Reference is to Printer's Date 5/7/14--H.
Amend the bill, as and if amended, by striking SECTIONS 1 through 5 and inserting:
/ SECTION 1. 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)
There is created the State Ethics Commission
composed of nine members appointed by the Governor, upon 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. 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 have completed
a full five-year term are not eligible for reappointment.
(D)
The commission shall elect a chairman, a
vice-chairman, and such other officers as it considers
necessary. Five members of the commission shall constitute a
quorum. The commission must 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 is provided by law for members of state boards,
committees, and commissions. (A)
There is created the State Ethics Commission composed
of the members provided for in this subsection:
(1)
four members must be appointed by the Governor,
no more than two of whom are members of the appointing
Governor's political party. Prior to serving on the commission,
each appointee shall sign an affidavit stating the length of
time he has been a registered voter in this State, with which
political party he is associated if any, that he is not nor has
been an officer or member of the executive committee of the
state or county party of the Governor, that he is not nor has
ever served as a poll watcher or precinct officer of the
Governor's party, and identify which primary elections he cast a
ballot within ten years immediately preceding the
appointment;
(2)
four members must be appointed by the Supreme
Court, each of whom must not be actively serving judges of any
court of this State, including summary court judges or retired
judges sitting or permitted to sit as judges in the courts of
this State.
(3)
two members must be appointed by the President
Pro Tempore of the Senate with one appointment in consultation
with the Senate Majority Leader and with one appointment in
consultation with the Senate Minority Leader of the largest
minority party, and upon confirmation by the Senate Ethics
Committee, unless otherwise provided for by the Rules of the
Senate; and
(4)
two members must be appointed by the Speaker of
the House of Representatives with one appointment in
consultation with the House Majority Leader and with one
appointment in consultation with the House Minority Leader of
the largest minority party, and upon confirmation by the House
of Representatives Ethics Committee, unless otherwise provided
for by the Rules of the House of Representatives.
(B) Upon
the nomination of candidates by the General Assembly for the
State Ethics Commission, the appropriate ethics committee shall
conduct an investigation and hold a public hearing to determine
the qualifications of each candidate for office. Any person who
desires to testify at the hearing, including candidates, shall
furnish a written statement of his proposed testimony to the
chairman of the committee. These statements must be furnished
no later than forty-eight hours prior to the date and time set
for the hearing. The committee shall determine the persons who
shall testify at the hearing. All testimony, including
documents furnished to the committee, must be submitted under
oath and persons knowingly furnishing false information either
orally or in writing are subject to the penalties provided by
law for perjury and false swearing. During the course of the
investigation, the committee may schedule an executive session
at which each candidate, and other persons whom the committee
wishes to interview, may be interviewed by the committee on
matters pertinent to the candidate's qualification for the
office to be filled. A reasonable time thereafter the committee
shall render its findings as to whether the candidate is
qualified for the office and whether the candidate has been
confirmed for the office for which he was nominated.
(C) As
soon as possible after the completion of the hearing, a verbatim
copy of the testimony, documents submitted at the hearing, and
findings of fact must be made available to the members of both
houses and to the public.
(D)(1)
The qualifications the appointing authorities shall
consider for the appointees include, but are not limited to:
(a)
constitutional qualifications;
(b)
ethical fitness;
(c)
character;
(d)
mental stability;
(e)
experience;
(f)
temperament; and
(g)
if the appointee has contributed to the election
campaign of the individual appointing him to the State Ethics
Commission within the previous four years.
(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 represents, to the greatest extent
possible, all segments of the population of this 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, the Governor,
or any member of the Supreme Court;
(d)
a person who made a campaign contribution, as
defined by Section 8-13-1300(7), within the previous four years
to the individual who appointed the person to serve on the State
Ethics Commission;
(e)
a person who registered as a lobbyist within
four years of being appointed to serve on 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; and
(g)
an actively serving judge of any court of this
State, including summary court judges, and any retired judge
sitting or permitted to sit in any court of this State.
(E) The
terms of the members are for five years. The terms of the
members currently serving expire on June 30, 2015; however, a
member who is serving at that time may be appointed for a new
five-year term. For the initial appointments made by the
Governor, two must be for a term of two years, the third must be
for a term of four years, and the fourth must be for a full
five-year term. For the initial appointments made by the
Speaker of the House of Representatives and the President Pro
Tempore of the Senate, one must be for a three-year term and the
other must be for a full five-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. Vacancies must
be filled in the manner of the original appointment for the
unexpired portion of the term only. Members of the commission
who have completed a full five-year term are not eligible for
reappointment and shall not serve on the commission after their
term expires.
(F) The
commission shall elect a chairman, a vice chairman, and such
other officers as it considers necessary. Five members of the
commission constitutes a quorum. The commission 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 is provided by law for members of
state boards, committees, and commissions.
(G)(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 President
Pro Tempore of the Senate or the Speaker of 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
finding by two-thirds of the membership of the appropriate
body."
SECTION 2. A. The first paragraph of Section 8-13-320(9) of the 1976 Code of Laws, 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), of statements filed or allegedly failed to be filed
under 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 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."
B. 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
until a finding of probable cause or dismissal unless
the respondent waives the right to confidentiality
and only may be released pursuant to this subsection.
After a finding of probable cause by a majority of the
commission, the following documents become public record: the
complaint, the response by the respondent, and the notice of
hearing, exhibits introduced at a hearing, the commission'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. The respondent may waive the right to
confidentiality. The willful wilful
release of confidential information is a misdemeanor, and any
person releasing confidential information, upon conviction, must
be fined not more than one thousand dollars or imprisoned not
more than one year."
C. 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."
D. Section 8-13-320(11)
of the 1976 Code amended to read:
"(11)(a) to
issue, upon request from persons covered by this chapter, and
publish formal advisory opinions on the requirements of
this chapter, based on real or hypothetical sets of
circumstances; provided, that an opinion rendered by the
commission or an opinion issued by the commission prior to
the effective date of this act, 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.
Formal advisory opinions must be in writing and are
considered rendered when approved by five or
more 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 State Ethics Commission may issue a written
informal advisory opinion, based on real or hypothetical sets of
circumstances, to a person or governmental entity within the
commission's jurisdiction upon that person's or governmental
entity's request. If raised in response to a complaint, the
commission shall consider whether the person who requested the
opinion or who is a member of the governmental entity who
requested the informal opinion and who is affected by the
circumstances described within the request for the informal
opinion, relied in good faith upon on a written informal opinion
prior to making a probable cause determination. A written
informal advisory opinion is binding on the State Ethics
Commission, until amended or revoked, in any subsequent charges
concerning the person who either requested the informal opinion
or a member of the governmental entity who requested the
informal opinion and who is affected by the circumstances
described within the request for the informal opinion unless
material facts were omitted or misstated by the person in the
request for the opinion."
E. Section 8-13-320 of the 1976 Code, as last amended by Act 1 of 2011, is further amended by adding appropriately numbered items to read:
"( ) to
initiate upon the vote of a majority of the membership, and to
receive complaints against a member or staff of the appropriate
house or legislative caucus committee, or a candidate for the
appropriate house, alleging a violation of this chapter or
Chapter 17, Title 2 and to conduct an investigation into the
complaint pursuant to Section 8-13-540;
( ) to initiate upon
the vote of a majority of the membership, and to receive
complaints against judges and other judicial officials of the
unified judicial system and their staffs whose conduct is now
regulated and supervised by the Commission on Judicial Conduct
as governed by the Supreme Court and to conduct an investigation
into the complaint pursuant to Article 6, Chapter 13 of this
title;
( ) to provide a copy
of the complaint and accompanying materials to the Attorney
General if the commission finds that there is probable cause to
support the existence of criminal intent on the part of the
respondent when the violation occurred."
SECTION 3. Article 5, Chapter 13, Title 8 of the 1976 Code is amended by adding:
"Section 8-13-515. The General Assembly recognizes that the authority of each house to punish its members for disorderly behavior pursuant to Section 12, Article III of the South Carolina Constitution is not limited to violations of this chapter and Chapter 17, Title 2 and specifically includes any conduct the house determines to constitute disorderly behavior."
SECTION 4. 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 and 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 a rule or
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. Upon the filing of a
complaint alleging a violation by a member or staff of the
appropriate house or legislative caucus committee, or a
candidate for the appropriate house, for a violation of this
chapter or Chapter 17, Title 2, except a technical violation
pursuant to Section 8-13-1170 or 8-13-1372, the ethics committee
shall refer the complaint to the State Ethics Commission for an
investigation pursuant to Section 8-13-540. The appropriate
ethics committee shall investigate and make determinations for
technical violations of Section 8-13-1170 or 8-13-1372;
(4) receive and hear a
complaint which alleges a breach of a privilege governing a
member or staff of 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
complaint may be accepted by the ethics committee or the
State Ethics Commission 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 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 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
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 to issue, upon request from persons covered by this
chapter and Chapter 17, Title 2, and publish advisory opinions
on the requirements of these chapters."
SECTION 5. A. 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) When a
complaint is filed with or by the ethics committee, a copy must
be sent to the person alleged to have committed the violation
and to the State Ethics Commission, within thirty days from the
date the complaint was filed, for an investigation as provided
in this subsection. The State Ethics Commission may commence an
investigation of an alleged violation of this chapter or Chapter
17, Title 2 of a member of the General Assembly, its staff, or
candidates for the General Assembly upon the filing of a
complaint by the commission or an individual, or by the referral
of a complaint by the appropriate ethics committee. A copy of
the complaint must be sent to the appropriate ethics committee.
However, the appropriate ethics committee shall investigate and
make a determination for a complaint that alleges only a
technical violation of Section 8-13-1170 or 8-13-1372.
(2)
If an alleged violation is found to be
groundless by the State Ethics Commission, a report must be
provided to the appropriate ethics committee. The appropriate
ethics committee may concur or nonconcur with the commission's
report or, within fifteen days from the receipt of the State
Ethics Commission's report, request the commission to continue
the investigation and consider additional matters not considered
by the commission. 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.
(3)
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.
(4)(a)
To conduct its investigation:
(i)
the State Ethics commission, upon receipt of
information, may initiate a complaint upon an affirmative vote
of the commission or shall accept notarized complaints referred
from the ethics committees or from an individual, whether
personally or on behalf of an organization or governmental body,
that states the name of a person alleged to have committed a
violation of this chapter or Chapter 17, Title 2 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;
(ii)
if the commission or its executive director
determines that the complaint does not allege facts sufficient
to constitute a violation, a report must be provided to the
appropriate ethics committee. The appropriate ethics committee
may concur or nonconcur with the commission's report, or within
fifteen days from the committee's receipt of the finding, the
committee may request the commission to continue the
investigation and consider additional matters not considered by
the commission. If the appropriate ethics committee concurs with
the recommendation to dismiss the complaint, the committee must
notify the complainant and respondent. All documents related to
a complaint that result in a dismissal or a finding of no
probable cause remains confidential, unless the respondent
waives the right to confidentiality;
(iii)
if the commission or its executive
director determines that the complaint alleges facts sufficient
to constitute a violation, an investigation may be conducted
into the alleged violation. However, if the commission receives
or initiates a complaint regarding a member of the General
Assembly, legislative staff, or a candidate for the General
Assembly, that only alleges a technical violation pursuant to
Section 8-13-1170 or 8-13-1372, the complaint must be forwarded
to the appropriate ethics committee for an investigation and
disposition of the matter;
(iv)
if the commission finds that there is probable
cause to support the existence of criminal intent on the part of
the respondent when the violation occurred, then the complaint
and accompanying materials must also be provided to the Attorney
General;
(v)
if the commission determines that assistance is
needed in conducting an investigation, the commission shall
request the assistance of appropriate agencies;
(vi)
the commission may order testimony to be taken
in any investigation or hearing by 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, subject to judicial enforcement, and issue subpoenas
for the procurement of witnesses and materials including books,
papers, records, documents, or other tangible objects relevant
to the agency's investigation by approval of the chairman,
subject to judicial enforcement. 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.
(b)
All investigations and accompanying documents
are confidential and only may be released pursuant to this item.
Thirty days after a recommendation of probable cause by the
commission after it completes its investigation, the following
documents become public record: the complaint, the response by
the respondent, the notice of hearing before the appropriate
ethics committee, the investigative findings, exhibits
introduced at any hearing, and the final order. However, if the
appropriate committee requests a further investigation, the
documents must not be released until thirty days after the
conclusion of the investigation or upon a finding of probable
cause by the committee, whichever occurs earlier.
(c)
Exhibits introduced must be redacted prior to
release to exclude personal information where the public
disclosure would constitute an unreasonable invasion of personal
privacy. The respondent may waive the right to confidentiality.
The wilful release of confidential information is a
misdemeanor, and a person releasing confidential information,
upon conviction, must be fined not more than one thousand
dollars or imprisoned for not more than one year.
(5)
Upon completion of the commission's
investigation, the commission shall make a recommendation as to
whether there is probable cause to believe a violation of this
chapter or of Chapter 17, Title 2 has occurred. The commission
shall forward a copy of its recommendation, along with a copy of
all relevant reports, evidence, and testimony, to the
appropriate ethics committee.
(6)
If after reviewing the commission's recommendation and
relevant evidence, the ethics committee determines that probable
cause does not exist, it shall send a written decision to the
respondent and the complainant. If the ethics committee
determines 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 public hearing on the matter
within thirty days of the respondent's failure to comply with
the advisory opinion. A complaint must not be accepted which is
filed later than four years after the alleged violation
occurred.
(B) If a
formal public hearing is to be held,:
(1)
the investigator or attorney handling the
investigation from the ethics commission shall present the
evidence related to the complaint to the appropriate ethics
committee;
(2)
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;
(3)
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
open to the public.
(C)(a)
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, Title 2, it shall:
(1)
administer a public reprimand;
(2)
determine that a technical violation as provided
for in Section 8-13-1170 or 8-13-1372 has occurred;
(3)
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;
(4)
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;
(5)
recommend expulsion of the member;
(6)
provide a copy of the complaint and accompanying
materials to the Attorney General if the committee finds that
there is probable cause to support the existence of criminal
intent on the part of the respondent when the violation
occurred;
(7)
require a combination of items (1) though (6) as
necessary and appropriate.
(b)
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 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.
(D) 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.
(E) No
ethics committee member may participate in any matter in which
he is involved.
(F) 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."
B. Article 5, Chapter 13, Title 8 of the 1976 Code is amended by adding:
"Section 8-13-545.
(A) The ethics committee may issue a
formal advisory opinion, based on real or hypothetical sets of
circumstances. A formal advisory opinion issued by the
committee is binding on the State Ethics Commission and 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) Staff of the
appropriate ethics committee may issue a written informal
advisory opinion, based on real or hypothetical set of
circumstances, to a member upon that member's request. If
raised in response to a complaint, the State Ethics Commission
and the committee shall consider whether the member relied, in
good faith, upon a written informal opinion prior to making a
probable cause determination or concurring in a determination,
as applicable. A written informal advisory opinion issued by
the committee staff is binding on the State Ethics Commission
and the committee, until amended or revoked, in any subsequent
charges concerning the person who requested the informal opinion
unless material facts were omitted or misstated by the person in
the request for the opinion.
(C) The State Ethics
Commission and the appropriate ethics committee shall consider
whether a person relied in good faith upon a formal advisory
opinion or written informal opinion issued by the committee
prior to the effective date of this act, unless amended or
revoked prior to the action considered as a possible violation,
prior to making a probable cause decision."
SECTION 6. Chapter 13, Title 8 of the 1976 Code is amended by adding:
Section 8-13-610. When a complaint is filed with or by the Commission on Judicial Conduct, a copy must be sent to the person alleged to have committed the violation and to the State Ethics Commission, within thirty days from the date the complaint was filed, for an investigation as provided in this subsection. The State Ethics Commission may commence an investigation of an alleged violation of the Canons of Judicial Conduct, Chapter 17, Title 2 and Chapter 13, Title 8, as applicable, of a judge and other judicial officials of the unified judicial system upon the filing of a complaint by the commission or an individual, or by the referral of a complaint by the Commission on Judicial Conduct. A copy of the complaint must be sent to the Commission on Judicial Conduct.
Section 8-13-620. If an alleged violation is found to be groundless by the State Ethics Commission, a report must be provided to the Commission on Judicial Conduct. The Commission on Judicial Conduct may concur or nonconcur with the commission's report or, within fifteen days from the receipt of the State Ethics Commission's report, request the commission to continue the investigation and consider additional matters not considered by the commission. 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 section, 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.
Section 8-13-630. 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.
Section 8-13-640. (A)
To conduct its investigation:
(1)
The State Ethics Commission, upon receipt of information,
may initiate a complaint upon an affirmative vote of the
commission or shall accept notarized complaints referred from
the Commission on Judicial Conduct or from an individual,
whether personally or on behalf of an organization or
governmental body, that states the name of a person alleged to
have committed a violation of the Canons of Judicial Conduct,
Chapter 17, Title 2 and Chapter 13, Title 8, as applicable, 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 the respondent within ten days
of the filing of the complaint.
(2)
If the commission or its executive director determines
that the complaint does not allege facts sufficient to
constitute a violation, a report must be provided to the
Commission on Judicial Conduct. The Commission on Judicial
Conduct may concur or nonconcur with the commission's report,
or within fifteen days from the Commission on Judicial Conduct's
receipt of the finding, it may request the State Ethics
Commission to continue the investigation and consider additional
matters not considered by the commission. If the Commission on
Judicial Conduct concurs with the recommendation to dismiss the
complaint, it must notify the complainant and respondent. All
documents related to a complaint that result in a dismissal or a
finding of no probable cause must remain confidential, unless
the respondent waives the right to confidentiality.
(3)
If the commission or its executive director determines
that the complaint alleges facts sufficient to constitute a
violation, an investigation may be conducted into the alleged
violation.
(4)
If the commission finds that there is probable cause to
support the existence of criminal intent on the part of the
respondent when the violation occurred, then the complaint and
accompanying materials also must be provided to the Attorney
General.
(5)
If the commission determines that assistance is needed in
conducting an investigation, the commission shall request the
assistance of appropriate agencies.
(6)
The commission may order testimony to be taken in any
investigation or hearing by 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, subject to judicial enforcement, and issue subpoenas
for the procurement of witnesses and materials including books,
papers, records, documents, or other tangible objects relevant
to the agency's investigation by approval of the chairman,
subject to judicial enforcement. 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 under this
section.
(7)
All investigations and accompanying documents are
confidential and only may be released pursuant to this item.
Thirty days after a recommendation of probable cause by the
commission after it completes its investigation, the following
documents become public record: the complaint, the response by
the respondent, the notice of hearing before the Commission on
Judicial Conduct, the investigative findings, exhibits
introduced at any hearing, and the final order. However, if the
Commission on Judicial Conduct requests a further investigation,
the documents must not be released until thirty days after the
conclusion of the investigation or upon a finding of probable
cause by the committee, whichever occurs earlier.
(B) Exhibits introduced
must be redacted prior to release to exclude personal
information where the public disclosure would constitute an
unreasonable invasion of personal privacy. The respondent may
waive the right to confidentiality. The wilful release of
confidential information is a misdemeanor, and a person
releasing confidential information, upon conviction, must be
fined not more than one thousand dollars or imprisoned for not
more than one year.
Section 8-13-650. Upon completion of the commission's investigation, the commission shall make a recommendation as to whether there is probable cause to believe a violation of the Canons of Judicial Conduct, Chapter 17, Title 2 and Chapter 13, Title 8, as applicable, has occurred. The commission shall forward a copy of its recommendation, along with a copy of all relevant reports, evidence, and testimony, to the Commission on Judicial Conduct and the Supreme Court for disposition pursuant to its rules." /
Renumber sections to conform.
Amend title to conform.