| Comment Number: | OL-10503038 |
| Received: | 3/3/2005 8:45:00 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:
On Page 10 of the Federal Register, in the section entitled “Performance Pay Pools”, it says that the amount of money in the pay pool is based on money that would have been available for within-grade increases, quality step increases, promotions between grades that have been banded in the NSPS pay system, and applicable across-the-board pay increases. The only applicable across-the-board pay increases that employees now receive would be the annual COLA (cost of living adjustment) normally given every January. Since this COLA money is not performance based like the other sources of money, it should not be mixed into the performance pay pool. The net effects of mixing COLA money into the performance pay pool could be devastating to employee morale. NSPS employees who are performing at an acceptable level, even if minimally acceptable, should receive at least the across-the-board pay increase (COLA) that Congress appropriates for all federal employees. This is necessary to counteract normal inflation and cost of living increases in their daily lives (health insurance, auto insurance, taxes, utilities, etc). Otherwise, a satisfactory employee’s pay could be frozen under NSPS, equivalent to a pay cut year after year. What is the purpose of replacing the existing government-wide locality pay system with another type of locality pay called "local market supplement" that is specific only to the DoD? Since no details are provided on this new locality pay system, it appears suspicious. The very short comment period, in and of itself, signifies a serious problem with the intentions of the creators of the proposed NSPS regulations. The NSPS creators have claimed this will be the biggest change in 50 years, affecting 700,000 workers in a critical agency of government, yet only 30 days are given to comment. I will be on travel for a significant portion of these 30 days, as will many other DoD civil servants. There is no nexus between the proposed NSPS system and "national security". The overall tone of the Federal Register document is that DoD is full of poor performing civil servants, and that more methods of punishment are necessary. Note: According to a study by OPM in 1999, their best objective estimate of poor performers in Government was 3.7%. Furthermore, this is an irresponsible use of the term "national security". The Federal Register indicates that a lot of hiring, firing, and salary fluctuation will occur under NSPS, which will create a "revolving door" civil service system that is susceptible to politicization. Furthermore, NSPS presumes that the rank-and-file civil servants and their unions are the root cause of these undocumented performance problems, and that supervisory/management personnel are without fault. The public cannot provide meaningful comments to the NSPS proposal because it is too vague. The NSPS Federal register proposal is full of ideology and devoid of crucial details. The Federal Register proposal appears incomplete, as if it were either rushed by its developers to meet some deadline, or as if its developers have a hidden agenda and purposely are holding back details. These are not proposed regulations but rather philosophies. The mention in the Federal Register that the attacks of September 11th make NSPS necessary is a shameful exploitation of an unrelated tragedy. The NSPS creators are using this tragedy to push through fringe political ideologies that have been kept alive by the detractors of the Civil Service Reform Act of 1978. George Nesterczuk, the political appointee implanted into OPM to be lead advisor on the NSPS and DHS personnel systems, published a paper entitled "Taking Charge of Federal Personnel" nine months prior to September 11th, on January 10, 2001. The paper is posted on the Heritage Foundation website. Not only does the Nesterczuk paper provide insight into the ideology behind the proposed NSPS and DHS personnel systems, but the paper makes absolutely no mention of "national security". Only after September 11th, has “national security” become a battle cry to dismantle the Civil Service Reform Act. The creators of NSPS need to be reminded that if skilled experienced federal air traffic controllers were not on the job on the morning of September 11th, perhaps the tragedies of that day would have been much worse. I do not recall any problems with federal employee performance on September 11th, as they tracked and safely redirected thousands of flights to other airports in a matter of hours. The developers of NSPS do not seem to understand the culture within the civil service. The reality is that most civil servants are career-oriented professionals who perform their jobs well. Also, civil servants are a non-political segment of the workforce, and are the only segment of the workforce that places the public interest over partisan politics, profit, and other self-serving interests. The career civil service is the only stable component of the overall DoD workforce and ensures preservation of critical institutional knowledge necessary to carry out the mission of DoD through turmoil and political changes. NSPS will turn the tables within the civil service, creating chaos, instability, an inexperienced workforce, and a system where self-serving interests and cronyism are placed over the long term interests of the public. NSPS is certainly not in the best interests of national security. The performance pay pool sounds like it could become a big shell game used to reward political friends and reduce aggregate salaries of civil servants. What is to prevent the pay pool from being raided and manipulated by political appointees and senior level managers? The document lacks adequate details and controls on the pay pool. The Federal Register is unacceptable on subject of challenging performance ratings. The Federal Register says that performance ratings cannot be grieved. Also, nothing related to the way a supervisor measures or determines performance can be grieved. However, it also says that some undetermined process for reconsideration will be developed. Why is that process not yet determined or mentioned at this stage? Will that process be an appeal to the same supervisors who gave the rating, as was done in some of the DoD demonstration projects? Given the enormous new impacts of a performance rating on an employee's pay, pension, working conditions, and job security under NSPS, there needs to be a clear, fair and transparent way for employees to challenge performance ratings. Furthermore, all salaries and ratings should be public knowledge. Imagine how demoralizing it will be to find that a coworker performing the same job at the same level is making $30,000.00 more per year because he is a college buddy of the supervisor? This NSPS reconsideration process must allow an employee request for reconsideration to proceed beyond mid-level management, who will almost always back up their hand-selected first-line supervisors. The reconsideration process must be able to proceed to a neutral third party if necessary. There are waiver clauses for the Secretary of Defense for many matters in the document. Will he use it sparingly or liberally? Will the next Secretary of Defense use it sparingly or liberally? These waivers will promote instability, and therefore are contrary to national security. Under NSPS, supervisors are given vast new authorities with more profound effects on employees, yet NSPS lacks new accountabilities to keep these new supervisory powers in check. Performance ratings by a supervisor may have a potentially devastating effect on the career and pension of an employee, determining pay increases, pay reductions by 10% per year, RIF retention status, etc. Despite these greater powers to reduce pay and fire people, no greater accountability is placed on the deciding official, who might abuse these new powers bestowed upon him. Due to human nature (i.e. absolute power corrupts absolutely) abuses will be more frequent and more profound under NSPS. Even under the present GS system, union officials have found that it is not possible for supervisors to separate personal feelings and give an objective performance measurement. Furthermore, supervisory abuse of power is widely tolerated, rarely acknowledged, and never punished. Accountability at all levels was supposed to have been one of the guiding principles of NSPS, yet much talk is made of employee accountability in the Federal Register without much mention of supervisory accountability. No provision is made to hold supervisors accountable for the ratings they give, or for abusing their authority. Also, supervisors are given the authority to change performance metrics at whim throughout the course of the rating cycle, as well as apply different metrics for different employees in the same position. Employees will not be able to challenge problems with these metrics or inconsistent application of performance metrics. There is no requirement for the supervisor to be fair, equitable, and consistent in establishing performance standards for his employees. Under NSPS, supervisors are only accountable for “communicating” expectations and feedback to employees. Congress will be continually flooded with complaints due to the lack of a fair administrative process to challenge anything related to the performance ratings given to employees. Civil litigation will likely increase also, particularly claims by employees against their supervisors. Lawyers will gladly take these cases since more money is at stake. Under NSPS, an employee’s salary can be lowered during a "reassignment" to any salary within the range of his pay band. Since reassignments can be done arbitrarily by management, and since reassignments within some organizations are routine, what is to prevent management from abusing this power? Given the expected wide salary range of the pay bands, a reassignment to another section could result in a sudden and devastating pay reduction, beyond the 10% limit. ‘Save pay’ and other limitations should be placed on pay reductions due to reassignments under NSPS. Routine reassignments within an organization should not be subject to potential pay reduction. NSPS seems to have no salary standards other than how well the supervisor feels the employee is performing. Under the GS system, salary is tied to level of responsibility in accordance with OPM position classification standards. The concept of equal pay for equal work will erode under NSPS. For example, an engineer doing relatively simple work extremely well in one department of an organization, could be making substantially more money than an engineer performing much more complex work at an acceptable level in a different department of the same organization. Under NSPS, the internal DoD appeals board of political appointees is a bad concept and will become a "kangaroo court", whose primary interest will be to protect DoD, not to seek justice. Case decisions will swing wildly with the political winds. This will produce unstable labor relations. Stability is better for national security. Why is it necessary to arbitrarily deny collective bargaining under NSPS? Consultation in lieu if bargaining has always been a joke. Management uses this to give the appearance that employee unions are in agreement with their actions. Meetings may take place but they are one sided and without true negotiations or meaningful discussions. DoD has always had the power to deny bargaining during emergencies. Unions have never stood in the way of national security. How did we come this far if unions were a threat to DoD? Although "performance pay" makes a good sound bite, it cannot realistically be implemented fairly in the public sector. The vast majority of the public sector employers use systems similar to the GS system. Twenty-five years of DoD demonstration experiments and DoD surveys of participants have shown that the majority of employees on these alternative systems would prefer to go back to the GS system. Under NSPS, team performance pay might mitigate some of the damage if it is emphasized over individualized performance pay. One of Deming's seven deadly sins, “individualized performance pay” is an outdated concept and is no longer advocated in modern day management academic courses. Individualized performance pay will create a backstabbing and suck up culture within the DoD civil service, ultimately hurting the mission and national security. If NSPS must be implemented, then it should be implemented similar to the way FERS (Federal Employee Retirement System) was implemented when it replaced CSRS (Civil Service Retirement System) twenty years ago, applying only to new hires. Congress recognized then, that it was unfair to change the rules midstream during an employee's career. Long time civil servants will feel betrayed and demoralized by such a profound change as NSPS. The subject of performance ratings for full or part time union representatives is not addressed under NSPS. Also, Mary Lacey indicated during her Washington Post interview (23 Feb 2005) that the NSPS creators are still looking for ideas on how to rate full time union officials under NSPS pay-for-performance, and that ideas should be submitted. Although the union to which I belong does not have full time officials, it does have part time union leaders who spend a significant amount of their regular work hours on official time for union duties. Problems arise when it comes time for supervisors to rate these union officials, due to lack of understanding of official time and lack of formal guidance or clear case law on the subject. Under NSPS, with annual cost-of-living increases, pay raises, and RIF retention status tied more strongly to performance ratings, a sub-par rating could now be devastating to an employee who wants to serve as a union representative. The attached document is a MOU that our union is currently negotiating with our management. It contains language that may be helpful to the NSPS creators. In general, full time officials should get the mode performance rating for their respective job series. Under the NSPS proposal, a 1-year employee with a Level-5 rating of record would be retained over a 20-year employee with a Level-4 rating of record, in the event of a layoff or RIF (reduction-in-force). This is alarming and demoralizing. There is no loyalty to the employee under NSPS, which in turn creates no loyalty to the employer.