| Comment Number: | OL-10511881 |
| Received: | 3/16/2005 6:04:59 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| Attachment: | Comments concerning the National Security Personnel System.doc Download Adobe Reader |
Comments:
p. 7558, “…The proposed regulations guarantee that any written comments submitted with the timeframes will become part of the official record and be considered before final decisions are made. While this process does not affect the right of the Secretary …” In other words, we can make all the comments we want, but the Secretary will make his preconceived decision regardless. Question: If that is the case, why is the DoD civilian work force being abused by the “proposed” NSPS rule and why are we wasting everyone’s time in commentary and spending the taxpayers’ money in the process? This sure seems like a case of “waste, fraud and abuse” to me. p. 7560-7561 (Performance-Based Pay): Performance for Pay, what a concept! While this sounds good on the surface, I do not see how this can be implemented fairly, even with the most fair-minded supervisor. The current system (for the actual pay scales) is completely fair. There is no discrimination by age, race or sex. Sadly, one could also say “by ability” as well. That particular problem, which presumably is the “real” issue and why this new system was implemented for Home Land Security could be addressed by simply having more comprehensive and detailed job descriptions and accompanying performance standards coupled with training the supervisors who must implement them. Apparently, the “new” system will do that, but I don’t see where that is detailed any better than the current OPM system. In reality, I think the current effort of the “proposed” NSPS rule is the current administration’s ploy (tactic, or to be harsh, scam) to eliminate all of the progressive advances made in federal sector hiring and firing practices, which over the years have been adopted by the private sector, frequently with the collective bargaining power of various unions. I see this “proposed” system as eliminating all that is currently good about working for federal service (for the most part, no discrimination or any kind; hiring is based on merit and within grade promotions are based on time in grade (which is fair, since presumably the employee has learned something on the job, if not from direct training) coupled with performance appraisals that COULD be based on merit if performance standards were detailed to complement the job description. A bonus structure for work above and beyond COULD be developed under the current system. Again, that COULD be done with very specific standards and scenarios as to what constituted exceptional performance. I don’t see where any of that is remotely defined in the 58 pages of the Federal Register! The “Extraordinary Pay Increase” paragraph on page 7560 is a nice statement but it sure does not define that which is “extraordinary” and I don’t see how it could, since that would be different for every job classification and work load. Perhaps, it would be better to have a 1-3 year minimum trail period for the new system as implemented by the Dept of Homeland Security, to see how it is implemented in the real world rather than committee. Further, if I must submit to this new pay system after having worked for over 28 years, then I feel that this system needs to be implemented for my Congressman and Senator and their staffs. Page 7561, Performance Management—Subpart D (2nd column, toward the bottom of the page) which addresses the view of the drafters view of the current system. “The current performance management system is burdensome because of its actual and/or perceived inflexibility and strict adherence to written elements and standards established at the beginning of the rating cycle.” I believe that the word “perceived” should be emphasized. I have been both a supervisor and an employee. In many ways, most folks are both to some degree. I have worked for both Army and the Air Force. I’ve survived several bouts of rewriting job descriptions and performance standards. I wrote and had very detailed job descriptions and performance standards at one point when serving with the Army. I was interviewed or interviewed my staff quarterly. These were progress discussions and reports so that I could write (or be written up) the annual performance appraisal. This was then discussed (so corrections to misperceptions could be changed if necessary) before the final appraisal was forwarded up the change of command for signatures. The final report is already written in my Air Force position with some ongoing interaction throughout the year. The job description and performance standards are less detailed. I say all of that as background information as to why I feel that the current system could be changed/corrected if the supervisor and all command structure above the supervisor wanted to take the time to do so. “DoD has decided to waive the provisions…” which, to me, translates into “DoD is too lazy (or, to be kind, does not want to take the time required) to design a performance management systems that will complement and support, etc.” If supervisors at all levels don’t or can’t take the time now, how will they have any more time in the future with a new system? Given what I said about how I worked at one time in the Army I don’t see how that is any different from the proposed system as mentioned in column 3, 3rd paragraph: “The proposed system builds in the flexibility to modify, amend, and change performance and behavioral expectations during the course of the performance year … For example, supervisors have the option of establishing and communicating performance expectations during the course of the appraisal period…” So, when have they NOT been able to do that? If the “top” supervisors (like the Secretary) want that to happen, it can and it has in years past under the current system. Therefore, the entire premise of this “proposed” NSPS is at worst a lie or at best a misperception of a system that could be improved in specific areas. P.7562 (Performance and Behavior Accountability) All of these sentences are certainly reasonable observations, with the exception of : “The NSPS regulations provide for consideration of employee behavior as a performance factor …” Excuse me, but where does it say, in the current system, that this isn’t possible? If the supervisor needs such an element in the performance standard, it can be put there if the supervisor and above are willing to take the time! We certainly don’t need a new system when certain elements of the current system, simply need some modification! This exercise shows me that Congress has not wanted to take the time any more so than the top echelons have want to take the time to correct those areas of aggravation. P. 7562, 2nd column on ethics. Hmm, if Congress can’t figure it out for themselves, I wonder about the application here. P. 7562, 3rd column (Setting and Communicating Performance Expectations) All of the sentences are well constructed and make sense. How is this any different from the current system? P. 7562, 3rd column (Monitoring Performance and Providing Feedback) “One of the main objectives of the pay-for-performance system is to replace the culture of pay-for-longevity with pay-for-results driven performance.” I do NOT see anything inherently wrong with modestly rewarding a diligent employee for good work. The current system does that since it presumes that one learns more and is more productive (having learned more than when 1st employed) over time. The current system could certainly be modified to withhold a within grade (next step) increase if certain elements of the performance standard were not met. I have no argument with the concept of “pay-for-performance” but I don’t see any good definitions and standards as to what constitutes a basic performance standard not to mention the assorted varying degrees required to “out-perform” someone else in the same position in the same location, much less elsewhere. Also, are extenuating circumstances (such as anthrax in the mail room) taken in to account if the mail clerks’ standard is to distribute a certain amount of mail per day in order to receive his/her basic pay? Or, perhaps the agency is missing a portion of the staff and management (say GS11 and 12) must do all the work of the GS3-6 to keep the doors open. It has been my experience that even if a person has to perform the work of everyone who is missing due to authorizations not matching requirements or the fact that there will be no one hired due to a hiring freeze, that person usually is not able to perform his/her original job as well. No matter what is written about how people should be rewarded for the work they do or the “results produced”, the dilemma remains as to how to measure performance. First, a performance standard must be determined for each position of the work force. I believe the work force needs to be involved in this just as if an A76 study were being conducted. Then, once a basic standard is defined, the “above and beyond” standard can be discussed. A factory type of job lends itself to measuring for the number and quality of items produced. However, most federal positions are “white-collar” and inherently more subjective and thus, subject to supervisory favoritism even with the most conscientious of supervisors. P. 7563 (Performance Rating Challenges): “The NSPS performance management system, even with its greater emphasis on communication and clarity of purpose, will result is questions and challenges” Yes, well of course. No amount of discussion will help anyone if the employee doesn’t know much less agree with what is to be measured! “To be effective and allow for appropriate and reasonable rating adjustments, a process needs to be established for challenge purposes” Yes, it better. I don’t see how you can have a standard without some form of measure and if it is a subjective measure how that can be balance. P. 7564 I recommend considering for to change the RIF procedure within the current system rather than the cumbersome change that is proposed. As to the issue of Adverse Actions, subpart G, this would not be as much of a problem in either current or “proposed” if Performance Standards were detailed and truly dovetailed with the Job Description. Also, if the supervisor made sure there were quarterly progress reviews based upon the current Performance Standard or if “results” is the buzz-word of the day, discuss what “results” were met per the Performance Standard, then there might be less perception of slacker favoritism. This would also be the time to rework the Performance Standard if it were mutually judged to be unworkable. P.7565 (Mandatory removal offenses): “…These proposed mandatory removal offenses would be identified in advance and made known to all employees…DoD has not yet identified a proposed list of such offenses…” It seem to me that if there is a “proposed list” it should be made available to employees (if not senior management) for comment prior to being made into law. I see a potential for flagrant employee abuse of constitutional right of free speech, given the current administration’s squeamishness of being criticized. P. 7565 (Adverse Action Procedures) Keep the time periods as they are. Even if (or especially if) legal counsel is retained, they are not known for being expeditious with comments. P. 7565 (Single Process and Standard for Action for Unacceptable Performance and Misconduct), 2nd column “The proposed regulations eliminate the requirement for a formal, set period for an employee to improve performance before management may take adverse action…” Keep the formal, set period. I personally know of one occasion where management eliminated a person from the job after the one year (his 1st year on the job) period. Management had every right to dismiss the person since he was career conditional and had not worked for an entire year. This particular case happened between 1977 and 1980. From that particular employee’s comments (which certainly is not the full story), he never received any counseling during the year where he was told where he was inadequate or what he could have done to improve his performance. I see this as a supervisory failing, and might have been prevented if there had been a detailed job description along with a very specific performance (for the employee) and review (for the supervisor) standard. Employees should not be penalized for poor managerial skills. P. 7568 (Attorney Fees): “… Under the current standard, the Department may be required to pay attorney fees based on the facts that were not known to management when the action was taken. This is an unreasonable standard that can deter the Department from taking action in appropriate cases …” The current standard protects the employee and the deterring of the Department is a good thing because it should make it find all of the facts before rushing head long into an adverse judgment which based on insufficient facts. I thought this “proposed” rule was to encourage discussion and communication. A cost benefit analysis is a good thing if it prevents an unnecessary action from being taken in the first place! P. 7568 (Discrimination Allegations) While the paragraph maintains “The proposed regulation do not alter the substance of the existing law …” it, by its very implementation, will foster more discrimination cases due to who will be judged to be more valuable with the so called “pay-for-performance”. I cannot stress enough, that if there aren’t standards that everyone can agree upon, there will be the appearance of favoritism and hence discrimination of age, race and/or sex. P. 7569 (Impact on Existing Agreements) This is a nice long paragraph that translates (to me) that to anything that was agreed upon in the past is now null and void. This is another insult to hardworking employees. P. 7569 (National Security Labor Relations Board): “… The Secretary will appoint the members…” If the Secretary is doing the appointing (presumably of people he knows since how could he appoint someone that he didn’t know) then there is no way these individuals will be completely impartial, especially if they receive any form of compensation for serving on this board, they really have their job because of an appointment not because of qualifying for a job description. Who pays these people? Are they going to have some sort of “Pay-for-Performance” standard themselves? While I don’t know how this is done now, it seems to me that there is an inherent problem with this kind of appointment. Will Congress approve these people like when they approve the President’s cabinet? Sigh!!! The more I read, the more I see that the Secretary of Defense should also be called the Chief Micro-Manager of All Things. If that is the case, I sure to hope he take the time from his busy schedule to write up all the performance standards for all of the DoD positions. P. 7570 (Management rights): This is a wordy paragraph, that might as well be summarized by saying Management (i.e. the Secretary, who is now the Chief Micro-Manager of All Things is going to demand whatever he wants, whenever he wants it, and the employees will comply. Or, as in Star Trek Borg speak, “You will all comply. Resistance is futile.” P. 7571, column 3 concerning the nondisclosure personal information. This is to be applauded and I value the recognition for privacy. P. 7573-74 concerning costs is short sighted. Everything that has ever changed in government service has always cost more than predicted or expected. I foresee no change. I see here some mention that the National Security Labor Relations Board will need to be funded. How many people will this take and how much will it cost? Which of the many other DoD positions will be eliminated or simply not authorized despite the fact that the positions are recognized as being critical to the mission, in order to shift the funding to a board that will be appointed by the Secretary. The Secretary of Defense (also known as the Chief Fox along with being the Chief Micro-Manager of All Things) is going to appoint the Foxes that guard the hen house. Isn’t this an issue right now concerning how Boards of Directors are appointed in Private Industry as evidenced by the Enron debacle? The costs are not specified and I do not see any proof that the proposed system will be any more effective than the current one. As long as people are working in positions that have little or no quantifiable elements I do not see how the pay bands are any better than the current construction. If anything, they are even more subjective. The divisions themselves prove that subjectivity will increase. SUGGESTION: The majority of this “proposed” rule should be scrapped. The sections concerning performance (since the perception that there is an over abundance of nonworkers is presumably a motivating factor in this change) should be incorporated into the current OPM system. I’d certainly like to see the wording of the performance standards written for the various Homeland Security Positions. I’d like to see a year’s worth of quarterly appraisals that address the “results” required by each of the standards. I’d like to see how management determines who gets paid what amount. I’d like to see if there are charges of discrimination when two or more people in the same pay band DON’T get the same pay. Will the pay be public record or will it be secret like many pay scales in private industry? Most DoD sections are really a team effort with the work done by the current lower grades, supporting the efforts made by those in the higher grades. Right now I see this system as a way for the Higher executive grades to take all the money available and then moan and groan about how there isn’t enough money to pay basic salary much less performance bonuses. Time will tell. I will really see if this system will work depended upon p. 7573 “If the Secretary and the Director do not accept one or more recommendations, they must notify Congress of the disagreement and then meet and confer with employee representatives for at least 30 calendar days in an effort to reach agreement…” Hmm, I wonder if that will even happen, since I don’t even know who my employee representative is in this process. We now come full circle to my beginning comment and I quote myself on page one of this response: “In other words, we can make all the comments we want, but the Secretary will make his preconceived decision regardless. Question: If that is the case, why is the DoD civilian work force being abused by the “proposed” NSPS rule and why are we wasting everyone’s time in commentary and spending the taxpayers’ money in the process? This sure seems like a case of “waste, fraud and abuse” to me. I would like to state that I concur with the comments made by Comment Number: 05-02582-EREG-115-d7391-c32171, Attachment: 05-02582-EREG-115-d7391-c32171.pdf Download Adobe Reader pertaining to Pages 7579, 7585-7586. I agree with this analysis.