Chapter 6.20
PROCEDURES

Sections:

6.20.010    Filing of a verified complaint.

6.20.020    Form of verification.

6.20.030    Confidentiality.

6.20.040    Service of complaint.

6.20.050    Response.

6.20.060    Transmittal.

6.20.070    Board of ethics review and determination.

6.20.080    Pre-hearing conference.

6.20.090    Hearing notice.

6.20.100    Subpoenas.

6.20.110    Motions – Depositions.

6.20.120    Service by mail and filing.

6.20.130    Hearing.

6.20.140    Findings of fact and conclusions of law.

6.20.150    Appeal of findings of fact and conclusions of law and penalty.

6.20.160    Records retention.

6.20.010 Filing of a verified complaint.

Any person may file a verified complaint with the clerk alleging that a public official has violated one or more provisions of FNSBC 6.12.010. The complaint must:

A. Be a written statement of the charge setting out in ordinary and precise language the acts or omissions with which the respondent is charged, so that the respondent is able to prepare a defense;

B. Specify the subsection(s) of FNSBC 6.12.010 that the respondent is alleged to have violated;

C. No action may be taken on any complaint which is filed later than two years after a violation of this division is alleged to have occurred, and a complaint alleging a violation must be filed within two years from the date the complainant(s) knew or should have known of the action alleged to be a violation; provided, that in no event shall a hearing be initiated more than five years after the alleged violation occurred. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.150.)

6.20.020 Form of verification.

A. The verification shall be substantially in the following form:

I, (complainant/respondent), have read the foregoing complaint/response, know the contents thereof, and the same are true to the best of my knowledge and belief.

B. The complaint/response and the verification must be signed by the complainant/respondent before a notary public. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.160.)

6.20.030 Confidentiality.

A. All proceedings in respect of a complaint filed under FNSBC 6.20.010 are confidential and may not be disclosed to any person except as required for the proper processing and handling of the complaint.

B. It is not a violation of this section for a person to contact or retain an attorney or to participate in a criminal investigation.

C. All proceedings and records shall remain confidential unless the respondent requests a public hearing or until the board of ethics files with the assembly its findings of fact and conclusions of law concerning the complaint. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.170.)

6.20.040 Service of complaint.

A. Upon receipt of a verified complaint, the clerk shall:

1. Stamp the complaint with the date and time received, number the complaint, establish a docket for further proceedings, and enter the complaint, including date and time received, on the docket.

2. Review the complaint to determine that it complies with FNSBC 6.20.010, that it alleges facts sufficient to constitute a violation, and that the board has jurisdiction over the matter.

B. If the clerk determines that the complaint complies with FNSBC 6.20.010 and that the board has jurisdiction, the clerk shall serve the complaint and notice on the respondent, personally, or by U.S. mail, certified return receipt requested.

C. The clerk shall notify both the respondent and the complainant that the complaint has been accepted.

D. The notice shall specify the following:

1. The respondent must file a response to the complaint within 30 days from the date of the clerk’s written notice;

2. The respondent may file a challenge to sufficiency of the complaint, if any, within 15 days;

3. The respondent has the right to submit affidavits or other written evidence in support of his or her response;

4. Failure to submit a timely response shall be deemed an admission of the allegations in the complaint;

5. The existence of the complaint shall be confidential until the board of ethics files its findings of fact and conclusions of law to the assembly concerning the complaint;

6. The complainant and the respondent have the right to be represented at any hearing throughout these proceedings.

E. If the clerk determines that the complaint fails to comply with FNSBC 6.20.010 or that the board does not have jurisdiction, the clerk shall dismiss the complaint, setting forth the grounds in a written decision. The clerk shall serve a copy of the decision on the complainant.

F. A complainant may appeal a dismissal of a complaint to the board by filing an appeal with the clerk within 15 days after the date of the notice of dismissal. The appeal must state all facts and legal grounds for the appeal. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.180.)

6.20.050 Response.

A. The respondent shall file a verified response within 30 days from the date of service of the complaint.

B. If the respondent fails to respond timely, the allegations of the complaint shall be deemed admitted. The clerk shall notify the complainant and respondent the allegations of the complaint are deemed admitted.

C. The respondent may appeal to the board any deemed admission of the allegations of the complaint, for good cause, by filing an appeal with the clerk within 15 days after the date on which the response was due. The appeal must state all facts and legal grounds for failure to respond timely. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.190.)

6.20.060 Transmittal.

The clerk will forthwith furnish to the board the complaint and response, if any, or any appeal and schedule a meeting of the board. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.200.)

6.20.070 Board of ethics review and determination.

A. The board shall review and consider all complaints accepted by the clerk, and timely responses, or any appeal of the dismissal of the complaint.

B. The board shall take any action or combination of actions which it deems appropriate and which it is lawfully empowered to take, including but not limited to the following:

1. Consider any timely appeals filed pursuant to FNSBC 6.20.040(F). Upon granting of the appeal, it shall notify the parties.

2. If the respondent has admitted the allegation or failed to respond, the board may issue findings of fact and conclusions of law based on the written record.

C. The board may, in its sole discretion, dismiss the complaint, or decide to proceed to resolution of the complaint if:

1. The complainant seeks to withdraw the complaint at any time before the board takes final action; or

2. The complainant, after notice, materially fails to cooperate in the board’s review and consideration of the complaint. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.210.)

6.20.080 Pre-hearing conference.

A. Upon receipt of the response, or the time has passed and the respondent has failed to answer the allegations of the complaint, the clerk shall furnish copies of the complaint and response, if any, to the complainant, the respondent and the members of the board of ethics, including the notice convening the board and setting the time and place for a pre-hearing conference.

B. The pre-hearing conference shall be held no later than 30 days after receipt of the response or the time for filing a response has run.

C. Both the complainant and the respondent may be represented by counsel at all proceedings after the filing of the complaint. An attorney representing a party shall file with the clerk an entry of appearance, furnishing the clerk with his or her name, mailing address, telephone and facsimile numbers and email addresses, if any.

D. At the pre-hearing conference, the following matters shall be considered:

1. Time and place for hearing on the complaint and response;

2. Any stipulations of fact;

3. Any motions to be filed;

4. Any simplifications of the issues;

5. Scheduling motions, discovery and any other relevant matters;

6. Exchange of evidence which shall not be later than 10 days before the hearing; and

7. Any other matters that the board determines will provide a fair and orderly hearing. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.220.)

6.20.090 Hearing notice.

A. If the board determines that a hearing on the complaint must be held, the clerk shall serve on the complainant and the respondent a notice of hearing setting out the time and place of hearing and the schedule for any preliminary matters. This notice shall include a statement of the right to provide written evidence and oral testimony. The complainant and the respondent shall also be informed of the right to be represented at the hearing.

B. If the respondent has failed to answer the allegations of the complaint or has admitted the allegations, the board shall prepare findings of fact and conclusions of law based on the written record. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.230.)

6.20.100 Subpoenas.

A. The board shall issue subpoenas and subpoenas duces tecum at the request of either the complainant or the respondent, and may issue subpoenas and subpoenas duces tecum to witnesses not called or named by either party but who are deemed by the board to have relevant information.

B. A subpoena issued under this section may be enforced in the superior court in the manner provided under the Alaska Rules of Civil Procedure. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.240.)

6.20.110 Motions – Depositions.

A. All motions shall be served in the manner set forth in the Alaska Rules of Civil Procedure and the answering party shall have 10 days from date of service to respond and moving party shall have five days to reply, unless another time has been agreed upon in the pre-hearing conference.

B. Either party or the board’s attorney may depose witnesses. Notices of deposition shall be served on the parties no less than three business days before the date scheduled for the deposition.

C. Motions and depositions may not be used to extend the time for hearing. For good cause shown, either party may apply to the board for an extension of the time for hearing. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.250.)

6.20.120 Service by mail and filing.

A. If service by mail is used, three days will be added for response time from the date of mailing. The party must certify the date mailed on the document.

B. All documents shall be filed with the clerk. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.260.)

6.20.130 Hearing.

A. All hearings shall be before the board of ethics. The chair of the board shall preside, unless another member of the board has been so designated by the board. The chair shall rule on admission and exclusion of evidence.

B. The board may administer oaths, hold hearings, and take testimony. Upon motion by the board or application by a party to the hearing, the board may issue subpoenas to require the presence of witnesses and the production of records, books and papers at the hearing.

C. The borough attorney, or designee, shall act as the attorney for the board and shall advise the board on matters of law.

D. The complainant and the respondent may each present opening statements setting out the matters they intend to prove. The complainant shall proceed first with his or her evidence and the respondent shall follow, setting forth his or her evidence. The complainant and the respondent may make closing arguments.

E. The board may obtain additional information by a request to the borough attorney or designee, to investigate the complaint and report all information to the board.

F. The Alaska Rules of Evidence do not apply to the admission of evidence in a hearing, but the board’s findings of fact must be based on reliable and relevant evidence.

G. At the conclusion of the presentation of evidence and closing arguments, the board shall consider the allegations, the evidence supporting them and the respondent’s evidence. If fewer than five members of the board are available for deliberation the alternate shall be seated as a voting member until conclusion of the matter, including any appeals; otherwise, the alternate is excused at the conclusion of the hearing.

H. The complainant, the respondent, and their counsel shall be excluded from all deliberations of the board. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.270.)

6.20.140 Findings of fact and conclusions of law.

A. The board shall enter its findings of fact and conclusions of law no later than 30 days after the conclusion of the hearing. The board shall notify the parties and their attorneys if an extension is required to permit the board to prepare its findings of fact and conclusion of law.

B. If the board finds that no violation has occurred, the board shall dismiss the complaint. The clerk shall serve the notice of dismissal on the complainant, the respondent and attorneys. The notice of dismissal remains confidential.

C. If the board finds that a violation of FNSBC 6.12.010 has been committed, it shall prepare and submit its findings of fact and conclusions of law to the assembly.

D. The findings of fact and conclusions of law are final and conclusive.

E. The assembly may not change, modify or otherwise alter the findings of fact and conclusions of law as submitted.

F. The assembly shall impose a penalty on the public official in accordance with FNSBC 6.24.010.

G. If the board determines that no violation has occurred, or otherwise dismisses the complaint for substantive reasons, the board may, in its discretion, award full or partial attorney fees to a public official who reasonably incurred those costs defending the complaint. This award may be made only to the extent that the assembly has appropriated funds for that purpose. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.280.)

6.20.150 Appeal of findings of fact and conclusions of law and penalty.

A. After the assembly has determined and imposed a penalty, appeal of the findings of fact and conclusions of law and the penalty may be taken to the superior court in accordance with the Alaska Rules of Appellate Procedure.

B. Notice of an appeal must be filed with the superior court within 30 days of the imposition of the penalty. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.290.)

6.20.160 Records retention.

The clerk shall provide for the storage or destruction of all records of the proceedings of the board in accordance with the approved borough retention schedule. (Ord. 2006-69 § 2, 2006. 2004 Code § 2.10.300.)