FINDINGS AND RECOMMENDATIONS
I. POLICIES, EXTENT AND COSTS OF AUO
INS policies agreed with established statutory, regulatory and Department policies regarding AUO. In FY 1996 INS spent $57 million on AUO. Sixteen percent, approximately $9 million, of this amount was earned by employees in grades GS-13 and above who represented less than 10 percent of the individuals receiving AUO. Although applicable policies provide for these grade levels to qualify for AUO, in our judgment the extent of the costs associated with their AUO demonstrates a need for INS to ensure that the benefits derived are equal to or greater than the costs of AUO. Accordingly, INS should re-evaluate its AUO policy to determine if AUO should continue to be offered, and to what extent, to employees in upper grades.
The use of AUO is prescribed by statute, regulation and policy [ See APPENDIX I for details.] as follows.
|Statutory:||5 U.S.C. 5545 (c)(2), Pay Administration, Premium Pay, Public Law 101-173|
|Regulatory:||5 CFR 550.151-163, Administratively Uncontrollable Overtime|
|DOJ Policy:||DOJ Order 1551.4A, Administratively Uncontrollable Overtime, August
1, 1975, including Change 1 dated September 1978
August 1, 1988, memorandum from the Assistant Attorney General for Administration (AAGA) to the Commissioner INS (cites a September 20, 1974, legal opinion from the Office of Legal Counsel)
April 20, 1990, memorandum from AAGA, re AUO
|INS Policy:||October 16, 1992, memorandum from the Commissioner re Overtime
INS Administrative Manual, Section 2979, Administratively Uncontrollable Overtime, dated November 30, 1989
Prior to our onsite audit work, we interviewed INS officials at Headquarters and conducted telephone surveys of INS officials from 19 of 61 [ Three regional offices, 33 district offices, 21 border patrol sector headquarters offices, and 4 service centers.] offices to gather data on policies followed, training provided in AUO and procedures for documenting eligibility, conduct and payment of AUO. [ See APPENDIX II for the offices queried, the questions asked, and the frequency of responses.] Personnel at the surveyed sites stated that they followed the prescribed policies cited above. Additionally, the Western Region and the Tucson Border Patrol Sector also developed and followed local policies and procedures. These procedures expanded on the requirements for AUO, they did not contradict the established policies. Following are examples of the responses we received regarding policy interpretation of AUO at INS.
AUO is used by border patrol agents performing day to day tracking, time sensitive tracking, or sensor problems at the border.
If after an 8 hour shift, an uncontrollable situation occurs, such as alien movement or tracking, AUO is paid. All overtime earned is AUO except when there is a scheduled bus run from the central location to the borders to process illegal aliens over the border. The bus run is over 400 miles and takes over 8 hours per day. In this situation, the detention officers earn 45 Act overtime.
AUO is used for uncontrollable work. For example, sector staff may be required to: address an INS Headquarters request with a short turn-around time; complete alien arrests; or remain on duty until relieved.
AUO is used when law enforcement personnel need to stay at their job longer than their normal shift. For example, an officer may arrest a number of people just prior to the end of the shift, but in order to process them, overtime is needed.
When a situation occurs during the administrative workweek, and the event was unforeseen and could not be scheduled in advance of that workweek, AUO is earned.
Notwithstanding INS efforts to ensure that its policies are consistent with statute and regulation, policy can only be implemented properly if employees understand the policy and know how to apply it. Management of INS recognized this as an issue during a 1995 review by the INS Human Resources Branch at the Florence, Arizona Service Processing Center. The INS established and implemented a training plan to educate its employees on the proper handling of AUO. [ See APPENDIX III for INS actions relative to its review at Florence and offices receiving training. ]
Extent and Costs of AUO
The August 1, 1988, memorandum from the AAGA authorized the INS Commissioner to extend AUO coverage from the categories in the Order to immigration officers [ Per Title 8 CFR Section 103.1, defined as immigration inspectors, immigration examiners, border patrol agents, airplane pilots, deportation officers, detention officers and guards, investigators, and attorneys.], except for general attorneys, contact representatives, and applications adjudicators. The DOJ Order had provided for airplane pilots engaged in air-to-ground border patrol activities, border patrol agents, criminal investigators, general investigators (GS-9 and above), officers-in-charge of INS domestic offices who are engaged in investigative duties, and immigration officers in a foreign area who are engaged in investigative duties. Accordingly, as of the October 1992 policy memorandum from the Commissioner, the following positions were eligible for AUO.
|Position Title||Job Series|
|Aircraft Pilot engaged in Border Patrol activities||2181|
|Supervisory Aircraft Pilot||2181|
|Helicopter Pilot engaged in Border Patrol activities||2181|
|Border Patrol Agent||1896|
|Supervisory Border Patrol Agent||1896|
|Supervisory Criminal Investigator||1811|
|Supervisory Deportation Officer||1801|
|Supervisory Detention and Deportation Officer||1801|
|Detention Enforcement Officer||1802|
|Supervisory Detention Enforcement Officer||1802|
|Detention and Investigative Support Officer||1802|
|Deputy District Director||1801|
|Immigration Officer engaged in investigative duties||1801|
|Officer in Charge engaged in investigative duties||1801|
|Assistant Officer in Charge engaged in investigative duties||1801|
|Senior Immigration Inspector engaged in field investigative duties||1816|
|Transportation Enforcement Officer||1802|
|Supervisory Transportation Enforcement Officer||1802|
To identify the distribution of AUO costs by job series, grade and location, we used a Summary of Administratively Uncontrollable Overtime Pay Report (Summary AUO Report) prepared by the Justice Management Division (JMD) who generated the report from payroll data provided by the National Finance Center (NFC). [ In accordance with requirements of the General Accounting Office, we performed a reliability assessment of the financial information in the report. See the Scope and Methodology section of this report for details.] According to the Summary AUO Report over 6,600 employees in field units earned $54 million (95 percent) in AUO, and approximately 300 INS Headquarters employees earned nearly $3 million in AUO. Following is a summary of AUO by series, number of employees, and amount.
FY 1996 AUO
|Series [ Job series reported by NFC is a s of the last pay period for FY 1996. An employee may have changed grade or job series during the year . For instance, the 301 and 340 series employees were district directors and deputy district directors who were eligible for AUO by title and being converted to series 1811. Accordingly, we designed our audit steps to ascertain the individuals series when AUO was earned.]||No. of Employees||Amount|
|Unclassified (a)||107||$ 327,111|
(a) No job series or names provided in data.
Source: Summary AUO Report.
As shown, 72 percent of employees earning AUO are GS-1896 Border Patrol agents. These employees earned about 74 percent of AUO paid for FY 1996. The table also identifies 146 employees in the GS-1811 Criminal Investigator series who earned AUO for FY 1996 when availability pay [ In October 1994 availability pay replaced AUO as premium pay that applies to criminal investigators for unscheduled overtime duty. It is fixed at 25 percent.] was the standard for criminal investigators. We provided INS officials with the list of the 146 INS employees in the GS-1811 series who were paid AUO in FY 1996. INS officials found that the majority of employees listed had been assigned to GS-1811 series positions during the fiscal year and had earned AUO in their previous positions (e.g., GS-1896, GS-1801, etc.). Others were temporarily promoted from GS-1811 positions to positions that entitled them to AUO. However, INS found 24 criminal investigators that were earning AUO at the end of the fiscal year. According to INS personnel, it appeared that personnel actions to terminate the payment of AUO were not processed. Administrative processing centers reviewed the 24 cases and found that the individuals were paid AUO in lieu of, not in addition to, availability pay. INS took corrective action during the audit to ensure that the 24 individuals were coded properly to receive availability pay, not AUO.
We also identified AUO costs by grade for all those earning AUO, and separately for the 1896 Border Patrol Agent series. The following table provides the information.
Distribution of AUO by Grade
|Grade||1896 Series||All Series||1896 Series||All Series|
|SES [ SES employees earned
AUO prior to gaining the
rank of SES. No employees
who are currently SES
|2||5||$ 19,010||$ 60,710|
(a) One of the 107 unclassified records included the grade but not series.
Source: Summary AUO Report.
Employees who were GS-9s were the most frequent and greatest recipients of AUO. Generally, this occurred because the GS-9 grade is the journeyman level in the Border Patrol. However, as shown in the chart, 638 employees in grades GS-13 and above accounted for approximately $9 million (16 percent) of the $57 million spent by INS on AUO during FY 1996. Therefore, less than 10 percent of the individuals receiving AUO accounted for approximately 16 percent of the total AUO costs incurred. We recognize that the DOJ Order does not prohibit supervisors, who are normally higher graded employees, from earning AUO. [ DOJ 1551.4A, paragraph 8.a.(2).] However, the extent of the costs associated with their AUO, and the fact that the earned amounts are used to increase annuity benefits after retirement from Federal service, demonstrate a need for INS to ensure that the benefits derived are equal to or greater than the costs.
We recommend that the Commissioner, INS:
1. Re-evaluate INS AUO policy in order to determine whether employees in upper grades should remain eligible for AUO.
II. ELIGIBILITY CRITERIA AND PAYMENT OF AUO
INS could not demonstrate that AUO was used to compensate employees for unscheduled, uncontrollable overtime. INS did not require, or develop procedures for, offices to document actual hours of daily AUO against qualifying tasks. As a result, for 95 percent of the employees sampled, we found either no documentation or insufficient documentation to substantiate that overtime worked was uncontrollable, as defined in INS guidance. Further, 36 percent of the employees we sampled did not have AUO eligibility certificates on file although INS policy provided for such.. Compounding this weakness, supervisors did not assess the actual duties of the employees to determine if, for each employee supervised, the overtime was uncontrollable. As a result, the Department has no assurance that INS incurred AUO only for uncontrollable events.
We reviewed AUO of 202 selected employees at 4 border patrol sectors, 2 district offices, and headquarters (see SCOPE AND METHODOLOGY section of this report for details). We reviewed documents at the selected offices to determine: (1) eligibility and level of reimbursement, and (2) if the type of work performed during AUO hours was tracked and identified against INS AUO criteria and approved by supervisors.
AUO Eligibility and Percentages of Reimbursement
At the seven offices selected for review, we attempted to locate certificates [ Requirements for the certifications are included in the AUO guidance package attached to the October 16, 1992 memorandum from the INS Commissioner.] of eligibility that identified the employee, job classification, period of eligibility, and percentage of eligibility. The following table provides the results of our review of the files at the selected offices.
|Number of "Yes" Results|
|Number of Individuals Reviewed||10||14||178||202|
|ELIGIBILITY - (INS AM 2979.04)|
|Is a certificate of eligibility on file?||7||8||115||130|
|Did the certification provide for AUO approval of one year or more?||4||6||86||96|
|Is the employee a:|
|Border Patrol Agent (GS-1896)?||5||0||172||177|
|Deportation Officer (GS-1801)?||5||3||0||8|
|Detention Officer (GS-1802)?||0||5||6||11|
|Other eligible job classification?||0||6||0||6|
As shown, 72 of the 202 employees (36 percent) did not have eligibility certificates on file. Generally, we found that INS purged eligibility certificates in 1994 without replacing them; employees transferred among offices without the certificates accompanying them or new ones being provided at the receiving location; and certain offices used the payroll computation process to document eligibility. These eligibility documents are important because they help establish the level of AUO before the employees begin to actually incur the AUO. More importantly, they serve as authorizing documents to solidify agreement between employees and supervisors regarding the level of AUO.
For purposes of determining the AUO percentages cited for the employees, we reviewed eligibility certificates (or other available documents) and time and attendance records. The following table provides the results of our review of eligibility certificates. For those individuals included as unknown, we found no information that indicated a specific eligibility percentage.
Frequency of AUO per Eligibility Documents
|Number of Individuals|
|AUO Percentage||HQ||Districts||Sectors||Total||Percentage of Total|
As shown, about 83 percent of our sample was certified to earn the 25 percent maximum allowable rate for AUO. After the eligibility percentage was established, it appeared that oversight was limited to reviewing the number of overtime hours worked, not the nature of the overtime. According to INS officials, after the AUO reimbursement rate is established in the eligibility period, actual hours worked in subsequent pay periods are compared to the number of hours expected based on the approved reimbursement rate. Rates are adjusted in later pay periods to reflect differences. Notwithstanding the review of the number of hours worked, we had concern with how rates are determined for an individual employee at the beginning of eligibility and how the rates are modified to reflect changes in employees actual job assignments. INS officials offered that they use past job performance for the job series to determine these rates.
According to Department guidance, AUO is to be authorized on an employee by employee basis, not for a class of employees. We found no documentation that demonstrated how supervisors assessed planned or actual work for each employee to establish if AUO was warranted and the appropriate eligibility levels for each employee. Therefore, we cannot attest to the reasonableness of the process used or the rates of reimbursement.
Notwithstanding this lack of documentation, we also tested the percentage rate of AUO to determine if employees were earning AUO in excess of the rate authorized by the eligibility certificates. Our testing included comparing eligibility certificates, or any other documents that cited the percentage of AUO authorized for the employees, to time and attendance records and time and effort records. We compared overtime transactions from four pay periods to eligibility certificates to determine if the 202 employees were earning AUO at their authorized rate. Our testing determined that employees overall were generally earning AUO at the rate established in their eligibility documents. [ See APPENDIX IV for details of this review.]
Identification of Overtime to AUO Criteria
In order to test whether work qualified as AUO, we traced transactions in the same four pay periods to source documents. The documents included time and attendance reports, time and effort reports, and any other available documents that would demonstrate that overtime work performed was uncontrollable. The following table provides the results of our review.
|Number of "Yes" Results|
|Number of Individuals Reviewed||10||14||178||202|
|Amount of AUO Earned in FY 1996||$131,073||$71,976||$1,425,344||$1,628,393|
|A. From available documentation:|
|1. Do task(s) performed satisfy INS AM 2979, Ex. 3, par. 8a (Qualifying Duty) and 8b (Non-qualifying Duty)?||3||12||164||179|
|2. Is type of work performed during pay periods identified?||8||14||174||196|
|3. Can work performed during overtime be identified?||9||3||72||84|
|4. Could overtime be determined as uncontrollable?||3||2||6||11|
|B. Did the supervisor sign the:|
|1. documents evidencing time and effort reported by employees?||10||10||160||180|
|2. time and attendance reports?||10||11||164||185|
|Amount of AUO Unsupported Based on Query A.4.||$97,138||$56,698||$1,370,661||$1,524,497|
As shown, the records for only 11 of the 202 individuals substantiated that the actual work performed was uncontrollable. Accordingly, we questioned as unsupported the amounts of AUO incurred for 191 individuals. This does not mean that evidence did not exist to demonstrate that the employees actually worked the additional hours associated with the earned overtime. It means that INS records did not provide evidence that the tasks performed during overtime hours were uncontrollable. INS procedures did not provide for a methodology for employees to identify and record actual overtime hours against specific activities that qualified for AUO.
Time reports indicated that employees were at duty stations during periods of overtime. However, the records did not identify the tasks performed during the period of overtime to allow supervisors the opportunity to determine if the actual tasks were indeed uncontrollable in accordance with established INS policy and procedures. Notwithstanding the preceding, our results also disclosed that time and effort reports and time and attendance reports lacked evidence of supervisory signatures in 22 and 17 instances, respectively. This control weakness needs to be addressed by INS to ensure that work performed by employees is validated on a regular basis.
The results above do not agree with statements by INS officials during our pre-site work survey. Officials from 15 of 20 INS offices indicated that they maintained a log or other record of AUO, and 12 offices indicated that they documented descriptions of AUO work for each occurrence. However, during our on site audit at the selected 7 offices, we found that time and effort documents did not always identify the type of work performed by the individuals during the AUO hours. Further, we found a pattern of employees simply reporting daily that 2 hours were spent on overtime. This practice substantiates our results and brings into question whether the hours were uncontrollable.
In April 1996 the OIG issued a report regarding the use of AUO by INS at the INS Service Processing Center at Florence, Arizona. The OIG concluded that AUO policies were not well implemented by INS. This opinion was also included in a prior internal review by the INS Human Resources Branch. The resultant report by INS indicated that the work performed in Florence at the time of the review did not meet the basic AUO eligibility criteria. Our review further confirms the findings made by the OIG and INS in these previous reviews.
We recommend that the Commissioner, INS:
2. Design and implement a review process to ensure that office heads maintain certificates of eligibility at the duty locations for all employees who receive AUO, and that re-certifications are completed each year.
3. Establish and implement procedures to ensure that employees earn AUO only for uncontrollable overtime.
4. Require office heads to ensure that supervisors approve time and attendance reports and time and effort reports of employees under their supervision.
STATEMENT ON COMPLIANCE WITH LAWS AND REGULATIONS
We have audited the use of AUO in the Department. The audit was limited to the INS because the agency accounted for virtually all of the Department's recorded AUO expenditures in FY 1996. In connection with our audit, we tested transactions and records to obtain reasonable assurance about INS' compliance with laws and regulations that, if not complied with, we believe could have a material effect on the use of AUO.
We conducted our audit in accordance with generally accepted government auditing standards. Those standards require planning and performing the audit to obtain reasonable assurance about whether INS had, in all material respects, complied with the applicable laws and regulations. An audit includes examining, on a test basis, evidence about INS' compliance with laws and regulations. The specific laws and regulations against which we conducted tests are identified in APPENDIX I to this report.
The results of our tests indicate that for the items tested, INS complied with the provisions of the laws and regulations referred to above except as indicated in the FINDINGS AND RECOMMENDATIONS section of this report. With respect to the transactions not tested, nothing came to our attention that caused us to believe that INS was not in compliance with the laws and regulations cited in APPENDIX I.
SCOPE AND METHODOLOGY
We conducted our audit in accordance with Government Auditing Standards issued by the Comptroller General of the United States and, accordingly, included such tests of the financial records and other auditing procedures as were considered necessary to accomplish our objective. However, we may not be considered by others to be completely independent of INS as required by the standards, because INS has reimbursed us for work that pertained to INS fee-supported programs. The Office of Management and Budget and the Department of Justice (including the OIG, INS, and the JMD) disagree with INS funding our work and are attempting to have the funds appropriated directly to the OIG. In FY 1996, the OIG received $5 million for fee-related audits, investigations, and inspections. The dollar amount funded approximately 14 percent of the total OIG staff positions. Nonetheless, we consider ourselves independent and do not believe that our reimbursement arrangements with INS have had any effect with regard to our conduct of this audit.
The purpose of our review was to determine the extent and use of AUO during FY 1996 in the Department. In accordance with Amendment 5251 of the Treasury, Postal Service, and General Government Appropriations Act, 1997, our audit objectives were to examine the policies, extent, costs, and other relevant aspects of the use of AUO and determine whether the eligibility criteria of the Department and INS, and payment of AUO complied with Federal statutory and regulatory requirements. We excluded the INS Florence, Arizona Service Processing Center as a result of the prior reviews.
For purposes of determining the extent of AUO and developing our audit plan, we used a Summary AUO Report prepared by JMD from payroll data generated by the NFC. To determine the reliability of the NFC database, we reviewed the internal control audit report on the NFC payroll data inputs performed by the U.S. Department of Agriculture, Office of the Inspector General. [ Audit Report No. 11099-1-FM, dated February 1996.] In our opinion, the results of the audit of the internal controls at NFC of the payroll system indicated that they are adequate and risk is moderate to low.
We performed limited data testing to verify that INS employees were receiving AUO premium pay as identified by NFC payroll data in FY 1996. We selected a random sample of INS employees located at INS Headquarters, and judgmentally selected district offices and Boarder Patrol sectors. Our verification included the following steps:
1. We obtained applicable time and attendance worksheet and reports for each employee selected for audit.
2. We reviewed the documents to determine whether the employee was receiving AUO premium pay and the percentage of premium pay during the pay period.
3. We determined whether the NFC data accurately recorded the INS employee as receiving AUO premium pay.
Based on our assessment, we concluded that the data in the NFC database could be used to address the objectives of the audit.
For purposes of our on site review, we identified those offices in INS that incurred the preponderance of AUO in FY 1996. This permitted us to select a sample of employees who earned AUO for testing against eligibility criteria, percentage of AUO certified for reimbursement, and the work performed against criteria established by INS. We reviewed AUO certifications, time and attendance sheets, time distribution sheets, and any other documentation that would demonstrate the level of AUO certified and worked, and the actual work that was performed against INS criteria.
We selected employees from four Border Patrol Sectors (San Diego, El Paso, McAllen, and Tucson), two District Offices (San Diego, and El Paso) and INS Headquarters personnel located in Washington, DC. The four sectors selected for review employed the majority of personnel who received the largest amounts of AUO pay according to the Summary AUO Report. We selected the District Offices and Headquarters personnel in order to cover other INS field activities and activities in Washington, DC.
For purposes of our pre-fieldwork interviews of personnel at Headquarters and 19 field offices, we developed a questionnaire and solicited responses from responsible officials at the INS offices listed in Appendix II. The purpose of the survey was to gather data on policies followed, training provided, procedures for documenting eligibility, and conduct and payment of AUO.