RULES OF THE

    FLORIDA COMMISSION ON ETHICS

  CHAPTER 34-9

   HEARINGS GRANTED IN ABSENCE OF SWORN COMPLAINT

 

34-9.001        Procedures for Public Hearings, Generally.

34-9.0015      Time Periods.

34-9.0016      Filing and Serving Documents; Facsimile Transmissions.

34-9.0017      Presiding Officer.

34-9.002        Parties to Public Hearing; Counsel.

34-9.003        Contents of Petition.

34-9.004        Staff Procedures Upon Receipt of Request for Hearing in Absence of Sworn Complaint.

34-9.005        Written Analysis of Sufficiency of Petition.

34-9.006        Commission Disposition of Petition.

34-9.0065      Rules Governing the Proceedings.

34-9.007        Investigations.

34-9.0075      Delegation of Authority.

34-9.008        Depositions.  (Repealed)

34-9.009        Notice of Public Hearing.  (Repealed)

34-9.010        Subpoenas for Discovery or Public Hearing. (Repealed)

34-9.011        Consolidation of Hearings. (Repealed)

34-9.012        Disqualification of Commission Members.

34-9.0121      Ex Parte Communications.

34-9.0123      Motions.  (Repealed)

34-9.0125      Prehearing Conferences.  (Repealed)

34-9.013        Hearing Procedures.  (Repealed)

34-9.014        Findings and Recommendations, Generally.  (Repealed)

34-9.015        Recommended Order by Single Commission Member, DOAH Hearing Officer, or Panel of Three Commission Members.  (Repealed)

34-9.0151      Exceptions to Recommended Findings.  (Repealed)

34-9.0153      Action on Recommended Order by the Full Commission.

34-9.016        Final Action.

34-9.017        The Record.  (Repealed)

34-9.018        Rehearings.

34-9.019        Waiver of Rules.  (Repealed)

34-9.001  Procedures for Public Hearings, Generally.

Public hearings requested and conducted pursuant to Subsection 112.322(2), F.S., shall be governed by the rules of Chapter 34-9 of the Florida Administrative Code, the Uniform Rules of the Administration Commission in Chapter 28-106, F.A.C., and Subsection 112.322(2), F.S.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Amended 9-21-77, Formerly 34-9.01, Amended 2-16-95, 7-28-98.

34-9.0015  Time Periods. 

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 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 2-16-95, Amended 7-28-98.    

34-9.0016  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 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 2-16-95, Amended 7-28-98.

34-9.0017     Presiding Officer.

For the purposes of Commission proceedings under Section 112.322(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 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 7-28-98.

34-9.002  Parties to the Proceeding; Counsel; Qualified Representative. 

The public officer or employee who petitions for a hearing under provisions of this chapter shall be the Petitioner. Petitioner may appear on his own behalf or may be represented by a lawyer or other qualified representative of his choice.  All notices and communications to a Petitioner represented by an attorney or qualified representative shall be made through that attorney or qualified representative.  The Commission shall be represented by a Solicitor, assigned by and in the discretion of the Commission. The Solicitor shall present at the public hearing all evidence relevant to the cause that was produced by the investigation.  No intervenor shall be permitted.  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 112.322(10), FS.

Law Implemented 112.322(2), 120.62(2) FS.

History--New 2-23-77, Formerly 34-9.06, Amended 9-21-77, Formerly 34-9.02, Amended 2-16-95, 7-28-98.

34-9.003  Contents of Petition.

A petition for hearing pursuant to Section 112.322(2), F.S., shall contain a statement of the public office or employment held by Petitioner; a statement of the specific allegations made against Petitioner which form the basis of the petition, when and by whom they were made; a statement of the facts and circumstances which make the allegations of such gravity as to affect the general welfare of the state and the ability of Petitioner effectively to discharge the duties of the office or employment.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 9-21-77, Formerly 34-9.03, Amended 2-16-95.

34-9.004  Staff Procedures Upon Receipt of Request for Hearing in Absence of Sworn Complaint.

(1)  Upon receipt of a petition by any public officer or employee seeking a hearing before the Ethics Commission to present oral or written testimony pursuant to Subsection 112.322(2), F.S., in response to allegations made against such person that he or she engaged in conduct violative of the Code of Ethics, Part III, Chapter 112, Florida Statutes, staff shall stamp on the face thereof the date on which the petition was received shall be assigned a control number which shall be entered on the petition itself and on a folder in which the petition shall be filed as a public record.

(2)  Upon receipt of a petition for a hearing pursuant to Florida Statutes Section 112.322(2), the staff of the Commission shall review the petition to determine if sufficient detail has been submitted by the Petitioner to enable the Commission to judge whether the allegations accuse Petitioner of engaging in conduct violative of the Code of Ethics and whether the allegations are of such gravity as to affect the general welfare of the state and the ability of Petitioner to effectively discharge the duties of office. If the petition is incomplete or insufficient to allow such a determination, a copy of the petition shall be returned to Petitioner with a request for additional information. The staff shall provide assistance or information to persons petitioning for a hearing, but shall not in any manner encourage, solicit or discourage a petition for hearing.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.03, Amended 9-21-77, Formerly 34-9.04, Amended 2-16-95.

34-9.005  Written Analysis of Sufficiency of Petition.

(1)  The Executive Director shall review the Petition and make a written analysis (1) of whether the allegations made against Petitioner, if true, would constitute a violation of any provision of the Code of Ethics and, if so, which provisions, and (2) as to the gravity of the allegations and their effect upon the general welfare of the state as well as upon the ability of the Petitioner to effectively discharge the duties of office. The allegations made against Petitioner need not be as precise as would be required by the rules of civil procedure in a court of law. A petition shall not be deemed legally insufficient because it is based upon evidence which would be hearsay evidence in a court of law. Based upon this analysis, the Executive Director shall recommend that the petition for hearing either be granted or denied or that additional information be provided by Petitioner.

(2)  A copy of the written analysis shall be sent to Petitioner at least seven (7) days prior to bringing it before the Commission in public meeting for Commission disposition, provided such period may be shortened with the written consent of Petitioner.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-3-77, Formerly 34-9.04, Amended 9-21-77, Formerly 34-9.05.

34-9.006  Commission Disposition of Petition.

(1)  In a public hearing, the Commission shall find the petition to be legally sufficient and grant a public hearing if a majority of those members present and voting consider that the allegations, if true, would constitute a violation of the Code of Ethics or any other breach of the public trust and that the allegations are of such gravity as to affect the general welfare of the state and the ability of the Petitioner to discharge effectively the duties of his or her office. The Commission shall find the petition to be legally insufficient and deny the petition (1) if Petitioner lacks standing; (2) if the allegations which gave rise to the petition would not, if true, constitute a violation of the Code of Ethics or any other breach of the public trust; or (3) if a majority of the Commission present and voting fails to consider the allegations to be of such gravity as to affect the general welfare of the state and the ability of the Petitioner effectively to discharge the duties of his or her office.

(2)  If the Commission grants a public hearing of the matters alleged, the Commission shall specify whether the hearing shall be before the full Commission, before a single Commissioner as hearing officer, or before the Division of Administrative Hearings; shall determine which provisions of law and shall order an investigation to determine whether in fact Petitioner did violate those provisions.

(3)  The Executive Director shall notify Petitioner of the Commission's action on the petition not later than five (5) days following such action.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Amended 9-21-77, Formerly 34-9.06, Amended 2-16-95, 7-28-98.

34-9.0065 Rules Governing the Proceedings.

Investigations shall be governed by the rules of this Chapter 34-9, F.A.C.  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 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 7-28-98.

34-9.007  Investigations.

(1)  Investigators. Investigations may be conducted by Commission staff, by personnel of the Department of Legal Affairs, or by any other person or agency so designated by the Executive Director.

(2)  Scope of Investigation. Investigations shall be limited only to encompass facts and persons materially related to the issues defined by the Commission in its order granting the public hearing, but shall include all facts and persons reasonably calculated to lead to evidence admissible at the public hearing.

(3)  Investigator to be Impartial. An investigator shall be impartial and unbiased in the conduct of the investigation. An investigator shall collect all evidence within the limits of the scope of the investigation, whether such evidence within the limits of the scope of the investigation, whether such evidence tends to prove or disprove the allegations. The investigator's duty is to ascertain the truth. If an investigator feels that for any reason he or she cannot be impartial or unbiased, then such investigator shall so notify the Executive Director and shall immediately discontinue working on the investigation. If the Executive Director feels that the investigator cannot be unbiased or impartial at any time during the investigation, the Executive Director shall terminate any further investigation by the investigator.

(4)  Investigative Report. Upon completion of a thorough investigation, the investigator(s) shall prepare a report to the Commission.  The report shall contain summaries of statements made to the investigator(s) by witnesses and copies of all documents received by the investigator(s) which are material to the issues in question. The report shall not contain any determination or speculation or recommendation as to whether Petitioner violated the Code of Ethics. A copy of the investigative report shall be sent to Petitioner upon its completion. Documents shall be appropriately labeled and indexed for quick reference.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 9-21-77, Formerly 34-9.07.

34-9.0075  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 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 2-16-95, Amended 7-28-98.

34-9.008  Depositions.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 9-21-77, Formerly 34-9.08, Repealed 7-28-98.

34-9.009  Notice of Public Hearing.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.07, Amended 9-21-77, Formerly 34-9.09, Amended 2-16-95, Repealed 7-28-98.

34-9.010  Subpoenas for Discovery or Public Hearing.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.05, Amended 9-21-77, Formerly 34-9.10, Amended 2-16-95, Repealed 7-28-98.

34-9.011  Consolidation of Hearings.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.08, Amended 9-21-77, Formerly 34-9.11, Repealed 7-28-98.

34-9.012  Disqualification of Commission Members.

(1)  Commission members shall be disqualified from sitting either as a member of the Commission or as the hearing officer for bias, prejudice, or interest.  Disqualification may be raised by the Petitioner, by the Solicitor, or by any member.

(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 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.09, Amended 9-21-77, Formerly 34-9.12, Amended 2-16-95, 7-28-98.

34-9.0121  Ex Parte Communications.

(1)  A commission member shall not initiate nor consider any ex parte communication relative to the merits of a pending complaint 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 indirectly, would have a substantial interest in the proposed action of the Commission, or his or her authorized representative or counsel; or

(c)  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 Solicitor.

(2)  A commission member who receives such an ex parte communication shall place on the record of the matter 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 Solicitor, 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 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 2-16-95.

34-9.0123  Motions.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 2-16-95, Repealed 7-28-98.

34-9.0125  Prehearing Conferences.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 9-21-77, Formerly 34-9.125, Repealed 7-28-98.

34-9.013  Hearing Procedures.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.10, Amended 9-21-77, Formerly 34-9.13, Amended 2-16-95, Repealed 7-28-98.

34-9.014  Findings and Recommendations, Generally.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.11, Amended 9-21-77, Formerly 34-9.14, Amended 2-16-95, Repealed 7-28-98.

34-9.015  Recommended Order by Single Commission Member, DOAH Hearing Officer, or Panel of Three Commission Members.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2) FS.

History--New 2-23-77, Formerly 34-9.12, Amended 9-21-77, Formerly 34-9.15, Amended 2-16-95, Repealed 7-28-98.

34-9.0151  Exceptions to Recommended Findings.

Specific Authority 112.322(10), FS.

Law Implemented 112.322(2), FS.

History--New 2-16-95, Repealed 7-28-98.

34-9.0153  Action on Recommended 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 order shall not be an evidentiary "hearing."  No new evidence shall be taken.

(2) 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 Petitioner and the Solicitor prior to the final hearing.