« PreviousContinue »
(d) No member, officer, or employee of the Commission other than a special Government employee with service of less than sixty days in a given calendar year, who has been an employee in an executive level position or a position with a comparable or greater rate of pay, or in a position which involved significant decision making or supervisory responsibility as designated by the Director of Office of Government Ethics under 18 U.S.C. 207(d)(1)(C), shall, within one year after such employment has ceased, knowingly engage in conduct described in the next sentence. The prohibited knowing conduct is that of acting as attorney or agent for, or otherwise representing anyone other than the United States, in any formal or informal appearance before, or with the intent to influence, making any oral or written communication on behalf of anyone other than the United States (1) to the Commission, or any employee thereof, (2) in connection with any rulemaking or any matter enumerated and described in paragraph (a)(2) of this section and (3) which is pending before the Commission or in which it has a direct and substantial interest.
(e) No partner of an employee shall act as agent or attorney for anyone other than the United States before an organization enumerated in paragraph (a)(1) of this section, or any officer or employee thereof, in connection with any matter enumerated and described in paragraph (a)(2) of this section in which such Government employee is participating or has participated personally and substantially as a Government employee through deci. sion, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, or which is the subject of his or her official responsibility.
shall cause a copy of written charges of the violation(s) to be served upon such individual, either personally or by registered mail. The charges shall be accompanied by a notice to the former employee to show cause within a specified time of not less than 30 days after receipt of the notice why he or she should not be prohibited from engaging in representational activities in relation to matters pending before the Commission, as authorized by 18 U.S.C. 207(j), or subjected to other appropriate disciplinary action under that statute. The notice to show cause shall include:
(1) A statement of allegations, and their basis, sufficiently detailed to enable the former employee to prepare an adequate defense;
(2) Notification of the right to a hearing; and
(3) An explanation of the method by which a hearing may be requested.
(b) If a former employee who submits an answer to the notice to show cause does not request a hearing or if the Designated Ethics Officer does not receive an answer within five days after the expiration of the time prescribed by the notice, the Designated Ethics Officer shall forward the record, including the report(s) of investigation, to the Chairman. In the case of a failure to answer, such failure shall constitute a waiver of defense.
(c) Upon receipt of a former employee's request for a hearing, the Designated Ethics Officer shall notify him or her of the time and place thereof, giving due regard both to such person's need for an adequate period to prepare a suitable defense and an expeditious resolution of allegations that may be damaging to his or her reputation.
(d) The presiding officer at the hearing and any related proceedings shall be a Federal administrative law judge or other Federal official with comparable duties. The presiding officer shall insure that the former employee has, among others, the rights:
(1) To self-representation or representation by counsel;
(2) To introduce and examine witnesses and submit physical evidence;
8 500.6 Disciplinary proceedings against
former employees. (a) Upon a determination by the Commission's Designated Ethics Officer, after investigation, that there is reasonable cause to believe that a former officer or employee, including a former special Government employee, has violated 18 U.S.C. 207 (a), (b) or (c), the Designated Ethics Officer
(3) To confront and cross-examine adverse witnesses;
(4) To present oral argument; and
(5) To a transcript or recording of the proceedings, upon request.
(e) The Designated Ethics Officer shall designate one or more officers or employees of the Commission to present the evidence against the former employee and perform other functions incident to the proceedings.
(f) A decision adverse to the former employee must be sustained by substantial evidence that he or she violated 18 U.S.C. 207 (a), (b) or (c).
(g) The presiding officer shall issue an initial decision based exclusively on the transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, and shall set forth in the decision findings and conclusions, supported by reasons, on the material issues of fact and law presented on the record.
(h) Within 30 days after issuance of the initial decision, either party may appeal to the Chairman, who in that event shall issue the final decision based on the record of the proceedings or those portions thereof cited by the parties to limit the issues. If the final decision modifies or reverses the ini. tial decision, the Chairman shall specify the findings of fact and conclusions of law that vary from those of the presiding officer.
(i) If a former employee fails to appeal from an adverse initial decision within the prescribed period of time, the presiding officer shall forward the record of the proceedings to the Chairman.
(j) In case of a former employee who filed an answer to the notice to show cause but did not request a hearing, the Chairman shall make the final decison on the record submitted by the Designated Ethics Officer pursuant to subsection (b) of this section.
(k) The Chairman, in a case where: (1) The defense has been waived;
(2) The former employee has failed to appeal from an adverse initial decision; or
(3) The Chairman has issued a final decision that the former employee violated 18 U.S.C. 207 (a), (b) or (c) may issue an order:
8 501.1 Extent of authority.
(a) Subpoenas, oaths and affirmations. The Commission or any member thereof may issue subpoenas, administer oaths and affirmations, take affidavits, conduct investigations and examine witnesses in connection with any hearing, examination, or investigation within its jurisdiction.
(b) Certification. The Commission or any member thereof may, for the purpose of any such hearing, examination, or investigation, certify the correctness of any papers, documents, and other matters pertaining to the administration of any laws relating to the functions of the Commission.
8 501.2 Subpoenas.
(a) Issuance. A member of the Commission or a designated employee may, on such member or employee's own volition of upon written application by any party and upon a showing of general relevance and reasonable scope of the evidence sought, issue subpoenas requiring persons to appear and testify or to appear and produce documents.
wherein such person resides or transacts business or wherever such person may be found.
Applications for issuance of subpoenas duces tecum shall specify the books, records, correspondence, or other documents sought. The subpoena shall show on its face the name and address of the party at whose request the subpoena was issued.
(b) Deposit for costs. The Commission or designated employee, before issuing any subpoena in response to any application by an interested party, may require a deposit in an amount adequate to cover fees and mileage involved.
(c) Motion to quash. If any person subpoenaed does not intend to comply with the subpoena, such person shall, within 15 days after the date of service of the subpoena, petition in writing to quash the subpoena. The basis for the motion must be stated in detail. Any party desiring to file an answer to a motion to quash must file such answer not later than 15 days after the filing of the motion. The Commission shall rule on the motion to quash, duly recognizing any answer thereto filed. The motion, answer, and any ruling thereon shall become part of the official record.
(d) Appeal from interlocutory order. An appeal may be taken to the Commission by the interested parties from the denial of a motion to quash or from the refusal to issue a subpoena for the production of documentary evidence.
(e) Order of court upon failure to comply. Upon the failure or refusal of any person to comply with a subpoena, the Commission may invoke the aid of the United States District Court within the jurisdiction of which the hearing, examination or investigation is being conducted, or wherein such person resides or transacts business. Such court, pursuant to the provisions of Pub. L. 81-696, approved August 16, 1950 (50 U.S.C. App. 2001(d)), may issue an order requiring such person to appear at the designated place of hearing, examination or investigation, then and there to give or produce testimony or documentary evidence concerning the matter in question. Any failure to obey such an order may be punished by the court as a contempt thereof. All processes in any such case may be served in the judicial district
8 501.3 Service of process.
(a) By whom served. The Commission shall serve all orders, notices and other papers issued by it, together with any other papers which it is required by law to serve.
(b) Kinds of service. Subpoenas, orders, rulings, and other processes of the Commission may be served by delivering in person, by first class or registered mail, or by telegraph or by publication.
(c) Personal service. Service by delivering in person may be accomplished by:
(1) Delivering a copy of the document to the person to be served, to a member of the partnership to be served, to an executive officer or a director of the corporation to be served, or to a person competent to accept service; or
(2) By leaving a copy thereof at the residence, principal office or place of business of such person, partnership, or corporation.
(3) Proof of service. The return receipt for said order, other process or supporting papers, or the verification by the person serving, setting forth the manner of said service, shall be proof of the service of the document.
(4) Service upon attorney or agent. When any party has appeared by an authorized attorney or agent, service upon such attorney or agent shall be deemed service upon the party.
(d) Service by first class mail. Seryice by first class mail shall be regarded as complete upon deposit in the United States mail properly stamped and addressed.
(e) Service by registered mail. Service by registered mail shall be regarded as complete on the date the return post office registered receipt for said orders, notices and other papers is received by the Commission.
(f) Service by telegraph. Service by telegraph shall be regarded as complete when deposited with a telegraph company properly addressed and with charges prepaid.
(g) Service by publication. Service by publication is completed when due notice shall have been given in the publication for the time and in the manner provided by law or rule.
(h) Date of service. The date of service shall be the day upon which the document is deposited in the United States mail or delivered in person, as the case may be.
(1) Filing with Commission. Papers required to be filed with the agency shall be deemed filed upon actual receipt by the Commission accompanied by proof of service upon parties required to be served. Upon such actual receipt the filing shall be deemed complete as of the date of deposit in the mail or with the telegraph company as provided in paragraphs (e) and (f) of this section.
8 501.4 Witnesses.
(a) Examination of witnesses. Witnesses shall appear in person and be examined orally under oath, except that for good cause shown, testimony may be taken by deposition.
(b) Witness fees and mileage. Witnesses summoned by the Commission on its own behalf or on behalf of a claimant or interested party shall be paid the same fees and mileage that are allowed and paid witnesses in the District Courts of the United States. Witness fees and mileage shall be paid by the Commission or by the party at whose request the witness appears.
(c) Transcript of testimony. Every person required to attend and testify or to submit documents or other evidence shall be entitled to retain or, on payment of prescribed costs, procure a copy of the transcript of the testimony or the documents produced. 8 501.5 Depositions.
(a) Application to take. (1) An application to take a deposition shall be in writing setting forth the reason why such deposition should be taken, the name and address of the witness, the matters concerning which it is expected the witness will testify, and the time and place proposed for the taking of the deposition, together with the name and address of the person before whom it is desired that the deposition be taken. If such deposition is being
offered in connection with a hearing or examination, the application for deposition shall be made to the Commission at least 15 days prior to the proposed date of such hearing or examination.
(2) Application to take a deposition may be made during a hearing or examination, or subsequent to a hearing or examination, only where it is shown for good cause that the facts as set forth in the application to take the deposition were not within the knowledge of the person signing the application prior to the time of the hearing or examination.
(3) The Commission or its representative shall, upon receipt of the cation and a showing of good cause, make and cause to be served upon the parties an order which will specify the name of the witness whose deposition is to be taken, the time, the place, and where practicable the designation of the officer before whom the witness is to testify. Such officer may or may not be the one specified in the application. The order shall be served upon all parties at least 10 days prior to the date of the taking of the deposition.
(b) Who may take. Such deposition may be taken before the designated officer or, if none is designated, before any officer authorized to administer oaths by the laws of the United States. If the examination is held in a foreign country, it may be taken before a secretary of an embassy or legation, consul-general, consul, vice consul, or consular agent of the United States.
(c) Examination and certification of testimony. At the time and place specified in said order the officer taking such deposition shall permit the witness to be examined and cross-examined under oath by all parties appearing, and the testimony shall be reduced to writing by, or under the direction of, the presiding officer. All objections to questions or evidence shall be deemed waived unless made in accordance with paragraph (d) of this section. The officer shall not have power to rule upon any objections but shall note them upon the deposition. The testimony shall be subscribed by the witness in the presence of the officer who shall attach a certificate stating that the witness was duly sworn,
that the deposition is a true record of their order and reduce the testimony the testimony and exhibits given by to writing in the witness' own words. the witness and that said officer is not (h) Fees. A witness whose deposition counsel or attorney to any of the in- is taken pursuant to the regulations in terested parties. The officer shall im- this Part, and the officer taking the mediately seal and deliver an original deposition, shall be entitled to the and two copies of said transcript, to- same fees and mileage allowed and gether with the officer's certificate, by paid for like service in the United registered mail to the Foreign Claims States District Court for the district in Settlement Commission, Washington, which the deposition is taken. Such DC 20579 or to the field office desig- fees shall be paid by the Commission nated.
or by the party at whose request the (d) Admissibility in evidence. The
deposition is being taken. deposition shall be admissible in evidence, subject to such objections to
(52 FR 17559, May 11, 1987, as amended at the questions and answers as were
52 FR 19731, May 27, 1987) noted at the time of taking the deposi
8 501.6 Documentary evidence. tion, or within ten (10) days after the return thereof, and would be valid Documentary evidence may consist were the witness personally present at
of books, records, correspondence or the hearing.
other documents pertinent to any (e) Errors and irregularities. All
hearing, examination, or investigation errors or irregularities occurring shall within the jurisdiction of the Commis. be deemed waived unless a motion to sion. The application for the issuance suppress the deposition or some part
of subpoenas duces tecum shall specify thereof is made with reasonable the books, records, correspondence or promptness after such defect is, or other documents sought. The produc with due diligence might have been,
tion of documentary evidence shall ascertained.
not be required at any place other (f) Scope of use. The deposition of a
than the witness' place of business. witness, if relevant, may be used if the The production of such documents Commission finds:
shall not be required at any place if
, (1) That the witness has died since prior to the return date specified in the deposition was taken; or
the subpoena, such person either has (2) that the witness is at a distance
furnished the issuer of the subpoena greater than 100 miles radius of Wash- with a properly certified copy of such ington, DC, the designated field office documents or has entered into a stipu. or the designated place of the hearing;
lation as to the information contained or
in such documents. (3) that the witness is unable to attend because of other good cause
8 501.7 Time. shown.
(a) Computation. In computing any (g) Interrogatories and cross-inter- period of time prescribed or allowed rogatories. Depositions may also be by the regulations, by order of the taken and submitted on written inter- Commission, or by any applicable statrogatories in substantially the same ute, the day of the act, event, or demanner as depositions taken by oral fault after which the designated examinations. When a deposition is period of time begins to run is not to taken upon interrogatories and cross- be included. The last day of the period interrogatories, none of the parties so computed is to be included, unless it shall be prese or represent and no is a Saturday, Sunday or legal holiday, person, other than the witness, such in which event the period runs until person's representative or attorney, a the end of the next day which is neistenographic reporter and the presid- ther a Saturday, Sunday nor a holiing officer, shall be present at the ex- day. When the period of time preamination of the witness, which fact scribed or allowed is less than 7 days, shall be certified by such officer, who intermediate Saturdays, Sundays and shall propound the interrogatories and holidays shall be excluded in the comcross-interrogatories to the witness in putation.