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Help & SupportChapter 13-4: Complaints Related to Election Procedures and Regulations16
The provisions of this chapter are intended to assist with the enforcement of the regulatory provisions of chapters 13-2, "Campaign Financing Disclosure," and 13-3, "Campaign Activities," B.R.C. 1981. The procedures set forth in this chapter are not exclusive and shall supplement other applicable enforcement provisions.
13-4-2 Allegation of Election Code Violation.
(a) A request for action stating that any provision of chapter 13-2, "Campaign Financing Disclosure" or chapter 13-3, "Campaign Activities," B.R.C. 1981, of this title has been violated may be submitted to the city clerk. The request for action shall be in writing and must be submitted no later than forty-five days following any election in which it is alleged that the misconduct occurred. The request for action shall:
(1) Request that the city attorney file a civil action;
(2) Identify the particular provisions of chapter 13-2, "Campaign Financing Disclosure," or 13-3, "Campaign Activities," B.R.C. 1981, that allegedly were violated;
(3) State the factual basis for that allegation;
(4) Identify any relevant documents or other evidence; and
(5) Identify any witnesses or persons with relevant knowledge.
(b) The city clerk will notify the party named in the request for action (the "respondent") and may provide the respondent an opportunity to provide information or otherwise respond to the allegations of the request for action.
13-4-3 Initial Review of Request for Action.
The city clerk will evaluate the request for action and all information in the clerk's possession related to the request for action to determine whether there is probable cause to believe that further investigation would disclose a violation by the respondent. The city clerk may, at the clerk's discretion, consult with the city attorney or delegated legal counsel regarding this review. Such determination shall be made based upon the request for action, any information provided by the person who filed the request for action or the party named in the request for action, and upon such additional information as the clerk may determine to be pertinent.
13-4-4 Denial of Request for Action by City Clerk.
If the city clerk determines that no probable cause exists that further investigation would disclose a violation by the respondent, the city clerk shall close the file with regard to the matter. In that event, the city clerk shall so notify both the complainant and the respondent. Such notice shall be sufficient if it is accomplished by depositing it with the United States Postal Service addressed to the last known address of the complainant and the respondent. The city clerk may also determine that the violation, if any, can be cured after exercise of the city manager's powers under chapter 13-2, "Campaign Financing Disclosure," B.R.C. 1981, and, if the violation is cured, may deny the request for action on that basis without further review.
13-4-5 Determination by City Clerk Final.
(a) A determination by the city clerk that there is no probable cause that further investigation would disclose a violation by the respondent shall be final. Cure of a violation through exercise of the city manager's powers under chapter 13-2, "Campaign Financing Disclosure," B.R.C. 1981, also shall be final. No appeal or review from such determinations shall be permitted, and the city attorney will not bring any civil or criminal enforcement action against a party in either circumstance.
(b) A determination by the city clerk that there is probable cause that investigation will disclose a violation by the respondent shall also be final. No defect in the city clerk's determination shall constitute a defense at any hearing held by a city clerk or at any judicial enforcement proceeding.
13-4-6 Power of City Clerk to Hold Hearings.
The city clerk is empowered to receive evidence and make recommendations with regard to any request for action. The purpose of such hearings will be to determine whether sufficient evidence of a violation by the respondent exists to warrant bringing a civil or criminal action. The city clerk may schedule hearings, mandate the appearance of witnesses through the issuance of subpoenas and mandate the provision of documents through the issuance of subpoenas for documents. Subpoenas for documents may be directed to any custodian of records or to any other person possessing or controlling such records.
The following procedures shall be used by the city clerk in any hearing:
(a) The city clerk shall fix the date, time, duration, and place of each hearing;
(b) The complainant and the respondent may each be represented by counsel or other authorized representative;
(c) The city clerk may receive and consider testimony under oath, as well as evidence of witnesses by affidavit, giving such evidence only such weight as seems proper after consideration of any objection made to its admission;
(d) The legal rules of evidence need not be strictly applied by the city clerk. The city clerk shall accept or reject evidence based upon the city clerk's evaluation of the reliability of that evidence; and
(e) The city clerk may refer to the provisions in chapter 1-3, "Quasi-Judicial Hearings," B.R.C. 1981, relating to quasi-judicial hearings, for guidance with respect to procedures that may be utilized at any hearing held pursuant to this section. However, final decisions regarding such procedures shall be determined by the city clerk in conformity with the intent of these provisions and in a manner consistent with general principles of due process.
13-4-8 Negative Determination by City Clerk.
If, upon completion of the city clerk's evaluation of evidence, the city clerk determines that there is insufficient evidence of a violation by the respondent to warrant bringing a civil or criminal action, the investigation shall be terminated concerning that respondent. In that event, the city clerk shall notify both the complainant and the respondent of this determination. Such notice shall be sufficient if it is deposited with the United States Postal Service addressed to the last known address of the complainant and the respondent.
13-4-9 Power of City Clerk to Issue Remedial Order or Warning Letter.
If, upon completion of the hearing process, the city clerk determines that sufficient evidence exists to bring a civil or criminal action, the city clerk may direct the respondent to take remedial actions including, without limitation, the following:
(a) Filing a corrected disclosure form;
(b) Publishing corrective advertising;
(c) Refunding any private contributions obtained under false pretenses; and
(d) Refunding to the city any public monies inappropriately obtained for the financing of election activities.
The city clerk may also issue the respondent a warning letter. The city attorney may bring a civil action following compliance with a remedial order as described in subsections (a) through (d) of this section for the purpose of incorporating the terms of the order into a consent decree. Otherwise, a warning letter or compliance by the respondent with a remedial order will end the process, and no civil or criminal action will be filed.
13-4-10 Referral to City Attorney for Criminal or Civil Prosecution.
If upon completion of the formal hearing process, the city clerk determines that sufficient evidence exists to bring a civil or criminal action and if the matter is not resolved through a warning letter or compliance with a remedial order issued by the city clerk, the matter shall be referred to the city attorney and delegated legal counsel. In such an instance, the city attorney or delegated legal counsel will evaluate the case to determine whether or not criminal prosecution or the bringing of a civil enforcement action is in the public interest.
13-4-11 Remedies Not Exclusive.
The procedures set forth by these provisions shall not impair the right of any interested party, including the city clerk, the city attorney, or a complainant, to notify the district attorney or the police of crimes that might be investigated or potentially prosecuted by those agencies. Nor shall these provisions preclude the city attorney from bringing criminal charges without first exhausting the administrative hearing process set forth in these provisions if the city attorney feels that there is sufficient basis for a criminal prosecution and that the interests of justice require prosecution prior to exhaustion of the administrative process described in these provisions.
13-4-12 No Appeal to City Council.
No decision by the city clerk made pursuant to this chapter shall be reviewed or reversed by the city council. The city council shall not become involved in the handling of any matter brought or investigated pursuant to these provisions. Nothing in this chapter shall be deemed to create a right of appeal to the city council by a person named in a request for action.
13-4-13 Confidentiality of Investigation.
The contents of files relating to pending inquiries or investigations into possible violations of the provisions of chapter 13-2, "Campaign Financing Disclosure," or 13-3, "Campaign Activities," B.R.C. 1981, shall not be made public by the city clerk, the city attorney, or by any other person or agency that is conducting an official investigation on the part of the city into alleged or possible violations of this type. Nor will any preliminary reports or drafts relating to the results of such investigations be made public. The city council finds that such disclosures could compromise criminal justice investigations. Further, the city council finds that such disclosures would be contrary to the public interest because such disclosures might have the effect of politically damaging a person or interest in a case in which the final disposition of an investigation would not sustain a finding of misconduct. The release of interim findings or draft reports might in that manner interfere with the appropriate workings of the democratic process.
16 Adopted by Ordinance No. 7214.