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DOUBLE STANDARDS: A REVIEW OF CRIMINAL INVESTIGATIONS AT THE DEPARTMENT OF EDUCATION

OCTOBER 27, 1988.-Ordered to be printed

Mr. BROOKS, from the Committee on Government Operations,

submitted the following

SEVENTY-FIFTH REPORT

together with

DISSENTING AND ADDITIONAL VIEWS

BASED ON A STUDY BY THE HUMAN RESOURCES AND
INTERGOVERNMENTAL RELATIONS SUBCOMMITTEE

On September 27, 1988, the Committee on Government Operations approved and adopted a report entitled "Double Standards: A Review of Criminal Investigations at the Department of Education.” The chairman was directed to transmit a copy to the Speaker of the House.

I. INTRODUCTION Under the House of Representatives Rule X, 2(b)(2), the Committee on Government Operations is authorized to “review and study, on a continuing basis, the operation of Government activities at all levels with a view to determining their economy and efficiency.” The committee has assigned this responsibility, as it pertains to the Department of Education (DOEd), to the Human Resources and Intergovernmental Relations Subcommittee.

Pursuant to its authority, the subcommittee conducted an oversight review of the handling and final disposition of investigations conducted by the DOEd Office of Inspector General (OIG). The subcommittee's purpose was to determine if all Federal beneficiaries and DOEd employees-both career staff and political appointeesare treated equally when determinations are made by the Department of Justice (DOJ) to prosecute, or by DOEd management to discipline personnel found in violation of Federal laws and regulations.

The subcommittee reviewed a period—from April 1, 1986, to March 31, 1988—when the OIG referred 600 criminal investigations to DOJ for prosecution. Of the cases referred, 346 (57 percent) were accepted by DOJ. Most of the cases involved DOEd employees who were found to have falsified time and attendance records or Federal beneficiaries who obtained student loans under false pretenses.

Subcommittee staff reviewed more than 300 investigative case files and interviewed OIG staff investigators to determine the final outcomes of the investigations.

The subcommittee's investigation culminated in a hearing, which was conducted on June 23, 1988. Sworn testimony was provided by the DOEd Inspector General, two former OIG special agents, and the Department's Deputy Under Secretary for Management.

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II. BACKGROUND Under the provisions of the Inspector General Act of 1978 (Public Law 95-452), the OIG at DOEd is authorized to conduct audits and investigations of programs and operations of the Department, including the activities of all departmental employees.

Allegations of employee misconduct are brought to the attention of the OIG in several ways. The Inspector General Hotline, which operates a toll-free telephone line, is a primary source of allegations. Information also comes to the OIG from Department personnel, written complaints from the public, referrals from the U.S. General Accounting Office, and material uncovered by the OIG's own investigators.

When sufficient evidence is developed to indicate possible criminal violations of law, the OIG conducts a formal investigation, sometimes in cooperation with other law enforcement authorities, such as the FBI and U.S. Attorneys. Criminal investigations can be elaborate, and sometimes involve the use of technical support like fingerprint or handwriting analysis. If necessary, the IG can use its own administrative subpoena authority or obtain information through subpoenas issued by Federal grand juries.

When merited, cases developed by the OIG are prosecuted by the U.S. Attorney's office with regional jurisdiction in each matter. If a case is accepted for criminal prosecution, OIG investigators are made available to assist in the presentation of the case. The U.S. Attorney otherwise directs all aspects of the prosecution.

In conjunction with the prosecution of a criminal case, or in matters where misconduct is found, but prosecution is declined, the OIG refers its findings to the Justice Department for civil prosecution or to DOEd management officials for the consideration of disciplinary action.

Hearing before a subcommittee of the Committee on Government Operations, House of Representatives, "Criminal Investigations Involving Department of Education Employees," June 23, 1988, hereinafter referred to as Hearing. Not yet printed. Where applicable, page numbers are from the transcript, which is on file in the subcommittee office.

The OIG findings are transmitted to the senior officer of the program where the employee under investigation works. The senior officer may delegate the matter to the employee's line supervisor, but is responsible for sending a followup report of disciplinary actions to the OIG within 30 days.

Responses are coordinated with employee relations specialists and the DOEd Office of General Counsel, and are based on applicable laws, regulations, case law, and criteria in the Federal Personnel Manual. In addition, DOEd managers rely on two documents: the DOEd Table of Penalties and the twelve factors recognized as relevant in determining penalties by the Merit Systems Protection Board (MSPB). These factors, known as the Douglas Factors, were developed as the result of a landmark case decided by the MSPB in

a 1981. The factors take into account the employee's past disciplinary record, type of position, and existence of any other mitigating circumstances, such as personality problems.

Penalties proscribed by DOEd guidelines range from a temporary suspension to terminations. The penalties may be appealed to the MSPB or through internal DOEd grievance procedures. Cases of discrimination are brought to the DOEd Equal Employment Opportunity Office. Management has the burden of proof in all appeals.

Although DOEd has the authority to discipline its employees, Federal personnel guidelines require that punishment be even handed. According to the Department's Personnel Manual Instruction:

There are situations which may call for disciplinary action and disciplinary actions are available, ranging from an oral or written admonishment to an official letter of reprimand. There is no substitute for judgment in selecting among them. Responsible judgment must be exercised so that an employee will not be penalized out of proportion to the character of the offense. In taking disciplinary actions, like penalties should be imposed for like offenses. 2 (Emphasis added.)

III. FINDINGS

A. DOES VIOLATED ITS OWN PERSONNEL STANDARDS BY IMPOSING

HARSH PENALTIES ON LOWER GRADE EMPLOYEES WHILE ISSUING MILD REPRIMANDS TO POLITICAL APPOINTEES GUILTY OF MISCONDUCT

The DOES OIG semiannual reports contain examples of departmental employees who have been investigated, found guilty of misconduct, and disciplined. For example, the OIG April 1, 1987, report detailed the case of a DOEd carpool driver who was suspended without pay for 60 days because he had used Federal vehicles for personal transportation.3

In 1987, a DOEd clerical employee pleaded guilty to making false statements in connection with the theft of $1,400 in Federal payroll funds. She received a suspended prison sentence and was required

2 “U.S. Department of Education Personnel Manual Instruction, 751-1,” May 27, 1981.

· Semiannual Report to Congress,” U.S. Department of Education, Office of Inspector General, April 1, 1987-September 30, 1987.

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