Section 113.324(1)(b), F.S., authorizes the Commission on Ethics to accept written referrals of possible violations of Article II, Section 8, Florida Constitution, or the Code of Ethics for Public Officers and Employees from the Governor, the ...

 

COMMISSION ON ETHICS

RULE NOS.:RULE TITLES:

34-17.001Scope and Applicability of Chapter

34-17.002Time Periods

34-17.003Filing and Serving Documents; Facsimile Transmissions

34-17.004Staff Procedures upon Receipt of a Referral

34-17.005Review for Sufficiency of Allegations of Breach of Public Trust and Ordering Preliminary Investigation

34-17.006Delegation of Authority

34-17.007Subpoenas During Preliminary Investigation

34-17.008Investigations

34-17.009Counsel

34-17.010Probable Cause Determination

34-17.011Notification of Manner of Disposition

34-17.012Confidentiality

34-17.013Public Hearings

34-17.014Parties to Public Hearings

34-17.015Disqualification of Commission Members

34-17.016Ex Parte Communications

34-17.017Stipulations, Settlements and Consent Orders

34-17.018Action on Recommended Public Report or Recommended Order by the Full Commission

34-17.019Transmittal of Public Report

PURPOSE AND EFFECT: Section 113.324(1)(b), F.S., authorizes the Commission on Ethics to accept written referrals of possible violations of Article II, Section 8, Florida Constitution, or the Code of Ethics for Public Officers and Employees from the Governor, the Florida Department of Law Enforcement, a state attorney, or a United States attorney. This rule chapter contains the procedures for the receipt, consideration and disposition of such referrals.

SUMMARY: The procedures for receipt, consideration and disposition of referrals.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: based on past experiences with complaint procedures and rules of this nature, the adverse impact of regulatory costs, if any, do not exceed nor would be expected to exceed any one of the economic analysis criteria set forth in Section 120.541(2)(a), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 112.322(9) FS.

LAW IMPLEMENTED: Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, Chapter 2013-38, LOF, 112.322, 112.324 FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: October 25, 2013, 8:30 a.m.

PLACE: Senate Office Building, Room 37S, 404 S. Monroe, Tallahassee, FL

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 3 days before the workshop/meeting by contacting: Millie Fulford, Executive Secretary, Commission on Ethics, [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Betsy Daley, Senior Attorney, Commission on Ethics, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

34-17.001 Scope and Applicability of Chapter.

Section 112.324(1)(b), Florida Statutes, authorizes the Commission to accept written referrals of possible violations of Article II, Section 8, Florida Constitution, or Chapter 112, Part III, Florida Statutes, from the Governor, the Florida Department of Law Enforcement, a state attorney, or a United States Attorney. The rules in this Chapter 34-17, F.A.C., shall govern the receipt and disposition of all referrals reported to the Commission under this statute.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8(f), Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.002 Time Periods.

In computing any period of time prescribed or allowed by these rules, by order of the Commission, the Chair, or another presiding officer, or by any applicable statute, the time period shall be calculated in accordance with Rule 28-106.103, F.A.C.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.003 Filing and Serving Documents; Facsimile Transmissions.

Pleadings and other documents under the rules of this Chapter shall be filed and served in accordance with Rule 28-106.104, F.A.C., whether in paper or electronic form, and shall contain the information required by that Rule.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.004 Staff Procedures upon Receipt of a Referral.

(1) Upon receipt of a referral pursuant to Section 112.324(1)(b), Florida Statutes, staff shall assign a control number which shall be entered on the referral itself and on a colored folder in which the referral shall be filed so long as it remains confidential. Any documents related to the referral shall be entered in the referral file.

(2) Unless the referral is based upon personal information or information other than hearsay, any referral against a candidate in a general, special, or primary election that is received within the thirty (30) calendar days immediately preceding the date of that election, including Saturdays, Sundays, and holidays, will be returned by the Executive Director to the person submitting the referral, with an explanation of why the referral is being returned.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, Chapter 2013-38, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.005 Review for Sufficiency of Allegations of Breach of Public Trust and Order of Preliminary Investigation.

(1) The referral shall be reviewed by the Executive Director in order to make a recommendation of whether or not it is sufficient to allege a breach of public trust or a violation of Chapter 112, Part III, Florida Statutes. A referral shall not be insufficient because it is based upon evidence which would be hearsay evidence in a court of law. In order to make this determination, the Executive Director may request additional information from the referring agency and may obtain information from public records.

(2) If the Executive Director believes that the referral is sufficient to invoke the jurisdiction of the Commission, a written recommendation will be considered by the Commission in executive session. If at least six members of the Commission find that the referral is legally sufficient, an order to investigate the referral shall be entered and transmitted to the Respondent within five (5) days of the Commission's determination.

(3) If the Executive Director recommends that the referral is not legally sufficient to invoke the jurisdiction of the Commission and that it should not be investigated, the recommendation will be considered by the Commission in executive session. If a majority of the Commission accepts the Executive Director's recommendation that the referral is not legally sufficient, the referral shall be dismissed and the referring agency and the respondent will be notified of the dismissal. A summary for the reasons for dismissing the referral together with the referral itself and all documents related thereto shall become a public record and constitute a public report.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, Chapter 2013-38, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.006 Delegation of Authority.

The Commission hereby delegates to its investigators the authority to administer oaths and affirmations, delegates the authority to issue subpoenas to its chair and, in the absence or unavailability of the chair, to its vice chair, and authorizes its employees to serve any subpoena issued under the Commission's authority.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.007 Subpoenas During Preliminary Investigation.

When an investigation of a referral is ordered or at any time thereafter, upon recommendation of the Executive Director or upon motion of the Commission, the Commission Chair or other member authorized by the Commission may authorize the issuance of subpoenas or subpoenas duces tecum. Each subpoena shall be signed by the Chair or other member authorized by the Commission and shall state the person, documents, or other things to be subpoenaed. Each subpoena further shall name the person before whom the witness is to give testimony, and shall state in general terms the subject matter of the testimony to be elicited. If documents or other things are to be produced, the subpoena shall describe the same with as much specificity as reasonably practicable. The subpoena shall state clearly on its face that it is issued by the Commission on Ethics in accordance with its authority to investigate referrals of breaches of public trust. Such subpoenas shall be issued for investigative purposes only, and neither a representative from the referring agency, the respondent, nor their counsel shall be entitled to attend the investigative proceeding at which the witness is to give a sworn statement unless a representative from the referring agency or the respondent is the person subpoenaed.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.008 Investigations.

(1) Commencement of Investigations. Investigations shall be initiated only as provided above in Rule 34-17.005, F.A.C., provided that information from public records may be obtained by staff prior to the ordering of an investigation to aid in the just and efficient resolution of a referral.

(2) Investigators. Investigation shall be conducted by Commission staff, by personnel of the Department of Legal Affairs, or by any other person or agency so designated by the Commission.

(3) Scope of Investigation. Investigations shall be limited to the allegations of the referral.

(4) Investigator Contacts with Potential Witnesses. The investigator shall inform the person being interviewed of the confidential nature of the investigation and of the referral, unless the respondent has waived confidentiality.

(5) Investigator to be Impartial. An investigator shall be impartial and unbiased in the conduct of the preliminary investigation. An investigator shall collect all evidence materially related to the allegations of the referral, whether such evidence tends to prove or disprove the allegations. If the Commission determines that a public hearing shall be held, however, the investigator is responsible for assisting the Advocate in the proof of the allegations brought against the respondent. If an investigator feels that for any reason he or she cannot be impartial or unbiased during the preliminary investigation then such investigator shall so notify the Executive Director of the Ethics Commission and shall immediately discontinue working in the investigation. If the Commission feels that the investigator cannot be unbiased or impartial at any point of time during the preliminary investigation, the Commission shall terminate any further investigation by the investigator.

(6) Investigator's Report. Upon the completion of the preliminary investigation, the investigator shall prepare a report to the Commission. The report shall contain a narrative account of all pertinent information obtained through interviews of witnesses, documentary evidence, or other sources and shall include a discussion of any conflicts in the evidence. The report shall not contain any determination or speculation with respect to whether the evidence indicates a breach of public trust. The report shall make no recommendations.

(7) Investigatory File. The investigator shall prepare an investigatory file to be maintained in the office of the Commission on Ethics, which file shall contain:

(a) Copies of all documents obtained during the course of the investigation;

(b) Recordings of interviews with witnesses and, if no recording is made, a summary of the interview;

(c) A list of the names and addresses of all persons actually interviewed;

(d) Any other relevant documents; and

(e) The investigator's report to the Commission.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, Chapter 2013-38, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.009 Counsel.

(1) Respondent. Respondent may appear on his or her own behalf or may be represented by a lawyer or other qualified representative. All notices and communications to a respondent represented by a lawyer or other qualified representative shall be made through the respondent's lawyer or qualified representative.

(2) Advocate. The Advocate presenting the matter before the Commission shall be an Assistant Attorney General or another attorney designated by the Commission as Advocate. The Advocate represents the Commission in its prosecutorial function.

(3) Referring Agency. To the limited extent the referring agency is entitled to participate or observe Commission proceedings, the referring agency may be represented by legal counsel or other qualified representative. All notices and communications to a referring agency represented by a lawyer or qualified representative shall be made through referring agency's lawyer or qualified representative.

(4) Appearances. Appearances by counsel or other qualified representatives shall be governed by Rules 28-106.105 and 28-106.106, F.A.C. The qualifications of a representative shall be determined in accordance with Rule 28-106.106. Qualified representatives shall observe the standards of conduct specified in Rule 28-106.107, F.A.C.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.010 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. The investigatory file and main referral 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 referral, 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, a representative from the referring agency, 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, the referring agency, 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 referral, 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 formal hearing of the referral 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 referral, 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 referral, 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, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.011 Notification of Manner of Disposition.

Upon the Commission's ordering a public hearing of a referral or a public report, as provided in Rule 34-17.010, the Executive Director shall so notify the referring agency and the respondent in writing. The referring agency also shall be provided with a copy of the report of investigation and of the Advocate's written recommendation.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.012 Confidentiality.

(1) Except as otherwise provided in these rules, the referral and all staff and Commission activities, proceedings, and documents relating to the referral shall be confidential until either:

(a) Confidentiality is waived in writing by the respondent; or

(b) The Commission orders the referral dismissed, as provided in Rule 34-17.005; or

(c) The Commission orders a public report or a public hearing as provided in Rule 34-17.010. When confidentiality is waived, the Commission orders the referral dismissed, or the Commission orders a public report or a public hearing, all materials relating to the referral shall become public records available to the public as provided in Chapter 119, Florida Statutes, except to the extent the materials are otherwise exempted from disclosure under the public records law.

(2) For the purposes of this rule, the Commission shall be deemed to have ordered a dismissal of the referral, a public report, or a public hearing at the time the written order or document evidencing that action is filed with the Commission Clerk, rather than at the time the Commission has so voted.

(3) The confidentiality provided by this rule shall not prohibit the Commission or its staff from advising the respondent or the referring agency about the status of the referral proceeding.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, Chapter 2013-38, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.013 Public Hearings.

Public hearings may be conducted by the full Commission, by a single Commission member, or by the Division of Administrative Hearings, as directed by the Chair of the Commission after considering the Commission's workload. The Commission may refer the matter by letter to the Division of Administrative Hearings for the appointment of an administrative law judge. Public hearings held before the Commission or its members shall be governed by the Uniform Rules of the Administration Commission, Chapter 28-106, F.A.C. Proceedings before the Commission after the public hearing shall be governed by the Uniform Rules of the Administration Commission, Chapter 28-106, F.A.C., if one of the rules of that chapter is applicable, and, if not, by the rules of this chapter.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.014 Parties to Public Hearings.

The person accused of breach of public trust shall be the respondent. Respondent shall be the only party unless consolidation of referrals is granted. The Advocate shall be a full participant in the proceeding and shall present all the evidence relevant to the cause that was produced by the preliminary investigation and such additional evidence as may be obtained through discovery or further investigation.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.015 Disqualification of Commission Members.

(1) Commission members shall be disqualified from sitting as a member of the Commission at either the probable cause hearing or the final public hearing for bias, prejudice, or interest. Disqualification may be raised by a party, by the Advocate, or by any member, but not by the referring agency.

(2) Unless good cause is shown, all motions for disqualification shall be filed with the Commission at least 5 days prior to the hearing at which the member is expected to participate. The motion shall be accompanied by an affidavit stating the particular grounds.

(3) Unless denied as untimely, the motion shall be ruled on by the Commission member whose disqualification is sought; the ruling shall be based on the legal sufficiency of the motion and affidavit. If the motion and affidavit are found legally sufficient, the member shall disqualify himself or herself.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.016 Ex Parte Communications.

(1) A Commission member shall not initiate nor consider any ex parte communication relative to the merits of a pending referral proceeding by:

(a) A public employee or official engaged in prosecution or advocacy in connection with the matter;

(b) A party to the proceeding or any person who, directly or indirectly, would have a substantial interest in the proposed action of the Commission, or his or her authorized representative or counsel; or

(c) A referring agency or any other individual who has personal knowledge of the facts underlying the proceeding, or his or her authorized representative or counsel. Nothing in this subsection shall apply to advisory staff members who do not testify on behalf of the Commission in the proceeding or shall prohibit Commission members who are contacted by any of the above persons from referring them to Commission staff or the Commission Advocate.

(2) A Commission member who receives such an ex parte communication shall place on the record of the matter all written communications received, all written responses to such communications, and a memorandum stating the substance of all oral communications received and all oral responses made, and shall also advise all parties that such matters have been placed on the record. Any party, including the Advocate, desiring to rebut the ex parte communication shall be allowed to do so, if a request for the opportunity for rebuttal is made within 10 days after notice of the communication.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

34-17.017 Stipulations, Settlements, and Consent Orders.

Informal disposition of the referral may be made of any proceeding by stipulation, agreed settlement, or consent order between the Advocate and the Respondent, upon approval ofk the Commission in a public meeting, so long as a public report is made.

(1) The Advocate is not required to present or propose to the Commission a stipulation, settlement, or consent order offer from the Respondent unless the Advocate agrees to the terms of the offer.

(2) Commission staff shall send to the referring agency a copy of the proposed stipulation, settlement, or consent order, notify the referring agency of the meeting at which the Commission will consider the proposed stipulation or order, and advise the referring agency that any written response to the proposed stipulation or order submitted by the referring agency will be provided to the Commission for its consideration. If the referring agency files a written response, a copy of it will be provided to the Respondent and the Advocate by Commission staff.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.018 Action on Recommended Public Report or Recommended Order by the Full Commission.

(1) Where the hearing has been conducted by a single Commissioner or DOAH administrative law judge, the meeting of the full Commission to consider the recommended public report shall not be an evidentiary "hearing." No new evidence shall be taken.

(2) As the referring agency is not a party, the referring agency or its representative is not entitled to address the Commission either orally or in writing in response to the recommended order.

(3) In order to assist the Commission in evaluating any exceptions that may have been filed, Commission staff may provide a draft final order analyzing the exceptions. If one is drafted, copies shall be provided to the respondent and the Advocate prior to the final hearing.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

34-17.019 Transmittal of Public Report.

The public report shall be signed by the Chair, shall be transmitted by mail to the respondent and referring agency, and shall be made available to the public.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8, Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Betsy Daley, Senior Attorney, Commission on Ethics

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Virlindia Doss, Executive Director, Commission on Ethics

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 25, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 27, 2013