2.94.085 Conducting a board hearing on motions and a sufficient complaint.
A. Evidentiary Standard for Violation – Burden of Proof – Motions – Procedural Administrative Orders – No Appeal. The board shall find a violation of this ethics code, or of state ethical laws which apply to cities, only upon a preponderance of the evidence presented and admitted during a hearing on a sufficient complaint. The burden of proof shall be upon board counsel to prove a violation by a preponderance of the evidence. The board is authorized to conduct hearings on any motion from the parties or board counsel, including motions for summary judgment. The standard of proof for summary judgment shall be that used by the trials courts of this state under Civil Rule 45. The board is authorized to determine and establish by administrative order all necessary and appropriate procedural matters including, but not limited to, scheduling, hearing procedures and other administrative matters regarding a hearing. Any board administrative order shall not be subject to review or appeal.
B. Hearing – Time Periods – Tolling of Periods. The board shall conduct a hearing on a sufficient complaint or portion thereof which has not been otherwise disposed of as provided for in this chapter.The board shall begin a hearing no later than 15 working days after the final determination of sufficiency of the complaint unless a longer time period is requested by a party or board counsel, and approved by the board. The board shall render a final administrative order concluding the hearing no later than 90 calendar days after it begins the hearing unless a longer time period has been requested by the board and approved by the city council. However, the running of these two time periods shall be tolled and all proceedings of the board, or as may be applicable to the board counsel’s activities in LMC 2.94.080(B), on the complaint, shall be stayed:
1. During any period from when the board files with the council president an application to the city council for subpoena power to the time a council decision on the application is made;
2. During any period from when the board becomes aware that any person refuses to obey such subpoena and until such time as a superior court issues an order on the subpoena and such person complies with that court order;
3. During any period from the date an appeal is made to the board regarding board counsel’s administrative order of sufficiency until the board enters a final administrative order deciding the appeal;
4. During any period from the date a summary judgement motion is filed with the board until the board enters a final administrative order deciding the motion; or
5. During any period from the date a referral is made to a city or county prosecuting authority until a determination is made by each prosecuting authority that it will not proceed with a criminal prosecution concerning the matter(s) referred by the board or board counsel, or until a criminal proceeding is terminated or completed.
C. Board Administrative Order – Finality – Reconsideration – Recommendations. The board shall render an administrative order and decision setting forth its findings of fact and conclusions of law as to whether or not the individual against whom the complaint was made has violated the code. Its administrative order and decision shall become final 10 working days after its entry, unless a motion for reconsideration is filed. The administrative order may include recommendations for the improvement of the city’s ethics code as the board may in its discretion determine.
D. Subpoenas – Requests – Authority to Issue – Service. The city council may issue subpoenas on behalf of any party in response to board counsel’s or the board’s application (which each shall include any party’s requests and justification for subpoenas) for the attendance and testimony of witnesses, and the production of documentary evidence, at board counsel meetings of all parties, witness interviews, depositions, or hearings relating to any matter under investigation by board counsel or the board, or in connection with any hearing conducted by the board. Board counsel or the board shall request subpoena power by making a written application to the city council describing in detail the subject matter of the proposed subpoena and an explanation of why such information is reasonably necessary in order to conduct board counsel’s or the board’s investigation or hearing. The subpoena may be issued in the event the city council determines the subpoena request is reasonable. Board counsel shall be responsible to serve or mail all subpoenas authorized by the city council. In the event any person disobeys a subpoena, board counsel or the board may make a written application (which each shall include any party’s requests and justification for enforcement) to the city council to direct the city attorney to invoke the aid of any superior court of the state. Such court may issue an order requiring such person to appear before board counsel or the board, to produce documentary evidence, and/or to provide testimony, and any failure to obey such order may be punished by that court as contempt.
E. Right to Fully Participate. No administrative order may be issued by the board unless a person against whom a complaint was made has had a full opportunity to prepare for, and fully participate in, and present information, including affidavits in support or opposition to a motion before the board, and to cross-examine witnesses at the final hearing before the board on the merits of board counsel’s final administrative order on sufficiency.
F. Service of Administrative Order. A copy of the board’s administrative order shall be served or mailed to the city council, the individual against whom the complaint was made, and the complaining party within seven calendar days of the board’s presiding officer signing the order, unless a longer time period has been requested by the individual against whom the complaint was made, and has been approved by the board, or unless a longer time period has been requested by the board and has been approved by the city council. (Ord. 2493 § 4, 2004)