2-156-385 Probable cause finding.

   The inspector general may request the board to issue a finding as to whether evidence shows that there is probable cause to believe that the subject of an investigation (for purposes of this section, “subject”) has violated this chapter, as follows:

   (1)   The inspector general may request the board to make a probable cause finding only after notifying the subject in writing. Such notice shall specify all the charges to be brought against the subject, including a summary of the facts alleged to support such finding, and shall state that the inspector general intends to request a probable cause finding by the board. Such notice must be served upon the subject at least 30 days before the request is made to the board.

   (2)   When requesting a probable cause finding, the inspector general shall provide to the board a final investigative report summarizing its investigation, which shall include all evidence supporting its findings and recommendation, and include an index describing the evidence gathered during the investigation.

   (3)   The board or its designee shall review the report, recommendation and evidence provided by the inspector general. If the board or its designee finds that the evidence does not show that there is probable cause to believe that the subject has violated this chapter, the board shall close the matter and so notify the inspector general and the subject. If the board or its designee finds that the evidence shows that there is probable cause to believe that the subject has violated this chapter, the board or its designee shall serve notice of the allegations upon the subject. Such notice shall inform the subject of his right to provide a written response, written submissions and a summary of the evidence supporting his position. The notice also shall set a meeting date with the board or its designee to discuss the allegations and the evidence. The subject must submit all written material and documents supporting his position at least 10 days before the date of the meeting. At the meeting, evidence presented in the matter shall be discussed and the subject shall be given an opportunity to respond to the evidence presented against him. The subject may be represented by counsel at the meeting. The entire meeting shall be reliably recorded or, alternatively, transcribed by a certified court reporter. All records of the meeting shall be kept confidential to the extent allowable under applicable law.

   (4)   After reviewing all the documents and evidence submitted by the parties, including oral and written responses, the board may: (i) seek to settle the matter by fine, discipline, or in such other manner as it deems appropriate; (ii) pursue an action for discipline; (iii) pursue an action for a fine; or (iv) take no action. If a settlement agreement involves the imposition of discipline and the subject is a current employee, such settlement agreement must be approved by the head of the city department, agency or office in which the employee works. If a settlement is reached, the full final settlement agreement, including the name of the subject of the investigation and the disciplinary measure imposed on him, shall be made publicly available to the extent allowable under applicable law. Except that in matters involving a violation of 2-156-149, the board may only pursue option (i), (iii), or (iv) and may also require attendance at such sexual harassment training as is designated by the Department of Human Resources.

   (5)   If the board determines to pursue an action for a fine, the matter shall proceed to a hearing on the merits as provided in Section 2-156-392.

   (6)   If the subject is a current employee and the board determines to pursue an action for discipline instead of a fine, within 40 days of such determination, the board shall submit a written recommendation, with all the evidence and documents supporting the board's recommendation: (i) to the mayor, if the employee is a department head or an appointed official; (ii) to the chairman of the city council committee or to the alderman for whom the employee works, if the employee is a city council employee; or (iii) to the head of the department or agency in which the employee works, if the employee is neither a department head, appointed official or a city council employee. A person to whom the board has transmitted its recommendation for action shall, within 30 days of receipt of the recommendation, report to the board in writing the actions taken on the recommendation and, to the extent that the person declines to take any recommended action, provide a written statement of reasons for his decision.

(Added Coun. J. 2-13-13, p. 46730, § 1; Amend Coun. J. 7-29-15, p. 3567, § 1; Amend Coun. J. 2-10-16, p. 19348, § 3; Amend Coun. J. 11-8-17, p. 58447, § 4)

2-156-390 Reserved.

Editor's note – Coun. J. 2-13-13, p. 46730, § 5, repealed § 2-156-390, which pertained to actions on complaints or investigations.

2-156-392 Hearing on the merits – Fines.

   (a)   If the board determines pursuant to Section 2-156-385 to pursue an action for a fine, a hearing on the merits shall be held on the matter no less than 60 days after that determination, as follows:

      (1)   A hearing on the merits shall be held in a closed session, to the extent allowable under applicable law, before a hearing officer.

      (2)   The corporation counsel or his designee shall be the prosecutor in proceedings conducted pursuant to this section or any hearing reopened pursuant to Section 2-156-396. The prosecutor shall prepare a statement of charges, which shall be served upon the subject of the hearing (for purposes of this section and Section 2-156-396, “respondent”) within 30 days of the board's determination to pursue an action for a fine with: (i) a list of all witnesses the city may call at the hearing; (ii) a copy of all documents the city intends to introduce at the hearing; (iii) any potentially exculpatory material in the city's possession from the inspector general's investigation; and (iv) a notice of the hearing setting the date of the hearing. The prosecutor may request, as a matter of right, a one-time extension of up to 30 days of the date of serving the statement of charges. The hearing officer may grant any subsequent request for extension by the prosecutor only upon a showing of good cause. Nothing in this subsection shall be construed to limit or divest the prosecutor of the discretion not to file charges, if in the prosecutor's judgment, the evidence in the record does not support the charges.

      (3)   The respondent shall be given an opportunity to submit a written answer to the charges within 21 days after the statement of charges is served upon him. The respondent may request, as a matter of right, a one-time extension of up to 30 days of the date of submitting his written answer. The hearing officer may grant any subsequent request for extension by the respondent only upon a showing of good cause. The respondent or the prosecutor may request, as a matter of right, a one-time extension of the date of the hearing for up to 30 days. If the respondent or the prosecutor requests subsequent extensions of the date of the hearing, the hearing officer may grant such extensions only upon a showing of good cause by the requesting party. No later than 10 days before the date of the hearing, the respondent shall provide to the prosecutor: (i) a list of all witnesses the respondent may call at the hearing, and (ii) a copy of all documents the respondent intends to introduce at the hearing.

      (4)   The hearing officer may receive written submissions, witness testimony, argument and documents regarding the charge. The hearing officer shall present his report and recommendation on the charges to the board.

      (5)   The entire hearing on the merits, including any testimony presented to the hearing officer and argument by the parties, shall be reliably recorded or, alternatively, transcribed by a certified court reporter. All records of the hearing on the merits shall be kept confidential to the extent allowable under applicable law.

      (6)   Within 40 days after the hearing on the merits, the board shall vote on the hearing officer's recommendation, and shall issue a written opinion imposing a fine or stating that no violation has occurred.

      (7)   If the board imposes a fine, the board's written opinion shall include the name and, if the respondent is a city official or employee, position of the respondent found to have violated this chapter, and an analysis of the evidence and the provision of this chapter at issue. If the board finds that no violation has occurred, it shall so state in its written opinion that includes an analysis of the evidence and the provision of this chapter at issue, and which opinion shall not, unless the respondent requests otherwise, include his name or position. The opinion of the board shall be made publicly available.

   (b)   Upon the board's imposition of a fine, the respondent shall either: (1) pay the fine or (2) petition the board to reconsider its opinion as provided in section 2-156-396.

   (c)   Upon a final determination by the board that the respondent did not commit a violation of this chapter, the respondent may submit a request to the board seeking reimbursement of reasonable legal expenses and costs incurred in defending the alleged violation. The request for reimbursement shall be granted if the board determines, using established legal principles, that the statement of charges was submitted and pursued in bad faith. If the board determines that the statement of charges was submitted and pursued in bad faith as provided in this section, such finding shall be made publicly available.

(Added Coun. J. 2-13-13, p. 46730, § 1; Amend Coun. J. 7-29-15, p. 3567, § 1; Amend Coun. J. 2-10-16, p. 19348, § 5)

2-156-395 Reserved.

Editor's note – Coun. J. 2-13-13, p. 46730, § 5, repealed § 2-156-395, which pertained to complaints against aldermen.

2-156-396 Request for reconsideration and appeal.

   (a)   Any respondent who is found by the board to have violated this chapter and who is the subject of a fine may, within 14 days of issuance of the board's opinion, petition the board to reconsider its opinion. Such petition shall be made only on the basis of newly discovered evidence or an intervening change of the law.

   (b)   Upon receiving a petition for reconsideration, the board may: (1) reopen the hearing process; (2) modify its opinion; or (3) deny the petition.

   (c)   The final decision of the board imposing a fine shall be subject to judicial review in accordance with applicable law.

(Added Coun. J. 2-13-13, p. 46730, § 1; Amend Coun. J. 7-29-15, p. 3567, § 1)

2-156-400 Confidentiality.

   Adjudications conducted by and advisory opinions issued by and complaints to the board and determinations and recommendations thereon shall be confidential, except as provided in this chapter or as necessary to carry out powers and duties of the board or to enable another person or agency to consider and act upon the notices and recommendations of the board; provided that, without identifying the person complained against or the specific transaction, the board may (a) comment publicly on such matters and recommendations and (b) publish summary opinions to inform city personnel and the public about the interpretation of provisions of this chapter.

(Prior code § 26.2-40; Added Coun. J. 5-16-90, p. 16204; Amend Coun. J. 7-29-15, p. 3567, § 1)

2-156-401 Disclosure of confidential information.

   (a)   If, by a vote of the majority of its members, the board of ethics determines that one of its members or the executive director has publicly disclosed any information relating to an investigation or findings under this chapter, unless such disclosure is otherwise permitted under this chapter, the board may recommend to the mayor that such member be removed from the board, or that the executive director be removed. Removal shall occur upon recommendation by the mayor and approval of an appropriate resolution by the city council.

   (b)   Any employee of the board of ethics, or other city employee, who is found to have publicly disclosed any information relating to an investigation or findings under this chapter, unless such disclosure is otherwise permitted under this chapter, shall be subject to employment sanctions, including dismissal from city employment.

(Added Coun. J. 7-30-97, p. 50892)

2-156-402 Waivers.

   (a)   When requested by a city official or employee, the board may grant a waiver from compliance with any of the following:

      (1)   The gift restrictions in Section 2-156-142(a) to the extent they apply to material or travel expenses for meetings;

      (2)   The post-employment restrictions provided in Sections 2-156-100 and 2-156-105;

      (3)   The interest in city business restrictions provided in Section 2-156-110; and

      (4)   The restrictions pertaining to matters related to a city official's or employee's immediate former employer or client as provided in Section 2-156-111(d).

   (b)   Any waiver shall be in accordance with rules adopted by the board, in writing and shall be made publicly available.

(Added Coun. J. 2-13-13, p. 46730, § 1; Amend Coun. J. 7-29-15, p. 3567, § 1)