A. Dismissal Of Frivolous Complaints: The Commission may dismiss frivolous complaints or dismiss inquiries for consideration without further action for any of the following reasons:
1. The Commission has no jurisdiction over the individual(s) named in the complaint or inquiry for consideration;
2. The alleged violation, even if true, would not constitute a violation of the Code of Ethics;
3. The allegations/issues were previously asserted in another complaint or inquiry for consideration that is already being considered or was resolved by the Commission;
4. The alleged violation, even if true, is minor in nature and fails to justify the use of public resources to prosecute;
5. The allegations/issues involve actions or events that occurred more than twelve (12) months prior to the date of the filing of the complaint;
6. The complaint is, on its face, groundless, or brought for purposes of harassment;
7. The individual who is the subject of the complaint previously obtained an advisory opinion from the Commission or the City Attorney's Office that identifies the conduct as not being in violation of the Code of Ethics;
8. The Commission is referring the complaint to another agency with jurisdiction over the allegations/issues set forth in the complaint and such referral will better serve the public interest (e.g., City Council, the Mayor, City department or enterprise, law enforcement, District Attorney, State or Federal Attorney General, or Department of Justice);
9. The complaining party failed to follow the Commission's Rules of Procedure for filing a complaint;
10. The complaining party failed to file the complaint confidentially as required by the Commission's Rules of Procedure; and/or
11. The complaint was filed anonymously.
B. Confidentiality: A record of dismissal of a complaint as deemed frivolous shall be maintained as confidential by the Commission. The City expressly adopts Colorado Constitution, article XXIX, section 5(3)(b), for the discrete purpose of allowing the Commission to dismiss frivolous complaints without conducting a public hearing and to require complaints dismissed as frivolous be maintained as confidential. The Code of Ethics is a matter exclusively within the City's home rule authority and a proper exercise of the City Council's legislative authority on behalf of the City, superseding any other applicable Colorado Statutes. Other than as set forth in this subsection, this Code of Ethics is in compliance with, and therefore supersedes Colorado Constitution, article XXIX, "Ethics In Government," by its own terms.
C. Commission Investigation/Findings/Council Procedures:
1. Complaints Against Council: Complaints against five (5) or more members of City Council shall be handled pursuant to subsection D of this section.
2. Investigation: The Commission shall take such steps as necessary pursuant to the Commission's Rules of Procedure to respond to inquiries for consideration or to investigate complaints not dismissed pursuant to subsection A of this section. During its investigation, if the Commission discovers potential violations of the Code of Ethics not raised in the original complaint, it may amend the scope of the investigation and the subject of the investigation shall be notified of the additional possible violations as soon as practicable.
3. Findings: Within fourteen (14) days of the conclusion of its investigation and deliberations regarding a complaint, the Commission shall issue a confidential written recommendation to City Council containing its investigative findings. The Commission's recommendation shall include fact findings and a determination, with citation to specific provisions of the Code of Ethics, regarding whether or not by a preponderance of the evidence the Commission concludes one (1) or more violations of the Code of Ethics has occurred. The Commission's written recommendation to City Council is work product prepared for elected officials. Such work product is not a public record under the Colorado Open Records Act, Colorado Revised Statutes section 24-72-202(6)(b), as amended. Therefore, the Commission's deliberations and preparation of its confidential recommendation to City Council is not public business subject to the City's Open Meetings Law, adopted by City Charter section 3-60(d).
4. Council Procedures: Upon receipt of the Commission's recommendation, City Council may, by majority vote:
a. Issue a notice to proceed with those allegations of ethics violations which City Council determines, in its independent judgment, are appropriate, or issue a finding of no violation(s);
b. Accept the Commission's recommendation finding no violations of the Code of Ethics;
c. Refer the matter back to the Commission for further investigation;
d. Dismiss all or any part of the Commission's recommendation due to insufficient evidence to proceed if, in the opinion of City Council, the standard of proof is not met;
e. Dismiss all or any part of the Commission's recommendation because in the opinion of City Council, there is no substantial likelihood of success on the merits through an adversarial hearing;
f. Stay proceedings or dismiss all or any part of the Commission's recommendation after referring the matter for action by law enforcement, regulatory, or other authorities with jurisdiction over the matter; or
g. Dismiss all or any part of the Commission's recommendation in the interests of justice, including the presence of circumstances in which proceeding with the matter would be contrary to the interest of the City or the citizens.
City Council shall provide the accused party, the complaining party, the Commission, and the City Attorney's Office with written notice of its decision, including any notice to proceed with allegations of ethics violations issued by City Council.
5. City Council - Notice To Proceed With Allegations Of Ethics Violations/Mandatory Recusal:
a. If City Council elects to issue a notice to proceed with allegations of ethics violations based on the recommendation of the Commission, City Council will notify the accused party, the complaining party, the Commission, and the City Attorney's Office of the ethics charges in writing within seven (7) days after the decision is made.
b. The accused party shall be given fourteen (14) days to respond in writing to the City Attorney or designee and the City Council President either admitting the violations or requesting a public evidentiary hearing. City Council will consider the accused party's failure to respond within fourteen (14) days to be an admission and may then move to impose sanctions. The time for response may be extended or the matter may be reconsidered by City Council upon a showing of good cause for failure to timely respond. The City Council President may extend the deadline up to fifteen (15) days upon a showing of good cause. Any extensions beyond fifteen (15) days shall be approved by City Council upon a showing of good cause. A request for a public evidentiary hearing shall be handled pursuant to section 1.3.107 of this article.
c. If the accused party is a member of City Council, he/she is automatically recused from participating in the matter as a member of City Council and is required to refrain from voting on or taking any direct official action concerning the matter.
d. If the accused party is subject to a criminal investigation or a criminal charge is pending against the accused party and the investigation or charge is related to the conduct underlying the allegations of ethics violations, the accused party may submit a request to City Council to stay the proceedings until the conclusion of the investigation or criminal charges. City Council has sole discretion to stay the proceedings pursuant to a request under this subsection. City Council may resume the proceedings at any time.
D. Complaints Against Five Or More Members Of City Council:
1. Investigation: The Commission shall take such steps as necessary pursuant to the Commission's Rules of Procedure to investigate complaints alleged against five (5) or more members of City Council not dismissed pursuant to subsection A of this section. During its investigation, if the Commission discovers potential violations of the Code of Ethics not raised in the original complaint, it may amend the scope of the investigation and the subject of the investigation shall be notified of the additional possible violations as soon as practicable.
2. Findings: Within fourteen (14) days of the conclusion of its investigation and deliberations regarding a complaint, the Commission shall prepare a written decision containing its investigative findings. The Commission's decision shall include fact findings and a determination, with citation to specific provisions of the Code of Ethics, regarding whether or not by a preponderance of the evidence one (1) or more violations of the Code of Ethics has occurred.
a. The Commission's written decision shall be provided to the accused party, the complaining party, and the City Attorney's Office. A finding of no violations of the Code of Ethics shall be final agency action.
b. If the Commission finds one (1) or more violations of the Code of Ethics, it shall issue a notice to proceed with allegations of ethics violations. The Commission's written decision and notice to proceed with allegations of ethics violations shall be provided to the accused party, the complaining party, and the City Attorney's Office after the Commission finalizes its decision.
(1) Each accused party shall be given fourteen (14) days to respond in writing to the City Attorney or designee and the Commission either admitting the violations or requesting a public evidentiary hearing. The Commission will consider the accused party's failure to respond within fourteen (14) days to be an admission. If an accused party admits the violations or does not timely request an evidentiary hearing, the Commission may impose sanctions pursuant to section 1.3.108 of this article. The time for response may be extended or the matter may be reconsidered by the Commission upon a showing of good cause for failure to timely respond. The Commission will determine whether good cause exists. A request for a public evidentiary hearing shall be handled pursuant to section 1.3.107 of this article.
(2) If an accused party is subject to a criminal investigation or a criminal charge is pending against the accused party and the investigation or charge is related to the conduct underlying the allegations of ethics violations, the accused party may submit a request to the Commission to stay the proceedings until the conclusion of the investigation or criminal charges. The Commission has sole discretion to stay the proceedings pursuant to a request under this subsection. The Commission may resume the proceedings at any time. (Ord. 16-122)