Comments:

  1. "Relationship to the Department of Homeland Security," pg. 7553:   This section (and the entire proposed regulation)  fails to sufficiently recognize the distinction between the Department of Homeland Security (DHS) and DoD.  While 9/11  led to the creation of DHS as a new federal agency, so that DHS employees knew from the onset that they would come under a new and different personnel system, DoD existed long before 9/11. This places into question the necessity for such sweeping reforms for DoD, there having been no past indication nor any substantiation that the current personnel system impacted national security negatively.  Many DoD employees have many years of federal service which often includes serving their country on active duty.  Unlike DHS employees, many long-term DoD employees accepted DoD employment and stayed on, foresaking more lucrative opportunities in the private sector, in justifiable, detrimental reliance on a continued expectation that the relatively stable personnel system under which they accepted employment would continue in substantially the same way, especially as to the reliability of within-grade step increases and annual, Congressionally-determined pay raises.   It appears that DoD has simply jumped on the bandwagon of the DHS creation and reasons for its creation, and ridden on DHS's coattails in promulgating this proposed regulation which so closely mirrors the DHS regulation. To correct this fundamental defect, either this section or another, later section should provide for a "grandfathering" option to allow employees to opt out of the new system and elect to remain in the current personnel system until their retirements, at least as to the GS classification system, "pay banding," and "pay-for performance," enabling such employees to continue to receive within-grade step increases and Congressionally determined annual pay raises.  This could be effective for only certain long-term employees, such as those with 15 or more years of experience, or those 50 or over.  Precedent for such grandfathering exists in that employees covered under the older, CRSC retirement system were allowed to either remain in that system or go with the newer, FERS system when it came into being. 

  2.  "Process Leadership," pg. 7554:  Who were the "30 senior experts" who created the process over 3 weeks, what qualified them to do so, and how were they selected -- were these political appointments? 

  3. "Outreach to Employees," pg. 7556:  There was no "outreach" to me as an employee that I am aware of, unless the NSPS website which went without updating for substantial periods constitutes such outreach.  I know of no town meetings of which employees in my building were informed.   Apparently such outreach focused on union members and Washington, DC employees, and not employees in field offices such as mine.  Yet, we are still expected to come on board into the new system early on, without having had the same opportunity as other employees to provide input during town meetings and the like.  Except for one brief computer-based survey a couple of months ago which asked one relevant question, I have had not a single opportunity to provide input through any official channels until now.  The news I received was largely through the local and other press.  This makes me question the extent to which any such outreach actually occurred and whether employees were actually heard on this. 

  4.  Subpart A, Sec. 9901.102, "Eligibility & Coverage":  Add "grandfathering" option for current employees with 15 or more years of federal service or at least age 50, as stated in comment number 1 above.  Also, add provision which allows certain occupations and/or professions to qualify for exemptions, exceptions, or waivers from certain aspects of the new system, such as "pay-for-performance", instead electing either as an occupational group or as individual employees to remain under the current GS system for purposes of step increases and annual raises. For example, attorney positions should be exempt because performance is not objectively measurable and mechanisms such as "pay-for-performance" inappropriately compromise the attorney's exercise of independent judgment, discretion and impartiality similar to a judge position, with possible ethical problems under bar licensing requirements.  There could be other occupations or professions, such as law enforcement jobs, for which such mechanisms are similarly especially problematic warranting an exemption.  Also as to this section, use of "at his sole and exclusive discretion" 3 times (b, e, and f) vests entirely too much control in one individual or post and should be deleted. 

  5.  Subpart A, Sec. 9901.103, "Definitions": The definition of "implementing issuances" should include a requirement that these issuances also receive public review and comment, much like this regulation, to be legally effective.  In the definition of "mandatory removal offense," again strike the language "in his sole, exclusive and unreviewable discretion." It is overbroad, vests way too much control and discretion in one individual or post, and runs afoul of due process as such decision should be reviewable by a court. 

  . 

  6.   Subpart B, Sec. 9901.211, "Career Groups":  This is too vague, leaving one of the main NSPS components virtually undone and meaningless pending later completion of "implementing issuances."  Such issuances must also receive public review and comment to be legally effective. 

  7.  Subpart B, Sec. 9901.221, "Classification Requirements": This should specify when and how DoD "'will develop a methodology," as the impression was given that the regulation would contain this critical information that much of NSPS implementation appears to hinge on.  In addition, it should indicate how such information will be made available to affected employees. 

  8.  Subpart B, Sec. 9901.222, "Reconsideration of Classification Decisions":  Again, the "implementing issuance" referenced in paragraph b should receive public review and comment to be legally effective.  Further, the statement in paragraph (d) appears incorrect in that a court of law could act on a classification appeal. 

  9.  Subpart C, Sec. 9901.302, "Coverage" and/or Sec. 9901.303, "Waivers":  As discussed in comment number 4 above, add grandathering provisions for long-term employees and provde waivers or exemptions for certain professions, such as attorneys.

  10.  Subpart C, Sec. 9901.311, "Major Features": Again, reliance on later "implementing issuances" for this key component appears legally inappropriate unless and until the public is allowed to review and comment on those issuances  in a similar vein to this proposed regulation.  Elaboration of the details concerning pay administration was supposed to be integral part of the regulation; instead, the proposed regulation remains overly vague in that as in most other respects.  

  11.  Subpart C, "Setting & Adjusting Rate Ranges," Secs. 9901.321 - 323:  This section is entirely too vague and open-ended about how and when DoD plans to accomplish all of this in such a short time frame when apparently it still has not decided or else just is not divulging that information publicly yet in this document, although that is a major purpose of the proposed regulation.  There is no indication given nor any substantiation as to how and why "pay banding" will be any better or any les potentially arbitrary than the current GS system; if anything, particularly given the continued vagueness on this issue, the pay banding sounds like a confusing, arbitrary mess with no accountability or clarity and creating significant extra workload and turmoil for all involved. 

  12.  Subpart C, "Local Market Supplements," Secs. 9901.332 - 334:   Same comment as in 11 above basically applies.  In addition, in Sec. 9901.332(b), delete attempt to preclude judicial review as I do not think this regulation has legal authority to do so.  Further, application of the Federal Pay Comparability Act, as required but which every Administration finds an excuse not to apply, should eliminate the need for these provisions. 

  13.  Subpart C, "Performance-Based Pay," Secs. 9901.341 - 345:  This section lacks sufficient detail as does much of the rest of the regulation.  Pay-for-performance stands out as the worst element of the proposed regulation, being extremely demoralizing to current civilian employees with fallout negative effects on military members and the military mission.  It should be eliminated entirely for many, many reasons.  If retained at all, it should be kept only as a supplement to within grade increases and Congressionally-determined annual raises, not a replacement for them.  Performance-based pay would not be needed at all if supervisors and managers would instead be encouraged and allowed  to use currently existing authorities to reward top performers, including incentive awards, performance awards, and quality step inreases.

  Numerous studies, and prior attempts by various factions of government (including the federal government itself in the Civil Service Reform Act of 1978 where merit pay was eventually dropped due to less than steallr performance) as well as the private sector, show pay-for-performance does not work!  It assumes that pay raises are a primary motivator, while the reality is that they do not motivate but may actually de-motivate and demoralize the motivated.  Pay-for-performance creates unhealthy competition and sparks divisiveness, and the focus on individual performance erodes teamwork and cohesion.  It encourages employees to seek out and compete for the more highly visible or measurable assignments designed to make the employee look good to the boss, spending more time and effort on selling oneself at the expense of the team to actually accomplish work.  In the worst case scenario,  having to work side by side competing for raises can even lead to a situation where one employee refuses to help another learn or accomplish a task, because one employee's gain may mean the other's loss. 

  That supervisors/managers will have authority and discretion whether to grant raises and how much also pits employees against management and breeds an overall "us against them" confrontational atmosphere that will greatly increase time and effort spent by management AND employees on grievances, appeals, and lawsuits. It improperly assumes that supervisors/managers are inherently superior to employees and capable of judging the employees they supervise, when in many cases in the DoD personnel structure, the supervisor is primarily just someone in the same occupation who wants to supervise to get a higher grade or because he or she more enjoys controlling others.  Often there is simply not the difference in levels of education, expertise and even job status between employees and supervisors in DoD as

  exists in the corporate world that pay-for-performance supposedly emulates.  Further, many DoD civilian supervisors as well as active duty personnel supervising DoD civilian employees lack any background or training so as to afford any credible or fair basis for doling out raises with taxpayer money.  I have seen the abuse that occurs when supervisors are  afforded the authority to grant awards, including on-the-spot awards, which often appear given to reward employees for relatively minor, often social accomplishments that the boss simply likes at the moment -- or even because a boss may even be more intimidated by a more dominant employee who has perhaps worked in the office even longer than he has or is known to possess special expertise or personal contacts.  I have seen some of the same apparent abuses applied to such matters as attendance at training and conferences.  And I fear and believe the same human nature, to reward and cater to what and who you like and fear to the detriment of perhaps less dominant, bullying  or ingratiating employees whose work performance may actually be superior, will govern pay raises under pay-for-performance.  

  Pay-for-performance assumes there is a difference between performance that can be measured and that measurable objectives exist.  However, many jobs, especially professional positions involving significant exercise of judgment and discretion, and/or that deal with intangible issues, are much more difficult to measure than others (for example, attorney, labor relations specialist, public affairs specialist).  Equalizing employees' opportunities to do the things that get them pay  increases stands out as especially problematic for many jobs in government/DoD, where "rain-making" has not heretofore been as critical as in the business world.  Some DoD employees,such as me, opted to work for the federal government partly for that reason, and now this also appears ready to change with rain-making elevated to critical if one wants any pay raise at all.  Jobs which depend heavily on customer-driven needs which the employee cannot foresee or plan for, as many DoD jobs are, do not lend themselves well to pay-for-performance as the employee lacks control over  the timing, volume and type of work and cannot really improve performance on his or her own.  Pay-for-performance leads to finding things to count instead of things that actually contribute to mission accomplishment, creating a tradeoff between quality and quantity and encourages employees to focus on the short-term.    It tends to lead people to link performance with political skills, salesmanship, and gratiating personalities. 

  Pay-for-performance appears especially ill-suited to government application, as many government employees tend to work for public service reasons and there is no profit to which employees' contribution can be measured. Government supervisors do not own the taxpayers' money they are doling out for raises, unlike the owner of a business who has more right to spend the money on raises or not as he wishes.  Managers and supervisors may wind up getting raises based on NOT giving raises to employees, which seems counterproductive to the entire system but a likely result given budget constraints and managerial reluctance to stick out one's neck to spend money.  

  Pay-for-performance diverts time, money and focus from other, mission-related matters and actual job performance, causing undue attention to how one looks and whether one will get a raise.  It promotes economic insecurity of employees who will not know when or if they will ever get a raise again.  It appears to be a scam to reduce federal pay overall.  The section is silent on whether employees will be informed of what their colleagues are receiving.   Since most employees operate under the premise that their ratings and awards are private, many will expect continued privacy; however, to allow any monitoring of how effective the system is, whether it satisfies the "transparency" requirement of the NSPS statute, to enable any disclosure of  whether discrimination results, and for there to be any degree of financial

  accountability for DoD expenditure of taxpayer money, the regulation should provide that pay raises are public information and releasable under FOIA and the Privacy Act.  Pay-for-performance increases personnel costs.  It ignores pay parity between military and civilian salaries as Congress has strived for and generally obtained in recent years.  That, and the lack of any plan to similarly require it for military personnel, will create a rift between civilain employees and their active duty colleagues, tending to harm national security as well as degrade morale. 

  Pay-for-performance will tend to put larger raises into the hands of those who control the money already, larger commands or headquarters offices, jobs more business-related where contribution to the bottom line is more easily discernible, and jobs more obviously closely aligned to the war-fighting misssion, such as weapons development.  By contrast, employees in smaller field offices less able to fight for the money will likely receive less, despite their actual performance.

  Pay-for-performance breaches an implied contract for current employees who may have decided to work for DoD and retire from it with reasonable detrimental reliance on the continuation of the previously reliable pay raises and step increases, foresaking other opportunities in the private sector.  Pay-for-performance encourages violation of overtime laws and regulations by inducing employees and managers to assume that if an employee works longer that means he/she is working better, warranting a larger raise.  There is no indication that raises will actually be funded from one year  to the next. 

  Pay-for-performance rolls back the civil service system to a time of political patronage and cronyism since it stands out as primarily a far right wing Republican program likely to be used to reward loyal Republicans and punish Democrats and union members. A letter dated May 13, 2003, from four ranking members of committees charged with overseeing DoD, all Democrats,  to US House of Representatives Speaker and Democratic leader, stated that NSPS would give  "unprecedented discretion to the Secretary of Defense to undo, in whole or in part, provisions adopted over the past century to ensure that our federal government does not become a patronage system."  They noted it stands out stands out as part of  broader pattern to gain exemption from Congressional scrutiny.  Nowhere does this come more obviously into potential play than in the pay-for-performance component of NSPS, where DoD supervisors are given virtually unfettered power to grant or deny raises to employees rather than Congress granting them as has currently done for many years.  In the letter, the members opined that adoption would amount to a dereliction of Congress' Constitutional responsibilities because the program would significantly curtail Congress' ability to monitor the spending of taxpayer dollars at the Defense Department, citing Article 1, Section 9, Clause 7 of the US Constitution (the "Accountability Clause") which states: "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; and a regular statement and Account of the Receipts and Expenditures of all Public Money shall be published from time to time." 

  Finally, in that pay-for-performance will tend to reward  younger personnel more often and faster through the developmental levels anticipated, impliedly in some cases at least partly simply by attendance at training courses already mastered by more senior personnel or not even available to such senior personnel previously or now, pay-for-performance also appears to be a way to mask age discrimination and will result in or promote same, leading to poorer quality of work, degraded morale, and lawsuits.  

  14.  Subpart C, Sec. 9901.342(b), (c) & (d):   Again, the "implementing issuances" reference is vague, delaying until later what should appear in the proposed regulation; such issuances must receive public review and comment similar to this regulation to be legally sufficient. The same applies to the reference to DoD establishing a methodology that "authorized officials" will use to determine the value of a perforamnce share.  When and how will this methodology be adopted?  It

  should appear in this regulation and be subject to public review and comment.  Who will qualify as "authorized officials"?  It is too vague as well. 

  15.  Subpart D, Sec. 9901.405, "Performance Management System Requirements":   Reference in paragraph (a) to "implementing issuances" is too vague; such issuances must be transparent and subject to public review and comment.  Included should be express requirement that persons in regulated/licensed professions, such as lawyers and CPAs, be rated only by others holding the same credentials/licensing (so that a budget director is not rating a lawyer, for example, but only another lawyer is doing so). 

  16.  Subpart D, Sec. 9901.406, "Setting & Communicating Performance Expectations":  In paragraph (b), the language "professionalism and standards of appropriate conduct and behavior, such as civility and respect for others," is so vague  and subjective as to render it virtually meaningless; it should be deleted, particularly the word "appropriate." 

  17.  Subpart D, Sec. 9901.408(a) & 409(i): Again, the references to later "implementing issuances" are too vague and leave too much open to later determinations.  The issuances must receive public review and comment. 

  18.  Subpart F, "Workforce Shaping," Sec. 9901.606:  If DoD is really serious about relaxing burdensome and senseless rules and distinctions, this section should finally eliminate the arcane, outdated distinction between excepted service and competitive service for purposes of competitive groups for RIFs, allowing excepted service personnel (who nowadays compete for their jobs at least as much as competitive service employees do, there being no civil service tests for competitive service and with excepted service personnel having to generally complete KSAs and the like to the same extent) into vacant competive service jobs for which they are qualified.  

  19.  Subpart F, "Workforce Shaping," Sec. 9901.607:  Retain current provisions affording more credit for years of service than performance ratings.  Otherwise, based on a whim or a liking by a supervisor for a younger employee, a younger employee with a higher rating could be retained over a more senior employee.  This opens up the possibility that some commands or supervisors, hoping to cull out older employees nearing retirement to save on retirement costs or possibly more sick leave necessary as the older employee ages, or simply to make room for a younger and perhaps more malleable workforce, could decide to RIF many or all older employees.   

  20.  Subpart G, Sec. 9901.712, "Mandatory Removal Offenses":  The Mandatory Removal Offenses (MROs) must be subject to public review and comment much as this regulation. Paragraphs (a) and (c) granting the Secretary complete and unreviewable discretion goes way too far in giving one person or post control and runs afoul of due process and other legal requirements.  Especially as open-ended as this regulation leaves it now, the concept appears frighteningly likely to lead to insertion of far right wing political values and religious beliefs being inserted with possible violations of constitutional law and civil liberties; for example, swearing arguably could appear as an MRO, which fundamentalist religious groups might well like to have declared illegal and/or an MRO but other employees would not.    This section should be eliminated altogether.  If retained at all, the offenses must not only be put out for public comment but should be limited to violent and other very serious offenses normally considered felonies.  

  21.  Subpart H, Sec. 9901.807, "Appellate Procedures": In paragraph (k)(3), the limitations on discovery, such as permitting each party to submit only one set of interogatories, one set of requests for production, and one set of requests for admission, with interrogatories not exceeding 25, and allowing only 2 depositions, should be eliminated.  It inappropriately values speed over justice and doing the right thing.  The limitations will apply to DoD counsel trying to win  a case as much as to employee or employee's counsel.  The limitations are arbitrary, unreasonably intrude on the professional judgment of atttorneys, hinder truth-finding and accurate, and failure to distinguish between complex cases and simpler ones.  Further, whereas other provisions tend to try to reduce the power of MSPB judges over DoD decisions

   and cases, this provisions actually increases the authority of MSPB judges by requiring DoD counsel/representatives to have to beg MSPB judges for permission to conduct additional discovery.  This provision is likely to lead to DoD losing cases! 

  22.  Subpart H, Sec. 9901.807(k)(6): The provision disallowing mitigation unless such penalty is so disproportionate to the  basis for the action as to be "wholly without justification" simply goes too far, effectively gutting mitigation at all even where DoD may have acted illegally or exceeded its authority.  It should be changed to "without substantial justification" or a similar, less onerous standard. 

  23.  Subpart H, Sec. 9901.807 (k)(8), (9), & (10):  This section has not even identified yet what entity in DoD will be making these important decisions.  It should do so.  Further, the acting authority must be legal counsel since the actions entail the practice of law and involved deiciding whether judges/lawyers have applied law correctly.  In addition, the DoD deicions should be published where DoD counsel can review them.

  24.  Subpart I, Labor-Management Relations, Sec. 9901.903, "Definitions":  More specifically define "confidential employee" as current definition uses the word confidential, begging the question and leaving this too vague.  Also, in the definition of "management official", delete "or who has the authority to recommend such action", as recommending is basically advisory and not an actual management function, lacking any actual authority over funding, supervising others, or other decision-making.  

  25.  Subpart I, Labor-Management Relations, Sec. 9901.911, "Exclusive Recognition of Labor Organizations":  Delete  (b)(4) prohibting attorneys from being in a union.  This is blatant discrimination against one particular profession that the current Administration dislikes: attorneys, as shown for example by the dismantling of an attorney union at the Department of Justice when attorneys were being made to routinely work overtime without compensation.  This distinction violates attorneys' legal rights under labor law and the Constitution.  It is utterly unwarranted and arbitrary and,  I believe, illegal as the regulation is trying to legislate what Congress hasn't.   There is authority in other public sector jobs for attorneys to unionize, such as other federal agencies (I believe that FLRA and EEOC attorneys are largely unionized), city and county governments and Administrative Law Judges (who must also be lawyers).  Unless the attorney is actually a supervisor/manager himself, there is no viable legal basis for isolating upon attorneys and depriving them of their rights to bargain collectively. Most DoD attorneys are only GS-11's, 12's, 13's and 14's subject to the same rules and pay as others in those grades, and subject to time cards and work hours much as hourly employees. I see nothing better coming out for attorneys in the proposed regulation to indicate that attorneys enjoy a better status than other DoD employees. This provision automatically puts attorneys in a worse position. If anything, attorneys already have fewer rights and benefits than most other GS employees in that they do not qualify for Priority Placement/stopper list in a RIF or usually any bump or retreat rights enjoyed by competitive service, veterans preference (sketchy, unreliable and questionable as applied to attorneys), overseas return rights, and many automatic training opportunities such as those enjoyed by acquisition personnel. In any case, attorneys already qualify as "professiona;s" under (6) (what is more of a professional than a licensed person with a higher level education, such as attorney, doctor, CPA?). That coverage has served DoD adequately for years and can continue to without the need for this glaringly vindictive (and maybe jealousy over attorney intellect and fear that attorneys will actually use some of that intellect to finally organize collectively once their direct supervisor gets to decide their pay raises?)