| Comment Number: | EM-017396 |
| Received: | 3/14/2005 9:09:44 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| No Attachments |
Comments:
Ladies/Gentlemen: I'd like to offer the following comments on the proposed regulations published in the Federal Register. 1. Reference Pay and Pay Administration subpart C. One of the potential strengths of the proposed system is that it could allow employees to accept reassignments for added pay. Unfortunately, the proposed regulations do not emphasize this. The proposed regulations offer little incentive for managers to make a serious effort towards implementing the NSPS pay incentives. By adding some internal competition for highly performing staff, the regulations would add an additional incentive for managers to make a sincere attempt to implement the NSPS pay reforms. For example, Sally is a highly performing worker. Another DoD activity should be able to offer Sally a significant pay increase within the same band for Sally to come join their organization. By inserting some competition in the process between activities, you add an incentive for managers to make a good faith effort to reward outstanding performance. This is how it works in the private sector; outstanding performers are able to seek reassignment or new positions for additional pay. This same dynamic should operate in DoD. I suggest the following change to the text of the proposed regulation under the paragraph entitled reassignment change the second sentence to read as follows: "If the move is not due to unacceptable performance and/or conduct, pay may be set at the existing rate of pay or at a higher rate, not to exceed the maximum of the pay band level. " Please also add the following sentence. "Managers are authorized to use increased pay, not to exceed the maximum of the pay band level, as an incentive for reassignment for those employees whose performance and conduct are considered acceptable or better." 2. Reference adverse actions under subpart G. See part entitled "mandatory removal offenses." I disagree with this portion of the regulation. There are several examples of misconduct for which DoD employees can and are removed. To take an extreme example, an employee commits an act of aggravated assault while at work. This employee should be and almost certainly will be removed even under the existing regulations. The new proposed regulations when taken as a whole remove many of the procedural barriers to terminating employees for clearly unacceptable conduct. Introducing a new category of offenses for which removal is mandatory is overkill. 3. Reference adverse actions under subpart G. See part entitled "adverse action procedures." I disagree with the reduction of advanced notice and time to reply. I don't see a compelling reason to reduce the advance notice and reply periods. There is no way that any employee and/or representative can reasonably be expected to mount a defense under an appeals procedure that only allows 5-10 days for a response. Those proposing an adverse action may time that adverse action at their convenience. The respondent cannot respond at their convenience; they're limited to a set number of days to respond. This portion of the proposed regulation should be modified to preserve the existing deadlines. 4. Reference appeals under subpart H. The proposed regulations preserve the appearance of due process including appeals to MSPB administrative judges. But the substance of the proposed regulation reduces due process rights beyond that necessary to accomplish the DoD mission. The reduction of the time period for appeal from 30 days to 20 days is unexplained; no reason for the time reduction was detailed in the proposed regulation. In addition, the discovery procedures limit the number of interrogatories, requests for production or admission to 25. Again, no reason is provided for the limitation. The proposed regulation also eliminates the ability of administrative judges to invoke interim relief measures. Instead, it requires the full MSPB to order interim relief. That insures that interim relief will rarely if ever occur in practice. The proposed regulation also reduces MSPB's ability to mitigate penalties. Requiring that the maximum justifiable penalty be applied in those (rare) cases where the penalty can be mitigated is unreasonable. If the penalty is being mitigated, I would assume that there is some compelling reason for that. Although I believe that some reform of appeal rights is in order, the proposed regulations go beyond that which is necessary. I suggest that this portion of the regulation be re-written to preserve, at minimum, the ability of administrative judges to invoke interim relief measures as well as the MSPB's ability to mitigate penalties. I thank you in advance for considering my comments.