(a) Definition. A vexatious complainant is someone who persistently files ethics complaints without having sufficient grounds for doing so. Vexatious complainants file complaints that:
(1) abuse the investigative process of the inspector general;
(2) harass, annoy, cause delay or detriment to a person subject to a complaint;
(3) are repeatedly baseless and without merit; or
(4) are filed for a political or other wrongful purpose.
(b) Report and recommendation of the inspector general. If the inspector general credibly suspects a person of being a vexatious complainant, the inspector general shall submit a report to the ethics advisory commission chair detailing the facts supporting the inspector general's position and requesting a hearing on the matter.
(c) Stay of complaints. Once the inspector general has submitted a vexatious complainant report to the ethics advisory commission, the inspector general shall not accept or process another complaint from the complainant until the commission has determined whether the complainant is a vexatious complainant.
(d) Notification. The inspector general shall promptly forward a copy of the report to the complainant with instructions detailing the response and hearing procedures.
(e) Response. The complainant shall have the opportunity to submit a sworn response, together with such other information the complainant believes is relevant. The response must be submitted to the inspector general within 10 days after the date that the complainant was sent the inspector general's report. Copies of all information provided to the inspector general by the complainant must be distributed to the ethics advisory commission within 10 days after the inspector general receives the information.
(f) Format of evidence. If a complainant submits evidence in an electronic, mechanical, or other format that the inspector general cannot duplicate or display, the inspector general shall request the complainant provide the evidence in a format that the inspector general can duplicate or display. If the complainant fails to provide the evidence to the city inspector general in a format that the inspector general can duplicate or display within seven days after the inspector general has made a request, then the evidence may not be presented to or considered by the ethics advisory commission when making its determination.
(g) Evidentiary hearing. The ethics advisory commission shall hold a hearing to determine whether the complainant is a vexatious complainant. Not less than 10 days before the hearing, the inspector general shall, by certified mail or personal service, give written notice to the complainant of the date, time, and place of the hearing. If the complainant consents in writing, the inspector general may give written notice by facsimile, email, or first class U.S. mail.
(h) Ex parte communications. It is a violation of this section for:
(1) the complainant, the inspector general, or any person acting on their behalf to engage or attempt to engage, directly or indirectly, in any ex parte communication about the subject matter of an evidentiary hearing under this section with any member of the ethics advisory commission; or
(2) a member of the ethics advisory commission to:
(A) knowingly entertain an ex parte communication prohibited by Subsection (h)(1); or
(B) knowingly communicate, directly or indirectly, with any person, other than a member of the commission, its staff, or its legal counsel, about any issue of fact or law relating to an evidentiary hearing under this section.
(i) Hearing procedures. Unless otherwise provided in this section, the procedures for hearings in Section 12A-53
apply to hearings conducted in accordance with this section.
(j) Rights of the complainant. The complainant has the right to attend the hearing, the right to make a statement, the right to present and cross-examine witnesses, and the right to be represented by legal counsel or another advisor.
(k) Standard of review. In determining whether a complainant is a vexatious complainant, the ethics advisory commission may consider the inspector general's report and additional evidence of:
(1) the timing of the complaints with respect to when the facts supporting the alleged violations became known or should have become known to the complainant;
(2) the nature and type of any publicity surrounding the filing of the complaints;
(3) the existence and nature of any relationship between the persons charged in the complaints and the complainant before the complaints were filed;
(4) whether the complainant knew or reasonably should have known that the allegations in the complaints were groundless or without merit; and
(5) the complainant's motives in filing the complaints, including whether or not the complaints were meant:
(A) to abuse the investigative process of the inspector general;
(B) to harass, annoy, cause delay or detriment to a person subject to a complaint; or
(C) for a political or other wrongful purpose.
(l) Determination. A determination that a complainant is a vexatious complainant may be made only upon an affirmative vote of three-fifths of all commission members present and voting. Otherwise, the complainant is not deemed a vexatious complainant. A finding that a complainant is vexatious must be supported by a preponderance of the evidence. The commission's determination that a complainant is not a vexatious complainant does not affect the prior decision of the inspector general to dismiss the complainant's prior complaints.
(m) Sanction for being deemed a vexatious complainant.
(1) If a complainant is determined to be a vexatious complainant, the ethics advisory commission may prohibit the complainant from filing another complaint alleging one or more violations of this chapter for up to:
(A) two years after the date of the commission's determination that the complainant is a vexatious complainant, if the commission had not determined within the preceding five years that the complainant was a vexatious complainant; or
(B) four years after the date of the commission's determination that the complainant is a vexatious complainant, if the commission had determined within the preceding five years that the complainant was a vexatious complainant.
(2) When determining whether and for how long to prohibit a complainant who has been deemed a vexatious complainant from filing another complaint under this chapter, the ethics advisory commission shall consider the following factors:
(A) The seriousness of the potential consequences to the persons charged in the groundless complaints and the extent and gravity of the abuse, harassment, and delay resulting from the filing of groundless complaints.
(B) The sanction necessary to deter future violations, including number of groundless complaints filed and whether there are any mitigating circumstances.
(C) Any other matters that justice may require.
(3) If the ethics advisory commission prohibits the complainant from filing another complaint for a specific amount of time under Subsection (m)(1), the inspector general shall not accept or process another complaint alleging one or more violations of this chapter from the complainant during the time that the complainant is prohibited from filing a complaint.
(4) The inspector general may notify the appropriate regulatory or supervisory agency of the findings and determination of the ethics advisory commission, including referring its findings and determination to a criminal investigation agency or prosecution entity for investigation of a violation of a state or federal law.
(n) Written decision. If the ethics advisory commission determines that a complainant is a vexatious complainant and imposes a sanction, it shall make all reasonable efforts to issue a written decision within 15 days after the hearing. The commission shall state its findings in the written decision.
(o) Notification. Within 10 days after issuing a written decision, the ethics advisory commission shall forward copies of the findings and decision to the complainant, the city attorney, the city secretary, the city council, and any member of the commission who did not participate in the disposition of the matter. The city secretary shall make copies of the findings and decision available to the public as authorized by law. (Ord. Nos. 29660; 32072
; 32472
)