(a) Hearing Officer.
(1) After an accusation has been issued, an administrative hearing shall be conducted. The Director of Enforcement shall present to the members of the Commission the following options from which the members must select an administrative hearing officer:
(A) The members of the Commission may sit as the hearing officer, either with or without an individual hearing officer presiding;
(B) The members of the Commission may select an individual, who may be one member of the Commission, to sit as the hearing officer.
(2) If they elect to use an individual hearing officer, the members of the Commission shall appoint the individual. However, if they elect to use an individual hearing officer provided by an outside entity, that entity shall appoint the individual.
(3) The members of the Commission shall appoint an individual, who may be the individual hearing officer or a member of the Commission, to decide preliminary hearing matters and requests for reconsideration under Subsection (e). However, if the individual hearing officer is provided by an outside entity, that entity shall appoint the individual. The same individual may be appointed to decide both preliminary hearing matters and requests for reconsideration.
(b) Scheduling and Notice.
(1) The hearing officer shall schedule the administrative hearing and shall serve notice of the hearing on all respondents at least 21 calendar days prior to the scheduled hearing. If the hearing officer is one or more members of the Commission, the Executive Director may provide notice.
(2) The notice shall be in substantially the following form, but may contain additional information:
"A hearing regarding the charges made in the accusation against you will be held before the Los Angeles City Ethics Commission (or [name of individual hearing officer]) at [time] on [date], at [location]. You may be present at the hearing, may be represented by counsel, may present any relevant evidence, and will be given a full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses or the production of documents and records by applying in writing to the Ethics Commission (or [name of individual hearing officer])."
(c) Discovery.
(1) The parties shall be entitled to pre-hearing discovery of relevant, non-privileged records that are not confidential pursuant to City Charter Section 706.
(2) The person designated by the members of the Commission to resolve preliminary hearing matters shall resolve discovery disputes.
(3) The hearing officer may issue subpoenas and subpoenas duces tecum upon the request of any party.
(A) A party seeking a subpoena shall file a written request with the Executive Director, who shall promptly forward the request to the hearing officer.
(B) A request for a subpoena shall be accompanied by a declaration specifying the name and address of the witness and setting forth the materiality of the witness's testimony.
(C) A request for a subpoena duces tecum shall identify the requested documents or records with specificity, set forth the materiality of the items, and state that the witness possesses or controls the items.
(D) The hearing officer may deny a request after considering the relevancy of the evidence, privileges and confidentiality, the potential for the request to be unduly burdensome, and the overall interests of justice.
(E) The provisions of Section 24.24 apply, except that the Director of Enforcement's role shall be conducted by the hearing officer.
(F) The costs of a subpoena or subpoena duces tecum shall be borne by the party requesting it.
(d) Administrative Hearing Brief.
(1) The Director of Enforcement shall and any respondent may file with the hearing officer an administrative hearing brief that outlines significant legal arguments and evidence to be presented at the hearing.
(2) Briefs shall not exceed 25 pages in length, except by permission of the hearing officer and by a showing of good cause.
(3) A brief shall be filed with the hearing officer and all other parties to the administrative hearing at least seven calendar days prior to the hearing.
(4) An opposing party may file a written response to a brief. The response may not exceed ten pages in length except by permission of the hearing officer and by a showing of good cause. The response must be filed with the hearing officer and all other parties to the administrative hearing at least two calendar days prior to the hearing.
(e) Hearing on Preliminary Matters.
(1) The Director of Enforcement or any respondent may request a hearing on preliminary matters prior to the hearing on the merits. Preliminary matters may include, but are not limited to, the following:
(A) Procedural questions;
(B) The validity or interpretation of the applicable laws;
(C) The disqualification of a member of the Commission from participating as a hearing officer;
(D) Discovery; and
(E) Any other matter not related to the truth or falsity of the factual allegations in the accusation or to a possible penalty.
(2) Motions requesting a hearing on preliminary matters and on the matters themselves shall be filed at least 14 calendar days prior to the hearing on the merits. The preliminary hearing shall be conducted by the individual appointed to decide preliminary hearing matters under Subsection (a)(3).
(3) Any party may file a written request for reconsideration regarding any decision on preliminary matters with the individual appointed to decide requests for reconsideration under Subsection (a)(3).
(A) The request shall set forth the reasons for the request and any supporting legal arguments and affidavits.
(B) The request shall be filed at least seven calendar days prior to the administrative hearing on the merits.
(C) The individual appointed to decide the request for reconsideration, in the individual's discretion, may either reconsider a decision regarding a preliminary matter on its merits or deny a request for reconsideration. The individual need not determine whether a decision on preliminary matters was correct and need not give reasons for denying a request. The individual shall make a ruling and serve notice of the ruling on all parties within five calendar days of making the ruling.
(f) Procedural Issues.
(1) Any member of the Commission, the Executive Director, the secretary of the Commission, or an individual hearing officer may administer oaths and affirmations for an administrative hearing.
(2) All relevant, non-privileged evidence may be admissible in the administrative hearing.
(A) Each party shall have the right to call and examine all witnesses under oath or affirmation, to introduce exhibits, to cross-examine opposing witnesses on any relevant matter even if that matter was not covered in direct examination, to impeach any witness, and to rebut evidence presented against the party.
(B) Evidence may be excluded if its probative value is substantially outweighed by the probability that it will result in the undue consumption of time.
(C) The hearing officer shall rule on procedural matters and on the admission and exclusion of evidence.
(3) The hearing shall be recorded, and the recording shall be provided to the Commission. The Commission shall retain the recording and provide a copy to each respondent.
(4) Each respondent may ask that a certified court reporter or translator attend and record the hearing. The costs of such services shall be borne by the respondent requesting them. A respondent who uses a court reporter shall provide copies of the transcript to the Commission and all other parties.
(5) Each party shall be allowed oral argument of no more than 20 minutes.
(6) The hearing officer may extend the time limits in this section for good cause.
(g) Findings.
(1) A determination regarding findings shall be made only by a quorum of the Commission based on a preponderance of the evidence.
(A) The votes of at least three members are required to find a violation or remand the case to an individual hearing officer.
(B) Each member who participates in the determination shall certify that he or she either heard the testimony in person or reviewed the entire record of the proceedings.
(2) When an individual hearing officer alone hears a case, he or she shall make a recommendation regarding whether a violation occurred.
(A) The individual hearing officer shall provide a written report containing proposed findings of fact, conclusions of law, and a summary of the evidence supporting each proposed finding. A copy of the hearing officer's report shall be filed with the Executive Director and each respondent. The Executive Director shall provide copies to the members of the Commission.
(B) Within seven calendar days of the date the report is filed with the Executive Director, any party may file with the Executive Director a brief of no more than 15 pages in response to the report. The Executive Director shall provide copies to the members of the Commission.
(C) Based on the record of the proceedings, a quorum of the Commission shall make a final determination concerning whether a violation has occurred and may do so without further oral argument by the parties.
(D) If a quorum of the Commission determines that the individual hearing officer's report and the record of the proceedings are not sufficient to enable it to make a determination concerning whether a violation has occurred, it may remand the case to the individual hearing officer who heard the case or to a new hearing officer, with instructions for further proceedings.
(3) A determination by the Commission that a violation occurred shall be supported by the relevant facts and laws, shall be based on the entire record of the proceedings, and shall be incorporated into the order required by Subsection (i).
(4) If a quorum of the Commission determines that no violation occurred, staff shall publish a statement to that effect, in substantially the following form:
"On [date], the Los Angeles City Ethics Commission considered whether [name of respondent or respondents] had violated City law by [summary of allegations]. The Ethics Commission determined that no violation occurred."
(h) Penalties.
(1) Penalties may be imposed only by a quorum of the Commission, based on its determination under Subsection (g) regarding whether a violation occurred and on the arguments and evidence submitted by the parties regarding penalties.
(A) The votes of at least three members are required to impose penalties.
(B) The parties may submit arguments and evidence regarding penalties.
(i) Each party may file a brief that is no more than ten pages in length. The brief shall be filed with the Executive Director and all opposing parties at least 15 calendar days prior to the date the Commission will consider penalties. The Executive Director shall provide copies of any brief to the members of the Commission.
(ii) The members of the Commission may permit the parties to provide oral argument of no more than ten minutes each.
(2) In framing a penalty, the Commission shall consider the relevant circumstances surrounding the case, including but not limited to the following:
(A) The severity of the violation;
(B) Whether the violation was deliberate and whether the violator intended to conceal or deceive;
(C) Whether the violator demonstrated good faith by consulting the Commission staff in a manner not constituting a complete defense under Charter Section 705;
(D) Whether the violation was an isolated incident or part of a pattern, and whether the violator has a prior record of violations of the laws within the Commission's jurisdiction;
(E) The degree to which the violator cooperated with Commission staff in order to provide full disclosure, remedy a violation, or cooperate voluntarily with an investigation; and
(F) The overall interests of justice.
(3) If a quorum of the Commission imposes monetary penalties, the penalties must be paid in full within 21 calendar days after the date the order imposing the penalties issued under Subsection (i).
(A) If a party who is ordered to pay the penalties can demonstrate through documentary evidence that paying the total amount of the penalties within 21 calendar days poses a significant financial hardship, staff may recommend that a payment schedule be established by a quorum of the Commission. Any payment schedule must require payment in full within 12 calendar months after the date the order imposing the penalties is issued.
(B) If a party fails to pay penalties within 21 calendar days or, if a payment plan is established, fails to make a scheduled payment, the entire amount outstanding on the penalty shall become immediately due and payable in full.
(C) The Commission may pursue all available remedies to collect a penalty.
(i) Orders.
(1) Following the finding of a violation, the Commission shall issue a final verbal order that includes a summary of facts and the conclusions of law and, after considering the relevant circumstances in Subsection (h)(2), may impose penalties consistent with Charter Section 706(c). Staff shall prepare a written statement that is consistent with the order and signed by the president of the Commission or, if the president is required to be recused from the matter, by the vice president or another member in order of seniority.
(2) At any time before or during an administrative hearing or in lieu of such a hearing, the Director of Enforcement and any respondent may stipulate to the entry of an order.
(A) A stipulated order shall set forth the pertinent facts and may include an agreement as to anything that could be ordered by a quorum of the Commission.
(B) A stipulated order may resolve the violation only or both the violation and the penalty.
(C) A stipulated order has the full force of an order issued under paragraph (B) when it is approved by a quorum of the Commission.
(D) An agreement regarding a stipulated order suspends further procedural requirements regarding a probable cause hearing or an administrative hearing for that enforcement matter and tolls the statute of limitations.
(3) Enforcement orders shall be announced publicly.
SECTION HISTORY
Added by Ord. No. 182,907, Eff. 4-2-14.
Amended by: Ord. No. 185,034, Eff. 8-14-17.