§ 31-76. Procedures for review and hearing of complaints.

(a)

Upon being forwarded a complaint pursuant to section 31-75, the hearing officer shall review same to determine if the complaint is unjustified, frivolous or patently unfounded. A frivolous, unjustified or patently unfounded complaint shall mean a complaint clearly unsupported by evidence or law which is brought for no other reason than to waste time and be a nuisance to the accused and/or convoluted in reasoning to a point where a reasonable person is unable to clearly establish how the actions alleged by the complainant serve as a violation of this article. The hearing officer may take into consideration any relationship between the complainant and the accused, previous allegations by complainant against the accused, the timing of the complaint and any political or other improper motive for filing said complaint. If the hearing officer determines that the complaint is frivolous, unjustified or patently unfounded, the hearing officer shall dismiss the complaint and notify the complainant and accused of said dismissal in writing within 15 days of receiving the complaint.

(b)

Upon a determination that a complaint should not be dismissed pursuant to subsection (a) of this section 31-76, the hearing officer shall be empowered to collect evidence and information concerning any complaint and to add the findings and results of his investigation to the file containing said complaint. In furtherance of this investigation, the hearing officer may:

(1)

First, seek such further information from the complainant or the public servant charged through inquiry or written questions; provided, however, the public servant charged shall have no obligation to answer any inquiries. Upon collection of such additional evidence, if the hearing officer determines that the complaint demonstrates facts sufficient to invoke disciplinary jurisdiction, the hearing officer shall conduct a hearing.

(2)

During said hearing which is conducted to determine whether a violation of this article has occurred:

a.

The person under investigation, or the accused, shall receive written notice of the hearing at least 14 days in advance of the first hearing from the city clerk (or assistant city clerk if the city clerk is the subject of the complaint) and may be represented by counsel of his or her choosing; and

b.

The accused or his representative, if any, shall have an opportunity to:

1.

Challenge the sufficiency of any complaint which has been filed against him;

2.

Examine all documents and records obtained or prepared by the hearing officer in connection with the matter heard;

3.

Bring witnesses;

4.

Establish all pertinent facts and circumstances;

5.

Question or refute testimony or evidence, including the opportunity to confront and cross examine adverse witnesses;

6.

Exercise, to the extent the hearing officer, in his discretion, determines to be just and reasonable, any pretrial discovery procedure usually available in civil actions; and

7.

During said hearing, the statutory rules of evidence shall not strictly apply.

(3)

During said hearing, the hearing officer shall serve as the magistrate of the proceeding and the ethics board shall serve as the "jury," and shall have the right, at the conclusion of the hearing, to ask the hearing officer questions concerning the law to be applied and clarification on any evidence presented at the hearing.

(4)

The burden shall be on the complainant to show, by clear and convincing evidence, that the accused public servant has violated the provisions of this article.

(c)

Within ten days of the hearing, the ethics board shall meet to determine whether the complainant has proven, by clear and convincing evidence that the accused public servant has violated the provisions of this article. The hearing officer shall be present at said meeting to answer any questions of the board regarding any aspect of the hearing. If the board determines by majority vote that the burden has not been met, the board shall dismiss the complaint with prejudice.

(d)

If the board determines, by majority vote, that the accused public servant violated the provisions of this article, the board shall recommend punishment for said violation to the mayor and city council by stating so on the record, which shall be transmitted to the mayor and city council within five days of the conclusion of the board's determination.

(e)

The report of the board, as well as all documentation gathered by the hearing officer as part of each complaint and as presented in any evidentiary hearing, shall be subject to the requirements of the Georgia Open Records Act and all meetings of the board, including the evidentiary hearing where the board serves as "jury," shall be subject to the requirements of the Georgia Open Meetings Act.

(Ord. No. 660, pt. I, 11-19-13)