(2) He has been continuously employed since his appointment and is recommended for a competitive status by the agency in which he is employed.

(3) He stood higher on such register than another eligible who received an original probational appointment therefrom.

§ 3.107 Employees serving in competitive positions without competitive status. (a) An employee who has served at least one year under an appointment not limited to one year or less and has received an eligible rating in an open competitive examination appropriate for the position occupied may acquire a competitive status subject to the following conditions:

(1) The Commission is about to require displacement of such employee by certification from the register;

(2) The lowest rating reached in the regular order of certification does not exceed his rating by more than five. points.

(b) Where ten-point veterans are placed at the top of the register no person other than a ten-point veteran may be granted status under this section until all ten-point veterans standing higher on the register have been appointed or have been given appropriate consideration under the Veterans' Preference Act.

(c) In no event shall a non-veteran be granted status under this section until all veterans standing higher on the register have been appointed or have been given appropriate consideration under that act.

(d) In determining the required oneyear of service, military service may be included when such service was an interruption of the employee's present civilian service.

AUTHORITY: §§ 4.1 to 4.301, issued under R. S. 1753, sec. 2, 22 Stat. 403; 5 U. S. C. 631, 633. E. O. 9830, Feb. 24, 1947, 12 F. R. 1259; 3 CFR, 1947 Supp. Statutory provisions interpreted or applied are cited to text in parentheses.

SOURCE: §§ 4.1 to 4.301 appear at 12 F. R. 2837, except as noted following sections affected.

CIVIL SERVICE RULE IV

§ 4.1 Prohibition against political activity. Persons in the executive branch shall retain the right to vote as they choose and to express their opinions on all political subjects and candidates, but such persons shall not use their official authority or influence for the purpose of interfering with an election or affecting the result thereof. Persons occupying positions in the competitive service shall not take any active part in political management or in political campaigns except as may be provided by or pursuant to statute.

(Sec. 9. 53 Stat. 1148; 5 U. S. C., Sup. II, 118 (1))

§ 4.2 Attempting to secure withdrawal from competition. The Commission is authorized to take such disciplinary action as it deems appropriate whenever it finds that any person has influenced another person to withdraw from competition for any position in the competitive service for the purpose of either improving or injuring the prospects of any applicant for appointment.

(Sec. 5, 22 Stat. 405; 5 U. S. C. 637)

§ 4.3 Method of filling vacancies. In his discretion an appointing officer may fill any position by appointment through the competitive system from a certificate of eligibles issued under authority of the Commission, or by promotion, demotion, reassignment, transfer, reinstatement or restoration in accordance with the Civil Service Regulations. He shall exercise his discretion in all personnel actions solely on the basis of merit and fitness and without regard to political or religious affiliations, marital status, or

race.

§ 4.4 Personnel reports. Each agency shall report to the Commission, in such manner and at such times as the Commission may prescribe, such personnel information as it may request relating to positions and officers and employees in the competitive service or excepted from the competitive service by statute or Executive order, whether permanent, indefinite, temporary, or subject to contract.

REGULATIONS UNDER CIVIL SERVICE RULE IV

PROHIBITION AGAINST POLITICAL ACTIVITY

§ 4.101 Investigations. (a) Investigations of cases involving charges of prohibited political activity on the part of an officer or employee (both hereinafter comprehended within the term "employee") subject to the provisions of § 4.1 shall be conducted jointly by representatives of the Commission and of the agency where the individual is employed, unless either the Commission or the agency signifies that it will be unable to participate in the investigation. The Commission shall be notified of any complaint of political activity received by an agency and shall be given an opportunity to cooperate in any investigation that the agency may decide to make. Likewise, the Commission will not proceed with any investigation until the agency has

been notified and has been given an opportunity to participate.

(b) During the course of the investigation the employee shall be afforded an opportunity to make a statement, either personally or in writing, before the investigator, and shall be allowed to furnish names of witnesses who will support the statements he has made to the investigator.

§ 4.102 Investigation by correspondence. (a) In case the complaint involves a political activity violation that may be established by record evidence, the investigation may be conducted by correspondence. In such cases, the accused employee will be given an opportunity to furnish in writing any statement or information that he may desire and the employing agency will be furnished a copy of the letter directed to such accused employee allowing him the opportunity to furnish a statement.

§ 4.103 Proposed order. (a) When the Commission reaches the conclusion that a violation of § 4.1 has been established by the investigation, it shall issue a proposed order. This order, which shall include a statement of the charges against the employee and of the information in support thereof, shall be sent to the employee by registered mail, and he shall be allowed 15 days from the date of service to respond thereto in writing. A copy of this order shall also be sent to the agency in which the individual is employed. With his reply to the proposed order, the employee may request a hearing as hereinafter provided.

§ 4.104 Hearing. (a) The granting of a hearing shall not be a matter of right but shall be within the discretion of the Commission. No hearing shall be authorized in cases where the employee has admitted a violation or where a violation is established by indisputable record evidence.

(b) Hearings shall be held before a Hearing Examiner designated by the Commission and shall be at the Commission's office in Washington, D. C., unless the Commission shall order that the hearing be held elsewhere. All testimony shall be under oath or affirmation. employee may appear personally or by or with counsel. Counsel appearing shall have been admitted to practice before the Commission in accordance with Rule 4 of the rules of practice under the

The

act of August 2, 1939 as amended (§ 23.4 of this chapter).

(c) The hearing shall be of the limited scope necessitated by the Commission's lack of the power of subpena in proceedings under § 4.1. Because of the absence of that authority, it cannot undertake to conduct said hearing as a proceeding de novo, or to have evidence introduced therein in support of the charges against the respondent. Owing to the lack of subpena power, evidence in support of charges must be limited to information given voluntarily. Such information is obtained upon an understanding of confidential treatment. Consequently, evidence supporting the charges cannot be introduced at the hearing. The hearing shall be unilateral, that is, it shall be only for the presentation of evidence on behalf of the employee in rebuttal of the charges disclosed by the proposed order. Counsel for the Commission may cross-examine witnesses.

(d) It shall be within the discretion of the Hearing Examiner to permit, and fix the time for, filing of briefs. The proceedings at the hearing will not be reported, unless the Commission shall so direct; but the employee shall have the privilege of himself having the evidence taken stenographically. If the proceeding is not taken by a reporter on behalf of the Commission, the employee and Commission counsel shall submit a summary thereof to the Hearing Examiner within a time fixed by him. Any disagreement concerning the contents of the summary shall be resolved by the Examiner, and the parties may file written exceptions. The summary and any exceptions shall be certified by the Hearing Examiner and shall become a part of the record.

§ 4.105 Final order. (a) The Commission's final order shall be based on the entire record of the case, including the report of the investigation, the reply of the employee to the proposed order, and in cases where a hearing has been granted, the report of the Hearing Examiner. If the employee does not reply to the proposed order within 15 days from the date of service, a final order shall be based on the report of investigation alone.

(b) The final order shall contain a statement of the charges that have been substantiated and shall prescribe the

penalty to be imposed. Copies of the final order shall be served on the respondent and on the agency wherein the individual is employed.

§ 4.106 Penalties. (a) Since violations of § 4.1 are by law violations also of section 9 (a) of the Hatch Act, the penalty required by that act must of necessity be imposed. The employee must be immediately removed from the position or office held and may not again be employed in such position or office. If the appointing officer fails to carry out the instructions of the Commission within ten days after receipt thereof, the Commission shall certify the facts to the head of the agency concerned for proceedings for withholding salary in accordance with § 5.5 of this chapter.

(b) When the Commission directs the removal of an employee for a violation of § 4.1, and the Hatch Act, the penalty laid down in paragraph (a) of this section shall be applied, even where the agency reports that the individual has been removed, on grounds other than a violation of § 4.1 and the Hatch Act. Such individual may not again be employed in the position from which he was removed. The provisions of § 4.107 regarding reemployment in positions other than the one from which removal was effected shall also apply.

(c) The above procedure shall apply also where an employee has resigned from his position or office prior to the Commission's determination that he had violated § 4.1, and the Hatch Act.

(Sec. 9. 53 Stat. 1148; 5 U. S. C., Sup. II, 118 (1))

§ 4.107 Reemployment. (a) an employee removed for violation of § 4.1 may not be employed again, in accordance with a decision by the Comptroller General on the law (25 Comp. Gen. 271), in any position the salary or compensation of which is payable under the same appropriation as the position from which removed: Provided, That in all cases involving a finding that a Federal employee has engaged in prohibited political activity the Commission may consider the matter from a suitability standpoint and may establish a definite period of debarment applicable to the employee for all Federal positions within the Commission's jurisdiction.

(Sec. 9. 53 Stat. 1148; 5 U. S. C., Sup. II, 118 (i)) [12 F. R. 6801]

WITHDRAWAL FROM COMPETITION

§ 4.201 Attempting to secure withdrawal from competition. (a) Applicants for competitive examination, or eligibles on any register, or officers or employees in the executive branch, shall not directly or indirectly persuade, induce, or coerce, or attempt to persuade, induce, or coerce any prospective applicant, applicant, or eligible to withhold filing application or to withdraw from competition or eligibility for positions in the competitive service for the purpose of either improving or injuring the prospects for appointment of any such applicant or eligible. The penalty for violation of this section by applicants or eligibles shall be cancellation of application or eligibility, as the case may be, and such other penalty as the Commission may deem appropriate. (Sec. 5, 22 Stat. 405; 5 U. S. C. 637)

DEFINITIONS

§ 4.301 Definitions. (a) As used in the regulations in Parts 1 to 10 of this chapter:

(1) "Agency" means any executive department or independent establishment of the Federal Government, including a Government owned and controlled corporation, and any portion of the legislative and judicial branches and of the Government of the District of Columbia insofar as they have positions subject to the Civil Service rules and regulations.

(2) "Appointing officer" means a person having power by law, or by lawfully delegated authority, to make appointments.

(3) "Armed forces" means the armed forces of the United States.

(4) "Competitive service" shall have the same meaning as the words "classified service", or "classified (competitive) service" or "classified civil service" as defined in existing statutes and Executive orders. The competitive service shall include all civilian positions in the executive branch of the Government unless specifically excepted therefrom under statute or Executive order, and all positions in the legislative and judicial branches and of the District of Columbia Government which are specifically made subject thereto by statute. Persons occupying such positions shall be considered as being in the competitive service when they have a competitive status.

a

(5) "Competitive status" means status which permits a person to be promoted, transferred, reassigned, and reinstated to positions in the competitive service without competitive examination, subject to the conditions prescribed by the Civil Service rules and regulations for such noncompetitive actions. A competitive status is acquired by probational appointment through competitive examination, or may be granted by statute, Executive order, or the Civil Service rules.

(6) "Continuous service" means an active duty status but may include not more than one break in service of less than thirty calendar days.

(7) "Demotion" means a change from one position to another position of lower grade or lower minimum salary while serving continuously within the same agency.

(8) "Metropolitan area of Washington, D. C." means the area so defined by the Bureau of the Census, and includes the District of Columbia, and Alexandria City, Arlington County, and part of Fairfax County, Virginia, and parts of Montgomery and Prince Georges Counties, Maryland.

(9) "Military service" means active service in the armed forces of the United States.

(10) "Promotion" means a change from one position to another position of higher grade or higher minimum salary while serving continuously within the same agency.

(11) "Reassignment" means a change, without promotion or demotion, from one position to another position in a different line of work (such as from clerk to stenographer, chauffeur to guard, etc.) or in the same line of work (such as from clerk-searcher to clerk-recorder) or in service (such as subprofessional to clerical, administrative and fiscal) while serving continuously within the same agency.

(12) "Removal" means separation from the service on charges of delinquency or misconduct, or because the employee's capacity is not sufficient to justify his retention in the service.

(13) "Rule" means Civil Service rule.

(14) "Suspension" means a temporary non-pay status and absence from duty required by the appointing officer for disciplinary reasons, or for other reasons pending inquiry.

act of August 2, 1939 as amended (§ 23.4 of this chapter).

(c) The hearing shall be of the limited scope necessitated by the Commission's lack of the power of subpena in proceedings under § 4.1. Because of the absence of that authority, it cannot undertake to conduct said hearing as a proceeding de novo, or to have evidence introduced therein in support of the charges against the respondent. Owing

to the lack of subpena power, evidence in support of charges must be limited to information given voluntarily. Such information is obtained upon an understanding of confidential treatment. Consequently, evidence supporting the charges cannot be introduced at the hearing. The hearing shall be unilateral, that is, it shall be only for the presentation of evidence on behalf of the employee in rebuttal of the charges disclosed by the proposed order. Counsel for the Commission may cross-examine witnesses.

(d) It shall be within the discretion of the Hearing Examiner to permit, and fix the time for, filing of briefs. The proceedings at the hearing will not be reported, unless the Commission shall so direct; but the employee shall have the privilege of himself having the evidence taken stenographically. If the proceeding is not taken by a reporter on behalf of the Commission, the employee and Commission counsel shall submit a summary thereof to the Hearing Examiner within a time fixed by him. Any disagreement concerning the contents of the summary shall be resolved by the Examiner, and the parties may file written exceptions. The summary and any exceptions shall be certified by the Hearing Examiner and shall become a part of the record.

§ 4.105 Final order. (a) The Commission's final order shall be based on the entire record of the case, including the report of the investigation, the reply of the employee to the proposed order, and in cases where a hearing has been granted, the report of the Hearing Examiner. If the employee does not reply to the proposed order within 15 days from the date of service, a final order shall be based on the report of investigation alone.

(b) The final order shall contain a statement of the charges that have been substantiated and shall prescribe the

penalty to be imposed. Copies of the final order shall be served on the respondent and on the agency wherein the individual is employed.

§ 4.106 Penalties. (a) Since violations of § 4.1 are by law violations also of section 9 (a) of the Hatch Act, the penalty required by that act must of necessity be imposed. The employee must be immediately removed from the position or office held and may not again be employed in such position or office. the appointing officer fails to carry out the instructions of the Commission within ten days after receipt thereof, the Commission shall certify the facts to the head of the agency concerned for proceedings for withholding salary in accordance with § 5.5 of this chapter.

If

(b) When the Commission directs the removal of an employee for a violation of § 4.1, and the Hatch Act, the penalty laid down in paragraph (a) of this section shall be applied, even where the agency reports that the individual has been removed, on grounds other than a violation of § 4.1 and the Hatch Act. Such individual may not again be employed in the position from which he was removed. The provisions of § 4.107 regarding reemployment in positions other than the one from which removal was effected shall also apply.

(c) The above procedure shall apply also where an employee has resigned from his position or office prior to the Commission's determination that he had violated § 4.1, and the Hatch Act. (Sec. 9. 53 Stat. 1148; 5 U. S. C., Sup. II, 118 (1) )

§ 4.107 Reemployment. (a) an employee removed for violation of § 4.1 may not be employed again, in accordance with a decision by the Comptroller General on the law (25 Comp. Gen. 271), in any position the salary or compensation of which is payable under the same appropriation as the position from which removed: Provided, That in all cases involving a finding that a Federal employee has engaged in prohibited political activity the Commission may consider the matter from a suitability standpoint and may establish a definite period of debarment applicable to the employee for all Federal positions within the Commission's jurisdiction.

(Sec. 9. 53 Stat. 1148; 5 U. S. C., Sup. II, 118 (1)) [12 F. R. 6801]