2008-11-12 Board of Ethics Minutes

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Ms. Lum said it would be more appropriate for the Board to make the informal /formal decision on a case -by -case basis, as each petition arose. The Chair said a formal hearing should be conducted if the alleged ethical violation is serious. He asked whether both the petitioner and respondent have the option to request a formal hearing, and Ms. Schoen said only the respondent can. The Chair asked whether a respondent would be afforded representation by the Corporation Counsel in a formal setting. Ms. Schoen explained that the Corporation Counsel makes case -by -case determinations as to whether it will represent an officer or employee, and it depends on whether the officer or employee was acting in the course and scope of his or her employment when the alleged conduct occurred. If representation gets denied and the officer or employee hires an attorney, goes through the hearing and is found not to be in violation, the Council would be requested to reimburse the respondent's legal fees. Because of these various factors, the Board determined that its standard form letter to respondents should be changed, to explain the informal and formal hearing options and to have them designate a choice. Ms. Nicholson asked what difference it would make for the Board if they opted for a formal rather than informal hearing. Ms. Schoen said there would not be much difference for the Board members, but the clerical staff would have more work to do in terms of providing formal notice and possibly issuing subpoenas. In addition, the respondent would need to be informed of the provisions of Rule 6.2b, which includes the right to be heard, to subpoena witnesses and to require the production of records, to be represented by an attorney, and to cross - examination. If subpoenas were requested, the Chair would need to sign off on them. If the Board should decide during an informal hearing to pursue having a formal hearing, the staff would still need to inform the respondent of the Rule 6.2b provisions and would still need to send formal notice. To pursue a formal hearing would require a majority vote of the Board members. In last month's hearing regarding Mr. Perreira, if the Board had wanted more information from him, such as documentation of his work schedule, they could have requested it of him and continued the hearing as an informal or formal proceeding to the next meeting. The Chair asked whether the Board would be required to move a petition to a formal hearing and subpoena documents if a respondent refused to provide them. Ms. Schoen said no, that the Board has enough power through the chair to ask someone to come in and testify and give evidence. For example, if the Board wanted the fire chief to appear and verify information, they could ask him to do so and he would most likely comply. The Chair asked whether a separate hearing would need to be held if the Board wanted to issue a fine. Ms. Schoen said no, that the issuing of a fine could be incorporated into the Board's 11