“ 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. ”

“ 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. ”

“ 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. ”

“ In general, senior officials are eligible for retirement and many escape punishment by retiring before the investigation is concluded. The appearance of a double standard is exacerbated when disciplining officials consider the absence of punishment for others as a mitigating factor when considering whether to discipline managers. We believe this should only be a significant factor when considering whether to discipline rank and file employees after more culpable managers have retired. ”

“ 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. ”

“ Numerous entities and individuals who were much closer to the events than we have weighed in with analysis and opinions, often reaching different conclusions. Nonetheless, we believe that there are important lessons to be learned from a review of the response to Ruby Ridge.
First, there is almost nothing about Ruby Ridge that worked well. The incident itself was replete with poor performance, poor judgment, misconduct, and acts of clear obstruction to cover up the problems. ”

“ 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. ”

“ Where other credible evidence of misconduct exists, proof of intent should not be a requirement to impose discipline. In addition, treating poor performance only as a performance issue often means that significant neglect of duty will go unaddressed. By the time the misconduct investigation has been completed, the rating period will have passed and the employee's neglect of duty will not be accounted for. ”

“ Of course, even if JMD had used what we believe to be the appropriate standard, it is likely it would not have recommended discipline against Harp or Mathews. As expressed in JMD's report, JMD was heavily influenced by the passage of time and the inability of the Department to discipline the individuals who many believed were the more culpable individuals. This factor - the disciplining official's discomfort at imposing punishment on some individuals but not others - is present in other cases as well and can present a significant obstacle toward imposing discipline on mid-level managers. ”

“ Bonuses and Promotions One aspect of Ruby Ridge and the Potts party investigation that has not been reviewed by the Department or FBI OPR was the promotions and bonuses given to FBI employees who were the subjects of internal Ruby Ridge investigations while the investigations were pending. While a presumption of innocence is usually appropriate while a subject is under investigation, rewarding a subject who is later found to have committed misconduct can result in adverse consequences. ”

“ 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. ”

“ 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. ”

“ DOJ OPR stated that, under its analytical framework, an employee commits misconduct if he intentionally violates or acts in reckless disregard of an obligation or standard imposed by law, applicable rule of professional conduct, or Departmental regulation or policy. It stated that, in this case, both Harp and Mathews each had a professional obligation to conduct a thorough, complete inquiry into the Ruby Ridge matters assigned to him or to document that the inquiry was incomplete. ”

“ Jarcho found that it was likely that Mathews would have stated that he could have been objective and would have been allowed to conduct the inquiry regardless. Jarcho's report stated that it is well-established FBI practice not to disqualify agents because they have worked for or have a personal relationship with the person under investigation. It noted that FBI OPR has expressed the opinion that any FBI official is expected to be able to investigate virtually any other FBI official, regardless of professional friendships that develop between senior employees over the years. ”

“ Garcia said that all of the Board members were busy and knew what it was like to be in that position. Garcia stated that "inattention to detail" is different for a senior executive than it is for a line agent because of the amount of matters on a senior executive's agenda each day.
Garcia stated that the Board also was sensitive to the situation of Harp and Gonzalez because SES-level employees frequently do not have a written or planned agenda when they travel to FBI Headquarters, and it is possible to get a lot of work done just "walking the corridors." ”

“ This action also sent a message to employees throughout the FBI, telling them that the Bureau was willing to overlook serious allegations of misconduct and even reward the subject of the allegations with a major promotion. Such a message inevitably had a damaging effect on the morale of the great majority of FBI personnel who take great pride in their integrity and in their adherence to high standards of professional conduct.
We agree with DOJ OPR that the promotions of individuals while under investigation for serious misconduct were troubling. ”

“ 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. ”

“ 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. ”

“ This was likely worsened by the fact that Colgate's decision rejected the lengthy and complex analyses in two separate reports by DOJ OPR and Jarcho with only a short, conclusory memorandum. In the end, the effect of his decision, particularly without sufficient explanation as to the reasoning and the evidence supporting it, was to feed the perception that several lower-level FBI employees were harshly disciplined and upper-level employees either retired or received no or light discipline. ”

“ The ultimate disciplinary decision for the subjects of the second round of investigations was removed to the Department specifically to avoid any further allegations that the FBI was covering up the misconduct of its senior officials. Nonetheless, in the end, because of what we believe to be flawed analysis on the part of JMD, the appearance that culpable senior officials had "gotten off" remains.
There are no standards or internal Departmental regulations guiding a deciding official's actions in discipline matters. ”

“ We believe that this view creates problems for investigative entities, which are obligated to conduct thorough and complete investigations. Ruby Ridge, in particular, was delayed by actions of the subjects that arguably impeded the initial investigation and by a criminal investigation. If the efforts of the investigators are in the end going to be wasted unless the investigation is completed within a specific time frame, then investigating entities need to be informed of the time frame and given sufficient resources to meet it. ”

“ The fact that inadvertence could be a factor to be considered in determining a penalty is a clear indication that discipline, not just a poor performance evaluation, may be appropriate in cases where bad intent has not been proven. Also, the Department has imposed discipline in other cases where intentional misconduct was not shown. ”

“ The Potts Retirement Party The Potts retirement party is widely believed within and outside the FBI to be an egregious example of senior managers being excused or lightly disciplined for misconduct that would have resulted in severe sanctions if less senior employees had been involved. ”

“ A supervisory agent resigned after he was proposed for dismissal for converting Bureau property for his personal use, misappropriation of funds, and a lack of candor during the administrative inquiry. A supervisory agent was proposed for a demotion, a 50-day suspension, and one-year probation after he misused his Bureau car, committed time and attendance violations, misused his Bureau calling card, and conducted an affair with his neighbor while on duty. ”

“ Moreover, Harp failed to notify anyone of the incompleteness of the inquiry. In our view, this fact, together with Harp's conduct with respect to the editing of the 302's, suggested, by a preponderance of the evidence, an improper purpose on Harp's part. We also believe that Mathews' failure to recuse himself despite his relationship with Coulson, taken together with his statements and the unsubstantiated findings in his report regarding approval of the rules of engagement, established by a preponderance of the evidence that Mathews conducted an inadequate investigation. ”

“ Despite Freeh's comment to the Senate subcommittee in October 1995 that he had not been sufficiently sensitive to appearances, he promoted Harp only two months later, followed by promotions for Walsh and Mathews. We believe that the FBI and Department components need to carefully consider whether to promote or grant awards to individuals who are under investigation. The Department should consider whether a Department official should approve awards and promotions for high-level individuals who are under investigation. ”

“ OIG Analysis A review of the Potts retirement party discipline matter four years after the events is difficult because the facts were not entirely clear, and the findings in many instances rested on an assessment of the credibility of statements made by the subjects. Moreover, the fact that an important witness, Esposito, retired and refused to be interviewed made credibility assessments of certain subjects' statements more difficult. ”

“ 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. ”

“ It was alleged that the conference was scheduled for October 10 to provide justification for the FBI to pay for the travel of SACs to attend the Potts retirement dinner. Under FBI policy, which was unwritten at the time but which we understand was commonly known, travel to a retirement function was considered personal business and not reimbursable by the government. It was further alleged that seven SACs falsified travel vouchers in order to receive reimbursement for travel to the dinner. ”