A. Any person who has knowledge of a violation of this Code of Ethics by a person other than an administrative employee under the supervision of the Mayor may make a signed written report of the same to the City Clerk. The fact that a report has been received, the contents of the report, and the identity of the person making the report shall remain confidential until such time as the Hearing Examiner has made an initial threshold determination that probable cause exists to believe that a violation of the Code of Ethics has occurred.
B. Upon receipt of a report, the Hearing Examiner, without benefit of subpoenas or sworn testimony, shall make such preliminary investigation as he or she deems appropriate to determine whether probable cause exists to believe that a violation of the Code of Ethics has occurred. Once the preliminary investigation is complete, the person accused shall be given the name(s) of the accuser(s) and the allegations whether or not the Hearing Examiner finds probable cause. If the Hearing Examiner is satisfied that probable cause does exist, he or she may choose between two (2) courses of action as follows:
1. Refer the matter to the proper authorities for criminal prosecution; provided, that upon a determination that the proof beyond a reasonable doubt necessary for criminal conviction is not available, the proper authorities may refer the matter back to the Hearing Examiner for proceedings consistent with the civil burden of proof (e.g., a simple preponderance of the evidence); or
2. Retain the matter for his or her own formal investigation with a view toward the ultimate disposition by the City Council in the event it is determined an actual violation has occurred.
C. If the Hearing Examiner should determine probable cause does not exist, he or she shall communicate his or her decision in writing to the person who made the initial report. The Hearing Examiner's determination of lack of probable cause shall remain confidential, unless the person who made the initial report chooses to make his or her complaint public. Should this latter event occur, all of the Hearing Examiner's records, files, notes, correspondence, and investigative materials relating to the finding of lack of probable cause shall be made open for public inspection.
D. Should the Hearing Examiner decide to retain the matter for his or her own formal investigation pursuant to subsection B2 of this section, the Hearing Examiner shall notify, in writing, the person who made the report and the person complained against, of his or her decision to pursue a formal investigation by way of holding a hearing to determine if a violation has occurred. The person complained against may choose whether the hearing shall be open or closed to the public.
E. Hearings conducted by the Hearing Examiner shall be informal. The person complained against may be represented by legal counsel and may present and cross examine witnesses and give evidence before the Hearing Examiner. The Hearing Examiner may call witnesses on his or her own motion and compel the production of books, records, papers, or other evidence needed. To that end, the proper authorities shall issue subpoenas and subpoenas duces tecum at the request of the Hearing Examiner or the person complained against. All testimony shall be under oath administered by the Hearing Examiner. The Hearing Examiner may adjourn the hearing from time to time in order to allow for the orderly presentation of evidence.
Upon motion made by the person complained against or upon his or her own motion, the Hearing Examiner may temporarily stay or permanently suspend his or her investigation when, in his or her formal discretion, the manifest needs of justice and fairness will be better served thereby.
The Hearing Examiner shall prepare an official record of the hearing, including all testimony, which shall be recorded by mechanical device, and exhibits; provided, that the Hearing Examiner shall not be required to transcribe such records unless presented with a request accompanied by payment of the cost of transcription.
F. Within thirty (30) days after the conclusion of the hearing, the Hearing Examiner shall, based upon a preponderance of the evidence, make and fully record in his or her permanent records, findings of fact, conclusions of law, and his or her determination of a recommended disposition. A copy of the findings, conclusions, and recommended disposition shall be forwarded by registered mail to the person who made the initial report and to the person complained against at addresses as given by both persons to the Hearing Examiner. An additional copy of the findings, conclusions, and recommendations shall be forwarded to the City Council for its formal action, if any.
G. Upon receipt of the Hearing Examiner's final action, the City Council shall schedule a public hearing. The person complained against shall have not less than two (2) weeks' written notice of this hearing. At this hearing the Hearing Examiner, the person complained against, and other interested parties shall be given a reasonable opportunity to be heard, following which the City Council may adopt, reject, amend, or modify the Hearing Examiner's findings, conclusions, and recommendations, or remand the matter for further investigation and consideration by the Hearing Examiner. The Council's decision shall be in writing, setting forth its findings, conclusions, and in appropriate cases, the civil sanction(s) imposed.
H. After a complaint has been filed and during the pendency of a complaint, members of the City Council shall not discuss, directly or indirectly, with any party or other person about any issue or fact or law regarding the complaint, except as part of the investigation or disposition of the complaint.
I. Neither the City nor any Representatives may take or threaten to take, directly or indirectly, official or personal action, including but not limited to discharge, discipline, personal attack, harassment, intimidation, or change in job, salary, responsibilities, against any person because that person filed a complaint. (Ord. 234, 12-20-2016; amd. Ord. 234A, 2-22-2021)