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Sec. 24.26. Probable Cause Determination.
 
   (a)   Probable Cause Report.
 
   (1)   The Director of Enforcement must file a written probable cause report with the Executive Director to commence administrative enforcement proceedings.
 
   (A)   The probable cause report shall identify the alleged violations and contain a summary of law and evidence gathered through the investigation, including exculpatory and mitigating information of which the staff has knowledge, that is sufficient to justify the issuance of an accusation. The report may include hearsay, including declarations of investigators or others relating to the statements of witnesses or the physical evidence.
 
   (B)   After the probable cause report is submitted to the Executive Director, the respondent shall be served with the following:
 
   (i)   A copy of the probable cause report;
 
   (ii)   Notification that the respondent has the right to respond in writing to the probable cause report; and
 
   (iii)   Notification that the respondent has the right to request a probable cause conference, at which the respondent may be present in person and represented by legal counsel or another representative.
 
   (2)   A probable cause report may not be served to commence administrative enforcement proceedings more than four years after the date of an alleged violation. This four-year period is tolled for the following periods:
 
   (A)   If the respondent engaged in concealment or deceit, for the period of concealment or deceit. Concealment or deceit may occur as part of an alleged violation, such as with money laundering or the falsification of records, or may occur as conduct following a complaint.
 
   (B)   If the respondent fails to comply with a subpoena or subpoena duces tecum, from the date the compliance was originally required until the date compliance is achieved.
 
   (3)   A respondent may submit a written response to the probable cause report.
 
   (A)   The response may request a probable cause conference.
 
   (B)   A response, including a request for a probable cause conference, must be filed with the Executive Director and served on all other respondents listed in the probable cause report on the same day, and not later than 21 calendar days following service of the probable cause report.
 
   (4)   The Director of Enforcement may submit a rebuttal to the response. A rebuttal must be served on each respondent on the same day that it is filed with the Executive Director, and not later than ten calendar days following receipt of the response to the probable cause report.
 
   (b)   Probable Cause Conference.
 
   (1)   If requested by a respondent, a probable cause conference shall be held at a time and location and in a method fixed by the Executive Director.
 
   (A)   The probable cause conference shall be conducted informally by the Executive Director. Formal rules of evidence shall not apply.
 
   (B)   Notice of the date, time, location, and method of the conference shall be served on each respondent at least 14 calendar days before the conference.
 
   (2)   The probable cause conference shall be closed to the public unless a respondent otherwise requests and all other respondents agree to a public conference. If a conference is closed to the public, only Commission staff, respondents, and respondents' legal counsel or representatives have the right to attend.
 
   (3)   The Executive Director may allow witnesses to attend and participate in part or all of the probable cause conference, regardless of whether the conference is public. In making this determination, the Executive Director shall consider the relevancy of the proposed testimony, whether the witness has a substantial interest in the proceedings, and whether fairness requires that the witness be allowed to participate.
 
   (4)   The probable cause conference shall be recorded.
 
   (A)   The Commission shall retain the recording and provide a copy to each respondent.
 
   (B)   A respondent may ask that a certified court reporter attend and record the probable cause conference. That respondent shall provide copies of any transcript to the Executive Director and all other respondents. The cost of such a record shall be borne by the respondent requesting the record.
 
   (c)   Probable Cause Determination.
 
   (1)   The Executive Director shall make a written determination regarding probable cause.
 
   (A)   The determination shall be based solely on the probable cause report, any responses or rebuttals, and any arguments and evidence presented by the parties.
 
   (B)   The Executive Director may find there is probable cause to believe a violation has occurred only if the evidence is sufficient to lead a reasonable person to believe that a violation has been committed and that the respondent committed or caused the violation.
 
   (C)   A finding of probable cause by the Executive Director does not constitute a finding that a violation has actually occurred.
 
   (D)   The Executive Director shall not make a finding of probable cause if he or she is presented with clear and convincing evidence that, prior to the alleged violation, the respondent obtained formal advice under Charter Section 705(b) regarding the same facts, truthfully disclosed all material and pertinent facts, and acted in accordance with the formal advice.
 
   (2)   The Executive Director shall make the determination regarding probable cause within 45 calendar days after the later of the date the probable cause report was served, the date the probable cause conference was held, or the date the last pleading was received if no probable cause conference is held. The Executive Director shall not make a determination regarding probable cause before the respondent's deadline to respond to the probable cause report.
 
   (3)   The Executive Director shall serve notice of the determination regarding probable cause on each respondent and the Director of Enforcement within five calendar days of making the determination.
 
   (d)   Accusation and Announcement.
 
   (1)   If the Executive Director determines that probable cause exists, the Director of Enforcement shall prepare an accusation within 14 calendar days of being served with the determination of probable cause.
 
   (2)   The accusation shall clearly specify the provisions of law that were allegedly violated and set forth the acts or omissions with which the respondent is charged.
 
   (3)   The accusation shall be served on the respondent within ten calendar days of being completed.
 
   (4)   The Executive Director shall publicly announce the determination of probable cause no later than ten calendar days after service of the accusation, unless the parties stipulate to the entry of an order under Section 24.27(i)(2) during this time period.
 
   (A)   The announcement shall contain a summary of the allegations and a cautionary statement that the respondent is presumed to be innocent of any violation of the Charter or ordinances unless and until the violation is proved in a subsequent administrative hearing.
 
   (B)   The announcement shall not be made public until all respondents have been served with the accusation.
 
   (e)   Recusal of the Executive Director.
 
   (1)   If the Executive Director determines that he or she will be unavailable, cannot be fair and impartial, or for any other reason should not make the probable cause determination, the probable cause conference shall be conducted by a person selected by the Deputy Executive Director from a list of former Executive Directors, former members of the Commission, and current and former Ethics Officers.
 
   (A)   The person selected shall have the same authority as the Executive Director to conduct the probable cause conference and to make the determination of probable cause.
 
   (B)   The person selected is subject to the prohibitions in Charter Section 700(d) from the date of selection until the enforcement matter is resolved.
 
   (2)   A respondent may seek the recusal of the Executive Director by filing a written recusal request with the Executive Director within ten calendar days after being served with the probable cause report.
 
   (A)   The request shall state the reasons why the Executive Director cannot be fair and impartial with respect to a particular matter and should not make the probable cause determination.
 
   (B)   The Executive Director shall make a written determination regarding the request and serve the respondent with notice of the determination within seven calendar days.
 
   (C)   Failure to file the request with the Executive Director within ten calendar days after being served with the probable cause report waives all grounds for recusal.
 
   (D)   A petition for judicial review of a determination concerning recusal of the Executive Director must be filed with a court within ten calendar days following the date of notice of the determination.
 
   (E)   If the request is granted, the probable cause conference shall be conducted in the same manner as under Subdivision (1) above.
 
   (f)   The Executive Director may extend the time limits in this section for good cause.
 
   (g)   The Executive Director may permit or request any party to file additional material related to a probable cause determination and may specify a reasonable deadline for the filing.
 
SECTION HISTORY
 
Added by Ord. No. 182,907, Eff. 4-2-14.
Amended by: Ord. No. 185,034, Eff. 8-14-17.