One area where DoD made some changes between its proposed
and final rules on NSPS concerns employee appeals of
adverse personnel actions.
Like the proposed regs, the final version keeps employee
rights to appeal to Merit Systems Protection Board hearing
officers, while reducing the notice period for an adverse
action to 15 days. DoD management could interpose itself
in the process, by reviewing and potentially rejecting
the hearing officer’s decision, before an employee appeal
to the full MSPB would be allowed.
In addition, “mandatory removal offenses” will be allowed,
although not before they have been publicized in the Federal
Register and regularly made known to all employees.
In addition, DoD proposes to consolidate the separate
processes for actions based on misconduct versus poor
performance into one procedure, with the agency required to
make its case by the preponderance of the evidence, not a
lower “substantial evidence” standard.
One change in the final rules from the earlier version
involves the MSPB hearing officer’s authority to mitigate
a penalty chosen by management. Under the previous version,
management’s action would have to be upheld unless it was
“wholly unjustified,” while under the final rules it would
have to be upheld unless it was “totally unwarranted in
light of all pertinent circumstances”–a change that
potentially will allow mitigating factors to be considered.
