Senate Bill sb2674

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    Florida Senate - 2006                                  SB 2674

    By Senator Haridopolos





    26-1543-06

  1                      A bill to be entitled

  2         An act relating to the Whistle-blower's Act;

  3         amending s. 112.3187, F.S.; providing

  4         additional legislative intent; redefining the

  5         term "agency" and defining the terms "gross

  6         misconduct" and "state agency"; revising

  7         information that may be disclosed under the

  8         act; revising the list of permissible

  9         recipients of information disclosed under the

10         act; providing that certain disclosures are not

11         entitled to protection; revising the list of

12         employees and persons protected under the act

13         and who may seek remedies for improper conduct

14         by a state agency or independent contractor;

15         making statutorily enumerated remedies

16         permissible, rather than mandatory; providing

17         an additional defense; amending s. 112.3188,

18         F.S.; revising conditions for disclosure of the

19         name or identity of a whistle blower;

20         authorizing disclosure to staff of the Florida

21         Commission on Human Relations; amending s.

22         112.3189, F.S.; prescribing procedures upon

23         receipt of whistle-blower information,

24         including such information received from

25         employees or former employees of independent

26         contractors; revising procedure for an agency

27         not having an inspector general to designate an

28         employee to receive certain information;

29         transferring certain duties from agency heads

30         specifically to agency inspectors general or

31         designated employees; amending s. 112.31895,

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 1         F.S.; prescribing procedures for investigation

 2         of prohibited personnel actions, including such

 3         actions against employees or former employees

 4         of independent contractors; revising standards

 5         for corrective action and termination of

 6         investigations; providing an effective date.

 7  

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

 9  

10         Section 1.  Section 112.3187, Florida Statutes, is

11  amended to read:

12         112.3187  Adverse action against employee for

13  disclosing information of specified nature prohibited;

14  employee remedy and relief.--

15         (1)  SHORT TITLE.--Sections 112.3187-112.31895 may be

16  cited as the "Whistle-blower's Act."

17         (2)  LEGISLATIVE INTENT.--It is the intent of the

18  Legislature to prevent agencies or independent contractors

19  from taking retaliatory action against an employee who reports

20  to an appropriate agency violations of law on the part of a

21  public employer or independent contractor that create a

22  substantial and specific danger to the public's health,

23  safety, or welfare. It is further the intent of the

24  Legislature to prevent agencies or independent contractors

25  from taking retaliatory action against any person who

26  discloses information to an appropriate agency alleging any

27  act or suspected act of gross mismanagement, gross misconduct

28  improper use of governmental office, gross waste of public

29  funds, or any other abuse or gross neglect of duty on the part

30  of an agency, public officer, or employee.

31  

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 1         (3)  DEFINITIONS.--As used in this act, unless

 2  otherwise specified, the following words or terms shall have

 3  the meanings indicated:

 4         (a)  "Agency" means any state, regional, county, local,

 5  or municipal government entity, whether executive, judicial,

 6  or legislative; any official, officer, department, division,

 7  bureau, commission, authority, or political subdivision

 8  therein; or any public school, community college, or state

 9  university. For purposes of chapters 215 and 216, the term

10  includes, but is not limited to, state attorneys, public

11  defenders, the capital collateral regional counsels, the

12  Justice Administrative Commission, the Florida Housing Finance

13  Corporation, and the Florida Public Service Commission. Solely

14  for the purposes of implementing s. 19(h), Art. III of the

15  State Constitution, the term includes the judicial branch.

16         (b)  "Employee" means a person who performs services

17  for, and under the control and direction of, or contracts

18  with, an agency or independent contractor for wages or other

19  remuneration.

20         (c)  "Adverse personnel action" means the discharge,

21  suspension, transfer, or demotion of any employee or the

22  withholding of bonuses, the reduction in salary or benefits,

23  or any other adverse action taken against an employee within

24  the terms and conditions of employment by an agency or

25  independent contractor.

26         (d)  "Independent contractor" means a person, other

27  than an agency, engaged in any business and who enters into a

28  contract, including a provider agreement, with an agency.

29         (e)  "Gross mismanagement" means a continuous pattern

30  of managerial abuses, wrongful or arbitrary and capricious

31  

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 1  actions, or fraudulent or criminal conduct which may have a

 2  substantial adverse economic impact.

 3         (f)  "Gross misconduct" means a willful, wanton, or

 4  flagrant transgression of law or established rule which is of

 5  such a degree or recurrence as to show a substantial disregard

 6  of the employer's interests or the employee's duties and

 7  obligations to the public.

 8         (g)  "State agency" means any official, officer,

 9  commission, board, authority, council, committee, or

10  department of the executive branch of state government. For

11  purposes of chapters 215 and 216, the term includes, but is

12  not limited to, state attorneys, public defenders, the capital

13  collateral regional counsels, the Justice Administrative

14  Commission, the Florida Housing Finance Corporation, and the

15  Florida Public Service Commission. Solely for the purposes of

16  implementing s. 19(h), Art. III of the State Constitution, the

17  term includes the judicial branch.

18         (4)  ACTIONS PROHIBITED.--

19         (a)  An agency or independent contractor shall not

20  dismiss, discipline, or take any other adverse personnel

21  action against an employee for disclosing information pursuant

22  to the provisions of this section.

23         (b)  An agency or independent contractor shall not take

24  any adverse action that affects the rights or interests of a

25  person in retaliation for the person's disclosure of

26  information under this section.

27         (c)  The provisions of This subsection is shall not be

28  applicable when an employee or person discloses information

29  known, or which reasonably should be known, by the employee or

30  person to be false.

31  

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 1         (5)  NATURE OF INFORMATION DISCLOSED.--The information

 2  disclosed under this section must include:

 3         (a)  Any violation or suspected violation of any

 4  federal, state, or local law, rule, or regulation committed by

 5  an employee or agent of an agency or independent contractor

 6  which creates and presents a substantial and specific danger

 7  to the public's health, safety, or welfare.

 8         (b)  Any act or suspected act of gross mismanagement,

 9  malfeasance, misfeasance, gross waste of public funds,

10  suspected or actual Medicaid fraud or abuse, or gross neglect

11  of duty committed by an employee or agent of an agency or

12  independent contractor.

13         (5)(6)  TO WHOM INFORMATION DISCLOSED.--The information

14  disclosed under this section must be disclosed to one of the

15  following:

16         (a)  Any agency or federal government entity, other

17  than as specified in paragraph (b), having the authority to

18  investigate, police, manage, or otherwise remedy the violation

19  or act except, if the individual disclosing the information is

20  employed by the agency to which the disclosure relates, the

21  disclosure must be made pursuant to paragraph (b), paragraph

22  (c), or paragraph (d);

23         (b)  , including, but not limited to, The Office of the

24  Chief Inspector General, an agency inspector general or the

25  employee designated as agency inspector general under s.

26  112.3189(1), or inspectors general under s. 20.055;,

27         (c)  The Florida Commission on Human Relations; or, and

28         (d)  The whistle-blower's hotline created under s.

29  112.3189.

30  

31  

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 1  Information disclosed to any other person does not qualify for

 2  protection under this act, except that However, for

 3  disclosures concerning a local governmental entity, including

 4  any regional, county, or municipal entity, special district,

 5  community college district, or school district or any

 6  political subdivision of any of the foregoing, the information

 7  must be disclosed to a chief executive officer as defined in

 8  s. 447.203(9) or other appropriate local official.

 9         (6)  NATURE OF INFORMATION DISCLOSED.--The information

10  disclosed under this section must include one of the

11  following:

12         (a)  Any violation or reasonably suspected violation of

13  any federal, state, or local law, rule, or regulation

14  committed by an employee or agent of an agency or independent

15  contractor which creates and presents a substantial and

16  specific danger to the public's health, safety, or welfare.

17         (b)  Any act or reasonably suspected act of gross

18  mismanagement, gross misconduct, gross waste of public funds,

19  suspected or actual Medicaid fraud or abuse, or gross neglect

20  of duty committed by an employee or agent of an agency or

21  independent contractor.

22  

23  Any information disclosed by an employee or former employee of

24  an independent contractor must pertain to the contract between

25  the agency and the independent contractor.

26         (7)  EMPLOYEES AND PERSONS PROTECTED.--This section

27  protects employees and persons of a state agency or

28  independent contractor who disclose information pursuant to

29  subsections (5) and (6) by one or more of the following

30  methods:

31  

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 1         (a)  On their own initiative, submitting in a written

 2  and signed complaint;

 3         (b)  Participating, as requested, who are requested to

 4  participate in an investigation, hearing, or other inquiry

 5  relating to this act which is being conducted by any agency or

 6  federal government entity;

 7         (c)  Refusing who refuse to participate in any adverse

 8  action prohibited by this section; or

 9         (d)  Initiating who initiate a complaint through the

10  whistle-blower's hotline or the hotline of the Medicaid Fraud

11  Control Unit of the Department of Legal Affairs; or

12         (e)  Filing employees who file any written complaint to

13  their supervisory officials; or

14         (f)  Submitting employees who submit a written and

15  signed complaint to the Chief Inspector General in the

16  Executive Office of the Governor, to the employee designated

17  as agency inspector general under s. 112.3189(1), or to the

18  Florida Commission on Human Relations.  The provisions of

19  

20  This section may not be used by a person while he or she is

21  under the care, custody, or control of the state correctional

22  system or, after release from the care, custody, or control of

23  the state correctional system, with respect to circumstances

24  that occurred during any period of incarceration.  No remedy

25  or other protection under ss. 112.3187-112.31895 applies to

26  any person who has committed or intentionally participated in

27  committing the violation or suspected violation for which

28  protection under ss. 112.3187-112.31895 is being sought.

29         (8)  REMEDIES.--

30         (a)  Any employee of or applicant for employment with

31  any state agency, as the term "state agency" is defined in

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 1  this section s. 216.011, or any employee of an independent

 2  contractor with any state agency, as defined in this section,

 3  who is discharged, disciplined, or subjected to other adverse

 4  personnel action, or denied employment, because he or she

 5  engaged in an activity protected by this section may file a

 6  complaint, which complaint must be made in accordance with s.

 7  112.31895.  Upon receipt of notice from the Florida Commission

 8  on Human Relations of termination of the investigation, the

 9  complainant may elect to pursue the administrative remedy

10  available under s. 112.31895 or bring a civil action within

11  180 days after receipt of the notice.

12         (b)  Within 60 days after the action prohibited by this

13  section, any local public employee protected by this section

14  may file a complaint with the appropriate local governmental

15  authority, if that authority has established by ordinance an

16  administrative procedure for handling such complaints or has

17  contracted with the Division of Administrative Hearings under

18  s. 120.65 to conduct hearings under this section.  The

19  administrative procedure created by ordinance must provide for

20  the complaint to be heard by a panel of impartial persons

21  appointed by the appropriate local governmental authority.

22  Upon hearing the complaint, the panel must make findings of

23  fact and conclusions of law for a final decision by the local

24  governmental authority. Within 180 days after entry of a final

25  decision by the local governmental authority, the public

26  employee who filed the complaint may bring a civil action in

27  any court of competent jurisdiction. If the local governmental

28  authority has not established an administrative procedure by

29  ordinance or contract, a local public employee may, within 180

30  days after the action prohibited by this section, bring a

31  civil action in a court of competent jurisdiction. For the

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 1  purpose of this paragraph, the term "local governmental

 2  authority" includes any regional, county, or municipal entity,

 3  special district, community college district, or school

 4  district or any political subdivision of any of the foregoing.

 5         (c)  Any other person protected by this section may,

 6  after exhausting all available contractual or administrative

 7  remedies, bring a civil action in any court of competent

 8  jurisdiction within 180 days after the action prohibited by

 9  this section.

10         (9)  RELIEF.--In any action brought under this section,

11  the relief may must include the following:

12         (a)  Reinstatement of the employee to the same position

13  held before the adverse action was commenced, or to an

14  equivalent position or reasonable front pay as alternative

15  relief.

16         (b)  Reinstatement of the employee's full fringe

17  benefits and seniority rights, as appropriate.

18         (c)  Compensation, if appropriate, for lost wages,

19  benefits, or other lost remuneration caused by the adverse

20  action.

21         (d)  Payment of reasonable costs, including attorney's

22  fees, to a substantially prevailing employee, or to the

23  prevailing employer if the employee filed a frivolous action

24  in bad faith.

25         (e)  Issuance of an injunction, if appropriate, by a

26  court of competent jurisdiction.

27         (f)  Temporary reinstatement to the employee's former

28  position or to an equivalent position, pending the final

29  outcome on the complaint, if an employee complains of being

30  discharged in retaliation for a protected disclosure and if a

31  court of competent jurisdiction or the Florida Commission on

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 1  Human Relations, as applicable under s. 112.31895, determines

 2  that the disclosure was not made in bad faith or for a

 3  wrongful purpose or occurred after an agency's initiation of a

 4  personnel action against the employee which includes

 5  documentation of the employee's violation of a disciplinary

 6  standard or performance deficiency. This paragraph does not

 7  apply to an employee of a municipality.

 8         (10)  DEFENSES.--It shall be an affirmative defense to

 9  any action brought pursuant to this section that:

10         (a)  The adverse action was predicated upon grounds

11  other than, and would have been taken absent, the employee's

12  or person's exercise of rights protected by this section.

13         (b)  An employee or person discloses information known,

14  or which reasonably should have been known, by the employee or

15  person to be false.

16         (11)  EXISTING RIGHTS.--Sections 112.3187-112.31895 do

17  not diminish the rights, privileges, or remedies of an

18  employee under any other law or rule or under any collective

19  bargaining agreement or employment contract; however, the

20  election of remedies in s. 447.401 also applies to

21  whistle-blower actions.

22         Section 2.  Subsection (1) of section 112.3188, Florida

23  Statutes, is amended to read:

24         112.3188  Confidentiality of information given to the

25  Chief Inspector General, internal auditors, inspectors

26  general, local chief executive officers, or other appropriate

27  local officials.--

28         (1)  The name or identity of any individual who

29  discloses in good faith to the Chief Inspector General or an

30  agency inspector general, a local chief executive officer, or

31  

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 1  other appropriate local official information that alleges that

 2  an employee or agent of an agency or independent contractor:

 3         (a)  Has violated or is reasonably suspected of having

 4  violated any federal, state, or local law, rule, or

 5  regulation, thereby creating and presenting a substantial and

 6  specific danger to the public's health, safety, or welfare; or

 7         (b)  Has committed an act of gross mismanagement, gross

 8  misconduct malfeasance, misfeasance, gross waste of public

 9  funds, or gross neglect of duty

10  

11  may not be disclosed to anyone other than a member of the

12  Chief Inspector General's, agency inspector general's,

13  internal auditor's, Florida Commission on Human Relations',

14  local chief executive officer's, or other appropriate local

15  official's staff without the written consent of the

16  individual, unless the Chief Inspector General, internal

17  auditor, agency inspector general, local chief executive

18  officer, or other appropriate local official determines that:

19  the disclosure of the individual's identity is necessary to

20  prevent a substantial and specific danger to the public's

21  health, safety, or welfare or to prevent the imminent

22  commission of a crime; or the disclosure is unavoidable and

23  absolutely necessary during the course of the audit,

24  evaluation, or investigation.

25         Section 3.  Section 112.3189, Florida Statutes, is

26  amended to read:

27         112.3189  Investigative procedures upon receipt of

28  whistle-blower information from certain state and independent

29  contractor employees.--

30         (1)  This section only applies to the disclosure of

31  information as described in s. 112.3187(6) s. 112.3187(5) by

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 1  an employee or former employee of, or an applicant for

 2  employment with, a state agency or by an employee or former

 3  employee of an independent contractor, as the term "state

 4  agency" is defined in s. 216.011, to the Office of the Chief

 5  Inspector General of the Executive Office of the Governor or

 6  to the agency inspector general.  If an agency does not have

 7  an inspector general, the head of the state agency, as defined

 8  in s. 216.011, shall designate an employee, in consultation

 9  with the Chief Inspector General, to receive information

10  described in s. 112.3187(6) s. 112.3187(5).  For purposes of

11  this section and s. 112.3188 only, the employee designated by

12  the head of the state agency shall be deemed an agency

13  inspector general.

14         (2)  To facilitate the receipt of information described

15  in subsection (1), the Chief Inspector General shall maintain

16  an in-state toll-free whistle-blower's hotline and shall

17  circulate among the various state agencies an advisory for all

18  employees which indicates the existence of the toll-free

19  number and its purpose and provides an address to which

20  written whistle-blower information may be forwarded.

21         (3)  When a person alleges information described in s.

22  112.3187(6) s. 112.3187(5), the Chief Inspector General or

23  agency inspector general actually receiving such information

24  shall within 20 days of receiving such information determine:

25         (a)  Whether the information disclosed is the type of

26  information described in s. 112.3187(6) s. 112.3187(5).

27         (b)  Whether the source of the information is a person

28  who is an employee or former employee of, or an applicant for

29  employment with, a state agency or an employee or former

30  employee of an independent contractor with any state agency,

31  as defined in s. 216.011.

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 1         (c)  Whether the information actually disclosed

 2  demonstrates reasonable cause to suspect that an employee or

 3  agent of an agency or independent contractor has violated any

 4  federal, state, or local law, rule, or regulation, thereby

 5  creating and presenting a substantial and specific danger to

 6  the public's health, safety, or welfare, or has committed an

 7  act of gross mismanagement, gross misconduct malfeasance,

 8  misfeasance, gross waste of public funds, or gross neglect of

 9  duty.

10         (4)  If the Chief Inspector General or agency inspector

11  general under subsection (3) determines that the information

12  disclosed is not the type of information described in s.

13  112.3187(6) s. 112.3187(5), or that the source of the

14  information is not a person who is an employee or former

15  employee of, or an applicant for employment with, a state

16  agency or an employee or former employee of an independent

17  contractor with any state agency, as defined in s. 216.011, or

18  that the information disclosed does not demonstrate reasonable

19  cause to suspect that an employee or agent of an agency or

20  independent contractor has violated any federal, state, or

21  local law, rule, or regulation, thereby creating and

22  presenting a substantial and specific danger to the public's

23  health, safety, or welfare, or has committed an act of gross

24  mismanagement, gross misconduct malfeasance, misfeasance,

25  gross waste of public funds, or gross neglect of duty, the

26  Chief Inspector General or agency inspector general shall

27  notify the complainant of such fact and copy and return, upon

28  request of the complainant, any documents and other materials

29  that were provided by the complainant.

30         (5)(a)  If the Chief Inspector General or agency

31  inspector general under subsection (3) determines that the

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 1  information disclosed is the type of information described in

 2  s. 112.3187(6) s. 112.3187(5), that the source of the

 3  information is from a person who is an employee or former

 4  employee of, or an applicant for employment with, a state

 5  agency or an employee or former employee of an independent

 6  contractor with any state agency, as defined in s. 216.011,

 7  and that the information disclosed demonstrates reasonable

 8  cause to suspect that an employee or agent of an agency or

 9  independent contractor has violated any federal, state, or

10  local law, rule, or regulation, thereby creating a substantial

11  and specific danger to the public's health, safety, or

12  welfare, or has committed an act of gross mismanagement, gross

13  misconduct malfeasance, misfeasance, gross waste of public

14  funds, or gross neglect of duty, the Chief Inspector General

15  or agency inspector general making such determination shall

16  then conduct an investigation, unless the Chief Inspector

17  General or the agency inspector general determines, within 30

18  days after receiving the allegations from the complainant,

19  that such investigation is unnecessary.  For purposes of this

20  subsection, the Chief Inspector General or the agency

21  inspector general shall consider the following factors, but is

22  not limited to only the following factors, when deciding

23  whether the investigation is not necessary:

24         1.  The gravity of the disclosed information compared

25  to the time and expense of an investigation.

26         2.  The potential for an investigation to yield

27  recommendations that will make state government more efficient

28  and effective.

29         3.  The benefit to state government to have a final

30  report on the disclosed information.

31  

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 1         4.  Whether the alleged whistle-blower information

 2  primarily concerns personnel practices that may be

 3  investigated under chapter 110.

 4         5.  Whether another agency may be conducting an

 5  investigation and whether any investigation under this section

 6  could be duplicative.

 7         6.  The time that has elapsed between the alleged event

 8  and the disclosure of the information.

 9         (b)  If the Chief Inspector General or agency inspector

10  general determines under paragraph (a) that an investigation

11  is not necessary, the Chief Inspector General or agency

12  inspector general making such determination shall:

13         1.  Copy and return, upon request of the complainant,

14  any documents and other materials provided by the individual

15  who made the disclosure.

16         2.  Inform in writing the head of the state agency for

17  the agency inspector general making the determination that the

18  investigation is not necessary and the individual who made the

19  disclosure of the specific reasons why an investigation is not

20  necessary and why the disclosure will not be further acted on

21  under this section.

22         (6)  The agency inspector general may conduct an

23  investigation pursuant to paragraph (5)(a) only if the person

24  transmitting information to the agency inspector general is an

25  employee or former employee of, or an applicant for employment

26  with, the agency inspector general's agency or is an employee

27  or former employee of the agency's independent contractor. The

28  agency inspector general shall:

29         (a)  Conduct an investigation with respect to the

30  information and any related matters.

31  

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 1         (b)  Submit to the complainant and the Chief Inspector

 2  General, within 60 days after the date on which a

 3  determination to conduct an investigation is made under

 4  paragraph (5)(a), a final written report that sets forth the

 5  agency inspector general's findings, conclusions, and

 6  recommendations, except as provided under subsection (11).

 7  The complainant shall be advised in writing by the agency

 8  inspector general head that the complainant may submit to the

 9  Chief Inspector General and agency inspector general comments

10  on the final report within 10 20 days after of the date of the

11  report and that such comments will be attached to the final

12  report.

13         (7)  If the Chief Inspector General decides an

14  investigation should be conducted pursuant to paragraph

15  (5)(a), the Chief Inspector General shall either:

16         (a)  Promptly transmit to the appropriate head of the

17  state agency inspector general the information with respect to

18  which the determination to conduct an investigation was made,

19  and such agency inspector general head shall conduct an

20  investigation and submit to the Chief Inspector General a

21  final written report that sets forth the agency inspector

22  general's head's findings, conclusions, and recommendations;

23  or

24         (b)1.  Conduct an investigation with respect to the

25  information and any related matters; and

26         2.  Submit to the complainant within 60 days after the

27  date on which a determination to conduct an investigation is

28  made under paragraph (5)(a), a final written report that sets

29  forth the Chief Inspector General's findings, conclusions, and

30  recommendations, except as provided under subsection (11). The

31  complainant shall be advised in writing by the Chief Inspector

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 1  General that the complainant may submit to the Chief Inspector

 2  General comments on the final report within 10 20 days after

 3  of the date of the report and that such comments will be

 4  attached to the final report.

 5         (c)  The Chief Inspector General may require an agency

 6  inspector general or the employee designated as agency

 7  inspector general under subsection (1) head to conduct an

 8  investigation under paragraph (a) only if the information was

 9  transmitted to the Chief Inspector General by:

10         1.  An employee or former employee of, or an applicant

11  for employment with, the agency, or an employee or former

12  employee of the agency's independent contractor, affected by

13  that the information concerns; or

14         2.  An employee who obtained the information in

15  connection with the performance of the employee's duties and

16  responsibilities.

17         (8)  Final reports required under this section must be

18  reviewed and signed by the person responsible for conducting

19  the investigation (agency inspector general, employee

20  designated as agency inspector general under subsection (1)

21  agency head, or Chief Inspector General) and must include:

22         (a)  A summary of the information with respect to which

23  the investigation was initiated.

24         (b)  A description of the conduct of the investigation.

25         (c)  A summary of any evidence obtained from the

26  investigation.

27         (d)  A listing of any violation or apparent violation

28  of any law, rule, or regulation.

29         (e)  A description of any action taken or planned as a

30  result of the investigation, such as:

31  

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 1         1.  A change in an agency rule, regulation, or

 2  practice.

 3         2.  The restoration of an aggrieved employee.

 4         3.  A disciplinary action against an employee.

 5         4.  The referral to the Department of Law Enforcement

 6  of any evidence of a criminal violation.

 7         (9)(a)  A report required of the agency inspector

 8  general head under paragraph (7)(a) shall be submitted to the

 9  Chief Inspector General and the complainant within 60 days

10  after the agency inspector general head receives the complaint

11  from the Chief Inspector General, except as provided under

12  subsection (11).  The complainant shall be advised in writing

13  by the agency inspector general head that the complainant may

14  submit to the Chief Inspector General comments on the report

15  within 10 20 days after of the date of the report and that

16  such comments will be attached to the final report.

17         (b)  Upon receiving a final report required under this

18  section, the Chief Inspector General shall review the report

19  and determine whether the report contains the information

20  required by subsection (8).  If the report does not contain

21  the information required by subsection (8), the Chief

22  Inspector General shall determine why and note the reasons on

23  an addendum to the final report.

24         (c)  The Chief Inspector General shall transmit any

25  final report under this section, any comments provided by the

26  complainant, and any appropriate comments or recommendations

27  by the Chief Inspector General to the Governor, to the Joint

28  Legislative Auditing Committee, to the investigating agency,

29  and to the Chief Financial Officer.

30         (d)  If the Chief Inspector General does not receive

31  the report of the agency head within the time prescribed in

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 1  paragraph (a), the Chief Inspector General may conduct the

 2  investigation in accordance with paragraph (7)(b) or request

 3  that another agency inspector general conduct the

 4  investigation in accordance with subsection (6) and shall

 5  report the complaint to the Governor, to the Joint Legislative

 6  Auditing Committee, and to the investigating agency, together

 7  with a statement noting the failure of the agency inspector

 8  general head to file the required report.

 9         (10)  For any time period set forth in subsections (3),

10  (6), (7), and (9), such time period may be extended in writing

11  by the Chief Inspector General for good cause shown.

12         (11)  If an investigation under this section produces

13  evidence of a criminal violation, the report shall not be

14  transmitted to the complainant, and the agency head or agency

15  inspector general shall notify the Chief Inspector General and

16  the Department of Law Enforcement.

17         Section 4.  Subsection (1), paragraphs (b) and (c) of

18  subsection (2), and paragraphs (a), (d), (e), (h), (i), and

19  (j) of subsection (3) of section 112.31895, Florida Statutes,

20  are amended to read:

21         112.31895  Investigative procedures in response to

22  prohibited personnel actions.--

23         (1)(a)  If a disclosure under s. 112.3187 includes or

24  results in alleged retaliation by an employer, the employee or

25  former employee of, or applicant for employment with, a state

26  agency or the employee or former employee of an independent

27  contractor with any state agency who, as defined in s.

28  216.011, that is so affected may file a complaint alleging a

29  prohibited personnel action, which complaint must be made by

30  filing a written and signed complaint with the Office of the

31  Chief Inspector General in the Executive Office of the

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 1  Governor or the Florida Commission on Human Relations, no

 2  later than 60 days after the prohibited personnel action.

 3         (b)  Within 3 three working days after receiving a

 4  complaint under this section, the office or officer receiving

 5  the complaint shall acknowledge receipt of the complaint and

 6  provide copies of the complaint and any other preliminary

 7  information available concerning the disclosure of information

 8  under s. 112.3187 to each of the other parties named in

 9  paragraph (a), which parties shall each acknowledge receipt of

10  such copies to the complainant.

11         (2)  FACT FINDING.--The Florida Commission on Human

12  Relations shall:

13         (b)  Notify the complainant, within 15 days after

14  receiving a complaint, that the complaint has been received by

15  the commission department.

16         (c)  Within 90 days after receiving the complaint,

17  provide the agency head, the agency inspector general or, if

18  applicable, the independent contractor, and the complainant

19  with a fact-finding report that may include recommendations to

20  the parties or proposed resolution of the complaint.  The

21  fact-finding report shall be presumed admissible in any

22  subsequent or related administrative or judicial review.

23         (3)  CORRECTIVE ACTION AND TERMINATION OF

24  INVESTIGATION.--

25         (a)  The Florida Commission on Human Relations, in

26  accordance with this act and for the sole purpose of this act,

27  is empowered to:

28         1.  Receive and investigate complaints from employees

29  alleging retaliation by state agencies or from employees of

30  independent contractors with any state agency,as the term

31  "state agency" is defined in s. 216.011.

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 1         2.  Protect employees and applicants for employment

 2  with such state agencies or employees of independent

 3  contractors from prohibited personnel practices under s.

 4  112.3187.

 5         3.  Petition for stays and petition for corrective

 6  actions, including, but not limited to, temporary

 7  reinstatement.

 8         4.  Recommend disciplinary proceedings pursuant to

 9  investigation and appropriate agency rules and procedures.

10         5.  Coordinate with the Chief Inspector General in the

11  Executive Office of the Governor and the Florida Commission on

12  Human Relations to receive, review, and forward to appropriate

13  agencies, legislative entities, or the Department of Law

14  Enforcement disclosures of a violation of any law, rule, or

15  regulation, or disclosures of gross mismanagement, gross

16  misconduct malfeasance, misfeasance, nonfeasance, gross

17  neglect of duty, or gross waste of public funds.

18         6.  Review rules pertaining to personnel matters issued

19  or proposed by the Department of Management Services, the

20  Public Employees Relations Commission, and other agencies,

21  and, if the Florida Commission on Human Relations finds that

22  any rule or proposed rule, on its face or as implemented,

23  requires the commission of a prohibited personnel practice,

24  provide a written comment to the appropriate agency.

25         7.  Investigate, request assistance from other

26  governmental entities, and, if appropriate, bring actions

27  concerning, allegations of retaliation by state agencies or

28  independent contractors of state agencies under subparagraph

29  1.

30         8.  Administer oaths, examine witnesses, take

31  statements, issue subpoenas, order the taking of depositions,

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 1  order responses to written interrogatories, and make

 2  appropriate motions to limit discovery, pursuant to

 3  investigations under subparagraph 1.

 4         9.  Intervene or otherwise participate, as a matter of

 5  right, in any appeal or other proceeding arising under this

 6  section before the Public Employees Relations Commission or

 7  any other appropriate agency, except that the Florida

 8  Commission on Human Relations must comply with the rules of

 9  the commission or other agency and may not seek corrective

10  action or intervene in an appeal or other proceeding without

11  the consent of the person protected under ss.

12  112.3187-112.31895.

13         10.  Conduct an investigation, in the absence of an

14  allegation, to determine whether reasonable grounds exist to

15  believe that a prohibited action or a pattern of prohibited

16  action has occurred, is occurring, or is to be taken.

17         (d)  If the Florida Commission on Human Relations is

18  unable to conciliate a complaint within 60 days after receipt

19  of the fact-finding report, the Florida Commission on Human

20  Relations shall terminate the investigation.  Upon termination

21  of any investigation, the Florida Commission on Human

22  Relations shall notify the complainant and the agency head,

23  the agency inspector general, and, if applicable, the

24  independent contractor of the termination of the

25  investigation, providing a summary of relevant facts found

26  during the investigation and the reasons for terminating the

27  investigation.  A written statement under this paragraph is

28  presumed admissible as evidence in any judicial or

29  administrative proceeding but is not admissible without the

30  consent of the complainant.

31  

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 1         (e)1.  The Florida Commission on Human Relations may

 2  request an agency, independent contractor, or circuit court to

 3  order a stay, on such terms as the court requires, of any

 4  personnel action for 45 days if the Florida Commission on

 5  Human Relations determines that reasonable grounds exist to

 6  believe that a prohibited personnel action has occurred, is

 7  occurring, or is to be taken.  The Florida Commission on Human

 8  Relations may request that such stay be extended for

 9  appropriate periods of time.

10         2.  If, in connection with any investigation, the

11  Florida Commission on Human Relations determines that

12  reasonable grounds exist to believe that a prohibited action

13  has occurred, is occurring, or is to be taken which requires

14  corrective action, the Florida Commission on Human Relations

15  shall report the determination together with any findings or

16  recommendations to the agency head, the agency inspector

17  general, and if applicable, the independent contractor and may

18  report that determination and those findings and

19  recommendations to the Governor and the Chief Financial

20  Officer. The Florida Commission on Human Relations may include

21  in the report recommendations for corrective action to be

22  taken.

23         3.  If, after 20 days, the agency does not implement

24  the recommended action, the Florida Commission on Human

25  Relations shall terminate the investigation and notify the

26  complainant of the right to appeal under subsection (4), or

27  may petition the agency or independent contractor for

28  corrective action under this subsection.

29         4.  If the Florida Commission on Human Relations finds,

30  in consultation with the individual subject to the prohibited

31  action, that the agency or independent contractor has

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 1  implemented the corrective action, the commission shall file

 2  such finding with the agency head, agency inspector general,

 3  and, if applicable, independent contractor, together with any

 4  written comments that the individual provides, and terminate

 5  the investigation.

 6         (h)  If, in connection with any investigation under

 7  this section, the Florida Commission on Human Relations

 8  determines that reasonable grounds exist to believe that a

 9  violation of a law, rule, or regulation has occurred, other

10  than a criminal violation or a prohibited action under this

11  section, the commission may report such violation to the head

12  of the agency, inspector general of the agency, and, if

13  applicable, the independent contractor involved. Within 30

14  days after the agency receives the report, the agency head,

15  agency inspector general, and, if applicable, independent

16  contractor shall provide to the commission a certification

17  that states that the head of the agency or independent

18  contractor has personally reviewed the report and indicates

19  what action has been or is to be taken and when the action

20  will be completed.

21         (i)  During any investigation under this section,

22  disciplinary action may not be taken against any employee of a

23  state agency or employee of an independent contractor of a

24  state agency, as the term "state agency" is defined in s.

25  216.011, for reporting an alleged prohibited personnel action

26  that is under investigation, or for reporting any related

27  activity, or against any employee for participating in an

28  investigation without notifying the Florida Commission on

29  Human Relations.

30         (j)  The Florida Commission on Human Relations may also

31  petition for an award of reasonable attorney's fees and

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 1  expenses from a state agency or from an independent contractor

 2  of a state agency, as the term "state agency" is defined

 3  216.011, pursuant to s. 112.3187(9).

 4         Section 5.  This act shall take effect July 1, 2006.

 5  

 6            *****************************************

 7                          SENATE SUMMARY

 8    Revises a variety of provisions in the Whistle-blower's
      Act, including definitions, extension of the act's
 9    coverage to employees and former employees of independent
      contractors having contracts with state agencies,
10    investigations of information and of allegations of
      prohibited retaliation, and transfer of certain
11    responsibilities from agency heads to agency inspectors
      general or other agency employees.(See bill for details.)
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