Brief Overview of Enforcement Hearing Process
The Director of Enforcement initiates probable cause proceedings by serving a Probable Cause Report on each respondent and the Executive Director. The Probable Cause Report identifies the alleged violations, summarizes the laws at issue, and states the evidence gathered through the investigation, including any exculpatory and mitigating information of which Staff has knowledge. Each respondent may submit a written Response to the Probable Cause Report. The Director of Enforcement may submit evidence or argument in rebuttal.
The Executive Director, the Director of Enforcement, or any respondent may request a Probable Cause Conference. The respondent may be present and represented by legal counsel or another representative. The Executive Director may allow witnesses to participate and may permit the submission of additional evidence. Probable Cause Conferences are confidential and closed to the public unless the respondent requests, and all other respondents agree, that the conference be open to the public.
The Executive Director will make a written Probable Cause Determination based on the evidence and argument presented in the Probable Cause Report, Response, and Rebuttal, as well as any evidence or argument presented at the Probable Cause Conference. The Executive Director may make a finding of probable cause if the evidence is sufficient to lead a person of ordinary caution and prudence to believe or entertain a strong suspicion that a respondent committed or caused a violation. A finding of probable cause does not constitute a finding that a violation has occurred. If the Executive Director makes a finding of probable cause, the Executive Director will publish a Probable Cause Determination Report on the Commission’s website.
If the Executive Director determines that probable cause does not exist, the Executive Director will issue a confidential finding of no probable cause. The finding will be transmitted to the Commission, and any Commissioner may request review by the full Commission in closed session. If a Commissioner timely requests review, the finding will not become final unless at least three Commissioners vote to ratify it. If no Commissioner timely requests review, the finding becomes final upon expiration of the review period. Once the finding becomes final, the case will be closed, and the Commission and Enforcement Division will take no further action with respect to the allegations contained in the case, except as provided in Sections 4(G) and 4(H) of the Enforcement Regulations.
Following a finding of probable cause, the matter may proceed to pre-hearing matters. The Commission may delegate authority to preside over preliminary matters to a pre-hearing officer. The matter may then proceed to a Hearing on the Merits, over which the Commission may preside or may delegate authority to a hearing officer.
The Hearing on the Merits is open to the public. The Enforcement Division and each respondent may present witnesses, documentary evidence, and oral arguments. The Commission or hearing officer may rule on objections and the admission of evidence, and Commissioners may question witnesses. The Commission will determine whether the respondent has committed a violation of law. At least three Commissioners must vote to find a violation and to impose orders or penalties. The Commission’s Final Orders issued following a Hearing on the Merits are posted on the Commission’s website.
An enforcement matter may be settled through a stipulated settlement at any time, including during the hearing process.
Details concerning probable cause proceedings, pre-hearing matters, and hearings on the merits are set forth in the Commission’s Enforcement Regulations.