U.S. Office of Special Counsel  1730 M Street, N.W., Suite 218  Washington, D.C. 20036-4505

OSC Finds Border Patrol Violated Law, DHS Settles 

FOR IMMEDIATE RELEASE - 5/23/06
CONTACT: LOREN SMITH, 202-254-3714, lsmith@osc.gov
    
     On May 11, 2006, the Department of Homeland Security settled a personnel complaint alleging favoritism. The complaint was filed by the U.S. Office of Special Counsel (OSC), a watchdog agency.

     OSC charged that the Border Patrol (now part of DHS) violated 5 U.S.C. § 2302(b)(6), when it granted an unauthorized preference during competition for promotions to border patrol agent (BPA) Michael Knowles; and 5 U.S.C. § 2302(b)(12) by assigning Mr. Knowles duties outside his position of record and authorizing administratively uncontrollable overtime pay (AUO). OSC’s petition was filed on January 9, 2006, with the Merit Systems Protection Board.

     According to the complaint, Mr. Knowles has been assigned to work outside of his position of record as a border patrol agent since approximately 1990, when he was unofficially detailed from a GS-9 BPA position at the Laredo Sector North Station and assigned to work exclusively on setting up computers and other telecommunication equipment at the Laredo Sector Headquarters. The complaint also charged Mr. Knowles continued to work in the technology field for the next fourteen years; however, his official BPA position description was never changed and he continued to receive law enforcement pay and benefits. Mr. Knowles has allegedly been promoted up through GS-13 Supervisory BPA and has been receiving AUO premium pay from at least as far back as 1995 even though he has not been performing law enforcement duties.

     In the settlement agreement, DHS agreed that Mr. Knowles was detailed to perform IT duties which fell outside of his official Border Patrol Agent position description. Accordingly, DHS agreed to change Mr. Knowles’ Official Personnel File to reflect the 9-year detail. DHS further agreed that based upon the duties Mr. Knowles was performing, he should not have been recruited and retained in a supervisory capacity from the time he was promoted to GS-11 to the present. Therefore, DHS agreed to reassign Mr. Knowles to a properly classified non-supervisory position. DHS additionally agreed to 1) update its policies and procedures regarding AUO to reflect how managers will administer the program 2) work with OSC to assure training for all Border Patrol supervisory employees and 3) agreed to issue letters of counseling to appropriate Border Patrol managers advising them of their responsibilities and the proper procedures associated with assigning/promoting employees to higher level work and positions.

     Special Counsel Scott Bloch said, "This is a classic case of doing what you want to promote someone you favor, but the law does not allow favoritism or disregard for promoting through the merit system. The aggressive pursuit of this case before the MSPB sends a message that the administration is serious about the rule of law.”
 

The U.S. Office of Special Counsel (OSC) is an independent investigative and prosecutorial agency and operates as a secure channel for disclosures of whistleblower complaints. Its primary mission is to safeguard the merit system in federal employment by protecting federal employees and applicants from prohibited personnel practices, especially retaliation for whistleblowing. OSC also has jurisdiction over the Hatch Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA). For more information please visit our web site at www.osc.gov or call 1 (800) 872-9855.