The Florida Senate

112.31895  Investigative procedures in response to prohibited personnel actions.--

(1)

(a)  If a disclosure under s. 112.3187 includes or results in alleged retaliation by an employer, the employee or former employee of, or applicant for employment with, a state agency, as defined in s. 216.011, that is so affected may file a complaint alleging a prohibited personnel action, which complaint must be made by filing a written complaint with the Office of the Chief Inspector General in the Executive Office of the Governor, the Department of Legal Affairs, or the Office of the Public Counsel, no later than 60 days after the prohibited personnel action.

(b)  Within three working days after receiving a complaint under this section, the office or officer receiving the complaint shall acknowledge receipt of the complaint and provide copies of the complaint and any other preliminary information available concerning the disclosure of information under s. 112.3187 to each of the other parties named in paragraph (a), which parties shall each acknowledge receipt of such copies to the complainant.

(2)  FACT FINDING.--The Department of Legal Affairs shall:

(a)  Receive any allegation of a personnel action prohibited by s. 112.3187, including a proposed or potential action, and conduct informal fact finding regarding any allegation under this section, to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel action under s. 112.3187 has occurred, is occurring, or is to be taken.

(b)  Notify the complainant, within 15 days after receiving a complaint, that the complaint has been received by the department.

(c)  Within 90 days after receiving the complaint, provide the Public Counsel, the agency head, and the complainant with a fact-finding report that may include recommendations to the parties or proposed resolution of the complaint. The fact-finding report shall be presumed admissible in any subsequent or related administrative or judicial review.

(3)  CORRECTIVE ACTION AND TERMINATION OF INVESTIGATION.--

(a)  The Public Counsel established by s. 350.061, in accordance with this act and for the sole purpose of this act, is empowered to:

1.  Receive and investigate complaints from employees alleging retaliation by state agencies, as the term "state agency" is defined in s. 216.011.

2.  Protect employees and applicants for employment with such agencies from prohibited personnel practices under s. 112.3187.

3.  Petition for stays and petition for corrective actions, including, but not limited to, temporary reinstatement.

4.  Recommend disciplinary proceedings pursuant to investigation and appropriate agency rules and procedures.

5.  Coordinate with the Chief Inspector General in the Executive Office of the Governor and the Department of Legal Affairs to receive, review, and forward to appropriate agencies, legislative entities, or the Department of Law Enforcement disclosures of a violation of any law, rule, or regulation, or disclosures of gross mismanagement, malfeasance, misfeasance, nonfeasance, neglect of duty, or gross waste of public funds.

6.  Review rules pertaining to personnel matters issued or proposed by the Department of Management Services, the Public Employees Relations Commission, and other agencies, and, if the Public Counsel finds that any rule or proposed rule, on its face or as implemented, requires the commission of a prohibited personnel practice, provide a written comment to the appropriate agency.

7.  Investigate, request assistance from other governmental entities, and, if appropriate, bring actions concerning, allegations of retaliation by state agencies under subparagraph 1.

8.  Administer oaths, examine witnesses, take statements, issue subpoenas, order the taking of depositions, order responses to written interrogatories, and make appropriate motions to limit discovery, pursuant to investigations under subparagraph 1.

9.  Intervene or otherwise participate, as a matter of right, in any appeal or other proceeding arising under this section before the Public Employees Relations Commission or any other appropriate agency, except that the Public Counsel must comply with the rules of the commission or other agency and may not seek corrective action or intervene in an appeal or other proceeding without the consent of the person protected under ss. 112.3187-112.31895.

10.  Conduct an investigation, in the absence of an allegation, to determine whether reasonable grounds exist to believe that a prohibited action or a pattern of prohibited action has occurred, is occurring, or is to be taken.

(b)  Within 15 days after receiving a complaint that a person has been discharged from employment allegedly for disclosing protected information under s. 112.3187, the Public Counsel shall review the information and determine whether temporary reinstatement is appropriate under s. 112.3187(9)(f). If the Public Counsel so determines, he or she shall apply for an expedited order from the appropriate agency or circuit court for the immediate reinstatement of the employee who has been discharged subsequent to the disclosure made under s. 112.3187, pending the issuance of the final order on the complaint.

(c)  The Public Counsel shall notify a complainant of the status of the investigation and any action taken by the Public Counsel at such times as the Public Counsel considers appropriate.

(d)  The Public Counsel shall review the fact-finding reports submitted by the Department of Legal Affairs and may rely upon the findings and recommendations of those reports.

(e)  If the Public Counsel is unable to conciliate a complaint within 60 days after receipt of the fact-finding report, the Public Counsel shall terminate the investigation. Upon termination of any investigation, the Public Counsel shall notify the complainant and the agency head of the termination of the investigation, providing a summary of relevant facts found during the investigation and the reasons for terminating the investigation. A written statement under this paragraph is presumed admissible as evidence in any judicial or administrative proceeding but is not admissible without the consent of the complainant.

(f)

1.  The Public Counsel may request an agency or circuit court to order a stay, on such terms as the court requires, of any personnel action for 45 days if the Public Counsel determines that reasonable grounds exist to believe that a prohibited personnel action has occurred, is occurring, or is to be taken. The Public Counsel may request that such stay be extended for appropriate periods of time.

2.  If, in connection with any investigation, the Public Counsel determines that reasonable grounds exist to believe that a prohibited action has occurred, is occurring, or is to be taken which requires corrective action, the Public Counsel shall report the determination together with any findings or recommendations to the agency head and may report that determination and those findings and recommendations to the Governor and the Comptroller. The Public Counsel may include in the report recommendations for corrective action to be taken.

3.  If, after 20 days, the agency does not implement the recommended action, the Public Counsel shall terminate the investigation and notify the complainant of the right to appeal under subsection (4), or may petition the agency for corrective action under this subsection.

4.  If the Public Counsel finds, in consultation with the Department of Legal Affairs or the individual subject to the prohibited action, that the agency has implemented the corrective action, the Public Counsel shall file such finding with the agency head, together with any written comments that the individual provides, and terminate the investigation.

(g)  If the Public Counsel finds that there are no reasonable grounds to believe that a prohibited personnel action has occurred, is occurring, or is to be taken, he or she shall terminate the investigation.

(h)

1.  If, in connection with any investigation under this section, it is determined that reasonable grounds exist to believe that a criminal violation has occurred which has not been previously reported, the Public Counsel shall report this determination to the Department of Law Enforcement and to the state attorney having jurisdiction over the matter.

2.  If an alleged criminal violation has been reported, the Public Counsel shall confer with the Department of Law Enforcement and the state attorney before proceeding with the investigation of the prohibited personnel action and may defer the investigation pending completion of the criminal investigation and proceedings. The Public Counsel shall inform the complainant of the decision to defer the investigation and, if appropriate, of the confidentiality of the investigation.

(i)  If, in connection with any investigation under this section, the Public Counsel determines that reasonable grounds exist to believe that a violation of a law, rule, or regulation has occurred, other than a criminal violation or a prohibited action under this section, the Public Counsel may report such violation to the head of the agency involved. Within 30 days after the agency receives the report, the agency head shall provide to the Public Counsel a certification that states that the head of the agency has personally reviewed the report and indicates what action has been or is to be taken and when the action will be completed.

(j)  During any investigation under this section, disciplinary action may not be taken against any employee of a state agency, as the term "state agency" is defined in s. 216.011, for reporting an alleged prohibited personnel action that is under investigation, or for reporting any related activity, or against any employee for participating in an investigation without notifying the Public Counsel.

(k)  The Public Counsel may also petition for an award of reasonable attorney's fees and expenses from a state agency, as the term "state agency" is defined in s. 216.011, pursuant to s. 112.3187(9).

(4)  RIGHT TO APPEAL.--

(a)  Not more than 60 days after receipt of a notice of termination of the investigation from the Public Counsel, the complainant may file, with the Public Employees Relations Commission, a complaint against the employer-agency regarding the alleged prohibited personnel action. The Public Employees Relations Commission shall have jurisdiction over such complaints under ss. 112.3187 and 447.503(4) and (5).

(b)  Judicial review of any final order of the commission shall be as provided in s. 120.68.

History.--s. 14, ch. 92-316; s. 4, ch. 93-57; s. 703, ch. 95-147.