§ 51-307. Complaints - Investigations and hearings - Written decisions - Disclosure - Conciliation agreements - Penalties.

A.  Except as otherwise provided in this section, complaints alleging violations of the provisions of this act by persons, committees, candidates, public officials or public employees of county government shall be filed with the Ethics Commission.  The Commission shall not accept a complaint alleging a violation by a candidate for local office other than county office.  Such complaint must be filed by the complainant with the district attorney of the county in which the violation is alleged to have occurred.

B.  The Commission shall not initiate any investigation or other proceedings except:

1.  Pursuant to a complaint which meets the requirements of this section; or

2.  Pursuant to the provisions of Section 23 of this act.

C.  Complaints shall be made in writing and signed by the person making the complaint and shall be verified and notarized.  Each complaint shall state specifically the sections of the Political Subdivisions Ethics Act that the person named in the complaint is alleged to have violated and the date of the alleged violation, which shall not be more than two (2) years before the date the complaint is filed.  The Executive Director shall be authorized, without action of the Commission, to refuse to accept any complaint which does not meet the requirements of this section and shall notify the person filing the complaint of the reasons for such refusal.  The Executive Director shall, without action of the Commission, forward any complaint filed with the Commission, over which the Court on the Judiciary has jurisdiction to the Court on the Judiciary.  The Executive Director shall forward any complaint alleging a violation by a member of the Commission to the Council on Judicial Complaints, which shall be authorized to refer the complaint to the district attorney of the county in which the alleged violation occurred.

D.  No person shall disclose the contents of a complaint, his or her intention to file a complaint, the fact that a complaint has been filed or his or her knowledge of another person's intention to file a complaint; provided, the respondent may disclose the entire contents of a complaint and any related materials at any time in the proceedings.  If the respondent so discloses, any provisions of this act prohibiting disclosure of information shall be waived and the complaint and all records and materials related thereto shall be open for public inspection.

E.  No complaint alleging any violation of the provisions of Sections 24 through 31 of this act by a candidate or by any person in connection with a campaign for county office may be filed with, received by or initiated by the Commission during the period beginning on the first day of the period for filing declarations of candidacy for the office and ending on the day after certification of the results of the election at which the office is filled.

F.  A copy of any complaint filed with the Commission that meets the requirements of subsection C of this section, and a general statement of the applicable laws with respect to the complaint, shall be sent by certified mail to the person named in the complaint.  Such person shall have twenty (20) days from the day of receipt of the copy of the complaint to file a written response to the complaint.  Upon written request by the person, the chairman of the Commission may extend the time for response an additional twenty (20) days.

G.  A complaint may be withdrawn by the complainant at any time during the proceedings outlined in this section with the consent of the Commission and the respondent.

H.  Upon the filing of a complaint, the Commission shall determine if the complaint may be resolved by action on the part of either party or by a conciliation agreement pursuant to the provisions of subsection Q of this section or if the complaint should be dismissed.  If not, the Commission may cause an investigation to be conducted and may order a hearing to be held pursuant to the provisions of Article II of the Administrative Procedures Act.  The respondent shall have the right to be present during any of the proceedings except the final deliberations and the right to appear with counsel and shall be notified that the investigation and hearing may result in a referral of the complaint to the appropriate authority for prosecution if a criminal penalty is provided in this act for the violation cited in the complaint.  The complainant shall not be present except at such times as he may be required to provide testimony.

I.  The rules of evidence shall apply to any hearings held pursuant to the provisions of this section.

J.  All proceedings held pursuant to the provisions of this section shall be conducted in executive sessions.  All records relating to any such complaint, review or investigation shall be confidential and not open for public inspection.

K.  The Commission shall cause a record to be made of such proceedings and shall request a hearing officer to conduct the proceedings and advise the Commission as necessary.  The hearing officer shall be an attorney licensed to practice law in this state.  The Court Administrator shall designate hearing officers.  The Executive Director or designee shall present the complaint and any evidence supporting the complaint.  The Commission shall determine:

1.  The order of the proceedings;

2.  The order in which the Executive Director or designee and the respondent and his or her counsel are to put on testimony and evidence, cross-examine witnesses and present arguments; and

3.  Such other matters as may be necessary to ensure orderly proceedings.  The Commission may request the assistance of the hearing officer in making such determinations.

L.  At the conclusion of the hearing, the Commission shall conduct final deliberations and shall determine if the complaint may be resolved by a conciliation agreement.  No other person shall be present at such deliberations; provided, after such determination, the Commission may request the assistance of the Executive Director.

M.  At the conclusion of final deliberations, the Commission shall set forth its determination in writing with findings of fact and conclusions of law.  Such written decision with findings of fact and conclusions of law must contain one of the following orders:

1.  A dismissal of the complaint;

2.  An order reflecting the terms of a conciliation agreement with the respondent pursuant to the provisions of subsection Q of this section; or

3.  For complaints alleging a violation of this act for which a criminal penalty is provided, an order referring the complaint and all material gathered by the Commission concerning the alleged violation to the appropriate authority for prosecution or action; provided, such referral shall only be made upon the affirmative vote of a majority of the members serving that there is probable cause to believe that the respondent committed a knowing and willful violation of the sections of the Political Subdivisions Ethics Act cited in the complaint.  If the Commission refers the complaint for prosecution or action, the records of any proceedings held pursuant to the complaint shall be transcribed.

As used in this section, "appropriate authority" means the district attorney of the county in which the violation occurred.  If uncertainty exists as to the county in which the violation occurred, the Commission may prosecute in, or refer complaints to the district attorney of, any county in which the evidence indicates the violation might have been committed.

N.  If the appropriate authority declines to prosecute or take action, the investigation and order and all materials related thereto shall remain confidential.  If the appropriate authority decides to prosecute or take action, the respondent shall be entitled to a copy of any report prepared by the Commission concerning the complaint and only that material presented at trial shall become open for public inspection.  If the Commission dismisses the complaint, all materials related to the investigation shall be destroyed by the Commission six (6) months after the date of dismissal unless such materials are required for prosecution of filing a frivolous complaint pursuant to the provisions of Section 22 of this act.

O.  In making a determination pursuant to the provisions of subsection M of this section, the Commission may exercise such discretion as it deems necessary to provide fairness to the accused and to maintain confidence in the public officials and employees who are subject to the provisions of this act.

P.  Any person disclosing any material made confidential pursuant to the provisions of this section, upon conviction, shall be guilty of a misdemeanor and shall be punished by a fine not exceeding Ten Thousand Dollars ($10,000.00).  If the Commission upon a vote of a majority of the members serving determines that confidential information has been disclosed, it shall forward any materials related to such disclosure, along with any information it deems necessary, to the appropriate district attorney.

Q.  A conciliation agreement to resolve any complaint filed may be entered into by the Commission and the respondent at any time during the proceedings provided for in this section.  A conciliation agreement, unless violated, shall be a bar to any other action by the Commission or the district attorney.  A conciliation agreement shall not be made public unless such disclosure is made part of the agreement.  A conciliation agreement may include a requirement that the respondent pay a civil penalty of up to Two Thousand Five Hundred Dollars ($2,500.00).

Such penalties shall be deposited with the State Treasurer to the credit of the General Revenue Fund.  If the Commission finds, or either party alleges, that a conciliation agreement has been violated, the Commission shall conduct a hearing under the procedures specified in this section to determine if the conciliation agreement has been violated and, if so, if the complaint should be referred to the appropriate authority for prosecution.  A conciliation agreement may be amended by the Commission.

Added by Laws 1995, c. 343, § 21, eff. July 1, 1995.