Border Security: Additional Actions Needed to Strengthen CBP Efforts to Mitigate Risk of Employee Corruption and Misconduct
Released: 2013-01-03T00:00:00

Letter

Background

CBP is the largest uniformed law enforcement agency in the United States, with approximately 21,400 BPAs patrolling between the nation’s ports of entry and more than 20,000 CBPOs stationed at air, land, and seaports nationwide at the end of fiscal year 2011.southwest border, there are about 5,500 CBPOs and 18,000 BPAs as of the end of fiscal year 2011. CBPOs, based within OFO, are responsible for processing immigration documentation of passengers and pedestrians and inspecting vehicles and cargo at U.S. ports of entry. BPAs are based within the USBP and are responsible for enforcing immigration laws across the territory in between the ports of entry and at checkpoints located inside the U.S. border. Together, CBPOs and BPAs are On the U.S. responsible for detecting and preventing the illegal entry of persons and contraband, including terrorists and weapons of mass destruction, across the border.

Hiring Process for CBPOs and BPAs

U.S. citizens interested in becoming CBPOs or BPAs must successfully complete all steps of the CBP hiring process, which includes an online application, a cognitive exam, fingerprint collection, financial disclosure, a structured interview, fitness tests, medical examinations, a polygraph examination, a background investigation, and a drug test. CBP IA’s PSD manages the personnel security program by initiating and adjudicating preemployment investigations for CBP applicants, which aim to ensure that the candidates are reliable, trustworthy, and loyal to the United States, and therefore suitable for employment. In addition, CBP IA’s Credibility Assessment Division (CAD) is responsible for administering the polygraph examinations, interviewing applicants, and collecting any admissions that an applicant may reveal including past criminal behavior or misconduct. Human Resource Management is responsible for making the hiring decisions based on the final suitability determination from CBP IA (this includes PSD’s overall assessment of the polygraph examination and background investigation), as well as the applicant’s successful completion of the other steps in the hiring process.

The number of CBP employees increased from 43,545 in fiscal year 2006 to 60,591 as of August 2012. During this time period, both OFO and USBP experienced a hiring surge and received increased appropriations to fund additional hiring of CBPOs and BPAs. The majority of the newly hired CBPOs and BPAs were assigned to the southwest border. In particular, during this time period, their total numbers along the southwest border increased from 15,792 to 24,057. As of fiscal year 2011, 57 percent of the CBPOs and BPA were stationed along the southwest border. Figure 1 provides additional details.

Allegations against CBP employees for misconduct, corruption, or other issues can be reported through various mechanisms. CBP IA, in partnership with the Office of Professional Responsibility—an office within DHS’s U.S. Immigration and Customs Enforcement—accepts allegations through the Joint Intake Center (JIC). JIC is CBP’s central clearinghouse for receiving, processing, and tracking all allegations of misconduct involving personnel and contractors employed by CBP. Staffed jointly by CBP IA and the Office of Professional Responsibility, JIC is responsible for receiving, documenting, and routing misconduct allegations to the appropriate investigative entity for review to determine whether the allegation can be substantiated. CBP employees or the general public may report allegations to JIC’s hotline by e-mail or telephone, to local CBP IA field offices, the DHS Office of Inspector General, or the other law enforcement agencies. Anonymous allegations are also received, documented, and subjected to further inquiry.

The Majority of Arrests against CBP Employees Are Related to Misconduct; Majority of Allegations Occurred at Locations along the Southwest Border

According to CBP’s data, incidents of arrests of CBP employees from fiscal years 2005 through 2012 represent less than 1 percent of the entire CBP workforce per fiscal year. During this time period, 144 current or former CBP employees were arrested or indicted for corruption—the majority of which were stationed along the southwest border. In addition, there were 2,170 reported incidents of arrests for misconduct.Allegations against CBPOs and BPAs as a percentage of total on-board personnel remained relatively constant from fiscal years 2006 through 2011 and ranged from serious offenses such as facilitating drug smuggling across the border to administrative delinquencies such as losing an official badge. The majority of allegations made against OFO and USBP employees during this time period were against officers and agents stationed on the southwest U.S. border.

The Majority of Arrests of CBP Employees since Fiscal Year 2005 Are Related to Alleged Misconduct Activities

CBP data indicate that from fiscal year 2005 through fiscal year 2012, the majority of arrests since fiscal year 2005 are related to alleged misconduct activities. A total of 144 current or former CBP employees were arrested or indicted for corruption. In addition, there were 2,170 reported incidents of arrests for misconduct. In both cases, each represents less than 1 percent of the entire CBP workforce per fiscal year. Specifically, in fiscal year 2005, out of 42,409 CBP employees, 27 were arrested or indicted for corruption. In addition, during this time period, there were 190 reported incidents of arrests for misconduct. As of August 2012, when CBP’s workforce increased to 60,591, 11 CBP employees were arrested or indicted for corruption, and there were 336 reported incidents of arrests for misconduct. CBP IA defines delinquent activity as either corruption or misconduct. Corruption involves the misuse or abuse of the employee’s position, whereas misconduct may not necessarily involve delinquent behavior that is related to the execution of official duties. CBP further categorizes the delinquent behavior into the following categories: (1) non-mission-compromising misconduct, (2) mission-related misconduct, (3) corruption, and (4) mission-compromising corruption. The first category is the only one that is unrelated to the execution of the CBP employee’s official duties or authority, and the majority of the incidents of arrests for misconduct (2,153 out of 2,170) since fiscal year 2005 fall in this category. Examples include domestic violence and driving under the influence while off duty. Table 1 provides CBP IA’s definitions of the two types of delinquent activity and examples of each category.

About 65 southwest border. Our review of documentation on these cases indicates that 103 of the 144 cases were for mission-compromising corruption activities, which are the most severe offenses, such as drug or alien smuggling, bribery, and allowing illegal cargo into the United States. Forty-one of the 144 CBP employees arrested or indicted were charged with other corruption-related activities. According to CBP IA, this category is less severe than mission-compromising corruption and includes offenses such as the theft of government property and querying personal associates in a government database for purposes other than official business. Table 2 provides a breakdown of these arrests by fiscal year.

Table 3 outlines the number of incidents of arrests of CBP employees for misconduct for fiscal years 2005 through 2012.

Although the total number of corruption convictions (125) is less than 1 percent when compared with CBP’s workforce population by fiscal year, CBP officials stated that they are concerned about the negative impact employee corruption cases have on agencywide integrity. For example, the Acting Commissioner of CBP testified that no act of corruption within the agency can or will be tolerated and that acts of corruption compromise CBP’s ability to achieve its mission to secure America’s borders against all threats while facilitating and expediting legal travel and trade. In particular, there have been a number of cases in which individuals, known as infiltrators, pursued employment at CBP solely to engage in mission-compromising activity. For example, in 2007, a CBPO in El Paso, Texas, was arrested at her duty station at the Paso Del Norte Bridge for conspiracy to import marijuana into the United States from June 2003 to July 2007, and was later convicted and sentenced to 20 years in prison. OFO reported that she may have sought employment with CBP to facilitate drug smuggling. CBP officials view this case as an example of the potential impact of corruption—if the officer had succeeded in facilitating the importation of 5,000 pounds of marijuana per month, this would amount to a total of 240,000 pounds over 4 years with a retail value of $288 million dollars. In another case, a former BPA previously stationed in Comstock, Texas, was arrested in 2008 for conspiracy to possess, with intent to distribute, more than 1,000 kilograms of marijuana. The agent was convicted in 2009 and sentenced to 15 years in prison and ordered to pay a $10,000 fine. CBP is also concerned about employees who may not be infiltrators, but began engaging in corruption-related activities after joining the agency. For example, CBP IA officials stated that some employees may have experienced personal hardships after being hired, such as financial challenges, which made them vulnerable to accepting bribes to engage in corrupt activity. In addition, some employees arrested for corruption had no prior disciplinary actions at the time of their arrests.

Allegations against CBPOs and BPAs as a Percentage of Total Onboard Personnel Remained Relatively Constant from Fiscal Years 2006 through 2011

According to our analysis of CBP data, from fiscal years 2006 through 2011, a total of 32,290 allegations were made against CBP employees; 90 percent (29,204) were made against CBPOs and BPAs. CBP IA categorizes allegations of misconduct or corruption by varying levels of severity. For example, allegations may range from serious offenses such as facilitating drug smuggling across the border to administrative delinquencies such as losing a badge. CBP allegations of corruption or misconduct are sorted into differing classes depending on the severity of the allegation and whether there is potential for federal prosecution. As table 4 indicates, class 1 allegations comprise the more severe allegations that could lead to federal prosecution, such as drug smuggling or bribery, with classes 2, 3, and 4 representing decreasing levels of severity.

Information for management may include notifications such as reporting a lost badge or an arrest of an employee’s family member. CBP management will take this information into consideration but may determine that the action does not warrant referring the case for further disciplinary action.

Table 5 depicts the number of allegations against CBPOs and BPAs from fiscal years 2006 through 2011. Allegations made against OFO and BP employees as a percentage of the total OFO and USBP workforce remained constant from 12 percent to 14 percent over fiscal years 2006 to 2011.

Similar to the arrest data, of the total number of allegations made against OFO and USBP employees from fiscal year 2006 to fiscal year 2011— 29,204 total allegations—the majority of these allegations were made against officers and agents stationed on the southwest U.S. border. Specifically, there were approximately 19,905 total allegations against CBPOs and BPAs stationed on the southwest border—about 68 percent of total allegations. Approximately 57 percent of all CBPOs and BPAs are stationed along the southwest border. By comparison, during this time period, there were 9,299 allegations made against officers and agents across the rest of CBP’s ports of entry and sectors. According to a senior CBP IA official who is responsible for tracking and maintaining CBP allegations data, it is possible that the southwest border region received more allegations, in part, because CBP assigned more employees to the region, many of whom were new, relatively less experienced agents from the hiring increases from fiscal years 2006 through 2011, or were employees on detail to the southwest border region. During this same period, the number of officers and agents and BPAs along the southwest border increased from 15,792 to 24,057. In addition, in each fiscal year from 2006 through 2011, more allegations were made against USBP employees than OFO employees along the southwest border— allegations against BPAs were about 32 percent higher, on average, than those against CBPOs.

CBP Has Implemented Integrity-Related Controls, but Could Better Assess Screening Tools for Applicants and Incumbent Employees

CBP employs integrity-related controls to mitigate the risk of corruption and misconduct for both applicants and incumbent officers and agents, such as polygraph examinations and random drug testing, respectively. However, CBP does not maintain or track data on which screening tools provided the information that contributed to applicants being deemed unsuitable for hire, making it difficult for CBP to assess the relative effectiveness of these screening tools. In addition, an assessment of the feasibility of expanding the polygraph program to incumbent officers and agents, and consistent implementation of its quality assurance review program for background investigations and periodic reinvestigations, could strengthen CBP’s integrity-related controls. OFO and USBP have also implemented controls to help detect and prevent corruption and misconduct; however, additional actions could help improve the effectiveness of OFO’s integrity officers.

CBP Employs Controls to Mitigate the Risk of Hiring Potentially Corrupt Officers and Agents, but Does Not Track Data That Can Help Determine the Relative Effectiveness of Screening Tools

CBP has two key controls to screen applicants for CBPO and BPA positions during the hiring process—background investigations and polygraph examinations. Background investigations involve, among other things, a personal interview; a 10-year background check; and an examination of an applicant’s criminal, credit, and financial history, according to Office of Personnel Management (OPM) regulations. Polygraph examinations consist of a preinterview, the examination, and a postexamination interview. The Anti-Border Corruption Act of 2010 requires that, as of January 2013, all CBPO and BPA applicants receive polygraph examinations before they are hired. CBP IA officials stated that the agency met the mandated polygraph requirement in October 2012—90 days before the deadline.

PSD considers multiple factors, or a combination thereof, to determine whether an applicant is suitable for employment. PSD officials stated that suitability determinations are based on three adjudication phases: (1) after PSD verifies that each applicant’s forms are complete and conducts preliminary law enforcement database and credit checks, (2) after CAD reports the technical results of the polygraph examinations to PSD, and (3) after the completion of the background investigation. PSD is responsible for adjudicating the final polygraph examination results, as well as reviewing any other information that may be used in determining whether or not applicants are suitable for employment. If, after the final adjudication, there is no derogatory information affecting an applicant’s suitability, PSD forwards the final favorable adjudication decision to Human Resources Management, which completes the remainder of the required steps in the hiring process.

Regarding polygraph examinations, CAD has maintained data on the number of polygraph examinations that it administers and the technical results of those examinations since January 2008. CAD officials stated that an applicant technically fails the polygraph examination by receiving a “significant response” on the test or using countermeasures to deceive the test, which is an indicator of deception and results in PSD making a determination that an applicant is unsuitable for hire. Alternatively, an applicant can technically pass the polygraph examination, but admit to past criminal behavior (e.g., admitting to frequent and recent illegal narcotics usage) that would likely render the applicant unsuitable for CBP employment when PSD adjudicates a complete record of CAD’s polygraph examination and associated interviews. Table 6 provides our analysis of CAD’s data on the 11,149 polygraph examinations administered since 2008, and the technical results of those examinations.

In addition to the technical examination results, CAD maintains documentation on admissions that applicants reveal during the polygraph examination process. Applicants have admitted to a range of criminal activity from plans to gain employment with the agency in order to further illicit activities, such as drug smuggling to excessive illegal drug use. For example, one applicant admitted that his brother-in-law, a known Mexican drug smuggler, asked him to use employment with CBP to facilitate cocaine smuggling. Another applicant admitted to using marijuana 9,000 times, including the night before the polygraph examination; cocaine 30 to 40 times; hallucinogenic mushrooms 15 times; and ecstasy about 50 times. CBP IA officials stated that admissions such as these highlight the importance of the polygraph examination to help identify these types of behaviors in applicants before they are hired for CBP employment. CBP IA officials stated that the polygraph examination is the key investigative tool in the agency’s integrity program because it can help identify whether applicants have misled background investigators regarding previous criminal histories or misconduct issues.

PSD is responsible for maintaining data on its final suitability determinations—whether or not it determines that applicants are suitable for hire. However, CBP IA does not have a mechanism to track and maintain data on which of its screening tools (e.g., background information or polygraph examination) provided the information that PSD used to determine that applicants were not suitable for hire, making it difficult for CBP IA to assess the relative effectiveness of its various screening tools. For example, if 100 applicants technically pass a polygraph examination, but 60 of these applicants are ultimately found unsuitable for hire, CBP IA does not have data to indicate if the applicants were found unsuitable based on admissions during the polygraph examination, derogatory information collected by background investigators, a combination of this information, or on the basis of other screening tools. PSD officials stated that they do not have the data needed to assess the effectiveness of screening tools because of limitations in PSD’s information management system, the Integrated Security Management System (ISMS), which is not designed to collect data on the source of the information (e.g., background information, polygraph examination) and the results used to determine whether an applicant is deemed suitable for hire. CBP IA’s Assistant Commissioner and other senior staff stated that maintaining these data on an ongoing basis would be useful in managing CBP IA’s programs.

Standards for Internal Control in the Federal Government states that program managers need operational data to determine whether they are meeting their goals for accountability for effective and efficient use of resources. Moreover, the standards state that pertinent information should be identified, captured, and distributed in a form and time frame that permits managers to perform their duties efficiently. The standards also require that all transactions be clearly documented in a manner that is complete and accurate in order to be useful for managers and others involved in evaluating operations. which screening tools provide information that contributes to PSD determining that an applicant is not suitable for hire could better position CBP IA to gauge the effectiveness of each tool and the extent to which the tools are meeting their intended goals for screening applicants for hire.

GAO/AIMD-00-21.3.1.

CBP Has Tools for Screening Incumbent Officers and Agents

CBP has two key controls for incumbent employees—random drug testing and periodic reinvestigations—to ensure the continued integrity of the CBPOs and BPAs. CBP is required to conduct random drug tests on an annual basis for at least 10 percent of the employees in designated positions, including CBPOs and BPAs, to help ensure employees who hold positions in the area of law enforcement or public trust refrain from the use of illegal drugs while on or off duty. According to CBP data for fiscal years 2009 through 2011, more than 99 percent of the 15,565 random drug tests conducted on CBP employees were negative. CBP officials stated that actions against those with positive results ranged from voluntary resignation to removal. In September 2012, Human Resource Management officials told us that DHS was in the process of reviewing drug-free workplace programs across the department and that CBP was coordinating with DHS’s drug-free workforce program. Changes under consideration for DHS’s program include eliminating the 2-hour advance notice that employees currently receive before they are required to provide a urinalysis sample, which human resource officials stated could help reduce the possibility of CBP employees potentially engaging in efforts to dilute the results of the tests.

In addition, CBP policy states that all CBPOs and BPAs are subject to a reinvestigation every 5 years to ensure continued suitability for employment. control for monitoring incumbent officers and agents, particularly for those employees who were hired in the past without a polygraph examination.

CBP policies allows for reinvestigations to be initiated outside of the standard 5-year cycle. As of July 2012, CBP has not conducted any periodic reinvestigations outside of the normal cycle, according to CBP IA officials.

CBP IA officials stated that they conducted few periodic reinvestigations during fiscal years 2006 to 2010 because resources were focused on meeting mandated hiring goals. Thus, CBP IA accumulated a backlog of 15,197 periodic reinvestigations as of 2010. To help address this backlog, the Anti-Border Corruption Act of 2010 required CBP to initiate all outstanding periodic reinvestigations within 180 days of the enactment of the law, or July 3, 2011. As of September 2012, CBP IA had initiated 100 percent, and had completed 99 percent (15,027 of 15,197) of the outstanding reinvestigations from the backlog. According to CBP IA officials, 13,968 of the reinvestigations that were completed as of September 2012 have been adjudicated favorably, and CBP officials stated that they had referred three additional cases to the Office of Labor and Employee Relations for possible disciplinary action. CBP IA data indicate, however, that about 62 percent of the favorably adjudicated reinvestigations initially identified some type of issue, such as criminal or dishonest conduct or illegal drug use, which required further review during the adjudication process. According to CBP IA officials, PSD adjudicators mitigated these issues and determined that they did not warrant any referrals to labor and employee relations officials for disciplinary actions.

CBP Has Not Assessed the Feasibility of Expanding Its Polygraph Program to Incumbent Officers and Agents

CBP IA officials stated that they are considering implementing a polygraph requirement for incumbent employees; however, CBP has not yet assessed the feasibility of expanding the program beyond applicants. In May 2012, CBP’s Acting Deputy Commissioner testified that the agency is considering whether and how to subject incumbent officers and agents to polygraph examinations. CBP IA officials and supervisory CBPOs and BPAs that we interviewed at all four of the locations we visited expressed concerns about the suitability of the officers and agents hired during the surges because most of these officers and agents did not take a polygraph examination. CBP IA’s Assistant Commissioner also stated that he supports a periodic polygraph requirement for incumbent officers because of the breadth and volume of derogatory information that applicants have provided during the polygraph examinations. The Assistant Commissioner and other senior CBP officials stated that they have begun to consider various factors related to expanding polygraph examinations to incumbent officers and agents in CBP. However, CBP has not yet fully assessed the costs and benefits of implementing polygraph examinations on incumbent officers and agents, as well as other factors that may affect the agency’s efforts to expand the program. For example:

Costs. In September 2012, CBP IA officials told us that they had not fully examined the costs associated with different options for expanding the polygraph examination requirement to incumbent employees. To test 5 percent of current eligible law enforcement employees (about 45,000 officer and agents), for example, equates to 2,250 polygraph examinations annually, according to CBP IA. Testing 20 percent of eligible employees each year, by comparison, equates to 9,000 polygraph examinations annually. CBP IA preliminarily identified some costs based on the average cost per polygraph examination (about $800); however, it has not completed analyses of other costs associated with testing incumbent employees, including those associated with mission support specialists, adjudicators, and supervisors who would need to be hired and trained to conduct the examinations. In October 2012, CBP IA officials stated that there would be further costs associated with training polygraph examiners— approximately $250,000 per examiner. CBP has not determined the full costs associated with expanding polygraph examinations to incumbent employees to help assess the feasibility of various options for expansion.

Authority and ability to polygraph incumbents. According to OPM requirements, to conduct polygraph examinations on current employees, CBP would need to request and obtain approval from OPM. As of September 2012, CBP had not yet sought approval from OPM to conduct polygraph examinations on incumbent employees because CBP’s senior leadership had not completed internal discussions about how and when to seek this approval. In addition, CBP officials identified other factors that the agency has not yet assessed, which could affect the feasibility of conducting polygraph examinations on incumbent employees. These factors include the need to assess how the agency will use the results of incumbent employees’ polygraphs and whether these options are subject to negotiation with the labor unions that represent CBPOs and BPAs. For example, according to CBP officials, it might be necessary to negotiate with the unions as to what disciplinary action could be taken based on the possible outcomes of the examination, including the test results themselves and any admissions of illegal activity or misconduct made by the employee during the examination.

Frequency or number of polygraph examinations to be conducted. According to the CBP IA Assistant Commissioner, the agency has identified possible options for how frequently to implement polygraph examinations for incumbent employees or for what population to conduct the examinations. For example, possible options include conducting polygraph examinations on a random sample of incumbent employees each year (e.g., 5 percent or 20 percent of eligible employees each year), or conducting the examinations based on reasonable suspicion of finding derogatory information. CBP IA officials stated that testing incumbent employees on a random basis could have a deterrent effect by causing some employees to cease their corrupt behavior, and dissuading other employees from becoming involved in corrupt behavior. Although CBP has identified possible options for how frequently to implement polygraph examinations for incumbent employees or for what population to conduct the examinations, CBP officials stated that they have not assessed the feasibility of implementing these options, particularly in light of their relative costs and benefits.

Standard practices for project management call for the feasibility of programs to be considered early on. Moreover, standard practices for project management state that specific desired outcomes or results should be conceptualized, defined, and documented as part of a road map.

CBP has not fully assessed the feasibility of expanding the polygraph program to incumbent officers and agents, in accordance with standard practices for project management, including assessing all of the associated costs and benefits, options for how the agency will use the results of the examinations, and the trade-offs associated with testing incumbent officers and agents at various frequencies. In October 2012, the CBP IA Assistant Commissioner stated that the agency has begun to discuss options with senior agency officials for expanding its polygraph program. He and other senior CBP IA officials acknowledged that his office had not yet fully assessed the various factors that might affect the feasibility of expanding the polygraph program and agreed that such an assessment would be useful in discussions with CBP senior management. Assessing the feasibility of expanding periodic polygraphs early on in its planning efforts, consistent with standard practices, could help CBP determine how to best achieve its goal of strengthening integrity-related controls over incumbent CBPOs and BPAs.

CBP IA Could Benefit from Implementing Its Quality Assurance Program for Initial Background and Periodic Reinvestigations

A senior PSD official stated that PSD has not implemented a quality assurance program at the level desired because it has prioritized its resources in recent years to address hiring goals and the mandated requirements to clear the backlog of reinvestigations. PSD established a quality assurance program in 2008 to help ensure that proper policies and procedures are followed during the course of the preemployment background investigations and incumbent employee reinvestigations. As part of this program, PSD is to (1) review, on a monthly basis, no more than 5 percent of all completed investigations to ensure the quality and timeliness of the investigations and to identify any deficiencies in the investigation process, and (2) report the findings or deficiencies in a standardized checklist so that corrective action can be taken, if necessary. As of September 2012, PSD officials stated that they have not consistently completed the monthly checks, as required by the quality assurance program, because they have prioritized their resources to screen applicants to meet CBP’s hiring goals. PSD officials stated that they have performed some of the required checks since 2008. However, PSD officials could not provide data on how many checks were conducted or when the checks were conducted because they did not retain the results of the checks on the required checklists. In addition, CBP IA officials stated that they had performed 16 quality reviews on an ad hoc basis outside of the monthly checks from fiscal years 2008 through 2010. CBP IA documented the results of these ad hoc checks, which did not identify significant deficiencies according to officials.

Standards for Internal Control in the Federal Government provides guidance on the importance of evaluating the effectiveness of controls and ensuring that the findings of audits and other reviews are promptly resolved and evaluated within established time frames so that all actions that correct or otherwise resolve the matters have been brought to management’s attention. The standards also state that all transactions and other significant events need to be clearly documented, and the documentation should be readily available for examination. Senior CBP IA officials stated that a quality assurance program is an integral part of their overall applicant screening efforts, and they stated that it is critical for CBP IA to identify and leverage resources to ensure that the quality assurance program is fully implemented on a consistent basis. Without a quality review program that is implemented and documented on a consistent basis, it is difficult to determine the extent to which deficiencies, if any, exist in the investigation and adjudication process and whether individuals that are unsuitable for employment are attempting to find employment with CBP. As a result, it is difficult for CBP to provide reasonable assurance that cases have been investigated and adjudicated properly and that corruption risk to the agency is mitigated accordingly.

OFO and USBP Have Developed Integrity- Related Controls; OFO Could Benefit from Clarifying the Roles and Responsibilities of Its Integrity Officers

In addition to CBP’s screening tools for applicants and incumbent employees, OFO and USBP have developed controls to help mitigate the risk of potential CBPO and BPA corruption and misconduct (see table 7). For example, OFO has been able to use upgraded technology at ports of entry to help prevent and detect possible officer misconduct and to monitor officers’ activities while on duty. USBP established a policy that limits the use of portable electronic devices while on duty to mitigate the risks of agents potentially organizing illegal border crossings.

Senior USBP officials stated that its agents operate in an environment that does not lend itself to the types of technological controls, such as Red Flag, that OFO has implemented at the ports of entry, which are more confined and predictable environments than Border Patrol environments. For example, BPAs are required to patrol miles of terrain that may be inaccessible to radio coverage by supervisors at the sector offices. CBPOs operate in more controlled space at U.S. ports of entry as opposed to the open terrain across USBP sectors. Nevertheless, USBP officials stated that they are working with AMSCO and CBP IA to identify innovative ways that technology might be used to assist USBP in mitigating the risk of corruption along the border.

In addition, in 2009, OFO established the integrity officer position to provide an additional control within the individual field offices. As of August 2012, there were 19 integrity officers across OFO’s 20 field offices; there were 5 officers across the 4 field offices on the southwest border. Integrity officers monitor integrity-related controls, including the Red Flag system and video surveillance cameras. Integrity officers also perform data analyses and provide operational support to criminal and administrative investigations against OFO employees. However, CBP IA officials stated that OFO has not consistently coordinated the integrity officer program with CBP IA, which is the designated lead for all integrity- related matters within CBP. According to a CBP directive, entities within CBP, such as OFO, that are engaged in integrity-related activities must coordinate with CBP IA to ensure organizational awareness and prevent investigative conflicts. CBP IA officials stated that although they are aware of the Integrity Officer program, they expressed concerns that the roles and responsibilities of these officers may not be clearly articulated and thus could result in potential problems, such as jeopardizing ongoing investigations.

See Statement of David Aguilar, Acting Commissioner, U.S. Customs and Border Protection, before the Subcommittee on Government Organization, Efficiency, and Financial Management, Committee on Oversight and Government Reform, U.S. House of Representatives. Washington, D.C.: Aug. 1, 2012. responsibilities, including the definition of assisting with operational inquiries. For example, in our meetings with 4 of the integrity officers along the southwest border, we found that 3 defined their role to include active participation in investigations of allegations of misconduct and corruption against OFO employees. At one location we visited, the integrity officer stated that he had created an online social media profile under an assumed name to connect with CBP employees at his port of entry, one of whom was under investigation—an activity that the OFO Program Manager, senior OFO officials, and CBP IA officials acknowledged was beyond the scope of the intended role of the integrity officer position. Further, one integrity officer indicated that his role includes a right to “fully investigate” CBP employees, while another interpreted his role to be limited to conducting data analysis.

CBP IA officials stated that integrity officers are not authorized to conduct investigations nor are they trained to do so. Differences in integrity officers’ activities across field locations could be justified given the variances at each port of entry. CBP IA officials expressed concerns, however, that the integrity officers may be overstepping their roles by inserting themselves into ongoing investigations, which could potentially disrupt or jeopardize ongoing investigations because they could unknowingly compromise the independence of an investigation or interview. OFO’s Acting Assistant Commissioner and the integrity officer program manager acknowledged that it would be useful to further clarify integrity officers’ duties to avoid any conflicts with ongoing investigations and ensure that the officers were approaching their duties more consistently. Clear roles and responsibilities for integrity officers developed in consultation with key stakeholders such as CBP IA, and a mechanism that monitors the implementation of those roles and responsibilities, could help OFO ensure that the program is operating effectively and, in particular, in coordination with the appropriate stakeholders like CBP IA.

An Agencywide Strategy and Lessons Learned Analyses Could Help Guide CBP Integrity-Related Efforts

CBP has not developed a comprehensive integrity strategy to encompass all CBP components’ initiatives. Further, CBP has not completed some postcorruption analyses on employees convicted of corruption since October 2004, missing opportunities to gain lessons learned to enhance policies, procedures, and controls.

CBP Is Developing an Integrity Strategy, but Does Not Have Target Timelines for Its Completion and Implementation

CBP has not completed an integrity strategy that encompasses the activities of CBP components that have integrity initiatives under way, including CBP IA, OFO, and USBP, as called for in the CBP Fiscal Year 2009-2014 Strategic Plan. Specifically, CBP’s Strategic Plan states that it will deploy a comprehensive integrity strategy that integrates prevention, detection, and investigation. Further, a 2008 CBP directive states that CBP IA is responsible for developing and implementing CBP’s comprehensive integrity strategy to prevent, detect, and investigate all threats to the integrity of CBP. We have previously reported that developing effective strategies can help ensure successful implementation of agencywide undertakings where multiple entities are involved, such as CBP integrity-related efforts. Elements of an effective strategy include, among others, (1) identifying the purpose, scope, and particular problems and threats the strategy is directed toward; (2) establishing goals, subordinate objectives and activities, priorities, timelines, and performance measures; (3) defining costs, benefits, and resource and investment needs; and (4) delineating roles and responsibilities.

CBP convened the IPCC in 2011 as a forum to discuss integrity-related issues and ideas and to share best practices among the members. IPCC is responsible for facilitating integrity-related operations of individual offices within CBP as a deliberative body. In particular, IPCC was tasked with making recommendations to address the results of an integrity study conducted by the Homeland Security Studies and Analysis Institute. The IPCC is composed of representatives from CBP IA, OFO, USBP, Human Resources Management, and Labor and Employee Relations, among others. See Homeland Security Studies and Analysis Institute, U.S. Customs and Border Protection Workforce Integrity Study. Dec. 15, 2011. committees in selected sectors, including along the southwest border, to establish training and guidance to help BPAs and reinforce concepts such as professional behavior and ethical decision making. OFO established an Integrity Committee to review misconduct and corruption data related to OFO employees, identify potential trends, and develop integrity initiatives to address any concerns. Although CBP IA has a strategic implementation plan for its activities and officials told us that these integrity coordination committees have been useful as forums for sharing information about the components’ respective integrity-related initiatives, CBP has not yet developed and deployed an agencywide integrity strategy.

During the course of our review, CBP IA began drafting an integrity strategy for approval by the components and CBP’s senior management, in accordance with CBP’s Fiscal Year 2009-2014 Strategic Plan. CBP IA officials stated that a comprehensive strategy is important because it would help guide CBP integrity efforts and can, in turn, lead to specific objectives and activities, better allocation and management of resources, and clarification of roles and responsibilities. A 2011 workforce integrity study commissioned by CBP recommended that CBP develop a comprehensive integrity strategy and concluded that without such a strategy, there is potential for inconsistent efforts, conflicting roles and responsibilities, and unintended redundancies. However, CBP IA’s Assistant Commissioner stated that, as of September 2012, his office had not developed timelines for completing and implementing the agencywide integrity strategy and has not been able to finalize the draft, in accordance with the Fiscal Year 2009-2014 Strategic Plan. He indicated that that there has been significant cultural resistance among some CBP component entities in acknowledging CBP IA’s authority and responsibility for overseeing the implementation of all CBP integrity- related activities. Program management standards state that successful execution of any program includes developing plans that include a timeline for program deliverables. Without target timelines, it will be difficult for CBP to monitor progress made toward the development and implementation of an agencywide strategy. Further, it is too soon for us to determine if the final strategy will meet the key elements of an effective strategy that encompasses CBP-wide integrity stakeholders’ goals, milestones, performance measures, resource needs, and roles and responsibilities. A strategy that includes these elements could help better position CBP to provide oversight and coordination of integrity initiatives occurring across the agency.

CBP Has Not Yet Completed Analyses of Prior Cases of Corruption

CBP has not completed some analyses of some cases in which CBPOs and BPAs were convicted of corruption-related charges. Such analyses could provide CBP with information to better identify corruption or misconduct risks to the workforce or modify existing policies, procedures, and controls to better detect or prevent possible corrupt activities on the part of CBPOs and BPAs. In 2007, OFO directed relevant managers to complete postcorruption analysis reports for each employee convicted for corruption. In 2011, USBP began requiring that these reports be completed after the conviction of any USBP employee for corruption. The reports are to include information such as how the employee committed the corrupt activity, and provide, among other things, recommendations on how USBP and OFO could improve policies, procedures, and controls to prevent or detect similar corruption in the future. For example, according to an OFO Director, several reports stated that the use of personal cell phones helped facilitate and coordinate drug smuggling efforts. As a result of these analyses, OFO implemented a restriction on the use of personal cell phones while on duty.

As of October 2012, OFO has completed about 66 percent of the total postcorruption analysis reports on OFO employees convicted since October 2004 (47 of 71 total convictions). OFO’s Incident Management Division Director stated that OFO had not completed the remaining reports because some convictions occurred prior to the 2007 OFO directive or because the convictions had not been published on CBP IA’s internal website—a point that informs OFO when it has 30 days to complete the report. USBP has completed about 4 percent of postcorruption anlaysis reports on USBP employees convicted since October 2004 (2 of 45 total convictions). USBP was instructed to complete postcorruption analysis reports in August 2011, and USBP officials stated that the agency does not have plans to complete analyses for convictions before August 2011 because CBP IA is reviewing these cases as part of a study to analyze behavioral traits among corrupt employees. However, CBP IA’s study does not substitute for postcorruption analysis reports because for this study, CBP IA researchers are exploring the convicted employees’ thinking and behavior to gain insights into the motives behind the betrayal of trust, how the activity originated, and how they carried out the illegal activity. The postcorruption reports, however, may go beyond this type of analysis and also may aim to identify deficiencies in port or sector processes that may have fostered or permitted corruption and to produce recommendations specific to enhancing USBP policies, procedures, or controls. A USBP Deputy Chief acknowledged that completing the remaining reports could be beneficial to understanding any trends or patterns of behavior among BPAs convicted of corruption. In some cases, OFO and USBP officials stated that it may be difficult to complete postcorruption analysis reports for older convictions, as witnesses and other information on the corruption-related activities may no longer be available.

Standards for Internal Control in the Federal Government provides guidance on the importance of identifying and analyzing risks, and using that information to make decisions. These standards address various aspects of internal control that should be continuous, built-in components of organizational operations. One internal control standard, risk assessment, calls for identifying and analyzing risks that agencies face from internal and external sources and deciding what actions should be taken to manage these risks. The standards indicate that conditions governing risk continually change and periodic updates are required to ensure that risk information, such as vulnerabilities in the program, remains current and relevant. Information collected through periodic reviews, as well as daily operations, can inform the analysis and assessment of risk. Complete and timely information from postcorruption analysis reports of all convictions could assist USBP and OFO management in obtaining and sharing lessons learned to enhance integrity-related policies, procedures, and controls throughout CBP.

Conclusions

Data indicate that the overwhelming majority of CBP employees adhere to the agency’s integrity standards; however, a small minority have been convicted of engaging in corruption due, in part, to the increasing pressure from drug-trafficking and other transnational criminal organizations that are targeting CBPOs and BPAs, particularly along the southwest U.S. border. The Acting Commissioner of CBP testified that no act of corruption within the agency can or will be tolerated and that acts of corruption compromise CBP’s ability to achieve its mission to secure America’s borders against all threats while facilitating and expediting legal travel and trade. Strategic and continuous monitoring of operational vulnerabilities is important given the shifting tactics of drug-trafficking organizations seeking to infiltrate the agency. Therefore, CBP has taken steps to mitigate the risk of misconduct and corruption among incoming CBPOs and BPAs by implementing controls during the preemployment screening process. However, tracking and maintaining data on the results of its screening tools for applicants, a feasibility assessment for potential expansion of polygraph requirements, and a robust quality assurance program for background investigations and periodic reinvestigations that ensures reviews are consistently conducted and documented could better position CBP to mitigate risk of employee corruption. In addition, clear roles and responsibilities for OFO’s integrity officers developed in coordination with appropriate stakeholders such as CBP IA could help CBP ensure that the program is operating effectively. Moreover, establishing a target time frame for completing a comprehensive integrity strategy could help CBP ensure sufficient progress toward its development and implementation. In addition, completed, postcorruption analysis reports of former CBP employees who have been arrested for corruption could better position CBP to implement any lessons learned from these cases.

Recommendations for Executive Action

To enhance CBP’s efforts to mitigate the risk of corruption and misconduct among CBPOs and BPAs, we recommend that the CBP commissioner take the following seven actions: develop a mechanism to maintain and track data on the sources of information (e.g., background investigation or polygraph examination admissions) that PSD uses to determine what applicants are not suitable for hire to help CBP IA assess the effectiveness of its applicant screening tools; assess the feasibility of expanding the polygraph program to incumbent CBPOs and BPAs, including the associated costs and benefits, options for how the agency will use the results of the examinations, and the trade-offs associated with testing incumbent officers and agents at various frequencies; conduct quality assurance reviews of CBP IA’s adjudications of background investigations and periodic reinvestigations, as required in PSD’s quality assurance program; establish a process to fully document, as required, any deficiencies identified through PSD’s quality assurance reviews; develop detailed guidance within OFO on the roles and responsibilities for integrity officers, in consultation with appropriate stakeholders such as CBP IA; set target timelines for completing and implementing a comprehensive integrity strategy; and, complete OFO and USBP postcorruption analysis reports for all CBPOs and BPAs who have been convicted of corruption-related activities, to the extent that information is available.

Agency Comments and Our Evaluation

We provided a draft of this report to DHS for its review and comment. DHS provided written comments, which are reproduced in full in appendix II. DHS concurred with all seven recommendations and described actions under way or plans to address them. DHS also discussed concerns it had with periodically polygraphing incumbent law enforcement officers.

With regard to our first recommendation, DHS concurred and indicated that by March 31, 2013, CBP expects to collect data on the impact of the polygraph examination regarding the outcome of CBP applicant suitability adjudications and undertake steps to ensure data reliability across various CBP personnel security databases.

With regard to the second recommendation, while DHS concurred, it reported possible adverse impacts associated with periodically polygraphing incumbent law enforcement officers. Specifically, DHS noted that doing so could adversely affect CBP resources without additional resources to implement the requirement. While we understand DHS’s concerns, we did not recommend that CBP expand its polygraph program to incumbent employees; rather, we recommended that CBP assess the feasibility of expanding polygraph examinations to incumbent CBPOs and BPAs. Thus, concerns such as these could be considered in conducting its feasibility assessment. As we reported, assessing the feasibility of expanding periodic polygraphs early on in its planning efforts could help CBP determine how to best achieve its goal of strengthening integrity-related controls over incumbent CBPOs and BPAs. In addition, DHS noted that expanding the polygraph program to incumbent employees would be contingent on approval from OPM and may encounter resistance from unions representing CBP’s employees who may view it as a potential change to the conditions of their employment. As noted in the report, these are important factors CBP could consider in assessing the feasibility of expanding the polygraph program.

With regard to the other five recommendations, DHS concurred and indicated that CBP will work to strengthen its current quality assurance processes and develop a process to document deficiencies identified through quality reviews; develop detailed guidance on the duties, roles, and responsibilities of integrity officers; complete a comprehensive integrity strategy; and develop postcorruption analysis reports for any convictions that do not currently have such reports. DHS estimates that it will complete these steps by July 31, 2013. The actions that DHS has planned or under way should help address the intent of the recommendations. DHS also provided technical comments, which we incorporated as appropriate.

As agreed with your offices, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after its issue date. If you or your staff have any questions about this report, please contact me at (202) 512-8777 or gamblerr@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are listed in appendix III.

Appendix I: Scope and Methodology

To examine data on arrests of and allegations against U.S. Customs and Border Protection (CBP) employees accused of corruption or misconduct issues, we analyzed data on 144 CBP employees arrested or indicted from fiscal year 2005 through fiscal year 2012 for corruption activities. We also analyzed data on allegations of corruption and misconduct against CBP employees from fiscal years 2006 through 2011. For both arrest and allegation data, these are the time periods for which the most complete data were available. In particular, we analyzed variations in both sets of data across CBP components and geographic region. To assess the reliability of these data, we (1) performed electronic data testing and looked for obvious errors in accuracy and completeness, and (2) interviewed agency officials knowledgeable about these data to determine the processes in place to ensure their accuracy. We determined that the data were sufficiently reliable for the purposes of this report. In addition, we interviewed officials from CBP Office of Internal Affairs (IA), Office of Field Operations (OFO), United States Border Patrol (USBP), and CBP’s Human Resource Management, and Labor and Employee Relations, to gain their perspectives on these data on CBP employee corruption and misconduct.

To evaluate CBP’s implementation of integrity-related controls to prevent and detect employee misconduct and corruption, we analyzed relevant laws such as the Anti-Corruption Border Act of 2010, which requires, by January 2013, that all CBP officer (CBPO) and U.S. Border Patrol Agent (BPA) applicants receive polygraph examinations before they are hired.

We also reviewed documentation on CBP’s preemployment screening practices and their results—including background investigations and polygraph examinations—and relevant data and documentation on the random drug testing program and the periodic reinvestigation process for incumbent CBPOs and BPAs. In particular, we evaluated CBP IA data on the technical results of polygraph examinations from January 2008 through August 2012. To assess the reliability of the technical results of the polygraph data, we (1) performed electronic data testing and looked for obvious errors in accuracy and completeness, and (2) interviewed agency officials knowledgeable about these data to determine the processes in place to ensure their accuracy. We determined that these data were sufficiently reliable for the purposes of this report. In addition, we examined CBP IA’s quality assurance program for its Personnel Security Division (PSD), including interviewing PSD officials who are responsible for deciding whether an applicant or incumbent officer or agent is suitable for hire or continued employment. We also analyzed Human Resource Management’s random drug testing data for fiscal years 2009 through 2011, the time period for which the most complete data were available, and examined the results of those mandated periodic reinvestigations that CBP IA had completed as of September 2012. To assess the reliability of these data, we conducted tests for accuracy and interviewed officials responsible for managing the drug testing and reinvestigation programs and found that the data were sufficiently reliable for the purposes of our report.

We compared CBP’s integrity-related controls, as applicable, against recommended controls in Standards for Internal Control in the Federal Government and standard practices from the Project Management Institute. Furthermore, we conducted site visits to four locations along the southwest U.S. border to observe the implementation of various integrity-related controls and obtain perspectives from CBP IA, OFO, and USBP officials at these locations on the implementation of integrity- related controls. We conducted these visits in El Paso, Texas; Laredo, Texas; San Diego, California; and, Tucson, Arizona. We selected these locations on the basis of a variety of factors, including the colocation of CBP IA with OFO offices and USBP sectors along the southwest border and the number of allegations against or arrests of CBP employees for corruption or misconduct. Because we selected a nonprobability sample of sites, the information we obtained from these interviews and visits cannot be generalized to all OFO, USBP, and CBP IA field locations.

However, observations obtained from these visits provided us with a greater understanding of CBP’s integrity-related initiatives.

To evaluate CBP’s integrity strategy, including how the agency incorporates lessons learned from prior misconduct and corruption cases, we reviewed documentation on integrity initiatives from CBP IA, OFO, and USBP, as well as from the Integrity Integrated Planning and Coordination Committee (IPCC), which CBP convened in 2011 as a forum to discuss integrity-related issues and ideas and to share standard practices among the members. In particular, we analyzed these documents against the requirements set forth in the CBP Fiscal Year 2009-2014 Strategic Plan. In addition, we analyzed all available postcorruption analyses reports, which identify deficiencies that may have enabled CBP employees to engage in corruption-related activities, against OFO and USBP program requirements. We interviewed officials in Washington, D.C., from the Office of Policy and Planning, CBP IA, USBP, OFO, and IPCC, as well as officials during our site visits, regarding CBP’s integrity strategy and the extent to which CBP is using lessons learned from prior corruption and misconduct cases to guide changes in policies and procedures, as appropriate.

We conducted this performance audit from December 2011 to December 2012, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comments from the Department of Homeland Security

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Kathryn Bernet, Assistant Director; David Alexander; Nanette J. Barton; Frances Cook; Wendy Dye; David Greyer; Jackson Hufnagle; Wendy Johnson; Otis S. Martin; and Linda Miller made significant contributions to the work.