[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




 
 ABUSE OF OVERTIME AT DHS: PADDING PAYCHECKS AND PENSIONS AT TAXPAYER 
                                EXPENSE

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON NATIONAL SECURITY

                                 of the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 20, 2013

                               __________

                           Serial No. 113-106

                               __________

Printed for the use of the Committee on Oversight and Government Reform


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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee       CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona               GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania         JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee          MATTHEW A. CARTWRIGHT, 
TREY GOWDY, South Carolina               Pennsylvania
BLAKE FARENTHOLD, Texas              TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington             ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming           DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia                 TONY CARDENAS, California
THOMAS MASSIE, Kentucky              STEVEN A. HORSFORD, Nevada
DOUG COLLINS, Georgia                MICHELLE LUJAN GRISHAM, New Mexico
MARK MEADOWS, North Carolina         Vacancy
KERRY L. BENTIVOLIO, Michigan
RON DeSANTIS, Florida

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                    Stephen Castor, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director

                   Subcommittee on National Security

                     JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida                JOHN F. TIERNEY, Massachusetts, 
JOHN J. DUNCAN, JR., Tennessee           Ranking Minority Member
JUSTIN AMASH, Michigan               CAROLYN B. MALONEY, New York
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
TREY GOWDY, South Carolina           JACKIE SPEIER, California
CYNTHIA M. LUMMIS, Wyoming           PETER WELCH, Vermont
ROB WOODALL, Georgia                 MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on November 20, 2013................................     1

                               WITNESSES

Mr. John Florence, Branch Chief, Use of Force Policy Division, 
  Field Operations Academy, U.S. Customs and Border Protection
    Oral Statement...............................................     7
    Written Statement............................................    10
The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of 
  Special Counsel
    Oral Statement...............................................    14
    Written Statement............................................    16
Ms. Catherine V. Emerson, Chief Human Capital Officer, U.S. 
  Department of Homeland Security
    Oral Statement...............................................    23
    Written Statement............................................    25
Mr. Ronald Vitiello, Deputy Chief, Office of Border Patrol, U.S. 
  Customs and Border Protection
    Oral Statement...............................................    29
Mr. Brandon Judd, President, National Border Patrol Council, 
  American Federation of Government Employees
    Oral Statement...............................................    30
    Written Statement............................................    33

                                APPENDIX

Opening Statement of Chairman Jason Chaffetz.....................    64
Opening Statement of Ranking Member John Tierney.................    66
Responses to questions from Brandon Judd, National Border Patrol 
  Council, from Rep. Maloney for the record......................    68
Border Patrol Union Calls Reformed Pay Structure for Agents in 
  Congressional Testimony........................................    84
Washington Post Article: Homeland Security workers routinely 
  boost pay with unearned overtime, report says, By Emily Wax-
  Thibodeaux, Published: Oct 31..................................    85


 ABUSE OF OVERTIME AT DHS: PADDING PAYCHECKS AND PENSIONS AT TAXPAYER 
                                EXPENSE

                              ----------                              


                      Wednesday, November 20, 2013

                  House of Representatives,
                 Subcommittee on National Security,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 10:05 a.m., in 
Room 2154, Rayburn House Office Building, Hon. Jason Chaffetz 
[chairman of the subcommittee] presiding.
    Present: Representatives Chaffetz, Lummis, Mica, Amash, 
Gowdy, Woodall, Bentivolio, Tierney, Maloney, Speier, Kelly, 
Welch, and Lujan Grisham.
    Staff Present: Ali Ahmad, Senior Communications Advisor; 
Will L. Boyington, Press Assistant; Molly Boyl, Deputy General 
Counsel and Parliamentarian; David Brewer, Senior Counsel; John 
Cuaderes, Deputy Staff Director; Linda Good, Chief Clerk; 
Jennifer Hemingway, Deputy Policy Director; Mark D. Marin, 
Deputy Staff Director for Oversight; James Robertson, Senior 
Professional Staff Member; Laura L. Rush, Deputy Chief Clerk; 
Sarah Vance, Assistant Clerk; Jeff Wease, Chief Information 
Officer; Sang H. Yi, Professional Staff Member; Jaron Bourke, 
Minority Director of Administration; Lena Chang, Minority 
Counsel; Devon Hill, Minority Research Assistant; Peter Kenny, 
Minority Counsel; Julia Krieger, Minority New Media Press 
Secretary; and Mark Stephenson, Minority Director of 
Legislation.
    Mr. Chaffetz. The committee will come to order. I would 
like to begin this hearing by stating the Oversight and 
Government Reform mission statement. We exist to secure two 
fundament principles. First, Americans have a right to know 
that the money Washington takes from them is well spent. And 
second, Americans deserve an efficient, effective government 
that works for them. Our duty on the Oversight and Government 
Reform Committee is to protect these rights.
    Our solemn responsibility is to hold government accountable 
to taxpayers because taxpayers have a right to know what they 
get from their government. We will work tirelessly in 
partnership with citizen watchdogs to deliver the facts to the 
American people and bring genuine reform to the Federal 
bureaucracy. This is the mission of the Oversight and 
Government Reform Committee.
    I appreciate everybody being here to today's hearing. We 
have four people who are here in person that are going to 
testify. I appreciate you being here. We do have one gentleman, 
Mr. John Florence, who is in southern Georgia, and by mutual 
agreement between the majority and the minority he will be 
giving his opening statement and testifying via video.
    We will do the questioning of Mr. Florence before we get to 
the questioning of the panel that's here in person in 
Washington, D.C. At the conclusion of his testimony we will 
question him, we will dismiss him, we will thank him for his 
participation, and then we will focus on the four people that 
are here today.
    There is a few seconds delay, and so some patience and 
understanding that he won't be able to hear us and we won't be 
able to hear his response for a few seconds given the 
technology, but I think this is the appropriate way to go and I 
appreciate the indulgence.
    First, I would like to give my statement and then we will 
allow the minority to give their statement.
    It has been brought to light that there are some serious 
challenges and problems with the use of overtime, often called 
Administratively Uncontrollable Overtime, or AUO. We are going 
to look today at the desk jockeys who milk the system and the 
public trust and steal from Americans by abusing the system. We 
are also going to try to give more consistency and look at 
those that are working hard on the border and doing the job 
that Americans deserve and need, and the good work that they 
do, and how we compensate them as well.
    Our hearing examines the recent Office of Special Council 
letter to the President which described the pervasive misuse of 
Administratively Uncontrollable Overtime, AUO, by employees at 
the Department of Homeland Security. Special Counsel Carolyn 
Lerner found abuse of this form of overtime paid to be, 
``profound and entrenched,'' problem at the Department of 
Homeland Security, characterizing the practice as, ``a gross 
waste of scares government funds.'' She will testify that this 
is not an isolated occurrence, but a persistent pattern of 
costing Americans what could be tens of millions of dollars 
every year, and this is just the Department of Homeland 
Security.
    By definition, Administratively Uncontrollable Overtime is 
a form of overtime pay used to compensate employees who occupy 
positions requiring substantial amounts of irregular 
unscheduled work. AUO ranges from sometimes 10 to 25 percent of 
a worker's base pay, and this compensation goes towards their 
pension. So not only if they were abusing it would they be 
stealing from the American people at the time that it occurred, 
but they will be compensated for years, if not decades into the 
future by continuing to reap the benefits of that as a 
calculation for their pension.
    Despite a 2008 investigation by the Office of Special 
Counsel and the subsequent promise of the Department of 
Homeland Security to stop the abuse, CBP failed to implement an 
agency-wide directive to better manage the overtime policy. 
Instead, employees were shown a video explaining the rules of 
the AUO. What is intolerable is the fact that this was 
highlighted as a problem in 2008. It was pointed out, almost 
the exact same thing, and yet it still continues today. In 
fact, it seems to have grown and spread.
    Allegations of abuse have come from across the Department, 
including at CBP's headquarters in Washington, D.C. The Office 
of Special Counsel's ongoing review of information disclosed by 
whistleblowers at just six of the Department of Homeland 
Security offices found nearly $9 million wasted annually. 
Again, this is just a snapshot of six offices. The Office of 
Special Counsel substantiated disclosures made by DHS employees 
that Special Counsel Lerner will elaborate on here today.
    Also, equally disturbing are the five additional 
whistleblower allegations described in the OSC's letter to the 
President, including the disclosure by one of today's 
witnesses, Mr. John Florence. We appreciate his participation 
and willingness to step up and do the brave thing.
    It is inexplicable that the Department of Homeland Security 
would allow its employees to regularly abuse the AUO. Despite 
claiming in its budget that CBP is, ``constantly reviewing the 
use of all overtime hours and conducting the operations and 
activities by all employees performed in the field and at the 
headquarters level.'' That is not true. That is not true. And 
we are going to explore why Homeland Security thinks that they 
can put out such a grandiose statement.
    The Department of Homeland Security's abuse of the public 
trust by routinely claiming AUO up to 2 hours a day every day, 
including the Department of Homeland Security headquarters and 
while on training assignments where no qualifying circumstances 
appear to exist. We are not talking in this instance 
necessarily about the people that are actually on the border, 
driving out from Yuma a couple hours to go to their station. 
That is not what we are talking about. We are talking about 
desk jockeys who are sitting at headquarters and at training 
facilities where it is fairly predictable what is going to 
happen. There is a difference. There is a difference and we are 
going to explore that.
    Was the Department of Homeland Security unable or unwilling 
to bring an end to the longstanding practice that pads the 
pockets and pensions of Homeland Security employees who watch 
sports and entertainment channels on a daily basis at taxpayer 
expense? Part of the answer to this question may stem from the 
fact that this behavior was endorsed by management in many 
cases, also practiced by management themselves.
    According to CBP's own data, in 2013 agents at Border 
Patrol headquarters claimed an average of 20 hours of overtime 
pay per period, one of the highest Administratively 
Uncontrollable Overtime of any CBP duty station. According to 
the Office of Special Counsel, ``The attached report confirms 
that Situation Room employees in Washington, D.C., claimed to 
have worked 2 hours of AUO following their assigned shifts 89 
percent of the time.'' Eighty-nine percent of the time people 
working there claimed overtime. Again, these were not the 
Border Patrol agents on the front line who are doing the tough, 
difficult thing.
    I want to read something here from the Office of Special 
Counsel in her report. This is page three, a letter from the 
Office of Special Counsel to the President of the United 
States. ``A whistleblower at the U.S. Citizenship and 
Immigration Service's headquarter facility in Washington, D.C., 
alleged abuses of AUO in 2010 while the whistleblower worked in 
the Office of Security and Integrity. The whistleblower alleged 
that everyone in OSI claimed 10 hours of AUO every week, even 
though no employee performed work that qualified. Not one. This 
whistleblower requested that her position be made ineligible 
for AUO and also advised supervisors that AUO was being 
routinely misused. The whistleblower was initially told she 
could not be decertified from AUO because it would draw 
unwanted attention to the office. While the whistleblower was 
eventually decertified, the AUO abuse by others has not 
stopped. DHS is required to submit a report in response to 
these allegations by November 13th.''
    I don't know who this whistleblower is, but she is the one 
that should probably should be running that Department and that 
agency and that group. God bless her for stepping up and 
drawing out and highlighting a problem. That is exactly the 
kind of person that should be running that. Again, we are 
talking about the Commissioner's Situation Room, which I am 
going to take is a fairly important position and an important 
place.
    Now, last week I introduced some bipartisan legislation, 
H.R. 3463, to address the abuse raised by the Office of Special 
Counsel. The bill will create a consistent, reliable pay 
system, enhance border security, and is anticipated to save the 
taxpayers more than $1 billion over 10 years according to the 
initial estimate. The new pay scale, along with a long-term 
solution, will iron out the kinks of the system through old-
fashioned planning and time management. These changes will both 
reduce the opportunities to abuse the system and provide 
compensation for unanticipated emergencies, such as actually 
capturing people who are illegally coming across our borders. I 
believe it is a logical solution. And I look forward to working 
with my colleagues, including the chairman of the Federal 
Workforce Subcommittee and original cosponsor, Blake 
Farenthold, to advance the bill. Again, we have done it in a 
bipartisan way. When we introduced it we had three Republicans 
and three Democrats.
    I want to thank the six whistleblowers for disclosing this 
gross waste to the Office of Special Counsel. I appreciate Mr. 
Florence for his willingness to share his story with the 
committee. Mr. Florence has faced a number of challenges facing 
his disclosure. And I will take the opportunity to remind 
Homeland Security that this committee in a very bipartisan way 
will not tolerate any sort of retaliation or retribution 
against Mr. Florence or any other whistleblower who is simply 
trying to make this government more effective and more 
responsible to the American people.
    And finally, and my conclusion here, I need to say we 
continue to be deeply disappointed for those of you working at 
Homeland Security who have failed to offer this committee your 
testimony prior to your being here today. I am sure you are 
both very nice people. We verbally called and said that we were 
going to have this hearing. We sent letters to your supervisors 
saying that we were going to have this hearing here today. We 
asked that that testimony be provided by 10 a.m. yesterday. We 
never received your testimony prior to your being here today.
    Now, I know you work through a process with the Office of 
Management and Budget. They know the drill. They also know 
there is no excuse--no excuse--for not providing testimony 
prior to coming before Congress. It allows us on both sides of 
the aisle to review that testimony and be properly prepared so 
we have a worthwhile hearing. This is a consistent drumbeat and 
pattern from Homeland Security, to jerk around the United 
States Congress. Please carry back the message with your 
legislative liaison this is not tolerable, and yet it continues 
and it persists.
    We will now recognize, if there is another member, we will 
recognize the gentlewoman for a very generous 5 minutes.
    Ms. Lujan Grisham. Mr. Chairman, thank you very much. I 
want to thank the panelists for being here. Of course, this is 
a committee whose job it is to improve the effectiveness of 
government and be clear about accountability in all facets.
    I am reading the opening statement of Representative John 
Tierney, who is the ranking member on the subcommittee.
    Thank you, Chairman Chaffetz, for holding this hearing to 
discuss concerns raised by a recent Office of Special Counsel 
report regarding the misuse of overtime payments, called 
Administratively Uncontrollable Overtime, by employees at the 
Department of Homeland Security.
    Regulation restricts the use of this type of overtime to a 
very limited set of circumstances, such as when a Border Patrol 
agent is investigating criminal activity. According to the 
report, however, over the last year seven whistleblowers have 
alleged routine misuse of AUO in separate DHS offices amounting 
to nearly $9 million per year. Now, I understand that two of 
these cases have now been substantiated by an agency 
investigation after referral from the Special Counsel, one 
other case was resolved through mediation, and the remaining 
four cases are pending agency investigation.
    In one of the substantiated cases the Department confirmed 
that numerous employees and managers in a Customs and Border 
Protection, a CBP headquarters unit called the Commissioner's 
Situation Room, regularly misused AUO by claiming 2 hours of 
AUO following their assigned shift nearly every day, and in the 
absence of a compelling law enforcement need. The Department 
also confirmed that the director and assistant director 
authorized and embedded this improper practice.
    Mr. Chairman, I could yield the rest of the opening 
statement time to the ranking member--all right, I will 
proceed.
    The whistleblower told investigators that instead of 
working, these employees routinely spent their AUO hours 
relaxing, surfing the Internet, watching television shows, or 
taking care of personal matters. Other whistleblowers, like Mr. 
John Florence, who will be testifying today via video 
conference, have alleged that AUO is routinely being used to 
improperly complete administrative tasks or to cover shift 
changes. It has also been alleged that some employers were not 
even present at their duty station during the claimed AUO 
period. I welcome Mr. Florence's testimony on this topic and 
appreciate his willingness to share his story with us.
    Special Counsel Lerner, who is here with us today, has 
expressed serious concerns that these cases and a prior 
disclosure in 2007 reveal longstanding abuse of overtime 
payments by the Department and strongly indicate that the 
Department of Homeland Security has a profound and entrenched 
problem. In her report, Special Counsel Lerner also questions 
the ability and willingness of DHS and CBP to address the AUO 
problem. And after revelations of routine abuses in 2008, CBP 
promised to issue and implement an agency-wide directive on 
AUO, and 5 years later such a directive has not yet been 
issued.
    These disclosures and the Department's slow progress in 
addressing the issue appear to point to a larger and more 
fundamental problem: that the misuse of this administrative 
overtime has become ingrained. The Special Counsel has noted 
that collecting AUO has become a culturally acceptable 
practice, and the National Border Patrol Council has stated 
that AUO long been promised, advertised, and used by every 
single agent who is a nonsupervisor.
    While misuse of the administrative overtime cannot be 
tolerated, I fully appreciate the importance of AUO for 
frontline agents and officers who are protecting our borders, 
and I want to make sure that this will be available for those 
DHS employees who really need it to carry out the agency's 
mission. I hope that DHS, CBP, and the National Border Patrol 
Council will be able to provide this subcommittee with insight 
into how AUO is being used, any challenges the Department and 
its components face under the current system, and how the 
problem is being addressed. I also look forward to hearing our 
witnesses' thoughts on whether AUO, which was created 40 years 
ago, can be fixed or whether it should be replaced by an 
alternative overtime pay system.
    Before I conclude my statement, I would like to ask my 
colleagues to not let their outrage over these whistleblower 
disclosures taint our view of Federal workers, the vast 
majority of whom are hard-working and dedicated civil servants 
who devote their lives to honorably serving and protecting the 
American people.
    Thank you, Mr. Chairman. And with that, I would yield the 
remainder of the time to the ranking member.
    Mr. Tierney. I yield back.
    Ms. Lujan Grisham. And Mr. Chairman.
    Mr. Chaffetz. Well, thank you.
    Mr. Chaffetz. And particularly that last comment, which I 
wholeheartedly agree on. I think this is an abuse that is being 
ferreted out. But you are right, the overwhelming majority of 
people at Homeland Security and other agencies, they do it 
right and they work hard and they are patriotic and they don't 
abuse the system. But there is widespread abuse here and we do 
need to ferret it out.
    So we are now going to recognize our panel. Mr. John 
Florence, who is joining us via video, serves as the Branch 
Chief at the Field Operations Academy for the U.S. Customs and 
Border Protection; Ms. Catherine Emerson is the Chief Human 
Capital Officer for the Department of Homeland Security; Mr. 
Ronald Vitiello is the Deputy Chief of the Office of Border 
Patrol within the Customs and Border Protection; Mr. Brandon 
Judd is the president of the National Border Patrol Council; 
and Ms. Lerner is the Special Counsel, Office of Special 
Counsel, and issued one of the reports to the President that we 
are here talking about today.
    We appreciate you, Ms. Lerner, being here as well.
    Pursuant to committee rules, all witnesses will be sworn in 
before they testify. If you would please rise and raise your 
right hand.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Let the record reflect that the witnesses answered in the 
affirmative.
    And you may be seated. I am going to go ahead and assume 
that Mr. Florence did the same, even though he is there 
remotely.
    In order to allow time for discussion, we would appreciate 
if you would limit your testimony to 5 minutes. We are going to 
start actually with Mr. Florence. And like I said, we will do 
his opening statement. We will then go to Ms. Lerner, we'll go 
down the line. And then we will question Mr. Florence. At the 
conclusion of our questioning him, then we will focus our 
questions to the remaining panel.
    Let's try with the technology here to start with Mr. 
Florence. You are now recognized for 5 minutes.

                       WITNESS STATEMENTS

                   STATEMENT OF JOHN FLORENCE

    [The following testimony was delivered via teleconference.]
    Mr. Florence. Chairman Chaffetz, Ranking Member Tierney, 
and members of the subcommittee, my name is John Florence. It 
is my honor to testify in front of this panel on the subject of 
Authorized Uncontrollable Overtime violations within Customs 
and Border Protection. I sincerely apologize I could not be 
there in person. However, because of my serious medical 
challenges, my physicians have advised me not to do so.
    While on my assignment as Acting Assistant Director at the 
Field Operations Academy, on August 20, 2012, I received a 
detailed email message, which was also sent to the Field 
Operations Academy Director, Kevin Strong, Deputy Director 
Michael Brown, and Assistant Director Select Kevin Levan. This 
email identified serious concerns about AUO violations by 
employees and senior level managers at the FOA. The allegations 
were AUO was being scheduled on a regular and reoccurring basis 
for work that was not uncontrollable and was primarily 
administrative and managerial in nature.
    AUO employee shifts were being manipulated from normal 
academy business hours of 0730-1630 to 7 o'clock to 3 o'clock 
and then claiming AUO nearly every day from 3 o'clock to 5 
o'clock. Lunch breaks were not being taken, to maximize AUO 
earnings during normal business hours. AUO was being claimed 
for work that should have been completed during normal business 
hours. And also of note but not identified in this email was 
AUO earners would receive approximately 20 hours of AUO per pay 
period or 25 percent of their base annual salaries.
    I scheduled several meetings on this matter with Deputy 
Director Brown and sent several comprehensive email messages 
voicing my concerns. Unfortunately, it became apparent that the 
AUO violations were not receiving due diligence and would 
continue to be authorized by former Director Strong because he 
was also significantly benefiting from the AUO pay. This was 
even after former Director Strong and Director Brown received 
comprehensive AUO guidance on August 14, 2012, from other 
senior level Border Patrol managers.
    On September 4, 2012, I filed a Joint Intake Center 
investigation for a comprehensive review by Customs and Border 
Protection headquarters investigative components because of my 
concerns about mismanagement by senior level managers locally. 
Additionally, on September 11, 2012, I sent Deputy Director 
Brown an email message regarding my concerns about continuing 
authorization of AUO pay when it was clearly in violation of 
the policy, and based on these facts I no longer felt 
comfortable approving it.
    After I advised Deputy Director Brown that I filed a Joint 
Intake Center investigation on the AUO violations, former 
Director Strong ordered that all AUO concerns and approvals 
would go through him directly until Assistant Director Kevin 
Levan reported for duty. Assistant Director Levan was also an 
AUO earner.
    After almost 1 year had passed and I had not received a 
response or any indication that anything was being done to stop 
the AUO violations that were being observed at the Field 
Operations Academy and was prevalent throughout the rest of the 
Office of Training and Development and headquarters 
assignments, with the exception of the headquarters sending out 
an AUO training mandate on August 27, 2012, for all supervisors 
and managers to complete. However, this effort was ineffective 
because after this requirement was satisfied, the AUO 
violations continued. This reminded me of the action that was 
taken by the agency in 2007 on the Lynden, Washington, Office 
of Special Counsel case DI-08-0663 on AUO violations.
    After applying due diligence to stop the AUO violations 
within my chain of command and through the agency's 
investigative branches with no success, it became apparent that 
I needed to file outside the agency as a whistleblower with the 
Office of Special Counsel.
    Also of concern was the disparaging pay practices which was 
causing low morale because many employees were working in the 
same work areas and in identical positions, however the Border 
Patrol 1896 employees were receiving up to an additional 25 
percent of their base pay, which to my understanding was also 
being utilized to calculate their retirement annuities. Many of 
the 1895 employees and managers that were not receiving any 
additional pay had serious concerns about equal pay for equal 
work. This was because they were also working 10 to 12 hour 
days and were being required to be on call but were not 
receiving any additional compensation.
    I would like to close by saying that this experience has 
been the hardest decision in my 27-year Federal law enforcement 
career concerning reporting the AUO violations and including 
the former director and Deputy Director Brown in my testimony 
because they have been friends, colleagues, and mentors of mine 
for the last 15 years.
    It goes without saying to do the right thing sometimes 
comes with a tremendous price is an understatement. Reporting 
the AUO violations has taken its toll on my career, personal 
life, and health. Because of my mental anguish, stress, and 
retaliatory treatment I have received since reporting the AUO 
violations to my superiors, and due to the medications I was 
taking after a serious back surgery on February 10, 2013, I 
almost lost my life.
    I had a serious--excuse me--I had a serious medical 
incident which caused me to be in an intensive care unit for 4 
days. I'm sorry for losing my bearings. My chances for survival 
were very low and I was in a fight for my life. Today I stand 
before you with my life irrevocably damaged, being permanently 
disabled and unsure of my future with the agency.
    Committee members, I have asked myself this question a 
number of times: Would I do it again? Would I report these 
blatant AUO violations if I knew what I know now? The answer is 
yes, because it was my duty to do so, it was the right thing to 
do, it was a violation of one of CBP's core values, which is 
integrity, and it was a serious fraud, waste and abuse of 
taxpayer's dollars. Thank you very much.
    Mr. Chaffetz. Mr. Florence, we thank you. We thank you very 
much. I appreciate that. It is very heartfelt and we appreciate 
it. It is very helpful.
    [Prepared statement of Mr. Florence follows:]

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    Mr. Chaffetz. Let us go through the testimony of the other 
four and then we will come back to you for questions.
    I now recognize Ms. Lerner for 5 minutes.

                 STATEMENT OF CAROLYN N. LERNER

    Ms. Lerner. Chairman Chaffetz, Ranking Member Tierney and 
members of the committee, thank you for inviting me to testify 
today about overtime abuse disclosed by whistleblowers at the 
Department of Homeland Security. I would like to introduce the 
two attorneys from our agency who had primary responsibility 
for the report, Lynn Alexander and Johanna Oliver, and they did 
a terrific job. They are attorneys in our Disclosure Unit.
    My statement to today will focus on three areas: the role 
of the Office of Special Counsel in whistleblower matters 
generally; the procedures followed in this matter; and finally, 
our findings and areas of concern.
    I want to start by briefly explaining our role in 
disclosure matters. As an independent agency within the 
executive branch, the OSE provides a safe channel for Federal 
employees to disclose government wrongdoing. We evaluate 
disclosures using a ``substantial likelihood'' standard. If the 
standard is met, I send the matter to the head of the agency, 
who in turn is required to conduct an investigation and submit 
a written report of investigative findings to my office.
    After reviewing the agency's report, I make two 
determinations: first, whether the report contains the 
information required by statute; and, second, whether the 
findings of the agency appear reasonable. In addition, the 
whistleblower may review and comment on the agency report. My 
office then transmits the report with findings and 
recommendations to the President and congressional committees 
with oversight responsibility. In this case, my findings and 
recommendations are attached to my submitted testimony.
    It was within this statutory framework that we received 
disclosures from seven whistleblowers from six separate offices 
of the Department of Homeland Security over the past 2 years. 
In September 2012, Jose Ducos-Bello contacted OSE about 
overtime in the U.S. Customs and Border Protection 
Commissioners' Situation Room in Washington, D.C. Mr. Ducos-
Bello alleged that employees there regularly abused 
Administratively Uncontrollable Overtime, AUO. The director and 
assistant director were authorizing this improper use and it 
was the norm for employees to extend their shifts by two hours 
every day, increasing pay 25 percent.
    By regulation, this type of overtime may only be used when 
an employee's hours cannot be scheduled in advance due to a 
substantial amount of irregular and unpredictable work or a 
compelling law enforcement reason. For example, AUO is 
appropriate when an employee is apprehending a suspected 
criminal and it would constitute negligence for the employee to 
leave the job unfinished. However, the employees in Mr. Ducos-
Bello's disclosure were not using AUO as the result of any 
unpredictable or compelling law enforcement need. According to 
Mr. Ducos-Bello, many employees spent the extra time relaxing 
or surfing the Internet.
    The abuse was not an isolated occurrence. Over the past 
year we received disclosures from six more whistleblowers at 
five other DHS offices. These allegations are outlined in more 
detail in my October 31, 2013, letter to the President.
    The estimated cost of abuse at these six facilities alone 
is almost $9 million each year. The whistleblowers estimate 
that the cost nationwide is likely to reach tens of millions of 
dollars annually. This estimate excludes overtime claims by 
agents in the field, those whose need for AUO would seem to be 
most justified.
    In April 2013 we received DHS' report on Mr. Ducos-Bello's 
allegations and the report substantiated his claims. As to the 
other five investigations, DHS' reports to my agency are due 
within the next several weeks and months. We will keep the 
subcommittee informed.
    I credit the Customs and Border Patrol for conducting a 
thorough investigation into the whistleblowers' allegations. 
However, while CBP has pledged to take corrective action, I 
remain concerned about whether the agency is ultimately willing 
or able to do so.
    In 2007 identical concerns about overtime abuse were 
raised. DHS confirmed the allegations and the agency made 
similar promises about correcting them. At that time CBP 
outlined a corrective plan, much of which is mirrored in its 
response to the current round of allegations. In addition, in 
its current report DHS describes obstacles to correcting these 
problems, including collective bargaining agreements and the 
need for updated regulations from the Office of Personnel 
Management.
    While I am very hopeful that the Department will overcome 
these obstacles and take definitive action to correct this 
overtime abuse, I am also realistic. Based both on the 
magnitude of the problem and the prior history of ineffective 
measures taken, it will require a serious commitment the to 
make necessary change. I am pleased that Congress and this 
committee have shown an interest in helping the Department find 
ways to solve this problem.
    In conclusion, I want to applaud Mr. Florence, Mr. Ducos-
Bello, and the other courageous whistleblowers who spoke out 
about this important issue, often against their own financial 
self-interest. Had they not stepped forward, these problems 
would not have come to light and the taxpayers would continue 
to foot the bill for these improper payments.
    Thank you very much. I will be pleased to answer any 
questions that the committee may have.
    Mr. Chaffetz. Thank you.
    [Prepared statement of Ms. Lerner follows:]

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    Mr. Chaffetz. Ms. Emerson, you are now recognized.

               STATEMENT OF CATHERINE V. EMERSON

    Ms. Emerson. Chairman Chaffetz, Ranking Member Tierney, 
distinguished members of the subcommittee, thank you for the 
opportunity to appear before you today to address the 
Department's use of Administratively Uncontrollable Overtime, 
AUO.
    I serve as the first career Chief Human Capital Officer of 
the Department of Homeland Security and am responsible for the 
Department's Human Capital Program, which includes workforce 
planning, policies, and technology in support of the DHS 
mission.
    Today I am here to discuss AUO, a matter that has been of 
concern to the Department for some time. Properly paying our 
border and Homeland Security personnel and properly managing 
that pay system are essential to the Department's mission. AUO 
was established by Congress in 1966 and is a payment mechanism 
that allows the compensation of certain employees for 
irregular, unscheduled, but necessary overtime. AUO is 
determined as a percentage, not less than 10 percent nor more 
than 25 percent of an employee's rate of basic pay fixed by law 
or administrative action for the position held by the employee.
    Mr. Chairman, we appreciate your taking the initiative to 
introduce new legislation to attempt to address the challenges 
posed by AUO and welcome the opportunity to work with you on 
finding solutions at an affordable cost. As you know, the 
Department has sought legislative changes for several years 
that would enable CBP to reform and rationalize its 
compensation structure. The Department has been working to 
institute pay reform, including AUO, since 2009.
    The President's fiscal year 2011 budget request submitted 
in April of 2010 would have fully funded that increase. That 
plan also required statutory changes in a comprehensive pay 
reform legislative proposal submitted as part of the 
President's fiscal year 2012 budget request and formally 
submitted to Congress in September 2011.
    Unfortunately, Congress did not take action on the 
proposal. The Department again restated the proposal in the 
President's fiscal year 2013 budget request to provide fair 
payment for all of CBP's overtime-eligible law enforcement 
officers and agents.
    The Department takes its responsibility to be good stewards 
of taxpayer dollars very seriously. Any misuse of government 
funds will not be tolerated. At the request of the Special 
Counsel, on October 31, 2013, Acting Secretary Beers ordered an 
expeditious and comprehensive Department-wide review of our 
compliance with rules governing the use of AUO. The Office of 
General Counsel is conducting the compliance review and 
examining both current practices relating to designating 
positions as eligible for AUO pay and the compliance with all 
applicable rules and laws in recording and paying for AUO. The 
Office of the Chief Human Capital Officer, CBP, and all other 
relevant components of DHS are working closely with OGC on the 
compliance review and will be integral in implementing any 
decisions that result from OGC's findings and recommendations 
to the Secretary.
    In conclusion, the Department and CBP are committed to 
finding solutions to modernize and streamline compensation 
structures, to align them with evolving missions, and to 
reflect the expanded responsibilities of our workforce, and we 
look forward to working with Congress to achieve these goals.
    Thank you for allowing me the opportunity to testify before 
you today, and I look forward to answering any of your 
questions.
    [Prepared statement of Ms. Emerson follows:]

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    Mr. Chaffetz. Mr. Vitiello, you are now recognized for 5 
minutes.

                  STATEMENT OF RONALD VITIELLO

    Mr. Vitiello. Chairman Chaffetz, Ranking Member Tierney, 
members of the subcommittee, thank you for the opportunity to 
appear before you today to address the recent allegations 
against U.S. Customs and Border Protection and specifically the 
U.S. Border Patrol.
    When CBP was established in 2003 in the wake of the 
terrorist attacks on September 11, 2001, it was tasked with 
merging personnel, equipment, policies, procedures, and systems 
from four agencies within three departments, Treasury, 
Agriculture, and Justice. Today, the uniformed men and women of 
CBP make up the largest law enforcement organization in the 
Nation and take a solemn vow to secure the homeland from 
terrorists and other threats.
    While much of CBP's critical efforts are performed at 
official ports of entry and at the land and maritime borders in 
between, advancements in technology are increasingly enabling 
aspects of frontline law enforcement activities.
    The responsibilities of a Border Patrol agent are arguably 
the most unpredictable of all CBP's law enforcement positions. 
While the function of the Border Patrol has changed and 
expanded dramatically since its inception 89 years ago, its 
primary mission remains unchanged. The Border Patrol protects 
our Nation by reducing the likelihood that dangerous people and 
capabilities enter the United States between the ports of 
entry.
    This effort is accomplished by maintaining surveillance, 
following up leads, responding to electronic sensor alarms and 
aircraft sightings and interpreting and following tracks. We 
also maintain traffic checkpoints along the highways leading 
from border areas, conduct city patrols and transportation 
checks, and support the antismuggling investigations. Agents 
regularly work in isolated and harsh terrain. Agents patrol the 
border on foot, in vehicles, boats, and in some areas patrol on 
horses, all-terrain vehicles, bikes, and snowmobiles.
    The Border Patrol's frontline border security efforts are 
increasingly augmented by advancements in technology, including 
enhanced sensor, video, and radar technology. This technology, 
affixed to assets such as unmanned aircraft systems, increases 
the Border Patrol's capabilities in the land, air, and maritime 
domains between the ports of entry. The vast amounts of 
information gathered from this technology requires review and 
analysis and rapid interpretation into actionable information 
for use by agents on the ground.
    The work of the Border Patrol agent is by its very nature 
dynamic and unpredictable. In the course of any given day, 
agents are continually presented with new conditions and new 
situations. This type of work requires agents both patrolling 
on the ground and processing intelligence at remote locations 
to follow leads and go where the activity takes them, even if 
it takes them beyond their standard duty hours.
    When it comes to paying Border Patrol agents for work 
beyond regularly scheduled hours, the Department and CBP are 
committed to working with Congress to modernize and streamline 
our compensation structure to reflect the expanded 
responsibilities of the workforce.
    Administratively Uncontrollable Overtime, a system 
established almost 50 years ago, no longer meets the needs of a 
21st century law enforcement environment where increasing 
amounts of surveillance, intelligence, and Border Patrol 
activities are often conducted in remote areas. The work of 
securing the border is no longer limited to physical presence 
on the border and our compensation system should reflect the 
current operational environment.
    The U.S. Border Patrol takes its responsibility to be a 
good steward of taxpayer dollars. Any misuse of government 
funds is not tolerated. The U.S. Border Patrol will cooperate 
fully with all internal DHS and external reviews of our 
compensation and procedures.
    Prior to the issuance of the Special Counsel's report, CBP 
initiated an internal working group on Administratively 
Uncontrollable Overtime to review current practices and update 
internal policies, where applicable, to reflect the roles and 
responsibilities of the positions earning AUO.
    The Border Patrol also regularly issues official guidance 
on all AUO to chief patrol agents in the field, most recently 
in December of last year. This guidance contains the 
regulations and policies governing the administration of AUO, 
criteria that agents must meet and be authorized to be deemed 
eligible for payments for legitimately claiming AUO, and the 
responsibilities required of employees, supervisors, and 
managers.
    While the Department and CBP have taken steps to educate 
supervisors and employees about the proper application of AUO, 
we continue working to educate and train our staff on the 
proper use and align pay structures with current agency 
functions.
    The Border Patrol's mission requires compensation 
structures, maintain flexibility and ensure continuous 
coverage. We would welcome a legislative solution that meets 
the agency's critical mission, promotes efficiency, and has the 
least impact to our Border Patrol agent personnel.
    Thank you for allowing me the opportunity to testify today, 
and I look forward to your questions.
    Mr. Chaffetz. Thank you.
    Mr. Judd, you are now recognized for 5 minutes.

                   STATEMENT OF BRANDON JUDD

    Mr. Judd. Chairman Chaffetz and Ranking Member Tierney, on 
behalf of the 16,500 Border Patrol agents who are members of 
the National Border Patrol Council, I would like to thank you 
for having this hearing to explore reforming the 
Administratively Uncontrollable Overtime system.
    I am the president of the Border Patrol Council and I have 
been a Border Patrol agent for 16 years. I am currently 
assigned in Maine, but I have worked the majority of my career 
in some of the busiest Border Patrol sectors, including El 
Centro, California, and Tucson, Arizona.
    The Special Counsel's latest report simply confirms what 
line agents have been saying for years: AUO is outdated and a 
broken system that needs wholesale reform.
    When AUO was first instituted in the 1970s there were fewer 
than 4,000 Border Patrol agents. There was no border fence, 
remote sensing technology, or even an interoperable 
communications system. Most agents worked alone or in small 
groups with little or no supervision.
    AUO made sense 40 years ago because if an agent was 
tracking smugglers or illegal aliens, after the shift was over 
the agent could simply keep working. Those extra hours worked 
were covered under AUO. When I entered on duty with the United 
States Border Patrol in 1997, there were still mom-and-pop 
smuggling organizations who peddled their product across our 
borders.
    Fast forward to where we are today in 2013. Gone are the 
mom-and-pop smuggling organizations, replaced by multinational 
cartels that smuggle both drugs and illegal aliens into our 
country. These cartels are well organized, well funded, heavily 
armed, extremely violent, and have an extensive intelligence 
and surveillance network. With each tunnel coming into the 
United States that is discovered by law enforcement, the 
American public is made aware of just how well funded and 
organized these cartels are.
    In response to cartel threats and the increase in both 
human and drug smuggling, Congress set a Border Patrol staffing 
floor at approximately 21,300 agents, seven times its initial 
size. This level of staffing not only ensured more agents in 
the field, but also ensured that Border Patrol would be a 24-
hour-a-day operation on all of our borders.
    In order to maximize manpower in the field, the Border 
Patrol utilizes a three-shift rotation with each shift lasting 
8 hours. The challenge is how to handle shift changes because 
it is common for an agent's patrol area to be over an hour away 
from the Border Patrol station. Therefore, an agent's shift may 
be done, but the oncoming relief is still an hour away. After a 
handover is made with an oncoming agent, the off-going agent 
still has to drive an hour back to the Border Patrol station to 
turn in all equipment. So while a shift may be 8 hours, the 
agent has to work an extra 2 hours per day to ensure border 
integrity. These hours are and have always been covered under 
AUO, which we know through the Office of Special Counsel is 
illegal.
    For the most part, when discussions on border security 
arise, the conversation tends to focus on the southwest border. 
In no way do I want to detract from the importance of securing 
the southwest border, but I would be remiss if I didn't mention 
the ongoing threat of the nearly unguarded northern border to 
the safety of the American public. As far as I am aware, all 
recent threat assessments have pointed to the northern border 
as the most likely point of entry into our country for 
terrorists.
    I also need to remind the committee of our recent history. 
In the early to mid-1990s, San Diego and El Paso were ground 
zero for both illegal immigration and drug smuggling. In 
response, the Border Patrol threw all of its resources at those 
two areas without also strengthening other areas of the border. 
The thought process was that no one would attempt to cross 
through the inhospitable deserts of Arizona.
    We now have a similar thought process in that we don't 
believe illegal smuggling, whether it be drugs or aliens, will 
ever move to our northern border because it is cost 
prohibitive. Like Arizona, the northern border is ripe for the 
exploitation of not only alien and drug trafficking, but also 
for facilitating the illegal entrance of terrorists and those 
that would do this country harm. If we selectively limit 
manpower to current locations with high volumes of illegal 
crossings, all we really achieve is shifting the point of 
illegal entry to a different location.
    The real question is where do we go from here. Last week, 
Chairman, you introduced legislation, H.R. 3463. In addition, 
Senators Tester and McCain introduced a companion bill in the 
Senate. The legislation would reform Border Patrol agent pay 
for the first time in almost 40 years.
    On this point I want to be clear: Border Patrol agents 
completely support this legislation. The primary reason agents 
support this legislation is that it guarantees manpower we need 
in the field to accomplish our mission.
    I learned early in my career that manpower and agent safety 
are linked. It was true when I started 16 years ago. It is even 
more true today. With the domination and spread of 
sophisticated drug cartels on the border, having this 
legislation in place is the equivalent of hiring 5,000 new 
Border Patrol agents, which increases border security as well 
as agent safety.
    Finally, I would like to address the cost savings that 
would be achieved by the legislation. This legislation will 
save taxpayers over $1 billion over the next 10 years. Moving 
to this new system will be a pay cut from what Border Patrol 
agents have traditionally earned. However, we believe ensuring 
proper manpower stability and safety is worth a pay reduction.
    Chairman, I look forward to any and all questions that you 
might have.
    Mr. Chaffetz. Thank you.
    [Prepared statement of Brandon Judd follows:]

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    Mr. Chaffetz.
    We are going to now direct our questions to Mr. Florence. I 
would ask members here on the panel to direct their questions 
just to Mr. Florence. We will go through those questions. At 
the conclusion, then we will focus on the four here in 
Washington, D.C. I will now recognize myself for 5 minutes.
    And, Mr. Florence, I hope you can hear me. And I appreciate 
your testimony. Could you please tell me what you saw? What 
were these people doing day in and day out? You mentioned 
generally that they were surfing the Internet, doing those 
types of things, but what specifically did you see them doing?
    Mr. Florence. Well, I didn't see them doing specific 
things. I did not mention anything about them surfing the 
Internet. That was Mr. Ducos out of the Situation Room.
    The individuals that were under my supervision worked in 
the Marine Branch, and according to their 203s, which were 
their AUO forms, they were preparing for lessons for the next 
day, working on lesson plans, other things like that, that were 
primarily controllable and administrative in nature.
    Normally here at the academy the instructors will work 
anywhere from 4 to 6 hours a day and they will have at least 2 
hours of a break to do the things that they were putting down 
that they were doing on their AUO. Sometimes they would even 
have 4 hours a day to prepare for their lessons the next day 
and to prepare for their classes and lesson plans, et cetera. 
So it didn't make any sense to me as far as prudent management 
why these employees were filing the AUO they were when they had 
plenty of time during their shifts to accomplish their work.
    Mr. Chaffetz. I now yield to the gentlewoman from Wyoming, 
Mrs. Lummis.
    Mrs. Lummis. Thank you, Mr. Chairman.
    Mr. Florence, thank you for your testimony. I understand 
that you began your law enforcement career as a law enforcement 
specialist at F.E. Warren Air Force Base in Cheyenne, which is 
where I am from. So I am very pleased that you were willing to 
testify today.
    I want to focus on the kind of response that you received 
when you notified your colleagues about the allegations of 
overtime abuse. Mr. Florence, could you comment on that?
    Mr. Florence. When I sent Deputy Director Brown my email, 
which I mentioned, which was on the 11th of September, he 
actually wanted to speak with me in person. He responded back 
by saying they were very serious allegations, et cetera, which 
I appreciate that and I can understand that. But he asked me to 
come into his office the next day. And then he sat me down and 
he said that my allegations were very serious, that I was 
questioning the director's integrity, and did I think that he 
would jeopardize his career for AUO? And then he told me you 
can go ahead and file your Joint Intake Center report but I 
feel it is a real waste of government money and a waste of 
government time.
    Mrs. Lummis. Now, based on your experience working at CBP, 
what do you think contributes to this problem, an atmosphere or 
a culture where overtime is abused? Is it a lack of training or 
is it just a sort of a herd mentality to think that this is 
somehow fair? Or the fact that, gee, we feel like we are 
underpaid and until Congress addresses that we will find a way 
to make sure that we are adequately paid, whether it is legal 
or not. What is it about this culture that makes this so hard 
to eradicate?
    Mr. Florence. Well, I think some of the Border Patrol 
agents feel that it is an entitlement, it is part of their pay 
package. When I received the three employees that were Border 
Patrol agents under my chain of command, I quickly started to 
study what AUO was all about because I was unfamiliar with it. 
I don't claim myself as a subject matter expert on AUO in any 
way, shape or form, but I know when someone should be working 
overtime and when they shouldn't, and in a training environment 
obviously most of it, 99 percent of it is controlled, so in any 
opinion it wasn't necessary.
    So I think it is basically the mentality. It is an 
entitlement, it is an AUO-certified position, so therefore we 
can have AUO. That is what I was told by the director on 
numerous occasions. But in doing some research on my own on the 
Lynden, Washington, case, and then doing the mandatory training 
that was sent out and then doing my own research, I quickly 
found it was easy to understand that this was in violation of 
the policy. And I explained that to them numerous times to try 
to get this taken care of within my chain of command.
    Mrs. Lummis. Mr. Florence, one more question. We had 
testimony from Mr. Judd that it can be a 2-hour commute, 1 hour 
each way, for a shift that is far away from the area where you 
must turn in your weapons and stuff before the end of a shift. 
Is that the typical situation where you would allege that 
overtime is abused or is that an appropriate use of overtime?
    Mr. Florence. Well, at the academy, as I said before, 
everything is controlled. They don't have to commute anywhere 
near that time. They are normally in their work area so they 
are able to report on time and there is normally no commutes.
    Now, in the marine environment where these three employees 
worked, I understood that there could be situations where they 
got stuck out at sea because of weather or they had a 
mechanical issue with their vessels, et cetera, and I accepted 
that. I told them in those kind of situations, AUO should be 
authorized. It is uncontrollable. But in most situations in the 
academy environment everything is controllable and scheduled in 
advance.
    Mrs. Lummis. Thank you for your testimony, Mr. Florence.
    Mr. Chairman, I yield back.
    Mr. Chaffetz. Thank you.
    We'll now recognize the ranking member, Mr. Tierney of 
Massachusetts, for 5 minutes.
    Mr. Tierney. Thank you.
    Thank you, Mr. Florence, for making yourself available to 
testify here today, and accept at least my regrets for what you 
have gone through physically and emotionally as a result of 
trying to do your job the proper way and know that we respect 
it and appreciate it and feel very badly for the situation that 
you are in today healthwise.
    I want to make this as short as I can, my questions. I was 
curious to know what kind of retaliation and confronted your 
subordinate, and you heard about that and you testified about 
that. So let me just quickly ask you, who specifically did you 
directly report to when you first made the determination that 
this was being done improperly?
    Mr. Florence. I directly reported to the deputy director, 
Michael Brown, which in turn he reported to the director, Kevin 
Strong, who was also an AUO earner. Michael Brown was not an 
AUO earner.
    Mr. Tierney. And did the deputy director have a direct 
response to you, directing you to either change the situation 
that you found or advising you to just leave it alone?
    Mr. Florence. He advised me that it was an AUO-certified 
position, that I didn't know what I was talking about, I didn't 
know the AUO system, and that, like I said before, the director 
was not going to jeopardize his career over AUO and it is a 
very serious concern of his that I am even bringing this up.
    Mr. Tierney. Did you have any indication of how it was he 
thought he was going to be jeopardizing his career by dealing 
with this issue?
    Mr. Florence. I am not really sure about that. I think what 
he was alluding to is that the director wouldn't collect the 
AUO unless it was authorized and it was within policy.
    Mr. Tierney. Okay. All right.
    I have no further questions. If my colleague has any 
questions I'll yield.
    Mrs. Kelly. No, I have no questions.
    Mr. Tierney. We yield back, Mr. Chairman.
    Thank you, Mr. Florence.
    Mr. Chaffetz. Mr. Florence, we thank you for your time, 
your commitment, your dedication to your country, your service. 
It is my understanding there are no other questions from this 
panel of members. We thank you again for your bravery, for your 
willingness to step forward and do what is right, and I hope 
you sleep better because of it. And I am heartened that people 
like you are in those positions, and I appreciate the 
responsible nature. I appreciate you preparing for this 
testimony. Testifying before Congress is not an easy thing. And 
God bless you. I wish you nothing but the best. We thank you 
for your time. You are welcome to listen.
    This committee will now direct its questions to the four 
panel members that are here in Washington, D.C., and I will 
start by recognizing myself for 5 minutes.
    Ms. Lerner, on January 2 of this year you sent a letter to 
Secretary Napolitano. On page 3 you said, ``I have concluded 
that there is a substantial likelihood that the information 
provided by the whistleblower to OSC discloses a violation of 
law, rule, or regulation, gross mismanagement, an abuse of 
authority, and gross waste of funds.''
    You stand by that statement, correct?
    Ms. Lerner. I do.
    Mr. Chaffetz. Your microphone, please.
    Ms. Lerner. I do.
    Mr. Chaffetz. Ms. Emerson, is she right or is she wrong?
    Ms. Emerson. We are currently in the process----
    Mr. Chaffetz. Wait. Currently in the process? This is a 
letter that was sent on January 2nd. It is now November 20. Is 
she right or wrong?
    Ms. Emerson. That is currently under review by the Office 
of General Counsel.
    Mr. Chaffetz. How long does it take you to review this?
    Ms. Emerson. From what I understand, it is going to take 
several months.
    Mr. Chaffetz. Well, it has been--we are in month 11. How 
many more months do you think it is going to take?
    Ms. Emerson. I will have to get back to you with that. But 
from my understanding it will take several months. I know----
    Mr. Chaffetz. What is your role?
    Ms. Emerson. I am the Chief Human Capital Officer.
    Mr. Chaffetz. The Chief Human Capital. You are in charge. 
Who do you report to?
    Ms. Emerson. I report to the Under Secretary for 
Management.
    Mr. Chaffetz. What is his name or her name?
    Ms. Emerson. Presently there is an acting. That would be 
Chris Cummiskey.
    Mr. Chaffetz. How long have you been in this role?
    Ms. Emerson. I have been the DHS CHCO since August of 2011.
    Mr. Chaffetz. When did you first become aware of this 
problem?
    Ms. Emerson. My office first became aware of it somewhere 
in 2009, the former CHCO.
    Mr. Chaffetz. So you knew it was a problem in 2009.
    Ms. Emerson. The office worked on----
    Mr. Chaffetz. When did you personally, Ms. Emerson, when 
did you become aware of it?
    Ms. Emerson. I personally became aware of it, it came to my 
attention in late April and----
    Mr. Chaffetz. Of this year.
    Ms. Emerson. Yes.
    Mr. Chaffetz. Do you think anybody has been dishonest?
    Ms. Emerson. That is under review right now, but OGC----
    Mr. Chaffetz. What is the question here? We have the Office 
of Special Counsel who has reviewed this and come up with a 
definitive report on this. What do you need to do that Ms. 
Lerner hasn't done?
    Ms. Emerson. What I understand is that Ms. Lerner had some 
very serious concerns regarding the administration of AUO at 
DHS. That report or letter was sent to the Office of General 
Counsel, and they are working with the component. They are also 
working with my office, the Office of the CHCO, in reaching out 
to the component experts to look into the matter.
    Mr. Chaffetz. Has anybody been fired?
    Ms. Emerson. Regarding this? I am not knowledgeable on that 
at this point.
    Mr. Chaffetz. You are the chief human capital person. You 
can't point to a single person who has been fired, let go. What 
are you going to do to claw back the dollars?
    Ms. Emerson. That is under review with the Office of 
General Counsel.
    Mr. Chaffetz. What are you here to talk about then? 
Everything is under review. Who is reviewing it? Who should 
have been here to represent the Department? Are you the chief 
or are you the----
    Ms. Emerson. I am the Chief Human Capital Officer and I 
have oversight throughout DHS for human capital programs. I am 
involved presently with the review being done by OGC to look at 
AUO administration----
    Mr. Chaffetz. What about the specific allegations?
    Ms. Emerson. Those are all being reviewed currently.
    Mr. Chaffetz. When are you going to come to a conclusion?
    Ms. Emerson. In the next several months.
    Mr. Chaffetz. No, no, no, give me a date. What is the date?
    Ms. Emerson. I will have to get back to you on the date. I 
have been informed that it will be----
    Mr. Chaffetz. Do you think anything that has been done has 
been dishonest?
    Ms. Emerson. As I said, I have to look into the facts. I 
know that they are being reviewed right now.
    Mr. Chaffetz. This started in 2008. It was brought up again 
in 2009. A letter went to the Secretary on January 2nd of this 
year. And you are still reviewing it?
    Ms. Emerson. As I said, it is under review by the Office of 
General Counsel, and it is a case-by-case, component-by-
component review of AUO usage throughout----
    Mr. Chaffetz. You can't point to any case where we are 
clawing these dollars back?
    Ms. Emerson. I know that there has been work in that area.
    Mr. Chaffetz. You said in your testimony, the testimony 
that you never gave us in advance--we have trouble getting it 
right now. You said, ``At the request of special counsel, on 
October 31, Acting Secretary Beers ordered an expeditious and 
comprehensive department-wide review of our compliance and 
rules for the governing use of AUO.'' October 31st? You started 
a few days ago? She sent a letter to the Secretary on January 
22nd, saying there is a substantial likelihood that the 
information provided by the whistleblower discloses a violation 
of law, rule, regulation, gross mismanagement, abuse of 
authority, and a gross waste of funds, and you didn't start a 
review until October 31st?
    Ms. Emerson. That review is the component-by-component 
department-wide review. That information was handled by OGC and 
forwarded to the Customs and Border Patrol, and they were 
working on that--those specific instances were specific to CBP.
    Mr. Chaffetz. I can tell exactly why this continues to be a 
problem. There are tens of millions of dollars, taxpayer 
dollars, that are being abused. They are being stolen from the 
American people. And you are doing nothing about it. You have 
known about this since 2008. It was highlighted in January. And 
yet, nothing has been done. Don't tell me that there are months 
that we have got to continue to review this. There are people 
that need to be fired. There are dollars that need to be clawed 
back. There are people that may be headed to a violation of law 
that should be going to jail. So I hope we get the right person 
from Homeland Security to come here.
    This committee will hold another hearing with the right 
person, who is actually going to testify to Congress. But don't 
tell me that you need more dollars, more resources. You heard 
Nancy Pelosi saying, we are at bone bare--you know, the 
cupboard is bare. There is nothing to give. There are too many 
thousands of people who are working hard, doing the right 
thing, and guess what? They are getting screwed by the 
Department of Homeland Security, because those people are 
stealing from the American people.
    You take that back to Homeland Security and let them know, 
they are going to deal with Congress. They are going to be 
candid about this. They are going to hold people responsible, 
and they are going to be candid in making sure that they are 
responsible with the American taxpayer dollars. Your answers, 
quite frankly--you are a very nice person--but your answers, 
quite frankly, they are not acceptable. For you to be the chief 
human capital person and you have no answers to any questions, 
saying everything is under review because, well, it is not in 
my department; it is with the General Counsel. It is 
inexcusable.
    I now recognize the gentleman from Massachusetts, Mr. 
Tierney for 5 minutes.
    Mr. Tierney. Thank you.
    I am going to cede to Ms. Kelly, who was here in my delay 
in being here, so please. Thank you.
    Mr. Chaffetz. Ms. Kelly.
    Ms. Kelly. Thank you, Mr. Chair and Ranking Member Tierney.
    Mr. Judd, your colleague, Shawn Moran, the vice president 
of the National Border Patrol Council, was quoted in a recent 
Washington Post article as stating that AUO has long been 
promised, advertised and used by every single agent who is a 
nonsupervisor.
    Panel members, do you agree with that statement, that 
collecting AUO has become a promise that employees and new 
hires have come to expect?
    Mr. Judd. Thank you for your question. Actually, when you 
apply for a job--and they have since removed this in the 
application--but when I applied for the job, it was actually a 
part of the compensation package that you were told that you 
would earn. It said that you would earn a substantial amount of 
irregular overtime in the form of administrative uncontrolled 
overtime. So, yes, all Border Patrol agents, prior to--I 
believe that it was removed from the job announcement about a 
year ago, but prior to a year ago, yes, all Border Patrol 
agents were told that this was part of your compensation 
package.
    Ms. Kelly. Is it true that it has been used as an actual 
recruitment incentive?
    Mr. Judd. It has. It absolutely has.
    Ms. Kelly. And I think it was said that a person could earn 
up to 25 percent of their salary for AUO?
    Mr. Judd. That is correct.
    Ms. Kelly. That is a very strong recruitment incentive.
    Mr. Judd. It is.
    Ms. Kelly. Panel members, do you agree that it would be a 
challenge to implement any fix to the AUO system that would 
reduce or eliminate the AUO premium that employees have been 
earning?
    Mr. Vitiello. I think the findings in the investigation and 
the work that we have done has shown that this has been a very 
difficult challenge. That is why we look forward to working 
with the committee and others to get us into a space where we 
can put these kind of things behind us.
    Ms. Kelly. Anyone else? Okay, panel members, if we 
eliminate AUO for all employees not working on the front lines 
protecting the border, would it be difficult to retain and 
recruit employees to work at headquarters or at the 
department's training facility? And how would we recruit and 
retain these folks if you think it would be a hard time?
    Mr. Judd. Congresswoman Kelly, if you remove the overtime 
system that we currently have, you wouldn't be able to retain 
employees. That is one of the biggest incentives that we have 
to do the job we do. We live in environments, if you go out to 
Sanderson, Presidio, Texas, Ajo, Arizona, we live in 
environments that just aren't where the normal United States 
citizens would choose to live. This--what we have noticed is 
that, yes, AUO by law, Ms. Lerner has pointed it out, by law, 
AUO is not being used correctly. However, we do have a fix for 
that which would actually save the taxpayer dollars and would 
increase border security.
    Ms. Kelly. Do you feel the starting salary or however your 
salary progresses is so low that it is hard to recruit people, 
just----
    Mr. Judd. No, our salary--when I began 16 years ago our 
salary was extremely low compared to other police departments, 
major police departments. However, our salary is now on par 
with those police departments, but every police department in 
the United States has an overtime system which they use. And 
just like those overtime systems, we also need an overtime 
system. But we need an overtime system that would be cost-
effective to taxpayers, increase border security, and include 
incentives to retain our employees.
    Ms. Kelly. Okay. Any other comments?
    I yield back the remainder of any time.
    Mr. Chaffetz. Thank you.
    I will now recognize the gentlewoman from Wyoming, Ms. 
Lummis, for 5 minutes.
    Mrs. Lummis. Thank you, Mr. Chairman.
    Ms. Emerson, you have some--a marvelous mastery of 
bureaucratese, but let me tell you what I heard when you were 
giving your testimony. I want to paraphrase what I thought I 
heard you say. You said, Unless Congress does what DHS wants 
with regard to giving us money, that we are going to keep 
cheating the taxpayers to get it unless Congress will give us 
more money. That is what I heard you say. Am I correct?
    Ms. Emerson. AUO has been a challenge for the department 
over the last years, as we have seen and is pointed out in 
testimony here today and with the Office of Special Counsel. 
And over the years, there have been----
    Mrs. Lummis. No, no, no. Okay, and this is something that 
somebody has taught you how to do when you are testifying in 
front of Congress, which is stray, obfuscate, use 
bureaucratese, so let me--let me just ask you a question again. 
When you testified, were you saying that unless Congress gives 
us more money, we are going to cheat the system? That is what I 
thought I heard you say. But did I hear wrong? Yes or no? Did I 
hear wrong?
    Yes or no. Did I hear it wrong?
    Ms. Emerson. There is--yes.
    Mrs. Lummis. Okay, what did you mean to say? What did you 
mean to say?
    Ms. Emerson. That AUO has been a challenge over the years.
    Mrs. Lummis. Oh, now, come on. What did you mean to say 
when you said Congress isn't giving us the amount of money the 
President requested, and so the AUO challenge will continue 
until Congress gives us more money. That is what I heard you 
say.
    Ms. Emerson. It is not in regards to the money. It is in 
regards to the legislation that has been proposed over the 
years, and I appreciate the current draft legislation that has 
been introduced. It is certainly an attempt to look at our AUO 
situation, and to----
    Mrs. Lummis. Okay, so the--so until Congress passes 
legislation that will reform the AUO, you will continue to 
cheat the system? Is that what I am hearing?
    Ms. Emerson. No.
    Mrs. Lummis. Okay.
    Ms. Emerson. And also----
    Mrs. Lummis. Okay, what am I hearing?
    Ms. Emerson. The allegations, the report from the OSC is 
currently under review by OGC.
    Mrs. Lummis. Okay, thanks.
    Ms. Lerner, obviously, the--I am going to have to go and 
ask you these questions because I can't get a non-bureaucratese 
answer out of the department. So is that what you're hearing 
from the department, that there will be no reforms until 
Congress changes the law?
    Ms. Lerner. No, I can't say that's a message that we have 
gotten.
    Mrs. Lummis. What is the message you are getting?
    Ms. Lerner. For the most part, I mean, the only report we 
have gotten back now is on the Ducos-Bello matter, and that 
report from Internal Affairs confirmed the allegations and said 
that they would take steps to solve the problem. Now, my 
concern with that report is, it was in many ways cut and pasted 
from the same report that they gave us 5 years ago.
    Mrs. Lummis. Uh-huh.
    Ms. Lerner. And the obstacles that they cite to being able 
to implement reform, you know, I can't really speak to those. 
They say that they have collective bargaining agreements, and 
OPM----
    Mrs. Lummis. Let's explore that one. Yeah, let's explore 
the collective bargaining agreement.
    Ms. Lerner. I'm not really sure that I can add much to that 
because I'm not--I'm not familiar with those obstacles that 
they have cited.
    Mrs. Lummis. If we wanted to explore whether somehow the 
taxpayers are being cheated because of a collective bargaining 
agreement that is negotiated between the government and the 
union on behalf of its members, then we have got a problem.
    Ms. Lerner. Well, I mean, let me--let me add something to 
this conversation, which is that there are probably a very wide 
variety of overtime uses here that we are talking about. Some 
of them may, in fact, be fraudulent. Right. There may be people 
who are claiming overtime when they are actually not working.
    Mrs. Lummis. Right.
    Ms. Lerner. Or not even on the job or surfing the Internet. 
There may be folks who are actually working over time in a 
legitimate way.
    Mrs. Lummis. Right.
    Ms. Lerner. And it's really, really hard to know the extent 
of the over time. What I can tell you is that at least in three 
of the cases that we have, they are at, you know, headquarter's 
positions, where there shouldn't be a need to be taking this 
particular type of overtime, where people are doing training, 
where they are primarily desk jobs. Doesn't mean that folks 
aren't using AUO in an appropriate way in other places. But it 
is a systemic problem, and it needs to be looked at department 
wide. And so I take, you know, some solace in the fact that 
they are doing this review, that they do seem serious. I think 
that Congress' interest is going to help spur, you know, a 
remedy.
    Mrs. Lummis. Thank you. Thank you.
    Ms. Lerner. And that may make a difference this time.
    Mrs. Lummis. And thank you all. I know that this is hard. I 
appreciate it.
    Thanks, Mr. Chairman. I yield back.
    Mr. Chaffetz. I thank the gentlewoman.
    I will now recognize the gentleman from Massachusetts, the 
ranking member, Mr. Tierney, for 5 minutes.
    Mr. Tierney. Look, some of this just needs plain English 
and direct talk on that. But Ms. Emerson and Mr. Vitiello, I 
notice that we didn't get your testimony before this hearing, 
which is totally unhelpful. So I won't make you name your 
legislative liaison with Congress now and embarrass them unduly 
because I know it is not all your fault, but I think you might 
take this back to the department or whatever. Next time, there 
will be a joint effort to make sure that there are some 
repercussions for people not cooperating. It is just indicative 
of how late it has been to respond to these issues since 
January, all the way through. But you should know that if we 
ask for something, we are going to have a hearing, it is a 
courtesy to you to give you advanced notice. You owe us the 
courtesy back to give us the advanced testimony so that we can 
properly prepare.
    Mr. Judd when did you first go to work for the agency?
    Mr. Judd. September of 1997.
    Mr. Tierney. So, in 1997, you were basically induced into 
your situation by knowing that you are going to get your base 
pay, plus up to 25 percent on that, because that was part of 
the package that they told you about when you were employed. Is 
that correct?
    Mr. Judd. That is correct.
    Mr. Tierney. All right, so we have had this problem now 
through three administrations, so it is not political. This is 
a systemic problem, and this has been ongoing.
    And if the agents are perceived to not being paid enough 
for a salary or whatever, why has it never been a case somebody 
comes to Congress in the appropriations process and just says, 
in order to recruit people, we have got to pay them X amount of 
dollars more than we are paying now or we will have a serious 
recruitment problem? Anybody want to tackle that one?
    Mr. Vitiello. I would like to be a little precise, as it 
relates to recruitment and job announcements, the idea that the 
work is unpredictable and that it will exceed regular shift 
hours has to be advertised so that we are truthful and we are 
attracting people who recognize this.
    Mr. Tierney. I am going to just have a colloquy with you. I 
hope you don't take it as interrupting. But yes, I understand 
that, but this is representation that people are saying was 
made, not that you are going to have irregular hours, but 
basically, you can count on 25 percent extra pay. And you know, 
that is just not the best way to do business. I think you can 
agree on that.
    Mr. Vitiello. I agree. I think we need to be more precise, 
but the object of those words in the recruitment announcements 
is to put folks on notice that the work is irregular.
    Mr. Tierney. And the result has been that everybody has 
been led to believe that it is automatic and that there is 
their pay, plus 25 percent more.
    Mr. Vitiello. Well, the fine----
    Mr. Tierney. If I am going to work for that agency, because 
I am really not going to get paid the base that they are 
talking about; I am going to get paid 25 percent more than 
that. That is what we have to attack.
    I appreciate Mr. Chaffetz' legislation. We are going to 
review it thoroughly, but I am hoping we are not legalizing an 
already bad situation and that if there is an adjustment that 
has to be made in compensation in order to make sure that we 
get the recruitment we need, that is how we ought to address 
it. Is that statute at 3463 the best way, or is there some 
other way that we ought to be doing it? But we are going to 
have to have some directness and honesty in advertising here in 
bringing people on board so that we have an expectation when 
budgets are being done as to what we are going to meet in that 
obligation.
    Ms. Emerson, you--I appreciate that they send you out here 
as a sacrificial lamb and put you in a difficult position. We 
really would like to get somebody who is responsible for that 
department, if there is anybody that is willing to accept 
responsibility. But the real problem seems to be, when given 
specific instances of abuse, the agency sets off on a broad-
scope investigation of the process, which is fine. Ms. Lerner 
says it is well overdue. But who is dealing with the specific 
investigations into those incidents that were reported and the 
retaliation that occurred? Is there a bifurcation of those 
investigations?
    Ms. Emerson. It is my understanding that those allegations 
are being--well, I know they are being looked at through the 
Office of General Counsel in the department-wide review, but 
they are also being handled because they are component specific 
by CBP.
    Mr. Tierney. Okay, would you have the department provide to 
this committee the exact status on each aspect of those 
investigations, the component ones and the individuals involved 
and the broad--we want it right where it is. We are not going 
to wait months if we can help it. We would like to know, to 
this day, where is that investigation? What have you found so 
far? What is left to be done on that investigation, by whom? 
All right, and who is the ultimate responsible person to 
bringing this home to a final date, and that would be very 
helpful. Will you do that, please?
    Ms. Emerson. Okay.
    Mr. Tierney. Okay, is there anybody, Mr. Vitiello, Ms. 
Emerson, is there anybody in the department responsible for 
reviewing the general way that we pay people, you know, other 
than this wide review of AUO, to come to Congress with a 
recommendation that perhaps we ought to have an entirely new 
payment system for people so that, you know, we get away from 
things that are ambiguous, like the AUO, all of those things, 
and get to a payment system where people can expect how it is 
they are going to get paid and know how that is going to go? Is 
anybody doing that kind of review?
    Mr. Vitiello. So, I think the work that we did post the 
2008 findings led us to try to structure, train, and do better 
with the layers of management that review this time and how it 
is claimed, but we have also recognized that CBP, that a 
legislative fix was in order, that we wanted to structurally 
reform the system to give us the flexibility to change the 
compensation system to meet the mission in a better way.
    Mr. Tierney. Well, I think we have to look at, A, one 
alternative is how you might restructure AUO; two, whether you 
have to replace it with something else; and three, how is it 
being used in the recruitment of people? What is specifically 
being said by inference or directly?
    And if I can ask one further question, Mr. Chairman, have 
your indulgence on that.
    Mr. Judd, these individuals against whom the complaints 
were originally alleged, the people that were at the academy, 
for instance, that really aren't out in the field and don't 
have that problem of, you know, traveling back and forth 
whatever, what is your organization doing with respect to those 
individuals?
    Mr. Judd. Those individuals are management officials. 
Therefore, I have no contact with them.
    Mr. Tierney. They are not part of your group?
    Mr. Judd. No, they are not.
    Mr. Tierney. Okay. Thank you very much.
    I yield back.
    Mr. Chaffetz. Thank you.
    I now recognize the gentleman from Florida, Mr. Mica, 5 
minutes.
    Mr. Mica. I hate to say it, it is kind of like ObamaCare, 
but sort of the same with DHS: I told you so.
    I gave a speech in this committee when we created the 
Department of Homeland Security, and I said, whoever thinks 
that bringing 22 agencies together and over 200,000 people 
would be more efficiently operated is dreaming. Most of you--
Ms. Emerson, do we still have over 200,000 in DHS?
    Ms. Emerson. Yes, from what I understand, we have 
approximately 230,000 employees at DHS. And as you said, it is 
the third largest Federal agency.
    Mr. Mica. And they have got 66,000 in TSA; probably close 
to 60,000 Coast Guard. How many in Customs and Border Patrol 
now?
    Mr. Vitiello. Approximately 65,000.
    Mr. Mica. 65,000, okay. For the most part, you guys do a 
pretty good job. I commend you. Some tough assignments.
    But it is tough to manage that many people. Do you do a 
pretty thorough job, you think, of reviewing the qualifications 
of folks before you hire them, Ms. Emerson?
    Ms. Emerson. At DHS as a whole?
    Mr. Mica. Yeah, well----
    Ms. Emerson. I would say each----
    Mr. Mica. H-O-L-E, but W-H-O-L-E, go ahead.
    Ms. Emerson. As a whole, yes, I would say so. Each 
component has their own HR operation, organization.
    Mr. Mica. Okay. So Customs and Border Patrol, the 65,000, 
they would review those folks. I ask that because I am not 
sure, some of these people are properly vetted. But you would 
make a decision, for example, if people are put on 
administrative leave for some violation, whether they continued 
to get paid. Would you make that decision?
    Ms. Emerson. That would be handled by the component.
    Mr. Mica. Okay. Well, what troubles me is--and the subject 
of this hearing is, again, some abuses in overtime and some 
other payments--I am concerned that DHS still hasn't fired--I 
have got a headline here--a black supremacist who called for 
mass murder of whites. There is an employee who was a Customs--
let's see, his title was immigration and customs enforcement 
officer. Are you familiar with this case at all? It is a 
gentleman by the name of Kimathi?
    Mr. Vitiello or Ms. Emerson?
    Mr. Vitiello. Not specifically. I have seen the media 
accounts of it as well.
    Mr. Mica. Well, I am wondering if you had the authority--I 
mean, this guy--when you get a report of some misconduct or a 
question, how long does it take to move forward and 
investigating it?
    Mr. Vitiello. So we take all of the allegations of 
misconduct seriously.
    Mr. Mica. Especially in enforcement, right?
    Mr. Vitiello. Correct. Correct.
    Mr. Mica. I am told that there were complaints as of 2011, 
since 2011. In fact, one of his supervisors says everybody in 
the office is afraid of him, and he wasn't suspended until 
August of this year. You are not aware of that case?
    Mr. Vitiello. I have no direct knowledge of that.
    Mr. Mica. Would you let us know about that? Is that 
customary to take 2 years before someone is suspended? Some of 
the things that he did here. On his Web site, he said, ``In 
order for black people to survive in the 21st century, we are 
going to have to kill a lot of whites.'' He said that ``whites 
and their enablers''--this is from his Web site--``like 
President Obama are trying homosexualize black men in order to 
make them weaker.''
    He went on with other hate things against Zionists and 
others. This is an enforcement officer of, again, your agency.
    Mr. Vitiello. No, it is not--that is not a CBP employee.
    Mr. Mica. It isn't?
    Mr. Vitiello. It is not.
    Mr. Mica. Homeland Security then?
    Ms. Emerson. That employee works for ICE.
    Mr. Mica. Under DHS. Are you aware of it?
    Ms. Emerson. Yes, sir, I am aware.
    Mr. Mica. Now, do you have the tools-- now this guy--what 
is frosting people is this guy is still getting paid. He is 
still--he is getting a salary. His salary is $115,731. Do you 
have the authority to suspend pay? Does it take 2 years when 
employees report misconduct or this kind of activity to put 
someone on administrative leave?
    Can you answer, Ms. Emerson?
    Ms. Emerson. From my understanding, and I have also seen 
some reference of it in the media, that case is being handled 
by ICE, their HR shop, and also their Office of General 
Counsel.
    Mr. Mica. But that is under you. Can you report--my time is 
about up. Can you report back to the committee? Again, I don't 
have to get--I know you don't want to get specific with the 
personnel issue with an individual, but I want to know if you 
have the--why it took so long, again, from August, 2 years ago 
in 2011, to September, I guess it was, or August, 2 years, and 
then when they are put on administrative leave and you have got 
this kind of record, and that particular position, why someone 
cannot be terminated, their pay. And if you don't have the 
authority, what it would take that we could do to hold these 
people responsible. That is an important position, and DHS is 
an important role.
    Again, I get these complaints from my constituents in the 
media report, and the public is outraged, so I would appreciate 
your responding to us.
    I yield back.
    Mr. Chaffetz. I thank the gentleman.
    I now recognize the gentlewoman from California, Ms. 
Speier, for 5 minutes.
    Ms. Speier. Mr. Chairman, thank you.
    You know, this is very reminiscent of a hearing that I 
chaired when I was in the State Senate in California, when the 
correctional guards were playing a similar game, which was one 
in which they would call in sick one day, and a friend would 
work overtime. And then the following week, the friend would 
call in sick, and the colleague would work overtime. This is 
outrageous.
    And Ms. Lerner, you pointed in your comments that this is 
not just an isolated incident, that, in fact, there are--there 
have been seven whistleblowers at six facilities within the 
department that have complained specifically about AUO, is that 
correct?
    Ms. Lerner. That's right. We don't know how big a problem 
this is, but----
    Ms. Speier. Well, I can tell you right now, it is big. If 
you have already heard from six offices, I can guarantee you 
that it is a wink and a nod, and it is something that is going 
on throughout the department. And it has got to stop. Now, you 
mentioned in your comments that you are unclear about whether 
or not the agency is ultimately willing or able to make the 
corrective actions. Can you explain that to us, why you think 
they are unwilling?
    Ms. Lerner. Well, the track record, you know, the 5-year 
long notice that they have had. This is not a new issue that 
has come to their attention for the first time. I think the 
difference this time, though, may be having congressional 
interest.
    Ms. Speier. Right, sometimes that always----
    Ms. Lerner. And so I really want to thank this committee 
for its interest in this important issue.
    Ms. Speier. So my concern are the whistleblowers who come 
forward, who then go through physical, health deterioration, 
because they had the guts to come forward and, as Mr. Florence 
exhibited today, had a very difficult time even reading his 
comments. So I think it is imperative, and I say this to all of 
you representing the department, this has got to be fixed. 
Human beings who come forward and make points like this that 
show that there is abuse need to be heard and the issue needs 
to be resolved.
    And if. in fact, it is not going to be resolved internally, 
then Congress will take steps. So my first question to those of 
you within the department is, we all recognize the AUO has got 
to be fixed. The question is, whether or not you can do it 
internally, or do we need congressional action to do it?
    So I guess to Ms. Emerson, and Mr. Vitiello, do you have 
any thoughts on the legislation that has been introduced by 
Chairman Chaffetz, and whether or not it is workable, or 
whether or not you could support it?
    Mr. Vitiello. We look forward to working with yourself and 
others on the committee and the chairman to give a full 
analysis that would be--that would look at all of the aspects 
of it and can comment more fully in support.
    Ms. Speier. Well, have you looked at the bill?
    Mr. Vitiello. I have seen it.
    Ms. Speier. And what do you think of it?
    Mr. Vitiello. I think it allows for the--an ability to meet 
the mission much like we can now, the flexibility to assign and 
then availability to flex beyond the scheduled shift, yes.
    Ms. Speier. Mr. Vitiello, were you aware of the abuse of 
AUO before it was brought to the attention of the department by 
the whistleblower?
    Mr. Vitiello. This has actually been a challenge for CBP 
and the Border Patrol for quite some time.
    Ms. Speier. Okay, so you knew about it but didn't fix it.
    Mr. Vitiello. Well, I would like to separate what is termed 
as ``abuse.'' Misconduct by employees, people who are claiming 
hours that they don't work or doing things at work that are 
inconsistent with the mission, is recognized as misconduct and 
is referred to authorities for investigation and a follow up. 
We do that on a regular basis.
    Ms. Speier. Yeah, but that is different because this is a 
ruse that is created, correct?
    Mr. Vitiello. We have looked at AUO structurally, and we 
have tried to improve training. We have tried to improve 
awareness. We have issued guidance to the field and to our 
offices to better manage it and monitor it. We have taken steps 
in fact this year to reduce the amount of the costs in it. But 
yet we still are challenged and the findings suggest that we 
still have a lot more work to do.
    Ms. Speier. Ms. Emerson, let's presume that the bill passes 
and gets signed into law. What do you think the effect will be 
within the department?
    Ms. Emerson. Well, currently within the department, we are 
reviewing that to look at it to make sure that it is physically 
sound so that, you know, it is not costing additional sums. We 
wouldn't have to increase----
    Ms. Speier. How can it cost additional sums if you are 
going to restrict the amount of AUO?
    Ms. Emerson. Well, there are experts in the department who 
are looking at that. I have read it, but I am not an expert in 
that area in terms of the monetary issue, but----
    Ms. Speier. All right, enough said. You are shaking your 
head. Would you like to comment?
    Mr. Judd. Yes, I would. What we are offering, what this 
bill is offering right now, you are getting an hour and a half 
of work out of agents on the border to secure the border that 
is broken. The border is broken. What we are giving you is, we 
are giving you 2 hours for the same pay that you are getting 
for an hour and a half. That is fiscally responsible and for 
anybody to say that it is not and that it needs to be reviewed 
is outrageous. It is an outrageous claim. Okay, this is 
fiscally responsible. It saves $1 billion over what we have 
previously done in the past. And frankly, I am asking you for a 
pay cut. I am coming to you and I am telling you, agents are 
willing to take a pay cut to secure--to better secure the 
border.
    We are not talking about AUO abuses amongst frontline 
agents. We are talking about AUO abuses amongst management. And 
even though we are talking about AUO abuses amongst management, 
we are coming to you and saying, Look, we will fix the problem 
that management created; we will give you the fix, and the fix 
is there, and it saves the taxpayers money, and it secures the 
border.
    It is--I don't understand how the administration can 
possibly say that we have to review this when they have 
proposed similar--in appropriations, similar measures, and now 
all of a sudden we have to review it. I don't understand.
    Ms. Speier. Well, I think there are others here that 
disagree with you, Mr. Judd.
    My time is expired.
    Mr. Chaffetz. Thank you.
    I now recognize the gentleman from South Carolina, Mr. 
Gowdy for 5 minutes.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Ms. Emerson you are an attorney, correct?
    Ms. Emerson. Yes, sir.
    Mr. Gowdy. I am a simple-minded person who tries to assign 
commonly understood definitions to words. What does the word 
``uncontrollable'' mean to you?
    Ms. Emerson. That would mean that it would be unscheduled.
    Mr. Gowdy. So ``uncontrollable'' means unscheduled? So I 
could not schedule to write a report after hours, and that 
would count as uncontrollable? Is that your testimony?
    Ms. Emerson. It would depend on the situation.
    Mr. Gowdy. How about a report that has no deadline 
whatsoever?
    Ms. Emerson. Again, it would depend on the situation.
    Mr. Gowdy. Well, how in the world does that depend on the 
situation? If there is no deadline, how is it uncontrollable? 
Why can't you do it the next day during your normal working 
hours?
    Ms. Emerson. That is possible.
    Mr. Gowdy. Possible? Possible? How about watching movies, 
is that controllable?
    Ms. Emerson. As was referenced earlier, that would be seen 
most likely as misconduct and would be handled separately.
    Mr. Gowdy. Most likely. How about watching television, is 
that controllable?
    Ms. Emerson. It would depend on the situation.
    Mr. Gowdy. Depend on the show or depend on the situation?
    Ms. Emerson. It would depend on the situation.
    Mr. Gowdy. Well, Ms. Emerson, most folks don't go into law 
enforcement for the money. It is an incredibly difficult job 
that takes its toll on every single aspect of life. So they 
don't go into it for the money, and they don't go into it for 
the easy hours or the prestige. And it is for that reason and 
many others that I have a tremendous amount of respect for the 
women and men in law enforcement. It is an incredibly hard job.
    But people who live under the laws fully expect those who 
execute and enforce the laws to abide by them. And your 
definition of ``uncontrollable'' would make a law school 
professor blush. Watching television is not uncontrollable. 
Watching movies is not uncontrollable. Writing reports with no 
deadline is not uncontrollable. Do your agents ever testify in 
court hearings, Ms. Emerson?
    Ms. Emerson. If you--yes. Yes.
    Mr. Gowdy. Would you rather me ask the agent? Do you ever 
testify in court hearings?
    Mr. Vitiello. I have.
    Mr. Gowdy. Do you ever swear out search warrants or arrest 
warrants?
    Mr. Vitiello. I have provided affidavits for that purpose.
    Mr. Gowdy. Right, and an affidavit is under oath, right?
    Mr. Vitiello. Correct.
    Mr. Gowdy. You ever testify before a grand jury?
    Mr. Vitiello. I have.
    Mr. Gowdy. You ever testify in sentencing hearings?
    Mr. Vitiello. I don't believe so.
    Mr. Gowdy. But your agents could.
    Mr. Vitiello. Yes.
    Mr. Gowdy. All right. And the common theme in all of that 
is the credibility of the agent, right?
    Mr. Vitiello. Correct.
    Mr. Gowdy. Do you agree that acts of deceit or dishonesty 
or fraud could be used to impeach the credibility of a law 
enforcement agent?
    Mr. Vitiello. I do.
    Mr. Gowdy. In fact, it often is, right?
    Mr. Vitiello. Correct.
    Mr. Gowdy. And so when you are in front of a jury and you 
are testifying that you witnessed X, Y or Z happen and your 
credibility is being attacked because you committed what some 
might conclude to be an act of dishonesty, that hurts the 
entire cause of law enforcement, doesn't it?
    Mr. Vitiello. It does.
    Mr. Gowdy. Do you agree with Ms. Emerson's definition of 
``uncontrollable''?
    Mr. Vitiello. I think that there are situations within the 
work that require agents to flex beyond their shift. What is--
what was pointed out in the findings and what CBP agreed needed 
to be worked on were these allegations of misuse of time, 
whether within AUO or without it. And so we have taken that to 
heart. Those matters will be referred to the Internal Affairs 
investigative process and then dealt with appropriately after.
    Mr. Gowdy. Well, I say this with all due respect as 
somebody who is crazy about law enforcement and respects the 
women and men who go into it, once you lose your credibility, 
it is almost impossible to get it back. There was a German 
philosopher that I think the chairman is a fan of, Friedrich 
Nietzsche, who said, I'm not mad that you lied to me; I'm mad 
that I can't believe anything else you ever tell me. So deceit 
and dishonesty matters, and it impacts your ability to do your 
job and the women and men who also wear uniforms, whether it is 
a municipal police officer or a DEA agent. So I hope this gets 
fixed, and I hope it gets fixed real soon, and I hope the 
definition of ``uncontrollable'' becomes something that the 
jury, the American people, can understand, because watching TV 
and watching movies and writing reports with no deadline 
doesn't fit that definition.
    I yield back, Mr. Chairman.
    Mr. Chaffetz. I thank the gentleman.
    I will now recognize the gentlewoman, Ms. Maloney for 5 
minutes.
    Mrs. Maloney. Well, first of all, thank you, Mr. Chairman, 
and ranking member for calling this meeting. And I read a 
recent Washington Post article about the misuse of 
administratively uncontrollable overtime at the Department of 
Homeland Security. And I would like unanimous consent to place 
it in the record.
    Mr. Chaffetz. Without objection, so ordered.
    Mrs. Maloney. I would like to follow up with a little 
bipartisan support for Mr. Gowdy's statements and ask Special 
Counsel Lerner, in your report, you questioned, as he did, the 
ability and willingness of the Department to address the AUO 
problem. And can you explain for us the reasoning underlying 
your concern? Roughly 89 percent of those workers in the 
Situation Room were claiming overtime, yet they were watching 
movies. Could you elaborate, Ms. Lerner, on your concerns?
    Ms. Lerner. Sure, I mean, the extent of the problem 
certainly goes to my concern about solving the problem, because 
it is so widespread. We know that there are 22,000 Border 
Patrol agents in CBP alone who are AUO eligible. We know that 
there is $500 million in overtime at CBP alone. If even a 
fraction of that amount is improper, we are talking about a 
huge amount of money in the budget.
    So it's a widespread problem, but I also want to emphasize 
that it's a problem along a continuum, I think. Based on the 
information that we have now, there may in fact be some 
fraudulent use of overtime where folks are claiming it who are 
not, in fact, working at all. There may be people who are 
working but not doing AUO-certified activities.
    And just so the record is clear, the regulations are very, 
very clear about the definition of what irregular, what type of 
work is qualified for AUO. It has to be irregular and 
occasional circumstances, where, for example, the failure to 
stay on duty would equal negligence. So, you know, we don't 
have to guess at what the regulations are intending for this 
type of overtime. It is very clear.
    And I think it is terrific that this committee is focused 
on this, and I think that the statements from DHS have been 
positive in terms of recognizing the problem. Lots of times we 
get reports back from agencies that don't even admit that there 
is a problem. So, I'm hopeful that that will lead to change, 
but I think that it is an entrenched problem, it is a 
widespread problem, and it is part of the culture, and it is 
probably going to take some sort of change in the law to solve 
it.
    Did I answer your question?
    Mrs. Maloney. Yeah, but basically you are saying that they 
could take steps right now to address it. They could right now 
crack down on those areas that are clearly not eligible, as he 
mentioned, you know, putting off the time for your reports, 
movies, sitting there. Given the problems that we have in our 
budget with sequestration and others, it's something that we 
could address already in the agencies. And we have run through 
it.
    I just would like to ask all the panelists to put in 
writing, Ms. Emerson and Vitiello and Judd, what you are 
already doing right now to address it, and get it back to the 
committee to review as we proceed to go forward.
    But I want to focus on one of the whistleblowers who was 
aware of these abuses for years, but then he really began to be 
concerned after sequestration kicked in and was implemented 
this year, and this particular person was worried that 
employees were losing work and important programs were being 
cut while other employees were watching television and 
continuing to get this $500 million that you are talking about 
and to receive improper AUO payments, which is outrageous.
    So, I would like to ask Ms. Emerson and Mr. Vitiello, as 
you know, sequestration was implemented this year and current 
budget talks are literally underway right now for the coming 
years, 2014 and 2015, and we are also looking at alternatives 
to replace sequestration. But if Congress does not replace 
sequestration cuts, further cuts will be imposed on agencies, 
including the Department of Homeland Security, for fiscal year 
2013. And CBP was able to avoid furloughs. But are you 
concerned that the Department may have to furlough employees 
and cut important programs while AUO continues to be routinely 
used and authorized for administrative tasks as the 
whistleblower pointed out? And why aren't you cracking down on 
these abusive practices of AUO? Ms. Emerson and Mr. Vitiello?
    Mr. Vitiello. So, the allegations of misconduct or the 
misuse of the funding is being investigated by Internal 
Affairs. There is a process for that and that will be dealt 
with appropriately.
    As it relates to the budget, most of the AUO that's used by 
the Border Patrol in that account is used in the field. Very 
little of it is used at headquarters. And we are in the middle 
of reviewing CBP-wide and then the Secretary has ordered review 
for the Office of General Counsel across the Department. Once 
those reviews are complete, we at CBP can rewrite the 
directives and change the instructions to make them more 
applicable.
    Mrs. Maloney. Yeah, okay. As I understand it, during 
sequestration CBP originally considered eliminating all AUO and 
ended up cutting back on the amount of AUO. Can you tell us why 
and how that decision was made?
    Mr. Vitiello. So, when we did the planning for the budget, 
one of the planning scenarios was to decertify AUO, and AUO-
earning employees did in fact get a potential decertification 
letter. We were able to make significant cuts in other areas, 
including overtime, to avoid both furloughs and 
decertification.
    Mrs. Maloney. My time has expired.
    Mr. Chaffetz. Thank you.
    I will now recognize myself for 5 minutes as we start 
another round, and then we will turn the chair over to Mr. 
Bentivolio.
    Ms. Emerson, how many people within your Department? The 
one that you are responsible for, Human Capital, how many 
people are in your Department?
    Ms. Emerson. In the Department?
    Mr. Chaffetz. Yes.
    Ms. Emerson. Approximately 230,000 employees.
    Mr. Chaffetz. But how many within your----
    Ms. Emerson. In OCHCO, in the Office of the Chief Human 
Capital Officer? Approximately 210.
    Mr. Chaffetz. Two hundred ten. And how many attorneys does 
Homeland Security have?
    Ms. Emerson. I'm not sure. I am an attorney, but I am not 
acting as an attorney for the Department of Homeland Security. 
So, let me just clarify with that question. I'm not acting as 
an attorney for DHS.
    Mr. Chaffetz. Ms. Lerner, how many people within the Office 
of Special Counsel did you have working on this?
    Ms. Lerner. Well, you are looking at the main one right 
here.
    Mr. Chaffetz. Yes.
    Ms. Lerner. And, you know, we have only about 8 people in 
our disclosure unit.
    Mr. Chaffetz. Okay, so you have 8 people. You have 230,000. 
You have a couple hundred that you are responsible for. There 
are undoubtedly hundreds, if maybe not thousand-plus attorneys. 
These women right here were able to figure this out in pretty 
short order. They focused on it. Focus determines reality.
    Ms. Lerner, tell me about the Situation Room. One of the 
highlights here is the Situation Room in Washington, D.C. What 
it is? How many employees are we talking about? What happens 
there in the Situation Room?
    Ms. Lerner. I'm sorry, I don't remember offhand how many 
employees. It is not a huge office. I think it is under 100. 
But we know that about 90 percent of the time people were 
taking 2 hours of AUO who worked in the Situation Room.
    Mr. Chaffetz. Every day?
    Ms. Lerner. Every day, yeah, about 90 percent of the time.
    Mr. Chaffetz. So, 90 percent of the time the people working 
in the Situation Room--now, Situation Room connotates it is 
fairly important, correct? What were they doing when they took 
an extra 2 hours?
    Ms. Lerner. Well, Mr. Ducos-Bello, who was the 
whistleblower from the Situation Room, alleged that he observed 
people watching TV, being on the Internet, relaxing, and that 
was why he felt so compelled to come forward. He felt that 
there was a real waste.
    Mr. Chaffetz. And you fairly quickly----
    Ms. Lerner. On a continuum that would be----
    Mr. Chaffetz. You fairly quickly were--how long did it take 
you to come to that conclusion, that this was indeed a valid 
allegation?
    Ms. Lerner. What we look at again is a substantial 
likelihood of the allegations. And before we make a referral to 
the agency we do a review of the whistleblower's allegations.
    Mr. Chaffetz. But you substantiated it?
    Ms. Lerner. We don't actually substantiate them. It has to 
meet that threshold, and we decided that Mr. Ducos-Bello's 
allegations met that threshold for referral to the agency for 
investigation. And that probably took us a couple of months.
    Mr. Chaffetz. And they came back and actually confirmed it?
    Ms. Lerner. They did come back and confirm it, yep.
    Mr. Chaffetz. So now that they have confirmed it, the 
allegation was made, it was investigation by the Office of 
Special Counsel, has anybody been fired? Ms. Emerson?
    Ms. Emerson. That's being handled by the component. That's 
not handled by my office.
    Mr. Chaffetz. Who is the component?
    Ms. Emerson. The component is the Border Patrol.
    Mr. Chaffetz. So what's your responsibility here? I mean, 
if you are the chief of human capital and you have got 
allegations of fraud and misuse of dollars, potentially 
criminal--or potential, you know, breaking of the law--you just 
wash your hands of it?
    Ms. Emerson. Well, actually, I'm involved in the 
Department-wide----
    Mr. Chaffetz. Here we go. We are in the circle again. Let's 
go back to what Mr. Gowdy was talking about. There's valid use 
of AUO and there's then an abuse of AUO. Explain to me in your 
own words what an abuse of AUO is.
    Ms. Emerson. Well, some of the things that we heard about 
and we saw in Ms. Lerner's reports could very well include 
employee misconduct. And in those instances----
    Mr. Chaffetz. Well, explain to me employee misconduct, give 
me some examples, give me a definition of what a misuse of AUO 
would be.
    Ms. Emerson. Well, from what I'm understanding, those are 
currently under investigation.
    Mr. Chaffetz. No, no, no, no, no, no. You are not 
investigating the definition. We have given you weeks' notice, 
in fact years' notice, that this is an issue. You are 
highlighting and confirming this committee's concern, and that 
is that you haven't taken it seriously. What is the definition 
of AUO, and what is the definition of an abuse of AUO?
    Ms. Emerson. The definition is provided by in the 
government-wide regs and in the laws. 5 U.S.C. Speaks on it, as 
does the implementing regulations, 5 CFR 550, and it sets out 
the definition for AUO.
    Mr. Chaffetz. And what's the consequence if you violate the 
AUO?
    Ms. Emerson. In terms of employee misconduct, that is 
handled by the component.
    Mr. Chaffetz. So they have full discretion? They just give 
a wink and a nod and let it keep happening?
    Ms. Emerson. That could lead to disciplinary action.
    Mr. Chaffetz. Which could be what?
    Ms. Emerson. Up to and including removal from Federal 
service.
    Mr. Chaffetz. Has that ever happened?
    Ms. Emerson. I would defer to the Border Patrol for that.
    Mr. Chaffetz. I mean, AUO is--we have other departments and 
agencies, too. Are there any sort of investigations happening 
from your Department, or the Department of Homeland Security in 
other--we are focused on CBP here--any others that you are 
investigating for abuse of overtime?
    Ms. Emerson. In the Department-wide review we are looking 
at the Department component-by-component policies and 
procedures for AUO. It is a Department-wide review, including--
--
    Mr. Chaffetz. I'm going to ask one more time as I conclude 
here. What is an abuse of the AUO?
    Ms. Emerson. The abuse of the AUO in terms of employee 
misconduct could be a number of issues, some of which may be 
spelled out in the OSC reports, but those are currently being 
investigated and they would be handled by the component.
    Mr. Chaffetz. You can't seem to answer that question, can 
you? Defining an abuse of the AUO. One more time, do you have 
any--don't tell me it's being reviewed. What would constitute 
an abuse of the AUO?
    Ms. Emerson. It would depend on the situation. It really 
would.
    Mr. Chaffetz. This is unbelievable, and unbearable, and it 
is a total lack of leadership throughout the Department and 
agency.
    I yield back my time and recognize the gentleman from 
Massachusetts, Mr. Tierney.
    Mr. Tierney. Ms. Emerson, let me see if I can help you out 
a little bit. Ms. Lerner's group found that there was a 
reasonable belief that the allegations were accurate. I should 
maybe ask Ms. Lerner that. Is that your standard?
    Ms. Lerner. Substantial likelihood----
    Mr. Tierney. Substantial likelihood. Ms. Lerner found that 
there was a substantial likelihood. Now it is up to your people 
to determine whether or not it actually happened, right? She 
sends it to you as a finding that there is a substantial 
likelihood it happened. Your group then has to determine 
whether or not it did happen.
    Ms. Emerson. It actually goes to the Office of General 
Counsel. That's not my group.
    Mr. Tierney. Okay.
    Ms. Emerson. The Office of General Counsel is actually the 
one that receives the Office of Special Counsel reports. And 
they usually share that information with the IG, and then they 
deal with the component regarding the issue. So those issues 
specifically do not come to my office.
    We have been tasked, because it is a Department-wide review 
of AUO throughout the Department component by component, my 
office has been asked to assist in that matter. But the actual 
discipline of any employees from that goes to the component.
    Mr. Tierney. All right. So as unusual as it may seem to us, 
the fact that you are the chief officer here has nothing to do 
with discipline or violations or anything like that. You are 
strictly policy. Is that the deal?
    Ms. Emerson. We have oversight, and certainly if a 
component came to us to ask for advice and guidance, or if we 
are directed to handle a situation involving a disciplinary 
action----
    Mr. Tierney. All right, but you don't check to see whether 
or not they properly handle it? You don't ever take 
responsibility to make sure that each component actually does 
its work?
    Ms. Emerson. Only if request----
    Mr. Tierney. Request from who?
    Ms. Emerson. From leadership. For example----
    Mr. Tierney. All right. So, please, so it goes to somebody 
else, and they are responsible for it, and you have nothing to 
do with it after that. Even though you are the chief officer of 
this thing, you never, ever take a personal responsibility 
without being requested by somebody else to see whether or not 
there was a continuing investigation that came to a conclusion 
with actions taken as a result of that conclusion?
    Ms. Emerson. In this situation----
    Mr. Tierney. In any situation.
    Ms. Emerson. It depends on the situation.
    Mr. Tierney. Forget it. Forget it. I was trying to help you 
out, and beyond help. All right, beyond help, disturbingly so.
    So now we have the Internal Affairs of CBP, Mr. Vitiello, 
do they have a role here? They are the ones that are 
responsible for investigating those specific referrals from 
Special Counsel, am I correct?
    Mr. Vitiello. That's correct.
    Mr. Tierney. Okay. Fifty percent of their employees, 50 
percent of their employees receive AUO.
    Mr. Vitiello. In the Internal Affairs, yeah, correct.
    Mr. Tierney. Do you have a conflict of interest problem 
there?
    Mr. Vitiello. I don't believe so.
    Mr. Tierney. Why not?
    Mr. Vitiello. Well, that's the compensation system that was 
available when those positions were filled and people were 
hired for them.
    Mr. Tierney. Yeah, but I'm hearing from Mr. Judd that back 
into 1996, at least, it seems that, you know, everybody sort of 
was in on the game here. And so are they going to start looking 
at this thing saying, well, it's the game, everybody is in on 
it, we take advantage of it, they take advantage of it? That 
may color the way they proceed, no?
    Mr. Vitiello. I don't believe so.
    Mr. Tierney. So $22,000 per employee per year on this 
system and you don't think that they are going to have some 
loss of objectivity from the fact that they are all in on the 
process that allows this to happen?
    Mr. Vitiello. They are responsible to claim the hours that 
they work, and the nature of their work sometimes exceeds the 
regularly----
    Mr. Tierney. The nature of everybody's work sometimes 
exceeds it, but we found abuse here, and some of the abuse we 
found out is policy, almost. In fact, that people are 
encouraged do it, that they would be there. So I just have a 
problem with it. I think you ought to have a problem with it. I 
hope somebody in the Department takes that into account when 
they are looking at that.
    Ms. Lerner, do you have a problem with that?
    Ms. Lerner. I mean, I think the problem is that there are 
folks who are at headquarters offices who are not, you know, on 
the border, who are taking this leave. But we also have to be 
careful not to throw the baby out with the bath water. If there 
are folks who are actually legitimately taking or using AUO, by 
all means, but it seems that there needs to be a real effort on 
the part of DHS to figure that out, and you could put a stop to 
it right away just by saying anyone who is not working on an 
irregular or, you know----
    Mr. Tierney. Well, they can interpret the statute. I guess 
that's the problem here. We have this ongoing general review 
about whether or not the whole system works, but then it seems 
to be nobody is saying like, look, from this day forward, no 
matter what the understanding was that Mr. Judd referred to 
that has been going on as a wink and blink, and this is an 
extra 25 percent for everybody on that, whatever that is, 
somebody ought to come down with an affirmative policy 
statement that says from this day forward we are going to 
interpret this law very, very strictly, as Mr. Gowdy was 
putting forward. We all know what uncontrollable is. From this 
day forward, whatever the deal was before, it is over, and now 
while we are doing our overall policy that's going to be the 
implementation.
    Ms. Lerner. If I could just add----
    Mr. Tierney. Sure.
    Ms. Lerner. --there are five more reports that are due to 
us, and we may have more information from the agency when we 
get those reports about what remedial efforts they are taking.
    Mr. Tierney. Okay.
    Ms. Lerner. So maybe we will get more answers shortly.
    Mr. Tierney. Wishful thinking.
    Thank you. I yield back.
    Mr. Bentivolio. [Presiding] Thank you, Mr. Tierney. 
    I'm listening to you, Ms. Emerson, and Mr. Tierney is 
trying to give you all the help you need. You said you were an 
attorney?
    Ms. Emerson. I have a JD, member of the bar.
    Mr. Bentivolio. Right.
    Ms. Emerson. But in my capacity as CHCO, I'm not an 
attorney, and I don't have attorneys who work for me in my 
organization.
    Mr. Bentivolio. I understand. Let me ask you a question. A 
border patrolman arrests somebody within an hour of the end of 
their shift. They have to drive a distance to process the 
criminal or the person. And they take about an hour and a half 
beyond their shift to complete that. Is that fair overtime?
    Ms. Emerson. I would like to defer to the Border Patrol.
    Mr. Bentivolio. It's a very simple question. He is in the 
process of doing his job, which is to protect the border, him 
or her, and they have to process somebody and go into an hour 
and a half of overtime. In your opinion, is that legitimate 
overtime?
    RPTS COCHRAN
    DCMN CRYSTAL
    [12:02 p.m.]
    Ms. Emerson. It sounds like it would be.
    Mr. Bentivolio. It is very simple. It is, beyond a 
reasonable doubt. I have never worked Border Patrol. I know 
what responsible and necessary overtime. If he is processing 
and doing his job and he needs that additional hour and a half, 
it is legitimate overtime. Would you agree, sir?
    Mr. Vitiello. I would.
    Mr. Bentivolio. Okay.
    Another officer, end of his shift, he is not processing, he 
is not doing anything, but he wants to put in overtime. And so 
he goes on the Internet, does something, maybe checks his 
personal email or falls asleep. I think I even read that in one 
of these reports. Legitimate overtime or not?
    Ms. Emerson. No.
    Mr. Bentivolio. Okay. You are an attorney, or have attorney 
training. You ever heard of the term plausibly state, boldly 
assert?
    Ms. Emerson. I am sorry, could you repeat that?
    Mr. Bentivolio. Have you ever heard the term or phrase 
plausibly state, boldly assert?
    Ms. Emerson. No, sir.
    Mr. Bentivolio. Okay. It is a lawyer thing, isn't it? Are 
you a lawyer, Mr. Tierney?
    Mr. Tierney. I am a lawyer.
    Mr. Bentivolio. You have heard that before?
    Mr. Tierney. Yes.
    Mr. Bentivolio. Great.
    Is it within your authority to notify when you hear 
somebody is abusing their overtime to send a letter to the 
Border Patrol or some other agency that comes under your 
jurisdiction outlining those problems or situations, put them 
on notice, plausibly state.
    Ms. Emerson. If it came to my attention, yes, sir.
    Mr. Bentivolio. Okay. Well, I have got the impression that 
quite a few of these concerns came to your attention.
    Ms. Emerson. Actually, they go, because they are coming 
from OSC, they go to the Office of the General Counsel, who 
then shares it with OIG, the Office of Inspector General, and 
then they usually reach out to the component where the alleged 
act occurred. I am involved in this situation because it 
involves Department-wide review of AUO component by component.
    Mr. Bentivolio. Okay. So individually you don't deal with 
individual issues?
    Ms. Emerson. Usually it depends on what the issue is. But 
when it is from the Office of----
    Mr. Bentivolio. Abuses of overtime. Blatant disregard for 
the ethics of overtime.
    And I believe you have training in that, don't you, Mr. 
Vitiello? I think I read, since 2007 you train your staff on 
ethics and what abuses of overtime are and are not, correct?
    Mr. Vitiello. There was specific training issued after the 
2008 findings.
    Mr. Bentivolio. But it is not working, or it is?
    Mr. Vitiello. Well, the findings indicate that we still 
have a lot of work to do, that the training in and of itself 
isn't sufficient. That is why the internal review that is being 
conducted at CBP specific to this issue, a new directive is in 
order and we are working on that, and then the Department-wide 
review ordered by the Secretary is also in order.
    Mr. Bentivolio. Okay. So just for my understanding, because 
I am somewhat unfamiliar with your process, but abuses come to 
your attention, is that correct, Ms. Lerner?
    Ms. Lerner. Abuses come to us when whistleblowers come to 
us.
    Mr. Bentivolio. Okay, whistleblowers come to you, they 
point it out. Do you in turn send some kind of notification or 
letter about these abuses to----
    Ms. Lerner. The head of the agency.
    Mr. Bentivolio. The head of the agency, but not the chief 
of human resources?
    Ms. Lerner. No. In this case we sent it to then Secretary 
Napolitano.
    Mr. Bentivolio. Okay. Does the employee who is abusing 
overtime get a letter of reprimand that goes in their personnel 
file?
    Ms. Lerner. We don't have authority for disciplinary 
action. They did not report back to us in this case. Sometimes 
they do but sometimes--well, in this case----
    Mr. Bentivolio. Do you have authority to follow up?
    Ms. Lerner. We do have--I mean, statutorily we don't have 
it explicitly, but we do follow up. In cases like this we will 
ask the agency for supplemental reports. In two of the six 
cases that we have outstanding we have asked for additional 
information. So, yes, we can follow up.
    Mr. Bentivolio. You can, but not always. Who is 
responsible----
    Ms. Lerner. If we think that the circumstances require 
follow-up, we do it. We have done it in many cases since I have 
taken over as Special Counsel in 2011. Where an agency promises 
to make systemic reforms, we do follow up to make sure that 
they are being taken. So, yes, we do.
    Mr. Bentivolio. I see I have run out of time. Do you have 
additional questions?
    Mr. Tierney. No.
    Mr. Bentivolio. Okay. I have a few more questions. I would 
like to finish up here and then we can adjourn.
    In regards to the employees that abuse overtime, do you 
counsel the employee? Do you give them a letter of reprimand, 
Mr. Vitiello? Did I pronounce that correctly.
    Mr. Vitiello. Vitiello, correct.
    So when it is established that an employee is engaged in 
misconduct, whether for this or other matters, it is referred 
and they are put through a process with our own HR department 
for discipline, yes.
    Mr. Bentivolio. Okay. What is the discipline? Do they have 
to give back the money or what? What is the discipline?
    Mr. Vitiello. It depends on the allegation. It depends on 
what the findings develop.
    Mr. Bentivolio. Okay. Are you familiar with the case 
studies that I have read that was given to me in the brief?
    Mr. Vitiello. Yes. I have considered all the materials that 
brought us here today.
    Mr. Bentivolio. Okay. Employees using overtime to sleep or 
watch the Internet. What happens to that employee?
    Mr. Vitiello. It depends on the findings. If those 
allegations are proven to be true, then they are put through a 
discipline process. And just to give you some data, in 2012 
there were 84 cases around AUO that were alleged in CBP in 2012 
until today, so in the last 2 years. And the range of 
dispositions that I have, according to the reports, oral or 
written counseling; closed with no action, which they weren't 
substantiated; there is 43 that are still open; and then 
grievances filed against. There is one anomaly case which is 
still being considered. So that process does work and we have 
used it.
    Mr. Bentivolio. Well, apparently it is not, because this 
has been ongoing since 2007, to my understanding, according to 
this briefing.
    Mr. Vitiello. But to the extent that the agency is aware of 
misconduct, it is referred through those processes.
    Mr. Bentivolio. Okay. So on individual cases you are 
reprimanding, counseling employees that you found in violation 
or improper use of overtime.
    Mr. Vitiello. And then we are attempting to do structural 
changes to put this issue behind us. That is why we are excited 
about the prospect of legislation that gets us to a fix, to put 
this kind of issue behind us.
    Mr. Bentivolio. Great. Thank you very much. I appreciate 
it.
    I have no further questions. Any questions?
    Mr. Tierney. No.
    Mr. Bentivolio. I would like to thank our witnesses for 
taking time from their busy schedule to appear before us today. 
The committee stands adjourned. Thank you.
    [Whereupon, at 12:10 p.m., the subcommittee was adjourned.]


                                APPENDIX

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