Chapter 12.04

SAN JOSÉ BOARD OF FAIR CAMPAIGN AND POLITICAL PRACTICES*

Parts:

• 1 Duties and Responsibilities

• 2 Enforcement

*Editor’s note— Ord. 29772, § 3, adopted Aug. 23, 2016, changed the title of Ch. 12.04 from "San José Ethics Commission" to "San José Board of Fair Campaign and Political Practices."

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ETHICS AND OPEN GOVERNMENT PROVISIONS

§ 12.04.080

Part 1

DUTIES AND RESPONSIBILITIES

Sections:

"San José Board of Fair Campaign and Political Practices," also referred to in this title as "board of fair campaign and political practices" or "commission," shall mean the commission established pursuant to the provisions of Part 16 of Chapter 2.08.

(Ords. 25209, 26440, 26976, 29398, 29642, 29772.)

• A. The commission shall meet no less than two times during the year of a municipal election. At least one meeting shall be held before the primary election and one meeting shall be held before the general election.

• B. The commission shall meet at other times as set forth in the resolution of bylaws of the commission or as called by the chair. Deliberations and meetings of the commission shall be open to the public in accordance with the Ralph M. Brown Act (Government Code Section 54950 et seq.)

• C. The office of the city clerk shall staff such meetings.

• (Ords. 24499, 25525, 26440, 26976, 29642.)

• A. Three members constitute a quorum of the commission, and the votes of at least three members are required to take any action.

• B. Each member voting to impose any order or penalty for a violation of this title, must certify that he or she has heard (either in person or by listening to a recording) or has read a transcript of the testimony at the hearing on the complaint and has reviewed all the evidence in the record.

(Ords. 24499, 25525, 26440, 26976, 28624, 29642.)

The commission shall have the following duties and responsibilities:

• A. Monitor compliance with all campaign and ethics ordinances in this title.

• B. Review and investigate allegations of violations of this title and take enforcement action where appropriate.

• C. Make recommendations to the city council with regard to campaign and ethics regulations and policies.

• D. Settle challenges to commission decisions in accordance with Section 4.24.050 of Title 4 of this Code.

(Ords. 24499, 25525, 26440, 26976, 29642.)

• A. The city council shall adopt, by resolution, regulations and procedures for investigations and hearings to be conducted by the commission.

• B. The commission has the authority to investigate complaints alleging violations of this title, in accordance with the regulations and procedures adopted by resolution of the city council.

• C. A complaint filed with the commission may be investigated only if the complaint identifies the specific alleged violation which forms the basis for the complaint and contains sufficient facts to warrant a formal investigation.

• D. The City Clerk is authorized to dismiss complaints without prejudice that do not satisfy the requirements of this Section or are outside the jurisdiction of the commission.

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SAN JOSÉ CODE

§ 12.04.080

• E. The council shall retain an independent and neutral evaluator, selected by the commission, to review and investigate complaints and to make recommendations to the commission. The council shall appropriate funds anticipated to be needed to fund the evaluator for a period of four years.

• F. No complaint, investigative file or information contained therein may be disclosed by a city official, city employee, the evaluator or investigator to any person other than a respondent or respondent's representative, the city attorney or district attorney, a court, a law enforcement agency or otherwise as necessary to the conduct of an investigation before the evaluator presents the report and recommendations to the commission.

• G. Except as provided in this section, the evaluator must 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 board of fair campaign and political practices must not take any further action on the complaint with regard to the employee.

• H. Any city employee who is a candidate for city office must be treated as any other candidate for purposes of Chapter 12.06.

• I. The city attorney's office may provide legal advice to the commission related to noncomplaint matters or general interpretations of the Municipal Code or relevant state or federal law, but must not participate in investigations or reviews of complaints.

• (Ords. 24499, 25525, 26440, 26976, 28624, 29398, 29642, 29772, 30946.)

• A. The commission may subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of any books, papers, records or other items.

• B. The chair of the commission, after consultation with the evaluator, shall have the power to

subpoena witnesses and to compel their attendance and testimony, administer oaths and affirmations at a scheduled commission hearing or meeting, and to require by subpoena the production of any books, papers, records or other items.

• C. The subpoena power shall be used only after a finding by the chair of the commission that the information or testimony is essential for a determination and material to its duties and/or exercise of its powers and that good faith efforts to acquire relevant information have failed.

(Ords. 25525, 26440, 26976, 27339, 29398, 29642.)

Part 2

ENFORCEMENT

Sections:

• 12.04.100 Findings.

• 12.04.110 Civil penalties.

• 12.04.120 Campaign contribution violations.

• 12.04.130 Excess contributions - Candidate.

• 12.04.140 Excess contributions - Officeholder.

12.04.150 Precandidacy contributions.

• 12.04.160 Violations of this title.

12.04.170 Subject to discipline.

• 12.04.180 Additional sanctions - Revolving door violations.

• A. The commission, by resolution, shall issue formal findings based on a preponderance of the evidence from the entire record of the commission's proceedings.

• B. No finding of violation shall be made unless the person alleged to have committed the violation has been notified of the alleged violation and provided a copy of the regulations and procedures of the commission.

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ETHICS AND OPEN GOVERNMENT PROVISIONS

§ 12.04.130

• C. If the board of fair campaign and political practices finds a violation of this title, the commission may:

  1. Find mitigating circumstances and take no further action;

  2. Issue a public statement or reprimand;

  3. Require corrective action by a deadline; and/or

  4. Impose a civil penalty in accordance with this title.

(Ords. 24499, 25525, 26440, 26976, 29398, 29642, 29772.)

• A. Civil penalties shall be imposed by resolution of the commission.

• B. Except as otherwise specified in Title 12, the commission may impose penalties of up to five thousand dollars for each violation or three times the amount which a person or respondent failed to report properly or unlawfully contributed, expended, gave or received, whichever is greater.

• C. If any civil penalty imposed by the commission is not timely paid, the city clerk shall refer the debt to the director of finance for collection.

(Ords. 25525, 26440, 26976, 27291, 28213, 29642.)

• A. In determining if penalties should be imposed for violations of Chapter 12.06 and the amount of any such penalties, the commission shall consider all the relevant circumstances surrounding the case, including:

  1. The severity of the violation;

  2. The presence or absence of any intention to conceal, deceive, or mislead;

  3. Whether the violation was deliberate, negligent or inadvertent;

  4. Whether the violation was an isolated incident or pervasive enough to indicate a pattern of disregard for this chapter;

  5. Whether the respondent has a prior record of violations of city law relating to campaign finance, lobbying, conflicts of interest, or governmental ethics;

  6. The degree to which the respondent cooperated with the investigation;

  7. Whether or not corrective actions were taken, if appropriate, in accordance with the provisions of this chapter.

• B. A candidate or committee failing to file a late contribution report pursuant to Section 12.06.910 shall be required to pay a penalty in an amount imposed by the commission pursuant to Section 12.04.110, but not less than one thousand dollars. Notwithstanding the foregoing, the commission may reduce the penalty upon making written findings establishing that mitigating circumstances render a one thousand dollar penalty unreasonable.

• C. The city clerk or city attorney may put persons on notice of a potential violation of the requirements of Chapter 12.06, whether or not a complaint is filed with the commission.

(Ords. 24499, 24733, 25525, 26440, 26976, 27291, 28213, 29642.)

No person shall be found in violation of this chapter for having made, solicited or accepted any contribution in excess of the limits prescribed by said sections, provided that such excess contribution was made, solicited or accepted at a time when the person was a candidate for the elective city office subject to the limitation, and as soon as reasonably possible and in no event more than thirty days after his or her discovery of the excess contribution either:

• A. The amount of contribution in excess of the prescribed limitation was refunded to the donor; or

• B. The amount of contribution in excess of the prescribed limitation was donated to the general fund of the city, earmarked to defray the costs of municipal elections.

(Ords. 25134, 26440, 29642.)

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SAN JOSÉ CODE

§ 12.04.140

No person shall be found in violation of this chapter for having made or accepted any contribution in excess of the limits prescribed by such sections, provided that:

• A. The amount of contribution in excess of the prescribed limitations shall have been refunded to the donor within thirty days of receipt by the committee; or

• B. The amount of contribution in excess of the prescribed limits shall have been donated to the general fund of the City of San José within thirty days of receipt.

(Ords. 25134, 26440, 29642.)

No person shall be found in violation of this chapter for having made, solicited or accepted any contribution in excess of the limits prescribed herein, provided that the excess contribution was made, solicited or accepted at a time when the person was not a candidate for the elective city office subject to the limitation, and within thirty days of his or her becoming a candidate either:

• A. The amount of contribution in excess of the prescribed limitation was refunded to the donor; or

• B. The amount of contribution in excess of the prescribed limitation was donated to the general fund of the city, earmarked to defray the costs of municipal elections.

(Ords. 24577, 26440, 29642.)

Enforcement of this title shall not be governed by Section 1.08.010 of this Code unless such violation constitutes a separate violation of another section or provision of this Code or of another applicable provision of law.

(Ords. 24499, 25525, 26440, 28985, 29642.)

Any violation of this title by an officer or employee of the city or successor agency to the

redevelopment agency may be deemed a failure to perform the duties under or observe the rules and regulations of the department, office, board or commission of such officer or employee within the meaning of the civil service ordinance and other city and agency rules and regulations.

(Ords. 24499, 26440, 29398, 29642.)

In addition to any other remedy provided in this Code, the following sanctions shall also apply to any violations of Chapter 12.10 where appropriate:

• A. Upon the petition of any interested person or party, a court or the presiding officer of any proceeding described in Section 12.10.020 may, after notice and an opportunity for hearing, exclude any person found to be in violation of Chapter 12.10 from further participation, or from assisting or counseling any other participant in the matter then pending before such court or presiding officer.

• B. City shall be entitled to recover from any former city or successor agency to the redevelopment agency officer or designated employee the monetary value of any compensation or thing of value provided to such person in violation of the provisions of Chapter 12.10.

(Ords. 24499, 26440, 29398, 29642.)