11 C.F.R. Subpart D—Post Employment Conflict of Interest: Procedures for Administrative Enforcement Proceedings
Title 11 - Federal Elections
The following are procedures to be followed by the Federal Election Commission in investigating and administratively correcting violations of the post employment conflict of interest provisions contained in 18 U.S.C. 207 (a), (b), and (c), which restrict activities of former employees, including former special Commission employees, which might give the appearance of undue benefit based on prior Commission employment and affiliation. Where appropriate for purposes of this subpart, former special Commission employee shall be defined in accordance with 18 U.S.C. 207(c)(1). (a) Filing of complaint. (1) Any person who believes a former employee has violated the post employment conflict of interest provisions of 18 U.S.C. 207 (a), (b), or (c), or 5 CFR part 737 may file a signed complaint with the Ethics Officer. (2) The Ethics Officer, within five days after receipt of the complaint, shall send a copy of the complaint by certified mail to the former employee named in the complaint. The former employee may, within ten days after receipt of the complaint, submit any written legal or factual materials he or she believes demonstrate that the complaint should be dismissed on its face. (b) Review of complaint. (1) The Ethics Officer will review the complaint and any materials submitted by the former employee, and will prepare a report to the Commission recommending whether the complaint should be investigated or should be dismissed on its face. (2) If the Commission, by an affirmative vote of four members, finds that the complaint appears to be substantiated, it may order an investigation of the allegations made in the complaint. (i) Except as may be required to coordinate with the Department of Justice under 11 CFR 7.23(b)(2)(iii) any investigation conducted under this section shall be kept confidential until such time as the Commission has determined whether there is reasonable cause to believe a violation has occurred. (ii) The Ethics Officer shall notify the Director of the Office of Government Ethics and the Criminal Division of the Department of Justice of the Commission's finding that the complaint has merit. The notification shall contain a copy of the complaint, any materials submitted by the former employee, the Ethics Officer's report, and the certification of the Commission's action. (iii) The Commission will coordinate any investigation or administrative action with the Department of Justice to avoid prejudicing criminal proceedings, unless the Department of Justice notifies the Commission that it does not intend to initiate criminal proceedings. (3) If the Commission finds the complaint to be unfounded, no investigation will be conducted and both the complainant and the former employee will be notified by the Ethics Officer of the Commission's finding. (a) Ethics Officer's responsibility. Upon a finding under 11 CFR 7.23(b)(2) that a complaint appears to be substantiated, the Ethics Officer shall conduct an investigation into the allegations of the complaint. (b) Opportunity to respond. The former employee will be sent a copy of the Ethics Officer's report and will be given an opportunity to respond in writing and under oath to the allegations made in the complaint and the findings made in the report. The former empoloyee may provide any written legal or factual materials he or she believes demonstrate that no violation has occurred. Such response must be received by the Commission within 20 days after the former employee's receipt of the Ethics Officer's report, unless an extension is authorized in writing by the Ethics Officer. (c) Representation by counsel. The former employee may be represented by counsel during the investigation. Such counsel shall notify the Ethics Officer in writing that he or she is representing the former employee. Thereafter, all communications between the Commission staff and the former employee relating to the investigation shall be made to the former employee's counsel. (d) Report to the Commission. Upon completion of the investigation, the Ethics Officer shall prepare a report to the Commission, including any materials provided by the former employee. The report shall recommend whether there is reasonable cause to believe the respondent has violated 18 U.S.C. 207 (a), (b), or (c). (a) Commission review of report. The Commission shall review the Ethics Officer's investigative report in Executive Session. (b) Reasonable cause to believe finding. If the Commission, by an affirmative vote of four members, determines there is reasonable cause to believe a violation has occurred, it shall initiate an administrative disciplinary proceeding by providing the former employee with the notice defined in 11 CFR 7.26. (c) No reasonable cause to believe finding. If the Commission determines that there is no reasonable cause to believe a violation has occurred, it will close its file on the matter and take no further action. The Commission shall notify the Director of the Office of Government Ethics, the Criminal Division of the Department of Justice, the complainant, and the former employee of its determination. Included in this notification will be a statement of reasons for the Commission's determination. (a) Notice requirement. After a reasonable cause to believe finding the Ethics Officer shall provide the former Commission employee with adequate notice of an intention to institute a disciplinary proceeding and an opportunity to request a hearing. (b) Contents. The notice required under this section shall contain: (1) A statement of the allegations (and the basis thereof); (2) Notification of the right to request a hearing; (3) An explanation of the method by which a hearing may be requested as set forth at 11 CFR 7.26(c); and (4) A copy of the post-employment regulations. (c) Request for hearing. (1) A former employee who has received a notice under this section must notify the Commission with ten days after receipt of such notice by certified mail of his or her desire for a hearing. The request for a hearing should include the following information: (i) The former employee's daytime telephone number; (ii) The name, address, and telephone number of the former employee's counsel, if he or she intends to be represented by counsel; and (iii) At least three dates and times at which the former employee will be available for a hearing. (2) If a written request from the former employee is not received by the Ethics Officer within the stated time period, the right to a hearing shall be waived and the examiner (See 11 CFR 7.27) shall consider the evidence and make a decision. (a) Designation. If the Commission decides by an affirmative vote of four of its members to hold a hearing, the Ethics Officer shall designate an individual to serve as examiner at the administrative disciplinary hearing. In the absence of a hearing, the Ethics Officer shall designate an examiner to consider the written evidence and make a decision. (See 11 CFR 7.26(b)(2)). The individual designated as examiner shall have the qualifications set forth in paragraph (b) of this section. (b) Qualifications. (1) An examiner shall be impartial. No individual who has participated in any manner in the decision to initiate the proceeding may serve as an examiner in those proceedings. Therefore, the following persons may not be designated as an examiner: (i) A Commissioner, (ii) The Ethics Officer, or (iii) Any Commission employee who has participated in the preliminary investigation of the complaint. (2) The examiner shall be an attorney at the Assistant General Counsel level or higher. (a) Setting of date by examiner. The examiner shall set the hearing at a reasonable time, date, and place. (b) Considerations. Whenever practicable, the examiner shall choose a time and date from the list submitted by the former employee in the request for a hearing. In setting a hearing date, the examiner shall give due regard to the former employee's need for: (1) Adequate time to prepare a defense properly, and (2) An expeditious resolution of allegations that may be damaging to his or her reputation. A hearing conducted under these procedures shall afford the former employee the following rights: (a) To represent oneself or to be represented by counsel, (b) To introduce and examine witnesses and to submit physical evidence, (c) To confront and cross-examine adverse witnesses, (d) To present oral argument, and (e) To request a transcript of the recording of proceedings. The requester will be charged according to the fee schedule set out at 11 CFR 5.6. (a) Witness lists. (1) No later than 10 days prior to the hearing date, the Ethics Officer will provide the former employee with a list of the witnesses the Commission intends to introduce. The list shall include the name and position of each witness and the aspect of the allegation upon which the witness is expected to testify. If no witnesses are to be called, the former employee shall be so notified. (2) No later than 5 days prior to the hearing date, the former employee shall provide the Ethics Officer with a list of witnesses he or she intends to introduce. The list shall include the name and position of each witness and the aspect of the allegation upon which the witness is expected to testify. If no witnesses are to be called, the Ethics Officer shall be so notified. (3) Copies of the witness lists shall be given to the examiner by the Ethics Officer. (b) Representation. (1) The Commission shall be represented at the hearing by the Ethics Officer or his or her designee, (2) The former employee may represent himself or herself or may be represented by counsel. (c) Burden of proof. The burden of proof shall be on the Commission which must establish substantial evidence of a violation. (d) Conduct of hearing. (1) The following items will be introduced by the Commission and will be made part of the hearing record: (i) The complaint; (ii) The notification sent to the former employee under 11 CFR 7.27; (iii) The former employee's response to the notification; and (iv) If the Commission so chooses, a brief or memorandum of law. (2) The former employee will then be given an opportunity to submit a brief or memorandum of law to be included in the hearing record. (3) The Commission shall introduce its witnesses and evidence first. At the close of the Commission's examination of each witness, the former employee will be given an opportunity to cross-examine the witness. (4) The former employee will present his or her witnesses and evidence at the close of the Commission's presentation. At the close of the former employee's examination of each witness, the Commission shall be given an opportunity to cross-examine each witness. (5) After the former employee has completed his or her presentation, both parties will be given an opportunity for oral argument with the Commission making its arguments first. Time shall be offered during the oral argument for Commission rebuttal. (6) Decisions as to the admissibility of evidence or testimony shall be made under the Federal Rules of Evidence. (a) Initial determination. No later than 15 days after the close of the hearing, the examiner shall make a determination exclusively on matters of record in the proceeding. (b) Form of determination. The examiner's determination shall set forth all findings of fact and conclusions of law relevant to the matters at issue. (c) Copies. The examiner shall provide copies of his or her determination to the former employee, the complainant, the Ethics Officer, and the Commission. (a) Right of appeal. Within ten days after receipt by certified mail of the examiner's decision, either party may appeal such decision to the members of the Commission by filing a notice of appeal with the Chairman. (b) Notice of appeal. The notice of appeal shall be accompanied by a memorandum setting forth the legal and factual reasons why the examiner's decision should be reversed or modified. (c) Commission review of appeal. The Commission, by an affirmative vote of four members, may affirm, modify, or reverse the examiner's decision. The Commission's decision shall be based solely on the hearing record or those portions thereof cited by the parties to limit the issues. (d) Commission statement on appeal. If the Commission modifies or reverses the initial decision, it shall specify such findings of fact or conclusions of law as are different from those of the examiner. The Commission may take appropriate disciplinary action in the case of any individual who is found in violation of 18 U.S.C. 207 (a), (b), or (c) after a final administrative hearing, or in the absence of a hearing, after adequate notice such as by: (a) Prohibiting the individual from making, on behalf of any person (except the United States), any formal or informal appearance before, or, with the intent to influence, any oral or written communication to the Commission on any matter of business for a period not to exceed five years, which may be accomplished by directing agency employees to refuse to participate in any such appearance or to accept any such communication; (b) Issuing a letter of reprimand; (c) Issuing a letter of admonishment; (d) Prohibiting a former employee from making formal or informal appearances or communications in connection with a particular matter or on behalf of a particular party. (e) Taking other appropriate disciplinary action.
Title 11: Federal Elections
PART 7—STANDARDS OF CONDUCT
Subpart D—Post Employment Conflict of Interest: Procedures for Administrative Enforcement Proceedings
§ 7.22 Scope.
§ 7.23 Initiation of investigation.
§ 7.24 Conduct of preliminary investigation.
§ 7.25 Initiation of administrative disciplinary proceeding.
§ 7.26 Notice to former employee.
§ 7.27 Hearing examiner designation and qualifications.
§ 7.28 Hearing date.
§ 7.29 Hearing rights of former employee.
§ 7.30 Hearing procedures.
§ 7.31 Examiner's decision.
§ 7.32 Appeal.
§ 7.33 Administrative sanctions.
