Office of the Inspector General

U.S. Department of Justice

Office of the Inspector General

U.S. Department of Justice

The Handling of Sexual Harassment

and Misconduct Allegations by the

Departments Law

Enforcement Components

Evaluation and Inspections Division 15-04

March 2015

EXECUTIVE SUMMARY

INTRODUCTION
The Office of the Inspector General (OIG) conducted this review to
assess how the Department of Justices (Department) four law
enforcement components respond to sexual misconduct and harassment
allegations made against their employees. This review examined the
nature, frequency, reporting, investigation, and adjudication of such
allegations in the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF); the Drug Enforcement Administration (DEA); the Federal Bureau
of Investigation (FBI); and the United States Marshals Service (USMS).
Issues That Arose During the Review
The OIGs ability to conduct this review was significantly impacted
and delayed by the repeated difficulties we had in obtaining relevant
information from both the FBI and DEA as we were initiating this review
in mid-2013. 1 Initially, the FBI and DEA refused to provide the OIG with
unredacted information that was responsive to our requests, citing the
Privacy Act of 1974 and concerns for victims and witnesses as the
reasons for the extensive redactions, despite the fact that the OIG is
authorized under the Inspector General Act to receive such information. 2
After months of protracted discussions with management at both
agencies, the DEA and FBI provided the information without extensive
redactions; but we found that the information was still incomplete.
Ultimately, based on a review of information in the OIG Investigations
Division databases, we determined that a material number of allegations
from both DEA and FBI were not included in the original responses to
our request for the information.
Both the ATF and the USMS provided the OIG with full, complete, and timely
access to our requests.
1

See generally Privacy Act of 1974, Pub. L. 93579, 88 Stat. 1896, 5 U.S.C.
552a, which governs the collection, maintenance, use, and dissemination of
personally identifiable information about individuals maintained in systems of records
by federal agencies, and the Inspector General Act of 1978, 6(a)(1) (authorizing OIGs
to have access to all records, reports, documents, papers, or other material
available to the [agency] which relate to programs and operations with respect to which
that Inspector General has responsibilities under this Act). Because the OIG is an
agency within the Department, and handles information it receives consistent with the
requirements of the Privacy Act, the FBI and the DEAs failure to provide the
information to the OIG at the outset was unwarranted.
2

We were also concerned by an apparent decision by DEA to

withhold information regarding a particular open misconduct case. The
OIG was not given access to this case file information until several
months after our request, and only after the misconduct case was closed.
Once we became aware of the information, we interviewed DEA
employees who said that they were given the impression that they were
not to discuss this case with the OIG while the case remained open. The
OIG was entitled to receive all such information from the outset, and the
failure to provide it unnecessarily delayed our work.
Therefore, we cannot be completely confident that the FBI and DEA
provided us with all information relevant to this review. As a result, our
report reflects the findings and conclusions we reached based on the
information made available to us.
RESULTS IN BRIEF
Although we found there were relatively few reported allegations of
sexual harassment and sexual misconduct in the Departments law
enforcement components for fiscal years 2009 through 2012, our review
of the handling of these allegations revealed some significant systemic
issues with the components processes that we believe require prompt
corrective action. 3
Coordination between internal affairs offices and security
personnel. At ATF, DEA, and USMS, there was a lack of coordination
between the internal affairs offices that receive sexual misconduct
allegations and the offices responsible for ensuring that employees meet
the requirements to hold security clearances. In most cases where
employees were alleged to have engaged in high-risk sexual behavior,
security personnel were not informed about these incidents until long
after they occurred or were never informed, even though such behavior
presents possible significant security risks. 4 By contrast, at the FBI, the
We discuss our findings in the Executive Summary in the order of importance.
However, the Results of the Review follow the disciplinary process: reporting, security,
investigation, and adjudication.
3

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

Determining Eligibility for Access to Classified Information, as conduct that involves a
criminal offense, indicates a personality or emotional disorder, reflects lack of judgment
or discretion, or may subject an individual to undue influence or coercion, exploitation,
or duress or raise questions about an individual's reliability, trustworthiness and ability
to protect classified information. See generally, Memorandum from Stephen J. Hadley,
White House Assistant to the President for National Security Affairs, Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information, December 29,
2005.

ii

Internal Investigations Section alerts the Security Division to any

misconduct allegations it receives so that a determination can be made
as to whether an allegation raises security risks for the FBI or raises
concerns about the employees continued eligibility to hold a security
clearance.
Reporting misconduct allegations to component headquarters.
ATF and the USMS have clear policies requiring supervisors to report
misconduct allegations, including alleged sexual misconduct and sexual
harassment, to their headquarters internal affairs offices. However, we
found that supervisors sometimes failed to report these allegations, even
when the subject was alleged to have committed similar misconduct in
the past. We found that the sexual misconduct and sexual harassment
reporting policies at the DEA did not clearly delineate what should be
reported to headquarters and what should be treated as a local
management or performance-related issue. As a result, DEA supervisors
exercised discretion in deciding what to report, even when their
respective offense tables characterized sexual misconduct and sexual
harassment as prohibited behavior. We also found that FBI sexual
misconduct reporting policies did not clearly delineate what should be
reported to headquarters and what should be treated as a local
management or performance-related issue. However, the FBI does have
a clear requirement for employees to report all allegations of sexual
harassment. In all four components, some allegations were not reported
by headquarters to the OIG when they first occurred.
The investigative process. ATF, DEA, and FBI have criteria
regarding the opening at headquarters of investigations into allegations
of sexual misconduct and sexual harassment. Although ATF generally
followed its established criteria, we found instances in which the FBI
failed to follow its criteria and instances where DEA failed to fully
investigate allegations. The USMS does not have established criteria, but
generally seemed to make appropriate determinations about when to
initiate an investigation in such matters.
The adjudication process. The ATF offense table does not
contain specific offense categories to address sexual misconduct and
sexual harassment. The DEA, FBI, and USMS have offense tables that
contain specific categories for such allegations and provide guidance on
the appropriate range of penalties that could be imposed. We found that
the DEA and USMS offense tables do not provide adequate explanations
of the types of behaviors that warrant possible disciplinary action. In
some instances, these components applied general offense categories to
misconduct more appropriately addressed by the specific sexual
misconduct and sexual harassment offense categories in their offense
tables.
iii

Component offense tables do not always contain language

adequate to address the solicitation of prostitutes in jurisdictions
where the conduct is legal or tolerated. We found that the ATF, DEA,
and USMS offense tables do not contain specific language to address the
solicitation of prostitutes abroad, even where the conduct is legal or
tolerated. Although the FBI offense table contains such a category, we
found instances where general offense categories were applied instead of
the specific category. Employees in ATF, DEA, and USMS may not
receive adequate notice that this conduct is prohibited or of the range of
penalties that could be imposed for it.
All of the components have weaknesses in detecting sexually
explicit text messages and images. For all components, we were
unable to determine the actual number of instances involving the
transmission of sexually explicit text messages and images because the
components do not have adequate technology to enable them to detect
this type of misconduct. Although the FBI archives and proactively
monitors its employees text messages, there are limitations to its ability
to use this information, and misconduct investigators at ATF, DEA, and
USMS cannot easily obtain such text message evidence. These issues
may hamper the components ability to use this type of evidence in
misconduct investigations, to fully satisfy their discovery obligations, and
to deter misconduct.
RECOMMENDATIONS
We make eight recommendations in this report to improve the law
enforcement components disciplinary and security processes relating to
allegations of sexual misconduct and harassment.

iv

TABLE OF CONTENTS

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

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

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

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

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

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

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

CHAPTER 5: DETECTING AND RETAINING SEXUALLY EXPLICIT

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

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

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

APPENDIX 2: LAW ENFORCEMENT COMPONENT DISCIPLINARY

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

APPENDIX 3: LAW ENFORCEMENT COMPONENT OFFENSE

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

APPENDIX 4: SEXUAL MISCONDUCT AND SEXUAL HARASSMENT

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

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

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

APPENDIX 7: THE OFFICE OF THE DEPUTY ATTORNEY

GENERALS RESPONSE TO THE DRAFT REPORT ............................. 99

APPENDIX 8: OIG ANALYSIS OF THE OFFICE OF THE DEPUTY

ATTORNEY GENERALS RESPONSE ................................................ 102

APPENDIX 9: THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS

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

APPENDIX 10: OIG ANALYSIS OF THE BUREAU OF ALCOHOL,

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

APPENDIX 11: THE DRUG ENFORCEMENT ADMINISTRATIONS

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

APPENDIX 12: OIG ANALYSIS OF THE DRUG ENFORCEMENT

ADMINISTRATIONS RESPONSE...................................................... 116

APPENDIX 13: THE FEDERAL BUREAU OF INVESTIGATIONS

RESPONSE TO THE DRAFT REPORT .............................................. 121

APPENDIX 14: OIG ANALYSIS OF THE FEDERAL BUREAU OF

INVESTIGATIONS RESPONSE ........................................................ 123

APPENDIX 15: THE UNITED STATES MARSHALS SERVICES

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

APPENDIX 16: OIG ANALYSIS OF THE UNITED STATES MARSHALS

SERVICES RESPONSE ................................................................... 129

INTRODUCTION

The Department of Justices (Department) law enforcement

components are charged with investigating violations of federal law.
Given the nature of their work, federal law enforcement employees are
held to the highest standards of conduct and must be accountable for
their actions both on- and off-duty.
When employees of law enforcement components commit sexual
misconduct or sexual harassment, or engage in criminal activity related
to prostitution or the exploitation of children, it affects the components
reputation, undermines its credibility, and potentially compromises the
governments efforts in prosecutions. Sexual misconduct and sexual
harassment in the workplace also affect employee morale and hamper
employees ability to have and maintain effective working relationships.
When sexual misconduct involves a criminal element, witness,
confidential source, informant, or foreign national, it may also affect the
security of the components operations.
In the past 3 years, there have been allegations of sexual
misconduct involving law enforcement agents from a Department
component, as well as from another federal law enforcement agency, that
have received international media attention. In the wake of our review of
the alleged sexual misconduct of several DEA Special Agents in
Cartagena, Colombia, the Office of the Inspector General (OIG) initiated
this review to assess the nature, frequency, reporting, investigation, and
adjudication of allegations of sexual misconduct (including the
transmission of sexually explicit texts and images) and sexual
harassment in the four Department law enforcement components: the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Drug
Enforcement Administration (DEA); the Federal Bureau of Investigation
(FBI); and the United States Marshals Service (USMS). 5

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

government services and the fair and equitable treatment of covered employees, the OIG
previously performed six reviews assessing the disciplinary systems of the law
enforcement components and the Executive Office for United States Attorneys,
including the Review of the USAOs and EOUSAs Disciplinary Process, I-2014-001,
February 2014; the Federal Bureau of Investigations Disciplinary System, I-2009-002,
May 2009; Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives
Disciplinary System, I-2005-009, September 2005; Review of the Federal Bureau of
Prisons Disciplinary System, I-2004-008, September 2004; Review of the Drug
Enforcement Administrations Disciplinary System, I-2004-002, January 2004; and
Review of the United States Marshals Service Discipline Process, I-2001-011, September
2001.
5

Sexual Misconduct and Harassment Defined

For purposes of this review, we utilized the FBIs definition of
sexual misconduct as engaging in sexual, intimate, or romantic
activity in an inappropriate location (such as government spaces,
government vehicles), or while on duty, and also included the following
additional separate offense categories 6:

Rape;
Sexual Assault;
Child Pornography;
Solicitation of Prostitutes;
Improper Sexual Association with Confidential Sources,
Witnesses, Informants, and Criminal Elements;
Inappropriate Relationships;
Misuse of Government Property (Vehicle or Office Space) for
Sexual Purposes;
Misuse of Position to Coerce a Sexual Encounter or

Relationship; and

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

and images with government equipment).

We used the Equal Employment Opportunity Commissions (EEOC)

Guidelines on Discrimination Because of Sex to define sexual
harassment. 7 The EEOC Guidelines describe sexual harassment as
unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature [as] sexual harassment
when this conduct explicitly or implicitly affects an individuals
employment, unreasonably interferes with an individuals work
performance, or creates an intimidating, hostile, or offensive work
environment. In cases where the OIG believed the misconduct did not
rise to the level of sexual harassment, we categorized the conduct as
Inappropriate Sexual Comments and/or Gestures, which comprise
minor forms of the types of behavior described above.
Department policy prohibits sexual harassment of employees,
which, like other forms of harassment, interferes with a productive
6

FBI Offense Code 5.20, Sexual Misconduct.

The legal framework protecting federal employees from harassment on the

basis of sex, including employees of the law enforcement components, is contained in
Section 703 of Title VII of the Civil Rights Act of 1964, the Civil Service Reform Act of
1978, and 29 C.F.R. 1604.11 (which contains the Equal Employment Opportunity
Commissions (EEOC) Guidelines on Discrimination Because of Sex) (hereinafter EEOC
Guidelines).
7

working environment, interjects irrelevant considerations into personnel

decisions, and generally demeans the victims of harassment. Further,
the law enforcement components developed policy in response to a 1993
mandate from the Attorney General to address this serious form of
misconduct. 8 Appendix 4 contains information about the number of
sexual misconduct and sexual harassment allegations opened during
fiscal year (FY) 2009 through FY 2012 by offense category.
The Disciplinary Process
The legal framework governing the discipline of most federal service
employees is contained in 5 U.S.C. Chapter 75 and 5 C.F.R. Part 752. 9
Additional policies and procedures directing how the Department
handles discipline and adverse actions can be found in Department of
Justice Order 1200.1. 10 This Order outlines the roles and
responsibilities of management officials seeking to impose formal
discipline and describes the mechanics of the inquiry, notice,
adjudication, and grievance process applicable to most Department
employees.
The Order also outlines the rights of employees who appeal their
discipline in administrative proceedings before the Merit Systems
Protection Board (MSPB) or mediate the decision in binding arbitration. 11
Although the laws and regulations described above provide the general
framework for Department disciplinary systems, it is within the
components discretion to tailor its system to meet its organizational
needs.

See Memorandum on Prevention of Sexual Harassment in the Workplace,

Attorney General, Janet Reno, June 29, 1993, as amended, December 14, 1998. See
also ATF Order 2130.1A, Conduct and Accountability, Section 14 Discrimination and
Harassment, February 7, 2012; DEA Policy Statement on Sexual Harassment in the
Workplace, June 13, 2011; FBI Policy on Harassment, February 14, 2005; and the
USMS Equal Employment Opportunity Policy Statement, May 3, 2012.
8

9
10

1998).

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

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

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

that was established by Reorganization Plan No. 2 of 1978, which was codified by the
Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (CSRA). The CSRA
authorized the MSPB to hear appeals of various agency decisions, most of which are
appeals from agencies adverse employment actions.

Unlike ATF, DEA, and USMS employees, the procedural

protections described above do not apply to most FBI employees. 12 For
example, unlike most other federal employees, FBI employees cannot
appeal disciplinary decisions to the MSPB. (See 5 U.S.C. 7511(b)(8)).
Instead, the FBI has established an internal process for employees to
appeal discipline decisions.
All non-frivolous allegations of criminal wrongdoing or serious
administrative misconduct by Department employees must be reported
to the OIG. 13
The disciplinary processes of all four law enforcement components
follow a similar format containing three distinct phases: reporting,
investigation, and adjudication. For a detailed description of each
components disciplinary process, see Appendix 2.

12 FBI employees to whom these procedural protections apply during the

disciplinary process include preference-eligible veterans (5 U.S.C. 7511(a)(1)(B)).
Veterans are preference eligible if they are disabled or served on active duty during
certain specified time periods or in military campaigns (5 U.S.C. 2108).

The OIG generally will investigate allegations of criminal or serious

administrative misconduct, or misconduct by high-ranking employees or others as to
which the impartiality of an internal investigation might be open to question. For the
cases that the OIG investigates, the OIG issues a final report of investigation that is
provided to the component, in order that the report can be used as the basis for the
components disciplinary decision.
13

See generally 28 C.F.R. Parts 0 and 45, which require the law enforcement
components to refer all non-frivolous allegations of employee misconduct to the OIG.
See also the Inspector General Act of 1978, as amended, 5 U.S.C. App 8(E) (b) (2)
(providing the Inspector General the authority to investigate any Department employee
misconduct).

SCOPE AND METHODOLOGY OF THE OIG REVIEW

Scope
This review covered allegations of sexual misconduct and sexual
harassment by law enforcement component employees from FY 2009
through FY 2012 (October 1, 2008 through September 30, 2012) that
resulted in disciplinary action or decisions to take no action. We also
included available information regarding misconduct allegations from
this timeframe that were still open as of April 23, 2013, and updated the
information during the course of our review. 14
Methodology
Our review included data analysis, case file reviews, and
interviews. 15 We reviewed applicable laws, regulations, policy, and
written procedures related to the disciplinary process, sexual misconduct
and sexual harassment. We collected and analyzed misconduct data and
case files we received from the law enforcement components and from
the OIGs Investigations Division.
Data Analyses and Case File Reviews
In April 2013, during the planning stages of this review, the OIG
requested from the four Department law enforcement components all
misconduct allegations from FY 2009 through FY 2012. ATF and the
USMS readily provided this information, which assisted the OIG in
determining what sexual misconduct and sexual harassment allegations
would be within the scope of our review. By contrast, the DEA and the
FBI initially stated they were unwilling to provide the OIG with
information regarding such misconduct allegations until the OIG
formally initiated the review. Both components cited the Privacy Act and
concerns for the parties involved as the basis for not providing the
Any open allegations of sexual misconduct or sexual harassment discussed
in this report were monitored or investigated by the OIG. This review examines the
policies and processes employed by the law enforcement components, and not the OIGs
investigation or monitoring of the underlying matters.
14

Component case files may contain multiple allegations against multiple

subjects. For purposes of this review, we generally count each case file as a separate
case and each subject of an investigation as a separate allegation. However, during
adjudication, an adjudicative case file contains only information relating to an
individual subject. Therefore, when discussing the adjudicative process, we refer to
each subject as a case.
15

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

respective component senior management.
The following sections discuss what occurred with data requests
made to the FBI and DEA.
FBI data requests: In order to identify sexual misconduct and
harassment cases within our scope, we initially provided the FBI with a
list of search terms to use in its database queries. In consultation with
the OIG, the FBI developed a shorter list of search terms that focused on
seven offense categories relating to sexual misconduct and sexual
harassment. However, when the FBI provided the results of their
searches, the information it provided was heavily redacted and prevented
the OIG from understanding the nature and circumstances of the
allegations.
When we questioned the inadequate nature of these productions,
the FBI continued to raise unsupportable objections related to the
Privacy Act to producing unredacted materials to the OIG. It was not
until August 2013 that the FBI agreed to provide the OIG with case files.
To help ensure that we had received all cases within the scope of
our review from the FBI, we ran a search of the OIG Investigation
Divisions database with our full list of search terms. We then evaluated
the search results to determine which cases were within the scope of our
review, and we compared those cases with what we received from the
FBI. Through this process, we found a material number of additional
allegations of sexual misconduct and sexual harassment that were not
included in FBIs productions. We requested and ultimately received
information from the FBI on these additional cases.
Also, based upon our analysis of the FBIs search process, we
determined that a significant number of cases were within the scope of
our review and met the agreed upon FBI search criteria, but were not
provided to the OIG. As a result of these initially incomplete
productions, we cannot be confident that the FBI provided us with all of
This refusal was puzzling to us, given that the OIG is an organization within
the Department and that the OIG routinely handles information it receives from
Department components consistent with the Privacy Act. Furthermore, the OIG
Investigations Division receives from these same law enforcement components all such
misconduct allegations on a regular basis, though not with all the same information
and disciplinary outcomes necessary for this review. See generally 28 C.F.R. Parts 0
and 45, which require the law enforcement components to refer all non-frivolous
allegations of employee misconduct to the OIG. See also the Inspector General Act of
1978, as amended, 5 U.S.C. App 8(E) (b) (2) (providing the Inspector General the
authority to investigate any Department employee misconduct).
16

the relevant information necessary for our review. Moreover, the failure
to provide case file information in a timely fashion unnecessarily delayed
our work. Therefore, our report reflects the findings and conclusions we
reached based on the information made available to us. For a more
detailed discussion regarding the allegations we reviewed for each of the
law enforcement components, see Appendix 1.
DEA data requests: In order to identify sexual misconduct and
harassment cases within our scope, we initially provided the DEA with a
list of search terms to use in its database queries. The DEA did not
provide the OIG with case file information until several months after we
first requested it, and only after we formally initiated the review.
Moreover, in August 2013, when the DEA provided the OIG with case file
information, the information was so heavily redacted that it prevented
the OIG from understanding the nature and circumstances of the
allegations. 17 When we questioned the inadequate nature of these
productions, the DEA continued to raise unsupportable objections
related to the Privacy Act to producing unredacted materials to the OIG.
It was not until September 2013 that the DEA provided mostly
unredacted case file information, but it continued to redact some
relevant information.
To help ensure that we had received all cases within the scope of
our review from the DEA, we ran a search of the OIG Investigation
Divisions database with our full list of search terms. We then evaluated
the search results to determine which cases were within the scope of our
review, and we compared those cases with what we received from the
DEA. Through this process, we found a material number of additional
allegations of sexual misconduct and sexual harassment that were not
included in DEAs productions. We requested and ultimately received
information from the DEA on these additional cases.
Moreover, in November 2014, after a working draft of our report
was issued to the components, we learned for the first time that the DEA
had not run the full list of search terms provided by the OIG. Instead,
the DEA informed us that it had run only three search terms related to
sexual misconduct and harassment and initially provided the OIG with a
more limited number of cases as a result. Based upon our analysis of
the DEAs search process, we determined that a significant number of
cases were within the scope of our review and met the DEA-selected
search criteria, but were not provided to the OIG during their initial
production.
17 For an example of the redacted information provided by DEA during this
phase of our review, see Appendix 6.

Because of these initially incomplete productions, we cannot be

confident that the DEA provided us with all of the relevant information
necessary for our review. Moreover, the failure to provide case file
information in a timely fashion unnecessarily delayed our work.
Therefore, our report reflects the findings and conclusions we reached
based on the information made available to us. For a more detailed
discussion regarding the allegations we reviewed for each of the law
enforcement components, see Appendix 1.
Interviews
We interviewed officials and staff members responsible for the
reporting, investigation, and adjudication of discipline and adverse
actions at the law enforcement components. We also interviewed staff
members in their respective Chief or General Counsels Offices. Further,
we interviewed the components security personnel and information
technology personnel, the Departments Security and Emergency
Planning Staff (SEPS), and personnel from the Office of the Deputy
Attorney General.
We were concerned by an apparent decision by DEA to withhold
information regarding an open matter during our initial interviews with
several DEA employees. When we re-interviewed these employees after
the DEA provided the case file following its closure, the employees stated
they were given the impression by DEA that they were not to discuss the
case with the OIG while the case remained open. The OIG was entitled to
receive all such information from the outset of our review. The failure to
provide it in a timely fashion unnecessarily delayed our work.
The next section of the report discusses the results of the review.
Chapter 1 discusses the reporting of allegations of sexual misconduct
and sexual harassment. Chapter 2 discusses the security of operations,
while Chapters 3 and 4 discuss the investigation and adjudication of
sexual misconduct and sexual harassment allegations. Chapter 5
discusses detecting and retaining sexually explicit text message evidence.

RESULTS OF THE REVIEW

CHAPTER 1: THE REPORTING PROCESS

Although the ATF and the USMS have clear policies requiring
supervisors to report misconduct allegations, including alleged sexual
misconduct and sexual harassment, to their headquarters internal
affairs offices, we found that supervisors sometimes failed to report these
allegations, even when the subject was alleged to have committed similar
misconduct in the past.
At the DEA and the FBI, we found their misconduct reporting
policies did not clearly delineate what should be reported to
headquarters and what should be treated as a local management or
performance-related issue. We found that, as a result, supervisors at
these components exercised discretion in deciding what to report, even
when their respective offense tables characterized sexual misconduct and
sexual harassment as prohibited behavior.
As a result, in all four components, allegations were not reported
by their headquarters to the OIG when they first occurred, and in some
cases, even some repeated allegations of sexual misconduct or sexual
harassment may not have been fully investigated.
ATF
ATF Order 2130.A, Conduct and Accountability, requires ATF
managers, supervisors, and employees to report to Internal Affairs
Division (IAD) at ATF headquarters all suspected or alleged incidents of
misconduct related to integrity, professionalism, and impartiality. 18 ATF
Order 8610.B, Integrity and Other Investigations, also requires ATF
employees to promptly report any allegation or information indicating a
violation of the standards of conduct (both government-wide or ATF
standards), a violation of any Department rule, or any criminal conduct
to their supervisor, IAD, or directly to the Department of Justice (DOJ)
OIG.
We found that in 4 of the 47 allegations (8.5 percent) we reviewed,
ATF supervisors failed to report allegations of sexual misconduct and
For purposes of this report, the OIG does not make a distinction between
sexual misconduct and misconduct related to integrity, professionalism, and
impartiality. Sexual misconduct, to include matters relating to sexual harassment, can
and often does relate directly to integrity, professionalism, and impartiality.
18

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

required and instead handled matters locally. In these cases, the
subjects who committed the alleged misconduct continued to engage in
prohibited behavior and the OIG did not learn about the alleged
misconduct when it first occurred.
Case #1: For over 3 years, an ATF Program Manager failed to report
allegations that two training instructors were having consensual sex with
their students. According to the incident report, the Program Manager
learned the same instructors had engaged in substantially the same
activities 3 years earlier but had merely counseled the training
instructors without reporting the alleged activities to the IAD. When
division management learned about the latest incident from the Program
Manager, they reported the matter to the IAD, and the Program Manager
cancelled the instructors contracts and removed them from their
positions. 19
Based on our review of the case file, we concluded the Program
Manager did not comply with ATF policy requiring managers to report to
the IAD all suspected or alleged incidents of misconduct related to
integrity, professionalism, and impartiality. In addition, the Program
Managers failure to report the alleged misconduct when it first occurred
prevented the IAD from referring the allegations to the OIG when they
were first discovered. There is no indication in the case file that the
Program Manager was investigated for failing to report the first incident.
Case #2: A Special Agent in Charge (SAC) and an Assistant Special
Agent in Charge (ASAC) failed to promptly report allegations of an
inappropriate relationship between the ASAC and a subordinate and the
intentional misuse of government vehicles to facilitate that relationship.
The subordinates spouse, who was also an ATF employee, insisted the
ASAC report the relationship to local ATF management. Once it was
reported, the subordinate was removed from the ASACs supervision;
however, the SAC treated the romantic relationship as a management
issue and did not report the matter to the IAD. The matter ultimately
was reported to the IAD following additional allegations that the
subordinate had engaged in similar misconduct. The ASAC ultimately
received a 45-day suspension for misusing a government vehicle and for
failing to report the subordinates continued use of the government
ATF does not have any additional information indicating that the instructors
appealed the termination of their contracts. However, one of the instructors was re
instituted and ATF has subsequently utilized that instructor for two task orders. ATF
stated that this instructors actions were not as egregious as the other individual. ATF
personnel also stated that the decision to not use the other instructor was due to the
totality of the circumstances involving the disciplinary matter.
19

10

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

day suspension for misuse of a government vehicle.
We found that the SAC and the ASAC did not comply with ATF
policy by failing to promptly report the relationship and the misuse of a
government vehicle. Although the ASAC eventually was disciplined for
failing to report the subordinates government vehicle misuse, the SAC
retired and was not investigated or disciplined for failing to report these
matters. Further, the IAD was unable to refer the allegations to the OIG
when they were first discovered because the SAC and the ASAC did not
report them.
DEA
We found that the DEA lacks clear policy on whether to report
alleged misconduct to headquarters and the DEA provides supervisors
discretion when deciding whether to do so. We determined that in 10 of
the 113 allegations (9 percent), DEA supervisors failed to report
allegations of sexual misconduct and sexual harassment through their
chain of command or to the DEAs Office of Professional Responsibility
(OPR). In these instances, DEA supervisors treated alleged sexual
misconduct and sexual harassment as a local management or
performance-related issue. As a result, the OIG did not learn about the
alleged misconduct and was unable to review the allegations when they
first arose.
The DEA Personnel Manual, Section 2735.1, Standards of Conduct,
requires DEA employees to promptly report to their supervisor or directly
to the DEA OPR any information that indicates or alleges that another
DEA employee engaged in improper or illegal activities in violation of the
DEA Standards of Conduct. However, DEA supervisors have discretion
when determining whether the reported matter is a management or
performance-related issue that can be handled locally or whether it is
misconduct requiring a report to DEA OPR. Where there is a question
about how the matter should be handled, the DEA Personnel Manual
advises supervisors to consult with their chain of command or DEA OPR.
However, DEA supervisors are not required to do so.
The DEA Guide of Disciplinary Offenses and Penalties also contains
descriptions of various types of prohibited behavior and puts employees
and supervisors on notice as to what constitutes misconduct. Even
though the reporting policy contained in the Personnel Manual lacks
clarity, the DEA offense table and the Standards of Conduct provide some
guidance to supervisors and employees.

11

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

policy, sexual misconduct and sexual harassment allegations were either
not being reported to DEA OPR when they were first discovered or were
not reported at all. In these cases, DEA supervisors treated the alleged
misconduct as a local management issue. We discuss two cases below.
Case #1: We found that a Regional Director, an Acting Assistant
Regional Director (AARD), and a Group Supervisor failed to report
through their chain of command or to the DEA OPR repeated allegations
of DEA Special Agents (SA) patronizing prostitutes and frequenting a
brothel while in an overseas posting, treating these allegations as local
management issues. 20 It was also alleged that one of the subjects in the
supervisors group assaulted a prostitute following a payment dispute.
The matter ultimately was reported to the DEA OPR in June 2010 in an
anonymous letter alleging that two Special Agents had frequented
prostitutes while in an overseas posting on a regular basis.
According to DEA OPRs report of investigation, the agents incountry supervisors were aware of several loud parties with prostitutes
that occurred at a Special Agents government-leased quarters, because
the Special Agent had received four complaint letters from building
management, who had also informed local DEA management about the
complaints between August 2005 and December 2008. In subsequent
interviews with DEA OPR, this SA said that a Group Supervisor, the
Regional Director, and the Acting Assistant Regional Director had warned
the SA to discontinue the parties or be removed from the overseas
assignment. However, they did not inform DEA OPR about the
allegations.
According to the case file, the Regional Director justified the failure
to report the allegations by stating that the matter was a management
issue. When the DEA OPR questioned whether the Regional Director
failed to report an OPR matter, the Regional Director stated he believed
the matter was under the immediate purview of the Regional Security
Officer and was being reviewed by competent and independent
authority. The DEA OPR reported the matter to the DEA Administrator
and, in 2012, the DEA Administrator counseled the Regional Director for
failing to report the allegations. The Acting Assistant Regional Director
and Group Supervisor were not subjects of the separate investigation
20 The Acting Assistant Regional Director who supervised the two special agents
in this case was also alleged to have solicited prostitutes in the DEA case we discuss in
Chapter 2, Security of Operations. In that case, the AARD allegedly engaged in sexual
relations with prostitutes at a farewell party in the AARDs honor. There were also
allegations operational funds were used to pay for the party and the prostitutes who
participated.

12

and were not disciplined, and the SA whose quarters were used for the
parties received a 14-day suspension for Conduct Unbecoming a DEA
Agent and Improper Association.
Even though the DEAs reporting policy affords some discretion to
DEA supervisors on whether to report alleged misconduct to the OPR or
whether to handle it locally, the alleged misconduct described above
clearly should have been reported to the DEA OPR because it falls within
the offense category Criminal, Dishonest, Infamous or Notoriously
Disgraceful Conduct that is contrary to the DEA Standards of Conduct
and is prohibited in its offense table. For the Regional Director to have
treated such conduct as a local management issue is troubling. Further,
the supervisors failure to promptly report the alleged misconduct
prevented the DEA OPR from referring these allegations to the OIG for
investigation when they were first discovered.
Case #2: In another case, a DEA Country Attach and Group
Supervisor failed to report repeated incidents of sexual harassment and
other misconduct through their chain of command or to DEA OPR.
According to the OPR case file, in May 2010, DEA received a complaint
through the Department of State, Diplomatic Security Service, regarding
an Assistant Regional Director (ARD) in an overseas Country Office.
According to the report of investigation, a Foreign Service National (FSN)
who served as the ARDs Assistant alleged that the ARD made numerous
inappropriate sexual comments; asked the FSN to watch pornographic
movies; and routinely threw items, yelled at employees, and used other
vulgarities in the office and at official functions, among other
allegations. 21
When a second employee raised concerns about the ARDs
behavior to the Country Attach and the Group Supervisor, they told the
second employee to discontinue any direct contact with the ARD but did
not report the allegations to DEA OPR. Ultimately, after the FSNs
complaint to the Embassys Regional Security Office was referred
through the State Department to the DEA OPR, the ARD received a letter
of reprimand for Failure to Follow Instructions and Conduct Unbecoming
a DEA Agent for using profanity, yelling, and throwing things in the
office.

21 DEA did not provide the OIG with the allegations contained in Case #2. We
discovered them with the assistance of the OIG Investigations Division. The allegation
was not investigated or monitored by the OIG, but was referred back to the DEA OPR to
investigate as a management referral.

13

Even though the DEAs reporting policy affords some discretion to

DEA supervisors on whether to report alleged misconduct to the DEA
OPR or whether to handle it locally, we found the alleged misconduct
described above warranted a report to the DEA OPR, rather than treating
such conduct locally as a management issue. Such conduct is contrary
to the DEA Standards of Conduct and is prohibited in the offense table,
thus warranting a referral to the DEA OPR.
The fact that the alleged misconduct involved executive
management could have indicated to employees in the field that the
ARDs behavior was acceptable and tolerated by the supervisors in this
country office, underscoring that local office management were not the
appropriate individuals to handle these issues. Further, the supervisors
failure to promptly report these allegations prevented the DEA OPR from
referring the alleged misconduct to the OIG when they were first
discovered.
FBI
The FBI also lacks clear policy on whether to report alleged
misconduct to headquarters and provides FBI supervisors with discretion
when making these determinations. We found that, as a result, in 32 of
the 258 allegations (approximately 12 percent) we reviewed, FBI
supervisors failed to report allegations of sexual misconduct and sexual
harassment to the Inspection Division, Internal Investigations Section.
In these instances, FBI supervisors treated alleged sexual misconduct
and sexual harassment as local management issues. Further, the OIG
would not learn about the alleged misconduct in order to be able to
review it when it first occurred.
According to the FBI Code of Conduct, FBI employees shall report
to the proper authority any violations of law and regulation by
themselves or others. The FBI Offense Codes and Penalties Guidelines
contains descriptions of prohibited behavior and includes an offense
category requiring FBI employees to report to the appropriate FBI official
or supervisor in a timely manner allegations of administrative or criminal
misconduct which the employee knew or should have known to be a
violation of FBI or DOJ regulation or policy. In interviews, Internal
Investigations Section (IIS) management told us that all misconduct
allegations must be reported to IIS for a determination as to whether the
alleged misconduct warranted investigation because the IIS staff are the
subject matter experts.
However, the Internal Investigations Section Supervisors Guide
provides FBI supervisors and senior management with more discretion
when determining whether to report misconduct allegations to
14

headquarters, requiring only the reporting of all allegations of employee

serious misconduct or criminality.
The IIS Supervisors Guide also advises supervisors to refer to the
FBI Offense Codes and Penalty Guidelines, which describes various types
of prohibited behavior, when determining what types of alleged
misconduct warrant referral to the IIS Initial Processing Unit (IPU).
When there is doubt, the Guide advises supervisors to contact the IPU
Unit Chief or the Lead Conduct Review Specialist by telephone for
guidance in evaluating whether an allegation warrants a referral. We
therefore concluded that the FBI policy on reporting misconduct
allegations to the IIS still leaves local supervisors with discretion in
deciding whether to report misconduct.
In contrast to sexual misconduct, the FBI has a specific reporting
policy regarding sexual harassment. 22 It states that once a sexual
harassment incident has been reported, the supervisor must take
immediate corrective action and must also report the allegations of
sexual harassment to the Inspection Division, Internal Investigations
Section, as potential employee misconduct.
We found instances where it appeared that, because the policy on
reporting sexual misconduct is unclear, the discretion given to FBI
supervisors resulted in such allegations not being reported to the FBI IIS
when they were first discovered or that they were never reported. We
also found sexual harassment allegations that were not reported to the
FBI IIS when they were first discovered or were never reported despite
the FBIs clear policy requiring reporting of these matters. Also, even
after this failure to report was discovered by the FBI IIS, it did not open
an investigation into the failure to report. We discuss two sexual
harassment cases with reporting issues below.
Case #1: A line supervisor, an Assistant Section Chief, a Section Chief,
and an Assistant Director failed to report a Supervisory Management and
Program Analysts (SMAPA) repeated unprofessional behavior, including
cornering his subordinates in their cubicles and displaying the size of his
genitals by tightening his pants, making graphic and inappropriate
sexual comments and gestures, and otherwise creating a hostile work
environment.
Instead of reporting this conduct to headquarters, the supervisors
counseled the SMAPA on four occasions and, in the last session, required
the SMAPA to sign a document in which the SMAPA pledged to refrain
22

FBI Policy on Harassment, dated February 14, 2005.

15

from such conduct. Even after signing the document, the SMAPA
continued to engage in the misconduct, at which point the Assistant
Director reported it to the IIS. Accordingly, the subordinates experienced
the SMAPAs misconduct for approximately 3 years before it was reported
to headquarters.
According to the case file, two of the subordinates said they
reported the SMAPAs conduct to the Assistant Section Chiefs and the
Section Chief of their division on several occasions, but they seemed
unsupportive and unconcerned. In interviews with IIS, one Assistant
Section Chief commented that the SMAPAs personal relationships with
the Section Chief and the other Assistant Section Chief were the main
reason why they were unconcerned and failed to take appropriate action.
Ultimately, the SMAPA received a 60-day suspension for Unprofessional
Conduct On Duty and Insubordination, was demoted to a nonsupervisory position, and was reassigned to another office. Although the
Section Chief was also a subject of the investigation, no disciplinary
action was taken.
We concluded that the supervisors in this case should have
reported the allegations when they first occurred, rather than treating
such repeated and egregious misconduct as a local management issue.
The allegations that the SMAPA made repeated inappropriate sexual
comments and advances to multiple subordinates falls within Offense
Code 5.20, Sexual Harassment, described as making unwelcome or
unwanted sexual advances, requesting sexual favors, or engaging in
other verbal or physical conduct of a sexual nature.
The impressions that the Section Chief and the Assistant Section
Chief were unsupportive and unconcerned about the SMAPAs alleged
conduct and the belief of at least one other Assistant Section Chief that
the handling of the matter was influenced by their personal relationship
with the subject provide additional evidence for why the allegations
should have been referred to headquarters at the outset. Further, the
division managements failure to promptly report the alleged misconduct
prevented the IIS from referring these allegations to the OIG for possible
investigation when they were first discovered.
Case #2: In another case, FBI supervisors counseled a subject twice
before reporting alleged sexual harassment to the IIS. According to the
IIS case file, in December 2008, an FBI Training Assistant reported that a
probationary Fingerprint Examiner was making unwanted sexual
advances toward the Assistant. The misconduct began in November
2008, when the Fingerprint Examiner (the subject) requested a private
meeting with the Assistant and, despite being married, confessed an
infatuation with the Assistant. The subject sent numerous e-mails and
16

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

relationship. However, the subject persisted, discussed in e-mail his
plans to leave his wife, and wrote that he turned down sexual relations
with his spouse because of the unrequited infatuation with the Assistant.
The Assistant reported these concerns to first-line supervisors, and they
counseled the subject but did not notify the IIS. The subject admitted
the misconduct and apologized to the Assistant.
Despite the initial counseling session and the subjects admission
and apology to the Assistant, the subject continued to make unwanted
advances. In January 2009, the Assistant made another report to firstline supervisors alleging continued unwanted advances, and they again
counseled the subject without notifying the IIS. The supervisors also
moved the subjects workspace from the immediate proximity of the
Assistant and provided him with a copy of the FBIs Sexual Harassment
Policy.
In February 2009, the first-line supervisors reported the
allegations to the divisions executive management, who met with the
subject and decided to report the matter to the IIS. In the electronic
communication to the IIS, the reporting division described the situation
as deplorable and unacceptable, though they indicated that they
believed their prior course of action was appropriate because the subject
was a probationary employee who was being transferred to another
unit. 23
We concluded that even though the FBIs reporting policy leaves
discretion as to reporting allegations to IIS, the supervisors should have
reported the incidents described above to the FBI IIS when they first
occurred, rather than treating such conduct as a management issue.
Despite division managements attempts to rectify the situation through
counseling, there was e-mail and text message evidence that documented
the subjects continued unrequited sexual advances, conduct that is
clearly prohibited by FBI Offense Code 5.20, Sexual Harassment.
In addition, the FBI offense table does not designate sexual
harassment as an offense warranting investigation in the field rather
than at headquarters. According to the IIS Supervisors Guide, offenses
designated as Delegated Investigation Only (DIO) or Delegated
The IIS did not investigate the matter but agreed to monitor the situation,
instructing the reporting division to make an immediate report if any other
developments materialized, and the employee was not disciplined. By failing to take
action, there is a risk that other FBI employees may experience the misconduct alleged
by the Assistant.
23

17

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

adjudicated by supervisors and Assistant Inspectors In Place (AIIP) in the
field. Typically, property-related and general misconduct allegations are
designated as DIO, DIA, or both. Because the alleged misconduct fell
within the Sexual Harassment offense category, however, an immediate
report to the IIS was warranted. Further, we found the supervisors
failure to promptly report the alleged misconduct prevented the IIS from
referring these allegations to the OIG for possible investigation when they
were first discovered.
USMS
We found that in 9 of the 81 allegations (11 percent) we reviewed,
USMS supervisors failed to report allegations of sexual misconduct and
sexual harassment to the Office of Professional Responsibility, Internal
Affairs (OPR-IA) as required by policy, and instead handled matters in
the field. The OIG did not learn about the alleged misconduct when it
first occurred.
According to USMS Policy Directive 3.3, Performance & Related
Matters, Human Resources, Discipline and Adverse Actions, USMS
supervisors are required to promptly report, through channels, to the
OPR-IA alleged infractions of statutes or regulations or other misconduct
that may warrant discipline. In interviews, OPR-IA officials stated that
supervisors in the field must report all alleged misconduct or criminal
activity, whether on duty or off, to headquarters. Despite this clear
directive, we found instances where the allegations were not reported
when they were first discovered. We discuss two cases below.
Case #1: A USMS supervisor failed to promptly report allegations that a
Deputy U.S. Marshal (DUSM) solicited prostitutes while on an extradition
mission in Bangkok, Thailand. According to the case file, the supervisor
learned about the allegations when the DUSMs colleague reported the
matter to management. At that time, the supervisor met with the DUSM;
the DUSM admitted the misconduct and received an oral admonishment.
The USMS OPR-IA learned about the allegation when the State
Department referred the allegation to the OIG and the OIG notified the
OPR-IA. In an e-mail to OPR-IA, the supervisor explained that the
allegation was not reported to the OPR-IA at the outset because no
formal complaint was made against the DUSM. 24
Ultimately, the OPR-IA administratively closed the allegation and referred the
allegation back to the originating district. The supervisor took no further action, and
the matter was closed.
24

18

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

that the DUSMs conduct was not misconduct but simply amounted to a
personal indiscretion and that handling the matter internally seemed
appropriate at the time. However, the supervisor admitted that the
failure to report was an error in judgment, stating, The only thing I
wouldve regretted about how I handled this, was that I did not call
internal first. We determined that the supervisor was not investigated
or disciplined for failing to report the matter. The supervisor reportedly
notified the U.S. Marshal, who also did not report the allegations to the
OPR-IA.
We found that the district managements failure to promptly report
these allegations violated the USMS policy requiring all employees to
report allegations of misconduct, whether on duty or off. Although the
OIG ultimately learned about this incident through a State Department
referral, it was the district managements responsibility to report these
allegations to OPR-IA when they first were received.
Case #2: An Acting Supervisory Deputy U.S. Marshal (SDUSM) reported
to district executive management allegations that a DUSM had an
inappropriate relationship with the common law spouse of a fugitive.
However, the Acting Chief Deputy U.S. Marshal, other district executive
management, and a representative of the Office of General Counsel
(OGC) failed to report these matters to OPR-IA and instead counseled the
DUSM.
According to the OPR-IA report of investigation, an Acting SDUSM
learned that a Deputy U.S. Marshal had entered into a romantic
relationship with the common law spouse of a USMS fugitive. The Acting
SDUSM contacted the USMS Office of General Counsel, Acting Chief
Deputy U.S. Marshal, and another SDUSM in the district to determine
how to handle the situation. Three supervisors instructed the DUSM to
terminate the relationship, but the DUSM continued to pursue it without
their knowledge for approximately 1 year. Neither the supervisors nor
the OGC representative with whom they consulted reported the
allegations to the OPR-IA.
When the relationship ended, the fugitives spouse lodged a
complaint with the OIG, which referred the allegation back to USMS
OPR-IA for handling as a management referral. 25

The DUSM was removed for the misconduct but appealed to the Merit
Systems Protection Board and reached a settlement, allowing the DUSM to resign.
25

19

Although the Acting SDUSM reported the matter through the chain
of command when the incident was first discovered and the Acting
SDUSM sought guidance from OGC on how to handle the issue, both
district management and the OGC failed to promptly report these
allegations to the OPR-IA. This also resulted in the OIG not learning
about the misconduct when the allegation was first discovered.
In the next chapter, we discuss issues that we discovered in the
security process.

20

CHAPTER 2: SECURITY OF OPERATIONS

At ATF, DEA, and USMS, we found there is a lack of coordination
between the internal affairs offices that investigate sexual misconduct
allegations and the offices responsible for ensuring employees meet the
requirements to hold security clearances, despite explicit policies
requiring such coordination. We determined that in most cases where
internal affairs received allegations that employees reportedly engaged in
high-risk sexual behavior, security personnel were not informed about
these incidents until well after they occurred or were never informed. 26
This was true even though these three components each have policies
requiring some coordination between their internal affairs and security
personnel and even though such behavior has the potential to expose the
employees to coercion, extortion, and blackmail, presenting serious
security risks for the components.
By contrast with the other three law enforcement components, we
found that the FBI has taken a better approach to addressing such
potential security issues and we determined that all misconduct
allegations were referred to FBI security personnel for review.
Specifically, the FBI Internal Investigations Section refers all misconduct
allegations to the Security Division, Analysis and Investigations Unit
(AIU) for a determination as to whether the allegation raises security
risks for the FBI or whether the allegation raises concerns about the
employees continued eligibility to hold a security clearance. If these
risks are present, AIU opens a parallel investigation.
ATF, the DEA, and the USMS have delegated authority from the
Departments Security and Emergency Planning Staff to grant National
Security Information (NSI)
Clearances up to the Top Secret Component Employees Holding
Security Clearance in 2013
level, while FBI has
ATF
4,657
independent statutory
DEA
9,401
authority to adjudicate to the
USMS
3,063
Top Secret level. At all the
FBI
All 35,344 employees hold at
components, if a higher
least a Top Secret Clearance
security clearance is required,
Source: Component Security Offices
the SEPS adjudicates the
clearance.
High-risk sexual behavior involves a criminal offense, indicates a personality
or emotional disorder, reflects lack of judgment or discretion, or may subject the
individual to undue influence or coercion, exploitation, or duress can raise questions
about an individuals reliability, trustworthiness, and ability to protect classified
information.
26

21

The law enforcement components are required to ensure their

employees initial and continued eligibility for access to classified
information. Security personnel throughout the federal government use
the Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information (Guidelines) to make these determinations. 27
The Guidelines are comprised of three parts: the concern, the
potentially disqualifying conditions, and mitigating factors. There are
13 areas of concern described in the Guidelines. Specifically,
Adjudicative Guideline D: Sexual Behavior outlines various types of
sexual behavior security personnel should consider, including sexual
behavior:
of a criminal nature, whether or not the individual has been

prosecuted;

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

sexual behavior that the person is unable to stop or that may be
symptomatic of a personality disorder;
that causes an individual to be vulnerable to coercion, exploitation,
or duress; and
of a public nature and/or that reflects lack of discretion or

judgment.

Although ATF, the DEA, and the USMS have established policies
requiring some level of coordination between their internal affairs offices
and security personnel, we found this coordination did not always occur
in practice. The following sections discuss the lack of coordination at
ATF, the DEA, and the USMS.
ATF
Of the 40 sexual misconduct and sexual harassment cases, we
found 3 substantiated cases and 1 administratively closed case involving
high-risk sexual behavior where the Internal Affairs Division (IAD) failed
to refer the allegations arising between fiscal year 2009 through fiscal
year 2012 to the Personnel Security Branch (PSB) to determine if they
27 The 13 areas of concern described in the Adjudicative Guidelines are:
(A) Allegiance to the United States; (B) Foreign Influence; (C) Foreign Preference;
(D) Sexual Behavior; (E) Personal Conduct; (F) Financial Considerations; (G) Alcohol
Consumption; (H) Drug Involvement; (I) Psychological Conditions; (J) Criminal Conduct;
(K) Handling Protected Information; (L) Outside Activities; and (M) Misuse of Information
Technology. See generally Memorandum from Stephen J. Hadley, White House
Assistant to the President for National Security Affairs, Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, December 29, 2005.

22

presented potential security risks for ATF and for the employees
involved. 28 We determined that this occurred because the IAD had not
established a process for reporting misconduct allegations to the PSB.
We concluded that because there was no process for notifying the PSB
about misconduct allegations, the PSB was hampered in its ability to
assess an employees continued eligibility to hold a security clearance.
According to ATF Order 8610.B, the IAD must report to PSB any
conditions that could raise a security concern as defined by the ATF
Adjudicative Guidelines. 29 Specifically, the IAD evaluates an allegation
and drafts an incident report. Once the Assistant Director of Office of
Professional Responsibility, Security Operations (OPRSO) reviews the
allegation, the Order requires the OPRSO or the IAD to report any
conditions that could raise a security concern to the PSB. If the PSB
believes the employees behavior is an area of concern under the
Adjudicative Guidelines, the PSB may suspend an employees eligibility
for access to classified information, pending the conclusion of the IAD
investigation.
In interviews, IAD and PSB officials told us that the IAD typically
does not provide information to the PSB about current investigations
where IAD does not believe that there is an immediate security risk, out
of concern that doing so may compromise its work, particularly when the
subject is not aware they are being investigated. PSB officials told us
this is problematic because IAD is not familiar with the Adjudicative
Guidelines, and IAD is not in the best position to determine whether an
allegation poses a security risk.
PSB officials told us that they have made numerous attempts to
establish a process for the referral of misconduct allegations raising
security concerns, but a process had not been established during our
review period. However, IAD officials stated that it was a priority of the
An allegation is substantiated when it has gone through the entire
disciplinary process, reporting, investigation, and adjudication, and the component has
determined that the subject committed the alleged misconduct. The administratively
closed case involved allegations that an ATF agent and evidence custodian failed to
properly secure drug evidence. The case file also revealed allegations that the same ATF
agent had inappropriate relationships with a particular female confidential informant
(CI). Although ATF decided that the latter allegations did not warrant investigation, the
agents supervisor counseled the subject regarding his relationships with CIs. The
substantiated cases involved an inappropriate relationship with a criminal element
alleged to be a cocaine user, the arrest of an ATF employee for failing to pay for a visit to
a massage parlor, and the solicitation of multiple consensual sexual partners by an ATF
employee.
28

The ATFs Adjudicative Guidelines are a restatement of the Adjudicative

Guidelines applying to all federal employees holding a security clearance.
29

23

new management in the OPRSO to establish a process for referring

misconduct allegations raising security concerns. At the time of our
review, we found that PSB was made aware of an allegation only if it was
self-reported, if the allegation received media attention, or if an employee
involved in the disciplinary process decided to notify the PSB. 30 As a
result, the PSB was not aware of all potential security risks as they
arose.
In interviews, we also learned that, even when the IAD refers a
matter to the PSB, the IAD may provide the PSB with only the proposal
and decision letters once a misconduct case is adjudicated. According to
PSB officials, the IAD routinely denied PSB access to the full IAD report
of investigation when an allegation raised security concerns. Instead,
IAD provided the proposal and decision letters issued to the employee,
which we found often contained only a brief synopsis of the case and do
not include important details that could be relevant to a determination
regarding the appropriateness of an employee maintaining a security
clearance. Other than citing general privacy concerns, IAD officials could
not explain why they routinely do not provide the PSB with the reports of
investigations.
One case in particular illustrates the importance of the need for
sustained coordination between the PSB and the IAD on matters with
potential security concerns. The case involved the solicitation of multiple
consensual sexual partners by an ATF employee on temporary duty.
This case is discussed in greater detail below.
Case Example: In November 2009, an ATF Director of Industry
Operations (DIO) who holds a Top Secret security clearance was on
temporary assignment. According to the IAD report of investigation, the
DIO solicited consensual sex with anonymous partners and modified a
hotel room door to facilitate sexual play. In addition, the DIO removed
smoke detectors from the hotel room and inadvertently caused damage to
the hotels centralized fire detection system. When the hotel supervisor
contacted the local police, the DIO admitted the conduct and told local
police this type of conduct was not an isolated incident for him and had
occurred in the past. The DIO pled guilty to one count of misdemeanor
fire prevention interference. The DIO was placed on inactive probation
for 12 months and was ordered to pay a fine and court costs. The
incident received significant media attention in the local area.

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

disciplinary process are the: (1) Internal Affairs Division, (2) the Professional Review
Board, and (3) the ATF Deciding Official.
30

24

Even though this conduct would clearly have been relevant under
the Guidelines for determining the DIOs continued access to classified
information, we found the Internal Affairs Division failed to notify the
PSB about this case. The PSB became aware of the incident only when
an employee in the office read a news article about the case over a year
after the incident occurred, prior to which the DIO had maintained his
security clearance without review. Once the PSB became aware of the
matter, it requested the report of investigation from the IAD.
In interviews, we learned that the IAD would not provide the report
of investigation to the PSB and provided only the proposal and decision
letters. The proposal and decision letters described the incident but
failed to describe the pattern of high-risk sexual behavior discussed in
the report, specifically including the DIOs admission that he had
engaged in such conduct before. Ultimately, the DIO received a 14-day
suspension for the misconduct described above and will be subject to
additional scrutiny during the DIOs 5-year reinvestigation.
In interviews, PSB staff told us the DIOs conduct is an area of
concern identified in the Adjudicative Guideline on Sexual Behavior,
specifically described as a pattern of compulsive, self-destructive, or
high-risk sexual behavior that the person is unable to stop. According
to the Guideline, consensual sex with anonymous partners is also an
area of concern, particularly where it is of a public nature and/or that
reflects lack of discretion or judgment. The PSB told us the DIOs
admission that this type of conduct was not isolated and had occurred in
the past warranted a review of the DIOs Top Secret clearance. However,
this did not occur because the PSB did not receive the report of
investigation containing the admission.
We concluded that this case highlights how a failure by the IAD to
refer misconduct allegations to the PSB as they arise can prevent ATF
from addressing security threats in a timely fashion. To mitigate these
risks, we believe that all non-frivolous misconduct allegations involving
ATF employees should be referred to the PSB when they arise and that
the report of investigation should be included, when available. If
referring the allegation has the potential to compromise an IAD
investigation, the referral should still be made to PSB to allow security
personnel to monitor the situation while not discussing the potential
security violations with the employee until the IAD investigation is
completed or it agrees with IAD that notification of the employee is no
longer an issue. As a result of this review, the ATF has informed us that
a policy has been issued which will improve the coordination between
ATF IAD and ATF PSB.

25

DEA
Of the 77 sexual misconduct and sexual harassment cases we
reviewed, we found 6 substantiated cases during our review period
involving high-risk sexual behavior, among other things, where the DEA
Office of Professional Responsibility (OPR) failed to refer the allegations to
the Office of Security Programs (OSP). 31
According to the DEA Office of Professional Responsibility
Handbook, while conducting a preliminary inquiry and throughout the
investigation process of allegations of misconduct, OPR Inspectors are
required to evaluate whether a misconduct allegation raises security
concerns or whether the allegation compromises the employees
continued ability to hold a security clearance. 32 If an Inspector
determines that security issues are present, the Inspector consults the
Associate Deputy Chief Inspector (ADCI) or the Deputy Chief Inspector
(DCI). The ADCI normally oversees the investigation and approves the
final report. Even though the DEA OPR management personnel are not
as familiar with the Adjudicative Guidelines as are security personnel in
OSP, they have the sole discretion to determine whether the allegation
warrants referral to the OSP. If a referral is made, DEA OPR provides
investigative support to OSP in its review of the matter.
In interviews, we learned that there is no formal process for
referring misconduct allegations to OSP. Instead, the ADCI or the DCI
merely discuss the allegations with OSP at their discretion. If the DEA
OPR believes the case raises security issues, it provides OSP with access
to the complete case file. Unless the misconduct allegation raises an
immediate security concern, the referral does not occur until OPR
completes the subject and witness interviews, or until the entire
investigation is completed. DEA OPR officials explained that this is
because of the potential that current investigations may be compromised
if DEA OPR makes a referral to OSP while the subject or witnesses are
still being interviewed. The DEA acknowledges that, historically, there

This does not include four allegations where the subjects were DEA Task
Force Officers (TFO) or the subjects retired while under inquiry. We did not include the
TFO instances because the other components do not investigate TFO misconduct to the
extent that DEA investigates these types of allegations. We also did not include eight
allegations where a decision letter had not been issued as of this writing. Of the
allegations that were included, one allegation involved a Country Attachs improper
sexual relationship with a drug traffickers attorney, while the others involved two
allegations where DEA agents and employees solicited prostitutes in the United States
and overseas. The overseas prostitution case is discussed in detail in the text below.
31

32

DEA Office of Professional Responsibility Handbook, undated.

26

have been no formal procedures for ensuring that the DEA OPR notifies
the OSP of security clearance-related matters.
When referrals occur at the OPRs discretion, we found there is a
risk that it may not identify misconduct allegations raising potential
security concerns, which is neither the OPRs function nor its area of
expertise. Below, we discuss a case in which several DEA employees
working in an overseas office were alleged to have engaged in high-risk
sexual behavior of a type that would be relevant under the Guidelines for
determining their continued access to classified information, but where
the ADCI or the DCI failed to refer the allegations to OSP.
Case Example: During a series of interviews the DEA OPR conducted
from 2009 through 2010, former host-country police officers alleged that
several DEA agents, consisting of an Assistant Regional Director (ARD),
an Assistant Special Agent in Charge (ASAC), six Supervisory Special
Agents (SSA), and two line Special Agents formerly assigned to the an
overseas office, solicited prostitutes and engaged in other serious
misconduct while in the country. 33
The foreign officer allegedly arranged sex parties with prostitutes
funded by the local drug cartels for these DEA agents at their
government-leased quarters, over a period of several years. Although
some of the DEA agents participating in these parties denied it, the
information in the case file suggested they should have known the
prostitutes in attendance were paid with cartel funds. A foreign officer
also alleged providing protection for the DEA agents weapons and
property during the parties. The foreign officers further alleged that in
addition to soliciting prostitutes, three DEA SSAs in particular were
provided money, expensive gifts, and weapons from drug cartel members.
During the DEA OPR investigation, two DEA agents, who were
subjects of the investigation, alleged that one of the SSAs frequented a
The Assistant Regional Director (ARD) was not a subject of the subsequent
investigation of the allegations by the DEA, but was instead deemed a witness.
However, in interviews we learned that the DEA OPR Inspector assigned to the case had
recommended the ARD be made a subject in light of allegations that the ARD solicited
prostitutes at a farewell party held in the ARDs honor. DEA told the OIG that the
Inspectors recommendation was considered and weighed against the evidence by the
DEA OPR Senior Inspector, ADCI, and DCI, who all concluded that there was not
enough evidence to justify disciplinary action against the ARD. The OIG believes that
the parties who have the authority to determine whether there is sufficient evidence to
warrant disciplinary action are the DEA HRB and HRO, not the DEA OPR. The ARDs
failure to report other allegations that involved the solicitation of prostitutes and the
DEAs failure to make the ARD a subject of this investigation are discussed in Chapter
1, the Reporting Process and Chapter 3, the Investigation Process.
33

27

prostitution establishment while in their overseas assignment and often

took agents serving on temporary duty to this establishment and
facilitated sexual encounters there. Another former foreign officer made
similar allegations against the SSAs. Ultimately, 7 of the 10 agents
admitted attending parties with prostitutes while they were stationed.
The DEA imposed penalties ranging from a 2-day suspension to a 10-day
suspension. One of the line agents was cleared of all wrongdoing. 34
The DEA Inspector told us that prostitution is considered a part of
the local culture and is tolerated in certain areas called tolerance
zones. According to the Inspector, it is common for prostitutes to be
present at business meetings involving cartel members and foreign
officers. The DEA Inspector also stated that the acceptability of this type
of behavior affects the way in which federal law enforcement employees
conduct themselves in this particular country. The Inspector further
stated that prior to arriving in the country, agents needed better training
that explicitly prohibits this type of conduct. 35
DEA OPR did not refer this case to OSP to identify potential
security risks for DEA and to assess the subjects continued eligibility for
a security clearance. In interviews, we learned that the assigned
Inspector identified and discussed the potential security risks with OPR
headquarters management. In particular, the Inspector said that she
explained to OPR management that the fact that most of the sex parties
occurred in government-leased quarters where agents laptops,
BlackBerry devices, and other government-issued equipment were
We conducted multiple interviews with DEA officials regarding the manner in
which these allegations were handled before the case was finally adjudicated. Despite
evidence in the case file that many of the personnel we interviewed were involved with
this investigation and adjudication, only one interviewee, the assigned DEA OPR
Inspector, provided the OIG any meaningful information regarding this specific case in
our initial interview. We learned about the involvement of the others from records we
obtained after the matter was closed and, when we thereafter re-interviewed these
individuals, they indicated that they believed that they were not supposed to provide
information to us about pending matters. As noted previously, the OIG was entitled to
this information at the outset, and the failure to provide it to us in a timely fashion
unnecessarily delayed our review of this matter.
34

The Inspector told us that, for example, in the wake of the Cartagena
incident, the DEA instituted etiquette training also called fork and knife training for
DEA employees who are permanently deployed overseas. However, the DEA did not
initially provide this information to the OIG evaluators who examined the training the
DEA and other components provide to federal employees who travel abroad (See U.S.
Department of Justice Office of the Inspector General, Review of Policies and Training
Governing Off-Duty Conduct by Department Employees Working in Foreign Countries,
Report 15-2, January 2015).
35

28

present created potential security risks for the DEA and for the agents
who participated in the parties, potentially exposing them to extortion,
blackmail, or coercion.
Even though the Inspector said she discussed these risks with
DEA OPR management, OPR management officials we interviewed said
that they did not refer the allegations to OSP because OPR management
did not believe that the special agents conduct rose to the level of a
security risk requiring a referral. It is also unclear whether the subjects
self-reported these incidents, though if they did, there is no record of any
review having been conducted by the OSP. 36 OSP officials told us they
were not aware of this case and it was not referred to them.
We concluded that the alleged misconduct in this case clearly fell
within the areas of concern identified in the Adjudicative Guidelines
regarding continued access to classified information based on Sexual
Behavior. Further, because prostitutes in the agents quarters could
easily have had access to sensitive DEA equipment and information, the
misconduct also would be relevant to the concerns identified in the
Adjudicative Guidelines on Foreign Influence, Personal Conduct, and
Handling Protected Information Guidelines. 37 On both grounds, the
absence of clear guidelines requiring the prompt reporting of this
misconduct resulted in an ongoing security risk not being evaluated by
the unit within the DEA assigned to that important duty. As a result of

36 Department employees who have access to National Security Information

(NSI), are in high-risk positions, or carry weapons in their official capacity are required
to report in writing any on or off-duty allegations of misconduct to their respective
Security Programs Manager. See generally Memo to Security Programs Managers, from
James L. Dunlap, Department Security Officer, Justice Management Division, U.S.
Department of Justice, Self-Reporting of Arrests and Allegations of Misconduct,
September 10, 2004. In this case, we could not determine whether the subjects of the
investigation self-reported the allegations discussed above.

We found that some of the DEA Special Agents alleged to have solicited
prostitutes were also involved in the investigations of the two former host country police
officers who made these allegations. If these Special Agents had served as government
witnesses at the trials of these defendants, their alleged misconduct would have had to
be disclosed to defense attorneys and would likely have significantly impaired their
ability to testify at trial. Ultimately, the government reached plea agreements with both
defendants and the DEA Special Agents misconduct did not prevent the government
from achieving a favorable result in the narcotics conspiracy case. See Giglio v. United
States, where the Supreme Court held that to ensure a fair trial, prosecutors must
disclose material evidence that serves to impeach or undermine the credibility of
government witnesses.
37

29

this review, the DEA has informed us that steps are being taken to
improve the coordination between the DEA OPR and the DEA OSP. 38
USMS
Of the 81 sexual misconduct and sexual harassment cases, we
found 2 administratively closed cases involving high-risk sexual behavior
where the Office of Internal Affairs failed to refer allegations to Office of
Security Programs, Tactical Operations Division (OSP TOD) until well
after the incidents occurred. These incidents may have presented
potential security risks for the USMS and for the employees involved. 39
This occurred because the Office of Professional Responsibility, Internal
Affairs (OPR-IA) lacks established written criteria for determining
whether an allegation warrants a headquarters investigation or an
investigation in the field and OPR-IA does not refer allegations that are
investigated in the field to OSP TOD. The OPR-IA refers to OSP TOD only
allegations investigated at headquarters, meaning that others sent back
to the field are not referred to OSP TOD or reviewed there for potential
security implications.
According to OPR-IA officials, the USMS employs a three-tier
evaluation process to determine whether a case should be delegated to
the originating office or fully investigated by headquarters Inspectors.
The Deputy Chief Inspector, the Chief Inspector of OPR-IA, and the
Deputy Assistant Director of the Office of Professional Responsibility
review all allegations to determine where they will be investigated. Even
though the USMS Table of Offenses and Penalties offers guidance on the
range of penalties appropriate for certain types of misconduct, OPR-IA
officials told us the reviewers do not consult it. Instead, they rely on
their institutional knowledge and experience, choosing the cases they
investigate without the benefit of written criteria. OPR-IA officials said
The DEA informed the OIG that on May 5, 2014, an Inspection Division
Coordination Committee was formed. An ongoing project of this committee is to
formalize the process whereby DEA OPR makes timely notification to DEA OSP in
instances when a security clearance issue is identified in a DEA OPR investigation. We
were informed that on October 22, 2014, the committee made recommendations to
address this issue but that no formal actions have been taken on any of the
recommendations.
38

The first case involved an employees improper association with a criminal

element. The case was monitored by the OIG. Specifically, it was alleged that a USMS
employees ex-wife was married to a suspected drug trafficker under DEA investigation.
Although the USMS employee had dealings with the drug trafficker on numerous
occasions, DEA and OIG found no evidence of criminal activity on the part of the USMS
employee. The second case involved a Deputy U.S. Marshal (DUSM) who solicited
prostitutes during an extradition mission overseas. This case is described in detail
below.
39

30

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

originating office in this matter, the OPR-IA does not refer the allegation
to the OSP TOD.
One case of particular concern involved the solicitation of
prostitutes overseas.
Case Example: According to the case file, in 2010, two Deputy U.S.
Marshals (DUSMs) were assigned to conduct an extradition of a criminal
defendant in Bangkok, Thailand. While in Thailand, one of the DUSMs
was unavailable and, each time U.S. State Department officials
attempted to contact him, two women with heavy foreign accents
answered the phone and stated the DUSM could not be disturbed. A
local investigator for the State Department spoke to one of the women in
Thai, confirmed she was a prostitute, and instructed the DUSMs
colleague to notify their management of the incident upon their return to
the United States.
As instructed, the DUSMs colleague notified the supervisor about
the incident. When the supervisor questioned the DUSM, the DUSM
admitted having sexual relations with prostitutes while on the extradition
mission. According to an e-mail in the case file, the supervisor orally
admonished the DUSM and allegedly removed the DUSM from the list of
Marshals permitted to go on extraditions. However, the USMS told us
that there is no extradition list at USMS and assignments for
extraditions are based on seniority in a DUSMs respective district. Since
this incident, the DUSM has conducted at least one extradition overseas,
even though the State Department stated in e-mail to the OIG that the
DUSM was not welcome to return to Thailand. 40
Based on our review of the case file, we determined that USMS
Internal Affairs was not aware of the allegation until the State
Department contacted the OIG directly to make a complaint, and the OIG
subsequently referred the allegation back to USMS Internal Affairs for
review since it did not involve an allegation of criminal conduct or
administrative misconduct by a high-ranking component employee. 41

We were not able to determine which country the DUSM conducted

extraditions in after this incident.
40

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

Affairs is also discussed in Chapter 1. As discussed there, when we asked the
supervisor why the allegation was not referred to USMS Internal Affairs, the supervisor
asserted that supervisor did not believe the incident was misconduct, characterizing it
instead as a personal matter between him and his wife.
41

31

According to the case file, once the incident was reported to the
OPR-IA, the Deputy Chief Inspector and the Chief Inspector decided to
refer the matter back to the originating office for investigation, because
such allegations would not warrant a suspension of 15 days or more. In
addition, despite the DUSMs admissions to the supervisor, USMS
officials told us this allegation was not investigated at headquarters
because there was no evidence the DUSM had sex with prostitutes, and
it was only the opinion of the State Department Deputy Regional Security
Officer and a local investigator that the woman who answered the phone
call was a prostitute. Further, in interviews with OPR-IA officials, we
learned that there is no USMS policy prohibiting the solicitation of
prostitutes in jurisdictions where prostitution is legal or tolerated. 42 As a
result, according to these officials, the allegations would not warrant a
suspension of 15 days or more and therefore did not require a
headquarters investigation. Since a headquarters investigation did not
occur, USMS security personnel were not notified about the misconduct.
Ultimately, the matter was closed at the originating office without
an investigation and USMS security personnel were not informed about
the incident until the subjects 5-year reinvestigation, nearly 2 years after
the incident occurred. During the intervening years, the subject
continued to hold a security clearance, with no review of the risks
attendant to his behavior abroad.
However, USMS security personnel confirmed that the nature of
this allegation and the involvement of the State Department constituted
potential disqualifying behavior as described in Adjudicative Guidelines
on Sexual Behavior. We learned that the OSP TOD required the DUSM
to admit the conduct to the DUSMs spouse in order to mitigate potential
security risks, such as potential exposure to coercion, extortion, and
blackmail. Although the impact of the DUSMs conduct may have been
mitigated in this manner, it took nearly 2 years after the incident to do
so. Accordingly, the USMS was, at the very least, left open to potential
security risks for longer than necessary.
This case exemplifies the need for better coordination between
USMS Internal Affairs and the OSP TOD. All non-frivolous misconduct
allegations involving USMS employees should be referred to OSP TOD,
whether the allegation is investigated at headquarters or referred back to
the originating office, to mitigate potential security risks when they are
The OIG also examined the off-duty conduct policies that the USMS and
other components provide to employees who travel abroad (See U.S. Department of
Justice Office of the Inspector General, Review of Policies and Training Governing OffDuty Conduct by Department Employees Working in Foreign Countries, Report 15-2,
January 2015).
42

32

first discovered. Failing to do so presents security risks for USMS,

hampers USMSs ability to determine an employees continued eligibility
to hold a security clearance, and has the potential to expose the
employee involved to coercion, extortion, and blackmail for years, just as
occurred in the case discussed above.
FBI
In contrast, the FBI has taken a better approach to addressing
potential security issues. The FBI Internal Investigations Section refers
all misconduct allegations to the Analysis and Investigations Unit (AIU).
The AIU then determines whether the allegation raises security risks for
the FBI or whether the allegation raises concerns about the employees
continued eligibility to hold a security clearance. If these risks are
present, the AIU opens a parallel investigation. We consider the FBIs
approach to be a best practice, and we believe ATF, the DEA, and the
USMS should create a similar process. In the next chapter, we discuss
issues that we discovered in the investigation of allegations of sexual
misconduct and sexual harassment to headquarters.

33

CHAPTER 3: THE INVESTIGATION PROCESS

Components should have established criteria to determine whether
an allegation is a management matter that can be handled locally or
whether it warrants full investigation at headquarters. We found that
ATF, DEA, and FBI have criteria regarding opening at their headquarters
of investigations into allegations of sexual misconduct and sexual
harassment. Although ATF generally followed established criteria for
making such decisions, we found instances in which the FBI failed to
follow its criteria and instances where the DEA failed to fully investigate
allegations. USMS does not have established criteria, but generally
seemed to make appropriate determinations about when to initiate an
investigation in such matters.
DEA and FBI have established criteria to determine whether, after
an allegation has been reported to headquarters, it should be
investigated there or it can be referred back to be handled locally as a
management matter. However, we found instances at DEAs Office of
Professional Responsibility where it failed to fully investigate an
allegation, or to even open an investigation on a particular subject,
despite a recommendation from the assigned investigator.
At the FBI, we found instances where the Internal Investigations
Section (IIS) at FBI headquarters did not open an investigation into
allegations of sexual misconduct and sexual harassment, despite
evidence in the case file reflecting that the subject had committed similar
alleged misconduct in the past. In some instances, FBIs Internal
Investigations Section referred such matters back to the field and
recommended only counseling and sensitivity training.
The USMS does not have established criteria for determining
whether an allegation should be handled locally or investigated at
headquarters. Nevertheless, we generally found that the USMS made
appropriate determinations about when to initiate an investigation at
headquarters in such matters. Finally, we found that ATF generally
followed its established criteria for determining whether an allegation
should be handled locally or investigated at headquarters.
We describe our concerns about the DEAs and the FBIs practices
in more detail below.

34

DEA
Generally, we found that the DEA OPR fully investigates all
reported allegations of misconduct and does not refer matters back to
local supervisors unless the matter reported is clearly a management or
performance-related issue. This was true in 74 of the 77 cases
(96 percent) we reviewed. We found that in 2 of the 77 cases the DEA
OPR failed to fully investigate such cases, and we believe the DEA OPR
closed the matters prematurely. While not great in number, we found
these instances particularly troubling, and discuss them briefly below.
In related allegations involving the agents discussed in Case 1 of
Chapter 1 above, the initial complaint alleged that a third agent also was
involved in the solicitation of prostitutes. In an interview with the DEA
OPR, the agent admitted traveling to the same overseas office on TDY
approximately 20 times, to knowing both of the other subjects of the
prostitution allegations, and to socializing with one of them. However, he
denied soliciting prostitutes or knowing whether the other two SAs had
solicited prostitutes.
Despite the third agents admissions, it appears from our review of
the file that the DEA OPR conducted only that one interview and then
closed this case. When we asked the DEA OPR Inspector assigned why
the case was closed without any additional investigation, the Inspector
stated, If you look a man in the eye and he answers no, then the answer
is no - to do more is above my pay grade. We disagree and, at the very
least, believe that the DEA OPR should have investigated further to
determine the validity of these allegations, especially given the
admissions regarding the agents association with the other two SAs.
The second case involved an Assistant Regional Director (ARD) who
allegedly solicited prostitutes at a farewell party held by the DEA
overseas Country Office in the ARDs honor, and on other occasions.
These allegations were made by a witness described in the DEA Case
Example in Chapter 2, who recalled that six prostitutes were present at
the farewell party, which took place in one of the agents governmentleased quarters. However, in his interview with DEA OPR, the ARD
denied the allegations, stating that if anyone said he attended parties
where prostitutes were present, they would be 100% lying.
Despite the DEA OPR Inspectors recommendation to include the
ARD as a subject, the DEA OPR did not do so or, as far as we could tell,
conduct any further investigation. Given the circumstances and the
nature of the allegations, we believe the DEA OPR should have further
investigated the allegations against the ARD, who was the highest
ranking official alleged to have been involved with prostitutes.
35

FBI
Although the FBI has established criteria for determining whether
an investigation should be opened at headquarters rather than being
handled locally, we found that in 53 of 218 cases (24 percent) the FBI did
not open headquarters investigations into allegations of sexual
misconduct and sexual harassment, including 4 cases where the subject
had reportedly committed such misconduct in the past. In 45 of these
53 cases (85 percent), the FBI closed the matter without further
investigation, counseled the subject, or the subject was disciplined on
other charges. In 8 of the 53 cases (15 percent), the allegations appeared
to fall within Offense Code 5.20, Sexual Harassment, requiring a
headquarters investigation, but FBI failed to conduct one and instead
referred the matters back to the field and recommended counseling and
training.
In interviews, we learned that the FBI Internal Investigations
Section relies on the FBI offense table and staff experience to determine
whether an allegation should be investigated at headquarters, referred
back to the field for investigation, or closed. The FBI offense table also
contains designations in certain offense categories where the
investigation can be delegated to the field, and there are no offense
categories of a sexual nature in the FBI offense table that allow for a field
investigation. Nevertheless, we found instances in which serious sexual
misconduct allegations were referred back to the field. We discuss two
cases below.
Case #1: According to case file we reviewed, on at least four occasions, a
Management and Program Analyst (MAPA) was alleged to have made
inappropriate comments of a graphic sexual nature to a contract
employee, which included comments about the contractors anatomical
body parts and breasts. The contractor was too embarrassed to repeat
the specific comments, but another employee who witnessed the alleged
misconduct reported it to division management. The contract employee
also alleged that the MAPA made inappropriate comments, not of a
sexual nature, that she perceived as demeaning to other female
employees.
Even though division management had counseled the MAPA in the
past for making demeaning comments to other employees, the IIS
declined to open an investigation. Instead, the IIS relied upon division
management to counsel the MAPA about the comments. During the
counseling, the MAPA stated that the comments were jokes between
friends and were not meant to be disturbing or offensive. The Unit Chief
documented the counseling and provided a written record to the MAPA
so he was clear as to what was discussed. The Unit Chief also changed
36

the MAPAs hours of work, closely supervised the MAPA, and sent the
MAPA to interpersonal skills training. The IIS was satisfied with the
division managements handling of the alleged misconduct and advised
the division to monitor the situation and report any further incidents to
headquarters.
We note that the Department has a zero tolerance policy on
harassment in the workplace. 43 In this particular matter, division
management appeared to treat the alleged conduct seriously by taking
some corrective action; but we nevertheless found these allegations
should have been fully investigated at headquarters because the
comments made about the contractor appear to fall within the Sexual
Misconduct Non Consensual offense category. Based on the FBI offense
table, this offense category warrants a headquarters investigation and
cannot be handled solely in the field. The Unit Chiefs description of the
misconduct as sexually harassing when reporting the allegations to IIS
and the fact that the penalty range of Sexual Misconduct NonConsensual does not include counseling provides additional support for
ensuring that the matter was investigated at FBI headquarters rather
than handled in the field.
Case #2: An anonymous complaint alleged that a Supervisory
Intelligence Analyst (IA) allegedly made unwanted sexual advances and
remarks to several female employees in five specified instances. One of
the female employees alleged that the subject followed her around the
office until she discovered the subject was doing so. Upon being the
discovered, the subject pretended that he had gotten lost, despite having
worked in office for 2 years. In another incident, the subject reportedly
made romantically suggestive remarks toward a female employee after
learning that she was single. The subject then initiated a hug with the
employee and touched their cheeks together. The female employees were
not identified in the complaint. Even though the IIS had received three
other complaints against the subject about other alleged misconduct, the
IIS declined to investigate the allegations and instead recommended that
the field division counsel the subject. 44
A few months after the first complaint, the IIS received a second
anonymous complaint alleging that the same subject had made an
inappropriate comment to a new IA in the division. The complainant
43

See http://ww.justice.gov/jmd/eeos/agmemo.html

This case was not originally provided by the FBI in response to our data and
document request, and was determined to be within the scope of our review with the
assistance of the OIG Investigations Division.
44

37

alleged that the subject stated to her, If I was not married, I would be all
about you. She further alleged that the subject preys on young females
that are fairly new to the Bureau and knows they are too afraid to report
his comments. The IIS again determined the allegations did not warrant
a full investigation at headquarters, and instead recommended that
division management treat the matter as a performance issue and
counsel the subject again. In a written comment on the allegation
summary, an IIS official noted, It is obvious someone does not like [the
subject].
Given the repeated nature and substance of the comments the
subject allegedly made, we believe that the alleged misconduct falls
squarely within Offense Code 5.20, Sexual Harassment, which includes
unwanted sexual advances. Since field investigations are not permitted
for this offense category, we found that the FBI IIS should have opened a
headquarters investigation as required by FBI policy.
In the next chapter of this report, we discuss issues that we
discovered in the adjudication process.

38

CHAPTER 4: THE ADJUDICATION PROCESS

Our review of the law enforcement offense tables found that the
FBI, DEA, and USMS offense tables contain specific offense categories to
address allegations of sexual misconduct and sexual harassment and to
provide guidance on the appropriate range of penalties that could be
imposed. 45 However, we determined that for some offense categories, the
DEA and USMS offense tables do not provide adequate explanations of
the types of behaviors that warrant possible disciplinary action. Further,
we found that these components applied general offense categories to
misconduct we believe is more appropriately addressed by the specific
sexual harassment and sexual misconduct offense categories contained
in their offense tables.
The ATF offense table does not contain specific offense categories
to address sexual misconduct and sexual harassment. Instead, the
offense table contains general descriptions of the types of misconduct
that could be charged under various offense categories with a broad
range of possible penalties. 46
While the FBI offense table contains specific language to address
the solicitation of prostitutes overseas even where the conduct is legal or
tolerated, we found that the ATF, DEA, and USMS offense tables do not
contain specific language to address this form of misconduct. 47 As a
result, the employees of these components may not know whether it is
prohibited and may not have adequate notice of the range of penalties
that could be imposed.
See Appendix 3 for detailed information on the types of offense
categories used by the law enforcement components to address sexual
misconduct and sexual harassment.

During adjudication, an adjudicative case file contains only information

relating to an individual subject. Therefore, when discussing the adjudicative process,
we refer to each subject as a case. Note that case in this chapter carries a different
meaning than in other sections of the report.
45

ATF, the DEA, and the FBI use activity codes that more accurately reflect
the type of alleged misconduct committed by an employee. Presumably, these codes
could be used to determine the nature and frequency of alleged sexual misconduct and
sexual harassment. However, the activity codes are assigned to an allegation at the
beginning of the investigation and may not reflect the allegations that were
substantiated at the close of the investigation.
46

See U.S. Department of Justice Office of the Inspector General, Review of

Policies and Training Governing Off-Duty Conduct by Department Employees Working in
Foreign Countries, Report 15-2, January 2015.
47

39

ATF
The ATF Guide for Offenses and Penalties (the Guide or ATF
offense table) is used to provide guidance concerning the types of
discipline that may result when an employee commits misconduct. The
Guide is divided into 11 sections. 48 Despite the extensive number of
offense categories, the Guide does not contain any specific category
designed to address sexual misconduct allegations. The ATF offense
table contains an offense category directed at supervisors for failing to
report allegations of sexual harassment, but it does not address the
underlying misconduct directly. Moreover, this offense category does not
define sexual harassment, and it is not specifically defined anywhere in
the table.
Based on the explanations provided in the Guide, there are a
number of general offense categories where sexual misconduct could be
charged. For example, under the offense category, Poor Judgment and/or
Conduct Unbecoming a Federal Employee/Special Agent, the explanation
describes, engaging in sexual activity in an ATF office space or
government vehicle as conduct that may warrant a charge under this
offense category.
In the explanation for the offense category Inappropriate Behavior,
the Guide states that an ATF employee who is inappropriate toward co
workers, subordinates, or supervisors by teasing, jokes, gestures, or
display of materials of a sexual nature, or an employee who makes
sexual remarks may be charged under this offense category. Given the
explanation contained in this offense category, misconduct equivalent to
sexual harassment could be charged under this offense category.
Finally, the explanation for the offense category Association with
Disreputable Persons describes improper personal relationships with
convicted felons, informants and subjects of investigations as conduct
they may be charged under this offense category. We describe ATFs use
of the offense categories below:
In 6 of the 12 (50 percent) adjudicated sexual misconduct
cases, the ATF Deciding Official charged employees under the
Poor Judgment and/or Conduct Unbecoming offense category.
The cases involved 1 improper association with a criminal
The 11 sections in the ATF Guide for Offenses and Penalties are:
(1) government property and resources, (2) government-owned vehicles, (3) ATF-issued
firearms, (4) improper use of force/weapons, (5) general integrity related misconduct,
(6) drugs and alcohol, (7) falsification, (8) misconduct connected to performance of
duties, (9) attendance, (10) improper handling of evidence or property taken into bureau
custody, and (11) security.
48

40

element case, 3 sexting cases, 1 case involving solicitation of

prostitutes, and the case we discussed in Chapter 2 involving
solicitation of multiple consensual sex partners while on official
travel. 49
In three cases, the subjects were charged with Misuse of their
Government Vehicle to facilitate an intimate or sexual
relationship. In two of these three cases, the subjects had also
committed multiple offenses (inappropriate relationship with a
subordinate in one case and lack of candor, falsification of
government documents, and misuse of government property in
the other case) and were charged accordingly.
The remaining three cases related to sexual harassment. Two
of the subjects committed misconduct described as a violation
of ATF Order 1050.5, Prevention and Elimination of Sexual
Harassment in the Workplace. However, as we noted above, this
offense category is not discussed in the ATF offense table as a
separate category. In one case the subject was removed from
service, while in another case the subject received a letter of
caution. 50 The three subjects were not charged under the
Inappropriate Behavior offense category, which contains
explanatory language in the offense table that describes
misconduct that is comparable to sexual harassment.
Although the unofficial offense category based on the ATF Order
captures the type of misconduct committed, the subject employees would
not have notice of the range of penalties because it is not included in the
ATF offense table.
In interviews, ATF officials acknowledged that there are no specific
offense categories in the ATF offense table to address sexual misconduct
and sexual harassment. According to these officials, the ATF
Professional Review Board and the ATF Deciding Official generally charge
employees who commit this type of misconduct using the Poor Judgment
and Conduct Unbecoming a Federal Employee/Special Agent offense
categories.
ATF officials also commented that this type of misconduct has not
been an area of concern because it appears to occur infrequently.
Based on the substantiated allegations described in the case file, the subject
could have been charged with Association with Disreputable Persons.
49

For the ATF employee who was removed from service, ATF has no additional
information that the employee appealed the decision through the MSPB.
50

41

However, ATF officials said that they recognized the deficiencies in their
offense table as compared to the other law enforcement components. We
were told that in early 2013 ATF constituted a working group to revise
the offense table to include new offense categories to address sexual
misconduct and sexual harassment. On January 29, 2015, we were told
that the ATF Guide to Offenses and Penalties had been updated on
October 1, 2014; however, no new offense for sexual misconduct and
sexual harassment was included because ATF believes that the existing
charges already address those matters. In addition, ATF informed the
OIG that the working group will be reviewing the ATF Guide for Offenses
and Penalties on an annual basis.
In interviews, we learned that the offense table is included in the
Integrity Bulletins provided to employees. However, because the offense
tables do not contain specific language regarding prohibited behavior,
ATF employees may not know what types of conduct are prohibited and
may not have adequate notice of the range of penalties that could be
imposed. In addition, there is also a risk that inconsistent penalties
could be imposed for similar misconduct based upon vagaries in
classification. Further, it may be difficult for ATF to easily determine the
frequency of this type of misconduct or any trends in the types of
allegations reported that might be helpful in assessing the need for
further guidance and training.
DEA
The DEA Guide of Disciplinary Offenses and Penalties (the DEA
Guide or DEA offense table) is divided into 11 sections and is the offense
table DEA uses to provide guidance concerning the types of discipline
that may result when an employee commits misconduct. 51 There are
seven offense categories in the DEA offense table summarized in
Appendix 3 that could address allegations of sexual misconduct and
sexual harassment. Four of the seven categories are specifically
designed to address such behavior. The DEA Guide describes the offense
category Unprofessional or Inappropriate Conduct of a Sexual Nature as
teasing, jokes, actions, gestures, display of materials or remarks of a
sexual nature. The penalty for this offense ranges from reprimand to
removal.

The 11 sections in the DEA Guide of Disciplinary Offenses and Penalties are:
(1) attendance issues, (2) fiscal issues, (3) false statements or incorrect official
documents, (4) harassment/discrimination, (5) law enforcement specific offenses,
(6) failure to follow, (7) negligent work, (8) health and safety issues, (9) security issues,
(10) supervisory misconduct, and (11) conduct prejudicial to the DEA and the
Department.
51

42

The DEA Guide cites Title VII of the Civil Rights Act of 1964 when
defining the Sexual Harassment offense category in the offense table,
which also contains an offense category for Retaliation against an
employee resulting from or in connection with an allegation of sexual
harassment. However, the only penalty suggested for both of these
violations is removal.
The DEA Guide also contains other offense categories that do not
specifically address sexual misconduct but may, under certain
circumstances, be considered sexual misconduct, including Improper
Association with a Convicted Felon, Confidential Source and/or Persons
Connected with Criminal Activity, Disrespectful or Unprofessional Conduct,
Conduct Unbecoming a DEA Employee, and Criminal, Dishonest and
Notoriously Disgraceful Conduct. The categories Conduct Unbecoming a
DEA Employee and Criminal, Dishonest and Notoriously Disgraceful
Conduct are not defined in the offense table.
We found that even though two DEA offense categories are
specifically designed to address allegations of sexual misconduct and
sexual harassment, no DEA employees with substantiated allegations
were charged under either of them. Instead, in 20 of 33 (61 percent)
adjudicated cases, the employees were charged under the general offense
categories. Where the subject committed multiple offenses, they were
charged under additional offense categories based on the facts of the
case. We describe the DEAs use of the offense categories below:
In 10 adjudicated cases we reviewed, the alleged misconduct
appeared to involve allegations of sexual harassment, yet none
of the subjects were charged under that offense category.
Instead, they were charged with Conduct Unbecoming DEA
Agent/Non-Agent exclusively, or with both Conduct Unbecoming
and Failure to Follow Written Instructions.
In interviews, a DEA disciplinary official said that he is reluctant to
charge an employee with sexual harassment because he believes most
DEA employees do not commit sexual harassment that would rise to the
level of a Title VII violation, for which the only penalty under the offense
table is removal. When we asked why the Sexual Harassment offense
category is in the offense table if DEA officials do not use it, one DEA
official who is heavily involved in the discipline process responded, Its
for show.
In seven adjudicated cases we reviewed, the alleged misconduct
appeared to involve the solicitation of prostitutes, both
domestically and overseas, but none of the subjects were
charged under Criminal, Dishonest or Notoriously Disgraceful
43

Conduct, a category that other government agencies use to

address this form of misconduct. Instead, they were charged
with Conduct Unbecoming a DEA Employee, Poor Judgment, or
were charged under both of these offense categories. However,
we determined that there is no Poor Judgment offense category
in the DEA Guide. Therefore, some DEA employees are being
charged inconsistently, which raises a potential that employees
may receive inconsistent penalties for similar misconduct.
In three adjudicated cases we examined, the alleged misconduct
involved multiple offenses, including an inappropriate
relationship between a supervisor and subordinate, an
inappropriate relationship between a DEA employee and a
vendor, improper association with a criminal element, and
covertly videotaping a naked female. These cases could have
been charged under Unprofessional or Inappropriate Conduct of
a Sexual Nature or Improper Association with a Convicted Felon
rather than Conduct Unbecoming and Poor Judgment. As a
result, some DEA employees are being charged inconsistently
for similar conduct because proposing/deciding officials have
greater discretion when imposing discipline under these catch
all offense categories.
By contrast, in the remaining 13 adjudicated cases we reviewed,
DEA officials appear to have charged the subject under the most
applicable offense category. In one case, the alleged misconduct involved
an improper association with a confidential informant (sexual
relationship) and making false statements and the subject was charged
under those respective offense categories. The remaining 12 cases
involved the transmission of sexually explicit e-mail, text messages, and
images. Those cases were charged under Misuse of Government Property.
In interviews, DEA officials explained that they are afforded wide
latitude when making discipline decisions under the Conduct
Unbecoming a DEA Employee offense category, which supports penalties
ranging from a letter of reprimand to removal. When we asked why DEA
officials do not charge under the Criminal, Dishonest or Notoriously
Disgraceful Conduct or Inappropriate Conduct of a Sexual Nature offense
categories where the subject had solicited prostitutes, one DEA official
told us that Conduct Unbecoming or Poor Judgment has always been
charged in cases of this type. The DEA official also stated that the
Criminal, Dishonest or Notoriously Disgraceful Conduct offense category
offers less flexibility to proposing and deciding officials, with penalties
ranging from suspension of 14 days to removal. He said that therefore,
DEA officials have traditionally not used it. However, our review of the
44

DEA Guide showed Unprofessional or Inappropriate Conduct of a Sexual

Nature contains the same penalty range as Conduct Unbecoming.
This DEA official also told us that DEA officials have not charged
employees with a penalty greater than a suspension of 14 days (a
suspension of greater than 14 days would be considered an adverse
action) in prior cases involving the solicitation of prostitutes where the
conduct was legal or tolerated in the jurisdiction. He said that therefore
it would not be appropriate to charge a DEA employee under the
Criminal, Dishonest or Notoriously Disgraceful Conduct offense category in
such circumstances.
We found that DEA has two specific offense categories, Sexual
Harassment and Unprofessional or Inappropriate Conduct of a Sexual
Nature, that are adequate to address allegations of sexual misconduct
and sexual harassment, and yet we observed that DEA officials
overwhelmingly charge employees under the most general offense
category in their guide, Conduct Unbecoming a DEA Employee. Since the
only penalty listed under the Sexual Harassment offense category is
removal, it is understandable why officials may be reluctant to lose all
flexibility in addressing situations where the circumstances and any
mitigating factors may vary significantly.
DEA might consider amending the penalties for this offense
category to provide somewhat greater flexibility along the lines of the
identical category in the USMS offense table, though that has not
resulted in greater use of the category as discussed below. Moreover, the
offense category Unprofessional or Inappropriate Conduct of a Sexual
Nature has a range of penalties from letter of reprimand to removal, and
we believe that this offense category could be properly charged in a
variety of situations where the alleged conduct was sexual in nature.
In addition, we found that DEA officials have unofficially created
the Poor Judgment offense category, which is not included in the offense
table. The use of an offense category not listed in the table is of
particular concern because there is no explanation for when it may be
applied or what range of penalties may be imposed. By disregarding the
DEA Guide and using this offense category, proposing and deciding
officials are provided more discretion than what the offense table already
provides. The only limit to this discretion is the requirement that
proposing and deciding officials must consult prior cases when rendering
disciplinary decisions.
When DEA officials use general offense categories to make
disciplinary decisions, DEA employees may not know what types of
conduct are prohibited and may not have adequate notice of the range of
45

penalties that could be imposed. There is also a risk that inconsistent

penalties could be imposed for similar misconduct.
Further, it may be difficult for DEA to easily determine the
frequency of this type of misconduct or any trends in the types of
allegations reported. In fact, when we initially requested case
information regarding misconduct allegations of this type for our review,
DEA officials repeatedly told us how difficult it would be for them to
determine the number of allegations that occurred during our study
period. These DEA officials cited DEA investigators and adjudicators
use of general offense categories as one of the reasons that the OIGs
request presented challenges.
FBI
The FBI Offense Table and Penalty Guidelines (the Guidelines)
outline a range of penalties applicable to various types of employee
misconduct. Of the law enforcement components, the FBI offense table
has the greatest number of offense categories that could apply to sexual
harassment and sexual misconduct. The Guidelines divide offenses into
five sections, with five general and six specific offense categories designed
to address this form of misconduct. 52 The general offense categories
include Disruptive Behavior, Other Felonies, Other Misdemeanors, and
Unprofessional Conduct On and Off Duty. See Appendix 3 for more
detailed information about these offense categories.
The specific offense categories contained in the table include
Asset/CW/Informant/CHS (Source) Improper Personal Relationship,
Indecent/Lascivious Acts, Improper Relationship Superior/Subordinate,
Improper Relationship with a Criminal Element, and Sexual Harassment
and Sexual Misconduct Consensual.
Although we found that the FBI offense table has six specific
offense categories that could adequately address sexual misconduct and
sexual harassment, we also found that in some cases general offense
categories were used. We describe the FBIs use of the offense categories
below:
In 41 of the 102 (40 percent) adjudicated sexual misconduct
and sexual harassment cases, FBI officials charged employees
under the Unprofessional Conduct Off Duty and Unprofessional
Conduct On Duty offense categories. In 14 of the 41 cases, the

The FBI Offense Table and Penalty Guidelines is divided into five sections
including: (1) investigative misconduct, (2) integrity/ethical misconduct, (3) property
related misconduct, (4) illegal/criminal conduct, and (5) general misconduct.
52

46

FBI offense table contained specific offense categories that we

believe more specifically reflected the conduct committed.
In 4 of the 16 of the adjudicated cases involving alleged sexual
harassment, inappropriate touching and/or groping, the
subjects were charged under the unprofessional conduct
offense categories rather than Sexual Harassment or Sexual
Misconduct Non-Consensual offense categories.
Despite having a clear offense category in the FBI offense table
designed to address inappropriate personal relationships with
confidential sources, witnesses, and informants, FBI officials
charged 2 of the 5 subjects who committed this offense under
the unprofessional conduct offense categories. In 6 of the 11
adjudicated cases involving the solicitation of prostitutes, the
subjects were charged under the unprofessional conduct
offense categories rather than under the Indecent/Lascivious
Acts offense category.
In one of the six cases, where the subject was charged with
Unprofessional Conduct Off Duty rather than Indecent/Lascivious Acts,
we found this decision particularly troubling given that the subject, a
former Assistant Section Chief responsible for training agents and others
abroad on child exploitation and human trafficking issues, had engaged
in multiple consensual and commercial sexual encounters over a 7-year
period with foreign nationals, including prostitutes, strippers, students
in his classes, and members of foreign law enforcement. In addition,
false and misleading reports the subject made after his conduct was
discovered would have warranted charging him under the Lack of Candor
and False/Misleading Information Employment/Security Document.
Despite this troubling case, we found that of the four law
enforcement components, the FBIs offense table can serve as a model for
the other components in that it clearly addresses allegations of sexual
misconduct and sexual harassment. According to the FBI offense table,
the Unprofessional Conduct offense categories were fashioned to aid
deciding officials in rendering decisions when there was no other specific
offense category adequate to address the misconduct committed.
However, when FBI or other officials disregard the specific offense
categories in the offense table, the only check on their discretion is the
requirement that proposing and deciding officials consult case precedent
when making disciplinary decisions. Therefore, charging employees
under general offense categories could result in the imposition of
inconsistent penalties. Further, when charging officials disregard the
offense table in this manner, FBI employees may not have full notice
47

regarding the types of conduct that are prohibited and the range of
penalties that could be imposed.
In addition, charging employees under general offense categories
may prevent the FBI from being able to determine the overall number of
reported sexual misconduct and sexual harassment cases. When we
initially requested case information on misconduct allegations of this
type, FBI officials repeatedly explained how difficult it would be to
determine the number of allegations that occurred during the study
period. The FBI officials cited the adjudicators use of general offense
categories as one of the reasons why the OIGs request presented
challenges.
USMS
The USMS Guidance Table of Disciplinary Offenses and Penalties
(the Guide) is divided into 11 sections and is virtually identical to the
DEA Guide for Disciplinary Offenses and Penalties. 53
Similar to the DEA Guide, there are eight offense categories that
could be used to address allegations of sexual misconduct. Three of the
eight categories are specifically designed to address it. The Guide
describes the offense category Unprofessional or Inappropriate Conduct of
a Sexual Nature as teasing, jokes, actions, gestures, display of materials
or remarks of a sexual nature. The penalty for this offense ranges from
reprimand to removal.
The Guide cites Title VII of the Civil Rights Act of 1964 when
defining the sexual harassment offense category, and it contains another
offense category, Retaliation against an Employee Resulting from or in
Connection with an Allegation of Sexual Harassment. Unlike the DEA
Guide, the penalty for sexual harassment at USMS ranges from a 5-day
suspension to removal. The penalty for retaliation resulting from an
allegation of sexual harassment ranges from reprimand to removal.
We determined that the Guide also contains other offense
categories that do not specifically address sexual misconduct, but may,
under certain circumstances, be considered sexual misconduct,
including Improper Association with a Convicted Felon or Witness
Protection Program Participant, Confidential Source and/or Persons
Connected with Criminal Activity, Conduct Unbecoming a USMS Employee,
The Guide has 11 sections: (1) attendance issues, (2) fiscal issues, (3) false
statements or incorrect official documents, (4) harassment/discrimination, (5) law
enforcement specific offenses, (6) failure to follow, (7) negligent work, (8) health and
safety issues, (9) security issues, (10) supervisory misconduct, and (11) conduct
prejudicial to USMS and the Department.
53

48

Criminal, Dishonest and Notoriously Disgraceful Conduct, Disrespectful or

Unprofessional Conduct, and Off-duty Misconduct. We noted that the
USMS Guide does not specifically define Criminal, Dishonest and
Notoriously Disgraceful Conduct, Conduct Unbecoming a USMS employee,
and Off-duty Misconduct in the table.
We found that even though two USMS offense categories are
specifically designed to address allegations of sexual misconduct and
sexual harassment, no USMS employees with substantiated allegations
were charged under either of them. Instead, in 21 of 32 (66 percent)
adjudicated cases, the USMS officials charged employees under the
general offense categories. Where the subject committed multiple
offenses, they were charged under additional offense categories based on
the facts of the case. We discuss USMSs use of the offense categories
below:
In the only two adjudicated cases where the alleged misconduct
appeared to involve allegations of sexual harassment, none of
the subjects were charged under that offense category. Instead,
they were charged with Conduct Unbecoming a USMS employee
exclusively or Conduct Unbecoming and other offense categories
based on the facts of the case.
In interviews, USMS deciding officials told us that in the prior
cases they review before making decisions, adjudicators had charged
general offense categories. The officials told us that they had followed
the decisions of their predecessors.
In three of the six adjudicated cases where the alleged
misconduct involved the transmission of sexually explicit email, text messages, and images, the subjects were charged
with Conduct Unbecoming rather than Misuse of Internet and/or
Unauthorized Use of Federal Telecommunication System,
Commercial Long Distance.
In five of the seven adjudicated cases where the alleged
misconduct involved inappropriate relationships, the subjects
were charged with Conduct Unbecoming, Violation of the Rules of
Professional Responsibility, and Displaying Poor Judgment
rather than Unprofessional or Inappropriate Conduct of a Sexual
Nature. Similarly to DEA, Displaying Poor Judgment is not an
offense category in the USMS offense table.
In all seven of the adjudicated cases where the alleged
misconduct involved the subjects making inappropriate
comments or gestures of a sexual nature, the subjects were
49

charged with Conduct Unbecoming and Disrespectful Conduct

rather than Unprofessional or Inappropriate Conduct of a Sexual
Nature. In one of these cases, no charge was specified in the
letter of reprimand issued.
In two of the six adjudicated cases that involved a USMS
employee having an inappropriate relationship with a criminal
element, the subjects were charged with Conduct Unbecoming,
Displaying Poor Judgment, or they were charged under both
offense categories. As previously noted, Displaying Poor
Judgment is not an offense category in the USMS offense table.
One of the subjects was also charged under other specific
offense categories based on the facts of the case.
In two cases, the subjects were charged with Conduct
Unbecoming rather than Unprofessional or Inappropriate
Conduct of a Sexual Nature or Misuse of Government Property.
In one case, one DUSM and a courtroom clerk had sexual
relations after hours in a courtroom, while in the other case the
subject had sexual relations in USMS office space.
By contrast, we found that in 11 of the 32 adjudicated cases
involving the transmission of sexually explicit e-mail, text messages, and
images; misuse of a government vehicle; improper associations with
criminal elements; and inappropriate relationships, the subjects were
charged under the more specific offense categories.
We believe that charging USMS employees under general offense
categories may result in USMS employees not having full notice as to
what types of conduct are prohibited and the range of penalties that
could be imposed. Further, the use of general offense categories by
deciding officials may result in the imposition of inconsistent penalties
and may prevent the USMS from being able to determine the overall
number of sexual misconduct and sexual harassment cases.
We also found that USMS officials created the Displaying Poor
Judgment offense category, a category that is not included in the offense
table. By disregarding the USMS Guide and using this offense category,
proposing and deciding officials have more discretion than what is
provided in the offense table.
In the final chapter, we will discuss other issues we identified
during our review of sexual misconduct and sexual harassment
allegations.

50

CHAPTER 5: DETECTING AND RETAINING SEXUALLY EXPLICIT

TEXT MESSAGE EVIDENCE
According to a 2013 research study conducted by the Pew
Research Centers Internet and American Life Project, 91 percent of
American adults own cell phones and more than three-quarters of them
(81 percent) send and receive text messages. 54 Therefore, it is no
surprise law enforcement employees with government-issued mobile
devices use this convenient and useful technology in their day-to-day
business communications. However, some employees abuse this
privilege and send sexually explicit text messages, images, and e-mails
on their government-issued devices and computers. We found that all
the components have weaknesses in detecting and tracking the
transmission of sexually explicit text messages, also known as sexting.
We also found that ATF, the DEA, and the USMS have weaknesses in
detecting and tracking the transmission of sexually explicit images.
Therefore, we were unable to determine the actual number of instances
involving this type of misconduct. Despite not being able to determine
the actual number, we found that sexting was the second most
commonly alleged offense in the cases we examined. 55
We found that the FBI and USMS archive text messages sent and
received by employees on their government-issued devices, so that they
are available for investigators and as evidence in subsequent legal
proceedings. However, the FBI is hampered in its ability to archive all
text messages sent and received by its employees due to technological
limitations. The FBI proactively monitors the text messages its
employees receive but relies on third parties to provide text message
data. Further, the FBI has disabled the ability to send images on
employee BlackBerry devices. By contrast, the USMS does not
proactively monitor text messages sent by its employees, despite its
ability to do so, and cannot detect the transmission of sexually explicit
photographs or images.
We found that ATF and DEA are unable to archive the text
messages of their employees and are generally unable to detect this form
of misconduct. Further, misconduct investigators at ATF, the DEA, and
the USMS cannot easily obtain text messages that may be important
evidence in their investigations. In some instances, these components
relied on the employees involved in the investigations to provide this
Maeve Duggan, Pew Research Centers Internet and American Life Project,
Cell Phone Activities 2013, September 16, 2013.
54

See Appendix 4 for additional information about this category of sexual

misconduct.
55

51

evidence. This is problematic because the employees providing the

evidence may adulterate it or not provide complete evidence to the
investigators. There is also a risk these components may be hampered in
their ability to fulfill their discovery obligations.
Discovery Obligations and Text Message Evidence
The Department policies related to the disclosure of exculpatory
and impeachment evidence, Disclosure of Exculpatory and Impeachment
Information (Brady Policy), and Potential Impeachment Information
Concerning Law Enforcement Witnesses (Giglio Policy), are set forth in the
United States Attorneys Manual (USAM) at Sections 9-5.001 and 9
5.100, respectively. 56 A March 2011 memo from the Deputy Attorney
General directed the leadership of the Department law enforcement
components and the litigating divisions to ensure that all prosecution
and law enforcement personnel participating as members of a
prosecution team preserve e-communications, defined to include emails, text messages, SMS (short message), instant messages (IM), voice
mail, pin-to-pin communications [Personal Identification Number (PIN)],
social networking sites, bulletin boards, blogs, and similar means of
electronic communication, as these e-communications may be
discoverable prior to trial. 57
The guidance instructs members of the prosecution team to think
about the content of any e-communication before sending it, ensure
appropriate language is used, and determine in advance how to preserve
potentially discoverable information. In addition, the guidance also
recognized the unique challenges the components may face when
attempting to produce (text, SMS, IM, PIN) evidence. The guidance
instructs the components to provide guidance to employees on how to
preserve this type of evidence and directs the components to document
any inability to do so that it can be explained in court.

See generally Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972).
56

See generally Memo to the Associate Attorney General and the Assistant
Attorneys General for the Criminal Division, National Security Division, Civil Rights
Division, Antitrust Division, Environment and Natural Resources Division, the Tax
Division, the Directors of FBI, DEA, USMS, ATF, and the BOP, and all United States
Attorneys from Deputy Attorney General, James M. Cole, Guidance on the Use,
Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases,
March 30, 2011. The prosecution team for this purpose includes federal, state, and
local law enforcement officers and other government officials participating in the
investigation and prosecution of the criminal case against the defendant. USAM 9
5.001.
57

52

In relation to e-communications, there are a variety of

circumstances in which such communications may constitute or contain
discoverable material under these standards. 58 For example, ecommunications may indicate a possible relationship, intimate or
otherwise, between a member of the prosecution team and a victim,
cooperating witness, informant, or other source of information that may
serve as bias or improper motive evidence or otherwise be a subject for
impeachment of the government witness. 59
Law Enforcement Witnesses and Brady/Giglio Issues
Although Agency Officials at some of the components review e-mail
messages for possible Brady/Giglio issues, Agency Officials at ATF and
the DEA told us that they do not review text messages for these issues
because they lack the technology to archive such material. Instead, they
said they rely on the law enforcement witnesses at these components to
provide prosecutors with what they deem to be relevant text messages. 60
By allowing law enforcement witnesses to independently determine what
text message evidence is subject to discovery under Brady or Giglio,
without further oversight or review, there is a risk that witnesses may
not provide all relevant text messages or may adulterate the text
messages before providing them. In addition, under the Departments
Giglio Policy, Agency Officials should consult with prosecutors assigned
to the cases to determine whether case law or court rulings in the district
require broader disclosures to ensure that all potentially discoverable
material is disclosed.
The Deputy Attorney Generals March 2011 memo warned the
components that the preservation of certain messaging formats including
text, SMS, instant, and PIN presented unique challenges and posed risks
for the Departments cases if these messaging formats were not
Although our primary discussion centers on Brady/Giglio obligations, this
issue may also arise in discovery during civil cases. For example, if someone sues for
sexual harassment, the component might be obligated to produce text message
evidence during discovery.
58

See generally United States v. W.R. Grace, 401 F. Supp. 2d 1069 (D. Mont.,
2005), where the governments main cooperating witness exchanged roughly 200 emails with the lead case agent over a 4-year period leading up to trial. The defense did
not learn about these e-mails until partway through the cooperating witnesss cross
examination. The court determined the e-mails showed significant bias in the form of
the cooperators extensive relationship with the government agents and animus toward
the defendant, and instructed the jury to that effect.
59

It is ATF and DEA policy that all substantive case-related text messages be
preserved and potentially be made available during discovery.
60

53

preserved. In an interview with an Office of the Deputy Attorney General

(ODAG) official, we learned that these challenges have confronted the law
enforcement components for several years and are yet to be fully
resolved.
For years, federal judges have required companies to implement
costly litigation holds covering offices worldwide to preserve potentially
discoverable text messages in civil and criminal cases. 61 After
unfavorable court rulings, ODAG officials recognized the importance of
this issue and constituted a working group to address it. According to
ODAG officials we interviewed, the working group included
representatives from ATF, the DEA, and the FBI. 62 During discussions
over the last 3 years, ODAG officials said they cautioned the components
about the risks associated with not establishing a system for archiving
text messages in the same manner e-mail messages are archived on their
backup servers.
At the working group meetings, both ATF and DEA told ODAG
officials that they are unable to archive the text messages of their
employees because the operating systems they currently use would need
to be completely restructured to preserve text messages. Our interviews
with ATF and DEA also confirmed this.
FBI officials told ODAG it is now able to archive all text messages
sent and received by its employees. FBI officials provided the OIG with
an explanation regarding the technological limitations associated with
archiving all text messages sent and received by its employees.

A litigation hold (also known as preservation orders or hold orders) is a

stipulation requiring a company to preserve all data that may relate to a legal action.
61

The USMS was not a part of the working group. ODAG personnel stated that
its absence from this meeting was an oversight.
62

54

Retention of Text Messages FBI

An FBI Enterprise Security Operations Center (ESOC) official told
the OIG that the FBI archives and proactively monitors the text messages
of employees through the use of a proprietary database developed
internally. Further, the FBI has disabled the ability to send images via
employee BlackBerry devices.
According to FBI officials responsible New Jersey Court Questions FBIs
Text Message Preservation
for managing this effort, the ESOC
Capabilities
collects copies of BlackBerry
diagnostic logs sent from Research
In United States v. Suarez, 2010 WL
4226524 (D.N.J. October 21, 2010), a
in Motion (RIM), the company that
key cooperating witness who assisted
63
makes BlackBerry devices. The
the government in its investigation of
FBI preserves the diagnostic logs on
public corruption in New Jersey from
the Criminal Justice Information
2008 through 2009 participated in
Services (CJIS) servers for a period of multiple recorded meetings with
90 days. ESOC personnel told us
targets of the investigation, during
which the cooperator exchanged
they then store all the diagnostic
numerous text messages with three
logs they receive from RIM in a
FBI agents. The exchange of text
separate database at FBI
messages could be seen on video
headquarters for a period of 25
recordings and was visible to the
years. ESOC personnel can filter
defense when viewed. In response to
a defense request, the FBI attempted
the data from these diagnostic logs
to obtain the text messages but could
based on a telephone number, a
not provide them all because they
date, or the name of the recipient of
were erased in accordance with the
the text message. The ESOC official
FBI CJIS 90-day retention policy for
said that keyword word searches are
storing BlackBerry diagnostic logs on
possible but can be more
their servers.
challenging.
ESOC officials also told us
that generally the data obtained
from these diagnostic logs is useful,
but complained that data is often
missing from the logs. According to
the ESOC, there are several reasons
for this. First, the diagnostic logs
help debug functions and
troubleshoot issues but do not
comprise a complete audit history of
text message content sent and

Although the court found FBI had

not acted in bad faith, it issued an
adverse inference instruction
allowing the jury to infer that the
governments failure to preserve the
text messages made this evidence
relevant and favorable to the
defendants. The jury acquitted the
defendant whose defense counsel
focused on the missing text
messages, but convicted the other
defendant, although a variety of
factors may have contributed to this
result.

The FBI informed us that they are transitioning to Android phones. This
switch may help address some of the issues with the FBIs current capabilities
discussed below.
63

55

received and there is no requirement for their accuracy or completeness.

In addition, we were told that the data contained in diagnostic logs is
sometimes corrupted, resulting in the data being inaccessible. Further,
ESOC officials told us they can only archive what they receive. If the FBI
is not provided all data contained in the diagnostic logs, or if the data is
corrupted, the FBI will not receive all the text messages sent and received
by their employees.
Brady/Giglio Issues FBI
These issues of lost data were brought to bear in United States v.
Suarez, discussed in the text box. In that case, the FBI was asked for
the first time to produce text message exchanges between a key
cooperating witness and three FBI agents. The court found that the CJIS
90-day retention policy for storing BlackBerry diagnostic logs was the
reason for the FBIs failure to produce the text messages.
ESOC officials told us that they were unable to produce the text
message exchanges in the Suarez case because the FBI does not have
control over the entire process of transmitting text message data sent on
government issued devices. In fact, we learned that a large part of this
process, for all the law enforcement components, is dependent on
external phone and data networks. Before text message data is logged on
CJIS servers, the data travels through cellular networks and the RIM
network for BlackBerry devices. RIM will then forward text message data
to CJIS, but we were told that in some cases the data may not arrive if
there are encryption key issues or glitches in the external phone and
data networks. 64 These weaknesses may continue to impact the FBIs
ability to fulfill their discovery obligations.
Retention of Text Messages USMS
We found that the USMS uses a process similar to the FBI process
for archiving text messages. The USMS uses BlackBerry diagnostic logs
to archive text messages, but it cannot detect the transmission of
sexually explicit photographs or images.
However, there are two important differences. The USMS archives
the text messages of its employees indefinitely. In addition, the USMS
does not proactively monitor the transmission of sexually explicit text
messages, even though we were told by the USMS that it has the ability
to do so. Since USMS cannot detect sexually explicit photographs or
images, we were unable to determine the actual number of sexting
instances occurring at USMS during the study period.
64

An encryption key is a sequence of numbers used to encrypt or decrypt data.

56

In interviews, USMS OPR-IA officials told us they have requested

text messages for their investigations but could not easily obtain the
evidence they need because it could not be filtered. The Inspectors said
they would receive an entire days text messages for all USMS employees
and would have to sift through the records to determine what text
messages related to their misconduct investigations. However, a USMS
information technology Program Manager told us they can filter text
messages and provided the OIG a detailed explanation on how this
occurs. When we asked why they do not provide OPR-IA misconduct
investigators with filtered text messages, the Program Manager stated
that they do so on occasion, but generally misconduct investigators sort
through the text messages themselves as some investigators are not
aware of the filtering capability.
Since USMS can archive and filter the text messages sent and
received by their employees, we find it troubling that its misconduct
investigators are not fully aware of the filtering capability to identify
specific text messages. OPR-IA officials commented to us that employees
tend to speak freely via text message. One OPR-IA official stated, If we
were able to filter text message evidence for these [sexual misconduct]
and all misconduct investigations, it would be of great benefit.
Brady/Giglio Issues USMS
Even though USMS has the technology, USMS law enforcement
witnesses are solely responsible for providing text messages that are
potentially discoverable. By allowing USMS witnesses to independently
make these determinations without further oversight or review, there is a
risk these witnesses may not provide all relevant text messages or may
adulterate the text messages before providing them. Further, since the
USMS has the ability to archive the text messages of their employees,
prosecutors should be given access upon request to the archived text
messages especially in instances where suspected Brady or Giglio issues
arise.
Retention of Text Messages ATF
We were unable to determine the actual number of sexting cases
occurring at ATF during the study period because ATF does not archive
text messages sent and received by its employees. This means that
potentially relevant information is not available for investigators
conducting misconduct investigations.
In interviews with ATF officials, we learned ATF investigators often
rely on text message evidence in misconduct investigations, particularly
investigations where the conduct committed is sexual in nature or
involved an alleged inappropriate relationship. However, investigators
57

must request the evidence from the employees or retrieve their

government-issued devices. We also learned that ATF does not
proactively monitor the text messages of its employees. This inevitably
hampers its ability to detect and deter misconduct by its employees,
including sexual misconduct, on an ongoing basis.
ATF investigators told us that in most cases they must rely on the
honesty of employees to provide all the relevant text messages sent and
received. There are a number of risks to be considered when relying on
such information, including that the employee supplying the information
may not provide all the relevant material. In addition, the employee may
adulterate the evidence by adding or removing language contained in the
text message. The employee may also delete any incriminating text
messages altogether before they can be retrieved through forensic
imaging. We were told that once a text message is deleted in this manner
it is nearly impossible to recapture it without obtaining a forensic image
of the government-issued device, serving an administrative subpoena on
the cellular network carrier, or obtaining a court order. 65
Brady/Giglio Issues ATF
Further, we were told that ATF law enforcement witnesses are
solely responsible for providing text messages to prosecutors to satisfy
discovery obligations under Brady and Giglio. By allowing ATF witnesses
to independently make these determinations without further oversight or
review, there is a risk that these witnesses may not provide all relevant
text messages or may adulterate the text messages before providing
them. Because there is no archive, prosecutors cannot independently
obtain access to the text messages to address potential issues.
Retention of Text Messages DEA
We found that, like ATF, DEA does not archive text messages sent
and received by its employees. This similarly means that potentially
relevant information may not be available for investigators conducting
misconduct investigations and that DEA may be hampered in its ability
to satisfy its discovery obligations. The ODAG also informed us that the
DEAs current policy regarding the preservation of electronic
communications for discovery purposes is not entirely consistent with
the Deputy Attorney Generals March 30, 2011, memo entitled Guidance
on the Use, Preservation, and Disclosure of Electronic Communications in
A forensic image is a forensically sound and complete copy of a hard drive or
other digital media, generally intended for use as evidence. In addition, we were told
that network carriers typically preserve the content contained in text messages for only
3 to 5 days, absent a Court order or other requirement for a longer preservation period.
65

58

Federal Criminal Cases, insofar as DEA does not require that all e-mail or
text messages with outside witnesses be preserved. 66
In interviews with DEA officials, we learned that the DEA would
have to retrieve an employees government-issued device in order to
obtain text messages in connection with a misconduct investigation. And
we were told that, if the employee deleted any text messages prior to the
phones retrieval, the DEA would be unable to recover them. DEA
officials stated that the only other option available would be to issue an
administrative subpoena or obtain a court order to receive the text
message data directly from the cellular network carrier. The DEA
officials we spoke with said they could not recall this ever occurring and,
as discussed above, the information might well no longer be retained by
the time such legal process was sought and obtained. 67
We also learned that the DEA does not proactively monitor the text
messages of its employees. As with the other components that do not do
this, we believe that the DEA inevitably is hampered in its ability to
detect and deter misconduct by its employees, including sexual
misconduct, on an ongoing basis.
E-mail Preservation Issues Abroad DEA
In interviews, we learned that the DEA experiences similar
limitations when attempting to retrieve deleted e-mail messages from the
833 DEA employees stationed in foreign countries as of July 2013. 68
According to DEA officials, the DEA does not archive e-mails sent and
received by employees stationed in foreign countries because the e-mails
We were notified that the ODAG is currently working with the DEA to ensure
consistent policies.
66

During the OIG investigation involving allegations that DEA agents facilitated
a sexual encounter for a supervisory Secret Service agent in Cartagena, Colombia, the
DEA and the OIG had difficulties in retrieving text-message evidence from the DEA
agents BlackBerry devices because two of the agents deleted data from them prior to
providing the devices to the OIG. DEA officials told us that forensic imaging proved
impossible for one of the agents who had entirely wiped his device. Nevertheless, the
investigation ultimately resulted in the DEA agents being charged with obstruction of
an official investigation, among other charges. The DEA subsequently revoked the
agents eligibility for access to National Security Information (NSI). As of January 9,
2015, DEAs Chief Counsel Office stated that one of the DEA agents had appealed to the
U.S. Court of Appeals for the Federal Circuit challenging his indefinite suspension
without pay based upon the revocation of his security clearance.
67

See DOJ OIG, Review of Policies and Training Governing Off-Duty Conduct by
Department Employees Working in Foreign Countries, Report 15-2, January 2015.
68

59

do not go through DEA servers. 69 Officials in the DEA Office of Security

Programs told us that a forensic image of the computer must be taken in
order to retrieve deleted e-mails created on a DEA computer in use
overseas.
Brady/Giglio Issues DEA
Among the four law enforcement components, the DEA has the
largest number of employees stationed overseas. We were told that many
criminal prosecutions involving narcotics and prescription drug
trafficking originate in or involve DEA overseas offices, raising additional
concerns about whether these limits hamper the DEAs ability to satisfy
its discovery obligations in these cases. Because there is no archive,
even if the information is requested from the employees themselves, there
is a risk that an employee may not provide all relevant material, may
adulterate what is produced, or may simply delete the text and e-mail
messages altogether. In the final section of this report, we discuss our
conclusions and recommendations for improvement.

If an e-mail is sent to a domestically located DEA employee, it would be

archived as a received e-mail for that employee.
69

60

CONCLUSION AND RECOMMENDATIONS

Overall, we found there were relatively few reported allegations of

sexual harassment and sexual misconduct in the Departments law
enforcement components. However, while we had difficulties getting
timely and complete information from the FBI and the DEA, even based
on the information that we received our review of the handling of these
allegations revealed some significant systemic problems with the
disciplinary and security processes requiring corrective action across the
four law enforcement components.
We determined that all the components have policies requiring
some level of coordination between the offices responsible for ensuring
employees meet the requirements to hold security clearances and the
internal affairs offices who investigate misconduct allegations. At the
FBI, all misconduct allegations are referred to the Security Divisions
Analysis and Investigation Unit to determine whether the allegation
raises security concerns.
However, we found instances where ATF, DEA, and USMS
employees engaged in a pattern of high-risk sexual behavior, but security
personnel were not informed about these incidents until well after they
occurred, or were never informed. By failing to refer these allegations to
security personnel, the high-risk sexual behavior of these employees has
the potential to expose ATF, DEA, and USMS employees to coercion,
extortion, and blackmail and presents security risks for these
components.
We were particularly troubled by multiple allegations involving
several DEA special agents participating in sex parties with prostitutes
while working in an overseas office. The misconduct occurred for several
years while these special agents held Top Secret clearances. Many of
these agents were alleged to have engaged in this high-risk sexual
behavior while at their government-leased quarters, raising the
possibility that DEA equipment and information also may have been
compromised as a result of the agents conduct.
Second, although ATF and the USMS have clear policies requiring
supervisors to report to their headquarters internal affairs offices
misconduct allegations, including alleged sexual misconduct and sexual
harassment, we found instances in which supervisors failed to report
these allegations, even when the alleged misconduct had occurred in the
past.

61

At the DEA and the FBI, we found that policies on reporting

allegations of misconduct provides supervisors with discretion when
determining what to report and what to treat as a management or
performance-related issue. We found an instance where supervisors at
these components exercised that discretion even when their respective
offense tables characterized the conduct as something that should be
reported to headquarters.
Third, we determined that ATF, the DEA, and the FBI have criteria
for determining whether to open an investigation at headquarters or refer
it back to management in the field for handling. Although it appears that
ATF consistently followed its criteria, at the FBI we found instances
where it failed to open investigations at headquarters into allegations of
serious sexual misconduct and sexual harassment when called for by its
criteria. At the DEA, we found instances where the DEA OPR failed to
fully investigate allegations of serious sexual misconduct and sexual
harassment. The USMS has no criteria for making these determinations,
but we found that it appropriately handled allegations in all the cases we
examined.
Fourth, we determined that the DEA, FBI, and USMS offense
tables contain specific offense categories to address allegations of sexual
misconduct and sexual harassment and to provide guidance on the
appropriate range of penalties that could be imposed. However, we
found that these components often applied general offense categories to
misconduct that fell within the more specific offense categories contained
in their offense tables. In addition, we found that the ATF offense table
does not contain specific offense categories to address sexual misconduct
and sexual harassment.
While the FBI offense table contains specific language to address
the solicitation of prostitutes overseas even where the conduct is legal,
we found that ATF, the DEA, and the USMS offense tables do not contain
specific language to address this form of misconduct. As a result of
these issues, employees of the law enforcement components may not be
fully notified as to the types of conduct that are prohibited, may not have
adequate notice of the range of penalties that could be imposed, and
there is also a risk that inconsistent penalties could be imposed for
similar misconduct. Further, it may be difficult for the components to
easily determine the frequency of this type of misconduct or to identify
any trends in the types of allegations reported.
Fifth, we determined that all the law enforcement components do
not have adequate technology to archive text messages sent and received
by their employees and are unable to fully monitor the transmission of
sexually explicit text messages and images. Therefore, we could not
62

determine the actual number of instances involving the transmission of

sexually explicit text messages, images, and e-mails, also known as
sexting. These same limitations limit the ability of the components to
make this important information available to misconduct investigators
and may risk hampering the ability of the components to satisfy their
discovery obligations.
To correct the deficiencies discussed above, we make eight
recommendations to improve the law enforcement components
disciplinary and security processes. We recommend that the Department
and the law enforcement components develop consistent policies and
practices to ensure that sexual misconduct and sexual harassment
allegations are handled in an appropriate fashion and that information
regarding such allegations is referred to security personnel for
consideration in a timely manner. Specifically, we recommend:
1. All four law enforcement components should ensure that
supervisors and managers report all allegations of sexual
misconduct and sexual harassment to headquarters, and they
should consider ensuring compliance with this requirement by
including it in their performance standards so as to subject
supervisors and managers to possible discipline for failing to report
allegations.
2. ATF, DEA, and USMS should ensure that all non-frivolous sexual
harassment and sexual misconduct allegations are referred to their
respective security personnel to determine if the misconduct raises
concerns about the employees continued eligibility to hold a
security clearance, and to determine whether the misconduct
presents security risks for the component.
3. The components should have and follow clear and consistent
criteria for determining whether an allegation should be
investigated at headquarters or should be referred back to the
originating office to be handled as a management matter.
4. All four law enforcement components should use the offense
categories specifically designed to address sexual misconduct and
sexual harassment, and revise their tables if they are inadequate
or otherwise deter the use of such categories.
5. The Office of the Deputy Attorney General (ODAG) should ensure
that the Departments zero tolerance policy on sexual harassment
is enforced in the law enforcement components and that the
components tables of offenses and penalties are complimentary
and consistent with respect to sexual harassment.
63

6. The Office of the Deputy Attorney General (ODAG) should develop

policy explicitly prohibiting the solicitation of prostitutes in a
foreign jurisdiction even if the conduct is legal or tolerated, and
ensure that all component offense tables include language
prohibiting this form of misconduct.
7. All four law enforcement components, in coordination with ODAG,
should acquire and implement technology and establish
procedures to effectively preserve text messages and images for a
reasonable period of time, and components should make this
information available to misconduct investigators and, as
appropriate, for discovery purposes.
8. All four law enforcement components, in coordination with ODAG,
should take concrete steps to acquire and implement technology to
be able to, as appropriate in the circumstances, proactively
monitor text message and image data for potential misconduct.

64

APPENDIX 1: METHODOLOGY

For this review, the OIG interviewed 72 officials at ATF, the DEA,
the FBI, the USMS, the Office of the Deputy Attorney General, and the
OIGs Investigations Division. We conducted a series of analyses to
evaluate the nature and frequency of sexual harassment and sexual
misconduct affecting the workplace and the security of operations. We
evaluated the reporting, investigation, and adjudication phases. We
considered whether supervisors failed to report allegations of sexual
harassment and sexual misconduct. We also considered whether
misconduct investigators opened investigations regarding the appropriate
subjects and whether they focused on all the issues contained in the
allegation. Further, we evaluated whether the law enforcement
components offense tables are adequate to address sexual misconduct
and sexual harassment allegations.
Data Collection
OIG requested case files and data points from each of the
Departments four law enforcement components regarding all misconduct
allegations arising during the period FY 2009 through and including
FY 2012 (October 1, 2008, to September 30, 2012). 70 We included in this
report misconduct allegations that were still open as of April 23, 2013,
and updated the information during the course of our review. 71
ATF
Prior to our formal initiation of this review, ATF provided us with
data points for all of their misconduct cases and allowed the OIG to
determine which cases fell within the scope of our review. We identified
94 allegations of a sexual nature and requested these case files. Upon
reviewing the case files, we determined that 47 of the allegations were
within the scope of our review. ATF provided unfettered access to this
information and worked with the OIG to correct errors or fill in any
missing data points.
Component case files may contain multiple allegations against multiple
subjects. For purposes of this review, we generally count each case file as a separate
case and each subject of an investigation as a separate allegation. However, during
adjudication, an adjudicative case file contains only information relating to an
individual subject. Therefore, when discussing the adjudicative process, we refer to
each subject as a case.
70

Any open allegations of sexual misconduct or sexual harassment discussed

in this report were monitored or investigated by the OIG.
71

65

USMS
The USMS also produced to us the information we requested prior
to the formal initiation of this review. We reviewed 2,248 USMS
misconduct allegations arising during the study period that were
contained in a spreadsheet provided by the USMS. We determined that
98 potential allegations related to our review. After a more thorough
review of the case files, we determined that 81 misconduct allegations
were within the scope of our review. The USMS provided unfettered
access to the case information and worked with the OIG to correct errors
or fill in any missing data points.
FBI
Unlike ATF and the USMS, the FBI was initially unwilling to
provide un-redacted information that we requested in April 2013 related
to sexual misconduct and sexual harassment allegations arising during
the study period. We elevated these issues for discussion and resolution
with the respective component senior management. At the conclusion of
the initial discussions, the FBI agreed to run a list of search terms the
OIG developed to determine the allegations that related to sexual
misconduct and sexual harassment.
In consultation with the OIG, the FBI developed a shorter list of
terms that focused on seven offense categories relating to sexual
misconduct and sexual harassment. Even after the OIG formally
initiated this review in July 2013, the FBI provided substantially
redacted information regarding 242 sexual misconduct and sexual
harassment cases, as well as the data points related those cases. The
FBI claimed that it could not provide the information to the OIG due to
limitations in the Privacy Act and because the information contained
Personally Identifiable Information (PII). 72 The OIG objected, advising the
FBI that we were entitled to access the materials pursuant to Section 6 of
the Inspector General Act. As we further informed the FBI, the
prohibitions in the Privacy Act do not apply to the dissemination of
materials by the Department to the OIG and the OIG handles all
information that it receives consistent with the requirements in the
Privacy Act. Additionally, the OIG regularly reviews PII in connection
with its oversight responsibilities and, in this instance, our Investigations
See generally, Privacy Act of 1974, Pub. L. 93579, 88 Stat. 1896, 5 U.S.C.
552a, which governs the collection, maintenance, use, and dissemination of personally
identifiable information about individuals that is maintained in systems of records by
federal agencies, and the Inspector General Act of 1978, 6(a)(1) (authorizing OIGs to
have access to all records, reports, documents, papers, or other material available
to the [agency] which relate to programs and operations with respect to which that
Inspector General has responsibilities under this Act).
72

66

Division should have previously received these reports from the FBI at
the time of the alleged event, pursuant to Department regulations
requiring that Department components report non-frivolous allegations
of misconduct to the OIG. We did not receive the un-redacted
information we requested from the FBI until August 2013, some
4 months after our initial request.
We had the OIG Investigations Division search its case
management system using our full list of search terms to try to help
ensure that we had received all the cases within the scope of our review.
Through this search, we identified a material number of additional
allegations of sexual misconduct or sexual harassment that were not
originally provided to us by the FBI. The discrepancy was greater than
we could explain in light of the longer list of search terms used internally
and the different databases searched.
Once we identified the discrepancies, we requested the information
from the FBI. The FBI provided it to the OIG without substantial
redactions and thereafter worked with the OIG to correct errors or fill in
any missing data points. A further review of the information the FBI
provided for these additional cases found that a material number of the
cases contained the agreed upon search criteria. We were unable to
determine why a material number of in scope cases were excluded from
the FBIs production. The failure to provide case file information in a
timely fashion unnecessarily delayed our work.
DEA
In April 2013, prior to our formal initiation of this review, we
requested information related to sexual misconduct and sexual
harassment allegations arising during the study period. Similarly to the
FBI, the DEA initially was unwilling to provide the OIG with any of the
information that we requested. Even after the OIG formally initiated this
review in July 2013, the DEA provided only substantially redacted
information regarding 67 sexual misconduct and sexual harassment
cases, as well as the data points related to those cases. As with the FBI,
the DEA cited the Privacy Act and concerns for the individuals involved
as the basis for not providing the information. We provided a lengthy list
of sexual misconduct-related search terms to the DEA and requested
that it use the terms to search its database for sexual misconduct cases.
We did not receive un-redacted information in response to this request
until September 2013, some 5 months after our initial request and only
after we informed the DEA that the FBI had produced similar material to
us in August 2013. Further, after a working draft of our report was
issued to the components, the DEA informed us that it did not run our
full list of search terms but instead ran only three search terms in
conjunction with a search by offense code.
67

As with the FBI, we had the OIG Investigations Division search its
case management system to ensure the information finally produced to
us by the DEA was complete and responsive to our request. We
identified a material number of additional allegations of sexual
misconduct or sexual harassment that were not originally provided to us
by the DEA. We requested this information from the DEA and it was
provided to us, although the DEA continued to redact some of the
information.
Based upon our analysis of the DEAs search process, we
determined that a significant number of cases were within the scope of
our review and met even the DEA-selected search criteria but were not
provided to the OIG during their initial un-redacted production.
Moreover, even after DEA agreed to provide the additional case files, it
continued to redact some of the information. The failure to provide case
file information in a timely fashion unnecessarily delayed our work.
Cleaning and Normalizing the Misconduct Data
Charges applied to misconduct allegations are general and may not
adequately describe the conduct to allow for comparisons, for example,
Conduct Unbecoming a Federal Employee. After identifying the
allegations relating to sexual misconduct and sexual harassment, we
standardized the offense categories and created a data field containing
standardized offense categories or types. This allowed us to better
characterize the misconduct and to make comparisons across the law
enforcement components and among demographic categories, such as
position, race, and grade level.
In addition, we created data fields to better categorize the
allegations, such as identifying the allegations in which an allegation was
not substantiated, the law enforcement component chose not to
discipline an employee, or the outcome was not clear based on
documentation in the case file. We then completed descriptive statistical
analysis of the misconduct case data.
Analysis of Referrals
To determine whether matters were reported to the OIG, we
reviewed each components initial complaint for a notation that the
allegation was referred. We identified only two allegations where this
notation was not present but confirmed the allegations were in fact
referred with the OIG Investigations Division.
Interviews
We interviewed 72 officials at ATF, the DEA, the FBI, the USMS,
the Office of the Deputy Attorney General, and the OIGs Investigations
68

Division who were involved in the reporting, investigation, and

adjudication phases of the disciplinary process. We also interviewed
misconduct investigators and proposing/deciding officials regarding
specific sexual harassment and sexual misconduct allegations. In
addition, we interviewed information technology professionals at the
respective components who are responsible for archiving employee emails and text messages. Further, we interviewed representatives from
each components Office of General Counsel regarding discovery issues.
When necessary, we conducted additional interviews to resolve any
follow-up questions and confirm our findings.
We also were concerned by an apparent decision by DEA to
withhold information regarding a particular open case. The OIG was not
given access to case file information until several months after our initial
request. Once we became aware of the open-case information, DEA
employees we interviewed about it stated that they were given the
impression that they were not to talk to the OIG about this case while it
remained open. We were able to re-interview the officials; but the OIG
was entitled to receive all such information from the outset and the
failure to provide it unnecessarily delayed our work.
Case File Review
We reviewed case files related to sexual misconduct. The case files
included documentation such as the initial complaint form, the interview
transcripts, the summary of investigative findings, the proposal letter,
and the decision letter. We first evaluated whether the allegations fell
within the scope of this review. We also evaluated whether misconduct
investigators opened investigations regarding the appropriate subjects
and whether they focused on all the issues contained in the allegation.
Further, we evaluated whether an allegation was an area of concern
pursuant to the Adjudicative Guidelines, and whether the allegation was
reported to the appropriate security personnel.
When reviewing the case files, we identified allegations that were
not handled appropriately in at least one phase of the disciplinary
process. We created a Problem Case data field and marked cases
accordingly. We then conducted analysis on this metric. During our
case file review, we identified cases where supervisors failed to report
alleged sexual harassment and sexual misconduct and where internal
affairs offices failed to open misconduct investigations when doing so was
warranted. We also identified cases in which an investigation was
opened, but the investigation lacked obvious due diligence such as failing
to interview alleged witnesses or failing to investigate additional subjects
that came to light during the course of the investigation.

69

Data Analysis
We identified allegations that it appeared were not handled
appropriately in at least one phase of the disciplinary process, including
reporting, investigation, and security issues. We created a data field to
mark these cases and analyzed the frequency of these issues. We
conducted an overall demographic analysis of the subjects, to include
race, gender, and grade level, but did not identify any trends or patterns.
In addition, we conducted a timeliness analysis of each
components disciplinary process. We divided the allegations into two
categories, formal discipline and informal discipline. For the allegations
that resulted in informal discipline, we also included allegations that
were administratively closed with no action taken. This allowed us to
compare timeliness across components for allegations that went through
the entire disciplinary process (those ending in formal discipline) as well
as the cases that went through only a part of the disciplinary process
(those ending in informal discipline/administrative closure). 73
Policy Review
We reviewed each components policies, procedures, and guidance
related to sexual harassment and sexual misconduct. These reviews
enabled us to identify deficiencies in these policies and their
implementation. These policy reviews also informed the interviews we
conducted, the case file reviews, and our data analysis.

We conducted an analysis of the length of time it took the law enforcement

components to investigate and adjudicate sexual misconduct and sexual harassment
allegations. Because many of the cases (e.g., child pornography, sexual abuse, and the
solicitation of prostitutes domestically) went through the criminal process or were
investigated by the OIG, the data was skewed significantly. Therefore, our analysis did
not show a true reflection of the length of time it took the law enforcement components
to handle these types of allegations.
73

70

APPENDIX 2: LAW ENFORCEMENT COMPONENT

DISCIPLINARY PROCESSES

The description of each components disciplinary process is based

on the OIGs review of the written policies and procedures related to the
respective component disciplinary process and interviews with component
officials and staff members responsible for the investigation and
adjudication of discipline and adverse actions.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
The mission of ATF is to conduct criminal investigations, regulate
the firearms and explosives industries, and assist other law enforcement
agencies. In 2013, ATF had 4,719 employees, of which 2,402 served as
Special Agents, 791 served as Industry Operations Investigators, and
1,526 served in other positions. In addition, currently, 4,657 ATF
employees hold a security clearance level of Secret or higher.
ATF Disciplinary Process
ATF supervisors are required to report all allegations of misconduct
to the Internal Affairs Division (IAD).
Four entities are involved in the ATF disciplinary process: (1) the
Internal Affairs Division (IAD); (2) the Office of Professional
Responsibility, Security Operations (OPRSO); (3) the Professional Review
Board (PRB); and (4) the Bureau Deciding Official (BDO).
Reporting Allegations of Sexual Misconduct and Harassment 74
ATF Order 8610.1B requires allegations to be reported to the IAD.
A duty agent documents the allegation and any relevant evidence in an
incident report. To determine whether an allegation should be
investigated on a preliminary basis, should be designated as a
headquarters internal investigation, or should be referred back to the
reporting field division for action or information only, the incident
report is reviewed by the Assistant Special Agent in Charge (ASAC) and
the Special Agent in Charge (SAC) of the Internal Affairs Division. The
Assistant Director (AD), Office of Professional Responsibility and Security
Operations (OPRSO) make the final decision on the type of investigation
initiated.

74

2012.

See generally ATF Order 8610.1B, Integrity and Other Investigations, March 9,

71

In addition, the IAD reports to the OPRSO, Security and

Emergency Programs Division (SEPD), Personnel Security Branch (PSB),
conditions that could raise a security concern. Depending upon the
seriousness of the allegation, the PSB may suspend an employees
eligibility for access to classified information pending the conclusion of
the IAD investigation.
Investigating Allegations of Sexual Misconduct and Harassment75
Most allegations concerning employee integrity, ethical, or criminal
violations are designated as internal investigations from their inception.
Where additional facts must be gathered to determine the nature and
seriousness of the misconduct, a preliminary investigation is conducted
at headquarters, but it may be converted into an internal investigation if
the nature of the allegation so warrants. All preliminary investigations
must be completed in 45 days.
If the allegation involves a minor infraction of ATF policy or is
performance related, it may be referred back to the field division as a
management referral. There are two types of management referrals, For
Action or Information Only. Management referrals For Action require
the field divisions to conduct an inquiry and report their findings to the
IAD within 60 days of their receipt.
When the field division management concludes the inquiry, they
consult the Chief Counsels Administrative and Ethics Division to
determine if discipline is warranted. Where an incident report is drafted,
but the allegation lacks specificity or does not involve an ATF employee,
the IAD may refer the matter back to the field division as a management
referral for Information Only. These referrals do not require further
inquiry or consultation with the IAD or the ATF Chief Counsel.
During an internal investigation, ATF investigators collect evidence
and signed, sworn statements and conduct interviews. At the conclusion
of an internal investigation, the investigator prepares the final report of
investigation containing a statement of the facts. No conclusions or
statements of substantiation are contained in the final report. The IAD
has approximately 120 days from receipt of the allegation to complete an
internal investigation and refer the final report to the Professional Review
Board. The AD OPRSO reviews and approves all reports of investigation
before they are sent to the Chair of the ATF Professional Review Board.

75

ATF Order 8610.1B, Integrity and Other Investigations, March 9, 2012.

72

Adjudicating Reports of Investigation 76

The Professional Review Board consists of five members who meet
monthly to review reports of investigation received from Internal Affairs
Division or the DOJ OIG. ATF defines non-adverse actions as letters of
reprimand and suspensions of 14 days or less. An adverse action
constitutes a suspension of 15 days or more, removal, demotion,
reduction in pay, or a furlough for 30 days or less.
If the Board determines that there is sufficient evidence of
misconduct warranting disciplinary action, the Board consults case
precedent and the ATF Table of Offenses and Penalties to determine the
appropriate penalty. In some cases, disciplinary action may not be
warranted and a letter of clearance is issued to the subject employee.
Where disciplinary action is warranted, a Human Resources Specialist
drafts a proposal letter containing the recommended discipline. The
Professional Review Boards goal is to issue proposal letters within 30
days of the Boards receipt of the report of investigation.
The Bureau Deciding Official renders discipline decisions based on
the report of investigation, the Boards proposal, and the employees
response. 77 The report of investigation supporting the proposed
disciplinary action is usually attached to the proposal letter, and the
employee is permitted to hire a representative in preparation. Once the
Deciding Official receives the employees response, the BDO considers
the relevant Douglas Factors, and has a goal to render a decision within
30 days. 78 The Deciding Official can reduce the penalty proposed by the
Board but may not increase it.
After the final decision letter is issued, the employees management
must ensure the proscribed penalty is imposed. For a suspension of
14 days or less, an employee may seek review of the BDOs decision by
ATF Order 2140.1, Adverse Action and Discipline, November 29, 2011, and
ATF Order 2141.2, Professional Review Board, September 5, 2006.
76

For a suspension of 14 days or less, 5 C.F.R. Part 752 203 requires the
components to provide the employee with a reasonable amount of time, but not less
than 24 hours, to make an oral or written reply to the proposal letter. Where the
penalty is a suspension of 15 days or more, removal, demotion, furlough, or a reduction
in pay, the employee has at least 7 days to make an oral or written response. See
5 U.S.C. Chapter 75 and 56 C.F.R. Part 752 203 and 404.
77

Under civil service laws, there are 12 factors, known as the Douglas Factors,
which should be considered in determining the appropriateness of a disciplinary
penalty. See Douglas v. Veterans Administration, 5 M.S.P.B. 313 (1981). See Appendix
5 for a list of the 12 Douglas Factors.
78

73

filing a grievance with the official designated in the decision. An

employee may appeal a suspension of 15 days, including a removal
before the Merit Systems Protection Board (MSPB). 79
ATF Guide for Offenses and Penalties 80
The ATF Guide for Offenses and Penalties does not contain specific
offense categories designed to address allegations of sexual misconduct,
but it describes conduct equivalent to sexual harassment or
inappropriate behavior of a sexual nature within the offense categories
Inappropriate Behavior and Poor Judgment and/or Conduct Unbecoming a
Federal Employee/Special Agent. For sexual harassment, the ATF Guide
contains an offense category directed at supervisors for failing to report
allegations of sexual harassment, but it does not define sexual
harassment. The explanations in the ATF Guide also contain a number
of general offense categories under which sexual misconduct could be
charged.
The Drug Enforcement Administration
The mission of the DEA is to enforce the controlled substances
laws and regulations of the United States. In 2013, the DEA had 11,053
employees, of which 5,250 served as Special Agents and 5,803 served in
other support capacities. In addition, currently, 9,401 DEA employees
hold clearances at the Secret level or higher.
DEA Disciplinary Process
There are three entities involved in the DEA disciplinary process:
(1) the Office of Professional Responsibility (OPR); (2) the Board of
Professional Conduct (HRB); and (3) the DEA Deciding Officials. 81

The Merit Systems Protection Board (MSPB) is an independent, quasi-judicial

agency in the Executive Branch that hears appeals of various agency decisions, most of
which are appeals of agencies adverse actions in discipline cases.
79

80

ATF Guide for Offenses and Penalties, March 9, 2010.

The DEA OPR investigates Task Force Officers (TFO) in the same manner as
permanent employees. However, the adjudication of TFOs by the DEA is handled by
their division management. ATF, the FBI, and the USMS do not investigate misconduct
allegations involving TFOs unless the incident involves one of their permanent
employees.
81

74

Reporting Allegations of Sexual Misconduct and Sexual Harassment82

Once an allegation is reported to the OPR, the allegation must be
given a designation or code before it is assigned for investigation. There
are three possible designations made by the Deputy Chief Inspector (DCI)
or the Associate Deputy Chief Inspector (ADCI) based on how specific the
allegations are at the time of reporting. The designation also indicates
whether the Inspector assigned is permitted to obtain signed, sworn
statements from the subject and other witnesses. The three designations
are Administrative (AD), Professional Responsibility (PR), and Information
Gathering Field (IGF). Each designation is discussed in more detail in
the next section.
Investigating Allegations of Sexual Misconduct and Sexual Harassment
An allegation is designated as an Administrative (AD) where there
is not sufficient evidence at the time of reporting to determine if a
possible integrity violation occurred. AD inquiries must be completed
within 30 days of the receipt of the allegation. The Inspector assigned to
an AD case is not permitted to elicit signed, sworn statements. If an AD
preliminary inquiry develops sufficient evidence to determine that a
possible integrity violation occurred, an AD case may be converted to
either an IGF or a PR case.
An allegation is designated as a Professional Responsibility (PR
where there is a clear indication of an integrity violation. PR cases
involve criminal activity and violations of the DEA Standards of Conduct.
Employees are typically charged under the general offense category
Failure to Follow Instructions or Poor Judgment when they commit an
integrity violation. PR investigations must be completed in 180 days or
less. Only PR cases are forwarded to HRB and Deciding Officials for
disciplinary action.
An allegation is designated as Information Gathering Field (IGF)
where the initial allegation is vague and requires the Inspector assigned
to gather additional information. IGF cases typically include loss of
property or fiscal offenses and are charged under the general offense
category Conduct Unbecoming a DEA Agent or Non-Agent. The Inspector
assigned to PR and IGF cases may elicit signed, sworn statements from
subjects and witnesses. If an IGF case develops to the point that a
particular DEA employee violated the Standards of Conduct, it is
converted to a PR case so that it can be forwarded to the HRB and the
Deciding Officials.

82

DEA Office of Professional Responsibility Handbook, undated.

75

Further, an IGF case can be converted to a PR case once additional

information is obtained. IGF investigations must be completed in
90 days or less. However, if an IGF-designated allegation is converted to
a PR investigation, the PR investigation time standard of 180 days is
applied from the date of conversion. Once a designation is made and the
case is assigned, a DEA OPR Inspector initiates a preliminary inquiry to
determine whether the allegation should be fully investigated, referred
back to field division management for handling (management referral), or
administratively closed.
During the preliminary inquiry and throughout the investigation
process, the DEA OPR Inspector also evaluates whether the allegation
raises security concerns for the DEA or whether the allegation
compromises the employees continued ability to hold a security
clearance. When security issues are present, the assigned Inspector
consults the ADCI or the DCI, who have the sole discretion to determine
whether the allegation warrants referral to the Office of Security
Programs (OSP). If a referral is made, the DEA OPR provides
investigative support.
If there is no indication of misconduct, or that a DEA employee or
Task Force Officer (TFO) was involved, the matter is administratively
closed. If an allegation is referred back to the field, field management
may also be required to conduct further inquiries and report what they
learn to the DEA OPR. If a full investigation is warranted, the Inspector
gathers additional evidence and interviews witnesses. When the
investigation is completed, the assigned Inspector prepares a final report
containing a statement of facts learned. No conclusions or statements of
substantiation are contained in the final report. Before the final report is
sent to the Chair of the Board of Professional Conduct, it must be
approved by the ADCI or DCI.
Adjudicating Reports of Investigation 83
The Chair of the Board of Professional Conduct assigns cases to
one of the three Board members. Unlike the ATF Professional Review
Board, the DEA HRB is not a Board with voting members. Instead, the
Board is staffed with three proposing officials who review the report of
investigation, case precedent, and the DEA Guide of Disciplinary
Offenses and Penalties to determine the appropriate penalty.
Like ATF, Human Resources Specialists draft the proposal letter
before it receives a final review by the Chair. For letter of reprimands
and suspensions of 14 days or less, there is no Chief Counsel review
83

DEA Human Resources Manual on Discipline, March 17, 2005.

76

before the proposal letter is sent to the DEA Deciding Officials. Where
the proposed penalty is a suspension of 15 days or more up to removal,
the DEA Chief Counsels Office must review the proposal letter for legal
sufficiency.
Once this proposal letter is issued, the employee has an
opportunity to provide an oral or written response, or both, to the
Deciding Officials assigned to their case. 84 DEA employees may also seek
representation. Unlike the other components, DEA employees are not
provided a copy of the final report of investigation. Instead, they may
review the report in DEA space to prepare their response and take notes.
When rendering a decision, the DEA Deciding Officials also consider the
report of investigation, the proposal letter, case precedent, the relevant
Douglas Factors, and any oral or written response.
After the final decision letter is issued, the employees management
must ensure the prescribed penalty is imposed. For suspension of
14 days or less, an employee may grieve the decision with the official
designated in the decision letter. For suspensions of 15 days or more up
to removal, an employee may appeal the decision before the MSPB.
DEA Guide for Disciplinary Offenses and Penalties 85
The DEA Guide of Disciplinary Offenses and Penalties contains
seven offense categories that could presumably address allegations of
sexual misconduct and sexual harassment, including Unprofessional or
Inappropriate Conduct of a Sexual Nature, Sexual Harassment, and
Retaliation against an Employee Resulting from or in Connection with an
Allegation of Sexual Harassment. However, the only penalty suggested
for Sexual Harassment is removal. Other offense categories that do not
specifically address sexual misconduct but may, under certain
circumstances, be considered sexual misconduct are Improper
Association with a Convicted Felon, Confidential Source and/or Persons
Connected with Criminal Activity; Disrespectful or Unprofessional Conduct;
and Criminal, Dishonest, Infamous or Notoriously Disgraceful Misconduct.
These categories provide a range of penalties that can be applied.
The Federal Bureau of Investigation
The mission of the FBI is to protect and defend the United States
against terrorist and foreign intelligence threats; to uphold and enforce
the criminal laws of the United States; and to provide leadership and
criminal justice services to federal, state, municipal, and international
84

5 U.S.C. Chapter 75 and 56 C.F.R. Part 752 203 and 404.

85

DEA Guide for Disciplinary Offenses and Penalties, undated.

77

agencies and partners. In 2013, the FBI had 35,344 employees, of which
13,598 served as Special Agents and 21,746 served as Intelligence
Analysts, Language Specialists, Scientists, Information Technology
Specialists, and in other support capacities. Further, all FBI staff hold
clearances at the Top Secret level or higher.
FBI Disciplinary Process 86
There are four entities involved in the FBI disciplinary process:
(1) the Internal Investigations Section (IIS), Inspection Division (INSD);
(2) the Office of Professional Responsibility (OPR) Proposing Officials and
Deciding Officials; (3) the Human Resources Division (HRD); and (4) the
Disciplinary Review Board (DRB).
Reporting Allegations of Sexual Misconduct and Sexual Harassment87
The Internal Investigations Section (IIS) is the unit of the
Inspection Division responsible for overseeing the initial processing and
investigation of misconduct allegations. All allegations of employee
misconduct must be in writing before the Initial Processing Unit (IPU)
enters the allegation into the case management system. If the allegation
is not specific, or cannot be attributed to a specific FBI employee, the
assigned Conduct Review Specialist may request additional information
from the field. In addition, the FBI IIS refers all allegations of
misconduct to the Security Division (SecD), Analysis and Investigations
Unit (AIU) for a determination as to whether the allegation raises security
risks for the FBI or whether the allegation raises concerns about the
employees ability to hold a security clearance. If these risks are present,
the AIU opens a parallel investigation.
Investigating Allegations of Sexual Misconduct and Sexual Harassment
The Lead Conduct Review Specialist, IPU Unit Chief, and the
Section Chief review the allegation to determine whether to open an
investigation at headquarters, delegate the investigation to the field with
IIS oversight, or administratively close the matter. Allegations are
generally closed where there is insufficient evidence to warrant an
investigation. When making these determinations, the reviewers rely on
The procedural protection afforded to most employees in the federal service
does not apply to most FBI employees. For example, FBI employees cannot appeal
disciplinary decisions to the Merit Systems Protection Board like most other federal
employees (5 U.S.C. 7511(b)(8)). In addition, FBI policy does not require the
proposing officials and deciding officials to be walled off from one another when
adjudicating discipline.
86

87

2013.

FBI Internal Investigations Section IIS, Supervisors Guide, Version 6, March

78

their experience and the FBI Offense Codes and Penalty Guidelines. It is
within the sole discretion of the IIS Section Chief to open or close an
allegation.
If an investigation is opened at headquarters, or in the field with
IIS oversight, a Supervisory Special Agent (SSA) or Assistant Inspector in
Place (AIIP) collects all evidence and signed, sworn statements and
conducts interviews. At the conclusion of the investigation, the
investigation case file is forwarded to the FBI Office of Professional
Responsibility for adjudication.
Adjudicating Reports of Investigation 88
The Office of Professional Responsibility (OPR) adjudicates all
allegations of misconduct involving FBI employees. The OPR reviews all
relevant facts and evidence, case precedent, and the Douglas Factors
when preparing a report. If the allegation is substantiated, the FBI OPR
determines the proposed penalty and final decision.
For oral reprimands, letters of censure, and suspensions of
14 days or less (non-adverse actions), there is no formal proposal stage
in the process and one of the two Adjudication Unit Chiefs determines
the discipline imposed. For suspensions of 15 days or more, including
removals (adverse actions), the Unit Chiefs propose discipline and the
Assistant Director makes the final decision. However, the Assistant
Director must approve all proposal letters. When rendering the final
decision, the Assistant Director considers the employees oral and/or
written reply to the allegations. The Assistant Director may not impose a
penalty greater than the proposal. Generally, the FBI attempts to
complete the investigation and adjudication of a misconduct case within
180 days.
Although most of the procedural protections outlined in the Code
of Federal Regulations do not apply to FBI employees, a nonprobationary FBI employee may appeal non-adverse actions to the
Human Resources Division (HRD). Non-disciplinary counseling, oral
reprimands, and letters of censure are not appealable. The Disciplinary
Review Board, which is chaired by the Assistant Director and is made up
of five FBI employees, both agents and non-agents, decide appeals of
adverse actions (suspensions of 15 days or more up to removal).

The Office of Professional Responsibility (OPR), which is part of the Directors

Office, is headed by an Assistant Director who reports directly to the Deputy Director.
OPR has two adjudication units, each of which is headed by a Unit Chief. See
generally, FBI Policy Implementation Guide for Adjudication of Delegated Disciplinary
Matters, Office of Professional Responsibility, March 2013.
88

79

FBI Offense Codes and Penalty Guidelines 89

The FBI Offense Table and Penalty Guidelines contains six offense
categories that specifically address sexual misconduct allegations. The
FBI table provides guidance on the range of discipline for sexual
misconduct consensual as described above and provides guidance on
the types of penalties resulting from engaging in improper relationships.
These offenses include improper relationships with a criminal element;
with a subordinate/superior; and with an asset, confidential witness, or
informant.
The table further provides guidance on penalties where an
employee engages in indecent/lascivious acts and sexual harassment
with a broad range of penalties.
The United States Marshals Service
The mission of the USMS is to enforce federal laws and provide
support to virtually all elements of the federal justice system. In 2013,
USMS had 5,602 employees, of which 94 served as U.S. Marshals, 3,925
as Deputy U.S. Marshals and Criminal Investigators, and 1,583 as
Detention Enforcement Officers and administrative employees. In
addition, 3,063 USMS employees currently hold clearance levels at the
Secret level or higher.
USMS Disciplinary Process
There are three entities involved in the USMS disciplinary process:
(1) the Office of Professional Responsibility, Internal Affairs (OPR-IA);
(2) the USMS Proposing Officials; and (3) the USMS Deciding Official.
Reporting Allegations of Sexual Misconduct and Sexual Harassment90
The USMS employs a three-tier evaluation process to determine
whether an allegation of misconduct warrants full investigation, should
be referred back to the originating office (district or division) as a
management referral, or discretionarily closed due to insufficient
evidence. When an allegation of misconduct is reported to USMS
Internal Affairs, the Deputy Chief Inspector, the Chief Inspector, and the
Deputy Assistant Director review the allegation at the outset to make
these determinations. If there is insufficient evidence, reviewers
discretionarily close the matter.
89

FBI Offense Codes and Penalty Guidelines, January 15, 2012.

USMS Policy Directive, 2.2. General Operations, Critical Reporting

Requirements, undated.
90

80

Investigating Allegations of Sexual Misconduct and Sexual Harassment 91

Where there is sufficient evidence, but the reviewers believe the
misconduct warrants a suspension of 14 days or less (discipline), OPR-IA
refers the matter back to the originating office for investigation. The
OPR-IA reviewers rely on their institutional knowledge, but do not
consult the USMS Table Disciplinary Offenses and Penalties when
determining if an allegation warrants full investigation or referral back to
the originating office.
In addition, if the allegation raises security concerns for USMS or
affects the employees continued ability to hold a security clearance, and
the allegation is fully investigated at headquarters, the OPR-IA Chief
Inspector refers the matter to the Office of Security Programs, Tactical
Operations Division (OSP TOD). OSP TOD does not receive information
about matters referred back to the originating office.
If the matter warrants full investigation, USMS Inspectors collect
evidence and signed sworn statements and conduct interviews. At the
conclusion of the investigation, the Inspector writes a final report of
investigation. USMS has a goal to complete a headquarters investigation
within 90 days. At the close of the investigation, the final report is sent
to the USMS Proposing Officials for adjudication.
Adjudicating Reports of Investigation 92
The USMS has two adjudication processes depending upon the
severity of the proposed action to be taken based on the results of the
investigation conducted.
Letters of Reprimand and Suspensions of 14 Days or Less (Discipline) 93
Once an allegation is referred back to the field, district or division
management work with the Discipline Management Unit (DM) to collect
additional evidence, complete an incident or field report, and, ultimately,
impose discipline. Typically, DM Human Resources Specialists consult
the offense tables, determine case precedent, and obtain the Douglas
Factors from the field to draft the proposal and decision letters. In some
cases, the originating office drafts the letters with Discipline
USMS Policy Directive, 2.2, General Operations, Critical Reporting
Requirements, undated.
91

USMS Policy Directive, Human Resources, 3.3, Performance & Related Matters,
Discipline and Adverse Actions, 2007.
92

Unlike the other components, the USMS issues a formal proposal and
decision letter where the proposed penalty is a letter of reprimand.
93

81

Managements assistance. DM has a goal to complete the adjudication of

a management referral within 120 days.
For these cases, the Chief Deputy U.S. Marshal or division
counterpart serves as the proposing official in discipline cases, while the
U.S. Marshal or Division counterpart serves as the Deciding Official.
Employees subject to discipline may make an oral or written response, or
both, to their respective Deciding Officials, and may grieve the decision to
the official designated in the decision letter.
Suspensions of 15 days or More up to Removal (Adverse Actions)
For suspensions of 15 days or more up to removal, the two USMS
Proposing Officials are responsible for proposing disciplinary action,
while the USMS Deciding Official renders discipline decisions. The
USMS Proposing Officials are assigned cases based on their availability.
When drafting the proposal, the Proposing Official consults the final
report of investigation, case precedent, and the offense tables to
determine the appropriate penalty.
Unlike some of the other components that use Human Resources
Specialists to draft the proposal letter, the USMS Proposing Officials
draft the proposal letters for adverse actions cases. The USMS Office of
General Counsel also reviews for legal sufficiency all letters where
adverse action is proposed. Once the proposal letter is approved by
General Counsel, it is issued to the employee and their district or
division management.
To maintain the independence of the USMS Proposing and
Deciding Officials, the Discipline Management Unit (DM) provides the
USMS Deciding Official with the final report of investigation and the
proposal letter to render a decision. Like the other components, USMS
employees are provided a reasonable period of time (10 days) to make an
oral and/or written reply to the USMS Deciding Official.
The USMS Deciding Official reviews the final report of
investigation, case precedent, the employee oral and/or written reply,
and the Douglas Factors when rendering a discipline decision. The
Office of General Counsel also reviews the decision letter for legal
sufficiency. Once approved, the final decision letter is issued and the
employee is advised that they may appeal the decision before the MSPB.
If there is no appeal, district or division management must ensure the
proscribed penalty is imposed.

82

USMS Guidance Table of Disciplinary Offenses and Penalties 94

The USMS Guidance Table of Disciplinary Offenses and Penalties is
virtually identical to the DEA Guide for Disciplinary Offenses and
Penalties and contains six offense categories that could presumably
address allegations of sexual misconduct, including Unprofessional or
Inappropriate Conduct of a Sexual Nature, Sexual Harassment, and
Retaliation against an Employee Resulting from or in Connection with an
Allegation of Sexual Harassment.
Other offense categories that do not specifically address sexual
misconduct, but may under certain circumstances be a type of sexual
misconduct, are Improper Association with a Convicted Felon, Confidential
Source and/or Persons Connected with Criminal Activity, and
Disrespectful or Unprofessional Conduct.
Standards of Conduct
All of the components have specific policies, often referred to as
their standards of conduct, which inform employees of the behavior
expected of them. After reviewing the standards of conduct of the law
enforcement components, we learned that they offer specific guidance
related to sexual harassment and inappropriate relationships, but not
other forms of sexual misconduct. Generally, the components offense
tables provide more information. 95

94

USMS Guidance Table of Disciplinary Offenses and Penalties, May 3, 2012.

See generally ATF Order 2130 1A, Conduct and Accountability, February 7,
2012; DEA Personnel Manual, Section 2735.15(A)(1), Standards of Conduct, undated;
USMS Policy Directives, Code of Professional Responsibility, January 8, 2009; FBI Ethics
and Integrity Program Policy Implementation Guide 0454PG, October 5, 2011; and the
FBI Personal Relationships Policy, March 27, 2001. For more information about the law
enforcement components standards of conduct, refer to the OIG Evaluation and
Inspections Report, 15-2, January 2015, Review of Policies and Training Governing OffDuty Conduct by Department Employees Working in Foreign Countries.
95

83

APPENDIX 3: LAW ENFORCEMENT COMPONENT OFFENSE

TABLES SEXUAL MISCONDUCT AND SEXUAL HARASSMENT

Law Enforcement Offense Tables Sexual Misconduct and Sexual

Harassment

ATF Offenses
Association with
Disreputable Persons

Explanation
Includes, but not limited to, improper personal
relationships with convicted felons, informants, and
subjects of investigations.
Admonishment to Removal

Conduct Prejudicial to
the Government

Includes criminal, infamous, dishonest, immoral, or

notoriously disgraceful conduct, or other conduct
prejudicial to the government.
Removal

Failure by Supervisor to
Report Allegations of
Sexual Harassment
Inappropriate Behavior

No explanation provided.
Admonishment to Removal
Includes, but not limited to, inappropriate actions
directed toward co-workers, subordinates, or
supervisors. Also includes behavior (e.g., teasing, jokes,
gestures, display of materials) of a sexual, sexual
orientation, gender nature. Also includes intimidating,
threatening, sexually insensitive remarks.
Admonishment to Removal

Poor Judgment and/or

Conduct Unbecoming a
Federal Employee/
Special Agent

Includes, but not limited to, conviction of a criminal

offense, engaging in sexual activity in ATF office space,
and creating an embarrassing situation for the Bureau.
Admonishment to Removal

DEA Offenses
Conduct Unbecoming a
DEA Employee

Explanation
No explanation provided.
Reprimand to Removal

Criminal, Dishonest,
Infamous, or Notoriously
Disgraceful Misconduct
Disrespectful or
Unprofessional Conduct

No explanation provided.
14-Day Suspension to Removal

Improper Association
with a Convicted Felon,
Confidential Source
and/or Persons
Connected with Criminal
Activity

All DEA employees are held accountable for this type of

behavior.
Reprimand to Removal

Includes use of insulting, abusive, or obscene language,

angry outbursts, disrespectful comments, provoking
quarrels, or inappropriate remarks.
Reprimand to Removal

84

DEA Offenses
Retaliation against an
Employee Resulting from
or in Connection with an
Allegation of Sexual
Harassment
Sexual Harassment

Explanation
Any person who has been found to have engaged in the
act of retaliation.
Reprimand to Removal

Unprofessional or
Inappropriate Conduct of
a Sexual Nature

Includes teasing, jokes, actions, gestures, display of

materials, or remarks of a sexual nature.
Reprimand to Removal

FBI Offenses
Asset/CW/Informant/CH
S (Source) Improper
Personal Relationship

Explanation
Engaging in a social, romantic, or intimate relationship
or association with a source.
Letter of Censure to Removal

Disruptive Behavior

Engaging in inappropriate verbal or physical conduct

while on official business.
Disruptive Behavior or in an FBI space or vehicle, which
is disruptive or negatively impacts the workplace.
Oral Reprimand to 10 Days

Improper Relationship
Criminal Element

Without authorization, engaging in an ongoing social,

romantic, or intimate relationship or association with a
person involved in criminal activities.
Letter of Censure to Removal

Improper Relationship
with a Subordinate

Engaging in or seeking a romantic or intimate

relationship with a subordinate that violates the
strictures of the FBIs Personal Relationships Policy.
Letter of Censure to Removal

Indecent/Lascivious Acts

Inappropriately acting in a manner to appeal to or

gratify the sexual desires of the employee, his victim, or
both or indecently exposing a body part to public view.
5-Day Suspension to Dismissal

Other Felonies

Engaging in an act which is considered a felony in the

jurisdiction in which the act occurred.
10-Day Suspension to Removal

Other Misdemeanors

Engaging in an act which is considered a misdemeanor

in the jurisdiction in which the act occurred.
Letter of Censure to Removal

Sexual Harassment

Making unwelcome or unwanted sexual advances,

requesting sexual favors, or engaging in other verbal or
physical conduct of a sexual nature.
Letter of Censure to Removal

As defined in Title VII of the Civil Rights Act of 1964

Removal

85

FBI Offenses
Sexual Misconduct
Consensual

Explanation
Engaging in sexual, intimate, or romantic activity with a
willing partner(s) in an inappropriate location or while
on duty.
Letter of Censure to Removal

Unprofessional Conduct
Off Duty

Engaging in conduct, while off duty, which dishonors,

disgraces, or discredits the FBI; seriously calls into
question the judgment or character of the employee; or
compromises the standing of the employee among his
peers or his community.
Oral Reprimand to Removal

Unprofessional Conduct
On Duty

Engaging in conduct, while on duty, which dishonors,

disgraces, or discredits the FBI; seriously calls into
question the judgment or character of the employee; or
compromises the standing of the employee among his
peers or his community.
Letter of Censure to Removal

1 Prior to January 2012, this offense category was previously known as Sexual Misconduct NonConsensual. When a revision of the FBI offense table occurred, the category name was changed to Sexual
Harassment. There is no material difference in the explanations provided for both offense categories.

USMS Offenses
Conduct Unbecoming a
USMS Employee
Conduct Which Creates a
Reasonable Belief that
the Employee Has
Committed a Crime for
Which a Sentence of
Imprisonment May Be
Imposed
Conviction of a Law
Enforcement Officer of a
Felony
Criminal, Dishonest,
Infamous, or Notoriously
Disgraceful Misconduct

Explanation
No explanation provided.
Reprimand to Removal
No explanation provided.
Indefinite Suspension to Removal

Disrespectful or
Unprofessional Conduct

Includes disrespectful comments and inappropriate

remarks.
Reprimand to Removal

Improper Association
with a Convicted Felon,
Witness Protection
Program Participant,
Confidential Source
and/or Persons
Connected with Criminal
Activity

All USMS employees are held accountable for this type

of behavior.
Reprimand to Removal

No explanation provided.
Removal
No explanation provided.
14-Day Suspension to Removal

86

USMS Offenses
Retaliation against an
Employee Resulting from
or in Connection with an
Allegation of Sexual
Harassment
Sexual Harassment

Explanation
Any person who has been found to have engaged in the
act of retaliation.
5-Day Suspension to Removal

Unprofessional or
Inappropriate Conduct of
a Sexual Nature

Includes teasing, jokes, actions, gestures, display of

materials, or remarks of a sexual nature.
Reprimand to Removal

Violations of the Code of

Professional
Responsibility

No explanation provided.
Reprimand to 14-Day Suspension

As defined in Title VII of the Civil Rights Act of 1964, as

amended.
5-Day Suspension to Removal

Sources: Component offense tables.

87

APPENDIX 4: SEXUAL MISCONDUCT AND SEXUAL

HARASSMENT OFFENSE CATEGORY ANALYSIS

The law enforcement components often applied general offense

categories, for example, Conduct Unbecoming a Federal Employee, to
various types of allegations of sexual misconduct and sexual
harassment. To conduct the offense category analysis, we reviewed the
misconduct case files to determine the nature of the sexual misconduct
and sexual harassment that occurred in each case. We created
standardized offense categories to allow us to better characterize the
misconduct and to make comparisons across the components and
among demographic categories such as position, race, and grade level. 96
After normalizing the offense categories, we analyzed the frequency
with which sexual misconduct or sexual harassment was alleged to have
occurred in each component. We assessed the rate that this type of
alleged misconduct occurred by population and determined the types of
alleged offenses that occurred most often.
Rate of Sexual Harassment and Sexual Misconduct Allegations by
Population
Based on the number of reported alleged offenses involving sexual
harassment and sexual misconduct, the FBI had the lowest rate of this
type of misconduct. The USMS had the highest rate of this type of
misconduct. Table 2 describes the rate of sexual misconduct and
harassment by population.
Table 2: Rate of Sexual Harassment and Sexual Misconduct

Allegations by Population

Rate by
Employees
Total Offenses
Population
ATF
4,719
51
10.8
DEA
11,053
136
12.3
FBI
35,344
343
9.7
USMS
5,602
91
16.2
Sources: Component misconduct case files and annual reports.

For the purposes of this analysis, we isolated all the sexual misconduct and
sexual harassment offenses. Many subjects were alleged to have committed additional
offenses that were not sexual in nature (for example, Lack of Candor). Therefore, we
removed those offenses from our analysis.
96

88

ATF has 4,719 employees. There were 51 alleged sexual

misconduct and sexual harassment offenses. For every 1,000 ATF
employees, there were 10.8 alleged offenses of this type.
The DEA has 11,053 employees. There were 136 alleged sexual
misconduct and sexual harassment offenses. For every 1,000 DEA
employees, there were 12.3 alleged offenses of this type.
The FBI has 35,344 employees. There were 343 alleged sexual
misconduct and sexual harassment offenses. For every 1,000 FBI
employees, there were 9.7 alleged offenses of this type.
The USMS has 5,602 employees. There were 91 alleged sexual
misconduct and sexual harassment offenses. For every 1,000 USMS
employees, there were 16.2 alleged offenses of this type.
We also looked at the types of sexual misconduct and sexual
harassment allegations that were reported at each law enforcement
component. Table 3 shows the number of alleged sexual misconduct and
harassment allegations by offense type.
Table 3: Alleged Sexual Misconduct and Sexual

Harassment by Offense Type

Offense Categories
Inappropriate Relationship
(Supervisor/Subordinate and Colleagues)
Sexting
Sexual Harassment
Misuse of Government Property to
Facilitate Sexual Activity (Office/Vehicle)
Inappropriate Sexual Comments and/or
Gestures
Improper Association with a Criminal
Element
Solicitation of Prostitutes (Overseas)
Solicitation of Prostitutes (Domestic)
Supervisor Failure to Report Sexual
Misconduct
Alleged Sexual Assault
Alleged Sexual Abuse (Minor)
Improper Association with a Confidential
Source
Child Pornography
Retaliation for Reporting Sexual
Misconduct/Harassment
Obstruction of an Official Investigation
Alleged Sexual Abuse (Inmate)
Indecent Exposure
Videotaping Undressed Women without
Consent

89

ATF

DEA

FBI

USMS

Total

10
14
3

18
23
28

77
36
50

15
13
4

120
86
85

56

74

29

22

61

3
0
1

13
19
2

9
6
15

8
1
1

33
26
19

2
0
1

2
3
3

8
10
11

4
3
1

16
16
16

1
1

7
2

6
7

0
1

14
11

0
0
0
0

1
3
0
0

9
5
0
3

0
1
8
3

10
9
8
6

Offense Categories
ATF
Assault
0
Solicitation of Sex (Multiple Partners)
1
Inappropriate Relationships (Foreign
Nationals)
0
Misuse of Position (Strip Club)
0
Unprofessional Conduct Off Duty (Strip
Club)
1
Grand Total
51
Sources: Component misconduct case files.

DEA

2
0

FBI
0
1

USMS
0
0

Total
2
2

0
0

1
1

0
0

1
1

0
136

0
343

0
91

1
621

Inappropriate Relationship (Supervisor/Subordinate and Colleagues)

Across the law enforcement components, the offense category
analysis showed there were 120 total alleged offenses involving
Inappropriate Relationship (Supervisor/Subordinate and Colleagues).
Nineteen percent of the total number of alleged sexual misconduct and
sexual harassment offenses involved this offense category.
As compared to the other components, Inappropriate Relationship
(Supervisor/Subordinate and Colleagues) was alleged to have been
committed more often than any other offense at the FBI. At the FBI,
there were 77 alleged offenses of this type, or 22 percent of the total
number of sexual harassment and sexual misconduct offenses.
Sexting
The second most common alleged offense was the transmission of
sexually explicit texts, e-mail messages, or images, known colloquially as
sexting. We were unable to fully analyze this offense category because
the law enforcement components do not have the technology to detect
the transmission of sexually explicit images or photographs sent via text
message. Therefore, we only analyzed the alleged offenses reported to
their respective internal affairs offices.
The offense category analysis showed that there were 86 total
alleged offenses involving sexting. Fourteen percent of the total number
of alleged sexual misconduct and sexual harassment offenses involved
this offense category.
As compared to the other components, sexting was alleged to have
been committed most often at ATF. There were 14 alleged offenses of
this type, or 27 percent of the total number of alleged offenses.
Sexual Harassment
The third most common alleged offense involved behavior we
considered sexual harassment. The offense category analysis showed
there were 85 total alleged offenses of this type. Fourteen percent of the
90

total number of alleged sexual misconduct and sexual harassment

offenses involved this offense category.
The DEA and the FBI had the majority of alleged offenses involving
sexual harassment. At the DEA, there were 28 alleged offenses of this
type and 50 alleged offenses at the FBI.
Solicitation of Prostitutes (Overseas)
There were 26 total allegations involving the solicitation of
prostitutes (overseas). These allegations constituted 4 percent of the
total number of alleged sexual misconduct and sexual harassment
offenses.
The DEA had the majority of alleged offenses involving solicitation
of prostitutes (overseas). There were 19 alleged offenses of this type, or
14 percent of the total number of alleged offenses.

91

APPENDIX 5: DOUGLAS FACTORS

The Merit Systems Protection Board, in its landmark decision,

Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), established
criteria that supervisors must consider in determining an appropriate
penalty to impose for an act of employee misconduct.
Although not an all-inclusive list, the following factors must be
considered, when relevant, in determining the severity of the discipline:
1. The nature and seriousness of the offense, and its relation to
the employees 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 employees job level and type of employment, including
supervisory or fiduciary role, contacts with the public, and
prominence of the position;
3. The employees past disciplinary record;
4. The employees 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 employees ability to perform
at a satisfactory level and its effect upon supervisors
confidence in the employees work ability to perform assigned
duties;
6. The consistency of the penalty with those imposed upon other
employees for the same or similar offenses;
7. The consistency of the penalty with any applicable agency table
of penalties;
8. The notoriety of the offense or its impact upon the reputation of
the agency;
9. The clarity with which the employee was on notice of any rules
that were violated in committing the offense, or had been
warned about the conduct in question;

92

10. The potential for the employees rehabilitation;

11. Mitigating circumstances surrounding the offense such as
unusual job tensions, personality problems, mental
impairment, harassment, or bad faith, malice or provocation on
the part of others involved in the matter; and
12. The adequacy and effectiveness of alternative sanctions to
deter such conduct in the future by the employee or others.

93

APPENDIX 6: ILLUSTRATION OF ACCESS ISSUES

Example of DEA Redaction

The DEA initially provided case summaries to the OIG that were
substantially redacted. As a result, the OIG was unable to determine the
nature and circumstances of the allegations reported. The following five
pages are an example of one of the redacted case summaries the DEA
provided in its initial production of documents.

94

OPR Case Record and Disposition

Agent

Subject Nrmre:
Admill Lu.oe:
OIG:

GS-14

O9H

No

DlIIe/ollRE: 02105120[3
Filial Df!ciIil)II :

IIRIJI'ropoIul:

SUBJECT 1

ImJejillile Leo.oe:

Ltd Dilly:

Improper AssO(:iation with D Criminal Element

lIRB Proposul Dille:

FillulDo)'s Off:

IIRD Duys Off:

Fillul DecisiOlI DUle:

Decisioll Relllorks:

Agent

Subject NOlllt:
Admill Lto ,'t:
OIG:

No

Illdejilriff! Leo.'t:

Ltd D rr/)':

Alleged 0l/ellses:

09
[4

28
Dale Iu liRE: 0210512013
Filial DecisiOlt:

IIRE/'ro/lUsal:

GS-14

SUBJECT 4

Conduct Unbecoming (agents)

Failure to Follow Instmctions
Poor Judgment
IIR8 Prl)posa/ DO ff!:

Fimr' Do)'s Off:

IIRB Days Off:

Filla/DecisiOlr DUle:

Decisiall Remarks:

SlIbjecl Nome:

Agent

Alllllill Leo.'e:
OIG:

No

LId 0111)':
Alleged OffemeI:

Dale 10 liRE: 0210512013

Filial Dtcisioll:

GS-14

SUBJECT 5

Illdejillile Leul'e:

09 Conduct U~becoming (pgents)

09H Improper Association with n Criminal E[ement

IIIW I'rl)IIl)Su/:

IIRD Proposal Dale:

Filllll Days Off:

lIRB Days Off:

Filla/ Decisioll DOff!:

Decisioll Remarks:

_ , . , . . , Auguil 07, 2013

Page

OEAH Form 376

-~,

95

0(

28

-----

OPR Case Record and Disposition

-Subject Nalllc:
Adm;" Leal'e:

DIG:

GS-13

Agellt
Ltd Dm)':

No

Alleged Offenses:

Dnle (o HR B: 0210512013

Filial Decision:

09

HRB Prol'o.ml:

SUBJECT 6

Indefinite LeUl'e:

Conduct Unbecoming (agents)

HRB Proposal Date:

HRB Days Off:

Filial Deci.~ilm Dute:

Filial DuJ's OJ/"

Decision Remarks:

Suhject Nallle:
Adlll;1I Leave:

DIG:

SUBJECT 7

L/(fDuI),:

No

Date/o IIRD:

OS-1 3

Agent

Allege(/ Offenses:

02/05/2013

Filial DecisiOIl.'

09

HRD Proposal:

Im/eftnitc LeUl'e:

Conduct Unbecoming (agents)

HRB Proposal Dale:

Filial Days Off:

HRB Days Ojf:

Filial Dcdsi ol/ Dmc:

Decisioll RClIlurks:

Wednesday, August 01, 2013

Page

OEAH Form 376

March 2001

96

3 of 28

OPR Case Record and Disposition

OS-13

Agent

Subject Name:

SUBJECT 8

DIG:

Alleged Offemes:

No

Darc to HRB:

ludefinite Le(we:

Ltrl Dilly:

Admill Leave:

02/05 /2013

Filial Decision:

09 Conduci Unbecoming (agents)

28* Poor Judgment
HRO Proposal Dare:

HRIJ I'rQPo,wll:

Fimti D(lJ'.~ Off:

H R B Days Off:

Filial Dc(:is;oll Date:

Decision Remarks:

Is tllere drug or 1I01lllrllg evil/cue/! ill

fhi.~

case:

No

No /loll-drllg eviden ce; till exllihil.~ re filmed 10 case file:

Referral o/Collalcrtli isslles 10 other ullit/org(lI/izarion;

Closed By:

No
No

Date Closed:

Allegatioll Descriptioll:

Wodnllsday, Allgus! 07, 2013

Page

OEAH F(l(ITI376
March 2001

97

4 01 28

98

APPENDIX 7: THE OFFICE OF THE DEPUTY ATTORNEY GENERALS

RESPONSE TO THE DRAFT REPORT

u.s. Department of Justice

Office of the Deputy Attorney General

Washington. DC 20530

March 13.2015

MEMORANDUM
TO:

Michael Horowitz
Inspector General
U.S. Department of Justice

FROM:

Carlos Felipe Uriarte

Associate Deputy Attorney General
Andrew D. Goldsmith
National Criminal Discovery Coordinator

SUBJECT:

Response: Handling of Sexual Harassment and Misconduct Allegations

by the Department's Law Enforcement Components

We appreciate the audit undertaken by the Department of Justice (DO] or the

Department). Office of the inspector General (OIG) regarding the handling of sexual harassment
and misconduct allegations by the Department's law enforcement components. This review
examined the nature, frequency, reporting, investigation, and adjudication of such allegations in
the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Drug Enforcement
Administration (DEA); the Federal Bureau of investigation (FBI); and the United States
Marshals Service (USMS). The report makes eight recommendations to improve the law
enforcement components' disciplinary and security processes, four of which are directed to the
Department. We address these recommendations below, and concur with all four.

99

Recommendation No.5 to the Department of Justice: The Office of the Deputy Attorney
General (ODAG) should ensure that the Department's zero tolerance policy on sexual
harassment is enforced in the law enforcement components and that the components' tables of
offenses and penalties are complimentary and consistent with respect to sexual harassment.
Response: Concur. The Department will work with the law enforcement components to
ensure that the Department's zero tolerance policy on sexual harassment is enforced and
that the components' offense tables and penalties are complimentary and consistent with
respect to sexual harassment.
Recommendation No.6 to the Department of Justice: The ODAG should develop policy
explicitly prohibiting the solicitation of prostitutes in a foreign jurisdiction even if the conduct is
legal or tolerated, and ensure that all component offense tables include language prohibiting this
fonn of misconduct.

Response: Concur. The Department will develop policy guidance that communicates
the Department's expectations regarding the solicitation of prostitutes in foreign
jurisdictions even when the conduct is legal or tolerated, and ensure that all component
offense tables include language prohibiting this conduct. We expect that this guidance
will assist the ATF, DEA, FBI, and USMS in developing their own policies regarding the
solicitation of prostitutes in foreign jurisdictions.
Recommendation No.7 to the Department of Justice: All four law enforcement components,
in coordination with ODAG, should acquire and implement technology and establish procedures
to effectively preserve text messages and images for a reasonable period of time, and
components should make this infonnation available to misconduct investigators and, as
appropriate, for discovery purposes.
Response: Concu r. The Department is committed to ensuring the proper preservation of
electronic communications, especially when such communications implicate the
Government's legal discovery obligations. To this end, the Deputy Attorney General has
issued guidance to the four law enforcement components, in addition to all United States
Attorneys' Offices and the criminal litigating components, to ensure the proper
preservation and disclosure of electronic communications in Federal criminal cases.
While this policy requires the Department's law enforcement components to preserve all
potentially discoverable electronic communications, the Department will work with the
components to expand these preservation efforts by acquiring and implementing
technology and establishing procedures to effectively preserve text messages and images
for a reasonable period of time. The Department will also work with the components to
ensure that this information is availabJe for misconduct investigations and, as appropriate,
for discovery purposes.
Recommendation No.8 to the Department of Justice: All four law enforcement components,
in coordination with ODAG, should take concrete steps to acquire and implement technology to
-2-

100

be able to, as appropriate in the circumstances, proactively monitor text message and image data
for potential misconduct.
Response: Concur. As discussed above, the Department is committed to ensuring the
proper preservation of electronic communications. especially when such communications
implicate the Govenunent 's legal discovery obligations. The Department also
understands the potential value of these electronic communications to misconduct
investigations. To that end, the Department will take concrete steps to study the
feasibility of acquiring and implementing technology to be able to, as appropriate in the
circumstances, proactively monitor text message and image data for potential
misconduct.
cc:

Mark Giuliano, Federal Bureau of Investigation

Michele Leonhart, Drug Enforcement Administration
B. Todd Jones, Bureau of Alcohol , Tobacco, Firearms and Explosives
Stacia Hylton, United States Marshals Service

-3-

101

APPENDIX 8: OIG ANALYSIS OF THE OFFICE OF THE DEPUTY

ATTORNEY GENERALS RESPONSE

The Office of the Inspector General (OIG) provided a draft of this

report to the Office of the Deputy Attorney General (ODAG) for its
comment. The ODAGs response is included in Appendix 7 of this report.
The OIG analysis of the ODAGs response and actions necessary to close
the recommendations are discussed below.
Recommendation 5: The Office of the Deputy Attorney General (ODAG)
should ensure that the Departments zero tolerance policy on sexual
harassment is enforced in the law enforcement components and that the
components tables of offenses and penalties are complimentary and
consistent with respect to sexual harassment.
Status: Resolved.
ODAG Response: The Department concurred with this
recommendation and will work with the law enforcement components to
ensure that the Departments zero tolerance policy on sexual harassment
is enforced and that the components offense tables and penalties are
complimentary and consistent with respect to sexual harassment.
OIG Analysis: The ODAGs plan of action is responsive to our
recommendation. By June 30, 2015, please provide information
describing the enforcement of the Departments zero tolerance policy on
sexual harassment and demonstrating that the components tables of
offenses and penalties are complimentary and consistent with the policy.
Recommendation 6: The Office of the Deputy Attorney General (ODAG)
should develop policy explicitly prohibiting the solicitation of prostitutes
in a foreign jurisdiction even if the conduct is legal or tolerated, and
ensure that all component offense tables include language prohibiting
this form of misconduct.
Status: Resolved.
ODAG Response: The Department concurs with this
recommendation and will develop policy guidance that communicates the
Departments expectations regarding the solicitation of prostitutes in
foreign jurisdictions, even when the conduct is legal or tolerated, and
ensure that all component offense tables include language prohibiting
this conduct. The Department expects that this guidance will assist ATF,
the DEA, the FBI, and the USMS in developing their own policies
regarding the solicitation of prostitutes in foreign jurisdictions.
102

OIG Analysis: The ODAGs plan of action is responsive to our

recommendation. By June 30, 2015, please provide copies of the policy
guidance that communicates the Departments expectations regarding
the solicitation of prostitutes in foreign jurisdictions even when the
conduct is legal or tolerated. In addition, please provide documentation
showing that the components have incorporated this policy into their
offense tables.
Recommendation 7: All four law enforcement components, in
coordination with ODAG, should acquire and implement technology and
establish procedures to effectively preserve text messages and images for
a reasonable period of time, and components should make this
information available to misconduct investigators and, as appropriate, for
discovery purposes.
Status: Resolved.
ODAG Response: The ODAG concurred with this recommendation
and stated that it is committed to ensuring the proper preservation of
electronic communications, especially when such communications
implicate legal discovery obligations. To this end, the ODAG has issued
guidance to the four law enforcement components, the United States
Attorneys Offices, and the criminal litigating components, to ensure the
proper preservation and disclosure of electronic communications in
federal criminal cases.
In addition, the ODAG will work with the components to expand
their preservation efforts by acquiring and implementing technology and
establishing procedures to effectively preserve text messages and images
for a reasonable period of time. Further, the ODAG will work with the
components to ensure that this information is available for misconduct
investigations and, as appropriate, for discovery purposes.
OIG Analysis: The ODAGs plan of action is responsive to our
recommendation. By June 30, 2015, please provide a status update on
the ODAGs efforts to expand components preservation efforts by
acquiring and implementing technology and establishing procedures to
effectively preserve text messages and images for a reasonable period of
time. Further, please provide a status update regarding the ODAGs
work with the components to ensure that this information is available for
misconduct investigations and, as appropriate, for discovery purposes.
Recommendation 8: All four law enforcement components, in
coordination with ODAG, should take concrete steps to acquire and
implement technology to be able to, as appropriate in the circumstances,

103

proactively monitor text message and image data for potential

misconduct.
Status: Resolved.
ODAG Response: The ODAG concurred with this recommendation
and stated that it is committed to ensuring the proper preservation of
electronic communications, especially when such communications
implicate legal discovery obligations. The ODAG also understands the
potential value of these electronic communications to misconduct
investigations. To that end, the ODAG will take concrete steps to study
the feasibility of acquiring and implementing technology to be able to, as
appropriate in the circumstances, proactively monitor text message and
image data for potential misconduct.
OIG Analysis: The ODAGs plan of action is responsive to our
recommendation. By June 30, 2015, please provide a status update on
the ODAGs research on the feasibility of acquiring and implementing
technology to be able to, as appropriate in the circumstances, proactively
monitor text message and image data for potential misconduct.

104

APPENDIX 9: THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS

AND EXPLOSIVES RESPONSE TO THE DRAFT REPORT

u.s. Department or Justice

Bureau o f Alcohol, Tobacco,
Firearms a nd Explosives

I'I.\R 1 3201.

6OOOOO:ARP
8310

MEMORANDUM TO: Assistant Inspector General

Evaluations and Inspections Division
Office oflnspcctor General
FROM: Assistant Director
Office of Professional Responsibility and Security Operations
Bureau of Alcohol, Tobacco, Firearms IIlld Explosives
SUBJECT: Review of the Handling of Sexual Harassment and Misconduet
Alleptions by the Department's Law Enforcement Components

The Bureau of Alcohol, Tobacco, Fireanns and Explosives (ATF) appreciates the opportunity to
respond to the recommendations contained in the above cited report. We welcome the Office of
the Inspector General's (OIG) constructive comments and recomm endations on this matter.
RecommendatioR 1. All fou, law enforcement components should ensure that supervlso.,.
and managen report all aUqations of sexual misconduct and sexual harassment to
headquarters, and they should consIder ensuring compliance with this requirement by
Including it in their performance standards 50 as to subject supervisors and managen to
possible disclpllDe for railing to report allegations.
Response (Concur): ATF agrees with OIG on the importance of emphasizing and ensuring
compliance with the requirement for managers to report allegations of sexual harassment and
misconduct. To this end, A TF will issue a written reminder to all ATF employees about the
importance of reporting a llegations of misconduct, to include sexual misconduci. The notice will
remind employees thai failure 10 report misconduct will be investigated by the Internal Affairs
Division IUld reported to the Professional Review Board for possible discipline.
We have considered the suggestion of adding the reporting requirement to our petfonnance
standards, but have concluded this specific means ofreinforeing compliance would be
problematic. Perfonnance management systems in general arc not disciplinary systems; the
ovenotching goal of such systems is to recognize achievements and identify pcrfonnance
shortfalls. Employees who fail to meet a perfonnance standard arc usually provided with
recommendations for improvement, training opportunities, or other avenues to foster better
pcrfonnance - they are DQt $ubjcet to disciplinary action for any failure to pcrfonn to a given

105

standard. In addition, it would be diflicultto craft perfonnance criteria for this standard that
would effectively recognize different levels of performance or stand as an effective measure of
performance, i.e. whal would constitute outstanding perfonnance under this standard versus
merely effective or successful performance? How would managers be evaluated under this
criteria ifno allegations ofmiscondud occurred during the apptllisal period? Additionally, the
fact thai a supervisor or manager has failed to report misconduct generally does not come 10 light
until well after the fact. Given that performance management systems operate on an annual
basis, it is not elear how prior performance appraisals might be amended should an employee's
failure to meet this standard not be documented until two or three years after the appraisal period
has ended. Nevertheless, as noted above, ATF will use other means to reinforce the reporting
requirement.
Recommendation 2. ATF, DEA, and USMS should eosure Ibat aU oon-frivolous sexual
harassmeot aod sexual misconduct allegations are referred to their respecdve security
personnel to determine if the misconduct raises conccrns about the employee's continued
eligibility to hold a security clearance, and to determine whether the misconduct prflents
secnrity risks for the componenL
Responsc (Concnr): During the course of this review, A TF implemented new policy, effective
October 20, 2014, to require coordination between our Internal Affairs Division (lAD) and
Perwnnel Security Branch (PSB). Under the new policy, lAD is required to share all incident
reports with PSB at the time they arc generated. lAD is also required to share all reports of
investigation when they are delivered to the Professional Review Board. IfPSB determines that
risks are present, lAD is required to provide PSB with full access to the case file.
On October 31, 2014, ATF provided OIG with docwnentation of this new policy, which satisfies
the objective of the recommendation. As such, we respectfully request this recommendation be
closed.
Recommendation 3. The components should have aod foUow clear and consistent eriteria
for determlnio& whether an allegation sbould be investigated at headquarten or should be
referred back 10 the orieinaline office 10 be handled 85 a management maHer.
Response (Concur): ATF requires that all allegations of sexual misconduct be reported to lAD
immediately. lAD completes WI incident report that is reviewed by the OIG's investigations
division. IfOIG declines to investigate, the case is referred back to ATF. The allegation is then
reviewed by lAD managers and forwarded to the Assistant Director, Office of Professional
Responsibility and Security Operations with a rceomrncndation to have either lAD or
management investigate the allegation. Recommendations are based on the nature of the
allegation, totality of the circumstances, and potential applicable penalties. lAD's current policy
of evaluation has worked well and we recommend no further chWlges.
Recommendation 4. All four law eoforcement components should usc the offensc
cate&ories speelflcaUy designed 10 address sexual misconduct and sexual harassmenl, and
rev:lse their tables if tbey are inadequate or otherwise deler the use of such categories.

106

Response (Concur): ATF always uses the offense category from the ATF Guide to Offenses
and Penalties that is deemed to be the most appropriate for the case at hand. In some instances
an offense category that is not listed in the Guide may be used if no existing offense category is
deemed suitable. The selection of the offense category is based on many factors, includi ng most
significantly, the evidence that is available to prove the elements of each possible charge. The
provable offense category that is most appropriate to the case is used to propose disciplinary
action.
ATF will review its table of penalties and add categories for the solicitation of prostitutes,
inappropriate workplace relationships, and a general category for sexual misconduct in
accordance with any guidance issued by the Department.
Again, thank you for the opportunity to work with you on these matters and we hope we have
been responsive to your recommendations. If you have any questions, please contact Audit
Liaison Branch Chief, Adam Pallotto at 202-648-8706.

Michael Gleysteen

107

APPENDIX 10: OIG ANALYSIS OF THE BUREAU OF ALCOHOL,

TOBACCO, FIREARMS AND EXPLOSIVES RESPONSE

The Office of the Inspector General (OIG) provided a draft of this

report to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
for its comment. ATFs response is included in Appendix 9 of this report.
The OIG analysis of ATFs response and actions necessary to close the
recommendations are discussed below.
Recommendation 1: All four law enforcement components should
ensure that supervisors and managers report all allegations of sexual
misconduct and sexual harassment to headquarters, and they should
consider ensuring compliance with this requirement by including it in
their performance standards so as to subject supervisors and managers
to possible discipline for failing to report allegations.
Status: Resolved.
ATF Response: The ATF concurred with this recommendation
and agreed on the importance of emphasizing and ensuring compliance
with the requirement for managers to report allegations of sexual
harassment and misconduct. To that end, ATF will issue a reminder to
all ATF employees about the importance of reporting misconduct
allegations, to include sexual misconduct. The notice will remind
employees that failure to report misconduct will be investigated by the
Internal Affairs Division and reported to the Professional Review Board
for possible discipline.
ATF also stated that it had considered the suggestion to add the
reporting requirements to its performance standards but has concluded
that this specific means of reinforcing compliance would be problematic.
ATF stated that performance management systems in general are not
disciplinary systems and that the overarching goal is to recognize
achievement and identify performance shortfalls. Further, it would be
difficult to craft performance criteria that would effectively recognize
different levels of performance or stand as an effective measure of
performance. Finally, ATF stated that given that performance
management systems operate on an annual basis, it is unclear how prior
performance appraisals might be amended in case an employees failure
to meet this standard is not documented until after the appraisal period
has ended. Nevertheless, ATF stated that it will use other means to
reinforce the reporting requirement.
OIG Analysis: ATFs actions are responsive to this
recommendation. By June 30, 2015, please provide copies of the notice
108

reminding employees about reporting allegations of misconduct and that

failure to report the misconduct could result in discipline. In addition,
please provide information about any other means that ATF will use to
reinforce the reporting requirement.
Recommendation 2: ATF, DEA, and USMS should ensure that all nonfrivolous sexual harassment and sexual misconduct allegations are
referred to their respective security personnel to determine if the
misconduct raises concerns about the employees continued eligibility to
hold a security clearance, and to determine whether the misconduct
presents security risks for the component.
Status: Closed.
ATF Response: ATF concurred with this recommendation and
stated that on October 20, 2014, it implemented a new policy requiring
coordination between the Internal Affairs Division (IAD) and the
Personnel Security Branch (PSB). Under this policy, the IAD is required
to share all incident reports with the PSB at the time they are generated.
Further, the IAD is required to share all reports of investigation when
they are delivered to the Professional Review Board. If the PSB
determines risks are present, the IAD is required to provide the PSB with
full access to the case file. The ATF provided the OIG with a copy of the
policy.
OIG Analysis: ATFs actions are responsive to this
recommendation. We confirmed with the PSB that they are receiving the
necessary information to determine whether the misconduct cases
present security risks for the ATF. This recommendation is closed.
Recommendation 3: The components should have and follow clear and
consistent criteria for determining whether an allegation should be
investigated at headquarters or should be referred back to the originating
office to be handled as a management matter.
Status: Resolved.
ATF Response: ATF concurred with this recommendation and
stated that it requires that all allegations of sexual misconduct be
reported to the IAD immediately. The IAD completes an incident report
that is reviewed by the OIGs Investigations Division. If the OIG declines
to investigate, the case is referred back to ATF. The allegation is
reviewed by IAD managers and forwarded to the Assistant Director,
Office of Professional Responsibility and Security Operations, with a
recommendation to have either the IAD or management investigate the
allegation. Recommendations are based on the nature of the allegation,
109

totality of the circumstances, and potential applicable penalties. The

IADs current policy of evaluation has worked well, and ATF recommends
no further changes.
On March 16, 2015, ATF provided additional information stating
that it is ATFs current policy for the IAD to investigate credible
allegations of sexual misconduct and sexual harassment. ATF noted that
it plans to memorialize this policy into the IADs order that is currently
being drafted.
OIG Analysis: ATFs actions are responsive to this
recommendation. By June 30, 2015, please provide a copy of the new
IAD order memorializing ATFs policy to have IAD investigate credible
allegations of sexual misconduct and sexual harassment.
Recommendation 4: All four law enforcement components should use
the offense categories specifically designed to address sexual misconduct
and sexual harassment, and revise their tables if they are inadequate or
otherwise deter the use of such categories.
Status: Resolved.
ATF Response: ATF concurred with this recommendation and
stated that it always used the offense category from the ATF Guide to
Offenses and Penalties (Guide) that is deemed to be the most appropriate
for the case at hand. In some instances, an offense category that is not
listed in the guide may be used if no existing offense category is deemed
suitable. The selection of the offense category is based on many factors,
including, most significantly, the evidence that is available to prove the
elements of each possible charge. The approvable offense category that
is most appropriate is used to propose disciplinary action. Further, ATF
will review its table of penalties and add categories for the solicitation of
prostitutes, inappropriate workplace relationships, and a general
category for sexual misconduct in accordance with any guidance issued
by the Department.
OIG Analysis: ATFs actions are responsive to this
recommendation. By June 30, 2015, please provide information about
any changes to the table of penalties related to sexual misconduct. The
OIG believes that ATF should construct its offense table in such a way
that does not require using offense categories that are not included in
ATFs table of penalties.
Recommendation 7: All four law enforcement components, in
coordination with ODAG, should acquire and implement technology and
establish procedures to effectively preserve text messages and images for
110

a reasonable period of time, and components should make this

information available to misconduct investigators and, as appropriate, for
discovery purposes.
Status: Closed.
ATF Response: ATF deferred to the ODAGs response to this
recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for ATF.
Recommendation 8: All four law enforcement components, in
coordination with ODAG, should take concrete steps to acquire and
implement technology to be able to, as appropriate in the circumstances,
proactively monitor text message and image data for potential
misconduct.
Status: Closed.
ATF Response: The ATF deferred to the ODAGs response to this
recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for ATF.

111

APPENDIX 11: THE DRUG ENFORCEMENT ADMINISTRATIONS

RESPONSE TO THE DRAFT REPORT

U. S. Department of Justice
Drug Enforcement Administration

www.dea.gov

Washington. D.C. 20537

MAR 1 3 2015
MEMORANDUM
TO :

Nina S. Pe ll etier

Assislant Inspector General

Evaluations and Inspections
Office of the Inspector Genera l
FROM:

~~~
~
Acting Deputy Chief Inspector

Office of In specti ons

SUBJECT:DEA 's Response 10 the O IG Draft Report: "The Handlin g of Sexual Harassment and
Misconduct Allegations by the Departmellf 's Law E1lforcement Components"
The Drug Enforcement Admi nistration (DEA ) has rev iewed the Department of J ustice (DOJ)
Office of the In spector General 's (O IG) Draft Report entit led, The Halldlillg of Sexual Harassmenr
and Misconduct Allegatiolls by fh e Departmenr 's Law Enforcement Componems." DEA
acknowledges D IG 's effort s in conducting a review to assess how the DOl' s four law enforcemem
components respond to sex ual mi sconduct and hara ssment allegation s made against their employees.
T he OIG indicated in its report that in 96% of DEA cases reviewed for this evaluat ion. DEA 's
Office of Profess ional Res pon sibility (OPR) fu ll y investi gated all reported allegations of mi sconduct
and did not refer matters back to local supervi sors unless the matter reported was clearly a
managemem or perfonnance-related iss ue. However, DEA noted that O IG focused the DEA portion
of thi s report on the 3% of cases that , in the ir opin ion. DEA could have investigated the allegations
more thoroughly.
The investigation o f allegat ions of mi sconduct is the primary mi ss ion of the OPR and OPR
inspectors are afforded spec ifi c authori ties to execu te thi s miss ion. DEA has establi shed criteria for
the intake and investigations o f allegations and investigates all mi scond uct allegation s. DEA did a
second review o f the cases that O IG reviewed to determine if OPR had appropriately and thoroughly
investi gated these allegations. It was found through thi s review that the investigations were
investigated properly through DEA 's disc ip linary process for re lated mi sconduct .

112

Nina S. Pelletier, Assistant inspeclOr General

Page 2

The OIG makes eight recommendations in the report in which six recommend ations are directed
to the components. Below are DEA's responses to the recommendations.
I.

All four law enforcement components should ensure th at supervisors and manage rs
report all allegations of sex ual misconduct and sexu al harassment to headqu arters, and
they should consider ensuring compliance with this requirement by including il in their
performance sta nda rds so as to subject supervisors and managers to possible discipline
for failing to report allegations.

oEA Response
DEA concurs with the reco mmendat ion. On October 22. 20 14. the DEA AdministralOr issued
a memorandum en titled "Cont/uct of DEA Employees." This memorandum was intended to
address specific areas of misconduct where the violations can seri ously impact the integrity of
DEA. Such areas incl ude discussion of Off-Duty Misconduct: Failu re to Exercise Proper
Supervis ion: Sex ual Harassment. Discrimination. and Retaliation: Improper Relat ionships with
Cooperating Indi viduals. Sources of Informati on. and others.
DEA believes this memorandum ensures that supervisors and managers, as well as employees
are aware of their res ponsibi lities concern ing misconduct and that appropriate measures
through the discipl inary process wi ll be taken once a report of misconduct is received.
In addi tion, all DEA emp loyees are req uired to certify on an annu al basis that they have
reviewed and understand the DEA Standard s of Conduct. DEA 's Standa rds of Cond uci ensure
that employees understand that they are held to a high stand ard of honesty and integrity and
any lapses fro m that standard can destroy the future effecti veness of emp loyees and harm
DEA 's credibility with the publi c. Not ad hering to the Standards of Conduct can result in
disciplinary actions for DEA employees.
Based upon thi s informati on. DEA req uests closure of this recommendation.
2.

ATF, DEA, and USMS should ensure that all non-frivolous sexual ha rassment and sexual
misconduct allegations are referred to th eir respecti ve security personnel to determin e if
the misconduct raises conce rns about th e employee's continued eligibilit y Lo hold a
security clearance, a nd to determine wh ether th e misconduct presents security risks for
th e component.
OEA Response

DEA concurs with the reco mmendation. On November 17,20 14. DEA iss ued a memorandu m
and implemented new procedu res 10 ensure systematic coordination between OPR and the
Office of Security Programs (IS) when misconduct allegations are such thal an assess ment to
determine whether an employee's security clearance should be maintained.
OPR aJso added an additional bloc k of training to the OPR Orien tation training course 10

113

Page 3

Nina S. Pelletier, Assistant Inspector General

ensure that all OPR personnel are full y aware of the Adjudicative Guidelines and when 10
report a security cleara nce issue 10 IS.
OPR also took further steps and added an element in th eir quarterly Comp lain t/S tatistics
(COMP/STAT) meetings. Thi s new element incorporates makin g speci fic consideration of
each in vesti gation 10 determine if notification 10 IS regardi ng an ongoing in vesti gation is
warranted.
Based on thi s information, DEA req uests cl osure of thi s recommendation.

3.

The components should have and follow clear and consistent criteria for determining
whether an allegation should be investigated at headquarters or should be referred back
to the originating office to be handled as a management maUer.
DEA Response
DEA concurs with the recom mend ation. OIG acknow ledged on page 34 of thi s report th at
DEA has establi shed clear and consistent criteria 10 determine whether an allegat ion should be
investigated at headquarters or referred back to the originatin g offi ce 10 handle as a
management matter. The DEA aPR is respon sible for the intake and investi gati on o f all

misco nduct allegati ons in which the DEA Chief Inspector (IG ) and the OPR Deput y Ch ief
Inspector (DCl), delegate, ass ign, direct, coord inate, and review for sufficiency all
investi gati ons of empl oyee mi sconduct. Matters concerning allegations of crim inal conduct
and egregious empl oyee behavior which subvert the mi ss ion of the Agency are in ves ti gated by
aPR in all cases.
Based on thi s in form ation, DEA reques ts closure of this recommendation.

4.

All four law enforcement components should use the offense categories specifically
designed to address sex ual misconduct and sexual harassment, and revise their tables if
they are inadequate or otherwise deter the use of such categories.
DEA Response
DEA conc urs with th e recommendati on. The DEA Di sci plinary Offen ses and Penahi es Guide
are intended 10 prov ide informati on and guidance concern in g the range of penalty thaL may
resu lt from a particul ar type of mi sconduct. The Guide is nOI intended to set forth specific
charges but 10 ensure that employees are charged consistently as DEA ca n onl y charge the
mi sconduct it can prove by a preponderance of the evidence.
Therefore. DEA will exa mine and eva luate the offense categori es specifically designed 10
address sex ual mi sconduct and sex ual harass ment. and rev ise the table if they are inadequate or
otherwise deter the usc of such mi sconduc t categories.

114

Ni na S. Pelletier, Assistant Inspector General

7.

Page 4

All four law enforcement components, in coordination with ODAG, should acquire and
implement technology and establish procedures to effectively preserve text messages and
images for a reasonable period of time, and components should make this information
available to misconduct investigators and, as appropriate, for discovery purposes.

DEA Response
The DEA will defer to the Office of the Deputy Attorney General 's (ODAG) response to this
recommendation.

Based on the ODAG 's res ponse, DEA requests closure of thi s recommendation.
8.

All four law enforcement components, in coordination with ODAG, should take concrete
steps to acquire and implement technology 10 be able to, as appropriate in the
circumstances, proactively monitor text message and image data for potential
misconduct.

DEA Response
The DEA will defer to the ODAG's response to this recommendation.
Based on the ODAG's response, DEA requests closure of this recommendation.

If you have any questions regarding this response, please contact the Audit Liai son Team, on

202-307-8200.

115

APPENDIX 12: OIG ANALYSIS OF THE DRUG ENFORCEMENT

ADMINISTRATIONS RESPONSE

The Office of the Inspector General (OIG) provided a draft of this

report to the Drug Enforcement Administration (DEA) for its comment.
The DEAs response is included in Appendix 11 of this report. The OIG
analysis of the DEAs response and actions necessary to close the
recommendations are discussed below.
The DEA provided additional comments regarding the OIGs
conclusion that there were instances where the OIG believed that the
DEA could have investigated some allegations more thoroughly. The
DEA stated that the OIG indicated that in 96 percent of the DEA cases
reviewed, the DEA Office of Professional Responsibility (OPR) fully
investigated all reported allegations of misconduct and did not refer the
matters back to local supervisors unless the matter was clearly a
management or performance-related issue. The DEA stated that
investigation of misconduct allegations is the primary mission of the OPR
and its inspectors are afforded specific authorities to execute this
mission. Further, DEA has established criteria for the intake and
investigation of misconduct allegations and investigates all of these
allegations. The DEA stated that it performed a second review of the
cases cited by the OIG to determine if the OPR appropriately and
thoroughly investigated the allegations. The OPR found through its
second review that the allegations were investigated properly through the
DEAs disciplinary process for related misconduct.
As noted in the report, the OIG recognizes that the DEA fully
investigated most allegations of sexual misconduct. However, two of the
allegations we believe were not fully investigated involved the solicitation
of prostitutes. As a result, we believe that the lack of a full investigation
was noteworthy.
Based on the OPRs comments and additional analysis, the OIG
again reviewed the cases. However, we still conclude that based on the
information contained in the case files, interviews with DEA personnel,
and additional information provided by the OPR, the cases were not fully
investigated and the matters were closed prematurely.
Recommendation 1: All four law enforcement components should
ensure that supervisors and managers report all allegations of sexual
misconduct and sexual harassment to headquarters, and they should
consider ensuring compliance with this requirement by including it in
their performance standards so as to subject supervisors and managers
to possible discipline for failing to report allegations.
116

Status: Resolved.
DEA Response: The DEA concurred with the recommendation
and stated that on October 22, 2014, the DEA Administrator issued a
memorandum entitled Conduct of DEA Employees. The intent of the
memorandum was to address specific areas of misconduct violations
which can seriously impact DEAs integrity. The areas discussed include
off-duty misconduct; failure to exercise proper supervision; sexual
harassment, discrimination, and retaliation; and improper relationships
with cooperating individuals, sources of information, and others. DEA
provided a copy of the October 22, 2014, memorandum. DEA believes
that this memorandum will ensure that supervisors, managers, and
employees are aware of their responsibilities concerning misconduct and
that appropriate measures will be taken once a report is received.
In addition, all DEA employees are required to annually certify that
they have reviewed and understood the DEA Standards of Conduct. DEA
stated that its Standards of Conduct ensure that employees understand
that they are held to a high standard of honesty and integrity. Any
lapses from that standard could destroy the future effectiveness of DEA
employees and harm DEAs credibility with the public. Furthermore, not
adhering to the Standards of Conduct can result in disciplinary actions
for DEA employees.
OIG Analysis: The DEAs actions are responsive to this
recommendation. By June 30, 2015, please provide a copy of the annual
certification form completed by DEA employees indicating that they have
reviewed and understood the DEA Standards of Conduct. In addition,
please provide copies of any other actions DEA has taken to ensure that
managers and supervisors report all allegations of sexual misconduct
and sexual harassment to DEA headquarters and to reiterate that they
are subject to possible discipline for failing to report these types of
allegations.
Recommendation 2: ATF, DEA, and USMS should ensure that all nonfrivolous sexual harassment and sexual misconduct allegations are
referred to their respective security personnel to determine if the
misconduct raises concerns about the employees continued eligibility to
hold a security clearance, and to determine whether the misconduct
presents security risks for the component.
Status: Resolved.
DEA Response: The DEA concurred with this recommendation.
On November 17, 2014, the DEA issued a memorandum and
implemented new procedures to ensure systematic coordination between
117

the Office of Professional Responsibility (OPR) and the Office of Security

Programs (IS) when misconduct allegations are such that it warrants an
assessment to determine whether an employees security clearance
should be maintained. The DEA provided a copy of the November 17,
2014, memorandum. In addition, the OPR added a block of training to
the OPR Orientation training course to ensure that OPR personnel are
fully aware of the Adjudicative Guidelines and when to report a security
clearance issue to IS. Further, the OPR took steps and added an element
to its quarterly Complaint/Statistics (COMPT/STAT) meetings
incorporating specific consideration of each investigation to determine if
whether notification to the IS regarding an investigation is warranted.
OIG Analysis: The DEAs actions are responsive to this
recommendation. By June 30, 2015, please provide a description of the
new procedures in place to ensure the systematic coordination between
the OPR and the IS regarding assessment of security clearances involving
allegations of misconduct. In addition, please provide a copy of the
training materials used for the OPR training course and an example of
how the quarterly COMP/STAT meetings consider whether an ongoing
investigation requires notification to the IS.
Recommendation 3: The components should have and follow clear and
consistent criteria for determining whether an allegation should be
investigated at headquarters or should be referred back to the originating
office to be handled as a management matter.
Status: Closed.
DEA Response: The DEA concurred with the recommendation.
The DEA stated that in the report, the OIG acknowledged that DEA had
established clear and consistent criteria to determine whether an
allegation should be investigated at headquarters or referred back to the
originating office to handle as a management matter. The DEA OPR is
responsible for the intake and investigation of all misconduct allegations,
and the DEA Chief Inspector and the OPR Deputy Chief Inspector
delegate, assign, direct, coordinate, and review for sufficiency all
investigations of employee misconduct. Matters concerning allegations of
criminal conduct and egregious employee behavior that subvert the DEA
mission are investigated by the OPR in all cases.
OIG Analysis: The DEAs actions are responsive to this
recommendation. This recommendation is closed.
Recommendation 4: All four law enforcement components should use
the offense categories specifically designed to address sexual misconduct

118

and sexual harassment, and revise their tables if they are inadequate or
otherwise deter the use of such categories.
Status: Resolved.
DEA Response: The DEA concurred with this recommendation
and stated that the DEA Disciplinary Offenses and Penalties Guide
(Guide) is intended to provide information and guidance about the range
of penalties that may result from a particular type of misconduct. The
Guide is not intended to set forth specific charges, but to ensure that
employees are charged consistently, as DEA can charge the misconduct
only if it can prove by a preponderance of the evidence. Therefore, the
DEA will examine and evaluate the offense categories specifically
designed to address sexual misconduct and sexual harassment, and
revise the tables if they are inadequate or otherwise deter the use of such
misconduct categories.
OIG Analysis: The DEAs actions are responsive to this
recommendation. By June 30, 2015, please provide a status on whether
the DEA has made any revisions to its offense categories related to
sexual misconduct and sexual harassment to address any inadequacies
or obstacles to using the misconduct category. In addition, please
provide information indicating that specific sexual misconduct and
sexual harassment charges are being used as appropriate.
Recommendation 7: All four law enforcement components, in
coordination with ODAG, should acquire and implement technology and
establish procedures to effectively preserve text messages and images for
a reasonable period of time, and components should make this
information available to misconduct investigators and, as appropriate, for
discovery purposes.
Status: Closed.
DEA Response: The DEA deferred to the ODAGs response to this
recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for DEA.
Recommendation 8: All four law enforcement components, in
coordination with ODAG, should take concrete steps to acquire and
implement technology to be able to, as appropriate in the circumstances,
proactively monitor text message and image data for potential
misconduct.
119

Status: Closed.
DEA Response: The DEA deferred to the ODAGs response to this
recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for DEA.

120

APPENDIX 13: THE FEDERAL BUREAU OF INVESTIGATIONS

RESPONSE TO THE DRAFT REPORT

.,

U.S. Department of Justice

Federal Bureau of Investigation

Washington, D. C. 20535-0001
March 13, 2015

The Honorable Michael E. Horowitz

Inspector General
Office of the Inspector General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Mr. Horowitz:
The Federal Bureau of Investigation (FBI) appreciates the opportunity to review and
respond to your office's report entitled, The Handling o/Sexual Harassment and Misconduct
Allegations by the Department 's Law Enforcement Components. "

We are pleased you found with respect to the coordination between internal affairs
offices and the offices that ensure employees meet the requirements to hold security clearances,
the FBI has taken a "better approach to addressing potential security issues," and "refers all
misconduct allegations" to their Security Division. Notably, you detennined this approach to be
a "best practice" amongst the components.
We appreciate your insights into improving the handling of sexual harassment and
misconduct allegations. In that regard, we concur with each of your recommendations directed
towards the FBI.
Should you have any questions, please feel free to contact me. We greatly appreciate the
professionalism of your audit staff throughout this matter.
Sincerely,

Nancy McNamara
Assistant Director
Inspection Division

121

The Handling of Sexual Harass ment and Mis conduct Allegations by the
Department's Law Enforcement Compone nts
FBI Responses to Recommendations
1. All four la w e nforce m e nt compone n ts s hould e nsure that supervisors
and ma nagers report all allegations of sexual m isconduct and sexual
haraasm e nt to headquarters, a nd they ahould cons id e r e naurlng
c ompliance with t his r e quirement by Including it in the ir performance
atandard s so as to subje ct s u pervisors and m a nage r s to posslble dlscipllne
for failing to r e port alle gations,
FBI Response: Concur The FBI will remind all su pervisors and managers tJlal
a ll allegations of sexual misconducl and sexual hamssmenl shou ld be reported
t.o headq uarters. To ensure complianre, the FBI will also consider whether this
requirement should be included in performance standards so as t.o subject
supelVisors and managers t.o possible discipline for failing to report allegations.
3, The c ompone nts s ho\dd have and follow cle ar and cou.sistent criteria for
d e t e rmining whe the r a ll. a llegation s h o uld be inveatillte d a t h eadquarters
or s hould be r e fe lTe d back to the originating omce to be handle d as a
mana g e m e nt m a tte r,
FBI R esponse: Concur The FBI will remind all employees Witilin the ln lemal

Investigation s Section that w e FBI's criteria regardi ng the opening o f

investigations at headquarters must be adhered to when evaluati ng whether an
a llegation shoukl be investigated at headquarters or referred back to Ule
originating office t.o be hand led as a managemenl maltef.
4. All four la w e nforce m e nt compone n ts s hould u se the offe n se eate gorles
s pecific ally de signe d to add ress sexual m isconduct and sexual harassment,
a nd r evise the ir t ables If the y are inade qua t e or othe rwise d e t e r the u se of
suc h c ate gories.
FBI Res ponse: Concur The FBI will usc the offe nse categories specifieally
des igned to address sexual miscond uc t and sexual harass ment as a llllrUllriate
under the totality of the factual circumstances that present in each in stance.

FBI eoneurs with ODAG r esponses r e : 17 and ' 8.

122

APPENDIX 14: OIG ANALYSIS OF THE FEDERAL BUREAU

OF INVESTIGATIONS RESPONSE

The Office of the Inspector General (OIG) provided a draft of this

report to the Federal Bureau of Investigation (FBI) for its comment. The
FBIs response is included in Appendix 13 of this report. The OIG
analysis of the FBIs response and actions necessary to close the
recommendations are discussed below.
Recommendation 1: All four law enforcement components should
ensure that supervisors and managers report all allegations of sexual
misconduct and sexual harassment to headquarters, and they should
consider ensuring compliance with this requirement by including it in
their performance standards so as to subject supervisors and managers
to possible discipline for failing to report allegations.
Status: Resolved.
FBI Response: The FBI concurred with this recommendation and
stated that the FBI will remind all supervisors and managers that all
allegations of sexual misconduct and sexual harassment should be
reported to headquarters. To ensure compliance, the FBI will also
consider whether the requirement should be included in performance
standards so as to subject supervisors and managers to possible
discipline for failing to report allegations.
OIG Analysis: The FBIs actions are responsive to this
recommendation. By June 30, 2015, please provide a status report on
how the FBI will remind all supervisors and managers that all allegations
of sexual misconduct and sexual harassment should be reported to
headquarters. Also, please provide a status report as to whether the FBI
has included a requirement in the performance standards of supervisors
and managers about possible discipline for failing to report allegations.
Recommendation 3: The components should have and follow clear and
consistent criteria for determining whether an allegation should be
investigated at headquarters or should be referred back to the originating
office to be handled as a management matter.
Status: Resolved.
FBI Response: The FBI concurred with this recommendation and
stated that it will remind all employees within the Internal Investigations
Section that the FBIs criteria regarding the opening of investigations at
123

headquarters must be adhered to when evaluating whether an allegation

should be investigated at headquarters or referred back to the originating
office to be handled as a management matter.
OIG Analysis: The FBIs actions are responsive to the
recommendation. By June 30, 2015, please provide a status report on
how the FBI will remind Internal Investigations Section employees about
adhering to the FBIs criteria on evaluating whether an allegation should
be investigated at headquarters or referred back to the originating office
to be handled as a management matter.
Recommendation 4: All four law enforcement components should use
the offense categories specifically designed to address sexual misconduct
and sexual harassment, and revise their tables if they are inadequate or
otherwise deter the use of such categories.
Status: Resolved.
FBI Response: The FBI concurred with this recommendation and
stated that the FBI will use the offense categories specifically designed to
address sexual misconduct and sexual harassment as appropriate under
the totality of the factual circumstances present in each instance.
OIG Analysis: The FBIs actions are responsive to this
recommendation. By June 30, 2015, please provide information and
data on the use of the offense categories specifically designed to address
sexual misconduct and sexual harassment.
Recommendation 7: All four law enforcement components, in
coordination with ODAG, should acquire and implement technology and
establish procedures to effectively preserve text messages and images for
a reasonable period of time, and components should make this
information available to misconduct investigators and, as appropriate, for
discovery purposes.
Status: Closed.
FBI Response: The FBI concurred and deferred to the ODAGs
response to this recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for FBI.
Recommendation 8: All four law enforcement components, in
coordination with ODAG, should take concrete steps to acquire and
implement technology to be able to, as appropriate in the circumstances,
124

proactively monitor text message and image data for potential

misconduct.
Status: Closed.
FBI Response: The FBI concurred and deferred to the ODAGs
response for this recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for FBI.

125

APPENDIX 15: THE UNITED STATES MARSHALS SERVICES

RESPONSE TO THE DRAFT REPORT

U.S. Department of Justice

Uniled Sinies Marshals Service

Office of the Director

Wasliing/oll. DC 20530/{)()()

March 16.2015

MEMORANDUM TO:

FRO~~

Nina S. Pelletier
Assistant Inspector General
Evaluation and inspe<:tions Division
Office of the Inspe<:tor General

David Ha~low .?l fbJ.J 0

lV-- Deputy D1 rector ~ ( V~_

SUBJ ECT:

Response to Draft Audil Report: Thl: Handling o/Sexual

HarasSlllellllllld Mi.Ycolldlll/ AI/ega/ions by /he Dcparllllell/ .~. Law
1I/orCl:lllcll/ COlllf)(}lIel1/)', Assignment No. A20l3004

This is in response to correspondence from the Office of the inspe<:tor General (O[G)
requesting comment on the recommendations ao;sociated with the subject draft audit report.
Actions planned by USMS with respcctto DIG's recommendations to the DOJ
components are outlined in the allaehed response.
Should you have any questions or concerns regarding this response, please contact
Isabel Howell. Audit Liaison, at 2023079744.
Attachment
cc:

Richard Theis
Director, Audit Liaison Group
Intern:;!] Review and Ev:;!lualion Office
Justice Management Division
Isabel Howell
External Audit Liaison
United States Marshals Service

126

USMS Response to OIG Draft Report

The HandliDg ofSuual Hanssment and Misconduct Allegations hy the
Department's Law Eaforcemeat Componeats WorkiDg in Foreign Countries
Assignment No. A-I013-004
Rerommendation 1: All four law enforcement components should ensure that supervisors
and maDagers report all allegations of se:lual misconduct and sexual haraument to
headquarters, aDd they should consider ensuring compliaDce with this requirement by
including it in their performance standards so as to subject supervisors and managers to
posslhle discipliDe for failing to report allegations.
Response (Concur): Existing USMS policy requires mandatory reporting of employee
misconduct. The Office of Professional Responsibility (OPR) will review and modify policy, as
necessary, to ensure policy adequately encompasses sexual misconduct/sexual harassment.
USMS currently enforces compliance through the performance standards of supervisors and
managers. Under the performance element " Accountability for DiversitylPeopleIWorkforce,"
managers are required to take "appropriate action to address promptly any misconduct to include
allegations of harassment by employees."
Recommeadadon 2: ATF, DEA. and USMS should eDsure that aU non-friyolous SeJ:ual
haras.sment and seIual misconduct allegations are referred to tbeir respecfiYe surity
penonnelto determine if the misconduct raises concerns about the employee's continued
eligibility to bold a security clearance, and to determiDe whether the misconduct presents
security risks for tbe compoaent.
Response (Concur): OPR currently refers ali non-frivolous, substantiated allegations to the
Tactical Operations Division (TOO) Office ofSccurity Programs for appropriate review. OPR
will review and modify policy, as necessary, to ensure policy and procedure adequately
encompasses sexual misconduct/sexual harassment allegation referrals.
Rewmmendation 3: The compoDents should han and follow clear and consistent criteria
for determining whether an allegation should be investigated at beadquarters or should be
referred back to the originating office to be bandied as a management matter.
Response (Concur): OPR will review and modify policy, as necessary, to ensure policy outlines
the criteria used when making management referrals.
Recommendation 4: All four law enforcement components should use the offense
categories specifically designed to address sexual miscoaduct aad sexual barassment, and
revise their tables iftbey are inadequate or otberwise deter tbe use of sucb categories.
Response (Concur): USMS concurs without further comment at this time.

127

Recommendation 7: All four law enforcement componeno, in coordination wltb ODAG,

3bould acquire and implement teebnology and establisb procedures to effeetively preserve
tut masages and images for a reasonable period of time, and components should make
tbis iaformarion available to misconduct investigaton a ud, as appropriate, for discovery
purpoKS.
Response (Concur): The USMS currently preserves message content, but is Wl8ble to preserve
images. Per the response from the Office of the Deputy Attorney General (ODAG), we wilt
work to implement cost-effective technological solutions developed by the Department to meet
this need.
RecommendarioD 8: All four law enforcement componeno, in coordination with ODAG,
should take concrete steps to acquire and implemeat teehnology to be able to, as
appropriate ill tbe circumstances, proactively monitor tel.t message and image data for
po~tialmisconducL

Response (Concur): The USMS is currently wtable to proactively monitor text messages sent by
employees. Due to the nature of our mission, a part of which involves investigating sex
offenders. current technology would produce many false positive results. Per the response from
ODAG, however, we will work with the Departrnentto study the feasibility of acquiring and
implementing cost-effective technology to be able to, as appropriate, proactively monitor text
message and image data for potential misconduct.

128

APPENDIX 16: OIG ANALYSIS OF THE UNITED STATES

MARSHALS SERVICES RESPONSE

The Office of the Inspector General (OIG) provided a draft of this

report to the United States Marshals Service (USMS) for its comment.
USMSs response is included in Appendix 15 of this report. The OIG
analysis of the USMSs response and actions necessary to close the
recommendations are discussed below.
Recommendation 1: All four law enforcement components should
ensure that supervisors and managers report all allegations of sexual
misconduct and sexual harassment to headquarters, and they should
consider ensuring compliance with this requirement by including it in
their performance standards so as to subject supervisors and managers
to possible discipline for failing to report allegations.
Status: Resolved.
USMS Response: The USMS concurred with this recommendation
and stated that existing USMS policy requires mandatory reporting of
employee misconduct. The Office of Professional Responsibility (OPR)
will review and modify policy as necessary to ensure the policy
adequately encompasses sexual misconduct and sexual harassment.
USMS also stated that it currently enforces compliance through the
performance standards of supervisors and managers. Under the
performance element Accountability for Diversity/People/Workforce,
managers are required to take appropriate action to address promptly
any misconduct to include allegations of harassment by employees.
OIG Analysis: The USMSs actions are responsive to this
recommendation. By June 30, 2015, please provide copies of the USMS
policy requiring mandatory reporting of employee misconduct and any
modifications of this policy. Please also provide copies of performance
standards for supervisors and managers, requiring that they take
appropriate action to address promptly any misconduct, to include
allegations of harassment by employees.
Recommendation 2: ATF, DEA, and USMS should ensure that all nonfrivolous sexual harassment and sexual misconduct allegations are
referred to their respective security personnel to determine if the
misconduct raises concerns about the employees continued eligibility to
hold a security clearance, and to determine whether the misconduct
presents security risks for the component.
129

Status: Resolved.
USMS Response: The USMS concurred with the recommendation
and stated that it currently refers all non-frivolous, substantiated
allegations to the Tactical Operations Division (TOD) Office of Security
Programs for appropriate review. OPR will review and modify policy, as
necessary, to ensure policy and procedure adequately encompass sexual
misconduct and sexual harassment allegation referrals.
OIG Analysis: The USMSs actions are responsive to this
recommendation. By June 30, 2015, please provide copies of the USMS
policy on referring non-frivolous, substantiated allegations and any
modifications to the policy to ensure that USMS policy and procedure
adequately encompass sexual misconduct and sexual harassment
allegation referrals.
Recommendation 3: The components should have and follow clear and
consistent criteria for determining whether an allegation should be
investigated at headquarters or should be referred back to the originating
office to be handled as a management matter.
Status: Resolved.
USMS Response: The USMS concurred with the recommendation
and stated that it will review and modify policy, as necessary, to ensure
policy outlines the criteria used when making management referrals.
OIG Analysis: The USMSs actions are responsive to this
recommendation. By June 30, 2015, please provide copies of the
USMSs policy, and any revisions to this policy, on determining whether
an allegation should be investigated and the criteria used when making
management referrals.
Recommendation 4: All four law enforcement components should use
the offense categories specifically designed to address sexual misconduct
and sexual harassment, and revise their tables if they are inadequate or
otherwise deter the use of such categories.
Status: Resolved.
USMS Response: The USMS concurred with this
recommendation. On March 17, 2015, the USMS provided additional
information stating that the USMS will endeavor to charge these offenses
using the specific categories in its existing Table of Offenses and
Penalties. The USMS will also review its Table of Offenses and Penalties
130

to determine its adequacy for addressing specific types of sexual

misconduct.
OIG Analysis: The USMSs actions are responsive to this
recommendation. By June 30, 2015, please provide information on the
USMSs review of its Table of Offenses and Penalties to determine its
adequacy for addressing specific types of sexual misconduct.
Recommendation 7: All four law enforcement components, in
coordination with ODAG, should acquire and implement technology and
establish procedures to effectively preserve text messages and images for
a reasonable period of time, and components should make this
information available to misconduct investigators and, as appropriate, for
discovery purposes.
Status: Closed.
FBI Response: The USMS concurred and deferred to the ODAGs
response to this recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for USMS.
Recommendation 8: All four law enforcement components, in
coordination with ODAG, should take concrete steps to acquire and
implement technology to be able to, as appropriate in the circumstances,
proactively monitor text message and image data for potential
misconduct.
Status: Closed.
FBI Response: The USMS concurred and deferred to the ODAGs
response for this recommendation.
OIG Analysis: The OIG will work with the ODAG regarding this
recommendation. This recommendation is closed for USMS.

131

TIle Department of Justice Office of the Inspector General

(DOJ OIG) is a statutorily created independent entity
whose mission is to detect and deter waste, fraud,
abuse, and misconduct in the Department of Justice, and
to promote economy and efficiency in the Department's
operations. Information may be reported to the DOJ
OIG 's hotline at www.justice.gov/oig/llOtline or
(800) 869-4499.

Office of the Inspector General

U.S. Department of Justice
www .justice.gov!oig