Chapter 03. Enforcement Procedures

“Hearing” means a hearing conducted by the Commission pursuant to General Provisions Article, §5-404, and the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

“Party” includes only the respondent and the staff counsel or other counsel designated by the Commission.

Preliminary Inquiry.

“Preliminary investigation” means the investigation conducted by the staff counsel or other investigator identified by the Commission, after a complaint has been accepted or issued and been referred by the Commission pursuant to General Provisions Article, §5-403, Annotated Code of Maryland.

“Respondent” includes, when appropriate to the context of this chapter, counsel speaking or acting on the respondent's behalf in connection with an enforcement matter subject to this chapter.

“Staff counsel” includes, when appropriate to the context of this chapter, any other person designated by the Commission to perform the functions of the staff counsel in accordance with this chapter.

General Rules.

Exceptions.

Information Provided to a Complainant.

Confidentiality after Hearing.

The staff counsel of the Commission may:

The Commission may:

The respondent may, as set forth in §C(4)—(6) of this regulation, use the subpoena power of the Commission in preparation for any hearing to be held in accordance with this chapter.

Respondent subpoenas pursuant to §C(3) of this regulation shall be issued only in response to a written request by or on behalf of the respondent received by the Commission not later than 10 working days before the date set for the hearing.

Respondent subpoenas pursuant to §C(3) of this regulation may be issued by the Commission or by the Commission Chairman acting on behalf of the Commission.

Service and enforcement of any respondent subpoena issued pursuant to §C(3) of this regulation is the responsibility of the respondent or other person acting on respondent's behalf, not of the Commission or its staff.

Subpoenas issued pursuant to this section and General Provisions Article, §§5-207 and 5-404, Annotated Code of Maryland, are judicially enforceable.

If, while an enforcement matter is being considered, it is determined that there are reasonable grounds to believe that the respondent may have committed a criminal offense, the Commission or the Commission's staff, upon direction from the Commission or the Chairman, shall refer the matter:

When an enforcement matter is referred to a prosecuting authority for evaluation or prosecution, the Commission may suspend action by the Commission or the Commission's staff on the matter pending completion of action by the prosecuting authority.

When an enforcement matter is referred to a prosecuting authority for evaluation or prosecution, the Commission shall make available to the prosecuting authority all pertinent evidence under the Commission's control.

Commission staff may consult with a prosecuting authority in connection with the possible referral of a matter.

Representation in connection with interviews of the respondent by the staff counsel;

Submission of any written or other materials on respondent's behalf in connection with the investigation; and

Personal appearance on respondent's behalf at any stage of the matter where respondent's appearance before the Commission is permitted or required.

Except as set forth in §F(2) of this regulation, service of any document required to be served by this chapter shall be by regular mail, postage prepaid, to the respondent or other addressee at their last known address.

Instead of service by mail, the hearing notice may be served by:

If required service is to a person represented by an attorney, mail or delivery to the attorney's last known business address is considered satisfactory service.

Arises from any source, including the consideration of an advisory opinion;

Involves past or ongoing conduct; and

Presents a possible violation of General Provisions Article, Title 5, Annotated Code of Maryland.

Collect and review information pertaining to a preliminary inquiry; and

Present this information to the Commission for its consideration.

The matter is not within the jurisdiction of the Commission;

The information presented does not support the filing of a complaint; or

Based on all the circumstances presented, further enforcement proceedings would not serve the purposes of General Provisions Article, Title 5, Annotated Code of Maryland.

Docketing the matter for consideration as an advisory opinion pursuant to COMAR 19A.01.02;

Letter or other informal advice; or

Other resolution agreed to by the subject.

A person may file a complaint with the Commission.

A complaint filed by a person pursuant to this section shall:

The Commission shall accept for further proceedings any complaint filed by a person pursuant to this section unless the complaint:

The Commission may issue a complaint on its own motion.

The Commission may issue a complaint pursuant to this section when:

A Commission complaint shall be:

Consistent with the requirements of §B of this regulation, the Commission may on its own motion issue an amended complaint in any complaint either accepted or issued pursuant to §A or B of this regulation.

An amended complaint may be issued based on additional information submitted by a complainant or on information available to the Commission as a result of a preliminary investigation and review as set forth in Regulations .05 and .06 of this chapter, and may either:

An amended complaint is subject to the same investigatory, review, and notice procedures as the original complaint.

The staff counsel shall collect evidence relating to the allegations of the complaint.

Evidence may be collected by personal interview, interrogatory, deposition, review of documents, or any other usual investigatory method.

In the collection of evidence pursuant to this section, the subpoena power of Regulation .01C(1) of this chapter may be relied upon to compel the attendance and testimony of witnesses and the production of books, papers, records, documents, or other tangible objects.

The staff counsel shall notify the complainant and the respondent of the anticipated presentation of the evidence to the Commission at least 15 days before presenting the evidence to the Commission.

The respondent may take action to cure all alleged violations within 15 days of receipt of the notification provided in accordance with §C(1) of this regulation, and advise the staff counsel of this action.

In response to the notification of §C(1) of this regulation, the respondent may also submit materials or other proposed resolution for consideration by or negotiation with the staff counsel.

The staff counsel shall provide the Commission with a preliminary report including all evidence collected relating to the allegations of the complaint.

The preliminary report to the Commission shall include any evidence of cure action taken by the respondent, any resolution of the complaint proposed by the respondent, and any other agreement or proposed resolution of the complaint agreed to by respondent and staff counsel.

The preliminary report may include a recommended disposition.

A proposed disposition or proposed resolution agreed to by staff counsel and the respondent is a recommendation only, and may not be binding on the Commission.

The report contains evidence of a cure of all violations, and dismissal would not be contrary to the purposes of General Provisions Article, Title 5, Annotated Code of Maryland;

The evidence does not raise sufficient likelihood of a violation of General Provisions Article, Title 5, Annotated Code of Maryland, to merit further proceedings; or

A proposed resolution agreed to by the staff counsel and the respondent is accepted and supports a conclusion that the matter does not merit further proceedings.

By written order signed by the Chairman or other designated member on behalf of the Commission; and

Served on the respondent as set forth in Regulation .02F of this chapter.

Statement of the time, place, and nature of the hearing;

Statement of the legal authority and jurisdiction under which the hearing is to be held;

Reference to the relevant sections of the statutes, regulations, and rules of procedure involved;

Short and simple statement of the matters asserted;

Statement that failure to appear for the scheduled hearing may result in adverse action against the respondent;

Statement that the respondent may agree to the evidence and waive the right to appear at the hearing; and

Statement of the respondent's right to:

Be based on admissions or stipulations of fact or law;

Recite actions taken or agreed to be taken by the parties;

Include any sanction, penalty, or action agreed to be imposed or taken as a result of Commission acceptance of the proposed settlement; and

Include any other provisions allowable by law that would define the framework for resolution of the matter.

Stipulation;

Consent order;

Waiver of hearing;

Settlement agreement; or

Other appropriate format.

The Commission may not be bound by a proposed settlement or other resolution reached by the staff counsel and the respondent, and may accept or reject the proposed resolution as the purposes of the Ethics Law may require.

A settlement accepted by the Commission may form the basis for final action by the Commission to be reflected in a final order issued pursuant to Regulation .11 of this chapter.

The respondent has the right to inspect and to copy any document that is accessible under the Maryland Public Information Act, General Provisions Article, §§4-101—4-601, Annotated Code of Maryland, as set forth in COMAR 19A.01.01.04.

If a prehearing conference is not held, the respondent and the staff counsel shall submit to the general counsel, at least 10 working days before the scheduled date of the hearing:

The Chairman may prohibit the introduction of documentary or testimonial evidence not disclosed before the hearing as provided in §A(2) of this regulation.

In its discretion, the Commission may direct the Chairman or another designated member to conduct a prehearing conference in any matter scheduled for a hearing pursuant to Regulation .07 of this chapter, either on the initiative of the Commission or at the request of the staff counsel or the respondent.

Notice shall be provided to the staff counsel and respondent of the date, time, and place of a prehearing conference called pursuant to §B(1) of this regulation, as set forth in Regulation .02F of this chapter.

A prehearing conference shall be designed to simplify the hearing by resolving preliminary matters, and may address the following:

The proceedings at a prehearing conference shall be recorded.

The Chairman or other member may issue a prehearing order that:

Comments on or disagreement by the staff counsel or respondent with the prehearing order shall be filed with the Chairman or other member not later than 5 working days after service of the prehearing order. A dispute shall be ruled upon by the Chairman or other member before the hearing.

A prehearing order issued pursuant to §B(6) of this regulation is a part of the complaint record.

Except for extraordinary situations or as otherwise provided in these regulations, preliminary matters requiring a formal ruling shall be raised by motions at either the prehearing conference or at least 15 working days before the hearing.

Motions shall be in writing and state briefly the relief applied for and the grounds for the motion and, when appropriate, be supported by a memorandum of points and authorities.

A response to a motion shall be filed with the Commission within 10 working days after receiving the initial motion.

A motion or response shall be served on the opposing party as set forth in Regulation .02F of this chapter.

The Chairman may rule on the motion at any time before, during, or after the hearing.

Upon request from the staff counsel or the respondent, the Chairman may grant a postponement of the hearing for good cause as set forth in this section.

Requests for postponement shall be confirmed in writing, served on the opposing party as set forth in Regulation .02F of this chapter, and shall include:

Requests for postponement shall:

Whenever feasible, a postponed hearing that is to be held shall be rescheduled within 60 days of the date the hearing was originally scheduled.

If after receiving proper notice a party fails to attend or participate in the hearing, the party shall be considered in default and the hearing may be conducted and the issues finally determined in the party's absence.

Within 10 days after mailing of a final decision following a default, the party may file a written request that the decision be vacated, stating the reasons relied upon.

The final decision may be vacated by the Commission if it is found that there is an:

A Commission hearing conducted pursuant to this chapter shall be conducted by the Chairman or another member designated by the Commission. The member so designated may exercise all powers assigned to the Chairman by this section.

The Chairman shall convene the hearing and shall place the complaint, hearing notices, and other appropriate documents in the record.

The Chairman has the power to:

Present opening and closing statements;

Call witnesses and present evidence;

Cross-examine every witness called by the Commission or any other party;

Impeach any witness regardless of which party first called the witness to testify; and

Rebut all evidence presented.

The Commission staff counsel shall be responsible for presenting evidence to the Commission in connection with a complaint proceeding subject to a hearing under this regulation, and may not be part of the decisional process in connection with a complaint. The general counsel of the Commission, or other individual designated by the Commission, shall be the legal advisor to the Commission regarding complaint proceedings and in that capacity is considered to be part of the decisional process.

The staff counsel, the Executive Director, respondent, respondent's counsel, and any other individual not involved in the decisional process may not communicate ex parte with any member of the Commission or with the general counsel regarding any issue of fact or law in connection with a complaint being heard pursuant to this regulation. The Commission may communicate with members of an advisory staff, including the general counsel, who participate as part of the decisional process.

Ex parte communications received in violation of §D(2) of this regulation shall be placed in the record and disclosed to all parties, who shall then have 10 days within which to rebut them.

The general counsel or any member of the Commission may, if he or she considers it necessary to eliminate the effect of a prohibited ex parte communication, disqualify himself or herself from further participation in the hearing.

Evidence shall be presented by the parties at the hearing consistent with terms agreed to in a prehearing conference or as set forth in any schedules previously exchanged by the parties in anticipation of the hearing, unless a deviation from the agreed upon process is expressly allowed by the Chairman.

The staff counsel shall present to the Commission evidence collected in the investigation relating to the complaint that is:

The respondent may present evidence either through counsel or on the respondent's own behalf that is:

Evidence shall be received by the Commission in accordance with the following principles:

Verbatim Record.

An official record of the hearing shall be developed, including the following:

Made in accordance with its regular procedures as set forth in COMAR 19A.01.01; and

Based on a preponderance of the evidence presented at the hearing as set forth in Regulation .10E of this chapter.

Includes findings of facts and conclusions of law for each of the violations alleged in the hearing notice; and

Disposes of all disputed issues referenced in the hearing notice.

Issue an order dismissing the complaint; and

Promptly send a copy of the order to the complainant and the respondent.

If the Commission finds that the respondent has violated any of the provisions of General Provisions Article, Title 5, Annotated Code of Maryland, the Commission may take any action authorized in General Provisions Article, §5-405 or Title 5, Subtitle 9, Annotated Code of Maryland.

In determining the sanctions to impose in a matter involving a finding of a violation of General Provisions Article, Title 5, Subtitle 7, Annotated Code of Maryland, the Commission may consider all relevant factors, including: