FIRST REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE CUNNINGHAM (86).
Read 1st time February 28, 2007 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 105.957, 105.961, and 130.054, RSMo, and to enact in lieu thereof four new sections relating to ethics complaints, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 105.957, 105.961, and 130.054, RSMo, are repealed and four new sections enacted in lieu thereof, to be known as sections 105.957, 105.961, 130.054, and 130.059, to read as follows:
105.957. 1. The commission shall receive any complaints alleging violation of the provisions of:
(1) The requirements imposed on lobbyists by sections 105.470 to 105.478;
(2) The financial interest disclosure requirements contained in sections 105.483 to 105.492;
(3) The campaign finance disclosure requirements contained in chapter 130, RSMo;
(4) Any code of conduct promulgated by any department, division or agency of state government, or by state institutions of higher education, or by executive order;
(5) The conflict of interest laws contained in sections 105.450 to [105.468] 105.467 and section 171.181, RSMo; and
(6) The provisions of the constitution or state statute or order, ordinance or resolution of any political subdivision relating to the official conduct of officials or employees of the state and political subdivisions.
2. Complaints filed with the commission shall be in writing and filed only by a natural person. The complaint shall contain the name, address, and telephone numbers of the complainant, and all facts known by the complainant that have given rise to the complaint and the complaint shall be sworn to, under penalty of perjury, by the complainant. No complaint shall be investigated unless the complaint alleges facts which, if true, fall within the jurisdiction of the commission. Within five days after receipt of a complaint by the commission, a copy of the complaint, including the name of the complainant, shall be delivered to the alleged violator.
3. No complaint shall be investigated which concerns alleged criminal conduct which allegedly occurred previous to the period of time allowed by law for criminal prosecution for such conduct. The commission may refuse to investigate any conduct which is the subject of civil or criminal litigation. The commission, its executive director or an investigator shall not investigate any complaint concerning conduct which is not criminal in nature which occurred more than two years prior to the date of the complaint. A complaint alleging misconduct on the part of a candidate for public office, other than those alleging failure to file the appropriate financial interest statements or campaign finance disclosure reports, shall not be accepted by the commission within sixty days prior to the primary election at which such candidate is running for office, and until after the general election.
4. If the commission finds that any complaint is frivolous in nature or finds no probable cause to believe that there has been a violation, the commission shall dismiss the case. For purposes of this subsection, "frivolous" shall mean a complaint clearly lacking any basis in fact or law. Any person who submits a frivolous complaint shall be liable for actual and compensatory damages to the alleged violator for holding the alleged violator before the public in a false light. If the commission finds that a complaint is frivolous or that there is not probable cause to believe there has been a violation, the commission shall issue a public report to the complainant and the alleged violator stating with particularity its reasons for dismissal of the complaint. Upon such issuance, the complaint and all materials relating to the complaint shall be a public record as defined in chapter 610, RSMo.
5. Complaints which allege violations as described in this section which are filed with the commission shall be handled as provided by section 105.961.
6. In addition to the contents required for each complaint under subdivision (3) of subsection 1 of this section, the copy of the complaint supplied to the person or entity named in the complaint shall include the personal information of the person filing the complaint, including the person's name, address, and telephone number or numbers.
7. Except as provided in subsection 6 of this section, any complaint filed under this section shall be deemed a closed record under chapter 610, RSMo. No information relating to any complaint filed under this section shall be disclosed in any form to the public until the commission has completed the investigation of the complaint and has rendered its findings and conclusions on the complaint. Any person or entity who discloses any such information relating to a complaint before the commission has rendered its findings and conclusions on the complaint shall be subject to a civil penalty not to exceed two thousand five hundred dollars, and upon conviction, shall be subject to a criminal penalty of a fine not to exceed two thousand five hundred dollars or a term of imprisonment not to exceed one year, or both. The commission shall provide a method requiring the complainant to acknowledge that the complainant understands that the complaint is a closed record and to acknowledge that the complainant understands the penalties for violating this section in substantially the following form:
"This complaint is a closed record and is protected from disclosure under the authority of chapter 610, RSMo. Any person or entity who discloses any information contained in this complaint before the commission has rendered its findings and conclusions shall be subject to a civil penalty not to exceed two thousand five hundred dollars and, upon conviction, shall be subject to a criminal penalty of a fine not to exceed two thousand five hundred dollars or a term of imprisonment not to exceed one year, or both the fine and imprisonment.".
105.961. 1. Upon receipt of a complaint as described by section 105.957, the commission shall assign the complaint to a special investigator, who may be a commission employee, who shall investigate and determine the merits of the complaint. Within ten days of such assignment, the special investigator shall review such complaint and disclose, in writing, to the commission any conflict of interest which the special investigator has or might have with respect to the investigation and subject thereof. Within one hundred twenty days of receipt of the complaint from the commission, the special investigator shall submit the special investigator's report to the commission. The commission, after review of such report, shall determine:
(1) That there is reasonable grounds for belief that a violation has occurred; or
(2) That there are no reasonable grounds for belief that a violation exists and the complaint should be dismissed; or
(3) That additional time is necessary to complete the investigation, and the status and progress of the investigation to date. The commission, in its discretion, may allow the investigation to proceed for additional successive periods of one hundred twenty days each, pending reports regarding the status and progress of the investigation at the end of each such period.
2. When the commission concludes, based on the report from the special investigator, or based on an audit conducted pursuant to section 105.959, that there are reasonable grounds to believe that a violation of any criminal law has occurred, and if the commission believes that criminal prosecution would be appropriate upon a vote of four members of the commission, the commission shall refer the report to the Missouri office of prosecution services, prosecutors coordinators training council established in section 56.760, RSMo, which shall submit a panel of five attorneys for recommendation to the court having criminal jurisdiction, for appointment of an attorney to serve as a special prosecutor; except that, the attorney general of Missouri or any assistant attorney general shall not act as such special prosecutor. The court shall then appoint from such panel a special prosecutor pursuant to section 56.110, RSMo, who shall have all the powers provided by section 56.130, RSMo. The court shall allow a reasonable and necessary attorney's fee for the services of the special prosecutor. Such fee shall be assessed as costs if a case is filed, or ordered by the court if no case is filed, and paid together with all other costs in the proceeding by the state, in accordance with rules and regulations promulgated by the state courts administrator, subject to funds appropriated to the office of administration for such purposes. If the commission does not have sufficient funds to pay a special prosecutor, the commission shall refer the case to the prosecutor or prosecutors having criminal jurisdiction. If the prosecutor having criminal jurisdiction is not able to prosecute the case due to a conflict of interest, the court may appoint a special prosecutor, paid from county funds, upon appropriation by the county or the attorney general to investigate and, if appropriate, prosecute the case. The special prosecutor or prosecutor shall commence an action based on the report by the filing of an information or seeking an indictment within sixty days of the date of such prosecutor's appointment, or shall file a written statement with the commission explaining why criminal charges should not be sought. If the special prosecutor or prosecutor fails to take either action required by this subsection, upon request of the commission, a new special prosecutor, who may be the attorney general, shall be appointed. The report may also be referred to the appropriate disciplinary authority over the person who is the subject of the report.
3. When the commission concludes, based on the report from the special investigator or based on an audit conducted pursuant to section 105.959, that there are reasonable grounds to believe that a violation of any law has occurred which is not a violation of criminal law or that criminal prosecution is not appropriate, the commission shall conduct a hearing which shall be a closed meeting and not open to the public. The hearing shall be conducted pursuant to the procedures provided by sections 536.063 to 536.090, RSMo, and shall be considered to be a contested case for purposes of such sections. The commission shall determine, in its discretion, whether or not that there is probable cause that a violation has occurred. If the commission determines, by a vote of at least four members of the commission, that probable cause exists that a violation has occurred, the commission may refer its findings and conclusions to the appropriate disciplinary authority over the person who is the subject of the report, as described in subsection 7 of this section. After the commission determines by a vote of at least four members of the commission that probable cause exists that a violation has occurred, and the commission has referred the findings and conclusions to the appropriate disciplinary authority over the person subject of the report, the subject of the report may appeal the determination of the commission to the administrative hearing commission. Such appeal shall stay the action of the Missouri ethics commission. Such appeal shall be filed not later than the fourteenth day after the subject of the commission's action receives [actual] notice of the commission's action.
4. If the appropriate disciplinary authority receiving a report from the commission pursuant to subsection 3 of this section fails to follow, within sixty days of the receipt of the report, the recommendations contained in the report, or if the commission determines, by a vote of at least four members of the commission that some action other than referral for criminal prosecution or for action by the appropriate disciplinary authority would be appropriate, the commission shall take any one or more of the following actions:
(1) Notify the person to cease and desist violation of any provision of law which the report concludes was violated and that the commission may seek judicial enforcement of its decision pursuant to subsection 5 of this section;
(2) Notify the person of the requirement to file, amend or correct any report, statement, or other document or information required by sections 105.473, 105.483 to 105.492, or chapter 130, RSMo, and that the commission may seek judicial enforcement of its decision pursuant to subsection 5 of this section; and
(3) File the report with the executive director to be maintained as a public document; or
(4) Issue a letter of concern or letter of reprimand to the person, which would be maintained as a public document; or
(5) Issue a letter that no further action shall be taken, which would be maintained as a public document; or
(6) Through reconciliation agreements or civil action, the power to seek fees for violations in an amount not greater than one thousand dollars or double the amount involved in the violation.
5. Upon vote of at least four members, the commission may initiate formal judicial proceedings seeking to obtain any of the following orders:
(1) Cease and desist violation of any provision of sections 105.450 to 105.496, or chapter 130, RSMo, or sections 105.955 to 105.963;
(2) Pay any civil penalties required by sections 105.450 to 105.496 or chapter 130, RSMo;
(3) File any reports, statements, or other documents or information required by sections 105.450 to 105.496, or chapter 130, RSMo; or
(4) Pay restitution for any unjust enrichment the violator obtained as a result of any violation of any criminal statute as described in subsection 6 of this section.
The Missouri ethics commission shall give [actual] notice to the subject of the complaint of the proposed action as set out in this section. The subject of the complaint may appeal the action of the Missouri ethics commission, other than a referral for criminal prosecution, to the [administrative hearing commission] circuit court of Cole County. Such appeal shall stay the action of the Missouri ethics commission. Such appeal shall be filed no later than fourteen days after the subject of the commission's actions receives actual notice of the commission's actions.
6. In the proceeding in circuit court, the commission may seek restitution against any person who has obtained unjust enrichment as a result of violation of any provision of sections 105.450 to 105.496, or chapter 130, RSMo, and may recover on behalf of the state or political subdivision with which the alleged violator is associated, damages in the amount of any unjust enrichment obtained and costs and attorney's fees as ordered by the court.
7. The appropriate disciplinary authority to whom a report shall be sent pursuant to subsection 2 or 3 of this section shall include, but not be limited to, the following:
(1) In the case of a member of the general assembly, the ethics committee of the house of which the subject of the report is a member;
(2) In the case of a person holding an elective office or an appointive office of the state, if the alleged violation is an impeachable offense, the report shall be referred to the ethics committee of the house of representatives;
(3) In the case of a person holding an elective office of a political subdivision, the report shall be referred to the governing body of the political subdivision;
(4) In the case of any officer or employee of the state or of a political subdivision, the report shall be referred to the person who has immediate supervisory authority over the employment by the state or by the political subdivision of the subject of the report;
(5) In the case of a judge of a court of law, the report shall be referred to the commission on retirement, removal and discipline, or if the inquiry involves an employee of the judiciary to the applicable presiding judge;
(6) In the case of a person holding an appointive office of the state, if the alleged violation is not an impeachable offense, the report shall be referred to the governor;
(7) In the case of a statewide elected official, the report shall be referred to the attorney general;
(8) In a case involving the attorney general, the report shall be referred to the prosecuting attorney of Cole County.
8. The special investigator having a complaint referred to the special investigator by the commission shall have the following powers:
(1) To request and shall be given access to information in the possession of any person or agency which the special investigator deems necessary for the discharge of the special investigator's responsibilities;
(2) To examine the records and documents of any person or agency, unless such examination would violate state or federal law providing for confidentiality;
(3) To administer oaths and affirmations;
(4) Upon refusal by any person to comply with a request for information relevant to an investigation, an investigator may issue a subpoena for any person to appear and give testimony, or for a subpoena duces tecum to produce documentary or other evidence which the investigator deems relevant to a matter under the investigator's inquiry. The subpoenas and subpoenas duces tecum may be enforced by applying to a judge of the circuit court of Cole County or any county where the person or entity that has been subpoenaed resides or may be found, for an order to show cause why the subpoena or subpoena duces tecum should not be enforced. The order and a copy of the application therefor shall be served in the same manner as a summons in a civil action, and if, after hearing, the court determines that the subpoena or subpoena duces tecum should be sustained and enforced, the court shall enforce the subpoena or subpoena duces tecum in the same manner as if it had been issued by the court in a civil action; and
(5) To request from the commission such investigative, clerical or other staff assistance or advancement of other expenses which are necessary and convenient for the proper completion of an investigation. Within the limits of appropriations to the commission, the commission may provide such assistance, whether by contract to obtain such assistance or from staff employed by the commission, or may advance such expenses.
9. (1) Any retired judge may request in writing to have the judge's name removed from the list of special investigators subject to appointment by the commission or may request to disqualify himself or herself from any investigation. Such request shall include the reasons for seeking removal;
(2) By vote of four members of the commission, the commission may disqualify a judge from a particular investigation or may permanently remove the name of any retired judge from the list of special investigators subject to appointment by the commission.
10. Any person who is the subject of any investigation pursuant to this section shall be entitled to be represented by counsel at any proceeding before the special investigator or the commission.
11. The provisions of sections 105.957, 105.959 and 105.961 are in addition to other provisions of law under which any remedy or right of appeal or objection is provided for any person, or any procedure provided for inquiry or investigation concerning any matter. The provisions of this section shall not be construed to limit or affect any other remedy or right of appeal or objection.
12. No person shall be required to make or file a complaint to the commission as a prerequisite for exhausting the person's administrative remedies before pursuing any civil cause of action allowed by law.
13. If, in the opinion of the commission, the complaining party was motivated by malice or reason contrary to the spirit of any law on which such complaint was based, in filing the complaint without just cause, [this] the complaining party may be assessed the reasonable costs incurred by the subject party of the complaint and any other person or entity named therein, in defending against the complaint, and the reasonable costs incurred by the commission in investigating the complaint. Additionally, the commission's finding shall be reported to appropriate law enforcement authorities. Any person who knowingly files a complaint without just cause, or with malice, [is guilty of a class A misdemeanor] may be subject to a criminal penalty of a fine not to exceed two thousand five hundred dollars or a term of imprisonment not to exceed one year, or both.
14. A respondent party who prevails in a formal judicial action brought by the commission shall be awarded those reasonable fees and expenses incurred by that party in the formal judicial action, unless the court finds that the position of the commission was substantially justified or that special circumstances make such an award unjust.
15. The special investigator and members and staff of the commission shall maintain confidentiality with respect to all matters concerning a complaint until and if a report is filed with the commission, with the exception of communications with any person which are necessary to the investigation. The report filed with the commission resulting from a complaint acted upon under the provisions of this section shall not contain the name of the complainant or other person providing information to the investigator, if so requested in writing by the complainant or such other person. Any person who violates the confidentiality requirements imposed by this section or subsection 17 of section 105.955 required to be confidential is guilty of a class A misdemeanor and shall be subject to removal from or termination of employment by the commission.
16. Any judge of the court of appeals or circuit court who ceases to hold such office by reason of the judge's retirement and who serves as a special investigator pursuant to this section shall receive annual compensation, salary or retirement for such services at the rates of compensation provided for senior judges by subsections 1, 2 and 4 of section 476.682, RSMo. Such retired judges shall by the tenth day of each month following any month in which the judge provided services pursuant to this section certify to the commission and to the state courts administrator the amount of time engaged in such services by hour or fraction thereof, the dates thereof, and the expenses incurred and allowable pursuant to this section. The commission shall then issue a warrant to the state treasurer for the payment of the salary and expenses to the extent, and within limitations, provided for in this section. The state treasurer upon receipt of such warrant shall pay the same out of any appropriations made for this purpose on the last day of the month during which the warrant was received by the state treasurer.
130.054. 1. Notwithstanding the provisions of subsection 3 of section 105.957, RSMo, any natural person may file a complaint with the Missouri ethics commission alleging failure to timely or accurately file a personal financial disclosure statement, a campaign finance disclosure report or a violation of the provisions of this chapter by any candidate for elective office, within sixty days prior to the primary election at which such candidate is running for office, until after the general election. Any such complaint shall be in writing, shall state all facts known by the complainant which have given rise to the complaint, and shall be sworn to, under penalty of perjury, by the complainant.
2. Within the first business day after receipt of a complaint pursuant to this section, the executive director shall supply a copy of the complaint to the person or entity named in the complaint, [deleting] including any material identifying the name, address, and telephone numbers of the complainant. The executive director shall notify the complainant and the person or entity named in the complaint of the date and time at which the commission shall audit and investigate the allegations contained in the complaint pursuant to subsection 3 of this section.
3. Within fifteen business days of receipt of a complaint pursuant to this section, the commission shall audit and investigate the allegations contained in the complaint and shall determine by a vote of at least four members of the commission that there are reasonable grounds to believe that a violation of law has occurred within the jurisdiction of the commission. The respondent may reply in writing or in person to the allegations contained in the complaint and may state justifications to dismiss the complaint. The complainant may also present evidence in support of the allegations contained in the complaint, but such evidence shall be limited in scope to the allegations contained in the original complaint, and such complaint may not be supplemented or otherwise enlarged in scope.
4. If, after audit and investigation of the complaint and upon a vote of at least four members of the commission, the commission determines that there are reasonable grounds to believe that a violation of law has occurred within the jurisdiction of the commission, the commission shall proceed with such complaint as provided by sections 105.957 to 105.963, RSMo. If the commission does not determine that there are reasonable grounds to believe that such a violation of law has occurred, the complaint shall be dismissed. If a complaint is dismissed, the fact that such complaint was dismissed, with a statement of the nature of the complaint, shall be made public within twenty-four hours of the commission's action.
5. Except as provided in subsection 2 of this section, any complaint made pursuant to this section, and all proceedings and actions concerning such a complaint, shall be subject to the provisions of subsection 15 of section 105.961, RSMo.
6. No complaint shall be accepted by the commission within fifteen days prior to the primary or general election at which such candidate is running for office.
7. Except as provided in subsection 2 of this section, any complaint filed under this section shall be deemed a closed record under chapter 610, RSMo. No information relating to any complaint filed under this section shall be disclosed in any form to the public until the commission has completed the investigation of the complaint and has rendered its findings and conclusions on the complaint. Any person or entity who discloses any such information relating to a complaint before the commission has rendered its findings and conclusions on the complaint shall be subject to a civil penalty not to exceed two thousand five hundred dollars, and upon conviction, shall be subject to a criminal penalty of a fine not to exceed two thousand five hundred dollars or a term of imprisonment not to exceed one year, or both. The commission shall provide a method requiring the complainant to acknowledge that the complainant understands that the complaint is a closed record and to acknowledge that the complainant understands the penalties for violating this section in substantially the following form:
"This complaint is a closed record and is protected from disclosure under the authority of chapter 610, RSMo. Any person or entity who discloses any information contained in this complaint before the commission has rendered its findings and conclusions shall be subject to a civil penalty not to exceed two thousand five hundred dollars and, upon conviction, shall be subject to a criminal penalty of a fine not to exceed two thousand five hundred dollars or a term of imprisonment not to exceed one year, or both the fine and imprisonment.".
130.059. All persons requesting to inspect or copy disclosure reports made and filed under this chapter or chapter 105, RSMo, shall provide photo identification with which to compare and verify their signatures before the disclosure reports are made available for inspection or copying.
•