§ 18361. 5. Administrative Hearings.
(a) Administrative Hearing Brief. Not later than one week prior to a contested
administrative hearing that is to be heard by the Commission itself, the Executive
Director shall and any respondent may submit to the Commission a written brief
describing the evidence to be presented at the hearing and outlining significant
legal arguments expected to be raised. Prior to the contested hearing, when
a brief is submitted by any party pursuant to this section, a copy shall be
provided to all other parties to the administrative action.
(b) Preliminary Matters and Hearing on Merits. If the Executive Director determines
that a hearing on the merits should be conducted before an administrative law
judge alone pursuant to Government Code section ll512(a), he or she shall provide
a copy of the accusation as well as a memorandum describing the issues involved
to each member of the Commission. If, at the next regularly scheduled meeting,
two or more Commissioners indicate a desire to participate in the hearing, the
matter will be scheduled for a hearing before the Commission when an administrative
law judge is available.
When the Commission decides to participate in a hearing on the merits, the Chairman
of the Commission may decide that any or all motions as to procedural matters,
validity or interpretation of the Political Reform Act, disqualification of
any member of the Commission, or any other matters not related to the truth
or falsity of the factual allegations in the accusation shall be heard by an
administrative law judge alone prior to the hearing on the merits. Any such
motions or matters shall be noticed in a timely fashion. Any person requesting
reconsideration by the Commission of any decision of the administrative law
judge shall submit, at least 14 days prior to the hearing on the merits, a written
request for reconsideration setting forth the reasons for the request and including
any appropriate points and authorities or affidavits.
(c) Standard of Proof. When an administrative hearing is conducted under Government
Code section 83116, findings shall be made on a preponderance of the evidence
and it shall require the concurrence of at least three members of the Commission
to find a violation or impose any order.
(d) Factors to be Considered by the Commission. In framing a proposed order
following a finding of a violation pursuant to Government Code section 83116,
the Commission and the administrative law judge shall consider all the surrounding
circumstances including but not limited to:
(1) The seriousness of the violation;
(2) The presence or absence of any intention to conceal, deceive or mislead;
(3) Whether the violation was deliberate, negligent or inadvertent;
(4) Whether the violator demonstrated good faith by consulting the Commission
staff or any other government agency in a manner not constituting a complete
defense under Government Code section 831l4(b);
(5) Whether the violation was isolated or part of a pattern and whether the
violator has a prior record of violations of the Political Reform Act or similar
laws; and
(6) Whether the violator, upon learning of a reporting violation, voluntarily
filed amendments to provide full disclosure.
(e) Stipulated Orders. At any time before or during an administrative hearing
and in lieu of such a hearing, the Executive Director and the person who is
the subject of the investigation may stipulate to the entry of an order. The
order must be approved by the Commission, which may consider the matter in executive
session. The stipulated order shall set forth the pertinent facts and may include
an agreement as to anything that could be ordered by the Commission under Government
Code section 83116. The stipulated order shall be released publicly and shall
have the force of an order of the Commission.
NOTE: Authority cited: Section 83112, Government Code.
Reference: Sections 83115, 83115.5 and 83116, Government Code.
History
(1) New section filed 3-15-94; operative 3-15-94.
(2) Renumbering of former section 18361.5 to section 18361.9 and new section
18361.5 filed 10-26-04; operative 11-25-04.