U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036-4505
Border Patrol Violated Law, DHS Settles
FOR IMMEDIATE RELEASE - 5/23/06***
CONTACT: LOREN SMITH, 202-254-3714,
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
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.”
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.