Grassley, Ernst Demand Corrective Action for ATF’s Illegal Scheme to Misclassify Law Enforcement and Fleece Taxpayers

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Iowa senators Chuck Grassley and Joni Ernst are calling for accountability and a full review of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF’s) unlawful misclassification of administrative positions as “law enforcement.” Not only was this decades-long practice illegal, but it also burned millions of taxpayer dollars.

ATF for years turned a blind eye to classification errors, even after whistleblowers brought it to management’s attention as early as 2018. This maladministration resulted in up to $20 million in overpayments to at least 91 employees who erroneously received enhanced law enforcement salaries and benefits while performing human resources, administrative and other non-law enforcement duties.

ATF recently regained the authority to classify positions as “law enforcement” after a 2020 suspension due to its unlawful human resources practices. In light of ATF’s restored authority, Grassley and Ernst today made internal ATF records public and urged the ATF and Department of Justice to hold accountable the ATF managers who permitted the misclassifications. Further, the senators raised concerns of alleged agency retaliation against the whistleblowers who brought ATF’s wrongdoing to light. Lastly, in response to whistleblower disclosures claiming hundreds of additional ATF employees may have been misclassified – and millions more taxpayer dollars misspent – the senators requested an expanded evaluation of ATF’s classification procedures.

“Appropriate corrective action must be taken in regards to all employees that allowed taxpayer dollars to be wasted after notification of the aforementioned misconduct,” the senators wrote. “The American public must know ATF will not revert to its previous impropriety after the restoration of its classification authority.” 

In a separate effort to correct harmful ATF practices, Grassley and Ernst grilled the agency for inappropriately targeting federal firearms license (FFL) holders and stifling Second Amendment rights by abusing its federal regulatory powers.

The senators’ letter follows:

January 30, 2024

VIA ELECTRONIC TRANSMISSION

The Honorable Steven Dettelbach
Director
Bureau of Alcohol, Tobacco, Firearms, and Explosives
The Honorable Jolene A. Lauria
Acting Assistant Attorney General for Administration
Justice Management Division
Department of Justice

Dear Director Dettelbach and Ms. Lauria:

We write to you today concerning the Office of Personnel Management’s (OPM) determination to restore the authority of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to classify positions in the 1800 series—i.e. law enforcement positions.[1]  On November 2, 2020, OPM suspended ATF’s classification authority for 1800 positions after finding misconduct from an evaluation of ATF’s performance management system.[2]  This was in addition to the first-hand testimony of two whistleblowers who exposed ATF’s practice of intentionally misclassifying human resources, administrative, and other non-law enforcement positions, as law enforcement in violation of applicable statutory and regulatory law. [3]  According to OPM, “ATF established a requirement for law enforcement employees to perform administrative functions in its headquarters to be eligible to enter leadership positions.” [4]  As a result of ATF’s illegal misclassification scheme, employees assigned to misclassified positions received enhanced law enforcement pay and benefits without performing law enforcement duties, leaving taxpayers to pick up the tab.[5]

On May 2, 2023, the Office of Special Counsel (OSC) reported that subsequent investigations confirmed the whistleblower allegations, finding “substantial waste, mismanagement, and unlawful employment practices at the [ATF].”[6]  According to OSC’s letter transmitting these substantiated allegations to President Biden, OSC stated ATF would work with OPM and the Justice Management Division (JMD) within the U.S. Department of Justice to properly classify the misclassified positions and “ATF’s Internal Affairs Division is currently investigating the circumstances surrounding the implementation of the illegal policies and practices.”[7]  According to OPM’s November 6, 2023, letter to JMD, “OPM suspended ATF’s authority to classify positions in the 1800 job family until such time as all positions identified were properly classified, demonstrating ATF’s adherence to merit system principles, Federal law, and regulation.”[8]  The letter also noted OPM determined that even though ATF admitted it was “unable to provide the necessary evidence and analysis normally required to support its classification determinations,” OPM restored ATF’s classification authority.[9]  On November 8, 2023, Director Dettelbach notified ATF employees that OPM restored its classification authority, and ATF worked to “address the issues outlined in the audit, and to further modernize our HR function.”[10]

We write to you today requesting answers concerning the findings of the ATF Internal Affairs Division investigation and the actions taken to hold those employees accountable who were notified of the illegal misclassification scheme but allowed it to continue.  According to legally protected disclosures made to our offices, ATF management was notified as early as 2018 that the agency’s decades-long practice of misclassifying non-law enforcement positions as law enforcement, including leadership positions, was in violation of the law, but ATF failed to take corrective action.

According to emails from January 2018, then ATF Deputy Assistant Director (DAD) of Human Resources Division, Lisa Boykin, was notified that the position of Chief of the ATF’s Recruitment, Diversity, and Hiring division was misclassified.[11]  The email provides that the classification of this Chief position as an 1800 law enforcement position violated statutory and regulatory provisions because the position performed human resources and not law enforcement duties.[12]  In a follow up email, DAD Boykin acknowledged receipt and stated she would respond to this allegation “as soon as practicable.”[13]  DAD Boykin never responded.

Further, on June 26, 2018, the position misclassification issue was raised with then Assistant Director (AD) Kent Croke of ATF Human Resources during an in-person meeting that was also attended by DAD Boykin.[14]  A follow up email sent that same day to AD Croke extensively described how ATF was in violation of applicable regulatory and statutory provisions because the duties and responsibilities of the employees in certain 1800 positions performed no law enforcement duties as defined by OPM guidelines.[15]  The email also provides AD Croke with two examples involving the U.S. Patent and Trademark Office and the Immigration and Naturalization Service to show “how classification and qualification can go wrong and the result.” [16]  Moreover, an offer was made to set up a meeting between AD Croke and OPM for guidance on ATF’s position misclassification problem and to confirm the allegations raised during the meeting.[17]  Records provided to our offices indicate AD Croke did not take up this offer.  Specifically, email records from July 2, 2018, show AD Croke and DAD Boykin were “upset” at the topic of the proposed meeting and directed that, in the future, issues should be sent up the “chain of command” before being taken to executive management.[18]

In addition, it is also alleged that the illegality of ATF’s position misclassification scheme was raised with JMD prior to OSC’s involvement and the conclusion of OPM’s audit, but JMD failed to take any action.  On July 15, 2019, Michael Sena, the Assistant Director of Human Resource Policy and Advisory Services for JMD, was notified via email that ATF management was aware that human resources positions were misclassified, but ATF took no action to address these statutory and regulatory violations.[19]  The email states that the law enforcement availability pay (LEAP) the employees in these misclassified positions received was an overpayment because the duties of their positions did not meet the definition of law enforcement.[20]  JMD AD Sena responded that he would do some checking, and “get back to you soonest.”[21]  Just like ATF’s DAD Boykin and AD Croke, records provided to our offices show JMD AD Sena did nothing.[22]  After repeated attempts for ATF and JMD leadership to comply with applicable statutes and regulations concerning its misclassified positions, the whistleblowers then notified OSC.  If the ATF and JMD dispute these allegations, we welcome your explanation.

We provide this extensive background of what led to OSC substantiating the whistleblowers’ claims to exemplify ATF management’s long history of failing to take the necessary actions to investigate and correct its misclassified positions when presented with evidence the agency broke the law.  Appropriate corrective action must be taken in regards to all employees that allowed taxpayer dollars to be wasted after notification of the aforementioned misconduct.  The American public must know ATF will not revert to its previous impropriety after the restoration of its classification authority.[23]

The whistleblowers also allege the 91 misclassified positions OPM identified may not represent the full scope of ATF’s illegally misclassified positions.  It is alleged that hundreds of ATF employees from across the country were hired under individual position descriptions OPM identified as misclassified; however, a full audit or review has not been conducted to ensure that all the employees in these positions are performing law enforcement duties and not unlawfully receiving enhanced benefits and pay at the cost to taxpayers. Therefore, while OSC found that ATF’s misconduct led to overpaying employees up to $20 million from 2016-2021, the true cost to taxpayers could be substantially more.[24]  For example, it is alleged that up to 800 employees across ATF Divisions and Field Offices occupy positions OPM identified as misclassified.  Even if half of these positions are misclassified, during the five-year period reviewed by OPM, ATF would have wasted close to $88 million in taxpayer dollars, more than four times the figure OSC identified.

For this reason, ATF and JMD must conduct a comprehensive evaluation and review of all the employees occupying the misclassified position descriptions OPM identified, and look back further than the five years to understand the full scope of ATF’s systematic wrongdoing.  No amount of waste of taxpayer dollars is acceptable.  Taxpayers deserve to know how much of their money was wasted due to ATF’s failure to follow the law.

As Director of the ATF and Acting Assistant Attorney General of JMD, you both should appreciate the actions of the brave and patriotic whistleblowers who risked their careers and livelihoods to stand up and do the right thing.  That is why it is extremely concerning our offices have received credible allegations that ATF engaged in retaliation against the whistleblowers who exposed ATF’s substantial waste, fraud, and abuse.  If these allegations are true, we demand that the ATF cease retaliating against these whistleblowers, commit to not engage in future reprisal, and hold those employees accountable who engaged in the unlawful retaliation.  Whistleblower retaliation is the enemy of a transparent government and corrective action must be taken against all those engaged in reprisal.

So that we may conduct objective and independent oversight of ATF’s actions and efforts to correct its misclassified law enforcement positions and hold accountable those who engaged in misconduct, please provide answers to the following no later than February 13, 2024.

1. Has ATF Internal Affairs Division completed its investigation into the circumstances surrounding the implementation and ongoing use of the illegal hiring policies and practices? If yes, provide the full, unredacted report and related records.[25] If not, why not?
2. What corrective action has DOJ and ATF taken to hold employees who intentionally misclassified these positions, or failed to correct the misclassification of these positions, accountable? Provide records of the corrective action taken.
3. From January 2017 to present, provide all records between ATF and JMD related to ATF’s classification authority and misclassified positions.
4. Concerning Director Dettelbach’s November 8, 2023 notification:
   1. What changes did ATF make to address the issues outlined in the OPM audit report?
   2. What changes did ATF make to “further modernize” its HR function?
   3. What processes and procedures are in place to prevent position misclassifications from occurring in the future?
   4. Provide all guidance, policies, and similar records concerning ATF’s 1800 job series classification, including the ATF’s Special Agent Career Plans before and after OPM audit.
5. OPM identified a litany of misclassified position descriptions. Has ATF conducted a nationwide review of the responsibilities of the employees assigned to the misclassified position descriptions across all of its Field Offices and Divisions to ensure the employees assigned to these positions are performing law enforcement duties? If not, why not?  If yes, please provide records evidencing the review, and for each individual identified as performing non-law enforcement duties provide:
   1. The Field Office, Division, position title, organization, series, grade, and position description number.
   2. The total number of ATF employees employed in misclassified positions performing non-law enforcement duties.
   3. The total cost to taxpayers for each individual employed in a misclassified position, as well as the amount of excess pay each individual received as a result of the misclassification.
6. Does DOJ plan to conduct a retroactive review of misclassified positions beyond the five years reviewed by OPM? If yes, provide the status of this review and all findings. If not, why not?
7. Prior to OPM’s audit, how often was ATF required to assess and review its position descriptions and classifications pursuant to ATF or DOJ regulations, policy, or similar guidance? Was ATF in full compliance? If not, what ATF office and personnel were responsible for ensuring ATF compliance? If yes, provide records of ATF’s compliance.
8. According to the National Academy of Public Administration (NAPA), JMD requested NAPA “to conduct an independent study of the use of classification authority for the GS-1811 series positions within the DOJ component agencies.”[26] In regards to this study:
   1. Provide the date JMD requested NAPA to conduct the study.
   2. Provide the full, unredacted NAPA report with the findings and recommendations.
   3. Provide all records related to the NAPA study.

Thank you for your prompt review and responses. If you have any questions, please contact Brian Randolph of Senator Grassley’s Committee staff and Aaron Gottesman of Senator Ernst’s staff.

Sincerely,

Charles E. Grassley
Ranking Member
Committee on the Budget

Joni K. Ernst
United States Senator

cc: The Honorable Merrick Garland
Attorney General
Department of Justice

Author: Press Release