[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1304.4608]

[Page 120-121]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
              CHAPTER III--OFFICE OF MANAGEMENT AND BUDGET
 
PART 1304_POST EMPLOYMENT CONFLICT OF INTEREST--Table of Contents
 
Sec.  1304.4608  Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 737.27).

    (a) Whenever an allegation is made that a former Government employee 
has violated 18 U.S.C. 207(a), (b) or (c) or any of the regulations 
promulgated thereunder by the Office of Government Ethics or by OMB, the 
allegation and any supporting evidence shall be transmitted through the 
Office of General Counsel to the Deputy Director, OMB.
    (b) Allegations and evidence shall be safeguarded so as to protect 
the privacy of former employees prior to a determination of sufficient 
cause to initiate an administrative disciplinary proceeding.
    (c) If review by the Office of General Counsel, OMB, shows that the 
information concerning a possible violation does not appear to be 
frivolous, the Deputy Director, OMB, shall expeditiously provide all 
relevant evidence, any appropriate comments, and copies of applicable 
agency regulations to the director, Office of Government Ethics, and to 
the Criminal Division, Department of Justice. Unless the Department of 
Justice informs OMB that it does not intend to initiate criminal 
prosecution, OMB shall coordinate any investigation or administrative 
action with the Department of Justice in order to avoid prejudicing 
criminal proceedings.
    (d) After appropriate review and recommendation by the Office of 
General Counsel, if the Deputy Director, OMB, determines that there is 
reasonable cause to believe that there has been a violation, the Deputy 
Director may direct the Office of General Counsel to initiate an 
administrative disciplinary proceeding and may designate an individual 
to represent OMB in the proceeding.
    (e) Notice. The Office of General Counsel shall provide the former 
Government employee with adequate notice of its intention to institute a 
proceeding and with an opportunity for a hearing. The notice must 
include a statement of allegations, and the basis thereof, in sufficient 
detail to enable the former Government employee to prepare an adequate 
defense; notification of the right to a hearing; and an explanation of 
the method by which a hearing may be requested.
    (f) Hearing. A hearing may be obtained by submitting a written 
request to the Office of General Counsel.
    (g) Examiner. The presiding official at the proceedings shall be the 
hearing examiner, who is delegated authority by the Director, OMB, to 
make an initial decision. The hearing examiner shall be an attorney in 
the Office of General Counsel designated by the General Counsel. The 
hearing examiner shall be impartial and shall not have participated in 
any manner in the decision to initiate the proceedings.
    (h) Time, Date and Place. The hearing shall be conducted at a 
reasonable time, date, and place. The hearing examiner shall give due 
regard in setting the hearing date to the former Government employee's 
need for adequate time to properly prepare a defense and

[[Page 121]]

for an expeditious resolution of allegations that may be damaging to his 
reputation.
    (i) Hearing Rights. The hearing shall include, as a minimum, the 
right to represent oneself or to be represented by counsel; the right to 
introduce and examine witnesses and to submit physical evidence; the 
right to confront and cross-examine adverse witnesses; the right to 
present oral argument; and, on request, the right to have a transcript 
or recording of the proceedings.
    (j) Burden of Proof. OMB has the burden of proof and must establish 
substantial evidence of a violation.
    (k) Decision. The hearing examiner shall make a decision based 
exclusively on matters of record in the proceedings. All findings of 
fact and conclusions of law relevant to the matters at issue shall be 
set forth in the decision.
    (l) Appeal within OMB. Within 30 days of the date of the hearing 
examiner's decision, either party may appeal the decision to the 
Director. The Director shall make a decision on the appeal based solely 
on the record of the proceedings or on those portions of the record 
agreed to by the parties to limit the issues. If the Director modifies 
or reverses the hearing examiner's decision, he shall specify the 
findings of fact and conclusions of law that are different from those of 
the hearing examiner.
    (m) Administrative Sanctions. Administrative sanctions may be taken 
if the former Government employee fails to request a hearing after 
receipt of adequate notice or if a final administrative determination of 
a violation of 18 U.S.C. 207 (a), (b) or (c) or regulations promulgated 
thereunder has been made. The Director may prohibit the former 
Government employee from appearance or communication with OMB on behalf 
of another for a period not to exceed five years (5 CFR 737.27(a)(9)(i)) 
or take other appropriate disciplinary action (5 CFR 737.27(a)(9)(ii)).
    (n) Judicial Review. Any person found by an OMB administrative 
decision to have participated in a violation of 18 U.S.C. 207 (a), (b) 
or (c) or regulations promulgated thereunder may seek judicial review of 
the administrative decision.