STUDY OF THE FBI’S 

OFFICE OF PROFESSIONAL RESPONSIBILITY 

Griffin B. Bell February 2004 

Lee Colwell 
 i

TABLE OF CONTENTS 

Page

I. SUMMARY OF FINDINGS AND RECOMMENDATIONS....................... 1

II. INTRODUCTION.......................................................................................... 6

A. Mission Statement/Mandate ..................................................................... 6

B. Process........................................................................................................ 7

C. History of FBI/OPR.................................................................................... 9

D. Department of Justice Office of the Inspector General -- Right of First 

Refusal Over Allegations of FBI Misconduct ......................................... 12

E. FBI’s Current Process for Investigating and Adjudicating Allegations 

of Misconduct, and for Appealing Discipline.......................................... 15

1. Initial Processing Office and Case Opening...................................... 15

2. OPR Investigations: Delegated and Retained.................................. 17

3. OPR Adjudications: Delegated and Retained................................... 18

4. OPR Appeals and Disciplinary Outcomes ......................................... 22

III. FINDINGS................................................................................................... 27

A. Overview................................................................................................... 27

B. Findings Concerning Actual or Perceived Disparate Treatment.......... 28

C. Timeliness of OPR Investigations........................................................... 32

D. OPR Staffing and Lessons Learned From Other Agencies ................... 35

E. OPR Structure.......................................................................................... 38

F. Other Findings......................................................................................... 39

1. OPR Jurisdiction................................................................................. 39

2. Automation & OPR’s Intake System ................................................. 39

3. Procedural Rights ............................................................................... 40

4. Adjudications....................................................................................... 40

5. Appellate Process................................................................................ 41

6. Communication & OPR Transparency .............................................. 41
 ii

IV. RECOMMENDATIONS ............................................................................. 42

A. Recommendations to Address Perception of Disparate Treatment...... 42

1. Congress Should Eliminate the Fifteen-Day Minimum Suspension 

for SES Officials.................................................................................. 42

2. FBI Should Develop and Uniformly Apply Effective “Punishment 

Guidelines”.......................................................................................... 43

3. Other OIG Recommendations To Address Disparate Treatment 

Supported by this Review................................................................... 44

B. Recommendations Regarding OPR Structure........................................ 46

C. Recommendations Regarding DOJ/OIG Oversight ............................... 51

D. Recommendations Regarding OPR Jurisdiction.................................... 52

E. Recommendations Regarding OPR Components ................................... 52

1. Automation & the Intake System...................................................... 52

2. Investigations...................................................................................... 53

3. Adjudications....................................................................................... 59

4. Appellate Process................................................................................ 61

5. Communication & OPR Transparency .............................................. 64

6. Law Enforcement Ethics Unit & Training........................................ 65
Page 1 of 67 

I. SUMMARY OF FINDINGS AND RECOMMENDATIONS 

 (1) The Commission has drawn the overall conclusion from our 

numerous interviews and review of OPR studies, statistics and individual 

cases, that OPR as an operating entity has lost touch with its original mission 

and no longer effectively serves the Director and the FBI as a whole. OPR has 

become an unfortunate lightning rod both outside and within the Bureau as a 

perceived source of unfairness and favoritism that adversely impacts morale at 

a time in our history when this country depends more than ever on one of the 

world’s finest law enforcement agencies. 

 Of great concern is that OPR has become so stigmatized that it is 

extremely difficult to attract top personnel to sensitive OPR positions requiring 

the highest levels of experience, judgment, and discretion. Recruiting topcaliber people to the new OPR, or whatever the function may be called, will be 

the Director’s greatest challenge if the improvements we suggest are to be 

successful. 

3⁄4 Recommendation: The Commission’s recommendations, 

taken together, are intended to address OPR’s poor 

reputation and inefficiency. Our proposals, including (a) 

fundamental restructuring, (b) appointment of a working 

group to eliminate performance issues from OPR’s 

jurisdiction and develop uniform punishment guidelines, 

and (c) improvement in OPR’s process and procedures, 

should have a positive impact. Ultimately, however, 

effective and lasting reform of the FBI’s disciplinary 

process will depend on the appointment of wellrespected, experienced personnel to administer the OPR 

function. 

 (2) The perception of a double standard of discipline favoring 

management over lower level employees, which has received considerable 

publicity and attention, persists throughout the FBI. We identified certain 

individual and anecdotal instances of actual disparate treatment, but we are 

unable to conclude, particularly in light of some changes that have been 

implemented and the spotlight that is trained on OPR, that a systemic, actual 

disparity exists today. Nevertheless, the perception itself has had an enormous 

adverse impact on morale and confidence in the FBI’s internal disciplinary 

system. 
Page 2 of 67 

3⁄4 Recommendation: As discussed, infra, a number of 

continuing issues contribute to the perception of 

disparity in punishment between management and lower 

level FBI employees. Actual disparate treatment in 

highly publicized, historic OPR cases (e.g., Ruby Ridge, 

Waco), initially created the well-justified perception that 

management received favorable consideration in 

disciplinary matters. We intend our collective 

recommendations to improve the disciplinary process 

and diminish the perception that disparate treatment 

persists. 

(3) We have identified a number of issues that contribute to the 

perception of disparity. They include: 

(a) The fifteen-day statutory minimum suspension of SES 

officials has led to a view that there is a tendency to “round down” 

punishment of SES managers to letters of censure while non-SES 

employees receive terms of suspension for similar offenses. 

3⁄4 Recommendation: Congress should eliminate the 

statutory fifteen-day minimum suspension. 

(b) The FBI’s punishment guidelines and precedent database, 

such as they exist, are vague, incomplete, and deeply flawed, which 

undermines the concept of fairness. Some perceive the inadequacies and 

ambiguity of these guidelines to allow favoritism toward senior level 

management. 

3⁄4 Recommendation: The FBI should develop and 

uniformly apply effective “punishment guidelines.” 

(c) The “bright line” policy of termination for cases of “lying, 

cheating and stealing” has become blurred and no longer serves its 

original purpose. The resulting confusion over the standard also is 

viewed by some as allowing leniency for SES employees. 

3⁄4 Recommendation: The “bright line” policy, wellintended as it was, should be eliminated from the 

disciplinary process because of its uneven 

application and the confusion it has created. 
Page 3 of 67 

(d) Senior FBI managers, more likely to be eligible for retirement 

than lower level employees, sometimes retire or resign while under 

investigation, fueling the perception that they have an escape route to 

avoid discipline not available to lower level employees. 

3⁄4 Recommendation: we recommend that the Director, 

after considering the impact of our 

recommendations, reassess whether OPR matters 

should continue against the relatively few 

employees who retire or resign while a disciplinary 

matter is pending. 

(4) OPR’s lack of timeliness in resolving cases remains a significant 

deficiency. Despite recent progress, the historical problem that too many OPR 

cases remain pending for over six months persists today. Underscoring the 

need for a better, automated case tracking system, the Commission has 

experienced great difficulty obtaining reliable statistics on the age of cases. 

Recent changes contributing to more expeditious case resolution include 

increased reliance on delegated investigations and adjudications, use of 

Assistant Inspectors In Place (“AIIP”s) to assist in investigations and 

establishment of an Initial Processing Office (“IPO”). 

3⁄4 Recommendation: The Commission makes a number of 

recommendations to improve the timeliness of OPR 

matters, such as more rigorous deadlines, better 

automation and elimination of minor misconduct issues 

that clog the system. 

(5) The 1997 merger of adjudications and investigations into a single 

entity, OPR, has led to significant concern that the adjudicators are acting 

more as prosecutors, with the investigators serving as their agents. 

3⁄4 Recommendation: We recommend restructuring in 

several areas, including the return of Investigations to 

the Inspection Division reporting to the AD of 

Inspections, as well as the return of Adjudications to the 

Administrative Services Division reporting to the AD of 

Administrative Services, to assure appropriate checks 

and balances in the disciplinary process. 
Page 4 of 67 

(6) OPR’s jurisdiction has expanded over the years and includes far too 

many petty or performance-based issues despite sporadic attempts to curtail or 

delegate OPR jurisdiction of some matters. 

3⁄4 Recommendation: The FBI should eliminate petty or 

performance-based issues from the disciplinary process 

and relegate such matters, where appropriate, to 

supervisors in the field and at headquarters. 

(7) OPR’s computer automation and databases are woefully lacking 

and are the source of considerable inefficiency and justifiable criticism. 

3⁄4 Recommendation: The FBI should immediately assess its 

computer automation and database capability as it 

pertains to OPR and dedicate ample resources to a 

complete over-haul of its systems. 

(8) OPR investigators do not have a clearly defined career path and in 

some instances have remained on the job for too long. Term limits have not 

been imposed. 

3⁄4 Recommendation: Term limits, preferably of three years, 

should be mandatory and, so that qualified investigators 

can be recruited, the FBI should ensure and formalize a 

positive career benefit for personnel who serve in these 

critical positions. 

(9) We have determined that a number of procedural rights in the 

disciplinary process are either lacking or ill-defined and that the manner in 

which investigations are performed can be improved. Our Recommendations 

Section addresses these areas or identifies the issues. 

3⁄4 Recommendation: We have made a series of 

recommendations, infra, to improve investigative 

protocols and enhance procedural rights in the 

disciplinary process. 
Page 5 of 67 

(10) The background and experience of the adjudicators is highly 

variable and leads some to conclude that the OPR process is a “crap shoot,” 

depending on which adjudicator is assigned. 

3⁄4 Recommendation: The position of “Adjudicator” should 

be professionalized and staffed with highly competent, 

field-experienced and fully trained adjudicators. As with 

investigators, term limits should be mandatory and the 

rotation should have a positive impact on the 

adjudicators’ career development. 

(11) The appellate standard of review, supposedly de novo, has become, 

in reality, a “clear error” or “substantial evidence” standard. Clarification is 

required. 

3⁄4 Recommendation: The current de novo appellate 

standard of review should be changed to “substantial 

evidence,” a standard that we believe is reasonable and 

that comports with current OPR practice. 

(12) Communication to the field about OPR’s mission, its case outcomes 

and its process and procedures, is severely lacking. 

3⁄4 Recommendation: OPR procedures and policy 

statements should be revised, republished to the field, 

and communicated through a comprehensive program 

that includes field meetings and effective electronic 

communications. Case descriptions and updates should 

be summarized and communicated to the field routinely. 

The FBI disciplinary process must become more 

transparent. 
Page 6 of 67 

II. INTRODUCTION

A. Mission Statement/Mandate

 On May 23, 2003, FBI Director Robert Mueller requested Griffin Bell, 

former Attorney General of the United States, and Dr. Lee Colwell, former 

Associate Director of the FBI, to lead a comprehensive study of the FBI’s Office 

of Professional Responsibility (“OPR”). Director Mueller, in his appointment 

letter to Judge Bell and Dr. Colwell, recognized that OPR, the entity within the 

FBI responsible for disciplining FBI employees, must provide a process that is 

fair, efficient, and credible (see Appendix). Director Mueller further recognized 

that media reports and Congressional inquiries had identified significant issues 

in the area of employee discipline that had contributed to an erosion of trust in 

the current process. The Director noted the need for practical 

recommendations that would improve OPR and strengthen public and 

institutional confidence in the FBI’s internal discipline. 

 Without limiting the project, the Director listed several issues for the 

Commission to examine during the course of its review: 

1. Whether the investigative and adjudicative functions both 

should remain within FBI/OPR, or should they be separated 

in some way either within the FBI or elsewhere in the 

Department of Justice? 

2. Recommend guidance for issues that should be referred to 

OPR versus issues that should be handled through the 

performance review and evaluation process. 

3. Is the current appellate process adequate and appropriate 

and should the standard on appeal be de novo? 

4. Is the current OPR system appropriate for all levels of 

employees and is it perceived as such? 

5. What lessons are to be learned from how the OPR process is 

handled in other law enforcement and intelligence agencies? 

 The Commission received no restrictions on the scope of its work and was 

encouraged to examine any issues deemed appropriate for improvement of 

OPR. Director Mueller anticipated that the Commission might identify 

additional issues that impact the OPR process and requested recommendations 

for corrective action. He pledged his full support in granting access to the 
Page 7 of 67 

B.

people and information required to perform an effective study and to develop 

informed, practical suggestions. 

Process

 To accomplish Director Mueller’s objectives, the Commission enlisted the 

assistance of attorneys and paralegals employed by King & Spalding LLP. An 

FBI liaison assisted in the scheduling of interviews and the identification and 

production of documents. The Commission consulted regularly with 

individuals possessing significant institutional knowledge of OPR. Throughout 

this Review, the Commission benefited from the full cooperation of the FBI and 

the Department of Justice. 

 To obtain a broad cross-section of opinions concerning OPR and to 

formulate informed recommendations, the Commission conducted over 50 “in 

person” interviews. We identified most of these people because of their current 

or former association with the FBI’s OPR process. For example, we spoke with 

many individuals who supervised or worked in the investigative and 

adjudicative units of OPR and in the appellate unit of the Inspection Division. 

In addition to the individuals we identified, a number of people interviewed 

contacted the Commission and requested an opportunity to speak with us. We 

accommodated all such requests. 

 In addition to the in-person interviews, we received contacts (e.g.,

telephone calls, letters, e-mails) from over 100 additional interested persons, 

most of whom we interviewed by phone or otherwise contacted. Many of the 

persons who approached the Commission did so after Director Mueller 

distributed an e-mail to all FBI employees inviting anyone interested to provide 

-- directly to King & Spalding LLP if they chose -- information or 

documentation regarding the OPR process that would assist in the study (see

Appendix). 

 While some of the initial interviews were conducted at FBI headquarters, 

largely for the convenience of the witnesses, many of the later interviews were 

conducted at King & Spalding LLP without the FBI liaison present. The 

Commission adjusted the interview venue to address concerns raised by certain 

members of Congress that interviews at the FBI with FBI personnel present 

could chill the candor of some interviewees. We wish to emphasize that we 

were struck by the outpouring of critical information from every conceivable 

point of view about OPR and its process. We observed virtually no evidence of 

reluctance on the part of witnesses to speak candidly, although a few 

interviewees requested confidentiality. The Commission decided not to 

attribute information to anyone in this Report. 
Page 8 of 67 

 The Commission conducted broad and open-ended interviews to obtain as 

much information as possible. While interviews naturally focused on 

interviewees’ experience and background, we asked each interviewee to provide 

more general insight, identify problems, and make recommendations for 

improvement. 

 Among the positions held by the people we interviewed were the 

following: 

3⁄4 Former DOJ Deputy Attorney General 

3⁄4 Associate DOJ Deputy Attorney General 

3⁄4 DOJ Inspector General (and members of his staff and 

Deputy) 

3⁄4 DOJ/OPR Directors (current, former, and acting) 

3⁄4 Current and former FBI Deputy Directors 

3⁄4 Current and former FBI Executive Assistant Directors, 

Assistant Directors, Deputy Assistant Directors, Inspectors, 

Unit Chiefs, Supervisory Special Agents, Special Agents, and 

support staff personnel familiar with the OPR process 

3⁄4 Current and Former Presidents of the FBI Agent’s 

Association 

3⁄4 Representatives of the FBI’s Special Agent Advisory 

Committee, the Mid-level Manager’s Advisory Committee, 

and Aegis, a group representing FBI support employees 

3⁄4 Counsel to the FBI Agent’s Association 

3⁄4 General Counsel and other officials of the Department of 

Defense 

3⁄4 CIA and DEA Officials 

 The Commission also reviewed voluminous documents relevant to the 

OPR process, including historical materials regarding the establishment and 

evolution of OPR; documents reflecting OPR policies, rules, and regulations; 

FBI organizational and budget documents; legislative materials and 

correspondence; FBI internal communications, memoranda, directives, 

statistics, manuals, and case files; and several internal and external reports 

concerning OPR and the OPR process. 
Page 9 of 67 

C. History of FBI/OPR

OPR was created in 1976 and located in the FBI’s Inspection Division. 

Unlike today’s OPR, this entity was responsible only for investigating 

allegations of criminal action or other serious misconduct by FBI employees. 

Adjudication of these matters rested with the Administrative Summary Unit, 

housed in the Personnel Division and subsequently in the Administrative 

Services Division. 

In March 1997, the FBI Director (Louis Freeh) implemented the 

structure of OPR as it largely exists today. The Director combined the two 

separate investigation and adjudication functions from the Inspection Division 

and Administrative Summary Unit into a new stand-alone OPR. 

This consolidation served multiple purposes. In part, the Director 

intended to enhance executive oversight of the entire disciplinary process by 

bringing the two functions together in an office that reports directly to the 

Deputy Director. By placing the units together, and directly below the Deputy 

Director, the Director hoped to increase the independence and accountability of 

the office. In addition, the change was intended to produce more timely 

resolution of cases. 

As part of this restructuring, the FBI created the two positions of OPR 

Assistant Director and Deputy Assistant Director to supervise the freestanding 

office. The Assistant Director of OPR reports directly to the Deputy Director. 

The addition of these SES-level managers was intended to enhance OPR’s 

stature. 

The 1997 reorganization also created the independent Appellate Unit 

housed in the Inspection Division. Prior to this change, the appeals process 

was informal and not well understood by many FBI employees.1 The creation 

of the Appellate Unit in the Inspection Division ensured that appeals would be 

reviewed by individuals in a different chain of command than those 

investigating and adjudicating cases, hopefully contributing to the objectivity 

and independence of the entire disciplinary process. 

________________________ 1 See Memorandum from the Director, to All SACs and All LEGATs, entitled “Appeal and Grievance 

Procedures” at 1, 2 (Oct. 3, 1995) (noting the general “confusion as to what processes [were] available to 

appeal varying types of personnel problems”). Appeals generally were decided by a superior of the 

individual who had handled the adjudication. When the case was a non-delegated disciplinary action 

or the subject was a member of the SES, the appeal was considered by the “next higher level of 

authority from the signatory official indicated on the disciplinary letter.” Id. at 2. Appeals from 

discipline imposed by an Assistant Director or Special Agent in Charge were considered by the 

Assistant Director of the Personnel Division. See id. 
Page 10 of 67 

Another change in OPR’s organization occurred in January 1999 when 

the Law Enforcement Ethics Unit (“LEEU”), formerly known as the Office of 

Law Enforcement Ethics and Integrity (“OLEEI”), was moved from the 

Training Division to OPR. 

In July 2001, the Attorney General expanded the jurisdiction of the 

Department of Justice’s Office of the Inspector General (“DOJ/OIG”) to include 

the right to review all non-frivolous allegations of misconduct regarding FBI 

personnel. A representative of DOJ/OIG exercises this “right of first refusal” by 

selecting which cases DOJ/OIG investigates and which cases remain with 

FBI/OPR. 

The most recent addition to the OPR structure is the Initial Processing 

Office (“IPO”). Created in January 2003, the IPO assumed the responsibility 

previously resting with the Investigative Unit Chiefs to review incoming 

referrals to OPR. This change was designed to promote consistency in 

decisions to open cases, thereby decreasing the disparity in the standards used 

and in the numbers of cases opened and investigated by OPR’s two Internal 

Investigative Units. 

As a result of these structural changes, FBI’s current OPR consists of 

seven units: two Internal Investigative Units (“IIUs”), two Adjudication Units, 

an Intake Unit (the IPO), an Administrative Unit, and the Law Enforcement 

Ethics Unit (the LEEU). Outside of OPR, the Inspection Division houses the 

Appellate Unit that oversees appeals of adjudications. 

The following chart depicts FBI/OPR’s current staffing and structure, 

including the independent Appellate Unit. 
Page 11 of 67 

Chart 1: FBI Office of Professional Responsibility

 

OPR APPEALS 

Assistant Director 

Inspection Division 

(DRB) 

Supported by the 

Appellate Unit

Agents 4 (one agent not 

dedicated to OPR) 

Support 2

FBI Deputy

Director 

FBI Director

Internal Investigative 

Unit 1 

Agents 8 

Support 2 

Internal Investigative 

Unit 2 

Agents 7 

Support 3 

Adjudication Unit 1

Agents 2 

 Support 7

Adjudication Unit 2 

Agents 2 

Support 10

Administrative Unit

Agents 0 

 Support 7

Law Enforcement 

Ethics Unit

Agents 4 

Support 1

Initial Processing 

Office 

Agents 1 

Support 7

Deputy Assistant

Director OPR

Assistant Director 

OPR 

In addition to the 1997 structural changes, Director Freeh modified 

procedural rights afforded to subjects of OPR investigations. The Director’s 

goal essentially was to extend to non-SES employees the same rights afforded 

to SES employees. However, at the same time, the Director instituted what 

came to be considered a “two-tiered” disciplinary process for SES and non-SES 

employees. Under the “two-tiered” disciplinary process, one entity reviewed 
Page 12 of 67 

D.

factual findings and proposed discipline for SES employees while a second, 

different entity performed these functions for non-SES employees. 

 In accordance with Director Freeh’s changes, the Adjudication Unit 

evaluated the evidence and recommended punishment in all disciplinary 

matters involving non-SES employees. The Assistant Director of OPR or the 

Deputy Assistant Director of OPR then made the final decision regarding 

discipline based on the Adjudication Unit’s recommendation. 

 In contrast, a SES board, composed of five SES members, evaluated 

factual findings and recommended discipline in matters concerning SES 

employees. The Adjudication Unit had a limited role in cases involving SES 

employees -- it provided only a summary of the investigation and the relevant 

precedent to the FBI’s Deputy Director. The Deputy Director then determined 

whether the claims warranted the SES board’s review of the case. If so, the 

SES board recommended discipline and the Deputy Director made the final 

disciplinary decision based on that recommendation. 

Three years later, in August 2000, the Director eliminated the SES board 

to bring consistency to the adjudication of SES and non-SES employees. 

Department of Justice Office of the Inspector General --

Right of First Refusal Over Allegations of FBI Misconduct 

 As previously noted, the Department of Justice’s Office of the Inspector 

General has primary jurisdiction to investigate allegations of serious 

misconduct or criminal wrongdoing against FBI employees. In 2001, the 

Attorney General vested DOJ/OIG with this authority by administrative order,2

which Congress later codified in November 2002 by passage of the Department 

of Justice Appropriations Authorization Act.3 Accordingly, DOJ/OIG elects 

which cases it will investigate and which matters remain with FBI/OPR. 

 Although DOJ/OIG has a right of first refusal to investigate allegations of 

misconduct, it has no authority to adjudicate and impose punishment. Rather, 

responsibility for approving discipline of FBI employees rests with the Deputy 

Attorney General for certain high-level SES employees4 or with FBI/OPR 

________________________ 2 See 28 C.F.R §§ 0.29c, 0.29e (2003). 

3 See 21st Century Department of Justice Appropriations Authorization Act, § 308(1), 5 U.S.C. App. 3 § 

8E(b)(2) (2002). 

4 The Deputy Attorney General ultimately is responsible for the design and administration of the 

Senior Executive Service. See 28 C.F.R. § 0.157(c) (2003). The Deputy Attorney General’s authority to 

discipline SES employees, however, has been largely delegated and is defined by reference to internal 

DOJ guidelines. See Personnel and Administrative Authorizations, 64 Fed. Reg. 46845 (Aug. 27, 1999). 
Page 13 of 67 

___________________________________________________

adjudication and appellate officials, depending on the level of the subject under 

investigation and the nature of the proposed discipline. The FBI Director has 

the discretion to modify disciplinary actions for all GS-1 through GS-15 

employees,5 as well as for SES employees who do not report directly to the 

Director.6

 One of the most significant reasons advanced for creation of DOJ/OIG 

oversight was the need to ensure integrity within FBI’s disciplinary process 

through outside supervision. While this oversight function remains 

controversial and has been criticized as an unnecessary intrusion into FBI 

internal affairs, the Commission considers it appropriate to note that, 

according to some interviewees, this structure has improved the credibility of 

the FBI’s disciplinary process. 

 DOJ/OIG expects that most allegations of misconduct in the FBI will be 

handled by FBI/OPR. DOJ/OIG generally will begin an investigation if it 

receives a serious allegation of misconduct that satisfies one of the following 

three criteria: (1) the allegation is against a senior FBI official (GS-15 or 

above), (2) it is a criminal allegation that likely would result in prosecution if 

proved, or (3) OIG determines that it would be preferable that an entity outside 

the FBI conduct the investigation (e.g., because of conflicts of interest).7 In 

addition to matters in these three categories, Director Mueller has made it his 

practice to refer all allegations of retaliation against whistleblowers directly to 

DOJ/OIG. 

 In the vast majority of cases, DOJ/OIG elects not to intervene and 

FBI/OPR investigates the matter without any further reporting requirements 

(footnote cont’d) 

For FBI employees at the SES level, the governing internal guideline is the FBI’s SES policy, which 

explains that the FBI Director may take final action relating to employment for all FBI employees 

except “Direct Reports.” See “Federal Bureau of Investigation Senior Executive Service Policy” at 5. 

“Direct Reports” include: Assistant Directors (division heads), Executive Assistant Directors, and the 

Deputy Director. Special Agents in Charge are not considered Direct Reports and therefore fall within 

the Director’s disciplinary authority. See Memorandum from the Deputy Director, to the Director, 

entitled “FBI Senior Executive Service (SES), SES Policy Revisions” at 2 (Apr. 20, 1998). 

5 In addition to the authority conferred upon the Director to discipline SES employees who are not 

Direct Reports, the Director is authorized to take final action regarding administration of personnel 

who are grade levels GS-1 through GS-15 and personnel in wage board positions. See 28 C.F.R. § 

0.138(a) (2003). 

6 See discussion, supra note 4. 

7 See Memorandum from Glenn Fine, Inspector General, DOJ, to Director Mueller, entitled “OIG 

Investigative Procedures” at 5 (July 24, 2003). 
Page 14 of 67 

to DOJ/OIG (known as a “Management Review”). Occasionally, DOJ/OIG may 

refer the case to FBI/OPR, but require that FBI/OPR apprise it of the 

investigative results (known as a “Monitored Referral”). The following table 

reflects the relative infrequency (4.8%) with which DOJ/OIG elects to 

investigate allegations of FBI misconduct: 

Table 1: DOJ/OIG Cases Opened, July 2001 - July 20038

Description of 

Cases/Complaints 

Number of 

Cases/Complaints

Percentage of 

Cases/Complaints

FBI misconduct complaints 

reviewed by DOJ/OIG 

 1,657 100.0% 

Cases opened/investigated by 

DOJ/OIG 

 80 4.8% 

Monitored Referrals to 

FBI/OPR for investigation 

(continued reporting 

requirement) 

 76 4.6% 

Management Reviews to 

FBI/OPR for investigation 

(no continued reporting 

requirement) 

 1,408 85.0% 

Cases not classified (the 

complaint did not fall within 

any of the recognized 

categories of misconduct) 

 93 5.6% 

 

________________________ 8 Statistics provided to the Commission by Deputy Inspector General, DOJ/OIG (July 2003). 
Page 15 of 67 

E. FBI’s Current Process for Investigating and Adjudicating

Allegations of Misconduct, and for Appealing Discipline

1. Initial Processing Office and Case Opening

 FBI/OPR receives complaints from a variety of anonymous and identified 

sources, such as FBI employees, the general public, and Congress. Each 

complaint now funnels through the Initial Processing Office, where it is given 

an administrative number and is shared with DOJ/OIG for its review and 

assignment. 

 By many accounts, the IPO is functioning as intended and is ensuring 

uniformity in the opening of cases. However, the IPO channels complaints to 

the Deputy Assistant Director of OPR before DOJ/OIG reviews the matter, 

ostensibly for a preliminary investigative decision in the event that DOJ/OIG 

permits FBI/OPR to keep the case for investigation.9 We address the sequence 

of this review process in the Recommendations Section, infra. 

 If DOJ/OIG declines to investigate the allegation, the IPO officially 

determines, with the Deputy Assistant Director’s approval, whether the 

complaint is sufficiently specific and credible to warrant a full-blown, formal 

investigation by OPR. (In theory, the IPO could have made this determination 

unofficially before DOJ/OIG’s formal review, as explained above.) 

 Complaints that are frivolous and without sufficient factual basis are 

dismissed and placed in an administrative control file used as a repository for 

non-case related material, known as a “263-0” or “zero” file. In cases of doubt, 

the IPO may assign an investigator to conduct a Preliminary Inquiry to 

determine if the allegation merits a formal disciplinary inquiry. If so, the case 

is officially opened and an investigation ensues. 

 The FBI tracks the number of cases opened and, in August 2003, began 

tracking Preliminary Inquiries even if they resulted in a finding that the 

allegation was not sufficiently credible or specific to justify opening a formal 

investigation. However, the FBI does not track the number of frivolous 

complaints received and relegated to the zero file.10

________________________ 9 See Appendix, for example, for a description of OPR improvements since September 3, 2002, 

including a summary of the Intake Office. See OPR Document regarding the Accomplishments of OPR 

Since September 2002 at 2 (undated). 

10 FBI/OPR’s Administrative Unit estimates that OPR has assigned 7,500 administrative serial 

numbers to matters in zero files since 1993, or approximately 750 matters per year. This estimate 

could indicate the number of complaints received by OPR but not opened as formal investigations. 

However, OPR acknowledges that this estimate may not be reliable due to such factors as assigning 
Page 16 of 67 

The Commission received two noteworthy observations regarding matters 

processed or resolved by FBI/OPR prior to the opening of a formal 

investigation: (1) zero files, which both field offices and OPR-HQ utilize, 

conceivably could be abused as a dumping ground for allegations that otherwise 

have merit, and (2) allegations conceivably could be processed using the 

designation of “unknown subject,” even where the subject is known, to 

minimize the seriousness of a complaint or to avoid having minor allegations 

associated with an individual in OPR’s database. The Commission has not 

independently verified any such pattern or practice at OPR, but the 

Commission has accounted for and addressed the possibility for abuse in these 

areas in formulating its recommendations. 

The following graph reflects the number of new cases of alleged 

misconduct formally opened by OPR per fiscal year: 

Graph 1: New OPR Cases Opened by Fiscal Year (ending 9/30)11

439 456 (+4%)

538 (+18%)

652 (+21%)

612 (-6%)

685 (+12%)

709 (+4%)

300

400

500

600

700

800

1997 1998 1999 2000 2001 2002 2003

Fiscal Year

Number of Cases 

( ) = percentage 

change from previous

year 

 

___________________________________________________

(footnote cont’d) 

different numbers to multiple, similar allegations from the same source, inconsistent or inaccurate

internal filing procedures, or conversion of the matter to a formal investigation. 

11 Statistics provided by OPR Administrative Unit (Nov. 2003). 
Page 17 of 67 

2.

 As Graph 1 indicates, the number of new cases opened by FBI/OPR has 

tended to increase annually from 1997-2003. As discussed infra, OPR’s 

timeliness in resolving cases has improved recently, but timeliness remains a 

significant OPR deficiency. 

OPR Investigations: Delegated and Retained

 OPR conducts formal investigations of alleged misconduct in one of two 

ways: (1) by delegating the investigation to the appropriate division head, 

typically the Special Agent In Charge (“SAC”) of the subject’s field office or 

resident agency (known as a delegated investigation only, or “DIO”), or (2) by 

retaining the full investigation at OPR, in which case the investigation is 

conducted either by a case supervisor in one of OPR’s two Internal 

Investigative Units (“IIUs”), or by an Assistant Inspector-in-Place (“AIIP”)12

(known as a non-delegated investigation, or “NDI”). OPR estimates in its 2001 

annual report that approximately seventy-five percent of OPR serious 

misconduct investigations are delegated to the field, the latest year for which 

OPR has collected this data.13 

 Subjects of complaints are notified of the allegations if an investigation is 

opened and are permitted to retain counsel at their expense. They are 

reminded after 180 days, and every thirty days thereafter, by an electronic 

communication if the case remains under investigation.14 FBI/OPR has no 

written policies on whether OPR is permitted to inform subjects in greater 

detail about the investigation’s status, a fact that has caused some interviewees 

considerable frustration. 

 During delegated investigations, the division head is responsible for 

assigning a Supervisory Special Agent (“SSA”) (typically a GS-14 level, Special 

Agent with supervisory experience) to conduct the investigation, sometimes 

with assistance from a second SSA. 

________________________ 12 In October 2002, Director Mueller approved a policy requiring all candidates (AIIPs) for an 

Inspection Certification, as a prerequisite for promotion to the ASAC position, to complete one OPR 

credit as part of the six-credit certification. See Memorandum from OPR, to the Director’s Office, 

entitled “Office of Professional Responsibility Reengineering Project” at 2 (Oct. 31, 2002). An AIIP may 

earn the one OPR credit by assisting in a non-delegated OPR investigation, an adjudication, or a 

training assignment. 

13 FBI OFFICE OF PROFESSIONAL RESPONSIBILITY, FISCAL YEAR 2001 REPORT at 5 (Mar. 2003). 

14 The initial 180-day time limit and the requirement that the subject be notified every thirty days are 

derived from the BADGE settlement. See Settlement Agreement Amendment at 5, Johnson v. Reno, 

Civ. No. 93-0206 TFH (D.D.C. May 17, 2000). 
Page 18 of 67 

3.

 In theory, procedural safeguards protect an OPR subject from any actual 

or perceived bias associated with a colleague in the same field office or resident 

agency conducting the investigation. Most notably, OPR policy prohibits the 

delegated investigator from reviewing a subject in his/her chain of command.15 

The Commission has been informed that an OPR delegated investigator, in 

practice, is not permitted to investigate an employee in a higher grade, but 

OPR’s recusal policy does not contain any express prohibition.16

 Non-delegated investigations proceed in a similar fashion. After 

receiving a referral from the IPO, two investigators from OPR’s Internal 

Investigation Units (or an AIIP) conduct the investigation. OPR investigators 

in the IIU, however, may investigate higher ranking employees if DOJ/OIG 

elects not to exercise jurisdiction over senior FBI employees.17 Upon 

completion of the non-delegated investigation, an experienced supervisor in the 

IIU reviews the investigative package for sufficiency before sending the results 

to one of the two Adjudication Units. 

OPR Adjudications: Delegated and Retained

 OPR adjudicates allegations of misconduct in one of two ways: (1) by 

delegating both the investigation and adjudication to the appropriate division 

head, typically the SAC of the subject’s field office or resident agency (known as 

a delegated investigation and adjudication, or “DIA”), or (2) by retaining the 

adjudication at OPR, in which case the adjudication is conducted under the 

supervision of one of the two Adjudication Unit Chiefs and final discipline is 

imposed either by one of the Unit Chiefs, the Deputy Assistant Director, or the 

Assistant Director of OPR. 

________________________ 15 The relevant OPR guideline indicates only that the investigation should be assigned to “a senior, 

mature personnel having no direct investigative or performance responsibility with regard to the 

subject or any witnesses in the inquiry.” See “Guidelines for Conducting Delegated 

Investigation/Adjudication OPR Matters” at 1 (revised July 18, 2003). Similarly, the policy provides 

that adjudications should be assigned to “a senior, mature individual not connected with the 

investigative portion and having no performance responsibilities over the subject employee or with 

witnesses in the inquiry.” Id. at 5. 

16 OPR’s recusal policy applies broadly to all investigations and adjudications, regardless of whether 

they are delegated. See “Disciplinary Policy Guidance, Recusal Policy in Disciplinary Matters” (listing 

multiple grounds for recusal, but not including higher rank). 

17 Unlike delegated field investigators, OPR investigators at headquarters arguably are able to 

investigate subjects in the field -- even subjects of a higher grade -- without the same level of concern 

about the subject’s relative position in the field office chain-of-command or the subject’s residence in the 

same field office as the investigator. While we do not recommend an absolute prohibition against the 

investigation of higher ranking employees by non-delegated OPR investigators, we emphasize in our 

recommendations the value of enhanced oversight and recusal rules to protect OPR investigators 

against retaliation for performing their OPR responsibilities. 
Page 19 of 67 

The following Chart depicts OPR’s process for investigating and 

adjudicating complaints. 

Chart 2: Breakdown of OPR’s Investigation Process

Complaint Received 

DAD Receives

Recommendation from

IPO and Decides Action 

Initial Processing Office

Reviews and Recommends

Action to DAD 

If OIG Declines Investigation, 

the Initial Processing Office 

could take the following actions

based on DAD’s decision

OIG Review --

Determines if FBI or OIG 

Investigates 

No Action 

Matters 

(closed -- 

complaint not 

specific/credible) 

Delegated 

Investigation & 

Adjudication to 

Division (DIA) 

(supervised by 

IPO) 

Internal Investigative 

Unit (IIU) 1&2, 

Conducts Formal, NonDelegated Investigations

(NDI) & Supervises 

Delegated Investigation

Only (DIO) 

Delegated 

Investigation

Only (DIO) 

(supervised by

IIU) 

Non-Delegated

Investigation

by IIU 

NonDelegated 

Investigation

by Assigned 

Inspector-inPlace 

Preliminary 

Investigation (result: 

matter closed, or 

matter opened and

IPO supervises DIA,

or matter opened and 

sent to IIU) 

OPR has attempted to delegate more investigations and adjudications to 

the field to relieve the caseload of OPR’s investigative and adjudication units 

and to improve OPR’s efficiency and timeliness. Most notably, in August 2002, 
Page 20 of 67 

________________________

OPR implemented a policy delegating certain adjudications to field and 

headquarters division heads.18 

 This policy expanded previous delegation efforts and allowed delegation 

for both investigation and adjudication of less serious offenses involving 

employees at the GS-14 grade level and below, subject to review by OPR.19 

Generally, the Director approved the full delegation of certain administrative, 

non-criminal offenses with a penalty of less than fifteen days suspension. He 

also authorized a more refined schedule of offenses, with penalty ranges, that 

would qualify for delegation. The improved timeliness of OPR’s handling of 

cases (as discussed in further detail below), coincides with these changes, 

lending some support to the conclusion that increased delegation of less serious 

offenses has improved OPR’s efficiency. However, OPR has begun to track the 

number of DIA cases only recently and no information is available on the 

number of DIA matters or their results. Accordingly, the Commission has no 

meaningful data from which to determine whether DIAs are achieving their 

intended purpose. 

 During DIAs, the same recusal rules apply as for delegated investigations 

only (DIOs) -- field adjudicators are prohibited from having any performance 

review or appraisal responsibility over the subject, nor can they be involved in 

the investigation. The field adjudicator is required to review the investigation 

findings and determine whether each allegation is supported by a 

preponderance of the evidence. If so, the field adjudicator must consult the 

range of penalty options provided by the schedule of delegated disciplinary 

actions,20 and consider a standard list of aggravating and mitigating 

considerations (known as the “Douglas Factors”) to arrive at a final penalty 

recommendation.21 The final investigative packet, including the punishment 

18 See Electronic Communication from OPR, to All Divisions, entitled “Delegation of Disciplinary Action 

Authorities to EADs, ADICs, SACs and FBIHQ Division Heads,” dated July 18, 2002 and initialed by 

Director Mueller on Aug. 6, 2002. 

19 See id. at 2 (also recognizing that previous delegation initiatives “have been unsuccessful because of 

insufficient tracking to ensure compliance with litigation obligations and deficiencies in the former 

table of penalties provided for delegated offenses”). 

20 These penalty guidelines, which are used for a subset of delegated offenses, may be a productive 

starting point for the creation of the comprehensive set of punishment guidelines recommended by the 

Commission, infra. 

21 The twelve factors are explained in a well-known legal decision by the Merit Systems Protection 

Board, Douglas v. Veterans Administration, 5 M.S.P.B. 313, 5 M.S.P.R. 280 (1981). Although the 

Douglas decision is not binding on excepted service employees at the FBI, these factors nonetheless 

have been used as comprehensive guideposts to consider in imposing discipline. The Douglas Factors 

are: “(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, 

and responsibilities, including whether the offense was intentional or technical or inadvertent, or was 

committed maliciously or for gain, or was frequently repeated; (2) the employee’s job level and type of 
Page 21 of 67 

___________________________________________________

recommendation, is returned to the OPR Initial Processing Office for final 

approval. 

 Allegations involving the following categories are not delegated and 

continue to be adjudicated by OPR’s two Adjudication Units: (1) criminal 

conduct, (2) the possibility of “adverse” disciplinary action (defined as 

suspension of fifteen days or more, demotion, or dismissal)22 or (3) SES 

executives and other employees at the GS-15 grade. In cases involving 

discipline of fourteen days suspension or less for non-SES employees, an 

Adjudication Unit Chief can impose punishment as long as he/she first consults 

with the second Unit Chief in arriving at that result. The subject does not have 

any right to review the file prior to the Unit Chief’s decision. 

 In cases involving adverse actions against non-SES employees, the 

Adjudication Unit Chief becomes the proposing official to either the DAD or the 

AD of OPR. The DAD is the deciding official for proposed demotions and 

suspensions of fifteen days or more for non-SES employees, while the AD 

decides all cases of proposed dismissal. In cases involving SES employees, 

regardless of the severity of discipline, the DAD is the proposing official and the 

AD is the deciding official. (In OPR’s administrative structure, the DAD also 

directly oversees the two Investigative Units, a fact that some interviewees 

suggest undermines the independence of this phase of adjudication.) 

 OPR’s disciplinary approval process for non-delegated matters is depicted 

in the following Chart: 

(footnote cont’d) 

employment, including supervisory or fiduciary role, contacts with the public, and prominence of the 

position; (3) the employee’s past disciplinary record; (4) the employee’s past work record, including 

length of service, performance on the job, ability to get along with fellow workers, and dependability; (5) 

the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon 

supervisors’ confidence in the employee’s ability to perform assigned duties; (6) consistency of the 

penalty with those imposed upon other employees for the same or similar offenses; (7) consistency of 

the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact 

upon the reputation of the agency; (9) the clarity with which the employee was on notice of any rules 

that where [sic] violated in committing the offense, or had been warned about the conduct in question; 

(10) potential for the employee’s rehabilitation; (11) mitigating circumstances surrounding the offense 

such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, 

malice or provocation on the part of others involved in the matter; and (12) the adequacy and 

effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.” See

Douglas v. Veterans Administration, 5 M.S.P.B. 313, 332 (1981). 

22 This somewhat arbitrary distinction is derived, at least partially, from the Civil Service Reform Act 

of 1978, which distinguishes punishment of fifteen days or more from suspension of fourteen days or 

less. See 5 U.S.C. §§ 7502, 7512 (2003). 
Page 22 of 67 

Chart 3: OPR Adjudications -- Approval 

Process for Imposing Discipline

Severity of Discipline Proposing Authority Deciding Authority 

No Action to 14 Days 

Suspension for NonSES Employees 

(Includes Oral 

Reprimands, Letters of

Censure) (Non-Adverse 

Actions)

Discipline Decided 

by Adjudication 

Unit Chief

Discipline Decided 

by OPR Deputy

Assistant Director

Demotion & Suspension 

of 15 Days or More for 

Non-SES Employees 

(Adverse Actions Except 

Dismissal) 

Discipline Proposed 

by Adjudication 

Unit Chief

 

Discipline Decided by

OPR Assistant 

Director 

Dismissal of Non-SES 

Employees; 

Any Discipline 

of SES Employees

Discipline Proposed 

by Adjudication 

Unit Chief (for 

Dismissal of NonSES Employees) or 

by Deputy Assistant 

Director (for Any 

Discipline of SES 

Employees)

Before the DAD or AD imposes punishment, the subject has the right to 

review the portion of the file relied upon by the official proposing discipline. 

The subject may submit a written response and may request an oral hearing. 

4. OPR Appeals and Disciplinary Outcomes

OPR subjects are entitled to appeal to the Assistant Director of the 

Inspection Division (“INSD”) any punishment except oral reprimands and 

letters of censure. The appellate official(s) in the INSD review the investigative 

package and adjudication de novo, theoretically without any deference to the 

validity of the underlying OPR process. The Appellate Unit (“APU”) staff 

assistants prepare the file for review by the appellate official(s), and also may

assist a subject in preparing the appeal. Imposition of any punishment is 
Page 23 of 67 

________________________

stayed pending appeal.23 Subjects’ appellate rights vary depending on whether 

the discipline is “adverse:” 

3⁄4 (1) in cases of suspension of fourteen days or less, the appeal will be 

reviewed and decided by one official -- the AD or Deputy AD, INSD. 

The subject is entitled to an attorney, at his/her own expense, and may 

submit a written response. The subject is not entitled to see the 

investigative file. 

3⁄4 (2) in cases of suspension of fifteen days or more, demotion or 

dismissal, the subject is entitled to have the case reviewed by the 

Disciplinary Review Board (“DRB”). The DRB consists of three SES 

members, including the AD or DAD of the INSD (the Chairperson), 

one member chosen by the subject from a list of SES members, and 

one member chosen at random from the same list. A non-SES subject 

does not have any right to have a non-SES member on the DRB. 

Neither the subject nor counsel is entitled to make an oral 

presentation, but the subject is entitled to a redacted version of the 

file. 

 The number of appeals adjudicated by the APU has remained relatively 

constant during the past five years. The APU resolved fifty-five appeals in FY 

2003 and fifty-six appeals in FY 2002, and historically has modified discipline 

in approximately 20% of cases, almost always by decreasing the appealed 

penalty. Also, the APU’s DRB, which typically hears appeals of the most severe 

punishment, decides cases relatively infrequently: it decides approximately 

eleven appeals per year, or approximately 20% of all appeals heard by the APU 

over the past four fiscal years. 

 The following two tables depict: (1) the total number of appeals per year 

from FY 1997 through the beginning of FY 2004, as well as the rate of 

modification of the underlying charges or discipline, and (2) the number of 

appeals decided by the DRB. 

23 The exceptions to this stay rule are oral reprimands and letters of censure, which currently cannot be 

appealed, and dismissals. Dismissal is the one appealable disciplinary action not stayed pending 

appellate review, a practice with which the Commission agrees. See Decision Memorandum from OPR, 

to the Director’s Office, entitled “Policy Revision in Appeals of Disciplinary Actions” at 1 (Jan. 16, 

2002). 
Page 24 of 67 

Table 2: Historical Perspective of Appeals, FY 1997-2004

FY TOTAL APPEALS TOTAL APPEALS 

Received Adjudicated Sanctions 

Modified 

Charges 

Modified 

% of 

Adjudications 

Resulting in 

Modifications 

1997 21 2 0 0 --

1998 48 32 4 0 13%

1999 56 51 6 2 16%

2000 29 56 3 1 7%

2001 48 48 11 2 27%

2002 56 56 17 0 30%

2003 66 55 12 0 22%

2004 

(partial) 

8 12 3 0 25%

TOTAL 332 312 56 5 20% 

Table 3: Number of Appeals Decided by the 

Disciplinary Review Board

FY DRBs Conducted DRBs as a 

Percentage of 

Total Appeals 

Adjudicated 

for FY 

2 to 1 Decisions Percentage of 

Split Decisions 

2000 13 23% none 0%

2001 14 29% 7 50%

2002 10 18% 3 30%

2003 7 13% 3 43%

TOTAL 44 20% 13 30% 

 

Overall, the FBI has disciplined approximately one-half of those FBI

employees subjected to full-blown, formal OPR investigation, as depicted in the 

following Table. 
Page 25 of 67 

Table 4: Disciplinary Outcomes of Formal Inquiries 

Completed During Each Fiscal Year

FY Employees 

Investigated 

Employees 

Disciplined24

Percent 

Disciplined

SES 

Employees 

Investigated

SES 

Employees 

Disciplined25

Percent 

SES 

Disciplined

 Percent 

Non-SES 

Disciplined

1999 553 278 50.3 17 8 47.1 50.4 

2000 585 315 53.9 17 5 29.4 54.6 

2001 636 347 54.6 13 5 38.5 54.9 

2002 799 466 58.3 12 5 41.7 58.6 

2003 803 423 52.7 21 7 33.3 53.2 

Total 

1999-

2003 

3,376 1,829 54.2 80 30 37.5 54.6 

 Given the small sample size of SES employees, it is difficult to draw 

meaningful comparisons between rates of discipline for SES and non-SES 

employees. As demonstrated by Table 4, the limited data available suggest 

that SES employees investigated tended to be disciplined somewhat less than 

non-SES employees investigated, a conclusion that does not account for 

employees who resign or retire under investigation. Assuming for the sake of 

argument that the thirteen SES employees who resigned or retired under 

investigation would have been disciplined, the overall rates of discipline of SES 

and non-SES employees over the past five years would have been virtually 

identical (approximately 54%). 

 It is also worth noting that even though far fewer SES employees have 

been subjects of formal inquiries compared to non-SES employees, SES 

________________________ 24 The number of employees disciplined does not include employees who resigned or retired during 

administrative inquiries. Generally, less than 10% of employees under investigation retire or resign. 

For example, in 2002, 51 employees resigned or retired during the disciplinary process. In 2001, 45 

employees resigned or retired, 8 of whom had been proposed for adverse disciplinary action. In 2000, 

63 employees resigned or retired, 10 of whom had been proposed for adverse disciplinary action. In 

1999, 43 employees resigned or retired, 8 of whom had been proposed for adverse disciplinary action. 

25 The number of SES employees disciplined does not include the thirteen SES employees who resigned 

or retired during administrative inquiries from FY 1999 through FY 2003: 2 (FY 03), 1 (FY 02), 2 (FY 

01), 4 (FY 00), 4 (FY 99). 
Page 26 of 67 

________________________

employees comprise only a small fraction of the total FBI workforce -- less than 

one percent.26 In fact, over the past five years, SES employees were over three 

times more likely to be subjects of formal inquiries than non-SES employees, 

with approximately 8.8% of SES employees subjected to formal inquiries during 

that period compared to approximately 2.4% of non-SES employees.27

 Upon completion of an investigation, adjudication and final imposition of 

discipline by either the DRB or the AD/DAD of Inspections, subjects have no 

additional rights of appeal. However, the Director reserves discretionary 

authority to modify discipline for all employees, except for certain senior FBI 

executives who are required to be disciplined by the Deputy Attorney General.28 

The Director has invoked this discretion sparingly, if at all.29

26 The number of FBI SES employees for the last five years were: 196 (FY 03), 169 (FY 02), 173 (FY 

01), 187 (FY 00), 182 (FY 99). The total number of FBI employees during the same period were: 27,856 

(FY 03), 27,119 (FY 02), 26,837 (FY 01), 27,617 (FY 00), 28,456 (FY 99). 

27 For example, in 2003, 782 non-SES employees were subjects of formal investigations, or 2.8% of the 

27,660 non-SES FBI workforce. By comparison, in 2003, 21 SES were subjects of formal investigations, 

or 10.7% of the 196 SES FBI workforce. 

28 See Memorandum from Director Freeh, to All Special Agents In Charge, regarding Creation of a 

Single Disciplinary System for all Employees at 3 (Aug. 15, 2000). See also discussion, supra note 4.

29 Director Mueller has never utilized his discretion to modify punishment imposed by OPR. 
Page 27 of 67 

III. FINDINGS

A. Overview

 The Commission found significant issues concerning OPR timeliness, 

efficiency, and fairness that must be addressed. The OPR process, and certain 

high-profile OPR matters, have generated intense scrutiny by concerned 

parties both inside and outside the FBI. Discipline of FBI employees has been 

the subject of congressional inquiries and committee hearings, reviews by the 

Department of Justice’s Office of the Inspector General, 60 Minutes

investigative reports, FBI Inspection Division assessments, FBI senior 

management directives, and even evaluations and statistical analyses 

performed by OPR itself. 

 These reviews raise a wide variety of issues regarding OPR. Prominent 

among them are concerns relating to an actual or perceived double-standard of 

discipline, an actual or perceived climate of retaliation against FBI employees 

who report misconduct by superiors, and a chronic and systemic lack of 

timeliness in the OPR process. Other significant issues are raised in these 

reviews as well, including (a) the role of the Department of Justice’s Office of 

the Inspector General in the FBI/OPR process, (b) the improvement of OPR’s 

process, structure, and quality control (e.g., the configuration, staffing, and 

management of OPR’s intake, investigative, adjudicative, and appellate 

functions; the training and expertise of OPR investigators and adjudicators), (c) 

the lack of functional electronic communications systems and databases to 

facilitate the OPR process, (d) the scope of OPR’s jurisdiction (e.g., separation of 

performance and disciplinary issues), and (e) the relative merits of delegating 

OPR investigative and adjudicative responsibility for certain offenses to the 

field. 

 The Commission concluded that many of the issues and concerns raised 

in these previous reviews continue to undermine OPR’s effectiveness. As these 

issues are well-documented, we do not revisit them in great detail in this 

Report. Two of the more public issues involving OPR -- the actual or perceived 

double standard of discipline, and the actual or perceived climate of retaliation 

-- are discussed at length in the Department of Justice, Office of the Inspector 

General Report, dated November 2003, entitled, A Review of Allegations of a 

Continuing Double Standard of Discipline at the FBI, in a previous OIG Report, 

dated November 15, 2002, entitled, A Review of Allegations of a Double 

Standard of Discipline at the FBI, in a third OIG Report released in February 

2003 and entitled, A Review of the FBI’s Response to John Roberts’ Statements 

on 60 Minutes, and in an FBI/OPR Report dated September 1, 1999, entitled, A 

Higher Standard or a Double Standard? These issues are the subject of several 
Page 28 of 67 

B.

congressional inquiries as well, including a lengthy hearing of the Senate 

Judiciary Committee on July 18, 2001. 

 Concerns about the timeliness of the OPR process are discussed in the 

foregoing reports and in several other reviews, including a Statistical Report 

generated by OPR on May 21, 2003, entitled, Number of Days It Took for Cases 

to Close in FY 00-03 (By Offense Code), an Inspection Division assessment of 

OPR conducted for the period March 5, 1997, through May 1, 2000, and an 

electronic communication from the FBI’s Deputy Director dated May 13, 2003, 

regarding improvements to OPR. 

 Other issues complicating OPR’s effectiveness -- and bearing directly on 

the specific areas of inquiry identified by Director Mueller -- are discussed in 

these and numerous other documents considered by the Commission. In the 

attached Appendix, we include a non-exhaustive collection of documents that 

are relevant both to this Review and, more generally, to understanding the 

FBI’s disciplinary process and history. OPR shortcomings deemed most 

troubling by the Commission are evident in our recommendations, which are 

the focus of this Report. 

Findings Concerning Actual or Perceived Disparate 

Treatment

 Few of the recurring criticisms lodged against OPR generate more 

attention -- or cause more damage to FBI morale -- than the allegation that FBI 

senior managers are treated more leniently in the OPR process than rank and 

file employees. Recognizing the gravity of this criticism, the FBI and 

Department of Justice have grappled with this issue on several occasions. 

 In September 1999, the FBI’s Law Enforcement Ethics Unit, a unit 

within OPR, examined whether a disciplinary “double standard” exists at the 

FBI, and concluded generally that, in the cases reviewed, senior FBI managers 

were disciplined less harshly than line employees.30 The Department of Justice 

Office of the Inspector General has twice studied the problem, issuing reports 

in November 2002 and November 2003.31 Noting the difficulty in comparing 

individual cases -- and in drawing definitive conclusions based on the limited 

number of cases reviewed -- OIG determined in both of these reports that there 

________________________ 30 See FBI LAW ENFORCEMENT ETHICS UNIT, FBI SENIOR EXECUTIVE SERVICE ACCOUNTABILITY - A

HIGHER STANDARD OR A DOUBLE STANDARD? (Sept. 1, 1999). 

31 See U.S. DEPARTMENT OF JUSTICE OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF ALLEGATIONS OF 

A DOUBLE STANDARD OF DISCIPLINE AT THE FBI (Nov. 15, 2002) (“OIG REPORT I”); U.S. DEPARTMENT OF 

JUSTICE OFFICE OF THE INSPECTOR GENERAL, A REVIEW OF ALLEGATIONS OF A CONTINUING DOUBLE 

STANDARD OF DISCIPLINE AT THE FBI (Nov. 2003) (“OIG REPORT II”). 
Page 29 of 67 

________________________

was insufficient evidence from which to “conclusively establish” that the FBI 

disciplinary process systematically favors senior managers over less senior 

employees. However, in its earlier report, OIG also concluded that “the FBI 

suffered and still suffers from a strong, and not unreasonable, perception 

among employees that a double standard of discipline exists within the FBI.”32 

In its subsequent report, OIG noted that many of the troubling issues it had 

encountered in 2002 persisted, and echoed its earlier conclusion that “the 

perception of a double standard is valid.”33

 Our interviews and review of documents failed to confirm the existence of 

actual, systemic disparate treatment. Many OPR investigations and 

adjudications have unique, distinguishing facts and factors that make case 

comparison difficult at best. Simplistic conclusions of disparate treatment 

often break down once a case file is reviewed in its entirety. We were guided by 

the considerable scrutiny already given to this problem, particularly by OIG, 

and we decided not to duplicate the prior studies. Accordingly, we have 

developed our recommendations on the premise that at least a perception of 

disparity exists and that individual cases may be, in fact, unfairly decided. We 

confirmed the existence of this perception through the allegations, often 

anecdotal, of interviewees. 

 Our conclusion that the perception persists has led us to focus on 

systemic measures to address the issue of disparate treatment, whether actual 

or perceived. We do, however, wish to highlight several recent examples we 

encountered of arguable disparate treatment. It is worthwhile to note that the 

first example includes both the facts discovered by reviewing the relevant OPR 

files and the facts as described to us during an interview. 

• One example of alleged disparate treatment involves a prostitution 

sting that incriminated two FBI agents at different grade levels. In 

1999 and 2000, a Supervisory Special Agent from a field office and a 

lower ranking Special Agent from the same field office were both 

detained by local law enforcement for soliciting a prostitute. 

 The supervisor was observed soliciting a prostitute while he was on 

Bureau time, in his Bureau car. Despite being stopped and questioned 

by law enforcement officers, the supervisor was subsequently 

“unarrested” by the local officers. While the case was pending, the 

32 See OIG REPORT I at 2-3.

33 See OIG REPORT II at 37. 
Page 30 of 67 

SSA maintained his position in the field. The case was adjudicated in 

early 2002 and the SSA received a forty-five-day suspension. 

 Approximately eight months after the SSA’s incident, a Special 

Agent from the same field office, in his own car, after work hours, was 

also caught in a prostitution sting. This agent’s involvement in the 

sting made local television news. After his arrest, he was removed 

from his position dealing with matters of national security and 

assigned to less critical duties. The agent retired about a year and a 

half after the incident occurred, before his case had been adjudicated. 

The recommended punishment in his case, however, had been a 

twenty-four-day suspension and loss of effectiveness transfer. 

 During an interview with the Commission, an individual cited the 

above-mentioned case as an example of disparate treatment. The 

interviewee correctly described most of the facts surrounding the 

incidents. However, his perception of the punishment was inaccurate,

did not coincide with the actual discipline imposed, and did not 

support the allegation of disparate treatment. 

 This case is significant as it demonstrates both that the perception 

of disparate treatment is not always accurate, and that delays in 

resolving OPR cases nonetheless significantly contribute to the 

perception that individuals are treated inequitably. The fact that the 

supervisor’s discipline was not imposed until nearly two and a half 

years had passed contributed to the interviewee’s conclusion (even 

though inaccurate) that the supervisor had received minor discipline, 

if any. The decision to remove the agent from his previous duties and 

assign him to lesser duties appeared to support the impression that 

the two had not been treated equally, even though, in fact, the higher 

ranking employee eventually received a longer suspension. 

• A second example of disparate outcomes for seemingly similar 

behavior involves driving a vehicle while intoxicated. This example 

demonstrates that situations may appear similar on the surface, but 

often have factual nuances that may account for their substantially 

different outcomes. Although multiple sources described the alleged 

disparity between these cases, their factual differences make it 

difficult to determine whether they may be considered examples of 

disparate treatment. 

 In late 1996, a field-based Special Agent was alleged to have driven 

his Bureau car while under the influence of alcohol, causing an 
Page 31 of 67 

accident. The agent also was alleged to have fled the scene and to 

have been less than fully candid with law enforcement officers. 

During the investigation a lack of candor charge was added to the 

subject’s list of offenses. After a delegated investigation in the field, 

the OPR subject was informed by the acting SAC that he would 

receive a substantial suspension. After the investigation results were 

reviewed by OPR Adjudicators, however, the agent was dismissed 

from the FBI. 

 In contrast to the above situation, in early 1999, a more senior 

employee, a Special Agent in Charge of a field office, received less 

severe punishment for allegedly driving his personal car while under 

the influence of alcohol. In this case, state law enforcement officers 

were called to the scene. The SAC refused to submit to a blood alcohol 

content test and resisted arrest. The SAC’s behavior was so disruptive 

that multiple officers had to subdue him. This individual received a 

substantial suspension, but was not dismissed. 

 As with many specific cases the Commission reviewed, there are 

multiple factual nuances that may influence outcomes. Here, there is 

an appearance of disparate treatment favoring the management 

official, but the fact that he was stopped in his personal car and not 

his Bureau car (as was the agent), as well as the fact that the Special 

Agent’s case involved a lack of candor charge, may have affected the 

result. 

• A third example of arguable disparate treatment involves allegations 

about agents at different grade levels who failed to report serious 

misconduct by other agents. 

 In 2001, two Special Agents were reported to OPR for failing to 

report allegations that another agent was engaged in an affair with 

the wife of an individual related to an ongoing case. Each agent 

ultimately received a five-day suspension (one agent’s punishment 

was reduced from ten to five days on appeal). 

 In contrast, in 2003, two SES-level employees were reported to 

OPR for failing to report another agent’s contact (relating to an 

alleged domestic disturbance) with a local law enforcement agency. 

The Inspection Division handled the investigation and recommended 

that one SES employee receive a letter of censure for the offense of 

failure to report and that the second SES employee receive an oral 

reprimand for poor judgment. The Assistant Director of the 
Page 32 of 67 

C.

Inspection Division determined that the first employee’s discipline was 

appropriate, but modified the second’s discipline to non-disciplinary 

counseling, which would not appear in his personnel file. The second 

employee was a high level agent (an ASAC, GS-15) when the incident 

occurred and had been promoted to a SES position by the time 

discipline was decided and imposed. 

 The Commission has no way of knowing whether the statutory 

fifteen-day minimum suspension affected the decision to discipline the 

SES-level employees with only a letter of censure and non-disciplinary 

counseling compared to the five-day suspensions received by lower 

ranking Special Agents. 

• A final example of arguable disparate treatment pertains to two cases 

opened in 2002, both involving the improper use of FBI space and time 

to engage in sexual activities with other FBI employees. 

 In one case, a Special Agent had an affair with another FBI 

employee for nearly two years. During the affair, the two employees 

utilized Bureau space and vehicles to engage in sexual activities. 

Some of these instances occurred on Bureau time. The Special Agent 

was suspended for sixty days. 

 In contrast, a SES-level official had an affair with another 

employee for over five years. The SES-level employee also used 

Bureau space and time to engage in sexual activities with the other 

FBI employee. This individual received a lesser, fifteen-day 

suspension. 

 Given the Commission’s general objective -- to promote a more efficient 

and fair OPR process -- many of our recommendations could be viewed as 

responsive, in varying degrees, to concerns of disparate treatment reflected in 

these examples or to perceived “unfairness” in the disciplinary process. OIG 

already has recommended some pragmatic corrective measures, and the 

concerns underlying OIG’s recommendations surfaced in a number of our 

interviews as well. 

Timeliness of OPR Investigations

OPR’s lack of timeliness in resolving cases remains a significant OPR 

deficiency. OPR’s timeliness generally has improved since 2001, but remains 

well beyond levels that are necessary for a fair and efficient administration of 

FBI discipline. 
Page 33 of 67 

OPR has two sets of statistics to assess timeliness: (1) the average age of 

cases pending at the end of each fiscal year, and (2) the average duration that 

closed cases spent in each OPR unit. We believe that while both measures are 

probative of timeliness, the latter approach is more informative largely because 

it tracks closed, not pending, cases. Nonetheless, statistics in both areas tend 

to indicate that OPR has made some recent progress in administering 

discipline by lowering the average age of pending cases and by decreasing the 

number of days cases spend in OPR’s Investigative and Adjudication Units. 

As Table 5 indicates, at the end of FY 2003, a greater percentage of cases 

had been pending for 180 days or less than in previous years, with 62.1% of 

cases at the end of FY 2003 having been pending for 180 days or less, an 

improvement of over 22% compared to FY 2002. Similarly, the number of older 

cases pending for over one year decreased in FY 2003 to 15%, an improvement 

of 11% compared to FY 2002. 

Table 5: Historical Data on Age of Pending Cases

(* not including time for appeals, if any) 

Age of Pending Cases 9/30/98 9/30/99 9/30/00 9/30/01 9/30/02 9/30/03

More than 2 Years 2.7% 1.8% 1.3% 2.3% 3.5% 5.2% 

1 to 2 Years 14.0% 6.5% 11.4% 25.2% 22.5% 9.8% 

181 Days to 1 Year 20.9% 27.1% 18.9% 25.7% 34.0% 22.9% 

180 Days or Less 62.5% 64.6% 68.5% 46.8% 40.0% 62.1% 

Total Open More than 180 

days 

37.6% 35.4% 31.6% 53.2% 60.0% 37.9% 

 Table 5 also demonstrates that, despite OPR’s apparent improvement in 

2003, entirely too many cases have been pending for over six months both in 

2003 and historically. 

 The excessive delay in resolving OPR matters also is supported by the 

second measure of OPR timeliness. As Table 6 indicates, cases spend a 

significant and unacceptable duration in OPR’s Investigative and Adjudication 

Units. For example, with respect to cases closed during FY 2003, OPR 

estimates that cases spent an average of 106 days in OPR’s Internal 
Page 34 of 67 

Investigative Unit(s) and 121 days in the Adjudication Unit(s), for a total 

average of 227 days per case, prior to any appeals. While this average of 227 

days per case is inflated due to the minority of cases that are extremely old, it 

is the Commission’s view that timeliness in both investigations and 

adjudications must be improved significantly. 

 If a case is appealed, the Appellate Unit’s goal is to resolve “nonadverse” 

action cases within sixty days and “adverse” actions cases within ninety days. 

In FY 2003, the APU’s overall average resolution time was 111 days, compared 

to eighty-eight days in FY 2002 and seventy-one days in FY 2001, annual 

increases of 26% and 24%, respectively. 

Table 6: Average Number of Days Cases Spent in OPR, By Unit

FY Avg. days case 

in Investigative 

Unit(s) 

Avg. days case 

in Adjudication 

Unit(s) 

Total 

(no appeal) 

Change from 

previous 

year 

Avg. days 

case on 

appeal/DRB 

Total avg. 

days of OPR 

case if appeal 

1999 132 162 294 -- 238 532 

2000 141 177 318 8% 71 389 

2001 130 152 282 (-11%) 71 353 

2002 113 101 214 (-24%) 88 302 

2003 106 121 227 6% 111 338 

OPR’s general improvement in timeliness (except for appeals) since 2001, 

while still at an unacceptable level, arguably is attributable to a number of 

changes implemented in the last two years, such as: 

• increased reliance on field investigations and adjudications (DIAs) and 

field investigations only (DIOs); 

• use of Assistant Inspectors In Place (AIIPs) for two-week periods to 

assist in conducting OPR investigations; 

• establishment of the Initial Processing Office; and, 

• appointment of an experienced supervisor within OPR’s Investigation 

Unit(s), with adjudication and investigative experience, to review the 

investigative file for completeness prior to submitting the file to one of 

the Adjudication Units. 

 The Commission has concluded that the vast majority of OPR matters 

should be resolved in less than ninety days, preferably sixty days, and that this 

goal is realistic for matters that are, by definition, administrative in nature. If 
Page 35 of 67 

D.

appealed, more time would be necessary, but the subject at least would be 

aware of the preliminary resolution of the allegation and the proposed 

punishment, if any. Also, criminal matters understandably may take longer, 

but such cases historically account for less than 10% of OPR’s cases. 

Accordingly, OPR’s timeliness, despite some progress, remains a deficiency that 

accounts for significant and justified criticism of the OPR’s disciplinary process. 

OPR Staffing and Lessons Learned From Other Agencies

 One of the Commission’s most disturbing findings, which perhaps is not 

surprising given the relentless criticism directed at OPR, is that morale is 

generally poor and that few in the FBI view assignment to OPR as a positive, 

career enhancing move. To be sure, there are some extremely competent, 

dedicated OPR employees. However, based on our observation and the 

conclusions we have drawn from interviews, there is tremendous variability in 

the quality of the OPR staff, from top to bottom. Some OPR employees have 

held positions for too long at the risk of becoming jaded and detached from the 

practical context in which OPR matters should be judged. Others may lack 

appropriate backgrounds or training for their assigned responsibilities. 

 Due to both the nature of OPR assignments -- investigating and 

adjudicating misconduct of peers -- and because of the deterioration of morale 

in an organization that some have characterized as a “snake pit,” top notch FBI 

employees view OPR as a dead end, distasteful job. That attitude must change, 

but such a transformation likely will have to occur gradually. Some of the 

recommendations in this Report may improve the situation, but ultimately the 

Director must appoint and incentivize the right people for these difficult jobs. 

Otherwise, there is no structure or list of improvements that will allow OPR to 

function successfully. 

 One significant issue identified by the Commission is whether current 

OPR staffing levels are appropriate and whether they should be augmented or 

cut. Some observers have opined that OPR is overstaffed, has opened too many 

minor cases as a result, and generally should be streamlined to focus only on 

the most serious misconduct issues. Others contend that OPR is understaffed, 

that it is obligated to investigate all specific and credible allegations of 

misconduct, and that more personnel are needed to ensure timely resolution of 

cases. 

 The Commission reserves any finding on OPR staffing levels until the 

FBI can evaluate the impact of our recommendations, if implemented. It may 

be that our suggestions mitigate the argument for more personnel by 

enhancing OPR’s effectiveness and better defining its mission. On the other 
Page 36 of 67 

hand, certain recommendations, such as allowing all employees to elect to 

appeal any suspension to the Disciplinary Review Board, may require 

allocating more resources to discrete units (e.g., more and/or dedicated 

employees to support and serve on the DRB). 

 In assessing one of the issues identified by Director Mueller -- whether 

any lessons are to be learned from how the OPR process is handled in other law 

enforcement and intelligence agencies -- we found the Drug Enforcement 

Agency’s disciplinary process generally to be most analogous, and therefore 

informative specifically on the question of staffing levels. For purposes of 

guiding our detailed recommendations, we were unable to draw meaningful 

comparisons to other agencies we contacted due to a variety of factors, such as 

core dissimilarities in disciplinary structures (e.g., Customs) or the differing 

nature of the agency (e.g., Department of Defense -- military versus civil 

approaches to discipline). 

 Unlike FBI employees, DEA personnel are not excepted service 

employees and therefore have Merit Systems Protection Board (“MSPB”) rights 

and may appeal certain levels of discipline to the MSPB (generally termination, 

demotion and suspensions of fifteen days or more). Nonetheless, the DEA’s 

OPR conducts the investigation and independent units adjudicate the matter 

prior to any potential MSPB involvement. During adjudication, the DEA’s 

Board of Professional Conduct, which consists of three GS-15 level employees 

(not full-time in this capacity), serves as the proposing entity, and one of two 

full-time GS-15 level employees appointed by the Career Board serves as the 

deciding official. SES adjudication is handled by higher ranking officials. 

 The DEA dedicates more than double the number of full-time agents to 

investigate OPR matters compared to the FBI, despite having approximately 

one-third the number of employees and typically investigating no greater 

number of cases. For example, the DEA has committed thirty-four full-time 

agents, usually experienced GS-14 or GS-15 level agents, to investigate OPR 

matters. By comparison, there are fifteen full-time agents in FBI/OPR’s 

Investigative Units, a ratio inconsistent with the size of the agencies -- DEA 

has approximately 9,700 employees compared to approximately 28,000 

employees at the FBI. 

 The number of cases investigated also does not explain this difference in 

full-time investigators. The DEA estimates that it received approximately 700 

“intakes” in 2003, which number includes all OPR complaints that received an 

administrative tracking number even if a full investigation never ensued, 

compared to 709 complaints resulting in formal inquiries by FBI/OPR in 2003, 

which number does not include frivolous allegations received and placed in 
Page 37 of 67 

FBI/OPR’s administrative zero files. Accordingly, the FBI appears to 

investigate at least as many OPR allegations as the DEA, and does so with the 

support of fewer full-time investigators. 

 Other factors complicate this numeric comparison, such as (1) both 

agencies utilize non-OPR field agents for delegated investigations at an 

unknown frequency, and (2) the relative complexity of FBI and DEA allegations 

of misconduct is not clear (e.g., DEA/OPR allegations of drug-related 

misconduct ostensibly could be more complicated and require more resources 

per case). However, this comparative exercise is useful in demonstrating that 

no definitive staffing conclusion about FBI/OPR presently can be reached 

without a better understanding of the effect of the Commission’s 

recommendations, which include a more accurate and sophisticated tracking by 

OPR of delegated investigations and their effectiveness. 

 In addition to staffing, the Commission found a number of other aspects 

of the DEA’s disciplinary process informative to this Review, such as: 

• DEA/OPR investigators have term limits and rotate every two or three 

years. 

• DEA/OPR investigators may apply for the position or be assigned. 

Qualities sought in candidates include significant investigative 

experience, writing skills and good judgment. Candidates who have 

been the subject of a minor OPR inquiry also are considered favorably, 

presumably because having endured such an experience brings 

balance and fairness to an OPR investigator’s approach. 

• DEA/OPR investigators are considered favorably for promotion or 

lateral placement at the conclusion of their OPR assignment, partially 

in recognition that an OPR job typically is not a preferred position. 

• DEA/OPR uses written statements, taped interviews, or court reporter 

transcripts to memorialize subject and witness interviews and to deter 

malicious OPR allegations. Each of these three options first requires 

the subject or witness to be sworn under oath. The subject and 

complainant also are given the option to submit to a polygraph, with 

the complainant’s refusal to do so documented in the investigative file. 

(The subject’s refusal apparently is not documented due to MSPB 

considerations.) 

• DEA/OPR’s full-time investigators are divided into four field offices 

and two offices at headquarters. To minimize conflicts-of-interest, the 
Page 38 of 67 

E.

four field offices are staffed with investigators that previously had not 

been placed in that office. Recusals also are encouraged to maintain 

the integrity of OPR’s investigation. 

• DEA/OPR investigators, housed in the Inspection division, submit 

their final report to adjudicators in DEA’s Human Resources division, 

a design intended to maintain the independence of OPR’s 

investigation and adjudication functions. 

 Many aspects of these and other DEA approaches are consistent with the 

recommendations suggested by the Commission. 

OPR Structure

 As has been discussed, OPR’s structure has evolved in an effort to 

achieve fairness while improving efficiency. We maintain that the most 

important way to increase confidence in OPR is to designate and motivate the 

best people for the critical jobs that are OPR’s backbone. 

 One persistent structural issue -- indeed, it was an issue certified to us by 

Director Mueller -- is whether investigators and adjudicators should remain 

organizationally tied to each other as they are now. We received many varied 

opinions on whether the current system is optimal. On the one hand, many 

perceive the adjudicators to be operating as prosecutors, with the investigators 

acting as their agents. The notion that they are neutral fact-finders is belied by 

their function. Agents in the field, in particular, are highly skeptical of this 

system and their ability to receive fair treatment. Others have noted that 

adjudicators and investigators both report through the same chain of command 

to the DAD of OPR, a fact that further supports their perception that the two 

groups are not truly independent. 

 On the other hand, there are obvious efficiencies and synergies that flow 

from this structure. Adjudicators can more readily ensure that the 

investigation is completed to their satisfaction and that bureaucratic delay in 

obtaining investigative follow-up has been reduced. Those involved in these 

units generally believe the current system operates well and oppose a return to 

the original system that housed the two functions in separate divisions. 

 On balance, however, we conclude that the perception of due process and 

fundamental fairness, so crucial to the confidence we wish to restore in OPR, is 

suffering from the current structure, which conclusively tips the scales in favor 

of separation of function. Accordingly, our recommendations will reflect that 

structural change. 
Page 39 of 67 

F. Other Findings

1. OPR Jurisdiction

 We are concerned that OPR’s jurisdiction has expanded to include 

performance issues, which only serve to clog the OPR system, absorb limited 

resources, and diminish the stature of the office itself. Lost property, 

attendance, and other similar matters should be handled in the field as 

performance issues. The current list of OPR offenses, including subcategories, 

consist of over 185 often ill-defined transgressions in need of definition and 

delineation. Until this is done, OPR’s efforts to distinguish performance and 

misconduct matters will be undermined to the considerable detriment of its 

efficiency and fairness. 

2. Automation & OPR’s Intake System

 OPR is generally plagued with inadequate or nonexistent automation 

support, including: 

• OPR does not adequately track incoming allegations; 

• Cases that are formally investigated, while technically tracked, are 

not effectively monitored by software that quickly provides OPR with 

meaningful data, such as whether the case has been delegated to the 

field for action and other important indicators of case status and 

staffing; 

• OPR has difficulty obtaining accurate statistical information on cases 

in a timely fashion, due largely to inadequacies in existing OPR 

technology; 

• OPR’s latest annual report trailed the close of the fiscal year by over a 

year, a delay attributable largely to the failure to capture 

automatically key information throughout the year; 

• OPR’s precedent database is entirely deficient, a finding repeated 

throughout this Report. 

 While we have concluded that the Initial Processing Office has improved 

OPR’s handling and opening of cases, improved technology in this and other 

areas is essential to improving OPR’s timeliness and credibility. 
Page 40 of 67 

3. Procedural Rights

 Interviewees made numerous suggestions relating to the need to clarify 

or add procedural rights for OPR subjects and to ensure the impartiality of 

investigators. We found many of the suggestions to have merit and have 

recommended improvements relating to the following topics: (a) signed, sworn 

witness statements, (b) access to the investigative file, (c) adequate notice of 

allegations and reasonable updates on OPR progress, (d) OPR recusal rules and 

protections against retaliation for investigating or reporting misconduct, (e) 

documentation of communications regarding OPR matters; and (f) protection 

against unfounded allegations of misconduct and selective prosecution of cases. 

4. Adjudications

 In January 1994, Director Freeh established a “bright line” policy of 

discipline, which clarified that “lying, cheating, or stealing” constituted grounds 

for immediate termination.34 The Director provided certain examples of the 

conduct at issue, including voucher fraud, theft, false statements under oath, 

and falsification of investigative activities.35 The “bright line” test has led to 

confusion and undermined the beneficial impact it was intended to have. 

Furthermore, reliance upon the Douglas Factors has implied that FBI 

employees are entitled to full MSPB rights, which they generally are not.36 Our 

recommendations address these issues. 

 We also found significant variability in the experience and background of 

individual adjudicators. While some suggest a benefit from the varied 

backgrounds, which are enhanced by a “team” approach, we conclude that 

confidence in the system can only be achieved if the qualifications of the 

adjudicators are unassailable. We also found that some adjudicators have 

remained in that position for too long and, as with the investigative personnel, 

we recommend term limits. 

 The OPR precedent database is largely unhelpful because of enormous 

variance in decisions over the years and infirmities in automation. Our 

________________________ 34 See Memorandum from the Director, to All SACs, All LEGATs, RCA, NERSC, EPIC, BITC, SITC, 

and Clarksburg Satellite Facility, regarding the “bright line” policy (Jan. 3, 1994). 

35 See id. at 2-3.

36 FBI employees who are preference-eligible veterans are the exceptions to the rule that FBI 

employees do not have MSPB rights. Veterans are preference-eligible if they are disabled or served on 

active duty during certain specified time periods or in military campaigns. Accordingly, the formal 

Douglas Factors should continue to be applied in these cases. 
Page 41 of 67 

5.

recommendation to establish punishment guidelines prospectively should 

render the flawed precedent database obsolete. 

Appellate Process

 The appellate division is functioning well. The three most significant 

appellate issues raised with us are: (1) the appropriate standard of review (one 

of Director Mueller’s certified issues as well), (2) the absence of a non-SES 

member on the appellate board when a non-SES subject is involved, and (3) the 

question of whether a subject can or should be promoted while an OPR 

proceeding or appeal is pending. We address these and other issues in our 

recommendations. 

6. Communication and OPR Transparency

 One of our more significant findings is the lack of communication and 

understanding about OPR in the field, and even among some OPR staff. That 

situation must be addressed through a comprehensive program if OPR is ever 

to reduce the level of distrust and confusion associated with it today. We make 

initial recommendations but realize that the parameters of a comprehensive 

OPR communications program are best reserved for the FBI specialists. 
Page 42 of 67 

IV. RECOMMENDATIONS37

A. Recommendations to Address Perception of Disparate

Treatment 

1. Congress Should Eliminate the Fifteen-Day Minimum

Suspension for SES Officials 

Title 5 of the Code of Federal Regulations, Chapter 1, Subpart F, Section 

752.601(b)(1) states that federal agencies may not suspend a member of the 

Senior Executive Service (“SES”) for less than fifteen days. As a result, when 

disciplining FBI SES managers, if a letter of censure is deemed insufficient 

punishment, OPR officials must impose a suspension of fifteen days or more. 

This gap in available disciplinary options for SES members has contributed 

significantly to concerns of disparate treatment. A number of interviewees told 

us that the tendency is to “round down” to a letter of censure rather than 

“round up” to fifteen days when an offense would ordinarily result in a few days 

suspension. 

For example, a number of interviewees raised the issue of unequal 

treatment of SES and line FBI employees in the context of accidental weapon 

discharges. In 1997, Director Freeh mandated that, absent definitive 

mitigation, accidental discharges of a weapon in disregard of established safety 

procedures would result in a minimum suspension of three days. The 

perception of a number of interviewees is that, pursuant to this mandate, nonSES employees have received three-day suspensions under circumstances 

where SES members received letters of censure. Perhaps contributing to this 

disparity is another perception described by some of the SES interviewees that 

a letter of censure has a greater impact on the career of a senior manager than 

it does on the career of a line employee. 

Despite the perceived tendency to “round down,” it appears that some 

SES members also may suffer as a result of this statutory fifteen-day 

minimum. According to one SES senior manager we interviewed, he received a 

fifteen-day suspension because one of the three members of his Disciplinary 

Review Board believed that he should be suspended for a particular 

indiscretion, but only for one day. Unable to impose the one-day suspension, 

but concerned that a letter of censure was insufficient punishment, the Board 

reluctantly imposed a fifteen-day suspension. 

________________________ 37 We have included a summary matrix of the Commission’s recommendations behind the first tab of 

the Appendix. 
Page 43 of 67 

2.

This Commission joins in OIG’s recommendation -- supported by the FBI 

-- that the Congress abolish the statutory fifteen-day minimum suspension.38 

The FBI may still hold SES employees to a higher standard of conduct in the 

absence of this mandatory, minimum length of suspension. 

FBI Should Develop and Uniformly Apply Effective

“Punishment Guidelines” 

If FBI discipline is to be applied fairly and uniformly, it is critical that 

the FBI establish and apply “punishment guidelines” for use in the OPR 

process. The FBI should establish a working group to study the universe of 

potential OPR offenses, be guided but not bound by past precedent, and assign 

to each clearly-defined offense a narrow range of disciplinary options. Although 

the penalty guidelines for the subset of delegated offenses were a step toward 

establishing a comprehensive set of punishment guidelines, the concept of 

narrow and specific guidelines must be applied to all OPR offenses. 

While some current OPR “guidelines” exist, they assign wide ranges of 

disciplinary options to ambiguously-defined offenses and offense categories. It 

must be clear that, once an offense has been established by a fair investigation, 

disciplinary authorities (whether OPR officials or authorities acting under 

delegated authority in the field) may not depart from the narrow punishment 

options except as authorized under clearly-defined mitigating and aggravating 

criteria. 

 The most comprehensive collection of guidelines regarding disciplinary 

matters is the Schedule of Disciplinary Offenses and Penalties for FBI 

Employees, found in the Manual of Administrative Operations and Procedures 

(“MAOP”), Part 1, Section 13-13. This schedule, however, is only one of 

multiple FBI documents containing guidelines on discipline. For example, a 

Schedule of Delegated Disciplinary Actions exists, as does a list of items that 

are considered OPR matters, found in the Manual of Investigations Operations 

and Guidelines (“MIOG”), Part 1, Section 263-2(5). There is also a Standard 

Offense Code List. 

 Although a wealth of information describes OPR disciplinary offenses and 

their corresponding range of punishments, the policies generally are not useful 

-- they are too broad, in conflict, or merely suggest rather than require a 

particular range of punishments. For example, the Schedule of Disciplinary 

Offenses and Penalties for FBI Employees is preceded by the statement: “This 

schedule is to be used only as a guide in determining appropriate discipline 

________________________ 38 See OIG REPORT I at 72-73 & n.30. 
Page 44 of 67 

3.

based on the violation of regulations by Bureau employees.” The schedule, 

therefore, serves as a recommendation only, and does not set absolute limits or 

list aggravating or mitigating factors that would justify variance from its 

suggested punishments. 

 The Schedule of Disciplinary Offenses and Penalties for FBI Employees 

also is too broad. A number of offenses carry suggested punishment such as 

“Oral reprimand to fifteen-day suspension” or “Oral reprimand to removal.” 

The offense of “Unauthorized possession of, use of, or loss or damage to 

government property other than motor vehicle or aircraft” is listed with the 

recommended punishment of “No action to removal.” Suggested ranges of 

punishment that extend from no action to dismissal are too expansive to be 

useful in applying discipline or educating employees regarding potential 

consequences of their actions. 

 The Standard Offense Code List appears to break down broad categories 

of offenses into subsets that are more useful. For example, drug offenses are 

divided into the categories of sales, possession, purchase, use of marijuana, use 

of hard drugs, pre-FBI employment use, and other similar categories. Although 

this Standard Offense Code List creates subsets for the categories of conduct 

that are considered OPR offenses, it does not appear to create punishment 

ranges that coincide with the subset offenses. 

 Moreover, these policies often appear to conflict with one another. For 

example, the Schedule of Delegated Disciplinary Matters lists the offense of 

absence from the workplace for less than eight hours as a “Level One Offense” 

automatically warranting the maximum discipline of an oral reprimand. The 

Schedule of Disciplinary Offenses and Penalties for FBI Employees, on the 

other hand, provides that the offense of an “Unexcused or unauthorized 

absence of 8 hours or less” be punished with up to a three-day suspension. 

 The Commission submits that one set of meaningful punishment 

guidelines is essential to ensuring uniformity and fairness in the discipline of 

FBI employees. 

Other OIG Recommendations To Address Disparate

Treatment Supported by this Review

 In its reports of November 2003 and November 2002, OIG recommends a 

number of corrective measures to address concerns of disparate treatment, 

some of which are compelling. For reasons previously noted, we did not 

undertake to revisit OIG’s findings. However, criticisms and concerns raised by 
Page 45 of 67 

________________________

a number of interviewees reinforce the need to act on several of OIG’s 

recommendations. 

First, interviewees suggested that the perception of disparate treatment 

has been fueled by uneven application of the “bright line” policy. While 

everyone agreed that Director Freeh had the best of intentions to terminate 

employees who violated the basic ethical requirements of the FBI, in the view 

of some, the “bright line” apparently became the “gray line,” or as one agent 

remarked, it had a “dimmer switch.” Indeed, there was a perception that the 

bright line tended to become more blurry, the higher the rank of the subject. 

OIG has recommended that the FBI decide whether it will maintain this 

“bright line” policy or instead terminate the policy and consider mitigating and 

aggravating circumstances in cases of “lying, cheating, or stealing.”39 We 

recommend that reference to the “bright line” as part of OPR adjudications be 

eliminated at the same time that the FBI reemphasizes that “lying, cheating, 

stealing” type of offenses will not be tolerated and, in most instances, will 

result in termination. 

Second, interviewees noted a perception -- based in fact, according to OIG 

and OPR’s own statistics -- that senior FBI managers occasionally retire or 

resign while under OPR investigation. Because senior managers are more 

likely to be eligible for retirement than lower level employees, they may be 

more apt to retire while under investigation. In such cases, the OPR process is 

halted before a final decision concerning discipline can be made and reflected in 

the (former) employee’s file. 

OIG has recommended that OPR consider pursuing a final decision 

against the former employee in cases where a current employee in the same 

matter receives discipline, as such an investigation likely would not expend 

significant additional resources.40 The Director also may wish to consider 

requiring the OPR process to continue against all former employees, which 

would entirely eliminate the perception that the ability to retire or resign 

fosters disparate treatment. If implemented, some of our suggestions (e.g., 

removing performance matters from OPR), could ease the strain on OPR’s 

limited resources and permit OPR to complete investigations of the relatively 

few employees who retire or resign during the disciplinary process. Thus, we 

reserve this issue for the Director’s future evaluation after an assessment of the 

overall impact of our recommendations. 

39 See OIG REPORT I at 73-74; OIG REPORT II at 38. 

40 See OIG REPORT I at 75. See also notes 24 & 25, infra (providing statistics on the small number of 

employees, including SES employees, who retire or resign under OPR investigation). 
Page 46 of 67 

B.

We also conclude that FBI employees who retire under investigation 

should not be permitted to become paid consultants or contractors for the FBI 

until and unless the OPR process is completed. 

Finally, as noted by OIG, the FBI should proceed carefully when 

considering whether to promote or award bonuses to individuals under OPR 

investigation for serious allegations of misconduct.41 It is our view that, on 

balance, it is better to maintain some level of discretion over such decisions 

rather than issue an absolute prohibition, especially since almost half of all 

employees formally investigated by OPR are not ultimately disciplined. 

Improving the timeliness of OPR investigations will greatly minimize this 

issue. 

Recommendations Regarding OPR Structure

Second only to the controversy surrounding perceived disparate 

treatment in the OPR process is the debate over the proper structure of OPR. 

As discussed previously, OPR’s structure and procedures have changed 

repeatedly, all in good faith attempts to achieve fundamental fairness in a 

process that is inherently controversial. We hesitate to further alter OPR’s 

structure, and provide our suggestions with the knowledge that yet another 

period of adjustment will be required if our recommendations are adopted. 

Nevertheless, while there is no single structural answer to OPR’s shortcomings, 

we have become convinced that the co-location of investigations and 

adjudications within OPR has caused considerable consternation and detracted 

from the credibility of the disciplinary process. 

The reorganization in 1997 merged adjudications and investigations into 

the same division. The benefit has been, in some instances, efficiency and more 

timely resolution of OPR matters. We do not discount the importance of 

resolving OPR investigations as swiftly as possible consistent with 

fundamental fairness. Nevertheless, there is a strong perception in the field 

that adjudicators, rather than acting like neutral judges as their title would 

connote, operate more like prosecutors, with the investigators serving as their 

agents. 

There may be a tendency for the adjudicators in this perceived role to 

become invested in directing and “making their case,” thereby eliminating one 

of the important checks in a disciplinary system dedicated to fairness. The 

adjudicator, who serves as a proposing or deciding official depending on the 

case, should not be perceived as partial. Therefore, the Commission 

________________________ 41 See id. 
Page 47 of 67 

recommends that adjudications and investigations be returned to separate 

divisions. We offer the following structural improvements for consideration: 

• Investigations should return to the Inspection Division, reporting to 

the AD of Inspections. The new Supervisor of the Investigations 

Section within the INSD should direct both the IPO and the 

Investigative Unit, effectively serving in an oversight capacity similar 

to the current DAD of OPR. Consistent with current practice, the 

proposed Investigative Unit should supervise delegated field 

investigations only (DIOs). However, as discussed below, delegated 

investigations and adjudications (DIAs) should be monitored by 

adjudication officials at headquarters, not the IPO. 

• Adjudications should return to the Administrative Services Division, 

reporting to the AD of Administrative Services. The DAD of 

Administrative Services should serve as the deciding official for all

non-delegated adjudications, with the OPR adjudicator the proposing 

official, both of whom would be guided by the newly-developed 

punishment guidelines previously described. Proposed discipline by 

field adjudicators in less serious, delegated adjudications (DIAs) 

should no longer be monitored and approved by OPR’s Intake Unit 

(which, according to our recommended structure, would move to the 

Inspection Division), and instead should be supervised by adjudication 

official(s) at headquarters. These supervisory adjudicators may 

request additional investigation, if necessary, but their primary 

function in DIAs should be limited to serving as a safeguard against 

any aberrant and unjustified punishment recommendations by field 

adjudicators. Our proposed punishment guidelines should minimize 

this risk, and we thus would expect the supervisory adjudicators to 

afford great deference to the judgment of field adjudicators in these 

less serious, DIA cases. 

• The Appellate Unit, which generally appears to be functioning well, 

should move from the Inspection Division to ensure independence 

from Investigations and become a stand-alone division reporting 

directly to the FBI Deputy Director. Additional recommendations 

regarding the appellate process and DRB composition are discussed 

infra. 

• Investigations and adjudications should each be headed by a highly 

regarded, senior level official with extensive field experience, likely a 

Section Chief. 
Page 48 of 67 

The following three charts reflect the OPR structure proposed by the 

Commission. 

Chart 4: Proposed Inspection Division

 Initial Processing 

Office

Organizational 

Program Evaluation 

and Analysis Unit

Audit 

Unit 

Internal 

Investigative 

Unit 

Major Project 

Management

Oversight Unit

Inspection 

Management Unit 

Office of Professional

Responsibility Section 

(Supervisor of Intake and 

Investigations) 

Office of 

Inspections 

Section 

Audit, Evaluation 

and Analysis

Section

Deputy 

Assistant Director 

Assistant Director
Page 49 of 67 

 Chart 5: Proposed Administrative Services Division

Deputy Assistant Director

Personnel Management 

Branch (Deciding Official)

OPR 

Adjudication 

Section 

(Proposing 

Official) 

Deputy Assistant Director

Operational Support and

Facilities Management

Resource 

Management 

and 

Allocation 

Staff 

Human 

Resources 

Management 

Section 

Personnel 

Assistance 

Section 

Applicant 

Processing

Unit 

Executive 

Development

and Selection 

Program 

Section 

Facilities 

Management 

Section 

Budget and 

Administrative 

Analysis Unit 

Assistant Director
Page 50 of 67 

Chart 6: Proposed FBIHQ Organizational Structure

(Substructure Included Only for Divisions Affected by Recommendations) 

Director 

Deputy Director

Executive

Assistant Director

for Administration

Executive Assistant 

Director 

for Law Enforcement 

Services

Office of

Strategic 

Planning

Security Division

Finance Division

Information 

Resources 

Division

Records 

Management 

Division

Administrative

Services

 Division

Office of Law

Enforcement

Coordination

Office of

International 

Operations

Critical Incident

Response 

Group

Criminal Justice 

Information 

Services Division

Training Division

(LEEU) 

Laboratory

Division

Investigative

Technology

Division

Executive Assistant 

Director 

for 

Counterterrorism/ 

Counterintelligence

Office of General 

Counsel 

Office of Public 

Affairs

Office of

Congressional 

Affairs

Office of the 

Ombudsman 

Appellate 

Division (new) 

Inspection

Division 

Executive

Assistant Director

for Intelligence 

Operational 

Support & 

Facilities 

Management 

Branch 

Office of

Inspections 

OPR 

Investigations 

Section 

Audit Evaluation

& Analysis 

Personnel 

Management 

Branch 

Resource 

Management 

& Allocation

Staff

Human 

Resources 

Management 

Branch 

Personnel 

Assistance

Section 

Office of Equal 

Employment 

Opportunity

Affairs

Office of Chief 

Information 

Officer

OPR 

Adjudications

Section

Executive Assistant 

Director 

for Criminal 

Investigations 
Page 51 of 67 

C.

 To ensure that the separation of investigations and adjudications does 

not delay case resolution, strict time limits and streamlined procedures should 

be developed to minimize beauracratic delay. Recommendations regarding 

timeliness are discussed further in the following sections. 

Recommendations Regarding DOJ/OIG Oversight

 Some interviewees recognized the value of DOJ/OIG oversight of the FBI 

disciplinary process, partially due to distrust of OPR and its performance, but 

suggested three process improvements in cases investigated by DOJ/OIG: 

(1) better training of DOJ/OIG investigators to alleviate perceptions of 

variable investigative quality; 

(2) rotations of FBI/OPR investigators through DOJ/OIG to provide 

practical insight and institutional knowledge of the FBI to DOJ/OIG 

investigators. Such appointments, which presumably would have 

term limits, also would provide these rotating FBI agents a level of 

insulation and independence from any potential FBI influence when 

participating in investigations of other FBI personnel; and, 

(3) DOJ/OIG’s adoption of procedural rights that FBI/OPR affords to FBI 

employees under investigation. 

 As to the last suggestion, some interviewees believe that DOJ/OIG, in 

practice, does not always inform subjects that they are under investigation or 

advise them of their rights to the same degree as FBI/OPR. However, 

DOJ/OIG’s formal investigative procedures state that OIG “normally” provides 

subjects of administrative investigations of misconduct written notice and a 

summary of the alleged misconduct within thirty days of the OIG’s initiation of 

an investigation.42 (Subjects of criminal -- as opposed to administrative -- 

investigations are not similarly notified.) Also, DOJ/OIG’s policy “normally” 

requires that subjects receive an administrative or criminal advisement of 

rights, depending on the nature of the allegation. 

 The Commission has not independently verified whether DOJ/OIG, in 

fact, routinely notifies subjects of administrative investigations or advises them 

of their rights. However, the Commission recommends that DOJ/OIG promptly 

inform administrative subjects of the opening of all cases, as well as advise 

them of their procedural rights, and that criminal subjects be notified unless 

doing so would jeopardize the investigation. 

________________________ 42 See Memorandum from Glenn Fine, Inspector General, DOJ, to Director Mueller, entitled “OIG 

Investigative Procedures” at 1, exhibits 1, 2 (July 24, 2003). 
Page 52 of 67 

D. Recommendations Regarding OPR Jurisdiction

OPR’s jurisdiction has expanded over the years and, despite attempts to 

differentiate between performance versus OPR issues, it is difficult to reduce 

the jurisdictional span of a bureaucratic entity such as OPR. We recommend 

that the Director appoint a working group to delineate performance versus 

OPR issues. OPR’s jurisdiction should be reserved for serious cases of 

misconduct, not as a clearinghouse for any conceivable issue related to an 

employee’s behavior. The SACs are willing and able, with possible assistance 

from Personnel Officers and the Administrative Services Division, to manage 

performance issues. 

We have received input from some interviewees on where to draw the line 

between performance and OPR misconduct issues, and we will provide that 

information for the working group’s consideration. 

E. Recommendations Regarding OPR Components

1. Automation and the Intake System

With regard to the IPO or intake office, we generally have found that it 

has been successful in bringing uniformity to the case opening process. 

Accordingly, under our proposed restructuring, the Intake Officer, who 

optimally is an experienced field investigator and supervisor, should coordinate 

with the new Section Chief of Investigations to open OPR matters as 

appropriate. 

In contrast to the existing OPR intake structure, however, DOJ/OIG and 

the IPO/Intake Supervisor should review all complaints concurrently -- the IPO 

or Intake Supervisor (presently the DAD of OPR) should not assess and classify 

the allegation prior to DOJ/OIG review. This straightforward procedural 

change still would permit the IPO to assign an administrative serial number to 

the allegation, but would eliminate any perception that FBI/OPR substantively 

reviews cases before DOJ/OIG’s authorization. 

The following, additional recommendations should be considered to 

improve the intake system: 

(1) OPR must immediately automate an effective case tracking system 

for all allegations; 

(2) OPR should promulgate a policy concerning the handling of 

anonymous complaints -- the policy should list the standards and 

practices to be followed when an anonymous complaint is made 
Page 53 of 67 

2.

and, unless an anonymous complaint can be independently verified 

as credible and specific, it should not be pursued; and, 

(3) The OPR referral system should be clarified, simplified and 

centralized. Consideration should be given to establishment of a 

complaint hotline, including an 800 number and internet referrals. 

Ineffective automation has contributed to a number of problems in the 

OPR process, including delay, loss of confidence in the system, and an inability 

to trend or learn from precedent or other historic experience. We urge 

immediate attention to automation in multiple areas. 

More generally, OPR should have access to improved hardware and 

software to discern and catalogue meaningful and immediate information about 

cases, such as how many days a case has been in Investigations or 

Adjudications, whether the case has been delegated to the field and for how 

long, and which OPR personnel have been assigned to the matter. OPR should 

be able to provide year-to-date totals without delay on such issues as types of 

discipline imposed per offense and the grade of the subject, and a supervisor 

should have the capability to review a full electronic history of a matter, 

including investigators’ electronic notes of actions on the matter, electronic 

signed, sworn statements, and matter status. 

The Commission has concluded that these types of automation 

enhancements are essential for improving timeliness, accountability, and 

overall credibility in the disciplinary process. 

Investigations

Our Review identified multiple issues relating to investigations and 

whether they are being conducted promptly and fairly. As discussed 

previously, we suggest separating investigations from adjudications and submit 

that a single investigative unit is appropriate. As with every area of OPR, we 

are concerned that OPR fails to attract the most qualified personnel for these 

key positions. An established career benefit must be created to help incentivize 

top agents to serve in an OPR capacity, including protection against the risk of 

retaliation by subjects during the OPR employee’s subsequent career 

development (e.g., strict Career Board recusal rules, etc.). We also believe that 

a term limit of three years should be mandatory. 
Page 54 of 67 

Procedural Rights & Additional Process Considerations

During the course of our interviews, we received numerous suggestions 

about enhancing the procedural rights of OPR subjects and improving the 

manner in which investigations are performed. We found a number of the 

suggested improvements to be worthy of consideration: 

• Signed, sworn witness statements should be mandatory for interviews 

of all subjects, employee witnesses,43 and complainants,44 subject to 

one exception for statements of admission, as explained, infra. 

Complainants requesting confidentiality should have their identities 

protected and statements appropriately redacted if the investigative 

file is requested by the subject, consistent with FBI/OPR’s current 

practice. For statements by non-FBI witnesses, investigators should 

have the discretion to utilize either a signed, sworn statement or a less 

formal internal memorandum, which does not require the interviewee 

to be sworn under oath or to review the memorandum (e.g., an FBI302).45 All individuals giving a signed, sworn statement should be 

able to add excluded facts to their sworn statement before signing it. 

________________________ 43 The following highlights the procedural confusion that exists in a number of areas: currently, if the 

case is Delegated for Investigation Only (DIO) or a Non-Delegated Investigation (NDI), signed, sworn 

statements (“SSSs”) are required for all FBI employees, both subjects and witnesses. See “Guidelines to 

Conducting OPR Investigations, Delegated Investigation/Adjudication, Delegated Investigation, NonDelegated Investigation, Preliminary Inquiries” at 8, 14 (revised Sept. 10, 2002). In contrast to DIOs 

and NDIs, the most recent guidelines on conducting Delegated Investigation/Adjudication (DIA) 

matters indicate that the use of SSSs is discretionary in DIA matters. See “Guidelines for Conducting 

Delegated Investigation/Adjudication OPR Matters” at 2 (revised July 18, 2003). Although the 2003 

guidelines indicate that SSSs are discretionary in all DIAs, two earlier OPR documents, which do not 

appear to have been superseded, require SSSs for Level Three and Four DIAs. See “Guidelines to 

Conducting OPR Investigations, Delegated Investigation/Adjudication, Delegated Investigation, NonDelegated Investigation, Preliminary Inquiries” at 13-14 (revised Sept. 10, 2002); Electronic 

Communication from OPR, to All Divisions, entitled “Delegation of Disciplinary Action Authorities to 

EADs, ADICs, SACs and FBIHQ Division Heads” at 4 (July 18, 2002). Under these two older policies, 

FBI employees may avoid making a signed, sworn statement if the case is a DIA involving a Level One 

or Two offense and the subject submits a communication that resolves all pertinent issues and 

acknowledges responsibility for the offense. See “Guidelines to Conducting OPR Investigations, 

Delegated Investigation/Adjudication, Delegated Investigation, Non-Delegated Investigation, 

Preliminary Inquiries” at 13-14 (revised Sept. 10, 2002); Electronic Communication from OPR, to All 

Divisions, entitled “Delegation of Disciplinary Action Authorities to EADs, ADICs, SACs and FBIHQ 

Division Heads” at 4 (July 18, 2002). 

44 At this time, complainants are not uniformly asked to give signed, sworn statements. 

45 Current OPR policy does not permit the use of SSS for non-FBI employees. See “Guidelines for 

Conducting Delegated Investigation/Adjudication OPR Matters” at 2 (revised July 18, 2003); 

“Guidelines to Conducting OPR Investigations, Delegated Investigation/Adjudication, Delegated 

Investigation, Non-Delegated Investigation, Preliminary Inquiries” at 8 (revised Sept. 10, 2002).
Page 55 of 67 

________________________

• The practice of allowing subjects in certain DIA cases to submit a 

statement of admission instead of enduring a formal interview and 

giving a signed, sworn statement should be retained and broadened to 

include additional non-serious offenses.46 The practice should be 

utilized as early as possible in the disciplinary process and be more 

widely publicized to the field. In addition, the FBI should clarify the 

advantages of the practice, which allows employees to acknowledge 

mistakes early in the OPR process, to accept an immediate 

punishment according to the guidelines, to avoid a lengthy 

investigation and adjudication, and to resolve the matter 

expeditiously. 

• A number of people suggested that subjects should be able to refute 

allegations early in the process. We hesitate to recommend a strict 

policy on this issue because it could place undue pressure on a subject 

to come forward or risk a likely assumption that he/she is guilty. 

OPR’s written notification to subjects of the nature of the allegation, 

while perfunctory, does include a statement that the subject can 

provide a written response.47 

 We do conclude that a subject should be allowed, if they so choose, 

to provide the names of witnesses, provide documentary evidence, 

and/or make a written statement early in an investigation if they wish 

to do so. This recommendation would help address the criticism, 

articulated by some interviewees, that key witnesses were not 

interviewed until late in the process or not at all. 

• A number of interviewees recommended the tape-recording of all 

statements, whether of a subject, employee witness, or complainant, 

as back-up to the signed, sworn statement. Some interviewees 

expressed concern that because signed, sworn statements are drafted 

by investigators, they may be incomplete or overly critical of the 

subject. Moreover, facts not included in the statement because they 

appeared unimportant at the time may become more relevant, 

especially if a lack of candor issue arises. A record of the interview 

46 See discussion, supra note 43. 

47 The subject receives three OPR forms when he signs the OPR Notification Form. One of these forms, 

OPR-1, is entitled, “The FBI’s Disciplinary Process.” A portion of that document states, “You are 

directed to identify, during your interview or as soon as possible thereafter, any testimony, documents 

or other evidence which you believe are exculpatory or favorable, so OPR can conduct appropriate 

investigation. Pertinent written documentation or other related material presented by you or your 

attorney will be made a part of the OPR file, and will be considered before any administrative action is 

decided.” 
Page 56 of 67 

________________________

would ensure neutral accountability for both investigators and 

interviewees should disputes arise about the content of the interview, 

the manner in which it was conducted or the motivation for making a 

misconduct allegation to OPR. 

• The Commission recommends that investigators be required to include 

all exculpatory evidence in the final investigative packet. 

• Subjects should be able to view the investigative file, including their 

own statements again, before an adjudication has been made. (If a 

complainant requests anonymity, the file should be appropriately 

redacted, as mentioned previously.) This access should include the 

ability to review the referral statement that initiated the OPR 

investigation. Currently, only SES employees and subjects of 

proposed adverse actions are entitled to review the file prior to final 

adjudication. This opportunity should be expanded to all employees 

regardless of the level of discipline. 

• Subjects must be informed of the allegations against them in a timely 

and comprehensive fashion. Some interviewees believe that timely 

notice has been the exception rather than the rule. Most importantly, 

subjects must be provided sufficient detail to understand the 

allegations against them and to defend themselves. 

• Subjects receive notification after 180 days, and every thirty days 

thereafter, if an allegation remains under investigation,48 but OPR has 

no policy of informing subjects of OPR’s progress. It is the 

Commission’s view that, given the lack of timeliness in many OPR 

matters, subjects should know after the first sixty days: (1) if the 

matter is being handled by DOJ/OIG or FBI/OPR, (2) whether the 

matter is in the investigation or adjudication phase, and (3) if the 

matter is in OPR’s investigative phase, whether the complainant has 

been interviewed, and when OPR realistically expects to conclude the 

investigation. 

• With regard to delegated investigations only (DIOs), the chain of 

command for reporting the investigator’s findings should be directly to 

the new OPR Investigations Section in the Inspection Division at 

headquarters, not through the local office. (The input of the local 

48 The initial 180-day time limit and the requirement that the subject be notified every thirty days 

comes from the BADGE settlement. See Settlement Agreement Amendment at 5, Johnson v. Reno, Civ. 

No. 93-0206 TFH (D.D.C. May 17, 2000). 
Page 57 of 67 

________________________

office into mitigating and aggravating factors may be solicited by 

Adjudicators after they receive the final investigation package from 

the Inspection Division.) Delegated investigations and adjudications 

of minor offenses (DIAs) should continue to be handled almost entirely 

in the field, with limited headquarters involvement by supervisory 

adjudicators, as previously described. 

 Regardless of whether the delegated investigation is a DIO or DIA, 

consideration should be given to whether an investigator from the 

subject’s same office should handle the OPR or whether an 

investigator from another office should assume the responsibility. 

One significant factor in this decision is the size of the field office or 

resident agency, with smaller offices less likely to have multiple 

chains of command to insulate and separate a field investigator from 

the subject. 

• FBI’s recusal rules should be modified to require expressly that a 

subject of an OPR must not, in any future capacity (e.g., career board, 

inspections, performance evaluations, etc.), have input into evaluating 

his/her OPR investigator or adjudicator.49 Serious consideration 

should be given to adding a senior OPR official to the career board 

(SES, Mid-Level and Field Career Boards) of any candidate who has 

OPR experience. The OPR representative could serve in either a 

voting or advisory capacity.50 This addition would help to prevent any 

possible retaliation against an employee who participated in the FBI’s 

disciplinary process and to ensure that these OPR positions generally 

become career enhancing rotations. 

49 The FBI does not have a written a policy to protect OPR employees by limiting who may sit on their 

career boards, aside from a limited rule prohibiting nepotism. See FBI Manual of Administrative 

Operations and Procedures, Part 1, 1-15.4. In contrast, the FBI has drafted a recusal policy restricting 

who may participate in an OPR matter. This policy protecting OPR subjects lists several categories of 

individuals who “will recuse themselves” from participating in an OPR case. One category is 

individuals who have brought a complaint against the subject or who have been the target of a 

complaint brought by the subject. See “Disciplinary Policy Guidance, Recusal Policy in Disciplinary 

Matters” (listing multiple grounds for recusal). While the current policy is well reasoned and 

appropriate, additional restrictions could be added. For example, the FBI should consider an explicit 

prohibition on investigating or adjudicating personal friends or members of the same task force or team 

unit. 

50 The FBI permits certain nonvoting agents to attend career board meetings and represent the 

interests of its constituency. See, e.g., FBI Manual of Administrative Operations and Procedures, Part 

1, 3-3.4 (allowing for a nonvoting, minority representative in the absence of a minority representative 

on the voting board). 
Page 58 of 67 

________________________

• As a corollary recommendation, we also suggest that candidates for 

promotion receive the identities of all career board members in 

advance (including any replacements who may be designated by the 

appointed member), which will enhance the ability of candidates with 

OPR experience to identify potential conflicts relating to discipline 

before career board decisions.51 

• All communications about an OPR matter should be documented 

formally and thoroughly in the subject’s file. Several interviewees, 

including an OPR adjudicator, suggested that this requirement would 

help alleviate any perception that OPR matters are influenced by offthe-record discussions, whether for benevolent or vindictive purposes. 

• The FBI should publish a policy outlining the information that can be 

provided to an OPR subject, witness, and complainant, including an 

explanation of the Privacy Act, and what information they can share 

with others. Some interviewees expressed frustration that OPR 

investigators may have exaggerated privacy concerns by warning 

them not to discuss the OPR matter with anyone (even spouses). This 

rigid approach may unnecessarily alienate witnesses and 

complainants, as well as intimidate subjects into not defending 

themselves or attempting to obtain exculpatory materials. Currently, 

too much variability exists in the information and guidance provided 

to subjects, witnesses, and complainants, depending on the OPR 

employee who fields the question. 

• A number of interviewees believed that investigators stray 

unnecessarily from the initial allegations of misconduct and expand 

investigations inappropriately. Some observers have analogized this 

perceived “witch hunt” mentality to criticism of the Independent 

Counsel statute, noting the need to address whether OPR’s mandate 

to investigate should be confined to the initial misconduct complaint. 

 The Commission recognizes that while it certainly may be 

appropriate for an OPR investigation to exceed the parameters of the 

original allegations, particularly if additional serious misconduct is 

identified, a presumption should exist against such collateral reviews. 

Any charges added to the investigation should be approved by a 

51 While the Commission has been informed that the career board process is transparent and the 

participants generally known by title, specific agent names and replacement members may not be 

conveyed to the candidate in advance. We are of the view that this procedural safeguard can be 

accomplished with modest imposition on career board participants. 
Page 59 of 67 

3.

supervisor not conducting the original investigation and promptly 

conveyed to the subject. We recommend that the FBI develop criteria 

to identify which subset of misconduct allegations are sufficiently 

serious to warrant an expansion of the initial investigation, an 

exercise dependant on our recommendation that the FBI first redefine its existing offenses and develop punishment guidelines. 

• To supplement our recommendation that the FBI appoint a working 

group to establish streamlined offenses and punishment guidelines, 

two types of misconduct should be highlighted as independent grounds 

for discipline: (1) bringing false and malicious claims of misconduct 

against an FBI employee, and (2) retaliation, whether against a 

complainant for bringing a good faith complaint or against any 

FBI/OPR employee for performing OPR duties. While these categories 

of misconduct may be a basis for discipline under current OPR offense 

codes, we believe that they warrant further emphasis by the FBI given 

the sensitivity of these areas to multiple interviewees.

Adjudications

Again, as discussed above, the adjudicative and investigative functions 

should be separated into different divisions. As with investigations, we submit 

that a single adjudication unit is appropriate and that three-year term limits 

should be mandatory. We have found that many people remain confused about 

the standards for adjudication, including whether the “bright line” test remains 

viable and how the Douglas Factors are to be applied, if at all. We also 

determined that there is significant variability in the experience and 

background of individual adjudicators. Accordingly, we make the following 

recommendations: 

• Adjudications should be fully professionalized -- as with 

investigations, the Director must ensure the recruitment of highly 

competent, fully trained adjudicators who perceive the OPR 

position as a positive for career development. 

• Enhanced recusal rules should be strictly and uniformly enforced to 

protect OPR adjudicators and investigators from any potential 

negative career impacts. 

• As stated previously, we recommend that the Director appoint a 

working group of, at minimum, experienced FBI field investigators 

and supervisors to establish definitively the elements of OPR 
Page 60 of 67 

offenses and to better delineate degrees of misconduct versus 

performance issues. 

• As stated previously, the working group also should establish 

punishment guidelines, complete with aggravating and mitigating 

factors (as replacement for the Douglas Factors), to diminish the 

perception of vagueness that leads to disparity. Consideration 

should be given to having three levels of penalty for each offense, 

with the middle of the three levels the default unless aggravating 

or mitigating factors justify the higher or lower punishment. The 

vernacular of the “bright line” test should be eliminated, although 

the principle behind it -- termination for offenses relating to “lying, 

cheating, and stealing” -- should be reiterated. The existing 

precedent database can be utilized to assist in establishing the 

guidelines, but should be eliminated as a future reference source 

because of its enormous variability. 

• As stated previously, the fifteen-day minimum for suspension for 

SES employees should be eliminated. The Commission recognizes 

that the FBI cannot implement this recommendation unilaterally 

and that Congressional action is required. 

• To respond to the criticism that the proposing official (adjudicator) 

is too close to the deciding official, the deciding official should have 

the benefit not only of the proposed discipline but also the subject’s 

response when reaching a decision. Therefore, subjects of 

disciplinary actions, regardless of the severity (e.g., including 

letters of censure), should have a right to review the investigative 

file before submitting a response to the deciding official. 

• A subject’s case should be closed as soon as he/she is cleared of the 

allegations, regardless of whether there are other ongoing OPR 

investigations into the incident. 

• A subject who is cleared should be immediately returned to his/her 

previous position with full privileges, including restoration of any 

lost salary and routine grade advancements. Such allegations 

should not be considered by the Director or career boards in 

promotion decisions. 
Page 61 of 67 

4. Appellate Process

We found the appellate process to be the least controversial aspect of the 

FBI’s disciplinary process. The three most significant appellate issues we 

identified are: (1) the appropriate standard of review, (2) the absence of a nonSES member on the appellate board when a non-SES subject is involved, and 

(3) the question of whether a subject can or should be promoted while an OPR 

proceeding or appeal is pending. The following are our recommendations: 

• We were told that in many instances a “clear error” or “substantial 

evidence” standard of review is, in fact, being used for OPR 

appeals, even though the standard of review is supposed to be de 

novo.52 We believe that the standard of review should be clarified 

and that a substantial evidence standard is most appropriate. The 

de novo standard is impractical and unnecessary, if it ever really is 

applied. We wish to emphasize, however, that the heightened 

standard of review still will enable the appellate body to remedy 

errors in the investigation and adjudication phases, as well as 

permit the appellate body to continue to serve as an important 

check and balance on the entire OPR process. 

• Non-SES subjects should have a voting, non-SES individual 

included on their three-member Disciplinary Review Board. (In 

these cases, the subject still would be permitted to choose one of the 

two SES members of the DRB, with the non-SES member chosen at 

random from a standing panel of candidates.) While some concerns 

have been raised that a non-SES member of the DRB will feel 

intimidated, on balance the inclusion of a non-SES representative 

would add to the perception that the system is not tilted in favor of 

SES subjects. 

________________________ 52 The “substantial evidence” standard of review requires the appellate body to affirm the lower body’s 

findings if supported by substantial evidence, defined as “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” See Federal Trade Commission v. Indiana 

Federation of Dentists, 476 U.S. 447, 454 (1986) (quoting Universal Camera Corp. v. National Labor 

Relations Board, 340 U.S. 474, 477 (1951)). Another articulation of the test explains substantial 

evidence is evidence furnishing “a substantial basis of fact from which the fact in issue can be 

reasonably inferred...[It is] more than a scintilla, and must do more than create a suspicion of the 

existence of the fact to be established.” See National Labor Relations Board v. Columbian Enameling 

& Stamping Co., 306 U.S. 292, 299-300 (1939). 

 
Page 62 of 67 

• The DRB should be selected from a standing group of people with 

substantial institutional FBI knowledge who have a context of 

experience in which to make a decision. 

• We found a significant split in opinion as to whether an OPR 

subject should be promoted during the pendency of a matter. The 

best way to minimize this issue is to ensure the timely resolution of 

all OPR matters and to delineate clearly between performance and 

serious misconduct matters. Recognizing the reality that it will not 

always be possible to quickly conclude a matter, we believe the 

need for some flexibility and discretion in promotional decisions 

rather than an absolute prohibition is preferable. However, the 

presumption against promotion during the pendency of an OPR 

makes sense absent due diligence that satisfies the career board 

that the OPR matter lacks merit or is peripheral to the criteria 

critical to promotion. 

• The precedent database is deeply flawed and, prospectively, the 

FBI should develop and maintain a comprehensive, computerized 

database of decisions. 

• Currently, a subject (1) cannot have a DRB review the case when 

appealing a “non-adverse action” (the appeal would be decided by 

only one official), (2) cannot appeal letters of censure or oral 

reprimands -- relatively minor discipline that nonetheless could 

negatively affect a subject’s career advancement, and (3) cannot 

access his/her file when appealing a non-adverse action. We are 

recommending the elimination of the “non-adverse action” 

distinction and, accordingly, anyone appealing suspension, 

regardless of severity, demotion or termination (1) should have the 

appeal decided by the DRB, and (2) should receive access to the file. 

We also recommend allowing subjects to appeal oral reprimands 

and letters of censure, with the appeal decided by one official in the 

Appellate Unit (e.g., the Chairperson of the DRB) rather than by 

the entire DRB. Subjects appealing these less severe forms of 

discipline also should have access to the file. 

 We anticipate that the DRB’s workload will increase as a 

result of this recommendation, perhaps necessitating additional 

resources to ensure timeliness. While we are reluctant to expand 

the DRB’s mandate, we view the fairness and uniformity it would 

infuse into the disciplinary process as essential to OPR’s credibility. 
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________________________

• The DRB currently has the authority to increase punishment on 

appeal, although it rarely, if ever, does so. The Commission 

recommends the removal of this discretion to enhance discipline on 

appeal, replacing it with an advisory power to remand a matter 

back to Adjudications for further consideration of aggravating 

factors articulated by the DRB (or by the single appellate official). 

The adjudication official nonetheless may determine on remand 

that increased punishment is not warranted. If the adjudication 

official does impose greater discipline, the subject should be 

allowed to appeal that result to ensure that the level of increase is 

not excessive. 

• Subjects or their attorneys should have the right to make a 

statement to the appellate official(s) and to answer questions, 

whether in-person or telephonically. 

• Subjects should receive a brief written explanation of the appellate 

officials’ findings and decision, a requirement under OPR’s existing 

policies that may not always be followed in practice.53 A subject 

currently may receive a boilerplate letter54 describing the ultimate 

decision on appeal without any articulation of the specific reasons 

(e.g., findings) justifying that outcome. We do not recommend 

requiring the DRB or single appellate official to provide the subject 

with a lengthy recitation of their deliberations, but they should 

briefly include in their notification letter the basic factors 

supporting the decision. It appears that the Deputy Assistant 

Director of the Inspection Division, when serving as the appellate 

official in a case, has followed a more thorough and favored 

approach to notification letters. The Commission reviewed several 

letters from the DAD to subjects that included a discussion of the 

factors contributing to the appellate decision.55

53 See OPR Form OPR-1, entitled “The FBI’s Disciplinary Process” at 3 (Jan. 13, 1999) (explaining that 

when the DRB reviews an individual’s case, the individual “will be notified in writing of the DRB’s 

findings and decision”). 

54 For an example of the type of notification letter that a subject receives after the DRB’s conclusion, see

Sample Notification Letter from the Assistant Director, Inspection Division, to a Subject, regarding the 

Disciplinary Review Board’s Consideration of the Subject’s Appeal (Mar. 31, 2003), available in the 

Appendix. 

55 For an example of the type of notification letter that a subject receives from the DAD of Inspections,

see Sample Notification Letter from the Deputy Assistant Director, Inspection Division, to a Subject, 

regarding the Deputy Assistant Director’s Consideration of the Subject’s Appeal (June 10, 2003), 

available in the Appendix.
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5.

• Post-appeal consideration of misconduct: the FBI’s current practice 

in promotion decisions is to consider misconduct allegations and 

discipline within the past three years.56 The Commission concurs 

that this limitations period is appropriate for employees subject to 

most forms of administrative discipline. However, we submit that 

when the Director and career board members make promotion 

decisions, they should be permitted to consider the most severe 

types of misconduct for a retrospective of longer than three years. 

Consistent with our broader recommendation that the FBI 

streamline offenses and better delineate degrees of misconduct 

versus performance issues, we recommend that this working group 

(1) identify the most serious subset of these new misconduct 

categories relevant to promotion decisions,57 and (2) suggest an 

appropriate limitations period for the most serious offenses. 

Communication and OPR Transparency

Mindful of the need for privacy and confidentiality, the FBI’s disciplinary 

process must become more transparent and understandable to the average field 

agent and support person. The perceived complexity and actual nuances in the 

current process are overwhelming. 

Once the Director has determined which of our recommendations to 

adopt, OPR policy statements and the appropriate sections of the Manual of 

Investigations Operations and Guidelines (“MIOG”) and Manual of 

Administrative Operations and Procedures (“MAOP”) should be revised, 

republished to the field and communicated through a comprehensive program 

that includes field meetings and effective electronic communications. Case 

descriptions and updates should be summarized and communicated to the field 

routinely and no less than bi-annually. The FBI should provide subjects with 

more information on how the process works -- a road map of what to expect. A 

counselor who can explain the system would help ensure acceptance of the 

revised disciplinary process. A new, comprehensive collection of all guidelines, 

procedural rights and forms, process descriptions, tables, statistics, graphs, 

contact information if questions arise, and other pertinent information should 

be collected in one FBI disciplinary manual and provided to every FBI 

employee on a routine basis. 

________________________ 56 See, e.g., FBI Manual of Administrative Operations and Procedures, Part 1, 3-3.2.2. 

57 This subset of the newly-defined OPR offenses conceivably could overlap in total or in part with the 

second subset of offenses that we have recommended, supra, that the working group identify as 

sufficiently serious to overcome the presumption against expanding investigations beyond the original 

misconduct allegations. 
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6. Law Enforcement Ethics Unit & Training

 The Law Enforcement Ethics Unit (“LEEU”) of OPR, formed in 1996 as a 

stand-alone unit within the Training Division (“TD”), has become controversial 

to those who believe the FBI has abandoned LEEU’s intended mission. Our 

understanding is that LEEU’s original purpose was to furnish the ethics 

component of the FBI’s training curriculum at Quantico. We interviewed 

several current or former FBI officials from LEEU, and they expressed their 

perception and concern that the FBI is deemphasizing and marginalizing 

LEEU. We are unable either to endorse or criticize LEEU’s curriculum or 

format for general ethics training, but we do have a number of 

recommendations regarding LEEU that we believe would improve OPR. 

 The FBI’s recent re-engineering efforts have included the consolidation of 

most training into the TD. One question has been whether the LEEU also 

should be relocated from OPR and returned to its original location in the TD. 

The Commission has concluded that the LEEU should be moved to the TD, but 

for reasons that may not be immediately obvious. 

 The organizational location of LEEU in either OPR or the TD is not as 

significant to us as its mandate and impact on training. LEEU is physically 

housed at the FBI Academy in Quantico, Virginia, near the TD (also located at 

the Academy) but removed from OPR headquarters in Washington, D.C. 

Therefore, the LEEU would need to coordinate with one external unit (whether 

OPR or the TD) regardless of its organizational location within the other. It 

may be more efficient for LEEU to be part of the TD given their physical 

proximity, but the Commission does not consider the technical location of the 

LEEU the critical factor in moving it to the TD. 

 More importantly, the Commission views LEEU as ancillary to OPR’s 

core function of investigating and adjudicating allegations of serious 

misconduct. One justified criticism of OPR is that it has expanded beyond this 

exceptionally important but narrow mission, diluting its reputation and efficacy 

in the process. 

 It appears that the LEEU’s function of ethics training, while certainly 

important to reduce misconduct and thus related to OPR’s mandate, is more 

general in nature and not uniquely suited to being in OPR. One source 

knowledgeable about LEEU stated that prior to 2001, most of OPR’s employees 

had not even personally met an LEEU instructor. 

 Also, LEEU’s access to OPR files and incorporation of case results into 

training curriculum is not dependant on the LEEU’s current status within 
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________________________

OPR, nor, in our view, does its effectiveness in ethics training depend on its 

affiliation with OPR. LEEU plays no role in investigating cases or deciding 

punishment, and does not offer any training unique to OPR personnel.58 

Accordingly, the Commission concludes that the OPR designation should be 

reserved for disciplinary matters only, and that OPR’s mission would be better 

defined if LEEU’s expertise emanated from the Training Division. 

 This restructuring should not be interpreted as minimizing LEEU’s 

importance. On the contrary, the Commission recommends expanding LEEU’s 

mandate consistent with the following observations. 

 LEEU’s curriculum may be more meaningful if supplemented with ethics 

modules that are incorporated into broader New Agent training classes. In 

addition to an independent philosophical program, certain academics 

recommend that ethics be incorporated as part of more practical courses such 

as those in the FBI’s existing Quantico curriculum. LEEU may elect to 

continue offering certain stand-alone training courses, but we question, based 

partially on a recent study of the impact of a semester-long criminal justice 

ethics course on students’ value orientation,59 whether such training alone can 

be effective. 

 We recommend that the FBI, as part of its ongoing review of education 

and training curriculum, consider whether the mission of LEEU is better 

accomplished through the integration of ethics in core training courses. Our 

recommendation should not be mistaken for a suggestion that ethics should be 

anything but a major FBI priority. Particularly in light of the questions that 

have been raised in the OPR context, the FBI must place a renewed focus on 

the paramount importance of ethics and integrity above all else. Therefore, we 

recommend that the FBI consider expanding the mission of LEEU to include 

developing an ethical training component for all core competency instruction 

for New Agent Candidates and support employees. 

 We also believe that OPR investigators and adjudicators should receive 

more routine, structured training -- both on ethics and on the rudiments of 

58 The LEEU is responsible for developing, implementing, coordinating, and managing the ethics and 

integrity initiatives for the entire FBI. These initiatives include providing instruction to New Agent 

Trainees, field Agents, FBI support employees, outside law enforcement officers enrolled in the 

National Academy, and other domestic and foreign law enforcement agencies. 

59 See Beth E, Bjerregaard & Vivian B. Lord, Ethics Courses: Their Impact on the Values and Ethical 

Decisions of Criminal Justice Students, 14:2 JOURNAL OF CRIMINAL JUSTICE EDUCATION at 191 (2003). 

Drawing lessons from the history of medical education, other observers have suggested that ethics 

modules are most successfully integrated into the existing medical curriculum. 
Page 67 of 67 

conducting OPR matters appropriately. Some interviewees suggested that 

OPR personnel only receive on-the-job, informal training on OPR rules and 

procedures, a troubling practice given the potential impact of the OPR process 

on a subject’s career. We recommend that all new OPR employees (including 

temporary AIIPs) receive such training before working on any OPR matters, 

and that existing OPR employees receive continuing education at least 

annually. 

 Because LEEU does not have the expertise to conduct OPR-specific 

training, an appropriate current or retired FBI employee with substantial OPR 

experience should be appointed to develop and implement this training 

protocol. The designee should be dedicated exclusively to this function, if 

necessary, with assistance from the Training Division. Given the Commission’s 

recommendation that OPR employees have term limits and rotate, the need for 

this training may become even more pronounced and require the authorization 

of an additional OPR position.