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Mrs. DAVIS OF VIRGINIA. I ask unanimous consent that all Members have 5 legislative days to submit written statements and questions for the hearing record and that any answers to written questions provided by the witnesses also be included in the record. Without objection, so ordered.

I ask unanimous consent that all exhibits, documents and other materials referred to by Members and the witnesses may be included in the hearing record and that all Members be permitted to revise and extend their remarks. Without objection, it is so ordered.

I ask unanimous consent to enter into the record a memorandum that was sent to members of the Subcommittee on Civil Service and Agency Organization regarding law enforcement compensation and retirement issues. Without objection, it is so ordered.

[The information referred to follows:]

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The

purpose of this memorandum is to provide both a historical perspective on the federal government's statutes and regulations governing personnel matters for the federal law enforcement workforce and an overview of their current retirement benefits and compensation.

I am looking forward to the July 23, 2003, joint hearing with the Subcommittee on Criminal Justice, Drug Policy, and Human Resources. I believe it will provide important insight on how the federal government can best recruit and retain a highly skilled and motivated law enforcement workforce and enable these individuals to provide a decent standard of living and retirement for their families. I am hopeful that this Subcommittee can reach a bipartisan consensus on legislative priorities for the 108th Congress for federal law enforcement personnel', and I want to work with you toward that objective.

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This document will first address the status of what is usually described as “6(c) retirement” for law enforcement officers, which generally allows for retirement upon reaching the age of 50 and completing 20 years of eligible law enforcement officer service. The memorandum will briefly examine its legislative history, current definition, development in case law, and estimated costs of additional coverage.

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For purposes of this document, the term "law enforcement personnel” shall refer to individuals in the federal government engaged in a protective occupation. "Law enforcement officers” shall refer to individuals engaged in law enforcement functions who have been granted the enhanced retirement benefit, otherwise known as “6(c) retirement."

The paper will also provide an overview of compensation statistics for law enforcement personnel, with summaries of past analyses and recommendations provided by the Office of Personnel Management (OPM) and the 1993 National Advisory Commission on Law Enforcement.” Finally, the document will conclude with a brief synopsis of law enforcement-related legislation currently before the Subcommittee.

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II.

Retirement Benefits for Law Enforcement Officers

A. Introduction

The term “6(c) retirement” is a colloquial expression that refers to retirement with full benefits for law enforcement officers (LEO's) after 20 years of service under either the Civil Service Retirement System (CSRS) or Federal Employees Retirement System (FERS). Under CSRS, an employee who qualifies for LEO retirement credit is eligible to retire upon attaining the age of 50 and after completing 20 years of eligible LEO service.“ FERS employees may retire at age 50 with 20 years of eligible service, and may also retire at any age with 25 years of service. Most civilian federal employees who began their careers before 1984 are covered by CSRS. Federal employees first hired in 1984 or later are covered by FERS.

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An employee qualifying for LEO retirement receives a larger annuity than ordinary civil service employees, but is subject to larger salary deductions during his or her employment (however, the larger salary deductions cover only a small fraction of the cost differential). An employee can qualify for LEO retirement credit either by serving in a position that has been approved as such, or by applying for LEO credit and satisfying the employing agency, the Merit Systems Protection Board (MSPB), or the federal court that he or she is entitled to LEO retirement credit because his or her actual duties primarily are as described in Section C, supra.

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B. Legislative History of the LEO Retirement Benefit

In 1947, Congress approved legislation which extended retirement eligibility at age 50 after at least 20 years to FBI agents. The purpose was to simultaneously provide an incentive for FBI personnel to remain in the federal service while maintaining a young, vigorous workforce. The new retirement provision also acknowledged the difficult and often hazardous nature of the work."

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See Appendix A for dala on compensation and retirement benefits as provided by OPM.
The term “6(c) retirement" is a shorthand expression for 5 U.S.C. $ 8336(c).
*5 U.S.C. 8 8336(c) (2001).
SS U.S.C. & 8412(d)(2) (2001).
OS U.S.C. 8 8334(c); 5 U.S.C. $ 8422(a)(3).
See 5 C.F.R. & 841.413.
S U.S.C. & 8331(20) (2000); Bingaman v. Dept. of the Treasury, 127 F.3d 1431, 1436 (Fed. Cir. 1997).
Pub. L. No. 80-168 (Jul. 11, 1947). See 5 U.S.C. $ 8336(c) (2001); See U.S Department of the Interior's
Firefighter and Law Enforcement Special Retirement Resource Center, (revised Jun. 5, 2002)
<http://www.doi.gov/training/flerumilh.ban!>.

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In 1948, Congress approved a measure that extended the 50/20 retirement benefit to other federal employees with similar duties. The law covered employees "whose primary duties were the investigation, apprehension, or detention of persons suspected or convicted of offenses against the criminal laws of the United States (including any officer or employee engaged in such activity who had been transferred to a supervisory or administrative position).' The head of each agency was responsible for recommending individuals for the preferential retirement based upon their job duties. OPM's predecessor, the Civil Service Commission, was to then determine if the applicant met the legal criteria, taking into consideration the degree of hazard of the individual's duties.

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In 1974, the law enforcement retirement benefit was significantly changed by federal legislation. Major changes included the following: the “hazard” requirement was deleted; the benefits formula was changed to 2.5% of high-three years average salary for the first 20 years, and 2% for each year exceeding 20 years; the required employee retirement contribution was raised .5%; and employees were permitted to retire at age 50 after 20 years of LEO-eligible service regardless of the employee's job at the time of retirement. Effective January 1, 1978, LEO-eligible employees became subject to mandatory separation at age 55 if they had completed 20 years of service. Finally, agency heads were permitted to fix a minimum and maximum age for original appointment into an LEO position, with OPM's concurrence.

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Congress changed the criteria for LEO's in the Federal Employee Retirement System (FERS) effective January 1, 1987. Changes in the statute and implementing regulations included the following: LEO retirement determination authority was delegated to agency heads with very limited re-delegation authority; coverage would be based primarily on position coverage, rather than individual coverage; and more emphasis on the requirement of “rigorous" duties for primary positions." In addition, this legislation added personnel previously under the DC government by adding those who provide “protection of officials of the United States against threats to personal safety. The new law also created a special FERS annuity formula for LEO-eligible personnel of 1.7% of high-three years average salary for the first 20 years, and 1% for each year exceeding 20 years."" CSRS definitions of law enforcement officer and firefighters, as well as CSRS regulatory procedures, continued to apply to all service prior to January 1, 1987.16

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1° Pub. L. No. 80-879, (Jul. 2, 1948).

Id. ? Pub. L. No. 93-350, (Jul. 12, 1974). It should be noted that two years previous, in 1972, Federal firefighters obtained 6(c) retirement in P.L. 92-382.

See U.S Department of the Interior's Firefighter and Law Enforcement Special Retirement Resource Center, (revised Jun. 5, 2002) <http://www.doi.gov/training/flert/milh.html>.

Pub. L. No. 99-335, (Jun. 6, 1986).
Id.
Id.

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In 1990, Congress changed the mandatory retirement for LEO’s to age 57. It also added special pay for positions at grades GS-10 and below, which meet the LEO definitions in 5 CFR § 550.103." A 1993 regulatory change authorized agency heads to determine position coverage, individual service credit appraisals, and individual position coverage requests for CSRS employees.'

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C. “Law Enforcement Officer” Benefit Eligibility

1. CSRS Definition of a “Law Enforcement Officer” and Service

Requirements

A "law enforcement officer,” for CSRS purposes, is defined in 5 U.S.C. § 8331(20) as “an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, including an employee engaged in this activity who is transferred to a supervisory or administrative position.” “Detention” is defined as certain employees'

whose duties in connection with individuals in detention suspected or
convicted of offenses against the criminal laws of the United States or of
the District of Columbia or offenses against the punitive articles of the
Uniformed Code of Military justice (chapter 47 of title 10) require
frequent (as determined by the appropriate administrative authority with
the concurrence of the Office) direct contact with these individuals in their
detention, direction, supervision, inspection, training, employment, care,
transportation, or rehabilitation[.]20

Capitol Police and Supreme Court Police have the same enhanced retirement benefit as LEO's under 5 U.S.C. § 8336(m) & (n).

Under CSRS, federal law enforcement officers receive the retirement benefits provided in 5 U.S.C. $ 8336(c)(1) after becoming 50 years of age and completing 20 years of qualifying service. According to this section, “[a]n employee who is separated from the service after becoming 50 years of age and completing 20 years of service as law enforcement officer, firefighter, or nuclear materials courier, or any combination of such service totaling at least 20 years, is entitled to an annuity."

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Pub. L. No. 101-509, (Nov. 5, 1990). 185 C.F.R. 9 831.903 (a), (b) (2002).

Includes employee of the Bureau of Prisons and Federal Prison Industries, Inc.; employees of the Public Health Service assigned to the field service of the Bureau of prisons or of the Federal Prison Industries, Inc.; employees in the field service at Army or Navy disciplinary barracks or at confinement and rehabilitation facilities operated by any of the armed forces; and employees of the Department of Corrections of the District of Columbia, its industries and utilities. S U.S.C. $ 8331 (20) (2001). 20 5 U.S.C. & 8331(20) (2001).

5 U.S.C. & 8336(c)(1) (2001).

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