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87–893 PDF 2014

ABUSE OF OVERTIME AT DHS: PADDING PAYCHECKS AND PENSIONS AT TAXPAYER EXPENSE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 20, 2013 

Serial No. 113–106 

Printed for the use of the Committee on Oversight and Government Reform 

( 

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

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON NATIONAL SECURITY

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

JOHN J. DUNCAN, JR., Tennessee 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

TREY GOWDY, South Carolina 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

KERRY L. BENTIVOLIO, Michigan 

JOHN F. TIERNEY, Massachusetts, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

STEPHEN F. LYNCH, Massachusetts 

JACKIE SPEIER, California 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

(III) 

C O N T E N T S 

Page 

Hearing held on November 20, 2013 ...................................................................... 1 

WITNESSES 

Mr. John Florence, Branch Chief, Use of Force Policy Division, Field Operations Academy, U.S. Customs and Border Protection 

Oral Statement ................................................................................................. 7 

Written Statement ............................................................................................ 10 

The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of Special Counsel 

Oral Statement ................................................................................................. 14 

Written Statement ............................................................................................ 16 

Ms. Catherine V. Emerson, Chief Human Capital Officer, U.S. Department 

of Homeland Security 

Oral Statement ................................................................................................. 23 

Written Statement ............................................................................................ 25 

Mr. Ronald Vitiello, Deputy Chief, Office of Border Patrol, U.S. Customs 

and Border Protection 

Oral Statement ................................................................................................. 29 

Mr. Brandon Judd, President, National Border Patrol Council, American Federation of Government Employees 

Oral Statement ................................................................................................. 30 

Written Statement ............................................................................................ 33 

APPENDIX 

Opening Statement of Chairman Jason Chaffetz ................................................. 64 

Opening Statement of Ranking Member John Tierney ........................................ 66 

Responses to questions from Brandon Judd, National Border Patrol Council, 

from Rep. Maloney for the record ....................................................................... 68 

Border Patrol Union Calls Reformed Pay Structure for Agents in Congressional Testimony .................................................................................................. 84 

Washington Post Article: Homeland Security workers routinely boost pay 

with unearned overtime, report says, By Emily Wax-Thibodeaux, Published: 

Oct 31 .................................................................................................................... 85 

(1) 

ABUSE OF OVERTIME AT DHS: PADDING PAYCHECKS AND PENSIONS AT TAXPAYER EXPENSE 

Wednesday, November 20, 2013 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIONAL SECURITY, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:05 a.m., in Room 

2154, Rayburn House Office Building, Hon. Jason Chaffetz [chairman of the subcommittee] presiding. 

Present: Representatives Chaffetz, Lummis, Mica, Amash, 

Gowdy, Woodall, Bentivolio, Tierney, Maloney, Speier, Kelly, 

Welch, and Lujan Grisham. 

Staff Present: Ali Ahmad, Senior Communications Advisor; Will 

L. Boyington, Press Assistant; Molly Boyl, Deputy General Counsel 

and Parliamentarian; David Brewer, Senior Counsel; John 

Cuaderes, Deputy Staff Director; Linda Good, Chief Clerk; Jennifer 

Hemingway, Deputy Policy Director; Mark D. Marin, Deputy Staff 

Director for Oversight; James Robertson, Senior Professional Staff 

Member; Laura L. Rush, Deputy Chief Clerk; Sarah Vance, Assistant Clerk; Jeff Wease, Chief Information Officer; Sang H. Yi, Professional Staff Member; Jaron Bourke, Minority Director of Administration; Lena Chang, Minority Counsel; Devon Hill, Minority Research Assistant; Peter Kenny, Minority Counsel; Julia Krieger, 

Minority New Media Press Secretary; and Mark Stephenson, Minority Director of Legislation. 

Mr. CHAFFETZ. The committee will come to order. I would like to 

begin this hearing by stating the Oversight and Government Reform mission statement. We exist to secure two fundament principles. First, Americans have a right to know that the money 

Washington takes from them is well spent. And second, Americans 

deserve an efficient, effective government that works for them. Our 

duty on the Oversight and Government Reform Committee is to 

protect these rights. 

Our solemn responsibility is to hold government accountable to 

taxpayers because taxpayers have a right to know what they get 

from their government. We will work tirelessly in partnership with 

citizen watchdogs to deliver the facts to the American people and 

bring genuine reform to the Federal bureaucracy. This is the mission of the Oversight and Government Reform Committee. 

I appreciate everybody being here to today’s hearing. We have 

four people who are here in person that are going to testify. I apVerDate Aug 31 2005 09:54 Jun 04, 2014 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\87893.TXT APRIL
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preciate you being here. We do have one gentleman, Mr. John Florence, who is in southern Georgia, and by mutual agreement between the majority and the minority he will be giving his opening 

statement and testifying via video. 

We will do the questioning of Mr. Florence before we get to the 

questioning of the panel that’s here in person in Washington, D.C. 

At the conclusion of his testimony we will question him, we will 

dismiss him, we will thank him for his participation, and then we 

will focus on the four people that are here today. 

There is a few seconds delay, and so some patience and understanding that he won’t be able to hear us and we won’t be able to 

hear his response for a few seconds given the technology, but I 

think this is the appropriate way to go and I appreciate the indulgence. 

First, I would like to give my statement and then we will allow 

the minority to give their statement. 

It has been brought to light that there are some serious challenges and problems with the use of overtime, often called Administratively Uncontrollable Overtime, or AUO. We are going to look 

today at the desk jockeys who milk the system and the public trust 

and steal from Americans by abusing the system. We are also going 

to try to give more consistency and look at those that are working 

hard on the border and doing the job that Americans deserve and 

need, and the good work that they do, and how we compensate 

them as well. 

Our hearing examines the recent Office of Special Council letter 

to the President which described the pervasive misuse of Administratively Uncontrollable Overtime, AUO, by employees at the Department of Homeland Security. Special Counsel Carolyn Lerner 

found abuse of this form of overtime paid to be, ‘‘profound and entrenched,’’ problem at the Department of Homeland Security, characterizing the practice as, ‘‘a gross waste of scares government 

funds.’’ She will testify that this is not an isolated occurrence, but 

a persistent pattern of costing Americans what could be tens of 

millions of dollars every year, and this is just the Department of 

Homeland Security. 

By definition, Administratively Uncontrollable Overtime is a 

form of overtime pay used to compensate employees who occupy positions requiring substantial amounts of irregular unscheduled 

work. AUO ranges from sometimes 10 to 25 percent of a worker’s 

base pay, and this compensation goes towards their pension. So not 

only if they were abusing it would they be stealing from the American people at the time that it occurred, but they will be compensated for years, if not decades into the future by continuing to 

reap the benefits of that as a calculation for their pension. 

Despite a 2008 investigation by the Office of Special Counsel and 

the subsequent promise of the Department of Homeland Security 

to stop the abuse, CBP failed to implement an agency-wide directive to better manage the overtime policy. Instead, employees were 

shown a video explaining the rules of the AUO. What is intolerable 

is the fact that this was highlighted as a problem in 2008. It was 

pointed out, almost the exact same thing, and yet it still continues 

today. In fact, it seems to have grown and spread. 

3 

Allegations of abuse have come from across the Department, including at CBP’s headquarters in Washington, D.C. The Office of 

Special Counsel’s ongoing review of information disclosed by whistleblowers at just six of the Department of Homeland Security offices found nearly $9 million wasted annually. Again, this is just 

a snapshot of six offices. The Office of Special Counsel substantiated disclosures made by DHS employees that Special Counsel 

Lerner will elaborate on here today. 

Also, equally disturbing are the five additional whistleblower allegations described in the OSC’s letter to the President, including 

the disclosure by one of today’s witnesses, Mr. John Florence. We 

appreciate his participation and willingness to step up and do the 

brave thing. 

It is inexplicable that the Department of Homeland Security 

would allow its employees to regularly abuse the AUO. Despite 

claiming in its budget that CBP is, ‘‘constantly reviewing the use 

of all overtime hours and conducting the operations and activities 

by all employees performed in the field and at the headquarters 

level.’’ That is not true. That is not true. And we are going to explore why Homeland Security thinks that they can put out such a 

grandiose statement. 

The Department of Homeland Security’s abuse of the public trust 

by routinely claiming AUO up to 2 hours a day every day, including the Department of Homeland Security headquarters and while 

on training assignments where no qualifying circumstances appear 

to exist. We are not talking in this instance necessarily about the 

people that are actually on the border, driving out from Yuma a 

couple hours to go to their station. That is not what we are talking 

about. We are talking about desk jockeys who are sitting at headquarters and at training facilities where it is fairly predictable 

what is going to happen. There is a difference. There is a difference 

and we are going to explore that. 

Was the Department of Homeland Security unable or unwilling 

to bring an end to the longstanding practice that pads the pockets 

and pensions of Homeland Security employees who watch sports 

and entertainment channels on a daily basis at taxpayer expense? 

Part of the answer to this question may stem from the fact that 

this behavior was endorsed by management in many cases, also 

practiced by management themselves. 

According to CBP’s own data, in 2013 agents at Border Patrol 

headquarters claimed an average of 20 hours of overtime pay per 

period, one of the highest Administratively Uncontrollable Overtime of any CBP duty station. According to the Office of Special 

Counsel, ‘‘The attached report confirms that Situation Room employees in Washington, D.C., claimed to have worked 2 hours of 

AUO following their assigned shifts 89 percent of the time.’’ Eightynine percent of the time people working there claimed overtime. 

Again, these were not the Border Patrol agents on the front line 

who are doing the tough, difficult thing. 

I want to read something here from the Office of Special Counsel 

in her report. This is page three, a letter from the Office of Special 

Counsel to the President of the United States. ‘‘A whistleblower at 

the U.S. Citizenship and Immigration Service’s headquarter facility 

in Washington, D.C., alleged abuses of AUO in 2010 while the 

4 

whistleblower worked in the Office of Security and Integrity. The 

whistleblower alleged that everyone in OSI claimed 10 hours of 

AUO every week, even though no employee performed work that 

qualified. Not one. This whistleblower requested that her position 

be made ineligible for AUO and also advised supervisors that AUO 

was being routinely misused. The whistleblower was initially told 

she could not be decertified from AUO because it would draw unwanted attention to the office. While the whistleblower was eventually decertified, the AUO abuse by others has not stopped. DHS is 

required to submit a report in response to these allegations by November 13th.’’ 

I don’t know who this whistleblower is, but she is the one that 

should probably should be running that Department and that agency and that group. God bless her for stepping up and drawing out 

and highlighting a problem. That is exactly the kind of person that 

should be running that. Again, we are talking about the Commissioner’s Situation Room, which I am going to take is a fairly important position and an important place. 

Now, last week I introduced some bipartisan legislation, H.R. 

3463, to address the abuse raised by the Office of Special Counsel. 

The bill will create a consistent, reliable pay system, enhance border security, and is anticipated to save the taxpayers more than $1 

billion over 10 years according to the initial estimate. The new pay 

scale, along with a long-term solution, will iron out the kinks of the 

system through old-fashioned planning and time management. 

These changes will both reduce the opportunities to abuse the system and provide compensation for unanticipated emergencies, such 

as actually capturing people who are illegally coming across our 

borders. I believe it is a logical solution. And I look forward to 

working with my colleagues, including the chairman of the Federal 

Workforce Subcommittee and original cosponsor, Blake Farenthold, 

to advance the bill. Again, we have done it in a bipartisan way. 

When we introduced it we had three Republicans and three Democrats. 

I want to thank the six whistleblowers for disclosing this gross 

waste to the Office of Special Counsel. I appreciate Mr. Florence for 

his willingness to share his story with the committee. Mr. Florence 

has faced a number of challenges facing his disclosure. And I will 

take the opportunity to remind Homeland Security that this committee in a very bipartisan way will not tolerate any sort of retaliation or retribution against Mr. Florence or any other whistleblower 

who is simply trying to make this government more effective and 

more responsible to the American people. 

And finally, and my conclusion here, I need to say we continue 

to be deeply disappointed for those of you working at Homeland Security who have failed to offer this committee your testimony prior 

to your being here today. I am sure you are both very nice people. 

We verbally called and said that we were going to have this hearing. We sent letters to your supervisors saying that we were going 

to have this hearing here today. We asked that that testimony be 

provided by 10 a.m. yesterday. We never received your testimony 

prior to your being here today. 

Now, I know you work through a process with the Office of Management and Budget. They know the drill. They also know there 

5 

is no excuse—no excuse—for not providing testimony prior to coming before Congress. It allows us on both sides of the aisle to review that testimony and be properly prepared so we have a worthwhile hearing. This is a consistent drumbeat and pattern from 

Homeland Security, to jerk around the United States Congress. 

Please carry back the message with your legislative liaison this is 

not tolerable, and yet it continues and it persists. 

We will now recognize, if there is another member, we will recognize the gentlewoman for a very generous 5 minutes. 

Ms. LUJAN GRISHAM. Mr. Chairman, thank you very much. I 

want to thank the panelists for being here. Of course, this is a committee whose job it is to improve the effectiveness of government 

and be clear about accountability in all facets. 

I am reading the opening statement of Representative John 

Tierney, who is the ranking member on the subcommittee. 

Thank you, Chairman Chaffetz, for holding this hearing to discuss concerns raised by a recent Office of Special Counsel report regarding the misuse of overtime payments, called Administratively 

Uncontrollable Overtime, by employees at the Department of 

Homeland Security. 

Regulation restricts the use of this type of overtime to a very limited set of circumstances, such as when a Border Patrol agent is 

investigating criminal activity. According to the report, however, 

over the last year seven whistleblowers have alleged routine misuse of AUO in separate DHS offices amounting to nearly $9 million 

per year. Now, I understand that two of these cases have now been 

substantiated by an agency investigation after referral from the 

Special Counsel, one other case was resolved through mediation, 

and the remaining four cases are pending agency investigation. 

In one of the substantiated cases the Department confirmed that 

numerous employees and managers in a Customs and Border Protection, a CBP headquarters unit called the Commissioner’s Situation Room, regularly misused AUO by claiming 2 hours of AUO following their assigned shift nearly every day, and in the absence of 

a compelling law enforcement need. The Department also confirmed that the director and assistant director authorized and embedded this improper practice. 

Mr. Chairman, I could yield the rest of the opening statement 

time to the ranking member—all right, I will proceed. 

The whistleblower told investigators that instead of working, 

these employees routinely spent their AUO hours relaxing, surfing 

the Internet, watching television shows, or taking care of personal 

matters. Other whistleblowers, like Mr. John Florence, who will be 

testifying today via video conference, have alleged that AUO is routinely being used to improperly complete administrative tasks or to 

cover shift changes. It has also been alleged that some employers 

were not even present at their duty station during the claimed 

AUO period. I welcome Mr. Florence’s testimony on this topic and 

appreciate his willingness to share his story with us. 

Special Counsel Lerner, who is here with us today, has expressed 

serious concerns that these cases and a prior disclosure in 2007 reveal longstanding abuse of overtime payments by the Department 

and strongly indicate that the Department of Homeland Security 

has a profound and entrenched problem. In her report, Special 

6 

Counsel Lerner also questions the ability and willingness of DHS 

and CBP to address the AUO problem. And after revelations of routine abuses in 2008, CBP promised to issue and implement an 

agency-wide directive on AUO, and 5 years later such a directive 

has not yet been issued. 

These disclosures and the Department’s slow progress in addressing the issue appear to point to a larger and more fundamental problem: that the misuse of this administrative overtime 

has become ingrained. The Special Counsel has noted that collecting AUO has become a culturally acceptable practice, and the 

National Border Patrol Council has stated that AUO long been 

promised, advertised, and used by every single agent who is a nonsupervisor. 

While misuse of the administrative overtime cannot be tolerated, 

I fully appreciate the importance of AUO for frontline agents and 

officers who are protecting our borders, and I want to make sure 

that this will be available for those DHS employees who really 

need it to carry out the agency’s mission. I hope that DHS, CBP, 

and the National Border Patrol Council will be able to provide this 

subcommittee with insight into how AUO is being used, any challenges the Department and its components face under the current 

system, and how the problem is being addressed. I also look forward to hearing our witnesses’ thoughts on whether AUO, which 

was created 40 years ago, can be fixed or whether it should be replaced by an alternative overtime pay system. 

Before I conclude my statement, I would like to ask my colleagues to not let their outrage over these whistleblower disclosures taint our view of Federal workers, the vast majority of whom 

are hard-working and dedicated civil servants who devote their 

lives to honorably serving and protecting the American people. 

Thank you, Mr. Chairman. And with that, I would yield the remainder of the time to the ranking member. 

Mr. TIERNEY. I yield back. 

Ms. LUJAN GRISHAM. And Mr. Chairman. 

Mr. CHAFFETZ. Well, thank you. 

Mr. CHAFFETZ. And particularly that last comment, which I 

wholeheartedly agree on. I think this is an abuse that is being ferreted out. But you are right, the overwhelming majority of people 

at Homeland Security and other agencies, they do it right and they 

work hard and they are patriotic and they don’t abuse the system. 

But there is widespread abuse here and we do need to ferret it out. 

So we are now going to recognize our panel. Mr. John Florence, 

who is joining us via video, serves as the Branch Chief at the Field 

Operations Academy for the U.S. Customs and Border Protection; 

Ms. Catherine Emerson is the Chief Human Capital Officer for the 

Department of Homeland Security; Mr. Ronald Vitiello is the Deputy Chief of the Office of Border Patrol within the Customs and 

Border Protection; Mr. Brandon Judd is the president of the National Border Patrol Council; and Ms. Lerner is the Special Counsel, Office of Special Counsel, and issued one of the reports to the 

President that we are here talking about today. 

We appreciate you, Ms. Lerner, being here as well. 

7 

Pursuant to committee rules, all witnesses will be sworn in before they testify. If you would please rise and raise your right 

hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Let the record reflect that the witnesses answered in the affirmative. 

And you may be seated. I am going to go ahead and assume that 

Mr. Florence did the same, even though he is there remotely. 

In order to allow time for discussion, we would appreciate if you 

would limit your testimony to 5 minutes. We are going to start actually with Mr. Florence. And like I said, we will do his opening 

statement. We will then go to Ms. Lerner, we’ll go down the line. 

And then we will question Mr. Florence. At the conclusion of our 

questioning him, then we will focus our questions to the remaining 

panel. 

Let’s try with the technology here to start with Mr. Florence. You 

are now recognized for 5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF JOHN FLORENCE 

[The following testimony was delivered via teleconference.] 

Mr. FLORENCE. Chairman Chaffetz, Ranking Member Tierney, 

and members of the subcommittee, my name is John Florence. It 

is my honor to testify in front of this panel on the subject of Authorized Uncontrollable Overtime violations within Customs and 

Border Protection. I sincerely apologize I could not be there in person. However, because of my serious medical challenges, my physicians have advised me not to do so. 

While on my assignment as Acting Assistant Director at the 

Field Operations Academy, on August 20, 2012, I received a detailed email message, which was also sent to the Field Operations 

Academy Director, Kevin Strong, Deputy Director Michael Brown, 

and Assistant Director Select Kevin Levan. This email identified 

serious concerns about AUO violations by employees and senior 

level managers at the FOA. The allegations were AUO was being 

scheduled on a regular and reoccurring basis for work that was not 

uncontrollable and was primarily administrative and managerial in 

nature. 

AUO employee shifts were being manipulated from normal academy business hours of 0730–1630 to 7 o’clock to 3 o’clock and then 

claiming AUO nearly every day from 3 o’clock to 5 o’clock. Lunch 

breaks were not being taken, to maximize AUO earnings during 

normal business hours. AUO was being claimed for work that 

should have been completed during normal business hours. And 

also of note but not identified in this email was AUO earners would 

receive approximately 20 hours of AUO per pay period or 25 percent of their base annual salaries. 

I scheduled several meetings on this matter with Deputy Director Brown and sent several comprehensive email messages voicing 

my concerns. Unfortunately, it became apparent that the AUO violations were not receiving due diligence and would continue to be 

8 

authorized by former Director Strong because he was also significantly benefiting from the AUO pay. This was even after former 

Director Strong and Director Brown received comprehensive AUO 

guidance on August 14, 2012, from other senior level Border Patrol 

managers. 

On September 4, 2012, I filed a Joint Intake Center investigation 

for a comprehensive review by Customs and Border Protection 

headquarters investigative components because of my concerns 

about mismanagement by senior level managers locally. Additionally, on September 11, 2012, I sent Deputy Director Brown an 

email message regarding my concerns about continuing authorization of AUO pay when it was clearly in violation of the policy, and 

based on these facts I no longer felt comfortable approving it. 

After I advised Deputy Director Brown that I filed a Joint Intake 

Center investigation on the AUO violations, former Director Strong 

ordered that all AUO concerns and approvals would go through 

him directly until Assistant Director Kevin Levan reported for 

duty. Assistant Director Levan was also an AUO earner. 

After almost 1 year had passed and I had not received a response 

or any indication that anything was being done to stop the AUO 

violations that were being observed at the Field Operations Academy and was prevalent throughout the rest of the Office of Training and Development and headquarters assignments, with the exception of the headquarters sending out an AUO training mandate 

on August 27, 2012, for all supervisors and managers to complete. 

However, this effort was ineffective because after this requirement 

was satisfied, the AUO violations continued. This reminded me of 

the action that was taken by the agency in 2007 on the Lynden, 

Washington, Office of Special Counsel case DI–08–0663 on AUO 

violations. 

After applying due diligence to stop the AUO violations within 

my chain of command and through the agency’s investigative 

branches with no success, it became apparent that I needed to file 

outside the agency as a whistleblower with the Office of Special 

Counsel. 

Also of concern was the disparaging pay practices which was 

causing low morale because many employees were working in the 

same work areas and in identical positions, however the Border Patrol 1896 employees were receiving up to an additional 25 percent 

of their base pay, which to my understanding was also being utilized to calculate their retirement annuities. Many of the 1895 employees and managers that were not receiving any additional pay 

had serious concerns about equal pay for equal work. This was because they were also working 10 to 12 hour days and were being 

required to be on call but were not receiving any additional compensation. 

I would like to close by saying that this experience has been the 

hardest decision in my 27-year Federal law enforcement career concerning reporting the AUO violations and including the former director and Deputy Director Brown in my testimony because they 

have been friends, colleagues, and mentors of mine for the last 15 

years. 

It goes without saying to do the right thing sometimes comes 

with a tremendous price is an understatement. Reporting the AUO 

9 

violations has taken its toll on my career, personal life, and health. 

Because of my mental anguish, stress, and retaliatory treatment I 

have received since reporting the AUO violations to my superiors, 

and due to the medications I was taking after a serious back surgery on February 10, 2013, I almost lost my life. 

I had a serious—excuse me—I had a serious medical incident 

which caused me to be in an intensive care unit for 4 days. I’m 

sorry for losing my bearings. My chances for survival were very low 

and I was in a fight for my life. Today I stand before you with my 

life irrevocably damaged, being permanently disabled and unsure 

of my future with the agency. 

Committee members, I have asked myself this question a number 

of times: Would I do it again? Would I report these blatant AUO 

violations if I knew what I know now? The answer is yes, because 

it was my duty to do so, it was the right thing to do, it was a violation of one of CBP’s core values, which is integrity, and it was a 

serious fraud, waste and abuse of taxpayer’s dollars. Thank you 

very much. 

Mr. CHAFFETZ. Mr. Florence, we thank you. We thank you very 

much. I appreciate that. It is very heartfelt and we appreciate it. 

It is very helpful. 

[Prepared statement of Mr. Florence follows:] 

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Mr. CHAFFETZ. Let us go through the testimony of the other four 

and then we will come back to you for questions. 

I now recognize Ms. Lerner for 5 minutes. 

STATEMENT OF CAROLYN N. LERNER 

Ms. LERNER. Chairman Chaffetz, Ranking Member Tierney and 

members of the committee, thank you for inviting me to testify 

today about overtime abuse disclosed by whistleblowers at the Department of Homeland Security. I would like to introduce the two 

attorneys from our agency who had primary responsibility for the 

report, Lynn Alexander and Johanna Oliver, and they did a terrific 

job. They are attorneys in our Disclosure Unit. 

My statement to today will focus on three areas: the role of the 

Office of Special Counsel in whistleblower matters generally; the 

procedures followed in this matter; and finally, our findings and 

areas of concern. 

I want to start by briefly explaining our role in disclosure matters. As an independent agency within the executive branch, the 

OSE provides a safe channel for Federal employees to disclose government wrongdoing. We evaluate disclosures using a ‘‘substantial 

likelihood’’ standard. If the standard is met, I send the matter to 

the head of the agency, who in turn is required to conduct an investigation and submit a written report of investigative findings to my 

office. 

After reviewing the agency’s report, I make two determinations: 

first, whether the report contains the information required by statute; and, second, whether the findings of the agency appear reasonable. In addition, the whistleblower may review and comment on 

the agency report. My office then transmits the report with findings and recommendations to the President and congressional committees with oversight responsibility. In this case, my findings and 

recommendations are attached to my submitted testimony. 

It was within this statutory framework that we received disclosures from seven whistleblowers from six separate offices of the Department of Homeland Security over the past 2 years. In September 2012, Jose Ducos-Bello contacted OSE about overtime in 

the U.S. Customs and Border Protection Commissioners’ Situation 

Room in Washington, D.C. Mr. Ducos-Bello alleged that employees 

there regularly abused Administratively Uncontrollable Overtime, 

AUO. The director and assistant director were authorizing this improper use and it was the norm for employees to extend their shifts 

by two hours every day, increasing pay 25 percent. 

By regulation, this type of overtime may only be used when an 

employee’s hours cannot be scheduled in advance due to a substantial amount of irregular and unpredictable work or a compelling 

law enforcement reason. For example, AUO is appropriate when an 

employee is apprehending a suspected criminal and it would constitute negligence for the employee to leave the job unfinished. 

However, the employees in Mr. Ducos-Bello’s disclosure were not 

using AUO as the result of any unpredictable or compelling law enforcement need. According to Mr. Ducos-Bello, many employees 

spent the extra time relaxing or surfing the Internet. 

The abuse was not an isolated occurrence. Over the past year we 

received disclosures from six more whistleblowers at five other 

15 

DHS offices. These allegations are outlined in more detail in my 

October 31, 2013, letter to the President. 

The estimated cost of abuse at these six facilities alone is almost 

$9 million each year. The whistleblowers estimate that the cost nationwide is likely to reach tens of millions of dollars annually. This 

estimate excludes overtime claims by agents in the field, those 

whose need for AUO would seem to be most justified. 

In April 2013 we received DHS’ report on Mr. Ducos-Bello’s allegations and the report substantiated his claims. As to the other 

five investigations, DHS’ reports to my agency are due within the 

next several weeks and months. We will keep the subcommittee informed. 

I credit the Customs and Border Patrol for conducting a thorough 

investigation into the whistleblowers’ allegations. However, while 

CBP has pledged to take corrective action, I remain concerned 

about whether the agency is ultimately willing or able to do so. 

In 2007 identical concerns about overtime abuse were raised. 

DHS confirmed the allegations and the agency made similar promises about correcting them. At that time CBP outlined a corrective 

plan, much of which is mirrored in its response to the current 

round of allegations. In addition, in its current report DHS describes obstacles to correcting these problems, including collective 

bargaining agreements and the need for updated regulations from 

the Office of Personnel Management. 

While I am very hopeful that the Department will overcome 

these obstacles and take definitive action to correct this overtime 

abuse, I am also realistic. Based both on the magnitude of the 

problem and the prior history of ineffective measures taken, it will 

require a serious commitment the to make necessary change. I am 

pleased that Congress and this committee have shown an interest 

in helping the Department find ways to solve this problem. 

In conclusion, I want to applaud Mr. Florence, Mr. Ducos-Bello, 

and the other courageous whistleblowers who spoke out about this 

important issue, often against their own financial self-interest. Had 

they not stepped forward, these problems would not have come to 

light and the taxpayers would continue to foot the bill for these improper payments. 

Thank you very much. I will be pleased to answer any questions 

that the committee may have. 

Mr. CHAFFETZ. Thank you. 

[Prepared statement of Ms. Lerner follows:] 

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Mr. CHAFFETZ. Ms. Emerson, you are now recognized. 

STATEMENT OF CATHERINE V. EMERSON 

Ms. EMERSON. Chairman Chaffetz, Ranking Member Tierney, 

distinguished members of the subcommittee, thank you for the opportunity to appear before you today to address the Department’s 

use of Administratively Uncontrollable Overtime, AUO. 

I serve as the first career Chief Human Capital Officer of the Department of Homeland Security and am responsible for the Department’s Human Capital Program, which includes workforce planning, policies, and technology in support of the DHS mission. 

Today I am here to discuss AUO, a matter that has been of concern to the Department for some time. Properly paying our border 

and Homeland Security personnel and properly managing that pay 

system are essential to the Department’s mission. AUO was established by Congress in 1966 and is a payment mechanism that allows the compensation of certain employees for irregular, unscheduled, but necessary overtime. AUO is determined as a percentage, 

not less than 10 percent nor more than 25 percent of an employee’s 

rate of basic pay fixed by law or administrative action for the position held by the employee. 

Mr. Chairman, we appreciate your taking the initiative to introduce new legislation to attempt to address the challenges posed by 

AUO and welcome the opportunity to work with you on finding solutions at an affordable cost. As you know, the Department has 

sought legislative changes for several years that would enable CBP 

to reform and rationalize its compensation structure. The Department has been working to institute pay reform, including AUO, 

since 2009. 

The President’s fiscal year 2011 budget request submitted in 

April of 2010 would have fully funded that increase. That plan also 

required statutory changes in a comprehensive pay reform legislative proposal submitted as part of the President’s fiscal year 2012 

budget request and formally submitted to Congress in September 

2011. 

Unfortunately, Congress did not take action on the proposal. The 

Department again restated the proposal in the President’s fiscal 

year 2013 budget request to provide fair payment for all of CBP’s 

overtime-eligible law enforcement officers and agents. 

The Department takes its responsibility to be good stewards of 

taxpayer dollars very seriously. Any misuse of government funds 

will not be tolerated. At the request of the Special Counsel, on October 31, 2013, Acting Secretary Beers ordered an expeditious and 

comprehensive Department-wide review of our compliance with 

rules governing the use of AUO. The Office of General Counsel is 

conducting the compliance review and examining both current 

practices relating to designating positions as eligible for AUO pay 

and the compliance with all applicable rules and laws in recording 

and paying for AUO. The Office of the Chief Human Capital Officer, CBP, and all other relevant components of DHS are working 

closely with OGC on the compliance review and will be integral in 

implementing any decisions that result from OGC’s findings and 

recommendations to the Secretary. 

24 

In conclusion, the Department and CBP are committed to finding 

solutions to modernize and streamline compensation structures, to 

align them with evolving missions, and to reflect the expanded responsibilities of our workforce, and we look forward to working 

with Congress to achieve these goals. 

Thank you for allowing me the opportunity to testify before you 

today, and I look forward to answering any of your questions. 

[Prepared statement of Ms. Emerson follows:] 

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29 

Mr. CHAFFETZ. Mr. Vitiello, you are now recognized for 5 minutes. 

STATEMENT OF RONALD VITIELLO 

Mr. VITIELLO. Chairman Chaffetz, Ranking Member Tierney, 

members of the subcommittee, thank you for the opportunity to appear before you today to address the recent allegations against U.S. 

Customs and Border Protection and specifically the U.S. Border Patrol. 

When CBP was established in 2003 in the wake of the terrorist 

attacks on September 11, 2001, it was tasked with merging personnel, equipment, policies, procedures, and systems from four 

agencies within three departments, Treasury, Agriculture, and Justice. Today, the uniformed men and women of CBP make up the 

largest law enforcement organization in the Nation and take a solemn vow to secure the homeland from terrorists and other threats. 

While much of CBP’s critical efforts are performed at official 

ports of entry and at the land and maritime borders in between, 

advancements in technology are increasingly enabling aspects of 

frontline law enforcement activities. 

The responsibilities of a Border Patrol agent are arguably the 

most unpredictable of all CBP’s law enforcement positions. While 

the function of the Border Patrol has changed and expanded dramatically since its inception 89 years ago, its primary mission remains unchanged. The Border Patrol protects our Nation by reducing the likelihood that dangerous people and capabilities enter the 

United States between the ports of entry. 

This effort is accomplished by maintaining surveillance, following 

up leads, responding to electronic sensor alarms and aircraft 

sightings and interpreting and following tracks. We also maintain 

traffic checkpoints along the highways leading from border areas, 

conduct city patrols and transportation checks, and support the 

antismuggling investigations. Agents regularly work in isolated 

and harsh terrain. Agents patrol the border on foot, in vehicles, 

boats, and in some areas patrol on horses, all-terrain vehicles, 

bikes, and snowmobiles. 

The Border Patrol’s frontline border security efforts are increasingly augmented by advancements in technology, including enhanced sensor, video, and radar technology. This technology, affixed to assets such as unmanned aircraft systems, increases the 

Border Patrol’s capabilities in the land, air, and maritime domains 

between the ports of entry. The vast amounts of information gathered from this technology requires review and analysis and rapid 

interpretation into actionable information for use by agents on the 

ground. 

The work of the Border Patrol agent is by its very nature dynamic and unpredictable. In the course of any given day, agents 

are continually presented with new conditions and new situations. 

This type of work requires agents both patrolling on the ground 

and processing intelligence at remote locations to follow leads and 

go where the activity takes them, even if it takes them beyond 

their standard duty hours. 

When it comes to paying Border Patrol agents for work beyond 

regularly scheduled hours, the Department and CBP are committed 

30 

to working with Congress to modernize and streamline our compensation structure to reflect the expanded responsibilities of the 

workforce. 

Administratively Uncontrollable Overtime, a system established 

almost 50 years ago, no longer meets the needs of a 21st century 

law enforcement environment where increasing amounts of surveillance, intelligence, and Border Patrol activities are often conducted 

in remote areas. The work of securing the border is no longer limited to physical presence on the border and our compensation system should reflect the current operational environment. 

The U.S. Border Patrol takes its responsibility to be a good steward of taxpayer dollars. Any misuse of government funds is not tolerated. The U.S. Border Patrol will cooperate fully with all internal 

DHS and external reviews of our compensation and procedures. 

Prior to the issuance of the Special Counsel’s report, CBP initiated an internal working group on Administratively Uncontrollable 

Overtime to review current practices and update internal policies, 

where applicable, to reflect the roles and responsibilities of the positions earning AUO. 

The Border Patrol also regularly issues official guidance on all 

AUO to chief patrol agents in the field, most recently in December 

of last year. This guidance contains the regulations and policies 

governing the administration of AUO, criteria that agents must 

meet and be authorized to be deemed eligible for payments for legitimately claiming AUO, and the responsibilities required of employees, supervisors, and managers. 

While the Department and CBP have taken steps to educate supervisors and employees about the proper application of AUO, we 

continue working to educate and train our staff on the proper use 

and align pay structures with current agency functions. 

The Border Patrol’s mission requires compensation structures, 

maintain flexibility and ensure continuous coverage. We would welcome a legislative solution that meets the agency’s critical mission, 

promotes efficiency, and has the least impact to our Border Patrol 

agent personnel. 

Thank you for allowing me the opportunity to testify today, and 

I look forward to your questions. 

Mr. CHAFFETZ. Thank you. 

Mr. Judd, you are now recognized for 5 minutes. 

STATEMENT OF BRANDON JUDD 

Mr. JUDD. Chairman Chaffetz and Ranking Member Tierney, on 

behalf of the 16,500 Border Patrol agents who are members of the 

National Border Patrol Council, I would like to thank you for having this hearing to explore reforming the Administratively Uncontrollable Overtime system. 

I am the president of the Border Patrol Council and I have been 

a Border Patrol agent for 16 years. I am currently assigned in 

Maine, but I have worked the majority of my career in some of the 

busiest Border Patrol sectors, including El Centro, California, and 

Tucson, Arizona. 

The Special Counsel’s latest report simply confirms what line 

agents have been saying for years: AUO is outdated and a broken 

system that needs wholesale reform. 

31 

When AUO was first instituted in the 1970s there were fewer 

than 4,000 Border Patrol agents. There was no border fence, remote sensing technology, or even an interoperable communications 

system. Most agents worked alone or in small groups with little or 

no supervision. 

AUO made sense 40 years ago because if an agent was tracking 

smugglers or illegal aliens, after the shift was over the agent could 

simply keep working. Those extra hours worked were covered 

under AUO. When I entered on duty with the United States Border 

Patrol in 1997, there were still mom-and-pop smuggling organizations who peddled their product across our borders. 

Fast forward to where we are today in 2013. Gone are the momand-pop smuggling organizations, replaced by multinational cartels 

that smuggle both drugs and illegal aliens into our country. These 

cartels are well organized, well funded, heavily armed, extremely 

violent, and have an extensive intelligence and surveillance network. With each tunnel coming into the United States that is discovered by law enforcement, the American public is made aware of 

just how well funded and organized these cartels are. 

In response to cartel threats and the increase in both human and 

drug smuggling, Congress set a Border Patrol staffing floor at approximately 21,300 agents, seven times its initial size. This level 

of staffing not only ensured more agents in the field, but also ensured that Border Patrol would be a 24-hour-a-day operation on all 

of our borders. 

In order to maximize manpower in the field, the Border Patrol 

utilizes a three-shift rotation with each shift lasting 8 hours. The 

challenge is how to handle shift changes because it is common for 

an agent’s patrol area to be over an hour away from the Border Patrol station. Therefore, an agent’s shift may be done, but the oncoming relief is still an hour away. After a handover is made with 

an oncoming agent, the off-going agent still has to drive an hour 

back to the Border Patrol station to turn in all equipment. So while 

a shift may be 8 hours, the agent has to work an extra 2 hours per 

day to ensure border integrity. These hours are and have always 

been covered under AUO, which we know through the Office of 

Special Counsel is illegal. 

For the most part, when discussions on border security arise, the 

conversation tends to focus on the southwest border. In no way do 

I want to detract from the importance of securing the southwest 

border, but I would be remiss if I didn’t mention the ongoing threat 

of the nearly unguarded northern border to the safety of the American public. As far as I am aware, all recent threat assessments 

have pointed to the northern border as the most likely point of 

entry into our country for terrorists. 

I also need to remind the committee of our recent history. In the 

early to mid-1990s, San Diego and El Paso were ground zero for 

both illegal immigration and drug smuggling. In response, the Border Patrol threw all of its resources at those two areas without also 

strengthening other areas of the border. The thought process was 

that no one would attempt to cross through the inhospitable 

deserts of Arizona. 

We now have a similar thought process in that we don’t believe 

illegal smuggling, whether it be drugs or aliens, will ever move to 

32 

our northern border because it is cost prohibitive. Like Arizona, the 

northern border is ripe for the exploitation of not only alien and 

drug trafficking, but also for facilitating the illegal entrance of terrorists and those that would do this country harm. If we selectively 

limit manpower to current locations with high volumes of illegal 

crossings, all we really achieve is shifting the point of illegal entry 

to a different location. 

The real question is where do we go from here. Last week, Chairman, you introduced legislation, H.R. 3463. In addition, Senators 

Tester and McCain introduced a companion bill in the Senate. The 

legislation would reform Border Patrol agent pay for the first time 

in almost 40 years. 

On this point I want to be clear: Border Patrol agents completely 

support this legislation. The primary reason agents support this 

legislation is that it guarantees manpower we need in the field to 

accomplish our mission. 

I learned early in my career that manpower and agent safety are 

linked. It was true when I started 16 years ago. It is even more 

true today. With the domination and spread of sophisticated drug 

cartels on the border, having this legislation in place is the equivalent of hiring 5,000 new Border Patrol agents, which increases border security as well as agent safety. 

Finally, I would like to address the cost savings that would be 

achieved by the legislation. This legislation will save taxpayers 

over $1 billion over the next 10 years. Moving to this new system 

will be a pay cut from what Border Patrol agents have traditionally 

earned. However, we believe ensuring proper manpower stability 

and safety is worth a pay reduction. 

Chairman, I look forward to any and all questions that you 

might have. 

Mr. CHAFFETZ. Thank you. 

[Prepared statement of Brandon Judd follows:] 

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Mr. CHAFFETZ. We are going to now direct our questions to Mr. Florence. I 

would ask members here on the panel to direct their questions just 

to Mr. Florence. We will go through those questions. At the conclusion, then we will focus on the four here in Washington, D.C. I will 

now recognize myself for 5 minutes. 

And, Mr. Florence, I hope you can hear me. And I appreciate 

your testimony. Could you please tell me what you saw? What were 

these people doing day in and day out? You mentioned generally 

that they were surfing the Internet, doing those types of things, 

but what specifically did you see them doing? 

Mr. FLORENCE. Well, I didn’t see them doing specific things. I did 

not mention anything about them surfing the Internet. That was 

Mr. Ducos out of the Situation Room. 

The individuals that were under my supervision worked in the 

Marine Branch, and according to their 203s, which were their AUO 

forms, they were preparing for lessons for the next day, working on 

lesson plans, other things like that, that were primarily controllable and administrative in nature. 

Normally here at the academy the instructors will work anywhere from 4 to 6 hours a day and they will have at least 2 hours 

of a break to do the things that they were putting down that they 

were doing on their AUO. Sometimes they would even have 4 hours 

a day to prepare for their lessons the next day and to prepare for 

their classes and lesson plans, et cetera. So it didn’t make any 

sense to me as far as prudent management why these employees 

were filing the AUO they were when they had plenty of time during their shifts to accomplish their work. 

Mr. CHAFFETZ. I now yield to the gentlewoman from Wyoming, 

Mrs. Lummis. 

Mrs. LUMMIS. Thank you, Mr. Chairman. 

Mr. Florence, thank you for your testimony. I understand that 

you began your law enforcement career as a law enforcement specialist at F.E. Warren Air Force Base in Cheyenne, which is where 

I am from. So I am very pleased that you were willing to testify 

today. 

I want to focus on the kind of response that you received when 

you notified your colleagues about the allegations of overtime 

abuse. Mr. Florence, could you comment on that? 

Mr. FLORENCE. When I sent Deputy Director Brown my email, 

which I mentioned, which was on the 11th of September, he actually wanted to speak with me in person. He responded back by saying they were very serious allegations, et cetera, which I appreciate 

that and I can understand that. But he asked me to come into his 

office the next day. And then he sat me down and he said that my 

allegations were very serious, that I was questioning the director’s 

integrity, and did I think that he would jeopardize his career for 

AUO? And then he told me you can go ahead and file your Joint 

Intake Center report but I feel it is a real waste of government 

money and a waste of government time. 

Mrs. LUMMIS. Now, based on your experience working at CBP, 

what do you think contributes to this problem, an atmosphere or 

a culture where overtime is abused? Is it a lack of training or is 

it just a sort of a herd mentality to think that this is somehow fair? 

38 

Or the fact that, gee, we feel like we are underpaid and until Congress addresses that we will find a way to make sure that we are 

adequately paid, whether it is legal or not. What is it about this 

culture that makes this so hard to eradicate? 

Mr. FLORENCE. Well, I think some of the Border Patrol agents 

feel that it is an entitlement, it is part of their pay package. When 

I received the three employees that were Border Patrol agents 

under my chain of command, I quickly started to study what AUO 

was all about because I was unfamiliar with it. I don’t claim myself 

as a subject matter expert on AUO in any way, shape or form, but 

I know when someone should be working overtime and when they 

shouldn’t, and in a training environment obviously most of it, 99 

percent of it is controlled, so in any opinion it wasn’t necessary. 

So I think it is basically the mentality. It is an entitlement, it 

is an AUO-certified position, so therefore we can have AUO. That 

is what I was told by the director on numerous occasions. But in 

doing some research on my own on the Lynden, Washington, case, 

and then doing the mandatory training that was sent out and then 

doing my own research, I quickly found it was easy to understand 

that this was in violation of the policy. And I explained that to 

them numerous times to try to get this taken care of within my 

chain of command. 

Mrs. LUMMIS. Mr. Florence, one more question. We had testimony from Mr. Judd that it can be a 2-hour commute, 1 hour each 

way, for a shift that is far away from the area where you must turn 

in your weapons and stuff before the end of a shift. Is that the typical situation where you would allege that overtime is abused or is 

that an appropriate use of overtime? 

Mr. FLORENCE. Well, at the academy, as I said before, everything 

is controlled. They don’t have to commute anywhere near that 

time. They are normally in their work area so they are able to report on time and there is normally no commutes. 

Now, in the marine environment where these three employees 

worked, I understood that there could be situations where they got 

stuck out at sea because of weather or they had a mechanical issue 

with their vessels, et cetera, and I accepted that. I told them in 

those kind of situations, AUO should be authorized. It is uncontrollable. But in most situations in the academy environment everything is controllable and scheduled in advance. 

Mrs. LUMMIS. Thank you for your testimony, Mr. Florence. 

Mr. Chairman, I yield back. 

Mr. CHAFFETZ. Thank you. 

We’ll now recognize the ranking member, Mr. Tierney of Massachusetts, for 5 minutes. 

Mr. TIERNEY. Thank you. 

Thank you, Mr. Florence, for making yourself available to testify 

here today, and accept at least my regrets for what you have gone 

through physically and emotionally as a result of trying to do your 

job the proper way and know that we respect it and appreciate it 

and feel very badly for the situation that you are in today 

healthwise. 

I want to make this as short as I can, my questions. I was curious to know what kind of retaliation and confronted your subordinate, and you heard about that and you testified about that. So let 

39 

me just quickly ask you, who specifically did you directly report to 

when you first made the determination that this was being done 

improperly? 

Mr. FLORENCE. I directly reported to the deputy director, Michael 

Brown, which in turn he reported to the director, Kevin Strong, 

who was also an AUO earner. Michael Brown was not an AUO 

earner. 

Mr. TIERNEY. And did the deputy director have a direct response 

to you, directing you to either change the situation that you found 

or advising you to just leave it alone? 

Mr. FLORENCE. He advised me that it was an AUO-certified position, that I didn’t know what I was talking about, I didn’t know 

the AUO system, and that, like I said before, the director was not 

going to jeopardize his career over AUO and it is a very serious 

concern of his that I am even bringing this up. 

Mr. TIERNEY. Did you have any indication of how it was he 

thought he was going to be jeopardizing his career by dealing with 

this issue? 

Mr. FLORENCE. I am not really sure about that. I think what he 

was alluding to is that the director wouldn’t collect the AUO unless 

it was authorized and it was within policy. 

Mr. TIERNEY. Okay. All right. 

I have no further questions. If my colleague has any questions 

I’ll yield. 

Mrs. KELLY. No, I have no questions. 

Mr. TIERNEY. We yield back, Mr. Chairman. 

Thank you, Mr. Florence. 

Mr. CHAFFETZ. Mr. Florence, we thank you for your time, your 

commitment, your dedication to your country, your service. It is my 

understanding there are no other questions from this panel of 

members. We thank you again for your bravery, for your willingness to step forward and do what is right, and I hope you sleep better because of it. And I am heartened that people like you are in 

those positions, and I appreciate the responsible nature. I appreciate you preparing for this testimony. Testifying before Congress 

is not an easy thing. And God bless you. I wish you nothing but 

the best. We thank you for your time. You are welcome to listen. 

This committee will now direct its questions to the four panel 

members that are here in Washington, D.C., and I will start by recognizing myself for 5 minutes. 

Ms. Lerner, on January 2 of this year you sent a letter to Secretary Napolitano. On page 3 you said, ‘‘I have concluded that 

there is a substantial likelihood that the information provided by 

the whistleblower to OSC discloses a violation of law, rule, or regulation, gross mismanagement, an abuse of authority, and gross 

waste of funds.’’ 

You stand by that statement, correct? 

Ms. LERNER. I do. 

Mr. CHAFFETZ. Your microphone, please. 

Ms. LERNER. I do. 

Mr. CHAFFETZ. Ms. Emerson, is she right or is she wrong? 

Ms. EMERSON. We are currently in the process—— 

40 

Mr. CHAFFETZ. Wait. Currently in the process? This is a letter 

that was sent on January 2nd. It is now November 20. Is she right 

or wrong? 

Ms. EMERSON. That is currently under review by the Office of 

General Counsel. 

Mr. CHAFFETZ. How long does it take you to review this? 

Ms. EMERSON. From what I understand, it is going to take several months. 

Mr. CHAFFETZ. Well, it has been—we are in month 11. How 

many more months do you think it is going to take? 

Ms. EMERSON. I will have to get back to you with that. But from 

my understanding it will take several months. I know—— 

Mr. CHAFFETZ. What is your role? 

Ms. EMERSON. I am the Chief Human Capital Officer. 

Mr. CHAFFETZ. The Chief Human Capital. You are in charge. 

Who do you report to? 

Ms. EMERSON. I report to the Under Secretary for Management. 

Mr. CHAFFETZ. What is his name or her name? 

Ms. EMERSON. Presently there is an acting. That would be Chris 

Cummiskey. 

Mr. CHAFFETZ. How long have you been in this role? 

Ms. EMERSON. I have been the DHS CHCO since August of 2011. 

Mr. CHAFFETZ. When did you first become aware of this problem? 

Ms. EMERSON. My office first became aware of it somewhere in 

2009, the former CHCO. 

Mr. CHAFFETZ. So you knew it was a problem in 2009. 

Ms. EMERSON. The office worked on—— 

Mr. CHAFFETZ. When did you personally, Ms. Emerson, when did 

you become aware of it? 

Ms. EMERSON. I personally became aware of it, it came to my attention in late April and—— 

Mr. CHAFFETZ. Of this year. 

Ms. EMERSON. Yes. 

Mr. CHAFFETZ. Do you think anybody has been dishonest? 

Ms. EMERSON. That is under review right now, but OGC—— 

Mr. CHAFFETZ. What is the question here? We have the Office of 

Special Counsel who has reviewed this and come up with a definitive report on this. What do you need to do that Ms. Lerner hasn’t 

done? 

Ms. EMERSON. What I understand is that Ms. Lerner had some 

very serious concerns regarding the administration of AUO at 

DHS. That report or letter was sent to the Office of General Counsel, and they are working with the component. They are also working with my office, the Office of the CHCO, in reaching out to the 

component experts to look into the matter. 

Mr. CHAFFETZ. Has anybody been fired? 

Ms. EMERSON. Regarding this? I am not knowledgeable on that 

at this point. 

Mr. CHAFFETZ. You are the chief human capital person. You can’t 

point to a single person who has been fired, let go. What are you 

going to do to claw back the dollars? 

Ms. EMERSON. That is under review with the Office of General 

Counsel. 

41 

Mr. CHAFFETZ. What are you here to talk about then? Everything 

is under review. Who is reviewing it? Who should have been here 

to represent the Department? Are you the chief or are you the—— 

Ms. EMERSON. I am the Chief Human Capital Officer and I have 

oversight throughout DHS for human capital programs. I am involved presently with the review being done by OGC to look at 

AUO administration—— 

Mr. CHAFFETZ. What about the specific allegations? 

Ms. EMERSON. Those are all being reviewed currently. 

Mr. CHAFFETZ. When are you going to come to a conclusion? 

Ms. EMERSON. In the next several months. 

Mr. CHAFFETZ. No, no, no, give me a date. What is the date? 

Ms. EMERSON. I will have to get back to you on the date. I have 

been informed that it will be—— 

Mr. CHAFFETZ. Do you think anything that has been done has 

been dishonest? 

Ms. EMERSON. As I said, I have to look into the facts. I know that 

they are being reviewed right now. 

Mr. CHAFFETZ. This started in 2008. It was brought up again in 

2009. A letter went to the Secretary on January 2nd of this year. 

And you are still reviewing it? 

Ms. EMERSON. As I said, it is under review by the Office of General Counsel, and it is a case-by-case, component-by-component review of AUO usage throughout—— 

Mr. CHAFFETZ. You can’t point to any case where we are clawing 

these dollars back? 

Ms. EMERSON. I know that there has been work in that area. 

Mr. CHAFFETZ. You said in your testimony, the testimony that 

you never gave us in advance—we have trouble getting it right 

now. You said, ‘‘At the request of special counsel, on October 31, 

Acting Secretary Beers ordered an expeditious and comprehensive 

department-wide review of our compliance and rules for the governing use of AUO.’’ October 31st? You started a few days ago? She 

sent a letter to the Secretary on January 22nd, saying there is a 

substantial likelihood that the information provided by the whistleblower discloses a violation of law, rule, regulation, gross mismanagement, abuse of authority, and a gross waste of funds, and 

you didn’t start a review until October 31st? 

Ms. EMERSON. That review is the component-by-component department-wide review. That information was handled by OGC and 

forwarded to the Customs and Border Patrol, and they were working on that—those specific instances were specific to CBP. 

Mr. CHAFFETZ. I can tell exactly why this continues to be a problem. There are tens of millions of dollars, taxpayer dollars, that are 

being abused. They are being stolen from the American people. And 

you are doing nothing about it. You have known about this since 

2008. It was highlighted in January. And yet, nothing has been 

done. Don’t tell me that there are months that we have got to continue to review this. There are people that need to be fired. There 

are dollars that need to be clawed back. There are people that may 

be headed to a violation of law that should be going to jail. So I 

hope we get the right person from Homeland Security to come here. 

This committee will hold another hearing with the right person, 

who is actually going to testify to Congress. But don’t tell me that 

42 

you need more dollars, more resources. You heard Nancy Pelosi 

saying, we are at bone bare—you know, the cupboard is bare. 

There is nothing to give. There are too many thousands of people 

who are working hard, doing the right thing, and guess what? They 

are getting screwed by the Department of Homeland Security, because those people are stealing from the American people. 

You take that back to Homeland Security and let them know, 

they are going to deal with Congress. They are going to be candid 

about this. They are going to hold people responsible, and they are 

going to be candid in making sure that they are responsible with 

the American taxpayer dollars. Your answers, quite frankly—you 

are a very nice person—but your answers, quite frankly, they are 

not acceptable. For you to be the chief human capital person and 

you have no answers to any questions, saying everything is under 

review because, well, it is not in my department; it is with the General Counsel. It is inexcusable. 

I now recognize the gentleman from Massachusetts, Mr. Tierney 

for 5 minutes. 

Mr. TIERNEY. Thank you. 

I am going to cede to Ms. Kelly, who was here in my delay in 

being here, so please. Thank you. 

Mr. CHAFFETZ. Ms. Kelly. 

Ms. KELLY. Thank you, Mr. Chair and Ranking Member Tierney. 

Mr. Judd, your colleague, Shawn Moran, the vice president of the 

National Border Patrol Council, was quoted in a recent Washington 

Post article as stating that AUO has long been promised, advertised and used by every single agent who is a nonsupervisor. 

Panel members, do you agree with that statement, that collecting 

AUO has become a promise that employees and new hires have 

come to expect? 

Mr. JUDD. Thank you for your question. Actually, when you 

apply for a job—and they have since removed this in the application—but when I applied for the job, it was actually a part of the 

compensation package that you were told that you would earn. It 

said that you would earn a substantial amount of irregular overtime in the form of administrative uncontrolled overtime. So, yes, 

all Border Patrol agents, prior to—I believe that it was removed 

from the job announcement about a year ago, but prior to a year 

ago, yes, all Border Patrol agents were told that this was part of 

your compensation package. 

Ms. KELLY. Is it true that it has been used as an actual recruitment incentive? 

Mr. JUDD. It has. It absolutely has. 

Ms. KELLY. And I think it was said that a person could earn up 

to 25 percent of their salary for AUO? 

Mr. JUDD. That is correct. 

Ms. KELLY. That is a very strong recruitment incentive. 

Mr. JUDD. It is. 

Ms. KELLY. Panel members, do you agree that it would be a challenge to implement any fix to the AUO system that would reduce 

or eliminate the AUO premium that employees have been earning? 

Mr. VITIELLO. I think the findings in the investigation and the 

work that we have done has shown that this has been a very difficult challenge. That is why we look forward to working with the 

43 

committee and others to get us into a space where we can put these 

kind of things behind us. 

Ms. KELLY. Anyone else? Okay, panel members, if we eliminate 

AUO for all employees not working on the front lines protecting the 

border, would it be difficult to retain and recruit employees to work 

at headquarters or at the department’s training facility? And how 

would we recruit and retain these folks if you think it would be a 

hard time? 

Mr. JUDD. Congresswoman Kelly, if you remove the overtime system that we currently have, you wouldn’t be able to retain employees. That is one of the biggest incentives that we have to do the 

job we do. We live in environments, if you go out to Sanderson, 

Presidio, Texas, Ajo, Arizona, we live in environments that just 

aren’t where the normal United States citizens would choose to 

live. This—what we have noticed is that, yes, AUO by law, Ms. 

Lerner has pointed it out, by law, AUO is not being used correctly. 

However, we do have a fix for that which would actually save the 

taxpayer dollars and would increase border security. 

Ms. KELLY. Do you feel the starting salary or however your salary progresses is so low that it is hard to recruit people, just—— 

Mr. JUDD. No, our salary—when I began 16 years ago our salary 

was extremely low compared to other police departments, major police departments. However, our salary is now on par with those police departments, but every police department in the United States 

has an overtime system which they use. And just like those overtime systems, we also need an overtime system. But we need an 

overtime system that would be cost-effective to taxpayers, increase 

border security, and include incentives to retain our employees. 

Ms. KELLY. Okay. Any other comments? 

I yield back the remainder of any time. 

Mr. CHAFFETZ. Thank you. 

I will now recognize the gentlewoman from Wyoming, Ms. 

Lummis, for 5 minutes. 

Mrs. LUMMIS. Thank you, Mr. Chairman. 

Ms. Emerson, you have some—a marvelous mastery of 

bureaucratese, but let me tell you what I heard when you were giving your testimony. I want to paraphrase what I thought I heard 

you say. You said, Unless Congress does what DHS wants with regard to giving us money, that we are going to keep cheating the 

taxpayers to get it unless Congress will give us more money. That 

is what I heard you say. Am I correct? 

Ms. EMERSON. AUO has been a challenge for the department 

over the last years, as we have seen and is pointed out in testimony here today and with the Office of Special Counsel. And over 

the years, there have been—— 

Mrs. LUMMIS. No, no, no. Okay, and this is something that somebody has taught you how to do when you are testifying in front of 

Congress, which is stray, obfuscate, use bureaucratese, so let me— 

let me just ask you a question again. When you testified, were you 

saying that unless Congress gives us more money, we are going to 

cheat the system? That is what I thought I heard you say. But did 

I hear wrong? Yes or no? Did I hear wrong? 

Yes or no. Did I hear it wrong? 

Ms. EMERSON. There is—yes. 

44 

Mrs. LUMMIS. Okay, what did you mean to say? What did you 

mean to say? 

Ms. EMERSON. That AUO has been a challenge over the years. 

Mrs. LUMMIS. Oh, now, come on. What did you mean to say when 

you said Congress isn’t giving us the amount of money the President requested, and so the AUO challenge will continue until Congress gives us more money. That is what I heard you say. 

Ms. EMERSON. It is not in regards to the money. It is in regards 

to the legislation that has been proposed over the years, and I appreciate the current draft legislation that has been introduced. It 

is certainly an attempt to look at our AUO situation, and to—— 

Mrs. LUMMIS. Okay, so the—so until Congress passes legislation 

that will reform the AUO, you will continue to cheat the system? 

Is that what I am hearing? 

Ms. EMERSON. No. 

Mrs. LUMMIS. Okay. 

Ms. EMERSON. And also—— 

Mrs. LUMMIS. Okay, what am I hearing? 

Ms. EMERSON. The allegations, the report from the OSC is currently under review by OGC. 

Mrs. LUMMIS. Okay, thanks. 

Ms. Lerner, obviously, the—I am going to have to go and ask you 

these questions because I can’t get a non-bureaucratese answer out 

of the department. So is that what you’re hearing from the department, that there will be no reforms until Congress changes the 

law? 

Ms. LERNER. No, I can’t say that’s a message that we have gotten. 

Mrs. LUMMIS. What is the message you are getting? 

Ms. LERNER. For the most part, I mean, the only report we have 

gotten back now is on the Ducos-Bello matter, and that report from 

Internal Affairs confirmed the allegations and said that they would 

take steps to solve the problem. Now, my concern with that report 

is, it was in many ways cut and pasted from the same report that 

they gave us 5 years ago. 

Mrs. LUMMIS. Uh-huh. 

Ms. LERNER. And the obstacles that they cite to being able to implement reform, you know, I can’t really speak to those. They say 

that they have collective bargaining agreements, and OPM—— 

Mrs. LUMMIS. Let’s explore that one. Yeah, let’s explore the collective bargaining agreement. 

Ms. LERNER. I’m not really sure that I can add much to that because I’m not—I’m not familiar with those obstacles that they have 

cited. 

Mrs. LUMMIS. If we wanted to explore whether somehow the taxpayers are being cheated because of a collective bargaining agreement that is negotiated between the government and the union on 

behalf of its members, then we have got a problem. 

Ms. LERNER. Well, I mean, let me—let me add something to this 

conversation, which is that there are probably a very wide variety 

of overtime uses here that we are talking about. Some of them 

may, in fact, be fraudulent. Right. There may be people who are 

claiming overtime when they are actually not working. 

Mrs. LUMMIS. Right. 

45 

Ms. LERNER. Or not even on the job or surfing the Internet. 

There may be folks who are actually working over time in a legitimate way. 

Mrs. LUMMIS. Right. 

Ms. LERNER. And it’s really, really hard to know the extent of the 

over time. What I can tell you is that at least in three of the cases 

that we have, they are at, you know, headquarter’s positions, 

where there shouldn’t be a need to be taking this particular type 

of overtime, where people are doing training, where they are primarily desk jobs. Doesn’t mean that folks aren’t using AUO in an 

appropriate way in other places. But it is a systemic problem, and 

it needs to be looked at department wide. And so I take, you know, 

some solace in the fact that they are doing this review, that they 

do seem serious. I think that Congress’ interest is going to help 

spur, you know, a remedy. 

Mrs. LUMMIS. Thank you. Thank you. 

Ms. LERNER. And that may make a difference this time. 

Mrs. LUMMIS. And thank you all. I know that this is hard. I appreciate it. 

Thanks, Mr. Chairman. I yield back. 

Mr. CHAFFETZ. I thank the gentlewoman. 

I will now recognize the gentleman from Massachusetts, the 

ranking member, Mr. Tierney, for 5 minutes. 

Mr. TIERNEY. Look, some of this just needs plain English and direct talk on that. But Ms. Emerson and Mr. Vitiello, I notice that 

we didn’t get your testimony before this hearing, which is totally 

unhelpful. So I won’t make you name your legislative liaison with 

Congress now and embarrass them unduly because I know it is not 

all your fault, but I think you might take this back to the department or whatever. Next time, there will be a joint effort to make 

sure that there are some repercussions for people not cooperating. 

It is just indicative of how late it has been to respond to these 

issues since January, all the way through. But you should know 

that if we ask for something, we are going to have a hearing, it is 

a courtesy to you to give you advanced notice. You owe us the courtesy back to give us the advanced testimony so that we can properly prepare. 

Mr. Judd when did you first go to work for the agency? 

Mr. JUDD. September of 1997. 

Mr. TIERNEY. So, in 1997, you were basically induced into your 

situation by knowing that you are going to get your base pay, plus 

up to 25 percent on that, because that was part of the package that 

they told you about when you were employed. Is that correct? 

Mr. JUDD. That is correct. 

Mr. TIERNEY. All right, so we have had this problem now through 

three administrations, so it is not political. This is a systemic problem, and this has been ongoing. 

And if the agents are perceived to not being paid enough for a 

salary or whatever, why has it never been a case somebody comes 

to Congress in the appropriations process and just says, in order 

to recruit people, we have got to pay them X amount of dollars 

more than we are paying now or we will have a serious recruitment 

problem? Anybody want to tackle that one? 

46 

Mr. VITIELLO. I would like to be a little precise, as it relates to 

recruitment and job announcements, the idea that the work is unpredictable and that it will exceed regular shift hours has to be advertised so that we are truthful and we are attracting people who 

recognize this. 

Mr. TIERNEY. I am going to just have a colloquy with you. I hope 

you don’t take it as interrupting. But yes, I understand that, but 

this is representation that people are saying was made, not that 

you are going to have irregular hours, but basically, you can count 

on 25 percent extra pay. And you know, that is just not the best 

way to do business. I think you can agree on that. 

Mr. VITIELLO. I agree. I think we need to be more precise, but 

the object of those words in the recruitment announcements is to 

put folks on notice that the work is irregular. 

Mr. TIERNEY. And the result has been that everybody has been 

led to believe that it is automatic and that there is their pay, plus 

25 percent more. 

Mr. VITIELLO. Well, the fine—— 

Mr. TIERNEY. If I am going to work for that agency, because I 

am really not going to get paid the base that they are talking 

about; I am going to get paid 25 percent more than that. That is 

what we have to attack. 

I appreciate Mr. Chaffetz’ legislation. We are going to review it 

thoroughly, but I am hoping we are not legalizing an already bad 

situation and that if there is an adjustment that has to be made 

in compensation in order to make sure that we get the recruitment 

we need, that is how we ought to address it. Is that statute at 3463 

the best way, or is there some other way that we ought to be doing 

it? But we are going to have to have some directness and honesty 

in advertising here in bringing people on board so that we have an 

expectation when budgets are being done as to what we are going 

to meet in that obligation. 

Ms. Emerson, you—I appreciate that they send you out here as 

a sacrificial lamb and put you in a difficult position. We really 

would like to get somebody who is responsible for that department, 

if there is anybody that is willing to accept responsibility. But the 

real problem seems to be, when given specific instances of abuse, 

the agency sets off on a broad-scope investigation of the process, 

which is fine. Ms. Lerner says it is well overdue. But who is dealing with the specific investigations into those incidents that were 

reported and the retaliation that occurred? Is there a bifurcation of 

those investigations? 

Ms. EMERSON. It is my understanding that those allegations are 

being—well, I know they are being looked at through the Office of 

General Counsel in the department-wide review, but they are also 

being handled because they are component specific by CBP. 

Mr. TIERNEY. Okay, would you have the department provide to 

this committee the exact status on each aspect of those investigations, the component ones and the individuals involved and the 

broad—we want it right where it is. We are not going to wait 

months if we can help it. We would like to know, to this day, where 

is that investigation? What have you found so far? What is left to 

be done on that investigation, by whom? All right, and who is the 

47 

ultimate responsible person to bringing this home to a final date, 

and that would be very helpful. Will you do that, please? 

Ms. EMERSON. Okay. 

Mr. TIERNEY. Okay, is there anybody, Mr. Vitiello, Ms. Emerson, 

is there anybody in the department responsible for reviewing the 

general way that we pay people, you know, other than this wide 

review of AUO, to come to Congress with a recommendation that 

perhaps we ought to have an entirely new payment system for people so that, you know, we get away from things that are ambiguous, like the AUO, all of those things, and get to a payment system where people can expect how it is they are going to get paid 

and know how that is going to go? Is anybody doing that kind of 

review? 

Mr. VITIELLO. So, I think the work that we did post the 2008 

findings led us to try to structure, train, and do better with the layers of management that review this time and how it is claimed, but 

we have also recognized that CBP, that a legislative fix was in 

order, that we wanted to structurally reform the system to give us 

the flexibility to change the compensation system to meet the mission in a better way. 

Mr. TIERNEY. Well, I think we have to look at, A, one alternative 

is how you might restructure AUO; two, whether you have to replace it with something else; and three, how is it being used in the 

recruitment of people? What is specifically being said by inference 

or directly? 

And if I can ask one further question, Mr. Chairman, have your 

indulgence on that. 

Mr. Judd, these individuals against whom the complaints were 

originally alleged, the people that were at the academy, for instance, that really aren’t out in the field and don’t have that problem of, you know, traveling back and forth whatever, what is your 

organization doing with respect to those individuals? 

Mr. JUDD. Those individuals are management officials. Therefore, 

I have no contact with them. 

Mr. TIERNEY. They are not part of your group? 

Mr. JUDD. No, they are not. 

Mr. TIERNEY. Okay. Thank you very much. 

I yield back. 

Mr. CHAFFETZ. Thank you. 

I now recognize the gentleman from Florida, Mr. Mica, 5 minutes. 

Mr. MICA. I hate to say it, it is kind of like ObamaCare, but sort 

of the same with DHS: I told you so. 

I gave a speech in this committee when we created the Department of Homeland Security, and I said, whoever thinks that bringing 22 agencies together and over 200,000 people would be more efficiently operated is dreaming. Most of you—Ms. Emerson, do we 

still have over 200,000 in DHS? 

Ms. EMERSON. Yes, from what I understand, we have approximately 230,000 employees at DHS. And as you said, it is the third 

largest Federal agency. 

Mr. MICA. And they have got 66,000 in TSA; probably close to 

60,000 Coast Guard. How many in Customs and Border Patrol 

now? 

48 

Mr. VITIELLO. Approximately 65,000. 

Mr. MICA. 65,000, okay. For the most part, you guys do a pretty 

good job. I commend you. Some tough assignments. 

But it is tough to manage that many people. Do you do a pretty 

thorough job, you think, of reviewing the qualifications of folks before you hire them, Ms. Emerson? 

Ms. EMERSON. At DHS as a whole? 

Mr. MICA. Yeah, well—— 

Ms. EMERSON. I would say each—— 

Mr. MICA. H–O-L–E, but W–H-O–L-E, go ahead. 

Ms. EMERSON. As a whole, yes, I would say so. Each component 

has their own HR operation, organization. 

Mr. MICA. Okay. So Customs and Border Patrol, the 65,000, they 

would review those folks. I ask that because I am not sure, some 

of these people are properly vetted. But you would make a decision, 

for example, if people are put on administrative leave for some violation, whether they continued to get paid. Would you make that 

decision? 

Ms. EMERSON. That would be handled by the component. 

Mr. MICA. Okay. Well, what troubles me is—and the subject of 

this hearing is, again, some abuses in overtime and some other 

payments—I am concerned that DHS still hasn’t fired—I have got 

a headline here—a black supremacist who called for mass murder 

of whites. There is an employee who was a Customs—let’s see, his 

title was immigration and customs enforcement officer. Are you familiar with this case at all? It is a gentleman by the name of 

Kimathi? 

Mr. Vitiello or Ms. Emerson? 

Mr. VITIELLO. Not specifically. I have seen the media accounts of 

it as well. 

Mr. MICA. Well, I am wondering if you had the authority—I 

mean, this guy—when you get a report of some misconduct or a 

question, how long does it take to move forward and investigating 

it? 

Mr. VITIELLO. So we take all of the allegations of misconduct seriously. 

Mr. MICA. Especially in enforcement, right? 

Mr. VITIELLO. Correct. Correct. 

Mr. MICA. I am told that there were complaints as of 2011, since 

2011. In fact, one of his supervisors says everybody in the office is 

afraid of him, and he wasn’t suspended until August of this year. 

You are not aware of that case? 

Mr. VITIELLO. I have no direct knowledge of that. 

Mr. MICA. Would you let us know about that? Is that customary 

to take 2 years before someone is suspended? Some of the things 

that he did here. On his Web site, he said, ‘‘In order for black people to survive in the 21st century, we are going to have to kill a 

lot of whites.’’ He said that ‘‘whites and their enablers’’—this is 

from his Web site—‘‘like President Obama are trying 

homosexualize black men in order to make them weaker.’’ 

He went on with other hate things against Zionists and others. 

This is an enforcement officer of, again, your agency. 

Mr. VITIELLO. No, it is not—that is not a CBP employee. 

Mr. MICA. It isn’t? 

49 

Mr. VITIELLO. It is not. 

Mr. MICA. Homeland Security then? 

Ms. EMERSON. That employee works for ICE. 

Mr. MICA. Under DHS. Are you aware of it? 

Ms. EMERSON. Yes, sir, I am aware. 

Mr. MICA. Now, do you have the tools— now this guy—what is 

frosting people is this guy is still getting paid. He is still—he is getting a salary. His salary is $115,731. Do you have the authority to 

suspend pay? Does it take 2 years when employees report misconduct or this kind of activity to put someone on administrative 

leave? 

Can you answer, Ms. Emerson? 

Ms. EMERSON. From my understanding, and I have also seen 

some reference of it in the media, that case is being handled by 

ICE, their HR shop, and also their Office of General Counsel. 

Mr. MICA. But that is under you. Can you report—my time is 

about up. Can you report back to the committee? Again, I don’t 

have to get—I know you don’t want to get specific with the personnel issue with an individual, but I want to know if you have 

the—why it took so long, again, from August, 2 years ago in 2011, 

to September, I guess it was, or August, 2 years, and then when 

they are put on administrative leave and you have got this kind 

of record, and that particular position, why someone cannot be terminated, their pay. And if you don’t have the authority, what it 

would take that we could do to hold these people responsible. That 

is an important position, and DHS is an important role. 

Again, I get these complaints from my constituents in the media 

report, and the public is outraged, so I would appreciate your responding to us. 

I yield back. 

Mr. CHAFFETZ. I thank the gentleman. 

I now recognize the gentlewoman from California, Ms. Speier, for 

5 minutes. 

Ms. SPEIER. Mr. Chairman, thank you. 

You know, this is very reminiscent of a hearing that I chaired 

when I was in the State Senate in California, when the correctional 

guards were playing a similar game, which was one in which they 

would call in sick one day, and a friend would work overtime. And 

then the following week, the friend would call in sick, and the colleague would work overtime. This is outrageous. 

And Ms. Lerner, you pointed in your comments that this is not 

just an isolated incident, that, in fact, there are—there have been 

seven whistleblowers at six facilities within the department that 

have complained specifically about AUO, is that correct? 

Ms. LERNER. That’s right. We don’t know how big a problem this 

is, but—— 

Ms. SPEIER. Well, I can tell you right now, it is big. If you have 

already heard from six offices, I can guarantee you that it is a wink 

and a nod, and it is something that is going on throughout the department. And it has got to stop. Now, you mentioned in your comments that you are unclear about whether or not the agency is ultimately willing or able to make the corrective actions. Can you explain that to us, why you think they are unwilling? 

50 

Ms. LERNER. Well, the track record, you know, the 5-year long 

notice that they have had. This is not a new issue that has come 

to their attention for the first time. I think the difference this time, 

though, may be having congressional interest. 

Ms. SPEIER. Right, sometimes that always—— 

Ms. LERNER. And so I really want to thank this committee for 

its interest in this important issue. 

Ms. SPEIER. So my concern are the whistleblowers who come forward, who then go through physical, health deterioration, because 

they had the guts to come forward and, as Mr. Florence exhibited 

today, had a very difficult time even reading his comments. So I 

think it is imperative, and I say this to all of you representing the 

department, this has got to be fixed. Human beings who come forward and make points like this that show that there is abuse need 

to be heard and the issue needs to be resolved. 

And if. in fact, it is not going to be resolved internally, then Congress will take steps. So my first question to those of you within 

the department is, we all recognize the AUO has got to be fixed. 

The question is, whether or not you can do it internally, or do we 

need congressional action to do it? 

So I guess to Ms. Emerson, and Mr. Vitiello, do you have any 

thoughts on the legislation that has been introduced by Chairman 

Chaffetz, and whether or not it is workable, or whether or not you 

could support it? 

Mr. VITIELLO. We look forward to working with yourself and others on the committee and the chairman to give a full analysis that 

would be—that would look at all of the aspects of it and can comment more fully in support. 

Ms. SPEIER. Well, have you looked at the bill? 

Mr. VITIELLO. I have seen it. 

Ms. SPEIER. And what do you think of it? 

Mr. VITIELLO. I think it allows for the—an ability to meet the 

mission much like we can now, the flexibility to assign and then 

availability to flex beyond the scheduled shift, yes. 

Ms. SPEIER. Mr. Vitiello, were you aware of the abuse of AUO 

before it was brought to the attention of the department by the 

whistleblower? 

Mr. VITIELLO. This has actually been a challenge for CBP and 

the Border Patrol for quite some time. 

Ms. SPEIER. Okay, so you knew about it but didn’t fix it. 

Mr. VITIELLO. Well, I would like to separate what is termed as 

‘‘abuse.’’ Misconduct by employees, people who are claiming hours 

that they don’t work or doing things at work that are inconsistent 

with the mission, is recognized as misconduct and is referred to authorities for investigation and a follow up. We do that on a regular 

basis. 

Ms. SPEIER. Yeah, but that is different because this is a ruse that 

is created, correct? 

Mr. VITIELLO. We have looked at AUO structurally, and we have 

tried to improve training. We have tried to improve awareness. We 

have issued guidance to the field and to our offices to better manage it and monitor it. We have taken steps in fact this year to reduce the amount of the costs in it. But yet we still are challenged 

and the findings suggest that we still have a lot more work to do. 

51 

Ms. SPEIER. Ms. Emerson, let’s presume that the bill passes and 

gets signed into law. What do you think the effect will be within 

the department? 

Ms. EMERSON. Well, currently within the department, we are reviewing that to look at it to make sure that it is physically sound 

so that, you know, it is not costing additional sums. We wouldn’t 

have to increase—— 

Ms. SPEIER. How can it cost additional sums if you are going to 

restrict the amount of AUO? 

Ms. EMERSON. Well, there are experts in the department who are 

looking at that. I have read it, but I am not an expert in that area 

in terms of the monetary issue, but—— 

Ms. SPEIER. All right, enough said. You are shaking your head. 

Would you like to comment? 

Mr. JUDD. Yes, I would. What we are offering, what this bill is 

offering right now, you are getting an hour and a half of work out 

of agents on the border to secure the border that is broken. The 

border is broken. What we are giving you is, we are giving you 2 

hours for the same pay that you are getting for an hour and a half. 

That is fiscally responsible and for anybody to say that it is not 

and that it needs to be reviewed is outrageous. It is an outrageous 

claim. Okay, this is fiscally responsible. It saves $1 billion over 

what we have previously done in the past. And frankly, I am asking you for a pay cut. I am coming to you and I am telling you, 

agents are willing to take a pay cut to secure—to better secure the 

border. 

We are not talking about AUO abuses amongst frontline agents. 

We are talking about AUO abuses amongst management. And even 

though we are talking about AUO abuses amongst management, 

we are coming to you and saying, Look, we will fix the problem 

that management created; we will give you the fix, and the fix is 

there, and it saves the taxpayers money, and it secures the border. 

It is—I don’t understand how the administration can possibly say 

that we have to review this when they have proposed similar—in 

appropriations, similar measures, and now all of a sudden we have 

to review it. I don’t understand. 

Ms. SPEIER. Well, I think there are others here that disagree 

with you, Mr. Judd. 

My time is expired. 

Mr. CHAFFETZ. Thank you. 

I now recognize the gentleman from South Carolina, Mr. Gowdy 

for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Ms. Emerson you are an attorney, correct? 

Ms. EMERSON. Yes, sir. 

Mr. GOWDY. I am a simple-minded person who tries to assign 

commonly understood definitions to words. What does the word 

‘‘uncontrollable’’ mean to you? 

Ms. EMERSON. That would mean that it would be unscheduled. 

Mr. GOWDY. So ‘‘uncontrollable’’ means unscheduled? So I could 

not schedule to write a report after hours, and that would count 

as uncontrollable? Is that your testimony? 

Ms. EMERSON. It would depend on the situation. 

52 

Mr. GOWDY. How about a report that has no deadline whatsoever? 

Ms. EMERSON. Again, it would depend on the situation. 

Mr. GOWDY. Well, how in the world does that depend on the situation? If there is no deadline, how is it uncontrollable? Why can’t 

you do it the next day during your normal working hours? 

Ms. EMERSON. That is possible. 

Mr. GOWDY. Possible? Possible? How about watching movies, is 

that controllable? 

Ms. EMERSON. As was referenced earlier, that would be seen 

most likely as misconduct and would be handled separately. 

Mr. GOWDY. Most likely. How about watching television, is that 

controllable? 

Ms. EMERSON. It would depend on the situation. 

Mr. GOWDY. Depend on the show or depend on the situation? 

Ms. EMERSON. It would depend on the situation. 

Mr. GOWDY. Well, Ms. Emerson, most folks don’t go into law enforcement for the money. It is an incredibly difficult job that takes 

its toll on every single aspect of life. So they don’t go into it for the 

money, and they don’t go into it for the easy hours or the prestige. 

And it is for that reason and many others that I have a tremendous 

amount of respect for the women and men in law enforcement. It 

is an incredibly hard job. 

But people who live under the laws fully expect those who execute and enforce the laws to abide by them. And your definition of 

‘‘uncontrollable’’ would make a law school professor blush. Watching television is not uncontrollable. Watching movies is not uncontrollable. Writing reports with no deadline is not uncontrollable. Do 

your agents ever testify in court hearings, Ms. Emerson? 

Ms. EMERSON. If you—yes. Yes. 

Mr. GOWDY. Would you rather me ask the agent? Do you ever 

testify in court hearings? 

Mr. VITIELLO. I have. 

Mr. GOWDY. Do you ever swear out search warrants or arrest 

warrants? 

Mr. VITIELLO. I have provided affidavits for that purpose. 

Mr. GOWDY. Right, and an affidavit is under oath, right? 

Mr. VITIELLO. Correct. 

Mr. GOWDY. You ever testify before a grand jury? 

Mr. VITIELLO. I have. 

Mr. GOWDY. You ever testify in sentencing hearings? 

Mr. VITIELLO. I don’t believe so. 

Mr. GOWDY. But your agents could. 

Mr. VITIELLO. Yes. 

Mr. GOWDY. All right. And the common theme in all of that is 

the credibility of the agent, right? 

Mr. VITIELLO. Correct. 

Mr. GOWDY. Do you agree that acts of deceit or dishonesty or 

fraud could be used to impeach the credibility of a law enforcement 

agent? 

Mr. VITIELLO. I do. 

Mr. GOWDY. In fact, it often is, right? 

Mr. VITIELLO. Correct. 

53 

Mr. GOWDY. And so when you are in front of a jury and you are 

testifying that you witnessed X, Y or Z happen and your credibility 

is being attacked because you committed what some might conclude to be an act of dishonesty, that hurts the entire cause of law 

enforcement, doesn’t it? 

Mr. VITIELLO. It does. 

Mr. GOWDY. Do you agree with Ms. Emerson’s definition of ‘‘uncontrollable’’? 

Mr. VITIELLO. I think that there are situations within the work 

that require agents to flex beyond their shift. What is—what was 

pointed out in the findings and what CBP agreed needed to be 

worked on were these allegations of misuse of time, whether within 

AUO or without it. And so we have taken that to heart. Those matters will be referred to the Internal Affairs investigative process 

and then dealt with appropriately after. 

Mr. GOWDY. Well, I say this with all due respect as somebody 

who is crazy about law enforcement and respects the women and 

men who go into it, once you lose your credibility, it is almost impossible to get it back. There was a German philosopher that I 

think the chairman is a fan of, Friedrich Nietzsche, who said, I’m 

not mad that you lied to me; I’m mad that I can’t believe anything 

else you ever tell me. So deceit and dishonesty matters, and it impacts your ability to do your job and the women and men who also 

wear uniforms, whether it is a municipal police officer or a DEA 

agent. So I hope this gets fixed, and I hope it gets fixed real soon, 

and I hope the definition of ‘‘uncontrollable’’ becomes something 

that the jury, the American people, can understand, because watching TV and watching movies and writing reports with no deadline 

doesn’t fit that definition. 

I yield back, Mr. Chairman. 

Mr. CHAFFETZ. I thank the gentleman. 

I will now recognize the gentlewoman, Ms. Maloney for 5 minutes. 

Mrs. MALONEY. Well, first of all, thank you, Mr. Chairman, and 

ranking member for calling this meeting. And I read a recent 

Washington Post article about the misuse of administratively uncontrollable overtime at the Department of Homeland Security. 

And I would like unanimous consent to place it in the record. 

Mr. CHAFFETZ. Without objection, so ordered. 

Mrs. MALONEY. I would like to follow up with a little bipartisan 

support for Mr. Gowdy’s statements and ask Special Counsel 

Lerner, in your report, you questioned, as he did, the ability and 

willingness of the Department to address the AUO problem. And 

can you explain for us the reasoning underlying your concern? 

Roughly 89 percent of those workers in the Situation Room were 

claiming overtime, yet they were watching movies. Could you 

elaborate, Ms. Lerner, on your concerns? 

Ms. LERNER. Sure, I mean, the extent of the problem certainly 

goes to my concern about solving the problem, because it is so 

widespread. We know that there are 22,000 Border Patrol agents 

in CBP alone who are AUO eligible. We know that there is $500 

million in overtime at CBP alone. If even a fraction of that amount 

is improper, we are talking about a huge amount of money in the 

budget. 

54 

So it’s a widespread problem, but I also want to emphasize that 

it’s a problem along a continuum, I think. Based on the information 

that we have now, there may in fact be some fraudulent use of 

overtime where folks are claiming it who are not, in fact, working 

at all. There may be people who are working but not doing AUOcertified activities. 

And just so the record is clear, the regulations are very, very 

clear about the definition of what irregular, what type of work is 

qualified for AUO. It has to be irregular and occasional circumstances, where, for example, the failure to stay on duty would 

equal negligence. So, you know, we don’t have to guess at what the 

regulations are intending for this type of overtime. It is very clear. 

And I think it is terrific that this committee is focused on this, 

and I think that the statements from DHS have been positive in 

terms of recognizing the problem. Lots of times we get reports back 

from agencies that don’t even admit that there is a problem. So, 

I’m hopeful that that will lead to change, but I think that it is an 

entrenched problem, it is a widespread problem, and it is part of 

the culture, and it is probably going to take some sort of change 

in the law to solve it. 

Did I answer your question? 

Mrs. MALONEY. Yeah, but basically you are saying that they 

could take steps right now to address it. They could right now 

crack down on those areas that are clearly not eligible, as he mentioned, you know, putting off the time for your reports, movies, sitting there. Given the problems that we have in our budget with sequestration and others, it’s something that we could address already in the agencies. And we have run through it. 

I just would like to ask all the panelists to put in writing, Ms. 

Emerson and Vitiello and Judd, what you are already doing right 

now to address it, and get it back to the committee to review as 

we proceed to go forward. 

But I want to focus on one of the whistleblowers who was aware 

of these abuses for years, but then he really began to be concerned 

after sequestration kicked in and was implemented this year, and 

this particular person was worried that employees were losing 

work and important programs were being cut while other employees were watching television and continuing to get this $500 million that you are talking about and to receive improper AUO payments, which is outrageous. 

So, I would like to ask Ms. Emerson and Mr. Vitiello, as you 

know, sequestration was implemented this year and current budget 

talks are literally underway right now for the coming years, 2014 

and 2015, and we are also looking at alternatives to replace sequestration. But if Congress does not replace sequestration cuts, further 

cuts will be imposed on agencies, including the Department of 

Homeland Security, for fiscal year 2013. And CBP was able to 

avoid furloughs. But are you concerned that the Department may 

have to furlough employees and cut important programs while 

AUO continues to be routinely used and authorized for administrative tasks as the whistleblower pointed out? And why aren’t you 

cracking down on these abusive practices of AUO? Ms. Emerson 

and Mr. Vitiello? 

55 

Mr. VITIELLO. So, the allegations of misconduct or the misuse of 

the funding is being investigated by Internal Affairs. There is a 

process for that and that will be dealt with appropriately. 

As it relates to the budget, most of the AUO that’s used by the 

Border Patrol in that account is used in the field. Very little of it 

is used at headquarters. And we are in the middle of reviewing 

CBP-wide and then the Secretary has ordered review for the Office 

of General Counsel across the Department. Once those reviews are 

complete, we at CBP can rewrite the directives and change the instructions to make them more applicable. 

Mrs. MALONEY. Yeah, okay. As I understand it, during sequestration CBP originally considered eliminating all AUO and ended up 

cutting back on the amount of AUO. Can you tell us why and how 

that decision was made? 

Mr. VITIELLO. So, when we did the planning for the budget, one 

of the planning scenarios was to decertify AUO, and AUO-earning 

employees did in fact get a potential decertification letter. We were 

able to make significant cuts in other areas, including overtime, to 

avoid both furloughs and decertification. 

Mrs. MALONEY. My time has expired. 

Mr. CHAFFETZ. Thank you. 

I will now recognize myself for 5 minutes as we start another 

round, and then we will turn the chair over to Mr. Bentivolio. 

Ms. Emerson, how many people within your Department? The 

one that you are responsible for, Human Capital, how many people 

are in your Department? 

Ms. EMERSON. In the Department? 

Mr. CHAFFETZ. Yes. 

Ms. EMERSON. Approximately 230,000 employees. 

Mr. CHAFFETZ. But how many within your—— 

Ms. EMERSON. In OCHCO, in the Office of the Chief Human Capital Officer? Approximately 210. 

Mr. CHAFFETZ. Two hundred ten. And how many attorneys does 

Homeland Security have? 

Ms. EMERSON. I’m not sure. I am an attorney, but I am not acting as an attorney for the Department of Homeland Security. So, 

let me just clarify with that question. I’m not acting as an attorney 

for DHS. 

Mr. CHAFFETZ. Ms. Lerner, how many people within the Office 

of Special Counsel did you have working on this? 

Ms. LERNER. Well, you are looking at the main one right here. 

Mr. CHAFFETZ. Yes. 

Ms. LERNER. And, you know, we have only about 8 people in our 

disclosure unit. 

Mr. CHAFFETZ. Okay, so you have 8 people. You have 230,000. 

You have a couple hundred that you are responsible for. There are 

undoubtedly hundreds, if maybe not thousand-plus attorneys. 

These women right here were able to figure this out in pretty short 

order. They focused on it. Focus determines reality. 

Ms. Lerner, tell me about the Situation Room. One of the highlights here is the Situation Room in Washington, D.C. What it is? 

How many employees are we talking about? What happens there 

in the Situation Room? 

56 

Ms. LERNER. I’m sorry, I don’t remember offhand how many employees. It is not a huge office. I think it is under 100. But we know 

that about 90 percent of the time people were taking 2 hours of 

AUO who worked in the Situation Room. 

Mr. CHAFFETZ. Every day? 

Ms. LERNER. Every day, yeah, about 90 percent of the time. 

Mr. CHAFFETZ. So, 90 percent of the time the people working in 

the Situation Room—now, Situation Room connotates it is fairly 

important, correct? What were they doing when they took an extra 

2 hours? 

Ms. LERNER. Well, Mr. Ducos-Bello, who was the whistleblower 

from the Situation Room, alleged that he observed people watching 

TV, being on the Internet, relaxing, and that was why he felt so 

compelled to come forward. He felt that there was a real waste. 

Mr. CHAFFETZ. And you fairly quickly—— 

Ms. LERNER. On a continuum that would be—— 

Mr. CHAFFETZ. You fairly quickly were—how long did it take you 

to come to that conclusion, that this was indeed a valid allegation? 

Ms. LERNER. What we look at again is a substantial likelihood 

of the allegations. And before we make a referral to the agency we 

do a review of the whistleblower’s allegations. 

Mr. CHAFFETZ. But you substantiated it? 

Ms. LERNER. We don’t actually substantiate them. It has to meet 

that threshold, and we decided that Mr. Ducos-Bello’s allegations 

met that threshold for referral to the agency for investigation. And 

that probably took us a couple of months. 

Mr. CHAFFETZ. And they came back and actually confirmed it? 

Ms. LERNER. They did come back and confirm it, yep. 

Mr. CHAFFETZ. So now that they have confirmed it, the allegation 

was made, it was investigation by the Office of Special Counsel, 

has anybody been fired? Ms. Emerson? 

Ms. EMERSON. That’s being handled by the component. That’s not 

handled by my office. 

Mr. CHAFFETZ. Who is the component? 

Ms. EMERSON. The component is the Border Patrol. 

Mr. CHAFFETZ. So what’s your responsibility here? I mean, if you 

are the chief of human capital and you have got allegations of 

fraud and misuse of dollars, potentially criminal—or potential, you 

know, breaking of the law—you just wash your hands of it? 

Ms. EMERSON. Well, actually, I’m involved in the Departmentwide—— 

Mr. CHAFFETZ. Here we go. We are in the circle again. Let’s go 

back to what Mr. Gowdy was talking about. There’s valid use of 

AUO and there’s then an abuse of AUO. Explain to me in your own 

words what an abuse of AUO is. 

Ms. EMERSON. Well, some of the things that we heard about and 

we saw in Ms. Lerner’s reports could very well include employee 

misconduct. And in those instances—— 

Mr. CHAFFETZ. Well, explain to me employee misconduct, give me 

some examples, give me a definition of what a misuse of AUO 

would be. 

Ms. EMERSON. Well, from what I’m understanding, those are currently under investigation. 

57 

Mr. CHAFFETZ. No, no, no, no, no, no. You are not investigating 

the definition. We have given you weeks’ notice, in fact years’ notice, that this is an issue. You are highlighting and confirming this 

committee’s concern, and that is that you haven’t taken it seriously. What is the definition of AUO, and what is the definition of 

an abuse of AUO? 

Ms. EMERSON. The definition is provided by in the governmentwide regs and in the laws. 5 U.S.C. Speaks on it, as does the implementing regulations, 5 CFR 550, and it sets out the definition for 

AUO. 

Mr. CHAFFETZ. And what’s the consequence if you violate the 

AUO? 

Ms. EMERSON. In terms of employee misconduct, that is handled 

by the component. 

Mr. CHAFFETZ. So they have full discretion? They just give a 

wink and a nod and let it keep happening? 

Ms. EMERSON. That could lead to disciplinary action. 

Mr. CHAFFETZ. Which could be what? 

Ms. EMERSON. Up to and including removal from Federal service. 

Mr. CHAFFETZ. Has that ever happened? 

Ms. EMERSON. I would defer to the Border Patrol for that. 

Mr. CHAFFETZ. I mean, AUO is—we have other departments and 

agencies, too. Are there any sort of investigations happening from 

your Department, or the Department of Homeland Security in 

other—we are focused on CBP here—any others that you are investigating for abuse of overtime? 

Ms. EMERSON. In the Department-wide review we are looking at 

the Department component-by-component policies and procedures 

for AUO. It is a Department-wide review, including—— 

Mr. CHAFFETZ. I’m going to ask one more time as I conclude 

here. What is an abuse of the AUO? 

Ms. EMERSON. The abuse of the AUO in terms of employee misconduct could be a number of issues, some of which may be spelled 

out in the OSC reports, but those are currently being investigated 

and they would be handled by the component. 

Mr. CHAFFETZ. You can’t seem to answer that question, can you? 

Defining an abuse of the AUO. One more time, do you have any— 

don’t tell me it’s being reviewed. What would constitute an abuse 

of the AUO? 

Ms. EMERSON. It would depend on the situation. It really would. 

Mr. CHAFFETZ. This is unbelievable, and unbearable, and it is a 

total lack of leadership throughout the Department and agency. 

I yield back my time and recognize the gentleman from Massachusetts, Mr. Tierney. 

Mr. TIERNEY. Ms. Emerson, let me see if I can help you out a 

little bit. Ms. Lerner’s group found that there was a reasonable belief that the allegations were accurate. I should maybe ask Ms. 

Lerner that. Is that your standard? 

Ms. LERNER. Substantial likelihood—— 

Mr. TIERNEY. Substantial likelihood. Ms. Lerner found that there 

was a substantial likelihood. Now it is up to your people to determine whether or not it actually happened, right? She sends it to 

you as a finding that there is a substantial likelihood it happened. 

Your group then has to determine whether or not it did happen. 

58 

Ms. EMERSON. It actually goes to the Office of General Counsel. 

That’s not my group. 

Mr. TIERNEY. Okay. 

Ms. EMERSON. The Office of General Counsel is actually the one 

that receives the Office of Special Counsel reports. And they usually share that information with the IG, and then they deal with 

the component regarding the issue. So those issues specifically do 

not come to my office. 

We have been tasked, because it is a Department-wide review of 

AUO throughout the Department component by component, my office has been asked to assist in that matter. But the actual discipline of any employees from that goes to the component. 

Mr. TIERNEY. All right. So as unusual as it may seem to us, the 

fact that you are the chief officer here has nothing to do with discipline or violations or anything like that. You are strictly policy. 

Is that the deal? 

Ms. EMERSON. We have oversight, and certainly if a component 

came to us to ask for advice and guidance, or if we are directed to 

handle a situation involving a disciplinary action—— 

Mr. TIERNEY. All right, but you don’t check to see whether or not 

they properly handle it? You don’t ever take responsibility to make 

sure that each component actually does its work? 

Ms. EMERSON. Only if request—— 

Mr. TIERNEY. Request from who? 

Ms. EMERSON. From leadership. For example—— 

Mr. TIERNEY. All right. So, please, so it goes to somebody else, 

and they are responsible for it, and you have nothing to do with 

it after that. Even though you are the chief officer of this thing, you 

never, ever take a personal responsibility without being requested 

by somebody else to see whether or not there was a continuing investigation that came to a conclusion with actions taken as a result 

of that conclusion? 

Ms. EMERSON. In this situation—— 

Mr. TIERNEY. In any situation. 

Ms. EMERSON. It depends on the situation. 

Mr. TIERNEY. Forget it. Forget it. I was trying to help you out, 

and beyond help. All right, beyond help, disturbingly so. 

So now we have the Internal Affairs of CBP, Mr. Vitiello, do they 

have a role here? They are the ones that are responsible for investigating those specific referrals from Special Counsel, am I correct? 

Mr. VITIELLO. That’s correct. 

Mr. TIERNEY. Okay. Fifty percent of their employees, 50 percent 

of their employees receive AUO. 

Mr. VITIELLO. In the Internal Affairs, yeah, correct. 

Mr. TIERNEY. Do you have a conflict of interest problem there? 

Mr. VITIELLO. I don’t believe so. 

Mr. TIERNEY. Why not? 

Mr. VITIELLO. Well, that’s the compensation system that was 

available when those positions were filled and people were hired 

for them. 

Mr. TIERNEY. Yeah, but I’m hearing from Mr. Judd that back 

into 1996, at least, it seems that, you know, everybody sort of was 

in on the game here. And so are they going to start looking at this 

thing saying, well, it’s the game, everybody is in on it, we take adVerDate Aug 31 2005 09:54 Jun 04, 2014 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 C:\DOCS\87893.TXT APRIL
59 

vantage of it, they take advantage of it? That may color the way 

they proceed, no? 

Mr. VITIELLO. I don’t believe so. 

Mr. TIERNEY. So $22,000 per employee per year on this system 

and you don’t think that they are going to have some loss of objectivity from the fact that they are all in on the process that allows 

this to happen? 

Mr. VITIELLO. They are responsible to claim the hours that they 

work, and the nature of their work sometimes exceeds the regularly—— 

Mr. TIERNEY. The nature of everybody’s work sometimes exceeds 

it, but we found abuse here, and some of the abuse we found out 

is policy, almost. In fact, that people are encouraged do it, that 

they would be there. So I just have a problem with it. I think you 

ought to have a problem with it. I hope somebody in the Department takes that into account when they are looking at that. 

Ms. Lerner, do you have a problem with that? 

Ms. LERNER. I mean, I think the problem is that there are folks 

who are at headquarters offices who are not, you know, on the border, who are taking this leave. But we also have to be careful not 

to throw the baby out with the bath water. If there are folks who 

are actually legitimately taking or using AUO, by all means, but 

it seems that there needs to be a real effort on the part of DHS 

to figure that out, and you could put a stop to it right away just 

by saying anyone who is not working on an irregular or, you 

know—— 

Mr. TIERNEY. Well, they can interpret the statute. I guess that’s 

the problem here. We have this ongoing general review about 

whether or not the whole system works, but then it seems to be 

nobody is saying like, look, from this day forward, no matter what 

the understanding was that Mr. Judd referred to that has been 

going on as a wink and blink, and this is an extra 25 percent for 

everybody on that, whatever that is, somebody ought to come down 

with an affirmative policy statement that says from this day forward we are going to interpret this law very, very strictly, as Mr. 

Gowdy was putting forward. We all know what uncontrollable is. 

From this day forward, whatever the deal was before, it is over, 

and now while we are doing our overall policy that’s going to be 

the implementation. 

Ms. LERNER. If I could just add—— 

Mr. TIERNEY. Sure. 

Ms. LERNER. —there are five more reports that are due to us, 

and we may have more information from the agency when we get 

those reports about what remedial efforts they are taking. 

Mr. TIERNEY. Okay. 

Ms. LERNER. So maybe we will get more answers shortly. 

Mr. TIERNEY. Wishful thinking. 

Thank you. I yield back. 

Mr. BENTIVOLIO. [Presiding] Thank you, Mr. Tierney. 

I’m listening to you, Ms. Emerson, and Mr. Tierney is trying to 

give you all the help you need. You said you were an attorney? 

Ms. EMERSON. I have a JD, member of the bar. 

Mr. BENTIVOLIO. Right. 

60 

Ms. EMERSON. But in my capacity as CHCO, I’m not an attorney, 

and I don’t have attorneys who work for me in my organization. 

Mr. BENTIVOLIO. I understand. Let me ask you a question. A border patrolman arrests somebody within an hour of the end of their 

shift. They have to drive a distance to process the criminal or the 

person. And they take about an hour and a half beyond their shift 

to complete that. Is that fair overtime? 

Ms. EMERSON. I would like to defer to the Border Patrol. 

Mr. BENTIVOLIO. It’s a very simple question. He is in the process 

of doing his job, which is to protect the border, him or her, and 

they have to process somebody and go into an hour and a half of 

overtime. In your opinion, is that legitimate overtime? 

RPTS COCHRAN 

DCMN CRYSTAL 

[12:02 p.m.] 

Ms. EMERSON. It sounds like it would be. 

Mr. BENTIVOLIO. It is very simple. It is, beyond a reasonable 

doubt. I have never worked Border Patrol. I know what responsible 

and necessary overtime. If he is processing and doing his job and 

he needs that additional hour and a half, it is legitimate overtime. 

Would you agree, sir? 

Mr. VITIELLO. I would. 

Mr. BENTIVOLIO. Okay. 

Another officer, end of his shift, he is not processing, he is not 

doing anything, but he wants to put in overtime. And so he goes 

on the Internet, does something, maybe checks his personal email 

or falls asleep. I think I even read that in one of these reports. Legitimate overtime or not? 

Ms. EMERSON. No. 

Mr. BENTIVOLIO. Okay. You are an attorney, or have attorney 

training. You ever heard of the term plausibly state, boldly assert? 

Ms. EMERSON. I am sorry, could you repeat that? 

Mr. BENTIVOLIO. Have you ever heard the term or phrase plausibly state, boldly assert? 

Ms. EMERSON. No, sir. 

Mr. BENTIVOLIO. Okay. It is a lawyer thing, isn’t it? Are you a 

lawyer, Mr. Tierney? 

Mr. TIERNEY. I am a lawyer. 

Mr. BENTIVOLIO. You have heard that before? 

Mr. TIERNEY. Yes. 

Mr. BENTIVOLIO. Great. 

Is it within your authority to notify when you hear somebody is 

abusing their overtime to send a letter to the Border Patrol or 

some other agency that comes under your jurisdiction outlining 

those problems or situations, put them on notice, plausibly state. 

Ms. EMERSON. If it came to my attention, yes, sir. 

Mr. BENTIVOLIO. Okay. Well, I have got the impression that quite 

a few of these concerns came to your attention. 

Ms. EMERSON. Actually, they go, because they are coming from 

OSC, they go to the Office of the General Counsel, who then shares 

it with OIG, the Office of Inspector General, and then they usually 

reach out to the component where the alleged act occurred. I am 

involved in this situation because it involves Department-wide review of AUO component by component. 

61 

Mr. BENTIVOLIO. Okay. So individually you don’t deal with individual issues? 

Ms. EMERSON. Usually it depends on what the issue is. But when 

it is from the Office of—— 

Mr. BENTIVOLIO. Abuses of overtime. Blatant disregard for the 

ethics of overtime. 

And I believe you have training in that, don’t you, Mr. Vitiello? 

I think I read, since 2007 you train your staff on ethics and what 

abuses of overtime are and are not, correct? 

Mr. VITIELLO. There was specific training issued after the 2008 

findings. 

Mr. BENTIVOLIO. But it is not working, or it is? 

Mr. VITIELLO. Well, the findings indicate that we still have a lot 

of work to do, that the training in and of itself isn’t sufficient. That 

is why the internal review that is being conducted at CBP specific 

to this issue, a new directive is in order and we are working on 

that, and then the Department-wide review ordered by the Secretary is also in order. 

Mr. BENTIVOLIO. Okay. So just for my understanding, because I 

am somewhat unfamiliar with your process, but abuses come to 

your attention, is that correct, Ms. Lerner? 

Ms. LERNER. Abuses come to us when whistleblowers come to us. 

Mr. BENTIVOLIO. Okay, whistleblowers come to you, they point it 

out. Do you in turn send some kind of notification or letter about 

these abuses to—— 

Ms. LERNER. The head of the agency. 

Mr. BENTIVOLIO. The head of the agency, but not the chief of 

human resources? 

Ms. LERNER. No. In this case we sent it to then Secretary 

Napolitano. 

Mr. BENTIVOLIO. Okay. Does the employee who is abusing overtime get a letter of reprimand that goes in their personnel file? 

Ms. LERNER. We don’t have authority for disciplinary action. 

They did not report back to us in this case. Sometimes they do but 

sometimes—well, in this case—— 

Mr. BENTIVOLIO. Do you have authority to follow up? 

Ms. LERNER. We do have—I mean, statutorily we don’t have it 

explicitly, but we do follow up. In cases like this we will ask the 

agency for supplemental reports. In two of the six cases that we 

have outstanding we have asked for additional information. So, 

yes, we can follow up. 

Mr. BENTIVOLIO. You can, but not always. Who is responsible—— 

Ms. LERNER. If we think that the circumstances require followup, we do it. We have done it in many cases since I have taken 

over as Special Counsel in 2011. Where an agency promises to 

make systemic reforms, we do follow up to make sure that they are 

being taken. So, yes, we do. 

Mr. BENTIVOLIO. I see I have run out of time. Do you have additional questions? 

Mr. TIERNEY. No. 

Mr. BENTIVOLIO. Okay. I have a few more questions. I would like 

to finish up here and then we can adjourn. 

62 

In regards to the employees that abuse overtime, do you counsel 

the employee? Do you give them a letter of reprimand, Mr. Vitiello? 

Did I pronounce that correctly. 

Mr. VITIELLO. Vitiello, correct. 

So when it is established that an employee is engaged in misconduct, whether for this or other matters, it is referred and they 

are put through a process with our own HR department for discipline, yes. 

Mr. BENTIVOLIO. Okay. What is the discipline? Do they have to 

give back the money or what? What is the discipline? 

Mr. VITIELLO. It depends on the allegation. It depends on what 

the findings develop. 

Mr. BENTIVOLIO. Okay. Are you familiar with the case studies 

that I have read that was given to me in the brief? 

Mr. VITIELLO. Yes. I have considered all the materials that 

brought us here today. 

Mr. BENTIVOLIO. Okay. Employees using overtime to sleep or 

watch the Internet. What happens to that employee? 

Mr. VITIELLO. It depends on the findings. If those allegations are 

proven to be true, then they are put through a discipline process. 

And just to give you some data, in 2012 there were 84 cases around 

AUO that were alleged in CBP in 2012 until today, so in the last 

2 years. And the range of dispositions that I have, according to the 

reports, oral or written counseling; closed with no action, which 

they weren’t substantiated; there is 43 that are still open; and then 

grievances filed against. There is one anomaly case which is still 

being considered. So that process does work and we have used it. 

Mr. BENTIVOLIO. Well, apparently it is not, because this has been 

ongoing since 2007, to my understanding, according to this briefing. 

Mr. VITIELLO. But to the extent that the agency is aware of misconduct, it is referred through those processes. 

Mr. BENTIVOLIO. Okay. So on individual cases you are 

reprimanding, counseling employees that you found in violation or 

improper use of overtime. 

Mr. VITIELLO. And then we are attempting to do structural 

changes to put this issue behind us. That is why we are excited 

about the prospect of legislation that gets us to a fix, to put this 

kind of issue behind us. 

Mr. BENTIVOLIO. Great. Thank you very much. I appreciate it. 

I have no further questions. Any questions? 

Mr. TIERNEY. No. 

Mr. BENTIVOLIO. I would like to thank our witnesses for taking 

time from their busy schedule to appear before us today. The committee stands adjourned. Thank you. 

[Whereupon, at 12:10 p.m., the subcommittee was adjourned.] 

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