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What to Expect if You Are the Subject of an Ethics Commission Investigation

Who is subject to an Ethics Commission investigation?

The following types of individuals and entities may be the subject of an Ethics Commission investigation: City candidates; City ballot measure committees; committee treasurers; contributors to City candidates and/or ballot measure committees; entities that lobby the City; elected City officials and their staffs; unclassified (managerial level) City employees; employees of City agencies (Housing Commission and Convention Center Corporation) required to file Statements of Economic Interests; members of City boards and commissions required to file Statements of Economic Interests; and consultants required to file Statements of Economic Interests.

What is generally involved in an Ethics Commission investigation?

The Ethics Commission staff interviews relevant witnesses and gathers documents pertinent to the allegations.

Is an Ethics Commission investigation confidential?

Yes. Neither the Commissioners nor the staff will confirm the existence of an investigation or comment publicly on an ongoing investigation. After the investigation, however, certain aspects of the investigation may be made public in connection with an administrative hearing or in documents memorializing a stipulated settlement.

When will the Ethics Commission notify me that I am the subject of an investigation?

The Ethics Commission staff will notify you that you are the subject of an investigation at some point before the investigation is completed, either verbally or in writing. The staff may interview other witnesses and/or review relevant documents before contacting you. When you are contacted, the Ethics Commission staff will provide you with a general description of the allegations and identify the applicable provisions of the San Diego Municipal Code.

Will the Ethics Commission tell me who filed a complaint against me?

No. The Ethics Commission does not disclose the identity of complainants. Divulging the name of a complainant would have a chilling effect on others who are considering coming forward to report violations of the City's laws.

Will I have an opportunity to communicate with the Ethics Commission regarding the allegations?

You will have an opportunity to communicate with the Ethics Commission staff before an investigation is complete. The staff will carefully consider any information and/or documents you provide that are relevant to the allegations.

You will have an opportunity to communicate with the members of the Ethics Commission if the Commission schedules a Probable Cause Hearing. Until that time, however, you may not communicate directly with the Commission. The Commission does not discuss pending investigations during the open session portion of its meetings. Although the Commission may meet in closed session with its attorney to discuss the complaint against you, these sessions are not open to you or any other member of the public.

Am I required to cooperate with an Ethics Commission investigation?

Yes. The San Diego Municipal Code requires the production of documents to the Ethics Commission. In addition, the Ethics Commission has subpoena power and may compel you to produce documents or testify in person. Note, however, that Commission staff will always ask for your voluntary cooperation before asking the Ethics Commission to issue a subpoena. Voluntarily cooperating with an Ethics Commission investigation is a substantial factor in mitigation, and is something that the Ethics Commission will take into consideration when considering an enforcement matter. On the other hand, a lack of cooperation that results in the Commission issuing subpoenas will likely be considered a substantial factor in aggravation.

Am I entitled to representation during an Ethics Commission investigation?

Yes. You may have a representative of your choosing. This representative may be present at the time you are interviewed and may serve as your representative if the Commission ultimately schedules a hearing.

How long does an investigation take to complete?

The Ethics Commission staff will generally complete an investigation within three to six months, although some investigations will take as long as twelve months to complete.

What happens when an Ethics Commission investigation has been completed?

When the investigation is complete, the Executive Director will review the witness testimony and documents obtained by the staff. If the evidence suggests that you violated one or more provisions of the City's campaign laws, lobbying laws, or ethics laws, the Executive Director may contact you and propose a settlement that involves filing or amending documents, remedying the violation, and/or paying an administrative fine. If you agree to the terms of the settlement, the Executive Director will submit the proposed settlement to the Ethics Commission in closed session. At that time, the Commission will either accept or reject it. Settlements are not final until approved by the Ethics Commission. If the Ethics Commission approves a settlement, the related document (referred to as a "stipulation") will become a public record, and will be posted on the Commission's website.

If you and the Executive Director are unable to agree on the terms of a settlement, the Executive Director may advise the Ethics Commission in closed session that settlement negotiations were unsuccessful, and ask the Commission to schedule a Probable Cause Hearing (see additional discussion below).

If, on the other hand, the evidence gathered during the staff investigation suggests that you did not violate the City's laws, the Executive Director will present the results of the investigation to the Ethics Commission in closed session and, if the Commission agrees that you did not violate the City's laws, it will dismiss the matter. The Executive Director will send you a letter within five business days explaining the basis for the Commission's dismissal.

In addition to the foregoing, the Commission may also decide to refer the matter to another agency. Thus, even if the Commission approves a settlement, it may also decide that it is important for another agency to investigate something discovered during the course of the Commission's investigation. Similarly, even if the Commission decides that dismissal is appropriate, it may refer the matter to another agency.

What happens at a Probable Cause Hearing?

When the Commission schedules a Probable Cause Hearing, it will announce this action during the open session portion of a Commission meeting. This announcement will include your name as the subject of the proceeding and the sections of the Municipal Code allegedly violated, but will not include details regarding the allegations.

The Probable Cause Hearing will be closed to the public unless you request that it be open to the public. The Commission's Executive Director will serve as the "Petitioner" and either one Ethics Commissioner or a group of three Ethics Commissioners will serve as the "Presiding Authority." As the subject of the administrative proceeding, you would be referred to as the "Respondent."

At the hearing, the Executive Director will present evidence in an effort to establish that there is "probable cause" to believe that you violated one of the City's governmental ethics laws. Note that "probable cause" is defined in the Municipal Code to mean "evidence sufficient to lead a person of ordinary caution and prudence to believe or entertain a strong suspicion that a violation of governmental ethics laws has been committed." After the Executive Director presents his or her case, you will have an opportunity to present your case, including offering the testimony of witnesses and presenting written evidence.

What happens after a Probable Cause Hearing?

The Ethics Commission will meet in closed session and make a determination regarding whether there is probable cause to believe that a violation of the City's governmental ethics laws has taken place. Neither you nor the Commission staff will be allowed to be present during these closed session discussions. If the Commission determines that probable cause does not exist, the Executive Director will notify you of the Commission's decision within five business days. If the Commission determines that probable cause does exist, it will announce its determination in open session and schedule an Administrative Hearing. The announcement will include a summary of the allegations.

What happens at an Administrative Hearing?

An Administrative Hearing is open to the public and will generally involve the presentation of evidence by both parties to either prove or disprove the allegations. At the Administrative Hearing, the "Presiding Authority" will consist of a group of three Ethics Commissioners, the entire Ethics Commission, or an administrative law judge.

What happens after an Administrative Hearing?

The full Commission will deliberate on the matter in view of the public. If the administrative hearing was conducted by a panel of three Commissioners or an administrative law judge, the Commission will consider their written recommendation, and will ultimately vote on whether or not you violated the City's governmental ethics laws. If the Commission determines that the City's laws were violated, it may impose a variety of penalties, including an administrative fine up to $5,000 per violation.

What if I disagree with the Commission's decision?

You have the right to appeal the Commission's decision to the San Diego Superior Court within ninety days of the Commission's decision.

What if I change my mind and want to settle before the Commission makes a final decision?

If you are willing to consider settlement at any point, contact the Commission's Executive Director to discuss the details. It is never too late to discuss settlement. You should know, however, that preparations for hearings are a substantial drain on the limited resources of Commission and its staff. Accordingly, any delays in settling the matter may be reflected in the amount of the fine in a negotiated settlement.