Inaction on Expanding LEO Retirement to FBI Police

Last Year, Congress extended "law enforcement officer" retirement to the police officers at the Federal Bureau of Investigation (FBI). Included in Public Law 107 – 273, Section 11024 of the 21st Century Department of Justice Appropriations Authorization Act authorized the FBI Police to receive pay and benefits similar to that provided to members of the US Secret Service Uniformed Division (USSS-UD), effective after 1 January 2003. However, because Congress did not specifically identify the Executive Branch agency which was to be responsible for crafting the regulations to implement this provision of the Act, no further action has occurred. In late April the Office of Personnel Management submitted a legislative proposal to Congress to repeal this section of the Act. denying the FBI the ability to effectively compete with other agencies for qualified police recruits. In their letter to the President of the Senate. OPM cited several reasons for submitting their proposal in addition to the lack of an identifiable agency to proffer regulations, including: that the "legislation is insufficient to authorize enhanced benefit payments from the Civil Service Retirement and Disability Fund,” that “no appropriations have been provided for the additional costs of enhanced benefits," and that Section 11024 "is technically insufficient to accomplish its objective." The Fraternal Order of Police believes that rather than accept OPM's arguments on the need for repeal, Congress should instead work to make the necessary changes to Section 11024. so that the clear intent of Congress can be carried out.

Increased Locality Pay for FLEOs/Removal of Limitation on Premium Pay

Over the last two Congresses, several proposals have been put forward to increase the locality payments received by Federal law enforcement officers, and to remove the limitations on the amount of premium pay that can be received by these employees. While we have taken no position on any of these proposals, I would like to advise the Subcommittee of our general position on this issue.

First and foremost, the F.O.P. believes that if locality pay is increased for Federal LEOs, it must be a total, nationwide increase which would affect Federal employees in all thirty-two Metropolitan Statistical Areas (MSAs). Second, we believe that to improve recruitment and retention, the enhanced locality pay should be extended to all Federal law enforcement officers, regardless of whether or not they are currently deemed to meet the definitions of Sections 8331 or 8401 of Title 5, U.S. Code. Third, we agree that Congress should eliminate the limitation on the "premium pay" Federal law enforcement officers can receive, which at present keeps criminal investigators and others from receiving compensation in excess of certain caps.

We are concerned, however, with the provision in some of these bills which would require OPM to essentially redo their 1993 report on a separate pay, evaluation and promotion system for Federal law enforcement officers, authorizing them to establish demonstration programs to put such a system into effect on a trial basis. As currently written, the updated study and any demonstration project would be limited to only those

officers who meet the retirement definition, excluding many agencies whose officers could benefit from inclusion in this section. In a recent report, which the F.O.P. helped to facilitate, the General Accounting Office (GAO) studied pay, recruitment and retention at thirteen Federal police forces in the D.C. area. GAO noted that, among the agencies they reviewed, 1) the entry-level pay for police officers varied by more than $10.000 in FY 2002; 2) total turnover nearly doubled between 2001 and 2002; 3) in FY 2002 eight of the 13 agencies experienced their highest turnover rate in six years; 4) officials at nine of the 13 agencies reported some difficulty in recruiting officers; and 5) none of the police forces used "important human capital flexibilities, such as recruitment bonuses and student loan repayments, during fiscal year 2002.”

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As the GAO report shows, the problems with the recruitment and retention of Federal law enforcement personnel is not limited to one particular GS classification or agency. Now is not the time for enacting measures which have the effect of continuing the disparities which exist between and among Federal law enforcement employees, or which allow one agency to recruit officers at the expense of another. Rather, it is time for those which recognize the important work performed by these brave men and women throughout the Federal government, and which will attract the best and brightest to Federal law enforcement work. Therefore the F.O.P. believes that any study or demonstration project which OPM is authorized to perform must also include all uniformed Federal law enforcement personnel, and those who are outside of the LEO retirement system.

Expansion of LEO Retirement to Assistant United States Attorneys & Federal
Prosecutors

Several pieces of legislation have also been put forward in past Congresses to include Assistant United States Attorneys (AUSA) and other Federal prosecutors within the LEO retirement system. We realize that other groups and occupations often seek coverage under theses provisions of Chapters 83 and 84 of Title 5, US Code, because of the more generous retirement benefits they provide. In addition to doing nothing to rectify the disparity among law enforcement personnel, the legislation which has been introduced on this issue is problematic for several other reasons. They contain provisions which would exempt Federal prosecutors from the maximum hiring age and mandatory separation requirements applicable to Federal law enforcement officers, and which help agencies maintain young and vigorous workforces. They also contain provisions which would require the government to pay both the individual and the agency costs for employees who elect LEO coverage. Thus, what Federal prosecutors would gain by enactment of this legislation is above and beyond what is available even to current recipients of LEO retirement coverage.

But perhaps most importantly, these bills beg the question: Should Federal prosecutors qualify as law enforcement officers when not all Federal law enforcement officers qualify as law enforcement officers? The F.O.P. believes that the answer is

22 "Federal Uniformed Police: Selected Data on Pay, Recruitment, and Retention at 13 Police Forces in the Washington, D.C., Metropolitan Area (GAO-03-658)," U.S. General Accounting Office, June 2003, Pg. 23.

obvious, and that Congress should not expand the number and types of employees eligible for LEO coverage unless and until it first acts to remedy the existing disparity within the law enforcement and police occupations under current law.

Thank you very much, Chairmen Davis and Souder, for the opportunity to appear before you here today. We very much appreciate the support of yourself, Madam Chairman, Mr. Davis, and the numerous Members of both Subcommittees who were cosponsors of the "Law Enforcement Officers Equity Act" in the 107th Congress. We look forward to working with the Subcommittees to advance legislation important to Federal law enforcement officers, and I would be pleased to answer any questions you may have at this time.

Mrs. DAVIS OF VIRGINIA. Mr. Bonner, we haven't forgotten you, but I would need you to stand so I could swear you in.

[Witness sworn.]

Mrs. DAVIS OF VIRGINIA. Let the record reflect that the witness has answered in the affirmative. And, Mr. Bonner, Mr. T.J. Bonner from the National Border Patrol Council, we welcome you. And you are recognized for 5 minutes.

STATEMENT OF T.J. BONNER, PRESIDENT, NATIONAL BORDER PATROL COUNCIL

Mr. BONNER. Thank you, Madam Chairwoman, Mr. Chairman, other members of the subcommittees. On behalf of the 9,000 frontline law enforcement officers represented by the National Border Patrol Council, we welcome this opportunity to present our views concerning issues that affect every aspect of our working lives.

While there is a clear consensus that we need to attract and retain the best and the brightest employees in order to safeguard our Nation's liberty, there is a considerable amount of disagreement concerning how best to achieve this goal. In the brief time allotted, I would like to share the perspective of frontline employees.

We believe that any pay and personnel systems that are developed must follow three basic principles: First, employees must be treated fairly and equitably. Second, their wisdom and experience must be valued, solicited, and heeded. Finally, they must be adequately and equitably compensated for the essential services that they provide.

Deviating from these commonsense principles will make it difficult, if not impossible, to attract and retain the best and the brightest employees, and should be avoided at all costs.

For example, depriving employees of a meaningful voice and input into their conditions of employment by limiting or eliminating their collective bargaining rights ignores the wealth of knowledge and experience that they possess. Since Federal employees cannot strike or bargain over wages or benefits, the only topics left on the bargaining table are working conditions. Denying these employees a meaningful voice in these matters is foolish and counterproductive, and results in poor morale as well as ill-advised policies generated by managers far removed from the front lines.

Grievance and appeals processes that fail to provide for review of management decisions by independent neutrals only exacerbate inequities and demoralize the work force, chasing away good workers. Employees are not willing to serve their entire career under the threat of being fired without cause at the whim of a manager or political appointee, nor are they willing to work under a system that denies them the basic right to contest such actions in a fair forum. Pay banding systems that do not have fair and easily understood rules, incorporating the principle of equal pay for substantially equal work, create inequities that are extremely damaging to morale and the spirit of teamwork that is so essential in law enforcement.

So-called pay-for-performance, which is actually pay based upon favoritism in many cases, suffers from the same flaws and yields the same disastrous results. Pay systems that deny employees time-and-a-half compensation for their overtime work, such as the

Law Enforcement Officers Availability Pay Act of 1994, are a prime source of dissatisfaction and cause good employees to seek jobs with other agencies.

The relative ease of recruiting in an economic slump should not deceive anyone into believing that this meets our goal of attracting highly qualified law enforcement officers who will remain in the service of our Nation for 20 to 30 years. Hiring desperate people who are looking to make ends meet until they can find a career that genuinely interests them serves neither the employees nor the public well.

Federal law enforcement officers are in the midst of a human capital crisis. Employees are voting with their feet in record numbers, and there is great cause for alarm. Last fiscal year, for example, one out of every five Border Patrol agents left the agency for one reason or another.

There are four major reasons that employees are abandoning careers in Federal law enforcement: lack of job satisfaction; low pay compared to that of other law enforcement officers performing similar tasks; lack of upward and lateral mobility; and poor working conditions. Unless all of these issues are addressed simultaneously, attrition will remain unacceptably high.

Frontline employees recognize that the current system is far from perfect and is in need of reform. They are also wise enough to know that it could easily be made worse, and therefore do not embrace change for the sake of change. They understand that in order to effectuate positive change, reform needs to be accomplished in accordance with the principles outlined herein.

Salaries of employees in high-cost-of-living areas must be commensurate with those of other law enforcement officers in those areas if the Federal Government hopes to remain competitive. Law enforcement retirement coverage needs to be extended to all of those who enforce our Nation's laws, including legacy immigration and Customs inspectors, if we want to attract the best and the brightest to these important jobs.

In order to convince people to choose a career in Federal law enforcement, they need to be provided with challenging and financially rewarding career opportunities. Choice promotions need to be offered to existing employees before outside applicants are considered.

In sum, any changes to personnel laws, rules, and regulations must be viewed through the prism of the commonsense principles outlined herein, and must recognize that the goal of a first-class work force cannot be achieved if workers are treated in a secondclass manner.

Thank you. And I would be happy to answer any questions you might have.

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

[The prepared statement of Mr. Bonner follows:]