A Review of Allegations of a Double Standard of Discipline at the FBI
November 15, 2002
Office of the Inspector General
THE LEEU REPORT
The LEEU was established as a unit of FBI OPR in 1995. Its mission is to teach ethics to FBI personnel and to monitor the overall integrity of the FBI's components. The unit's first chief was FBI Special Agent Frank Perry. He told the OIG that as chief of the unit he began to hear frequent complaints about unaddressed misconduct by senior executives. Perry and his staff found that many rank and file employees of the FBI believed that the discipline administered to SES members was less severe than normally would be given to other employees of the FBI who had engaged in similar conduct. Perry believed that the LEEU had an obligation to look into such allegations because of the serious impact they could have on the FBI. He noted to the OIG that a belief by employees that their superiors are judged by a more lenient standard leads to morale problems and a lack of respect for senior management.
On September 1, 1999, the LEEU issued a report entitled "FBI Senior Executive Service Accountability: A Higher Standard or a Double Standard?" The report, which was written by Perry and two other FBI employees, concluded that a double standard existed and recommended systemic changes to the disciplinary process. This report was the impetus for the changes in the FBI's disciplinary system that were instituted in August 2000.
The LEEU's report first attempted to statistically compare OPR cases involving similar acts of misconduct between non-SES agents and SES managers. It presented for six years the number of SES subjects of OPR investigations versus the overall SES population in the FBI for a given year compared to the number of non-SES subjects versus the overall non-SES FBI population for the same year. According to the report, these numbers revealed that SES employees are approximately three times more likely to have an OPR case initiated against them as are non-SES employees.7 The report concluded from these statistics that OPR did not shy away from opening misconduct cases on senior managers. The report stated that "few within our ranks would argue with the claim that the investigation of those matters is firm, fair, and thorough."
The report then compared the discipline administered to SES and non-SES agents for similar misconduct. The report presented the data for various categories of misconduct for fiscal years 1996 through 1998, including the number of SES and non-SES subjects in several misconduct categories, the number and percentage of those subjects who were disciplined, and the number and percentage of those subjects who were suspended or dismissed. It concluded that the data showed a "clear trend" that SES employees receive fewer suspensions and dismissals than non-SES employees for the same offense. The LEEU noted, however, that the comparison was difficult because of the small sample of SES cases and because every case is factually different.
We heard several concerns about the LEEU's statistical comparison and conclusions. First, as acknowledged in the LEEU report, comparison of cases between the two categories of employees was difficult because of the small number of SES cases. For example, in one of the categories, there were 98 non-SES employees investigated and only 4 SES employees. Second, a large number of SES employees are eligible to retire and take advantage of this option while under investigation to avoid any penalty. Third, as discussed above, the "Douglas Factors" are to be considered prior to making any disciplinary decision. These factors, which include the length of an employee's service, the level of their responsibility, and their past work and disciplinary record, necessarily make disciplinary decisions highly individualized.
Despite these limitations, we believe the LEEU report brought justified attention to a clear problem - the widespread perception throughout the FBI of a double standard of discipline. As an internal document that created an impetus to change, the LEEU report was extremely useful and effective.
In an attempt to evaluate whether a double standard of discipline exists in the FBI, we reviewed the files of 15 SES disciplinary matters closed between August 2000 (when the new disciplinary system was implemented) and November 2001. We assessed whether the discipline imposed appeared inappropriate to the facts of the case or inconsistent with precedent. Of the 15 SES closed matters,8 we found:
Our review was limited by the same factors that limited the statistical review of the LEEU. Our review did not find that any of the 15 disciplinary decisions was obviously lenient or unfair, or inconsistent with the precedent of discipline imposed on non-SES employees in like cases.
Nevertheless, our review of these cases raised several troubling issues. First, out of 19 SES disciplinary matters that were closed between August 2000 and November 2001 (which includes, in addition to the 15 discussed above, the Ruby Ridge cases discussed in Chapter Five), we found that 6 SES employees, or almost one-third, retired while under investigation. The ability to retire with a pension in order to avoid disciplinary action is not as commonly available to less senior FBI employees. Also, the ability to retire while under investigation fuels the perception that SES employees can avoid discipline and receive preferential treatment. Second, because of the statutory restrictions on suspensions for SES employees, we considered only whether the SES employees who received letters of censure should have received a 15-day suspension instead - the next level of discipline available. In some cases, it appears that a shorter suspension may have been appropriate discipline, but that option was not available to the FBI.
In sum, a comparison of SES versus non-SES discipline did not yield definitive conclusions about whether a systemic double standard exists in the FBI. But there were four troubling cases of disparate discipline for SES members that the LEEU report noted, which we examined in detail: the investigation of a Special Agent in Charge (SAC) who behaved inappropriately in a hospital emergency room, an Assistant Director who lost his pager, the Potts retirement party case, and the Ruby Ridge case. These cases reveal troubling instances of light discipline for SES members. They also fostered a strong perception of a double standard within the FBI. In the rest of this chapter and in the two chapters that follow, we discuss these cases in detail.
In 1997, an SAC of an FBI field office was involved in an altercation with hospital staff after he took his elderly father to the emergency room for treatment. Three doctors, two nurses, and three local police officers described the SAC as probably intoxicated and said that his behavior was loud, belligerent, inappropriate, and frightening. Several witnesses described being afraid for their safety. Because of his actions, hospital personnel asked the SAC to remove his weapon. The SAC refused to do so, and local police were called to the hospital. The SAC initially refused to produce identification, and a confrontation with the police ensued. He was sent home by the police with his fiancée. The SAC later refused to cooperate with the local chief of police who was conducting an investigation of the matter. When interviewed by OPR, the SAC admitted to having had one 12-ounce beer several hours before the incident, denied making statements about drinking beer to hospital staff, and denied making abusive statements to the police officer at the hospital.
OPR concluded that the SAC had committed misconduct. In evaluating the appropriate discipline, OPR cited five similar cases as precedent:
An SES Board was convened and recommended that the SAC involved in the hospital altercation be immediately removed from his position and be given a loss of effectiveness transfer to FBI Headquarters. The Board proposed that the transfer order specify that the transfer was to further the mission and needs of the FBI and "should not be considered a punitive measure." The Board also recommended a fitness-for-duty examination in order to determine the effects of alcohol, stress, and medication on the SAC's actions.
The SAC was placed on administrative leave pending the receipt of the fitness-for-duty report. The SAC was examined and the doctor concluded that the SAC's depressive condition, continued use of alcohol, and recurrent need for the medication Prednisone "contribute to a vulnerability to recurrent inappropriate behavior, mood instability, and impaired judgment." The doctor recommended a course of treatment and that the SAC remain in a limited-duty position until he recovered. The doctor's report stated that the SAC had reported temper and other problems when taking Prednisone, but the report noted that the SAC was not taking Prednisone on the day in question and had not taken it for about "a month before the incident."
The SES Board reconvened and concluded that the SAC's behavior, while otherwise actionable, was mitigated heavily by the effects of his medication. The Board recommended that no further action, beyond the SAC's transfer to FBI Headquarters, was necessary. The Board also noted that it was aware of the SAC's intention to retire before the end of the year.
The FBI Deputy Director at the time, Robert Bryant, wrote the SAC a letter stating that although the Board found his conduct to be "totally unacceptable and unprofessional," it had recommended no disciplinary action because his actions were significantly mitigated by the effects of prescription medications he was taking at the time of the incident. Bryant stated in the letter that he was "seriously disturbed by the damage which [the SAC's] conduct caused," noted that the negative impact of his behavior was enhanced by his status as a member of the SES, and strongly suggested that the SAC make amends with both the hospital staff and local police. Significantly, however, the file copy of the letter included specific instructions that the letter should be personally presented to the SAC and stated that the letter was for "information only and that no copy will be designated to the employee's official personnel file."10
This case was cited by the LEEU report as an example of a disparity between the discipline imposed on SES and non-SES employees. We agree. There was no evidence in the record about the side effects of the SAC's medications, which the SES Board referred to as evidence to heavily mitigate discipline. But the doctor's report was clear that the SAC had not taken Prednisone on the day of the incident and had not taken it for about one month prior to the incident.
The outcome of this case was troubling. The ultimate result - removal of the SAC from his supervisory position and a retirement - seems only minimally acceptable, and other aspects of the case raise questions. For example, it is unclear why the removal was described as "nonpunitive." Most disturbing, the SES Board's reliance on the SAC's medication as mitigating evidence appears to have stretched the actual facts. Although the fitness-for-duty report clearly noted that the SAC had not taken medication for one month prior to the incident in question, the Board relied heavily on the SAC's use of medication as a mitigating factor.
Another case discussed in the LEEU report was the discipline imposed when an Assistant Director lost his pager. According to the report, the discipline imposed on FBI personnel for loss of FBI property traditionally had been a letter of censure.11 In July 1996, when an Assistant Director lost his pager, the Personnel Division recommended that a letter of censure was appropriate and in keeping with precedent. Deputy Director Bryant decided, however, that the Assistant Director should receive an oral reprimand "due to the minimal monetary and operational value of the lost equipment." Later in 1996, the Deputy Director asked the Personnel Division to circulate an employee notice articulating a new position that an oral reprimand was the appropriate sanction for this type of loss. OPR internal records also noted that this case set "new precedent" for this type of loss.
This policy change was never formally distributed to the field, where most minor misconduct cases like this are resolved. The LEEU report stated that, probably through word-of-mouth or through contact with OPR, the majority of pager losses since 1996 against special agents have resulted in findings of "no action" or in oral reprimands. However, the report asserted that from the time the Assistant Director received his oral reprimand to the time of the LEEU report, five special agents had received letters of censure for loss of their pagers. The report concluded that "the disparate and favorable treatment could not be any more obvious."
We did not find that the policy change itself necessarily reflected a double standard. We were concerned, however, by the fact that five line agents continued to be punished under the old standard. This discrepancy reflects a failure to ensure that FBI disciplinary policies are adequately communicated to the field. Regardless of the reasons for it, this lack of consistency should not be tolerated because it results in the perception of a double standard.
In the next two chapters of this report, we describe the Potts retirement party and Ruby Ridge cases, two well-known incidents that exacerbated the perception of a double standard of discipline in the FBI.