« ÎnapoiContinuați »
be no ex parte communications concerning the grievance between the agency head, or designee, and any person involved in the grievance proceeding.
$ 16.14 Reconsideration of a grievance.
A grievant whose grievance is found not to be meritorious by the Board may obtain reconsideration by the Board only upon presenting newly discovered or previously unavailable material evidence not previously considered by the Board and then only upon approval of the Board.
8 16.15 Judicial review,
Any aggrieved party may obtain judicial review of these regulations, and revisions thereto, and final actions of the agency head (or designee) or the Grievance Board hereunder, in the District Courts of the United States, in accordance with the standards set forth in chapter 7 of title 5 of the United States Code. Section 706 of title 5 shall apply without limitation or exception.
consequence of the matter by which the employee is aggrieved;
(6) To order that an employee be provided with facilities relating to the physical working environment which the employee has been denied arbitrarily, capriciously or in violation of applicable regulation.
(c) Such orders of the Board shall be final, subject to judicial review as provided for in section 694 of the Act, except that reinstatement of former officers who have filed grievances under $ 16.1(c)(7) shall be presented as Board recommendations, the decision on which shall be subject to the sole discretion of the agency head or designee, who shall take into account the needs of the Service in deciding on such recommendations, and shall not be subjected to judicial review under section 694 of the Act. The reason(s) for the agency head's (or designee's) decision will be conveyed in writing to the Board and the grievant.
(d) If the Board finds that the grievance is meritorious and that remedial action should be taken that directly relates to promotion or assignment of the grievant, or to other remedial action, including additional step increases, not provided for in paragraph (b) of this section, or if the Board finds that the evidence before it warrants disciplinary action against any officer or employee, it shall make an appropriate recommendation to the head of the agency, and forward to the head of the agency the record of the Board's proceedings, including the transcript of the hearing, if any. The head of the agency (or designee, who shall not have direct responsibility for administrative management) shall make a written decision to the parties and to the Board on the Board's recommendation within 30 days from receipt of the recommendation. A recommendation of the Board may be rejected in part or in whole if the action recommended would be contrary to law, would adversely affect the foreign policy or security of the United States, or would substantially impair the efficiency of the Service. If the decision rejects the Board's recommendation in part or in whole, the decision shall state specifically any and all reasons for such action. Pending the decision, there shall
PART 17-OVERPAYMENTS TO AN
NUITANTS UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM
Sec. 17.1 Definitions. 17.2 General provisions. 17.3 Notice to annuitants. 17.4 Initial determination. 17.5 Standards. 17.6 Notice of decision and right of appeal. 17.7 Appeal.
AUTHORITY: 22 U.S.C. 842; 22 U.S.C. 1061; 22 U.S.C. 2658; and E.O. 10897 (25 FR 12439).
SOURCE: 44 FR 47928, Aug. 16, 1979, unless otherwise noted.
$ 17.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Annuitant has the meaning set forth in section 804(1) of the Act (22 U.S.C. 1064(1)).
(c) Foreign Service Grievance Board means the Board established by 22 CFR 16.10 under sections 691 and 692 of the Act (22 U.S.C. 1037-1037c).
(d) Overpayments has the same meaning as in $ 822(d) of the Act (22 U.S.C. 1076a(d)).
(e) Secretary means the Secretary of viser and Office of Employee Relations, State.
Bureau of Personnel, shall prepare a
preliminary finding. This preliminary 817.2 General provisions.
finding shall contain a positive or negSection 822(d) of the Act (22 U.S.C. ative determination on all material 1076(d)) provides recovery of overpay- issues raised by the contest or request ments by the Department of State of for waiver. In the latter case, there benefits to annuitants may not be shall be a determination of the applicamade when, in the judgment of the Sec- bility or non-applicability of each of retary, the individual recipient is with- the standards set forth in $17.5. out fault and recovery would be (c) The Director shall make the final against equity and good conscience or administrative determination. administratively infeasible. This part (d) At any time before the final adestablishes procedures for notification ministrative decision, the Director to annuitants of their rights, for ad- may request the annuitant to suppleministrative determination of those ment his or her submission with addirights and for appeals of negative de- tional factual information and may reterminations. This part also estab- quest that the annuitant authorize the lishes procedures by which an annu- Department of State to have access to itant can contest a determination that bank and other financial records bearthe annuitant has been overpaid.
ing on the application of these regula
tions. $17.3 Notice to annuitants. The Office of Finance, Department of
$ 17.5 Standards. State, shall give written notification (a) General. (1) Waiver of overpayto any person who has received an ment will not be allowed in any case overpayment, the cause of the overpay- prior to receipt and evaluation of a ment, the intention of the Department statement of financial responsibility, to seek repayment of the overpayment, duly sworn by the recipient of the overand the basis for that action, the right payment, except in those cases where of the annuitant to contest the alleged the facts make it obvious that the indioverpayment or to request a waiver of vidual has no capacity to repay. Such recovery, and the procedure to follow statement will be waived in the latter in case of such contest or appeal. The case. notification shall allow at least 30 days (2) Waiver of overpayment will not be from its date within which the annu- allowed when overpayment has been itant may file a written response, made to an estate. which may include evidence, argument, (b) Fault. (1) Determinations of or both.
"fault” or the absence thereof, will be
made according to the commonly un8 17.4 Initial determination.
derstood and standard concepts of eq(a) The Director of the Office of Fi- uity applicable thereto. nance will be responsible for preparing (2) A prerequisite to waiver of overan administrative file as a basis for de- payment shall be clear and convincing termination in each case where an an- showing that the person from whom renuitant contests a claim to recover covery would otherwise be made did overpayment or requests waiver of re- not cause, or was not otherwise responcovery. This file shall include: all cor- sible for the overpayment, i.e., he or respondence with the annuitant; docu- she performed no act of commission or mentation on the computation of the omission that resulted in the overpayannuity or annuities in question; and ment. Pertinent consideration to be any information available to the De- made in this area are: partment which bears on the applica- (i) Whether payment resulted from tion of the standards of waiver of re- the individual's incorrect (not neccovery to the particular case.
essarily fraudulent) statement. (b) On the basis of the administrative (ii) Whether he or she knew the payfile, the Director, after consultation ment was erroneous and, if so, whether with and review of the preliminary his or her subsequent failure to act refindings by the Office of the Legal Ad- sulted from desire or ignorance.
part in accordance with the regulations of the Board set forth in 22 CFR part 16. The Director of the Office of Finance, with such assistance as may be necessary, shall represent the Department in proceedings before the Board. The decision of the Board is final.
PART 18-REGULATIONS CONCERNING POST
POST EMPLOYMENT CONFLICT OF INTEREST
Subpart A-General Provisions
Sec. 18.1 Scope 18.2 Definitions. 18.3 Director General. 18.4 Records.
Subpart B-Applicable Rules 18.5 Interpretative standards; advisory
Subpart C-Administrative Enforcement
(iii) Whether he or she failed to disclose material facts in his or her possession.
(iv) Whether he or she could have determined that the payment was erroneous.
(c) Equity and good conscience. (1) “Equity and good conscience" as defined in equity and the commonly understood meaning thereof shall be attached to waiver determinations. In addition, the decision must be made whether the exercise of waiver of overpayment would be in opposition to the basic purpose of title VII of the Foreign Service Act (22 U.S.C. 1061, et seq.) and would injure the administration of such title.
(2) The following guides will also be applied, as appropriate:
(i) Waiver of overpayment may be granted when an individual by reason of receipt of the overpayment has: (a) Relinquished a valuable right; or (b) changed his or her position for the worse.
(ii) Waiver of overpayment may be granted when the individual has consistently acted in good faith regarding the overpayment.
(iii) Waiver of overpayment cannot be granted when the individual has been found to be at fault or if the overpayment has been obtained by fraud. $17.6 Notice of decision and right of
appeal. If the annuitant, without good cause shown, fails or refuses to produce the requested additional information or authorization, the Department of State is entitled to made adverse inferences with respect to the matters sought to be amplified, clarified, or verified.
(a) The final administrative decision shall be reduced to writing and the Director shall send it expeditiously to the annuitant.
(b) If the decision is adverse to the annuitant, the notification of the decision shall include a written description of the annuitant's rights of appeal to the Foreign Service Grievance Board, including time to file, where to file, and applicable procedure. $17.7 Appeal.
The Foreign Service Grievance Board shall entertain any appeal under this
18.6 Authority to prohibit appearances. 18.7 Report of violation by a former em
ployee. 18.8 Institution of proceeding. 18.9 Contents of complaint. 18.10 Service of complaint and other papers. 18.11 Answer. 18.12 Motions and requests. 18.13 Representation. 18.14 Hearing examiner. 18.15 Hearings. 18.16 Evidence. 18.17 Depositions. 18.18 Proposed findings and conclusions. 18.19 Decision of the hearing examiner. 18.20 Appeal to the Board of Appellate Re
view. 18.21 Decision of the Board of Appellate Re
view. 18.22 Notice of disciplinary action.
AUTHORITY: 18 U.S.C. 207, as amended, 92 Stat. 1864.
SOURCE: 46 FR 2608, Jan. 12, 1981, unless otherwise noted.
Subpart A-General Provisions
$ 18.1 Scope.
This part contains rules governing disciplinary action against a former officer or employee of the Department of State, including the Foreign Service,
because of a violation of the post em- would be in conformity with the Act or ployment conflict of interest prohibi- the interpretive regulations thereunder tions. Such disciplinary action may in- may contact the Assistant Legal Adclude prohibition from practice before viser for Management to request an adthe Department of State and any com- visory opinion. ponent thereof as defined in this part.
Subpart C-Administrative $ 18.2 Definitions.
Enforcement Proceedings For the purpose of this part
(a) The term Department means the $18.6 Authority to prohibit appear. Department of State and includes the Foreign Service.
Pursuant to 18 U.S.C 207(3), if the Di(b) The term Director General means
rector General finds, after notice and the Director General of the Foreign opportunity for a hearing, that a Service and Director of Personnel.
former officer or employee of the De(c) The term practice means any in- partment has violated 18 U.S.C. 207(a), formal or formal appearance before, or, (b) or (c), the Director General in his/ with the intent to influence, any oral her discretion may prohibit that peror written communication to the De
son from engaging in practice before partment on a pending matter of busi
the Department for a period not to exness on behalf of any other person (ex
ceed five years, or may take other apcept the United States).
propriate disciplinary action. $18.3 Director General.
$ 18.7 Report of violation by a former The Director General shall institute employee. and provide for the conduct of discipli- (a) If an officer or employee of the nary proceedings involving former em- Department has reason to believe that ployees of the Department as author- a former officer or employee of the Deized by 18 U.S.C. 207(j), and perform partment has violated any provision of such other duties as are necessary or this part, or if any such officer or emappropriate to carry out his/her func- ployee receives information to that eftions under this part.
fect, he/she shall promptly make a
written report thereof, which report or $18.4 Records.
a copy thereof shall be forwarded to The roster of all persons prohibited the Director General. If any other perfrom practice before the Department son has information of such violations, shall be available to public inspection he/she may make a report thereof to at the Office of Director General. Other the Director General or to any officer records may be disclosed upon specific or employee of the Department. request, in accordance with appro- (b) The Director General shall coordipriate disclosure regulations of the De- nate proceedings under this part with partment.
the Department of Justice in cases
where it initiates criminal prosecution. Subpart B-Applicable Rules
$ 18.8 Institution of proceeding. $ 18.5 Interpretative standards; advi. Whenever the Director General detersory opinions.
mines that there is sufficient reason to (a) A determination that a former of- believe that any former officer or emficer or employee of the Department ployee of the Department has violated violated 18 U.S.C. 207(a), (b) or (c) will 18 U.S.C. 207(a), (b) or (c), he/she may be made in conformance with the institute an administrative disciplistandards established in the interpreta- nary proceeding. The proceeding may tive regulations promulgated, either in be for that person's suspension from interim or final form by the Office of practice before the Department or for Government Ethics and published at 5 some lesser penalty. The proceeding CFR part 737.
shall be instituted by a complaint (b) Former officers and employees of which names the respondent and is the Department wanting to know signed by the Director General and whether a proposed course of conduct filed in his/her office. Except in cases
Director General, Department of State, Washington, DC 20520. All papers shall be filed in duplicate.
of willfulness, or where time, the nature of the proceeding, or the public interest does not permit, a proceeding will not be instituted under this section until facts or conduct which may warrant such action have been called to the attention of the proposed respondent in writing and he/she has been accorded the opportunity to provide his/her position on the matter. $18.9 Contents of complaint.
A complaint shall plainly and concisely describe the allegations which constitute the basis for the proceeding. A complaint shall be deemed sufficient if it fairly informs the respondent of the charges against him
her so that the respondent is able to prepare a defense. Written notification shall be given of the place and of the time within which the respondent shall file his/her answer, which time shall not be less than 15 days from the date of service of the complaint. Notice shall be given that a decision by default may be rendered against the respondent in the event he/ she fails to file an answer.
$ 18.11 Answer.
(a) Filing. The respondent's answer shall be filed in writing within the time specified in the complaint or notice of institution of the proceeding, unless on application the time is extended by the Director General. The answer shall be filed in duplicate with the Director General.
(b) Contents. The answer shall contain a statement of facts which constitute the grounds of defense, and it shall specifically admit or deny each allegation set forth in the complaint. The respondent may also state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every allegation in the complaint which is not denied in the answer shall be deemed to be admitted and may be considered proved. Failure to file an answer within the time prescribed in the notice to the respondent, except as the time for answer is extended by the Director General shall constitute a waiver of hearing, and the Director General may make his/her decision by default without a hearing or further procedure. 8 18.12 Motions and requests.
Motions and requests, including requests to intervene, may be filed with the Director General.
8 18.10 Service of complaint and other
papers. (a) Complaint. The complaint or a copy thereof may be served upon the respondent by certified mail; by delivering it to the respondent or his/her attorney or agent of record either in person; or by leaving it at the office or place of business of the respondent, attorney or agent; in any other manner which has been agreed to by the respondent; or by first-class mail in case of a person resident abroad.
(b) Service of papers other than complaint. Any paper other than the complaint may be served upon a respondent as provided in paragraph (a) of this section or by mailing the paper by firstclass mail to the respondent at the last address known to the Director General, or by mailing the paper by first-class mail to the respondent's attorney or agent of record. Such mailing shall constitute complete service.
(c) Whenever the filing of a paper is required or permitted in connection with a proceeding, and the place of filing is not specified by this subpart or by rule or order of the hearing examiner, the paper shall be filed with the
8 18.13 Representation.
A respondent or proposed respondent may appear in person or he/she may be represented by counsel or other representative. The Director General may be represented by an attorney or other employee of the Department.
$ 18.14 Hearing examiner.
(a) After an answer is filed, if the Director General decides to continue the administrative disciplinary proceedings, he/she shall appoint a hearing examiner to conduct those proceedings under this part.
(b) Authorities. Among other powers, the hearing examiner shall have authority, in connection with any proceeding assigned or referred to him her, to do the following: