[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 45CFR73b.4]



[Page 205-206]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 73b_DEBARMENT OR SUSPENSION OF FORMER EMPLOYEES--Table of Contents

 

Sec.  73b.4  Proceedings.



    (a) Upon a determination by the Assistant General Counsel, Business 

and Administrative Law Division, or his/her designee, after 

investigation by the Inspector General, that there is reasonable cause 

to believe that a former officer or employee, including a former special 

Government employee, of the Department of Health and Human Services 

(former departmental employee) has violated 18 US.C. 207 (a), (b) or 

(c), the Assistant General Counsel, or his/her designee, 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 departmental employee to show 

cause within a specified time of not less than 30 days after receipt of 

the notice why he/she should not be prohibited from engaging in 

representational activities in relation to matters pending in the 

Department, as authorized by 18 U.S.C. 207(j), or subjected to other 

appropriate debarment or disqualification action under that statute. The 

notice to show cause shall include:

    (1) A statement of allegations, and their bases, sufficiently 

detailed to enable the former departmental employee to prepare an 

adequate defense;

    (2) Notification of the right to a hearing, and that failure to 

answer shall constitute a waiver of defense; and

    (3) An explanation of the method by which a hearing may be 

requested.

    (b) If a former departmental employee who submits an answer to the 

notice to show cause does not request a hearing or if the Assistant 

General Counsel does not receive an answer within the time prescribed by 

the notice, the Assistant General Counsel shall forward the record, 

including the report(s) of investigation, to the Assistant Secretary for 

Personnel Administration (Assistant Secretary). In the case of a failure 

to answer, such failure shall constitute a waiver of defense.

    (c) Upon receipt of a former departmental employee's request for a 

hearing, the Assistant General Counsel shall notify him/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. He/she shall insure that 

the former departmental employee has the following rights:

    (1) To self-representation or representation by counsel,

    (2) To introduce and examine witnesses and submit physical evidence,

    (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.



[[Page 206]]



    (e) The Assistant General Counsel shall designate one or more 

officers or employees of the Department to present the evidence against 

the former departmental employee and perform other functions incident to 

the proceedings.

    (f) A decision adverse to the former departmental employee must be 

sustained by substantial evidence that he/she violated 18 U.S.C. 207 

(a), (b) or (c). If a judgment of conviction has been entered by a 

Federal district court against the former departmental employee for 

violation of 18 U.S.C. 207 (a), (b) or (c), regardless of whether the 

judgment is based upon a verdict or a plea of guilty, such judgment of 

conviction shall be conclusive evidence of a violation of 18 U.S.C. 207 

(a), (b) or (c), unless and until the judgment is vacated or reversed on 

appeal.

    (g) The administrative law judge 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 in writing to the Assistant Secretary 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 initial decision, the Assistant 

Secretary shall specify the findings of fact and conclusions of law that 

vary from those of the presiding officer.

    (i) If a former departmental employee fails to appeal from an 

adverse initial decision within the prescribed period of time, the 

administrative law judge shall forward the record of the proceedings to 

the Assistant Secretary.

    (j) In the case of a former departmental employee who filed an 

answer to the notice to show cause but did not request a hearing, the 

Assistant Secretary shall make the final decision on the record 

submitted to him by the Assistant General Counsel pursuant to paragraph 

(b) of this section.

    (k) In a case where:

    (1) The defense has been waived,

    (2) The former departmental employee has failed to appeal from an 

adverse initial decision, or

    (3) The Assistant Secretary has issued a final decision that the 

former departmental employee violated 18 U.S.C. 207 (a), (b) or (c),



The Assistant Secretary may issue an order:

    (i) Prohibiting the former departmental employee from making, on 

behalf of any other person (except the United States), any informal or 

formal appearance before, or, with the intent to influence, any oral or 

written communication to, the Department on a pending matter of business 

for a period not to exceed five years, or

    (ii) Prescribing other appropriate debarment or disqualification 

action, such as limiting the action to a particular organization or 

organizations within the Department.

    (l) An order issued under either paragraph (k)(i) or (k)(ii) of this 

section shall be supplemented by a directive to officers and employees 

of the Department not to engage in conduct in relation to the former 

departmental employee that would contravene such order.