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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 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 staff
  • 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
  • Consultants required to file Statements of Economic Interests

What is generally involved in an Ethics Commission investigation?

Ethics Commission staff interviews relevant witnesses and gathers relevant documents.

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 may be made public in connection with an administrative hearing, in documents memorializing a stipulated settlement, or if they are subject to a Public Records Act request and not protected under an exception to the disclosure laws.

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

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. Staff may interview other witnesses and/or review relevant documents before contacting you. When you are contacted, 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. Disclosing the name of a Complainant would have a chilling effect on others considering coming forward to report violations of the City's governmental ethics laws. Some complaints are made anonymously, and the Commission does not know the identity of the Complainant.

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

You will have an opportunity to communicate with Ethics Commission staff before the investigation is complete. Staff will carefully consider any information you provide that is relevant to the allegations. You will also have an opportunity to communicate with staff if the Commission schedules a probable cause hearing. Until that time, you may not communicate directly with staff or Commissioners. 

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. San Diego City Charter section 41.3 and San Diego Municipal Code section 26.0445 give the Executive Director the authority to issue subpoenas and subpoenas duces tecum. This means that if you do not cooperate, the Executive Director can obtain a court order to compel you to be interviewed and to produce the requested documents. Note, however, staff will always ask for your voluntary cooperation before the Executive Director issues a subpoena or subpoena duces tecum. Voluntary cooperation with an Ethics Commission investigation is a substantial factor in mitigation and will be taken into account by the Commission when considering an enforcement matter. On the other hand, a lack of cooperation will be a factor in aggravation.

Am I entitled to representation during an Ethics Commission investigation?

Yes. You may have a representative of your choice. This representative may be present during your interview and may serve as your representative if the Commission ultimately schedules a hearing.

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 staff. If the evidence suggests that you violated one or more provisions of the City's governmental 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 Commission in closed session. The Commission will either accept or reject it. Settlements are not final until approved by the Commission. If the 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 Commission in closed session that settlement negotiations were unsuccessful and ask the Commission to schedule a probable cause hearing (see additional discussion below).

If the evidence gathered during the staff investigation is insufficient to prove a violation of the City's governmental ethics laws, the Executive Director will present the results of the investigation to the Commission in closed session and, if the Commission agrees that you did not violate the City's laws, it will take no further action in the matter. The Executive Director will send you a letter explaining the Commission's decision.

The Commission may refer the matter to another agency. Thus, even if the Commission approves a settlement, it may also be decided that another agency should investigate matters discovered during the Commission's investigation. Similarly, even if the Commission decides to take no further action, 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. The Executive Director may serve as the Petitioner, and either one Commissioner or a group of three 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 Petitioner will present evidence to establish "probable cause" that you violated one of the City's governmental ethics laws. Note that "probable cause" is defined in the Municipal Code as "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 Petitioner presents their 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 determine whether there is probable cause to believe a violation of the City's governmental ethics laws has occurred. Neither you nor the Commission staff will be allowed to attend 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. If the Commission determines that probable cause exists, it will announce its decision 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 both parties presenting evidence to prove or disprove the allegations. The "presiding authority" will consist of a group of three Commissioners, the entire Commission, or an administrative law judge.

What happens after an administrative hearing?

The Commission will deliberate on the matter at a public meeting. 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 vote on whether you violated the City's governmental ethics laws. If the Commission determines that a law was violated, it may impose a variety of penalties, including an administrative fine of up to $15,000 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 90 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 a settlement. You should know, however, that preparations for hearings are a substantial drain on Commission resources. Accordingly, any delay in settling the matter may be reflected in the amount of the fine in a negotiated settlement.

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