105.961. Special investigator--report--commission review, determination--special prosecutor--hearings--action of commission--formal proceedings--appropriate disciplinary authorities--powers of investi
Special investigator--report--commission review,determination--special prosecutor--hearings--action ofcommission--formal proceedings--appropriate disciplinaryauthorities--powers of investigators--fees andexpenses--confidentiality, penalty--compensation.
105.961. 1. Upon receipt of a complaint as described by section105.957, the commission shall assign the complaint to a specialinvestigator, who may be a commission employee, who shall investigate anddetermine the merits of the complaint. Within ten days of such assignment,the special investigator shall review such complaint and disclose, inwriting, to the commission any conflict of interest which the specialinvestigator has or might have with respect to the investigation andsubject thereof. Within one hundred twenty days of receipt of thecomplaint from the commission, the special investigator shall submit thespecial investigator's report to the commission. The commission, afterreview of such report, shall determine:
(1) That there is reasonable grounds for belief that a violation hasoccurred; or
(2) That there are no reasonable grounds for belief that a violationexists 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 additionalsuccessive periods of one hundred twenty days each, pending reportsregarding the status and progress of the investigation at the end of eachsuch period.
2. When the commission concludes, based on the report from thespecial investigator, or based on an audit conducted pursuant to section105.959, that there are reasonable grounds to believe that a violation ofany criminal law has occurred, and if the commission believes that criminalprosecution would be appropriate upon a vote of four members of thecommission, the commission shall refer the report to the Missouri office ofprosecution services, prosecutors coordinators training council establishedin section 56.760, RSMo, which shall submit a panel of five attorneys forrecommendation to the court having criminal jurisdiction, for appointmentof an attorney to serve as a special prosecutor; except that, the attorneygeneral of Missouri or any assistant attorney general shall not act as suchspecial prosecutor. The court shall then appoint from such panel a specialprosecutor pursuant to section 56.110, RSMo, who shall have all the powersprovided by section 56.130, RSMo. The court shall allow a reasonable andnecessary attorney's fee for the services of the special prosecutor. Suchfee shall be assessed as costs if a case is filed, or ordered by the courtif no case is filed, and paid together with all other costs in theproceeding by the state, in accordance with rules and regulationspromulgated by the state courts administrator, subject to fundsappropriated to the office of administration for such purposes. If thecommission does not have sufficient funds to pay a special prosecutor, thecommission shall refer the case to the prosecutor or prosecutors havingcriminal jurisdiction. If the prosecutor having criminal jurisdiction isnot able to prosecute the case due to a conflict of interest, the court mayappoint a special prosecutor, paid from county funds, upon appropriation bythe county or the attorney general to investigate and, if appropriate,prosecute the case. The special prosecutor or prosecutor shall commence anaction based on the report by the filing of an information or seeking anindictment within sixty days of the date of such prosecutor's appointment,or shall file a written statement with the commission explaining whycriminal charges should not be sought. If the special prosecutor orprosecutor fails to take either action required by this subsection, uponrequest of the commission, a new special prosecutor, who may be theattorney general, shall be appointed. The report may also be referred tothe appropriate disciplinary authority over the person who is the subjectof the report.
3. When the commission concludes, based on the report from thespecial investigator or based on an audit conducted pursuant to section105.959, that there are reasonable grounds to believe that a violation ofany law has occurred which is not a violation of criminal law or thatcriminal prosecution is not appropriate, the commission shall conduct ahearing which shall be a closed meeting and not open to the public. Thehearing shall be conducted pursuant to the procedures provided by sections536.063 to 536.090, RSMo, and shall be considered to be a contested casefor purposes of such sections. The commission shall determine, in itsdiscretion, whether or not that there is probable cause that a violationhas occurred. If the commission determines, by a vote of at least fourmembers of the commission, that probable cause exists that a violation hasoccurred, the commission may refer its findings and conclusions to theappropriate disciplinary authority over the person who is the subject ofthe report, as described in subsection 7 of this section. After thecommission determines by a vote of at least four members of the commissionthat probable cause exists that a violation has occurred, and thecommission has referred the findings and conclusions to the appropriatedisciplinary authority over the person subject of the report, the subjectof the report may appeal the determination of the commission to theadministrative hearing commission. Such appeal shall stay the action ofthe Missouri ethics commission. Such appeal shall be filed not later thanthe fourteenth day after the subject of the commission's action receivesactual notice of the commission's action.
4. If the appropriate disciplinary authority receiving a report fromthe commission pursuant to subsection 3 of this section fails to follow,within sixty days of the receipt of the report, the recommendationscontained in the report, or if the commission determines, by a vote of atleast four members of the commission that some action other than referralfor criminal prosecution or for action by the appropriate disciplinaryauthority would be appropriate, the commission shall take any one or moreof the following actions:
(1) Notify the person to cease and desist violation of any provisionof law which the report concludes was violated and that the commission mayseek judicial enforcement of its decision pursuant to subsection 5 of thissection;
(2) Notify the person of the requirement to file, amend or correctany report, statement, or other document or information required bysections 105.473, 105.483 to 105.492, or chapter 130, RSMo, and that thecommission may seek judicial enforcement of its decision pursuant tosubsection 5 of this section; and
(3) File the report with the executive director to be maintained as apublic 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 wouldbe maintained as a public document; or
(6) Through reconciliation agreements or civil action, the power toseek fees for violations in an amount not greater than one thousand dollarsor double the amount involved in the violation.
5. Upon vote of at least four members, the commission may initiateformal judicial proceedings seeking to obtain any of the following orders:
(1) Cease and desist violation of any provision of sections 105.450to 105.496, or chapter 130, RSMo, or sections 105.955 to 105.963;
(2) Pay any civil penalties required by sections 105.450 to 105.496or chapter 130, RSMo;
(3) File any reports, statements, or other documents or informationrequired by sections 105.450 to 105.496, or chapter 130, RSMo; or
(4) Pay restitution for any unjust enrichment the violator obtainedas a result of any violation of any criminal statute as described insubsection 6 of this section.
The Missouri ethics commission shall give actual notice to the subject ofthe complaint of the proposed action as set out in this section. Thesubject of the complaint may appeal the action of the Missouri ethicscommission, other than a referral for criminal prosecution, to theadministrative hearing commission. Such appeal shall stay the action ofthe Missouri ethics commission. Such appeal shall be filed no later thanfourteen days after the subject of the commission's actions receives actualnotice of the commission's actions.
6. In the proceeding in circuit court, the commission may seekrestitution against any person who has obtained unjust enrichment as aresult of violation of any provision of sections 105.450 to 105.496, orchapter 130, RSMo, and may recover on behalf of the state or politicalsubdivision with which the alleged violator is associated, damages in theamount of any unjust enrichment obtained and costs and attorney's fees asordered by the court.
7. The appropriate disciplinary authority to whom a report shall besent pursuant to subsection 2 or 3 of this section shall include, but notbe limited to, the following:
(1) In the case of a member of the general assembly, the ethicscommittee 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 anappointive office of the state, if the alleged violation is an impeachableoffense, the report shall be referred to the ethics committee of the houseof representatives;
(3) In the case of a person holding an elective office of a politicalsubdivision, the report shall be referred to the governing body of thepolitical subdivision;
(4) In the case of any officer or employee of the state or of apolitical subdivision, the report shall be referred to the person who hasimmediate supervisory authority over the employment by the state or by thepolitical subdivision of the subject of the report;
(5) In the case of a judge of a court of law, the report shall bereferred to the commission on retirement, removal and discipline, or if theinquiry involves an employee of the judiciary to the applicable presidingjudge;
(6) In the case of a person holding an appointive office of thestate, if the alleged violation is not an impeachable offense, the reportshall be referred to the governor;
(7) In the case of a statewide elected official, the report shall bereferred to the attorney general;
(8) In a case involving the attorney general, the report shall bereferred to the prosecuting attorney of Cole County.
8. The special investigator having a complaint referred to thespecial investigator by the commission shall have the following powers:
(1) To request and shall be given access to information in thepossession of any person or agency which the special investigator deemsnecessary 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 forconfidentiality;
(3) To administer oaths and affirmations;
(4) Upon refusal by any person to comply with a request forinformation relevant to an investigation, an investigator may issue asubpoena for any person to appear and give testimony, or for a subpoenaduces tecum to produce documentary or other evidence which the investigatordeems relevant to a matter under the investigator's inquiry. The subpoenasand subpoenas duces tecum may be enforced by applying to a judge of thecircuit court of Cole County or any county where the person or entity thathas been subpoenaed resides or may be found, for an order to show cause whythe subpoena or subpoena duces tecum should not be enforced. The order anda copy of the application therefor shall be served in the same manner as asummons in a civil action, and if, after hearing, the court determines thatthe subpoena or subpoena duces tecum should be sustained and enforced, thecourt shall enforce the subpoena or subpoena duces tecum in the same manneras if it had been issued by the court in a civil action; and
(5) To request from the commission such investigative, clerical orother staff assistance or advancement of other expenses which are necessaryand convenient for the proper completion of an investigation. Within thelimits of appropriations to the commission, the commission may provide suchassistance, whether by contract to obtain such assistance or from staffemployed by the commission, or may advance such expenses.
9. (1) Any retired judge may request in writing to have the judge'sname removed from the list of special investigators subject to appointmentby the commission or may request to disqualify himself or herself from anyinvestigation. Such request shall include the reasons for seeking removal;
(2) By vote of four members of the commission, the commission maydisqualify a judge from a particular investigation or may permanentlyremove the name of any retired judge from the list of special investigatorssubject to appointment by the commission.
10. Any person who is the subject of any investigation pursuant tothis section shall be entitled to be represented by counsel at anyproceeding before the special investigator or the commission.
11. The provisions of sections 105.957, 105.959 and 105.961 are inaddition to other provisions of law under which any remedy or right ofappeal or objection is provided for any person, or any procedure providedfor inquiry or investigation concerning any matter. The provisions of thissection shall not be construed to limit or affect any other remedy or rightof appeal or objection.
12. No person shall be required to make or file a complaint to thecommission as a prerequisite for exhausting the person's administrativeremedies before pursuing any civil cause of action allowed by law.
13. If, in the opinion of the commission, the complaining party wasmotivated by malice or reason contrary to the spirit of any law on whichsuch complaint was based, in filing the complaint without just cause, thisfinding shall be reported to appropriate law enforcement authorities. Anyperson who knowingly files a complaint without just cause, or with malice,is guilty of a class A misdemeanor.
14. A respondent party who prevails in a formal judicial actionbrought by the commission shall be awarded those reasonable fees andexpenses incurred by that party in the formal judicial action, unless thecourt finds that the position of the commission was substantially justifiedor that special circumstances make such an award unjust.
15. The special investigator and members and staff of the commissionshall maintain confidentiality with respect to all matters concerning acomplaint until and if a report is filed with the commission, with theexception of communications with any person which are necessary to theinvestigation. The report filed with the commission resulting from acomplaint acted upon under the provisions of this section shall not containthe name of the complainant or other person providing information to theinvestigator, if so requested in writing by the complainant or such otherperson. Any person who violates the confidentiality requirements imposedby this section or subsection 17 of section 105.955 required to beconfidential is guilty of a class A misdemeanor and shall be subject toremoval from or termination of employment by the commission.
16. Any judge of the court of appeals or circuit court who ceases tohold such office by reason of the judge's retirement and who serves as aspecial investigator pursuant to this section shall receive annualcompensation, salary or retirement for such services at the rates ofcompensation provided for senior judges by subsections 1, 2 and 4 ofsection 476.682, RSMo. Such retired judges shall by the tenth day of eachmonth following any month in which the judge provided services pursuant tothis section certify to the commission and to the state courtsadministrator the amount of time engaged in such services by hour orfraction thereof, the dates thereof, and the expenses incurred andallowable pursuant to this section. The commission shall then issue awarrant to the state treasurer for the payment of the salary and expensesto the extent, and within limitations, provided for in this section. Thestate treasurer upon receipt of such warrant shall pay the same out of anyappropriations made for this purpose on the last day of the month duringwhich the warrant was received by the state treasurer.
(L. 1991 S.B. 262 § 4, A.L. 1997 S.B. 16)