Page images
PDF
EPUB

Subversive Activities Control Act of 1950, allow the pleadings to be amended and which shall state in plain and concise shall do so freely when the presentation language the facts upon which the peti- of the merits of the action will be subtioner relies in support of his prayer. served thereby and the objecting party

(b) Any motions addressed to the pe- fails to satisfy the Board, a member tition shall be made within ten (10) days thereof, or a hearing examiner that the after the service of the petition.

admission of such evidence would prej$201.7 Answers.

udice him in maintaining his action or

defense upon the merits. The Board (a) The organization or individual

may grant a continuance if necessary to served with a petition or a process re- enable the objecting party to meet such quiring an answer shall,' within twenty evidence. days after the service, file an answer thereto under oath. The answer shall

8 201.9

Notice of hearing. contain a short and simple statement of After issue has been joined by petition the facts which constitute the grounds and answer, the Board shall set an early of defense. The answer shall specifically date for hearing. admit, deny or explain each of the facts alleged in the petition or process requir

8 201.10 Motions. ing an answer, unless the organization (a) All motions and requests for rulor individual is without knowledge of ings by the Board, a member thereof, or particular facts alleged or the person the hearing examiner shall state briefly signing the answer relies upon the con- the purpose thereof and the relief sought, stitutional privilege against self-incrimi- and supporting affidavits, records, and nation as to particular facts alleged, in other papers, except such as have been which case this shall be stated, and such previously filed, shall be filed with the statement shall operate as a denial. All motions and clearly referred to therein. allegations in the petition or process re- (b) A reply to any written motion quiring an answer, if no answer is filed shall be filed within seven (7) days after or any allegation thereof is not specifi- date of service thereof, unless a different cally denied or explained by the answer,

time is fixed by the Board or the hearing shall be deemed admitted to be true and examiner. A reply to a reply is not permay be so found by the Board, except mitted unless under unusual circumthat where the person signing the stances and specifically authorized by answer relies upon the privilege against the Board, or the hearing examiner. self-incrimination, such allegation or

(c) Motions made at a hearing may allegations shall be deemed denied. be stated orally, provided that the pre

(b) Where an organization or indi- siding member of the Board, or the hearvidual declines or fails to appear at a ing examiner may require that such mohearing accorded to such organization or tions be reduced to writing and filled and individual by the Board, pursuant to this served in the same manner as written section, the Board may, without further motions. All motions which relate to the proceedings and without the introduc

introduction or striking of evidence shall tion of any evidence, enter an order re

be made to the presiding Board member quiring such organization or individual to

or the hearing examiner as the case may register or denying the application of

be. No exception is necessary to the rulsuch organization or individual as the

ing of a presiding member or hearing case may be.

examiner to preserve the objection be[15 F.R. 7920, Nov. 21, 1950, as amended at

fore the Board or appellate courts. 27 F.R. 4835, May 23, 1962]

(23 F.R. 267, Jan. 15, 1958] 8 201.8 Amendment of pleadings. 8 201.11 Continuances and extensions

of time. At any time during the course of the proceedings, either party may, with the (a) Except as otherwise expressly proconsent of the Board, a member thereof, vided by law, the Board, a member or a hearing examiner, amend or con- thereof, or its examiners, for cause form the pleadings to the proof. If evi- shown, may extend any time limits predence is objected to at the hearing on scribed for filing any papers, except time the ground that it is not within the is- for filing appeal, and may continue or sues of the pleadings, the Board, a mem- adjourn any hearing. A hearing before ber thereof, or a hearing examiner may the Board, or a member thereof, or & be taken by a deposition. dignity of the Board. He will note on

hearing examiner shall begin at the time § 201.15 Contumacious conduct. and place ordered by the Board, but

If, in the course of a hearing before the thereafter may be adjourned from time

Board or any member thereof, or any to time.

examiner, a party or counsel is guilty (b) Applications for continuances and

of misbehavior which obstructs the hearextensions of time shall be addressed to

ing, such party or counsel may bethe discretion of the hearing examiner,

cluded from further participation in the and shall be made in writing and must

hearing. be accompanied by an affidavit showing exceptional circumstances.

$201.16 Subpenas. $ 201.12 Date for hearing.

(a) The Board, any member thereof,

or any hearing examiner designated by All hearings shall be public, and each

the Board may require by subpena the party to the proceeding shall have the

attendance and testimony of witnesses right to present its case with the proper

and the production of books, papers, corassistance of counsel, to offer oral or doc

respondence, memoranda, and other relumentary evidence, to submit rebuttal

evant records. Subpenas shall be issued evidence, and to conduct such cross

on behalf of any party to the proceeding examination as may be required for a

upon request and upon a statement or full and true disclosure of the facts, all showing of general relevance and reasonwithin the provisions of the Administra- able scope of the evidence sought. Such tive Procedures Act, and irrelevant, attendance of witnesses and the producimmaterial, and unduly repetitious evi- tion of such documentary evidence dence, as a matter of policy, shall be

deemed reasonable by the Board may be excluded.

required from any place in the United

States at any designated place of hear8 201.13 Record.

ing. Witnesses summoned shall be paid The transcript of testimony and exhib

by the party requesting the subpena the its, together with all papers and requests

same fees and mileage as are paid to wit

nesses in the District Courts of the United filed in the proceeding, shall constitute

States. the record before the Board. The record

(b) For good cause shown, the subshall be filed in the office of the Executive

pena may be quashed by the Board or a Secretary of the Board, and a copy of the

member thereof or examiner who issued same shall be available to the parties the subpena. upon payment of the necessary costs.

8 201.17 Witnesses. 8 201.14 Hearing examiners.

(a) Witnesses shall be examined orally, The hearing examiner is charged with except that for good and exceptional the duty of conducting a fair and impar- cause for departing from the general rule tial hearing and of maintaining order in the Board may permit their testimony to form and manner consistent with the

(b) Witnesses summoned by the the record any disregard by counsel of

Board shall be paid the same fees and his rulings on matters of order and pro

mileage as are paid witnesses in the

courts of the United States. Witnesses cedure, and where he deems it necessary

whose depositions are taken, and the shall make special written report thereof to the Board. In the event that any

persons taking such depositions, shall

severally be entitled to the same fees as counsel shall be guilty of disrespectful,

are paid for a like service in the courts of disorderly, or contumacious language or

the United States. conduct in connection with any proceeding, the hearing examiner may, in his

8 201.18 Evidence. discretion, suspend the proceeding and (a) Documentary. Where relevant submit to the Board his report thereon, and material matters offered in evidence together with his recommendation as to are embraced in a document containing whether any rule should be issued to other matters not material or relevant show cause why any such counsel should and not intended to be put in evidence, not be suspended, pursuant to $201.15, or such immaterial or irrelevant parts shall other appropriate action taken as pro- be excluded and shall be segregated invided by law.

sofar as practicable.

end of his service, a former officer or employee has changed areas of responsibility by transferring from one agency to another, the period of his postemployment ineligibility as to matters in a particular area ends 1 year after his responsibility for that area ends. For example, if an individual transfers from a supervisory position in the Internal Revenue Service to a supervisory position in the Post Office Department and leaves that department for private employment 9 months later, he will be free of the restriction of subsection (b) in 3 months insofar as Internal Revenue matters are concerned. He will of course be bound by it for a year in respect of Post Office Department matters.

The proviso following subsections (a) and (b) authorizes an agency head, notwithstanding anything to the contrary in their provisions, to permit a former officer or employee with outstanding scientific qualifications to act as attorney or agent or appear personally before the agency for another in a matter in a scientific field. This authority may be exercised by the agency head upon a "national interest” certification published in the FEDERAL REGISTER.

Subsections (a) and (b) describe the activities they forbid as being in connection with “particular matter(s) involving a specific party or parties" in which the former officer or employee had participated. The quoted language does not include general rulemaking, the formulation of general policy or standards, or other similar matters. Thus, past participation in or official responsibility for a matter of this kind on behalf of the Government does not disqualify a former employee from representing another person in a proceeding which is governed by the rule or other result of such matter.

Subsection (a) bars permanently a greater variety of actions than subsection (b) bars temporarily. The conduct made unlawful by the former is any action as agent or attorney, while that made unlawful by the latter is a personal appearance as agent or attorney. However, neither subsection precludes postemployment activities which may fairly be characterized as no more than aiding or assisting another.8 An individual who do not have "official responsibility,” as that term is defined in section 202(b), their inclusion within the 1-year ban will not have a widespread effect.

has left an agency to accept private employment may, for example, immediately perform technical work in his company's plant in relation to a contract for which he had official responsibility-or, for that matter, in relation to one he helped the agency negotiate. On the other hand, he is forbidden for a year, in the first case to appear personally before the agency as the agent or attorney of his company in connection with a dispute over the terms of the contract. And he may at no time appear personally before the agency or otherwise act as agent or attorney for his company in such dispute if he helped negotiate the contract.

Comparing subsection (a) with the antecedent 18 U.S.C. 284 discloses that it follows the latter in limiting disqualification to cases where a former officer or employee actually participated in a matter for the Government. However, subsection (a) covers all matters in which the United States is a party or has a direct and substantial interest and not merely the "claims against the United States” covered by 18 U.S.C. 284. Subsection (a) also goes further than the latter in imposing a lifetime instead of a 2-year bar. Subsection (b) has no parallel in 18 U.S.C. 284 or any other provision of the former conflict in interest statutes.

It will be seen that subsections (a) and (b) in combination are less restrictive in some respects, and more restrictive in others, than the combination of the prior 18 U.S.C. 284 and 5 U.S.C. 99. Thus, former officers or employees who were outside the Government when the Act came into force on January 21, 1963, will in certain situations be enabled to carry on activities before the Government which were previously barred. For example, the repeal of 5 U.S.C. 99 permits an attorney who left an executive department for private practice a year before to take certain cases against the Government immediately which would be subject to the bar of 5 U.S.C. 99 for another year. On the other hand, former officers or employees became precluded on and after January 21, 1963 from engaging or continuing to engage in certain activities which were permissible until that date. This result follows from the replacement of the 2-year bar of 18 U.S.C. 284 with the lifetime bar of subsection (a) in comparable situations, from the increase in the variety of matters covered by subsection (a) as compared with 18 U.S.C. 284 and from the introduction of the 1-year bar of subsection (b).

Subsection (c) of section 207 pertains to an individual outside the Government who is in a business or professional partnership with someone serving in the executive branch, an independent agency or the District of Columbia. The subsection prevents such individual from acting as attorney or agent for anyone other than the United States in any matters, including those in court, in which his partner in the Government is participating or has participated or which are the subject of his partner's official

8 Subsection (a), as it first appeared in H.R. 8140, the bill which became Public Law 87-849, made it unlawful for a former officer or employee to act as agent or attorney for, or aid or assist, anyone in a matter in which he had participated. The House Judiciary Committee struck the underlined words, and the bill became law without them. It should be noted also that the repealed provisions of 18 U.S.C. 283 made the distinction between one's acting as agent or attorney for another and his aiding or assisting another.

Subsection (c) provides that section 209 does not apply to a special Government employee or to anyone serving the Government without compensation, whether or not he is a special Government employee.

Subsection (d) provides that the section does not prohibit the payment or acceptance of contributions, awards or other expenses under the terms of the Government Employees Training Act (72 Stat. 327, 5 U.S.C. 2301-2319).

STATUTORY EXEMPTIONS FROM CONFLICT OF

INTEREST LAWS

Congress has in the past enacted statutes exempting persons in certain positionsusually advisory in nature—from the provisions of some or all of the former conflict of interest laws. Section 2 of the Act grants corresponding exemptions from the new laws with respect to legislative and judicial positions carrying such past exemptions. However, section 2 excludes positions in the executive branch, an independent agency and the District of Columbia from this grant. As a consequence, all statutory exemptions for persons serving in these sectors of the Government ended on January 21, 1963.

RETIRED OFFICERS OF THE ARMED FORCES

responsibility. Although included in a section dealing largely with postemployment activities, this provision is not directed to the postemployment situation.

The paragraph at the end of section 207 also pertains to individuals in a partnership but sets forth no prohibition. This paragraph, which is of importance mainly to lawyers in private practice, rules out the possibility that an individual will be deemed subject to section 203, 205, 207(a) or 207(b) solely because he has a partner who serves or has served in the Government either as a regular or a special Government employee.

New 18 U.S.C. 208. This section forbids certain actions by an officer or employee of the Government in his role as a servant or representative of the Government. Its thrust is therefore to be distinguished from that of sections 203 and 205 which forbid certain actions in his capacity as a representative of persons outside the Government.

Subsection (a) in substance requires an officer or employee of the executive branch, an independent agency or the District of Columbia, including a special Government employee, to refrain from participating as such in any matter in which, to his knowledge, he, his spouse, minor child or partner has & financial interest. He must also remove himself from a matter in which a business or nonprofit organization with which he is connected or is seeking employment has a financial interest.

Subsection (b) permits the agency of an officer or employee to grant him an ad hoc exemption from subsection (a) if the outside financial interest in a matter is deemed not substantial enough to have an effect on the integrity of his services. Financial interests of this kind may also be made nondisqualifying by a general regulation published in the FEDERAL REGISTER.

Section 208 is similar in purpose to the former 18 U.S.C. 434 but prohibits a greater variety of conduct than the “transaction of business with • *• (a) business entity" to which the prohibition of section 434 was limited. In addition, the provision in section 208 including the interests of a spouse and others is new, as is the provision authorizing exemptions for insignificant interests.

New 18 U.S.C. 209. Subsection (a) prevents an officer or employee of the executive branch, an independent agency or the District of Columbia from receiving, and anyone from paying him, any salary or supplementation of salary from a private source as compensation for his services to the Government. This provision uses much of the language of the former 18 U.S.C. 1914 and does not vary from that statute in substance. The remainder of section 209 is new.

Subsection (b) specifically authorizes an officer or employee covered by subsection (a) to continue his participation in a bona fide pension plan or other employee welfare or benefit plan maintained by & former employer.

Public Law 87–849 enacted a new 18 U.S.C. 206 which provides in general that the new sections 203 and 205, replacing 18 U.S.C. 281 and 283, do not apply to retired officers of the armed forces and other uniformed seryices. However, 18 U.S.C. 281 and 283 contain special restrictions applicable to retired officers of the armed forces which are left in force by the partial repealer of those statutes set forth in section 2 of the Act.

The former 18 U.S.C. 284, which contained a 2-year disqualification against postemployment activities in connection with claims against the United States, applied by its terms to persons who had served as commissioned officers and whose active service had ceased either by reason of retirement or complete separation. Its replacement, the broader 18 U.S.C. 207, also applies to persons in those circumstances. Section 207, therefore applies to retired officers of the armed forces and overlaps the continuing provisions of 18 U.S.C. 281 and 283 applicable to such officers although to a different extent than did 18 U.S.C. 284.

VOIDING TRANSACTIONS IN VIOLATION OF THE

CONFLICT OF INTERESTS OR BRIBERY LAWS

Public Law 87–849 enacted a new section, 18 U.S.C. 218, which did not supplant a preexisting section of the criminal code. However, it was modeled on the last sentence of the former 18 U.S.C. 216 authorizing the President to declare a Government contract void which was entered into in violation of that section. It will be recalled that section 216 was one of the two statutes repealed without replacement.

(b) Objections. Objections to the the officer. After the deposition has been evidence shall be in short form, stating so certified, it shall, together with five the grounds of objection relied upon, and additional copies thereof made by such the transcript shall not include argu- oficer or under his direction, be forment or debate thereon, except as warded by such officer under seal, in an ordered by the Board or hearing exam- envelope addressed to the Board at its iner. Rulings on such objections shall be office, Washington, D.C. Such deposia part of the transcript. No exception tion, unless otherwise ordered by the to the ruling is necessary to preserve the Board for good cause shown, shall be rights of the parties in an appeal to the filed in the record in said proceeding and Board or in the appellate court.

a copy thereof supplied to the party upon $201.19 Depositions.

whose application said deposition was

taken, or his attorney. (a) The Board, any member thereof, or any hearing examiner designated by

$ 201.20 Admissions of fact and genu

ineness of documents. the Board may, in its discretion, order evidence to be taken by deposition in any (a) At any time after answer has hearing pending before the Board at any

been filed, either party may serve upon stage of such hearing. Such deposition the other a written request for admismay be taken before any person desig- sion of the genuineness of any relevant nated by the Board and having the power

documents described in, and exhibited to administer oaths or affirmations. with, the request, or of the truth of any (b) Unless notice be waived, no depo

relevant matters of fact set forth in such sition shall be taken except after reason- documents. Copies of documents shall able notice to the parties.

be delivered with the request unless (c) A motion to take a deposition shall copies have already been furnished or are be made not less than twenty (20) days in the possession or control of the party. prior to the date fixed for the hearing, Each of the matters on which an admisbut for good cause shown the time for sion is so requested shall be deemed admaking such a motion may be extended

mitted unless within a period designated by the Board, a member thereof, or the within the request, not less than ten hearing examiner.

(10) days after service thereof, or within (d) Any party desiring to take the

such further time as the Board or the deposition of a witness shall make appli- hearing examiner may allow on motion cation in writing, setting out the reasons

and notice, the party so served shall why such depositions should be taken serve upon the party making the request and stating the time when, the place a sworn statement either denying specifwhere, and the name and post-office ically the matters of which an admission address of the person before whom it is is requested or setting forth in detail desired the deposition be taken; the

the reasons why he can neither truthname and post-office address of the wit- fully admit nor deny those matters, or ness, and the subject matter or matters

stating that reliance is made on the concerning which the witness is expected constitutional privilege against selfto testify.

incrimination. (e) If good cause be shown, the Board (b) Service required under this secwill make and serve upon the parties or tion may be made upon a party either by their attorneys an order wherein the registering and mailing or by delivering Board shall name the witness whose a copy of the documents to be served to deposition is to be taken and specify the such party or his attorney or by leaving time when, the place where, and the a copy at the principal office or place person before whom the witness is to of business of either. testify, but such time and place and the (15 F.R. 7921, Nov, 21, 1950, as amended at person before whom the deposition is to 27 F.R. 4835, May 23, 1962) be taken so specified in the Board's order

§ 201.21 Briefs. may or may not be the same as those named in said application to the Board.

At the conclusion of a hearing, the offi(f) The testimony of the witness shall cer conducting the hearing may, in his be reduced to writing by the officer be- discretion, permit oral arguments or fore whom the deposition is taken or briefs or both, and prescribe the time and under his direction, after which the dep- other directions for said arguments and osition shall be subscribed by the wit- briefs on behalf of parties to the hearing. ness and certified in the usual form by The time within which oral arguments or

« PreviousContinue »