§11-216  Complaints, investigation, andnotice; determination.  (a)  Complaints of violations of this subpartagainst any person shall be filed with the commission.  The complaint shall bein writing and shall be signed under oath by the complainant.  Complaintsinitiated by the commission shall be in writing and signed by the executivedirector.

(b)  The commission shall give notice ofreceipt of the complaint together with a copy of the complaint to the personcited and shall afford the person an opportunity to explain or otherwiserespond to the complaint at a meeting promptly noticed by the commission andconducted under chapter 92.  The commission shall promptly determine, withoutregard to chapter 91, to summarily dismiss the complaint, cause furtherinvestigation, make a preliminary determination, or refer the complaint to anappropriate prosecuting authority for prosecution under section 11-229.

(c)  Upon hearing the response of the personcited, if the person elects to respond to the complaint, and upon completion ofany investigation, the commission may make a prompt preliminary determinationas to whether probable cause exists that a violation of this subpart has beencommitted.  In lieu of an administrative determination that a violation of thissection has been committed, the commission may refer the complaint to theattorney general or county prosecutor pursuant to section 11-229 at any time itbelieves that the person cited may have intentionally, knowingly, or recklesslycommitted a violation.

(d)  If the commission makes a preliminarydetermination that there is probable cause to believe that a violation of thissubpart has been committed, its preliminary determination with findings of factand conclusions of law shall be served upon the person cited by certifiedmail.  The person shall be afforded an opportunity to contest the commission'spreliminary determination of probable cause by making a request for a contestedhearing under chapter 91 within twenty days of receipt of the preliminary determination. Failure to request a contested hearing will result in the commission'spreliminary determination being deemed a final determination of violation.

(1)  Any person who appears before the commissionshall have all of the rights, privileges, and responsibilities of a witnessappearing before the courts of this State.  All witnesses summoned before thecommission shall receive reimbursements as paid in like circumstances in thecourts of this State.  Any person whose name is mentioned during a proceedingof the commission and who may be adversely affected thereby, may appearpersonally before the commission on the person's own behalf or file a writtenstatement for incorporation into the record of the proceeding.

(2)  The commission shall cause a record to be made ofall proceedings pursuant to this subsection.  Any hearing conducted by thecommission to contest the preliminary determination of probable cause shall beconducted pursuant to chapter 91 and any rules adopted by the commission.  All contestedhearings shall be heard before the commission or a duly designated hearingsofficer.

(3)  All parties shall be afforded full opportunity topresent evidence and argument on all issues involved.  The commission orhearings officer, if there is no dispute as to the facts involved in aparticular matter, may permit the parties to proceed by memoranda of law inlieu of a hearing unless the procedure would unduly burden any party or isotherwise not conducive to the ends of justice.  The commission shall not bebound by strict rules of evidence when conducting a hearing to determinewhether a violation of this subpart has occurred, and the degree or quantum ofproof required shall be a preponderance of the evidence.

(4)  A hearings officer shall render a recommendeddecision for the commission's consideration and any party adversely affected bythe decision may file written exceptions with the commission within fifteendays after receipt of a copy of the decision by certified mail.

(5)  The commission, as expeditiously as possible,after the close of the hearing, shall issue its final determination ofviolation together with separate findings of fact and conclusions of lawregarding whether a violation of this subpart has been committed.

(e)  In the event the commission makes a finaldetermination that a violation of this subpart does not exist, the complaintshall be dismissed.

(f)  If the commission renders a finaldetermination of violation, its written decision with findings of fact andconclusions of law may also provide, without limitation the following orders:

(1)  The return of any contribution;

(2)  The reimbursement of any unauthorizedexpenditure;

(3)  The payment of any administrative fine payable tothe general fund of the State;

(4)  Cease and desist violation of this subpart; or

(5)  File any report, statement, or other informationas required by this subpart.

(g)  The commission may waive furtherproceedings because of action the person cited or respondent takes to remedy orcorrect the alleged violation, including the payment of any administrativefine.  The commission shall make the remedial or corrective action taken by therespondent, the commission's decision in light of the action to waive furtherproceedings, and the commission's justification for its decision, a part of thepublic record. [L 1979, c 224, pt of §2; am L 1980, c 232, §1; gen ch 1985; amL 1987, c 369, §1(13); am L 1988, c 141, §3; am L 1989, c 138, §2; gen ch 1993;am L Sp 1995, c 10, §2(19) and c 27, §§7, 15; am L 1999, c 96, §12 and c 141,§3; am L 2008, c 244, §32]

 

Case Notes

 

  Subsection (d)'s prohibition on complainant publiclydisclosing that complaint was filed with campaign spending commission and onother disclosures by third parties unconstitutionally overbroad.  30 F.3d 1115.

  To the extent that an individual is prevented from disclosingthat the individual filed a complaint with the campaign spending commission,subsection (d) is an unconstitutional restriction on free speech.  30 F.3d1115.