34-5.006. Probable Cause Determination

(1) Notification of Completion of Investigation. When the investigator’s report is completed, the Executive Director shall notify the respondent that the report is completed and shall send to the respondent a copy of the investigator’s report and a copy of the Executive Director’s order to investigate. The investigatory file and main complaint file shall be open for inspection by the respondent and the respondent’s counsel at that time, and copies may be obtained at no more than cost.

(2) Time to Review Report. The respondent shall be given not less than 14 days from the date of mailing of the investigator’s report, within which time to file with the Commission a written response to the investigator’s report. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the Commission so long as reasonable notice under the circumstances is given.

(3) Advocate’s Recommendation. The Advocate shall review the investigator’s report and shall make a written recommendation to the Commission for the disposition of the complaint, including a statement of what charges shall be at issue at the probable cause hearing. A copy of the recommendation shall be furnished to the respondent. The respondent shall be given not less than 7 days from the date of mailing of the Advocate’s recommendation, within which time to file with the Commission a written response to the recommendation. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the Commission, so long as the recommendation is furnished to the respondent within a reasonable period of time under the circumstances.

(4) Notice of Probable Cause Hearing and Right to Attend. The respondent, the complainant(s), their counsel, and the Advocate shall be permitted to attend the hearing at which the probable cause determination is made. Notice of the probable cause hearing shall be sent to the respondent, complainant(s), and Advocate at least 14 days before the hearing. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the Commission, so long as the notice is furnished within a reasonable period of time under the circumstances.

(5) Scope of Probable Cause Determination. The probable cause determination is the conclusion of the preliminary investigation. The respondent and the Advocate shall be permitted to make brief oral statements in the nature of oral argument to the Commission, based on the investigator’s report, before the probable cause determination. The Commission’s determination shall be based upon the investigator’s report, the Advocate’s recommendation, the complaint, and staff recommendations, as well as any written statements submitted by the respondent and any oral statements made at the hearing. No testimony or other evidence will be accepted at the hearing.

(6) Probable Cause Determination. At its meeting to determine probable cause, the Commission may continue its determination to allow further investigation; may order the issuance of a public report of its investigation if it finds no probable cause to believe that a violation of the Code of Ethics or other breach of public trust has occurred, concluding the matter before it; may order a final, public hearing of the complaint if it finds probable cause to believe that a violation of the Code of Ethics or other breach of public trust has occurred; or may take such other action as it deems necessary to resolve the complaint, consistent with due process of law. In making its determination, the Commission may consider:

(a) The sufficiency of the evidence against the respondent, as contained in the investigator’s report;

(b) The admissions and other stipulations of the respondent, if any;

(c) The nature and circumstances of the respondent’s actions;

(d) The expense of further proceedings; and

(e) Such other factors as it deems material to its decision. If the Commission orders a public hearing of the complaint, the Commission shall determine what charges shall be at issue for the hearing.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8(f), (h), Fla. Const., 112.322, 112.324 FS. History–New 4-7-77, Amended 9-21-77, 7-13-80, 2-21-83, 11-14-85, Formerly 34-5.06, Amended 2-19-91, 7-7-91, 7-5-92, 7-28-98, 9-4-12.