Special Counsel Carolyn Lerner

Special Counsel Carolyn Lerner House subcommittee on Oversight and Reform

Special Counsel Skeptical DHS Will Confront Overtime Abuses

Customs and border agency vowed to tackle problem five years ago, says Carolyn Lerner.

Special Counsel Carolyn Lerner on Tuesday expressed skepticism over Homeland Security’s efforts to address improper use of overtime among employees, a practice that has cost the department millions of dollars over the years.

“I took some measure of comfort that they admitted they had a problem, and at least on paper said they were taking some measure of responsibility for it,” Lerner said during a Senate Homeland Security and Governmental Affairs subcommittee hearing on government oversight, when Ranking Member Rob Portman, R-Ohio, asked her about the issue. “The problem is, they said that five years ago.”

OSC has estimated the alleged abuses in the six cases are costing taxpayers nearly $9 million annually.

The Office of Special Counsel in late October submitted a report to Congress and President Obama detailing one of six whistleblower cases currently before the agency claiming widespread misuse of a pay authority known as Administratively Uncontrollable Overtime among customs and border security employees. Lerner on Tuesday said the department’s plan for dealing with the problem “mirrors the same steps they were going to take five years ago” with a few exceptions, including educating employees about the proper use of overtime through a video. In 2008, OSC investigated and referred to the department whistleblower allegations about overtime abuse in the Lynden, Wash., Border Patrol office -- abuses DHS confirmed at the time.

Lerner’s Oct. 31 letter on the latest allegations referred to Customs and Border Protection’s commitment to address similar concerns in 2008. “The lack of progress in implementing plans first outlined five years ago raises questions about the agency’s willingness or ability to confront this important problem,” she wrote, reiterating that view during Tuesday’s hearing. She called Homeland Security’s latest response “a little bare bones.” OSC is responsible for investigating allegations from government whistleblowers.

CBP has said it will conduct an audit and work on creating simple and standard guidance on Administratively Controlled Overtime, which is supposed to be used only when an employee’s hours cannot be scheduled in advance because of “substantial amounts of irregular, unscheduled overtime work,” according to the Office of Personnel Management.

CBP cited "an array of obstacles" to implementing an agency-wide AUO directive, Lerner said in her Oct. 31 letter, "including collective bargaining obligations and the need for updated regulations from the Office of Personnel Management."

Still, in response to Portman’s questions, Lerner, who called CBP’s report “unreasonable,” in her Oct. 31 letter, told the panel on Tuesday that the department’s response was “on par, if not better than some of the [department] responses we get,” pointing out that agency officials confirmed, rather than denied, the allegations. Lerner said the department isn’t required to tell OSC whether officials have taken disciplinary action or not.

Tuesday’s exchange highlighted the hearing’s theme: What kind of oversight are the government’s watchdogs performing, and do they have the resources to do it?

Lerner appeared on a panel with four other witnesses, including the inspectors general of the Small Business Administration and the Justice Department. SBA’s Peggy Gustafson and Justice’s Michael Horowitz told lawmakers living under continuing resolutions and sequestration has made managing resources and people difficult. “I can’t hire at this point,” said Horowitz in response to questions from the panel. “As a manager, I need to understand what my budget is, frankly, to be able to hire.”

Gustafson, Horowitz and Lerner, however, emphasized the commitment and perseverance of their staff; Lerner gave specific examples of how her 110-person workforce is “performing more efficiently and effectively than at any point in OSC’s 35-year history,” despite its fiscal challenges. “It is a testament to the hard work of our dedicated career staff, who have endured furloughs and increased caseloads while managing to improve productivity and outcomes in all measures,” she said.

The House Oversight and Government Reform Committee is holding a hearing on the alleged abuse of overtime at DHS and proposed reforms on Wednesday. Lerner will be back on Capitol Hill on Dec. 10 to testify specifically on the whistleblowers’ allegations before the Senate Homeland Security and Governmental Affairs panel. A bipartisan group of lawmakers has proposed a legislative fix to curb abuses.

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