[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EXAMINING TSA'S CADRE OF CRIMINAL INVESTIGATORS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
TRANSPORTATION SECURITY
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 28, 2014
__________
Serial No. 113-48
__________
Printed for the use of the Committee on Homeland Security
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Available via the World Wide Web: http://www.gpo.gov/fdsys/
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COMMITTEE ON HOMELAND SECURITY
Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Peter T. King, New York Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Paul C. Broun, Georgia Yvette D. Clarke, New York
Candice S. Miller, Michigan, Vice Brian Higgins, New York
Chair Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania William R. Keating, Massachusetts
Jeff Duncan, South Carolina Ron Barber, Arizona
Tom Marino, Pennsylvania Dondald M. Payne, Jr., New Jersey
Jason Chaffetz, Utah Beto O'Rourke, Texas
Steven M. Palazzo, Mississippi Tulsi Gabbard, Hawaii
Lou Barletta, Pennsylvania Filemon Vela, Texas
Richard Hudson, North Carolina Steven A. Horsford, Nevada
Steve Daines, Montana Eric Swalwell, California
Susan W. Brooks, Indiana
Scott Perry, Pennsylvania
Mark Sanford, South Carolina
Vacancy
Vacancy, Chief of Staff
Michael Geffroy, Deputy Chief of Staff/Chief Counsel
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
------
SUBCOMMITTEE ON TRANSPORTATION SECURITY
Richard Hudson, North Carolina, Chairman
Mike Rogers, Alabama, Vice Chair Cedric L. Richmond, Louisiana
Candice S. Miller, Michigan Sheila Jackson Lee, Texas
Susan W. Brooks, Indiana Eric Swalwell, California
Mark Sanford, South Carolina Bennie G. Thompson, Mississippi
Michael T. McCaul, Texas (ex (ex officio)
officio)
Amanda Parikh, Subcommittee Staff Director
Dennis Terry, Subcommittee Clerk
Brian Turbyfill, Minority Subcommittee Staff Director
C O N T E N T S
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Page
Statements
The Honorable Richard Hudson, a Representative in Congress From
the State of North Carolina, and Chairman, Subcommittee on
Transportation Security........................................ 1
The Honorable Cedric L. Richmond, a Representative in Congress
From the State of Louisiana, and Ranking Member, Subcommittee
on Transportation Security:
Oral Statement................................................. 20
Prepared Statement............................................. 3
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Prepared Statement............................................. 3
Witnesses
Mr. Roderick Allison, Assistant Administrator, Office of
Inspection, Transportation Security Administration, U.S.
Department of Homeland Security:
Oral Statement................................................. 4
Joint Prepared Statement....................................... 6
Ms. Karen Shelton Waters, Assistant Administrator, Office of
Human Capital, Transportation Security Administration, U.S.
Department of Homeland Security:
Oral Statement................................................. 8
Joint Prepared Statement....................................... 6
Ms. Anne L. Richards, Assistant Inspector General, Office of
Audits, U.S. Department of Homeland Security:
Oral Statement................................................. 9
Prepared Statement............................................. 10
EXAMINING TSA'S CADRE OF CRIMINAL INVESTIGATORS
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Tuesday, January 28, 2014
U.S. House of Representatives,
Subcommittee on Transportation Security,
Committee on Homeland Security,
Washington, DC.
The subcommittee met, pursuant to call, at 1:29 p.m., in
Room 311, Cannon House Office Building, Hon. Richard Hudson
[Chairman of the subcommittee] presiding.
Present: Representatives Hudson, Rogers, Brooks, Sanford,
and Richmond.
Mr. Hudson. The Committee on Homeland Security Subcommittee
on Transportation Security will come to order.
Subcommittee is meeting today to hear testimony examining
TSA's workforce of criminal investigators and how TSA can
improve the management of its Office of Inspection to ensure it
is meeting requirements set forth by Federal law and
regulations.
I recognize myself for an opening statement.
I would first like to thank our witnesses, not only for
being here today but also for their public service. I
appreciate their willingness to come forward and work on ways
to solve the difficult issues the Transportation Security
Administration faces.
The problem before us today is not a new one and it can, in
fact, be traced back to the legislation that created the
Transportation Security Administration 2 months after the
terrorist attacks of
9/11.
The Aviation and Transportation Security Act, or ATSA, gave
TSA sweeping authorities to, among other things, create its own
employee classification system rather than adhere to the Office
of Personnel Management system like the vast majority of other
Federal agencies. At the time, Congress determined it was best
to align TSA with the Federal Aviation Administration, which
also has its own employee classification system separate and
apart from OPM.
Today TSA has 20 percent more employees than FAA and we
continue to see significant challenges with the size and scope
of TSA's workforce--challenges that are likely exacerbated by
TSA's exemption from the OPM system. Today's hearing is an
opportunity to examine one glaring example of the problem.
TSA has roughly 100 employees in the Office of Inspection
who are classified as criminal investigators. In order for
these criminal investigators to receive premium law enforcement
pay, TSA is required to confirm that they spend the majority of
their time on long-term criminal investigations related to
alleged or suspected violations of Federal criminal law.
The I.G.'s office found no evidence that TSA had actually
done this, and yet these criminal investigators are still
receiving premium pay. According to the I.G., TSA's criminal
investigators spend the majority of their time investigating
non-criminal cases, monitoring criminal cases conducted by
other agencies, and carrying out inspections, covert tests, and
internal reviews. Non-criminal investigators or other non-law
enforcement employees could just as easily carry out the bulk
of these tasks.
All these activities appear valuable, particularly the
covert testing, so it is not my intent to disparage the hard
work of these men and women. However, the I.G. estimates that
if TSA does nothing to correct this situation of
misclassification it will cost the taxpayers at least $17.5
million over the next 5 years in premium pay alone. That does
not include other expenses such as law enforcement officer
training, weapons, ammunition, vehicles, communications
equipment, and enhanced retirement benefits.
What message does it send to the law enforcement officers
who put their lives on the line every day to keep us safe or
those who have lost their job due to budget cuts if TSA does
not play by the same rules as other agencies? We are all
accountable to the taxpayer and this subcommittee is
responsible for holding TSA to standards the American people
expect and deserve.
Today we have the assistant administrators for two offices
in TSA with significant potential to fix this problem.
Mr. Allison, you have been in your position for a year and
4 months. In that time I understand you have tried to make some
changes.
I hope you will share these today and provide us with
suggestions of how we can resolve this problem. I look forward
to hearing specifically how you intend to address all the
I.G.'s recommendations.
Ms. Shelton Waters, it was not too long ago that you
testified before this subcommittee as the head of TSA's
acquisition office. As the head of the Office of Human Capital
it is your duty to ensure that TSA is not abusing the unique
authority it has been given to maintain its own employee
classification system and to provide the Office of Inspection
the tools and support it needs to make significant changes.
Finally, Ms. Richards, I look forward to hearing directly
from you on the numerous recommendations put forth in your
report and how we can bring greater accountability to TSA's
Office of Inspection and shine a light on TSA's employee
classification system.
Okay. When our Ranking Member gets here, Mr. Richmond, who
we are anticipating will be here, I will recognize him for his
opening statement. In the mean time, we are trying to move
forward as quick as we can due to the vote schedule, and so at
this point we will move right into witness testimony.
Other Members of the committee are reminded that opening
statements may be submitted for the record.
[The statements of Ranking Member Richmond and Ranking
Member Thompson follows:]
Statement of Ranking Member Cedric L. Richmond
January 28, 2014
As you all know, the work that this subcommittee does is extremely
important. We are tasked with making sure that the Transportation
Security Administration fulfills its mission of protecting the Nation's
transportation systems to ensure freedom of movement for people and
commerce.
More importantly, we are tasked with ensuring the safety of
American Citizens as they travel across the Nation.
To accomplish this mission, we must ensure that every office within
the Transportation Security Administration is operating both
effectively and efficiently.
The report released in September 2013 by the Department of Homeland
Security's Office of Inspector General regarding the Office of
Inspection is both alarming and scathing. The report details that the
Office of Inspection is not operating at maximum efficiency, or in a
cost-effective manner because of a top-heavy structure.
Specifically, the Office of Inspection employs personnel classified
as ``criminal investigators'', despite their duties not fitting the
classification of criminal investigations according to Federal
regulations. This classification allows these ``criminal
investigators'' to receive enhanced benefits, and LEAP pay.
According to the OIG report, and as I understand it, two prior
reports, substantial savings could be achieved by reclassifying these
``criminal investigators'' in a manner consistent with the needs of the
Office of Inspection and the type of work they perform.
Undoubtedly, there are many examples of instances in which the
Office of Inspection has helped thwart the efforts of nefarious actors
who mean to do our Nation harm.
That, however, does not diminish the need for us to use our
resources effectively so that we can operate at maximum efficiency.
It is my hope that through the testimony we gather today, we can
get further insight about where these inefficiencies are occurring, how
we can reallocate our resources in an effective manner, and also what
can be done structurally within the TSA so that when these structural
problems are first brought to light, they can be quickly addressed.
I look forward to all of the witnesses' testimony, and hope that
the work that we do here today aids in making the Transportation
Security Administration stronger, more efficient, and more effective.
Before yielding back, I would like to note that this is the first
hearing of the subcommittee in the Second Session of this Congress.
It is my expectation that this subcommittee will be as bipartisan
and productive this year as it was last year when our subcommittee
produced four out of the five bills that the committee saw pass the
House.
I look forward to continuing to work with the Chairman to see that
the bills we sent to the Senate in December, including Ranking Member
Thompson's bill to codify the Aviation Security Advisory Committee,
become law this year.
______
Statement of Ranking Member Bennie G. Thompson
January 28, 2014
Last September, the Department of Homeland Security's Office of
Inspector General released a report that was highly critical of the way
the Office of Inspection classifies its employees and documents its
work.
The OIG report was not the first to identify inefficiencies within
TSA's Office of Inspection. Indeed, it is the third such report in the
last 3 years to come to the same conclusion. In 2011, TSA's Office of
Human Capital conducted a position management review of the Office of
Inspection and found that its workload did not support the number of
criminal investigators in the office.
Following this review, the Office of Human Capital contracted with
a private company to conduct a comprehensive position classification
audit of the Office of Inspection. The result was the same; positions
were found to have been misclassified.
The findings of a single report may be the result of anomalies or
misunderstandings. Three consecutive reports conducted by distinct
entities with the same conclusions cannot be so easily dismissed.
Clearly, reforms within the Office of Inspection are in order.
I can assure you that if TSA does not act to see that the office is
reorganized and made more efficient, this committee will take it upon
itself to mandate the reforms needed. When Congress established TSA in
2001, it gave the agency broad authority to set its personnel practices
as it saw fit to best accomplish its critical mission. With that
authority comes a great deal of responsibility.
Unfortunately, it appears TSA's Office of Inspection has not been a
responsible steward of its authority to classify positions. As a
result, the office has more employees designated as criminal
investigators than any independent audit shows they need. This dynamic
has resulted in increased cost to taxpayers and less efficiency within
a critical component of TSA.
To the witnesses here today from TSA, Mr. Allison and Ms. Shelton
Waters, I look forward to hearing from you about the steps you intend
to take to address the findings and recommendations in the Inspector
General's report.
Beyond the concerns I have about classification of employees within
the Office of Inspection, I am gravely concerned by the Inspector
General's finding that management at TSA may not be able to rely on the
office's work.
As Assistant Administrator Allison's written testimony points out,
the Office of Inspection's mission is to ensure the integrity,
efficiency, and effectiveness of TSA's workforce, operations, and
programs.
If structural and organizational flaws within the Office of
Inspection compromise its ability to perform its mission, the entire
agency suffers.
If those same deficiencies result in the administrator not being
able to rely on the office's work, we have a much bigger problem on our
hands.
Both the administrator and the workforce must have confidence that
the Office of Inspection is an efficient and effective entity that
holds itself to the highest possible standard. The Inspector General's
report calls that into question.
To all of the witnesses appearing before us today, I thank you for
appearing and for your service. It is my hope that today's hearing will
allow for a productive dialog whereby solutions to the problems that
have plagued the Office of Inspection since long before Assistant
Administrator Allison took over responsibility for the office can be
identified.
Mr. Hudson. We are very pleased to have a distinguished
panel of witnesses with us today.
Mr. Roderick Allison is TSA's assistant administrator for
inspection at the Transportation Security Administration, a
position he has held since August 2012. In this capacity Mr.
Allison oversees and ensures the security and integrity of
TSA's operations through inspections, investigations, and
covert testing. Before becoming assistant administrator Mr.
Allison served as the deputy assistant administrator and deputy
director for the Office of Law Enforcement within the Federal
Air Marshal Service.
Ms. Karen Shelton Waters is TSA's assistant administrator
for human capital. Ms. Shelton Waters is responsible for
programs that empower TSA to hire, retain, and deploy a
qualified workforce. Previously, Ms. Shelton Waters served as
TSA's assistant administrator for the Office of Acquisition.
Finally, Ms. Anne Richards is the assistant inspector
general for the Office of Audits under the Office of Inspector
General at the Department of Homeland Security. The Office of
Audits focuses on promoting effectiveness, efficiency, and
economy in DHS's programs and operations in addition to
detecting fraud, abuse, waste, and mismanagement. Prior to
joining the Office of Inspector General Ms. Richards was
assistant inspector general at the U.S. Department of the
Interior.
The witnesses' full statements will appear in the record.
The Chairman now recognizes Mr. Allison to testify.
STATEMENT OF RODERICK ALLISON, ASSISTANT ADMINISTRATOR, OFFICE
OF INSPECTION, TRANSPORTATION SECURITY ADMINISTRATION, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Allison. Thank you, Mr. Chairman.
Chairman Hudson, Ranking Member Richmond, and Members of
the subcommittee, I appreciate the opportunity to appear before
you today. As the Chairman said, my name is Roderick Allison; I
am the assistant administrator for the Office of Inspection, or
OOI.
The TSA administrator and deputy administrator have stated
that TSA has zero tolerance for misconduct. In fact, in July of
last year the deputy administrator testified before your
subcommittee and the Subcommittee on Oversight and Management
Efficiency on TSA's role in promoting a strong counterterrorism
workforce to safeguard the traveling public and secure our
Nation's transportation systems. In that testimony the deputy
administrator highlighted OOI's role and responsibilities to
investigate misconduct by TSA employees.
One of TSA's mission priorities is efficiencies and the
administrator has charged his staff to find efficiencies in our
respective organizations. To that point, beginning in fiscal
year 2013 OOI initiated and completed more organizational
improvements in that year than the previous 5 years combined.
OOI is responsible for investigations, audits, and
compliance inspections, as well as covert testing efforts. We
investigate allegations of criminal and administrative
misconduct by TSA employees and contractors, conduct
inspections of TSA through covert testing and audits designed
to identify system vulnerabilities and provide mitigation
strategies.
In 2013 we conducted over 400 covert tests at 136 airports,
and through our September 11 security fee audits we identified
over $753,000 in fees due back to TSA--or back to the
Government. Since 2008 our audit program has identified over
$13 million in security fees owed back to TSA.
In fiscal year 2013 OOI closed 887 investigations, an 11
percent increase in productivity over the previous year, with
approximately 55 percent of selected cases closed within 90
days. Also in fiscal year 2013 OOI opened 747 criminal
administrative conduct mis-cases. This number includes 423
cases that TSA was required to refer to the DHS OIG, which they
retained only 3 percent of the 423 cases and referred the
remaining back to TSA for investigations.
Additionally, our investigators completed 25 Office of
Worker's Compensation fraud investigations, OWCP, which have
resulted in $3 million in cost avoidance to the Government. In
total, our OWCP investigations have resulted in saving the
taxpayers $57 million in fraudulent claims.
In fiscal year 2013 OOI criminal investigators also
provided technical service to our investigations, including 113
criminal polygraph examinations, 137 computer forensic
analyses, and 135 technical equipment support services. In
2012, at the request of Administrator Pistole, our office
initiated theft stings, or what we call integrity testing.
During 2013 fiscal year, we conducted over 2,500 tests at
114 airports around the country. I am pleased to announce that
in that effort we have a 99.7 percent pass rate, and the
employees that we caught were removed from Federal service.
The administrator office routinely publishes the results of
these tests and broadcasts e-mails and newsletters to the
workforce on this effort and we intend to continue. All these
milestones were achieved with a 6 percent reduction in the
number of criminal investigators during the fiscal year.
In September 2013 DHS OIG report on Office of Inspection,
which is the subject of today's hearing, offered 11
recommendations and we have concurred with each of them. These
recommendations will further refine and improve the performance
of the Office of Inspection.
For example, recommendation No. 5 focused on developing an
annual work plan, and recommendations No. 6 and 7 center on
developing and tracking outcome-based performance measures.
Recommendation No. 8, which we have already undertaken,
required employees, including criminal investigators, to
document their work hours to investigations and other
assignments in an automated system.
In fact, on December 20, 2013 we submitted documentation to
OIG to request closure of the 10 remaining open recommendations
and the OIG is currently evaluating our documentation.
While we have concurred with each of the OIG
recommendations, I believe that the independent workforce
analysis outlined in recommendation No. 3, along with the data
we are now completely tracking, will provide TSA with the
necessary information to determine what the proper number of
investigative positions--or what positions TSA should have with
respect to that number, I am sorry. As noted in our 90-day
response to the report, we expect that analysis and
classification review to be completed by September.
In closing, it is our responsibility to conduct impartial,
thorough, and expedient investigations of misconduct to uphold
the integrity of our workforce. However, we are also
responsible for ensuring that allegations of misconduct do not
compromise TSA's ability to perform its security mission.
It is important to note that while our investigations often
substantiate allegations of wrongdoing, many cases exonerate
employees of allegations of misconduct. Effectively managing
these cases in a time frame consonant with the allegations
allow these employees to return to their security duties.
I appreciate the opportunity to appear before you today,
and I will be happy to answer any questions you may have.
[The joint prepared statement of Mr. Allison and Ms. Waters
follows:]
Joint Prepared Statement of Roderick Allison and Karen Shelton Waters
January 28, 2014
Chairman Hudson, Ranking Member Richmond, and Members of the
subcommittee, I appreciate the opportunity to appear before you to
discuss the Transportation Security Administration's (TSA) Office of
Inspection (OOI). I am joined today by Karen Shelton Waters, TSA's
assistant administrator for the Office of Human Capital.
TSA OOI ensures the integrity and effectiveness of TSA's employees
and programs, which are entrusted with safeguarding our Nation's
transportation systems, as well as the security systems used to
safeguard the traveling public.
TSA OOI's mission is to ensure the integrity, efficiency, and
effectiveness of TSA's workforce, operations, and programs through
objective audits, covert testing, inspections, and criminal
investigations. Every day, TSA's nearly 60,000 employees screen 1.8
million air travelers, and perform the vetting for more than 2 million
new airline passenger reservations and 14 million transportation worker
records against the Federal Government's consolidated terrorist watch
list. It is critical to our mission that the TSA workforce and its
programs adhere to the highest standards of conduct.
TSA'S OFFICE OF INSPECTION
TSA OOI has a wide range of responsibilities including criminal
investigations, audit and compliance cases, as well as covert testing
efforts. We investigate allegations of criminal and administrative
misconduct of TSA employees and contractors; conduct inspections of TSA
operations to ensure all offices and airports are in full compliance
with Federal laws, regulations, and current policies; and evaluate the
effectiveness of our transportation security systems through covert
testing and audits designed to identify system vulnerabilities and
provide mitigation strategies. Of these, there are 100 criminal
investigators who handle allegations of criminal and administrative
misconduct. The criminal investigators have an average of 17 years of
Federal experience, including an average of 7 years of service at TSA.
In 2012, at Administrator Pistole's direction, TSA OOI initiated
integrity tests at airports around the country to assess compliance
with our core value of integrity in handling the property of
passengers. Since 2012, TSA OOI's criminal investigators have conducted
more than 2,530 integrity tests in 114 airports around the country. At
times, the tests included local law enforcement and Department of
Homeland Security (DHS) Office of Inspector General (OIG), Office of
Investigations agents. I am pleased to report that we have found 99.7
percent compliance. In fact, only 7 TSA employees failed the covert
tests and all 7 were removed from Federal service.
TSA is required by DHS Management Directive 0810.1 to refer
allegations of criminal misconduct to the DHS OIG, so the DHS OIG may
determine which cases it will retain and investigate. Any case DHS OIG
does not choose to investigate is referred back to TSA OOI. This
responsibility requires the employment and retention of investigators
who are professional, capable, and able to appropriately handle
criminal investigation cases. In fiscal year 2013, TSA referred 423 new
cases to the DHS OIG, which retained 12 cases. The remaining 411 cases
were referred back to TSA OOI for investigation.
EFFICIENCY
During fiscal year 2013, TSA OOI's 100 criminal investigators
completed 887 \1\ total investigations including 309 of the 411 newly-
opened cases referenced above, of which the majority were criminal
investigations. TSA OOI's criminal investigators used their expertise
and knowledge of law, regulation, and policy to investigate and close
these complex cases, thus ensuring the highest standards of integrity
and professionalism within our workforce. Additionally, TSA OOI
partners with the TSA Office of Professional Responsibility (OPR) to
ensure that allegations of misconduct are thoroughly investigated and
that discipline is appropriate, consistent, and fair across the agency.
---------------------------------------------------------------------------
\1\ The 887 completed investigations include new cases from fiscal
year 2013 as well as cases opened or investigated in the prior year.
---------------------------------------------------------------------------
Since becoming the assistant administrator of TSA OOI, I have
focused on making our office more efficient and effective in carrying
out its mission. During fiscal year 2013, TSA OOI closed over 55
percent of investigations within 90 days of initiation. In fiscal year
2013, TSA OOI completed 25 workers' compensation fraud investigations
which resulted in cost avoidance to the Government of over $3,000,000.
Our office also conducted over 400 covert tests, which focused on
potential vulnerabilities in existing policies, procedures,
supervision, and training. Furthermore, OOI implemented risk-based
initiatives through the development and implementation of tools,
conducted risk-based analysis of information for program development
and execution, and collaborated with internal and external
stakeholders.
OIG RECOMMENDATIONS
The OIG produced a September 2013 report entitled Transportation
Security Administration Office of Inspection's Efforts to Enhance
Transportation Security which recommended 11 improvements in TSA OOI.
While the majority of these recommendations are still open, TSA has
made a significant progress in addressing the OIG's concerns such as
Recommendation No. 2, which the OIG closed when TSA finalized and
implemented a Management Directive requiring criminal investigators to
document their work hours properly. To adequately capture the
utilization of our criminal investigators, TSA OOI uses a Resource
Allocation Model (RAM) to document all criminal investigative
activities and hours concurrent with the investigation, which
supervisors are reviewing on a regular basis.
Additionally, TSA's Office of Human Capital (OHC) is conducting an
independent workforce review to evaluate the workforce profile and the
nature of the caseload in TSA OOI. This will ensure the proper
assignment of cases requiring the special skills and expertise of
criminal investigators. The evaluation will also include a predictive
model to determine the future demand for criminal investigators. As
part of this review, OHC will examine cost-effective and appropriate
staffing models to support TSA OOI's mission.
On December 9, 2013, I approved a work plan for TSA OOI's
divisions, which contains project-specific information such as
duration, cost estimates, and staffing. I am also reviewing our current
fiscal year goals to develop outcome-based performance measures, and
working to establish a regular review process to ensure that TSA OOI's
programs, projects, and operations are meeting the intended goals. TSA
OOI anticipates completing this task in March of this year.
TSA produced a 90-day update to the OIG's recommendations in
December of 2013, and anticipates closure of additional recommendations
in the coming weeks.
CONCLUSION
TSA appreciates the partnership of the DHS OIG and this committee
to ensure TSA OOI is managing our security system and workforce in the
most efficient, effective manner possible. Thank you for the
opportunity to appear before you today. I will be happy to address any
questions you may have.
Mr. Hudson. Thank you, Mr. Allison.
The Chairman recognizes Ms. Shelton Waters to testify.
STATEMENT OF KAREN SHELTON WATERS, ASSISTANT ADMINISTRATOR,
OFFICE OF HUMAN CAPITAL, TRANSPORTATION SECURITY
ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY
Ms. Shelton Waters. Good afternoon, Chairman Hudson,
Ranking Member Richmond, and Members of the subcommittee. My
name is Karen Shelton Waters and I am the assistant
administrator for the Office of Human Capital at the
Transportation Security Administration.
In my position I serve as the principal agency adviser on
matters pertaining to human capital. Among other things, my
office is responsible for providing human capital services to
develop and sustain a high-performing workforce, developing the
agency's human capital policy agenda, and monitoring progress
towards those goals, implementing survey systems to gauge
organizational effectiveness and workforce job satisfaction,
ensuring sound position management principles are in place
throughout TSA, and ensuring the TSA personnel management
system supports legislative and policy requirements such as
merit principles, prohibited personnel practices, diversity in
hiring, and application of veterans preference.
Through each of these functions, Human Capital supports
TSA's program offices in meeting their mission needs. For
example, when the agency needs to hire a canine handler or a
Federal air marshal it is the program office that provides the
technical skills and ability required for the position. Human
Capital assists the program office by reviewing and advising on
the proper classification of the position, creating the vacancy
announcement, advising on recruitments strategy, and evaluating
the applicants. The list of qualified applicants is then
provided to the hiring office for review and selection.
TSA is somewhat unique in that it is an excepted service
agency. TSA's human capital authorities are outlined by the
Aviation and Transportation Security Act and not Title 5 of the
U.S. Code.
The act provided that, among other things, the TSA
administrator develop a personnel system that, at a minimum,
provided for greater flexibility in hiring, training,
compensation, and location of personnel. TSA's core
compensation does this.
It is also important to note that the Office of Personnel
Management has approved an interchange agreement with DHS for
TSA after determining TSA's established merit system is
consistent with the intent of civil service laws.
As you know, Administrator Pistole and the TSA leadership
are committed to the culture of hard work, professionalism, and
integrity. In furtherance of those ideals, the agency has taken
a number of steps in recent years, including the creation of
the Office of Professional Responsibility, or OPR.
OPR works closely in conjunction with the Office of
Inspection to ensure that allegations of misconduct are swiftly
and thoroughly investigated and that misconduct is dealt with
consistently and appropriately. My role in that process is to
ensure that my colleagues in Inspection and OPR have the
necessary staffing and resources to achieve those results.
With respect to the Inspector General report being
discussed here today, I will have an independent analysis of
the criminal investigator workforce conducted and then use the
results of that analysis to assist OOI in balancing their
criminal investigator workforce against the agency's criminal
investigative workload. I am committed to work with the Office
of Inspection and the TSA leadership to utilize cost-effective
human capital processes and practices that provide the
appropriate resources needed to ensure the integrity of the TSA
workforce.
Thank you for the opportunity to appear before you today. I
will be happy to answer any questions you may have.
Mr. Hudson. Thank you, Ms. Shelton Waters.
The Chairman recognizes Ms. Richards to testify.
STATEMENT OF ANNE L. RICHARDS, ASSISTANT INSPECTOR GENERAL,
OFFICE OF AUDITS, U.S. DEPARTMENT OF HOMELAND SECURITY
Ms. Richards. Good afternoon, Chairman Hudson, Ranking
Member Richmond, Members of the subcommittee. Thank you for
inviting me to testify on our recent audit of TSA's Office of
Inspection.
During our audit we identified several issues that led us
to conclude the Office of Inspection was not operating
efficiently or effectively. Specifically, we determined that
using criminal investigators to conduct inspections, covert
testing, and internal reviews was not cost-effective because
other employees who are paid less could perform the same work.
We also concluded that more than 100 Office of Inspection
staff members who were classified as criminal investigators may
not have met Federal requirements entitling them to extra pay,
called law enforcement ability pay, or LEAP. To receive LEAP,
criminal investigators must spend, on average, at least 50
percent of their time on criminal investigations, that is
investigating, apprehending, or detaining individuals suspected
or convicted of criminal offenses.
The office's criminal investigators worked primarily on
collateral and administrative cases rather than on criminal
cases. Data compiled by our Office of Investigations indicated
that in fiscal years 2010 and 2011 about 75 percent of the
Office of Inspection's workload consisted of collateral and
administrative cases. This means that criminal investigators
primarily monitored and reported on criminal investigations
conducted by other agencies or investigated cases of alleged
employee misconduct.
During our audit period Office of Inspection employees,
including criminal investigators, were not required to document
their activities so the office could not definitively show that
its criminal investigators met the LEAP requirements. Yet, 97
percent received LEAP.
We estimate that if the office maintains the same number of
criminal investigator positions the cost of LEAP over the next
5 years will add up to $17.5 million, most of which could be
avoided if the workload analysis was performed and its
recommendations promptly implemented. This estimate does not
include the cost of special employment benefits for law
enforcement officers or additional costs in training, travel,
and supplies.
For these reasons we recommended that a workforce analysis
and a position classification review be performed for the
Office of Inspection. We believe that OPM would be best suited
to conduct this work independently and objectively.
TSA has reported that the Office of Inspection is working
with the Office of Human Capital on a workforce analysis, but
the review will cover only two divisions which employ just 12
of the current 105 criminal investigators in the office. There
were no plans to review the other 87 criminal investigator
positions. This is troubling because a previous study by the
Office of Human Capital and by a contractor hired by the Office
of Human Capital identified similar issues as our audit work,
but those recommendations were not accepted or implemented.
Our audit also showed that the office did not effectively
plan its work, did not adequately measure its performance, and
did not ensure that all divisions complied with the
professional standards it had committed to using. The office
also could not ensure that staff members were properly trained
and that supervisors adequately reviewed work products.
Without proper quality controls, TSA could not be certain
that Office of Inspection's work was reliable. In addition, TSA
was not obligated to implement the office's recommendations and
therefore may have missed opportunities to improve
transportation security.
Mr. Chairman, this concludes my remarks. Thank you.
[The prepared statement of Ms. Richards follows:]
Prepared Statement of Anne L. Richards
January 28, 2014
Good afternoon Chairman Hudson, Ranking Member Richmond, and
Members of the subcommittee.
Thank you for inviting me here today to testify on the
Transportation Security Administration (TSA) Office of Inspection's
(OOI) efforts to enhance transportation security. My testimony will
focus on the results of our audit to determine the efficiency and
effectiveness of OOI's efforts, which we published in September 2013.
OOI conducts inspections, internal reviews, and covert testing to
ensure the effectiveness and efficiency of TSA's operations and
administrative activities, and to identify vulnerabilities in TSA
security systems. Additionally, the office carries out internal
investigations of the TSA workforce to ensure its integrity. We
conducted an audit of this office to determine whether it is efficient
and effective in its efforts to enhance transportation security.
We determined that OOI did not operate efficiently. Specifically,
the office did not use its staff and resources efficiently to conduct
cost-effective inspections, internal reviews, and covert testing. OOI
employed personnel classified as criminal investigators, even though
their primary duties may not have been criminal investigations as
required by Federal law and regulations. These employees received
premium pay and other costly benefits, although other employees were
able to perform the same work at a lower cost. Additionally, the office
did not properly plan its work and resource needs, track project costs,
or measure performance effectively. Quality controls were not
sufficient to ensure that inspections, internal reviews, and covert
testing complied with accepted standards; that staff members were
properly trained; and that work was adequately reviewed. Finally, the
office could not always ensure that other TSA offices acted on its
recommendations to improve operations.
As a result of these issues with the office's cost-effectiveness
and quality controls over its work products, TSA was not as effective
as it could have been, and management may not be able to rely on the
office's work. Additionally, OOI may not have fully accomplished its
mission to identify and address transportation security
vulnerabilities. With the appropriate classification and training of
staff and better use of resources, the office could improve the quality
of its work. The appropriate number of reclassifications and more
precise cost savings cannot be determined without an objective and
comprehensive review of position classifications. If TSA does not make
any changes to the number of criminal investigator positions in OOI, we
estimate that it will cost as much as $17.5 million over 5 years for
premium Law Enforcement Availability Pay (LEAP). OOI could realize
further savings in training, travel, supplies, and other special
employment benefits, including statutory early retirement, if its
personnel classified as criminal investigators were reclassified to
non-criminal investigator positions.
BACKGROUND
TSA is responsible for protecting the Nation's transportation
systems. The agency provides airline and other transportation security
through passenger, baggage, and container screening, as well as other
security programs. OOI's mission is to: (1) Ensure the effectiveness
and efficiency of TSA's operations and administrative activities
through inspections and internal reviews, (2) identify vulnerabilities
in security systems through operational testing, and (3) ensure the
integrity of TSA's workforce through comprehensive special
investigations. At the time of our audit, OOI was composed of the
following four divisions:
Inspections and Investigations Division.--Inspects TSA
program components, including the Federal Air Marshal Service,
Federal Security Directors' offices, and TSA Headquarters'
offices to ensure they are following TSA's policies and
procedures. Additionally, the division identifies
vulnerabilities in passenger, baggage, and cargo operations; it
also investigates alleged criminal and administrative
misconduct of TSA employees.
Internal Reviews Division.--Assesses TSA programs and
operations for efficiency, effectiveness, and compliance with
laws, regulations, and TSA policies. The division also conducts
audits of air carriers in accordance with Government Auditing
Standards, to determine their compliance with 9/11 security fee
requirements. From 2008 through 2011, the division audited
approximately $4.8 billion in 9/11 security fees and identified
approximately $12.6 million in fees that were owed to the
Federal Government.
Special Operations Division.--Plans, conducts, and reports
results of covert testing to identify vulnerabilities in
transportation security systems. Covert testing is designed to
identify security vulnerabilities and address deficiencies by
recommending corrective actions.
Business Management Office.--Supports the three operational
divisions by managing OOI's communications and information
systems and coordinating resources.
As shown in Table 1, OOI reported the following accomplishments
from fiscal year 2010 through the first quarter of fiscal year 2012.
TABLE 1.--INVESTIGATIONS OPENED AND REPORTS COMPLETED FROM FISCAL YEAR
2010 THROUGH FIRST QUARTER FISCAL YEAR 2012
------------------------------------------------------------------------
Amount
------------------------------------------------------------------------
Investigations Opened................................... 930
Reports of Inspections.................................. 93
Reports of Internal Reviews............................. 56
Reports of Special Operations (Covert Testing).......... 16
------------------------------------------------------------------------
Source.--Totals based on data provided by OOI.
In fiscal year 2011, the TSA Office of Human Capital (OHC)
conducted a position management review in OOI and reported that the
office could gain efficiencies by restructuring its organization,
realigning its workload, reclassifying positions, and refocusing on
core functions and purpose.\1\ In fiscal year 2012, at the direction of
the TSA administrator, OHC began an Organizational Transformation
Initiative. The initiative is designed to support the agency's on-going
evolution into a high-performance counterterrorism organization and
ensure that each TSA office executes its assigned responsibilities
efficiently, effectively, and economically. As a result, OOI changed
its organizational structure and, in an effort to reduce the number of
supervisory layers, eliminated several positions.
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\1\ TSA OHC Position Management Review, Office of Inspection,
August 2011.
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OOI staff is composed primarily of personnel employed in positions
classified by TSA as criminal investigators, transportation security
specialists, and program analysts who operate in a matrix environment
in which individuals assist divisions other than the one to which they
are assigned. For example, in addition to conducting investigations,
criminal investigators may conduct inspections or covert testing.
According to data provided by OOI's Business Management Office, in
fiscal year 2011, TSA allocated approximately $43.5 million to OOI, of
which $27.2 million was spent on salaries for 205 employees, including
35 transportation security specialists and 124 criminal investigators.
Transportation security specialists supervise, lead, or perform
inspections, investigations, enforcement, or compliance work. TSA
defines a criminal investigator as an individual who plans and conducts
investigations of alleged or suspected violations of Federal criminal
laws.
According to TSA Management Directive No. 1100.88-1, Law
Enforcement Position Standards and Hiring Requirements, TSA criminal
investigators are considered law enforcement officers. By law, however,
to qualify for statutory enhanced retirement benefits, only those
Federal employees whose duties include ``primarily the investigation,
apprehension, or detention of individuals suspected or convicted of
offenses against the criminal laws of the United States'' qualify as
law enforcement officers.\2\ Office of Personnel Management (OPM)
regulations require law enforcement officers to spend in general an
average of at least 50 percent of their time investigating,
apprehending, or detaining individuals suspected or convicted of
violating criminal laws of the United States.\3\
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\2\ 5 United States Code (USC) 8331(20), 8401(17), 5 Code of
Federal Regulations (CFR). 831.902; see also 5 CFR. 842.802.
\3\ 5 CFR 831.902, 842.802. These regulations define and
establish requirements for law enforcement officers. This workload
requirement does not apply to individuals who qualify to be in a
secondary position, such as first-level supervisors to criminal
investigators or those in administrative positions.
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Law enforcement officers are entitled to special statutory
employment benefits. For example, they are entitled to retire at age 50
with full benefits after 20 years of service.\4\ They receive a faster
accruing pension. They also are eligible to receive extra pay known as
LEAP.\5\ Although TSA is exempt from certain personnel management
provisions of Title V of the United States Code (USC), including the
LEAP statute, TSA Management Directive No. 1100.88-1 incorporates
LEAP.\6\ To receive LEAP, an additional 25 percent above base pay,
criminal investigators must certify annually that they have worked and
are expected to be available to work a minimum annual average of 2 or
more unscheduled duty hours beyond each normal workday.\7\
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\4\ 5 USC 8336(c), 8412(d)(2).
\5\ Congress enacted the Law Enforcement Availability Pay Act of
1994 ``to provide premium pay to criminal investigators to ensure the
availability of criminal investigators for unscheduled duty in excess
of a 40-hour work week based on the needs of the employing agency.'' 5
USC 5545a(b).
\6\ TSA's Management Directive No. 1100.88-1 also incorporates the
statutory and regulatory definitions of ``law enforcement officer''
referred to throughout this report. TSA is not exempt from Title V
provisions concerning law enforcement retirement.
\7\ See 5 CFR 550.181-186, particularly 550.184, Annual
certification. Each newly hired criminal investigator and the
appropriate supervisory officer must certify the investigator is
expected to meet the substantial hours requirement in 550.183 during
the upcoming 1-year period. 5 CFR 550.184(a).
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Because of their position classifications, OOI criminal
investigators are eligible for LEAP and entitled to early retirement.
These benefits are more costly to the Government than regular
benefits.\8\ Approximately 97 percent of OOI's criminal investigators
received LEAP during the period of our audit. The salary for criminal
investigators is capped and varies based on the differing locality pay
of each duty station. For example, criminal investigators based in OOI
headquarters in the Washington, DC, area have a salary cap of
approximately $164,000, which includes LEAP and locality pay. From
financial information we obtained from TSA, we determined that in
fiscal year 2011, the median pay for an OOI criminal investigator was
$161,794 and the median pay for a transportation security specialist
was $117,775. TSA's records showed that in fiscal year 2011, salaries
for criminal investigators, who comprised about 60 percent of OOI
staff, accounted for $18.5 million, or 68 percent, of the $27.2 million
in total salaries paid. OOI also paid criminal investigators
approximately $6.1 million in LEAP over fiscal years 2010 and 2011. For
purposes of this audit, we did not review the cost to TSA of other
statutory law enforcement benefits such as early retirement. Chart 1
shows the total salaries paid by position in OOI for fiscal year 2011.
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\8\ Eligibility for law enforcement retirement coverage must be
``strictly construed'' because the benefits are ``more costly to the
government than more traditional retirement plans and often results in
the retirement of important people at a time when they would otherwise
have continued to work for a number of years.'' Bingaman v. Department
of the Treasury, 127 F.3d 1431, 1435 (Fed. Cir. 1997).
In April 2012, the Department of Homeland Security (DHS) Office of
Inspector General (OIG) Office of Investigations issued a Report of
Inspection for TSA's Office of Inspection, Inspections and
Investigations Division on OOI's process of conducting investigations
into TSA employee misconduct. As a result of its inspection, the Office
of Investigations determined that the Inspections and Investigations
Division's investigative process complied with applicable policies,
directives, and law enforcement standards. Because the Office of
Investigations recently reviewed this process, we focused our audit on
OOI's other products, services, and operations, and on personnel
matters.
USE OF CRIMINAL INVESTIGATORS
OOI did not use its staff and resources efficiently in carrying out
its work. The office did not have a process to ensure that its criminal
investigators met their positions' criminal investigative workload
requirement or were properly classified as criminal investigators.
Rather than investigating criminal cases, the majority of the criminal
investigators' workload consisted of noncriminal cases; monitoring and
reporting on criminal cases; and carrying out inspections, covert
testing, and internal reviews. Such work could have been performed by
other OOI employees who do not receive LEAP, and who are not eligible
for statutory early retirement and other costly law enforcement
benefits.
OOI did not ensure that its criminal investigators met the Federal
workload requirement for law enforcement officers, which makes them
eligible for LEAP (if they meet the unscheduled hours availability
requirement) and entitles them to early retirement. Specifically, the
office could not ensure that its criminal investigators spent an
average of at least 50 percent of their time investigating,
apprehending, or detaining individuals suspected or convicted of
criminal offenses. Additionally, some supervisory criminal
investigators may not have been properly classified. Their
classification depends on correctly classifying the individuals they
supervise, and OOI had no assurance that subordinates were properly
classified, based on the Federal workload requirement for criminal
investigators. Although not able to demonstrate that criminal
investigators met the Federal workload requirement for law enforcement
officers, which is a prerequisite for receiving LEAP, OOI personnel in
these positions and their supervisors received LEAP during the period
of our audit.
DHS Management Directive 0810.1, The Office of Inspector General,
requires OOI to refer allegations of potentially criminal employee
misconduct to the DHS OIG Office of Investigations for review. Any case
not retained by OIG is referred back to OOI. According to the April
2012 Office of Investigations report, OOI closed 1,125 cases in fical
years 2010 and 2011; of the cases it closed, 253, or approximately 22.5
percent, were criminal in nature.
OOI criminal investigators primarily monitored and reported to TSA
management the results of collateral criminal investigations conducted
by other Federal, State, or local agencies, or they investigated
administrative cases of alleged employee violations of TSA policy.
Table 2 shows the Office of Investigations' categorization of 1,125
investigative cases closed by OOI in fiscal years 2010 and 2011. The
statistics in Table 2 are based on the number of cases managed, not the
time spent working on cases. Thus, these statistics do not address the
Federal workload requirement for criminal investigators, which is based
on time spent working on criminal investigations.
TABLE 2.--FISCAL YEAR 2010 AND FISCAL YEAR 2011 CLOSED CASE CATEGORIZATION
----------------------------------------------------------------------------------------------------------------
Percent of
Type of Case Category Description Number Total
----------------------------------------------------------------------------------------------------------------
Collateral.............................. Criminal investigations conducted by other 577 51.3
Federal, State, or local agencies, which
OOI monitored and reported the results or
investigated administratively.
Administrative.......................... Investigations of TSA employee misconduct 295 26.2
that violated TSA policy.
Criminal (other than collateral)........ Criminal investigations submitted for 253 22.5
acceptance or declination to a U.S.
attorney or State or local prosecutor when
appropriate.
-----------------------------------------------------------------------
Total Cases....................... ............................................ 1,125 100
----------------------------------------------------------------------------------------------------------------
Source.--DHS OIG Report of Inspection for TSA's Office of Inspection, Inspections and Investigations Division,
April 19, 2012.
In its 2011 position management review of OOI, OHC concluded that
OOI's investigative workload did not support the number of criminal
investigators in the office. According to a fiscal year 2011 OOI
workload assessment, criminal investigators spent, in 1 year, an
estimated 25 to 30 percent of their time on all investigations-related
activities, whether monitoring collateral cases or conducting
administrative and criminal investigations. Based on the OOI workload
assessment, OHC raised concerns in its review about the number of
criminal investigators in the Inspections and Investigations Division.
In its report, OHC also noted that TSA is focused on transportation
security and has a limited law enforcement function; therefore,
modeling OOI after a law enforcement agency might not be appropriate.
As a result of its review, OHC concluded that OOI could improve its
efficiency, and recommended that the office eliminate criminal
investigator positions not supported by the criminal investigative
workload, either through attrition or reassignment to an appropriate
position. Following its position review, OHC contracted with a company
to conduct comprehensive position classification audits of some OOI
positions. These audits, the findings of which were presented to OHC in
February 2012, confirmed OHC's findings that positions were
misclassified.
Subsequently, OHC reversed its position, and no longer concurred
with the contractor's findings regarding reclassifications. In its
Summary of Classification Determinations dated June 2012, OHC
maintained that these position classifications were secondary law
enforcement positions, and as such there was ``no required percentage
of time or workload level required to sustain their classification as
law enforcement.'' As of August 2012, OHC had not taken action to
reevaluate and reclassify criminal investigator positions. Although OHC
concluded in 2011 that OOI's investigative workload did not support the
number of criminal investigators and recommended eliminating positions,
in December 2012, OOI posted multiple vacancy announcements to hire
more criminal investigators Nation-wide.
In June 2012, in response to OHC's position management review
findings, the OOI assistant administrator at the time agreed to consult
with OHC to assess the office's needs and determine the appropriate
positions to perform OOI's work. The former assistant administrator
also agreed to begin tracking criminal investigators' workload
statistics to ensure that they met the legal requirement to spend a
minimum of 50 percent of their time on criminal investigative activity.
OOI Letter No. 0007.2, dated August 2012, requires its employees to
track work hours, including LEAP hours, in its data management system.
OOI criminal investigators were also assigned to inspections,
covert tests, and internal reviews, all of which could be accomplished
by other personnel who do not receive LEAP or other statutory law
enforcement benefits. Our review of 29 reports that were issued between
fiscal year 2010 and the first quarter of fiscal year 2012 by various
OOI divisions showed that criminal investigators composed:
61 percent of OOI personnel who conducted the 5 inspections;
50 percent of OOI personnel who conducted the 10 covert
testing modules; and
51 percent of OOI personnel who conducted the 14 internal
reviews.
These results show that criminal investigators performed work not
related to criminal investigations, which is not an efficient use of
resources. Paying LEAP to these employees costs more, and because they
are not required to document the hours they spend conducting criminal
investigations, it does not comply with TSA Management Directive
1100.88-1, which incorporates the LEAP statute. Using criminal
investigators to perform this work also cost TSA more in salary and
benefits.
OOI did not require all staff to enter time spent working on
projects into its database, which would have supported the hours
charged to its criminal investigations. Additionally, TSA has no
assurance that the LEAP availability hours were properly certified
because it was unable to determine whether the criminal investigators
met the Federal workload requirement for that position. Without
evidence to support the classification and workload of the 124 criminal
investigators in OOI, there is no assurance that these positions are
properly classified.
Using non-criminal investigators who do not receive LEAP to perform
inspections, covert tests, and internal reviews could result in future
cost savings. Specifically, we estimate that over a 5-year period, OOI
could save as much as $17.5 million in LEAP if its 124 criminal
investigators were reclassified to non-criminal investigator positions.
However, the appropriate number of reclassifications and more precise
cost savings cannot be determined without an objective and
comprehensive review of position classifications.
Our cost savings estimate does not take into account a potential
increase in overtime pay, which could result from criminal
investigators being converted to transportation security specialists or
program analysts. Criminal investigators who receive LEAP are not
generally eligible to receive overtime pay, but transportation security
specialists and program analysts are eligible.\9\ During fiscal years
2010 and 2011, OOI paid approximately $109,000 in overtime pay to 66
individuals in these two job positions. If all 124 criminal
investigators (approximately twice the number of OOI's transportation
security specialists and program analysts who received overtime pay
during this 2-year period) were converted, we estimate the increase in
overtime pay would be approximately $218,000 based on pay data from
fiscal years 2010 and 2011. This potential increase in overtime pay is
significantly less than the $6.1 million paid in LEAP for the same 2-
year period.
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\9\ Criminal investigators who receive LEAP pursuant to 5 USC
5545(a) are exempt from the overtime provisions in the Fair Labor
Standards Act of 1938, as amended, but may still receive overtime pay
per Title 5 of the USC.
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In addition to the LEAP savings, OOI could realize savings if its
criminal investigators were reclassified as transportation security
specialists or other non-criminal investigator positions. These savings
would come from cost categories such as training, travel, supplies, and
other benefits, including statutory early retirement and a faster-
accruing pension. OHC reached this same conclusion in its position
management review.
When OOI was established in September 2003, TSA management may have
believed that the number of criminal investigators on staff was
appropriate to meet the office's mission. However, in the 10 years
since its establishment, neither OOI nor TSA has conducted a
comprehensive workforce analysis, which would help determine the
correct set of skills and the appropriate number of personnel to
accomplish the office's mission cost-effectively. In addition, OOI has
not demonstrated the need to retain the current number of criminal
investigators.
According to OPM's August 2009 Introduction to the Position
Classification Standards 2009, OPM and Federal agencies are responsible
for carrying out the classification system in accordance with the
principles set forth in law. Federal managers are responsible for
organizing work to accomplish the agency's mission most efficiently and
economically. The Federal Government's policy is to use available
resources optimally in assigning work.
Although OPM has overall responsibility for establishing the basic
policies and guidance governing position classification and management
for most Federal agencies, TSA is exempt from OPM classifications.\10\
TSA has established its own position classifications and classification
management procedures. However, with respect to law enforcement, TSA's
policy is to adhere to OPM requirements so that TSA criminal
investigators will be entitled to enhanced retirement benefits. Without
OPM's approval, TSA criminal investigators would not qualify for
enhanced retirement benefits covered in 5 USC Chapters 83-85 because
TSA is not exempt from these provisions.\11\ These benefits are only
provided to those law enforcement personnel who are covered under the
statutory and regulatory definitions of ``law enforcement officer.''
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\10\ 49 USC 40122(g).
\11\ 49 USC 40122(g)(2)(G).
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TSA is required to submit to OPM a list of law enforcement
positions, separating the primary and secondary positions.\12\ To
ensure compliance with OPM regulations for law enforcement retirement
benefits, TSA must also establish and maintain a file for each law
enforcement officer with the position classification, the officer's
actual duties, and all background material used to make the
determination; OPM has the authority to audit these files.\13\
Additionally, OPM can respond to requests for interpretations of
classification issues and advisory opinions. Although OPM does not have
the authority to require TSA to reclassify positions, OPM may determine
that positions have been misclassified and therefore do not qualify for
law enforcement retirement benefits.
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\12\ 5 CFR 842.808(a).
\13\ 5 CFR 842.808(c).
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In our opinion, as a subject matter expert, OPM can help TSA ensure
that OOI law enforcement positions are properly classified according to
statutes and regulations. This could help establish an efficient and
cost-conscious organizational structure for OOI. Noting that OOI took
no action to reclassify position misclassifications previously
identified by OHC and its contractor, we believe that OPM would be the
best organization to conduct this work independently and objectively.
Without an objective and comprehensive workforce analysis of law
enforcement position designations, OOI cannot ensure that it is using
its staff and funding as efficiently as possible.
PLANNING, PERFORMANCE, AND QUALITY CONTROL
OOI did not effectively plan its work, did not adequately measure
its performance, and did not have quality control procedures to ensure
that all divisions complied with standards that the office had
committed to using in its work. OOI also could not require other TSA
offices to respond to its recommendations. In addition, TSA did not
hold OOI accountable for developing and implementing effective quality
controls over its resources, staffing, and operations. As a result of
the issues that we identified with OOI's quality controls over its work
products, TSA management may not be able to rely on this work, and the
office may not have accomplished its mission to identify and address
transportation security vulnerabilities.
OOI did not create an annual work plan to identify projects for
each division to complete and the resources needed for each project.
OOI divisions were not required to submit annual work plans for
approval to ensure that OOI's planned work was consistent with TSA's
priorities. Without an approved plan, OOI may not have been held
accountable for accomplishing planned projects and could not
effectively measure its annual performance.
OOI did not establish adequate performance measures or set
standards to demonstrate its improvement over time. The office also did
not create outcome-based performance measures, which would compare the
results of its activities with the intended purpose, to assess its
operations. Although OOI collected data to measure each division's
output, such as the number of recommendations made, the number of
offices inspected, and new investigations opened, these measures did
not tie output to goals. During our audit, OOI indicated that it would
begin to include more outcome-based metrics in its performance
measures.
Without an annual work plan and without adequate outcome-based
performance measures, OOI could not prepare an annual budget plan based
on proposed work. Although OOI submitted a spending plan to TSA based
on historical data, including its salary obligations, travel,
contracts, and training, it did not track actual spending against the
plan. Without a work plan as a basis for an annual budget plan, OOI was
unable to demonstrate that it was effectively managing and distributing
its resources.
OOI did not have accurate information on project costs. Not all OOI
personnel were required to record hours spent on projects or report
other resource-related information in the existing data management
system, and use of the system varied by division. Recording project
hours provides the basis for estimating and tracking project costs.
Without consistent use of the data management system, OOI could not
accurately measure project costs and could not ensure efficient use of
resources.
OOI did not establish quality control procedures to ensure that all
its divisions complied with applicable professional standards, such as
Government Auditing Standards and the Council of the Inspectors General
on Integrity and Efficiency Quality Standards for Inspection and
Evaluation. Although OOI is not required to follow these standards, the
office committed to using them in conducting its work. For instance,
although during our audit it took steps to comply, the Internal Review
Division had not been externally peer-reviewed as required by
Government Auditing Standards.
To determine air carriers' compliance with 9/11 security fee
requirements, OOI conducts audits in accordance with Government
Auditing Standards. For audits that meet all applicable requirements in
Government Auditing Standards, OOI should include a compliance
statement in the report. For audits that do not meet all applicable
requirements, OOI should include a modified compliance statement in the
report identifying the requirement or requirements that were not met.
Consequently, until a peer review is completed, all OOI reports
claiming to meet Government Auditing Standards should have modified
statements.
OOI also did not have policies and procedures to ensure that its
staff members met these standards' training requirements to maintain
technical proficiency. Following these standards would help OOI operate
more efficiently and effectively and would enhance its credibility.
OOI supervisors in the office's three operational divisions did not
adequately review the supporting work papers for reports of
inspections, covert testing, and internal reviews. Of the 29 reports
issued between fiscal year 2010 and the first quarter of fiscal year
2012 that we reviewed, only 6 had evidence of supervisory review.
Supervisory review ensures that the work performed has met its
objectives and that the findings, conclusions, and recommendations are
adequately supported. Without consistent supervisory review, OOI could
not ensure the quality of its reports or that it had adequately
identified and addressed security vulnerabilities.
OOI did not have effective quality controls on data entry and
review in its management information system; therefore, it could not be
certain of the accuracy and reliability of its trend analyses and
updates on the status of its operations. For example, misspelling words
in the system could result in employees not identifying all of the
investigations in a query when totaling the number of investigations.
In October 2011, after receiving conflicting information on the number
of investigations OOI had completed, the TSA deputy administrator at
the time identified data accuracy as an issue.
OOI's recommendations resulting from its inspections, covert
testing, and internal reviews were not always implemented. According to
an OOI official, TSA offices were not required to respond to or
implement OOI's recommendations because OOI did not have the authority
to require compliance with its recommendations. OOI also did not have a
formalized process to monitor responses and implementation of
recommendations or a resolution process to resolve instances of
nonconcurrence. As a result, TSA may have missed opportunities to
address transportation security vulnerabilities.
RECOMMENDATIONS
We made 11 recommendations to TSA that, when implemented, should
lead to more efficient and effective operations, improve transparency
and accountability, and enhance efforts to protect the Nation's
transportation systems. TSA concurred with all of our recommendations.
In late December 2013, we received updates from TSA on some of the
recommendations, which we are currently reviewing. Below are the
recommendations and their current status.
Our first four recommendations related to OOI's criminal
investigators.
We recommended that the assistant administrator for OOI:
1. Ensure that OOI criminal investigators in primary positions meet
the Federal 50 percent minimum workload requirement and meet
all LEAP requirements as a condition of receiving this premium
pay.
Recommendation 1 is unresolved and will remain open until OOI
provides documentation showing how it will ensure that its
criminal investigators are meeting the legal requirement to
spend at least 50 percent of their time conducting criminal
investigations, which is required to qualify them as law
enforcement officers and make them eligible for LEAP. In its
response to our report, TSA did not specifically state how it
will ensure criminal investigators meet this requirement.
2. Finalize and implement OOI's management directive on LEAP
policies and procedures to require all employees receiving LEAP
to document their work hours in the OOI database.
Recommendation 2 is resolved and closed. TSA has directed that all
employees who receive LEAP must document their work hours.
We also recommended that the TSA Deputy Administrator:
3. Conduct an objective workforce analysis of OOI, including a
needs assessment, and perform a position classification review,
ensuring that those conducting the review, such OHC or OPM, are
independent of the process.
Recommendation 3 is unresolved and open. In its response, TSA
agreed to have a workforce analysis conducted of OOI, but that
analysis will be limited to the Audits and Inspection Division
and the Security Operations Division. TSA made no mention of an
analysis of the criminal investigators in the Internal Affairs
Division, which at the time of our audit, comprised
approximately 82 percent of the total number of OOI criminal
investigators.
4. Upon completion of the workforce analysis and position
classification review, reclassify criminal investigator primary
positions that do not or are not expected to meet the Federal
workload requirement. In addition, ensure that secondary law
enforcement positions are properly classified in accordance
with Federal regulations. Proper classification of supervisors
depends on correctly classifying the individuals they
supervise.
Recommendation 4 is unresolved and open. Although TSA agreed to a
workforce analysis, it will be limited to the Audits and
Inspection Division and the Security Operations Division.
To improve the quality of OOI's inspections, covert testing, and
internal reviews, we recommended that the assistant administrator for
OOI:
5. Require OOI to develop a detailed annual work plan to be
approved by the assistant administrator, which contains
project-specific information, including purpose, duration,
realistic cost estimates, and required staffing.
Recommendation 5 is resolved and open. In its response TSA stated
that OOI has developed a work plan for the Audits and
Inspection Division and Special Operations Division. These
plans will be combined into one plan for approval by OOI's
assistant administrator. TSA provided its response and proposed
implementation plan for corrective action. We are currently
evaluating TSA's response.
6. Ensure that OOI develops outcome-based performance measures for
its programs, projects, and operations to evaluate efficiency
and effectiveness.
Recommendation 6 is unresolved and open. TSA responded that OOI has
developed overall performance metrics for the office. In
reviewing TSA's corrective action plan, we believe the proposed
action does not fully address the intent of the recommendation
because it focuses on goals rather than outcome-based
performance measures. The recommendation will remain open until
TSA provides documentation to support that OOI has developed
and implemented outcome-based performance measures that
evaluate the efficiency and effectiveness of the office.
7. Periodically assess the results of OOI's performance measures to
assess progress toward meeting the intended goals and revise
programs as necessary.
Recommendation 7 is resolved and open. TSA responded that OOI
tracks conformance to performance measures quarterly and
annually and will continue to track the outcomes. This
recommendation will remain open until OOI provides
documentation that it periodically assesses outcome-based
performance measures, not only goals, for its programs,
projects, and operations to evaluate their efficiency and
effectiveness.
8. Ensure that OOI requires staff members to document hours spent
on projects in its management information system, and ensure
that criminal investigators document hours to support LEAP.
Recommendation 8 is resolved and open. TSA provided its response
and proposed implementation plan for corrective action. We are
currently evaluating TSA's response.
9. Establish a quality assurance program to ensure that OOI
complies with applicable professional standards such as
Government Auditing Standards and the Council of the Inspectors
General on Integrity and Efficiency Quality Standards for
Inspection and Evaluation. This program should include:
Tests of the quality and reliability of data in the
office's management information system.
Evidence that staff meet continuing professional education
requirements.
Documentation of staff's independence for each project.
Quality control reviews to ensure that the work products
meet professional standards.
For recommendation 9, TSA provided its response and proposed
implementation plan for corrective action. We are currently
evaluating TSA's response.
10. Ensure that OOI expeditiously completes its action to have an
external peer review of its efforts to audit air carriers and
continues to have an external peer review of this work at least
once every 3 years. Prior reports that did not comply with
Government Auditing Standards need to be modified and reissued
with language that OOI was not fully compliant with Government
Auditing Standards when the audits were conducted.
Recommendation 10 is resolved and open. TSA provided its response
and proposed implementation plan for corrective action. We are
currently evaluating TSA's response.
11. Develop and implement a policy for recommendation follow-up and
resolution to ensure that other TSA offices respond to all of
OOI's recommendations, and establish a resolution process when
offices do not concur with recommendations.
Recommendation 11 is resolved and open. TSA has provided its
response and proposed implementation plan for corrective
action. We are currently evaluating TSA's response.
Mr. Chairman, this concludes my prepared statement. I welcome any
questions you or other Members of the subcommittee may have.
Mr. Hudson. Thank you, Ms. Richards.
We appreciate all of you being here today.
At this point I will recognize the Ranking Minority Member
of the subcommittee, the gentleman from Louisiana, Mr.
Richmond, for his opening statement.
Mr. Richmond. Thank you, Chairman Hudson.
Let me just thank you for convening this hearing, and the
witnesses for appearing today and for your testimony.
As you all know, the work that this subcommittee does is
extremely important. We are tasked with making sure that the
Transportation Security Administration fulfills its mission of
protecting the Nation's transportation systems to ensure
freedom of movement for our people and our commerce.
More importantly, we are tasked with ensuring the safety of
American citizens as they travel across this Nation. To
accomplish this mission we must ensure that every office within
the Transportation Security Administration is operating both
effectively and efficiently.
The report released in September 2013 by the Department of
Homeland Security's Office of Inspector General regarding the
Office of Inspection is both alarming and scathing. The report
details that the Office of Inspection is not operating at
maximum efficiency or in a cost-effective manner because of a
top-heavy structure.
Specifically, the Office of Inspection employs personnel
classified as criminal investigators despite their duties not
fitting the classification of criminal investigations according
to Federal regulations. This classification allows these
criminal investigators to receive enhanced benefits and LEAP
pay. According to the OIG report and, as I understand it, two
prior reports, substantial savings could be achieved by
reclassifying these criminal investigators in a manner
consistent with the needs of the Office of Inspection and the
type of work they perform.
Undoubtedly, there are many examples of instances in which
the Office of Inspection has helped thwart the efforts of
nefarious actors who mean to do our Nation harm. That, however,
does not diminish the need for us to use our resources
effectively so that we can operate at maximum efficiency.
It is my hope that through the questions and testimony we
gather today we can get further insight about where these
inefficiencies are occurring, how we can reallocate our
resources in an effective manner, and also what can be done
structurally within the TSA so that when these structural
problems are first brought to light they can be quickly
addressed.
I look forward to the continued dialogue and hope that the
work that we do here today aids in making the Transportation
Security Administration stronger, more efficient, and more
effective.
Before yielding back I would like to note that this is the
first hearing of the subcommittee in the second session of this
Congress. It is my expectation that this subcommittee will be
as bipartisan and productive this year as it was last year,
when our subcommittee produced four out of the five bills that
the committee saw pass the House.
I look forward to continuing to work with the Chairman to
see that the bills we sent to the Senate in December, including
Ranking Member Thompson's bill to codify the aviation security
advisory committee, becomes law this year.
With that, Mr. Chairman, I will yield back.
Mr. Hudson. Thank the gentleman, and I thank you for the
comments. I share the sentiment that we want to continue to
work in a bipartisan way to find solutions for the American
people here.
At this point I will recognize myself for questions.
The I.G. report states that TSA could save $17.5 million
over the next 5 years if it reclassified the criminal
investigators to non-law enforcement positions. According to
the I.G., the amount of criminal cases conducted every year
does not support all the TSA's criminal investigators so
reclassifying these positions is necessary and appropriate.
Mr. Allison, do you agree with the I.G.'s assessment that
employees in non-law enforcement positions like transportation
security specialist can perform the work of most of your 100
criminal investigators? Why or why not?
Mr. Allison. Thank you, Mr. Chairman.
Actually, I do disagree with a certain point of that. I
mean, when you look at this type of work, what is pretty much
consistent in this field is tracking your hours against the
cases, so admittedly the organization did not track its hours.
So if the investigators were working criminal cases or
administrative cases and they did not track their hours one
wouldn't be able to tell what their workload was.
So, for example, the 1,125 cases that the Office of
Investigations for the I.G. reviewed in 2011, they identified
some 40 percent that were collateral, meaning cases that other
agencies investigated. But I would submit to you, Mr. Chairman,
that those cases represent the most minimal amount of time
because anytime someone is arrested, indicted, or under
investigation by another law enforcement agency, given our
mission, those people are a threat or a risk to our security
mission.
So what is pretty consistent in this career field is you
would open a case and that is how we monitor those individual
cases. So although they identified 423 cases, or some 40
percent of the 1,125, without the time you wouldn't know if
that constituted a majority of the workload.
I will contend, having experience in this business, that
the majority of the workload was divided between the criminal
cases and the administrative cases and less to the 423. But
again, I just want to acknowledge that, you know, our
organization erred in not tracking those hours and you would
not be able to discern what the workload truly was, so at first
glance you would assume, given those 423 cases, a lot of work
went there, but not necessarily the case.
So I do believe we can, you know, through this analysis,
take a look at our work through predictive analysis, through
some of the work we have already done, and make a determination
if we need to, you know, reduce the numbers of some of our
investigative staff.
Mr. Hudson. But to do these types of review where another
agency is doing the investigation and your folks are
monitoring, do you need the law enforcement classification to
do that--1811 versus some other classification?
Mr. Allison. I am sorry, Mr. Chairman. Yes, I mean, we can
reduce some of our staff and augment our staff with non-
criminal investigators, there is no question, because all that
information is coming back and it is being recorded and the
cases are being updated, so yes.
Mr. Hudson. So of the 100, how many do you think we could
reduce out of that category?
Mr. Allison. Well, Mr. Chairman, as I stated in my opening
statement, since I have been there I have reduced by 6 percent.
I believe we can reduce further. I don't have an accurate
account for you. I mean, I am confident that we can attrit some
of our positions.
Mr. Hudson. Okay.
Ms. Richards, would you like to comment on this response,
or----
Ms. Richards. I would like to comment.
Yes, one of the main concerns is, as Mr. Allison says, the
Office of Inspections was not having its employees record what
they were actually doing so it was impossible to discern with
certitude how many hours were spent on a criminal investigation
versus an administrative investigation or on a collateral
investigation or on an inspection or an internal review or
covert testing. One of our recommendations to which they have
agreed and taken action is to start recording exactly what the
employees are doing, which will help them tremendously evaluate
their workforce and complete the workforce analysis that we
have asked them to do.
It is also our contention that they could reduce the number
of criminal investigators they have and that, for example, the
collateral investigations could be conducted by non-criminal
investigators.
Mr. Hudson. Thank you.
In order to enforce the time limits I am going to enforce
them on myself and go ahead and conclude my questions and call
on the Ranking Minority Member of the subcommittee, the
gentleman from Louisiana, Mr. Richmond for any questions he may
have.
Mr. Richmond. Well, let me start with Ms. Richards where
you just left off and the fact that they didn't accurately
track their hours. I guess my question is: If they are not
tracking their hours and they don't adequately say what their
hours are going to and what case they are assigned to and all
of that, how do you feel confident in your numbers? Because I
guess we would all rely on the same reporting in order to draw
conclusions, so I guess I am wondering, how did you draw your
conclusions since they are not doing that?
Ms. Richards. Our Office of Investigations had done an
inspection of their criminal investigators and analyzed the
workload that was completed. We also know what types of cases
we refer to TSA.
As you are aware, the Office of Inspector General has
primacy on cases--criminal cases involving Department of
Homeland Security employees, so TSA shows us the cases and when
they are truly criminal or serious nature in general, our
office takes those cases on and we refer back to TSA cases that
are administrative in nature or what they call de minimis,
which would mean that the cases were for an issue that was
minor in nature and would be unlikely to be accepted for
prosecution as a criminal case.
Mr. Richmond. Ms. Shelton Waters, let me shift over to you,
and I know you haven't been there a very, very long time, but I
would assume that you are there because you are very good. Part
of what I guess my question to you is just an assessment
whether your office has the internal capacity to do inspections
and reviews on your own or are you going to need to continue to
contract out to have others do inspections?
Ms. Shelton Waters. Thank you for the question, sir. So I
think absolutely internally we have the ability, we have the
subject-matter expertise to lend to the overall discussion.
Our model right now, though, really is to have contractor
support for what we do in OHC and it is a model that we have
had for the last 9 years or so. So my staff is about 200 right
now and that includes all of my FTE. But again, we use
contractor support to augment or to supplement what we do
there.
So whatever work we end up doing with OOI--and we
absolutely plan to be very robust in how we go about figuring
out the right mix--the right levels of 1811s versus the other
workforce that OOI needs to accomplish their mission--we will
continue to rely on contractor support for that.
Mr. Richmond. Do you think contractor support is the most
efficient way to do it? I guess the reason why I am asking--and
this is not my area of subject-matter expertise--that when you
contract it out you get the result or the report that you are
looking for but there is--that ends the on-going and long-term
dialogue and coordination between agencies; and if you were
able to do it in-house then you would have the same people
there over the long term who could hopefully interact and
monitor progress without having to go back to contractors.
Ms. Shelton Waters. So I don't disagree with your
assessment. One of the things that I looked at in the first 30
days that I was in the Office of Human Capital was how we want
to build our model for the future.
The contract support that we currently have--the
overarching contract support--expires at the beginning of 2017.
My goal is to position us for what I consider to be a less
risk--or a more risk-based approach, meaning that I will have a
better understanding of the mix of Federal-to-contractor
support than what I have today, and that will be our model
moving forward.
Mr. Richmond. Mr. Allison, it is my understanding and just
my opinion that everybody at the table, everybody up here, we
are all on the same team, although sometimes I differ from my
colleagues on the other side of the aisle, but we are all on
the same team and we want to be as efficient and productive as
possible.
It appears to me, just looking at the reports, unless you
can just tell me, ``Something is flat-out wrong. We don't have
efficiencies there. Other people can't do these criminal
investigations, and we are not paying too much in LEAP pay and
others,'' why can't we all get together and figure out what is
the appropriate number, how much we can save so that we can
take those savings and put it right back into homeland security
or making the traveling public easier, reducing--I mean, I just
don't understand how, if we are all on the same team, why we
don't get together and fix it? Can you explain that to me?
Mr. Allison. Sure, Mr. Richmond.
I don't disagree. I mean, in these times we need to look
within our organizations and be more efficient, when we can,
where we can. The reason we reduced by 6 percent was just
through that process. You know, I didn't have a report at the
time when I walked in the door. Any time I have a vacancy the
question I ask is: ``Do we still need this position? Do we
still need this position at that grade?''
So you are right. We have an obligation to be as efficient
as we can.
With respect to this problem, sir, there were various
reports but again, I would contend what is missing from this
equation, as you alluded to, without time attached to these
numbers they don't tell the whole story. So again, you know, a
case is just a file and it may not represent any time at all
other than just an update.
So to the Chairman's point, do you need an investigator--a
criminal investigator for that percentage of workload that you
know you are always going to have? The question comes: How do
we balance our cadre of folks? Do we attrit down to a certain
number and augment with non-criminal or do we just attrit down
to a number and have those positions and work be done and
contained as long as people are abiding by the law?
So I don't disagree with you. I think this process that we
are about to embark upon, you know, analyzing this data,
recognizing the I.G.'s responsibility--you know, the cases that
they take and the cases that they don't take. As I alluded in
my opening statement, they took 3 percent of the cases--of the
423 that we referred last year.
I would disagree with my colleague; it has nothing to do
with whether it prosecutes or not, they don't have the capacity
to do this work. Their report to Congress for 2012 basically
alludes to the fact that they refer a lot of cases back to the
components for investigation.
So we certainly need to have a cadre. One hundred is
probably not the right number; it is certainly not zero. We are
going to work and, you know, I assure you, we are going to fix
this problem.
Mr. Hudson. Thank you.
The Chairman will now recognize other Members of the
committee for questions they may wish to ask the witness. In
accordance with our committee rules and practices, I plan to
recognize Members who were present at the start of the hearing
by seniority on the subcommittee. Those coming in later will be
recognized in the order of arrival.
At this time I will recognize the gentleman from Alabama,
Mr. Rogers.
Mr. Rogers. Thank you, Mr. Chairman.
You know, the Senate is having a hearing similar to this
today and it has been pointed out over there that tracking
overtime is a problem Department-wide. Is that something you
would agree with or do you think it is just happening in your
Department--TSA?
Mr. Allison. Thank you, Mr. Rogers.
Again, no question OOI did not track their hours against
cases--I mean, allocating hours towards the cases, that did not
happen. They did track their law enforcement availability pay
hours, meaning the 2 hours they must be available every day, on
hard copy. That wasn't available in an automated fashion. But
they did not track the hours, so a little bit of a different
problem.
Mr. Rogers. Okay. The I.G. recommended in its report that
TSA conduct a workforce analysis to determine the appropriate
OOI staffing levels. TSA stated that it would conduct this
analysis for the audits and inspections division and the
security operations divisions of OOI; however, there is no
indication that TSA will analyze the internal affairs division,
which contains over 80 percent of OOI's criminal
investigations.
Mr. Allison and Ms. Waters, why is TSA not including the
internal affairs division in its upcoming workforce analysis?
Ms. Waters first.
Ms. Shelton Waters. So I don't think that we are opposed to
including that part of OOI in that analysis. I believe--and I
apologize for not having the full information on that--I
believe that there was an understanding at the time that that
was done that the numbers that were being questioned were in
those two divisions.
But as Mr. Allison indicated, whether it is through this
particular contract support or through the tools that we have
in OHC, we do plan to do a full analysis of the Office of
Inspections to understand what the right mix of workforce
levels should be.
Mr. Rogers. Mr. Allison, do you have anything to add?
Mr. Allison. No, sir. I completely agree. I mean, we are
going to embark upon this endeavor to do this analysis. You
know, we need to include the full cadre of criminal
investigators so I have no objection to that and I think it is
a good idea.
Mr. Rogers. Ms. Richards, do you have a comment? Do you
think that it is important for the internal affairs division to
be looked at?
Ms. Richards. Absolutely. I think it is critically
important as part of the workforce analysis that the entire
office be looked at.
Mr. Rogers. Okay. Ms. Richards, in your view, what entity
is in the best position to conduct an objective, comprehensive
analysis of OOI's workforce and give clear direction on how to
fix the problem?
Ms. Richards. As we stated in our report, we believe that
OPM would be the best entity within the Government to do this
workforce analysis and the reason that we believe that is
because previous studies by OHC and a contractor working for
OHC reached conclusions that were similar to those that we
reached with our audit work but those reports, although they
made recommendations, were disagreed with, and the
recommendations were not implemented.
Mr. Rogers. Okay. In your opinion, Ms. Richards, should TSA
have the unique authority to set its own employee
classifications or should it be brought under OPM's employee
classification system?
Ms. Richards. That is a really broad question. Based on our
limited audit work I wouldn't be prepared to answer it at this
time. I do have concerns with this particular office that we
audited that they need to do a thorough workforce analysis and
bring it in line with what is appropriate for the workload that
they have.
Mr. Rogers. I would like you to revisit the question I
asked Mr. Allison at the beginning of my time, and that is: Do
you think that the problem with tracking overtime is unique to
TSA or do you think it is across the whole Department of
Homeland Security?
Ms. Richards. In regards to administratively uncontrollable
overtime, which is the subject of the other hearing, a number
of those cases have been referred to the Office of Inspector
General and we are just initiating our audit review of those
cases. Based on what the special council has found, it does
seem that there is a problem with AUO in the Department of
Homeland Security.
It is slightly different than what is the problem in--that
we are talking about in the Office of Inspection, but there are
distinct similarities in that there seems to be a culture of
entitlement that regardless of whether the specific work
supports it or not or whether the documentation was there to
support it or not, the money will be paid.
Mr. Rogers. Great. Thank you.
I yield back, Mr. Chairman.
Mr. Hudson. Thank the gentleman.
At this point the Chairman will recognize the gentleman
from South Carolina, Mr. Sanford.
Mr. Sanford. Yes. I just want to follow up again with Ms.
Richards.
So if you look at the whole question of log books and
hours, there has been a question raised here, if you look at
the mismatch between criminal activity, number of criminal-
related employees, and ultimately payroll budget, it seems like
there is a mismatch there. In your findings, were there other
mismatches that maybe didn't, you know, ultimately get surfaced
in this audit but that were areas of concern that are worthy of
conversation?
Ms. Richards. I wouldn't say mismatch between employee
skill sets and the duties that they were assigned. We had other
concerns with the work that was being produced by the Office of
Inspection.
For example, they were doing audits and saying the audits
were conducted under Government auditing standards but they
weren't meeting all of those standards. Some of the work didn't
have indications of any supervisory review; the employees
weren't necessarily receiving the training they needed to
conduct these audits; they weren't always following the rules
for documenting their independence.
So we had a number of issues with the other work that was
being done but not necessarily with a mismatch between the
skill sets of the employees and the work that was assigned
them.
Mr. Sanford. Why do you think--I would call it a mismatch;
you wouldn't call it a mismatch--there was this overlay between
demand, if you will, from a criminal investigative needs
standpoint, and number of employees and compensation accrued?
In your estimation, why did that exist?
Ms. Richards. Looking back at how the office was stood up,
I believe the anticipation was that they would need that many
criminal investigators and that was never thoroughly examined
in the history of the office. So, having stood the office up
that way, they continued to grow it that way; that is the kind
of individual that they hired and they attracted and that they
used for the work that they considered important because these
are good, solid employees and they felt that they were getting
a good, solid product.
Without doing a workforce analysis and really seeing
whether they were meeting the requirements for the law
enforcement pay and entitlements, they were paying people
probably more than they should have been because they weren't
doing that work.
It is easy to see how the office was stood up in a hurry
when TSA was stood up, but over the years that the office has
existed they had, in my opinion, more than adequate time to do
a workforce analysis and determine what their workload really
was, and I believe they should have done so but they did not.
Mr. Sanford. This, in your opinion, was not just a sloppy
way of basically paying people more?
Ms. Richards. I didn't find any evidence of that. I didn't
find any evidence of intentional wrongdoing. I found evidence
that they believed this was appropriate, and lacking the data
to say differently and perhaps not the attention to detail that
an auditor would give to determining all of the detailed
information that would support their decision making.
Mr. Sanford. How about throughput--the number of
prosecutions that actually occurred? Did you look at that into
the equation in your study, as well?
Ms. Richards. We did not. Our Office of Investigations had
recently looked at the workload of the criminal investigators
and so we did not evaluate the quality of the workload or the
results of those.
Mr. Sanford. I am not saying quality, but just quantity, if
you will. I mean----
Ms. Richards. I don't have the statistics with me. I could
get them for you.
Mr. Sanford. No, no, no.
Mr. Allison, would you have counterpoint to what she said
or----
Mr. Allison. Yes. Thank you, Mr. Congressman.
I do agree that some quantitative analysis should have
occurred at some point to give us some baseline as to how many
of these individuals that we should have. I would agree with
her.
I came up in the Federal Marshal Service from TSA since
2002. I don't know what led to the number of, you know,
whatever it was--when I walked into the job it was 106. The
I.G. report quoted 124 but we are at 100 now, so this is where
we are now.
So I do agree some sort of analysis should have been done,
but I think, like I said before, sir, not documenting our
hours, not accounting for our work is not the same as not doing
the work. So last year we--I think we closed 887 cases; about
70 percent of those cases really were violations of criminal
laws of the United States. Of the ones we----
Mr. Sanford. How many prosecutions came as a result?
Mr. Allison. Sir, I have to get back to you on that
information, I will provide it for you. I want to say around 18
or so--a very low number. But, sir, as you know, I mean, those
are subject to DOJ guidelines and prosecutorial thresholds and
all that stuff.
Mr. Sanford. I see I burned through my time.
Thank you, Mr. Chairman.
Mr. Hudson. Thank the gentleman.
I will now recognize the gentlelady from Indiana, Mrs.
Brooks.
Mrs. Brooks. Thank you, Mr. Chairman. Thanks for holding
this hearing.
When you talk about TSA and when it was stood up and how it
has changed over the years, I happen to have been a United
States attorney, Southern District of Indiana, when TSA was
stood up, so I have kind of watched--and served from 2001 until
2007, so watched TSA grow, was a part of conversations in
Indiana in supporting TSA and, you know, want to thank you all
for your service and what, you know, how important it is. I
defend TSA with constituents day in and day out about the
importance of keeping this country safe.
I also, though, know that the number of prosecution cases
the U.S. Attorney's Office, you know, takes are limited because
of their limited resources, but I do think there was a
response--TSA did respond--I am just following up on
Congressman Sanford's point. OOI opened 582 criminal cases in
2012, 611 in 2013. Are you familiar with these numbers that--
and of those cases, U.S. attorneys accepted 12 for prosecution
in 2012 and then 18 in 2013.
Can you help us understand what seems to be the problems--
and I have been on the other side of the U.S. attorney making
those decisions and with an office making the decisions about
what to prosecute and what not to prosecute, but I am kind of--
they do seem to be fairly low numbers. For the numbers that are
opened, if you are opening hundreds and it is not minimizing
the work that is going into it, but what has happened with the
Justice Department and the guidelines--what are the guidelines
they are using to have to decide--or what have they told you
the guidelines are to decide whether or not to prosecute or
not?
Mr. Allison. Yes, ma'am. I do not know unequivocally. When
we got that request we did get some data from our supervisors
in the field and I directed a 100 percent accounting of the
casework to--so we can look at every individual case through
2011 and 2012 and get an accurate accounting so I can report
back to the committee.
But to your prominent question, a lot of our criminal cases
are thefts. From my experience in the year-and-a-half I have
been in this office I think, you know, they would defer for
administrative resolution.
We do get some prosecutions on OWCP cases. Those are
typically the larger amounts of cases. Those cases aren't
accepted by the DHS OIG; those are always returned back to TSA.
Mrs. Brooks. I am sorry, what kind of cases are those?
Mr. Allison. Office of Worker's Compensation fraud. I am
sorry, ma'am.
Mrs. Brooks. Okay.
Mr. Allison. Most of those cases--all of those cases go
back to TSA, so we had a few prosecutions in that area. One of
the prosecutions we had this year in the District of Maryland
was time theft--fairly large amount related to time theft.
So typically, the larger dollar amounts seem to get the
interest of prosecutions where the lower dollar amounts do not.
Mrs. Brooks. So of those prosecutions, were those typically
done by your agency alone or were those with other
investigative agencies involved?
Mr. Allison. Ma'am, they would have been our agency.
Mrs. Brooks. So have the prosecutors said there is a
monetary threshold because of their sentencing guidelines that
is then determining whether or not they are taking the cases or
not taking the cases?
Mr. Allison. Ma'am, I would contend that it varies upon the
district. You know, some districts like New York have a very
high threshold for prosecution that are extremely busy; some--
in Nevada, you know, they prosecuted a gentleman, I think, for
stealing a pair of boots. So it varies.
Mrs. Brooks. So if there are those disparities across the
districts--and I appreciate that that does happen--when they
get sent back, they are not prosecuted in the district courts,
have you produced any reports--and I am just sorry that I don't
know--as to what happens to all of those theft cases involving
TSA employees that aren't prosecuted? How are they being
handled within the agency?
Mr. Allison. Well, that is a great question. I will assure
you that those cases go over to Office of OPR and those people
generally on theft cases are dismissed.
Mrs. Brooks. So general theft cases are dismissed by OPR?
Mr. Allison. Well, no. I mean, the--I am sorry, the
employees are dismissed----
Mrs. Brooks. The employees, okay. Thank you. I wanted to
clarify.
Mr. Allison. So once our investigations are concluded, if
they are declined for prosecution those go to my colleague at
OPR and they actually render administrative discipline on those
cases.
Mrs. Brooks. Is that an annual report that we would have
ability to review and to take a look at to see what is
happening with all of those other cases that are not being
referred for criminal prosecution? Is that in a report form?
Mr. Allison. I will be happy to give you a report----
Mrs. Brooks. Okay.
Mr. Allison [continuing]. And show you what we have done
with the cases over the years, and to the ones to your question
that aren't prosecuted.
Mrs. Brooks. Just very briefly, one case that was
prosecuted which I think is an incredibly important case that I
am curious about the skill sets of the investigator, the case
from 2009 involving the logic bomb that was actually inserted
into the TSA system--the computer program file of the TSA
operation system. Do you feel that we have the investigators
properly trained to detect the cyber crime within TSA or cyber
terrorism within TSA?
Mr. Allison. Well, two points, ma'am. Typically an
allegation of that would get referred to the I.G., and I think
that one did, and we had to actually exercise, as I
understand--I wasn't there at the time--you know, some very
quick response to mitigate this issue. So with the investigator
we had some I.T. professionals and we had a computer forensics
agent and I think those folks went to Colorado Springs and
worked that case and were able to resolve that issue
successfully.
Mrs. Brooks. Well, I would be interested in knowing how
many of all of these investigators that we have actually have
the expertise. That is a very important area that I think the
whole country is very concerned about and I would be very
curious--investigating thefts of baggage and other things,
dramatically different skill set than investigation of the
computer--the TSA computers and any, you know, cyber issues
there.
So I would love to know and would ask that you provide for
us what kind of training your investigators are also getting
with respect to cyber crime.
I have exceeded my time and yield back. Thank you.
Mr. Hudson. Thank the gentlelady.
I want to thank the witnesses for your testimony, for your
service to our country.
I am very pleased we were able to get through the hearing
before they called votes. Thank the Members for their questions
and participation today.
The Members of the subcommittee may have some additional
questions for the witnesses and we ask that you respond to
these in writing.
Without objection, the subcommittee stands adjourned.
[Whereupon, at 2:20 p.m., the subcommittee was adjourned.]