34-5.006: Probable Cause Determination
34-5.0291: Award of Attorney's Fees
PURPOSE AND EFFECT: The Commission previously submitted a Notice of Rule Development but erroneously referenced a rule that was not being changed – Rule 34-5.0006, F.A.C. The rules that are being amended, Rules 34-5.006 and 34-5.0291, F.A.C., are correctly identified in this notice.
SUBJECT AREA TO BE ADDRESSED: The subject of this rulemaking includes the Commission’s procedural rule for probable cause determinations in complaint proceedings, and the rule that implements Section 112.317(7), Florida Statutes, that allows for respondents to recover their costs and attorney’s fees against complainants.
RULEMAKING AUTHORITY: 112.322(9) FS.
LAW IMPLEMENTED: Art. II, Section 8(f) and (h), Fla. Const., 112.322, 112.324 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Friday, June 15, 2012, 8:30 a.m.
PLACE: Senate Office Building, Room 37S, 404 S. Monroe Street, Tallahassee, FL
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 3 days before the workshop/meeting by contacting: Millie Fulford, (850)488-7864. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Julia Cobb Costas, Assistant General Counsel, Florida Commission on Ethics, (850)488-7864 or costas.julie@leg.state.fl.us
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
34-5.006 Probable Cause Determination.
(1) through (2) No change.
(3) Advocate’s Recommendation. The Advocate shall review the investigator’s report and shall make a written recommendation to the Commission for the disposition of the complaint, including a statement of what charges shall be at issue at the probable cause hearing. If the Advocate recommends that a public hearing be held, the recommendation shall include a statement of what charges shall be at issue at the hearing. A copy of the recommendation shall be furnished to the respondent. The respondent shall be given not less than 7 days from the date of mailing of the Advocate’s recommendation, within which time to file with the Commission a written response to the recommendation. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the Commission, so long as the recommendation is furnished to the respondent within a reasonable period of time under the circumstances.
(4) Notice of Probable Cause Hearing and Right to Attend. The respondent, the complainant(s), their counsel, and the Advocate shall be permitted to attend the hearing at which the probable cause determination is made. Notice of the probable cause hearing shall be sent to the respondent, complainant(s), and Advocate at least 14 days before the hearing. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the Commission, so long as the notice is furnished within a reasonable period of time under the circumstances.
(5) through (6) No change.
Rulemaking Specific Authority 112.322(9) FS. Law Implemented Art. II, Section 8(f), (h), Fla. Const., 112.322, 112.324 FS. History–New 4-7-77, Amended 9-21-77, 7-13-80, 2-21-83, 11-14-85, Formerly 34-5.06, Amended 2-19-91, 7-7-91, 7-5-92, 7-28-98,________.
34-5.0291 Award of Attorney’s Fees.
(1) No change.
(2) The Commission shall make such a determination only upon a petition for costs and attorney’s fees filed with the Commission by the public officer or employee complained against within 30 days following a dismissal of the complaint. Such petition shall state with particularity the facts and grounds which would prove entitlement to costs and attorney’s fees and shall include the amount of such costs and attorney’s fees expended by, or on behalf of, such petitioner through the date of the filing of the petition. Staff shall forward a copy of said petition to the complainant by certified mail, return receipt requested.
(3) If the facts and grounds alleged in the petition complaint are not sufficient to state a claim for costs and reasonable attorney’s fees, the Commission shall dismiss the petition after an informal proceeding. If the Commission determines it appears that the facts and grounds are sufficient, the Chair after considering the Commission’s workload, shall direct that the hearing of the petition be held before the Division of Administrative Hearings, the full Commission, or a single Commission member serving as hearing officer. Commission hearing officers shall be appointed by the Chair. The hearing shall be a formal proceeding under Chapter 120, F.S. and the Uniform Rules of the Administration Commission, Chapter 28-106, F.A.C. All discovery and hearing procedures shall be governed by the applicable provisions of Chapter 120, F.S., and Chapter 28-106, F.A.C. The parties to the hearing shall be the petitioner (i.e., the public officer or employee who was the respondent in the complaint proceeding) respondent and the complainant(s), who may be represented by legal counsel.
(4) The petitioner respondent has the burden of proving the grounds for an award of costs and attorney’s fees.
(5) through (6) No change.
Rulemaking Specific Authority 112.322(9), FS. Law Implemented 112.317(7), 112.322, 112.324, FS. History–New 2-16-95, Amended 7-28-98, 7-30-00,_________.