2011 Louisiana Laws
TITLE 42 — Public officers and employees
RS 42:1141 — Procedure; adjudicatory board
SUBPART B. PROCEDURE
§1141. Procedure; adjudicatory board
A. Panels. (1) The board members shall sit en banc and in panels in such order and at such times as the board directs.
(2) The board shall authorize the hearing and determination of matters by separate panels, each consisting of not less than three members. Such panels shall sit at the times and places to hear matters assigned as the chairman directs. Such hearings shall be public except those provided for in Subsection C of this Section. Each panel shall be vested with specific subject matter jurisdiction. The board may determine by rule a procedure to rotate members among different subject matter panels to encourage the participation of each member of the board in, and the knowledge of each member of the board of, matters concerning the different provisions of law under the jurisdiction of the board.
(3) Matters shall be heard and determined by the board or panel of not less than three members, unless a hearing before the board en banc is ordered by a majority of the members of the board. The presence of the three members of the panel shall be required to conduct the business of the panel.
(4) Notwithstanding any other provision of this Chapter, the presence of nine members shall be required to conduct the business of the board sitting en banc.
(5) The board shall promulgate procedural and jurisdictional rules relative to the establishment of the several panels. The rules shall specify procedures wherein the chairman may refer matters to the appropriate panel with proper subject matter jurisdiction.
(6) The board, by a majority vote of its membership, may review any opinion, decision, finding, or ruling of any panel.
B. Complaints. (1)(a) The board shall consider any signed sworn complaint from any elector, hereinafter referred to as complainant, concerning a violation of this Chapter which is within its jurisdiction or the regulations or orders issued by the board, or may, by a two-thirds majority vote of its membership, consider any matter which it has reason to believe may be a violation of this Chapter. Additionally, the board may consider any matter which it has reason to believe may be a violation of any other provision of law within its jurisdiction as provided in this Subsection or as may be otherwise provided by law. A certified copy of the vote; a detailed explanation of the matter, including the specific factual allegations upon which the board based its decision to investigate; and a copy of any complaint received by the board, from which the name of the complainant has been redacted, shall be sent by certified mail to the accused and the complainant within ten days after the vote occurs or after receipt of a signed sworn complaint. The chairman of the board shall assign each such matter to the appropriate panel for investigation.
(b) The board shall provide a person who has filed a non-sworn complaint with only a notification stating the final disposition of the complaint.
(2) A notice or report sent to the board by the legislative auditor or the inspector general may be treated by the board as a matter for consideration in accordance with the provisions of this Subsection.
(3) Repealed by Acts 2010, No. 861, §22.
C. Investigation and hearing. (1) Upon receiving a sworn complaint or voting to consider a matter as provided in Subsection B, a private investigation shall be conducted to elicit evidence upon which the panel as provided in this Section shall determine whether to recommend to the board that a public hearing be conducted or that a violation has not occurred. The accused and the complainant shall be given written notification of the commencement of the investigation not less than ten days prior to the date set for the commencement of the investigation. All determinations in this Subsection shall be by a majority vote of the panel. However, in cases where the panel consists of three members, all determinations of such a panel shall require a unanimous vote of the members of the panel.
(2) After the investigation has been completed, the board shall determine whether a public hearing should be conducted to receive evidence and to determine whether any violation of any provision of law within its jurisdiction has occurred. If a violation has not occurred, the defendant and the complainant shall be notified within ten days of the ruling.
(3)(a) If the board determines following an investigation that a public hearing should be conducted, the board shall issue charges. A public hearing shall be conducted to receive evidence relative to the facts alleged in the charges and to determine whether any violation of any provision of law within the jurisdiction of the board has occurred. The public hearing on such charges shall be conducted by the Ethics Adjudicatory Board in accordance with the Administrative Procedure Act and this Part.
(b) The charges issued by the board shall contain each of the following:
(i) A plain, concise, and definite written statement of the essential facts constituting the alleged violation.
(ii) The official or customary citation of the statute which is alleged to have been violated.
(iii) The date of the meeting at which the board voted to issue charges.
(iv) The name of the trial attorney, if designated.
(c) If the board does not issue charges within one year from the date upon which a sworn complaint is received or, if no sworn complaint was received, within one year from the date the board voted to consider the matter, the matter shall be dismissed.
(d) The board shall consider offering a consent opinion to each person who is the subject of an investigation.
(4)(a) The director of the division of administrative law shall randomly select seven administrative law judges from among those who meet the qualifications to comprise the Ethics Adjudicatory Board. The last selected judge shall serve as the alternate. Members of the adjudicatory board shall have not less than two years of experience as an administrative law judge or not less than ten years experience in the practice of law.
(b) Members of the Ethics Adjudicatory Board shall be subject to the same financial disclosure requirements as are provided by law for members of the Board of Ethics. Such members shall also be subject to the same limitations regarding contracting as are applicable to the members of the Board of Ethics as provided by law.
(c)(i) The members of the Ethics Adjudicatory Board shall be randomly selected at a public meeting of the Board of Ethics, from among the names of all administrative law judges who meet the qualifications. The current Ethics Adjudicatory Board shall serve through December 31, 2010. Thereafter, the adjudicatory board members shall be selected to each serve a three-year term, which term shall begin on January first. The adjudicatory board members shall be randomly selected at a public meeting held by the Board of Ethics in December of the year preceding the year in which the terms are to begin. There shall be no limitation on the number of times a qualified member may be selected to serve.
(ii) A vacancy on either three-judge panel shall be filled by the alternate judge.
(iii) A vacancy on the Ethics Adjudicatory Board shall be filled for the unexpired term at the next public meeting of the Board of Ethics and in the same manner as for the original selection. The last selected judge shall serve as the alternate.
(d)(i) The Ethics Adjudicatory Board shall sit in rotating panels composed of three administrative law judges randomly selected from among the members of the adjudicatory board. The administrative law judge most senior in service who is present shall preside. The determination of the majority of the panel in a particular case shall be the determination of the Ethics Adjudicatory Board. After the hearing, the presiding administrative law judge shall assign authorship responsibility for the determination.
(ii) At the hearing, an ethics adjudicatory panel shall determine whether a violation of any provision of law within the jurisdiction of the Board of Ethics has occurred. If the ethics adjudicatory panel determines that a violation has occurred, it shall determine what authorized penalties or other sanctions, if any, should be imposed.
(e) If the public hearing of the ethics adjudicatory panel fails to disclose clear and convincing evidence to support the charges, the ethics adjudicatory panel shall make an official determination of its findings, and thereupon the Board of Ethics shall close its file on the charges. The person charged and the complainant shall be notified in writing within ten days of the ethics adjudicatory panel's rendition of a final decision. The person charged may require the ethics adjudicatory panel to make an official determination of the validity of the charges against him.
(5) If the ethics adjudicatory panel determines that a violation has occurred and prescribes authorized penalties or other sanctions, the public servant or person may appeal as set forth in R.S. 42:1142.
(6) Any complainant who, with knowledge of its falsity, makes a false non-sworn complaint shall be subject to the penalties set forth in R.S. 42:1153.
(7) If an administrative law judge who is a member of the Ethics Adjudicatory Board begins work on a matter prior to the end of his term, he shall not be prohibited from completing work on the matter following the end of his term. He shall be considered a member of the Ethics Adjudicatory Board until such work is complete, and such status shall not affect the selection of members for the Ethics Adjudicatory Board.
(8) Any member of the Ethics Adjudicatory Board who has a personal interest in or who becomes the subject of a hearing pursuant to this Part shall recuse himself from participation in such hearing.
D. Location of hearings. The Board of Ethics, a panel thereof, or an ethics adjudicatory panel, may conduct any hearing provided in this Section in the parish wherein the public servant or person alleged to have violated any provision of law within the jurisdiction of the board resides, or in the parish of the official domicile of any office or employment held by the defendant, or in the parish of domicile of the board.
E. Procedure. (1)(a) Any public servant or other person who is to be the subject of a public or private hearing and the complainant shall be given written notification of the pending charges and of the time and place such hearing is to be held. Such notification shall not be less than sixty days prior to the date set for the hearing. Upon the request of a public servant or other person charged, the hearing may be held sooner.
(b) The board shall give public notice of each hearing to be conducted by the Ethics Adjudicatory Board pursuant to this Section.
(2)(a) For purposes of an investigation or a hearing, the board or panel may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any records which the board deems relevant or material to the investigation or hearing. Such attendance of witnesses and the production of any such records may be required at any place designated by the board or panel at no cost to the public servant or other person charged as permitted by the rules of the board.
(b) The board shall adopt rules providing for discovery consistent with Chapter 3 of Title III of Book II of the Code of Civil Procedure, to the extent and in the manner appropriate to its proceedings.
(3) In case of contumacy or refusal to obey a subpoena issued to any public servant or other person, any district court of this state within the jurisdiction of which the inquiry is carried on, or within which said public servant or other person is found, resides, or transacts business, upon application by the board shall have jurisdiction to issue to such public servant or other person an order requiring him to appear before the board or panel and to produce evidence, if so ordered, or to give testimony touching on the matter under consideration. Any failure to obey such order of the court may be punished by the court as a contempt thereof.
(4)(a) If any public employee shall willfully refuse or fail to appear before the board or panel, or any court authorized to conduct any hearing or inquiry pertaining to the provisions of this Chapter, or having appeared shall refuse to testify or answer any question specifically, directly, and narrowly relating to the performance of his official duties on the ground that his testimony or answers would tend to incriminate him, or shall refuse to accept immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry, such action shall be grounds for dismissal or forfeiture of his office or position and if dismissed, he shall not be eligible thereafter for employment by the governmental entity for a period of five years, unless such reemployment is authorized by a majority vote of the membership.
(b) If any elected official shall willfully refuse or fail to appear before the board or panel, or any court authorized to conduct any hearing or inquiry pertaining to the provisions of this Chapter or having appeared shall refuse to testify or answer any question specifically, directly, and narrowly relating to the performance of his official duties on the ground that his testimony or answers would tend to incriminate him, or shall refuse to accept immunity from prosecution on account of any matter about which he may be asked to testify at such hearing or inquiry, such action shall be grounds for the board to prescribe the penalties provided in R.S. 42:1153 against such elected official.
(5) Any public servant or other person who is the subject of any hearing may have legal counsel, cross-examine witnesses, call witnesses, and present evidence in his own behalf.
(6) Any public servant or other person who is the subject of any investigation shall be advised of his right to have an attorney present.
(7) Any witness may be accompanied by counsel at investigations or hearings, which counsel may advise the witness of his rights, subject to reasonable limitations to prevent obstruction of or interference with the orderly conduct of the investigation or hearing. His counsel may also submit proposed questions to be asked for his client.
(8) Any witness at any investigation or hearing, subject to rules and regulations promulgated by the board, shall be entitled to a copy of his testimony when the same becomes important and relevant in a criminal proceeding or subsequent investigation or hearing, provided that the furnishing of such copy will not prejudice the public safety or security.
(9) In making any official determination of whether any provision of law within the jurisdiction of the board has been violated, the Ethics Adjudicatory Board or panel thereof may only consider testimony given under oath and transcribed verbatim by a reporter.
(10) Any public servant or other person who is aggrieved by any action taken by a panel of the Board of Ethics may request a review of the panel's decision by the full Board of Ethics within thirty days of the panel's decision. The board shall determine whether or not to review the panel's action within thirty days of the request for review.
(11) The records of the board prepared or obtained in connection with investigations and private hearings conducted by the board, including all extracts of minutes and votes to take any matter under consideration in connection therewith, shall be deemed confidential and privileged, except that such records shall be available to each member of the board upon request. Except as provided in this Paragraph and in R.S. 42:1111(E)(2)(c), all records, including the results and conclusions reached in connection with any investigation or hearing, shall be public.
(12)(a) It shall be a misdemeanor, punishable by a fine of not more than two thousand dollars or imprisonment for not more than one year, or both, for any member of the board, its executive secretary, other employee, or any other person, to make public the testimony taken at a private investigation or private hearing of the board or to make any public statement or give out any information concerning a private investigation or private hearing of the board without the written request of the public servant or other person investigated.
(b) Upon receipt of a written request by the public servant or person charged, the board shall furnish the requestor with a certified copy of the entire proceedings of a private hearing, including a verbatim transcript of all testimony considered at such hearing, and make public the findings of any private investigation or hearing in connection with the charges.
F. Exception. The provisions of R.S. 42:11 et seq. shall not apply to investigations and private hearings conducted by the board.
Acts 1979, No. 443, §1, eff. April 1, 1980. Amended by Acts 1980, No. 579, §1; Acts 1980, No. 580, §1; Acts 1987, No. 730, §1; Acts 1996, 1st Ex. Sess., No. 64, §6, eff. Jan. 1, 1997; Acts 1997, No. 1303, §1; Acts 2001, No. 384, §1; Acts 2008, 1st Ex. Sess., No. 23, §1, eff. Aug. 15, 2008; Acts 2008, No. 128, §1; Acts 2008, No. 595, §1; Acts 2010, No. 1002, §1, eff. July 8, 2010; Acts 2010, No. 861, §22.
NOTE: See Acts 1997, No. 1303, §§2 and 3, for effectiveness of Paragraph (B)(3).
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