34-5.006: Probable Cause Determination
34-5.0291: Award of Attorney's Fees
PURPOSE AND EFFECT: The Commission is amending Rule 34-5.006, which contains the procedures for probable cause determinations, at the recommendation of JAPC to make it clearer and consistent with Section 112.324, F.S. Rule 34-5.0291, F.A.C., is being amended to provide respondents and complainants with additional guidance on the process to obtain an award of attorney’s fees and costs pursuant to Section 112.317(7), F.S.
SUMMARY: The proposed changes to Rule 34-5.006, F.A.C., clarify the probable cause determination procedures, and the proposed changes to Rule 34-5.0291, F.A.C., require petitioners to state the amount of attorney’s fees and costs expended or incurred on their behalf through the date of filing their petition. Other minor changes are made to both rules for clarity.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Individuals, not small businesses, are respondents and complainants in Commission on Ethics complaint proceedings. Hence, there is no direct impact on small businesses to consider.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 112.322(9) FS.
LAW IMPLEMENTED: Art. II, Section 8(f), (h), Fla. Const., 112.317(7), 112.322, 112.324 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Friday, July 27, 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 72 hours before the workshop/meeting by contacting: Millie Fulford at (850)488-7864 or fulford.millie@leg.state.fl.us. 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 IS: Julia Cobb Costas, Assistant General Counsel, at (850)488-7864 or costas.julie@leg.state.fl.us
THE FULL TEXT OF THE PROPOSED RULE 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,_________.