Senator Calls for DOJ Inquiry on ATF Whistleblower Retaliation Claims, Misclassifying Jobs
On October 6, 2021, Senator Chuck Grassley (R-IA) inquired with the Office of Personnel Management (OPM) and the Department of Justice (DOJ) regarding the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) misclassification of nearly 100 administrative positions and subsequent retaliation of the exposing whistleblower.
The Office of Special Counsel (OSC) responded to the ATF’s whistleblower’s disclosure of the personnel blunder on June 9, 2020, following their review. OSC requested the Attorney General immediately conduct investigations into the following: are the misclassified positions in violation of federal law and did workers in these positions earn enhanced benefits.
Federal law enforcement officers who remain on duty indefinitely are eligible to receive Law Enforcement Availability Pay, or LEAP, which provides compensation beyond regular work hours and adds an additional 25 percent to an employee’s base salary. Administrative-duty employees aren’t required to have availability beyond business hours and are therefore not eligible for LEAP.
The whistleblower alleged the agency misclassified a set of administrative posts in the enforcement and compliance group job series (1800), allowing those misclassified employees to receive LEAP benefits.
The whistleblower’s allegations of position misclassification triggered human capital management system evaluation by the Merit System Accountability and Compliance (MSAC) at the OPM. The evaluation team concluded on September 18, 2020, noting 94 positions misclassified to the General Schedule (GS) as 1800 series positions following a review of performance records.
“These individuals were assigned to and performing administrative duties exclusively, and thus, their positions should have been classified to non-law enforcement occupational series,” stated Mark Lambert, MSAC Associate Director, “These actions were taken without regard for the 1800 classification standards for law enforcement officers, and without consideration of the qualification requirements of the administrative positions.”
Associate Director Lambert issued a memo on November 2, 2020 to Monty Wilkinson, then-Deputy Assistant Attorney General for Human Resources and Administration and Chief Human Capital Officer at the DOJ, of ATF’s position classification authority suspension.
ATF’s Human Resources and Professional Development informed select ATF employees of their potential reassignment to properly classified positions by OPM in a memo on May 15, 2021. Employees ranked their choices: remain in 1800 series, relocation from the 1800 series, or retire in their position pending OPM approval.
Senator Grassley (R-IA) reported the DOJ and ATF acted following OPM’s memo, however, it is unclear what these actions were. The Senator pressed Attorney General Merrick Garland and ATF Acting Director Marvin Richardson to conduct further analysis of the misconduct.
Senator Grassley’s (R-IA) probing questions include:
Are these the total number of misclassified positions within all of ATF, or was the audit limited in scope? How long have positions been misclassified by ATF as identified by OPM?
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?
What deliberations or actions did DOJ or ATF take in the 6 months before taking action regarding the misclassified positions?
Has the whistleblower been interviewed as part of any investigation request by OSC?
The whistleblower, purportedly facing retaliation, disclosed information following an ATF event praising a previous whistleblower.
Senator Grassley (R-IA) has long engaged in whistleblower advocacy. He was the founder and currently serves as Chair of the Senate Whistleblower Caucus. He co-authored the Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 that strengthened federal employees’ protected disclosures.