    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

       H.R. 5600, THE DISTRICT OF COLUMBIA COURT, OFFENDER SUPERVISION,
            PAROLE, AND PUBLIC DEFENDER EMPLOYEES EQUITY ACT OF 2008

    =======================================================================

                                    HEARING

                                   before the

                       SUBCOMMITTEE ON FEDERAL WORKFORCE,
                        POSTAL SERVICE, AND THE DISTRICT
                                  OF COLUMBIA

                                     of the

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                       ON

                                   H.R. 5600

      TO PERMIT NONJUDICIAL EMPLOYEES OF THE DISTRICT OF COLUMBIA COURTS,
         EMPLOYEES TRANSFERRED TO THE PRETRAIL SERVICES, PAROLE, ADULT
       PROBATION, AND OFFENDER SUPERVISION TRUSTEE, AND EMPLOYEES OF THE
    DISTRICT OF COLUMBIA PUBLIC DEFENDER SERVICE TO HAVE PERIODS OF SERVICE
      PERFORMED PRIOR TO THE ENACTMENT OF THE BALANCED BUDGET ACT OF 1997
    INCLUDED AS PART OF THE YEARS OF SERVIVCE USED TO DETERMINE THE TIME AT
     WHICH SUCH EMPLOYEES ARE ELIGIBLE TO RETIRE UNDER CHAPTER 84 OF TITLE
                 5, UNITED STATES CODE, AND FOR OTHER PURPOSES
                                   __________

                                 JULY 15, 2008

                                   __________

                               Serial No. 110-145

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

      Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                   index.html
                         http://www.oversight.house.gov

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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     HENRY A. WAXMAN, California, Chairman
    EDOLPHUS TOWNS, New York             TOM DAVIS, Virginia
    PAUL E. KANJORSKI, Pennsylvania      DAN BURTON, Indiana
    CAROLYN B. MALONEY, New York         CHRISTOPHER SHAYS, Connecticut
    ELIJAH E. CUMMINGS, Maryland         JOHN M. McHUGH, New York
    DENNIS J. KUCINICH, Ohio             JOHN L. MICA, Florida
    DANNY K. DAVIS, Illinois             MARK E. SOUDER, Indiana
    JOHN F. TIERNEY, Massachusetts       TODD RUSSELL PLATTS, Pennsylvania
    WM. LACY CLAY, Missouri              CHRIS CANNON, Utah
    DIANE E. WATSON, California          JOHN J. DUNCAN, Jr., Tennessee
    STEPHEN F. LYNCH, Massachusetts      MICHAEL R. TURNER, Ohio
    BRIAN HIGGINS, New York              DARRELL E. ISSA, California
    JOHN A. YARMUTH, Kentucky            KENNY MARCHANT, Texas
    BRUCE L. BRALEY, Iowa                LYNN A. WESTMORELAND, Georgia
    ELEANOR HOLMES NORTON, District of   PATRICK T. McHENRY, North Carolina
        Columbia                         VIRGINIA FOXX, North Carolina
    BETTY McCOLLUM, Minnesota            BRIAN P. BILBRAY, California
    JIM COOPER, Tennessee                BILL SALI, Idaho
    CHRIS VAN HOLLEN, Maryland           JIM JORDAN, Ohio
    PAUL W. HODES, New Hampshire
    CHRISTOPHER S. MURPHY, Connecticut
    JOHN P. SARBANES, Maryland
    PETER WELCH, Vermont
    JACKIE SPEIER, California

                          Phil Barnett, Staff Director
                           Earley Green, Chief Clerk
                   Lawrence Halloran, Minority Staff Director

    Subcommittee on Federal Workforce, Postal Service, and the District of
                                    Columbia

                            DANNY K. DAVIS, Illinois
    ELEANOR HOLMES NORTON, District of   KENNY MARCHANT, Texas
        Columbia                         JOHN M. McHUGH, New York
    JOHN P. SARBANES, Maryland           JOHN L. MICA, Florida
    ELIJAH E. CUMMINGS, Maryland         DARRELL E. ISSA, California
    DENNIS J. KUCINICH, Ohio, Chairman   JIM JORDAN, Ohio
    WM. LACY CLAY, Missouri
    STEPHEN F. LYNCH, Massachusetts
                          Tania Shand, Staff Director
                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on July 15, 2008....................................     1
    Text of H.R. 5600................................................    19
    Statement of:
        Kichak, Nancy H., Associate Director for Strategic Human
          Resources Policy, U.S. Office of Personnel Management......    35
        Wicks, Anne B., executive officer, District of Columbia
          courts, accompanied by Kathy Holiday Crawford, probation
          officer, Social Services Division, District of Columbia
          Family Court; Paul A. Quander, Jr., director, Court
          Services and Offender Supervision Agency of the District of
          Columbia; and Avis E. Buchanan, director, Public Defender
          Service for the District of Columbia.......................    53
            Buchanan, Avis E.........................................    66
            Crawford, Kathy Holiday..................................    73
            Quander, Paul A., Jr.....................................    63
            Wicks, Anne B............................................    53
    Letters, statements, etc., submitted for the record by:
        Buchanan, Avis E., director, Public Defender Service for the
          District of Columbia, prepared statement of................    68
        Cummings, Hon. Elijah E., a Representative in Congress from
          the State of Marfyland, prepared statement of..............    31
        Davis, Hon. Danny K., a Representative in Congress from the
          State of Illinois:
            Prepared statement of....................................    15
            Various prepared statements..............................     2
        Kichak, Nancy H., Associate Director for Strategic Human
          Resources Policy, U.S. Office of Personnel Management,
          prepared statement of......................................    37
        Marcant, Hon. Kenny, a Representative in Congress from the
          State of Texas, prepared statement of......................    25
        Quander, Paul A., Jr., director, Court Services and Offender
          Supervision Agency of the District of Columbia, prepared
          statement of...............................................    64
        Wicks, Anne B., executive officer, District of Columbia
          courts, prepared statement of..............................    55

       H.R. 5600, THE DISTRICT OF COLUMBIA COURT, OFFENDER SUPERVISION,
            PAROLE, AND PUBLIC DEFENDER EMPLOYEES EQUITY ACT OF 2008

                                  ----------

                             TUESDAY, JULY 15, 2008

                      House of Representatives,
    Subcommittee on Federal Workforce, Postal Service,
                          and the District of Columbia,
                  Committee on Oversight and Government Reform,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 2:39 p.m., in
    room 2154, Rayburn House Office Building, Hon. Danny K. Davis
    (chairman of the subcommittee) presiding.
        Present: Representatives Davis, Norton, Cummings, and
    Marchant.
        Staff present: William Miles, professional staff member;
    and Marcus A. Williams, clerk/press secretary.
        Mr. Davis. We are going to move into our hearing on the
    District of Columbia Court, Offender Supervision, Parole, and
    Public Defender Employees Equity Act of 2008. The subcommittee
    will now come to order.
        Welcome, Ranking Member Marchant, members of the
    subcommittee, hearing witnesses and all those in attendance, to
    the Subcommittee on the Federal Workforce, Postal Service, and
    District of Columbia's hearing entitled, ``H.R. 5600, the
    District of Columbia Court, Offender Supervision, Parole, and
    Public Defender Employees Equity Act of 2008.''
        Hearing no objection, the Chair will ask unanimous consent
    to allow the testimonies of the following individuals: William
    L. Askew, Patrice Irick, Thomas T. Abraham, Kevin Brannon,
    Rodney C. Corbin, Shawn Edward Dickerson, Ricardo Green, Diana
    Miles, Linda Suzanne Rupard, Ardina Yvette Van, April Davis,
    Alicia Holder, Deborah Ward, Neville Campbell-Adams and George
    Hughson to be added to the record.
        Hearing no objection, so ordered.
        The Chair, ranking member and subcommittee members will
    each have 5 minutes to make opening statements, and all Members
    will have 3 days to submit statements for the record.
        Hearing no objection, so ordered.
        [The information referred to follows:]
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        Mr. Davis. I will read a brief opening statement.
        Today, the subcommittee is holding a hearing to examine
    H.R. 5600, the District of Columbia Court, Offender
    Supervision, Parole, and Public Defender Employees Equity Act
    of 2008. The bill, which was introduced by Representative
    Eleanor Holmes Norton on March 12, 2008, would permit former
    D.C. government and independent agency employees to count the
    years of service they performed prior to 1997 toward their
    Federal creditable service which determines an individual's
    eligibility for retirement.
        Passage of the National Capital Revitalization and Self-
    Government Improvement Act of 1997 brought about a transfer of
    several of the District's criminal justice functions to the
    Federal Government, which has adversely impacted hundreds of
    employees who lost their prior service time. These employees
    were forced to shift their source of employment as a result of
    the enactment of the 1997 Revitalization Act. People who for
    years performed functions and duties under the D.C. government
    banner found themselves seeking employment opportunities to do
    almost the same jobs, but on the Federal level.
        Although many of the individuals were fortunate enough to
    secure employment with newly created Federal entities and are
    to become considered as Federal employees for the purpose of
    pay in benefits, none of these individuals were allowed to have
    their previous years of work included in the calculation of
    their creditable service which is used to determine an
    employee's eligibility for retirement under the Federal
    Employees Retirement Service.
        What we are witnessing today are dozens of employees who
    would normally be ready for retirement being forced to work
    additional years, sometimes an entire decade, because of an
    inability to incorporate their previous years of related
    service. H.R. 5600 seeks to remedy this problem by allowing the
    service these Federal workers performed prior to 1997 to count
    as creditable service for the purpose of determining an
    employee's eligibility for retirement only and not an
    employee's annuity amount.
        I understand that the bill may need some fine tuning to
    ensure that all affected persons and agencies are covered, and
    I anticipate that those issues will be addressed in some of the
    testimony being presented today.
        The support that this bill has received from groups like
    the American Federation of Government Employees and the
    hundreds of employees affected highlights the importance of
    quickly moving this legislation toward enactment.
        I thank Congresswoman Norton and Ranking Member Tom Davis
    for all the hard work they have put in on this issue over the
    past several years, and I also want to thank today's witnesses
    for participating in this afternoon's hearing.
        I would now like to yield to Ranking Member Marchant for
    any opening comments that he would have.
        [The prepared statement of Hon. Danny K. Davis and the text
    of H.R. 5600 follow:]
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        Mr. Marchant. Thank you, Mr. Chairman. As I understand it,
    House H.R. 5600 introduced by Congresswoman Norton and
    Congressman Tom Davis would restore retirement credit that
    certain employees lost when non-judicial employees became
    Federal employees as the Federal Government assumed the D.C.
    court function in 1997.
        The context of the 1997 National Capital Revitalization and
    Self-Government Improvement Act is important. At the time, the
    city was beginning to recover from a spending and management
    crisis of epic proportion. Congressman Davis, who was then
    chairman of the District of Columbia Subcommittee, is to be
    commended for working in a truly bipartisan way with Delegate
    Eleanor Holmes Norton to address this crisis.
        In 1997, with patience and perseverance, the Control Board
    created by Congress in 1995 was having its intended effect;
    much needed discipline was instilled into the budget process.
    The city's return to the private financial market was solid
    evidence that Congress did produce more creditable numbers and
    better performance.
        The success of the Control Board made revitalization
    possible in 1997. The enactment included a fundamental
    restructuring of the relationship between the Federal
    Government and the Nation's Capital. Part of this massive
    restructuring included subtitle (c), criminal justice area.
    Also included in that was the Federal assumption of the costs
    associated with the District of Columbia courts, around $136
    million in 1998. The Federal assumption of funding
    responsibility for the court system included probation, public
    defender services and pretrial services, which became a Federal
    agency.
        The courts continue to be self-managed. The D.C. parole,
    probation and pretrial services were operated by a Federal
    trustee until they met the Federal standards to become a
    Federal agency. As a consequence of that, there was a loss of
    creditable service by former D.C. employees.
        The legislation before us will rectify this by providing
    that service before the transfer of authority would count
    toward an overall Federal retirement eligibility as creditable
    service; the Public Defender was shifted in 1998, so they would
    get credit for any service prior to that; and included
    employees still entitled to D.C. and retirement benefits would
    be prohibited from double-dipping.
        I appreciate the opportunity to have this hearing today and
    learn more about this issue.
        Mr. Chairman, thank you.
        [The prepared statement of Hon. Kenny Marchant follows:]
        [GRAPHIC] [TIFF OMITTED] 48589.017

        [GRAPHIC] [TIFF OMITTED] 48589.018

        [GRAPHIC] [TIFF OMITTED] 48589.019

        Mr. Davis. Thank you very much, Mr. Marchant.
        Let me ask if any other Members have opening comments.
        Ms. Norton.
        Ms. Norton. Mr. Chairman, since this issue arose, I have
    put in a bill every year when Representative Davis was the
    Chair of the committee. He cosponsored it with me, and I am
    grateful that he has continued to cosponsor it now as ranking
    member.
        Mr. Chairman, I have to say that not since I have been in
    Congress have I seen a technical oversight that has done such
    an accumulated injustice to a group of Americans. Nothing is
    more valuable to people than working your whole life and then
    deciding when to retire upon the time that is generally
    prescribed. Time cannot be recaptured. Whatever we do here, the
    failure to correct this error immediately will leave a terrible
    mark on the Congress.
        As I shall indicate, there was no intent when we passed the
    Revitalization Act to punish or penalize any employee. In fact,
    the employees generally did not oppose the act, in no small
    part because of our guarantee that the act was designed to
    remove certain costs from the District of Columbia, State costs
    that no city bears, and that nobody was going to be hurt.
        We did not keep our word, and if we were going to break our
    word, we certainly chose the worst of the benefits to do so
    because there are employees, now Federal employees, who will
    never be made whole, for no reason except the Congress did not
    act promptly.
        You have outlined very clearly, Mr. Chairman--and I will
    not repeat--what this bill does. I will only say that these
    employees are only asking for the time they have already
    accumulated. They are asking for time they accumulated before
    the Revitalization Act was passed in 1997 and not one thing
    more.
        They lost this time without any notice when the error was
    made, and they lost their so-called ``creditable service.''
    They became FERS employees--and the definition of ``creditable
    service'' there is somewhat different--and all it took was
    aligning these employees with the Federal employees they had
    become. It was the only decent thing to do.
        I certainly don't blame this on the Republican minority
    that worked so closely with me on the Revitalization Act.
    Everybody worked together on that bill with the President of
    the United States, and yet this is, by far, its major flaw.
        I just ask you, Mr. Chairman, suppose you were 60 years old
    at the time of the act and you had been an employee for 20
    years working for the people of the District of Columbia. Does
    anyone think that you deserve to work 13 more years in order to
    retire? Can that case possibly be decently made by anyone?
        Mr. Chairman, it has been very painful to see time
    accumulate, because it is like a ticking bomb. It is time; it
    is gone.
        And I knew for a while that the Federal Government was not
    going to do anything to compensate these employees for having
    lost some of that time. For one thing, it would be difficult to
    figure out when people wanted to retire given the ADEA, the Age
    Discrimination Employment Act. If I may say so, if I myself had
    been in private practice, what would have occurred to me would
    have been to bring a suit under the Age Discrimination and
    Employment Act, which in fact covers the Federal Government,
    because under that act you can work as long as you please. You
    cannot be made to retire. In fact, the whole point was to
    remove the government from the decision to retire; and I
    continue to believe there has been a violation by the Federal
    Government of the ADEA.
        What makes it particularly painful is that the bill has
    been at pains to eliminate the possibility of double-dipping.
        Nor have these employees asked to be credited with funds
    from the Federal Government during the period before they
    serve--only the time served. They have the annuity from the
    District Government. They are not asking for anything from us
    that they do not deserve; they are asking for their time.
        If we want to add insult to injury, we can argue that the
    Federal Government incurs some financial liability here.
        Now, if you really want to build on the nonremedial aspect,
    you might want to argue that, well, we are going to lose
    something in the Federal Government. That is palpable nonsense,
    Mr. Chairman. The argument might be made on the basis, well,
    the Federal Government is paying out this money--its share of
    the money, understand--at an earlier moment than it might have
    wished to.
        Mr. Chairman, nobody knows when people are going to retire.
    The government doesn't know for 1 second when Federal employees
    will pick up their marbles and go home, and that is one of the
    reasons we are having such a problem in retaining Federal
    employees. They don't have the slightest idea. Once they reach
    the point of early retirement, they can say, Bye-bye, Federal
    Government, I am going to take this marvelous training, I am
    going to go work for a contractor, I am going to go home and
    sit; now just give me my money.
        Under the ADEA, they can stay here until they are as old as
    Methuselah; and you don't know when they are going to retire
    and you had better not ask them. So any claim that somehow you
    are calling on Federal money before you are supposed to assumes
    that there was a time you were supposed to.
        If anything, the Federal Government ought to be here with
    an apology rather than any resistance to this bill. It makes me
    mad and I am not even involved. I would hate to be somebody who
    was supposed to retire any time during this interval and be
    told, you just sit tight as long as we say so. Or worse, sit
    tight for X number of years; you will be the only Federal
    employees who are so required. And that is why I say it is a
    violation of the ADEA.
        The least we can do, Mr. Chairman, is to do what I hope we
    will do here today. Hear everyone out, rapidly pass this bill
    before this session, which is due to end somewhat earlier than
    usual, do so with an apology to these employees, and try never
    to repeat this kind of error again.
        I do want to note for the record that anyone who argues
    that there was any intent to, in fact, deprive these employees
    of their service needs to cite the record from the
    Revitalization Act to this committee. Because I will cite to
    them exactly the opposite in the act and in its report.
        We have made a promise to these employees. We need this
    transfer. We know you are nervous. Not to worry. This is the
    sacred promise of the Federal Government of the United States;
    and we then proceeded to break it. Let's try to make these
    employees as whole as we can, for they shall never be whole,
    but as whole as we can by not depriving them of another minute
    of service time to which they are entitled.
        And I thank you, Mr. Chairman.
        Mr. Davis. Thank you very much, Ms. Norton. Thank you very
    much.
        Mr. Cummings.
        Mr. Cummings. Mr. Chairman, I just want to associate myself
    with the words of the distinguished representative from the
    District of Columbia.
        You know, Mr. Chairman, I often say that we have one life
    to live and this is no dress rehearsal; this is that life. When
    people have worked hard and have given their blood, their
    sweat, and their tears to make it possible for others to live
    the best life that they can, they should not be deprived of
    that which is due them. We are not doing them any big favor,
    just giving them what they have earned.
        And so, I am excited about this legislation and I just hope
    that we can get it pushed over the line as fast as we possibly
    can so that these folks can get what they have earned.
        And with that Mr. Chairman. I yield back.
        [The prepared statement of Hon. Elijah E. Cummings
    follows:]
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        Mr. Davis. Thank you very much, Mr. Cummings.
        And I would ask unanimous consent that Members would have 3
    legislative days in which to revise and extend their remarks.
        Hearing no objection, so ordered.
        And we now would move to our witnesses.
        Our first witness will be Ms. Nancy Kichak. She was named
    Associate Director for the Human Resources Policy Division of
    the Office of Personnel Management [OPM], in September 2005.
    Ms. Kichak leads the design, development and implementation of
    innovative, flexible and merit-based human resource policies;
    and we are delighted to have her here to testify, as she does
    so regularly with us, from the Office of Personnel Management.
        If you would stand, it is the tradition of this committee
    that witnesses be sworn in.
        [Witness sworn.]
        Mr. Davis. The record will show that the witness answered
    in the affirmative.
        Ms. Kichak, if you would, summarize for us in 5 minutes
    your written statement, which will be in the record. We get
    down to the lights, that they are now working. The yellow light
    is an indication that there is a minute in which to wrap up.
        Thank you so very much. We appreciate your being here.
    Please proceed.

    STATEMENT OF NANCY H. KICHAK, ASSOCIATE DIRECTOR FOR STRATEGIC
      HUMAN RESOURCES POLICY, U.S. OFFICE OF PERSONNEL MANAGEMENT

        Ms. Kichak. Good afternoon, Mr. Chairman, Ranking Member
    Marchant, and members of the subcommittee. I appreciate the
    opportunity to be here today to discuss the proposed bill, H.R.
    5600.
        The National Capital Revitalization and Self-Government
    Improvement Act of 1997, as amended, which was part of the
    Balanced Budget Act of 1997, stipulated the four groups of
    civil service servants have their future retirement coverage
    covered by the Federal Employees Retirement Systems [FERS]. The
    four employee groups were as follows: nonjudicial employees of
    the District of Columbia of Columbia courts; employees whose
    functions were transferred to the pretrial services, parole,
    adult supervision, and offender supervision trustee; employees
    of the Public Defender Service hired before enactment of the
    District of Columbia Courts and Justice Technical Corrections
    Act of 1998; and individuals appointed under the priority
    consideration program of the Bureau of Prisons.
        Prior to placement in the first system, these employees
    were covered by a defined contribution retirement plan similar
    in nature and benefit level to the Thrift Savings Plan. Upon
    the bill's enactment, these employees retained their defined
    contribution plan benefits from the District of Columbia, and
    those who did not have sufficient time for vesting under the
    D.C. defined contribution retirement plan were permitted to
    count their subsequent service so as to achieve vesting,
    ensuring that no benefits were lost due to this legislation.
    Instead, employee benefits were increased by providing coverage
    under a defined benefit plan based on years of service while
    continuing participation in a defined contribution plan and
    coverage under Social Security. Also, health benefits were now
    provided that continue into retirement.
        Under FERS, individuals are eligible to retire with a
    minimum of 5 years of FERS-covered service as age 62 without a
    reduction to their annuities. An individual with at least 10
    years of FERS covered service may retire at the minimum
    retirement age with a slight reduction. The minimum retirement
    age is between ages 55 and 57, depending upon the individual's
    date of birth.
        As it has been 11 years since passage of Public Law 105-33,
    the individuals covered by H.R. 5600 will be eligible to take
    advantage of the first provision for those with 10 years of
    service, once they reach their minimum retirement age, and will
    be eligible to retire without a reduction upon reaching age 62.
    H.R. 5600 will not modify the computational structure
    applicable to their employment under FERS, nor will it make
    their prior service creditable toward the computation of FERS
    benefits. However, it will permit that service to be creditable
    solely for the purpose of eligibility for annuity so that
    affected individuals will be permitted to retire at the time
    that they would have been eligible had all of their service
    been performed under a single system.
        These provisions increase costs to the retirement fund
    through the early provision of benefits and thus the loss of
    employee-employer contributions equal to 12 percent of salary.
    The proposed legislation makes no provision for funding these
    costs.
        A number of the individuals covered by this bill are
    currently employed in positions as law enforcement officers. As
    drafted, H.R. 5600 would not make the prior District service
    creditable toward early retirement as a law enforcement officer
    because the proposed bill does not define this service as
    creditable under the law enforcement officer provisions.
        If law enforcement credit were granted, costs for these
    employees would be significantly higher due to the more
    generous benefit structure and the loss of employer and
    employee contributions at a rate of 26.2 percent of pay. Full
    cost funding is an important principle of the first system, and
    we believe the provisions of H.R. 5600 should be in compliance
    with this principle.
        In conclusion, we have policy and financial concerns with
    aspects of this proposal, and accordingly, we cannot support
    it.
        Thank you for inviting me here to testify today. I would be
    glad to answer any questions.
        Mr. Davis. Thank you very much, Ms. Kichak.
        [The prepared statement of Ms. Kichak follows:]
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        [GRAPHIC] [TIFF OMITTED] 48589.029

        Mr. Davis. I am going to yield to the ranking member, Mr.
    Marchant, to begin the questioning.
        Mr. Marchant. Thank you.
        How does this bill prevent double-dipping by any of the
    employees that are still entitled to their D.C. retirement
    benefits?
        Ms. Kichak. Well, the bill does not include their service
    in the first calculation. It only allows that service to be
    creditable to make them eligible. So they will not be paid
    twice or accrue a computation for the service; however, they
    will be able to start receiving their annuity earlier.
        Mr. Marchant. I think you probably answered this question
    in your testimony.
        The legislation is not revenue neutral.
        Ms. Kichak. That is correct.
        Mr. Marchant. Has there been a computation made as to the
    cost to implement that would compensate and make it a neutral
    transaction for FERS?
        Ms. Kichak. Right now, the bill does not permit service to
    be computed the way it is drafted for law enforcement officer
    coverage. We think it was intent that is an unintended
    consequence, because we know a lot of these people are law
    enforcement officers. So we have done two computations.
        Roughly speaking, and as was pointed out earlier, when you
    do these computations you have to assume, on average, when
    people will retire. Based on patterns of retirement for each
    law enforcement person covered, the increase in cost under this
    bill is roughly $50,000--roughly; and for employees not in law
    enforcement, about $2,500 per person.
        Mr. Marchant. OK. So the $50,000 is per person?
        Ms. Kichak. For a law enforcement officer. They retire
    earlier, so they would start receiving their benefit earlier.
    They have a higher benefit computation in recognition of the
    fact that they have a shorter career.
        And we lose revenue because, had they worked under the
    first system, there would have been contributions into the fund
    by both them, at a higher rate of pay, and their employer.
        Mr. Marchant. Is there some precedent in the FERS system
    where any other instances like this have ever taken place?
        Ms. Kichak. We cannot identify any other similar instance.
        Mr. Marchant. So is the bill drafted to where it does not
    set a precedent for----
        Ms. Kichak. We think that the bill would set precedent.
        Mr. Marchant. OK. So your concern is that it sets
    precedent. And you have the----
        Ms. Kichak. And has a cost.
        Mr. Marchant. And it has a cost. And the cost has to be
    defrayed in some way?
        Ms. Kichak. Yes.
        Mr. Marchant. I think those are my questions, Madam Chair.
        Ms. Norton [presiding]. Thank you, Ms. Kichak, for your
    testimony.
        Quoting from your testimony, page 3, ``While they will
    receive,'' these employees--it is the next to last paragraph--
    ``benefits under FERS proportionate to their FERS-covered
    service, they will have to wait somewhat longer to be eligible
    for those benefits than if their service had been performed
    under a single plan.''
        I ask you to cite the authority in the legislative record
    for that statement. In other words, I am asking you, since this
    was an entirely new bill that had to be written out of whole
    cloth. You have given us an interpretation, therefore, without
    citing any authority for the interpretation that I have just
    indicated. That rather much summarizes your testimony.
        Ms. Kichak. OK. I don't have the specific cite under Title
    5 with me, but it very clearly says that their service will be
    counted from the day they became covered under FERS. And we
    could point to that----
        Ms. Norton. Well, obviously that service will be counted
    from the time they were covered under FERS.
        Ms. Kichak. Right.
        Ms. Norton. This hearing goes to whether or not their
    service before being covered by FERS is to be given any credit.
        Are you testifying that it was the intent of the Congress
    of the United States to deprive these employees of years of
    service they would have received had they remained subject to
    the authority of the District of Columbia? Is that your
    testimony here this morning?
        Ms. Kichak. No. My testimony is that the law, as it is
    currently written, gives credit only for the time they have
    served under the FERS system.
        Ms. Norton. Oh, you will have to supply for the record, if
    you would, what you are basing that on. If you are to cite a
    single sentence without looking at the entire bill is to invite
    us to ignore your testimony.
        There was a great deal of testimony about what we were
    doing. The ranking member, Mr. Davis, was there; I was there
    every step of the way. I submit to you that the Congress was
    very clear that bringing these employees into the Federal
    sector would be without prejudice.
        And I ask you to tell me whether or not, if we transferred
    Federal employees to another sector, we could possibly have
    done so without informing them of any losses. Are you therefore
    saying that these employees lost time and the Congress intended
    them to lose their service before their eligibility for
    retirement, before they were transferred to the Federal
    Government?
        You are saying that was the intent of Congress?
        Ms. Kichak. I am not. I am not speaking about the intent of
    Congress. We administer the law as it is written in Title 5
    today, and that is what we are basing it on.
        Ms. Norton. I suggest to you, Ms. Kichak, that you are
    citing a sentence from the law without looking at the entire
    record. I ask you to do this committee the service of looking
    at that record, if you would.
        In any case, as I indicated, the record would include the
    statements, the promise of the Congress that it did not and
    would not deprive people of their eligibility for retirement.
        Now, the notion that somehow or the other we intended that
    and that these employees would sit on their rights, is not only
    unpersuasive, it is incredible. And it is even worse to suggest
    that the Congress of the United States would, in fact, deprive
    people of their retirement time without, in fact, so informing
    them.
        Now, I could accept your testimony if you said, we made a
    mistake. But you have testified here that is what Congress
    intended, and you have done so without citing to me the entire
    record, including the parts of the record which indicated we
    intended to deprive these employees of nothing. So as long as
    you are going to cite a single sentence, it does seem to me you
    have to back that up with what it is Congress said in its
    fullness.
        You concede that what happened with the law enforcement
    officers does not reflect what Congress intended, do you not?
        Ms. Kichak. What I meant to say was, I don't think that is
    what was meant by the folks that have drafted this bill. But I
    would need the changes in the legislation to verify that you
    wanted those changes made.
        Ms. Norton. Now, I read with interest the part of your
    testimony--this sentence: ``If law enforcement credit was
    granted''--and I want to know if you would apply this to others
    as well. ``If law enforcement credit was granted, costs for
    these employees would be significantly higher due to the more
    liberal benefits structure and the loss of employer and
    employee contributions at the higher rate.'' And you cited 26.2
    percent.
        Ms. Kichak. Right.
        Ms. Norton. Is that your testimony with respect to the
    other employees?
        Ms. Kichak. For the other employees who are under the
    regular system, the loss of income is 12 percent in pension
    funding.
        Ms. Norton. Now, you may have heard my opening statement. I
    can understand the law enforcement at least a little better,
    because law enforcement retires earlier.
        I would like to know the basis for your--what is it, 12
    percent?
        Mr. Kichak. Twelve percent.
        Ms. Norton. Twelve percent. Would cost the FERS 12 percent?
        Ms. Kichak. Yes.
        Ms. Norton. I would like to know the basis for that
    statement.
        Ms. Kichak. Twelve percent is what is called the ``normal
    cost'' of the retirement system, and under FERS today----
        Ms. Norton. What do you know about the normal cost of these
    D.C. employees?
        Now, they were in the FERS system. Did you ask what was the
    normal cost or normal retirement age when they were in the D.C.
    system, where they would have accumulated whatever expectation
    they would have had?
        Ms. Kichak. In the D.C. system, as a defined contribution
    plan, they could have, once they were vested, resigned at any
    time and taken their money out in an annuity or whatever, very
    similar to what you can do today under the Thrift Savings Plan.
    So they were at----
        Ms. Norton. And you are aware that the D.C. bill is a
    carryover from no Home Rule, so that this bill rather much
    reflects the thinking that the Congress put in effect at that
    time. Go ahead.
        Ms. Kichak. Well, my background, before I came to the job I
    currently have, was as the Chief Actuary at OPM. And ``normal
    cost'' is a technical actuarial term based upon the future
    benefits, based on the average rates of decrement of folks in a
    system.
        So the 12 percent normal cost is, indeed, based on
    averages, and it is based on the experience, and continually
    reviewed and updated of the--well, it is not 1.8 million in
    FERS, but of all of the hundreds of thousands of people in the
    FERS system. And under pension funding, FERS pension funding
    today, for every employee covered by FERS 12 percent is
    supposed to be contributed from the entry on duty until
    retirement; and the loss for giving folks credit toward
    retirement and not making that funding would cause an unfunded
    liability in the FERS system.
        Ms. Norton. Now, where in the record can you cite
    congressional concern that bringing these employees over would
    put a burden on the FERS system if, in fact, they came over
    with their time accumulated in the District?
        Cite me to that part of the record.
        Ms. Kichak. The record there would be in the establishment
    of the FERS system, which was designed to be a fully funded
    system back when it was established.
        Ms. Norton. Would you explain why these employees are
    coming over to the FERS system in the first place?
        Ms. Kichak. Because the law stipulated that they would.
        Ms. Norton. Well, they are coming over in the FERS system.
    What about the D.C. system?
        They came from a system like that in the District of
    Columbia; is that not true?
        Ms. Kichak. They came from a system in the District of
    Columbia whose service did not count toward their pension under
    FERS.
        Ms. Norton. No, that is your conclusion, please. That is
    what you have concluded.
        I am asking, first of all, would all these employees come
    under the FERS system, the employees that are at issue here?
        Ms. Kichak. We believed that most of them would be, and
    that is how we analyzed that.
        We have recently become aware in other statements we have
    seen, that some of these would be under CSRS offset; but we
    believe that most of them would be under FERS. And the data
    that we were provided by the district court was for folks that
    would be under FERS.
        Ms. Norton. And you concluded that they would be under FERS
    for what reason? Because they were under a FERS-type system in
    the District of Columbia?
        Ms. Kichak. No. Because they entered into our system and
    became covered under FERS after FERS was established.
        FERS became the system----
        Ms. Norton. Wait a minute. FERS, our employees are no
    longer covered by FERS. Is that right?
        Ms. Kichak. Our employees are covered by FERS today.
        Ms. Norton. Excuse me. The opposite.
        Ms. Kichak. Right.
        Ms. Norton. These employees are now entering a FERS system.
        Ms. Kichak. Correct. Which has been the system----
        Ms. Norton. What kind of system were they in before?
        Ms. Kichak. They were in a defined contribution plan.
        Ms. Norton. Isn't that the point, Ms. Kichak? That they
    entered the District government and offered their service in a
    defined contribution plan?
        Well, let me cite this example to you. The Federal
    Government went from a defined benefit to a defined
    contribution. Did any Federal employee suffer when the Federal
    Government changed over from one kind of plan to the other?
        Ms. Kichak. For folks hired----
        Ms. Norton. Was there any penalty to Federal employees when
    the Federal Government decided to make that very switch that
    you have just described?
        Ms. Kichak. No one who was covered by the Federal system,
    CSRS, that was in place when FERS was established was
    penalized. They were in a CSRS system, and they were in a Civil
    Service Retirement System and they stayed in a Civil Service
    Retirement System.
        Ms. Norton. Thank you, Ms. Kichak. That is my point.
        The District of Columbia employees were in a system like
    CSRS. They come to the Federal Government. They do not ask for
    anything special except that they recognize they are coming
    into a system, a FERS system.
        If your testimony is that Congress did not penalize any
    employees when they moved over from one retirement system to
    another, how can you offer testimony today that the Congress
    would have treated the District of Columbia employees, who are
    becoming Federal employees, any differently from what they
    treated the CSRS employees whom they were at pains to make sure
    were not penalized, as you have testified here today?
        Ms. Kichak. The folks from the D.C. system were in a
    defined contribution plan. Before enactment of this
    legislation, they did not have access to a defined benefit
    plan. They were not in the same system. They entered a new
    system.
        Ms. Norton. Aren't some of the employees of the District of
    Columbia under that very system, the FERS system, a FERS-type
    system?
        Ms. Kichak. The FERS system has three components. The FERS
    system has the defined contribution plan, which is Thrift, it
    has Social Security, and it has a defined benefit plan.
        The employees impacted by this legislation had only two of
    those three. When they entered into the new system and became
    covered under FERS, they had an enhancement in benefits. It was
    an enhancement in benefits.
        Ms. Norton. Well, it is hard--and no one is asking for more
    benefits, Ms. Kichak. We are talking about time, and not
    benefits. They are not asking for a dime.
        Now, your testimony about 12 percent I simply have to ask
    you about. Yes, you can do the actuarial 12 percent, but is it
    not the case that in point of fact that is the only way you
    have of doing it because you don't have a clue as to when
    people will retire?
        Ms. Kichak. For a large group, because----
        Ms. Norton. Excuse me, did you look at the District of
    Columbia group or did you look at the Federal group? Did you
    compare the District of Columbia group, and when they retired,
    with Federal employees, and when they are likely to retire? Or
    did you look at FERS employees?
        Ms. Kichak. We looked at FERS employees. We don't have
    enough data for this specific group of people.
        Ms. Norton. You do have sufficient data. All you would have
    to do is ask the District of Columbia for it.
        You wouldn't need it for these employees, but if you were
    trying to make some kind of fair assessment, what you might
    want to do is look at what their actuarial retirement age was
    in the District of Columbia, or years they were in the District
    of Columbia; at least make some kind of comparison that way, if
    that is what you wanted to stand on and did not want to stand
    on equal treatment with the way in which we treated CSRS people
    who came to FERS. And that is the heart of the matter.
        Congress has indicated its intent. Because Congress did
    not--goodness, I am sorry, Mr. Chairman--because Congress did
    not penalize any Federal employee. And your testimony is here
    that although Congress did not penalize any Federal employee,
    it was quick to take time from employees of the District of
    Columbia who were in the exact situation of our own CSRS
    employees.
        I submit to you, Ms. Kichak, unless you can supply some
    part of the record to justify your assertions, I do not believe
    that we can credit them here in this hearing.
        I am going to give the chairman back his chair.
        Mr. Davis [presiding]. Ms. Kichak, let me ask you,
    specifically related to law enforcement officers----
        Ms. Kichak. Yes.
        Mr. Davis [continuing]. How do you separate them in terms
    of some concerns expressed from the other groupings of
    employees?
        Ms. Kichak. First of all, in my testimony, when we reviewed
    the legislation as it is drafted, and it talks about crediting
    service, it does not cite the service for law enforcement
    officers. So that was a point of information I would like you
    to understand.
        But when we look at the activity of law enforcement
    officers, when we do our actuarial analysis and when we manage
    the trust funds, because they have different age and service
    requirements and, therefore, their retirement patterns are
    different--they can retire at ages that normal people can't--we
    look at the rates of retirement leaving the law enforcement
    service, etc., in our projections, and we look specifically at
    the law enforcement officer community.
        We didn't look specifically at the District, but we looked
    at, I believe about 80,000 law enforcement officers in Federal
    service; and that is how we determined the average experience
    that we used to fund the system.
        Mr. Davis. Wouldn't you say that the law enforcement
    officers in question relative to the District of Columbia, that
    they will find themselves at some disadvantage anyway, just by
    virtue of having been caught in the situation or the squeeze?
        Ms. Kichak. They would find themselves in the same
    situation as somebody who joined the law enforcement community
    from another State, from a State government or from the private
    sector at the age they entered the system. Those folks also
    would not have credit under the FERS system. They would be
    treated like somebody who entered the service from another
    entity that wasn't Federal.
        Mr. Davis. Can I ask you, even though you may not be in
    agreement with this particular legislation and all of the
    components of it, does OPM see any way that this group of
    employees can, as one might say, be made whole? Is there any
    way that they can end up at the end of their careers feeling
    that they somehow or another have not been cheated or
    disadvantaged?
        Ms. Kichak. Our concern in creating the precedent that was
    spoken about before is that there are other groups of folks who
    would be interested in being able to get credit for service
    that they served someplace else.
        In fact, under the FERS legislation, one group that gets no
    credit for Federal service are those people who worked for the
    Federal Government, took their contributions out, and that
    doesn't count for them. So they don't have a provision today
    where they can buy back credit for that service. And I see
    those as similar, that if we start allowing people to get
    credit for time that they didn't contribute under FERS, then
    there are going to be challenges to funding the system.
        The system was carefully designed to try to make it fully
    funded. And there are other people out there with the same
    concerns.
        Mr. Davis. So it is sort of the Pandora's box syndrome----
        Ms. Kichak. Yes.
        Mr. Davis [continuing]. In a sense? And I have always been
    amazed about how Pandora was looked at. And I have always said
    to myself that if you are just afraid of opening up a box that
    ought to be opened, then why not open it if the situation is
    required, if there should be some redress?
        I hear that a lot in terms of Pandora's box, and you know,
    if one group gets it, then somebody else wants to be
    considered. It would just seem to me that as long as there is
    any form of inequity, or as long as there is some denial of
    justice and as long as there is some denial of due process or
    corrective action, then all of the Pandoras in the world will
    end up perhaps dying with some feeling that somehow or another
    they were short-changed because they happened to fall into a
    box.
        And I understand the concept. It is not one that I agree
    with, but I certainly understand it and certainly hear it used
    a great deal that we are going to open up a can of worms. Well,
    if the can needs to be opened, then the worm has as much of a
    right as, you know, anything, anybody else. That is just my
    position, especially when I ask myself the question about
    fairness.
        I often ask, is it fair for birds to eat worms? The reality
    is, if you asked the bird, you get one answer. Now, you turn
    around and ask the worm and you get another answer. And I am
    sure that the people here don't want to be viewed as worms. But
    it seems that they are in that position.
        So let me thank you very much.
        Mr. Marchant, do you have any other questions?
        Mr. Marchant. Just one question. The bill can be
    implemented as drawn correctly, but with an appropriation
    attached to it?
        Ms. Kichak. An appropriation would solve the funding
    problem. If the bill is implemented as drawn, our
    interpretation of this language would not credit the service
    under these entities in the District of Columbia with credit
    toward law enforcement officer service.
        Mr. Marchant. So in order for what Ranking Member Davis,
    Delegate Norton, and the chairman want to do to accomplish----
        Ms. Kichak. Right.
        Mr. Marchant [continuing]. The bill needs to be redrafted
    to be specific, in your opinion, to specifically cover these
    things?
        Ms. Kichak. If that is what they want. And we would be glad
    to provide technical assistance to show them where we think----
        Mr. Marchant. And an appropriation attached to implement
    it.
        Ms. Kichak. We would recommend that should be done. There
    should be an appropriation.
        Mr. Marchant. And that is your position?
        Ms. Kichak. Yes.
        Mr. Marchant. OK. Thank you.
        Mr. Davis. Thank you very much, Ms. Kichak. We appreciate
    your being here.
        Ms. Kichak. Thank you.
        Mr. Davis. And as always, we thank you for your testimony.
        Ms. Kichak. Thank you.
        Ms. Norton. Mr. Chairman, could I have a followup question?
        Mr. Davis. One. Yes.
        Ms. Norton. She testified--I am sorry, was your last
    testimony about money Congress would have to add?
        Ms. Kichak. When an unfunded liability is created in the
    pensions----
        Ms. Norton. You have a huge unfunded liability in every
    pension system, I know.
        Ms. Kichak. We don't have one in the FERS system.
        In the CSRS system there was one, which was one of the
    reasons that Congress created the FERS system, to have a system
    that was fully funded.
        Ms. Norton. Well, of course this is a unique situation,
    because you are not starting at ground zero. You are bringing
    over people and putting them in the FERS system and leaving
    them without their time.
        Ms. Kichak. They retained their benefits that they had
    when----
        Ms. Norton. Obviously, that would be a violation of due
    process.
        Look, because with the law enforcement employees, given
    your testimony, you really have struck a third rail there. I
    appreciate your testimony about how we probably intended to
    include law enforcement authority and that the bill does not
    include law enforcement sufficiently. They, of course, still
    have an enhanced retirement.
        But is it your testimony that a law enforcement officer who
    would, I suppose, be entitled to retire in 20 years? And if
    that law enforcement officer hadn't made it, that law
    enforcement officer simply has to do what every other employee
    who switched over, simply continued to work until the 20-year
    in his case or her case time is met?
        Ms. Kichak. Yes. They would have to continue to work to get
    20.
        Ms. Norton. Don't you see how at odds that is with Federal
    policy? We don't grant 20-year payouts to people, or enhanced
    benefits to people, simply because we like our police officers.
    A policy decision has been made about the likely fitness of an
    officer after that period of time.
        You, administratively, now are requiring these officers,
    unless we fix the bill, to serve beyond the period of time that
    Congress has fixed for their service.
        Yes, it is a benefit. Yes, there is good reason for them
    to, in fact, want this benefit. But like every city that does
    it, this benefit is not just a benefit, you have to have a
    policy reason for doing so. In this case, the policy reason for
    doing so has to do with the same reasons that we don't draft
    people in the armed services beyond a certain age.
        I just want to say that for the record, Mr. Chairman,
    because I think that the testimony that law enforcement
    officers have to also serve this additional time affects not
    only the officers, but presumably the underlying mission that
    they happen to be serving.
        I would like to ask you about your notion that this is a
    precedent and that somehow we are opening up a concern about
    similarly situated employees. Can you cite for me any instance
    in the history of our country where we have had the Federal
    Government to take responsibility for a mission that was
    formally performed by a local jurisdiction?
        Ms. Kichak. I don't have an example, no.
        Ms. Norton. Well, I submit that it could not happen,
    because only the District of Columbia is subject to the Home
    Rule jurisdiction and is subject to the ultimate jurisdiction
    of the Federal Government. And if there was some kind of
    transfer of funds from--I don't know, the city of Baltimore--
    some kind of transfer of jurisdiction that would interfere with
    the Federalist rights of Baltimore itself--and I cite that
    because if you want to cite precedent, you have to tell us how
    a Federal employee could then look to this change from the one
    local jurisdiction that the Federal Government constitutionally
    has any jurisdiction over as a precedent for what the Federal
    employee would be demanding.
        Ms. Kichak. When I was speaking of precedent, I was
    speaking of getting credit for service that is not covered
    under the FERS system.
        Ms. Norton. That is exactly what I am speaking of since
    these people are not asking for money.
        Ms. Kichak. Well, I was talking about credit for those----
        Ms. Norton. I want to know whether you can cite a precedent
    for that, or in the absence of a precedent, cite me a
    hypothetical.
        I am a law professor. I will take a hypothetical of where
    you think a Federal employee might validly cite this for
    wanting the same or similar treatment.
        Ms. Kichak. I think people who have worked for the Federal
    Government and taken their money out and lost their coverage
    under FERS could say that if somebody that was transferred from
    the District of Columbia into Federal service----
        Ms. Norton. Who took no payout. Who took no payout. Who
    took no payout. These people are sitting on their money because
    the Federal Government won't let them go.
        I mean, if you want to cite me a precedent, you had better
    be careful. These people have not taken payouts. Some are gone,
    with less money. I wouldn't call that the same kind of payout
    that Federal employees have taken.
        I am sorry, Mr. Chairman, I just want to lay it on the
    record and ask this witness one question.
        I will accept your hypothetical and I will have to accept
    it as a hypothetical because you have not cited me to the
    record where the intent of Congress is noted. You cited me to
    one sentence in the statute, and I can understand that.
        But I would like to accept your notion for the moment and
    then ask you: Let's assume that you are right, that we either
    never intended it and that the record does not support my
    notion that we intended it, given what has occurred, so that
    there are employees now serving well beyond their retirement
    time; would you recommend to this committee that it take the
    appropriate action to correct this anomaly?
        Ms. Kichak. I am not making that recommendation.
        Ms. Norton. So I would rather have that answer than the
    answer that you would let this anomaly remain in place, fall
    where it may, and penalize hundreds of employees in the
    process.
        So I am going to let you go without asking you to put that
    answer on the record. And thank you for your testimony.
        Ms. Kichak. Thank you.
        Mr. Davis. Thank you very much, Ms. Kichak.
        We will proceed to our second panel. And while we are
    establishing their presence, I will go ahead and introduce
    them.
        Ms. Anne Wicks serves as the executive officer of the
    District of Columbia courts. Prior to her appointment, Ms.
    Wicks was the courts' acting chief financial officer from 1999
    to 2000; deputy executive officer for court operations, 1997 to
    1999; and deputy director for research and development, 1987 to
    1999.
        We also have Mr. Paul Quander, who is the first director of
    the Court Services and Offender Supervision Agency [CSOSA]. He
    has served in this capacity since 2002. CSOSA is responsible
    for supervising adults on probation, parole, and supervised
    release in the District of Columbia.
        We have, also, Ms. Avis Buchanan, who has served as the
    director of the District's Public Defender Service for the past
    3 years. She holds a Juris Doctorate degree, and has worked as
    a staff attorney for the Equal Employment Opportunity Project
    of the Washington Lawyers Committee for Civil Rights and Urban
    Affairs.
        Let me thank all three of you. And if you would stand and
    be sworn in and raise your right hands.
        [Witnesses sworn.]
        Mr. Davis. The record will show that the witnesses answered
    in the affirmative.
        We will then proceed with our testimony, if you would
    summarize your written statement in 5 minutes.
        The yellow light indicates that you are down to 1 minute;
    and if you would then wrap up for us, the red light will
    indicate that your time is up.
        And we will begin with you, Ms. Wicks.

      STATEMENTS OF ANNE B. WICKS, EXECUTIVE OFFICER, DISTRICT OF
        COLUMBIA COURTS, ACCOMPANIED BY KATHY HOLIDAY CRAWFORD,
       PROBATION OFFICER, SOCIAL SERVICES DIVISION, DISTRICT OF
     COLUMBIA FAMILY COURT; PAUL A. QUANDER, JR., DIRECTOR, COURT
      SERVICES AND OFFENDER SUPERVISION AGENCY OF THE DISTRICT OF
       COLUMBIA; AND AVIS E. BUCHANAN, DIRECTOR, PUBLIC DEFENDER
                  SERVICE FOR THE DISTRICT OF COLUMBIA

                       STATEMENT OF ANNE B. WICKS

        Ms. Wicks. Thank you.
        Mr. Chairman, Congresswoman Norton, members of the
    subcommittee, I am Anne Wicks, executive officer of the
    District of Columbia courts. As executive officer, I am
    responsible for the administration of the courts, and the
    management of our 1,000 nonjudicial employees.
        I am pleased to be here today to offer testimony on H.R.
    5600.
        Chief Judge Eric T. Washington of the D.C. Court of
    Appeals, and Chair of the court's policymaking body, the Joint
    Committee on Judicial Administration, has taken time from his
    schedule to be here, as well, in support of this legislation,
    which is of fundamental importance to the courts.
        Also here today is Kathy Holiday Crawford, a probation
    officer with our Family Court Social Services Division.
        As you are aware, law enforcement personnel are eligible to
    retire at age 50 with 20 years of service, and a mandatory
    retirement age of 57. Ms. Crawford has been a probation officer
    with the courts for 19 years. Because of the changes instituted
    with the 1997 D.C. Revitalization Act, Ms. Crawford will not be
    able to retire next year as she had anticipated, but must wait
    until 2017, at which time she will be beyond the mandatory
    retirement age, and will have served in a law enforcement
    position for over 28 years.
        More than 250 of the D.C. courts' employees lost up to 10
    years of government service, an unfair and unintended
    consequence of the Revitalization Act. These individuals
    comprise 26 percent of our work force. Discounting years of
    public service and work experience for such a huge segment of
    the courts' work force has had a significant negative impact on
    employee morale and employee-management relations.
        Management has a responsibility to protect employee rights,
    pay a living wage, and provide health and retirement benefits.
    Unfortunately, as a result of the Revitalization Act, many of
    the courts' employees believe management has let them down.
        H.R. 5600 would restore fairness to our retirement system
    and improve the morale of our work force. Employees of the
    courts who were hired prior to October 1, 1987 participated in
    the Civil Service Retirement System. Court employees hired
    between October 1 of 1987 and October 11, 1997 participated in
    the District of Columbia's retirement system. When the D.C.
    Revitalization Act was enacted, it provided that all court
    employees would be treated as Federal employees for the
    purposes of retirement. What the act did not provide was credit
    toward retirement for the years of service for those employees
    under the District's retirement system, that is, all employees
    hired by the D.C. courts between 1987 and 1997.
        Although these 250 employees had worked for the courts for
    up to 10 years, and have continued through today to remain
    dedicated court employees 11 years later, the Revitalization
    Act imposed on them an artificial change in their employment
    status, resulting in the loss of valuable time and credit
    toward retirement.
        Consider how this works. An employee hired in September
    1987 was under the Civil Service Retirement System, and today
    has nearly 21 years of service when computing retirement
    eligibility. An employee hired 1 month later, in October 1987,
    was under the District's retirement system, and today has only
    11 years of service toward retirement. The reality, of course,
    is that both employees have worked for the D.C. courts for
    nearly 21 years.
        The rationale for this decision, that the impacted
    employees participated in a different non-Federal retirement
    program, while logical, is neither practical nor fair. The fact
    is that up to 10 years of government work is being ignored when
    determining eligibility for retirement. The fact is that for
    these employees, their years of service with the courts and
    their years of service to the people of the District of
    Columbia are not being fully counted toward retirement.
        We are not asking for these employees to be paid additional
    money. They paid into a different retirement system and will be
    entitled to their funds in that system when they retire. What
    we are asking for is that all the years of D.C. court
    employment be counted when retirement eligibility is
    calculated.
        For an employee to have to work 6, 8, or 10 years more than
    their coworkers to be eligible to retire, solely by coincidence
    of when they are rehired, is patently unfair. To ignore years
    of an individual's work as a government employee in the justice
    system is particularly problematic for the courts. Imagine
    being responsible for ensuring justice and fairness, day in and
    day out, when you believe an injustice has been done to you.
    And imagine being responsible for managing these employees.
        The vision statement of the D.C. courts is Open to All,
    Trusted by All, Justice for All. Our employees work each day to
    make those words true for all who walk through the courthouse
    doors. You can make them true for our employees as they
    approach retirement.
        Thank you for your support on this important issue. Ms.
    Crawford and I would be happy to answer any questions you may
    have.
        Mr. Davis. Thank you very much, Ms. Wicks.
        [The prepared statement of Ms. Wicks follows:]
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        Mr. Davis. We will proceed to Mr. Quander.

                    STATEMENT OF PAUL A QUANDER, JR.

        Mr. Quander. Good afternoon, Chairman Davis and members of
    the subcommittee.
        H.R. 5600, the proposed District of Columbia Court,
    Offender Supervision, Parole, and Public Defender Employees
    Equity Act of 2008, would impact 106 employees of the Court
    Services and Offender Supervision Agency.
        In both the Community Supervision Program, which provides
    probation and post-trial release supervision, and the Pretrial
    Services Agency, which provides pretrial supervision, a
    substantial number of employees remained with the agency and
    converted to Federal status following passage of the D.C.
    Revitalization Act in 1997. These employees would be affected
    by the proposed legislation.
        In the Community Supervision Program, a total of 52
    employees, or 5.6 percent of Community Supervision's total work
    force, would be affected. The majority of these staff are
    directly involved with offender supervision and are classified
    as law enforcement employees. Twenty-three of them, or 44
    percent, are community supervision officers. An additional 12,
    or 28 percent, are supervisors, with one occupying a branch
    chief position. Five, or 10 percent, work in our Offender
    Processing Unit; the remaining 12 employees, 28 percent, hold a
    variety of support positions.
        In the Pretrial Services Agency, a total of 54 employees,
    or 15 percent of PSA's total work force, would be affected. As
    with the Community Supervision Program, the majority of these
    employees are directly involved with supervision; 29, or 54
    percent, are Pretrial Service Officers and, additionally, 11,
    or 20 percent, are supervisors.
        Four employees, or 7 percent, work in the Forensic
    Toxicology Laboratory. The remaining 10 employees, or 19
    percent, hold various program management or support positions.
        Thank you for the opportunity to appear before this
    subcommittee, and I will be happy to answer any additional
    questions that you or members of the committee may have. Thank
    you.
        Mr. Davis. Thank you very much, Mr. Quander.
        [The prepared statement of Mr. Quander follows:]
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        Mr. Davis. And we will go now to Ms. Buchanan.

                     STATEMENT OF AVIS E. BUCHANAN

        Ms. Buchanan. Good afternoon, Chairman Davis, Congressman
    Marchant and Congresswoman Norton. I am Avis Buchanan, Director
    of the Public Defender Service for the District of Columbia for
    the last 4 years. Thank you for this invitation to testify
    before the subcommittee today in support of H.R. 5600.
        The Public Defender Service for the District of Columbia is
    a federally funded, independent organization governed by a 11-
    member board of trustees. PDS is a federally funded entity as
    the result of the passage of the Balanced Budget Act of 1997
    which, among other things, transferred fiscal responsibility
    for the District of Columbia's court functions to the Federal
    Government.
        As part of that transfer, the employees of the Public
    Defender Service and other District of Columbia employees
    affiliated with the city's justice system became Federal
    employees solely for the purpose of the applicability of
    several employee benefits provisions in Title 5 of the United
    States Code. One of these benefits, participation in the
    Federal Retirement System, is the subject of H.R. 5600.
        PDS supports H.R. 5600, as it will eliminate an inequity
    for certain current and former PDS employees and certain
    District of Columbia court employees related to their
    retirement eligibility. My comments focus on former and current
    PDS employees; however, the courts' employees' circumstances
    are analogous.
        PDS employees participated in the Civil Service Retirement
    System until October 1, 1987, when the District of Columbia
    reorganized its personnel functions and practices. In addition,
    the Federal Employees Retirement System [FERS], was created
    that same year. From October 1, 1987, on, newly hired PDS
    employees were deemed ineligible to enroll in CSRS or FERS.
    After the District created the District of Columbia Defined
    Contribution Plan, PDS employees were permitted to participate
    in that program.
        In 1999, the Balanced Budget Act and the technical
    corrections thereto ended PDS employees' participation in the
    District's plan and made FERS available to all PDS employees.
    Currently, these PDS employees do not receive credit toward
    their Federal retirement for any time they worked at PDS
    between 1987 and 1999.
        H.R. 5600 permits PDS employees to count their qualifying
    years of service to determine eligibility for participation in
    FERS. These 24 current employees have waited several years for
    this inequity to be addressed. For some, this legislation could
    make the difference between retiring now and retiring as much
    as 12 years from now.
        For one who died 3 years ago, 4 months short of his
    retirement eligibility, it has made the difference between an
    annuity for his surviving wife and no annuity at all.
        PDS suggests that two technical corrections be made to the
    draft legislation. One correction will allow for consistent
    treatment for similarly situated PDS employees. The other will
    add clarity to Congress's intent to provide this retirement
    benefit to those employees.
        First, current and former PDS employees who are enrolled in
    a third retirement plan, the Offset Civil Service Retirement
    System, should be included in the group of employees
    contemplated by H.R. 5600. As noted, the legislation will allow
    current and former PDS employees to receive credit under FERS
    for service they performed prior to being covered by the
    Federal retirement provisions. H.R. 5600 does not, however,
    provide credit toward retirement for the same type of service
    by PDS employees who, because they had sufficient prior service
    under the Civil Service Retirement System, were placed under
    the Civil Service Retirement Offset retirement program rather
    than the FERS program. These employees should also receive
    credit for their qualifying service.
        Second, current and former PDS employees should be
    explicitly referenced in section 2(a) of the legislation,
    because section 2(a) describes the legislation's intended
    beneficiaries. An express reference will make clear that
    current and former PDS employees are contemplated by this
    provision. Evidence that the legislation is intended to include
    current and former PDS employees is found in its title and in
    its prefatory language, but section 2(a), which describes the
    targeted employees, does not mention PDS employees.
        In order to understand that current and former PDS
    employees are included in section 2(a), one must refer to three
    other statutory provisions: one within PDS's authorizing
    statute, D.C. Code, section 2-1605, subsection (c)(1), which
    makes PDS employees Federal employees for certain enumerated
    purposes, including Federal retirement; 5 U.S.C., section 8401,
    defining ``employee'' under FERS; and assuming PDS's above-
    requested amendment is made, 5 U.S.C., section 8331, defining
    ``employee'' under CSRS.
        Neither of the two latter provisions specifically lists
    PDS. Naming PDS employees in section 2(a) will eliminate the
    need for reference beyond the four corners of this legislation.
        With the above-described changes, this subcommittee will
    help PDS succeed in accomplishing the long-sought-after goal of
    obtaining for PDS employees appropriate credit toward their
    Federal retirement.
        I appreciate the opportunity to present this testimony to
    the subcommittee. Thank you.
        [The prepared statement of Ms. Buchanan follows:]
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        Mr. Davis. Thank you all very much. We certainly appreciate
    your testimony. Let me quickly begin with a question.
        Ms. Wicks, your testimony highlights some of the challenges
    and consequences of being denied their total service years by
    employees who work under your supervision. What does this do
    for their morale, if you can make any assessment?
        Ms. Wicks. Well, I would assume that it would improve
    employee morale. It has been a concern since 1997, when the act
    was passed, that the employees felt that they were sold out
    somehow and they were cheated somehow. This would go a long way
    in restoring their faith in management and their faith in the
    retirement system. So I think it would improve morale.
        Mr. Davis. If H.R. 5600 was enacted, a number of your
    employees would become eligible for retirement. What do you
    think would actually happen?
        Ms. Wicks. I am not certain as to the number who would be
    eligible, but the reality is that besides this negative aspect,
    let's say, of their employment, our employees typically are
    fairly satisfied with their jobs, and tend to have long careers
    with the courts. So I don't believe that it would cause a rush
    to retirement in any way.
        Mr. Davis. Well, let me just ask this last question before
    I have to run off to vote--and Mr. Marchant, I am sure, will be
    running off to vote. But I understand that Kathy Holiday
    Crawford and other employees in her situation have expressed
    strong support for H.R. 5600.
        If it was passed, or an amended version passed, would you
    expect many of these employees to retire immediately, or would
    many of these employees continue to provide services with
    reassurance that they are eligible for retirement? Since this
    applies directly to Ms. Crawford and other individuals in her
    situation, perhaps she would like to respond to that question.

                  STATEMENT OF KATHY HOLIDAY CRAWFORD

        Ms. Crawford. Thank you, Mr. Chairman. Thank you all for
    allowing me to speak today. First, I would like to say, if we
    are given back our years, I don't see that there will be a
    drastic departure to depart from the court. As I put in my
    statement, we enjoy the work that we do, but we would like to
    get the years back that we lost basically on the date that we
    were hired.
        Mr. Davis. So you feel that you have actually given up
    something unnecessarily, through no fault of your own; and you
    would like very much to have it restored. Is that correct?
        Ms. Crawford. Yes, sir. I feel that something was taken
    from me. I did not lose years by choice. I lost my years by
    force.
        Mr. Davis. Well, thank you very much. I am going to run
    vote.
        Ms. Norton, perhaps you would just continue, and I will be
    back as soon as I finish voting.
        Ms. Norton [presiding]. For those of you from the District
    of Columbia, you can either regard this as a benefit or--a
    penalty that I am still here, because I shouldn't be, and I do
    not expect to be after the Senate gives us the vote we expect
    this very year. I simply want to get beyond some of the
    nomenclature that is generally used to describe the workers we
    are talking about.
        Mr. Quander, you testified that the majority of the staff,
    I am looking at your testimony, involved with offender
    supervision are classified as law enforcement employees. Could
    you elaborate on that statement?
        Mr. Quander. Yes. Many of the individuals that we
    identified are members of law enforcement. They have direct
    contact with offenders, individuals who have been a part of the
    criminal justice system who have been adjudicated, who have
    been convicted and----
        Ms. Norton. Are they peace officers?
        Mr. Quander. They are akin to probation officers in the
    Federal Service. We have the authority to be armed; we are not,
    but we do have that authority. Technically, they are not peace
    officers, but they are law enforcement officers. They are in
    the homes. They are riding with the Metropolitan Police
    Department. They are doing law enforcement work at the highest
    level. They are putting their lives on the line every day----
        Ms. Norton. So they are doing the work of peace officers
    without the peace weapon?
        Mr. Quander. Yes.
        Ms. Norton. Continue.
        Mr. Quander [continuing]. With their skills.
        And many people in the probation and parole area do this.
    They rely upon the skill set as opposed to weapons. They use
    the training that they have to talk to individuals. But it
    doesn't diminish the fact that they are dealing with
    individuals who, on occasion, may be unpredictable. So, safety
    is always in the back of every member's mind, their safety and
    the safety of others. It never leaves them.
        So they are true law enforcement professionals.
        Ms. Norton. Are some of these former police officers.
        Mr. Quander. Yes, they are.
        Ms. Norton. So their value to CSOSA has precisely been
    their law enforcement training then?
        Mr. Quander. It complements what we want to do. A number of
    them have training in the military, as military police, as well
    as some members of the Metropolitan Police Department and other
    law enforcement organizations that are currently working with
    us at CSOSA.
        Ms. Norton. And their title is Community Supervision
    Officer?
        Mr. Quander. Community Supervision Officers for CSOSA
    proper and Pretrial Services Officers for the pretrial
    component because they do many of the same functions as far as
    interaction with individuals who are pending, proper.
        Ms. Norton. Are those people with PDS?
        Mr. Quander. No. They're with the Pretrial Services Agency
    [PSA].
        We have so many initials floating around. But that's PSA,
    Pretrial Services, which is part of the umbrella.
        Ms. Norton. So they are also classified as law enforcement
    officers?
        Mr. Quander. Yes.
        Ms. Norton. Are you continuing to, in filling these
    positions, try to find people who may have retired, for
    example, from law enforcement, from police work, former police
    work?
        Mr. Quander. If they have the other qualifications, yes,
    because they have experience with the population that we are
    dealing with, they have an educational background.
        Ms. Norton. So you might want a young person if they had
    some law enforcement background and they applied for a job;
    that might be a desirable employee for a Community Supervision
    Officer?
        Mr. Quander. Yes.
        Ms. Norton. Now, of course, they would be foolish to come
    in with the law as it is because they are treated differently
    from others with law enforcement training, isn't that true,
    with respect to their retirement benefits if they come into--or
    would they, in fact, go into FERS knowing full well that they
    were getting FERS?
        Mr. Quander. They go into FERS knowing, but they will still
    be entitled to the same.
        Ms. Norton. But FERS is different for law enforcement
    officers?
        Mr. Quander. No. I'm not the personnel expert, but it is my
    understanding that for a new employee coming into law
    enforcement for CSOSA, they will still be eligible for
    retirement with 20 years of service and age 50, with a
    mandatory retirement age of 57. So coming into that, they still
    have that. It is that group that came in after 1987 that is not
    covered.
        Ms. Norton. That's the cutoff point?
        Mr. Quander. That's that area.
        Ms. Norton. You said that--you say in your testimony that
    28 percent are supervisors. Would these supervisors also be law
    enforcement officers who have risen through the ranks?
        Mr. Quander. Yes. Supervisors have law enforcement status.
    They go out and do accountability tours just as the CSOs do.
    They meet frequently with offenders, oftentimes the offenders
    who have problems, who are hostile.
        The supervisors have a lot of experience, so they're on the
    front lines just as often; and it is a requirement that they
    actually go out and actually do home visits and do
    accountability tours and do other things with the staff. It is
    not just the staff that are out there; supervisors, as well.
        Ms. Norton. Just like police who go into people's homes
    except they don't have a gun. Forty-four percent are Community
    Supervision Officers, 28 percent are supervisors, so we have to
    add them, do we not, to the law enforcement number; is that not
    true?
        Mr. Quander. Yes.
        Ms. Norton. And one is a branch chief. Don't we have to add
    him or her----
        Mr. Quander. Her, yes.
        Ms. Norton [continuing]. To the number who are law
    enforcement officers and thus affected?
        And finally 10 percent work in the Offender Processing
    Unit. Are they also law enforcement, classified as law
    enforcement officers?
        Mr. Quander. Many of those individuals are also classified
    as law enforcement personnel because they're dealing with the
    offender population. At intake, they're getting a lot of
    information; they have a lot of contact with the offender
    population. So I would suggest that the vast majority of that
    10 percent are, in fact, law enforcement.
        Ms. Norton. So essentially what we're dealing with is a
    work force who, when it was with the District of Columbia, was
    hired for their law enforcement background, was trained with
    that background, take those risks--and you have testified, even
    more because they're not armed--but have been transferred over
    and are not treated precisely the same as they would have been
    treated had they remained with the District of Columbia?
        Mr. Quander. Yes.
        Ms. Norton. Your testimony says, of the Pretrial Services
    Agency that you referred to earlier, 54 percent are Pretrial
    Services Officers. Let me ask you for the record, are these
    officers law enforcement or would they be classified as law
    enforcement officers?
        Mr. Quander. Yes, they are.
        Ms. Norton. And what is their work specifically?
        Mr. Quander. They perform a similar function, but the
    population that they serve are pretrial defendants--they have
    not been convicted of any criminal offenses, but they have been
    charged, and they have been placed under the supervision of the
    Pretrial Services Agency.
        And they're employed by the Superior Court of the District
    of Columbia to provide supervision, to provide drug testing, to
    provide substance abuse treatment, to have regular contact with
    many of these individuals, to provide special programming for
    them, to ensure their return to court and their compliance with
    the conditions of release that have been imposed by a judge of
    the Superior Court.
        Ms. Norton. Do they work in the court?
        Mr. Quander. Many of them do. Many of them are actually in
    the courtroom giving recommendations to the court on release
    conditions and background information. So many of them are in
    the court, and they have regular contact with the offender
    population that they serve.
        Ms. Norton. I've asked you to lay that out, Mr. Quander,
    because these titles, I think, hide the reason that these
    employees were, in fact, hired for those particular missions at
    the time they were hired. And it is important for Congress to
    be aware that these are law enforcement officers, because of
    the deference Congress always, always pays to the special
    circumstance of law enforcement officers--and if I may say so,
    I think particularly for officers who are unarmed and do work
    which exposes them to danger.
        Ms. Wicks, you testified that the bill making the changes
    we propose--and we now know with some additional ones--would,
    if I can paraphrase you, restore faith in management and in the
    retirement system. I wish you to elaborate on that and tell me
    what effect you think it has had on court employees to have
    spent--how many years is it now since we passed this bill?
        Ms. Wicks. Eleven years.
        Ms. Norton. Eleven years. What effect you think it has had
    on employees who have had to stay longer than they indicate
    they intended?
        Ms. Wicks. From my perspective, it has obviously just had a
    really demoralizing effect on employees. And while they're
    there every day doing their jobs, it is a constant point of
    dissatisfaction. And I think, just as I look at the room and
    see most of the audience behind me are court employees, it is
    clearly an issue of tremendous importance to them. It just
    makes it incredibly difficult, as well, to motivate people and
    talk about justice and talk about fairness and talk about
    treating the public with respect when they don't feel it comes
    their way. So I think it's been an underlying, continuous issue
    for them--maybe not one that they bring to the top of mind
    every day, but it's a sore subject.
        Ms. Norton. Well, you had to live with it and to live in
    anticipation of it is, of course, just as bad.
        I had a question about the PDS employees, but the staff has
    given me some background that seems to me we have to look more
    closely into.
        Let me ask all of you about those who have retired. What's
    going to happen or what has happened to those who have retired?
    Some people have retired anyway, haven't they?
        Ms. Wicks. I assume, at least for the courts I assume they
    have. But I've truly not seen as many folks retire who were
    hired during that period of time, those lost years period from
    1987 to 1997, as I have some of our longer-term employees, who
    were here prior to that time and were Civil Service.
        Ms. Norton. So you think the ones who were caught in that--
    --
        Ms. Wicks. I don't think they're retiring. They would leave
    our service before they would retire from it has been my
    experience.
        Ms. Norton. So you think they could be recruited to go
    elsewhere?
        Ms. Wicks. Oh, absolutely. Absolutely.
        Ms. Norton. The chairman wanted to ask you, Ms. Buchanan,
    if you would provide the number--Mr. Quander has provided for
    us a breakdown of the employees who are affected--if you would
    provide us with the number of employees participating in the
    CSRS that would be affected by the changes now contained in
    H.R. 5600?
        Ms. Buchanan. The number of employees is 24. It's cited in
    a footnote in our testimony, our written submission, footnote
    5. And that's 24 current employees. We do not know how many
    former employees might be affected because we do not know what
    their subsequent employment histories have been since they left
    PDS.
        Ms. Norton. So all we can imagine is that at--your
    testimony, Ms. Wicks, is that there haven't been a lot of
    people who have taken the sacrifice of retiring without their
    benefits. Have they believed that Congress would, in fact,
    correct this matter and are they waiting in the hope that is
    exactly what is going to happen?
        Ms. Wicks. Maybe Kathy can answer that better than I.
        Ms. Norton. I would be pleased to have any testimony from
    any of you who have any idea about that.
        Ms. Crawford. Actually, we have not been able to retire
    because, as it stands, we only have 11 years toward retirement.
    So financially, we cannot retire.
        And actually this is an issue that we have been trying to
    get addressed over the years; and again I can only say, we
    thank you because we have at least gotten this far.
        Now, if we get our years back, then of course it will be to
    each individual employee to go and sit with their family and
    decide what they should do, whether they will retire or stay.
    But right now we are not eligible to retire because it's as if
    we have been employed only since 1997. So everybody who was at
    Court Social Services, which a lot of us are, in the hazardous-
    duty realm, we are not eligible to retire. We won't be eligible
    to retire until 2017.
        Ms. Norton. Are you saying that 2017 would be the earliest
    date any employee could retire?
        Ms. Crawford. Yes, that's the earliest date that we can
    retire.
        Ms. Norton. Because if you count the oldest age that is
    caught in this time warp, the oldest age would be held until
    what year?
        Ms. Crawford. 2017, because we would need 20 years of
    service under the first system, and our first retirement goes
    back to 1997.
        Ms. Norton. Do you have any idea what the age of some of
    these employees who will be held 20 years is?
        Ms. Crawford. Yes, ma'am, I do.
        Ms. Norton. Don't scream out a number, people. You don't
    need to incriminate yourselves. I'm just trying to get some
    sense.
        Ms. Crawford. We currently have employees in the hazardous
    duty of Court Social Services who are in their 60's, in their
    late 50's; and they have to work the additional years before
    they can retire.
        Ms. Norton. These employees are now in the Federal
    Employees Health System, aren't they?
        Ms. Crawford. Yes.
        Ms. Norton. You know, if the OPM was serious, it would
    compare the costs incurred by that system, as well, since all
    of the data we have is that the older you get, the more likely
    you are to need real service in the FERS system, and those of
    us who are spring chickens just don't use it very much.
        I don't know if anyone has any data on--and Ms. Wicks may
    because she, of course, would perhaps have observed whether
    people take sick leave, whether people have or report
    disabilities of various kinds as they age, and the rest that
    might comprise such an answer. I realize you may not have
    done----
        Ms. Wicks. I couldn't say that I have hard data. I could
    say anecdotally, the court has certainly, as our work force
    agent--and I am sure everybody sees the same thing. We
    certainly see a lot more instances of disability and we see a
    lot more instances of family medical leave being used for
    health issues. So certainly, to your point, health care costs
    increase the older your work force gets.
        The other thing we were discussing is the fact, as well,
    that the OPM argument, if people have to work longer then their
    income gets higher, so their retirement benefits are more
    costly to OPM.
        It depends on what assumptions you're looking at to
    determine what the costs would be over time. But certainly one
    assumption could be that workers who work longer make more
    money, and they will cost more in retirement because the
    retirement benefits are higher, so it seems to us that it could
    really cut both ways.
        Ms. Norton. Certainly, if you were serious about making a
    cost argument, you're going to have to look at those and you're
    going to have to look at health care costs.
        Ms. Wicks. Exactly.
        Ms. Norton. And you have to look at all of those in light
    of what amounted to a promise to leave people whole, which, of
    course, is a sacred promise.
        The reason that we're able to float bonds, given the
    terrible indebtedness of the United States of America, and get
    people to buy them is because our word has been our bond. And
    employees, of course, have regarded that equally to be the
    case.
        I want to just say for the record, I have very much been at
    one with our majority in living by PAYGO. And I note for the
    record that the Senate sure hasn't found it should live by
    PAYGO. Now, PAYGO is, of course, the system we adopted when
    President Clinton was in power, and essentially we do not have
    an effect on appropriation, which I hasten to add.
        I don't see the argument for applying PAYGO to a retirement
    system. I mean, that entirely escapes me. So if you want to
    really pile on with these employees, then bring PAYGO to a
    retirement system, since we don't count PAYGO in the retirement
    system. And I would add to that, and the House is to be
    congratulated to try to press down the deficit. I would add to
    that I don't think any Member of Congress would want us to
    break a promise to Federal employees at the expense of PAYGO,
    and that should be the basis for an exemption.
        Now, we've just had experience in this very subcommittee
    that I think proves that Congress will not break a promise to
    Federal employees. And that's who we're talking about. And I
    cite our experience with the GAO.
        The GAO sought to withhold COLAs from GAO employees based
    on their version of pay, the--I don't want to call it
    ``reform''--the pay-for-performance system. They were, of
    course, essentially guinea pigs for that system. But they
    weren't the only ones who were doing pay-for-performance; the
    DOD, a much larger work force for sure, was doing pay-for-
    performance. Homeland Security, or parts of it, was probably
    doing pay-for-performance.
        Appropriation time came around--and this I want
    specifically to be noted for the record: It could not be
    avoided that Congress made the DOD employees whole when DOD
    deprived those employees of their COLA under the statute. But
    the small number of GAO employees were never made whole, and so
    these employees who suffered under the pay-for-performance
    system were unique in the Federal system, and there were COLAs
    owed them.
        Now, we not only have made them whole; we have made them
    back-pay whole. That's what the promise of the United States of
    America is all about. We did not allow these Federal employees
    to be singled out even for a new system that we ourselves had
    authorized.
        Now, I have indicated I have heard nothing from the record
    to say we authorized this difference. I'm still a law
    professor; I teach at Georgetown, and I respect the notion of
    textualism, because I teach textualism and what we call
    contextualism. That is to say, there are very few statutes
    which the courts--even the strictest of those who look to
    congressional intent are able to use only the bare words of the
    statute. And so, more often than not, we're forced to use
    contextualism in order to see, well, what really did Congress
    intend?
        The OPM representative cited for me one sentence to support
    the notion that unequal treatment of Federal employees is
    justified, and worse, was intended by the Congress of the
    United States. She threw it back in our face.
        When I asked her, all right, let's assume your
    hypothetical, given the unequal treatment that has resulted,
    would you recommend that we change it? And all she could say
    was--I had better bear in mind that I'm testifying for the
    administration--and so all she would say was that she was not
    making that recommendation.
        She did not say she should not make the recommendation. She
    did not even say that there was no unequal treatment, because
    it's impossible to avoid the fact that there is unequal
    treatment.
        And so I just want to say to you--I think these are the
    last witnesses; aren't they the last witnesses we have? I just
    want to say to you that I am going to find--we don't ask for
    exemptions from PAYGO. I haven't heard that PAYGO would apply
    here. All that I have heard is that it adds to the FERS system.
        I do not believe that we would need to make a specific
    appropriation in order to make these employees whole. So I'm
    going to argue, first, that I don't believe a specific
    appropriation is necessary. And second, I'm going argue that
    even if it did, this would be the first time I know of where
    the promise of the United States has been violated knowingly by
    the United States and not fixed.
        I thank all of you for your testimony. Those who can vote
    are now continuing to vote. And the Chair has given me
    permission to thank you for him as well and to tell you that
    this committee will proceed to try to do our very best to
    correct this wrong.
        Thank you for your testimony.
        [Whereupon, at 4:45 p.m., the subcommittee was adjourned.]
        [Additional information submitted for the hearing recorde
    follows:]
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