Florida Senate - 2020                                     SB 450
       
       
        
       By Senator Brandes
       
       
       
       
       
       24-00448A-20                                           2020450__
    1                        A bill to be entitled                      
    2         An act relating to the Whistleblower’s Act; amending
    3         s. 112.3187, F.S.; revising a short title; revising
    4         legislative intent; revising, reordering, and
    5         providing definitions; revising the actions that an
    6         agency or independent contractor is prohibited from
    7         taking against an employee who participates in
    8         protected activity or discloses certain information;
    9         specifying that whistleblower remedies and protections
   10         do not apply to certain persons; revising requirements
   11         related to the disclosure of information and methods
   12         of reporting the information; revising requirements
   13         related to remedies; revising affirmative defenses;
   14         amending s. 112.3188, F.S.; authorizing additional
   15         persons to disclose confidential and exempt
   16         information; providing for construction; conforming
   17         cross-references to changes made by the act; amending
   18         s. 112.3189, F.S.; revising applicability of
   19         provisions relating to investigative procedures upon
   20         receipt of whistleblower information; revising powers
   21         and responsibilities of the Chief Inspector General
   22         and agency inspectors general; revising reporting
   23         requirements; reordering and amending s. 112.31895,
   24         F.S.; revising investigative procedures in response to
   25         retaliatory actions; revising complaint requirements;
   26         revising fact-finding responsibilities of the Florida
   27         Commission on Human Relations; revising commission
   28         powers and responsibilities; providing requirements
   29         for the termination of an investigation; amending ss.
   30         14.32, 20.055, 112.31901, and 760.06, F.S.; conforming
   31         provisions and cross-references to changes made by the
   32         act; providing an effective date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Section 112.3187, Florida Statutes, is amended
   37  to read:
   38         112.3187 Retaliatory Adverse action against employee for
   39  disclosing information of specified nature prohibited; employee
   40  remedy and relief.—
   41         (1) SHORT TITLE.—Sections 112.3187-112.31895 may be cited
   42  as the “Florida Public Whistleblower’s Whistle-blower’s Act.”
   43         (2) LEGISLATIVE INTENT.—It is the intent of the Legislature
   44  to prevent agencies or independent contractors from taking
   45  retaliatory action against an employee who reports to an
   46  appropriate agency or supervisory official violations of law on
   47  the part of a public employer or independent contractor which
   48  that create a substantial and specific danger to the public’s
   49  health, safety, or welfare. It is further the intent of the
   50  Legislature to prevent agencies or independent contractors from
   51  taking retaliatory action against any person who discloses
   52  information to an appropriate agency or supervisory official
   53  alleging acts of gross mismanagement, gross malfeasance, gross
   54  misfeasance, gross misconduct improper use of governmental
   55  office, gross waste of public funds, Medicaid fraud or program
   56  abuse, or any other abuse or gross neglect of duty on the part
   57  of an agency, public officer, or employee.
   58         (3) DEFINITIONS.—As used in this act, unless otherwise
   59  specified, the following words or terms shall have the meanings
   60  indicated:
   61         (a) “Agency” means any state, regional, county, local, or
   62  municipal government entity, whether executive, judicial, or
   63  legislative; any official, officer, department, division,
   64  bureau, commission, authority, or political subdivision therein;
   65  the Citizens Property Insurance Corporation; the Florida
   66  Commission on Human Relations; or any public school, community
   67  college, or state university.
   68         (b) “Employee” means a person who performs services for,
   69  and under the control and direction of, or contracts with, an
   70  agency or independent contractor for wages or other
   71  remuneration. The term includes a current or former employee or
   72  an applicant for employment.
   73         (h)(c) “Retaliatory Adverse personnel action” means the
   74  discharge, suspension, transfer, or demotion of an any employee
   75  or the withholding of bonuses, the reduction in salary or
   76  benefits, or any other adverse action taken against an employee
   77  within the terms and conditions of employment by an agency or
   78  independent contractor which may dissuade a reasonable employee
   79  from participating in any protected activity described in
   80  subparagraphs (g)1. and 2.
   81         (c)“Gross malfeasance” or “gross misconduct” means a
   82  willful transgression of law or established rule which is of
   83  such a degree or recurrence as to show a substantial disregard
   84  of the employer’s interests or the employee’s duties and
   85  obligations to the public.
   86         (d) “Gross misfeasance” means misconduct or wrongdoing by a
   87  public employee of such severity or frequency as to show
   88  substantial disregard of the state’s or state contractor’s
   89  interests or the employee’s duties and obligations to the
   90  public.
   91         (f)(d) “Independent contractor” means a person, other than
   92  an agency, engaged in any business and who enters into a
   93  contract, including a provider agreement, with an agency.
   94         (e)(e) “Gross mismanagement” means a continuous pattern of
   95  managerial abuses, wrongful or arbitrary and capricious actions,
   96  or fraudulent or criminal conduct which may have a substantial
   97  adverse economic impact.
   98         (g)“Protected activity” means any of the following:
   99         1.The reporting to an appropriate agency or supervisory
  100  official of violations of law on the part of a public employer
  101  or independent contractor which create a substantial and
  102  specific danger to the public’s health, safety, or welfare.
  103         2.The disclosure of information to an appropriate agency
  104  or supervisory official alleging acts of gross mismanagement,
  105  gross malfeasance, gross misfeasance, gross misconduct, gross
  106  waste of public funds, Medicaid fraud or program abuse, or gross
  107  neglect of duty on the part of an agency, a public officer, or
  108  an employee.
  109         3.Participation in an investigation, hearing, or other
  110  inquiry by an agency or federal government entity pursuant to
  111  this section.
  112         4.Refusal to participate in any retaliatory action
  113  prohibited by this section.
  114         (i)“State agency” means any official, officer, commission,
  115  board, authority, council, committee, or department of the
  116  executive branch of state government.
  117         (4) ACTIONS PROHIBITED.—
  118         (a) An agency or independent contractor may shall not
  119  dismiss, discipline, or take any other retaliatory adverse
  120  personnel action against an employee for participating in
  121  protected activity or for disclosing information pursuant to
  122  subsection (6) the provisions of this section.
  123         (b) An agency or independent contractor shall not take any
  124  adverse action that affects the rights or interests of a person
  125  in retaliation for the person’s disclosure of information under
  126  this section.
  127         (c)The provisions of This subsection is shall not be
  128  applicable when an employee or person discloses information
  129  known, or which reasonably should be known, by the employee or
  130  person to be false.
  131         (c)A remedy or protection under ss. 112.3187-112.31895
  132  does not apply to:
  133         1.A person who has committed, or intentionally
  134  participated in committing, a violation or suspected violation
  135  for which protection under ss. 112.3187-112.31895 is being
  136  sought.
  137         2.A person while he or she is under the care, custody, or
  138  control of the state correctional system, or after release from
  139  the care, custody, or control of the state correctional system,
  140  with respect to circumstances that occurred during any period of
  141  incarceration.
  142         (5) NATURE OF INFORMATION DISCLOSED.—
  143         (a) The information disclosed by employees and persons
  144  under this section must include:
  145         1.(a) Any violation or suspected violation of any federal,
  146  state, or local law, rule, or regulation committed by an
  147  employee or agent of an agency or independent contractor which
  148  creates and presents a substantial and specific danger to the
  149  public’s health, safety, or welfare; or.
  150         2.(b) Any act or reasonably suspected act of gross
  151  mismanagement, gross malfeasance, gross misfeasance, gross
  152  misconduct, gross waste of public funds, suspected or actual
  153  Medicaid fraud or program abuse, or gross neglect of duty
  154  committed by an employee or agent of an agency or independent
  155  contractor.
  156         (b)Information disclosed by an employee or a former
  157  employee of an independent contractor must relate to provisions
  158  of the contract between the agency and the independent
  159  contractor.
  160         (6) TO WHOM INFORMATION DISCLOSED AND METHODS OF
  161  REPORTING.—
  162         (a)Information disclosed under this section alleging an
  163  action on the part of a public employer or an independent
  164  contractor which creates a substantial and specific danger to
  165  the public’s health, safety, or welfare, or alleging gross waste
  166  of public funds or any other abuse or gross neglect of duty on
  167  the part of an agency, a public officer, or an employee, must be
  168  disclosed to the Chief Inspector General, agency inspector
  169  general or employee designated as agency inspector general under
  170  s. 112.3189(1), inspectors general under s. 20.055, or the
  171  Florida Commission on Human Relations.
  172         (b)The information disclosed by an employee or a person
  173  pursuant to this subsection or subsection (5) must be submitted
  174  in the form of a written and signed complaint to one of the
  175  following:
  176         1.The employee’s supervisory official, the Chief Inspector
  177  General as defined in s. 14.32(1), the agency inspector general,
  178  the employee designated as agency inspector general under s.
  179  112.3189(1), inspectors general under s. 20.055, or to the
  180  Florida Commission on Human Relations. Employees and independent
  181  contractors of the Chief Inspector General, the employee
  182  designated as an agency inspector general, or the Florida
  183  Commission on Human Relations must meet the same requirements as
  184  others affected by this section; or
  185         2.An agency or a federal governmental entity that has
  186  authority to investigate, police, manage, or otherwise remedy
  187  the violation or act.
  188         (c)If a disclosure is related to a local governmental
  189  entity, including any regional, county, or municipal entity;
  190  special district; community college district; or school
  191  district, or any political subdivision thereof, the information
  192  must be disclosed to a chief executive officer, as defined in s.
  193  447.203(9), or other appropriate local official.
  194         (d)Information disclosed to any other person or entity
  195  does not qualify the employee or person for protection under
  196  this section The information disclosed under this section must
  197  be disclosed to any agency or federal government entity having
  198  the authority to investigate, police, manage, or otherwise
  199  remedy the violation or act, including, but not limited to, the
  200  Office of the Chief Inspector General, an agency inspector
  201  general or the employee designated as agency inspector general
  202  under s. 112.3189(1) or inspectors general under s. 20.055, the
  203  Florida Commission on Human Relations, and the whistle-blower’s
  204  hotline created under s. 112.3189. However, for disclosures
  205  concerning a local governmental entity, including any regional,
  206  county, or municipal entity, special district, community college
  207  district, or school district or any political subdivision of any
  208  of the foregoing, the information must be disclosed to a chief
  209  executive officer as defined in s. 447.203(9) or other
  210  appropriate local official.
  211         (7)EMPLOYEES AND PERSONS PROTECTED.—This section protects
  212  employees and persons who disclose information on their own
  213  initiative in a written and signed complaint; who are requested
  214  to participate in an investigation, hearing, or other inquiry
  215  conducted by any agency or federal government entity; who refuse
  216  to participate in any adverse action prohibited by this section;
  217  or who initiate a complaint through the whistle-blower’s hotline
  218  or the hotline of the Medicaid Fraud Control Unit of the
  219  Department of Legal Affairs; or employees who file any written
  220  complaint to their supervisory officials or employees who submit
  221  a complaint to the Chief Inspector General in the Executive
  222  Office of the Governor, to the employee designated as agency
  223  inspector general under s. 112.3189(1), or to the Florida
  224  Commission on Human Relations. The provisions of this section
  225  may not be used by a person while he or she is under the care,
  226  custody, or control of the state correctional system or, after
  227  release from the care, custody, or control of the state
  228  correctional system, with respect to circumstances that occurred
  229  during any period of incarceration. No remedy or other
  230  protection under ss. 112.3187-112.31895 applies to any person
  231  who has committed or intentionally participated in committing
  232  the violation or suspected violation for which protection under
  233  ss. 112.3187-112.31895 is being sought.
  234         (7)(8) REMEDIES.—
  235         (a) Any employee of or applicant for employment with any
  236  state agency or an independent contractor of a state agency, as
  237  the term “state agency” is defined in subsection (3) s. 216.011,
  238  who is discharged, disciplined, or subjected to other
  239  retaliatory adverse personnel action, or denied employment,
  240  because he or she engaged in an activity protected by this
  241  section may file a complaint with, which complaint must be made
  242  in accordance with s. 112.31895. Upon receipt of notice from the
  243  Florida Commission on Human Relations. The complaint must be
  244  made in accordance with the requirements of s. 112.31895 of
  245  termination of the investigation, the complainant may elect to
  246  pursue the administrative remedy available under s. 112.31895 or
  247  bring a civil action within 180 days after receipt of the
  248  notice.
  249         (b) Within 60 days after the action prohibited by this
  250  section, any local public employee protected by this section may
  251  file a complaint with the appropriate local governmental
  252  authority, if that authority has established by ordinance an
  253  administrative procedure for handling such complaints or has
  254  contracted with the Division of Administrative Hearings under s.
  255  120.65 to conduct hearings under this section. The
  256  administrative procedure created by ordinance must provide for
  257  the complaint to be heard by a panel of impartial persons
  258  appointed by the appropriate local governmental authority. Upon
  259  hearing the complaint, the panel must make findings of fact and
  260  conclusions of law for a final decision by the local
  261  governmental authority. Within 180 days after entry of a final
  262  decision by the local governmental authority, the public
  263  employee who filed the complaint may bring a civil action in any
  264  court of competent jurisdiction. If the local governmental
  265  authority has not established an administrative procedure by
  266  ordinance or contract, a local public employee may, within 180
  267  days after the action prohibited by this section, bring a civil
  268  action in a court of competent jurisdiction. For the purpose of
  269  this paragraph, the term “local governmental authority” includes
  270  any regional, county, or municipal entity, special district,
  271  community college district, or school district or any political
  272  subdivision of any of the foregoing.
  273         (c) Any other person protected by this section may, after
  274  exhausting all available contractual or administrative remedies,
  275  bring a civil action in any court of competent jurisdiction
  276  within 180 days after the action prohibited by this section.
  277         (8)(9) RELIEF.—In any action brought under this section,
  278  the relief must include the following:
  279         (a) Reinstatement of the employee to the same position held
  280  before the retaliatory adverse action was commenced, or to an
  281  equivalent position or reasonable front pay as alternative
  282  relief.
  283         (b) Reinstatement of the employee’s full fringe benefits
  284  and seniority rights, as appropriate.
  285         (c) Compensation, if appropriate, for lost wages, benefits,
  286  or other lost remuneration caused by the retaliatory adverse
  287  action.
  288         (d) Payment of reasonable costs, including attorney
  289  attorney’s fees, to a substantially prevailing employee, or to
  290  the prevailing employer if the employee filed a frivolous action
  291  in bad faith.
  292         (e) Issuance of an injunction, if appropriate, by a court
  293  of competent jurisdiction.
  294         (f) Temporary reinstatement to the employee’s former
  295  position or to an equivalent position, pending the final outcome
  296  on the complaint, if an employee complains of being discharged
  297  in retaliation for a protected disclosure and if a court of
  298  competent jurisdiction or the Florida Commission on Human
  299  Relations, as applicable under s. 112.31895, determines that the
  300  disclosure was not made in bad faith or for a wrongful purpose
  301  or occurred after an agency’s initiation of a personnel action
  302  against the employee which includes documentation of the
  303  employee’s violation of a disciplinary standard or performance
  304  deficiency. This paragraph does not apply to an employee of a
  305  municipality.
  306         (9)(10)AFFIRMATIVE DEFENSES.—It shall be an affirmative
  307  defense to any action brought pursuant to this section that:
  308         (a) The retaliatory adverse action was predicated upon
  309  grounds other than, and would have been taken absent, the
  310  employee’s or person’s exercise of rights protected by this
  311  section;
  312         (b)The employee or person disclosed information that was
  313  known, or reasonably should have been known, to be false; or
  314         (c) The employee or person disclosed information that was
  315  substantially the same as information publicly disclosed:
  316         1. In a criminal, civil, or administrative hearing in which
  317  the state is a party;
  318         2. In a legislative, administrative, inspector general, or
  319  other state report; a hearing; an audit; or an investigation; or
  320         3. By the news media.
  321         (10)(11) EXISTING RIGHTS.—Sections 112.3187-112.31895 do
  322  not diminish the rights, privileges, or remedies of an employee
  323  under any other law or rule or under any collective bargaining
  324  agreement or employment contract; however, the election of
  325  remedies in s. 447.401 also applies to whistleblower whistle
  326  blower actions.
  327         Section 2. Paragraphs (b) and (c) of subsection (2) of
  328  section 112.3188, Florida Statutes, are amended, and subsection
  329  (3) is added to that section, to read:
  330         112.3188 Confidentiality of information given to the Chief
  331  Inspector General, internal auditors, inspectors general, local
  332  chief executive officers, or other appropriate local officials.—
  333         (2)
  334         (b) All information received by a local chief executive
  335  officer or appropriate local official or information produced or
  336  derived from fact-finding or investigations conducted pursuant
  337  to the administrative procedure established by ordinance by a
  338  local government as authorized by s. 112.3187(7)(b) s.
  339  112.3187(8)(b) is confidential and exempt from s. 119.07(1) and
  340  s. 24(a), Art. I of the State Constitution, if the information
  341  is being received or derived from allegations as set forth in
  342  paragraph (1)(a) or paragraph (1)(b) and an investigation is
  343  active.
  344         (c) Information deemed confidential under this section may
  345  be disclosed by the Chief Inspector General, agency inspector
  346  general, chief internal auditor, a member or an employee of the
  347  Florida Commission on Human Relations, local chief executive
  348  officer, or other appropriate local official receiving the
  349  information if the recipient determines that the disclosure of
  350  the information is absolutely necessary to prevent a substantial
  351  and specific danger to the public’s health, safety, or welfare
  352  or to prevent the imminent commission of a crime. Information
  353  disclosed under this subsection may be disclosed only to persons
  354  who are in a position to prevent the danger to the public’s
  355  health, safety, or welfare or to prevent the imminent commission
  356  of a crime based on the disclosed information.
  357         1. An investigation is active under this section if:
  358         a. It is an ongoing investigation or inquiry or collection
  359  of information and evidence and is continuing with a reasonable,
  360  good faith anticipation of resolution in the foreseeable future;
  361  or
  362         b. All or a portion of the matters under investigation or
  363  inquiry are active criminal intelligence information or active
  364  criminal investigative information as defined in s. 119.011.
  365         2. Notwithstanding sub-subparagraph 1.a., an investigation
  366  ceases to be active when:
  367         a. The written report required under s. 112.3189(9) has
  368  been sent by the Chief Inspector General to the recipients named
  369  in s. 112.3189(9);
  370         b. It is determined that an investigation is not necessary
  371  under s. 112.3189(5); or
  372         c. A final decision has been rendered by the local
  373  government or by the Division of Administrative Hearings
  374  pursuant to s. 112.3187(7)(b) s. 112.3187(8)(b).
  375         3. Notwithstanding paragraphs (a), (b), and this paragraph,
  376  information or records received or produced under this section
  377  which are otherwise confidential under law or exempt from
  378  disclosure under chapter 119 retain their confidentiality or
  379  exemption.
  380         4. Any person who willfully and knowingly discloses
  381  information or records made confidential under this subsection
  382  commits a misdemeanor of the first degree, punishable as
  383  provided in s. 775.082 or s. 775.083.
  384         (3) The provisions of this section which provide for the
  385  confidentiality of specified information supersede the rights,
  386  privileges, or remedies of an employee granted under any other
  387  law or rule or under any collective bargaining agreement or
  388  employment contract which are in conflict.
  389         Section 3. Section 112.3189, Florida Statutes, is amended
  390  to read:
  391         112.3189 Investigative procedures upon receipt of
  392  whistleblower whistle-blower information from certain state and
  393  state agency independent contractor employees.—
  394         (1) This section only applies to the disclosure of
  395  information as described in s. 112.3187(5) by an employee or a
  396  former employee of, or an applicant for employment with, a state
  397  agency, as the term “state agency” is defined in s. 112.3187(3),
  398  or by an employee or a former employee of a state agency’s
  399  independent contractor s. 216.011, to the Office of the Chief
  400  Inspector General of the Executive Office of the Governor or to
  401  the agency inspector general. If an agency does not have an
  402  inspector general, the head of the state agency, as defined in
  403  s. 112.3187(3) s. 216.011, shall designate an employee, in
  404  consultation with the Chief Inspector General, who meets the
  405  requirements provided in s. 20.055(4) to receive information
  406  described in s. 112.3187(5). For purposes of this section and s.
  407  112.3188 only, the employee designated by the head of the state
  408  agency is shall be deemed an agency inspector general.
  409         (2) To facilitate the receipt of information described in
  410  subsection (1), the Chief Inspector General shall periodically
  411  maintain an in-state toll-free whistle-blower’s hotline and
  412  shall circulate among the various state agencies an advisory for
  413  all employees which indicates how to file a whistleblower
  414  complaint the existence of the toll-free number and its purpose
  415  and provides an address to which written whistle-blower
  416  information may be forwarded.
  417         (3) When a person alleges information described in s.
  418  112.3187(5), the Chief Inspector General or agency inspector
  419  general actually receiving such information shall, within 20
  420  days of receiving such information, determine:
  421         (a) Whether the information disclosed is the type of
  422  information described in s. 112.3187(5).
  423         (b) Whether the source of the information is a person who
  424  is an employee or former employee of, or an applicant for
  425  employment with, a state agency, as defined in s. 112.3187(3),
  426  or an employee or a former employee of a state agency’s
  427  independent contractor s. 216.011.
  428         (c) Whether the information actually disclosed demonstrates
  429  reasonable cause to suspect that an employee or agent of an
  430  agency or independent contractor has violated any federal,
  431  state, or local law, rule, or regulation, thereby creating and
  432  presenting a substantial and specific danger to the public’s
  433  health, safety, or welfare, or has committed an act of gross
  434  mismanagement, gross misconduct, gross malfeasance, gross
  435  misfeasance, gross waste of public funds, Medicaid fraud or
  436  program abuse, or gross neglect of duty.
  437         (4) If the Chief Inspector General or agency inspector
  438  general under subsection (3) determines that the information
  439  disclosed is not the type of information described in s.
  440  112.3187(5), or that the source of the information is not a
  441  person who is an employee or former employee of, or an applicant
  442  for employment with, a state agency, as defined in s.
  443  112.3187(3), or an employee or a former employee of a state
  444  agency’s independent contractor s. 216.011, or that the
  445  information disclosed does not demonstrate reasonable cause to
  446  suspect that an employee or agent of an agency or independent
  447  contractor has violated any federal, state, or local law, rule,
  448  or regulation, thereby creating and presenting a substantial and
  449  specific danger to the public’s health, safety, or welfare, or
  450  has committed an act of gross mismanagement, gross misconduct,
  451  gross malfeasance, gross misfeasance, gross waste of public
  452  funds, Medicaid fraud or program abuse, or gross neglect of
  453  duty, the Chief Inspector General or agency inspector general
  454  shall notify the complainant of such fact and copy and return,
  455  upon request of the complainant, any documents and other
  456  materials that were provided by the complainant.
  457         (5)(a) If the Chief Inspector General or agency inspector
  458  general under subsection (3) determines that the information
  459  disclosed is the type of information described in s.
  460  112.3187(5), that the source of the information is from a person
  461  who is an employee or a former employee of, or an applicant for
  462  employment with, a state agency, as defined in s. 112.3187(3),
  463  or an employee or a former employee of a state agency’s
  464  independent contractor s. 216.011, and that the information
  465  disclosed demonstrates reasonable cause to suspect that an
  466  employee or agent of an agency or independent contractor has
  467  violated any federal, state, or local law, rule, or regulation,
  468  thereby creating a substantial and specific danger to the
  469  public’s health, safety, or welfare, or has committed an act of
  470  gross mismanagement, gross misconduct, gross malfeasance, gross
  471  misfeasance, gross waste of public funds, Medicaid fraud or
  472  program abuse, or gross neglect of duty on the part of an
  473  agency, a public officer, or an employee, the Chief Inspector
  474  General or agency inspector general making such determination
  475  shall then conduct an investigation, unless the Chief Inspector
  476  General or the agency inspector general determines, within 30
  477  days after receiving the allegations from the complainant, that
  478  such investigation is unnecessary. For purposes of this
  479  subsection, the Chief Inspector General or the agency inspector
  480  general shall consider the following factors, but is not limited
  481  to only the following factors, when deciding whether the
  482  investigation is not necessary:
  483         (a)1. The gravity of the disclosed information compared to
  484  the time and expense of an investigation.
  485         (b)2. The potential for an investigation to yield
  486  recommendations that will make state government more efficient
  487  and effective.
  488         (c)3. The benefit to state government to have a final
  489  report on the disclosed information.
  490         (d)4. Whether the alleged whistleblower whistle-blower
  491  information primarily concerns personnel practices that may be
  492  investigated under chapter 110.
  493         (e)5. Whether another agency may be conducting an
  494  investigation and whether any investigation under this section
  495  could be duplicative.
  496         (f)6. The time that has elapsed between the alleged event
  497  and the disclosure of the information.
  498         (b)If the Chief Inspector General or agency inspector
  499  general determines under paragraph (a) that an investigation is
  500  not necessary, the Chief Inspector General or agency inspector
  501  general making such determination shall:
  502         1.Copy and return, upon request of the complainant, any
  503  documents and other materials provided by the individual who
  504  made the disclosure.
  505         2.Inform in writing the head of the state agency for the
  506  agency inspector general making the determination that the
  507  investigation is not necessary and the individual who made the
  508  disclosure of the specific reasons why an investigation is not
  509  necessary and why the disclosure will not be further acted on
  510  under this section.
  511         (6) The agency inspector general may conduct an
  512  investigation pursuant to subsection (5) paragraph (5)(a) only
  513  if the person transmitting information to the agency inspector
  514  general is an employee or a former employee of, or an applicant
  515  for employment with, the agency inspector general’s agency, or
  516  is an employee or a former employee of the state agency’s
  517  independent contractor. The agency inspector general shall:
  518         (a) Conduct an investigation with respect to the
  519  information and any related matters.
  520         (b) Submit to the complainant and the Chief Inspector
  521  General, within 90 60 days after the date on which a
  522  determination to conduct an investigation is made under
  523  subsection (5) paragraph (5)(a), a final written report that
  524  sets forth the agency inspector general’s findings, conclusions,
  525  and recommendations, except as provided under subsection (11).
  526  The complainant shall be advised in writing by the agency
  527  inspector general head that the complainant may submit to the
  528  Chief Inspector General and agency inspector general comments on
  529  the final report within 10 20 days of the date of the report and
  530  that such comments will be attached to the final report.
  531         (7) If the Chief Inspector General decides an investigation
  532  should be conducted pursuant to subsection (5) paragraph (5)(a),
  533  the Chief Inspector General shall either:
  534         (a) Promptly transmit to the appropriate head of the state
  535  agency inspector general the information with respect to which
  536  the determination to conduct an investigation was made, and such
  537  agency inspector general head shall conduct an investigation and
  538  submit to the Chief Inspector General a final written report
  539  that sets forth the agency inspector general’s head’s findings,
  540  conclusions, and recommendations; or
  541         (b)1. Conduct an investigation with respect to the
  542  information and any related matters; and
  543         2. Submit to the complainant, within 90 60 days after the
  544  date on which a determination to conduct an investigation is
  545  made under subsection (5) paragraph (5)(a), a final written
  546  report that sets forth the Chief Inspector General’s findings,
  547  conclusions, and recommendations, except as provided under
  548  subsection (11). The complainant shall be advised in writing by
  549  the Chief Inspector General that the complainant may submit to
  550  the Chief Inspector General comments on the final report within
  551  10 20 days of the date of the report and that such comments will
  552  be attached to the final report.
  553         (c) The Chief Inspector General may require an agency
  554  inspector general or the employee designated as agency inspector
  555  general under subsection (1) head to conduct an investigation
  556  under paragraph (a) only if the information was transmitted to
  557  the Chief Inspector General by:
  558         1. An employee or a former employee of, or an applicant for
  559  employment with, the agency, or an employee or a former employee
  560  of the state agency’s independent contractor, that the
  561  information concerns; or
  562         2. An employee who obtained the information in connection
  563  with the performance of the employee’s duties and
  564  responsibilities.
  565         (8) Final reports required under this section must be
  566  reviewed and signed by the person responsible for conducting the
  567  investigation (agency inspector general, employee designated as
  568  agency inspector general under subsection (1) agency head, or
  569  Chief Inspector General) and must include:
  570         (a) A summary of the information with respect to which the
  571  investigation was initiated.
  572         (b) A description of the conduct of the investigation.
  573         (c) A summary of any evidence obtained from the
  574  investigation.
  575         (d) A listing of any violation or apparent violation of any
  576  law, rule, or regulation.
  577         (e) A description of any action taken or planned as a
  578  result of the investigation, such as:
  579         1. A change in an agency rule, regulation, or practice.
  580         2. The restoration of an aggrieved employee.
  581         3. A disciplinary action against an employee.
  582         4. The referral to the Department of Law Enforcement of any
  583  evidence of a criminal violation.
  584         (9)(a) A report required of the agency inspector general
  585  head under paragraph (7)(a) shall be submitted to the Chief
  586  Inspector General and the complainant within 90 60 days after
  587  the agency inspector general head receives the complaint from
  588  the Chief Inspector General, except as provided under subsection
  589  (11). The complainant shall be advised in writing by the agency
  590  inspector general head that the complainant may submit to the
  591  Chief Inspector General comments on the report within 10 20 days
  592  of the date of the report and that such comments will be
  593  attached to the final report.
  594         (b) Upon receiving a final report required under this
  595  section, the Chief Inspector General shall review the report and
  596  determine whether the report contains the information required
  597  by subsection (8). If the report does not contain the
  598  information required by subsection (8), the Chief Inspector
  599  General shall determine why and note the reasons on an addendum
  600  to the final report.
  601         (c) The Chief Inspector General shall transmit any final
  602  report under this section, any comments provided by the
  603  complainant, and any appropriate comments or recommendations by
  604  the Chief Inspector General to the Governor, the Legislative
  605  Auditing Committee, the investigating agency, and the Chief
  606  Financial Officer.
  607         (d) If the Chief Inspector General does not receive the
  608  report of the agency inspector general head within the time
  609  prescribed in paragraph (a), the Chief Inspector General may
  610  conduct the investigation in accordance with paragraph (7)(b) or
  611  request that another agency inspector general conduct the
  612  investigation in accordance with subsection (6) and shall report
  613  the complaint to the Governor, to the Joint Legislative Auditing
  614  Committee, and to the investigating agency, together with a
  615  statement noting the failure of the agency inspector general
  616  head to file the required report.
  617         (10) For any time period set forth in subsections (3), (6),
  618  (7), and (9), such time period may be extended in writing by the
  619  Chief Inspector General for good cause shown.
  620         (11) If an investigation under this section produces
  621  evidence of a criminal violation, the report may shall not be
  622  transmitted to the complainant, and the agency head or agency
  623  inspector general shall notify the Chief Inspector General and
  624  the Department of Law Enforcement.
  625         Section 4. Section 112.31895, Florida Statutes, is
  626  reordered and amended to read:
  627         112.31895 Investigative procedures in response to
  628  retaliatory prohibited personnel actions.—
  629         (1) COMPLAINT PROCEDURES.—
  630         (a) If a disclosure or other protected activity under s.
  631  112.3187 includes or results in alleged retaliatory action
  632  retaliation by an employer, the employee or former employee of,
  633  or applicant for employment with, a state agency, as defined in
  634  s. 112.3187(3), or the employee or former employee of a state
  635  agency’s independent contractor who s. 216.011, that is so
  636  affected may file a complaint alleging a retaliatory prohibited
  637  personnel action. The, which complaint must be made by filing a
  638  written and signed complaint with the Office of the Chief
  639  Inspector General in the Executive Office of the Governor or the
  640  Florida Commission on Human Relations, no later than 90 60 days
  641  after the retaliatory prohibited personnel action.
  642         (b) Within 5 three working days after receiving a complaint
  643  under this section, the office or officer receiving the
  644  complaint shall acknowledge receipt of the complaint and provide
  645  copies of the complaint and any other preliminary information
  646  available concerning the disclosure of information under s.
  647  112.3187 to each of the other parties named in paragraph (a) and
  648  to the agency, which parties shall each acknowledge receipt of
  649  such copies to the complainant.
  650         (3)(2) FACT FINDING.—The Florida Commission on Human
  651  Relations shall:
  652         (a) Upon receipt of an Receive any allegation of a
  653  retaliatory personnel action prohibited by s. 112.3187,
  654  including a proposed or potential action, and conduct an
  655  investigation informal fact finding regarding any allegation
  656  under this section, to the extent necessary to determine whether
  657  there are reasonable grounds to believe that a retaliatory
  658  prohibited personnel action under s. 112.3187 has occurred, is
  659  occurring, or is to be taken.
  660         (b)Notify the complainant, within 15 days after receiving
  661  a complaint, that the complaint has been received by the
  662  department.
  663         (b)(c) Within 120 90 days after receiving the complaint is
  664  filed, determine whether reasonable grounds exist to believe
  665  that a retaliatory action occurred, is occurring, or is to be
  666  taken provide the agency head and the complainant with a fact
  667  finding report that may include recommendations to the parties
  668  or proposed resolution of the complaint. The fact-finding report
  669  shall be presumed admissible in any subsequent or related
  670  administrative or judicial review.
  671         (2)(3)POWERS OF THE FLORIDA COMMISSION ON HUMAN RELATIONS
  672  CORRECTIVE ACTION AND TERMINATION OF INVESTIGATION.—
  673         (a) The Florida Commission on Human Relations, in
  674  accordance with this act and for the sole purpose of this act,
  675  is empowered to:
  676         1. Receive and investigate complaints from employees
  677  alleging retaliation by state agencies, as the term “state
  678  agency” is defined in s. 112.3187(3), and by independent
  679  contractors s. 216.011.
  680         2. Protect employees and applicants for employment with
  681  such agencies from retaliatory actions prohibited personnel
  682  practices under s. 112.3187.
  683         3. Petition for stays and petition for corrective actions,
  684  including, but not limited to, temporary reinstatement.
  685         4. Recommend disciplinary proceedings pursuant to
  686  investigation and appropriate agency rules and procedures.
  687         5. Coordinate with the Chief Inspector General in the
  688  Executive Office of the Governor and the Florida Commission on
  689  Human Relations to receive, review, and forward to appropriate
  690  agencies, legislative entities, or the Department of Law
  691  Enforcement disclosures of a violation of any law, rule, or
  692  regulation, or disclosures of gross mismanagement, gross
  693  misconduct, gross malfeasance, gross misfeasance, nonfeasance,
  694  neglect of duty, Medicaid fraud or program abuse, or gross waste
  695  of public funds, gross neglect of duty on the part of an agency,
  696  a public officer, or an employee, or substantial or specific
  697  damage to the health, welfare, or safety of the public.
  698         6. Review rules pertaining to personnel matters issued or
  699  proposed by the Department of Management Services, the Public
  700  Employees Relations Commission, and other agencies, and, if the
  701  Florida Commission on Human Relations finds that any rule or
  702  proposed rule, on its face or as implemented, requires the
  703  commission of a prohibited personnel practice, provide a written
  704  comment to the appropriate agency.
  705         7. Investigate, request assistance from other governmental
  706  entities, and, if appropriate, bring actions concerning,
  707  allegations of retaliation by state agencies under subparagraph
  708  1.
  709         8. Administer oaths, examine witnesses, take statements,
  710  issue subpoenas, order the taking of depositions, order
  711  responses to written interrogatories, and make appropriate
  712  motions to limit discovery, pursuant to investigations under
  713  subparagraph 1.
  714         9. Intervene or otherwise participate, as a matter of
  715  right, in any appeal or other proceeding arising under this
  716  section before the Public Employees Relations Commission or any
  717  other appropriate agency, except that the Florida Commission on
  718  Human Relations must comply with the rules of the commission or
  719  other agency and may not seek corrective action or intervene in
  720  an appeal or other proceeding without the consent of the person
  721  protected under ss. 112.3187-112.31895.
  722         10. Conduct an investigation, in the absence of an
  723  allegation, to determine whether reasonable grounds exist to
  724  believe that a retaliatory prohibited action or a pattern of
  725  retaliatory prohibited action has occurred, is occurring, or is
  726  to be taken.
  727         (b) Within 15 days after receiving a complaint that a
  728  person has been discharged from employment allegedly for
  729  engaging in disclosing protected activity information under s.
  730  112.3187, the Florida Commission on Human Relations shall review
  731  the information and determine whether temporary reinstatement is
  732  appropriate under s. 112.3187(8)(f) s. 112.3187(9)(f). If the
  733  Florida Commission on Human Relations so determines, based upon
  734  a legal review of the complaint and accompanying materials, it
  735  shall apply for an expedited order to show cause from the
  736  appropriate agency or circuit court for the immediate
  737  reinstatement of the employee who has been discharged subsequent
  738  to the disclosure made under s. 112.3187, pending the issuance
  739  of the final outcome of order on the complaint.
  740         (c)The Florida Commission on Human Relations shall notify
  741  a complainant of the status of the investigation and any action
  742  taken at such times as the commission considers appropriate.
  743         (d)If the Florida Commission on Human Relations is unable
  744  to conciliate a complaint within 60 days after receipt of the
  745  fact-finding report, the Florida Commission on Human Relations
  746  shall terminate the investigation. Upon termination of any
  747  investigation, the Florida Commission on Human Relations shall
  748  notify the complainant and the agency head of the termination of
  749  the investigation, providing a summary of relevant facts found
  750  during the investigation and the reasons for terminating the
  751  investigation. A written statement under this paragraph is
  752  presumed admissible as evidence in any judicial or
  753  administrative proceeding but is not admissible without the
  754  consent of the complainant.
  755         (c)(e)1. The Florida Commission on Human Relations may
  756  request an agency or a circuit court to order a stay, on such
  757  terms as the court requires, of any personnel action for 45 days
  758  if the Florida commission on Human Relations determines that
  759  reasonable grounds exist to believe that a retaliatory
  760  prohibited personnel action has occurred, is occurring, or is to
  761  be taken. The Florida commission on Human Relations may request
  762  that such stay be extended for appropriate periods of time.
  763         (d)2. If, in connection with any investigation under this
  764  section, it is determined the Florida Commission on Human
  765  Relations determines that reasonable grounds exist to believe
  766  that a criminal violation has occurred which has not previously
  767  been reported prohibited action has occurred, is occurring, or
  768  is to be taken which requires corrective action, the Florida
  769  Commission on Human Relations shall report the determination
  770  together with any findings or recommendations to the agency head
  771  and may report that determination and those findings and
  772  recommendations to the Chief Inspector General and the
  773  Department of Law Enforcement and to the state attorney having
  774  jurisdiction over the matter Governor and the Chief Financial
  775  Officer. The Florida Commission on Human Relations may include
  776  in the report recommendations for corrective action to be taken.
  777         3.If, after 20 days, the agency does not implement the
  778  recommended action, the Florida Commission on Human Relations
  779  shall terminate the investigation and notify the complainant of
  780  the right to appeal under subsection (4), or may petition the
  781  agency for corrective action under this subsection.
  782         4.If the Florida Commission on Human Relations finds, in
  783  consultation with the individual subject to the prohibited
  784  action, that the agency has implemented the corrective action,
  785  the commission shall file such finding with the agency head,
  786  together with any written comments that the individual provides,
  787  and terminate the investigation.
  788         (f)If the Florida Commission on Human Relations finds that
  789  there are no reasonable grounds to believe that a prohibited
  790  personnel action has occurred, is occurring, or is to be taken,
  791  the commission shall terminate the investigation.
  792         (g)1.If, in connection with any investigation under this
  793  section, it is determined that reasonable grounds exist to
  794  believe that a criminal violation has occurred which has not
  795  been previously reported, the Florida Commission on Human
  796  Relations shall report this determination to the Department of
  797  Law Enforcement and to the state attorney having jurisdiction
  798  over the matter.
  799         (e)2. If an alleged criminal violation has been reported,
  800  the Florida Commission on Human Relations shall confer with the
  801  Department of Law Enforcement and the state attorney before
  802  proceeding with the investigation of the retaliatory prohibited
  803  personnel action and may defer the investigation pending
  804  completion of the criminal investigation and proceedings. The
  805  Florida Commission on Human Relations shall inform the
  806  complainant of the decision to defer the investigation and, if
  807  appropriate, of the confidentiality of the investigation.
  808         (f)(h) If, in connection with any investigation under this
  809  section, the Florida Commission on Human Relations determines
  810  that reasonable grounds exist to believe that a violation of a
  811  law, rule, or regulation has occurred, other than a criminal
  812  violation or a retaliatory prohibited action under this section,
  813  the commission may report such violation to the head of the
  814  agency involved. Within 30 days after the agency receives the
  815  report, the agency head shall provide to the commission a
  816  certification that states that the head of the agency has
  817  personally reviewed the report and indicates what action has
  818  been or is to be taken and when the action will be completed.
  819         (g)(i) During any investigation under this section,
  820  disciplinary action may not be taken against any employee of a
  821  state agency, as the term “state agency” is defined in s.
  822  112.3187(3) s. 216.011, for reporting an alleged retaliatory
  823  prohibited personnel action that is under investigation, or for
  824  reporting any related activity, or against any employee for
  825  participating in an investigation without notifying the Florida
  826  Commission on Human Relations.
  827         (h)(j) The Florida Commission on Human Relations may also
  828  petition for an award of reasonable attorney attorney’s fees and
  829  expenses from a state agency, as the term “state agency” is
  830  defined in s. 112.3187(3) s. 216.011, pursuant to s. 112.3187(8)
  831  s. 112.3187(9).
  832         (4)NOTICE OF TERMINATION.—
  833         (a)If the Florida Commission on Human Relations determines
  834  that reasonable grounds do not exist to believe that a
  835  retaliatory action occurred, is occurring, or is to be taken,
  836  the commission must issue a termination of investigation for no
  837  cause, which must provide the reason why the investigation was
  838  terminated to the state agency and to the complainant.
  839         (b)1.If the Florida Commission on Human Relations
  840  determines that reasonable grounds exist to believe that a
  841  retaliatory action occurred, is occurring, or is to be taken,
  842  the commission must issue a fact-finding report that may include
  843  recommendations to the parties or propose a resolution of the
  844  complaint. The commission has 60 days after the date of the
  845  report to attempt to resolve the complaint. If the complaint
  846  remains unresolved upon expiration of the 60-day period, the
  847  commission must issue a notice of termination of investigation
  848  with cause which must provide to the affected parties a summary
  849  of relevant facts found during the investigation and the reason
  850  why the investigation was terminated.
  851         2.A fact-finding report issued under this paragraph is
  852  presumed admissible in evidence in any subsequent judicial or
  853  administrative proceeding but is not admissible without the
  854  consent of the charging party.
  855         (c)Upon receipt of the notice of termination of
  856  investigation, a complainant may:
  857         1.Bring a civil action in any court of competent
  858  jurisdiction within 180 days after rendition of the notice; or
  859         2.At least 60 days after rendition of the notice, file a
  860  complaint with the Public Employees Relations Commission against
  861  the employer-agency regarding the alleged retaliatory action.
  862  The Public Employees Relations Commission has jurisdiction over
  863  such complaints under ss. 112.3187 and 447.503(4) and (5).
  864  Judicial review of any final order of the Public Employees
  865  Relations Commission shall be as provided in s. 120.68.
  866         (d)The notice provisions of s. 768.28 do not apply to any
  867  civil action brought pursuant to ss. 112.3187-112.31895.
  868         (4)RIGHT TO APPEAL.—
  869         (a)Not more than 60 days after receipt of a notice of
  870  termination of the investigation from the Florida Commission on
  871  Human Relations, the complainant may file, with the Public
  872  Employees Relations Commission, a complaint against the
  873  employer-agency regarding the alleged prohibited personnel
  874  action. The Public Employees Relations Commission shall have
  875  jurisdiction over such complaints under ss. 112.3187 and
  876  447.503(4) and (5).
  877         (b)Judicial review of any final order of the commission
  878  shall be as provided in s. 120.68.
  879         Section 5. Paragraph (f) of subsection (2) of section
  880  14.32, Florida Statutes, is amended to read:
  881         14.32 Office of Chief Inspector General.—
  882         (2) The Chief Inspector General shall:
  883         (f) Coordinate the activities of the Florida Public
  884  Whistleblower’s Whistle-blower’s Act pursuant to chapter 112 and
  885  maintain the whistleblower’s whistle-blower’s hotline to receive
  886  complaints and information concerning the possible violation of
  887  law or administrative rules, mismanagement, fraud, waste, abuse
  888  of authority, malfeasance, or a substantial or specific danger
  889  to the health, welfare, or safety of the public.
  890         Section 6. Paragraphs (a), (b), and (f) of subsection (7)
  891  of section 20.055, Florida Statutes, are amended to read:
  892         20.055 Agency inspectors general.—
  893         (7) In carrying out the investigative duties and
  894  responsibilities specified in this section, each inspector
  895  general shall initiate, conduct, supervise, and coordinate
  896  investigations designed to detect, deter, prevent, and eradicate
  897  fraud, waste, mismanagement, misconduct, and other abuses in
  898  state government. For these purposes, each inspector general
  899  shall:
  900         (a) Receive complaints and coordinate all activities of the
  901  agency as required by the Florida Public Whistleblower’s
  902  Whistle-blower’s Act pursuant to ss. 112.3187-112.31895.
  903         (b) Receive and consider the complaints which do not meet
  904  the criteria for an investigation under the Florida Public
  905  Whistleblower’s Whistle-blower’s Act and conduct, supervise, or
  906  coordinate such inquiries, investigations, or reviews as the
  907  inspector general deems appropriate.
  908         (f) Submit in a timely fashion final reports on
  909  investigations conducted by the inspector general to the agency
  910  head, except for whistleblower’s whistle-blower’s
  911  investigations, which shall be conducted and reported pursuant
  912  to s. 112.3189.
  913         Section 7. Subsection (3) of section 112.31901, Florida
  914  Statutes, is amended to read:
  915         112.31901 Investigatory records.—
  916         (3) This section does not apply to whistleblower whistle
  917  blower investigations conducted pursuant to ss. 112.3187,
  918  112.3188, 112.3189, and 112.31895.
  919         Section 8. Subsection (13) of section 760.06, Florida
  920  Statutes, is amended to read:
  921         760.06 Powers of the commission.—Within the limitations
  922  provided by law, the commission shall have the following powers:
  923         (13) To receive complaints and coordinate all activities as
  924  required by the Florida Public Whistleblower’s Whistle-blower’s
  925  Act pursuant to ss. 112.3187-112.31895.
  926         Section 9. This act shall take effect July 1, 2020.