[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
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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
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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
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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.
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\1\ The prepared statement of Ms. Lerner appears in the Appendix on
page 28.
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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.
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\1\ The prepared statement of Mr. Vitiello appears in the Appendix
on page 37.
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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.
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\1\ The prepared statement of Ms. Emerson appears in the Appendix
on page 37.
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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.
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\1\ The prepared statement of Mr. Judd appears in the Appendix on
page 40.
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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.]
A P P E N D I X
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