RESOLUTION NO. 72547
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN JOSE AMENDING
REGULATIONS AND PROCEDURES FOR THE SAN JOSE ELECTIONS COMMISSION
INVESTIGATIONS AND HEARINGS
WHEREAS, the San Jose Elections Commission (Commission),
is charged under Chapter 12.04 of the San Jose Municipal Code
to investigate complaints alleging violations of Title 12
of the San Jose Municipal Code and take enforcement action
where appropriate; and
WHEREAS, formal regulations are required to ensure that all
interested parties are apprised of and understand the procedures
by which a fair hearing will be conducted.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SAN JOSE:
SECTION 1: The following Regulations and Procedures as amended
are hereby adopted and shall govern all proceedings before
the San Jose Elections Commission (Elections Commission or
REGULATIONS AND PROCEDURES FOR SAN JOSE ELECTIONS COMMISSION
INVESTIGATIONS AND HEARINGS
These Regulations and Procedures of the San Jose Elections
Commission are promulgated in order to ensure the fair, just,
and timely resolution of complaints presented to the Commission
that allege violations of City ordinances relating to campaign
finance, lobbying, conflicts of interest and governmental
1. Setting and maintaining objective standards for the investigation
and determination of matters brought before the Commission;
2. Eliminating any improper influence in the investigation
and determinations of persons alleged to have committed ethics
3. Assuring reasonable time frames within which enforcement
proceedings should be completed;
B. DEFINITION OF TERMS
For purposes of these Regulations and Procedures, the following
definitions shall apply:
1. "Elections Commission" or “Commission”
means the San Jose Elections Commission
2. "Complainant" means a person or entity that files
3. “Complaint” means the Elections Commission
Complaint Form, completed by the complainant, which is on
file with the City Clerk.
4. “Candidate” means a person who is running for
City Office or is City elected officeholder.
5. "Day" means calendar day, unless otherwise specifically
6. “Election Cycle” is that period of time from
the date when a candidate files a Statement of Intention to
be a Candidate to an office in accordance with Government
Code § 85200 and until a candidate has been elected to
7. "Ethics Ordinances” shall mean all ordinances
found in Title 12 of the San Jose Municipal Code.
8. “Evaluator” means a person who is neutral,
impartial, who meets the qualifications in Section C and D
and who has been retained as provided herein.
9. "Exculpatory information" means information tending
to show that the Respondent is not guilty of the alleged violations.
10. "Mitigating information or circumstances" means
information or circumstances tending to excuse or reduce the
significance of the Respondent's conduct.
11. “Preliminary Investigation” is that investigation
conducted by the Evaluator or attorney member of the Commission
prior to any presentation to the Commission.
12. "Respondent" means a person or entity that is
alleged in a complaint to have violated an Ethics Ordinance.
C. HIRING OF THE EVALUATOR
1. The San Jose Elections Commission shall submit to the
City Council a budget request in advance of each election
cycle which will enable the City Council to appropriate funds
anticipated to be needed for the Evaluator for a period of
2. The Commission shall prepare and issue a Request for Qualifications/Quotes
for an Evaluator in advance of the election cycle.
3. The Evaluator must have a legal background and experience
with ethics, election or political law.
4. The Evaluator must be neutral and impartial and must not
appear to have any reason for any bias or favoritism towards
any Councilmember or candidate in any way.
5. The Commission shall select the Evaluator and present the
contract with the selected candidate to the Council for approval
of the contract on a public agenda.
6. The Contract shall have a two year term.
7. The Contract with the Evaluator shall be subject to termination
at the pleasure of the Commission.
8. The Contract shall be terminated if any circumstances arise
which in the judgment of the Commission would compromise the
appearance of neutrality.
D. HIRING OF AN EVALUATOR/INVESTIGATOR
1. In addition to the Evaluator, the Elections Commission
is authorized to hire an independent Evaluator/Investigator
(“Investigator”) by contract executed by the City
2. The Commission shall prepare and issue a Request for
Qualifications/Quotes for the Investigator to conduct investigations
or assist with investigations of complaints which are assigned
by the Elections Commission and to monitor compliance with
the requirements of Title 12 of the San Jose Municipal Code
as requested by the Elections Commission.
3. The Investigator must have experience in conducting investigations
such as law enforcement, ethics or employment related investigations.
Further, familiarity with conflict of interest, campaign finance,
and lobbying laws is desirable.
4. The Investigator must be neutral and impartial and must
not appear to have any reason for any bias or favoritism towards
any elected official of the City and must be willing to forego
all personal involvement in political campaigns in the County
of Santa Clara.
5. The contract with the Investigator shall be subject to
termination at the pleasure of the Commission.
6. The contract shall be terminated if any circumstances
arise which in the judgment of the Commission would compromise
the appearance of neutrality.
7. The contract with the Investigator shall be administered
by the City Clerk.
8. For purposes of the investigation of complaints by the
Investigator, the provisions of these Regulations and Procedures
which are applicable to the Evaluator shall also apply to
E. COMPLAINTS OF ALLEGED VIOLATIONS
1. Any person may file a complaint alleging possible violations
of the City Campaign and ordinances set forth in Title 12
of the San Jose Municipal Code.
2. Complaints shall only be filed with the City Clerk who
shall act as the Secretary to the Commission.
3. Complaints must be filed on a complaint form, approved
by the Commission, and available in the Office of the City
Clerk. The City Clerk may accept complaints by letter or electronic
mail which provide the specificity and detail as required
in this Section.
4. All complaints which are filed shall be forwarded promptly
to the Evaluator by the City Clerk.
5. A complaint shall provide as much specificity and detail
as possible, including facts constituting the alleged violations,
the name and address of the person who is alleged to have
violated an ordinance and the names and addresses of potential
6. The complaint may be filed anonymously, but in this situation,
the complainant must state good cause for anonymity. The Evaluator
and the Commission may consider the anonymous nature of the
complaint, and the reasons given for anonymity in their considerations
of such complaint.
7. Complaint forms shall be filed with the City Clerk in person
during business hours, by mail or by facsimile.
8. If a member of the Commission is a complaining party,
that member's right to participate is the same as any other
9. A member of the Commission who files a complaint may participate
and vote on a matter concerning such complaint except in the
a. Where the member of the Commission filing the complaint
is a witness who was interviewed by the Commission’s
Evaluator during the investigation of the complaint because
of the member’s personal knowledge of the alleged
b. Where a member of the Commission files a complaint based
on the member’s personal knowledge of facts and circumstances
beyond the member’s information and belief that there
may be a violation of the San Jose Municipal Code.
F. REVIEW OF COMPLAINTS BY EVALUATOR
1. The Evaluator shall notify the Respondent of the allegations
and provide the Respondent with a complete copy of the complaint
immediately upon the receipt of the complaint, unless the
Evaluator determines that it is necessary to delay the notification
in order not to compromise the investigation.
2. The Evaluator shall review every complaint to determine
whether sufficient cause exists to conduct a preliminary investigation.
Sufficient cause shall exist when a complaint identifies specific
facts, which if proven, would be a violation of the Municipal
Code. No investigation shall be conducted if the complaint
does not contain sufficient facts to demonstrate a potential
violation, if the facts would not amount to a violation of
law or if identical allegations which have already been addressed
in a prior investigation
3. Complaints which allege violations which have occurred
more than four years prior to the date of filing will not
be considered by the Commission.
4. Except as provided in this Subsection 4, the Evaluator
shall refer any complaint where the Respondent is a classified
or unclassified employee appointed by a City Council Appointee
to the appointing authority for investigation and action.
The Commission shall take no further action on the complaint
with regard to the Employee. Any City Employee who is a candidate
for City office shall be treated as any other candidate for
purposes of Chapter 12.06 of the San Jose Municipal Code.
5. If the Complaint, on its face, does not warrant a preliminary
investigation, the Evaluator shall advise the Chair. The Chair
will schedule the Evaluator’s report and recommendation
on a Commission Agenda for approval.
6. If the Commission, upon reviewing the Evaluator's determination
of lack of sufficient cause, determines that the complaint
identifies specific facts which if proven would be a violation
of the Municipal Code, the Commission shall direct the Evaluator
to commence an investigation.
7. If sufficient cause is found by the Evaluator, or on review
by the Commission, the Evaluator shall conduct an investigation.
Such investigation may include, but shall not be limited to,
the interview of the Respondent(s) and any witnesses, as well
as the review of documents and other evidence.
8. When the Evaluator concludes an investigation, the Evaluator
shall prepare a written Report and Recommendation. The Report
shall contain a summary of law and evidence gathered through
the investigation, including any exculpatory and mitigating
information. The Evaluator may consider all relevant facts
and evidence including, but not limited to hearsay evidence,
and shall include in the Report all facts bearing on the weight
accorded the evidence. The Report shall state whether the
Evaluator concludes that a Respondent did or did not violate
City law. Recommendations may include actions to be taken
by the Commission or there would be further investigation
conducted by the Evaluator.
9. No complaint, investigative file or information contained
therein, shall be disclosed to any person other than a Respondent
or Respondent's representative, the City Attorney, District
Attorney, a court, a law enforcement agency, or otherwise
as necessary to the conduct of an investigation, prior to
the presentation of the Report and Recommendations to the
Commission. The Evaluator, however, may communicate with the
Chair of the Commission on procedural matters relating to
a pending complaint during the course of the investigation.
After the Report is presented, complaints, related documents,
and investigative files shall not be disclosed except as required
by the California Public Records Act (Government Code §§
6250 et seq. ).
10. If an Evaluator is unable to review or investigate a
complaint, the attorney member of the Commission may review
or investigate complaints in accordance with the provisions
of this Section. In such case, the attorney member may not
participate in the Commission’s investigations and hearings
as set out in these Regulations and Procedures.
G. COMMISSION HEARING
1. The Evaluator will advise the Chair of the Commission
to set a Hearing at the earliest practicable date.
2. The City Clerk shall notify persons who filed the complaint
and the Respondent of the date and time of the meeting at
which the complaint will be reviewed by the Commission.
3. The Evaluator’s Report and Recommendations shall
be delivered to the Commission, the Respondent and all interested
parties who request the Report, 72 hours in advance of the
Commission Hearing, if possible.
4. The Commission shall consider the Report and Recommendation
of the Evaluator as well as any other evidence presented at
5. The Respondent may, but need not, submit a written response
to the Report and Recommendations. The response may contain
legal arguments, a summary of evidence and any mitigating
or exculpatory information.
6. The Respondent who chooses to submit a response must deliver
the response 24 hours in advance of the Commission Hearing,
if possible. The Respondent must deliver a total of eight
copies of the response to the City Clerk for distribution
to the Commission and the Evaluator.
7. The Respondent may appear before the Commission personally
or be represented by counsel or any other person.
8. The formal Rules of Evidence shall not apply to the Hearing.
9. All testimony presented to the Commission shall be under
oath or affirmation.
10. All questions of witnesses or the Evaluator shall be presented
by the Commission members through the Chair.
11. The Commission, if necessary, may compel the testimony
of witnesses and may compel the production of relevant documents
to the Evaluator by subpoena, but this power may be used only
as a last resort, after good faith efforts to acquire the
relevant information have failed and upon a finding that the
information or testimony is essential for a determination
in the matter.
12. The Chair of the Commission, after consultation with
the Evaluator, may subpoena witnesses and compel their attendance
and testimony and require by subpoena the production of any
books, papers, records or other items at a scheduled Commission
hearing or meeting. Use of the subpoena power by the Chair
shall be used only after a written determination that the
information or testimony is essential for a determination
and material to to the duties and/or exercise of the powers
of the Commission and that good faith efforts to acquire relevant
information have failed.
13. Except as otherwise provided above, individual members
of the Commission may not investigate complaints nor discuss
pending complaints with anyone except during the course of
14. The Complainant is to be treated like any other witness
in providing evidence. Any interested person can submit a
brief to the Commission or any written argument 24 hours before
the Commission convenes to considers the complaint, if possible.
The brief or written argument must be simultaneously provided
to the Respondent.
15. The Hearing shall be recorded by the City Clerk.
16. The Hearing shall be open to the public. Witnesses may
be excluded at the discretion of the Commission.
17. Prior to a final determination on the merits of a complaint,
there shall be no oral or written communications regarding
the merits of a complaint with any person or entity unless
the communication is necessary for the conduct of the investigation
or except as otherwise provided above. After a final determination,
the Commission shall issue a written report or statement and
any member of the Commission can issue a dissenting Report
either individually or jointly. After the final determination,
the Chair shall be the sole contact with the public and media.
H. SCHEDULING AND NOTICE OF HEARING ON MERITS
1. This process is to be completed at the earliest possible
time. While timelines cannot be precise because of the nature
of an investigation, timeliness is paramount.
a. If the Evaluator does not find sufficient cause then
the Evaluator’s Report to the Commission shall be
issued in no more than 7 days from receipt of the complaint.
b. The investigation must be completed in time for a Commission
Hearing in no more than 2 weeks from receipt of the complaint.
2. Time Extensions
Whenever an action is required to be completed by a particular
time pursuant to these Regulations or an order of the Commission,
the Evaluator or Respondent may request an extension of time.
Requests for extensions of time may be made to the Chair.
The Chair may grant the request only upon a showing of good
I. ROLE OF THE CHAIR
1. Procedural Hearing Matters
a. The Chair shall make procedural determinations including
but not limited to the scheduling of hearings, time extensions
and order of witnesses.
b. The Chair is free to consult with the Evaluator and
the City Attorney on procedural matters. The Chair may also
discuss procedural matters ex parte with the Respondent.
c. The Chair shall be the sole contact with the public.
The Evaluator shall refer all media inquiries to the Chair.
J. COMMISSION - FINDINGS
1. If the Commission concludes that further investigation
is necessary, it shall direct the Evaluator or attorney member
of the Commission if appropriate, to conduct further investigation
and to report back to the Commission.
2. Upon conclusion of the final Hearing, the Commission shall
issue its findings by Resolution.
3. If the Commission determines that there is sufficient
evidence to establish that no violation has occurred, the
Commission shall publicly announce this fact.
4. If the Commission determines that that there is insufficient
evidence to establish that a violation has occurred the Commission
shall publicly announce this fact.
5. A determination that a violation has occurred shall be based
on a preponderance of the evidence from the entire record of
6. Each Commission member who participates in the decision shall
certify on the record that he or she personally heard or read
the testimony (either in person or by listening to a tape) and
reviewed the entire evidence in the record.
7. The Commission may refer the allegations and any information
gathered in the investigation to an appropriate law enforcement
8. The Commission shall not impose a penalty
if it is presented with clear and convincing evidence that,
prior to the alleged violation:
a. The Respondent had requested and obtained a written
opinion from the City Attorney or the FPPC; and
b. The Respondent, in requesting the opinion, disclosed
truthfully all the material facts pertinent to the case;
c. The Respondent committed the acts or violations alleged
in the complaint in good faith reliance upon the formal,
written opinion of the City Attorney or FPPC.
9. The City Clerk shall provide a copy of the Resolution of
the Commission's determination to the Respondent and Complainant.
10. The Decision of the Commission shall be the final administrative
determination of the City.
K. ADMINISTRATIVE ORDERS AND PENALTIES
1. If the Commission finds a violation, the Commission may:
a. Find mitigating circumstances and take no further action;
b. Issue a public statement or reprimand;
c. Impose a penalty in accordance with Chapter 12.04 of
the San Jose Municipal Code.
2. The votes of at least three Commission members who participated
in the decision of violation are required to impose orders
and penalties for a violation.
3. In determining if penalties should be imposed for violations
of Title 12 of the Municipal Code and the amount of any such
penalties, the Commission shall consider all the relevant
circumstances surrounding the case including:
a. The severity of the violation;
b. The presence or absence of any intention to conceal,
deceive, or mislead;
c. Whether the violation was deliberate, negligent or inadvertent;
d. Whether the violation was an isolated incident or pervasive
enough to indicate a pattern of disregard for this Chapter;
e. Whether the Respondent has a prior record of violations
of City law relating to campaign finance, lobbying, conflicts
of interest, or governmental ethics;
f. The degree to which the Respondent cooperated with the
g. Whether or not corrective actions were taken, if appropriate,
in accordance with the provisions of this Chapter.
L. REFERRALS TO OTHER ENFORCEMENT AGENCIES
At any time, the Evaluator or the Commission may refer the
matter to another government agency or official if the Commission
determines that the agency or official may more appropriately
resolve the allegations in the complaint or enforce the applicable
provisions of law. A copy of all information gathered by the
Commission staff shall be sent to the agency or official together
with the referral.
M. JUDICIAL REVIEW
1. The Resolution shall advise the Respondent that he or
she can seek judicial review of the Commission decision in
accordance with Chapter 1.16 of the San Jose Municipal Code.
2. Upon receipt of any complaint filed which challenges any
decision of the Commission, the City Attorney will decide
whether or not that Office has a conflict of interest, which
precludes the City Attorney from representing the Commission
in the action.
3. If the City Attorney determines that conflict exists,
the City Attorney shall retain conflicts counsel to defend
N. COLLECTION OF FINES
1. Fines imposed by the Commission must be paid within 100
days of the date of the Resolution. A cashiers check for the
specified amount shall be remitted to the City Clerk.
2. If the civil penalties are not paid within the time specified,
the Clerk should refer the debt to the Director of Finance
for submission to the City’s collection agency.
O. ROLE OF THE CITY ATTORNEY
1. The City Attorney may provide legal advice to the Commission
related to non-complaint matters or general interpretations
of the San Jose Municipal Code or relevant state or federal
law, but shall not participate in investigations or reviews
of complaints. (SJMC § 12.04.080).
2. The Chair or the Evaluator may consult with the City Attorney
at any time with regard to procedure or an interpretation
of the Code, in general, and not as it applies to facts that
are the subject of a pending complaint.
ADOPTED this 1st day of March, 2005, by the following vote:
AYES: CAMPOS, CHAVEZ, CHIRCO, CORTESE, LeZOTTE,PYLE,
REED, WILLIAMS, YEAGER; GONZALES
VACANT: DISTRICT 7
RON GONZALES Mayor
LEE PRICE, CMC City Clerk