House Bill hb0273

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    Florida House of Representatives - 2002                 HB 273

        By the Committee on State Administration and
    Representative Brummer





  1                      A bill to be entitled

  2         An act relating to public records and public

  3         meeting exemptions regarding complaints of

  4         ethics violations; amending s. 112.324, F.S.,

  5         which provides an exemption from public records

  6         requirements for certain information held by

  7         the Commission on Ethics and a Commission on

  8         Ethics and Public Trust regarding complaints of

  9         ethics violations and an exemption from public

10         meeting requirements for commission proceedings

11         held pursuant to such complaints; reenacting

12         such exemptions and removing the October 2,

13         2002, repeal thereof scheduled under the Open

14         Government Sunset Review Act of 1995;

15         clarifying language; deleting obsolete

16         language; providing an effective date.

17

18  Be It Enacted by the Legislature of the State of Florida:

19

20         Section 1.  Notwithstanding the October 2, 2002, repeal

21  of said section scheduled pursuant to the Open Government

22  Sunset Review Act of 1995, section 112.324, Florida Statutes,

23  is reenacted and amended to read:

24         112.324  Procedures on complaints of violations; public

25  records and meeting exemptions.--

26         (1)  Upon a written complaint executed on a form

27  prescribed by the commission and signed under oath or

28  affirmation by any person, the commission shall investigate

29  any alleged violation of this part or any other alleged breach

30  of the public trust within the jurisdiction of the commission

31  as provided in s. 8(f), Art. II of the State Constitution in

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  1  accordance with procedures set forth herein. Within 5 days

  2  after receipt of a complaint by the commission, a copy shall

  3  be transmitted to the alleged violator.

  4         (2)  All proceedings, The complaint, and other records

  5  relating to the complaint or to any preliminary investigation

  6  held by the commission or its agents or as provided herein, or

  7  as provided by a Commission on Ethics and Public Trust

  8  established by any county defined in s. 125.011(1), are shall

  9  be confidential and exempt from the provisions of s.

10  119.07(1), and s. 24(a), Art. I of the State Constitution, and

11  any proceeding conducted by the commission or a Commission on

12  Ethics and Public Trust, pursuant to a complaint or

13  preliminary investigation, is exempt from the provisions of s.

14  286.011, s. 24(b), Art. I of the State Constitution, and s.

15  120.525, either until the complaint is dismissed as legally

16  insufficient, until the alleged violator requests in writing

17  that such investigation and records and proceedings be made

18  public, records or until the commission or a Commission on

19  Ethics and Public Trust determines, based on such

20  investigation, whether probable cause exists to believe that a

21  violation has occurred the preliminary investigation is

22  completed, notwithstanding any provision of chapter 120 or s.

23  286.011 and s. 24(b), Art. I of the State Constitution.  In no

24  event shall a complaint under this part against a candidate in

25  any general, special, or primary election be filed or any

26  intention of filing such a complaint be disclosed on the day

27  of any such election or within the 5 days immediately

28  preceding the date of the election. This subsection is

29  repealed October 2, 2002, and must be reviewed by the

30  Legislature before that date in accordance with s. 119.15, the

31  Open Government Sunset Review Act of 1995.

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  1         (3)(2)  A preliminary investigation shall be undertaken

  2  by the commission of each legally sufficient complaint over

  3  which the commission has jurisdiction to determine whether

  4  there is probable cause to believe that a violation has

  5  occurred. If, upon completion of the preliminary

  6  investigation, the commission finds no probable cause to

  7  believe that this part has been violated or that any other

  8  breach of the public trust has been committed, the commission

  9  shall dismiss the complaint with the issuance of a public

10  report to the complainant and the alleged violator, stating

11  with particularity its reasons for dismissal of the complaint.

12  At that time, the complaint and all materials relating to the

13  complaint shall become a matter of public record. If the

14  commission finds from the preliminary investigation probable

15  cause to believe that this part has been violated or that any

16  other breach of the public trust has been committed, it shall

17  so notify the complainant and the alleged violator in writing.

18  Such notification and all documents made or received in the

19  disposition of the complaint shall then become public records.

20  Upon request submitted to the commission in writing, any

21  person who the commission finds probable cause to believe has

22  violated any provision of this part or has committed any other

23  breach of the public trust shall be entitled to a public

24  hearing.  Such person shall be deemed to have waived the right

25  to a public hearing if the request is not received within 14

26  days following the mailing of the probable cause notification

27  required by this subsection. However, the commission may on

28  its own motion, require a public hearing, may conduct such

29  further investigation as it deems necessary, and may enter

30  into such stipulations and settlements as it finds to be just

31  and in the best interest of the State.  The commission is

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  1  without jurisdiction to, and no respondent may voluntarily or

  2  involuntarily, enter into a stipulation or settlement which

  3  imposes any penalty, including, but not limited to, a sanction

  4  or admonition or any other penalty contained in s. 112.317.

  5  Penalties shall be imposed only by the appropriate

  6  disciplinary authority as designated in this section.

  7         (4)(3)  If, in cases pertaining to members of the

  8  Legislature, upon completion of a full and final investigation

  9  by the commission, the commission finds that there has been a

10  violation of this part or of any provision of s. 8, Art. II of

11  the State Constitution, the commission shall forward a copy of

12  the complaint and its findings by certified mail to the

13  President of the Senate or the Speaker of the House of

14  Representatives, whichever is applicable, who shall refer the

15  complaint to the appropriate committee for investigation and

16  action which shall be governed by the rules of its respective

17  house.  It shall be the duty of the committee to report its

18  final action upon the complaint to the commission within 90

19  days of the date of transmittal to the respective house.  Upon

20  request of the committee, the commission shall submit a

21  recommendation as to what penalty, if any, should be imposed.

22  In the case of a member of the Legislature, the house in which

23  the member serves shall have the power to invoke the penalty

24  provisions of this part.

25         (5)(4)  If, in cases pertaining to complaints against

26  impeachable officers, upon completion of a full and final

27  investigation by the commission, the commission finds that

28  there has been a violation of this part or of any provision of

29  s. 8, Art. II of the State Constitution, and the commission

30  finds that the violation may constitute grounds for

31  impeachment, the commission shall forward a copy of the

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  1  complaint and its findings by certified mail to the Speaker of

  2  the House of Representatives, who shall refer the complaint to

  3  the appropriate committee for investigation and action which

  4  shall be governed by the rules of the House of

  5  Representatives.  It shall be the duty of the committee to

  6  report its final action upon the complaint to the commission

  7  within 90 days of the date of transmittal.

  8         (6)(5)  If the commission finds that there has been a

  9  violation of this part or of any provision of s. 8, Art. II of

10  the State Constitution by an impeachable officer other than

11  the Governor, and the commission recommends public censure and

12  reprimand, forfeiture of a portion of the officer's salary, a

13  civil penalty, or restitution, the commission shall report its

14  findings and recommendation of disciplinary action to the

15  Governor, who shall have the power to invoke the penalty

16  provisions of this part.

17         (7)(6)  If the commission finds that there has been a

18  violation of this part or of any provision of s. 8, Art. II of

19  the State Constitution by the Governor, and the commission

20  recommends public censure and reprimand, forfeiture of a

21  portion of the Governor's salary, a civil penalty, or

22  restitution, the commission shall report its findings and

23  recommendation of disciplinary action to the Attorney General,

24  who shall have the power to invoke the penalty provisions of

25  this part.

26         (8)(7)  If, in cases pertaining to complaints other

27  than complaints against impeachable officers or members of the

28  Legislature, upon completion of a full and final investigation

29  by the commission, the commission finds that there has been a

30  violation of this part or of s. 8, Art. II of the State

31  Constitution, it shall be the duty of the commission to report

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  1  its findings and recommend appropriate action to the proper

  2  disciplinary official or body as follows, and such official or

  3  body shall have the power to invoke the penalty provisions of

  4  this part, including the power to order the appropriate

  5  elections official to remove a candidate from the ballot for a

  6  violation of s. 112.3145 or s. 8(a) and (i), Art. II of the

  7  State Constitution:

  8         (a)  The President of the Senate and the Speaker of the

  9  House of Representatives, jointly, in any case concerning the

10  Public Counsel, members of the Public Service Commission,

11  members of the Public Service Commission Nominating Council,

12  the Auditor General, the director of the Office of Program

13  Policy Analysis and Government Accountability, or members of

14  the Legislative Committee on Intergovernmental Relations.

15         (b)  The Supreme Court, in any case concerning an

16  employee of the judicial branch.

17         (c)  The President of the Senate, in any case

18  concerning an employee of the Senate; the Speaker of the House

19  of Representatives, in any case concerning an employee of the

20  House of Representatives; or the President and the Speaker,

21  jointly, in any case concerning an employee of a committee of

22  the Legislature whose members are appointed solely by the

23  President and the Speaker or in any case concerning an

24  employee of the Public Counsel, Public Service Commission,

25  Auditor General, Office of Program Policy Analysis and

26  Government Accountability, or Legislative Committee on

27  Intergovernmental Relations.

28         (d)  Except as otherwise provided by this part, the

29  Governor, in the case of any other public officer, public

30  employee, former public officer or public employee, candidate,

31  or former candidate.

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  1         (e)  The President of the Senate or the Speaker of the

  2  House of Representatives, whichever is applicable, in any case

  3  concerning a former member of the Legislature who has violated

  4  a provision applicable to former members or whose violation

  5  occurred while a member of the Legislature.

  6         (9)(8)  In addition to reporting its findings to the

  7  proper disciplinary body or official, the commission shall

  8  report these findings to the state attorney or any other

  9  appropriate official or agency having authority to initiate

10  prosecution when violation of criminal law is indicated.

11         (10)(9)  Notwithstanding the foregoing procedures of

12  this section, a sworn complaint against any member or employee

13  of the Commission on Ethics for violation of this part or of

14  s. 8, Art. II of the State Constitution shall be filed with

15  the President of the Senate and the Speaker of the House of

16  Representatives.  Each presiding officer shall, after

17  determining that there are sufficient grounds for review,

18  appoint three members of their respective bodies to a special

19  joint committee who shall investigate the complaint.  The

20  members shall elect a chair from among their number.  If the

21  special joint committee finds insufficient evidence to

22  establish probable cause to believe a violation of this part

23  or of s. 8, Art. II of the State Constitution has occurred, it

24  shall dismiss the complaint. If, upon completion of its

25  preliminary investigation, the committee finds sufficient

26  evidence to establish probable cause to believe a violation

27  has occurred, the chair thereof shall transmit such findings

28  to the Governor who shall convene a meeting of the Governor,

29  the President of the Senate, the Speaker of the House of

30  Representatives, and the Chief Justice of the Supreme Court to

31  take such final action on the complaint as they shall deem

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  1  appropriate, consistent with the penalty provisions of this

  2  part. Upon request of a majority of the Governor, the

  3  President of the Senate, the Speaker of the House of

  4  Representatives, and the Chief Justice of the Supreme Court,

  5  the special joint committee shall submit a recommendation as

  6  to what penalty, if any, should be imposed.

  7         (11)(10)  Notwithstanding the provisions of subsections

  8  (1)-(8)(7), the commission may, at its discretion, dismiss any

  9  complaint at any stage of disposition should it determine that

10  the public interest would not be served by proceeding further,

11  in which case the commission shall issue a public report

12  stating with particularity its reasons for the dismissal.  The

13  investigation of facts and parties materially related to a

14  complaint, as provided in s. 112.322(1) and pursuant to the

15  definitions contained in s. 112.312(11) and (18), and the

16  amendment of s. 112.3143 shall apply only to alleged

17  violations occurring after May 24, 1991.

18         Section 2.  This act shall take effect October 1, 2002.

19

20            *****************************************

21                          HOUSE SUMMARY

22
      Reenacts the public records exemption for certain
23    information held by the Commission on Ethics and a
      Commission on Ethics and Public Trust regarding
24    complaints of ethics violations and the public meeting
      exemption for commission proceedings held pursuant to
25    such complaints, and removes the October 2, 2002, repeal
      thereof scheduled under the Open Government Sunset Review
26    Act of 1995.

27

28

29

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