5
Administrative Personnel
2
2020-01-01
2020-01-01
false

Regulatory Requirements for Taking Adverse Action Under the Senior Executive Service
F

Subpart F
Administrative Personnel
OFFICE OF PERSONNEL MANAGEMENT (CONTINUED)
CIVIL SERVICE REGULATIONS (CONTINUED)
ADVERSE ACTIONS

Subpart F—Regulatory Requirements for Taking Adverse Action Under the Senior Executive Service
§ 752.601
Coverage.
(a) Adverse actions covered. This subpart applies to suspensions for more than 14 days and removals from the civil service as set forth in 5 U.S.C. 7542.
(b) Actions excluded. (1) An agency may not take a suspension action of 14 days or less.
(2) This subpart does not apply to actions taken under 5 U.S.C. 1215, 3592, 3595, or 7532.
(c) Employees covered. This subpart covers the following appointees:
(1) A career appointee—
(i) Who has completed the probationary period in the Senior Executive Service;
(ii) Who is not required to serve a probationary period in the Senior Executive Service; or
(iii) Who was covered under 5 U.S.C. 7511 immediately before appointment to the Senior Executive Service.
(2) A limited term or limited emergency appointee—
(i) Who received the limited appointment without a break in service in the same agency as the one in which the employee held a career or career-conditional appointment (or an appointment of equivalent tenure as determined by the Office of Personnel Management) in a permanent civil service position outside the Senior Executive Service; and
(ii) Who was covered under 5 U.S.C. 7511 immediately before appointment to the Senior Executive Service.
(d) Employees excluded. This subpart does not cover an appointee who is serving as a reemployed annuitant.
§ 752.602
Definitions.
In this subpart—
Career appointee, limited term appointee, and limited emergency appointee have the meaning given in 5 U.S.C. 3132(a).
Day means calendar day.
Suspension has the meaning given in 5 U.S.C. 7501(2).
§ 752.603
Standard for action.
(a) An agency may take an adverse action under this subpart only for reasons of misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.
(b) An agency may not take an adverse action under this subpart on the basis of any reason prohibited by 5 U.S.C. 2302.
§ 752.604
Procedures.
(a) Statutory entitlements. An appointee against whom action is proposed under this subpart is entitled to the procedures provided in 5 U.S.C. 7543(b).
(b) Notice of proposed action. (1) An appointee against whom an action is proposed is entitled to at least 30 days' advance written notice unless there is an exception pursuant to paragraph (d) of this section. The notice must state the specific reason(s) for the proposed action, and 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) Under ordinary circumstances, an appointee whose removal has been proposed will remain in a duty status in his or her regular position during the advance notice period. In those rare circumstances where 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 may elect one or a combination of the following alternatives:
(i) Assigning the appointee to duties where he or she is no longer a threat to safety, the agency mission, or Government property;
(ii) Allowing the appointee to take leave, or carrying him or her in an appropriate leave status (annual, sick, leave without pay, or absence without leave) if the appointee has absented himself or herself from the worksite without requesting leave;
(iii) Curtailing the notice period when the agency can invoke the provisions of paragraph (d) of this section; or
(iv) Placing the appointee in a paid, nonduty status for such time as is necessary to effect the action.
(c) Appointee's answer. (1) The appointee may answer orally and in writing except as provided in paragraph (c)(2) of this section. The agency must 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. The agency may require the appointee to furnish any answer to the proposed action, and affidavits and other documentary evidence in support of the answer, within such time as would be reasonable, but not less than 7 days.
(2) The agency will 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. 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 such hearing in its regulations. 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 answer.
(3) If the appointee wishes the agency to consider any medical condition that may have affected the basis for the adverse action, the appointee must be given reasonable time to furnish medical documentation (as defined in § 339.104 of this chapter) of the condition. Whenever possible, the appointee will supply such documentation within the time limits allowed for an answer.
(d) Exception. Section 7543(b)(1) of title 5, U.S. Code, authorizes an exception to the 30 days' advance written notice when the agency has reasonable cause to believe that the appointee has committed a crime for which a sentence of imprisonment may be imposed and is proposing a removal or suspension. This notice exception is commonly referred to as the “crime provision.” This provision may be invoked even in the absence of judicial action.
(e) Representation. Section 7543(b)(3) of title 5, U.S. Code, provides that an appointee covered by this part is entitled to be represented by an attorney or other representative. An agency may disallow as an appointee's representative an individual whose activities as representative would cause a conflict of interest or position, or an employee of the agency whose release from his or her official position would give rise to unreasonable costs or whose priority work assignments preclude his or her release.
(f) Agency review of medical information. When medical information is supplied by the appointee pursuant to paragraph (c)(3) of this section, the agency may, if authorized, require a medical examination under the criteria of § 339.301 of this chapter, or otherwise, at its option, offer a medical examination in accordance with the criteria of § 339.302 of this chapter. If the appointee has the requisite years of service under the Civil Service Retirement System or the Federal Employees' Retirement System, the agency must provide information concerning disability retirement. The agency must be aware of the affirmative obligations of the provisions of 29 CFR 1614.203, which require reasonable accommodation of a qualified individual with a disability.
(g) Agency decision. (1) In arriving at its decision, the agency will consider only the reasons specified in the notice of proposed action and any answer of the appointee or the appointee's representative, or both, made to a designated official and any medical documentation reviewed under paragraph (f) of this section.
(2) The notice must specify in writing the reasons for the decision and advise the appointee of any appeal rights under § 752.605 of this part. The agency must deliver the notice of decision to the appointee on or before the effective date of the action.
(h) Applications for disability retirement. Section 831.1204(e) of this chapter provides that an appointee's application for disability retirement need not delay any other appropriate personnel action. Section 831.1205 and § 844.202 of this chapter set forth the basis under which an agency must file an application for disability retirement on behalf of an appointee.
§ 752.605
Appeal rights.
(a) Under 5 U.S.C. 7543(d), a career appointee against whom an action is taken under this subpart is entitled to appeal to the Merit Systems Protection Board.
(b) A limited term or limited emergency appointee who is covered under § 752.601(c)(2) also may appeal an action taken under this subpart to the Merit Systems Protection Board.
§ 752.606
Agency records.
The agency must maintain copies of, and will furnish to the Merit Systems Protection Board and to the appointee upon his or her request, the following documents:
(a) Notice of the proposed action;
(b) Appointee's written reply, if any;
(c) Summary of the appointee's oral reply, if any;
(d) Notice of decision; and
(e) Any order effecting the action, together with any supporting material.