Letter to Hon. Kiran Ahuja, Director, Office of Personnel Management - Grassley Probes Reported Pay Abuse At Federal Law Enforcement Agencies

Letter

Dear Director Ahuja:
I am writing you to request information about a letter that was electronically signed by Office of
Personnel Management (OPM) Associate Director Mark Lambert in November of 2020. For
your reference that letter is enclosed. The purpose of that letter was to notify the Department of
Justice (DOJ) that "effective immediately, the position classification authority of Alcohol,
Tobacco, Firearms, and Explosives (ATF), a component of the Department of Justice (DOJ) is
partially suspended."1
The letter goes on to note that a review of workforce data found
"numerous positions missclassified [sic] to the General Schedule (GS) 1800 law enforcement
occupational family."2
The letter notes that "DOJ will be notified when OPM has determined it
is appropriate to restore ATF's independent authority to classify positions to the 1800 job
family."3
The OPM letter notes the workers in those positions performed exclusively administrative duties
and identifies that "approximately 94 ATF personnel"4
filled the misclassified positions. This
letter, combined with other information I have recently become aware of, raises the possibility of
many serious issues related to OPM's findings that merit greater scrutiny. The OPM letter to
DOJ notes that "OPM will be referring ATF to the Office of Special Counsel (OSC) for
investigation of prohibited personnel practices ATF may have committed in taking these
actions."5
I have also been provided a letter from OSC to a whistleblower that notes that OSC
has requested that the Attorney General conduct an investigation into two main issues. This
letter is also enclosed. The first is that several ATF positions within Human Resources and Professional Development (HRPD) were misclassified in violation of federal law. This
allegation appears to be reflected in the enclosed OPM letter.
Another issue identified by OSC is the possibility that workers filling the misclassified positions
were able to earn enhanced benefits to which they were not entitled, namely enhanced retirement
eligibility and Law Enforcement Availability Pay (LEAP). According to information posted on
OPM's webpage, "Availability pay is a type of premium pay that is paid to Federal law
enforcement officers (LEO's) who are criminal investigators. Due to the nature of their work,
criminal investigators are required to work, or be available to work, substantial amounts of
"unscheduled duty.'"
6

The information contained in the letter from OPM signed in November of 2020 raises many
serious questions that I would appreciate your assistance in answering:
1. Please provide a copy of the human capital management evaluation of ATF's
performance management system conducted by OPM's Agency Compliance and
Evaluation, Central Group, that concluded on September 18, 2020.
2. What prompted OPM to conduct this human capital management evaluation?
3. Is the partial suspension of ATF's position classification authority still in effect? If not,
how did OPM determine it was appropriate to lift the suspension?
4. Please describe in detail how the skills of workers in misclassified positions diverged
from the skills necessary to fill these positions once properly classified.
a. Is the misclassification solely due to the nature of the positions the employees
were filling?
b. Do the employees meet background or qualification requirements to fill criminal
investigator positions?
c. What specific knowledge, skills, and abilities were the employees lacking?
d. What was the rationale given by ATF for these employees filling positions within
HRPD?
5. The OPM letter identified 94 misclassified positions. Are these the total number of
misclassified positions within all of ATF, or was the audit limited in scope?
6. In the past 10 years, has OPM suspended classification authority for ATF or any other
agency within the DOJ or across the government? If so, which components or agencies
and when?
7. In the past 10 years has OPM made any other referrals to OSC for suspected or potential
prohibited personnel practices? More specifically, has OPM made any other referrals to
OSC or to an Inspector General for the same or similar fact patterns, such as the
misclassification of positions?
8. Has OSC or the DOJ Inspector General taken any action in response to the letter or
referral to OSC? Please provide a copy of the referral to OSC along with any information
on this matter subsequently provided to OSC or the DOJ Inspector General.
9. What is the total value of benefits such as LEAP and enhanced retirement eligibility that
were inappropriately provided to misclassified employees? Please provide an itemization
of your response broken down by individual position and type of benefit.
10. According to information posted on OPM's webpage, "a criminal investigator is also
entitled to availability pay if he or she holds a supervisory or administrative position that
has been officially approved as a "secondary position' under the LEO retirement
provisions, even if the criminal investigator is not personally covered by those
provisions."7
Were the misclassified positions officially approved as secondary positions
under LEO retirement provisions?
11. ATF provided certain employees with a memo dated May 15, 2021, informing them that
ATF was required by OPM to reassign those workers to properly classified positions.
Attachments to that memo asked employees to rank their choices to 1) remain in 1800
series or law-enforcement positions, 2) be reassigned out of 1800 series positions, or 3) to
retire in their current positions pending OPM approval. That memo and attachments are
enclosed.
a. Did OPM grant approval for any misclassified workers to be reassigned to or
allowed to retire in their current positions?
b. If OPM allowed any misclassified workers to retire in their positions, did they
retire with pay and benefits reflecting an 1800 series worker or with the pay and
benefits of the role they retired from, once properly classified?
12. Did the employees filling the misclassified positions have any expectation of rotating or
returning to a properly classified 1800 series position, or of being available to perform
any law-enforcement function while serving in the misclassified position?
13. How long have positions been misclassified by ATF? Over the period of time positions
have been misclassified, how many positions and staff have been impacted in total?
Clearly OPM believed this to be a serious matter given its referral to OSC and the fact that the
DOJ Inspector General is copied on the letter. Please provide answers to these questions and
work with my staff to schedule a briefing on this matter by Wednesday, October 20, 2021.
Thank you for your attention to this important matter.
Sincerely,

Source