The proposed rule amendments are intended to streamline the existing rules of the Commission by deleting unnecessary language and conforming existing language where necessary.

 

DEPARTMENT OF LEGAL AFFAIRS
Florida Elections Commission

RULE NOS.:RULE TITLES:
2B-1.0025Complaints
2B-1.0027Investigation of Complaints; Staff Recommendations; and Probable Cause Determinations
2B-1.005Appeal of Fines Imposed by Filing Officers
2B-1.0055Late-filed Reports; Unusual Circumstances
PURPOSE AND EFFECT: The proposed rule amendments are intended to streamline the existing rules of the Commission by deleting unnecessary language and conforming existing language where necessary.
SUMMARY: The proposed rule amendments delete language which is unnecessary and clarifies existing language with regard to the disciplinary process and various disciplinary actions.
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: During discussion of the economic impact of this rule at its Commission meeting, the Commission, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time.
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: 106.26(1), 104.271(2) FS.
LAW IMPLEMENTED: 106.04(8), 106.07(8), 105.071, 106.25, 104.271(2), 106.26 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Amy Toman, Executive Director, Florida Elections Commission, Department of Legal Affairs, PL-01, The Capitol, Tallahassee, Florida 32399-1050

THE FULL TEXT OF THE PROPOSED RULE IS:

2B-1.0025 Complaints.

(1) Any complaint alleging violations of the Florida Election Code over which the Florida Elections Commission has jurisdiction may shall be filed with the Commission. A complaint form, Confidential Complaint, FEC 001, effective 4-24-05, which is hereby adopted and incorporated by reference may be obtained by calling the Commission office during normal business hours or by writing to the Commission. The complaint form may also be obtained from the commission’s website www.fec.state.fl.us

(2) Within five working days of receipt of a sworn complaint, the executive director shall send a copy of the complaint to the person against whom the complaint was made, the respondent.

(3) Upon receipt of a complaint, the executive director shall determine whether the complaint is legally sufficient., unless the executive director determines that the identity of the parties or witnesses or other factual or legal basis would prevent his or her determination due to an appearance of impropriety or a conflict as defined by Section 112.312(8), F.S. Upon the executive director’s determination that he or she has a conflict or that action on the complaint would present an appearance of impropriety, the executive director shall refer the complaint to the Commission for a determination of legal sufficiency.

(4) A complaint is legally sufficient if it meets the following criteria:

(a) The complaint alleges a violation of Chapter 104 or 106 or Section 98.122 or 105.071, F.S.;

(b) The complaint was made under oath in the presence of a notary public or other person authorized by law to administer oaths;

(c) The complaint contains the original signature of the complainant;

(d) The complaint contains specific facts upon which the complainant bases the allegation of a violation of law; and

(e) The complaint alleges a violation that occurred within two years of the date the complaint is filed with the Commission.

(f) The complaint is based on personal information or information other than hearsay.

(5) A complaint is not required to list every section of the Election Code that a respondent could have violated or to specify facts that support every element of the violations alleged.

(3)(6) If a person files a second complaint against the same person, the executive director shall determine that the second complaint is legally insufficient, if the second complaint alleges violations that are based upon the same facts or allegations that were raised or could have been raised in the first complaint.

(4)(7) In determining the legal sufficiency of a complaint, the executive director shall consider any document referred to in the complaint and any material Commission staff has obtained in prior Commission investigations. In determining the legal sufficiency of a complaint alleging a violation of the campaign finance laws, the executive director shall also consider documents on file with the filing officer.

(5)(8) When the executive director determines that a complaint is legally insufficient, the complainant and the respondent shall be notified. The notice shall include the reason the complaint is legally insufficient and notify the complainant that he has 14 days to correct the stated ground of insufficiency. If the complainant does not respond within 14 days, the executive director shall close the case. If the complainant responds but does not provide information that corrects the stated ground of insufficiency, the case shall be closed. A corrected complaint must also be sworn as required by subsection 106.25(2), F.S. the complainant and the respondent shall be notified of complainant’s right to seek the Commission’s review of the executive director’s finding that the complaint is legally insufficient.

(9) A complainant seeking the Commission’s review of the executive director’s finding that the complaint is legally insufficient, shall file a written request for review with the Commission clerk stating with specificity the reasons the complainant believes that the complaint is legally sufficient within 21 days of receipt of the notice. If a written request for review is not filed with the Commission clerk within 21 days of receipt of the notice, the executive director shall close the case.

(10) If the Commission finds the complaint legally sufficient, it shall direct the executive director to further investigate the complaint. If the Commission finds the complaint legally insufficient, it shall dismiss the complaint.

Rulemaking Authority 106.26(1) FS. Law Implemented 105.071, 106.25 FS. History–New 2-17-91, Amended 11-14-93, 3-19-96, 8-19-96, Formerly 1D-1.0025, Amended 1-11-99, 1-2-02, 2-15-04, 4-24-05, .

 

2B-1.0027 Investigation of Complaints; Staff Recommendations; and Probable Cause Determinations Subpoenas and Orders of Probable Cause.

(1) If a complaint is legally sufficient, it shall be investigated by Commission staff. The staff shall investigate all violations specifically alleged in the sworn complaint.

(2) A subpoena necessary to gather evidence during the investigation of a legally sufficient complaint shall be executed and issued by the executive director. The subpoena shall contain a notice that the person to whom the subpoena is directed may file a motion to quash or limit the subpoena with the Commission clerk and state the ground relied upon. At the request of any party, the Commission clerk shall schedule a motion hearing before a Commissioner designated by the Chairman to hear such non-dispositive matters. The filing of such a motion shall toll the time for responding to the subpoena. If the motion to quash is denied, the subpoena shall be complied with within five days of an oral or written ruling on the motion, whichever occurs first.

(3) The individual conducting the investigation shall prepare a report of the results of the investigation, including relevant documents or other evidence gathered during the investigation.

(4) The staff of the Commission shall make a recommendation of whether there is probable cause or no probable cause in each case.

(5) All staff recommendations shall be reviewed by the executive director.

(6) The executive director shall ensure that legally sufficient complaints alleging a violation of Section 104.271(2), F.S., shall be given priority in the allocation of investigative and legal resources. Any request for hearing before the Commission shall be scheduled for its first available meeting.

(7) The respondent, the complainant, and their respective counsels shall be permitted to attend the hearing at which the Commission determines probable cause. Notice of the hearing shall be sent to the respondent and the complainant at least 14 days before the date of the hearing. The respondent and his or her counsel shall be permitted to make a brief oral statement in the nature of oral argument to the Commission before the Commission determines probable cause.

(8) The Commission’s determination of probable cause shall be based upon the complaint, report of investigation, staff recommendations, any written statements submitted by the respondent, and any oral statements made at the probable cause hearing. After the hearing, the Commission shall:

(a) Issue an order finding probable cause to believe that specific sections of the law have been violated;

(b) Issue an order finding no probable cause to believe a violation has occurred; or

(c) Return the matter to Commission staff for additional investigation.

(9) The Commission clerk shall send a copy of the Commissioner’s order determining probable cause or no probable cause to the complainant and the respondent.

(10) An order of no probable cause shall constitute final agency action.

(2) (11) Any order of probable cause entered by the Commission shall advise the respondent of the right to a hearing pursuant to Chapter 120, F.S., and the provisions of Rule 2B-1.004, F.A.C., which allow the Commission to designate a Commissioner or Commissioners to hold hearings involving disputed issues of material fact and hearings not involving disputed issues of material fact. Any order of probable cause shall further advise the respondent of the right to stipulate to the facts and proceed to a hearing before the full Commission to determine wilfullness only.

Rulemaking Authority 104.271(2), 106.26(1) FS. Law Implemented 104.271(2), 106.25, 106.26 FS. History–New 1-11-99, Amended 4-24-05,________.

 

2B-1.005 Appeal of Fines Imposed by Filing Officers.

(1) To appeal a fine imposed pursuant to Section 106.04(8) or 106.07(8), F.S., the candidate, chairman of a political committee, or treasurer of a committee of continuous existence party against whom the fine is levied shall file a notice of appeal. The notice of appeal shall be filed with the Commission clerk, and a copy filed with the filing officer, within 20 days of the appealing party’s receipt of notice that a fine is being imposed. The notice of appeal shall contain:

(a) The name, address and telephone number of the appealing party;

(b) A copy of the notice of imposition of fine issued by the filing officer; and

(c) A request for hearing if a personal appearance before the Commission is desired. If no hearing request is made, the appeal shall be decided solely on the documents submitted by the appealing party and Commission staff.

(2) Failure to timely file a notice of appeal shall result in waiver of the right to appeal the fine and a final order upholding the fine shall be entered by the Chairman of the Commission without further notice.

(3) Upon receipt of a timely notice of appeal, the Commission staff shall notify the appealing party that the appeal has been accepted. The appealing party shall have 20 days from acceptance of the appeal to submit any documents supporting the appeal. Any subsequent supplemental documents shall be filed no later than five business days before the hearing.

(3)(4) The Commission shall uphold the fine imposed by the filing officer unless the appealing party demonstrates presents credible evidence that the report was timely filed or credible evidence that there were unusual or other circumstances beyond the control of the candidate or committee caused the report to be filed late. Credible evidence is evidence that is from a credible source and is so natural, reasonable and probable as to make it easy to believe. The Commission shall give greater weight to a written statement that is certified to have been made under oath in the presence of a notary or other person authorized by law to administer oaths.

(5) If a hearing has been requested, the Commission clerk shall notify the appealing party of the date and location of the hearing. Convenience of location of the hearing shall not be a basis for continuing the hearing. The Commission is not required to provide notice of its consideration of the appeal if the appealing party did not request a hearing.

(6) Unless good cause is shown, the Commission will not consider at the hearing any written document unless the party offering the document has filed it with the Commission clerk at least ten days before the hearing.

Rulemaking Authority 106.26(1) FS. Ch. 97-13, Sec. 52, Laws of Florida. Law Implemented 106.04(8), 106.07(8) FS. History–New 9-14-86, Amended 10-19-86, Formerly 1D-1.005, Amended 1-11-99, 4-24-05,_______.

 

2B-1.0055 Late-filed Reports; Unusual Circumstances.

(1) Unusual circumstances mean uncommon, rare or sudden events over which the actor has no control and which directly result in the failure to act according to the filing requirements. Unusual circumstances must occur within a time period that would clearly prevent the person legally responsible for filing the report from doing so in a timely manner. Unusual circumstances shall include, but are not limited to, the following circumstances:

(a) Unusual circumstances shall not include the failure of the United States Postal Service or other mail delivery service to postmark an envelope, legibly postmark an envelope, or timely deliver mail.

(b) Unusual circumstances shall not include the failure of the sender to affix sufficient postage to a report that is being mailed.

(2) The following events shall constitute unusual circumstances so long as the events clearly interfered with filing the report.

(a) Natural disaster or other emergency that prevented timely filing. Evidence submitted shall include copies of newspaper reports or other documents from an independent and reliable source that documents the nature, date, and location of the natural disaster or emergency.

(b) Death of the candidate or campaign treasurer or an immediate family member of the candidate or campaign treasurer. Evidence submitted shall include a copy of the death certificate, newspaper obituary, or funeral program or notice.

(c) Serious illness, disability or non-elective surgery of the candidate or campaign treasurer. Evidence submitted shall include a physician’s certification on professional letterhead stationery that includes the dates of the illness, disability, or surgery; a statement regarding the period of time that the patient was incapacitated; and a statement that surgery, if any, was not elective. The period of incapacitation may also be shown by copies of hospital records reflecting the dates of hospitalization.

(d) Serious illness, disability or non-elective surgery of the candidate’s or campaign treasurer’s immediate family member. Evidence submitted shall include evidence of the candidate or treasurer’s relationship to the family member, the location of the family member, and the reason the candidate or campaign treasurer’s presence was required. Evidence submitted shall also include a physician’s certification on professional letterhead stationery that includes the dates of the illness, disability or surgery; a statement regarding the period of time that the patient was incapacitated; a statement that surgery, if any, was not elective; and a statement that the patient required the care of a family member.

(e) Computer or equipment failure caused by events that could not have been anticipated and that made timely filing of the report impossible. Power outages or program failure does not constitute unusual circumstances unless it is established that reasonable precautions to assure the safety of the equipment or the ability of the program to perform as anticipated were taken before the events causing failure of the equipment or program.

(f) The abrupt and unexpected loss of the campaign treasurer, over which the appealing party had no control. The loss of the campaign treasurer shall not constitute unusual circumstances if the appealing party failed to monitor the campaign treasurer’s performance before his or her departure or if the appealing party failed to assure prompt preparation of the report after the treasurer’s departure.

(g) Failure of the filing officer to e-mail, telephone, or mail a letter to the candidate, chairman of a political committee, or treasurer of a committee of continuous existence that a report is late no later than seven days after the report was due shall constitute unusual circumstances if the appealing party establishes that lack of notice clearly interfered with the timely filing of the report. The fine imposed by the filing officer shall be reduced to the amount that would have been imposed had the report been filed 13 days late.

(2) Unusual circumstances shall not include:

(a) Failure of the United States Postal Service or other mail delivery service to postmark an envelope, legibly postmark an envelope, or timely deliver mail.

(b) Failure of the sender to affix sufficient postage to a report that is being mailed.

Rulemaking Authority 106.26(1) FS., Ch. 97-13, Sec. 52, Laws of Florida. Law Implemented 106.04(8), 106.07(8) FS. History–New 1-11-99, Amended 4-24-05,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Florida Elections Commission
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Florida Elections Commission
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 19, 2013
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: March 30, 2012