A Review of Allegations of a Double Standard of Discipline at the FBI
November 15, 2002
Office of the Inspector General
OIG RECOMMENDATIONS AND CONCLUSIONS
We believe that the evidence showed that in several FBI disciplinary matters, including several important and well-known cases, senior managers were afforded different and more favorable treatment than less senior employees. Various factors contributed to this difference in treatment.
First, by law SES members cannot be suspended for less than 15 days. As a result, we believe that many SES managers at the FBI receive letters of censure when lower-level employees would receive short suspensions for similar conduct
Second, during the FBI adjudication process, significant weight is given to the long and outstanding records of senior FBI managers when considering the Douglas factors. Because less senior employees may not have such lengthy records, this benefit may be weighted heavily in the favor of senior managers.
Third, we believe that some of the specific cases that we examined indicate that SES Board members gave undue weight to the explanations of SES members who were subjects of investigations, possibly because of a reluctance to find that a fellow SES member "lacked candor."
Fourth, we were told that the former SES disciplinary system may have fostered a double standard because different decision-makers were on each disciplinary board that was convened, and the Board members had different levels of experience in handling personnel matters. As a result, the Board members' approach often deviated from the strict precedential approach used by FBI OPR for non-SES employees. This problem was exacerbated by the fact that, prior to the changes in August 2000, FBI OPR did not submit factual findings or conclusions about misconduct to the SES Disciplinary Boards. The Boards therefore had considerable flexibility in interpreting the evidence presented to it. This led to the perception that in several cases, such as in the Potts retirement party matter, the Board manipulated the facts to achieve a lenient disciplinary result.
Fifth, several individuals who sat on SES Disciplinary Boards told us that they believed that a letter of censure for a senior manager is, in fact, a significant punishment that could effectively end a manager's career. They did not believe that a letter of censure had the same effect on lower-level employees' careers. We were unable to validate this perception or determine whether a letter of censure had a more serious impact on the career of a senior manager than a less senior FBI employee. However, we believe that the existence of this belief led some SES Board members to conclude that a letter of censure was an appropriate punishment for FBI managers, even though a harsher punishment would normally be given to lower-level FBI employees.
Sixth, the ability of FBI employees to resign or retire during an investigation or at any time prior to having discipline imposed fed the perception that certain managers escaped punishment. This problem is exacerbated when the disciplining official factors in a pending retirement when determining punishment, as we saw in several cases of SES discipline that we reviewed.
We believe that the August 2000 reforms to the FBI disciplinary system that abolished the two-track system will correct some of the problems with the former FBI SES disciplinary system. Discipline for SES and non-SES employees is now handled according to the same system. We believe this should help to alleviate some of the perception of a double standard of punishment.
Moreover, in July 2001 the authority to investigate misconduct of FBI employees was changed. Prior to that time, the FBI investigated its own misconduct. Unlike in other DOJ components, the OIG could not investigate allegations of misconduct in the FBI or the Drug Enforcement Administration (DEA) absent specific permission from the Attorney General. In July 2001, the Attorney General expanded the OIG's jurisdiction to investigate misconduct throughout the Department, including in the FBI and the DEA.28 This change was codified in statute in the DOJ Reauthorization legislation that was signed by the President on November 2, 2002.
As a result, the OIG now investigates most allegations of misconduct against high-level FBI officials. We believe that the OIG's involvement and oversight of the FBI will help ensure that misconduct by high-level FBI officials is not dismissed or treated more leniently than allegations against lower-level FBI employees.
However, we believe that several additional issues should be considered by the FBI and the Congress to help reduce the reality or the perception of a double standard of discipline in the FBI. First, the current system of discipline provides for SES employees to have appeal rights to the FBI's Inspection Division or a Disciplinary Review Board. The Assistant Director of the Inspection Division or the Board may "independently redetermine the factual findings and/or the penalty imposed." If a new penalty is imposed, however, it must be consistent with applicable precedent. Both the Assistant Director of the Inspection Division and the Board are required to document their findings in writing and provide the employee a written decision. But there is no requirement that the Assistant Director or the Board must provide written justification for their findings or explain why they are altering the disciplinary decision made by FBI OPR.
We believe that a clear written justification explaining why the Assistant Director or the Disciplinary Review Board changed the disciplinary decision on appeal should be required. Also, any changes regarding factual findings or penalties should be accompanied by a written justification that explicitly describes the reasons for the changes. This would ensure that the judgment of the Assistant Director or the Board is not simply substituted for that of the decision-maker.
Second we continue to have some concerns about the composition of the Disciplinary Review Boards because they still include only SES members. In August 2000, the separate SES Disciplinary Review Boards for SES employees were eliminated, and discipline in all cases is now appealed to Boards that are composed of the Assistant Director of the Investigation Division, an SES member chosen by the subject, and an SES member chosen by lot. While this is a marked improvement on the previous system, it still results in all discipline being decided by Boards consisting solely of SES members. Because of this makeup, there is still the danger of a perception that SES employees who come before the Boards may be treated less harshly. We believe the FBI should consider options to alleviate this perception, such as including a non-SES member on the Boards or including someone from outside of the FBI, such as an official from the Department.29
Third, we believe that the FBI should have a full range of disciplinary options with which to discipline SES officials. The current legal restriction on the suspension of SES employees - that they can only be suspended for 15 days or more - ties the hands of deciding officials. The outcome is that SES employees often receive lesser punishments than deserved because the deciding official must choose between a letter of censure and a 15-day suspension. We think Congress should change this limitation. We note that such a revision is part of an FBI Reform Bill introduced by Senators Leahy and Grassley in February 2002. 30
Fourth, the FBI needs to ensure that any policy changes that are made with regard to appropriate discipline are properly disseminated to its employees and consistently applied. As we mentioned on page 15 of this report, in a 1996 SES case the FBI instituted a change in the standard discipline for the offense of losing a pager. However, this changed precedent was not consistently applied, and in several cases lower-level FBI employees received greater discipline than FBI managers for this offense. If there is a change of precedent, it needs to be uniformly enforced by the FBI.
Fifth, the FBI must attempt to resolve the conflict between applying the Douglas factors and the "bright line" policy. In January 1994, Director Freeh issued a bulletin to all supervisors in the FBI about its standards of conduct and discipline. He stated that he had determined that the FBI had been too tolerant of certain types of behavior that are fundamentally inconsistent with continued FBI employment. He stated that he was drawing a "bright line" which would serve to put all employees on notice that he believed in the "simple truth that lying, cheating, or stealing is wholly inconsistent with everything the FBI stands for and cannot be tolerated." He then set forward several examples of behavior for which employees could expect to be dismissed. These included lying under oath, voucher fraud, theft, and material falsification of investigative activity or reporting.
However, the uneven application of this bright line policy seems to have increased the perception of a double standard. Some FBI senior managers involved in conduct that seemingly violated this policy, such as in the Potts party case, were only given letters of censure. A lack of uniformity in applying the bright line policy necessarily creates a suspicion that favoritism or "cronyism" is the reason that it is not being followed. We found, however, that managers were not the only FBI employees who benefited from a deviation from the strict requirements of the bright line policy. We found cases in which non-SES employees were punished but not terminated even when they had violated one of the bright line categories. We believe the FBI should determine whether it wants to maintain a "bright line" policy or consider the employee's history and mitigating and aggravating circumstances, as outlined in the Douglas factors. If the FBI chooses to follow its current bright line policy, it is important that it do so consistently.31
Sixth, the FBI should consistently apply precedent from non-SES cases to SES disciplinary matters. FBI policy instituted in August 2000 states that "[t]he same standards for evaluating evidence will be consistently applied to all employees with due regard for the increased responsibilities and obligations of a senior executive." We believe this should be interpreted as meaning that the discipline that is appropriate in non-SES cases not only be considered but in most cases should act as the minimum punishment that should be imposed in SES cases. Greater punishment may be warranted because a senior official presumably should exercise even stricter adherence to duty and ethical regulations.32 Lesser punishment may be warranted, but if so the reasons should be carefully documented.
The expectation within the FBI's rank and file appears to be that an SES employee should be disciplined in the same manner as a lower-level employee who engaged in similar conduct. If this expectation is not met, the suspicion of favoritism and cronyism arises. We recognize that in many cases, an SES employee will have had a long and successful history with the FBI, a factor that can be considered pursuant to the Douglas factors. Furthermore, the FBI's investment in senior FBI executives in terms of training and experience is substantial. However, the FBI should not allow consideration of a manager's record to routinely outweigh the equally important consideration that managers should be held to higher standards than other employees.
Seventh, while the FBI manual clearly anticipates that an SES employee may be the subject of a greater penalty because of the employee's leadership position, FBI decision-makers seemed to believe that a lesser penalty is acceptable because of the effect any penalty will have on the individual's career. We have concerns about this justification because, in part, we had difficulty substantiating the claim that a letter of censure would have a significant impact on the career of a senior-level FBI employee. Furthermore, we believe that this rationale can be easily abused and could inevitably lead to managers being treated more leniently than other employees. We believe that it is better to discipline FBI employees based on the merits of the case and precedent, rather than using speculation regarding the impact on an individual's career as a mitigating factor.
Eighth, we encountered many instances where senior FBI employees retired while under investigation for misconduct, and the disciplinary process ceased. We believe the FBI should consider continuing the disciplinary process in certain cases, even when an FBI employee retires while under investigation, so that a final disciplinary decision is reflected in the employee's personnel file.
We recognize that retirement or resignation while the disciplinary process is ongoing is not limited to senior FBI employees. However, they are more likely to be in a position to retire, and we saw many instances where they did so to avoid discipline. Although we do not believe that FBI resources should be expended in all misconduct cases to reach a final disciplinary decision when the subject has retired, we believe that the FBI should consider doing so in some cases, particularly when some FBI employees have received discipline for their actions while others retired or resigned to avoid discipline in the same case.
Ninth, we saw cases where individuals had received significant promotions or bonuses despite the fact that they were the subject of an ongoing investigation. This was especially pronounced in the Ruby Ridge case, where Potts was promoted to Deputy Director while under investigation and many other subjects received bonuses and promotions while under investigation. We believe that promotions and bonuses for individuals while under investigation for serious allegations of misconduct should be carefully considered, particularly when the allegations appear to be supported by significant evidence.
Tenth, it is critical that the FBI establish guidelines for when FBI employees should be recused from participating in investigations or disciplinary decisions regarding other FBI employees. FBI policies do not provide clear guidance on this issue. Our interviews with FBI officials indicated that the FBI normally leaves it to individual employees to decide when to recuse themselves if they believe there is a reason why they cannot be impartial. We believe there should be a clearer approach to the question of conflicts and a recognition that the appearance of a conflict can be as damaging as an actual conflict of interest. We think it useful for the FBI to formulate a policy, available to all employees, describing guidance on this issue.33
Eleventh, given the strong perception among FBI employees of the existence of a double standard and the fact that our review found evidence supporting that belief, we recommend that the FBI establish a mechanism to regularly review SES and non-SES discipline. For example, the FBI's Inspection Division or the Justice Management Division could analyze samples of cases of senior managers compared to non-managers, with the results being reported to the OIG for an independent review.
Finally, we recognize the difficulty in eliminating completely the perception that upper-level managers in the FBI are treated more favorably than their non-SES counterparts, particularly given the recent and well-known cases that we have described in this report. We believe the elimination of the SES Board should assist in the effort to equalize the treatment of all FBI employees, as should the OIG's expanded jurisdiction in the FBI. But the FBI should continue to be mindful of the damage that is done when employees believe that the disciplinary system is unequal or unfair. We believe that the FBI should strive to reduce that concern, and we believe that full implementation of these recommendations will help the FBI address this serious issue.
|Glenn A. Fine|