[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
TIME TO BITE THE BULLET: FIXING FEDERAL LAW ENFORCEMENT PAY AND
BENEFITS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CIVIL SERVICE
AND AGENCY ORGANIZATION
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JULY 20, 2004
__________
Serial No. 108-279
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
98-745 WASHINGTON : 2005
_____________________________________________________________________________
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
NATHAN DEAL, Georgia C.A. ``DUTCH'' RUPPERSBERGER,
CANDICE S. MILLER, Michigan Maryland
TIM MURPHY, Pennsylvania ELEANOR HOLMES NORTON, District of
MICHAEL R. TURNER, Ohio Columbia
JOHN R. CARTER, Texas JIM COOPER, Tennessee
MARSHA BLACKBURN, Tennessee BETTY McCOLLUM, Minnesota
PATRICK J. TIBERI, Ohio ------
KATHERINE HARRIS, Florida BERNARD SANDERS, Vermont
(Independent)
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on Civil Service and Agency Organization
JO ANN DAVIS, Virginia, Chairwoman
TIM MURPHY, Pennsylvania DANNY K. DAVIS, Illinois
JOHN L. MICA, Florida MAJOR R. OWENS, New York
MARK E. SOUDER, Indiana CHRIS VAN HOLLEN, Maryland
ADAH H. PUTNAM, Florida ELEANOR HOLMES NORTON, District of
NATHAN DEAL, Georgia Columbia
MARSHA BLACKBURN, Tennessee JIM COOPER, Tennessee
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Ron Martinson, Staff Director
B. Chad Bungard, Deputy Staff Director and Chief Counsel
Detchen Bannigan, Clerk
Tania Shand, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on July 20, 2004.................................... 1
Statement of:
Kelley, Colleen, national president, National Treasury
Employees Union; Frederick Bragg, president, Federal Bureau
of Investigation Agents Association; Lou Cannon, president,
D.C. State Lodge, chairman, National FOP Federal Officers
Association; and T.J. Bonner, president, National Border
Control Council............................................ 26
Sanders, Ronald, Associate Director for Strategic Human
Resources Policy, U.S. Office of Personnel Management...... 6
Letters, statements, etc., submitted for the record by:
Bonner, T.J., president, National Border Control Council,
prepared statement of...................................... 77
Bragg, Frederick, president, Federal Bureau of Investigation
Agents Association, prepared statement of.................. 40
Cannon, Lou, president, D.C. State Lodge, chairman, National
FOP Federal Officers Association, prepared statement of.... 62
Davis, Hon. Jo Ann, a Representative in Congress from the
State of Virginia, prepared statement of................... 5
Kelley, Colleen, national president, National Treasury
Employees Union, prepared statement of..................... 28
Sanders, Ronald, Associate Director for Strategic Human
Resources Policy, U.S. Office of Personnel Management,
prepared statement of...................................... 9
TIME TO BITE THE BULLET: FIXING FEDERAL LAW ENFORCEMENT PAY AND
BENEFITS
----------
TUESDAY, JULY 20, 2004
House of Representatives,
Subcommittee on Civil Service and Agency
Organization,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:05 a.m., in
room 2203, Rayburn House Office Building, Hon. Jo Ann Davis
(chairwoman of the subcommittee) presiding.
Present: Representatives Jo Ann Davis of Virginia, Davis of
Illinois, Norton and Van Hollen.
Present: Ron Martinson, staff director; Chad Bungard,
deputy staff director and chief counsel; Chris Barkley and
James Boland, professional staff members; Detgen Bannigan,
clerk; John Landers, detailee; Tania Shand, minority
professional staff member; and Teresa Coufal, minority
assistant clerk.
Ms. Davis of Virginia. The Subcommittee on Civil Service
and Agency Organization will come to order.
I want to begin by thanking everyone for being here today.
We will be joined by a few more members on the subcommittee,
but we are going to go ahead and start so that we do not hold
everyone up.
This is an issue of the utmost importance to me and I know
a lot of other Members of Congress. A year ago, the
subcommittee held a hearing on the need for compensation and
benefits reform for Federal law enforcement officers. It does
not seem like it has been a year ago, but I guess it has been.
The hearing evaluated the existing inequalities within the
Federal law enforcement community and addressed several
piecemeal approaches relating to law enforcement officer
compensation and benefits reform.
When I use the term ``law enforcement officer,'' I mean it
in the broad sense, which is the correct sense. As pointed out
at the last hearing, when law enforcement officials are killed
in the line of duty, their names are inscribed as law
enforcement officers on the National Law Enforcement Officers
Memorial. Sadly, however, some of those very officers are not
recognized as law enforcement officers when they are alive for
pay and retirement purposes. This just does not sit very well
with me, and with many others.
It was encouraging at that hearing to hear the Department
of Justice witness recognize this current all-or-nothing
disparate treatment among law enforcement personnel, and that
DOJ is in fact a strong proponent of eliminating these
disparities. There is no doubt that the Federal law enforcement
retirement system must be modernized to reflect the dangers and
challenges that await our Nation's protectors in this post-
September 11 world.
Another question broached at the hearing was how do we make
sure we are paying our Federal law enforcement agents properly.
There are several factors and questions to consider such as: Is
the current pay scale meeting the needs of law enforcement
officers in high cost of living areas? Is the current general
schedule classification and basic pay system sufficiently
flexible to address specific law enforcement problems? How do
we resolve differences in pay flexibility among agencies, such
as employees for DOD and DHS, where law enforcement employees
will be converted to more labor market and performance systems?
How do we resolve the perceptions of inequity and existing
inconsistencies in premium pay entitlements? And how do we
create a premium pay system that eliminates the pay compression
for GS criminal investigators, while not creating another
compression problem or inversion with higher-level employees?
Something needs to be done to correct the inconsistencies
and inadequacies that currently exist for our folks who are on
the front line risking their lives for our country. We have a
lot of highly motivated, talented employees out there and we do
not want to lose them or treat them unfairly. That is why
shortly after the last hearing I introduced the Federal Law
Enforcement Pay and Benefits Parity Act which was subsequently
signed into law on December 19 of last year. That act required
the Office of Personnel Management to submit a report and
recommendations to Congress on eliminating disparities in pay
and benefits entitlements among different groups of Federal law
enforcement officers. I thought that report, which was due on
April 30, 2004 would never get here. It was finally issued last
Thursday, July 15, 2004. I would like to commend OPM for its
hard work in putting together a thorough and thoughtful report
on Federal law enforcement pay and benefits, even if it was
late.
The report makes several specific recommendations, but they
are all subsumed by OPM's over-arching recommendation that
Congress grant it the administrative authority, subject to
congressional oversight, to work in conjunction with the
Attorney General and other stakeholders to modernize the entire
pay and retirement system structure for the Federal law
enforcement community, including modernizing the definition of
law enforcement officer for coverage purposes.
OPM believes an administrative solution strikes the
appropriate balance between the Federal Government's interests
on one hand, and the relevant agencies' needs on the other. I
look forward to hearing from OPM on all of its recommendations
and findings, and the stakeholders on their particular thoughts
on the report.
All of your comments today will be extremely helpful as the
subcommittee continues to pursue its ongoing efforts to reform
Federal law enforcement pay and benefits aiming toward one
governmentwide solution.
We will wait just a few seconds here, and our ranking
member has come in, just at the opportune time because I am
about to recognize him for an opening statement.
Mr. Davis of Illinois. Thank you very much.
Ms. Davis of Virginia. You are very welcome, Mr. Davis. It
is always a pleasure to have you.
Mr. Davis of Illinois. I will tell you, after being up all
night coming from Honolulu.
Ms. Davis of Virginia. Our heart breaks through that you
are just getting in from Honolulu, Hawaii. [Laughter.]
We will give you a second to get your thoughts together.
Mr. Davis of Illinois. Thank you very much, Madam
Chairwoman.
Federal officers, in varying degrees and capacities, uphold
the Constitution and protect the public welfare. Over the
years, however, there have been much debate and controversy,
with no permanent resolution, on which types of Federal
employees should be classified as ``law enforcement officers,''
and as such should receive enhanced pay and retirement
benefits.
In 1988, the Anti-Drug Abuse Act established the National
Advisory Commission on Law Enforcement. The Commission studied
pay benefits and other issues related to the recruitment and
retention of employees defined as law enforcement under Federal
retirement laws. The Commission's report, which was released in
April 1990, made several recommendations for interim pay
enhancements for law enforcement officers and suggested that
the Office of Personnel Management, OPM, conduct a further
study on the need for a new pay system for Federal law
enforcement.
The Commission's report did note, however, that the statute
defining Federal law enforcement officer was broad,
encompassing both traditional positions within the field and
less traditional positions not generally considered part of the
law enforcement community.
As recommended by the Commission, Congress enacted the
Federal Employees Pay and Comparability Act of 1990, which
enhanced law enforcement pay and directed OPM to conduct a
study of the pay and job evaluation for Federal law enforcement
officers. OPM, along with the 45-member advisory committee
drawn from law enforcement agencies and employee groups,
produced in September 1993 a report entitled, A Plan to
Establish a New Pay and Job Evaluation System for Federal Law
Enforcement Officers.
Two months later, the Subcommittee on Post Office and Civil
Service held a hearing on the report and its findings. In 1999,
this subcommittee held a hearing on this issue entitled, Law
Enforcement Retirement: Who Qualifies and Why. Last year, the
subcommittee held a hearing on Federal law enforcement
personnel entitled, How Can We Fix an Imbalanced Compensation
System? Hearings have been held. Reports have been written, and
the problem continues.
OPM's latest report may make the difference. Released last
week, OPM's report, Federal Law Enforcement Pay and Benefits,
chronicles the legislative and historic missteps that have led
to the ad hoc approach to law enforcement classification, pay
and benefits. I agree, however, with OPM's conclusion that a
comprehensive and integrated governmentwide approach is needed
to finally address this problem.
OPM recommends that Congress give it regulatory authority
to establish a governmentwide framework for law enforcement
retirement, classification and basic pay and premium pay
systems. No specifics were offered. I would be interested in
seeing a draft legislative proposal. Furthermore, I would like
to hear the witnesses' view on the OPM's report and any
recommendations that they may have.
Again, Madam Chairwoman, I thank you for holding this
hearing and look forward to hearing the witnesses.
[The prepared statement of Hon. Jo Ann Davis follows:]
[GRAPHIC] [TIFF OMITTED] T8745.001
Ms. Davis of Virginia. Thank you, Mr. Davis. It is good to
have you here with us today. As always, we appreciate your
input.
I ask unanimous consent that all Members have 5 legislative
days to submit written statements and questions for the hearing
record, and that any answers to written questions provided by
the witnesses also be included in the record.
Without objection, it is so ordered.
I ask unanimous consent that a statement from the Federal
Law Enforcement Officers Association be included in the record.
Without objection, it is so ordered.
I ask unanimous consent that all exhibits, documents and
other materials referred to by Members and the witnesses may be
included in the hearing record, and that all Members be
permitted to revise and extend their remarks.
Without objection, it is so ordered.
On the first panel today, we are going to hear from Mr.
Ronald Sanders, Associate Director for Strategic Human
Resources Policy at the U.S. Office of Personnel Management. It
is standard practice for this committee to administer the oath
to all witnesses at one time. If all the witnesses who are here
with us today who will be testifying could please stand,
including any of those who may help in answering the questions.
I will administer the oath. Anyone who is going to be helping
Mr. Sanders answer the question, you are going to need to be
under oath as well. My goodness, you have an entourage with
you.
If you would please raise your right hands.
[Witnesses sworn.]
Ms. Davis of Virginia. Let the record state that the
witnesses have answered in the affirmative and you all may be
seated.
Mr. Sanders, we thank you again for being here with us
today. We have your full testimony that we will put in the
record, but if you would like to summarize for 5 minutes, we
would love to hear from you.
STATEMENT OF RONALD SANDERS, ASSOCIATE DIRECTOR FOR STRATEGIC
HUMAN RESOURCES POLICY, U.S. OFFICE OF PERSONNEL MANAGEMENT
Mr. Sanders. Thank you, Madam Chairwoman and members of the
subcommittee. OPM Director Kay Coles James has asked me to
testify on her behalf this morning, and we welcome the
opportunity to address a vital subject, pay and benefits
disparities within the Federal law enforcement community.
As its title indicates, this hearing is a key milestone in
the subcommittee's ongoing efforts to adopt a comprehensive,
integrated solution to those disparities. The administration
shares that goal and we sincerely appreciate your leadership in
that regard.
The urgency is clear and present. One need only consider
the dramatic challenges that have confronted the Federal law
enforcement community in the wake of the terrorist attacks of
September 11 and the beginning of our Nation's all-out war on
terrorism. The specter of those horrific events and the ongoing
need to secure our homeland demand that we pay careful
attention to the strategic management of our frontline Federal
law enforcement personnel.
My remarks today will focus on our recent report to
Congress on Federal law enforcement pay and benefits. That
report was submitted last week and this hearing begins the
process of examining, discussing and acting on its conclusions.
It focuses on three critical areas: retirement benefits,
classification and basic pay, and premium pay.
In addition, we concentrate our analysis on two categories
of employees with law enforcement responsibilities: one, those
who qualify as law enforcement officers, or LEOs, under the
civil service and Federal employee retirement systems; and two,
those other law enforcement employees who have arrest
authority, but who do not otherwise qualify as LEOs.
The report and this hearing come at a pivotal time for the
Federal law enforcement community. The demands on Federal law
enforcement agencies and their professionals are more global,
more dangerous and more dynamic than ever before, rapidly
evolving in ways that we never anticipated just a few years
ago. There is no doubt that the Federal law enforcement work
will continue to evolve at a dramatic rate in this post-
September 11 world.
However, the rules that govern the pay and retirement of
our law enforcement personnel have not kept pace. They do not
reflect this reality and remain inflexible and fragmented. LEOs
today are covered by a rigid half-century-old retirement
structure, an outdated classification and basic pay system that
is not sufficiently sensitive to their unique labor markets and
performance requirements, and a confusing patchwork of premium
payments.
For example, we found that with respect to LEO retirement
coverage and benefits, the evolution of Federal law enforcement
work has exacerbated the difficulty of applying the circa 1948
definition of law enforcement officer to modern missions and
work situations. Legislation and litigation have extended
enhanced LEO retirement benefits to some within the broader law
enforcement community, but not others, exacerbating differences
in the retirement coverage of similarly situated officers. LEO
retirement provisions encourage experienced officers to retire
at an early age, when it may be in the interest of law
enforcement agencies to retain these employees just as they are
reaching their peak in terms of experience.
With respect to basic pay for LEOs and other law
enforcement personnel with arrest authority, the 50-plus-year-
old general schedule system does not provide for sufficient
flexibility to address law enforcement-specific classification
and pay problems, which may vary by occupation, grade level,
location and level of performance.
With the creation of new, more flexible basic pay systems
for employees, including over 50,000 law enforcement personnel
as we have defined them in the Departments of Homeland Security
and Defense on the horizon, other law enforcement agencies
still bound by the general schedule will be at a significant
disadvantage.
Finally, with respect to premium pay rules that cover LEOs
and others with arrest authority, there are complex pay
differences among them and between them, and this may be
exacerbated by the fact that Congress has provided
administrative authority to set premium pay rules to FAA, TSA
and DOD, the latter in conjunction with OPM. Extending that
authority governmentwide would ensure needed consistency, while
allowing for flexibility to meet unique agency mission
requirements.
Thus, it is clear that considerable and sometimes confusing
differences currently exist among law enforcement personnel
with respect to retirement, basic pay and premium pay. While
the root causes may vary, we believe this patchwork of
differences, in particular disparities between agencies that
have flexibilities and those that do not, is counterproductive
to the 21st century Federal law enforcement mission.
To meet that mission, our report recommends that Congress
provide OPM with broad administrative authority to establish a
governmentwide framework for law enforcement retirement,
classification and pay, and premium pay. Such authority would
be exercised with the concurrence of the Attorney General and
in consultation with employing agencies and employee
stakeholders. This framework would be tailored specifically for
law enforcement jobs, providing all law enforcement agencies
with the same flexibilities that only a few now enjoy, but with
OPM playing a central coordinating role responsible for
balancing governmentwide interests with unique agency needs,
missions and cultures.
With respect to retirement, this framework would vest OPM
with authority to modernize the definition of law enforcement
officer and establish a flexible benefits structure that
comports with it. One option under consideration would create a
second LEO retirement tier with benefits falling between
current law enforcement retirement and regular civil service
retirement benefit levels.
With respect to classification and basic pay, this
framework would provide all law enforcement agencies with
flexibility similar to those at DHS, DOD and other agencies
enjoy, but subject to central OPM coordination.
Finally, with respect to premium pay, the framework would
provide a flexible administrative authority so that premium pay
rules can be rationalized and modified to address current and
emerging mission needs.
While we separately examined each of these three policy
areas, we believe our recommendations should be acted on as a
package. This package approach is imperative, given that the
three areas are inextricably interrelated. We believe that
taken together our recommendations will ensure that OPM and the
Federal law enforcement community are equipped to balance
agency and government interests in strategically managing some
of our Nation's most valued and vital human resources. That is
a goal that I am certain we all share.
Madam Chairwoman, on behalf of Director James, I want to
thank you for the opportunity to testify on this vital topic. I
will be happy to answer any questions you or members of the
subcommittee may have.
[The prepared statement of Mr. Sanders follows:]
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Ms. Davis of Virginia. Thank you very much, Mr. Sanders. We
appreciate your being here this morning.
I generally go to my ranking member, but I am going to ask
a few questions first here, if our ranking member does not
mind.
As you know, OPM gets blamed for a lot of things that are
not its fault, but rather Congress', which a lot of times is
true, like many of the disparities pointed out in your report.
I see that OPM wants to take full responsibility of both making
the rules and carrying them out. Did anyone warn you to watch
out for what you wish for because you just might get it?
Mr. Sanders. We did so with some trepidation because this
is a huge, complex problem. It has been growing literally for
five-and-a-half decades. On the other hand, we believe that now
accountability for the law enforcement community, particularly
their pay and retirement benefits, is very diffuse. It is
spread among a number of agencies at a time when the need for
coordination and cohesion among those law enforcement agencies
in meeting mission requirements is at an all-time high.
So working with the Attorney General, we believe that by
concentrating and consolidating that accountability, as
difficult as the problems may be, will provide for a more
integrated strategic solution to these problems, bring about
consistency where it is appropriate, but balance the need for
agency flexibility where that makes sense as well.
Ms. Davis of Virginia. Then you cannot come back and blame
us if you do it.
In all seriousness now, I am deeply disappointed that your
report and recommendations simply ignored groups seeking LEO
status, solely because they did not have arrest authority. Does
your exclusion of these groups from the report mean that OPM
would ignore them if Congress granted the authority you seek to
create a comprehensive pay and retirement system, simply
because they do not have arrest authority?
Let me give you two more questions on the same subject, and
then you can answer them all. And if your answer is that you
will not ignore them, why are they excluded from this report?
Then do you intend to ignore the groups that do not have arrest
authority, even if they are part of the larger law enforcement
community? Or are you planning to take away coverage from
currently covered occupations that do not have arrest
authority?
I am referring now to, you have cooks and support staff in
the prisons who do not have arrest authority, yet they are
considered LEOs and they get all the benefits. Yet you have
Customs inspectors who do not get the benefits.
Mr. Sanders. Let me speak to the last question first,
because I know that is on a lot of folks' minds. Let me respond
in two respects as well: one, with respect to prison support
personnel; the other more generally because I know that some
are concerned about losing their current LEO status.
With respect to prison support personnel, Congress extended
LEO coverage to them in the 1950's for a variety of reasons. To
be sure, they are in theory supposed to meet physical
requirements; to be sure, they do have limited detention
authority under the classic definition of investigate,
apprehend and detain, how we have defined LEOs today.
To be quite candid, we did not choose to question that
wisdom. Congress did it for a variety of reasons, and those
reasons may still exist. We just did not focus on them.
Instead, we tried to sharpen our focus on the law enforcement
community as it is more traditionally defined. You have already
pointed this out, Madam Chairwoman, the sort of conventional
definition of law enforcement officer is far broader than the
more restrictive definition that the retirement systems provide
for coverage. I want to speak to that.
So we focused on those who meet the classic definition and
those with arrest authority for a particular reason. For those
that have LEO status today, while it is premature to talk about
whether they would be grandparented or anything like that,
because we just proposed this authority and Congress certainly
has not had a chance to act on it. I can tell you this, we are
extremely sensitive to the concerns about folks who have that
status today and are worried about losing it.
Given the uncertainties of the future, particularly
congressional action, there is no way that I could promise or
guarantee that status will not be affected. I can tell you that
we are very sensitive to that. I can tell you that agencies are
very sensitive to that. In trying to balance governmentwide
interests with agency interests, employee interests are part of
that equation as well. Frankly, the last thing we would ever
try to do intentionally is to stop agency operations in the
exercise of the authority we have asked for.
So while I cannot promise anything, what I can say to those
who have that status today we are sensitive to that concern. We
know you have made major life decisions based on the
expectations that you have, and we will do everything we can to
respect and honor them.
Now, to the groups that were excluded, they were excluded
deliberately. Let me take us back to first principles, this
notion of a young and vigorous work force. We believe that
principle, while it needs to be modernized, is as valid today
as it was in 1948. When you think about that first principle,
there are a number of consequences and implications from it.
What it says is that the government in certain circumstances
needs a young and vigorous work force. That is the principle I
am talking about. And that in order to meet that need, it takes
extraordinary action. It says to employees, you cannot work
beyond this age. It says you cannot start work beyond this age.
It says you are going to have a shortened career whether you
like it or not because there are rigorous physical demands in
the job. That is the young and vigorous.
Now, if you buy that first principle, that is the reason we
have enhanced retirement benefits, to say to those employees
that while we will take extraordinary action to limit the
length of your career, we want to make sure that when you
retire after long and faithful and honorable service, that you
have a pension that is as financially viable as a regular civil
servant who gets to work for 30 or 35 years. That is the reason
for the enhanced benefits.
So again, if you buy the first principle, the reason that
we have excluded certain groups from coverage of the report and
our recommendations is because we do not believe, based on the
analysis that we have done, that there are sufficient reasons
for a young and vigorous work force of, fill in the blank; let
me be candid because I think we know who we are talking about.
A young and vigorous work force of assistant U.S. Attorneys, I
think you could make a compelling case that you need just the
opposite. That is probably not right, because that is old and
decrepit. [Laughter.]
What I mean is seasoned and experienced.
Ms. Davis of Virginia. Old and experienced.
Mr. Sanders. Seasoned and experienced. I do not mean to
make light of it, because I know their concerns are foremost in
their own eyes, but the same thing with IRS revenue officers. I
know that has been a proposal as well. If there is a compelling
government interest to truncate their careers, to say we need a
young and vigorous work force because of the physical demands
on he job, then so be it. That is the part of the definition
that we think we need to modernize.
The reason we have concentrated on the classic definition,
and there is no intention to repeal that classic definition of
investigate, apprehend and detain, but we believe that the
clearest rationale for additional consideration should focus on
those people who have arrest authority, because there is a
clear nexus between the exercise of that arrest authority to
potentially having to use deadly force in the performance of
their duties, to actually go forward into danger, rather than
retreat from it. We believe that there is compelling reason to
consider them for some additional enhancements, but not those
others where, again, we see no evidence that there is a need
for a young and vigorous requirement with all of the
consequences thereof.
Ms. Davis of Virginia. I will come back to that. I am going
to yield now to my ranking member, Mr. Davis, for questions.
Mr. Davis of Illinois. Thank you very much, Madam
Chairwoman.
Following up, are there other characteristics of law
enforcement aside from the youthfulness of the work force and
the danger that would lend itself to enhanced benefits or pay?
Mr. Sanders. I think there are, but let me qualify my
answer because I will go back and belabor the point with regard
to that first principle. This has nothing directly to do with
danger or threat or hazard. There are other ways to compensate
employees for that. It has everything to do with the government
taking extraordinary action to shorten people's careers because
the government has made the judgment that they cannot work as
long as others, whether they want to or not.
So what are some of those characteristics? Again, this is
based on the analysis that led to our report, so I would
characterize it as preliminary. Much more intensive work needs
to be done with the law enforcement agencies. But if you take,
for example, guard or police forces that have traditionally
fallen short of the traditional LEO definition, even though it
has been extended to some. For the most part, uniformed police
forces in the executive branch are not covered by LEO
retirement. That may have been appropriate some time ago, but
if you look at those police forces today, while many of them
may not meet the primary duty test of law enforcement officers,
there are others of them who are on such elite units as SWAT
teams, explosive ordnance disposal teams, hostage rescue teams.
There is compelling reason to make sure that they are
vigorous. I will not use the word ``young'' because I think the
definition of ``young'' has frankly changed over the last five-
and-a-half decades. The physical capabilities of a 50-year-old
in 1948 are far different than what they are today, speaking
personally. But if you look at those elite units; if you look
at what had been traditionally guard or police forces, or
inspectors for that matter who 5 years ago, frankly, we never
thought that they would be on the front lines in antiterrorism
efforts, and yet today they find themselves there.
So that is part of our analysis in trying to modernize the
definition to extend it to those emerging law enforcement
occupations, duties, responsibilities that frankly no one
thought of in 1948 or the last time that this particular law
has been visited.
Mr. Davis of Illinois. Would you give us an example of how
broad and how deep the disparities might be in different areas?
Are there categories of personnel where there is a big
difference between their pay and retirement benefits versus
others?
Mr. Sanders. Yes, sir. There are a couple of fairly notable
examples. Let's take uniformed police. There are four uniformed
police forces, two in the executive branch, one in the Judicial
and one in the Legislative, the Capitol Hill Police, that have
LEO coverage, in contrast to other uniformed police forces in
DOD or DHS, Veterans Affairs, that do not. When they operate in
the same labor market, that is problematic.
Those same agencies, particularly the police forces in the
Capitol and the legislative branch and the Judicial Branch,
also enjoy significant pay flexibility. So if you look at the
full performance level frontline officer in those agencies
compared to Federal Protective Service, there are wide
disparities in pay.
As I indicated earlier, those are symptoms. The root cause
is the flexibility. Some have it; some do not. As DOD and DHS
move toward a system that allows them, and I cannot say yet
whether they will exercise this, but assume for the moment they
will, they are moving toward a day when they have the authority
in conjunction with OPM to develop a law enforcement-specific
set of personnel policies and rules, particularly governing
compensation. As more and more move in that direction, you have
some with flexibilities, some without, those disparities will
simply increase.
Is it a matter of urgency now? No, but this is an
opportunity to get ahead of the game.
Mr. Davis of Illinois. How do Federal law enforcement
officials compare, let's say, with State and local officials in
pay classification and retirement benefits?
Mr. Sanders. Those comparisons are not easy to make. With
uniformed police, even the duties of a beat cop in LA or New
York are probably different than uniformed police in the
Federal Government. Nevertheless, so let me qualify the
comparisons. Here is what the data tells us, that for law
enforcement officers generally, there is not an across-the-
board recruiting and retention problem; that generally at the
full performance level, pay is quite competitive.
Let me just add a footnote here. When we compare pay, we
are comparing base salary to base salary, with State and local
officials, typically detectives and others, whose job titles do
not exactly match. What we do not count in those comparisons
are such things as law enforcement availability pay, which adds
another 25 percent. Nor do we count the fact that availability
pay and in some cases administratively uncontrollable overtime
are also creditable to retirement, toward annuity. Those are
not counted in those comparisons. Nevertheless, we believe at
the full performance level for law enforcement officers, we are
quite competitive and the retention figures bear that out.
There are, however, targeted problems. We have heard, for
example, from our colleagues at the FBI Agents Association, and
they tell some compelling stories about new agents and having
to relocate to labor markets where the going rate for similar
jobs is far higher. So at the entry level in some, but not all,
law enforcement categories, we are not as competitive as we
could be. The measures taken in 1990 with the special rates for
law enforcement officers and the geographic adjustments have
pretty much run their course.
These problems are dynamic and one of the reasons we have
asked for administrative authority to deal with them is because
they literally change from year to year. So the disparities are
more targeted than they are across the board when it comes to
pay. With uniformed officers, quit rates are unusually high.
Some of that may be because of transfer from one branch of
government to another, but some may be because pay is not as
competitive, even though OPM about a year ago now phased in
special rates for uniformed police officers. It is still too
early to tell their effect. So those disparities exist among
those who are covered by retirement systems and not those who
are covered with a more flexible pay system.
Mr. Davis of Illinois. Thank you very much, Madam
Chairwoman.
Ms. Davis of Virginia. Thank you, Mr. Davis.
Ms. Norton.
Ms. Norton. Thank you, Madam Chairwoman. This is an
important hearing. This is a problem that has been around since
Methuselah and does not seem to get very far.
I certainly agree with the Chair that it is time to
rationalize pay and benefits. I think the question is how, and
that becomes very difficult when you consider the hodgepodge
Congress made out of this mess, not to mention the courts who
have gotten into it.
I simply want to say, Madam Chairwoman, that I am on the
Homeland Security Committee and I think it is pretty dangerous
now to go on with the present system we have, whereby there are
different strokes for different folks when it comes to law
enforcement in agencies. I am on another committee where this
issue constantly arises about inequalities in pay and benefits.
So the first thing I would like to say is I think the kinds
of distinctions we have now among law enforcement officers is
positively dangerous. It is no longer just laughable. In the
post-September 11 period, some kind of rational system has to
come forward. I am not sure how we maintain stability in the
law enforcement work force since, if you are in one of these
positions that is not as favorable as another, I am sure you
are looking around to get to the other. It would be very
interesting to know what the turnover is in the less-favored
positions.
I understand, of course, that the government has some
positions which pay less, because less is involved. There are
different categories, different layers of law enforcement
officer. All that could be accommodated.
My problem is not, and I think this report is a step
forward, my problem is what does OPM really have in mind when
it wants, ``broad'' authority. I think a lot of that needs to
be fleshed out. For example in the executive summary on page
one, and I am reading, all agencies would have the flexibility
to make strategic decisions that support mission accomplishment
in a cost-effective manner. That sounds to me to say you can
devote however much money you feel like to the law enforcement
end of it. Again, if you have an agency, for example, that is
human capital-oriented, you just may feel in your own agency
that law enforcement is not very important, and maybe you are
right. The study says both agency interests and governmentwide
interests would be considered and balanced, and somehow the
Attorney General would be the final, or his concurrence would
be necessary.
Well, I am not sure about that system because I am not sure
we would not end up with the same kind of hodgepodge. I do not
know if OPM has any intention to flesh out more of what it
thinks a system would look like, because I would be very
interested in hearing what you would have to say on that.
Mr. Sanders. We have certainly thought about it. We have
known for over a decade that the general schedule really does
not value law enforcement pay very effectively. It does not
take into account, for example, the need to operate without
close supervision, to literally make life and death decisions
in an instant. None of that is reflected in the classification
standards for the general schedule.
So we have begun thinking about it. But let me add another
phrase to the architecture here, because while agency
flexibility is an important element of that architecture,
equally important is the notion that it would be subject to
strong central OPM coordination to avoid any sort of
destructive interagency competition. OPM would coordinate,
literally broker pay adjustments and pay ranges with agencies
having flexibility to operate within a broad framework, the
parameters of which we would set with the entire law
enforcement community.
One of the things that has become clear to us is that it is
almost impossible, in fact I would probably strike the word
``almost,'' to come up with a one-size-fits-all solution to
this. When you look at Homeland Security with some of its
emerging occupations, they have the same sort of frontline
homeland security responsibilities as others, for example, in
the Department of Justice, but their competencies, their career
paths, even their labor markets are different.
So imposing that sort of one-size-fits-all scheme on two
departments trying to find lowest common denominator is
problematic. On the other hand, establishing parameters so that
they are not cannibalizing each other, that is another thing.
That is the central coordinating role that OPM would play, with
the Attorney General. If you will permit me the analogy, you
have the President's chief human capital officer and the
Nation's chief law enforcement officer working together as
stewards of this community to try to bring them all together,
to set those parameters where they need to be, and balance the
flexibilities.
Ms. Norton. What about the Homeland Security Department?
Mr. Sanders. Absolutely, and they are going to be a key
player in this and at the table.
Ms. Norton. I do not know what the Attorney General has to
do with it. Particularly when you are talking in Washington,
law enforcement really means security. So that we are not just
talking about stopping somebody from stealing something. We are
really talking about security. So I would be very concerned if
the major player was not the Homeland Security Department,
rather than the Attorney General.
Mr. Sanders. There is no question that Homeland Security
will be part of this, but the reason the Attorney General is
there is because literally by Constitution, he is the chief law
enforcement officer, sort of the steward of that community as
its principal focus.
Ms. Norton. Thank you, Madam Chairwoman.
Ms. Davis of Virginia. Thank you, Ms. Norton.
Mr. Van Hollen.
Mr. Van Hollen. Thank you, Madam Chairwoman. Thank you, Dr.
Sanders for being here. I thank you for holding this hearing,
Madam Chairwoman. As you and others have noted, it has been an
issue that people have worked on for many years. I think we can
all agree that the inconsistencies in the system do lead to
unfairness and inequality that needs to be worked on. At the
same time, as you suggested, there are some circumstances in
one agency that may be different than others, and we need to
obviously be sensitive to that.
My particular interest in this issue, my attention was
grabbed by the situation at NIH, the National Institutes for
Health, where the Federal law enforcement officers there are in
my view not treated with the kind of respect and dignity they
deserve, compared to many others that are in Federal law
enforcement. The result has been high attrition rates at the
same time that people have recognized the security threat at
NIH has risen. We built a fence around the complex recently.
They are in the process of constructing a biohazard level III
laboratory, a new one at a major intersection.
So we have rising concerns with respect to homeland
security, and it is very important that we have a police force
that gets the respect that it deserves in order to make sure
that we retain good people there. That is part one of the bill
that I know is identified under the umbrella of different
pieces of legislation that we are considering today.
Let me just pick up on what my colleague, Ms. Norton, was
asking about with respect to delegating OPM the administration
with the authority. Is there any other example that you know of
where, for example, retirement benefits for Federal employees
are left subject to the regulatory process as opposed to being
in the code, in the law?
Mr. Sanders. No, sir. That part of it would be an
extension. On the other hand, we believe that the complexities
warrant it. There are parallels, however. For example, Congress
has vested with OPM the authority to administer the Federal
Employee Health Benefits Program, which is equally compelling
and important within a very broad statutory framework. We
determine eligibility and benefit coverage and levels, etc.,
under FEHB. So this would be sort of parallel to that.
Mr. Van Hollen. But I guess you have obviously different
groups of Federal law enforcement officers around the country.
The concern people would have would be the possibility that
retirement benefits, which is obviously something that people
bank on for the long term, could be subject to change through
administrative procedure as opposed to going through a full-
blown legislative process. I just flag that as something that I
believe, and you have reinforced, this would be new authority,
unprecedented in that sense. I do think that before we tread
down that road, Madam Chairwoman, we need to just think of what
the consequences are.
I thank you for the report and I look forward to the other
witnesses.
Ms. Davis of Virginia. Thank you, Mr. Van Hollen. Actually,
that was one of the followup questions I was going to ask Mr.
Sanders, because one of the things that does concern me is if
we were to give this broad authority to increase or cut
benefits, it could be very costly. It would be my concern that
the administration could just come in and cut benefits anytime
they would like if we vest all the authority into OPM. So I
think that is where you were going with that, and that is one
of the concerns I have.
Another question I have is, and Ms. Norton touched on that,
is why should the Attorney General have veto power, because
that is basically what you are suggesting, that he or she would
have total veto power over any proposal to revamp the system,
because you are basically saying the Attorney General has the
right to say yea or nay. Is that not correct in what you
suggested?
Mr. Sanders. That is correct. The exact language of the
report is, with the concurrence of the Attorney General. While
in theory that would potentially represent veto power, we look
at this as more of a strategic partnership. I will emphasize
that while the Attorney General is singled out in the report,
that should not be taken to mean that other key law enforcement
agencies, particularly Homeland Security, will not be at the
table working with us.
It is that strategic partnership. OPM can bring
considerable human capital expertise to the table, but we are
not accountable for law enforcement operations. We need to make
sure that the people who are responsible for missions are
there. Frankly, Madam Chairwoman, I think that is one of the
safeguards here, because in terms of accountability, that is
sort of our accountability in the first resort to that
community, to those agencies that have a mission to perform and
we want to make sure that human capital strategies support that
mission, not undercut it.
So having them at the table, the Attorney General as
Director James' counterpart in this, but other law enforcement
agencies at the table as well I think is critical to bring that
operational responsibility and perspective to the mix.
Ms Davis. Do not get me wrong. This is not saying anything
negative about the current Attorney General or any other
Attorneys General, but inherently would they not be more
focused on their own agency's role, their own law enforcement
focus within their own agency, as opposed to, say, the law
enforcement folks over at the Veterans Administration or
somewhere?
Mr. Sanders. That may be true, but if you put the broader
community-wide hat on, flexibilities in one agency if they are
not balanced by flexibilities in another, if they are not
managed, coordinated etc., as part of this effort, that could
still have a negative impact on your agency. I think that is
part of the balancing act here. No one is suggesting it is
going to be easy, but part of the balancing act is to have all
of the agency heads who will be a participant in this not only
think about their own agency and the flexibilities they need,
but also to think about the broader law enforcement community.
I believe that, particularly in recent years, as that law
enforcement community has had to work together in a far more
cohesive, coordinated way in an operational context, that they
will be able to do that. They understand now with interagency
task forces literally the rule rather than the exception, that
there needs to be some coherence and consistency in the way we
manage our personnel, even while they may have unique mission
and culture needs in their own respective agencies.
Ms. Davis of Virginia. I understand that. I understand what
you are saying that you need to have all the broader range of
agency heads who have input and have something to bring to the
table, but yet your suggestion is only giving the veto power to
the AG. It is not giving the veto power to any other agency
head. That is my concern.
Mr. Sanders. As a practical matter, though, given that we
would exercise this authority through the regulatory process,
it would be subject to interagency clearance. Any law
enforcement agency would be able to say, wait a minute, we
tried to convince OPM of this as part of our discussions, but
at the end of the day we are raising formal objection to this,
and that matter would be addressed by OMB.
Ms. Davis of Virginia. Just understand, my real concern is
for all of our law enforcement officers and that they should be
called that if that is in fact what they are doing, that they
be treated fairly and equally, especially when they are alive
as well as when they are dead. That just is something that just
sticks with me, that they are considered law enforcement
officers on the memorial, but not when they are alive. I have
trouble with that.
Mr. Davis.
Mr. Davis of Illinois. I have just one question. Would I be
correct in assessing your testimony to suggest that in looking
at retirement policy, that there might be more consideration of
the requirements that are needed to do the job from even a
physical capacity as opposed to lumping some people in where
they are able to perhaps retire at too early an age?
Mr. Sanders. I think that being able to address that is one
of the centerpieces of our recommendations. What has become
clear is that while today the current situation literally
provides for an all or nothing proposition. You either meet the
full primary duty test to investigate, apprehend or detain, or
you do not. What has become clear is that there are gradations.
There are emerging law enforcement occupations,
responsibilities, duties, missions that fall somewhere in
between and that are not addressed. There are many who have
frontline homeland security responsibilities that even with
those responsibilities do not meet the primary duty test.
On the other hand, is there a need for a ``young and
vigorous'' work force, ``to perform the missions that those
agencies are now responsible for?'' That is a question for the
agency heads. If the answer is yes, and there are some
gradations, that is precisely why we think we need the
administrative authority, as unprecedented as it may be, to try
to tailor the levels of benefits to reflect those gradations.
Let me just say that when we suggest a second tier of
benefits as an option, and it is an option, there are others,
we by no means, let me say this as emphatically as I can, we by
no means suggest that they are second-class citizens. What we
do mean is that there are differences in duties and
responsibilities. Some will meet the full LEO test as a primary
duty and others who do not, but whose jobs are just as
important.
Mr. Davis of Illinois. Thank you very much, Madam
Chairwoman. I have no further questions. I would note, though,
I was just thinking about my experiences as a member of the
Chicago City Council. We had law enforcement authority, and I
could imagine some of my colleagues responding in terms of when
they would be able to retire, of whether the requirements for
running would be the same as those who do the job.
Thank you very much.
Ms. Davis of Virginia. Depending on their length of office,
that may determine their retirement.
Mr. Van Hollen.
Mr. Van Hollen. Thank you, Madam Chairwoman. I have no
further questions.
Ms. Davis of Virginia. Thank you, Mr. Van Hollen.
Mr. Sanders, thank you so much for being with us today. I
appreciate all the comments and answers to our questions. If we
have others, we will submit them to you in writing.
I would like to now invite our second panel of witnesses to
please come forward. I will remind you we have already sworn
you in. First, we are going to hear from Ms. Colleen Kelley,
national president of the National Treasury Employees Union.
Then we will hear from Mr. Frederick Bragg. Mr. Bragg is the
president of the Federal Bureau of Investigation Agents
Association. And then we will hear from Mr. Louis Cannon,
president of the D.C. State Lodge and chairman of the National
Fraternal Order of Police, Federal Officers Committee. Finally,
we will hear from Mr. T.J. Bonner, who is president of the
National Border Patrol Council.
Thank you all for joining us today and thank you for your
patience. As soon as we get you situated and your names in
front of you, so I will know who you are, we will begin first
with Ms. Kelley. Ms. Kelley, it is always a pleasure to have
you here before this committee. As you know, for all of you we
will have your written statements for the record. If you would
summarize, we will recognize you for 5 minutes.
STATEMENTS OF COLLEEN KELLEY, NATIONAL PRESIDENT, NATIONAL
TREASURY EMPLOYEES UNION; FREDERICK BRAGG, PRESIDENT, FEDERAL
BUREAU OF INVESTIGATION AGENTS ASSOCIATION; LOU CANNON,
PRESIDENT, D.C. STATE LODGE, CHAIRMAN, NATIONAL FOP FEDERAL
OFFICERS ASSOCIATION; AND T.J. BONNER, PRESIDENT, NATIONAL
BORDER CONTROL COUNCIL
Ms. Kelley. Thank you very much, Chairwoman Davis, Ranking
Member Davis and members of the subcommittee. I appreciate the
opportunity to testify on the recent release of OPM's report to
Congress on law enforcement officer retirement benefits,
classification and pay.
As the OPM report identified, the dramatic challenges that
face the Federal law enforcement community in the wake of the
September 11 attacks and the war on terrorism have noted the
issue of Federal LEO status to the forefront of Federal
employee pay and benefit issues. The OPM report recommends that
Congress give OPM the authority to establish and administer a
new governmentwide framework for all three components:
retirement benefits, classification and basic pay, and premium
pay.
While NTEU would agree with the report's assessment that
presently there is considerable and sometimes confusing
differences that exist among law enforcement personnel, NTEU
has serious concerns regarding the report's recommendation to
provide OPM with broad authority to create and maintain a
governmentwide LEO retirement and pay system.
As the committee is aware, NTEU and representatives from
the three largest Department of Homeland Security employee
unions are currently meeting with management representatives of
DHS and OPM concerning the new DHS human resources management
system, as part of the statutory meet and confer process. It is
unfortunate that the proposed pay, performance and
classification regulations that are being discussed are
basically a set of generalized concepts that lack the detail
necessary for us to gauge the potential impact on employees in
DHS.
The OPM report would expand these concepts in place of
statutory rights to Federal law enforcement employees
governmentwide. NTEU strongly believes that if the Federal law
enforcement retirement program is to be modified, it needs to
be done by statute. As OPM has just confirmed, there is nowhere
in the Federal Government where retirement benefits are set by
regulation, as opposed to statute, including DHS and DOD,
neither of which have flexibility over retirement systems in
their proposed regulations.
Federal LEOs need to be able to rely on retirement rules.
Few things are more important for recruitment and retention.
The ability to alter LEO retirement by regulation could lead to
a patchwork of ever-changing regulations if each administration
could simply alter the Federal LEO retirement system by
regulatory FIAT.
In the Bureau of Customs and Border Protection of DHS, LEO
retirement should cover CBP officers and Canine Enforcement
officers. Their responsibilities have always involved
protecting our borders, interdicting drugs and facilitating
lawful trade. They have evolved to defending us against
terrorism and to stop weapons of mass destruction and those who
would bring them into our country, as well as the risks that
come with these added job responsibilities.
NTEU strongly believes that CBP officers should receive the
same 20-year retirement benefits as those enjoyed by other
Federal law enforcement personnel. The OPM report notes the
possibility of establishing a second-tier of LEO retirement
benefits. While NTEU could have an interest in exploring this
concept, leaving such a determination to OPM and the Department
of Justice is unacceptable.
The report also indicates that the 20-year retirement rule
would be less generous under this proposal, and that also is
unacceptable.
The OPM report also recommends providing OPM the authority
to devise a new pay system for Federal LEOs. NTEU does not
believe that a pay-banding system as proposed in the DHS
personnel regulations, as well as the OPM report, should be
expanded to other Federal law enforcement agencies.
The basic structure of the existing system is sound. No
information has ever been produced to show that the new pay-
band system will enhance the efficiency of the Department's
operations in general or as it relates to law enforcement
personnel.
The report also recommends that Congress give OPM
regulatory authority to establish a framework of premium
payrolls that would apply to all Federal law enforcement
employees in consultation with employing agencies. While some
Federal agencies have been given the authority to establish
their own premium payrolls, such as FAA and TSA, others are
covered by special law enforcement premium pay provisions such
as the Customs Officer Pay Reform Act, or COPRA. COPRA was
created in 1994 to ensure that overtime pay to Customs
inspectors bore a more relationship to hours worked and to
compensate inspection personnel for living with
unpredictability and constant irregularity in their work
schedules.
In fact, COPRA will now be used as the exclusive overtime
and premium pay system for all CBP officers and agriculture
specialists in CBP in the Department of Homeland Security
starting July 25, 2004. So the issue of disparate premium pay
systems is not an issue within CBP anymore.
NTEU also believes that premium pay should continue to be
creditable as basic pay for retirement, as is established under
COPRA for CBP officers and for Federal LEOs governmentwide. In
addition, NTEU continues to believe that premium payrolls
should be codified in law and not established under
administrative authority. CBP officers at DHS deserve the same
20-year retirement benefits as those enjoyed by other Federal
law enforcement personnel.
We look forward to working closely with Congress to ensure
that any changes to LEO pay and benefits are statutory and are
fair to Federal law enforcement personnel.
Thank you.
[The prepared statement of Ms. Kelley follows:]
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Ms. Davis of Virginia. Thank you, Ms. Kelley.
Mr. Bragg. You guys got out of order there. I will have to
figure out who you are. Mr. Bragg, you are recognized for 5
minutes.
Mr. Bragg. Chairwoman Davis, Ranking Member Davis and
members of the subcommittee, thank you for the opportunity to
appear before the subcommittee to testify about the urgent
crisis in the pay and personnel system among Federal law
enforcement, particularly within the Federal Bureau of
Investigation.
My name is Fred Bragg. I am a special agent with the FBI
and the President of the FBI Agents Association. The FBIAA is a
nongovernmental professional association with a membership of
nearly 9,000 current and more than 2,000 retired agents
nationwide. I am testifying today on behalf of the FBIAA and
not as an official representative of the FBI.
Let me begin by offering special thanks to Chairwoman
Davis, Ranking Member Davis and especially the committee staff
for your hard work and leadership in support of this
legislation to address problems associated with law enforcement
compensation. Madam Chairwoman and members of the subcommittee,
the recently released report from OPM acknowledges and confirms
several important conclusions about deficiencies in the current
pay and personnel system. However, its policy recommendations
fall far short of the decisive legislative action that is
needed to address current problems before they undermine the
ability of Federal law enforcement agencies to fully protect
the public.
Legislative proposals such as H.R. 1676 that can address
the real problem facing Federal law enforcement, have been
introduced and enjoy widespread bipartisan support. We hope
that the subcommittee finds itself in a position to take
immediate action to address these critical Federal law
enforcement issues.
The OPM report is clear about three main points: the
general inadequacy of the GS system; the existence of problems
in high-cost cities; and the need to address pay compression.
Although the FBIAA is encouraged by the report's conclusions
regarding the status quo, we are not encouraged by the policy
recommendations in the report. The FBIAA does not believe
Congress should defer unilaterally to OPM on this critical
issue of national importance.
The FBIAA is particularly concerned about several aspects
of this report. First, enhancing OPM authority. The new report
calls on Congress to grant OPM virtually unfettered authority
to determine everything from salaries, covered employees, pay
ranges, and governing principles to performance systems. For
example, consider the following.
How should the retirement system be reformed? The report
states, ``We recommend that OPM be given the authority to
necessarily modernize law enforcement officer's retirement
benefits.'' How should classification and basic pay issues be
addressed? The report states, ``OPM should be given the
authority to establish a flexible basic pay framework for
Federal law enforcement employees through the government.''
What changes can be made to solve problems associated with
premium pay and premium pay caps? The report unsurprisingly
recommends that, ``Congress give OPM regulatory authority to
establish a framework of premium pay rules that would apply to
Federal law enforcement employees throughout the government.''
The only clear result of following the report's
recommendations would be that OPM would be given an unlimited
amount of time and discretion to design a new compensation
system.
Second, using the DHS personnel system as a model. The only
meaningful details of how the new OPM-created system might
function can be found in the report's endorsement of the DHS
personnel system approach. And yet the DHS system was not
designed specifically for law enforcement; does not have an
actual track record to demonstrate its efficiency; and is
taking years to develop and implement.
Third, the failure to address cost-of-living issues. The
OPM report concedes that the compensation system is harming
Federal law enforcement officers living and working in high-
cost cities. Despite the flaws in the pay comparison process
and the fact that inadequate compensation is undermining
retention and morale issues in cities such as New York and San
Francisco, the OPM report offers no meaningful recommendations
to address this problem. OPM recognizes that there may be no
comparable local law enforcement work, however the report
dismisses legislation that would allow for consideration of
cost-of-living issues, as opposed to making pay comparisons.
The FBIAA represents agents who deserve to have the real
cost of living considered, rather than having their
compensation determined by inappropriate comparison to police
officers. The FBI agents have special skills, advanced
education and have no control over where they are assigned to
live and work. The time has come for Congress to legislate
specific, concrete and guaranteed changes to locality pay in
high-cost areas in order to address problems that even OPM
admits exist.
Finally, flawed methodology. In addition to the substantive
problems we have found in OPM's recommendations, I also believe
that there are significant methodological flaws related to this
report. My written testimony highlights the details of these
deficiencies.
In conclusion, the FBIAA understands that the recent OPM
report is simply one step on the road toward real reform of the
Federal law enforcement officers' compensation system, and the
report makes some valuable conclusions about the deficiency of
the status quo. However, the report offers no meaningful
recommendation and very little comfort to FBI agents and other
Federal law enforcement officers who are struggling to make
ends meet while serving our country.
The FBI Agents Association will continue to work with
Congress and agencies such as OPM to create a workable and
efficient compensation system for Federal law enforcement
officers.
I would like to end with a statement from one FBI agent
assigned to the New York city office in response to an FBIAA
survey about the cost-of-living issues, ``I joined the Bureau
to save the world and be part of the best law enforcement
agency in the world. Now, I am just trying to save my family
and provide for their future. I continue my career with the
Bureau because I still feel a sense of duty and obligation and
to my country in pursuing justice. My morale level is negative
one. The local and State police agencies make considerably more
money with better benefits and incentives than the FBI. The
situation is continually growing worse and will ultimately
cause irreparable harm to the Bureau, the Federal Government,
and ultimately the United States of America.''
Thank you for the opportunity to testify. I look forward to
answering your questions.
[The prepared statement of Mr. Bragg follows:]
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Ms. Davis of Virginia. Thank you very much, Mr. Bragg.
Mr. Cannon.
Mr. Cannon. Good morning, Madam Chairwoman, Ranking Member
Davis and distinguished members of the subcommittee. It is a
pleasure to appear before you to discuss the issue of Federal
law enforcement pay and benefits.
When I appeared before the subcommittee last July, we
argued that reform of the law enforcement officer retirement
system would improve the recruitment and retention efforts of
law enforcement agencies throughout the Federal Government,
ensure equity among the various law enforcement and police
occupations, and permanently end the confusion regarding which
requirements qualify law enforcement employees for law
enforcement status.
Because of the critical nature of these issues, the FOP was
pleased to support the Federal Law Enforcement Pay and Benefits
Parity Act introduced by you, Madam Chairwoman, and Senator
George Voinovich. As you know, the legislation directed OPM to
report to Congress by 30 April on the disparities in law
enforcement classification, pay and benefits across the Federal
Government, and provide the recommendations for addressing
them. While we are still reviewing the findings and
recommendations of the report which was released this past
Friday, I would like to discuss our view on a number of key
issues regarding reform of the law enforcement retirement
system.
First, if the goal is to eliminate disparities in the LEO
retirement system, how can Congress ensure that granting the
authority they seek to tailor the program to agency-specific
needs will not in fact create new authorities or increase
existing ones? For example, if OPM was able to grant a specific
agency the authority to offer enhanced retirement benefits to
meet an urgent staffing crisis, what safeguards would be needed
to ensure that it did not result on a drain on the personnel of
other agencies who were not given the authority? Is it
advisable to detach what is a guaranteed benefit for all
Federal employees from statutory law, and in essence allow each
agency to have its own retirement program for law enforcement
officers?
Eliminating the existing disparities in the LEO retirement
system would seem to require at a minimum a basic statutory
framework under which all Federal law enforcement personnel are
included and provided with a fixed benefit.
Second, if the primary purpose of the LEO retirement system
is to enable agencies to maintain young and vigorous work
forces, and as OPM acknowledged, it has been successful in this
regard, what problems have been caused for those agencies which
provide this benefit to their employees by the current
requirements for retirement?
Regardless of the physical rigors which may be required in
an average work week, law enforcement officers are still
required to place their lives on the line each and every day to
protect U.S. officials, their fellow employees and the visitors
to their facilities. The uniqueness of their work means that
such factors as age and physical ability are extremely relevant
to an employee's continued ability to perform their assigned
duties.
Finally, if the definition of law enforcement officer is
inflexible and does not allow agencies to easily expand LEO
retirement coverage to their employees, how should the
statutory definition be revised to better reflect the hazards
and requirements of the modern-day law enforcement mission?
A first step in any reform effort is to amend the
definition of what constitutes a law enforcement officer under
the law. As OPM has noted, the current definition of a law
enforcement officer has not kept pace with the evolution of the
Federal law enforcement work force. It imposes and out-of-date
black and white concept for law enforcement in criminal
investigation on a broad continuum of law enforcement duties
for the present day.
In its report to Congress, OPM has also recommended that it
be given the regulatory authority to establish a flexible basic
and premium pay framework for Federal law enforcement employees
throughout the government. We agree with OPM's assertion that
the general schedule system does not fully value the work
performed by Federal law enforcement personnel and that a
separate pay and classification system may be necessary for
these occupations. Likewise, we believe that all law
enforcement employees can be accommodated under a framework
that provides for general consistency among law enforcement
agencies, recognizes the fluctuations in different labor
markets around the country, and which will prevent the type of
talent drain which was evident in 2002 with the creation of TSA
and the increased staffing requirements of the Federal air
marshal program.
However, given OPM's request for basic and premium pay and
classification-setting authority, similar to that provided to
DHS, it is important to look at those issues which were raised
by the release of the proposed DHS human resources management
system. Our written testimony goes into greater detail
regarding our views on the DHS system. However, I would like to
point out that the FOP does not believe that DHS and OPM have
successfully taken into consideration the unique and
distinctive work performed by the Department's law enforcement
employees in drafting the proposed rule with regard to a pay-
for-performance system. The FOP is primarily concerned with
whether and how such a system would be applied to law
enforcement employees of the Department. Obviously, basing
annual pay raises and pay adjustments on such factors as
seizures made, number of arrests or other factors relating to
the performances of the employee's official duties, would
create a culture that weakens the Homeland Security mission.
Therefore, it would seem to be unwise to implement such a
system for law enforcement employees at DHS or elsewhere
without first ascertaining whether a system is feasible or
appropriate for the law enforcement profession. In the end, the
question is not whether OPM should be provided with the
authority to set a classification, pay and retirement structure
specifically tailored for Federal law enforcement personnel,
but with the eventual breadth and scope of that authority.
Further, despite OPM's assertion that ensuring consistency
does not require policies that are set in the concrete of
statute, the FOP believes that there are many areas in which
consistency can only be achieved through law. Indeed,
resolution of such issues as system coverage, the level of
flexibility provided to individual agencies, long-term policies
to improve recruitment and retention of personnel across the
board, and many others will require congressional involvement
and oversight.
In conclusion, Madam Chairwoman, let me say again that we
appreciate your proven commitment to America's Federal, State
and local law enforcement officers. The FOP looks forward to
working with you and the other members of the subcommittee on
this critically important issue.
I would be pleased to answer any questions.
[The prepared statement of Mr. Cannon follows:]
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Ms. Davis of Virginia. Thank you, Mr. Cannon.
Mr. Bonner, you are recognized for 5 minutes.
Mr. Bonner. Thank you, Chairwoman Davis, Ranking Member
Davis. On behalf of the approximately 60,000 Federal law
enforcement officers represented by the American Federation of
Government Employees in a wide variety of law enforcement
occupations, we are pleased to have the opportunity to present
our views concerning Federal law enforcement pay and benefits.
Without question, dedicated law enforcement officers are
our Nation's most valuable resource in the fight against crime
and terrorism. It is therefore imperative that their pay and
benefit systems be capable of attracting and retaining the best
and brightest employees.
This matter has been a perennial concern for Congress,
which has ordered numerous studies on various related topics.
Most recently, the Federal Law Enforcement Pay and Benefits
Parity Act of 2003 required the Office of Personnel Management
to submit a report to Congress that included, ``a comparison of
classifications, pay and benefits among law enforcement
officers across the Federal Government and recommendations for
ensuring to the maximum extent practicable the elimination of
disparities in classifications, pay and benefits for law
enforcement officers throughout the Federal Government.''
Although this report was due on April 30, 2004, it was not
released to the public until July 26, 2004, last Friday. The
only specific recommendation made in the report was a call for
Congress to cede its responsibility to administer and oversee
the pay and benefits of law enforcement officers to OPM, which
would exercise this new broad regulatory authority in
consultation with the employing agencies and with the
concurrence of the Attorney General.
The fact that OPM fails to outline any role for the
affected employees and their representatives in the development
of these systems is indicative of its arrogant belief that it
is capable of independently developing systems that will be
accepted by frontline Federal law enforcement officers. OPM's
recommendation is strongly opposed by AFGE. Congress is much
more sensitive to the will of the people than the executive
branch, and should retain this power, especially with respect
to such an important group of civil servants.
The fact that over 30 different sections of the OPM report
raise concerns about the costs of funding, pay and benefits
reforms makes it abundantly clear that OPM's primary concern is
protecting the public coffers, not protecting the public from
crime and terrorism.
Undoubtedly, this short-sighted approach will ultimately
prove extremely costly in terms of both dollars and lives. The
cost of a single large-scale terrorist attack would far exceed
all of the expenditures necessary to transform the current pay
and benefits systems into ones that are fair, equitable and
capable of attracting and retaining dedicated and outstanding
law enforcement officers.
In essence, OPM's recommendation has the effect of
declaring the new personnel system at the Department of
Homeland Security a total success, even though it has yet to be
implemented. This wildly optimistic assessment is contrary to
the comments of the overwhelming majority of employees, as well
as practical experience. During town hall meetings last year
with DHS employees, the prevailing sentiment was that the
current general schedule pay system, with some relatively minor
modifications, would be far preferable to an untested pay-for-
performance scheme.
Similarly during the recent public comment period
concerning the proposed new DHS personnel regulations, almost
all of the 3,800 comments expressed grave concerns about the
proposed new pay system. Moreover, every single pay-for-
performance experiment that has been conducted in the Federal
sector that has not been accompanied by substantial funding
increases has failed miserably. Placed into the existing
general schedule pay system, such significant funding increases
would remedy most of its problems by enabling managers to
exercise the many flexibilities that already exist in that
system.
Although OPM's report fails to make specific
recommendations concerning the means to eliminate disparities
in classifications, pay and benefits for Federal law
enforcement officers, it does contain a lengthy discussion of
such matters and includes several possible options. Due to the
extremely short response period, AFGE is unable to generate an
exhaustive analysis or rebuttal of those points at this time.
Rather, it will issue an independent report in the near future
that contains specific recommendations to deal with the
problems identified by Congress.
The report will also respond in detail to the options
surfaced by OPM. The recommendations in AFGE's report will
adhere to the general principles of fairness and equity. Their
adoption would result in systems that are credible and
acceptable to employees. In the final analysis, the ultimate
test of any pay and benefit system is its ability to attract
and retain high-quality employees.
The following overview highlights some of the issues that
will be covered in AFGE's report: expand the definition of
Federal law enforcement officer to include all Federal police
officers, guards, inspectors and other similarly situated
employees; expand full law enforcement retirement benefits to
all Federal law enforcement officers who meet the expanded law
enforcement officer definition; leave the mandatory retirement
age at 57; implement incentives for retirement-eligible
employees to continue working; enhance and expand geographic
pay; retain the current general schedule pay system and fund
the ample flexibilities therein; abandon the notion of pay-for-
performance for Federal law enforcement officers, which will
only serve to de-motivate these otherwise highly motivated
employees; retain different overtime systems for different
types of overtime work; expand Fair Labor Standards Act
coverage to all Federal law enforcement officers; eliminate
overtime earnings limitations; standardize night, Sunday and
holiday differentials to more generous levels; repeal the pay
flexibilities granted to the Departments of Homeland Security
and Defense; and finally, expand collective bargaining rights
and civil service protections to all Federal law enforcement
officers.
In sum, AFGE agrees that there are numerous inequities
within the current pay and benefits systems, but strongly
disagrees with OPM's recommendation that Congress cede its
authority to set and administer the pay and benefits of Federal
law enforcement officers. These roles properly belong to
Congress, which is in a far better position to make decisions
that are driven primarily by the public interest.
Public safety is the single most important function that a
government performs. Allowing it to become subservient to
fiscal considerations would set the stage for further national
tragedies.
Thank you. I would be happy to answer any questions.
[The prepared statement of Mr. Bonner follows:]
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Ms. Davis of Virginia. Thank you, Mr. Bonner.
Mr. Bragg, as a supporter, and by the way, no decisions
have been made yet on that report from OPM, so we have not
decided to do what they have suggested. This is a very
complicated, although to me it seems simple, but when you try
to get something passed, it is not simple. So I have found out
in the last couple of years on the Hill.
Mr. Bragg, I have a question for you. As a supporter of
Representative Rogers' bill, H.R. 1676, that we have talked
about in the past, a bill which excludes availability pay for
Federal criminal investigators from the limitation of premium
pay, among other things, what is your reaction to OPM's report
critical of such legislation? I am sorry for the short time you
had to read the report, but we did not have but 1 day more than
you did.
Mr. Bragg. I believe that their concern, I mean, they do
not deny that there is a problem, but they are concerned about
the pay inversion and how it will affect the SES. I can speak
for the FBI Agents Association, the membership. There are
approximately 12,000 of those assigned to GS and maybe 200 in
the SES category. I think they can work it out. They can find
something to marry the two systems together to where there is
not an inverted effect on the system.
Ms. Davis of Virginia. You all know we have several bills
in this committee, and rather than do things piecemeal, we are
trying to come up with something that would stop this problem
from here on out, so that people would be treated fairly.
With that said, you all heard the testimony from Mr.
Sanders of OPM. As of right now, LEOs must complete 20 years of
LEO service to qualify for higher benefits. Any of you can
answer this. Would you be in favor of changing the retirement
system to allow higher benefits for each year of LEO service,
even if that total did not reach 20? Anybody want to jump in?
Mr. Cannon. I will jump into the pond and start the ripples
going.
Ms. Davis of Virginia. All right.
Mr. Cannon. First of all, I think you are going to have to
determine what LEO service is. That is going to be the big
problem right there. Earlier you talked about people doing
similar jobs. I can give you a specific example right now. At
the Vice President's mansion located at the Naval Observatory,
you have two uniformed forces that protect that facility: the
U.S. Secret Service Uniform Division and the Department of Navy
Police. Well, the U.S. Secret Service Uniform Division enjoys
the pay and benefits of law enforcement officers. The
Department of Navy personnel who do the identical job standing
side by side with them do not. They start at significant lower
pay and do not have the LEO retirement. So are they LEOs?
So we are going to have to define first of all what a LEO
is. I think anything to give creditable service for LEO service
would be a step in the right direction. First of all, are the
guys wearing uniforms, carrying guns, inspecting the cars,
protecting the Vice President, but their patch says Department
of Navy Police, any less of a law enforcement officer than the
U.S. Secret Service who they are working exactly alongside
with?
Ms. Kelley. NTEU believes that the current 20-year
retirement and pay systems should not be diluted for anyone who
is currently under the system. The need to define who is
treated as a Federal law enforcement officer referred to them,
and they are referred to every day at LEOs. They are referred
to when you talk about their duties and when they are talked
about in the newspapers. They are just not treated that way for
pay and benefits.
So first and foremost, we believe that there should be no
dilution of the current benefits for those who are covered.
From there, the conversation about how to redefine
appropriately who should be covered and what that coverage
should be, we are open to discussion. We really have had no
real proposal suggested to us.
Ms. Davis of Virginia. Are you open to a two-tier system
that they talked about?
Ms. Kelley. I would like to know what it is they have in
mind. We are open to the discussion and we have told them this
even in Homeland Security, but then there were never any
specifics forthcoming. So we would be willing to talk about it
as long as the existing tier does not suffer as a result, that
should be maintained.
Ms. Davis of Virginia. Anybody else want to jump in the mix
here? Then I want you to add to it. Do you think that agencies
should be allowed to hire someone who is over the age of, I am
probably treading into water I should not tread into here, over
the age of 37, but still make them subject to mandatory
retirement at 57? You know, those old decrepid people they
talked about.
Mr. Bonner. Let me answer your first question first, which
was creditable service for less than 20 years. I assume you are
talking about a transition for people who are added into the
mix. Clearly, there is a way to solve the problem. They have
done this before when they initiated that system way back when.
They grandfathered people so that people were able to get their
full retirement. I am not sure exactly how they did it, but it
is not an insolvable problem.
I am sorry. I forgot your second question.
Ms. Davis of Virginia. Yes, you just do not want to answer
it.
Do you think agencies should be allowed to hire people
after age 37, and still mandate retirement at 57?
Mr. Bonner. No, I do not. I think there is a very good
reason that they have the age limit in place, notwithstanding
the actuarials that show that people are living longer. I think
that is due to the wonders of medicine. I would disagree with
Mr. Sanders when he says that 50-year-olds are in better shape
today than they were 50 years ago. Because of our sedentary
lifestyle and because of air pollution and other factors, I
think that the physical condition has probably deteriorated
somewhat.
Ms. Davis of Virginia. Being over 50, I disagree with you.
[Laughter.]
Mr. Bonner. I am over 50 myself. I will tell you, I do not
relish the thought of wrestling on the ground with a 23-year-
old who is in excellent physical shape. That is the danger of
allowing people to go much beyond the mandatory age of 57. I
think that there are ways to encourage people to stay beyond
50. Many State jurisdictions increase the percentage that
people earn past that eligibility age, which is a great
incentive for them to stick around. They also raise the
percentage of salary that they can get as part of their
annuity.
We are currently capped at 80 percent. So someone in my
situation who is eligible to retire right now, I am actually
working for pennies on the dollar. When I show up to work,
instead of making $20-some-odd an hour, when you factor it
against the fact that I would be making a substantial portion
of that were I retired, there is not much of an incentive for
people to work beyond their eligibility point. We have to
change that if we truly value that experience and want to hang
onto that experience.
Ms. Davis of Virginia. Happy birthday.
Mr. Cannon. And looking forward to 57 and being able to
retire. Maybe I will do something meaningful with my life like
run for Congress after that.
One of the things that should be looked at is anything can
have exemptions. At a meeting one time, there was a detective
who had been a detective in a municipal agency up north for
quite some time. He had been working on his college degree.
Unfortunately, he did not obtain his college degree until he
was 39. He stood up and he said, one of the things that had
been his goal was to get his degree and become an FBI agent.
Well, because he had not gotten his degree until he was 39, he
is not eligible to be hired, because he came from the municipal
sector and not a Federal sector.
So there are any number of things that could be explored.
If he has law enforcement experience, credible law enforcement
experience that can be converted from a municipal sector into
Federal service, might that not be a valuable asset for an
investigative agency to get an experienced investigator, albeit
he is 2 years past his minimum age, and then either build
something on the end of it where he could finish off his career
either in another analytical portion of the FBI or whatever,
but while he could serve law enforcement during those peak
years.
So I think there are a number of things that could be
explored there.
Ms. Davis of Virginia. I think you can see we have a
difference of opinion even on the panel here.
I am going to yield to Mr. Davis and then we will have
another round of questions.
Mr. Davis of Illinois. Thank you very much, Madam
Chairwoman.
It seems to me that I detected sort of a flavor running
through the panel that you all have some difficulty with OPM
having the authority to handle this assignment on its own.
Could you tell me why? Do you feel that they do not have the
capability to do it, or are restricted? What is the reason?
Ms. Kelley. For my part, it is two issues. One is that
everything that is described in the authority they would have
is about concepts. Based on our experience to date with DHS and
OPM on the flexibilities they do have, after all this time we
are still hearing from them concepts with no specificity as to
what they will do. I expect that in the end what they do do may
be a surprise to us. We will really have had no opportunity for
meaningful input that could impact what final decisions would
be.
But probably a larger issue for us is that as each
administration changes, as each OPM Director changes, so could
the rules about LEO. These are things that we believe are so
critical, not only to employees, but to the agencies to
accomplishing their missions, that they should be in statute
and be so determined, recognizing that can be a very long and
burdensome process, but figuring out how to streamline that,
how to get the right answers and get it in the statute so that
it is something employees can depend on and not be at the whim
of a new administration or a new director throughout their
career.
That is the main issue for NTEU.
Mr. Davis of Illinois. Mr. Cannon.
Mr. Cannon. I commend you on your choice of words, Mr.
Davis, the flavor, because what I think we do not want is
Baskin-Robbins, where we have 31 flavors and we get 31
different interpretations. It needs to be codified somewhere so
that you have a model that you can go back to. I think that is
part of the problem now, is that they have different
interpretations and the implementation is so diverse.
Mr. Bonner. The fundamental problem that AFGE has with it
is that the executive branch is not directly accountable to the
people. I do not know about your ballot, but I have never been
able to vote for the Director of OPM. I can vote for Members of
Congress. I think Congress is therefore much more responsive to
the concerns of the people.
Mr. Bragg. Mr. Davis, I believe that most of the reasons
why we are concerned have been echoed already in this room.
However, the lack of definition of flexibility, throwing around
the word ``parameters.'' We believe that the decisions should
lie right here in the legislature; that the policies should
come from Congress. I have some problems with OPM's report on a
couple of different levels, but for instance a specific
example, a reference in their appendix to quit rates. They
specifically talk about the quit rates of 18-11s. However, the
quit rates for 18-11 GS-10's are lacking.
Now, FBI agents start at a GS-10. They remain there for 2
years, which means we probably have a pretty good chunk of
people that are at the GS-10 level right now. They were not in
the report. They went from seven, eight, nine to eleven,
twelve. They skipped that whole category of GS-10's. We are
concerned about that and what they are basing their answers on.
Mr. Davis of Illinois. Would a more precise definition of
law enforcement officer be helpful? And where should that
definition come from? Ms. Kelley.
Ms. Kelley. I think the definition does need to be revised.
I think it needs to be in the statute, not in the regulations
and not a definition that can be changed every 6 months or
every year or every 2 years. It needs to be in statute.
Recognizing that, my concerns about OPM's authority are in
light of the fact that we have been trying to work through
Congress for 15 years to secure law enforcement officer
recognition status for legacy Customs inspectors and canine
enforcement officers. Even with that, I still would like to see
the fix and the appropriate words and definitions be addressed
by Congress so that it is fixed and it is something employees
can count on.
Mr. Cannon. I echo Ms. Kelley's sentiments there. Quite
frankly, if it walks like a duck, it talks like a duck, and it
quacks, it should be a duck, if they are out there doing law
enforcement work. As in the situation I just explained, you
have two agencies working side by side; one has; one has not.
They are doing identical jobs. Why is one not and the other is?
Your average officer such as where I work at the U.S. Mint,
we do essentially the same job as protecting facilities,
personnel, the Director of the Mint, we have her protection.
But we do not enjoy the same benefits and pay as the Capitol
Police. Why is that?
Mr. Bonner. I agree that the definition needs to be
expanded and I think that is the proper role of Congress.
Mr. Bragg. The Chairwoman said it most succinctly earlier.
It is such a simple thing that if you go on the wall, you are
law enforcement, but it appears that within the Beltway, the
definition of law enforcement officer is a long and drawn-out
process. However, as the other members here have said, the
perception of if you are law enforcement is very simple. If you
have a uniform, you have a gun, you are exercising the
authority to make arrests to protect people, to protect
property, you are law enforcement. Again, it is a simple thing.
Mr. Davis of Illinois. Thank you very much. I guess, Mr.
Cannon, they may have thought that since you all were
protecting money and the Capitol Police were protecting the
Members, that may have given a different definition.
[Laughter.]
Thank you, Madam Chairwoman.
Ms. Davis of Virginia. Actually, Mr. Bragg, the one
question I had, you just answered. I wanted you all to give me
a definition of what is a law enforcement officer, because it
seems awful simple to me as to what one is, and that is what
you just said.
I have some constituents sitting in the back that I spoke
to a couple of weeks ago, I guess, that in their description to
me of what they do, they sound like a law enforcement officer,
but they are not. Now I find out in the prisons, the cooks are.
So I do not understand why we have a problem here. Then again,
I have not been here as long as Mr. Davis has. I have not
worked on this issue as long as he has. And I certainly did not
know you have been trying to do something, Colleen, for 15
years, which is very frustrating to me. To me, it should be
very simple. My guess is it is a question of dollars, which I
would assume that is the problem. It is usually the problem
around here.
To me, if you are law enforcement, and Mr. Cannon you stole
my line I used at the last hearing. If it walks like a duck and
quacks like a duck, it must be a duck. You guys all walk and
quack like ducks, so I guess you are all ducks.
I do not understand why we have a problem. We certainly are
going to take a look at it. As you can tell already, it is not
going to be an easy issue. It is something that I wish, Mr.
Bragg, as you said, it needs to fixed immediately. I tend to
agree with you. But immediate and Congress tends to be several
sessions of Congress, so I cannot promise you that the
subcommittee will even get anything out real quick that we can
get heard from the full committee and get to the House floor.
But you do have my word that as long as I am sitting here,
we will do all we can to try and fix and correct the problem so
that law enforcement officers are treated like law enforcement
officers. But first, we have to find out what the definition is
of a law enforcement officer.
Mr. Davis, do you any other questions?
Mr. Davis of Illinois. Other than to suggest that
regulatory action oftentimes does not take as long, and would
you be willing to run the risk in terms of the time
differential in order to get a legislative fix as opposed to an
administrative or regulatory one.
Thank you very much, Madam Chairwoman.
Ms. Davis of Virginia. Mr. Bragg.
Mr. Bragg. I think we should get it right the first time. I
would say legislative is the way to go.
Ms. Davis of Virginia. Even if it takes longer.
Mr. Bragg. The 6-month OPM report took 7 or 8 months.
Ms. Davis of Virginia. Yes, it did.
Mr. Bragg. So I think that the timeline----
Ms. Davis of Virginia. And I cannot say that I am happy
with that either, or even what it came out to say.
Does anyone else have any other comments before we close?
Well, I will say that we may end up having some more questions
that we would submit to you in writing, in which case we would
ask that you would get the answers back to us for the record.
Again, we appreciate your all being here and just know that we
do know the problem and we are going to try and fix it.
With that, the subcommittee stands adjourned.
[Whereupon, at 11:40 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
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