Federal Law Enforcement Retirement
Information on Enhanced Retirement Benefits for Law Enforcement Personnel Gao ID: GAO-09-727 July 30, 2009From fiscal years 2000 through 2008, the number of persons employed by federal agencies who perform various law enforcement functions and receive either special pay or enhanced retirement benefits, in the form of a faster-accruing pension, has increased by 55 percent. In addition, as of September 2008, approximately 51,000 personnel were employed in law enforcement-related occupations that could seek enhanced retirement benefits in the future. GAO was asked to conduct a review of the retirement benefits provided to law enforcement personnel. This report addresses (1) the processes used to grant enhanced retirement benefits to federal law enforcement personnel, (2) the rationales and potential costs for extending benefits to additional occupations, and (3) the extent to which federal agencies used human capital tools to retain law enforcement and other related personnel. GAO reviewed relevant laws, regulations, and other documentation, such as agency reports describing the processes used to grant enhanced benefits, and interviewed officials from the Office of Personnel Management (OPM), Department of Homeland Security (DHS), Department of Justice (DOJ), and the Internal Revenue Service (IRS) because these entities employed approximately 84 percent of all law enforcement and law enforcement-related personnel in fiscal year 2008. In commenting on a draft of this report, DHS, DOJ and OPM generally concurred with the report. IRS stated that it had no comments on the report.
In order for certain employees to receive enhanced retirement benefits, agencies generally determine that a certain group of employees meets the statutory and regulatory definitions of a Law Enforcement Officer (LEO)--which includes such activities as conducting investigations--and submit the determination to OPM. As of the end of fiscal year 2008, about half of federal employees receiving enhanced retirement benefits met the statutory and regulatory definitions. In recent years, several employee groups and unions representing law enforcement personnel whose agencies and OPM have determined that they do not meet the LEO definitions have sought such benefits directly through legislation. Currently, about half of law enforcement personnel receiving enhanced benefits have obtained these benefits directly through legislation. Law enforcement-related employee groups that sought enhanced retirement benefits directly through legislation have cited a number of rationales to justify receiving these benefits, including high attrition rates. The provision of such retirement benefits may result in additional costs to the agency and federal government because these costs are generally higher than providing retirement benefits to regular federal employees. GAO's analysis of available data showed that attrition for law enforcement-related personnel not receiving enhanced retirement benefits was higher than law enforcement personnel receiving such benefits but not as high as all other federal employees. While attrition data are available, when asked to provide such data, the employee groups and unions seeking enhanced retirement benefits did not consistently provide it to us. Analyzing attrition data alone may not fully indicate why personnel are leaving a particular agency because a variety of organizational and economic factors, as well as compensation, influence separation decisions. GAO's analysis also showed that such benefits increase agency short-term costs and could increase the government's long-term pension liability. Finally, providing such benefits to some groups but not others has created perceived inequities and DHS and DOJ acknowledge that it could affect their strategic workforce planning. Federal agencies have the authority to use human capital tools, such as retention incentives, to assist with their efforts to address specific retention challenges. Some department and agency officials to whom we spoke said these tools are effective for retaining law enforcement personnel, while others maintained they need enhanced retirement benefits to effectively retain law enforcement-related personnel. The targeted use of these tools may present a cost-efficient alternative for retaining law enforcement-related personnel.
GAO-09-727, Federal Law Enforcement Retirement: Information on Enhanced Retirement Benefits for Law Enforcement Personnel
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
July 2009:
Federal Law Enforcement Retirement:
Information on Enhanced Retirement Benefits for Law Enforcement
Personnel:
GAO-09-727:
GAO Highlights:
Highlights of GAO-09-727, a report to congressional requesters.
Why GAO Did This Study:
From fiscal years 2000 through 2008, the number of persons employed by
federal agencies who perform various law enforcement functions and
receive either special pay or enhanced retirement benefits, in the form
of a faster-accruing pension, has increased by 55 percent. In addition,
as of September 2008, approximately 51,000 personnel were employed in
law enforcement-related occupations that could seek enhanced retirement
benefits in the future. GAO was asked to conduct a review of the
retirement benefits provided to law enforcement personnel. This report
addresses (1) the processes used to grant enhanced retirement benefits
to federal law enforcement personnel, (2) the rationales and potential
costs for extending benefits to additional occupations, and (3) the
extent to which federal agencies used human capital tools to retain law
enforcement and other related personnel. GAO reviewed relevant laws,
regulations, and other documentation, such as agency reports describing
the processes used to grant enhanced benefits, and interviewed
officials from the Office of Personnel Management (OPM), Department of
Homeland Security (DHS), Department of Justice (DOJ), and the Internal
Revenue Service (IRS) because these entities employed approximately 84
percent of all law enforcement and law enforcement-related personnel in
fiscal year 2008. In commenting on a draft of this report, DHS, DOJ and
OPM generally concurred with the report. IRS stated that it had no
comments on the report.
What GAO Found:
In order for certain employees to receive enhanced retirement benefits,
agencies generally determine that a certain group of employees meets
the statutory and regulatory definitions of a Law Enforcement Officer
(LEO)”which includes such activities as conducting investigations”and
submit the determination to OPM. As of the end of fiscal year 2008,
about half of federal employees receiving enhanced retirement benefits
met the statutory and regulatory definitions. In recent years, several
employee groups and unions representing law enforcement personnel whose
agencies and OPM have determined that they do not meet the LEO
definitions have sought such benefits directly through legislation.
Currently, about half of law enforcement personnel receiving enhanced
benefits have obtained these benefits directly through legislation.
Law enforcement-related employee groups that sought enhanced retirement
benefits directly through legislation have cited a number of rationales
to justify receiving these benefits, including high attrition rates.
The provision of such retirement benefits may result in additional
costs to the agency and federal government because these costs are
generally higher than providing retirement benefits to regular federal
employees. GAO‘s analysis of available data showed that attrition for
law enforcement-related personnel not receiving enhanced retirement
benefits was higher than law enforcement personnel receiving such
benefits but not as high as all other federal employees. While
attrition data are available, when asked to provide such data, the
employee groups and unions seeking enhanced retirement benefits did not
consistently provide it to us. Analyzing attrition data alone may not
fully indicate why personnel are leaving a particular agency because a
variety of organizational and economic factors, as well as
compensation, influence separation decisions. GAO‘s analysis also
showed that such benefits increase agency short-term costs and could
increase the government‘s long-term pension liability. Finally,
providing such benefits to some groups but not others has created
perceived inequities and DHS and DOJ acknowledge that it could affect
their strategic workforce planning.
Federal agencies have the authority to use human capital tools, such as
retention incentives, to assist with their efforts to address specific
retention challenges. Some department and agency officials to whom we
spoke said these tools are effective for retaining law enforcement
personnel, while others maintained they need enhanced retirement
benefits to effectively retain law enforcement-related personnel. The
targeted use of these tools may present a cost-efficient alternative
for retaining law enforcement-related personnel.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/products/GAO-09-727]. For more
information, contact Eileen Larence at (202) 512-5555 or
larencee@gao.gov.
[End of section]
Contents:
Letter:
Background:
Enhanced Retirement Benefits Have Been Granted through OPM and Agency
Administrative Processes as Well as through Separate Legislation for
Select Employee Groups:
Employee Groups Cite Various Rationales for Seeking Enhanced Retirement
Benefits through Legislation; Considering Supporting Data for
Rationales, Additional Costs, and Other Implications Could Inform
Decisions:
Using Human Capital Tools Could Offer A More Cost Efficient Alternative
Than Granting Enhanced Retirement Benefits For Retaining Select Law
Enforcement Related Personnel:
Concluding Observations:
Agency Comments:
Appendix I: Scope and Methodology:
Appendix II: Definition of "Law Enforcement Officer" for Retirement
Purposes:
Appendix III: Annuity Computation Information:
Appendix IV: Selected Non Standard Pay Plans:
Appendix V: Attrition Data:
Appendix VI: Federal Retention Incentives Utilization as Reported to
OPM and Congress:
Appendix VII: Comments from the Office of Personnel Management:
Appendix VIII: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Retirement Benefits--LEO and Non-LEO Retirees Under CSRS and
FERS with Voluntary Retirement--Fiscal Year 2008:
Table 2: Select Employee Groups That Have Been Found to Meet the LEO
Definitional Criteria and Receive Enhanced Retirement Benefits through
OPM's Administrative Process:
Table 3: Select Employee Groups' Currently Receiving Enhanced
Retirement Benefits Directly through Legislation by Occupation Series,
Fiscal Year 2008 Population, and Year of Legislation:
Table 4: Differences in Agency and Employee Contributions to Retirement
Funds for Regular Federal Employees versus Law Enforcement Personnel:
Table 5: Human Capital Tools and Special Pay Utilized by DHS, DOJ, and
the IRS to Retain Law Enforcement and Law Enforcement Related
Personnel:
Table 6: Annuity Accrual Rates:
Table 7: Selected Non Standard Pay Plans:
Table 8: Attrition Rates for Law Enforcement Personnel Receiving
Enhanced Retirement Benefits for Fiscal Year 2004 through Fiscal Year
2008:
Table 9: Attrition Rates for Law Enforcement-Related Personnel Not
Receiving Enhanced Retirement Benefits for Fiscal Year 2004 through
Fiscal Year 2008:
Table 10: Attrition Rates for Law Enforcement Personnel-Related
Receiving Special Pay but Not Receiving Enhanced Retirement Benefits
for Fiscal Year 2004 through Fiscal Year 2008:
Table 11: Attrition Rates for Other Personnel Not Employed in Law
Enforcement or Related Occupations for Fiscal Year 2004 through Fiscal
Year 2008:
Figures:
Figure 1: Governmentwide Attrition Rates for Law Enforcement and
Related Personnel, Fiscal Years 2004 through 2008 by Retirement
Category:
Figure 2: Governmentwide Moves among Law Enforcement-Related Personnel
Not Receiving Enhanced Retirement Benefits, Fiscal Years 2004 through
2007 by Retirement Category:
Abbreviations:
ATF: Bureau of Alcohol, Tobacco, Firearms and Explosives:
CBP: U.S. Customs and Border Protection:
COPRA: Customs Officer Pay Reform Act:
CPDF: Central Personnel Data File:
CSRS: Civil Service Retirement System:
DEA: Drug Enforcement Administration:
DHS: Department of Homeland Security:
DOJ: Department of Justice:
EHRI: Enterprise Human Resources Integration program:
EOUSA: Executive Office for United States Attorneys:
FBI: Federal Bureau of Investigation:
FERS: Federal Employees Retirement System:
GS: General Schedule:
IRS: Internal Revenue Service:
JMD: Justice Management Division:
LEO: law enforcement officer:
MSPB: Merit Systems Protection Board:
OMB: Office of Management and Budget:
OPM: Office of Personnel Management:
TSA: Transportation Security Administration:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
July 30, 2009:
The Honorable Robert A. Brady:
Chairman:
Committee on House Administration:
House of Representatives:
The Honorable Stephen F. Lynch:
Chairman:
The Honorable Danny K. Davis:
Member:
Subcommittee on Federal Workforce, Postal Service, and the District of
Columbia:
Committee on Oversight and Government Reform:
House of Representatives:
From fiscal years 2000 through 2008, the number of persons employed by
federal agencies who perform various law enforcement functions and
receive either special pay or enhanced retirement benefits--including a
faster-accruing pension--has increased by 55 percent, from
approximately 82,000 in September of 2000 to approximately 127,000 in
September of 2008.[Footnote 1] In addition, approximately 51,000
persons were employed in law enforcement-related occupations as of
September of 2008.[Footnote 2] Federal law enforcement personnel might
be provided with enhanced retirement benefits in different ways. First,
enhanced retirement benefits are provided to those law enforcement
personnel who are covered under the applicable Civil Service Retirement
System (CSRS) or Federal Employees Retirement System (FERS) statutory
and regulatory definitions of a "law enforcement officer" (LEO).
Coverage under CSRS and FERS LEO definitional criteria generally
include those personnel whose duties have been determined by the
employing agency and the Office of Personnel Management (OPM) through
an administrative process to be primarily the investigation,
apprehension, or detention of individuals suspected or convicted of
offenses against the criminal laws of the United States. The FERS
definition, however, also provides that a LEO position must be
sufficiently rigorous that it is required to be filled only by young
and physically vigorous individuals.[Footnote 3] Second, over the
years, other specific occupational groups that have not been determined
to meet the LEO definitional criteria under the administrative process,
such as U.S. Park Police within the Department of Interior, have been
explicitly added to the CSRS or FERS statutory LEO definitions so that
they are considered LEOs for retirement purposes and provided similar
retirement benefits. Third, certain other law enforcement personnel
groups, whose duties have not been determined by OPM and their
employing agency to be within the scope of the definitional criteria of
a "law enforcement officer" or explicitly added by amending the
statutory LEO definitions, have been provided enhanced retirement
benefits similar to that of LEOs directly through legislation. For
example, the Consolidated Appropriations Act, 2008 authorized specified
U.S. Customs and Border Protection (CBP) Officer positions to receive
enhanced retirement benefits comparable to those received by LEOs.
[Footnote 4]
With increasing numbers of law enforcement-related personnel being
added to agency ranks who may seek enhanced retirement benefits and
other employee groups presently seeking enhanced retirement benefits,
you asked us to conduct a review of the retirement benefits provided to
law enforcement personnel and the processes by which these benefits are
provided. This report addresses the following questions:
* What processes are being used to grant enhanced retirement benefits
to federal law enforcement personnel?
* What are the rationales and potential costs for extending such
benefits to additional occupations or employee groups?
* To what extent have federal agencies used human capital tools, such
as retention incentives, to retain both law enforcement and other
related personnel?
To answer these questions, we reviewed relevant laws, regulations, and
reports by OPM, the Congressional Budget Office, and the Congressional
Research Service that describe the current processes by which enhanced
retirement benefits are provided, as well as six different pieces of
legislation introduced in the 110th Congress that would have provided
enhanced benefits to specified employee groups. We also reviewed CBP
legislation that was enacted into law. As agreed upon with your office,
our review focused on the Department of Homeland Security (DHS),
Department of Justice (DOJ), and Department of the Treasury's Internal
Revenue Service (IRS) because these federal entities employed
approximately 84 percent of all law enforcement and law enforcement-
related personnel in fiscal year 2008.[Footnote 5] For the purposes of
this report, we are defining the term "law enforcement personnel" in a
manner that is broader in scope than the statutory and regulatory "law
enforcement officer" definitions. Specifically, when we refer to "law
enforcement personnel" in this report, we are including those employed
in occupations that currently receive LEO or similar enhanced benefits.
[Footnote 6] In addition, we are defining "law enforcement-related
personnel" as (1) those employed in occupations that do not currently
receive LEO or similarly enhanced retirement benefits, but who perform
some law enforcement-related job functions, including but not limited
to, having arrest authority, carrying a weapon, or participating in
some investigative or inspection capacity or (2) those who have
previously expressed interest in obtaining enhanced retirement benefits
directly through legislation. We did not include other specialized non
law enforcement related annuity recipients, such as federal air traffic
controllers and firefighters, in the scope of our review.
We obtained information on the benefits provided to law enforcement
personnel from DHS, DOJ, and IRS, as well as OPM and select employee
organizations and unions, and analyzed this information to determine
the extent to which the benefits granted to employee groups and
occupations vary. In addition, we analyzed data from OPM's Central
Personnel Data File (CPDF) for the population of law enforcement and
law enforcement-related personnel within DHS, DOJ, and the Department
of the Treasury as well as on a governmentwide basis.[Footnote 7] We
have previously reported that government-wide data from CPDF for most
of the key variables used in this study (agency, position occupied,
retirement plan, work schedule, and occupation) were at least 99
percent accurate, and thus concluded that the data were sufficiently
reliable for the purposes of this study.[Footnote 8] Our analysis of
the CPDF data separates these personnel into four different groups: (1)
law enforcement personnel receiving LEO or similarly-enhanced
retirement benefits, (2) law enforcement-related personnel not
receiving enhanced retirement benefits or special pay, (3) law
enforcement-related personnel receiving special pay but not receiving
enhanced retirement benefits,[Footnote 9] and (4) all other federal
personnel. We used CPDF data for fiscal years 2004 through 2008 to
determine the attrition rates (defined as resignations and transfers
from one agency to another) for law enforcement and law enforcement-
related personnel.[Footnote 10] Further, we analyzed CPDF data for
fiscal years 2004 through 2007 to determine whether law enforcement-
related personnel not receiving LEO or similarly enhanced retirement
benefits were moving to other federal positions that offered the
benefits.[Footnote 11] We also reviewed and analyzed information
provided to OPM on the extent to which federal agencies were utilizing
human capital tools, such as retention incentives, to assist with
retaining law enforcement and law enforcement-related personnel. In
addition, we reviewed our previous reports that discuss the use and
potential effectiveness of human capital tools to retain federal
employees.
During this review we interviewed officials from OPM on their roles and
responsibilities related to providing enhanced retirement benefits to
personnel who perform law enforcement-related duties. We also met with
representatives from six unions and other employee organizations who
have advocated for enhanced retirement benefits for their respective
groups to discuss the current process for qualifying for enhanced
benefits, as well as the rationales that law enforcement-related
personnel are using to seek enhanced benefits similar to those received
by LEOs. Further, we discussed potential effects of providing enhanced
retirement benefits to additional employee groups, such as potential
costs and possible reductions in attrition if providing such benefits
to other groups with DHS, DOJ, IRS, and OPM officials. We also reviewed
our reports that discuss fiscal stewardship. In addition, we met with
staff from the Merit Systems Protection Board (MSPB), the federal board
that adjudicates federal employees' appeals of personnel actions, such
as appeals from employees who believe they are entitled to LEO
coverage, to discuss their views and opinions on the current criteria
used to determine which federal personnel meet the statutory and
regulatory LEO definitions. However, as agreed upon with your offices,
we did not review the appropriateness of the statutory and regulatory
definitions relating to LEOs nor did we determine criteria for
evaluating the definitions or the determinations derived by the
processes used by various agencies in implementing the definitions.
Finally, we also discussed the use of human capital tools to retain law
enforcement and law enforcement-related personnel and the statutory and
regulatory definitions of a law enforcement officer with DHS, DOJ, and
IRS human capital officials. More detailed information on our scope and
methodology is contained in appendix I.
We conducted this performance audit from January 2008 through July
2009, in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Background:
Enhanced Retirement Benefits Have Been Extended to Various Groups over
Time:
Enhanced retirement benefits for certain law enforcement personnel
began in 1947, when legislation was enacted into law providing the
Federal Bureau of Investigation (FBI) Special Agents with a change in
qualification for retirement benefits to help the FBI better manage its
workforce.[Footnote 12] In 1948, legislation was enacted that expanded
the provision of enhanced retirement benefits to certain other federal
officers whose duties were primarily the investigation, apprehension,
or detention of persons suspected or convicted of offenses against the
criminal laws of the United States and to certain law enforcement
personnel who moved to a supervisory or administrative position.
[Footnote 13] In 1956, the enhanced retirement benefits definition was
amended to specifically include within the term "detention" the duties
of certain federal correctional employees, such as those in the Bureau
of Prisons.[Footnote 14] In 1974, legislation was enacted into law that
provided a statutory definition of a LEO for retirement purposes within
CSRS. This legislation also increased the accelerated annuity
multiplier and contained mandatory retirement provisions.[Footnote 15]
The enhanced benefits attempted to provide a LEO with a retirement plan
whereby it is economically feasible to retire at an earlier age with
fewer years of service than regular civil service employees. Such
benefits were also intended to assist the federal government with
encouraging the maintenance of a young and vigorous law enforcement
workforce through youthful career entry, continuous service, and early
separation. According to OPM actuaries, as of April 2009, one out of
five federal employees were covered by CSRS. At the end of fiscal year
2008, about 1.6 million persons were on the rolls of CSRS as retired
and approximately 42,500 (about 3 percent) were receiving LEO
retirement benefits.
In 1986, a new retirement system for federal employees, the Federal
Employees Retirement System (FERS), was established which, among other
things, included provisions relating to LEOs, such as a different
pension accrual formula, a mandatory LEO retirement age, and a related
requirement limiting LEO coverage to only those positions that are
physically demanding. More specifically, while the definition of a LEO
under FERS generally mirrors the definition under CSRS, the FERS
definition introduced and currently includes a rigorous duty standard.
This provides that LEO positions be limited to those positions that are
sufficiently rigorous that employment opportunities must be limited to
young and physically vigorous individuals, as determined by the
Director of OPM considering the recommendations of the employing
agency.[Footnote 16] In 1988, the FERS LEO definition was amended to
include two employee groups not determined by OPM to be covered by the
definition, the Department of Interior Park Police and the U.S. Secret
Service Uniformed Division. In general, neither the CSRS nor FERS LEO
definitions have been interpreted by OPM to cover federal police
officers.[Footnote 17] Implementing OPM regulations for CSRS and FERS
provide that the respective LEO regulatory definitions, in general, do
not include an employee whose primary duties involve maintaining order,
protecting life and property, guarding against or inspecting for
violations of law, or investigating persons other than those who are
suspected or convicted of offenses against the criminal laws of the
United States. At the end of fiscal year 2008, about 312,000 federal
employees were retired and receiving benefits covered by FERS, with
about 7,500 of them receiving LEO retirement benefits. Further
elaboration on the history of the LEO definition can be found in
appendix II.
Retirement Benefits Provided to Law Enforcement Personnel:
Generally, the retirement benefits received by federal LEO and other
law enforcement personnel receiving similar benefits are greater than
those provided to most other federal employees, albeit over a shorter
period of time due to mandatory retirement age. Under both CSRS and
FERS, the law provides for a faster accruing pension for LEOs than that
provided for most other federal employees. For example, CSRS LEO
pension benefits accrue at 2.5 percent times the number of years of
service for the first 20 years (50 percent) compared to an average of
less than 2 percent per year (36.25 percent for regular federal
employees) for that same 20 year period. At age 50 with 20 years of
service, a CSRS LEO's annuity is about 38 percent higher than the
annuity of a regular federal CSRS employee.[Footnote 18] Under FERS,
LEO benefits accrue at 1.7 percent per year for the first 20 years
compared to 1 percent per year for regular federal employees (34
percent versus 20 percent).[Footnote 19] Thus, for those under FERS,
the total defined benefit is 70 percent higher for LEOs than for other
federal employees at 20 years of service. See appendix III for
additional information on the accrual rates of LEOs and regular federal
employees.
The greater retirement benefits received by federal LEO and other law
enforcement personnel receiving similar benefits may be because as a
group, LEO occupations are higher graded than the more occupationally
diverse regular civil service employee occupations. They also may get
additional credit toward basic pay for annuity computation from special
pay provisions. For example, as shown in table 1 below, for those
persons retiring in fiscal year 2008, the estimated typical annuity of
an average LEO employee under FERS was over $17,000 more (more than
double) than that of an average non-LEO FERS annuitant.
Table 1: Retirement Benefits--LEO and Non-LEO Retirees Under CSRS and
FERS with Voluntary Retirement--Fiscal Year 2008:
Employee type: LEO FERS[B];
Number retiring: 1,266;
Average age when retiring: 53.3;
Average years of service: 24.5;
Estimated average annuity[A]: $33,264.
Employee type: Non-LEO FERS;
Number retiring: 15,141;
Average age when retiring: 63.2;
Average years of service: 20.9;
Estimated average annuity[A]: $15,754.
Employee type: LEO CSRS;
Number retiring: 881;
Average age when retiring: 53.6;
Average years of service: 29.8;
Estimated average annuity[A]: $59,910.
Employee type: Non-LEO CSRS;
Number retiring: 27,266;
Average age when retiring: 60.1;
Average years of service: 34.4;
Estimated average annuity[A]: $54,750.
Source: GAO analysis of OPM CPDF data.
[A] We computed estimated using CPDF average age, average years of
service, average 2008 salary data for fiscal year 2008 retirees and an
estimated average high-3 salary calculated by adjusting the 2008 salary
based on average cost of living increases for 2007 and 2006. Locality
cost of living increases were not included in the estimates. On
average, LEO CSRS retirees had salaries about $1,760 higher than Non-
LEO CSRS retirees. On average, LEO FERS retirees had salaries about
$18,400 higher than Non-LEO FERS retirees. FERS retirees also receive
income from their Thrift Savings Plan (TSP) accounts and Social
Security benefits that are not included in the estimated average
annuity. CSRS retirees do not receive Social Security benefits for
their federal service. The TSP is a retirement savings plan for
civilians who are employed by the United States government and members
of the uniformed services. CSRS retirees might have income from a TSP
account but the federal government does not match contributions to TSP
for CSRS employees. LEO annuities are understated because we did not
have data on availability pay and uncontrollable overtime to use when
estimating the annuity.
[B] Some LEOs retiring under FERS may also have time served under CSRS
with a higher annuity accrual rate that is not reflected in the
estimated annual annuity.
[End of table]
Along with the more rapid pension accrual, benefits are also generally
available to LEOs earlier than other employees with no penalties for
early retirement compared to the average federal employee under the
same retirement system; and more favorable treatment of cost of living
adjustments (under FERS).
LEO Enhanced Benefits Include Mandatory Retirement Provisions under
CSRS and FERS:
LEOs under both CSRS and FERS are subject to mandatory retirement
provisions, whereas most other federal civilian employees are not.
Specifically, as a means to maintain a youthful and vigorous workforce,
a law enforcement officer is subject to mandatory retirement when the
officer becomes 57 years of age or, in some cases, older than 57 if
needed to complete 20 years of service as a LEO. Both CSRS and FERS
personnel receiving LEO benefits may be retained for a short time
beyond the mandatory retirement age under certain circumstances.
[Footnote 20]
While allowing for an individual to obtain the full 20 years of
coverage needed to qualify for LEO benefits, agencies also set maximum
entry age requirements for LEOs based on the age and service
requirements for LEO mandatory retirement. Thus, maximum entry age is
typically 37 because it allows an employee to achieve 20 years of LEO
service at age 57. Some agencies have extended their maximum hiring age
for LEOs to around 40 to facilitate the hiring of certain highly-
skilled armed services veterans who have completed a military career.
For example, CBP has implemented a maximum entry age of 40 for its
Border Patrol Agent positions.[Footnote 21]
Special Pay Provisions Provided to LEOs and Law Enforcement-Related
Personnel:
In addition to retirement benefits, the pay of law enforcement
personnel also varies. In general, federal white-collar jobs are
assigned a General Schedule (GS) grade. Grades represent level of
difficulty, responsibility, and qualifications required of the person
who fills that job. Pay varies within a grade level on the basis of 10
steps; employees receive step increases within a grade if they perform
acceptably and have satisfied the waiting period requirement
established for each step. LEOs within the GS system are entitled to
higher rates of basic pay at grades GS-3 through GS-10, which increase
pay by 3 to 23 percent above the normal federal government general
schedule depending on grade level[Footnote 22]. Some LEOs are also
entitled to law enforcement availability pay or administratively
uncontrollable overtime pay. Availability pay is a regular supplement
equal to 25 percent of the recipient's adjusted rate of basic pay,
subject to premium pay limitation[Footnote 23]s. It is compensation
generally fixed at 25 percent of the rate of basic pay for the position
for the first 2 overtime hours on a regular workday and for additional
irregular overtime hours. At agency discretion, certain employees may
receive administratively uncontrollable overtime pay equal to 10
percent to 25 percent of their basic pay, with most recipients
receiving a rate of 25 percent based on working an average of at least
9 hours of irregular overtime hours per week. Both availability pay and
administratively uncontrollable overtime pay are to be counted as basic
pay for computation of annuities, and as a result can increase the
dollar value of an individual's highest 3 earning years which are used
to compute the annuity benefit amounts.
In 2003, OPM established special rates for many GS police officers not
considered to be LEOs by definition, because their primary duties
involved maintaining order and protecting life and property as opposed
to primarily involving the investigation, apprehension, or detention of
individuals suspected or convicted of offenses against the criminal
laws of the United States, which is a criterion in the definition.
These special rates provide large increases at lower grades similar to
the LEO special rates. At some grades and locations, the police special
rates exceed the locality adjusted rates for LEOs at grades GS-3
through GS-10. As of fiscal year 2008, there were approximately 2,800
law enforcement personnel receiving special pay rates, without
receiving enhanced retirement benefits. For additional information on
some of the various pay systems that cover law enforcement personnel,
see appendix IV.
Enhanced Retirement Benefits Have Been Granted through OPM and Agency
Administrative Processes as Well as through Separate Legislation for
Select Employee Groups:
Before a group of employees may receive enhanced retirement benefits
through the administrative process, agencies must make an
administrative determination whether this group meets the statutory and
regulatory definitions relating to a LEO and submit it for OPM's
determination. In recent years, several employee groups and unions
representing law enforcement-related personnel who have not been found
by their employing agencies and OPM to meet the applicable LEO
definitions have sought to obtain enhanced retirement benefits directly
through separate legislation.
Under the Administrative Process, Agencies and OPM Determine Which
Employee Groups Meet the Statutory and Regulatory LEO Definitions and
Are to Receive Enhanced Retirement Benefits:
As part of the administrative process, agencies with law enforcement
missions determine which occupations or employee groups are necessary
for accomplishing their missions, taking into account the agency's
overall authorized level of resources and appropriations. As part of
this determination, an agency head decides whether a particular
position should be approved for LEO retirement coverage.[Footnote 24]
If an agency determines the need for new positions that meet the
statutory and regulatory definitions relating to a LEO (and therefore
could receive enhanced retirement benefits, special pay, or salary
provisions, and be subject to a mandatory retirement age), the agency
sends a notice to OPM.[Footnote 25] This notice is to consist of, for
example, the title of the position, the number of incumbents, whether
the position is a supervisory or administrative position, whether it is
a rigorous position, and the maximum entry age of the position. With
certain exceptions, OPM may, at its discretion, review the position
description to determine if it meets certain aspects of the statutory
LEO definition. According to OPM officials, there is no requirement for
a discussion between the agency head and OPM prior to an agency head's
decision and the issuance of a notice about such an administrative
determination to OPM. OPM officials also stated that OPM has received
hundreds of LEO retirement coverage notices covering probably thousands
of positions over the last 10 years, reviewing about six position
descriptions a month. OPM officials stated that OPM rarely overrules an
agency head's decision, but maintains the authority to do so. OPM
officials noted a case in the late 1990s in which they had reviewed the
Secretary of Energy's decision to grant Nuclear Materials Couriers LEO
status and accompanying benefits and overturned the Secretary's
decision because these positions did not meet the applicable LEO
definitions.[Footnote 26] OPM officials, however, could not provide us
with data on how often OPM overrules an agency head's decision for
granting LEO status and retirement benefits. As of fiscal year 2008,
approximately half of federal employees receiving enhanced retirement
benefits have been found to meet the applicable LEO definitions and are
accruing such benefits as a result of the administrative process.
Select employee groups that have been found to meet the LEO definitions
and receive enhanced retirement benefits through agency determinations
and OPM's administrative process are shown in table 2.
Table 2: Select Employee Groups That Have Been Found to Meet the LEO
Definitional Criteria and Receive Enhanced Retirement Benefits through
OPM's Administrative Process:
Employee group[A]: Border Patrol Agents;
Department: DHS;
Agency: CBP;
Occupation series: 1896;
September 2008 total: 17,300.
Employee group[A]: FBI Special Agents;
Department: DOJ;
Agency: FBI;
Occupation series: 1811;
September 2008 total: 12,700.
Employee group[A]: Immigration Enforcement Agents and Detention/
Deportation Officers;
Department: DHS;
Agency: Immigration and Customs Enforcement;
Occupation series: 1801,1811;
September 2008 total: 11,600.
Employee group[A]: Drug Enforcement Administration (DEA) Special
Agents;
Department: DOJ;
Agency: DEA;
Occupation series: 1811;
September 2008 total: 4,900.
Employee group[A]: U.S. Marshals;
Department: DOJ;
Agency: U.S. Marshals Service;
Occupation series: 0082,1811,1802;
September 2008 total: 3,500.
Employee group[A]: U.S. Secret Service Special Agents;
Department: DHS;
Agency: U.S. Secret Service;
Occupation series: 1811;
September 2008 total: 3,300.
Employee group[A]: IRS Special Agents;
Department: Department of the Treasury;
Agency: IRS;
Occupation series: 1811;
September 2008 total: 2,600.
Employee group[A]: U.S. Park Rangers[B];
Department: Department of the Interior;
Agency: National Park Service;
Occupation series: 0025;
September 2008 total: 1,300.
Employee group[A]: Federal Air Marshals;
Department: DHS;
Agency: Transportation Security Administration;
Occupation series: 1801;
September 2008 total: Sensitive Security Information.
Source: GAO analysis of OPM's CPDF data.
[A] The list of these employee groups is not comprehensive.
[B] Not all U.S. Park Rangers meet the statutory definition of a LEO.
[End of table]
If individual employees feel that they have been wrongly excluded from
LEO retirement provisions, the employee may, for example, appeal the
final decision of an agency denying an individual's request for
approval of a position as rigorous, to the MSPB. [Footnote 27]
According to MSPB officials, they periodically review employee appeals
related to LEO coverage but noted that the number of such appeals has
decreased in the last couple of years. The employee may also appeal the
final decisions of MSPB to the U.S. Court of Appeals for the Federal
Circuit.
Overall, at the department level, DHS and DOJ human capital officials,
as well as IRS officials, supported the use of the administrative
process for determining who meets the LEO definitions and who receives
LEO retirement benefits because they felt this process worked well and
met the needs of their departments.
Employee Groups Have Sought Enhanced Retirement Benefits Directly
through Legislation:
Employee groups who have not been determined to meet the definitions of
a LEO but believe they deserve similar benefits have sought these
benefits directly through legislative action.[Footnote 28] For example,
as noted above, Nuclear Materials Couriers were denied LEO status by
OPM but, with support from the Department of Energy, were eventually
provided with enhanced retirement benefits similar to those received by
LEOs directly through legislation.[Footnote 29] In most cases, the
recent efforts of those employee groups seeking enhanced retirement
benefits have been led by unions or other organizations representing
the interested employee groups, not the employing agencies. The
employing departments and agencies generally have determined that the
groups seeking LEO benefits through direct legislation do not meet the
LEO definitions and do not qualify for the benefits. For example,
various pieces of legislation were introduced in the 110th Congress
that would have provided such benefits to approximately 25,000
additional employees. These employees include certain federal police
who have not been found to meet the statutory LEO definition, Assistant
U.S. Attorneys, CBP Agriculture Inspectors, and IRS Revenue Officers.
[Footnote 30]
In discussions with DHS human resource officials about their views on
additional employee groups seeking enhanced retirement benefits
directly through legislation, they expressed concern regarding such
proposals. Human resources officials of the Justice Management Division
(JMD) of DOJ stated that they found such proposals problematic due to
high, unfunded costs and the fact that the positions do not meet the
statutory definition of law enforcement officer. Specifically, in
reference to proposed legislation that would have provided enhanced
retirement benefits to Assistant U.S. Attorneys, these officials stated
that the duties of Assistant U.S. Attorney positions are not primarily
the investigation, apprehension, or detention of individuals nor
related to the protection of officials of the United States against
threats to personal safety. DOJ JMD officials added that Assistant U.S.
Attorney duties also do not require young and vigorous personnel which
is essential to a law enforcement officer workforce[Footnote 31]. As of
fiscal year 2008, approximately half of law enforcement personnel
receiving enhanced retirement benefits did not receive these benefits
through the application of the LEO definitional criteria from their
employing agency and OPM via the administrative process, but received
these benefits directly through legislation that either (1) provided
benefits similar to those received by LEOs or (2) added their
occupation to the statutory LEO definition. Select employee groups
receiving enhanced retirement benefits through these two ways are
listed in table 3.
Table 3: Select Employee Groups' Currently Receiving Enhanced
Retirement Benefits Directly through Legislation by Occupation Series,
Fiscal Year 2008 Population, and Year of Legislation:
Employee group: Bureau of Prisons Correction Institute Staff;
Department: DOJ;
Agency: Bureau of Prisons;
Occupation series: Multiple;
Year authority for benefits provided: 1956;
September 2008 population: 35,500.
Employee group: U.S. Secret Service Uniformed Division;
Department: DHS;
Agency: U.S. Secret Service;
Occupation series: 0083;
Year authority for benefits provided: 1988;
September 2008 population: 1,250.
Employee group: Park Police;
Department: Dept. of Interior;
Agency: National Park Service;
Occupation series: 0083;
Year authority for benefits provided: 1987;
September 2008 population: 500.
Employee group: Nuclear Materials Couriers;
Department: Dept. of Energy;
Agency: [Empty];
Occupation series: 0084;
Year authority for benefits provided: 1998;
September 2008 population: 360.
Employee group: CBP Officers[A];
Department: DHS;
Agency: CBP;
Occupation series: 1896;
Year authority for benefits provided: 2008;
September 2008 population: 19,600.
Source: GAO analysis of OPM's CPDF data and GAO legal analysis.
Note: U.S. Capitol Police and U.S. Supreme Court Police (occupation
series 0083) received enhanced retirement benefits through legislation
in 1990 and 2000, respectively. However, data on these groups are not
found within the CPDF (which covers executive branch personnel) and,
therefore, are not included in this analysis.
[A] Prior to the Consolidated Appropriations Act, 2008, some CBP
Officers were classified under occupation series 1811 and, therefore,
were considered LEOs and received enhanced retirement benefits. The
number of these officers is not reflected in table 3.
[End of table]
Employee Groups Cite Various Rationales for Seeking Enhanced Retirement
Benefits through Legislation; Considering Supporting Data for
Rationales, Additional Costs, and Other Implications Could Inform
Decisions:
Law enforcement-related employee groups that sought enhanced retirement
benefits directly through legislation have cited the reduction of high
attrition rates as a primary rationale for granting such benefits to
those not currently receiving them. Other reasons cited include the
need to provide equitable benefits to groups performing similar duties
and how changing duties may have put the employees at more risk.
Although data exist that could provide some insight into attrition in
the federal workforce as a means to inform decisions on retirement
benefits, the groups requesting these benefits have not consistently
provided this data to us. The additional short-term costs to a federal
agency for providing enhanced retirement benefits for LEOs under FERS
is higher than the costs of providing benefits to regular federal
employees, raising questions about the ability of agencies to cover
increased costs if additional employee groups receive such benefits. In
addition, while the long-term costs to the federal government of
providing enhanced LEO or similar retirement benefits for CSRS-covered
staff are important, such costs are not included in the Congressional
Budget Office scoring process.[Footnote 32] Finally, providing enhanced
retirement benefits to certain employee groups directly through
legislation has created perceived inequities across certain law
enforcement-related occupations and some agencies report that future
action to provide enhanced retirement benefits to certain employee
groups could affect their strategic workforce planning.
Limited Evidence Is Provided to Support the Primary Rationale of the
Additional Employee Groups Seeking Enhanced Retirement Benefits because
Various Factors Influence Attrition:
In their petitions seeking benefits outside of OPM's administrative
process, organizations have cited a number of rationales for providing
enhanced retirement benefits to the employees they represent. The
primary rationale used by additional groups seeking benefits is that
law enforcement-related personnel have high rates of attrition because
they are not currently receiving enhanced retirement benefits. However,
when we asked the employee groups and unions seeking enhanced
retirement benefits for those they represent for data to substantiate
this rationale, they did not consistently provide these data. To
examine the validity of this rationale, we analyzed attrition rates by
law enforcement status governmentwide to determine if a relationship
between attrition rates and enhanced retirement benefits exists.
[Footnote 33] According to our analysis of CPDF data, law enforcement-
related personnel not receiving enhanced retirement benefits typically
have higher attrition rates than those law enforcement personnel
receiving LEO or similarly enhanced retirement benefits, but lower than
the attrition rates for general federal government employees.
Specifically, the average government-wide attrition rate from fiscal
years 2004 through 2008 for law enforcement-related personnel not
receiving enhanced retirement benefits was 4.7 percent, compared to 3.2
percent for law enforcement personnel receiving enhanced retirement
benefits and 3.5 percent for law enforcement-related personnel who
received special pay and no enhanced retirement benefits.[Footnote 34]
The average governmentwide attrition rate for all other federal
personnel (those not employed in law enforcement or related
occupations) was 5.4 percent, higher than all of the governmentwide
averages for law enforcement and related personnel. Figure 1, below,
illustrates these comparative trends.
Figure 1: Governmentwide Attrition Rates for Law Enforcement and
Related Personnel, Fiscal Years 2004 through 2008 by Retirement
Category:
[Refer to PDF for image: multiple vertical bar graph]
Fiscal year: 2004;
Attrition rate, LEO Retire: 2.6%;
Attrition rate, Law-Related: 4.5%;
Attrition rate, Law-Related Pay: 2.5%;
Attrition rate, Other Personnel: 6%.
Fiscal year: 2005;
Attrition rate, LEO Retire: 2.5%;
Attrition rate, Law-Related: 4.2%;
Attrition rate, Law-Related Pay: 2.5%;
Attrition rate, Other Personnel: 4.8%.
Fiscal year: 2006;
Attrition rate, LEO Retire: 3.2%;
Attrition rate, Law-Related: 4.3%;
Attrition rate, Law-Related Pay: 3.7%;
Attrition rate, Other Personnel: 5.2%.
Fiscal year: 2007;
Attrition rate, LEO Retire: 3.9%;
Attrition rate, Law-Related: 4.8%;
Attrition rate, Law-Related Pay: 3.4%;
Attrition rate, Other Personnel: 5.5%.
Fiscal year: 2008;
Attrition rate, LEO Retire: 3.8%;
Attrition rate, Law-Related: 5.5%;
Attrition rate, Law-Related Pay: 5.6%;
Attrition rate, Other Personnel: 5.2%.
Source: GAO analysis of OPM data.
Note: LEO retire refers to law enforcement personnel receiving enhanced
retirement benefits; Law-related refers to law-enforcement related
personnel not receiving enhanced retirement benefits; Law-related pay
refers to law-enforcement related personnel receiving special pay and
not enhanced retirement benefits; and Other personnel refers to all
other federal personnel that are not employed in law enforcement or
related occupations.
[End of figure]
Further, our analysis revealed the following:
* Attrition rates vary by department and are influenced by type of
occupation, challenging work conditions, and other factors. For
example, the average attrition rates from fiscal years 2004 through
2008 for law enforcement-related personnel not receiving enhanced
retirement benefits for DHS and DOJ were 4.1 percent and 3.5 percent,
respectively, while the average attrition rates for law enforcement
personnel receiving such benefits for DHS and DOJ were 4.8 percent and
2.2 percent, respectively.[Footnote 35] This difference in the average
attrition rates for those law enforcement personnel receiving enhanced
retirement benefits may be attributed to the types of occupations and
their associated law enforcement-related functions. For example, DHS
officials attributed some of the attrition within one of its component
agencies, CBP, to the challenging work of some personnel, especially
those stationed at remote U.S. border locations. In comparison, DOJ
officials reported a high degree of employee satisfaction in the FBI
Special Agent occupation, but some attrition challenges in relocating
agents to high-cost urban areas or other undesirable areas. However,
the FBI Police, consisting of approximately 250 officers, has
experienced relatively high level of attrition in comparison to the
department. Specifically, the average attrition rate of FBI Police in
fiscal year 2008 was approximately 17 percent, which is more than 5
times higher than DOJ's average.[Footnote 36] Meanwhile, the Department
of the Treasury's law enforcement and law enforcement-related personnel
have lower average attrition rates than similar personnel groups within
DHS and DOJ. For example, the average attrition rate from fiscal years
2004 through 2008 for law enforcement-related personnel not receiving
enhanced retirement benefits was 2.0 percent while the average
attrition rate for law enforcement personnel receiving such benefits
was 1.7 percent. For more information on the attrition rates by year
and by department, see appendix V.
* Attrition was higher for those law enforcement and law enforcement-
related personnel with fewer years of service. For example,
governmentwide, the attrition rate for federal personnel with less than
5 years of service was 11.1 percent and the attrition rate for those
with 5 or more years of service was 3.8 percent for fiscal year 2008.
This trend remains consistent across law enforcement and related
personnel and those departments employing the majority of these
personnel. Law enforcement personnel receiving enhanced retirement
benefits with less than 5 years of service had a 10.4 percent attrition
rate, while those with 5 or more years of service had a 2.2 percent
attrition rate for fiscal year 2008. Because the attrition rates are
consistently higher for those with less than 5 years of service, the
percentage of these personnel within a workforce may also affect the
overall attrition rates. For example, in fiscal year 2008 personnel
with less than 5 years of service accounted for approximately 34
percent and 17 percent of total personnel within the DHS and DOJ,
respectively. The DHS-wide rate of attrition may be higher than the DOJ-
wide rate of attrition for all personnel because DHS has a higher
percentage of personnel with less than 5 years of service than does DOJ
and those with less service have higher attrition. Both DHS and DOJ
officials at the department level were aware that they have higher
attrition among groups of employees with less than 5 years of service,
but neither DHS nor DOJ officials indicated that this attrition was
hindering their ability to meet their mission.
* The majority of law enforcement-related personnel moving to other
agencies are not receiving enhanced retirement benefits as a result of
that move. For example, from fiscal years 2004 through 2007,
approximately 6,500 law enforcement-related personnel moved between
federal agencies. As shown in figure 2, 54 percent remained in federal
law enforcement-related occupations that do not receive enhanced
retirement benefits, 18 percent moved into law enforcement occupations
that do garner such benefits, and 27 percent moved into non-law
enforcement-related occupations.[Footnote 37]
Figure 2: Governmentwide Moves among Law Enforcement-Related Personnel
Not Receiving Enhanced Retirement Benefits, Fiscal Years 2004 through
2007 by Retirement Category:
[Refer PDF for image: pie-chart]
To law enforcement-related with special pay: 1.4%;
To LEO with enhanced retirement benefits: 17.7%;
To non-law enforcement or related: 27.2%;
To other law enforcement-related: 53.8%.
Source: GAO analysis of OPM data.
Note: The percentages in this figure do not add to 100 percent due to
rounding.
[End of figure]
Overall, our analysis shows that the attrition rates vary when analyzed
by different categories and factors (governmentwide, departmentwide,
and by years of service). However, our analysis could not link
attrition levels with the presence or absence of enhanced retirement
benefits. This is consistent with what we reported with respect to
metropolitan D.C. federal police forces. Specifically, in June 2003 we
reported that no clear pattern existed regarding turnover among D.C.
police forces receiving federal law enforcement retirement benefits and
those receiving traditional retirement benefits.[Footnote 38] Also,
analyzing the trends in data alone does not determine whether the
attrition rates for law-enforcement personnel are too high or
problematic for the agencies or whether the rates are acceptable and
manageable through the use of human capital tools.
However, for current and future data analysis, OPM has recently
developed and implemented a new tool, the Enterprise Human Resource
Integration (EHRI) program, which involves a standardized and
centralized collection of federal personnel data that can be queried
and analyzed for specific personnel. Using the analytic tools
accompanying EHRI, executive branch departments and agencies can
analyze their own data on attrition or seek OPM's assistance in
providing such analysis.[Footnote 39] However, analyzing attrition data
alone may not fully indicate why personnel are leaving a particular
agency because, as we have previously reported, a variety of
organizational, personal, and economic factors, in addition to
compensation, influence separation decisions.[Footnote 40]
Two additional rationales offered by organizations advocating for
enhanced retirement benefits for law enforcement related employees are
that (1) employees are performing duties that are similar to those of
law enforcement employee groups receiving enhanced retirement benefits;
or (2) employees are performing high-risk duties related to homeland
security activities, such as guarding the northern and southern borders
from those illegally trying to enter the U.S. For example,
representatives from DOJ's Executive Office of U.S. Attorneys stated
that, in addition to addressing retention challenges, Assistant U.S.
Attorneys should be afforded enhanced retirement benefits similar to
those received by LEOs because of the risks they encounter working with
defendants that are in pretrial status as well as convicted criminals.
In addition, officials from the Executive Office of U.S. Attorneys
noted that Assistant U.S. Attorneys work closely with law enforcement
personnel who already receive such benefits. We did not address the
validity of these rationales because we did not do a detailed analysis
and comparison of the duties of the wide variety of different groups of
employees who perform law enforcement-related functions across various
agencies.
Costs of Providing Enhanced Retirement Benefits to Law Enforcement
Personnel are Generally Higher Than Those for Regular Federal
Employees:
Overall, the short-term costs to a federal agency for providing
enhanced retirement benefits for law enforcement personnel under FERS
are higher than providing retirement benefits to regular federal
employees. As illustrated in Table 4 below, the mandatory agency
contribution to the retirement fund for a LEO under FERS is 13.7
percent of basic pay more than for a regular FERS employee and 0.5
percent more for a LEO under CSRS than for a regular CSRS employee.
[Footnote 41]
Table 4: Differences in Agency and Employee Contributions to Retirement
Funds for Regular Federal Employees versus Law Enforcement Personnel:
Retirement contributions-employee;
CSRS regular employee: 7 percent of basic pay;
CSRS law enforcement personnel: 7.5 percent of basic pay;
FERS regular employee: 0.8 percent of basic pay;
FERS law enforcement personnel: 1.3 percent of basic pay.
Retirement contributions-agency;
CSRS regular employee: 7 percent of basic pay;
CSRS law enforcement personnel: 7.5 percent of basic pay;
FERS regular employee: 11.2 percent of basic pay[A];
FERS law enforcement personnel: 24.9 percent of basic pay[A].
Source: GAO analysis of OPM information.
[A] Agencies also pay the employer portion of Social Security as well
as a Thrift Savings match.
[End of table]
According to DHS and DOJ officials, if enhanced retirement benefits are
provided directly through legislation, the department or component
agencies may not have the resources immediately available to cover
their increased contributions, and could likely seek additional funds
for this purpose. For example, when CBP Officers were granted enhanced
retirement benefits directly through legislation in CBP's fiscal year
2008 appropriations act,[Footnote 42] congressional appropriators
directed $50 million for fiscal year 2008 to help the agency implement
the legislation.[Footnote 43] In addition, congressional appropriators
directed an additional $200 million for fiscal year 2009 to cover the
increased agency contributions to the retirement system.[Footnote 44]
This results in approximately $10,000 more per position for fiscal year
2009.[Footnote 45] In addition to the agency contribution costs, CBP
officials stated that they incurred other expenses during the
conversion process, including staffing and training costs. In
subsequent years, CBP officials stated that they plan to include these
increased costs in their annual budget requests. Specifically, for the
fiscal year 2010 budget request, CBP's Office of Finance included $225
million for the additional retirement benefits for that year. In
contrast, 2002 legislation was enacted into law providing that the
Director of the FBI may establish a permanent police force, with
enhanced retirement benefits, to be known as the FBI Police.[Footnote
46] However, according to the FBI, due, in part, to lack of funding to
support this action, the FBI has not implemented these provisions and
these benefits have not been provided. [Footnote 47]
The majority of those personnel who may seek enhanced retirement
benefits in the future are covered under FERS and, therefore, would
have most of the costs of their enhanced benefits covered by increased
agency contributions.[Footnote 48] However, there are potential,
unfunded long-term costs to the pension system of providing such
benefits to any additional law enforcement personnel who are covered
under CSRS. At the end of fiscal year 2008, approximately 51,000
federal personnel performing some law enforcement-related activities
were not receiving enhanced retirement benefits. During the 110th
Congress, at least six pieces of legislation were introduced, but not
enacted into law, which would have extended enhanced retirement
benefits to approximately 25,000 additional employees. Specifically,
these various pieces of legislation would have provided enhanced
retirement benefits similar to those received by LEOs to thousands of
federal police not currently receiving LEO or similarly enhanced
retirement benefits, as well as Assistant U.S. Attorneys and others.
The cost for providing enhanced retirement benefits to the groups
covered by CSRS and FERS under these pieces of legislation would have
been approximately $250 million for 1 fiscal year.[Footnote 49] The
long-term costs to the federal government for providing FERS employee
pensions would be accounted for in higher agency contributions by the
employing agency (and an additional 0.5 percent from individuals).
However, this is not the case for CSRS employees and the long-term
costs to the federal government of providing enhanced LEO or similar
retirement benefits for CSRS staff are not acknowledged directly by the
Congressional Budget Office process, or the requesting groups that
sought additional benefits.
According to OPM's actuaries, they do, upon request, provide estimates
of the effects of retirement coverage changes on the Civil Service
Retirement and Disability Fund.[Footnote 50] Specifically, as table 4
illustrates, agencies pay an additional 0.5 percent contribution for
CSRS-covered LEO staff over regular federal employees (7.5 percent
versus 7 percent) and LEO staff make a similarly increased contribution
as well. However, the cost to the government of CSRS retirement
benefits is greater than those combined agency and staff contributions.
[Footnote 51] Each CSRS position represents an unfunded liability to
Treasury and CSRS LEOs represent a greater unfunded liability than
regular employees because the contributions do not meet the costs
associated with benefits.
In January 2007 and again in December 2007 we reported on the
importance of making policy decisions that take into consideration the
need for fiscal stewardship.[Footnote 52] Specifically, at that time we
reported on the challenge facing Congress in making fiscally
responsible policy decisions given our nation's growing fiscal
imbalance. Although there is no question that law enforcement and
related personnel play an invaluable role in securing this nation,
granting enhanced retirement benefits to additional employee groups may
or may not be the most cost-efficient solution for retaining this
population. The federal government has many human capital tools that
can be used to address attrition, which we discuss later in this
report.
Awarding Retirement Benefits Directly through Legislation Has Potential
Implications on Federal Agencies and Other Employee Groups Performing
Law Enforcement-Related Duties:
While providing enhanced retirement benefits to additional employee
groups directly through legislation has been used as an alternative to
OPM's administrative process, doing so has also resulted in some
perceived inequities across certain federal occupations. For example,
under OPM implementing regulations, federal police officers are
generally excluded from the regulatory definition of a LEO to receive
enhanced retirement benefits.[Footnote 53] However, four federal agency
police departments were provided with enhanced retirement benefits
directly through legislation (Park Police, U.S. Secret Service
Uniformed Division, Capitol Police, and Supreme Court Police)[Footnote
54] while others do not receive such benefits (e.g. Veterans Affairs
Police). DOJ officials at the department level expressed concern about
the potential disparity in benefits provided to their personnel when
other employee groups are provided with enhanced retirement benefits
directly through legislation. In addition, some Detection Enforcement
Officers within CBP Air and Marine Air Interdiction who do not receive
enhanced retirement benefits told us that they are not being treated
fairly in relationship to their co-workers who seemingly perform
similar mission critical duties and are exposed to similar risks, but
who receive enhanced retirement benefits.
Providing additional employee groups with enhanced retirement benefits
could also affect an agency's strategic workforce planning. In the
past, we have called on agencies to develop a long-term strategic
workforce plan that considers the unique number, type, and competency
levels of employees needed for the agency to meet its mission in the
long run and the strategies it will use to recruit, hire, train, and
retain these employees.[Footnote 55] As part of this planning process,
agencies are to determine tools they will, and can afford to, use to
achieve their plan. Strategic workforce planning also focuses on
developing long-term strategies for acquiring, developing, and
retaining an organization's total workforce to meet the needs of the
future. In 2002, we reported that each agency needs to ensure that its
human capital program capitalizes on its workforce's strengths and
addresses related challenges in a manner that is clearly linked to
achieving the agency's mission and goals.[Footnote 56] Thus, it is
through its strategic workforce planning that an agency would determine
the number, types, and duties of law enforcement personnel needed to
perform its mission; whether it has any challenges recruiting or
retaining personnel for these positions and, if so, what are the most
cost-efficient tools it can use to address these challenges, such as
retention incentives; and how to manage all of this within the agency's
available budget.
When unions or employee groups seek legislation for enhanced retirement
benefits outside of an agency's strategic workforce planning process,
it could, according to DHS and DOJ human resource officials, affect the
workforce strategies and resources an agency has devised. Individuals
who become LEOs can also qualify for certain special pay provisions,
availability pay, or administratively uncontrollable overtime pay.
[Footnote 57] Such provisions may affect other payroll and matching
benefit costs not accounted for in agencies' workforce plans. According
to DHS and DOJ human resource officials, whose departments represent
the majority of law enforcement and related personnel, their
departments' strategic workforce planning may be affected if additional
employee groups were provided with enhanced retirement benefits
directly through legislation, especially if the departments were not
allocated additional funds.
Using Human Capital Tools Could Offer A More Cost Efficient Alternative
Than Granting Enhanced Retirement Benefits For Retaining Select Law
Enforcement Related Personnel:
Federal agencies, including those that employ law enforcement and law
enforcement-related personnel, such as DOJ, DHS, and Treasury, can use
a variety of human capital tools, such as student loan reimbursements
and monetary retention incentives, to retain such personnel. However,
DOJ and DHS officials at the department level stated that these tools
are currently used to a limited extent due to a lack of sustained and
available funding. Because such tools were specifically designed to
address retention issues, these tools could provide a cost-efficient
alternative to granting enhanced retirement benefits for those employee
groups that seek such benefits directly through legislation and cite
retention as the primary rationale.
In June 2004, we defined human capital tools as the policies and
practices that an agency can implement in managing its workforce to
accomplish its mission.[Footnote 58] These tools can relate to
recruitment, retention, compensation, position classification,
incentive awards, training, performance management, and work-life
policies, among others. For example, a federal agency may award a
recruitment incentive to attract new employees or provide a relocation
incentive to a current employee moving to a different geographic
location to accept a position that the employing agency has deemed hard
to fill.[Footnote 59] In addition, an agency may pay a retention
incentive to keep a current employee if the agency determines that the
employee is has unusually high or unique qualifications or if the
agency has a special need for the employee's services, making retention
of the employee essential, and if the employee would be likely to leave
the federal service in the absence of the incentive.[Footnote 60] Table
5 below provides details on key human capital tools officials from DHS,
DOJ, and the IRS told us they use to retain law enforcement and law
enforcement-related personnel.
Table 5: Human Capital Tools and Special Pay Utilized by DHS, DOJ, and
the IRS to Retain Law Enforcement and Law Enforcement Related
Personnel:
Retention tool or benefit: Retention incentives;
Description of retention tools and benefits: Continuing (i.e., biweekly
or lump sum) payments of up to 25 percent of basic pay that an agency
may pay to help retain an employee. In return, the employee must sign a
service agreement with the agency if paid in other than biweekly
payments. The eligible employee must have unusually high or unique
qualifications or the agency must have a special need for the
employee's service and the employee must be likely to leave the federal
service.
Retention tool or benefit: Relocation incentives;
Description of retention tools and benefits: Payments an agency may pay
to a current employee who must relocate to accept a position in a
different geographic location that would otherwise be difficult to
fill. In return, the employee must sign a service agreement with the
agency. Incentive payments cannot exceed 25 percent of annual basic pay
multiplied by the number of years in a service period (not to exceed 4
years).
Retention tool or benefit: Student loan reimbursement;
Description of retention tools and benefits: The federal student loan
repayment program permits agencies to repay federally insured student
loans for candidates or current employees of the agency.
Retention tool or benefit: Foreign language award;
Description of retention tools and benefits: A monetary award paid for
law enforcement agents with foreign language skills.
Retention tool or benefit: Special rate or critical position pay;
Description of retention tools and benefits: A special rate is a rate
of basic pay for employees in hard to fill or hard to retain
occupations nationwide or in specific locations. Critical position pay
is a rate of pay greater than would otherwise be payable for the
employee's position because the position has been designated critical.
Retention tool or benefit: Alternative work schedules or job sharing;
Description of retention tools and benefits: Agencies may establish
hours of work and scheduling flexibilities to replace the traditional
schedules of 8 hours per day and 40 hours per week, such as full-time
and part-time, overtime hours, and flexible work schedules. Job sharing
is a form of part-time employment in which one position is filled with
two or more part-time employees.
Retention tool or benefit: Administratively uncontrollable overtime;
Description of retention tools and benefits: As previously noted,
certain employees may receive administratively uncontrollable overtime
pay equal to 10 percent to 25 percent of their basic pay. Most
recipients receive a rate of 25 percent based on working an average of
at least 9 hours of irregular overtime hours per week.
Retention tool or benefit: Availability pay;
Description of retention tools and benefits: Criminal investigators and
certain similar law enforcement employees generally are entitled to
receive law enforcement availability pay equal to 25 percent of their
rate of basic pay. Availability pay is compensation for (1) all
irregular overtime hours, (2) any regularly scheduled overtime hours
that are part of the first 2 overtime hours on any regular workday, and
(3) certain nonwork hours during which an employee is placed in
availability status.
Source: GAO analysis of information provided by OPM, DHS, DOJ, and
Treasury.
[End of table]
Officials in some DHS and DOJ component agencies as well as the IRS
that employ LEOs report that they use human capital tools to retain
personnel effectively. For example, according to officials from DOJ's
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), they use a
variety of human capital tools, such as a Foreign Language Award
Program and Health Improvement Program,[Footnote 61] with some success
to retain their agents already receiving enhanced retirement benefits.
Officials from the IRS's Criminal Investigation Division, whose
employees receive LEO retirement benefits, stated that they use
retention incentives to retain corporate knowledge and expertise with
some success. In addition, within DHS, the U.S. Secret Service provides
retention and foreign language bonuses to retain LEOs.
Officials from some DHS and DOJ component agencies that employ law
enforcement-related personnel also stated that they used human capital
tools to retain such staff. However, these officials stated that they
are continuing to experience some retention challenges for certain
types of these personnel, even though they are utilizing human capital
tools, to varying degrees, in an effort to retain them. Specifically,
according to FBI Police officials, they are facing difficulties
retaining their police force of 241 officers (as of August 2008),
despite their use of human capital tools, such as student loan
reimbursements. FBI Police officials noted that their agency loses a
number of police officers to other positions within the FBI,
particularly to the Special Agent position, which provides enhanced
retirement benefits. FBI Police officials also said that it takes
approximately 7 to 9 months to bring on a new police officer due to the
detailed testing and background check required. Therefore, even a small
amount of attrition would have an impact on the FBI Police's ability to
meet its mission. Similarly, according to the Director of DOJ's
Executive Office of U.S. Attorneys (EOUSA), the office is using
retention incentives, student loan reimbursements, and monetary rewards
up to $7,500, but acknowledged that it is a challenge to retain their
approximately 5,300 Assistant U.S. Attorneys, especially mid-career-
level attorneys who could earn more money in the private sector,
particularly in some major metropolitan areas. Officials from the FBI
Police and EOUSA stated that they believe providing such personnel with
enhanced retirement benefits may be an option for addressing their
current retention challenges.
Although some DOJ component agency officials cited challenges retaining
their staff, DOJ JMD human resource officials stated that they do not
feel that they face challenges retaining law enforcement-related
personnel and would not support these personnel seeking enhanced
retirement benefits directly through legislation. DOJ JMD human
resource officials highlighted the fact that the department's average
overall attrition rate from fiscal years 2004 through 2008 for law
enforcement-related personnel (3.5 percent) is lower than average for
all of the federal government (4.7 percent). In addition, DHS human
resource officials acknowledged the department's difficulty in
retaining some staff, but noted that this may be because the department
is relatively new and, therefore, some higher than average attrition is
to be expected.
According to OPM officials, enhanced retirement benefits are not
intended to be a tool for retaining personnel and, thus, may not be
appropriate in addressing the cited and related retention challenges. A
possible option for addressing the retention challenges cited by some
DOJ component agencies and DHS human resource officials is the use of
human capital tools for these groups. According to our analysis of
OPM's annual reports to Congress on agencies' use of retention
incentives for calendar years 2006 and 2007, DHS and DOJ use human
capital tools to retain their personnel to a lesser extent than other
federal departments.[Footnote 62] Specifically, DHS awarded an average
of $2,241 retention incentives to approximately 0.6 percent of all DHS
employees (law enforcement and related personnel as well as other
personnel), while DOJ awarded an average of $3,279 to approximately 0.9
percent of all DOJ employees and Department of the Treasury awarded an
average of $13,467 to approximately 0.1 percent of all its employees
for fiscal years 2006 and 2007.[Footnote 63] In comparison, OPM
reported that other reporting departments awarded an average retention
incentive of $5,629 to approximately 3.6 percent of its employees
during the same time frame.[Footnote 64] For additional information on
the use of human capital tools during calendar years 2006 and 2007, as
reported to OPM, see appendix VI.
We have also previously reported on the effectiveness of providing cash
incentives, such as retention incentives and special pay, to retain
federal personnel.[Footnote 65] Specifically, in July 2005, we reported
that some deferred benefits, such as retirement, are not valued as
highly as cash compensation (basic pay or special pay and monetary
retention incentives) and that cash compensation is generally accepted
as a far more efficient tool than deferred benefits for retaining
certain personnel. Cash compensation has been used for various groups
of law enforcement-related personnel. For example, what is known as the
Customs Officer Pay Reform Act (COPRA) of 2003 and its implementing
regulations provided revised and enhanced overtime compensation and
premium pay provisions to a number of customs inspectors and
supervisors.[Footnote 66] In addition, our analysis of fiscal years
2004 through 2008 CPDF data indicated that the attrition rates for
those law enforcement-related personnel receiving special pay were
similar to those personnel receiving enhanced retirement benefits and
were lower than those law enforcement-related personnel receiving
neither enhanced pay nor enhanced retirement benefits. Specifically,
the average governmentwide attrition rate for law enforcement-related
personnel not receiving enhanced retirement benefits was 4.7 percent,
compared to 3.2 percent for law enforcement personnel receiving
enhanced retirement benefits and 3.5 percent for law enforcement-
related personnel who received special pay and no enhanced retirement
benefits. The use of special pay could therefore also be an option for
addressing some of the retention challenges reported by some agencies
employing law enforcement-related personnel not receiving enhanced
retirement benefits.
If sustainable funding were available, agencies using human capital
tools in a targeted manner for law enforcement related personnel could
be a cost-efficient option (considering their relatively low cost to a
federal agency when compared to enhanced retirement benefits). For
example, as noted above, our analysis of CPDF data found that all
federal employees, including law enforcement and law enforcement-
related personnel, with less than 5 years of service had higher
attrition rates than those with 5 or more years of service.
Specifically, law enforcement personnel receiving enhanced retirement
benefits with less than 5 years of service had a 10.4 percent attrition
rate while those with 5 or more years of service had a 2.2 percent
attrition rate for fiscal year 2008. For those law enforcement-related
personnel with less than 5 years of service, targeted use of human
capital tools or the use of special pay could be a more meaningful
option for addressing their attrition.
According to DOJ officials, they do not currently have plans to target
their use of human capital tools toward any specific personnel because
they did not feel their department faces retention challenges. These
officials also noted that these tools are available for all of their
employees. DHS human resource officials acknowledged that the
department faces challenges in retaining its employees, including those
in law enforcement-related positions with less than 5 years of service
and noted that they have a number of efforts under way to address
attrition for this specific population. For example, they have
implemented a program that seeks to retain employees by allowing them
to explore different career paths within DHS rather than leaving the
department altogether.
While the costs of providing retention incentives and special pay are
not insignificant, they pose less of a potential financial liability to
the federal government than providing enhanced retirement benefits. For
example, according to OPM, the average annual retention incentive
provided to federal employees in calendar year 2007 was $5,573. We
estimated that the average cost to CBP, for example, for providing
increased agency contributions to fund enhanced retirement benefits to
the approximately 20,000 CBP Officers, was about $10,000 per position
for fiscal year 2009--and these costs are expected to continue for the
rest of each individual's career as a CBP Officer. Moreover, when we
spoke to human resource officials from DHS, they stated that providing
special pay, which is higher than that of a regular federal employee,
may be a less costly option for addressing retention challenges than
providing enhanced retirement benefits to additional employee groups.
Concluding Observations:
Currently, there are approximately 51,000 federal law enforcement-
related personnel who have not received enhanced retirement benefits
because they have not been determined to meet the statutory and
regulatory definitions relating to a LEO or have not been provided such
benefits directly through legislation. Employees in several occupations
have expressed interest in obtaining LEO or similar enhanced retirement
benefits, and they will most likely seek them directly through
legislation. Law enforcement-related personnel who have previously
obtained or are seeking enhanced retirement benefits directly through
legislation have used various rationales to justify their request,
including high attrition rates, equity considerations, and the
assertion that they are now performing more homeland-security-related
functions than they had previously. However, in those instances where
employee groups are seeking enhanced retirement benefits directly
through separate legislation, data are not always provided to support
the various rationales. Our analysis of available attrition data showed
that while law enforcement-related personnel without enhanced
retirement benefits generally have higher attrition rates than those
with enhanced retirement benefits or special pay, their attrition rates
are actually lower than the overall average for other federal
employees. Therefore, it may be useful to evaluate such data when
determining whether to provide expensive, enhanced retirement benefits
in response to assertions of retention challenges.
In addition, our analysis indicates that considering the costs to
agencies, and to the pension system as a whole, of providing these
enhanced retirement benefits is important because it is a long-term
commitment and may affect agency strategic workforce planning options.
OPM's actuaries can provide estimates of the long-term costs to the
government for the increased pensions, but if additional employee
groups are granted enhanced retirement benefits directly through
legislation, agencies may need short-term supplemental funding as well
as longer-term additional funding to cover increased agency
contributions to the retirement fund. Furthermore, assessing the impact
of potentially unfunded liabilities to the treasury and the retirement
system related to providing enhanced retirement benefits to employees
still under CSRS may also be important when determining whether to
provide enhanced retirement benefits to additional employee groups.
Soliciting agencies' perspectives on their personnel needs, challenges,
and available budgets would help to inform these benefit decisions as
well, especially given that legislative requests for such benefits
typically are not brought by agencies, but by unions or employee group
representatives. Agencies' possible use of human capital tools in a
targeted fashion (such as cash bonuses or special pay) are another
potentially more cost-efficient means for addressing the human capital
issues cited for law enforcement personnel than awarding enhanced
retirement benefits, which may also result in unintended consequences
such as perceptions of inequity:
Finally, information on attrition, costs, agencies' strategic workforce
plans and budgets, and other issues can help to inform whether requests
for enhanced retirement benefits directly through legislation are
justifiable, affordable, and cost-efficient. These are some of the
challenges facing both agencies and Congress in making fiscally
responsible policy decisions, especially given our nation's growing
fiscal imbalance.
Agency Comments:
We requested comments on a draft of this report from DHS, DOJ, IRS, and
OPM. On July 24, 2009, we received written comments from OPM on the
draft report, which are reproduced in full in appendix VII. OPM
generally concurred with the report. DHS and DOJ did not provide
written comments, but in e-mails received July 27, 2009 and July 28,
2009, DOJ and DHS liaisons stated that the departments generally agreed
with the report. OPM, DHS, and DOJ also provided technical comments,
which we have incorporated where appropriate. In an e-mail received
July 24, 2009, the IRS liaison stated that IRS had no comments on the
draft report.
We will provide copies of this report to the Attorney General, the
Secretary of the Department of Homeland Security, the Secretary of the
Treasury, the Director of OPM, selected congressional committees, and
other interested parties. In addition, the report will be available at
no charge on the GAO Web site at [hyperlink, http://www.gao.gov].
Please contact Eileen R. Larence at (202) 512-6510 if you or your staff
has any questions concerning this report. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. Key contributors to this report are
listed in appendix VIII.
Signed by:
Eileen R. Larence:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Scope and Methodology:
This report addresses the following questions: (1) What processes are
being used to grant enhanced retirement benefits to federal law
enforcement personnel? (2) What are the rationales and potential costs
for extending such benefits to additional occupations or employee
groups? (3) To what extent have federal agencies used human capital
tools, such as retention incentives, to retain both law enforcement and
other related personnel?
As agreed upon with your offices, our review focused on the Department
of Homeland Security (DHS), Department of Justice (DOJ), and Department
of the Treasury because these federal entities employed approximately
84 percent of all law enforcement and law enforcement-related personnel
in fiscal year 2008.[Footnote 67] For the purposes of this report, we
are defining the term law enforcement personnel in a manner that is
broader in scope than the statutory and regulatory law enforcement
officer (LEO) definitions and we are not including other specialized
non-law enforcement related annuity recipients, such as federal air
traffic controllers and firefighters.
To identify the processes that have been used to grant enhanced
retirement benefits to federal law enforcement personnel, we reviewed
relevant laws, regulations, as well as legislation introduced in the
110th Congress that would have provided such benefits to additional
employee groups. We also reviewed reports by the Office of Personnel
Management (OPM), the Congressional Budget Office, and the
Congressional Research Service that describe the current processes by
which such benefits are provided. Also, we obtained information on the
specific benefits provided to law enforcement personnel from DHS, DOJ,
and the Internal Revenue Service (IRS) within the Department of the
Treasury, as well as OPM and select employee organizations and unions.
During this review, we also obtained information from OPM on its role
and responsibilities related to providing enhanced retirement benefits
to personnel who perform law enforcement-related duties.
We also met with representatives from six unions and other employee
organizations who have advocated for enhanced retirement benefits, to
discuss the current process for obtaining enhanced benefits. In
addition, we met with staff from the Merit System Protection Board
(MSPB), which adjudicates federal employees' appeals of personnel
actions such as appeals from employees who believe they are entitled to
LEO coverage, to discuss their views and opinions on the current
criteria used to determine which federal personnel meet the statutory
and regulatory LEO definitions. We did not, however, review the
appropriateness of the statutory and regulatory definitions relating to
LEOs nor did we determine criteria for evaluating the definitions or
the processes used by various agencies in implementing the definition.
To identify the rationales and potential costs for extending enhanced
retirement benefits to additional occupations or employee groups, we
met with representatives from six unions and employee organizations who
have advocated for enhanced retirement benefits to discuss the
rationales that law enforcement-related personnel are using to seek
enhanced benefits similar to those received by LEOs. We also discussed
potential effects of providing enhanced retirement benefits to
additional employee groups that may be beneficial to consider, such as
potential costs, when providing such benefits to others groups with
DHS, DOJ, IRS, and OPM officials. Further, we reviewed previous GAO
reports that discuss the importance of making policy decisions that
take into consideration the need for fiscal stewardship. We also
obtained information on the extent to which granting such benefits may
affect other employees and agencies' workforce planning. During this
review, we interviewed officials from DHS, DOJ, IRS, and OPM on the
potential workforce planning effects of providing enhanced retirement
benefits directly through legislation to those additional employee
groups seeking such benefits.
Because one of the primary rationales provided was that law enforcement-
related personnel not receiving enhanced retirement benefits exhibit
high attrition, including moving to occupations that provide such
benefits, we analyzed data from OPM's Central Personnel Data File
(CPDF) for fiscal years 2004 through 2008 to calculate the attrition
rates and to determine the extent to which these rationales can be
substantiated with existing data.[Footnote 68] Our analysis focused on
DHS, DOJ, and Treasury; however, we also analyzed these data on a
governmentwide basis. Regarding CPDF, we have previously reported that
governmentwide data from CPDF for most of the key variables used in
this study (agency/sub-element, position occupied, retirement plan,
work schedule, and occupation) were at least 99 percent accurate and
thus concluded that the data were sufficiently reliable for the
purposes of this study.[Footnote 69] Our analysis of CPDF data included
personnel that were:
* identified as permanent employees of all work schedules.
* identified as having separated from their agency of employment
through resignation or transfer from one agency to another agency.
For the purpose of our analysis, we divided personnel into four
different groups by LEO status. The first group, referred to as law
enforcement personnel, included personnel that were:
* identified as having LEO enhanced retirement, and:
* identified as personnel receiving enhanced retirement benefits
similar to LEOs through separate legislation.
The second group, referred to as law enforcement-related personnel,
included personnel that were:
* identified as personnel that have not been found to meet the LEO
definition by their employing agency and OPM nor have they been
provided with similar enhanced retirement benefits.
* identified as potentially performing certain law enforcement-related
duties including but not limited to carrying a weapon, having arrest
authority, or participating in some investigative capacity. Occupations
frequently thought of as being law enforcement-related may include
personnel in the following occupations (if not covered by LEO): 0006,
0007, 0025, 0080, 0082, 0083, 0084, 1801, 1802, 1810, 1811, 1812, 1816,
1854, 1881, 1884, 1890, 1895, 1896, and 1899.
* Identified as having previously expressed interest in receiving such
benefits through legislation. The following occupations were added to
the law enforcement-related group because they have previously lobbied
for passage of a bill to give them retirement benefits similar to LEO
retirement: CBP Agricultural Inspectors (0401), Assistant U.S.
Attorneys (0905), and IRS Revenue Officers (1169).
The third group, referred to as law enforcement-related personnel
receiving special pay, also included those who have not been found to
meet the LEO definition and are performing certain law enforcement-
related duties but receive special pay.[Footnote 70] The fourth group,
referred to as other federal personnel, include those who do not
function in a law enforcement capacity and do not perform law
enforcement-related duties.
To calculate the rates of attrition for each fiscal year, we divided
the total number of resignations and transfers from one agency to
another by the average of the number of permanent employees. The
average number of employees for a given fiscal year was calculated
using the number of employees at the beginning and the end of each
fiscal year. We calculated the rates of attrition for each of the
previously described personnel groups on a governmentwide basis as well
as on a departmentwide basis for DHS, DOJ, and the Department of the
Treasury. We focused our analysis on these Departments because they
employ 84 percent of federal law enforcement and law enforcement-
related personnel. To calculate the average attrition rates from fiscal
year 2004 through 2008, we added the total of each group's attrition
rate for each fiscal year multiplied by the average population of the
group and divided it by the total population of the 5 year time frame.
We calculated the average rates of attrition for each of the previously
described personnel groups on a governmentwide basis as well as on a
departmentwide basis for DHS, DOJ, and the Department of the Treasury.
Further, we analyzed CPDF data to determine whether law enforcement-
related personnel not receiving LEO or similarly-enhanced retirement
benefits were moving to other federal positions that offered these
benefits (because such moves were another rationale from those unions
and employee groups seeking enhanced retirement benefits). We totaled
the number of employees that moved from a law enforcement-related
occupation not receiving enhanced retirement benefits on a
governmentwide basis from fiscal year 2004 through fiscal year 2007.
[Footnote 71] Then, we calculated the percentage of those employees who
moved to a law enforcement occupation receiving such benefits under the
same parameters.
To determine the extent to which federal agencies have used human
capital tools to retain both law enforcement and law enforcement-
related personnel, we reviewed and analyzed information reported to OPM
on the extent to which DHS, DOJ, and Treasury were using retention
incentives. We also obtained information on the use of human capital
tools to retain law enforcement and law enforcement-related personnel
from DHS, DOJ, and IRS human capital officials, various component
agency officials, and union and employee representatives. In addition,
we reviewed previous GAO reports that discuss the use and potential
effectiveness of human capital tools to retain federal employees.
[Footnote 72]
We conducted this performance audit from January 2008 through July
2009, in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Definition of "Law Enforcement Officer" for Retirement
Purposes:
The current definition of "law enforcement officer" can be traced back
to as early as 1948. In 1948, legislation was enacted into law that, in
general, provided enhanced retirement benefits to certain federal
officers whose duties were primarily the investigation, apprehension,
or detention of persons suspected or convicted of offenses against the
criminal laws of the United States. This legislation expanded the
coverage of enhanced retirement benefits governmentwide beyond the
limited scope of legislation enacted 1 year earlier in 1947 covering
only FBI agents. In comments on the then pending 1948 legislation, the
Civil Service Commission noted that it was "not in favor of special
legislation for individual groups of employees, but inasmuch as
Congress has approved special legislation for the investigatory
personnel of the Federal Bureau of Investigation it would not oppose
benefits for similar groups of employees." Committee report language
noted that the "committee believes it is only fair to grant such
retirement benefits as are provided for under the bill to law-
enforcement agents in all parts of the Government at an earlier age,
because it is physically impossible to carry on the necessary strenuous
activities after reaching 50 years of age."
Currently, law enforcement personnel performing certain specified types
of duties can fall within the Civil Service Retirement System (CSRS)
[Footnote 73] and Federal Employee Retirement System (FERS)[Footnote
74] statutory and regulatory retirement-related definitions of the term
"law enforcement officer" (LEO) and thus be eligible for enhanced
retirement benefits under the respective retirement plans. LEO
retirement coverage does not depend on the classification of a position
within an occupational series (e.g., Police Officer GS-0083) or the law
enforcement mission of a particular agency.
For CSRS purposes, a LEO is defined in statute as an employee whose
primary duties are the "investigation, apprehension, or detention
[Footnote 75] 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." OPM's implementing regulations provide additional
definitions. The term "primary duties", for example, is defined, in
part, as "those duties of a position that - (1) are paramount in
influence or weight; that is, constitute the basic reasons for the
existence of the position; (2) occupy a substantial portion of the
individual's working time over a typical work cycle; and (3) are
assigned on a regular and recurring basis." The implementing
regulations further provide, for example, that the definition of a LEO
"does not include an employee whose primary duties involve maintaining
law and order, protecting life and property, guarding against or
inspecting for violations of law, or investigating persons other than
persons who are suspected or convicted of offenses against the criminal
laws of the United States."
The main statutory provision of the FERS LEO definition generally
parallels the CSRS LEO definition. Like the CSRS provision, the
statutory FERS LEO definition includes an employee whose primary duties
are the "investigation, apprehension, or detention[Footnote 76] of
individuals suspected or convicted of offenses against the criminal
laws of the United States." The statutory FERS LEO definition
additionally includes an employee whose primary duties are the
protection of officials of the United States against threats to
personal safety. Like the CSRS definition, the FERS definition also
includes employees primarily performing such duties who transfer to
supervisory and administrative positions. However, the statutory FERS
definition of a "law enforcement officer" is more restrictive than the
CSRS LEO definition in that it expressly includes a rigorous duty
standard. With respect to those employees described above, the
statutory FERS LEO definition additionally requires, in general, that
the duties of such positions be "sufficiently rigorous that employment
opportunities should be limited to young and physically vigorous
individuals."[Footnote 77] As with CSRS, OPM implementing regulations
provide additional FERS LEO-related definitions. The term "rigorous
position", for example, is defined under OPM FERS regulations to mean,
in pertinent part, "a position the duties of which are so rigorous that
employment opportunities should, as soon as reasonably possible, be
limited (through establishment of a maximum entry age and physical
qualifications) to young and physically vigorous individuals whose
primary duties are investigating, apprehending, or detaining
individuals suspected or convicted of offenses against the criminal
laws of the United States or protecting the personal safety of United
States officials."
The statutory FERS definition of "law enforcement officer" also
specifically includes certain employees of the U.S. Park Police and
members of the U.S. Secret Service Uniformed Division. OPM implementing
regulations provide that the term "rigorous position" is deemed to
include such positions in the Park Police and Secret Service Uniformed
Division.
The CSRS and FERS implementing regulations relating to the definition
of a LEO generally exclude an "employee whose primary duties involve
maintaining law and order, protecting life and property, guarding
against or inspecting for violations of law, or investigating persons
other than persons who are suspected or convicted of offenses against
the criminal laws of the United States." In this regard, groups that
are generally excluded from the CSRS and FERS definitions of "law
enforcement officer" are police officers, guards, and inspectors.
Legislative Actions Related to the Definition of LEO:
As discussed above, federal uniformed police typically do not have LEO
retirement coverage because they are generally excluded from the CSRS
and FERS definitions relating to a "law enforcement officer."
Legislation has been enacted into law, however, that extends enhanced
retirement benefits to certain federal uniformed police groups within
the broader law enforcement community.
For example, Congress has extended enhanced retirement benefits to
certain employees of the U.S. Secret Service Uniformed Division
officers, U.S. Park Police, U.S. Capitol Police, and U.S. Supreme Court
Police. The officers of the U.S. Secret Service Uniformed Division and
the U.S. Park Police were added in 1988 when legislation amended the
statutory FERS LEO definition. Committee report language accompanying
the 1988 legislation provided that "although these individuals are
commonly thought to be law enforcement officers, the Office of
Personnel Management says they do not meet the FERS definition of 'law
enforcement officer' under section 8401(17) and thus do not qualify for
FERS law enforcement officer benefits."[Footnote 78] In comparison,
rather than amending the statutory LEO definition, legislation in 1990
and 2000 provided the U.S. Capitol Police and U.S. Supreme Court
Police, respectively, with enhanced retirement benefits similar to
those received by LEOs.[Footnote 79]
Administrative and Judicial Appeal Actions Related to Coverage Under
the Definition of LEO:
Both MSPB and the U.S. Court of Appeals for the Federal Circuit, for
example, have issued decisions that affect, on an individual basis,
which employees receive LEO. An individual employee asserting that his
or her position duties are primarily the investigation, apprehension,
or detention of individuals suspected or convicted of offenses against
the criminal laws of the United States, may, for example, appeal an
agency's final decision to the MSPB.[Footnote 80] An employee may also
appeal a final decision of the MSPB to the U.S. Court of Appeals for
the Federal Circuit.
As discussed earlier, in general, in order to qualify for LEO coverage,
an employee must show that the duties of his or her position are
primarily the investigation, apprehension, or detention of individuals
suspected or convicted of crimes against the criminal laws of the
United States. FERS has the additional statutory requirement that LEO
positions are to be those that are sufficiently rigorous that
employment opportunities should be limited to young and physically
vigorous individuals, as determined by the Director of OPM considering
the recommendations of the employing agency.[Footnote 81]
OPM regulations set out a three-prong test to determine whether duties
are considered primary duties of a particular position: (1) whether the
duties are paramount in influence or weight, that is, constitute the
basic reasons for the existence of the position; (2) whether the duties
occupy a substantial portion of the individual's working time over a
typical work cycle; and (3) whether the duties are assigned on a
regular and recurring basis. Under OPM regulations, in general, if an
employee spends at least 50 percent of his or her time performing a
duty or group of duties, they are his or her primary duties. In
addition, duties that are of an emergency, incidental, or temporary
nature cannot be considered "primary" even if they meet the substantial
portion of time criterion, according to the OPM regulations.
In determining whether an employee meets the LEO definitional criteria
for coverage, under pertinent case law, MSPB must examine all relevant
evidence, including the position description.[Footnote 82] The U.S.
Court of Appeals for the Federal Circuit clarified its approach to law
enforcement officer cases in a 2001 decision, Watson v. Department of
the Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001), noting a legislative
mandate for a position-oriented approach in cases of requests for law
enforcement officer credit by requiring the "basic reasons" for the
existence of the position must be the performance of law enforcement
officer duties.[Footnote 83] Under this approach, if the position was
not created for the purpose of investigation, apprehension, or
detention, then the incumbent of the position would not be entitled to
law enforcement officer credit.[Footnote 84]
The Court of Appeals for the Federal Circuit set out six factors,
called the Bingaman factors, in a 1997 decision, Bingaman v. Department
of the Treasury, 127 F.3d 1431 (Fed. Cir. 1997), that MSPB applies to
an overall evaluation of the three OMB criteria for identifying primary
duties.[Footnote 85] Under this approach, MSPB considers whether the
employee commonly (1) has frequent direct contact with criminal
suspects, (2) is authorized to carry a firearm, (3) interrogates
witnesses and suspects, (4) works for long periods of time without
breaks, (5) is on call 24 hours a day, and (6) is required to maintain
a level of physical fitness.[Footnote 86] No single Bingaman factor is
considered determinative and satisfaction of the Bingaman factors alone
is insufficient to establish entitlement to LEO coverage because the
Bingaman factors do not address the reason for the existence of the
position, as required by the regulations.[Footnote 87] The MSPB and the
Federal Circuit Court have held that the most probative factors for
determining whether a federal officer or law enforcement officer is
eligible for early retirement credit are (1) whether the officer is
merely guarding life and property, or whether he is instead more
frequently pursuing or detaining criminals, (2) whether there is an
early mandatory retirement age, (3) whether there is a youthful maximum
entry age for the position, (4) whether the job is physically demanding
so as to require a youthful workforce, and (5) whether the officer is
exposed to hazard or danger.[Footnote 88] In addition, determination of
eligibility for LEO retirement coverage is strictly construed because
the program is "more costly to the government than more traditional
retirement plans and often results in the retirement of important
people at a time when they would otherwise have continued to work for a
number of years."[Footnote 89]
A 2005 decision of the Court of Appeals for the Federal Circuit Court,
Crowley v. United States, 398 F.3d 1329, 1338 (Fed. Cir. 2005), noted
that two factors predominate over all others in determining primary
duties. The Crowley court noted that the most important consideration
in its position-oriented approach of LEO determination is the physical
vigorousness required by the position in question, followed by the
hazardousness of a position.[Footnote 90] The Crowley court stated
that, while hazardousness was also important, it was secondary to
physical vigorousness because the legislative history of the LEO
statute emphasized physical vigor to a greater extent.[Footnote 91]
The Crowley court stated that physical vigorousness is the "sine qua
non" of LEO status determinations and that absent a showing of a
position's requirement of physical vigorousness, an employee cannot
successfully show LEO status.[Footnote 92] The Crowley court noted that
the relevant considerations are whether or not the position contains
(in order of importance) (1) strenuous physical fitness requirements,
(2) age requirements (such as a mandatory retirement age or maximum
entry age), or (3) a requirement that an employee be on call 24-hours a
day.[Footnote 93] The Crowley court explained that these sub-factors
should be evaluated by applying the facts of a given case to the law to
determine which sub-factors, if any, have been satisfied.[Footnote 94]
If the position in question is found to be vigorous, then the second
major factor necessary to establish LEO status--hazardousness--must be
considered.[Footnote 95]
The second important consideration in LEO determinations cited by the
Crowley court is the hazardousness of a position. To determine
hazardousness, the Crowley court, in general, provided that a court
should consider whether the position (in order of importance) requires
frequent and consistent contact with criminal suspects on the part of
the employee (including interrogation of suspects and pursuit or
detention of criminals), or whether it authorizes the employee to carry
a firearm.[Footnote 96]
[End of section]
Appendix III: Annuity Computation Information:
An individual working in a position designated as a "law enforcement
officer" position is typically covered either under special rules for
CSRS or FERS. Under CSRS, LEOs pay a higher retirement contribution
rate (7.5 percent of pay) for more generous retirement benefits and
have the ability to retire at age 50 after 20 years of law enforcement
officer-covered or other eligible service.[Footnote 97] The benefits
are to be computed based on 2.5 percent of the high three average
salary for each of the first 20 years of covered service, and 2 percent
per year of service (covered or not) thereafter. An individual is
subject to mandatory retirement upon reaching the age of 57 or the
completion of 20 years of covered service. Under FERS, there are also
special benefits, but the rules are different. Like CSRS, the
individual's contribution rate is one-half percent more than for
regular benefits. FERS also has different rules for when an individual
may retire: at age 50 with 20 years of covered service (like CSRS), or
with 25 years of covered service without a minimum age. Under FERS, the
special benefit formula is 1.7 percent of the high three average salary
for each of the first 20 covered years of FERS service, and 1 percent
of pay per year of service thereafter. The FERS Cost of Living
Adjustment is to begin at retirement instead of age 62, the age for
regular retirees. In addition, law enforcement officer retirees are to
receive the FERS Special Retirement Supplement until age 62, but the
earnings test is not to be applied to the Special Retirement Supplement
until the Minimum Retirement Age is reached. An individual is subject
to mandatory retirement upon reaching the age of 57 or the completion
of 20 years of covered service, if then over that age. The table below
shows the annuity accrual rates.
Table 6: Annuity Accrual Rates:
Years of service: 1;
CSRS: Any age: [Empty];
FERS: Any age: 0.0100;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: [Empty];
FERS: LEO: 0.0170.
Years of service: 2;
CSRS: Any age: [Empty];
FERS: Any age: 0.0200;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: [Empty];
FERS: LEO: 0.0340.
Years of service: 3;
CSRS: Any age: [Empty];
FERS: Any age: 0.0300;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: [Empty];
FERS: LEO: 0.0510.
Years of service: 4;
CSRS: Any age: [Empty];
FERS: Any age: 0.0400;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: [Empty];
FERS: LEO: 0.0680.
Years of service: 5;
CSRS: Any age: 0.0750;
FERS: Any age: 0.0500;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.1250;
FERS: LEO: 0.0850.
Years of service: 6;
CSRS: Any age: 0.0925;
FERS: Any age: 0.0600;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.1500;
FERS: LEO: 0.1020.
Years of service: 7;
CSRS: Any age: 0.1100;
FERS: Any age: 0.0700;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.1750;
FERS: LEO: 0.1190.
Years of service: 8;
CSRS: Any age: 0.1275;
FERS: Any age: 0.0800;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.2000;
FERS: LEO: 0.1360.
Years of service: 9;
CSRS: Any age: 0.1450;
FERS: Any age: 0.0900;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.2250;
FERS: LEO: 0.1530.
Years of service: 10;
CSRS: Any age: 0.1625;
FERS: Any age: 0.1000;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.2500;
FERS: LEO: 0.1700.
Years of service: 11;
CSRS: Any age: 0.1825;
FERS: Any age: 0.1100;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.2750;
FERS: LEO: 0.1870.
Years of service: 12;
CSRS: Any age: 0.2025;
FERS: Any age: 0.1200;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.3000;
FERS: LEO: 0.2040.
Years of service: 13;
CSRS: Any age: 0.2225;
FERS: Any age: 0.1300;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.3250;
FERS: LEO: 0.2210.
Years of service: 14;
CSRS: Any age: 0.2425;
FERS: Any age: 0.1400;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.3500;
FERS: LEO: 0.2380.
Years of service: 15;
CSRS: Any age: 0.2625;
FERS: Any age: 0.1500;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.3750;
FERS: LEO: 0.2550.
Years of service: 16;
CSRS: Any age: 0.2825;
FERS: Any age: 0.1600;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.4000;
FERS: LEO: 0.2720.
Years of service: 17;
CSRS: Any age: 0.3025;
FERS: Any age: 0.1700;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.4250;
FERS: LEO: 0.2890.
Years of service: 18;
CSRS: Any age: 0.3225;
FERS: Any age: 0.1800;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.4500;
FERS: LEO: 0.3060.
Years of service: 19;
CSRS: Any age: 0.3425;
FERS: Any age: 0.1900;
FERS: Age 62 and 20 or more years service: [Empty];
CSRS: LEO: 0.4750;
FERS: LEO: 0.3230.
Years of service: 20;
CSRS: Any age: 0.3625;
FERS: Any age: 0.2000;
FERS: Age 62 and 20 or more years service: 0.2200;
CSRS: LEO: 0.5000;
FERS: LEO: 0.3400.
Years of service: 21;
CSRS: Any age: 0.3825;
FERS: Any age: 0.2100;
FERS: Age 62 and 20 or more years service: 0.2310;
CSRS: LEO: 0.5200;
FERS: LEO: 0.3500.
Years of service: 22;
CSRS: Any age: 0.4025;
FERS: Any age: 0.2200;
FERS: Age 62 and 20 or more years service: 0.2420;
CSRS: LEO: 0.5400;
FERS: LEO: 0.3600.
Years of service: 23;
CSRS: Any age: 0.4225;
FERS: Any age: 0.2300;
FERS: Age 62 and 20 or more years service: 0.2530;
CSRS: LEO: 0.5600;
FERS: LEO: 0.3700.
Years of service: 24;
CSRS: Any age: 0.4425;
FERS: Any age: 0.2400;
FERS: Age 62 and 20 or more years service: 0.2640;
CSRS: LEO: 0.5800;
FERS: LEO: 0.3800.
Years of service: 25;
CSRS: Any age: 0.4625;
FERS: Any age: 0.2500;
FERS: Age 62 and 20 or more years service: 0.2750;
CSRS: LEO: 0.6000;
FERS: LEO: 0.3900.
Years of service: 26;
CSRS: Any age: 0.4825;
FERS: Any age: 0.2600;
FERS: Age 62 and 20 or more years service: 0.2860;
CSRS: LEO: 0.6200;
FERS: LEO: 0.4000.
Years of service: 27;
CSRS: Any age: 0.5025;
FERS: Any age: 0.2700;
FERS: Age 62 and 20 or more years service: 0.2970;
CSRS: LEO: 0.6400;
FERS: LEO: 0.4100.
Years of service: 28;
CSRS: Any age: 0.5225;
FERS: Any age: 0.2800;
FERS: Age 62 and 20 or more years service: 0.3080;
CSRS: LEO: 0.6600;
FERS: LEO: 0.4200.
Years of service: 29;
CSRS: Any age: 0.5425;
FERS: Any age: 0.2900;
FERS: Age 62 and 20 or more years service: 0.3190;
CSRS: LEO: 0.6800;
FERS: LEO: 0.4300.
Years of service: 30;
CSRS: Any age: 0.5625;
FERS: Any age: 0.3000;
FERS: Age 62 and 20 or more years service: 0.3300;
CSRS: LEO: 0.7000;
FERS: LEO: 0.4400.
Years of service: 31;
CSRS: Any age: 0.5825;
FERS: Any age: 0.3100;
FERS: Age 62 and 20 or more years service: 0.3410;
CSRS: LEO: 0.7200;
FERS: LEO: 0.4500.
Years of service: 32;
CSRS: Any age: 0.6025;
FERS: Any age: 0.3200;
FERS: Age 62 and 20 or more years service: 0.3520;
CSRS: LEO: 0.7400;
FERS: LEO: 0.4600.
Years of service: 33;
CSRS: Any age: 0.6225;
FERS: Any age: 0.3300;
FERS: Age 62 and 20 or more years service: 0.3630;
CSRS: LEO: 0.7600;
FERS: LEO: 0.4700.
Years of service: 34;
CSRS: Any age: 0.6425;
FERS: Any age: 0.3400;
FERS: Age 62 and 20 or more years service: 0.3740;
CSRS: LEO: 0.7800;
FERS: LEO: 0.4800.
Years of service: 35;
CSRS: Any age: 0.6625;
FERS: Any age: 0.3500;
FERS: Age 62 and 20 or more years service: 0.3850;
CSRS: LEO: 0.8000;
FERS: LEO: 0.4900.
Years of service: 36;
CSRS: Any age: 0.6825;
FERS: Any age: 0.3600;
FERS: Age 62 and 20 or more years service: 0.3960;
CSRS: LEO: 0.8000;
FERS: LEO: 0.5000.
Years of service: 37;
CSRS: Any age: 0.7025;
FERS: Any age: 0.3700;
FERS: Age 62 and 20 or more years service: 0.4070;
CSRS: LEO: 0.8000;
FERS: LEO: 0.5100.
Years of service: 38;
CSRS: Any age: 0.7225;
FERS: Any age: 0.3800;
FERS: Age 62 and 20 or more years service: 0.4180;
CSRS: LEO: 0.8000;
FERS: LEO: 0.5200.
Years of service: 39;
CSRS: Any age: 0.7425;
FERS: Any age: 0.3900;
FERS: Age 62 and 20 or more years service: 0.4290;
CSRS: LEO: 0.8000;
FERS: LEO: 0.5300.
Years of service: 40;
CSRS: Any age: 0.7625;
FERS: Any age: 0.4000;
FERS: Age 62 and 20 or more years service: 0.4400;
CSRS: LEO: 0.8000;
FERS: LEO: 0.5400.
Years of service: 41;
CSRS: Any age: 0.7825;
FERS: Any age: 0.4100;
FERS: Age 62 and 20 or more years service: 0.4510;
CSRS: LEO: 0.8000;
FERS: LEO: 0.5500.
Years of service: 42;
CSRS: Any age: 0.8000;
FERS: Any age: 0.4200;
FERS: Age 62 and 20 or more years service: 0.4620;
CSRS: LEO: 0.8000;
FERS: LEO: 0.5600.
Source: OPM.
[End of table]
[End of section]
Appendix IV: Selected Non Standard Pay Plans:
The table below reflects selected information from Appendix C of the
Office of Personnel Management's (OPM) July 2004 report to Congress
entitled, Federal Law Enforcement Pay and Benefits. The information
pertains to selected non-standard pay plans provided to various law
enforcement and law enforcement-related personnel as set out in OPM's
report.
Table 7: Selected Non Standard Pay Plans:
Description of basic pay system: Capitol Police Pay Plan; By law, the
basic pay plan for Capitol Police is established and maintained by the
Capitol Police Board. The plan covers police officers (all ranks). The
pay schedule for Capitol police is significantly higher than that for
GS police officers and is higher than the schedules for Secret Service
Uniformed Division (SSUD) and Park Police officers;
Statutory and regulatory citations: 40 U.S.C. 207b(a)[A].
Description of basic pay system: DOD - Defense Protective Service (DPS)
Pay Plan The DPS police protect the Pentagon and surrounding areas. DPS
police officers (AD-0083) are covered by a special pay system
administered by the Secretary of Defense. (See section 1101 of Public
Law 107-107, December 28, 2001.) DOD has administratively adopted the
same pay plan that applies to SSUD officers;
Statutory and regulatory citations: 10 U.S.C. 2674(b).
Description of basic pay system: Nuclear Regulatory Commission (NRC)
General Salary Schedule and Senior-Level (SN) Salary Schedule The NRC
General Salary Schedule is applicable to GS-equivalent NRC employees,
including criminal investigator positions (GG-1811). The NRC General
Salary Schedule is generally identical to the governmentwide General
Schedule;
Statutory and regulatory citations: Section 161.d of the Atomic Energy
Act of 1954, Public Law 83-703, August 30, 1954.
Description of basic pay system: Park Police Pay System The Park Police
Pay System is identical to the SSUD officer pay system;
Statutory and regulatory citations: DC Code § 5-545.01 § 5-563.02.
Description of basic pay system: Secret Service Uniformed Division
(SSUD) Pay System The SSUD officer pay system is established in the
D.C. Code. (Same pay system applies to Park Police officers in the
Department of the Interior.) Covers police officers (LE-0083) ranked
from private to chief;
Statutory and regulatory citations: DC Code § 5-545.01 § 5-563.02.
Description of basic pay system: Supreme Court Police Pay Plan The
Supreme Court Police pay plan covers its police officers. The pay plan
is identical to the pay plan for Capitol Police (comparing common
ranks);
Statutory and regulatory citations: 28 U.S.C. 672(b).
Description of basic pay system: Transportation Security Administration
(TSA) Pay Plans Core Compensation Plan - This plan covers an
unspecified number of Air Marshals (1801) and criminal investigators
(SV-1811) in a specialized law enforcement job category with a specific
banding structure;
Statutory and regulatory citations: TSA law & administrative action
under that law.
Source: Appendix C of OPM's 2004 report to Congress, entitled Federal
Law Enforcement Pay and Benefits. Given that the information is from
OPM's 2004 report, we did not verify the information and it does not
reflect any subsequent programmatic changes or amendments to the legal
citations.
[A] Revisions to the U.S. Code in 2002 transferred 40 U.S.C. 207b to 2
U.S.C. 1923 which relates to unified schedules of rates of basic pay
and a leave system for the Capitol Police. Section 1921a of Title 2
pertains to Capitol Police Board and Chief of the Capitol Police pay
system authority for members of the Capitol Police.
[End of table]
[End of section]
Appendix V: Attrition Data:
The following tables relate to attrition at the departmental level for
Department of Homeland Security (DHS), Department of Justice (DOJ), and
Department of the Treasury as well as government-wide for law
enforcement, law enforcement-related, law enforcement special pay, and
all other personnel from the Office of Personnel Management's (OPM)
Central Personnel Data File (CPDF). For the purposes of this report,
attrition is defined as resignations and transfers from the department
of employment. The average attrition rates for each fiscal year were
calculated by dividing the sum of the resignations and transfers for a
given year by the mean number of employees on the first and last pay
period of that fiscal year. The overall average attrition rate was
calculated by multiplying the sum of each fiscal year's average
attrition rate by each fiscal year's mean number of employees and
dividing that number by the sum of each fiscal year's mean number of
employees.
Table 8: Attrition Rates for Law Enforcement Personnel Receiving
Enhanced Retirement Benefits for Fiscal Year 2004 through Fiscal Year
2008:
Attrition rates (%): law enforcement personnel receiving enhanced
retirement benefits:
All:
FY 2004: 2.6;
FY 2005: 2.5;
FY 2006: 3.2;
FY 2007: 3.9;
FY 2008: 3.8;
Average: 3.2.
DHS:
FY 2004: 3.4;
FY 2005: 2.8;
FY 2006: 4.8;
FY 2007: 6.3;
FY 2008: 5.8;
Average: 4.8.
DOJ:
FY 2004: 1.8;
FY 2005: 2.1;
FY 2006: 2.3;
FY 2007: 2.4;
FY 2008: 2.3;
Average: 2.2.
Treasury:
FY 2004: 2.0;
FY 2005: 1.3;
FY 2006: 1.7;
FY 2007: 1.5;
FY 2008: 2.1;
Average: 1.7.
Source: GAO analysis of CPDF data.
[End of table]
Table 9: Attrition Rates for Law Enforcement-Related Personnel Not
Receiving Enhanced Retirement Benefits for Fiscal Year 2004 through
Fiscal Year 2008:
Attrition rates (%): law enforcement-related personnel not receiving
enhanced retirement benefits:
All:
FY 2004: 4.5;
FY 2005: 4.2;
FY 2006: 4.3;
FY 2007: 4.8;
FY 2008: 5.5;
Average: 4.7.
DHS:
FY 2004: 3.7;
FY 2005: 3.7;
FY 2006: 3.7;
FY 2007: 4.3;
FY 2008: 4.7;
Average: 4.1.
DOJ:
FY 2004: 2.7;
FY 2005: 3.7;
FY 2006: 3.3;
FY 2007: 4.2;
FY 2008: 3.8;
Average: 3.5.
Treasury:
FY 2004: 1.6;
FY 2005: 1.8;
FY 2006: 1.8;
FY 2007: 2.3;
FY 2008: 2.3;
Average: 2.0.
Source: GAO analysis of CPDF data.
[End of table]
Table 10: Attrition Rates for Law Enforcement Personnel-Related
Receiving Special Pay but Not Receiving Enhanced Retirement Benefits
for Fiscal Year 2004 through Fiscal Year 2008:
Attrition rates (%): law enforcement-related personnel receiving
special pay but not receiving enhanced retirement benefits:
All:
FY 2004: 2.5;
FY 2005: 2.5;
FY 2006: 3.7;
FY 2007: 3.4;
FY 2008: 5.6;
Average: 3.5.
DHS:
FY 2004: 0.8;
FY 2005: 1.2;
FY 2006: 3.1;
FY 2007: 3.4;
FY 2008: 4.7;
Average: 2.8.
DOJ[A]:
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
FY 2008: [Empty];
Average: [Empty].
Treasury:
FY 2004: 3.5;
FY 2005: 2.8;
FY 2006: 2.7;
FY 2007: 1.6;
FY 2008: 3.0;
Average: 2.7.
Source: GAO analysis of CPDF data.
[A] Although FBI Police receive special pay rates, DOJ does not employ
any law enforcement-related personnel receiving special base pay who
were the focus of our analyses of special pay.
[End of table]
Table 11: Attrition Rates for Other Personnel Not Employed in Law
Enforcement or Related Occupations for Fiscal Year 2004 through Fiscal
Year 2008:
Attrition rates (%): law enforcement-related personnel receiving
special pay but not receiving enhanced retirement benefits:
All:
FY 2004: 6.0;
FY 2005: 4.8;
FY 2006: 5.2;
FY 2007: 5.5;
FY 2008: 5.2;
Average: 5.4.
DHS:
FY 2004: 7.0;
FY 2005: 5.6;
FY 2006: 8.1;
FY 2007: 7.3;
FY 2008: 5.8;
Average: 6.7.
DOJ:
FY 2004: 2.8;
FY 2005: 2.9;
FY 2006: 3.0;
FY 2007: 3.7;
FY 2008: 3.4;
Average: 3.2.
Treasury:
FY 2004: 5.1;
FY 2005: 5.3;
FY 2006: 4.8;
FY 2007: 5.7;
FY 2008: 5.7;
Average: 5.3.
Source: GAO analysis of CPDF data.
[End of table]
[End of section]
Appendix VI: Federal Retention Incentives Utilization as Reported to
OPM and Congress:
Agency and OPM Authority:
The Office of Personnel Management (OPM) is required to submit an
annual report to certain congressional committees on agencies' use of
the retention incentives (as well as recruitment and relocation
incentives) authorized in Sections 5753 and 5754 of title 5, United
States Code.[Footnote 98] OPM requested that agencies not only submit a
report on their use of retention incentives in each calendar year but
also requested comments on any barriers faced in using theses
incentives.[Footnote 99]
Under Section 5754, with OPM authorization an agency may provide a
retention incentive to certain eligible employees currently in the
federal service if the agency either deems that the employee's
unusually high or unique qualifications or the agency's special need
for the employee's services make the employee's retention essential and
that the employee would likely leave the federal service in the absence
of the incentive. The retention incentive may not exceed 25 percent of
the employee's annual rate of basic pay (may not exceed 10 percent if
authorized for a group or category of employees). With OPM approval and
critical agency need, the incentive may reach up to 50 percent. For
most payment options, including an initial lump-sum payment,
installments during the service period, a final lump-sum payment, or in
some combination, the employee must sign a service agreement.[Footnote
100]
Incentives: All Reporting Agencies 2006 through 2007:
OPM reports that in 2007, 41 of the 97 responding agencies paid a total
of 22,794 retention incentives that valued over $127.0 million with an
average incentive of $5,573. In 2006, 47 of the 95 responding agencies
paid a total of 17,803 retention incentives that valued over $95.9
million with an average incentive of $5,388.[Footnote 101]
Incentives: Department of Homeland Security, 2006 through 2007:
OPM reports that in 2007, DHS paid a total of 656 retention incentives
that valued over $500,000 with an average incentive of $885. In 2006,
DHS paid a total of 1,098 retention incentives that valued over $3.3
million with an average incentive of $3,051. For both calendar years
2006 and 2007, DHS's average incentives awarded were lower than the
average incentives awarded for all reporting agencies.
Incentives: Department of Justice, 2006 through 2007:
OPM reports that in 2007, DOJ paid a total of 1,528 incentives that
valued over $3.9 million with an average incentive of $2,554, which was
lower than the average incentive awarded for all reporting agencies. In
2006, DOJ paid a total of 281 incentives that valued over $2.0 million
with an average incentive of $7,219, which was higher than the average
incentive awarded for all reporting agencies.
Incentives: Department of Treasury, 2006 through 2007:
OPM reports that in 2007, the Department of the Treasury paid a total
of 118 incentives that valued over $1.8 million with an average
incentive of $15,280. In 2006, Department of the Treasury paid a total
of 95 incentives that valued over $1.0 million with an average
incentive of $11,215. For both calendar years 2006 and 2007, Treasury's
average incentives awarded were higher than the average incentives
awarded for all reporting agencies.
Agency Incentive Utilization:
Along with the submission of incentive usage data, OPM asked that
agencies describe how they used the incentives and to discuss any
perceived barriers to using retention incentives. In general, OPM
reports that the agencies used the incentives most often to target
specific occupations that present particular retention challenges
(highly competitive market), to resolve retention challenges present in
specific locations, and to meet a highly specified staffing challenge.
Specifically, DOJ reported to OPM for calendar year 2007 that the
Executive Office of United States Attorneys (EOUSA) has found that
retention incentives are effective in addressing attrition and
shortages in EOUSA key positions.
[End of section]
Appendix VII: Comments from the Office of Personnel Management:
United States Office Of Personnel Management:
The Director:
Washington, DC 20115:
[hyperlink, http://www.opm.gov]
July 24, 2009:
Ms. Eileen R. Larence:
Director, Homeland Security and Justice:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Larence:
Thank you for providing the U.S. Office of Personnel Management (OPM)
the opportunity to comment on the Government Accountability Office
draft report titled "Federal Law Enforcement Retirement: Information on
Enhanced Law Enforcement Benefits for Law Enforcement Personnel," GAO
09-727. It was a pleasure working with your staff during their
research. We appreciate the opportunity to provide comments on the
report on the results of their investigation.
We believe that this report will provide extremely useful information
to decision makers reviewing the various human resource management
tools available to the Government to effectively manage this essential
segment of the Federal workforce. While many groups have sought
extension of the law enforcement officer retirement provisions, doing
so is both expensive and may not even have the intended effects. We
strongly support your conclusion that the use of other human resource
management tools "may present a cost-effective alternative for
retaining law enforcement-related personnel."
Technical comments to the draft report are enclosed. Unless otherwise
noted, the suggested revisions are meant to provide technical accuracy
and conform to terminology applicable to the Federal service.
Please contact Mr. David Cushing on (202) 606-4660 should your office
require additional information.
Again, my thanks to your office for providing this opportunity to
comment on the draft report.
Sincerely,
Signed by:
John Berry:
Director:
[End of section]
Appendix VIII: GAO Contact and Staff Acknowledgments:
GAO Contact:
Eileen R. Larence, (202) 512-6510:
Acknowledgements:
In addition to the contact named above, Steve D. Morris, Assistant
Director, managed this assignment. Elizabeth Dunn, George Erhart, and
Meg Ullengren made significant contributions to the work. Geoffrey
Hamilton provided significant legal support and analysis. Gregory
Wilmoth provided significant assistance with design and methodology, as
well as the data analysis from OPM's Central Personnel Data File. Adam
Vogt provided assistance in report preparation, and Ryan D'Amore made
contributions to the work during the preliminary phase of the review.
[End of section]
Footnotes:
[1] Enhanced retirement benefits refers to provisions governing early
retirement, faster accruing pension benefits, and post-retirement
benefits received by certain law enforcement personnel.
[2] For the purposes of this report, we use a broad definition of the
term "law enforcement related" that includes those who have already
requested or those whose advocates told us that they may request
enhanced retirement benefits or special pay in the future. In addition
to the 51,000 personnel performing law enforcement-related duties who
do not currently receive enhanced retirement benefits, there are also
approximately 51,000 Transportation Security Officers who may seek
enhanced retirement benefits in the future.
[3] OPM implementing regulations further provide details on various
aspects of the LEO definition. Job activities where primary duties
involve maintaining order, protecting life and property, guarding
against or inspecting for violations of law, or investigating persons
other than those who are suspected or convicted of offenses against the
criminal laws of the United States are generally not included in OPM's
regulatory LEO definition.
[4] See Consolidated Appropriations Act, 2003, Pub. L. No. 110-161, 121
Stat. 1844 (2007). About 20,000 CBP Officers received enhanced
retirement benefits directly through legislation via the Consolidated
Appropriations Act, 2008. These enhanced benefits were not retroactive.
Rather, CBP Officers began receiving these benefits in July 2008.
[5] DHS, DOJ, and Department of the Treasury employed approximately 91
percent of all federal law enforcement personnel receiving LEO
retirement benefits or similarly enhanced retirement benefits in fiscal
year 2008, approximately 75 percent of personnel employed in law
enforcement-related occupations not receiving enhanced retirement
benefits, and approximately 51 percent of personnel employed in law
enforcement-related occupations receiving special pay but not receiving
enhanced retirement benefits. Special pay refers to the nonstandard
basic pay system applied to certain law enforcement-related personnel
that do not currently receive enhanced retirement benefits.
[6] LEO coverage can also pertain to those individuals who have been
promoted to a management position or a supervisory or administrative
position.
[7] CPDF is a comprehensive federal personnel database that is
maintained by OPM. We queried CPDF by department, agency, subagency,
occupation series, and retirement plan as well as many other personnel
variables to meet the needs of our analysis of law enforcement and law
enforcement-related personnel. National security and intelligence
agencies such as the Central Intelligence Agency (CIA) and the National
Security Agency (NSA) do not submit personnel data to OPM's CPDF and,
thus, law enforcement personnel in these agencies are not included in
the total number of federal law enforcement personnel used in this
report.
[8] GAO, OPM's Central Personnel Data File: Data Appears Sufficiently
Reliable to Meet Most Customer Needs, [hyperlink,
http://www.gao.gov/products/GAO/GGD-98-199] (Washington, D.C.:
September 30, 1998). Also, in a document dated February 28, 2008, an
OPM official confirmed that OPM continues to follow the CPDF data
quality standards and procedures contained in our 1998 report.
[9] We defined special pay as receiving pay through a non-General
Schedule (GS) pay plan. We did not include those staff receiving
special rates under a GS pay plan because these rates vary by location
rather than covering an entire LEO group such as job series 0083
(police). Special rates do not change the rate of base pay.
[10] For the purposes of this review, we analyzed CPDF data beginning
with fiscal year 2004 because this was the first full fiscal year to
include DHS personnel. Also, we analyzed CPDF data ending with fiscal
year 2008 because this was the most recent fiscal year available.
[11] Fiscal year 2007 data were the latest available when we analyzed
the moves from positions with enhanced retirement benefits to positions
without enhanced retirement benefits.
[12] See Pub. L. No. 80-168, 61 Stat. 307 (1947).
[13] See Pub. L. No. 80-879, 62 Stat. 1221 (1948).
[14] This definition includes those personnel, such as those in the
Bureau of Prisons whose duties, in connection with detention of persons
suspected or convicted of offenses against the criminal laws of the
United States, require frequent contact with such persons in the
detention, direction, supervision, inspection, training, employment,
care, transportation, or rehabilitation of such persons.
[15] The provision included mandatory retirement for law enforcement
officers under CSRS upon reaching the age of 55 or the completion of 20
years of service if already over that age. Subsequent legislation
raised the mandatory retirement age for LEOs to 57.
[16] The 1986 FERS legislation also contained language including those
positions that are (1) primarily for the protection of officials of the
United States against threats to personal safety, and (2) sufficiently
rigorous that employment opportunities be limited to young and
physically vigorous individuals, as determined by the Director of OPM
considering the recommendations of the employing agency.
[17] Implementing OPM regulations for CSRS and FERS generally provide
that the LEO definition does not include an employee whose primary
duties involve maintaining order, protecting life and property,
guarding against or inspecting for violations of law, or investigating
persons other than those who are suspected or convicted of offenses
against the criminal laws of the United States.
[18] This is a hypothetical example for illustrative purposes only. A
non-LEO federal employee under CSRS is not eligible to retire until he
or she has reached age 55 and has 30 years of creditable service.
[19] The percentages for the defined benefit under both CSRS and FERS
are applied to an individual's highest 3 earning years to compute the
benefit amount.
[20] First, if an agency head judges that the public interest so
requires, that agency head may exempt such an employee from mandatory
separation until that employee becomes 60 years of age. In addition,
the President, by executive order, may exempt an employee (other than a
member of the Capitol Police or Supreme Court Police) from mandatory
separation if the President determines the public interest so requires.
5 U.S.C. §§ 8335(b), (e); 5 U.S.C. §§ 8425(b), (e).
[21] A recent MSPB case also affects agencies' hiring of preference
eligible veterans beyond an agency's maximum entry age for a position.
In Isabella v. Department of State and Office of Personnel Management,
109 M.S.P.R. 453 (2008), the MSPB held, in general, that a federal
agency is required to waive a maximum entry age rule for a preference-
eligible veteran unless the agency can establish that the entry age
rule is essential to the performance of the duties of the position.
[22] Under certain circumstances, OPM also has the authority to
establish higher minimum rates of basic pay, otherwise know as "special
rates," for GS employees to address recruitment or retention problems.
Such employees are entitled to the higher of the special rate or the
applicable GS locality-adjusted rate of pay. According to OPM, only a
small percentage of LEOs receive such OPM-established special rates,
most of which are medical personnel working at correctional
institutions. All FBI Police receive a special rate.
[23] Premium pay is subject to both biweekly and annual caps imposed by
5 U.S.C. 5547 (i.e., the biweekly or annual locality rate for GS-15,
step 10, in most cases).
[24] Under FERS, for example, an employing agency makes a determination
whether the duties of a position are (1) primarily the investigation,
apprehension, or detention of individuals suspected or convicted of
offenses against the criminal laws of the United States, and (2)
sufficiently rigorous that employment opportunities are required to be
limited to young and physically vigorous individuals. Terms such as
"primary duties" and "rigorous position" are defined in OPM
regulations.
[25] 5 C.F.R. §§ 831.911(a) and 842.808(a).
[26] Nuclear Materials Couriers are responsible for performing or
supervising the safe and secure transportation of sensitive nuclear
materials owned or controlled by the Department of Energy.
[27] MSPB's statutory functions include (1) providing for independent
adjudication of appeals of personnel actions for federal employees, and
(2) conducting studies of Federal merit systems and related issues.
According to MSPB, it serves as an independent, bipartisan guardian of
the merit systems under which Federal employees work.
[28] For example, bills introduced in previous sessions of Congress
which, if enacted, would have provided law enforcement retirement
coverage for (1) certain IRS employees whose duties are primarily the
collection of delinquent taxes and the securing of delinquent returns,
(2) federal employees not otherwise covered by the term "law
enforcement officer" whose duties include the investigation or
apprehension of suspected or convicted individuals and who are
authorized to carry a firearm, and (3) Assistant U. S. Attorneys.
[29] See the Strom Thurmond National Defense Authorization Act for
Fiscal Year 1999 Pub. L. No. 105-261, 112 Stat. 1920 (1998). With
agency support, this legislation made Nuclear Materials Couriers
eligible for immediate retirement after completing 25 years of
qualifying service (or 20 years of qualifying service upon reaching 50
years of age), like the U.S. Capitol Police, the Supreme Court Police,
firefighters, and "law enforcement officers." Among other provisions,
the legislation also made Nuclear Materials Couriers subject to (1) the
annuity computation formula now also applicable to the U.S. Capital
Police, the Supreme Court Police, firefighters, and "law enforcement
officers" and (2) mandatory separation provisions.
[30] See, e.g., H.R. 750, H.R. 2878, S. 1729, H.R. 1073, and S. 1354
from the 110th Congress.
[31] Executive Office of U.S. Attorneys views on this subject are
discussed later in this report.
[32] The Congressional Budget Office provides Congress with analysis to
aid in economic and budgetary decisions for those programs covered by
the federal budget. Interagency transfers and long-term costs to the
government for bills beyond 10 years are not acknowledged directly in
proposed bill scoring.
[33] As previously stated, attrition consists of resignations and
transfers from one federal agency to another. For more information on
how we calculated attrition rates, see appendix I.
[34] The government-wide population of law enforcement-related
personnel receiving special pay is approximately 2 percent of the total
law enforcement and related population and totals approximately 2,800.
[35] Although not included in the governmentwide or DHS-wide analyses
of attrition in law enforcement-related personnel, the Transportation
Security Administration's Transportation Security Officer position
accounted for approximately 51,000 employees in fiscal year 2008 and
had an average attrition rate of 15.1 percent from fiscal years 2004
through 2008.
[36] According to the FBI, in fiscal year 2008, the FBI Police
experienced a loss of 41 employees from the Unit. Of these 41
employees, 24 left for other Bureau positions, 4 left to receive a
Special Agent position, 15 were promoted to other Bureau positions, and
the remaining 5 went to positions in different career paths.
[37] Percentages presented above do not add up to 100 percent due to
rounding.
[38] GAO, Federal Uniformed Police: Selected Data on Pay, Recruitment,
and Retention at 13 Police Forces in the Washington, D.C., Metropolitan
Area, [hyperlink, http://www.gao.gov/products/GAO-03-658] (Washington,
D.C.: June 13, 2003).
[39] The EHRI is one of five OPM-led e-Government initiatives designed
to leverage the benefits of information technology in line with the
President's Management Agenda, which was announced in the summer of
2001. In support of this agenda, The Office of Management and Budget
has mandated that all executive branch agencies eliminate paper
personnel folders by October 2010. OPM's CPDF is to be phased out and
completely replaced with EHRI by the end of fiscal year 2009, but plans
are for EHRI to house the last 5 fiscal years of archived CPDF data.
Legislative and judicial branch agencies also have the option of
participating in EHRI.
[40] GAO, Federal Workforce: Pay, Recruitment, and Retention of Federal
Employees, [hyperlink, http://www.gao.gov/products/GAO/GGD-87-37]
(Washington, D.C.: Feb. 10 1987).
[41] OPM periodically updates the "normal" actuarial costs and agency
contributions necessary to cover pension costs. According to OPM
actuaries, the actuarial costs and agency contributions were last
updated in 2007 and the next update is scheduled to occur for fiscal
year 2011.
[42] See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161,
121 Stat. 1844, 2075-78 (2007).
[43] H.Comm. on Appropriations, 110th Cong., Committee Print on H.R.
2764/Public Law 110-161, Division E - Department of Homeland Security
Appropriations Act at 1031 (2008), accompanying the Consolidated
Appropriations Act, 2008.
[44] H.Comm. on Appropriations, 110th Cong., Committee Print on H.R.
2638/Public Law 110-329, Division D - Department of Homeland Security
Appropriations Act at 627 (2008), accompanying the Consolidated
Security, Disaster Assistance, and Continuing Appropriations Act, 2009.
[45] Approximately 94 percent of the approximately 20,000 CBP Officers
provided enhanced retirement benefits in fiscal year 2008 were under
FERS and the remaining 6 percent were under CSRS. Although CBP Officers
were provided enhanced retirement benefits beginning in July 2008, some
employee groups have previously been legislatively provided with such
benefits retroactively, which would be at a greater cost to the
employing agency.
[46] 21st Century Department of Justice Appropriations Authorization
Act (Pub. L. No. 107-273, 116 Stat. 1758, 1830 (2002)).
[47] There is a class action lawsuit, King v. United States of America,
No. 07-589 C, currently pending in the United States Court of Federal
Claims, regarding these provisions. The complaint alleges, among other
things, that the 2002 act increased the plaintiffs' pay and benefits
that the defendant has failed to provide. In its motion to dismiss, the
defendant asserted, in general, that the 2002 act conveyed
discretionary authority to establish such a permanent police force and
that the FBI has not yet established such a permanent police force. The
defendant's motion to dismiss further provides, in part, that the FBI
determined that implementation would not be feasible given the
potential fiscal impact that the retirement system issues created.
[48] According to OPM actuaries, as of April 2009, four out of five
federal employees were covered by FERS.
[49] This figure was calculated using fiscal year 2008 population data
and assumed that approximately 25,000 personnel would have been granted
enhanced retirement benefits if these pieces of legislation had passed.
We also assumed that the employing agency would have had to contribute
an additional $10,000 for each position based on the funding
appropriated for CBP Officer retirement benefits in fiscal year 2009.
[50] The Civil Service Retirement and Disability Fund is a trust fund
covering the defined benefit components of CSRS and FERS.
[51] According to OPM actuaries, as of September 2007, the Civil
Service Retirement and Disability Fund had net assets of $706.4 billion
available for benefit payments under both CSRS and FERS, as well as
accrued liability under the plans of $634.5 billion. In May 2009, OPM
actuaries stated that the fund is not in danger of becoming insolvent
and projected there is no point over the next 75 years at which the
fund will become exhausted.
[52] GAO, Fiscal Stewardship: A Critical Challenge Facing our Nation,
[hyperlink, http://www.gao.gov/products/GAO-07-362SP] (Washington,
D.C.: Jan. 31, 2007) and A Call for Stewardship: Enhancing the Federal
Government's Ability to Address Key Fiscal and Other 21st Century
Challenges, [hyperlink, http://www.gao.gov/products/GAO-08-93SP],
(Washington, D.C.: Dec. 17 2007).
[53] OPM implementing regulations for employees covered by FERS
generally provide, in part, that the definition of the term "law
enforcement officer" does not include an employee whose primary duties
involve maintaining order, protecting life and property, guarding
against or inspecting for violations of law, or investigating persons
other than those who are suspected or convicted of offenses against the
criminal laws of the United States. 5 C.F.R. § 842.802.
[54] In addition, as discussed earlier, in 2002, the 21st Century
Department of Justice Appropriations Authorization Act provided that
the Director of the FBI may establish a permanent police force, with
specified enhanced retirement benefits, to be known as the FBI Police.
[55] GAO, Human Capital: Key Principles for Effective Strategic
Workforce Planning, [hyperlink, http://www.gao.gov/products/GAO-04-39]
(Washington, D.C.: Dec. 11 2003).
[56] GAO, A Model of Strategic Human Capital Management, [hyperlink,
http://www.gao.gov/products/GAO-02-373SP] (Washington, D.C.: March 15,
2002).
[57] At agency discretion, certain employees may receive
administratively uncontrollable overtime pay equal to 10 percent to 25
percent of their basic pay.
[58] GAO, FBI Transformation: Human Capital Strategies May Assist the
FBI in Its Commitment to Address Top Priorities, [hyperlink,
http://www.gao.gov/products/GAO-04-817T] (Washington, D.C.: June 3,
2004).
[59] Accompanying some of these monetary incentives are service
agreements for specified time periods and requirements that the
incentive not exceed 25 percent of the employee's annual rate of basic
pay multiplied by the number of years (including fractions of a year)
in the service period (not to exceed 4 years). With OPM approval, this
cap may be increased to 50 percent, based on a critical agency need, as
long as the total incentive does not exceed 100 percent of the
employee's annual rate of basic pay. A recruitment or relocation
incentive may be paid as an initial lump-sum payment at the beginning
of the service period, in installments throughout the service period,
as a final lump-sum payment upon completion of the service period, or
in a combination of these methods.
[60] In May 2009, the Director of OPM issued a memorandum requesting
that department and agency heads review their use of recruitment,
relocation, and retention incentives to ensure that ongoing and new
authorizations for payments to employees are used only when necessary
to support their mission and program needs. The memorandum further
stated that the cost of using any of these pay flexibilities should be
weighed against the benefits to be gained. In July 2009, the Director
of OPM issued a second memo that, among other things, requests agencies
to review, and if necessary, update their use of recruitment,
relocation, and retention incentives. The memo also states that OPM is
conducting a detailed review on the use of recruitment, relocation, and
retention incentives in the agencies where the incentives are paid most
often to identify ways to strengthen the effectiveness of the program.
[61] According to ATF, the bureau recognizes the contributions of its
law enforcement covered personnel who conduct a substantial amount of
their duties and responsibilities using foreign languages with monetary
awards. As part of the Health Improvement Program, the agency maintains
a fully-equipped fitness center at the National Headquarters Building
and it partially funds the enrollment of employees stationed in other
locations in local fitness centers. Employees covered by the law
enforcement provisions are allowed to participate in physical fitness
activities for up to 4 hours each week during their official duty
hours. Non-law enforcement covered personnel can participate in
physical fitness activities for up to 3 hours per week.
[62] OPM, Report to Congress: Recruitment, Retention, and Relocation
Incentives Calendar Year 2007 (September 2008) and OPM, Report to
Congress: Recruitment, Retention, and Relocation Incentives Calendar
Year 2006 (September 2007).
[63] For calendar year 2007, DHS's submission to OPM included data on
the number of retention incentives paid in calendar year 2007 to GS-
0080 (security specialists) and GS-0083 (police officers) for services
performed in calendar year 2006. However, these incentives were
terminated effective January 6, 2007.
[64] The other departments that reported their use of retention
incentives in OPM's Recruitment, Retention, and Relocation Incentives
reports for 2006 and 2007 included the Departments of Agriculture,
Commerce, Defense, Education, Health and Human Services, Housing and
Urban Development, Interior, Labor, State, Transportation, and Veterans
Affairs. To compare DHS, DOJ, and Treasury's use of retention
incentives to the other reporting departments, we used the average
incentive awarded as reported to OPM and we compared the percentage of
personnel awarded the incentives during fiscal years 2006 and 2007,
based on our calculations.
[65] GAO, Military Personnel: DOD Needs to Improve the Transparency and
Reassess the Reasonableness, Appropriateness, Affordability, and
Sustainability of Its Military Compensation System, [hyperlink,
http://www.gao.gov/products/GAO-05-798] (Washington, D.C.: July 19,
2005).
[66] Section 13811 of the Omnibus Budget Reconciliation Act of 1993
(Pub. L. No. 103-66, 107 Stat. 312, 668-70 (1993)), as amended, is
commonly referred to as the Customs Officer Pay Reform Act (COPRA) but
has also been referred to as the Customs Officers Pay Reform Amendments
(COPRA), and the Customs Overtime Pay Reform Act (COPRA).
[67] DHS, DOJ, and Department of the Treasury employed approximately 91
percent of all federal law enforcement personnel receiving LEO
retirement benefits or similarly enhanced retirement benefits in fiscal
year 2008, approximately 75 percent of personnel employed in law
enforcement-related occupations not receiving enhanced retirement
benefits, and approximately 51 percent of personnel employed in law
enforcement-related occupations receiving special pay but not receiving
enhanced retirement benefits. Special pay refers to the nonstandard
basic pay system applied to certain law enforcement-related personnel
that do not currently receive enhanced retirement benefits such as U.S.
Secret Service Police (occupation series 0083).
[68] For the purposes of this review, we analyzed CPDF data beginning
with fiscal year 2004 because this was the first full fiscal year to
include DHS personnel. Also, we analyzed CPDF data ending with fiscal
year 2008 because this was the most recent fiscal year available.
[69] GAO, OPM's Central Personnel Data File: Data Appears Sufficiently
Reliable to Meet Most Customer Needs, [hyperlink,
http://www.gao.gov/products/GAO/GGD-98-199] (Washington, D.C.:
September 30, 1998). Also, in a document dated February 28, 2008, an
OPM official confirmed that OPM continues to follow the CPDF data
quality standards and procedures contained in our 1998 report.
[70] See appendix IV for more details regarding special pay.
[71] Fiscal year 2007 data were the latest available when we analyzed
the moves from positions with enhanced retirement benefits to positions
without enhanced retirement benefits.
[72] GAO, FBI Transformation: Human Capital Strategies May Assist the
FBI in Its Commitment to Address Top Priorities, [hyperlink,
http://www.gao.gov/products/GAO-04-817T] (Washington, D.C.: June 3,
2004).and Military Personnel: DOD Needs to Improve the Transparency and
Reassess the Reasonableness, Appropriateness, Affordability, and
Sustainability of Its Military Compensation System, [hyperlink,
http://www.gao.gov/products/GAO-05-798] (Washington, D.C.: July 19,
2005).
[73] The statutory definition of "law enforcement officer" for Civil
Service Retirement System (CSRS) purposes is set out at 5 U.S.C.
8331(20). OPM's implementing regulations are found at 5 C.F.R. Part
831, Subpart I.
[74] The Federal Employees Retirement System (FERS) definition of "law
enforcement officer" is set out in 5 U.S.C. 8401(17). OPM's
implementing regulations are found at 5 C.F.R. Part 842, Subpart H.
[75] The CSRS LEO definition additionally provides that the term
"detention" includes the duties of certain specified prison support
staff, such as employees of the Bureau of Prisons, whose duties in
connection with individuals in detention suspected or convicted of
specified criminal offenses "require frequent (as determined by the
appropriate administrative authority with the concurrence of the Office
[OPM]) direct contact with these individuals in their detention,
direction, supervision, inspection, training, employment, care,
transportation, or rehabilitation."
[76] Similar to the CSRS provisions, the FERS LEO provisions include
the duties of certain specified prison support staff. Included under
the FERS LEO provisions are certain specified prison support staff,
such as employees of the Bureau of Prisons, whose duties in connection
with individuals in detention suspected or convicted of specified
criminal offenses require frequent direct contact with such
individuals, and are sufficiently rigorous that employment
opportunities should be limited to young and physically vigorous
individuals, as determined by the head of the employing agency.
[77] Generally, under the FERS statutory provisions, this determination
is to be made by the Director of OPM considering the recommendations of
the employing agency.
[78] H.R. Rep. No. 100-374 at 21 (1987).
[79] In addition, the CSRS and FERS definitions, in general, have been
amended to include the duties of certain federal correctional
employees, such as those in the Bureau of Prisons, whose duties in
connection with persons in detention suspected or convicted of offenses
against the criminal laws of the U.S. require frequent direct contact
with such persons. The FERS provisions include the previously mentioned
rigorous duty standard.
[80] The MSPB's statutory functions include (1) providing for
independent adjudication of appeals of personnel actions for federal
employees, and (2) conducting studies of federal merit systems and
related issues. According to MSPB, it serves as an independent,
bipartisan guardian of the merit systems under which federal employees
work.
[81] A 2007 MSPB decision, Haut v. Department of the Interior, 2007
MSPB 1366 (2007), notes that through case law, this "young and
physically vigorous" requirement also applies to employees seeking law
enforcement officer retirement credit under CSRS (citing Houck, et al.,
v. Department of the Navy, 82 M.S.P.R. 7, 10 (1999); Bingaman v.
Department of the Treasury, 127 F.3d 1431, 1435 (Fed. Cir. 1997)).
[82] See, Ferrier v. Office of Personnel Management, 60 M.S.P.R. 342,
345 (1994).
[83] Watson v. Department of the Navy, 262 F.3d 1292, 1299 (Fed. Cir.
2001) (citing S. Rep. No. 93-948, at 2 (1074), reprinted in
U.S.C.C.A.N. 3698, 3699), cert. denied, 534 U.S. 1083 (2002).
[84] Watson v. Department of the Navy, 86 M.S.P.R. 318, 321 (2000).
[85] Cole v. Department of the Interior, 2007 MSPB LEXIS 4819 (2007).
[86] Bingaman, 127 F.3d at 1436.
[87] Cole, 2007 MSPB LEXIS 4819 (2007).
[88] Watson, 262 F.3d at 1303.
[89] Bingaman, 127 F.3d 1431, 1435 (quoting Morgan v. Office of Pers.
Mgmt., 773 F.2d 282, 286-87 (Fed. Cir. 1985)).
[90] Crowley v. United States, 398 F.3d 1329, 1338 (Fed. Cir. 2005).
[91] Id.
[92] Id.
[93] Id. at 1339.
[94] Id.
[95] Id.
[96] Id.
[97] For example, under CSRS, an employee who is separated from the
service after becoming 50 years of age and completing 20 years of
service as a law enforcement officer, firefighter, Nuclear Materials
Courier, or Customs and Border Patrol officer, or any combination of
such service totaling at least 20 years, is entitled to an annuity.
[98] Section 101(c) of the Federal Workforce Flexibility Act of 2004
(Pub. L. No. 108-411, 118 Stat. 2305 (2004)) requires OPM to submit an
annual report to specified committees of the House and Senate during
calendar years 2005 through 2009. The act also requires that OPM
include agencies' use of recruitment or relocation incentives; however,
the scope of our analysis does not include these incentives.
[99] 5 U.S.C. §§ 5753 and 5754 use the term "bonus"; however, OPM uses
the term "incentive" to differentiate the monetary incentive for an
individual or group to accept a new position or to remain employed in
the current position from the payments which are used to reward
individual, or group, for quality of performance (the usual connotation
of "bonus").
[100] Authorized under 5 U.S.C. 5754 and 5CFR, part 575, subpart C.
[101] Because the new incentive authorities were not implemented until
May 2005, the reporting period for the incentive use does not cover the
entire 2005 calendar year. Therefore, valid comparisons of 2005 to 2006
and 2007 cannot be made and are thus not included in this appendix.
[End of section]
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