ORS 244.260
Complaint and adjudicatory process
- confidentiality
- Preliminary Review Phase
- presentation of statement of facts and recommendations
- Investigatory Phase
- possible actions by order
- report of findings
- contested case procedure
- limitation on commission action
(1)
Intentionally left blank —Ed.(a)
Any person may file with the Oregon Government Ethics Commission a signed written complaint alleging that there has been a violation of any provision of this chapter or of any rule adopted by the commission under this chapter. The complaint shall state the person’s reason for believing that a violation occurred and include any evidence relating to the alleged violation.(b)
If at any time the commission has reason to believe that there has been a violation of a provision of this chapter or of a rule adopted by the commission under this chapter, the commission may proceed under this section on its own motion as if the commission had received a complaint.(2)
Intentionally left blank —Ed.(a)
Not later than two business days after receiving a complaint under this section, the commission shall notify the person who is the subject of the complaint.(b)
Before approving a motion to proceed under this section without a complaint, the commission shall provide notice to the person believed to have committed the violation of the time and place of the hearing at which the motion will be discussed. If the commission decides to proceed on its own motion, the commission shall give notice to the person not later than two business days after the motion is approved.(c)
The commission shall give notice of the complaint or motion under paragraph (a) or (b) of this subsection. The notice must describe the nature of the alleged violation. The notice must include copies of all materials submitted with a complaint. If the commission will consider a motion to proceed without a complaint, the notice must provide copies of all materials that the commission will consider at the hearing on the motion.(d)
Information that the commission considers before approving a motion to proceed on its own motion under this section and any correspondence regarding the motion or potential violation is confidential. The executive director of the commission and the commission members and staff may not make any public comment or publicly disclose any materials relating to the motion pending the commission’s approval to proceed. A person who intentionally violates this paragraph is subject to a civil penalty in an amount not to exceed $1,000. Any person aggrieved as a result of a violation of this paragraph by the executive director or a member of the commission or its staff may file a petition in a court of competent jurisdiction in the county in which the petitioner resides in order to enforce the civil penalty provided in this paragraph.(3)
After the commission receives a complaint or decides to proceed on its own motion, the executive director of the commission shall undertake action in the Preliminary Review Phase to determine whether there is cause to undertake an investigation. If the person who is the subject of the action is a member of the Legislative Assembly, the executive director shall determine whether the alleged violation involves conduct protected by Article IV, section 9, of the Oregon Constitution.(4)
Intentionally left blank —Ed.(a)
The Preliminary Review Phase begins on the date the complaint is filed or the date the commission decides to proceed on its own motion and ends on the date the executive director completes the statement of the facts determined during the phase under paragraph (d) of this subsection. The Preliminary Review Phase may not exceed 60 days unless a complaint is filed under this section with respect to a person who is a candidate for elective public office, the complaint is filed within 61 days before the date of an election at which the person is a candidate for nomination or election and a delay is requested in writing by the candidate. If the candidate makes a request under this paragraph, the Preliminary Review Phase must be completed not later than 60 days after the date of the election.(b)
During the Preliminary Review Phase, the executive director of the commission may seek, solicit or otherwise obtain any books, papers, records, memoranda or other additional information, administer oaths and take depositions necessary to determine whether there is cause to undertake an investigation or whether the alleged violation involves conduct protected by Article IV, section 9, of the Oregon Constitution.(c)
The Preliminary Review Phase is confidential. The executive director of the commission and any commission members and staff may acknowledge receipt of a complaint but may not make any public comment or publicly disclose any materials relating to a case during the Preliminary Review Phase. A person who intentionally violates this paragraph is subject to a civil penalty in an amount not to exceed $1,000. Any person aggrieved as a result of a violation of this paragraph by the executive director or a member of the commission or its staff may file a petition in a court of competent jurisdiction in the county in which the petitioner resides in order to enforce the civil penalty provided in this paragraph.(d)
Intentionally left blank —Ed.(A)
At the end of the Preliminary Review Phase, the executive director of the commission shall prepare a statement of the facts determined during the phase, including appropriate legal citations and relevant authorities. Before presentation to the commission, the executive director’s statement shall be reviewed by legal counsel to the commission.(B)
Following the conclusion of the Preliminary Review Phase, the executive director of the commission shall attend an executive session of the commission where the executive director shall present the statement of the facts and summarize the results of the Preliminary Review Phase to the commission and recommend to the commission whether there is cause to undertake an investigation or whether the commission should instead dismiss the complaint or rescind its motion.(C)
At the executive session, the commission shall consider the recommendation of the executive director and make the final determination as to whether there is cause to undertake an investigation or whether the commission should instead dismiss the complaint or rescind its motion.(D)
All case related materials and proceedings shall be open to the public after the commission makes a finding of cause to undertake an investigation, dismisses a complaint or rescinds a motion.(e)
The time limit imposed in this subsection and the commission’s inquiry are suspended if a court has enjoined the executive director or the commission from continuing the inquiry.(5)
Intentionally left blank —Ed.(a)
If the commission determines that there is not cause to undertake an investigation or that the alleged violation of this chapter involves conduct protected by Article IV, section 9, of the Oregon Constitution, the commission shall dismiss the complaint or rescind its motion and formally enter the dismissal or rescission in its records. If the commission considers the recommendation of the executive director in an executive session but the commission does not affirmatively vote to undertake an investigation, dismiss the complaint or rescind its motion, the nonaction taken by the commission shall be considered a dismissal of the complaint or a rescission of its motion. The commission shall notify the person who is the subject of action under this section of the dismissal or rescission. After dismissal or rescission, the commission may not take further action involving the person unless a new and different complaint is filed or action on the commission’s own motion is undertaken based on different conduct.(b)
If the commission makes a finding of cause to undertake an investigation, the commission shall undertake action in the Investigatory Phase. The commission shall notify the person who is the subject of the investigation, identify the issues to be examined and confine the investigation to those issues. If the commission finds reason to expand the investigation, the commission shall move to do so, record in its minutes the issues to be examined before expanding the scope of its investigation and formally notify the complainant, if any, and the person who is the subject of the investigation of the expansion and the scope of the investigation.(6)
Intentionally left blank —Ed.(a)
The Investigatory Phase begins on the date the commission makes a finding of cause to undertake an investigation and ends on the date the commission dismisses the complaint, rescinds its own motion, issues a settlement order, moves to commence a contested case proceeding or takes other action justified by the findings. Except as provided in this subsection, the Investigatory Phase may not exceed 180 days unless a delay is stipulated to by both the person who is the subject of action under this section and the commission with the commission reserving a portion of the delay period to complete its actions.(b)
During the Investigatory Phase, the commission may seek any additional information, administer oaths, take depositions and issue subpoenas to compel attendance of witnesses and the production of books, papers, records, memoranda or other information necessary to complete the investigation. If any person fails to comply with any subpoena issued under this paragraph or refuses to testify on any matters on which the person may be lawfully interrogated, the commission shall follow the procedure described in ORS 183.440 (Subpoenas in contested cases) to compel compliance.(c)
The time limit imposed in this subsection and the commission’s investigation:(A)
May be suspended if there is a pending criminal investigation that relates to the issues arising out of the underlying facts or conduct at issue in the matter before the commission and the commission determines that it cannot adequately complete its investigation until the pending criminal investigation is complete; or(B)
Are suspended if a court has enjoined the commission from continuing its investigation.(d)
At the end of the Investigatory Phase, the commission shall take action by order. The action may include:(A)
Dismissal, with or without comment;(B)
Continuation of the investigation for a period not to exceed 30 days for the purpose of additional fact-finding;(C)
Moving to a contested case proceeding;(D)
Entering into a negotiated settlement; or(E)
Taking other appropriate action if justified by the findings.(e)
The commission may move to a contested case proceeding if the commission determines that the information presented to the commission is sufficient to make a preliminary finding of a violation of any provision of this chapter or of any rule adopted by the commission under this chapter.(7)
A person conducting any inquiry or investigation under this section shall:(a)
Conduct the inquiry or investigation in an impartial and objective manner; and(b)
Provide to the executive director or the commission all favorable and unfavorable information the person collects.(8)
The commission shall report the findings of any inquiry or investigation in an impartial manner. The commission shall report both favorable and unfavorable findings and shall make the findings available to:(a)
The person who is the subject of the inquiry or investigation;(b)
The appointing authority, if any;(c)
The Attorney General, if the findings relate to a state public official;(d)
The appropriate district attorney, if the findings relate to a local public official; and(e)
The Commission on Judicial Fitness and Disability, if the findings relate to a judge.(9)
Hearings conducted under this chapter must be held before an administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605 (Office of Administrative Hearings). The procedure shall be that for a contested case under ORS chapter 183.(10)
The Oregon Government Ethics Commission may not inquire into or investigate any conduct that occurred more than four years before a complaint is filed or a motion is approved under subsection (1) of this section.(11)
This section does not prevent the commission and the person alleged to have violated any provision of this chapter or any rule adopted by the commission under this chapter from stipulating to a finding of fact concerning the violation and consenting to an appropriate penalty. The commission shall enter an order based on the stipulation and consent.(12)
At any time during proceedings conducted under this section, the commission may enter into a negotiated settlement with the person who is the subject of action under this section.(13)
As used in this section:(a)
“Cause” means that there is a substantial, objective basis for believing that an offense or violation may have been committed and the person who is the subject of an inquiry may have committed the offense or violation.(b)
“Pending” means that a prosecuting attorney is either actively investigating the factual basis of the alleged criminal conduct, is preparing to seek or is seeking an accusatory instrument, has obtained an accusatory instrument and is proceeding to trial or is in trial or in the process of negotiating a plea. [1974 c.72 §13; 1989 c.807 §1; 1991 c.272 §1; 1991 c.770 §1a; 1993 c.743 §18; 1999 c.849 §§51,52; 1999 c.850 §1; 2003 c.75 §30; 2007 c.865 §23; 2009 c.163 §2; 2015 c.619 §2; 2021 c.263 §1]
Source:
Section 244.260 — Complaint and adjudicatory process; confidentiality; Preliminary Review Phase; presentation of statement of facts and recommendations; Investigatory Phase; possible actions by order; report of findings; contested case procedure; limitation on commission action, https://www.oregonlegislature.gov/bills_laws/ors/ors244.html.
Notes of Decisions
Where Commission determined that it was unnecessary to make formal investigation of citizen’s charges against public official, contested case provisions of Administrative Procedures Act never became applicable. Fadeley v. Ethics Commission, 30 Or App 795, 568 P2d 687 (1977)
Cause to believe that violation may have occurred is lesser standard than probable cause. Brian v. Oregon Government Ethics Commission, 126 Or App 358, 868 P2d 1359 (1994), aff’d 320 Or 676, 891 P2d 649 (1995)
Commission authority to investigate and punish violations by public officials applies to former officials for acts committed while in office. Moine v. Oregon Government Ethics Commission, 128 Or App 681, 877 P2d 96 (1994), Sup Ct review denied
Law Review Citations
44 WLR 399 (2007)
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