House Report 115-435 - SECRET SERVICE RECRUITMENT AND RETENTION ACT OF 2017

[House Report 115-435]
[From the U.S. Government Publishing Office]

115th Congress } { Rept. 115-435
HOUSE OF REPRESENTATIVES
1st Session } { Part 1

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SECRET SERVICE RECRUITMENT AND RETENTION ACT OF 2017

_______

December 4, 2017.--Ordered to be printed

_______

Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following

R E P O R T

[To accompany H.R. 3731]

[Including cost estimate of the Congressional Budget Office]

The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 3731) to provide overtime pay for
employees of the United States Secret Service, and for other
purposes, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.

CONTENTS

Page
Committee Statement and Views.................................... 1
Section-by-Section............................................... 4
Explanation of Amendments........................................ 5
Committee Consideration.......................................... 5
Roll Call Votes.................................................. 5
Application of Law to the Legislative Branch..................... 5
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 5
Statement of General Performance Goals and Objectives............ 5
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Federal Advisory Committee Act................................... 6
Unfunded Mandates Statement...................................... 6
Earmark Identification........................................... 6
Committee Estimate............................................... 6
Budget Authority and Congressional Budget Office Cost Estimate... 6
Changes in Existing Law Made by the Bill, as Reported............ 9

Committee Statement and Views

PURPOSE AND SUMMARY

H.R. 3731, the Secret Service Recruitment and Retention Act
of 2017, extends until the end of calendar year 2018 the U.S.
Secret Service-specific waiver of the pay cap for basic and
premium overtime pay. Congress authorized this waiver in the
Overtime Pay for Protective Services Act of 2016. Lifting the
pay cap allows Secret Service personnel to be partially
compensated for overtime hours that result in owed compensation
above the cap. The additional premium overtime pay will not be
creditable for retirement annuity or annual leave calculations.
In addition, the bill mandates a series of reports and
information to Congress to assess future changes that might
reduce the agency's reliance on premium overtime pay.

BACKGROUND AND NEED FOR LEGISLATION

The United States Secret Service is a federal law
enforcement agency whose chief responsibility is the protection
of the President of the United States, the Vice President of
the United States, immediate families of the occupants of both
positions, and select other individuals and events of national
significance.\1\ The Secret Service also has a role in
investigating certain cybercrimes and currency
counterfeiting.\2\ The agency has three main personnel types:
special agents; uniformed division officers; and
administrative, professional, and technical staff.\3\
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\1\18 U.S.C. Sec. 3056.
\2\Reporting Computer, Internet-Related, or Intellectual Property
Crime, Dep't of Justice, https://www.justice.gov/criminal-ccips/
reporting-computer-internet-related-or-intellectual-property-crime
(last accessed Sept. 22, 2017).
\3\Join, U.S. Secret Service, https://www.secretservice.gov/join/
careers/ (last accessed Sept. 22, 2017).
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There is no margin for failure with respect to the Secret
Service's protective mission. Unfortunately, a December 2015
Committee investigative report found the Secret Service ``is
experiencing a staffing crisis that threatens to jeopardize
[that] critical mission.''\4\ When the report was released, the
Secret Service had fewer employees (6,306) than at any point
over the previous decade.\5\ Since then, the agency has moved
to increase staffing levels, reaching its goal of 6,800
personnel for FY2017.\6\ Even with these modest gains, Secret
Service personnel have been required to work excessive overtime
to fully staff the agency's protective mission. In addition,
due to the size of the President's family, the Secret Service
is responsible for 11 more permanent protectees than during the
previous Administration.\7\ Together, the agency's staffing
shortages and increased protective responsibilities have caused
Secret Service personnel to reach the statutory pay cap before
the end of the year, meaning some overtime is not compensated.
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\4\H. Comm. on Oversight & Gov't Reform, United States Secret
Service: an Agency in Crisis 18 (Dec. 9, 2015) [hereinafter ``Committee
Report''].
\5\Id. at 117.
\6\Briefing by Susan Yarwood, Chief Human Capital Officer, U.S.
Secret Service, to staff, H. Comm. on Oversight & Gov't Reform (Sept.
15, 2017) [hereinafter ``Secret Service Briefing''].
\7\Leg. Proposal from U.S. Secret Service to Congress, USSS and DHS
Aggregate Pay Cap Legislative Proposal (n.d.), at 7 [hereinafter
``Secret Service Leg. Proposal''].
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Total aggregate compensation for a pay period, which
includes basic and premium overtime pay, for Secret Service
personnel on the General Schedule is capped at the biweekly pay
equivalent of an annual salary of $161,900.\8\ As a result,
during any pay period Secret Service personnel can only be
compensated for the overtime hours they work until they reach
the biweekly pay cap. This overtime cap, commonly referred to
as a ``max out'' within the Secret Service, has consistently
been reported to the Committee as a top issue affecting
employee morale and retention.\9\
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\8\5 U.S.C. Sec. 5547.
\9\Secret Service Briefing, supra note 6.
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H.R. 3731 extends the pay cap waiver Congress granted to
the Secret Service in 2016 as part of the Overtime Pay for
Protective Services Act. That bill raised the cap for all
protective work conducted during the 2016 presidential election
cycle. For the aforementioned reasons, the Secret Service needs
an extended waiver. H.R. 3731 extends the waiver to the end of
calendar year 2018 for work on the agency's protective mission.
As in the previous Act, H.R. 3731 subjects Secret Service
personnel to a new aggregate pay cap of Level II of the
Executive Schedule, or $187,000 in 2017. Approximately 1,300
Secret Service personnel will benefit from the legislation in
2017--with approximately 144 still having some unpaid overtime
if the legislation is enacted.\10\ However, the bill will
provide at least partial relief to all Secret Service personnel
with overtime for which they were not compensated.
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\10\Secret Service Leg. Proposal, supra note 7, at 5.
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As the Committee has made clear, the Secret Service cannot
continue to rely on expensive premium overtime pay to meet its
mission. The agency needs to improve both hiring and retention
at the agency so it has an appropriate number of personnel. The
Secret Service has made improvements on this front, having
decreased its agency-wide attrition by 1.37 percent over the
past year.\11\ The time-to-hire also decreased from an average
of 406 days to 117 days.\12\ Work remains, however, and the
legislation directs the Secret Service to issue a report to
Congress on further recruitment and retention initiatives at
the agency. It also requires the Secret Service to submit the
questions used during polygraph examinations for agency job
applicants to Congress so Congress can understand the extent to
which the questions might be affecting the agency's effort to
recruit and hire new talent.
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\11\Secret Service Briefing, supra note 6.
\12\Id.
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In addition, the bill will require the Secret Service
provide Congress information on the scope of its mission. The
Committee's investigative report in 2015 found the Secret
Service's mission has dramatically expanded, and the agency and
Congress need to assess the effect of the agency's
investigative mission on the protective mission in a time of
low staffing levels.\13\ The scope of the protective mission
should also be assessed. The bill directs the Secret Service to
submit updated threat assessments, with some exceptions, to
Congress so that it can evaluate if statutory changes are
needed to revise who must be protected by the agency. For
similar reasons, the bill also directs the Secret Service to
notify Congress and provide an updated threat assessment if a
protective detail is extended.
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\13\Committee Report, supra note 4, at 178.
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Ultimately, H.R. 3731 remedies an immediate problem and
does so in a timely manner, as a stop-gap measure. It is
incumbent upon the agency to continue making progress with the
recruitment and retention of personnel and on Congress to
remain engaged with finding a solution to the agency's scope of
mission problem. Finally, the bill is tailored for the unique
circumstances the agency faces regarding staffing its
protective mission, and the Committee will not regard it as
precedent for waiving pay caps for any other agency.

LEGISLATIVE HISTORY

On September 11, 2017, Representative John Katko (R-NY)
introduced H.R. 3731, the Secret Service Recruitment and
Retention Act of 2017, with Chairman Trey Gowdy (R-SC); Ranking
Member Elijah Cummings (D-MD); Chairman Michael McCaul (R-TX)
and Ranking Member Bennie Thompson (D-MS) of the Committee on
Homeland Security; Representatives Daniel Donovan (R-NY),
Sheila Jackson Lee (D-TX), John Ratcliffe (R-TX), and Bonnie
Watson Coleman (D-NJ); and Delegate Eleanor Holmes Norton (D-
DC). H.R. 3731 was referred to the House Committee on the
Judiciary and in addition the House Committee on Oversight and
Government Reform. The Committee on Oversight and Government
Reform considered H.R. 3731 at a business meeting on September
13, 2017, and ordered the bill reported favorably, without
amendment, by voice vote.
In the 114th Congress, Representative Jason Chaffetz (R-UT)
introduced a similar bill to H.R. 3731, which was H.R. 6302,
the Overtime Pay for Protective Services Act of 2016. On
November 16, 2016, the Committee on Oversight and Government
Reform ordered H.R. 6302 reported favorably, without amendment,
by voice vote, and on November 30, 2016, the House passed the
bill by voice vote under suspension of the rules. The Senate
passed H.R. 6302, as amended, on December 10, 2016 by unanimous
consent. The House then concurred to the Senate amendments on
December 13, 2016 by unanimous consent. On December 16, 2016
President Obama signed H.R. 6302 into law, with the bill
becoming Public Law No. 114-311.
Prior to consideration of H.R. 6302, the Committee on
Oversight and Government Reform held a hearing on compensation
and staffing problems at the Secret Service. The hearing was
held on November 15, 2016.\14\ At that hearing, Members
discussed the Secret Service's challenges in hiring and
retaining a sufficient number of special agents in order to
mitigate excessive overtime in violation of the pay cap.
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\14\Oversight of the Secret Service: Hearing Before the H. Comm. on
Oversight & Gov't Reform, 114th Cong. (2016).
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Section-by-Section

Sec. 1. Short title

Section 1 establishes the short title of the bill.

Sec. 2. Extension of overtime pay exception through 2018 for protective
services

Section 2 amends the Overtime Pay for Protective Services
Act of 2016 by extending the pay cap waiver for covered
employees of the Secret Service from December 31, 2016, to
December 31, 2018. Section 2 also requires two reports to the
Committee on Homeland Security and the Committee on Oversight
and Government Reform of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs of the
Senate on the effects of the changes, including the total
number of Secret Service personnel receiving additional premium
pay; the total amount of additional premium pay paid under the
waiver; and other information.

Sec. 3. Recruitment and retention efforts

Section 3 requires the Director of the Secret Service to
conduct and transmit to the appropriate committees of Congress,
updated threat assessments on most individuals protected by the
Secret Service within 180 days of enactment. Relatedly, this
section requires the Department to notify those committees when
the President exercises the authority to designate additional
protectees and threat assessments on them. Section 3 also
requires a report on the Secret Service's efforts to remedy the
personnel shortage within the agency, and a list of polygraph
examination questions be submitted to the committees.

Explanation of Amendments

There were no amendments to H.R. 3731 offered or adopted
during Committee consideration of the bill.

Committee Consideration

On September 13, 2017, the Committee met in open session
and, with a quorum being present, ordered the bill favorably
reported by voice vote.

Roll Call Votes

There were no roll call votes requested or conducted during
Full Committee consideration of H.R. 3731.

Application of Law to the Legislative Branch

Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill extends the U.S. Secret Service-specific waiver of
the pay cap for basic and premium overtime pay until the end of
calendar year 2018. As such, this bill does not relate to
employment or access to public services and accommodations.

Statement of Oversight Findings and Recommendations of the Committee

In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.

Statement of General Performance Goals and Objectives

In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to provide overtime pay for
employees of the United States Secret Service on a temporary
basis.

Duplication of Federal Programs

In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.

Disclosure of Directed Rule Makings

The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of section 551 of title 5, United States Code.

Federal Advisory Committee Act

The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.

Unfunded Mandates Statement

Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement, the Committee
has included below a letter received from the Congressional
Budget Office.

Earmark Identification

This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.

Committee Estimate

Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.

New Budget Authority and Congressional Budget Office Cost Estimate

Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:

U.S. Congress,
Congressional Budget Office,
Washington, DC, November 14, 2017.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3731, the Secret
Service Recruitment and Retention Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.

H.R. 3731--Secret Service Recruitment and Retention Act of 2017

Summary: H.R. 3731 would remove certain limits on premium
pay earned by employees of the Secret Service who either
provided protective services in calendar year 2017 or will
provide them in 2018. The bill's provisions would not apply to
years after 2018. CBO estimates that enacting the bill would
increase direct spending by $10 million in fiscal year 2018. We
also estimate that implementing the bill would increase
spending subject to appropriation by about $7 million in fiscal
year 2018 and $3 million in fiscal year 2019.
Because enacting H.R. 3731 would affect direct spending,
pay-as-you-go procedures apply. Enacting the bill would not
affect revenues.
CBO estimates that enacting H.R. 3731 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 3731 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 3731 is shown in the following table.
The costs of this legislation fall within budget function 750
(administration of justice).

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By fiscal year, in millions of dollars--
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2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2018-2022 2018-2027
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INCREASES IN DIRECT SPENDING

Estimated Budget Authority........................ 10 0 0 0 0 0 0 0 0 0 10 10
Estimated Outlays................................. 10 0 0 0 0 0 0 0 0 0 10 10

INCREASES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level..................... 7 3 0 0 0 0 0 0 0 0 10 10
Estimated Outlays................................. 7 3 0 0 0 0 0 0 0 0 10 10
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Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted in early 2018 and that the necessary
amounts will be appropriated for fiscal years 2018 and 2019.
Estimated outlays are based on the historical rate of spending
for Secret Service pay.

Direct spending (Retroactive pay)

H.R. 3731 would remove certain limits on premium pay earned
by employees of the Secret Service who provided protective
services in calendar year 2017. Assuming the bill is enacted in
early 2018, nearly all the additional pay earned in calendar
year 2017 would be paid retroactively in fiscal year 2018. The
retroactive pay authorized by H.R. 3731 would be considered an
entitlement for federal employees who have already performed
the work for which the bill would provide compensation.
Based on 2017 pay records through September of this year,
the Secret Service expects that the legislation would benefit
about 1,200 employees who would be paid about $8,600 more, on
average, for hours worked in calendar year 2017. Thus, CBO
estimates that enacting the bill would increase direct spending
by about $10 million in fiscal year 2018. (For comparison
purposes, the Secret Service disbursed about $13 million in
similar additional premium pay in calendar year 2016, which was
a presidential election year and for which limits on employee
compensation also were lifted.) If the bill is enacted later in
2018, then it would increase direct spending by more than $10
million because more retroactive pay would be required.

Spending subject to appropriation

For any hours worked in calendar year 2018--after the
assumed enactment of the bill--we expect that any additional
compensation would not be retroactive, but would be paid on a
regular basis (probably biweekly) as those hours are worked by
employees. Based on an analysis of information provided by the
Secret Service, CBO estimates that enacting the bill would cost
about $7 million in fiscal year 2018 and about $3 million in
fiscal year 2019, assuming appropriation of the necessary
amounts. If the bill is enacted later in 2018, then 2018
spending subject to appropriation would be less than $7 million
because more compensation would be paid retroactively (direct
spending).
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays that are subject to those
pay-as-you-go procedures are shown in the following table.

CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 3731, THE SECRET SERVICE RECRUITMENT AND RETENTION ACT OF 2017, AS ORDERED REPORTED BY THE HOUSE
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM ON SEPTEMBER 13, 2017.
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By fiscal year, in millions of dollars--
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2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2018-2022 2018-2027
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NET INCREASE IN THE DEFICIT

Statutory Pay-As-You-Go Impact.................... 10 0 0 0 0 0 0 0 0 0 10 10
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Increase in long-term direct spending and deficits: CBO
estimates that enacting the legislation would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
Mandates: H.R. 3731 contains no intergovernmental or
private-sector mandates as defined in UMRA and would impose no
costs on state, local, or tribal governments.
Estimate prepared by: Federal costs: Mark Grabowicz;
Mandates: Zach Byrum.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):

OVERTIME PAY FOR PROTECTIVE SERVICES ACT OF 2016

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Overtime Pay for Protective
Services Act of 2016''.

SEC. 2. PREMIUM PAY EXCEPTION IN [2016] 2016 THROUGH 2018 FOR
PROTECTIVE SERVICES.

(a) Definition.--In this section, the term ``covered
employee'' means any officer, employee, or agent employed by
the United States Secret Service who performs protective
services for an individual or event protected by the United
States Secret Service [during 2016] during 2016 through 2018.
(b) Exception to the Limitation on Premium Pay for Protective
Services.--
(1) In general.--Notwithstanding any other provision
of law, [during 2016] during 2016 through 2018, section
5547(a) of title 5, United States Code, shall not apply
to any covered employee to the extent that its
application would prevent a covered employee from
receiving premium pay, as provided under the amendment
made by paragraph (2).
(2) Technical and conforming amendment.--Section 118
of the Treasury and General Government Appropriations
Act, 2001 (as enacted into law by section 1(3) of
Public Law 106-554; 114 Stat. 2763A-134) is amended, in
the first sentence, by inserting ``or, if the employee
qualifies for an exception to such limitation under
section 2(b)(1) of the Overtime Pay for Protective
Services Act of 2016, to the extent that such aggregate
amount would exceed the rate of basic pay payable for a
position at level II of the Executive Schedule under
section 5313 of title 5, United States Code'' after
``of that limitation''.
(c) Treatment of Additional Pay.--If subsection (b) results
in the payment of additional premium pay to a covered employee
of a type that is normally creditable as basic pay for
retirement or any other purpose, that additional pay shall
not--
(1) be considered to be basic pay of the covered
employee for any purpose; or
(2) be used in computing a lump-sum payment to the
covered employee for accumulated and accrued annual
leave under section 5551 or section 5552 of title 5,
United States Code.
(d) Aggregate Limit.--With respect to the application of
section 5307 of title 5, United States Code, the payment of any
additional premium pay to a covered employee as a result of
subsection (b) shall not be counted as part of the aggregate
compensation of the covered employee.
(e) Effective Date.--This section and the amendments made by
this section shall take effect as if enacted on December 31,
2015.

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