WATCH

THE DOUGLAS FACTORS
by Ed Magnuson

Administrator Thomas Constantine is now trying to schmooze cajole, and inveigle a disenchanted agent work force by forwarding personal letters of commendation for outstanding achievement. However, the Administrator's vain attempt to calm the waters hit rock bottom when he sent his congratulations for a job well done to a Special Agent (see Footnote #1). Although the Administrator's praise of (this S/A) was well deserved, (The S/A) was at the time at home on administrative leave waiting to hear if he was to be terminated. Allegedly, Mr Constantine had to hold back a shiver when he learned of the almost ludicrous position he had been put in by SAC Cello Boccia who had recommended the laudatory letter. However with the assistance of a competent attorney and a set of facts which did not support the severity of the punishment, the proposed termination was reduced to a 14 day suspension.

I have been told that 1 reason for the chasm between proposed discipline and final decision is Administrator Constantine's philosophy that part of agent's punishment should be a level of expense and distress of fighting the charges brought against him or her. If this be true, the Administrator should heed the words of the French writer Jean Paulhan, "You can squeeze a bee in your hand until it suffocates; but it will not suffocate until it has stung you."

For the general benefit of DEA WATCH's many readers and for the particular enlightenment of those in DEA who propose and determine discipline, I am going to restate the "Douglas" factors. In DOUGLAS v. VETS ADMINISTRATION (5 MSPB313, 1981), the Merit Systems Protection Board ID'd 12 factors as relevant for determining the appropriateness of a penalty:

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 for gain, or was frequently repeated.

2- The employee's job level and type of environment.

3- The employee's past disciplinary record.

4- The employee's past work record.

5- The effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon the supervisor's 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 any agency table of penalties.

8- The notoriety of tile 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 of fence.

10- Potential for the employee's rehabilitation.

11- Mitigating circumstances surrounding the offense.

12- The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

In an "Interview on Justice in America," former Chief Justice Earl Warren wisely professed, "... government can erode just by a succession of little things that happen, just like a hillside. Those are the things that put us in danger, because when the erosion becomes noticeable, the weakness has developed." And the non-attention to the "Douglas" factors would be just another "little thing" that would contribute to the erosion already wearing away at DEA. And that erosion has already become noticeable!

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FOOTNOTES:

  1. The name of this S/A was deleted on 26 Aug 2021 by DEA Watch after DEA Watch received an email from an S/A stating that Mr. Magsnuson got the information about him "wrong". Because Mr. Magnuson and Mr. Constantine are both deceased they could not be contacted by DEA Watch for clarification. (Althoug this report was first published by DEA Watch approx 15 years ago, the S/A who wrote DEA Watch never contacted DEA Watch before today in 2021 about Mr. Magnuson's commentary.)