ATF Misclassified Jobs as Law Enforcement and Retaliated Against Whistleblower, Agencies Say

The Bureau of Alcohol, Tobacco, Firearms and Explosives is in hot water with multiple agencies after it reportedly misclassified nearly 100 administrative positions as related to law enforcement activities, and then allegedly retaliated against a whistleblower who exposed the problem.

According to Sen. Chuck Grassley, R-Iowa, who sent letters to the Office of Personnel Management, ATF and the Justice Department last week seeking information about the matter, OPM partially suspended ATF’s position classification authority in November 2020 after an OPM audit found 94 employees performing “exclusively administrative duties” were improperly classified to the General Schedule’s law enforcement family of jobs.

“These individuals were assigned to and performing administrative duties, exclusively and, thus, their positions should have been classified to non-law enforcement occupational series, including human resources, public affairs and other administrative job families,” wrote Mark Lambert, OPM associate director for merit system accountability and compliance, in a letter to ATF published by Grassley’s office. “[These] actions were taken without regard for the classification standards for law enforcement officers and without consideration of the qualifications requirements of the administrative positions. OPM will be referring ATF to the Office of Special Counsel for investigation of prohibited personnel practices ATF may have committed in taking these actions.”

At issue in the misclassification of jobs is the fact that federal employees in law enforcement have access to Law Enforcement Availability Pay, premium pay granted to federal law enforcement officers who are often required to be “available to work” large quantities of unscheduled duty, as well as enhanced retirement benefits.

“What is the total value of benefits such as LEAP and enhanced retirement eligibility that were inappropriately provided to misclassified employees?” Grassley asked ATF and the Justice Department. “[Please] describe in detail the process by which employees in the misclassified positions were certified for LEAP and how it was determined they met the criteria for LEAP, if they received LEAP pay.”

Additionally, Grassley wrote that ATF has since been accused of firing a whistleblower in retaliation for raising concerns about how the agency was classifying administrative jobs. That case is currently before the Merit Systems Protection Board.

“This situation seems particularly egregious in that the whistleblower in question apparently came forward at ATF after attending a larger meeting where whistleblowing was praised and even featured a previous whistleblower,” Grassley wrote. “ATF, the Department of Justice and the whole government ought to celebrate whistleblowers, and not just seek to appear to celebrate whistleblowers, as the case appears in this instance.”

In a letter to the whistleblower, the Office of Special Counsel said it has asked the Justice Department to investigate the matter and submit a report to OSC with its findings.

“We emphasize that, while OSC has found a substantial likelihood of wrongdoing based on the information you submitted in support of your allegations, our referral to the attorney general for investigation is not a final determination that the allegations are substantiated,” OSC wrote.

ATF spokeswoman April Langwell confirmed to Government Executive that the agency had received Grassley’s letter, and said that the agency’s job classification authority remains under partial suspension. OPM declined to comment.

“ATF has been the subject of an audit with regard to classifications that affected a number of headquarters positions,” Langwell said. “ATF has and continues to work cooperatively with the Department of Justice and the Office of Personnel Management to come to a resolution of these matters. We are committed to being in compliance with all OPM policies and procedures.”