Transcripts For CSPAN3 Key Capitol Hill Hearings 20140611

The problems by i. Itself. We have responsibilities to do what we can. Hillary clintons latest book is called hard choices about her time of secretary of state. Friday live on cspan 2. Watch booktv coverage of secretary clinton. Followed saturday morning with a book signing in arlington, virginia. Both events reairing saturday night starting at 8 30. Booktv television for serious readers. Every weekend on cspan 2. The Iowa State Republican Party holding their convention in des moines. U. S. Customs and Border Protections officials testify next on Border Security and the current pay structure for agents. Homeland Security Committee hears from the labor union. Chaired by senator tom carper of delaware. This hearing is an hour and 45 e minute minutes. Welcome, everyone. A pretty short n statement here and turn it to dr. Coburn and senator tester, d if you would like to make a an statement. Senator kuhn is tied up in transportation . Okay. All right. Is he going to come in at all . Do you expect him at all . Tn esseno. Fair enough. My thanks to our colleagues and our witnesses for working with our staffs to put this hearing y together fairly quickly. The purpose, as you know, of this hearing is to exam the act merit of s 1691 the border aget payment act of 2014 introduced b by senatorad mccain the bill woo make badly needed reforms which is currently too nt to complicated and difficult to w manage. Before we get into the bill, i g want to the talk about what is happening currently along our borders. Overd the past few years weve seen a surge in unauthorized migration from Central America,e which is nearing record highs. And unprecedented number of unao people we aremp apprehending a e the border are a unaccompanied a children. Some as young as 10 years of age. The laws require that the children be treated differently than other myerre grants. Ices a they must bend transferred to Tc Department of health and Human Services and there are strict rules about their care. Task f secretary last weekor announcede hes creating an inner Agency Task Force and devoting. Since i became chairman of the e committee some 18 months ago, cn visited the southernd border of mexico and arizona and texasth a number of indications. Ive seen firsthand the crowdeda conditions a the the tollla stations in the rio grand valley and visited mexico and hope to spend time in hhonduras. What happens along the border ig only a symptom of the problem. W its not the underlying cause. Ng the hearing will focus on how we can better address the symptoms. The bill were examining today will save, we believe, we hope, taxpayers anmoney. Hope flay good deal of it. And increase our ability to il patrol and secure our borders. What ive seen it shows the bill would add 1400 agents to the border. Thats a lot. Givn the challenges on the border which have w been be a underscored by recent events. Moving the bill serves to be a s no brainer. I fully sport moving forward with theant bill as soon as possible. While wet need to treat the op tropical stormle symptoms. We cant stop there. Ix based on what ive seen in my trips to so the cause they are a lack of economic opportunity. Bad guys go south and end up inr the three central countries. Ed a theyre creating may heim. Nearly one ago the Senate Passed bipartisan Immigration Reform e measure that addresses many of the root causes of undocumented immigration. While the bill is imperfect. Its a significant improvement otherop the status quo and provides our nation with an to important opportunity. It grows our nation by 1 trillion. In order to become law, we neede our colleagues in the house to a act. Do a better job of helping Central American countries improve their prospect dhoez young people and not so young by helping provided them with the jobs that are secure communities and a future so they stay and build their ow. Countries instead of trying to get to ours. E on june 19th ill be convening a round table to multilateral banks as well as private institutions to discuss howt we continue to improve the prospects of young people and not so young people in the Central American countries. I urge and invite our colleagues in the committee to join us for this round table. Dr. Coburn, please. To first of all, thank you, mr. T chairman. Thanks to senator tester and senator mccain as well as they h senator portman. E that they held an important hearing on this in january. Im the one that asked for the i hearing because two points ii would make. S one,pa my goal is not take hav anything away from our boarder patrol agents. We have, i think about 900 or o that aul is no longer authorizea for. Nd the goal should be to adequate way for the risk and effort they put in. G in t but im really concerned about t what were doing here in terms of setting up a system that could become government wide and the question i ask as both accountant and former Business Manager is if in fact we need to have about 28,000 above or we 29,000 above a gs 12 maxed out the way were going to do this. Why wouldnt we change the baseh pay . Why wouldnt we just change the base pay system rather than having this overtime system . The other questions that i have associated with what were doing is things change. And what were doing is were m talking about putting a Payment System into statute that guarantees a certain amount of overtime every pay period that is not part of contractual obligations. This is statute. Fac so im a little concerned about that as well. Risk if, in fact, the border more met difficult l acquiring greater rk and expertise, were going somewhat limited by how weve done this. Im looking forward to asking the questions to try to get settled in my mind. Co how do we compensate our Border Patrol agents at the level they have been being compensated and make sure theyre skuecure in t future. I dont want to take anybodys pay away. Thats not our intent. Our intent is make sure it doesnt go away. The other point i would make is there are a lot of positions within the Border Patrol that dont have to do the write up ay the end of the day. Ve dont have to travel back from a position assignment, were including those in this that shouldnt have an aul payment. In other words, their job shouldnt require it. The characteristics of the mix is important to me as well. W t so what toild do is get answers to critical questions today. I have a statement that has written for the record and m not again, my hat i want to fix this. Im notmy trying to stop it froi getting fixed. Of my understanding is very limites number of people noon longer ha aul as a comparison of the totad hork force. I want to make sureus we fix it right. We also fix it in the way that the house is going to aside to so we solve the problem. I appreciate really senator stio tester ak we essence on and pledge my support to get the Problem Solved when i get my questions answered. Tester. Ir good to see you. Thank you, chairman, rankinge member coburn. I think i can answer your to ans questions wenow. I think it would be better leftu to the expert panel to answer the questions about things are e changing. Because youre right. Beca things change. Thats why were here today is things have changed. Senator mccain i introduced the legislation a little over a year ago, and we did have a hearing back in january. Since our initial introduction, weve worked closely with the cbp, Border Patrol union, department of Homeland Security and others to make the bill stronger. We. Worked together something that is fairly uncommon in the senate these days. Itk it is cosponsored by ayotte and convening bill is in the house e sponsored byp a host of others s both democrats and republicans. The bill is supported by both at the cbp and the Border Patrol union, which represents 16,500 s agents in the field. T it saves money. And it creates more stability for ot Border Agents an their family and increases manpower along the so ier so the security is increased and the agents are better equipped to dot jobs that are very important to all of us. A reform of the Border Patrol 0r pay system is long overdue. The operation leaves from 40 years ago are different from the criminal obligations we have seen today. We have waited long enough. We need to move forward with this bill because it ensures stability for our Border Patrol agents and makes sure that our borders are properly manned. In the end, i appreciate the opportunity to have a full Committee Hearing on this bill. I can tell you that as i look at this bill, it increases enforcement, it saves money, and i think it makes it allows for our borders to be common on both north and southern pp borders. With that, i appreciate the opportunity to hear from our witnesses and be able to ask them questions about this important issue, and hopefully been able to get this bill out of this committee and off the floor of the senate and over to the house. Thank you, mr. Chairman. You l bet. Thank you very much, senator tester. Let me take a minute to welcome our panel. Responsible for the daily operation Border Patrol pl routinely assists in planning and nationwide enforcement and nationwide operations. Deputy chief vitiello is one of the contributors to the u. S. Epm custom anden Border Protection d the creation of the department of Homeland Security. Is that true . [ inaudible ] okay. Good. Thank you. Good to see you. Second witness is brandon judd. A he has more than 15 years of experience as Border Patrol agent. Serves as president as nationalr Border Patrol council representing 17,000 agents and b support staff. He spent much of his career on the southwest border and Central California and tucson, arizona sector. In the past hes been stationed as a Field Training officer and canine officers in naco, rder p arizona. From 2001 to 2002 as an instructor at the Border Patrol academy. Welcome. Mr. Judd, nice to see you. Next witness is paul the Deputy Assistant commissioner of the office of internal affairs for u. S. Customs and Border Protection. A post hes held since 2012. E i understand mr. Hendrick beca our witness this morning. This morning due to changes announced by the commissioner today. Not much warning but thank you for joining us. S has g we appreciate mr. Hendricks serving as a witness given the Extensive Knowledge of the issue were going discuss today. He joined the Custom Service in 1986, is that right as a special agent. Has been with the office of tic. Internal Affairs Since 2007. Thank you for joining on a shor notice. Final witness is adam miles. Hes the director of policy and Congressional Affairs at the oin u. S. G office of special counci. Prior to joining, he was on ther staff of the House Committee and oversight reform. Ted we thank you for your service. We thank you for your service and testimony today. Minu if you want to give us your testimony roughly five minutes. N thats fine. If you went a little over. Thats okay. If you go way over well have to reign you in. Y dont we look forward to hearing you. Thank you for joining us. Thank you, chairman, Ranking Member, distinguished members oe the committee. R thank you for the opportunity to appear before you today to f address the need for Border Patrol agent pay reform. Requir we look forward to finding on solutions with you. They require properly paying our Border Security personnel and pay system. Our application of overtime er uncontrollable overtime needs stretches back man oy years. Thisting authorities no longer meet thee needs of a modern that Border Patrol. The Border Patrol agent pay reform act would replace it with a system that and maximizes agent capability for critical Law Enforcement and Border Security responsibility. If enacted it would ensure itsg scheduled to continue work and meet Mission Requirements beyonde the eighth hour of the shift while providing predibltble rotations. Re they would receive compensationr for any work over 8 hours per day and remain eligible for scheduled overtime when n to i emergenciesnc occur or special mission sets require it. In addition to increasing the capacity by over 2. 5 million hour it is would reduce overall costs. It would eliminate fair labor t standard act pay compensation for most agent assignments. Which total 10 a 5 million in d 2013. Based on the cost estimate, it u would save 38 to 76 million ut annually. It has a business practice in Leadership Development requirement that relies onen agents rotating into and out of headquarters assignment. This maintains up to date field. Experience in the positions. Itke o prepares leaders as the advance like other federal Law Enforcement agencies it is e fil portable pay for the employees that cycle through. Schedul the cost to train and maintain g an agent is considerable and scheduling overtime is more Cost Effective than getting the equivalent number of how hours o via agents. Ings. They provide strict tlesh hold i which will ensure cost saving t and mission capability. Without relief legislatively omd effectness would suffer. Morale is like to take a downward return. We command the commitment to e modernizing the pay structure and proposing to administrate a cost efficient system that pao meet the needs of a 21 st on century Border Patrol. We look forward to continuing to work with congress on the endeavor. Chairman carper, Ranking Membern coburn, members of the committee, i lack forward to this opportunity and answering your questions. Okay. Thank you. Please proceed. Senator, chairman. On behalf of the Border Patrol t agents that are represented. I would like to thank you for s9 having the hearing today to discuss s 1691. Would i would like to thank you for introducing the important t, i legislation. Instead of reading a prepared statement, ive given that to m you last thursday. T i would like to speak with you. Gem looking forward to more answering your questions than te giving a prepared statement that you already have. But there are a couple of things i would like key issues that i would like to point out. D the first issue is were no uggn longer dealing with mom and pop organizations on the border. We are dealing with sophisticated criminal cartels. Theyng control all traffic thato happening that comes into the United States and that goes intn mexico. They also control the illegal activity that happens on the northern border and the coastal border. Approximately a year ago, all ur Border Patrol agents were to notified that their hours for two week pay period would be cut from 100 plus to approximately 95. Since that time, weve seen almost an immediate increase of smuggling across the border. An in fact, on the map up here, not only are we seeing an increase in the rgb sector. We know about that tidal wave se that is happening. We have seen an increase in important corridors like el ionl paso, texas, san diego, california. These were considered operationally controlled areas. They have increased in arrests s 15 the last year since weve cut the hours by nearly 15 . Weve also seen, senator tester, in your neck of the woods, in er montana, weve seen an increase in arrest since the hours were cut by nearly 50 percent. Thats a huge increase. We have seen an increase on the coastal border in miami, florida. Weve seen an increase by almost 30 on the coastal border. These cartels know what we do, how we do it, and when we do ite they know when were vulnerable and right now due to the hours that have been cut, we are vulnerable. 50 in montana. Thats huge. Dress the second point i would like td address is the retention. In senator mcccains neck of th woods, the busiest station in the tucson sector, in the than y nation, i believe it currently seizesseen more drugs than any Border Patrol station in the nation. Weve seen a 5 weve seen 5t of the work force leave in the last year due to the number of a hours that havet been cut and the pay reduction that were ng experiencing. We also have another 15 at thio station alone that have pendingn applications in for other 20 agencies. We cant afford to lose 20 of the station especially a statiou that is so important to the tucson sector. On but thats what is happening ou under the economic climate. The last point that i would like to make, i would like to read rr this statement. Four years ago, when i came into the im sorry back in 1997 when i came intored the Border Patrol the recruitment that i was offered was 25 administrative overtime for theo rest of my career. Thats what we were told we were going to get. Thats now been cut. We no longer have that. And theres two reasons. Roac budgetary issues and legal issues. We approached congress four years ago, and we tried to get thet powers to amend the laws tt allow us to continue to do whati we need to do to control the in border. Unfortunately, because its an expensive system, we couldnt get any traction. Plan because that have, we have worked diligently with the agency to come up with a plan that will satisfy all co participating parties. It will satisfy the taxpayers in a huge cost savings. B it will satisfy the agency as it will give the number of hours needed on the border to secure the border and satisfy the d Border Patrol agencys as we wilc have a consistent and constant paycheck that we know what it is year to year. I want to make it clear that no Border Patrol agent is happy about the prospect of losing 6400 per year. We recently made another push tn keep that. But we were, again,nd oom unsuccessful. Were sacrificing a lot, but ih thee end it will prove to be a boom for Border Security, the public, and the agency, and the agencies whom i represent. Ort it is unvery, very rare that congress has the opportunity to consider a piece of legislation that saves money and enhances oe the agencys capability. Ward t thats exactly what it does. I look forward to answering your questions. Thank you. Thank you for your testimony. Mr. Hendrick, please proceed. Chairman carper, Ranking Member coburn, senator tester. Its a privilege to appear here to discuss the ongoing review of Border Patrol. Specifically those use bid the Border Patrol. Properly paying our border ral patrol security personnel and appropriately managing our pay systems are essential to the mission. The application of overtime, specifically auo, the primary compensation system used by the Border Patrol stretches back many years. Established more than 40 years t ago, auo is a payment mechanism that allows for the compensation of certain employees for irregular, unscheduled, but oxia necessary overtime. Approximately 77 percent of th auoin pay to dhs goes to employs of cvp including more than 0,00e Border Patrol agents. In order to be eligible, an employee must be in a position which the hours of duty cannot s beta controlled administrativel and which requires substantial amount of irregular or occasional overtime work. Cbp takes seriously the responsibility to ensure the rol proper use of taxpayer funds. While many front line officers and agencies require work hour flexibility, off through the use of auo misuse of the funds is not tolerated. Within dhs components allegations of misconduct raised by employees are typically provided to and handled by component andjunc internal affa or the dhs office of inspector i general. Ifhe merited, employees found hc engagedip in misconduct are e subject to disciplinary action. Cbps office of internal affair conducted a series of investigative inquiries ington regardi regarding internals, Affairs Field offices in washington, d. C. ,at houston, texas, san die, california, and seattle, washington conducted related investigations at specific Border Patrol sector headquarters, stations, training entities, and the cbp laints commissioners situation room. The office of special council te received complaints that overtime hours were not being ur worked, allegations if proven oi couldd institute criminal op investigationslo did not substantiate any allegations s t that employees w had received compensation for hours that wern not worked. The investigation, did however, substantiatuate aspect of the allegations. The question whether auo was th. Appropriate mechanism for in specific overtime compensation. A in short, the investigations wh determined that workit was conducted and importantly even r where auo was not the proper eo overtimeye mechanism, cbp had ay obligation and they had an entitlement to be appropriatelyk compensated for the overtime hours worked. Dhs and cbp have taken steps tou address the arsituation. On january 27th, secretary johnson issued a memo directing component leadership to take tei immediate action to suspend auo her certain category employees on interim basis. As a result, approximately 600 cbp headquarters, personnel, time trainers and employees found to misused auo and completed investigations were suspended from receiving it. After an additional review on may 23rd, deputy secretary s toa issued a memo developing comprehensive agency plan within 30 days to address the auo compliance issues. The component will also work deo with thep dhs management e directorate to develop the Department Wide direct of formalizing the effort and new m reforms. Theend directive will include requirements for independent audit ofte auo records and mandt disciplinary measures who violate the policies in the future. Including supervisors and managers who permit employees to misuse auo. Until such time is cbp can address all of the compliance issues, cbp leadership has directed additional sbirm measures such as comp hennive position review to limit the ush of auo where the available le. Evidence suggests its use is or impermissible. Chairman carper, Ranking Member coburn, senator tester, thank you for the opportunity to testify here today. I look forward to answering your questions. Thank you. Thank you for showing on short notice and your testimony. The next and final witness is adam. Please proceed. Chairman carper, Ranking Member coburn, and senator tester. Thank you very much for inviting me to testify today on behalf o the United States office of g special counsel. Im pleased to have the opportunity to discuss the case and ongoing work to address wide speed misuse of overtime er payments to dhs employees. I want tosi acknowledge quicklyh thei overtime team many of whom who are sitting behind me. Their work helped to identify and address over 37 million inl annual misuse of overtime pay. He the october 31st, communicatione to congress andrn the president outlined long standing concern about systemic misuse of uncontrollable overtime or auo. This is an issue first addressed si 2007. The communication in october of 2013 prompted significant debate on the legitimacy and legality of payments to dhs employees, w a. Ingful r encouraging the discussion with the goal of rooting out waste and achieving meaningful reform is at the heart of the mission. As stated in the october 31 st c letter, abusive overtime pay is a violation of the public trust and a gross waste of scarce government funds. He its incumbent upon dhs to tak steps to curb the abuse. Its up to administration and congress to develop a revised pay system that ensures fair compensation for employees legitimately working overtime. Su since october of 2013,bc and inr particular in response to the subCommittee Hearing in januaryr of 2014, dhs has taken steps to place better controls on auo t c use. It includes desert fieing some of the positions where employeek should not be collecting the s t payments. While at stake in its taken many years and more needs to be done, were encouraged by the steps dhs is taking. Ion congddition, they told senator testers subcommittee in wa january, were pleased that lo congress is helping cbp to find ways to solve the long standing problem including through os legislative reform. It does not have a position on the Border Patrol pay reform ac ofw 2013, our update on pendingh cases will vidicon tent for the committee as it legislation. In particular i want to comparet andh contrast two recent report prepared by dioia and set the re legal and factual frame wok forr the esdiscussion. Rfeiture these were in response to whistle blower disclosure at the Asset Forfeiture office in san diego, california, and north wh station in already ray dough, ts texas. The whistle blowers in the case and in 14 others that came to ea ose separately from all around the country had basically the identical disclosure. That Border Patrol agents or b i. C. E. Uenforcement officers claimed two hours of auo each day. But the overtime work are unlawful. They dont meet the requirements for auo. Age reports prepared by oia exbstantiated the core allegations. The reports confirmed that ip agents in these location s latin basically extend their regular e shifts by two hours every day routinely. Thats in violation of auo rules. They require unpredictable or irregular or compelling reasons to stay on duty. E in addition to the across the t board substantiate yags of the misuse, there are key the differences in the reports worto going through. These are based on the duties of the agents in those lo cases. I want to start by start by addressing the Border Patrol agents in texas. Or the report noted that the agento claimed auo in order to completa the post shift work necessary to travel back and forth from border assignment to the station. They call it routine post shift activities. The agents that were interviewed by oia indicated that the post u shift activity simply cannot bea completed in eight hours. H Border Patrol managers insisted in the report that employing 10 hour shifts is the most Cost Effective shift to securing the border. Curren even if it means misusing it asr currently used. As Congress Considers shif legislative proposalt to addree the misuse, it may want to on consider the argument in support of the 10hour shift and the unique demands on agents in areas like texas. Use at the report on san diego, prlifornia, in a similar report addressing auo abuse at the Training Facility in georgia ro present differentad issues. They illustrate simply how broadly auo misuse extends le within cbp. For example, the report states that some Border Patrol agents e in san diego work as paralegals. The Border Patrol agents h assigned to paralegal duties edh work is scheduled 10 hour shiftj and claim two hours of auo daily just like agents in the field. The report notes that Border Patrol agents in the paralegal e section have the same duties as nonBorder Patrol agents in the section referred to as civilians. For example, the paralegal Border Patrol agents they send out notices on seized property a and draft response but basicallo in an officer setting. The nonBorder Patrol agents with the same duty are not eligible for auo and do not work 10hour shifts yet they sit side by side with the Border Patrol agents that are working the 10hour shift. As Congress Considers pay r bord reform, it may want to consider whether and what extend it should cover Border Patrol o agentsn assigned to paralegal o other office rules where nonBorder Patrol agents have the same duties but not eligible for auo. In the samede issue is present ithin instructors at the glen cove, georgia training academy. I summarize it in the written statement. I hope the information is useful and pleased to answer your questions. Thank you very much for having f me. Thank you. Thank you very much for your testimony. U thanks to all of you. A couple of cameras here, i presume this is being broadcastt oner cspan. Some people watching this around the country later tonight or tomorrow and theyre going to want what are they talking about . And im going start offth i k our staff i said who among the four witnesses can explain this so someone watching on television somebody who is om maybe not even here on the committee somebody might stumble into the room understand what is the problem were trying to fix. Ym what is it . Dont use acronyms. Use regular language. Ob and just explain. What are we trying to fix . What is the problem were tryg to fix . On whe were trying to get ourselve in a situation where Border Patrol agentspabl are sufficien ready and capable and authorized in whatever format to engage ine post shift activities. A so all agents are scheduled for in at hours a day. And if you were on a factory to floor and your boss came in at the end of the shift and said ii need do you stay. Someone is not coming for the me acxt shift. They would ask you to stay and perform that same activity for o subsequent eight hours, and in b most factorye settings that wouo be double time. That could be considered overtime. The government isnt different in the sense it requirest peopl to stay on their shift or to do things at the end of the shift o that prepare the rest of the team to be better informed. There needs to be an overlap and exchange of information. The government calls it overtime. In the current configuration its called administrative uncontrolled overtime. E its more complex as it relates to the overtime. Nts the statute allows for individual agents to assess whaf Mission Requirements are in essence, oem in selfdeploy against the work in front of them. T its a good thing back in the o day when it was it allowed agents to flex to the work even though their shift might have been over. The other good thing it does is allow for people not to watch a the clock. If theres work in front of them that is necessary for the mission, they can stop on and dt it. Legislation propose is has continue the practice but covert all the work post shift. Whether it is chasing a group orthe arresting people or preserving n the chain of custody for evidence or informing the next e shift are things that are in administrative setting that be m prepare theor next team to be me capable in the shift, i think its important to recognize that in the setting both auo and he contemplated in the legislationt its stray time. The compensation for the first hour of the shift and the 10th hour of the shift in the configuration would be the p sa rate of pay. All right. What consumers have been you can answer it if you want or someone else better prepared. Bu that would be fine. But the concerns about abuse. How th e Current System has bee abused or rewarded people who shouldnt be rewarded in the t matte matter. So concerns have been raised. Talk us about the concerns. Ai well ask is e what has the department tried to do about it on their own. And talk with us about the legislation. What are the concerns aboutl abuses . The cbp witnesses are in a d better position to discuss the i changeds circumstances and why t is that this overtime authority is being misused. W but in general, you know, er decades ago when auo was first developed, the idea was that ths border was big and there wereny a lot of agencies. Res if somebody needed to stay aftet hours to arrest someone or follow a lead, they were able tr do that and didnt have to rs ad report back to headquarters. They didnt have to call up the boss to ask if they can stay on the job. T grown the situation has changed. Quit there are more agents, and the border hasnt grown but technology has been developed quite a bit. So the way in which the border s is being guarded has changed significantly. Mu again, talking about Law Enforcement issues. Rout its more regular. Agents its more routine. Ti its more predictablees the way agents are being told to fulfily their duties. Ha so the Legal Framework, the ys statutory tramwork that allows for the Compensation Authority says it has to be unpredictabl. When you look at the reports that have come into ose and 16 s whistle blowers have told us is that basicallyu the way that au is being used is the exact opposite of how it was intended. Its routine, its daily, its o two hours a day. Edicta and, you know, in contrast to theo rules that require bl irregular, unpredictable. Bein theres a core legal problem with the way that auo is being used. We have secondary allegations that wer e addressed by cbp testimony that said people are staying on the clock just to aro fulfill those hours. So they can work a 10 hour day but theyre not doing any work. Y pe theop allegations to date have o been substantiated. That basically people are goofing off. Theyre surfing the internet an during the extra two hours and not doing any Law Enforcement a work. Thats beetn a concern. I its been one that we havent been able to pin down. On thats the secondary concern that is going on here. O okay. Tat we next question is what can the Av Department do to address the abuses to make sure that we have retreat treating our border o patrol officers fairly. Resources we need on the borderd what can the department do . Ue what have they tried to do re mentselves to address the issues or concerns . I think previously paul mentioned that the secretarys memo of january 27th, which spend at auo in specific t categories prior to that and since then. Cbp, the department and others have looked at position by t positionh review to try to discriminate which of the job l categories specifically the Border Patrol, in our instance,d are still eligible given the so rubric for auo and which are rwa not. 28 fo and so that suspension went forward january 28th for those discreet categories. Al trai and the position by position review additional training has been authorized and deployed tol the field. Ent me we need to put ourselves in a place based on the subsequent e memo of may 23rd from the deputy secretary. Put ourselves in a place to the actual use and the correct use of auo even in the field where its ser understood that the field is the biggest user of auo but there are other problems with the waya weve beent documenting the use of it. In the other categories that are referenced in these allegations and the findings of the investigations there has been this overall generalzation of ca how auo is used and authorized. We have gotten ourselves in a place where it was used in the training environment. It was used a the the headquarter environment, sometimes is unpredictable. More often than not in the current interpretation, it is in a sense work that can be scheduled. Were getting smarter about how we teach ourselves that and he Going Forward well have better documentation about the work r that is being done whether its irregular or otherwise. So the work is still there in each of the environments both in the field and the administrative and training regularments. But were going to use Different Levels of types of compensation and in either case in both environments we want to document more specifically. I have a number of other questions. Ill telegraph some of those now. They include how the legislation that senators tester and mccainr crafted. How would it address the and ar concerns . Why is it fair to folks in the l Border Patrol and taxpayers . Are there any unintended idea consequences . And t the idea that were tos that legislation would save a anywhere from 25 to 50 million a year. Thats a lot of money. And at the same time, put another 10 to 1200 border patro officers on the border. We want to find out how it works. Doct dr. Coburn. Thank you. Would you say again what you said in your Opening Statement. When you were reported recruited that you, in fact, were told that you would guaranteed overtime . Yes. There were 19 and that was what year . Ific back in 1997. Okay. And i dont remember what the specific announcement that was on the website was, but there were we do job recruitment. We send recruiters out to t t Different College campus and different areas, and yes, at that time we were told we woulds earn 25 auo. And i understand thats the expectations. Im not critical of that. Im wanting to get it in the record. Certainly. You said you need to reform the post shift activities. What about jobs that dont haves post shift activities . E at auo. Ere so i think were talking about where the suspensions are right now. The headquarters and the training environment. It is a normal course of business at the academys and m office that people regularly have assignment that carry them over an eighthour shift and past the eighth hour of the n shift. Ill give you some specific ll examples. Over the weekend, i was on h we several Conference Calls da s dg with the situation which we were moving individual and processed illegal aliens from south texas to points west. Uc mainlys el paso and specificall tucson sector. And so arranging for the flights that was being coordinated in interagency, not just by me and my team. Arranging for the flight and the destination location so it was t sufficiently prepared and specic staffed by Border Patrol agents and the interagency. And giving the specific instructions to make sure that the people were f i understand that. The im just saying what is yourm testimony then is that all the departments all the management, all the Training Facilities need everybody that works in the management or the Training Facility have at least two hours of overtime all the time. I think they regularly exceed the shift that theyre assigned for the specific purposes of th preparing for the classroom work. Ere inain, this work we did over the weekend we were managing over incidents at the same time that required cross sector coordination in my team. What can you imagine whath about other arease mi of the fel government . What about the military . Theyre doing that stuff all the time, arent that any. They are. What about the Fire Department ifda. To me its incomprehensible that somebody in a Training Facility needs to be working an extra twa hours a dayv to meet the the requirements of the Training Facility. R says we have poor management or a structured it right. It may require a different structure. What im saying the academy e curriculum is an eight hour day. Time to prepare for the intake of the students. How long have they been instructors . It depends. Its an individual kind of wo assign hundreds of people. He when were doing the surge there was over 1,000 instructors at the academy. R they stay for rotations of three to five, sometimes longer. Suff i think the portability comment in my Opening Statement was about having people who have sufficiently spent time in the field and recognize the as challengei that supervisors struggle with on a daytoday basis. Its good and desirable and necessary for our business practice to develop those envi people. Make your bestroake instructor. People successful in the environment those make the best Staff Officers i have at the headquarters because they recognize the challenge in the field when we send a question down range when we show a requirement downth rangee the n people who arece sending and t receiving the information have sufficient experience to know what it means. They can fill in the blanks. They can push the information back or across to me with a level of expertise. Thats a desirable Business Model for us. Okay. He so even the administrative ex assistants in the Training Facilities would need to have two extra hours and even the fa janitors in the Training Facility . No. My experience my point is when you ask thee American Public about people in the administrative officers i getting guaranteed two hours a day and all of them have jobs. Im with you. I would rather go back to the federal labor portion of this e and pay them or increase the number so we adequately reflect it. I just find works in management at border et patrol and everybody that works in the Training Facilities at b Border Patrol have a need to d have 20 more 25 more time added to get their job done, and that, to me, says were not maaffed correctly, one, or were managed improperly. Well, i think that the staffing at the in the Academy Locations is adequate for the mission at hand. A at the headquarters in my environment, the staff that i manage, we have a very light footprint. There are 200 officer core if you bring somebody in to train, they know how to train or you wouldnt have brought them r in to train. And to sit here and make the point that they got to have two extra hours at the end of the n day to prepare for tomorrow in terms of training when theyre not consuming the whole eight hours during the training anywam just doesnt make sense. It doesnt pass the smell test e to me. Again, i dont want any cut in pay. I want this stuff restored. Of wi my question is, is the assumptions under which were doing all this dont pass musteu for common sense. Your testimony is that everybody at the Border Patrol needs an ta extra two hours a day to get their job done, and thats whether theyre on the border o theyre not, and im not sure yt even with your statement that you can justify it. R mr. Miles, how many allegations of auo abuse at cpb has your ff office received . 16 at 16 different locations dating back to 2007. T i and what percentage of thoseb cases did a whistleblower ut allege not only that overtime was misbilled, but that overtima was not being worked by some agents whether they left early or were doing nonwork activities like watching tv, surfing the internet, or hanging out. Some variation of that disclosure was made in eight of those cases. Rk have you been satisfied with cpbs reports concluding they can not substantiate allegations that agents were billing hours they did not actually work . Not give you a direct yes or no but weve been very satisfied with w i dont want to get that going. Thg ill withdraw that question. E in some of the allegations rtim substantiated by cpb involve cases where cpb agents were working alongside cpb officers or civilians who were not entitled to overtime pay. You talked about that. Rights. In didnt the cpb agents have sn the same job as those who were not cpb agents . Go yes. Thats why i think the framework has been helpful for this for conversation. Er patro we can go into more detail about the Training Facility and fok example, the Border Patrol agents who testified they were in the instructor position said they needed ten hours a day in f thder to get the work done. Sorry for the acronym, chairman carpenter, but as customs and y Border Protection officer cbpo t who is not eligible for overtim but is in the same instructor position, they routinely testify that they can get the work done within eight hours thats my point. Thats my point. To your knowledge, has management ever tried to stop them from working past eight hours a day . Im not aware of any. Mr. Hamrick, describe for me your investigation of the osg tt referrals in terms of those people who were not working. How did you go about the investigation to substantiate or to not substantiate those claims . The office of internal g affairs conducted six separate investigations regarding and ea allegations of auo misuse by cbr employees. A in each of those investigationsl our internal Affairs Agents collected all the relevant documentary evidence that was oc available. Employ we conducted interviews with alr the relevant employees, interviewed complainants where the complainants were ses identified, interviewed all w available witnesses as well as employees who were alleged to be misusing the auo compensation system. Urveilla documented those investigative e steps. In at least one case conducted. Surveillance in the field. Describe that. Awa our agents were actually were in the field watching employeese at were the employees aware . Me no, no, covert surveillance,k sir. Watching the employees to see what time they reported to work, what time they left work, and then comparing those activitiesd with the hours that were documented. E th okay. Once our investigations were complete, all the investigative activities were fully documented. The investigative reports went through a series of management s reviews within the office of ofc internal affairs both at the maeld office level as well as at headquarters. Na once our internal Affairs Managers were satisfied that the investigations were adequate ano lemplete, the investigative reports were subject to a second level of review at the office of chief counsel at cbp and once that level of review was complete, the reports were offio forwarded through the leadership to the office of special counsel. Okay. T but the employees in general were aware that auo was a hot topic. Sir this had been in the press. Yes, sir. Yeah. So basically observing agents at work you determined that Everything Else that the whistleblower said, other than eligibility, wasnt accurate, in most instances. In each of the six investigations that we conducted regarding allegations of auo misuse, what we confirmed were the hours claimed were being worked. We also confirmed that those hours that were worked were not properly compensated under the auo provisions and that another overtime compensation mechanism should have been used. Okay. Im way over time. Senator tester, sorry to take. John, youre on. Thats perfectly all right. Ill just start out a little bit talking about the benefits of the bill and then well get into some meat in a second. I think all of us can agree this is an antiquated pay system set up 40 years ago that doesnt meet the needs today. I think the Border Patrol has come to us asking for some orde reforms. I think i think its appropriate that wr listen to their work that theyre doing in the field. Ive went through border stations several times, but i have to tell you ive never packed a gun on a northern andc border and face what you guys face putting your lives on the f line every day. But yet coming to us in support of the pay cut, and well get into that in a second. I would just say that one thingv that this bill does, and it doey many, many things, is it gives stability to the hours that they need. And i think that stability in hours is very, very important when you have folks up there. The last thing you need to be thinking about is when the shift dees off. But at any rate, i would ask you, deputy chief vitiello, has the cpb supported this legislation . Yes, sir. T this how about you, mr. Judd . Is your organization supportive . Yes, sir. For both judd and vitiello, do you believe this legislation increased the Border Patrols i operational capacity and its effectiveness . It will. I dont believe it will. I know it will. Okay. Will it help or hurt recruitment and retention of Border Patrol agents . I think it will help. Of bor it will help. De does it provide more certainty for the agents and their families . Both of you. Agree. A it does. Absolutely. And were probably going to get into cost savings in a vingh minute, but does your group ands your agency believe that this saves money . It does. T the key provision of eliminating flsa for overtime work as the workforce is now entitled would save us considerably. Okay. I want to talk about training for just a little bit. Mr. Vitiello, who do you use for training . Theres a variety of assignments at the academy, buti some of the instructors are, inn fact, Border Patrol agents thatt teach operational aspects of thn work in the academy setting. Okay. He a and you said these are eighthour sessions . The curriculum is eight hours plus lunch, et cetera. Okay. One thing that i would really like to point out is that if i a northern border and somebody asks me to become a trainer and by the way i applaud the fact you guys are using Border Patrol agents to train with n theres no way im going to take a reduction in pay to come here, and i think, furthermore, if, i fact, if, in fact, youre usings agents, that solves a problem that i have with a lot of the agencies around here that ly hav actually have people in training positions that dont know whats going on out in the field. Youre using folks that know and whats going on in the field to train the folks that are going to be out in the fieldwh. That is correct . Ng correct. Ield we use lawyers to teach the laww we use pt instructors to teach t physical techniques. We use Border Patrol agents who have driven in the field and know how to operate our vehicleo and systems, et cetera, and then the whole range of operational techniques are taught by agents as well. Whole r okay. Ationa senator, may i yes. Enator sure. I taught at the academy. I would have never went to the academy if i was going to lose 25 of my pay. Ph wouldnt have happened. Okay. Upre currently in this day and age using i hate to even bring this up but unmanned u aircraft and drones to secure our borders, and weve been su successful using technology to h fight against terrorism. Y why the question is, with this age o of technology, why do we need more agents . Go ahead. Senator, the technology is fantastic, but the technology h doesnt arrest anybody. When im dealing with groups ofr illegal aliens or drug smugglers, im dealing with anywhere between 20 to 40 persons, and those drones cannoc put hands on those individuals s to arrest them. Th normally when im dealing with these groups its me and one m other person. So the drones do a phenomenal job of spotting the groups, but now i have to get to the groupsr and i have to actually arrest them. Those drones cant do that. Acta thats why we have to have the manpower to effectuate the tha marests. Okay. Np mr. Miles, i believe in your testimony you said that the hate research bore out that five r tenhour shifts correct me ie im wrong, five tenhour shiftse is optimal . We received a report back, and, again, a very helpful a report from oia discussing the t san diego sector. He the managers there im sorryd laredo north. I la ray do, texas. They do an extension discussion on the costs and benefit of doing a tenhour shift versus at eighthour shift, and i think m thats a legitimate area for congress to consider. Weat the report confirms is that the tenhour shift is currently being compensated with auo and thats not lawful. We have to figure out if ten lu hours really is the best way in that s set and the reason its not lawful is because when auo was set up, it was set up for conditions that were at unpredictable, correct . Correct. Havee we if it had been set up and said were going to make it predictable use it whenever youu unpr, it would have been fine. But the fact is he unpredictability. Right. Thats why we wanted to flag rsd that because its worth understanding from the cbp witnesses why ten hours is the most costeffective approach to securing the border. Rs okay. Imr. Je mr. Judd, when discussing pay reform, and were discussing this bill, were talking about how much money its going to a save, why would your folks be in favor of it . Because the alternative is fr worse. What weve found is again, mr. Miles has testified that what were doing is not actual auo. The mr. Hamrick has testified that whethours are being worked, but its being improperly compensated. If it was properly compensated youd actually be paying me mora money than what auo pays. Id love to keep auo. In fact, if i could convince you to amend the auo laws so i could keep auo and fsla, i would do that, but, unfortunately, we sir have this budgetary constraint where nobody is willing to consider timeandahalf overtime system and, therefore, were asking you for this. Fine. Were going to have several rounds, right . So my time is up. I was about halfway through my questioning when i yielded tq dr. Coburn. I want to come back and pick up where i left off. And the question the next question, weve talked about this a little bit, but i want to talk about it some more. The question i would ask, start with you, mr. Miles, and come from my right to my left. Ets g but what concerns have been raised about lets go back. Au what concerns were raised by tht original policy thats been in place for a number of years. What concerns have been raised and how does this legislation address those concerns . Ncernsur mike. Yeah. . Use your so i think ill three separate concerns. One, that auo is unlawful. Because its being used s routinely instead of for nlawful unpredictable work. Two, a lot of whistleblowers oe were concerned that auo is being used in an Office Setting or an administrative setting and by managers in those types of settings. And, three, which we have those discussed in some detail, that c auo is being claimed for hours t that arent worked at all or while people are doing various things. Hat so the legislation would clearli address the first issue on n whether or not the hours that are being worked that can be scheduled in advance, it wouldc provide a Legal Framework for compensating the individuals who are working those hours. Ho all right. Mr. Hamrick, same question, m please. I would echo mr. Miles. On the legislation will allow cbp l to properly compensate employee for their overtime work, which they are entitled to, while alleviating the issues that we are currently experiencing withn the limitations on auo and what type of overtime hours can be worked under auo and how those can be paid. Paid. Okay. Mr. Judd . Simply, this would make what we do legal. I dont know how better to stat. It. Y this all right. Uld mr. Vitiello. I agree. Specifi there are specific Mission Requirements that in a system like whats contemplated in the legislation would allow for us a to do, and then if and avoid some of the transactions that occur if you were on a feeforservice issue. You would change what the expectations are of both managers and individual agents d and they would always be watching the clock versus what we can accomplish now which is c to continue the work until the end of the shift. Okay. Im just going to lay out an exm example. Lets say instead of senator coburn and senator and myself and senator tester being senators, lets just say were r Border Patrol officers and well say that dr. Coburn is over california along the border cs there, maybe im in tucson sector and mr. Tester is in south texas. Thd theres not much going on along the california border and after eight hours mr. Coburn is done. Im in a part of the border i where theres a lot going on, ae and we have maybe 20 people that im tracking across the border a and trying to catch up with. Im working well beyond my shift, maybe working an extra four hours to track them down and hold them until somebody can come and relieve me. And mr. Tester is actually going the other way down into across the border and trying to apprehend somebody who slipped sock across the border, and he boes up an extra two or three hours. Why i think most people who a are familiar with overtime issues know that people work in similar kinds of jobs dont bs always have to work as long every day. So common sense my dad used to say, just use some common sense. I think somebody using some ones common sense would say somebodys is working dr. Coburn over here officer coburn over here is working extra four hours to track down and hold 20 people, or i am and hes not, whatever, why dont we just pay people along those lines . I think i know the answer, but id like to hear you say it doe anyway. Ople if you would, id like to take that question. Hear please. U will in fact, i want each of you to. If you were a Border Patrol agent, you would love your job. You might not like where you ot live, but you love your job. What weve seen again since weve cut the number of hours, weve seen that these criminalw cartels are exploiting the holes that weve created. Just because youre in a patrol function and you might not be arresting somebody doesnt meane that youre not performing an ty essential job. What youre doing is youre actually deterring the entrance of illegal aliens. If youre out there and use you patrolling the border, just because youre not putting hands on somebody who is committing crime, youre letting them knowe that your presence is there andk that you are ready to put hands on them if need be. He and when i say put hands on them, im talking in a legal and lawful way. But were ready and were al wi prepared to deal with the threat that will present itself if were there. Ent let me hear from others, please. So in the simple example in san diego, before you were donea with the assignment at the linec even if there isnt anything specifically spectacular going a on, we want someone to a relieve you. There needs to be a compensation mechanism that allows for that relief so i can use a threeshift model to expand thes deployment versus some kind of o four or fiveshift model where s theres an overlap before the end of your shift for relief. Ot tho is not suited and weve been called on that administrativelyt and in the Legal Framework for using it as relief so you cant. Auo is not specifically for itat. In the tracking example in laredo or elsewhere, thats ampe pretty straight forward. Thats what auo is designed to y do. But in the auo construct when you have 85 1 2 hours, hit thatf threshold, were going to pay you more for the extra hours or beyond 85 1 2. R our thats what flsa compensation in the law allows for. It would be more expensive from that point Going Forward. J. Its not just the 25 . Ours t it gets you up to 25 . And once you get beyond that 85 1 2 hours, then youre getting closer to a timeandahalf model versus whats contemplated in the legislation which is straight pay for the first ten c hours. You ta mr. Miles, mr. Hamrick, can h you add or take away to this, please . So i think the only thing wei would want to add to the conversation is a fourth and aoh fifth example. Fth ex its the instructor at the Training Facility and the paralegal in san diego. And i think mr. Judd makes really good arguments that fromt a recruitment and retention ro standpoint, maybe you cant getr a Border Patrol agent to go to georgia if hes not going to get a promised ninth and tenth hour, but thats really a cost benefit analysis that we dont feel alys comfortable making but just wanted to flag that issue and ai put it out there. As far as whether in all three of our examples plus the additional two administrative oo Office Settings or training f settings, whether thats trai something that should be methin institutionalized. Couldnt we just say if someone you want to have hamebody who is really experienced out of the field, make a good instructor in order to induce him or her to come and be an instructor, pay them a stipend, something extra. Whats wrong with that . I think that would work in a general sense. Were just not equipped the tools dont exist for us to do that now. Gefor us t okay. Any before i yield to dr. Coburn, just very, very es briefly, unintended that consequences. M the any unintended consequence that is would flow from the legislation that senators testel and mccain have worked on, please . That sen mr. Judd . Weve looked at this every el way imaginable. Pr this is a fouryear process thao were seeing, and i think that weve attacked this the best we possibly can and i just dont hs see any unintended consequencesu others, please . I would just say that weve learned from the mistakes and the problems with auo. This legislation borrows from existing structures. The rest of federal Law Enforcement, both in the academr and the corporate setting, use the l. E. A. P. Model which is 25 compensation for those formats. So weve looked at that. It resonates a bit in this, but this is, i think, a better thenario for cbp and the Border Patrol because it contemplates not being available but actually being assigned. Okay. Mr. Hamrick, mr. Miles, please, and then i will yield. I have nothing to add, sir. Okay. He mr. Miles . S this and, you know, weve tried tb flag the issues that we think are worth all of you considerini as you debate and discuss this bill, so dont want to go into those again. Okay. But th when i come back, id like to talk about dr. Coburn may already raise this issue, but the issue of the calculation of pensions and how it works out now and how it would change under this legislation. Hief vit dr. Coburn . Chief vitiello, would you support capping the number of agents getting 100 at 90 until an audit is done that would say you needed to go above that . Gisl so, i think whats contemplated in the legislations is for us to have a baseline cor requirement in every location, at least 90 of the core e workforce to be at the level one, which is maximum capabilityim. We think thats important for stability and projection of costs. Yeah. Y you mentioned availability pay by the fbi, Social Security i mean secret service and some of arese other Law Enforcement agencies, but arent they required to be available on a 24hour basis to get that availability pay . They are required. But the difference between that statute and my understanding of it, because i dont administer it, and whats contemplated her0 is this compels a tenhour day. U l. E. A. P. Does not. I just wanted to put something in the record. In 2013 we had 21,391 border to patrol. In 2005 we had 11,264. Arrests were 1,189,000 in 2009, there were 420,789 in 2013. Technology has helped us a great deal, but we have doubled the Border Patrol and yet our and arrests are down. R part of that is because we dond have the ingress, i would think you would agree. It had decreased for a period of time due to the economic condition that we went under. Wt the other thing i want to enter into the record is the Border Patrol gross earnings and agency costs. This is a comparison. Auo versus flsa and the bill as put forward. And it does document some savings that will be there and ill come back again to you, chief. Until we can know just from a common sense standpoint who really needs within your tandpoi organization i agree that the 90 number is a good number, jon. Good i dont have any problem. I have a problem getting above e that in some of these other aee areas where it would not seem fair to people that work in m other areas of the federal in government that were going to e compensate people who are not hn doing things that are required extra time that they get paid ip that. So you dont have in your written answers to our committee, you said that you would support that. Mmittee im trying to get you to answer that question now. So i think its appropriate, given your description of the vr growth over the last several years, that the Border Patrol, cbp, and the department take time now to refine how we use the hours that are available. Hr i prefer maximum capability in every location, and i also we are building a system by which we can show you and others how many hours are spent at each location, and not only that but in discrete categories of work. R so i think thats important. At and were happy to be a part of a demonstration to this body anr others that says, here are wherh all the 21,000 agents here iy where they spent their time hour for hour. Nt we ar thats a refinement were growth w. We think its important given the growth weve had, the increase in capability. Creasi we totally agree the environmeng has changed. But it is still a dynamic place and overtime wed like to be in a position that says here is th where all those hours were and o wed be i think it would be easy for us to substantiate asyo maximum capability. Does that tie in with the ngw study that you all are doing now in terms of the auo and everything in terms youre trying to get a better management handle by metrics and by location and by area. Does that tie in with what the secretary has asked in terms of an auo evaluation and the study that you all are doing now . Theyre independent in the du sense that one was started in we c to reform the situation that were in. R and to the extent that we can improve the auo condition, were going to do that. Auo the management requirements ll determination process will ort o support our effort to refine and demonstrate to you the capabilities that are being usei and how theyre being used, buti it will also inform the secretarys work and the task that hes given us to reform hai this issue Going Forward. Well be able to quantify and justify the hours as theyre g t being used. Q okay. Being us all right. I just have a couple other t int pieces of paper id like to put into the record. Qu without objection. And i have no other questions. Senator tester. Yeah, thank you, mr. Ou mr. Chairman. A couple questions for mr. Miles, real quick. Quick. Weve got two special counsel reports that outline the abuse and misuses of auo. Your office has published two r reports on the issue, one in dn october of this year. Do you think dhs has provided adequate redress during the five years the agency has known about the problem . I think our october letter outlined a lot of concerns withr the pace that dhs was making reforms and, for example, in ex 2007 and 2008 dhs committed to issuing a departmentwide mentwe directive to direct the auo issue. And then in the 2013 ing communication we noted that the directive was still lacking. However, in the last since ln january, since you held your hearing on auo, they have takeny a lot of productive steps and a lot of those are making a difference. I want to talk a little bit t about a suggestion that senator coburn brought up in his opening remarks. Wed you guys can add to it. He talked about just changing t the base pay, not doing all this what were doing in this bill, but just changing the base pay. And my take on that is that we h do need to address the extra hours needed on the border that that would not address. And we do need to address the overtime issue that that would not address. And we need to provide some andn stability in the schedule because the previous two that et would not address. Would either judd or vitiello want to add to that at all . Therj in essence we are, in fact, e changing the base pay. The overtime hours, although its beyond eight hours, its s still being paid at straight sio time. So, in essence, you are just changing the base pay. What youre doing is youre teet guaranteeing youre putting r guarantee in there that this is what we are going to make which is what we dont currently have. So you are changing the base pay. Chang this will become part of the base package. Part mr. Vitiello. The Current System supports irregular work. But it a whats contemplated in the nt e legislation better supports irregular work but it also gives us Management Controls that i sr dont have now in the self peope deployable overtime and it gives us greater accountability with regard to where people are in relation to their base pay and then the extra hours that hours theyre putting in each day. Mr. Hamrick, do you believe and i dont want to y put words in your mouth, but do you think part of the problem with auo is just bad management . No, senator tester. I believe that the Biggest Issue is the challenge in identifyingo what overtime hours are legally compensated through auo and what overtime hours are not. I once was an auo earner myself many years ago before the l. E. A. P. Law came into effect, and in nearly 28 years in federal Law Enforcement, i havel learned more about l. E. A. P. Or l auo in the past 12 months than i ever knew as an auo earner. So its a complicated pay systel that is difficult to navigate. Would you agree this would simplify that pay system. Yes, sir. Yes make it easier to audit . Yes, sir. I want to talk about retention and recruitment for just a second. I should have brought a pictureo of my farm in here. I live about 75 miles, 80 miles south of the northern border. What impact do you think you already said this would help with retention and recruitment,e mr. Judd, and senator coburn says he doesnt want to reduce pay, and i believe both of you, okay . The question becomes if we im very concerned about retention and recruitment. And kind of, mr. Judd, give me your take on how this will be accepted versus completely redoing the system and not not giving the kind of of a predictability that i think this bill does. Senator, its very simple. Back in 1997, when i pursued a career with the Border Patrol, i was in the process of two other local Law Enforcement agencies. These local Law Enforcement two agencies were in very desirable locations in which to live. The only reason that i took the Border Patrol job was because with the auo, it was more money. Okay. I moved to a very well, frankly, a less desirable did th location to live, but i did that because i was making more money and over the long term and with retirement, it would have been better for me. Uld ha if you get rid of this 25 , you will not be able to recruit quality individuals to do this i job. Is i appreciate that. I would just like to make one real quick statement. It deals with making the floor of the cap that senator coburn had talked about, and i would just say we really depend on aly customs and Border Patrol and the folks that are out in the field to determine what their needs are in the same way we depend upon the military to tell us what their needs are and we act. Were hearing from the agency and from the folks working on the ground that 90 is a reasonable floor. And i think it would be i think it would be dangerous to use it as a cap because these are the guys that are out there, they know the impacts that are happening every day. Usere and they know the kind of intrusionn on that border that, quite frankly, i dont hear about and most of the folks that live closer to the border than i do dont hear about. Han i do i dont speak for senator senatr mccain, and its too bad he isnt here. If there wanted to be an audit done and that audit showed that that 90 floor was too high or e not high enough, that might be a way to go, but i think to put ia as a ceiling would be dangerous. Okay. I yield. I just have a couple other ey questions for mr. Hamrick. Ie osc has referred ten cases of auo abuse to cpb and six of those are under your office. Thats my understanding. Is that right . My office has conducted six investigations that were referred to us by the osc. There were ten total referrals, right . Referral thats the number. Okay. Where are the other four cases and who is investigating those . Is inv because there was an esn allegation of auo misuse against the office of internal affairs, we are no longer our agents are no longer conducting those investigations. Theyve been referred to the ig, to the inspector general. I understand. Thank you. I want to go back in time a couple of years, i think, to 2012. And i know the problem with the administratively uncontrollable fisctime is not a new one. In fact, i think the president , i want to say his fiscal 2012 d budget request included a legislative proposal that pr attempted to address this problem by putting Border Patrol into a system, as you know, known as the Law Enforcement t availability pay or l. E. A. P. As i understand it, the Law Enforcement availability pay proposal generally applies to criminal investigators such as s the fbi, such as the Drug Enforcement agency or secret service agents. Ere se gives them a 25 increase in their base salary based on the e expectation that they will be b available to work as needed. And that was a proposal in 2012. Congress failed to act. Let me just ask, if i could, mr. Vitiello and then mr. Judd, could you explain to us what happened in 2012 with this legislative proposal . And, if you would, please explain why you believe the tester mccain bill is an e improvement over the 2012 egisli legislative proposal to put Border Patrol on l. E. A. P. Along with dea and the fbi and secret service. Mr. Vitiello . So the agency and through the request advocated for conversioi to l. E. A. P. In the sense that it did offer the same kind of a savings that are contemplated df here. Fel but there were several voices of stakeholders that were not wi enamored of the way l. E. A. P. Is used. And for our work what might those stakeholders be . The national Border Patrol council among others. Seated to my left. Okay. What what were their reservations . Wew well, like whats contemplated here, flsa was not going to be remuneration going and they were concerned and ill let brandon speak for themselver but the concerns we heard was wr there wasnt a threshold to which to manage against or two. And they were concerned that people like me would abuse that. What is contemplated are thresholds and unilateral her ability for management right to assign folks to keep them below or at the threshold, and so what thisere is much improved from that experience. E th this borrows a lot from l. E. A. P. In the sense that it solidifies the macrobudget picture. It allows us to forecast going d forward without using flsa as an unpredictable cost in the future. Mr. Judd . Do you agree . Sage . Did you approve this message . I absolutely agreed that it was the national Border Patrol h council that was adamantly opposed to l. E. A. P. The simple reason that were opposed to l. E. A. P. Is the simple notion that all you have to do is be available to be tht paid, somebody needs to go back and read the law and i think you need to start investigating some other agencies. In fact, the law specifically tc states that you must maintain certain number of hours that you have to be scheduled. The problem with l. E. A. P. Is you can schedule me for ten hours but if i work over ten hours for that day, its free. Its free. And there is no mechanism to force them to let me go after n ten hours. On the so, in other words, in a real world sense, if im in a certair area on the border and the relief that is going to relievel me for today calls in sick, the agency could call me up and saya hey, your relief just called in sick, we didnt schedule this to happen, we need you to work a double shift, and, by the way, s that double shift is now going to be free. So we needed a mechanism to we e ensure that the agency was not going to work us beyond ten to hours per day and work us for anee, and thats what this legislation does. This gives us what we call backend protections to ensure that we get compensated for the work that we do. Okay. Oka thanks. Have ano i have another question if i can get a couple more let me use my time and i will yield i back to you, senator tester, if youd like to take more time. A question on operational tempo, the number of shifts worked per day, if i could. And i think ill probably address these couple questions e to you in this regard, to you, mr. Vitiello. But i understand that one of the most widespread misuses of administratively uncontrollablea overtime at the Border Patrol has been to pay for the extra t time it takes employees to tra transition from one shift to another. And this has allowed the Border Patrol to use three tenhour shifts at many locations rather than four eighthour shifts. In fact, the office of special counsel noted in its written testimony that Border Patrol, this is a quote i think, managers insist that employing three tenhour shifts is a moren costeffective approach to securing the border even if pre administratively uncontrollable overtime may not properly be used for routine activities. Thats a quote. Ti and a couple questions, if i could. Mr. Vitiello, id like to ask lw you to explain why the Border Patrol believes that using three shifts instead of four is a more costeffective approach to ee ss securing the border. To se so i agree with the managers in san diego who pointed that out in this in those interviews. N idea in an ideal setting 24 by 7, 7 day a week in workload along the border, you would have to er you transition between shifts however they are, and its better to have three with the rd overhead, the managers, and thes supervisors versus four or five to predict and then schedule that overlap. Its better to have a redict threeshift model. Etter when you have a threeshift model, the shifts have to transfer information to each de other before one starts and thee other and people have to be relieved. Oweer the Current System auo is not designed its not thec rubric doesnt allow for relief to be paid for using auo. Whatever system we went Going Forward, its always better to s have three shifts instead of o w four. You have better capability that way. W but you would still need to yo figure out how to transfer thatt knowledge and that means time. Let me follow up. Im you address this at least in go part, but im going to ask it c anyway. What would be the impact on your operations and your ability to e secure the border if you were forced to move to four shifts bf across the border as a result of not being able to use administratively uncontrollable overtime to pay for shift r changes . You would just need more e agents to do the same amount ofe work. You we would prefer and its most advantageous to the organization as it relates to predicting costs and the future stability that you have three shifts th instead of four. Astead its more costeffective. You hahave to hire more agents to get the same level of deployment across the 24hour period. Of and, finally, mr. Vitiello, how will the tester mccain bill that were considering today impact your ability to schedule fewer shifts and thus deploy additional agents to the border each day . Ontempla whats contemplated here is s it would allow for using this lc model to compensate people for this relief. There are lots of missions that occur after the shift is over, transferring information, over. Developing trends to inform the next days deployment, the next shifts deployment, the trends that are happening in real timet we want agents to record and transfer that at the end of thee shift so the next shift is mored capable, and so as they deploy e the next day theyre smarter about where they place their assets and how supervisors move people from one side of a deployment area to another. So you need to have that you n transfer of knowledge. You need that overlap, not for the physical not only for thu physical presence but for the ft information and the rapid sed on response thats required based on the information that they develop while in their shift. Thanks very much. Eir senator tester. Thank you, mr. Chairman. Ou m. I want to thank each one of thet Witnesses Today for your e testimony and for your test straightforward answers. I would just like to say it is seldom in the u. S. Senate that s we get a bill that makes the situation simpler, that the agencies want, that the people n that are employed by the agencies want, that saves money, that increases efficiency, that increases predictability, and we dont throw it out of here as quick as we can. Lem. We have a problem. I think all four of the witnesses have pointed out whatm the problem is, and i think tha if the senate does what it doesh so very well, and that is talk t it to death and delay it to is death, we wont get this Problem Solved. And the ultimate thing that will happen if we dont get this Problem Solved is our borders e will be less secure, well be ss looking around pointing our fingers at you guys saying, why didnt you do this or why didnt you do that when, in fact, its our obligation to make sure you have the tools to be able to do your job to protect the border r in a way that you know how it ee needs to be protected. With that, mr. Chairman, i would say that we are in the first orf second week in june. If we dont get this bill out of committee and if things go upside down on our border, we can reconvene this committee of Homeland Security and talk abouy how we have screwed up. With that, mr. Chairman, i will ask you when will there be a markup on this bill . Im going to confer with dr. Coburn. Well let you know later this week. Later this week we ought to have a markup on this bill, mr. Chairman. Ill confer with dr. Coburn, well let you know later this week and well invite you to be part of that conversation along with senator mccain. Ybe yo well, just let me make it very, very clear. This is not something we should screw around with. Weve got people out here that t are probably watching us on o cspan right now wanting to knoo what were going to do. We have folks who work for cbp that like their job, are proud of their job, and that if we dont set some certainty down for these folks, theyre going r to go to work somewhere else. We need to fix it so it can be audited, so that we know what were doing, and so that these folks have some predictability. We can put it off to the end ofp the month, but keep in mind, the longer we put this off, we have to get it off the senate floor. Weve got to see if the house et can get it done, and then we n need to get it implemented, and impl is awaiting. Kn have 11 weeks left. Well, i think, senator tester, you know that theres ow been a lot of discussion about whether or not if this bill saves as much money as were told it might, there might be available to serve as an offset to strengthen our cyber offst appreciate that. Within the department of Homeland Security. Believe me, i understand the need for moving it along. Mr. Chairman, if this bill doesnt save one thin dime, if its revenue neutral, we ought to do it. Fair enough. I hope it saves more than a few thin dimes. And i thank you very much for all the work that you and your staff and that of senator mccaie have done on this. I wish he could be here. I understand he couldnt, but ii well put our Heads Together and talk this week and if we can do it early this week, well do itp early this week. U im free tomorrow afternoon,w just so you know. All right. Thats good. Im getting your drift. All right. Be my la this might be my last question u and it deals with the surge that weve seen in unauthorized rg migration from Central America, particularly the record numbers of unaccompanied minors that art coming and the effect theyre having on the Border Patrols re ability to carry out other parts of its mission. Surge specifically i think he noted that the surge were seeing is, i think this is a quote, compromising dhss capabilities to address other transborder for criminal activity such as human smuggling and trafficking, illicit drugs, weapons and commercial and financial operations. Who is this . Mr. Vatello, im going to ask o you to please expand on this for us, if you would. What exactly has the impact of this current surge in unauthorized migration been on s the Border Patrols capacity to carry out its mission . Start with that and then ill e ask a second question. So as it relates to the conditions specifically in the i rio grande valley, we are facina a situation where the facilities that are available the eight stations that are in the valleya are insufficiently large enough to accommodate the number of inu people who we find ourselves fff arresting. And so, given the time frame that we need to book people in, and to treat juveniles via the statute to turn them over to hhs before the 72hour clock runs out, we were insufficiently prepared to do that, given the f space thats available there. Thats why the secretary immediately designated it as a y level four event. Made myself the coordinator for the dhs response and the liaison with the interagency and then ee the president since has ident dsignated as a humanitarian event, and put administrator fugate into the federal coordination role to drive moret resources as we started, to the valley, to do what fema calls Wraparound Services for our facilities in the valley. And then to make the system work more efficiently, to have more i placement for these children. T and what it means to the that operations is that we had we were using enforcement resources in order to do this care, and to make these facilities as safe ot and as useful as possible, and to provide the right setting for the people who were custody. That help is downrange considerably. Its changed considerably sincey the end of may and early june, c and since the president s and n designation as administrator fugate to coordinate the agency, it has gotten much better. We were concerned the text that you speak of is a draft that my staff had prepared for me. Ext we had not sent it to the hat interagency coordinating group,e but it was a concern that has been existent in the valley for awhile and weve moved forward to improve those conditions since the time of that writing. R all right. Let me follow up with this. W i understand that due to budgetary constraints in the ate past couple of years the borderc patrol has had to reduce the amount of hours worked by its te agents to reduce overtime costs. What impact has this had on Border Patrols capacity to deas with the surge in migration were currently seeing as well as other threats in the border region . Ll as ot and i think youve addressed this at least in part, if you want to take another shot at it and im going to ask mr. Judd if he would share his thoughts wit. Us. So in late 12 we looked at the 13 and 14 budget picture s before sequestration and recognized that there was some m savings based on our emerging e awareness, and understanding of the challenge we had with the auo rubric. And we decided that we could take some risk in reducing hours in order to drive savings from e those accounts. We decided in 13 to do that aso an experiment to see how well wl could monitor what is by statute uncontrollable. I think we did a fair job of that. I think before and after sequester, and the sequester plans made that ultimately more difficult. In 14 we drive for more ester l savings. But what that means, really, ist shrinking hours of agent deployment. Urs so the overlaps, you go there a threeshift model to a fourshift model or more. Rce and then youre pulling hours e out of the workforce in order not to make payments to agencies so youre reducing capability. Fc we think that those risks that we were taking were adequate ans substantial but manageable. And in the situation as it relates to rgb we recognize now that that cant be the way forward. The work set thats down there, and in other places, we cant continue to do that. W so, weve reduced those costs for to meet the targets in 13 and attempted to do the same in 14, but there are certain locations where thats just noth an acceptable risk anymore. T mr. Judd, any thoughts on this . Absolutely. With to those that are watching on cspan, to keep this in laymanc terms, what were seeing with this surge thats coming over in rgb, its pulling agents out ofd the field. Theyre no longer patrolling tha theyer. Re theyre having to deal with this huge influx of minors that are e coming in. H theyre having to process them, watch them, feed them, theyre e having to do all of these Different Things instead of actually being out and patrolling the border. Bein not only is that happening in rgb, but because they dont have the facilities to manage the nat influx of crossings, theyre nof sending them to places like el paso, the tucson sector. And what thats doing, thats also pulling resources out of ti the field, Border Patrol agents out of the field that would normally be patrolling the border and theyre now having to do those same things, process these illegal aliens, theyre having to watch them, feed themd take care of all of the needs th while theyre in our custody an what its doing is its straining, to the breaking point, the number of agents that were able to deploy out into tu the field. And its hurting us. All right. Fie thanks. L how will the tester mccain bill address this issue, or these issues . So specifically the hours passed the fsla remuneration is not part of the compensation package Going Forward. So straight time for the rtrwaro assigned ten hours through the e shift. That would give us more hou capability. Giving its, in essence, giving us nearly 1500 agents more more cap capability along the borders with current staffing levels. So it allows us to flex in that overlap, it allows us to have a core capability across the force and so i dont have to shrink hours in order to reduce those e payments that budget picture. Yig in essence, youll be paying me the same amount of money to work ten hours, as what youre currently paying me to work 9. 3 hours. Rrenurs and and thats why the additional 1,000, 1200 agents comes in. Because youre paying the flsa right now, im only able to work 9. 3 hours because we have this o overtime budget and we cant exceed that overtime budget. S overti so im working 9. 3 hours. The senator mccain and senator tester bill will allow me to e o work ten hours for the exact same amount of pay as what i would work at 9. 3, 9. 25 hours. Okay. A last question i have relates to something dr. Coburn said to me early in the hearing. And it dealt with calculation of pension benefits for those that are caught that work under this kind of arrangement, pay arrangement. T and he suggested that the it would save he thought it te would save money in the near tr term, but in the longterm, may cost money, because of additional pension payments. Can Somebody Just speak to in fact all of you are welcome to address that if youd like. Mr. Miles, do you have anything you want to say on that front . No, sir. Es mr. Ham m. Hammrick . No, sir. Why not . Add i have nothing to add, sir. I. All right. Mr. Judd . Ion righ thats absolutely incorrect. Our pension right now is based upon 25 auo plus our base pay. A this would this would keep everything exactly the same. This wouldnt change anything. It wouldnt cost more. It wouldnt cost less. The pension would be the same. All right. Chief . It isnt a change as it relates to auo payments or othee statutes that are out there like l. E. A. P. Okay. I think were going to wrap it up here. I think we have to start some votes over in the senate. And were i think with that i want to thank each of you for t coming today. And thanks for making time to be with us, on short notice. One of you at least very short ytice. And we appreciate your youimony, we appreciate your thswering our questions. The hearing record is going to remain open for 15 days, thats until june 24th at 5 00 p. M. For submission of statements and questions for the record. D urgem im going to urge my colleagues if they have any additional questions to send it well befor june 24th so that we can get a e very prompt answers to those questions. But with that having been said, its been a good hearing and im appreciative of the time thatsa been invested by our witnesses,a by our staff, and by the members that this hearing is adjourned. Thanks so much. One of the topics at tuesday eesz White House Briefing was the number of minor coming across the u. S. Border from mexico and Central America. Heres a portion of that briefing. I know you guys have been working to address kind of this influx of unaccompanied minor on the southern border. And what im interested in is kind of the political implications of that. We heard a lot from House Republicans over or house and Senate Republicans that this was sort of the by product of the president putting together dacca, the way thats sort of been filtered through, immigrant children believe they can cross the border and stay here. Theyre saying that i wouldnt put any stock in the republican members of congress to devine the thoughts and insights of children in and insights of children in centralatq0v1e0s10 50atq0v1e0s1f who do want to immigrate to this country legally if they have an opportunity. So theres legislation that exists, and i recognize that there are, for whatever reasons, there are some who oppose this compromise and will cite a wide range of things to suggest why they think it shouldnt get done. That extends to the thoughts of minors who dont live in this country. Do you expect the president to take a public stance on this question . [ inaudible ] there are literally hundreds of kids in arizona who are accompanied by parents or relatives, being bussed from texas to arizona and being left in a detention facility. What is the federal government doing with these kids . Let me read this little section how weve been dealing with this influx that weve seen of unaccompanied immigrant children. The number of children coming alone to the United States from Central America has grown in recent years. Many are escaping abuse or persecution, others fleeing gangs or violence, or victims of trafficking or seeking to reunite with their family in the United States. The entire administration is focused on addressing the challenges to make sure theyre adequately cared for. To identify additional overflow facilities, provide safe and prompt transportation for the children to hhs custody, and provide medical and other services to children in the dhs facilities. So this will ensure a unity of effort across the federal government in responding to the humanitarian aspects of this urgent situation. So there are resources being put in place, being courted by the fema administrator to work with the department of defense, of Homeland Security and hhs to make sure that we have adequate resources to deal with this influx of unaccompanied minors that we have seen. The governor of arizona has been a critic but is wondering why these kids are being moved from texas to arizona. What is the rational . Its not kids its not these minors being shipped to arizona. There are facilities in texas and one in california and one in oklahoma where unaccompanied minors are being cared for. Again, under the supervision of hhs as required by law and coordinated by fema. In arizona were seeing a different situation. There are also situations in which the customs and Border Patrol will come across basically families that are attempting to enter the country. So what they will often do is to process those families, they will send them to a Processing Center that has more band width, that has the capacity to process them through the system. The kids in the facility in arizona are not being shipped from texas . Some of these families are attempting to gain entry that have been moved to the arizona processing facility because it has some additional capacity to process these families. So thats a long standing practice and not anything new, and thats not related to this recent influx of unaccompanied minors. Does that make sense . Watch this briefing and all of our events at our website, cspan. Org. Sundays new book, sundays at 8 00, includes Kenneth Feinberg. From the perspective of the victims, i dont see any distinction. If you try and justify my program of the basis of the victims loss, i cant convincingly explain why 9 11, yes, 93 World Trade Center no. I think the only way you justify this program as a special cavo is from the perspective of the nation, a recognition that 9 11 was, along with the american civil war, pearl harbor, maybe the assassination of president kennedy and 9 11, its impact on the American People was such that this was really a response from america to demonstrate the solidarity and cohesiveness of the American People towards these victims. Read more of our conversation with Kenneth Feinberg and other interviews from our book notes in cspans sundays at 8 00. Now available for a fathers day gift at your Favorite Book seller. Next, defense undersecretary Michael Vickers discusses u. S. Intelligence challenges and National Security. He spoke earlier this month at an event hosted by the strategic for international studies. Welcome. Were delighted to have you here and on a glorious morning. Absolutely fabulous. Of course, we deserve it because of the tough winter we had. Welcome to all of you. My special thanks to our friends at rollsroyce who make it possible for us to make this Series Available to the policy community in washington and were very delighted to have mike vickers with us this morning. I was serving up in the Armed Services committee when, i think gosh, i cant remember the year. I think it was 1988 when we created the program and the whole special operations command, et cetera. And i think that we actually had mike in mind for who would be the leader at socom. It took a while for us to find him. At the time mike was serving in the cia, had a long history in special forces, and came to the administration to become the assistant secretary back in 2007. We were it was just the right time when he was brought in. The Bush Administration asked him to come in to give some direction. He did a masterful job. And then bob gates felt that no one would be better to replace jim clapper than mike to be the undersecretary for intelligence. I think its been a masterful service, mike. Weve been lucky as a country to have you at this crucial time. I know its been a challenging and worrying assignment, but you shouldered it so wonderfully and the whole community is grateful for what youve done. Were going to have a very interesting session this morning. I expect this is going to be a very vivid and lively session. So would you, with your applause, welcome mike vickers. [ applause ] well, thank you for that really gracious introduction and thank you and to dr. Hicks for your distinguished service to our country and to csi for putting on important forums such as this. I thought i would make a few remarks this morning for about 20 minutes and then take question as the standard format. Next slide, please. All right. Im qualified now on this thing. Okay, so im going to talk about these four topics and given that this is a military strategy forum, im going to try to move beyond my intelligence brief a little bit and talk about some of the implications for strategy for National Security strategy, Defense Strategy and intelligence strategy as we look