RULES
OF THE
FLORIDA COMMISSION ON ETHICS
CHAPTER 34-15
REVIEW, INVESTIGATION AND HEARING OF COMPLAINTS
ALLEGING VIOLATIONS OF S. 11.062(2), F.S.
34-15.001
Scope and Applicability of Chapter.
34-15.0015
Time Periods.
34-15.0016
Filing and Serving Documents; Facsimile
34-15.002
Staff Procedures Upon Receipt of a Complaint.
34-15.0017
Presiding Officer.
34-15.0035
Delegation of Authority.
34-15.004
Subpoenas During Preliminary Investigation.
34-15.005
Investigations.
34-15.006
Counsel.
34-15.007
Probable Cause Determination.
34-15.008
Notification of Manner of Disposition.
34-15.010
Procedures for Public Hearings, Generally.
34-15.011
Parties to Public Hearings.
(Repealed)
34-15.013
Notice of Public Hearing.
34-15.014
Hearing Panels. (Repealed)
34-15.016
Consolidation of Cases.
(Repealed)
34-15.017
Disqualification of Commission Members.
34-15.0171
Ex Parte Communications.
34-15.018
Subpoenas for Public Hearing.
(Repealed)
34-15.0181
Subpoenas for Discovery; Discovery.
34-15.0183
Motions. (Repealed)
34-15.0184
Motions in Opposition to Proceeding.
(Repealed)
34-15.0185
Prehearing Conferences. (Repealed)
34-15.0186
Exchange of Witness Lists. (Repealed)
34-15.019
Procedures for Public Hearings.
(Repealed)
34-15.020
Stipulations, Settlements, and Consent Orders.
34-15.021
Final Order by Full Commission, Single
Commission Member or Three-Member Panel of Commissioners, Generally.
(Repealed)
34-15.022
Recommended Order by Single Commission Member,
34-15.023
Exceptions to Recommended Final Order.
(Repealed)
34-15.024
Action on Recommended Final Order by the Full
34-15.025
Transmittal of Final Order.
34-15.026
The Record. (Repealed)
34-15.028
Waiver of Rules. (Repealed)
34-15.001 Scope and Applicability of Chapter.
Section
11.062(2), Florida Statutes, prohibits departments of the executive branch,
state universities, community colleges, and water management districts from
using public funds to retain lobbyists to represent them before the legislative
and executive branches, except through the use of full-time employees.
Similarly, persons are prohibited from accepting public funds from
these agencies for lobbying the legislative or executive branch.
The statute authorizes the Commission to accept complaints of
violations, investigate, and report its determinations.
The rules in this Chapter 34-15, F.A.C., shall govern the receipt
and disposition of all complaints reported to the Commission under this
statute.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
In
computing any period of time prescribed or allowed by these rules, by order of
the Commission, the Chair, or another presiding officer, or by any applicable
statute, the time period shall be calculated in accordance with Rule
28-106.103, F.A.C.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
34-15.0016 Filing and Serving Documents; Facsimile Transmissions.
Pleadings
and other documents under the rules of this Chapter shall be filed and served
in accordance with Rule 28-106.104, F.A.C., whether in paper or electronic
form, and shall contain the information required by that Rule.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
34-15.0017
Presiding Officer. For the
purposes of Commission proceedings under Section 11.062(2), Florida Statutes,
the presiding officer shall be the Chair of the Commission or, in the event
the Chair is unavailable, the Vice Chair of the Commission.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
7-28-98.
(1) Upon receipt of a complaint pursuant to Section 11.062(2),
Florida Statutes, of a possible violation of that law, staff shall assign a
control number. The Executive
Director shall review the complaint to determine whether the matters alleged
indicate a violation; if not, the Executive Director may request additional
information from the complainant.
(2) The person or agency that is the subject of the complaint
shall be designated as the respondent(s).
(3) A copy of the complaint shall be forwarded to the respondent
within five working days following receipt by the Commission.
(4) When the Executive Director determines that a violation is
indicated by the complaint, the Executive Director shall order an
investigation of the matter in accordance with the rules of this chapter.
If the Executive Director determines that the complaint is not
sufficient to indicate a possible violation, the Executive Director shall
recommend that the Commission dismiss the complaint.
The Commission may find the complaint to be sufficient and order an
investigation; may find the complaint to be insufficient, dismiss it, and
notify the complainant that no investigation will be made; or may take such
other action as may be appropriate.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
34-15.0035 Delegation of Authority.
The
Commission hereby delegates to its investigators the authority to administer
oaths and affirmations, delegates the authority to issue subpoenas to its
chair and, in the absence or unavailability of the chair, to its vice chair,
and authorizes its employees to serve any subpoena issued under the
Commission's authority.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
34-15.004 Subpoenas During Preliminary Investigation.
When
an investigation is ordered or at any time thereafter, upon recommendation of
the Executive Director or upon motion of the Commission, the Commission Chair
or other member authorized by the Commission may authorize the issuance of
subpoenas or subpoenas duces tecum. Each
subpoena shall be signed by the Chair or other member authorized by the
Commission and shall state the person, documents or other things to be
subpoenaed. Each subpoena further
shall name the person before whom the witness is to give testimony, and shall
state in general terms the subject matter of the testimony to be elicited. If documents or other things are to be produced, the subpoena
shall describe the same with as much specificity as reasonably practicable.
The subpoena shall state clearly on its face that it is issued by the
Commission on Ethics in accordance with its authority to investigate
violations of Section 11.062(2), Florida Statutes.
Such subpoenas shall be issued for investigative purposes only, and
neither the respondent nor the respondent's counsel shall be entitled to
attend the investigative proceeding at which the witness is to give a sworn
statement unless the respondent is the person subpoenaed.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
(1) Commencement of Investigations.
Investigations shall be initiated as provided above in Rule
34-15.002, F.A.C., provided that information from public records may be
obtained by staff prior to the ordering of an investigation.
(2) Investigators. Investigation
shall be conducted by Commission staff, by personnel of the Department of
Legal Affairs, or by any other person or agency so designated by the
Commission.
(3) Scope of Investigation.
Investigations shall be limited to the allegations of the complaint.
(4) Evidence of Wrongful Acts Unrelated to the Complaint.
If during the course of an investigation evidence of a wrongful act
unrelated to the complaint is discovered by the investigator, such evidence
shall be reported to the Commission in a separate investigator's report.
The wrongful act shall not be further investigated by the investigator
in the absence of a complaint with respect thereto.
Upon receipt of a separate investigator's report containing evidence of
a wrongful act unrelated to the matter at issue, the Commission shall:
(a) as soon as practicable
forward evidence of the commission of a crime to the appropriate law
enforcement official; and (b) forward evidence of the commission of any other wrongful act
to the appropriate disciplinary or law enforcement official as soon as
practicable following the completion of the preliminary investigation.
If upon independent investigation the appropriate disciplinary official
wishes to file a complaint with the Commission he may do so and said complaint
shall be received and considered by the Commission in the same manner as any
other complaint.
(5) Investigator to be Impartial.
An investigator shall be impartial and unbiased in the conduct of the
preliminary investigation. An
investigator shall collect all evidence related to the allegations, whether
such evidence tends to prove or disprove the allegations.
If the Commission determines that a public hearing shall be held,
however, the investigator is responsible for assisting the Advocate in the
proof of the allegations brought against the respondent.
If an investigator feels that for any reason he or she cannot be
impartial or unbiased during the preliminary investigation then the
investigator shall so notify the Executive Director and shall immediately
discontinue working in the investigation. If the Commission feels that the investigator cannot be
unbiased or impartial at any point of time during the preliminary
investigation, the Commission shall terminate any further investigation by the
investigator.
(6) Investigator's Report. Upon
the completion of the preliminary investigation, the investigator shall
prepare a report to the Commission. The
report shall contain a narrative account of all pertinent information obtained
through interviews of witnesses, documentary evidence, or other sources and
shall include a discussion of any conflicts in the evidence.
The report shall not contain any determination or speculation with
respect to whether the evidence indicates a violation.
The report shall make no recommendations.
A separate report shall be prepared in accordance with subsection (4),
above, if necessary.
(7) Investigatory File. The
investigator shall prepare an
(a) copies of all documents obtained during the course of the
(b) tape recordings of interviews with witnesses and, if no
recording is made, a summary of the interview;
(c) a list of the names and addresses of all persons actually
(d) any other relevant documents; and
(e) the investigator's report(s) to the Commission.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
(1) Respondent. Respondent
may be represented by a lawyer or other qualified representative.
All notices and communications to a respondent represented by a lawyer
or qualified representative shall be made through respondent's lawyer or
qualified representative.
(2) Advocate. The
Advocate presenting the matter before the
(3) Appearances.
Appearances by counsel or other qualified representatives shall be
governed by Rules 28-106.105 and 28-106.106, F.A.C.
The qualifications of a representative shall be determined in
accordance with Rule 28-106.106. Qualified
representatives shall observe the standards of conduct specified in Rule
28-106.107, F.A.C.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
(1) Notification of Completion of Investigation.
When the
(2) Time to Review Report. The
probable cause hearing shall be not less than 14 days from the date of mailing
of the investigator's report to the respondent, within which time the
respondent and counsel for the respondent may review the report and file with
the Commission a written response to the report.
(3) Advocate's Recommendation.
The Advocate shall review the
(4) Notice of Hearing and Right to Attend. The respondent shall be given at least 14 days notice of the
probable cause hearing and may attend, provided that this period may be
shortened by the Commission, so long as reasonable notice under the
circumstances is given.
(5) Scope of Hearing. The
probable cause hearing is the conclusion of the preliminary investigation.
The respondent and the Advocate shall be permitted to make brief oral
statements in the nature of oral argument to the Commission, based on the
investigator's report, before the probable cause determination.
The determination shall be based upon the investigator's report, the
Advocate's recommendation, the complaint, and staff recommendations, as well
as oral or written statements by the respondent.
The respondent may not testify or present or call witnesses at this
hearing.
(6) Determination of Probable Cause.
The Commission shall meet to determine the manner in which the
proceeding will be disposed of. The
Commission may continue the hearing to allow further investigation; may order
the dismissal of the proceeding if it finds no probable cause to believe that
a violation has occurred, concluding the matter before it; may order a final,
public hearing of the matter if it finds probable cause to believe that a
violation has occurred; or may take such other action as it deems necessary to
resolve the matter, consistent with due process of law.
In making its determination the Commission may consider:
(a) the sufficiency of the evidence against the respondent, as
contained in the investigator's report;
(b) the admissions and other stipulations of the respondent, if
any;
(c) the nature and circumstances of the respondent's actions;
(d) the expense of further proceedings; and
(e) such other factors as it deems material to its decision.
If
the Commission orders a public hearing, the Commission shall determine what
charges shall be at issue for the hearing.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
34-15.008 Notification of Manner of Disposition.
Upon
the
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
34-15.010 Procedures for Public Hearings, Generally.
Public
hearings may be conducted by the full Commission, by a single Commission
member, or by the Division of Administrative Hearings, as directed by the
Chair of the Commission after considering the Commission=s
workload. The Commission may
refer the matter by letter to the Division of Administrative Hearings for the
appointment of an administrative law judge.
Public hearings held before the Commission or its members shall be
governed by the Uniform Rules of the Administration Commission, Chapter
28-106, F.A.C. Proceedings before
the Commission after the public hearing shall be governed by the Uniform Rules
of the Administration Commission, Chapter 28-106, F.A.C., if one of the rules
of that chapter is applicable, or by the remaining rules of this chapter.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
34-15.011
Parties to Public Hearings.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
34-15.013 Notice of Public Hearing.
The
Executive Director shall notify respondent of the date, time and place of the
public hearing by mailing to the respondent by certified mail, return receipt
requested, a written notice at least 30 days prior to the hearing. The notice
shall describe the specific violations charged. Upon written consent of
respondent, the 30-day notice may be waived and the hearing held sooner.
In addition, the hearing may be held sooner than 30 days when the
passage of time may be reasonably expected to render moot the ultimate
disposition of the matter by the Commission, so long as reasonable notice
under the circumstances is given.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.016
Consolidation of Cases.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.017
Disqualification of Commission Members.
(1) Commission members shall be disqualified from sitting as a
member of the Commission at either the probable cause hearing or the final
public hearing for bias, prejudice, or interest. Disqualification may be
raised by a respondent, by the Advocate, or by any member, but not by the
complainant.
(2) Unless good cause is shown, all motions for disqualification
shall be filed with the Commission at least 5 days prior to the hearing at
which the member is expected to participate.
The motion shall be accompanied by an affidavit stating the particular
grounds.
(3) Unless denied as untimely, the motion shall be ruled on by the
Commission member whose disqualification is sought; the ruling shall be based
on the legal sufficiency of the motion and affidavit. If the motion and affidavit are found legally sufficient, the
member shall disqualify himself or herself.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
34-15.0171
Ex Parte Communications.
(1) A Commission member shall not initiate nor consider any ex
parte communication relative to the merits of a pending proceeding by:
(a) A public employee or official engaged in prosecution or
advocacy in connection with the matter;
(b) A party to the proceeding or any person who, directly or
(c) A complainant or any other individual who has personal
knowledge of the facts underlying the proceeding, or his or her authorized
representative or counsel.
Nothing
in this subsection shall apply to advisory staff members who do not testify on
behalf of the Commission in the proceeding or shall prohibit Commission
members who are contacted by any of the above persons from referring them to
Commission staff or the Commission Advocate.
(2) A commission member who receives such an ex parte
communication shall place on the record all written communications received,
all written responses to such communications, and a memorandum stating the
substance of all oral communications received and all oral responses made, and
shall also advise all parties that such matters have been placed on the
record. Any party, including the
Advocate, desiring to rebut the ex parte communication shall be allowed to do
so if a request for the opportunity for rebuttal is made within 10 days after
notice of the communication.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
34-15.018
Subpoenas for Public Hearing.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.0181 Subpoenas for Discovery; Discovery.
At
any time after the Commission orders a public hearing of the matter, the
Commission may issue subpoenas to effect discovery upon the written request of
respondent or Advocate. The
requesting person shall give the name and address of each witness he wishes to
have deposed and shall describe with particularity those documents or other
items that the person wishes to have the witness to produce, bring or deliver
pursuant to a subpoena duces tecum. Subpoenas
shall be issued by the Chairman or other authorized member of the Commission
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.0184
Motions in Opposition to Proceeding.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.0185
Prehearing Conferences.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.0186
Exchange of Witness Lists.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.019
Procedures for Public Hearings.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.020 Stipulations, Settlements, and Consent Orders.
Informal
disposition of the proceeding shall be made by stipulation, agreed settlement,
or consent order between the Advocate and the Respondent, upon approval of the
Commission in a public meeting.
(1) The Advocate is not required to present or propose to the
Commission a stipulation, settlement, or consent order offer from the
Respondent unless the Advocate agrees to the terms of the offer.
(2) Commission staff shall send to the complainant a copy
of the proposed stipulation, settlement, or consent order, notify the
complainant of the meeting at which the Commission will consider the proposed
stipulation or order, and advise the complainant that any written response to
the proposed stipulation or order submitted by the complainant will be
provided to the Commission for its consideration.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
34-15.021
Final Order by Full Commission, Single Commission Member or
Three-Member Panel of Commissioners, Generally.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.022
Recommended Order by Single Commission Member, DOAH Hearing Officer, or
Panel of Three Commission Members.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.023
Exceptions to Recommended Final Order.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
34-15.024
Action on Recommended Final Order by the Full Commission.
(1) Where the hearing has been conducted by a single
Commissioner, or DOAH administrative law judge, the meeting of the full
Commission to consider the recommended final order shall not be an evidentiary
"hearing." No new
evidence shall be taken.
(2) As the complainant is not a party, the complainant is not
entitled to address the Commission either orally or in writing in response to
the recommended order.
(3) In order to assist the
Commission in evaluating any exceptions that may have been filed, Commission
staff may provide a draft final order analyzing the exceptions.
If one is drafted, copies shall be provided to the respondent and the
Advocate prior to the final hearing.
(4) A commission member who participated in the hearing may
participate with the full Commission in the formulation of the final order.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
34-15.025 Transmittal of Final Order.
The
final order shall be signed by the Chair, shall be transmitted by mail to the
respondent and complainant, and shall be made available to the public.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Amended 7-28-98.
Specific
Authority 11.062(2), FS.
Law Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.
Specific
Authority 11.062(2), FS.
Law
Implemented 11.062(2), FS.
History--New
2-16-95, Repealed 7-28-98.