[Code of Federal Regulations]

[Title 5, Volume 2]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 5CFR752.604]



[Page 66-67]

 

                    TITLE 5--ADMINISTRATIVE PERSONNEL

 

          CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (CONTINUED)

 

PART 752_ADVERSE ACTIONS--Table of Contents

 

 Subpart F_Regulatory Requirements for Taking Adverse Actions Under the 

                        Senior Executive Service

 

Sec. 752.604  Procedures.



    (a) Applicability. The procedures provided in 5 U.S.C. 7543(b) apply 

to any appointee covered by this subpart.

    (b) Notice of proposed action. (1) The notice of proposed action 

shall inform the appointee of his or her right to review the material 

that is relied on to support the reasons for action given in the notice.

    (2) The agency may not use material that cannot be disclosed to the 

appointee or to the appointee's representative or designated physician 

under Sec. 297.204(c) of this chapter to support the reasons in the 

notice.

    (3) Under ordinary circumstances, an appointee whose removal has 

been proposed shall remain in a duty status in his or her regular 

position during the advance notice period. In those rare circumstances 

when the agency determines that the appointee's continued presence in 

the work place during the notice period may pose a threat to the 

appointee or others, result in loss of or damage to Government property, 

or otherwise jeopardize legitimate Government interests, the agency 

shall consider whether any of the following alternatives is feasible:

    (i) Assigning the appointee to duties where he or she is no longer a 

threat to safety, the agency mission, or Government property;

    (ii) Placing the appointee on leave with his or her consent;

    (iii) Carrying the appointee on appropriate leave (annual or sick 

leave, leave without pay, or absence without leave) if he or she is 

voluntarily absent for reasons not originating with the agency; or

    (iv) Curtailing the notice period when the agency can invoke the 

provisions of paragraph (d) of this section (the ``crime provision'').

    (4) If none of the alternatives in paragraph (b)(3) of this section, 

is available,



[[Page 67]]



agencies may consider placing the appointee in a paid, nonduty status 

during all or part of the advance notice period.

    (c) Appointee's answer. (1) The agency shall give the appointee a 

reasonable amount of official time to review the material relied on to 

support its proposed action, to prepare an answer orally and in writing, 

and to secure affidavits, if the appointee is in an active duty status.

    (2) The agency shall designate an official to hear the appointee's 

oral answer who has authority either to make or to recommend a final 

decision on the proposed adverse action.

    (3) The right to answer orally in person does not include the right 

to a formal hearing with examination of witnesses unless the agency 

provides for a formal hearing in its regulations in accordance with 

paragraph (g) of this section.

    (4) If the appointee wishes the agency to consider any medical 

condition that may have affected the basis for the adverse action, the 

appointee shall be given reasonable time to furnish medical 

documentation of the condition. The same procedures that are applicable 

in Sec. 752.404(c)(3) of this chapter are also applicable for an 

appointee in the Senior Executive Service.

    (d) Exception. Section 7543(b)(1) of title 5 of the United States 

Code authorizes an exception to the 30 days' advance written notice when 

the crime provision is invoked. This provision may be invoked even in 

the absence of judicial action if the agency has reasonable cause to 

believe that the appointee has committed a crime for which a sentence of 

imprisonment may be imposed. The agency may require the appointee to 

furnish any answer to the proposed action, and affidavits and other 

documentary evidence to support the answer, within such time as under 

the circumstances would be reasonable, but not less than 7 days. When 

the circumstances require immediate action, the agency may place the 

appointee in a nonduty status with pay for such time as is necessary to 

effect the action.

    (e) Representation. (1) Under 5 U.S.C. 7543(b)(3), an appointee 

covered by this subpart is entitled to be represented by an attorney or 

other representative.

    (2) An agency may disallow as an appointee's representative--

    (i) An individual whose activities as a representative would cause a 

conflict of interest or position;

    (ii) An employee of the agency whose release from his or her 

official position would give rise to unreasonable costs; or

    (iii) An employee of the agency whose priority work assignments 

preclude the employee's release.

    (f) Agency decision. In arriving at its written decision, the agency 

may consider only the reasons specified in the notice of proposed 

action. The agency shall consider any reply of the appointee or the 

appointee's representative made to a designated official and any medical 

documentation furnished under paragraph (c) of this section. The agency 

shall deliver the notice of decision to the appointee at or before the 

time the action will be effective. The notice of decision shall inform 

the appointee of his or her appeal rights.

    (g) Hearing. Under 5 U.S.C. 7543(c), the agency may, in its 

regulations, provide a hearing in place of or in addition to the 

opportunity for written and oral reply.