The purpose of the proposed amendments clarifies the Commission staff's handling of complaints and also incorporates changes to the complaint process resulting from the enactment of Chapter 2013-36, LOF.

 

COMMISSION ON ETHICS

RULE NOS.:RULE TITLES:

34-5.001Staff Procedures Upon Receipt of a Complaint of Breach of Public Trust

34-5.002Review for Sufficiency of Allegations of Breach of Public Trust and Order of Preliminary Investigation

PURPOSE AND EFFECT: The purpose of the proposed amendments clarifies the Commission staff's handling of complaints and also incorporates changes to the complaint process resulting from the enactment of Chapter 2013-36, LOF.

SUMMARY: Complaints will be returned to complainants without any action being taken if they do not meet the technical requirements of the rule or if they allege a matter or name a person not within the jurisdiction of the Commission on Ethics. Complaints filed within 30 days of an election will be returned, and no action will be taken on complaints alleging a de minimis financial disclosure error or omission if the respondent files an amended disclosure form within 30 days of being notified of the complaint.

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: The proposed changes will likely result in increased mailing costs for the Commission, as more complaints could be returned to complainants. Any increases are expected to be absorbed in the agency's budget.

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), 120.53 FS.

LAW IMPLEMENTED: Art. II, Section 8(f), (h), Fla. Const., Chapter 2013-36, Sections 7, 9, and 17, LOF, 112.3144, 112.3145, 112.322, 112.324 FS.

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

DATE AND TIME: September 13, 2013, 8:30 a.m.

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

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Julia Cobb Costas, Assistant General Counsel, Commission on Ethics

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

34-5.001 Staff Procedures Upon Receipt of a Complaint of Breach of Public Trust.

(1) Safeguarding confidential materials. Upon receipt of a sworn complaint, staff shall stamp on the face thereof the date on which the complaint was received in the Commission office. Each complaint received shall be assigned a control number which shall be entered on the complaint itself and on a colored folder in which the complaint shall be filed so long as it remains confidential. Any document related to the complaint shall be entered into the complaint file.

(2) Technical and Clerical Review. Upon receipt of a complaint, the staff of the Commission shall review the complaint to insure that the proper complaint form has been used, that all the information required has been provided, that only one respondent has been named in each complaint form submitted, and that the complaint has been properly signed by the complainant under oath. One or more persons may sign a complaint under oath; however, when the complaint is to be filed under oath in a representative capacity in behalf of an incorporated association or group, the complaint shall include sufficient information to indicate the authority of the person signing the complaint to file such a complaint in behalf of the association or group. If the complaint lacks any of the foregoing, or is otherwise incomplete, or alleges a matter or names a person not within the jurisdiction of the Commission on Ethics, a copy of the complaint shall be returned to the complainant identifying the defect. The staff shall provide assistance or information to persons seeking to file a complaint, but shall not encourage, solicit or discourage the filing of a complaint. If the complaint is filed in behalf of an unincorporated group or association, the person(s) signing the complaint will be considered to be the complainant(s) rather than the group or association.

(3) Each complaint which is not returned to the complainant shall be assigned a control number which shall be entered on the complaint itself and on a colored folder in which the complaint shall be filed so long as it remains confidential. Any document related to the complaint shall be entered into the complaint file.

(4)(3) No change.

(5)(4) Any complaint against a candidate in a general, special, or primary election that is received within the thirty (30) five calendar days immediately preceding the date of that election, including Saturdays, Sundays, and holidays, will be returned by the Executive Director to the person filing the complaint, with an explanation of why the complaint is being returned.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Sec. 8(f), (h), Fla. Const., Chapter 2013-36, Section 17, LOF, 112.322, 112.324 FS. History–New 4-7-77, Amended 9-21-77, 11-9-77, 7-13-80, 11-26-80, 4-29-81, 2-21-83, Formerly 34-5.01, Amended 2-16-95,_________.

 

34-5.002 Review for Sufficiency of Allegations of Breach of Public Trust and Order of Preliminary Investigation; Review of Allegations of Failure to Properly Complete Financial Disclosure Forms.

(1) After a the complaint has been reviewed and found to be in proper form, the complaint shall be reviewed by the Executive Director in order to determine whether the Commission has jurisdiction over the complaint is legally sufficient to allege; that is, whether the complaint is one concerning a breach of public trust. Complaints need not be as precise as would be required by the rules of civil procedure in a court of law and shall be deemed sufficient if the complainant under oath upon knowledge or belief alleges matters which, if true, may constitute a breach of public trust. A complaint 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 complainant and may obtain information from public records.

(2) If the Executive Director finds that the complaint is legally sufficient to invoke the jurisdiction of the Commission, the Executive Director shall order an investigation of the complaint.

(3) If the Executive Director finds that the complaint is not legally sufficient to invoke the jurisdiction of the Commission, the complaint shall be brought before the Commission in executive session with the recommendations of the Executive Director. The Commission may find the complaint to be sufficient and order an investigation; may find the complaint to be insufficient, dismiss it, and notify the complainant that no investigation will be made; or may take such other action as may be appropriate. In any case where a complaint is found legally insufficient and dismissed, a summary of the reasons for dismissing the complaint together with the complaint itself and all documents related thereto shall become a public record and constitute a public report.

(4) Review of complaints alleging violation of Article II, Section 8(a) or (i), Florida Constitution, or Sections 112.3144 or 112.3145, Florida Statutes, due to errors or omissions on an annual CE Form 6 – Full and Public Disclosure of Financial Interests, or CE Form 1 – Statement of Financial Interests.

(a) Effective May 1, 2013, the Commission shall treat an amended annual CE Form 6 – Full and Public Disclosure of Financial Interests, or CE Form 1 – Statement of Financial Interests, filed prior to September 1 of the year in which the disclosure is or was due as the original filing, regardless of whether a complaint has been filed.

(b) If a complaint filed after May 1, 2013, alleges an error or omission on an annual CE Form 6 – Full and Public Disclosure of Financial Interests, or CE Form 1 – Statement of Financial Interests, and is filed after August 25 of the year in which the annual disclosure is or was due, the Executive Director shall determine whether the complaint contains any allegations other than allegations of an immaterial, inconsequential, or de minimis error or omission on the disclosure form. If the complaint contains no such allegations, the staff shall take no action on the complaint other than to notify the respondent of the complaint. If the respondent files an amended disclosure correcting the error or omission with the Commission within 30 days of the date the notice is mailed, no further action shall be taken. If the respondent does not file an amended disclosure correcting the error or omission with the Commission within 30 days of the date the notice is mailed, the procedures in subsections (1)-(3), above, shall be followed.

Rulemaking Authority 112.322(9), 120.53 FS. Law Implemented Art. II, Section 8(f), (h), Fla. Const., Chapter 2013-36, Sections 7 and 9, 112.3144, 112.3145, 112.322, 112.324 FS. History–New 4-7-77, Amended 9-21-77, 7-13-80, 1-12-82, Formerly 34-5.02, Amended_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Virlindia Doss, Executive Director, 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: August 15, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 13, 2013