[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
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                     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:]

    [GRAPHIC] [TIFF OMITTED] T8745.002
    
    [GRAPHIC] [TIFF OMITTED] T8745.003
    
    [GRAPHIC] [TIFF OMITTED] T8745.004
    
    [GRAPHIC] [TIFF OMITTED] T8745.005
    
    [GRAPHIC] [TIFF OMITTED] T8745.006
    
    [GRAPHIC] [TIFF OMITTED] T8745.007
    
    [GRAPHIC] [TIFF OMITTED] T8745.008
    
    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:]

    [GRAPHIC] [TIFF OMITTED] T8745.009
    
    [GRAPHIC] [TIFF OMITTED] T8745.010
    
    [GRAPHIC] [TIFF OMITTED] T8745.011
    
    [GRAPHIC] [TIFF OMITTED] T8745.012
    
    [GRAPHIC] [TIFF OMITTED] T8745.013
    
    [GRAPHIC] [TIFF OMITTED] T8745.014
    
    [GRAPHIC] [TIFF OMITTED] T8745.015
    
    [GRAPHIC] [TIFF OMITTED] T8745.016
    
    [GRAPHIC] [TIFF OMITTED] T8745.017
    
    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:]

    [GRAPHIC] [TIFF OMITTED] T8745.018
    
    [GRAPHIC] [TIFF OMITTED] T8745.019
    
    [GRAPHIC] [TIFF OMITTED] T8745.020
    
    [GRAPHIC] [TIFF OMITTED] T8745.021
    
    [GRAPHIC] [TIFF OMITTED] T8745.022
    
    [GRAPHIC] [TIFF OMITTED] T8745.023
    
    [GRAPHIC] [TIFF OMITTED] T8745.024
    
    [GRAPHIC] [TIFF OMITTED] T8745.025
    
    [GRAPHIC] [TIFF OMITTED] T8745.026
    
    [GRAPHIC] [TIFF OMITTED] T8745.027
    
    [GRAPHIC] [TIFF OMITTED] T8745.028
    
    [GRAPHIC] [TIFF OMITTED] T8745.029
    
    [GRAPHIC] [TIFF OMITTED] T8745.030
    
    [GRAPHIC] [TIFF OMITTED] T8745.031
    
    [GRAPHIC] [TIFF OMITTED] T8745.032
    
    [GRAPHIC] [TIFF OMITTED] T8745.033
    
    [GRAPHIC] [TIFF OMITTED] T8745.034
    
    [GRAPHIC] [TIFF OMITTED] T8745.035
    
    [GRAPHIC] [TIFF OMITTED] T8745.036
    
    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:]

    [GRAPHIC] [TIFF OMITTED] T8745.037
    
    [GRAPHIC] [TIFF OMITTED] T8745.038
    
    [GRAPHIC] [TIFF OMITTED] T8745.039
    
    [GRAPHIC] [TIFF OMITTED] T8745.040
    
    [GRAPHIC] [TIFF OMITTED] T8745.041
    
    [GRAPHIC] [TIFF OMITTED] T8745.042
    
    [GRAPHIC] [TIFF OMITTED] T8745.043
    
    [GRAPHIC] [TIFF OMITTED] T8745.044
    
    [GRAPHIC] [TIFF OMITTED] T8745.045
    
    [GRAPHIC] [TIFF OMITTED] T8745.046
    
    [GRAPHIC] [TIFF OMITTED] T8745.047
    
    [GRAPHIC] [TIFF OMITTED] T8745.048
    
    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:]

    [GRAPHIC] [TIFF OMITTED] T8745.049
    
    [GRAPHIC] [TIFF OMITTED] T8745.050
    
    [GRAPHIC] [TIFF OMITTED] T8745.051
    
    [GRAPHIC] [TIFF OMITTED] T8745.052
    
    [GRAPHIC] [TIFF OMITTED] T8745.053
    
    [GRAPHIC] [TIFF OMITTED] T8745.054
    
    [GRAPHIC] [TIFF OMITTED] T8745.055
    
    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.]
    [Additional information submitted for the hearing record 
follows:]

[GRAPHIC] [TIFF OMITTED] T8745.056

[GRAPHIC] [TIFF OMITTED] T8745.057

[GRAPHIC] [TIFF OMITTED] T8745.058

[GRAPHIC] [TIFF OMITTED] T8745.059

[GRAPHIC] [TIFF OMITTED] T8745.060

[GRAPHIC] [TIFF OMITTED] T8745.061

                                 
