A Review of Allegations of a Double Standard of Discipline at the FBI
November 15, 2002
Office of the Inspector General
This report examines complaints from Federal Bureau of Investigation (FBI) employees alleging that the FBI's system of discipline was unfair because FBI senior managers were treated more leniently than rank and file employees. In particular, members of the Senior Executive Service (SES) were alleged to receive light or no discipline while lower-level employees were treated more harshly for similar offenses. Among the concerns was that the FBI used a separate disciplinary system for SES members in which other SES members sat in judgment of their SES colleagues.
In 1999 the FBI's Law Enforcement Ethics Unit (LEEU), a division of the FBI's Office of Professional Responsibility (OPR), conducted an analysis to determine whether the FBI had such a "double standard" of discipline. The LEEU examined statistics on misconduct investigations and the discipline imposed for SES and non-SES employees. The LEEU also examined the outcome of several cases involving investigations of senior managers for various alleged acts of misconduct. In September 1999, the LEEU issued an internal report stating that it had concluded that senior FBI managers received different and more favorable treatment than other employees.
In August 2000 FBI Director Louis Freeh made several changes to the disciplinary system, including disbanding the separate SES disciplinary process. Currently, the discipline process for managers, line agents, and support personnel is similar, although there are still a few differences.
In order to review the allegations of a double standard of discipline in the FBI, the Office of the Inspector General (OIG) first reviewed the LEEU double standard report and carefully examined the cases it put forward as examples of a double standard. We also reviewed more recent cases in which SES-level employees were disciplined. In addition, we thoroughly reviewed the investigation and discipline in the "Ruby Ridge" and "Potts retirement party" cases, two well-known cases that generated significant controversy inside and outside the FBI about the discipline imposed on FBI employees. During our review, we interviewed many FBI officials involved with the disciplinary process, including the authors of the LEEU double standard report, and many FBI and Department of Justice (DOJ) managers.
This report describes the results of our examination. In Chapter Two of the report, we briefly describe the FBI disciplinary system, including recent changes to it. In Chapter Three, we discuss the LEEU report, including two of the examples of SES discipline cases that suggested a double standard of discipline. We also discuss our review of recent disciplinary actions involving SES employees since changes in the disciplinary process were made in August 2000. Chapter Four describes in detail the Potts retirement party case, and our analysis of the outcome of that disciplinary process. Chapter Five examines the Ruby Ridge case, including the investigations conducted in the aftermath of the Ruby Ridge matter, the discipline that was imposed at various stages of the process, and our evaluation of the ultimate discipline imposed. In Chapter Five, we also describe the bonuses and promotions that the FBI awarded to subjects of the Ruby Ridge internal investigations while those investigations were still pending. In Chapter Six, we describe our overall conclusions and recommendations as to the FBI's disciplinary process.1
In sum, we did not find sufficient evidence to conclusively establish that the FBI systematically favors SES members in the discipline process. Because of the low number of cases involving SES members, we could not reach such a conclusion based on a comparison of similar cases. Moreover, differences in individual facts made it difficult to fairly compare cases. Another impediment to conducting a definitive comparison is the fact that legal requirements restrict the discipline that can be imposed on members of the SES throughout the government. Federal regulation states that a member of the SES cannot be suspended for less than 15 days. The practical effect of this law is that in SES cases, FBI deciding officials must choose between a letter of censure (essentially a written reprimand) and a suspension of 15 or more days. Because it is not possible to impose a short suspension in SES discipline cases as it is in non-SES discipline cases, a true comparison of SES and non-SES disciplinary sanctions is even more difficult. In addition, we found that senior managers are able and more likely to retire while under investigation, thereby avoiding discipline.
We did conclude, however, that the FBI suffered and still suffers from a strong, and not unreasonable, perception among employees that a double standard exists within the FBI. This perception was fostered in large part by the existence of a dual system of discipline that existed prior to August 2000, in which SES members were judged only by other SES members. Furthermore, our review describes several troubling cases in which the discipline imposed for SES employees appeared unduly lenient and less severe than discipline in similar cases involving non-SES employees. In particular, FBI senior managers were not fired or harshly disciplined in either the Ruby Ridge or Potts retirement party cases. We believe that in these cases, FBI senior managers were afforded different and more favorable treatment than less senior FBI employees would have received. These cases, which were well known within the FBI, fed the perception that senior managers were treated more favorably than subordinate employees.
We believe the August 2000 changes will help address to some extent the perception of a double standard, as well as any actual bias that existed while the dual system was in place. We also believe that the Attorney General's decision in July 2001 to expand the jurisdiction of the OIG to investigate misconduct in the FBI will help address issues relating to a double standard of discipline because the OIG will be able to review and handle most misconduct allegations against senior FBI officials.
We are still concerned, however, that to the extent the new system still provides SES members with a right of appeal of discipline to a board made up of three SES members, one of whom the appellant selects, the perception and possibly the reality may be that a double standard of discipline may continue to exist. We also believe that the FBI's legal inability to impose a suspension on SES members of less than 15 days will continue to impede its ability to discipline senior managers appropriately and will continue to foster the perception of a double standard of discipline. At the end of this report, we make 11 recommendations regarding these and other issues that we believe will assist the FBI in moving further to a disciplinary system that is fair and consistent, and that is also perceived as fair and consistent.