Washington, D.C.- U.S. Senator Daniel K. Akaka (D-Hawaii), Ranking Member of the Senate Governmental Affairs Subcommittee on Financial Management, the Budget, and International Security (FMBIS), which has jurisdiction over federal employee rights, benefits, and protections, has written to the Department of Defense (DOD) and the Department of Homeland Security (DHS) questioning decisions made by the two agencies in proposing changes to their personnel systems.
On March 12, 2004, Senator Akaka sent a letter to Defense Secretary Donald Rumsfeld urging DOD to issue all personnel proposals for the new National Security Personnel System (NSPS) in the Federal Register rather than issuing internal regulations. In his letter, Senator Akaka stressed the intent of Congress that DOD mirror the process used by DHS in issuing its regulations and noted that DHS and the Office of Personnel Management (OPM) jointly issued their regulations in the Federal Register on the new personnel system at DHS on February 20, 2004.
In urging the Department to publish regulations on the NSPS in the Federal Register, Senator Akaka wrote, "The principles of an open and transparent government, especially when the rest of the federal government could be impacted, encourage compliance with notice and comment procedures in the prescription of the NSPS regulations. I [believe] that the devil is in the details, that best intentions may be overcome by wrongheaded implementation, and that it is useful to publish personnel changes in the Federal Register for public scrutiny. We must have openness, transparency, public comment, and scrutiny of the details of the Department's personnel systems."
On February 25, 2004, Senator Akaka joined members of the House and Senate in sending a letter to Secretary Rumsfeld urging him to withdraw the labor-management system proposal and submit a new one consistent with the intent of Congress to ensure collective bargaining and employee union rights.
On March 22, 2004, Senator Akaka, as the Ranking Member of the FMBIS Subcommittee, also submitted comments to the Federal Register on proposed changes to the appeals system for employees at the Department of Homeland Security (DHS). Under the proposed regulations, certain aggravated offenses would be reviewed by an internal appeals panel while the majority of adverse action cases would still be heard by the Merit Systems Protection Board (MSPB).
"While I am pleased to learn that DHS will retain MSPB for most adverse action cases, I am concerned that allowing the Secretary of DHS to create an internal appeals panel for certain matters, as well as select panel members and remove them for 'inefficiency,' compromises the independence of the panel's decisions and eliminates both transparency and accountability. In addition, requiring the proposed internal panel to give deference to agency mission and operations fails to ensure objectivity," Akaka wrote.
The regulations would also make several changes to the procedures and practice of MSPB. According to Senator Akaka, "the specific changes to MSPB procedure, such as shortening the case processing time; increasing the burden of proof for federal employees to prevail; increasing the standards for awarding attorney fees; and removing the ability of MSPB to mitigate penalties makes it extremely difficult for DHS employees to enforce their rights by making it virtually impossible for employees to hire attorneys and win appeals. This places DHS employees at a distinct disadvantage compared to the rights and protections afforded to non-DHS employees. In addition, limiting the discretion of MSPB to award attorney fees and mitigate penalties ties the hands of MSPB making its independent review practically meaningless.
"It is essential for any appeals process to be both fair and perceived as fair in order to be credible. I am afraid that the proposed regulations do not meet either requirement."
Akaka also joined Senator Edward M. Kennedy (D-MA) and others in submitting comments on the proposed labor-management and pay-for-performance systems at DHS. Concerned that the proposed system would drastically undermine the collective bargaining process, eliminate independent oversight of labor-management disputes, and award pay increases in a biased manner, the Senators urged the Department to withdraw these regulations and develop a personnel system that equitably balances employee rights and the Department's needs.
