This rulemaking is intended to update certain rules within Chapter 34-5, F.A.C., to reflect recent changes that Ch. 2024-253, Laws of Florida, made to Sections 112.317 and 112.324, Florida Statutes. The effect of the changes ....

 

COMMISSION ON ETHICS

RULE NO.:RULE TITLE:

34-5.002Review 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

34-5.0291Award of Attorney's Fees

PURPOSE AND EFFECT: This rulemaking is intended to update certain rules within Chapter 34-5, F.A.C., to reflect recent changes that Ch. 2024-253, Laws of Florida, made to Sections 112.317 and 112.324, Florida Statutes. The effect of the changes will be to limit the Commission's investigation of alleged violations to only those which are based upon personal knowledge or information other than hearsay, in accordance with the statutory amendment. The rules will also clarify in what circumstances an allegation will be considered to be based on information other than hearsay. In addition, the rules will indicate that candidates for public office who are the subject of an ethics complaint may petition for an award of costs and reasonable attorney fees, in accordance with the statutory amendment.

SUMMARY: Rule 34-5.002(1) will be updated to reflect that, when evaluating whether an allegation in a complaint is legally sufficient, the Executive Director of the Commission must consider whether it is based on the complainant's personal knowledge or information other than hearsay. Rule 34-5.002(2) will be amended to indicate that for an allegation to be legally sufficient, each element of the statute to be investigated must be supported in the complaint by personal information or information other than hearsay. Rule 34-5.002(2) will also indicate the circumstances in which an allegation will be considered to be based on information other than hearsay. In particular, the rule will indicate that, in accordance with the Fourth District Court of Appeal's ruling in "Florida Elections Commission v. Valliere," 45 So. 3d 506 (2010), which interpreted the meaning of this same phrase when used in the Florida Elections Code, the evidence supporting the allegation can be based on hearsay that is or likely will be admissible under a statutory hearsay exception. Exact language from the court's ruling will be used in the rule. Rule 34-5.002(2) will go on to clarify how complaints will be assessed when filed in a representative capacity on behalf of an incorporated association or group, as well as how an allegation may be found legally sufficient even if other allegations in the complaint are not. Finally, provisions in Rule 34-5.0291 will be updated to indicate that candidates for public office may petition for costs and reasonable attorney's fees, and will be considered parties if a fees hearing is held at the Division of Administrative Hearings.

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: considering that these changes pertain only to the internal processes of the Commission (i.e., evaluation of the legal sufficiency of complaints) and the recovery of costs and reasonable attorney's fees from a private complainant, the adverse impact or regulatory cost, if any, do not exceed and would not be expected to exceed any one of the economic criteria set forth in Section 120.541(2)(a), FS.

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: 112.317 and 112.324, FS. (as amended by Ch. 2024-253, Laws of Fla.)

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

DATE AND TIME: September 13, 2024, 8:30 a.m.

PLACE: First District Court of Appeal, Third Floor Courtroom, 2000 Drayton Drive, Tallahassee, Florida.

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: Diana Westberry, Office Manager, Florida 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: Gray Schafer, Assistant General Counsel, Florida Commission on Ethics, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

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) Legal Sufficiency Review. After a complaint has been subject to a Technical and Clerical Review, as described in Rule 34-5.001(2), F.A.C., reviewed and found to be in proper form, the complaint shall be reviewed by the Executive Director in order to determine whether the complaint is legally sufficient to allege 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, and the allegation of a breach of the public trust is based upon personal knowledge or information other than hearsay. 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) Personal Knowledge or Information Other Than Hearsay. For an allegation to be considered legally sufficient, each element of the statute to be investigated, except elements pertaining to mental state, intent, or knowledge of an individual, must be supported by information in the complaint that is based on personal knowledge of the complainant or information other than hearsay.

(a) An allegation will be considered based on information other than hearsay so long as the evidence supporting the allegation is:

1. Information that is not hearsay;

2. Hearsay that is admissible under Sections 90.801 through 90.805, F.S. (e.g., the admission of a public officer); or

3. Hearsay that will likely be admissible under Sections 90.801 through 90.805, F.S. (e.g., a campaign treasurer report that would be admissible with the testimony of a records custodian, as provided by Section 90.803(6)(a), F.S.).

(b) In the case of a complaint filed in a representative capacity on behalf of an incorporated association or group, an allegation of a breach of public trust will be considered legally sufficient only if every element of the statute(s) to be investigated, except elements pertaining to the mental state, intent, or knowledge of an individual, is supported by information in the complaint that is based upon the personal knowledge of the person(s) signing the complaint, the personal knowledge of the individuals(s) who authorized the signing of the complaint, or information other than hearsay.

(c) A determination that a particular allegation in a complaint is legally sufficient to establish a breach of the public trust may be made even when other allegations in the complaint are determined not to be based upon personal knowledge or information other than hearsay.

(3)(2) No change.

(4)(3) No change.

(5)(4) No change.

Rulemaking Authority 112.322(9) FS. Law Implemented Art. II, Section 8(f), (h), Fla. Const., Chapter 2014-183 Sections 3 and 4, LOF, 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 10-29-13, 10-19-14,       .

 

34-5.0291 Award of Attorney’s Fees.

(1) If the Commission determines that a person has filed a complaint against a public officer or employee or a candidate for public office with a malicious intent to injure the reputation of such officer or employee or candidate by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of the Code of Ethics, the complainant shall be liable for costs plus reasonable attorney’s fees incurred in the defense of the person complained against, including the costs and reasonable attorney’s fees incurred in proving entitlement to and the amount of costs and fees.

(2) The Commission shall make such a determination only upon a petition for costs and attorney’s fees filed with the Commission by the public officer or employee or candidate for public office complained against within 30 days following a dismissal of the complaint. Such petition shall state with particularity the facts and grounds which would prove entitlement to costs and attorney’s fees and shall include the amount of such costs and attorney’s fees expended by, or on behalf of, such petitioner through the date of the filing of the petition. Staff shall forward a copy of said petition to the complainant by certified mail, return receipt requested.

(3) If the facts and grounds alleged in the petition are not sufficient to state a claim for costs and reasonable attorney’s fees, the Commission shall dismiss the petition after an informal proceeding. If the Commission determines that the facts and grounds are sufficient, the Chair after considering the Commission’s workload, shall direct that the hearing of the petition be held before the Division of Administrative Hearings, the full Commission, or a single Commission member serving as hearing officer. Commission hearing officers shall be appointed by the Chair. The hearing shall be a formal proceeding under Chapter 120, F.S., and the Uniform Rules of the Administration Commission, Chapter 28-106, F.A.C. All discovery and hearing procedures shall be governed by the applicable provisions of Chapter 120, F.S. and Chapter 28-106, F.A.C. The parties to the hearing shall be the petitioner (i.e., the public officer or employee or candidate for public office who was the respondent in the complaint proceeding) and the complainant(s), who may be represented by legal counsel.

(4) No change.

(5) No change.

(6) No change.

Rulemaking Authority 112.322(9) FS. Law Implemented 112.317(7)(8), 112.322, 112.324 FS. History–New 2-16-95, Amended 7-28-98, 7-30-00, 9-4-12,       .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Gray Schafer, Assistant General Counsel, Florida Commission on Ethics, [phone].

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kerrie J. Stillman, Executive Director, Florida Commission on Ethics

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 14, 2024

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 14, 2024