Transcripts For CSPAN3 Key Capitol Hill Hearings 20140611 :

the problems by i.-- itself. we have responsibilities to do what we can. hillary clinton's latest book is called "hard choices" about her time of secretary of state. friday live on c-span 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 c-span 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 we've 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 he's 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. i've 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 it's not the underlying cause.ng the hearing will focus on how we can better address the symptoms. the bill we're 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 i've seen it shows the bill would add 1400 agents to the border. that's 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 thean't bill as soon as possible. while wet need to treat the op tropical stormle symptoms. we can't stop there.ix based on what i've 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 they're 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. it's 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 i'll 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. i'm 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 i'm really concerned about t what we're 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 we're going to do this. why wouldn't we change the baseh pay? why wouldn't we just change the base pay system rather than having this overtime system? the other questions that i have associated with what we're doing is things change. and what we're doing is we're 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 i'm a little concerned about that as well. risk if, in fact, the border more met difficult l acquiring greater rk and expertise, we're going somewhat limited by how we've done this. i'm 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 they're skuecure in t future. i don't want to take anybody's pay away. that's not our intent. our intent is make sure it doesn't go away. the other point i would make is there are a lot of positions within the border patrol that don't have to do the write up ay the end of the day.ve don't have to travel back from a position assignment, we're including those in this that shouldn't have an aul payment. in other words, their job shouldn't 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. i'm 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 you're right.beca things change. that's why we're 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, we've 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 he's 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 he's 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 we're 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. he's 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 that's fine. if you went a little over. that's okay. if you go way over we'll have to reign you in.y don't 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 it'sg 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, i've 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 we're 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, we've 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 we've cut the hours% by nearly 15%. we've also seen, senator tester, in your neck of the woods, in er montana, we've seen an increase in arrest since the hours were cut by nearly 50 percent. that's a huge increase. we have seen an increase on the coastal border in miami, florida. we've 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 we're vulnerable and right now due to the hours that have been cut, we are vulnerable. 50% in montana. that's huge.dress the second point i would like td address is the retention. in senator mcccain's 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. we've seen a 5% -- we've 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 we're ng experiencing. we also have another 15% at thio station alone that have pendingn applications in for other 20 agencies. we can't afford to lose 20% of the station especially a statiou that is so important to the tucson sector.on but that's 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 -- i'm 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. that's what we were told we were going to get. that's now been cut. we no longer have that. and there's 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 it's an expensive system, we couldn't 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. we're 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 agency's capability.ward t that's 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. it's 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. cbp's 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. i'm 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 it's incumbent upon dhs to tak steps to curb the abuse. it's 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 -- it's taken many years and more needs to be done, we're encouraged by the steps dhs is taking.ion congddition, they told senator tester's subcommittee in wa january, we're 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 don't 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. that's 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 10-hour 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 10-hour shifts yet they sit side by side with the border patrol agents that are working the 10-hour 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 c-span. some people watching this around the country later tonight or tomorrow and they're going to want -- what are they talking about? and i'm 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 we're trying to fix.ym what is it? -- don't use acronyms. use regular language.ob and just explain. what are we trying to fix? what is the>> problem we're tryg to fix?on whe >> we're 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 isn't 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 it's called administrative uncontrolled overtime.e it's 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 self-deploy against the work in front of them.t it's 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 there's 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 it's important to recognize that in the setting both auo and he contemplated in the legislationt it's 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 shouldn't be rewarded in the t matte matter. >> so -- >> concerns have been raised. talk us about the concerns. ai we'll 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 weren'y 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 didn't have to rs ad report back to headquarters. they didn't 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 hasn't 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 it's more regular. agents it's more routine.ti it's 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. it's routine, it's daily, it's o two hours a day.edicta and, you know, in contrast to theo rules that require bl irregular, unpredictable. bein there's 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 they're not doing any work.y pe theop allegations to date have o been substantiated. that basically people are goofing off. they're surfing the internet an during the extra two hours and not doing any law enforcement a work. that's bee'tn a concern.i it's been one that we haven't been able to pin down.on that's 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 secretary's 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 it's ser understood that the field is the biggest user of auo but there are other problems with the waya we've 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. we're getting smarter about how we teach ourselves that and he going forward we'll have better documentation about the work r that is being done whether it's 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 we're 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. i'll 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 -- we're tos that legislation would save a anywhere from 25 to $50 million a year. that's 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 don't 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 that's the expectations. i'm not critical of that. i'm wanting to get it in the record. >> certainly. you said you need to reform the post shift activities. what about jobs that don't haves post shift activities?e at auo. ere >> so i think we're talking about where the suspensions are right now. the headquarters and the training environment. it is a normal course of business at the academy's and m office that people regularly have assignment that carry them over an eight-hour shift and past the eighth hour of the n shift. i'll 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 i'm 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 they're 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? they're doing that stuff all the time, aren't that any. >> they are. >> what about the fire department -- ifda. to me it's 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 i'm 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. it's an individual kind of -- wo assign hundreds of people.he when we're 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 day-to-day basis. it's 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. that's 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. i'm 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 we're not maaffed correctly, one, or we're 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 wouldn't 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 they're not consuming the whole eight hours during the training anywam just doesn't make sense. it doesn't pass the smell test e to me. again, i don't want any cut in pay. i want this stuff restored.of wi my question is, is the assumptions under which we're doing all this don't 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 that's whether they're on the border o they're not, and i'm 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 whistle-blower 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 cpb's 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 we've been very satisfied with -- w >> i don't want to get that going.thg i'll 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 >> didn't the cpb agents have sn the same job as those who were not cpb agents?go >> yes. that's 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 -- >> that's my point. that's my point. to your knowledge, has management ever tried>> to stop them from working past eight hours a day? >> i'm 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 whistle-blower said, other than eligibility, wasn't 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. i'm way over time. senator tester, sorry to take -. >> john, you're on. >> that's perfectly all right. i'll just start out a little bit talking about the benefits of the bill and then we'll 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 doesn't meet the needs today. i think the border patrol has come to us asking for some orde reforms.i think i think it's appropriate that wr listen to their work that they're doing in the field. i've went through border stations several times, but i have to tell you i've 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 we'll 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 patrol's i operational capacity and its effectiveness? >> it will. >> i don't 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 we're 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? >> there's 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 eight-hour 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 there's no way i'm going to take a reduction in pay to come here, and i think, furthermore, if, i fact, if, in fact, you're 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 don't know what's going on out in the field. you're using folks that know and what's 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 wouldn't have happened. >> okay. up're 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 we've 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 doesn't arrest anybody. when i'm dealing with groups ofr illegal aliens or drug smugglers, i'm dealing with anywhere between 20 to 40 persons, and those drones cannoc put hands on those individuals s to arrest them. th normally when i'm dealing with these groups it's 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 can't do that. acta that's 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 ten-hour shifts -- correct me ie i'm wrong, five ten-hour 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 -- i'm sorryd laredo north. i la ray do, texas. they do an extension discussion on the costs and benefit of doing a ten-hour shift versus at eight-hour shift, and i think m that's a legitimate area for congress to consider. weat the report confirms is that the ten-hour shift is currently being compensated with auo and that's not lawful. we have to figure out if ten lu hours really is the best way in that -- s set >> and the reason it's 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 we're going to make it predictable use it whenever youu unpr, it would have been fine. but the fact is he unpredictability. >> right. that's why we wanted to flag rsd that because it's worth understanding from the cbp witnesses why ten hours is the most cost-effective approach to securing the border.rs >> okay. imr. je mr. judd, when discussing pay reform, and we're discussing this bill, we're talking about how much money it's going to a save, why would your folks be in favor of it? >> because the alternative is fr worse. what we've found is -- again, mr. miles has testified that what we're doing is not actual auo.the mr. hamrick has testified that whethours are being worked, but it's being improperly compensated. if it was properly compensated you'd actually be paying me mora money than what auo pays. i'd 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 time-and-a-half overtime system and, therefore, we're asking you for this. >> fine. we're 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, we've 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.et's g but what concerns have been raised about -- let's go back.au what concerns were raised by tht original policy that's 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 i'll -- three separate concerns. one, that auo is unlawful . because it's being used s routinely instead of for nlawful unpredictable work. two, a lot of whistle-blowers 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 aren't 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 don't 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 what's 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 fee-for-service 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. i'm just going to lay out an exm example. let's say instead of senator coburn and senator -- and myself and senator tester being senators, let's just say we're r border patrol officers and we'll say that dr. coburn is over california along the border cs there, maybe i'm in tucson sector and mr. tester is in south texas. thd there's not much going on along the california border and after eight hours mr. coburn is done. i'm in a part of the border i where there's a lot going on, ae and we have maybe 20 people that i'm tracking across the border a and trying to catch up with. i'm 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 don't 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 he's not, whatever, why don't we just pay people along those lines? i think i know the answer, but i'd like to hear you say it doe anyway.ople >> if you would, i'd 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 we've seen again since we've cut the number of hours, we've seen that these criminalw cartels are exploiting the holes that we've created. just because you're in a patrol function and you might not be arresting somebody doesn't meane that you're not performing an ty essential job. what you're doing is you're actually deterring the entrance of illegal aliens. if you're out there and use you' patrolling the border, just because you're not putting hands on somebody who is committing crime, you're 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, i'm talking in a legal and lawful way. but we're ready and we're al wi prepared to deal with the threat that will present itself if we're 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 isn't 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 three-shift model to expand thes deployment versus some kind of o four or five-shift model where s there's an overlap before the end of your shift for relief.ot tho is not suited and we've been called on that administrativelyt and in the legal framework for using it as relief so you can't. auo is not specifically for itat. in the tracking example in laredo or elsewhere, that's ampe pretty straight forward. that's what auo is designed to y do. but in the auo construct when you have 85 1/2 hours, hit thatf threshold, we're going to pay you more for the extra hours or beyond 85 1/2.r our that's what flsa compensation in the law allows for. it would be more expensive from that point going forward.j. it's not just the 25%. ours t it gets you up to 25%. and once you get beyond that 85 1/2 hours, then you're getting closer to a time-and-a-half model versus what's 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 it's 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 can't getr a border patrol agent to go to georgia if he's not going to get a promised ninth and tenth hour, but that's really a cost benefit analysis that we don't 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 that's trai something that should be methin institutionalized. >> couldn't 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. what's wrong with that? >> i think that would work in a general sense. we're just not equipped -- the tools don't 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? >> we've looked at this every el way imaginable. pr this is a four-year process thao we're seeing, and i think that we've attacked this the best we possibly can and i just don't hs see any unintended consequencesu >> others, please? >> i would just say that we've > 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 we've 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, we've tried tb flag the issues that we think are worth all of you considerini as you debate and discuss this bill, so don't want to go into those again. >> okay.but th when i come back, i'd 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 what's 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 that's 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 aren't they required to be available on a 24-hour basis to get that availability pay? >> they are required. but the difference between that statute and my understanding of it, because i don't administer it, and what's contemplated her0 is this compels a ten-hour 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 don'd 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 i'll 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 don't 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 we're going to e compensate people who are not hn doing things that are required extra time that they get paid ip that. so you don't have -- in your written answers to our committee, you said that you would support that.mmittee i'm trying to get you to answer that question now. >> so i think it's 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 that's important.at and we're 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 that's a refinement we're growth w. we think it's important given the growth we've had, the increase in capability.creasi we totally agree the environmeng has changed. but it is still a dynamic place and overtime we'd like to be in a position that says here is th where all those hours were and o we'd 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 -- you're 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? >> they're independent in the du sense that one was started in we c to reform the situation that we're in.r and to the extent that we can improve the auo condition, we're 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 they're being used, buti it will also inform the secretary's work and the task that he's given us to reform hai this issue going forward. we'll be able to quantify and justify the hours as they're g t being used. q >> okay.being us all right. i just have a couple other t int pieces of paper i'd 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. we've 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 department-wide 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 we're 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 it's beyond eight hours, it's s still being paid at straight sio time. so, in essence, you are just changing the base pay. what you're doing is you're teet guaranteeing -- you're putting r guarantee in there that this is what we are going to make which is what we don't 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 what's contemplated in the n't e legislation better supports irregular work but it also gives us management controls that i sr don't 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 they're putting in each day. >> mr. hamrick, do you believe -- and i don't 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 it's 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 doesn't want to reduce pay, and i believe both of you, okay? the question becomes if we -- i'm 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, it's 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. we're 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 don't hear about and most of the folks that live closer to the border than i do don't hear about.han i do i don't speak for senator senatr mccain, and it's too bad he isn't 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. that's 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 that's 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. they've 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 what's contemplated here, flsa was not going to be remuneration going and they were concerned and i'll let brandon speak for themselver but the concerns we heard was wr there wasn't 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 we're 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, it's free. it's 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 i'm 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 didn't 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 that's what this legislation does. this gives us what we call back-end 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 you'd like to take more time. a question on operational tempo, the number of shifts worked per day, if i could. and i think i'll 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 ten-hour shifts at many locations rather than four eight-hour 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 ten-hour shifts is a moren cost-effective approach to securing the border even if pre administratively uncontrollable overtime may not properly be used for routine activities. that's a quote.ti and a couple questions, if i could. mr. vitiello, i'd like to ask lw you to explain why the border patrol believes that using three shifts instead of four is a more cost-effective 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 it's better to have three with the rd overhead, the managers, and thes supervisors versus four or five to predict and then schedule that overlap. it's better to have a redict three-shift model.etter when you have a three-shift 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 -- it's not -- thec rubric doesn't allow for relief to be paid for using auo. whatever system we went going forward, it's 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.i'm you address this at least in go part, but i'm 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 it's 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 it's more cost-effective. you hahave to hire more agents to get the same level of deployment across the 24-hour period. of >> and, finally, mr. vitiello, how will the tester/mccain bill that we're considering today impact your ability to schedule fewer shifts and thus deploy additional agents to the border each day?ontempla >> what's 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 day's deployment, the next shift's 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 they're 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 that's 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 don't 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 won't get this problem solved. and the ultimate thing that will happen if we don't get this problem solved is our borders e will be less secure, we'll be ss looking around pointing our fingers at you guys saying, why didn't you do this or why didn't you do that when, in fact, it's 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 don't 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? >> i'm going to confer with dr. coburn. we'll let you know later this week. >> later this week we ought to have a markup on this bill, mr. chairman. >> i'll confer with dr. coburn, we'll let you know later this week and we'll 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. we've got people out here that t are probably watching us on o c-span right now wanting to knoo what we're going to do. we have folks who work for cbp that like their job, are proud of their job, and that if we don't set some certainty down for these folks, they're going r to go to work somewhere else. we need to fix it so it can be audited, so that we know what we're 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. we've 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 there's ow been a lot of discussion about whether or not -- if this bill saves as much money as we're 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 doesn't save one thin dime, if it's 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 couldn't, but ii we'll put our heads together and talk this week and if we can do it early this week, we'll do itp early this week.u >> i'm free tomorrow afternoon,w just so you know. >> all right. that's good. i'm getting your drift. all right.be my la this might be my last question u and it deals with the surge that we've seen in unauthorized rg migration from central america, particularly the record numbers of unaccompanied minors that art coming and the effect they're having on the border patrol's re ability to carry out other parts of its mission. surge specifically i think he noted that the surge we're seeing is, i think this is a quote, compromising dhs's 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, i'm 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 patrol's capacity to carry out its mission? start with that and then i'll 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 72-hour clock runs out, we were insufficiently prepared to do that, given the f space that's available there. that's 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. it's 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 we've 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 patrol's capacity to deas with the surge in migration we're currently seeing as well as other threats in the border region?ll as ot and i think you've addressed this at least in part, if you want to take another shot at it and i'm 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 three-shift model to a four-shift model or more.rce and then you're pulling hours e out of the workforce in order not to make payments to agencies so you're 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 can't be the way forward. the work set that's down there, and in other places, we can't continue to do that. w so, we've reduced those costs for -- to meet the targets in '13 and attempted to do the same in '14, but there are certain locations where that's just noth an acceptable risk anymore. t >> mr. judd, any thoughts on this? >> absolutely. with to those that are watching on c-span, to keep this in layman'c terms, what we're seeing with this surge that's coming over in rgb, it's pulling agents out ofd the field. they're no longer patrolling tha theyer.re they're having to deal with this huge influx of minors that are e coming in. h they're having to process them, watch them, feed them, they're 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 don't have the facilities to manage the nat influx of crossings, they're nof sending them to places like el paso, the tucson sector. and what that's doing, that's also pulling resources out of ti the field, border patrol agents out of the field that would normally be patrolling the border and they're now having to do those same things, process these illegal aliens, they're having to watch them, feed themd take care of all of the needs th while they're in our custody an what it's doing is it's straining, to the breaking point, the number of agents that we're able to deploy out into tu the field. and it's 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 it's, 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 don't have to shrink hours in order to reduce those e payments that budget picture.yig >> in essence, you'll be paying me the same amount of money to work ten hours, as what you're currently paying me to work 9.3 hours. rrenurs and and that's why the additional 1,000, 1200 agents comes in. because you're paying the flsa right now, i'm only able to work 9.3 hours because we have this o overtime budget and we can't exceed that overtime budget. s overti so i'm 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 long-term, may cost money, because of additional pension payments. can somebody just speak to -- in fact all of you are welcome to address that if you'd 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 >> that's 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 wouldn't change anything. it wouldn't cost more. it wouldn't cost less. the pension would be the same. >> all right. chief? >> it isn't a change as it relates to auo payments or othee statutes that are out there like l.e.a.p. >> okay. i think we're going to wrap it up here. i think we have to start some votes over in the senate. and we're -- 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, that's until june 24th at 5:00 p.m. for submission of statements and questions for the record.d urgem i'm 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, it's been a good hearing and i'm appreciative of the time that'sa 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. here's 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 i'm 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 that's sort of been filtered through, immigrant children believe they can cross the border and stay here. they're saying that -- >> i wouldn't 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 there's 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 shouldn't get done. that extends to the thoughts of minors who don't 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 we've been dealing with this influx that we've 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 they're 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? >> it's not kids -- it's 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 we're 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 that's a long standing practice and not anything new, and that's not related to this recent influx of unaccompanied minors. does that make sense? >> watch this briefing and all of our events at our website, c-span.org. sunday's new book, sundays at 8:00, includes kenneth feinberg. >> from the perspective of the victims, i don't see any distinction. if you try and justify my program of the basis of the victim's loss, i can't 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 c-span's "sunday's at 8:00." now available for a father's 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. we're 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 rolls-royce who make it possible for us to make this series available to the policy community in washington and we're very delighted to have mike vickers with us this morning. i was serving up in the armed services committee when, i think -- gosh, i can't 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 it's been a masterful service, mike. we've been lucky as a country to have you at this crucial time. i know it's been a challenging and worrying assignment, but you shouldered it so wonderfully and the whole community is grateful for what you've done. we're 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. i'm qualified now on this thing. okay, so i'm going to talk about these four topics and given that this is a military strategy forum, i'm 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

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