Some of the sticking points emerged earlier this month in testimony before House and Senate committees, and members of the Senate Armed Services Committee, in particular, laid out concerns that they expect the Pentagon to address as it creates the National Security Personnel System.
At times, the concerns of the senators tracked issues raised at the Senate hearing by John Gage, president of the American Federation of Government Employees and spokesman for a coalition of 36 Defense unions, and Derek B. Stewart, a specialist in Defense management at the Government Accountability Office.
Sens. Susan Collins, a Maine Republican, and Carl Levin, a Michigan Democrat, sharply questioned how Defense proposes to handle employee appeals of “adverse actions,” such as firings and demotions. Sen. John Warner, a Virginia Republican and the Armed Services chairman, asked why the proposed regulation changes the traditional role of the Merit Systems Protection Board and would permit Defense to “overrule” the merit system board.
Defense's proposed regulation would prevent a merit system board judge from reducing an employee's penalty except if the punishment was “wholly without justification.” In cases in which the punishment was reduced, the proposed regulation would require “the maximum justifiable penalty.”
Collins said the Pentagon proposal “seems inconsistent” with the law authorizing the new personnel system. Levin called the proposal “harsh” and “extreme on its face,” noting that even convicted criminals do not always face the maximum possible penalty.
In letters to the administration prior to the Armed Services hearing, Collins and Levin suggested the Defense proposal should be modified to make it clear the merit systems board, which hears employee appeals, can and should consider other factors that might justify a lesser penalty, such as an employee's record, whether the offense was intentional or inadvertent, and whether the punishment was in keeping with other penalties imposed for similar offenses.
Collins and Sen. Jim Talent, a Missouri Republican, also urged the Pentagon to tighten the regulation so employees “know what they are graded on and not graded on,” as Talent put it.
Employees should have their disputes over job performance ratings, which would be used to help set pay raises, resolved as quickly as possible, Talent said. He urged the department to show “commitment from the top,” providing adequate money for training and bonuses.
Levin, along with Sen. Edward Kennedy, a Massachusetts Democrat, and Sen. Daniel Akaka, a Hawaii Democrat, faulted the Pentagon's plan to curtail union rights. Akaka said the National Security Personnel System “effectively eliminates collective bargaining by restricting bargaining over approximately 75 percent of current bargaining issues.”
Kennedy asked whether the proposed regulation would prohibit unions from bargaining on overtime policy, deployments, work schedules and similar issues. Collins and Levin suggested the Pentagon needs to find a way to ensure the independence of appointees to an internal labor relations board that will hear disputes between managers and unions.
The officials representing the Bush administration — Gordon England, the Navy secretary, and Dan G. Blair, acting director of the Office of Personnel Management — said they could not answer questions on bargaining rights because unions have filed a lawsuit to block that part of the new personnel system.
England assured the senators that standards used to judge employees would be set out in writing, that the department would act in accordance with underlying law on employee appeals, that the in-house labor board “will have independence” and that Defense plans to provide 1 million hours of training for the initial stage of the NSPS.
But England suggested the answers to many questions will hinge on how talks go between administration officials and union leaders
Some U.S. Security Agents Chafe Under Speech Limits
By ERIC LIPTON
ASHINGTON, April 25 - It would be natural to expect that as president of an employee association that represents more than 1,000 federal air marshals, Frank Terreri would be a reasonably outspoken guy.
But since Mr. Terreri became the association's president two years ago, he has been effectively prohibited by the rules of the Federal Air Marshal Service from speaking in public about airline safety matters. He has never been quoted in a newspaper article or written letters to the editor or to members of Congress outside his district.
These limitations - based on a ban, imposed on all federal air marshals, on speaking about their work without explicit permission - set off a feud last year between Mr. Terreri and the marshal service, part of the Department of Homeland Security.
Mr. Terreri, who was suspended from active duty in October after sending a personal e-mail message to another air marshal that was critical of a colleague, picked up his badge and gun Monday after being told that he would soon be back patrolling the skies.
Four days earlier, the American Civil Liberties Union filed a lawsuit on Mr. Terreri's behalf in United States District Court in Riverside, Calif., claiming that the department was violating his free speech rights and jeopardizing public safety by preventing agents from serving as whistleblowers.
"He has serious concerns about policies that he believes threaten the effectiveness of the Federal Air Marshal Service that make us more vulnerable to another 9/11-type attack," said Peter J. Eliasberg, a civil liberties lawyer representing Mr. Terreri, 38, who lives in the Riverside area.
The case may end up serving as a test of restrictions imposed on workers throughout the Department of Homeland Security, whose rights to speak out publicly are often compromised, employee leaders say, because of excessive concern about the possibility that their comments might compromise public safety.
"They are abusing the power they have under the guise of national security," said Shawn Moran, vice president of National Border Patrol Council local in San Diego.
The rules given to air marshals are quite explicit. A 2002 employee policy statement says they may not "criticize or ridicule" the agency "by speech, writing or other expression," and they may not "address public gatherings, appear on radio or television, prepare any articles for publication" or release any information about the agency unless explicitly authorized to do so by management.
Limits on public comments by Border Patrol agents are not as well defined, but union leaders say that many agents fear they will be fired if they speak publicly.
David M. Adams, a spokesman for the Federal Air Marshals Service, said the restrictions were necessary because marshals work in plain clothes, ready to step forward only in the event of a hijacking or other emergency.
"Obviously there are certain perimeters about discussing our policies in the media because of the need to ensure the safety of our work force and the flying public," Mr. Adams said.
Mr. Terreri's lawyer said his client had no interest in discussing matters that might compromise national security. In fact, the e-mail message that resulted in his removal from active duty criticized another air marshal who, with permission from management, had appeared in a People magazine article that disclosed operational details Mr. Terreri believed should not have been made public. The article reported that air marshals board the plane before passengers do.
Shortly before Mr. Terreri was removed from active duty, his employee group, the air marshals' division of the Federal Law Enforcement Association of Lewisberry, Pa., called for the resignation of Thomas D. Quinn, the agency director. In a statement released by an individual who does not work for the service, the group said that by requiring marshals to dress conservatively and cut their hair in a military style, and to identify themselves when checking into hotels to get a discount rate, the agency was compromising safety.
Mr. Adams said the complaints came from a small minority of air marshals. He also said that the decision to reinstate Mr. Terreri had nothing to do with the lawsuit.
"There is no longer any reason not to put him back into flight status at this present time," he said, adding that an investigation had been completed into the e-mail message.
Mr. Terreri's lawyer said his client was determined to pursue the lawsuit.
"Secrecy can be the enemy of accountability and security," Mr. Eliasberg said.
Airport security comes at a cost
April 26, 2005
Our position is: Americans need to decide what price they are willing to pay for airport security.
Two government reports are expected to conclude that security at U.S. airports isn't much better under federal control than it was before the Sept. 11 terrorist attacks, when airports employed private screeners.
Airline passengers have endured pat-downs and luggage checks; taxpayers have forked over $12 billion in upgrades for security personnel and equipment. Both groups should feel fleeced.
Reports by the Government Accountability Office and the Homeland Security Department's inspector general are expected to trigger calls for scrapping the federal screening system operated by the Transportation Security Administration. Other critics will highlight a need for better screening equipment.
Previous audits suggest that both federal screeners and privately contracted security guards perform roughly the same -- not well enough. Before the federal security system is abandoned, private firms need to prove they can do better.
Virtually everyone agrees outdated screening equipment is a problem. Devices known as Puff Portals, which can detect the tiniest traces of explosives on clothes, skin or luggage, and Backscatter X-rays, which can detect explosives no matter where they are hidden, are vastly superior to wands and scanners now in use. But they are expensive and pose privacy issues.
What is really hampering airport security, however, is that the nation hasn't agreed on how much security it wants and at what price -- in terms of both dollars and loss of liberty.
While so much attention is focused on passenger screening, cargo put on airliners is largely unscreened. Private aircraft and helicopters remain vulnerable to terrorists. And airport perimeter security is inadequate.
Americans need to seriously discuss these issues now, before terrorists try again to cripple cities, or perhaps the entire nation, with coordinated attacks that take advantage of inadequate security.