[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ABUSE OF OVERTIME AT DHS: PADDING PAYCHECKS AND PENSIONS AT TAXPAYER
EXPENSE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 20, 2013
__________
Serial No. 113-106
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
______
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia TONY CARDENAS, California
THOMAS MASSIE, Kentucky STEVEN A. HORSFORD, Nevada
DOUG COLLINS, Georgia MICHELLE LUJAN GRISHAM, New Mexico
MARK MEADOWS, North Carolina Vacancy
KERRY L. BENTIVOLIO, Michigan
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on National Security
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida JOHN F. TIERNEY, Massachusetts,
JOHN J. DUNCAN, JR., Tennessee Ranking Minority Member
JUSTIN AMASH, Michigan CAROLYN B. MALONEY, New York
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
TREY GOWDY, South Carolina JACKIE SPEIER, California
CYNTHIA M. LUMMIS, Wyoming PETER WELCH, Vermont
ROB WOODALL, Georgia MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan
C O N T E N T S
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Page
Hearing held on November 20, 2013................................ 1
WITNESSES
Mr. John Florence, Branch Chief, Use of Force Policy Division,
Field Operations Academy, U.S. Customs and Border Protection
Oral Statement............................................... 7
Written Statement............................................ 10
The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of
Special Counsel
Oral Statement............................................... 14
Written Statement............................................ 16
Ms. Catherine V. Emerson, Chief Human Capital Officer, U.S.
Department of Homeland Security
Oral Statement............................................... 23
Written Statement............................................ 25
Mr. Ronald Vitiello, Deputy Chief, Office of Border Patrol, U.S.
Customs and Border Protection
Oral Statement............................................... 29
Mr. Brandon Judd, President, National Border Patrol Council,
American Federation of Government Employees
Oral Statement............................................... 30
Written Statement............................................ 33
APPENDIX
Opening Statement of Chairman Jason Chaffetz..................... 64
Opening Statement of Ranking Member John Tierney................. 66
Responses to questions from Brandon Judd, National Border Patrol
Council, from Rep. Maloney for the record...................... 68
Border Patrol Union Calls Reformed Pay Structure for Agents in
Congressional Testimony........................................ 84
Washington Post Article: Homeland Security workers routinely
boost pay with unearned overtime, report says, By Emily Wax-
Thibodeaux, Published: Oct 31.................................. 85
ABUSE OF OVERTIME AT DHS: PADDING PAYCHECKS AND PENSIONS AT TAXPAYER
EXPENSE
----------
Wednesday, November 20, 2013
House of Representatives,
Subcommittee on National Security,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 10:05 a.m., in
Room 2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the subcommittee] presiding.
Present: Representatives Chaffetz, Lummis, Mica, Amash,
Gowdy, Woodall, Bentivolio, Tierney, Maloney, Speier, Kelly,
Welch, and Lujan Grisham.
Staff Present: Ali Ahmad, Senior Communications Advisor;
Will L. Boyington, Press Assistant; Molly Boyl, Deputy General
Counsel and Parliamentarian; David Brewer, Senior Counsel; John
Cuaderes, Deputy Staff Director; Linda Good, Chief Clerk;
Jennifer Hemingway, Deputy Policy Director; Mark D. Marin,
Deputy Staff Director for Oversight; James Robertson, Senior
Professional Staff Member; Laura L. Rush, Deputy Chief Clerk;
Sarah Vance, Assistant Clerk; Jeff Wease, Chief Information
Officer; Sang H. Yi, Professional Staff Member; Jaron Bourke,
Minority Director of Administration; Lena Chang, Minority
Counsel; Devon Hill, Minority Research Assistant; Peter Kenny,
Minority Counsel; Julia Krieger, Minority New Media Press
Secretary; and Mark Stephenson, Minority Director of
Legislation.
Mr. Chaffetz. The committee will come to order. I would
like to begin this hearing by stating the Oversight and
Government Reform mission statement. We exist to secure two
fundament principles. First, Americans have a right to know
that the money Washington takes from them is well spent. And
second, Americans deserve an efficient, effective government
that works for them. Our duty on the Oversight and Government
Reform Committee is to protect these rights.
Our solemn responsibility is to hold government accountable
to taxpayers because taxpayers have a right to know what they
get from their government. We will work tirelessly in
partnership with citizen watchdogs to deliver the facts to the
American people and bring genuine reform to the Federal
bureaucracy. This is the mission of the Oversight and
Government Reform Committee.
I appreciate everybody being here to today's hearing. We
have four people who are here in person that are going to
testify. I appreciate you being here. We do have one gentleman,
Mr. John Florence, who is in southern Georgia, and by mutual
agreement between the majority and the minority he will be
giving his opening statement and testifying via video.
We will do the questioning of Mr. Florence before we get to
the questioning of the panel that's here in person in
Washington, D.C. At the conclusion of his testimony we will
question him, we will dismiss him, we will thank him for his
participation, and then we will focus on the four people that
are here today.
There is a few seconds delay, and so some patience and
understanding that he won't be able to hear us and we won't be
able to hear his response for a few seconds given the
technology, but I think this is the appropriate way to go and I
appreciate the indulgence.
First, I would like to give my statement and then we will
allow the minority to give their statement.
It has been brought to light that there are some serious
challenges and problems with the use of overtime, often called
Administratively Uncontrollable Overtime, or AUO. We are going
to look today at the desk jockeys who milk the system and the
public trust and steal from Americans by abusing the system. We
are also going to try to give more consistency and look at
those that are working hard on the border and doing the job
that Americans deserve and need, and the good work that they
do, and how we compensate them as well.
Our hearing examines the recent Office of Special Council
letter to the President which described the pervasive misuse of
Administratively Uncontrollable Overtime, AUO, by employees at
the Department of Homeland Security. Special Counsel Carolyn
Lerner found abuse of this form of overtime paid to be,
``profound and entrenched,'' problem at the Department of
Homeland Security, characterizing the practice as, ``a gross
waste of scares government funds.'' She will testify that this
is not an isolated occurrence, but a persistent pattern of
costing Americans what could be tens of millions of dollars
every year, and this is just the Department of Homeland
Security.
By definition, Administratively Uncontrollable Overtime is
a form of overtime pay used to compensate employees who occupy
positions requiring substantial amounts of irregular
unscheduled work. AUO ranges from sometimes 10 to 25 percent of
a worker's base pay, and this compensation goes towards their
pension. So not only if they were abusing it would they be
stealing from the American people at the time that it occurred,
but they will be compensated for years, if not decades into the
future by continuing to reap the benefits of that as a
calculation for their pension.
Despite a 2008 investigation by the Office of Special
Counsel and the subsequent promise of the Department of
Homeland Security to stop the abuse, CBP failed to implement an
agency-wide directive to better manage the overtime policy.
Instead, employees were shown a video explaining the rules of
the AUO. What is intolerable is the fact that this was
highlighted as a problem in 2008. It was pointed out, almost
the exact same thing, and yet it still continues today. In
fact, it seems to have grown and spread.
Allegations of abuse have come from across the Department,
including at CBP's headquarters in Washington, D.C. The Office
of Special Counsel's ongoing review of information disclosed by
whistleblowers at just six of the Department of Homeland
Security offices found nearly $9 million wasted annually.
Again, this is just a snapshot of six offices. The Office of
Special Counsel substantiated disclosures made by DHS employees
that Special Counsel Lerner will elaborate on here today.
Also, equally disturbing are the five additional
whistleblower allegations described in the OSC's letter to the
President, including the disclosure by one of today's
witnesses, Mr. John Florence. We appreciate his participation
and willingness to step up and do the brave thing.
It is inexplicable that the Department of Homeland Security
would allow its employees to regularly abuse the AUO. Despite
claiming in its budget that CBP is, ``constantly reviewing the
use of all overtime hours and conducting the operations and
activities by all employees performed in the field and at the
headquarters level.'' That is not true. That is not true. And
we are going to explore why Homeland Security thinks that they
can put out such a grandiose statement.
The Department of Homeland Security's abuse of the public
trust by routinely claiming AUO up to 2 hours a day every day,
including the Department of Homeland Security headquarters and
while on training assignments where no qualifying circumstances
appear to exist. We are not talking in this instance
necessarily about the people that are actually on the border,
driving out from Yuma a couple hours to go to their station.
That is not what we are talking about. We are talking about
desk jockeys who are sitting at headquarters and at training
facilities where it is fairly predictable what is going to
happen. There is a difference. There is a difference and we are
going to explore that.
Was the Department of Homeland Security unable or unwilling
to bring an end to the longstanding practice that pads the
pockets and pensions of Homeland Security employees who watch
sports and entertainment channels on a daily basis at taxpayer
expense? Part of the answer to this question may stem from the
fact that this behavior was endorsed by management in many
cases, also practiced by management themselves.
According to CBP's own data, in 2013 agents at Border
Patrol headquarters claimed an average of 20 hours of overtime
pay per period, one of the highest Administratively
Uncontrollable Overtime of any CBP duty station. According to
the Office of Special Counsel, ``The attached report confirms
that Situation Room employees in Washington, D.C., claimed to
have worked 2 hours of AUO following their assigned shifts 89
percent of the time.'' Eighty-nine percent of the time people
working there claimed overtime. Again, these were not the
Border Patrol agents on the front line who are doing the tough,
difficult thing.
I want to read something here from the Office of Special
Counsel in her report. This is page three, a letter from the
Office of Special Counsel to the President of the United
States. ``A whistleblower at the U.S. Citizenship and
Immigration Service's headquarter facility in Washington, D.C.,
alleged abuses of AUO in 2010 while the whistleblower worked in
the Office of Security and Integrity. The whistleblower alleged
that everyone in OSI claimed 10 hours of AUO every week, even
though no employee performed work that qualified. Not one. This
whistleblower requested that her position be made ineligible
for AUO and also advised supervisors that AUO was being
routinely misused. The whistleblower was initially told she
could not be decertified from AUO because it would draw
unwanted attention to the office. While the whistleblower was
eventually decertified, the AUO abuse by others has not
stopped. DHS is required to submit a report in response to
these allegations by November 13th.''
I don't know who this whistleblower is, but she is the one
that should probably should be running that Department and that
agency and that group. God bless her for stepping up and
drawing out and highlighting a problem. That is exactly the
kind of person that should be running that. Again, we are
talking about the Commissioner's Situation Room, which I am
going to take is a fairly important position and an important
place.
Now, last week I introduced some bipartisan legislation,
H.R. 3463, to address the abuse raised by the Office of Special
Counsel. The bill will create a consistent, reliable pay
system, enhance border security, and is anticipated to save the
taxpayers more than $1 billion over 10 years according to the
initial estimate. The new pay scale, along with a long-term
solution, will iron out the kinks of the system through old-
fashioned planning and time management. These changes will both
reduce the opportunities to abuse the system and provide
compensation for unanticipated emergencies, such as actually
capturing people who are illegally coming across our borders. I
believe it is a logical solution. And I look forward to working
with my colleagues, including the chairman of the Federal
Workforce Subcommittee and original cosponsor, Blake
Farenthold, to advance the bill. Again, we have done it in a
bipartisan way. When we introduced it we had three Republicans
and three Democrats.
I want to thank the six whistleblowers for disclosing this
gross waste to the Office of Special Counsel. I appreciate Mr.
Florence for his willingness to share his story with the
committee. Mr. Florence has faced a number of challenges facing
his disclosure. And I will take the opportunity to remind
Homeland Security that this committee in a very bipartisan way
will not tolerate any sort of retaliation or retribution
against Mr. Florence or any other whistleblower who is simply
trying to make this government more effective and more
responsible to the American people.
And finally, and my conclusion here, I need to say we
continue to be deeply disappointed for those of you working at
Homeland Security who have failed to offer this committee your
testimony prior to your being here today. I am sure you are
both very nice people. We verbally called and said that we were
going to have this hearing. We sent letters to your supervisors
saying that we were going to have this hearing here today. We
asked that that testimony be provided by 10 a.m. yesterday. We
never received your testimony prior to your being here today.
Now, I know you work through a process with the Office of
Management and Budget. They know the drill. They also know
there is no excuse--no excuse--for not providing testimony
prior to coming before Congress. It allows us on both sides of
the aisle to review that testimony and be properly prepared so
we have a worthwhile hearing. This is a consistent drumbeat and
pattern from Homeland Security, to jerk around the United
States Congress. Please carry back the message with your
legislative liaison this is not tolerable, and yet it continues
and it persists.
We will now recognize, if there is another member, we will
recognize the gentlewoman for a very generous 5 minutes.
Ms. Lujan Grisham. Mr. Chairman, thank you very much. I
want to thank the panelists for being here. Of course, this is
a committee whose job it is to improve the effectiveness of
government and be clear about accountability in all facets.
I am reading the opening statement of Representative John
Tierney, who is the ranking member on the subcommittee.
Thank you, Chairman Chaffetz, for holding this hearing to
discuss concerns raised by a recent Office of Special Counsel
report regarding the misuse of overtime payments, called
Administratively Uncontrollable Overtime, by employees at the
Department of Homeland Security.
Regulation restricts the use of this type of overtime to a
very limited set of circumstances, such as when a Border Patrol
agent is investigating criminal activity. According to the
report, however, over the last year seven whistleblowers have
alleged routine misuse of AUO in separate DHS offices amounting
to nearly $9 million per year. Now, I understand that two of
these cases have now been substantiated by an agency
investigation after referral from the Special Counsel, one
other case was resolved through mediation, and the remaining
four cases are pending agency investigation.
In one of the substantiated cases the Department confirmed
that numerous employees and managers in a Customs and Border
Protection, a CBP headquarters unit called the Commissioner's
Situation Room, regularly misused AUO by claiming 2 hours of
AUO following their assigned shift nearly every day, and in the
absence of a compelling law enforcement need. The Department
also confirmed that the director and assistant director
authorized and embedded this improper practice.
Mr. Chairman, I could yield the rest of the opening
statement time to the ranking member--all right, I will
proceed.
The whistleblower told investigators that instead of
working, these employees routinely spent their AUO hours
relaxing, surfing the Internet, watching television shows, or
taking care of personal matters. Other whistleblowers, like Mr.
John Florence, who will be testifying today via video
conference, have alleged that AUO is routinely being used to
improperly complete administrative tasks or to cover shift
changes. It has also been alleged that some employers were not
even present at their duty station during the claimed AUO
period. I welcome Mr. Florence's testimony on this topic and
appreciate his willingness to share his story with us.
Special Counsel Lerner, who is here with us today, has
expressed serious concerns that these cases and a prior
disclosure in 2007 reveal longstanding abuse of overtime
payments by the Department and strongly indicate that the
Department of Homeland Security has a profound and entrenched
problem. In her report, Special Counsel Lerner also questions
the ability and willingness of DHS and CBP to address the AUO
problem. And after revelations of routine abuses in 2008, CBP
promised to issue and implement an agency-wide directive on
AUO, and 5 years later such a directive has not yet been
issued.
These disclosures and the Department's slow progress in
addressing the issue appear to point to a larger and more
fundamental problem: that the misuse of this administrative
overtime has become ingrained. The Special Counsel has noted
that collecting AUO has become a culturally acceptable
practice, and the National Border Patrol Council has stated
that AUO long been promised, advertised, and used by every
single agent who is a nonsupervisor.
While misuse of the administrative overtime cannot be
tolerated, I fully appreciate the importance of AUO for
frontline agents and officers who are protecting our borders,
and I want to make sure that this will be available for those
DHS employees who really need it to carry out the agency's
mission. I hope that DHS, CBP, and the National Border Patrol
Council will be able to provide this subcommittee with insight
into how AUO is being used, any challenges the Department and
its components face under the current system, and how the
problem is being addressed. I also look forward to hearing our
witnesses' thoughts on whether AUO, which was created 40 years
ago, can be fixed or whether it should be replaced by an
alternative overtime pay system.
Before I conclude my statement, I would like to ask my
colleagues to not let their outrage over these whistleblower
disclosures taint our view of Federal workers, the vast
majority of whom are hard-working and dedicated civil servants
who devote their lives to honorably serving and protecting the
American people.
Thank you, Mr. Chairman. And with that, I would yield the
remainder of the time to the ranking member.
Mr. Tierney. I yield back.
Ms. Lujan Grisham. And Mr. Chairman.
Mr. Chaffetz. Well, thank you.
Mr. Chaffetz. And particularly that last comment, which I
wholeheartedly agree on. I think this is an abuse that is being
ferreted out. But you are right, the overwhelming majority of
people at Homeland Security and other agencies, they do it
right and they work hard and they are patriotic and they don't
abuse the system. But there is widespread abuse here and we do
need to ferret it out.
So we are now going to recognize our panel. Mr. John
Florence, who is joining us via video, serves as the Branch
Chief at the Field Operations Academy for the U.S. Customs and
Border Protection; Ms. Catherine Emerson is the Chief Human
Capital Officer for the Department of Homeland Security; Mr.
Ronald Vitiello is the Deputy Chief of the Office of Border
Patrol within the Customs and Border Protection; Mr. Brandon
Judd is the president of the National Border Patrol Council;
and Ms. Lerner is the Special Counsel, Office of Special
Counsel, and issued one of the reports to the President that we
are here talking about today.
We appreciate you, Ms. Lerner, being here as well.
Pursuant to committee rules, all witnesses will be sworn in
before they testify. If you would please rise and raise your
right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
Let the record reflect that the witnesses answered in the
affirmative.
And you may be seated. I am going to go ahead and assume
that Mr. Florence did the same, even though he is there
remotely.
In order to allow time for discussion, we would appreciate
if you would limit your testimony to 5 minutes. We are going to
start actually with Mr. Florence. And like I said, we will do
his opening statement. We will then go to Ms. Lerner, we'll go
down the line. And then we will question Mr. Florence. At the
conclusion of our questioning him, then we will focus our
questions to the remaining panel.
Let's try with the technology here to start with Mr.
Florence. You are now recognized for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF JOHN FLORENCE
[The following testimony was delivered via teleconference.]
Mr. Florence. Chairman Chaffetz, Ranking Member Tierney,
and members of the subcommittee, my name is John Florence. It
is my honor to testify in front of this panel on the subject of
Authorized Uncontrollable Overtime violations within Customs
and Border Protection. I sincerely apologize I could not be
there in person. However, because of my serious medical
challenges, my physicians have advised me not to do so.
While on my assignment as Acting Assistant Director at the
Field Operations Academy, on August 20, 2012, I received a
detailed email message, which was also sent to the Field
Operations Academy Director, Kevin Strong, Deputy Director
Michael Brown, and Assistant Director Select Kevin Levan. This
email identified serious concerns about AUO violations by
employees and senior level managers at the FOA. The allegations
were AUO was being scheduled on a regular and reoccurring basis
for work that was not uncontrollable and was primarily
administrative and managerial in nature.
AUO employee shifts were being manipulated from normal
academy business hours of 0730-1630 to 7 o'clock to 3 o'clock
and then claiming AUO nearly every day from 3 o'clock to 5
o'clock. Lunch breaks were not being taken, to maximize AUO
earnings during normal business hours. AUO was being claimed
for work that should have been completed during normal business
hours. And also of note but not identified in this email was
AUO earners would receive approximately 20 hours of AUO per pay
period or 25 percent of their base annual salaries.
I scheduled several meetings on this matter with Deputy
Director Brown and sent several comprehensive email messages
voicing my concerns. Unfortunately, it became apparent that the
AUO violations were not receiving due diligence and would
continue to be authorized by former Director Strong because he
was also significantly benefiting from the AUO pay. This was
even after former Director Strong and Director Brown received
comprehensive AUO guidance on August 14, 2012, from other
senior level Border Patrol managers.
On September 4, 2012, I filed a Joint Intake Center
investigation for a comprehensive review by Customs and Border
Protection headquarters investigative components because of my
concerns about mismanagement by senior level managers locally.
Additionally, on September 11, 2012, I sent Deputy Director
Brown an email message regarding my concerns about continuing
authorization of AUO pay when it was clearly in violation of
the policy, and based on these facts I no longer felt
comfortable approving it.
After I advised Deputy Director Brown that I filed a Joint
Intake Center investigation on the AUO violations, former
Director Strong ordered that all AUO concerns and approvals
would go through him directly until Assistant Director Kevin
Levan reported for duty. Assistant Director Levan was also an
AUO earner.
After almost 1 year had passed and I had not received a
response or any indication that anything was being done to stop
the AUO violations that were being observed at the Field
Operations Academy and was prevalent throughout the rest of the
Office of Training and Development and headquarters
assignments, with the exception of the headquarters sending out
an AUO training mandate on August 27, 2012, for all supervisors
and managers to complete. However, this effort was ineffective
because after this requirement was satisfied, the AUO
violations continued. This reminded me of the action that was
taken by the agency in 2007 on the Lynden, Washington, Office
of Special Counsel case DI-08-0663 on AUO violations.
After applying due diligence to stop the AUO violations
within my chain of command and through the agency's
investigative branches with no success, it became apparent that
I needed to file outside the agency as a whistleblower with the
Office of Special Counsel.
Also of concern was the disparaging pay practices which was
causing low morale because many employees were working in the
same work areas and in identical positions, however the Border
Patrol 1896 employees were receiving up to an additional 25
percent of their base pay, which to my understanding was also
being utilized to calculate their retirement annuities. Many of
the 1895 employees and managers that were not receiving any
additional pay had serious concerns about equal pay for equal
work. This was because they were also working 10 to 12 hour
days and were being required to be on call but were not
receiving any additional compensation.
I would like to close by saying that this experience has
been the hardest decision in my 27-year Federal law enforcement
career concerning reporting the AUO violations and including
the former director and Deputy Director Brown in my testimony
because they have been friends, colleagues, and mentors of mine
for the last 15 years.
It goes without saying to do the right thing sometimes
comes with a tremendous price is an understatement. Reporting
the AUO violations has taken its toll on my career, personal
life, and health. Because of my mental anguish, stress, and
retaliatory treatment I have received since reporting the AUO
violations to my superiors, and due to the medications I was
taking after a serious back surgery on February 10, 2013, I
almost lost my life.
I had a serious--excuse me--I had a serious medical
incident which caused me to be in an intensive care unit for 4
days. I'm sorry for losing my bearings. My chances for survival
were very low and I was in a fight for my life. Today I stand
before you with my life irrevocably damaged, being permanently
disabled and unsure of my future with the agency.
Committee members, I have asked myself this question a
number of times: Would I do it again? Would I report these
blatant AUO violations if I knew what I know now? The answer is
yes, because it was my duty to do so, it was the right thing to
do, it was a violation of one of CBP's core values, which is
integrity, and it was a serious fraud, waste and abuse of
taxpayer's dollars. Thank you very much.
Mr. Chaffetz. Mr. Florence, we thank you. We thank you very
much. I appreciate that. It is very heartfelt and we appreciate
it. It is very helpful.
[Prepared statement of Mr. Florence follows:]
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[GRAPHIC] [TIFF OMITTED] T7893.004
Mr. Chaffetz. Let us go through the testimony of the other
four and then we will come back to you for questions.
I now recognize Ms. Lerner for 5 minutes.
STATEMENT OF CAROLYN N. LERNER
Ms. Lerner. Chairman Chaffetz, Ranking Member Tierney and
members of the committee, thank you for inviting me to testify
today about overtime abuse disclosed by whistleblowers at the
Department of Homeland Security. I would like to introduce the
two attorneys from our agency who had primary responsibility
for the report, Lynn Alexander and Johanna Oliver, and they did
a terrific job. They are attorneys in our Disclosure Unit.
My statement to today will focus on three areas: the role
of the Office of Special Counsel in whistleblower matters
generally; the procedures followed in this matter; and finally,
our findings and areas of concern.
I want to start by briefly explaining our role in
disclosure matters. As an independent agency within the
executive branch, the OSE provides a safe channel for Federal
employees to disclose government wrongdoing. We evaluate
disclosures using a ``substantial likelihood'' standard. If the
standard is met, I send the matter to the head of the agency,
who in turn is required to conduct an investigation and submit
a written report of investigative findings to my office.
After reviewing the agency's report, I make two
determinations: first, whether the report contains the
information required by statute; and, second, whether the
findings of the agency appear reasonable. In addition, the
whistleblower may review and comment on the agency report. My
office then transmits the report with findings and
recommendations to the President and congressional committees
with oversight responsibility. In this case, my findings and
recommendations are attached to my submitted testimony.
It was within this statutory framework that we received
disclosures from seven whistleblowers from six separate offices
of the Department of Homeland Security over the past 2 years.
In September 2012, Jose Ducos-Bello contacted OSE about
overtime in the U.S. Customs and Border Protection
Commissioners' Situation Room in Washington, D.C. Mr. Ducos-
Bello alleged that employees there regularly abused
Administratively Uncontrollable Overtime, AUO. The director and
assistant director were authorizing this improper use and it
was the norm for employees to extend their shifts by two hours
every day, increasing pay 25 percent.
By regulation, this type of overtime may only be used when
an employee's hours cannot be scheduled in advance due to a
substantial amount of irregular and unpredictable work or a
compelling law enforcement reason. For example, AUO is
appropriate when an employee is apprehending a suspected
criminal and it would constitute negligence for the employee to
leave the job unfinished. However, the employees in Mr. Ducos-
Bello's disclosure were not using AUO as the result of any
unpredictable or compelling law enforcement need. According to
Mr. Ducos-Bello, many employees spent the extra time relaxing
or surfing the Internet.
The abuse was not an isolated occurrence. Over the past
year we received disclosures from six more whistleblowers at
five other DHS offices. These allegations are outlined in more
detail in my October 31, 2013, letter to the President.
The estimated cost of abuse at these six facilities alone
is almost $9 million each year. The whistleblowers estimate
that the cost nationwide is likely to reach tens of millions of
dollars annually. This estimate excludes overtime claims by
agents in the field, those whose need for AUO would seem to be
most justified.
In April 2013 we received DHS' report on Mr. Ducos-Bello's
allegations and the report substantiated his claims. As to the
other five investigations, DHS' reports to my agency are due
within the next several weeks and months. We will keep the
subcommittee informed.
I credit the Customs and Border Patrol for conducting a
thorough investigation into the whistleblowers' allegations.
However, while CBP has pledged to take corrective action, I
remain concerned about whether the agency is ultimately willing
or able to do so.
In 2007 identical concerns about overtime abuse were
raised. DHS confirmed the allegations and the agency made
similar promises about correcting them. At that time CBP
outlined a corrective plan, much of which is mirrored in its
response to the current round of allegations. In addition, in
its current report DHS describes obstacles to correcting these
problems, including collective bargaining agreements and the
need for updated regulations from the Office of Personnel
Management.
While I am very hopeful that the Department will overcome
these obstacles and take definitive action to correct this
overtime abuse, I am also realistic. Based both on the
magnitude of the problem and the prior history of ineffective
measures taken, it will require a serious commitment the to
make necessary change. I am pleased that Congress and this
committee have shown an interest in helping the Department find
ways to solve this problem.
In conclusion, I want to applaud Mr. Florence, Mr. Ducos-
Bello, and the other courageous whistleblowers who spoke out
about this important issue, often against their own financial
self-interest. Had they not stepped forward, these problems
would not have come to light and the taxpayers would continue
to foot the bill for these improper payments.
Thank you very much. I will be pleased to answer any
questions that the committee may have.
Mr. Chaffetz. Thank you.
[Prepared statement of Ms. Lerner follows:]
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Mr. Chaffetz. Ms. Emerson, you are now recognized.
STATEMENT OF CATHERINE V. EMERSON
Ms. Emerson. Chairman Chaffetz, Ranking Member Tierney,
distinguished members of the subcommittee, thank you for the
opportunity to appear before you today to address the
Department's use of Administratively Uncontrollable Overtime,
AUO.
I serve as the first career Chief Human Capital Officer of
the Department of Homeland Security and am responsible for the
Department's Human Capital Program, which includes workforce
planning, policies, and technology in support of the DHS
mission.
Today I am here to discuss AUO, a matter that has been of
concern to the Department for some time. Properly paying our
border and Homeland Security personnel and properly managing
that pay system are essential to the Department's mission. AUO
was established by Congress in 1966 and is a payment mechanism
that allows the compensation of certain employees for
irregular, unscheduled, but necessary overtime. AUO is
determined as a percentage, not less than 10 percent nor more
than 25 percent of an employee's rate of basic pay fixed by law
or administrative action for the position held by the employee.
Mr. Chairman, we appreciate your taking the initiative to
introduce new legislation to attempt to address the challenges
posed by AUO and welcome the opportunity to work with you on
finding solutions at an affordable cost. As you know, the
Department has sought legislative changes for several years
that would enable CBP to reform and rationalize its
compensation structure. The Department has been working to
institute pay reform, including AUO, since 2009.
The President's fiscal year 2011 budget request submitted
in April of 2010 would have fully funded that increase. That
plan also required statutory changes in a comprehensive pay
reform legislative proposal submitted as part of the
President's fiscal year 2012 budget request and formally
submitted to Congress in September 2011.
Unfortunately, Congress did not take action on the
proposal. The Department again restated the proposal in the
President's fiscal year 2013 budget request to provide fair
payment for all of CBP's overtime-eligible law enforcement
officers and agents.
The Department takes its responsibility to be good stewards
of taxpayer dollars very seriously. Any misuse of government
funds will not be tolerated. At the request of the Special
Counsel, on October 31, 2013, Acting Secretary Beers ordered an
expeditious and comprehensive Department-wide review of our
compliance with rules governing the use of AUO. The Office of
General Counsel is conducting the compliance review and
examining both current practices relating to designating
positions as eligible for AUO pay and the compliance with all
applicable rules and laws in recording and paying for AUO. The
Office of the Chief Human Capital Officer, CBP, and all other
relevant components of DHS are working closely with OGC on the
compliance review and will be integral in implementing any
decisions that result from OGC's findings and recommendations
to the Secretary.
In conclusion, the Department and CBP are committed to
finding solutions to modernize and streamline compensation
structures, to align them with evolving missions, and to
reflect the expanded responsibilities of our workforce, and we
look forward to working with Congress to achieve these goals.
Thank you for allowing me the opportunity to testify before
you today, and I look forward to answering any of your
questions.
[Prepared statement of Ms. Emerson follows:]
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Mr. Chaffetz. Mr. Vitiello, you are now recognized for 5
minutes.
STATEMENT OF RONALD VITIELLO
Mr. Vitiello. Chairman Chaffetz, Ranking Member Tierney,
members of the subcommittee, thank you for the opportunity to
appear before you today to address the recent allegations
against U.S. Customs and Border Protection and specifically the
U.S. Border Patrol.
When CBP was established in 2003 in the wake of the
terrorist attacks on September 11, 2001, it was tasked with
merging personnel, equipment, policies, procedures, and systems
from four agencies within three departments, Treasury,
Agriculture, and Justice. Today, the uniformed men and women of
CBP make up the largest law enforcement organization in the
Nation and take a solemn vow to secure the homeland from
terrorists and other threats.
While much of CBP's critical efforts are performed at
official ports of entry and at the land and maritime borders in
between, advancements in technology are increasingly enabling
aspects of frontline law enforcement activities.
The responsibilities of a Border Patrol agent are arguably
the most unpredictable of all CBP's law enforcement positions.
While the function of the Border Patrol has changed and
expanded dramatically since its inception 89 years ago, its
primary mission remains unchanged. The Border Patrol protects
our Nation by reducing the likelihood that dangerous people and
capabilities enter the United States between the ports of
entry.
This effort is accomplished by maintaining surveillance,
following up leads, responding to electronic sensor alarms and
aircraft sightings and interpreting and following tracks. We
also maintain traffic checkpoints along the highways leading
from border areas, conduct city patrols and transportation
checks, and support the antismuggling investigations. Agents
regularly work in isolated and harsh terrain. Agents patrol the
border on foot, in vehicles, boats, and in some areas patrol on
horses, all-terrain vehicles, bikes, and snowmobiles.
The Border Patrol's frontline border security efforts are
increasingly augmented by advancements in technology, including
enhanced sensor, video, and radar technology. This technology,
affixed to assets such as unmanned aircraft systems, increases
the Border Patrol's capabilities in the land, air, and maritime
domains between the ports of entry. The vast amounts of
information gathered from this technology requires review and
analysis and rapid interpretation into actionable information
for use by agents on the ground.
The work of the Border Patrol agent is by its very nature
dynamic and unpredictable. In the course of any given day,
agents are continually presented with new conditions and new
situations. This type of work requires agents both patrolling
on the ground and processing intelligence at remote locations
to follow leads and go where the activity takes them, even if
it takes them beyond their standard duty hours.
When it comes to paying Border Patrol agents for work
beyond regularly scheduled hours, the Department and CBP are
committed to working with Congress to modernize and streamline
our compensation structure to reflect the expanded
responsibilities of the workforce.
Administratively Uncontrollable Overtime, a system
established almost 50 years ago, no longer meets the needs of a
21st century law enforcement environment where increasing
amounts of surveillance, intelligence, and Border Patrol
activities are often conducted in remote areas. The work of
securing the border is no longer limited to physical presence
on the border and our compensation system should reflect the
current operational environment.
The U.S. Border Patrol takes its responsibility to be a
good steward of taxpayer dollars. Any misuse of government
funds is not tolerated. The U.S. Border Patrol will cooperate
fully with all internal DHS and external reviews of our
compensation and procedures.
Prior to the issuance of the Special Counsel's report, CBP
initiated an internal working group on Administratively
Uncontrollable Overtime to review current practices and update
internal policies, where applicable, to reflect the roles and
responsibilities of the positions earning AUO.
The Border Patrol also regularly issues official guidance
on all AUO to chief patrol agents in the field, most recently
in December of last year. This guidance contains the
regulations and policies governing the administration of AUO,
criteria that agents must meet and be authorized to be deemed
eligible for payments for legitimately claiming AUO, and the
responsibilities required of employees, supervisors, and
managers.
While the Department and CBP have taken steps to educate
supervisors and employees about the proper application of AUO,
we continue working to educate and train our staff on the
proper use and align pay structures with current agency
functions.
The Border Patrol's mission requires compensation
structures, maintain flexibility and ensure continuous
coverage. We would welcome a legislative solution that meets
the agency's critical mission, promotes efficiency, and has the
least impact to our Border Patrol agent personnel.
Thank you for allowing me the opportunity to testify today,
and I look forward to your questions.
Mr. Chaffetz. Thank you.
Mr. Judd, you are now recognized for 5 minutes.
STATEMENT OF BRANDON JUDD
Mr. Judd. Chairman Chaffetz and Ranking Member Tierney, on
behalf of the 16,500 Border Patrol agents who are members of
the National Border Patrol Council, I would like to thank you
for having this hearing to explore reforming the
Administratively Uncontrollable Overtime system.
I am the president of the Border Patrol Council and I have
been a Border Patrol agent for 16 years. I am currently
assigned in Maine, but I have worked the majority of my career
in some of the busiest Border Patrol sectors, including El
Centro, California, and Tucson, Arizona.
The Special Counsel's latest report simply confirms what
line agents have been saying for years: AUO is outdated and a
broken system that needs wholesale reform.
When AUO was first instituted in the 1970s there were fewer
than 4,000 Border Patrol agents. There was no border fence,
remote sensing technology, or even an interoperable
communications system. Most agents worked alone or in small
groups with little or no supervision.
AUO made sense 40 years ago because if an agent was
tracking smugglers or illegal aliens, after the shift was over
the agent could simply keep working. Those extra hours worked
were covered under AUO. When I entered on duty with the United
States Border Patrol in 1997, there were still mom-and-pop
smuggling organizations who peddled their product across our
borders.
Fast forward to where we are today in 2013. Gone are the
mom-and-pop smuggling organizations, replaced by multinational
cartels that smuggle both drugs and illegal aliens into our
country. These cartels are well organized, well funded, heavily
armed, extremely violent, and have an extensive intelligence
and surveillance network. With each tunnel coming into the
United States that is discovered by law enforcement, the
American public is made aware of just how well funded and
organized these cartels are.
In response to cartel threats and the increase in both
human and drug smuggling, Congress set a Border Patrol staffing
floor at approximately 21,300 agents, seven times its initial
size. This level of staffing not only ensured more agents in
the field, but also ensured that Border Patrol would be a 24-
hour-a-day operation on all of our borders.
In order to maximize manpower in the field, the Border
Patrol utilizes a three-shift rotation with each shift lasting
8 hours. The challenge is how to handle shift changes because
it is common for an agent's patrol area to be over an hour away
from the Border Patrol station. Therefore, an agent's shift may
be done, but the oncoming relief is still an hour away. After a
handover is made with an oncoming agent, the off-going agent
still has to drive an hour back to the Border Patrol station to
turn in all equipment. So while a shift may be 8 hours, the
agent has to work an extra 2 hours per day to ensure border
integrity. These hours are and have always been covered under
AUO, which we know through the Office of Special Counsel is
illegal.
For the most part, when discussions on border security
arise, the conversation tends to focus on the southwest border.
In no way do I want to detract from the importance of securing
the southwest border, but I would be remiss if I didn't mention
the ongoing threat of the nearly unguarded northern border to
the safety of the American public. As far as I am aware, all
recent threat assessments have pointed to the northern border
as the most likely point of entry into our country for
terrorists.
I also need to remind the committee of our recent history.
In the early to mid-1990s, San Diego and El Paso were ground
zero for both illegal immigration and drug smuggling. In
response, the Border Patrol threw all of its resources at those
two areas without also strengthening other areas of the border.
The thought process was that no one would attempt to cross
through the inhospitable deserts of Arizona.
We now have a similar thought process in that we don't
believe illegal smuggling, whether it be drugs or aliens, will
ever move to our northern border because it is cost
prohibitive. Like Arizona, the northern border is ripe for the
exploitation of not only alien and drug trafficking, but also
for facilitating the illegal entrance of terrorists and those
that would do this country harm. If we selectively limit
manpower to current locations with high volumes of illegal
crossings, all we really achieve is shifting the point of
illegal entry to a different location.
The real question is where do we go from here. Last week,
Chairman, you introduced legislation, H.R. 3463. In addition,
Senators Tester and McCain introduced a companion bill in the
Senate. The legislation would reform Border Patrol agent pay
for the first time in almost 40 years.
On this point I want to be clear: Border Patrol agents
completely support this legislation. The primary reason agents
support this legislation is that it guarantees manpower we need
in the field to accomplish our mission.
I learned early in my career that manpower and agent safety
are linked. It was true when I started 16 years ago. It is even
more true today. With the domination and spread of
sophisticated drug cartels on the border, having this
legislation in place is the equivalent of hiring 5,000 new
Border Patrol agents, which increases border security as well
as agent safety.
Finally, I would like to address the cost savings that
would be achieved by the legislation. This legislation will
save taxpayers over $1 billion over the next 10 years. Moving
to this new system will be a pay cut from what Border Patrol
agents have traditionally earned. However, we believe ensuring
proper manpower stability and safety is worth a pay reduction.
Chairman, I look forward to any and all questions that you
might have.
Mr. Chaffetz. Thank you.
[Prepared statement of Brandon Judd follows:]
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Mr. Chaffetz.
We are going to now direct our questions to Mr. Florence. I
would ask members here on the panel to direct their questions
just to Mr. Florence. We will go through those questions. At
the conclusion, then we will focus on the four here in
Washington, D.C. I will now recognize myself for 5 minutes.
And, Mr. Florence, I hope you can hear me. And I appreciate
your testimony. Could you please tell me what you saw? What
were these people doing day in and day out? You mentioned
generally that they were surfing the Internet, doing those
types of things, but what specifically did you see them doing?
Mr. Florence. Well, I didn't see them doing specific
things. I did not mention anything about them surfing the
Internet. That was Mr. Ducos out of the Situation Room.
The individuals that were under my supervision worked in
the Marine Branch, and according to their 203s, which were
their AUO forms, they were preparing for lessons for the next
day, working on lesson plans, other things like that, that were
primarily controllable and administrative in nature.
Normally here at the academy the instructors will work
anywhere from 4 to 6 hours a day and they will have at least 2
hours of a break to do the things that they were putting down
that they were doing on their AUO. Sometimes they would even
have 4 hours a day to prepare for their lessons the next day
and to prepare for their classes and lesson plans, et cetera.
So it didn't make any sense to me as far as prudent management
why these employees were filing the AUO they were when they had
plenty of time during their shifts to accomplish their work.
Mr. Chaffetz. I now yield to the gentlewoman from Wyoming,
Mrs. Lummis.
Mrs. Lummis. Thank you, Mr. Chairman.
Mr. Florence, thank you for your testimony. I understand
that you began your law enforcement career as a law enforcement
specialist at F.E. Warren Air Force Base in Cheyenne, which is
where I am from. So I am very pleased that you were willing to
testify today.
I want to focus on the kind of response that you received
when you notified your colleagues about the allegations of
overtime abuse. Mr. Florence, could you comment on that?
Mr. Florence. When I sent Deputy Director Brown my email,
which I mentioned, which was on the 11th of September, he
actually wanted to speak with me in person. He responded back
by saying they were very serious allegations, et cetera, which
I appreciate that and I can understand that. But he asked me to
come into his office the next day. And then he sat me down and
he said that my allegations were very serious, that I was
questioning the director's integrity, and did I think that he
would jeopardize his career for AUO? And then he told me you
can go ahead and file your Joint Intake Center report but I
feel it is a real waste of government money and a waste of
government time.
Mrs. Lummis. Now, based on your experience working at CBP,
what do you think contributes to this problem, an atmosphere or
a culture where overtime is abused? Is it a lack of training or
is it just a sort of a herd mentality to think that this is
somehow fair? Or the fact that, gee, we feel like we are
underpaid and until Congress addresses that we will find a way
to make sure that we are adequately paid, whether it is legal
or not. What is it about this culture that makes this so hard
to eradicate?
Mr. Florence. Well, I think some of the Border Patrol
agents feel that it is an entitlement, it is part of their pay
package. When I received the three employees that were Border
Patrol agents under my chain of command, I quickly started to
study what AUO was all about because I was unfamiliar with it.
I don't claim myself as a subject matter expert on AUO in any
way, shape or form, but I know when someone should be working
overtime and when they shouldn't, and in a training environment
obviously most of it, 99 percent of it is controlled, so in any
opinion it wasn't necessary.
So I think it is basically the mentality. It is an
entitlement, it is an AUO-certified position, so therefore we
can have AUO. That is what I was told by the director on
numerous occasions. But in doing some research on my own on the
Lynden, Washington, case, and then doing the mandatory training
that was sent out and then doing my own research, I quickly
found it was easy to understand that this was in violation of
the policy. And I explained that to them numerous times to try
to get this taken care of within my chain of command.
Mrs. Lummis. Mr. Florence, one more question. We had
testimony from Mr. Judd that it can be a 2-hour commute, 1 hour
each way, for a shift that is far away from the area where you
must turn in your weapons and stuff before the end of a shift.
Is that the typical situation where you would allege that
overtime is abused or is that an appropriate use of overtime?
Mr. Florence. Well, at the academy, as I said before,
everything is controlled. They don't have to commute anywhere
near that time. They are normally in their work area so they
are able to report on time and there is normally no commutes.
Now, in the marine environment where these three employees
worked, I understood that there could be situations where they
got stuck out at sea because of weather or they had a
mechanical issue with their vessels, et cetera, and I accepted
that. I told them in those kind of situations, AUO should be
authorized. It is uncontrollable. But in most situations in the
academy environment everything is controllable and scheduled in
advance.
Mrs. Lummis. Thank you for your testimony, Mr. Florence.
Mr. Chairman, I yield back.
Mr. Chaffetz. Thank you.
We'll now recognize the ranking member, Mr. Tierney of
Massachusetts, for 5 minutes.
Mr. Tierney. Thank you.
Thank you, Mr. Florence, for making yourself available to
testify here today, and accept at least my regrets for what you
have gone through physically and emotionally as a result of
trying to do your job the proper way and know that we respect
it and appreciate it and feel very badly for the situation that
you are in today healthwise.
I want to make this as short as I can, my questions. I was
curious to know what kind of retaliation and confronted your
subordinate, and you heard about that and you testified about
that. So let me just quickly ask you, who specifically did you
directly report to when you first made the determination that
this was being done improperly?
Mr. Florence. I directly reported to the deputy director,
Michael Brown, which in turn he reported to the director, Kevin
Strong, who was also an AUO earner. Michael Brown was not an
AUO earner.
Mr. Tierney. And did the deputy director have a direct
response to you, directing you to either change the situation
that you found or advising you to just leave it alone?
Mr. Florence. He advised me that it was an AUO-certified
position, that I didn't know what I was talking about, I didn't
know the AUO system, and that, like I said before, the director
was not going to jeopardize his career over AUO and it is a
very serious concern of his that I am even bringing this up.
Mr. Tierney. Did you have any indication of how it was he
thought he was going to be jeopardizing his career by dealing
with this issue?
Mr. Florence. I am not really sure about that. I think what
he was alluding to is that the director wouldn't collect the
AUO unless it was authorized and it was within policy.
Mr. Tierney. Okay. All right.
I have no further questions. If my colleague has any
questions I'll yield.
Mrs. Kelly. No, I have no questions.
Mr. Tierney. We yield back, Mr. Chairman.
Thank you, Mr. Florence.
Mr. Chaffetz. Mr. Florence, we thank you for your time,
your commitment, your dedication to your country, your service.
It is my understanding there are no other questions from this
panel of members. We thank you again for your bravery, for your
willingness to step forward and do what is right, and I hope
you sleep better because of it. And I am heartened that people
like you are in those positions, and I appreciate the
responsible nature. I appreciate you preparing for this
testimony. Testifying before Congress is not an easy thing. And
God bless you. I wish you nothing but the best. We thank you
for your time. You are welcome to listen.
This committee will now direct its questions to the four
panel members that are here in Washington, D.C., and I will
start by recognizing myself for 5 minutes.
Ms. Lerner, on January 2 of this year you sent a letter to
Secretary Napolitano. On page 3 you said, ``I have concluded
that there is a substantial likelihood that the information
provided by the whistleblower to OSC discloses a violation of
law, rule, or regulation, gross mismanagement, an abuse of
authority, and gross waste of funds.''
You stand by that statement, correct?
Ms. Lerner. I do.
Mr. Chaffetz. Your microphone, please.
Ms. Lerner. I do.
Mr. Chaffetz. Ms. Emerson, is she right or is she wrong?
Ms. Emerson. We are currently in the process----
Mr. Chaffetz. Wait. Currently in the process? This is a
letter that was sent on January 2nd. It is now November 20. Is
she right or wrong?
Ms. Emerson. That is currently under review by the Office
of General Counsel.
Mr. Chaffetz. How long does it take you to review this?
Ms. Emerson. From what I understand, it is going to take
several months.
Mr. Chaffetz. Well, it has been--we are in month 11. How
many more months do you think it is going to take?
Ms. Emerson. I will have to get back to you with that. But
from my understanding it will take several months. I know----
Mr. Chaffetz. What is your role?
Ms. Emerson. I am the Chief Human Capital Officer.
Mr. Chaffetz. The Chief Human Capital. You are in charge.
Who do you report to?
Ms. Emerson. I report to the Under Secretary for
Management.
Mr. Chaffetz. What is his name or her name?
Ms. Emerson. Presently there is an acting. That would be
Chris Cummiskey.
Mr. Chaffetz. How long have you been in this role?
Ms. Emerson. I have been the DHS CHCO since August of 2011.
Mr. Chaffetz. When did you first become aware of this
problem?
Ms. Emerson. My office first became aware of it somewhere
in 2009, the former CHCO.
Mr. Chaffetz. So you knew it was a problem in 2009.
Ms. Emerson. The office worked on----
Mr. Chaffetz. When did you personally, Ms. Emerson, when
did you become aware of it?
Ms. Emerson. I personally became aware of it, it came to my
attention in late April and----
Mr. Chaffetz. Of this year.
Ms. Emerson. Yes.
Mr. Chaffetz. Do you think anybody has been dishonest?
Ms. Emerson. That is under review right now, but OGC----
Mr. Chaffetz. What is the question here? We have the Office
of Special Counsel who has reviewed this and come up with a
definitive report on this. What do you need to do that Ms.
Lerner hasn't done?
Ms. Emerson. What I understand is that Ms. Lerner had some
very serious concerns regarding the administration of AUO at
DHS. That report or letter was sent to the Office of General
Counsel, and they are working with the component. They are also
working with my office, the Office of the CHCO, in reaching out
to the component experts to look into the matter.
Mr. Chaffetz. Has anybody been fired?
Ms. Emerson. Regarding this? I am not knowledgeable on that
at this point.
Mr. Chaffetz. You are the chief human capital person. You
can't point to a single person who has been fired, let go. What
are you going to do to claw back the dollars?
Ms. Emerson. That is under review with the Office of
General Counsel.
Mr. Chaffetz. What are you here to talk about then?
Everything is under review. Who is reviewing it? Who should
have been here to represent the Department? Are you the chief
or are you the----
Ms. Emerson. I am the Chief Human Capital Officer and I
have oversight throughout DHS for human capital programs. I am
involved presently with the review being done by OGC to look at
AUO administration----
Mr. Chaffetz. What about the specific allegations?
Ms. Emerson. Those are all being reviewed currently.
Mr. Chaffetz. When are you going to come to a conclusion?
Ms. Emerson. In the next several months.
Mr. Chaffetz. No, no, no, give me a date. What is the date?
Ms. Emerson. I will have to get back to you on the date. I
have been informed that it will be----
Mr. Chaffetz. Do you think anything that has been done has
been dishonest?
Ms. Emerson. As I said, I have to look into the facts. I
know that they are being reviewed right now.
Mr. Chaffetz. This started in 2008. It was brought up again
in 2009. A letter went to the Secretary on January 2nd of this
year. And you are still reviewing it?
Ms. Emerson. As I said, it is under review by the Office of
General Counsel, and it is a case-by-case, component-by-
component review of AUO usage throughout----
Mr. Chaffetz. You can't point to any case where we are
clawing these dollars back?
Ms. Emerson. I know that there has been work in that area.
Mr. Chaffetz. You said in your testimony, the testimony
that you never gave us in advance--we have trouble getting it
right now. You said, ``At the request of special counsel, on
October 31, Acting Secretary Beers ordered an expeditious and
comprehensive department-wide review of our compliance and
rules for the governing use of AUO.'' October 31st? You started
a few days ago? She sent a letter to the Secretary on January
22nd, saying there is a substantial likelihood that the
information provided by the whistleblower discloses a violation
of law, rule, regulation, gross mismanagement, abuse of
authority, and a gross waste of funds, and you didn't start a
review until October 31st?
Ms. Emerson. That review is the component-by-component
department-wide review. That information was handled by OGC and
forwarded to the Customs and Border Patrol, and they were
working on that--those specific instances were specific to CBP.
Mr. Chaffetz. I can tell exactly why this continues to be a
problem. There are tens of millions of dollars, taxpayer
dollars, that are being abused. They are being stolen from the
American people. And you are doing nothing about it. You have
known about this since 2008. It was highlighted in January. And
yet, nothing has been done. Don't tell me that there are months
that we have got to continue to review this. There are people
that need to be fired. There are dollars that need to be clawed
back. There are people that may be headed to a violation of law
that should be going to jail. So I hope we get the right person
from Homeland Security to come here.
This committee will hold another hearing with the right
person, who is actually going to testify to Congress. But don't
tell me that you need more dollars, more resources. You heard
Nancy Pelosi saying, we are at bone bare--you know, the
cupboard is bare. There is nothing to give. There are too many
thousands of people who are working hard, doing the right
thing, and guess what? They are getting screwed by the
Department of Homeland Security, because those people are
stealing from the American people.
You take that back to Homeland Security and let them know,
they are going to deal with Congress. They are going to be
candid about this. They are going to hold people responsible,
and they are going to be candid in making sure that they are
responsible with the American taxpayer dollars. Your answers,
quite frankly--you are a very nice person--but your answers,
quite frankly, they are not acceptable. For you to be the chief
human capital person and you have no answers to any questions,
saying everything is under review because, well, it is not in
my department; it is with the General Counsel. It is
inexcusable.
I now recognize the gentleman from Massachusetts, Mr.
Tierney for 5 minutes.
Mr. Tierney. Thank you.
I am going to cede to Ms. Kelly, who was here in my delay
in being here, so please. Thank you.
Mr. Chaffetz. Ms. Kelly.
Ms. Kelly. Thank you, Mr. Chair and Ranking Member Tierney.
Mr. Judd, your colleague, Shawn Moran, the vice president
of the National Border Patrol Council, was quoted in a recent
Washington Post article as stating that AUO has long been
promised, advertised and used by every single agent who is a
nonsupervisor.
Panel members, do you agree with that statement, that
collecting AUO has become a promise that employees and new
hires have come to expect?
Mr. Judd. Thank you for your question. Actually, when you
apply for a job--and they have since removed this in the
application--but when I applied for the job, it was actually a
part of the compensation package that you were told that you
would earn. It said that you would earn a substantial amount of
irregular overtime in the form of administrative uncontrolled
overtime. So, yes, all Border Patrol agents, prior to--I
believe that it was removed from the job announcement about a
year ago, but prior to a year ago, yes, all Border Patrol
agents were told that this was part of your compensation
package.
Ms. Kelly. Is it true that it has been used as an actual
recruitment incentive?
Mr. Judd. It has. It absolutely has.
Ms. Kelly. And I think it was said that a person could earn
up to 25 percent of their salary for AUO?
Mr. Judd. That is correct.
Ms. Kelly. That is a very strong recruitment incentive.
Mr. Judd. It is.
Ms. Kelly. Panel members, do you agree that it would be a
challenge to implement any fix to the AUO system that would
reduce or eliminate the AUO premium that employees have been
earning?
Mr. Vitiello. I think the findings in the investigation and
the work that we have done has shown that this has been a very
difficult challenge. That is why we look forward to working
with the committee and others to get us into a space where we
can put these kind of things behind us.
Ms. Kelly. Anyone else? Okay, panel members, if we
eliminate AUO for all employees not working on the front lines
protecting the border, would it be difficult to retain and
recruit employees to work at headquarters or at the
department's training facility? And how would we recruit and
retain these folks if you think it would be a hard time?
Mr. Judd. Congresswoman Kelly, if you remove the overtime
system that we currently have, you wouldn't be able to retain
employees. That is one of the biggest incentives that we have
to do the job we do. We live in environments, if you go out to
Sanderson, Presidio, Texas, Ajo, Arizona, we live in
environments that just aren't where the normal United States
citizens would choose to live. This--what we have noticed is
that, yes, AUO by law, Ms. Lerner has pointed it out, by law,
AUO is not being used correctly. However, we do have a fix for
that which would actually save the taxpayer dollars and would
increase border security.
Ms. Kelly. Do you feel the starting salary or however your
salary progresses is so low that it is hard to recruit people,
just----
Mr. Judd. No, our salary--when I began 16 years ago our
salary was extremely low compared to other police departments,
major police departments. However, our salary is now on par
with those police departments, but every police department in
the United States has an overtime system which they use. And
just like those overtime systems, we also need an overtime
system. But we need an overtime system that would be cost-
effective to taxpayers, increase border security, and include
incentives to retain our employees.
Ms. Kelly. Okay. Any other comments?
I yield back the remainder of any time.
Mr. Chaffetz. Thank you.
I will now recognize the gentlewoman from Wyoming, Ms.
Lummis, for 5 minutes.
Mrs. Lummis. Thank you, Mr. Chairman.
Ms. Emerson, you have some--a marvelous mastery of
bureaucratese, but let me tell you what I heard when you were
giving your testimony. I want to paraphrase what I thought I
heard you say. You said, Unless Congress does what DHS wants
with regard to giving us money, that we are going to keep
cheating the taxpayers to get it unless Congress will give us
more money. That is what I heard you say. Am I correct?
Ms. Emerson. AUO has been a challenge for the department
over the last years, as we have seen and is pointed out in
testimony here today and with the Office of Special Counsel.
And over the years, there have been----
Mrs. Lummis. No, no, no. Okay, and this is something that
somebody has taught you how to do when you are testifying in
front of Congress, which is stray, obfuscate, use
bureaucratese, so let me--let me just ask you a question again.
When you testified, were you saying that unless Congress gives
us more money, we are going to cheat the system? That is what I
thought I heard you say. But did I hear wrong? Yes or no? Did I
hear wrong?
Yes or no. Did I hear it wrong?
Ms. Emerson. There is--yes.
Mrs. Lummis. Okay, what did you mean to say? What did you
mean to say?
Ms. Emerson. That AUO has been a challenge over the years.
Mrs. Lummis. Oh, now, come on. What did you mean to say
when you said Congress isn't giving us the amount of money the
President requested, and so the AUO challenge will continue
until Congress gives us more money. That is what I heard you
say.
Ms. Emerson. It is not in regards to the money. It is in
regards to the legislation that has been proposed over the
years, and I appreciate the current draft legislation that has
been introduced. It is certainly an attempt to look at our AUO
situation, and to----
Mrs. Lummis. Okay, so the--so until Congress passes
legislation that will reform the AUO, you will continue to
cheat the system? Is that what I am hearing?
Ms. Emerson. No.
Mrs. Lummis. Okay.
Ms. Emerson. And also----
Mrs. Lummis. Okay, what am I hearing?
Ms. Emerson. The allegations, the report from the OSC is
currently under review by OGC.
Mrs. Lummis. Okay, thanks.
Ms. Lerner, obviously, the--I am going to have to go and
ask you these questions because I can't get a non-bureaucratese
answer out of the department. So is that what you're hearing
from the department, that there will be no reforms until
Congress changes the law?
Ms. Lerner. No, I can't say that's a message that we have
gotten.
Mrs. Lummis. What is the message you are getting?
Ms. Lerner. For the most part, I mean, the only report we
have gotten back now is on the Ducos-Bello matter, and that
report from Internal Affairs confirmed the allegations and said
that they would take steps to solve the problem. Now, my
concern with that report is, it was in many ways cut and pasted
from the same report that they gave us 5 years ago.
Mrs. Lummis. Uh-huh.
Ms. Lerner. And the obstacles that they cite to being able
to implement reform, you know, I can't really speak to those.
They say that they have collective bargaining agreements, and
OPM----
Mrs. Lummis. Let's explore that one. Yeah, let's explore
the collective bargaining agreement.
Ms. Lerner. I'm not really sure that I can add much to that
because I'm not--I'm not familiar with those obstacles that
they have cited.
Mrs. Lummis. If we wanted to explore whether somehow the
taxpayers are being cheated because of a collective bargaining
agreement that is negotiated between the government and the
union on behalf of its members, then we have got a problem.
Ms. Lerner. Well, I mean, let me--let me add something to
this conversation, which is that there are probably a very wide
variety of overtime uses here that we are talking about. Some
of them may, in fact, be fraudulent. Right. There may be people
who are claiming overtime when they are actually not working.
Mrs. Lummis. Right.
Ms. Lerner. Or not even on the job or surfing the Internet.
There may be folks who are actually working over time in a
legitimate way.
Mrs. Lummis. Right.
Ms. Lerner. And it's really, really hard to know the extent
of the over time. What I can tell you is that at least in three
of the cases that we have, they are at, you know, headquarter's
positions, where there shouldn't be a need to be taking this
particular type of overtime, where people are doing training,
where they are primarily desk jobs. Doesn't mean that folks
aren't using AUO in an appropriate way in other places. But it
is a systemic problem, and it needs to be looked at department
wide. And so I take, you know, some solace in the fact that
they are doing this review, that they do seem serious. I think
that Congress' interest is going to help spur, you know, a
remedy.
Mrs. Lummis. Thank you. Thank you.
Ms. Lerner. And that may make a difference this time.
Mrs. Lummis. And thank you all. I know that this is hard. I
appreciate it.
Thanks, Mr. Chairman. I yield back.
Mr. Chaffetz. I thank the gentlewoman.
I will now recognize the gentleman from Massachusetts, the
ranking member, Mr. Tierney, for 5 minutes.
Mr. Tierney. Look, some of this just needs plain English
and direct talk on that. But Ms. Emerson and Mr. Vitiello, I
notice that we didn't get your testimony before this hearing,
which is totally unhelpful. So I won't make you name your
legislative liaison with Congress now and embarrass them unduly
because I know it is not all your fault, but I think you might
take this back to the department or whatever. Next time, there
will be a joint effort to make sure that there are some
repercussions for people not cooperating. It is just indicative
of how late it has been to respond to these issues since
January, all the way through. But you should know that if we
ask for something, we are going to have a hearing, it is a
courtesy to you to give you advanced notice. You owe us the
courtesy back to give us the advanced testimony so that we can
properly prepare.
Mr. Judd when did you first go to work for the agency?
Mr. Judd. September of 1997.
Mr. Tierney. So, in 1997, you were basically induced into
your situation by knowing that you are going to get your base
pay, plus up to 25 percent on that, because that was part of
the package that they told you about when you were employed. Is
that correct?
Mr. Judd. That is correct.
Mr. Tierney. All right, so we have had this problem now
through three administrations, so it is not political. This is
a systemic problem, and this has been ongoing.
And if the agents are perceived to not being paid enough
for a salary or whatever, why has it never been a case somebody
comes to Congress in the appropriations process and just says,
in order to recruit people, we have got to pay them X amount of
dollars more than we are paying now or we will have a serious
recruitment problem? Anybody want to tackle that one?
Mr. Vitiello. I would like to be a little precise, as it
relates to recruitment and job announcements, the idea that the
work is unpredictable and that it will exceed regular shift
hours has to be advertised so that we are truthful and we are
attracting people who recognize this.
Mr. Tierney. I am going to just have a colloquy with you. I
hope you don't take it as interrupting. But yes, I understand
that, but this is representation that people are saying was
made, not that you are going to have irregular hours, but
basically, you can count on 25 percent extra pay. And you know,
that is just not the best way to do business. I think you can
agree on that.
Mr. Vitiello. I agree. I think we need to be more precise,
but the object of those words in the recruitment announcements
is to put folks on notice that the work is irregular.
Mr. Tierney. And the result has been that everybody has
been led to believe that it is automatic and that there is
their pay, plus 25 percent more.
Mr. Vitiello. Well, the fine----
Mr. Tierney. If I am going to work for that agency, because
I am really not going to get paid the base that they are
talking about; I am going to get paid 25 percent more than
that. That is what we have to attack.
I appreciate Mr. Chaffetz' legislation. We are going to
review it thoroughly, but I am hoping we are not legalizing an
already bad situation and that if there is an adjustment that
has to be made in compensation in order to make sure that we
get the recruitment we need, that is how we ought to address
it. Is that statute at 3463 the best way, or is there some
other way that we ought to be doing it? But we are going to
have to have some directness and honesty in advertising here in
bringing people on board so that we have an expectation when
budgets are being done as to what we are going to meet in that
obligation.
Ms. Emerson, you--I appreciate that they send you out here
as a sacrificial lamb and put you in a difficult position. We
really would like to get somebody who is responsible for that
department, if there is anybody that is willing to accept
responsibility. But the real problem seems to be, when given
specific instances of abuse, the agency sets off on a broad-
scope investigation of the process, which is fine. Ms. Lerner
says it is well overdue. But who is dealing with the specific
investigations into those incidents that were reported and the
retaliation that occurred? Is there a bifurcation of those
investigations?
Ms. Emerson. It is my understanding that those allegations
are being--well, I know they are being looked at through the
Office of General Counsel in the department-wide review, but
they are also being handled because they are component specific
by CBP.
Mr. Tierney. Okay, would you have the department provide to
this committee the exact status on each aspect of those
investigations, the component ones and the individuals involved
and the broad--we want it right where it is. We are not going
to wait months if we can help it. We would like to know, to
this day, where is that investigation? What have you found so
far? What is left to be done on that investigation, by whom?
All right, and who is the ultimate responsible person to
bringing this home to a final date, and that would be very
helpful. Will you do that, please?
Ms. Emerson. Okay.
Mr. Tierney. Okay, is there anybody, Mr. Vitiello, Ms.
Emerson, is there anybody in the department responsible for
reviewing the general way that we pay people, you know, other
than this wide review of AUO, to come to Congress with a
recommendation that perhaps we ought to have an entirely new
payment system for people so that, you know, we get away from
things that are ambiguous, like the AUO, all of those things,
and get to a payment system where people can expect how it is
they are going to get paid and know how that is going to go? Is
anybody doing that kind of review?
Mr. Vitiello. So, I think the work that we did post the
2008 findings led us to try to structure, train, and do better
with the layers of management that review this time and how it
is claimed, but we have also recognized that CBP, that a
legislative fix was in order, that we wanted to structurally
reform the system to give us the flexibility to change the
compensation system to meet the mission in a better way.
Mr. Tierney. Well, I think we have to look at, A, one
alternative is how you might restructure AUO; two, whether you
have to replace it with something else; and three, how is it
being used in the recruitment of people? What is specifically
being said by inference or directly?
And if I can ask one further question, Mr. Chairman, have
your indulgence on that.
Mr. Judd, these individuals against whom the complaints
were originally alleged, the people that were at the academy,
for instance, that really aren't out in the field and don't
have that problem of, you know, traveling back and forth
whatever, what is your organization doing with respect to those
individuals?
Mr. Judd. Those individuals are management officials.
Therefore, I have no contact with them.
Mr. Tierney. They are not part of your group?
Mr. Judd. No, they are not.
Mr. Tierney. Okay. Thank you very much.
I yield back.
Mr. Chaffetz. Thank you.
I now recognize the gentleman from Florida, Mr. Mica, 5
minutes.
Mr. Mica. I hate to say it, it is kind of like ObamaCare,
but sort of the same with DHS: I told you so.
I gave a speech in this committee when we created the
Department of Homeland Security, and I said, whoever thinks
that bringing 22 agencies together and over 200,000 people
would be more efficiently operated is dreaming. Most of you--
Ms. Emerson, do we still have over 200,000 in DHS?
Ms. Emerson. Yes, from what I understand, we have
approximately 230,000 employees at DHS. And as you said, it is
the third largest Federal agency.
Mr. Mica. And they have got 66,000 in TSA; probably close
to 60,000 Coast Guard. How many in Customs and Border Patrol
now?
Mr. Vitiello. Approximately 65,000.
Mr. Mica. 65,000, okay. For the most part, you guys do a
pretty good job. I commend you. Some tough assignments.
But it is tough to manage that many people. Do you do a
pretty thorough job, you think, of reviewing the qualifications
of folks before you hire them, Ms. Emerson?
Ms. Emerson. At DHS as a whole?
Mr. Mica. Yeah, well----
Ms. Emerson. I would say each----
Mr. Mica. H-O-L-E, but W-H-O-L-E, go ahead.
Ms. Emerson. As a whole, yes, I would say so. Each
component has their own HR operation, organization.
Mr. Mica. Okay. So Customs and Border Patrol, the 65,000,
they would review those folks. I ask that because I am not
sure, some of these people are properly vetted. But you would
make a decision, for example, if people are put on
administrative leave for some violation, whether they continued
to get paid. Would you make that decision?
Ms. Emerson. That would be handled by the component.
Mr. Mica. Okay. Well, what troubles me is--and the subject
of this hearing is, again, some abuses in overtime and some
other payments--I am concerned that DHS still hasn't fired--I
have got a headline here--a black supremacist who called for
mass murder of whites. There is an employee who was a Customs--
let's see, his title was immigration and customs enforcement
officer. Are you familiar with this case at all? It is a
gentleman by the name of Kimathi?
Mr. Vitiello or Ms. Emerson?
Mr. Vitiello. Not specifically. I have seen the media
accounts of it as well.
Mr. Mica. Well, I am wondering if you had the authority--I
mean, this guy--when you get a report of some misconduct or a
question, how long does it take to move forward and
investigating it?
Mr. Vitiello. So we take all of the allegations of
misconduct seriously.
Mr. Mica. Especially in enforcement, right?
Mr. Vitiello. Correct. Correct.
Mr. Mica. I am told that there were complaints as of 2011,
since 2011. In fact, one of his supervisors says everybody in
the office is afraid of him, and he wasn't suspended until
August of this year. You are not aware of that case?
Mr. Vitiello. I have no direct knowledge of that.
Mr. Mica. Would you let us know about that? Is that
customary to take 2 years before someone is suspended? Some of
the things that he did here. On his Web site, he said, ``In
order for black people to survive in the 21st century, we are
going to have to kill a lot of whites.'' He said that ``whites
and their enablers''--this is from his Web site--``like
President Obama are trying homosexualize black men in order to
make them weaker.''
He went on with other hate things against Zionists and
others. This is an enforcement officer of, again, your agency.
Mr. Vitiello. No, it is not--that is not a CBP employee.
Mr. Mica. It isn't?
Mr. Vitiello. It is not.
Mr. Mica. Homeland Security then?
Ms. Emerson. That employee works for ICE.
Mr. Mica. Under DHS. Are you aware of it?
Ms. Emerson. Yes, sir, I am aware.
Mr. Mica. Now, do you have the tools-- now this guy--what
is frosting people is this guy is still getting paid. He is
still--he is getting a salary. His salary is $115,731. Do you
have the authority to suspend pay? Does it take 2 years when
employees report misconduct or this kind of activity to put
someone on administrative leave?
Can you answer, Ms. Emerson?
Ms. Emerson. From my understanding, and I have also seen
some reference of it in the media, that case is being handled
by ICE, their HR shop, and also their Office of General
Counsel.
Mr. Mica. But that is under you. Can you report--my time is
about up. Can you report back to the committee? Again, I don't
have to get--I know you don't want to get specific with the
personnel issue with an individual, but I want to know if you
have the--why it took so long, again, from August, 2 years ago
in 2011, to September, I guess it was, or August, 2 years, and
then when they are put on administrative leave and you have got
this kind of record, and that particular position, why someone
cannot be terminated, their pay. And if you don't have the
authority, what it would take that we could do to hold these
people responsible. That is an important position, and DHS is
an important role.
Again, I get these complaints from my constituents in the
media report, and the public is outraged, so I would appreciate
your responding to us.
I yield back.
Mr. Chaffetz. I thank the gentleman.
I now recognize the gentlewoman from California, Ms.
Speier, for 5 minutes.
Ms. Speier. Mr. Chairman, thank you.
You know, this is very reminiscent of a hearing that I
chaired when I was in the State Senate in California, when the
correctional guards were playing a similar game, which was one
in which they would call in sick one day, and a friend would
work overtime. And then the following week, the friend would
call in sick, and the colleague would work overtime. This is
outrageous.
And Ms. Lerner, you pointed in your comments that this is
not just an isolated incident, that, in fact, there are--there
have been seven whistleblowers at six facilities within the
department that have complained specifically about AUO, is that
correct?
Ms. Lerner. That's right. We don't know how big a problem
this is, but----
Ms. Speier. Well, I can tell you right now, it is big. If
you have already heard from six offices, I can guarantee you
that it is a wink and a nod, and it is something that is going
on throughout the department. And it has got to stop. Now, you
mentioned in your comments that you are unclear about whether
or not the agency is ultimately willing or able to make the
corrective actions. Can you explain that to us, why you think
they are unwilling?
Ms. Lerner. Well, the track record, you know, the 5-year
long notice that they have had. This is not a new issue that
has come to their attention for the first time. I think the
difference this time, though, may be having congressional
interest.
Ms. Speier. Right, sometimes that always----
Ms. Lerner. And so I really want to thank this committee
for its interest in this important issue.
Ms. Speier. So my concern are the whistleblowers who come
forward, who then go through physical, health deterioration,
because they had the guts to come forward and, as Mr. Florence
exhibited today, had a very difficult time even reading his
comments. So I think it is imperative, and I say this to all of
you representing the department, this has got to be fixed.
Human beings who come forward and make points like this that
show that there is abuse need to be heard and the issue needs
to be resolved.
And if. in fact, it is not going to be resolved internally,
then Congress will take steps. So my first question to those of
you within the department is, we all recognize the AUO has got
to be fixed. The question is, whether or not you can do it
internally, or do we need congressional action to do it?
So I guess to Ms. Emerson, and Mr. Vitiello, do you have
any thoughts on the legislation that has been introduced by
Chairman Chaffetz, and whether or not it is workable, or
whether or not you could support it?
Mr. Vitiello. We look forward to working with yourself and
others on the committee and the chairman to give a full
analysis that would be--that would look at all of the aspects
of it and can comment more fully in support.
Ms. Speier. Well, have you looked at the bill?
Mr. Vitiello. I have seen it.
Ms. Speier. And what do you think of it?
Mr. Vitiello. I think it allows for the--an ability to meet
the mission much like we can now, the flexibility to assign and
then availability to flex beyond the scheduled shift, yes.
Ms. Speier. Mr. Vitiello, were you aware of the abuse of
AUO before it was brought to the attention of the department by
the whistleblower?
Mr. Vitiello. This has actually been a challenge for CBP
and the Border Patrol for quite some time.
Ms. Speier. Okay, so you knew about it but didn't fix it.
Mr. Vitiello. Well, I would like to separate what is termed
as ``abuse.'' Misconduct by employees, people who are claiming
hours that they don't work or doing things at work that are
inconsistent with the mission, is recognized as misconduct and
is referred to authorities for investigation and a follow up.
We do that on a regular basis.
Ms. Speier. Yeah, but that is different because this is a
ruse that is created, correct?
Mr. Vitiello. We have looked at AUO structurally, and we
have tried to improve training. We have tried to improve
awareness. We have issued guidance to the field and to our
offices to better manage it and monitor it. We have taken steps
in fact this year to reduce the amount of the costs in it. But
yet we still are challenged and the findings suggest that we
still have a lot more work to do.
Ms. Speier. Ms. Emerson, let's presume that the bill passes
and gets signed into law. What do you think the effect will be
within the department?
Ms. Emerson. Well, currently within the department, we are
reviewing that to look at it to make sure that it is physically
sound so that, you know, it is not costing additional sums. We
wouldn't have to increase----
Ms. Speier. How can it cost additional sums if you are
going to restrict the amount of AUO?
Ms. Emerson. Well, there are experts in the department who
are looking at that. I have read it, but I am not an expert in
that area in terms of the monetary issue, but----
Ms. Speier. All right, enough said. You are shaking your
head. Would you like to comment?
Mr. Judd. Yes, I would. What we are offering, what this
bill is offering right now, you are getting an hour and a half
of work out of agents on the border to secure the border that
is broken. The border is broken. What we are giving you is, we
are giving you 2 hours for the same pay that you are getting
for an hour and a half. That is fiscally responsible and for
anybody to say that it is not and that it needs to be reviewed
is outrageous. It is an outrageous claim. Okay, this is
fiscally responsible. It saves $1 billion over what we have
previously done in the past. And frankly, I am asking you for a
pay cut. I am coming to you and I am telling you, agents are
willing to take a pay cut to secure--to better secure the
border.
We are not talking about AUO abuses amongst frontline
agents. We are talking about AUO abuses amongst management. And
even though we are talking about AUO abuses amongst management,
we are coming to you and saying, Look, we will fix the problem
that management created; we will give you the fix, and the fix
is there, and it saves the taxpayers money, and it secures the
border.
It is--I don't understand how the administration can
possibly say that we have to review this when they have
proposed similar--in appropriations, similar measures, and now
all of a sudden we have to review it. I don't understand.
Ms. Speier. Well, I think there are others here that
disagree with you, Mr. Judd.
My time is expired.
Mr. Chaffetz. Thank you.
I now recognize the gentleman from South Carolina, Mr.
Gowdy for 5 minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
Ms. Emerson you are an attorney, correct?
Ms. Emerson. Yes, sir.
Mr. Gowdy. I am a simple-minded person who tries to assign
commonly understood definitions to words. What does the word
``uncontrollable'' mean to you?
Ms. Emerson. That would mean that it would be unscheduled.
Mr. Gowdy. So ``uncontrollable'' means unscheduled? So I
could not schedule to write a report after hours, and that
would count as uncontrollable? Is that your testimony?
Ms. Emerson. It would depend on the situation.
Mr. Gowdy. How about a report that has no deadline
whatsoever?
Ms. Emerson. Again, it would depend on the situation.
Mr. Gowdy. Well, how in the world does that depend on the
situation? If there is no deadline, how is it uncontrollable?
Why can't you do it the next day during your normal working
hours?
Ms. Emerson. That is possible.
Mr. Gowdy. Possible? Possible? How about watching movies,
is that controllable?
Ms. Emerson. As was referenced earlier, that would be seen
most likely as misconduct and would be handled separately.
Mr. Gowdy. Most likely. How about watching television, is
that controllable?
Ms. Emerson. It would depend on the situation.
Mr. Gowdy. Depend on the show or depend on the situation?
Ms. Emerson. It would depend on the situation.
Mr. Gowdy. Well, Ms. Emerson, most folks don't go into law
enforcement for the money. It is an incredibly difficult job
that takes its toll on every single aspect of life. So they
don't go into it for the money, and they don't go into it for
the easy hours or the prestige. And it is for that reason and
many others that I have a tremendous amount of respect for the
women and men in law enforcement. It is an incredibly hard job.
But people who live under the laws fully expect those who
execute and enforce the laws to abide by them. And your
definition of ``uncontrollable'' would make a law school
professor blush. Watching television is not uncontrollable.
Watching movies is not uncontrollable. Writing reports with no
deadline is not uncontrollable. Do your agents ever testify in
court hearings, Ms. Emerson?
Ms. Emerson. If you--yes. Yes.
Mr. Gowdy. Would you rather me ask the agent? Do you ever
testify in court hearings?
Mr. Vitiello. I have.
Mr. Gowdy. Do you ever swear out search warrants or arrest
warrants?
Mr. Vitiello. I have provided affidavits for that purpose.
Mr. Gowdy. Right, and an affidavit is under oath, right?
Mr. Vitiello. Correct.
Mr. Gowdy. You ever testify before a grand jury?
Mr. Vitiello. I have.
Mr. Gowdy. You ever testify in sentencing hearings?
Mr. Vitiello. I don't believe so.
Mr. Gowdy. But your agents could.
Mr. Vitiello. Yes.
Mr. Gowdy. All right. And the common theme in all of that
is the credibility of the agent, right?
Mr. Vitiello. Correct.
Mr. Gowdy. Do you agree that acts of deceit or dishonesty
or fraud could be used to impeach the credibility of a law
enforcement agent?
Mr. Vitiello. I do.
Mr. Gowdy. In fact, it often is, right?
Mr. Vitiello. Correct.
Mr. Gowdy. And so when you are in front of a jury and you
are testifying that you witnessed X, Y or Z happen and your
credibility is being attacked because you committed what some
might conclude to be an act of dishonesty, that hurts the
entire cause of law enforcement, doesn't it?
Mr. Vitiello. It does.
Mr. Gowdy. Do you agree with Ms. Emerson's definition of
``uncontrollable''?
Mr. Vitiello. I think that there are situations within the
work that require agents to flex beyond their shift. What is--
what was pointed out in the findings and what CBP agreed needed
to be worked on were these allegations of misuse of time,
whether within AUO or without it. And so we have taken that to
heart. Those matters will be referred to the Internal Affairs
investigative process and then dealt with appropriately after.
Mr. Gowdy. Well, I say this with all due respect as
somebody who is crazy about law enforcement and respects the
women and men who go into it, once you lose your credibility,
it is almost impossible to get it back. There was a German
philosopher that I think the chairman is a fan of, Friedrich
Nietzsche, who said, I'm not mad that you lied to me; I'm mad
that I can't believe anything else you ever tell me. So deceit
and dishonesty matters, and it impacts your ability to do your
job and the women and men who also wear uniforms, whether it is
a municipal police officer or a DEA agent. So I hope this gets
fixed, and I hope it gets fixed real soon, and I hope the
definition of ``uncontrollable'' becomes something that the
jury, the American people, can understand, because watching TV
and watching movies and writing reports with no deadline
doesn't fit that definition.
I yield back, Mr. Chairman.
Mr. Chaffetz. I thank the gentleman.
I will now recognize the gentlewoman, Ms. Maloney for 5
minutes.
Mrs. Maloney. Well, first of all, thank you, Mr. Chairman,
and ranking member for calling this meeting. And I read a
recent Washington Post article about the misuse of
administratively uncontrollable overtime at the Department of
Homeland Security. And I would like unanimous consent to place
it in the record.
Mr. Chaffetz. Without objection, so ordered.
Mrs. Maloney. I would like to follow up with a little
bipartisan support for Mr. Gowdy's statements and ask Special
Counsel Lerner, in your report, you questioned, as he did, the
ability and willingness of the Department to address the AUO
problem. And can you explain for us the reasoning underlying
your concern? Roughly 89 percent of those workers in the
Situation Room were claiming overtime, yet they were watching
movies. Could you elaborate, Ms. Lerner, on your concerns?
Ms. Lerner. Sure, I mean, the extent of the problem
certainly goes to my concern about solving the problem, because
it is so widespread. We know that there are 22,000 Border
Patrol agents in CBP alone who are AUO eligible. We know that
there is $500 million in overtime at CBP alone. If even a
fraction of that amount is improper, we are talking about a
huge amount of money in the budget.
So it's a widespread problem, but I also want to emphasize
that it's a problem along a continuum, I think. Based on the
information that we have now, there may in fact be some
fraudulent use of overtime where folks are claiming it who are
not, in fact, working at all. There may be people who are
working but not doing AUO-certified activities.
And just so the record is clear, the regulations are very,
very clear about the definition of what irregular, what type of
work is qualified for AUO. It has to be irregular and
occasional circumstances, where, for example, the failure to
stay on duty would equal negligence. So, you know, we don't
have to guess at what the regulations are intending for this
type of overtime. It is very clear.
And I think it is terrific that this committee is focused
on this, and I think that the statements from DHS have been
positive in terms of recognizing the problem. Lots of times we
get reports back from agencies that don't even admit that there
is a problem. So, I'm hopeful that that will lead to change,
but I think that it is an entrenched problem, it is a
widespread problem, and it is part of the culture, and it is
probably going to take some sort of change in the law to solve
it.
Did I answer your question?
Mrs. Maloney. Yeah, but basically you are saying that they
could take steps right now to address it. They could right now
crack down on those areas that are clearly not eligible, as he
mentioned, you know, putting off the time for your reports,
movies, sitting there. Given the problems that we have in our
budget with sequestration and others, it's something that we
could address already in the agencies. And we have run through
it.
I just would like to ask all the panelists to put in
writing, Ms. Emerson and Vitiello and Judd, what you are
already doing right now to address it, and get it back to the
committee to review as we proceed to go forward.
But I want to focus on one of the whistleblowers who was
aware of these abuses for years, but then he really began to be
concerned after sequestration kicked in and was implemented
this year, and this particular person was worried that
employees were losing work and important programs were being
cut while other employees were watching television and
continuing to get this $500 million that you are talking about
and to receive improper AUO payments, which is outrageous.
So, I would like to ask Ms. Emerson and Mr. Vitiello, as
you know, sequestration was implemented this year and current
budget talks are literally underway right now for the coming
years, 2014 and 2015, and we are also looking at alternatives
to replace sequestration. But if Congress does not replace
sequestration cuts, further cuts will be imposed on agencies,
including the Department of Homeland Security, for fiscal year
2013. And CBP was able to avoid furloughs. But are you
concerned that the Department may have to furlough employees
and cut important programs while AUO continues to be routinely
used and authorized for administrative tasks as the
whistleblower pointed out? And why aren't you cracking down on
these abusive practices of AUO? Ms. Emerson and Mr. Vitiello?
Mr. Vitiello. So, the allegations of misconduct or the
misuse of the funding is being investigated by Internal
Affairs. There is a process for that and that will be dealt
with appropriately.
As it relates to the budget, most of the AUO that's used by
the Border Patrol in that account is used in the field. Very
little of it is used at headquarters. And we are in the middle
of reviewing CBP-wide and then the Secretary has ordered review
for the Office of General Counsel across the Department. Once
those reviews are complete, we at CBP can rewrite the
directives and change the instructions to make them more
applicable.
Mrs. Maloney. Yeah, okay. As I understand it, during
sequestration CBP originally considered eliminating all AUO and
ended up cutting back on the amount of AUO. Can you tell us why
and how that decision was made?
Mr. Vitiello. So, when we did the planning for the budget,
one of the planning scenarios was to decertify AUO, and AUO-
earning employees did in fact get a potential decertification
letter. We were able to make significant cuts in other areas,
including overtime, to avoid both furloughs and
decertification.
Mrs. Maloney. My time has expired.
Mr. Chaffetz. Thank you.
I will now recognize myself for 5 minutes as we start
another round, and then we will turn the chair over to Mr.
Bentivolio.
Ms. Emerson, how many people within your Department? The
one that you are responsible for, Human Capital, how many
people are in your Department?
Ms. Emerson. In the Department?
Mr. Chaffetz. Yes.
Ms. Emerson. Approximately 230,000 employees.
Mr. Chaffetz. But how many within your----
Ms. Emerson. In OCHCO, in the Office of the Chief Human
Capital Officer? Approximately 210.
Mr. Chaffetz. Two hundred ten. And how many attorneys does
Homeland Security have?
Ms. Emerson. I'm not sure. I am an attorney, but I am not
acting as an attorney for the Department of Homeland Security.
So, let me just clarify with that question. I'm not acting as
an attorney for DHS.
Mr. Chaffetz. Ms. Lerner, how many people within the Office
of Special Counsel did you have working on this?
Ms. Lerner. Well, you are looking at the main one right
here.
Mr. Chaffetz. Yes.
Ms. Lerner. And, you know, we have only about 8 people in
our disclosure unit.
Mr. Chaffetz. Okay, so you have 8 people. You have 230,000.
You have a couple hundred that you are responsible for. There
are undoubtedly hundreds, if maybe not thousand-plus attorneys.
These women right here were able to figure this out in pretty
short order. They focused on it. Focus determines reality.
Ms. Lerner, tell me about the Situation Room. One of the
highlights here is the Situation Room in Washington, D.C. What
it is? How many employees are we talking about? What happens
there in the Situation Room?
Ms. Lerner. I'm sorry, I don't remember offhand how many
employees. It is not a huge office. I think it is under 100.
But we know that about 90 percent of the time people were
taking 2 hours of AUO who worked in the Situation Room.
Mr. Chaffetz. Every day?
Ms. Lerner. Every day, yeah, about 90 percent of the time.
Mr. Chaffetz. So, 90 percent of the time the people working
in the Situation Room--now, Situation Room connotates it is
fairly important, correct? What were they doing when they took
an extra 2 hours?
Ms. Lerner. Well, Mr. Ducos-Bello, who was the
whistleblower from the Situation Room, alleged that he observed
people watching TV, being on the Internet, relaxing, and that
was why he felt so compelled to come forward. He felt that
there was a real waste.
Mr. Chaffetz. And you fairly quickly----
Ms. Lerner. On a continuum that would be----
Mr. Chaffetz. You fairly quickly were--how long did it take
you to come to that conclusion, that this was indeed a valid
allegation?
Ms. Lerner. What we look at again is a substantial
likelihood of the allegations. And before we make a referral to
the agency we do a review of the whistleblower's allegations.
Mr. Chaffetz. But you substantiated it?
Ms. Lerner. We don't actually substantiate them. It has to
meet that threshold, and we decided that Mr. Ducos-Bello's
allegations met that threshold for referral to the agency for
investigation. And that probably took us a couple of months.
Mr. Chaffetz. And they came back and actually confirmed it?
Ms. Lerner. They did come back and confirm it, yep.
Mr. Chaffetz. So now that they have confirmed it, the
allegation was made, it was investigation by the Office of
Special Counsel, has anybody been fired? Ms. Emerson?
Ms. Emerson. That's being handled by the component. That's
not handled by my office.
Mr. Chaffetz. Who is the component?
Ms. Emerson. The component is the Border Patrol.
Mr. Chaffetz. So what's your responsibility here? I mean,
if you are the chief of human capital and you have got
allegations of fraud and misuse of dollars, potentially
criminal--or potential, you know, breaking of the law--you just
wash your hands of it?
Ms. Emerson. Well, actually, I'm involved in the
Department-wide----
Mr. Chaffetz. Here we go. We are in the circle again. Let's
go back to what Mr. Gowdy was talking about. There's valid use
of AUO and there's then an abuse of AUO. Explain to me in your
own words what an abuse of AUO is.
Ms. Emerson. Well, some of the things that we heard about
and we saw in Ms. Lerner's reports could very well include
employee misconduct. And in those instances----
Mr. Chaffetz. Well, explain to me employee misconduct, give
me some examples, give me a definition of what a misuse of AUO
would be.
Ms. Emerson. Well, from what I'm understanding, those are
currently under investigation.
Mr. Chaffetz. No, no, no, no, no, no. You are not
investigating the definition. We have given you weeks' notice,
in fact years' notice, that this is an issue. You are
highlighting and confirming this committee's concern, and that
is that you haven't taken it seriously. What is the definition
of AUO, and what is the definition of an abuse of AUO?
Ms. Emerson. The definition is provided by in the
government-wide regs and in the laws. 5 U.S.C. Speaks on it, as
does the implementing regulations, 5 CFR 550, and it sets out
the definition for AUO.
Mr. Chaffetz. And what's the consequence if you violate the
AUO?
Ms. Emerson. In terms of employee misconduct, that is
handled by the component.
Mr. Chaffetz. So they have full discretion? They just give
a wink and a nod and let it keep happening?
Ms. Emerson. That could lead to disciplinary action.
Mr. Chaffetz. Which could be what?
Ms. Emerson. Up to and including removal from Federal
service.
Mr. Chaffetz. Has that ever happened?
Ms. Emerson. I would defer to the Border Patrol for that.
Mr. Chaffetz. I mean, AUO is--we have other departments and
agencies, too. Are there any sort of investigations happening
from your Department, or the Department of Homeland Security in
other--we are focused on CBP here--any others that you are
investigating for abuse of overtime?
Ms. Emerson. In the Department-wide review we are looking
at the Department component-by-component policies and
procedures for AUO. It is a Department-wide review, including--
--
Mr. Chaffetz. I'm going to ask one more time as I conclude
here. What is an abuse of the AUO?
Ms. Emerson. The abuse of the AUO in terms of employee
misconduct could be a number of issues, some of which may be
spelled out in the OSC reports, but those are currently being
investigated and they would be handled by the component.
Mr. Chaffetz. You can't seem to answer that question, can
you? Defining an abuse of the AUO. One more time, do you have
any--don't tell me it's being reviewed. What would constitute
an abuse of the AUO?
Ms. Emerson. It would depend on the situation. It really
would.
Mr. Chaffetz. This is unbelievable, and unbearable, and it
is a total lack of leadership throughout the Department and
agency.
I yield back my time and recognize the gentleman from
Massachusetts, Mr. Tierney.
Mr. Tierney. Ms. Emerson, let me see if I can help you out
a little bit. Ms. Lerner's group found that there was a
reasonable belief that the allegations were accurate. I should
maybe ask Ms. Lerner that. Is that your standard?
Ms. Lerner. Substantial likelihood----
Mr. Tierney. Substantial likelihood. Ms. Lerner found that
there was a substantial likelihood. Now it is up to your people
to determine whether or not it actually happened, right? She
sends it to you as a finding that there is a substantial
likelihood it happened. Your group then has to determine
whether or not it did happen.
Ms. Emerson. It actually goes to the Office of General
Counsel. That's not my group.
Mr. Tierney. Okay.
Ms. Emerson. The Office of General Counsel is actually the
one that receives the Office of Special Counsel reports. And
they usually share that information with the IG, and then they
deal with the component regarding the issue. So those issues
specifically do not come to my office.
We have been tasked, because it is a Department-wide review
of AUO throughout the Department component by component, my
office has been asked to assist in that matter. But the actual
discipline of any employees from that goes to the component.
Mr. Tierney. All right. So as unusual as it may seem to us,
the fact that you are the chief officer here has nothing to do
with discipline or violations or anything like that. You are
strictly policy. Is that the deal?
Ms. Emerson. We have oversight, and certainly if a
component came to us to ask for advice and guidance, or if we
are directed to handle a situation involving a disciplinary
action----
Mr. Tierney. All right, but you don't check to see whether
or not they properly handle it? You don't ever take
responsibility to make sure that each component actually does
its work?
Ms. Emerson. Only if request----
Mr. Tierney. Request from who?
Ms. Emerson. From leadership. For example----
Mr. Tierney. All right. So, please, so it goes to somebody
else, and they are responsible for it, and you have nothing to
do with it after that. Even though you are the chief officer of
this thing, you never, ever take a personal responsibility
without being requested by somebody else to see whether or not
there was a continuing investigation that came to a conclusion
with actions taken as a result of that conclusion?
Ms. Emerson. In this situation----
Mr. Tierney. In any situation.
Ms. Emerson. It depends on the situation.
Mr. Tierney. Forget it. Forget it. I was trying to help you
out, and beyond help. All right, beyond help, disturbingly so.
So now we have the Internal Affairs of CBP, Mr. Vitiello,
do they have a role here? They are the ones that are
responsible for investigating those specific referrals from
Special Counsel, am I correct?
Mr. Vitiello. That's correct.
Mr. Tierney. Okay. Fifty percent of their employees, 50
percent of their employees receive AUO.
Mr. Vitiello. In the Internal Affairs, yeah, correct.
Mr. Tierney. Do you have a conflict of interest problem
there?
Mr. Vitiello. I don't believe so.
Mr. Tierney. Why not?
Mr. Vitiello. Well, that's the compensation system that was
available when those positions were filled and people were
hired for them.
Mr. Tierney. Yeah, but I'm hearing from Mr. Judd that back
into 1996, at least, it seems that, you know, everybody sort of
was in on the game here. And so are they going to start looking
at this thing saying, well, it's the game, everybody is in on
it, we take advantage of it, they take advantage of it? That
may color the way they proceed, no?
Mr. Vitiello. I don't believe so.
Mr. Tierney. So $22,000 per employee per year on this
system and you don't think that they are going to have some
loss of objectivity from the fact that they are all in on the
process that allows this to happen?
Mr. Vitiello. They are responsible to claim the hours that
they work, and the nature of their work sometimes exceeds the
regularly----
Mr. Tierney. The nature of everybody's work sometimes
exceeds it, but we found abuse here, and some of the abuse we
found out is policy, almost. In fact, that people are
encouraged do it, that they would be there. So I just have a
problem with it. I think you ought to have a problem with it. I
hope somebody in the Department takes that into account when
they are looking at that.
Ms. Lerner, do you have a problem with that?
Ms. Lerner. I mean, I think the problem is that there are
folks who are at headquarters offices who are not, you know, on
the border, who are taking this leave. But we also have to be
careful not to throw the baby out with the bath water. If there
are folks who are actually legitimately taking or using AUO, by
all means, but it seems that there needs to be a real effort on
the part of DHS to figure that out, and you could put a stop to
it right away just by saying anyone who is not working on an
irregular or, you know----
Mr. Tierney. Well, they can interpret the statute. I guess
that's the problem here. We have this ongoing general review
about whether or not the whole system works, but then it seems
to be nobody is saying like, look, from this day forward, no
matter what the understanding was that Mr. Judd referred to
that has been going on as a wink and blink, and this is an
extra 25 percent for everybody on that, whatever that is,
somebody ought to come down with an affirmative policy
statement that says from this day forward we are going to
interpret this law very, very strictly, as Mr. Gowdy was
putting forward. We all know what uncontrollable is. From this
day forward, whatever the deal was before, it is over, and now
while we are doing our overall policy that's going to be the
implementation.
Ms. Lerner. If I could just add----
Mr. Tierney. Sure.
Ms. Lerner. --there are five more reports that are due to
us, and we may have more information from the agency when we
get those reports about what remedial efforts they are taking.
Mr. Tierney. Okay.
Ms. Lerner. So maybe we will get more answers shortly.
Mr. Tierney. Wishful thinking.
Thank you. I yield back.
Mr. Bentivolio. [Presiding] Thank you, Mr. Tierney.
I'm listening to you, Ms. Emerson, and Mr. Tierney is
trying to give you all the help you need. You said you were an
attorney?
Ms. Emerson. I have a JD, member of the bar.
Mr. Bentivolio. Right.
Ms. Emerson. But in my capacity as CHCO, I'm not an
attorney, and I don't have attorneys who work for me in my
organization.
Mr. Bentivolio. I understand. Let me ask you a question. A
border patrolman arrests somebody within an hour of the end of
their shift. They have to drive a distance to process the
criminal or the person. And they take about an hour and a half
beyond their shift to complete that. Is that fair overtime?
Ms. Emerson. I would like to defer to the Border Patrol.
Mr. Bentivolio. It's a very simple question. He is in the
process of doing his job, which is to protect the border, him
or her, and they have to process somebody and go into an hour
and a half of overtime. In your opinion, is that legitimate
overtime?
RPTS COCHRAN
DCMN CRYSTAL
[12:02 p.m.]
Ms. Emerson. It sounds like it would be.
Mr. Bentivolio. It is very simple. It is, beyond a
reasonable doubt. I have never worked Border Patrol. I know
what responsible and necessary overtime. If he is processing
and doing his job and he needs that additional hour and a half,
it is legitimate overtime. Would you agree, sir?
Mr. Vitiello. I would.
Mr. Bentivolio. Okay.
Another officer, end of his shift, he is not processing, he
is not doing anything, but he wants to put in overtime. And so
he goes on the Internet, does something, maybe checks his
personal email or falls asleep. I think I even read that in one
of these reports. Legitimate overtime or not?
Ms. Emerson. No.
Mr. Bentivolio. Okay. You are an attorney, or have attorney
training. You ever heard of the term plausibly state, boldly
assert?
Ms. Emerson. I am sorry, could you repeat that?
Mr. Bentivolio. Have you ever heard the term or phrase
plausibly state, boldly assert?
Ms. Emerson. No, sir.
Mr. Bentivolio. Okay. It is a lawyer thing, isn't it? Are
you a lawyer, Mr. Tierney?
Mr. Tierney. I am a lawyer.
Mr. Bentivolio. You have heard that before?
Mr. Tierney. Yes.
Mr. Bentivolio. Great.
Is it within your authority to notify when you hear
somebody is abusing their overtime to send a letter to the
Border Patrol or some other agency that comes under your
jurisdiction outlining those problems or situations, put them
on notice, plausibly state.
Ms. Emerson. If it came to my attention, yes, sir.
Mr. Bentivolio. Okay. Well, I have got the impression that
quite a few of these concerns came to your attention.
Ms. Emerson. Actually, they go, because they are coming
from OSC, they go to the Office of the General Counsel, who
then shares it with OIG, the Office of Inspector General, and
then they usually reach out to the component where the alleged
act occurred. I am involved in this situation because it
involves Department-wide review of AUO component by component.
Mr. Bentivolio. Okay. So individually you don't deal with
individual issues?
Ms. Emerson. Usually it depends on what the issue is. But
when it is from the Office of----
Mr. Bentivolio. Abuses of overtime. Blatant disregard for
the ethics of overtime.
And I believe you have training in that, don't you, Mr.
Vitiello? I think I read, since 2007 you train your staff on
ethics and what abuses of overtime are and are not, correct?
Mr. Vitiello. There was specific training issued after the
2008 findings.
Mr. Bentivolio. But it is not working, or it is?
Mr. Vitiello. Well, the findings indicate that we still
have a lot of work to do, that the training in and of itself
isn't sufficient. That is why the internal review that is being
conducted at CBP specific to this issue, a new directive is in
order and we are working on that, and then the Department-wide
review ordered by the Secretary is also in order.
Mr. Bentivolio. Okay. So just for my understanding, because
I am somewhat unfamiliar with your process, but abuses come to
your attention, is that correct, Ms. Lerner?
Ms. Lerner. Abuses come to us when whistleblowers come to
us.
Mr. Bentivolio. Okay, whistleblowers come to you, they
point it out. Do you in turn send some kind of notification or
letter about these abuses to----
Ms. Lerner. The head of the agency.
Mr. Bentivolio. The head of the agency, but not the chief
of human resources?
Ms. Lerner. No. In this case we sent it to then Secretary
Napolitano.
Mr. Bentivolio. Okay. Does the employee who is abusing
overtime get a letter of reprimand that goes in their personnel
file?
Ms. Lerner. We don't have authority for disciplinary
action. They did not report back to us in this case. Sometimes
they do but sometimes--well, in this case----
Mr. Bentivolio. Do you have authority to follow up?
Ms. Lerner. We do have--I mean, statutorily we don't have
it explicitly, but we do follow up. In cases like this we will
ask the agency for supplemental reports. In two of the six
cases that we have outstanding we have asked for additional
information. So, yes, we can follow up.
Mr. Bentivolio. You can, but not always. Who is
responsible----
Ms. Lerner. If we think that the circumstances require
follow-up, we do it. We have done it in many cases since I have
taken over as Special Counsel in 2011. Where an agency promises
to make systemic reforms, we do follow up to make sure that
they are being taken. So, yes, we do.
Mr. Bentivolio. I see I have run out of time. Do you have
additional questions?
Mr. Tierney. No.
Mr. Bentivolio. Okay. I have a few more questions. I would
like to finish up here and then we can adjourn.
In regards to the employees that abuse overtime, do you
counsel the employee? Do you give them a letter of reprimand,
Mr. Vitiello? Did I pronounce that correctly.
Mr. Vitiello. Vitiello, correct.
So when it is established that an employee is engaged in
misconduct, whether for this or other matters, it is referred
and they are put through a process with our own HR department
for discipline, yes.
Mr. Bentivolio. Okay. What is the discipline? Do they have
to give back the money or what? What is the discipline?
Mr. Vitiello. It depends on the allegation. It depends on
what the findings develop.
Mr. Bentivolio. Okay. Are you familiar with the case
studies that I have read that was given to me in the brief?
Mr. Vitiello. Yes. I have considered all the materials that
brought us here today.
Mr. Bentivolio. Okay. Employees using overtime to sleep or
watch the Internet. What happens to that employee?
Mr. Vitiello. It depends on the findings. If those
allegations are proven to be true, then they are put through a
discipline process. And just to give you some data, in 2012
there were 84 cases around AUO that were alleged in CBP in 2012
until today, so in the last 2 years. And the range of
dispositions that I have, according to the reports, oral or
written counseling; closed with no action, which they weren't
substantiated; there is 43 that are still open; and then
grievances filed against. There is one anomaly case which is
still being considered. So that process does work and we have
used it.
Mr. Bentivolio. Well, apparently it is not, because this
has been ongoing since 2007, to my understanding, according to
this briefing.
Mr. Vitiello. But to the extent that the agency is aware of
misconduct, it is referred through those processes.
Mr. Bentivolio. Okay. So on individual cases you are
reprimanding, counseling employees that you found in violation
or improper use of overtime.
Mr. Vitiello. And then we are attempting to do structural
changes to put this issue behind us. That is why we are excited
about the prospect of legislation that gets us to a fix, to put
this kind of issue behind us.
Mr. Bentivolio. Great. Thank you very much. I appreciate
it.
I have no further questions. Any questions?
Mr. Tierney. No.
Mr. Bentivolio. I would like to thank our witnesses for
taking time from their busy schedule to appear before us today.
The committee stands adjourned. Thank you.
[Whereupon, at 12:10 p.m., the subcommittee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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