Florida Senate - 2019                                     SB 228
       
       
        
       By Senator Gruters
       
       
       
       
       
       23-00461-19                                            2019228__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s. 106.25,
    3         F.S.; increasing the length of time before an election
    4         during which the Florida Elections Commission may not
    5         make public a probable cause finding and any related
    6         proceedings and records; providing for future
    7         legislative review and repeal; amending s. 112.324,
    8         F.S.; prohibiting the Commission on Ethics from
    9         publicly releasing a notification of a probable cause
   10         finding, and the documents made and received in
   11         disposition of a complaint or referral, during a
   12         specified period immediately preceding an election;
   13         providing for future legislative review and repeal;
   14         providing statements of public necessity; providing an
   15         effective date.
   16          
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Subsection (7) of section 106.25, Florida
   20  Statutes, is amended to read:
   21         106.25 Reports of alleged violations to Florida Elections
   22  Commission; disposition of findings.—
   23         (7)(a)Except as provided in paragraph (b), every sworn
   24  complaint filed pursuant to this chapter with the commission,
   25  every investigation and investigative report or other paper of
   26  the commission with respect to a violation of this chapter or
   27  chapter 104, and every proceeding of the commission with respect
   28  to a violation of this chapter or chapter 104 is confidential,
   29  is exempt from the provisions of ss. 119.07(1) and 286.011 and
   30  s. 24, Art. I of the State Constitution, and is exempt from
   31  publication in the Florida Administrative Register of any notice
   32  or agenda with respect to any proceeding relating to such
   33  violation, except under the following circumstances:
   34         1.(a) As provided in subsection (6);
   35         2.(b) Upon a determination of probable cause or no probable
   36  cause by the commission; or
   37         3.(c) For proceedings conducted with respect to appeals of
   38  fines levied by filing officers for the late filing of reports
   39  required by this chapter.
   40         (b)However, A complainant is not bound by the
   41  confidentiality provisions of this section. In addition,
   42  confidentiality may be waived in writing by the person against
   43  whom the complaint has been filed or the investigation has been
   44  initiated.
   45         (c) If a finding of probable cause in a case is entered
   46  within 60 30 days before prior to the date of the election with
   47  respect to which the alleged violation occurred, such finding
   48  and the proceedings and records relating to such case may shall
   49  not become public until noon of the day following such election.
   50  This paragraph is subject to the Open Government Sunset Review
   51  Act in accordance with s. 119.15 and shall stand repealed on
   52  October 2, 2024, unless reviewed and saved from repeal through
   53  reenactment by the Legislature.
   54         (d) When two or more persons are being investigated by the
   55  commission with respect to an alleged violation of this chapter
   56  or chapter 104, the commission may not publicly enter a finding
   57  of probable cause or no probable cause in the case until a
   58  finding of probable cause or no probable cause for the entire
   59  case has been determined. However, once the confidentiality of
   60  any case has been breached, the person or persons under
   61  investigation have the right to waive the confidentiality of the
   62  case, thereby opening up the proceedings and records to the
   63  public. Any person who discloses any information or matter made
   64  confidential by the provisions of this subsection commits a
   65  misdemeanor of the first degree, punishable as provided in s.
   66  775.082 or s. 775.083.
   67         Section 2. Subsection (3) of section 112.324, Florida
   68  Statutes, is amended to read:
   69         112.324 Procedures on complaints of violations and
   70  referrals; public records and meeting exemptions.—
   71         (3)(a) A preliminary investigation shall be undertaken by
   72  the commission of each legally sufficient complaint or referral
   73  over which the commission has jurisdiction to determine whether
   74  there is probable cause to believe that a violation has
   75  occurred. If, upon completion of the preliminary investigation,
   76  the commission finds no probable cause to believe that this part
   77  has been violated or that any other breach of the public trust
   78  has been committed, the commission shall dismiss the complaint
   79  or referral with the issuance of a public report to the
   80  complainant and the alleged violator, stating with particularity
   81  its reasons for dismissal. At that time, the complaint or
   82  referral and all materials relating to the complaint or referral
   83  shall become a matter of public record.
   84         (b) If the commission finds from the preliminary
   85  investigation probable cause to believe that this part has been
   86  violated or that any other breach of the public trust has been
   87  committed, it shall so notify the complainant and the alleged
   88  violator in writing. Such notification and all documents made or
   89  received in the disposition of the complaint or referral shall
   90  then become public records. However, if the complaint or
   91  referral is against a candidate in any general, special, or
   92  primary election and the finding in such a case is made within
   93  60 days before the date of such election, the notification of
   94  the finding of probable cause and any documents made or received
   95  in the disposition of such complaint or referral may not become
   96  public until noon of the day following such election. This
   97  paragraph is subject to the Open Government Sunset Review Act in
   98  accordance with s. 119.15 and shall stand repealed on October 2,
   99  2024, unless reviewed and saved from repeal through reenactment
  100  by the Legislature.
  101         (c) Upon request submitted to the commission in writing,
  102  any person who the commission finds probable cause to believe
  103  has violated any provision of this part or has committed any
  104  other breach of the public trust shall be entitled to a public
  105  hearing. Such person shall be deemed to have waived the right to
  106  a public hearing if the request is not received within 14 days
  107  following the mailing of the probable cause notification
  108  required by this subsection. However, the commission may on its
  109  own motion, require a public hearing, may conduct such further
  110  investigation as it deems necessary, and may enter into such
  111  stipulations and settlements as it finds to be just and in the
  112  best interest of the state. The commission is without
  113  jurisdiction to, and no respondent may voluntarily or
  114  involuntarily, enter into a stipulation or settlement which
  115  imposes any penalty, including, but not limited to, a sanction
  116  or admonition or any other penalty contained in s. 112.317.
  117  Penalties shall be imposed only by the appropriate disciplinary
  118  authority as designated in this section.
  119         Section 3. (1) The Legislature finds that it is a public
  120  necessity that the period of time during which the Florida
  121  Elections Commission may not make public a finding of probable
  122  cause following an investigation of a complaint and related
  123  proceedings and recordings be extended from 30 days to 60 days
  124  before the date of the election with respect to which the
  125  alleged violation occurred until noon of the day following such
  126  election. As past elections have approached, individuals have
  127  repeatedly resorted to filing complaints with the Florida
  128  Elections Commission alleging certain violations of the Florida
  129  Election Code by candidates during the pendency of an election
  130  cycle as a means to unfairly influence the electoral process. In
  131  many cases, individuals filing a complaint have been affiliated
  132  with the candidate who is opposing the candidate who is the
  133  subject of the complaint. Such abuse of the complaint process
  134  has a disruptive effect on the electoral process and can
  135  ultimately dissuade voters from participating in an election.
  136  Additionally, the release of a probable cause determination in
  137  close proximity to an election may deprive the candidate who is
  138  the subject of the complaint of the ability to respond to the
  139  Florida Elections Commission’s findings or to reach a settlement
  140  before the election occurs. The Legislature has already
  141  recognized this potential of harm to an ongoing election by
  142  prohibiting the Florida Elections Commission from making public
  143  any finding of probable cause and related proceedings and
  144  records during the 30 days before the election with respect to
  145  which the alleged violation occurred.
  146         (2) The Legislature further finds that it is a public
  147  necessity that the Commission on Ethics not be allowed to make
  148  public the notification of a finding of probable cause against a
  149  candidate in any general, special, or primary election, and the
  150  documents made or received in the disposition of such complaint
  151  or referral, beginning 60 days before such election and
  152  continuing until noon on the day following the election. Similar
  153  to complaints filed with the Florida Elections Commission,
  154  ethics complaints have been used to influence the electoral
  155  process in some instances. The public release of a probable
  156  cause determination by the Commission on Ethics, and the
  157  documents made or received in the disposition of such complaint
  158  or referral, in close proximity to an election may deprive the
  159  candidate who is the subject of the complaint of the ability to
  160  respond to the findings or to reach a settlement with the
  161  commission before the election occurs. The Legislature has
  162  already recognized the importance of avoiding any unfair impact
  163  of ethics complaints or referrals on the electoral process by
  164  placing limitations on the filing of complaints or referrals and
  165  the disclosure of the intention of filing a complaint or
  166  referral within the 30 days immediately preceding the election.
  167         Section 4. This act shall take effect July 1, 2019.