AFGE 2011 Issue Papers Table of Contents INTRODUCTION Federal Pay………………………………………………………………………….……..……1 Federal Employees’ Health Benefits Program……………………………………………..10 Federal Retirement……………………………………………………………………………16 Effective Representation of Federal Employees (Official Time)………………................20 Back to the Future: Arbitrary Cuts in Civil Servants………………………………………24 Sourcing: Complying with the Law…………………………………………………….....…34 Transportation Security Administration and TSOs…………………………………….…..42 Whistleblower Protection………………………………………………………………….….49 Domestic Partnership Benefits………………………………………………………………51 Employment Non-Discrimination Act………………………………………………………..56 Paid Parental Leave…………………………………………………………………………..58 One America, Many Voices……………………………………………………………...…...61 Department of Veterans Affairs………………………………………………………………63 Department of Defense…………………………….……………………….………………...74 Federal Prisons……………………………..……………………………………………….…89 Environmental Protection Agency……………………………………………………...…..102 Social Security Administration………………………………………………………………121 National Guard Technicians……………………………...…………………………………124 District of Columbia Workers………………………………………………………………..126 Equal Employment Opportunity Commission…………………………………………......130 INTRODUCTION BEEN THERE, DONE THAT, WON’T DO THAT AGAIN Recommendations to slash the federal civil service by hundreds of thousands of government workers in order to undertake more wasteful privatization. Threats of government shutdowns because of Congressional refusals to raise the debt ceiling or pass appropriations bills. Proposals to slash federal employee pay and benefits in order to pay for tax cuts skewed towards the very rich. With those initiatives being considered by a radical new House Republican leadership that scapegoats federal employees coupled with a Democratic Administration that may be all too willing to sacrifice the interests of federal employees. That’s the inhospitable political landscape federal employees face in 2011. But it is also remarkably similar to the political landscape AFGE faced in the mid-1990’s. As the 112th Congress begins, AFGE Activists can take inspiration from history--that we fought these battles before, some of them for several years, and won all three. And if AFGE members--Democrats, Republicans, and Independents—work together again, there is no reason why we won’t prevail again. Downsizing That was then: The Federal Workforce Restructuring Act of 1994 required the federal civil service to be reduced by approximately one-tenth. Even before the legislation had been enacted, senior officials complained to the Office of Management and Budget that personnel ceilings were forcing their agencies to contract out functions that could be performed more efficiently in-house. In the following years, report after report documented that agencies were contracting out functions regardless of cost, risk, policy, or even the law because of arbitrary downsizing. AFGE led the effort to clean up the mess caused by indiscriminate privatization, working with the Congress to pass laws that prevented agencies from giving work to contractors without first conducting formal cost comparisons (2004, 2006, 2007, 2009), required agencies to inventory their service contracts so that they can identify contracts that cost too much, aren’t working, or include functions that never should have been outsourced (2007, 2009); and rebalance their workforces through insourcing (2007, 2008). Today: In a sad testament to the impoverishment of our political culture, the handpicked chairs of the President’s Deficit Commission recommended in December 2010 that the federal civil service be reduced by, you guessed it, one-tenth. Now, leading House Republicans are insisting that our workforce be arbitrarily reduced by 15%. Shutdowns That was then: House Republican leaders shut down the federal government for two extended periods during the winter of 1995-1996 in order to implement what they acknowledged to be a radical anti-government agenda, one which would have slashed spending for Medicare, Medicaid, education, environmental protection, and the safety net for the poor. The first shutdown lasted from November 14 through November 19, 1995. The second shutdown lasted from December 16, 1995, through January 6, 1996. Both of these shutdowns were caused by the refusal of Congressional Republican leaders, particularly in the House, to pass reasonable appropriations bills, i.e., funding measures which pay for the programs carried out by federal employees. However, Congressional Republican leaders also threatened to shut down the federal government by failing to raise the debt ceiling. Federal employees were caught in the political cross-fire, and large parts of the federal civil service workforce were furloughed without pay. AFGE Activists proved to the public the value of federal employees and the important services they provide, and Congressional Republican leaders stopped using federal employees as pawns in their budget battles. In fact, adversely affected federal employees were made whole for the time during which they were furloughed. There was bipartisan agreement that holding appropriations bills hostage was wasteful, disruptive, and irresponsible; it was also understood that a failure to promptly raise the debt ceiling would shake investor confidence, raise interest rates, and just generally increase the cost to taxpayers of government borrowing. Many Republican leaders believed that the public’s dismay over their shutdown strategy helped to fuel President Clinton’s successful re-election campaign. Today: An increasing number of rank-and-file Congressional Republicans talk openly of forcing a government shutdown in order to gain the upper hand in the upcoming budget battles with President Obama. A continuing resolution was passed during the lameduck 111th Congress that would keep the government funded through March 4, 2011. In order to avoid a government shutdown, the new Congress will have to pass either the FY11 appropriations bills or yet another continuing resolution. Also in the first half of 2011, the Congress will have to pass an extension of the debt ceiling. Economists predict that a failure to do would jeopardize the American economy’s fragile recovery. Cuts in Compensation That was then: The 105th Congress passed massive tax cuts for the wealthy and corporations. In order to pay in part for those cuts, Congress proposed significant cuts in the benefits of the working- and middle-class Americans who served as federal employees. Among the cuts proposed by Congressional Republican leaders: increase the retirement tax by 2.5% (i.e., the amount which federal employees must contribute to the retirement trust fund); delay the cost-of-living adjustment (COLA) for federal retirees; change the formula for determining retirement benefits from the highest three years of salary to the highest five years, and slash the agency FEHBP contribution from 72% to 55%, costing the average federal employee an additional $500 per year. Thanks to AFGE, the 1997 Balanced Budget Act increased the retirement tax by just 0.5% and the COLA was delayed only until April. Changes to “high five” and FEHBP were defeated. Later on, AFGE led the successful fight to repeal the retirement tax hike and the COLA delay. Today: The co-chairs of the President’s Deficit Commission in December 2010 recommended that: the COLA be reduced so that it is no longer representative of actual cost increases; retirement annuities should be based on the highest five years of service, costing federal employees 3-5% annually when they are retired; Federal Employees Retirement System enrollees be required to substantially increase their retirement contributions by 5-7% of their paychecks; and Federal employees increase their contributions towards FEHBP from the current level of 30%, on average, to 63%, over 20 years. Federal Pay Introduction Under the Federal Employees Pay Comparability Act (FEPCA), federal employees who are paid under the General Schedule are supposed to receive salaries that are roughly 95 percent of “market comparability.” This bipartisan law, enacted in 1990, established the principle that federal pay policy should be governed by the market, and set salaries at levels just five percent less than the standards set in the private sector. FEPCA required that the government produce a measure of market comparability on a regional basis, and provide annual adjustments that simultaneously close any measured gaps and make certain that no existing gap become larger. This was to be accomplished by providing federal employees with annual pay adjustments that had two components: one locality-based gap-closing adjustment, and one nationwide across-the-board adjustment. The locality adjustments are based on measures of pay gaps that use Bureau of Labor Statistics (BLS) data from surveys that compare, on a job-by-job basis, salaries in the federal government and those in the private sector and state and local government. The nationwide adjustments are based on BLS’s Employment Cost Index (ECI), a broad measure of changes in private sector wages and salaries from across all industries and regions (the FEPCA formula is ECI – 0.5 percent). Had the schedule for closing the pay gaps put forth in FEPCA been followed, comparability would have been realized in 2002. But in each year since 1995, Congress and successive presidents have found reason to reduce the size of both the locality and ECI-based adjustments dictated by the law, variously citing economic emergency and deficit-cutting as rationale. In spite of the repeated use of alternatives to the terms of FEPCA, there has been strong, consistent and broad bipartisan support for the goal of paying federal employees salaries that are comparable to those paid by private firms and state and local governments that employ people for the same kinds of jobs. AFGE will work to maintain support for the principle of pay comparability that uses job-by-job salary comparisons for all federal pay systems. The Two-Year Freeze How did a two-year freeze on the wages and salaries of federal employees become our nation’s response to the collapse of the housing bubble, the financial crisis caused by this collapse, the bailout of large banks, insurance companies, and Wall Street firms; and the fact that health care costs will continue to soar in spite of the passage of health care reform? As wrong as it may seem, a consensus formed in late 2010 around the idea that because so many working class people were experiencing economic hardship as a result of the corrupt practices of banks and Wall Street firms, federal employees should experience hardship as well, and a two-year federal pay freeze was enacted at the close of the 111th Congress. Nobel Laureate Paul Krugman referred to the freeze as “cynical deficit reduction theater” that was “a literally cheap trick that only sounds impressive.” He also confirmed that “federal salaries are, on average, somewhat less than those of private sector workers with equivalent qualifications.” But none of these facts seemed to matter to President Obama or the members of Congress who voted for the freeze. They were, at least to some degree, responding to a well-orchestrated campaign by USA Today, the Heritage Foundation, and the Cato Institute that used a combination of sophistry and outright lies to make a case that federal employees are overpaid relative to their private sector counterparts. Facts are stubborn things; and whatever may be our wishes, our inclinations, the dictates of our passions, they cannot alter the state of facts and evidence. John Adams, in defense of the British soldiers on trial for the Boston Massacre, December 4, 1770 In spite of the pay freeze, going forward AFGE will urge lawmakers to rely upon “the state of facts and evidence” regarding federal pay. And the facts are that even prior to the freeze, federal wages and salaries were lower than the wages and salaries in the private sector and state and local government, when compared on a job-by-job basis both nationally and regionally. The Federal Salary Council (FSC), a statutory body responsible for examining objective data that compares what private sector and state and local government employers pay for the jobs federal employees perform to what the federal government pays, has found consistently that federal employees are underpaid. The amounts of underpayment vary by locality, but the advantage in all places goes to the private sector. The Campaign Against the Truth on Federal Pay Since the summer of 2010, USA Today has placed numerous articles on its front page that twist the facts surrounding federal pay to pretend that federal employees are overcompensated. The articles have compared gross averages in the private sector to average salaries of the current federal workforce, manufactured data on the dollar value of private sector fringe benefits and compared it to distorted data on the cost of federal benefits, and sensationalized the fact that a growing number of federal salaries have exceeded $100,000 per year. The Washington Post helped to promote the myth of overpayment in October 2010 by commissioning a poll that asked Americans whether they believed that federal employees were underpaid or overpaid, implicitly giving support to the notion that such issues are a matter of opinion rather than fact. The 2 results of the poll reflected only how well the USA Today misinformation campaign had worked. To bolster the false impression of federal employee overcompensation even more, the Heritage Foundation’s James Sherk published a deeply flawed econometric study (http://www.heritage.org/research/reports/2010/07/comparing-pay-in-the-federalgovernment-and-the-private-sector) with a headline-grabbing claim that the government “overtaxes all Americans” by providing federal employee pay and benefits “on the order of 30 percent to 40 percent above similarly skilled private sector workers.” Sherk claimed that federal salaries are “22 percent above private sector workers.” In an odd coincidence, Sherk’s numbers are the mirror opposite of the calculations performed by the economists and pay experts from the Bureau of Labor Statistics (BLS) and the Office of Personnel Management (OPM), whose data for the same year showed federal pay lagging behind the private sector by 22 percent. Why did Sherk and OPM/BLS come up with opposite numbers? The simple answer is that the Sherk study has highly politicized assumptions, and is based on data that are entirely inappropriate for use in salary comparisons. The BLS and OPM results derive from objective calculations and high quality data from the BLS’s National Compensation Survey (NCS), a survey designed specifically for use by private and public employers to gauge salary rates and differences by occupation and location. Sherk used Current Population Survey (CPS) data from interviews with random individuals who were asked how much they made, how much their employer spent on their benefits, and what their occupation was. Another source of data used by purveyors of the myth of the overpaid federal employee is the Bureau of Economic Analysis (BEA), part of the Commerce Department. The BEA itself warns the public not to use its data for comparing federal and non-federal salaries, noting on its website that “federal compensation estimates include sizable payments for unfunded liabilities that distort comparisons with privatesector compensation. For 2006, for example, the value of these payments for unfunded liability were\ $28.6 billion or 10.7 percent of total federal civilian compensation” (http://www.bea.gov/faq/index.cfm?faq_id=320&start=0&cat_id=0). Further, both these data and Sherk’s are “bounded” at the top and bottom and exclude private salaries lower than $21,544 and higher than $190,119. Thus, even though salary and bonuses for those working in Wall Street securities and financial industries routinely run into the millions, the BEA dataset artificially caps salaries at under $200,000. The Federal Salary Council Approach The Federal Salary Council uses BLS data gathered by trained data collectors who visit businesses and government agencies and record detailed information about the job 3 duties assigned to workers at each salary level and at each location. In addition, the dataset used by Sherk asks individuals to identify their occupations by broad industrial categories; e.g., a lawyer would have an occupation called “legal services” as would many others with jobs in that industry. In contrast, the BLS data records, for example, a salary for a “senior attorney with at least ten years of experience in administrative law and litigation in the area of securities law.” The legal profession includes a broad range of salaries, with the majority of lawyers earning modest salaries for providing routine services such as title searches, real estate closings, preparation of simple wills, and representation in small claims court. While many attorneys employed by the government perform similarly routine functions, many more are responsible for complex litigation and regulatory oversight. The data in the National Compensation Survey capture these differences and apply them to the calculation of the gap between federal and private sector pay exactly according to their weight in the overall distribution of federal jobs. Another difference that explains the opposite results of Sherk and the BLS and OPM is methodological. Sherk uses the “human capital” approach, comparing the pay of individuals on the basis of personal attributes such as age, industry, geographical location, gender, race, ethnicity, educational attainment, occupation and tenure. One appalling result of Sherk’s approach is that he interprets the fact that the federal government is less likely to discriminate against women and minorities in terms of pay as an instance of the government “overpaying” relative to the private sector. In contrast to Sherk, the BLS and OPM use a method that matches federal jobs with jobs in the private sector that are similar not only in terms of occupation but also that match levels of responsibility, and levels of expertise required. The personal attributes of the job holder are not included in the calculation, only job description, duties, and responsibilities. In this careful analysis, which focuses on the jobs of the actual federal workforce, the universal and consistent finding is that federal employees are underpaid relative to their counterparts in both the private sector and state and local government. While the human capital approach is a valid way to reveal patterns of discrimination against individuals, it is not appropriate for pay-setting. Unfortunately, it has proved to be extremely valuable for scoring cheap political points, as President Obama’s adoption of the pay freeze idea attests. Just ten months prior to announcing the freeze, President Obama’s budget explained why the comparisons being hyped in the media and conservative think tanks were misleading. He noted that “since 1989 federal and private sector raises have never diverged by more than one percentage point…and the adjustments have offset each other so that the average difference has been only one tenth of one percentage point” over ten years. He went on to describe the profound differences between the federal 4 and private sector workforces, noting that “about 20 percent of federal workers have a master’s degree, professional degree, or doctorate versus only 12 percent in the private sector. A full 51 percent of federal employees have at least a college degree compared to 35 percent in the private sector.” (See the President’s FY 2011 Budget, Chapter 10 “Improving the Federal Workforce” p.99-101). The gratuitous nature of the freeze was revealed in President Obama’s “belt tightening” justification. He did not pretend to believe the lie that federal employees are overpaid relative to those performing the same type of work in the private sector. He also did not pretend to believe that the $2 billion savings in 2011, or the $5 billion savings in 2012 would make a dent in the deficit. In fact, using the macroeconomic model developed by Obama administration economists Christine Romer and Jared Bernstein to measure the impact of the stimulus, the Center for Economic and Policy Research estimates that the federal pay freeze will reduce GDP by 0.007 percent in 2011 and by 0.018 percent in 2012, “implying drops in private sector employment in these years of 7,000 and 18,000 jobs respectively.” http://www.cepr.net/index.php/blogs/beat-the-press/president-obamaproposes-reducing-private-sector-employment-by-7000-in-2011-and-18000-in-2012. The pay freeze had no justification other than one single day when many elected Republicans praised President Obama for joining their effort to reduce living standards of America’s working and middle class. AFGE will work with Members of Congress to thaw the federal pay freeze so that the government can once again begin to make progress in eliminating the pay gap between federal and non-federal salaries, and help the federal government recruit and retain the high quality workforce necessary to carry out its crucial missions. The Federal Wage System: Blue Collar Federal Pay In November 2010, the Federal Prevailing Rate Advisory Committee (FPRAC) voted to end the practice of treating blue collar and white collar federal employees differently with regard to the drawing of local labor market boundaries. The effect of the FPRACsupported regulation would be to limit each non-Rest of U.S. General Schedule (GS) locality to one Federal Wage System(FWS) local wage area. The new policy awaits approval by the OPM Director who must submit it for public review as a proposed regulation before final adoption. Unifying FWS and GS Locality Boundaries Brings the FWS into the 21st Century One important argument in favor of unifying FWS local wage areas and GS localities is that it modernizes the prevailing rate system’s recognition of what constitutes a local labor market. Chapter 53 of Title 5 directs OPM to maintain “a continuing program of maintenance and improvement designed to keep the prevailing rate system fully abreast of changing conditions, practices, and techniques both in and out of the Government of 5 the United States.” When the prevailing rate system’s current local wage area boundary-drawing criteria were established 50 years ago, the white collar pay system did not yet vary salaries on the basis of local labor markets. The boundaries were drawn around federal facilities that employed large numbers of blue collar federal employees. Many of those federal blue collar jobs and facilities no longer exist, but the separate facility-based wage areas do still exist. These old wage areas also reflect a time before the expansion of metropolitan areas and the establishment of new highways and public transit systems. In addition, the enactment of FEPCA in 1990 led to the establishment of modern criteria for defining the local labor markets, putting an emphasis on commuting data from the decennial census. These data are widely used by employers in both the public and private sectors to define local labor markets. In contrast, the FWS continues to draw boundaries on the basis of custom, tradition, and often out-of-date information on concentrations of blue collar workers in the private and federal sectors. It is time for FPRAC to recognize that the commuting patterns recognized by the GS system are the most relevant factors for local labor market definitions. Congress Already Treats FWS and GS Equally for Purposes of Annual Pay Adjustments Prior to the freeze, the Congress has voted in each of the last eight years to treat the federal government’s blue and white collar employees the same with regard to annual locality pay adjustments. Recognizing that all FWS employees within a given GS locality deserve to be treated as if they worked in the same local labor market, the Congress has directed federal agencies to provide the same annual percentage pay adjustment to all blue collar workers within a given GS locality. Congress has recognized that this is an important element of the internal equity that it wants federal pay systems to maintain. Indeed, almost all federal agencies with non-GS pay systems that grant locality differentials have voluntarily adopted the GS locality boundary definitions for non-GS employees, including the Transportation Security Administration’s PASS system, the recently discontinued National Security Personnel System (NSPS), and numerous others.1 1 A partial list includes: Agency for International Development’s experts and consultants, Agriculture Department’s experts and consultants and seasonal employees, American Battle Monuments Commission, Commerce Department’s examiners on the board of patent appeals and attorney examiners on the trademark trial and appeal board, Corporation for national and community service, Department of Defense’s military universities and institutes, and the Defense Advanced Research Projects Agency, and various demonstration projects and alternative systems that 6 Maintaining Different Local Labor Market Boundaries for Blue and White Collar Workers is Inequitable Treating blue collar workers as if they are in one local labor market for purposes of annual pay adjustments and as if they are in a different local labor market for purposes of setting underlying base pay is inconsistent and inequitable. It violates basic standards of fairness. The policy makes an invidious distinction among federal employees in pay-setting. Blue collar workers are treated differently from white collar workers for reasons entirely unrelated to the work that they do. It is not and should not be acceptable to treat workers of different races or genders or ages who work in the same location as if they were in different local labor markets; likewise, it should not be acceptable for any employer, and especially not the federal government, to make this distinction on the basis of blue collar vs. white collar work. Disparate Treatment Creates Internal Conflict at the Workplace Continuation of the current practice of treating different federal employees in the same federal workplace as if they work in different localities creates massive inequities and disunity. For example, the Tobyhanna Army Depot is located in the New York City GS emerged from demonstration projects, such as China Lake and National Institute of Standards and Technology; Defense Nuclear Facilities Safety Board, Department of Energy, Department of Education, Environmental Protection Agency, Export-Import Bank, General Services Administration, Department of Homeland Security’s scientists and engineers at its Advanced Research Projects Agency, Coast Guard Academy, and the Secret Service, Department of Interior’s US Park Police, Department of Justice’s immigration judges, Department of Labor’s administrative law judges, National Archives, National Science Foundation, Nuclear Regulatory Commission, Office of Personnel Management’s experts and consultants, Overseas Private Investment Corporation, Peace Corps, Security and Exchange Commission’s economists, Small Business Administration, Smithsonian’s National Zoological Park employees, State Department, including employees at US Mission to the United Nations and Foreign Service Officer pay under 22 USC 3963; Treasury Department’s Bureau of Engraving, Printing, and Bureau of the Mint, U.S. Trade and Development Agency, Department of Veterans’ Affairs numerous title 38 medical employees including physician assistants, optometrists, podiatrists, and expanded-function dental auxiliaries, medical support personal, non-physician, non-dentist, and nonnurse, and members of the Board of Veterans’ Appeals. 7 locality and the Scranton FWS locality. The resulting pay inequities are extremely troubling and indefensible. At Tobyhanna, WG-11 Electronics Mechanics and Production Machinery Mechanics are responsible for highly complex electronics weapons manufacture, repair, modification, configuration, installation, and testing. They are responsible for equipment and machinery that is worth hundreds of millions of dollars and directly affects the progress of war and the well-being of warfighters. The skilled tradesmen and women who perform these jobs work directly with GS personnel, side-by-side, day after day. The blue collar annual pay ranges from $44,928 to $52,416. In the same building at the same time, GS-9 Process Improvements Specialists earn between $53,500 and $69,545 and GS-7 Secretaries earn between $43,738 and $56,863 with a career ladder that makes them eligible for GS-8 salaries of between $48,439 and $62,966. No one is questioning the appropriateness of the Federal Salary Council’s designation of Tobyhanna as being within the New York City commuting area; it is a well-established observable fact, as described by census data. What is questioned is pretending that the blue collar workers at Tobyhanna work in a different location than the white collar workers there. Unifying FWS and GS Locality Boundaries is Not New, Just Overdue In 2008, the Federal Prevailing Rate Advisory Committee (FPRAC) undertook a comprehensive examination of the criteria for defining FWS wage areas. At that time, numerous updates were adopted, including the requirement that wage area boundaries would not split Metropolitan Statistical Areas (MSAs) as defined by the Office of Management and Budget (OMB). The unification of MSAs was justified on the basis of a recognition that the FWS wage areas reflected outdated notions about how far workers in the skilled trades would commute to jobs. Census data that are used to define MSAs proved that commuting patterns in large metropolitan areas that include urban cores, suburbs, and “exurbs,” are similar for workers in all occupations. The next step was to unify the FWS and GS locality boundaries, since the latter are determined by a combination of MSA definitions, commuting patterns, and concentrations of federal employment. However, the Bush administration would not allow the unification of FWS and GS boundaries to go forward, and that is why this element of the modernization of FWS boundary criteria remains to be addressed. Conclusion The federal pay system played no role in the creation of the economic crisis that required massive government spending to resolve. Federal employees did not cause the housing bubble either to inflate or to burst. Federal employees did not engage in speculative investments in derivatives of mortgage securities. Federal employees did not mislead investors, did not outsource jobs to China or Mexico, and did not destroy the financial system. The pay freeze was a cynical ploy to appease those who oppose 8 the missions of almost every executive branch agency and program. Federal employees deserve better than the role of pawn in the war against government. 9 Federal Employees’ Health Benefits Program The Federal employees’ Health Benefits Program (FEHBP), which covers more than eight million federal employees, retirees, and their dependents, is the nation’s largest employer-sponsored health insurance program. FEHBP was affected by the Patient Protection and Affordable Care Act, otherwise known as the healthcare reform law. FEHBP is also a target of the President’s National Commission on Fiscal Responsibility, the “deficit commission,” which recommended dismantling the program and turning it into a voucher program. AFGE strongly opposes the deficit commission’s proposals. The Affordable Care Act and FEHBP Many of the consumer safeguards and structural features of the health care reform package passed by the last Congress were modeled on elements of FEHBP, including the prohibitions against excluding people with pre-existing conditions from insurance coverage, imposing lifetime dollar limits on essential benefits, including costs associated with hospital stays, and dropping people from their policies when they become ill or injured. But the Affordable Care Act also extended to FEHBP participants some new benefits and protections. In 2011, the most notable new benefit is the ability to keep dependents on family coverage plans up to the age of 26. Previously, the dependents of federal employees and retirees were only permitted to remain on their parents’ plans up to the age of 22. This age extension will help many federal employees and their families, especially given the high unemployment rates for young adults and the fact that so many private employers shirk their responsibilities when it comes to providing health insurance benefits. Also thanks to the Affordable Care Act, as of 2011, FEHBP plans will no longer be able to charge any separate copayments for preventive care, including annual screenings. In addition, all the plans will be providing expanded smoking cessation benefits, again with no copayment requirements. These smoking cessation benefits include drugs prescribed to assist with cessation as well as counseling. Beginning in 2014, the income-based government subsidies for individuals to purchase health insurance from state-run “exchanges” will become available. Unfortunately, tens of thousands of federal employees will qualify for these subsidies because their incomes are so low. The numbers of federal employees eligible for subsidized purchase through the exchange will be larger than originally anticipated because of the two-year pay freeze President Obama and the 111th Congress enacted. The subsidies will be calculated partially to limit the share of family income paid out in premiums, and partially on the basis of family size. 10 Some low income federal employees may become eligible, in 2014, for a subsidy through the Affordable Care Act, if their salaries put them and their families within 200 percent of the poverty line and their share of FEHBP premiums exceeds 9.5% of their family incomes. The 200 percent of the poverty line, using 2010 numbers, would include families of four who earn less than about $44,000 per year. But, again using 2010 data, the employee share of premiums under FEHBP rises to 9.5 percent of income only for those employees who earn $30,000 or less. Of course, the combination of the pay freeze and the continued rise in FEHBP premiums means that by 2014, FEHBP premiums will likely be more than 9.5 percent of income for federal employees at much higher salaries. Currently, the combined standards (200 percent of poverty and cost-sharing that does not exceed 9.5 percent of income) cover federal employees in most parts of the country who support their families on salaries up to the middle of a General Schedule Grade 4 (for 2010, 2011 and 2012, Rest of US GS-04-04 is frozen at $30,788). The Act’s scheduled subsidy for a family of four with a GS-4 salary or below is far higher than that which the FEHBP provides to federal employees, as a percent of premium. Simultaneously, although the Act requires participants to pay premiums according to their incomes, the subsidized program in the exchange will allow these federal employees to pay a much lower percentage of their incomes for family health coverage than even the cheapest of FEHBP plans. However, the Affordable Care Act also includes provisions that are damaging to federal employees. The most punitive will be the 40 percent excise tax on “high cost” or “Cadillac” plans that will make FEHBP far less affordable for many federal employees and retirees than it already is. Most disturbing is the fact that this tax will fall on many FEHBP plans whose high costs are not at all a reflection of a rich benefit package. In fact, the highest cost plans in FEHBP are not those with the most comprehensive benefits. The highest cost plans are those that exploit FEHBP’s structural weaknesses by encouraging those with the highest health risks to congregate, and thus their costs reflect the risk group rather than the actuarial value of the benefits offered.. Additionally, many FEHBP plans become high cost because of their political power and the Office of Personnel’s long history of exempting them from cost accounting standards, and acceding to their demands for large annual premium increases. FEHBP contracts are fixed price re-determinable type contracts with retrospective price redetermination. This means that even as the insurance companies receive only a fixed amount per contract year per “covered life”, they are allowed to track their costs internally until the end of the year. The following year, they can claim these costs and recoup any amount they say exceeded their projections from the previous year. They are guaranteed a minimum, fixed profit each year regardless of their performance or the amount of claims they pay... The cost “estimates” on which they base their premium 11 demands are a combination of what they report as the prior year’s experience plus projections for coming year plus their minimum guaranteed profit. As is plain, there is no ability for federal employees to alter the “high cost” of these plans. It is in the FEHBP’s insurance companies’ interests to keep costs and profits high, and benefits low. And to subject the result of this inefficient system, one that propels FEHBP premiums ever-upward without regard to affordability or without any meaningful expansion of benefits to a ‘Cadillac” tax just adds insult to injury. The excise tax is a heavily regressive tax on federal workers, especially those whose incomes are too high to be eligible for the exchange subsidies but are too low to afford employee premiums in excess of $3,000 per year. While the 40 percent tax is levied on the insurance company and is paid on incremental costs over $10,200 for individuals and $27,500 for families, there are already FEHBP HMOs in New York, California, New Jersey and Delaware whose 2011 rates meet the 2018 thresholds. The Deficit Commission’s Proposal to Dismantle FEHBP The language in report of the President’s National Commission on Fiscal Responsibility calls for “transforming the Federal Employees Health Benefits Program (FEHBP) into a defined contribution premium support plan that offers federal employees a fixed subsidy that grows by no more than GDP plus 1 percent each year.” What this means is that instead of paying a percentage of average premiums charged by the insurance companies, as is currently the case, the government would provide a fixed amount of cash each year that employees could use to buy insurance on their own. Under the existing statutory system, if premiums go up by 10 percent, the government’s contribution goes up by around 10 percent. The FEHBP financing formula requires the government to pay 72 percent of the weighted average premium, but no more than 75 percent of any given plan’s premium. Under the Commission proposal, the government’s “defined contribution” or voucher would go up by an amount totally unrelated to the rise in premiums. For example, between 2010 and 2011, FEHBP premiums went up by an average of 7.2 percent per year, and so did the government’s contribution. If the voucher proposal would have been in effect, the government’s “contribution” or voucher would have gone up by GDP + 1%. Last year’s GDP growth was 2.5%. Adding an additional percentage point to that and the voucher would have risen by 3.5%. 12 Current FEHBP formula: 2010 BCBS Standard Option Family: $14,588.60 per year total, government pays $9,777.04 and the employee pays $4,811.56. 2011 BCBS Standard Option Family: $15,682.68 per year total, government pays $10,503.48 and the employee pays $5,179.20. 2010-2011 total premium increase was 7.5%. The government payment went up by 7.4%, and the employee premium went up by 7.6%. Deficit Commission formula: Start with 2010 BCBS Standard Option Annual Family Premium to set voucher amount at $9,777.04 Adjust this amount by GDP + 1 percent or 3.5%: $9,777.04 X 1.035 = $10,119.23 The difference in government support between the two approaches in just one year would have been $384.25 or a 3.8% cut to federal employees. The amount of the cut would grow annually, as health insurance premiums always rise by more than GDP + 1 percent. Employees would have to pay the difference between the rise in premium and the rise in the voucher if they wanted to keep the same plan or level of benefits. When calculating the likely effect of this proposal, it is important to note that GDP does not always increase: In the most recent Great Recession of 2008-2009, GDP dropped by 3.8 percent.2 During that period, FEHBP premiums continued to rise: by an average of 2.9 percent in 2008, and 8 percent in 2009, when the recession was at its worst. Under this proposal, the government’s voucher would have declined, even as premiums soared. The effect of moving to a voucher would be cumulative, because each year’s voucher amount would be calculated on the basis of the previous year. The following chart projects on the likely impact, using current data from Blue Cross/Blue Shield’s Standard Option family plan. It assumes annual GDP growth of 2.7 percent (which has been the average rate from 1973 to the present), and FEHBP premium growth of 7 percent (which has been the average since 2000). The projections assume the voucher adjustment formula recommended by the deficit commission, GDP growth plus one percent, or 3.7 percent annually. 2 In 2001, GDP fell by 0.3%. In 1990-1991, GDP fell by 1.3%. In 1981-1982, GDP fell by 2.9%. And in 1973-1075, GDP fell by 3.1%. 13 Current Law Total Premium Govt. Share Employee Share Employee % 2011 $15,683 $10,503 $5,180 33% 2015 $20,557 $13,767 $6,790 33% 2020 $28,833 $19,309 $9,523 33% 2025 $40,439 $27,082 $13,357 33% 2030 $56,718 $37,984 $18,734 33% Voucher Plan Total Premium Govt. Share Employee Share Employee % $15,683 $10,503 $5,180 33% $20,557 $12,146 $8,411 41% $28,833 $14,565 $14,267 49% $40,439 $17,467 $22,972 57% $56,718 $20,946 $35,772 63% Employee Dollar Loss Cumulative @ 5 year intervals $0 ($3,852) ($20,754) ($58,250) ($127,375) Assumptions: Annual premium growth equals 7%., Annual GDP + 1 = 3.7% The chart shows that in just five years, federal employees would pay $3,852 more than under the current formula. The cumulative cost to switching from the current formula to a voucher formula would cost employees an additional $20,754 over ten years, $58,250 over 15 years, and a whopping $127,375 over 20 years. Over the 20-year period, the government’s share would go from 67% to 37% of premiums. After the two-year pay freeze for 2011-2012, and modest pay raises in 2013, 2014, and 2015, the government’s voucher would cover just 59 percent of the likely BC/BS family premium. Employees’ dollar costs would go up by 62 percent in just the five years between 2011 and 2015. This proposal originated in a Heritage Foundation “backgrounder,” published in 2001 (http://www.heritage.org/research/reports/2001/11/how-washington-can-improve-healthcare-coverage). The Heritage piece criticizes FEHBP’s “artificial restrictions on plan options, including less expensive plans” and recommends getting rid of all legally “mandated benefits,” removing the 75 percent cap on the government’s contribution to a 14 plan, and allowing rollovers of any unspent funds. To make matters worse, Heritage recommended allowing plans selling to federal employees (under the label of FEHBP, however unrecognizable it might become) to charge different premiums to different individuals, based upon age or health risk. Differential premiums combined with the voucher approach would spell disaster for federal employees, no matter what their age or health status. Why did the deficit commission propose this dramatic change? The proposal is presented as a “pilot program” in health care vouchering. The Commissioners write that they hope to use federal employees as guinea pigs to see what happens if you de-link the government’s financing of health care from actual health care costs. If they like what happens to federal employees under the voucher plan, they would advocate extending the same approach for Medicare. Following the description of turning FEHBP into a voucher, they say many on the commission want to “offer seniors a fixed subsidy, adjusted by geographic area and by individual health risk) to purchase health coverage from competing insurers.” They go on to say that “if this type of premium support model successfully holds costs without hindering quality of care in FEHBP”, they want to apply it to Medicare. Of course it will hold down costs only for the government, not for federal workers or the elderly, but the commission’s only objective was to reduce government spending and impoverish workers. 15 Federal Retirement Introduction President Obama’s National Commission on Fiscal Responsibility and Reform released its recommendations in December 2010. For federal employees, some of the most damaging of the Commission’s proposals have to do with retirement benefits. In spite of the commission’s failure to achieve the supermajority support it required for Congressional consideration of its package of cuts, it is likely that some or all of these proposals will be introduced as separate pieces of legislation in the 112th Congress. Although they may be put forward as deficit-cutting measures, the primary rationale offered by their advocates is to encourage the federal government to join other employers in lowering the pay and benefits of America’s working and middle class families, and erasing a previous era’s hard-won improvements in living standards. The proposed cuts to federal retirement include: Changing the formula for calculating annuities, Shifting far more of the cost of funding the system on to employees, Reducing COLAs for FERS and CSRS retirees, Reducing the government’s share of FEHBP premiums for retirees, Raising the retirement age for Social Security The federal retirement systems play no role whatsoever in the creation of the deficit, and reducing benefits to federal workers would have no positive effect on the budget or the economy. These proposals have no justification other than to scapegoat federal employees and retirees for an economic crisis they had no part in creating. As such, AFGE will urge lawmakers to reject all of these attempts to undermine the statutory retirement promises on which federal employees rely. Changing the Formula for Calculating Annuities The President’s commission proposed to change the formula for calculating federal pensions so that they would be based on a worker’s “highest 5” years’ average salary instead of the current “highest 3” years’ average salary. This change would lower benefits by about three to five percent per year for each retiree. A federal employee who earns $40,000 at the end of a 25 year career would lose out on about $14,351. A 47-year-old who earns $50,000 and has 20 years in so far would lose $24,672 in retirement benefits under this plan. See: http://theycutyoupay.afge.org to calculate how large a cut in benefits this change would produce for federal workers at different ages, salaries, and years of service. Overall, 16 this change in formula would reduce federal employees’ annuities by three to five percent a year for as long as they live. Shifting the Cost of Funding FERS on to Employees The President’s commission not only wants to cut federal annuities by lowering the salary basis on which they are calculated, they also want to make federal employees pay much more of the cost of funding the annuities. The commission’s proposal comes straight from a think tank called the Third Way that wants to exploit the fact that some private firms have reduced or eliminated pensions for their employees by urging the federal government to follow suit. The Third Way argues that FERS employees should pay an additional 7% of their salaries into the retirement system, which would increase the total retirement funding obligation of employees up to a range of 14% to 17% of salary. The FERS system is fully funded now, so this is not a proposal to address a funding problem, it is not an attempt to shore up the Trust Fund from which benefits are paid. Rather, it is a straight cut to federal employee compensation meant solely to reduce federal employee compensation. Since this cut would come from the “defined benefit” element of FERS, it is not voluntary. Each federal employee would experience a salary cut of 7% a year. Coupled with the proposed change in the annuity formula basis from “high 3” to “high 5”, this would mean federal employees would pay an additional 7% of their salaries and in return, receive retirement benefits that would be 3% to 5% lower than what the current generation will receive. This punitive cut is entirely without justification and will be vigorously opposed by AFGE. Reducing Cost of Living Adjustments for FERS and CSRS Retirees The President’s commission also wants to substitute a new, inferior measure of inflation called the “chained” Consumer Price Index (CPI) in order to lower COLAs for federal retirees. This proposal would hit FERS retirees twice, because the measure would reduce COLAs for both federal annuitants and Social Security recipients. The so-called “chained CPI” is a highly controversial method for lowering the official measure of inflation. The current CPI measures increases in the prices of the goods and services the typical household buys. The “chained” CPI says if the price of something goes up, instead of counting that increase, substitute the price of another good or service whose price either stayed the same or went up by less. For example, if the price of beef went up, the “chained” CPI would not include that price increase in its calculation. Instead, it would assume that people would be just as well off if they substituted a lower-priced animal protein in their market basket. The chained CPI 17 literally takes the inflation out of the formula for measuring inflation. This method “cooks the books” to pretend inflation is lower than it is, thereby depriving annuitants and other retirees of the inflation protection that cost of living adjustments are meant to provide. Reducing the Government’s Share of FEHBP Premiums for Retirees The President’s Commission suggests reducing government support for federal retirees who participate in FEHBP, but doesn’t specify the size of the reduction. This proposal is also presented as an effort to follow the private sector in the race to the bottom. While it is true that many private firms have broken promises to employees to provide health insurance support in retirement, that is behavior that a Presidential commission should deplore, not seek to emulate. There are good ways to save money by reforming the FEHBP without taking away benefits from federal retirees, all of whom were promised that the government’s share of their health insurance costs in retirement would continue on par with those still in the federal workforce. FEHBP is an inefficient and poorly structured program with high overhead costs, and high profits guaranteed to the health insurance plans that participate. OPM has also refused to take advantage of rebates for prescription drug costs available to employers that provide such coverage to their retirees. If the Commission wants to save money on FEHBP, there are far better ways than to renege on the promises that the government has made to its workforce and retirees to continue full FEHBP coverage into retirement. Raising the Retirement Age for Social Security The President’s Commission suggests gradually raising the age for eligibility for full Social Security benefits in retirement from 67 to 69. The age for early eligibility with reduced benefits would rise from 62 to 64. This cut in Social Security benefits would disproportionately affect minorities and those in jobs that are physically demanding. Today, 25% of all workers age 60 and 61 report a health condition that limits their ability to work, yet this proposal would require then to work almost a decade beyond this age for full benefit eligibility. Although the Commission says it would support a “hardship” exemption for some workers in particularly physically-demanding occupations, it would not cover all workers with health problems that limit their ability to continue working into old age. Further, the increases in life expectancy that the Commission uses to justify this proposal are hugely correlated with income. According to data from the Social Security Administration, the life expectancy of men in the bottom half of the income distribution has risen by just 1.1 years between 1982 and 2006, while those in the top half experienced a 6 year increased in longevity. During this period, the age for eligibility for 18 all workers has risen by 8 months, but the President’s Commission wants to make this problem worse. A hardship exemption will not apply to half of all workers, and half of all workers will have already had their increase in life expectancy accounted for when the full benefit eligibility age rises to 67 by 2027. Federal Retirement Benefits are Comparable to Private Sector Benefits The most comprehensive study comparing retirement benefits under the FERS and retirement benefits provided to employees in medium and large firms in the U.S. was prepared by the Social Security Administration’s Office of Policy (http://www.ssa.gov/policy/docs/ssb/v65n1/v65n1p17.html). This study did not compare federal retirement benefits to those at firms that provided no retirement benefits, and it did not compare federal retirement benefits to firms that provide little or no employer match to a 401 (k) plan, even though all of these practices are common in the private sector. Instead, it compared “apples to apples,” i.e. it compared FERS, which includes a defined benefit, a 401 (k) –type of defined contribution with a partial employer match for employee savings, and coverage under Social Security. The study used data from the Bureau of Labor Statistics and the OPM, and provided calculations for low, medium, high, and “maximum” earners. It found unequivocally that the FERS basic pension – the defined benefit that is the target of those who support cuts – replaces about 36 percent of pre-retirement earnings, while private sector basic pension benefits replace 47.3 percent of a retiree’s final salary. Even when the basic pension is added to the Thrift Savings Plan (TSP) and Social Security, FERS comes up short compared to private sector plans, replacing a smaller percentage of pre-retirement salary as compared to private plans with the same components. When Social Security benefits are included in the measure of the “replacement rates” for both FERS and private sector plans, lower earners do better than higher earners because of the progressive nature of Social Security benefits. Nonetheless, the data are clear and consistent: FERS is less generous than the retirement plans in the BLS dataset for medium and large private firms that offer employer-sponsored plans. Conclusion These facts must remain at the forefront whenever the proposals to cut federal retirement benefits are put forth. Cutting federal retirement benefits does absolutely nothing to affect the budget deficit, as the federal retirement systems are fully funded. The federal government’s policy with regard to compensating its workforce has always been comparability with large and medium-sized private firms. This should remain the government’s policy, and all attempts to bring federal pay and benefits down to the lowest level should be vigorously opposed. 19 Effective Representation of Federal Employees Introduction As part of a systematic attack on working and middle class Americans, some have advocated cutting the salaries and benefits of those who serve the public as employees of the federal government. These are the individuals who keep the government functioning through times of political crisis or deadlock. They are the people who get the Social Security checks out on time, ensure a safe food supply, go after those who pollute our water and air, and care for our wounded veterans, but they have been unfairly painted as the cause of our country’s economic troubles. Those who make these attacks do so to distract the American people from our unfair and regressive tax system and corporate welfare state that led to the Great Recession. Their ultimate target is the very government programs that serve the needs of the people and protect the American Dream. Standing in their way are the democratically elected unions representing these Federal workers. They know that they must silence our voice in order to achieve their goals. This is the motivation behind the latest attempt to prevent effective union representation by attacking the use of official time by employees. Use of reasonable amounts of official time has been supported by government officials of both political parties for some 50 years. AFGE will strongly oppose any proposal that would weaken federal employee unions by curtailing, restricting, or eliminating the reasonable and judicious use of official time. Specifically, AFGE opposes H.R. 122, introduced by Rep. Phil Gingrey (R-GA), which would eliminate official time altogether. Background By law, federal employee unions are required to provide representation for all employees in their collective bargaining units, even those who don't pay dues. Federal employee unions are also forbidden from collecting any fair-share payments or fees from non-dues paying members for the services to which they are legally entitled. In exchange for being saddled with the responsibility of providing services to those who pay as well as those who refuse to pay, the Civil Service Reform Act of 1978 allows federal employee unions to bargain with agencies over official time. Under the law, federal employees who serve as union representatives are permitted to use official time to engage in negotiations and perform representational activities while on duty status. Legally permitted representational activities include: Creating fair promotion procedures that require that selections be based on merit, so as to allow employees to advance their careers; Establishing flexible work hours that enhance agencies’ service to the public while allowing employees some control over their schedules; 20 Setting procedures that protect employees from on-the-job hazards, such as those arising from working with dangerous chemicals and munitions; Enforcing protections from unlawful discrimination in employment; Developing systems to allow workers to perform their duties from alternative sites, thus increasing the effectiveness and efficiency of government; Participating in improvement of work processes; Providing workers with a voice in determining their working conditions. By law, use of official time is limited to time spent in negotiations for a collective bargaining agreement, and other representational activities authorized by statute. The law provides that the amount of time that may be used is limited to that which the labor organization and employing agency agree is reasonable, necessary, and in the public interest. As pointed out in a Congressional Research Service Report, “(a)ny activities performed by an employee relating to the internal business of the labor organization must be performed while in a non-duty status. Activities which may not be conducted on official time include: solicitation of membership internal union meetings elections of officers any partisan political activities Because the pay, benefits, and job security for federal employees are established through the legislative process, the Congress recognized that federal employee unions would need to communicate with lawmakers about these key terms and conditions of employment. Consequently, the law permits the use of official time for union representatives to deal directly with Members of Congress. The right to use official time to communicate with Members of Congress is well-established but strictly limited. First of all, the use of official time for this purpose and then the extent to which it can be used must be negotiated with management. In addition, official time may be used only to represent federal employees on those issues directly affecting bargaining unit employees, like jobs, pay, and benefits. It cannot be used on any other issues--whether school prayer, term limits, or flag desecration. To ensure its continued reasonable and judicious use, all federal agencies track basic information on official time, and submit it annually to the Office of Personnel Management (OPM), which then compiles a government-wide report on the amount of official time used by agencies. From 2004 through 2008, the use of official time government-wide decreased from an average of 3.7 to 2.6 hours per bargaining unit employee. Between 2007 and 2008, official time decreased by 3.3%. 21 Official Time Makes the Government More Efficient and More Effective Through official time, union representatives are able to work together with federal managers to use their time, talent, and resources to make our government even better. Gains in quality, productivity, and efficiency--year after year, in department after department--simply would not have been possible without the reasonable and sound use of official time. Private industry has known for years that a healthy and effective relationship between labor and management improves customer service and is often the key to survival in a competitive market. The same is true in the federal government. No effort to improve governmental performance--whether it's called reinvention, restructuring, or reorganizing--will thrive in the long haul if labor and management maintain an armslength, adversarial relationship. In an era of downsizing and tight budgets, it is essential for management and labor to develop a stable and productive working relationship. Union representatives and managers have used official time to transform the labor-management relationship from an adversarial stand-off into a robust alliance. And that just makes sense. If workers and managers are really communicating, workplace problems that would otherwise escalate into costly litigation can be dealt with promptly and more informally. Official time under labor-management partnerships or forums is used to bring closure to workplace disputes between the agency and an employee or group of employees. Those disputes would otherwise be funneled to more expensive, more formal procedures – the agency’s own administrative grievance procedures, EEOC complaints, appeals to the Merit Systems Protection Board, and federal court litigation. Healthier Labor-Management Relations in the Federal Government Also Produce Cost Savings in Reduced Administrative Expenses Union representatives use official time for joint labor-management activities that address operational mission-enabling issues in the agencies. Official time allows activities such as designing and delivering joint training of employees on work-related subjects; and introduction of new programs and work methods that are initiated by the agency or by the union. As examples, such changes may be technical training of health care providers in the Department of Veterans Affairs; or, introduction of data-driven food inspection in the Food Safety and Inspection Service. Union officials use official time for routine and unusual problem-solving of emergent and chronic workplace issues. For example, union representatives use official time when they participate in agency health and safety programs operated under the Occupational Safety and Health Administration (OSHA). Such programs emphasize the importance of effective safety and health management systems in the prevention and control of workplace injuries and illnesses. 22 Official time is also used by union representatives participating in programs such as LEAN and Six Sigma, labor-management collaborative efforts which focus on improving quality of products as well as procedural efficiencies. Currently, union representatives are participating on official time to work with the Department of Defense to develop a department wide performance management and recognition system and accelerate and improve hiring practices within the department. Conclusion AFGE strongly opposes any proposals to erode the rights of union representatives to use official time to represent both dues and non-dues paying members of collective bargaining units. Official time under the Federal Service Labor-Management Relations Statute is a longstanding, necessary tool that gives agencies and their employees the means to expeditiously and effectively utilize employee input into mission-related challenges of the agency, as well as to bring closure to conflicts that arise in all workplaces. It has enjoyed bipartisan support for decades. Overseen by the agencies themselves on a day-to-day basis and by the Office of Personnel Management in an aggregated way, official time is used as provided by law, and only for the purposes specified in statute. 23 Back to the Future: Arbitrary Cuts in Civil Servants Overview It would be hard to find even a “moment of truth” in the final report served up by the Deficit Commission’s co-chairs on issues related to federal civil servants, particularly with respect to its insistence that the federal civil service be arbitrarily reduced by 200,000 federal employees, or 10%, by 2015.3 This recommendation, which was one of many in a package that failed to receive sufficient bipartisan support, may leave federal employees with a feeling of déjà vu all over again, given that the Clinton Administration, pursuant to its now infamous Federal Workforce Restructuring Act, reduced the federal civil service by 272,000 employees, or slightly more than 10%.4 Unable to fulfill their legal mandates with significantly fewer federal employees, agencies during the 1990’s often simply privatized the work that had formerly been performed by reliable and experienced civil servants, usually at significantly higher costs. Agencies lost critical in-house capacities, eventually inspiring concern that arbitrary in-house downsizing had left the federal government with a human capital deficit, or even a “human capital crisis”, at the dawn of the 21st century. Outside audits reported that, on a widespread basis, contractors had been given functions that by law and regulation should always be performed by federal employees because of their sensitivity and importance. Finally, in the latter part of the Bush Administration, Congress, on a bipartisan basis, passed several important reforms to address the problems caused by downsizing-driven privatization, including laws that 3 “1.10.3 Impose a three-year pay freeze on federal workers and Defense Department civilians. Out of duty and patriotism, hardworking federal employees provide a great service to this country. But in a time of budget shortfalls, all levels of government must trim back. In the recent recession, millions of private sector and state and municipal employees had their wages frozen or cut back, and millions more lost their jobs altogether. In contrast, federal workers’ wages increase annually due to automatic formulas in law, providing them with cost-of-living-adjustments totaling more than five percent in the last two years. This proposal would institute a three-year government-wide freeze on federal pay at every government agency, including the Department of Defense civilian workforce. This proposal will save $20.4 billion in 2015.” The Moment of Truth: Report of the National Commission on Fiscal Responsibility and Reform, page 27 (December 2010). 4 The Federal Workforce Restructuring Act of 1994 (P.L. 103-226). The Clinton Administration, in its “History of the National Partnership for Reinventing Government: Accomplishments, 1993-2000”, ultimately claimed that the federal workforce was reduced by 426,200 positions between January 1993 and September 2000. 24 1. prevent work from being given to contractors without first determining whether such conversions would be in the best interest of taxpayers; 2. assign the Office of Management and Budget (OMB) to propose a stronger definition of “inherently governmental” to ensure that important and sensitive functions are actually performed by federal employees; 3. require agencies to compile inventories of their service contracts so that they could identify which ones cost too much or should never have been undertaken; and 4. direct agencies to develop policies that work performed under contract to be insourced in certain circumstances. Enactment of the co-chairs’ rejected recommendation would kill those reforms and unleash another wave of wasteful and even dangerous, downsizing-driven privatization—almost as if the long-delayed clean-up of the a giant toxic waste dump were to be suspended in order to give polluters additional time to deposit even more poison. The co-chairs’ recommendation for arbitrary cuts in civil servants would not just lead to more contracting out; it would also scuttle the historic effort to rebalance the federal government’s workload and thus reduce overreliance on contractors. Indeed, the co-chairs’ report all but ignores the federal government’s army of service contractors, which is far larger and far more costly than the federal civil service. 5 If the co-chairs had told the truth even for a moment, they would have acknowledged that slashing the federal civil service by 200,000 workers—without also explicitly identifying which programs are to be cut, weakened, or somehow transformed —is nothing more than burdening the taxpayers with another 200,000 contractors, who are always less accountable and usually less economical. Avoiding the Hard Choices Although the co-chairs style themselves as courageous visionaries who aren’t afraid to make tough decisions, this particular rejected recommendation is unusually thoughtless and lazy. Where did the number 200,000 come from? Was it based on workforce 5 "The government knows virtually nothing about its shadow"—the ever-expanding number of politically well-connected contractors who are taking more and more work from public employees”—wrote Paul Light, then of the Brookings Institution, in The True Size of Government (1999). "Neither the Office of Personnel Management nor the Office of Management and Budget has ever counted the full-time equivalent non-public workforce, let alone analyzed its appropriateness." Light's research indicated that the contractor workforce was approximately 4 million employees. In contrast, even today, there are fewer than 2 million executive branch non-postal civil servants. 25 planning? Did it take into account the programs and services that are to be eliminated or reduced? Was it inspired by the discovery of new processes that somehow allow for federal services to be provided with significantly fewer civil servants? Or was the number chosen because it was nice and round—one which might command the attention of a sound-bite-addicted media and lawmakers who have either forgotten about or are ignorant of the ruinous downsizing of the 1990’s— which was itself based on a crude, back-of-the-envelope 10% cut in the federal civil service? On what basis do the co-chairs believe that the federal civil service can be reduced by 10% without risking, to use their words, “a decline in essential government services”? Cabinet level agencies have experienced a modest growth of 8% in civil servants since September 2008. 80% of that increase can be attributed to just four departments—the Departments of Defense (DoD), Homeland Security (DHS), Justice, and Veterans Affairs. However, the co-chairs don’t enlighten us as to how their rejected recommendation won’t jeopardize our national security, our homeland security, our criminal justice system, and our care for wounded warriors. If the co-chairs believe that the federal government is overstaffed, then it is incumbent upon them to identify functions that agencies should no longer perform as well as explain how other functions can be satisfactorily performed with significantly fewer federal employees. Rather than accept that challenge, the co-chairs essentially throw up their hands and demand that federal civil servants continue to perform everything they are already doing as well as anything that might be asked of them in the future but to accomplish all of that without 10% of their colleagues. As history shows, in order to continue to fulfill their statutory mandates, agencies will simply contract out to get the work done.6 6 As far back as 1991, GAO reported that personnel ceilings were forcing agencies to contract out work at higher costs. For example, "Few of the DoE contracts for support services we reviewed were awarded on the basis of comparisons between federal and contract costs. DoE officials said they did not compare costs since they could not get additional staff to perform the work in-house because of personnel ceilings...Some DoE support service contracts cost substantially more than would using additional federal employees for the same work. Eleven of the 12 support service activities for which we conducted cost comparisons were, on average, 25% more costly." General Accounting Office, ENERGY MANAGEMENT: Using DoE Employees Can Reduce Costs for Some Support Services (August 1991). A follow-up GAO report showed how difficult it continues to be to bring work back in-house at the agency because of personnel ceilings: "(R)egardless of whether DoE's cost comparisons show that support services can be performed less expensively in-house, personnel ceilings established by OMB for federal agencies limit the number of authorized DoE positions. Therefore, DoE officials believe there is little incentive to perform cost comparisons or, ultimately, to convert contract work to in-house performance, because the work would have to be accommodated within DoE's existing personnel 26 The size of agencies’ civil service workforces should be based on their statutory mandates—and not on discredited and even outlawed arbitrary personnel constraints like “man years”, “end strengths”, “full-time equivalent positions”, or “maximum numbers of employees”. The Congress has repeatedly, and on a bipartisan basis, rejected the use of in-house personnel ceilings—particularly in DoD, which experienced most of the downsizing during the Clinton Administration.7 Instead, the Congress has instructed agencies to manage the civil service workforce by workloads and budgets—if a program must be carried out and if there is sufficient funding in the budget to pay for that program, then agencies should not be prevented from recruiting or retaining the federal employees necessary to carry out that program. It makes no sense to impose civil service headcounts and in-house personnel ceilings on agencies that require the use contractors rather than federal employees, when there is both work and funding, particularly when that work is so critical or important that it should never be privatized or when federal employees are more efficient than contractors. Replacing civil servants with contractors because of headcounts and personnel ceilings does not make the federal government smaller or reduce its costs; indeed, contracting out in such circumstances makes the federal government less accountable and more costly. Failing to Learn From History #1: Arbitrarily Downsizing Federal Employees → More Contractors → Higher Costs The Federal Workforce Restructuring Act, which required the federal civil service to be cut by 272,000 federal employees, or by slightly more than 10%, was enacted on March 30, 1994. Supporters of the law insisted that the required in-house downsizing would not lead to increased outsourcing. In fact, Section 5(g) required the President to “take ceiling." General Accounting Office, Energy Management: Improving Cost-Effectiveness in DoE's Support Services Will Be Difficult (March 1993). 7 By law, for example, DoD’s civilian personnel must be managed each fiscal year solely on the basis of and consistent with (1) the workload required to carry out the functions and activities of the department and (2) the funds made available to the department for such fiscal year. The management of such personnel in any fiscal year shall not be subject to any constraint or limitation in terms of man years, end strength, full-time equivalent positions, or maximum number of employees. (10 U.S.C. 129) By law, the department must use the least costly form of personnel consistent with military requirements and consider the advantages of shifting work between its civilian, military, and contractor personnel. (10 U.S.C. 129a) By, law, DoD must give “special consideration” to using civilian employees to perform functions that have been outsourced without competition, are poorly performed, or include closely associated with inherently governmental functions. (10 U.S.C. 2463) 27 appropriate action to ensure that there is no increase in the procurement of service contracts by reason of enactment of” the Federal Workforce Restructuring Act. However, no such action, appropriate or otherwise, was ever taken. Even before the calendar year was out, the Clinton Administration was forced to acknowledge that personnel ceilings forced agency after agency to replace downsized federal employees with contractors. 8 According to OMB, several agencies--including the Departments of Agriculture, Health & Human Services, Housing & Urban Development, State, Education, Treasury, and the Environmental Protection Agency—could have saved millions of dollars by performing functions directly but had to contract out because of personnel ceilings. Noting the pernicious practice at a particular agency, the National Association of Public Administration reported that "(b)ecause of staff shortages, (the Department of Housing and Urban Development) HUD has relied on contractor assistance in instances where considerations of efficiency and economy would favor performance in-house."9 In March 1995, GAO reported "that the personnel ceilings set by OMB frequently have the effect of encouraging agencies to contract out regardless of the results of cost, policy, or high-risk studies."10 The DoD Inspector General noted, in a 1995 report, "the goal of downsizing the federal workforce is widely perceived as placing DoD in a position of having to contract for services regardless of what is more desirable and cost effective."11 That downsized federal employees were simply being replaced by contractors eventually became so obvious that the mainstream media noticed. As reported in a front-page article in The New York Times: “Even as President Clinton and Congressional Republicans race to take 8 Office of Management and Budget, Summary Report of Agencies’ Service Contracting Practices (January 1994). 9 National Association of Public Administration, Renewing HUD: A Long-Term Agenda for Effective Performance (1994). 10 GAO, Government Contractors: An Overview of the Federal Contracting-Out Program (March 29, 1995). 11 GAO, Defense Outsourcing: Challenges Facing DOD As It Attempts to Save Billions in Infrastructure Costs (GAO/T-NSIAD-97-110). 28 credit for shrinking the Federal payroll, the Government’s costs for outside, or contract, employees keeps rising…The Government spent $103 billion in salaries and expenses for its employees in 1995. That is a very slight decline, about $1 billion, from its payroll costs in 1993 and 1994. But the dollar value of Federal service contracts with private companies has risen more than 3.5 percent a year since 1993, to $114 billion last year…President Clinton refers frequently to the elimination of more than 200,000 Federal positions—about 10 percent of the Federal work force—during his tenure, an indication that “the era of big government is over”…Most of that decrease has been in civilian jobs at the Pentagon. But while those jobs have vanished on paper, many of the responsibilities are being fulfilled by outside contractors…”12 Most downsizing during the 1990’s was imposed on DoD, and most of that downsizing was in turn imposed on its acquisition workforce, the federal employees responsible for ensuring that contractors don’t rip off taxpayers. The DoD Inspector General reported in 2000 that taxpayers were paying “increased program costs resulting from contracting for technical support versus using in-house technical support. Seven of the 14 DoD acquisition organizations stated that reductions in in-house matrix support personnel required the organizations to contract for additional services, such as engineering and logistical analysis, that the Government once would have provided.” Failing to Learn From History #2: Arbitrarily Downsizing Federal Employees → More Contractors → Loss of Control of Public Functions to Private Interests Even after the expiration of the Federal Workforce Restructuring Act, the Bush Administration continued to replace federal employees without regard to cost or risk, particularly in DoD and DHS. In April 2002, the Commercial Activities Panel, a special commission created by Congress and chaired by the Comptroller General— although deliberately stacked with a majority of Bush Administration officials and contractor representatives—declared, unanimously, that “federal sourcing and related policies should avoid arbitrary full-time equivalent (FTE) or other arbitrary numerical goals. This principle reflects an overall concern about arbitrary numbers driving sourcing policy or specific sourcing decisions. The success of government programs should be measured by the results achieved in terms of providing value to the taxpayer, not the size of the in-house or contractor workforce. Any FTE or other numerical goals should be based on considered research and analysis. The use of arbitrary percentage or numerical targets can be counterproductive.”13 12 “As Payroll Shrinks, Government’s Costs For Contracts Rise”, The New York Times (March 18, 1996). 13 Commercial Activities Panel, Improving the Sourcing Decisions of the Government (April 2002). 29 Nevertheless, DoD’s service contractor workforce grew from 732,000 in FY00 to 1,300,000 in FY06.14 Taxpayer dollars spent on DoD’s service contractors more than doubled, increasing by $100 billion, during the Bush Administration. According to budget documents, the number of active duty military personnel and civilian employees increased from FY2000 to FY2010 by just 2% and 7%, respectively. In early 2010, DHS discovered that its workforce consisted of 210,000 contractors and just 188,000 federal employees.15 In 2007, GAO detailed how arbitrary downsizing has resulted in both agencies contracting out the most important and sensitive functions. From overseeing contractors to preparing budgets, work that should have been performed for DHS by federal employees—because it is inherently governmental, closely associated with inherently governmental functions, or critical—has been given to contractors, thus undermining the public interest. According to GAO, DHS uses contractors to prepare budgets, develop policies, support acquisition, develop and interpret regulations, reorganize and plan, and administer OMB Circular A-76 privatization studies. In outsourcing such work, agency officials don’t even bother to subject those contractors to extra surveillance, let alone look for opportunities to insource.16 In 2009, GAO reported after a survey of DoD contracts that all 7 of the proposed acquisitions for professional, administrative, and management services and more than 75 percent of the 64 related task orders it reviewed required the contractor to provide services that closely supported inherently governmental functions. Worse, requirements that such work be subjected to greater scrutiny both before and after any outsourcing are routinely ignored.17 Although less notorious than DHS and DoD, HUD is another department in which public functions are increasingly controlled by private interests because of the downsizingdriven privatization initiated by the Federal Workforce Restructuring Act. During the Clinton Administration, HUD began contracting out contract administration for approximately 1.2 million units in Multifamily Housing developments. The first IG report critical of HUD’s use of contractors instead of federal employees appeared in 1999. In that report, the IG reported that such outsourcing could adversely 14 FY01 and FY06 Department of Defense Reports: Performance of Commercial Activities. Available: http://competitivesourcing.navy.mil/referenceDocuments/reportsDoD.aspx 15 Department of Homeland Security, Balanced Workforce and Contractor Reliance, p. 3. 16 GAO, Department of Homeland Security: Risk Assessment and Enhanced Oversight Needed to Manage Reliance on Contractors, GAO-08-142T. 17 GAO, Defense Acquisitions: Further Actions Needed to Address Weaknesses in DoD’s Management of Professional and Management Support Contracts, GAO-10-39. 30 affect the integrity of the department’s program because contracted services are typically used to enhance in-house capability, not replace an entire business function; the cost of the contract would be absorbed by the program, reducing the amount of funds that could be provided to intended beneficiaries; and HUD’s ability to monitor contractor performance was questionable.18 In 2010, because of concerns about increased contractor costs and inappropriate contractor performance of inherently governmental functions, the IG recommended three options, two of which called for insourcing all or significant parts of the work and another which called for allowing HUD employees to formally bid on the work.19 Five facts that should guide efforts to right-size the federal government: 1. The Federal Government Uses Both Civil Servants and Contractors to Carry Out Programs: The federal executive branch non-postal workforce consists of fewer than 2 million civil servants, according to the Office of Personnel Management. The size of the contractor workforce is unknown, but it has been estimated to be at least two times—perhaps even three times—the size of the federal civil service. Therefore, any serious effort to right-size the federal government must look carefully at both civil servants and contractors. 2. If Agencies Are Required to Carry Out Programs But Can’t Use Civil Servants Because of Personnel Ceilings and Headcounts, They Will Inevitably Use Contractors Instead: Using civil servants and contractors, agencies carry out the programs that are established by Congress. If Congress wants agencies to use significantly fewer civil servants, then Congress must either eliminate or weaken those programs. As proven by the Federal Workforce Restructuring Act, if agencies can’t use civil servants to carry out programs, they will simply contract out those programs, even if such backfilling is prohibited. 3. Using Contractors in Such Circumstances Leads to Increased Costs and Loss of Public Control: When agencies contract out because of in-house headcounts and personnel ceilings, it usually leads to higher costs and it can result in loss of public control over important and sensitive functions. In such circumstances, it’s not just that there is no public-private competition but rather that there is no consideration of the cost of in-house performance, period, before work is contracted out. And as the experience of DoD, DHS, HUD, and other agencies show, headcounts and personnel ceilings don’t just result in work being contracted out regardless of cost but, also, as GAO pointed out, regardless of risk and policy. 18 IG Audit Report #99-PH-163-0002 at pp. 16-17. 19 IG Audit Report #2010-LA-0001 at pp. 16-19. 31 4. Civil Servants Are Best Managed by Workloads and Budgets: If there is work to be done and money to pay for the work to be done, then an agency should be allowed to use federal civil servants to get that work done, an approach which is already required in law in several instances. Whether an agency should use civil servants depends on cost, policy, and risk. The imposition of in-house headcounts and personnel ceilings often prevents agencies from using civil servants when there is work and money to pay for that work to be done, even when in-house performance is more efficient or required by law or regulation. 5. Because Civil Servants Are Transparent and Quantifiable, Unlike Contractors, They Are Uniquely Vulnerable to Headcounts and Personnel Ceilings: Through the budget process, agencies know what work civil servants are doing, how many civil servants are doing that work, how much those civil servants cost, and how well they are performing. Contractors, on the other hand, are shrouded in secrecy. Although significantly more numerous and more expensive than civil servants, little is known about contractors—not even how many of their employees are actually paid for by the taxpayers. Contractors have always fought efforts to require agencies to inventory their service contracts because they know that increased visibility would inevitably lead to increased accountability. Nevertheless, all agencies are now required to review their service contracts in order to identify, among other things, service contracts that are too expensive or poorly performed. However, only DoD has made significant progress, and OMB was several months late in issuing guidance for the non-DoD agencies. The federal civil service is transparent and quantifiable, and thus accountable to taxpayers, while contractors are not. It is because federal civil servants are accountable to taxpayers—but contractors are not—that federal civil servants are uniquely vulnerable to the use of personnel ceilings and headcounts. How to right-size (assuming the actual objective is to achieve savings and generate efficiencies, as opposed to enrich contractors and smack civil servants): Congress has historically demonstrated that it can reduce the number of federal civil servants, but not that it can reduce the size of the federal government—because lawmakers’ downsizing efforts don’t include contractors. Agencies have repeatedly shown that they can cut the size of their civil service workforces; however, they have been completely unsuccessful in even restraining the growth of their contractors. How can we avoid undertaking more downsizing that ultimately increases costs to taxpayers? 32 1. Make Tough Choices: Instead of simply telling agencies to do more with less, specifically 200,000 civil servants, Congress should either identify programs for abolition and reduction in scope or demonstrate how particular programs can be transformed so that significantly fewer civil servants and / or contractors are required. Specific right-sizing can work, but more “fill-in-the-blank” right-sizing won’t work. 2. Avoid Headcounts or Personnel Ceilings--on Contractors or Civil Servants: The Deficit Commission co-chairs, in their November 2010 draft proposal, called for the elimination of “250,000 non-defense service and staff augmentee contactors”20 and doubling “Secretary Gates’ cuts to defense contracting” 21. These contractor cuts are technically incorporated by reference into the cochairs’ failed final package of recommendations. That the co-chairs explicitly included federal employee cuts in their final package, but left out their own contractor cuts, is yet another reason to question their judgment and fairness. Nevertheless, AFGE opposes headcounts on contractors as well as on federal employees, for many of the same reasons. 3. Use Inventories to Identify Contracts That Are Superfluous, Cost Too Much or Are Poorly Performed: Instead of headcounts, agencies should use their service contractor inventories to identify contracts that ill serve taxpayers because they are duplicative, over-budget, or just aren’t working. These inventories can make contractors as accountable to agencies as federal employees already are. Unlike headcounts, which could adversely impact good contractors and bad contractors alike, inventories allow agencies to preserve contracts that are in the best interests of taxpayers and either eliminate or correct those contracts that aren’t. 20 21 The Moment of Truth: Report of the National Commission on Fiscal Responsibility and Reform, p. 2. Ibid., p. 17. 33 Sourcing: Complying With the Law Summary: 1. ENFORCE PROHIBITIONS AGAINST DIRECT CONVERSIONS: Consistent with the law, no work last performed by federal employees should be contracted out without first conducting a full and fair public-private competition. 2. INSIST THAT INHERENTLY GOVERNMENTAL / CLOSELY ASSOCIATED WITH INHERENTLY GOVERNMENTAL / CRITICAL WORK BE PERFORMED BY FEDERAL EMPLOYEES: Ensure that functions that are inherently governmental, closely related to inherently governmental functions, or critical are performed by federal employees— and insource such work if it has been wrongly contracted out. 3. THROUGH INSOURCING, REQUIRE AGENCIES TO GIVE FEDERAL EMPLOYEES OPPORTUNITIES TO PERFORM NEW AND OUTSOURCED WORK: Consistent with the law, agencies should insource work that is closely associated with inherently governmental functions as well as functions that were contracted out without competition or are being poorly performed. 4. COMPILE CONTRACTOR INVENTORIES: Consistent with the law, agencies should compile inventories of their service contracts so that we know, among other things, how much contractors cost, how many employees are performing each contract, and how well they are performing. 5. EXTEND THE GOVERNMENT-WIDE SUSPENSION AGAINST STARTING UP ANY NEW OMB CIRCULAR A-76 STUDIES: Extend the suspension on the use of the OMB Circular A-76 privatization process until much-needed reforms have been implemented and functions performed by contractors, including commercial functions, are being targeted for insourcing. 6. DON’T POLITICIZE THE PROCUREMENT PROCESS: Oppose schemes that would direct contracting officers to steer contracts to certain contractors based on their commitments to “labor-friendliness”; instead, favor the establishment of standards for pay, benefits, and collective bargaining status for contractor employees that all contractors would be required to meet. 34 1. ENFORCE PROHIBITIONS AGAINST DIRECT CONVERSIONS Despite the extensive use of the Office of Management and Budget (OMB) Circular A76 privatization process (and the resulting proof of the superiority of in-house workforces), much work is still contracted out without any public-private competition, i.e., without any proof that giving work to contractors is better for taxpayers or better serves those Americans who depend on the federal government for important work. The Congress, on a bipartisan basis, has, repeatedly, prohibited agencies from perpetrating, regardless of the number of federal employees affected, “direct conversions”—the term used to describe instances in which agencies give work performed by federal employees to contractors without first conducting full cost comparisons. However, OMB has issued no guidance to agencies to implement the new prohibitions and agencies continue to perpetrate direct conversions. 2. INSIST THAT INHERENTLY GOVERNMENTAL / CLOSELY ASSOCIATED WITH INHERENTLY GOVERNMENTAL / CRITICAL WORK SHOULD BE PERFORMED BY FEDERAL EMPLOYEES The FY09 Defense Authorization Act required OMB to develop a single governmentwide definition of “inherently governmental”. It is crucial that OMB’s proposed redefinition correct longstanding problems that have resulted in the outsourcing of functions that should have been reserved for federal employee performance, including evaluation of contractors’ proposals and performance, preparation of budgets, development of policies, and interpretation of regulations.22 In contracting out such 22 These are the principles for which AFGE has advocated on the redefinition of inherently governmental. a. The new definition should reject targeting “commercial” functions for outsourcing. The redefinition should be explicit in rejecting the pernicious notion that infected sourcing policy, particularly during the previous Administration, that commercial functions performed by federal employees should be targeted for outsourcing. Given the superior accountability and flexibility of in-house performance, the resistance of contractors to effective oversight, and the costs and controversies associated with the contracting out process, the new definition should make it clear that internal reengineering is the approach most likely to generate efficiencies with respect to non-inherently governmental functions performed by federal employees. b. The new definition should reduce confusion and uncertainty by expanding the very narrow definition of inherently governmental currently in use. The new definition should correct the fundamental problem in the current definition that has caused so much confusion and uncertainty in determining which functions should be reserved for federal employee performance: because the current definition of inherently governmental is so impractically narrow, managers have been forced to rely on other, weaker designations— closely associated with inherently governmental, critical, core, etc.—to protect from outsourcing pressures functions that may not meet the statutory definition but should still be performed in-house. c. The new definition should be clear enough to withstand the politics and corruption that have led to so much contracting out of functions that should be performed by federal employees; it should reflect the real-life lessons we have all learned over the last sixteen years. Again and again, because of contractors’ immense political influence, agencies 35 have served contractors, rather than the reverse. Instead of regarding contractors as an industry to be regulated, too many acquisition executives see contractors as their partners or even as sources of post-civil service employment. While the existing narrow definition of inherently governmental has resulted in unhelpful confusion and uncertainty, the outsourcing of functions that should only be performed by federal employees is the inevitable consequence of politics, influence-peddling, and outright corruption. The new definition of inherently governmental should be sufficiently clear and forthright to withstand those relentless pressures, dispensing with the usual arcane tests that invite more subjectivity and gamesmanship in favor of rebuttable presumptions that closely associated with inherently governmental and critical functions should be performed by federal employees. Given that it has been deliberate policy to drive as many functions into the private sector as possible, regardless of their nature, and that the loss of control over governmental functions is not a potential problem but a real and serious problem, there is no reason not to have such presumptions. d. The new definition should take into account the realities of the federal workplace in which managers lack the time and expertise to adequately review recommendations and exercises of discretion by contractors. The new definition should reserve for federal employee performance exercises of discretionary authority or the formulation of recommendations that contribute significantly to agencies’ final decisions as well as exercises of discretionary authority or formulations of recommendations that are not specifically reviewed and approved by supervisors that contribute to agencies’ final decisions. Federal employee managers, in agency after agency, approve recommendations prepared by contractors, often with insufficient time or expertise to adequately scrutinize those recommendations. In other words, contractors’ recommendations are, effectively, final decisions. Across the federal government, functions performed by federal employees have been considered to be commercial because they result in recommendations, rather than final decisions--even though supervisors’ decisions are little more than rubber-stamps of employees’ recommendations because only a fraction of those employee recommendations are ever reviewed, and far fewer still rejected or overturned. The new definition should look at the way discretion is actually exercised and recommendations are offered before final decisions are rendered, rather than emphasizing form over substance—i.e., functions are automatically commercial if managers sign off on recommendations or approve exercises of discretion. It is understood that federal employees have longer tenures than their private sector counterparts, often making them more productive because they have more experience. And it is often this experience that allows federal employees to more wisely exercise discretion because they build up extensive knowledge of law, regulation, policy, and practice. Contractor employees, because their turnover is higher and their ultimate loyalty is to the contractor, rather than to the agency, don’t have the same opportunity and motivation to wisely exercise discretion. The new definition’s treatment of discretion should reflect that reality. e. The new definition should include strong mechanisms for transparency (i.e., determining which contracts include functions that are inappropriate for contractor performance) and 36 enforcement (i.e., insourcing functions which should be performed by federal employees), which are arguably even more important than how inherently governmental is defined. The new definition should be coupled with the implementation of strong transparency and enforcement mechanisms. Although the current definition of inherently governmental is inadequate, most outsourcing of functions that should be reserved for federal employee performance could have been corrected if agencies had been required to regularly inventory functions performed by contractors and then promptly insource those functions if they were inappropriate for contractor performance. f. The new definition should be issued and enforced with sufficient force and accountability to ensure actual compliance—no small concern given the systematic defiance (and ignorance) of existing guidance against contracting out functions that should be reserved for federal employee performance. The process by which the term inherently governmental is redefined should eliminate the widespread culture of defiance and ignorance in relation to outsourcing of functions that should be performed by federal employees. Issuance of the new definition in a policy letter guarantees that it will be ignored, given that contracting offices in some agencies don’t even keep on file copies of policy letters. Many contracting officers give little regard to rules and guidance not included in the Federal Acquisition Regulation (FAR). Absent incorporation in the FAR the redefinition will have little influence over agency sourcing decisions. If the redefinition is not to be a mere academic exercise, then timetables and milestones must be established for the review of outstanding contracts and any necessary insourcing. Agencies should be required to assign responsibility to senior officials for ensuring transparency and enforcement. g. The new definition should address the many human capital issues related to protecting functions that should be reserved for federal employee performance. The new definition should reflect the intention of the Congress to involve the human capital community to the same extent as the acquisition community. It is because the acquisition community during the last seventeen years seized control not just of procurement decisions but of sourcing decisions generally that so many functions that should be performed by federal employees have been contracted out. It is not exactly a secret that leaders of the acquisition community tirelessly advocate for contracting out in order to expand or at least sustain their bureaucratic empires. Various rationales have been offered to justify outsourcing, even when it costs more or the work is inappropriate for contractor performance, including in-house personnel ceilings, problems with the civil service hiring process, missing skill sets in the in-house workforce, and inadequate federal employee pay. Some of these rationales reflect perceptions more than reality, while others are merely excuses. The new definition should be part of a comprehensive strategy that would forcefully address those rationales, particularly providing managers with budget authority and authorizations to hire additional in-house staff to perform functions that are reserved for federal employee performance. Functions which are not reserved for federal employee performance under any definition of inherently governmental can be outsourced. Outsourcing during the previous Administration had a disproportionate effect on women, African American employees, and veterans. The new definition should ensure that the United States has a federal civil service that reflects the diversity of the American people. Outsourcing has a vastly disproportionate impact on lower-level employees. However, many of those lower-level employees who today perform commercial functions will become the managers of 37 work, according to the Government Accountability Office (GAO), agency officials don’t even bother to subject those contractors to extra surveillance, let alone look for opportunities to bring it back in-house.23 It is believed that OMB will issue its proposed new definition of inherently governmental in early 2011. 3. THROUGH INSOURCING, REQUIRE AGENCIES TO GIVE FEDERAL EMPLOYEES OPPORTUNITIES TO PERFORM NEW AND OUTSOURCED WORK All agencies are now required to develop insourcing policies for new work and outsourced work, in particular outsourced work that is inherently governmental and wrongly contracted out, work contracted out without competition and presumably more expensive than it should be, and work contracted out that is poorly performed. Nevertheless, insourcing in non-DoD agencies is proceeding slowly. In fact, OMB has failed to issue guidance that would allow agencies to use insourcing to save money for the taxpayers by bringing in-house functions solely for cost reasons. 4. COMPILE CONTRACTOR INVENTORIES Unlike federal employees, contractors have been shrouded in darkness. There is little that agencies do not know about their civil servants. However, agencies historically have not bothered to track their contractors. Managers don’t know how much contractors cost, whether they are performing inherently governmental functions, or how many employees are paid by the contract. Fortunately, Congress has required that all agencies develop inventories of their service contracts. These inventories can be used to reduce costs by identifying contracts that don’t benefit taxpayers or identify functions that ought to be insourced because contractors are performing functions that should be reserved for federal employee performance. OMB issued guidance for the establishment of contractor inventories for the non-DoD agencies in November 2010. Some elements will not be included in the first round of inventories, which should have been made available to the public no later than January 30, 2011. 5. EXTEND THE GOVERNMENT-WIDE SUSPENSION AGAINST STARTING UP ANY NEW OMB CIRCULAR A-76 STUDIES The FY09 and FY10 Financial Services Appropriations Bills included language that would prevent new A-76 reviews from being launched by any federal agency, and that tomorrow. The new definition should ensure that the agency retains the skill and expertise of such valuable federal employees. 23 Government Accountability Office, DEPARTMENT OF HOMELAND SECURITY: Risk Assessment and Enhanced Oversight Needed to Manage Reliance on Contractors, GAO-08-142T. Government Accountability Office, DEFENSE ACQUISITIONS: Further Actions Needed to Address Weaknesses in DoD Management of Professional and Management Support Contracts, GAO-10-39. 38 prohibition is still in effect. Until the implementation of the reforms listed below, AFGE believes that this temporary suspension on new A-76 reviews should be continued: a) The establishment of a reliable system to track costs and savings from the A76 process that has been implemented, tested, and determined to be accurate and reliable, over the long-term as well as the short-term. b) Consistent with the law, the establishment of contractor inventories so that agencies can track specific contracts as well as contracts generally. c) Consistent with the law, the development and implementation of plans to actively insource new and outsourced work, particularly functions that are closely associated with inherently governmental functions, that were contracted out without competition, and are being poorly performed. d) Consistent with the law, the enforcement of government-wide prohibitions against direct conversions. e) The development and implementation of a formal internal reengineering process that could be used instead of the A-76 process. f) Revision of the rules governing the A-76 process to make it more consistent with agencies’ missions, more accountable to taxpayers, and more fair to federal employees. 1) Increase the minimum cost differential to finally take into account the often significant costs of conducting A-76 studies, including preliminary planning costs, consultants costs, costs of federal employees diverted from their actual jobs to work on privatization studies, transition costs, post-competition review costs, and proportional costs for agencies’ privatization bureaucracies (both in-house and out-house).24 2) Double the minimum cost differential for studies that last longer than 24 months—from the beginning of preliminary planning until the award decision.25 24 It is accepted in the A-76 circular that it makes little sense to shift work back and forth without at least a guesstimate that savings will be more than negligible. “The conversion differential precludes conversions based on marginal estimated savings…” Unfortunately, the conversion differential--the lesser of 10% of agency labor costs or $10 M, which is added to the non-incumbent provider—captures only “nonquantifiable costs related to a conversion, such as disruption and decreased productivity”. See OMB Circular A-76, Attachment B. 25 The biggest selling point for the revised A-76 circular was that standard privatization studies were supposed to last no longer than a year. Of course, OMB insists that a standard competition has not started until it has been formally announced, even though preliminary planning, the work conducted on an A-76 study before formal announcement, can last several years. Even excluding preliminary planning A76 studies now routinely take longer 12 months. In fact, OMB reports that the average A-76 study takes 13.6 months to complete. COMPETITIVE SOURCING: Report on Competitive Sourcing Results Fiscal 39 3) Eliminate the arbitrary 12% overhead charge on in-house bids.26 6. DON’T POLITICIZE THE PROCUREMENT PROCESS AFGE fought against the Bush Administration’s attempt to politicize the federal procurement process in order to favor contractors, and AFGE will fight against attempts to use the source selection process to favor certain contractors in exchange for commitments to “labor-friendliness”. AFGE supports efforts to improve the lives of contractor employees that would follow favorable precedents and build on earlier reforms, including preventing scofflaw contractors from bidding on new contracts, requiring all contractors to boost pay and benefits for contractor employees, making it easier for all contractor employees to be organized, and making the pay and benefits of all contractor employees public knowledge. Such reforms would benefit all contractor employees, command unanimous support from the labor movement, and truly put the federal procurement process on a “high road”. Unfortunately, there are some who insist on a different sort of “high road” for federal procurement, one that would allow certain contractors who are deemed labor-friendly or who merely commit to eventually becoming labor-friendly to receive special political preferences for federal contracts. Under at least one recent iteration of this proposal, agencies would outsource to the Department of Labor responsibility for determining the value of contractors’ special political preferences, based on, among other things, their pay and benefits. To ensure that agencies actually use the special political preferences as proponents intend, contracting overseers in all agencies would be able to vary these labor preferences in specific procurements to ensure they are determinative. Of course, there would be no need for such special political preferences if all contractors were held to the same standards. Moreover, all federal contractor employees would benefit if all contractors were held to the same standards. As even the proponents of this controversial proposal concede, there are no favorable Year 2007, May 2008, p. 9. Worse, the length is gradually increasing over time. In other words, the more the A-76 process is being used, the longer it is taking. The A-76 circular is based on standard competitions lasting no longer than a year except in unusual circumstances. Clearly, the conversion differential should be increased to take into account the growing length of A-76 studies. 26 All in-house bids are slapped with an overhead charge, which works out to 12% of personnel costs. This significant impediment to in-house bids should be eliminated. As the Department of Defense Inspector General reported about the now infamous A-76 privatization review at the Defense Finance and Accounting Service, “We do not agree that the standard factor for overhead costs is a fair estimate for calculating overhead. We believe that DoD must develop a supportable rate or alternative methodologies that permit activities to compute reasonable overhead cost estimates.” “Public-Private Competition for the Defense Finance and Accounting Service Military Retired and Annuitant Pay Functions”, Report D-2003056 (March 2003). Neither reform has been undertaken. Consequently, most if not all in-house bids are unfairly biased against federal employees. 40 precedents, whether at the federal level, the state level, or the local level. Many jurisdictions try to make procurement more humane, but they don’t use the source selection process to favor certain contractors. The use of procurement preferences increases the risk of subjectivity, politics, and corruption. The Congress, when it was controlled by Republicans, outlawed the use of the “best value” process in competitions between federal employees and contractors because of how it would have made those competitions more subjective and political. Preferences for small and disadvantaged businesses have consistently been abused. They are fraudulently obtained and they are often used to pass on work to contractors that don’t have preferences. Of course, under this proposal, the federal government would be using the procurement process, for the first time, to explicitly favor large contractors—because those are the firms most capable of qualifying for special political preferences—at the expense of small contractors. Consequently, the possibility for waste, fraud, and abuse increases substantially. Indeed, one contractor attorney suggested that her first advice to clients if this proposal were implemented would be to set up a modest subsidiary to qualify for the special political preference so that it could then pass work on that could be performed by other facilities that don’t abide by the special political preference. Ultimately, the procurement process is designed to allow federal agencies to efficiently and expeditiously secure services from the private sector. AFGE is proud to represent tens of thousands of acquisition personnel, who work under two immutable imperatives: do it fast (because program officers almost always needs contracts awarded in a hurry) and do it cheap (because resources are always finite). The cost to the nation when, say, an uninsured contractor employee’s child is treated in the emergency room is obviously a valid concern, one that could be addressed through a variety of methods— from implementing real health care reform to requiring contractors generally to contribute an appropriate amount towards their employees’ health care costs as a precondition of bidding—but not through specific federal procurements. AFGE is also obviously concerned about “high road’s” potential adverse impact on federal employees and bargaining unit work. The special political preference could be used in a public-private competition to award work performed by federal employees to a contractor even when federal employees are more efficient. Moreover, the special political preference could be used to prevent work from being insourced, even when the contractor is less efficient. Worse, the special political preference could be used to directly convert work last performed by federal employees outside of a public-private competition, i.e., a direct conversion. 41 Transportation Security Administration and Transportation Security Officers Rights and an Election at Last! After nine years of fighting, Transportation Security Officers (TSOs) stand at the precipice of collective bargaining rights and the election of AFGE as their exclusive bargaining representative. The Aviation and Transportation Security Act (ATSA) created the Transportation and Security Administration (TSA) federalizing the duties of screening passengers and baggage at airports into the TSO position. Although this was a prime opportunity to establish a highly-trained, decently-paid, and fully-empowered professional public workforce, TSA management instead used a statutory footnote in ATSA to create its own management system, devoid of the widely accepted protections afforded to federal workers in the rest of the government. AFGE has stood with TSOs as they took the fight for dignity, respect, and a true voice in the workplace to the White House, the halls of Congress, TSA management, the Federal Courts and the public. Now, with the decision of the Federal Labor Relations Authority (FLRA) in favor of AFGE’s petition for a union election and an expected decision to grant collective bargaining rights, the nation’s 40,000 TSOs are poised to finally achieve the full rights and protections of other federal workers at the Department of Homeland Security (DHS). July 2010 marked the successful confirmation of John Pistole to be the permanent head of TSA. Despite pressure from anti-union lawmakers in the House and Senate, Pistole refused to rule out TSO collective bargaining. Although Pistole has been far more accessible to TSOs than his predecessors, AFGE is increasingly frustrated by the slowness of the agency to grant TSOs collective bargaining rights and workplace protections by administrative order even in light of support of TSO rights from DHS Secretary Janet Napolitano. AFGE calls on Administrator Pistole to grant full collective bargaining rights and the same Title 5 rights and protections as other workers in DHS and provide TSOs a true voice at work by ensuring that the FLRA election proceeds without agency obstruction. Immediately prior to the Thanksgiving holiday, among the busiest air travel days each year, AFGE and our TSO members responded to a threatened “opt-out” action by a few vocal travelers in protest of TSA’s increased use of Advanced Imaging Technology and enhanced pat-downs. AFGE President John Gage and TSA Local officials from airports around the country appeared on ABC World News and MSNBC and gave interviews to numerous large newspapers including USA Today to explain to the flying public what TSA did not: The security measures were taken in response to a direct threat; TSOs are security professionals who do not choose the duties they perform, but carry them out with the mission of keeping air travel safe for the public; and that TSA must do a better job in explaining its security measures and the role of TSOs to the flying public. The efforts of AFGE and the conscientious professionalism of TSOs resulted in smooth travel without security delays over the Thanksgiving holidays and the public’s newfound 42 respect for the complicated, important and too often thankless job TSOs perform every day. Background Collective Bargaining and Title 5 Rights: Distinct Rights that Go Hand-In-Hand Electing AFGE as the exclusive representative of TSO means that TSOs will have a formal voice at work that is recognized by TSA and its managers. TSOs will have the full protection of the law when they face retaliation from hostile supervisors when they engage in employee representation procedures. TSOs will have the rights of union representation before the Equal Opportunity Commission, the Disciplinary Review Board, peer review panels, and in meetings with management and in the courts. The granting of Title 5 workplace protections by either administrative order or legislation will ensure that workers are treated fairly, the workplace is safe, and that workers are protected from retaliation when they blow the whistle on security breaches. The power of TSA management over TSOs would have remained unchecked but for leverage that AFGE has been able to exercise at key moments. AFGE’s power is attributable to our growing membership of over 12,000 TSOs. During the 11th Congress, Representative Nita Lowey (D-NY), current Homeland Security Committee Ranking Member Bennie Thompson (D-MS), and Aviation and Transportation Infrastructure Ranking Member Sheila Jackson Lee (D-TX) introduced legislation (H.R. 1881) to repeal the ATSA footnote and grant TSOs the same collective bargaining rights and workplace protections as other federal workers—including those in DHS. H.R. 1881 was favorably reported by both the House Homeland Security Committee and the Oversight and Government Reform Committee, but did not receive a vote on the House floor prior to the adjournment of Congress. In addition, no companion bill was introduced in the Senate. Despite a less-supportive change in leadership in the House and fewer supporters in the Senate due to the 2010 elections, AFGE will continue the fight for legislatively granted collective bargaining rights and workplace protections because it is the only way to make sure those rights, once given, cannot be taken away in the future. TSA Has Repeatedly Failed in its Personnel Policy Privatization of TSO jobs through the Screening Partnership Program AFGE calls upon TSA to end the Screening Partnership Program (SPP), a system that converts the inherently governmental federal screening duties performed by TSOs to private contractors. Following the tragic events of September 11, 2001, Congress and the public demanded that jobs of screening passengers and baggage be performed by federal employees. The SPP is contrary to the mandate of Congress, and in violation of the 2008 Consolidated Appropriations Act and the 2008 Defense Authorization Act, which prohibit the outsourcing of federal jobs without allowing federal employees to compete for those jobs. 43 The federal government is obligated to American taxpayers to perform its functions efficiently and spend taxpayer money wisely. Before privatizing work performed by federal employees, agencies are required to demonstrate through a cost comparison study (under the rules of OMB Circular A-76) that a contractor is more efficient. The SPP includes none of the safeguards afforded the public and most other federal workers such as a cost comparison of federal employee performance to that of the contractor, risk analysis determination, or demonstration of savings. Although the SPP gives TSOs a qualified and unenforceable right to a job with the contractor, the SPP does not remove federal screener managers. Instead, it simply adds a layer of overhead and cost by keeping federal managers and adding contractor managers, in addition to contract oversight. The SPP amounts to nothing more than a consolation prize to private contractors after their past poor performance in aviation screening led to the federalization of those jobs. The advocacy of AFGE and our TSO membership at Montana airports is responsible for putting the brakes on the Montana Airport Authority’s aggressive pursuit of the SPP. In 2009 TSA awarded private security contracts under the SPP for seven airports to a Virginia contractor, Trinity Technology Group, and is considering the applications of seven additional airports to use private contractors. After AFGE intervened on behalf of our members, and TSOs voiced their grave concerns regarding security at the airports and the possible loss of their jobs, federalized TSOs remain on the job in Montana airports and no other SPP applications have been approved. Montana airport TSOs have addressed the consideration of SPP applications by raising important and legitimate questions in the proper manner even though they have faced retaliation and intimidation from TSA management and airport officials when they actively opposed the program. Fairness to federal workers is directly linked to aviation security. AFGE calls upon Homeland Security Secretary Napolitano to immediately freeze applications under the SPP and impose upon the program the same legal requirements for privatization of federal jobs that apply to the rest of the federal government. Performance Accountability and Standards System Payouts Reach Infuriating Lows Although the Performance Accountability and Standards System (PASS) was not included in the FY 2011-2012 federal pay freeze, TSA still found a way to disappoint and anger TSOs by lowering payouts to historic levels while maintaining the same performance levels. TSA’s 2010 PASS payout is the lowest in the history of the program. In 2006, the highest rated performers received a 5% raise in addition to a $3,000 bonus. This year the top performers will get only a 2% raise and a $2,500 bonus because of a tightening budget. AFGE has long asserted that PASS payouts do not reflect a TSO’s performance, but rather the limited amount of money TSA wants to spend on compensation for the largest 44 segment of its workforce and the agency’s desire to maintain the percentage of TSOs who fall into each category. This year TSA cut in half the payouts for employees who achieved the three top levels. Bonuses for TSOs scoring at the lower performance levels who do not receive a base pay raise will see their so-called bonus cut by $100. To further stack the deck against TSOs and limit the numbers achieving the higher rating, TSA increased the point range to obtain a rating level for some positions and decreased the special bonuses. Without explanation, TSA placed Lead TSOs in a category separate from other TSOs and removed Transportation Security Managers from PASS altogether. AFGE calls on TSA to provide transparency in all its pay systems by making public the performance criteria, raises and bonuses under each. AFGE will continue to work with Congress to do away with PASS and move TSOs under the General Schedule system, which covers most federal employees and has better protections against favoritism and retaliation, but still rewards good performers. Training Is Inadequate A November report issued by the DHS Office of Inspector General (OIG) confirmed AFGE’s concerns that TSOs are not getting the training they need to effectively do their jobs. Reports since 2005 by TSOs at various airports to TSA’s Office of Ombudsman that they were not receiving sufficient time to complete required weekly training have remained unresolved. The devastating OIG report confirmed that the computers, software and monitors are not up to date and that TSA failed to provide training for new X-ray machines installed in 81 airports. After AFGE reported of these practices to former Homeland Security Committee Chairman Bennie Thompson, (D-MS), TSA removed the Training and Development component from PASS. As the elected exclusive representatives of TSOs, AFGE will be able to negotiate a grievance procedure that can ultimately result in binding, neutral arbitration to ensure that TSOs are properly trained as required by the ATSA. Testing Is Flawed Pursuant to the ATSA, all TSOs are subject to annual testing. While annual testing is vital to ensure that TSOs have gained knowledge and understanding of new equipment and new screening techniques, TSA’s constant testing is so unfair that TSOs have no faith in the ability of the agency to adequately evaluate their performance. In many instances, the flawed testing has resulted in the termination of good employees who should have been given proper remedial training and allowed to retest. TSA management, unable to guarantee proper training and testing procedures, has changed the recertification policy on an almost yearly basis. This constant change in policy did not solve the underlying problem: inadequate initial training, unfair testing procedures, and inadequate remedial training. As repeatedly has been the case, in 2010 TSOs at some airports had exceptionally high failure rates on the Image Mastery Assessment (IMA) and Practical Skills Evaluation (PSE) tests. At some airports TSOs were required to take IMA on X-Ray simulators that were markedly different that those used at checkpoint and those failing the test were 45 required to retake the test on a different type of X-Ray simulator than used during their original test. PSE testing at George Bush Intercontinental Airport had so many irregularities that TSOs believed testers were intentionally failing TSOs. Federal Security Directors were able to unilaterally declare a dual certification (checkpoint and baggage) requirement for the entire TSO workforce at their airport without allowing longterm TSOs to opt-out and without giving TSOs who failed either test the option to retrain and retain. AFGE’s vocal dissatisfaction with the TSA performance evaluation system did result in a directive allowing TSOs to grieve their test results to address issues such as equipment malfunctions during the tests or if the testing does not reflect the current standard operating procedures. Unsafe Working Conditions Leading to Injury AFGE’s advocacy focused the attention of both Congress and the public on the lack of protection against TSO exposure to ionizing radiation while screening passengers and baggage. In July 2010, AFGE Occupational Health and Safety Specialist Milly Rodríguez testified before the House Subcommittee on Federal Workforce, Postal Service and the District of Columbia emphasizing that TSA has never provided information and training on radiation to its employees. TSA never implemented the 2008 recommendations of the National Institute for Occupational Safety and Health (NIOSH) including providing regular radiation training to TSOs, improvements in equipment maintenance and some dosimeter studies of the TSO workplace. AFGE repeats its demand that TSA provide dosimeters to all TSOs, especially in light of reports in recent months of what appear to be larger than expected numbers of cancers and thyroid conditions among TSOs. AFGE worked with the International Chemical Workers Union Council Center for Worker Health and Safety Education to develop a training program on radiation exposure specifically designed to address the concerns of TSOs. Instead of providing this type of comprehensive training for its workers, TSA has actually complained about the effectiveness of AFGE’s advocacy. Despite TSA’s attempts to minimize the reporting and filing of workers’ compensation claims, the 2010 TSO injury rate of 5.3% remains virtually unchanged from the 2009 rate of 6.3%. AFGE believes this 1% drop is more likely to reflect the “case management” that TSA claims has reduced days lost to on-the-job injuries. “Case management” at TSA often consists of inappropriate harassment that has included management illegally contacting TSOs’ private physicians seeking changes to the doctor’s work order for their patient. Decreasing the reporting of injuries through these practices is by no means reducing the occurrence of injury. High Attrition Rates Noting that the job of TSO is identified as “mission-critical” jobs, in its report Beneath the Surface, the Partnership for Public Service noted given that “transportation safety and security officers and other professionals in mission-critical occupations require an 46 upfront investment to train, attrition of employees with critical skills is of particular concern given the vital role they play in support of their agency missions.” While turnover of the TSO workforce is a vast improvement over the turnover rates found under the former privatized system, the current level of attrition is far higher than Congress intended in enacting ATSA. TSA tacitly acknowledged an attrition problem in April 2006 when it implemented a job retention program. Notwithstanding the retention program, approximately 73% of TSOs who left TSA in 2007 quit their jobs; i.e., did not retire. In contrast, only one-third of other departing federal workers quit their jobs. Even though TSOs comprised only 60% of TSA’s workforce in 2009, they represented 90% of workers who left the agency in 2009. Chronically Inadequate Staffing Increasingly TSA has become reliant on split-shifts, requiring TSOs to be available to work the equivalent of a 12 hour shift. Chronically inadequate staffing leads to longer hours, extra shifts, shorter breaks, cancelled leave, and cancelled regularly scheduled days off for TSOs who remain. In turn, longer hours, shorter breaks, and mandatory overtime leads to an exhausted workforce. An exhausted workforce leads to high injury rates, low morale, and high attrition rates. All this is due to the lack of personnel to meet workloads. The passage of time has not healed this problem. In May 2008, the OIG expressed concerns that insufficient staffing at passenger checkpoints was one of the main causes of concern among TSO staff. Additionally, initiatives to improve morale were hampered due to the challenges of staffing. In 2010 TSOs continue to report that their ability to perform their duties is hindered by staffing shortages at checkpoints and in baggage. Need for Restoration of Fundamental Employee Rights Lawmakers and TSA policy makers need not reinvent the wheel to improve the personnel problems at TSA. They can reinstate Title 5, the full Rehabilitation Act, the Fair Labor Standards Act, and General Schedule pay and leave policies. These civil service protections are fully able to create an effective personnel policy for TSA’s screening personnel. All that is needed for long term personnel protection is legislative action to strengthen TSA by empowering TSOs to do their jobs to the best of their ability, and to dignify their work by restoring full constitutional and due process rights, including the right to bargain collectively should they so choose. AFGE will work with the Obama Administration and Congress to guarantee exclusive recognition for the union and collective bargaining for TSOs, by guaranteeing full Veterans’ Preference, all whistleblower protections, due process and Constitutional rights, appropriate use of leave without discipline, proper salaries and increases, and full EEO protection for TSOs. Conclusion AFGE continues its activist tradition in the fight for TSO rights. We will hold President Obama to his promise to grant collective bargaining rights to TSOs and continue to work 47 with our allies in Congress to support legislation that will restore worker protections to federal Transportation Security Officers to ensure that they have the same protections as other federal employees. These include the right to federal court review of constitutional violations, to protection from discrimination based on disability, and meaningful whistleblower protections. AFGE will also seek legislation that ends the unfair PASS system and provides full and fair compensation for TSOs. The wait for rights has been long, but AFGE is stronger than ever in its commitment to stand and fight with our TSO members until every TSO has the rights and protections of other federal workers. 48 Whistleblower Protection Introduction In 1989, Congress unanimously passed the Whistleblower Protection Act (WPA) as the premier merit system law for accountability to taxpayers. Since 1994, when amendments strengthening the WPA were added, the law has been functionally overturned by a series of increasingly hostile decisions by the U.S. Court of Appeals for the Federal Circuit. The most immediate obstacle is a series of precedents creating exceptions to coverage for any lawful disclosure evidencing specified, significant misconduct. Contrary to explicit statutory language, court precedents now exclude disclosures to co-workers, supervisors or others in the chain of command, those suspected of wrongdoing, and those where an employee is doing his or her job by making a disclosure. A 1999 court decision made it all but impossible for whistleblowers to qualify for protection by establishing a presumption that the government acts in accordance with the law and by requiring the whistleblower to prove otherwise with irrefragable--uncontested and undeniable--evidence. For the last 16 years, Congress has unanimously approved an appropriations amendment known as the anti-gag statute applying to the WPA and related good government statutes, such as the Lloyd-Lafollette Act. The anti-gag statute protects merit system worker communications with Congress from nondisclosure rules or similar types of gag orders. However, as an appropriations clause, the amendment’s effectiveness has been hampered because it does not include an available remedy. Protections of communications to Congress are so important that they should become a permanent law rather than being subject to annual reaffirmation as an appropriations amendment. After years of neglect, if not outright disdain, of whistleblower rights and protection from the Bush Administration, President Barack Obama assumed office with a track record as a supporter of whistleblower protections. President Obama noted in his White House ethics agenda that federal employees are the “watchdogs of wrongdoing and partners in performance” and pledged that his administration would “strengthen whistleblower laws to protect federal workers who expose fraud and abuse of authority in government” and to expedite the process for reviewing whistleblower claims and ensure that whistleblowers have “full access to courts and due process”. Congress Recognizes Whistleblower Protections as an Important Element of Government Accountability A few weeks into the 111th Congress, the House began debate on President Obama’s economic stimulus package. Recognizing that the bill granted enhanced whistleblower rights to all workers (federal contractor, state and local) administering the funded programs except federal workers, Representatives Todd Platts (R-PA) and Chris Van Hollen (D-MD) cosponsored the Whistleblower Enhancement Act as an amendment to the stimulus bill in recognition that strong federal worker whistleblower protections are 49 essential to the accountability necessary to properly administer the stimulus package’s programs. The Whistleblower Enhancement Act, which also passed the House with a strong bipartisan vote in 2007, included protections for Transportation Security Officers, national security whistleblowers at the FBI and intelligence agencies, protections for government contractors, jury trials so that whistleblowers have a fair day in court, and reinforced protections for federally-funded scientists. Support for the amendment was so strong that the Platts/Van Hollen amendment was included in the stimulus bill by voice vote. Although the amendment was not included in the version of the bill sent to the President, the House was again on record as supporting whistleblower protection reform for federal workers. In the waning days of the 111th Congress, the Senate passed an amended version of S. 372, the Whistleblower Protection and Enhancement Act of 2009 introduced by Sen. Daniel Akaka (D-HI) and George Voinovich (R-OH) by unanimous consent. As a result of the advocacy of AFGE and the coalition of other worker advocates and good government groups, Representatives Van Hollen and Platts worked to bring a version of the bill reforming protections of the bill applying to Title 5 and TSA workers to the House floor over the objections of Republican members of the House who sought to link federal worker whistleblower protections to questionable disclosures of classified Wikileaks documents Although the House worked quickly to pass a bill nearly identical to the Senate bill passed a few weeks earlier, an anonymous Senator’s hold defeated enactment an hour before adjournment, even though both Senate majority and minority leaders supported the bill. Conclusion AFGE strongly urges the House and Senate to immediately pass the Whistleblower Protection Enhancement Act in the new Congress. President Obama and Congressional leadership should dispel the notion that whistleblower protections for federal workers permits public disclosures of classified information. To the contrary, the Whistleblower Enhancement Act is an anti-leaks measure because it provides a safe alternative for federal workers reporting fraud, waste and abuse by working within the system. It is also time for the Obama Administration to use the power of an Executive Order to secure rights for national security workers—including security clearance review—outside of the political process. AFGE will actively support these efforts and continue the bipartisan dialog that came so close to success in the final hours of the 111th Congress. 50 Domestic Partnership Benefits Introduction The Domestic Partnership Benefits and Obligations Act of 2009, was reintroduced by Senator Joseph Lieberman (I-CT) and Representative Tammy Baldwin (D-WI) in the 111th Congress. The House bill (H.R. 2517) and the Senate companion bill (S. 1102) both provided the same-gender domestic partners of federal employees the same benefits available to spouses of married federal employees. AFGE was disappointed the bills failed to receive votes prior to the adjournment of the 111th Congress and strongly urges Senator Lieberman and Representative Baldwin to continue the fight for equality on behalf of all federal workers. The Domestic Partnership Benefits and Obligations Act is about equity. It is not, as its opponents try to argue, about providing any form of special preference or extra benefit for federal employees who have formalized their exclusive relationships with a samegender domestic partner as compared with those who marry a person of a different gender. The equalization of benefits would extend to health insurance under the Federal Employees Health Benefits Program (FEHBP), retirement benefits, rights under the Family and Medical Leave Act (FMLA), life insurance under the Federal Employees Group Life Insurance (FEGLI) plan, workers’ compensation, death and disability benefits, and reimbursement benefits for relocation, travel, and related expenses. Further, the biological and adopted children of the domestic partner would be treated just like step-children of married federal employees under the benefits listed. Finally, under the legislation, same-gender domestic partners would be subject to the same anti-nepotism and financial rules and obligations as those that apply to married federal employees. Background To become eligible for the equitable treatment provided for in the legislation, federal employees would be required to file legal affidavits of eligibility with the Office of Personnel Management (OPM) to certify that they share a home, and financial responsibilities. The employee must affirm the intention to remain in the domestic partnership indefinitely, and must notify OPM within thirty days if the partnership is dissolved. The provisions of the legislation would apply only to same-sex domestic partnerships. The practice of treating married employees and those in committed same-sex partnerships equitably with regard to health insurance and retirement benefits is wellestablished in the private sector and in many state and local governments. More than half of the Fortune 500 firms extend equal benefits to spouses and same-sex domestic partnerships. They do so not only because it is fair and appropriate, but also because the market has made such policies an imperative in the competition to attract and retain excellent employees. The federal government should do no less. It should strive to attain the highest level of fairness for its employees, and it has a duty to all taxpayers to 51 adopt employment policies that facilitate the hiring and retention of a workforce of the highest possible quality. The impending retirement of the baby boom generation of federal employees has occasioned an enormous amount of hang-wringing among administration officials and career agency managers. Private contractors have been eager to win for themselves as much as possible of the work that has been performed by retiring federal employees, and they are free to offer domestic partner benefits. A central question at the heart of all this anxiety is whether the federal government will be able to recruit the next generation, or whether the most desirable candidates for federal jobs will be lost to the private sector. Putting aside for a moment the still-enormous pay gap between the federal and nonfederal sectors and the fact that FEHBP is poorly run and as a result costs both taxpayers and federal employees more than it should, there is the issue of equitable treatment of GLBT (gay, lesbian, bisexual and transgender) people. When the Human Rights Campaign released its 2006 study of the employment practices of Fortune 500 companies with respect to domestic partners, its president, Joe Solmonese, summarized the findings as follows: “Companies do it (provide equitable benefits to domestic partners) because it’s good for business. American corporations understand that a welcoming environment attracts the best talent.”27 Refusal to provide equitable treatment with regard to the provision of employee benefits is a violation of the merit system principle that promises equal pay for substantially equal work. The economic value of family coverage for health insurance, survivor benefits for retirement, disability, workers’ compensation, and life insurance; and full family coverage of relocation costs are substantial to a worker and would have extremely modest costs for the government. The equal pay principle has historically been understood to include all financial compensation, not just salary. Non-cash federal benefits make up almost a third of a typical federal employee’s compensation. In many metropolitan areas, the salary gap between federal and non-federal jobs has actually grown in recent years so that it now stands at 24 percent on average nationwide. To exacerbate the challenge this poses to efforts by federal agencies to hire the next generation of federal employees by continuing to discriminate between married employees, and those in domestic partnerships is as irrational as it is unfair. Imagine the perspective of a high-performing federal employee in a job that the federal government admits it has trouble recruiting for, who happens to have a domestic partner and two kids. Perhaps the worker is a Certified Registered Nurse Anesthetist in the VA, or a Defense Department Information Technology Specialist with a high security classification, or an experienced DHS contract administrator with the proven ability to identify fraud on the part of contractors, or a skilled electrician who works on repair of highly complex weapons, or a Corrections Officer who puts his life on the line every day to keep us and his fellow officers safe from dangerous inmates in federal prisons. 27 “Majority of Large Firms Offer Employees Domestic Partner Benefits” by Amy Joyce, June 30, 2006, The Washington Post. 52 Consider that he or she might have a co-worker with identical job responsibilities and performance who happens to have a spouse and a couple of kids. Because the Domestic Partnership Benefits legislation has not yet been enacted, the two workers will receive vastly different compensation in return for their work for the federal government. One would enjoy subsidized family coverage from FEHBP, worth approximately $8,561.80 per year, and that subsidy is not taxed. The employee with the domestic partner and kids, in contrast, is eligible for only single coverage from FEHBP. As of 2008, the difference between what the government pays for FEHBP for family versus single coverage is $4,790.76 per year. To obtain similar insurance for his family, the employee in the domestic partnership would have to pay at least the same $4,790.76 per year in the open market, and the money spent on the premium would be tax deductible, but not tax free. A married federal employee with two children who dies early leaves his or her survivors with benefits ranging from $12,432 to $38,628 per year depending upon his or her salary. In identical circumstances, the survivors of a federal employee with a domestic partner and two children are left with nothing. If an employee in a domestic partnership becomes disabled, the worker is eligible for anywhere from $7,932 to $21,852 depending on age, earnings, and the severity of the disability. But if the employee were married with children and had the exact same age, earnings, and severity of day to keep us and his fellow officers safe from dangerous inmates in federal prisons. Consider that he or she might have a co-worker with identical job responsibilities and performance who happens to have a spouse and a couple of kids. Because the Domestic Partnership Benefits legislation has not yet been enacted, the two workers will receive vastly different compensation in return for their work for the federal government. One would enjoy subsidized family coverage from FEHBP, worth approximately $8,561.80 per year, and that subsidy is not taxed. The employee with the domestic partner and kids, in contrast, is eligible for only single coverage from FEHBP. As of 2008, the difference between what the government pays for FEHBP for family versus single coverage is $4,790.76 per year. To obtain similar insurance for his family, the employee in the domestic partnership would have to pay at least the same $4,790.76 per year in the open market, and the money spent on the premium would be tax deductible, but not tax free. A married federal employee with two children who dies early leaves his or her survivors with benefits ranging from $12,432 to $38,628 per year depending upon his or her salary. In identical circumstances, the survivors of a federal employee with a domestic partner and two children are left with nothing. If an employee in a domestic partnership becomes disabled, the worker is eligible for anywhere from $7,932 to $21,852 depending on age, earnings, and the severity of the disability. But if the employee were married with children and had the exact same age, earnings, and severity of disability, his or her disability eligibility would range from $11,640 to $32,964. 53 The difference between the retirement annuities of employees with and without survivor designations vary widely on the basis of length of service, age at retirement, high-three salary, and retirement system. The two major federal retirement systems, the Civil Service Retirement System (CSRS), and the Federal Employees Retirement System (FERS) both allow married federal employees to ensure that their survivors continue to receive benefits after they die. The employee is required to take a reduction in the amount of his or her annuity in order to “buy” this survivor protection, but in most cases, taking the survivor option costs the employee about half of the value of benefits received by the survivor. FERS provides two options for survivor annuities, either one half or one fourth of the value of the annuity. CSRS is a bit more complicated, allowing 55 percent of anything from the full annuity to 55 percent of one dollar of annuity. CSRS and FERS also allow survivor annuities to be paid to more than one former spouse at a time, as well as a widow or widower. (It is therefore difficult to argue that current law is based upon a religious concept of marriage or a view that marriages are more stable than domestic partnerships). The important point is that the financial value of survivor annuity benefits is substantial, and is, for the vast majority of federal employees who earn a full retirement annuity after a career of federal service, the single largest component of compensation after salary and their own annuity. This inequity in the treatment of a federal employee’s survivors is the most severe and the most indefensible. After all, even the most ardent opponent of equality might feel shame at depriving an elderly surviving domestic partner the survivor benefits available to an elderly surviving husband or wife. How Can Anyone Square These Facts With The Merit System Principle Of Equal Pay For Substantially Equal Work? The answer is that one cannot justify discriminating against federal employees who are in domestic partnerships versus federal employees who are in conventional marriages. All else equal, sexual orientation should not form the basis of discrimination in compensation. But unless and until the Domestic Partnership Benefits Act becomes law, discrimination in compensation will continue to occur in the federal government. Of course, passage of this legislation is not just a matter of fairness. It is also a matter of what is necessary for the federal government to succeed in recruiting the next generation of government employees, and to retain them once they form monogamous relationships and start families. There will be no reason to stay with the government when other employers, whose mission can be just as compelling as the government’s, offer higher salaries and more comprehensive benefits. Employees who do stay and are affected by the inequity will understandably feel the pain of this discrimination, and it will inevitably affect their morale and commitment to their agency’s mission. They will know that they are receiving far less compensation for their work than their married coworkers, and have every reason to feel resentment at the inequity. 54 Cost cannot serve as a valid rationale for failure to pass this legislation, as the Congressional Budget Office (CBO) has calculated that enactment would add less than one half of one percent to the existing costs of these programs. That estimate excludes the cost of turnover, recruitment, and training when experienced federal employees leave federal service because of this inequity. The cost should be viewed as if it were simply the case that larger numbers of federal employees began to marry. Surely the Congress would not respond to this by abolishing the benefits currently extended to spouses and families. As such, no one should argue that the happy occasion of the formation and maintenance of families is unaffordable or insupportable for the United States government. Administrative and Executive Action In June 2009, President Obama issued a memorandum on “Federal Benefits and NonDiscrimination” that was followed by the Office of Personnel Management (OPM) issue of Regulations to Extend Partnership Benefits” on September 15, 2009. The Presidential memo and the OPM regulations allow the federal government to provide nonstatutory benefits to domestic partners of federal employees. Also in 2009 the Office of Special Counsel reinstated its longstanding policy of accepting complaints of sexual orientation discrimination in federal employment for investigation. Scott Bloch, the Special Counsel under former President Bush, refused to pursue these complaints during his term. Conclusion The Domestic Partnership Benefits Act is fair and equitable for employees, is affordable for the taxpayers, and will greatly enhance recruiting and retention in the federal government. It should be passed and signed into law with all due speed. 55 Employment Non-Discrimination Act (ENDA) Background The pursuit of justice has not always been easy or popular, but AFGE stands true to a basic tenet of fairness: an employee or job applicant should be judged by his or her ability to perform the job. In this light, AFGE strongly opposes employment discrimination on the basis of sexual orientation. Right now, it is not a statutory civil rights violation to fire a hard-working, dedicated federal employee simply because that worker is not heterosexual – and that is wrong. Although this protection has been applied administratively to federal employees for three decades, the most recent Special Counsel systematically denied federal workers a process to remedy discrimination based on sexual orientation demonstrating the need for statutory protections. The Employment Non-Discrimination Act (ENDA) was reintroduced in the Senate as S. 1584 by Senator Jeff Merkley (D-OR) and in the House as H.R. 3017 by Rep. Barney Frank (D-MA). ENDA extends federal employment discrimination protections currently provided on race, religion, sex national origin, age and disability to sexual orientation for both public and private workers. AFGE supports ENDA as well as legislation extending benefits to domestic partners of federal employees. ENDA Provides Basic Legal Protections Extends federal employment discrimination protections currently based on race, sex, religion, national origin, age and disability to sexual orientation. ENDA extends fair employment practices and does not convey special rights. Prohibits public and private employers, employment agencies and labor unions from using an individual’s sexual orientation as the basis for employment decisions. Provides for the same process as permitted under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act but has limited remedies. Remedies that are available for cases of statistically disparate impact (affirmative action, quotas or the prohibitions of policy or practice) are permissible under ENDA. What ENDA Does Not Do: Does not cover most religious organizations and employers with 15 or fewer employees. Does not apply to the uniformed members of the armed forces and does not affect current law on lesbians and gays in the military. Does not require an employer to provide benefits for the same-sex partner of an employee. 56 Does not allow the Equal Employment Opportunity Commission (EEOC) to collect statistics on sexual orientation. Although both the House and Senate bills had substantial bipartisan support, no votes were held on the legislation. Conclusion AFGE strongly urges the reintroduction and passage of ENDA in the House and Senate. 57 Paid Parental Leave Introduction Despite the protections of the Family and Medical Leave Act (FMLA), federal workers are among those who must choose between a paycheck and meeting their family obligations because they currently have no paid parental leave. As it did during the 110th Congress, the House passed H.R. 626, the Federal Employee Paid parental Leave Act on June 4, 2009 with a bipartisan vote of 248 – 154. The bill and its Senate companion, S. 354, introduced by Senator Jim Webb (D-VA) provided federal employees 4 of the 12 weeks of family medical leave as paid leave upon the birth, adoption or fostering of a child. Virtually all research on child development and family stability supports the notion that parent-infant bonding during the earliest months of life is crucial. Children who form strong emotional bonds or “attachment” with their parents are most likely to do well in school, have positive relationships with others, and enjoy good health during their lifetimes. These are outcomes that should be the goal for all children, including those of federal employees. Spending time with a newborn or a newly adopted child should not be viewed as a personal choice, or a luxury that only the rich should be able to afford. The only reason a new parent would ever go back to work immediately after the birth or adoption of a child—even with the protections of the FMLA—is because she or he could not do without his or her paycheck. And far too many workers in both the federal government and outside must make this terrible choice. Congressional opponents of paid parental leave for federal employees have raised arguments largely based on cost, or notions that attempt to “rank” parental status and are unrealistic about the ability of federal workers to accrue leave. No one can accurately project the cost of extending this benefit to new parents, but we can speculate on the categories of cost of failing to do so. Productivity is lost when a parent has had to come back to work too soon to have found proper daycare for a newborn or newly adopted child or when federal employees come to work when they are ill because they used up all of their sick leave during the adoption process. A lack of paid parental leave also negatively impacts the government when a good worker, trained at taxpayer expense, decides to leave federal service for another employer who does offer paid leave. The Federal Employee Paid Parental Leave Act Some opposition is based on irrelevant distinctions between adoptive parents, birth parents, mothers and fathers. The FMLA settled the question of whether anyone besides a woman who has just given birth deserves time off from work to care for a child. For that same reason AFGE opposes attempts to create an employer-financed short-term disability insurance for federal employees as a means of providing paid maternity leave for birth mothers. Such a short-term disability insurance program would not provide a solution for new fathers or new adoptive parents and is therefore 58 discriminatory as a solution to the problem of providing paid leave to new parents. The Federal Employee Paid Parental Leave Act takes it as a given that all parents deserve equal treatment. Federal employees are only able to accumulate a maximum of 30 days of annual leave, not an adequate amount of time for providing care to a newborn or a newly adopted child. By most conservative estimates it would take a federal worker who takes two weeks of annual leave and 3 days of sick leave per year close to 5 years to accrue enough sick and annual leave to receive pay during the 12 weeks of parental leave allowed under FMLA. Even if a federal worker never got sick and never went on vacation it would take over 2 years to accumulate enough leave to pay for 12 weeks of parental leave. The alternatives suggested by federal employee paid parental leave opponents are far too simplistic and unrealistic to adequately address the problem. Federal workers who take unpaid parental leave too often fall behind on their bills and face financial ruin. Federal workers in their child-bearing or adopting years, earn less, on average, than other federal employees. They are at a moment in their careers when they can least afford to take any time off without pay, and least likely to have accumulated significant savings. One AFGE member wrote she has been a federal employee since 2002, and has had 3 children during that time. She wrote: I found it very difficult to keep leave since I am using it for doctor’s appointments, maternity leave and other instances of sickness that may occur with me or my children. Since 2002 I have borrowed 6 weeks of leave for maternity leave—which took me over 2 years to pay back. During the period of time when I returned to work and had to pay my sick leave back, neither me nor my kids could afford to get sick because I did not have any leave to use. During my duration of Leave Without Pay I had to resort to public assistance to make ends meet. It was very hard to ask for help during my maternity leave. I had to explain to them that I make more than some of the social workers taking my application but I am currently on leave without pay and need assistance until my 8 weeks maternity period is over. Although there is no law providing paid parental leave for federal workers that would prevent the situation described by the AFGE member, the federal government currently reimburses federal contractors and grantees for the cost of providing paid parental leave to their workers. Surely if such practice is affordable and reasonable for contractors and grantees, federal employees should be eligible for similar treatment. Conclusion The time has come for the federal government to set the standard for U.S. employers on paid parental leave. Despite the failed but pervasive arguments of those who seek to blame federal worker wages and benefits for the current budget crisis, AFGE knows that the federal government can only attract and keep the workforce necessary to carry out its mission by providing benefits on par with other large employers. AFGE is an active member of a coalition of worker and work-family advocates in support of the 59 legislation. The federal government should set a clear example to the majority of private employers who refuse extend this crucial benefit to their employees unless their competitors or the law requires it of them. The benefits to children and families of four weeks of paid parental leave are enormous and long-lasting. AFGE strongly urges reintroduction and passage of the Federal Employee Paid Parental Leave Act during the 112th Congress. 60 “One America, Many Voices” Act Introduction According to the U.S. Census Bureau, over 47 million people currently living in the U.S. speak a language other than English. More than 11 million people in the U.S. are linguistically isolated, meaning that they lack a command of the English language and have no one to help them with language issues on a regular basis. A growing number of federal employees provide services to the linguistically isolated by using multilingual skills in their official duties to explain application processes, determine benefit eligibility and provide public safety. Increasingly, the multilingual skills of federal employees are an absolute necessity to serve the public and accomplish the mission of federal agencies. Yet there is no standard across federal agencies to provide compensation for federal workers who make substantial use of their multilingual skills in the workplace. The “One America, Many Voices” Act In 2010 Representative Mike Honda (D-CA) reintroduced the "One America, Many Voices" Act (H.R. 4832) to ensure that all federal workers who use their multilingual skills in the workplace on a regular basis are fairly compensated in the 111th Congress. The bill amends 5 U.S.C. § 5545 by adding multilingual skills to the list of factors for which a differential might be paid. Current law provides for a pay differential to federal workers for night, standby, irregular, and hazardous duty work. The amendment authorizes the head of an agency to pay a 5% differential to any employee who makes substantial use of a foreign language in his or her official duties. The necessity for a multilingual pay differential has been recognized by federal law enforcement agencies. Agencies such as Customs and Border Protection and the Border Patrol recognize multilingual skills through either a pay differential or bonuses. Employees who can communicate effectively with the populations federal agencies are mandated to serve greatly assist the agencies in carrying out their respective missions. In addition to adequately recognizing the skills of current federal workers, a multilingual pay differential would also help to entice young workers with multilingual skills into federal civil service. Although the private sector often pays a substantial dividend for the ability to speak fluently more than one language, many young workers with a commitment to their communities would be more likely to consider federal employment as a career option if they were to receive adequate compensation for their much soughtafter language skills. A number of federal agency offices are located in areas with a large and growing population of citizens with limited English speaking ability, such as California, New Mexico, Texas, New York, and Hawaii. Between 1990 and 2000, the non-English speaking population doubled in Nevada, Georgia, North Carolina, Utah, Arkansas and Oregon. Multilingual skills will become increasingly necessary to foster client communication for effective delivery of services and for the successful function of 61 federal agencies. The "One America, Many Voices" Act provides both a mechanism to pay current federal workers using their bilingual skills on the job, and works as an incentive to aid in the future recruitment of bilingual applicants. Conclusion AFGE is actively seeking introduction of the "One America, Many Voices" Act in the House and Senate and to show support for the legislation by adding a long and diverse list of cosponsors to the bill. The benefits of a more efficient government and better services to the public will far outweigh the modest cost of paying this differential. 62 Department of Veterans Affairs Introduction In the 112th Congress, AFGE and the National VA Council (AFGE) will seek more accountability for Department of Veterans Affairs (VA) spending practices, compliance with personnel provisions in recent health care and benefits legislation and equal rights and fair treatment for all VA employees, including veterans. In addition, the VA should strive harder to become the model employer of the veterans it serves, We will also continue our efforts to curb the VA’s illegal and wasteful outsourcing of functions that are inherently governmental or more appropriately performed by its own workforce, including veterans who bring a special dedication to their work on behalf of others who have also served. Finally, AFGE is very troubled by the lack of permanent leadership in two of the three VA agencies. Both the Veterans Benefits Administration (VBA) and National Cemetery Administration (NCA) are still operating under the direction of Acting Undersecretaries who were in place during the prior Administration. This lack of permanent leadership greatly impedes the VA’s ability to introduce innovations, cost efficiencies and personnel policies that better serve the interests of veterans, taxpayers and the VA workforce. Congressional Action Needed: Appoint permanent Under Secretaries of the Veterans Benefits Administration and National Cemetery Administration. More Accountability for VA Spending: Where did all the direct need dollars go? Lawmakers and veterans’ groups count on AFGE members to be the “eyes and ears on the ground” to monitor VA spending practices. Our members’ reports indicate that the VA continues to use funding increases from Congress to expand its already top heavy management workforce and pay excessive management bonuses, at the expense of direct services to veterans. Funding for the VA health care system was more adequate and predictable last year, thanks to successful efforts by AFGE working with veterans service organizations (“VSO”) to secure advance appropriations funding reform legislation in 2009 (Public Law 111-81). However, we are troubled by reports from several Veterans Integrated Service Networks (VISN) that directors are implementing hiring caps even though permanent funding for Fiscal Year 2011 was already appropriated as part of the new two-year funding cycle. Both the Veterans Health Administration (VHA) and VBA continue to expand their already top heavy workforce with new management layers, while front line staff struggle to provide direct services to veterans. The budgets and staff at the VA’s 21 VISN 63 offices have exploded far beyond initial levels, and have also led to more wasteful layers of management to support the VISNs within the medical centers. Our clinicians report that at many facilities, new patient care initiatives are top heavy with managers without any corresponding increase in front line clinicians. The most glaring example of late is the new team based “PACT” initiative. While this team approach has the potential to improve quality and access of veterans’ care, the early evidence suggests that the new services to be delivered through PACT are not being supported by sufficient staff. Rather, PACT is placing significant new responsibilities on VA physicians and nurses who are already carrying caseloads of hundreds, in some cases, more than a thousand patients. In addition, some PACT teamlets are being staffed by removing clinicians form other units that are badly understaffed. Some clinicians assigned to PACT teamlets have been required to perform functions for PACT that are outside their scope of practice or their license. Even at this early stage of PACT, we are seeing an increase in “wait list gaming” that impedes veterans from getting appointments in order to produce favorable performance measures for managers. The Care Coordination Home Telehealth Program is another recent VHA initiative that is understaffed, and diverting staff from other needed areas. Similarly, VBA continues to expand its management workforce at the expense of front line claims processing staff. Many of the new coaches and assistant coaches at the VBA regional offices (ROs) lack the experience or expertise to mentor other employees, perform quality reviews or process claims themselves. As a result, they must take experienced employees out of production to conduct quality reviews and supervision. As discussed below, faster implementation of the supervisor skills certification provisions in 2008 legislation could alleviate some of this problem. We also urge greater oversight of VBA’s management of the pilot projects currently in place in a number of ROs to identify innovations that could reduce the claims backlog. Enormous resources have been invested in these pilot projects, and to date, some helpful lessons have been learned. However, there is a severe lack of coordination by VBA leadership to establish a set of best practices and benchmarks that can transform these pilots into permanent programs on a national scale. Congressional Action Needed -- Oversight and Investigation of: VHA VISN organizational structure, staffing levels and budgets. Staffing for PACT, telehealth and other health care delivery initiatives. VBA management structure, and skill levels of managers involved in supervision, quality assurance and training. Executive bonus and pay provisions in P.L. 111-163. 64 Compliance with Recent Personnel Legislation We urge lawmakers to exert pressure on the VA to comply with healthcare and benefit personnel laws that are still not fully implemented, including provisions still not in place seven years after enactment! These delays and acts of noncompliance impact workplace morale, reduce veterans’ access to services, and weaken the VA’s ability to recruit and retain clinicians in the face of a rapidly aging VA workforce. The Caregivers and Veterans Omnibus Health Services Act (Public Law 111-163) (Caregiver Act), enacted in May 2010, included several provisions to improve nurse recruitment and retention (in addition to provisions we strongly opposed such as 400 percent executive nurse bonus increases, new large pharmacist executive bonuses, and increased discretion over physician and dentist executive pay, and the unjustified expansion of the broken, unfair Hybrid Title 38 personnel system.) We are troubled by reports of VHA foot dragging in issuing guidance as well as some direct noncompliance with these new requirements. For example, some managers are refusing to recognize that part time nurses can now acquire permanent employment status after two years (and retain permanent rights if they convert from full time to part time status). Other facilities are ignoring the requirement in both the Caregiver Act and 2004 personnel legislation (P.L.108-445) to limit nurse mandatory overtime to emergency circumstances. We continue to receive reports of VHA employees denied tuition assistance despite provisions in the 2010 law that expand access to this valuable recruitment and retention tool. VHA is also vastly underutilizing another nurse recruitment and retention tool enacted in the 2004 law and strengthened by the Caregiver Act: authority to offer alternative work schedules (AWS) that provide full-time pay for three 12-hour days. Despite the fact that AWS is extremely popular among nurses working in other health care settings, the VA has made it available in only a handful of facilities. As discussed below, the VA has invoked an unintended loophole in Title 38 bargaining rights to avoid compliance with a number of these requirements, as well as other personnel legislation for Title 38 health care professionals. Thus, legislation to restore equal bargaining rights for Title 38 clinicians is essential to ensuring VA’s compliance with most personnel laws. VBA’s delays in complying with the Veterans’ Benefits Improvement Act (Public Law 110-389), enacted in 2008, have severely limited its ability to reduce the disability claims backlog as well as build and retain a strong claims processing workforce. VBA continues to lag far behind in implementation of provisions for a more workable performance measurement system that would properly credit work to develop and process claims accurately, which in turn would alleviate the claims backlog. As a result, an assembly line mentality persists at VBA, along with pervasive shortcuts in training for new and senior employees handling increasingly complex claims. 65 The human loss to veterans occurs on both ends: Veterans filing benefits claims experience more delays and errors, and veterans who are dedicated to serving fellow veterans as VBA employees are unfairly terminated because of policies that rush new hires into production and impose arbitrary, unreasonable performance standards on senior employees. As already noted, VBA has still not implemented the 2008 statutory requirement for skills certification testing of supervisors who are in desperate need of more expertise for mentoring and quality assurance functions. An overhaul of the skills certification test already in place for veterans service representatives (VSR) is also long overdue; it is still plagued by very low passage rates and is not a reliable measure of performance. Congressional Action Needed: Expedite compliance with part-time nurse, nurse overtime, loan assistance and alternative work schedule provisions in P.L. 111-163 and P.L. 108-445. Expedite implementation of supervisor skills certification provisions in and work credit provisions in Public Law 110-389. Equal Employment Rights for VA Employees Equal Bargaining Rights For Title 38 Health Care Professionals Since 2003, the VA has prohibited collective bargaining over most workplace issues impacting Title 38 clinicians, resulting in starkly different bargaining rights than other clinicians with Title 5 rights at VA, military and federal prison facilities. These Title 38 clinicians - physicians, dentists, registered nurses (RN), physician assistants (PA), podiatrists, optometrists, chiropractors, and expanded duty dental auxiliaries – are covered instead by “Section 7422” bargaining rules. Arbitrary inconsistencies have resulted from these Bush era policies. VA Hybrid Title 38 psychologists can bargain over schedules but VA psychiatrists cannot, and VA licensed practical nurses (LPN)s can bargain over assignments but RNs cannot. A physician at a military or federal prison facility can negotiate over weekend rounds but a VA physician cannot. By singling out Title 38 clinicians, the VA is also singling out veterans who receive their care at the VA because their physicians and nurses are less able to speak up for safe and quality patient care. Even though the prior Administration’s reading of Section 7422 was inconsistent with Congressional intent and very damaging to recruitment and retention of health care personnel, the VA dug in its heels and invoked Section 7422 bargaining exemptions to justify noncompliance with a growing number of its own policies and regulations and personnel protections enacted by Congress. For Title 38 employees, enforcement of basic workplace rights, including equal employment, unfair labor practice and workers compensation protections, became virtually impossible. 66 At the start of current Administration, we had good reason to believe that it would reject the Bush approach, and return to the narrower reading of that law adopted by the Clinton Administration. The joint labor-management partnership agreement reached during the Clinton administration set reasonable limits on the scope of Title 38 bargaining. In a 2008 letter issued during his campaign, President Obama promised AFGE that he would address the Section 7422 problem, recognizing that “collective bargaining rights are fundamental to ensure quality health care delivery”. AFGE launched its legislative campaign during the same period, securing bipartisan support for a 7422 legislative fix in both the 110th and 111th Congresses. Last summer, the Senate Committee on Veterans’ Affairs approved legislation for equal bargaining rights over compensation matters, with support from every Democratic Committee member. Several national veterans’ organizations have also publicly expressed their support for restoration of these rights. Sadly, the current Administration has since made its position clear in testimony to Congress and in Secretary-level “7422” determinations: The Department will continue to apply the Bush era interpretation of the law because, in the its view, equal collective bargaining rights for VA Title 38 clinicians would endanger patients and interfere with management rights. AFGE was again somewhat encouraged in 2009 when the VA offered to participate in a labor-management workgroup to define a more workable interpretation of Title 38 bargaining law. The workgroup process turned out to be very frustrating and delayridden, but we were pleased to reach consensus on a small number of joint recommendations that expanded bargaining rights. Then, after a very long wait, we received the Secretary’s decision in December 2010. We were extremely disappointed to learn that he had decimated several joint recommendations by unilaterally altering joint language from the workgroup. Further discussions with the Secretary are likely to continue this year. Clearly, the only effective solution to the 7422 dilemma is legislation. The rights of VA doctors and nurses must no longer hinge on presidential elections or the discretion of VA human resources personnel. Congressional Action Needed: Enact legislation to amend 38 USC §7422 to restore Congressional intent to provide Title 38 health care professionals with rights to bargain over indirect patient care, peer review and compensation matters equal to those enjoyed by hybrid Title 38 VA health care professionals and federal employees working in military hospitals and other federal health care systems. 67 Hybrid Title 38 Personnel System VHA’s Hybrid Title 38 personnel system has grown dramatically over the last decade, to cover 26 occupations and over 50,000 employees. The Caregiver Act authorized the conversion of all VHA’s nursing assistant from the Title 5 to the Hybrid system, and gave the Secretary discretion to convert all other Title 5 positions involved in direct patient care. AFGE remains very concerned about the fairness, workability and costs associated with the Hybrid Title 38 system. We vigorously opposed the expansion provisions in the Caregiver Act because it further erodes the civil services protections under the Government-wide merit protection system, and takes away Title 5 appeal rights to veterans seeking to enforce veterans’ preference rules. The promotion process for Hybrid employees lacks equity, transparency and accountability. The process for boarding new occupations is extremely slow. Since hiring is done locally, there is a greater risk of inconsistencies in grade and duties for the same position at different facilities. We have also called on VHA to publish more guidance for translating military experience as medicals and military corpsmen into hybrid positions such as health technicians and licensed practical nurses. Finally, the hybrid system is costly. The VA has allocated a large number of medical dollars to hire more human resources personal to manage this flawed system that would be better spent on direct patient needs. Congressional Action Needed: Conduct oversight of the Hybrid Title 38 hiring timeframes, human resources personnel costs, and consistency and fairness of appointments and promotions for hybrid positions. Ease the transition of medics and military corpsmen to VHA hybrid Title 38 positions. VA Physicians and Dentists In 2004, Congress enacted legislation that reformed the pay system for VA physicians and dentists (P.L. 108-445). One of the goals of that legislation was to reduce the VA’s reliance on contract care providers by ensuring that VA provider pay was better aligned with that of other health care employers. Comprehensive oversight of P.L. 108-445 is long overdue. Questions have arisen about all three components of the revised system: Base, Market and Performance Pay, and how effective they have been at improving recruitment and retention of well qualified physicians and dentists. For example, AFGE has long been concerned about the lack of transparency in the peer panel process used to set market pay at each 68 facility. We have seen widespread abuse at the facility and VISN level of the system for setting performance pay, including enormous delays in issuing performance measures and the use of inappropriate measures that were developed without any input from front line clinicians or their representatives. Last year, AFGE secured a bill in the House to require the VA to comply with the 2004 statutory requirement to issue national guidelines for performance pay measures based on individual achievement. Another underutilized VHA recruitment and retention tool is reimbursement for continuing medical education (CME) to update skills and meet licensing requirements. In 1991, Congress enacted legislation to provide VA board-certified physicians and dentists with up to $1000 in annual CME reimbursement; this amount has not been increased in a decade. As a result, the VA lags far behind many other health care employers who offer this benefit. Other Title 38 and Hybrid Title 38 VA clinicians also have CME expenses but reimbursement of their costs are completely within the discretion of local management. Our legislative proposal for a modest increase in the physician and dentist CME benefit was introduced in the last Congress. While we were pleased to see provisions added to extend this benefit to other VHA employees, we strongly opposed language endorsed by the VA that would have left all CME reimbursement to the discretion of management, and would have unduly restricted access to outside courses. Congressional Action Needed: Oversee of the implementation of the physician and dentist pay provisions in P.L. 108-445, and the executive pay provision for physicians and dentists in P.L. 111163. Investigate impact of VA regulation that requires physicians and dentists to be on a “24/7” schedule on facility policies for working overtime. Enact legislation to require the Department to issue nationally uniform guidelines for performance pay criteria, and to clarify that all performance pay criteria must only be based on individual achievement, not facility-wide performance or factors beyond the provider’s control. Enact legislation to keep the VA competitive with other health care employers by increasing the annual amount of continuing medical education reimbursement. Fair Treatment of Veterans Canteen Service Employees The Veterans Canteen Service (VCS) was established by Congress in 1946. VCS has retail, food and vending operations in VA medical facilities and some benefits offices. VCS operates with nonappropriated funds and its 3000 employees are appointed under a separate section of Title 38 from other Title 38 health care employees. As a result, VCS employees have no appeal rights through the negotiated grievance process or Merit Systems Protection Board if faced with termination and other adverse actions. Nor can they ever acquire permanent employment rights. (In contrast, Title 5 employees acquire permanent status after one year, and most Title 38 employees acquire 69 permanent status after two years.) In addition, the canteen workforce – which is comprised of a disproportionate number of women and minorities -- is often paid less than other VA employees performing the same duties, especially in food service. Congressional Action Needed: Enact legislation to provide Veterans Canteen Service employees appointed under Section 7802 with full appeal and remedy rights under 5 USC Chapters 71 and 75. Investigate use of Canteen employees to fill non-Canteen positions in VA medical centers. VA Outsourcing Hurts Employment Opportunities for Tomorrow’s Veterans: Time to Insource! The country’s economic woes continue to take an especially heavy toll on veterans’ employment opportunities. According to the most recent Bureau of Labor Statistics figures, employment prospects for veterans remain much bleaker than for the general population. We commend the Administration for its leadership in promoting veteran employment in the federal sector, including the Veterans Employment Initiative launched last year (Executive Order 13518) to increase hiring of veterans and veteran jobs, and establish a new interagency Council on Veterans Employment to be co-chaired by the VA and Labor Department Secretaries. We can think of no better way for Secretary Shinseki to lead the way on veterans’ employment than to make his own agency the model of model veteran employers. To date, his efforts have been modest at best. The Secretary has identified small businesses as a source of veterans’ employment and has stressed the importance of jobs to achieve his laudable goal of eliminating veterans’ homelessness. Unfortunately, VA’s widespread, largely illegal use of contractors in VA hospitals, benefits offices and national cemeteries, and in information technology (e.g. document scanning) has deprived veterans, including service-connected disabled veterans, of thousands of entry level employment opportunities. Despite clear language in VA and government wide appropriations laws that prohibit “direct conversions” (outsourcing without public-private competition), VA has not taken steps to curb these illegal, harmful practices. Here too, veterans lose on both ends: the loss of excellent employment opportunities and lower quality VA services performed by contractors concerned more about their bottom line than about the mission of the VA. For example, AFGE has testified about national cemeteries maintained by contract lawn services that use workers who behave inappropriately at these sacred locations, and about the poor quality of hospital laundry and food services provided by contractors. AFGE applauds OMB for requiring all federal agencies, including the VA to establish inventories of all their current contracts to determine which should be cancelled and 70 which should be insourced, i.e. brought back in to the agency. We believe that all moderately skilled VA jobs should be insourced and reserved for veterans, especially those recovering from a disability. Some of the other VA functions that should be insourced, because they are more appropriately performed by the agency rather than a for profit contractor, include: the “comp and pen” disability exams used to determine service connection for VA benefits and health coverage, certain contract care arrangements and the collection of third party health insurance payments. At both the national and local levels, VHA continues to abuse its statutory “sharing” authority to arrange for non-VA care, which is only supposed to be exercised in limited circumstances, i.e. when VA care is not geographically accessible or cannot provide care for a specialized medical need. We have been especially concerned about the Project HERO pilot project in place in 4 VISNs, that increased VA health care outsourcing in two significant ways: first, by increasing the number of veterans referred outside the VA even when a VA facility was close by, and second, by using contractors to arrange for care, a function historically done by care coordinators within the VA. We were pleased to read on HERO’s website that the pilot will end after next year. Notwithstanding Project HERO, AFGE believes that the VA will remain under great pressure to contract out health care services at excessive, harmful levels. Therefore, we urge Congress to remain vigilant on this front, for the adverse impact on both quality of care and cost. VA central office does not appear to adequately monitor the amount of contract care used at local facilities. Oversight of contract care expenditures is made more difficult when facilities use funds from multiple accounts to pay for outside services. AFGE urges implementation of the 2008 recommendations of the VA Office of Inspector General to strengthen VHA controls over its fee basis program to reduce payment, justification and authorization errors. As discussed earlier, medical centers that are anticipating budget cuts are capping hiring and turning to agency nurses and other contract care to close the gap. Congressional Action Needed: Expedite implementation of Inspector General recommendations to improve controls over VHA’s fee basis program. Monitor wrap up of Project HERO and plans for use of HERO “lessons learned”, and the impact of the pilot on veterans’ care. Investigate credentialing requirements for VA contract nurses, physicians and other providers. Reintroduce legislation to improve PA employment opportunities for military medics and corpsmen who wish to transition to civilian employment in the VA. Require the VA to provide guidance to and enforce sanctions against management officials who violate federal outsourcing laws. Expedite the development of VA’s insourcing plan, and evaluate its impact on veterans’ job opportunities. 71 Veterans’ Preference Overhaul: 21st Century Overhaul Needed AFGE will continue to work with veterans’ groups this year on strengthening the complex set of rules governing veterans’ preference in federal employment, through both legislation and agency action. One of the most glaring gaps in veterans’ preference rules is the lack of appeal rights for veterans applying for Title 38 VA health care jobs. Legislation is needed to overturn a 2003 Federal Circuit court decision that held that the right to appeal to the Merit Systems Protection Board and Labor Department under the Veterans Employment Opportunities Act (VEOA) did not apply to an Army veteran who was turned down for a VA psychiatrist job. It is hard to believe that the men and women who are healing veterans at VA hospitals and clinics, including the many medics who transition to VA physician, RN and physician assistant jobs after serving, lack the same employment rights as other veterans seeking or working in Title 5 positions. It makes no sense for a VA physician, RN, or LPN who has served his or her country to have fewer employment opportunities than a veteran delivering health care at military hospitals or other federal facilities. A statutory fix is also needed to extend veterans’ preference rules to promotions and reassignments, a gap that especially impacts veterans in the Reserves and National Guard who take multiple leaves from their federal jobs. A change in Labor Department regulations is needed to update the list of jobs restricted to preference eligibles. These positions, such as custodian, have been an excellent source of entry level employment for veterans at VA medical centers.(until VA outsources them.) Others on the list, such as elevator operator and messenger, are out of date. Compliance depends on good data and familiarity with the law. OPM needs to collect comprehensive data on agency efforts to recruit and retain veterans. Training of federal hiring officials is also needed, to ensure greater compliance with rules, and to properly rate the many relevant skills that veterans have acquired through their military service. New regulations are needed to provide Title 38 employers with similar guidance for crediting military service that is provided under Title 5. Congressional Action Needed: Extend coverage of the Veterans Employment Opportunities Act, including appeal rights, to all hybrid and pure Title 38 employees. Extend veterans’ preference laws to reassignments and promotions. Update and expand the list of restricted positions for preference eligibles through legislation and/or regulation. Improve OPM data collection on agency veteran employment policies. Increase training for federal hiring officials to increase compliance and improve rating of military experience; Provide Title 38 guidance for crediting military service. 72 Include loss of veterans’ employment opportunities as a criterion in the publicprivate competition process; Strengthen compliance with the existing regulatory requirement that management give priority to preference eligibles when jobs that are restricted to preference eligibles are outsourced. 73 Department of Defense: Keeping Our Nation Safe and Secure Introduction AFGE is honored to represent more than 200,000 federal employees in the Department of Defense (DoD)—hard-working public servants whose skill and dedication were instrumental in winning the Cold War and making the military capabilities of the United States of America second to none. AFGE’s DoD members perform an extraordinary variety of critical tasks for the warfighters in Iraq and Afghanistan as well as for taxpayers back home—from maintaining planes, ships, and tanks at constant states of readiness in depots and arsenals to administering contracts for goods and services and trying to prevent contractors from raiding the Treasury. Protecting Warfighters and Taxpayers from False Efficiencies On January 6, 2011, DoD announced, after an almost six month review, various efficiency initiatives that would result in, over five years, “approximately $100 billion in savings”—or, more precisely, reallocations of existing funding to other higher priority objectives since the department’s budget would continue to increase, overall. More than one-half of those savings, or $54 billion, come from capping the salaries and the size of the civilian workforce. Less than $6 billion would be cut from service contractor costs, even though DoD’s service contractor workforce is more than twice the size of the civilian workforce and service contractor costs more than doubled during the Bush Administration, reaching $200 billion annually. This cap on the size of the civilian workforce would prevent the department from rebalancing its overall workforce, pursuant to bipartisan reforms, after nearly twenty years of indiscriminate privatization. New functions or increases in existing functions would have to be contracted out even if the work should be performed by civilian employees for cost or programmatic reasons. Inherently governmental, closely associated with inherently governmental, and critical work that has been wrongly outsourced would be left in the hands of contractors, as well as work that could be performed more efficiently by civilian employees. Once again, DoD is using civilian employees as a billpayer for ruinously expensive service contractors. This arbitrary cap on the size of the civilian workforce is against the law28, will increase costs to taxpayers, and undermine the capacity of warfighters. By law, the department’s inherently governmental functions must be performed by civilian employees; the department must use civilian employees to perform closely associated with inherently governmental functions to the maximum extent practicable, the department must correct any unauthorized personal services contracts, through elimination, modification, or insourcing, the department must give “special consideration” to using civilian employees to perform functions that have been outsourced without 28 74 AFGE strongly opposes this “efficiency (sic) initiative” and will work with Congress to ensure that the civilian workforce is managed by workloads and budgets, consistent with sourcing laws. Promoting Sourcing Policies That Benefit Taxpayers and Warfighters 1. ENFORCE PROHIBITIONS AGAINST DIRECT CONVERSIONS: Consistent with the law, no work last performed by DoD employees should be contracted out without first conducting full cost comparisons. The Congress, on a bipartisan basis, has, repeatedly, prohibited agencies from perpetrating “direct conversions”—the term used to describe instances in which agencies give work performed by federal employees to contractors without first conducting full cost comparisons. In FY10, Congress closed all loopholes, prohibiting all agencies from contracting out functions last performed by any number of federal employees without first conducting full cost comparisons. However, the Office of Management and Budget (OMB) has issued no guidance to agencies to implement the new prohibition and DoD continues to perpetrate direct conversions. No single factor is more responsible for the hollowing out of DoD’s civil service than direct conversions. Congress should require the Obama Administration to ensure that DoD complies with the statutory prohibitions against direct conversions. Direct conversions are a particular problem for DoD’s Non-Appropriated Fund (NAF) employees. The Government Accounting Office (GAO), in a controversial bid protest decision involving the Air Force’s troubled Food Transformation Initiative, insists that NAF employees are not covered by a law that requires DoD to conduct a formal cost comparison prior to contracting out work performed by NAF employees. AFGE has urged the department to administratively prevent direct conversions of NAF employees; failure to do so would require AFGE to seek a legislative remedy. 2. INSIST THAT INHERENTLY GOVERNMENTAL / CLOSELY ASSOCIATED WITH INHERENTLY GOVERNMENTAL / CRITICAL WORK BE PERFORMED BY DOD EMPLOYEES: Ensure that functions that are inherently governmental, closely related to inherently governmental functions, or critical are performed by DoD employees— and insource such work if it has been wrongly contracted out. The FY09 Defense Authorization Act requires OMB to develop a single governmentwide definition of “inherently governmental”. It is crucial that OMB’s proposed redefinition correct longstanding problems that have resulted in the outsourcing of functions that should have been reserved for federal employee performance, including evaluation of contractors’ proposals and performance, preparation of budgets, competition or are poorly performed; and the department must use the least costly form of personnel consistent with military requirements and consider the advantages of shifting work between its civilian, military, and contractor personnel. 75 development of policies, and interpretation of regulations. A 2009 GAO report 29 indicated that: DEFENSE ACQUISITIONS: Further Actions Needed to Address Weaknesses in DoD’s Management of Professional and Management Support Contracts (GAO-10-39) November 2009. 29 According to GAO, “DoD and the military departments are to assess a number of risks when developing an acquisition strategy for services, but DoD policy does not require an assessment of risks associated with contractors closely supporting inherently governmental functions at two key decision points—when approving acquisition strategies or issuing task orders. All 7 of the proposed acquisitions for professional, administrative, and management services and more than 75 percent of the 64 related task orders we reviewed required the contractor to provide services that closely supported inherently governmental functions. A DoD instruction issued after the approval of the acquisition strategies we reviewed requires that consideration be given to using civilian personnel rather than contractors, specifically when the activities to be performed cannot be separated or distinguished from inherently governmental functions. However, once the decision to rely on contractors is made, DoD personnel are not required to identify and document risks posed when contractors are given responsibility for closely supporting inherently governmental functions or take steps to mitigate those risks. “The acquisition strategies and supporting documentation we reviewed included broad descriptions of the services to be provided over the course of the acquisition, which included acquisition, contracting, and policy development support services. Each of these services are identified in the FAR as examples of those that closely support inherently governmental functions…” “Although officials stated that documentation explaining the need to contract for these services in the past was often unavailable, contracting officers and program officials indicated that reductions in government personnel have led to the increased use of contractors to perform activities government personnel would have performed in the past… “According to DoD officials, personnel are not required to consider and document the risks associated with contractors closely supporting inherently governmental functions when awarding contracts or issuing task orders. Forty-nine of the 64 task orders we reviewed included services that, as described in the FAR, are examples of activities that closely support inherently governmental functions, including support for developing statements of work or contract documents; or budget preparation. Program managers and contracting officers we spoke with acknowledged that contractors closely supported inherently government functions, but none of the contract files identified them as such or indicated if any steps were taken to address related risks…” “The associated contract files for each of the task orders we reviewed included provisions specifically prohibiting the contractor from performing inherently governmental functions. Program managers and contracting officers informed us that they were aware of the importance of preventing contractors from performing inherently governmental functions as required by the FAR. These officials acknowledged that without contractor support, fulfilling mission requirements or conducting certain program activities could not continue and some recognized that the close working relationships that develop between government and contractor support personnel increase the risks of contractors performing inherently governmental functions. To prevent contractors from performing such tasks, program and contracting officials indicated that they reviewed task order requirements to ensure that they are within the scope of the acquisition and do not require contractors to perform tasks that should be left only to government employees. Officials further stated that when developing performance work statements they emphasize that the contractors’ role is to provide assistance to the government rather than make program decisions. 76 a. Closely associated with inherently governmental functions are regularly contracted out by DoD without any consideration of risk. b. DoD acquisition personnel either don’t follow requirements to consider risk in the context of contracting out closely associated with inherently governmental functions or don’t even know the requirements exist. c. These closely associated with inherently governmental functions used to be performed by DoD employees. d. These closely associated with inherently governmental functions are not contracted out by DoD through OMB Circular A-76 privatization studies. e. There is little if any consideration, whether for reasons of cost or risk, of continuing to use DoD employees prior to the closely associated with inherently governmental functions being contracted or after they have already been contracted out. It is believed that OMB will issue its proposed new definition of inherently governmental in early 2011.30 “Program and contract personnel that we interviewed who were responsible for overseeing the work done under the task orders were unaware, however, of the FAR requirement to provide greater scrutiny and an enhanced degree of management oversight and surveillance when contracting for services that closely support inherently governmental functions. Additionally, federal internal control standards require that agencies conduct an assessment of risks, such as risks that result from heavy reliance on contractors to perform critical agency operations. According to DoD officials, however, no specific guidance has been provided by DoD that defines how contracting and program officials should conduct such enhanced oversight. DPAP officials noted that additional information on how to oversee contractors that closely support inherently governmental functions would be useful to the military departments, but acknowledged that they have no ongoing efforts do so…” 30 Here are the points which AFGE has conveyed, repeatedly, to the Obama Administration with respect to its redefinition of the inherently governmental term: a. The new definition should reject targeting “commercial” functions for outsourcing. b. The new definition should reduce confusion and uncertainty by expanding the very narrow definition of inherently governmental currently in use. c. The new definition should be clear enough to withstand the politics and corruption that have led to so much contracting out of functions that should be performed by DoD employees; it should reflect the real-life lessons we have all learned over the last sixteen years. d. The new definition should take into account the realities of the federal workplace in which managers lack the time and expertise to adequately review recommendations and exercises of discretion by contractors. 77 3. THROUGH INSOURCING, REQUIRE DOD TO GIVE DOD EMPLOYEES OPPORTUNITIES TO PERFORM NEW AND OUTSOURCED WORK: Consistent with the law, DoD should continue to insource work that is closely associated with inherently governmental functions as well as functions that were contracted out without competition or are being poorly performed. Contractors initially claimed that the Efficiency Initiative announcement meant that insourcing had failed, and their loyal propagandists in the trade press could not wait to spit on insourcing’s grave. Actually, DoD officials believed that insourcing worked but that the savings generated by using civilian employees in lieu of contractors could not possibly offset the skyrocketing costs of the department’s ruinously expensive contractors. In fact, according to DoD officials, 17,000 positions were added to the department’s civilian workforce through insourcing during FY10, thus achieving substantial savings for taxpayers and reducing the extent to which private interests are making public decisions for the department. The most serious threat to the department’s use of insourcing to rebalance the civilian and contractor workforces and save money for taxpayers are threats to arbitrarily cap or even reduce the civilian workforce, which would leave DoD with no alternative but to rely on contractors—regardless of cost or risk. Title 10 prohibits the application of such caps and reductions without any workforce planning. AFGE members are, as always, prepared to make sacrifices in order to reduce the burden on taxpayers of running the department—if contractors are finally required to make their fair share of sacrifices. However, AFGE will insist that the civilian workforce be managed consistent with all relevant laws (including the promotion of insourcing and the prohibition against direct conversions). Working under the close supervision of the Professional Services Council (PSC), a major contractor lobbying group, Senator Scott Brown (R-MA) is leading the effort to gut DoD’s promising insourcing effort. After an October 8, 2010, letter from PSC, Senator Brown circulated an amendment to the FY11 National Defense Authorization Act that would have made it easier for contractors to draft regulations, prepare budgets, and e. The new definition should include strong mechanisms for transparency (i.e., determining which contracts include functions that are inappropriate for contractor performance) and enforcement (i.e., insourcing functions which should be performed by federal employees), which are arguably even more important than how inherently governmental is defined. f. The new definition should be issued and enforced with sufficient force and accountability to ensure actual compliance—no small concern given the systematic defiance (and ignorance) of existing guidance against contracting out functions that should be reserved for federal employee performance. g. The new definition should address the many human capital issues related to protecting functions that should be reserved for federal employee performance. 78 oversee other contractors; and made it far more difficult and complicated to insource than it is to outsource. Fortunately, the Senate did not consider this amendment. However, there is no doubt that contractors will use the provisions in this amendment to fight against insourcing. Curiously, Senator Brown went to work for the contractors after an exchange with DoD Deputy Secretary of Defense William Lynn at an Armed Services Committee hearing, on September 28, 2010, that should have made him an insourcing supporter. Senator Brown asked this loaded question: “When work done by private contractors is absorbed by DOD personnel and labeled inherently governmental, does it end up costing the taxpayers more money because the federal employees' cost significantly more when you take into account their retirement and health benefits? Is that an accurate statement? Does it cost more?” The Deputy Secretary rephrased and then answered the question: “Do -- you're asking do federal employees cost more than private?...As a general statement, I don't think that's accurate, no.” 4. COMPILE CONTRACTOR INVENTORIES: Consistent with the law, DoD should compile inventories of their service contracts so that we know, among other things, how much contractors cost, how many employees are performing the contract, and how well they are performing. Unlike DoD employees, contractors have been shrouded in darkness. There is little that DoD does not know about its civil servants. However, DoD historically has not bothered to track its contractors. Managers don’t know how much contractors cost, whether they are performing inherently governmental functions, or how many employees are paid by the contract. Fortunately, Congress has required that DoD develop inventories of their service contracts, thanks to a requirement that was imposed on DoD through a provision in the FY08 Defense Authorization Bill. These inventories can be used to reduce costs by identifying contracts that don’t benefit taxpayers or identify functions that ought to be insourced because contractors are performing functions that should be reserved for federal employee performance. Unfortunately, not all parts of DoD have been as aggressive as the Department of the Army in complying with the inventory requirement. Contractors, knowing that increased visibility will inevitably mean increased accountability, have fought back against efforts to make their work transparent. GAO recently reported in 11-92, “At this point, DoD has been working to implement the inventory requirements since the legislation was passed in 2008. With regard to reviewing functions and activities reviewed in the inventories, the department’s efforts are less mature. Given this early state of implementation, the inventories and associated review processes are being used to varying degrees by the military departments to help inform workforce decisions such as insourcing. Overall, the Army has used the inventories to greater degree than the other military departments.” AFGE will continue to work with the Congress to ensure DoD’s comprehensive compliance. 79 5. EXTEND THE SUSPENSION AGAINST DOD STARTING UP ANY NEW OMB CIRCULAR A-76 STUDIES: Extend the suspension on the use of the OMB Circular A-76 privatization process until much-needed reforms have been implemented and functions performed by contractors, including commercial functions, are being targeted for insourcing. The FY09 and FY10 Financial Services Appropriations Bills have included language that would prevent new A-76 reviews from being launched by any federal agency. Suspensions on new A-76 studies in DoD were included in the FY10 Defense Authorization and Appropriations Bills. Until the implementation of the reforms listed below, AFGE believes that this temporary suspension on new A-76 reviews should be continued: a) The establishment of a reliable system to track costs and savings from the A76 process that has been implemented, tested, and determined to be accurate and reliable, over the long-term as well as the short-term. b) Consistent with the law, the establishment of contractor inventories so that agencies can track specific contracts as well as contracts generally. c) Consistent with the law, the development and implementation of plans to actively insource new and outsourced work, particularly functions that are closely associated with inherently governmental functions, that were contracted out without competition, and are being poorly performed. d) Consistent with the law, the enforcement of government-wide prohibitions against direct conversions. e) The development and implementation of a formal internal reengineering process that could be used instead of the A-76 process. f) Revision of the rules governing the A-76 process to make it more consistent with agencies’ missions, more accountable to taxpayers, and more fair to federal employees. 1) Increase the minimum cost differential to finally take into account the often significant costs of conducting A-76 studies, including preliminary planning costs, consultants costs, costs of federal employees diverted from their actual jobs to work on privatization studies, transition costs, post-competition review costs, and proportional costs for agencies’ privatization bureaucracies (both in-house and out-house).31 31 It is accepted in the A-76 circular that it makes little sense to shift work back and forth without at least a guesstimate that savings will be more than negligible. “The conversion differential precludes conversions based on marginal estimated savings…” Unfortunately, the conversion differential--the lesser of 10% of agency labor costs or $10 M, which is added to the non-incumbent provider—captures only “non- 80 2) Double the minimum cost differential for studies that last longer than 24 months—from the beginning of preliminary planning until the award decision.32 3) Eliminate the arbitrary 12% overhead charge on in-house bids.33 Fighting Utilities Privatization As part of the Clinton Administration’s wholesale outsourcing effort, DoD started a campaign to privatize utilities (electric, gas, water and wastewater, and thermal steam). The ostensible rationale is that the department is unable to secure the necessary funding in the year-to-year appropriations process to keep the utilities repaired and maintained. Therefore, the department must sell off the utilities to contractors who will be responsible for making the necessary upgrades—paying for them with DoD’s dollars, of course. DoD has approximately 1,500 utilities available for privatization, although some are exempt for economic or security reasons. Of course, paying contractors to repair and maintain the facilities and then to provide the same services as before inevitably significantly increases costs to the department. As GAO noted, “(t)he utility privatization program generally increases military utility costs well above historical levels because the program leverages private sector capital to achieve utility system improvements. To pay for these improvements over time, quantifiable costs related to a conversion, such as disruption and decreased productivity”. See OMB Circular A-76, Attachment B. 32 The biggest selling point for the revised A-76 circular was that standard privatization studies were supposed to last no longer than a year. Of course, OMB insists that a standard competition has not started until it has been formally announced, even though preliminary planning, the work conducted on an A-76 study before formal announcement, can last several years. Even excluding preliminary planning A76 studies now routinely take longer 12 months. In fact, OMB reports that the average A-76 study takes 13.6 months to complete. COMPETITIVE SOURCING: Report on Competitive Sourcing Results Fiscal Year 2007, May 2008, p. 9. Worse, the length is gradually increasing over time. In other words, the more the A-76 process is being used, the longer it is taking. The A-76 circular is based on standard competitions lasting no longer than a year except in unusual circumstances. Clearly, the conversion differential should be increased to take into account the growing length of A-76 studies. 33 All in-house bids are slapped with an overhead charge, which works out to 12% of personnel costs. This significant impediment to in-house bids should be eliminated. As the Department of Defense Inspector General reported about the now infamous A-76 privatization review at the Defense Finance and Accounting Service, “We do not agree that the standard factor for overhead costs is a fair estimate for calculating overhead. We believe that DoD must develop a supportable rate or alternative methodologies that permit activities to compute reasonable overhead cost estimates.” “Public-Private Competition for the Defense Finance and Accounting Service Military Retired and Annuitant Pay Functions”, Report D-2003056 (March 2003). Neither reform has been undertaken. Consequently, most if not all in-house bids are unfairly biased against federal employees. 81 DOD’s funding obligations will likely increase, not decrease, by hundreds of millions of dollars…”34 The statute that establishes the rules for privatization of utilities nominally requires DoD to first conduct a quick-and-dirty public-private cost comparison. 35 However, as GAO reported, DoD cost estimates are biased towards privatization; if done properly in most instances, the utilities would have been retained in-house.36 This effort is particularly difficult to defend when utilities targeted for privatization are not in disrepair or would merely require modest infusions of funding to be satisfactorily refurbished. It wasn’t until last year that Congress seriously challenged the utilities privatization program. Working closely with AFGE’s Local, Representative Maurice Hinchey (D-NY) secured inclusion in the FY10 Defense Appropriations Bill of a provision that would prevent the privatization of utilities at the United States Military Academy, West Point.37 It is hoped that this hard-fought victory will inspire similar efforts, particularly when the utilities being considered for privatization, as in the case of West Point, are not in need of significant repairs. Preserving DoD’s National Security-Critical Industrial Facilities (Arsenals and Depots) a. Arsenals, which manufacture ordnance and equipment, including howitzers and mounts: The Rock Island Arsenal-Joint Manufacturing and Technical Center (RIA-JMTC) continues to contract out work performed by DoD employees—inspectors, planner/programmers, method personnel and machinists—without first conducting cost comparisons required by law to determine if contractor performance actually promotes the interests of taxpayers.38 34 Government Accountability Office, DEFENSE INFRASTRUCTURE: Management Issues Requiring Attention in Utility Privatization (GAO-05-433), May 2005. 35 10 U.S.C. 2688 GAO, Ibid. “We reviewed seven utility privatization project analyses and identified inaccuracies, unsupported cost estimates, and noncompliance with guidance for performing the analyses. The cost estimates in the analyses we reviewed generally favored the privatization option by understating longterm privatization costs or overstating long-term government ownership costs. In five of the seven analyses, making adjustments to correct problems we identified would change the outcomes to show that government ownership, rather than privatization, would be less costly in the long term. In the remaining two cases, the analyses were not reliable because they did not reflect the actual utility system improvements to be performed by the contractor.” 36 37 P.L. 111-118, Section 8122. 38 AFGE has two compelling legal arguments: 82 RIA-JMTC managers have refused to respond to correspondence from AFGE’s Local that calls them to account for their violations of law. Further, senior officials in the Department of the Army have refused to meet with AFGE’s National President to discuss the union’s concerns. In November 2010, AFGE learned that the Army has ordered improvements on a howitzer weapons system that was previously produced at RIA-JMTC. The arsenal, however, may be bypassed for its part of the work as a result of decisions by the Army Office for Acquisition. The AFGE locals in Rock Island have sought clarification on RIAJMTC’s ability to bid and were told, through their congressional representatives, that RIA-JMTC could compete for the manufacturing part of the work. AFGE is seeking information from Congress and the Army on what the rules for competition will be. b. Depots, which are responsible for repairing and maintaining ships, tanks, and planes: a. Direct Conversions: RIA-JMTC's use of contractor employees to perform work previously done by DoD employees without conducting a public-private cost comparison under OMB Circular A-76 is a direct conversion in violation of OMB Circular A-76, the FY06 Defense Authorization Act, and the FY10 Consolidated Appropriations Act. These rules apply even though no DoD employees are losing their jobs because of this action. The A-76 circular does not contain a "no harm, no foul" exception, and both statutory provisions refer to the function being performed, not the DoD employee positions performing those functions. The fact that a function, or a portion of a function, previously performed by DoD employees is now performed by contractor employees is a violation of the letter and intent of these provisions. b. Illegal Personal Services Contract: The purpose of the civil service system is to hire federal employees based on merit instead of political connections, provide a preference for federal jobs to military veterans, and to provide government with stability and continuity from one administration to another. Federal agencies are required to hire employees under the civil service system with a few narrow exceptions. When an agency treats contractor employees as federal employees, the agency is doing an illegal endrun around the civil service system. This kind of end run allows an agency to ignore merit principles, veterans preference, and federal pay and health benefit requirements. RIA-JMTC is essentially treating the contractor employees as DoD employees, and HRU is merely providing bodies to fill DoD employee slots. This arrangement results in an illegal personal services contractual relationship between RIA and the HRU employees. Army management claims that this contract is not a personal services contract on its terms. However, under the Federal Acquisition Regulation, a contract can become a personal services contract if certain factors are present. At RIA, the contractor employees work at the same site using the same equipment as DoD employees. The work product of the federal and HRU employees is identical, so that HRU's work cannot be distinguished for purposes of quality assurance. The need for this work has and will last far beyond the one year limit allowed by the regulations, and agency management has to supervise the contractor employees in order to retain control of the function. RIA-JMTC also participated in the hiring process and reviewed the salary and benefits offered to HRU employees before awarding the contract, which is highly unusual for a government contract. 83 The FY09 Defense Authorization Bill included a requirement that DoD commission an independent, quantitative assessment of the organic capability that will be required to provide depot-level maintenance in the post-reset environment, which would then be reviewed by GAO.39 It is expected that the assessment will be released in mid-February 2011. 39 P.L. 110-417, Section 322. STUDY ON FUTURE DEPOT CAPABILITY. (a) Study Required- Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall enter into a contract with an independent research entity that is a notfor-profit entity or a federally-funded research and development center with appropriate expertise in logistics and logistics analytical capability to carry out a study on the capability and efficiency of the depots of the Department of Defense to provide the logistics capabilities and capacity necessary for national defense. (b) Contents of Study- The study carried out under subsection (a) shall-(1) be a quantitative analysis of the post-reset Department of Defense depot capability required to provide life cycle sustainment of military legacy systems and new systems and military equipment; (2) take into consideration direct input from the Secretary of Defense and the logistics and acquisition leadership of the military departments, including materiel support and depot commanders; (3) take into consideration input from regular and reserve components of the Armed Forces, both with respect to requirements for sustainment-level maintenance and the capability and capacity to perform depot-level maintenance and repair; (4) identify and address each type of activity carried out at depots, installation directorates of logistics, regional sustainment-level maintenance sites, reserve component maintenance capability sites, theater equipment support centers, and Army field support brigade capabilities; (5) examine relevant guidance provided and regulations prescribed by the Secretary of Defense and the Secretary of each of the military departments, including with respect to programming and budgeting and the annual budget displays provided to Congress; and (6) examine any relevant applicable laws, including the relevant body of work performed by the Government Accountability Office. (c) Issues to Be Addressed- The study required under subsection (a) shall address each of the following issues with respect to depots and depot capabilities: (1) The life cycle sustainment maintenance strategies and implementation plans of the Department of Defense and the military departments that cover-(A) the role of each type of maintenance activity; 84 (B) business operations; (C) workload projection; (D) outcome-based performance management objectives; (E) the adequacy of information technology systems, including workload management systems; (F) the workforce, including skills required and development; (G) budget and fiscal planning policies; and (H) capital investment strategies, including the implementation of section 2476 of title 10, United States Code. (2) Current and future maintenance environments, including-(A) performance-based logistics; (B) supply chain management; (C) condition-based maintenance; (D) reliability-based maintenance; (E) consolidation and centralization, including-(i) regionalization; (ii) two-level maintenance; and (iii) forward-based depot capacity; (F) public-private partnerships; (G) private-sector depot capability and capacity; and (H) the impact of proprietary technical documentation. (3) The adequate visibility of the maintenance workload of each military department in reports submitted to Congress, including-(A) whether the depot budget lines in current budget displays accurately reflect depot level workloads; (B) the accuracy of core and 50/50 calculations; (C) the usefulness of current reporting requirements to the oversight function of senior military and congressional leaders; and 85 (D) whether current budgetary guidelines provide sufficient financial flexibility during the year of execution to permit the heads of the military departments to make best-value decisions between maintenance activities. (4) Such other information as determined relevant by the entity carrying out the study. (d) Availability of Information- The Secretary of Defense and the Secretaries of each of the military departments shall make available to the entity carrying out the study under subsection (a) all necessary and relevant information to allow the entity to conduct the study in a quantitative and analytical manner. (e) Reports to Committees on Armed Services(1) INTERIM REPORT- The contract that the Secretary enters into under subsection (a) shall provide that not later than one year after the commencement of the study conducted under this section, the chief executive officer of the entity that carries out the study pursuant to the contract shall submit to the Committees on Armed Services of the Senate and House of Representatives an interim report on the study. (2) FINAL REPORT- Such contract shall provide that not later than 22 months after the date on which the Secretary of Defense enters into the contract under subsection (a), the chief executive officer of the entity that carries out the study pursuant to the contract shall submit to the Committees on Armed Services of the Senate and House of Representatives a final report on the study. The report shall include each of the following: (A) A description of the depot maintenance environment, as of the date of the conclusion of the study, and the anticipated future environment, together with the quantitative data used in conducting the assessment of such environments under the study. (B) Recommendations with respect to what would be required to maintain, in a post-reset environment, an efficient and enduring Department of Defense depot capability necessary for national defense. (C) Recommendations with respect to any changes to any applicable law that would be appropriate for a post-reset depot maintenance environment. (D) Recommendations with respect to the methodology of the Department of Defense for determining core logistics requirements, including an assessment of risk. (E) Proposed business rules that would provide incentives for the Secretary of Defense and the Secretaries of the military departments to keep Department of Defense depots efficient and cost effective, including the workload level required for efficiency. (F) A proposed strategy for enabling, requiring, and monitoring the ability of the Department of Defense depots to produce performance-driven outcomes and meet materiel readiness goals with respect to availability, reliability, total ownership cost, and repair cycle time. 86 Protecting Taxpayer Dollars DoD, in coordination with the Defense Contract Audit Agency (DCAA), announced in October 2010 that it has increased the minimum dollar thresholds for contracts that can be referred to DCAA for examination and review prior to being awarded. The new thresholds are a 10-fold increase from the previous amounts: $100 million for cost-type proposals, up from $10 million; and $10 million for fixed-price proposals, up from $700,000. With these new thresholds, the potential for DCAA to conduct proper oversight of Pentagon contracts has decreased dramatically. DoD spending on federal contractors more than doubled between 2002 and 2008 – to $380 billion – meaning DCAA needs to be exercising greater oversight, not less. This pro-contractor change was made without any input from the DoD Inspector General or GAO. Defense leaders claim the price thresholds were increased to better align workload requirements with available resources. However, increasing the thresholds only guarantees that tens of billions of dollars in DoD contracts that fall under the thresholds will be awarded without any examinations to determine if the government is getting the best value for the money. This change does nothing to address one of the biggest complaints from GAO and the IG – that contractors have too much influence over the reviews our Defense auditors are tasked with performing. In fact, raising these thresholds just gives the contractors more free reign to waste taxpayer dollars without any threat of oversight. (G) Comments provided by the Secretary of Defense and the Secretaries of the military departments on the findings and recommendations of the study. (f) Comptroller General Review- Not later than 90 days after the date on which the report under subsection (e)(2) is submitted, the Comptroller General shall review the report and submit to the Committees on Armed Services of the Senate and House of Representatives an assessment of the feasibility of the recommendations and whether the findings are supported by the data and information examined. (g) Definitions- In this section: (1) The term `depot-level maintenance and repair' has the meaning given that term under section 2460 of title 10, United States Code. (2) The term `reset' means actions taken to repair, enhance, or replace military equipment used in support of operations underway as of the date of the enactment of this Act and associated sustainment. (3) The term `military equipment' includes all weapon systems, weapon platforms, vehicles and munitions of the Department of Defense, and the components of such items. 87 Eliminating Discriminatory Requirements for Security Guards In October 2006, the Army issued a physical testing regulation (AR-190-56) for Army Civilian Police and Security Guards, which was subsequently broadened to include all DoD Security Guards. This regulation conflicted with earlier Congressionally-imposed requirements that DoD hire qualified veterans who had service-connected disabilities. Hundreds of security guards throughout DoD could face strong disciplinary measures, including termination, for being unable to comply with this new regulation, including 25 dedicated security guards at Fort Benning. DoD security guards who fail the test may be transferred to other positions, but it is not certain whether the other positions will have comparable salaries or possibilities of advancement. Many of the adversely affected DoD security guards have excellent work evaluations and their performance is not at all affected by their service-connected disabilities. Indeed, these dedicated, highly experienced public servants and first responders have provided unsurpassed protection to our military bases and the public. They played a critical role in protecting us after the 9/11 terrorist attacks because they had the experience and institutional expertise to effectively screen entrance into military bases under heightened security threats. Quite simply, the new physical testing regulation is not relevant to the duties of DoD security guards. Under the new regulation, employees are required every year to prove that they can run 1.5 miles in 17.30 minutes, sprint 330 yards in 81 seconds, do 21 pushups in two minutes and 29 sit-ups in two minutes. If the DOD identifies a future need for a higher level of physical fitness to perform some duties, it can realign current positions to impose the higher standards where they are relevant to successful performance. However, security guards already performing these jobs should be covered by a grandfather clause. They are also entitled to reasonable accommodation for age and disability in the form of alternate testing events, such as bicycling and swimming. Security guards should be provided adequate advance notice of testing dates so they may prepare for the fitness tests after receiving medical clearance. By imposing this unnecessary regulation, DoD is breaking its promise to the veterans with service-connected injuries hired under this special authority. As the federal government’s largest employer of veterans, DoD should act consistently with government-wide veterans’ preference policies, as well as its own ostensible commitment “to providing every disabled veteran who wants to serve our country as a DoD civil servant the opportunity to do so.” 88 Federal Prisons Summary Over the past several years, the Bureau of Prisons (BOP) correctional institutions have become increasingly dangerous places to work. The savage murder of Correctional Officer Jose Rivera on June 20, 2008, by two prison inmates at the United States Penitentiary in Atwater, CA; the brutal stabbing of a correctional officer on November 1, 2009, by a prison inmate at the United States Penitentiary in Lewisburg, PA; and the more than 350 vicious inmate-on-staff assaults that have occurred at various BOP facilities since the murder of Correctional Officer Rivera illustrate that painful reality. In addition, BOP correctional officers and staff have become increasingly demoralized because of: (1) the failure of the White House and Congress during the 2001-2009 time period to provide the necessary financial and programmatic tools to improve the safety and security of BOP prisons, and (2) the adoption by BOP management of unsound operational policies and practices. AFGE strongly urges the Obama administration and the 112th Congress to: 1. Increase federal funding of BOP to remedy the serious correctional officer understaffing and prison inmate overcrowding problems that are plaguing BOP prisons. 2. Direct BOP to adopt needed management policy changes for improving the safety and security of BOP correctional institutions. 3. Support the Federal Prison Industries (FPI) prison inmate work program. 4. Continue the existing prohibition against the use of federal funding for publicprivate competition under OMB Circular A-76 for work performed by federal employees of BOP and FPI. 5. Prevent BOP from meeting additional bed space needs by incarcerating prison inmates in private prisons. 6. Oppose any effort to statutorily redefine the term “law enforcement officer” for pay and retirement purposes to exclude BOP prison staff. 7. Exempt federal law enforcement officers, including BOP correctional officers and staff, who separate from federal government service after age 50 from the present law’s 10% additional tax penalty for early withdrawals from the Thrift Savings Plan (the third component of the Federal Employees Retirement System or FERS). 89 Discussion 1. Increase federal funding of BOP to remedy the serious correctional officer understaffing and prison inmate overcrowding problems that are plaguing BOP prisons. More than 210,000 prison inmates are confined in the 115 BOP correctional institutions today, up from 25,000 in 1980, 58,000 in 1990, and 145,000 in 2000. By the end of 2011, it is expected there will be 215,000 inmates incarcerated in BOP institutions nationwide. This explosion in the federal prison inmate population is the direct result of Congress approving stricter anti-drug enforcement laws involving mandatory minimum sentences in the 1980s, as documented in the History of Mandatory Minimums, a study produced by the Families Against Mandatory Minimums Foundation (FAMM). The Comprehensive Crime Control Act of 1984 created a mandatory 5-year sentence for using or carrying a gun during a crime of violence or a drug crime (on top of the sentence for the violence itself), and a mandatory 15-year sentence for simple possession of a firearm by a person with three previous state or federal convictions for burglary or robbery. The 1986 Anti-Drug Abuse Act established the bulk of drug-related mandatory minimums, including the five- and 10-year mandatory minimums for drug distribution or importation, tied to the quantity of any “mixture or substance” containing a “detectable amount” of the prohibited drugs most frequently used today. The Omnibus Anti-Drug Abuse Act of 1988 created more mandatory minimums that were targeted at different drug offences. At one end of the drug distribution chain, Congress created a mandatory minimum of five years for simple possession of more than five grams of “crack” cocaine. (Simple possession of any amount of other drugs – including powder cocaine and heroin – remained a misdemeanor with a mandatory 15-day sentence required only for a second offense.) At the other end, Congress doubled the existing 10-year mandatory minimum for anyone who engages in a continuing criminal enterprise, requiring a minimum 20-year sentence in such cases. The number of federal correctional officers who work in BOP prisons, however, is failing to keep pace with this tremendous growth in the prison inmate population. By the end of FY 2010, the BOP system was staffed at an 89% level (35,839 of 40,279 authorized positions were filled), as contrasted with the 95% staffing percentage levels in the mid1990s. This 89% staffing level is below the 90% staffing level that BOP believes to be the minimum staffing level for maintaining the safety and security of BOP prisons. In addition, the current BOP inmate-to-staff ratio is 4.9 inmates to 1 staff member, as contrasted with the 1997 inmate-to-staff ratio of 3.7 to 1. 90 At the same time, prison inmate overcrowding is an increasing problem at BOP institutions despite the activation of new prisons over the past few years. The BOP prison system today is overcrowded today by about 37%, up from 31.7% as of January 1, 2000. These serious correctional officer understaffing and prison inmate overcrowding problems are resulting in significant increases in prison inmate assaults against correctional officers and staff. Illustrations of this painful reality include: The savage murder of Correctional Officer Jose Rivera on June 20, 2008, by two prison inmates at the United States Penitentiary in Atwater, CA. The brutal stabbing of a correctional officer on November 1, 2009, by a prison inmate at the United States Penitentiary in Lewisburg, PA. The more than 350 vicious inmate-on-staff assaults that have occurred at various BOP facilities since the murder of Correctional Officer Rivera 19 months ago. AFGE has long been concerned about the safety and security of the correctional officers and staff who work at BOP institutions. But the significant increase in prison inmate assaults against correctional officers and staff has made it clear that the BOP correctional officer understaffing and prison inmate overcrowding problems must be solved. Therefore, AFGE strongly urges the Obama administration and the 112 th Congress to: Increase federal funding of the BOP Salaries and Expenses account so BOP can hire additional correctional staff to return to the 95% staffing percentage levels of the mid-1990s. Increase federal funding of BOP Buildings and Facilities account so BOP can build new correctional institutions and renovate existing ones to reduce inmate overcrowding to at least the 31.7% level of the late-1990s. 2. Direct BOP to adopt needed management policy changes for improving the safety and security of BOP prisons. A few days after the June 20, 2008, stabbing murder of Correctional Officer Jose Rivera at USP Atwater, John Gage, AFGE National President, and Bryan Lowry, President of the AFGE National Council of Prison Locals, met with BOP Director Harley Lappin to strongly urge that BOP adopt various policy changes for improving the safety and security of BOP institutions. Among other changes, they urged that: (a) High security penitentiaries place two correctional officers in each housing unit plus three or four additional officers to function as “rovers” that provide assistance to the housing unit staff, particularly during the evening watch shift (3:00 p.m. to 11:00 p.m.), and medium and low security institutions place at least one correctional officer in each housing unit on all shifts. 91 High security penitentiaries currently assign only one correctional officer to each housing unit. This unsound correctional practice is particularly dangerous during the evening watch shift when only one officer is available to perform the 4:00 p.m. inmate count and the 11:00 p.m. inmate lockup. (Correctional Officer Jose Rivera was murdered while performing the 4:00 p.m. inmate count alone.) Medium and low security institutions since 2005 are no longer required to assign one correctional officer in each housing unit. This policy change has resulted in an unsound correctional practice being implemented in which only one officer is assigned to supervise two – and in some cases three – housing units during the various shifts. This practice leaves housing units unsupervised for long periods of time, thereby providing violent inmates the time to make homemade weapons, to organize and plan gang activity, to carry out assaults on other inmates, and to move contraband undetected throughout the institution. On July 15, 2008, BOP issued a directive that authorized two additional officers per high security penitentiary for evening watch (daily) and for day watch on the weekends and federal holidays. The officers working these posts are intended to function as “rovers” to provide assistance to housing unit staff. (The decision was to be made locally, at each facility, regarding how best to staff these positions, that is, whether the sick and annual roster can be used, overtime authorized, or whether new staff must be hired.) The July 15, 2008, directive was silent with regard to medium and low security institutions. AFGE believes the July 15, 2008, BOP directive is totally inadequate. The safety of correctional officers and prison inmates requires, at the very least, two correctional officers in each housing unit on the evening watch shift in high security penitentiaries, and at least one officer per housing unit on all shifts in medium and low security institutions. AFGE strongly urges the Obama administration and the 112th Congress to direct BOP to reinstitute the staffing practice of the 1990s: authorizing two correctional officers per housing unit, plus three or four additional officers to function as “rovers” that provide assistance to the housing unit staff. This staffing practice was standard until a few years ago when BOP management instituted the so-called Mission Critical policy effectively a “staff reduction” policy under which only positions deemed absolutely critical to the BOP mission were filled. (b) All correctional officers be issued protective vests that are stab-proof and lightweight, and can be worn comfortably under a uniform. In its July 15, 2008, directive, BOP announced that it will begin making protective vests available to staff – first at high-security penitentiaries, and then at all institutions. However, BOP has adopted a somewhat overbroad implementation policy with regard to these protective vests. If a staff member chooses to wear a protective vest, he or she must wear the vest at all times and in all locations – even when it is obviously 92 unnecessary. For example, some wardens are ordering correctional staff to wear their protective vest to annual refresher training at facilities that are a half mile away from the secure prison facility. In addition, the failure to wear the voluntarily selected vest at all times and in all locations may be cause for a disciplinary action. This unreasonable policy is resulting in correctional staff returning their vests and not wearing them in obviously dangerous locations, such as a housing unit, special housing unit, or compound officer post. AFGE strongly urges the Obama administration and the 112th Congress to direct BOP to continue making protective vests available to correctional staff but to adopt a more reasonable implementation policy. (c) Correctional officers working in housing units, compound posts, and high security areas of BOP prisons be equipped with and trained in the use of non-lethal weaponry, such as batons, pepper spray, and/or TASER guns. Training should include the appropriate use of such non-lethal weaponry so they are not used as a “first strike” response before other protective tactics are considered or attempted. Unfortunately, BOP opposed – and continues to oppose - providing correctional officers with batons, pepper spray, and/or TASER guns. BOP argues that it would send the wrong message to prison inmates, namely that such non-lethal weaponry is necessary because conditions at BOP institutions have significantly worsened. But AFGE believes Correctional Officer Rivera’s brutal murder and the increasing number of inmate assaults on officers are sending a strong message to BOP management: Conditions at penitentiaries and other institutions have worsened. They are more violent than a few years ago because of serious correctional officer understaffing and prison inmate overcrowding – and because correctional officers are being forced to control more aggressively dangerous offenders, including more gangaffiliated inmates. AFGE strongly urges the Obama administration and the 112th Congress to direct BOP to institute a new non-lethal weaponry policy under which correctional officers in potentially dangerous situations are provided batons, pepper spray and/or TASER guns. Such non-lethal weapons are vitally necessary to help prevent further serious inmateon-officer assaults. 3. Support the Federal Prison Industries (FPI) prison inmate work program. The increasingly violent and dangerous environment in which BOP correctional officers and staff work is the primary reason why AFGE strongly supports the FPI prison inmate work program. The FPI prison inmate work program is an important management tool that federal correctional officers and staff use to deal with the huge increase in the BOP prison inmate population. It helps keep about 18,972 prison inmates – or about 16% of the 93 eligible inmate population – productively occupied in labor-intensive activities, thereby reducing inmate idleness and the violence associated with that idleness. It also provides strong incentives to encourage good inmate behavior, as those who want to work in FPI factories must maintain a record of good behavior and must have completed high school or be making steady progress toward a General Education Degree (GED). In addition, the FPI prison inmate work program is an important rehabilitation tool that provides federal inmates an opportunity to develop job skills and values that will allow them to reenter – and remain in – our communities as productive, law-abiding citizens. The Post-Release Employment Project (PREP), a multi-year study of the FPI prison inmate work program carried out and reported upon in 1996 by William Saylor and Gerald Gaes, found that the FPI prison inmate work program had a strongly positive effect on post-release employment and recidivism. Specifically, the study results demonstrated that: In the short run (i.e., one year after release from a BOP institution), federal prison inmates who had participated in the FPI work program (and related vocational training programs) were: (1) 35% less likely to recidivate than those who had not participated, and (2) 14% more likely to be employed than those who had not participated. In the long run (i.e., up to 12 years after release from a BOP institution), federal prison inmates who participated in the FPI work program were 24% less likely to recidivate than those who had not participated in the FPI work program. (PREP: Training Inmates Through Industrial Work Participation, and Vocational and Apprenticeship Instruction, by William Saylor and Gerald Gaes, Office of Research and Evaluation, Federal Bureau of Prisons, September 24, 1996.) Unfortunately, over the past nine years the FPI prison inmate work program has experienced a significant decline in the percentage of eligible BOP inmates employed as a result of limitations imposed by Congress and the FPI Board of Directors on FPI’s mandatory source authority relating to Department of Defense and federal civilian agencies’ purchases from FPI. While the FPI program employed 25% of the eligible BOP inmate population in FY 2000, it is currently employing only 16% of that population. Indeed, 29,650 prison inmates would be employed now – not 18,972 – if the FPI program were currently employing 25% of the eligible BOP inmate population. To make matters worse, Section 827 in the National Defense Authorization Act for FY 2008 (P.L. 110-181) created another substantial impediment to the FPI program’s ability to keep BOP inmates productively occupied in labor-intensive work activities. Specifically, Section 827 reduced the applicability of the FPI mandatory source authority with regard to Department of Defense (DoD) purchases of FPI-made products. While the FPI Board of Directors in 2003 administratively ended the application of mandatory source authority for those products where FPI’s share of the Federal market exceeded 20%, Section 827 ended the application of the mandatory source authority with regard to DoD purchases of FPI-made products for those products where FPI’s share of the 94 DoD market is only 5%. Initial analyses of the effect of this significant reduction from 20% to 5% estimated that it will result in a potential loss of up to $241 million in FPI sales revenues and 6,500 FPI prison inmate jobs. An early indicator of this reduction’s adverse effect on FPI was the July 15, 2009, announcement by Paul Laird, the FPI Chief Operating Officer, that FPI was closing factory operations at 14 BOP prisons: USP Coleman I &II (Florida), FCI Victorville II (California), USP Florence (Colorado), FCI Talladega (Alabama), FCI Big Spring (Texas), FCI Williamsburg (South Carolina), FCI Estill (South Carolina), FCI Sandstone (Minnesota), FCI Fairton (New Jersey), FCI Otisville (New York), FCI Marianna (Florida), FCI Phoenix (Arizona), and FCC Allenwood (Pennsylvania). In addition to these closings, FPI announced that it was also downsizing operations at four other BOP prisons: FCC Lompoc (California), FPC Alderson (West Virginia), FCC Butner (North Carolina), and USP Leavenworth (Kansas). According to COO Laird, “these actions were necessary to reduce our excess production capacity and staffing to a level consistent with the current and forecasted business activity.” The latest indicator of this reduction’s adverse effect on FPI is the July 13, 2010, “Memorandum to All UNICOR Staff” by FPI Chief Operating Officer Laird announcing the closing of FPI factories at FCC Lompoc (California), FCI Herlong (California), FCI Three Rivers (Texas), FCI Oxford (Wisconsin), FCI Morgantown (West Virginia), FPC Alderson (West Virginia), FCC Butner (North Carolina), FCI Elkton (Ohio), and FCI Fort Dix (New Jersey). Factories at FCI Bennettsville (South Carolina), FCI McKean (Pennsylvania), and FCC Victorville (California) are being downsized. According to COO Laird, these actions were necessary because “the continued impact of adverse legislation and a struggling economy have contributed to two consecutive years of negative earnings resulting in a substantial reduction of our cash. Clearly, [these new] cost control actions must be taken to bring production capacity and expenses in line with our projected level of business.” 4. Continue the existing prohibition against the use of federal funding for public-private competition under OMB Circular A-76 for work performed by federal employees of BOP and FPI. This final Consolidated Appropriations Act, FY 2010 (P.L. 111-117), which contained the FY 2010 Commerce-Justice-Science (CJS) appropriations bill, includes a general provision - Section 212 - to prohibit the use of FY 2010 funding for a public-private competition under OMB Circular A-76 for work performed by federal employees of the BOP and FPI. Here is the exact language: “Sec. 212. None of the funds appropriated by this Act may be used to plan for, begin, continue, finish, process, or approve a public-private competition under the Office of Management and Budget Circular A-76 or any successor administrative regulation, 95 directive, or policy for work performed by employees of the Bureau of Prisons or of Federal Prison Industries, Incorporated.” AFGE strongly urges the Obama administration and the 112th Congress to include the Section 212 language in the FY 2011 and FY 2012 CJS appropriations bills because: (a) Competing these BOP and FPI employee positions would not promote the best interests or efficiency of the federal government with regard to ensuring the safety and security of federal BOP prisons. Federal correctional officers and other federal employees who work for BOP and FPI are performing at superior levels. It therefore would be ill-advised to compete their positions merely to meet arbitrary numerical quotas. (b) Various studies comparing the costs of federally operated BOP prisons with those of privately operated prisons have concluded – using OMB Circular A-76 cost methodology – that the federally operated BOP prisons are more cost effective than their private counterparts. For example, a study comparing the contract costs of services provided by Wackenhut Corrections Corporation (now The Geo Group) at the Taft Correctional Institution in California with the cost of services provided in-house by federal employees at three comparable BOP prisons (Forrest City, AR; Yazoo City, MS; and Elkton, OH) found that “the expected cost of the current Wackenhut contract exceeds the expected cost of operating a Federal facility comparable to Taft….” (Taft Prison Facility: Cost Scenarios, Julianne Nelson, Ph.D, National Institute of Corrections, U.S. Department of Justice.) 5. Prohibit BOP from meeting additional bed space needs by incarcerating federal prison inmates in private prisons. In recent years, the federal government and some state and local governments have experimented with prison privatization as a way to solve the overcrowding of our nation’s prisons – a crisis precipitated by increased incarceration rates and politicians’ reluctance to provide more prison funding. But results of these experiments have demonstrated little evidence that prison privatization is a cost-effective or high-quality alternative to government-run prisons. Private Prisons Are Not More Cost Effective Proponents of prison privatization claim that private contractors can operate prisons less expensively than federal and state correctional agencies. Promises of 20 percent savings are commonly offered. However, existing research fails to make a conclusive case that private prisons are substantially more cost effective than public prisons. For example, in 1996, the U.S. General Accounting Office reviewed five studies of prison privatization deemed to have the strongest designs and methods among those 96 published between 1991 and mid-1996. The GAO concluded that “because these studies reported little cost differences and/or mixed results in comparing private and public facilities, we could not conclude whether privatization saved money.” (Private and Public Prisons: Studies Comparing Operational Costs and/or Quality of Service, GGD-96-158 August 16, 1996.) Similarly, in 1998, the U.S. Department of Justice entered into a cooperative agreement with Abt Associates, Inc. to conduct a comparative analysis of the cost effectiveness of private and public sector operations of prisons. The report, which was released in July 1998, concluded that while proponents argue that evidence exists of substantial savings as a result of privatization, “our analysis of the existing data does not support such an optimistic view.” Instead, “our conclusion regarding costs and savings is that…..available data do not provide strong evidence of any general pattern. Drawing conclusions about the inherent [cost-effective] superiority of [private prisons] is premature.” (Private Prisons in the United States: An Assessment of Current Practice, Abt Associates, Inc., July 16, 1998.) Finally, a 2001 study commissioned by the U.S. Department of Justice concluded that “rather than the projected 20 percent savings, the average saving from privatization was only about one percent, and most of that was achieved through lower labor costs.” (Emerging Issues on Privatized Prisons, by James Austin, Ph.D. and Garry Coventry, Ph.D., February 2001.) Private Prisons Do Not Provide Higher Quality, Safer Services Proponents of prison privatization contend that private market pressures will necessarily produce higher quality, safer correctional services. They argue that private prison managers will develop and implement innovative correctional practices to enhance performance. However, emerging evidence suggests these managers are responding to market pressures not by innovating, but by slashing operating costs. In addition to cutting various prisoner programs, they are lowering employee wages, reducing employee benefits, and routinely operating with low, risky staff-to-prisoner ratios. The impact of such reductions on the quality of prison operations has been obvious. Inferior wages and benefits contribute to a “degraded” workforce, with higher levels of turnover producing a less experienced, less trained prison staff. The existence of such under qualified employees, when coupled with insufficient staffing levels, adversely impacts correctional service quality and prison safety. Numerous newspaper accounts have documented alleged abuses, escapes and riots at prisons run by the Correctional Corporation of America (CCA), the nation’s largest private prison company. In the last several years, a significant number of public safety lapses involving CCA have been reported by the media. The record of Wackenhut Corporation (now The Geo Group), the nation’s second largest private prison company, is no better, with numerous lapses reported since 1999. And these private prison problems are not isolated events, confined to a handful of “under performing” prisons. Available evidence suggests the problems are structural 97 and widespread. For example, an industry-wide survey conducted in 1997 by James Austin, a professor at George Washington University, found 49 percent more inmate-onstaff assaults and 65 percent more inmate-on-inmate assaults in medium- and minimum-security private prisons than in medium- and minimum-security government prisons. (referenced in “Bailing Out Private Jails,” by Judith Greene, in The American Prospect, September 10, 2001.) Lacking data, BOP is not able to evaluate whether confining inmates in private prisons is more cost-effective than federal government prisons. Despite the academic studies’ negative results, BOP has continued to expand its efforts to meet additional bed space needs by incarcerating federal prison inmates in private prisons. Over a 10-year period, the costs to confine federal BOP inmates in non-BOP facilities nearly tripled from about $250 million in FY 1996 to about $700 million in FY 2006. To determine the cost-effectiveness of this expanded use of private prisons, Congress directed the U.S. Government Accountability Office (GAO) in the conference report accompanying the FY 2006 Science, State, Justice and Commerce Appropriations Act (P.L. 109-108) to compare the costs of confining federal prison inmates in the low and minimum security facilities of BOP and private contractors. However, GAO determined in its October 2007 report that a methodologically sound cost comparison analysis of BOP and private low and medium security facilities was not feasible because BOP does not gather data from private facilities that are comparable to the data collected on BOP facilities. As a result, the GAO concluded that: “[W]ithout comparable data, BOP is not able to evaluate and justify whether confining inmates in private facilities is more cost-effective than other confinement alternatives such as building new BOP facilities.” (Cost of Prisons: Bureau of Prisons Needs Better Data to Assess Alternatives for Acquiring Low and Minimum Security Facilities, GAO-08-6, October 2007) BOP officials told GAO that there are two reasons why they do not require such data from private contractors. First, federal regulations do not require these data as a means of selecting among competing contractors. Second, BOP believes collecting such data could increase private contract costs. However, BOP officials did not provide evidentiary support to substantiate this concern. BOP Director Harley Lappin gave two somewhat different reasons in disagreeing with GAO’s recommendation that the Attorney General direct the BOP Director to develop a cost-effective way to collect comparable data across BOP and private low and minimum security facilities: (1) “The Bureau does not own or operate facilities to house solely criminal aliens and will not be receiving funding [from Congress] to construct such low security facilities. Accordingly, there is no value in developing data collection methods in an attempt to determine the costs of housing this particular group of inmates in a Bureau facility.” (2) “The Bureau has been able to determine what it actually costs to contract out this particular population to private contractors via open competition. [And so] 98 we do not see the value of requiring existing private contractors to provide specific comparable data to aid in a cost comparison. This requirement would have the potential to increase current contract costs at a time when the Bureau is facing serious budget constraints.” In conclusion, AFGE strongly urges the Obama administration and the 112th Congress to prohibit BOP from meeting additional bed space needs by incarcerating federal prison inmates in private prisons. Prison privatization is not the panacea that its proponents would have us believe. Private prisons are not more cost effective than public prisons, nor do they provide higher quality, safer correctional services. Finally, without comparable data, BOP is not able to evaluate or justify whether confining inmates in private facilities is more cost-effective than building new BOP facilities. 6. Oppose any effort to statutorily redefine the term “law enforcement officer” for pay and retirement purposes to exclude federal prison staff. Under current law, the definition of “law enforcement officer” for pay and retirement purposes includes federal prison support staff, in addition to those individuals who fill federal correctional officer positions. However, in October 2005, the Republican staff of the House and Senate federal workforce subcommittees released a 25-page “Concept Paper for a Federal Law Enforcement Personnel System” that proposed to redefine “law enforcement officer” for pay and retirement purposes to exclude federal prison support staff. AFGE strongly urges the Obama administration and the 112th Congress to oppose any legislative effort to institute such a redefinition. The reason federal prison support staff receive law enforcement officer pay and retirement benefits is because their jobs include performing law enforcement security functions in federal prisons. These men and women, on a daily basis, help supervise and control prison inmates at all security levels inside the walls and fences of federal prisons. They are called upon, on a daily basis, to provide searches of inmates, to search housing areas of federal prisons for contraband, and to escort inmates to local hospitals or other outside facilities. In addition, federal prison support staff – like federal correctional officers – are required to successfully undergo training to perform these law enforcement security operations in federal prisons. These men and women are required to go to law enforcement training in Glynco, GA, and are required to pass firearms training every year. Why do the jobs of federal prison support staff include performing law enforcement security operations at federal prisons? Unlike state or county correctional facilities, federal prisons do not have sufficiently large numbers of correctional officers to deal with security-related issues. Because of this shortage of correctional officers, the federal BOP must train and use prison support staff to help maintain safety and security at federal prisons. 99 7. Exempt federal law enforcement officers, including BOP correctional officers and staff, who separate from government service after age 50 from the present law’s 10% additional tax for early distributions from the Thrift Savings Plan (the third component of the Federal Employees Retirement System or FERS). Under present law, a federal employee who receives a distribution from a qualified retirement plan such as the Thrift Savings Plan (TSP) prior to age 59½ is subject to a 10% early withdrawal tax on that distribution, unless an exception to the tax applies. Among other exceptions, the early withdrawal tax does not apply to TSP distributions made to a federal employee who separates from government service after age 55. Present law also provides that BOP correctional officers and staff, as well as other federal law enforcement officers, who complete 20 years of service in a “hazardous duty” law enforcement position are eligible to retire at age 50. This provision is intended to help the federal government recruit and retain a young, physically strong work force to work in BOP correctional institutions. As a result, BOP correctional officers and staff who retire at 50 years of age/20 years of service cannot – under present law – withdraw their TSP funds without incurring the 10% early withdrawal tax penalty. These retirees must wait until age 55 to withdraw their TSP monies if they want to avoid incurring this penalty. This is grossly unfair to the BOP correctional officers and staff who keep the most dangerous felons behind bars, as well as to the other federal law enforcement officers who patrol our nation’s borders and secure our federal buildings’ safety. Until a few years ago, police and firefighters who worked for State and local governments experienced a similar problem. Those who retired after age 50 but before age 55 were unable to withdraw money from their defined benefit plans without incurring the 10% additional tax penalty. However, section 828 of the Pension Protection Act of 2006 (P.L. 109-280) resolved the problem for these State and local public safety employees. This section amended section 72(t) of the Internal Revenue Code of 1986 (which exempts certain individuals from the 10% early withdrawal penalty) by adding the following new paragraph: “(10) Distributions to qualified public safety employees in governmental plans. (A) In general. - In the case of a distribution to a qualified public safety employee from a governmental plan (within the meaning of section 414 (d)) which is a defined benefit plan, paragraph (2)(A)(v) shall be applied by substituting “age 50” for “age 55”. (B) Qualified public safety employee. - For purposes of this paragraph, the term “qualified public safety employee” means any employee of a State or political subdivision of a State who provides police protection, firefighting services, or emergency medical services for any area within the jurisdiction of such State or political subdivision.” 100 AFGE strongly urges the Obama administration and the 112th Congress to support legislation that would modify the section 72(t)(10) language to benefit those federal law enforcement officers, including federal correctional officers and staff, who want to retire at age 50 and withdraw their TSP monies without incurring the 10% additional tax penalty. This legislation would: Strike the language “which is a defined benefit plan” from subparagraph (A). Thus, federal law enforcement officers who participate in a defined contribution plan like the TSP would also be granted relief from the 10% early withdrawal penalty. Amend subparagraph (B) to include federal law enforcement officers. Subparagraph (B) as now written only applies to state and local police, firefighters, and EMS personnel. Amend subparagraph (B) to include correctional officers and staff who work at BOP prison facilities. Subparagraph (B) as now written only applies to police, firefighters and EMS personnel. 101 EPA MUST PROPERLY ALLOCATE WORKFORCE EPA Must Justify More FTEs40 Through Workload/Workforce Analyses EXECUTIVE SUMMARY EPA Funding Clean air, land and water are no less a national priority than are national defense, an adequate system of interstate highways, and safe and efficient aviation and rail systems. Alarmingly, the American Society of Civil Engineers (“ASCE”) gave America's infrastructure a failing grade of D in its 2009 report. ASCE also identified more than $2.2 trillion in outstanding infrastructure needs. Yet, infrastructure spending in real dollars is about the same now as it was in 1968 when the economy was a third smaller. EPA estimates that the nation must invest $390 billion over the next 20 years to replace existing systems and build new ones to meet increasing demands. State and local governments account for about 75% of infrastructure spending, and most are reeling from budgetary shortfalls.41 EPA Staffing Needs Since EPA’s formation, a comprehensive study has not been completed to analyze the Agency’s mission and the related number and location of employees.42, 43 A complete and thorough workload analysis, followed by a workforce analysis would provide the necessary information to properly determine FTE levels for the Agency and link them to the budget.44,45 In its most recent report, the U.S. Government Accountability Office (“GAO”) reported on the continuing failure of EPA to implement workload and workforce analysis planning46. In addition to urging continued funding of EPA’s mission, 40 An FTE represents 2,080 work hours, the equivalent of one person working full time for 1 year, and includes annual and sick leave, as well as Federal Holidays. 41 June 5, 2006, Brownfields Report by U.S. Conference of Mayors; http://www.usmayors.org/74thAnnualMeeting/brownfields_060506.pdf 42 EPA’s Key Management Challenges for Fiscal Year 2008, U.S. EPA Office of Inspector General Report to Stephen L. Johnson, EPA Administrator, July 2, 2008, Page 4 43 EPA’s Key Management Challenges for Fiscal Year 2009, U.S. EPA Office of Inspector General Report to Lisa P. Jackson, EPA Administrator, April 28, 2009, Page 4 EPA’s Key Management Challenges 2005, U.S. EPA Office of Inspector General Report to Stephen L. Johnson, Acting Administrator, April 25, 2005, Page 15 45 Office of Acquisition Management Can Strengthen Its Organizational Systems, U.S. EPA Office of Inspector General Report No. 2005-P-00006, February 17, 2005, Page 5 44 46 Workforce Planning Report, Interior, EPA, and the Forest Service Should Strengthen Linkages to Their Strategic Plans and Improve Evaluation, U.S. GAO Report (GAO-10-413), March 2010 102 AFGE Council 238 also urges Congress to require EPA to conduct a complete and thorough workload analysis, followed by a workforce analysis.47 This would best be accomplished in the context of the Agency’s five (5) year strategic planning documents, which would provide a more progressive approach to both workload analysis, as well as an analysis of the kind of workforce needed for the future. Ultimately, if properly done, the five-year strategic plan would then also function as a “blueprint” for the requisite knowledge, skills and abilities (“KSAs”) required of EPA staff in order to accomplish its current and future mission of protecting human health and the environment. This information would then help focus the Agency on any staff re-training issues, as well as what KSAs to look for when hiring new staff. A recent report from the U.S. EPA Office of Inspector General (“OIG”) confirmed what GAO and OIG have been reporting on for years now. That is, that “EPA’s policies and procedures do not include a process for determining employment levels based on workload as prescribed by the Office of Management and Budget… EPA does not determine the number of positions needed per mission-critical occupation (MCO) using workforce analysis as required by the Office of Personnel Management (OPM)... because EPA has not developed a workload assessment methodology and has not developed policies and procedures that require identifying and reporting on the number of positions needed per MCO. As a result, EPA cannot demonstrate that it has the right number of resources to accomplish its mission. …and, consequently, offices encountered delays or did not meet mission requirements. … there is no assurance that EPA’s workforce levels are sufficient to meet the workload of the Agency.”48 Brownfields The U.S. Conference of Mayors has been working on the issue of Brownfields since 1993. Cities were asked to estimate the number and acreage of brownfields sites both in 1993 and 2010, subject to each city’s criteria and best available data. In 1993, 67 cities estimated that they had a total of 11,824 brownfield sites consuming 15,228 acres of land; in 2010, 75 cities estimated that they had a total of 29,624 brownfields sites consuming 45,437 acres of land.49 The vast majority of cities (84%) said that they have been successful in redeveloping brownfield sites over the past 17 years. Out of the remaining 16% who said they were unable to redevelop any brownfields, only half of those respondents (8%) actually said they had brownfield properties in their city. Out of the successful cities, 65 were able, since 1993, to redevelop 1,010 sites which 47 OIG Report to Stephen L. Johnson, Acting EPA Administrator, EPA’s Key Management Challenges 2005, April 25, 2005, page 15 48 U.S. EPA Office of Inspector General Audit Report, EPA Needs to Strengthen Internal Controls for Determining Workforce Levels, Report No. 11-P-0031, December 20, 2010 49 Recycling America’s Land, A National Report on Brownfields Redevelopment (1993-2010), The United States Conference of Mayors, November 2010, Volume IX 103 encompassed approximately 7,210 acres with 70 cities reporting that 906 sites are currently being redeveloped, comprising 4,683 acres.50 Climate Change The U.S. Conference of Mayors has also stated that “…scientific evidence and consensus continues to strengthen the idea that climate disruption is an urgent threat to the environmental and economic health of our communities. … more action is needed at the local, state, and federal levels to meet the challenge. There are now 1,044 signatories to – mayors in 50 states, the District of Columbia and Puerto Rico – elected officials who represented approximately 86 million people who have signed on to the U.S. Conference of Mayors Climate Protection Agreement.51 Recommendations AFGE Council 238 urges Congress to review all of EPA’s programmatic needs, planning and current funding levels in light of inflation and the growth in statutory duties and responsibilities, the need for additional FTEs, as well as growing state and municipal needs. Congress should require EPA to add workload and workforce modeling to support its long-term goals. DISCUSSION EPA Funding Levels The 2002 EPA Gap Analysis estimated that the United States must spend between $331 billion and $450 billion by 2019 to upgrade and maintain the nation's existing wastewater infrastructure systems and to build new ones. In January 2008, EPA estimated in the 2004 Clean Watersheds Needs Survey that the documented need for new Clean Water Act infrastructure is $202.5 billion nationwide in capital investments over the next 20 years to bring existing systems into compliance with Federal clean water regulations. In order to implement federally created air programs, states need $1.2 billion, of which the federal government should provide 60 percent, or roughly $720 million. To date, EPA has only provided about $220 million per year, creating what is roughly a $500 million shortfall that hinders states’ ability to effectively administer their air programs. The case for increased Federal investment is compelling. If the nation fails to meet the investment needs of the next 20 years, it risks reversing the public health, environmental, and economic gains of the past three decades. This shortfall in funding, 50 51 Ibid. http://usmayors.org/climateprotection/agreement.htm 104 coupled with the growth in statutory duties and responsibilities, handicaps EPA from successfully achieving its mission. Current State The physical condition of many of our nation's 16,000 wastewater treatment systems is poor, due to a lack of investment in plant equipment and capital improvements over the years. Many systems have reached the end of their useful design lives. Older systems are plagued by chronic overflows during major rain storms and heavy snowmelt and, intentionally or not, are bringing about the discharge of billions of gallons of raw sewage into U.S. surface waters each year. States are hard-pressed to fund their State environmental Agencies. Without increased funding from EPA, human health and the environment will not be protected. Needs are large and unprecedented; in many locations, local and State sources cannot be expected to meet this challenge alone and, because waters are shared across local and state boundaries. The benefits of Federal help will accrue to the entire nation. The nation’s aging infrastructure will eventually constrain economic growth. A key impact of the constant budget shortfalls of the past has been a concurrent reduction in FTEs available to do the work of the Agency, when in fact, FTEs should have been increasing. EPA Staffing Needs EPA continues to “invest” and “disinvest” rather than properly allocating its workforce and ensuring that its staff has the appropriate knowledge, skills and abilities by complying with GAO’s consistent recommendations to update and utilize both workload and workforce analyses. EPA has yet to determine the number of employees it needs to accomplish its mission objectives and how to best allocate its employees among EPA’s strategic goals and geographic locations. The Agency’s efforts to account for the time spent to carry out its various tasks have been hampered by inaccuracies in existing data.52 Compounding the problem is the fact that there is no national suite of performance measures for EPA, and its state, local and tribal partners to follow. In addition, the States’ environmental work is complicated by different levels of legislative and rule-making processes, as well as different budgeting periods. EPA should be viewed as a public service agency that protects human health and the environment, and its success can only be measured by improvements in both human health and the environment. 52 GAO Testimony Before the Subcommittee on VA, HUD, and Independent Agencies, Committee on Appropriations, U.S. Senate HUMAN CAPITAL Observations on EPA’s Efforts to Implement a Workforce Planning Strategy (GAO/T-RCED-00-129; March 23, 2000); Page 8 105 Although the Agency’s work cannot be evaluated in the same manner as one would evaluate a business, the only way for EPA to accomplish its mission is to have sufficient budget resources, and ensure that it has the right people working on the right things, at the right time, with the right KSAs. Therefore, AFGE Council 238 concurs that the only way for the Agency to properly allocate its workforce and ensure that its staff has the appropriate KSAs, is for the Agency to comply with GAO’s consistent recommendations to update and utilize workload and workforce analyses. Based uopn the figures below, it is hard to believe that EPA can successfully carry out its mission to protect human health and the environment, along with all of the increased statutory responsibilities, given the FTEs currently on-board. Fiscal Year EPA Budget (Billions of Dollars) Staffing Level (FTEs) Increase (Decrease) in FTEs from Previous Number of FTEs Per Billions of Dollars in Budget FY 1970 $1.0 4,084 ----------------------- 4,084 FY 1980 $4.7 13,078 8,994 2,783 FY 1990 $5.5 16,318 3,240 2,967 FY 2000 $7.6 18,100 1,782 2,382 FY 2008 $7.5 17,324 (776) 2,310 FY 2009 $7.6 17,252 (72) 2,270 FY 2010 $10.3 17,417 165 1,691 FY 2011 $10.0* 17,571* 154* 1,757* (projected)* 106 Impacts of Improper Allocation of Workforce Because EPA does not have a system in place to assess its human capital requirements which include skills and training needs for current staff, and to allocate resources accordingly, the allocations are based primarily on the number of FTEs that were allocated in previous years, with increases or decreases made incrementally to reflect the agency’s “investments” and “disinvestments.”53 Without reliable and valid workforce information, EPA cannot assure the Administration, Congress or the general public that it is hiring the right number and type of people or allocating existing FTE resources to effectively meet current or future mission needs. The Agency has yet to establish a comprehensive program to ensure that its staff has the requisite KSAs required to carry out its current mission, and its anticipated future missions. In reality, without reliable and valid workload and workforce information, EPA cannot properly assess whether or not its staff has the right balance of KSAs to carry out the current and future mission of the Agency. AFGE Council 238 urges the new Administration to ensure that the Agency evaluates its current workforce and ensures that its staff has the right set of KSAs to successfully do their jobs. EPA, like other Federal agencies and departments, is also facing an inevitable wave of retirements that would greatly impact its mission. For example, EPA has reported that almost 60 percent of its Senior Executive Service will be eligible to retire by 2008 and projected a loss of at least 20 percent of its supervisors in 10 of 18 priority occupations.54 The problem is even more acute for the engineers, scientists and staff that are on the front lines of accomplishing the Agency’s mission. It is imperative that EPA fully prepare for the resulting loss of leadership, institutional knowledge, and scientific expertise by hiring the next generation of EPA employees now. However, the lack of Agency funding only exacerbates the problem of retaining experienced staff, as well as transferring institutional knowledge to a new generation of EPA employees. To be strategically effective, EPA must determine the number of employees it needs to accomplish its mission objectives and how to best allocate its employees (FTEs) among EPA’s strategic goals and geographic locations now and in the immediate future, and have the resources to hire the new generation of EPA employees so that “institutional” knowledge can be transferred. 53 Ibid.; Page 7 GAO Report: Human Capital: Selected Agencies Have Opportunities to Enhance Existing Succession Planning and Management Efforts, GAO-05-585; June 2005, Page 3 54 107 Viewed from another perspective, if EPA should need to downsize, it would not have the information needed to ensure that staff reductions could be absorbed with minimal impacts on mission objectives. This was born out when Congress denied EPA’s proposal to downsize its enforcement staff in order to shift resources to State enforcement grants because EPA had no workforce information to demonstrate that staff reductions would not jeopardize environmental enforcement.55 When EPA proposed a consolidation/reorganization in August 2008 as a result of EPA’s Office of Research and Development Administrative Efficiencies Project, the Agency again appeared to have no basis to justify the proposed decrease of 97 FTEs, since it does not have current, valid workload and workforce data. Another illustration of the Agency’s lack of workload and workforce methodology occurred in FY 2006 in EPA’s Office of Enforcement and Compliance Assurance (“OECA”), where EPA Region 4 (Atlanta) requested additional FTEs on the basis that its Region was growing in population and industrial base. EPA Region 4 was denied any increase in FTEs due to the lack of any credible numbers to support the increase. In the same fashion, there have been no consequent decreases in FTEs in other Regions which have experienced a decrease in population and industrial base. All of the reports submitted by GAO and OIG on the Agency’s failure to adequately document its workload and properly allocate its workforce is troubling, and cause the Union great concern. Workload and Workforce Modeling Recommendation In a previously issued report56, OIG emphasized the need for EPA’s Office of Acquisition Management (“OAM”) to identify skill and FTE gaps within its workforce. The OIG recommended that OAM complete its workload analysis and then perform a workforce analysis. These analyses would allow OAM to identify needed skills so that any skill gaps or surpluses could be addressed. OAM indicated that it had previously attempted to conduct a workload analysis partly to compare FTE usage against workload processes. However, OAM was unable to complete the analysis because of the poor quality of data in their information systems and the application of subjective weighting to the data.57 This failure on the part of the Agency to properly conduct workload and workforce analyses to identify KSA and FTE gaps within EPA’s workforce 55 GAO Report: Major Management Challenges and Program Risks Environmental Protection Agency (GAO-03-112; January 2003, Page 21 56 OIG Report No. 2005-P-00006, Office of Acquisition Management Can Strengthen Its Organizational Systems, February 17, 2005, Page 5 57 OIG Report to Stephen L. Johnson, Acting EPA Administrator, EPA’s Key Management Challenges 2005, April 25, 2005, Page 15 108 is inhibiting AFGE Council 238 members’ ability to accomplish the Agency’s mission to protect human health and the environment. As stated in Attachment 2 Suggested Language Additions in Key Areas of the OIG Report EPA Can Better Manage Superfund Resources, “The workload model is one factor underlying FTE allocations. As its mission has evolved and grown through legislative or administrative mandates, EPA has adapted, as necessary, by reorganizing, reevaluating its needs, and requesting sufficient resources to meet its new and changing responsibilities. The workload model in existence in 1989, which was used to assign FTEs among the Regions for baseline activities that are still drivers of the Superfund program today, is not used to respond to these new priorities. Because of the disruptive effect of shifting personnel on an annual basis to address marginal programmatic changes, EPA discontinued its effort to collect, evaluate, and run model outputs on an annual basis, and instead has dealt with annual marginal changes to FTE ceilings according to program priorities.”58 [Emphasis added] In its September 26, 2008, Letter Report to Congress59, GAO responded to a mandate in House Report No. 110-187 that directed GAO to review EPA’s budget execution, specifically to identify the factors that influence EPA’s operating plan allocations to the Regional Offices for a selected national program and to compare and contrast these operating plan allocations with EPA’s reported obligations in the Regional Offices. GAO reviewed (1) EPA’s fiscal year 2007 operating plan allocations of new budget authority to the Regional Offices for OECA program/projects and (2) differences, if any, between those amounts and the amounts reported as obligated in the Regional Offices for these program/projects. In responding to these objectives, GAO also reviewed EPA’s OECA workforce planning system to determine whether EPA has reliable enforcement workload information that can support accurate, data-driven resource allocations. GAO reported that EPA’s approach to allocating resources in its operating plan to its Regional Offices had not substantially changed since it reported on it in 2001 and 2005. 60 GAO had reported in 2001 that OECA deployed its enforcement and compliance assurance workforce largely on the basis of workload models that were developed and 58 OIG Report - EPA Can Better Manage Superfund Resources, Report No. 2006-P-00013; February 28, 2006, Attachment 2 - Page 26 59 GAO Letter Report to Congress: EPA’s Execution of Its Fiscal Year 2007 New Budget Authority for the Enforcement and Compliance Assurance Program in the Regional Offices (GAO-08-1109R EPA Budget Execution; September 26, 2008) 60 Ibid., Page 6 109 last updated in the 1980s and did not consider current workload information such as the increased role states assumed over the years in environmental enforcement.61 In 2005 GAO reported that EPA’s process for allocating resources involved making annual incremental adjustments and relied primarily on historical precedent. EPA did not have a system in place to conduct a bottom-up review of the nature or distribution of its current workload, which has changed over time as EPA has taken on new responsibilities under the Clean Water Act and other laws and the states gradually assumed a greater role in the day-to-day implementation of key aspects of this workload. GAO specifically recommended in 2005 that EPA focus its efforts on a ground level assessment and (1) identify key workload indicators that drive resource needs, (2) ensure that relevant data are complete and reliable, and (3) use the results to inform the agency’s resource allocations.62 In both reports, GAO noted that one obstacle to developing a more systematic, datadriven approach to resource allocations was that EPA lacks complete and reliable workforce planning information, such as how much time staff work on various types of enforcement activities. Where there are serious FTE issues or staff training needs, the Agency needs to allocate resources accordingly, identifying options for addressing those problems. Since the Agency is now in the process of strategic planning63, the workload and workforce modeling components should be added to its five (5) year plan in order to better estimate the anticipated FTE levels, as well as KSAs needed to adequately protect human health and the environment. However, three important caveats to these recommendations to add workload and workforce modeling to the strategic planning effort are that: (1) It is done in partnership with AFGE Council 238; (2) Sufficient resources (FTEs and budget) are allocated for the development and implementation of the workload and workforce modeling effort; and (3) There be Congressional oversight of this effort by GAO. 61 GAO Report HUMAN CAPITAL - Implementing an Effective Workforce Strategy Would Help EPA to Achieve Its Strategic Goals (GAO-01-812; July 2001) 62 GAO Report to Congressional Requesters: CLEAN WATER ACT - Improved Resource Planning Would Help EPA Better Respond to Changing Needs and Fiscal Constraints (GAO-05-721; July 2005) 63 2009-2014 EPA Strategic Plan; http://www.epa.gov/ocfo/plan/plan.htm 110 Recommendations AFGE Council 238 supports the creation of a Federal clean water infrastructure trust fund to provide a stable, dedicated source of revenue to the states and municipalities to assist in the repair and improvement of America's sewage treatment systems. Continued funding of the Brownfields program is essential to assisting communities across the country and is in a very real sense a program that creates jobs. AFGE Council 238 urges Congress to review all of EPA’s programmatic needs, planning and current funding levels in light of inflation and the growth in statutory duties and responsibilities, the need for additional FTEs, as well as growing State needs. In addition, AFGE Council 238 urges Congress to require EPA to add workload and workforce modeling, as well as a concurrent effort to assess its staffs’ training needs, in order to support an enhanced training program, its long-term human resource planning efforts, and to help direct future hiring needs. 111 Environmental Protection Republicans, Democrats and Their Constituents Agree EXECUTIVE SUMMARY This issue paper focuses on bipartisan support on the importance of effective environmental protection to the American public. Clean air, clean water, safe levels of pesticides are a common desire of all patriotic Americans. Effective environmental protection in the United States has been and continues to be a bipartisan requirement of the American People. This paper attempts to elaborate on the bipartisan support for a clean America, as well as comments from some of America’s greatest business and Political Leaders. Discussion More Than 60,000 Firms In U.S. Business Groups Urge Congress To Support EPA (December 16, 2010)64 The EPA and the Clean Air Act got a huge boost from large and small U.S. companies, when over 60,000 firms represented by 14 business organizations told Congress to keep the Environmental Protection Agency (EPA) and Clean Air Act strong. At the same time, the groups expressed concerned that the EPA’s half-year delay of pending ozone (smog) rules will be costly to U.S. companies. The delay could result in higher health costs due to increased employee sick-day absenteeism and related medical costs borne entirely or partially by small and large U.S. companies. The groups’ joint letter (http://www.abce.us/) reads in part as follows: “… (S)mall business owners support some of the key strategies needed to reduce pollution and transition to a clean energy economy. A recent national poll of small business owners conducted by Small Business Majority … found that 61 percent of respondents agree that moving the country to clean energy is a way to restart the economy and make their businesses more competitive in the global economy, and that 50 percent support comprehensive clean energy and climate policy … Larger businesses also support EPA’s authority under the Clean Air Act and understand that it has spurred innovation and economic value for the U.S.” 64 http://www.americanbusinessforcleanenergy.org/ckfinder/userfiles/files/CAA_Support_Letter.pdf 112 The follow 14 leading U.S. business groups joined together to support the Clean Air Act: • Small Business Majority; • Main Street Alliance; • American Businesses for Clean Energy; • Businesses for Innovative Climate and Energy Policy (BICEP); • American Wind Energy Association; • American Sustainable Business Council; • Manhattan Chamber of Commerce; • South Carolina Small Business Chamber; • Women’s Business Development Center; • Vermont Businesses for Social Responsibility; • Oregon Small Business for Responsible Leadership; • The Center for Small Business and the Environment; • New Voice of Business; and • Environmental Entrepreneurs (E2). Survey Results – Americans and Attitudes About the EPA65 September 14, 2010 - Graham Hueber, Infogroup/Opinion Research Corporation (ORC) A new national telephone survey by Infogroup/ORC of 1,007 Americans conducted from September 10-13, 2010 shows the following: More than four out of five Americans (82 percent) support the work of the U.S. Environmental Protection Agency, with 45 percent supporting it strongly compared to only 9 percent who strongly oppose it. Support for the EPA is consistent across regions: Northeast (79 percent); Midwest (82 percent); South (81 percent) and West (86 percent). Support for the EPA was strong across political party lines: Republicans (71 percent); Independents (89 percent); and Democrats (93 percent).66 About three out of four Americans (73 percent) support “protecting the U.S. Environmental Protection Agency’s authority” to “take steps that will reduce greenhouse gas emissions from electric utilities and other major industrial polluters.” Support is fairly evenly divided between “strongly” (38 percent) and “somewhat” (34 percent). By contrast, only about one in four Americans (24 percent) oppose the EPA’s authority to control carbon dioxide pollution, with just 15 percent in the “strongly oppose category. 65 http://docs.nrdc.org/globalWarming/files/glo_10091501a.pdf “Republican” includes independents leaning Republican, “Democrat” includes independents leaning Democrat and “Independent” refers to those who no inclination towards one of the two major parties. 66 113 The Great "Environment Versus Economy" Myth “We can’t afford any more environmental protection, because it will hurt the economy.” Renowned economist Dr. John R. E. Bliese, in a published article posted at the “Republicans for Environmental Protection” website says that: “How many times have you heard that line? Probably every time any new standards were proposed to clean up our air or water and protect our health. And every time we try to preserve some rare plant or animal we have pushed to the brink of extinction, it’s “owls (or whatever) versus jobs.” These arguments are the most common ones we face in trying to protect the earth. Politicians spout them freely, and so do business groups and radio talk show entertainers. There is only one problem with these assertions: They are simply not true! There have been dozens of well-designed studies by economists who have tested these claims, and the results are clear: environmental protection normally has no negative impact on the economy overall, and sometimes it has a positive effect.”67 Lamar Alexander on Environment - Republican Senior Senator (TN) Bipartisan wetland protection & pollution clean-up “Republicans must do more though than simply react to environmental legislation-we must take the lead and work on environmental issues in an open-minded, bipartisan fashion. During my tenure as Governor of Tennessee I worked to control water pollution, protect our precious wetland areas and clean up hazardous waste. Our efforts resulted in the National Conservation Achievement Award from the National Wildlife Federation and the Conservationist of the Year award from the Tennessee Conservation League.”68 Quotes from Great American Leaders on the Environment "As we peer into society's future, we - you and I, and our government - must avoid the impulse to live only for today, plundering for, for our own ease and convenience, the precious resources of tomorrow. We cannot mortgage the material assets of our grandchildren without risking the loss also of their political and spiritual heritage."69 “While I’m a great believer in the free enterprise system and all that it entails, I’m an even stronger believer in the right of our people to live in a clean, pollution-free environment.”70 "We can no longer afford to consider air and water common property, free to be abused by anyone without regard to the consequences. Instead, we should begin now to treat 67 Republicans for Environmental Protection , http://www.rep.org/news/Gvol3/ge3.1_myth.html http://www.ontheissues.org/Celeb/Lamar_Alexander_Environment.htm 69 January 17, 1961, Farewell Address to the Nation, President Dwight D. Eisenhower (1890 - 1969) 70 "The Conscience of a Majority (1970), Barry Goldwater (1909 - 1998) 68 114 them as scarce resources, which we are no more free to contaminate than we are free to throw garbage into our neighbor's yard."71 "...because there are no local or State boundaries to the problems of our environment, the Federal Government must play an active, positive role. We can and will set standards. We can and will exercise leadership."72 "As we work to expand our supplies of energy, we should also recognize that we must balance those efforts with our concern to preserve our environment. In the past, as we have sought new energy sources, we have too often damaged or despoiled our land." 73 "What is a conservative after all but one who conserves, one who is committed to protecting and holding close the things by which we live...And we want to protect and conserve the land on which we live -- our countryside, our rivers and mountains, our plains and meadows and forests. This is our patrimony. This is what we leave to our children. And our great moral responsibility is to leave it to them either as we found it or better than we found it."74 "If we've learned any lessons during the past few decades, perhaps the most important is that preservation of our environment is not a partisan challenge; it's common sense. Our physical health, our social happiness, and our economic well-being will be sustained only by all of us working in partnership as thoughtful, effective stewards of our natural resources."75 "I'm proud of having been one of the first to recognize that states and the federal government have a duty to protect our natural resources from the damaging effects of pollution that can accompany industrial development."76 "For decades we have been living lives of abundance, with little regard for our natural resources or global health. But we are now facing hard choices in our energy policy. Future generations — my children and grandchildren, along with yours — will have to live with the decisions we make today. And so it is time for us to make some tough and 71 Annual Message to Congress on the State of the Union, 1970, President Richard Nixon (1913 - 1994) State of the Union Message on Natural Resources and the Environment, February 14th, 1973, President Richard Nixon (1913 - 1994) 73 Ibid. 74 Remarks at dedication of National Geographic Society new headquarters building, June 19, 1984, President Ronald Reagan (1911 - 2004) 75 Remarks on signing annual report of Council on Environmental Quality, July 11, 1984, President Ronald Reagan (1911-2004) 76 Radio address to nation on environmental issues, July 14, 1984, President Ronald Reagan (1911-2004) 72 115 — hopefully — smart choices regarding our energy use and production before it is too late."77 "Some urge we do nothing because we can't be certain how bad the (climate) problem might become or they presume the worst effects are most likely to occur in our grandchildren's lifetime. I'm a proud conservative, and I reject that kind of live-for-today, ‘me generation,’ attitude. It is unworthy of us and incompatible with our reputation as visionaries and problem solvers. Americans have never feared change. We make change work for us."78 "The evidence is sufficient that we should move towards the most effective possible steps to reduce carbon loading of the atmosphere."79 "You can be totally committed to conservative principles — to individual liberty, a market economy, entrepreneurship and lower taxes — and still be a Green Conservative. You can believe that with the sound use of science and technology and the right incentives to encourage entrepreneurs, conservatism can provide a better solution for the health of our planet than can liberalism."80 Summary Both Democrats and Republicans support the importance of effective environmental protection of this great Nation’s natural resources. Clean air, clean water, safe levels of pesticides and effective disposal of toxic substances are a common desire of all patriotic Americans. Effective environmental protection in the United States has been and continues to be a bipartisan requirement of the American People. We all share the same goals and desires for clean air and water for ourselves and for our children. 77 Address to Clean Cities Congress, May 8, 2006, John McCain (1936-) Address at Center for Strategic and International Studies, April 23, 2007, John McCain (1936-) 79 Statement in debate sponsored by John Brademas Center for the Study of Congress, April 10, 2007 Newt Gingrich (1943 - ) 78 80 Article, Human Events Online, April 23, 2007, Newt Gingrich (1943-) 116 What We’re Asking You to Do in a Bipartisan “Partnership” in Congress Support the budget for and work of the Federal civilian employees at the U.S. EPA. Encourage new job creation within all “environmental protection industries” like clean fuels, clean cars, wind and solar energy, and more. Contact AFGE Council 238 at the U.S. EPA for up to date information on programs and research at the U.S. EPA. 117 INAPPROPRIATE HIRING PRACTICE AT EPA EXECUTIVE SUMMARY Title 42 of the United States Code (USC) Section 209 (f) – (h) specifically granted to the Department of Health and Human Services (HHS), special hiring authority to hire consultants, scientists and engineers, at a much greater pay scale than allowed under Title 5 authority. Due to perceived problems at the Environmental Protection Agency’s (EPA) Office of Research and Development (ORD) in recruiting, hiring and retaining scientists and engineers (primarily due to the shortage of allocated Senior Executive Service (SES), Senior Level (SL)81 positions generally in a scientific advisory capacity, and Scientific or Professional positions (ST)82 slots in ORD, EPA interpreted the Title 42 authority as extending to the work conducted by their Office of Research and Development and obtained appropriation authority, from Fiscal Year 2006 through Fiscal Year 2011. Discussion In a single sentence under an administrative provision of Public Law 109-54 the Environmental Protection Agency’s Office of Research and Development was first granted the authority to make up to 5 appointments per year using 42 USC Section 209, even though this statute does not cover EPA. Funding for this provision was extended through fiscal year 2015 when the Department of the Interior, Environment, and Related Agencies Appropriations Act of 2010 (H.R. 2996) was passed by the House. Currently, about fifteen appointments have been made, but a total of thirty appointments are expected to be made by the end of FY 2011. 81 Federal Employees Pay Comparability Act 1990 82 Ibid. 118 Salaries in Millions 10 Title 42 Salaries (in millions) 8 6 4 2 0 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Fiscal Years Assuming a salary of $195,000, the chart below shows how much EPA is expecting to spend for Title 42 hires. With salary compensation limited to $250,000 per year and not to exceed $275,000 in total compensation including bonuses, using the $195,000 salary as an average is a conservative estimate. Beginning in FY 2012, the Office of Research Development will be obligated to spend nearly $7 million dollars for a handful of highly paid scientists. Representatives Joe Barton (TX – 6th) and Greg Walden (OR – 2nd) have previously questioned the Agency’s use of the Title 42 hiring authority. Asks Barton of EPA Administrator Lisa Jackson, “We are curious how EPA can legally use statutory authority explicitly committed to the Public Health Service and the Surgeon General, particularly the special consultant authority in 209(f).” Representative Barton also expressed concern about the large retention bonuses paid to Title 42 employees, the millions in taxpayer dollars needed to pay Title 42 salaries, the extensive use of this hiring authority within HHS, and the spread of this hiring authority to other agencies. EPA’s efforts to access and model the HHS Title 42 hiring authority should raise alarms, it only took HHS 10 years to make over 2000 Title 42 hires. EPA is just now beginning the fifth year of hiring. We are encouraged by the efforts of Representatives Barton and Walden. AFGE Council 238 has previously expressed concerns about the Agency using Title 42 authority to circumvent civil service hiring laws. Congress passed civil service hiring laws to ensure fair and equal treatment of all applicants for federal government positions. Title 42 specifically exempts EPA from using fair and open competition to fill their management positions. Title 42 also allows for a number of questionable hiring/employment practices such as the hiring of foreign nationals, creating an alternative pay system that has little public accountability, large bonuses, direct hiring without competition, and pay increases not limited by Congressional or Executive pay freezes. The sole rationale for using Title 42 Authority, as mentioned in a 2010 EPA 119 funded, National Research Council (NRC) report (released) is that the Agency lacked SES positions for their scientific leadership positions (i.e., administrative positions) and switched to using Title 42 hiring authority. A solution to assist ORD in hiring scientific leaders is to use SES hiring, either by being granted more SES slots and /or by gradually switching the SES positions from administrative slots back to scientific slots, through retirements, transfers, etc. Additionally, ORD has used Title 42 positions to hire internal ORD employees, as a retention tool and not for outside experts who are needed by the Agency for immediate pressing issues, where insufficient EPA expertise exists, thereby, bypassing the intent of this hiring authority. Summary Without current or reliable workforce information, EPA cannot be sure which hires are critical to achieving the agency mission. A 2010 ORD survey of employees showed that the greatest need was in administrative support. In light of the current budget shortfalls at EPA and no Agency wide direction in hiring, AFGE Council 238 recommends defunding Title 42 at EPA. 120 Social Security Administration As the crown jewel of the New Deal and the most successful and popular program of the federal government, Social Security is a program AFGE will fight to strengthen and protect. From the privatizers to those who would slash benefits by raising the age of eligibility and undermining inflation protection, Social Security has powerful enemies. AFGE is proud to represent approximately 52,000 employees of the Social Security Administration (SSA) who work every day to make sure that their fellow Americans receive all of the benefits to which they are entitled in a timely and accurate manner. AFGE members are proud of the Social Security system’s reputation for integrity, efficiency, reliability, and consistency. AFGE will continue to work to promote honesty and truthfulness in all public discussions over Social Security, with the goal of strengthening the program now and in the future. Stoking Fear of Insolvency The latest effort to undermine public support for Social Security is coming from the same organization that generated the deficit commission’s proposals to vastly increase the amount charged to federal employees for their Federal Employees Retirement System (FERS) annuity. The “Third Way” foray into the business of fear-mongering on Social Security starts out: “…the intergenerational promise of Social Security, our nation’s most important social insurance, is a false one.” It goes on to heighten fears about Social Security’s solvency by saying, wrongly, “Anyone who hopes to be alive in 27 years won’t receive their promised benefits because the Trust Funds will be completely depleted.” http://www.thirdway.org/publications/363 With misinformation like this being purveyed by impressive-sounding Washington “think tanks” nominally associated with the Democratic Party, it is no wonder that so many people are convinced that they will never see Social Security benefits. The campaign to cut and/or dismantle Social Security requires substantial confusion on the part of the public because only those who never expect to receive benefits are willing to support cuts or privatization. According to the Social Security Administration’s own actuaries, the truth is that Social Security is fully funded for the next 30 years, and under moderate growth rate assumptions, would be able to pay about 78% of promised benefits indefinitely if no changes to the system are made. This hardly qualifies as a crisis, but the Third Way and other enemies of Social Security want the American public to think otherwise. The Third Way’s plan for closing Social Security’s projected long-term funding gap relies on raising the retirement age to 70, reducing cost of living adjustments by switching to a “chained Consumer Price Index (CPI)”, an inferior measure of inflation that excludes price changes when a possible substitute good or service exists; raising the level of 121 income subject to payroll taxes and imposes taxes on income between $300,000 and $500,000, but lowers benefits for high earners (certain to weaken support for the program on the part of high earners), and charges immigrants on H2A and H2B visas a 10% payroll tax contribution. The proposals offered by the Third Way and the President’s Deficit Commission share the same fatal flaws: First, they attempt to exploit the public’s confusion about the impact of the deficit on the economy. Second, they attempt to conflate the enormous and genuine threat that unchecked health care costs have on employer-sponsored health insurance and the Medicare and Medicaid programs with small and separate financial problem that Social Security may have in the future. The Importance of Social Security Relative to the Size of its Projected 75-Year Funding Gap The best way to understand the size of Social Security’s projected long-term funding shortfall is to know that raising payroll taxes by 1.7 percentage points, from the current 12.4% of covered earnings to 14.1% of covered earnings would be sufficient to close the entire projected gap over the 75-year planning horizon. Today, employers and employees split Social Security payroll taxes evenly. Workers pay 6.2% of earnings up to $106,800, and employers pay the other 6.2%. To make the entire projected 75-year gap disappear, Congress could increase those respective amounts to 7.05% apiece. http://assets.aarp.org/rgcenter/econ/i3_reform.pdf The crash of the housing bubble eliminated most of the wealth that the baby boomers had been to accumulate over the course of their working lives. According to a study by the Center on Economic Policy Research, the median household net worth, including home equity of “older baby boomers,” those born between 1946 and 1955, was just $170,000 as of 2009. The median household net wealth of the entire baby boom is $80,000 including home equity, which leaves this population cohort hugely reliant for Social Security for retirement income security. According to the Department of Labor’s statistics on employer provided pensions, in 1999, the last time complete survey data from the Current Population Survey was compiled on this issue, the overall coverage rate was 44%. Only 40% of female workers were covered, and 47% of male workers were covered. http://www.dol.gov/ebsa/publications/99pensionreport.html. Of course, this was prior to the Great Recession and the financial crisis that destroyed so much of the value of workers’ 401 (k) savings. In the twelve years since these data were reported, pension coverage by private employers has only decreased, leaving American workers more dependent on Social Security, and more vulnerable to accepting cuts when they believe that the alternative is to receive nothing. 122 Progressive Options for Closing Social Security’s Modest 75-year Funding Gap Raising the Social Security payroll tax by 0.85 percentage points for employers and employees alike is attractive for its simplicity, but it is not the fairest way to close the projected gap. One of the most popular and progressive measures would be to raise the amount of earned income subject to payroll taxes. Currently, wages and salaries above $106,800 per year are not subject to taxes. Historically, the earnings cap allowed 90% of all wages and salaries to be taxed. In recent decades, as more income shifted away from the middle class and the poor to the very rich, indexing this cap to inflation was insufficient to retain that 90% threshold. Most analysts estimate that raising the cap to cover 90% of wages and salaries would cover about 40% of the projected gap. Another 32% of the projected gap could be closed by subjecting all salary income over the taxable maximum to a 3% tax, without any corresponding increase in benefits. That would leave about 28% of the remaining projected gap to fight over. Bringing in state and local workers who currently do not participate in Social Security would close another 10% of the projected gap. Raising the payroll tax by just 0.5% could close 23% of the gap. Lowering benefits for the very rich could also close 25% of the gap. There is no end to progressive solutions, just like there seems to be no end to Social Security’s enemies raising proposals like increasing the age of eligibility for full or partial benefits, and reducing COLAs, and setting up private accounts so that workers would be left to the uncertainties of Wall Street and interest rates. Conclusion There is no good reason to cut Social Security benefits now or in the future. Increasing numbers of Americans rely upon Social Security for most or all of their retirement income, a trend likely to continue indefinitely. Proposals based upon assumptions about increased longevity ignore the fact that almost all of the observed increases are experienced by the top half of the income distribution, those least likely to rely on Social Security for the bulk of their retirement income. Most important, no changes to Social Security should be considered or undertaken in the midst of the mass confusion and misunderstanding that characterize the public’s current “knowledge” about the program. Until Americans are assured that the notion that they’ll “never” see promised Social Security benefits is dispelled, they are likely to acquiesce to the demands of those who would exploit this confusion. AFGE will continue to work to educate the American public about the true strength of the Social Security system so that it can continue to fulfill its promise for generations to come. 123 National Guard Technicians Bill of Rights Legislation With more reliance being placed on the members of the National Guard and Reserve in accomplishing the vital mission of the Department of Defense, providing equity and fairness to National Guard Technicians is long past due. The Defense of America and the war of global terrorism rely more now than ever before on the role that National Guard Technicians provide. As this reliance increases, so does the awareness of the differences that exist between the active and reserve component aspects of their military membership and the work lives as civilian employees. The Reserve Component as an operational force was a key transformation consideration in the BRAC 2005 realignments and has been a significant consideration in the wars in Afghanistan and Iraq. The frequency and duration of deployments of National Guard units is significantly different today than when the current provisions of law were crafted. Likewise, the ever increasing role that many National Guard units have daily is significantly changed. Additionally, in any drawdown of active component forces as now being considered, reliance on the reserve component becomes more critical in sustaining the Department of Defense’s capabilities. This is equally true in instances where states find it necessary to deploy National Guard units for domestic, national security, and in response to natural disasters. There are 48,441 dual-status technicians in the United States. National Guard dualstatus technicians are a unique type of federal employee. As civilians who work for the National Guard they are also required to maintain membership in the National Guard as a member of the Armed Forces. National Guard Technicians are covered by both Title 5 and Title 32 (known as the Technician Act). The Technician Act requires dual-status technicians to wear a military uniform as a condition of their employment; leave their civilian position if they can no longer meet their military requirements; and exempts the workers from overtime pay, seniority, and disciplinary appeal rights that other federal workers have. Additionally, the State Adjutant, a state employee, is responsible for and oversees these employee service members. Representative Rob Andrews (D-NJ) (Nat Bell in Rep. Rob Andrews’ office at: 202-2256501) supports correcting these inequities which include; Retirement - Lowering the Military retirement age to 55 for all National Guard members to provide parity with other members of the military and the Elimination of the 1996 cutoff date in the FY 00 NDAA so National Guard Technicians serving before that time can also benefit from earlier civilian retirement (at age 50 with 20 years of service or after 25 years of service at any age). Dual status requirement - Allow Dual Status Technicians to leave the military and retain their civilian position after 20 years of service and increasing the number of nondual status positions. 124 Provide the same Appeal rights afforded other federal employees - by allowing dual status technicians to appeal disciplinary decisions by the Adjutants General to the MSPB or to arbitrate those decisions like other federal workers can. Provide for Health Care comparable to that of the active component – by making the Wounded Warrior program for technicians mandatory, request that a study be conducted to examine the inclusion of technicians in the Tricare program, require the federal government to continue to pay FEHBP premiums during Emergency State Active Duty (ESAD) and during contingency operations. Enlistment Bonuses, Student Loan Programs, and Overtime – allow National Guard Technicians to receive and keep enlistment bonuses, participate in student loan repayment programs, and to receive overtime pay for overtime worked. Increase the amount of leave for training – double the amount of training leave time from 120 hours to 240 hours; without a cap on the amount of time a worker can carry over. Deployment Bonus – provide a deployment bonus of $100 per day per Technician for each day over 180 days while serving in an active duty capacity in an overseas deployment. Provide for Retention rights during a reduction in force (RIF) – give Dual Status Technicians the same order of retention rights as other federal workers during a reduction-in-force (RIF). 125 District of Columbia Worker Issues Introduction In November 2010, AFGE members joined a clear majority of District of Columbia (DC) voters in rejecting the politics and policies of exclusion that were the calling card of former mayor Adrian Fenty. At Mayor Fenty’s direction, an enormous budget deficit was not only concealed, but used as subterfuge for depleting the ranks of the District government workforce by employing a strategy of routinely ignoring collective bargaining agreements and breaking District and federal law in an effort to deny District workers due process under the law. The election of Mayor Vince Gray was strong evidence that the voices of the residents of DC and the civil servants who work on their behalf matters. AFGE calls upon Mayor Gray to partner with unions in a meaningful way to address issues crucial to the workforce and DC residents. We also urge him to reject anti-union calls to balance the city’s budget on the backs of its workforce and dilute the participation of public sector unions in the governing process. DC Workers Make “One City” Work Mayor Gray used the slogan “One City” to characterize both his campaign and his vision of the District. DC workers are an integral part of “One City” and should be have a meaningful voice at the table in addressing the myriad of problems left by former Mayor Fenty, including serious violation of DC public worker protection statutes and failure to honor collective bargaining agreements, but also in addressing issues such as reducing the large budget deficit and the safety of DC residents. AFGE calls on Mayor Gray to meet regularly with union representatives and resolve ongoing DC public worker issues from the outset of his administration. Procurement Reform AFGE believes that as the civil servants of our nation’s capital, DC should be a model for procurement legislation and policy at the state and local level. Despite rhetoric to the contrary, there is no proof that private contractors are more efficient and cost-effective than government workers. Nonetheless, this unproven myth is at the heart of many efforts to contract out government jobs. The Gray Administration cannot privatize itself out of the current and ongoing budget crisis facing the city. There should be no contracting out of public sector jobs unless the contractor can perform more efficiently and effectively and at lower costs than DC workers. The right of DC workers to bid in good faith for the work to be contracted must be strengthened, with effective oversight of agencies that ignore or consciously circumvent law and policies giving DC workers a fair shake. Finally, DC workers whose jobs are subject to a reduction in force (RIF) because of contracting out should receive full and fair first consideration for employment with the contractor at equivalent pay and benefits. During 2010, then DC Council Chair Gray introduced the Omnibus Procurement Reform Amendment Act on behalf of former Mayor Fenty. Instead of strengthening oversight of 126 the contracting out process and protecting the rights of incumbent workers, the bill focused on improving procurement practices with respect to contractors while diminishing the already weak rights of bargaining unit employees by eliminating statutory provisions restricting privatization contracts and procedures. AFGE strongly supported Council Member Mary Cheh’s amendments to the Procurement Act, which in addition to retaining the section of current law protecting DC workers, also improved efficiency, oversight, and transparency in the District’s contracting system. AFGE strongly urges Mayor Gray to support the DC Council’s adoption of Procurement Reform legislation that accomplishes the following: Require DC agencies to maintain an inventory of the funds spent on contractors and public employees by agency and function; Require that insourcing and outsourcing be based on cost savings and efficiency analyses rather than ideology; Allow DC workers and contractors the same right to protest DC contracting actions, and provide DC workers with the same right as contractors to a debrief when they lose a bid; No contractor should be able to take work from DC employees by submitting a lower bid by failing to provide equivalent health and care and retirement benefits to that provided by the DC government; DC should establish a definition of functions that are “inherently governmental” and can only be performed by government employees, not contractors; and Ensure the right of first refusal to employment by the contractor in a comparable available position for which the employee is qualified, and DC workers should have the right to the same wages and benefits paid while employed by the District, including wage increases under the current collective bargaining agreement for their bargaining unit if hired by the contractor. Repeal the Abolishment Act In 2006, Congress extended the Abolishment Act (I-624.08), effectively allowing the DC government to define the procedures governing any RIF initiated by an agency head by limiting the procedures to which an aggrieved employee is entitled and rendering those procedures nonnegotiable. Although this was a misguided effort by Congress to help DC government reduce costs, agencies under the Fenty administration exploited the Abolishment Act to prevent DC workers from arbitrating any term or condition of the RIF affecting them whether substantive or procedural. As a result, DC workers covered by a collective bargaining agreement have been unfairly deprived of any meaningful opportunity to assert the rights that they were intended to have under the District of Columbia Comprehensive Merit Personnel Act. Disability Compensation Caps The DC Disability Compensation program services more than 2000 DC government workers who were injured on the job in course of carrying out their duties. AFGE has 127 fought hard for improvements in the program over the past several years so that workers claims are processed in a more timely manner, physicians and attorneys’ fees are paid for their services and workers and their families have compensation when they are unable to work due to their injuries. Because injuries can take months, years or even decades, until 2010 there has been no cap on the amount of time a worker would receive disability benefits. Providing appropriate support, medical care and compensation to injured workers will lower costs because those workers are more likely to return to work faster than those whose recovery is hampered by a lack of income and medical attention. In a shortsighted move to address the current DC budget deficit, the FY 2011 Budget Support Act undermined improvements to the Disability Compensation System by: Financially penalizing injured workers who appeal a decision; Placing an arbitrary cap of 10 years for temporary disabilities; Giving preference to a government doctor over the treating physician of an injured worker during evaluations; Prohibiting benefits for emotional or psychological injuries; and Reversing the attorneys’ fee provision. By enacting these provisions, the DC Council reverses the progress made through years of advocacy, public hearings and a mountain of documentation of the need to reform the Disability Compensation Program to better serve injured workers and stewardship of taxpayer dollars. The decision to incorporate these proposals into the budgetary process prevented a thorough public dialogue and comment period and created a situation where serious worker concerns were drowned out by the louder noise of larger budgetary battles and debates. AFGE calls on the DC Council to hold hearings to weigh the impact of the changes in the Disability Compensation Program on DC workers against the small and speculative savings provided, and repeal those changes to the program. The Leadership Vacuum at the Court Services and Offender Supervisory Agency AFGE urgently calls for the Obama Administration to address the serious and ongoing problems faced by the workforce of the Court Services and Offender Supervisory Agency (CSOSA) due to the lack of permanent leadership at their agency. It has been almost two and one-half years since the agency—charged with the important mission of providing supervision of criminal offenders on probation, parole, and supervised release—has been guided by permanent leadership. AFGE strongly endorses the consideration of George Pruden to be CSOSA administrator. The members of AFGE Local 727 at CSOSA are committed to performing their duties of protecting the public while facilitating the supervision, rehabilitation, and reentry of over 16,000 offender and pretrial defendants even though the lack of leadership at CSOSA has made their difficult jobs even harder to perform. During the period without permanent and effective leadership, the attrition rate for staff at the agency has been 128 upwards of 8 percent. This attrition rate is especially detrimental given that experience on the job is essential to the duties of supervising criminal offenders. Important management positions remain vacant for close to three years because there is no permanent CSOSA administrator to appoint qualified staff to essential positions including the position of General Counsel. District Youth Rehabilitation Service Workers Voice Concern for Public Safety AFGE shares the concerns of our members who work at the agencies of the District Youth Rehabilitation Service (DYRS) who view their duties as a responsibility to protect both young offenders and the public. Wards of the city are increasingly the victims and perpetrators of crimes that reach beyond the District into Maryland, Virginia, and other parts of the country. DYRS workers have long known that the combination of inadequate staffing and high caseloads has left workers unable to supervise highly troubled and often violent offenders. DYRS workers report that the District currently has no certain count of the number and whereabouts of its wards because the computer program purchased to keep track of offenders several years ago simply does not work. DYRS has seen four different permanent or interim directors within the past year that has resulted in no continuity in the agency. AFGE calls for DC government to own the problems within DYRS and give DYRS workers a meaningful voice at the table in crafting a strategy to address rising juvenile recidivism and better protect the public. Under former director Vincent Schiraldi and former Mayor Fenty, DC pursued a model of juvenile justice focused on community rehabilitation rather than institutions. While DYRS workers agree that young offenders must be successfully reintegrated as safe, productive members of their communities, workers state they are not given the resources to adequately evaluate and diagnose youth for mental illness and substance abuse, adequately monitor and supervise youth who are released into the community and that their strong recommendations that certain violent offenders be held in higher security facilities are ignored by supervisors. Mayor Gray has called for an overhaul of the juvenile justice agency, but has not offered specifics as to what his administration intends to do to address the problem. AFGE believes that a very important aspect of that overhaul must be to give DYRS workers a meaningful voice at the table. Conclusion During the years of the Fenty administration, DC public workers were deemed to be the problem with the city, rather than the dedicated men and women who often struggle against great odds to provide services to District residents. AFGE hopes that the election of Mayor Gray will signal the beginning of the District treating its workforce with dignity and respect, and allow DC public workers to be a part of the solution of the District’s problems. 129 Equal Employment Opportunity Commission Slashing Civil Rights Enforcement is a Job-Killer Summary AFGE’s National Council of EEOC Locals, No. 216, represents employees on the front lines of protecting civil rights in the workplace. The Equal Employment Opportunity Commission’s (EEOC’s) investigators, attorneys, mediators, administrative judges and other staff enforce civil rights laws, which protect against discrimination on the job, based on race, religion, color, national origin, sex, age disability and now genetics. In FY10, EEOC received 99,992 charges, the highest number of charges of workplace discrimination in its history. This represents the third consecutive year of record high filings. This trend likely will continue, due to high unemployment, the amendment of disability laws, and the enforcement of a new statute focusing on genetic discrimination. The good news is that in FY10, EEOC helped more workers than in FY09, as demonstrated by an increase in people who received monetary benefits. Also, EEOC’s backlog grew less than 1% in FY10, after eight consecutive years of steadily sharp growth. These results are due to the hard work of EEOC’s frontline staff, which grew slightly in FY10. The bad news is that EEOC still ended FY10 with a backlog of 86,338 pending cases. EEOC made no inroads in FY10 towards tackling this gargantuan surplus of unprocessed cases. These cases represent lost opportunities to get Americans back to work. The average processing time of an EEOC case grew to an appalling 10 months. For FY12, AFGE Council 216 will lobby Congress to support the President’s FY11 request to increase EEOC’s budget from $367 million to $385 million. In any event, AFGE Council 216 will urge Congress to at least maintain FY10 funding levels. Although maintaining FY10 funding will not allow for backlog reduction, it is preferable to the explosion of unprocessed cases that will occur if the agency were cut back to FY08 budget and staffing levels. In fact, EEOC’s FY08 budget of $329 million represented the sixth year of virtually level funding. As a result, all customer service metrics hit rock bottom. It would be job-killing for workers for EEOC to return to these dismal FY08 service levels in today’s economy. Discussion 1. The Economy and Added Enforcement Authority Caused A Third Year of Record High EEOC Charges and No Backlog Reduction. AFGE Council 216 Will Lobby Congress To Now Pass a Budget Increase for EEOC, Requested for FY11; But In Any Event, At Least Maintain FY10 Funding, to Prevent Backsliding at EEOC that will Affect Jobs. 130 EEOC is the chief agency responsible for enforcing this country’s laws preventing discrimination in employment. Discrimination costs Americans jobs in the private and Federal sectors. The agency must be swift and effective in order to deter discrimination and to make a difference to those whose cases it handles. Workplace discrimination, such as harassment, retaliation, or failure to accommodate a disability, prevents employees from working or getting a job in the first place. In FY10, EEOC received just shy of 100,000 charges of discrimination, an historic high for the agency. FY10 was the third consecutive year of record high charges. The two biggest factors leading to the upswing in charges are: high unemployment and EEOC’s responsibility for three new laws. The former reason is expected to continue in the near-term and the latter is a permanent matter of EEOC’s jurisdiction. In 2009, EEOC began enforcement of three new laws: the Genetic Information Non Discrimination Act (GINA); the Lilly Ledbetter Act; and the Americans with Disabilities Amendments Act (ADAAA). Notably, the ADAAA, which was a bipartisan bill passed unanimously by Congress to support the employment of disabled workers, resulted in a 17% increase in filings. In FY10, EEOC hired a limited number of much needed staff. However, of the 198 net hires, only a small number represented frontline staff, e.g., 66 investigators and 8 mediators. This means EEOC added the equivalent of just over one investigator per office and less than 1 mediator per every 10 offices. While EEOC is touting its “rebuilding” in light of the loss of 25% of its workforce since 2001, the agency has not nearly replenished the staffing or even hired up to the congressionally authorized ceiling. As a point of comparison, the last time that EEOC received close to the recent record high charge filings was 1994, when the agency’s total staff was 2,832, i.e., 550 more employees than today’s lean workforce of 2,385 employees. Nevertheless, even these modest additions demonstrate the payoff to the public of adding frontline resources. For instance in FY10, more workers who brought their complaints to the EEOC received monetary benefits than in FY09. Also, after years of steep case backlog increases, EEOC case backlog rose less than 1%. But this is hardly a happy ending considering that EEOC ended FY10 with a backlog totaling 86,338 unprocessed cases. Moreover, unusually high closures for FY10 are no doubt attributable to the agency’s year-end push to dump cases. Although not admitted by EEOC, its first, second and even third line supervisors closed cases to reach the unprecedented closure numbers. The worst impact on the public of EEOC’s continued frontline staffing shortages and intake inefficiencies is a 10 month average charge processing time. Imagine going to the EEOC because your boss is making racial slurs, then while you are awaiting an investigation he retaliates against you for filing a charge. The steady increase in 131 retaliation charges, which now represent over one third of discrimination complaints, likely has to do with the ten month average wait for an EEOC’s investigation. The 10 month wait is also job-killing for applicants, such as a disabled worker who is denied an interview for a job that is long since filled by the time EEOC investigates. EEOC uses 180 days as its yardstick for timely charge processing. Yet, in FY10 only 38.03% of private sector charges were resolved within 180 days, as compared to the agency’s embarrassingly low target of 48%. The agency’s most recent performance report admits that, “[t]he EEOC’s inability to meet this target was due to a large pending inventory, an increasing number of charge receipts, and a shortage of front-line staff.” Likewise, in FY10, only 37.4% of Federal sector cases were resolved in 180 days, as compared to the agency’s target of 52%. Both private and Federal sector performance in meeting the FY10 targets were actually worse than in FY09. Congress is acutely aware of EEOC’s problems, most notably the backlog. The Senate stated in the FY10 Committee Report: The Committee remains concerned at the rising backlog in charges of employment discrimination at the EEOC. This backlog is on pace to reach over 105,000 charges by the end of fiscal year 2011. The Committee is disturbed that this issue has not been addressed in a systematic or strategic manner. The Committee is concerned that there is a lack of leadership response and will at the EEOC to adequately address this problem and it could affect the ability of EEOC to meets is mission and mandate to promote equal opportunity at the workplace. In light of these concerns, both the Senate appropriations subcommittee and full committee as well as the House subcommittee approved the President’s request to increase EEOC’s FY11 budget from $367 million to $385 million. Of course, Congress and the President ultimately determined to continue funding the government at the FY10 spending levels, so the increase thus far has not taken effect. For FY12 it is critical that EEOC finally obtain the requested $385 million. Given the state of the economy, the broadening of EEOC’s jurisdiction, the record high charge filings, and the fact that the agency is sitting on a mountain of unprocessed cases, it is critical that, at a minimum, resources be maintained at FY10 levels. Requiring EEOC to operate at FY08 funding levels would mean a $40 million cut and the loss of 209 employees or 9% of its current total workforce. In its most recent performance report, EEOC concurs with AFGE Council 216 that backlog reduction will require building, not slashing, resources: Long-term efforts to reduce the pending inventory will be dependent on the agency continuing to build resources and capacity. This will allow us to get beyond managing the inventory at its current level, and working aggressively to reduce the inventory of charges so that we can serve the public more efficiently while effectively enforcing the equal employment laws of this country. 132 America’s workers cannot afford an underfunded EEOC in today’s economic environment. 2. Without Further Delays, EEOC Should Implement the Union’s National Intake Plan to Uncork EEOC’s Bottlenecked Charge Process AFGE Council 216 will lobby EEOC and Congress to implement a National Intake Plan to provide substantive assistance to the public and staff. Over one year ago, AFGE Council 216 submitted a comprehensive National Intake Plan, which continues to languish with EEOC’s leadership. The plan calls for staffing each field office with a dedicated intake model that includes a compliment of positions and grades able to advance the intake process from pre-charge counseling through charge filing, including handling the flood of mail/downloadable intake questionnaires. Current in-house call center staff could be trained and integrated into the dedicated intake units. A dedicated intake unit with national parameters would also provide a mechanism for “consistent handling of charges under PCHP [priority charge handling procedures].” In its FY10 Performance and Accountability Report (“performance report”), EEOC points to “revitalizing PCHP” as a key to backlog reduction. AFGE Council 216’s Intake Plan addresses the fact that EEOC is experiencing a tremendous influx of charges, this year receiving a record high 99,992 charges. Currently, EEOC does not have an intake model which allows its investigators to investigate, while dedicated staff handle intake. Instead, EEOC’s investigators rotate into intake, usually on a daily or weekly basis, to meet with the public and draft charges of discrimination where appropriate. When investigators are on intake, they are pulled away from investigating their caseload of discrimination charges and the intake work follows them. Increasing intake in recent years continues to mean much less time to investigate cases. This bottleneck is why the average charge processing time is over 10 months and the EEOC has a backlog of 86,388 charges. AFGE Council 216 spearheaded the successful effort that terminated a failed contract call center pilot in January 2008. Unfortunately, EEOC stubbornly stuck to the same failed model when Congress forced the agency to bring the call center in-house. Specifically, the agency hired an inadequate number of low graded employees, provided minimal training, gave them mandatory scripts to read and limited per call time limits. Instead of dedicated intake staff, EEOC’s in-house call center functions based on that failed contract call center model. Currently, the primary function of the in-house staff is to answer phones, then point callers to an on-line downloadable intake questionnaire, which is forwarded to overwhelmed investigative staff. While expanding access through technology is generally a good thing, here the public is left frustrated, because there is not adequate staff to process these new cases. 133 AFGE Council 216’s Intake Plan emphasizes streamlined substantive assistance, which satisfies the interest expressed by EEOC’s congressional appropriators to resolve a greater number of inquiries at the first point of contact. The plan is also in line with the new Congress’ emphasis on government agency efficiency. Under this cost-saving plan, investigative staff, relieved from intake responsibilities, could focus on processing cases already in the system. EEOC could then work to reduce the backlog. 3. EEOC’s Unsanctioned Field Restructuring Failed to Increase Efficiencies, Including Reducing Supervisor to Employee Ratio. Plans to Restructure EEOC’s Headquarters Should Focus Resources on Tackling the Agency’s Backlog. AFGE Council 216 will lobby Congress to redeploy excess managers to front line positions. The Council will also fight for transparency in HQ restructuring and a final plan that makes sense for EEOC’s workforce and the public. With Congress focusing on agency efficiencies and reducing backfills to one replacement for every two departing employees, it is critical that EEOC focus its limited resources on frontline staffing. The EEOC is notoriously top heavy, a point stressed by Republican leadership who pushed for a field restructuring plan, which promised to improve the staffing ratio to one supervisor for ten employees. Instead, on January 1, 2006, EEOC implemented a controversial nationwide field restructuring, without required approval from its Senate Appropriations Committee. The agency carried through with downgrading offices in cities with high minority populations. However, improving the staffing ratio of frontline employees remains a broken promise. Now in this time of heightened interest in improving efficiencies, EEOC should be held to its word to implement the 10 to 1 ratio. EEOC could do so by identifying management redundancies and redeploying supervisors to the frontline. Going forward, EEOC’s priority should be to replace departing frontline staff, rather than backfill more costly management positions. These are budget neutral means to increase frontline staff. Only by focusing its limited resources on the frontline will EEOC at least prevent the 86,388 backlog from growing larger and the 10 month processing time from getting even longer. Likewise, as EEOC continues to threaten a Headquarters restructuring, AFGE Council 216 will fight for: continued oversight, transparency, the opportunity for meaningful feedback of draft plans, and a final plan that makes sense to EEOC’s workforce and addresses the rising backlogs under which the public now suffers. 134 4. Proposed Changes to the Federal Sector Hearings Process Short Circuit Federal Employees’ Rights to Discovery and a Hearing. AFGE Council 216 will demand that before making changes EEOC comply with Congressional oversight and with any applicable agency and regulatory requirements. Like in the private sector, Federal workers are negatively impacted by the loss of staff, a growing backlog of cases and a ten month average processing time. In addition, Federal workers suffer due to existing restrictions on the authority of the EEOC Administrative Judges (AJs), who decide their cases. These restrictions impact the ability of Federal employees to obtain full and fair hearings and receive complete relief. AFGE Council 216 will continue to fight for additional resources and will support whatever changes can be accomplished under the regulation and statute to empower AJs with subpoena authority, so that Federal workers can receive full and fair hearings. AFGE Council 216 also will continue to address the loss of EEOC AJs who leave to become Administrative Law Judges (ALJs). The EEOC admits in its recent performance report that these departures contribute to the Federal sector’s failure to meet processing time goals, “the Commission’s efforts to achieve this goal have been compounded by the departure of a number of AJs who accepted ALJ positions at other agencies, which prompted the reassignment of their complaints, creating larger caseloads and further delays in complaint processing.” AFGE Council 216 will continue to urge the Chair to ensure EEOC AJs are competitive with other agencies by making career grades commensurate with the judicial independence and subpoena authority needed to perform their duties. AFGE Council 216 will also maintain pressure to backfill front line AJ positions. AFGE Council 216 will continue to oppose any proposed Federal agency pilots, which would allow for variances from the EEO regulations. AFGE Council 216 will remain vigilant that any pilots must provide for complete, timely, impartial investigations, and opt-out rights. AFGE Council 216 will continue to object to “Fast Track” or other proposals, which would remove judicial independence and cut off discovery and hearings for many Federal employees. Statements in EEOC's FY10 Budget, confirmed that, "We also plan to implement a three-track hearings case management process, wherein AJs will prioritize and track cases into fast, regular or complex discovery/pre-hearing tracks, based on the level of complexity of each case." AFGE Council 216 will monitor the status of this issue and demand an open Commission vote, as well as notice and comment periods as required by regulations. 135 The Union’s Accomplishments In 2010, AFGE Council 216 aggressively raised awareness with Congress, the civil rights community and the press about EEOC’s budget and staffing crises that threaten service to the public. As a result of AFGE Council 216’s efforts this year: 1. The administration requested a modest budget increase from $367 million in FY10 to $385 million in FY11, as a result of AFGE Council 216’s efforts to keep EEOC’s funding, staffing, and performance problems in the spotlight. EEOC’s Senate oversight subcommittee and full committee approved the request, as did EEOC’s House oversight subcommittee. However, the appropriations process affected by the election year was not completed. 2. Senate appropriators recorded their concerns in their Committee report about EEOC’s growing backlog that “could affect the ability of EEOC to meets is mission and mandate to promote equal opportunity at the workplace.” 3. AFGE Council 216 provided written and oral testimony at the House CJS Subcommittee open witness hearing. The Chairman stated that the record of testimony was “essential to the development of the fiscal year 2011 bill.” AFGE Council 216 had thrown its support behind the requested funding increase for EEOC, which was included in the mark-up. AFGE Council 216 also provided written testimony to the Senate CJS Subcommittee, which does not hold an in person hearing. 4. AFGE Council 216 launched public and members-only Facebook pages on the day of Council President Martin’s House testimony. Activity on both sites has seen steady growth. 5. AFGE filed 53 unfair labor practice complaints against the EEOC and procured a favorable settlement to address the agency’s fourth quarter implementation of unlawful production standards for investigators, mediators, and administrative judges. 6. AFGE 216 Council won motions supporting a March 23, 2009 Federal arbitrator’s ruling that EEOC had a committed a nationwide practice of willfully violating overtime laws. AFGE Council 216 recommended a claim form and claim process that was adopted by the arbitrator. AFGE Council 216 has met with the Chair and General Counsel to press the agency to do right by its employees by compensating them for their suffered and permitted overtime. 7. In response to AFGE Council 216’s relentless campaign to end a multi-year hiring freeze, EEOC began to finally replenish staffing in FY09. EEOC continued hiring in FY10, ending the year with 198 net new hires. Unfortunately, the hiring included only minimal frontline staff positions, e.g., 66 investigators and 8 mediators. 8. AFGE Council 216’s Press Release, “Top Ten Challenges for the New Chair,” was picked up by numerous media outlets and printed verbatim in the Washington Post. 136 9. AFGE Council 216 pushed Congress to confirm permanent leadership for the EEOC so that outstanding concerns that continue to impact the public can be addressed. 10. AFGE Council 216 has kept up the pressure on EEOC’s administration to act on the Union’s National Intake Plan, which is consistent with Congressional overseers' priority in resolving a greater number of inquiries at the first point of contact. Meetings between AFGE Council 216 and EEOC have occurred, but unfortunately have not resulted in any changes. 11. Due to AFGE Council 216’s efforts, Congressional appropriators included oversight requirements in the EEOC FY10 conference report pertaining to a proposed “Fast Track” system that could remove judicial independence and eliminate federal employee’s rights to a hearing and discovery. There has not been further action on “Fast Track”. 12. AFGE Council 216 provided comments in opposition to the EEOC’s Rulemaking Proposal allowing implementation of Federal EEO pilot program variances from the regulations. There has not been further action on the pilots 13. AFGE Council 216 secured a national agreement that meets its hard fought interest to have local labor management forums in each of EEOC’s 15 districts. AFGE Activists Should Urge Their Lawmakers: To increase EEOC’s budget to $385 million, consistent with the FY11 budget request which had been approved by both EEOC’s House and Senate appropriations subcommittees, as well as the full Senate subcommittee. In no event should EEOC’s resources be slashed below the FY10 level when its workload has surged. To increase EEOC’s actual staffing to 2,832 FTE’s. This was the actual staffing in 1994, the last time that charge receipts were close to the record high filings of the last three years. Restoring adequate front line staffing levels would help workers whose cases are trapped in EEOC’s backlog and are waiting 10 months to receive help. To require that EEOC hire front line professional and support staff up to its staff ceiling, instead of continuing its historic practice of leaving over 200 positions unfilled. To require EEOC to adopt a National Intake Plan to provide timely and substantive assistance to the public, including contributing to the processing of the flood of mail/downloadable intake questionnaires. To make EEOC finally compensate its employees for the agency’s willful overtime law violations, per a federal arbitrator’s final decision dated March 23, 2009. 137 To direct EEOC to keep its broken promise to increase efficiencies and flatten the agency by improving the staffing ratio to 1 supervisor to 10 employees, as promised in 2006. To require a transparent process for Headquarters restructuring to ensure that any final decisions make sense for the EEOC’s workforce and the public. To demand that EEOC comply with applicable agency, regulatory, and Congressional oversight requirements before implementing proposed Federal sector changes that could threaten a Federal employee’s right to discovery and a hearing or limit Judicial independence. 138