Section 40IAC2-3-2. Investigations

   (a) The commission shall enforce the statutes and rules under its jurisdiction primarily by means of its own independent staff investigations and commission hearings. The process may include confidential commission determination of sufficient evidence to warrant an investigation, confidential investigation and commission determination of probable cause, and public hearing.

  (b) An investigation may be initiated by any of the following:

(1) The commission.

(2) Request of the governor.

(3) A complaint filed by an individual with direct knowledge of facts central to an alleged violation.

  (c) The procedure for investigation on commission initiative shall be as follows:

(1) The commission may use information received in any way to form the basis for an investigation. When information is received, the director shall first determine whether the information indicates a possible violation of statute or rule within the commission's jurisdiction. If the information indicates a possible violation of statute or rule within the commission's jurisdiction, the director may instruct the commission's investigator to do preliminary factfinding or refer the matter to an appropriate investigative authority. In either case, the commission shall be informed at its next meeting of the action taken. The factfinding shall be for the purpose of providing the commission with verified information by determining if the allegation's facts are correct. Upon completion of this preliminary factfinding, the matter shall be brought to the commission for determination under IC 4-2-6-4(a)(1) whether the commission wants to initiate an investigation.

(2) The investigation is initiated by adoption of a resolution of the commission stating the nature and scope of the investigation and actions or activities to be investigated.

(3) A copy of the resolution stating the nature of the investigation and a general statement of the applicable statute or rule with respect to the investigation shall be sent to the respondent.

  (d) The procedure for investigation on receipt of a request of the governor shall be as follows:

(1) The director shall instruct the commission's investigator to proceed with an investigation or shall refer the matter to an appropriate investigative authority. In either case, the commission shall be informed at its next meeting of action taken.

(2) A copy of the governor's request for an investigation shall be sent to the respondent.

  (e) Investigation on receipt of a complaint shall be as follows:

(1) All complaints to be considered by the commission shall be filed in writing with the commission and shall contain the following:

(A) The name and address of the person or persons who filed the complaint.

(B) The name and address of the person against whom the complaint is filed.

(C) The state government position, if applicable, held by the person against whom the complaint is filed.

(D) A clear and concise statement of the facts upon which the complaint is based.

(E) Which sections of statute or rule are alleged to be violated.

(F) A statement of the facts as to which the complainant has personal knowledge.

(G) The names and addresses of other persons having personal knowledge of the acts complained of and the nature and extent of each person's knowledge.

(H) Verification under penalty of perjury that the facts stated are true to the best of the complainant's knowledge and the signature of the complainant.

(2) The complaint shall include the following: "If the commission finds, after preliminary investigation, that probable cause exists to support the alleged violation, I agree to be called as a witness to testify to the charge above set forth, under oath. The state ethics commission requests you keep confidential the filing of this complaint and facts involved, except from those people directly involved in the investigation of this matter.".

(3) A complaint dismissed under IC 4-2-6-4(b)(2)(A)(i) or IC 4-2-6-4(b)(2)(A)(ii) will not again be entertained by the commission unless the commission is provided with new facts which materially add to the complaint.

  (f) Upon receipt of a copy of the resolution of the commission, a copy of the request of the governor to initiate an investigation, or a copy of the complaint, the respondent may respond in writing within twenty (20) days to the allegations if he or she so desires.

  (g) During investigations, the procedure shall be as follows:

(1) The scope of investigations shall be limited to the allegations, but shall include an investigation of all facts and persons materially related to the allegations at issue.

(2) If, during the course of an investigation, evidence of a wrongful act not materially related to the allegations at issue is discovered, such evidence shall be reported to the commission in a separate report. The wrongful act shall not be further investigated in the absence of direction from the commission with respect thereto. Upon receipt of a separate report containing evidence of the wrongful act not materially related to the allegations at issue, the commission may:

(A) forward evidence of the commission of a crime to the appropriate law enforcement official;

(B) forward evidence of the commission of any other wrongful act to the appropriate disciplinary or law enforcement official; or

(C) decide to initiate its own investigation.

  (h) At the conclusion of its investigation, the commission shall make a determination of whether or not probable cause exists to believe that a violation of IC 4-2-6-4, 40 IAC 2-1, or any other statute or rule governing official conduct of state officers or employees has occurred. The procedure shall be as follows:

(1) If the commission determines that probable cause does not exist to believe a violation has occurred, the commission shall immediately send written notice of such a determination to the respondent and, if a complaint has been filed, to the party who made the complaint or, if the investigation was initiated at the governor's request, to the governor.

(2) If the commission determines that there is probable cause to believe that a violation has been committed, it shall state the name of the person alleged to have committed a violation, a citation to the statute or rule that may have been violated, and the particulars of the alleged violation or violations which may include violations the commission has, as a result of its investigation, probable cause to believe have occurred which were not contained in the complaint, resolution, or governor's request. The director shall notify the respondent, the complainant, and the office or appointing authority, if any, of the date, time, and place of the public hearing. The respondent shall be mailed a written notice by certified mail, return receipt requested, in accordance with IC 4-2-6-4(b)(2)(C) and IC 4-21.5-3.

  (i) An investigation conducted prior to a probable cause finding shall be confidential except the respondent may, in writing at any time, elect to waive the confidentiality protection of IC 4-2-6-4. If the respondent has agreed in writing to waive confidentiality, the commission may in its discretion release any information at any time. The commission may deem public statements by a respondent concerning the substance of the investigation to be a waiver of confidentiality. In any case, the identity of the complainant or information as to how the investigation was initiated shall be disclosed to the respondent.

(1) During an investigation, the procedures concerning confidentiality shall be as follows:

(A) If the investigation is confidential, the allegations and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by the commission, or a staff member except as necessary to conduct the investigation.

(B) An employee of the commission may acknowledge the existence and scope of an investigation along with a statement that no finding of probable cause has been made and that no adverse inference of impropriety or guilt should be drawn from the decision to investigate.

(2) From the initiation of an investigation and during the pendency of an investigation until a finding of probable cause has been made, the proceedings of the commission shall be in executive session, and the activities of commission staff in connection with the investigation shall be confidential.

(3) If the commission determines that no probable cause exists, all records of the investigation shall be kept confidential by the commission unless the respondent has waived confidentiality. The respondent may request that any of the persons interviewed be informed that the commission did not find probable cause. The respondent is not entitled to examine documents or records obtained or prepared by the commission in connection with the investigation, unless the respondent has waived confidentiality. An employee of the commission may acknowledge that the commission did not find probable cause to support an alleged violation.

(4) No provisions of this section shall prevent the commission from forwarding a copy of a complaint or any other relevant information to the attorney general, the prosecuting attorney of the county in which the alleged violation occurred, the state board of accounts, a state officer, the appointing authority, or other appropriate authority for action, and staying the commission's proceedings pending the other action.

  (j) After a reasonable period of time, the commission may review the matter again if the person or agency to which the complaint was forwarded fails or refuses to take action in regard to the matter and the commission may vote to proceed. (State Ethics Commission; 40 IAC 2-3-2; filed Oct 22, 1991, 11:10 a.m.: 15 IR 205; readopted filed Aug 2, 2001, 3:15 p.m.: 24 IR 4227; readopted filed Nov 29, 2007, 11:14 a.m.: 20071226-IR-040070658RFA; readopted filed Sep 30, 2013, 1:33 p.m.: 20131030-IR-040130243RFA)