§ 2-7-41. COMPLAINTS.

(A)

In this article:

(1)

COMPLAINANT means a person filing a sworn complaint.

(2)

RESPONDENT means a person who is alleged in a sworn complaint to have violated a provision within the jurisdiction of the Ethics Review Commission:

(3)

IDENTIFIED PERSON means a person, other than the respondent, who is identified by name in a sworn complaint as being involved in the alleged inappropriate conduct.

(B)

A complaint alleging a violation of a provision within the jurisdiction of the Ethics Review Commission shall specify each code section or charter provision alleged to have been violated. A complaint must state that the facts alleged are true and factual to the best knowledge of the person filing the complaint and be sworn to before a person authorized by law to administer an oath.

(C)

A complaint alleging a violation within the jurisdiction of the commission must be filed with the city clerk not later than the second anniversary of the date of the action alleged as a violation, and may not be filed afterward.

(D)

On the sworn complaint of any person filed with the city clerk's office or on the commission's own initiative, the commission shall consider possible violations of a provision within the jurisdiction of the commission by City officials and employees, former City officials and employees, candidates for election to City offices, and other persons subject to the provisions set forth in Section 2-7-26 ( Functions ). The commission may not consider complaints against its own members.

(E)

A complainant must disclose in the complaint filed with the commission evidence actually known to the complainant tending to negate guilt or mitigate the seriousness of the offense. Further, the complainant must disclose to the commission and the respondent any additional evidence discovered during the complaint process that negates guilt or mitigates the seriousness of the offense until the commission has taken final action on the complaint.

(F)

A city official or employee may not reveal information relating to the filing or processing of a complaint, except as required for the performance of the official's or employee's official duties, or as required by law. All papers and communications relating to a complaint must be treated as confidential unless required to be made public under the Public Information Act (Chapter 552 of the Texas Government Code ) or other applicable law. Investigations conducted by the Office of the City Auditor or any other City department must be conducted in a confidential manner and records of any such investigations are confidential to the extent permitted by law.

(G)

Not later than the fifth working day after the city clerk receives a sworn complaint, the city clerk shall acknowledge the receipt of the complaint to the complainant and provide a copy of the complaint to the city attorney, the chair of the commission, and the respondent. The city clerk shall also send a copy of the complaint to any identified person whose contact information is listed on the complaint form.

(H)

Not later than the fifth working day after receipt of a complaint from the city clerk, the chair of the commission shall make an initial determination as to whether the complaint is within the commission's jurisdiction.

(1)

If the chair determines that a complaint is within the commission's jurisdiction, the chair shall set the complaint for a preliminary hearing not later than the 60th day after the chair's initial determination, unless agreed to by the parties or by a vote of the commission. The commission may overturn the chair's initial jurisdictional determination at the preliminary hearing.

(a)

Not later than the 10th working day prior to the meeting, the chair shall cause a written notice of the date of the preliminary hearing to be sent to the complainant, the respondent, and any identified person whose contact information is listed on the complaint form or is reasonably ascertainable.

(b)

For good cause, the chair may postpone a scheduled preliminary hearing on the request of the complainant, the respondent, or an identified person.

(2)

If the chair determines that a complaint is not within the commission's jurisdiction, the commission shall review the chair's determination and may overturn the chair's determination.

(a)

Not later than the fifth working day after the chair determines that a complaint is not within the commission's jurisdiction, the chair shall cause a written notification of the initial determination to be sent to the complainant, the respondent, and any identified person whose contact information is listed on the complaint form or is reasonably ascertainable.

(b)

If the commission determines that a complaint is not within its jurisdiction, not later than the 10th working day after the commission's determination, the chair shall cause a written notification of the commission's final jurisdictional determination to be sent to the complainant, the respondent, and any identified person whose contact information is listed on the complaint form or is reasonably ascertainable.

(i)

If the commission determines that a complaint is not within the commission's jurisdiction, the commission may refer the complaint to the city auditor for possible investigation.

(ii)

If the commission refers a complaint to the city auditor under this subsection, the written notification required under subsection (F)(2)(b) shall state that the commission has referred the complaint to the city auditor for possible investigation.

(c)

If the commission overturns the chair's initial determination and determines that a complaint is within the commission's jurisdiction, the chair shall set the complaint for a preliminary hearing not later than the 60th day after the commission's determination, unless agreed to by the parties or by a vote of the commission. Subsection (F)(1)(a) and (b) shall govern the sending of notices and granting of postponements.

(I)

The commission may consider a possible violation of a provision within the jurisdiction of the commission on the commission's own initiative. Not later than the 10th working day after the commission's decision to consider a possible violation, the commission shall draft a written complaint specifying each code section or charter provision alleged to have been violated, shall file a copy of the complaint with the city clerk, and shall provide a copy of the complaint to the city attorney, the respondent, and any identified person whose contact information is obtained by the commission. A complaint initiated by the commission need not be sworn.

(1)

The chair shall set the complaint for preliminary hearing not later than the 60th day after the complaint is filed with the city clerk, unless agreed to by the respondent or by a vote of the commission.

(2)

Not later than the 10th working day prior to the meeting, the chair shall cause a written notice of the date of the preliminary hearing to be sent to the respondent and to any identified person whose contact information has been obtained by the commission.

(3)

For good cause, the chair may postpone a scheduled preliminary hearing under this subsection on the request of the respondent or an identified person.

(J)

A member of the commission may not take any part in a deliberation, vote, or decision regarding a sworn complaint alleging a violation by the council member that nominated the commission member.

Source: 1992 Code Section 2-3-41; Ord. 031204-9; Ord. 031211-11; Ord. 20120426-084; Ord. No. 20160922-005, Pt. 2, 6-1-17 ; Ord. No. 20170209-005 , Pt. 10, 2-20-17; Ord. No. 20170209-005 , Pt. 11, 6-1-17; Ord. No. 20180510-014 , Pt. 1, 5-21-18.