Former U.S. Border Patrol Agent reported overtime pay abuse 30 years ago, concerns continue today

DHS overtime not properly documented, certified

Whistleblowers inside the Department of Homeland Security have come forward to describe chronic falsification of employee time cards within the federal agency.  One said his attempts to address the problem 30 years ago went unanswered.

"I turned myself in,” John Randolph, a former agent with U.S. Customs and Border Protection, said in an exclusive interview with The E.W. Scripps Company.  "It was a can of worms 30 years ago. You can imagine what it is now."

The “can of worms” Randolph describes is Administratively Uncontrollable Overtime -- an overtime pay program within the Department of Homeland Security.

In a report submitted to the White House last October, the federal Office of Special Counsel estimates misuse of overtime pay in six DHS offices, including Customs and Border Protection, cost taxpayers $8.7 million a year.

Randolph thinks that number is a lot bigger.

"Even at my safest, most generous estimations I think it’s over 100 million dollars a year,” he said.

Since the October report, the Office of Special Counsel has forwarded six additional cases to DHS for investigation, bringing the total number of offices involved to 12. In a hearing, Carolyn Lerner, special counsel of the OSC, described the $8.7 million as a “conservative estimate of the cost of overtime abuse” and the whistleblowers estimate the cost nationwide is likely to reach tens of millions of dollars annually.

Randolph joined the Border Patrol in 1979. After five years on the job, five years of lying about working overtime hours, he didn’t work, Randolph turned himself in.

“Border Patrol agents can and do abuse this system by lying about the amount of overtime that they work,” Randolph wrote in a letter to Border Patrol leadership in 1984.

After receiving the letter, federal investigators interviewed Randolph. It was determined he did misuse the overtime pay system. He was suspended for 30 days and had to pay $5,951.68 back to the government through payroll deductions, according to a letter from the Border Patrol.

Officially Randolph participated in “theft of property and falsification of time and attendance reports,” according to a letter from the Border Patrol. But, he was never charged with a crime.

"They fined me and they gave me some time off,” he said. “But if it was as egregious as they said it was, why didn't that patrol agent march me right down to the U.S. Attorney's office and prosecute me?”

In the letter from the Border Patrol, he was warned, future misconduct could result in “more severe disciplinary action,” due to the “seriousness” of the situation.

Systematic problem
Randolph spent 18 years at Border Patrol stations in California, eight in El Cajon and 10 in San Diego. He then went on to become an agent with U.S. Immigration and Customs Enforcement.

"I saw enough to make me question the whole system,” Randolph said.  "I'm not going to keep my mouth shut about it.  I didn't then and I'm not now."

There are more than 20,000 Border Patrol agents and more than 200,000 people working inside DHS.

Click here to view the Border Patrol staffing infographic.

Thirty years have passed since Randolph stepped forward and alerted the government about the AUO abuse taking place within CBP.

Attempts to reach CBP and DHS by phone and email were made by reporters at The E.W. Scripps Company. No response to the questions has been received.

While time has passed, recent reports and allegations point to a system-wide problem, one that has essentially withstood the test of time, indoctrinated to new agents from day one, according to Randolph.

"I think it’s in the culture of the Border Patrol,” he said. “If you don't work it, you still pencil it in."

This practice can sometimes add up to 25 percent of a paycheck, and according to Randolph and other whistleblowers, has become routine over the last generation. Sometimes it is even used as a perk when trying to recruit new employees.

In a May 2013 letter to the OSC, Jose Rafael Ducos-Bello, CBP chief program manager, wrote, employees “choose to pickpocket Uncle Sam of an estimated $200 million this fiscal year alone.” Bello is a 24-year veteran of government employment.

AUO is only meant to compensate workers for unanticipated, urgent work. It is similar to overtime pay some law enforcement agents may acquire. Situations like having to continue with the chase of a suspect or finishing up with an arrest.

But, as highlighted in the letter from Lerner, at least six cases of AUO pay abuse were reported to her office -- costing taxpayers an estimated $8.7 million annually.

Click here to view the Border Patrol budget infographic.

“Such abuse of overtime pay is a violation of the public trust and a gross waste of scarce government funds,” Lerner said in the letter to the White House.

“We are probably, technically violating the letter of the law,” Shawn Moran, Vice President and Spokesperson for the National Border Patrol Council, said. “But, we are accomplishing the mission within the very bad framework we have to work with.” The National Border Patrol Council is a union that represents Border Patrol agents.

Moran said Congress and CBP leaders look the other way because there isn’t an alternative to pay Border Patrol agents for working overtime hours. He also said, he believes the AUO pay program is saving the government money and other options would be more expensive.

He describes a pay scale that is out of date and needs to be revamped to better suit the work the Border Patrol agents are doing. “It’s not that the work is not allowed,” Moran said. “We need a modified system.”

Four months ago, DHS suspended AUO for certain employees working in some agency headquarters, full-time training employees and employees who have improperly received the overtime payments in the past. Last fall, DHS stopped paying overtime to clerical and office workers.

Moran said a typical Border Patrol agent will work five 10 hour days with the last two hours of a shift being reserved as AUO hours.

“It has been going on since before the 1970’s,” he said. “Border Patrol agents have been told they will work this recurring overtime. The ones not working AUO are the exception to the rule.”

Other whistleblowers
In the October letter, Lerner outlined reported cases of AUO abuse:

  • In a CBP training facility in Georgia, one whistleblower claims $5 million was paid in a year for unworked overtime. Some of the pay went to 50 managers.
  • In an ICE headquarters office in Washington, D.C., a whistleblower said everyone in the office claimed 10 hours of overtime, every week.
  • Two whistleblowers at the CBP San Ysidro border station claim they see their colleagues write down an extra two hours of overtime that were never worked.
  • In Laredo, TX, AUO is being used for routine shift change activities.
  • Situation Room employees in Washington, D.C., claim to have worked two hours of overtime following their assigned shift 89 percent of the time.

Lerner describes most of the claimed overtime work by Situation Room employees as "administrative in nature, often consisting of Headquarters or local taskings" and does not qualify for AUO. Lerner said according to the whistleblower, sometimes the employees were “surfing the internet, watching sports and entertainment channels or taking care of personal matters.”

Look at the map below to see all of the locations of the Border Patrol stations or click here to see a complete listing.

 

 

The CBP Office of Internal Affairs opened up its own investigation into the allegations of overtime abuse by Situation Room employees in Washington D.C. The allegations were confirmed.

According to an April 2013 letter to the OSC, numerous employees “regularly abuse the use of AUO” and the “Director and Assistant Director authorize and abet the improper use of AUO.” The investigation also revealed AUO was not properly documented or certified as required by regulation and policy.

That is not the first time, the internal affairs department at DHS and CBP has verified improper use of AUO overtime. A 2008 investigation came to the same conclusion: “the investigation revealed that AUO is not properly documented or certified as required by regulation and agency policy.”

In 2008, the reported abuse of AUO involved a CBP stations in Lynden and Blaine, Wash.

"We're sworn federal officers,” Randolph said. “We swear we're going to tell the truth, we're going to uphold the law and we go back to our station and lie about the overtime we're working.  That doesn't work for me."

Fixing the problem
No one, including Randolph, has been charged with a crime and no lawsuits have been filed. Through federal freedom of information laws, Scripps reporters have been trying to determine how much money has been illegally paid to DHS and CBP employees over the last 30 years. These requests were submitted six months ago and reporters are still waiting for a response.

Click here to view the infographic on on a mobile device.

During a hearing on the overtime abuse issues by the Senate Federal Workforce subcommittee in late January, Sen. Jon Tester, D-Mont. said,  "I think you can be assured that we're going to be watching this issue very closely and holding the leadership at DHS very much accountable."

At the time of the hearing, DHS acting Secretary Rand Beers had already ordered a department-wide review of how AUO is used. Just before the hearing, a decision was made to suspend AUO for certain DHS employees.

“I’ve been very troubled by the reports of overtime abuse at the Department of Homeland Security,” Sen. Rob Portman, R-Ohio, said in an email to Scripps reporters.  “I continue to demand that the department take steps to eliminate the abuse and prevent it from happening again.”

During the January hearing, Ron Vitiello, Deputy Chief with the Border Patrol, said "the Border Patrol takes its responsibility to be a good steward of taxpayer dollars very seriously. Misuse of government funds is not tolerated."

At the same hearing, Lerner, with the OSC, said “we're really pleased at the progress but there still hasn't been a directive issued to stop it. This is not a difficult issue … it’s against their own financial self interest for them to hold people accountable as supervisors because they're getting it as well."

AUO pay is available to federal employees across various agencies and each agency has some options on how to regulate it.

For some workers in CBP the suspension of the AUO program means a 25 percent pay cut, according to Moran. So far, the Office of Special Counsel has not received any reports of misusing AUO from offices outside of DHS.

Senators Tester and John McCain, R-Ariz., introduced a bill in November which would give Border Patrol agents three pay schedule options.

The bill would eliminate AUO and would allow Border Patrol agents to choose to work 80, 90 or 100 hours in a two-week period. Any hours worked between 80 and the number of hours they choose, would be paid to the employees as time and a half. Anything beyond the agreed number of hours would be paid to them as compensatory time off, Moran said.

The bill was also introduced in the House by Rep. Jason Chaffetx, R-Utah. The National Border Patrol Council has endorsed the proposal. Tester and McCain estimate the bill would save taxpayers $1 billion over the next decade.

“We believe it (the bill) is a solution,” Moran said. “And with the situation with AUO being abused in some areas, it just gives it more urgency.”

This bill was assigned to a congressional committee on Nov. 13, 2013, which will consider it before possibly sending it on to the House or Senate as a whole.

Moran said, he has been told to expect it to take one congressional term before it could pass, but he is confident it will move forward. “We hoped it would go to markup in March, but that didn’t happen,” he said. “We’re hoping to see some more movement.”

In a statement, a spokesperson from the Homeland Security and Governmental Affairs Committee said DHS is working to address the AUO abuse concerns:

“Chairman (Tom) Carper (D-Delaware) find(s) the reports that Administratively Uncontrollable Overtime may have been inappropriately used at the Department of Homeland Security concerning. He believes that taxpayer dollars must be spent more wisely, particularly as our nation continues to grapple with fiscal challenges. The Department and its components are working to examine and address these concerns. That being said, finding a solution to this problem is a shared responsibility between the Administration and Congress. Chairman Carper will continue to work with his colleagues on finding a legislative solution to this problem that recognizes the hard work done by our frontline personnel at the border while safeguarding the taxpayer’s hard earned dollars at the Department of Homeland Security and throughout the federal government.”

Randolph said, the AUO abuse is widespread and he thinks a complete systematic overhaul of the program is the only way to stop it.

"Theoretically everybody that's in that system has lied about it at some point,” he said. “It's no wonder that they do not take it on and tell the truth about it. Until they take care of the systemic lying, nothing is going to fix this."
 

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