| Comment Number: | OL-10506971 |
| Received: | 3/14/2005 4:00:48 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:
In response to CFR Chapter XCIX and Part 9901 National Security Personnel System; Proposed Rule published in Federal Register dated February 14, 2005, I submit the following comments regarding the sections/subsections as identified below: General Comments In general, I believe the proposed NSPS gives DoD and specifically, the Secretary of Defense, too much power over civilian employment issues. In many cases, subjects are not addressed in detail and the statement is included that DoD or the Secretary will make issuances regarding details and specifics of proposed changes. This indicates to me that either there is no plan or the plan with details is being kept from the general public. Either case is unacceptable. Even pay band rate ranges have not been established. In short, these rules are incomplete and demonstrate a lack of planning. Theoretically, a performance-based pay system should allow the government to attract and retain top quality employees. The problem arises, however, in delegating to organizational units, supervisors, and pay pool managers authority and opportunity to affect pay to such a degree and possibly in a subjective, capricious, or inequitable manner. Furthermore, there are no safeguards to protect money budgeted for rate range adjustments and to prevent pay pool managers from using the budgeted amounts for items unrelated to civilian employment. Pay and Pay Administration—Subpart C/Adjusting Rate Ranges and Local Market Supplements, p. 7560 of the Federal Register AND §9901.322 §9901.332 Since rate range adjustments and local market supplements are directly related to the cost of living in general or in a specific area, it would be inequitable for DoD to be allowed to make those pay changes ”differ by career group, pay schedule, or pay band”. The cost of living that goes up 2% does so for all employees—not just for some in certain career groups, pay schedules or pay bands. Rate range adjustments particularly should be across-the-board percentage increases, as in the current system. Pay and Pay Administration—Subpart C/Rating Methodology, p. 7560 of the Federal Register The DoD has not defined the methodology for performance appraisal ratings. This section does not indicate whether all agencies within DoD will be required to use the same number of rating levels. If all agencies are not required to use the same number, as is the case currently, an employee performing substantially the same amount and quality of work in one agency could receive a lower (not just 1 or 2 shares) performance-based pay increase than his counterpart in another agency. What assurances are in place to offset the subjectivity of employee rating? Pay and Pay Administration—Subpart C/New Appointments/Reinstatements, p. 7561 of the Federal Register This section states, “The hiring official will determine starting pay based on available labor market considerations…” What qualifies a “hiring official” with no personnel experience to set pay anywhere within a pay band? I am concerned that the hiring officials will not be given specific enough criteria and that this creates the opportunity to employ candidates at higher salaries than the salaries of those employees with DoD experience in like positions. This will create inequity and employee relations problems. Pay and Pay Administration—Subpart C/Premium Pay, p. 7561 of the Federal Register This section also offers no plan, but states, “DoD will establish any NSPS premium payments through implementing issuances.” Pay and Pay Administration—Subpart D/Performance and Behavior Accountability, p. 7562 of the Federal Register This section suggests that management will have more influence over performance and behavior through NSPS regulations and processes. Management has had the ability to influence performance and behavior through pay though not on an incremental level. An employee with a less than successful rating was denied a WIGI and pay incentives for top performers have historically been available in the form of QSIs and performance awards. WIGIs were “automatically” awarded when there was no negative performance appraisal or adverse action to stop them. Therefore, it is a fallacy to say they were automatic. IF managers rated employees higher than they deserved, the problem then lay with management, not with the system. There is nothing to prevent the same thing from happening under NSPS. This section also states, “…supervisors and managers will be held accountable for clearly and effectively communicating expectations and providing timely feedback regarding behavior and performance.” This section does not, but should state HOW accountability will be achieved and should actually penalize supervisors and managers who do not comply (NOT an unusual occurrence for supervisors not to conduct performance appraisals!), especially now that a reduction in force retention lists will rely so heavily on the recent rating of record. Pay and Pay Administration—Subpart C/Performance Rating Challenges, p. 7563 of the Federal Register This section states, “…the regulations permit employees to request timely reconsideration of their ratings of record…the implementing issuances will prescribe a separate reconsideration process…” This process should be addressed in this section since the entire pay-for-performance system hinges on assessing and rewarding performance appropriately in order to get and retain superior employees. Staffing and Employment—Subpart E/Probationary Periods, p. 7564 of the Federal Register AND §9901.512 Probationary periods are not described and should be in this section. Instead, it states, “the Department may prescribe implementing issuances to establish probationary period as deemed appropriate for certain categories of employees newly appointed to career service positions covered by NSPS.” Probationary periods should be the same as in other agencies as prescribed by OPM. No plan! Adverse Actions—Subpart G/Actions and Employees Covered, p. 7564 of the Federal Register AND §9901.704(d)(1) A preference eligible employee should not at this stage of his civil service development have more rights to redress an adverse action than any other employee. He/she has already received preference in employment, and if his/her performance is of such a caliber that he/she has already had an adverse action taken, then he/she would make no better long-term employee than any other non-preference employee. Assigning more rights to such an employee does not build a better workforce as is purported to be the goal of NSPS. Adverse Actions—Subpart G/Mandatory Removal Offenses, p. 7565 of the Federal Register AND §9901.103 §9901.712(a) §9901.712(c) Since MROs are so egregious, they should be identified in this section. The definition of and MRO is ambiguous and should be more clearly defined. It is suggested on p. 7565 of the Federal Register and in §9901.712(a) that DoD will identify a proposed list of such offenses, but this list is not published. I do not agree that “only the Secretary may mitigate the penalty for committing a mandatory removal offense (MRO).” The Secretary of Defense is a political appointee and there is nothing to prevent the Secretary from being politically motivated in mitigating the penalty for committing an MRO. Appeals—Subpart H/Department Review of Initial MSPB Administrative Judge Decisions, p. 7566 of the Federal Register AND §9901.807(k)(8)(iii)(B) “This subpart authorizes the Department to review initial decisions of MSPB administrative judges (AJ). The authority provides that DoD may reconsider and affirm, remand, modify, or reverse an initial MSPB AJ decision for which a request for review (RFR) has been filed by either party concurrently with the full MSPB and the Department.” Since DoD or one of its agencies or organizational units will be one of the parties in the action, it is not right that DoD should be allowed to reverse an AJ’s decision. There is too much opportunity for a show of bias and a conflict of interest. Labor-Management Relations—Subpart I/Impact on Existing Agreements, p. 7569 of the Federal Register This section negates any collective bargaining agreements that conflict with anything in this part Labor-Management Relations—Subpart I/National Security Labor Relations Board, p. 7569 of the Federal Register AND §9901.907(a) §9901.907(b) I do not agree that an NSLRB should be established, and I see an actual conflict of interest in establishing it. I see no legitimate reason why the NLRB could not handle DoD cases. They do not have to work for DoD in order to read and understand NSPS regulations and issuances as they relate to labor relations. The appointments of members of the NSLRB as designated in this section allow for the Board to be “loaded” with political appointees who could very easily be biased in favor of DoD—one of the parties in actions coming before them. The Secretary is a political appointee and he has been given the authority to appoint the majority of this Board. I believe any Board should be inherently fair and open-minded in regard to the decisions it must make, and I am concerned that the nature of the appointments could compromise the Board’s actions and decisions. These positions on the Board should not be political appointments! §9901.103 Definitions “Promotion means the movement of an employee from one pay bad to a higher pay band under DoD implementing issuances.” What is to prevent management or a supervisor from adding duties to a position that have a higher level of accountability/independent judgment that would have necessitated a promotion to a higher grade under the current GS system, but are added without an increase in pay within the band? How would the principle of “equal pay for equal work” be enforced under these circumstances? §9901.105(f) Coordination with OPM I do not believe that the Secretary should be delegated the ultimate authority on those issues on which the OPM has input. He/she does not generally have the background or education to make the overriding decisions. What is the purpose of OPM input if it carries no real weight? §9901.106(a)(2)(ii) Coordination with OPM This section allows the Secretary to determine the number of employee representatives to be engaged in the continuing collaboration process—including one or none! He has already had minimal input regarding NSPS from the thousands of employees, and he can continue to hear only what he wants to hear. §9901.212 Pay schedules and pay bands I am concerned that since DoD does not have the expertise in Personnel issues that it is not qualified to “establish one or more pay schedules within each career group” or able to adequately “designate qualification standard and requirements for each career group, occupational series, pay schedule…” I would be more comfortable if DoD worked in coordination with the OPM. On what rules and standards would classifications be based? While DoD does employ people in the Human Resources who currently classify jobs, they do so based on a qualifications standards manual written by the OPM. They are planning to implement this system with such classification standards. §9901.322 Setting and adjusting rate ranges What is to prevent DoD from not making band rate range adjustments and using the allocated budget on other DoD expenditures? §9901.323(c) Eligibility for pay increase associated with a rate range adjustment Will employees who do not have a current rating of record be penalized by receiving less of an adjustment than those who do have a current rating? Will subsequent issuances harm or benefit the employee who has no current rating of record through no fault of his own? §9901.342 Performance payouts There is no plan, as is evident in 9901.342(b), 9901.342(c), 9901.342(d), 9901.342(e), 9901.342(f), and 9901.342(g). In spite of the fact that this facet of the plan is a keystone to a pay-for-performance personnel system, this section only states that DoD will make issuances or methodologies. All facets of performance payouts should have been determined and included in these regulations. §9901.345 Treatment of developmental positions Again, there is no information and it is stated that DoD may issue implementing issuances regarding pay increases for developmental positions. §9901.352 Setting pay upon reassignment There is nothing in this section to prevent management from reducing pay for a reassignment where the position duties and responsibilities remain substantially the same and there is no adverse action or change in pay band. §9901.353 Setting pay upon promotion This allows DoD to set pay anywhere with the assigned pay band when an employee is promoted to a position in a higher pay band. How is equity among like positions maintained? Again this is open to subjective pay setting. §9901.356 Miscellaneous This is another instance regarding pay that is not addressed except to say that DoD may promulgate implementing issuances. §9901.408(a) §9901.409(a) §9901.408(i) DoD indicates in all three of these sections that DoD implementing issuances will establish the multi-level rating system and the policies and procedures for developing performance, rewarding performance, addressing poor performance, and crediting performance in a reduction in force. Since controlling performance is a keystone of the NSPS, these important issues should have been addressed in these sections. Once again there is no plan that is being publicized, and that is worrisome. §9901.607 Retention standing This section describes how a retention list is designed in the case of a reduction in force. NSPS has assigned a greater significance to the rating of record over length of service. Though arguably, that should allow DoD to retain the better employees, there is no provision for the case in which there is no recent (in the past 12 months) rating of record. This is not unusual, as there are cases in which, for a variety of reasons, the employee may not be rated in a timely manner. The employee in this case should not be penalized (i.e. a presumptive average or successful review as opposed to something higher) for a failure on the part of management to conduct a timely appraisal.