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Complaints and Investigations
This is the place to raise and discuss issues involving the filing of a complaint regarding an alleged violation of the Code, and the ensuing investigation.
Possible issues for discussion include who may file a complaint; whether complaints must be sworn; whether an Ethics Commission may file its own complaints; whether it may file a complaint based on others' allegations, anonymous, or not; whether an Ethics Commission may make a settlement with the respondent; reimbursement of respondents' attorney fees; and how to handle complaints based on false statements. Confidentiality of investigations is dealt with in another forum.
213. Filing a Complaint; Investigations.
1. Upon receipt of a sworn complaint on a form prepared by the Ethics Commission pursuant to 208(2), which any person or entity may file, the Ethics Commission will first determine if it, in fact, alleges an action or inaction that, if the allegations are true, might constitute a violation of this code, and that at least one person or entity accused of a violation is covered by this code. If the Ethics Commission determines that no such action or inaction has been alleged or that no one accused is covered by this code, then it will dismiss the complaint with notice to the complainant. The Ethics Commission must make this determination within fifteen days of receipt of a sworn complaint.
Comment: Sworn complaints are the norm, and some ethics codes contain penalties for those who make knowingly false accusations in their complaints. But as is discussed above in the comments to 200(18), there is an argument for the allowance of complaints made via a hotline, even for anonymous complaints, so long as they are investigated by the ethics commission and then brought in the form of an ethics commission complaint, pursuant to subsection 3 below. Even with whistle-blower protection, city employees - the people who know best what is happening in the city - are afraid to come forward or get involved in controversial, protracted proceedings. Officials often depend on this reluctance when they act unethically. Allowing hotline tips does not require changing this subsection, because the final complaint would be filed by the ethics commission.
Most ethics codes limit complaints to individuals, but this model code allows entities to file as well. This is especially intended to allow civic organizations and citizens groups to file complaints, because there are many instances where an individual's filing leads to slap suits and other forms of harassment from wealthy respondents. The threat of suit is one of the most serious obstacles to the workings of an ethics system.
2. A complaint must be filed within one year after the date the complainant discovered the alleged violation. Complaints may be filed against officials and employees* who no longer hold office or are no longer employed.
3. The Ethics Commission may, on it own initiative, determine that a violation of this code may exist and prepare a complaint of its own. The Ethics Commission may also amend a complaint that has been filed with it by adding further allegations or parties, by deleting allegations that would not constitute a violation of this code or amending allegations so that they will constitute a violation of this code, or by deleting allegations against persons or entities not covered by this code.
4. The Ethics Commission must send notification of the accepted complaint, as amended, to the respondent against whom the complaint was filed, not later than seven days after making the determination in subsection 1 or the preparation of a complaint pursuant to subsection 3. A copy of the complaint, and of any amendments, must accompany such notice. The Ethics Commission must also send notification to the complainant in writing of its receipt and acceptance of the complaint, and of any amendments. Here and elsewhere, "complainant" and "respondent" might consist of more than one person or entity.
5. If a sworn complaint is accepted or prepared pursuant to subsections 1 or 3, the Ethics Commission must conduct an investigation. From this point on, the complainant may not withdraw his or her complaint, although he or she may request that the Ethics Commission either make a finding of no probable cause or no violation, or suggest a settlement with the respondent. In conducting such an investigation, the Ethics Commission may administer oaths or affirmations, subpoena witnesses, compel their attendance, and require the production of any books or records it deems relevant and material. The Police Department and all city agencies, bodies, officials, and employees are required to respond fully and truthfully to all enquiries and cooperate with all requests of the Ethics Commission or its agents relating to an investigation. It is a violation of this code for any official or employee* to deny access to information requested by the Ethics Commission in the course of an investigation or a public hearing, except to the extent that such denial is required by federal, state, or local law.
Comment: The reason complainants are not permitted to withdraw their complaints is to prevent respondents from pressuring them to do so. Once a possible violation has been brought to the Ethics Commission's attention, it is not a proceeding of complainant against respondent, but an ethics issue for the city to determine.
Some cities might want to go beyond settlement at the complainant's suggestion to allowing the respondent a chance to admit and remedy violations of the code, either by providing a short period (up to two weeks) before the investigation begins, or by allowing remedy during the investigation period itself. The Commission must determine whether any actions truly remedy the situation sufficiently that not even a reprimand is in order. In the alternative, a city might want to allow the Commission to enter into settlement agreements with respondents, allowing for, say, a reprimand in return for remedying a violation, for example, by returning money, resigning from a board, making a formal apology, or changing the terms of a contract. It should be recognized, however, that in many cases, it is too late for a remedy, because action has been taken that cannot be undone.
Please share your experiences with settlements and various sorts of reparations in municipal ethics cases, and what you think of alternative approaches and provisions.
6. The goal of the investigation is to determine whether there is probable cause to believe that a violation of this code has occurred. "Probable cause" means a preponderance of the evidence, that is, that it is more likely than not that a violation has occurred.
Comment: Please identify other definitions of "probable cause" and suggest what you feel are their good and bad points. Has anyone dealt with a code that does not provide for the interim finding of probable cause?
7. The respondent may file with the Ethics Commission a response to the complaint within thirty days after his or her receipt of the complaint. The response, if any, must be sent to the complainant by the Ethics Commission within five days after its filing, and, within fifteen days after receipt, the complainant may file with the Ethics Commission a response to the respondent's response, which the Ethics Commission must send to the respondent within five days after its filing.
8. During the investigation period, the Ethics Commission may amend a complaint to include other violations which it reasonably suspects to have occurred. It must send a copy of any such amendment to the respondent and complainant within seven days after the amendment has been made.
9. The investigation will be confidential unless the respondent requests that it be public or unless the respondent makes public the fact of or any information concerning the proceeding. The respondent has the right to appear and be heard, and the complainant has the right to attend any such hearing and be heard.
Comment: Confidentiality during an investigation is important to protect innocent respondents, as well as to depoliticize the process. Complaints are sometimes filed for the express purpose of embarrassing, harassing, or taking revenge on public officials, often during an election season. No one can stop people from making public accusations, but sadly, when accusations become official proceedings, they are taken more seriously by the press as well as by city residents. It is important that the proceedings themselves remain secret until a finding of probable cause has been made, and that an ethics commission be clear that even such a finding is far from an actual finding of a violation. It should be emphasized that confidentiality here refers solely to the proceedings themselves, including their existence, not to the underlying accusations. A resident can tell the world that an official is benefitting from a city contract (whether or not this is true; defamation laws deal with false accusations), but not that the ethics commission is investigating a complaint that makes this accusation.
10. The Ethics Commission must complete its investigation within ninety days. If it does not, then there is a presumption of probable cause, and public hearings will be held pursuant to 214.
Comment: Has anyone encountered problems with delayed investigations that would require a provision such as this? Has anyone encountered problems with a time limit on preliminary investigations?
11. If the Ethics Commission determines that there is no probable cause to believe that a violation of this code occurred, it will dismiss the complaint and send notification of this dismissal to the complainant and respondent. If it determines that there is probable cause, it will send notification of this finding to the complainant and respondent. In its letter of dismissal or notification of finding, which must be sent within five days after the vote on probable cause, the Ethics Commission must set forth a brief summary of the facts and the reasons for dismissal or a finding of probable cause.
12. Nothing in this section may be construed to permit the Ethics Commission to conduct an investigation of itself or of any of its members or staff. If the Ethics Commission receives a complaint alleging that the Commission or any of its members or staff has violated any provision of this code, or any other law, the Commission must promptly transmit to the legislative body a copy of the complaint.
13. If a complaint is made under this section with the knowledge that it is without foundation in fact, the respondent has a cause of action against the complainant for double the amount of damages caused by the complaint. If the respondent prevails in such an action, the court may award the respondent the costs of the action and reasonable attorney's fees.
Comment: An alternative approach to allowing a suit for double damages is to have the city directly protect a wronged respondent. This would be advantageous to the system only if it were limited to complaints that are found to be without grounds, that is, frivolous or without any basis in fact. Any reimbursement beyond this becomes both expensive and questionable. I would like to hear from people who have had good and bad experiences with such reimbursement rules. Here is language for that approach:
13. Legal Fees: The city will pay reasonable attorney's fees, up to a limit of $_______, with respect to an Ethics Commission proceeding, not including a request for an advisory opinion, if the Ethics Commission does not find the respondent to have violated this code [or, in the alternative, "finds that a complaint was filed with the knowledge that it is without foundation in fact."]
