2008-11-12 Board of Ethics Minutes

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mandate that certain steps be taken, including giving formal notice to a respondent about the petition and hearing, and ensuring a respondent knows he has the right to confront and cross - examine witnesses, present evidence, and have an attorney present. Ms. Schoen further explained that the Board typically conducts hearings in an informal manner, and that in the past few years no request for a formal advisory opinion had been received. Most petitions are filed by employees or officers on their own behalf, in which they seek the Board's opinion as to whether there would be a conflict of interest with their outside employment, a contract they may have with another agency, or various other scenarios. The Board has existing rules that would apply to a formal hearing, however, and she had tried to figure out the best place to insert the rule on administrative fines. She wanted it clearly laid out for the members, since they had many questions about the informal and formal hearing process. A formal hearing would require that a respondent be afforded due process protections. For example, if the Board were to have found Mr. Perreira in violation of the Ethics Code at last month's hearing, no fine could have been imposed. This is because the proceeding held was informal and not conducted in a contested manner, and Mr. Perreira had not received notice by registered or certified mail. If, however, the Board decided during the hearing that the proceeding should be formal, a motion could have been made to convert the proceeding to a formal hearing. If the motion passed, the formal hearing would need to be held at a future date. Rule 6. Lb of the Board's rules deals with a formal hearing initiated by the Board. The Chair brought up another scenario: Earlier this year the Board reviewed whether a councilmember's use of his photograph on his letterhead violated the Ethics Code. If the Board had found that doing so violated the Ethics Code, it would have issued an informal advisory opinion to that effect.. If the councilmember continued using his photograph, the Chair asked whether the Board could bring him back in for a formal hearing. Ms. Schoen said yes, the Board itself could initiate a formal proceeding. Ms. Gentry said that the Board of Appeals conducts formal hearings in a contested manner on every petition that comes before it. Once a decision is made, the matter either goes to the next level or dies. Ms. Schoen explained, however, that informal hearings are provided for in the County Code and the Board's rules, although the procedure to conduct the hearings is not laid out. Ms. Nicholson asked for clarification on whether the Board would be locked into first having an informal hearing on a petition, or could opt to go directly to a formal hearing. Ms. Schoen said they would not be locked into having an informal hearing first. A respondent, upon receiving a petition, could request a formal investigation and hearing, and the Board would automatically move to the formal process. In another situation, the Board could inform a respondent that additional information is wanted. The respondent could come back with the additional information as well as an attorney, and the Board could decide that a formal hearing would be more appropriate. The parties would have to return on another date for the formal hearing. The rules also allow for Board - initiated formal hearings, so the Board could decide at the first hearing to continue the matter for a formal proceeding. This would require a motion, discussion, and majority vote during open session. 3