The purpose of the proposed amendment is to update and refine language pertaining to the process governing advisory opinions regarding how Part III, Chapter 112, F.S., or Art. II, Sec. 8, Fla. Const., and other statutory provisions apply to a public ...

 

COMMISSION ON ETHICS

RULE NOS.:RULE TITLES:

34-6.002Persons Who May Receive an Advisory Opinion - Standing

34-6.006Receipt of Requests for Advisory Opinions and Withdrawal of Requests

34-6.0065Emergency Requests for Advisory Opinions

34-6.007Consideration and Issuance of Advisory Opinions by the Commission; Reconsideration of Opinions

34-6.008Effect of an Advisory Opinion

34-6.009Publication of the Name of the Person Seeking the Advisory Opinion

PURPOSE AND EFFECT: The purpose of the proposed amendment is to update and refine language pertaining to the process governing advisory opinions regarding how Part III, Chapter 112, F.S., or Art. II, Sec. 8, Fla. Const., and other statutory provisions apply to a public officer, candidate for public office, or public employee.

SUMMARY: This rulemaking amends Rule 34-6.002(6), F.A.C., to remove language regarding the ability of attorneys to request advisory opinions on behalf of clients. Rule 34-6.006(2), F.A.C., has been amended to remove language pertaining to advisory opinions sought under Section 112.3215, F.S. Rule 34-6.0065, F.A.C., has been amended to remove the reference to Rule 34-2.004, F.A.C., which has been repealed. Rule 34-6.007(3), F.A.C., has been amended to omit language addressing the reconsideration of advisory opinions, a practice which is best addressed via alternative methods. Rule 34-6.008, F.A.C., has been amended to remove the provision addressing the effect of advisory opinions. Rule 34-6.009, F.A.C., has been amended to remove language pertaining to advisory opinions sought under Section 112.3215, F.S.

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 rules of this nature, the adverse impact of the 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), F.S.

LAW IMPLEMENTED: 112.3215(12), 112.322(3), 350.041(3), 350.043, F.S.

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

DATE AND TIME: October 23, 2015, 8:30 a.m.

PLACE: Third Floor Courtroom, First District Court of Appeal, 2000 Drayton Drive, 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: Lindsey Smith, Executive Secretary, Commission on Ethics. 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: Caroline Klancke, Attorney, Commission on Ethics

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

34-6.002 Persons Who May Receive an Advisory Opinion ‒ Standing.

(1) No change.

(2) A public officer or employee having the power to hire or terminate employees may request an advisory opinion about how the Code of Ethics applies to any such employee or applicant for employment. A public officer having the authority to appoint a person to public office may request an advisory opinion under the Code of Ethics with respect to any such person; where an appointment is made by a commission, council, or board rather than by an individual public officer, the commission, council, or board or any member thereof may request an advisory opinion with respect to any such appointee.

(3) through (5) No change.

(6) An attorney may request an advisory opinion in behalf of a client if the client would have standing to request that opinion under subsection (1), (2), (3), (4) or (5) above, and where such standing clearly appears in the written request. An employee of a person or body having standing under subsection (1), (2), (3), (4) or (5) above, may request an opinion in behalf of that person or body when directed to do so by that person or body and where such standing and direction clearly appear in the written request. In these cases, the opinion shall be issued to the attorney or employee who requested the opinion. An elected official may request an advisory opinion in behalf of a constituent if the constituent would have standing under subsection (1), (2), (3), (4) or (5) above, and if the constituent has requested the legislator to seek the opinion from the Commission, where such standing and the fact of the constituent's request clearly appear in the written request. However, in order to avoid any appearance of impropriety or undue influence, such opinions shall be issued directly to and in the name of the constituent.

PROPOSED EFFECTIVE DATE January 1, 2016.

Rulemaking Authority 112.322(9) FS. Law Implemented 112.3215(10)(12), 112.322(3), 350.041(3), 350.043 FS. History–New 4-11-76, Amended 9-21-77, 1-23-78, 7-2-80, Formerly 34-6.02, Amended 8-7-94, 7-28-98, ___.

 

34-6.006 Receipt of Requests for Advisory Opinions and Withdrawal of Requests.

(1) No change.

(2) If the person seeking the advisory opinion is entitled to receive an advisory opinion, the staff shall promptly acknowledge receipt of the request. Unless the opinion sought is under Section 112.3215, F.S.,The person requesting the opinion shall also be provided with an authorization to sign and return to the Commission, authorizing the Commission to publish the person’s name and that of an employee or appointee about whom the person is authorized to inquire when the opinion is published. In addition, the authorization shall provide for the signature of the person who initiated the request for the opinion, if different from the person requesting the opinion, authorizing the Commission to publish his or her name. The authorization shall state that unless consent is given, these names will not be published.

(3) through (7) No change.

PROPOSED EFFECTIVE DATE January 1, 2016.

Rulemaking Authority 112.322(9) FS. Law Implemented 112.3215(10)(12), 112.322(3), 350.041(3), 350.043 FS. History–New 4-11-76, Amended 4-7-77, 9-21-77, 1-23-78, Formerly 34-6.06, Amended 8-7-94, 7-28-98, ____.

 

34-6.0065 Emergency Requests for Advisory Opinions.

Except in emergency situations as defined in Rule 34-2.004, F.A.C. or for other good cause shown, no request for an advisory opinion shall be agendaed for Commission action at a public meeting if the request is received after the fifteenth day prior to the meeting. The decision of whether an emergency exists or whether good cause has been shown shall lie within the discretion of the Chairman and the Executive Director, who shall decide whether to agenda the request based upon a written statement from the person(s) requesting the opinion describing the facts and circumstances constituting an emergency or good cause.

PROPOSED EFFECTIVE DATE January 1, 2016.

Rulemaking Authority 112.322(9) FS. Law Implemented 112.3215(10)(12), 112.322(3), 350.041(3), 350.043 FS. History–New 4-21-83, Formerly 34-6.065, Amended 8-7-94, ____.

 

34-6.007 Consideration and Issuance of Advisory Opinions by the Commission; Reconsideration of Opinions.

(1) through (2) No change.

(3) A person requesting an advisory opinion may request reconsideration of the opinion by filing with the Commission within 30 days from the date it is rendered a written statement setting forth material facts and circumstances which were not before the Commission in its deliberations on the opinion or which were misstated in the opinion. If the Commission finds that these facts and circumstances would alter the opinion, the Commission may order its staff to redraft the final opinion or to prepare a new working draft of the opinion for later consideration. If the Commission finds that these facts and circumstances would not alter the opinion, it shall deny the request for reconsideration and so notify the person requesting the opinion by letter.

PROPOSED EFFECTIVE DATE January 1, 2016.

Rulemaking Authority 112.322(9) FS. Law Implemented 112.3215(10)(12), 112.322(3), 350.041(3), 350.043 FS. History–New 4-11-76, Amended 9-21-77, 7-2-80, Formerly 34-6.07, Amended 8-7-94, ____.

 

34-6.008 Effect of an Advisory Opinion.

PROPOSED EFFECTIVE DATE January 1, 2016.

Rulemaking Authority 112.322(9) FS. Law Implemented 112.3215(10)(12), 112.322(3), 350.041(3), 350.043 FS. History–New 4-11-76, Amended 9-21-77, Formerly 34-6.08, Amended 8-7-94, 7-28-98, Repealed__________.

 

34-6.009 Publication of the Name of the Person Seeking the Advisory Opinion.

Advisory opinions shall be published, but unless the opinion is rendered under Section 112.3215, F.S., the name of the person seeking the advisory opinion, the name of an employee or appointee about whom he or she is authorized to inquire, and the name of the person who initiated the request for the opinion, if different, shall not be published unless consent to the use of these names is received by the Commission.

PROPOSED EFFECTIVE DATE January 1, 2016.

Rulemaking Authority 112.322(9) FS. Law Implemented 112.3215(10)(12), 112.322(3), 350.041(3), 350.043 FS. History–New 4-11-76, Amended 1-23-78, Formerly 34-6.09, Amended 8-7-94, 7-28-98, ____.

 

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: September 22, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 22, 2015