11B-27.004. Probable Cause Determination

At the conclusion of the preliminary investigation and when the reports and documents are received as directed by sections 943.139 and 943.1395, F.S., a determination of probable cause shall be made before the Commission initiates proceedings to take disciplinary action against the certification of an officer.

(1) For the purpose of probable cause determinations, the chairperson of the Commission or designee shall appoint Probable Cause Panels of three Commission members and one alternate member, to hold Probable Cause Determination Hearings for terms specified in their appointment. The Commission Chairperson or designee shall appoint a chairperson for each panel, and the panels shall meet as necessary.

(2) A Probable Cause Determination Hearing is the conclusion of the preliminary investigation, and is not a hearing pursuant to sections 120.569 and 120.57, F.S.

(3) Each Probable Cause Determination Hearing shall be noticed in the Florida Administrative Register pursuant to section 120.525, F.S. The respondent shall be mailed a prior notice of the Probable Cause Determination Hearing and a subsequent notification of whether or not probable cause was determined by the panel.

(4) After considering all evidence, a majority vote of the Probable Cause Panel shall determine whether or not probable cause exists to file an administrative complaint pursuant to section 120.60(5), F.S., charging a violation of chapter 943, F.S., or rule chapter 11B-27, F.A.C. If the case is presented for imposition of a penalty, the Panel is authorized to make a penalty recommendation to the Commission, or to direct Commission staff to offer a settlement agreement in the case.

(5) The panel is authorized to issue a Letter of Guidance to the officer when the panel determines that it is not practical to initiate proceedings against an officer’s certification. A copy of the Letter of Guidance shall be retained in the officer’s file within the Criminal Justice Professionalism Program, Bureau of Standards.

(6) The Probable Cause Panel is authorized to offer the respondent the opportunity to enter into an Intervention Program if there would otherwise be a finding of probable cause but the Panel finds that there are significant mitigating circumstances or that the violation is not egregious. The terms and conditions of the Probable Cause Panel’s Intervention Programs may include the following:

(a) Successful completion of training or retraining deemed appropriate by the panel.

(b) Participation in psychological, occupational, or substance abuse counseling.

(c) Furnishing blood, breath, or urine samples, and consent to the release of analysis results of such random or scheduled tests.

(d) Payment of restitution for damages or loss created by the officer’s misconduct.

(e) Any other such rehabilitative terms and conditions.

(f) As a standard condition of the Intervention Program, the respondent shall refrain from any violation of sections 943.13(4), (7), F.S., and subsections 11B-27.0011(2)-(4), F.A.C. For the Intervention Program to be a viable alternative in consideration of probable cause, the respondent shall agree to all terms and conditions recommended by the panel. The respondent shall be responsible for successfully completing the terms and conditions of the Intervention Program within a specified period. Once the respondent has reported the successful completion of the terms and conditions to Commission staff, the matter shall be presented to a Probable Cause Panel. The panel shall then issue a Letter of Guidance in lieu of a finding of probable cause, pursuant with subsection (5) of this rule section. Failure of the respondent to either agree to or successfully complete the terms and conditions of the Intervention Program within the specified time frame, shall result in the matter being returned to the Probable Cause Panel for a finding of probable cause and the issuance of an Administrative Complaint.

(7) When Commission staff determines that the respondent has been retained by the employing agency, Commission staff shall issue a Letter of Acknowledgment of agency action in these cases, provided the employing agency shall have taken significant agency action as defined in subsections 11B-27.005(1)-(2), F.A.C.

(8) Commission staff:

(a) Shall not issue a Letter of Acknowledgement to a respondent who has been issued a Letter of Acknowledgement within three years prior to the date of receipt of the information described in paragraph 11B-27.003(2)(b), F.A.C.

(b) Shall not issue a Letter of Acknowledgement to a respondent who has been issued a Letter of Guidance within five years prior to the date of receipt of the information described in paragraph 11B-27.003(2)(b), F.A.C.

(c) Shall not issue a Letter of Acknowledgement to a respondent who has been disciplined by the Commission within eight years prior to the date of receipt of the information described in paragraph 11B-27.003(2)(b), F.A.C.

(d) Shall not issue a Letter of Achnowledgement to a respondent if the penalty guidelines of subsection 11B-27.005(5), F.A.C., specify prospective suspension to revocation as the guideline penalty for the offense.

(9) In cases where the respondent has been terminated or disciplined and is seeking review of that termination or discipline through the administrative or judicial process, the respondent and employing agency shall notify Commission staff of such review. Pending final resolution, Commission staff shall hold such cases in abeyance.

(10)(a) If administrative or judicial review results in a final disposition of the respondent’s termination or discipline, the case shall no longer be held in abeyance and Commission staff shall review the case for the issuance of a Letter of Acknowledgment, if applicable, or for presentation to the Commission for Commission action.

(b) In cases in which administrative or judicial review results in a final reversal of discipline imposed by the employing agency relating to the alleged misconduct that is subject to review by the Commission, or criminal proceedings that result in the respondent’s acquittal on all charges subject to review by the Commission after a trial, Commission staff shall take no further action, provided that Commission staff may present the case to a Probable Cause Panel upon Commission staff’s specific showing that the findings of fact in the collateral proceedings were based upon inclusion or exclusion of evidence, or that the testimony was a departure from the essential requirements of law, the findings of fact in the collateral proceedings were not supported by competent and substantial evidence, or were clearly contrary to the evidence presented.

(11)(a) In cases in which the facts presented to Commission staff are inconclusive, lack reliability, are insufficient to permit a reasonable determination of what occurred, or fail to demonstrate that the alleged misconduct meets the statutory criteria for Commission action, Commission staff shall “no cause” the case. Commission staff shall reopen a case that has been “no caused” if new evidence or witnesses become available to Commission staff. However, Commission staff shall “no cause” a violation of paragraph 11B-27.0011(4)(b) or (c), F.A.C., if the officer is alleged to have committed the violation more than eight years prior to the case being presented to a Probable Cause Determination Hearing.

(b) Commision staff’s characterization of misconduct based upon the facts as presented shall control processing of misconduct cases under the rules of the Commission.

(12) When the Probable Cause Panel has insufficient information to determine the existence of probable cause, but in good faith believes that Commission staff can obtain the information necessary to reach a decision, the panel shall enter a finding of “Insufficient Information.” The case shall be continued until reasonable efforts by Commission staff have been concluded to obtain the additional information requested by the panel, at which time the case shall be scheduled before a Probable Cause Panel for further review.

Rulemaking Authority 943.03(4), 943.12(1), 943.1395 FS. Law Implemented 943.1395 FS. History–New 12-13-92, Amended 1-19-94, 11-5-95, 1-2-97, 7-7-99, 8-22-00, 11-5-02, 4-11-04, 11-30-04, 6-9-08, 6-3-10, 5-29-14, 9-4-16, 7-9-19.