A. Hearing Officer: If the accused party timely requests a hearing, as soon as practicable City Council or the Commission for complaints subject to subsection 1.3.106D of this article will select by a supermajority vote (65%) of the votes cast in a public meeting a Hearing Officer to conduct the proceedings. Any Hearing Officer selected shall be a Colorado licensed attorney in good standing.
B. Legal Representation: Subject to subsection 1.3.103G of this article, a member of the Prosecution Division of the City Attorneys' Office will prosecute the charges or, in the sole discretion of the City Attorney, the City Attorney may appoint another attorney in the City Attorney's Office or special counsel to prosecute the charges. The accused party is entitled to be represented by counsel at his or her expense or as provided in section 1.3.110 of this article.
C. Burden Of Proof: The prosecution bears the burden to establish, by clear and convincing evidence, the existence of a violation of the Code of Ethics.
D. Hearing Date: Within fourteen (14) days after selection of a Hearing Officer by City Council or the Commission for complaints subject to subsection 1.3.106D of this article, the Hearing Officer shall set the date for the hearing in the Hearing Officer's sole discretion, after making reasonable attempts to consult with the accused party and the prosecution. The hearing shall be set for the earliest practicable date, but in no event shall it be set earlier than sixty (60) days after receipt of the accused party's request for a hearing. The Hearing Officer may continue the hearing in his or her sole discretion and may grant a request for a continuance by the accused party or the prosecution for good cause.
E. Discovery: Within ten (10) days after issuance of notice to proceed with ethics allegations, the accused party and the prosecution shall be entitled to a copy of the Commission's investigation file, including the Commission's confidential recommendation or written decision. Within twenty (20) days after receipt of the notice of hearing date, the accused party and the prosecution shall exchange copies of all relevant documents and other tangible things within their possession, and a list, including any known contact information, of all persons who have relevant information or knowledge about the matter with a short statement regarding the relevant facts or opinions about which they have information or knowledge. Each party has an ongoing duty to supplement disclosures in a timely manner when additional information is received.
F. Subpoenas: At the request of the accused party, the prosecution, or in the Hearing Officer's discretion, the Hearing Officer shall have the power to subpoena documents and to subpoena witnesses to make statements and produce documents. Requests for subpoenas by the accused party or the prosecution must be submitted to the Hearing Officer no later than thirty (30) days prior to the hearing. Subpoenas must be served in accordance with the rules governing service followed by courts of general jurisdiction within the State of Colorado.
G. Witnesses And Exhibits: At least ten (10) days before the hearing, the parties shall exchange and submit to the Hearing Officer a proposed list of witnesses and a list of proposed exhibits to be introduced at the hearing, except for witnesses called or exhibits presented solely for rebuttal purposes. The Hearing Officer shall have the sole discretion to exclude any witness or exhibit disclosed to the opposing party fewer than ten (10) days prior to the hearing.
H. Hearing Presentation: The Hearing Officer shall have sole discretion to determine the hearing procedures. However, at a minimum, the hearing procedures shall include affording each side the opportunity to make opening statements and closing arguments, to call and cross examine witnesses, and to introduce evidence. Testimony by telephone/videophone may be permitted at the discretion of the Hearing Officer. All arrangements for taking of testimony by telephone or videophone shall be made by the party requesting the testimony, who shall be responsible for all costs associated with that testimony.
I. Hearing Matters/Evidence: The Hearing Officer shall determine all pre-hearing matters; preside over the hearing; administer oaths; and decide all points of order, procedure, and evidence. The hearing is an administrative hearing and, as such, need not be conducted according to the Colorado Rules of Civil Procedure or the Colorado Rules of Evidence. The Hearing Officer may admit any relevant evidence of probative value, including hearsay or unauthenticated documents, and may exclude or strike evidence that is incompetent, immaterial, irrelevant, cumulative, or unduly repetitious.
J. Record: An electronic or stenographic record of the hearing shall be made by the City as the official record of proceeding and retained with all exhibits admitted in the hearing in the Office of the City Clerk for no less than the time required by the applicable records retention schedule.
K. Hearing Officer Decision: The Hearing Officer will render a decision with findings of fact, a summary of the evidence supporting each finding, conclusions of law, a determination of whether or not the accused party violated the Code of Ethics, and a recommended sanction for each violation. In recommending a sanction, the Hearing Officer may consider the severity of the offense; the credibility of the witnesses and reliability of the evidence; the presence or absence of any intention to conceal, deceive, or mislead; whether the violation was deliberate, negligent, or inadvertent; and/or whether the incident was isolated or part of a pattern. The decision will be submitted to City Council, the accused party, the Commission, and the prosecutor within thirty (30) days after the hearing. The City Council President may extend this deadline up to thirty (30) days upon a showing of good cause. Any extension beyond thirty (30) days must be approved by City Council upon a showing of good cause. For complaints subject to subsection 1.3.106D of this article, the Hearing Officer may impose any recommended sanctions pursuant to section 1.3.108 of this article, which shall be final agency action.
L. Council Action - Complaints Not Subject To Subsection 1.3.106D:
1. As soon as practicable after receipt of the Hearing Officer's Decision, City Council shall, in a public meeting, adopt the Hearing Officer's Decision regarding whether or not the accused committed a violation of the Code of Ethics. City Council may impose sanctions pursuant to section 1.3.108 of this article. Council may affirm, reject, or modify the Hearing Officer's recommended sanction(s). City Council may consider, when imposing sanctions, the severity of the offense; the presence or absence of any intention to conceal, deceive, or mislead; whether the violation was deliberate, negligent, or inadvertent; and/or whether the incident was isolated or part of a pattern.
2. Adoption of the Hearing Officer's Decision regarding whether or not the accused committed a violation of the Code of Ethics and any sanctions imposed shall be expressed in a written resolution passed by City Council. City Council's resolution shall be final agency action. (Ord. 16-122)