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OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Special Report
EPA Needs to Respond
More Timely to
Reports of Investigation
Report No. 2007-M-00003
May 7, 2007
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Abbreviations
DOJ U.S. Department of Justice
EPA U.S. Environmental Protection Agency
Handbook EPA Disciplinary Process Handbook
OIG Office of Inspector General
01 Office of Investigations
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
2007-M-00003
May 7, 2007
Why We Did This Review
We conducted this special
review to determine whether
the U.S. Environmental
Protection Agency (EPA) took
disciplinary action on employee
misconduct cases identified by
Office of Inspector General
(OIG) Reports of Investigation;
and if the disciplinary action
taken was timely, appropriate,
and in accordance with
established guidelines. We
looked at cases closed between
October 1, 2002, and
September 30, 2006.
Background
Many jobs at EPA require
employees to deal with the
public. EPA employees also
manage, control, and oversee
Federal funds as well as
sensitive and confidential data.
EPA employees must maintain
the highest standards of
conduct as representatives of
the Agency. Failure to deal
quickly and decisively with
violations of these standards
undermines the confidence the
public will have in the Agency.
For further information,
contact our Office of
Congressional and Public
Liaison at (202) 566-2391.
To view the full report,
click on the following link:
www.epa.aov/oia/reports/2007/
20070507-2007-M -00003. pdf
Catalyst for Improving the Environment
EPA Needs to Respond More Timely to
Reports of Investigation
What We Found
While EPA took disciplinary action where deemed appropriate, it did not take
the actions timely. EPA policies require the Agency to initiate disciplinary
actions within 30 days from the date the Office of Inspector General's Office
of Investigations issues a Report of Investigation. However, EPA took an
average of almost 200 days to do so. According to several EPA action
officials, EPA may not take disciplinary action within 30 days because the
Agency cannot complete the process recommended in the EPA Disciplinary
Process Handbook within 30 days. EPA officials noted they are often uneasy
in dealing with the sensitive issues involved, and union involvement can also
cause delays. Further, EPA officials said it would be helpful if the Office of
Investigations did followup on the status of pending actions and provided
reminders.
For six cases we reviewed, the Agency did not take disciplinary actions that
were severe enough considering the nature of the misconduct. For example,
EPA only gave an oral admonishment to an employee who was absent without
authorization for over 400 hours. Another employee, who pled guilty in court
to using a credit card stolen from another Federal agency for personal
purchases, only received a letter of reprimand. A third employee, who pled
guilty to bank fraud and was sentenced to a day in jail and 5 years probation,
had a 45-day suspension recommended by the employee's supervisor reduced
by the action official to 14 days.
What We Recommend
We recommend that the EPA Deputy Administrator:
1. Re-evaluate the 30-day reporting requirement to consider a timeframe
more in line with the length of time necessary to accomplish EPA's
disciplinary process.
2. In cases when the Agency is unable to meet established timeframes,
provide an action plan that includes any interim action taken to minimize
the risks of continued misconduct pending final disciplinary action.
3. Assure that disciplinary actions taken in employee integrity and
misconduct cases are sufficient and appropriate.
The Agency generally agreed with our recommendations, although we would
like to see the Agency make more of a commitment to dealing with employee
misconduct.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
May 7, 2007
MEMORANDUM
SUBJECT:
Special Report:
EPA Needs to Respond More Timely to Reports of Investigation
Report No. 2007-M-00003
TO:
Marcus Peacock
Deputy Administrator
This is our report on the subject audit conducted by the Office of Inspector General (OIG) of the
U.S. Environmental Protection Agency (EPA). This report contains findings that describe the
problems the OIG has identified and corrective actions the OIG recommends. This report
represents the opinion of the OIG and does not necessarily represent the final EPA position.
Final determinations on matters in this report will be made by EPA managers in accordance with
established audit resolution procedures. The findings described in the report are not binding
upon EPA in any enforcement proceeding brought by EPA or the Department of Justice.
The estimated cost of this report - calculated by multiplying the project's staff days by the
applicable daily full cost billing rates in effect at the time - is $35,537.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to the
findings and recommendations in this report within 90 days of the report date. You should
include a corrective actions plan for agreed upon actions, including milestone dates. We have no
objections to the further release of this report to the public. This report will be available at
http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact Stephen J. Nesbitt,
Assistant Inspector General for Investigations, at (202) 566-0817 or nesbitt.stephen@epa.gov:
or Larry Valett, Project Manager, at (202) 566-0815 or valett.larry@epa.gov.
Bill A. Roderick
Acting Inspector General
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EPA Needs to Respond More Timely to Reports of Investigation
Table of Contents
Purpose 1
Background 1
Noteworthy Achievements 2
Scope and Methodology 3
Results of Review 3
EPA Actions Not Timely 3
EPA Actions Not Sufficient 5
Conclusion 7
Recommendations 7
Agency Response and OIG Comments 7
Status of Recommendations and Potential Monetary Benefits 9
Appendices
A EPA's Disciplinary Process 10
B The Douglas Factors 11
C Table of Offenses and Penalties 12
D Agency Response 14
E Distribution 16
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Purpose
The overall role of the Office of Investigations (01) within the U.S. Environmental Protection
Agency (EPA) Office of Inspector General (OIG) is to promote the integrity of Agency programs
and personnel. 01 is responsible for detecting and investigating indications or allegations of
violations of Federal criminal law, violations of regulations, or other irregularities indicating
potential misconduct. These allegations can range from making false claims or statements,
fraud, theft, misuse of Government equipment, conflicts of interest, ethics violations, and other
matters. Our objective was to determine whether EPA took appropriate administrative action on
those cases when 01 investigations verified the allegations against EPA employees; and assess
whether such action was timely, consistent with the matters investigated, and in accordance with
established laws, regulations, and policies.
Background
The Inspector General Act of 1978 requires the EPA OIG to conduct and supervise audits and
investigations of EPA programs and operations. It is the OIG's responsibility to: (1) investigate
complaints against EPA employees; and (2) investigate information received about activities that
may constitute a violation of law, rule, or regulation; mismanagement; waste of funds; abuse of
authority; or a substantial and specific danger to the public health and safety.
Investigations often involve EPA employees concerning allegations of serious misconduct,
conflicts of interest, and criminal activity. 01 evaluates the allegations to determine whether an
investigation is warranted and appropriately focuses resources where needed. This approach is
particularly important in evaluating many complaints of employee misconduct where referrals
may be made to (and immediate corrective action can be taken by) Agency officials without the
necessity of an investigation by the OIG.
Investigations of EPA employees fall under the following categories:
A. Criminal Matters. The OIG investigates criminal matters involving waste, fraud, and
abuse by EPA employees, contractors, or grantees. In some instances, the OIG may refer
certain criminal matters to other Federal agencies if the matter does not fall within the
jurisdiction of the OIG, or depending upon other circumstances.
B. Ethical Conduct. The OIG investigates allegations against employees for ethical or
other conduct prejudicial to the Government (5 Code of Federal Regulations Part 2635 and
40 Code of Federal Regulations Part 3).
01 generally presents the results of employee investigations by issuing a Report of Investigation
to the U.S. Department of Justice (DOJ), the EPA program or action official, or both. Due to the
differences injudicial districts, DOJ may not always require a Report of Investigation for
criminal prosecution. However, 01 will generally issue a Report of Investigation so that the
Agency can take disciplinary action regardless of whether DOJ prosecutes the employee.
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01 would not generally issue a Report of Investigation if the employee resigns from EPA before
completing the investigation because EPA is no longer in a position to take action. Nonetheless,
DOJ may prosecute cases of criminal misconduct regardless of whether the person is a current
EPA employee. When 01 issues a Report of Investigation to the Agency, the action officials
must adjudicate or initiate appropriate administrative action within 30 days of the date of the
report, as per EPA Manual 6500, and notify the OIG of the proposed action.
01 investigates indications or allegations of violations of Federal criminal law, regulations, and
other irregularities by EPA employees. These allegations can range from making false claims
(such as travel vouchers or other claims for reimbursements), false statements, the misuse of
Government equipment (such as Government automobiles or computers), conflicts of interest,
ethics violations, and other matters. Reports of Investigation do not include conclusions or
recommendations; they simply report the facts of a situation. Any actions resulting from
investigations become the responsibility of management to follow up and take action.
Between October 1, 2002, and September 30,
2006, the OI closed 69 cases involving the
integrity or conduct of EPA employees. Table 1
lists the types of cases.
EPA's overall reputation is at stake whenever
employee actions have a detrimental effect on
the Agency's reputation. EPA cannot
reasonably expect the regulated community to
take environmental regulations or guidance
seriously if it does not require its employees to
comply with the rules relating to ethical
conduct. Many jobs at EPA require employees
to deal with the public; and manage, control,
and oversee Federal funds and sensitive and
confidential data. For that reason, it is crucial
that EPA employees maintain the highest
standards of conduct as representatives of the
Agency and the Federal Government. Failure to
deal quickly and decisively with violations of
these principles undermines that confidence. In one Regional Administrator's decision, EPA
stated that these types of matters are extremely serious, and EPA cannot tolerate this type of
misconduct when the public expects the highest ethical conduct from the people who preserve
and protect our environment.
Noteworthy Achievements
Our review discovered that the Agency took disciplinary action in all employee misconduct
cases when warranted. In discussions with several action officials, employee misconduct cases
are assigned a high priority by the Agency, and EPA also wants to make sure that the
disciplinary action it takes is appropriate in the circumstances. They often contact other regions
Table 1: Types of Cases Investigated
Type of Case
No. of Cases
Bribery
2
Conflict of interest
21
Conspiracy
2
Credit card misuse
3
Embezzlement
3
False claims
5
False statements
10
Forgery
3
General crimes
3
Impersonation/misrepresentation
1
Misuse of Government property
7
Narcotics
1
Stolen property
3
Theft
2
Wire fraud
3
Total cases
69
Source: OIG case file database
2
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or EPA Headquarters to ensure that the disciplinary action proposed is consistent with other
regions.
Scope and Methodology
We performed this review in accordance with the President's Council on Integrity and Efficiency
and the Executive Council on Integrity and Efficiency Quality Standards for Inspections, which
guides the conduct of all inspection work performed by OIGs. The term "inspection" includes
evaluations, inquiries, and similar types of reviews that do not constitute audits or criminal
investigations. We conducted preliminary research and field work from October 23, 2006, to
January 5, 2007.
We reviewed the investigative files for 69 cases involving employee misconduct closed during
the period October 1, 2002, through September 30, 2006. We reviewed all case file information,
including the original allegation, status reports,
correspondence between OI and EPA officials, the
Report of Investigation, and Agency responses. If
necessary, we discussed the cases with the special
agents who conducted the investigation. We
discussed administrative actions and procedures
with EPA action officials.
We had found disciplinary action was warranted in
41 cases and the allegations to be unfounded in 28
cases (see Table 2). For 26 of the 41 cases, we
issued reports to the Agency. We did not issue a
report in 15 cases because the employees resigned
from EPA before prosecution, or the cases
concerned OIG employees (see Table 3).
Results of Review
EPA Actions Not Timely
EPA took an average of almost 200 days to notify the OIG of the decisions made or
administrative action taken on the 26 cases of employee misconduct warranting action,
approximately 6 months more than the 30 days required. The actual time ranged from 26 days to
1,046 days. Delays in taking action on employee integrity and misconduct undermine the
confidence and trust of the Federal Government. EPA Manual 6500 states that EPA action
officials are to adjudicate or initiate appropriate administrative action within 30 days of the date
of the report, and to notify the OIG of the proposed action. If there is no action taken within
30 days, the action official must provide a status report to the OIG. Action officials must also
notify OI of the final disposition of the full and complete administrative action taken. Our
review found that the case files did not contain any correspondence or memos from the Agency
that it would not take any administrative action within the required timeframe.
Table 2: Summary of Cases Reviewed
Cases reviewed
69
Allegations unfounded
28
Cases warranting action
41
Source: OIG case file database
Table 3: Cases Requiring Action
Breakdown of Cases
Warranting EPA action
26
Resigned before prosecution
11
Involved OIG employee
4
Total cases
41
Source: OIG analysis of case files
3
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According to the action officials we contacted, the primary reason the Agency did not take
administrative action within 30 days is that EPA cannot complete the process outlined in EPA's
Disciplinary Process Handbook (Handbook) within 30 days and still afford the employee due
process. A detailed list of the process is in Appendix A.
The Handbook is a reference for supervisors and managers to help them determine whether to
impose disciplinary action in each particular case. The Handbook identifies seven steps to help
Agency officials through the disciplinary process, starting with contacting the Human Resources
Office. The process recommends using a
strategic, team approach to provide Agency
officials with consulting and advisory
services, and generally includes forming an
Advisory and Support Team to provide advice
and guidance to action officials during the
disciplinary review process. The process
follows established EPA policies concerning
disciplinary actions, as listed in Table 4. The
Handbook describes establishing an action plan ("Road Map") when discipline is needed. It
identifies specific procedures the Advisory and Support Team needs to follow to recommend
what disciplinary action to take, and how the Agency should respond to the investigation.
The timeframes included in the Handbook, if followed, would take a minimum of about 45 days.
Several Agency officials told us the severity of the discipline affects the time - the more severe
the discipline, the longer the process. Regions may seek advice from the Agency, other regions,
or both, to make certain the disciplinary action is fair and consistent. Understandably, the
region's concern is taking disciplinary action that is appropriate and it can defend.
Nonetheless, EPA Manual 6500 states that it is to adjudicate or initiate appropriate
administrative action within 30 days of the date of the report, and to notify the OIG of the
proposed action. When the Agency cannot take final disciplinary action within 30 days, it is
required to provide OI with a status report within 30 days. The status report does not need to
follow a specific format, and the action plan developed during the region's review process could
serve as the status report to the OIG. Our review found that the case files did not contain any
correspondence or memos from the Agency to the OIG indicating it would not be taking any
administrative action within the required timeframe.
The time involved in completing the review process and determining what disciplinary action to
take may continue to put EPA funds at risk and have a negative impact on the integrity of EPA
programs. To help alleviate such concerns, EPA may take interim actions, such as reassignment
or administrative leave, to minimize the risks of continued misconduct. In such instances, the
Agency should inform the OIG of the interim actions taken to protect EPA funds and programs
pending final disciplinary actions. There were no notifications of any interim actions taken by
the Agency pending a final decision.
If the Agency is considering disciplinary action on an employee who is a member of an
employee bargaining unit or union, the employee has the right to union representation during the
Table 4: EPA Employee Discipline Polices
EPA Policy
Title
3110.6B
Adverse Actions
3110.8A
Administrative Grievance System
3120.1
Conduct and Discipline
3120.2
Conduct and Discipline,
Senior Executive Service
Source: EPA Disciplinary Process Handbook
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process. The Agency officials we contacted said that union involvement may dramatically affect
the proposed administrative action, as well as how long it takes the Agency to act. Agency
officials told us that unions are too willing to file grievances, often defend inappropriate
behavior, and delay the final decision when the Agency is ready to take disciplinary action.
Agency officials also said it would be beneficial if 01 followed up on cases to "remind" action
officials that they need to take action. While the OIG is not responsible to remind or otherwise
ensure that the Agency takes any action, one of the President's Council on Integrity and
Efficiency standards established for investigative organizations is to monitor administrative
issues and assure that action officials consider and address any recommendations. While the
Report of Investigation does not make recommendations or conclusions in investigative matters,
both the Agency and 01 can benefit from improved communications to ensure these matters are
resolved in a timely fashion.
EPA Actions Not Sufficient
For 6 of the 26 cases that warranted EPA action, the disciplinary actions taken did not appear to
sufficiently consider the severity of the misconduct. In accordance with EPA Order 3120.1,
Conduct and Discipline Manual (Appendix C), disciplinary actions can include oral
admonishments, written warnings, letters of reprimand, suspension, downgrade, or separation
from Federal service. The disciplinary process focuses on several factors, including the
"Douglas Factors." These are relevant factors, identified by the U.S. Merit Systems Protection
Board, in determining the appropriateness of disciplinary actions (see Appendix B for a listing).
Based on these factors, and EPA Order 3120.1, we concluded the following six disciplinary
actions were not sufficient:
• An employee was absent for over 400 hours without authorization and did not submit
leave slips, yet only received an oral admonishment. The guidance on corrective
discipline (Appendix to EPA Order 3120.1) lists the disciplinary action for the first
offense for being absent without leave as a written reprimand to a 5-day suspension.
Being absent without leave for over 400 hours is equivalent to over 50 days. An oral
admonishment does not appear to meet established EPA policies or guidelines.
• An EPA employee admitted using a Government position to obtain information and
conduct research to write a book on emergency and terrorism preparedness. The
employee acknowledged not being directed by anyone at EPA to conduct the research or
write the book, and the book was not related to the employee's EPA duties. According to
the Appendix to EPA Order 3120.1, using an employee's official authority to gain
information for private gain is a minimum 14-day suspension for the first offense.
However, this employee only received a written warning.
• An employee used a credit card stolen from another Federal agency for personal
purchases. The employee pled guilty in a plea agreement, had to make restitution, and
received 3 years probation from the State where the employee lived. EPA only issued a
letter of reprimand.
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• An employee received an oral reprimand for participating in a food stamp trafficking
scheme conducted by the employee's spouse. DOJ indicted and convicted the
employee's spouse, but declined prosecution on the employee. The employee stated they
were not aware of the spouse's activities, but the employee commonly cashed checks for
the spouse, even though the checks were payable to the employee. According to EPA
Order 3120.1, the minimum disciplinary action for this type of misconduct is a written
reprimand.
• An employee fraudulently altered pay stubs and the action official reduced the
disciplinary action from the 60-day suspension recommended by the employee's
supervisor to 10 days because the employee was a "valued employee." The action
official based the suspension on the "deliberate misrepresentation and falsification of a
material fact," and "falsifying official government documents." The disciplinary action
for a first offense for either of these charges ranges from a written reprimand to removal.
While we agree that the disciplinary action was within the Agency's discretion, we
believe that the proposed 60-day suspension would have been more commensurate with
the offenses.
• An employee pled guilty to bank fraud for stealing several thousand dollars in income tax
refund checks, forging signatures, and depositing the checks into the employee's bank
account. The court sentenced the employee to 1 day in jail and 5 years probation. The
employee's supervisor recommended a 45-day suspension but the action official reduced
it to 14 days. Reducing the disciplinary action does not seem appropriate considering the
nature and seriousness of the offense. Of particular concern, the employee was a grant
specialist who dealt with the public on a regular basis.
Based on the Douglas factors and the guidelines established by the Appendix to EPA Order
3120.1, most of the disciplinary actions in the cases cited above were not commensurate with the
offenses. While the action officials considered the Douglas Factors in these cases, they also have
wide latitude in determining the disciplinary action in each case. The first of the Douglas
Factors is to consider the nature and seriousness of the offense, and its relation to the employee's
duties, position, and responsibilities. The action official also needs to consider whether the
offense was intentional, technical, or inadvertent; committed maliciously or for gain; or repeated
frequently. EPA could consider using an independent review board or other party to assess
whether or not the action taken is in accordance with established EPA employee discipline
policies and the Douglas Factors.
During our review, we noted an open case that, while not part of our original review of closed
case files, is of concern. While the case is still open, the investigation is complete and the
Agency took action. Specifically, an employee admitted to fraudulently purchasing computer
equipment between 1992 and 2002. This employee intentionally circumvented EPA's
procurement system, and never had any purchasing authority. The computers were never
included in EPA's inventory system, and this employee cannot currently account for any of the
computers. The employee freely admitted some of the fraudulently purchased equipment was for
personal use. Based on dollar thresholds and other factors, DOJ declined criminal prosecution in
lieu of administrative action by the Agency. The disciplinary action taken by the Agency was an
6
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official reprimand. The official reprimand did not state that the Douglas Factors were
considered, or that the action official considered the Appendix to EPA Order 3120.1. The
disciplinary action in this case does not address the fact that this employee admitted to using a
Government position to obtain information to write a book on emergency and terrorism
preparedness, as discussed above. For that offense, the employee only received a written
warning when EPA Order 3120.1 specifies it should have been at least a 14-day suspension.
Conclusion
While EPA needs to act quickly and decisively when EPA employees do not adhere to the
principles of ethical conduct, there are practical impediments that prevent it from taking action
within 30 days. However, EPA can take interim measures to prevent the misconduct from
reoccurring and protect EPA funds. Those interim measures should be reported to the OIG
pending any final decision. While the Agency has certain latitude in determining disciplinary
actions, such actions should be commensurate with the misconduct, particularly in accordance
with EPA Order 3120.1 and the Douglas Factors. Improved communications between the
Agency and the OIG during the disciplinary process should help to facilitate the Agency's fact-
finding steps. Improved communications should also address any outstanding concerns or
questions, provide sufficient facts upon which commensurate action can be taken, and decrease
the overall time needed for the Agency to determine the appropriate disciplinary action to take.
Recommendations
We recommend that the EPA Deputy Administrator:
1. Re-evaluate the 30-day reporting requirement on Reports of Investigation to consider a
timeframe more in line with the length of time necessary to accomplish EPA's
disciplinary process.
2. In cases when the Agency is unable to meet established timeframes, provide the OIG
with an action plan that includes any interim action taken to minimize the risks of
continued misconduct pending final disciplinary action. To ensure the action plan and
timelines are being met, implement a system to adequately track and monitor the progress
of the disciplinary action process.
3. Assure that disciplinary actions taken in employee integrity and misconduct cases are
sufficient and appropriate. Such steps may include the use of an independent review
board or other party to assess whether or not the action taken is in accordance with
established EPA employee discipline policies and the Douglas Factors and are in the best
interests of the U.S. Government.
Agency Response and OIG Comments
The Agency generally agreed with our recommendations, and its complete response is in
Appendix D. However, we would like to see the Agency make more of a commitment to dealing
with employee misconduct.
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Regarding Recommendation 1, the Agency stated: "We believe it is appropriate to update EPA
Manual 6500 to better reflect the actual time needed." We appreciate this response, but suggest
that the Agency establish a date when a revision of EPA Manual 6500 will be completed.
For Recommendation 2, EPA said action officials should be "encouraged" to notify OIG of
interim measures, and also develop a system to track and monitor disciplinary actions. We
believe the Agency should implement a directive "requiring" action officials to notify the OIG,
rather than to only "encourage." EPA should advise us when the system will be completed.
In response to Recommendation 3, the Agency stated:
While we appreciate the information provided, we think that this is an area that
we would like to explore further before we put any new mechanisms in place.
For greater than 75% of the cases reviewed, your staff assessed the disciplinary
action to be appropriate to the misconduct identified. For the remaining 6, you
have identified a concern that the disciplinary action was too lenient and
recommend that EPA establish an independent review board to review all
disciplinary actions. We would like the opportunity to identify additional options
to address this issue. Given the relatively low percentage of cases of concern a
less time consuming and less costly solution may be appropriate... A more
effective approach may be to explore modifying our current leadership
development program and mentoring and coaching activities to emphasize to
supervisors and managers the importance of holding employees accountable for
performance and conduct issues.
As reported, EPA took action in 26 cases, but for nearly 25 percent of the cases (6) the actions
taken either did not meet the minimum disciplinary action recommended in the guidelines or
were not acceptable considering the severity of the misconduct. These findings reflect that in
nearly 25 percent of the Agency's disciplinary actions, Agency management is not considering
established guidelines when making decisions or is not objectively considering the totality of
facts. While the nearly 25 percent does not represent the majority of the cases reviewed, we still
consider it a substantial percentage and is an area of concern. We do not believe that further
exploration is necessary. EPA needs to adhere to established minimum guidelines for
disciplinary actions. Establishing a review board is one suggestion we are making to ensure EPA
management meets standards, and we believe EPA should still consider establishing such a
board.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
POTENTIAL MONETARY
BENEFITS (In $000s)
Rec.
No.
Page
No.
Subject
Status1
Action Official
Planned
Completion
Date
Claimed
Amount
Agreed To
Amount
Re-evaluate the 30-day reporting requirement on
Reports of Investigation to consider a timeframe
more in line with the length of time necessary to
accomplish EPA's disciplinary process.
In cases when the Agency is unable to meet
established timeframes, provide the OIG with an
action plan that includes any interim action taken to
minimize the risks of continued misconduct
pending final disciplinary action. To ensure the
action plan and timelines are being met, implement
a system to adequately track and monitor the
progress of the disciplinary action process.
Assure that disciplinary actions taken in employee
integrity and misconduct cases are sufficient and
appropriate. Such steps may include the use of an
independent review board or other party to assess
whether or not the action taken is in accordance
with established EPA employee discipline policies
and the Douglas Factors and are in the best
interests of the U.S. Government.
Deputy Administrator
Deputy Administrator
Deputy Administrator
1 0 = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is undecided with resolution efforts in progress
9
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Appendix A
EPA's Disciplinary Process
A Road Map to the Discipline Process
Using the Advisory and Support Team
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Source: EPA's Disciplinary Process Handbook
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Appendix B
The Douglas Factors
The Merit Systems Protection Board decision, Douglas vs. Veterans Administration, 5 MSPR
280, established criteria that supervisors must consider in determining an appropriate penalty to
impose for an act of employee misconduct. These factors must be considered in determining the
severity of the discipline:
(1) The nature and seriousness of the offense, and its relation to the employee's duties,
position, and responsibilities, including whether the offense was intentional or technical
or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
(2) the employee's job level and type of employment, including supervisory or fiduciary role,
contacts with the public, and prominence of the position;
(3) the employee's past disciplinary record;
(4) the employee's past work record, including length of service, performance on the job,
ability to get along with fellow workers, and dependability;
(5) the effect of the offense upon the employee's ability to perform at a satisfactory level and
its effect upon supervisors' confidence in the employee's work ability to perform
assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or
similar offenses;
(7) 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;
(10) the potential for the employee's rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job tensions,
personality problems, mental impairment, harassment, or bad faith, malice or provocation
on the part of others involved in the matter; and
(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future
by the employee or others.
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Appendix C
Table of Offenses and Penalties
The following excerpts from the Appendix to EPA Order 3120.1, Conduct and Discipline,
identify certain offenses and suggested penalties. This table is a guide for supervisors to
facilitate comparable action throughout the Agency in comparable cases. While penalties for
offenses will usually fall within the ranges indicated, in unusual circumstances, greater or lesser
penalties may be applied unless otherwise provided by law. The list of offenses in this table is
not meant to be all inclusive. For offenses not listed, penalties may be imposed which are
consistent with penalties listed in the table for offenses of comparable gravity.
Nature of Offense
1. Attendanee related offenses.
a. Unexcused tardiness.
[This includes delay in reporting at the scheduled
(starting time, returning from lunch and returning
(after leaving work station on official business.
4th offense may warrant 5-day suspension to
removal.
:b. Absence without leave (AWOL).
(These penalties generally do not apply to AWOL
(charged for tardiness of 1.2 hour or less, (see la
(above.) This offense includes leaving the work
(station without permission.
(Penalty depends on length and frequency of
(absences. If absence exceeds 5 consecutive work
da\ s, employee may be removed at any time.
c. Failure to follow established leave procedures.
7. Conduet whieh is generally eriminal,
infamous, dishonest, immoral or notoriously
disgraceful.
[8. Abusive or offensive language, gestures, or
'other conduct. (Also see "Discourtesy," 9 below
1st Offense
{Oral
I admonishment
2nd Offense
Oral
admonishment to
1-dav suspension
(Written reprimand
Jto 5-day
(suspension
j 1-day to 14-day
(suspension
W iitten reprimand
to 5-day
suspension
l-da\ to 5-day
suspension
Wiitten reprimand
•to 10-day
suspension
Oral
admonishment to
5-day suspension
3rd Offense
jOral
| admonishment to
l5-dav suspension
15-day suspension
(to removal
: Written reprimand 30-day suspension
to removal to removal
5-day suspension
to removal
removal
5-day suspension
to removal
Written reprimand
to 10-dav
30-day suspension
to removal
10-day suspension
to removal
9. Discourtesy to the public.
suspension
10. Stealing, actual or attempted; unauthorized possession of Government property or property of others.
a. Where substantial value is not involved.
I). Where substantial value is involved.
Written reprimand
to 30-day
suspension
; 14-dav suspension
to removal
removal
Written reprimand
to removal
removal
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Nature of Offense
1st Offense
2nd Offense
3rd Offense
11. Using Government property or Government
|Cmployees in duty status for other than official
jpurposes.
(Penalty depends on the value of the property or
amount of employees' time involved, the nature of
[the position held by the offending employee, and
other factors.
(For misuse of Government vehicles, see 43 below.)
12. Use of official authority or information for
private gain.
13. Failure to obtain required clearance of an
official speech or article.
jl4. Engaging in private business activities which
| result in or create the appearance of a conflict of
interest.
15. Misuse of official Government credential.
: 16. Deliberate misrepresentation, falsification,
(concealment, or withholding of a material fact,
'or refusal to testify or cooperate in an official
proceeding.
: 17. Loss or damage to Government property,
(records, or information. (Also see 44.)
penalty depends on value of property or extent of
(damage, and degree of fault attributable to the
employee.
27. Forging or falsifying official Government
records or documents.
(30. Conducting personal affairs while in duty
status.
31. Falsifying time and attendance records for
oneself or another employee.
| Written reprimand
to removal
5-day suspension 114-day suspension
to removal (to removal
: 14-dav suspension
to removal
Written reprimand
to 5-day
suspension
j Written reprimand
Ito removal
Written reprimand
to removal
[Written reprimand
¦to removal
jOral
j admonishment to
(removal
Written reprimand
to removal
removal
5-day to 14-day 14-day suspension
suspension to removal
20-day suspension I .
, removal
Ito removal !
5-day suspension 1-day suspension
to removal to removal
j 5-day suspension j 14-day suspension
'to removal 'to removal
(Written reprimand 15-day suspension |
jto removal Ito removal I
: removal
W ritten reprimand
to 1-day
suspension.
: 2-day to 10 day 30-day suspension
suspension. to removal
Written reprimand
to removal
10-dav suspension ,
¦ - , removal
to removal
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Appendix D
Agency Response
April 6, 2007
MEMORANDUM
SUBJECT: Comments on OIG Draft Report on EPA Employee Actions
TO: Larry Valett, Director, Financial Fraud Directorate,
Office of Inspector General
FROM: Marcus C. Peacock
Thank you for the opportunity to review this preliminary report and to provide comments which
we believe will add to the accuracy and utility of the recommendations. As you accurately note
in the report, "employee misconduct cases are assigned a high priority by the Agency" and "EPA
has taken disciplinary actions in all employee misconduct cases when warranted".
You have provided two recommendations specific to EPA's timeliness in taking disciplinary
actions and one recommendation related to the nature and appropriateness of the disciplinary
action itself. My comments are as follows:
1. Re-Evaluate the 30 day reporting requirement:
We agree that EPA officials responsible for implementing disciplinary or corrective action
(action officials) are generally not able to take those actions within 30 days of the date they
receive an Office of Inspector General (OIG) Report of Investigation (ROI). The drafting,
review, and adjudication of disciplinary actions involves multiple Agency officials (HR,
OGC/ORC, etc.), and may take longer than 30 days. We believe it is appropriate to update EPA
Manual 6500 to better reflect the actual time needed.
2. Interim Measures:
We agree that in situations involving allegations of serious misconduct, action officials should
consider taking interim measures (e.g., temporary reassignment of duties) pending a final
disposition on the allegations. While interim measures may be routinely considered by action
officials, action officials should be encouraged to notify OIG of such interim measures. EPA will
develop a system to track and monitor disciplinary actions.
3. Appropriateness of Disciplinary Action Chosen:
While we appreciate the information provided, we think that this is an area that we would like to
explore further before we put any new mechanisms in place. For greater than 75% of the cases
reviewed, your staff assessed the disciplinary action to be appropriate to the misconduct
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identified. For the remaining 6, you have identified a concern that the disciplinary action was too
lenient and recommend that EPA establish an independent review board to review all
disciplinary actions. We would like the opportunity to identify additional options to address this
issue. Given the relatively low percentage of cases of concern a less time consuming and less
costly solution may be appropriate.
A more effective approach may be to explore modifying our current leadership development
program and mentoring and coaching activities to emphasize to supervisors and managers the
importance of holding employees accountable for performance and conduct issues.
Again, thank you for the opportunity to provide comments and suggestions at this early stage. I
hope you find them constructive and would welcome the opportunity to discuss these issues in
further detail.
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Distribution
Office of the Administrator
Deputy Administrator
Agency Followup Official (the CFO)
Agency Followup Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Acting Inspector General
Appendix E
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