, despite having 

worked in office for 2 years. In another incident, the subject reportedly 

made romantically suggestive remarks toward a female employee after 

learning that she was single. The subject then initiated a hug with the 

employee and touched their cheeks together. The female employees were 

not identified in the complaint. Even though the IIS had received three 

other complaints against the subject about other alleged misconduct, the 

IIS declined to investigate the allegations and instead recommended that 

the field division counsel the subject.44 

A few months after the first complaint, the IIS received a second 

anonymous complaint alleging that the same subject had made an 

inappropriate comment to a new IA in the division. The complainant 

43 See http://ww.justice.gov/jmd/eeos/agmemo.html 

44 This case was not originally provided by the FBI in response to our data and 

document request, and was determined to be within the scope of our review with the 

assistance of the OIG Investigations Division. 

37
 
 

 

 

 

 

 

 

alleged that the subject stated to her, “If I was not married, I would be all 

about you.” She further alleged that the subject “preys on young females 

that are fairly new to the Bureau and knows they are too afraid to report 

his comments.” The IIS again determined the allegations did not warrant 

a full investigation at headquarters, and instead recommended that 

division management treat the matter as a performance issue and 

counsel the subject again. In a written comment on the allegation 

summary, an IIS official noted, “It is obvious someone does not like [the 

subject].” 

Given the repeated nature and substance of the comments the 

subject allegedly made, we believe that the alleged misconduct falls 

squarely within Offense Code 5.20, Sexual Harassment, which includes 

unwanted sexual advances. Since field investigations are not permitted 

for this offense category, we found that the FBI IIS should have opened a 

headquarters investigation as required by FBI policy. 

In the next chapter of this report, we discuss issues that we 

discovered in the adjudication process. 

38
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 4: THE ADJUDICATION PROCESS 

Our review of the law enforcement offense tables found that the 

FBI, DEA, and USMS offense tables contain specific offense categories to 

address allegations of sexual misconduct and sexual harassment and to 

provide guidance on the appropriate range of penalties that could be 

imposed.45 However, we determined that for some offense categories, the 

DEA and USMS offense tables do not provide adequate explanations of 

the types of behaviors that warrant possible disciplinary action. Further, 

we found that these components applied general offense categories to 

misconduct we believe is more appropriately addressed by the specific 

sexual harassment and sexual misconduct offense categories contained 

in their offense tables. 

The ATF offense table does not contain specific offense categories 

to address sexual misconduct and sexual harassment. Instead, the 

offense table contains general descriptions of the types of misconduct 

that could be charged under various offense categories with a broad 

range of possible penalties.46 

While the FBI offense table contains specific language to address 

the solicitation of prostitutes overseas even where the conduct is legal or 

tolerated, we found that the ATF, DEA, and USMS offense tables do not 

contain specific language to address this form of misconduct.47 As a 

result, the employees of these components may not know whether it is 

prohibited and may not have adequate notice of the range of penalties 

that could be imposed. 

See Appendix 3 for detailed information on the types of offense 

categories used by the law enforcement components to address sexual 

misconduct and sexual harassment. 

45 During adjudication, an adjudicative case file contains only information 

relating to an individual subject. Therefore, when discussing the adjudicative process, 

we refer to each subject as a case. Note that “case” in this chapter carries a different 

meaning than in other sections of the report. 

46 ATF, the DEA, and the FBI use “activity codes” that more accurately reflect 

the type of alleged misconduct committed by an employee. Presumably, these codes 

could be used to determine the nature and frequency of alleged sexual misconduct and 

sexual harassment. However, the activity codes are assigned to an allegation at the 

beginning of the investigation and may not reflect the allegations that were 

substantiated at the close of the investigation. 

47 See U.S. Department of Justice Office of the Inspector General, Review of 

Policies and Training Governing Off-Duty Conduct by Department Employees Working in 

Foreign Countries, Report 15-2, January 2015. 

39
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATF 

The ATF Guide for Offenses and Penalties (the Guide or ATF 

offense table) is used to provide guidance concerning the types of 

discipline that may result when an employee commits misconduct. The 

Guide is divided into 11 sections.48 Despite the extensive number of 

offense categories, the Guide does not contain any specific category 

designed to address sexual misconduct allegations. The ATF offense 

table contains an offense category directed at supervisors for failing to 

report allegations of sexual harassment, but it does not address the 

underlying misconduct directly. Moreover, this offense category does not 

define sexual harassment, and it is not specifically defined anywhere in 

the table. 

Based on the explanations provided in the Guide, there are a 

number of general offense categories where sexual misconduct could be 

charged. For example, under the offense category, Poor Judgment and/or 

Conduct Unbecoming a Federal Employee/Special Agent, the explanation 

describes, “engaging in sexual activity in an ATF office space or 

government vehicle” as conduct that may warrant a charge under this 

offense category. 

In the explanation for the offense category Inappropriate Behavior, 

the Guide states that an ATF employee who is “inappropriate toward coworkers, subordinates, or supervisors by teasing, jokes, gestures, or 

display of materials of a sexual nature, or an employee who makes 

sexual remarks” may be charged under this offense category. Given the 

explanation contained in this offense category, misconduct equivalent to 

sexual harassment could be charged under this offense category. 

Finally, the explanation for the offense category Association with 

Disreputable Persons describes “improper personal relationships with 

convicted felons, informants and subjects of investigations” as conduct 

they may be charged under this offense category. We describe ATF’s use 

of the offense categories below: 

•	 In 6 of the 12 (50 percent) adjudicated sexual misconduct 

cases, the ATF Deciding Official charged employees under the 

Poor Judgment and/or Conduct Unbecoming offense category. 

The cases involved 1 improper association with a criminal 

48 The 11 sections in the ATF Guide for Offenses and Penalties are: 

(1) government property and resources, (2) government-owned vehicles, (3) ATF-issued 

firearms, (4) improper use of force/weapons, (5) general integrity related misconduct, 

(6) drugs and alcohol, (7) falsification, (8) misconduct connected to performance of 

duties, (9) attendance, (10) improper handling of evidence or property taken into bureau 

custody, and (11) security. 

40
 
 

 

 

 

 

 

 

 

 

 

 

element case, 3 “sexting” cases, 1 case involving solicitation of 

prostitutes, and the case we discussed in Chapter 2 involving 

solicitation of multiple consensual sex partners while on official 

travel.49 

•	 In three cases, the subjects were charged with Misuse of their 

Government Vehicle to facilitate an intimate or sexual 

relationship. In two of these three cases, the subjects had also 

committed multiple offenses (inappropriate relationship with a 

subordinate in one case and lack of candor, falsification of 

government documents, and misuse of government property in 

the other case) and were charged accordingly. 

•	 The remaining three cases related to sexual harassment. Two 

of the subjects committed misconduct described as a violation 

of ATF Order 1050.5, Prevention and Elimination of Sexual 

Harassment in the Workplace. However, as we noted above, this 

offense category is not discussed in the ATF offense table as a 

separate category. In one case the subject was removed from 

service, while in another case the subject received a letter of 

caution.50 The three subjects were not charged under the 

Inappropriate Behavior offense category, which contains 

explanatory language in the offense table that describes 

misconduct that is comparable to sexual harassment. 

Although the unofficial offense category based on the ATF Order 

captures the type of misconduct committed, the subject employees would 

not have notice of the range of penalties because it is not included in the 

ATF offense table. 

In interviews, ATF officials acknowledged that there are no specific 

offense categories in the ATF offense table to address sexual misconduct 

and sexual harassment. According to these officials, the ATF 

Professional Review Board and the ATF Deciding Official generally charge 

employees who commit this type of misconduct using the Poor Judgment 

and Conduct Unbecoming a Federal Employee/Special Agent offense 

categories. 

ATF officials also commented that this type of misconduct has not 

been an area of concern because it appears to occur infrequently. 

49 Based on the substantiated allegations described in the case file, the subject 

could have been charged with Association with Disreputable Persons. 

50 For the ATF employee who was removed from service, ATF has no additional 

information that the employee appealed the decision through the MSPB. 

41
 
 

 

 

 

 

 

 

 

 

 

 

However, ATF officials said that they recognized the deficiencies in their 

offense table as compared to the other law enforcement components. We 

were told that in early 2013 ATF constituted a working group to revise 

the offense table to include new offense categories to address sexual 

misconduct and sexual harassment. On January 29, 2015, we were told 

that the ATF Guide to Offenses and Penalties had been updated on 

October 1, 2014; however, no new offense for sexual misconduct and 

sexual harassment was included because ATF believes that the existing 

charges already address those matters. In addition, ATF informed the 

OIG that the working group will be reviewing the ATF Guide for Offenses 

and Penalties on an annual basis. 

In interviews, we learned that the offense table is included in the 

Integrity Bulletins provided to employees. However, because the offense 

tables do not contain specific language regarding prohibited behavior, 

ATF employees may not know what types of conduct are prohibited and 

may not have adequate notice of the range of penalties that could be 

imposed. In addition, there is also a risk that inconsistent penalties 

could be imposed for similar misconduct based upon vagaries in 

classification. Further, it may be difficult for ATF to easily determine the 

frequency of this type of misconduct or any trends in the types of 

allegations reported that might be helpful in assessing the need for 

further guidance and training. 

DEA 

The DEA Guide of Disciplinary Offenses and Penalties (the DEA 

Guide or DEA offense table) is divided into 11 sections and is the offense 

table DEA uses to provide guidance concerning the types of discipline 

that may result when an employee commits misconduct.51 There are 

seven offense categories in the DEA offense table summarized in 

Appendix 3 that could address allegations of sexual misconduct and 

sexual harassment. Four of the seven categories are specifically 

designed to address such behavior. The DEA Guide describes the offense 

category Unprofessional or Inappropriate Conduct of a Sexual Nature as 

“teasing, jokes, actions, gestures, display of materials or remarks of a 

sexual nature.” The penalty for this offense ranges from reprimand to 

removal. 

51 The 11 sections in the DEA Guide of Disciplinary Offenses and Penalties are: 

(1) attendance issues, (2) fiscal issues, (3) false statements or incorrect official 

documents, (4) harassment/discrimination, (5) law enforcement specific offenses, 

(6) failure to follow, (7) negligent work, (8) health and safety issues, (9) security issues, 

(10) supervisory misconduct, and (11) conduct prejudicial to the DEA and the 

Department. 

42
 
 

 

 

 

 

 

 

The DEA Guide cites Title VII of the Civil Rights Act of 1964 when 

defining the Sexual Harassment offense category in the offense table, 

which also contains an offense category for “Retaliation against an 

employee resulting from or in connection with an allegation of sexual 

harassment.” However, the only penalty suggested for both of these 

violations is removal. 

The DEA Guide also contains other offense categories that do not 

specifically address sexual misconduct but may, under certain 

circumstances, be considered sexual misconduct, including Improper 

Association with a Convicted Felon, Confidential Source and/or Persons 

Connected with Criminal Activity, Disrespectful or Unprofessional Conduct, 

Conduct Unbecoming a DEA Employee, and Criminal, Dishonest and 

Notoriously Disgraceful Conduct. The categories Conduct Unbecoming a 

DEA Employee and Criminal, Dishonest and Notoriously Disgraceful 

Conduct are not defined in the offense table. 

We found that even though two DEA offense categories are 

specifically designed to address allegations of sexual misconduct and 

sexual harassment, no DEA employees with substantiated allegations 

were charged under either of them. Instead, in 20 of 33 (61 percent) 

adjudicated cases, the employees were charged under the general offense 

categories. Where the subject committed multiple offenses, they were 

charged under additional offense categories based on the facts of the 

case. We describe the DEA’s use of the offense categories below: 

•	 In 10 adjudicated cases we reviewed, the alleged misconduct 

appeared to involve allegations of sexual harassment, yet none 

of the subjects were charged under that offense category. 

Instead, they were charged with Conduct Unbecoming DEA 

Agent/Non-Agent exclusively, or with both Conduct Unbecoming 

and Failure to Follow Written Instructions. 

In interviews, a DEA disciplinary official said that he is reluctant to 

charge an employee with sexual harassment because he believes most 

DEA employees do not commit sexual harassment that would rise to the 

level of a Title VII violation, for which the only penalty under the offense 

table is removal. When we asked why the Sexual Harassment offense 

category is in the offense table if DEA officials do not use it, one DEA 

official who is heavily involved in the discipline process responded, “It’s 

for show.” 

•	 In seven adjudicated cases we reviewed, the alleged misconduct 

appeared to involve the solicitation of prostitutes, both 

domestically and overseas, but none of the subjects were 

charged under Criminal, Dishonest or Notoriously Disgraceful 

43
 
 

 

 

 

 

 

 

 

Conduct, a category that other government agencies use to 

address this form of misconduct. Instead, they were charged 

with Conduct Unbecoming a DEA Employee, Poor Judgment, or 

were charged under both of these offense categories. However, 

we determined that there is no Poor Judgment offense category 

in the DEA Guide. Therefore, some DEA employees are being 

charged inconsistently, which raises a potential that employees 

may receive inconsistent penalties for similar misconduct. 

•	 In three adjudicated cases we examined, the alleged misconduct 

involved multiple offenses, including an inappropriate 

relationship between a supervisor and subordinate, an 

inappropriate relationship between a DEA employee and a 

vendor, improper association with a criminal element, and 

covertly videotaping a naked female. These cases could have 

been charged under Unprofessional or Inappropriate Conduct of 

a Sexual Nature or Improper Association with a Convicted Felon 

rather than Conduct Unbecoming and Poor Judgment. As a 

result, some DEA employees are being charged inconsistently 

for similar conduct because proposing/deciding officials have 

greater discretion when imposing discipline under these catchall offense categories. 

By contrast, in the remaining 13 adjudicated cases we reviewed, 

DEA officials appear to have charged the subject under the most 

applicable offense category. In one case, the alleged misconduct involved 

an improper association with a confidential informant (sexual 

relationship) and making false statements and the subject was charged 

under those respective offense categories. The remaining 12 cases 

involved the transmission of sexually explicit e-mail, text messages, and 

images. Those cases were charged under Misuse of Government Property. 

In interviews, DEA officials explained that they are afforded wide 

latitude when making discipline decisions under the Conduct 

Unbecoming a DEA Employee offense category, which supports penalties 

ranging from a letter of reprimand to removal. When we asked why DEA 

officials do not charge under the Criminal, Dishonest or Notoriously 

Disgraceful Conduct or Inappropriate Conduct of a Sexual Nature offense 

categories where the subject had solicited prostitutes, one DEA official 

told us that Conduct Unbecoming or Poor Judgment has always been 

charged in cases of this type. The DEA official also stated that the 

Criminal, Dishonest or Notoriously Disgraceful Conduct offense category 

offers less flexibility to proposing and deciding officials, with penalties 

ranging from suspension of 14 days to removal. He said that therefore, 

DEA officials have traditionally not used it. However, our review of the 

44
 
 

 

 

 

 

 

 

 

DEA Guide showed Unprofessional or Inappropriate Conduct of a Sexual 

Nature contains the same penalty range as Conduct Unbecoming. 

This DEA official also told us that DEA officials have not charged 

employees with a penalty greater than a suspension of 14 days (a 

suspension of greater than 14 days would be considered an adverse 

action) in prior cases involving the solicitation of prostitutes where the 

conduct was legal or tolerated in the jurisdiction. He said that therefore 

it would not be appropriate to charge a DEA employee under the 

Criminal, Dishonest or Notoriously Disgraceful Conduct offense category in 

such circumstances. 

We found that DEA has two specific offense categories, Sexual 

Harassment and Unprofessional or Inappropriate Conduct of a Sexual 

Nature, that are adequate to address allegations of sexual misconduct 

and sexual harassment, and yet we observed that DEA officials 

overwhelmingly charge employees under the most general offense 

category in their guide, Conduct Unbecoming a DEA Employee. Since the 

only penalty listed under the Sexual Harassment offense category is 

removal, it is understandable why officials may be reluctant to lose all 

flexibility in addressing situations where the circumstances and any 

mitigating factors may vary significantly. 

DEA might consider amending the penalties for this offense 

category to provide somewhat greater flexibility along the lines of the 

identical category in the USMS offense table, though that has not 

resulted in greater use of the category as discussed below. Moreover, the 

offense category Unprofessional or Inappropriate Conduct of a Sexual 

Nature has a range of penalties from letter of reprimand to removal, and 

we believe that this offense category could be properly charged in a 

variety of situations where the alleged conduct was sexual in nature. 

In addition, we found that DEA officials have unofficially created 

the Poor Judgment offense category, which is not included in the offense 

table. The use of an offense category not listed in the table is of 

particular concern because there is no explanation for when it may be 

applied or what range of penalties may be imposed. By disregarding the 

DEA Guide and using this offense category, proposing and deciding 

officials are provided more discretion than what the offense table already 

provides. The only limit to this discretion is the requirement that 

proposing and deciding officials must consult prior cases when rendering 

disciplinary decisions. 

When DEA officials use general offense categories to make 

disciplinary decisions, DEA employees may not know what types of 

conduct are prohibited and may not have adequate notice of the range of 

45
 
 

 

 

 

 

 

 

 

 

 

penalties that could be imposed. There is also a risk that inconsistent 

penalties could be imposed for similar misconduct. 

Further, it may be difficult for DEA to easily determine the 

frequency of this type of misconduct or any trends in the types of 

allegations reported. In fact, when we initially requested case 

information regarding misconduct allegations of this type for our review, 

DEA officials repeatedly told us how difficult it would be for them to 

determine the number of allegations that occurred during our study 

period. These DEA officials cited DEA investigators’ and adjudicators’ 

use of general offense categories as one of the reasons that the OIG’s 

request presented challenges. 

FBI 

The FBI Offense Table and Penalty Guidelines (the Guidelines) 

outline a range of penalties applicable to various types of employee 

misconduct. Of the law enforcement components, the FBI offense table 

has the greatest number of offense categories that could apply to sexual 

harassment and sexual misconduct. The Guidelines divide offenses into 

five sections, with five general and six specific offense categories designed 

to address this form of misconduct.52 The general offense categories 

include Disruptive Behavior, Other Felonies, Other Misdemeanors, and 

Unprofessional Conduct On and Off Duty. See Appendix 3 for more 

detailed information about these offense categories. 

The specific offense categories contained in the table include 

Asset/CW/Informant/CHS (Source) – Improper Personal Relationship, 

Indecent/Lascivious Acts, Improper Relationship – Superior/Subordinate, 

Improper Relationship with a Criminal Element, and Sexual Harassment 

and Sexual Misconduct – Consensual. 

Although we found that the FBI offense table has six specific 

offense categories that could adequately address sexual misconduct and 

sexual harassment, we also found that in some cases general offense 

categories were used. We describe the FBI’s use of the offense categories 

below: 

•	 In 41 of the 102 (40 percent) adjudicated sexual misconduct 

and sexual harassment cases, FBI officials charged employees 

under the Unprofessional Conduct – Off Duty and Unprofessional 

Conduct – On Duty offense categories. In 14 of the 41 cases, the 

52 The FBI Offense Table and Penalty Guidelines is divided into five sections 

including: (1) investigative misconduct, (2) integrity/ethical misconduct, (3) property 

related misconduct, (4) illegal/criminal conduct, and (5) general misconduct. 

46
 
 

 

 

 

 

 

FBI offense table contained specific offense categories that we 

believe more specifically reflected the conduct committed. 

•	 In 4 of the 16 of the adjudicated cases involving alleged sexual 

harassment, inappropriate touching and/or groping, the 

subjects were charged under the unprofessional conduct 

offense categories rather than Sexual Harassment or Sexual 

Misconduct – Non-Consensual offense categories. 

•	 Despite having a clear offense category in the FBI offense table 

designed to address inappropriate personal relationships with 

confidential sources, witnesses, and informants, FBI officials 

charged 2 of the 5 subjects who committed this offense under 

the unprofessional conduct offense categories. In 6 of the 11 

adjudicated cases involving the solicitation of prostitutes, the 

subjects were charged under the unprofessional conduct 

offense categories rather than under the Indecent/Lascivious 

Acts offense category. 

In one of the six cases, where the subject was charged with 

Unprofessional Conduct – Off Duty rather than Indecent/Lascivious Acts, 

we found this decision particularly troubling given that the subject, a 

former Assistant Section Chief responsible for training agents and others 

abroad on child exploitation and human trafficking issues, had engaged 

in multiple consensual and commercial sexual encounters over a 7-year 

period with foreign nationals, including prostitutes, strippers, students 

in his classes, and members of foreign law enforcement. In addition, 

false and misleading reports the subject made after his conduct was 

discovered would have warranted charging him under the Lack of Candor 

and False/Misleading Information – Employment/Security Document. 

Despite this troubling case, we found that of the four law 

enforcement components, the FBI’s offense table can serve as a model for 

the other components in that it clearly addresses allegations of sexual 

misconduct and sexual harassment. According to the FBI offense table, 

the Unprofessional Conduct offense categories were fashioned to aid 

deciding officials in rendering decisions when there was no other specific 

offense category adequate to address the misconduct committed. 

However, when FBI or other officials disregard the specific offense 

categories in the offense table, the only check on their discretion is the 

requirement that proposing and deciding officials consult case precedent 

when making disciplinary decisions. Therefore, charging employees 

under general offense categories could result in the imposition of 

inconsistent penalties. Further, when charging officials disregard the 

offense table in this manner, FBI employees may not have full notice 

47
 
 

 

 

 

 

 

 

 

 

 

 

regarding the types of conduct that are prohibited and the range of 

penalties that could be imposed. 

In addition, charging employees under general offense categories 

may prevent the FBI from being able to determine the overall number of 

reported sexual misconduct and sexual harassment cases. When we 

initially requested case information on misconduct allegations of this 

type, FBI officials repeatedly explained how difficult it would be to 

determine the number of allegations that occurred during the study 

period. The FBI officials cited the adjudicators’ use of general offense 

categories as one of the reasons why the OIG’s request presented 

challenges. 

USMS 

The USMS Guidance Table of Disciplinary Offenses and Penalties 

(the Guide) is divided into 11 sections and is virtually identical to the 

DEA Guide for Disciplinary Offenses and Penalties.53 

Similar to the DEA Guide, there are eight offense categories that 

could be used to address allegations of sexual misconduct. Three of the 

eight categories are specifically designed to address it. The Guide 

describes the offense category Unprofessional or Inappropriate Conduct of 

a Sexual Nature as “teasing, jokes, actions, gestures, display of materials 

or remarks of a sexual nature.” The penalty for this offense ranges from 

reprimand to removal. 

The Guide cites Title VII of the Civil Rights Act of 1964 when 

defining the sexual harassment offense category, and it contains another 

offense category, Retaliation against an Employee Resulting from or in 

Connection with an Allegation of Sexual Harassment. Unlike the DEA 

Guide, the penalty for sexual harassment at USMS ranges from a 5-day 

suspension to removal. The penalty for retaliation resulting from an 

allegation of sexual harassment ranges from reprimand to removal. 

We determined that the Guide also contains other offense 

categories that do not specifically address sexual misconduct, but may, 

under certain circumstances, be considered sexual misconduct, 

including Improper Association with a Convicted Felon or Witness 

Protection Program Participant, Confidential Source and/or Persons 

Connected with Criminal Activity, Conduct Unbecoming a USMS Employee, 

53 The Guide has 11 sections: (1) attendance issues, (2) fiscal issues, (3) false 

statements or incorrect official documents, (4) harassment/discrimination, (5) law 

enforcement specific offenses, (6) failure to follow, (7) negligent work, (8) health and 

safety issues, (9) security issues, (10) supervisory misconduct, and (11) conduct 

prejudicial to USMS and the Department. 

48
 
 

 

 

 

Criminal, Dishonest and Notoriously Disgraceful Conduct, Disrespectful or 

Unprofessional Conduct, and Off-duty Misconduct. We noted that the 

USMS Guide does not specifically define Criminal, Dishonest and 

Notoriously Disgraceful Conduct, Conduct Unbecoming a USMS employee, 

and Off-duty Misconduct in the table. 

We found that even though two USMS offense categories are 

specifically designed to address allegations of sexual misconduct and 

sexual harassment, no USMS employees with substantiated allegations 

were charged under either of them. Instead, in 21 of 32 (66 percent) 

adjudicated cases, the USMS officials charged employees under the 

general offense categories. Where the subject committed multiple 

offenses, they were charged under additional offense categories based on 

the facts of the case. We discuss USMS’s use of the offense categories 

below: 

•	 In the only two adjudicated cases where the alleged misconduct 

appeared to involve allegations of sexual harassment, none of 

the subjects were charged under that offense category. Instead, 

they were charged with Conduct Unbecoming a USMS employee 

exclusively or Conduct Unbecoming and other offense categories 

based on the facts of the case. 

In interviews, USMS deciding officials told us that in the prior 

cases they review before making decisions, adjudicators had charged 

general offense categories. The officials told us that they had followed 

the decisions of their predecessors. 

•	 In three of the six adjudicated cases where the alleged 

misconduct involved the transmission of sexually explicit email, text messages, and images, the subjects were charged 

with Conduct Unbecoming rather than Misuse of Internet and/or 

Unauthorized Use of Federal Telecommunication System, 

Commercial Long Distance. 

•	 In five of the seven adjudicated cases where the alleged 

misconduct involved inappropriate relationships, the subjects 

were charged with Conduct Unbecoming, Violation of the Rules of 

Professional Responsibility, and Displaying Poor Judgment 

rather than Unprofessional or Inappropriate Conduct of a Sexual 

Nature. Similarly to DEA, Displaying Poor Judgment is not an 

offense category in the USMS offense table. 

•	 In all seven of the adjudicated cases where the alleged 

misconduct involved the subjects making inappropriate 

comments or gestures of a sexual nature, the subjects were 

49 
 

 

charged with Conduct Unbecoming and Disrespectful Conduct 

rather than Unprofessional or Inappropriate Conduct of a Sexual 

Nature. In one of these cases, no charge was specified in the 

letter of reprimand issued. 

•	 In two of the six adjudicated cases that involved a USMS 

employee having an inappropriate relationship with a criminal 

element, the subjects were charged with Conduct Unbecoming, 

Displaying Poor Judgment, or they were charged under both 

offense categories. As previously noted, Displaying Poor 

Judgment is not an offense category in the USMS offense table. 

One of the subjects was also charged under other specific 

offense categories based on the facts of the case. 

•	 In two cases, the subjects were charged with Conduct 

Unbecoming rather than Unprofessional or Inappropriate 

Conduct of a Sexual Nature or Misuse of Government Property. 

In one case, one DUSM and a courtroom clerk had sexual 

relations after hours in a courtroom, while in the other case the 

subject had sexual relations in USMS office space. 

By contrast, we found that in 11 of the 32 adjudicated cases 

involving the transmission of sexually explicit e-mail, text messages, and 

images; misuse of a government vehicle; improper associations with 

criminal elements; and inappropriate relationships, the subjects were 

charged under the more specific offense categories. 

We believe that charging USMS employees under general offense 

categories may result in USMS employees not having full notice as to 

what types of conduct are prohibited and the range of penalties that 

could be imposed. Further, the use of general offense categories by 

deciding officials may result in the imposition of inconsistent penalties 

and may prevent the USMS from being able to determine the overall 

number of sexual misconduct and sexual harassment cases. 

We also found that USMS officials created the Displaying Poor 

Judgment offense category, a category that is not included in the offense 

table. By disregarding the USMS Guide and using this offense category, 

proposing and deciding officials have more discretion than what is 

provided in the offense table. 

In the final chapter, we will discuss other issues we identified 

during our review of sexual misconduct and sexual harassment 

allegations. 

50
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 5: DETECTING AND RETAINING SEXUALLY EXPLICIT 

TEXT MESSAGE EVIDENCE 

According to a 2013 research study conducted by the Pew 

Research Center’s Internet and American Life Project, 91 percent of 

American adults own cell phones and more than three-quarters of them 

(81 percent) send and receive text messages.54 Therefore, it is no 

surprise law enforcement employees with government-issued mobile 

devices use this convenient and useful technology in their day-to-day 

business communications. However, some employees abuse this 

privilege and send sexually explicit text messages, images, and e-mails 

on their government-issued devices and computers. We found that all 

the components have weaknesses in detecting and tracking the 

transmission of sexually explicit text messages, also known as “sexting.” 

We also found that ATF, the DEA, and the USMS have weaknesses in 

detecting and tracking the transmission of sexually explicit images. 

Therefore, we were unable to determine the actual number of instances 

involving this type of misconduct. Despite not being able to determine 

the actual number, we found that sexting was the second most 

commonly alleged offense in the cases we examined.55 

We found that the FBI and USMS archive text messages sent and 

received by employees on their government-issued devices, so that they 

are available for investigators and as evidence in subsequent legal 

proceedings. However, the FBI is hampered in its ability to archive all 

text messages sent and received by its employees due to technological 

limitations. The FBI proactively monitors the text messages its 

employees receive but relies on third parties to provide text message 

data. Further, the FBI has disabled the ability to send images on 

employee BlackBerry devices. By contrast, the USMS does not 

proactively monitor text messages sent by its employees, despite its 

ability to do so, and cannot detect the transmission of sexually explicit 

photographs or images. 

We found that ATF and DEA are unable to archive the text 

messages of their employees and are generally unable to detect this form 

of misconduct. Further, misconduct investigators at ATF, the DEA, and 

the USMS cannot easily obtain text messages that may be important 

evidence in their investigations. In some instances, these components 

relied on the employees involved in the investigations to provide this 

54 Maeve Duggan, Pew Research Center’s Internet and American Life Project, 

Cell Phone Activities 2013, September 16, 2013. 

55 See Appendix 4 for additional information about this category of sexual 

misconduct. 

51
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

evidence. This is problematic because the employees providing the 

evidence may adulterate it or not provide complete evidence to the 

investigators. There is also a risk these components may be hampered in 

their ability to fulfill their discovery obligations. 

Discovery Obligations and Text Message Evidence 

The Department policies related to the disclosure of exculpatory 

and impeachment evidence, Disclosure of Exculpatory and Impeachment 

Information (Brady Policy), and Potential Impeachment Information 

Concerning Law Enforcement Witnesses (Giglio Policy), are set forth in the 

United States Attorneys’ Manual (USAM) at Sections 9-5.001 and 9­

5.100, respectively.56 A March 2011 memo from the Deputy Attorney 

General directed the leadership of the Department law enforcement 

components and the litigating divisions to ensure that all prosecution 

and law enforcement personnel participating as members of a 

“prosecution team” preserve “e-communications,” defined to include “emails, text messages, SMS (short message), instant messages (IM), voice 

mail, pin-to-pin communications [Personal Identification Number (PIN)], 

social networking sites, bulletin boards, blogs, and similar means of 

electronic communication,” as these e-communications may be 

discoverable prior to trial.57 

The guidance instructs members of the prosecution team to think 

about the content of any e-communication before sending it, ensure 

appropriate language is used, and determine in advance how to preserve 

potentially discoverable information. In addition, the guidance also 

recognized the unique challenges the components may face when 

attempting to produce (text, SMS, IM, PIN) evidence. The guidance 

instructs the components to provide guidance to employees on how to 

preserve this type of evidence and directs the components to document 

any inability to do so that it can be explained in court. 

56 See generally Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United 

States, 405 U.S. 150 (1972). 

57 See generally Memo to the Associate Attorney General and the Assistant 

Attorneys General for the Criminal Division, National Security Division, Civil Rights 

Division, Antitrust Division, Environment and Natural Resources Division, the Tax 

Division, the Directors of FBI, DEA, USMS, ATF, and the BOP, and all United States 

Attorneys from Deputy Attorney General, James M. Cole, Guidance on the Use, 

Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases, 

March 30, 2011. The “prosecution team” for this purpose includes federal, state, and 

local law enforcement officers and other government officials participating in the 

investigation and prosecution of the criminal case against the defendant. USAM 9­

5.001. 

52
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In relation to e-communications, there are a variety of 

circumstances in which such communications may constitute or contain 

discoverable material under these standards.58 For example, ecommunications may indicate a possible relationship, intimate or 

otherwise, between a member of the prosecution team and a victim, 

cooperating witness, informant, or other source of information that may 

serve as bias or improper motive evidence or otherwise be a subject for 

impeachment of the government witness.59 

Law Enforcement Witnesses and Brady/Giglio Issues 

Although Agency Officials at some of the components review e-mail 

messages for possible Brady/Giglio issues, Agency Officials at ATF and 

the DEA told us that they do not review text messages for these issues 

because they lack the technology to archive such material. Instead, they 

said they rely on the law enforcement witnesses at these components to 

provide prosecutors with what they deem to be relevant text messages.60 

By allowing law enforcement witnesses to independently determine what 

text message evidence is subject to discovery under Brady or Giglio, 

without further oversight or review, there is a risk that witnesses may 

not provide all relevant text messages or may adulterate the text 

messages before providing them. In addition, under the Department’s 

Giglio Policy, Agency Officials should consult with prosecutors assigned 

to the cases to determine whether case law or court rulings in the district 

require broader disclosures to ensure that all potentially discoverable 

material is disclosed. 

The Deputy Attorney General’s March 2011 memo warned the 

components that the preservation of certain messaging formats including 

text, SMS, instant, and PIN presented unique challenges and posed risks 

for the Department’s cases if these messaging formats were not 

58 Although our primary discussion centers on Brady/Giglio obligations, this 

issue may also arise in discovery during civil cases. For example, if someone sues for 

sexual harassment, the component might be obligated to produce text message 

evidence during discovery. 

59 See generally United States v. W.R. Grace, 401 F. Supp. 2d 1069 (D. Mont., 

2005), where the government’s main cooperating witness exchanged roughly 200 emails with the lead case agent over a 4-year period leading up to trial. The defense did 

not learn about these e-mails until partway through the cooperating witness’s cross 

examination. The court determined the e-mails showed significant bias in the form of 

the cooperator’s extensive relationship with the government agents and animus toward 

the defendant, and instructed the jury to that effect. 

60 It is ATF and DEA policy that all substantive case-related text messages be 

preserved and potentially be made available during discovery. 

53
 
 

 

 

 

 

 

 

 

 

 

preserved. In an interview with an Office of the Deputy Attorney General 

(ODAG) official, we learned that these challenges have confronted the law 

enforcement components for several years and are yet to be fully 

resolved. 

For years, federal judges have required companies to implement 

costly litigation holds covering offices worldwide to preserve potentially 

discoverable text messages in civil and criminal cases.61 After 

unfavorable court rulings, ODAG officials recognized the importance of 

this issue and constituted a working group to address it. According to 

ODAG officials we interviewed, the working group included 

representatives from ATF, the DEA, and the FBI.62 During discussions 

over the last 3 years, ODAG officials said they cautioned the components 

about the risks associated with not establishing a system for archiving 

text messages in the same manner e-mail messages are archived on their 

backup servers. 

At the working group meetings, both ATF and DEA told ODAG 

officials that they are unable to archive the text messages of their 

employees because the operating systems they currently use would need 

to be completely restructured to preserve text messages. Our interviews 

with ATF and DEA also confirmed this. 

FBI officials told ODAG it is now able to archive all text messages 

sent and received by its employees. FBI officials provided the OIG with 

an explanation regarding the technological limitations associated with 

archiving all text messages sent and received by its employees. 

61 A litigation hold (also known as preservation orders or hold orders) is a 

stipulation requiring a company to preserve all data that may relate to a legal action. 

62 The USMS was not a part of the working group. ODAG personnel stated that 

its absence from this meeting was an oversight. 

54
 
 

 

 

 

 

 

 

 

 

Retention of Text Messages – FBI 

An FBI Enterprise Security Operations Center (ESOC) official told 

the OIG that the FBI archives and proactively monitors the text messages 

of employees through the use of a proprietary database developed 

internally. Further, the FBI has disabled the ability to send images via 

employee BlackBerry devices. 

According to FBI officials responsible 

for managing this effort, the ESOC 

collects copies of BlackBerry 

diagnostic logs sent from Research 

in Motion (RIM), the company that 

makes BlackBerry devices.63 The 

FBI preserves the diagnostic logs on 

the Criminal Justice Information 

Services (CJIS) servers for a period of 

90 days. ESOC personnel told us 

they then store all the diagnostic 

logs they receive from RIM in a 

separate database at FBI 

headquarters for a period of 25 

years. ESOC personnel can filter 

the data from these diagnostic logs 

based on a telephone number, a 

date, or the name of the recipient of 

the text message. The ESOC official 

said that keyword word searches are 

possible but can be more 

challenging. 

ESOC officials also told us 

that generally the data obtained 

from these diagnostic logs is useful, 

but complained that data is often 

missing from the logs. According to 

the ESOC, there are several reasons 

for this. First, the diagnostic logs 

help debug functions and 

troubleshoot issues but do not 

comprise a complete audit history of 

text message content sent and 

New Jersey Court Questions FBI’s 

Text Message Preservation 

Capabilities 

In United States v. Suarez, 2010 WL 

4226524 (D.N.J. October 21, 2010), a 

key cooperating witness who assisted 

the government in its investigation of 

public corruption in New Jersey from 

2008 through 2009 participated in 

multiple recorded meetings with 

targets of the investigation, during 

which the cooperator exchanged 

numerous text messages with three 

FBI agents. The exchange of text 

messages could be seen on video 

recordings and was visible to the 

defense when viewed. In response to 

a defense request, the FBI attempted 

to obtain the text messages but could 

not provide them all because they 

were erased in accordance with the 

FBI CJIS 90-day retention policy for 

storing BlackBerry diagnostic logs on 

their servers. 

Although the court found FBI had 

not acted in bad faith, it issued an 

adverse inference instruction 

allowing the jury to infer that the 

government’s failure to preserve the 

text messages made this evidence 

relevant and favorable to the 

defendants. The jury acquitted the 

defendant whose defense counsel 

focused on the missing text 

messages, but convicted the other 

defendant, although a variety of 

factors may have contributed to this 

result. 

63 The FBI informed us that they are transitioning to Android phones. This 

switch may help address some of the issues with the FBI’s current capabilities 

discussed below. 

55
 
 

 

 

 

 

 

 

 

 

 

 

 

received and there is no requirement for their accuracy or completeness. 

In addition, we were told that the data contained in diagnostic logs is 

sometimes corrupted, resulting in the data being inaccessible. Further, 

ESOC officials told us they can only archive what they receive. If the FBI 

is not provided all data contained in the diagnostic logs, or if the data is 

corrupted, the FBI will not receive all the text messages sent and received 

by their employees. 

Brady/Giglio Issues – FBI 

These issues of lost data were brought to bear in United States v. 

Suarez, discussed in the text box. In that case, the FBI was asked for 

the first time to produce text message exchanges between a key 

cooperating witness and three FBI agents. The court found that the CJIS 

90-day retention policy for storing BlackBerry diagnostic logs was the 

reason for the FBI’s failure to produce the text messages. 

ESOC officials told us that they were unable to produce the text 

message exchanges in the Suarez case because the FBI does not have 

control over the entire process of transmitting text message data sent on 

government issued devices. In fact, we learned that a large part of this 

process, for all the law enforcement components, is dependent on 

external phone and data networks. Before text message data is logged on 

CJIS servers, the data travels through cellular networks and the RIM 

network for BlackBerry devices. RIM will then forward text message data 

to CJIS, but we were told that in some cases the data may not arrive if 

there are encryption key issues or glitches in the external phone and 

data networks.64 These weaknesses may continue to impact the FBI’s 

ability to fulfill their discovery obligations. 

Retention of Text Messages – USMS 

We found that the USMS uses a process similar to the FBI process 

for archiving text messages. The USMS uses BlackBerry diagnostic logs 

to archive text messages, but it cannot detect the transmission of 

sexually explicit photographs or images. 

However, there are two important differences. The USMS archives 

the text messages of its employees indefinitely. In addition, the USMS 

does not proactively monitor the transmission of sexually explicit text 

messages, even though we were told by the USMS that it has the ability 

to do so. Since USMS cannot detect sexually explicit photographs or 

images, we were unable to determine the actual number of “sexting” 

instances occurring at USMS during the study period. 

64 An encryption key is a sequence of numbers used to encrypt or decrypt data. 

56
 
 

 

 

 

 

 

 

In interviews, USMS OPR-IA officials told us they have requested 

text messages for their investigations but could not easily obtain the 

evidence they need because it could not be filtered. The Inspectors said 

they would receive an entire day’s text messages for all USMS employees 

and would have to sift through the records to determine what text 

messages related to their misconduct investigations. However, a USMS 

information technology Program Manager told us they can filter text 

messages and provided the OIG a detailed explanation on how this 

occurs. When we asked why they do not provide OPR-IA misconduct 

investigators with filtered text messages, the Program Manager stated 

that they do so on occasion, but generally misconduct investigators sort 

through the text messages themselves as some investigators are not 

aware of the filtering capability. 

Since USMS can archive and filter the text messages sent and 

received by their employees, we find it troubling that its misconduct 

investigators are not fully aware of the filtering capability to identify 

specific text messages. OPR-IA officials commented to us that employees 

tend to speak freely via text message. One OPR-IA official stated, “If we 

were able to filter text message evidence for these [sexual misconduct] 

and all misconduct investigations, it would be of great benefit.” 

Brady/Giglio Issues – USMS 

Even though USMS has the technology, USMS law enforcement 

witnesses are solely responsible for providing text messages that are 

potentially discoverable. By allowing USMS witnesses to independently 

make these determinations without further oversight or review, there is a 

risk these witnesses may not provide all relevant text messages or may 

adulterate the text messages before providing them. Further, since the 

USMS has the ability to archive the text messages of their employees, 

prosecutors should be given access upon request to the archived text 

messages especially in instances where suspected Brady or Giglio issues 

arise. 

Retention of Text Messages – ATF 

We were unable to determine the actual number of “sexting” cases 

occurring at ATF during the study period because ATF does not archive 

text messages sent and received by its employees. This means that 

potentially relevant information is not available for investigators 

conducting misconduct investigations. 

In interviews with ATF officials, we learned ATF investigators often 

rely on text message evidence in misconduct investigations, particularly 

investigations where the conduct committed is sexual in nature or 

involved an alleged inappropriate relationship. However, investigators 

57
 
 

 

 

 

 

 

 

 

 

 

 

must request the evidence from the employees or retrieve their 

government-issued devices. We also learned that ATF does not 

proactively monitor the text messages of its employees. This inevitably 

hampers its ability to detect and deter misconduct by its employees, 

including sexual misconduct, on an ongoing basis. 

ATF investigators told us that in most cases they must rely on the 

honesty of employees to provide all the relevant text messages sent and 

received. There are a number of risks to be considered when relying on 

such information, including that the employee supplying the information 

may not provide all the relevant material. In addition, the employee may 

adulterate the evidence by adding or removing language contained in the 

text message. The employee may also delete any incriminating text 

messages altogether before they can be retrieved through forensic 

imaging. We were told that once a text message is deleted in this manner 

it is nearly impossible to recapture it without obtaining a forensic image 

of the government-issued device, serving an administrative subpoena on 

the cellular network carrier, or obtaining a court order.65 

Brady/Giglio Issues – ATF 

Further, we were told that ATF law enforcement witnesses are 

solely responsible for providing text messages to prosecutors to satisfy 

discovery obligations under Brady and Giglio. By allowing ATF witnesses 

to independently make these determinations without further oversight or 

review, there is a risk that these witnesses may not provide all relevant 

text messages or may adulterate the text messages before providing 

them. Because there is no archive, prosecutors cannot independently 

obtain access to the text messages to address potential issues. 

Retention of Text Messages – DEA 

We found that, like ATF, DEA does not archive text messages sent 

and received by its employees. This similarly means that potentially 

relevant information may not be available for investigators conducting 

misconduct investigations and that DEA may be hampered in its ability 

to satisfy its discovery obligations. The ODAG also informed us that the 

DEA’s current policy regarding the preservation of electronic 

communications for discovery purposes is not entirely consistent with 

the Deputy Attorney General’s March 30, 2011, memo entitled Guidance 

on the Use, Preservation, and Disclosure of Electronic Communications in 

65 A forensic image is a forensically sound and complete copy of a hard drive or 

other digital media, generally intended for use as evidence. In addition, we were told 

that network carriers typically preserve the content contained in text messages for only 

3 to 5 days, absent a Court order or other requirement for a longer preservation period. 

58
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Federal Criminal Cases, insofar as DEA does not require that all e-mail or 

text messages with outside witnesses be preserved.66 

In interviews with DEA officials, we learned that the DEA would 

have to retrieve an employee’s government-issued device in order to 

obtain text messages in connection with a misconduct investigation. And 

we were told that, if the employee deleted any text messages prior to the 

phone’s retrieval, the DEA would be unable to recover them. DEA 

officials stated that the only other option available would be to issue an 

administrative subpoena or obtain a court order to receive the text 

message data directly from the cellular network carrier. The DEA 

officials we spoke with said they could not recall this ever occurring and, 

as discussed above, the information might well no longer be retained by 

the time such legal process was sought and obtained.67 

We also learned that the DEA does not proactively monitor the text 

messages of its employees. As with the other components that do not do 

this, we believe that the DEA inevitably is hampered in its ability to 

detect and deter misconduct by its employees, including sexual 

misconduct, on an ongoing basis. 

E-mail Preservation Issues Abroad – DEA 

In interviews, we learned that the DEA experiences similar 

limitations when attempting to retrieve deleted e-mail messages from the 

833 DEA employees stationed in foreign countries as of July 2013.68 

According to DEA officials, the DEA does not archive e-mails sent and 

received by employees stationed in foreign countries because the e-mails 

66 We were notified that the ODAG is currently working with the DEA to ensure 

consistent policies. 

67 During the OIG investigation involving allegations that DEA agents facilitated 

a sexual encounter for a supervisory Secret Service agent in Cartagena, Colombia, the 

DEA and the OIG had difficulties in retrieving text-message evidence from the DEA 

agents’ BlackBerry devices because two of the agents deleted data from them prior to 

providing the devices to the OIG. DEA officials told us that forensic imaging proved 

impossible for one of the agents who had entirely “wiped” his device. Nevertheless, the 

investigation ultimately resulted in the DEA agents being charged with obstruction of 

an official investigation, among other charges. The DEA subsequently revoked the 

agents’ eligibility for access to National Security Information (NSI). As of January 9, 

2015, DEA’s Chief Counsel Office stated that one of the DEA agents had appealed to the 

U.S. Court of Appeals for the Federal Circuit challenging his indefinite suspension 

without pay based upon the revocation of his security clearance. 

68 See DOJ OIG, Review of Policies and Training Governing Off-Duty Conduct by 

Department Employees Working in Foreign Countries, Report 15-2, January 2015. 

59
 
 

 

 

 

 

 

 

do not go through DEA servers.69 Officials in the DEA Office of Security 

Programs told us that a forensic image of the computer must be taken in 

order to retrieve deleted e-mails created on a DEA computer in use 

overseas. 

Brady/Giglio Issues – DEA 

Among the four law enforcement components, the DEA has the 

largest number of employees stationed overseas. We were told that many 

criminal prosecutions involving narcotics and prescription drug 

trafficking originate in or involve DEA overseas offices, raising additional 

concerns about whether these limits hamper the DEA’s ability to satisfy 

its discovery obligations in these cases. Because there is no archive, 

even if the information is requested from the employees themselves, there 

is a risk that an employee may not provide all relevant material, may 

adulterate what is produced, or may simply delete the text and e-mail 

messages altogether. In the final section of this report, we discuss our 

conclusions and recommendations for improvement. 

69 If an e-mail is sent to a domestically located DEA employee, it would be 

archived as a received e-mail for that employee. 

60
 
 

 

CONCLUSION AND RECOMMENDATIONS
 

Overall, we found there were relatively few reported allegations of 

sexual harassment and sexual misconduct in the Department’s law 

enforcement components. However, while we had difficulties getting 

timely and complete information from the FBI and the DEA, even based 

on the information that we received our review of the handling of these 

allegations revealed some significant systemic problems with the 

disciplinary and security processes requiring corrective action across the 

four law enforcement components. 

We determined that all the components have policies requiring 

some level of coordination between the offices responsible for ensuring 

employees meet the requirements to hold security clearances and the 

internal affairs offices who investigate misconduct allegations. At the 

FBI, all misconduct allegations are referred to the Security Division’s 

Analysis and Investigation Unit to determine whether the allegation 

raises security concerns. 

However, we found instances where ATF, DEA, and USMS 

employees engaged in a pattern of high-risk sexual behavior, but security 

personnel were not informed about these incidents until well after they 

occurred, or were never informed. By failing to refer these allegations to 

security personnel, the high-risk sexual behavior of these employees has 

the potential to expose ATF, DEA, and USMS employees to coercion, 

extortion, and blackmail and presents security risks for these 

components. 

We were particularly troubled by multiple allegations involving 

several DEA special agents participating in “sex parties” with prostitutes 

while working in an overseas office. The misconduct occurred for several 

years while these special agents held Top Secret clearances. Many of 

these agents were alleged to have engaged in this high-risk sexual 

behavior while at their government-leased quarters, raising the 

possibility that DEA equipment and information also may have been 

compromised as a result of the agents’ conduct. 

Second, although ATF and the USMS have clear policies requiring 

supervisors to report to their headquarters internal affairs offices 

misconduct allegations, including alleged sexual misconduct and sexual 

harassment, we found instances in which supervisors failed to report 

these allegations, even when the alleged misconduct had occurred in the 

past. 

61
 
 

 

At the DEA and the FBI, we found that policies on reporting 

allegations of misconduct provides supervisors with discretion when 

determining what to report and what to treat as a management or 

performance-related issue. We found an instance where supervisors at 

these components exercised that discretion even when their respective 

offense tables characterized the conduct as something that should be 

reported to headquarters. 

Third, we determined that ATF, the DEA, and the FBI have criteria 

for determining whether to open an investigation at headquarters or refer 

it back to management in the field for handling. Although it appears that 

ATF consistently followed its criteria, at the FBI we found instances 

where it failed to open investigations at headquarters into allegations of 

serious sexual misconduct and sexual harassment when called for by its 

criteria. At the DEA, we found instances where the DEA OPR failed to 

fully investigate allegations of serious sexual misconduct and sexual 

harassment. The USMS has no criteria for making these determinations, 

but we found that it appropriately handled allegations in all the cases we 

examined. 

Fourth, we determined that the DEA, FBI, and USMS offense 

tables contain specific offense categories to address allegations of sexual 

misconduct and sexual harassment and to provide guidance on the 

appropriate range of penalties that could be imposed. However, we 

found that these components often applied general offense categories to 

misconduct that fell within the more specific offense categories contained 

in their offense tables. In addition, we found that the ATF offense table 

does not contain specific offense categories to address sexual misconduct 

and sexual harassment. 

While the FBI offense table contains specific language to address 

the solicitation of prostitutes overseas even where the conduct is legal, 

we found that ATF, the DEA, and the USMS offense tables do not contain 

specific language to address this form of misconduct. As a result of 

these issues, employees of the law enforcement components may not be 

fully notified as to the types of conduct that are prohibited, may not have 

adequate notice of the range of penalties that could be imposed, and 

there is also a risk that inconsistent penalties could be imposed for 

similar misconduct. Further, it may be difficult for the components to 

easily determine the frequency of this type of misconduct or to identify 

any trends in the types of allegations reported. 

Fifth, we determined that all the law enforcement components do 

not have adequate technology to archive text messages sent and received 

by their employees and are unable to fully monitor the transmission of 

sexually explicit text messages and images. Therefore, we could not 

62
 
 

 

 

 

 

 

determine the actual number of instances involving the transmission of 

sexually explicit text messages, images, and e-mails, also known as 

“sexting.” These same limitations limit the ability of the components to 

make this important information available to misconduct investigators 

and may risk hampering the ability of the components to satisfy their 

discovery obligations. 

To correct the deficiencies discussed above, we make eight 

recommendations to improve the law enforcement components’ 

disciplinary and security processes. We recommend that the Department 

and the law enforcement components develop consistent policies and 

practices to ensure that sexual misconduct and sexual harassment 

allegations are handled in an appropriate fashion and that information 

regarding such allegations is referred to security personnel for 

consideration in a timely manner. Specifically, we recommend: 

1. All four law enforcement components should ensure that 

supervisors and managers report all allegations of sexual 

misconduct and sexual harassment to headquarters, and they 

should consider ensuring compliance with this requirement by 

including it in their performance standards so as to subject 

supervisors and managers to possible discipline for failing to report 

allegations. 

2. ATF, DEA, and USMS should ensure that all non-frivolous sexual 

harassment and sexual misconduct allegations are referred to their 

respective security personnel to determine if the misconduct raises 

concerns about the employee’s continued eligibility to hold a 

security clearance, and to determine whether the misconduct 

presents security risks for the component. 

3. The components should have and follow clear and consistent 

criteria for determining whether an allegation should be 

investigated at headquarters or should be referred back to the 

originating office to be handled as a management matter. 

4. All four law enforcement components should use the offense 

categories specifically designed to address sexual misconduct and 

sexual harassment, and revise their tables if they are inadequate 

or otherwise deter the use of such categories. 

5. The Office of the Deputy Attorney General (ODAG) should ensure 

that the Department’s zero tolerance policy on sexual harassment 

is enforced in the law enforcement components and that the 

components’ tables of offenses and penalties are complimentary 

and consistent with respect to sexual harassment. 

63
 
 

6. The Office of the Deputy Attorney General (ODAG) should develop 

policy explicitly prohibiting the solicitation of prostitutes in a 

foreign jurisdiction even if the conduct is legal or tolerated, and 

ensure that all component offense tables include language 

prohibiting this form of misconduct. 

7. All four law enforcement components, in coordination with ODAG, 

should acquire and implement technology and establish 

procedures to effectively preserve text messages and images for a 

reasonable period of time, and components should make this 

information available to misconduct investigators and, as 

appropriate, for discovery purposes. 

8. All four law enforcement components, in coordination with ODAG, 

should take concrete steps to acquire and implement technology to 

be able to, as appropriate in the circumstances, proactively 

monitor text message and image data for potential misconduct. 

64
 
 

 

 

 

 

 

 

 

 

 

 

APPENDIX 1: METHODOLOGY
 

For this review, the OIG interviewed 72 officials at ATF, the DEA, 

the FBI, the USMS, the Office of the Deputy Attorney General, and the 

OIG’s Investigations Division. We conducted a series of analyses to 

evaluate the nature and frequency of sexual harassment and sexual 

misconduct affecting the workplace and the security of operations. We 

evaluated the reporting, investigation, and adjudication phases. We 

considered whether supervisors failed to report allegations of sexual 

harassment and sexual misconduct. We also considered whether 

misconduct investigators opened investigations regarding the appropriate 

subjects and whether they focused on all the issues contained in the 

allegation. Further, we evaluated whether the law enforcement 

components offense tables are adequate to address sexual misconduct 

and sexual harassment allegations. 

Data Collection 

OIG requested case files and data points from each of the 

Department’s four law enforcement components regarding all misconduct 

allegations arising during the period FY 2009 through and including 

FY 2012 (October 1, 2008, to September 30, 2012).70 We included in this 

report misconduct allegations that were still open as of April 23, 2013, 

and updated the information during the course of our review.71 

ATF 

Prior to our formal initiation of this review, ATF provided us with 

data points for all of their misconduct cases and allowed the OIG to 

determine which cases fell within the scope of our review. We identified 

94 allegations of a sexual nature and requested these case files. Upon 

reviewing the case files, we determined that 47 of the allegations were 

within the scope of our review. ATF provided unfettered access to this 

information and worked with the OIG to correct errors or fill in any 

missing data points. 

70 Component case files may contain multiple allegations against multiple 

subjects. For purposes of this review, we generally count each case file as a separate 

case and each subject of an investigation as a separate allegation. However, during 

adjudication, an adjudicative case file contains only information relating to an 

individual subject. Therefore, when discussing the adjudicative process, we refer to 

each subject as a case. 

71 Any open allegations of sexual misconduct or sexual harassment discussed 

in this report were monitored or investigated by the OIG. 

65
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USMS 

The USMS also produced to us the information we requested prior 

to the formal initiation of this review. We reviewed 2,248 USMS 

misconduct allegations arising during the study period that were 

contained in a spreadsheet provided by the USMS. We determined that 

98 potential allegations related to our review. After a more thorough 

review of the case files, we determined that 81 misconduct allegations 

were within the scope of our review. The USMS provided unfettered 

access to the case information and worked with the OIG to correct errors 

or fill in any missing data points. 

FBI 

Unlike ATF and the USMS, the FBI was initially unwilling to 

provide un-redacted information that we requested in April 2013 related 

to sexual misconduct and sexual harassment allegations arising during 

the study period. We elevated these issues for discussion and resolution 

with the respective component senior management. At the conclusion of 

the initial discussions, the FBI agreed to run a list of search terms the 

OIG developed to determine the allegations that related to sexual 

misconduct and sexual harassment. 

In consultation with the OIG, the FBI developed a shorter list of 

terms that focused on seven offense categories relating to sexual 

misconduct and sexual harassment. Even after the OIG formally 

initiated this review in July 2013, the FBI provided substantially 

redacted information regarding 242 sexual misconduct and sexual 

harassment cases, as well as the data points related those cases. The 

FBI claimed that it could not provide the information to the OIG due to 

limitations in the Privacy Act and because the information contained 

Personally Identifiable Information (PII).72 The OIG objected, advising the 

FBI that we were entitled to access the materials pursuant to Section 6 of 

the Inspector General Act. As we further informed the FBI, the 

prohibitions in the Privacy Act do not apply to the dissemination of 

materials by the Department to the OIG and the OIG handles all 

information that it receives consistent with the requirements in the 

Privacy Act. Additionally, the OIG regularly reviews PII in connection 

with its oversight responsibilities and, in this instance, our Investigations 

72 See generally, Privacy Act of 1974, Pub. L. 93–579, 88 Stat. 1896, 5 U.S.C. § 

552a, which governs the collection, maintenance, use, and dissemination of personally 

identifiable information about individuals that is maintained in systems of records by 

federal agencies, and the Inspector General Act of 1978, § 6(a)(1) (authorizing OIGs “to 

have access to all records, reports, ... documents, papers, ... or other material available 

to the [agency] which relate to programs and operations with respect to which that 

Inspector General has responsibilities under this Act”). 

66
 
 

 

 

 

 

 

 

 

 

 

Division should have previously received these reports from the FBI at 

the time of the alleged event, pursuant to Department regulations 

requiring that Department components report non-frivolous allegations 

of misconduct to the OIG. We did not receive the un-redacted 

information we requested from the FBI until August 2013, some 

4 months after our initial request. 

We had the OIG Investigations Division search its case 

management system using our full list of search terms to try to help 

ensure that we had received all the cases within the scope of our review. 

Through this search, we identified a material number of additional 

allegations of sexual misconduct or sexual harassment that were not 

originally provided to us by the FBI. The discrepancy was greater than 

we could explain in light of the longer list of search terms used internally 

and the different databases searched. 

Once we identified the discrepancies, we requested the information 

from the FBI. The FBI provided it to the OIG without substantial 

redactions and thereafter worked with the OIG to correct errors or fill in 

any missing data points. A further review of the information the FBI 

provided for these additional cases found that a material number of the 

cases contained the agreed upon search criteria. We were unable to 

determine why a material number of in scope cases were excluded from 

the FBI’s production. The failure to provide case file information in a 

timely fashion unnecessarily delayed our work. 

DEA 

In April 2013, prior to our formal initiation of this review, we 

requested information related to sexual misconduct and sexual 

harassment allegations arising during the study period. Similarly to the 

FBI, the DEA initially was unwilling to provide the OIG with any of the 

information that we requested. Even after the OIG formally initiated this 

review in July 2013, the DEA provided only substantially redacted 

information regarding 67 sexual misconduct and sexual harassment 

cases, as well as the data points related to those cases. As with the FBI, 

the DEA cited the Privacy Act and concerns for the individuals involved 

as the basis for not providing the information. We provided a lengthy list 

of sexual misconduct-related search terms to the DEA and requested 

that it use the terms to search its database for sexual misconduct cases. 

We did not receive un-redacted information in response to this request 

until September 2013, some 5 months after our initial request and only 

after we informed the DEA that the FBI had produced similar material to 

us in August 2013. Further, after a working draft of our report was 

issued to the components, the DEA informed us that it did not run our 

full list of search terms but instead ran only three search terms in 

conjunction with a search by offense code. 

67
 
 

 

 

As with the FBI, we had the OIG Investigations Division search its 

case management system to ensure the information finally produced to 

us by the DEA was complete and responsive to our request. We 

identified a material number of additional allegations of sexual 

misconduct or sexual harassment that were not originally provided to us 

by the DEA. We requested this information from the DEA and it was 

provided to us, although the DEA continued to redact some of the 

information. 

Based upon our analysis of the DEA’s search process, we 

determined that a significant number of cases were within the scope of 

our review and met even the DEA-selected search criteria but were not 

provided to the OIG during their initial un-redacted production. 

Moreover, even after DEA agreed to provide the additional case files, it 

continued to redact some of the information. The failure to provide case 

file information in a timely fashion unnecessarily delayed our work. 

Cleaning and Normalizing the Misconduct Data 

Charges applied to misconduct allegations are general and may not 

adequately describe the conduct to allow for comparisons, for example, 

Conduct Unbecoming a Federal Employee. After identifying the 

allegations relating to sexual misconduct and sexual harassment, we 

standardized the offense categories and created a data field containing 

standardized offense categories or types. This allowed us to better 

characterize the misconduct and to make comparisons across the law 

enforcement components and among demographic categories, such as 

position, race, and grade level. 

In addition, we created data fields to better categorize the 

allegations, such as identifying the allegations in which an allegation was 

not substantiated, the law enforcement component chose not to 

discipline an employee, or the outcome was not clear based on 

documentation in the case file. We then completed descriptive statistical 

analysis of the misconduct case data. 

Analysis of Referrals 

To determine whether matters were reported to the OIG, we 

reviewed each component’s initial complaint for a notation that the 

allegation was referred. We identified only two allegations where this 

notation was not present but confirmed the allegations were in fact 

referred with the OIG Investigations Division. 

Interviews 

We interviewed 72 officials at ATF, the DEA, the FBI, the USMS, 

the Office of the Deputy Attorney General, and the OIG’s Investigations 

68
 
Division who were involved in the reporting, investigation, and 

adjudication phases of the disciplinary process. We also interviewed 

misconduct investigators and proposing/deciding officials regarding 

specific sexual harassment and sexual misconduct allegations. In 

addition, we interviewed information technology professionals at the 

respective components who are responsible for archiving employee emails and text messages. Further, we interviewed representatives from 

each component’s Office of General Counsel regarding discovery issues. 

When necessary, we conducted additional interviews to resolve any 

follow-up questions and confirm our findings. 

We also were concerned by an apparent decision by DEA to 

withhold information regarding a particular open case. The OIG was not 

given access to case file information until several months after our initial 

request. Once we became aware of the open-case information, DEA 

employees we interviewed about it stated that they were given the 

impression that they were not to talk to the OIG about this case while it 

remained open. We were able to re-interview the officials; but the OIG 

was entitled to receive all such information from the outset and the 

failure to provide it unnecessarily delayed our work. 

Case File Review 

We reviewed case files related to sexual misconduct. The case files 

included documentation such as the initial complaint form, the interview 

transcripts, the summary of investigative findings, the proposal letter, 

and the decision letter. We first evaluated whether the allegations fell 

within the scope of this review. We also evaluated whether misconduct 

investigators opened investigations regarding the appropriate subjects 

and whether they focused on all the issues contained in the allegation. 

Further, we evaluated whether an allegation was an area of concern 

pursuant to the Adjudicative Guidelines, and whether the allegation was 

reported to the appropriate security personnel. 

When reviewing the case files, we identified allegations that were 

not handled appropriately in at least one phase of the disciplinary 

process. We created a “Problem Case” data field and marked cases 

accordingly. We then conducted analysis on this metric. During our 

case file review, we identified cases where supervisors failed to report 

alleged sexual harassment and sexual misconduct and where internal 

affairs offices failed to open misconduct investigations when doing so was 

warranted. We also identified cases in which an investigation was 

opened, but the investigation lacked obvious due diligence such as failing 

to interview alleged witnesses or failing to investigate additional subjects 

that came to light during the course of the investigation. 

69
 
 

 

 

 

 

 

 

 

Data Analysis 

We identified allegations that it appeared were not handled 

appropriately in at least one phase of the disciplinary process, including 

reporting, investigation, and security issues. We created a data field to 

mark these cases and analyzed the frequency of these issues. We 

conducted an overall demographic analysis of the subjects, to include 

race, gender, and grade level, but did not identify any trends or patterns. 

In addition, we conducted a timeliness analysis of each 

component’s disciplinary process. We divided the allegations into two 

categories, formal discipline and informal discipline. For the allegations 

that resulted in informal discipline, we also included allegations that 

were administratively closed with no action taken. This allowed us to 

compare timeliness across components for allegations that went through 

the entire disciplinary process (those ending in formal discipline) as well 

as the cases that went through only a part of the disciplinary process 

(those ending in informal discipline/administrative closure).73 

Policy Review 

We reviewed each component’s policies, procedures, and guidance 

related to sexual harassment and sexual misconduct. These reviews 

enabled us to identify deficiencies in these policies and their 

implementation. These policy reviews also informed the interviews we 

conducted, the case file reviews, and our data analysis. 

73 We conducted an analysis of the length of time it took the law enforcement 

components to investigate and adjudicate sexual misconduct and sexual harassment 

allegations. Because many of the cases (e.g., child pornography, sexual abuse, and the 

solicitation of prostitutes domestically) went through the criminal process or were 

investigated by the OIG, the data was skewed significantly. Therefore, our analysis did 

not show a true reflection of the length of time it took the law enforcement components 

to handle these types of allegations. 

70
 
 

 

 

 

 

 

APPENDIX 2: LAW ENFORCEMENT COMPONENT
 

DISCIPLINARY PROCESSES
 

The description of each component’s disciplinary process is based 

on the OIG’s review of the written policies and procedures related to the 

respective component disciplinary process and interviews with component 

officials and staff members responsible for the investigation and 

adjudication of discipline and adverse actions. 

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

The mission of ATF is to conduct criminal investigations, regulate 

the firearms and explosives industries, and assist other law enforcement 

agencies. In 2013, ATF had 4,719 employees, of which 2,402 served as 

Special Agents, 791 served as Industry Operations Investigators, and 

1,526 served in other positions. In addition, currently, 4,657 ATF 

employees hold a security clearance level of Secret or higher. 

ATF Disciplinary Process 

ATF supervisors are required to report all allegations of misconduct 

to the Internal Affairs Division (IAD). 

Four entities are involved in the ATF disciplinary process: (1) the 

Internal Affairs Division (IAD); (2) the Office of Professional 

Responsibility, Security Operations (OPRSO); (3) the Professional Review 

Board (PRB); and (4) the Bureau Deciding Official (BDO). 

Reporting Allegations of Sexual Misconduct and Harassment74 

ATF Order 8610.1B requires allegations to be reported to the IAD. 

A duty agent documents the allegation and any relevant evidence in an 

incident report. To determine whether an allegation should be 

investigated on a preliminary basis, should be designated as a 

headquarters internal investigation, or should be referred back to the 

reporting field division “for action” or “information only,” the incident 

report is reviewed by the Assistant Special Agent in Charge (ASAC) and 

the Special Agent in Charge (SAC) of the Internal Affairs Division. The 

Assistant Director (AD), Office of Professional Responsibility and Security 

Operations (OPRSO) make the final decision on the type of investigation 

initiated. 

74 See generally ATF Order 8610.1B, Integrity and Other Investigations, March 9, 

2012. 

71
 
 

 

 

 

 

 

In addition, the IAD reports to the OPRSO, Security and 

Emergency Programs Division (SEPD), Personnel Security Branch (PSB), 

conditions that could raise a security concern. Depending upon the 

seriousness of the allegation, the PSB may suspend an employee’s 

eligibility for access to classified information pending the conclusion of 

the IAD investigation. 

Investigating Allegations of Sexual Misconduct and Harassment75 

Most allegations concerning employee integrity, ethical, or criminal 

violations are designated as internal investigations from their inception. 

Where additional facts must be gathered to determine the nature and 

seriousness of the misconduct, a preliminary investigation is conducted 

at headquarters, but it may be converted into an internal investigation if 

the nature of the allegation so warrants. All preliminary investigations 

must be completed in 45 days. 

If the allegation involves a minor infraction of ATF policy or is 

performance related, it may be referred back to the field division as a 

management referral. There are two types of management referrals, “For 

Action” or “Information Only.” Management referrals “For Action” require 

the field divisions to conduct an inquiry and report their findings to the 

IAD within 60 days of their receipt. 

When the field division management concludes the inquiry, they 

consult the Chief Counsel’s Administrative and Ethics Division to 

determine if discipline is warranted. Where an incident report is drafted, 

but the allegation lacks specificity or does not involve an ATF employee, 

the IAD may refer the matter back to the field division as a management 

referral for “Information Only.” These referrals do not require further 

inquiry or consultation with the IAD or the ATF Chief Counsel. 

During an internal investigation, ATF investigators collect evidence 

and signed, sworn statements and conduct interviews. At the conclusion 

of an internal investigation, the investigator prepares the final report of 

investigation containing a statement of the facts. No conclusions or 

statements of substantiation are contained in the final report. The IAD 

has approximately 120 days from receipt of the allegation to complete an 

internal investigation and refer the final report to the Professional Review 

Board. The AD OPRSO reviews and approves all reports of investigation 

before they are sent to the Chair of the ATF Professional Review Board. 

75 ATF Order 8610.1B, Integrity and Other Investigations, March 9, 2012. 

72
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Adjudicating Reports of Investigation76 

The Professional Review Board consists of five members who meet 

monthly to review reports of investigation received from Internal Affairs 

Division or the DOJ OIG. ATF defines non-adverse actions as letters of 

reprimand and suspensions of 14 days or less. An adverse action 

constitutes a suspension of 15 days or more, removal, demotion, 

reduction in pay, or a furlough for 30 days or less. 

If the Board determines that there is sufficient evidence of 

misconduct warranting disciplinary action, the Board consults case 

precedent and the ATF Table of Offenses and Penalties to determine the 

appropriate penalty. In some cases, disciplinary action may not be 

warranted and a letter of clearance is issued to the subject employee. 

Where disciplinary action is warranted, a Human Resources Specialist 

drafts a proposal letter containing the recommended discipline. The 

Professional Review Board’s goal is to issue proposal letters within 30 

days of the Board’s receipt of the report of investigation. 

The Bureau Deciding Official renders discipline decisions based on 

the report of investigation, the Board’s proposal, and the employee’s 

response.77 The report of investigation supporting the proposed 

disciplinary action is usually attached to the proposal letter, and the 

employee is permitted to hire a representative in preparation. Once the 

Deciding Official receives the employee’s response, the BDO considers 

the relevant Douglas Factors, and has a goal to render a decision within 

30 days.78 The Deciding Official can reduce the penalty proposed by the 

Board but may not increase it. 

After the final decision letter is issued, the employee’s management 

must ensure the proscribed penalty is imposed. For a suspension of 

14 days or less, an employee may seek review of the BDO’s decision by 

76 ATF Order 2140.1, Adverse Action and Discipline, November 29, 2011, and 

ATF Order 2141.2, Professional Review Board, September 5, 2006. 

77 For a suspension of 14 days or less, 5 C.F.R. Part 752 § 203 requires the 

components to provide the employee with a reasonable amount of time, but not less 

than 24 hours, to make an oral or written reply to the proposal letter. Where the 

penalty is a suspension of 15 days or more, removal, demotion, furlough, or a reduction 

in pay, the employee has at least 7 days to make an oral or written response. See 

5 U.S.C. Chapter 75 and 56 C.F.R. Part 752 § 203 and 404. 

78 Under civil service laws, there are 12 factors, known as the Douglas Factors, 

which should be considered in determining the appropriateness of a disciplinary 

penalty. See Douglas v. Veterans Administration, 5 M.S.P.B. 313 (1981). See Appendix 

5 for a list of the 12 Douglas Factors. 

73
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

filing a grievance with the official designated in the decision. An 

employee may appeal a suspension of 15 days, including a removal 

before the Merit Systems Protection Board (MSPB).79 

ATF Guide for Offenses and Penalties80 

The ATF Guide for Offenses and Penalties does not contain specific 

offense categories designed to address allegations of sexual misconduct, 

but it describes conduct equivalent to sexual harassment or 

inappropriate behavior of a sexual nature within the offense categories 

Inappropriate Behavior and Poor Judgment and/or Conduct Unbecoming a 

Federal Employee/Special Agent. For sexual harassment, the ATF Guide 

contains an offense category directed at supervisors for failing to report 

allegations of sexual harassment, but it does not define sexual 

harassment. The explanations in the ATF Guide also contain a number 

of general offense categories under which sexual misconduct could be 

charged. 

The Drug Enforcement Administration 

The mission of the DEA is to enforce the controlled substances 

laws and regulations of the United States. In 2013, the DEA had 11,053 

employees, of which 5,250 served as Special Agents and 5,803 served in 

other support capacities. In addition, currently, 9,401 DEA employees 

hold clearances at the Secret level or higher. 

DEA Disciplinary Process 

There are three entities involved in the DEA disciplinary process: 

(1) the Office of Professional Responsibility (OPR); (2) the Board of 

Professional Conduct (HRB); and (3) the DEA Deciding Officials.81 

79 The Merit Systems Protection Board (MSPB) is an independent, quasi-judicial 

agency in the Executive Branch that hears appeals of various agency decisions, most of 

which are appeals of agencies’ adverse actions in discipline cases. 

80 ATF Guide for Offenses and Penalties, March 9, 2010. 

81 The DEA OPR investigates Task Force Officers (TFO) in the same manner as 

permanent employees. However, the adjudication of TFOs by the DEA is handled by 

their division management. ATF, the FBI, and the USMS do not investigate misconduct 

allegations involving TFOs unless the incident involves one of their permanent 

employees. 

74
 
 

 

 

 

 

 

 

 

Reporting Allegations of Sexual Misconduct and Sexual Harassment82 

Once an allegation is reported to the OPR, the allegation must be 

given a designation or code before it is assigned for investigation. There 

are three possible designations made by the Deputy Chief Inspector (DCI) 

or the Associate Deputy Chief Inspector (ADCI) based on how specific the 

allegations are at the time of reporting. The designation also indicates 

whether the Inspector assigned is permitted to obtain signed, sworn 

statements from the subject and other witnesses. The three designations 

are Administrative (AD), Professional Responsibility (PR), and Information 

Gathering Field (IGF). Each designation is discussed in more detail in 

the next section. 

Investigating Allegations of Sexual Misconduct and Sexual Harassment 

An allegation is designated as an Administrative (AD) where there 

is not sufficient evidence at the time of reporting to determine if a 

possible integrity violation occurred. AD inquiries must be completed 

within 30 days of the receipt of the allegation. The Inspector assigned to 

an AD case is not permitted to elicit signed, sworn statements. If an AD 

preliminary inquiry develops sufficient evidence to determine that a 

possible integrity violation occurred, an AD case may be converted to 

either an IGF or a PR case. 

An allegation is designated as a Professional Responsibility (PR 

where there is a clear indication of an integrity violation. PR cases 

involve criminal activity and violations of the DEA Standards of Conduct. 

Employees are typically charged under the general offense category 

Failure to Follow Instructions or Poor Judgment when they commit an 

integrity violation. PR investigations must be completed in 180 days or 

less. Only PR cases are forwarded to HRB and Deciding Officials for 

disciplinary action. 

An allegation is designated as Information Gathering Field (IGF) 

where the initial allegation is vague and requires the Inspector assigned 

to gather additional information. IGF cases typically include loss of 

property or fiscal offenses and are charged under the general offense 

category Conduct Unbecoming a DEA Agent or Non-Agent. The Inspector 

assigned to PR and IGF cases may elicit signed, sworn statements from 

subjects and witnesses. If an IGF case develops to the point that a 

particular DEA employee violated the Standards of Conduct, it is 

converted to a PR case so that it can be forwarded to the HRB and the 

Deciding Officials. 

82 DEA Office of Professional Responsibility Handbook, undated. 

75
 
 

 

 

 

Further, an IGF case can be converted to a PR case once additional 

information is obtained. IGF investigations must be completed in 

90 days or less. However, if an IGF-designated allegation is converted to 

a PR investigation, the PR investigation time standard of 180 days is 

applied from the date of conversion. Once a designation is made and the 

case is assigned, a DEA OPR Inspector initiates a preliminary inquiry to 

determine whether the allegation should be fully investigated, referred 

back to field division management for handling (management referral), or 

administratively closed. 

During the preliminary inquiry and throughout the investigation 

process, the DEA OPR Inspector also evaluates whether the allegation 

raises security concerns for the DEA or whether the allegation 

compromises the employee’s continued ability to hold a security 

clearance. When security issues are present, the assigned Inspector 

consults the ADCI or the DCI, who have the sole discretion to determine 

whether the allegation warrants referral to the Office of Security 

Programs (OSP). If a referral is made, the DEA OPR provides 

investigative support. 

If there is no indication of misconduct, or that a DEA employee or 

Task Force Officer (TFO) was involved, the matter is administratively 

closed. If an allegation is referred back to the field, field management 

may also be required to conduct further inquiries and report what they 

learn to the DEA OPR. If a full investigation is warranted, the Inspector 

gathers additional evidence and interviews witnesses. When the 

investigation is completed, the assigned Inspector prepares a final report 

containing a statement of facts learned. No conclusions or statements of 

substantiation are contained in the final report. Before the final report is 

sent to the Chair of the Board of Professional Conduct, it must be 

approved by the ADCI or DCI. 

Adjudicating Reports of Investigation83 

The Chair of the Board of Professional Conduct assigns cases to 

one of the three Board members. Unlike the ATF Professional Review 

Board, the DEA HRB is not a Board with voting members. Instead, the 

Board is staffed with three proposing officials who review the report of 

investigation, case precedent, and the DEA Guide of Disciplinary 

Offenses and Penalties to determine the appropriate penalty. 

Like ATF, Human Resources Specialists draft the proposal letter 

before it receives a final review by the Chair. For letter of reprimands 

and suspensions of 14 days or less, there is no Chief Counsel review 

83 DEA Human Resources Manual on Discipline, March 17, 2005. 

76
 
 

 

 

 

 

 

before the proposal letter is sent to the DEA Deciding Officials. Where 

the proposed penalty is a suspension of 15 days or more up to removal, 

the DEA Chief Counsel’s Office must review the proposal letter for legal 

sufficiency. 

Once this proposal letter is issued, the employee has an 

opportunity to provide an oral or written response, or both, to the 

Deciding Officials assigned to their case.84 DEA employees may also seek 

representation. Unlike the other components, DEA employees are not 

provided a copy of the final report of investigation. Instead, they may 

review the report in DEA space to prepare their response and take notes. 

When rendering a decision, the DEA Deciding Officials also consider the 

report of investigation, the proposal letter, case precedent, the relevant 

Douglas Factors, and any oral or written response. 

After the final decision letter is issued, the employee’s management 

must ensure the prescribed penalty is imposed. For suspension of 

14 days or less, an employee may grieve the decision with the official 

designated in the decision letter. For suspensions of 15 days or more up 

to removal, an employee may appeal the decision before the MSPB. 

DEA Guide for Disciplinary Offenses and Penalties85 

The DEA Guide of Disciplinary Offenses and Penalties contains 

seven offense categories that could presumably address allegations of 

sexual misconduct and sexual harassment, including Unprofessional or 

Inappropriate Conduct of a Sexual Nature, Sexual Harassment, and 

Retaliation against an Employee Resulting from or in Connection with an 

Allegation of Sexual Harassment. However, the only penalty suggested 

for Sexual Harassment is removal. Other offense categories that do not 

specifically address sexual misconduct but may, under certain 

circumstances, be considered sexual misconduct are Improper 

Association with a Convicted Felon, Confidential Source and/or Persons 

Connected with Criminal Activity; Disrespectful or Unprofessional Conduct; 

and Criminal, Dishonest, Infamous or Notoriously Disgraceful Misconduct. 

These categories provide a range of penalties that can be applied. 

The Federal Bureau of Investigation 

The mission of the FBI is to protect and defend the United States 

against terrorist and foreign intelligence threats; to uphold and enforce 

the criminal laws of the United States; and to provide leadership and 

criminal justice services to federal, state, municipal, and international 

84 5 U.S.C. Chapter 75 and 56 C.F.R. Part 752 § 203 and 404. 

85 DEA Guide for Disciplinary Offenses and Penalties, undated. 

77
 
 

 

 

 

 

 

 

 

 

agencies and partners. In 2013, the FBI had 35,344 employees, of which 

13,598 served as Special Agents and 21,746 served as Intelligence 

Analysts, Language Specialists, Scientists, Information Technology 

Specialists, and in other support capacities. Further, all FBI staff hold 

clearances at the Top Secret level or higher. 

FBI Disciplinary Process86 

There are four entities involved in the FBI disciplinary process: 

(1) the Internal Investigations Section (IIS), Inspection Division (INSD); 

(2) the Office of Professional Responsibility (OPR) Proposing Officials and 

Deciding Officials; (3) the Human Resources Division (HRD); and (4) the 

Disciplinary Review Board (DRB). 

Reporting Allegations of Sexual Misconduct and Sexual Harassment87 

The Internal Investigations Section (IIS) is the unit of the 

Inspection Division responsible for overseeing the initial processing and 

investigation of misconduct allegations. All allegations of employee 

misconduct must be in writing before the Initial Processing Unit (IPU) 

enters the allegation into the case management system. If the allegation 

is not specific, or cannot be attributed to a specific FBI employee, the 

assigned Conduct Review Specialist may request additional information 

from the field. In addition, the FBI IIS refers all allegations of 

misconduct to the Security Division (SecD), Analysis and Investigations 

Unit (AIU) for a determination as to whether the allegation raises security 

risks for the FBI or whether the allegation raises concerns about the 

employee’s ability to hold a security clearance. If these risks are present, 

the AIU opens a parallel investigation. 

Investigating Allegations of Sexual Misconduct and Sexual Harassment 

The Lead Conduct Review Specialist, IPU Unit Chief, and the 

Section Chief review the allegation to determine whether to open an 

investigation at headquarters, delegate the investigation to the field with 

IIS oversight, or administratively close the matter. Allegations are 

generally closed where there is insufficient evidence to warrant an 

investigation. When making these determinations, the reviewers rely on 

86 The procedural protection afforded to most employees in the federal service 

does not apply to most FBI employees. For example, FBI employees cannot appeal 

disciplinary decisions to the Merit Systems Protection Board like most other federal 

employees (5 U.S.C. § 7511(b)(8)). In addition, FBI policy does not require the 

proposing officials and deciding officials to be walled off from one another when 

adjudicating discipline. 

87 FBI Internal Investigations Section IIS, Supervisors’ Guide, Version 6, March 

2013. 

78
 
 

 

 

 

 

 

 

 

their experience and the FBI Offense Codes and Penalty Guidelines. It is 

within the sole discretion of the IIS Section Chief to open or close an 

allegation. 

If an investigation is opened at headquarters, or in the field with 

IIS oversight, a Supervisory Special Agent (SSA) or Assistant Inspector in 

Place (AIIP) collects all evidence and signed, sworn statements and 

conducts interviews. At the conclusion of the investigation, the 

investigation case file is forwarded to the FBI Office of Professional 

Responsibility for adjudication. 

Adjudicating Reports of Investigation88 

The Office of Professional Responsibility (OPR) adjudicates all 

allegations of misconduct involving FBI employees. The OPR reviews all 

relevant facts and evidence, case precedent, and the Douglas Factors 

when preparing a report. If the allegation is substantiated, the FBI OPR 

determines the proposed penalty and final decision. 

For oral reprimands, letters of censure, and suspensions of 

14 days or less (non-adverse actions), there is no formal proposal stage 

in the process and one of the two Adjudication Unit Chiefs determines 

the discipline imposed. For suspensions of 15 days or more, including 

removals (adverse actions), the Unit Chiefs propose discipline and the 

Assistant Director makes the final decision. However, the Assistant 

Director must approve all proposal letters. When rendering the final 

decision, the Assistant Director considers the employee’s oral and/or 

written reply to the allegations. The Assistant Director may not impose a 

penalty greater than the proposal. Generally, the FBI attempts to 

complete the investigation and adjudication of a misconduct case within 

180 days. 

Although most of the procedural protections outlined in the Code 

of Federal Regulations do not apply to FBI employees, a nonprobationary FBI employee may appeal non-adverse actions to the 

Human Resources Division (HRD). Non-disciplinary counseling, oral 

reprimands, and letters of censure are not appealable. The Disciplinary 

Review Board, which is chaired by the Assistant Director and is made up 

of five FBI employees, both agents and non-agents, decide appeals of 

adverse actions (suspensions of 15 days or more up to removal). 

88 The Office of Professional Responsibility (OPR), which is part of the Director’s 

Office, is headed by an Assistant Director who reports directly to the Deputy Director. 

OPR has two adjudication units, each of which is headed by a Unit Chief. See 

generally, FBI Policy Implementation Guide for Adjudication of Delegated Disciplinary 

Matters, Office of Professional Responsibility, March 2013. 

79
 
 

 

 

 

 

 

FBI Offense Codes and Penalty Guidelines89 

The FBI Offense Table and Penalty Guidelines contains six offense 

categories that specifically address sexual misconduct allegations. The 

FBI table provides guidance on the range of discipline for sexual 

misconduct – consensual as described above and provides guidance on 

the types of penalties resulting from engaging in improper relationships. 

These offenses include improper relationships with a criminal element; 

with a subordinate/superior; and with an asset, confidential witness, or 

informant. 

The table further provides guidance on penalties where an 

employee engages in indecent/lascivious acts and sexual harassment 

with a broad range of penalties. 

The United States Marshals Service 

The mission of the USMS is to enforce federal laws and provide 

support to virtually all elements of the federal justice system. In 2013, 

USMS had 5,602 employees, of which 94 served as U.S. Marshals, 3,925 

as Deputy U.S. Marshals and Criminal Investigators, and 1,583 as 

Detention Enforcement Officers and administrative employees. In 

addition, 3,063 USMS employees currently hold clearance levels at the 

Secret level or higher. 

USMS Disciplinary Process 

There are three entities involved in the USMS disciplinary process: 

(1) the Office of Professional Responsibility, Internal Affairs (OPR-IA); 

(2) the USMS Proposing Officials; and (3) the USMS Deciding Official. 

Reporting Allegations of Sexual Misconduct and Sexual Harassment90 

The USMS employs a three-tier evaluation process to determine 

whether an allegation of misconduct warrants full investigation, should 

be referred back to the originating office (district or division) as a 

management referral, or discretionarily closed due to insufficient 

evidence. When an allegation of misconduct is reported to USMS 

Internal Affairs, the Deputy Chief Inspector, the Chief Inspector, and the 

Deputy Assistant Director review the allegation at the outset to make 

these determinations. If there is insufficient evidence, reviewers 

discretionarily close the matter. 

89 FBI Offense Codes and Penalty Guidelines, January 15, 2012. 

90 USMS Policy Directive, 2.2. General Operations, Critical Reporting 

Requirements, undated. 

80
 
 

 

 

 

 

 

Investigating Allegations of Sexual Misconduct and Sexual Harassment91 

Where there is sufficient evidence, but the reviewers believe the 

misconduct warrants a suspension of 14 days or less (discipline), OPR-IA 

refers the matter back to the originating office for investigation. The 

OPR-IA reviewers rely on their institutional knowledge, but do not 

consult the USMS Table Disciplinary Offenses and Penalties when 

determining if an allegation warrants full investigation or referral back to 

the originating office. 

In addition, if the allegation raises security concerns for USMS or 

affects the employee’s continued ability to hold a security clearance, and 

the allegation is fully investigated at headquarters, the OPR-IA Chief 

Inspector refers the matter to the Office of Security Programs, Tactical 

Operations Division (OSP TOD). OSP TOD does not receive information 

about matters referred back to the originating office. 

If the matter warrants full investigation, USMS Inspectors collect 

evidence and signed sworn statements and conduct interviews. At the 

conclusion of the investigation, the Inspector writes a final report of 

investigation. USMS has a goal to complete a headquarters investigation 

within 90 days. At the close of the investigation, the final report is sent 

to the USMS Proposing Officials for adjudication. 

Adjudicating Reports of Investigation92 

The USMS has two adjudication processes depending upon the 

severity of the proposed action to be taken based on the results of the 

investigation conducted. 

Letters of Reprimand and Suspensions of 14 Days or Less (Discipline)93 

Once an allegation is referred back to the field, district or division 

management work with the Discipline Management Unit (DM) to collect 

additional evidence, complete an incident or field report, and, ultimately, 

impose discipline. Typically, DM Human Resources Specialists consult 

the offense tables, determine case precedent, and obtain the Douglas 

Factors from the field to draft the proposal and decision letters. In some 

cases, the originating office drafts the letters with Discipline 

91 USMS Policy Directive, 2.2, General Operations, Critical Reporting 

Requirements, undated. 

92 USMS Policy Directive, Human Resources, 3.3, Performance & Related Matters, 

Discipline and Adverse Actions, 2007. 

93 Unlike the other components, the USMS issues a formal proposal and 

decision letter where the proposed penalty is a letter of reprimand. 

81
 
 

 

Management’s assistance. DM has a goal to complete the adjudication of 

a management referral within 120 days. 

For these cases, the Chief Deputy U.S. Marshal or division 

counterpart serves as the proposing official in discipline cases, while the 

U.S. Marshal or Division counterpart serves as the Deciding Official. 

Employees subject to discipline may make an oral or written response, or 

both, to their respective Deciding Officials, and may grieve the decision to 

the official designated in the decision letter. 

Suspensions of 15 days or More up to Removal (Adverse Actions) 

For suspensions of 15 days or more up to removal, the two USMS 

Proposing Officials are responsible for proposing disciplinary action, 

while the USMS Deciding Official renders discipline decisions. The 

USMS Proposing Officials are assigned cases based on their availability. 

When drafting the proposal, the Proposing Official consults the final 

report of investigation, case precedent, and the offense tables to 

determine the appropriate penalty. 

Unlike some of the other components that use Human Resources 

Specialists to draft the proposal letter, the USMS Proposing Officials 

draft the proposal letters for adverse actions cases. The USMS Office of 

General Counsel also reviews for legal sufficiency all letters where 

adverse action is proposed. Once the proposal letter is approved by 

General Counsel, it is issued to the employee and their district or 

division management. 

To maintain the independence of the USMS Proposing and 

Deciding Officials, the Discipline Management Unit (DM) provides the 

USMS Deciding Official with the final report of investigation and the 

proposal letter to render a decision. Like the other components, USMS 

employees are provided a reasonable period of time (10 days) to make an 

oral and/or written reply to the USMS Deciding Official. 

The USMS Deciding Official reviews the final report of 

investigation, case precedent, the employee oral and/or written reply, 

and the Douglas Factors when rendering a discipline decision. The 

Office of General Counsel also reviews the decision letter for legal 

sufficiency. Once approved, the final decision letter is issued and the 

employee is advised that they may appeal the decision before the MSPB. 

If there is no appeal, district or division management must ensure the 

proscribed penalty is imposed. 

82
 
 

 

 

 

 

 

 

 

 

 

 

 

 

USMS Guidance Table of Disciplinary Offenses and Penalties94 

The USMS Guidance Table of Disciplinary Offenses and Penalties is 

virtually identical to the DEA Guide for Disciplinary Offenses and 

Penalties and contains six offense categories that could presumably 

address allegations of sexual misconduct, including Unprofessional or 

Inappropriate Conduct of a Sexual Nature, Sexual Harassment, and 

Retaliation against an Employee Resulting from or in Connection with an 

Allegation of Sexual Harassment. 

Other offense categories that do not specifically address sexual 

misconduct, but may under certain circumstances be a type of sexual 

misconduct, are Improper Association with a Convicted Felon, Confidential 

Source and/or Persons Connected with Criminal Activity, and 

Disrespectful or Unprofessional Conduct. 

Standards of Conduct 

All of the components have specific policies, often referred to as 

their standards of conduct, which inform employees of the behavior 

expected of them. After reviewing the standards of conduct of the law 

enforcement components, we learned that they offer specific guidance 

related to sexual harassment and inappropriate relationships, but not 

other forms of sexual misconduct. Generally, the components’ offense 

tables provide more information.95 

94 USMS Guidance Table of Disciplinary Offenses and Penalties, May 3, 2012. 

95 See generally ATF Order 2130 1A, Conduct and Accountability, February 7, 

2012; DEA Personnel Manual, Section 2735.15(A)(1), Standards of Conduct, undated; 

USMS Policy Directives, Code of Professional Responsibility, January 8, 2009; FBI Ethics 

and Integrity Program Policy Implementation Guide 0454PG, October 5, 2011; and the 

FBI Personal Relationships Policy, March 27, 2001. For more information about the law 

enforcement components’ standards of conduct, refer to the OIG Evaluation and 

Inspections Report, 15-2, January 2015, Review of Policies and Training Governing OffDuty Conduct by Department Employees Working in Foreign Countries. 

83
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX 3: LAW ENFORCEMENT COMPONENT OFFENSE 

TABLES – SEXUAL MISCONDUCT AND SEXUAL HARASSMENT
 

Law Enforcement Offense Tables – Sexual Misconduct and Sexual
 

Harassment 

ATF Offenses Explanation 

Association with 

Disreputable Persons 

Includes, but not limited to, improper personal 

relationships with convicted felons, informants, and 

subjects of investigations. 

Admonishment to Removal 

Conduct Prejudicial to 

the Government 

Includes criminal, infamous, dishonest, immoral, or 

notoriously disgraceful conduct, or other conduct 

prejudicial to the government. 

Removal 

Failure by Supervisor to 

Report Allegations of 

Sexual Harassment 

No explanation provided. 

Admonishment to Removal 

Inappropriate Behavior Includes, but not limited to, inappropriate actions 

directed toward co-workers, subordinates, or 

supervisors. Also includes behavior (e.g., teasing, jokes, 

gestures, display of materials) of a sexual, sexual 

orientation, gender nature. Also includes intimidating, 

threatening, sexually insensitive remarks. 

Admonishment to Removal 

Poor Judgment and/or 

Conduct Unbecoming a 

Federal Employee/

Special Agent 

Includes, but not limited to, conviction of a criminal 

offense, engaging in sexual activity in ATF office space, 

and creating an embarrassing situation for the Bureau. 

Admonishment to Removal 

DEA Offenses Explanation 

Conduct Unbecoming a 

DEA Employee 

No explanation provided. 

Reprimand to Removal 

Criminal, Dishonest, 

Infamous, or Notoriously 

Disgraceful Misconduct 

No explanation provided. 

14-Day Suspension to Removal 

Disrespectful or 

Unprofessional Conduct 

Includes use of insulting, abusive, or obscene language, 

angry outbursts, disrespectful comments, provoking 

quarrels, or inappropriate remarks. 

Reprimand to Removal 

Improper Association 

with a Convicted Felon, 

Confidential Source 

and/or Persons

Connected with Criminal 

Activity 

All DEA employees are held accountable for this type of 

behavior. 

Reprimand to Removal 

84
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DEA Offenses Explanation 

Retaliation against an 

Employee Resulting from 

or in Connection with an 

Allegation of Sexual

Harassment 

Any person who has been found to have engaged in the 

act of retaliation. 

Reprimand to Removal 

Sexual Harassment As defined in Title VII of the Civil Rights Act of 1964 

Removal 

Unprofessional or 

Inappropriate Conduct of 

a Sexual Nature 

Includes teasing, jokes, actions, gestures, display of 

materials, or remarks of a sexual nature. 

Reprimand to Removal 

FBI Offenses Explanation 

Asset/CW/Informant/CH 

S (Source) – Improper 

Personal Relationship 

Engaging in a social, romantic, or intimate relationship 

or association with a source. 

Letter of Censure to Removal 

Disruptive Behavior Engaging in inappropriate verbal or physical conduct 

while on official business. 

Disruptive Behavior or in an FBI space or vehicle, which 

is disruptive or negatively impacts the workplace. 

Oral Reprimand to 10 Days 

Improper Relationship – 

Criminal Element 

Without authorization, engaging in an ongoing social, 

romantic, or intimate relationship or association with a 

person involved in criminal activities. 

Letter of Censure to Removal 

Improper Relationship

with a Subordinate 

Engaging in or seeking a romantic or intimate 

relationship with a subordinate that violates the 

strictures of the FBI’s Personal Relationships Policy. 

Letter of Censure to Removal 

Indecent/Lascivious Acts Inappropriately acting in a manner to appeal to or 

gratify the sexual desires of the employee, his victim, or 

both or indecently exposing a body part to public view. 

5-Day Suspension to Dismissal 

Other Felonies Engaging in an act which is considered a felony in the 

jurisdiction in which the act occurred. 

10-Day Suspension to Removal 

Other Misdemeanors Engaging in an act which is considered a misdemeanor 

in the jurisdiction in which the act occurred. 

Letter of Censure to Removal 

Sexual Harassment Making unwelcome or unwanted sexual advances, 

requesting sexual favors, or engaging in other verbal or 

physical conduct of a sexual nature. 

Letter of Censure to Removal 

85
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FBI Offenses Explanation 

Sexual Misconduct – Engaging in sexual, intimate, or romantic activity with a 

Consensual willing partner(s) in an inappropriate location or while 

on duty. 

Letter of Censure to Removal 

Unprofessional Conduct – 

Off Duty 

Engaging in conduct, while off duty, which dishonors, 

disgraces, or discredits the FBI; seriously calls into 

question the judgment or character of the employee; or 

compromises the standing of the employee among his 

peers or his community. 

Oral Reprimand to Removal 

Unprofessional Conduct – 

On Duty 

Engaging in conduct, while on duty, which dishonors, 

disgraces, or discredits the FBI; seriously calls into 

question the judgment or character of the employee; or 

compromises the standing of the employee among his 

peers or his community. 

Letter of Censure to Removal 1 Prior to January 2012, this offense category was previously known as “Sexual Misconduct – NonConsensual.” When a revision of the FBI offense table occurred, the category name was changed to “Sexual 

Harassment.” There is no material difference in the explanations provided for both offense categories. 

USMS Offenses Explanation 

Conduct Unbecoming a 

USMS Employee 

No explanation provided. 

Reprimand to Removal 

Conduct Which Creates a 

Reasonable Belief that 

the Employee Has 

Committed a Crime for 

Which a Sentence of 

Imprisonment May Be 

Imposed 

No explanation provided. 

Indefinite Suspension to Removal 

Conviction of a Law 

Enforcement Officer of a 

Felony 

No explanation provided. 

Removal 

Criminal, Dishonest, 

Infamous, or Notoriously 

Disgraceful Misconduct 

No explanation provided. 

14-Day Suspension to Removal 

Disrespectful or 

Unprofessional Conduct 

Includes disrespectful comments and inappropriate 

remarks. 

Reprimand to Removal 

Improper Association 

with a Convicted Felon, 

Witness Protection 

Program Participant, 

Confidential Source 

and/or Persons 

Connected with Criminal 

Activity 

All USMS employees are held accountable for this type 

of behavior. 

Reprimand to Removal 

86
 
 

 

 

 

 

 

 

 

 

 

 

 

USMS Offenses Explanation 

Retaliation against an 

Employee Resulting from 

or in Connection with an 

Allegation of Sexual 

Harassment 

Any person who has been found to have engaged in the 

act of retaliation. 

5-Day Suspension to Removal 

Sexual Harassment As defined in Title VII of the Civil Rights Act of 1964, as 

amended. 

5-Day Suspension to Removal 

Unprofessional or 

Inappropriate Conduct of 

a Sexual Nature 

Includes teasing, jokes, actions, gestures, display of 

materials, or remarks of a sexual nature. 

Reprimand to Removal 

Violations of the Code of 

Professional 

Responsibility 

No explanation provided. 

Reprimand to 14-Day Suspension 

Sources: Component offense tables. 

87
 
 

 

 

 

 

 

 

 

 

APPENDIX 4: SEXUAL MISCONDUCT AND SEXUAL 

HARASSMENT OFFENSE CATEGORY ANALYSIS
 

The law enforcement components often applied general offense 

categories, for example, Conduct Unbecoming a Federal Employee, to 

various types of allegations of sexual misconduct and sexual 

harassment. To conduct the offense category analysis, we reviewed the 

misconduct case files to determine the nature of the sexual misconduct 

and sexual harassment that occurred in each case. We created 

standardized offense categories to allow us to better characterize the 

misconduct and to make comparisons across the components and 

among demographic categories such as position, race, and grade level.96 

After normalizing the offense categories, we analyzed the frequency 

with which sexual misconduct or sexual harassment was alleged to have 

occurred in each component. We assessed the rate that this type of 

alleged misconduct occurred by population and determined the types of 

alleged offenses that occurred most often. 

Rate of Sexual Harassment and Sexual Misconduct Allegations by 

Population 

Based on the number of reported alleged offenses involving sexual 

harassment and sexual misconduct, the FBI had the lowest rate of this 

type of misconduct. The USMS had the highest rate of this type of 

misconduct. Table 2 describes the rate of sexual misconduct and 

harassment by population. 

Table 2: Rate of Sexual Harassment and Sexual Misconduct 

Allegations by Population
 

Employees Total Offenses 

Rate by 

Population 

ATF 4,719 51 10.8 

DEA 11,053 136 12.3 

FBI 35,344 343 9.7 

USMS 5,602 91 16.2 

Sources: Component misconduct case files and annual reports. 

96 For the purposes of this analysis, we isolated all the sexual misconduct and 

sexual harassment offenses. Many subjects were alleged to have committed additional 

offenses that were not sexual in nature (for example, “Lack of Candor”). Therefore, we 

removed those offenses from our analysis. 

88
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATF has 4,719 employees. There were 51 alleged sexual 

misconduct and sexual harassment offenses. For every 1,000 ATF 

employees, there were 10.8 alleged offenses of this type. 

The DEA has 11,053 employees. There were 136 alleged sexual 

misconduct and sexual harassment offenses. For every 1,000 DEA 

employees, there were 12.3 alleged offenses of this type. 

The FBI has 35,344 employees. There were 343 alleged sexual 

misconduct and sexual harassment offenses. For every 1,000 FBI 

employees, there were 9.7 alleged offenses of this type. 

The USMS has 5,602 employees. There were 91 alleged sexual 

misconduct and sexual harassment offenses. For every 1,000 USMS 

employees, there were 16.2 alleged offenses of this type. 

We also looked at the types of sexual misconduct and sexual 

harassment allegations that were reported at each law enforcement 

component. Table 3 shows the number of alleged sexual misconduct and 

harassment allegations by offense type. 

Table 3: Alleged Sexual Misconduct and Sexual
 

Harassment by Offense Type
 

Offense Categories ATF DEA FBI USMS Total 

Inappropriate Relationship 

(Supervisor/Subordinate and Colleagues) 10 18 77 15 120 

Sexting 14 23 36 13 86 

Sexual Harassment 3 28 50 4 85 

Misuse of Government Property to 

Facilitate Sexual Activity (Office/Vehicle) 4 8 56 6 74 

Inappropriate Sexual Comments and/or 

Gestures 9 1 29 22 61 

Improper Association with a Criminal 

Element 3 13 9 8 33 

Solicitation of Prostitutes (Overseas) 0 19 6 1 26 

Solicitation of Prostitutes (Domestic) 1 2 15 1 19 

Supervisor Failure to Report Sexual 

Misconduct 2 2 8 4 16 

Alleged Sexual Assault 0 3 10 3 16 

Alleged Sexual Abuse (Minor) 1 3 11 1 16 

Improper Association with a Confidential 

Source 1 7 6 0 14 

Child Pornography 1 2 7 1 11 

Retaliation for Reporting Sexual 

Misconduct/Harassment 0 1 9 0 10 

Obstruction of an Official Investigation 0 3 5 1 9 

Alleged Sexual Abuse (Inmate) 0 0 0 8 8 

Indecent Exposure 0 0 3 3 6 

Videotaping Undressed Women without 

Consent 0 1 3 0 4 

89
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Offense Categories ATF DEA FBI USMS Total 

Assault 0 2 0 0 2 

Solicitation of Sex (Multiple Partners) 1 0 1 0 2 

Inappropriate Relationships (Foreign 

Nationals) 0 0 1 0 1 

Misuse of Position (Strip Club) 0 0 1 0 1 

Unprofessional Conduct – Off Duty (Strip 

Club) 1 0 0 0 1 

Grand Total 51 136 343 91 621 

Sources: Component misconduct case files. 

Inappropriate Relationship (Supervisor/Subordinate and Colleagues) 

Across the law enforcement components, the offense category 

analysis showed there were 120 total alleged offenses involving 

“Inappropriate Relationship (Supervisor/Subordinate and Colleagues).” 

Nineteen percent of the total number of alleged sexual misconduct and 

sexual harassment offenses involved this offense category. 

As compared to the other components, “Inappropriate Relationship 

(Supervisor/Subordinate and Colleagues)” was alleged to have been 

committed more often than any other offense at the FBI. At the FBI, 

there were 77 alleged offenses of this type, or 22 percent of the total 

number of sexual harassment and sexual misconduct offenses. 

Sexting 

The second most common alleged offense was the transmission of 

sexually explicit texts, e-mail messages, or images, known colloquially as 

“sexting.” We were unable to fully analyze this offense category because 

the law enforcement components do not have the technology to detect 

the transmission of sexually explicit images or photographs sent via text 

message. Therefore, we only analyzed the alleged offenses reported to 

their respective internal affairs offices. 

The offense category analysis showed that there were 86 total 

alleged offenses involving sexting. Fourteen percent of the total number 

of alleged sexual misconduct and sexual harassment offenses involved 

this offense category. 

As compared to the other components, sexting was alleged to have 

been committed most often at ATF. There were 14 alleged offenses of 

this type, or 27 percent of the total number of alleged offenses. 

Sexual Harassment 

The third most common alleged offense involved behavior we 

considered sexual harassment. The offense category analysis showed 

there were 85 total alleged offenses of this type. Fourteen percent of the 

90
 
 

 

 

total number of alleged sexual misconduct and sexual harassment 

offenses involved this offense category. 

The DEA and the FBI had the majority of alleged offenses involving 

sexual harassment. At the DEA, there were 28 alleged offenses of this 

type and 50 alleged offenses at the FBI. 

Solicitation of Prostitutes (Overseas) 

There were 26 total allegations involving the “solicitation of 

prostitutes (overseas).” These allegations constituted 4 percent of the 

total number of alleged sexual misconduct and sexual harassment 

offenses. 

The DEA had the majority of alleged offenses involving “solicitation 

of prostitutes (overseas).” There were 19 alleged offenses of this type, or 

14 percent of the total number of alleged offenses. 

91
 
APPENDIX 5: DOUGLAS FACTORS
 

The Merit Systems Protection Board, in its landmark decision, 

Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), established 

criteria that supervisors must consider in determining an appropriate 

penalty to impose for an act of employee misconduct. 

Although not an all-inclusive list, the following factors must be 

considered, when relevant, in determining the severity of the discipline: 

1.	 The nature and seriousness of the offense, and its relation to 

the employee’s duties, position, and responsibilities, including 

whether the offense was intentional or technical or inadvertent, 

or was committed maliciously or for gain, or was frequently 

repeated; 

2.	 The employee’s job level and type of employment, including 

supervisory or fiduciary role, contacts with the public, and 

prominence of the position; 

3.	 The employee’s past disciplinary record; 

4.	 The employee’s past work record, including length of service, 

performance on the job, ability to get along with fellow workers, 

and dependability; 

5.	 The effect of the offense upon the employee’s ability to perform 

at a satisfactory level and its effect upon supervisors’ 

confidence in the employee’s work ability to perform assigned 

duties; 

6.	 The consistency of the penalty with those imposed upon other 

employees for the same or similar offenses; 

7.	 The consistency of the penalty with any applicable agency table 

of penalties; 

8.	 The notoriety of the offense or its impact upon the reputation of 

the agency; 

9.	 The clarity with which the employee was on notice of any rules 

that were violated in committing the offense, or had been 

warned about the conduct in question; 

92
 
10. The potential for the employee’s rehabilitation; 

11. Mitigating circumstances surrounding the offense such as 

unusual job tensions, personality problems, mental 

impairment, harassment, or bad faith, malice or provocation on 

the part of others involved in the matter; and 

12. The adequacy and effectiveness of alternative sanctions to 

deter such conduct in the future by the employee or others. 

93
 
APPENDIX 6: ILLUSTRATION OF ACCESS ISSUES
 

Example of DEA Redaction 

The DEA initially provided case summaries to the OIG that were 

substantially redacted. As a result, the OIG was unable to determine the 

nature and circumstances of the allegations reported. The following five 

pages are an example of one of the redacted case summaries the DEA 

provided in its initial production of documents. 

94
 
OPR Case Record and Disposition 

Subject Nrmre: Agent GS-14 

SUBJECT 1 Admill Lu.oe: Ltd Dilly: ImJejillile Leo.oe: 

OIG: No O9H Improper AssO(:iation with D Criminal Element 

DlIIe/ollRE: 02105120[3 IIRIJI'ropoIul: lIRB Proposul Dille: 

Filial Df!ciIil)II: 

Decisioll Relllorks: 

Subject NOlllt: 

Admill Lto,'t: 

OIG: No 

FillulDo)'s Off: Fillul DecisiOlI DUle: 

Agent GS-14 

Ltd D rr/)': Illdejilriff! Leo.'t: 

Alleged 0l/ellses: 09 Conduct Unbecoming (agents) 

[4 Failure to Follow Instmctions 

28· Poor Judgment 

Dale Iu liRE: 0210512013 IIRE/'ro/lUsal: IIR8 Prl)posa/ DOff!: 

Filial DecisiOlt: Fimr' Do)'s Off: Filla/DecisiOlr DUle: 

Decisiall Remarks: 

SlIbjecl Nome: Agent GS-14 

Alllllill Leo.'e: LId 0111)': Illdejillile Leul'e: 

OIG: No Alleged OffemeI: 09 Conduct U~becoming (pgents) 

IIRD Duys Off: 

SUBJECT 4 

IIRB Days Off: 

SUBJECT 5 

09H Improper Association with n Criminal E[ement 

Dale 10 liRE: 0210512013 IIIW I'rl)IIl)Su/: 

Filial Dtcisioll: 

Decisioll Remarks: 

_,.,.., Auguil 07, 2013 

OEAH Form 376 

-~, 

Filllll Days Off: 

IIRD Proposal Dale: lIRB Days Off: 

Filla/ Decisioll DOff!: 

Page 2 0( 28 

95
 
OPR Case Record and Disposition 

- -

--

-

----

Subject Nalllc: Agellt GS-13 

Adm;" Leal'e: Ltd Dm)': Indefinite LeUl'e: 

DIG: No Alleged Offenses: 09 Conduct Unbecoming (agents) 

Dnle (o HRB: 0210512013 HRB Prol'o.ml: HRB Proposal Date: 

Filial Decision: Filial DuJ's OJ/" Filial Deci.~ilm Dute: 

Decision Remarks: 

Suhject Nallle: Agent OS-1 3 

Adlll;1I Leave: L/(fDuI),: Im/eftnitc LeUl'e: 

DIG: No Allege(/ Offenses: 09 Conduct Unbecoming (agents) 

Date/o IIRD: 02/05/2013 HRD Proposal: 

Filial DecisiOIl.' 

Decisioll RClIlurks: 

Wednesday, August 01, 2013 

OEAH Form 376 

March 2001 

Filial Days Off: 

HRB Proposal Dale: 

Filial Dcdsiol/ Dmc: 

SUBJECT 6 

HRB Days Off: 

SUBJECT 7 

HRB Days Ojf: 

Page 3 of 28 

96
 
OPR Case Record and Disposition 

Subject Name: Agent OS-13 

Admill Leave: Ltrl Dilly: ludefinite Le(we: 

DIG: No Alleged Offemes: 09 Conduci Unbecoming (agents) 

28* Poor Judgment 

Darc to HRB: 02/05/2013 HRIJ I'rQPo,wll: HRO Proposal Dare: 

Filial Decision: Fimti D(lJ'.~ Off: Filial Dc(:is;oll Date: 

Decision Remarks: 

Is tllere drug or 1I01lllrllg evil/cue/! ill fhi.~ case: No 

No /loll-drllg eviden ce; till exllihil.~ refilmed 10 case file: No 

Referral o/Collalcrtli isslles 10 other ullit/org(lI/izarion; No 

Closed By: Date Closed: 

Allegatioll Descriptioll: 

SUBJECT 8 

H R B Days Off: 

Wodnllsday, Allgus! 07, 2013 

OEAH F(l(ITI376 

March 2001 

Page 4 01 28 

97
 
98
 
APPENDIX 7: THE OFFICE OF THE DEPUTY ATTORNEY GENERAL’S 

RESPONSE TO THE DRAFT REPORT 

99
 

u.s. Department of Justice 

Office of the Deputy Attorney General 

Washington. DC 20530 

March 13.2015 

MEMORANDUM 

TO: Michael Horowitz 

Inspector General 

U.S. Department of Justice 

FROM: Carlos Felipe Uriarte 

Associate Deputy Attorney General 

Andrew D. Goldsmith 

National Criminal Discovery Coordinator 

SUBJECT: Response: Handling of Sexual Harassment and Misconduct Allegations 

by the Department's Law Enforcement Components 

We appreciate the audit undertaken by the Department of Justice (DO] or the 

Department). Office of the inspector General (OIG) regarding the handling of sexual harassment 

and misconduct allegations by the Department's law enforcement components. This review 

examined the nature, frequency, reporting, investigation, and adjudication of such allegations in 

the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Drug Enforcement 

Administration (DEA); the Federal Bureau of investigation (FBI); and the United States 

Marshals Service (USMS). The report makes eight recommendations to improve the law 

enforcement components' disciplinary and security processes, four of which are directed to the 

Department. We address these recommendations below, and concur with all four. 
Recommendation No.5 to the Department of Justice: The Office of the Deputy Attorney 

General (ODAG) should ensure that the Department's zero tolerance policy on sexual 

harassment is enforced in the law enforcement components and that the components' tables of 

offenses and penalties are complimentary and consistent with respect to sexual harassment. 

Response: Concur. The Department will work with the law enforcement components to 

ensure that the Department's zero tolerance policy on sexual harassment is enforced and 

that the components' offense tables and penalties are complimentary and consistent with 

respect to sexual harassment. 

Recommendation No.6 to the Department of Justice: The ODAG should develop policy 

explicitly prohibiting the solicitation of prostitutes in a foreign jurisdiction even if the conduct is 

legal or tolerated, and ensure that all component offense tables include language prohibiting this 

fonn of misconduct. 

Response: Concur. The Department will develop policy guidance that communicates 

the Department's expectations regarding the solicitation of prostitutes in foreign 

jurisdictions even when the conduct is legal or tolerated, and ensure that all component 

offense tables include language prohibiting this conduct. We expect that this guidance 

will assist the ATF, DEA, FBI, and USMS in developing their own policies regarding the 

solicitation of prostitutes in foreign jurisdictions. 

Recommendation No.7 to the Department of Justice: All four law enforcement components, 

in coordination with ODAG, should acquire and implement technology and establish procedures 

to effectively preserve text messages and images for a reasonable period of time, and 

components should make this infonnation available to misconduct investigators and, as 

appropriate, for discovery purposes. 

Response: Concu r. The Department is committed to ensuring the proper preservation of 

electronic communications, especially when such communications implicate the 

Government's legal discovery obligations. To this end, the Deputy Attorney General has 

issued guidance to the four law enforcement components, in addition to all United States 

Attorneys' Offices and the criminal litigating components, to ensure the proper 

preservation and disclosure of electronic communications in Federal criminal cases. 

While this policy requires the Department's law enforcement components to preserve all 

potentially discoverable electronic communications, the Department will work with the 

components to expand these preservation efforts by acquiring and implementing 

technology and establishing procedures to effectively preserve text messages and images 

for a reasonable period of time. The Department will also work with the components to 

ensure that this information is availabJe for misconduct investigations and, as appropriate, 

for discovery purposes. 

Recommendation No.8 to the Department of Justice: All four law enforcement components, 

in coordination with ODAG, should take concrete steps to acquire and implement technology to 

-2-

100
 
be able to, as appropriate in the circumstances, proactively monitor text message and image data 

for potential misconduct. 

Response: Concur. As discussed above, the Department is committed to ensuring the 

proper preservation of electronic communications. especially when such communications 

implicate the Govenunent's legal discovery obligations. The Department also 

understands the potential value of these electronic communications to misconduct 

investigations. To that end, the Department will take concrete steps to study the 

feasibility of acquiring and implementing technology to be able to, as appropriate in the 

circumstances, proactively monitor text message and image data for potential 

misconduct. 

cc: Mark Giuliano, Federal Bureau of Investigation 

Michele Leonhart, Drug Enforcement Administration 

B. Todd Jones, Bureau of Alcohol, Tobacco, Firearms and Explosives 

Stacia Hylton, United States Marshals Service 

-3-

101
 
 

 

 

 

 

 

APPENDIX 8: OIG ANALYSIS OF THE OFFICE OF THE DEPUTY 

ATTORNEY GENERAL’S RESPONSE
 

The Office of the Inspector General (OIG) provided a draft of this 

report to the Office of the Deputy Attorney General (ODAG) for its 

comment. The ODAG’s response is included in Appendix 7 of this report. 

The OIG analysis of the ODAG’s response and actions necessary to close 

the recommendations are discussed below. 

Recommendation 5: The Office of the Deputy Attorney General (ODAG) 

should ensure that the Department’s zero tolerance policy on sexual 

harassment is enforced in the law enforcement components and that the 

components’ tables of offenses and penalties are complimentary and 

consistent with respect to sexual harassment. 

Status: Resolved. 

ODAG Response: The Department concurred with this 

recommendation and will work with the law enforcement components to 

ensure that the Department’s zero tolerance policy on sexual harassment 

is enforced and that the components’ offense tables and penalties are 

complimentary and consistent with respect to sexual harassment. 

OIG Analysis: The ODAG’s plan of action is responsive to our 

recommendation. By June 30, 2015, please provide information 

describing the enforcement of the Department’s zero tolerance policy on 

sexual harassment and demonstrating that the component’s tables of 

offenses and penalties are complimentary and consistent with the policy. 

Recommendation 6: The Office of the Deputy Attorney General (ODAG) 

should develop policy explicitly prohibiting the solicitation of prostitutes 

in a foreign jurisdiction even if the conduct is legal or tolerated, and 

ensure that all component offense tables include language prohibiting 

this form of misconduct. 

Status: Resolved. 

ODAG Response: The Department concurs with this 

recommendation and will develop policy guidance that communicates the 

Department’s expectations regarding the solicitation of prostitutes in 

foreign jurisdictions, even when the conduct is legal or tolerated, and 

ensure that all component offense tables include language prohibiting 

this conduct. The Department expects that this guidance will assist ATF, 

the DEA, the FBI, and the USMS in developing their own policies 

regarding the solicitation of prostitutes in foreign jurisdictions. 

102
 
 

 

 

 

 

 

OIG Analysis: The ODAG’s plan of action is responsive to our 

recommendation. By June 30, 2015, please provide copies of the policy 

guidance that communicates the Department’s expectations regarding 

the solicitation of prostitutes in foreign jurisdictions even when the 

conduct is legal or tolerated. In addition, please provide documentation 

showing that the components have incorporated this policy into their 

offense tables. 

Recommendation 7: All four law enforcement components, in 

coordination with ODAG, should acquire and implement technology and 

establish procedures to effectively preserve text messages and images for 

a reasonable period of time, and components should make this 

information available to misconduct investigators and, as appropriate, for 

discovery purposes. 

Status: Resolved. 

ODAG Response: The ODAG concurred with this recommendation 

and stated that it is committed to ensuring the proper preservation of 

electronic communications, especially when such communications 

implicate legal discovery obligations. To this end, the ODAG has issued 

guidance to the four law enforcement components, the United States 

Attorney’s Offices, and the criminal litigating components, to ensure the 

proper preservation and disclosure of electronic communications in 

federal criminal cases. 

In addition, the ODAG will work with the components to expand 

their preservation efforts by acquiring and implementing technology and 

establishing procedures to effectively preserve text messages and images 

for a reasonable period of time. Further, the ODAG will work with the 

components to ensure that this information is available for misconduct 

investigations and, as appropriate, for discovery purposes. 

OIG Analysis: The ODAG’s plan of action is responsive to our 

recommendation. By June 30, 2015, please provide a status update on 

the ODAG’s efforts to expand component’s preservation efforts by 

acquiring and implementing technology and establishing procedures to 

effectively preserve text messages and images for a reasonable period of 

time. Further, please provide a status update regarding the ODAG’s 

work with the components to ensure that this information is available for 

misconduct investigations and, as appropriate, for discovery purposes. 

Recommendation 8: All four law enforcement components, in 

coordination with ODAG, should take concrete steps to acquire and 

implement technology to be able to, as appropriate in the circumstances, 

103
 
 

 

 

proactively monitor text message and image data for potential 

misconduct. 

Status: Resolved. 

ODAG Response: The ODAG concurred with this recommendation 

and stated that it is committed to ensuring the proper preservation of 

electronic communications, especially when such communications 

implicate legal discovery obligations. The ODAG also understands the 

potential value of these electronic communications to misconduct 

investigations. To that end, the ODAG will take concrete steps to study 

the feasibility of acquiring and implementing technology to be able to, as 

appropriate in the circumstances, proactively monitor text message and 

image data for potential misconduct. 

OIG Analysis: The ODAG’s plan of action is responsive to our 

recommendation. By June 30, 2015, please provide a status update on 

the ODAG’s research on the feasibility of acquiring and implementing 

technology to be able to, as appropriate in the circumstances, proactively 

monitor text message and image data for potential misconduct. 

104
 
APPENDIX 9: THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS 

AND EXPLOSIVES’ RESPONSE TO THE DRAFT REPORT 

u.s. Department or Justice 

Bureau of Alcohol, Tobacco, 

Firearms and Explosives 

6OOOOO:ARP 

8310 

I'I.\R 1 3201. 

MEMORANDUM TO: Assistant Inspector General 

Evaluations and Inspections Division 

Office oflnspcctor General 

FROM: Assistant Director 

Office of Professional Responsibility and Security Operations 

Bureau of Alcohol, Tobacco, Firearms IIlld Explosives 

SUBJECT: Review of the Handling of Sexual Harassment and Misconduet 

Alleptions by the Department's Law Enforcement Components 

The Bureau of Alcohol, Tobacco, Fireanns and Explosives (ATF) appreciates the opportunity to 

respond to the recommendations contained in the above cited report. We welcome the Office of 

the Inspector General's (OIG) constructive comments and recommendations on this matter. 

RecommendatioR 1. All fou, law enforcement components should ensure that supervlso.,. 

and managen report all aUqations of sexual misconduct and sexual harassment to 

headquarters, and they should consIder ensuring compliance with this requirement by 

Including it in their performance standards 50 as to subject supervisors and managen to 

possible disclpllDe for railing to report allegations. 

Response (Concur): ATF agrees with OIG on the importance of emphasizing and ensuring 

compliance with the requirement for managers to report allegations of sexual harassment and 

misconduct. To this end, A TF will issue a written reminder to all ATF employees about the 

importance of reporting allegations of misconduct, to include sexual misconduci. The notice will 

remind employees thai failure 10 report misconduct will be investigated by the Internal Affairs 

Division IUld reported to the Professional Review Board for possible discipline. 

We have considered the suggestion of adding the reporting requirement to our petfonnance 

standards, but have concluded this specific means ofreinforeing compliance would be 

problematic. Perfonnance management systems in general arc not disciplinary systems; the 

ovenotching goal of such systems is to recognize achievements and identify pcrfonnance 

shortfalls. Employees who fail to meet a perfonnance standard arc usually provided with 

recommendations for improvement, training opportunities, or other avenues to foster better 

pcrfonnance - they are DQt $ubjcet to disciplinary action for any failure to pcrfonn to a given 

105
 
standard. In addition, it would be diflicultto craft perfonnance criteria for this standard that 

would effectively recognize different levels of performance or stand as an effective measure of 

performance, i.e. whal would constitute outstanding perfonnance under this standard versus 

merely effective or successful performance? How would managers be evaluated under this 

criteria ifno allegations ofmiscondud occurred during the apptllisal period? Additionally, the 

fact thai a supervisor or manager has failed to report misconduct generally does not come 10 light 

until well after the fact. Given that performance management systems operate on an annual 

basis, it is not elear how prior performance appraisals might be amended should an employee's 

failure to meet this standard not be documented until two or three years after the appraisal period 

has ended. Nevertheless, as noted above, ATF will use other means to reinforce the reporting 

requirement. 

Recommendation 2. ATF, DEA, and USMS should eosure Ibat aU oon-frivolous sexual 

harassmeot aod sexual misconduct allegations are referred to their respecdve security 

personnel to determine if the misconduct raises conccrns about the employee's continued 

eligibility to hold a security clearance, and to determine whether the misconduct prflents 

secnrity risks for the componenL 

Responsc (Concnr): During the course of this review, A TF implemented new policy, effective 

October 20, 2014, to require coordination between our Internal Affairs Division (lAD) and 

Perwnnel Security Branch (PSB). Under the new policy, lAD is required to share all incident 

reports with PSB at the time they arc generated. lAD is also required to share all reports of 

investigation when they are delivered to the Professional Review Board. IfPSB determines that 

risks are present, lAD is required to provide PSB with full access to the case file. 

On October 31, 2014, ATF provided OIG with docwnentation of this new policy, which satisfies 

the objective of the recommendation. As such, we respectfully request this recommendation be 

closed. 

Recommendation 3. The components should have aod foUow clear and consistent eriteria 

for determlnio& whether an allegation sbould be investigated at headquarten or should be 

referred back 10 the orieinaline office 10 be handled 85 a management maHer. 

Response (Concur): A TF requires that all allegations of sexual misconduct be reported to lAD 

immediately. lAD completes WI incident report that is reviewed by the OIG's investigations 

division. IfOIG declines to investigate, the case is referred back to ATF. The allegation is then 

reviewed by lAD managers and forwarded to the Assistant Director, Office of Professional 

Responsibility and Security Operations with a rceomrncndation to have either lAD or 

management investigate the allegation. Recommendations are based on the nature of the 

allegation, totality of the circumstances, and potential applicable penalties. lAD's current policy 

of evaluation has worked well and we recommend no further chWlges. 

Recommendation 4. All four law eoforcement components should usc the offensc 

cate&ories speelflcaUy designed 10 address sexual misconduct and sexual harassmenl, and 

rev:lse their tables if tbey are inadequate or otherwise deler the use of such categories. 

106
 
Response (Concur): A TF always uses the offense category from the ATF Guide to Offenses 

and Penalties that is deemed to be the most appropriate for the case at hand. In some instances 

an offense category that is not listed in the Guide may be used if no existing offense category is 

deemed suitable. The selection of the offense category is based on many factors, including most 

significantly, the evidence that is available to prove the elements of each possible charge. The 

provable offense category that is most appropriate to the case is used to propose disciplinary 

action. 

ATF will review its table of penalties and add categories for the solicitation of prostitutes, 

inappropriate workplace relationships, and a general category for sexual misconduct in 

accordance with any guidance issued by the Department. 

Again, thank you for the opportunity to work with you on these matters and we hope we have 

been responsive to your recommendations. If you have any questions, please contact Audit 

Liaison Branch Chief, Adam Pallotto at 202-648-8706. 

Michael Gleysteen 

107
 
 

 

 

 

APPENDIX 10: OIG ANALYSIS OF THE BUREAU OF ALCOHOL, 

TOBACCO, FIREARMS AND EXPLOSIVES’ RESPONSE
 

The Office of the Inspector General (OIG) provided a draft of this 

report to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 

for its comment. ATF’s response is included in Appendix 9 of this report. 

The OIG analysis of ATF’s response and actions necessary to close the 

recommendations are discussed below. 

Recommendation 1: All four law enforcement components should 

ensure that supervisors and managers report all allegations of sexual 

misconduct and sexual harassment to headquarters, and they should 

consider ensuring compliance with this requirement by including it in 

their performance standards so as to subject supervisors and managers 

to possible discipline for failing to report allegations. 

Status: Resolved. 

ATF Response: The ATF concurred with this recommendation 

and agreed on the importance of emphasizing and ensuring compliance 

with the requirement for managers to report allegations of sexual 

harassment and misconduct. To that end, ATF will issue a reminder to 

all ATF employees about the importance of reporting misconduct 

allegations, to include sexual misconduct. The notice will remind 

employees that failure to report misconduct will be investigated by the 

Internal Affairs Division and reported to the Professional Review Board 

for possible discipline. 

ATF also stated that it had considered the suggestion to add the 

reporting requirements to its performance standards but has concluded 

that this specific means of reinforcing compliance would be problematic. 

ATF stated that performance management systems in general are not 

disciplinary systems and that the overarching goal is to recognize 

achievement and identify performance shortfalls. Further, it would be 

difficult to craft performance criteria that would effectively recognize 

different levels of performance or stand as an effective measure of 

performance. Finally, ATF stated that given that performance 

management systems operate on an annual basis, it is unclear how prior 

performance appraisals might be amended in case an employee’s failure 

to meet this standard is not documented until after the appraisal period 

has ended. Nevertheless, ATF stated that it will use other means to 

reinforce the reporting requirement. 

OIG Analysis: ATF’s actions are responsive to this 

recommendation. By June 30, 2015, please provide copies of the notice 

108
 
 

 

 

 

 

 

 

 

 

 

reminding employees about reporting allegations of misconduct and that 

failure to report the misconduct could result in discipline. In addition, 

please provide information about any other means that ATF will use to 

reinforce the reporting requirement. 

Recommendation 2: ATF, DEA, and USMS should ensure that all nonfrivolous sexual harassment and sexual misconduct allegations are 

referred to their respective security personnel to determine if the 

misconduct raises concerns about the employee’s continued eligibility to 

hold a security clearance, and to determine whether the misconduct 

presents security risks for the component. 

Status: Closed. 

ATF Response: ATF concurred with this recommendation and 

stated that on October 20, 2014, it implemented a new policy requiring 

coordination between the Internal Affairs Division (IAD) and the 

Personnel Security Branch (PSB). Under this policy, the IAD is required 

to share all incident reports with the PSB at the time they are generated. 

Further, the IAD is required to share all reports of investigation when 

they are delivered to the Professional Review Board. If the PSB 

determines risks are present, the IAD is required to provide the PSB with 

full access to the case file. The ATF provided the OIG with a copy of the 

policy. 

OIG Analysis: ATF’s actions are responsive to this 

recommendation. We confirmed with the PSB that they are receiving the 

necessary information to determine whether the misconduct cases 

present security risks for the ATF. This recommendation is closed. 

Recommendation 3: The components should have and follow clear and 

consistent criteria for determining whether an allegation should be 

investigated at headquarters or should be referred back to the originating 

office to be handled as a management matter. 

Status: Resolved. 

ATF Response: ATF concurred with this recommendation and 

stated that it requires that all allegations of sexual misconduct be 

reported to the IAD immediately. The IAD completes an incident report 

that is reviewed by the OIG’s Investigations Division. If the OIG declines 

to investigate, the case is referred back to ATF. The allegation is 

reviewed by IAD managers and forwarded to the Assistant Director, 

Office of Professional Responsibility and Security Operations, with a 

recommendation to have either the IAD or management investigate the 

allegation. Recommendations are based on the nature of the allegation, 

109
 
 

 

 

 

 

 

 

 

 

totality of the circumstances, and potential applicable penalties. The 

IAD’s current policy of evaluation has worked well, and ATF recommends 

no further changes. 

On March 16, 2015, ATF provided additional information stating 

that it is ATF’s current policy for the IAD to investigate credible 

allegations of sexual misconduct and sexual harassment. ATF noted that 

it plans to memorialize this policy into the IAD’s order that is currently 

being drafted. 

OIG Analysis: ATF’s actions are responsive to this 

recommendation. By June 30, 2015, please provide a copy of the new 

IAD order memorializing ATF’s policy to have IAD investigate credible 

allegations of sexual misconduct and sexual harassment. 

Recommendation 4: All four law enforcement components should use 

the offense categories specifically designed to address sexual misconduct 

and sexual harassment, and revise their tables if they are inadequate or 

otherwise deter the use of such categories. 

Status: Resolved. 

ATF Response: ATF concurred with this recommendation and 

stated that it always used the offense category from the ATF Guide to 

Offenses and Penalties (Guide) that is deemed to be the most appropriate 

for the case at hand. In some instances, an offense category that is not 

listed in the guide may be used if no existing offense category is deemed 

suitable. The selection of the offense category is based on many factors, 

including, most significantly, the evidence that is available to prove the 

elements of each possible charge. The approvable offense category that 

is most appropriate is used to propose disciplinary action. Further, ATF 

will review its table of penalties and add categories for the solicitation of 

prostitutes, inappropriate workplace relationships, and a general 

category for sexual misconduct in accordance with any guidance issued 

by the Department. 

OIG Analysis: ATF’s actions are responsive to this 

recommendation. By June 30, 2015, please provide information about 

any changes to the table of penalties related to sexual misconduct. The 

OIG believes that ATF should construct its offense table in such a way 

that does not require using offense categories that are not included in 

ATF’s table of penalties. 

Recommendation 7: All four law enforcement components, in 

coordination with ODAG, should acquire and implement technology and 

establish procedures to effectively preserve text messages and images for 

110
 
 

 

 

 

 

 

 

a reasonable period of time, and components should make this 

information available to misconduct investigators and, as appropriate, for 

discovery purposes. 

Status: Closed. 

ATF Response: ATF deferred to the ODAG’s response to this 

recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for ATF. 

Recommendation 8: All four law enforcement components, in 

coordination with ODAG, should take concrete steps to acquire and 

implement technology to be able to, as appropriate in the circumstances, 

proactively monitor text message and image data for potential 

misconduct. 

Status: Closed. 

ATF Response: The ATF deferred to the ODAG’s response to this 

recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for ATF. 

111
 
APPENDIX 11: THE DRUG ENFORCEMENT ADMINISTRATION’S 

RESPONSE TO THE DRAFT REPORT 

U. S. Department of Justice 

Drug Enforcement Administration 

www.dea.gov Washington. D.C. 20537 

MAR 1 3 2015 

MEMORANDUM 

TO: Nina S. Pell etier 

Assislant Inspector General 

Evaluations and Inspections 

Office of the Inspector Genera l 

FROM: ~~~ Acting Deputy 

~ Chief Inspector 

Office of Inspections 

SUBJECT:DEA's Response 10 the O IG Draft Report: "The Handling of Sexual Harassment and 

Misconduct Allegations by the Departmellf 's Law E1lforcement Components" 

The Drug Enforcement Admi nistration (DEA) has reviewed the Department of Justice (DOJ) 

Office of the Inspector General 's (OIG) Draft Report entit led, The Halldlillg of Sexual Harassmenr 

and Misconduct Allegatiolls by fh e Departmenr's Law Enforcement Componems." DEA 

acknowledges DIG 's efforts in conducting a review to assess how the DOl's four law enforcemem 

components respond to sexual misconduct and harassment allegations made against their employees. 

The OIG indicated in its report that in 96% of DEA cases reviewed for this evaluation. DEA's 

Office of Professional Responsibility (OPR) fu lly investigated all reported allegations of misconduct 

and did not refer matters back to local supervisors unless the matter reported was clearly a 

managemem or perfonnance-related issue. However, DEA noted that OIG focused the DEA portion 

of this report on the 3% of cases that, in their opin ion. DEA could have investigated the allegations 

more thoroughly. 

The investigation o f allegat ions of misconduct is the primary mission of the OPR and OPR 

inspectors are afforded specific authori ties to execute this mission. DEA has established criteria for 

the intake and investigations o f allegations and investigates all misconduct allegations. DEA did a 

second review o f the cases that OIG reviewed to determine if OPR had appropriately and thoroughly 

investigated these allegations. It was found through this review that the investigations were 

investigated properly through DEA 's disciplinary process for related misconduct. 

112
 
Nina S. Pelletier, Assistant inspeclOr General Page 2 

The OIG makes eight recommendations in the report in which six recommendations are directed 

to the components. Below are DEA's responses to the recommendations. 

I. All four law enforcement components should ensure that supervisors and manage rs 

report all allegations of sexual misconduct and sexual harassment to headquarters, and 

they should consider ensuring compliance with this requirement by including il in their 

performance standards so as to subject supervisors and managers to possible discipline 

for failing to report allegations. 

o EA Response 

DEA concurs with the recommendation. On October 22. 20 14. the DEA AdministralOr issued 

a memorandum entitled "Cont/uct of DEA Employees." This memorandum was intended to 

address specific areas of misconduct where the violations can seriously impact the integrity of 

DEA. Such areas include discussion of Off-Duty Misconduct: Failure to Exercise Proper 

Supervision: Sexual Harassment. Discrimination. and Retaliation: Improper Relationships with 

Cooperating Individuals. Sources of Information. and others. 

DEA believes this memorandum ensures that supervisors and managers, as well as employees 

are aware of their responsibi lities concerning misconduct and that appropriate measures 

through the discipl inary process wi ll be taken once a report of misconduct is received. 

In addition, all DEA employees are required to certify on an annual basis that they have 

reviewed and understand the DEA Standards of Conduct. DEA 's Standa rds of Conduci ensure 

that employees understand that they are held to a high standard of honesty and integrity and 

any lapses from that standard can destroy the future effecti veness of employees and harm 

DEA's credibility with the public. Not adhering to the Standards of Conduct can result in 

disciplinary actions for DEA employees. 

Based upon this information. DEA requests closure of this recommendation. 

2. ATF, DEA, and USMS should ensure that all non-frivolous sexual harassment and sexual 

misconduct allegations are referred to their respective security personnel to determine if 

the misconduct raises concerns about the employee's continued eligibility Lo hold a 

security clearance, and to determine whether the misconduct presents security risks for 

the component. 

OEA Response 

DEA concurs with the recommendation. On November 17,20 14. DEA issued a memorandum 

and implemented new procedures 10 ensure systematic coordination between OPR and the 

Office of Security Programs (IS) when misconduct allegations are such thal an assessment to 

determine whether an employee's security clearance should be maintained. 

OPR aJso added an additional block of training to the OPR Orientation training course 10 

113
 
Nina S. Pelletier, Assistant Inspector General Page 3 

ensure that all OPR personnel are full y aware of the Adjudicative Guidelines and when 10 

report a security clearance issue 10 IS. 

OPR also took further steps and added an element in their quarterly Complaint/Statistics 

(COMP/STAT) meetings. This new element incorporates making specific consideration of 

each investigation 10 determine if notification 10 IS regarding an ongoing in vestigation is 

warranted. 

Based on this information, DEA requests closure of this recommendation. 

3. The components should have and follow clear and consistent criteria for determining 

whether an allegation should be investigated at headquarters or should be referred back 

to the originating office to be handled as a management maUer. 

DEA Response 

DEA concurs with the recommendation. OIG acknowledged on page 34 of this report that 

DEA has establi shed clear and consistent criteria 10 determine whether an allegat ion should be 

investigated at headquarters or referred back to the originating offi ce 10 handle as a 

management matter. The DEA aPR is responsible for the intake and investigation of all 

misconduct allegations in which the DEA Chief Inspector (IG) and the OPR Deputy Ch ief 

Inspector (DCl), delegate, assign, direct, coord inate, and review for sufficiency all 

investigations of employee misconduct. Matters concerning allegations of criminal conduct 

and egregious employee behavior which subvert the mission of the Agency are inves tigated by 

aPR in all cases. 

Based on this information, DEA reques ts closure of this recommendation. 

4. All four law enforcement components should use the offense categories specifically 

designed to address sexual misconduct and sexual harassment, and revise their tables if 

they are inadequate or otherwise deter the use of such categories. 

DEA Response 

DEA concurs with the recommendation. The DEA Disci plinary Offenses and Penahies Guide 

are intended 10 provide information and guidance concern ing the range of penalty thaL may 

resu lt from a particul ar type of misconduct. The Guide is nOI intended to set forth specific 

charges but 10 ensure that employees are charged consistently as DEA can only charge the 

misconduct it can prove by a preponderance of the evidence. 

Therefore. DEA will examine and evaluate the offense categories specifically designed 10 

address sex ual misconduct and sex ual harassment. and revise the table if they are inadequate or 

otherwise deter the usc of such misconduc t categories. 

114
 
Ni na S. Pelletier, Assistant Inspector General Page 4 

7. All four law enforcement components, in coordination with ODAG, should acquire and 

implement technology and establish procedures to effectively preserve text messages and 

images for a reasonable period of time, and components should make this information 

available to misconduct investigators and, as appropriate, for discovery purposes. 

DEA Response 

The DEA will defer to the Office of the Deputy Attorney General's (ODAG) response to this 

recommendation. 

Based on the ODAG's response, DEA requests closure of this recommendation. 

8. All four law enforcement components, in coordination with ODAG, should take concrete 

steps to acquire and implement technology 10 be able to, as appropriate in the 

circumstances, proactively monitor text message and image data for potential 

misconduct. 

DEA Response 

The DEA will defer to the ODAG's response to this recommendation. 

Based on the ODAG's response, DEA requests closure of this recommendation. 

If you have any questions regarding this response, please contact the Audit Liai son Team, on 

202-307-8200. 

115
 
 

 

APPENDIX 12: OIG ANALYSIS OF THE DRUG ENFORCEMENT 

ADMINISTRATION’S RESPONSE
 

The Office of the Inspector General (OIG) provided a draft of this 

report to the Drug Enforcement Administration (DEA) for its comment. 

The DEA’s response is included in Appendix 11 of this report. The OIG 

analysis of the DEA’s response and actions necessary to close the 

recommendations are discussed below. 

The DEA provided additional comments regarding the OIG’s 

conclusion that there were instances where the OIG believed that the 

DEA could have investigated some allegations more thoroughly. The 

DEA stated that the OIG indicated that in 96 percent of the DEA cases 

reviewed, the DEA Office of Professional Responsibility (OPR) fully 

investigated all reported allegations of misconduct and did not refer the 

matters back to local supervisors unless the matter was clearly a 

management or performance-related issue. The DEA stated that 

investigation of misconduct allegations is the primary mission of the OPR 

and its inspectors are afforded specific authorities to execute this 

mission. Further, DEA has established criteria for the intake and 

investigation of misconduct allegations and investigates all of these 

allegations. The DEA stated that it performed a second review of the 

cases cited by the OIG to determine if the OPR appropriately and 

thoroughly investigated the allegations. The OPR found through its 

second review that the allegations were investigated properly through the 

DEA’s disciplinary process for related misconduct. 

As noted in the report, the OIG recognizes that the DEA fully 

investigated most allegations of sexual misconduct. However, two of the 

allegations we believe were not fully investigated involved the solicitation 

of prostitutes. As a result, we believe that the lack of a full investigation 

was noteworthy. 

Based on the OPR’s comments and additional analysis, the OIG 

again reviewed the cases. However, we still conclude that based on the 

information contained in the case files, interviews with DEA personnel, 

and additional information provided by the OPR, the cases were not fully 

investigated and the matters were closed prematurely. 

Recommendation 1: All four law enforcement components should 

ensure that supervisors and managers report all allegations of sexual 

misconduct and sexual harassment to headquarters, and they should 

consider ensuring compliance with this requirement by including it in 

their performance standards so as to subject supervisors and managers 

to possible discipline for failing to report allegations. 

116
 
 

 

 

 

 

 

 

 

Status: Resolved. 

DEA Response: The DEA concurred with the recommendation 

and stated that on October 22, 2014, the DEA Administrator issued a 

memorandum entitled “Conduct of DEA Employees.” The intent of the 

memorandum was to address specific areas of misconduct violations 

which can seriously impact DEA’s integrity. The areas discussed include 

off-duty misconduct; failure to exercise proper supervision; sexual 

harassment, discrimination, and retaliation; and improper relationships 

with cooperating individuals, sources of information, and others. DEA 

provided a copy of the October 22, 2014, memorandum. DEA believes 

that this memorandum will ensure that supervisors, managers, and 

employees are aware of their responsibilities concerning misconduct and 

that appropriate measures will be taken once a report is received. 

In addition, all DEA employees are required to annually certify that 

they have reviewed and understood the DEA Standards of Conduct. DEA 

stated that its Standards of Conduct ensure that employees understand 

that they are held to a high standard of honesty and integrity. Any 

lapses from that standard could destroy the future effectiveness of DEA 

employees and harm DEA’s credibility with the public. Furthermore, not 

adhering to the Standards of Conduct can result in disciplinary actions 

for DEA employees. 

OIG Analysis: The DEA’s actions are responsive to this 

recommendation. By June 30, 2015, please provide a copy of the annual 

certification form completed by DEA employees indicating that they have 

reviewed and understood the DEA Standards of Conduct. In addition, 

please provide copies of any other actions DEA has taken to ensure that 

managers and supervisors report all allegations of sexual misconduct 

and sexual harassment to DEA headquarters and to reiterate that they 

are subject to possible discipline for failing to report these types of 

allegations. 

Recommendation 2: ATF, DEA, and USMS should ensure that all nonfrivolous sexual harassment and sexual misconduct allegations are 

referred to their respective security personnel to determine if the 

misconduct raises concerns about the employee’s continued eligibility to 

hold a security clearance, and to determine whether the misconduct 

presents security risks for the component. 

Status: Resolved. 

DEA Response: The DEA concurred with this recommendation. 

On November 17, 2014, the DEA issued a memorandum and 

implemented new procedures to ensure systematic coordination between 

117
 
 

 

 

 

the Office of Professional Responsibility (OPR) and the Office of Security 

Programs (IS) when misconduct allegations are such that it warrants an 

assessment to determine whether an employee’s security clearance 

should be maintained. The DEA provided a copy of the November 17, 

2014, memorandum. In addition, the OPR added a block of training to 

the OPR Orientation training course to ensure that OPR personnel are 

fully aware of the Adjudicative Guidelines and when to report a security 

clearance issue to IS. Further, the OPR took steps and added an element 

to its quarterly Complaint/Statistics (COMPT/STAT) meetings 

incorporating specific consideration of each investigation to determine if 

whether notification to the IS regarding an investigation is warranted. 

OIG Analysis: The DEA’s actions are responsive to this 

recommendation. By June 30, 2015, please provide a description of the 

new procedures in place to ensure the systematic coordination between 

the OPR and the IS regarding assessment of security clearances involving 

allegations of misconduct. In addition, please provide a copy of the 

training materials used for the OPR training course and an example of 

how the quarterly COMP/STAT meetings consider whether an ongoing 

investigation requires notification to the IS. 

Recommendation 3: The components should have and follow clear and 

consistent criteria for determining whether an allegation should be 

investigated at headquarters or should be referred back to the originating 

office to be handled as a management matter. 

Status: Closed. 

DEA Response: The DEA concurred with the recommendation. 

The DEA stated that in the report, the OIG acknowledged that DEA had 

established clear and consistent criteria to determine whether an 

allegation should be investigated at headquarters or referred back to the 

originating office to handle as a management matter. The DEA OPR is 

responsible for the intake and investigation of all misconduct allegations, 

and the DEA Chief Inspector and the OPR Deputy Chief Inspector 

delegate, assign, direct, coordinate, and review for sufficiency all 

investigations of employee misconduct. Matters concerning allegations of 

criminal conduct and egregious employee behavior that subvert the DEA 

mission are investigated by the OPR in all cases. 

OIG Analysis: The DEA’s actions are responsive to this 

recommendation. This recommendation is closed. 

Recommendation 4: All four law enforcement components should use 

the offense categories specifically designed to address sexual misconduct 

118
 
 

 

 

 

 

 

 

 

and sexual harassment, and revise their tables if they are inadequate or 

otherwise deter the use of such categories. 

Status: Resolved. 

DEA Response: The DEA concurred with this recommendation 

and stated that the DEA Disciplinary Offenses and Penalties Guide 

(Guide) is intended to provide information and guidance about the range 

of penalties that may result from a particular type of misconduct. The 

Guide is not intended to set forth specific charges, but to ensure that 

employees are charged consistently, as DEA can charge the misconduct 

only if it can prove by a preponderance of the evidence. Therefore, the 

DEA will examine and evaluate the offense categories specifically 

designed to address sexual misconduct and sexual harassment, and 

revise the tables if they are inadequate or otherwise deter the use of such 

misconduct categories. 

OIG Analysis: The DEA’s actions are responsive to this 

recommendation. By June 30, 2015, please provide a status on whether 

the DEA has made any revisions to its offense categories related to 

sexual misconduct and sexual harassment to address any inadequacies 

or obstacles to using the misconduct category. In addition, please 

provide information indicating that specific sexual misconduct and 

sexual harassment charges are being used as appropriate. 

Recommendation 7: All four law enforcement components, in 

coordination with ODAG, should acquire and implement technology and 

establish procedures to effectively preserve text messages and images for 

a reasonable period of time, and components should make this 

information available to misconduct investigators and, as appropriate, for 

discovery purposes. 

Status: Closed. 

DEA Response: The DEA deferred to the ODAG’s response to this 

recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for DEA. 

Recommendation 8: All four law enforcement components, in 

coordination with ODAG, should take concrete steps to acquire and 

implement technology to be able to, as appropriate in the circumstances, 

proactively monitor text message and image data for potential 

misconduct. 

119
 
 

 

 

Status: Closed. 

DEA Response: The DEA deferred to the ODAG’s response to this 

recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for DEA. 

120
 
., 

APPENDIX 13: THE FEDERAL BUREAU OF INVESTIGATION’S 

RESPONSE TO THE DRAFT REPORT 

121
 

U.S. Department of Justice 

Federal Bureau of Investigation 

Washington, D. C. 20535-0001 

March 13, 2015 

The Honorable Michael E. Horowitz 

Inspector General 

Office of the Inspector General 

U.S. Department of Justice 

950 Pennsylvania Avenue, N.W. 

Washington, DC 20530 

Dear Mr. Horowitz: 

The Federal Bureau of Investigation (FBI) appreciates the opportunity to review and 

respond to your office's report entitled, The Handling o/Sexual Harassment and Misconduct 

Allegations by the Department 's Law Enforcement Components. " 

We are pleased you found with respect to the coordination between internal affairs 

offices and the offices that ensure employees meet the requirements to hold security clearances, 

the FBI has taken a "better approach to addressing potential security issues," and "refers all 

misconduct allegations" to their Security Division. Notably, you detennined this approach to be 

a "best practice" amongst the components. 

We appreciate your insights into improving the handling of sexual harassment and 

misconduct allegations. In that regard, we concur with each of your recommendations directed 

towards the FBI. 

Should you have any questions, please feel free to contact me. We greatly appreciate the 

professionalism of your audit staff throughout this matter. 

Sincerely, 

Nancy McNamara 

Assistant Director 

Inspection Division 
The Handling of Sexual Harass ment and Mis conduct Allegations by the 

Department's Law Enforcement Compone nts 

FBI Responses to Recommendations 

1. All four law enforcem ent compone n ts s hould ensure that supervisors 

and managers report all allegations of sexual m isconduct and sexual 

haraasm ent to headquarters, a nd they ahould conside r enaurlng 

c ompliance with t his r equirement by Including it in their performance 

atandards so as to subject s u pervisors and m anage rs to posslble dlscipllne 

for failing to r eport allegations, 

FBI Response: Concur · The FBI will remind all supervisors and managers tJlal 

a ll allegations of sexual misconducl and sexual hamssmenl should be reported 

t.o headquarters. To ensure complianre, the FBI will also consider whether this 

requirement should be included in performance standards so as t.o subject 

supelVisors and managers t.o possible discipline for failing to report allegations. 

3, The c omponents s ho\dd have and follow clear and cou.sistent criteria for 

d et e rmining whethe r a ll. a llegation s hould be inveati§llted at h eadquarters 

or s hould be r e fe lTed back to the originating omce to be handled as a 

managem e nt m atte r, 

FBI Response: Concur · The FBI will remind all employees Witilin the ln lemal 

Investigations Section that w e FBI's criteria regarding the opening of 

investigations at headquarters must be adhered to when evaluating whether an 

a llegation shoukl be investigated at headquarters or referred back to Ule 

originating office t.o be hand led as a managemenl maltef. 

4. All four law enforce m ent componen ts s hould u se the offe n se eategorles 

s pecific ally designed to address sexual m isconduct and sexual harassment, 

a nd r evise their t ables If the y are inadequa t e or othe rwise det e r the u se of 

such c ategories. 

FBI Res ponse: Concur · The FBI will usc the offense categories specifieally 

designed to address sexual miscond uc t and sexual harassment as a llllrUllriate 

under the totality of the factual circumstances that present in each instance. 

FBI eoneurs with ODAG r esponses r e : 17 and ' 8. 

122
 
 

 

 

 

 

APPENDIX 14: OIG ANALYSIS OF THE FEDERAL BUREAU 

OF INVESTIGATION’S RESPONSE
 

The Office of the Inspector General (OIG) provided a draft of this 

report to the Federal Bureau of Investigation (FBI) for its comment. The 

FBI’s response is included in Appendix 13 of this report. The OIG 

analysis of the FBI’s response and actions necessary to close the 

recommendations are discussed below. 

Recommendation 1: All four law enforcement components should 

ensure that supervisors and managers report all allegations of sexual 

misconduct and sexual harassment to headquarters, and they should 

consider ensuring compliance with this requirement by including it in 

their performance standards so as to subject supervisors and managers 

to possible discipline for failing to report allegations. 

Status: Resolved. 

FBI Response: The FBI concurred with this recommendation and 

stated that the FBI will remind all supervisors and managers that all 

allegations of sexual misconduct and sexual harassment should be 

reported to headquarters. To ensure compliance, the FBI will also 

consider whether the requirement should be included in performance 

standards so as to subject supervisors and managers to possible 

discipline for failing to report allegations. 

OIG Analysis: The FBI’s actions are responsive to this 

recommendation. By June 30, 2015, please provide a status report on 

how the FBI will remind all supervisors and managers that all allegations 

of sexual misconduct and sexual harassment should be reported to 

headquarters. Also, please provide a status report as to whether the FBI 

has included a requirement in the performance standards of supervisors 

and managers about possible discipline for failing to report allegations. 

Recommendation 3: The components should have and follow clear and 

consistent criteria for determining whether an allegation should be 

investigated at headquarters or should be referred back to the originating 

office to be handled as a management matter. 

Status: Resolved. 

FBI Response: The FBI concurred with this recommendation and 

stated that it will remind all employees within the Internal Investigations 

Section that the FBI’s criteria regarding the opening of investigations at 

123
 
 

 

 

 

 

 

 

headquarters must be adhered to when evaluating whether an allegation 

should be investigated at headquarters or referred back to the originating 

office to be handled as a management matter. 

OIG Analysis: The FBI’s actions are responsive to the 

recommendation. By June 30, 2015, please provide a status report on 

how the FBI will remind Internal Investigations Section employees about 

adhering to the FBI’s criteria on evaluating whether an allegation should 

be investigated at headquarters or referred back to the originating office 

to be handled as a management matter. 

Recommendation 4: All four law enforcement components should use 

the offense categories specifically designed to address sexual misconduct 

and sexual harassment, and revise their tables if they are inadequate or 

otherwise deter the use of such categories. 

Status: Resolved. 

FBI Response: The FBI concurred with this recommendation and 

stated that the FBI will use the offense categories specifically designed to 

address sexual misconduct and sexual harassment as appropriate under 

the totality of the factual circumstances present in each instance. 

OIG Analysis: The FBI’s actions are responsive to this 

recommendation. By June 30, 2015, please provide information and 

data on the use of the offense categories specifically designed to address 

sexual misconduct and sexual harassment. 

Recommendation 7: All four law enforcement components, in 

coordination with ODAG, should acquire and implement technology and 

establish procedures to effectively preserve text messages and images for 

a reasonable period of time, and components should make this 

information available to misconduct investigators and, as appropriate, for 

discovery purposes. 

Status: Closed. 

FBI Response: The FBI concurred and deferred to the ODAG’s 

response to this recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for FBI. 

Recommendation 8: All four law enforcement components, in 

coordination with ODAG, should take concrete steps to acquire and 

implement technology to be able to, as appropriate in the circumstances, 

124
 
 

 

proactively monitor text message and image data for potential 

misconduct. 

Status: Closed. 

FBI Response: The FBI concurred and deferred to the ODAG’s 

response for this recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for FBI. 

125
 
APPENDIX 15: THE UNITED STATES MARSHALS SERVICE’S 

RESPONSE TO THE DRAFT REPORT 

126
 

U.S. Department of Justice 

Uniled Sinies Marshals Service 

Office of the Director 

Wasliing/oll. DC 20530·/{)()() 

March 16.2015 

MEMORANDUM TO: Nina S. Pelletier 

Assistant Inspector General 

Evaluation and inspe<:tions Division 

Office of the Inspe<:tor General 

RO ~ David Ha~low .?l fbJ. J A 0 

lV -- Deputy D1 rector ~ ( V~_ 

SUBJECT: Response to Draft Audil Report: Thl: Handling o/Sexual 

HarasSlllellllllld Mi.Ycolldlll·/ AI/ega/ions by /he Dcparllllell/ .~. Law 

£1I/orCl:lllcll/ COlllf)(}lIel1/)', Assignment No. A·20l3·004 

This is in response to correspondence from the Office of the inspe<:tor General (O[G) 

requesting comment on the recommendations ao;sociated with the subject draft audit report. 

Actions planned by USMS with respcctto DIG's recommendations to the DOJ 

components are outlined in the allaehed response. 

Should you have any questions or concerns regarding this response, please contact 

Isabel Howell. Audit Liaison, at 202·307·9744. 

Attachment 

cc: Richard Theis 

Director, Audit Liaison Group 

Intern:;!] Review and Ev:;! lualion Office 

Justice Management Division 

Isabel Howell 

External Audit Liaison 

United States Marshals Service 
USMS Response to OIG Draft Report 

The HandliDg ofSuual Hanssment and Misconduct Allegations hy the 

Department's Law Eaforcemeat Componeats WorkiDg in Foreign Countries 

Assignment No. A-I013-004 

Rerommendation 1: All four law enforcement components should ensure that supervisors 

and maDagers report all allegations of se:lual misconduct and sexual haraument to 

headquarters, aDd they should consider ensuring compliaDce with this requirement by 

including it in their performance standards so as to subject supervisors and managers to 

posslhle discipliDe for failing to report allegations. 

Response (Concur): Existing USMS policy requires mandatory reporting of employee 

misconduct. The Office of Professional Responsibility (OPR) will review and modify policy, as 

necessary, to ensure policy adequately encompasses sexual misconduct/sexual harassment. 

USMS currently enforces compliance through the performance standards of supervisors and 

managers. Under the performance element "Accountability for DiversitylPeopleIWorkforce," 

managers are required to take "appropriate action to address promptly any misconduct to include 

allegations of harassment by employees." 

Recommeadadon 2: ATF, DEA. and USMS should eDsure that aU non-friyolous SeJ:ual 

haras.sment and seIual misconduct allegations are referred to tbeir respecfiYe s«urity 

penonnelto determine if the misconduct raises concerns about the employee's continued 

eligibility to bold a security clearance, and to determiDe whether the misconduct presents 

security risks for tbe compoaent. 

Response (Concur): OPR currently refers ali non-frivolous, substantiated allegations to the 

Tactical Operations Division (TOO) Office ofSccurity Programs for appropriate review. OPR 

will review and modify policy, as necessary, to ensure policy and procedure adequately 

encompasses sexual misconduct/sexual harassment allegation referrals. 

Rewmmendation 3: The compoDents should han and follow clear and consistent criteria 

for determining whether an allegation should be investigated at beadquarters or should be 

referred back to the originating office to be bandied as a management matter. 

Response (Concur): OPR will review and modify policy, as necessary, to ensure policy outlines 

the criteria used when making management referrals. 

Recommendation 4: All four law enforcement components should use the offense 

categories specifically designed to address sexual miscoaduct aad sexual barassment, and 

revise their tables iftbey are inadequate or otberwise deter tbe use of sucb categories. 

Response (Concur): USMS concurs without further comment at this time. 

127
 
Recommendation 7: All four law enforcement componeno, in coordination wltb ODAG, 

3bould acquire and implement teebnology and establisb procedures to effeetively preserve 

tut masages and images for a reasonable period of time, and components should make 

tbis iaformarion available to misconduct investigaton a ud, as appropriate, for discovery 

purpoKS. 

Response (Concur): The USMS currently preserves message content, but is Wl8ble to preserve 

images. Per the response from the Office of the Deputy Attorney General (ODAG), we wilt 

work to implement cost-effective technological solutions developed by the Department to meet 

this need. 

RecommendarioD 8: All four law enforcement componeno, in coordination with ODAG, 

should take concrete steps to acquire and implemeat teehnology to be able to, as 

appropriate ill tbe circumstances, proactively monitor tel.t message and image data for 

po~tialmisconducL 

Response (Concur): The USMS is currently wtable to proactively monitor text messages sent by 

employees. Due to the nature of our mission, a part of which involves investigating sex 

offenders. current technology would produce many false positive results. Per the response from 

ODAG, however, we will work with the Departrnentto study the feasibility of acquiring and 

implementing cost-effective technology to be able to, as appropriate, proactively monitor text 

message and image data for potential misconduct. 

128
 
 

 

 

APPENDIX 16: OIG ANALYSIS OF THE UNITED STATES 

MARSHALS SERVICE’S RESPONSE
 

The Office of the Inspector General (OIG) provided a draft of this 

report to the United States Marshals Service (USMS) for its comment. 

USMS’s response is included in Appendix 15 of this report. The OIG 

analysis of the USMS’s response and actions necessary to close the 

recommendations are discussed below. 

Recommendation 1: All four law enforcement components should 

ensure that supervisors and managers report all allegations of sexual 

misconduct and sexual harassment to headquarters, and they should 

consider ensuring compliance with this requirement by including it in 

their performance standards so as to subject supervisors and managers 

to possible discipline for failing to report allegations. 

Status: Resolved. 

USMS Response: The USMS concurred with this recommendation 

and stated that existing USMS policy requires mandatory reporting of 

employee misconduct. The Office of Professional Responsibility (OPR) 

will review and modify policy as necessary to ensure the policy 

adequately encompasses sexual misconduct and sexual harassment. 

USMS also stated that it currently enforces compliance through the 

performance standards of supervisors and managers. Under the 

performance element “Accountability for Diversity/People/Workforce,” 

managers are required to take “appropriate action to address promptly 

any misconduct to include allegations of harassment by employees.” 

OIG Analysis: The USMS’s actions are responsive to this 

recommendation. By June 30, 2015, please provide copies of the USMS 

policy requiring mandatory reporting of employee misconduct and any 

modifications of this policy. Please also provide copies of performance 

standards for supervisors and managers, requiring that they take 

appropriate action to address promptly any misconduct, to include 

allegations of harassment by employees. 

Recommendation 2: ATF, DEA, and USMS should ensure that all nonfrivolous sexual harassment and sexual misconduct allegations are 

referred to their respective security personnel to determine if the 

misconduct raises concerns about the employee’s continued eligibility to 

hold a security clearance, and to determine whether the misconduct 

presents security risks for the component. 

129
 
 

 

 

 

 

 

 

 

Status: Resolved. 

USMS Response: The USMS concurred with the recommendation 

and stated that it currently refers all non-frivolous, substantiated 

allegations to the Tactical Operations Division (TOD) Office of Security 

Programs for appropriate review. OPR will review and modify policy, as 

necessary, to ensure policy and procedure adequately encompass sexual 

misconduct and sexual harassment allegation referrals. 

OIG Analysis: The USMS’s actions are responsive to this 

recommendation. By June 30, 2015, please provide copies of the USMS 

policy on referring non-frivolous, substantiated allegations and any 

modifications to the policy to ensure that USMS policy and procedure 

adequately encompass sexual misconduct and sexual harassment 

allegation referrals. 

Recommendation 3: The components should have and follow clear and 

consistent criteria for determining whether an allegation should be 

investigated at headquarters or should be referred back to the originating 

office to be handled as a management matter. 

Status: Resolved. 

USMS Response: The USMS concurred with the recommendation 

and stated that it will review and modify policy, as necessary, to ensure 

policy outlines the criteria used when making management referrals. 

OIG Analysis: The USMS’s actions are responsive to this 

recommendation. By June 30, 2015, please provide copies of the 

USMS’s policy, and any revisions to this policy, on determining whether 

an allegation should be investigated and the criteria used when making 

management referrals. 

Recommendation 4: All four law enforcement components should use 

the offense categories specifically designed to address sexual misconduct 

and sexual harassment, and revise their tables if they are inadequate or 

otherwise deter the use of such categories. 

Status: Resolved. 

USMS Response: The USMS concurred with this 

recommendation. On March 17, 2015, the USMS provided additional 

information stating that the USMS will endeavor to charge these offenses 

using the specific categories in its existing Table of Offenses and 

Penalties. The USMS will also review its Table of Offenses and Penalties 

130
 
 

 

 

 

 

to determine its adequacy for addressing specific types of sexual 

misconduct. 

OIG Analysis: The USMS’s actions are responsive to this 

recommendation. By June 30, 2015, please provide information on the 

USMS’s review of its Table of Offenses and Penalties to determine its 

adequacy for addressing specific types of sexual misconduct. 

Recommendation 7: All four law enforcement components, in 

coordination with ODAG, should acquire and implement technology and 

establish procedures to effectively preserve text messages and images for 

a reasonable period of time, and components should make this 

information available to misconduct investigators and, as appropriate, for 

discovery purposes. 

Status: Closed. 

FBI Response: The USMS concurred and deferred to the ODAG’s 

response to this recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for USMS. 

Recommendation 8: All four law enforcement components, in 

coordination with ODAG, should take concrete steps to acquire and 

implement technology to be able to, as appropriate in the circumstances, 

proactively monitor text message and image data for potential 

misconduct. 

Status: Closed. 

FBI Response: The USMS concurred and deferred to the ODAG’s 

response for this recommendation. 

OIG Analysis: The OIG will work with the ODAG regarding this 

recommendation. This recommendation is closed for USMS. 

131
 
TIle Department of Justice Office of the Inspector General 

(DOJ OIG) is a statutorily created independent entity 

whose mission is to detect and deter waste, fraud, 

abuse, and misconduct in the Department of Justice, and 

to promote economy and efficiency in the Department's 

operations. Information may be reported to the DOJ 

OIG's hotline at www.justice.gov/oig/llOtline or 

(800) 869-4499. 

Office of the Inspector General 

U.S. Department of Justice 

www.justice.gov!oig