Missouri Revised Statutes













Chapter 105

Public Officers and Employees--Miscellaneous Provisions

←105.961

Section 105.961.2

105.962→

August 28, 2015

Special investigator--report--commission review, determination--special prosecutor--hearings--action of commission--formal proceedings--appropriate disciplinary authorities--powers of investigators--fees and expenses--confidentiality, penalty--compensation.

105.961. 1. Upon receipt of a complaint as described by section

105.957, the commission shall assign the complaint to a special investigator,

who may be a commission employee, who shall investigate and determine the

merits of the complaint. Within ten days of such assignment, the special

investigator shall review such complaint and disclose, in writing, to the

commission any conflict of interest which the special investigator has or

might have with respect to the investigation and subject thereof. Within one

hundred twenty days of receipt of the complaint from the commission, the

special investigator shall submit the special investigator's report to the

commission. The commission, after review of such report, shall determine:



(1) That there is reasonable grounds for belief that a violation has

occurred; or



(2) That there are no reasonable grounds for belief that a violation

exists 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 additional successive

periods of one hundred twenty days each, pending reports regarding the status

and progress of the investigation at the end of each such period.



2. When the commission concludes, based on the report from the special

investigator, or based on an audit conducted pursuant to section 105.959, that

there are reasonable grounds to believe that a violation of any criminal law

has occurred, and if the commission believes that criminal prosecution would

be appropriate upon a vote of four members of the commission, the commission

shall refer the report to the Missouri office of prosecution services,

prosecutors coordinators training council established in section 56.760, which

shall submit a panel of five attorneys for recommendation to the court having

criminal jurisdiction, for appointment of an attorney to serve as a special

prosecutor; except that, the attorney general of Missouri or any assistant

attorney general shall not act as such special prosecutor. The court shall

then appoint from such panel a special prosecutor pursuant to section 56.110

who shall have all the powers provided by section 56.130. The court shall

allow a reasonable and necessary attorney's fee for the services of the

special prosecutor. Such fee shall be assessed as costs if a case is filed,

or ordered by the court if no case is filed, and paid together with all other

costs in the proceeding by the state, in accordance with rules and regulations

promulgated by the state courts administrator, subject to funds appropriated

to the office of administration for such purposes. If the commission does not

have sufficient funds to pay a special prosecutor, the commission shall refer

the case to the prosecutor or prosecutors having criminal jurisdiction. If

the prosecutor having criminal jurisdiction is not able to prosecute the case

due to a conflict of interest, the court may appoint a special prosecutor,

paid from county funds, upon appropriation by the county or the attorney

general to investigate and, if appropriate, prosecute the case. The special

prosecutor or prosecutor shall commence an action based on the report by the

filing of an information or seeking an indictment within sixty days of the

date of such prosecutor's appointment, or shall file a written statement with

the commission explaining why criminal charges should not be sought. If the

special prosecutor or prosecutor fails to take either action required by this

subsection, upon request of the commission, a new special prosecutor, who may

be the attorney general, shall be appointed. The report may also be referred

to the appropriate disciplinary authority over the person who is the subject

of the report.



3. When the commission concludes, based on the report from the special

investigator or based on an audit conducted pursuant to section 105.959, that

there are reasonable grounds to believe that a violation of any law has

occurred which is not a violation of criminal law or that criminal prosecution

is not appropriate, the commission shall conduct a hearing which shall be a

closed meeting and not open to the public. The hearing shall be conducted

pursuant to the procedures provided by sections 536.063 to 536.090 and shall

be considered to be a contested case for purposes of such sections. The

commission shall determine, in its discretion, whether or not that there is

probable cause that a violation has occurred. If the commission determines,

by a vote of at least four members of the commission, that probable cause

exists that a violation has occurred, the commission may refer its findings

and conclusions to the appropriate disciplinary authority over the person who

is the subject of the report, as described in subsection 7 of this section.

After the commission determines by a vote of at least four members of the

commission that probable cause exists that a violation has occurred, and the

commission has referred the findings and conclusions to the appropriate

disciplinary authority over the person subject of the report, the subject of

the report may appeal the determination of the commission to the

administrative hearing commission. Such appeal shall stay the action of the

Missouri ethics commission. Such appeal shall be filed not later than the

fourteenth day after the subject of the commission's action receives actual

notice of the commission's action.



4. If the appropriate disciplinary authority receiving a report from the

commission pursuant to subsection 3 of this section fails to follow, within

sixty days of the receipt of the report, the recommendations contained in the

report, or if the commission determines, by a vote of at least four members of

the commission that some action other than referral for criminal prosecution

or for action by the appropriate disciplinary authority would be appropriate,

the commission shall take any one or more of the following actions:



(1) Notify the person to cease and desist violation of any provision of

law which the report concludes was violated and that the commission may seek

judicial enforcement of its decision pursuant to subsection 5 of this section;



(2) Notify the person of the requirement to file, amend or correct any

report, statement, or other document or information required by sections

105.473, 105.483 to 105.492, or chapter 130 and that the commission may seek

judicial enforcement of its decision pursuant to subsection 5 of this section;

and



(3) File the report with the executive director to be maintained as a

public 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 would be

maintained as a public document; or



(6) Through reconciliation agreements or civil action, the power to seek

fees for violations in an amount not greater than one thousand dollars or

double the amount involved in the violation.



5. Upon vote of at least four members, the commission may initiate

formal judicial proceedings seeking to obtain any of the following orders:



(1) Cease and desist violation of any provision of sections 105.450 to

105.496, or chapter 130, or sections 105.955 to 105.963;



(2) Pay any civil penalties required by sections 105.450 to 105.496 or

chapter 130;



(3) File any reports, statements, or other documents or information

required by sections 105.450 to 105.496, or chapter 130; or



(4) Pay restitution for any unjust enrichment the violator obtained as a

result of any violation of any criminal statute as described in subsection 6

of this section.

The Missouri ethics commission shall give actual notice to the subject of the

complaint of the proposed action as set out in this section. The subject of

the complaint may appeal the action of the Missouri ethics commission, other

than a referral for criminal prosecution, to the administrative hearing

commission. Such appeal shall stay the action of the Missouri ethics

commission. Such appeal shall be filed no later than fourteen days after the

subject of the commission's actions receives actual notice of the commission's

actions.



6. In the proceeding in circuit court, the commission may seek

restitution against any person who has obtained unjust enrichment as a result

of violation of any provision of sections 105.450 to 105.496, or chapter 130

and may recover on behalf of the state or political subdivision with which the

alleged violator is associated, damages in the amount of any unjust enrichment

obtained and costs and attorney's fees as ordered by the court.



7. The appropriate disciplinary authority to whom a report shall be sent

pursuant to subsection 2 or 3 of this section shall include, but not be

limited to, the following:



(1) In the case of a member of the general assembly, the ethics

committee 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 an appointive

office of the state, if the alleged violation is an impeachable offense, the

report shall be referred to the ethics committee of the house of

representatives;



(3) In the case of a person holding an elective office of a political

subdivision, the report shall be referred to the governing body of the

political subdivision;



(4) In the case of any officer or employee of the state or of a

political subdivision, the report shall be referred to the person who has

immediate supervisory authority over the employment by the state or by the

political subdivision of the subject of the report;



(5) In the case of a judge of a court of law, the report shall be

referred to the commission on retirement, removal and discipline, or if the

inquiry involves an employee of the judiciary to the applicable presiding

judge;



(6) In the case of a person holding an appointive office of the state,

if the alleged violation is not an impeachable offense, the report shall be

referred to the governor;



(7) In the case of a statewide elected official, the report shall be

referred to the attorney general;



(8) In a case involving the attorney general, the report shall be

referred to the prosecuting attorney of Cole County.



8. The special investigator having a complaint referred to the special

investigator by the commission shall have the following powers:



(1) To request and shall be given access to information in the

possession of any person or agency which the special investigator deems

necessary 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 for

confidentiality;



(3) To administer oaths and affirmations;



(4) Upon refusal by any person to comply with a request for information

relevant to an investigation, an investigator may issue a subpoena for any

person to appear and give testimony, or for a subpoena duces tecum to produce

documentary or other evidence which the investigator deems relevant to a

matter under the investigator's inquiry. The subpoenas and subpoenas duces

tecum may be enforced by applying to a judge of the circuit court of Cole

County or any county where the person or entity that has been subpoenaed

resides or may be found, for an order to show cause why the subpoena or

subpoena duces tecum should not be enforced. The order and a copy of the

application therefor shall be served in the same manner as a summons in a

civil action, and if, after hearing, the court determines that the subpoena or

subpoena duces tecum should be sustained and enforced, the court shall enforce

the subpoena or subpoena duces tecum in the same manner as if it had been

issued by the court in a civil action; and



(5) To request from the commission such investigative, clerical or other

staff assistance or advancement of other expenses which are necessary and

convenient for the proper completion of an investigation. Within the limits

of appropriations to the commission, the commission may provide such

assistance, whether by contract to obtain such assistance or from staff

employed by the commission, or may advance such expenses.



9. (1) Any retired judge may request in writing to have the judge's

name removed from the list of special investigators subject to appointment by

the commission or may request to disqualify himself or herself from any

investigation. Such request shall include the reasons for seeking removal;



(2) By vote of four members of the commission, the commission may

disqualify a judge from a particular investigation or may permanently remove

the name of any retired judge from the list of special investigators subject

to appointment by the commission.



10. Any person who is the subject of any investigation pursuant to this

section shall be entitled to be represented by counsel at any proceeding

before the special investigator or the commission.



11. The provisions of sections 105.957, 105.959 and 105.961 are in

addition to other provisions of law under which any remedy or right of appeal

or objection is provided for any person, or any procedure provided for inquiry

or investigation concerning any matter. The provisions of this section shall

not be construed to limit or affect any other remedy or right of appeal or

objection.



12. No person shall be required to make or file a complaint to the

commission as a prerequisite for exhausting the person's administrative

remedies before pursuing any civil cause of action allowed by law.



13. If, in the opinion of the commission, the complaining party was

motivated by malice or reason contrary to the spirit of any law on which such

complaint was based, in filing the complaint without just cause, this finding

shall be reported to appropriate law enforcement authorities. Any person 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 action brought

by the commission shall be awarded those reasonable fees and expenses incurred

by that party in the formal judicial action, unless the court finds that the

position of the commission was substantially justified or that special

circumstances make such an award unjust.



15. The special investigator and members and staff of the commission

shall maintain confidentiality with respect to all matters concerning a

complaint until and if a report is filed with the commission, with the

exception of communications with any person which are necessary to the

investigation. The report filed with the commission resulting from a

complaint acted upon under the provisions of this section shall not contain

the name of the complainant or other person providing information to the

investigator, if so requested in writing by the complainant or such other

person. Any person who violates the confidentiality requirements imposed by

this section or subsection 17 of section 105.955 required to be confidential

is guilty of a class A misdemeanor and shall be subject to removal from or

termination of employment by the commission.



16. Any judge of the court of appeals or circuit court who ceases to

hold such office by reason of the judge's retirement and who serves as a

special investigator pursuant to this section shall receive annual

compensation, salary or retirement for such services at the rates of

compensation provided for senior judges by subsections 1, 2 and 4 of section

476.682. Such retired judges shall by the tenth day of each month following

any month in which the judge provided services pursuant to this section

certify to the commission and to the state courts administrator the amount of

time engaged in such services by hour or fraction thereof, the dates thereof,

and the expenses incurred and allowable pursuant to this section. The

commission shall then issue a warrant to the state treasurer for the payment

of the salary and expenses to the extent, and within limitations, provided for

in this section. The state treasurer upon receipt of such warrant shall pay

the same out of any appropriations made for this purpose on the last day of

the month during which the warrant was received by the state treasurer.



(L. 1991 S.B. 262 § 4, A.L. 1997 S.B. 16)



*Revisor's Note: This section is reprinted in accordance with Section

3.066. Senate Bill 844 in 2010 amended this section. Senate

Bill 844 was declared unconstitutional as a violation of the

original purpose requirement of Art. III, Sec. 21, of the

Missouri Constitution (see annotation below), rendering the

repeal and reenactment of this section ineffective.



(2012) Senate Bill 844 provision declared unconstitutional as a

violation of the original purpose requirement of Art. III, Sec.

21, Constitution of Missouri. Legends Bank v. State, 361 S.W.3d

383 (Mo. banc).







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