Arkansas Administrative Code
Agency 153 - Arkansas Ethics Commission
Rule 153.00.01-004 - Rules of Practice and Procedure
Universal Citation: AR Admin Rules 153.00.01-004
Current through Register Vol. 49, No. 9, September, 2024
I. DESCRIPTION
The Arkansas Ethics Commission ("Commission") is composed of five appointed Commissioners who enforce certain ethics, conflicts of interest, lobbying, campaign, campaign finance, and ballot question laws within the State of Arkansas. In accordance with these rules of practice and procedure, the Commission issues advisory opinions and legal interpretations of law, and acts as fact-finder and sanctioning body for those alleged to have violated those laws under its jurisdiction. Information may be obtained from the Commission by written request. The Commission staff, which may consist of a director, staff attorney(s), director(s) of compliance and others, acts as the administrator and operating entity of the Commission. This staff, or members thereof, may make office administrative procedure, act as spokesman for the Commission, receive correspondence and correspond on behalf of the Commission, provide legal and other research to the Commission, investigate allegations of violations of laws under the Commission's jurisdiction, and perform such other functions as the Commission deems appropriate. These rules of practice and procedure shall govern all proceedings before the Commission and shall be applicable to any complaints filed or initiated after the effective date hereof. In accordance with Ark. Code Ann. § 25-15-204(c), any person may petition the Commission for the issuance, amendment, or repeal of any rule.
II. COMMISSION & STAFF
A.
Commission Organization
(1) The Commission shall consist of five (5)
Commissioners who shall be appointed as follows:
- one member by the Governor of the State of Arkansas
- one member by the Lieutenant Governor of the State of Arkansas
- one member by the Attorney General of the State of Arkansas
- one member by the Speaker of the Arkansas House of Representatives
- one member by the President Pro Tempore of the Arkansas Senate
(2) Pursuant to Ark.
Code Ann. §
7-6-217(b)(1),
the Commission shall, at all times, have among its members:
- one member of a minority race
- one woman
- one member of a minority political party
(3) Each Commissioner has a responsibility to
attend all regular and special meetings of the Commission. Any Commissioner who
fails to attend three (3) consecutive regular meetings shall be subject to
removal from the Commission pursuant to Ark. Code Ann. §
25-17-211.
(4) In accordance with Ark. Code Ann. §
7-6-217,
Commissioners shall be appointed for terms of five (5) years and they shall
continue to serve until their successors have been appointed and taken the
official oath. No person may be appointed to serve consecutive terms on the
Commission; provided, however, that any Commissioner who has been appointed to
serve two (2) years or less of an unexpired term shall be eligible for an
appointment to a subsequent five (5) year term.
(5) The Commission shall annually elect one
of its members to serve as chairman for a term of one (1) year. The Commission
may elect a vice-chairman and such other officers as a majority of the
Commissioners choose. The vice-chairman shall serve as chairman in the absence,
disqualification, or disability of the chairman.
(6) The election of officers shall be
conducted at the first regular meeting of the Commission following January 1 of
each year. The Commission may form such committees or subcommittees as it deems
necessary and/or appropriate to accomplish its legal aims and purposes. The
Commission may appoint one or more of its members to an unofficial committee or
subcommittee and may invite non-Commissioners to participate as unofficial
committee or subcommittee members.
(7) At each meeting of the Commission, three
(3) members shall constitute a quorum whether in person or by electronic or
telephonic means. However, an affirmative vote of at least three (3)
Commissioners physically present at a meeting is required before any
sanction(s) can be imposed. The vote of each member voting on any action shall
be a public record.
(8) A majority
of the members of the Commission present shall vote on any matter before the
Commission for any decision of the Commission to become effective. The
following matters shall be by motion, followed by a second, in order for a vote
of the Commission to be valid:
a. all matters
requiring affirmative action by the full Commission or one of its
members;
b. all decisions on public
positions taken by the full Commission;
c. all decisions on advisory opinions and
declaratory orders; and
d. all
decisions regarding findings of fact and conclusions of law or other actions
regarding a person accused of violating any laws under the Commission's
jurisdiction.
(9) The
Commission may, by majority vote, delegate the execution of any official duty
or action to its chairman, one of its members, or the director.
(10) A vacancy on the Commission shall not
impair the right of the Commission to exercise its statutory powers and
authority, subject to the requirement that a quorum be present and
participating before any action of the Commission shall be considered
valid.
(11) No Commissioner shall
be a federal, state or local government official or employee, an elected public
official, a candidate for public office, a lobbyist as defined in Ark. Code
Ann. §
21-8-402(11),
or an officer or paid employee of an organized political party as defined in
Ark. Code Ann. §
7-1-101(16).
(12) Each Commissioner, during the entire
term of his or her service on the Commission, shall be prohibited from
participating in, raising funds for, making contributions to, providing
services to, or lending his or her name in support of any candidate for
election to a state, district, county, municipal, or school board office or in
support of a ballot issue or issues submitted or intended to be submitted to
voters of the State of Arkansas, excluding the exercise of the right to vote or
the mere signing of an initiative or referendum petition. This prohibition
shall not extend to the spouse or family members of a Commissioner nor to his
or her business partners or professional associates.
(13) Unless required for the disposition of
ex parte matters authorized by law, the Commissioners shall
not communicate, directly or indirectly, in connection with any issue of fact
with any person, including the complainant and the respondent nor, in
connection with any issue of law, with either the complainant or respondent, or
their representatives, except upon notice and opportunity for the complainant
and respondent to participate.
B.
Staff
Organization
(1) The
Commission shall employ a director who shall serve at the will and pleasure of
the Commission.
(2) The director
shall employ a staff, with the consent of the Commission, to assist in the
administration of the Commission office.
(3) The director shall be responsible to the
full Commission and shall not be answerable to any member thereof. The director
shall ensure, however, that the chairman of the Commission is advised of the
progress and conduct of the employees and operation of the Commission
office.
(4) Though the director's
hiring of staff shall be with the consent of the Commission, such employees,
once approved for employment, shall be the responsibility of the director in
matters common to an employer/employee relationship, and the director shall be
responsible to the Commission for the actions of employees on the
staff.
(5) Each member of the
Commission staff, during the entire term of his or her service on the
Commission, shall be prohibited from participating in, raising funds for,
making contributions to, providing services to, or lending his or her name in
support of any candidate for election to a state, district, county, municipal
or school board office or in support of a ballot issue or issues submitted or
intended to be submitted to the voters of the State of Arkansas, excluding the
exercise of the right to vote or the mere signing of an initiative or
referendum petition. This prohibition shall not extend to the spouse or family
members of the employee.
C.
Meeting Times and
Sites
(1) Meetings shall
be regularly scheduled and held, subject to cancellation or re-scheduling by
majority vote of the members. The date, time and place of each regular meeting
shall be furnished to anyone who requests the information. Should there fail to
be a quorum at a scheduled meeting, then such meeting may be rescheduled by the
chairman provided all members are given reasonable notice of the date, time,
and place of the rescheduled meeting. Special meetings of the Commission may be
called by the chairman, provided that the majority of the members of the
Commission so consent. Commissioners may call a meeting by written request to
the chairman of any three Commissioners. In the event of a special meeting,
notification of the date, time and place of the meeting shall be given, at
least two (2) hours before the meeting takes place, to the news media located
in the county in which the meeting is to be held and those located elsewhere
that cover regular meetings of the Commission and have requested to be so
notified.
(2) The Commission may
vary its meeting site to accommodate its needs and accomplish its
purposes.
(3) The director shall
prepare a proposed agenda for each regular meeting, and the proposed agenda
shall be distributed to the Commission members prior to any such meeting. Any
Commissioner may add items to the agenda by notification to the director
twenty-four (24) hours before the scheduled meeting date. Any item may be added
to the agenda at any time with the unanimous consent of the
Commission.
D.
Meeting Procedure
(1) All meetings of the Commission shall be
governed by Robert's Rules of Order, except as may be modified by a majority of
the Commission members and by these rules of practice and procedure.
(2) Any Commissioner who has an actual
conflict of interest in any proceeding before the Commission shall recuse
voluntarily from any involvement in the matter. If a majority of the
Commissioners determines that one of its members has such a conflict, they may,
by affirmative vote, disqualify said member from participation in the
matter.
(3) All meetings of the
Commission, except as provided in subparagraph (D)(4) of this section or Ark.
Code Ann. §
25-19-106(c),
shall be open to the public.
(4)
Any portion of a Commission meeting at which citizen complaints, including
those filed by the Commission, are considered shall be in confidential session
and not open to the public. Following any such confidential session, the
Commission shall reconvene in public to vote on any matters constituting final
action.
(5) All records generated
or accepted by the Commission and its staff shall be open to public inspection,
except for:
(a) matters which are parts of
confidential investigations or inquiries, and
(b) the advice and opinions of the director
or staff attorney(s) when acting as the Commission's counsel on matters which
may be considered to have occurred in an attorney-client
relationship.
(6) All
proceedings, records, and transcripts of any investigations or inquiries shall
remain confidential and not subject to disclosure, unless:
(a) the respondent requests disclosure of the
documents;
(b) there is a public
hearing before the Commission; or
(c) there is judicial review of a Commission
decision. Provided, however, that the Commission may, through its members or
staff, disclose confidential information to proper law enforcement officials,
agencies, and bodies or as may be required to conduct its investigation.
Moreover, thirty (30) days after any final adjudication in which the Commission
makes a finding of a violation, all records relevant to the investigation and
upon which the Commission based its decision, except working papers of the
Commission and its staff, shall be open to public inspection.
III. GENERAL ADMINISTRATION
(1) The
Commission shall delegate to the director the authority to operate the
Commission office, with his or her duties enumerated by the Commission. Such
duties shall include, but not be limited to, the following:
a. Conducting general administration of the
Commission office and its staff in a businesslike and efficient manner. The
director shall periodically report to the Commission concerning the conduct and
operation of the office;
b.
Managing the appropriated budget of the Commission, and ensuring that all
expenditures from budgeted money are made within the law and general purposes
of the Commission. The director shall periodically report to the Commission
concerning the financial status of the office;
c. Preparing and maintaining files and
records on the activities, matters, and persons coming under the authority and
responsibility of the Commission.;
d. Preparing reports, studies, opinions,
policy statements, legal interpretations, and other matters as required by the
Commission;
e. Receiving and
responding to correspondence on behalf of the Commission on matters relating to
official Commission business;
f.
Managing travel, logistics, expenses, and reimbursement for Commissioners and
staff and scheduling seminars and training by or for the Commission; and
g. Ensuring that the Commission
office and its employees reflect good character, comply with the law, and carry
out other duties as may, from time to time, be enumerated by the
Commission.
IV. MATTERS BEFORE THE COMMISSION
A.
Advisory Opinions
(1) Advisory opinions, except those issued by
the Commission on its own initiative, shall be issued only in response to a
written request setting forth an inquiry into matters falling under the
jurisdiction of the Commission.
(2)
The Commission may, on its own initiative, direct the staff to prepare a draft
opinion, or it may accept a draft advisory opinion from the staff without first
receiving a request when the Commission determines the subject of the draft
opinion is of such public concern that an advisory opinion would benefit the
public.
(3) No advisory opinion
shall be valid, official, or have any effect unless same has been approved by a
vote of a majority of a quorum of the Commission.
(4) Any citizen shall be entitled to request
an advisory opinion from the Commission. Any request which meets these
procedural guidelines shall be responded to within ninety (90) days, unless
good cause be shown.
(5) The
response to opinion requests shall be prepared by the Commission staff and
shall be presented by staff to the full Commission for its consideration within
the time limit set forth above, unless good cause be shown.
(6) The Commission is not bound by or
obligated to release the conclusions or language of the staff's draft opinion
but may alter, amend, add to, or strike any portion of the draft opinion, or
may order that said draft opinion be tabled for future consideration or that it
be rewritten to comply with the Commission's directives, as the Commission
shall so decide.
(7) No draft
opinion prepared by the Commission staff shall be considered an official
opinion until it has received an affirmative vote of a majority of a quorum of
the Commission.
(8) The Commission
may reconsider, withdraw, or amend prior opinions upon request of a citizen, or
on its own motion, on a majority vote of a quorum of the Commission. In such
event, written notice shall be mailed to the citizen who originally requested
the opinion at the last address which that citizen provided to the
Commission.
(9) All advisory
opinions issued by the Commission shall be made available for public
inspection.
B.
Declaratory Orders
(1) The Commission shall, upon the filing of
a petition for declaratory order by any person subject to the Commission's
jurisdiction, promptly issue a declaratory order as to the applicability of any
rule, statute, or order enforced by it. Said petition shall contain the name,
mailing address, telephone number, and signature of the person requesting the
order and a full and complete statement of the facts or circumstances
applicable to that person. Such declaratory orders shall have the same status
as final orders of the Commission in cases of adjudication.
(2) No declaratory order shall be valid,
official, or have any effect unless same has been approved by a vote of a
majority of a quorum of the Commission.
(3) The Commission is not bound by or
obligated to release the conclusions or language of the staff's draft order but
may alter, amend, add to, or strike any portion of the draft order, or may
table said draft order for future consideration or request that it be rewritten
to comply with the Commission's directives, as the Commission shall so
decide.
(4) No draft order prepared
by the Commission staff shall be considered an official order until it has
received an affirmative vote of a majority of a quorum of the
Commission.
(5) The Commission may
reconsider, withdraw, or amend prior orders upon request of a citizen, or on
its own motion, on a majority vote of a quorum of the Commission.
(6) All declaratory orders issued by the
Commission shall be made available for public inspection.
C.
Monitoring Compliance
with Ethics and Disclosure Laws-Corrective Action Letters
(1) The Commission, through its staff, shall
periodically review documents required to be filed under the laws enforced by
the Commission.
(2) Persons who
have failed to file, filed late, or filed incomplete, false, or materially
misleading documents may be contacted in writing by the Commission or its staff
and advised to take corrective action. The contact and advice may be in lieu
of, or in addition to, other action(s) by the Commission under Ark. Code Ann.
§
7-6-218(b)(4).
(3) If the Commission or its staff determines
from a review of documents or is notified by the Secretary of State, a county
clerk, or city clerk or recorder that a person required to file documents under
the Commission's jurisdiction has failed to file, filed late, or filed
incomplete, false, or materially misleading documents, the Commission may
contact the person and advise him or her to take corrective action as to the
document(s) required to be filed. The contact and advice may be in lieu of, or
in addition to, other action(s) by the Commission under Ark. Code Ann. §
7-6-218(b)(4).
(4) Corrective action letters shall be public
records. However, the sending of a corrective action letter is not tantamount
to the finding of a violation by the Commission. Instead, such letters are a
means of seeking public disclosure. Persons who fail to take corrective action
when advised to do so by the Commission may, after investigation, be subject to
sanction(s) in accordance with these rules.
V. FILING OF COMPLAINT
A.
Citizen
Complaint
(1) Any citizen
may file a complaint with the Commission against a person alleged to have
violated one or more of the laws over which the Commission has jurisdiction.
The Commission staff has prepared a citizen complaint form which may be
furnished free of cost to any citizen.
(2) A complaint must be filed within four (4)
years after the alleged violation occurred. If the alleged violation is the
failure to file a report or the filing of an incorrect report, the complaint
must be filed within four (4) years after the date the report was
due.
(3) A valid complaint to the
Commission must:
a. Clearly set forth the
name(s) of the person(s) alleged to have violated laws under the Commission's
jurisdiction;
b. Clearly set forth
the facts the complainant believes constitute a violation of laws under the
Commission's jurisdiction; and
c.
Be signed under penalty of perjury.
(4) A complaint meeting the foregoing
requirements shall be accepted by the staff of the Commission provided it is
written on a Commission complaint form or is otherwise reduced to
writing.
(5) Any Commissioner who
shall receive a written complaint or evidence relevant to an ongoing complaint
investigation shall immediately transfer same to the director of the Commission
for proper handling. If, however, the written complaint is against the director
or other staff member, the Commissioner shall not release same to the director,
except as provided in these rules.
B.
Complaints Against Staff
or Commissioners
(1)
Complaints against the director or any staff member of the Commission shall be
filed with the chairman of the Commission.
(2) Complaints against any Commissioner shall
be filed with the director of the Commission, or with any of the remaining
Commissioners.
C.
Filing of Complaint by Commission
(1) For purposes of filing a citizen
complaint, the Commission shall be considered a citizen.
(2) The director, a staff attorney, or a
director of compliance may, in his or her official capacity, sign a citizen
complaint on behalf of the Commission after:
a. Notifying the chairman of the name of the
individual alleged to have committed a violation and the nature of the alleged
violation; and
b. Receiving the
consent of the chairman to proceed with an investigation.
(3) Once filed, a complaint will be handled
in the same manner as any other complaint received from a citizen.
VI. INVESTIGATION PROCEDURE
(1) Every
document the Commission receives which purports to be a complaint, whether
sworn or unsworn, shall, upon receipt, be stamped with the current date, then
forwarded to the director.
(2) The
director shall determine if the document meets the requirements of a valid
complaint set forth in subparagraph A(3) of section V. If the director
determines that the document does not constitute a valid complaint, he or she
shall advise the complainant in writing specifically why the document fails to
meet the requirements of a valid complaint.
(3) Upon a determination that a valid
complaint has been received, the director shall cause an investigation to be
commenced concerning the allegations of the complaint. As part of that
investigation, the director shall request that the complainant submit any and
all evidence he or she may have concerning the matter(s) alleged.
(4) Each such investigation must be assigned
a case number and, thereafter, all records, documents, and other evidence
collected must be maintained in the file to which such case number is
assigned.
(5) The director shall
notify the person accused that he or she is under investigation, and the nature
of the investigation pursuant to Ark. Code Ann. §
7-6-218(b)(1)(B).
If during the process of the investigation, evidence of other potential
violations is discovered, the director shall notify the respondent of same in
writing if an investigation of said potential violations is pursued. When
notifying the respondent of an investigation, the director shall inform the
respondent that he or she has a right to submit any and all evidence which may
serve to rebut or mitigate the alleged violation(s).
(6) Staff shall present a preliminary report
of its investigation, including a recommendation that the investigation either
be continued or that the complaint be dismissed, to the Commission within sixty
(60) days of the filing of the complaint, unless good cause be shown. After
being presented the preliminary report, the Commission shall decide whether to
dismiss the complaint or direct the staff to complete the investigation. If the
Commission directs staff to complete the investigation, the director shall
notify the respondent in writing of this decision.
(7) If, during the course of the
investigation, the Commission has reason to believe that any person filed or
caused to be filed a complaint against another which he or she knows or should
know contains a false material allegation, the Commission may forward all
documents and other evidence of same to the appropriate law enforcement
authority with such recommendations as it deems appropriate.
(8) In any case in which the Commission has
dismissed a complaint, the respondent may request in writing that the
Commission make a finding as to whether or not the complaint filed was
frivolous (i.e., clearly lacking any basis in fact or law). In
the event the Commission finds that the complaint was frivolous, the respondent
may file a complaint seeking sanctions as provided in Ark. Code Ann. §
7-6-218(b)(4).
(9) The director, a staff attorney, or a
director of compliance of the Commission may issue subpoenas for documents,
persons, books, or other records relevant to complaint investigations and may
take sworn statements and administer oaths in connection therewith. The
director shall also be empowered to issue subpoenas on behalf of the respondent
so as to ensure all relevant evidence may be obtained in any investigation. Any
decision by the director to deny the respondent a requested subpoena shall be
in consultation with the chairman of the Commission.
(10) When in the course of an investigation
the Commission issues subpoenas to financial institutions for records or
information regarding a person who is the subject of the investigation, the
Commission shall provide the subject of the investigation with reasonable
notice of the subpoenas and an opportunity to respond.
(11) All proceedings, records, and
transcripts of any investigations or inquiries shall be kept confidential by
the Commission, unless:
(i) the respondent
requests disclosure of documents relating to investigation of the case; or
(ii) the respondent requests a
public hearing, see subparagraph (1) of section VII; or
(iii) there is judicial review of a
Commission decision pursuant to Ark. Code Ann. §
25-15-212,
see subparagraph (3) of section X. Provided, however, that the Commission may,
through its members or staff, disclose confidential information to proper law
enforcement officials, agencies and bodies or as may be required to conduct its
investigation. Moreover, thirty (30) days after any final adjudication in which
the Commission makes a finding of a violation, all records relevant to the
investigation and upon which the Commission based its decision, except working
papers of the Commission and its staff, shall be open to public
inspection.
(12) The
Commission's staff shall not detail evidence of an ongoing investigation to the
Commissioners after being directed to complete an investigation pursuant to
subparagraph 6 of this section.
(13) After completing its investigation,
staff shall prepare a final report of the investigation to be submitted to the
Commission in connection with determining whether or not probable cause exists
for a finding of a violation.
(14)
The respondent and the complainant, if applicable, shall be notified in writing
by the director of the date, time and place of the meeting at which the
complaint will be considered for a probable cause determination. The respondent
may choose to attend and/or be represented by counsel. The respondent may offer
testimony and other evidence at the meeting at which the complaint is
considered for a probable cause determination. When the matter comes before the
Commission for a probable cause determination, it will be handled in
confidential session and not be open to the public. At the meeting at which the
complaint is considered for a probable cause determination, staff shall present
a final report of its investigation to the Commissioners together with any
other information staff deems appropriate.
(15) If the Commission finds that probable
cause exists for a finding of a violation, the Commission shall issue a written
Offer of Settlement to the respondent stating the finding(s) of the Commission
and the proposed sanction(s). The issuance of an Offer of Settlement shall not
mean that the Commission has found that the respondent has committed a
violation but, rather, that probable cause has been found to exist. If the
Commission does not find probable cause, it shall dismiss the
complaint.
(16) Any person who
wishes to accept the Commission's Offer of Settlement shall do so in writing
within ten (10) calendar days from the issuance of the offer. The acceptance of
an Offer of Settlement shall be the equivalent of a final adjudication in which
the Commission made a finding of a violation and shall constitute final action
for purposes of appeal under the Administrative Procedure Act. If accepted, the
Offer of Settlement shall be deemed a public record.
(17) If the respondent neither accepts the
Offer of Settlement nor requests a public hearing (in accordance with
subparagraph (1) of section VII) within ten (10) calendar days from his or her
receipt of the Offer of Settlement, then the Commission shall set the complaint
for final adjudication hearing. Said hearing shall be conducted in the same
manner as provided for in subparagraphs (4) through (11) of section VII, except
that the final adjudication hearing shall be held in confidential session. The
respondent and the complainant, if applicable, shall be given written notice of
the date, time, and place of the hearing pursuant to Ark. Code Ann. §
25-15-208(a)(2).
Once a matter has been scheduled for a final adjudication hearing, the
respondent, upon written request, shall be permitted to review the entire
investigative file with the exception of working papers of the Commission and
its staff. Following the final adjudication hearing, the Commission shall
prepare a final order setting forth its findings of fact and conclusions of law
based upon the evidence presented at the final adjudication hearing. The
Commission shall not be bound by the terms of the Offer of Settlement in
issuing the final order.
(18) All
investigations commenced as a result of any complaint must be completed within
one hundred-fifty (150) days from the date of receipt of the complaint upon
which the investigation is based, except that, if a public hearing or other
hearing of adjudication is conducted, all action on the complaint by the
Commission shall be completed within one hundred-eighty (180) days. Provided,
however, that such time shall be tolled during the pendency of any civil action
involving those particular Commission proceedings.
(19) The Commission, in a document, shall
advise the complainant and the respondent of the final action taken together
with the reasons for the action. Said document shall be a public
record.
(20) Nothing herein shall
prohibit the Commission from informally disposing of a complaint by
stipulation, settlement, consent order, or default pursuant to Ark. Code Ann.
§
25-15-208(b).
Any settlement agreement entered into between the Commission and a respondent
shall be deemed a public record.
VII. PUBLIC HEARING
(1) Any respondent who has received an Offer
of Settlement from the Commission shall have the right to request a public
hearing pursuant to Ark. Code Ann. §
7-6-218(b)(2).
The request must be in writing and received by the Commission no later than ten
(10) calendar days from the respondent's receipt of the Commission's Offer of
Settlement.
(2) In the event the
respondent requests a public hearing, the confidentiality requirements of Ark.
Code Ann. §
7-6-218(b)(3)(B)
shall not prohibit documents and other evidence gathered in the investigation
from being made a part of the record at the hearing.
(3) Upon receiving a request for a public
hearing, the director shall set a date, time and place for the hearing, and
written notice shall be given to the respondent and complainant, if applicable,
pursuant to Ark. Code Ann. §
25-15-208(a)(2).
Once a matter has been scheduled for a public hearing, the respondent, upon
written request, shall be permitted to review the entire investigative file
with the exception of working papers of the Commission and its staff.
(4) The respondent shall have the right to
appear in person before the Commission at the public hearing, to be represented
by counsel, to present such documentary, oral or other evidence as he or she
may have in support of his or her position, to cross-examine witnesses, and to
present argument on all issues involved.
(5) The director, a staff attorney, or a
director of compliance shall appear at the public hearing for purposes of
presenting evidence concerning the alleged violation(s) of the respondent.
Whichever of these individuals presents such evidence shall not be present
while the Commissioners conduct their deliberations, nor shall said individual
assist the Commission in preparation of the final order. In addition, a staff
member who, in his or her official capacity, has signed a citizen complaint
form on behalf of the Commission, shall not be present while the Commissioners
conduct their deliberations, nor shall said individual assist the Commission in
the preparation of the final order.
(6) The chairman of the Commission, or at his
or her request one of the other Commissioners; shall preside at the public
hearing, rule on motions and objections, and admit or deny evidence into the
record.
(7) The Commission may
appoint a hearing master who shall, at the conclusion of a public hearing,
report his or her factual findings and recommend disposition to the Commission,
which the Commission may accept, reject or modify.
(8) All testimony given at the public hearing
will be given under oath. The Commission, or a master, shall have the power to
take testimony, examine or cause to be examined any and all documents relevant
to the inquiry, and generally be allowed to conduct the hearing, take proof,
and consider any information deemed relevant to the issues. The hearing will be
recorded and a record maintained in accordance with Ark. Code Ann. §
25-15-208(a)(5)
in the event judicial review is sought under Ark. Code Ann. §
25-15-212.
The respondent, or his or her counsel, shall have the right to cross-examine
any witness or rebut any document presented at the public hearing.
(9) The decision of the Commission, after a
public hearing, shall be reduced to a final order signed by the chairman of the
Commission, containing written findings of fact and conclusions of law,
separately stated, in accordance with Ark. Code Ann. §
25-15-210(b)(2).
Findings of fact shall be based exclusively on the evidence and on matters
officially noticed. All such decisions of the Commission shall be made
available for public inspection.
(10) The respondent shall be served either
personally or by mail with a copy of any decision or order.
(11) Any final order of the Commission shall
constitute an adjudication for purposes of judicial review under Ark. Code Ann.
§
25-15-212.
VIII. RENDERING OF DECISION
(1) The Commission will
review the evidence, testimony, documents and any other matters presented at
the public hearing and thereafter render a decision. If the Commission finds a
violation, the Commission will not be bound by the terms of its Offer of
Settlement and shall do one or more of the following unless good cause be shown
for the violation:
a. Issue a final order in
which the Commission finds that the respondent did not violate any laws under
the jurisdiction of the Commission and that the complaint shall be
dismissed;
b. Issue a final order
in which the Commission finds that there is sufficient evidence to show that a
violation of law under the jurisdiction of the Commission occurred and that the
respondent shall be issued a public LETTER OF CAUTION;
c. Issue a final order in which the
Commission finds that there is sufficient evidence to show that a violation of
law under the jurisdiction of the Commission occurred and that the respondent
shall be issued a public LETTER OF WARNING;
d. Issue a final order in which the
Commission finds that there is sufficient evidence to show that a violation of
law under the jurisdiction of the Commission occurred and that the respondent
shall be issued a public LETTER OF REPRIMAND;
e. Report its findings and other evidence to
the proper law enforcement authorities along with recommendations on criminal
prosecution (in exercising this power, the Commission is not required to make a
finding of a violation of the laws under its jurisdiction);
f. Impose a fine of not less than twenty-five
dollars ($25.00) nor more than one thousand dollars ($1,000.00) for
each negligent or intentional violation of law under the
Commission's jurisdiction; and
g.
Impose a late filing fee not exceeding twenty-five dollars ($25.00) for each
day a statement of organization or financial report remains unfiled by a ballot
question committee or legislative question committee.
(2) In determining the type(s) of sanction(s)
to impose, if any, after making a finding of a violation, the Commission may
consider all of the surrounding circumstances including, but not limited to,
the following:
a. The seriousness of the
violation;
b. The presence or
absence of any intention to conceal, deceive or mislead;
c. Whether the violation was negligent or
intentional;
d. Whether the
respondent demonstrated good faith by consulting the Commission staff or any
other government agency;
e. Whether
the violation was isolated or part of a pattern;
f. Whether the respondent has previously been
found to have violated a law under the Commission's jurisdiction;
g. Whether the respondent, upon learning of a
reporting violation, voluntarily filed amendments to provide full disclosure;
and
h. Whether the respondent has
shown good cause for the violation.
(3) In the event a fine is not paid in a
timely fashion, the Commission shall be authorized to file suit in accordance
with Ark. Code Ann. §
7-6-217(g)(8)(A)
to obtain a judgment for the amount of said fine.
IX. DEFINITIONS OF PUBLIC LETTERS
(1)
Caution is
defined as: a written disposition of an allegation against any person which is
advisory in nature, clearly giving notice to the respondent that his or her
action or lack of action is a violation of law, and further advising the
respondent not to engage in the same activity again. A caution may include a
requirement that the respondent take corrective action as to the improper
activity.
(2)
Warning
is defined as: a written disposition of an allegation against any person
which is condemnatory in nature, expressing strong disapproval for the
respondent's misconduct and expressing the view that the misconduct undermines
public confidence in the integrity of the governmental process. A warning may
include a requirement that the respondent take corrective action as to his or
her misconduct, and may also include notice to any public official, public
agency, professional association or other entity to which the respondent is a
member or is employed.
(3)
Reprimand is defined as: a written disposition of an allegation
against any person which is condemnatory in nature, clearly giving notice to
the respondent that his or her action or lack of action is a violation of the
law and constitutes activity which is below the standard of conduct expected of
persons under the jurisdiction of the Commission. The reprimand will require
the respondent to refrain from engaging in the same activity again. A
reprimand may include a requirement that the respondent take
corrective action as to his or her misconduct and may also include notice to
any public official, public agency, professional association or other entity to
which the respondent is a member or is employed. A reprimand shall
be considered more severe than a caution or warning.
X. JUDICIAL REVIEW
(1) Any person who has been sanctioned, fined
and/or found to have violated a law under the Commission's jurisdiction shall
have the right to file a petition for review, within thirty (30) days of
service of the Commission's final order, with an appropriate Circuit Court
pursuant to Ark. Code Ann. §
25-15-212.
(2) A person filing a petition for review
must serve the Commission with a copy of same in accordance with the Arkansas
Rules of Civil Procedure.
(3) Upon
receipt of a petition for review, the Commission staff shall prepare and
transmit the entire record of the proceeding to the reviewing court within
thirty (30) days, or within such further time as the court may allow, but not
exceeding an aggregate of ninety (90) days. By stipulation of the parties, the
record may be shortened. Once prepared, the record shall be subject to public
disclosure.
X I. FORMS AND INSTRUCTIONS
The Commission has prepared or utilizes the following forms and instructions: Ballot Question Committee Financial Report, Ballot Question Committee (BQC) Statement of Organization, Ballot Question Committee (BQC) Notice of Dissolution, Campaign Contribution and Expenditure Report for County, Municipal and School Board Candidates (form and instructions), Campaign Contribution and Expenditure Report for State and District Candidates (form and instructions), Final Campaign Contribution and Expenditure Report for State and District Candidates (form and instructions), Carryover Fund Reporting Form (and instructions), Citizen Complaint Form, Disclosure by Members of the General Assembly of Certain Sales to the State - Act 808 of 1991, Exploratory Committee Registration Form, Exploratory Committee Contribution and Expenditure Report, Independent Expenditure Committee Registration, Report of Independent Expenditures Made and Report of Contributions Received by Independent Expenditure Committees, Legislative Question Committee Financial Report, Legislative Question Committee (LQC) Statement of Organization, Legislative Question Committee (LQC) Notice of Dissolution, Lobbyist Activity Report, Lobbyist Registration Form, Political Action Committee (PAC) Registration Form, Political Action Committee (PAC) Quarterly Reporting Form, Political Party Annual Contribution Report, Quarterly Disclosure Form (certain designated officials), and Statement of Financial Interest (form and instructions). Copies of same are set forth in the appendix hereto. Moreover, the Commission has participated in the publication of the following document(s) prepared by the State Board of Election Commissioners: Running for Office, A "Plain English" Handbook for Candidates.
XII. APPENDIX
|
Ballot Question Committee Financial Report ........... |
A-1 |
|
Ballot Question Committee (BQC) Statement of Organization ........... |
A-7 |
|
Ballot Question Committee (BQC) Notice of Dissolution ........... |
A-9 |
|
Campaign Contribution and Expenditure Report County, Municipal and School Board Candidates (form and instructions) ....... |
A-10 |
|
Campaign Contribution and Expenditure Report - State and District Candidates (form and instructions) ........... |
A-22 |
|
Final Campaign Contribution and Expenditure Report - State and District Candidates (form and instructions) ........... |
A-33 |
|
Carryover Fund Reporting Form (and instructions) ........... |
A-46 |
|
Citizen Complaint Form ........... |
A-54 |
|
Disclosure by Members of the General Assembly of Certain Sales to the State - Act 808 of 1991 ........... |
A-55 |
|
Exploratory Committee Registration Form ........... |
A-56 |
|
Exploratory Committee Contribution and Expenditure Report ........... |
A-57 |
|
Independent Expenditure Committee Registration ........... |
A-62 |
|
Report of Independent Expenditures Made and Report of Contributions Received by Independent Expenditure Committees ........... |
A-63 |
|
Legislative Question Committee Financial Report ........... |
A-68 |
|
Legislative Question Committee (LQC) Statement of Organization .......... |
A-74 |
|
Legislative Question Committee (LQC) Notice of Dissolution ........... |
A-76 |
|
Lobbyist Activity Report ........... |
A-77 |
|
Lobbyist Registration Form ........... |
A-85 |
|
Political Action Committee (PAC) Registration Form ........... |
A-87 |
|
Political Action Committee (PAC) Quarterly Reporting Form ........... |
A-89 |
|
Political Party Annual Contribution Report ........... |
A-95 |
|
Quarterly Disclosure Form (certain designated officials) ........... |
A-97 |
|
Statement of Financial Interest (form and instructions) ........... |
A-98 |
Disclaimer: These regulations may not be the most recent version. Arkansas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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