VIOLATIONS; COMPLAINT AND HEARING PROCEDURES.

Austin City Code tit. 2, ch. 2-7, art. 3

in effect

Austin City Code § 2-7-41 COMPLAINTS.

§ 2-7-41 - COMPLAINTS. (A) In this article: (1) COMPLAINANT means a person filing a sworn complaint. (2) RESPONDENT means a person who is alleged in a sworn complaint to have violated a provision within the jurisdiction of the Ethics Review Commission: (3) IDENTIFIED PERSON means a person, other than the respondent, who is identified by name in a sworn complaint as being involved in the alleged inappropriate conduct. (B) A complaint alleging a violation of a provision within the jurisdiction of the Ethics Review Commission shall specify each code section or charter provision alleged to have been violated. A complaint must state that the facts alleged are true and factual to the best knowledge of the person filing the complaint and be sworn to before a person authorized by law to administer an oath. (C) A complaint alleging a violation within the jurisdiction of the commission must be filed with the city clerk not later than the second anniversary of the date of the action alleged as a violation, and may not be filed afterward. (D) On the sworn complaint of any person filed with the city clerk's office or on the commission's own initiative, the commission shall consider possible violations of a provision within the jurisdiction of the commission by City officials and employees, former City officials and employees, candidates for election to City offices, and other persons subject to the provisions set forth in Section 2-7-26 (Functions). The commission may not consider complaints against its own members. (E) A complainant must disclose in the complaint filed with the commission evidence actually known to the complainant tending to negate guilt or mitigate the seriousness of the offense. Further, the complainant must disclose to the commission and the respondent any additional evidence discovered during the complaint process that negates guilt or mitigates the seriousness of the offense until the commission has taken final action on the complaint. (F) A city official or employee may not reveal information relating to the filing or processing of a complaint, except as required for the performance of the official's or employee's official duties, or as required by law. All papers and communications relating to a complaint must be treated as confidential unless required to be made public under the Public Information Act (Chapter 552 of the Texas Government Code) or other applicable law. Investigations conducted by the Office of the City Auditor or any other City department must be conducted in a confidential manner and records of any such investigations are confidential to the extent permitted by law. (G) Not later than the fifth working day after the city clerk receives a sworn complaint, the city clerk shall acknowledge the receipt of the complaint to the complainant and provide a copy of the complaint to the city attorney, the chair of the commission, and the respondent. The city clerk shall also send a copy of the complaint to any identified person whose contact information is listed on the complaint form. (H) Not later than the fifth working day after receipt of a complaint from the city clerk, the chair of the commission shall make an initial determination as to whether the complaint is within the commission's jurisdiction. (1) If the chair determines that a complaint is within the commission's jurisdiction, the chair shall set the complaint for a preliminary hearing not later than the 60th day after the chair's initial determination, unless agreed to by the parties or by a vote of the commission. The commission may overturn the chair's initial jurisdictional determination at the preliminary hearing. (a) Not later than the 10th working day prior to the meeting, the chair shall cause a written notice of the date of the preliminary hearing to be sent to the complainant, the respondent, and any identified person whose contact information is listed on the complaint form or is reasonably ascertainable. (b) For good cause, the chair may postpone a scheduled preliminary hearing on the request of the complainant, the respondent, or an identified person. (2) If the chair determines that a complaint is not within the commission's jurisdiction, the commission shall review the chair's determination and may overturn the chair's determination. (a) Not later than the fifth working day after the chair determines that a complaint is not within the commission's jurisdiction, the chair shall cause a written notification of the initial determination to be sent to the complainant, the respondent, and any identified person whose contact information is listed on the complaint form or is reasonably ascertainable. (b) If the commission determines that a complaint is not within its jurisdiction, not later than the 10th working day after the commission's determination, the chair shall cause a written notification of the commission's final jurisdictional determination to be sent to the complainant, the respondent, and any identified person whose contact information is listed on the complaint form or is reasonably ascertainable. (i) If the commission determines that a complaint is not within the commission's jurisdiction, the commission may refer the complaint to the city auditor for possible investigation. (ii) If the commission refers a complaint to the city auditor under this subsection, the written notification required under subsection (F)(2)(b) shall state that the commission has referred the complaint to the city auditor for possible investigation. (c) If the commission overturns the chair's initial determination and determines that a complaint is within the commission's jurisdiction, the chair shall set the complaint for a preliminary hearing not later than the 60th day after the commission's determination, unless agreed to by the parties or by a vote of the commission. Subsection (F)(1)(a) and (b) shall govern the sending of notices and granting of postponements. (I) The commission may consider a possible violation of a provision within the jurisdiction of the commission on the commission's own initiative. Not later than the 10th working day after the commission's decision to consider a possible violation, the commission shall draft a written complaint specifying each code section or charter provision alleged to have been violated, shall file a copy of the complaint with the city clerk, and shall provide a copy of the complaint to the city attorney, the respondent, and any identified person whose contact information is obtained by the commission. A complaint initiated by the commission need not be sworn. (1) The chair shall set the complaint for preliminary hearing not later than the 60th day after the complaint is filed with the city clerk, unless agreed to by the respondent or by a vote of the commission. (2) Not later than the 10th working day prior to the meeting, the chair shall cause a written notice of the date of the preliminary hearing to be sent to the respondent and to any identified person whose contact information has been obtained by the commission. (3) For good cause, the chair may postpone a scheduled preliminary hearing under this subsection on the request of the respondent or an identified person. (J) A member of the commission may not take any part in a deliberation, vote, or decision regarding a sworn complaint alleging a violation by the council member that nominated the commission member. Source: 1992 Code Section 2-3-41; Ord. 031204-9; Ord. 031211-11; Ord. 20120426-084; Ord. No. 20160922-005, Pt. 2, 6-1-17; Ord. No. 20170209-005, Pt. 10, 2-20-17; Ord. No. 20170209-005, Pt. 11, 6-1-17; Ord. No. 20180510-014, Pt. 1, 5-21-18.

Austin City Code § 2-7-42 DEFENSE OF OFFICIAL OR EMPLOYEE BY CITY ATTORNEY.

§ 2-7-42 - DEFENSE OF OFFICIAL OR EMPLOYEE BY CITY ATTORNEY. In the event a complaint is filed with the Ethics Review Commission against any official or employee of the City, alleging a violation of Article 4 (Code of Ethics), if the official or employee reasonably believed the conduct charged was not prohibited by Article 4 (Code of Ethics) and acted in reasonable reliance upon a public opinion rendered by the city attorney, the city attorney shall be authorized to represent the official or employee before the commission, or to employ and pay private counsel to represent the official or employee before the commission. Source: 1992 Code Section 2-3-42; Ord. 031204-9; Ord. 031211-11.

Austin City Code § 2-7-43 PROHIBITION OF EX PARTE COMMUNICATIONS.

§ 2-7-43 - PROHIBITION OF EX PARTE COMMUNICATIONS. After a complaint has been filed and during the pendency of a complaint before the Ethics Review Commission, a member of the commission may not communicate directly or indirectly with any party or person about any issue of fact or law regarding the complaint, except at a meeting of the commission. This prohibition does not prohibit a communication by a city employee with the commission in the performance of the city employee's official duties. Source: 1992 Code Section 2-3-43; Ord. 031204-9; Ord. 031211-11; Ord. No. 20180510-014, Pt. 2, 5-21-18.

Austin City Code § 2-7-44 PRELIMINARY HEARING.

§ 2-7-44 - PRELIMINARY HEARING. (A) The issue at a preliminary hearing shall be the existence of reasonable grounds to believe that a violation of a provision within the jurisdiction of the Ethics Review Commission has occurred. The complainant, or the legal counsel for the Ethics Review Commission in cases considered on the commission's own initiative, shall state the alleged violation and shall describe in narrative form the testimony and other evidence which would be presented to prove the alleged violation as stated in the written complaint. Statements at a preliminary hearing shall be under oath, but there shall be no cross-examination or requests for persons or evidence issued for the hearing. Members of the commission may question the complainant, legal counsel for the commission, or the respondent. (B) The respondent shall have the opportunity to respond but is not required to attend or make any statement. The respondent may describe in narrative form the testimony and other evidence which would be presented to disprove the alleged violation. If the respondent agrees that a violation has occurred, the respondent may so state and the commission may consider the appropriate sanction or prosecution. (C) The complainant and the respondent shall have the right of representation by counsel. (D) At the conclusion of the preliminary hearing, the commission shall decide whether a final hearing should be held. If the commission determines that there are reasonable grounds to believe that a violation within the jurisdiction of the commission has occurred, the commission shall schedule a final hearing. If the commission does not determine that there are reasonable grounds to believe that a violation has occurred, the complaint is dismissed. A decision to conduct a final hearing is not a finding that a violation has occurred. (E) The commission, at any time during the preliminary hearing, may also dismiss a complaint if the complaint does not allege conduct which would be a violation of a provision within the jurisdiction of the commission. Before a complaint is dismissed for failure to allege a violation, the complainant or the legal counsel for the commission shall be permitted one opportunity, within a period to be specified, to revise and resubmit the complaint. (F) The complainant, legal counsel for the commission, and the respondent may ask the commission at a preliminary hearing to request certain persons and evidence for a final hearing, if one is scheduled. Source: 1992 Code Section 2-3-44; Ord. 031204-9; Ord. 031211-11; Ord. 20120426-084; Ord. No. 20170209-005, Pt. 12, 2-20-17.

Austin City Code § 2-7-45 FINAL HEARING.

§ 2-7-45 - FINAL HEARING. (A) Unless otherwise agreed to by the parties or by a vote of the commission, the final hearing shall be held not later than the 60th day after the determination by the commission that there are reasonable grounds to believe that a violation within the jurisdiction of the commission has occurred. (B) For good cause, the chair may postpone a scheduled final hearing on the request of the complainant, the respondent, or an identified person. (C) The complainant and respondent must attend a final hearing. If the respondent fails to attend, the commission may proceed with the final hearing at the commission's discretion. (D) The issue at a final hearing shall be whether a violation within the jurisdiction of the commission has occurred. The commission shall make its determination based on the preponderance of the credible evidence in the record. All parties and witnesses shall make their statements under oath. (E) If the commission determines that a violation has occurred, the commission shall state the commission's findings in writing, shall identify each code section or charter provision that has been violated, and, not later than the 10th working day after the final hearing, the chair shall cause a copy of the commission's findings to be sent to the complainant, if any, to the respondent, to any identified person whose contact information is listed on the complaint form or is reasonably ascertainable, and to the city clerk. Source: 1992 Code Section 2-3-45; Ord. 031204-9; Ord. 031211-11; Ord. 20120426-084; Ord. No. 20170209-005, Pt. 13, 2-20-17.

Austin City Code § 2-7-46 OATHS AND REQUESTS FOR INFORMATION.

§ 2-7-46 - OATHS AND REQUESTS FOR INFORMATION. (A) Subject to the limitations in this section, if a complaint proceeds to a final hearing, the commission may subpoena or request witnesses to attend and testify, administer oaths and affirmations, take evidence, and subpoena or request the production of books, papers, records, or other evidence needed for the performance of the commission's duties or exercise of its powers, including its duties and powers of investigation. (B) Before the commission may issue a subpoena, the commission shall submit a written request for a person to appear before them, for the production of documents, or for any other evidence. All city officials and employees will cooperate with the commission to assist it in carrying out its charge, and must supply requested testimony and documents if the documents are public records as set forth in the Public Information Act (Chapter 552 of the Texas Government Code) or other applicable law. Identifying information about any informant or witness in documents provided to the commission must be redacted. (C) The commission may issue a subpoena on its own or upon request of a complainant or respondent. If requested by a party to the complaint, the party must make a sworn request and state that the party in good faith believes that such item or testimony exists. The party must provide a detailed description of any requested items or testimony sufficient to be able to identify the items or information; must state that the party has attempted to obtain such items or information otherwise; and, that the party in good faith believes that the person or entity whose name and address is specified in the sworn request does possess or control the requested item or information. (D) Any subpoena issued by the commission is subject to the following requirements: (1) the subpoena may only be served within the Austin-Round Rock Metropolitan Statistical Area defined as Travis, Williamson, Bastrop, Hays, Burnet, and Caldwell; (2) may not be served on a current City employee; (3) may not be served on current or former staff in the Law Department or outside legal counsel retained by the City; and, (4) may not include a request for documentation which the city could withhold under the Public Information Act (Chapter 552 of the Texas Government Code). (E) Objection to subpoena. If a subpoena is issued upon the request of a party to the complaint, a person may object to a subpoena within seven working days after receiving the subpoena. Objections to subpoenas must be in writing and submitted to the city clerk. Not later than the fifth working day after the city clerk receives the objection, the city clerk shall acknowledge the receipt of the objection to the subpoena and provide a copy of the objection to the city attorney, the chair of the commission, the complainant and the respondent. If the commission issued the subpoena upon request of the complainant or respondent, the complainant or respondent shall within three working days after receipt of the objection provide a written response to the city clerk. The city clerk shall provide notice of receipt of a response to the objection in the same manner as receipt of an objection as set forth in this subsection. The commission shall rule on the objection. If a person to whom the subpoena is properly issued fails to object to a subpoena within the time specified in this section, the person waives any objection to the subpoena. (F) Appeal. A person that is a party to the complaint or subject of a subpoena may appeal the commission's decision on an objection to a subpoena to the Audit and Finance Committee of the City Council by filing an appeal with the City Clerk's office no later than ten days after the commission's decision. The request for an appeal must include a concise statement detailing the reasons the person believes the commission's decision should be overruled. The City Clerk will distribute the request for an appeal in the same manner described in subsection (E) above. The staff assigned to the commission will place the appeal on the next available committee agenda in accordance with the council's committee meeting procedures. The committee may vote to adopt, reject or modify the decision of the commission. A member of the Council may not take any part in a deliberation, vote, or decision regarding a subpoena issued to the council member or is issued in a complaint alleging a violation by the council member or a member of their staff. (G) The commission may request assistance from the city auditor with the investigation of allegations in a complaint. (H) The commission may consider the city auditor's investigation at a final hearing on a complaint. Source: 1992 Code Section 2-3-46; Ord. 031204-9; Ord. 031211-11; Ord. No. 20170209-005, Pt. 14, 2-20-17; Ord. No. 20180510-014, Pt. 3, 5-21-18.

Austin City Code § 2-7-47 PROSECUTION.

§ 2-7-47 - PROSECUTION. If the Ethics Review Commission determines that a violation of a provision subject to a criminal penalty has occurred, the commission shall deliver a copy of the commission's findings to the complainant, if any, the respondent, and the city attorney and may recommend prosecution or set forth requirements to be complied with in order that voluntary compliance may be had and final determination obtained. Source: 1992 Code Section 2-3-47; Ord. 031204-9; Ord. 031211-11; Ord. 20120426-084; Ord. No. 20170209-005, Pt. 15, 2-20-17.

Austin City Code § 2-7-48 SANCTIONS.

§ 2-7-48 - SANCTIONS. (A) This section applies only to violations other than violations of Chapter 2-2 (Campaign Finance) and Article III, Section 8, of the City Charter (Limits on Campaign Contributions and Expenditures). (B) If the Ethics Review Commission determines that a violation of Sections 2-7-62 (Standards of Conduct), 2-7-63 (Prohibition on Conflict of Interest), 2-7-64 (Disclosure of Conflict of Interest), and 2-7-65 (Substantial Interest of Relative) occurred, it shall proceed directly to determination of the appropriate sanction(s). A violation of Sections 2-7-62 (Standards of Conduct), 2-7-63 (Prohibition on Conflict of Interest), 2-7-64 (Disclosure of Conflict of Interest), 2-7-65 (Substantial Interest of Relative), 2-7-46 (Oaths and Requests for Information), and subsection (D) of Section 2-7-41 (Complaints) shall not be subject to criminal penalties under the City Code. The commission may receive additional testimony or statements before considering sanctions but is not required to do so. If the respondent acted in reliance upon a public written opinion of the city attorney, the commission shall consider that fact. (C) If the commission determines that a violation has occurred, the commission may impose or recommend the following sanctions: (1) A letter of notification is the appropriate sanction when the violation is clearly unintentional, or when the respondent's conduct complained of was made in reliance on a public written opinion of the city attorney. A letter of notification must advise the respondent of any steps to be taken to avoid future violations. The commission may direct a letter of notification to any official or employee covered by this chapter. (2) A letter of admonition is the appropriate sanction if the commission finds that the violation is minor or may have been unintentional, but calls for a more substantial response than a letter of notification. The commission may admonish any official or employee covered by this chapter. (3) A reprimand is the appropriate sanction when the commission finds that a violation has been committed intentionally or through disregard of this chapter. The commission may reprimand any official or employee covered by this chapter. A reprimand directed to a City official shall also be sent to the city council. A reprimand directed to an employee shall be sent to the city manager and included in said employee's personnel file. (4) A recommendation of removal from office or a recommendation of suspension from office, including a recommendation for the length of a suspension, is the appropriate sanction when the commission finds that a serious or repeated violation of this chapter has been committed intentionally or through culpable disregard of this chapter. A recommendation regarding an unsalaried City official or a salaried official appointed by the city council shall be transmitted by the commission to the city council. The final authority to carry out a recommendation regarding an unsalaried City official or of a salaried official appointed by the city council is the city council. A recommendation regarding a City employee shall be directed by the commission to the city manager. The final authority to carry out a recommendation regarding a city employee is the city manager. (5) A letter of censure or a recommendation of recall is the appropriate sanction when the commission finds that a serious or repeated violation of this chapter has been committed intentionally or through culpable disregard of this chapter by an elected City official. A letter of censure or a recommendation of recall directed to an elected City official shall be transmitted by the commission to the city clerk, published by the city clerk in a local newspaper of the largest general circulation, and shall be sent by the commission to the city council. Source: 1992 Code Section 2-3-48; Ord. 031204-9; Ord. 031211-11; Ord. 20120426-084; Ord. No. 20180510-014, Pt. 4, 5-21-18.

Austin City Code § 2-7-49 CAMPAIGN VIOLATIONS.

§ 2-7-49 - CAMPAIGN VIOLATIONS. (A) This section applies to violations of Chapter 2-2 (Campaign Finance) and Article III, Section 8, of the City Charter (Limits on Campaign Contributions and Expenditures). (B) If the Ethics Review Commission determines that a violation of a provision to which this section applies has probably occurred: (1) the commission may recommend that the city attorney prosecute the violation; (2) request the appointment of a special prosecutor in cases where it finds this action necessary, with funding provided by the City; or (3) if the commission finds that the violation is minor, clerical, or may have been unintentional, the commission may recommend that the violation not be prosecuted or be prosecuted only if the violation is not corrected. (C) The commission may consider a violation's severity, frequency, or intentional nature. (D) If a respondent is an entity, the commission may find that an individual has violated a provision subject to the section. (E) This section does not require the commission to make a recommendation with respect to a complaint. (F) The commission may draft and publish a letter of notification, a letter of admonition, a reprimand, or a letter of censure to a respondent found to have violated a provision subject to this section. The Commission shall apply the criteria in Section 2-7-48 (Sanctions) to determine the appropriate sanction to impose. (G) This section does not limit the prosecutorial discretion of the city attorney. Source: Ord. 20120426-084; Ord. No. 20160922-005, § 3, 6-1-17; Ord. No. 20170209-005, Pt. 16, 2-20-17.

Austin City Code § 2-7-50 LOBBYING VIOLATIONS.

§ 2-7-50 - LOBBYING VIOLATIONS. (A) This section applies to violations of Chapter 4-8 (Regulation of Lobbyists). (B) For an allegation in a complaint relating to a violation of Chapter 4-8, the commission shall hold only a preliminary hearing, and shall not hold a final hearing. (C) The commission shall refer an allegation for which the commission finds a reasonable basis to believe that there may be a violation to the city attorney for prosecution. (D) This section does not limit the prosecutorial discretion of the city attorney. Source: Ord. No. 20160922-005, Pt. 4, 6-1-17.

Source: City of Austin, City Code and City Charter (Municode Library, library.municode.com)URL: https://library.municode.com/tx/austin/codes/code_of_ordinances?nodeId=TIT2AD_CH2-7ETFIDI_ART3VICOHEPRFetched: 10/27/2026