§ 18361. Enforcement Proceedings.
(a) The staff, under the direction of the Executive Director, shall seek
to assure voluntary compliance with the Political Reform Act and shall investigate
possible violations of the Act. The staff shall make reasonable efforts to obtain
information on a voluntary basis prior to the issuance of an administrative
subpoena. The Executive Director, in the exercise of his or her discretion,
may forego this procedure with respect to an investigation in progress. The
staff shall periodically report to the members of the Commission on the status
of all investigations, including the reasons for the issuance of any administrative
subpoena without first making reasonable efforts to obtain the information voluntarily.
Failure to report to the Commission concerning the issuance of subpoenas shall
not affect the validity of any administrative subpoena.
(b) Memorandum Respecting Civil Litigation. If the Executive Director concludes
that the initiation of civil litigation should be considered, he or she shall
submit to the Commission a written memorandum which summarizes the facts and
the applicable law of the case and, if appropriate, recommends the initiation
of a lawsuit. Included in the memorandum shall be any exculpatory and mitigating
information known to the staff.
The Commission shall review the memorandum at an executive session. No member
of the staff shall be present unless the Commission concludes that the initiation
of probable cause proceedings pursuant to Government Code Section 83116 shall
not occur. If the Commission wishes the staff to answer questions, it may meet
with the staff in executive session for that limited purpose but shall not resume
its deliberations until the staff is no longer present. Any communication between
the Commission and the staff during the executive session shall be transcribed.
After review of the memorandum, the Commission may direct the Executive Director
to do any of the following:
(1) Initiate civil litigation;
(2) Decide whether probable cause proceedings should be commenced pursuant to
subsection (d) of this regulation;
(3) Return the matter to the staff for further investigation;
(4) Take no further action on the matter, unless the Executive Director indicates
that further investigation would be appropriate; or
(5) Take whatever other action it deems appropriate.
If the Executive Director deems it necessary, he or she may call a special meeting
of the Commission to review a staff memorandum recommending the initiation of
civil litigation.
It is the intent of the Commission in adopting this subsection to preserve for
the members of the Commission the authority to decide whether alleged violations
should be adjudicated in administrative hearings or in civil litigation, while
at the same time avoiding the possibility that discussions with the staff might
cause members of the Commission to prejudge a case that might be heard by the
Commission under Government Code Section 83116.
(c) Referral of Questions of Law to the Commission. If the Executive Director
or any Commissioner believes that an enforcement decision should not be made
until a question of law involving an interpretation of the Political Reform
Act is resolved, the Executive Director or any Commissioner may submit the question
to the entire Commission. The Commission shall consider the question in general
terms at a regular public session. Prior to resolving the question of law, the
Commission or the Executive Director may request the staff or any other interested
party to submit a legal analysis of the question of law.
(d) Probable Cause Proceedings.
(1) Probable Cause Report. If the Chief of the Enforcement Division decides
that probable cause proceedings should be commenced pursuant to Government Code
Sections 83115.5 and 83116, he or she shall direct the Enforcement staff to
prepare a written report, hereafter referred to as "the probable cause
report." The probable cause report shall contain a summary of the law and
evidence gathered in connection with the investigation, including any exculpatory
and mitigating information of which the staff has knowledge and any other relevant
material and arguments. The evidence recited in the probable cause report may
include hearsay, including declarations of investigators or others relating
the statements of witnesses or concerning the examination of physical evidence.
At least 21 days prior to any determination of probable cause, all proposed
respondents shall be provided with the following, by service of process or registered
mail with return receipt requested:
(A) A copy of the probable cause report;
(B) Notification that the proposed respondents have the right to respond in
writing to the probable cause report and to request a probable cause conference
at which the proposed respondent may be present in person and represented by
counsel, and;
(C) If the Commission met in executive session on this matter pursuant to subsection
(b) of this regulation, a copy of any staff memoranda submitted to the Commission
at that time along with the transcript of any discussion between the Commission
and the staff at the executive session.
(2) Response to Probable Cause Report. Each proposed respondent may submit a
written response to the probable cause report. The response may contain a summary
of evidence, legal arguments, and any mitigating or exculpatory information.
Each response must be filed with the Executive Director and provided by service
of process or by registered mail, return receipt requested, to all other proposed
respondents listed in the probable cause report not later than 21 days following
service of the probable cause report.
The Commission staff may submit any evidence or argument in rebuttal not later
than ten days following the filing of a response with the Executive Director.
The time limitations in this section may be extended by the Executive Director
for good cause. At any time prior to a determination of probable cause, the
Executive Director may allow additional material to be submitted as part of
the initial response or rebuttal.
(3) Probable Cause Conference. Any proposed respondent may request that a probable
cause conference be held. Such a request shall be served upon the Executive
Director and upon all other proposed respondents not later than 21 days after
service of the probable cause report unless the time is extended by the Executive
Director for good cause. The probable cause conference shall be at a time fixed
by the Executive Director and shall be conducted informally. The conference
shall be closed to the public unless a proposed respondent requests and all
other proposed respondents agree to a public conference. If the conference is
not public, only members of the Commission staff, any proposed respondent and
his or her legal counsel or representative shall have the right to be present
and participate. In the discretion of the Executive Director, witnesses may
be allowed to attend and participate in part or all of the probable cause conference.
In making this determination, the Executive Director shall consider the relevancy
of the witness' proposed testimony, whether the witness has a substantial interest
in the proceedings, and whether fairness requires that the witness be allowed
to participate. Representatives of any civil or criminal prosecutor with jurisdiction
may be present at the conference at the discretion of the Executive Director
if they agree to respect the confidential nature of the proceedings. Barring
objection by any of the parties and the presiding officer and provided it is
not open to the public, the conference may be conducted in whole or in part
by telephone.
The probable cause conference shall be tape recorded. The Executive Director
may make a determination as to probable cause based solely on the probable cause
report, any responses or rebuttals filed and any arguments presented at the
probable cause conference by the interested parties. If the Executive Director
determines that additional information is needed before probable cause can be
determined, he or she may permit any party to submit additional evidence at
the probable cause conference.
(4) Finding of Probable Cause. The Executive Director may find there is probable
cause to believe a violation has occurred if the evidence is sufficient to lead
a person of ordinary caution and prudence to believe or entertain a strong suspicion
that a proposed respondent committed or caused a violation. A finding of probable
cause by the Executive Director does not constitute a finding that a violation
has actually occurred.
The Executive Director shall not make a finding of probable cause if he or she
is presented with clear and convincing evidence that, at a time prior to the
alleged violation, the violator consulted with the staff of the Commission in
good faith, disclosed truthfully all the material facts, and committed the acts
complained of either in reliance on the advice of the staff or because of the
failure of the staff to provide advice.
If the Executive Director makes a finding of probable cause, he or she shall
cause an Accusation to be prepared pursuant to Government Code Section 11503
and shall cause it to be served upon the person or persons who are subjects
of the probable cause finding. The finding of probable cause shall be announced
publicly by the Executive Director. The announcement shall contain a summary
of the allegations and a cautionary statement that the respondent is presumed
to be innocent of any violation of the Act unless a violation is proved in a
subsequent proceeding. The Chief of the Enforcement Division shall be responsible
for insuring the presentation of the case in support of the Accusation at an
administrative hearing held pursuant to Government Code Section 83116.
(e) Administrative Hearings.
(1) 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 subsection, a copy shall
be provided to all other parties to the administrative action.
(2) 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.
(3) 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.
(4) 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:
(A) The seriousness of the violation;
(B) The presence or absence of any intention to conceal, deceive or mislead;
(C) Whether the violation was deliberate, negligent or inadvertent;
(D) 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);
(E) 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
(F) Whether the violator, upon learning of a reporting violation, voluntarily
filed amendments to provide full disclosure.
(5) 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.
(f) Prosecutors. The Executive Director may permit any civil or criminal prosecutor,
within the meaning of Government Code Sections 91001 and 91001.5, to present
a case for determination of probable cause under the procedures of this regulation
and to present such a case to the Commission at an administrative hearing if
probable cause is found. When the Executive Director authorizes such a presentation,
he or she may require that the prosecutor prepare the probable cause report
described in subsection (d)(l) of this regulation and present the case at any
probable cause conference or administrative hearing that is held.
(g) Notwithstanding 2 Cal. Adm. Code Section 18319:
(1) The Executive Director shall have the authority to issue subpoenas on behalf
of the Commission pursuant to Government Code Sections 83118 and 11510. The
Executive Director shall not authorize the issuance of a subpoena duces tecum
unless he or she finds, based on information submitted to him or her in writing,
that the information requested in the subpoena is material to a specific matter
then under investigation, and that there is reason to believe that the person
or entity to be subpoenaed has the desired information under their control.
The Executive Director may delegate in writing his or her authority under this
regulation to issue subpoenas only to the General Counsel or Chief of the Enforcement
Division and then only when the Executive Director believes he or she cannot
be fair or impartial with respect to a particular matter or when he or she will
be away from the offices of the Commission.
(2) The Executive Director may delegate in writing any other authority under
this regulation only to the General Counsel and then only when the Executive
Director believes he or she cannot be fair or impartial with respect to a particular
matter or when he or she will be away from the offices of the Commission.
(h) Inapplicability of This Regulation to Other Enforcement Procedures. None
of the procedures described in this regulation and none of the provisions of
Government Code Sections 83115.5 and 83116 need be followed in connection with
the disposition of any enforcement matter other than by way of an administrative
hearing conducted pursuant to Government Code Section 83116.
NOTE: Authority: Section 83112, Government Code.
Reference: Sections 83115, 83115.5 and 83116, Government Code.
History
(1) Amendment of subsections (e) and (f) filed 3 31 77 as an emergency; effective
upon filing. Certificate of Compliance included.
(2) Amendment filed 7 28 78; effective thirtieth day thereafter.
(3) New subsection (r) filed 11 2 78; effective thirtieth day thereafter.
(4) Amendment filed 6 21 79; effective thirtieth day thereafter.
(5) Amendment of section heading filed 10 29 81; effective thirtieth day thereafter.
(6) Amendment filed 7 14 83; effective thirtieth day thereafter.
(7) Repealer filed 10-26-04; operative 11-25-04.