Peter B. Broida

Attorney at Law                                                                                           2009 North Fourteenth Street, Suite 705

                                                                                                                     Arlington, VA 22201

                                                                                                                     Tel. (703) 841-1112

                                                                                                                     Fax (703) 841-1006

July 11, 2006

Hon. Neil A.G. McPhie, Chairman

Hon. Mary M. Rose, Vice Chairman

Hon. Barbara J. Sapin, Member

Merit Systems Protection Board

1615 M Street, N.W.

Washington, DC 20419

Dear Chairman McPhie, Vice Chairman Rose, and Member Sapin:

It was a pleasure to have met with each of you earlier this week at the MSPB conference sponsored by the Washington Regional Office.

My experience with the Board dates back to its inception, and I have had the honor and pleasure to have been acquainted with all of the members of the Board, with most of the Board ‘s executives, managers, and judges, and with many of the practitioners who frequently represent agencies and employees before the Board.

Although no one would question the ability of the Board, or any other federal agency, to create its own rules of practice and regulations, and do so through formal rulemaking procedures, all courts in the federal system (district and appellate) have their own advisory committees comprised of judges, court executives, and practitioners. These advisory committees provide suggestions for informal as well as formal improvements in court practices, and the committees also review and comment on formal rulemaking initiatives by the courts.

The MSPB is a quasi-judicial body, and like its reviewing court, the Federal Circuit, I think that the Board would benefit from suggestions and comments by a committee comprised of Board officials and practitioners drawn from representatives of management, employees, and the national federal labor unions.

Informal discussions, frank exchanges of views, and the experience of seasoned practitioners would serve, I believe, as a useful adjunct to formal rulemaking procedures involving Board practices, to which the usual response is either no response or the occasional submission from a person or organization who happens to receive a Federal Register notice of proposed rulemaking.

Because an advisory committee would not have actual authority to promulgate rules or change MSPB practices, the existence of the committee would not impact upon the Board‘s relationship with the union representing MSPB professional employees. The functioning of an advisory committee could probably be carried out with minimal investment of MSPB resources other than access to government e-mail systems and the occasional use of a conference room or a telephone conference facilities.

The MSPB has no natural constituency, as does, for example, the EEOC or the NLRB. Opportunities for interchange between and among MSPB members, executives, and practitioners are relatively few. Those opportunities that exist are frequently more in the context of educational presentations or social events, the purpose of which is not to rigorously review or improve MSPB practices. The formation of an advisory committee fills a void in Board operations.

I would suggest that an advisory committee have co-chairmen, one of which would be an MSPB official with the time and interest, as well as dispassionate objectivity, necessary to objectively assist in review and improvements upon Board practices, some of which have been in existence and unchanged since 1979.

I can think of any number of practitioners in both government and the private sector who would be honored to have a role in the formation, administration, and continuing deliberations of an advisory committee. Certainly I would be happy to devote whatever time, effort, and reasonable expense would be entailed in the formation of a committee.

It seems unfortunate to me that there are efforts by some federal agencies to create their own personnel systems, with or without MSPB involvement, which serve only to fragment and further complicate what is already a fragmented and extremely complex process. Involvement by the MSPB of practitioners from various agencies and from the private sector, as well as by unions, will serve not only to improve Board practices over the long run but also to demonstrate that the Board is receptive to the needs of those who are now required by law to appear before the Board. The greater the involvement of those who appear before the Board in the working processes of the Board, the less likely it would be that those same organizations and individuals would seek to avoid the Board and either advocate separate personnel systems or the use of alternate procedures, such as arbitration, in an effort to avoid litigation before the MSPB.

I shall look forward to hearing from you, and I would be happy to meet with you concerning this proposal. If you were to meet with me, I would be pleased to bring with me some individuals who are well–regarded representatives of agencies, employees, and labor unions.

Your consideration is much appreciated.

With kindest regards, I am,

Yours very truly,

Peter B. Broida