5.1 What is the purpose of this chapter? This chapter:
A. Establishes a Professional Responsibility Unit (PRU) to investigate and resolve allegations of misconduct or malfeasance by Service law enforcement officers, law enforcement supervisors, and all Office of Law Enforcement (OLE) staff.
B. Identifies the responsibilities of the PRU and of Service employees, supervisors, and managers for investigating and resolving allegations of law enforcement misconduct.
C. Establishes Service policy and procedures for reporting, investigating, resolving, and maintaining records concerning allegations of misconduct by law enforcement personnel.
5.2 What is the scope of this chapter? This chapter applies to:
A. Special Agents, Wildlife Inspectors, and Refuge Law Enforcement Officers;
B. Office of Law Enforcement staff;
C. Supervisors and managers of Service law enforcement personnel; and
D. Those responsible for investigating alleged misconduct.
5.3 What authorities support the creation and operation of the PRU?
A. 355 Department Manual (DM) 1-6, Departmental Investigations.
B. Standards of Ethical Conduct of Employees of the Executive Branch (5 CFR 2635).
C. Executive Orders 12674 and 12731, Principles of Ethical Conduct for Government Officers and Employees.
D. Inspector General memorandum “Office of Inspector General (OIG) Policy for Referrals from Departmental Offices and Bureaus,” January 23, 2002.
E. Government Organization and Employees, Powers, Departmental Regulations and Oaths to Witnesses (5 U.S.C. 301 and 303).
F. Department of the Interior Internal Affairs Interim Policy, June 23, 2006
5.4 What terms do you need to know to understand this chapter?
A. Allegations of misconduct. An allegation of misconduct is information from any source that a Service law enforcement officer, supervisor in the law enforcement chain of command, or OLE employee has violated any Federal, State, or local statute; Departmental or Service regulation; or any applicable standard of conduct. Such allegations concern not only on-the-job conduct, but conduct off-the-job that may affect Service programs and operations.
B. Categories of allegations. We put allegations of misconduct into three categories:
(1) Category 1: Concerns an alleged violation of law that is likely to result in criminal prosecution. It also includes any allegation of misconduct against a law enforcement officer or manager or OLE staff member at or above the GS-15 level (see Exhibit 1).
(2) Category 2: Concerns alleged misconduct that is serious in nature, but is not likely to result in criminal prosecution. It also includes any allegation of misconduct against a law enforcement officer, manager, or OLE staff member at or above the GS-14 level (see Exhibit 2).
(3) Category 3: Concerns a less serious alleged violation of law, rule, or regulation (see Exhibit 3).
C. Deciding Official: A Service manager who makes a decision on a proposed adverse personnel action or disciplinary action. Typically this person is an Assistant Director, Regional Director, Regional Special Agent in Charge, or their designee.
D. Professional Responsibility Unit (PRU): Is a criminal investigative unit, staffed with Criminal Investigators (Special Agents), located in the Headquarters Office of Law Enforcement. The PRU staff work directly for the Chief, Office of Law Enforcement. The PRU’s primary function is to investigate and conduct inquiries into allegations of misconduct by Service law enforcement officers, supervisors of law enforcement officers, staff, and Special Agents. At the request of an Assistant Director or Regional Director, the Chief, Office of Law Enforcement may task the PRU to investigate internal matters not involving Service Law Enforcement personnel.
5.5 Who is responsible for managing allegations of misconduct against law enforcement officers and staff and the PRU?
A. The Director ensures:
(1) There is policy in place to operate and administer the PRU,
(2) That the Office of Law Enforcement has the appropriate staff to support effective operation of the PRU.
B. The Chief, Office of Law Enforcement:
(1) Assigns staff to the PRU,
(2) Submits PRU policies and procedures to the Department for approval,
(3) Provides overall direction and supervises the PRU,
(4) Coordinates with Regional Special Agents in Charge, Regional Directors, and Human Resources Office personnel about PRU investigations and inquiries.
C. The Assistant Directors and Regional Directors:
(1) Ensure all employees are aware of PRU policies,
(2) Provide staffing to conduct Administrative Inquirieswhen the Chief, Office of Law Enforcement, requests that they perform the inquiries.
(3) Fund Administrative Inquiry training for the managers in their areas of responsibility who will conduct the inquiries,
(4) Coordinate with the Chief, Office of Law Enforcement, about PRU investigations and inquiries.
D. The PRU Special Agent in Charge (see section 5.6 for information about how we appoint PRU members):
(1) Manages processes for reporting and resolving allegations of misconduct against Service law enforcement officers, supervisors in the law enforcement chain of command, and all OLE staff.
(2) Conducts internal investigations and assigns and oversees Service field managers performing administrative inquiries to identify the facts surrounding an allegation of misconduct. When appropriate, findings from these investigations and inquiries support corrective action.
(3) Refers all allegations of misconduct to the Office of Inspector General and the Department’s Office of Law Enforcement and Security Internal Affairs Unit.
(4) Addresses allegations of misconduct received from a variety of sources, including:
(a) Referrals from Service employees, Service field managers, and the OIG; and
(b) Complaints documented in letters, forms we provide, or other communications from the public, Congress, advocacy groups, and others.
(5) Works to prevent employee misconduct by reducing the opportunities for misconduct and educating employees about the consequences.
(6) Addresses potential misconduct through an Early Intervention System (EIS). The EIS is a non-punitive process that identifies and assists employees who exhibit behavior which, if neglected or overlooked, could lead to diminished performance or require disciplinary action.
(7) Provides training on conducting Administrative Inquiries to Service managers who the respective Service manager (Assistant Director, Regional Director, or Special Agent in Charge) identifies as needing training. Also provides refresher training every 3 years.
(a) The office or Region of the manager attending Administrative Inquiry training is responsible for all associated costs (travel, lodging, per diem, etc.).
(b) The PRU must maintain a current roster of Service managers who have completed the training.
(c) The PRU will provide the list, upon request, to the Assistant Directors, Regional Director, and/or Special Agent in Charge.
E. Supervisors and managers of law enforcement officers and law enforcement staff are responsible for:
(1) Reporting Allegations. Service supervisors and managers must report allegations of misconduct against law enforcement officers, supervisors in the law enforcement chain of command, and OLE staff to the appropriate authorities based on the type of allegation. They must:
(a) Report Category 1 allegations immediately to the PRU.
(b) Report Category 2 allegations to the PRU as soon as practical after the incident occurs or the information is received, but no later than the first business work day after occurrence/receipt.
(c) Report Category 3 allegations to the PRU by telephone or facsimile during normal duty hours, usually within 24 hours, but no later than the first business work day after the incident occurs or information is received.
(d) Report all disciplinary actions (letters of reprimand or more serious actions) against law enforcement personnel to the PRU whether or not these actions are the result of an inquiry into a specific allegation of misconduct.
(e) Contact the PRU for clarification if they are uncertain about the category of an allegation.
(f) None of the reporting requirements above prohibit Service employees from directly contacting the Department of the Interior, Office of Inspector General.
(2) Resolution of Allegations.
(a) Service managers who receive an allegation of misconduct may make preliminary inquiries to gather additional information about a Category 1 or 2 allegation or to initiate managerial actions, i.e., administrative leave, re-assign duty responsibilities, etc. They may not undertake investigative action to resolve such allegations unless the PRU authorizes them to do so.
(b) Managers may immediately initiate an administrative inquiry to resolve a Category 3 allegation. Advance authorization from the PRU is not required, although they must report the allegation as specified in section 5.5E(1) above. If the PRU receives any Category 3 allegations directly, it will immediately refer the allegation to the appropriate Service manager for inquiry.
(3) Administrative Inquiries and Corrective Action. Managers must:
(a) Conduct and document administrative inquiries in accordance with the guidelines in sections 5.9 and 5.10 of this chapter.
(b) Ensure that reports documenting administrative inquiries are complete, thorough, and objective.
(c) Send the original report (with exhibits) to the PRU. The PRU will review the report for adequacy and determine whether or not additional inquiry or investigation is necessary.
5.6 How are PRU members appointed and what are the staffing requirements?
A. The Chief, Office of Law Enforcement, assigns staff to the PRU. The PRU is comprised of at least three Criminal Investigators and one support staff member.
(1) One of Criminal Investigators must be a Supervisory Criminal Investigator (GS-1811-14/15) and serve as the Special Agent in Charge.
(2) The other Criminal Investigators must be Senior Special Agents (GS-1811-13/14).
(3) All of the PRU members must complete the following training:
(a) Before working in the PRU: the Criminal Investigator Training Program at the Federal Law Enforcement Training Center.
(b) Within 1 year of assignment to the PRU: a specialized internal affairs training program.
B. The Chief, Office of Law Enforcement, may refer administrative inquiries to Assistant Directors, Regional Directors, or Regional Special Agents in Charge. The PRU oversees these inquires to ensure overall quality and consistency and is available to help resolve any outstanding issues.
5.7 How does the PRU respond to allegations of misconduct? Allegations of misconduct may come from any person or source. The PRU works with Departmental and Service staff to respond to all allegations (see Exhibit 4 for a flow diagram of the overall process).
A. Reporting. The PRU:
(1) Reports all allegations of misconduct to the Department of the Interior (Department) Office of Law Enforcement and Security Internal Affairs Unit and the OIG.
(2) Notifies the Chief, Office of Law Enforcement and the appropriate Assistant Director, Regional Director, or Special Agent in Charge (SAC); the servicing Human Resources office; and the personnel security officer of all Category 1 and 2 allegations involving employees within its purview.
B. Review of Allegations and Assignment of Investigative Responsibility.
(1) If an allegation is within its investigative jurisdiction, the PRU evaluates the allegation and determines the need to resolve it and the most appropriate method for doing so. Depending on the circumstances, the PRU:
(a) Closes the matter with no further action, or
(b) Sends an information referral about the matter to an appropriate Service manager (usually a Regional Director, Assistant Director, or SAC; the servicing Human Resources office; and the personnel security officer), and
(c) Conducts an investigation or requests that Service managers conduct an administrative inquiry.
(2) The PRU must refer an allegation of misconduct for an administrative inquiry to the appropriate Assistant Director, Regional Director, and/or SAC with a cover memorandum signed by the Chief, OLE. The cover memorandum must include a due date for completion. The manager conducting the inquiry must provide the PRU with a Report of Investigation and records of the corrective action taken in accordance with section 5.10B. A manager who believes that such a referral is inappropriate should contact the PRU immediately to request re-evaluation of the assignment.
5.8 What actions may the Service take to resolve allegations of misconduct and what are the requirements for performing those actions?
A. Service Response. When we receive an allegation of misconduct, one or more of the following actions take place:
(1) A preliminary inquiry to determine whether further action under this policy is appropriate. A preliminary inquiry involves the gathering of relevant records, logs, reports, and policy by a supervisor or management official. This process may include obtaining memoranda from individuals who have first-hand knowledge about the alleged misconduct.
(2) An investigation. In an investigation, a trained Criminal Investigator performs a formal review of an allegation of misconduct.
(3) An administrative inquiry. In an administrative inquiry, a management official or his/her/their designee (at the headquarters or Regional level) reviews the allegation under the auspices of the PRU.
(4) An information referral. For an information referral, the PRU SAC refers to management an allegation of misconduct that does not appear to have investigative merit.
(5) After at least a preliminary inquiry, a decision to close the matter without action.
B. Timeliness. Investigators and managers must complete investigations and administrative inquiries as soon as possible but normally not more than 60 days after assignment. If additional time is necessary, the responsible investigator or manager must notify the PRU in writing, stating the reason for the delay and an estimated completion date.
C. Confidentiality. Investigators and managers must not identify complainants, subjects, witnesses, and others involved in a complaint unless absolutely necessary to resolve the allegation. Investigators and managers must limit discussion of the investigation/inquiry to those individuals who must be involved or who have a need to know, such as Service managers (Assistant Directors, Regional Directors, SAC, National Wildlife Refuge System (NWRS) Regional Law Enforcement Chiefs, etc.).
D. Investigative Authorities. Service personnel who conduct investigations and administrative inquiries for allegations of misconduct have broad discretion to determine the most effective and efficient methods for completing their task. They have the authority to:
(1) Interview, question, and take written and sworn statements from Service employees to obtain information to resolve the allegation(s). They also may interview and question private citizens, contract employees, employees of other Federal agencies, members of State and local agencies, and others to obtain necessary information.
(2) Limit the nature and extent of participation by any person in an investigative interview, consistent with Service policy and the requirements of labor relations agreements.
(3) Examine, copy, or remove any documents, files, or other materials that the Service maintains or holds at any time. The investigator must leave a receipt for any original documents removed from official files. If necessary, the person holding the documents may place a photocopy of the original, certified as a true and correct copy of the original, in the file until the original is returned.
5.9 How does the Service document investigations and administrative inquiries?
A. Reports. The investigator prepares reports documenting investigations and administrative inquiries and sends them to the SAC of the PRU. Investigators must limit the reports to fact finding. They may not include recommendations, opinions, conclusions, or advisories. Reports must meet the general standards described in the subsections below. The reviewing official for Reports of Investigation is the SAC of the PRU, and the approving official is the Chief, OLE.
(1) General.
(a) Reports must focus on the facts disclosed in the investigation or administrative inquiry. Limit background information and descriptive material.
(b) Reports must accurately identify people, places, events, dates, documents, and other important matters. There should be no errors in reporting numerical data or in transcribing information from other documents.
(c) The investigator must present the allegations, issues, and investigative facts in a clear and concise document. We recommend presenting the information in chronological order. Write reports in the third person active voice (he, she, they, it), where appropriate.
(d) Provide the full name, title, address, and organization of any person mentioned in the report the first time you use it. If people in the report share a last name, be sure to use the initial of their first name if you mention them again.
(e) List all supporting documentation and exhibits in the report and provide them as attachments.
(2) Introduction. This opening section should be brief and concise (usually no more than two or three paragraphs). It should:
(a) Tell the reader how we received the complaint and the investigation/inquiry started.
(b) Include any information that would help the reader understand the events related to the allegation(s).
(c) List and explain all of the allegations.
(3) Details of Investigation. This section records the facts disclosed by the investigation. The section must:
(a) Address each allegation and the related findings.
(b) Summarize all pertinent evidence.
(c) Note interviews with all witnesses, even if witnesses provided no relevant information.
(d) Include facts that show whether any allegation has been sustained.
B. Recordkeeping.
(1) The PRU maintains the official reports and supporting documentation on all inquiries and investigations conducted by or for the PRU. All materials must be designated “Limited Official Use” and safeguarded at all times during and after an investigation to prevent unauthorized disclosure.
(2) Field offices that maintain copies of reports and other documentation must safeguard them by keeping them in locked storage containers and limiting access to only those people who need access.
5.10 What are the types of investigative findings and how does the Service respond to them?
A. Types of Findings:
(1) Sustained: When the Deciding Official determines the allegation as true by a preponderance of the evidence. (See section 5.4C for more information on the Deciding Official.) A matter is proven true by a preponderance of the evidence when the evidence supporting it is of greater weight or is more convincing than the evidence opposing it. It is the degree of proof that is more probable than not. The number of witnesses does not determine the preponderance of the evidence, but the significance and weight of all evidence does.
(2) Not Sustained: When the Deciding Official does not determine the allegation as true by a preponderance of the evidence.
(3) Exonerated: When the Deciding Official determines that the incident occurred but was lawful and within policy.
(4) Unfounded: When the Deciding Official determines that the allegation was false, not factual, or that the accused employee was not involved in the incident.
(5) Other: When a Deciding Official determines that administrative or legal justification exists.
(1) The PRU sends a Report of Investigation through the Chief, OLE to the appropriate Service manager for consideration for corrective action.
(2) The Service manager should consult with the servicing Human Resources Office if it is determined disciplinary action is necessary in accordance with 227 FW 2, Disciplinary and Adverse Actions (rescinded), if the allegation(s) are sustained.
(3) The Service manager must provide the PRU the following information within 120 days after receiving the Report of Investigation:
(a) The nature and date of corrective action taken, such as disciplinary or adverse action, or systemic, such as changes in procedures;
(b) All documentation associated with a disciplinary or adverse action (i.e., proposal letter, decision letter, Notice of Personnel Action [SF-50], settlement agreement, last chance agreement, etc.) for case closure.
(4) When an investigator identifies conditions that permit or contribute to misconduct or the perception of misconduct, the Service will take a systemic corrective action. We make systemic corrections through policy to reduce vulnerability to fraud, waste, abuse, and mismanagement. Examples include revising procedures, tightening internal controls, alteration of methods, increased oversight or supervision, and development and implementation of training programs.
5.11 What are the obligations of all employees under this policy?
A. Reporting.
(1) All Service employees must immediately report either verbally or in writing any allegation of misconduct against a law enforcement officer, supervisor in the law enforcement chain of command, or OLE staff member. Employees should report such allegations:
(a) To their supervisor or a higher-level Service official in their chain of command;
(b) Directly to the PRU. Visit the Service PRU Website for contact information; or
(c) Directly to the OIG by calling 1-800-424-5081.
(2) The reporting requirement established in 5.11A(1) above does not prohibit Service employees from reporting allegations of misconduct to other appropriate authorities.
(3) Service employees who report allegations of misconduct may request confidentiality. We grant confidentiality unless disclosure is unavoidable.
(4) Federal law prohibits retaliation against employees who provide information to the PRU. Employees who believe that they have experienced such retaliation should report it to the PRU, the OIG, or the Office of Special Counsel.
B. Cooperation.
(1) Employees must cooperate fully and reply truthfully in investigations and administrative inquiries. Employees who refuse to cooperate may be subject to administrative action, including termination (see 227 FW 2).
(2) Employees may not take any action that might interfere with or obstruct investigations and inquiries.
(3) 5 U.S.C. 303 authorizes those conducting PRU investigations and administrative inquiries to require employees to take oaths and provide sworn testimony. Those conducting the investigations and inquiries may tape record testimony.
(4) Employees and their representatives may not tape record or otherwise electronically monitor an official interview conducted by the PRU or under its auspices.
(5) When directed, employees must keep information and communication about PRU investigations or administrative inquires confidential. Following is the confidentiality warning we read to employees:
You are being requested to provide information by Special Agents of the Professional Responsibility Unit (PRU), Fish and Wildlife Service (FWS), United States Department of the Interior, concerning allegations of potential misconduct violations by a Service law enforcement officer.
You are hereby directed not to disclose to anyone, except for an attorney whom you have retained to represent your interests in this matter, that:
1. You have been requested by representatives of the PRU to provide information concerning this matter, and
2. The fact that the PRU is conducting an investigation into this matter.
You retain the right to discuss this matter with your attorney.
Failure to comply with this directive may be grounds for administrative action against you.
(6) Garrity Warning. We use the Garrity Warning when we are questioning an employee who is not in custody about matters that could result in criminal prosecution. The PRU must give this warning prior to a voluntary interview (Garrity v. New Jersey, 385 U.S. 493 (1967)). The employee may refuse to answer questions if they think their answers may incriminate them. We may not discharge or discipline an employee solely for remaining silent. However, in an administrative proceeding, we may consider the employee’s silence for its evidentiary value that is warranted by the facts surrounding the case. The Garrity warning is often referred to as a “non-custodial Miranda Warning” because the employee is not in custody when the interview is given. We must tell the employee that the interview is strictly voluntary and that they may leave at any time. Prior to the interview, the PRU must read the following warnings to the employee:
You are being contacted/interviewed to solicit your cooperation in an inquiry regarding information pertaining to allegations of misconduct or improper performance of official duties. You are advised the authority to conduct this interview is contained in Title 50, Code of Federal Regulations, Subchapter A, Section 1.2, and Title 43, Code of Federal Regulations, Section 1466. This interview is confidential. The matter under investigation could also constitute a violation of law which could result in criminal prosecution of responsible individuals. You have the right to remain silent. If you do decide to answer questions or make a statement, you may stop answering at any time. Although you would normally be expected to answer questions regarding your official duties, in this instance you are not required to do so. Your refusal to answer on the ground that the answers may tend to incriminate you will not subject you to disciplinary action by FWS or the Department of the Interior. Any statement you furnish may be used as evidence against you in any future criminal proceeding or agency disciplinary proceeding or both.
(7) Kalkines/Reverse Garrity Warning. We use the Kalkines or “Reverse Garrity” Warning when an employee is compelled to provide information that has existing or potential criminal and administrative consequences (Kalkines v. United States, 200 Ct. Cl. 570 (1973)). This type of warning amounts to a “use immunity” for any act or omission revealed in the interview. Because only the Department of Justice has the authority to grant an individual use immunity, prior to issuing this type of warning, the investigator must first contact the appropriate U.S. Attorney’s Office and receive a letter of declination for the individual the investigator wants to interview. PRU investigators and Service managers must first receive written permission from the Department of Justice before they may give a verbal or written Kalkines warning during an administrative investigation. Not all employee interviews require this type of warning. This warning is only necessary when the investigator wants to compel the interviewee to answer questions or make a statement. If failure to provide a statement or answers may result in disciplinary action (including removal from employment) against the employee, this type of warning is necessary. If there is no threat of disciplinary action against the employee for failure to give a statement or answer questions, then Kalkines warnings, and the use immunity associated with it, are not necessary. If Kalkines warnings are given, an individual may be subject to criminal prosecution for giving false statements or answers (18 U.S.C. 1001). Prior to the interview, the PRU investigator or Service manager reads the following Kalkines warnings:
This is an administrative inquiry regarding allegations of misconduct or improper performance of official duties. The purpose of this interview is to obtain information, which will assist the determination of whether administrative action is warranted. You are advised the authority to conduct this interview is contained in Title 50, Code of Federal Regulations, Subchapter A, Section 1.2, and Title 43, Code of Federal Regulations, Section 1466. This interview is confidential.
You are going to be asked a number of specific questions regarding the performance of your official duties. You have a duty to reply to these questions and disciplinary action, including dismissal, may be undertaken if you refuse to answer or fail to reply fully and truthfully.
Neither your answers nor any information or evidence gained by reason of your answers can be used against you in any criminal proceeding, except that if you knowingly and willfully provide false statements or information in your answers, you may be criminally prosecuted for that action. The answers you furnish and any resulting information or evidence resulting may be used in the course of disciplinary proceeding which could result in disciplinary action, including dismissal.
(8) Under the Departmental guidelines for employee discipline, we may discipline an employee for failure to cooperate with administrative investigations, even if the employee has not received Kalkines warnings. In situations where there is no potential criminal implication, Kalkines warnings are not necessary, and we may discipline an employee for acts or omissions revealed, or for failing to cooperate with the investigation. See 370 DM 752 penalty 19.
C. Witness Interviews.
(1) The PRU may interview employees as witnesses based on their knowledge, expertise, or experience. Employees are responsible for providing information to the PRU about the subject at issue.
(2) The PRU notifies employees who they want to interview as witnesses by sending their supervisor a memorandum titled “Notice to Appear” (also see section 5.12B below and Exhibit 5). The memorandum explains that the employee must appear before an investigator as a witness and specifies a date, time, and location. The employee must acknowledge the memorandum by signing it and returning it to the PRU.
5.12 What are the rights and responsibilities of accused employees?
A. General. Employees who are the subject of PRU investigations or administrative inquiries have the same responsibilities to cooperate as outlined in section 5.11B.
B. Notification.
(1) The PRU must notify an employee that he/she/they are the subject of an investigation at the beginning of any interview.
(2) To arrange an interview, the PRU sends the employee’s supervisor a memorandum titled “Notice to Appear” (see Exhibit 5). This memorandum:
(a) Directs the employee to appear before an investigator for an interview.
(b) Informs the employee that he/she/they are the subject of the investigation.
(c) Advises the employee of his/her/their right to representation.
(d) Instructs the employee to acknowledge receipt of the memorandum by signing it and returning it to the PRU.
C. Interviews.
(1) Before an interview begins, the PRU investigator again advises the employee that he/she/they are the subject of the investigation and that he/she/they have the right to representation.
(2) The investigator must inform the employee of the nature of the inquiry and, if known, whether the investigation could lead to criminal or administrative action.
D. Communication of Results.
(1) When a Deciding Official finds that an allegation of misconduct is not sustained, is exonerated, or is unfounded, the appropriate Service manager and/or Human Resources office informs the employee in writing that the matter is closed and that no information about the allegation will appear in his/her/their Official Personnel Folder. The Service manager or Human Resources office will send a copy of the notification to the PRU to put in the case file.
(2) The PRU does not notify employees when a Deciding Official sustains allegations of misconduct. The PRU sends its Report of Investigation to the appropriate Service manager for corrective action under 227 FW 2, Disciplinary and Adverse Actions. The PRU also sends a copy to the servicing Human Resources office and the personnel security officer.