| Comment Number: | OL-10505937 |
| Received: | 3/11/2005 9:48:04 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:
My comment pertains to subpart H (Appeals); Para 9901.807 (Appellate Procedures); [h] [1] (Attorney Fees). The current verbage of the proposed regulation essentially reads attorney fees will be reimbursed to employees if the agency acted improperly "based on facts known to management when the action was taken." I believe it should read "based upon facts that were known, OR SHOULD HAVE BEEN KNOWN, to management when the action was taken. The current verbage requires the employee to prove what his agency did or did not know. This will result in instances of "plausible deniability" by unscrupulous managers. The agency must show an honest effort was made to obtain significant facts BEFORE it takes actions. As currently worded, all an agency has to do to get rid of an unpopular employee is a cursory review and then force the employee into either quiting or going bankrupt hiring attorneys to defend themself. Even if the MSPB rules in the employees favor, the attorney fees will not be reimbursed as long as the agency says "we didn't know".