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iacia auaycu u i u ic wniNiau ii, k1X) Lfle fCSUUfC65 dfl(] p(IOfILBS OT If1B tif11CS uOfllflllSSlOf1; ana ~x) wne[ner tne responaent seit-
<br />reported the alleged conduct or sought an advisory opinion regarding it. c. Any settlement agreement approved by at least thr e
<br />members of the Ethics Commission will be a public record. However, all meetings held and documents relating to the settlem nt
<br />negotiations will be kept confidential, unless the parties agree otherwise. d. If a settlement agreement is breached by the
<br />respondent, the Ethics Commission may rescind the agreement and reinstitute the proceeding. However, no information obtai ed
<br />from the respondent in reaching the settlement, which is not otherwise discoverable, may be used in the proceeding.
<br />Comment: Most city and town ethics codes do not explicitly deal with settlement agreements, but most siate ethics codes do. The
<br />above language is based on that of several state ethics codes and rules, especially those of Ohio and Georgia. Settlements a e
<br />especially important because ethics commissions tend to have limited resources. In most cases, ihere is no need for lengthy
<br />investigations and hearings. And since the principle goal of ethics enforcement (as opposed to the criminal process) is to pro de
<br />guidance, a public setflement agreemenf that includes a reasonable penalty is more important than an expensive proceeding hat
<br />may or may not produce a more severe penalry. In fact, some states (and at least one city) make settlement the default or
<br />preferred approach. Arkansas' code requires a written Offer of Settlement when probable cause is found. Texas's code requir s
<br />that, upon a determination that there is credible evidence, the commission "resolve and settle the complaint or motion, to the
<br />extent possible. " Los Angeles delays public announcement of a finding of probable cause so that a settlement can be reache .
<br />Oregon's Administrative Rules "encourages the settlement of a case,"and Ohio's extensive settlement rules shows a propen ry
<br />for settlement. But most codes and rules do little more than mention the possibility of settlement, providing little guidance.
<br />Following are a few different approaches or considerations that 1 have found. Rhode Island explicitly refers to an informal
<br />conference between the executive director and the respondent to negotiate a settlement, as well as to a hearing of the
<br />commission to review ihe executive director's seKlement (in executive session). Alabama includes the Attorney General or Di trict
<br />Attorney in any settlement where they are involved, limiting settlement to `minor violations. " Ohio requires consultation with th
<br />complainants, and the commission may require the complainant to file an affidavit setting forth the allegations he or she want the
<br />commission to consider in settlement negotiations (and respondent is permitted to respond with an affidavit). Massachusetts
<br />provides three alternatives to a settlement agreement: (i) a compliance letter, which warns that fufure violations may be pursu d
<br />through a public proceeding in cases where the violation does not involve "willful misconduct, significant economic advantage ihe
<br />misuse of influence or confidential information, significant economic loss to the public, or the potential for serious impact on th
<br />public confidence in its officials"; (ii) a public educafional letter, which reviews the alleged violations for preventative and
<br />educational purposes, but assesses no civil penalry; and (iii) a public enforcement letter, where the respondent does not adm to
<br />a violation. Georgia similarly distinguishes beiween a settlemeni where the respondent admits or does not admit to a violation•
<br />penalties can be imposed only in the former case.
<br />6. If a sworn complaint is accepted or prepared pursuant to subsections 1 or 3, the Ethics Commission must conduct an
<br />investigation. From this point on, the complainant may not withdraw his or her complaint, although he or she may request that the
<br />Ethics Commission either make a finding of no probable cause or no viofation, or suggest a settlement with the respondent. I
<br />conducting such an investigation, the Ethics Commission may administer oaths or affirmations, subpoena witnesses, compel heir
<br />attendance, and require the production of any books or records it deems relevant and material. The Police Department and al city
<br />agencies, bodies, officials, and employees are required to respond fully and truthfully to ail enquiries and cooperate with ali
<br />requests of the Ethics Commission or its agents relating to an investigation. It is a violation of this code for any official or
<br />employee* to deny access to information requested by the Ethics Commission in the course of an investigation or a public
<br />hearing, except to the extent that such denial is required by federal, state, or local law.
<br />Comment: The reason complainants are not permitted to withdraw their complaints is to prevent respondents from pressurin
<br />them to do so. Once a possible violation has been brought to the Eihics Commission's attention, it is not a proceeding of
<br />complainant against respondent, but an ethics issue for the city to determine.
<br />Some cities mighi want to go beyond settlement at the complainant's suggestion to allowing the respondent a chance to admi and
<br />remedy violations of the code, either by providing a short period (up to two weeks) before the investigation begins, or 6y allo ng
<br />remedy during the invesiigation period itself. The Commission must determine whether any actions truly remedy the situation
<br />sufficiently that not even a reprimand is in order. In the alternative, a city might wani to allow the Commission to enter into
<br />settlement agreements with respondents, allowing for, say, a reprimand in return for remedying a violation, for example, by
<br />returning money, resigning from a board, making a formal apology, or changing the terms of a contract. lt should be recogniz d,
<br />however, that in many cases, it is too late for a remedy, because action has been taken thai cannot be undone.
<br />Please share your experiences with settlements and various sorts of reparations in municipal ethics cases, and what you thin of
<br />alternative approaches and provisions.
<br />The requirement of cooperation may also be placed among the ethics provisions, because cooperation is an ethical requirem nt,
<br />that is, another way in which government officials should put the public interest (investigating ethics violations) ahead of their
<br />personal interests (whatever they may be ihat might hinder the investigation). lt should appear or be referenced here, as well, as a
<br />signal to the Commission and others ihat such cooperation may be expected.
<br />7. The goal of the investigation is to determine whether there is probable cause to believe that a violation of this code has
<br />occurred. "Probable cause" means that there are reasonable grounds that a violation has occurred.
<br />Comment: "Preponderance of the evidence" is how this Model Code originally defined "probable cause," but this is the highe t
<br />burden associated with a finding of probable cause, so it has been lowered. The traditional, criminal law probable cause invol es
<br />a"fair probability" of criminal activity, which is much less than a preponderance of the evidence. As discussed in a City Ethics blag
<br />post, many jurisdictions don't even define "probable cause." I think it's very important to define it. "Reasonable grounds," like
<br />"sufficient evidence," means that there is reason to believe there was a violation, but before a hearing and full investigation, t ere
<br />is not evidence sufficient to make it more likely than not that a violation occurred.
<br />8. The respondent may file with the Ethics Commission a response to the complaint within thirty days after his or her receipt the
<br />complaint. The response, if any, must be sent to the complainant by the Ethics Commission within five days after its filing, an ,
<br />within fifteen days after receipt, the complainant may file with the Ethics Commission a response to the respondent's respons ,
<br />which the Ethics Commission must send to the respondent within five days after its filing.
<br />9. During the investigation period, the Ethics Commission may amend a complaint to include other violations which it reason ly
<br />suspects to have occurred. It must send a copy of any such amendment to the respondent and complainant within seven day
<br />after the amendment has been made.
<br />10. The investigation will be confidential unless the respondent requests that it be public or unless the respondent makes pub ic
<br />the fact of or any information concerning the proceeding. The respondent has the right to appear and be heard, and the
<br />complainant has the right to attend any such hearing and be heard.
<br />Comment: Confidentiality during an investigation is important to protect innocent respondents, as well as to depoliticize the
<br />process. Complaints are sometimes filed for the express purpose of embarrassing, harassing, or taking revenge on public off ials,
<br />often during an election season. No one can stop people from making public accusations, but sadly, when accusations beco e
<br />official proceedings, they are taken more seriously by the press as well as by city residents. It is important that the proceedin s
<br />themselves remain secret until a finding of probable cause has been made, and that an ethics commission be clear that even
<br />such a finding is far from an actual finding of a violation. It should be emphasized that confidentiality here refers solely to the
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