[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
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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:]
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    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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    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:]
[GRAPHIC] [TIFF OMITTED] 48589.045

[GRAPHIC] [TIFF OMITTED] 48589.046

[GRAPHIC] [TIFF OMITTED] 48589.047

                                 
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