Comment Number: OL-10502981
Received: 3/3/2005 3:37:33 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:

‘‘Comments on Proposed NSPS Regulations—RIN 3206–AK76/0790– AH82.’’ Comments regarding Summary: “NSPS aligns DoD’s human resources management system with the Department’s critical mission requirements and protects the civil service rights of its employees.” It is impossible to determine what is meant by “aligns” as the use of that term here is undefined and has no qualitative or quantities measure associated with it when used to describe NSPS in relation to mission requirements. Perhaps it would be helpful to list those critical mission requirements and then demonstrate how the NSPS as a process serves to meet the mission requirements. The unspoken assertion is that this NSPS process is better than the previous process, and that has yet to be proven with any measure. The assertion that NSPS “protects” the civil service rights of it employees is at best misleading and is at least deceptive. The NSPS redefines those rights as well as the processes used to “protect” them. I believe that this is the foundation of several lawsuits that are being filed as well as protests by various congressmen. The following excerpt from the 15 February 2005 FederalManager E-Newsletter describes this condition further: Unions are particularly angry that the proposed rules significantly narrow employees’ rights to collective bargaining, and have vowed to fight the rules in federal court. The American Federation of Government Employees (AFGE), together with the Association of Civilian Technicians (ACT), the Laborers International Union, the National Association of Government Employees (NAGE) and the National Federation of Federal Employees (NFFE), say they are filing a lawsuit in federal court challenging the new work rules. They charge that in defiance of the U.S. Congress, DOD refused to consult with the unions that represent the department’s employees, as called for in the legislation that authorized the creation of the new personnel system, and proceeded to issue the proposed rule changes in violation of the Defense Authorization Act for fiscal 2004. AFGE also alleges that the proposed regulations revoke most employee due process rights, render whistleblower protections moot, allow supervisors to punish employees “in their paychecks,” create a pay-for-performance system that pits employees against each other for pay increases, and end all meaningful collective bargaining. With respect to reductions-in-force (RIFs), AFGE notes that under the proposed rules, a 1-year employee with an “outstanding” rating would be retained over a 20-year employee with an “excellent” rating. The “case for action” argues that the NSPS is a key Pillar of the DoD Transformation efforts – a new way to manage its civilian workforce. Further a case is forwarded that argues that the DoD Transformation must include a new personnel system whose goals are to: 1) promote working and managing creatively to achieve real results 2) that recruits, hires, rewards and promotes civilian employees that anticipate the future and wherever possible help create it Given the wording of the “case for action”, it is the duty of the Department to seek development of new capabilities to meet tomorrow’s threats as well as those of today. This is not a requirement for the full and broader set of all civilian employees such as those performing maintenance or administrative work, but rather of a select subset of the civilian employees and therefore is not a generalized requirement that can or should be designed in to a process designed to manage the entire civilian workforce. The DoD should remove from their “case for action” any generalized requirement for the NSPS or any other robust and overarching personnel system to “recruit, hire, reward or promote” civilian employees based on knowledge, skills or abilities to develop new capabilities to meet tomorrow’s threats as well as those of today. In the argument for “case for action” it is stated, “NSPS is essential to the Department’s efforts to create an environment in which the total force, uniformed personnel and civilians, thinks and operates as one cohesive unit. “ For anyone who has studied organizational and or communications theory, it is easy to see that this “vision” is utopian in nature and totally unachievable. No organization that remotely approaches the size of the Department of Defense has any hope of ever thinking and operating as one cohesive unit as that requires seamless, instantaneous, and error free communication. This is something that is not even remotely possible given the nature of human beings, language barriers, and the state of our technology. The DoD must redefine the environment for operation of the system to one that is realistic. In the “case for action” the statement is made that the civilian workforce must be an “integrated, flexible, and responsive part of the team.” I could not agree more. It must also then be assumed that as a member of a cohesive unit, as a member of a bigger team that some fundamental rules of commonality must exist. It is recognized that various members of the team have different functions, perform different tasks and are expected to deliver different products, but in the end integration, flexibility and agility are fostered by breadth of experience, redundancy and interchangeability. However, NSPS appears to drive difference among the workforce, to draw lines of demarcation and to apply rules that seek to segregate rather than integrate. NSPS concepts such as unequal locality pay at a single location based on something like professional series, market conditions, and the like serves to divide and will result in escalating feelings of animosity and the establishment of classes of civil service employees that goes counter to the concepts of teaming and integration. People are not going to have to know the exact pay of someone else to know that their pay band is defined differently than someone else’s. There is no argument from me that the existing personnel system is old, been made non-responsive and should be fixed or replaced. Many credible arguments for this can be made and examples abound. But it should also be recognized that part of the failure of the current system is a result of management reluctance or ignorance of the existing systems capabilities and legal interpretations or precedence which have watered down the effectiveness and intent of the existing system. NSPS must be designed to address this issue or it too will suffer the same fate. The existing language in the NSPS address what will be precedence setting and what won’t be is pejorative and inappropriate. In the “case for action” the current system is defined as having the following systemic problems: 1) Pay and the movement of personnel are pegged to outdated, narrowly defined work definitions, 2) Hiring processes are cumbersome 3) High performers and low performers are paid alike 4) The labor system encourages a dispute-oriented, adversarial relationship between management and labor. It is presumed that the designers of the NSPS system suppose that NSPS will not suffer from these systemic problems. But let us consider each of these. 1) Pay being pegged to narrowly defined work definition – Given today’s personnel system, position descriptions can and sometimes do cover more than one GS grade, particularly in developmental assignments. Thus banding is possible today. The current systemic problem is with the interpretation of current policies as applied by classification specialists in HR and could be solved without significant change to the process but by reinterpretation of the implementation of the current process. Reset precedence to zero and start over. Or using one of the existing demonstration programs that use pay banding is another viable alternative. 2) The hiring process can sometimes be cumbersome but most often this is an excuse used by managers who do not understand the process and delay getting involved in an area that is not their expertise. This accounts for most of why their actions take so long. Most delays in the current system are with wait time that could be improved through better training, better staffing in HR, and disciplining supervisors who delay reviewing resumes & certifications, delay conducting interviews, delay making a decision, or who have so narrowly defined what constitutes an acceptable recruit that they won’t hire anybody who is not a 4.0 graduate or internationally recognized in their field. 3) High performers and low performers are paid alike – This is a management issue not necessarily a personnel system issue. At least part of the issue is related to supervisors not using the latitude that is currently available to them and therefore is not a processes systemic problem. This is also an execution problem that has gone unchecked. Any supervisor today can provide awards to pay one person more than another, can provide higher performers with out-of-cycle quality-step increases, and can motivate low performers by moving them to a job commensurate with their demonstrated capabilities, demoting them or having their pay reduced to zero by following through with an inadequate performance termination. 4) By their very nature, disputes that are allowed to be aired are adversarial with one side taking a position different than the other side. Disputes between management and labor will continue regardless of the personnel system because the systemic problem here is that we have people interacting with one another and people have differences of opinion, feelings, emotions and pride driving their interactions. Eliminate the people and the personnel system can operate just like redundant computer systems that poll interfacing redundant systems for response and use binary logic to resolve conflicting inputs. Until then, and as long as our personnel system is designed to manage people, disputes will remain adversarial and the system must be designed to operate within that environment. Suggestions that the environment can be change through the implementation of a new personnel system demonstrate a lack of awareness about the human condition. Again, the systemic problem that results in labor relations disputes being adversarial is not a personnel system problem but rather a people issue driven by democratic values of due process, rules of evidence and ideals of impartial judges. NSPS seems to usurp these values or at least values them less than the current system and will therefore be resisted. The “case for action” states, “The Department’s 20 years of experience with transformational personnel demonstration projects, covering nearly 30,000 DoD employees, has shown that fundamental change in personnel management has positive results on individual career growth and opportunities, workforce responsiveness, and innovation.” Interestingly, no data is provided that supports that these demonstration projects have delivered the positive results indicated. Additionally, data and assertions that recognize the deficiencies with these demonstration programs, such as significant pay creep resulting from pay banding and increased delays in annual feedback resulting from the implementation of Pay Panels, are not offered or acknowledged. Finally, I find it extremely difficult to accept the virtues of the Departments demonstration projects when this new NSPS system is not modeled more closely on any one of them. It is apparent from the Federal Register that it is the Departments position that the NSPS was developed in collaboration with employees and employee representatives. First and foremost, at no time have I, or any other Department employee I know, been given any opportunity to provide meaningful input to the design of NSPS. Through this Federal Register process I now have a singular opportunity to comment on the details. However, I do not believe this was the intent of Congress when it called for a collaborative process to be used. I now have the same opportunity to provide inputs as any person on the street and do not find this to be a collaborative process. I can only hope that these comments provided in response to the Federal Register will be addressed better than the comments provided during the public comment period for the Base Realignment and Closure criteria where nothing changed as a result of ~300 comments. It is also clear from reading the 15 February 2005 FederalManager E-Newsletter referenced above, that employee representation groups are not in agreement that they have been included in a collaborative process as they enter in to an adversarial period of legal wrangling and lawsuits against the Department and the Secretary of Defense. It is for reasons like this that I do not believe the assertion of collaboration with employees or employee representation groups is valid and have reason to question the entire credibility of the Departments claims with regard to the NSPS. The “case for action” asserts that the need for a personnel system that provides flexibility is nothing less than an absolute requirement. However, the term flexibility is not defined or bounded. Flexibility without bounds is an open invitation to abuse and can not and should not be tolerated in the Department particularly given the Departments senior leaderships ethical lapses, conduct and abuse of power as repeatedly and recently demonstrated by the acquisition reform community (also read that as Transformational community) and their champions. I believe Ms. Druyan was a big proponent of undefined flexibility. Again the “case for action” states, “NSPS is designed to promote a performance culture in which the performance and contributions of the DoD civilian workforce are more fully recognized and rewarded. The system will offer the civilian workforce a contemporary pay banding construct, which will include performance-based pay. As the Department moves away from the General Schedule system, it will become more competitive in setting salaries and it will be able to adjust salaries based on various factors, including labor market conditions, performance, and changes in duties. The HR management system will be the foundation for a leaner, more flexible support structure and will help attract skilled, talented, and motivated people, while also retaining and improving the skills of the existing workforce.” These are predictions and can not be stated as fact as the NSPS has not been implemented and there is little or no quantitative or qualitative data supporting these assertions. Further, it appears that these things are the requirements of NSPS and should be rewritten as requirements as follows: 1) Provide a system of performance based pay 2) Provide a system of innovation based pay 3) Provide a system of results based pay 4) Provide a system that offers competitive salaries 5) Provide a system where salaries can be adjusted based on several factors such as a. Labor market conditions b. Performance c. Changes in duties 6) Retain the core values of the civil service You will note that items 1, 2, and 3 may live in conflict. However, in the Federal Register, in the “Case for Action,” all three of these systems are requirements. Definitions for how these are related could result in one or more of these types of basis in pay being sub-factors under one of the others, but without definitions, more clarification is required. Suggested measures of performance of this new system should be: 1) It attracts skilled, talented and motivated people (both subjective and objective measures). 2) The personnel management system will result in a XX% reduction in the current human resources workforce when all human resource workforce requirements are staffed at 100% of the requirement. 3) The number of specialty types (series) as well as the number of unique position descriptions will be decreased by XX% or will result in no more than XX required series and XX position descriptions to meet the full HR system and Departments mission requirements. 4) Improves retention to XX% or decreases attrition to XX% 5) Improves the skills of the existing workforce (I have no idea how a personnel system will achieve this or measure it objectively) Towards the end of the “case for action” the statement is made that “The system will retain the core values of the civil service and allow employees to be paid and rewarded based on performance, innovation, and results.” These things need to be included as requirements of the new personnel system and should be included explicitly as requirements as I have done above. Overall, the “case for action” is poorly articulated and fails to lay out the requirements in a credible, believable way. Comments regarding Relationship to the Department of Homeland Security It is impossible to ignore that the Department chose to model its NSPS system after an unproven and untried system such as that developed for the Department of Homeland Security. The Department has acknowledged that it has several demonstration projects underway, some that have been in place for ~20 years. How the Department can ignore its own experience and fail to build on demonstration projects it has seen fit to both initiate and extend is unconscionable. The Department must explain its rationale for modeling its own personnel system with that of the higher risk Department of Homeland Security personnel system when it has lower risk and operational demonstration projects from which it could have chosen to modify, fix and or expand. Such explanation is not found in the Federal Register and the existing demonstration projects are barely acknowledged. It should also be acknowledged that the demonstration projects are not without fault and modifications or improvements could be made or phased in. Comments regarding Authority To Establish a New HR System Under the “Authority to establish a new HR system” the Federal Register states, “NSPS allows the Department of Defense to establish a more flexible civilian personnel management system that is consistent with its overall human capital management strategy.” The overall human capital strategy is not present and it is impossible to evaluate this claim of consistency without it. Further, the human capital strategy should be an outcome of the Quadrennial Defense Review (QDR) which is only now just underway. Consequently I can only assume that if a human capital management strategy is in existence, and if it were used in the development of the NSPS, that this new personnel system is designed around a dated strategy that may change significantly over the next several months. A delay in implementation and future review of the NSPS should be accomplished once results of the QDR are known and the human capital management strategy is updated in accordance with the QDR outcomes. Under the “Authority to establish a new HR system” the Federal Register states, “NSPS will make the Department a more competitive and progressive employer at a time when the country’s national security demands a highly responsive civilian workforce.” Assertions on the competitiveness of the Department as an employer under NSPS are unfounded as no measures have been taken and the system has not been deployed. This is marketing and a commercial – but I am not buying it. Further, based on the acknowledged similarities with the Department of Homeland Securities (DHS) personnel system, the best that can be said with certainty is that the Department’s system might be competitive with DHS, but DHS probably has the advantage as they have a head start on implementing over the Department of Defense. All claims of what the system will do are without merit or proof and are conjecture based on educated guessing and I am betting little to no operational research or analysis has been accomplished. Comments regarding Process – Leadership There is no indication of employee or employee representatives being involved and collaborating in the Leadership process. In fact, there is explicit evidence and an overt omission that consensus building at the decision making level was not used. Comments regarding Guiding Principles and Key Performance Parameters The Guiding Principles are good and should be kept. Key Performance Parameters (KPPs) 1) High Performing: Employees/ supervisors are compensated/retained based on performance/contribution to mission This KPP may be testable by selecting the appropriate dependent and independent variables and tracking the data over time, however goals must be established requiring an improvement over current conditions and those goals should be tied to requirements. Measurement of improvement over the current system will also require baselining the current systems performance, at least with respect to the ability to retain employees and supervisors. 2) Agile and Responsive: Workforce can be easily sized, shaped, and deployed to meet changing mission requirements If I, as a trained acquisition person, were to write a new aircraft KPP that said the aircraft had to be easy to get in to, go fast and carry lots of stuff (analogous to this KPP for NSPS), I would be laughed right out of the acquisition community. This KPP is ill defined and untestable. 3) Credible and Trusted: System assures openness, clarity, accountability and merit principles See comment above regarding ill defined KPPs 4) Fiscally Sound: Aggregate increases in civilian payroll, at the appropriations level, will conform to OMB fiscal guidance, and managers will have flexibility to manage to budget Specific flexibilities must be identified and the “managers level” for assigning accountability for the KPP must be identified. 5) Supporting Infrastructure: Information technology support and training and change management plans are available and funded Must be rephrased to be consistent with full funding precepts of current acquisition policy – recommended rephrasing: “Information technology support, training, and change management plans are approved, delivering on baselined capabilities, on schedule, and are fully funded (100%) for threshold funding levels and capabilities.” 6) Schedule: NSPS will be operational and demonstrate success prior to November 2009. Success must be defined with specific threshold and objective requirements identified. This must be part of the design process and should be derived from user requirements (requirements traceability). What constitutes success? Failure to define specific requirements now for what constitutes success, including interim milestones, will result in conjecture and argument without end come November 2009. Without these specific success milestones being defined, the NSPS is not ready for fielding. Comments regarding Working Groups There is a reference that “Over 120 employees representing the Military Departments (Army, Navy, Air Force), the other DoD Components, and OPM began the process of identifying and developing options and alternatives for consideration in the design of NSPS.” No statistical evidence is provided that this group of 120 employees statistically represents the composite makeup of the Departments civilian workforce. In fact there is not a caveat that these ~120 did not include contractors or military members. For this NSPS effort to be considered a collaborative effort with the employees of the Department, a statistically representative set of employees would have to be selected and participate in the design and development processes. As this level of information is not provided, it should be further considered that the design and development effort is not in compliance with the intent of the legislation. The Department should standup a team of representative civilian employees from the Department and use them to review and or modify the existing plan under the guidance of the PEO to comply with the legislation without having to start over. Even the use of town hall meetings does not constitute employee involvement. In most cases these meetings were status updates and explanations of what had, or had not, been accomplished to date. Question and answer sessions were often unrewarding and uninformative for the audience as many of the answers provided were “we don’t know yet”, “we have not done/designed that yet” or “we will get back to you on that”. Rarely were ideas solicited nor was the environment conducive to providing detailed analysis and input sufficient for collaborative design. There is little evidence that feedback from these town hall sessions had any impact on the resultant design of NSPS. Comments regarding Option Development Process I was happy to see that the NSPS is not a product of consensus, but I do not believe that was the intent of Congresses requirements for collaboration. It is important to recognize that a system can not be optimized around every variable and that each part must support the greater good of the whole rather than trying to make every piece the best piece it can be. I am confident that such a process took great courage and great leadership. It is also comforting to know that the working groups looked at and considered the integration points, but only if the advice in this area was used by the decision makers. Hopefully these integration points were given the highest consideration when evaluating various options for the final composite system. There must be explicit and incontrovertible evidence that the working group options selected by the leadership and integrated into the final NSPS have been selected assuring quantified and low integration risk. Comments regarding Outreach The two-way communications tool for the workforce, a web-site, offered little or no detailed information on the design activities of the work groups, the design details of the NSPS during development or the design details of the various options. Without such information the ability to use this two-way communications tool to provide collaborative feedback on the design of the NSPS was impossible. The first look the field level employee had to see the details of the NSPS has been through the release in the Federal Register. Again, this web-site falls far short of meeting both my requirements for and what I believe was the intent of Congress in requiring a collaborative design effort. Comments regarding Outreach to Employees “Over 10,000 comments, ideas and suggestions received during the Focus Group sessions were summarized and provided to NSPS Working Groups for use in developing options for the labor relations, appeals, adverse actions, and human resources design elements of NSPS.” There is no indication that the comments, ideas or suggestions were used in the final design or had any bearing on the leadership’s selection of options. Having held meetings, collecting comments and even turning them in to options is of little or no value if the options ultimately selected for inclusion in the NSPS are non-responsive to those who provided comments and represented the workforce. The leadership has already indicated that their decision regarding selecting options was not based on consensus. It could be extrapolated that the inputs and findings from the focus groups did not have the collaborative influence I believe was intended in the legislation. I suspect that the public comments, and the number and flavor of them coming back from current Department employees, should help to substantiate claims that the process has not been collaborative enough. Overall, the Outreach effort did result in many contacts; however careful reading of this section clearly indicates that that detail of the design and of the various options was not presented to employees, employee representation organizations or other stakeholders. Without such detail it is impossible for these individuals or groups to have provided meaningful detailed feedback on the design or otherwise influence the design. Reporting status rather than content, process not product, organizational construct rather than design detail has in my opinion not resulted in a collaborative process, effort or product. Talking to people is different than involving them or engaging them in a collaborative effort. I also happen to agree with another comment I found in the media. "The notion that collective bargaining rights somehow threaten homeland security, I find offensive."-- Sen. Frank Lautenberg, D-N.J, on the DHS personnel system. Another perspective on the current systems ability or inability to be used to remove an employee for performance is found below. Note that the current system supported the management’s ability to remove an employee for performance when reasonable people believed that the supervisor had done his job in setting appropriate expectations and the employee had not met the supervisors expectations. From: FedManager: Tuesday, February 22, 2005 CASE LAW UPDATE – EMPLOYEE FIRED FOR NUMEROUS ERRORS COULD NOT PROVE AGENCY’S PERFORMANCE STANDARD WAS IMPOSSIBLY HIGH WHEN CO-WORKERS MET THE STANDARD An employee who was fired from his job because he committed numerous errors could not prove that the agency’s performance standard was impossibly high because the agency provided evidence showing that his co-workers met the standard, the Federal Circuit ruled recently in an unpublished decision. In this case, the employee worked for the Army as a GS-4 Medical Support Assistant/ Medical Clerk (Data Transcribing). He was assigned to the Patient Appointment Section of the hospital at Fort Hood, Texas, where approximately 90 percent of his duties consisted of receiving telephone calls from patients requesting appointments and booking those appointments into an automated appointment system. On July 1, 2001, the employee’s supervisor provided him with a checklist and a handout that described his performance plan for the next 12 months. Included in the performance plan was an “Accuracy” task that allowed him to make no more than 4 errors during his one-year rating period in order to receive a rating of “Excellence” or “Success” for that task. However, in the first two months of the rating period, the employee reportedly committed 19 errors, prompting his supervisor to place him on a Performance Improvement Plan (PIP). When the employee showed no improvement and continued to make numerous errors, he was removed from his position. He appealed to the U.S. Merit Systems Protection Board, but the Board upheld the removal. The employee then appealed to the Federal Circuit. Before the Federal Circuit, the employee argued, among other things, that because the checklist used the term “responsibilities” instead of the term “critical elements” in describing the standards used to evaluate his performance, the position description and performance standards failed to inform him of what constituted critical elements. The appeals court, however, dismissed that argument, explaining that the checklist and the accompanying Army regulation made it clear that the consequences of failing to meet the requirements of one or more “responsibilities” were identical to the consequences of failing to meet the standards of one or more critical elements. The employee then argued that the Army’s performance standards were “absolute” and did not permit an accurate evaluation of his job performance on an objective basis, as required by law. The court responded by stating that there is no general prohibition against “absolute” performance standards, as long as the standards are “reasonable, based on objective criteria, and communicated to the employee in advance.” Here, the employee claimed that the standard of no more than 4 errors per year was unreasonable because it “could not be achieved by anyone.” But the Federal Circuit found that the evidence did not support the employee’s assertion. In fact, stated the court, the agency produced evidence to show that none of the employee’s similarly-situated co-workers had committed more than 4 errors during the year-long rating period. Accordingly, the Federal Circuit concluded that the record showed that it was not unreasonable to expect employees to be able to meet the agency’s accuracy standard, and upheld the employee’s removal. The case is Cruz v. Department of the Army, U.S. Court of Appeals for the Federal Circuit, No. 04-3189, February 2, 2005. Comments regarding Performance and Behavior Accountability Here and throughout other places in the document there are references to the NSPS being transparent. In some cases the design is too transparent and the design details of the NSPS are totally missing. I also found it interesting that the language used in the Federal Register states, “a performance management system is only as effective as its implementation and administration.” I agree completely and contend that this is the problem with the current system. I further contend that I see nothing in the NSPS to suggest that the NSPS won’t be susceptible to the same shortcoming. Comments regarding Staffing and Employment – Subpart E Elimination of the category “career-conditional” is a good thing as it really only served to divide the workforce. Replacing it with what it is, a probationary period, is also good. Time limited appointments are a great idea. Converting them in to permanent positions without further competition is a bad idea. I am confident that pool of candidates looking for or willing to accept a time limited position are different than those looking for or willing to accept a permanent position. If there is a difference in the performance characteristics of these two pools of candidates, then further competition to convert a position and the person sitting on it to permanent is necessary and desirable in a performance based personnel system. Retaining veterans preferences under a performance based system is contrary to basing personnel decisions, including hiring, on performance. Veterans preferences should be removed from any truly performance based system. Further, since it is in general the assertion that veterans have unique and highly desirable skills that the Department needs, then these candidates should rank highly without an artificial preference being applied undercutting the performance methodology. Comments regarding Department Review of Initial MSPB Administrative Judge Decisions This whole concept of the Department making any decision that overrules, modifies, reverses or changes an administrative judges decision is contrary to the entire American justice system. As one of two parties that are in a adversarial disagreement, it is entirely inappropriate for one of those parties to be in a position of overruling, modifying, reversing or changing the impartial third parties administrative judges decisions. Elevation up the MSPB or judicial chain is the appropriate and only reasonable action. Comments regarding Attorney Fees It is proposed under NSPS that attorney fees will only be paid by the government when management clearly knew that an action was being taken without merit. This allows management to take actions that are ill conceived or conceived in willful ignorance without penalty to management. If management fails to discover evidence through their own willful ignorance or fails to investigate and discover exculpatory evidence, then the defendant is penalized and made to unfairly pay attorney fees to defend himself or herself against charges without merit. It seems unfair that in a pay for performance personnel system that the one who is made to pay attorney fees in such situations is not the one who performed poorly.