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B.R.C., 1981 TITLE 13 CHAPTER 4 COMPLAINTS RELATED TO ELECTION PROCEDURESChapter 4 Complaints Related to Election Procedures and Regulations~ 13-4-1 Legislative Intent The provisions of this chapter are intended to assist with the enforcement of the regulatory prowsions 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 prowsions. 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 allegetl that the misconduct occurred The request for action shall• (1) Request that the city attorney file a civil action, (2) Identify the particular prowsions of Chapter 13-2, "Campaign Finanang Disclosure" or Chapter 13-3, "Campaign Activities," B R C 1981, that allegedly were violated, (3) State the factual basis for that allegation, (4j Identify any relevant documents or other evidence, antl (5) Identify any witnesses or persons with relevant knowledge. (b) The city clerk will notify the party nametl in the request for action (the "respondenY') and may prowde 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 prowded 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 atldress 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 Finanang Disclosure," B R C 1981, and, if the wolation is cured, may deny the request for action on that basis without further review. 13-4-5 Determinatlon by City Clerk Final (a) A determination by the aty 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 aty manager's powers untler Chapter 13-2, "Campaign Financing Disclosure," 8 R C 1981, also shall be final No appeal or review from such determinations shall be permitted, antl the city attorney will not bring any avil 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 ~udicial 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 heanngs will be to determine whether suffiaent 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 prowsion 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 13-4-7 Hearing Procedures 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 authorizetl representative, (c) The city clerk may receive and consider testimony under oath, as well as ewdence of witnesses by affidavit, giwng such evidence only such weight as seems proper after consideration of any ob~ection made to its admission; (d) The legal rules of ewdence need not be strictly applied by the city clerk, The city clerk shall accept or re~ect evidence based upon the aty 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-~udicial 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 ewdence, 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 atldressed 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 aty 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) Refuntling any private contributions obtained under false pretenses, antl (d) Refunding to the aty any public monies inappropriately obtained for the financing of election actiwties The city clerk may also issue the respondent a warning letter. The city attorney may bring a civil action following compliance with a remetlial order as described in subsections (a) through (d) above 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 tletermines that sufficient ewdence exists to bring a ciwl or criminal action and if the matter is not resolved through a warning letter or compliance with a remetlial order issued by the city clerk, the matter shall be referred to the city attorney antl delegated legal counsel In such an instance, the city attorney or delegatetl legal counsel will evaluate the case to determine whether or not criminal prosecution or the bringing of a awl enforcement action is in the public interest 13-4-11 Remedies Not Exclusive The procedures set forth by these prowsions 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 prowsions if the city attorney feels that there is sufficient basis for a criminal prosecution and that the interests of justice requue prosecution prior to exhaustion of the administrative process tlescribed in these provisions 13-4-12 No Appeal to City Council No decision by the aty clerk made pursuant to this chapter shall be rewewed 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 prowsions 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 wolations of the provisions of Chapter 13-2, "Campaign Financing Disclosure" or Chapter 13-3, "Campaign Actiwties," 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 o~cial 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 ~ustice 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 woultl 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