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TIME TO BITE THE BULLET: FIXING FEDERAL LAW

ENFORCEMENT PAY AND BENEFITS

HEARING

BEFORE THE

SUBCOMMITTEE ON CIVIL SERVICE

AND AGENCY ORGANIZATION

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JULY 20, 2004

Serial No. 108–279

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

MARSHA BLACKBURN, Tennessee

PATRICK J. TIBERI, Ohio

KATHERINE HARRIS, Florida

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

BETTY MCCOLLUM, Minnesota

———

BERNARD SANDERS, Vermont

(Independent)

MELISSA WOJCIAK, Staff Director

DAVID MARIN, Deputy Staff Director/Communications Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON CIVIL SERVICE AND AGENCY ORGANIZATION

JO ANN DAVIS, Virginia, Chairwoman

TIM MURPHY, Pennsylvania

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

ADAH H. PUTNAM, Florida

NATHAN DEAL, Georgia

MARSHA BLACKBURN, Tennessee

DANNY K. DAVIS, Illinois

MAJOR R. OWENS, New York

CHRIS VAN HOLLEN, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

RON MARTINSON, Staff Director

B. CHAD BUNGARD, Deputy Staff Director and Chief Counsel

DETCHEN BANNIGAN, Clerk

TANIA SHAND, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on July 20, 2004 ............................................................................... 1

Statement of:

Kelley, Colleen, national president, National Treasury Employees Union;

Frederick Bragg, president, Federal Bureau of Investigation Agents

Association; Lou Cannon, president, D.C. State Lodge, chairman, National FOP Federal Officers Association; and T.J. Bonner, president,

National Border Control Council ................................................................. 26

Sanders, Ronald, Associate Director for Strategic Human Resources Policy, U.S. Office of Personnel Management .................................................. 6

Letters, statements, etc., submitted for the record by:

Bonner, T.J., president, National Border Control Council, prepared statement of ........................................................................................................... 77

Bragg, Frederick, president, Federal Bureau of Investigation Agents Association, prepared statement of .................................................................. 40

Cannon, Lou, president, D.C. State Lodge, chairman, National FOP Federal Officers Association, prepared statement of ....................................... 62

Davis, Hon. Jo Ann, a Representative in Congress from the State of

Virginia, prepared statement of ................................................................... 5

Kelley, Colleen, national president, National Treasury Employees Union,

prepared statement of ................................................................................... 28

Sanders, Ronald, Associate Director for Strategic Human Resources Policy, U.S. Office of Personnel Management, prepared statement of .......... 9

(1)

TIME TO BITE THE BULLET: FIXING FEDERAL

LAW ENFORCEMENT PAY AND BENEFITS

TUESDAY, JULY 20, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CIVIL SERVICE AND AGENCY

ORGANIZATION, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 10:05 a.m., in room

2203, Rayburn House Office Building, Hon. Jo Ann Davis (chairwoman of the subcommittee) presiding.

Present: Representatives Jo Ann Davis of Virginia, Davis of Illinois, Norton and Van Hollen.

Present: Ron Martinson, staff director; Chad Bungard, deputy

staff director and chief counsel; Chris Barkley and James Boland,

professional staff members; Detgen Bannigan, clerk; John Landers,

detailee; Tania Shand, minority professional staff member; and Teresa Coufal, minority assistant clerk.

Ms. DAVIS OF VIRGINIA. The Subcommittee on Civil Service and

Agency Organization will come to order.

I want to begin by thanking everyone for being here today. We

will be joined by a few more members on the subcommittee, but we

are going to go ahead and start so that we do not hold everyone

up.

This is an issue of the utmost importance to me and I know a

lot of other Members of Congress. A year ago, the subcommittee

held a hearing on the need for compensation and benefits reform

for Federal law enforcement officers. It does not seem like it has

been a year ago, but I guess it has been. The hearing evaluated the

existing inequalities within the Federal law enforcement community and addressed several piecemeal approaches relating to law

enforcement officer compensation and benefits reform.

When I use the term ‘‘law enforcement officer,’’ I mean it in the

broad sense, which is the correct sense. As pointed out at the last

hearing, when law enforcement officials are killed in the line of

duty, their names are inscribed as law enforcement officers on the

National Law Enforcement Officers Memorial. Sadly, however,

some of those very officers are not recognized as law enforcement

officers when they are alive for pay and retirement purposes. This

just does not sit very well with me, and with many others.

It was encouraging at that hearing to hear the Department of

Justice witness recognize this current all-or-nothing disparate

treatment among law enforcement personnel, and that DOJ is in

fact a strong proponent of eliminating these disparities. There is no

2

doubt that the Federal law enforcement retirement system must be

modernized to reflect the dangers and challenges that await our

Nation’s protectors in this post-September 11 world.

Another question broached at the hearing was how do we make

sure we are paying our Federal law enforcement agents properly.

There are several factors and questions to consider such as: Is the

current pay scale meeting the needs of law enforcement officers in

high cost of living areas? Is the current general schedule classification and basic pay system sufficiently flexible to address specific

law enforcement problems? How do we resolve differences in pay

flexibility among agencies, such as employees for DOD and DHS,

where law enforcement employees will be converted to more labor

market and performance systems? How do we resolve the perceptions of inequity and existing inconsistencies in premium pay entitlements? And how do we create a premium pay system that eliminates the pay compression for GS criminal investigators, while not

creating another compression problem or inversion with higherlevel employees?

Something needs to be done to correct the inconsistencies and inadequacies that currently exist for our folks who are on the front

line risking their lives for our country. We have a lot of highly motivated, talented employees out there and we do not want to lose

them or treat them unfairly. That is why shortly after the last

hearing I introduced the Federal Law Enforcement Pay and Benefits Parity Act which was subsequently signed into law on December 19 of last year. That act required the Office of Personnel Management to submit a report and recommendations to Congress on

eliminating disparities in pay and benefits entitlements among different groups of Federal law enforcement officers. I thought that

report, which was due on April 30, 2004 would never get here. It

was finally issued last Thursday, July 15, 2004. I would like to

commend OPM for its hard work in putting together a thorough

and thoughtful report on Federal law enforcement pay and benefits, even if it was late.

The report makes several specific recommendations, but they are

all subsumed by OPM’s over-arching recommendation that Congress grant it the administrative authority, subject to congressional

oversight, to work in conjunction with the Attorney General and

other stakeholders to modernize the entire pay and retirement system structure for the Federal law enforcement community, including modernizing the definition of law enforcement officer for coverage purposes.

OPM believes an administrative solution strikes the appropriate

balance between the Federal Government’s interests on one hand,

and the relevant agencies’ needs on the other. I look forward to

hearing from OPM on all of its recommendations and findings, and

the stakeholders on their particular thoughts on the report.

All of your comments today will be extremely helpful as the subcommittee continues to pursue its ongoing efforts to reform Federal

law enforcement pay and benefits aiming toward one governmentwide solution.

We will wait just a few seconds here, and our ranking member

has come in, just at the opportune time because I am about to recognize him for an opening statement.

3

Mr. DAVIS OF ILLINOIS. Thank you very much.

Ms. DAVIS OF VIRGINIA. You are very welcome, Mr. Davis. It is

always a pleasure to have you.

Mr. DAVIS OF ILLINOIS. I will tell you, after being up all night

coming from Honolulu.

Ms. DAVIS OF VIRGINIA. Our heart breaks through that you are

just getting in from Honolulu, Hawaii. [Laughter.]

We will give you a second to get your thoughts together.

Mr. DAVIS OF ILLINOIS. Thank you very much, Madam Chairwoman.

Federal officers, in varying degrees and capacities, uphold the

Constitution and protect the public welfare. Over the years, however, there have been much debate and controversy, with no permanent resolution, on which types of Federal employees should be

classified as ‘‘law enforcement officers,’’ and as such should receive

enhanced pay and retirement benefits.

In 1988, the Anti-Drug Abuse Act established the National Advisory Commission on Law Enforcement. The Commission studied

pay benefits and other issues related to the recruitment and retention of employees defined as law enforcement under Federal retirement laws. The Commission’s report, which was released in April

1990, made several recommendations for interim pay enhancements for law enforcement officers and suggested that the Office of

Personnel Management, OPM, conduct a further study on the need

for a new pay system for Federal law enforcement.

The Commission’s report did note, however, that the statute defining Federal law enforcement officer was broad, encompassing

both traditional positions within the field and less traditional positions not generally considered part of the law enforcement community.

As recommended by the Commission, Congress enacted the Federal Employees Pay and Comparability Act of 1990, which enhanced law enforcement pay and directed OPM to conduct a study

of the pay and job evaluation for Federal law enforcement officers.

OPM, along with the 45-member advisory committee drawn from

law enforcement agencies and employee groups, produced in September 1993 a report entitled, A Plan to Establish a New Pay and

Job Evaluation System for Federal Law Enforcement Officers.

Two months later, the Subcommittee on Post Office and Civil

Service held a hearing on the report and its findings. In 1999, this

subcommittee held a hearing on this issue entitled, Law Enforcement Retirement: Who Qualifies and Why. Last year, the subcommittee held a hearing on Federal law enforcement personnel

entitled, How Can We Fix an Imbalanced Compensation System?

Hearings have been held. Reports have been written, and the problem continues.

OPM’s latest report may make the difference. Released last

week, OPM’s report, Federal Law Enforcement Pay and Benefits,

chronicles the legislative and historic missteps that have led to the

ad hoc approach to law enforcement classification, pay and benefits. I agree, however, with OPM’s conclusion that a comprehensive

and integrated governmentwide approach is needed to finally address this problem.

4

OPM recommends that Congress give it regulatory authority to

establish a governmentwide framework for law enforcement retirement, classification and basic pay and premium pay systems. No

specifics were offered. I would be interested in seeing a draft legislative proposal. Furthermore, I would like to hear the witnesses’

view on the OPM’s report and any recommendations that they may

have.

Again, Madam Chairwoman, I thank you for holding this hearing

and look forward to hearing the witnesses.

[The prepared statement of Hon. Jo Ann Davis follows:]

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Ms. DAVIS OF VIRGINIA. Thank you, Mr. Davis. It is good to have

you here with us today. As always, we appreciate your input.

I ask unanimous consent that all Members have 5 legislative

days to submit written statements and questions for the hearing

record, and that any answers to written questions provided by the

witnesses also be included in the record.

Without objection, it is so ordered.

I ask unanimous consent that a statement from the Federal Law

Enforcement Officers Association be included in the record.

Without objection, it is so ordered.

I ask unanimous consent that all exhibits, documents and other

materials referred to by Members and the witnesses may be included in the hearing record, and that all Members be permitted

to revise and extend their remarks.

Without objection, it is so ordered.

On the first panel today, we are going to hear from Mr. Ronald

Sanders, Associate Director for Strategic Human Resources Policy

at the U.S. Office of Personnel Management. It is standard practice

for this committee to administer the oath to all witnesses at one

time. If all the witnesses who are here with us today who will be

testifying could please stand, including any of those who may help

in answering the questions. I will administer the oath. Anyone who

is going to be helping Mr. Sanders answer the question, you are

going to need to be under oath as well. My goodness, you have an

entourage with you.

If you would please raise your right hands.

[Witnesses sworn.]

Ms. DAVIS OF VIRGINIA. Let the record state that the witnesses

have answered in the affirmative and you all may be seated.

Mr. Sanders, we thank you again for being here with us today.

We have your full testimony that we will put in the record, but if

you would like to summarize for 5 minutes, we would love to hear

from you.

STATEMENT OF RONALD SANDERS, ASSOCIATE DIRECTOR

FOR STRATEGIC HUMAN RESOURCES POLICY, U.S. OFFICE

OF PERSONNEL MANAGEMENT

Mr. SANDERS. Thank you, Madam Chairwoman and members of

the subcommittee. OPM Director Kay Coles James has asked me

to testify on her behalf this morning, and we welcome the opportunity to address a vital subject, pay and benefits disparities within the Federal law enforcement community.

As its title indicates, this hearing is a key milestone in the subcommittee’s ongoing efforts to adopt a comprehensive, integrated

solution to those disparities. The administration shares that goal

and we sincerely appreciate your leadership in that regard.

The urgency is clear and present. One need only consider the

dramatic challenges that have confronted the Federal law enforcement community in the wake of the terrorist attacks of September

11 and the beginning of our Nation’s all-out war on terrorism. The

specter of those horrific events and the ongoing need to secure our

homeland demand that we pay careful attention to the strategic

management of our frontline Federal law enforcement personnel.

7

My remarks today will focus on our recent report to Congress on

Federal law enforcement pay and benefits. That report was submitted last week and this hearing begins the process of examining,

discussing and acting on its conclusions. It focuses on three critical

areas: retirement benefits, classification and basic pay, and premium pay.

In addition, we concentrate our analysis on two categories of employees with law enforcement responsibilities: one, those who qualify as law enforcement officers, or LEOs, under the civil service and

Federal employee retirement systems; and two, those other law enforcement employees who have arrest authority, but who do not

otherwise qualify as LEOs.

The report and this hearing come at a pivotal time for the Federal law enforcement community. The demands on Federal law enforcement agencies and their professionals are more global, more

dangerous and more dynamic than ever before, rapidly evolving in

ways that we never anticipated just a few years ago. There is no

doubt that the Federal law enforcement work will continue to

evolve at a dramatic rate in this post-September 11 world.

However, the rules that govern the pay and retirement of our

law enforcement personnel have not kept pace. They do not reflect

this reality and remain inflexible and fragmented. LEOs today are

covered by a rigid half-century-old retirement structure, an outdated classification and basic pay system that is not sufficiently

sensitive to their unique labor markets and performance requirements, and a confusing patchwork of premium payments.

For example, we found that with respect to LEO retirement coverage and benefits, the evolution of Federal law enforcement work

has exacerbated the difficulty of applying the circa 1948 definition

of law enforcement officer to modern missions and work situations.

Legislation and litigation have extended enhanced LEO retirement

benefits to some within the broader law enforcement community,

but not others, exacerbating differences in the retirement coverage

of similarly situated officers. LEO retirement provisions encourage

experienced officers to retire at an early age, when it may be in the

interest of law enforcement agencies to retain these employees just

as they are reaching their peak in terms of experience.

With respect to basic pay for LEOs and other law enforcement

personnel with arrest authority, the 50-plus-year-old general schedule system does not provide for sufficient flexibility to address law

enforcement-specific classification and pay problems, which may

vary by occupation, grade level, location and level of performance.

With the creation of new, more flexible basic pay systems for employees, including over 50,000 law enforcement personnel as we

have defined them in the Departments of Homeland Security and

Defense on the horizon, other law enforcement agencies still bound

by the general schedule will be at a significant disadvantage.

Finally, with respect to premium pay rules that cover LEOs and

others with arrest authority, there are complex pay differences

among them and between them, and this may be exacerbated by

the fact that Congress has provided administrative authority to set

premium pay rules to FAA, TSA and DOD, the latter in conjunction with OPM. Extending that authority governmentwide would

8

ensure needed consistency, while allowing for flexibility to meet

unique agency mission requirements.

Thus, it is clear that considerable and sometimes confusing differences currently exist among law enforcement personnel with respect to retirement, basic pay and premium pay. While the root

causes may vary, we believe this patchwork of differences, in particular disparities between agencies that have flexibilities and

those that do not, is counterproductive to the 21st century Federal

law enforcement mission.

To meet that mission, our report recommends that Congress provide OPM with broad administrative authority to establish a governmentwide framework for law enforcement retirement, classification and pay, and premium pay. Such authority would be exercised

with the concurrence of the Attorney General and in consultation

with employing agencies and employee stakeholders. This framework would be tailored specifically for law enforcement jobs, providing all law enforcement agencies with the same flexibilities that

only a few now enjoy, but with OPM playing a central coordinating

role responsible for balancing governmentwide interests with

unique agency needs, missions and cultures.

With respect to retirement, this framework would vest OPM with

authority to modernize the definition of law enforcement officer and

establish a flexible benefits structure that comports with it. One

option under consideration would create a second LEO retirement

tier with benefits falling between current law enforcement retirement and regular civil service retirement benefit levels.

With respect to classification and basic pay, this framework

would provide all law enforcement agencies with flexibility similar

to those at DHS, DOD and other agencies enjoy, but subject to central OPM coordination.

Finally, with respect to premium pay, the framework would provide a flexible administrative authority so that premium pay rules

can be rationalized and modified to address current and emerging

mission needs.

While we separately examined each of these three policy areas,

we believe our recommendations should be acted on as a package.

This package approach is imperative, given that the three areas

are inextricably interrelated. We believe that taken together our

recommendations will ensure that OPM and the Federal law enforcement community are equipped to balance agency and government interests in strategically managing some of our Nation’s most

valued and vital human resources. That is a goal that I am certain

we all share.

Madam Chairwoman, on behalf of Director James, I want to

thank you for the opportunity to testify on this vital topic. I will

be happy to answer any questions you or members of the subcommittee may have.

[The prepared statement of Mr. Sanders follows:]

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Ms. DAVIS OF VIRGINIA. Thank you very much, Mr. Sanders. We

appreciate your being here this morning.

I generally go to my ranking member, but I am going to ask a

few questions first here, if our ranking member does not mind.

As you know, OPM gets blamed for a lot of things that are not

its fault, but rather Congress’, which a lot of times is true, like

many of the disparities pointed out in your report. I see that OPM

wants to take full responsibility of both making the rules and carrying them out. Did anyone warn you to watch out for what you

wish for because you just might get it?

Mr. SANDERS. We did so with some trepidation because this is a

huge, complex problem. It has been growing literally for five-anda-half decades. On the other hand, we believe that now accountability for the law enforcement community, particularly their pay

and retirement benefits, is very diffuse. It is spread among a number of agencies at a time when the need for coordination and cohesion among those law enforcement agencies in meeting mission requirements is at an all-time high.

So working with the Attorney General, we believe that by concentrating and consolidating that accountability, as difficult as the

problems may be, will provide for a more integrated strategic solution to these problems, bring about consistency where it is appropriate, but balance the need for agency flexibility where that makes

sense as well.

Ms. DAVIS OF VIRGINIA. Then you cannot come back and blame

us if you do it.

In all seriousness now, I am deeply disappointed that your report

and recommendations simply ignored groups seeking LEO status,

solely because they did not have arrest authority. Does your exclusion of these groups from the report mean that OPM would ignore

them if Congress granted the authority you seek to create a comprehensive pay and retirement system, simply because they do not

have arrest authority?

Let me give you two more questions on the same subject, and

then you can answer them all. And if your answer is that you will

not ignore them, why are they excluded from this report? Then do

you intend to ignore the groups that do not have arrest authority,

even if they are part of the larger law enforcement community? Or

are you planning to take away coverage from currently covered occupations that do not have arrest authority?

I am referring now to, you have cooks and support staff in the

prisons who do not have arrest authority, yet they are considered

LEOs and they get all the benefits. Yet you have Customs inspectors who do not get the benefits.

Mr. SANDERS. Let me speak to the last question first, because I

know that is on a lot of folks’ minds. Let me respond in two respects as well: one, with respect to prison support personnel; the

other more generally because I know that some are concerned

about losing their current LEO status.

With respect to prison support personnel, Congress extended

LEO coverage to them in the 1950’s for a variety of reasons. To be

sure, they are in theory supposed to meet physical requirements;

to be sure, they do have limited detention authority under the clasVerDate 11-MAY-2000 09:18 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 D:\DOCS\98745.TXT HGOVREF1 PsN: HGOVREF1
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sic definition of investigate, apprehend and detain, how we have

defined LEOs today.

To be quite candid, we did not choose to question that wisdom.

Congress did it for a variety of reasons, and those reasons may still

exist. We just did not focus on them. Instead, we tried to sharpen

our focus on the law enforcement community as it is more traditionally defined. You have already pointed this out, Madam Chairwoman, the sort of conventional definition of law enforcement officer is far broader than the more restrictive definition that the retirement systems provide for coverage. I want to speak to that.

So we focused on those who meet the classic definition and those

with arrest authority for a particular reason. For those that have

LEO status today, while it is premature to talk about whether they

would be grandparented or anything like that, because we just proposed this authority and Congress certainly has not had a chance

to act on it. I can tell you this, we are extremely sensitive to the

concerns about folks who have that status today and are worried

about losing it.

Given the uncertainties of the future, particularly congressional

action, there is no way that I could promise or guarantee that status will not be affected. I can tell you that we are very sensitive

to that. I can tell you that agencies are very sensitive to that. In

trying to balance governmentwide interests with agency interests,

employee interests are part of that equation as well. Frankly, the

last thing we would ever try to do intentionally is to stop agency

operations in the exercise of the authority we have asked for.

So while I cannot promise anything, what I can say to those who

have that status today we are sensitive to that concern. We know

you have made major life decisions based on the expectations that

you have, and we will do everything we can to respect and honor

them.

Now, to the groups that were excluded, they were excluded deliberately. Let me take us back to first principles, this notion of a

young and vigorous work force. We believe that principle, while it

needs to be modernized, is as valid today as it was in 1948. When

you think about that first principle, there are a number of consequences and implications from it. What it says is that the government in certain circumstances needs a young and vigorous work

force. That is the principle I am talking about. And that in order

to meet that need, it takes extraordinary action. It says to employees, you cannot work beyond this age. It says you cannot start

work beyond this age. It says you are going to have a shortened

career whether you like it or not because there are rigorous physical demands in the job. That is the young and vigorous.

Now, if you buy that first principle, that is the reason we have

enhanced retirement benefits, to say to those employees that while

we will take extraordinary action to limit the length of your career,

we want to make sure that when you retire after long and faithful

and honorable service, that you have a pension that is as financially viable as a regular civil servant who gets to work for 30 or

35 years. That is the reason for the enhanced benefits.

So again, if you buy the first principle, the reason that we have

excluded certain groups from coverage of the report and our recommendations is because we do not believe, based on the analysis

18

that we have done, that there are sufficient reasons for a young

and vigorous work force of, fill in the blank; let me be candid because I think we know who we are talking about. A young and vigorous work force of assistant U.S. Attorneys, I think you could

make a compelling case that you need just the opposite. That is

probably not right, because that is old and decrepit. [Laughter.]

What I mean is seasoned and experienced.

Ms. DAVIS OF VIRGINIA. Old and experienced.

Mr. SANDERS. Seasoned and experienced. I do not mean to make

light of it, because I know their concerns are foremost in their own

eyes, but the same thing with IRS revenue officers. I know that has

been a proposal as well. If there is a compelling government interest to truncate their careers, to say we need a young and vigorous

work force because of the physical demands on he job, then so be

it. That is the part of the definition that we think we need to modernize.

The reason we have concentrated on the classic definition, and

there is no intention to repeal that classic definition of investigate,

apprehend and detain, but we believe that the clearest rationale for

additional consideration should focus on those people who have arrest authority, because there is a clear nexus between the exercise

of that arrest authority to potentially having to use deadly force in

the performance of their duties, to actually go forward into danger,

rather than retreat from it. We believe that there is compelling

reason to consider them for some additional enhancements, but not

those others where, again, we see no evidence that there is a need

for a young and vigorous requirement with all of the consequences

thereof.

Ms. DAVIS OF VIRGINIA. I will come back to that. I am going to

yield now to my ranking member, Mr. Davis, for questions.

Mr. DAVIS OF ILLINOIS. Thank you very much, Madam Chairwoman.

Following up, are there other characteristics of law enforcement

aside from the youthfulness of the work force and the danger that

would lend itself to enhanced benefits or pay?

Mr. SANDERS. I think there are, but let me qualify my answer

because I will go back and belabor the point with regard to that

first principle. This has nothing directly to do with danger or

threat or hazard. There are other ways to compensate employees

for that. It has everything to do with the government taking extraordinary action to shorten people’s careers because the government has made the judgment that they cannot work as long as others, whether they want to or not.

So what are some of those characteristics? Again, this is based

on the analysis that led to our report, so I would characterize it as

preliminary. Much more intensive work needs to be done with the

law enforcement agencies. But if you take, for example, guard or

police forces that have traditionally fallen short of the traditional

LEO definition, even though it has been extended to some. For the

most part, uniformed police forces in the executive branch are not

covered by LEO retirement. That may have been appropriate some

time ago, but if you look at those police forces today, while many

of them may not meet the primary duty test of law enforcement officers, there are others of them who are on such elite units as

19

SWAT teams, explosive ordnance disposal teams, hostage rescue

teams.

There is compelling reason to make sure that they are vigorous.

I will not use the word ‘‘young’’ because I think the definition of

‘‘young’’ has frankly changed over the last five-and-a-half decades.

The physical capabilities of a 50-year-old in 1948 are far different

than what they are today, speaking personally. But if you look at

those elite units; if you look at what had been traditionally guard

or police forces, or inspectors for that matter who 5 years ago,

frankly, we never thought that they would be on the front lines in

antiterrorism efforts, and yet today they find themselves there.

So that is part of our analysis in trying to modernize the definition to extend it to those emerging law enforcement occupations,

duties, responsibilities that frankly no one thought of in 1948 or

the last time that this particular law has been visited.

Mr. DAVIS OF ILLINOIS. Would you give us an example of how

broad and how deep the disparities might be in different areas? Are

there categories of personnel where there is a big difference between their pay and retirement benefits versus others?

Mr. SANDERS. Yes, sir. There are a couple of fairly notable examples. Let’s take uniformed police. There are four uniformed police

forces, two in the executive branch, one in the Judicial and one in

the Legislative, the Capitol Hill Police, that have LEO coverage, in

contrast to other uniformed police forces in DOD or DHS, Veterans

Affairs, that do not. When they operate in the same labor market,

that is problematic.

Those same agencies, particularly the police forces in the Capitol

and the legislative branch and the Judicial Branch, also enjoy significant pay flexibility. So if you look at the full performance level

frontline officer in those agencies compared to Federal Protective

Service, there are wide disparities in pay.

As I indicated earlier, those are symptoms. The root cause is the

flexibility. Some have it; some do not. As DOD and DHS move toward a system that allows them, and I cannot say yet whether they

will exercise this, but assume for the moment they will, they are

moving toward a day when they have the authority in conjunction

with OPM to develop a law enforcement-specific set of personnel

policies and rules, particularly governing compensation. As more

and more move in that direction, you have some with flexibilities,

some without, those disparities will simply increase.

Is it a matter of urgency now? No, but this is an opportunity to

get ahead of the game.

Mr. DAVIS OF ILLINOIS. How do Federal law enforcement officials

compare, let’s say, with State and local officials in pay classification

and retirement benefits?

Mr. SANDERS. Those comparisons are not easy to make. With

uniformed police, even the duties of a beat cop in LA or New York

are probably different than uniformed police in the Federal Government. Nevertheless, so let me qualify the comparisons. Here is

what the data tells us, that for law enforcement officers generally,

there is not an across-the-board recruiting and retention problem;

that generally at the full performance level, pay is quite competitive.

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Let me just add a footnote here. When we compare pay, we are

comparing base salary to base salary, with State and local officials,

typically detectives and others, whose job titles do not exactly

match. What we do not count in those comparisons are such things

as law enforcement availability pay, which adds another 25 percent. Nor do we count the fact that availability pay and in some

cases administratively uncontrollable overtime are also creditable

to retirement, toward annuity. Those are not counted in those comparisons. Nevertheless, we believe at the full performance level for

law enforcement officers, we are quite competitive and the retention figures bear that out.

There are, however, targeted problems. We have heard, for example, from our colleagues at the FBI Agents Association, and they

tell some compelling stories about new agents and having to relocate to labor markets where the going rate for similar jobs is far

higher. So at the entry level in some, but not all, law enforcement

categories, we are not as competitive as we could be. The measures

taken in 1990 with the special rates for law enforcement officers

and the geographic adjustments have pretty much run their course.

These problems are dynamic and one of the reasons we have

asked for administrative authority to deal with them is because

they literally change from year to year. So the disparities are more

targeted than they are across the board when it comes to pay. With

uniformed officers, quit rates are unusually high. Some of that may

be because of transfer from one branch of government to another,

but some may be because pay is not as competitive, even though

OPM about a year ago now phased in special rates for uniformed

police officers. It is still too early to tell their effect. So those disparities exist among those who are covered by retirement systems

and not those who are covered with a more flexible pay system.

Mr. DAVIS OF ILLINOIS. Thank you very much, Madam Chairwoman.

Ms. DAVIS OF VIRGINIA. Thank you, Mr. Davis.

Ms. Norton.

Ms. NORTON. Thank you, Madam Chairwoman. This is an important hearing. This is a problem that has been around since Methuselah and does not seem to get very far.

I certainly agree with the Chair that it is time to rationalize pay

and benefits. I think the question is how, and that becomes very

difficult when you consider the hodgepodge Congress made out of

this mess, not to mention the courts who have gotten into it.

I simply want to say, Madam Chairwoman, that I am on the

Homeland Security Committee and I think it is pretty dangerous

now to go on with the present system we have, whereby there are

different strokes for different folks when it comes to law enforcement in agencies. I am on another committee where this issue constantly arises about inequalities in pay and benefits.

So the first thing I would like to say is I think the kinds of distinctions we have now among law enforcement officers is positively

dangerous. It is no longer just laughable. In the post-September 11

period, some kind of rational system has to come forward. I am not

sure how we maintain stability in the law enforcement work force

since, if you are in one of these positions that is not as favorable

as another, I am sure you are looking around to get to the other.

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It would be very interesting to know what the turnover is in the

less-favored positions.

I understand, of course, that the government has some positions

which pay less, because less is involved. There are different categories, different layers of law enforcement officer. All that could

be accommodated.

My problem is not, and I think this report is a step forward, my

problem is what does OPM really have in mind when it wants,

‘‘broad’’ authority. I think a lot of that needs to be fleshed out. For

example in the executive summary on page one, and I am reading,

all agencies would have the flexibility to make strategic decisions

that support mission accomplishment in a cost-effective manner.

That sounds to me to say you can devote however much money you

feel like to the law enforcement end of it. Again, if you have an

agency, for example, that is human capital-oriented, you just may

feel in your own agency that law enforcement is not very important, and maybe you are right. The study says both agency interests and governmentwide interests would be considered and balanced, and somehow the Attorney General would be the final, or

his concurrence would be necessary.

Well, I am not sure about that system because I am not sure we

would not end up with the same kind of hodgepodge. I do not know

if OPM has any intention to flesh out more of what it thinks a system would look like, because I would be very interested in hearing

what you would have to say on that.

Mr. SANDERS. We have certainly thought about it. We have

known for over a decade that the general schedule really does not

value law enforcement pay very effectively. It does not take into account, for example, the need to operate without close supervision,

to literally make life and death decisions in an instant. None of

that is reflected in the classification standards for the general

schedule.

So we have begun thinking about it. But let me add another

phrase to the architecture here, because while agency flexibility is

an important element of that architecture, equally important is the

notion that it would be subject to strong central OPM coordination

to avoid any sort of destructive interagency competition. OPM

would coordinate, literally broker pay adjustments and pay ranges

with agencies having flexibility to operate within a broad framework, the parameters of which we would set with the entire law

enforcement community.

One of the things that has become clear to us is that it is almost

impossible, in fact I would probably strike the word ‘‘almost,’’ to

come up with a one-size-fits-all solution to this. When you look at

Homeland Security with some of its emerging occupations, they

have the same sort of frontline homeland security responsibilities

as others, for example, in the Department of Justice, but their competencies, their career paths, even their labor markets are different.

So imposing that sort of one-size-fits-all scheme on two departments trying to find lowest common denominator is problematic.

On the other hand, establishing parameters so that they are not

cannibalizing each other, that is another thing. That is the central

coordinating role that OPM would play, with the Attorney General.

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If you will permit me the analogy, you have the President’s chief

human capital officer and the Nation’s chief law enforcement officer

working together as stewards of this community to try to bring

them all together, to set those parameters where they need to be,

and balance the flexibilities.

Ms. NORTON. What about the Homeland Security Department?

Mr. SANDERS. Absolutely, and they are going to be a key player

in this and at the table.

Ms. NORTON. I do not know what the Attorney General has to

do with it. Particularly when you are talking in Washington, law

enforcement really means security. So that we are not just talking

about stopping somebody from stealing something. We are really

talking about security. So I would be very concerned if the major

player was not the Homeland Security Department, rather than

the Attorney General.

Mr. SANDERS. There is no question that Homeland Security will

be part of this, but the reason the Attorney General is there is because literally by Constitution, he is the chief law enforcement officer, sort of the steward of that community as its principal focus.

Ms. NORTON. Thank you, Madam Chairwoman.

Ms. DAVIS OF VIRGINIA. Thank you, Ms. Norton.

Mr. Van Hollen.

Mr. VAN HOLLEN. Thank you, Madam Chairwoman. Thank you,

Dr. Sanders for being here. I thank you for holding this hearing,

Madam Chairwoman. As you and others have noted, it has been an

issue that people have worked on for many years. I think we can

all agree that the inconsistencies in the system do lead to unfairness and inequality that needs to be worked on. At the same time,

as you suggested, there are some circumstances in one agency that

may be different than others, and we need to obviously be sensitive

to that.

My particular interest in this issue, my attention was grabbed by

the situation at NIH, the National Institutes for Health, where the

Federal law enforcement officers there are in my view not treated

with the kind of respect and dignity they deserve, compared to

many others that are in Federal law enforcement. The result has

been high attrition rates at the same time that people have recognized the security threat at NIH has risen. We built a fence around

the complex recently. They are in the process of constructing a biohazard level III laboratory, a new one at a major intersection.

So we have rising concerns with respect to homeland security,

and it is very important that we have a police force that gets the

respect that it deserves in order to make sure that we retain good

people there. That is part one of the bill that I know is identified

under the umbrella of different pieces of legislation that we are

considering today.

Let me just pick up on what my colleague, Ms. Norton, was asking about with respect to delegating OPM the administration with

the authority. Is there any other example that you know of where,

for example, retirement benefits for Federal employees are left subject to the regulatory process as opposed to being in the code, in

the law?

Mr. SANDERS. No, sir. That part of it would be an extension. On

the other hand, we believe that the complexities warrant it. There

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are parallels, however. For example, Congress has vested with

OPM the authority to administer the Federal Employee Health

Benefits Program, which is equally compelling and important within a very broad statutory framework. We determine eligibility and

benefit coverage and levels, etc., under FEHB. So this would be

sort of parallel to that.

Mr. VAN HOLLEN. But I guess you have obviously different

groups of Federal law enforcement officers around the country. The

concern people would have would be the possibility that retirement

benefits, which is obviously something that people bank on for the

long term, could be subject to change through administrative procedure as opposed to going through a full-blown legislative process.

I just flag that as something that I believe, and you have reinforced, this would be new authority, unprecedented in that sense.

I do think that before we tread down that road, Madam Chairwoman, we need to just think of what the consequences are.

I thank you for the report and I look forward to the other witnesses.

Ms. DAVIS OF VIRGINIA. Thank you, Mr. Van Hollen. Actually,

that was one of the followup questions I was going to ask Mr.

Sanders, because one of the things that does concern me is if we

were to give this broad authority to increase or cut benefits, it

could be very costly. It would be my concern that the administration could just come in and cut benefits anytime they would like

if we vest all the authority into OPM. So I think that is where you

were going with that, and that is one of the concerns I have.

Another question I have is, and Ms. Norton touched on that, is

why should the Attorney General have veto power, because that is

basically what you are suggesting, that he or she would have total

veto power over any proposal to revamp the system, because you

are basically saying the Attorney General has the right to say yea

or nay. Is that not correct in what you suggested?

Mr. SANDERS. That is correct. The exact language of the report

is, with the concurrence of the Attorney General. While in theory

that would potentially represent veto power, we look at this as

more of a strategic partnership. I will emphasize that while the Attorney General is singled out in the report, that should not be

taken to mean that other key law enforcement agencies, particularly Homeland Security, will not be at the table working with us.

It is that strategic partnership. OPM can bring considerable

human capital expertise to the table, but we are not accountable

for law enforcement operations. We need to make sure that the

people who are responsible for missions are there. Frankly, Madam

Chairwoman, I think that is one of the safeguards here, because in

terms of accountability, that is sort of our accountability in the first

resort to that community, to those agencies that have a mission to

perform and we want to make sure that human capital strategies

support that mission, not undercut it.

So having them at the table, the Attorney General as Director

James’ counterpart in this, but other law enforcement agencies at

the table as well I think is critical to bring that operational responsibility and perspective to the mix.

Ms DAVIS. Do not get me wrong. This is not saying anything negative about the current Attorney General or any other Attorneys

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General, but inherently would they not be more focused on their

own agency’s role, their own law enforcement focus within their

own agency, as opposed to, say, the law enforcement folks over at

the Veterans Administration or somewhere?

Mr. SANDERS. That may be true, but if you put the broader community-wide hat on, flexibilities in one agency if they are not balanced by flexibilities in another, if they are not managed, coordinated etc., as part of this effort, that could still have a negative impact on your agency. I think that is part of the balancing act here.

No one is suggesting it is going to be easy, but part of the balancing act is to have all of the agency heads who will be a participant in this not only think about their own agency and the flexibilities they need, but also to think about the broader law enforcement

community.

I believe that, particularly in recent years, as that law enforcement community has had to work together in a far more cohesive,

coordinated way in an operational context, that they will be able

to do that. They understand now with interagency task forces literally the rule rather than the exception, that there needs to be

some coherence and consistency in the way we manage our personnel, even while they may have unique mission and culture needs

in their own respective agencies.

Ms. DAVIS OF VIRGINIA. I understand that. I understand what

you are saying that you need to have all the broader range of agency heads who have input and have something to bring to the table,

but yet your suggestion is only giving the veto power to the AG.

It is not giving the veto power to any other agency head. That is

my concern.

Mr. SANDERS. As a practical matter, though, given that we would

exercise this authority through the regulatory process, it would be

subject to interagency clearance. Any law enforcement agency

would be able to say, wait a minute, we tried to convince OPM of

this as part of our discussions, but at the end of the day we are

raising formal objection to this, and that matter would be addressed by OMB.

Ms. DAVIS OF VIRGINIA. Just understand, my real concern is for

all of our law enforcement officers and that they should be called

that if that is in fact what they are doing, that they be treated fairly and equally, especially when they are alive as well as when they

are dead. That just is something that just sticks with me, that they

are considered law enforcement officers on the memorial, but not

when they are alive. I have trouble with that.

Mr. Davis.

Mr. DAVIS OF ILLINOIS. I have just one question. Would I be correct in assessing your testimony to suggest that in looking at retirement policy, that there might be more consideration of the requirements that are needed to do the job from even a physical capacity as opposed to lumping some people in where they are able

to perhaps retire at too early an age?

Mr. SANDERS. I think that being able to address that is one of

the centerpieces of our recommendations. What has become clear is

that while today the current situation literally provides for an all

or nothing proposition. You either meet the full primary duty test

to investigate, apprehend or detain, or you do not. What has beVerDate 11-MAY-2000 09:18 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 D:\DOCS\98745.TXT HGOVREF1 PsN: HGOVREF1
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come clear is that there are gradations. There are emerging law enforcement occupations, responsibilities, duties, missions that fall

somewhere in between and that are not addressed. There are many

who have frontline homeland security responsibilities that even

with those responsibilities do not meet the primary duty test.

On the other hand, is there a need for a ‘‘young and vigorous’’

work force, ‘‘to perform the missions that those agencies are now

responsible for?’’ That is a question for the agency heads. If the answer is yes, and there are some gradations, that is precisely why

we think we need the administrative authority, as unprecedented

as it may be, to try to tailor the levels of benefits to reflect those

gradations.

Let me just say that when we suggest a second tier of benefits

as an option, and it is an option, there are others, we by no means,

let me say this as emphatically as I can, we by no means suggest

that they are second-class citizens. What we do mean is that there

are differences in duties and responsibilities. Some will meet the

full LEO test as a primary duty and others who do not, but whose

jobs are just as important.

Mr. DAVIS OF ILLINOIS. Thank you very much, Madam Chairwoman. I have no further questions. I would note, though, I was

just thinking about my experiences as a member of the Chicago

City Council. We had law enforcement authority, and I could imagine some of my colleagues responding in terms of when they would

be able to retire, of whether the requirements for running would

be the same as those who do the job.

Thank you very much.

Ms. DAVIS OF VIRGINIA. Depending on their length of office, that

may determine their retirement.

Mr. Van Hollen.

Mr. VAN HOLLEN. Thank you, Madam Chairwoman. I have no

further questions.

Ms. DAVIS OF VIRGINIA. Thank you, Mr. Van Hollen.

Mr. Sanders, thank you so much for being with us today. I appreciate all the comments and answers to our questions. If we have

others, we will submit them to you in writing.

I would like to now invite our second panel of witnesses to please

come forward. I will remind you we have already sworn you in.

First, we are going to hear from Ms. Colleen Kelley, national president of the National Treasury Employees Union. Then we will hear

from Mr. Frederick Bragg. Mr. Bragg is the president of the Federal Bureau of Investigation Agents Association. And then we will

hear from Mr. Louis Cannon, president of the D.C. State Lodge and

chairman of the National Fraternal Order of Police, Federal Officers Committee. Finally, we will hear from Mr. T.J. Bonner, who

is president of the National Border Patrol Council.

Thank you all for joining us today and thank you for your patience. As soon as we get you situated and your names in front of

you, so I will know who you are, we will begin first with Ms.

Kelley. Ms. Kelley, it is always a pleasure to have you here before

this committee. As you know, for all of you we will have your written statements for the record. If you would summarize, we will recognize you for 5 minutes.

26

STATEMENTS OF COLLEEN KELLEY, NATIONAL PRESIDENT,

NATIONAL TREASURY EMPLOYEES UNION; FREDERICK

BRAGG, PRESIDENT, FEDERAL BUREAU OF INVESTIGATION

AGENTS ASSOCIATION; LOU CANNON, PRESIDENT, D.C.

STATE LODGE, CHAIRMAN, NATIONAL FOP FEDERAL OFFICERS ASSOCIATION; AND T.J. BONNER, PRESIDENT, NATIONAL BORDER CONTROL COUNCIL

Ms. KELLEY. Thank you very much, Chairwoman Davis, Ranking

Member Davis and members of the subcommittee. I appreciate the

opportunity to testify on the recent release of OPM’s report to Congress on law enforcement officer retirement benefits, classification

and pay.

As the OPM report identified, the dramatic challenges that face

the Federal law enforcement community in the wake of the September 11 attacks and the war on terrorism have noted the issue

of Federal LEO status to the forefront of Federal employee pay and

benefit issues. The OPM report recommends that Congress give

OPM the authority to establish and administer a new governmentwide framework for all three components: retirement benefits, classification and basic pay, and premium pay.

While NTEU would agree with the report’s assessment that presently there is considerable and sometimes confusing differences

that exist among law enforcement personnel, NTEU has serious

concerns regarding the report’s recommendation to provide OPM

with broad authority to create and maintain a governmentwide

LEO retirement and pay system.

As the committee is aware, NTEU and representatives from the

three largest Department of Homeland Security employee unions

are currently meeting with management representatives of DHS

and OPM concerning the new DHS human resources management

system, as part of the statutory meet and confer process. It is unfortunate that the proposed pay, performance and classification

regulations that are being discussed are basically a set of generalized concepts that lack the detail necessary for us to gauge the potential impact on employees in DHS.

The OPM report would expand these concepts in place of statutory rights to Federal law enforcement employees governmentwide.

NTEU strongly believes that if the Federal law enforcement retirement program is to be modified, it needs to be done by statute. As

OPM has just confirmed, there is nowhere in the Federal Government where retirement benefits are set by regulation, as opposed

to statute, including DHS and DOD, neither of which have flexibility over retirement systems in their proposed regulations.

Federal LEOs need to be able to rely on retirement rules. Few

things are more important for recruitment and retention. The ability to alter LEO retirement by regulation could lead to a patchwork

of ever-changing regulations if each administration could simply

alter the Federal LEO retirement system by regulatory FIAT.

In the Bureau of Customs and Border Protection of DHS, LEO

retirement should cover CBP officers and Canine Enforcement officers. Their responsibilities have always involved protecting our borders, interdicting drugs and facilitating lawful trade. They have

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try, as well as the risks that come with these added job responsibilities.

NTEU strongly believes that CBP officers should receive the

same 20-year retirement benefits as those enjoyed by other Federal

law enforcement personnel. The OPM report notes the possibility

of establishing a second-tier of LEO retirement benefits. While

NTEU could have an interest in exploring this concept, leaving

such a determination to OPM and the Department of Justice is unacceptable.

The report also indicates that the 20-year retirement rule would

be less generous under this proposal, and that also is unacceptable.

The OPM report also recommends providing OPM the authority

to devise a new pay system for Federal LEOs. NTEU does not believe that a pay-banding system as proposed in the DHS personnel

regulations, as well as the OPM report, should be expanded to

other Federal law enforcement agencies.

The basic structure of the existing system is sound. No information has ever been produced to show that the new pay-band system

will enhance the efficiency of the Department’s operations in general or as it relates to law enforcement personnel.

The report also recommends that Congress give OPM regulatory

authority to establish a framework of premium payrolls that would

apply to all Federal law enforcement employees in consultation

with employing agencies. While some Federal agencies have been

given the authority to establish their own premium payrolls, such

as FAA and TSA, others are covered by special law enforcement

premium pay provisions such as the Customs Officer Pay Reform

Act, or COPRA. COPRA was created in 1994 to ensure that overtime pay to Customs inspectors bore a more relationship to hours

worked and to compensate inspection personnel for living with unpredictability and constant irregularity in their work schedules.

In fact, COPRA will now be used as the exclusive overtime and

premium pay system for all CBP officers and agriculture specialists

in CBP in the Department of Homeland Security starting July 25,

2004. So the issue of disparate premium pay systems is not an

issue within CBP anymore.

NTEU also believes that premium pay should continue to be

creditable as basic pay for retirement, as is established under

COPRA for CBP officers and for Federal LEOs governmentwide. In

addition, NTEU continues to believe that premium payrolls should

be codified in law and not established under administrative authority. CBP officers at DHS deserve the same 20-year retirement benefits as those enjoyed by other Federal law enforcement personnel.

We look forward to working closely with Congress to ensure that

any changes to LEO pay and benefits are statutory and are fair to

Federal law enforcement personnel.

Thank you.

[The prepared statement of Ms. Kelley follows:]

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Ms. DAVIS OF VIRGINIA. Thank you, Ms. Kelley.

Mr. Bragg. You guys got out of order there. I will have to figure

out who you are. Mr. Bragg, you are recognized for 5 minutes.

Mr. BRAGG. Chairwoman Davis, Ranking Member Davis and

members of the subcommittee, thank you for the opportunity to appear before the subcommittee to testify about the urgent crisis in

the pay and personnel system among Federal law enforcement,

particularly within the Federal Bureau of Investigation.

My name is Fred Bragg. I am a special agent with the FBI and

the President of the FBI Agents Association. The FBIAA is a nongovernmental professional association with a membership of nearly

9,000 current and more than 2,000 retired agents nationwide. I am

testifying today on behalf of the FBIAA and not as an official representative of the FBI.

Let me begin by offering special thanks to Chairwoman Davis,

Ranking Member Davis and especially the committee staff for your

hard work and leadership in support of this legislation to address

problems associated with law enforcement compensation. Madam

Chairwoman and members of the subcommittee, the recently released report from OPM acknowledges and confirms several important conclusions about deficiencies in the current pay and personnel system. However, its policy recommendations fall far short of

the decisive legislative action that is needed to address current

problems before they undermine the ability of Federal law enforcement agencies to fully protect the public.

Legislative proposals such as H.R. 1676 that can address the real

problem facing Federal law enforcement, have been introduced and

enjoy widespread bipartisan support. We hope that the subcommittee finds itself in a position to take immediate action to address

these critical Federal law enforcement issues.

The OPM report is clear about three main points: the general inadequacy of the GS system; the existence of problems in high-cost

cities; and the need to address pay compression. Although the

FBIAA is encouraged by the report’s conclusions regarding the status quo, we are not encouraged by the policy recommendations in

the report. The FBIAA does not believe Congress should defer unilaterally to OPM on this critical issue of national importance.

The FBIAA is particularly concerned about several aspects of

this report. First, enhancing OPM authority. The new report calls

on Congress to grant OPM virtually unfettered authority to determine everything from salaries, covered employees, pay ranges, and

governing principles to performance systems. For example, consider

the following.

How should the retirement system be reformed? The report

states, ‘‘We recommend that OPM be given the authority to necessarily modernize law enforcement officer’s retirement benefits.’’

How should classification and basic pay issues be addressed? The

report states, ‘‘OPM should be given the authority to establish a

flexible basic pay framework for Federal law enforcement employees through the government.’’ What changes can be made to solve

problems associated with premium pay and premium pay caps?

The report unsurprisingly recommends that, ‘‘Congress give OPM

regulatory authority to establish a framework of premium pay

38

rules that would apply to Federal law enforcement employees

throughout the government.’’

The only clear result of following the report’s recommendations

would be that OPM would be given an unlimited amount of time

and discretion to design a new compensation system.

Second, using the DHS personnel system as a model. The only

meaningful details of how the new OPM-created system might

function can be found in the report’s endorsement of the DHS personnel system approach. And yet the DHS system was not designed

specifically for law enforcement; does not have an actual track

record to demonstrate its efficiency; and is taking years to develop

and implement.

Third, the failure to address cost-of-living issues. The OPM report concedes that the compensation system is harming Federal

law enforcement officers living and working in high-cost cities. Despite the flaws in the pay comparison process and the fact that inadequate compensation is undermining retention and morale issues

in cities such as New York and San Francisco, the OPM report offers no meaningful recommendations to address this problem. OPM

recognizes that there may be no comparable local law enforcement

work, however the report dismisses legislation that would allow for

consideration of cost-of-living issues, as opposed to making pay

comparisons.

The FBIAA represents agents who deserve to have the real cost

of living considered, rather than having their compensation determined by inappropriate comparison to police officers. The FBI

agents have special skills, advanced education and have no control

over where they are assigned to live and work. The time has come

for Congress to legislate specific, concrete and guaranteed changes

to locality pay in high-cost areas in order to address problems that

even OPM admits exist.

Finally, flawed methodology. In addition to the substantive problems we have found in OPM’s recommendations, I also believe that

there are significant methodological flaws related to this report. My

written testimony highlights the details of these deficiencies.

In conclusion, the FBIAA understands that the recent OPM report is simply one step on the road toward real reform of the Federal law enforcement officers’ compensation system, and the report

makes some valuable conclusions about the deficiency of the status

quo. However, the report offers no meaningful recommendation and

very little comfort to FBI agents and other Federal law enforcement officers who are struggling to make ends meet while serving

our country.

The FBI Agents Association will continue to work with Congress

and agencies such as OPM to create a workable and efficient compensation system for Federal law enforcement officers.

I would like to end with a statement from one FBI agent assigned to the New York city office in response to an FBIAA survey

about the cost-of-living issues, ‘‘I joined the Bureau to save the

world and be part of the best law enforcement agency in the world.

Now, I am just trying to save my family and provide for their future. I continue my career with the Bureau because I still feel a

sense of duty and obligation and to my country in pursuing justice.

My morale level is negative one. The local and State police agencies

39

make considerably more money with better benefits and incentives

than the FBI. The situation is continually growing worse and will

ultimately cause irreparable harm to the Bureau, the Federal Government, and ultimately the United States of America.’’

Thank you for the opportunity to testify. I look forward to answering your questions.

[The prepared statement of Mr. Bragg follows:]

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Ms. DAVIS OF VIRGINIA. Thank you very much, Mr. Bragg.

Mr. Cannon.

Mr. CANNON. Good morning, Madam Chairwoman, Ranking

Member Davis and distinguished members of the subcommittee. It

is a pleasure to appear before you to discuss the issue of Federal

law enforcement pay and benefits.

When I appeared before the subcommittee last July, we argued

that reform of the law enforcement officer retirement system would

improve the recruitment and retention efforts of law enforcement

agencies throughout the Federal Government, ensure equity among

the various law enforcement and police occupations, and permanently end the confusion regarding which requirements qualify law

enforcement employees for law enforcement status.

Because of the critical nature of these issues, the FOP was

pleased to support the Federal Law Enforcement Pay and Benefits

Parity Act introduced by you, Madam Chairwoman, and Senator

George Voinovich. As you know, the legislation directed OPM to report to Congress by 30 April on the disparities in law enforcement

classification, pay and benefits across the Federal Government, and

provide the recommendations for addressing them. While we are

still reviewing the findings and recommendations of the report

which was released this past Friday, I would like to discuss our

view on a number of key issues regarding reform of the law enforcement retirement system.

First, if the goal is to eliminate disparities in the LEO retirement

system, how can Congress ensure that granting the authority they

seek to tailor the program to agency-specific needs will not in fact

create new authorities or increase existing ones? For example, if

OPM was able to grant a specific agency the authority to offer enhanced retirement benefits to meet an urgent staffing crisis, what

safeguards would be needed to ensure that it did not result on a

drain on the personnel of other agencies who were not given the

authority? Is it advisable to detach what is a guaranteed benefit for

all Federal employees from statutory law, and in essence allow

each agency to have its own retirement program for law enforcement officers?

Eliminating the existing disparities in the LEO retirement system would seem to require at a minimum a basic statutory framework under which all Federal law enforcement personnel are included and provided with a fixed benefit.

Second, if the primary purpose of the LEO retirement system is

to enable agencies to maintain young and vigorous work forces, and

as OPM acknowledged, it has been successful in this regard, what

problems have been caused for those agencies which provide this

benefit to their employees by the current requirements for retirement?

Regardless of the physical rigors which may be required in an

average work week, law enforcement officers are still required to

place their lives on the line each and every day to protect U.S. officials, their fellow employees and the visitors to their facilities. The

uniqueness of their work means that such factors as age and physical ability are extremely relevant to an employee’s continued ability to perform their assigned duties.

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Finally, if the definition of law enforcement officer is inflexible

and does not allow agencies to easily expand LEO retirement coverage to their employees, how should the statutory definition be revised to better reflect the hazards and requirements of the modernday law enforcement mission?

A first step in any reform effort is to amend the definition of

what constitutes a law enforcement officer under the law. As OPM

has noted, the current definition of a law enforcement officer has

not kept pace with the evolution of the Federal law enforcement

work force. It imposes and out-of-date black and white concept for

law enforcement in criminal investigation on a broad continuum of

law enforcement duties for the present day.

In its report to Congress, OPM has also recommended that it be

given the regulatory authority to establish a flexible basic and premium pay framework for Federal law enforcement employees

throughout the government. We agree with OPM’s assertion that

the general schedule system does not fully value the work performed by Federal law enforcement personnel and that a separate

pay and classification system may be necessary for these occupations. Likewise, we believe that all law enforcement employees can

be accommodated under a framework that provides for general consistency among law enforcement agencies, recognizes the fluctuations in different labor markets around the country, and which will

prevent the type of talent drain which was evident in 2002 with

the creation of TSA and the increased staffing requirements of the

Federal air marshal program.

However, given OPM’s request for basic and premium pay and

classification-setting authority, similar to that provided to DHS, it

is important to look at those issues which were raised by the release of the proposed DHS human resources management system.

Our written testimony goes into greater detail regarding our views

on the DHS system. However, I would like to point out that the

FOP does not believe that DHS and OPM have successfully taken

into consideration the unique and distinctive work performed by

the Department’s law enforcement employees in drafting the proposed rule with regard to a pay-for-performance system. The FOP

is primarily concerned with whether and how such a system would

be applied to law enforcement employees of the Department. Obviously, basing annual pay raises and pay adjustments on such factors as seizures made, number of arrests or other factors relating

to the performances of the employee’s official duties, would create

a culture that weakens the Homeland Security mission.

Therefore, it would seem to be unwise to implement such a system for law enforcement employees at DHS or elsewhere without

first ascertaining whether a system is feasible or appropriate for

the law enforcement profession. In the end, the question is not

whether OPM should be provided with the authority to set a classification, pay and retirement structure specifically tailored for Federal law enforcement personnel, but with the eventual breadth and

scope of that authority.

Further, despite OPM’s assertion that ensuring consistency does

not require policies that are set in the concrete of statute, the FOP

believes that there are many areas in which consistency can only

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tem coverage, the level of flexibility provided to individual agencies,

long-term policies to improve recruitment and retention of personnel across the board, and many others will require congressional

involvement and oversight.

In conclusion, Madam Chairwoman, let me say again that we appreciate your proven commitment to America’s Federal, State and

local law enforcement officers. The FOP looks forward to working

with you and the other members of the subcommittee on this critically important issue.

I would be pleased to answer any questions.

[The prepared statement of Mr. Cannon follows:]

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Ms. DAVIS OF VIRGINIA. Thank you, Mr. Cannon.

Mr. Bonner, you are recognized for 5 minutes.

Mr. BONNER. Thank you, Chairwoman Davis, Ranking Member

Davis. On behalf of the approximately 60,000 Federal law enforcement officers represented by the American Federation of Government Employees in a wide variety of law enforcement occupations,

we are pleased to have the opportunity to present our views concerning Federal law enforcement pay and benefits.

Without question, dedicated law enforcement officers are our Nation’s most valuable resource in the fight against crime and terrorism. It is therefore imperative that their pay and benefit systems

be capable of attracting and retaining the best and brightest employees.

This matter has been a perennial concern for Congress, which

has ordered numerous studies on various related topics. Most recently, the Federal Law Enforcement Pay and Benefits Parity Act

of 2003 required the Office of Personnel Management to submit a

report to Congress that included, ‘‘a comparison of classifications,

pay and benefits among law enforcement officers across the Federal

Government and recommendations for ensuring to the maximum

extent practicable the elimination of disparities in classifications,

pay and benefits for law enforcement officers throughout the Federal Government.’’

Although this report was due on April 30, 2004, it was not released to the public until July 26, 2004, last Friday. The only specific recommendation made in the report was a call for Congress

to cede its responsibility to administer and oversee the pay and

benefits of law enforcement officers to OPM, which would exercise

this new broad regulatory authority in consultation with the employing agencies and with the concurrence of the Attorney General.

The fact that OPM fails to outline any role for the affected employees and their representatives in the development of these systems is indicative of its arrogant belief that it is capable of independently developing systems that will be accepted by frontline

Federal law enforcement officers. OPM’s recommendation is strongly opposed by AFGE. Congress is much more sensitive to the will

of the people than the executive branch, and should retain this

power, especially with respect to such an important group of civil

servants.

The fact that over 30 different sections of the OPM report raise

concerns about the costs of funding, pay and benefits reforms

makes it abundantly clear that OPM’s primary concern is protecting the public coffers, not protecting the public from crime and terrorism.

Undoubtedly, this short-sighted approach will ultimately prove

extremely costly in terms of both dollars and lives. The cost of a

single large-scale terrorist attack would far exceed all of the expenditures necessary to transform the current pay and benefits systems into ones that are fair, equitable and capable of attracting

and retaining dedicated and outstanding law enforcement officers.

In essence, OPM’s recommendation has the effect of declaring the

new personnel system at the Department of Homeland Security a

total success, even though it has yet to be implemented. This wildly

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whelming majority of employees, as well as practical experience.

During town hall meetings last year with DHS employees, the prevailing sentiment was that the current general schedule pay system, with some relatively minor modifications, would be far preferable to an untested pay-for-performance scheme.

Similarly during the recent public comment period concerning

the proposed new DHS personnel regulations, almost all of the

3,800 comments expressed grave concerns about the proposed new

pay system. Moreover, every single pay-for-performance experiment

that has been conducted in the Federal sector that has not been accompanied by substantial funding increases has failed miserably.

Placed into the existing general schedule pay system, such significant funding increases would remedy most of its problems by enabling managers to exercise the many flexibilities that already exist

in that system.

Although OPM’s report fails to make specific recommendations

concerning the means to eliminate disparities in classifications, pay

and benefits for Federal law enforcement officers, it does contain

a lengthy discussion of such matters and includes several possible

options. Due to the extremely short response period, AFGE is unable to generate an exhaustive analysis or rebuttal of those points

at this time. Rather, it will issue an independent report in the near

future that contains specific recommendations to deal with the

problems identified by Congress.

The report will also respond in detail to the options surfaced by

OPM. The recommendations in AFGE’s report will adhere to the

general principles of fairness and equity. Their adoption would result in systems that are credible and acceptable to employees. In

the final analysis, the ultimate test of any pay and benefit system

is its ability to attract and retain high-quality employees.

The following overview highlights some of the issues that will be

covered in AFGE’s report: expand the definition of Federal law enforcement officer to include all Federal police officers, guards, inspectors and other similarly situated employees; expand full law

enforcement retirement benefits to all Federal law enforcement officers who meet the expanded law enforcement officer definition;

leave the mandatory retirement age at 57; implement incentives for

retirement-eligible employees to continue working; enhance and expand geographic pay; retain the current general schedule pay system and fund the ample flexibilities therein; abandon the notion of

pay-for-performance for Federal law enforcement officers, which

will only serve to de-motivate these otherwise highly motivated employees; retain different overtime systems for different types of

overtime work; expand Fair Labor Standards Act coverage to all

Federal law enforcement officers; eliminate overtime earnings limitations; standardize night, Sunday and holiday differentials to

more generous levels; repeal the pay flexibilities granted to the Departments of Homeland Security and Defense; and finally, expand

collective bargaining rights and civil service protections to all Federal law enforcement officers.

In sum, AFGE agrees that there are numerous inequities within

the current pay and benefits systems, but strongly disagrees with

OPM’s recommendation that Congress cede its authority to set and

administer the pay and benefits of Federal law enforcement offiVerDate 11-MAY-2000 09:18 Jun 01, 2005 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6633 D:\DOCS\98745.TXT HGOVREF1 PsN: HGOVREF1
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cers. These roles properly belong to Congress, which is in a far better position to make decisions that are driven primarily by the public interest.

Public safety is the single most important function that a government performs. Allowing it to become subservient to fiscal considerations would set the stage for further national tragedies.

Thank you. I would be happy to answer any questions.

[The prepared statement of Mr. Bonner follows:]

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Ms. DAVIS OF VIRGINIA. Thank you, Mr. Bonner.

Mr. Bragg, as a supporter, and by the way, no decisions have

been made yet on that report from OPM, so we have not decided

to do what they have suggested. This is a very complicated, although to me it seems simple, but when you try to get something

passed, it is not simple. So I have found out in the last couple of

years on the Hill.

Mr. Bragg, I have a question for you. As a supporter of Representative Rogers’ bill, H.R. 1676, that we have talked about in

the past, a bill which excludes availability pay for Federal criminal

investigators from the limitation of premium pay, among other

things, what is your reaction to OPM’s report critical of such legislation? I am sorry for the short time you had to read the report,

but we did not have but 1 day more than you did.

Mr. BRAGG. I believe that their concern, I mean, they do not deny

that there is a problem, but they are concerned about the pay inversion and how it will affect the SES. I can speak for the FBI

Agents Association, the membership. There are approximately

12,000 of those assigned to GS and maybe 200 in the SES category.

I think they can work it out. They can find something to marry the

two systems together to where there is not an inverted effect on the

system.

Ms. DAVIS OF VIRGINIA. You all know we have several bills in

this committee, and rather than do things piecemeal, we are trying

to come up with something that would stop this problem from here

on out, so that people would be treated fairly.

With that said, you all heard the testimony from Mr. Sanders of

OPM. As of right now, LEOs must complete 20 years of LEO service to qualify for higher benefits. Any of you can answer this.

Would you be in favor of changing the retirement system to allow

higher benefits for each year of LEO service, even if that total did

not reach 20? Anybody want to jump in?

Mr. CANNON. I will jump into the pond and start the ripples

going.

Ms. DAVIS OF VIRGINIA. All right.

Mr. CANNON. First of all, I think you are going to have to determine what LEO service is. That is going to be the big problem right

there. Earlier you talked about people doing similar jobs. I can give

you a specific example right now. At the Vice President’s mansion

located at the Naval Observatory, you have two uniformed forces

that protect that facility: the U.S. Secret Service Uniform Division

and the Department of Navy Police. Well, the U.S. Secret Service

Uniform Division enjoys the pay and benefits of law enforcement

officers. The Department of Navy personnel who do the identical

job standing side by side with them do not. They start at significant lower pay and do not have the LEO retirement. So are they

LEOs?

So we are going to have to define first of all what a LEO is. I

think anything to give creditable service for LEO service would be

a step in the right direction. First of all, are the guys wearing uniforms, carrying guns, inspecting the cars, protecting the Vice President, but their patch says Department of Navy Police, any less of

a law enforcement officer than the U.S. Secret Service who they are

working exactly alongside with?

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Ms. KELLEY. NTEU believes that the current 20-year retirement

and pay systems should not be diluted for anyone who is currently

under the system. The need to define who is treated as a Federal

law enforcement officer referred to them, and they are referred to

every day at LEOs. They are referred to when you talk about their

duties and when they are talked about in the newspapers. They are

just not treated that way for pay and benefits.

So first and foremost, we believe that there should be no dilution

of the current benefits for those who are covered. From there, the

conversation about how to redefine appropriately who should be

covered and what that coverage should be, we are open to discussion. We really have had no real proposal suggested to us.

Ms. DAVIS OF VIRGINIA. Are you open to a two-tier system that

they talked about?

Ms. KELLEY. I would like to know what it is they have in mind.

We are open to the discussion and we have told them this even in

Homeland Security, but then there were never any specifics forthcoming. So we would be willing to talk about it as long as the existing tier does not suffer as a result, that should be maintained.

Ms. DAVIS OF VIRGINIA. Anybody else want to jump in the mix

here? Then I want you to add to it. Do you think that agencies

should be allowed to hire someone who is over the age of, I am

probably treading into water I should not tread into here, over the

age of 37, but still make them subject to mandatory retirement at

57? You know, those old decrepid people they talked about.

Mr. BONNER. Let me answer your first question first, which was

creditable service for less than 20 years. I assume you are talking

about a transition for people who are added into the mix. Clearly,

there is a way to solve the problem. They have done this before

when they initiated that system way back when. They grandfathered people so that people were able to get their full retirement. I am not sure exactly how they did it, but it is not an insolvable problem.

I am sorry. I forgot your second question.

Ms. DAVIS OF VIRGINIA. Yes, you just do not want to answer it.

Do you think agencies should be allowed to hire people after age

37, and still mandate retirement at 57?

Mr. BONNER. No, I do not. I think there is a very good reason

that they have the age limit in place, notwithstanding the

actuarials that show that people are living longer. I think that is

due to the wonders of medicine. I would disagree with Mr. Sanders

when he says that 50-year-olds are in better shape today than they

were 50 years ago. Because of our sedentary lifestyle and because

of air pollution and other factors, I think that the physical condition has probably deteriorated somewhat.

Ms. DAVIS OF VIRGINIA. Being over 50, I disagree with you.

[Laughter.]

Mr. BONNER. I am over 50 myself. I will tell you, I do not relish

the thought of wrestling on the ground with a 23-year-old who is

in excellent physical shape. That is the danger of allowing people

to go much beyond the mandatory age of 57. I think that there are

ways to encourage people to stay beyond 50. Many State jurisdictions increase the percentage that people earn past that eligibility

age, which is a great incentive for them to stick around. They also

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raise the percentage of salary that they can get as part of their annuity.

We are currently capped at 80 percent. So someone in my situation who is eligible to retire right now, I am actually working for

pennies on the dollar. When I show up to work, instead of making

$20-some-odd an hour, when you factor it against the fact that I

would be making a substantial portion of that were I retired, there

is not much of an incentive for people to work beyond their eligibility point. We have to change that if we truly value that experience and want to hang onto that experience.

Ms. DAVIS OF VIRGINIA. Happy birthday.

Mr. CANNON. And looking forward to 57 and being able to retire.

Maybe I will do something meaningful with my life like run for

Congress after that.

One of the things that should be looked at is anything can have

exemptions. At a meeting one time, there was a detective who had

been a detective in a municipal agency up north for quite some

time. He had been working on his college degree. Unfortunately, he

did not obtain his college degree until he was 39. He stood up and

he said, one of the things that had been his goal was to get his degree and become an FBI agent. Well, because he had not gotten his

degree until he was 39, he is not eligible to be hired, because he

came from the municipal sector and not a Federal sector.

So there are any number of things that could be explored. If he

has law enforcement experience, credible law enforcement experience that can be converted from a municipal sector into Federal

service, might that not be a valuable asset for an investigative

agency to get an experienced investigator, albeit he is 2 years past

his minimum age, and then either build something on the end of

it where he could finish off his career either in another analytical

portion of the FBI or whatever, but while he could serve law enforcement during those peak years.

So I think there are a number of things that could be explored

there.

Ms. DAVIS OF VIRGINIA. I think you can see we have a difference

of opinion even on the panel here.

I am going to yield to Mr. Davis and then we will have another

round of questions.

Mr. DAVIS OF ILLINOIS. Thank you very much, Madam Chairwoman.

It seems to me that I detected sort of a flavor running through

the panel that you all have some difficulty with OPM having the

authority to handle this assignment on its own. Could you tell me

why? Do you feel that they do not have the capability to do it, or

are restricted? What is the reason?

Ms. KELLEY. For my part, it is two issues. One is that everything

that is described in the authority they would have is about concepts. Based on our experience to date with DHS and OPM on the

flexibilities they do have, after all this time we are still hearing

from them concepts with no specificity as to what they will do. I

expect that in the end what they do do may be a surprise to us.

We will really have had no opportunity for meaningful input that

could impact what final decisions would be.

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But probably a larger issue for us is that as each administration

changes, as each OPM Director changes, so could the rules about

LEO. These are things that we believe are so critical, not only to

employees, but to the agencies to accomplishing their missions,

that they should be in statute and be so determined, recognizing

that can be a very long and burdensome process, but figuring out

how to streamline that, how to get the right answers and get it in

the statute so that it is something employees can depend on and

not be at the whim of a new administration or a new director

throughout their career.

That is the main issue for NTEU.

Mr. DAVIS OF ILLINOIS. Mr. Cannon.

Mr. CANNON. I commend you on your choice of words, Mr. Davis,

the flavor, because what I think we do not want is Baskin-Robbins,

where we have 31 flavors and we get 31 different interpretations.

It needs to be codified somewhere so that you have a model that

you can go back to. I think that is part of the problem now, is that

they have different interpretations and the implementation is so diverse.

Mr. BONNER. The fundamental problem that AFGE has with it

is that the executive branch is not directly accountable to the people. I do not know about your ballot, but I have never been able

to vote for the Director of OPM. I can vote for Members of Congress. I think Congress is therefore much more responsive to the

concerns of the people.

Mr. BRAGG. Mr. Davis, I believe that most of the reasons why we

are concerned have been echoed already in this room. However, the

lack of definition of flexibility, throwing around the word ‘‘parameters.’’ We believe that the decisions should lie right here in the

legislature; that the policies should come from Congress. I have

some problems with OPM’s report on a couple of different levels,

but for instance a specific example, a reference in their appendix

to quit rates. They specifically talk about the quit rates of 18–11s.

However, the quit rates for 18–11 GS–10’s are lacking.

Now, FBI agents start at a GS–10. They remain there for 2

years, which means we probably have a pretty good chunk of people that are at the GS–10 level right now. They were not in the

report. They went from seven, eight, nine to eleven, twelve. They

skipped that whole category of GS–10’s. We are concerned about

that and what they are basing their answers on.

Mr. DAVIS OF ILLINOIS. Would a more precise definition of law

enforcement officer be helpful? And where should that definition

come from? Ms. Kelley.

Ms. KELLEY. I think the definition does need to be revised. I

think it needs to be in the statute, not in the regulations and not

a definition that can be changed every 6 months or every year or

every 2 years. It needs to be in statute.

Recognizing that, my concerns about OPM’s authority are in

light of the fact that we have been trying to work through Congress

for 15 years to secure law enforcement officer recognition status for

legacy Customs inspectors and canine enforcement officers. Even

with that, I still would like to see the fix and the appropriate words

and definitions be addressed by Congress so that it is fixed and it

is something employees can count on.

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Mr. CANNON. I echo Ms. Kelley’s sentiments there. Quite frankly,

if it walks like a duck, it talks like a duck, and it quacks, it should

be a duck, if they are out there doing law enforcement work. As

in the situation I just explained, you have two agencies working

side by side; one has; one has not. They are doing identical jobs.

Why is one not and the other is?

Your average officer such as where I work at the U.S. Mint, we

do essentially the same job as protecting facilities, personnel, the

Director of the Mint, we have her protection. But we do not enjoy

the same benefits and pay as the Capitol Police. Why is that?

Mr. BONNER. I agree that the definition needs to be expanded

and I think that is the proper role of Congress.

Mr. BRAGG. The Chairwoman said it most succinctly earlier. It

is such a simple thing that if you go on the wall, you are law enforcement, but it appears that within the Beltway, the definition of

law enforcement officer is a long and drawn-out process. However,

as the other members here have said, the perception of if you are

law enforcement is very simple. If you have a uniform, you have

a gun, you are exercising the authority to make arrests to protect

people, to protect property, you are law enforcement. Again, it is

a simple thing.

Mr. DAVIS OF ILLINOIS. Thank you very much. I guess, Mr. Cannon, they may have thought that since you all were protecting

money and the Capitol Police were protecting the Members, that

may have given a different definition. [Laughter.]

Thank you, Madam Chairwoman.

Ms. DAVIS OF VIRGINIA. Actually, Mr. Bragg, the one question I

had, you just answered. I wanted you all to give me a definition

of what is a law enforcement officer, because it seems awful simple

to me as to what one is, and that is what you just said.

I have some constituents sitting in the back that I spoke to a

couple of weeks ago, I guess, that in their description to me of what

they do, they sound like a law enforcement officer, but they are

not. Now I find out in the prisons, the cooks are. So I do not understand why we have a problem here. Then again, I have not been

here as long as Mr. Davis has. I have not worked on this issue as

long as he has. And I certainly did not know you have been trying

to do something, Colleen, for 15 years, which is very frustrating to

me. To me, it should be very simple. My guess is it is a question

of dollars, which I would assume that is the problem. It is usually

the problem around here.

To me, if you are law enforcement, and Mr. Cannon you stole my

line I used at the last hearing. If it walks like a duck and quacks

like a duck, it must be a duck. You guys all walk and quack like

ducks, so I guess you are all ducks.

I do not understand why we have a problem. We certainly are

going to take a look at it. As you can tell already, it is not going

to be an easy issue. It is something that I wish, Mr. Bragg, as you

said, it needs to fixed immediately. I tend to agree with you. But

immediate and Congress tends to be several sessions of Congress,

so I cannot promise you that the subcommittee will even get anything out real quick that we can get heard from the full committee

and get to the House floor.

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But you do have my word that as long as I am sitting here, we

will do all we can to try and fix and correct the problem so that

law enforcement officers are treated like law enforcement officers.

But first, we have to find out what the definition is of a law enforcement officer.

Mr. Davis, do you any other questions?

Mr. DAVIS OF ILLINOIS. Other than to suggest that regulatory action oftentimes does not take as long, and would you be willing to

run the risk in terms of the time differential in order to get a legislative fix as opposed to an administrative or regulatory one.

Thank you very much, Madam Chairwoman.

Ms. DAVIS OF VIRGINIA. Mr. Bragg.

Mr. BRAGG. I think we should get it right the first time. I would

say legislative is the way to go.

Ms. DAVIS OF VIRGINIA. Even if it takes longer.

Mr. BRAGG. The 6-month OPM report took 7 or 8 months.

Ms. DAVIS OF VIRGINIA. Yes, it did.

Mr. BRAGG. So I think that the timeline——

Ms. DAVIS OF VIRGINIA. And I cannot say that I am happy with

that either, or even what it came out to say.

Does anyone else have any other comments before we close?

Well, I will say that we may end up having some more questions

that we would submit to you in writing, in which case we would

ask that you would get the answers back to us for the record.

Again, we appreciate your all being here and just know that we do

know the problem and we are going to try and fix it.

With that, the subcommittee stands adjourned.

[Whereupon, at 11:40 p.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]

[Additional information submitted for the hearing record follows:]

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