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H.R. 5600, THE DISTRICT OF COLUMBIA COURT,

OFFENDER SUPERVISION, PAROLE, AND PUBLIC

DEFENDER EMPLOYEES EQUITY ACT OF 2008

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

POSTAL SERVICE, AND THE DISTRICT

OF COLUMBIA

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

ON

H.R. 5600

TO PERMIT NONJUDICIAL EMPLOYEES OF THE DISTRICT OF COLUMBIA

COURTS, EMPLOYEES TRANSFERRED TO THE PRETRAIL SERVICES,

PAROLE, ADULT PROBATION, AND OFFENDER SUPERVISION TRUSTEE,

AND EMPLOYEES OF THE DISTRICT OF COLUMBIA PUBLIC DEFENDER

SERVICE TO HAVE PERIODS OF SERVICE PERFORMED PRIOR TO THE

ENACTMENT OF THE BALANCED BUDGET ACT OF 1997 INCLUDED AS

PART OF THE YEARS OF SERVIVCE USED TO DETERMINE THE TIME

AT WHICH SUCH EMPLOYEES ARE ELIGIBLE TO RETIRE UNDER

CHAPTER 84 OF TITLE 5, UNITED STATES CODE, AND FOR OTHER

PURPOSES

JULY 15, 2008

Serial No. 110–145

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

(

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

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

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

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

JACKIE SPEIER, California

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

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

COLUMBIA

DANNY K. DAVIS, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JOHN P. SARBANES, Maryland

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio, Chairman

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

KENNY MARCHANT, Texas

JOHN M. MCHUGH, NEW YORK

JOHN L. MICA, Florida

DARRELL E. ISSA, California

JIM JORDAN, Ohio

TANIA SHAND, Staff Director

(III)

C O N T E N T S

Page

Hearing held on July 15, 2008 ............................................................................... 1

Text of H.R. 5600 ..................................................................................................... 19

Statement of:

Kichak, Nancy H., Associate Director for Strategic Human Resources

Policy, U.S. Office of Personnel Management ............................................ 35

Wicks, Anne B., executive officer, District of Columbia courts, accompanied by Kathy Holiday Crawford, probation officer, Social Services

Division, District of Columbia Family Court; Paul A. Quander, Jr.,

director, Court Services and Offender Supervision Agency of the District of Columbia; and Avis E. Buchanan, director, Public Defender

Service for the District of Columbia ............................................................ 53

Buchanan, Avis E. ..................................................................................... 66

Crawford, Kathy Holiday .......................................................................... 73

Quander, Paul A., Jr. ................................................................................ 63

Wicks, Anne B. .......................................................................................... 53

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

Buchanan, Avis E., director, Public Defender Service for the District

of Columbia, prepared statement of ............................................................ 68

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Marfyland, prepared statement of ........................................................... 31

Davis, Hon. Danny K., a Representative in Congress from the State

of Illinois:

Prepared statement of ............................................................................... 15

Various prepared statements ................................................................... 2

Kichak, Nancy H., Associate Director for Strategic Human Resources

Policy, U.S. Office of Personnel Management, prepared statement of ..... 37

Marcant, Hon. Kenny, a Representative in Congress from the State of

Texas, prepared statement of ....................................................................... 25

Quander, Paul A., Jr., director, Court Services and Offender Supervision

Agency of the District of Columbia, prepared statement of ...................... 64

Wicks, Anne B., executive officer, District of Columbia courts, prepared

statement of ................................................................................................... 55

(1)

H.R. 5600, THE DISTRICT OF COLUMBIA

COURT, OFFENDER SUPERVISION, PAROLE,

AND PUBLIC DEFENDER EMPLOYEES EQUITY ACT OF 2008

TUESDAY, JULY 15, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL

SERVICE, AND THE DISTRICT OF COLUMBIA,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:39 p.m., in room

2154, Rayburn House Office Building, Hon. Danny K. Davis (chairman of the subcommittee) presiding.

Present: Representatives Davis, Norton, Cummings, and

Marchant.

Staff present: William Miles, professional staff member; and

Marcus A. Williams, clerk/press secretary.

Mr. DAVIS. We are going to move into our hearing on the District

of Columbia Court, Offender Supervision, Parole, and Public Defender Employees Equity Act of 2008. The subcommittee will now

come to order.

Welcome, Ranking Member Marchant, members of the subcommittee, hearing witnesses and all those in attendance, to the

Subcommittee on the Federal Workforce, Postal Service, and District of Columbia’s hearing entitled, ‘‘H.R. 5600, the District of Columbia Court, Offender Supervision, Parole, and Public Defender

Employees Equity Act of 2008.’’

Hearing no objection, the Chair will ask unanimous consent to

allow the testimonies of the following individuals: William L.

Askew, Patrice Irick, Thomas T. Abraham, Kevin Brannon, Rodney

C. Corbin, Shawn Edward Dickerson, Ricardo Green, Diana Miles,

Linda Suzanne Rupard, Ardina Yvette Van, April Davis, Alicia

Holder, Deborah Ward, Neville Campbell-Adams and George

Hughson to be added to the record.

Hearing no objection, so ordered.

The Chair, ranking member and subcommittee members will

each have 5 minutes to make opening statements, and all Members

will have 3 days to submit statements for the record.

Hearing no objection, so ordered.

[The information referred to follows:]

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Mr. DAVIS. I will read a brief opening statement.

Today, the subcommittee is holding a hearing to examine H.R.

5600, the District of Columbia Court, Offender Supervision, Parole,

and Public Defender Employees Equity Act of 2008. The bill, which

was introduced by Representative Eleanor Holmes Norton on

March 12, 2008, would permit former D.C. government and independent agency employees to count the years of service they performed prior to 1997 toward their Federal creditable service which

determines an individual’s eligibility for retirement.

Passage of the National Capital Revitalization and Self-Government Improvement Act of 1997 brought about a transfer of several

of the District’s criminal justice functions to the Federal Government, which has adversely impacted hundreds of employees who

lost their prior service time. These employees were forced to shift

their source of employment as a result of the enactment of the 1997

Revitalization Act. People who for years performed functions and

duties under the D.C. government banner found themselves seeking employment opportunities to do almost the same jobs, but on

the Federal level.

Although many of the individuals were fortunate enough to secure employment with newly created Federal entities and are to become considered as Federal employees for the purpose of pay in

benefits, none of these individuals were allowed to have their previous years of work included in the calculation of their creditable

service which is used to determine an employee’s eligibility for retirement under the Federal Employees Retirement Service.

What we are witnessing today are dozens of employees who

would normally be ready for retirement being forced to work additional years, sometimes an entire decade, because of an inability to

incorporate their previous years of related service. H.R. 5600 seeks

to remedy this problem by allowing the service these Federal workers performed prior to 1997 to count as creditable service for the

purpose of determining an employee’s eligibility for retirement only

and not an employee’s annuity amount.

I understand that the bill may need some fine tuning to ensure

that all affected persons and agencies are covered, and I anticipate

that those issues will be addressed in some of the testimony being

presented today.

The support that this bill has received from groups like the

American Federation of Government Employees and the hundreds

of employees affected highlights the importance of quickly moving

this legislation toward enactment.

I thank Congresswoman Norton and Ranking Member Tom

Davis for all the hard work they have put in on this issue over the

past several years, and I also want to thank today’s witnesses for

participating in this afternoon’s hearing.

I would now like to yield to Ranking Member Marchant for any

opening comments that he would have.

[The prepared statement of Hon. Danny K. Davis and the text

of H.R. 5600 follow:]

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Mr. MARCHANT. Thank you, Mr. Chairman. As I understand it,

House H.R. 5600 introduced by Congresswoman Norton and Congressman Tom Davis would restore retirement credit that certain

employees lost when non-judicial employees became Federal employees as the Federal Government assumed the D.C. court function in 1997.

The context of the 1997 National Capital Revitalization and SelfGovernment Improvement Act is important. At the time, the city

was beginning to recover from a spending and management crisis

of epic proportion. Congressman Davis, who was then chairman of

the District of Columbia Subcommittee, is to be commended for

working in a truly bipartisan way with Delegate Eleanor Holmes

Norton to address this crisis.

In 1997, with patience and perseverance, the Control Board created by Congress in 1995 was having its intended effect; much

needed discipline was instilled into the budget process. The city’s

return to the private financial market was solid evidence that Congress did produce more creditable numbers and better performance.

The success of the Control Board made revitalization possible in

1997. The enactment included a fundamental restructuring of the

relationship between the Federal Government and the Nation’s

Capital. Part of this massive restructuring included subtitle (c),

criminal justice area. Also included in that was the Federal assumption of the costs associated with the District of Columbia

courts, around $136 million in 1998. The Federal assumption of

funding responsibility for the court system included probation, public defender services and pretrial services, which became a Federal

agency.

The courts continue to be self-managed. The D.C. parole, probation and pretrial services were operated by a Federal trustee until

they met the Federal standards to become a Federal agency. As a

consequence of that, there was a loss of creditable service by former

D.C. employees.

The legislation before us will rectify this by providing that service before the transfer of authority would count toward an overall

Federal retirement eligibility as creditable service; the Public Defender was shifted in 1998, so they would get credit for any service

prior to that; and included employees still entitled to D.C. and retirement benefits would be prohibited from double-dipping.

I appreciate the opportunity to have this hearing today and learn

more about this issue.

Mr. Chairman, thank you.

[The prepared statement of Hon. Kenny Marchant follows:]

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Mr. DAVIS. Thank you very much, Mr. Marchant.

Let me ask if any other Members have opening comments.

Ms. Norton.

Ms. NORTON. Mr. Chairman, since this issue arose, I have put in

a bill every year when Representative Davis was the Chair of the

committee. He cosponsored it with me, and I am grateful that he

has continued to cosponsor it now as ranking member.

Mr. Chairman, I have to say that not since I have been in Congress have I seen a technical oversight that has done such an accumulated injustice to a group of Americans. Nothing is more valuable to people than working your whole life and then deciding

when to retire upon the time that is generally prescribed. Time

cannot be recaptured. Whatever we do here, the failure to correct

this error immediately will leave a terrible mark on the Congress.

As I shall indicate, there was no intent when we passed the Revitalization Act to punish or penalize any employee. In fact, the employees generally did not oppose the act, in no small part because

of our guarantee that the act was designed to remove certain costs

from the District of Columbia, State costs that no city bears, and

that nobody was going to be hurt.

We did not keep our word, and if we were going to break our

word, we certainly chose the worst of the benefits to do so because

there are employees, now Federal employees, who will never be

made whole, for no reason except the Congress did not act promptly.

You have outlined very clearly, Mr. Chairman—and I will not repeat—what this bill does. I will only say that these employees are

only asking for the time they have already accumulated. They are

asking for time they accumulated before the Revitalization Act was

passed in 1997 and not one thing more.

They lost this time without any notice when the error was made,

and they lost their so-called ‘‘creditable service.’’ They became

FERS employees—and the definition of ‘‘creditable service’’ there is

somewhat different—and all it took was aligning these employees

with the Federal employees they had become. It was the only decent thing to do.

I certainly don’t blame this on the Republican minority that

worked so closely with me on the Revitalization Act. Everybody

worked together on that bill with the President of the United

States, and yet this is, by far, its major flaw.

I just ask you, Mr. Chairman, suppose you were 60 years old at

the time of the act and you had been an employee for 20 years

working for the people of the District of Columbia. Does anyone

think that you deserve to work 13 more years in order to retire?

Can that case possibly be decently made by anyone?

Mr. Chairman, it has been very painful to see time accumulate,

because it is like a ticking bomb. It is time; it is gone.

And I knew for a while that the Federal Government was not

going to do anything to compensate these employees for having lost

some of that time. For one thing, it would be difficult to figure out

when people wanted to retire given the ADEA, the Age Discrimination Employment Act. If I may say so, if I myself had been in private practice, what would have occurred to me would have been to

bring a suit under the Age Discrimination and Employment Act,

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which in fact covers the Federal Government, because under that

act you can work as long as you please. You cannot be made to retire. In fact, the whole point was to remove the government from

the decision to retire; and I continue to believe there has been a

violation by the Federal Government of the ADEA.

What makes it particularly painful is that the bill has been at

pains to eliminate the possibility of double-dipping.

Nor have these employees asked to be credited with funds from

the Federal Government during the period before they serve—only

the time served. They have the annuity from the District Government. They are not asking for anything from us that they do not

deserve; they are asking for their time.

If we want to add insult to injury, we can argue that the Federal

Government incurs some financial liability here.

Now, if you really want to build on the nonremedial aspect, you

might want to argue that, well, we are going to lose something in

the Federal Government. That is palpable nonsense, Mr. Chairman. The argument might be made on the basis, well, the Federal

Government is paying out this money—its share of the money, understand—at an earlier moment than it might have wished to.

Mr. Chairman, nobody knows when people are going to retire.

The government doesn’t know for 1 second when Federal employees

will pick up their marbles and go home, and that is one of the reasons we are having such a problem in retaining Federal employees.

They don’t have the slightest idea. Once they reach the point of

early retirement, they can say, Bye-bye, Federal Government, I am

going to take this marvelous training, I am going to go work for

a contractor, I am going to go home and sit; now just give me my

money.

Under the ADEA, they can stay here until they are as old as Methuselah; and you don’t know when they are going to retire and

you had better not ask them. So any claim that somehow you are

calling on Federal money before you are supposed to assumes that

there was a time you were supposed to.

If anything, the Federal Government ought to be here with an

apology rather than any resistance to this bill. It makes me mad

and I am not even involved. I would hate to be somebody who was

supposed to retire any time during this interval and be told, you

just sit tight as long as we say so. Or worse, sit tight for X number

of years; you will be the only Federal employees who are so required. And that is why I say it is a violation of the ADEA.

The least we can do, Mr. Chairman, is to do what I hope we will

do here today. Hear everyone out, rapidly pass this bill before this

session, which is due to end somewhat earlier than usual, do so

with an apology to these employees, and try never to repeat this

kind of error again.

I do want to note for the record that anyone who argues that

there was any intent to, in fact, deprive these employees of their

service needs to cite the record from the Revitalization Act to this

committee. Because I will cite to them exactly the opposite in the

act and in its report.

We have made a promise to these employees. We need this transfer. We know you are nervous. Not to worry. This is the sacred

promise of the Federal Government of the United States; and we

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then proceeded to break it. Let’s try to make these employees as

whole as we can, for they shall never be whole, but as whole as

we can by not depriving them of another minute of service time to

which they are entitled.

And I thank you, Mr. Chairman.

Mr. DAVIS. Thank you very much, Ms. Norton. Thank you very

much.

Mr. Cummings.

Mr. CUMMINGS. Mr. Chairman, I just want to associate myself

with the words of the distinguished representative from the District of Columbia.

You know, Mr. Chairman, I often say that we have one life to

live and this is no dress rehearsal; this is that life. When people

have worked hard and have given their blood, their sweat, and

their tears to make it possible for others to live the best life that

they can, they should not be deprived of that which is due them.

We are not doing them any big favor, just giving them what they

have earned.

And so, I am excited about this legislation and I just hope that

we can get it pushed over the line as fast as we possibly can so

that these folks can get what they have earned.

And with that Mr. Chairman. I yield back.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Mr. DAVIS. Thank you very much, Mr. Cummings.

And I would ask unanimous consent that Members would have

3 legislative days in which to revise and extend their remarks.

Hearing no objection, so ordered.

And we now would move to our witnesses.

Our first witness will be Ms. Nancy Kichak. She was named Associate Director for the Human Resources Policy Division of the Office of Personnel Management [OPM], in September 2005. Ms.

Kichak leads the design, development and implementation of innovative, flexible and merit-based human resource policies; and we

are delighted to have her here to testify, as she does so regularly

with us, from the Office of Personnel Management.

If you would stand, it is the tradition of this committee that witnesses be sworn in.

[Witness sworn.]

Mr. DAVIS. The record will show that the witness answered in

the affirmative.

Ms. Kichak, if you would, summarize for us in 5 minutes your

written statement, which will be in the record. We get down to the

lights, that they are now working. The yellow light is an indication

that there is a minute in which to wrap up.

Thank you so very much. We appreciate your being here. Please

proceed.

STATEMENT OF NANCY H. KICHAK, ASSOCIATE DIRECTOR

FOR STRATEGIC HUMAN RESOURCES POLICY, U.S. OFFICE

OF PERSONNEL MANAGEMENT

Ms. KICHAK. Good afternoon, Mr. Chairman, Ranking Member

Marchant, and members of the subcommittee. I appreciate the opportunity to be here today to discuss the proposed bill, H.R. 5600.

The National Capital Revitalization and Self-Government Improvement Act of 1997, as amended, which was part of the Balanced Budget Act of 1997, stipulated the four groups of civil service

servants have their future retirement coverage covered by the Federal Employees Retirement Systems [FERS]. The four employee

groups were as follows: nonjudicial employees of the District of Columbia of Columbia courts; employees whose functions were transferred to the pretrial services, parole, adult supervision, and offender supervision trustee; employees of the Public Defender Service hired before enactment of the District of Columbia Courts and

Justice Technical Corrections Act of 1998; and individuals appointed under the priority consideration program of the Bureau of

Prisons.

Prior to placement in the first system, these employees were covered by a defined contribution retirement plan similar in nature

and benefit level to the Thrift Savings Plan. Upon the bill’s enactment, these employees retained their defined contribution plan

benefits from the District of Columbia, and those who did not have

sufficient time for vesting under the D.C. defined contribution retirement plan were permitted to count their subsequent service so

as to achieve vesting, ensuring that no benefits were lost due to

this legislation. Instead, employee benefits were increased by providing coverage under a defined benefit plan based on years of

service while continuing participation in a defined contribution

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plan and coverage under Social Security. Also, health benefits were

now provided that continue into retirement.

Under FERS, individuals are eligible to retire with a minimum

of 5 years of FERS-covered service as age 62 without a reduction

to their annuities. An individual with at least 10 years of FERS

covered service may retire at the minimum retirement age with a

slight reduction. The minimum retirement age is between ages 55

and 57, depending upon the individual’s date of birth.

As it has been 11 years since passage of Public Law 105–33, the

individuals covered by H.R. 5600 will be eligible to take advantage

of the first provision for those with 10 years of service, once they

reach their minimum retirement age, and will be eligible to retire

without a reduction upon reaching age 62. H.R. 5600 will not modify the computational structure applicable to their employment

under FERS, nor will it make their prior service creditable toward

the computation of FERS benefits. However, it will permit that

service to be creditable solely for the purpose of eligibility for annuity so that affected individuals will be permitted to retire at the

time that they would have been eligible had all of their service

been performed under a single system.

These provisions increase costs to the retirement fund through

the early provision of benefits and thus the loss of employee-employer contributions equal to 12 percent of salary. The proposed

legislation makes no provision for funding these costs.

A number of the individuals covered by this bill are currently

employed in positions as law enforcement officers. As drafted, H.R.

5600 would not make the prior District service creditable toward

early retirement as a law enforcement officer because the proposed

bill does not define this service as creditable under the law enforcement officer provisions.

If law enforcement credit were granted, costs for these employees

would be significantly higher due to the more generous benefit

structure and the loss of employer and employee contributions at

a rate of 26.2 percent of pay. Full cost funding is an important

principle of the first system, and we believe the provisions of H.R.

5600 should be in compliance with this principle.

In conclusion, we have policy and financial concerns with aspects

of this proposal, and accordingly, we cannot support it.

Thank you for inviting me here to testify today. I would be glad

to answer any questions.

Mr. DAVIS. Thank you very much, Ms. Kichak.

[The prepared statement of Ms. Kichak follows:]

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Mr. DAVIS. I am going to yield to the ranking member, Mr.

Marchant, to begin the questioning.

Mr. MARCHANT. Thank you.

How does this bill prevent double-dipping by any of the employees that are still entitled to their D.C. retirement benefits?

Ms. KICHAK. Well, the bill does not include their service in the

first calculation. It only allows that service to be creditable to make

them eligible. So they will not be paid twice or accrue a computation for the service; however, they will be able to start receiving

their annuity earlier.

Mr. MARCHANT. I think you probably answered this question in

your testimony.

The legislation is not revenue neutral.

Ms. KICHAK. That is correct.

Mr. MARCHANT. Has there been a computation made as to the

cost to implement that would compensate and make it a neutral

transaction for FERS?

Ms. KICHAK. Right now, the bill does not permit service to be

computed the way it is drafted for law enforcement officer coverage. We think it was intent that is an unintended consequence,

because we know a lot of these people are law enforcement officers.

So we have done two computations.

Roughly speaking, and as was pointed out earlier, when you do

these computations you have to assume, on average, when people

will retire. Based on patterns of retirement for each law enforcement person covered, the increase in cost under this bill is roughly

$50,000—roughly; and for employees not in law enforcement, about

$2,500 per person.

Mr. MARCHANT. OK. So the $50,000 is per person?

Ms. KICHAK. For a law enforcement officer. They retire earlier,

so they would start receiving their benefit earlier. They have a

higher benefit computation in recognition of the fact that they have

a shorter career.

And we lose revenue because, had they worked under the first

system, there would have been contributions into the fund by both

them, at a higher rate of pay, and their employer.

Mr. MARCHANT. Is there some precedent in the FERS system

where any other instances like this have ever taken place?

Ms. KICHAK. We cannot identify any other similar instance.

Mr. MARCHANT. So is the bill drafted to where it does not set a

precedent for——

Ms. KICHAK. We think that the bill would set precedent.

Mr. MARCHANT. OK. So your concern is that it sets precedent.

And you have the——

Ms. KICHAK. And has a cost.

Mr. MARCHANT. And it has a cost. And the cost has to be defrayed in some way?

Ms. KICHAK. Yes.

Mr. MARCHANT. I think those are my questions, Madam Chair.

Ms. NORTON [presiding]. Thank you, Ms. Kichak, for your testimony.

Quoting from your testimony, page 3, ‘‘While they will receive,’’

these employees—it is the next to last paragraph—‘‘benefits under

FERS proportionate to their FERS-covered service, they will have

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to wait somewhat longer to be eligible for those benefits than if

their service had been performed under a single plan.’’

I ask you to cite the authority in the legislative record for that

statement. In other words, I am asking you, since this was an entirely new bill that had to be written out of whole cloth. You have

given us an interpretation, therefore, without citing any authority

for the interpretation that I have just indicated. That rather much

summarizes your testimony.

Ms. KICHAK. OK. I don’t have the specific cite under Title 5 with

me, but it very clearly says that their service will be counted from

the day they became covered under FERS. And we could point to

that——

Ms. NORTON. Well, obviously that service will be counted from

the time they were covered under FERS.

Ms. KICHAK. Right.

Ms. NORTON. This hearing goes to whether or not their service

before being covered by FERS is to be given any credit.

Are you testifying that it was the intent of the Congress of the

United States to deprive these employees of years of service they

would have received had they remained subject to the authority of

the District of Columbia? Is that your testimony here this morning?

Ms. KICHAK. No. My testimony is that the law, as it is currently

written, gives credit only for the time they have served under the

FERS system.

Ms. NORTON. Oh, you will have to supply for the record, if you

would, what you are basing that on. If you are to cite a single sentence without looking at the entire bill is to invite us to ignore your

testimony.

There was a great deal of testimony about what we were doing.

The ranking member, Mr. Davis, was there; I was there every step

of the way. I submit to you that the Congress was very clear that

bringing these employees into the Federal sector would be without

prejudice.

And I ask you to tell me whether or not, if we transferred Federal employees to another sector, we could possibly have done so

without informing them of any losses. Are you therefore saying

that these employees lost time and the Congress intended them to

lose their service before their eligibility for retirement, before they

were transferred to the Federal Government?

You are saying that was the intent of Congress?

Ms. KICHAK. I am not. I am not speaking about the intent of

Congress. We administer the law as it is written in Title 5 today,

and that is what we are basing it on.

Ms. NORTON. I suggest to you, Ms. Kichak, that you are citing

a sentence from the law without looking at the entire record. I ask

you to do this committee the service of looking at that record, if you

would.

In any case, as I indicated, the record would include the statements, the promise of the Congress that it did not and would not

deprive people of their eligibility for retirement.

Now, the notion that somehow or the other we intended that and

that these employees would sit on their rights, is not only

unpersuasive, it is incredible. And it is even worse to suggest that

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the Congress of the United States would, in fact, deprive people of

their retirement time without, in fact, so informing them.

Now, I could accept your testimony if you said, we made a mistake. But you have testified here that is what Congress intended,

and you have done so without citing to me the entire record, including the parts of the record which indicated we intended to deprive these employees of nothing. So as long as you are going to

cite a single sentence, it does seem to me you have to back that

up with what it is Congress said in its fullness.

You concede that what happened with the law enforcement officers does not reflect what Congress intended, do you not?

Ms. KICHAK. What I meant to say was, I don’t think that is what

was meant by the folks that have drafted this bill. But I would

need the changes in the legislation to verify that you wanted those

changes made.

Ms. NORTON. Now, I read with interest the part of your testimony—this sentence: ‘‘If law enforcement credit was granted’’—and

I want to know if you would apply this to others as well. ‘‘If law

enforcement credit was granted, costs for these employees would be

significantly higher due to the more liberal benefits structure and

the loss of employer and employee contributions at the higher

rate.’’ And you cited 26.2 percent.

Ms. KICHAK. Right.

Ms. NORTON. Is that your testimony with respect to the other

employees?

Ms. KICHAK. For the other employees who are under the regular

system, the loss of income is 12 percent in pension funding.

Ms. NORTON. Now, you may have heard my opening statement.

I can understand the law enforcement at least a little better, because law enforcement retires earlier.

I would like to know the basis for your—what is it, 12 percent?

Mr. KICHAK. Twelve percent.

Ms. NORTON. Twelve percent. Would cost the FERS 12 percent?

Ms. KICHAK. Yes.

Ms. NORTON. I would like to know the basis for that statement.

Ms. KICHAK. Twelve percent is what is called the ‘‘normal cost’’

of the retirement system, and under FERS today——

Ms. NORTON. What do you know about the normal cost of these

D.C. employees?

Now, they were in the FERS system. Did you ask what was the

normal cost or normal retirement age when they were in the D.C.

system, where they would have accumulated whatever expectation

they would have had?

Ms. KICHAK. In the D.C. system, as a defined contribution plan,

they could have, once they were vested, resigned at any time and

taken their money out in an annuity or whatever, very similar to

what you can do today under the Thrift Savings Plan. So they were

at——

Ms. NORTON. And you are aware that the D.C. bill is a carryover

from no Home Rule, so that this bill rather much reflects the

thinking that the Congress put in effect at that time. Go ahead.

Ms. KICHAK. Well, my background, before I came to the job I currently have, was as the Chief Actuary at OPM. And ‘‘normal cost’’

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is a technical actuarial term based upon the future benefits, based

on the average rates of decrement of folks in a system.

So the 12 percent normal cost is, indeed, based on averages, and

it is based on the experience, and continually reviewed and updated of the—well, it is not 1.8 million in FERS, but of all of the

hundreds of thousands of people in the FERS system. And under

pension funding, FERS pension funding today, for every employee

covered by FERS 12 percent is supposed to be contributed from the

entry on duty until retirement; and the loss for giving folks credit

toward retirement and not making that funding would cause an

unfunded liability in the FERS system.

Ms. NORTON. Now, where in the record can you cite congressional

concern that bringing these employees over would put a burden on

the FERS system if, in fact, they came over with their time accumulated in the District?

Cite me to that part of the record.

Ms. KICHAK. The record there would be in the establishment of

the FERS system, which was designed to be a fully funded system

back when it was established.

Ms. NORTON. Would you explain why these employees are coming

over to the FERS system in the first place?

Ms. KICHAK. Because the law stipulated that they would.

Ms. NORTON. Well, they are coming over in the FERS system.

What about the D.C. system?

They came from a system like that in the District of Columbia;

is that not true?

Ms. KICHAK. They came from a system in the District of Columbia whose service did not count toward their pension under FERS.

Ms. NORTON. No, that is your conclusion, please. That is what

you have concluded.

I am asking, first of all, would all these employees come under

the FERS system, the employees that are at issue here?

Ms. KICHAK. We believed that most of them would be, and that

is how we analyzed that.

We have recently become aware in other statements we have

seen, that some of these would be under CSRS offset; but we believe that most of them would be under FERS. And the data that

we were provided by the district court was for folks that would be

under FERS.

Ms. NORTON. And you concluded that they would be under FERS

for what reason? Because they were under a FERS-type system in

the District of Columbia?

Ms. KICHAK. No. Because they entered into our system and became covered under FERS after FERS was established.

FERS became the system——

Ms. NORTON. Wait a minute. FERS, our employees are no longer

covered by FERS. Is that right?

Ms. KICHAK. Our employees are covered by FERS today.

Ms. NORTON. Excuse me. The opposite.

Ms. KICHAK. Right.

Ms. NORTON. These employees are now entering a FERS system.

Ms. KICHAK. Correct. Which has been the system——

Ms. NORTON. What kind of system were they in before?

Ms. KICHAK. They were in a defined contribution plan.

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Ms. NORTON. Isn’t that the point, Ms. Kichak? That they entered

the District government and offered their service in a defined contribution plan?

Well, let me cite this example to you. The Federal Government

went from a defined benefit to a defined contribution. Did any Federal employee suffer when the Federal Government changed over

from one kind of plan to the other?

Ms. KICHAK. For folks hired——

Ms. NORTON. Was there any penalty to Federal employees when

the Federal Government decided to make that very switch that you

have just described?

Ms. KICHAK. No one who was covered by the Federal system,

CSRS, that was in place when FERS was established was penalized. They were in a CSRS system, and they were in a Civil Service

Retirement System and they stayed in a Civil Service Retirement

System.

Ms. NORTON. Thank you, Ms. Kichak. That is my point.

The District of Columbia employees were in a system like CSRS.

They come to the Federal Government. They do not ask for anything special except that they recognize they are coming into a system, a FERS system.

If your testimony is that Congress did not penalize any employees when they moved over from one retirement system to another,

how can you offer testimony today that the Congress would have

treated the District of Columbia employees, who are becoming Federal employees, any differently from what they treated the CSRS

employees whom they were at pains to make sure were not penalized, as you have testified here today?

Ms. KICHAK. The folks from the D.C. system were in a defined

contribution plan. Before enactment of this legislation, they did not

have access to a defined benefit plan. They were not in the same

system. They entered a new system.

Ms. NORTON. Aren’t some of the employees of the District of Columbia under that very system, the FERS system, a FERS-type

system?

Ms. KICHAK. The FERS system has three components. The FERS

system has the defined contribution plan, which is Thrift, it has Social Security, and it has a defined benefit plan.

The employees impacted by this legislation had only two of those

three. When they entered into the new system and became covered

under FERS, they had an enhancement in benefits. It was an enhancement in benefits.

Ms. NORTON. Well, it is hard—and no one is asking for more benefits, Ms. Kichak. We are talking about time, and not benefits.

They are not asking for a dime.

Now, your testimony about 12 percent I simply have to ask you

about. Yes, you can do the actuarial 12 percent, but is it not the

case that in point of fact that is the only way you have of doing

it because you don’t have a clue as to when people will retire?

Ms. KICHAK. For a large group, because——

Ms. NORTON. Excuse me, did you look at the District of Columbia

group or did you look at the Federal group? Did you compare the

District of Columbia group, and when they retired, with Federal

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employees, and when they are likely to retire? Or did you look at

FERS employees?

Ms. KICHAK. We looked at FERS employees. We don’t have

enough data for this specific group of people.

Ms. NORTON. You do have sufficient data. All you would have to

do is ask the District of Columbia for it.

You wouldn’t need it for these employees, but if you were trying

to make some kind of fair assessment, what you might want to do

is look at what their actuarial retirement age was in the District

of Columbia, or years they were in the District of Columbia; at

least make some kind of comparison that way, if that is what you

wanted to stand on and did not want to stand on equal treatment

with the way in which we treated CSRS people who came to FERS.

And that is the heart of the matter.

Congress has indicated its intent. Because Congress did not—

goodness, I am sorry, Mr. Chairman—because Congress did not penalize any Federal employee. And your testimony is here that although Congress did not penalize any Federal employee, it was

quick to take time from employees of the District of Columbia who

were in the exact situation of our own CSRS employees.

I submit to you, Ms. Kichak, unless you can supply some part of

the record to justify your assertions, I do not believe that we can

credit them here in this hearing.

I am going to give the chairman back his chair.

Mr. DAVIS [presiding]. Ms. Kichak, let me ask you, specifically related to law enforcement officers——

Ms. KICHAK. Yes.

Mr. DAVIS [continuing]. How do you separate them in terms of

some concerns expressed from the other groupings of employees?

Ms. KICHAK. First of all, in my testimony, when we reviewed the

legislation as it is drafted, and it talks about crediting service, it

does not cite the service for law enforcement officers. So that was

a point of information I would like you to understand.

But when we look at the activity of law enforcement officers,

when we do our actuarial analysis and when we manage the trust

funds, because they have different age and service requirements

and, therefore, their retirement patterns are different—they can retire at ages that normal people can’t—we look at the rates of retirement leaving the law enforcement service, etc., in our projections,

and we look specifically at the law enforcement officer community.

We didn’t look specifically at the District, but we looked at, I believe about 80,000 law enforcement officers in Federal service; and

that is how we determined the average experience that we used to

fund the system.

Mr. DAVIS. Wouldn’t you say that the law enforcement officers in

question relative to the District of Columbia, that they will find

themselves at some disadvantage anyway, just by virtue of having

been caught in the situation or the squeeze?

Ms. KICHAK. They would find themselves in the same situation

as somebody who joined the law enforcement community from another State, from a State government or from the private sector at

the age they entered the system. Those folks also would not have

credit under the FERS system. They would be treated like someVerDate 11-MAY-2000 11:38 May 07, 2009 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 U:\DOCS\48589.TXT KATIE PsN: KATIE
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body who entered the service from another entity that wasn’t Federal.

Mr. DAVIS. Can I ask you, even though you may not be in agreement with this particular legislation and all of the components of

it, does OPM see any way that this group of employees can, as one

might say, be made whole? Is there any way that they can end up

at the end of their careers feeling that they somehow or another

have not been cheated or disadvantaged?

Ms. KICHAK. Our concern in creating the precedent that was spoken about before is that there are other groups of folks who would

be interested in being able to get credit for service that they served

someplace else.

In fact, under the FERS legislation, one group that gets no credit

for Federal service are those people who worked for the Federal

Government, took their contributions out, and that doesn’t count

for them. So they don’t have a provision today where they can buy

back credit for that service. And I see those as similar, that if we

start allowing people to get credit for time that they didn’t contribute under FERS, then there are going to be challenges to funding

the system.

The system was carefully designed to try to make it fully funded.

And there are other people out there with the same concerns.

Mr. DAVIS. So it is sort of the Pandora’s box syndrome——

Ms. KICHAK. Yes.

Mr. DAVIS [continuing]. In a sense? And I have always been

amazed about how Pandora was looked at. And I have always said

to myself that if you are just afraid of opening up a box that ought

to be opened, then why not open it if the situation is required, if

there should be some redress?

I hear that a lot in terms of Pandora’s box, and you know, if one

group gets it, then somebody else wants to be considered. It would

just seem to me that as long as there is any form of inequity, or

as long as there is some denial of justice and as long as there is

some denial of due process or corrective action, then all of the Pandoras in the world will end up perhaps dying with some feeling

that somehow or another they were short-changed because they

happened to fall into a box.

And I understand the concept. It is not one that I agree with, but

I certainly understand it and certainly hear it used a great deal

that we are going to open up a can of worms. Well, if the can needs

to be opened, then the worm has as much of a right as, you know,

anything, anybody else. That is just my position, especially when

I ask myself the question about fairness.

I often ask, is it fair for birds to eat worms? The reality is, if you

asked the bird, you get one answer. Now, you turn around and ask

the worm and you get another answer. And I am sure that the people here don’t want to be viewed as worms. But it seems that they

are in that position.

So let me thank you very much.

Mr. Marchant, do you have any other questions?

Mr. MARCHANT. Just one question. The bill can be implemented

as drawn correctly, but with an appropriation attached to it?

Ms. KICHAK. An appropriation would solve the funding problem.

If the bill is implemented as drawn, our interpretation of this lanVerDate 11-MAY-2000 11:38 May 07, 2009 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 U:\DOCS\48589.TXT KATIE PsN: KATIE
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guage would not credit the service under these entities in the District of Columbia with credit toward law enforcement officer service.

Mr. MARCHANT. So in order for what Ranking Member Davis,

Delegate Norton, and the chairman want to do to accomplish——

Ms. KICHAK. Right.

Mr. MARCHANT [continuing]. The bill needs to be redrafted to be

specific, in your opinion, to specifically cover these things?

Ms. KICHAK. If that is what they want. And we would be glad

to provide technical assistance to show them where we think——

Mr. MARCHANT. And an appropriation attached to implement it.

Ms. KICHAK. We would recommend that should be done. There

should be an appropriation.

Mr. MARCHANT. And that is your position?

Ms. KICHAK. Yes.

Mr. MARCHANT. OK. Thank you.

Mr. DAVIS. Thank you very much, Ms. Kichak. We appreciate

your being here.

Ms. KICHAK. Thank you.

Mr. DAVIS. And as always, we thank you for your testimony.

Ms. KICHAK. Thank you.

Ms. NORTON. Mr. Chairman, could I have a followup question?

Mr. DAVIS. One. Yes.

Ms. NORTON. She testified—I am sorry, was your last testimony

about money Congress would have to add?

Ms. KICHAK. When an unfunded liability is created in the

pensions——

Ms. NORTON. You have a huge unfunded liability in every pension system, I know.

Ms. KICHAK. We don’t have one in the FERS system.

In the CSRS system there was one, which was one of the reasons

that Congress created the FERS system, to have a system that was

fully funded.

Ms. NORTON. Well, of course this is a unique situation, because

you are not starting at ground zero. You are bringing over people

and putting them in the FERS system and leaving them without

their time.

Ms. KICHAK. They retained their benefits that they had

when——

Ms. NORTON. Obviously, that would be a violation of due process.

Look, because with the law enforcement employees, given your

testimony, you really have struck a third rail there. I appreciate

your testimony about how we probably intended to include law enforcement authority and that the bill does not include law enforcement sufficiently. They, of course, still have an enhanced retirement.

But is it your testimony that a law enforcement officer who

would, I suppose, be entitled to retire in 20 years? And if that law

enforcement officer hadn’t made it, that law enforcement officer

simply has to do what every other employee who switched over,

simply continued to work until the 20-year in his case or her case

time is met?

Ms. KICHAK. Yes. They would have to continue to work to get 20.

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Ms. NORTON. Don’t you see how at odds that is with Federal policy? We don’t grant 20-year payouts to people, or enhanced benefits

to people, simply because we like our police officers. A policy decision has been made about the likely fitness of an officer after that

period of time.

You, administratively, now are requiring these officers, unless we

fix the bill, to serve beyond the period of time that Congress has

fixed for their service.

Yes, it is a benefit. Yes, there is good reason for them to, in fact,

want this benefit. But like every city that does it, this benefit is

not just a benefit, you have to have a policy reason for doing so.

In this case, the policy reason for doing so has to do with the same

reasons that we don’t draft people in the armed services beyond a

certain age.

I just want to say that for the record, Mr. Chairman, because I

think that the testimony that law enforcement officers have to also

serve this additional time affects not only the officers, but presumably the underlying mission that they happen to be serving.

I would like to ask you about your notion that this is a precedent

and that somehow we are opening up a concern about similarly situated employees. Can you cite for me any instance in the history

of our country where we have had the Federal Government to take

responsibility for a mission that was formally performed by a local

jurisdiction?

Ms. KICHAK. I don’t have an example, no.

Ms. NORTON. Well, I submit that it could not happen, because

only the District of Columbia is subject to the Home Rule jurisdiction and is subject to the ultimate jurisdiction of the Federal Government. And if there was some kind of transfer of funds from—

I don’t know, the city of Baltimore—some kind of transfer of jurisdiction that would interfere with the Federalist rights of Baltimore

itself—and I cite that because if you want to cite precedent, you

have to tell us how a Federal employee could then look to this

change from the one local jurisdiction that the Federal Government

constitutionally has any jurisdiction over as a precedent for what

the Federal employee would be demanding.

Ms. KICHAK. When I was speaking of precedent, I was speaking

of getting credit for service that is not covered under the FERS system.

Ms. NORTON. That is exactly what I am speaking of since these

people are not asking for money.

Ms. KICHAK. Well, I was talking about credit for those——

Ms. NORTON. I want to know whether you can cite a precedent

for that, or in the absence of a precedent, cite me a hypothetical.

I am a law professor. I will take a hypothetical of where you

think a Federal employee might validly cite this for wanting the

same or similar treatment.

Ms. KICHAK. I think people who have worked for the Federal

Government and taken their money out and lost their coverage

under FERS could say that if somebody that was transferred from

the District of Columbia into Federal service——

Ms. NORTON. Who took no payout. Who took no payout. Who took

no payout. These people are sitting on their money because the

Federal Government won’t let them go.

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I mean, if you want to cite me a precedent, you had better be

careful. These people have not taken payouts. Some are gone, with

less money. I wouldn’t call that the same kind of payout that Federal employees have taken.

I am sorry, Mr. Chairman, I just want to lay it on the record and

ask this witness one question.

I will accept your hypothetical and I will have to accept it as a

hypothetical because you have not cited me to the record where the

intent of Congress is noted. You cited me to one sentence in the

statute, and I can understand that.

But I would like to accept your notion for the moment and then

ask you: Let’s assume that you are right, that we either never intended it and that the record does not support my notion that we

intended it, given what has occurred, so that there are employees

now serving well beyond their retirement time; would you recommend to this committee that it take the appropriate action to

correct this anomaly?

Ms. KICHAK. I am not making that recommendation.

Ms. NORTON. So I would rather have that answer than the answer that you would let this anomaly remain in place, fall where

it may, and penalize hundreds of employees in the process.

So I am going to let you go without asking you to put that answer on the record. And thank you for your testimony.

Ms. KICHAK. Thank you.

Mr. DAVIS. Thank you very much, Ms. Kichak.

We will proceed to our second panel. And while we are establishing their presence, I will go ahead and introduce them.

Ms. Anne Wicks serves as the executive officer of the District of

Columbia courts. Prior to her appointment, Ms. Wicks was the

courts’ acting chief financial officer from 1999 to 2000; deputy executive officer for court operations, 1997 to 1999; and deputy director

for research and development, 1987 to 1999.

We also have Mr. Paul Quander, who is the first director of the

Court Services and Offender Supervision Agency [CSOSA]. He has

served in this capacity since 2002. CSOSA is responsible for supervising adults on probation, parole, and supervised release in the

District of Columbia.

We have, also, Ms. Avis Buchanan, who has served as the director of the District’s Public Defender Service for the past 3 years.

She holds a Juris Doctorate degree, and has worked as a staff attorney for the Equal Employment Opportunity Project of the Washington Lawyers Committee for Civil Rights and Urban Affairs.

Let me thank all three of you. And if you would stand and be

sworn in and raise your right hands.

[Witnesses sworn.]

Mr. DAVIS. The record will show that the witnesses answered in

the affirmative.

We will then proceed with our testimony, if you would summarize your written statement in 5 minutes.

The yellow light indicates that you are down to 1 minute; and

if you would then wrap up for us, the red light will indicate that

your time is up.

And we will begin with you, Ms. Wicks.

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STATEMENTS OF ANNE B. WICKS, EXECUTIVE OFFICER, DISTRICT OF COLUMBIA COURTS, ACCOMPANIED BY KATHY

HOLIDAY CRAWFORD, PROBATION OFFICER, SOCIAL SERVICES DIVISION, DISTRICT OF COLUMBIA FAMILY COURT;

PAUL A. QUANDER, JR., DIRECTOR, COURT SERVICES AND

OFFENDER SUPERVISION AGENCY OF THE DISTRICT OF COLUMBIA; AND AVIS E. BUCHANAN, DIRECTOR, PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA

STATEMENT OF ANNE B. WICKS

Ms. WICKS. Thank you.

Mr. Chairman, Congresswoman Norton, members of the subcommittee, I am Anne Wicks, executive officer of the District of Columbia courts. As executive officer, I am responsible for the administration of the courts, and the management of our 1,000 nonjudicial employees.

I am pleased to be here today to offer testimony on H.R. 5600.

Chief Judge Eric T. Washington of the D.C. Court of Appeals,

and Chair of the court’s policymaking body, the Joint Committee

on Judicial Administration, has taken time from his schedule to be

here, as well, in support of this legislation, which is of fundamental

importance to the courts.

Also here today is Kathy Holiday Crawford, a probation officer

with our Family Court Social Services Division.

As you are aware, law enforcement personnel are eligible to retire at age 50 with 20 years of service, and a mandatory retirement

age of 57. Ms. Crawford has been a probation officer with the

courts for 19 years. Because of the changes instituted with the

1997 D.C. Revitalization Act, Ms. Crawford will not be able to retire next year as she had anticipated, but must wait until 2017, at

which time she will be beyond the mandatory retirement age, and

will have served in a law enforcement position for over 28 years.

More than 250 of the D.C. courts’ employees lost up to 10 years

of government service, an unfair and unintended consequence of

the Revitalization Act. These individuals comprise 26 percent of

our work force. Discounting years of public service and work experience for such a huge segment of the courts’ work force has had

a significant negative impact on employee morale and employeemanagement relations.

Management has a responsibility to protect employee rights, pay

a living wage, and provide health and retirement benefits. Unfortunately, as a result of the Revitalization Act, many of the courts’

employees believe management has let them down.

H.R. 5600 would restore fairness to our retirement system and

improve the morale of our work force. Employees of the courts who

were hired prior to October 1, 1987 participated in the Civil Service

Retirement System. Court employees hired between October 1 of

1987 and October 11, 1997 participated in the District of Columbia’s retirement system. When the D.C. Revitalization Act was enacted, it provided that all court employees would be treated as Federal employees for the purposes of retirement. What the act did not

provide was credit toward retirement for the years of service for

those employees under the District’s retirement system, that is, all

employees hired by the D.C. courts between 1987 and 1997.

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Although these 250 employees had worked for the courts for up

to 10 years, and have continued through today to remain dedicated

court employees 11 years later, the Revitalization Act imposed on

them an artificial change in their employment status, resulting in

the loss of valuable time and credit toward retirement.

Consider how this works. An employee hired in September 1987

was under the Civil Service Retirement System, and today has

nearly 21 years of service when computing retirement eligibility.

An employee hired 1 month later, in October 1987, was under the

District’s retirement system, and today has only 11 years of service

toward retirement. The reality, of course, is that both employees

have worked for the D.C. courts for nearly 21 years.

The rationale for this decision, that the impacted employees participated in a different non-Federal retirement program, while logical, is neither practical nor fair. The fact is that up to 10 years

of government work is being ignored when determining eligibility

for retirement. The fact is that for these employees, their years of

service with the courts and their years of service to the people of

the District of Columbia are not being fully counted toward retirement.

We are not asking for these employees to be paid additional

money. They paid into a different retirement system and will be

entitled to their funds in that system when they retire. What we

are asking for is that all the years of D.C. court employment be

counted when retirement eligibility is calculated.

For an employee to have to work 6, 8, or 10 years more than

their coworkers to be eligible to retire, solely by coincidence of

when they are rehired, is patently unfair. To ignore years of an individual’s work as a government employee in the justice system is

particularly problematic for the courts. Imagine being responsible

for ensuring justice and fairness, day in and day out, when you believe an injustice has been done to you. And imagine being responsible for managing these employees.

The vision statement of the D.C. courts is Open to All, Trusted

by All, Justice for All. Our employees work each day to make those

words true for all who walk through the courthouse doors. You can

make them true for our employees as they approach retirement.

Thank you for your support on this important issue. Ms.

Crawford and I would be happy to answer any questions you may

have.

Mr. DAVIS. Thank you very much, Ms. Wicks.

[The prepared statement of Ms. Wicks follows:]

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Mr. DAVIS. We will proceed to Mr. Quander.

STATEMENT OF PAUL A QUANDER, JR.

Mr. QUANDER. Good afternoon, Chairman Davis and members of

the subcommittee.

H.R. 5600, the proposed District of Columbia Court, Offender Supervision, Parole, and Public Defender Employees Equity Act of

2008, would impact 106 employees of the Court Services and Offender Supervision Agency.

In both the Community Supervision Program, which provides

probation and post-trial release supervision, and the Pretrial Services Agency, which provides pretrial supervision, a substantial

number of employees remained with the agency and converted to

Federal status following passage of the D.C. Revitalization Act in

1997. These employees would be affected by the proposed legislation.

In the Community Supervision Program, a total of 52 employees,

or 5.6 percent of Community Supervision’s total work force, would

be affected. The majority of these staff are directly involved with

offender supervision and are classified as law enforcement employees. Twenty-three of them, or 44 percent, are community supervision officers. An additional 12, or 28 percent, are supervisors,

with one occupying a branch chief position. Five, or 10 percent,

work in our Offender Processing Unit; the remaining 12 employees,

28 percent, hold a variety of support positions.

In the Pretrial Services Agency, a total of 54 employees, or 15

percent of PSA’s total work force, would be affected. As with the

Community Supervision Program, the majority of these employees

are directly involved with supervision; 29, or 54 percent, are Pretrial Service Officers and, additionally, 11, or 20 percent, are supervisors.

Four employees, or 7 percent, work in the Forensic Toxicology

Laboratory. The remaining 10 employees, or 19 percent, hold various program management or support positions.

Thank you for the opportunity to appear before this subcommittee, and I will be happy to answer any additional questions that

you or members of the committee may have. Thank you.

Mr. DAVIS. Thank you very much, Mr. Quander.

[The prepared statement of Mr. Quander follows:]

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Mr. DAVIS. And we will go now to Ms. Buchanan.

STATEMENT OF AVIS E. BUCHANAN

Ms. BUCHANAN. Good afternoon, Chairman Davis, Congressman

Marchant and Congresswoman Norton. I am Avis Buchanan, Director of the Public Defender Service for the District of Columbia for

the last 4 years. Thank you for this invitation to testify before the

subcommittee today in support of H.R. 5600.

The Public Defender Service for the District of Columbia is a federally funded, independent organization governed by a 11-member

board of trustees. PDS is a federally funded entity as the result of

the passage of the Balanced Budget Act of 1997 which, among

other things, transferred fiscal responsibility for the District of Columbia’s court functions to the Federal Government.

As part of that transfer, the employees of the Public Defender

Service and other District of Columbia employees affiliated with

the city’s justice system became Federal employees solely for the

purpose of the applicability of several employee benefits provisions

in Title 5 of the United States Code. One of these benefits, participation in the Federal Retirement System, is the subject of H.R.

5600.

PDS supports H.R. 5600, as it will eliminate an inequity for certain current and former PDS employees and certain District of Columbia court employees related to their retirement eligibility. My

comments focus on former and current PDS employees; however,

the courts’ employees’ circumstances are analogous.

PDS employees participated in the Civil Service Retirement System until October 1, 1987, when the District of Columbia reorganized its personnel functions and practices. In addition, the Federal

Employees Retirement System [FERS], was created that same

year. From October 1, 1987, on, newly hired PDS employees were

deemed ineligible to enroll in CSRS or FERS. After the District created the District of Columbia Defined Contribution Plan, PDS employees were permitted to participate in that program.

In 1999, the Balanced Budget Act and the technical corrections

thereto ended PDS employees’ participation in the District’s plan

and made FERS available to all PDS employees. Currently, these

PDS employees do not receive credit toward their Federal retirement for any time they worked at PDS between 1987 and 1999.

H.R. 5600 permits PDS employees to count their qualifying years

of service to determine eligibility for participation in FERS. These

24 current employees have waited several years for this inequity to

be addressed. For some, this legislation could make the difference

between retiring now and retiring as much as 12 years from now.

For one who died 3 years ago, 4 months short of his retirement

eligibility, it has made the difference between an annuity for his

surviving wife and no annuity at all.

PDS suggests that two technical corrections be made to the draft

legislation. One correction will allow for consistent treatment for

similarly situated PDS employees. The other will add clarity to

Congress’s intent to provide this retirement benefit to those employees.

First, current and former PDS employees who are enrolled in a

third retirement plan, the Offset Civil Service Retirement System,

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should be included in the group of employees contemplated by H.R.

5600. As noted, the legislation will allow current and former PDS

employees to receive credit under FERS for service they performed

prior to being covered by the Federal retirement provisions. H.R.

5600 does not, however, provide credit toward retirement for the

same type of service by PDS employees who, because they had sufficient prior service under the Civil Service Retirement System,

were placed under the Civil Service Retirement Offset retirement

program rather than the FERS program. These employees should

also receive credit for their qualifying service.

Second, current and former PDS employees should be explicitly

referenced in section 2(a) of the legislation, because section 2(a) describes the legislation’s intended beneficiaries. An express reference

will make clear that current and former PDS employees are contemplated by this provision. Evidence that the legislation is intended to include current and former PDS employees is found in

its title and in its prefatory language, but section 2(a), which describes the targeted employees, does not mention PDS employees.

In order to understand that current and former PDS employees

are included in section 2(a), one must refer to three other statutory

provisions: one within PDS’s authorizing statute, D.C. Code, section 2–1605, subsection (c)(1), which makes PDS employees Federal

employees for certain enumerated purposes, including Federal retirement; 5 U.S.C., section 8401, defining ‘‘employee’’ under FERS;

and assuming PDS’s above-requested amendment is made, 5

U.S.C., section 8331, defining ‘‘employee’’ under CSRS.

Neither of the two latter provisions specifically lists PDS. Naming PDS employees in section 2(a) will eliminate the need for reference beyond the four corners of this legislation.

With the above-described changes, this subcommittee will help

PDS succeed in accomplishing the long-sought-after goal of obtaining for PDS employees appropriate credit toward their Federal retirement.

I appreciate the opportunity to present this testimony to the subcommittee. Thank you.

[The prepared statement of Ms. Buchanan follows:]

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Mr. DAVIS. Thank you all very much. We certainly appreciate

your testimony. Let me quickly begin with a question.

Ms. Wicks, your testimony highlights some of the challenges and

consequences of being denied their total service years by employees

who work under your supervision. What does this do for their morale, if you can make any assessment?

Ms. WICKS. Well, I would assume that it would improve employee morale. It has been a concern since 1997, when the act was

passed, that the employees felt that they were sold out somehow

and they were cheated somehow. This would go a long way in restoring their faith in management and their faith in the retirement

system. So I think it would improve morale.

Mr. DAVIS. If H.R. 5600 was enacted, a number of your employees would become eligible for retirement. What do you think would

actually happen?

Ms. WICKS. I am not certain as to the number who would be eligible, but the reality is that besides this negative aspect, let’s say,

of their employment, our employees typically are fairly satisfied

with their jobs, and tend to have long careers with the courts. So

I don’t believe that it would cause a rush to retirement in any way.

Mr. DAVIS. Well, let me just ask this last question before I have

to run off to vote—and Mr. Marchant, I am sure, will be running

off to vote. But I understand that Kathy Holiday Crawford and

other employees in her situation have expressed strong support for

H.R. 5600.

If it was passed, or an amended version passed, would you expect

many of these employees to retire immediately, or would many of

these employees continue to provide services with reassurance that

they are eligible for retirement? Since this applies directly to Ms.

Crawford and other individuals in her situation, perhaps she would

like to respond to that question.

STATEMENT OF KATHY HOLIDAY CRAWFORD

Ms. CRAWFORD. Thank you, Mr. Chairman. Thank you all for allowing me to speak today. First, I would like to say, if we are given

back our years, I don’t see that there will be a drastic departure

to depart from the court. As I put in my statement, we enjoy the

work that we do, but we would like to get the years back that we

lost basically on the date that we were hired.

Mr. DAVIS. So you feel that you have actually given up something

unnecessarily, through no fault of your own; and you would like

very much to have it restored. Is that correct?

Ms. CRAWFORD. Yes, sir. I feel that something was taken from

me. I did not lose years by choice. I lost my years by force.

Mr. DAVIS. Well, thank you very much. I am going to run vote.

Ms. Norton, perhaps you would just continue, and I will be back

as soon as I finish voting.

Ms. NORTON [presiding]. For those of you from the District of Columbia, you can either regard this as a benefit or—a penalty that

I am still here, because I shouldn’t be, and I do not expect to be

after the Senate gives us the vote we expect this very year. I simply want to get beyond some of the nomenclature that is generally

used to describe the workers we are talking about.

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Mr. Quander, you testified that the majority of the staff, I am

looking at your testimony, involved with offender supervision are

classified as law enforcement employees. Could you elaborate on

that statement?

Mr. QUANDER. Yes. Many of the individuals that we identified

are members of law enforcement. They have direct contact with offenders, individuals who have been a part of the criminal justice

system who have been adjudicated, who have been convicted

and——

Ms. NORTON. Are they peace officers?

Mr. QUANDER. They are akin to probation officers in the Federal

Service. We have the authority to be armed; we are not, but we do

have that authority. Technically, they are not peace officers, but

they are law enforcement officers. They are in the homes. They are

riding with the Metropolitan Police Department. They are doing

law enforcement work at the highest level. They are putting their

lives on the line every day——

Ms. NORTON. So they are doing the work of peace officers without

the peace weapon?

Mr. QUANDER. Yes.

Ms. NORTON. Continue.

Mr. QUANDER [continuing]. With their skills.

And many people in the probation and parole area do this. They

rely upon the skill set as opposed to weapons. They use the training that they have to talk to individuals. But it doesn’t diminish

the fact that they are dealing with individuals who, on occasion,

may be unpredictable. So, safety is always in the back of every

member’s mind, their safety and the safety of others. It never

leaves them.

So they are true law enforcement professionals.

Ms. NORTON. Are some of these former police officers.

Mr. QUANDER. Yes, they are.

Ms. NORTON. So their value to CSOSA has precisely been their

law enforcement training then?

Mr. QUANDER. It complements what we want to do. A number of

them have training in the military, as military police, as well as

some members of the Metropolitan Police Department and other

law enforcement organizations that are currently working with us

at CSOSA.

Ms. NORTON. And their title is Community Supervision Officer?

Mr. QUANDER. Community Supervision Officers for CSOSA proper and Pretrial Services Officers for the pretrial component because

they do many of the same functions as far as interaction with individuals who are pending, proper.

Ms. NORTON. Are those people with PDS?

Mr. QUANDER. No. They’re with the Pretrial Services Agency

[PSA].

We have so many initials floating around. But that’s PSA, Pretrial Services, which is part of the umbrella.

Ms. NORTON. So they are also classified as law enforcement officers?

Mr. QUANDER. Yes.

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Ms. NORTON. Are you continuing to, in filling these positions, try

to find people who may have retired, for example, from law enforcement, from police work, former police work?

Mr. QUANDER. If they have the other qualifications, yes, because

they have experience with the population that we are dealing with,

they have an educational background.

Ms. NORTON. So you might want a young person if they had

some law enforcement background and they applied for a job; that

might be a desirable employee for a Community Supervision Officer?

Mr. QUANDER. Yes.

Ms. NORTON. Now, of course, they would be foolish to come in

with the law as it is because they are treated differently from others with law enforcement training, isn’t that true, with respect to

their retirement benefits if they come into—or would they, in fact,

go into FERS knowing full well that they were getting FERS?

Mr. QUANDER. They go into FERS knowing, but they will still be

entitled to the same.

Ms. NORTON. But FERS is different for law enforcement officers?

Mr. QUANDER. No. I’m not the personnel expert, but it is my understanding that for a new employee coming into law enforcement

for CSOSA, they will still be eligible for retirement with 20 years

of service and age 50, with a mandatory retirement age of 57. So

coming into that, they still have that. It is that group that came

in after 1987 that is not covered.

Ms. NORTON. That’s the cutoff point?

Mr. QUANDER. That’s that area.

Ms. NORTON. You said that—you say in your testimony that 28

percent are supervisors. Would these supervisors also be law enforcement officers who have risen through the ranks?

Mr. QUANDER. Yes. Supervisors have law enforcement status.

They go out and do accountability tours just as the CSOs do. They

meet frequently with offenders, oftentimes the offenders who have

problems, who are hostile.

The supervisors have a lot of experience, so they’re on the front

lines just as often; and it is a requirement that they actually go out

and actually do home visits and do accountability tours and do

other things with the staff. It is not just the staff that are out

there; supervisors, as well.

Ms. NORTON. Just like police who go into people’s homes except

they don’t have a gun. Forty-four percent are Community Supervision Officers, 28 percent are supervisors, so we have to add them,

do we not, to the law enforcement number; is that not true?

Mr. QUANDER. Yes.

Ms. NORTON. And one is a branch chief. Don’t we have to add

him or her——

Mr. QUANDER. Her, yes.

Ms. NORTON [continuing]. To the number who are law enforcement officers and thus affected?

And finally 10 percent work in the Offender Processing Unit. Are

they also law enforcement, classified as law enforcement officers?

Mr. QUANDER. Many of those individuals are also classified as

law enforcement personnel because they’re dealing with the offender population. At intake, they’re getting a lot of information;

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they have a lot of contact with the offender population. So I would

suggest that the vast majority of that 10 percent are, in fact, law

enforcement.

Ms. NORTON. So essentially what we’re dealing with is a work

force who, when it was with the District of Columbia, was hired for

their law enforcement background, was trained with that background, take those risks—and you have testified, even more because they’re not armed—but have been transferred over and are

not treated precisely the same as they would have been treated had

they remained with the District of Columbia?

Mr. QUANDER. Yes.

Ms. NORTON. Your testimony says, of the Pretrial Services Agency that you referred to earlier, 54 percent are Pretrial Services Officers. Let me ask you for the record, are these officers law enforcement or would they be classified as law enforcement officers?

Mr. QUANDER. Yes, they are.

Ms. NORTON. And what is their work specifically?

Mr. QUANDER. They perform a similar function, but the population that they serve are pretrial defendants—they have not been

convicted of any criminal offenses, but they have been charged, and

they have been placed under the supervision of the Pretrial Services Agency.

And they’re employed by the Superior Court of the District of Columbia to provide supervision, to provide drug testing, to provide

substance abuse treatment, to have regular contact with many of

these individuals, to provide special programming for them, to ensure their return to court and their compliance with the conditions

of release that have been imposed by a judge of the Superior Court.

Ms. NORTON. Do they work in the court?

Mr. QUANDER. Many of them do. Many of them are actually in

the courtroom giving recommendations to the court on release conditions and background information. So many of them are in the

court, and they have regular contact with the offender population

that they serve.

Ms. NORTON. I’ve asked you to lay that out, Mr. Quander, because these titles, I think, hide the reason that these employees

were, in fact, hired for those particular missions at the time they

were hired. And it is important for Congress to be aware that these

are law enforcement officers, because of the deference Congress always, always pays to the special circumstance of law enforcement

officers—and if I may say so, I think particularly for officers who

are unarmed and do work which exposes them to danger.

Ms. Wicks, you testified that the bill making the changes we propose—and we now know with some additional ones—would, if I can

paraphrase you, restore faith in management and in the retirement

system. I wish you to elaborate on that and tell me what effect you

think it has had on court employees to have spent—how many

years is it now since we passed this bill?

Ms. WICKS. Eleven years.

Ms. NORTON. Eleven years. What effect you think it has had on

employees who have had to stay longer than they indicate they intended?

Ms. WICKS. From my perspective, it has obviously just had a

really demoralizing effect on employees. And while they’re there

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every day doing their jobs, it is a constant point of dissatisfaction.

And I think, just as I look at the room and see most of the audience behind me are court employees, it is clearly an issue of tremendous importance to them. It just makes it incredibly difficult,

as well, to motivate people and talk about justice and talk about

fairness and talk about treating the public with respect when they

don’t feel it comes their way. So I think it’s been an underlying,

continuous issue for them—maybe not one that they bring to the

top of mind every day, but it’s a sore subject.

Ms. NORTON. Well, you had to live with it and to live in anticipation of it is, of course, just as bad.

I had a question about the PDS employees, but the staff has

given me some background that seems to me we have to look more

closely into.

Let me ask all of you about those who have retired. What’s going

to happen or what has happened to those who have retired? Some

people have retired anyway, haven’t they?

Ms. WICKS. I assume, at least for the courts I assume they have.

But I’ve truly not seen as many folks retire who were hired during

that period of time, those lost years period from 1987 to 1997, as

I have some of our longer-term employees, who were here prior to

that time and were Civil Service.

Ms. NORTON. So you think the ones who were caught in that——

Ms. WICKS. I don’t think they’re retiring. They would leave our

service before they would retire from it has been my experience.

Ms. NORTON. So you think they could be recruited to go elsewhere?

Ms. WICKS. Oh, absolutely. Absolutely.

Ms. NORTON. The chairman wanted to ask you, Ms. Buchanan,

if you would provide the number—Mr. Quander has provided for us

a breakdown of the employees who are affected—if you would provide us with the number of employees participating in the CSRS

that would be affected by the changes now contained in H.R. 5600?

Ms. BUCHANAN. The number of employees is 24. It’s cited in a

footnote in our testimony, our written submission, footnote 5. And

that’s 24 current employees. We do not know how many former employees might be affected because we do not know what their subsequent employment histories have been since they left PDS.

Ms. NORTON. So all we can imagine is that at—your testimony,

Ms. Wicks, is that there haven’t been a lot of people who have

taken the sacrifice of retiring without their benefits. Have they believed that Congress would, in fact, correct this matter and are

they waiting in the hope that is exactly what is going to happen?

Ms. WICKS. Maybe Kathy can answer that better than I.

Ms. NORTON. I would be pleased to have any testimony from any

of you who have any idea about that.

Ms. CRAWFORD. Actually, we have not been able to retire because, as it stands, we only have 11 years toward retirement. So

financially, we cannot retire.

And actually this is an issue that we have been trying to get addressed over the years; and again I can only say, we thank you because we have at least gotten this far.

Now, if we get our years back, then of course it will be to each

individual employee to go and sit with their family and decide what

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they should do, whether they will retire or stay. But right now we

are not eligible to retire because it’s as if we have been employed

only since 1997. So everybody who was at Court Social Services,

which a lot of us are, in the hazardous-duty realm, we are not eligible to retire. We won’t be eligible to retire until 2017.

Ms. NORTON. Are you saying that 2017 would be the earliest date

any employee could retire?

Ms. CRAWFORD. Yes, that’s the earliest date that we can retire.

Ms. NORTON. Because if you count the oldest age that is caught

in this time warp, the oldest age would be held until what year?

Ms. CRAWFORD. 2017, because we would need 20 years of service

under the first system, and our first retirement goes back to 1997.

Ms. NORTON. Do you have any idea what the age of some of these

employees who will be held 20 years is?

Ms. CRAWFORD. Yes, ma’am, I do.

Ms. NORTON. Don’t scream out a number, people. You don’t need

to incriminate yourselves. I’m just trying to get some sense.

Ms. CRAWFORD. We currently have employees in the hazardous

duty of Court Social Services who are in their 60’s, in their late

50’s; and they have to work the additional years before they can

retire.

Ms. NORTON. These employees are now in the Federal Employees

Health System, aren’t they?

Ms. CRAWFORD. Yes.

Ms. NORTON. You know, if the OPM was serious, it would compare the costs incurred by that system, as well, since all of the data

we have is that the older you get, the more likely you are to need

real service in the FERS system, and those of us who are spring

chickens just don’t use it very much.

I don’t know if anyone has any data on—and Ms. Wicks may because she, of course, would perhaps have observed whether people

take sick leave, whether people have or report disabilities of various kinds as they age, and the rest that might comprise such an

answer. I realize you may not have done——

Ms. WICKS. I couldn’t say that I have hard data. I could say

anecdotally, the court has certainly, as our work force agent—and

I am sure everybody sees the same thing. We certainly see a lot

more instances of disability and we see a lot more instances of family medical leave being used for health issues. So certainly, to your

point, health care costs increase the older your work force gets.

The other thing we were discussing is the fact, as well, that the

OPM argument, if people have to work longer then their income

gets higher, so their retirement benefits are more costly to OPM.

It depends on what assumptions you’re looking at to determine

what the costs would be over time. But certainly one assumption

could be that workers who work longer make more money, and

they will cost more in retirement because the retirement benefits

are higher, so it seems to us that it could really cut both ways.

Ms. NORTON. Certainly, if you were serious about making a cost

argument, you’re going to have to look at those and you’re going

to have to look at health care costs.

Ms. WICKS. Exactly.

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Ms. NORTON. And you have to look at all of those in light of what

amounted to a promise to leave people whole, which, of course, is

a sacred promise.

The reason that we’re able to float bonds, given the terrible indebtedness of the United States of America, and get people to buy

them is because our word has been our bond. And employees, of

course, have regarded that equally to be the case.

I want to just say for the record, I have very much been at one

with our majority in living by PAYGO. And I note for the record

that the Senate sure hasn’t found it should live by PAYGO. Now,

PAYGO is, of course, the system we adopted when President Clinton was in power, and essentially we do not have an effect on appropriation, which I hasten to add.

I don’t see the argument for applying PAYGO to a retirement

system. I mean, that entirely escapes me. So if you want to really

pile on with these employees, then bring PAYGO to a retirement

system, since we don’t count PAYGO in the retirement system. And

I would add to that, and the House is to be congratulated to try

to press down the deficit. I would add to that I don’t think any

Member of Congress would want us to break a promise to Federal

employees at the expense of PAYGO, and that should be the basis

for an exemption.

Now, we’ve just had experience in this very subcommittee that

I think proves that Congress will not break a promise to Federal

employees. And that’s who we’re talking about. And I cite our experience with the GAO.

The GAO sought to withhold COLAs from GAO employees based

on their version of pay, the—I don’t want to call it ‘‘reform’’—the

pay-for-performance system. They were, of course, essentially guinea pigs for that system. But they weren’t the only ones who were

doing pay-for-performance; the DOD, a much larger work force for

sure, was doing pay-for-performance. Homeland Security, or parts

of it, was probably doing pay-for-performance.

Appropriation time came around—and this I want specifically to

be noted for the record: It could not be avoided that Congress made

the DOD employees whole when DOD deprived those employees of

their COLA under the statute. But the small number of GAO employees were never made whole, and so these employees who suffered under the pay-for-performance system were unique in the

Federal system, and there were COLAs owed them.

Now, we not only have made them whole; we have made them

back-pay whole. That’s what the promise of the United States of

America is all about. We did not allow these Federal employees to

be singled out even for a new system that we ourselves had authorized.

Now, I have indicated I have heard nothing from the record to

say we authorized this difference. I’m still a law professor; I teach

at Georgetown, and I respect the notion of textualism, because I

teach textualism and what we call contextualism. That is to say,

there are very few statutes which the courts—even the strictest of

those who look to congressional intent are able to use only the bare

words of the statute. And so, more often than not, we’re forced to

use contextualism in order to see, well, what really did Congress

intend?

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The OPM representative cited for me one sentence to support the

notion that unequal treatment of Federal employees is justified,

and worse, was intended by the Congress of the United States. She

threw it back in our face.

When I asked her, all right, let’s assume your hypothetical, given

the unequal treatment that has resulted, would you recommend

that we change it? And all she could say was—I had better bear

in mind that I’m testifying for the administration—and so all she

would say was that she was not making that recommendation.

She did not say she should not make the recommendation. She

did not even say that there was no unequal treatment, because it’s

impossible to avoid the fact that there is unequal treatment.

And so I just want to say to you—I think these are the last witnesses; aren’t they the last witnesses we have? I just want to say

to you that I am going to find—we don’t ask for exemptions from

PAYGO. I haven’t heard that PAYGO would apply here. All that

I have heard is that it adds to the FERS system.

I do not believe that we would need to make a specific appropriation in order to make these employees whole. So I’m going to argue,

first, that I don’t believe a specific appropriation is necessary. And

second, I’m going argue that even if it did, this would be the first

time I know of where the promise of the United States has been

violated knowingly by the United States and not fixed.

I thank all of you for your testimony. Those who can vote are

now continuing to vote. And the Chair has given me permission to

thank you for him as well and to tell you that this committee will

proceed to try to do our very best to correct this wrong.

Thank you for your testimony.

[Whereupon, at 4:45 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing recorde follows:]

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