(a) Probable Cause. Under Sections 83115.5 and 83116, probable cause exists when the evidence sufficiently supports a reasonable belief or strong suspicion that the Act has been violated.

(b) Probable Cause Report. To commence probable cause proceedings pursuant to Sections 83115.5 and 83116, the Chief of Enforcement shall direct Enforcement Division staff to prepare a probable cause report that contains a written summary of the law and evidence that supports a finding of probable cause that each alleged violation of the Act has occurred, as well as a description of any exculpatory evidence indicating a violation alleged in the report did not occur. The probable cause report may include hearsay evidence, including declarations of investigators or others relating the statements of witnesses or concerning the examination of physical evidence.

(c) No probable cause hearing will take place until at least 21 calendar days after Enforcement Division staff provides the following, by service of process or registered or certified mail with return receipt requested, to each respondent:

(d) Response to Probable Cause Report; Request for Probable Cause Conference; Waiver.

(e) Rebuttal. Not later than 14 calendar days following the date the response was filed with the Commission Assistant, Enforcement Division staff may submit any evidence or argument in rebuttal to the response which shall be filed with the Commission Assistant by electronic mail at [email protected] who will provide a copy to all parties. These are the only briefings to be considered by the hearing officer when making the determination of probable cause.

(f) Probable Cause Conference. The conference shall be closed to the public unless a respondent requests, and all other respondents agree, to a public conference. If the conference is not public, then only the parties named in the probable cause report, their legal counsel or representative and Enforcement Division staff shall have the right to be present and participate. Any party may send a request to the Commission Assistant at least 7 days before the probable cause conference that the hearing officer allow witnesses to participate in the probable cause conference. The request shall identify each witness and summarize the subject of the witness's testimony, and be sent to all parties. The hearing officer, in making this determination, shall consider the relevancy of the witness' proposed testimony, whether the witness has a substantial interest in the proceedings, and whether fairness requires that the witness be allowed to participate. Representatives of any civil or criminal prosecutor with jurisdiction may attend the conference at the discretion of the hearing officer if they agree to respect the confidential nature of the proceedings. If the conference is not open to the public, then the conference may be conducted in whole or in part by telephone or videoconference. The Enforcement Division shall record the probable cause conference. The hearing officer may determine whether there is probable cause based solely on the probable cause report, any responses or rebuttals, evidence submitted, and any arguments presented at the probable cause conference by the parties. The hearing officer may, based on a showing of good cause, permit any party to submit additional evidence at or after the probable cause conference if the additional evidence is summarized at the probable cause conference. Only evidence that confirms or disproves a statement made at the probable cause conference may be submitted after the conference.

(g) Finding of Probable Cause. A finding of probable cause by the hearing officer does not constitute a finding that a violation occurred. The hearing officer shall not make a finding of probable cause if presented with clear and convincing evidence that, at least 21 working days prior to the alleged violation, the respondent requested written advice from the Commission staff pursuant to Section 83114(b), disclosed truthfully all the material facts, and committed the acts complained of in reliance on formal advice of Commission staff or because of Commission staff's failure to provide advice. If the hearing officer makes a finding of probable cause, then the Enforcement Division shall prepare an Accusation pursuant to Section 11503 and have it served upon the person or persons who are subjects of the probable cause finding. The hearing officer shall publicly announce the finding of probable cause. The announcement shall contain a summary of the allegations and a cautionary statement that the respondent is presumed to be innocent of any violation of the Act unless a violation is proved in a subsequent proceeding. The Chief of the Enforcement Division shall be responsible for the presentation of the case in support of the Accusation at an administrative hearing held pursuant to Section 83116.