'gf,} ri - n. The Honorable Patrick J. Leahy The Honorable Lamar S. Smith Page 2 and removal. The law requires that a federal agency follow a multiple--step process if the agency seeks to discipline an employee by imposition of a suspension, demotion, or removal. lf OPR makes a finding that a Criminal Division prosecutor or Assistant United States Attorney (AUSA) engaged in professional misconduct, the matter is referred to the Department's Professional Misconduct Review Unit After reviewing the evidence, a "proposing official" within the PMRU makes a recommendation concerning disciplinary action, if any. An employee who is the subject of the disciplinary action is entitled to written notice of the proposing official's recommended action, including specific reason(s) for the proposed discipline, and also entitled to respond to the proposal both orally and in writing. A "deciding official" then must consider the proposal and the responses of the employee in reaching a discipline decision. The deciding official must specify in writing the reasons for the decision and advise the employee of any grievance or appeal rights. An employee who is suspended for more than 14 days, demoted, or removed may appeal the disciplinary decision to the Merit Systems Protection Board (MSPB). In Douglas v. Veterans Admfnisrratirin, 5 M.S.P.R. 280 (1981), the MSPB set forth certain factors that the proposing and deciding officials must consider in determining the appropriate discipline. Those factors include: l. 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 employees 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 the applicable agency table of penalties; 8. The notoriety ofthe offense or its impact upon the reputation ofthe 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. Potential for the employee's rehabilitation; 1. 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. . a.v .. . . I fill=lr;-ggIIQr`Jl-.4..-- -- -- - . i'-1.- b=-Vjg,.4-.. .. -. . .spun I. ., -..-.. ., . VJgS_Fr' ij? rf', in iiQ-4_4,:PHP5 fee-- - 2_ nwski.- --.-. . . . ..: .. .--. . ..LKHNI1Tb-.. 51.2 . .. -. .-1.1 rr cw. . mnpinhn Jl.-5-.. 4 nl . --.- . 4 4 . ZL?.Ei.4-.. .. V.-.. .. si}? QI The Honorable Patrick J. Leahy The Honorable Lamar S. Smith Page 4 Failing to disclose information contained in a February 28, 2007 FBI 302 and a 2006 Internal Revenue Service Memorandum of Interview regarding Senator Stevens's willingness to pay bills that VECO might have provided; and Failing to disclose information provided by witness Robert "Rocky" Williams -- a VECO employee who supervised the construction on Senator Stevens's property -- during trial preparation interviews that Williams thought that VECO's costs would be added to the Christensen Builders invoices prior to those invoices being sent to Senator Stevens. DPR likewise found that AUSA Goeke engaged in reckless professional misconduct by failing to disclose the Williams infomation. OPR thoroughly analyzed the evidence as to whether the misconduct by AUSA Bottini or AUSA Goeke was intentional but concluded that the evidence did not support such findings. With respect to the other individual prosecutors, OPR made no findings of professional misconduct and, with one exception, did not conclude that any of those prosecutors had exercised poorjudgment. OPR did conclude that one of the supervisors in the Public Integrity Section (PIN) exercised poor judgment by failing to supervise certain aspects of the disclosure process. OPR refrained from making any findings concerning professional misconduct or poor judgment as to one of the PIN line attorneys because that attorney passed away prior to the completion ofthe report. The process concerning the conduct of an FBI Special Agent is not yet complete. Therefore, we cannot report on those findings at this time. OPR's findings and the rationale that underlies them are more fiilly set forth in the enclosed redacted report of investigation. I Disciplinary Decisions Regarding Stevens Proset?ntors? Because it found that AUSAs Bottini and Goeke had engaged in reckless professional misconduct, GPR forwarded the report to the Professional Misconduct Review Unit (PMRU) for consideration of disciplinary action. Kevin Ohlson, Chief of the PMRU, determined preliminarily that the OPR findings were supported by the evidence and the law. He therefore assigned the matter to PMRU attorney Terrence Berg for issuance of a disciplinary proposal. Mr. Berg solicited Dotrgia.s factor information from the United States Attorneys inthe current districts. After receiving the Douglas factor information and reviewing the report, lvlr. Berg concluded that he disagreed substantively with OPR's conclusion that the AUSAs committed professional misconduct. Consistent with procedures in the PMRU, Berg submitted a draft memorandum to Chief Ohlson. After reviewing Berg's draft memorandum, Chief Ohlson remained convinced that the OPR findings of misconduct were supported by the evidence and the law and determined that it would be inappropriate to permit Mr. Berg to reject those findings. Therefore, Chief Ohlson sought authorization from the Deputy Attorney General (DAG) to serve as the proposing official. On December 3, 20l the DAG authorized Chief Ohlson to serve in this capacity and also directed Chief to provide Mr. Berg's draft to the AUSAs if he The DPR report of investigation and other enclosed documents have been redacted to address privacy, grand jury, and other confidentiality concerns. Because no professional misconduct findings were made against the individuals referenced in this paragraph, we have not included their names in this letter, although their names have been left unredacted inthe enclosed documents. -- { v_ Tr 52,* ill 3 '4 I d' J-