In a report submitted to the White House and Congress on Thursday, the federal Office of Special Counsel
(OSC) details what it calls a “profound and entrenched problem” at DHS and a “gross waste of government funds.” Based on the testimony of seven whistleblowers, the OSC concludes that the pervasive misuse of overtime pay in six DHS offices, including four within Customs and Border Protection (CBP), comes to $8.7 million a year.
At issue is Administratively Uncontrollable Overtime, known as AUO, which is meant only to compensate for urgent and unanticipated work like that often undertaken by law enforcement agents.
But Carolyn Lerner, special counsel at the OSC, an investigative and prosecutorial agency, said in an interview that many employees across DHS now consider the overtime pay their due. She said the whistleblowers’ testimony suggests that the department’s bill for these improper payments is running in the tens of millions of dollars a year.
“These are not border patrol guys chasing bad guys who can’t stop what they are doing and fill out paperwork for overtime. We are not questioning that,” Lerner said. “These are employees sitting at their desks, collecting overtime because it’s become a culturally acceptable practice.”
Over the past year, as federal cuts have torn through department budgets, the use and misuse of overtime has become a matter of increasing concern among federal managers, employees and unions.
Asked about the special counsel’s report, a DHS spokesman said acting Secretary Rand Beers has ordered a department-wide review of how AUO is used and whether it complies with the law and other rules.
“DHS takes seriously its responsibility to ensure proper use of taxpayer funds,” said spokesman Peter Boogaard. “While many frontline officers and agents across the department require work hour flexibility, often through the use of Administratively Uncontrollable Overtime (AUO), misuse of these funds is not tolerated.”
In a written response to the special counsel’s allegations, the CBP’s assistant commissioner for internal affairs, James F. Tomsheck, said the agency would “work towards a unified and simplified agency-wide directive on AUO” and would show all employees a video to reinforce rules on proper AUO use.
Federal employees across a range of agencies are eligible to receive this kind of overtime pay, and each agency has some latitude to determine how to regulate it. The Office of Special Counsel said it had not received reports of abuses other than at DHS.
Some DHS employees routinely claim more than their “straight eight,” with two hours of overtime every day, recounted one of the whistleblowers, Jose Rafael Ducos Bello, who works as a supervisor for Customs and Border Protection, until recently in Washington.
“It’s pickpocketing Uncle Sam,” Ducos Bello said in an interview. “Employees will sit at their desks for an extra two hours, catching up on Netflix, talking to friends or using it for commuting time.”
He estimated that 27 employees in the Commissioner’s Situation Room, which is part of CBP, improperly put in for a total of $696,000. They ranged from managers, who received up to $34,000 each, to border patrol agents, who received $24,500 each, he said.
“It was such misuse that I felt I had a legal obligation to report. I will sleep better at night,” said Ducos Bello, a 24-year veteran of government employment. “It’s like a father who has a son who commits a crime and has to report it for the health of their child’s future.”
Another whistleblower, Jimmy Elam, a supervisory paralegal specialist for Customs and Border Protection in San Diego, reported that eight administrative employees at his location received a total of $150,000 of improper AUO a year.
“It happens day after day, year after year,” Elam said in an interview. “They are sometimes working, sometimes goofing off or just unaccountable completely. Whatever they are doing, they shouldn’t be doing those extra two hours according to the law.”
Elam, who has worked at his office since 2008, said he had noticed the problem for years but that it began bothering him more after automatic federal budget cuts, known as sequestration, kicked in this year. He said he worried about employees losing work and programs being slashed while employees continued to get overtime payments.
“It’s just wrong,” he said. “But everyone here condones it.”
Other whistleblowers raised concerns about alleged abuses at the Immigration and Customs Enforcement (ICE) facility in Houston and CBP’s Georgia-based Office of Training and Development.
But the union that represents border patrol employees warned against taking a heavy-handed approach to overtime pay. Shawn Moran, vice president of the National Border Patrol Council, which represents more than 17,000 employees, said that AUO has long been “promised, advertised and used by every single agent who’s a non-supervisor.”
“Suddenly now the party line from the agency is this is not part of your base salary,” Moran said. “There’s been a mentality shift in CBP about securing the border; now it’s about securing the bottom line.”
He said there will always be people who misuse pay systems in any agency, but he argued that most of the money is well spent on patrol and enforcement tasks that protect the border and on support tasks such as bringing criminal defendants to trial.
Lerner said her office isn’t questioning the need for legitimate AUO payments, but instead the widespread abuse.
“We recognize that many believe border patrol employees should be better paid,” she said. “But clocking overtime that shouldn’t be there to begin with isn’t the vehicle that should be used to boost salaries.”
Lerner said CBP offered assurances five years ago that it would end abuse of AUO. In a CBP letter issued in 2008 in response to a special council’s report on allegations of AUO abuse at two CBP offices in Washington state, the agency promised to implement “an Agency-wide AUO policy directive [to] bring conformity to the policies and practices.”
But, Lerner wrote in a letter to the White House on Thursday accompanying the new report, “the lack of progress in implementing plans first outlined five years ago raises questions about the agency’s willingness or ability to confront this important problem.”