The Code of Federal Regulations of the United States of America Having ...

8 Temporary appointment. [Note] 54 Annual and sick leave regulations. 12 Removals and reductions.

ed]

[Amend

1.107 Reemployment; debarment period.

AUTHORITY: §§ 1.101 to 1.107, inclusive, issued under R.S. 1753, sec. 7, 22 Stat. 406, sec. 9, 53 Stat. 1148, sec. 2, 54 Stat. 767, sec. 701, 56 Stat. 181; 5 U.S.C. 631, 638, 18 U.S.C. and Sup., 61h; Civil Service Rule XVI, 5 CFR, Cum. Supp., 16.1.

SOURCE: 1.101 to 1.107, inclusive, contained in Regulations, Civil Service Commission, Nov. 6, 1944, 9 F.R. 14223.

CROSS REFERENCE: For rules of practice under Hatch Political Activity Act, see Part 23 of this chapter.

§ 1.101 Investigations—(a) Joint investigations. Investigations of charges

of political activity on the part of an officer or employee (both hereinafter comprehended within the term "employee") subject to the provisions of § 1.1, shall be conducted jointly by representatives of the Commission and of the department or agency where the individual is employed, unless either the Commission or the department or agency signifies that it will be unable to participate in the investigation. The Commission shall be notified of any

[Revised]

complaint of political activity received by a department or agency and shall be given an opportunity to cooperate in any investigation that the department or agency may decide to make. Likewise, the Commission will not proceed with any investigation until the department or agency has been notified and has been given an opportunity to participate.

(b) Statement of employee; witnesses. During the course of the investigation the employee shall be afforded an opportunity to make a statement, either personally or in writing before the investigator, and he shall be allowed to furnish names of witnesses who will support the statements he has made to the investigator.

§ 1.102 Investigation by correspondence. In case the complaint involves a political activity violation that may be established by record evidence, the investigation may be conducted by correspondence. In such cases, the accused employee will be given an opportunity to furnish in writing any statement or information that he may desire and the employing department will be furnished a copy of the letter directed to such accused employee allowing him the opportunity to furnish a statement.

§ 1.103 Proposed order. When the Commission reaches the conclusion that a violation of § 1.1 has been established by the investigation, it shall issue a pro

posed order. This order, which shall include a statement of the charges against the employee and of the information in support thereof, shall be sent to the employee by registered mail, and he shall be allowed fifteen days from the date of service to respond thereto in writing. A copy of this order shall also be sent to the department or agency in which the individual is employed. With his reply to the proposed order, the employee may request a hearing as hereinafter provided.

§ 1.104 Hearing-(a) When granted. The granting of a hearing shall not be a matter of right but shall be within the discretion of the Commission. No hearing shall be authorized in cases where the employee has admitted a violation or where a violation is established by indisputable record evidence.

(b) Where held; testimony under oath; appearances; counsel. Hearings shall be held before a hearing examiner designated by the Commission and shall be at the Commission's office in Washington, D. C., unless the Commission shall order that the hearing be held elsewhere. All testimony shall be under oath or affirmation. The employee may appear personally or by or with counsel. Counsel appearing shall have been admitted to practice before the Commission in accordance with § 23.4 of this chapter.

(c) Scope of hearing. The hearing shall be of the limited scope necessitated by the Commission's lack of power of subpoena in proceedings under § 1.1. Because of the absence of that authority, it cannot undertake to conduct said hearing as a proceeding de novo, or to have evidence introduced therein in support of the charges against the respondent. Owing to the lack of subpoena power, evidence in support of charges must be limited to information given voluntarily. Such information is obtained upon an understanding of confidential treatment. Consequently, evidence supporting the charges cannot be introduced at the hearing. The hearing shall be unilateral, that is, it shall be only for the presentation of evidence on behalf of the employee in rebuttal of the charges disclosed by the proposed order. Counsel for the Commission may crossexamine witnesses.

(d) Report or summary of hearing. It shall be within the discretion of the

hearing examiner to permit, and fix the time for, filing of briefs. The proceeding at the hearing will not be reported, unless the Commission shall so direct; but the employee shall have the privilege of himself having the evidence taken stenographically. If the proceeding is not taken by a reporter on behalf of the Commission, the employee and Commission counsel shall submit a summary thereof to the hearing examiner within a time fixed by him. Any disagreement concerning the contents of the summary shall be resolved by the examiner, and the parties may file written exceptions. The summary and any exceptions shall be certified by the hearing examiner and shall become a part of the record.

§ 1.105 Final order-(a) Basis for; reply. The Commission's final order shall be based on the entire record of the case, including the report of the investigation, the reply of the employee to the proposed order, and in cases where a hearing has been granted, the report of the hearing examiner. If the employee does not reply to the proposed order within fifteen days from the date of service, a final order shall be based on the report of investigation alone.

(b) Contents; service. The final order shall contain a statement of the charges that have been substantiated and shall prescribe the penalty to be imposed. Copies of the final order shall be served on the respondent and on the department or agency wherein the individual is employed.

$ 1.106 Penalties(a) Removal. Since violations of § 1.1 are by law violations also of section 9 (a) of the Hatch Political Activity Act, the penalty required by that act must of necessity be imposed. The employee must be immediately removed from the position or office held and may not again be employed in such position or office. If the appointing officer fails to carry out the instructions of the Commission within ten days after receipt thereof, the Commission shall certify the facts to the proper disbursing and auditing officer for proceedings in accordance with § 15.1 of this chapter.

(b) Report of removal for reasons other than political activity; reemployment prohibited. When the Commission directs the removal of an employee for a violation of § 1.1 and the Hatch Political Activity Act, the penalty laid

down in paragraph (a) of this section shall be applied, even where the department or agency reports that the individual has been removed, on grounds other than a violation of § 1.1 and the Hatch Political Activity Act, and the individual may not again be employed in the position from which he was removed. The provisions of paragraph (a) of this section regarding reemployment in positions other than the one from which removal was effected shall also apply.

(c) Resignation prior to Commission's decision. The provisions of paragraph (a) of this section shall apply also where an employee has resigned from his position or office prior to the Commission's determination that he had violated § 1.1 and the Hatch Political Activity Act.

$ 1.107 Reemployment; debarment period. An employee removed for violation of $1.1 may be reemployed in accordance with the provisions of Civil Service Rules in any position for which he can qualify other than the one from which he was removed: Provided, That in all cases involving a finding that a Federal employee has engaged in prohibited political activity, the Commission shall consider the matter from a suitability standpoint and shall establish a definite period of debarment applicable to the employee for all Federal positions within the Commission's jurisdiction.

(3) Probationary appointment. A person selected for appointment shall be duly notified by the appointing officer and upon accepting and reporting for duty shall receive from such officer a certificate of probational appointment. The first 6 months of service under this appointment shall be a probationary period, but the Commission and the department concerned may by regulation fix a longer probationary period for any specified positions. If and when, after a full and fair trial, the conduct or capacity of the probationer is not satisfactory to the appointing officer, the probationer may at any time thereafter during this period

be so notified in writing, with a full statement of reasons, and this notice shall terminate his service. Efficiencyrating reports of all probationers shall be filed periodically within the department at such times and in such form as the regulations of the Commission shall provide. If at the end of the probationary period the probationer's service rating has been satisfactory, to the extent required by regulation, a certificate to that effect filed within the department and his retention in the service shall confirm his absolute appointment. If, however, his service rating has been unsatisfactory as so provided, his service shall be terminated at the end of the probationary period. A probationer separated from the service without delinquency or misconduct may be restored to the register of eligibles in the discretion of the Commission for the remainder of any period of eligibility thereon. [Subparagraph (3) amended Apr. 18, 1944, 9 F.R. 4127, and May 9, 1944, 9 F.R. 4971]

CODIFICATION: § 7.2 (a) (3) was amended Apr. 18, 1944. The last sentence was added May 9, 1944.

APPENDIX-POSITIONS FOR WHICH THE PROBATIONARY PERIOD WAS BY REGULATION EXTENDED TO ONE YEAR

Apr. 21, 1941 Jan. 6, 1942

Librarian, P-3, Library-‒‒‒‒ Research assistant, P-2, Li

brary.

Medical Director, P-7---Medical Division, all positions classified in the professional service, including that of associate medical officer in the regional offices. Junior and Senior rating board members, grades CAF-7 through CAF-10, Office of Chief, Investigations Division. Professional and technical examiners, grades P-1 or CAF-5 and above, Board of Appeals and Review, Examining and Personnel Utilitization Division, and Research Division (this includes civil service examiners, appeals examiners, and oral examiners). Reviewing examiner, P-2, Retirement Division. Statistician, grades P-1

Do.

countant, CAF-9.