Report: Border Patrol overtime, pension plan could backfire long term

Border Patrol agents in the Tucson Sector. All agents have to choose between three pay schedules under a plan to rein in overtime,but part of that plan aimed at controlling pension costs could cause problems, a GAO report says. (Photo by Josh Denmark/Customs and Border Protection)

WASHINGTON – Border Patrol agents nearing retirement are being locked into a set number of overtime hours under a policy aimed at controlling pension costs that could end up driving scheduling decisions, a recent report said.

The September report by the Government Accountability Office said that Customs and Border Protection’s Pay Assignment Continuity Plan could create an administrative burden” that would not only control agents’ tours of duty but could ultimately drive away potential new hires.

Under the plan, agents are locked into one of three pay and overtime schedules when they get to within three years of their earliest possible retirement date, since pension payments are set according to the average of the last three years of salary.

But the plan does not account for the fact that some agents may work years beyond that first retirement date. It creates “a lack of flexibility in scheduling overtime” that worries both management and labor, who were quoted in the report as saying that “operational decisions should not be driven by retirement pay continuity requirements.”

A Border Patrol spokesman declined comment on the report, but an official with the union representing agents said the Border Patrol plan is no different from any other federal law enforcement agency’s pay system. Shawn Moran, vice president of the National Border Patrol Council, dismissed suggestions that the plan could affect hiring in the long run.

“I don’t think it will negatively affect hiring because it provides for a stable pay system,” Moran said.

Stabilizing pay was the goal behind the Border Patrol Agent Pay Reform Act of 2014, which aimed to cut back on the systematic abuse by agents of administratively uncontrollable overtime, or AUO, while also giving them some certainty over their hours.

AUO was a blanket policy that made sure agents got paid for the irregular and often unpredictable overtime hours that come with the job of patrolling broad swaths of border.

But whistleblowers brought allegations of overtime abuse to light and a 2013 Department of Homeland Security report found that even agents with regular hours were often tacking two hours of AUO a day on top of their eight-hour workday. That “gross waste of government funds” cost taxpayers about $8.7 million a year, according to U.S. Special Counsel Carolyn Lerner.

In response, Sen. John McCain, R-Arizona, and then-Rep. Ron Barber, D-Tucson, introduced legislation that would ultimately become the pay reform act. The act created a three-tiered pay system under which agents can elect to work eight hours a day at their base pay; Level 2, at which they agree to work nine hours and get paid an extra 12.5 percent of their base pay; or Level 1, at which they commit to 10 hours day and get an extra 25 percent of base pay.

Besides giving both managers and officers stability in the schedules, the plan saves money by paying agents at straight time for what would otherwise be overtime pay.

The Pay Assignment Continuity Plan was created as part of the act, requiring the agency to assign officers to one of three pay levels starting three years before retirement eligibility, also known as the control period.

The problem is that the control period could last up to 15 years, depending on the age of the agent when they joined the agency. Border Patrol agents can retire at any age after 25 years of service or at age 50 with 20 years of service. Retirement is mandatory at age 57 with at least 20 years of service.

Even though Moran and the council support the plan, he acknowledged that it does have some “kinks” to work out, including paying canine agents to care for their dogs on their days off.

A spokeswoman for McCain said in a statement that the plan will “require congressional oversight” to ensure the future success of the pay act, “given the significant legislative changes and rulemaking process that took place.”

Rebecca Gambler, who wrote the GAO report, said agency officials are considering potential actions to combat the ongoing issues with the pay plan, but “it’s too early to tell what those actions would be or what the effect might be.”