Special Report - ICE 

Should Document Its 

Process for Adjudicating 

Disciplinary Matters 

Involving Senior Executive 

Service Employees 

July 20, 2020 

OIG-20-54 
July 20, 2020 
 

 

 

 

 

DHS OIG HIGHLIGHTS

ICE Should Document Its Process for 

Adjudicating Disciplinary Matters Involving

Senior Executive Service Employees 
 

July 20, 2020 

Why We Did This

Special Review 

We conducted a review of 

U.S. Immigration and 

Customs Enforcement’s (ICE) 

policies and procedures 

regarding Senior Executive 

Service (SES) employee 

discipline. We undertook this 

review after receiving an 

allegation that a former ICE 

SES official received favorable 

treatment during disciplinary 

proceedings. 

What We 

Recommend 

We made one 

recommendation aimed at 

enhancing fairness and 

integrity in ICE’s disciplinary 

program. 

For Further Information: 

Contact our Office of Public Affairs at 

(202) 981-6000, or email us at 

DHS-OIG.OfficePublicAffairs@oig.dhs.gov 

What We Found 

We found that ICE does not follow its written 

policy when conducting disciplinary reviews of 

SES employees. This practice risks creating 

an appearance that SES employees receive 

more favorable treatment than non-SES 

employees. 

We reviewed the disciplinary proceedings of a 

former ICE SES official to evaluate whether 

ICE’s deviation from the written policy, or any 

other evidence, in that case indicated that the 

employee received favorable treatment, as 

alleged. We did not find evidence of actual 

favoritism or inappropriate influence in the 

employee’s disciplinary or security clearance 

review processes. 

ICE Response 

ICE concurred with our recommendation. 

Prior to our issuing this final report, ICE took 

action to resolve and close our 

recommendation. 

www.oig.dhs.gov OIG-20-54 
 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Background 

Federal employees are expected to maintain high standards of conduct, and 

agencies are expected to discipline employees who do not meet those 

standards. When agencies do not effectively address misconduct, it can hurt 

the agency’s mission and employee morale and productivity. 

U.S. Immigration and Customs Enforcement (ICE) has a series of policies 

designed to ensure accountability among its employees. For example: 

x 	 The Employee Code of Conduct “set[s] forth general standards of 

conduct” that all employees are expected to follow. 

x 	 The Table of Offenses and Penalties identifies the most common types of 

misconduct and provides suggested ranges of penalties for each. 

x 	 The Discipline and Adverse Action Operating Procedures (DAAP) 

establishes “the standard process for administering all discipline and 

adverse actions” for ICE employees. 

In combination, the Code of Conduct tells ICE employees how to “maintain the 

highest standards of integrity and professionalism” required of them, and the 

DAAP and Table of Offenses and Penalties promote “fairness and consistency” 

when employees do not meet those standards. With limited exceptions, all 

three policies expressly apply to all ICE employees. 

The need for accountability, fairness, and consistency is even greater when 

members of the Senior Executive Service (SES), the leaders of the Federal 

workforce, commit misconduct. Employees often follow the example of their 

managers and senior leadership, and if they do not believe their leaders are 

held accountable for misconduct, employees may engage in similar behavior. 

Therefore, the U.S. Department of Homeland Security Office of Inspector 

General (OIG) conducted a review of ICE’s policies and procedures regarding 

SES employee discipline. We undertook this review after receiving an 

allegation that a former ICE SES official (the Employee) received favorable 

treatment during disciplinary proceedings. 

Results of Review 

We found that ICE does not follow its written policy when conducting 

disciplinary reviews of SES employees. This practice risks creating an 

appearance that SES employees receive more favorable treatment than nonSES employees. We reviewed the disciplinary proceedings of the Employee to 

evaluate whether ICE’s deviation from the written policy, or any other evidence, 

www.oig.dhs.gov 2 OIG-20-54 
 

 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

in that case indicated that the Employee received favorable treatment, as 

alleged. We did not find evidence of actual favoritism or inappropriate 

influence in the Employee’s disciplinary or security clearance review processes. 

ICE Does Not Follow Its Written Policy When Appointing Officials to 

Adjudicate SES Disciplinary Proceedings 

The DAAP explicitly “applies to all ICE Programs, except for Bargaining Unit 

Personnel and Personnel within the Office of the Principal Legal Advisor.” 

Despite this clear statement, attorneys in ICE’s Office of the Principal Legal 

Advisor (OPLA) told DHS OIG the DAAP does not apply to ICE SES employees. 

In particular, OPLA officials noted they do not follow the DAAP when 

appointing the Proposing and Deciding Officials in SES disciplinary cases.2 

Under the DAAP, the Discipline and Adverse Action Panel (the Panel) serves as 

the Proposing Official. If the Panel recommends a penalty, the head of the 

employee’s office serves as the Deciding Official. This “ensures that ultimate 

accountability remains within the employee’s chain of command.” The DAAP 

does not address recusals of disciplinary officials. 

OPLA officials told us the Panel is not involved in SES disciplinary cases. 

According to a senior OPLA official, this is because the Panel typically consists 

of GS-14 and GS-15 employees, and ICE considers it inappropriate for those 

employees to evaluate potential discipline for more senior employees, who in 

some cases, could be in the Panel members’ chain of command. Instead, an 

SES employee’s first-line supervisor replaces the Panel as the Proposing 

Official, and the employee’s second-line supervisor replaces the employee’s 

office head as the Deciding Official. The chain of command can also be 

recused, in which case ICE will name other management officials outside of the 

chain of command to be the Proposing Official and Deciding Official. 

A senior OPLA official told us, and ICE data appears to confirm, that ICE has 

followed this process for SES disciplinary cases since at least 2011. Since 

2011, there have been three disciplinary reviews of SES employees that 

involved Proposing Officials, and all used a single Proposing Official rather than 

the Panel.3 In one case, the Proposing Official was a senior official in the 

 2 The Proposing Official considers the evidence, determines potential charges of misconduct, 

and recommends penalties. After the Proposing Official issues a Notice of Proposal, the 

Deciding Official considers the proposal, the employee’s reply to the proposed action, ICE’s 

Table of Offenses and Penalties, and any mitigating or aggravating factors, and then makes the 

final decision on the proposed action. Additionally, an OPLA attorney provides legal guidance 

and advice, and ensures that charges and penalties are supported by legally sufficient 

evidence.

3 In the same timeframe, three additional SES employees received letters of reprimand or 

letters of counseling, but Proposing Officials were not appointed in those instances. The DAAP 

does not require a Proposing Official when such a letter is issued. 

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OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

employee’s chain of command, and proposed no action, so there was no 

Deciding Official. In the other two cases, including the Employee’s, the chain 

of command was recused, so senior officials from a different ICE office were 

appointed as the Proposing and Deciding Officials. 

The DAAP says it ensures “misconduct violations are dealt with fairly, 

equitably, and consistently in the ICE community,” and decisions are made 

“regardless of rank, position, geographical assignment, or relationship with the 

employee involved.” On their face, these statements appear to apply to SES 

and more junior employees alike, and to create a level disciplinary playing field 

for all. Carving out SES members from this policy in practice, without 

documenting a separate SES disciplinary policy designed to ensure fairness 

and consistency, creates the appearance of impropriety and special treatment, 

even if that is not the case. 

While OPLA provided DHS OIG with a draft of a new policy that addresses SES 

members, that policy has not been finalized. 

DHS OIG Found No Evidence of Favoritism or Undue Influence in the 

Employee’s Disciplinary Process 

Following the Employee’s disciplinary proceedings, which deviated from ICE’s 

written policy in some respects, ICE’s decision not to terminate the Employee 

or rescind his security clearance resulted in complaints that the Employee had 

received favorable treatment. While diverging from the documented 

disciplinary policy may create the appearance that SES officials receive 

preferential treatment, we found no evidence of actual favoritism or undue 

influence in the Employee’s disciplinary process or in the review of his security 

clearance. OPLA attorneys and others took steps to promote a fair process, 

and the decision makers offered legitimate and credible reasons for the 

outcomes. 

Supervisors in the Employee’s chain of command were recused from the 

disciplinary process, and OPLA officials appointed senior management officials 

from a different ICE office as the Proposing and Deciding Officials.4 The 

officials who made the ultimate decisions about the Employee’s discipline did 

not know the Employee and thus had no apparent reason to provide favorable 

treatment to him. The Proposing Official told us he had never met the 

Employee, and the Deciding Official said he did not personally know and had 

not worked with the Employee. We collected and reviewed emails from the 

Employee’s chain of command, and found no communications attempting to 

influence the Proposing Official or Deciding Official, or any indications that 

 4 The discipline file does not indicate why the chain of command was recused, and the DAAP 

does not require reasons for recusals to be documented in the disciplinary record. 

www.oig.dhs.gov 4 OIG-20-54 
 

 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

such communications may have occurred.5 Thus, we identified no evidence of 

external influence on the process. 

Additionally, the disciplinary officials provided reasonable explanations for 

their decisions that were supported by the contemporaneous case file. The 

Proposing Official originally considered proposing a 60-day suspension, but the 

Employee would have remained an SES manager after the suspension. The 

Proposing Official did not think the misconduct warranted removal, but he 

believed the Employee should no longer be in a supervisory position. However, 

OPLA advised him that agencies cannot propose demotions for SES officials.6 

As a result, the Proposing Official proposed removing the Employee because it 

was the only way to take him out of a supervisory role.7 

The Deciding Official also did not believe the Employee should be removed from 

the agency. He said the Employee acknowledged his inappropriate behavior, 

was proactive in seeking help, and served for more than 25 years without being 

disciplined for any misconduct. However, he believed the Employee should be 

removed from the SES and any supervisory role.8 Consequently, when the 

Employee’s attorneys proposed a settlement that would involve a demotion, the 

Deciding Official supported that approach.9 Ultimately, the Employee was 

demoted from a very senior SES position to a non-SES, non-supervisory 

 5 One senior official in the Employee’s office recalled occasionally conversing with the Deciding 

Official about the status of the case because he wanted to determine whether he should find a 

permanent replacement for the Employee’s job or if the Employee might return to the position. 

We found no evidence to suggest these communications tainted the disciplinary process. 

6 Agencies may suspend SES employees for more than 14 days or remove them, but may not 

demote them as a form of discipline for misconduct. See 5 U.S.C. §§ 7542-7543; 5 C.F.R. §§ 

752.601, 752.603.

7 An OPLA attorney who worked on the matter confirmed the Proposing Official considered a 

suspension but was concerned about the Employee remaining a supervisor. Additionally, the 

Notice of Proposal ICE issued to the Employee also reflects the Proposing Official’s concern 

about the Employee’s managerial role: “I was particularly concerned with your behavior as it 

related to your supervisory responsibilities and membership in the Senior Executive Service 

(SES)” and “Your actions breached the trust and responsibility placed on you as a senior leader 

of the organization.” 

8 The OPLA attorney who worked on this matter also told DHS OIG the Deciding Official 

considered the Employee’s many years of positive service and his taking responsibility for his 

misbehavior as mitigating factors. These factors are also noted on a form memorializing the 

Deciding Official’s analysis, which he signed as he was completing the disciplinary process. Of 

particular significance, the form states, “I have no concerns with [Employee’s] ability to perform 

in a non-supervisory role, but I am concerned with his ability to hold a supervisory position. 

Given that his conduct involved several [people] who were in positions sometimes several levels 

below [him], I have doubts about his ability to conduct himself appropriately as a supervisor.” 

9 Although agencies may not demote SES employees as a form of discipline for misconduct, 

SES employees may voluntarily request demotions as part of a settlement or otherwise. 

www.oig.dhs.gov 5 OIG-20-54 
 

 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

position. Following the Employee’s demotion, his earnings were approximately 

10.8 percent less than he earned before his misconduct came to light.10

After the Employee’s office identified a potential non-SES, non-supervisory 

position for the Employee, ICE’s Office of Professional Responsibility (OPR) 

conducted a review and determined the Employee was eligible to maintain the 

security clearance necessary for that position. The security clearance 

adjudicator, his supervisor, and OPR leadership all asserted the determination 

was made by the adjudicator, based on the appropriate criteria, and without 

any outside influence. Additionally, we did not find any indication of undue 

influence in the emails we collected from the relevant officials. 

Some witnesses did raise that, for the first time they could recall, OPR 

leadership prevented the security clearance adjudicator from requesting 

information from the Employee that the adjudicator believed was necessary to 

determine the Employee’s eligibility. However, this appears to be the result of 

miscommunication among OPR leadership rather than an attempt to give the 

Employee preferential treatment.11 

The adjudicator ultimately determined he had enough information to find the 

Employee eligible for the security clearance without sending the request to the 

Employee. The request sought information about whether the Employee was 

trying to keep his misbehavior secret, because the adjudicator was concerned 

about the potential for blackmail or coercion. In the intervening months, the 

Employee’s misconduct and discipline became more publicly known, and so 

the adjudicator believed the risk of blackmail was mitigated.12 His supervisor 

confirmed to DHS OIG the adjudicator would not have reached this 

determination if there were any remaining concerns. 

 10 DHS OIG also analyzed other non-public information related to actions ICE took with respect 

to the Employee. This information, coupled with the Employee’s demotion and reduction in 

salary, further indicated that the Employee was not the beneficiary of preferential treatment. 

11 The OPR Associate Director instructed ICE’s Chief Security Officer (CSO) to coordinate the 

security clearance adjudication with OPLA’s disciplinary process. The CSO believed she should 

temporarily put the information request on hold while she coordinated with OPLA, but the OPR 

Associate Director did not believe he specifically told her to hold it. It is unclear if the CSO ever 

spoke with OPLA, and she never provided any further instructions to the security clearance 

adjudicator. 

12 An email dated a few weeks before the information request was going to be sent indicates 

that OPR’s only remaining concern was the potential for blackmail. Additionally, when the 

adjudicator made his decision, he signed a memorandum documenting why he no longer had 

that concern. 

www.oig.dhs.gov 6 OIG-20-54 
 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Conclusion 

By failing to document how it handles SES disciplinary matters, ICE makes 

itself vulnerable to the appearance of favoritism in its disciplinary reviews of 

SES employees. While ICE’s handling of the Employee’s disciplinary 

proceedings deviated from the written policy, our review of the matter did not 

reveal evidence of actual favoritism or undue influence in the Employee’s 

disciplinary or security clearance review processes. 

Recommendations 

We recommend the Deputy Director and Senior Official Performing the Duties 

of the Director of ICE: 

Recommendation 1: Finalize and issue its draft policy documenting the 

process for disciplining SES members. 

Management Comments and OIG Analysis 

ICE provided technical comments and formal management comments in 

response to our draft report and concurred with our recommendation. We 

addressed the technical comments throughout our report as appropriate and 

included a copy of ICE’s management comments in their entirety in Appendix 

B. A summary of ICE’s response and our analysis follows. 

Response to Recommendation 1: ICE concurred with the recommendation. 

On December 3, 2019, the ICE Deputy Director and Senior Official Performing 

the Duties of the Director signed ICE Directive 30012.2, Disciplinary and 

Adverse Action. 

OIG Analysis of ICE’s Response: We reviewed ICE’s new directive and 

confirmed it specifies the Proposing and Deciding Officials in SES disciplinary 

cases. This corrective action is sufficient to resolve and close the 

recommendation. No further action is required. 

www.oig.dhs.gov 7 OIG-20-54 
 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Appendix A 

Objective, Scope, and Methodology 

The U.S. Department of Homeland Security Office of Inspector General (OIG) 

was established by the Homeland Security Act of 2002 (Public Law 107-296) by 

amendment to the Inspector General Act of 1978. 

The objective of this special report was to evaluate U.S. Immigration and 

Customs Enforcement (ICE) policies and procedures regarding Senior Executive 

Service (SES) employee discipline after complaints were raised that a former 

ICE SES official received favorable treatment during disciplinary proceedings. 

We conducted fieldwork for this review between May 2018 and September 

2018. We interviewed employees from ICE Enforcement and Removal 

Operations, Homeland Security Investigations, Office of Principal Legal Advisor, 

and Office of Professional Responsibility. We also reviewed relevant DHS and 

ICE directives, guidance, policies, and procedures; documents and 

communications related to disciplinary processes and security clearance 

eligibility; individual disciplinary and security clearance review files; and emails 

from six relevant individuals. 

We conducted this special review in accordance with the DHS OIG Special 

Reviews Group’s quality control standards and the Quality Standards for 

Federal Offices of Inspector General issued by the Council of the Inspectors 

General on Integrity and Efficiency. These standards require that we carry out 

work with integrity, objectivity, and independence, and provide information 

that is factually accurate and reliable. This report reflects work performed by 

the DHS OIG Special Reviews Group pursuant to Section 2 of the Inspector 

General Act of 1978, as amended. Specifically, this report provides information 

about ICE’s handling of SES employee discipline for the purpose of keeping the 

Secretary of DHS and Congress fully and currently informed about problems 

and deficiencies relating to the administration of DHS programs and operations 

and the necessity for and progress of corrective action. This report is designed 

to promote the efficient and effective administration of, and to prevent and 

detect fraud, waste, and abuse in, the programs and operations of DHS. 

The Office of Special Reviews and Evaluations major contributors to this report 

are Matthew Neuburger, Director; Gregory Flatow, Senior Program Analyst; 

Jonathan Parnes, Investigative Counsel; and Hilary Ervin, Data Analyst. 

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OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Appendix B 

ICE’s Response to the Draft Report 

www.oig.dhs.gov 9 OIG-20-54 
 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

www.oig.dhs.gov 10 OIG-20-54 
 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Appendix C 

Report Distribution 

Department of Homeland Security 

Secretary 

Deputy Secretary 

Chief of Staff 

Deputy Chiefs of Staff 

General Counsel 

Executive Secretary 

Director, GAO/OIG Liaison Office 

Under Secretary, Office of Strategy, Policy, and Plans 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

ICE Audit Liaison 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees 

www.oig.dhs.gov 11 OIG-20-54 
Additional Information and Copies 

To view this and any of our other reports, please visit our website at: 

www.oig.dhs.gov. 

For further information or questions, please contact Office of Inspector General 

Public Affairs at: DHS-OIG.OfficePublicAffairs@oig.dhs.gov. 

Follow us on Twitter at: @dhsoig. 

OIG Hotline 

To report fraud, waste, or abuse, visit our website at www.oig.dhs.gov and click 

on the red "Hotline" tab. If you cannot access our website, call our hotline at 

(800) 323-8603, fax our hotline at (202) 254-4297, or write to us at: 

Department of Homeland Security 

Office of Inspector General, Mail Stop 0305 

Attention: Hotline 

245 Murray Drive, SW 

Washington, DC 20528-0305