A Review of Allegations of a Double Standard of Discipline at the FBI
November 15, 2002
Office of the Inspector General
FBI DISCIPLINARY STRUCTURE
Prior to March 1997, FBI OPR, which was part of the FBI's Inspection Division, was charged with the responsibility for investigating employee misconduct matters. Adjudication was handled by a different unit, the Administrative Summary Unit, which was part of the FBI's Administrative Services Division.
In March 1997, the FBI's disciplinary process was significantly reorganized when FBI Director Freeh instituted several changes to that system. OPR became a freestanding entity, reporting directly to the FBI Deputy Director, and it was given responsibility not only for investigating misconduct but also for proposing and deciding certain disciplinary action. An Assistant Director and a Deputy Assistant Director headed the new OPR, which was divided into an investigations component and an adjudications component.
As part of the 1997 changes, the FBI developed two systems of adjudicating disciplinary matters - one for members of the SES and one for all other employees.2 Under the two-tier system, allegations of serious misconduct against non-SES employees were adjudicated by OPR. The OPR Investigative Units investigated and determined the relevant facts, and then sent the results of its investigation to the OPR Adjudication Units, which evaluated the evidence and recommended discipline. As part of its analysis, the Adjudication Units considered the discipline imposed in precedent cases; that is, prior cases in similar categories of misconduct. The discipline imposed had to be approved by the Deputy Assistant Director or the Assistant Director of OPR.3
Non-SES employees had the right to appeal OPR's decision to the Assistant Director of the FBI's Inspection Division, who would convene a Disciplinary Review Board if the employee was suspended for more than 14 days. The Disciplinary Review Board was composed of three SES members and was chaired by the either the FBI's Inspection Division's Deputy Assistant Director or Assistant Director. The decisions of the Inspection Division or the Board constituted the final agency action.
The disciplinary process for SES employees was different. SES members accused of misconduct were investigated by OPR, but they were entitled to have factual findings and disciplinary decisions adjudicated by a Disciplinary Review Board comprised of other SES members. For SES members accused of misconduct, the OPR Adjudication Unit forwarded to the FBI's Deputy Director a package containing the results of the investigation and a summary of precedent cases and the disciplinary findings in those cases. The package did not contain a formal recommendation for discipline, or any final findings regarding misconduct. If the Deputy Director determined that the allegations appeared to have been substantiated by the OPR inquiry, the Deputy Director convened a Disciplinary Review Board composed of five SES members. The Deputy Director picked the five members who sat on each case. The SES Board reviewed the analysis of the Adjudication Unit with reference to prior disciplinary cases and, where it found the misconduct to be substantiated, the SES Board recommended disciplinary action to the Deputy Director. The Deputy Director made the final determination, based on the recommendation of the SES Board.4
On August 15, 2000, former Director Freeh issued a memorandum changing the two-tiered disciplinary system. The memorandum addressed the difference between the adjudication of SES and non-SES cases. The memorandum noted that the SES Board made a disciplinary recommendation for SES members based upon its appraisal of the facts and precedents, with particular reference to the relatively small number of prior SES disciplinary cases, "some of which predated the strengthening of our disciplinary policies." The memorandum concluded that the difference in adjudication procedures, together with the problem of different deciding officials applying different precedent bases, permitted "a perception of a double standard which is neither warranted nor permissible, while at the same time denying SES members the appellate protection enjoyed by other employees." The memorandum stated that the revisions would help to achieve the goal of giving both FBI employees and the public confidence that the FBI's disciplinary system punishes misconduct fairly and expeditiously "without fear or favor."
The new procedures abolished the SES Board. They required that adjudication of administrative inquiries involving SES employees would be handled by OPR and would be based on the uniform application of precedent cases, for both SES and non-SES employees, decided since March 1997. Freeh's August 2000 memorandum stated that "[t]he same standards for evaluating evidence would be consistently applied to all employees with due regard for the increased responsibilities and obligations of a senior executive." As required by regulation, final disciplinary authority over "key executives" was still reserved to DOJ. Moreover, by statute (5 U.S.C. § 7543(a)), SES members still cannot be suspended for less than a 15-day period.
Under the new system, an official in OPR, normally the OPR Deputy Assistant Director, proposes disciplinary action for senior executives and the OPR Assistant Director makes the disciplinary decision. Cases involving non-SES employees continued to be handled in the same manner as established by Freeh's directive in March 1997. Appeals are permitted for all disciplinary actions, except letters of censure and oral reprimands. SES members may now appeal to the Inspection Division, which will convene the same Disciplinary Review Board to which all other employees have access. The Board consists of three SES members. The chair of the Board is the Assistant Director of the Inspection Division. The person appealing gets to select one member of the Board. The third member of the Board is chosen at random from a list of SES members.
In reviewing appeals, the Assistant Director of the Inspection Division or the Disciplinary Review Board may "independently redetermine the factual findings and/or the penalty imposed." If a new penalty is imposed, 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. There is no requirement, however, that the Assistant Director or the Disciplinary Review Board provide written justification for their findings or for any change that is made to the decision of the original disciplinary decision.
Although there are no further internal appeals beyond the Assistant Director or the Board, the FBI Director retains a discretionary power to change disciplinary actions concerning all employees except those senior executives whose discipline must be approved by the Deputy Attorney General. According to Freeh's August 2000 memorandum, the FBI Director's power to change discipline, which could be both in favor of and to the disadvantage of the employee, is "not intended to be an additional level of appeal and will not be exercised routinely. It is intended to be exercised only in those rare and exceptional cases when the Director considers it necessary to correct an injustice or to prevent harm to the FBI."
According to the FBI's Manual of Administrative Operations and Procedures (MAOP), when deciding discipline the FBI should give consideration to "Bureau policy and similar incidents previously resolved, as well as any aggravating or mitigating circumstances of the case in point." The MAOP states that for discipline of SES and non-SES employees, the decision-maker should consider possible mitigating or aggravating factors in making a final disciplinary decision. These factors are commonly known as the "Douglas Factors," and stem from the Merit Systems Protection Board (MSPB) case Douglas v. Veterans' Administration, et al., 5 M.S.P.B. 313 (1981).5 Despite the fact that very few FBI employees have appeal rights to the MSPB,6 the FBI considers the Douglas factors in arriving at disciplinary decisions.
The FBI's MAOP also states that in most instances penalties for violations of regulations fall within a range of penalties set forth in that manual. However, a penalty outside of the range may be imposed where aggravating circumstances exist. The MAOP cites as an example the case of a supervisor or Bureau official who, because of his or her responsibility to demonstrate exemplary behavior, "may be subject to a greater penalty than is provided in the range of penalties."
Pursuant to statute, however, FBI SES employees, like all other SES employees in the federal government, cannot be suspended for fewer than 15 days. An FBI decision-maker must therefore choose between a letter of censure and a minimum 15-day suspension for SES employees, but may impose suspensions for less than 15 days on non-SES employees.