| Comment Number: | OL-10512234 |
| Received: | 3/17/2005 12:05:58 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:
SUBPART H: APPEALS. Section 9901.712 - Mandatory Removal Offenses. I object to the establishment of the mandatory removal offense scheme in its entirety and recommend that this section be deleted from the regulations. It is not possible to evaluate the impact of this proposal fully because the offenses are not listed. Instead, the Secretary is given unfettered discretion to identify offenses, subject only to the vague and overly broad requirement that they have a direct or substantial impact on homeland security. This could cover virtually anything and could result in a list containing offenses for which removal is, as judged by any impartial reviewer, too harsh a penalty. The inability of an employee to have the penalty mitigated upon review by an independent reviewer and the uncertain availability of judicial review further undermines the process credibility. Employees will have no confidence that their due process rights will be protected in this process. It appears that the outcome of appeals hearings will be pre-determined. An impartial and disinterested tribunal will not hear their cases. Instead, as proposed in section 9901.808, a panel hand-picked by the same employer that imposed the penalty will decide these cases. Despite any claim to the contrary, this proposed panel will never be accepted by employees as being fair and independent. It is unacceptable to have the idea of judge, jury and prosecutor rolled into one entity. This is true, whatever the nature of the charges against the accused. It is even more critical when the charges allege harm to our national security. Additionally, the proposal does not specify the type of judicial review that could follow a panel decision. This approach is particularly inappropriate for the types of serious offenses contemplated by these sections. The more serious the offense, the more important it is for employees to have access to a fair and impartial appellate process, including impartial judicial review. The concept of Mandatory Removal Offenses originates from a 1998 statute Congress passed pertaining to the Internal Revenue Service, specifically Public Law 105-206, section 1203, which the Supplemental Information references at page 7565. Since Congress delegated the authority to the Internal Revenue Service (IRS), but elected not to provide the same authority to DOD; any attempt by DOD/OPM to include this concept clearly overreaches the public law providing for personnel reform at DOD. Stated another way, I believe that DOD/OPM are attempting to legislate through the regulation and obtain what they did not obtain under the statute. I specifically recommend that subsection (c), which prohibits the MSPB from penalty mitigation, be deleted in its entirety since this portion of the proposal violates 5 U.S.C. 9902(h)(5), which authorizes the MSPB to order such corrective action as the Board considers appropriate when an adverse action is arbitrary, capricious, (or), an abuse of discretion.