| Comment Number: | OL-10512210 |
| Received: | 3/16/2005 11:47:47 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:
SUBPART H: APPEALS. Section 9901.807 (k)(6): DOD/OPM stress the need for deference to adverse actions taken by DOD. There is no indication from statistical analysis, anecdotal explanations or any other information that it is necessary for MSPB to provide any greater deference to DOD than it does to any other Agency. The MSPB has developed legal standards and precedents which have been in effect for more than 25 years. Independent Board members have developed objective legal analyses and a credible appeals process to protect fundamental personnel practices. Changing the process by incorporating DOD internal reviews and new standards only takes away from the credibility of this process. This proposal provides that neither an arbitrator, AJ or the full MSPB may modify a penalty unless such penalty is so disproportionate to the basis for the action as to be wholly without justification. This proposal is so disproportionate as to be wholly without justification. The MSPB has always had the authority to mitigate penalties. Statistics do not show that the MSPB has even a minor effect on DOD’s ability to permanently remove employees from their position through mitigation of discipline penalties. DOD currently has the authority to pull an employee’s security clearance to address any concern that an employee threatens national security. If it chooses to remove someone for misconduct, DOD has effectively determined that there is no security risk underlying the disciplinary/removal action. MSPB review in its current form is already severely limited. This proposal does DOD employees an even greater disservice by providing the Board less latitude in modifying decisions that will help to level the playing field, protect the limited rights DOD employees now enjoy and help employees and their advocates believe that there is a credible appeals system still available to them.