Comment Number: OL-10508694
Received: 3/15/2005 10:07:09 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:

1. SITUATION: Within DoD, non U.S. citizen local national (LN) employees overseas who acquire U.S. citizenship, must quit their jobs or be fired if they cannot transfer to positions under U.S. employment conditions as required by the Classification Act, merely because they have become U.S. citizens. Most of these LNs, however, cannot transfer to Classification Act or other positions under U.S. conditions of employment, because this would make them “members of a civilian component” under the NATO SOFA. Since they are ordinarily resident under the NATO SOFA, or in the case of dual nationals, are still considered host-nation nationals, Article 1 of the NATO SOFA precludes them from being members of the civilian component. But, for direct hire systems, such as in Germany, the employee cannot remain in an Appropriated Fund (APF) position under LN employment conditions. Direct hire LN positions are entirely funded by U.S. APF. Because the employee is in a position entirely funded with U.S. APF, the Classification Act applies to the new, U.S. citizen, DoD employees. Hence, these often highly experienced employees cannot remain as APF employees, since authority for their employment and pay systems ends when they acquire U.S. citizenship. Because they are employed under German labor conditions, they have German legal rights and German law does not recognize acquiring U.S. citizenship as a reason for their termination. The result is an expensive buyout process, often via German labor courts, just to eliminate a U.S. citizen employee we have trained and need, in order to comply with a law that never anticipated this result. This scenario applies to other direct hire situations outside Germany, and likely affects dozens of employees per year (there are over 10,000 LN employees in Germany alone). (Note Sect. 9901.514 of the proposed rules is not applicable to this problem.) SUGGESTED ACTION: Consider a provision that allows non-citizen employees of the DoD, overseas, who are employed in positions wholly funded by U.S. APF, to remain employed under host nation employment conditions upon acquiring U.S. citizenship, if they are otherwise precluded from employment under U.S. employment conditions by treaty. Since you have authority to waive 5 USC 51 and 53, such a provision could end the old Classification Act coverage of these employees and the DoD NSPS could allow for their continued employment in a new category of U.S. citizens employed in APF LN positions who are ineligible for civilian component status at the time they acquire U.S. citizenship (this distinguishes them from all other ordinary resident U.S. citizens). Merely excluding them from NSPS coverage would only still subject them to the Classification Act, which has not been repealed and would require employment under US conditions that is precluded by the NATO SOFA. Including them in NSPS, but providing for continued employment LN conditions would avoid loss of employment. 2. SITUATION: Sect. 9901.807(d)(2) provides “Neither the MSPB AJ nor the full MSPB, may reverse…based on the way in which a charge is labeled or the conduct characterized, provided the employee is on notice of the facts sufficient to respond….” This lacks clarity regarding the elimination of the Board’s historical practice of not recognizing lesser included offenses, even when clearly supported by the evidence in a case. SUGGESTED ACTION: Specify that lesser included offenses will be sustained if established by the evidence in a case. Rather than resolving this issue in litigation, this should be made clear up front. If the essence of due process is notice of the facts sufficient to respond to the misconduct charged, and the misconduct charged happens to support more than one offense, there should be no obligation to enumerate and give notice of all the offenses, only of the facts supporting any misconduct. Lesser included offenses can be generally spelled out in the Table of proposed penalties as notice for all employees of possible offenses their factual misconduct can support. 3. SITUATION: Sect. 9901.715(b) continues to permit oral replies in adverse actions. In an era of frequent deployments and technological advances utilized even by administrative review forums, this right should be clarified to avoid unreasonable expectations, or delays. SUGGESTED ACTION: Clarify oral responses to include appearances via VTC or telephonic presentations, at the discretion of the agency. Pre-recorded submissions (video or tape) afford management no opportunity to clarify an employee’s assertions, but with that risk understood, also could be used at the employees’ election, in lieu of a scheduled, live response. 4. SITUATION: Sect. 9901.807(k)(3)(ii) provides “The number of interrogatories or requests for production or admission may not exceed 25 per pleading, including subparts….” SUGGESTED ACTION: Specify that the total of all such requests shall not exceed 50 per case. It can always be supplemented on motion for necessity and good cause (as stated, the rule allows for 25 of each, or up to 75 requests per case). This amount per case is still unnecessarily burdensome given the large extent of disclosure that transpires in the adverse action process, and the reasonable time given employees to prepare their responses. 5. SITUATION: Sect. 9901.332(b) provides for creation of local market areas OCONUS. DoD agencies overseas need to attract and retain the most experienced Federal employees (typically those who are at the end of their careers and who might otherwise return stateside to increase their high 3 for retirement purposes), especially since drawdown, relocation and transformation are on an expedited track. Further, in accordance with NSPS principles of flexibility and mobility, the DoD cannot be hindered in its flexibility to assign overseas its tenured employees, merely out of fear of reducing their retired pay (or, essentially, punishing them for serving abroad by denying them the opportunity to serve in positions stateside with locality pay). Because of its taxable nature, and generally lower dollar amount, actual locality pay overseas would not provide the recruitment incentive that LQA provides, nor compensate employees for the extraordinary expenses involved in living overseas. Congress recognized this in 5 USC 5923. SUGGESTED ACTION: A virtual locality pay for the European region for DoD, for example, at the locality pay rate for the Washington D.C. area (similar to that enjoyed by Foreign Service personnel) would avoid these problems. This amount would not be paid, would not alter LQA, but would be used to calculate retirement annuities for CSRS and FERS employees. Since the NSPS proposed rule reflects that Federal rulemaking procedure must be followed for creating an OCONUS local market supplement areas, a proposed rule to effect this should be prepared for publishing as soon as the NSPS rule becomes final. Since it would not be an actual payment, there would be no need to delay this until the affected overseas employees came under the pay provisions of NSPS, as part of the spiral process. While the impact on DoD will be an increase in retired pay for those employees who otherwise would have remained overseas through their last three years, an increasingly mobile workforce with less predictable assignments to overseas regions should not operate to the employee’s detriment over a stateside assignment. 6. SITUATION: Subparts G and H subject performance-based cases to mitigation (albeit under severe standards). It seems the new evidentiary standard and single system now make MSPB decisions of precedence (that remain relevant) on evidentiary standards and mitigation in misconduct cases applicable to performance-based actions as well. If so, such requirements should be examined and the rules revised to account for them. An example is the requirement to assert all prior instances of discipline relied upon in aggravation for a particular penalty (Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999). SUGGESTED ACTION: In the example above, specify that management may introduce evidence of prior instances of discipline at any time during MSPB proceedings. The employee already is on notice of what misconduct or performance-based discipline they have received. They do not need to be reminded that management knows of them as well. Clarify that the maximum penalty will be sustained irrespective of management’s prior articulation of its reliance on prior discipline, unless wholly unjustified on other grounds. 7. SITUATION: Sect. 9901.807(k)(3) allows for either party to file a motion to disqualify a party’s representative. This resurrects a contentious topic that can appear in NSPS mixed cases, regarding EEOC MD-110, Chapter 1, paragraph III, and its interpretation by various EEOC AJs. That provision reads, “Legal sufficiency reviews of EEO matters must be handled by a functional unit that is separate and apart from the unit which handles agency representation in EEO complaints.” All Federal attorneys seek to avoid even the appearance of conflicts of interest, where possible, but the overly strict requirements of MD-110 ignore staffing and budgetary constraints that deny Federal agencies this luxury. They further ignore the legal standards for dealing with conflict of interest situations (which recognize professional responsibilities regarding impartiality), and are inconsistent with case processing requirements in agency regulations. SUGGESTED ACTION: Since the above provision of EEOC MD-110 was not subject to agency comment, DoD should consider supporting its position using the NSPS rule to specify that Agency representatives will avoid the appearance of conflicts of interest but will not be disqualified solely on the basis of their having advised management on the processing of underlying matters, where such advice was within the scope of their responsibilities to provide under agency regulations. 8. SITUATION: Often employees pending disciplinary action for misconduct learn of the action and resign their positions prior to the agency issuing them a proposal notice. No documentation of the alleged misconduct is permitted in the files of those who resign prior to issuance of a proposal notice. This practice is based on the statutory due process rights, and authority over Federal employees. Employees are generally free to have their reasons for resigning entered into their official records under 5 CFR 715.202(a), and OPM’s "Guide to Processing Personnel Actions," restricts agency remarks. This situation can result in employees who should have been proposed for removal securing Federal jobs at other installations that might never acquire knowledge of their alleged misconduct. Allowing allegations or investigations to be rendered irrelevant, however, raises serious security issues. SUGGESTED ACTION: Consider whether a centralized systemic remedy for this recurring situation can be effected through the proposed rule. Where an employee is under investigation for misconduct prior and resigns prior to a proposal notice, reference to that investigation should be permitted in the Official Personnel File on the employee. The employee could be served a copy of the annotated language and provided notice that the disciplinary action will be forwarded for possible reinstatement upon the former employee’s reemployment by the agency. The employee could be offered a response opportunity to clear the record. Further, the ability to bar civilian employees and non-employees from entry to military facilities allows military commanders to ensure force protection, security and mission stability. In the event an employee is investigated for serious misconduct (e.g. punishable by removal), a mechanism allowing imposition of centrally maintained DoD-wide bars from facilities should be established through installation command channels. Implementing issuances also could impose a DoD requirement for all investigations of employee misconduct (whether the employee departs the service in advance, or not) to be referred to centralized security clearance authorities.