Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Article 3, Chapter 13, Title 8 of the 1976 Code is amended by adding:
"Section 8-13-322. It is unlawful for the Governor, a member of the General Assembly, or anyone who is the subject of a pending investigation or open complaint, to contact or attempt to contact, either directly or indirectly, a member of the commission or a legislative ethics committee to influence or attempt to influence the outcome of a pending investigation or open complaint."
SECTION 2. Article 5, Chapter 13, title 8 of the 1976 Code is amended by adding:
"Section 8-13-535.
(A) The committee, may issue a formal
advisory opinion, based on real or hypothetical sets of
circumstances. In considering and formulating an advisory
opinion either legislative ethics committee shall consider its
previous opinions, the relevant opinions of the other
legislative ethics committee, as well as relevant opinions
issued by the commission in an attempt to create uniformity
among the bodies. A formal advisory opinion issued by the
committee is binding on the committee, until amended or revoked,
in any subsequent charges concerning the person who requested
the formal opinion and any other person who acted in reliance
upon it in good faith, unless material facts were omitted or
misstated by the person in the request for the opinion. A
formal advisory opinion must be in writing and is considered
rendered when approved by a majority of the committee members
subscribing to the advisory opinion. Advisory opinions must be
made available to the public unless the committee, by majority
vote of the total membership of the committee, requires an
opinion to remain confidential. However, the identities of the
parties involved must be withheld upon request.
(B) The appropriate
ethics committee only may issue formal advisory opinions for
public officials, public members, and public employees for which
it has proper jurisdiction to make findings of fact and impose
penalties pursuant to this chapter.
(C) The appropriate
ethics committee must consider whether a person relied in good
faith upon a formal advisory opinion or written informal staff
opinion when considering a finding of misconduct."
SECTION 3. Section 8-13-130 of the 1976 Code, as added by Act 353 of 2008, is further amended to read:
"Section 8-13-130
(A) The State Ethics
Commission, Senate Ethics Committee, and House of
Representatives Ethics Committee may levy an enforcement or
administrative fee on a person who is found in violation, or who
admits to a violation, of the "Ethics, Government
Accountability and Campaign Reform Act of 1991"
pursuant to Title 2 or Title 8. The fee must be used to
reimburse the commission, the appropriate legislative Ethics
Committee, or combination thereof, for costs associated with
the investigation and hearing of a violation. The costs
associated include:
(1)
the investigator's time;
(2)
mileage, meals, and lodging;
(3)
the prosecutor's time;
(4)
the hearing panel's travel, per diem, and meals;
(5)
administrative time;
(6)
subpoena costs to include witness fees and mileage; and
(7)
miscellaneous costs such as postage and supplies.
This fee is These fees and costs are in
addition to any fines as otherwise provided by law."
SECTION 4. Section 8-13-310 of the 1976 Code, as last amended by Act 279 of 2012, is further amended to read:
"Section 8-13-310.
(A) The State
Ethics Commission as constituted under law in effect before July
1, 1992, is reconstituted to continue in existence with the
appointment and qualification of the at-large members as
prescribed in this section and with the changes in duties and
powers as prescribed in this chapter. On July 1, 1993, when the
duties and powers given to the Secretary of State in Chapter 17
of Title 2 are transferred to the State Ethics Commission, the
Code Commissioner is directed to change all references to 'this
chapter' in Article 3 of Chapter 13 of Title 8 to 'this chapter
and Chapter 17 of Title 2'.
(B)(A)(1)
There is created the State Ethics Commission
composed of nine eight members who
must be appointed in the following manner:
(a)
four members must be appointed by the
Governor, upon the advice and consent of the General
Assembly. no more than two of whom are members of
the appointing Governor's political party;
(b)
two members must be selected by the Senate, one
upon the recommendation of the members of the majority political
party in the Senate and one upon the recommendation of the
members of the largest minority political party in the
Senate;
(c)
two members must be selected by the House of
Representatives, one upon the recommendation of the members of
the majority political party in the House and one upon the
recommendation of the members of the largest minority political
party in the House.
Each member must be appointed with the
advice and consent of the General Assembly. One
member shall represent each of the seven congressional
districts, and two members must be appointed from the State at
large.
(2)
The terms of the members serving on the State
Ethics Commission as of March 30, 2017, shall end on March 31,
2017. A member who is serving at that time and who has not
completed a full five-year term may be reappointed pursuant to
this subsection. The initial appointments for service to begin
on April 1, 2017, must be made as follows:
(a)
two members appointed by the Governor must be
appointed for a three-year term;
(b)
two members appointed by the Governor must be
appointed for a five-year term;
(c)
one member appointed by the Senate upon the
recommendation of the members of the majority political party in
the Senate shall serve a three-year term;
(d)
one member appointed by the Senate upon the
recommendation of the members of the largest minority political
party of the Senate must be appointed for a five-year term;
(e)
one member appointed by the House upon the
recommendation of the members of the majority political party of
the House of Representatives must be appointed for a five-year
term; and
(f)
one member appointed by the House upon the
recommendation of the members of the largest minority political
party of the House of Representatives must be appointed for a
three-year term.
The initial members who have served
terms that are less than five years are eligible to be
reappointed for one full five-year term.
(B)(1) In
addition to other information that may be requested, candidates
for appointment must provide the following information to the
appointing authority, which must be shared with the General
Assembly during the confirmation process:
(a)
The candidate's membership in any civic,
charitable, or social groups within the previous four years;
(b)
A contribution made by the candidate to a
candidate for Governor, the Lieutenant Governor, or a member of
the General Assembly within the previous four years; and
(c)
A contribution, as defined in 8-13-1300(9), made
by the candidate within the previous four years to a candidate
as defined in 8-13-100(5).
(2)
The appointing authorities shall make their
appointments based on merit. However, in making appointments to
the commission, the appointing authorities shall ensure that
race, color, gender, national origin, and other demographic
factors are considered to ensure the geographic and political
balance of the appointments, and shall strive to assure that the
membership of the commission will represent, to the greatest
extent possible, all segments of the population of the
State.
(3)
The following are not eligible to serve on the
State Ethics Commission:
(a)
a member of the General Assembly;
(b)
a former member of the General Assembly within
eight years following the termination of his service in the
General Assembly;
(c)
a family member, as defined by Section
8-13-100(15), of a member of the General Assembly or the
Governor, Lieutenant Governor or other statewide elected
official;
(d)
a person who made a campaign contribution, as
defined by Section 8-13-1300(7), within the previous four years
to the Governor who appointed the person to serve on the State
Ethics Commission, as well as that Governor's Lieutenant
Governor;
(e)
a person who registered as a lobbyist within
four years of being appointed to the State Ethics
Commission;
(f)
a person who is under the jurisdiction of the
State Ethics Commission, House of Representatives Ethics
Committee, or Senate Ethics Committee.
No member of the General Assembly
or other public official must be eligible to serve on the State
Ethics Commission.
The Governor shall make
the appointments based on merit regardless of race, color,
creed, or gender and shall strive to assure that the membership
of the commission is representative of all citizens of the State
of South Carolina. (C) The terms
of the members are for five years
and until their
successors are appointed and qualify. The members of the State
Ethics Commission serving on this chapter's effective date may
continue to serve until the expiration of their terms. These
members may then be appointed to serve one full five-year term
under the provisions of this chapter. Members representing the
first, third, and sixth congressional districts on this
chapter's effective date are eligible to be appointed for a full
five-year term in or after 1991. Members currently representing
the second, fourth, and fifth congressional districts on this
chapter's effective date are eligible to be appointed for a full
five-year term in or after 1993. The initial appointments for
the at large members of the commission created by this chapter
must be for a one-, two-, or three-year term, but these at-large
members are eligible subsequently for a full five-year term.
Under this section, the at-large members of the commission are
to be appointed to begin service on or after July 1,
1992. Vacancies must be filled in the manner of the
original appointment for the unexpired portion of the term only.
Members of the commission who serve less than a full
five-year term may be reappointed for one full five-year
term. Members of the commission who have completed a full
five-year term are not eligible for reappointment. A member
shall not serve on the commission in hold-over status after the
member's term expires. An appointee shall not serve on the
commission, even in interim capacity, until he has been
confirmed by the General Assembly.
(D) The commission
shall elect a chairman, vice-chairman, and such other officers
as it considers necessary. Five members of the
commission shall constitute a quorum. The commission
must shall adopt a policy concerning the
attendance of its members at commission meetings. The commission
meets at the call of the chairman or a majority of its members.
Members of the commission, while serving on business of the
commission, receive per diem, mileage, and subsistence as
provided by law for members of state boards, committees, and
commissions.
(E)(1) A
commission member appointed by the Governor may be removed from
office by the Governor for malfeasance, misfeasance,
incompetency, absenteeism, conflicts of interest, misconduct,
persistent neglect of duty in office, or incapacity pursuant to
Section 1-3-240.
(2)
A commission member appointed by the Senate may
be removed for malfeasance, misfeasance, incompetency,
absenteeism, conflicts of interest, misconduct, persistent
neglect of duty in office, or incapacity upon a vote of
two-thirds of the membership of the Senate.
(3)
A commission member appointed by the House of
Representatives may be removed for malfeasance, misfeasance,
incompetency, absenteeism, conflicts of interest, misconduct,
persistent neglect of duty in office, or incapacity upon a vote
of two-thirds of the membership of the House of
Representatives."
SECTION 5. Section 8-13-320(9) of the 1976 Code, as last amended by Act 245 of 2008, is further amended to read:
"(9) to initiate
or receive complaints and make investigations, as provided in
item (10), or as provided in Section 8-13-540, as
appropriate, of statements filed or allegedly failed to be
filed under pursuant to the provisions
of this chapter and Chapter 17, of Title
2 and, upon complaint by an individual, of an alleged violation
of this chapter or Chapter 17, of Title
2 by a public official, public member, or public employee
except members or staff, including staff elected to
serve as officers of or candidates for the General Assembly
unless otherwise provided for under House or Senate
rules. Any A person charged
with a violation of this chapter or Chapter 17,
of Title 2 is entitled to the administrative
hearing process contained in this section or in Article 5 of
this chapter, as appropriate.
(a)
The commission may commence an investigation on the filing
of a complaint by an individual or by the commission, as
provided in item (10)(d), upon a majority vote of the total
membership of the commission.
(b)(1)
No A complaint may not be
accepted by the commission concerning a candidate for elective
office during the fifty-day period before an election in which
he is a candidate. During this fifty-day period,
any a person may petition the court of
common pleas alleging the violations complained of and praying
for appropriate relief by way of mandamus or injunction, or
both. Within ten days, a rule to show cause hearing must be
held, and the court must either either
shall dismiss the petition or direct that a mandamus order
or an injunction, or both, be issued. A violation of this
chapter by a candidate during this fifty-day period must be
considered to be an irreparable injury for which no adequate
remedy at law exists. The institution of an action for
injunctive relief does not relieve any a
party to the proceeding from any penalty prescribed for
violations of this chapter. The court must
shall award reasonable attorneys fees and costs to the
nonpetitioning party if a petition for mandamus or injunctive
relief is dismissed based upon a finding that the:
(i)
petition is being presented for an improper purpose such
as harassment or to cause delay;
(ii)
claims, defenses, and other legal contentions are not
warranted by existing law or are based upon a frivolous argument
for the extension, modification, or reversal of existing law or
the establishment of new law; and
(iii)
allegations and other factual contentions do not have
evidentiary support or, if specifically so identified, are not
likely to have evidentiary support after reasonable opportunity
for further investigation or discovery.
(2)
Action on a complaint filed against a candidate which was
received more than fifty days before the election but which
cannot be disposed of or dismissed by the commission at least
thirty days before the election must be postponed until after
the election.
(c)
If an alleged violation is found to be groundless by the
commission, the entire matter must be stricken from public
record. If the commission finds that the complaining party
wilfully filed a groundless complaint, the finding must be
reported to the Attorney General. The wilful filing of a
groundless complaint is a misdemeanor and, upon conviction, a
person must be fined not more than one thousand dollars or
imprisoned not more than one year. In lieu of the criminal
penalty provided by this item, a civil penalty of not more than
one thousand dollars may be assessed against the complainant
upon proof, by a preponderance of the evidence, that the filing
of the complaint was wilful and without just cause or with
malice. In addition to any civil or criminal penalties, the
filer of the groundless complaint may be ordered to reimburse
the commission for the commission's costs associated with the
investigation and disposition of the complaint.
(d)
Action may not be taken on a complaint filed more than
four years after the violation is alleged to have occurred
unless a person, by fraud or other device, prevents discovery of
the violation. The Attorney General may initiate an action to
recover a fee, compensation, gift, or profit received by a
person as a result of a violation of the chapter no later than
one year after a determination by the commission that a
violation of this chapter has occurred;"
SECTION 6. Section 8-13-320(10)(d) of the 1976 Code is amended to read:
"(d) If the
commission, upon the receipt of any information, finds probable
cause to believe that a violation of the chapter has occurred,
it may, upon its own motion and an affirmative vote of
the majority of the total membership six or
more members of the commission, file a verified complaint,
in writing, that states the name of the person alleged to have
committed a violation of this chapter and the particulars of the
violation. The commission shall forward a copy of the complaint,
a general statement of the applicable law with respect to the
complaint, and a statement explaining the due process rights of
the respondent including, but not limited to, the right to
counsel to the respondent within ten days of the filing of the
complaint."
SECTION 7. Section 8-13-320(10)(g) of the 1976 Code, as last amended by Act 1 of 2011, is further amended to read:
"(g) All
investigations, inquiries, hearings, and accompanying documents
must remain are confidential and may
only be released pursuant to this section until a
finding of probable cause or dismissal unless the respondent
waives the right to confidentiality.
(i)
After a dismissal following a finding of
probable cause, except for dismissal pursuant to item (10)(b) or
a technical violation pursuant to Section 8-13-1170 or
8-13-1372, the following documents become public record: the
complaint, the response by the respondent, and the notice of
dismissal.
(ii)
After a finding of probable cause, except for a
technical violation pursuant to Section 8-13-1170 or 8-13-1372,
the following documents become public record: the complaint, the
response by the respondent, and the notice of hearing. If a
hearing is held on the matter, the final order and all exhibits
introduced at the hearing shall become public record upon
issuance of the final order by the commission. Exhibits
introduced must be redacted prior to release to exclude personal
information where the public disclosure would constitute an
unreasonable invasion of personal privacy. In the event a
hearing is not held on a matter after a finding of probable
cause, the final disposition of the matter becomes public
record.
The respondent or his counsel, by
written notice, may waive the confidentiality requirement. The
commission shall not accept any partial waivers. The wilful
release of confidential information is a misdemeanor, and
any a person releasing such
confidential information, upon conviction, must be fined not
more than one thousand dollars or imprisoned not more than one
year."
SECTION 8. Section 8-13-320(10)(i) of the 1976 Code is amended to read:
"(i) At the conclusion of its investigation, the commission staff, in a preliminary written decision with findings of fact and conclusions of law, must make a recommendation whether probable cause exists to believe that a violation of this chapter has occurred. If the commission determines that probable cause does not exist, it shall send a written decision with findings of fact and conclusions of law to the respondent and the complainant. If the commission determines, by an affirmative vote of six or more commission members, that there is probable cause to believe that a violation has been committed, its preliminary decision may contain an order setting forth a date for a hearing before a panel of three commissioners, selected at random, to determine whether a violation of the chapter has occurred. If the commission finds probable cause, by an affirmative vote of six or more commission members, to believe that a violation of this chapter has occurred, the commission may waive further proceedings if the respondent takes action to remedy or correct the alleged violation. Probable cause is a finding that the allegations contained in the complaint are more likely than not to have occurred and constitute a violation of this chapter or chapter 17, Title 2."
SECTION 9. Section 8-13-320(10)(j) of the 1976 Code is amended to read:
"(j) If a hearing
is to be held, the respondent must be allowed to examine and
make copies of all evidence in the commission's possession
relating to the charges. The same discovery techniques which are
available to the commission must be equally available to the
respondent, including the right to request the commission to
subpoena witnesses or materials and the right to conduct
depositions as prescribed by subitem (f). A panel of three
commissioners must conduct a hearing in accordance with Chapter
23, of Title 1 (Administrative
Procedures Act), except as otherwise expressly provided. Panel
action requires the participation of the three panel members.
During a commission panel hearing conducted to determine whether
a violation of the chapter has occurred, the respondent must be
afforded appropriate due process protections, including the
right to be represented by counsel, the right to call and
examine witnesses, the right to introduce exhibits, and the
right to cross-examine opposing witnesses. All evidence,
including records the commission considers, must be offered
fully and made a part of the record in the proceedings. The
hearings must be held in executive session unless the
respondent requests an open hearing open to the
public."
SECTION 10. Section 8-13-320(11) of the 1976 Code is amended to read:
"(11) to
issue, upon request from persons covered by this chapter, and
publish advisory opinions on the requirements of this chapter,
based on real or hypothetical sets of circumstances; provided,
that an opinion rendered by the commission, until amended or
revoked, is binding on the commission in any subsequent charges
concerning the person who requested the opinion and who acted in
reliance on it in good faith unless material facts were omitted
or misstated by the person in the request for the opinion.
Advisory opinions must be in writing and are considered rendered
when approved by five or more commission members subscribing to
the advisory opinion. Advisory opinions must be made available
to the public unless the commission, by majority vote of the
total membership of the commission, requires an opinion to
remain confidential. However, the identities of the parties
involved must be withheld upon request; (a)
The commission may issue a formal
advisory opinion, based on real or hypothetical sets of
circumstances. In considering and formulating an advisory
opinion, the commission shall consider its previous opinions as
well as relevant opinions issued by either legislative ethics
committee in an attempt to create uniformity among the bodies.
A formal advisory opinion issued by the commission is binding on
the commission, until amended or revoked, in any subsequent
charges concerning the person who requested the formal opinion
and any other person who acted in reliance upon it in good
faith, unless material facts were omitted or misstated by the
person in the request for the opinion. A formal advisory opinion
must be in writing and is considered rendered when approved by a
majority of the commission members subscribing to the advisory
opinion. Advisory opinions must be made available to the public
unless the commission, by majority vote of the total membership
of the commission, requires an opinion to remain confidential.
However, the identities of the parties involved must be withheld
upon request.
(b)
The commission only may issue formal advisory
opinions for public officials, public members, and public
employees for which it has proper jurisdiction to make findings
of fact and impose penalties pursuant to this chapter.
(c)
The commission must consider whether a person
relied in good faith upon a formal advisory opinion or written
informal staff opinion when considering a determination of
probable cause and when considering a finding of
misconduct."
SECTION 11. Section 8-13-530 of the 1976 Code, as last amended by Act 245 of 2008, is further amended to read:
"Section 8-13-530.
Each ethics committee shall:
(1) ascertain whether a
person has failed to comply fully and accurately with the
disclosure requirements of this chapter, which may include,
but is not limited to, an audit of filed reports and applicable
campaign bank statements, and to promptly notify the person
to file the necessary notices and reports to satisfy the
requirements of this chapter;
(2) receive complaints
filed by individuals and, upon a majority vote of the total
membership of the committee, file complaints when alleged
violations are identified;
(3) upon the filing of
a complaint, investigate possible violations of breach
of a privilege governing a member or staff of the appropriate
house, the alleged breach of a rule governing a member of,
legislative caucus committees for, or a candidate, or staff for
the appropriate house, misconduct of a member or staff of,
legislative caucus committees for, or a candidate for the
appropriate house, or a violation of this chapter or Chapter 17
of Title 2 alleging a violation by a member or staff
of the appropriate house, or a member or staff of a legislative
caucus committee, or a candidate for the appropriate house, for
a violation of this chapter or Chapter 17, Title 2, other than a
violation of a rule of the appropriate house, the ethics
committee shall refer the complaint to the State Ethics
Commission for an investigation pursuant to Section
8-13-540;
(4) receive,
investigate, and hear a complaint which alleges a
possible violation of a breach of a privilege or a
rule governing a member or staff of the appropriate house
or legislative caucus committee, or candidate for the
appropriate house, the alleged breach of a rule
governing a member or staff of or candidate for the appropriate
house, misconduct of a member or staff of or candidate for the
appropriate house, or a violation of this chapter or Chapter 17
of Title 2.;
(5)
no a complaint may not be
accepted by the ethics committee concerning a member of or
candidate for the appropriate house during the fifty-day period
before an election in which the member or candidate is a
candidate. During this fifty-day period, any
a person may petition the court of common pleas alleging
the violations complained of and praying for appropriate relief
by way of mandamus or injunction, or both. Within ten days, a
rule to show cause hearing must be held, and the court either
must dismiss the petition or direct that a mandamus order or an
injunction, or both, be issued. A violation of this chapter by a
candidate during this fifty-day period must be considered to be
an irreparable injury for which no adequate remedy at law
exists. The institution of an action for injunctive relief does
not relieve any party to the proceeding from any penalty
prescribed for violations of this chapter. The court must award
reasonable attorney's fees and costs to the nonpetitioning party
if a petition for mandamus or injunctive relief is dismissed
based upon a finding that the:
(i)
petition is being presented for an improper purpose such
as harassment or to cause delay;
(ii)
claims, defenses, and other legal contentions are not
warranted by existing law or are based upon a frivolous argument
for the extension, modification, or reversal of existing law or
the establishment of new law; and
(iii)
allegations and other factual contentions do not have
evidentiary support or, if specifically so identified, are not
likely to have evidentiary support after reasonable opportunity
for further investigation or discovery.
Action on a complaint filed against a
member or candidate which was received more than fifty days
before the election but which cannot be disposed of or dismissed
by the ethics committee at least thirty days before the election
must be postponed until after the election;
(5)(6)
obtain information, and
investigate technical violation complaints, and hear
complaints as provided in Section 8-13-540 with respect to any
complaint filed pursuant to this chapter or Chapter 17,
of Title 2 and to that end may compel by
subpoena issued by a majority vote of the committee the
attendance and testimony of witnesses and the production of
pertinent books and papers;
(6)(7)
administer or recommend sanctions appropriate to a
particular member, or staff of, or candidate
for, the appropriate house pursuant to Section
8-13-540, including the recovery of the value of anything
transferred or received in breach of the ethical standards,
or dismiss the charges; and
(7)(8)
act as an advisory body to the General Assembly and
to individual members of or candidates for the appropriate house
on questions pertaining to the disclosure and filing
requirements of members of or candidates for the appropriate
house, and may issue, upon request from a member or staff of
the appropriate house, or legislative caucus committee, or
candidate for the appropriate house, and publish advisory
opinions on the requirements of these chapters."
SECTION 12. Section 8-13-540 of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:
"Section 8-13-540.
Unless otherwise provided for by House or Senate
rule, as appropriate, each ethics committee must conduct its
investigation of a complaint filed pursuant to this chapter or
Chapter 17 of Title 2 in accordance with this section.
(1) When a
complaint is filed with or by the ethics committee, a copy must
promptly be sent to the person alleged to have committed the
violation. If the ethics committee determines the complaint does
not allege facts sufficient to constitute a violation, the
complaint must be dismissed and the complainant and respondent
notified. If the ethics committee finds that the complaining
party wilfully filed a groundless complaint, the finding must be
reported to appropriate law enforcement authorities. The wilful
filing of a groundless complaint is a misdemeanor and, upon
conviction, a person must be fined not more than one thousand
dollars or imprisoned not more than one year. In lieu of the
criminal penalty provided by this subsection, a civil penalty of
not more than one thousand dollars may be assessed against the
complainant upon proof, by a preponderance of the evidence, that
the filing of the complaint was wilful and without just cause or
with malice. If the ethics committee determines the complaint
alleges facts sufficient to constitute a violation, it shall
promptly investigate the alleged violation and may compel by
subpoena the attendance and testimony of witnesses and the
production of pertinent books and papers.
If after such preliminary
investigation, the ethics committee finds that probable cause
exists to support an alleged violation, it shall, as
appropriate:
(a)
render an advisory opinion to the respondent
and require the respondent's compliance within a reasonable
time; or
(b)
convene a formal hearing on the matter within
thirty days of the respondent's failure to comply with the
advisory opinion. All ethics committee investigations and
records relating to the preliminary investigation are
confidential. No complaint shall be accepted which is filed
later than four years after the alleged violation
occurred.
(2) If a
hearing is to be held, the respondent must be allowed to examine
and make copies of all evidence in the ethics committee's
possession relating to the charges. At the hearing the charged
party must be afforded appropriate due process protections,
including the right to be represented by counsel, the right to
call and examine witnesses, the right to introduce exhibits, and
the right to cross-examine opposing witnesses. All hearings must
be conducted in executive session.
(3) After the
hearing, the ethics committee shall determine its findings of
fact. If the ethics committee, based on competent and
substantial evidence, finds the respondent has violated this
chapter or Chapter 17 of Title 2, it shall:
(a)
administer a public or private reprimand;
(b)
determine that a technical violation as provided
for in Section 8-13-1170 has occurred;
(c)
recommend expulsion of the member; and/or,
(d)
in the case of an alleged criminal violation, refer
the matter to the Attorney General for investigation. The ethics
committee shall report its findings in writing to the Speaker of
the House or President Pro Tempore of the Senate, as
appropriate. The report must be accompanied by an order of
punishment and supported and signed by a majority of the ethics
committee members. If the ethics committee finds the respondent
has not violated a code or statutory provision, it shall dismiss
the charges.
(4) An
individual has ten days from the date of the notification of the
ethics committee's action to appeal the action to the full
legislative body.
(5) No ethics
committee member may participate in any matter in which he is
involved.
(6) The ethics
committee shall establish procedures which afford respondents
appropriate due process protections, including the right to be
represented by counsel, the right to call and examine witnesses,
the right to introduce exhibits, and the right to cross-examine
opposing witnesses. (A)(1)
A complaint alleging a member of the General Assembly,
legislative caucus committees, candidates for the General
Assembly, or staff of the General Assembly or legislative caucus
committee has committed a violation of this chapter or Chapter
17, Title 2 must be a verified complaint in writing and state
the name of the person alleged to have committed the violation
and the particulars of the violation.
(2)
When a complaint is filed with or by the ethics
committee alleging a violation of this chapter or Chapter 17,
Title 2, a copy must be sent to the person alleged to have
committed the violation and to the State Ethics Commission,
hereinafter referred to as 'the commission' within thirty days
from the date the complaint was filed, for an investigation as
provided in this section. However, if the complaint only alleges
a violation of a rule of the House of Representatives or of the
Senate, the appropriate ethics committee must forward a copy of
the complaint to the person alleged to have committed the
violation, and the appropriate ethics committee shall
investigate and make a determination for a complaint.
(3)(a)
The commission, upon receipt of information, may
initiate and file a complaint upon an affirmative vote of six or
more members of the commission. The commission shall accept
complaints referred by the ethics committees and verified
complaints from individuals, whether personally or on behalf of
an organization or governmental body.
(b)
The commission shall forward a copy of the
complaint, a general statement of the applicable law with
respect to the complaint, and a statement explaining the due
process rights of the respondent including, but not limited to,
the right to counsel to the respondent within ten days of the
filing of the complaint. Unless the complaint was referred by an
ethics committee, the commission shall send a copy of the
complaint to the appropriate ethics committee.
(4)
Action may not be taken on a complaint filed
more than four years after the violation is alleged to have
occurred unless the person alleged to have committed the
violation, by fraud or other device, prevents discovery of the
violation.
(B)(1) Upon
receiving a complaint filed pursuant to subsection (A), the
commission, its executive director, or other staff as designated
by the commission, must determine whether the complaint alleges
facts sufficient to constitute a violation of this chapter or
Chapter 17, Title 2. If the commission, its executive director,
or its other designated staff determines the complaint does not
allege facts sufficient to constitute a violation of this
chapter or Chapter 17, Title 2, the complaint must be dismissed.
If the commission, its executive director, or its designated
staff determines the complaint alleges facts sufficient to
constitute a violation, an investigation may be conducted of the
alleged violation.
(2)(a)
In conducting the investigation into the
allegations contained in a complaint, the Commission shall
request a response from the respondent to the complaint and
allow for thirty days from the date of the request for the
respondent to submit a response.
(b)
The Commission shall review any complaint,
investigation, and respondent's response to a complaint to
determine whether probable cause exists that a violation
occurred. A determination of probable cause is made upon an
affirmative vote of six or more commission members. Probable
cause is a finding that the allegations contained in the
complaint are more likely than not to have occurred and
constitute a violation of this chapter or chapter 17, Title
2.
(c)
If the commission does not find probable cause
that a violation occurred, the complaint must be dismissed. The
commission must notify the complainant, and respondent, and the
appropriate legislative ethics committee.
(d)
If the commission determines only a technical
violation pursuant to Section 8-13-1170 or 8-13-1372 occurred,
the complaint must be referred to the appropriate legislative
ethics committee for disposition.
(e)
If the commission finds that the complaining
party wilfully filed a groundless complaint, the finding must be
reported to the Attorney General. The wilful filing of a
groundless complaint is a misdemeanor and, upon conviction, the
person must be fined not more than one thousand dollars or
imprisoned not more than one year. In lieu of the criminal
penalty provided by this item, a civil penalty of not more than
one thousand dollars may be assessed against the complainant
upon proof by a preponderance of the evidence that the filing of
the complaint was wilful and without just cause or with malice.
In addition to any civil or criminal penalties, the filer of the
groundless complaint may be ordered to reimburse the commission
for the commission's costs associated with the investigation and
disposition of the complaint.
(f)
If the commission determines, by an affirmative
vote of six or more commission members that probable cause exist
that a violation of this chapter or Chapter 17, Title 2 has
occurred a further investigation may be conducted into the
alleged violation.
(3)
If the commission finds evidence that the person
alleged to have committed the violation wilfully violated a
section of this chapter or Chapter 17, Title 2 that imposes a
criminal penalty, the commission, when appropriate, may forward
the complaint and accompanying materials to the Attorney General
or circuit solicitor.
(4)
If the commission determines that it needs
assistance in conducting an investigation, the commission shall
request the assistance of appropriate agencies as needed, and
may hire or retain auditors, investigators, or other assistance
as necessary.
(5)
In conducting its investigation, the commission
may order testimony to be taken in any investigation or
deposition before a person who is designated by the commission
and has the power to administer oaths and, in these instances,
to compel testimony. The commission may administer oaths and
affirmation for the testimony of witnesses and issue subpoenas,
by approval of the chairman and subject to judicial enforcement,
for the procurement of witnesses and materials including books,
papers, records, documents, or other tangible objects relevant
to the agency's investigation. A person to whom a subpoena has
been issued may move before a commission panel or the commission
for an order quashing a subpoena issued pursuant to this
section.
(6)
Upon completing its investigation, the
commission must provide a report to the appropriate ethics
committee as to whether or not the commission found probable
cause that a violation of this chapter or of Chapter 17, Title 2
has occurred. A determination requires an affirmative vote by
six or more members of the commission. The report must include a
copy of all relevant reports, evidence, and testimony considered
by the commission.
(C)(1) All
investigations, inquiries, hearings and accompanying documents
are confidential and only may be released pursuant to this
section.
(2)
Upon a determination of probable cause by the
commission for a violation, other than a technical violation
pursuant to Section 8-13-1170 or 8-13-1372, the following
documents become public record: the complaint, the response by
the respondent, and the commission's determination of probable
cause. In addition, any documents in the commission's report
that substantiate the commission's determination of probable
cause that would constitute a public document and are not exempt
from disclosure under the Freedom of Information Act or other
state or federal law shall also become public record. These
documents must be redacted, as appropriate, in compliance with
state or federal law.
(D)(1)
Upon receipt of the Commission's report, the
appropriate ethics committee may concur or nonconcur with the
commission's determination, or within forty-five days from the
committee's receipt of the report, request the commission to
continue the investigation in order to review information
previously received or consider additional matters not
considered by the commission.
(2)
If, after reviewing the commission's
determination and relevant evidence, the ethics committee
determines that there is not competent and substantial evidence
a violation of this chapter or of Chapter 17, Title 2 has
occurred, the committee shall dismiss the complaint and send a
written decision to the respondent and the complainant. The
notice of dismissal must be made public if the commission made a
determination that probable cause existed.
(3)
If, after reviewing the commission's
determination and relevant evidence, the ethics committee
determines that the respondent has committed only a technical
violation pursuant to Section 8-13-1170 or 8-13-1372, the
provisions of the appropriate section apply.
(4)
If, after reviewing the commission's
determination and relevant evidence, the ethics committee
determines that there is competent and substantial evidence that
a violation of this chapter or of Chapter 17, Title 2 has
occurred, except for a technical violation of Section 8-13-1170
or Section 8-13-1372, the committee shall, as appropriate:
(a)
render an advisory opinion to the respondent and
require the respondent's compliance within a reasonable time;
or
(b)
convene a formal public hearing on the
matter.
The ethics committee may obtain its own
information, or request additional investigation by the State
Ethics Commission, if it needs additional information to make a
determination as to whether or not competent and substantial
evidence of a violation exists. An advisory opinion to the
respondent pursuant to subitem (a) must be made public.
(5)
If the ethics committee convenes a formal public
hearing:
(a)
the investigator or attorney handling the
investigation for the State Ethics Commission shall present the
evidence related to the complaint to the appropriate ethics
committee;
(b)
it is the duty of the investigator or attorney
to further investigate the subject of the complaint and any
related matters under the jurisdiction and at the direction of
the ethics committee, to request assistance from appropriate
state agencies as needed, to request authorization from the
committee for funds for the hiring of auditors, investigators,
or other assistance as necessary, to prepare subpoenas, and to
present evidence to the committee at any public hearing. The
appropriate committee shall maintain the authority to approve
subpoenas, authorize expenditures, dismiss complaints, schedule
hearings, grant continuances, and any other authority as
provided for by their rules;
(c)
the respondent must be allowed to examine and
make copies of all evidence in the ethics committee's possession
relating to the charges. At the hearing the respondent must be
afforded appropriate due process protections, including the
right to be represented by counsel, the right to call and
examine witnesses, the right to introduce exhibits, and the
right to cross-examine opposing witnesses.
(d)
all hearings must be open to the public.
(6)(a)
After the formal public hearing, the ethics
committee shall determine its findings of fact and issue its
final order.
(b)
If the ethics committee, based on competent and
substantial evidence, finds the respondent has not violated this
chapter or Chapter 17, Title 2, the committee shall dismiss the
complaint and send a written decision to the respondent and the
complainant.
(c)
If the ethics committee, based on competent and
substantial evidence, finds the respondent has violated this
chapter or Chapter 17, Title 2, the committee shall:
(i)
administer a public reprimand;
(ii)
determine that a technical violation as provided
for in Section 8-13-1170 or 8-13-1372 has occurred;
(iii)
require the respondent to pay a civil penalty
not to exceed two thousand dollars for each nontechnical
violation that is unrelated to the late filing of a required
statement or report or failure to file a required statement or
report;
(iv)
require the forfeiture of gifts, receipts, or
profits, or the value of each, obtained in violation of Chapter
13, Title 8 or Chapter 17, Title 2;
(v)
recommend expulsion of the member;
(vi)
provide a copy of the complaint and accompanying
materials to the Attorney General if the committee finds that
there is probable cause to believe the respondent wilfully
violated a section of this chapter or Chapter 17, Title 2 that
imposes a criminal penalty; or
(vii)
require a combination of subitems (i) through (vi) as
necessary and appropriate.
(d)
The ethics committee shall report its findings
in writing to the Speaker of the House of Representatives or
President Pro Tempore of the Senate, as appropriate. The report
must be accompanied by an order of punishment or dismissal and
supported and signed by a majority of the ethics committee
members.
(e)
Upon the issuance of the final order, the
following documents become public record: exhibits introduced at
the hearing, the committee's findings, and the final order.
Exhibits introduced must be redacted prior to release to exclude
personal information where the public disclosure would
constitute an unreasonable invasion of personal privacy.
(E) If, after
conducting a formal public hearing, the ethics committee finds
the respondent has violated this chapter or Chapter 17, Title 2,
the respondent has ten days from the date of receiving the
committee's order of punishment to appeal the action to the full
legislative body.
(F) No ethics
committee member may take part in consideration of any matter in
which they are the respondent, complainant, witness, or
otherwise involved.
(G) The
ethics committees shall establish procedures which afford
respondents appropriate due process protections, including the
right to be represented by counsel, the right to call and
examine witnesses, the right to introduce exhibits, and the
right to cross-examine opposing witnesses."
SECTION 13. Section 8-13-550(B) of the 1976 Code is amended to read:
"(B) Upon
consideration of an ethics committee report by the house or the
senate, whether in executive or open session, the results of the
consideration, except in the case of the issuance of a
private reprimand, are a matter of public record."
SECTION 14. Section 8-13-320(10)(b) of the 1976 Code is amended to read:
"(b)
If the commission, or its
executive director, or staff designated by the
commission, determines that the complaint does not allege
facts sufficient to constitute a violation, the commission must
dismiss the complaint and notify the complainant and respondent.
The entire matter must be stricken from public record unless the
respondent, by written authorization to the State Ethics
Commission, waives the confidentiality of the existence of the
complaint and authorizes the release of information about the
disposition of the complaint."
SECTION 15. Section 8-13-320(10)(c) of the 1976 Code is amended to read:
"(c) If the
commission, or its executive
director, or staff designated by the commission
determines that the complaint alleges facts sufficient to
constitute a violation, an investigation may be conducted of the
alleged violation."
SECTION 16. The provisions of this act are severable. If any section, subsection, paragraph, subparagraph, item, subitem, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of the act, the General Assembly hereby declaring that it would have passed each and every section, subsection, paragraph, subparagraph, item, subitem, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, items, subitems, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 17. The provisions of this act are effective as of April 1, 2017 and shall apply to complaints filed on or after April 1, 2017. However, the provisions in Section 8-13-310 regarding the selection of the initial members to serve on the State Ethics Commission as of April 1, 2017 and the termination of terms of the members serving on the commission as of March 31, 2017, take effect after the date of the Governor's signature for the limited purpose of having the initial members of the reconstituted State Ethics Commission begin service on April 1, 2017. The State Ethics Commission, House Ethics Committee and Senate Ethics Committee shall maintain jurisdiction over all open complaints and investigations pending in the appropriate entity on or before March 31, 2017. The reconstituted State Ethics Commission shall have jurisdiction over open complaints and investigations pending within the State Ethics Commission as of March 31, 2017." /
Renumber sections to conform.
Amend title to conform.