By Robert K. Brown
Editor and Publisher
Soldier of Fortune Magazine
This editorial was first published in the April 2009 edition of Soldier of Fortune Magazine. It is reprinted here with permission.
NEED A DEFINITION FOR OBAMA’S CALL FOR “RESPONSIBILITY”
Amid the orderly transfer of power, our new Chief Executive has issued a call for responsibility. As is the case with most of his public statements, his meaning is not clear. However, if he means holding government officials accountable for their actions, a novel and great idea, it is something that we can all embrace. It is particularly true of those officials within agencies with a long and well documented history of abuses of entrusted powers. Somehow, ATFE comes to mind as the poster boy for irresponsibility and unaccountability.
The Office of the Inspector General (OIG) of the Department of Justice recently (December 2008) reported on “An Investigation of Overtime Payments to FBI and Other Department of Justice Employees Deployed to Iraq” during the period 2003 through 2008. The “other” employees in the title of the report included ATFE Special Agents as well as DEA Special Agents and Deputy U.S. Marshals.
ATFE Special Agents were deployed in Iraq on 90-day TDY assignments between 2003 and 2008. During that time, they were paid $4,175,731.00 in unauthorized and unlawful overtime pay. They filed fraudulent claims for the overtime and ATFE senior officials did nothing to monitor the claims or review them for conformity with federal law and regulations. In other words, the ATFE Special Agents, law enforcement officers who are sworn to faithfully execute the laws of the United States, filed false time and attendance reports claiming pay for overtime which was not worked and for which payment was not authorized under federal law.
ATFE senior officials are paid to ensure that compensation for work performed by ATFE employees conforms with federal law. Throughout the five-year period, nothing was done to monitor the claims for overtime pay and no internal reviews were undertaken. If nothing else, the OIG Report gives rise to the question, whether ATFE, a large federal organization with law enforcement powers, can be held accountable to the people for waste, fraud and abuse. If so, where do we start? The OIG Report is a good starting place.
LET’S DEFINE GOVERNMENT WASTE, FRAUD AND ABUSE
The most difficult part of any attempt to correct government waste, fraud and abuse is in identifying the acts and the actors. It usually comes to light from an insider or a victim. The OIG investigation originated from inside information. An FBI employee, who asked to remain anonymous, disclosed that FBI agents were paid for working 16 hours per day, 7 days per week while they were stationed in Iraq, irrespective of the number of hours actually worked. The OIG investigation expanded when it became known that ATFE Special Agents working in Iraq uniformly claimed pay for 15.5 hours per day, 7 days per week. The time claimed as “work” included such activities as commuting to and from work, exercise, standby time and such activities as recreation and socializing.
The OIG Report concluded that few, if any, employees worked 15.5 or 16 hours a day every day for 90 days straight. Moreover, even if they did work such hours, employees in the Special Agent classification series are not legally authorized overtime pay because all Special Agents must qualify for and are paid a “premium” for administratively uncontrollable work in excess of 8 hours per day. Every Special Agent knows the rules for pay from his first day on the job and also knows that payment of overtime is prohibited under federal law unless scheduled in advance of the work week; that it can only be scheduled after a methodical analyses by the approving official confirming that compensation for overtime is necessary; and then, overtime pay can be claimed only if the employee actually works the hours scheduled.
ATFE Special Agents were deployed in Iraq for 90-day assignments (13 weeks) and in the period covered by the OIG audit there were 145 such deployments. ATFE’s own estimate to OIG is that it paid $4,175,731.00 in overtime to Special Agents in Iraq between 2003 and July 2008. Special Agents fall within a special classification series for all purposes. They differ from government bureaucrats in that they are held to much higher moral standards. They are required to be exposed to danger in the course of performing their duties. They are caused to work long hours in the investigation of crimes and due to the nature of the work, the hours of work are incapable of being administratively controllable.
Special Agents also receive pay and benefits which are extraordinarily generous. The average base salary for a Special Agent, such as those who were deployed to Iraq, is $108,576.00. That figure is derived from the fact that the average agent deployed was a Step 5 of Grade 13 in the Civil Service pay scale, the base pay for which is $94,025.00. To that is added a premium pay of 25 percent of a Grade 11, or $14,551.00, for which all agents must qualify. In addition to the $108.576.00 base salary, while on assignment in Iraq each ATFE Special Agent was eligible for and received the following extra compensations authorized by federal law:
1. A night differential of 10 percent for hours worked between 6:00 pm and 6:00 am (5 U.S.C. 5545 (a); 5 C.F.R. 550.121);
2. A Sunday differential (25 percent for up to 8 hours of non-overtime work on Sundays (5 U.S.C. 5546(a); 5 C.F.R. 550.171);
3. A post differential of up to 25 percent extra for the first 40 hours per week in locations that differ substantially from conditions in the continental United States (5 U.S.C. 5926) (this percentage increased in Iraq from 25 percent to 35 percent in 2006);
4. A danger pay of 25 percent extra for the first 40 hours per week for work on the basis of wartime conditions (5 U.S.C. 5928);
5. And holiday pay, twice the employee’s salary for up to 8 hours of work on holidays (5 U.S.C 5546(b); 5 C.F.R. 550.103; 5 C.F.R. 550.131(a).
The annual salary of Special Agents does not include benefits provided, which include:
1. 13 days annual leave (26 days for those with 15 years of service);
2. 13 days of sick leave;
3. 10 paid holidays;
4. Retirement at age 50 with 20 years of service (It is worth noting that premium pay is included in calculating retirement benefits);
5. Health insurance;
6. Life insurance.
Remarkable for its absence from the OIG Report is any recommendation for accountability. It does not recommend any attempt to recoup excess payments for overtime which was unlawful. It does not recommend any sanctions against individuals for filing false time and attendance reports or sanctions for mismanaging the administration of federal laws and regulations regarding compensation of federal employees.
With this as prologue, there is a starting point. Who will be looking out for those gun owners whose rights have been abused or are ripe for abuse; for small businesses such as Red’s Trading Post and other law abiding individuals whose businesses will be destroyed; for those who will face criminal prosecution for inadvertent, technical mistakes on federal forms?
HERE’S A DEFINITION OF “RESPONSIBILITY”
Below are some suggestions to give accountability a start. Hold ATFE accountable for the mismanagement of your tax money as reported in the OIG Report:
1. The ATFE budget for the next budget cycle should be reduced by $4,175,731.00, the amount of the fraud on taxpayer funds detailed in the OIG Report;
2. The ATFE Special Agents who made false claims on official time and attendance reports for personal benefit should be appropriately sanctioned and made to reimburse the Government. At a minimum, an official letter should be placed in their personnel files noting the number of false statements made in official reports. Those gun owners who will be charged criminally and those FFL holders who will face license revocations are entitled to know that their accusers have a record of falsifying official reports. This will contribute to fair trials for defendants in future cases in which such agents will be called to testify;
3. Those officials within ATFE responsible for establishing policy and procedures relating to the administration of federal law and regulations of ATFE pay should be identified. Their official performance reviews for the years 2003 through 2008 should be reviewed and amended if their evaluations were satisfactory or above. Sanctions, such as letters of reprimand appropriate to fit the unsatisfactory performance, should be made a part of their official personnel file. It should be noted that Acting Director Michael J. Sullivan, the ultimate official during the years 2007 and 2008, will not be held accountable because he has announced his resignation effective 20 January, 2009.