[Senate Hearing 113-369]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-369
 
                     EXAMINING THE USE AND ABUSE OF 
ADMINISTRATIVELY UNCONTROLLABLE OVERTIME AT THE DEPARTMENT OF HOMELAND 
                                SECURITY 

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE EFFICIENCY AND
      EFFECTIVENESS OF FEDERAL PROGRAMS AND THE FEDERAL WORKFORCE

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 28, 2014

                               __________

         Available via the World Wide Web: http://www.fdsys.gov

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs


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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                  THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan                 TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin             KELLY AYOTTE, New Hampshire
HEIDI HEIKAMP, North Dakota

                   Richard J. Kessler, Staff Director
               John P. Kilvington, Deputy Staff Director
               Keith B. Ashdown, Minority Staff Director
                     Laura W. Kilbride, Chief Clerk
                     Lauren Corcoran, Hearing Clerk


 SUBCOMMITTEE ON THE EFFICIENCY AND EFFECTIVENESS OF FEDERAL PROGRAMS 
                       AND THE FEDERAL WORKFORCE

                     JON TESTER, Montana, Chairman
MARK L. PRYOR, Arkansas              ROB PORTMAN, Ohio
CLAIRE McCASKILL, Missouri           RON JOHNSON, Wisconsin
MARK BEGICH, Alaska                  RAND PAUL, Kentucky
TAMMY BALDWIN, Wisconsin             MICHAEL B. ENZI, Wyoming
HEIDI HEITKAMP, North Dakota

                 Tony McClain, Majority Staff Director
                 Brent Bombach, Minority Staff Director
                       Kelsey Stroud, Chief Clerk



                            C O N T E N T S

                                 ------                                
Opening statement:
                                                                   Page
    Senator Tester...............................................     1
    Senator Portman..............................................     2
Prepared statement:
    Senator Coburn...............................................    25

                               WITNESSES
                       Tuesday, January 28, 2014

Hon. Carolyn Lerner, Special Counsel, U.S. Office of Special 
  Counsel........................................................     4
Ronald D. Vitiello, Deputy Chief, U.S. Border Patrol, U.S. 
  Customs and Border Protection..................................     6
Catherine Emerson, Chief Human Capital Officer, U.S. Department 
  of Homeland Security...........................................     7
Brandon Judd, President, National Border Patrol Council..........     9

                     Alphabetical List of Witnesses

Emerson, Catherine:
    Testimony....................................................     7
    Prepared statement...........................................    37
Judd, Brandon:
    Testimony....................................................     9
    Prepared statement...........................................    40
Lerner, Hon. Carolyn:
    Testimony....................................................     4
    Prepared statement with attachment...........................    28
Vitiello, Ronald D.:
    Testimony....................................................     6
    Prepared statement...........................................    37

                                APPENDIX

Responses to post-hearing questions for the Record:
    Ms. Lerner...................................................    42
    Mr. Vitiello.................................................    45
    Ms. Emerson..................................................    48


                     EXAMINING THE USE AND ABUSE OF
                    ADMINISTRATIVELY UNCONTROLLABLE
            OVERTIME AT THE DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                       TUESDAY, JANUARY 28, 2014

                                 U.S. Senate,      
        Subcommittee on the Efficiency and Effectiveness of
                Federal Programs and the Federal Workforce,
                      of the Committee on Homeland Security
                                        and Governmental Affairs,  
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:32 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Jon Tester, 
Chairman of the Subcommittee, presiding.
    Present: Senators Tester and Portman.

              OPENING STATEMENT OF SENATOR TESTER

    Senator Tester. I will call to order this hearing of the 
Subcommittee on Efficiency and Effectiveness of Federal 
Programs and the Federal Workforce.
    Senator Portman will be here momentarily, but we will get 
going for the sake of time, your time and ours, too. I want to 
thank the witnesses for being here today.
    This afternoon's hearing is titled, ``Examining the Use and 
Abuse of Administratively Uncontrollable Overtime at the 
Department of Homeland Security.'' Once again, I want to thank 
Senator Portman for his bipartisan nature and ability to work 
with.
    On October 31, 2013, the U.S. Office of Special Counsel 
(OSC) issued a report to the President on longstanding abuse of 
overtime payments by the Department of Homeland Security (DHS). 
At DHS, administratively uncontrollable overtime (AUO), is 
intended to allow for compensation of certain employees for 
unscheduled overtime that requires their presence on the job. 
For example, the use of AUO would be appropriate for a Border 
Patrol agent working beyond originally scheduled hours to 
apprehend a suspect while trying to illegally cross the border.
    However, the OSC's report showed that employees from 
multiple DHS agencies regularly misuse AUO. For example, 
employees working in purely administrative functions in the 
commissioner situation room or an office within the Customs and 
Border Protection (CBP) claim to have worked 2 hours of AUO 
following their assigned shift approximately 90 percent of the 
time. Investigators found that these hours were not a result of 
unpredictable or compelling law enforcement activities. 
Instead, they were spent performing administrative functions, 
and in some cases, watching TV or surfing the Internet.
    What is most disturbing is that this is not the first time 
we have heard about AUO abuses at DHS. The OSC released a very 
similar report regarding Border Patrol officers in Washington 
State in 2008. When this last report came out 5 years ago, DHS 
and CBP promised reforms, but we have not gotten very far.
    We all greatly appreciate the work being done by the men 
and women at DHS. However, I am sure that they would agree that 
the employees' action and misuse of public funds outlined in 
the OSC report are unacceptable. It is estimated that the 
practice is costing taxpayers millions of dollars each year.
    Today, we hope to examine the instances of AUO abuse raised 
in the Special Counsel's report. We also seek to learn more 
about how DHS and CBP are responding to the recent 
investigative report, what disciplinary actions are being 
taken, and what additional cases of payroll fraud may have been 
discovered.
    I want to thank our witnesses once again for joining us 
today and for their ongoing work to restrict AUO abuses at the 
Department of Homeland Security. I look forward to our 
discussion. I look forward to your testimony.
    With that, I will turn it over to Ranking Member Portman 
for his opening statement. Senator Portman.

              OPENING STATEMENT OF SENATOR PORTMAN

    Senator Portman. Great. Thank you, Mr. Chairman.
    I appreciate the witnesses being here and I join the 
Chairman in saying we appreciate your hard work to try to get 
at this abuse. More importantly, I appreciate the service that 
Department of Homeland Security employees perform every day, 
including dangerous activities on our border and around the 
world. We are here today to talk about an instance where the 
taxpayer is not being served, and this is abuse of AUO.
    For about 5 years, we believe the Department has been aware 
of this problem, and as the Chairman has said, we do not 
believe that enough is being done to focus on it. The Office of 
Special Counsel brought this to the attention of DHS leadership 
back in 2008. Most recently, in an October 31, 2013 report to 
President Obama, the U.S. Office of Special Counsel describes a 
series of situations involving Customs and Border Protection 
headquarters in D.C., offices in Texas, California, a Texas-
based Immigration and Customs Enforcement (ICE) office, D.C. 
headquarters of the Immigration Service, and a Georgia-based 
training facilities, all of which, according to the U.S. Office 
of Special Counsel, there were situations of abuse.
    Despite the administrative nature of the work that is done 
in those kinds of offices, in one office, employees reportedly 
claimed 2 hours of AUO following their assigned shift 89 
percent of the time. So, almost 90 percent of the time, they 
would claim 2 hours following their assigned shift.
    Improper claims of AUO have reportedly cost taxpayers up to 
$9 million annually at 68 DHS offices identified by 
whistleblowers. While the total amount and cost of annual AUO 
abuse throughout the Department is unknown, maybe we will get 
more of those numbers today from you.
    It is obvious the kind of work being done in the six cases 
referenced in the OSC notification do not fit the criteria to 
be eligible for AUO. They are not activities like responding to 
a criminal activity and they are not being used in only an 
occasional basis. Unfortunately, it is also evident that 
throughout many parts of DHS, there seems to be a culture in 
the workplace that condones this, either tacitly or maybe more 
explicitly, so it is something that we need to get to the 
bottom of and that is why this hearing is important.
    I understand you are announcing today at DHS certain 
categories of employees, such as those in headquarters 
positions, will be barred from utilizing administrative 
overtime. That seems like a good step to me. I would like to 
learn more about it, but I also look forward to hearing from 
witnesses today about a more comprehensive way forward to deal 
with this issue and deal with this underlying issue of the 
culture, being sure that it is not encouraging the abuse.
    Today, we will try to get to the bottom of this. I thank, 
again, the folks here today with us and others that are on a 
path to correct this issue and fix the condoning of this 
practice, and Mr. Chairman, I look forward to hearing from our 
witnesses today.
    Senator Tester. Well, thank you, Senator Portman.
    Once again, welcome to the witnesses. I think we are very 
fortunate to have a panel that has the expertise that it has in 
front of us today and I want to thank you and your folks in 
your different agencies for allowing you to be here today.
    For introductions, first, we have Carolyn Lerner, who is 
the head of the Office of Special Counsel, an independent 
investigative and prosecutorial Federal agency. Her office 
released the report on AUO abuses at DHS and has been 
investigating additional instances of abuse since October. It 
is great to see you again, Carolyn. Thanks for being here.
    Ron Vitiello is the Deputy Chief of U.S. Border Patrol. In 
this role, he serves as Chief Operating Officer (COO) for the 
Border Patrol and is responsible for daily operations. It is 
good to see you again, Chief.
    Catherine Emerson is the Chief Human Capital Officer (CHCO) 
at DHS. She is responsible for recruiting, diversity, and 
inclusion, learning and development, workforce planning, 
policies, and technologies in support of the DHS mission. You 
have a full plate. Thank you for being here today, Catherine.
    And, finally, Brandon Judd is the President of the National 
Border Patrol Counsel. A 15-year Border Patrol agent, Brandon 
has patrolled the borders in California, Arizona, Maine. He 
represents more than 17,000 Border Patrol agents and staff. You 
have a great resume. If you have not been in Montana, you are 
welcome anytime, Brandon.
    And I want to thank you all for being here. As we 
customarily do, we swear in all witnesses who appear before 
this Subcommittee, so if you do not mind, please stand and 
raise your right hand.
    Do you swear that the testimony you will give before this 
Subcommittee will be the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Ms. Lerner. I do.
    Mr. Vitiello. I do.
    Ms. Emerson. I do.
    Mr. Judd. I do.
    Senator Tester. Let the record show that the witnesses all 
answered in the affirmative.
    It goes without saying, your written testimony will be 
entered in its totality in the record. I would ask you to keep 
your oral statements to around 5 minutes, the closer the 
better, and the record will be open for 15 days following this 
hearing.
    So, Ms. Lerner, I will let you kick off the testimony. Go 
ahead, Carolyn.

TESTIMONY OF CAROLYN LERNER,\1\ SPECIAL COUNSEL, U.S. OFFICE OF 
                        SPECIAL COUNSEL

    Ms. Lerner. Thank you very much, Chairman Tester, Ranking 
Member Portman, Members of the Committee. Thank you for 
inviting me to testify today about overtime abuse at the 
Department of Homeland Security.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Lerner appears in the Appendix on 
page 28.
---------------------------------------------------------------------------
    I want just to briefly acknowledge the folks who are here 
with me from the Office of Special Counsel today, the Chief of 
our Disclosure Unit, Catherine McMullen; Lynn Alexander, 
Johanna Oliver, and Nadia Pluta, who are the attorneys in the 
unit that had primary responsibility for these matters and have 
done a great job.
    I want to just start by very briefly explaining the Office 
of Special Counsel's role in disclosure matters. OSC 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 refer the 
allegations to the head of the appropriate agency, who, in 
turn, is required to conduct an investigation and submit a 
report 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. My office then 
transmits the report with an analysis and recommendation to the 
President and the appropriate oversight Committees.
    It was within this statutory framework that we received 
disclosures from 12 whistleblowers from the Department of 
Homeland Security. They reported overtime pay abuse at 12 
separate DHS locations, nine of which involve offices within 
Customs and Border Protection. The whistleblowers allege that 
employees systematically abuse a type of overtime pay called 
administratively uncontrollable overtime. For years, it was the 
norm for employees, especially within CBP, to extend their 
shifts by 2 hours a day, every day, increasing their pay 25 
percent. Management officials were aware of the overtime misuse 
and often abused it themselves.
    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 purpose. For example, AUO is 
appropriate when an employee is apprehending a suspected 
criminal along the border and it would constitute negligence 
for the employee to leave the job unfinished.
    Each of the employees in the DHS cases here are not using 
AUO as the result of an unpredictable or a compelling law 
enforcement need. Instead, AUO is used routinely, nearly every 
day, and is an entrenched part of the culture at CBP and other 
parts of DHS. In some cases, the allegations extend to extreme 
misconduct. According to the whistleblowers, many employees 
spend the extra overtime not working at all. They relax, surf 
the Internet, and sometimes they are not even present at the 
workplace.
    In my October 31 letter to the President, which was 
attached to my written testimony, I outlined allegations from 
whistleblowers at six different DHS offices. Since then, more 
whistleblowers have stepped forward. To date, we have referred 
six additional AUO abuse cases for investigation.
    It is important to note that much of the AUO being claimed 
involves desk duty, training assignments, or even exercise 
classes, where there is no need for AUO.
    The estimated cost of abuse at these 12 locations, which 
include CBP headquarters, likely exceeds $37 million annually.
    To date, we have received four completed reports from DHS, 
and in all four, the whistleblowers' allegations were 
substantiated.
    Overtime abuse at DHS is a longstanding problem. As you 
noted, Senator Tester, in 2007, identical allegations about 
overtime abuse were substantiated by DHS. At that time, CBP 
outlined a corrective action plan, but 6 years later, that plan 
has not been implemented.
    This morning, for the first time, DHS lawyers told my 
office that the Department of Homeland Security had decided to 
suspend AUO for certain positions. I will leave it to the DHS 
witnesses to explain the details of that. This is a long 
overdue but very welcome development. As additional reports 
come in from DHS to my agency, we will continue to monitor 
whether this suspension leads to permanent reform.
    In conclusion, I want to applaud the whistleblowers who are 
speaking out, often against their own financial self-interest. 
Had they not stepped forward, these problems would never have 
come to light.
    I would be pleased to answer any questions that the 
Committee may have.
    Senator Tester. Well, thank you for your testimony, 
Carolyn, and I can tell you there will be questions. Thank you 
very much for your work.
    Ron, we look forward to your testimony.

 TESTIMONY OF RONALD D. VITIELLO,\1\ DEPUTY CHIEF, U.S. BORDER 
           PATROL, U.S. CUSTOMS AND BORDER PROTECTION

    Mr. Vitiello. Chairman Tester, Ranking Member Portman, the 
Subcommittee, thank you for the opportunity to appear before 
you today to address the recent allegations against U.S. 
Customs and Border Protection, specifically, the U.S. Border 
Patrol.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Vitiello appears in the Appendix 
on page 37.
---------------------------------------------------------------------------
    When CBP was established in 2003 in the wake of terrorist 
attacks on September 11, 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 front-line law enforcement activities, such as 
gathering intelligence and surveillance and detection, to be 
accomplished remotely. The responsibilities of a Border Patrol 
agent are arguably the most unpredictable of all the CBP 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 highways leading away 
from the border, conduct city patrols, transportation checks, 
and support anti-smuggling investigations. Regularly working in 
isolated harsh terrain, agents of the Border Patrol patrol on 
foot, in vehicles, in boats, and in some areas on horses, all-
terrain vehicles, bikes, and snowmobiles.
    The frontline border security efforts are increasingly 
augmented by advancements in technology, including enhanced 
sensor, video, and radar technology. The technology is 
sometimes affixed to unmanned aircraft systems and 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 a 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, processing intelligence at remote locations, 
following leads, and to go where the illegal activity takes 
them, even if it takes them beyond their standard duty hour.
    When it comes to paying Border Patrol agents for work 
beyond their regularly scheduled hours, the Department and CBP 
are committed to working with Congress to modernize and 
streamline the compensation structure to reflect the expanded 
responsibilities of our workforce. AUO, 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 security activities 
are conducted remotely. The work of securing the border is no 
longer limited to physical presence and our compensation system 
should reflect the current operational environment.
    The Border Patrol takes its responsibility to be a good 
steward of taxpayer dollars very seriously. Misuse of 
government funds is not tolerated. The Border Patrol has and 
will cooperate fully with all internal DHS and external reviews 
of the compensation system and procedures.
    Prior to the issuance of the Special Counsel's report, CBP 
did initiate internal working groups on AUO 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 AUO to Chief Patrol Agents and Division Chiefs, most 
recently in December 2012.
    The guidance regulated policies governing the 
Administration and management of AUO criteria that Border 
Patrol agents and their supervisors must use to deem eligible 
for AUO payments in legitimately claiming AUO and the 
responsibility required of employees. While the Department and 
CBP have taken steps to educate supervisors and employees about 
the proper application of AUO, we intend to continue to work to 
educate and train our staff in the proper use and align pay 
structures with current agency functions.
    The Border Patrol's mission requires compensation 
structures that maintain flexibility, ensure continuous agent 
coverage, provide equal pay for equal work, and enable better 
budget forecasting. We welcome a legislative solution that 
meets the agency's critical mission, promotes efficiency, and 
has the least impact on Border Patrol personnel.
    Thank you for allowing me to testify before you today, and 
I do look forward to your questions.
    Senator Tester. Well, thank you, Mr. Vitiello, for your 
testimony, and there will be questions.
    Catherine Emerson, you are up.

TESTIMONY OF CATHERINE EMERSON,\1\ CHIEF HUMAN CAPITAL OFFICER, 
              U.S. DEPARTMENT OF HOMELAND SECURITY

    Ms. Emerson. Chairman Tester, Ranking Member Portman, 
Members of the Subcommittee, thank you for the opportunity to 
appear before you today to address the Department of Homeland 
Security's use of administratively uncontrollable overtime.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Emerson appears in the Appendix 
on page 37.
---------------------------------------------------------------------------
    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. I assumed the CHCO position in August 2011. 
Additionally, I advise the Under Secretary for Management and 
the Secretary and the Deputy Secretary on workforce issues, and 
I greatly appreciate their the leadership of our employees in 
the issues that affect them.
    Properly paying our border and homeland security personnel 
and properly managing that pay system are essential to the 
Department's missions. The employees of DHS are the 
Department's most important asset. They show an exceedingly 
high level of commitment to protecting our homeland and I am 
proud to serve them. They often work long hours under difficult 
conditions, and they deserve to be appropriately compensated 
for their work.
    Our employees are compensated through a variety of pay 
systems and authorities that remind us that DHS was created by, 
in part, combining 22 different offices and agencies into one 
Department focused on the mission of homeland security.
    One of the pay authorities that DHS utilizes to compensate 
our employees is called administratively uncontrollable 
overtime. AUO recognizes that law enforcement officers and 
their operationally focused employees will need to recognize 
circumstances that require the employee to continue working 
past the end of their shift. As you can imagine, those 
circumstances arise quite frequently with our Border Patrol 
agents and other mission critical operations in the field, and 
the vast majority of AUO and other overtime is appropriately 
claimed and compensated.
    Given the importance of the DHS mission and the limited 
funds we have to accomplish it, the abuse of overtime of any 
kind is extremely troubling. Additionally, the inappropriate 
use of one type of overtime in the place of the proper one 
should be curtailed.
    I appreciate the work of the OSC in the investigations that 
took place in our components as a result of those referrals. 
Those investigations uncovered both abuse and inappropriate 
application, and DHS has taken several actions as a result.
    Yesterday, Secretary Johnson signed a memo that directed 
the heads of DHS components to suspend the use of AUO for 
certain categories of employees. As you are likely aware, at 
the request of the Office of Special Counsel, DHS has been 
conducting a comprehensive review of the use of AUO across the 
Department. That review is being led by the DHS Office of 
General Counsel (OGC). While that review is ongoing, it has 
become apparent that some AUO practices needed immediate 
attention. Additional measures may be taken as the review 
progresses, but in the interim, AUO will be suspended for the 
following categories of employees: Employees who work in 
component headquarters offices and whose duties do not meet the 
regulatory requirements for the use of AUO; employees engaged 
as full-time training instructors; and employees to whom 
internal investigators have determined that the Department is 
inappropriately providing AUO pay.
    I appreciate the leadership that Secretary Johnson and 
Deputy Secretary Mayorkas have shown on this issue in their 
first few weeks since being confirmed. I look forward to 
continue working with them on human capital policy issues at 
DHS.
    I have taken several additional actions as a result of the 
OSC disclosures. Based on my concerns, all future OSC 
complaints related to workforce issues will be provided to my 
staff, which should improve coordination and better enable us 
to identify trends that may be emerging.
    On December 6, 2013, I issued a memorandum to components 
reminding them of their responsibilities to comply with all AUO 
laws and regulations. Components were directed to provide 
greater scrutiny to the eligibility determinations of employees 
who receive AUO and to continue to address instances of 
inappropriate use or abuse.
    I instructed my staff to include the review of AUO policies 
in their required Office of Personnel Management (OPM) audits 
of component human capital policies and programs. Review of AUO 
policies is not otherwise required by OPM.
    I tasked the components with providing my office 
information regarding disciplinary actions taken as a result of 
AUO abuse. I look forward to reviewing that information when it 
is provided.
    I would like to close by thanking the Chairman for 
introducing legislation that proposes a new pay system for the 
Border Patrol that may better suit the needs of the 21st 
Century law enforcement environment. The Department is actively 
reviewing that legislation and will continue to work with you 
and your staff throughout the legislative process.
    I appreciate the chance to address this issue today and to 
answer any questions that you may have. Thank you.
    Senator Tester. Thank you, Catherine. We appreciate you 
being here today.
    Brandon Judd, your testimony.

TESTIMONY OF BRANDON JUDD,\1\ PRESIDENT, NATIONAL BORDER PATROL 
                            COUNCIL

    Mr. Judd. Chairman Tester and Ranking Member Portman, first 
off, Chairman Tester, I appreciate the invite to your State. I 
have a brother who is a Border Patrol agent out of the Malta, 
Montana, Border Patrol station, so I have been there many 
times. It is a beautiful State.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Judd appears in the Appendix on 
page 40.
---------------------------------------------------------------------------
    Senator Tester. Truly God's country. Go ahead.
    Mr. Judd. On behalf of the 16,500 rank-and-file Border 
Patrol agents whom I represent, I would like to thank you for 
having this hearing to explore reforming the administratively 
uncontrollable overtime system.
    The Special Counsel's report confirmed what the line agents 
have known for a long time. When AUO was first introduced in 
the 1970s, there were fewer than 4,000 Border Patrol agents. 
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 their shift was 
over, the agent could simply keep working. Because those hours 
were unscheduled, the extra hours were covered under AUO.
    Today, the Border Patrol has over 21,000 agents. It is a 
24-hour a day operation, and 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.
    For example, an agent's shift may be done, but the oncoming 
relief is still an hour away. After a handover 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. Those 2 hours have been 
traditionally covered under AUO, even though they are routine 
and foreseeable.
    From my perspective, a reform of the Border Patrol pay 
system to address the problem is long overdue. What worked 40 
years ago does not work for today's operational needs and 
threats. Today, 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, and are often 
extremely violent. They also have extensive intelligence and 
surveillance networks. 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.
    The real question is where do we go from here. How do we 
reform the AUO system while ensuring manpower on the border? 
Last month, Chairman Tester and Senator McCain introduced 
legislation, S. 1691, to reform AUO, and there is companion 
legislation is the House introduced by Congressman Chaffetz. On 
this point, I want to be clear. Border Patrol agents support 
this legislation. It is long overdue.
    The primary reason agents support this legislation is that 
it guarantees manpower we need in the field to accomplish our 
mission. This bill provides the equivalent of 20 percent more 
manpower, or 5,000 trained agents at the border. The 
legislation gives us the capacity we need to do our job.
    I would also like to address the cost savings that would be 
achieved by this legislation. This legislation will save the 
taxpayers over $1 billion in 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, long-term stability, and safety is worth a pay 
reduction.
    We heard last month from Deputy Chief Vitiello of the 
Office of Border Patrol that the proposed legislation gives the 
agency the flexibility to schedule agents where and when 
needed. We also heard from the Special Counsel last month about 
how the current AUO system has been abused for financial gain 
at taxpayers expense since at least 2008. We heard from DHS's 
Chief Human Resource Officer that no immediate solution is 
possible, absent legislation. And, finally, just earlier this 
month in the joint explanatory statement of the fiscal year 
(FY) 2014 omnibus appropriations bill, congressional leadership 
has directed Customs and Border Protection to work with the 
National Border Patrol Council to develop a sensible pay 
reform.
    Let me be clear. We see no sound reason why any agency or 
department would not support a bill that will curb abuse, allow 
for scheduling flexibility, increase border security, and saves 
taxpayers money. I testified a month ago that this bill gives 
the agency and our country more security and safety at our 
Nation's border while saving over $1 billion in the next 10 
years. That remains true today. We welcome any support and 
collaboration from the Department of Homeland Security and the 
Office of Customs and Border Protection. The time to take 
action is now. We owe it to the American public and taxpayers 
and to the agents at the borders.
    In conclusion, I want to thank this Committee for the 
opportunity to testify. I want to leave you with the firm 
notion that Border Patrol agents support S. 1691 and its House 
companion. The Border Patrol is overdue a system that fits 
current threats and operational needs, that is also cost 
effective and ensures manpower and agent safety.
    I look forward to any questions that you might have for me.
    Senator Tester. Thank you for your testimony. I want to 
thank all the witnesses for their testimony, and so we will go 
to the questions. I think we will put 7 minutes on the clock 
and do as many rounds as we want.
    I will start with you, Mr. Vitiello. Not everyone is 
familiar with administratively uncontrollable overtime. Could 
you further flesh out and explain in as plain of English as you 
can the current role it plays in the Border Patrol pay system.
    Mr. Vitiello. So, as stated previously, the legislation 
that controls, and the regulations that control AUO were 
developed in the late 1960s, and so what it allows for under 
that rubric is that after the end of an 8-hour schedule, an 
agent--an individual can self-deploy the additional time it 
would take to complete a compelling mission.
    Now, in these reviews, it has obviously been seen that this 
is specifically outside of the administrative process or the 
administrative work and it is more of a field-based kind of 
construct. But it does allow for agents to finish the work that 
starts within that first 8 hours.
    Senator Tester. OK. Catherine, very quickly, you talked 
about three areas--and correct me if I did not get it down 
right--three areas where AUO would not be allowed. Component 
headquarter offices, what I have written down, training 
instructors, and employees that the internal investigations say 
are not relevant. Fairly accurate, in that you are nodding your 
head. What percentage of the overall employees that were 
eligible for AUO are going to be eliminated from its use, and 
do you expect this list to expand with time? What is the short-
term and long-term goals here?
    Ms. Emerson. This is an interim measure, and you did get 
those three categories correct, for the most part. It 
approximately affects 900 employees----
    Senator Tester. OK.
    Ms. Emerson [continuing]. Take a rough guess of how many 
employees in the Department are using AUO is probably anywhere 
from 25,000 to 28,000.
    Senator Tester. OK.
    Ms. Emerson. And they are primarily in CBP.
    Senator Tester. OK. Well, maybe I will stick to the script 
here, but I guess the question I have is that as we look down 
the road, I mean, how--look, Mr. Vitiello said that the Border 
Patrol has changed. Brandon Judd said that the Border Patrol 
has changed. The question becomes, as we look forward--assuming 
that my bill does not pass, because I hope it does and we are 
going to work to get it passed, but I do not know that it is or 
it is not--how is the Department going to take care of this? 
How are they going to--this is somewhat of a measure put 
forward now that is going to probably be expanded upon later, I 
would think, potentially. What kind of metrics are you going to 
be using to determine whether it should be used or not, and 
what kind of metrics were used in this?
    Ms. Emerson. Well, we have new leadership. We have a new 
Secretary, a new Deputy Secretary who inherited this situation 
and were briefed on it when they came in, and they have taken 
it very seriously, as we see from the memo that was put out 
yesterday. This is an interim measure, and as there are a 
number of reviews that are going on, one with the Government 
Accountability Office (GAO). We have the OSC that has brought 
some cases to our attention. We have our Office of General 
Counsel that is doing a review, as well as the components are 
doing reviews, as well. So, there are a number of reviews 
underway and this number could expand as we go forward. We are 
looking at the AUO practices and procedures that are in place 
and making sure that AUO is properly being accounted for.
    Senator Tester. OK. Ms. Lerner the whistleblowers, did they 
have the ability to--did they come to anybody within DHS before 
they went to OSC?
    Ms. Emerson. I am not aware that they did. Perhaps Mr. 
Vitiello can speak to that regarding the CBP ones.
    Senator Tester. Yes. Right.
    Ms. Emerson. But we appreciate the whistleblowers----
    Senator Tester. Oh, no. I am not being critical of anybody. 
I just want to know if there is a mechanism for them to go to 
the Department first, or is their first avenue OSC, and that is 
going to be the question I ask you in a second, Carolyn. But, 
did anybody come to the leadership at the Border Patrol?
    Mr. Vitiello. I would have to refer that. I am not 
specifically aware of that, although we encourage employees to 
go to their supervisors for all manner of----
    Senator Tester. Gotcha. Carolyn.
    Ms. Lerner. I can answer that.
    Senator Tester. Sure.
    Ms. Lerner. At least for the first six, the group of six 
that we referred and talked about in our October letter----
    Senator Tester. Right.
    Ms. Lerner [continuing]. All six of them tried internally 
to complain and bring this problem to their supervisors and the 
Inspectors General (IGs) attention. They did not get a result, 
which is why they came to us.
    Senator Tester. I got you.
    Ms. Lerner. They are not required to come to us first.
    Senator Tester. I got you.
    Ms. Lerner. They can, but----
    Senator Tester. OK. So, moving forward, do you not think 
that is important, to open up the ability for people to come 
and actually encourage them so that you guys can deal with it 
up front?
    Ms. Emerson. Yes, I agree with you. In fact, they can go to 
our Office of Inspector General (OIG). They can go to the 
components' Internal Affairs. But encourage the whistleblowers 
to come forward, yes, sir.
    Senator Tester. OK. But, the point is, and I know you guys 
have been without leadership for some time, the point is, they 
did not, and when they did, according to Ms. Lerner's 
testimony, nothing happened. Is the leadership team there at 
DHS going to look at ways to facilitate better interaction with 
leadership within DHS?
    Ms. Emerson. Yes. And, in fact, the reviews that are 
ongoing are looking at the whistleblower situation, as well.
    Senator Tester. OK.
    Ms. Emerson. In fact, I put out an information request to 
the components in looking at any disciplinary actions that have 
occurred for abuse of AUO, and also the whistleblowers, any 
retaliation----
    Senator Tester. Yes. I mean, I am going to get into this 
later, but one of the things that personally drives me crazy as 
a policymaker is we are under tight financial restrictions 
here. Both Senator Portman and myself understand the importance 
of border security. And when we are allocating money and it is 
being misused and we are looking at potentially pulling people 
off the Northern border, which may be warranted, may be not--I 
am not saying that--but we are looking at doing some things 
that reduce manpower in the process and this is going on, it 
drives me crazy. So, hopefully, you do have new leadership in 
Homeland and I think that is going to help a lot.
    Ms. Lerner, you had something you wanted to say, and then I 
will kick it over to Senator Portman.
    Ms. Lerner. Yes. Just, we talk about one example where a 
whistleblower went to her supervisor and said, ``I want to be 
decertified. I do not want to be certified to take AUO 
anymore.'' And the supervisor said, ``No, you have to keep 
doing it, because if you stop, it is going to affect all of 
us.'' It is against their own financial self-interest for them 
to hold people accountable as supervisors because they are 
getting it, as well.
    I wanted to mention one other thing, which is that these 
are terrific interim steps. We are really pleased at some 
progress.
    Senator Tester. Yes.
    Ms. Lerner. But, the problem is, there still has not been a 
directive issued to stop it. This is not a difficult issue. The 
law is really easy. You do not qualify for AUO unless your job 
specifically requires it, if you have substantial unpredictable 
work, if it is irregular, or if there is a substantial law 
enforcement need. This is not rocket science. It should not be 
that difficult to issue a directive saying that folks who do 
not meet that criteria should not be taking AUO.
    Senator Tester. I agree with you, and I will tell you that 
the only excuse here that I can see is the fact that we have 
not been able, until just recently, to confirm their 
leadership. I think that you can be assured that we are going 
to be watching this issue very closely and holding the 
leadership within DHS very much accountable.
    With that, Senator Portman.
    Senator Portman. Thanks, Chairman. I appreciate it.
    And thanks for the testimony today and for your willingness 
to not just come here today and testify, but help us get to the 
bottom of this and provide the information to deal with the 
issue administratively in your Department.
    It sounds like there are a couple of instances where it has 
been abused. One is based on what Mr. Judd and Chief Vitiello 
said. You have a shift change and there is no better tool right 
now to cover that shift change because this goes back to the 
1960s. It is antiquated. It is being used when you should have 
a better tool.
    The other seems to be an even more egregious case, where 
employees are just falsifying time cards, and this is often in 
a position that really does not need AUO because some of these 
positions, as the interim measures are saying, really are not 
appropriate for it.
    Is that more or less accurate? Chief, do you think you can 
kind of put that into those two categories?
    Mr. Vitiello. That is a fair description.
    Senator Portman. One of the things that troubles me as I 
look at this is that we have these allegations that have come 
forward related to DHS as a group and that it seems like CBP 
was kind of put in a position to deal with it, and specifically 
Office of Internal Affairs. And, Ms. Emerson and Chief 
Vitiello, in Ms. Lerner's testimony, she says that within 
Customs and Border Protection's Office of Internal Affairs, a 
whistleblower alleges that approximately 275 CBP employees 
improperly claim AUO, up to 2 hours a day, every day, with the 
full knowledge and approval of the Office of Internal Affairs 
leadership. I just want to confirm with both of you that this 
is the same office that is being charged with investigating the 
claims of AUO abuse in other CBP offices. Is that accurate?
    Mr. Vitiello. So, it is true that a couple of parts of the 
Internal Affairs Office at CBP are compensated in overtime 
using AUO. That is correct.
    Ms. Emerson. Can I just add that the Office of Inspector 
General is now involved in investigating those AUO complaints.
    Senator Portman. Yes. But, I guess my question is, why 
would it have gone to the Office of Internal Affairs if there 
was indication that this was an office that was using AUO 
itself inappropriately? Anyway, it just does not seem to make 
sense to have delegated it to that office.
    Finally, Ms. Lerner's office, from its communication date, 
has indicated that AUO abuse has the possibility of being a 
Departmentwide problem, so my question is, why was it just 
focused on CBP, not DHS as a group? And maybe, Ms. Lerner, you 
could tell us, do you know if it is common for the Inspector 
General to refer cases down to a particular component that seem 
to have an impact across DHS, and if so, why?
    Ms. Lerner. I am not exactly sure of the correct answer to 
that, and probably Ms. Emerson would know better than I would. 
I will say that there is a lot of emphasis on CBP, but this is 
a problem throughout DHS.
    Senator Portman. Yes.
    Ms. Lerner. And it is not just, actually, Customs and 
Border Patrol officers, or Border Protection officers, that are 
affected, as you note. I mean, these are office workers. These 
are trainers. These are canine workers. These are CrossFit 
instructors. It is a problem that extends throughout the 
Department.
    Senator Portman. Ms. Emerson.
    Ms. Emerson. Until recently, the majority of the cases were 
CBP. So, it was not until recently where we had ICE and the 
United States Citizenship and Immigration Services (USCIS) 
added to that. So, the practice within DHS is when the OSC 
referral letters came in, that was handled as a legal matter. 
So, it was referred to OIG. They had the right to refuse it. 
And then it went over to the components, and that is where it 
went to the Internal Affairs Office for investigation. It did 
not come to my office. I did not find out about the OSC 
referral letters until November, early November 2013. So, now 
there is a process in place where those letters come to me 
right when they come into the Office of General Counsel.
    Senator Portman. OK. Yes, that seems to make a lot more 
sense, and particularly when it is an agency-wide allegation 
and specifically not to send it to one of the specific offices 
that was at least alleged by whistleblowers to have been 
abusing itself.
    So, the October 31 report from the Office of Special 
Counsel stated that these abuses were taking place in 
assignments where it is really inconceivable that the employees 
would be conducting work that makes them eligible, based on the 
criteria. And so, I guess, again, Ms. Emerson and Chief, what 
is the process for selecting which employees are eligible for 
AUO? I know the interim measures may change this, but what is 
the process for selecting employees?
    Mr. Vitiello. So, the bulk of the individuals involved are 
in the Border Patrol, and so when they come to a headquarters 
assignment, they are coming from the field. All of my staff 
that is in uniform were people who previously served in the 
field in all manner of what the Border Patrol does in the 
field, and so you spoke briefly about the culture and how this 
is kind of a systemic problem. Now, looking at it going 
backward, we incorrectly interpreted the eligibility. There was 
a scenario in which we used AUO not as it is in the reg as a 
discrete resource, but, in fact, used it to get whatever the 
work in front of particular agents were. And so, again, the 
actions that the Department is taking today will right that 
problem interimly and then we will learn more about it as we 
have over the last year.
    Senator Portman. So, if you have a largely administrative 
job, you think that after these interim measures are expired, 
there will be something in place that will make that clear, 
that that person would not be qualified----
    Mr. Vitiello. Agree. The ongoing review at the Department 
with the other agencies, what we have learned from the OSC 
complaints, our own review at CBP, will help discriminate the 
work in a way that is most beneficial. I think, again, I have 
29 years of doing this and I have learned more about AUO in the 
last year than I did in my previous 28. And so I think the 
actions that are taken are the appropriate ones. We have to 
figure out what the impacts of them are and then move out and 
learn in a way that puts us in a place where supervisors, 
managers, and leaders have the right information to put the 
right kind of compensation against the right kind of work.
    Senator Portman. And employees are going to change jobs. 
They are going to rotate through. So, it should not be as to 
the employee. It should be as to the job function, right?
    Mr. Vitiello. Correct.
    Senator Portman. OK. Well, listen, again, we appreciate the 
fact that there is work being done. The interim steps are 
starting to be taken. I think we need to learn, though, from 
what happened. It is, as the Chairman said, critical to get 
more people on the border, and we are all looking at tight 
budgets. Certainly, the appropriations process going on right 
now is difficult with regard to your Department, particularly, 
but generally for DHS, and we have to be sure that the money is 
being spent in the most efficient way possible.
    So, we appreciate your being on top of it. We are going to 
stay on top of it and we appreciate your getting back to us as 
you begin to work through this. And the interim measures are 
just that, just interim, so I understand you have an ongoing 
process, Ms. Emerson, through your Special Counsel Office 
within the Department. The DHS Office of General Counsel is 
conducting an internal review, is that accurate?
    Ms. Emerson. That is correct.
    Senator Portman. And when is that likely to be completed 
and when do you expect a report?
    Ms. Emerson. I have asked that question myself and have not 
gotten an answer. I know it is a lot of work. There is also a 
couple other reviews going on that I mentioned, GAO and the 
OIG. But this was an interim measure that the Secretary felt 
needed to be taken right away, and as it goes on, we may be 
looking at more measures coming forward.
    Senator Portman. Does the internal review so far 
corroborate what the OSC found?
    Ms. Emerson. Yes.
    Senator Portman. OK. Thank you, Mr. Chairman.
    Senator Tester. Thank you, Senator Portman.
    I was just sitting here listening while you were responding 
to Senator Portman's questions, and I have to tell you, with a 
different two people sitting up here, they could be beating you 
guys to death and making themselves look pretty good because 
this looks pretty bad, and here is why.
    In 2008, the Department was made aware of this, and we are 
finding out things now like the AUO eligibility was not 
determined, was not defined the right way, and I heard the AUO 
eligibility coming from Ms. Lerner's mouth and it does not look 
like it is that complicated, that it is pretty tough to define 
it any other way than what it is, and I can have her list them 
again. I did not write them down.
    And then your position, Catherine--and I said when I 
introduced you, your plate is very full--by your own admission, 
you were not aware of this stuff until November 2013?
    Ms. Emerson. I had an offsite with my H.R. Directors the 
end of April, and that is when a couple of them were talking 
about some inconsistencies in the way AUO was applied.
    Senator Tester. Gotcha.
    Ms. Emerson. But, I never did know, and neither did my 
staff know----
    Senator Tester. Right. So----
    Ms. Emerson [continuing]. About this OSC complaint.
    Senator Tester. So, the question becomes for me, and I 
think for Senator Portman and anybody else who would be here 
off this Committee, what happened? Where is the breakdown? I 
mean, a red flag was raised back in 2008 and, basically, folks 
ignored it, or there were not the communication channels to 
bring it up the ladder, or tell me what happened, and then tell 
me if it is different today and why.
    Ms. Emerson. It was seen as a legal matter. So, the 
complaints went from OSC to the Office of General Counsel and 
the Office of General Counsel sent it to OIG to see if they 
wanted to take it, and they sent it to the component Internal 
Affairs to investigate, and that is how it went. It never came 
to the Office of the CHCO. So, it was seen as a component 
matter. So, CBP received the majority of those referral letters 
from OSC.
    Senator Tester. OK. So, what is different today? I mean, 
what is different today that this same thing is not going to 
happen again after Senator Portman and I start thinking about 
doing other things?
    Ms. Emerson. Well, as you mentioned, we have new leadership 
and they are extremely concerned about this. They inherited it. 
They are very concerned. They have only been in there for, 
what, approximately 30 days, and they have already taken 
action.
    The other thing is I have found out about the OSC 
complaints in early November and I have reached out to the 
Office of General Counsel and told them that I need to have 
those OSC complaints when they deal with personnel matters, 
specifically AUO, so that I can watch for trends like this.
    So, we have also got the additional reviews going on, GAO, 
IG, component investigations going on. So, there are a lot of 
reviews right now that are bringing us some information 
regarding AUO practices and procedures throughout the 
Department. Additionally, when my office goes and does audits 
of the human capital policies and procedures, I put this on the 
list. It is not something that OPM requires, but I am requiring 
it throughout the Department, that we will review the policies 
and the procedures of each component on AUO.
    Senator Tester. OK. Ms. Lerner, did you put forth 
recommendations to the Department when you did your research? 
Did you put forth recommendations to the Department about what 
has transpired and potentially--and maybe this is not in your 
purview, I am just asking--any suggestions on how you fix the 
problem?
    Ms. Lerner. That is actually not----
    Senator Tester. Put your mic on, please.
    Ms. Lerner. Our statutory authority is pretty much to make 
a substantial likelihood determination, refer it to the agency 
for their investigation, and then review their report----
    Senator Tester. And who did you refer it to? Who did you 
refer your investigative report to?
    Ms. Lerner. Well, I sent it to the head of the Department, 
so I would send it to----
    Senator Tester. OK.
    Ms. Lerner [continuing]. The first set went to then-
Secretary Napolitano.
    Senator Tester. Gotcha.
    Ms. Lerner. And then we get their report back. We review it 
for reasonableness. The whistleblower reviews it. We often ask, 
as we did in one of these cases, for the Department to look at 
it again, because we were not satisfied with how they reported 
back to us.
    Senator Tester. OK.
    Ms. Lerner. They then came back, actually, I think, 
yesterday on one of these and said, yes, in fact, this was 
substantiated. All four of the reports that we have gotten back 
so far, and there are 12 altogether, the four that we have 
gotten back have all substantiated the allegations.
    Senator Tester. OK.
    Ms. Lerner. Once we get those reports back, our authority 
is pretty much just to then report to you all as the oversight 
Committee----
    Senator Tester. Right. Yes.
    Ms. Lerner [continuing]. And to the President. We can ask 
for the Department to get back to us----
    Senator Tester. Yes.
    Ms. Lerner [continuing]. On remedial efforts that they say 
that they are going to take, and we are going to do that now. 
We are going to ask that they report back to us in probably 3 
to 6 months----
    Senator Tester. Sure.
    Ms. Lerner [continuing]. About what actions they have 
taken.
    Senator Tester. OK. Good. So, it is up to them to fix the 
problem. You point out the problem, verify it, and say fix it. 
OK.
    Ms. Lerner. Yes.
    Senator Tester. Thanks.
    Ms. Lerner. One of the legislative fixes we have been 
talking about with your staff is to make it an affirmative 
obligation----
    Senator Tester. Yes.
    Ms. Lerner [continuing]. For the agency to report back on 
remedial actions that they have taken.
    Senator Tester. I got you.
    Mr. Vitiello, are there mechanisms currently in place, 
because it is the Border Patrol Department where most of this 
is coming from--are there mechanisms currently in place to 
monitor AUO within the agency today?
    Mr. Vitiello. Yes. So, to go back a little bit on your 
question, since the 2008, the agency, either through CBP 
corporate or from the Office of Border Patrol, the Chief's 
office, we did issue additional guidance. We pointed people to 
the existing regulations. We tried to tighten up the office. 
The Human Resources Office put together a training package that 
we deployed to the field. Unfortunately, we still continue to 
suffer from a lack of being able to execute on those things in 
the most appropriate way.
    Senator Tester. My guess is, because it is not being 
checked on. So, are there mechanisms today----
    Mr. Vitiello. Yes, so----
    Senator Tester [continuing]. In which you can check and 
make sure that the orders that you put down are followed?
    Mr. Vitiello. Yes. So, there has been, we are using it 
differently now--the actions that went into place today, we 
will be able to look real-time how the hours are being claimed. 
In fact, each pay period when employees submit their time is an 
opportunity for a supervisor to review, and I think----
    Senator Tester. What if it is the supervisor that is doing 
it?
    Mr. Vitiello. Yes, so that is part of the problem. 
Systemically, we have used this--again, we have not used AUO--
we did not treat it in the Border Patrol for a very long time, 
until very recently, as a discrete resource, did not look at it 
as overtime, sort of looked at it as part of how we got the job 
done, regardless of what the work was. And so that is a foul in 
the process and the reg as it relates to administrative duties 
and things that happen at the training academy. And so those 
were where our biggest challenges are.
    But, also, the job has changed. There are several things 
that agents do these days that were not contemplated in the 
1960s when this reg was issued, and so--intelligence reports, 
analyzing things and getting the next shift more prepared for 
their deployment.
    We are going to use the tools that we have. We obviously 
have leadership and instruction from the Department and at CBP 
to fix immediately, based on the interim findings, and then the 
review of the ongoing cases, and then the complete review at 
the Department will help us do this in a much more structured 
way with the verification that you are talking about.
    Senator Tester. Are you reasonably confident today that the 
verification methods that are in place within your office are 
adequate and appropriate at this point in time?
    Mr. Vitiello. I think the tools are there. I would prefer 
that we had AUO in and of its nature is self-deployable, so I 
think we are still going to have an ongoing challenge with how 
it is looked at and how it is discussed. But, obviously, given 
these actions that we are going to take and how we are learning 
from these reviews, we are going to get much better at it.
    Senator Tester. OK. Same question for you, Catherine. 
Within the Department itself, DHS, do you have the tools by 
which to monitor and do you think they are adequate?
    Ms. Emerson. Yes. I would like to point out, in the 
Secretary's memo that he put out yesterday----
    Senator Tester. Yes.
    Ms. Emerson [continuing]. He specifically said in the last 
paragraph, ``Nothing in this memorandum limits a component head 
from otherwise restricting or controlling the use of AUO where 
he or she discovers other circumstances involving misuse of 
AUO.'' So, this is from our Secretary saying that it is on the 
component heads to be responsible for how that AUO is 
administered.
    Senator Tester. Good.
    Ms. Emerson. I said there are a number of reviews that are 
ongoing. I know that there have been in CBP, there is a 
position-by-position review going on----
    Senator Tester. Yes.
    Ms. Emerson [continuing]. On who should be given AUO. I 
know ICE has done the same thing.
    Senator Tester. Yes.
    Ms. Emerson. They are doing an audit.
    Senator Tester. Right.
    Ms. Emerson. USCIS has temporarily suspended the use of AUO 
in their component, as has the Management Directorate.
    Senator Tester. OK. Thank you. Senator Portman.
    Senator Portman. Thank you, Mr. Chairman.
    I think what we learned from the OSC report is pretty 
clear, that there is, as I said earlier, a cultural problem 
here. In other words, it is embedded in the culture, and not 
just of Border Patrol and Protection but also at DHS. And so I 
guess the question would be, what are you doing specifically 
about that? Ms. Emerson, you are a human capital expert. What 
specific steps should be taken to change the culture that this 
abuse of this overtime is acceptable?
    Ms. Emerson. Honestly, I think the memo that was put out by 
our Secretary yesterday is a good effort in the very beginning. 
It is very serious. He is taking this matter very seriously. He 
is acting quickly, only been on the job for approximately 30 
days and already coming out strongly regarding AUO 
administration.
    Also, my office, as said, I put in measures that when we go 
and do our human capital audits in the components, we will be 
looking at AUO processes and procedures. There are a number of 
reviews that are going to be coming up, finalizing, and we will 
look at that to see where we still have issues.
    Senator Portman. I think one thing that maybe we have not 
touched on enough today is the way you change the culture is, 
in part, through accountability, right. I mean, you hold people 
responsible. And if folks think they are not going to be held 
responsible, it may be difficult to change that culture.
    So, I understand from information provided to our 
Subcommittee that DHS reported that 84 cases of AUO abuse were 
reported in 2012 and 2013. As of December 2013, of those 84 
cases, 43 are still being reviewed, 33 were closed with no 
action, no findings, one was pending with DHS Inspector 
General, a total of 7 of the 84 cases, investigators were able 
to substantiate the allegation of AUO abuse. I understand that 
in these seven cases, the employees were only given oral or 
written counseling as their disciplinary action.
    One, is that true? Is that your understanding? And, I guess 
to Ms. Emerson or to you, Chief, can you describe the offenses 
in these seven cases? Were these employees inappropriately 
directed by their management team to use this overtime 
inappropriately, or were they found to be logging hours when 
they were not doing work, or, as we have heard in some of these 
allegations, maybe not even present? What do you know about the 
seven cases?
    Mr. Vitiello. I do not have specifics on where the 
counseling or the disciplinary actions were taken. I can tell 
you that, again, those cases were referred because they were, 
in fact, determined to be misconduct, and there is a strict 
process for that, where employees are given due process. The 
agency reviews the findings and then each case is looked at 
based on what were the supervisor's responsibilities and how 
did they relate to the employee, or was this something that the 
employee took on by themselves. You look at the totality of 
those things to decide what the final outcomes are.
    Senator Portman. Eighty-four cases, seven substantiated, 
what do you know----
    Ms. Emerson. It is my understanding that those are 
primarily CBP cases. Those disciplinary actions, when 
allegations of employee misconduct, are handled by the 
components. However, in the General Counsel's review that is 
ongoing, I have recently put out a request for information 
regarding the discipline of employees, so I will be getting 
that information in the near future.
    Senator Portman. Any supervisors subject to any kind of 
punishment for condoning or knowingly approving of these----
    Mr. Vitiello. I do not have specifics, but anywhere where 
it is determined that employees, whether they are supervisors 
or not, engage in misconduct in this area, then it is addressed 
through the disciplinary process.
    Senator Portman. Well, we would like some more information 
on that. I mean, you guys have both been in the field. One way 
in which people learn about a culture shift is they see there 
is some responsibility and accountability that goes with it, 
and if we are not following up on these disciplinary actions--
84 cases, 43 still being reviewed, 33 closed with no action or 
no findings, seven were found to have abused overtime, and what 
we understand is that those employees were only given oral or 
written counseling as disciplinary action--so, I mean, I do not 
know what kind of accountability there is in that kind of a 
system. So, if you could get back to us as to what has happened 
with those cases, that would be really helpful.
    And specifically, I am not talking about the seven 
managers, as you say, Chief. If they are managers, they are 
subject to the same discipline. I am talking about, in those 
seven cases, were their managers disciplined if they were found 
to have condoned it----
    Mr. Vitiello. Let me just----
    Senator Portman [continuing]. Because I would suspect that 
is, from what we know, part of what has been going on.
    And, also, if you could tell us what led to the 33 cases 
being closed without action. I mean, I assume that is because 
the allegations were not substantiated, but we would like to 
know that. And, then, what is the status of the 43 pending 
cases as of December. These were cases from 2012 and 2013.
    Mr. Vitiello. We will get back to you with that.
    Senator Portman. Thanks, Chief.
    Thanks, Chairman.
    Senator Tester. Yes. Thank you, Senator Portman.
    I would just kind of want to add on that, because I think 
it is important, I think it was testimony you gave earlier, and 
I can go back and check the record--it does not matter, we are 
not--but, you had talked about the definition of AUO that was 
interpreted wrong. And I would say, if that is correct, it was 
wrongly interpreted on how it should be used, that may be where 
the problem started right there.
    Mr. Vitiello. Yes. I mean, there is no excuse for, knowing 
what we know now, not to take the actions that have been taken 
or looking at the findings from OSC and saying that it does not 
mean what it means, because it is very serious and we take it 
seriously.
    Senator Tester. Yes.
    Mr. Vitiello. Like I said, we have been well aware that AUO 
has been a problem for the last couple of years----
    Senator Tester. Yes.
    Mr. Vitiello [continuing]. But throughout my career, again, 
it was not treated as something separate and apart, like our 
other overtime systems. It was treated not as a discrete 
resource but as sort of a tool that is used to get all work 
done.
    Senator Tester. Give me the definition really quickly 
again, Ms. Lerner.
    Ms. Lerner. Sure. By regulation, AUO 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 purpose.
    Senator Tester. This would just be my opinion, and I am a 
dirt farmer from Montana, OK--this would just be my opinion, 
but unless that administrative personnel is directly connected 
to that agent in the field, that he needs information, I cannot 
see how any administrative personnel would be eligible for 
this. That is my opinion. If I am wrong on that, let me know 
why I am wrong on that as we move forth and try to solve this 
problem.
    Mr. Vitiello. No, I agree with what you said.
    Senator Tester. OK.
    Mr. Vitiello. I am just saying that when we talked earlier 
about the culture, incorrectly used----
    Senator Tester. Yes.
    Mr. Vitiello [continuing]. The actions going forward are 
the right actions----
    Senator Tester. Right.
    Mr. Vitiello [continuing]. But, previously, we did not have 
that same interpretation.
    Senator Tester. I got you.
    Mr. Vitiello. We did not look at it the way we are looking 
at it now----
    Senator Tester. Gotcha.
    Mr. Vitiello [continuing]. In the more appropriate----
    Senator Tester. I guess the point I am trying to make is 
that the people who defined it as being incorrect are the ones 
at fault here, not the people who are using it----
    Mr. Vitiello. I agree with you.
    Senator Tester [continuing]. Because if I am told as an 
administrative person that I can utilize it, that it is OK by 
my boss, then I will use it.
    Mr. Vitiello. That is correct. I think that is part of the 
systematic challenge that we had previously and now are coming 
to grips with.
    Senator Tester. OK. That is good.
    I want to talk a little bit to you again, Mr. Vitiello, CBP 
conducted a comprehensive audit last spring to get a better 
understanding of the full extent of the costs of AUO use 
throughout CBP. I would assume that is both costs that have 
been used by the agents in the field when necessary and some of 
the administrative costs we have been talking about before. 
What were the findings of the audit?
    Mr. Vitiello. So, we have a review, there are 158 positions 
within CBP, positions and titles----
    Senator Tester. Sure.
    Mr. Vitiello [continuing]. That are being reviewed. We 
expect that to be completed sometime in February.
    Senator Tester. OK.
    Mr. Vitiello. And that will give us a better handle on if 
position descriptions are correct, and then what is the 
appropriate work schedule and overtime compensation.
    Senator Tester. I assume that audit will be public 
information?
    Mr. Vitiello. I am not sure. I would have to----
    Senator Tester. We would like to get the results of that 
audit, if you could, to this Committee when appropriate, OK.
    Mr. Vitiello. All right.
    Senator Tester. So that we will know what kind of 
recommendations came down from those folks. I think if we all 
work together, we get this problem solved even quicker, so----
    Do you know whether USCIS or ICE is conducting similar 
audits? This is for you, Catherine.
    Ms. Emerson. I know ICE is conducting an audit, very 
similar, position by position. USCIS has suspended the use of 
their AUO.
    Senator Tester. Oh, OK. All right.
    Ms. Emerson. And they did that before the memo came out.
    Senator Tester. OK. Sounds good.
    Mr. Judd, you have gotten off easy here today so far. In 
your testimony, you said that you thought that AUO was--there 
was a role for it 40, 50 years ago, not so much--it has kind of 
outlived its--I do not want to put words in your mouth, but 
maybe outlived its usefulness today. Could you expand on that a 
little bit? You talked about three shifts, basically three 8-
hour shifts that rolled over. Could you talk about if there is 
a role for AUO today and what that role should be.
    Mr. Judd. There is a role for AUO. I think that what we 
have to do is we have to go back and look at how this problem 
started. If you go back and you look at the hiring memorandum 
that went out to prospective employees, one of the things that 
it said was that you will receive 25 percent AUO. When I came 
in the Border Patrol approximately 16\1/2\ years ago, I was 
told in the job announcement that I would receive 25 percent 
AUO. It was a recruitment tool that was used, because when we 
came in the Border Patrol, our entry salaries were not 
commensurate to other law enforcement, whether it be local, 
State, or Federal law enforcement.
    And so that is where the service used AUO as a recruiting 
tool to get personnel into the Border Patrol, and it is still 
applicable today. We still use AUO correctly in the field. We 
will continue to use AUO correctly in the field as long as we 
are allowed to have the overtime system.
    Rio Grande Valley, for instance, is the hotbed right now 
for illegal immigration and the agents out there are chasing 
drug smugglers, alien smugglers in the country well after their 
8-hour shift. And so AUO is absolutely applicable, and it is 
applicable in all parts of the Border Patrol where we are 
chasing illegal aliens or illegal drug smugglers. The problem 
is we need to look at a more modernized system.
    Senator Tester. Let me ask you this, since you bring up 
another issue. You entered 16\1/2\ years ago. If my math is 
correct, it was about 1998, maybe a little bit before.
    Mr. Judd. Nineteen-ninety-seven.
    Senator Tester. Nineteen-ninety-seven. You said wages were 
not commensurate then with other sectors of law enforcement. 
Are they commensurate now without AUO?
    Mr. Judd. At the entry level, no, they are not.
    Senator Tester. They are----
    Mr. Judd. The journeyman level is, but the entry level is 
not.
    Senator Tester. Is how much lower, percentage-wise?
    Mr. Judd. We recently----
    Senator Tester. Or dollar. I do not care.
    Mr. Judd. It depends on who you are comparing us against, 
but when we looked at other law enforcement agencies that 
people--that are desirable, and that is city law enforcement, 
city police departments, or other Federal law enforcement, 
generally speaking, we are about $10,000 less than what other 
agencies hire their employees at.
    Senator Tester. OK. Well, that is another issue for another 
hearing.
    I think we will probably wrap this up. Look, the Department 
has a new Director. It has a new second-in-command. It has a 
new IG. I can tell you that we want our border secure and we 
want our people to be able to do the job that they need to do 
when they are in the field. I can also tell you that, quite 
frankly, this kind of abuse of a program needs to stop, 
especially--it needs to stop any time. Even if we were flush 
with dough, it would need to stop, OK, because it is just not 
right.
    I want to thank you all for being here today, and I mean 
that. Oftentimes, these hearings are not particularly pleasant, 
but the truth is, I think that you offered up information that 
we all could use and did it in a way that shows your commitment 
to the Department.
    We have covered some ground. I think we need to work 
together to get the overtime issue solved at DHS, to ensure the 
taxpayer dollars are spent appropriately. I think it will help 
your program. It will help all of government, quite frankly, if 
we are able to do this. I look forward to working with you 
folks, the witnesses here today, to monitor implementation and 
the impact of the Secretary's recent directive.
    Senator Portman and I were the only two here today, but I 
can guarantee you, there is not a person on this Subcommittee 
and on this Committee as a whole that is not concerned about 
this. I can guarantee you that. And so I think that if we can 
work on constructive measures to fix the problem--I think we 
know what the problem is--I think we all can win from this.
    This hearing record will remain open for 15 days for any 
additional comments or questions.
    And with that, once again, thank you all for being here, 
and this hearing is adjourned.
    Whereupon, at 3:45 p.m., the Subcommittee was adjourned.]



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