An SAC's Stolen Gun and the FBI's Double Standard for Discipline
My last assignment at the FBI included supervising investigations into government property stolen from federal law enforcement officers. Cases involved guns, badges, bullet proof vests, cell phones, and ballistic steel plates (those plates are expensive and have serial numbers). My squad carried cases from all the federal agencies, not just the FBI. Sometimes it seemed like the whole alphabet soup of agencies had guns out on the street. On a Sunday just before I retired we worked long hours trying to locate a stolen FBI gun and cell phone in downtown Miami. I got a tracking order for the cell phone. With the help of the real police, we tossed a couple homeless camps and engaged in what I later joked was a felony tent stop; where myself and a uniform, with guns drawn, ordered homeless folks out of a tent under an interstate bridge. Turned out the tent folk didn't have the gun or phone.
I never pushed for internal administrative inquiries of agents who were victims in these stolen property cases. It was usually hit or miss if the agent would be referred by their Field Division executive management to the FBI's Office of Professional Responsibility (OPR) for not properly safeguarding government property. But there was one ironclad exception: for stolen or lost guns. In gun cases, it was absolute. The agent will be investigated by OPR and suspended without pay for a minimum of five days. Period. A caveat written into the OPR regulations for stolen guns is: mitigating circumstances could not be considered. In other words, no excuses.
That's why I was intrigued when I learned that one of the highest ranking officials in the FBI had received no suspension whatsoever after having his FBI-issued handgun stolen. Brick agents who had taken extraordinary steps to secure their firearms were routinely suspended when their gun was stolen. Could this be another of the multitude of examples demonstrating preferential treatment for FBI executives? Having very little faith in being able to learn the truth from the FBI, but in an effort to try and glean the facts, I nonetheless dutifully filed a Freedom of Information Act (FOIA) request. I expected the standard response from the Bureau that we get to our FOIAs at the Underground : "kiss-off punks"! But to my surprise, I eventually received 45 pages from the offending SACs OPR file. (The Underground, free of charge, will email you a complete electronic set of the FOIA production if you request them through our Contact page). However, the FBI claimed that certain files could NOT be located. The Underground believes that the missing files are the crucial investigative files about this incident. What was produced by the FBI was a portion of the Administrative file.
At the time his handgun was stolen, the FBI executive was a Special Agent-in-Charge (SAC), but he was temporarily bouncing over to FBIHQ as an Acting Assistant Director. According to the documents, one morning at about five a.m. the SAC said he placed a canvas bag, which contained his FBI-issued handgun, on the back floorboard area of an FBI vehicle parked in the driveway of his personal residence. He left the bag in the unlocked FBI vehicle for what he claimed to be only 90 seconds while he retrieved other items from his residence. Upon returning to the car, he saw that the canvass bag had been moved to the front seat area and that the gun was gone. At some point, a theory was advanced that the SAC must have been targeted for this crime, that it could not possibly have been random. This theory conveniently ignored the fact that a neighbor's car was also burglarized that morning as well as the clear crime scene evidence that the thief took the time to open more than just the vehicle back door, open the bag, search it, toss out a Planner, move the bag to the front seat, etc. A retired employee with knowledge of the incident told us that when the "stalker" theory was first floated, many brick agents viewed it skeptically, seeing it as a way for executives to possibly minimize the SAC's responsibility. Many brick agents feared executive management was circling the wagons.
FBI executive management, apparently doubling down against the doubters, promoted the stalker theory by going to the extraordinary length of authorizing camera surveillance, just in case the "stalker" returned. This electronic surveillance is mentioned twice in the FOIA documents produced to the Underground. Certain camera installations that I was involved with at the FBI cost thousands of dollars per month to maintain. We don't know how much money was spent, or maybe wasted on stalker cam, because predictably the FBI's FOIA response includes a statement that numerous documents related to the Underground's request had been misplaced and could not be located at this time! Those investigative files seemed to be temporarily "missing" according to the FBI Records Division. The investigative file, which would have an FBI numerical coding of "52", was not provided to the Underground. That "52" file would contain information about what area a camera would view and information about its cost. We suspect this "52" file is the file that is "misplaced" for now. What was turned over to the Underground was 45 pages of the OPR file (to which the FBI assigns a numerical classification of "263").
A Damning Precedence Ignored
By written directive, since 2004, an employee guilty of violating FBI OPR Offense Code 3.4 (Loss of Weapon), receives a median suspension without pay for five calendar days. OPR's Penalty Offense Guidelines specifically state that a sanction under Offense Code 3.4 CANNOT BE MITIGATED. But astonishingly, the FOIA documents received by the Underground confirmed that this SAC received no suspension, only a written censure! How did that happen? How did OPR Assistant Director Candice Will, who line-level employees often describe to the Underground as being without mercy and brutal to brick agents in firing or meting out punishments to them, somehow find the heart to grant one of her fellow Senior Executive Service colleagues a pass on any suspension for his stolen gun violation? Especially after she was forced to compile the Precedence Analysis required to be taken into account by OPR officials to justify their actions against employees. That analysis was included in our FOIA production and discloses there were 14 guns stolen from FBI agents in the one-year period preceding the date of the SAC's gun being stolen and where each agent was found in violation of OPR Penalty Offense Code 3.4. Punishments imposed against other employees in the preceding one-year period is the benchmark in an OPR Precedence Analysis. All 14 other FBI guns stolen in that prior one-year period belonged to brick agents. The Precedence Analysis documented that every single one of those 14 brick agents was suspended by OPR for at least five days without pay (3 were suspended for seven days). Not a single one of those brick agents was credited by OPR with mitigating circumstances. In two of the Precedence cases, the brick agent's gun was stolen from their residence! In another case, a hard-working brick agent was helping execute a search warrant and decided not to use one of his guns during the entry. He locked the extra gun in the trunk of his FBI vehicle (as opposed to the unlocked passenger compartment of his vehicle as the SAC did). The search warrant brick agent had his car stolen from the search site while he was working executing the search. OPR imposed a five-day suspension without pay on him.
A Damning CFR Ignored
And it gets worse, much worse! Not only does the FBI Offense Penalty Code mandate a five-day suspension for the Loss of a Weapon, but the United States Congress placed a Code of Federal Regulation (CFR 752.601) in effect to hold federal Senior Executive Service employees committing infractions at any federal agency to a higher standard than line-level agency employees. That CFR plainly states that agencies cannot suspend their Senior Executives for less than 15 days. In other words, Congress sent a clear message with CFR 752.601. They wanted Senior Executives held to a higher standard. Under that CFR, a mandatory five-day suspension for violating FBI Offense Code 3.4 turns into a 15-day suspension for an SES employee. Instead, Candice Will the Assistant Director of FBI OPR, authorized only a written censure for the SAC. AD Will, in her Electronic Communication to the FBI Director justifying her generous downward departure for her colleague writes that the suspension mandated by the CFR is too harsh, and since her hands were tied by the CFR in imposing anything less than a fifteen-day suspension, she chose to issue a written censure for the SAC instead. Employees that the Underground discussed these FOIA documents with had the opinion that Will's reasoning was sickening and indefensible.
Docs seemingly Not Provided by FBIHQ to DOJ
Incredibly, at the same time that OPR's investigation of the SAC's stolen gun was ongoing at FBIHQ, personnel from the DOJ Inspector General's Office were crawling all over FBIHQ. The mission of those DOJ Inspectors? Conduct an audit of lost and stolen FBI guns! The FBI had been under fire from Congress and the media for losing a large number of guns and laptop computers. The SAC's gun was stolen on 09/13/2005. The IG Audit report states: "We performed the audit in accordance with Government Auditing Standards .... Our testing covered the period between February 1, 2002, and September 30, 2005". The IG Audit went on to state: "To examine the FBI’s efforts to identify lost and stolen weapons and laptop computers, we obtained a list of all such losses that occurred beginning February 1, 2002, and reviewed the available files and the circumstances surrounding those losses." However, the table published in the DOJ IG Report, which should have included the SAC's gun stolen on 09/13, curiously omitted details for all FBI guns that were stolen after August 25, 2005. According to the published IG Table, no data was given to the IG by the FBI for the final month of the IG audit scope period, that being September 2005. The Table in the IG audit report detailing information about all 160 guns stolen during the audit period reveals that the FBI apparently did not provide the DOJ Inspectors with the FD-500s (the Internal FBI form detailing the theft of a weapon and which contains the name of the agent responsible for the loss) for guns stolen after August 25. The Underground is sure that this omission was just a simple oversight by FBIHQ. FBIHQ would never have worried that the SAC's name would have been recognized by the Inspectors. And no one at FBIHQ would have possibly worried that another major media outcry would have erupted if it was reported that while the DOJ IG audit for stolen guns was underway at FBIHQ, another gun had been stolen from a high-ranking FBI official! Of course, no one at FBIHQ would worry either that a resulting media storm would have made it much harder to justify giving the SAC a minor written warning for his violation rather than having to suspend him without pay as the FBI had done to all prior 14 brick agents who had their gun stolen! No, the Underground is completely confident that when FBIHQ apparently did not provide the details about FBI guns stolen during September 2005 to the Inspector General it was just a simple, innocent, oversight.
In Your Face 60 Minutes
Here's another chilling circumstance to take into account. Not long before OPR cut the SAC a break for his stolen gun, the FBI's executive management had been the subject of a scathing, very public debacle for having a disciplinary double standard. FBIHQ was shown via nationwide media coverage to be imposing harsh punishment on brick agents while by contrast, promoting and providing bonuses to executive managers involved in the same incidents. That double standard was blatantly exploited by FBI senior executives and became the subject of not one, but two major segments on the CBS television show 60 Minutes. During one of the 60 Minutes segments, the Assistant Director of OPR at the time Robert Jordan is broadcast in one of those classic "perp running away" sequences as correspondent Ed Bradley chases him down a D.C. street. The two 60 Minutes segments and complaints by multiple U.S. Senators resulted in the DOJ IG conducting an audit of the FBI's culture of a disciplinary double standard that favors executives. The IG's published report stated:
"We believe that the evidence showed that in several FBI disciplinary matters, including several important and well-known cases, senior managers were afforded different and more favorable treatment than less senior employees."
The IG report concludes with:
"(the) FBI suffered and still suffers from a strong perception that a double standard exists within the FBI" and "the FBI should continue to be mindful of the damage that is done when employees believe that the disciplinary system is unequal or unfair."
Let's review, shall we? Fourteen brick agents in a row are suspended for a minimum of 5 days without pay as punishment for theft of their FBI weapon. When agent number 15 comes along, and is an SAC, he instead gets a written censure. One of the suspended brick agents was working a search warrant and the gun was locked in his trunk at the time of the theft. The SAC' s gun was left in an UNLOCKED vehicle, in a residential neighborhood where children can walk past, and it was before he was on duty. FBI regs mandate a suspension for loss of weapon and, in writing, state that mitigating circumstances are not allowed to be considered. The U.S. Congress mandated by regulation that a Senior Executive Service member, if subject to a suspension, must receive at least 15 days off. OPR instead considers mitigating circumstances for the SAC in this stolen gun case and opines that the FBI and U.S. Congress' regulations are too harsh, but just in this one particular instance. FBIHQ allows the ridiculous theory to be advanced that the SAC was stalked and allegedly approves expensive technical (camera) monitoring to bolster the stalker theory despite evidence that the theft was random. The FBI then misplaces the records regarding the cost of the monitoring, its effectiveness, the predication for the camera installation and the results of the investigation (was the stalker ever caught?). 60 Minutes recently had lambasted FBI executive management not once, but twice broadcasting embarrassing, humiliating segments about executive management that documented numerous blatant examples of a disciplinary double standard. A resulting audit by DOJ IG validates the 60 Minutes broadcasts, states that a double standard does exist and warns the FBI about the devasting impact to line level employees of continuing its application. FBI executives go ahead anyway and apply a double standard to the SAC for his stolen gun violation. OPR investigates the SAC's stolen gun at the exact same time that DOJ Inspectors are conducting an audit of guns stolen from the FBI. The Inspectors audit period included the date that the SAC's gun was stolen. Mysteriously, the FD-500s for thefts during the month that the SAC's gun was stolen were apparently not provided to DOJ Inspectors.
The evidence leads clearly to only one verdict. But the question is, will the FBI Director ever act to do something about it?
(Click on the CONTACT link at the left to request your copy of the FOIA documents the FBI produced to the Underground).