BCA Guidance: Reducing the Level of a Concern

Pursuant to the Charter, within five days of OCS receiving a concern, the OCS Director must determine whether the matter should move forward and, if so, the appropriate level of review. This is done at a very preliminary stage. The Charter recognizes that if the concern proceeds, the ensuing investigation led by the Conduct Investigator may reveal facts different from those that were available to the Director in making these initial determinations. Accordingly, the Charter provides that, during the course of the investigation, the Conduct Investigator may request that the Director “assign a higher level of review for the concern.” Section IVB.3. And, in the opposite direction, if the actual evidence reveals that no charge is appropriate after all, the Charter instructs the Conduct Investigator not to pursue charges—regardless of any decision the Director made based on the preliminary information available during the initial five days. The Charter does not, however, explicitly address whether, based on facts that emerge during an investigation, the Conduct Investigator may request that the Director assign a lower level of review for the concern.

With this Guidance, the BCA confirms that, just as a concern can be dropped based on facts learned through the investigation, and just as the level of review can be increased based on facts learned through the investigation, the level of review can be decreased based on facts learned through the investigation. Therefore, the BCA now makes it clear that OCS is empowered to reduce the level of a violation whenever the OCS Director concludes that the level would not have been set that high had the Director been privy at that time to the information that has emerged in the time since the level was initially set.