U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division

Review of the 

Federal Bureau of Prisons’ 

Disciplinary System 

Report Number I-2004-008

September 2004
 

U.S. Department of Justice i

Office of the Inspector General 

Evaluation and Inspections Division 

EXECUTIVE DIGEST 

The Department of Justice’s (Department) Office of the Inspector 

General (OIG) conducted this review to assess the Federal Bureau of 

Prisons’ (BOP) disciplinary system. Specifically, we reviewed whether BOP 

employees properly reported misconduct; whether investigations were 

thorough; and whether disciplinary actions were reasonable, consistent, and 

timely. We examined data for BOP employee misconduct cases opened or 

closed in fiscal year (FY) 2003, reviewed files related to a sample of 85 

randomly selected misconduct cases, interviewed BOP officials, and visited 

selected institutions. We also conducted e-mail surveys to collect views on 

the agency’s disciplinary system from BOP deciding officials, investigators, 

and employees. 

The BOP’s disciplinary system is divided into two distinct phases: the 

investigative phase, when the BOP investigates alleged employee 

misconduct, and the adjudicative phase, when discipline is proposed and 

imposed for misconduct allegations that were sustained by the 

investigation. The BOP’s Office of Internal Affairs (OIA) in the Executive 

Office of the Director oversees the investigative phase. OIA investigators, as 

well as investigators assigned to the institutions, conduct the investigations. 

The Labor Management Relations (LMR) branch in the Human Resources 

Management Division oversees the adjudicative phase. 

RESULTS IN BRIEF 

 

We found that the investigative phase of the disciplinary process was 

thorough and the case files we reviewed were well documented. We also 

found no significant differences in how BOP treated employees of different 

races, genders, job series, or grade levels during the disciplinary process. 

 

However, we identified deficiencies in the BOP’s disciplinary system 

that prevent it from ensuring that disciplinary decisions are reasonable, 

consistent, and timely. We found the following deficiencies: the BOP does 

not require all cases with sustained allegations to be fully adjudicated; 

deciding officials often fail to document their reasons for mitigating 

disciplinary proposals; the independence of the investigative and 

adjudicative phases of the disciplinary process can be compromised because 

the Chief Executive Officers (CEOs)1 have a role in both phases; the BOP 

 1 According to BOP Program Statement 3420.09, Standards of Employee Conduct, 

the CEO is defined as the Warden at institutions, the Director at staff training centers, the 

Community Corrections Manager at community corrections offices, the Regional (cont’d) 
 

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Office of the Inspector General 

Evaluation and Inspections Division 

does not ensure that BOP employees receive similar penalties for similar 

infractions BOP-wide; the BOP does not have written timeliness standards 

for processing misconduct allegations; the BOP does not monitor the 

reasonableness, consistency, and timeliness of disciplinary decisions; and 

BOP employees do not report all employee misconduct. By correcting the 

issues identified above and detailed in the report, the BOP can better ensure 

that its disciplinary decisions are reasonable, consistent, and timely. 

BOP investigations of employee misconduct appeared thorough. 

In reviewing a random sample of 85 investigative case files, an OIG 

Special Agent concluded that the investigations appeared thorough and the 

files contained the information necessary to understand the actions taken 

and the conclusions reached during the investigative phase. Our surveys 

also indicated that the BOP’s OIA investigators, deciding officials, and 

employees generally rated the investigative reports highly for their quality. 

BOP disciplinary decisions sometimes did not appear to be reasonable. 

Of 92 subjects with sustained allegations in our sample, the CEOs 

unilaterally took informal or no disciplinary action for 20 of these subjects 

charged with serious misconduct without fully adjudicating the cases or 

documenting their reasons for taking these actions. By bypassing the full 

adjudicative phase, the CEOs failed to involve other entities with review 

responsibilities. Given the serious nature of the sustained misconduct in 

these 20 cases, coupled with the minor penalties imposed and the absence 

of documented reasons for the decisions, the outcomes did not appear to be 

reasonable. 

In their role as deciding officials, the CEOs mitigated the proposed 

discipline but failed to adequately explain the reasons for the mitigation in 

the decision letter for 36 of 92 subjects with sustained allegations. Both 

federal regulations and internal BOP guidelines state that deciding officials 

must provide reasons for mitigating penalties in the decision letter. 

Because of the lack of adequate documentation explaining why the proposed 

discipline was mitigated, the penalty imposed did not appear reasonable in 

relationship to the proposed discipline. 

In addition, the CEOs can influence local investigative reports for 

cases in which they also will act as the deciding officials, thereby creating 

the potential for outcomes that are not reasonable. In other Department 

 

Director at Regional Offices, and the Assistant Director of each division at the Central 

Office. 
 

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Evaluation and Inspections Division 

disciplinary systems we have reviewed, the deciding officials are not involved 

in the investigative phase. However, in the BOP, the CEOs have the dual 

responsibilities of reviewing and approving local investigations for 

misconduct cases in their institutions during the investigative phase and 

imposing discipline based on these investigations during the adjudicative 

phase. Because of the CEOs’ dual responsibilities, the independence of the 

investigative and adjudicative phases, which helps to ensure that 

disciplinary outcomes are reasonable, can be compromised. 

BOP guidance instructs CEOs to impose similar penalties for similar 

misconduct only at their current institution, which does not ensure 

that discipline is imposed consistently BOP-wide. 

An equitable disciplinary system should ensure that employees 

receive substantially similar discipline for similar misconduct under similar 

circumstances. However, BOP guidance states that CEOs, when acting as 

deciding officials, need to be consistent only with their own prior decisions 

at the same facility. LMR staff also told us that imposing consistent 

discipline is only necessary for the current CEO at each facility because that 

is all that is required for imposed discipline to be deemed defensible if the 

subject appeals or grieves the decision to a third party. Consequently, two 

similarly situated subjects who committed similar misconduct under similar 

circumstances at the same institution could receive different penalties 

because the subjects had different CEOs. Under current BOP rules, the 

CEOs at each of the BOP’s 113 institutions, 6 Regional Offices, 28 

community corrections offices, 2 staff training centers, and 1 Central Office 

may impose different discipline for similar misconduct and circumstances. 

 

BOP data did not indicate that the disciplinary process was affected by 

grade level, job series, gender, or race BOP-wide. 

We analyzed BOP data to determine whether certain job and 

demographic characteristics of the population – job series, grade level, 

gender, or race – affected the disciplinary process. The data did not indicate 

that these characteristics were a factor in the disciplinary process. We also 

attempted to determine the consistency of discipline imposed BOP-wide for 

similar charges in our sample of 85 cases, but our sample did not include a 

sufficient number of cases with similar charges and circumstances to 

perform this type of consistency analysis. 
 

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Evaluation and Inspections Division 

The BOP did not consistently report, investigate, and adjudicate 

employee misconduct cases in a timely manner. 

We found that the BOP did not report or process misconduct cases in 

a timely manner and that delays sometimes negatively affected the final 

discipline that was imposed. For example, our analysis showed that BOP 

management did not report 68 percent of serious misconduct allegations to 

the OIA within 24 hours, as required by BOP policy. The reporting time for 

these allegations averaged 16 days and, in one case, was 106 days. The 

OIA, in turn, did not report 23 percent of allegations to the OIG within the 

required time frames. 

We also found that the BOP has not established written standards for 

the timely investigation and adjudication of employee misconduct. While 

officials in the OIA and the LMR provided us with informal time frames, they 

did not measure the timeliness of their respective processes against these 

standards even though they collected time-related data. Our analysis of the 

85 case files showed that the average time for OIA investigators to complete 

their investigations was less than the OIA’s informal time frame of 90 days. 

However, local investigators assigned to the institutions took an average of 

103 days to complete the investigations, 43 days longer than the informal 

time frame of 60 days. 

In those cases in our sample that were adjudicated, disciplinary 

action cases (suspensions of 14 days or less) exceeded the informal time 

frame established by the LMR by an average of 27 days and adverse action 

cases (suspensions of more than 14 days, demotions, or removals) exceeded 

the time frame by an average of 20 days. Because the BOP did not monitor 

the timeliness of a case as it proceeded through the disciplinary system, it 

was unable to identify systemic causes for these delays. 

BOP employees did not report all employee misconduct as required. 

In our e-mail survey of BOP employees, almost 92 percent of the 

respondents said that they had read the BOP’s Standards of Employee 

Conduct and 96 percent said that they were aware of the BOP’s 

requirements for reporting employee misconduct. However, 41 percent of 

the respondents who said that they had witnessed employee misconduct 

stated that they did not always report this misconduct to the proper 

authorities. Sixty-six percent of the respondents reported that they did not 

believe that their fellow employees always reported misconduct either. 
 

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Office of the Inspector General 

Evaluation and Inspections Division 

Some BOP employees believed that the disciplinary system was not 

reasonable, consistent, or timely. 

In our e-mail survey of a random sample of BOP employees, 

74 percent of respondents who stated that they were aware of investigations 

that resulted in discipline believed that the discipline imposed was 

reasonable, while 26 percent found that the discipline imposed was not 

reasonable. In terms of consistency, almost 60 percent believed that 

employees were treated differently according to their job title or grade level. 

Forty-three percent believed that the gender or race of the subject affected 

the discipline imposed. BOP employees who commented that employees 

were treated differently generally stated that higher-graded staff, noncorrectional officers, white staff, or males received more favorable treatment 

than other BOP employees. Regarding timeliness, approximately 43 percent 

did not believe that misconduct investigations were handled in a timely 

manner, and 34 percent believed that the adjudication of discipline was not 

timely. Several employees commented on the negative effect that untimely 

resolution of an allegation of misconduct has on an employee’s ability to 

progress in his or her career, as well as on employee morale. 

RECOMMENDATIONS 

We make ten recommendations to help the BOP ensure that its 

disciplinary decisions are reasonable, consistent, and timely. The 

recommendations focus on ensuring that the investigative and adjudicative 

phases of the disciplinary system function independently and that sustained 

misconduct allegations are fully adjudicated; the reasons for mitigating 

discipline are adequately documented; BOP employees receive similar 

penalties for similar infractions BOP-wide; misconduct cases are 

investigated and adjudicated in a timely manner; and that the BOP develops 

controls to monitor disciplinary decisions for consistency throughout the 

BOP. 

We recommend that the BOP: 

1. Reinforce the existing policy that BOP employees report 

allegations of employee misconduct to the proper authorities as 

required. 

2. Require that CEOs forward cases with sustained allegations 

through the full adjudicative phase. 
 

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Evaluation and Inspections Division 

3. Ensure that when the deciding official mitigates the proposed 

discipline, the decision letter contains an adequate explanation 

of the reasons. 

4. Remove the CEOs from reviewing and approving investigative 

reports of employee misconduct for cases in which they will act 

as the deciding official by implementing an alternative review 

process that preserves the independence of the investigative 

and adjudicative phases. 

5. Reinforce the existing policy that all required documents be 

maintained in the disciplinary files. 

6. Develop procedures to ensure that discipline is imposed 

consistently BOP-wide, and review discipline for consistency 

across the agency periodically after these procedures are 

implemented. 

7. Reinforce the existing policy that CEOs report allegations of 

employee misconduct to the OIA within required time frames. 

8. Reinforce the existing policy that the OIA reports misconduct 

allegations to the OIG within required time frames. 

9. Establish written time guidelines for the investigative and 

adjudicative phases of the disciplinary system. 

10. Require that the BOP Program Review Division periodically 

review a sample of closed disciplinary case files to assess 

whether the disciplinary decisions were reasonable, consistent, 

and timely. 
 

U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division 

 

TABLE OF CONTENTS 

BACKGROUND .....................................................................................1

PURPOSE, SCOPE, AND METHODOLOGY............................................11

RESULTS OF THE REVIEW.................................................................14

 Investigations of Employee Misconduct........................................... 14

 Reasonableness of the Disciplinary System..................................... 18

 Consistency of the Disciplinary System .......................................... 28

 Timeliness of the Disciplinary System............................................. 36

CONCLUSION AND RECOMMENDATIONS ...........................................44

APPENDIX I: THE DOUGLAS FACTORS..............................................47

APPENDIX II: CONFIDENCE INTERVALS FOR EMPLOYEE SURVEY....49

APPENDIX III: BOP’S RESPONSE TO THE DRAFT REPORT ................51

APPENDIX IV: OIG ANALYSIS OF BOP’S RESPONSE ..........................56
 

U.S. Department of Justice 1

Office of the Inspector General 

Evaluation and Inspections Division 

 

BACKGROUND 

Federal laws and regulations governing the discipline of federal 

employees are found in the Civil Service Reform Act of 1978; Title 5, Code of 

Federal Regulations, Part 752, Adverse Actions; and 5 United States Code, 

Chapter 75, Section 7501-7504, 7511-7514. These laws and regulations 

establish the legal framework for federal agencies to address employee 

misconduct through disciplinary actions, such as suspensions, demotions, 

and removals. In addition to formal disciplinary action, agencies may also 

impose informal discipline, such as oral reprimands. According to Title 5, 

agencies may discipline employees “for such cause as will promote the 

efficiency of the service.” In other words, an agency can impose discipline 

when an employee’s misconduct interferes with the agency’s ability to carry 

out its mission.

Agencies establish disciplinary systems to maintain orderly and 

productive work environments by communicating to employees the conduct 

that is not acceptable. An agency’s table of offenses and penalties defines 

the actions that violate the standards of conduct and hinder the 

performance of its mission. The table of offenses also defines the range of 

discipline that the agency may impose when an employee commits 

misconduct. When an agency imposes discipline, it is conveying to the 

employee the need to recognize, correct, or improve substandard conduct. 

Independent investigative and adjudicative phases maintain checks 

and balances within a disciplinary system. An equitable disciplinary system 

provides reasonable, consistent, and timely discipline to all employees 

without regard to external factors such as an employee’s position, race, or 

gender. 

Federal agencies have discretion in determining disciplinary penalties; 

the only requirement is that the penalty be reasonable. To help determine 

reasonability, in a 1981 decision the Merit Systems Protection Board (MSPB) 

established 12 factors, known as the “Douglas factors” (see Appendix I for a 

description of the factors), for agency officials to consider when determining 

disciplinary actions.2 

 2 The MSPB is an independent, quasijudicial 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 (CSRA), Public Law 95-454. The CSRA, which became effective 

January 11, 1979, replaced the Civil Service Commission with three independent agencies: 

the Office of Personnel Management (OPM), which manages the federal work force; the 

Federal Labor Relations Authority (FLRA), which oversees federal labor- (cont’d) 
 

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Office of the Inspector General 

Evaluation and Inspections Division 

 

 The Douglas factors are used to either mitigate (reduce) or aggravate 

(increase) a proposed penalty when an employee commits an offense. For 

example, a long-term employee with no prior disciplinary history and an 

excellent performance record may receive a mitigated penalty compared with 

an employee committing the same offense who has been disciplined 

previously and has a poor performance record. 

Employees who are suspended for more than 14 days, demoted, or 

removed have the right to appeal to the MSPB. In the 1981 Douglas 

decision, the MSPB established its authority to mitigate agency-imposed 

penalties that it determines are “clearly excessive, disproportionate to the 

sustained charges, or arbitrary, capricious, or unreasonable.”3 The MSPB 

also stated that it would review penalties to determine whether the agency 

“exercised management discretion within tolerable limits of reasonableness” 

and modify penalties if it found that “the agency’s judgment clearly exceeded 

the limits of reasonableness.”4

Overview of BOP’s Disciplinary System 

The Federal Bureau of Prisons’ (BOP) disciplinary system consists of 

two distinct phases: the investigative phase, when the BOP investigates 

alleged employee misconduct, and the adjudicative phase, when discipline is 

proposed and imposed for sustained misconduct allegations. The BOP’s 

Office of Internal Affairs (OIA) in the Executive Office of the Director oversees 

the investigative phase. The Labor Management Relations (LMR) branch in 

the Human Resources Management Division oversees the adjudicative 

phase. 

The primary personnel involved in the investigative phase are OIA 

investigators, local BOP investigators located at the institutions, and the 

Chief Executive Officers (CEOs). The OIA investigates allegations of 

employee misconduct and monitors and approves investigations conducted 

by local BOP investigators at the institutions. Currently, the OIA staff 

includes 29 positions (1 vacant) – 15 located in Washington, D.C. (the Chief 

of OIA, 1 Supervisory Special Agent, 8 investigators, and 5 support staff) 

 

management relations; and the MSPB. The MSPB assumed the employee appeals function 

of the Civil Service Commission and was given new responsibilities to perform merit 

systems studies and to review the significant actions of the OPM. 

3 Curtis Douglas v. Veterans Administration, 5 MSPR 280, 5 MSPB 313 (1981). 

4 Thomas v. Department of Defense, 66 MSPR 546, 551, aff’d 64 F.3d 677 (Fed. Cir. 

1995). 
 

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Office of the Inspector General 

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and 13 located in Denver, Colorado (1 Supervisory Special Agent, 8 

investigators, and 4 support staff). The local investigators – 129 Special 

Investigative Supervisors (SIS) and 48 Special Investigative Agents (SIA) – 

are assigned to institutions and Regional Offices and perform employee 

misconduct investigations referred by the OIA, as well as inmate misconduct 

investigations.5 The CEOs review and approve all investigations conducted 

at their institutions. According to BOP Program Statement 3420.09, 

Standards of Employee Conduct, the CEO is defined as the Warden at 

institutions, the Director at staff training centers, the Community 

Corrections Manager at community corrections offices, the Regional Director 

at Regional Offices, and the Assistant Director of each division at the 

Central Office. Investigations with sustained allegations generally cannot be 

adjudicated until the CEO and the OIA have approved the investigation. 

The primary personnel involved in the adjudicative phase are the 

proposing officials, Human Resources (HR) staff at the institutions and the 

regions, LMR staff, and the deciding officials. The proposing officials 

propose discipline for misconduct allegations that were sustained in the 

investigative phase.6 The deciding officials, who determine and impose the 

discipline, are normally the CEOs of the institutions and other BOP offices 

and facilities. The HR staff at the institutions, with assistance from the 

regions, drafts the proposal letters, which inform the subjects of the 

proposed penalty, and decision letters, which inform the subjects of the 

penalty that will be imposed. The LMR staff (eight employee relations 

specialist positions in Washington, D.C., two of which are vacant, and five 

positions in Phoenix, Arizona) assists HR staff at the regions and 

institutions by providing technical advice and guidance, and reviewing and 

approving all proposal and decision letters. Institutions report to either of 

the two LMR offices, depending on their geographic location. The LMR also 

 5 In addition to its 113 institutions and 6 Regional Offices, the BOP also conducts 

operations from its Central Office, 2 staff training centers, and 28 community corrections 

offices. The Central and Regional offices provide administrative oversight and support to 

the institutions and community corrections offices. Community corrections offices oversee 

community corrections centers and home confinement programs. 

6 BOP Program Statement 3000.02, section 750.1, Processing Discipline and 

Adverse Actions (November 1, 1993), describes the officials who normally serve as 

proposing and deciding officials. Generally, the supervisor of the employee is the proposing 

official. For example, at institutions the department head, Associate Wardens, Assistant 

Superintendents, and Superintendents of Federal Prison Industries are proposing officials 

for subordinate staff. Deciding officials are typically the supervisors of the person who 

served as the proposing official. At institutions, the Warden generally acts as the deciding 

official for all cases proposed by a subordinate. 

 
 

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Office of the Inspector General 

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represents the BOP in third-party hearings (e.g., MSPB cases, arbitration, 

and grievance procedure cases).7 

 

The Investigative Phase 

BOP employees are required to report immediately to the CEO, the 

OIA, or the Department of Justice’s (Department) Office of the Inspector 

General (OIG) any attempted or actual violation of the Standards of 

Employee Conduct, BOP regulations, or law. According to BOP Program 

Statement 1210.24, once a CEO becomes aware of the misconduct 

allegation, he or she must classify the allegation and report it to the OIA for 

review. This Program Statement also defines the three classifications of 

misconduct allegations. 

• Classification I: allegations that would constitute a prosecutable 

offense or would be considered serious misconduct (e.g., physical or 

sexual abuse, bribery, extortion). According to the OIA’s “Report for 

Fiscal Year 2003,” of the 4,193 cases opened in FY 2003, 788 (18.8 

percent) were Classification I cases. 

• Classification II: allegations concerning violations of rules, 

regulations, or laws that are not likely to result in criminal 

prosecution but that constitute serious misconduct (e.g., threats, 

misuse of government materials, sexual harassment). In FY 2003, the 

BOP opened 1,287 (30.7 percent) Classification II cases. 

• Classification III: allegations that ordinarily have less impact on 

institutional operations (e.g., unprofessional conduct, failure to follow 

instructions). In FY 2003, the BOP opened 2,118 (50.5 percent) 

Classification III cases. 

The CEO must report Classification I or II allegations within 24 hours 

to the OIA on a Referral of Incident Form, along with any related documents 

(e.g., affidavits, photos, medical reports, memoranda). Classification III 

allegations are compiled and reported monthly.8 CEOs investigate 

 7 In FY 2003, BOP employees appealed 118 cases to the MSPB; the BOP won 77 (65 

percent) cases, lost 5 (4 percent), settled 35 (30 percent), and had 1 case mitigated (1 

percent). Of the 207 cases brought before an arbitrator, the BOP won 124 (60 percent), lost 

20 (9 percent), settled 58 (28 percent), and had 5 cases mitigated (2 percent). 

8 According to Wardens we interviewed, if there is any question or concern as to the 

correct classification of the allegation, they contact the OIA for clarification. The (cont’d) 
 

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Classification III allegations locally, using assigned SIS or SIA staff, prior to 

notifying the OIA, if the subject is a bargaining unit employee or is a nonbargaining unit employee at the GS-12 level or below. CEOs must notify the 

OIA prior to initiating any Classification III investigation involving nonbargaining unit employees at the GS-13 level or above. 

 

After receiving the allegation, the OIA reviews the associated 

documents for completeness and correct classification. The OIA then 

forwards the allegation to the OIG for review.9 Classification I and II 

allegations must be reported to the OIG within 24 or 48 hours, respectively. 

Classification III allegations that are complex and may result in severe 

disciplinary action also must be reported to the OIG within 48 hours. All 

other Classification III cases must be reported to the OIG on a monthly 

basis.10 Depending on the seriousness of the allegation, the OIG determines 

whether to investigate the allegation or refer it back to the OIA.11 If the OIG 

refers the allegation back to the OIA, the OIA decides whether to conduct 

the investigation itself or refer it back to the institution where the allegation 

originated for local investigation by SIS/SIA staff. 

 

A BOP investigation usually consists of interviewing the subject(s) of 

the allegation, the complainant(s), the relevant witnesses, and collecting 

evidence. Once the investigation is completed, the investigator prepares an 

investigative report that includes a determination whether the evidence 

sustains the allegation. For local investigations, the CEO reviews the case 

file and investigative report for content and completeness before forwarding 

it to the OIA. The OIA reviews the investigative file for completeness, 

 

classification can change as more information is learned prior to or during the 

investigation. 

9 The Inspector General Act of 1978, as amended, and Attorney General Order 

1931-94, dated November 8, 1994, require misconduct allegations concerning BOP 

employees and contractors to be reported to the OIG for review and disposition. 

10 The OIG Assistant Inspector General for Investigations issued a memorandum to 

the BOP, dated July 1, 1998, which outlined guidelines for reporting misconduct 

allegations to the OIG. This memorandum provided a general breakdown of misconduct 

allegations into three separate classes, with corresponding reporting periods to the OIG 

depending on the severity of the allegation. The BOP cannot initiate Classification I 

investigations prior to receipt and classification of the allegation by the OIG. Classification 

II investigations can be started, but the OIG reserves the right to initiate its own 

investigation. Classification III investigations can begin prior to OIA or OIG notification. 

 11 The OIG normally investigates allegations that involve criminal matters or noncriminal allegations involving senior BOP officials. 
 

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accuracy, and to determine whether the investigator’s conclusion is 

supported by the evidence.12 If the CEO or the OIA questions the 

completeness or accuracy of the local investigative report (e.g., whether 

certain questions were asked, a specific witness was interviewed, documents 

were missing), either can request further investigative work before approving 

the investigative report. If the OIA or the OIG conducted the investigation, 

the CEO is provided with a copy of the investigative report and the related 

affidavits. 

 

If the investigation does not sustain the allegation, the disciplinary 

process ends and the subject is notified of the result within seven working 

days. If the investigation sustains the allegation, the relevant investigative 

case file documents are forwarded to the HR staff at the institution to begin 

the adjudicative phase of the disciplinary process. 

The Adjudicative Phase 

The institution HR staff receives the investigative file from the CEO 

and reviews the content to recommend appropriate discipline. This 

recommendation is based on the specifics of the case, the discipline 

previously proposed in similar cases by the current CEO at that institution, 

and the range of discipline described in BOP’s Standard Schedule of 

Disciplinary Offenses and Penalties (its table of offenses).13 The institution’s 

HR staff, in conjunction with the proposing official, determines the 

appropriate proposed discipline. 

Once the HR staff and proposing official agree on the proposed 

discipline, the HR staff prepares a draft proposal letter that describes the 

 12 BOP Program Statement 1210.24, Office of Internal Affairs (May 20, 2003), 

requires that the OIA review and approve Classification I and II investigation reports prior 

to any disciplinary or adverse action being proposed. For Classification III investigations, 

the institution sends a one-page case summary to the OIA after it takes disciplinary or 

adverse action. 

13 The BOP table of offenses, which is attached as part of BOP Program Statement 

3420.09, Standards of Employee Conduct, serves as a guideline when determining the 

appropriate level of discipline. The table was last revised in 1999. The table lists a range of 

suggested discipline for the first, second, and third offense. The range for most offenses is 

“intentionally broad,” with penalties ranging from a Letter of Reprimand to removal. The 

table has 54 categories of offenses. Misconduct allegations can fall within one or more 

categories, depending on the unique factors and circumstances associated with the event. 

Additionally, the LMR specifies the type of misconduct through the application of 

approximately 204 case codes it uses to determine discipline. 
 

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charge(s); any specific details regarding the case; the proposed disciplinary 

or adverse action; and the rights to which the employee is entitled under 

applicable laws, rules, or regulations.14 The institution forwards a draft of 

the proposal letter with the accompanying case file to HR staff at one of six 

BOP Regional Offices for review and comment.15 The regional HR staff 

reviews the case file to ensure that it supports the charges. In addition, the 

staff reviews the proposal letter for accuracy of the charge; scrutinizes the 

letter’s content, format, and language; and identifies necessary 

improvements or corrections. The institution HR staff revises the proposal 

letter accordingly and forwards it to LMR staff for review. 

The LMR staff performs a final review of the proposal letter, also 

focusing on the accuracy and correctness of the stated charge, whether the 

evidence supports the charge, and whether the penalty proposed would be 

defensible in a third-party review. The LMR sends the letter back to the 

institution, where HR staff incorporates changes and finalizes the proposal 

letter. The proposing official reviews the letter, signs it, and gives it to the 

subject, who also reviews and signs the proposal letter. The proposal letter 

states that the subject has 10 calendar days to respond orally or in writing 

to the deciding official on proposed disciplinary actions and 15 days for 

proposed adverse actions. These responses become part of the case file. 

 After the subject reviews and signs the proposal letter, it is forwarded 

along with the case file to the deciding official for review. The deciding 

official applies the relevant Douglas factors – MSPB guidance on selecting 

reasonable and consistent penalties – and considers any verbal or written 

response provided by the subject before determining and imposing the 

penalty. The deciding official can only agree with or mitigate the penalty 

documented in the proposal letter. The institution HR staff reviews similar 

case histories for consistency, clarifies issues with the deciding official if 

necessary, and prepares the decision letter, following the same review 

process used for the proposal letter with the region and the LMR. The HR 

staff at the institution, region, and the LMR should ensure that the reasons 

for the imposed discipline are fully explained in the decision letter. This 

 14 The term disciplinary action is used to describe proposed or imposed penalties 

ranging from a Letter of Reprimand to suspensions of 14 days or less (this does not include 

an oral reprimand, which is defined as informal discipline). The term adverse action

encompasses penalties ranging from suspensions over 14 days to reductions in pay or 

grade to removal. An employee can only appeal adverse actions to the MSPB. 

 15 HR staff at the local and regional level refer to a general information and 

guidance manual provided by the LMR known as “Paint-by-Numbers” for direction on 

questions, scenarios, and templates for formatting proposal and decision letters. This 

manual is undergoing revision, which should be completed by the fall of 2004. 
 

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explanation should include a full and complete discussion of the relevant 

Douglas factors. Once the review process is completed, the deciding official 

presents the decision letter containing the final decision, the penalty, and 

the date the penalty begins to the subject for review and signature. The 

decision letter also advises the subject of actions available if the subject 

believes that the proposed discipline is wrong or excessive (e.g., filing a 

grievance or requesting arbitration). 

Once the adjudicative phase is completed, the institution provides the 

OIA with copies of the proposal and decision letters and the Standard Form 

SF-50 (Notification of Personnel Action), if required for the penalty, for its 

investigative files. The Chief of OIA determines when to close the case file 

officially and notifies the CEO when this occurs.16 

In FY 2003, the OIA closed 2,942 misconduct investigations involving 

3,715 BOP subjects.17 In these cases, allegations for 1,859 subjects were 

sustained, while the allegations for the remaining 1,856 subjects were either 

not sustained, determined to be unfounded, or administratively closed. 

Table 1 shows the outcomes for subjects with sustained allegations. 

Table 1: Outcomes for BOP Employees with Sustained Allegations 

Penalty Imposed Number of 

Subjects 

Percentage of Total 

Subjects 

Suspension 494 26.6 

Written Reprimand 434 23.3 

No Penalty – No Action Taken 399 21.5 

Oral Reprimand 257 13.8 

No Penalty – Subject Resigned 132 7.1 

Removal 50 2.7 

No Penalty – Subject Retired 27 1.5 

Other Type of Penalty (e.g., Last 

Chance Agreement or Settlement 

Agreement) 

23 1.2 

Demotion 20 1.1 

Combination of Penalties 17 0.9 

No Penalty – Subject Reassigned 4 0.2 

Penalty Missing 2 0.1 

Totals 1,859 100.0 

Source: OIG analysis of BOP data

 16 A flowchart of the BOP’s disciplinary process is contained in Chart 1. 

 

17 Some of these subjects may have been under investigation more than once. 
 

U.S. Department of Justice 9

Office of the Inspector General 

Evaluation and Inspections Division 

 

Chart 1: Flowchart of BOP’s Disciplinary System 

Investigative Phase

The allegation is reported 

to BOP management. reports the allegation to OIA for 

BOP management classifies and 

review and additional classification.

OIA reviews, classifies 

and reports the allegation 

to OIG. 

OIA determines whether to conduct investigation 

or refer back to local investigators at the 

institution. 

Investigators conduct investigation and write 

investigative report, which concludes whether 

allegation is sustained or not. 

 CEO and OIA review the investigation for 

completeness, accuracy, and conclusion. 

Class I & II are reported 

immediately to OIA. 

Class III are reported in monthly 

summary to OIA. 

forwarded to local HR for 

The investigative report is 

adjudication. 

Local HR and proposing official 

determine discipline and draft 

proposal letter. 

Proposal letter and supporting 

documentation are forwarded to 

region and then LMR for review.

Local HR finalizes proposal letter. The 

proposing official issues letter to 

employee for review and signature. 

Deciding official reviews 

proposal letter and employee 

response (if provided), then 

discipline to be imposed. 

makes determination on 

Local HR drafts decision 

letter and forwards it to 

region and LMR for 

review. 

Local HR finalizes decision letter; 

deciding official issues letter to 

employee for signature. 

Discipline is 

imposed. OIA officially closes the case. 

Adjudicative Phase 

OIG either investigates or 

refers the allegation back to 

OIA. 

the disciplinary process ends.

If allegation is not sustained, If allegation is sustained, the case begins adjudication phase. 
 

U.S. Department of Justice 10

Office of the Inspector General 

Evaluation and Inspections Division 

 

Workload of BOP Staff Involved in Disciplinary System 

During FY 2003, according to OIA statistics, 4,193 investigations of 

BOP employees were opened and 3,627 were closed.18 These statistics 

include cases investigated by other Department entities (e.g., the OIG, the 

Federal Bureau of Investigation (FBI), the Civil Rights Division). The 4,193 

opened cases represented an increase of 16 percent from the 3,629 cases 

opened in FY 2002. Of the 4,193 cases opened in FY 2003: 

• SIA/SIS investigators conducted 3,412 (81 percent) investigations;19

• OIA investigators conducted 516 (12 percent) investigations, an 

average of 32 per investigator, and also monitored an average of 213 

local investigations per investigator; and 

• Other Department entities investigated the remaining 265 (6 percent) 

cases. 

In FY 2003, information involving 1,719 employees with sustained 

misconduct allegations was forwarded through a BOP region and the LMR 

for adjudication. This averaged 286 cases reviewed by HR staff at each of 

the six BOP regions and approximately 156 cases reviewed by each LMR 

Employee Relations Specialist. 

 

 18 Of the 3,627 investigations closed in FY 2003, 2,942 involved BOP employees. 

19 Of these cases, 2,118 were Classification III, for which a one-page summary of 

the investigation is all that is required for the OIA file and case closure. 
 

U.S. Department of Justice 11

Office of the Inspector General 

Evaluation and Inspections Division 

 

PURPOSE, SCOPE, AND METHODOLOGY 

Purpose 

 The OIG conducted this review to assess the BOP’s disciplinary 

system. Specifically, we reviewed whether BOP employees properly reported 

misconduct; whether investigations were thorough; and whether 

disciplinary actions were reasonable, consistent, and timely. 

Scope 

We reviewed all BOP employee misconduct cases that were opened or 

closed in FY 2003. We did not review cases involving contract/halfway 

house employees, employees at private correctional facilities under contract 

to the BOP, state or local employees at facilities with a BOP 

Intergovernmental Agreement, and Public Health Service employees working 

at BOP facilities.20 

 

Methodology 

Site Visits. We visited the Federal Correctional Institution (FCI) and 

Federal Medical Center (FMC) in Butner, North Carolina, and the FCI in 

Petersburg, Virginia. At these institutions, we interviewed CEOs (i.e., the 

Wardens), Employee Relations Specialists, SIS/SIA investigators, and a 

number of supervisors who acted as proposing officials for disciplinary 

actions in FY 2003. 

 

Interviews. We conducted interviews with officials in the BOP 

Central Office, Regional Offices, and institutions. In the BOP Central Office, 

we interviewed the Director of the Human Resources Management Division 

(HRM), the Chief and the two Supervisory Special Agents in the OIA, and the 

Chief and Deputy Chief of the Labor Management Relations and Security 

Branch. In addition to an on-site interview with the Human Resource 

Administrator of the Mid-Atlantic Regional Office in Annapolis Junction, 

Maryland, we interviewed by telephone the Human Resource Administrators 

in the BOP’s other five regions and members of the HR staff in 12 

institutions (2 institutions from each of the 6 regions that had the highest 

number of allegations of employee misconduct in FY 2003). We also 

 20 Intergovernmental Agreements are essentially contracts that the BOP enters into 

with state and local governments to house BOP inmates in their correctional facilities. 
 

U.S. Department of Justice 12

Office of the Inspector General 

Evaluation and Inspections Division 

 

interviewed Special Agents and Program Analysts in the OIG’s Investigations 

Division. 

Sample Review. From misconduct investigations involving BOP 

employees closed in FY 2003, we randomly selected 100 cases for review – 

50 Classification I cases, 30 Classification II cases, and 20 Classification III 

cases. Of these 100 cases, we were able to review the OIA or local BOP 

investigative reports for 85 cases.21 These 85 cases included 206 subjects. 

We reviewed the investigative files for these 85 cases as well as documents 

in related disciplinary files of subjects with sustained allegations. An OIG 

Special Agent also reviewed the investigative case files to assess their 

thoroughness. 

 

Data. The BOP provided us with data from the LAWPACK database, 

maintained by the OIA, which contained information on the reporting and 

investigation of alleged employee misconduct, the conclusion of these 

investigations, and the discipline imposed. The OIA enters and tracks 

misconduct allegation and related case file information in LAWPACK. 

LAWPACK, which the OIA has used since October 2000, contains data 

regarding the allegation, the subject of the allegation, and case disposition. 

We used LAWPACK data to analyze the investigations of employee 

misconduct, including the timeliness of reporting allegations to the proper 

authorities, the disposition of the investigations, and the consistency of 

disciplinary actions based on various factors, such as job series or gender. 

The BOP also provided us with information regarding the misconduct 

cases as they proceed through the adjudicative phase. We used this 

information, including the charges, the case codes, and the proposed and 

final discipline, to analyze the adjudication of the disciplinary cases, 

including the timeliness of issuing proposal and decision letters and any 

changes that were made in the proposed discipline from the proposal to the 

decision letter. 

 We also reviewed BOP program statements and manuals regarding 

the disciplinary system; OIA annual reports; OIG Investigations Division 

data relating to the BOP’s disciplinary system; previous OIG and BOP 

reports about discipline; and federal and departmentwide laws and 

regulations applicable to disciplinary systems. 

 21 We did not review 13 of the 85 cases because they were investigated by the OIG 

or the FBI, 1 case because it was administratively closed, and 1 case because the subject 

was not a BOP employee. 
 

U.S. Department of Justice 13

Office of the Inspector General 

Evaluation and Inspections Division 

 

Surveys. We conducted an e-mail survey of a random sample of BOP 

employees to determine their experience with and perception of the BOP’s 

disciplinary system. Of the approximately 33,600 BOP employees, we sent 

surveys to 441 and received 275 responses. Appendix II contains 

confidence intervals regarding these responses. In choosing the 

respondents’ comments included in the body of this report, we chose those 

that were the most representative of the opinions expressed by the 

respondents. 

 We also sent an e-mail survey to CEOs who served as deciding 

officials in FY 2003 to obtain their views of the disciplinary system. Of the 

95 individuals we surveyed, 63 responded. 

 Finally, we surveyed all 18 OIA investigators by e-mail for their 

assessment of the investigative phase, including their workload, the 

monitoring of local investigations, and their training needs. All 18 OIA 

investigators responded to our survey. 
 

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14

RESULTS OF THE REVIEW 

INVESTIGATIONS OF EMPLOYEE MISCONDUCT 

We found that BOP employees did not report all employee 

misconduct as required. However, when alleged 

misconduct was reported, our review found that BOP 

investigations of employee misconduct were thorough. 

BOP employees failed to report employee misconduct. The BOP’s 

Standards of Employee Conduct (Program Statement 3420.09) require that 

employees “Immediately report to their CEOs, or other appropriate 

authorities, such as the Office of Internal Affairs or the Inspector General’s 

Office, any violation or apparent violation of these standards.” In our e-mail 

survey of BOP employees, almost 92 percent of the respondents said that 

they had read the Standards of Employee Conduct and 96 percent said that 

they were aware of the BOP’s requirements for reporting employee 

misconduct.22 However, of the respondents who said they had witnessed 

employee misconduct, 41 percent stated that they did not always report this 

misconduct to the proper authorities. Sixty-six percent reported that they 

did not believe that their fellow employees always reported misconduct. 

One case in our sample of investigative files involved a Warden who 

did not report an allegation of misconduct. According to the BOP’s Program 

Statement 1210.24, “Upon becoming aware of any [emphasis added] 

possible violation of the Standards of Employee Conduct, the CEO... is to 

report the violation to OIA.” The OIA received an anonymous complaint 

alleging that a BOP employee was selling prescription drugs at the 

institution and that the Warden was aware of the allegation but never 

referred it to the OIA as required. Instead, the Warden directed SIS staff to 

make the case an “informational file.” The OIA opened a Classification I 

investigation regarding the sale of the prescription drugs and subsequently 

charged the Warden with Failure to Report Misconduct. The OIA 

investigation revealed that the Warden had been notified of the allegation 

but did not refer it to the OIA. The Warden stated in his affidavit, “based on 

my interpretation and review of all documentation, it was my decision to 

refer the case back to the SIA office as an information file... I believe I was 

acting within the scope of my position... .” The OIA investigation found 

 22 BOP employees are required to sign the Standards of Employee Misconduct when 

they begin employment with the BOP. In addition, employees sign these standards every 

time that they are updated and also receive annual training on the standards. 
 

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Office of the Inspector General 

Evaluation and Inspections Division 

15

insufficient evidence to support the allegations against the staff member or 

the Warden and stated that his decision not to refer the case “was a 

‘judgement call’ on his part [and] was within the scope of the Warden’s 

position.” However, the scope of the Warden’s authority to make such 

judgment calls is not defined in any BOP policy. 

In this case, the OIA’s decision that the Warden could use his 

judgment violated its own policy that “any possible violation” be reported to 

the OIA. This is illustrated by the fact that the Warden determined that this 

case did not meet even Classification III reporting criteria (as evidenced by 

his not including the case in the monthly report to OIA), while the OIA later 

assigned it Classification I status. 

BOP investigations of employee misconduct were thorough. An 

OIG Special Agent reviewed a random sample of 85 investigative files and 

found that local investigations, which are reviewed by the CEO and the OIA 

before closure, and OIA investigations were thorough. The OIG Special 

Agent concluded that the allegations were properly classified, that the BOP 

investigator interviewed relevant witnesses and examined the necessary 

documents, and that the investigative report contained the information 

necessary to understand the actions taken during the investigation. The 

OIG Special Agent agreed with the investigators’ conclusions regarding 

whether the allegations should or should not be sustained and rated the 85 

investigations as either “very good” or “good.” 

 

We also surveyed OIA investigators, deciding officials, and BOP 

employees for their opinions of misconduct investigations. We surveyed OIA 

investigators to obtain their opinions of the quality of local investigative 

reports because they monitor and review local investigations completed at 

the institutions. Seventy-eight percent of OIA investigators responded that 

local investigative reports were of “very good” or “good” quality (Chart 2). 

0

20

40

60

80

Very Good Good Fair Poor

Chart 2: OIA Investigators' Opinions of Quality of Local Investigative Reports

Source: OIG analysis of OIA Investigator Survey
 

U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division 

16

We surveyed deciding officials to obtain their opinions on the quality 

of both OIA and local investigative reports. The majority of the respondents 

rated the quality of the investigative reports as either “very good” or “good,” 

as shown in Chart 3. More than 96 percent thought the quality of OIA 

reports was either “very good” or “good,” while 89 percent believed that local 

reports were “very good” or “good.” 

0

10

20

30

40

50

60

Very Good Good Fair Poor

Chart 3: Deciding Officials' Opinions of Quality of OIA and Local Investigative Reports

OIA investigations

Local investigations

Source: OIG analysis of Deciding Official Survey

We also surveyed BOP employees to obtain their perceptions 

regarding the quality of investigations and found that their perceptions were 

slightly less positive than the OIA investigators’ and deciding officials’ 

opinions. Seventy-four percent (100 of 136) of the respondents who stated 

that they were involved in or aware of an investigation believed that the 

investigations were thorough. The 26 percent (36 of 136) who did not 

believe that the investigations were thorough included such responses as: 

• “Some employees who should be interviewed are not interviewed; each 

investigator has his/her own idea of what is and what is not 

important.” 

• “[Investigators] don’t always investigate all pertinent areas and/or 

question employees that were involved and have a lot of input.” 

• “Now it appears [the investigators] just get what information they need 

for a quick completion instead of being thorough without regard to the 

factual outcome of the investigation.” 

• “Personnel are required to fill out affidavits in some investigations 

while memo’s [sic] will suffice in others. Paperwork is not filled out 

correctly, leaving loopholes.” 
 

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Office of the Inspector General 

Evaluation and Inspections Division 

17

We partly attribute the high ratings of the quality of BOP 

investigations to the OIA’s monitoring of local investigations, which provides 

a centralized level of review. We found that this monitoring helped to 

ensure that the investigations were thorough and supported the 

investigators’ conclusions. For example, 17 of the 18 OIA investigators 

stated that they had disagreed with a local investigator’s conclusion at one 

time or another. When this occurred, the OIA investigators said that they 

asked the local investigators to interview additional witnesses, review 

pertinent BOP policies, or gather more information until the OIA investigator 

believed that the investigation strongly supported the conclusion. 
 

U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division 

18

REASONABLENESS OF THE DISCIPLINARY SYSTEM 

BOP disciplinary decisions sometimes did not appear 

reasonable. For some cases with serious sustained 

allegations, the CEOs unilaterally took no disciplinary 

action or imposed informal discipline without fully 

adjudicating the cases or documenting their reasons for 

taking these actions. In other cases, in their role as 

deciding officials, CEOs mitigated proposed discipline 

without adequately explaining their reasons in the decision 

letter as required. Further, the CEOs can influence local 

investigative reports for cases in which they also will act as 

the deciding officials, creating the potential for outcomes 

that are not reasonable. We also found that disciplinary 

files lacked the required documentation and that the BOP’s 

table of offenses, while specific to the mission of the BOP, 

provided a range of penalties too broad to be useful. 

Disciplinary decisions sometimes did not appear reasonable. 

Disciplinary penalties should be commensurate with the level and type of 

misconduct committed, while considering the relevant factors involved in 

the case. To assess whether the BOP imposed reasonable penalties, we 

reviewed case files for the 206 subjects in our sample of 85 cases. Of the 

206 subjects, the investigations sustained allegations for 92 subjects (45 

percent), did not sustain the allegations for 111 subjects (54 percent), and 

found that allegations for 3 subjects (1 percent) were unfounded.23 

We reviewed the case files for the 114 subjects for whom the 

allegations either were not sustained or were unfounded and determined 

that the investigations’ conclusions were reasonable. For the 92 subjects 

for whom the allegations were sustained, we determined that the outcomes 

for 36 (39 percent) of the subjects also were reasonable, based on our review 

of the documentation in the case files. 

The outcomes did not appear reasonable for the remaining 56 of 92 

(61 percent) subjects. First, the CEOs imposed either informal or no 

discipline for 20 subjects with sustained Classification I or II allegations 

without formally adjudicating the cases. Classification I and II allegations 

are generally serious and therefore we would expect formal discipline to be 

 23 According to the OIA Chief, an allegation is not sustained if there is not a 

preponderance of evidence to support the allegation. An allegation is unfounded if there is 

no evidence to support the allegation and either the evidence contradicts the allegation or 

the allegation is preposterous. 
 

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Office of the Inspector General 

Evaluation and Inspections Division 

19

imposed. Further, the CEOs did not document their reasons for their 

decisions in these cases. For the remaining 36 subjects, the disciplinary 

proposal appeared commensurate with the sustained charges. However, 

the deciding officials mitigated the proposed discipline without adequately 

documenting their reasons. The mitigated discipline no longer appeared 

commensurate with the sustained allegations. We discuss these two 

reasons in greater detail in the following paragraphs. 

CEOs either imposed informal discipline or took no disciplinary action 

for some subjects charged with serious allegations. Our sample identified 

20 subjects with sustained allegations in the more serious Classification I 

and II categories for whom the CEO either imposed informal discipline or 

took no action without fully adjudicating the case or documenting the 

reasons for their decisions (see Table 2). Therefore, the CEOs’ decisions to 

impose informal discipline or take no action in these serious cases did not 

appear to be reasonable outcomes. 
 

U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division 

20

Table 2: Subjects Whose Cases Did Not Go Through the Full 

Adjudicative Phase 

Subject Classification Sustained Charges Discipline 

1 1 Failure to Follow Policy No Action 

2 1 Falsification of Government 

Documents 

Oral Reprimand

3 1 Falsification of Government 

Documents 

Oral Reprimand

4 1 Falsification of Government 

Documents 

Oral Reprimand

5 1 Falsification of Government 

Documents 

Oral Reprimand

6 1 Falsification of Government 

Documents 

Oral Reprimand

7 1 Falsification of Government 

Documents 

Oral Reprimand

8 1 Falsification of Government 

Documents 

Oral Reprimand

9 1 Falsification of Government 

Documents 

Oral Reprimand

10 1 Falsification of Government 

Documents 

Oral Reprimand

11 1 Falsification of Government 

Documents 

Oral Reprimand

12 1 Unprofessional Conduct of a 

Sexual Nature; Theft/Misuse of 

Government Property 

No Action 

13 2 Accepting Anything of Value from 

an Inmate 

No Action 

14 2 Accepting Anything of Value from 

an Inmate 

No Action 

15 2 Breach of Security; Failure to 

Follow Policy 

Oral Reprimand

16 2 Breach of Security; Failure to 

Follow Policy 

Oral Reprimand

17 2 Breach of Security; Failure to 

Follow Policy 

Oral Reprimand

18 2 Endangering the Safety of Others; 

Unprofessional Conduct 

Oral Reprimand

19 2 Inattention to Duty No Action 

20 2 Unprofessional Conduct Oral Reprimand

Source: OIG Analysis of BOP Investigative Files 
 

U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division 

21

The cases for these 20 subjects were not fully adjudicated. We found 

no proposal letters to indicate that the cases for these 20 subjects were 

reviewed and approved by proposing officials, and institutional, regional, 

and LMR staff. Moreover, we found decision letters for only four subjects. 

These decision letters did not indicate that the subject received a proposal 

letter, and did not include the CEO’s rationale for imposing informal 

discipline or taking no action.24 These elements of the adjudicative phase 

are necessary as they collectively serve as checks and balances to ensure 

that imposed discipline is reasonable. Below are two case examples from 

our sample. 

Case Example 1: An OIA investigation into a Classification I allegation 

found that a BOP Correctional Treatment Specialist had made 

comments of a sexual nature to a department head and had removed 

government property from the institution for her personal use. 

Charges of Unprofessional Conduct of a Sexual Nature and 

Unauthorized Removal of Government Property for Personal Use were 

sustained against the employee. Neither the investigative file nor the 

disciplinary file contained a proposal or decision letter to document 

that this case was properly adjudicated. In addition, the investigative 

file stated that “The warden elected not to take any disciplinary action 

against [the employee]” without any explanation. Given the serious 

nature of the charges, the decision on the part of the Warden not to 

take action without fully adjudicating the case does not appear 

reasonable. 

Case Example 2: A local investigation of a Classification II allegation 

found that a BOP correctional officer gave his knife to an inmate in 

the institution. After a supervisor confiscated the knife from the 

inmate, he returned it to the correctional officer rather than holding it 

as evidence for an investigation. A 5-day suspension for Introduction 

of Contraband and Giving an Inmate an Unauthorized Item was 

proposed, and the correctional officer received a Letter of Reprimand, 

which seemed reasonable according to the mitigating factors 

discussed in the decision letter. With regard to the supervisor, 

investigators sustained an allegation of Inattention to Duty. However, 

no proposal or decision letter was in the investigative or disciplinary 

file to document that the supervisor’s case was properly adjudicated. 

Instead, documentation in the investigative file showed that “the 

 24 According to guidance from the LMR, a decision letter stating that the deciding 

official has chosen to take no action should read, “This is to notify you that I will not take 

any action on the notice of proposed disciplinary action [emphasis added] which you 

received on [date].”
 

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Office of the Inspector General 

Evaluation and Inspections Division 

22

Warden elected to take no action against [the supervisor]” without any 

explanation for his reasons. 

 In our discussions with HR staff at the institutions, the HR staff 

stated that the CEOs sometimes took no disciplinary action or imposed 

informal discipline without forwarding the case through the full adjudicative 

phase because they believed the misconduct was not serious enough to 

impose formal discipline. When we asked an LMR official about whether the 

CEOs could bypass the adjudicative phase, she stated that she would not 

know if this occurred because LMR only reviewed cases when the institution 

wanted to take disciplinary action. She further stated that there is no BOP 

policy stating that all sustained allegations must go through the 

adjudicative phase, and that deciding officials should have some latitude in 

making disciplinary decisions. 

In other Department disciplinary systems reviewed by the OIG, 

deciding officials were not involved in the disciplinary process until the 

proposing official had issued the proposal letter to the subject.25 However, 

in the BOP, this is not the case. The deciding officials, in their capacity as 

the CEOs, review the investigative report before the proposing official and 

therefore have the opportunity not to forward the investigative case file to 

HR for adjudication. Under the BOP’s procedures, the CEO can impose 

informal discipline or take no action after reading an investigative report 

with sustained allegations, bypassing the proposing official and the full 

adjudicative phase, as evidenced by the 20 subjects in our sample. In 

effect, the CEO acts unilaterally and without the formal recommendations of 

the proposing official, and institutional, regional, or LMR staff. When the 

CEO determines that certain cases should not be fully adjudicated, these 

cases are not subjected to the checks and balances to ensure 

reasonableness that are inherent in having independent investigative and 

adjudicative phases. 

Deciding officials mitigated the proposed penalties without adequately 

explaining their reasons for the mitigation in the decision letters. We 

determined that deciding officials mitigated penalties for 36 subjects in our 

sample without adequate explanation in the decision letters. Based on the 

documentation in the investigative files and the proposal letters, the 

proposed penalties seemed reasonable. However, the mitigated imposed 

penalties did not appear reasonable because they lacked adequate 

explanation in the decision letters. The lack of documentation in the 

 25 See Review of the United States Marshals Service Discipline Process, Report No. I2001-011, September 2001, and Review of the Drug Enforcement Administration’s 

Disciplinary System, Report Number I-2004-002, January 2004. 
 

U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division 

23

decision letters is not in compliance with Title 5, Code of Federal 

Regulations, Part 752, which states that agencies must maintain “the notice 

of decision and reasons therefore.” In addition, according to guidance from 

the BOP’s LMR: 

In all decision letters, always include a full and complete 

discussion of all relevant Douglas factors... If the penalty in the 

proposal is mitigated (lessened), you must make some 

indication in the decision of the reasons why. In all cases, 

provide a full discussion of all of the relevant Douglas 

factors in the decision letter. 

Below are two case examples from our sample in which the deciding 

official mitigated the proposed discipline without sufficiently explaining the 

reason in the decision letter. 

Case Example 1: An OIA investigation found that a BOP employee hit 

an inmate and failed to disclose this information during his initial 

interview with OIA investigators. Therefore, allegations of Physical 

Abuse of an Inmate and Providing a False Statement were sustained 

against the employee. The proposing official proposed that the 

employee be removed. Based on information contained in the 

investigative file and the proposal letter, the proposed penalty seemed 

reasonable. However, the deciding official chose instead to demote 

the employee. A review of the deciding official’s consideration of the 

Douglas factors in the decision letter did not explain why he mitigated 

the penalty. For each Douglas factor mentioned in the decision letter, 

the deciding official described reasons not to mitigate the penalty. The 

deciding official wrote: 

When considering what penalty was appropriate, I 

considered, among other factors: (a) charges of Physical 

Abuse of an Inmate and Providing Conflicting Information 

are very serious charges in light of your current position as a 

supervisor who commonly needs to work with a great 

amount of autonomy and who has management oversight 

and guidance responsibilities to subordinate correctional 

services staff and inmates, (b) your position as a federal law 

enforcement officer requires that your actions be above 

reproach and that you forthrightly answer questions 

presented to you by agency officials, (c) while your past work 

record has been acceptable, it does not shield your very 

serious breach of trust, (d) while you have no prior 

disciplinary record and have demonstrated some degree of 
 

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Office of the Inspector General 

Evaluation and Inspections Division 

24

remorse, your misconduct is so serious as to warrant a 

substantial penalty, (e) your misconduct has caused serious 

damage to your superior’s confidence in your ability to do 

your current job, (f) the penalty is consistent with the 

agency’s table of penalties, (g) you were aware of the 

applicable policy and procedures as we train staff in the 

Employee Code of Conduct and the Use of Force policies 

immediately upon entrance on duty and annually thereafter, 

(h) while you may or may not have been first provoked by the 

inmate’s spitting upon you, you had the staffing resources 

immediately available to you to use a lesser degree and form 

of force (e.g., you could have simply turned the inmate’s face 

away from you), (i) alternative sanctions were considered, 

but I concluded that they would not have had the desired 

corrective effect. 

In fact, the deciding official wrote, “I believe that either of the [two] 

sustained charges would normally warrant removal by themselves.” The 

deciding official did not explain the decision to demote, rather than remove, 

the employee. In this case, the decision to demote the employee did not 

appear reasonable, given the seriousness of the charges. 

Case Example 2: In another OIA investigation, an employee was 

found to have committed misconduct when he used physical force on 

an inmate but did not report it, and later provided a false statement 

about the incident to investigators. The OIA investigation sustained 

charges of Failure to Follow Policy and Providing a False Statement. 

The proposing official proposed a 5-day suspension, but the deciding 

official took no disciplinary action. The decision letter contained no 

reason for the decision. It read in total, “This is to notify you that I 

will not take any action on the notice of proposed disciplinary action 

which you received.” 

We also found that LMR staff involved in the disciplinary process 

believed that in certain cases the proposed discipline should not have been 

mitigated. In one case involving the failure of the subject to respond to an 

emergency, the deciding official mitigated the proposed discipline from a 7-

day suspension to a Letter of Reprimand. The LMR staff member reviewing 

the case wrote the following comments: 

I will approve the letter but I have concerns... [The subject] did 

not express remorse, did not apologize and didn’t offer written 

response. He’s also been disciplined before. Why would it be 

mitigated? This is a serious problem. 
 

U.S. Department of Justice 

Office of the Inspector General 

Evaluation and Inspections Division 

25

Another case involved a subject charged with being Absent Without 

Leave. The proposing official proposed a 3-day suspension, but the deciding 

official gave the subject a Letter of Reprimand. Information obtained from 

LMR showed that the LMR staff member noted “concerns on why they went 

from three day suspension to a letter of reprimand, [but] was told that was 

what the Warden wanted.” 

Overall, in FY 2003, 63 percent of all discipline was mitigated from 

what the proposing official proposed. While a reduction in the proposed 

discipline may be reasonable based on other evidence or mitigating 

circumstances described in the employee’s oral or written statement (if 

supplied), it is essential that the deciding official document the reasons for 

mitigation in the decision letter, as required. 

The CEOs can influence local investigative reports for cases in 

which they also will act as the deciding officials, creating the potential 

for outcomes that are not reasonable. The BOP’s disciplinary system 

requires the CEOs, in their role as administrators, to review and approve 

local investigations before they are forwarded to the OIA for its review. The 

CEOs whom we surveyed stated that if a report did not contain the 

necessary information or if they disagreed with an investigation’s 

conclusion, they would ask the investigators to investigate further. Further, 

some CEOs stated that when they disagreed with an investigation’s 

conclusion, they changed the investigator’s findings or took no disciplinary 

action. Because the CEOs review and have the opportunity to influence the 

content and conclusions of the investigative reports during the investigative 

phase and then act as the deciding official in the adjudicative phase, the 

independence of the investigative and adjudicative phases, which helps to 

ensure that disciplinary outcomes are reasonable, can be compromised. 

Disciplinary files lacked required documentation. As mentioned 

earlier, our sample included 20 subjects for whom the deciding official 

either imposed informal discipline or took no action and the disciplinary file 

was missing the proposal letter, the decision letter, or both. We reviewed 

the disciplinary files for the remaining 72 subjects in our sample with 

sustained allegations and found that some of these files also did not contain 

the required documentation. According to Title 5, Code of Federal 

Regulations, Part 752: 

Copies of the notice of proposed action, the answer of the 

employee if written, a summary thereof if made orally, the 

notice of decision and reasons therefore, and any order affecting 
 

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the suspension, together with any supporting material, shall be 

maintained by the agency... .26

During our review, we asked the BOP to provide us with the following 

documents from the disciplinary file for the 92 subjects with sustained 

allegations: 1) proposal letter; 2) employee’s written response, if applicable; 

3) summary of employee’s oral response, if applicable; 4) decision letter; and 

5) documentation of imposed discipline. 27 We found that the proposal letter 

was missing for 28 (30 percent) subjects, and the decision letter was 

missing for 20 (22 percent) subjects. Documentation of imposed discipline 

was missing in four cases (Table 3).

Table 3: Documentation Missing from Disciplinary Files 

Discipline Imposed (Number of Subjects) 

Proposal 

Letters 

Missing 

Decision 

Letters 

Missing 

Documentation 

of Imposed 

Discipline 

Missing 

Removal (4) 0 0 0 

Suspension (12) 1 1 3 

Demotion (2) 0 0 0 

Letter of Reprimand (41) 4 1 1 

Oral Reprimand (17) 16 11 N/A 

No Action Taken (12) 7 7 N/A 

Not Applicable Because Subject Resigned or 

Retired before Adjudication (4) N/A N/A N/A 

Total (92) 28 20 4 

Source: OIG analysis of BOP investigative files 

 We also examined whether the written or oral response of the subject 

was maintained in the files, as these typically contain the reasons why a 

deciding official would choose to mitigate the proposed penalty. Fifty-six 

subjects chose to give an oral response; 8 (14 percent) of the oral summaries 

were missing from the case file. Fourteen subjects chose to give a written 

response; 4 (29 percent) were missing. When required documentation 

explaining the reasons for the discipline imposed is not included in the case 

file, it is not possible to determine if the discipline is reasonable. 

 26 The statutory requirements for documentation of disciplinary actions are found 

in Section 7503(c) and for adverse actions in Section 7513(e). 

27 For our review, documentation of imposed discipline included either the SF-50 or 

the Letter of Reprimand. The SF-50 is used to document disciplinary or adverse actions 

imposed as a result of sustained misconduct. While federal policy requires that the SF-50 

be maintained, in cases of Letters of Reprimand the only proof that the employee was 

disciplined is the actual letter. Therefore, for this analysis we included the Letter of 

Reprimand as documentation of imposed discipline. 
 

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The table of offenses does not provide enough guidance to 

determine reasonable discipline. The table of offenses, while specific to 

the mission of the BOP, included a broad range of penalties that do not 

provide enough guidance for proposing and deciding officials to determine 

reasonable discipline. The BOP’s table of offenses was last revised in 1999 

and currently is being updated. It contains 54 offense categories that are 

specific to the BOP’s mission of protecting society by confining offenders in 

appropriate facilities. These offense categories include: 

• Physical abuse of an inmate; 

• Acceptance of any gift or favor from an inmate or former inmate; 

• Preferential treatment of inmates; 

• Loss of temper in the presence of inmates, former inmates, their 

families or friends; and 

• Improper relationship with inmates, former inmates, their families or 

friends. 

The penalty range for a first offense for 41 of these 54 (76 

percent) offense categories is “official reprimand to removal.” This 

range essentially encompasses every type of formal discipline possible 

and is so broad that it gives the proposing and deciding officials no 

guidance in determining a reasonable penalty. 

Survey of BOP employees on discipline. Our e-mail survey of a 

random sample of 275 BOP employees indicated that 74 percent of 

respondents who stated that they were aware of employee misconduct 

investigations that resulted in discipline believed that the discipline was 

appropriate, while 26 percent believed it was not appropriate. We found 

that 17 percent of the respondents stated that the discipline imposed was 

too lenient. 
 

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CONSISTENCY OF THE DISCIPLINARY SYSTEM 

We found that the BOP does not ensure that discipline is 

imposed consistently BOP-wide because BOP guidance 

instructs that similar penalties be imposed for similar 

misconduct only by the current CEOs within their 

institutions. Consequently, employees at different 

institutions, or at the same institution with different CEOs, 

can receive different discipline for similar misconduct and 

circumstances. We were unable to measure the consistency 

of discipline imposed when comparing similar misconduct 

BOP-wide. Finally, although our survey found that many 

BOP employees believed that an employee’s grade level, job 

series, gender, or race affected the imposed discipline, our 

analysis of BOP data did not substantiate that the 

disciplinary process was affected by these characteristics. 

An equitable disciplinary system should ensure that employees 

receive substantially similar discipline for similar misconduct under similar 

circumstances. However, BOP guidance states that CEOs, when acting as 

deciding officials, should be consistent with their own prior decisions at the 

same institution. This guidance advises BOP managers on how to select 

appropriate discipline, avoid the appearance of disparate treatment, and 

impose consistent penalties: 

Naturally, the law does not require rigid, mathematical 

application of penalties. However, it is presumed that like 

penalties will be imposed in like cases. Accordingly, for 

purposes of disparate treatment and consistency of the penalty 

analysis, the mere [fact] that employees were involved in similar 

misconduct yet received different penalties is insufficient to 

prove disparate treatment. The charges and circumstances 

surrounding the misconduct should be substantially similar. 

Generally, this means that: the offenses must occur within the 

same component of the agency that initiated the action e.g.,

look to offenses within the same institution or within the same 

regional office; the offenses should be compared among those 

occupying relatively similar positions of trust and responsibility, 

e.g., where the wrongdoer is a supervisor, look at other 

supervisors’ misconduct; the penalties were imposed by the 

same decision maker, e.g., the same CEO, not the former vs. 

current CEO [emphasis added]. 
 

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Therefore, the BOP does not require consistency of disciplinary decisions 

BOP-wide or even between a current and former CEO at the same 

institution. 

LMR staff told us that imposing consistent discipline is only required 

of the current CEO at each facility because that is what is necessary for 

imposed discipline to be deemed defensible if the subject appeals or grieves 

the decision to a third party. According to the MSPB: 

 

To prove a disparate treatment claim with regard to the penalty 

of an act of misconduct, an appellant must show that a 

similarly situated employee received a different penalty... . The 

comparator employee must be in the same work unit... must 

have the same supervisors... and the misconduct must be 

substantially similar.28

Because the MSPB only requires consistency if “comparison 

employees were similarly situated within the same supervisory unit,” BOP 

management stated that consistency of disciplinary decisions is only 

necessary for each CEO and not for the entire BOP. Consequently, two 

similarly situated subjects who committed similar misconduct under similar 

circumstances at different institutions of the same security level could 

receive different penalties because the subjects had different CEOs. 

Therefore, the CEOs at each of the BOP’s 113 institutions, 6 Regional 

Offices, 28 community corrections offices, 2 staff training centers, and 1 

Central Office may impose different discipline for similar misconduct and 

circumstances, as long as their disciplinary decisions are consistent with 

their prior decisions at the same institution. 

We found that BOP Wardens are assigned to an institution for an 

average of 29 months. Consequently, when a new CEO is assigned to an 

institution, a new standard is adopted for determining consistent discipline. 

Several of the HR staff we interviewed stated that when a newly appointed 

CEO did not have an established disciplinary record, they reviewed 

discipline imposed by former CEOs at the institution to ensure some level of 

consistency, although such reviews are not required by the BOP. 

Some regional HR staff stated that they reviewed disciplinary cases 

across the region in an attempt to ensure consistency and continuity. 

However, the regions did not have a systematic process for such reviews and 

did not always use reliable information to check for consistency. While 

 28 Wentz v. United States Postal Service, 91 MSPR 176, 187 (March 13, 2002). 
 

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some regions reviewed logbooks or databases, other regions relied on the 

historical knowledge of the HR staff. One region did not check for 

consistency across the region at all. In addition, although the LMR reviewed 

and approved all disciplinary and adverse action case files and related 

letters, it did not specifically review the penalties for consistency BOP-wide. 

Therefore, even though the regions and the LMR review all disciplinary 

cases and could check for consistency by region and BOP-wide, they do not. 

We attempted to determine the consistency of discipline imposed 

BOP-wide for similar charges in our sample of 85 cases.29 However, our 

sample did not include a sufficient number of cases with similar charges 

and circumstances to perform this type of consistency analysis. 

One case from our sample did raise questions about the consistency 

of the penalties imposed. The case involved an OIA investigation into the 

escape of an inmate from a hospital and included 24 subjects, the majority 

of whom were correctional officers investigated for the same charges – 

Failure to Follow Policy and Breach of Security.30 The OIA sustained the 

charges for all 24 subjects. The proposing official proposed discipline 

ranging from a 4-day suspension to an 18-day suspension. Based on the 

explanations provided in each proposal letter, the range of proposals 

appeared reasonable. 

We expected that the discipline imposed by the deciding official 

similarly would vary. First, each subject had a different number of 

specifications for each charge of misconduct, which was reflected in the 

range of days of suspension described in the proposal letter. Second, three 

subjects had prior discipline, which the proposing official asked the deciding 

official to consider when making a decision. Finally, the decision letters for 

the 24 subjects mentioned four different mitigating factors that should have 

affected the penalty.31 Nine decision letters mentioned two mitigating 

 29 In this review we examined two dimensions of consistency: 1) consistency of 

disciplinary outcomes by type of misconduct, and 2) consistency of the disciplinary process 

by selected job demographic and job characteristics. Our analysis of the second type of 

consistency is found on page 33. 

30 The investigation had a total of 27 subjects, but 2 of the subjects were charged 

with different offenses and 1 subject’s disciplinary file could not be located. These three 

subjects were not included in our analysis. 

31 The mitigating factors mentioned in the decision letters included the subject’s 

commitment to following post orders, the subject’s acknowledgment of the seriousness of 

his or her behavior, the subject’s length of employment with the BOP, and whether it was 

the subject’s first disciplinary offense. 
 

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factors, while the remaining 15 letters cited three mitigating factors. 

However, the deciding official issued a Letter of Reprimand to all 24 

subjects, and the decision letters did not clearly explain why proposed 

suspensions of varied lengths were mitigated to the same penalty. Absent 

any explanation, we concluded that the deciding official did not apply 

consistent discipline in this case. 

 

Many BOP employees believed that discipline was not consistent. 

We found that approximately 60 percent of the respondents to our e-mail 

survey believed that employees did not receive similar treatment in the 

disciplinary process based on their job title or grade level. Approximately 43 

percent of respondents believed that employees did not receive similar 

treatment based on gender or race. Table 4 shows the percentage of 

respondents who believed that BOP employees were treated differently 

according to certain demographic and job characteristics. 

Table 4: Percentage of Employee Responses 

Do you believe that BOP employees receive similar 

treatment throughout the discipline process, 

regardless of their: 

Yes No 

Job title 40.4 59.6 

Grade level 40.4 59.6 

Gender 57.0 43.0 

Race 56.6 43.4 

Source: OIG survey of BOP employees 

We asked respondents to explain why they believed employees were 

not treated consistently by job title, grade level, gender, or race. Generally, 

respondents believed that employees who were higher-graded, noncorrectional officers, white, or male received more favorable treatment than 

other BOP employees. Employees specifically stated that Wardens were not 

consistent in how they imposed discipline: 

• “I think there is a lot of inconsistencies within the CEO ranks. Some 

are harsh, some are just too lenient.” 

• “The Warden does not follow a fair pattern.” 

• “Each Warden works differently: Some are too harsh and others too 

lenient.” 

• “There [sic] has been a couple [of cases] where there wasn’t discipline, 

and I felt should have been. Therefore, the discipline imposed does 

not seem consistent.” 
 

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• “There is no consistency with penalties to offenses. One person will 

get a slap on the hand while another will get fired for the same 

offense.” 

Twenty-five employees also stated that favoritism on the part of 

management influenced discipline and that deciding officials used their 

discretion to impose discipline improperly. Examples of their comments 

are: 

• “The Warden at this institution picks and chooses who will or will not 

be disciplined.” 

• “There is rampant favortism [sic] throughout the BOP. This is still the 

‘Good Ole Boy’ system.” 

• “If you play golf with the Warden, your treatment will be different. If 

you are one of the good ole boys, your treatment will be different.” 

• “I think that it depends on who the person is and how well that 

person is liked by the people in... higher positions.” 

Seventeen employees said that discipline is inconsistently imposed 

because higher-level employees are able to transfer or retire rather than 

receive discipline, and several respondents stated that some subjects are 

actually promoted after they commit misconduct. A phrase several 

respondents cited was, “If you mess up, you move up.” Some responses 

included: 

• “Supervisors or executives are often reassigned or promoted instead of 

being disciplined.” 

• “With regard to staff in higher positions or grade levels, many staff get 

alternatives to discipline like retire or reassignment rather than face 

sanctions.” 

• “I believe that at the higher title or grade levels, an employee gets off 

much easier by a job move or dismissing the charge.” 

• Wardens, A[ssociate] W[arden]s, and other exec[utive] staff may be 

moved because of misconduct but they are not fired. I have known 

them to move to different ‘made up’ jobs and retain their pay.” 
 

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BOP data did not substantiate that the disciplinary process was 

affected by grade level, job series, gender, or race. Although 

respondents to our survey believed that BOP employees were treated 

differently in the disciplinary process by job series, grade level, gender or 

race, our analysis of the BOP data did not support this belief. We compared 

LAWPACK data to BOP population data to determine whether job series, 

grade level, gender, or race affected the disciplinary process.32 To determine 

whether differences existed for the four characteristics, we compared the 

proportion of employees who were investigated, the proportion of employees 

with sustained allegations, and the proportion of employees who were 

disciplined. Our analysis did not substantiate that the four characteristics 

affected the disciplinary process. 

Data regarding grade level. The data did not show that grade level 

was a factor in the disciplinary process. We found that approximately the 

same proportion of employees at lower grade levels (2 through 12) were 

subjects of investigations as employees at higher grade levels (13 and 

above). For closed investigations in FY 2003, 11.0 percent of employees at 

grade levels 2 through 8, 10.7 percent of employees at grade levels 9 

through 12, and 8.9 percent of employees at grade levels 13 and above were 

subjects of investigations. We also found that nearly the same proportion of 

employees in the three segments of grade levels had allegations that were 

sustained, and had sustained allegations that resulted in discipline (Table 

5).33 This data did not indicate to us that grade level affected the 

disciplinary process. 

Table 5: Effect of Grade Level on the Disciplinary Process 

Employees That 

Were 

Investigated 

Employees with 

Sustained 

Allegations 

Employees That 

GRADE Were Disciplined 

LEVEL 

Employees 

in BOP 

Population Number Percent Number Percent Number Percent 

Grade 2 - 8 19,822 2,173 11.0 1,120 51.5 784 70.0 

Grade 9 - 12 11,703 1,248 10.7 628 50.3 439 69.9 

Grade 13 and 

above 2515 225 8.9 108 48.0 71 65.7 

Source: OIG analysis of BOP data 

 32 BOP grade level and job series population data was provided by the BOP. BOP 

gender and racial population data comes from the “BOP Quick Facts,” September 2003. 

33 In all tables, the percentage of “Employees with Sustained Allegations” is of those 

employees who were investigated. The percentage of “Employees That Were Disciplined” is 

of those employees with sustained allegations. 
 

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Data regarding job series. The data also did not show that job series 

was a factor in the disciplinary process. For closed investigations in FY 

2003, a higher percentage of correctional officers (14 percent) were 

investigated compared with non-correctional officers (9 percent).34 However, 

this could be because correctional officers have significantly more contact 

with inmates, who can make more allegations than other employees. In 

contrast, a smaller percentage of correctional officers had allegations 

sustained (45 percent for correctional officers compared with 55 percent for 

non-correctional officers), which may also be consistent with the greater 

likelihood of specious allegations by inmates. Finally, a higher percentage 

of correctional officers with sustained allegations were disciplined (Table 6). 

This data did not indicate to us that job series affected the disciplinary 

process. 

 

Table 6: Effect of Job Series on the Disciplinary Process 

Employees That 

Were 

Investigated 

Employees with 

Sustained 

Allegations 

Employees That 

Were Disciplined 

JOB SERIES 

Employees 

in BOP 

Population Number Percent Number Percent Number Percent 

Correctional 

Officer 13,844 1,974 14.3 936 47.4 680 72.6 

Other 18,148 1,672 9.2 920 55.0 614 66.7 

Source: OIG analysis of BOP data

Data regarding race. The data did not show that race was a factor in 

the disciplinary process. For investigations closed in FY 2003, slightly 

higher proportions of Hispanic and black employees were the subjects of 

investigations than white employees. Approximately 13 percent of both 

Hispanic and black employees were subjects of misconduct investigations, 

compared with 9 percent of white employees. However, a smaller proportion 

of black employees had allegations that were sustained, and approximately 

the same proportion (70 percent) of employees in all three races had 

sustained allegations that resulted in discipline (Table 7). This data did not 

indicate to us that race affected the disciplinary process. 

 34 The Correctional Officer Series includes positions involving the correctional 

treatment, custody, and supervision of criminal offenders. We included all other job series 

in the “Other” category. 
 

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Table 7: Effect of Race on the Disciplinary Process 

Employees That 

Were 

Investigated 

Employees with 

Sustained 

Allegations 

Employees That 

Were Disciplined 

RACE 

Employees 

in BOP 

Population Number Percent Number Percent Number Percent 

Black 7,162 952 13.3 469 49.3 329 70.1 

Hispanic 3,725 503 13.5 269 53.5 187 69.5 

White 21,937 2,045 9.3 1,036 50.7 729 70.4 

Source: OIG analysis of BOP data 

Data regarding gender. The data did not show that gender was a 

factor in the disciplinary process. As a percentage of their appearance in 

the BOP population, female employees were investigated at a lower rate (8.0 

percent) than male employees (11.8 percent). However, a smaller proportion 

of male employees (49.8 percent) had allegations that were sustained, 

compared with female employees (55.2 percent). Finally, approximately 10 

percent more male employees had sustained allegations that resulted in 

discipline, as compared with female employees (Table 8). This data did not 

indicate to us that gender affected the disciplinary process. 

Table 8: Effect of Gender on the Disciplinary Process 

Employees That 

Were 

Investigated 

Employees with 

Sustained 

Allegations 

Employees That 

Were Disciplined 

GENDER 

Employees 

in BOP 

Population Number Percent Number Percent Number Percent 

Female 9,584 765 8.0 422 55.2 263 62.3 

Male 24,438 2,881 11.8 1,434 49.8 1,034 72.1 

Source: OIG analysis of BOP data 
 

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TIMELINESS OF THE DISCIPLINARY SYSTEM 

The BOP did not consistently report, investigate, and 

adjudicate employee misconduct cases in a timely manner. 

BOP management did not report allegations of employee 

misconduct to the OIA within the required time frames. In 

addition, the OIA failed to report allegations to the OIG 

within the required time frames. The BOP has not 

established written standards for measuring the timeliness 

of either the investigative or adjudicative phases of the 

disciplinary system. Using the informal time frames 

reported by BOP management, we found that OIA 

investigations of employee misconduct were completed in a 

timely manner, but local investigations were not. The BOP 

also did not adjudicate disciplinary cases in a timely 

manner. BOP employees criticized the timeliness of the 

disciplinary process. Finally, our review revealed instances 

in which the delays in the disciplinary system negatively 

affected the final discipline imposed. 

We examined data from our sample of 85 investigative files to 

determine the BOP’s timeliness in referring misconduct allegations to the 

OIA. We found that management did not refer misconduct allegations to the 

OIA within required time frames. 

• Sixty-eight percent (45 of the 66) of Classification I and II cases were 

not reported to the OIA within 24 hours after management became 

aware of the misconduct allegation as BOP policy requires. The 

average reporting time for these 45 cases was 16 days, and one case 

was not reported for 106 days. 

• BOP management was more consistent in reporting Classification III 

cases to the OIA within the required 30 days. Only 1 of 19 

Classification III cases was not reported to the OIA within the required 

30 days. 

We examined the OIA’s LAWPACK database to evaluate OIA’s 

timeliness in referring Classification I and II allegations to the OIG in FY 

2003. For those cases involving BOP employees, we found that: 

• Twenty-five percent (160 of 628) of Classification I allegations were 

not reported to the OIG within 24 hours as required. The OIA took an 
 

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average of 3.6 days to refer Classification I allegations to the OIG.35 

Table 9 shows the number of days it took for the OIA to report 

Classification I allegations to the OIG. 

Table 9: OIA Reporting of Classification I Cases to the OIG 

Number of days for OIA to report 

Classification I allegation to OIG 

Number of 

allegations reported

Percentage of 

allegations reported

1 day or less 357 56.8 

2 – 7 days 145 23.1 

8 – 14 days 8 1.3 

More than 14 days 7 1.1 

Unknown 111 17.7 

Source: OIG analysis of BOP data 

• Twenty-two percent (226 of 1,047) of Classification II cases were not 

reported within the required 48 hours. The OIA took an average of 4.5 

days to refer Classification II cases to the OIG. Table 10 shows the 

number of days it took for the OIA to report Classification I allegations 

to the OIG. 

Table 10: OIA Reporting of Classification II Cases to the OIG 

Number of days for OIA to report 

Classification I allegation to OIG 

Number of 

allegations reported

Percentage of 

allegations reported

2 days or less 675 64.5 

3 – 7 days 159 15.2 

8 – 14 days 25 2.4 

More than 14 days 42 4.0 

Unknown 146 13.9 

Source: OIG analysis of BOP data 

An OIA official asserted that the delays in reporting to the OIG could 

be partially attributed to an influx of cases during certain time frames, 

which may affect overall workload, or a recent change in OIA review and 

referral procedures. 

The BOP has not established written time frames for the 

investigation and adjudication of misconduct allegations. Because 

there are no written time frames, we asked BOP officials what they 

considered to be appropriate time frames for the investigation and the 

 35 According to the “OIA Report for Fiscal Year 2003,” of the 4,193 cases opened, 

788 were Classification I and 1,287 were Classification II cases. The difference between 

these numbers and the total reported in the text above occurred because we analyzed only 

cases opened in FY 2003 involving BOP subjects for whom data was available. We did not 

analyze Classification III cases because of a lack of data. 
 

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adjudication of misconduct cases. We based our analysis of timeliness on 

these informal time frames provided by BOP management. While OIA 

investigators generally completed investigations of employee misconduct 

within the informal time frames set by OIA management, local investigators 

did not. In addition, the adjudication of misconduct cases exceeded the 

informal time frames provided by LMR officials. While the OIA and LMR 

record some date information, they do not use this information to analyze or 

measure timeliness. 

According to the OIA Chief, investigations conducted by OIA 

investigators should be completed within 90 days and local investigations 

conducted at the institutions should be completed within 60 days.36 Our 

analysis of the 85 case files in our sample found that the average time it 

took for OIA investigators to complete their investigations was 84 days, less 

than the informal time frame of 90 days. However, the average time it took 

local investigators at the institutions to complete an investigation was 103 

days, 43 days longer than the OIA’s informal 60-day time frame (Table 11).37

Table 11: Average Number of Days to Complete Investigations 

Type and Number of 

Investigations 

Informal Time Frame Average Number of Days 

to Complete Investigation

OIA (17) 90 days 84 

Local (68) 60 days 103 

Source: OIG analysis of BOP data 

It should be noted that the averages above exclude the additional 

investigative work of external law enforcement entities that were required in 

certain cases. In our sample of 85 cases, Federal Bureau of Investigation 

(FBI), OIG, or local law enforcement were involved in 10 cases (e.g., OIG 

assistance with polygraphs). We did not determine how much external law 

enforcement activity extended the total time spent on each investigation. 

 36 In the OIG’s previous reviews of Department disciplinary systems, we noted that 

the U.S. Marshals Service has a standard of 90 days for completing its investigations of 

employee misconduct, and the Drug Enforcement Administration has a standard of 180 

days. 

37 For investigations completed by the OIA, the process began when the OIG 

referred the case back to the OIA and ended when the OIA Chief signed the completed 

investigation. Data was available for 12 of the 17 investigations conducted by the OIA. For 

investigations completed by local investigators, this process began when the OIA (cont’d) 

authorized a local investigation and ended when the Warden signed the completed 

investigative report. Data was available for 39 of the 68 investigations conducted by local 

investigators. We did not include any of the 17 Classification III cases in this analysis 

because the local investigators do not need authorization from the OIA before beginning 

these investigations. 
 

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In addition, the BOP had no written standards for assessing whether 

institutions, Regional Offices, or the LMR adjudicated misconduct cases in a 

timely manner. According to the Assistant Chief of LMR, a range of 60 to 70 

days to adjudicate a disciplinary action case and a range of 75 to 90 days to 

adjudicate an adverse action case are acceptable time frames. 

For the 92 subjects with sustained allegations in our sample, the 

adjudicative phase took an average of 97 days for disciplinary actions and 

110 days for adverse actions (Table 12). 

Table 12: Average Number of Days to Complete Adjudication 

Segment of Adjudicative 

Process* 

Days to Adjudicate 

Adverse Actions 

Days to Adjudicate 

Disciplinary Actions 

Date the investigative report was 

signed to date the proposal letter 

was signed 53 69 

Date the proposal letter was 

signed to date the decision letter 

was signed 57 28 

Average Number of Days to 

Complete Adjudication 110 97 

Source: OIG analysis of BOP data 

*Seventy subjects in our sample received disciplinary actions and six subjects in our 

sample received adverse actions. (Because of the small number of subjects in our sample 

who received adverse actions, we cannot conclude that the observed delays for adverse 

actions were typical.) Our analysis does not include data for 12 subjects for whom no 

disciplinary action was taken and 4 subjects who either retired or resigned. 

The averages resulting from our sample reveal that adverse action 

cases exceeded the informal time frame established by the LMR by an 

average of 20 days. Disciplinary cases exceeded LMR’s time frame by an 

average of 27 days. We asked an LMR official why these delays might have 

occurred. The LMR official stated that delays in the first part of the process 

could be due to time needed to make revisions to the proposal letter at the 

Regional Office or LMR or to resolve disagreements among the institution, 

Regional Office, and LMR regarding the type of penalty to be imposed. 

Delays in the second part of the process may have resulted from the subject 

requesting extensions in providing an oral or written response to the 

deciding official. 

 

BOP employees we surveyed were critical of the delays in the 

disciplinary process. Approximately 43 percent of the BOP employees who 

stated that they were involved in or aware of misconduct investigations 

believed that these investigations were not timely. Approximately 
 

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34 percent who stated they were aware of investigations that resulted in 

discipline believed that the adjudication of discipline was not timely. 

Employees cited cases that lasted one to two years, including some cases 

that continued for four or five years. They acknowledged that some lengthy 

investigations were justified, given the complexity or number of allegations 

involved. However, the BOP employees could not understand why relatively 

minor offenses extended beyond what they perceived to be a reasonable 

amount of time. 

Employees commented on how lengthy disciplinary decisions 

adversely affected employee morale and career progression. They referred to 

instances in which subjects of an investigation were assigned to “home 

duty” status for one to two years while waiting for a decision.38 They also 

cited examples of employees under investigation who were denied 

promotions or declared ineligible for awards. The following were 

representative employee comments on the effect of lengthy disciplinary 

decisions on morale: 

• “Because I know employees who have been under investigation for 

YEARS, yes that is plural, years for one allegation... In my opinion, 

that is not only absolutely ridiculous, but it hurts morale worse than 

just about any situation that I can think of... . Furthermore, 

employees who are under investigation, are not allowed to transfer, or 

be promoted.” 

• “Staff members are removed from their regular posts and remain in 

‘special’ posts for extended periods of time, months until a decision is 

made on their disposition.” 

• “It does not appear to be a priority of the investigators to complete a 

misconduct investigation in a timely manner. This lack of timeliness 

gives the staff involved in an investigation (either as witnesses or 

subjects) the impression that their value as workers, their reputation, 

their dignity are not important enough to BOP management to 

facilitate the process.” 

 38 Home duty is a temporary duty status of a staff member at his or her residence. 

It generally occurs when the agency has a need to have the employee away from the 

institution or facility for security or other reasons. It is similar to administrative leave, with 

the exception that the employee on home duty must remain in an approved location during 

his/her regular duty hours. Department officials must approve home duty lasting more 

than 10 days. 
 

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• “I recently witnessed a supervisor go for approximately 6 months 

between the time he was accused of misconduct until he was placed 

back into his position. During that time he was assigned to work the 

phone room, helped in the welding shop, etc. The whole process was 

an extremely humiliating time for him.” 

Deciding officials, in responding to a separate survey, also commented 

on the negative effect of delays in completing discipline cases. When asked 

how they would improve the disciplinary system, the deciding officials 

identified improving timeliness as the first priority. Their suggestions 

included: 

• Removing a step from the adjudicative phase (regional review); 

• Addressing the delays at the Regional and Central Offices due to the 

“many reviews” performed; 

• Requiring time frames for completion of investigations; 

• Implementing “due dates” for regional and LMR review of proposal and 

decision letters; 

• Addressing the delays in OIA investigations and subsequent reports, 

as well as delays encountered with OIA and OIG referrals; and 

 

• Implementing training for deciding officials six months prior to their 

appointment. 

Delays negatively affected the discipline imposed. In addition to 

the other negative effects associated with untimely disciplinary decisions, we 

identified at least three cases in which the proposed discipline was mitigated 

because of the extended time spent processing the cases. 

The first case involved a charge of Unprofessional Conduct in which a 

staff member was overheard using profane and threatening language toward 

another BOP employee. The discipline was mitigated from a proposed 5-day 

suspension to a Letter of Reprimand. According to written comments 

obtained from LMR, “Because of... the length of time it took to complete the 

investigation of [the employee’s] work record, a letter of reprimand was 

issued in lieu of the proposed 5 day sanction.” 

The second case involved a Health Services Administrator investigated 

for Unacceptable Performance of Assigned Duties. The BOP sought removal 
 

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in a December 2002 proposal letter, and the employee was subsequently 

assigned to work escort duty while the case was adjudicated. The employee 

provided an oral response to the proposal letter in March 2003, but no 

additional action was taken in the case until October 2003. The LMR did 

not approve the decision letter because, according to written comments 

obtained from LMR, “there is no justification for the delay.” No disciplinary 

action was taken as a result. 

The third case involved an arbitration hearing in which the imposed 

discipline was overturned because of the length of time between the date of 

the incident and the date when discipline was imposed. The following text 

box details the case’s history. 
 

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CASE STUDY: The Need for Timely Case Disposition 

This local investigation involved a correctional officer who failed to lock an 

inner door in the Special Housing Unit at a Federal Correctional Institution. 

The investigation consisted primarily of taking brief statements from four 

employees, all at the same site, with the facts largely uncontested. The 

subject immediately took responsibility and acknowledged that he violated 

post orders. However, the investigators did not formally interview the subject 

until three months after taking affidavits from the relevant witnesses. The 

following is a chronology of the events in the case: 

• December 1, 2000 – The misconduct occurred. 

• March 12, 2001 – Investigators completed the investigation and 

sustained the charge. 

• December 21, 2001 – Proposing official proposed one-day suspension. 

• January 17, 2002 – Deciding official imposed one-day suspension. 

• February 5, 2002 – Subject served one-day suspension. 

On March 1, 2002, the subject grieved the suspension. The BOP’s position 

was that the Master Agreement between BOP and the employee union did not 

establish a specific time frame for conducting investigations and that a more 

pressing investigation took priority.* The union countered that the language 

in the Master Agreement stated “the parties endorse the concept of timely 

disposition of investigations and disciplinary/adverse actions,” and that 

nothing could “adequately explain the extraordinary delay.” 

According to the arbitrator who handled this case, because the employee 

was “being categorically bypassed for positions for which he is best qualified 

precisely because the charges are pending, then clearly he is being prejudiced 

by a delay in the disposition of those charges.” The arbitrator stated that 

while the Master Agreement “does not provide a specific definition of ‘timely 

disposition,’ in the abstract no reasonable construction of that phrase can 

characterize a disposition after fourteen months as timely.” The arbitrator 

determined that the BOP violated the Master Agreement by suspending the 

subject in January 2002 for an event that occurred in December 2000 and 

rescinded the one-day suspension. The officer was reimbursed for lost wages 

resulting from the suspension. 

* The Master Agreement is a collective agreement between the BOP and its 

employee representative, the Council of Prison Locals and the American Federation of 

Government Employees. 
 

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CONCLUSION AND RECOMMENDATIONS 

CONCLUSION 

An equitable disciplinary system provides reasonable, consistent, and 

timely discipline for all employees. By addressing the issues identified in 

this report, we believe that the BOP can better ensure that its disciplinary 

decisions meet these basic goals. 

 

BOP disciplinary decisions sometimes did not appear to be 

reasonable. First, for some cases with serious sustained allegations, the 

CEOs unilaterally took no disciplinary action or imposed informal discipline 

without fully adjudicating the cases or documenting their reasons for taking 

these actions. Second, some penalties did not appear reasonable when the 

CEOs, in their role as deciding officials, mitigated proposed discipline 

without adequately explaining their reasons in the decision letter as 

required. Third, CEOs review and have the opportunity to influence 

investigation reports for cases in which they also act as the deciding 

officials. This can compromise the independence of the investigative and 

adjudicative phases of the BOP disciplinary process and create the potential 

for unreasonable outcomes. 

 

In addition, BOP guidance instructs CEOs to impose similar penalties 

for similar misconduct and circumstances at each institution. However, the 

BOP does not require that employees in comparable facilities receive similar 

penalties for similar infractions. Instead, the BOP requires only that the 

CEOs, as deciding officials in each of its facilities, be consistent with their 

own prior decisions, because that is the level of consistency that is required 

for the MSPB to sustain the agency’s disciplinary decisions if the employee 

appeals. Notwithstanding the MSPB requirements, an equitable disciplinary 

system should ensure that all BOP employees receive substantially similar 

discipline for similar infractions. 

 

Finally, the BOP did not consistently process employee misconduct 

cases in a timely manner. The BOP did not report allegations of employee 

misconduct to the proper authorities within the required time frames. In 

addition, the BOP has not established written standards for measuring the 

timeliness of the investigative or adjudicative phases of its disciplinary 

system. 
 

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RECOMMENDATIONS 

We make ten recommendations to help the BOP ensure that its 

disciplinary decisions are reasonable, consistent, and timely. The 

recommendations focus on ensuring that the investigative and adjudicative 

phases of the disciplinary system function independently and that sustained 

misconduct allegations are fully adjudicated; the reasons for mitigating 

discipline are adequately documented; BOP employees receive similar 

penalties for similar infractions BOP-wide; misconduct cases are 

investigated and adjudicated in a timely manner; and that the BOP develops 

controls to monitor disciplinary decisions for consistency throughout the 

BOP. 

We recommend that the BOP: 

1. Reinforce the existing policy that BOP employees report 

allegations of employee misconduct to the proper authorities as 

required. 

2. Require that CEOs forward cases with sustained allegations 

through the full adjudicative phase. 

3. Ensure that when the deciding official mitigates the proposed 

discipline, the decision letter contains an adequate explanation of 

the reasons. 

4. Remove the CEOs from reviewing and approving investigative 

reports of employee misconduct for cases in which they will act 

as the deciding official by implementing an alternative review 

process that preserves the independence of the investigative and 

adjudicative phases. 

5. Reinforce the existing policy that all required documents be 

maintained in the disciplinary files. 

6. Develop procedures to ensure that discipline is imposed 

consistently BOP-wide, and review discipline for consistency 

across the agency periodically after these procedures are 

implemented. 

7. Reinforce the existing policy that CEOs report allegations of 

employee misconduct to the OIA within required time frames. 
 

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8. Reinforce the existing policy that the OIA reports misconduct 

allegations to the OIG within required time frames. 

9. Establish written time guidelines for the investigative and 

adjudicative phases of the disciplinary system. 

10. Require that the BOP Program Review Division periodically review 

a sample of closed disciplinary case files to assess whether the 

disciplinary decisions were reasonable, consistent, and timely. 
 

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APPENDIX I: THE DOUGLAS FACTORS 

In Douglas v. Veterans Administration (1981), the Merit Systems 

Protection Board (MSPB) identified 12 relevant factors that agency 

management needs to consider and weigh in deciding an appropriate 

disciplinary penalty. The Douglas factors are: 

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 ability to perform assigned duties; 

6. Consistency of the penalty with those imposed upon other 

employees for the same or similar offenses; 

7. Consistency of the penalty with the applicable agency table of 

penalties (which are not to be applied mechanically so that other 

factors are ignored); 

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; 

10. The potential for employee’s rehabilitation; 
 

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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. 
 

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APPENDIX II: CONFIDENCE INTERVALS FOR EMPLOYEE 

SURVEY 

As mentioned in the “Purpose, Scope, and Methodology” section, we 

surveyed a sample of 441 BOP employees out of a population of 

approximately 33,600. Sixty-two percent (275 of 441) responded. In our 

findings sections, we cite the percentage of employees having certain 

opinions. The precision of our estimates about these opinions, based on a 

95 percent confidence level, is shown below. The calculations were 

computed using standard statistical formulas for a simple random sample. 

Table 13: Investigations of Employee Misconduct 

Page Where 

Statement 

Is Located 

Survey Statement Percentage 

95% 

Confidence 

Interval 

14 Employees have read the Standards of 

Employee Conduct. 91.64 ±3.26 

14 

Employees are aware of the BOP’s 

requirements for reporting employee 

misconduct. 

96.36 ±2.20 

14 

Employees who witnessed employee 

misconduct did not always report it to 

proper authorities. 

41.18 ±11.69 

14 Employees do not believe their fellow 

employees always report misconduct. 66.05 ±5.62 

16 Investigations are thorough. 73.53 ±7.40 

16 Investigations are not thorough. 26.47 ±3.26 

Source: OIG analysis of BOP data

Table 14: Reasonableness of Disciplinary System 

Page Where 

Statement 

Is Located 

Survey Statement Percentage 

95% 

Confidence 

Interval 

27 Discipline is not appropriate. 26.15 ±7.54 

27 Discipline is too lenient. 16.92 ±6.43 

Source: OIG analysis of BOP data
 

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Table 15: Consistency of Disciplinary System 

Page Where 

Statement 

Is Located 

Survey Statement Percentage 

95% 

Confidence 

Interval 

31 Employees are treated differently 

according to their job title. 59.63 ±7.56 

31 Employees are treated differently 

according to their grade level. 59.62 ±7.68 

31 Employees are treated differently 

according to their gender. 43.05 ±7.88 

31 Employees are treated differently 

according to their race. 43.42 ±7.86 

Source: OIG analysis of BOP data

Table 16: Timeliness of Disciplinary System 

Page Where 

Statement 

Is Located 

Survey Statement Percentage 

95% 

Confidence 

Interval 

39 Misconduct investigations are not 

handled in a timely manner. 42.57 ±7.95 

40 Adjudication of discipline is not timely. 33.59 ±8.07 

Source: OIG analysis of BOP data
 

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APPENDIX III: BOP’S RESPONSE TO THE DRAFT REPORT 

 
 

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APPENDIX IV: OIG ANALYSIS OF BOP’S RESPONSE 

On August 17, 2004, the Office of the Inspector General (OIG) sent 

copies of the draft report to the Director of the Federal Bureau of Prisons 

(BOP) with a request for written comments. The Director provided the final 

written comments to us in a memorandum dated September 15, 2004. 

The BOP fully concurred with seven of the ten recommendations and 

generally concurred with two other recommendations, but expressed “strong 

reservations as to [the] implementation” of the remaining recommendation. 

This recommendation called for the removal of the Chief Executive Officer 

(CEO) from reviewing and approving investigative reports of employee 

misconduct for cases in which the CEO also would act as the deciding 

official. The OIG made this recommendation to help ensure the 

independence of the investigative and adjudicative phases of the disciplinary 

process and to reduce the potential for unreasonable disciplinary decisions. 

The BOP stated that it would prefer to “explore and possibly pilot alternative 

review processes.” However, it remains the OIG’s position that independent 

investigative and adjudicative phases are crucial to maintaining the checks 

and balances essential to an effective disciplinary system. The BOP needs 

to implement an alternative review process in which the CEOs do not both 

review and approve investigations as well as act as the deciding official. 

Following is an analysis of each BOP response to the report’s ten 

recommendations. 

RECOMMENDATIONS 

Recommendation 1: Reinforce the existing policy that BOP employees 

report allegations of employee misconduct to the proper authorities as 

required. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP concurred with this 

recommendation. The BOP will incorporate this finding and 

recommendation in the next annual training cycle and other training 

programs that discuss ethics and standards of conduct. In addition, the 

Office of Internal Affairs (OIA) is developing a training video that will address 

this finding. 

OIG’s Analysis: The actions described by the BOP are responsive to 

our recommendation. By December 1, 2004, provide the training materials 
 

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that show how the finding and recommendation will be incorporated into 

future training sessions or a status report on when the materials will be 

completed. In addition, by December 1, 2004, provide a copy of the OIA 

training video or a status report on when it will be completed. 

 

Recommendation 2: Require that CEOs forward cases with sustained 

allegations through the full adjudicative phase. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP concurred with this 

recommendation. The BOP plans to publish instructions for all CEOs 

requiring each sustained misconduct case to be fully adjudicated. However, 

the BOP is allowing an exception to this requirement. The CEOs will have 

the option of selecting sustained cases that, in their opinion, do not warrant 

disciplinary or adverse action. These cases, along with the CEO’s 

justification for this action, will be submitted to the Labor Management 

Relations Branch (LMR) for its review. The BOP response also indicated 

that the LMR, after completing its case review, will recommend to “Bureau 

management” whether disciplinary or adverse action is warranted or will 

recommend that the case be resolved through performance evaluation 

procedures. 

OIG’s Analysis: The actions described by the BOP are responsive to 

our recommendation. However, we believe that the instructions to the 

CEOs implementing this recommendation must be comprehensive. For 

example, the instructions should identify by position the “Bureau 

management” official(s) who will review the LMR recommendations. 

Further, the instructions should specify that the “Bureau management” 

official(s), and not the CEO who initiated the review, will make the final 

decision on whether or not a case will be fully adjudicated. Finally, similar 

instructions need to be issued to the LMR, given its expanded role in this 

revised review process. By December 1, 2004, provide copies of the CEO 

and LMR instructions or a status report on the progress of their completion. 

Recommendation 3: Ensure that when the deciding official mitigates the 

proposed discipline, the decision letter contains an adequate explanation of 

the reasons. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP concurred with this 

recommendation. The BOP will issue a reminder to all parties involved with 

the preparation and technical approval of disciplinary and adverse action 
 

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letters that adequate explanations involving mitigation must be 

documented. 

OIG’s Analysis: The actions described by the BOP are responsive to 

our recommendation. By December 1, 2004, provide a copy of the formal 

reminder or a status report on when it will be completed. 

Recommendation 4: Remove the CEOs from reviewing and approving 

investigative reports of employee misconduct for cases in which they will act 

as the deciding official by implementing an alternative review process that 

preserves the independence of the investigative and adjudicative phases. 

Status: Unresolved 

Summary of BOP’s Response: The BOP stated that while this 

recommendation needed to be explored, it had strong reservations as to its 

implementation. The BOP also asked that the OIG consider rewording the 

recommendation to state: Explore alternative review processes that preserve 

the independence of the investigative and adjudicative phases. The BOP 

response further stated that it wants to “explore and possibly test 

alternative processes” because any meaningful departure from the current 

method would require: 1) a major realignment of existing functions, 2) a 

concurrent investment in staffing numbers when the BOP is facing potential 

downsizing issues, and 3) a significant shift in the authority structure over 

local investigations. The BOP stated that any attempt to implement this 

recommendation will require “much additional research and thought.” 

OIG’s Analysis: The actions described by the BOP are partially 

responsive to our recommendation. The OIG has taken into account the 

concerns that the BOP presented above. However, the CEOs’ involvement in 

both the investigative and adjudicative phases of a disciplinary system can 

affect the independence of the two phases and the overall disciplinary 

system. The OIG does not believe it is appropriate to change the 

recommendation, and the recommendation is unresolved. By November 1, 

2004, provide a plan and schedule for how the BOP will explore and test an 

alternative investigative review process that leads to final implementation of 

a policy for ensuring the independence of the investigative and adjudicative 

phases. 

Recommendation 5: Reinforce the existing policy that all required 

documents be maintained in the disciplinary files. 

Status: Resolved - Open 
 

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Summary of BOP’s Response: The BOP concurred with this 

recommendation. The BOP will provide a memorandum to the field 

reinforcing the requirement that all documents used to support disciplinary 

actions be maintained in the appropriate files. Also, the BOP stated that 

this issue will be reviewed when program reviews are conducted at 

institutions and facilities. 

OIG’s Analysis: The actions planned by the BOP are responsive to 

our recommendation. By December 1, 2004, provide a copy of the 

memorandum and the instructions developed to assess this issue during 

internal program reviews or a status report on when the memorandum and 

the instructions will be completed. 

Recommendation 6: Develop procedures to ensure that discipline is 

imposed consistently BOP-wide, and review discipline for consistency across 

the agency periodically after these procedures are implemented. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP concurred “with the position 

that discipline imposed should be consistent assuming all facts are the 

same, including position and security level of the institution.” 

The BOP stated it would take the following actions to address the 

recommendation. The BOP will: 1) review prior case law and actions taken 

to assess the appropriate range of penalties for specific charges, 

2) review the need to modify its Table of Penalties to ensure that penalties 

fall within the national range, 3) complete a formal review of past 

misconduct cases to determine the appropriate range of penalties for a given 

charge, and 4) develop procedures to ensure that each sanction is reviewed 

for consistency by LMR and Regional Human Resources staff. 

OIG’s Analysis: The actions planned by the BOP are responsive to 

our recommendation. The OIG does not suggest that “exact consistency” 

should be the goal or can ever be achieved, because of unique factors that 

apply to each case. In our report, we describe consistency as being attained 

when similar discipline is imposed for similar misconduct and 

circumstances on a BOP-wide basis. By December 1, 2004, provide: 1) the 

results of the review of prior case law and actions to assess the appropriate 

range of penalties for specific charges, 2) the review of the need to modify 

the Table of Penalties, 3) a copy of the formal review of past misconduct 

cases for determining the appropriate range of penalties for a given charge, 

and 4) a copy of the procedures ensuring that each sanction is reviewed for 

consistency by LMR and Regional Human Resources staff, or a status report 

on when each of the documents will be completed. 
 

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Recommendation 7: Reinforce the existing policy that CEOs report 

allegations of employee misconduct to the OIA within required time frames. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP concurred with this 

recommendation. The BOP will issue a “Blue Letter” reinforcing existing 

policy. In addition, the BOP will incorporate this finding and 

recommendation in future Wardens’ conferences and New Wardens’ 

Training. 

OIG’s Analysis: The actions planned by the BOP are responsive to 

our recommendation. By December 1, 2004, provide a copy of the Director’s 

Blue Letter or a status report on when it will be issued. 

Recommendation 8: Reinforce the existing policy that the OIA report 

misconduct allegations to the OIG within required time frames. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP concurred with this 

recommendation. The BOP stated that it has completed a realignment of 

staff functions resulting in the improved timeliness of referrals to the OIG. 

OIG’s Analysis: The actions taken by the BOP are responsive to our 

recommendation. By December 1, 2004, provide documentation detailing 

the realignment of functions and how it has improved timeliness. 

Recommendation 9: Establish written time guidelines for the investigative 

and adjudicative phases of the disciplinary system. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP generally concurred with 

this recommendation. However the BOP had reservations and proposed an 

alternative. The BOP stated that three issues need to be considered before 

it would accept the recommendation as stated. The first issue is the 

impossibility of anticipating the unique factors that can occur in a case and 

impede the case’s progress. The second issue is the “potential risks” and 

“land mines” posed by the formal establishment of time guidelines when 

defending disciplinary actions. The third issue is the role that participating 

outside law enforcement entities and courts can have on the timeliness of a 

case. As a result of these issues, the BOP proposed its own internal time 
 

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“expectations” for investigative work. The upper limits would be 120 days 

for local investigations and 180 days for OIA investigations. The BOP also 

said that it would establish an upper limit for completing the adjudication of 

misconduct cases at 120 days. 

OIG’s Analysis: The actions planned by the BOP are responsive to 

our recommendation. The upper limits proposed appear reasonable as a 

starting point to measure and evaluate its current capacity to investigate 

and adjudicate misconduct cases more efficiently. Other Department 

entities reviewed by the OIG either had in place or as a result of OIG 

recommendations implemented similar time frames. By December 1, 2004, 

the BOP should provide the guidance it will issue to local investigators and 

Human Resources staff at institutions and facilities, the Human Resources 

staff at Region offices, and OIA and LMR staff that details the establishment 

and application of these time frames, or a status report on when the 

guidance will be completed. 

Recommendation 10: Require that the BOP Program Review Division 

periodically review a sample of closed disciplinary case files to assess 

whether the disciplinary decisions were reasonable, consistent, and timely. 

Status: Resolved - Open 

Summary of BOP’s Response: The BOP concurred with this 

recommendation. The BOP stated that it will revise its Program Review 

Guidelines to include a review of closed disciplinary case files. The target 

date for implementation is December 31, 2004. 

OIG’s Analysis: The actions taken by the BOP are responsive to our 

recommendation. By December 1, 2004, provide a copy of the revised 

Program Review Guidelines or a status report on when the revision will be 

completed.