By the Federal Employment Lawyers at National Security Law Firm

Why Federal Employees Must Understand the Difference Between Criminal and Administrative Misconduct

Federal employees are often terrified when they receive a proposed suspension or removal letter filled with words like:

  • “fraud”

  • “theft”

  • “misuse”

  • “falsification”

  • “lying”

  • “unauthorized disclosure”

  • “inappropriate conduct”

Here’s the truth agencies don’t tell you:

Most federal misconduct allegations are administrative — not criminal.
And administrative misconduct has a completely different standard, risk level, and process than actual criminal behavior.

Agencies use criminal-sounding language because it scares employees into compliance.
But fear is the agency’s strategy — not the law.

This guide gives you the insider framework NSLF uses to protect federal employees nationwide and shut down exaggerated or mischarged allegations fast.

For more in-depth guidance, visit the
Federal Employment Defense Resource Hub.

What Is Administrative Misconduct?

Administrative misconduct is behavior that may violate agency policy, expectations, or performance standards — but does not involve criminal law.

Examples include:

Administrative misconduct is handled through:

  • HR

  • Security

  • ER/LR

  • Internal investigations

  • Proposals and decision letters

  • MSPB

  • OSC

  • EEO channels

Penalties include:

  • reprimands

  • suspensions

  • demotions

  • removals

Administrative misconduct is not criminal, even if the agency uses criminal-sounding terminology.

What Is Criminal Misconduct?

Criminal misconduct crosses into federal or state criminal law.
Examples include:

  • theft of government property

  • lying during criminal investigations

  • bribery

  • assault

  • threats of violence

  • falsifying official documents with criminal intent

  • unauthorized disclosure of classified information to foreign actors

  • procurement fraud

  • embezzlement

If something is truly criminal, it:

  • is investigated by law enforcement (OIG, FBI, NCIS, CID, etc.)

  • may use Garrity or Kalkines warnings

  • may involve criminal subpoenas

  • may result in indictment or arrest

Criminal misconduct is rare compared to administrative misconduct.

Most misconduct labeled as “fraud,” “lying,” or “misuse” is actually administrative.

NSLF’s job is to separate dramatic labels from reality.

Insider Insight: Agencies Routinely Mislabel Administrative Misconduct as “Criminal” to Scare You

It is extremely common to see a proposal letter claiming:

  • “fraudulent timesheet entries”

  • “theft of government time”

  • “falsification”

  • “misuse of government property”

But these terms are usually used:

  • loosely

  • inaccurately

  • without a criminal investigation

  • without legal basis

  • simply to justify harsher penalties

  • to intimidate the employee

Agencies want the word “fraud” to do the work they cannot do with evidence.

The Key Differences Between Criminal and Administrative Misconduct

Below is the battle-tested NSLF breakdown used in MSPB and federal defense cases.

1. The Standard of Proof Is Completely Different

Criminal Misconduct Administrative Misconduct
Beyond a reasonable doubt Preponderance of the evidence
Requires intent, motive, and knowledge Can be based on simple negligence
Requires criminal elements Agency only needs to meet civil policy-based standards
Investigated by law enforcement Investigated internally by the agency
Criminal conviction possible Only discipline/removal possible

Most administrative cases fall apart once this distinction is exposed.

2. Criminal Intent vs. Administrative Error

Criminal conduct requires intent.
Administrative conduct may be:

  • accidental

  • negligent

  • due to confusion

  • due to poor training

  • due to unclear rules

If intent is missing, 90% of agency misconduct charges collapse.

3. Investigative Tools Differ Dramatically

Criminal investigations use:

  • subpoenas

  • warrants

  • sworn statements

  • OIG agents

  • surveillance

Administrative investigations use:

  • HR inquiries

  • supervisor interviews

  • emails

  • performance documents

Most federal employees panic because they don’t know which process they’re in.

NSLF identifies it immediately and adjusts strategy accordingly.

4. Administrative Misconduct Can Often Be Mitigated Under Douglas

Even if some conduct occurred, the penalty must be justified under the
Douglas factors.

Douglas mitigation is one of the most powerful tools in federal employment law and applies ONLY to administrative misconduct.

We highlight:

  • no prior issues

  • years of excellent service

  • lack of intent

  • minimal harm

  • agency inconsistency

  • supervisor hostility

  • unclear rules

  • training failures

  • mental health or medical context

Douglas changes everything — and agencies know it.

How Agencies Mischarge Criminal Conduct as Administrative Misconduct (And Vice Versa)

Agencies often mischarge administrative mistakes as misconduct or near-criminal behavior to justify harsher penalties.

Examples:

NSLF forces agencies to call the conduct what it actually is — not what the agency wishes it were.

Why Misconduct Charges Are So Often Pretext for Retaliation

Administrative misconduct allegations frequently appear right after:

  • EEO complaints

  • whistleblower activity

  • telework disputes

  • reporting a supervisor

  • union involvement

  • requesting leave

  • requesting accommodations

  • challenging poor leadership

When misconduct appears timed, pretext is likely — and NSLF uses retaliation to dismantle the case.

Retaliation destroys credibility, and without credibility, the agency cannot sustain a removal.

When Criminal Conduct DOES Exist — How NSLF Protects You

If there truly is a criminal issue, you need a federal employment lawyer immediately.

Our defense strategy includes:

  • controlling communications

  • preventing self-incrimination

  • preventing administrative statements from being used against you

  • ensuring proper Kalkines or Garrity protections

  • separating administrative and criminal exposure

  • managing parallel investigations

  • coordinating with criminal defense counsel when necessary

Most cases never escalate to criminal matters — because agencies overblow them.

But when they do, NSLF knows how to protect you.

Why Federal Employees Choose NSLF for Misconduct Defense

Federal employees trust NSLF because we know:

  • the difference between criminal and administrative misconduct

  • how agencies misuse criminal wording

  • how to dismantle inflated charges

  • how to weaponize Douglas mitigation

  • how to expose improper investigations

  • how to identify retaliation

  • how to win MSPB appeals

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If your agency is accusing you of misconduct — criminal or administrative — get help before speaking to anyone.

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