Comments concerning: Federal Register: February 14, 2005 (Volume 70, Number 29)
Proposed Rules: FR Document 05-2582/NSPS (National Security Personnel System) pages 7552 - 7603.

SECDEF asserts the need for NSPS.  However, all the tools SECDEF claim to need already exist.  Additionally, the flexibility SECDEF desires already exists under current law and statute.  It is obvious from this document the NSPS creators do not know or have ever worked with the current personnel regulations and statutes.  These options exist now.  Failure of management to use these tools does not necessitate the destruction of decades of laws, statutes, regulations, Congressional oversight, and jurisprudence. All management has to do is learn what the rules are and how to use them.  It is not the fault of employees that management does not get the training (at a much lower cost that this exercise) it needs to do its job.  Do not punish employees because of management failure.

Reviewing this document is a frustrating exercise.  Frustrating, because there is so little to speak to, as there is little tangible in this document.  SECDEF uses the phrase, "implementing issuances," over ninety (90) times.  How can one discuss vague, untested, unproven assertions?  However, by putting out these regulations piecemeal, two factors in DoD's favor come to mind.  First, DoD can gauge the political climate as each new set of regulations is published.  Second, by delaying publishing all the regulations, fatigue sets in and the number of comments or severity of reactions are reduced.  Lastly, DoD's feigned commitment to transparency is amply demonstrated by the lack of detail in this document.

The reason civil service exists is to provide a structure to prevent abuses by management and elected officials.  How is destroying these safeguards going to be beneficial to the country and its security?  NSPS clearly takes us away from these safeguards.  For instance, if SECDEF - only - can mitigate outcomes (not the MSPB), then there is no independence of the MSPB.  If there is no independence, either by the MSPB or NSPSLRB, then there can be no jurisprudence.  Powers will be absolute in favor of management.  Since nothing may (or may not) have precedence, then everything will be de novo review by DoD management fiat.  Also, since the MSPB itself may not block DoD actions it finds incorrect without DoD permission, then there is no independence or power against management misdeeds.  This means, in practice, there is no way to stop DoD from doing what it wishes, when it wishes, and how it wishes.  Fear of retribution from above and the resulting sycophancy are the only results and will create abuses of power that can only be imagined. What does SECDEF want, Stepford workers?

If DoD cannot project the cost for the war in Iraq and needs supplemental appropriations, how can the cost for NSPS be known?  Since government salaries are at only roughly eighty (80%) percent of market salaries and if this system is to net out, how can high-performers be rewarded at market sensitive rates, unless many employees' pay is cut?  Furthermore, Congress must authorize and appropriate sufficient funds to cover the DoD budget requests for salaries.  If there is a single budget shortfall for salaries, NSPS, presently under suspicion, will not be a trusted system at all.  The only flexibility remaining will be to cut employees' (not managers') salaries, high, low, and moderate performers alike.  Is this a system that rewards anything at all?  This not only limits employee pay, but also delays rewards for an outstanding effort.

NSPS regulations were released on 14 FEB 2005.  Prior to that date, no information was released to Congress or employee representatives. PL 108-136 required DoD to include OPM in creating NSPS.  Only when Congress reminded SECDEF that PL108-136 must be followed, did DoD include OPM. Please note that PL 108-136 also requires DoD and OPM to collaborate (definition: to work together) with employee representatives. At no time has DoD/OPM collaborated with the unions.  It has dictated what and how NSPS will be.  This is bad faith and certainly not the transparency so widely touted by SECDEF in announcing NSPS.

There will be no legal right of discovery by interested parties.  DoD ensure that "alternative means" of obtaining requested information is through FOIA (Freedom of Information Act). Of course, then the FOIA official may decide not to provide the information, or provide it in a manner that is not timely to the situation.  Management can hide documents for whatever motivation they wish.  

As for communications by DoD, the NSPS Working Groups did little or no listening to anyone except SECDEF. I am a stakeholder and I was not told anything.  Period.  Until I read this Federal Register release, I did not know any details on NSPS.  Any claim otherwise is less than the truth.  The NSPS Working Groups did not reach or even attempt to reach a consensus because they had already been told what to do. Their job was to "sell" NSPS.  It was just a PR campaign without substance as there was nothing to tell until the proposed regulations were released (implementing issuances are still to come).  The only reason for those NSPS Working Groups "meetings" was to attempt to satisfy Congressional outrage over NSPS planners' failure to work with OPM and their treatment of unions and other interested parties. A track record of dictation to, rather than, working with is the norm under NSPS as we have already seen.  More of the same will be all we have to look forward to.

"...the intent is to explicitly restrict the authority of MSPB...."  This is the one time that DoD is letting us know what they are doing in a complete fashion.  The fact that MSPB can be over-ridden at will by DoD is immaterial.  The fact that MSPB must follow DoD guidance is immaterial.  The fact that MSPB will no longer be independent is immaterial.

There will be few, if any, local CBAs (Collective Bargaining Agreements).  There will be only a master agreement at the national level with only a few local agreements allowed.  However, one size does not fit all. For example, OSD (Office of the Secretary of Defense) is not the same as SIMA Pearl Harbor, or NSA Naples, or a lab facility.  Dealing with issues that affect only one or several locals may seem a waste of time to SECDEF, but these union locals represent the civilian employees who actually get the work done to support our military (regular and reserve) brethren.  There is no need to trample on decades of labor law and fundament rights granted under the Constitution and Bill of Rights (assembly, petition) and spend countless millions of dollars to change the system when all the tools, rights, and power already exist.

I am very alarmed by the proposal to broaden job descriptions.  The reason there are distinctions between closely related levels of work is detailed below.  I am a Physical Scientist with a master's degree in Marine Geology.  I have worked in my field to increase my expertise and understanding of the field for over twenty (20) years.  My specialty is making charts of the ocean floor, or in other words, bathymetry.  I am not a hydrographer, nor a geophysicist, nor an oceanographer, all of which are closely allied fields.  But, within these proposed regulations, I can be detailed to duties where I have little or no expertise. Later, I can be terminated because I could not do the job assigned outside my field.

The provisions of NSPS concerning pay will limit employees' high-end pay, even for higher than excellent performance. In private industry as SECDEF claims to want to model, an employee is given as much responsibility as possible and is rewarded for performance.  In DoD, there are technical high-grade GS employees, that is, non-managerial or non-supervisory higher graded employees.  They are there to provide management with technical expertise that would not otherwise be available.  Under the proposed pay-banding system of NSPS, these positions could not exist.  How does DoD propose to reward these employees at their high grade?  Fire them?  Demote them?  These and other similar questions must be answered before NSPS is allowed to become law.

The costs incurred by NSPS will be a duplication of efforts extant.  Extra training for management (supervisors and HR personnel) and employee to understand and use NSPS will be much more that DoD suggests.  This will result in a lack of training for all, resulting in distrust of the system, and ending in the failure of NSPS itself.  Of course, there will be a call for contracting out DoD/governmental functions because NSPS did not work and, of course, the private sector can do it better.  Additionally, any modification of existing HR/payroll systems will be done by contractors under very poorly written contracts (remember any number of these like the FERS upgrade or the still on-going FAA computer modernization) at a cost much greater than DoD claims to need.  Naturally, we must believe the administration on their cost estimate of NSPS.  This is the same administration that gave Congress such good estimates on Medicare prescription costs. 

If destroying over one hundred years of Congressional laws, regulations, and statutes, executive branch decisions, and court (Federal District, Court of Appeals, and Supreme Court) decisions do not change the distribution of power, then there is no conflict with E.O. 13132.  Additionally, if the power acquired by SECDEF under these provisions from the use of the phrase, "sole, exclusive, and unreviewable discretion" does not change the distribution of power, then there is no problem.

In closing these comments on NSPS, I leave the readers with these thoughts.  Honor, integrity, high standards, honesty, and respect are not the impressions I get from reading these proposed NSPS regulations.  SECDEF's conduct of hiding behind the too often used catchphrase of national security and hiding the truth of NSPS is shameful and dishonors employees.  And speaking of my co-workers, I find feelings of fear - fear, not of change, but of retribution against perceived offenses permitted by this document.  If this is the legacy you wish to leave to the brave, honest, hard-working men and women of DoD, then shame on you.  Otherwise, stop NSPS.  Otherwise, repeal NSPS.