| Comment Number: | OL-10500479 |
| Received: | 2/17/2005 11:45:01 AM |
| 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:
I have the comments below which also lists the subpart I'm referring to. Subpart H – Appeals NSPS adopts a single standard of proof, a preponderance of the evidence, for both conduct and performance actions. Currently, managers only have to show substantial evidence, a lower standard, for performance cases. RIF’s or actions taken under DOD placement programs (including PPP) may not be appealed to the Merit Systems Protection Board (MSPB). Actions currently not appealable to MSPB remain so under NSPS. The appellate procedures of MSPB are modified substantially. The appeal filing deadline is shortened from 30 to 20 days. Neither party to an appeal may unilaterally file for additional time to pursue discovery or settlement. Either party can ask MSPB to limit discovery because the information is privileged; not relevant; unreasonably cumulative or duplicative; or can be gotten somewhere else more easily. The proposed rules also limit interrogatories, depositions, and other means for gathering facts and. Employees will not be afforded interim relief or stays of actions unless ordered by the full MSPB, not just an administrative judge. Even if the full MSPB orders an employee back to work, the Department has the sole, exclusive, and unreviewable authority to place the employee in an alternative position or on excused absence pending final disposition of the case. The parties may mutually agree to use Alternative Dispute Resolution procedures. Mitigation of MRO actions is only allowed by the Secretary. For other adverse actions, MSPB or arbitrators may only mitigate (substitute a lesser penalty) if the penalty is “wholly without justification.” This is an almost impossible standard. Currently, reasonable factors, such as the length of employment and prior record of the employee, may be taken into consideration in finding whether management has applied an appropriate penalty. Under NSPS, such reasonable considerations are out the window. The MSPB may not reverse an action by the Department due to mislabeling or characterization of the charge as long as the employee is given enough facts to respond to the charge. So if management mistakenly accuses an employee of one thing, but then claims it really meant something else, the employee is supposed to be able to figure out what management really meant, and present a good case on his or her own behalf. MSPB also may not reverse the Department’s action based on the way a performance expectation is expressed, as long as the expectation would be clear to a reasonable person. Under NSPS, managers will be expected to change and modify performance expectations all during the year. DoD seems not to want them to be held accountable for their communication of those expectations, rather, their miscommunication must be upheld by MSPB. Attorney fees may be granted when the employee prevails, but only if the action taken against the employee was wholly without merit based on facts known to management at the time it took the action. If management says that an employee is guilty, but he or she is found innocent on appeal, it can always quibble that facts came out in the hearing that it didn’t know, so DoD should not have to pay attorney fees. Once again, DoD is trying to avoid accountability for its actions. The Department will have authority to review MSPS decisions and reverse the initial decision merely by claiming impact on the Department’s national security mission, erroneous interpretation of the law, governmentwide rule or regulations. Apparently, the Department also will be granted the power to determine for itself what cases constitute precedent.