Senate Bill sb0148

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    Florida Senate - 2004                                   SB 148

    By Senator Saunders





    37-77-04

  1                      A bill to be entitled

  2         An act relating to ethics; amending s.

  3         112.3148, F.S.; providing that gifts are valued

  4         at fair market value for reporting purposes;

  5         amending s. 112.317, F.S.; authorizing the

  6         Attorney General to collect fees and costs

  7         associated with collecting civil and

  8         restitution penalties imposed for ethics

  9         violations; amending s. 112.321, F.S.;

10         clarifying when a vacancy exists on the Florida

11         Commission on Ethics and providing procedures

12         for filling vacancies; amending s. 112.3231,

13         F.S.; clarifying time limitations for

14         complaints alleging an ethics violation;

15         amending s. 112.324, F.S.; authorizing the

16         Commission on Ethics to initiate investigations

17         under certain circumstances; providing an

18         effective date.

19  

20  Be It Enacted by the Legislature of the State of Florida:

21  

22         Section 1.  Paragraph (a) of subsection (7) of section

23  112.3148, Florida Statutes, is amended to read:

24         112.3148  Reporting and prohibited receipt of gifts by

25  individuals filing full or limited public disclosure of

26  financial interests and by procurement employees.--

27         (7)(a)  The value of a gift provided to a reporting

28  individual or procurement employee shall be its fair market

29  value determined using actual cost to the donor, less taxes

30  and gratuities, except as otherwise provided in this

31  subsection, and, with respect to personal services provided by

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 1  the donor, the reasonable and customary charge regularly

 2  charged for such service in the community in which the service

 3  is provided shall be used.  If additional expenses are

 4  required as a condition precedent to eligibility of the donor

 5  to purchase or provide a gift and such expenses are primarily

 6  for the benefit of the donor or are of a charitable nature,

 7  such expenses shall not be included in determining the value

 8  of the gift.

 9         Section 2.  Subsection (2) of section 112.317, Florida

10  Statutes, is amended to read:

11         112.317  Penalties.--

12         (2)  In any case in which the commission finds a

13  violation of this part or of s. 8, Art. II of the State

14  Constitution and the proper disciplinary official or body

15  under s. 112.324 imposes recommends a civil penalty or

16  restitution penalty, the Attorney General shall bring a civil

17  action to recover such penalty. No defense may be raised in

18  the civil action to enforce the civil penalty or order of

19  restitution that could have been raised by judicial review of

20  the administrative findings and recommendations of the

21  commission by certiorari to the district court of appeal. The

22  Attorney General may collect any costs, attorney's fees,

23  expert witness fees, or other costs of collection incurred in

24  bringing such actions.

25         Section 3.  Subsection (1) of section 112.321, Florida

26  Statutes, is amended to read:

27         112.321  Membership, terms; travel expenses; staff.--

28         (1)  The commission shall be composed of nine members.

29  Five of these members shall be appointed by the Governor, no

30  more than three of whom shall be from the same political

31  party, subject to confirmation by the Senate. One member

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 1  appointed by the Governor shall be a former city or county

 2  official and may be a former member of a local planning or

 3  zoning board which has only advisory duties. Two members shall

 4  be appointed by the Speaker of the House of Representatives,

 5  and two members shall be appointed by the President of the

 6  Senate. Neither the Speaker of the House of Representatives

 7  nor the President of the Senate shall appoint more than one

 8  member from the same political party. Of the nine members of

 9  the commission, no more than five members may shall be from

10  the same political party at any one time. If any member of the

11  commission changes party affiliation and as a result more than

12  five members have the same party affiliation, a vacancy shall

13  exist in that office as of the date of the party change. The

14  officer who appointed the member who changed parties shall

15  fill the vacancy in accordance with this subsection. A No

16  member may not hold any public employment. All members shall

17  serve 2-year terms. A No member may not shall serve more than

18  two full terms in succession. Any member of the commission may

19  be removed for cause by majority vote of the Governor, the

20  President of the Senate, the Speaker of the House of

21  Representatives, and the Chief Justice of the Supreme Court.

22         Section 4.  Subsections (1) and (3) of section

23  112.3231, Florida Statutes, are amended to read:

24         112.3231  Time limitations.--

25         (1)  On or after October 1, 1993, All sworn complaints

26  alleging a violation of this part, or of any other breach of

27  the public trust within the jurisdiction of the Commission on

28  Ethics under s. 8, Art. II of the State Constitution, must

29  shall be filed with the commission within 5 years after of the

30  alleged violation or other breach of the public trust. For

31  information or referrals received by the commission pursuant

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 1  to s. 112.324, the determination by at least seven members

 2  that the information or referral is sufficient to indicate a

 3  breach of the public trust must be made within 5 years after

 4  the alleged violation.

 5         (3)  The applicable period of limitation is tolled on

 6  the day a sworn complaint against the public officer,

 7  employee, or candidate is filed with the Commission on Ethics.

 8  For information or referrals received by the commission

 9  pursuant to s. 112.324, the applicable period of limitation is

10  tolled upon a determination by at least seven of the members

11  that the information or referral is sufficient to indicate a

12  breach of the public trust. If it can be concluded from the

13  face of the complaint that the applicable period of limitation

14  has run, the complaint shall be dismissed and the commission

15  shall issue a public report.

16         Section 5.  Section 112.324, Florida Statutes, is

17  amended to read:

18         112.324  Procedures on complaints of violations; public

19  records and meeting exemptions.--

20         (1)(a)  Upon a written complaint executed on a form

21  prescribed by the commission and signed under oath or

22  affirmation by any person, The commission shall investigate

23  any alleged violation of this part or any other alleged breach

24  of the public trust within the jurisdiction of the commission

25  as provided in s. 8(f), Art. II of the State Constitution:

26         1.  Upon a written complaint executed on a form

27  prescribed by the commission and signed under oath or

28  affirmation by any person;

29         2.  Upon receipt of reliable and publicly disseminated

30  information that at least seven of the members of the

31  commission consider sufficient to indicate a breach of the

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 1  public trust; however, commission staff may not undertake a

 2  formal investigation other than collecting publicly

 3  disseminated information prior to a determination of

 4  sufficiency by at least seven members of the commission; or

 5         3.  Upon receipt of a written referral of a possible

 6  violation of this part or other possible breach of the public

 7  trust from the Governor, the Chief Financial Officer, a State

 8  Attorney, the Executive Director of the Department of Law

 9  Enforcement, or the Statewide Prosecutor which at least seven

10  of the members of the commission consider sufficient to

11  indicate a breach of the public trust in accordance with

12  procedures set forth herein.

13         (b)  Within 5 days after receipt of a complaint or

14  other information provided pursuant to this paragraph, by the

15  commission shall transmit, a copy shall be transmitted to the

16  alleged violator.

17         (2)  The complaint and records relating to the

18  complaint or to any preliminary investigation held by the

19  commission or its agents or by a Commission on Ethics and

20  Public Trust established by any county defined in s.

21  125.011(1), are confidential and exempt from the provisions of

22  s. 119.07(1) and s. 24(a), Art. I of the State Constitution,

23  and any proceeding conducted by the commission or a Commission

24  on Ethics and Public Trust, pursuant to a complaint or

25  preliminary investigation, is exempt from the provisions of s.

26  286.011, s. 24(b), Art. I of the State Constitution, and s.

27  120.525, until the complaint is dismissed as legally

28  insufficient, until the alleged violator requests in writing

29  that such records and proceedings be made public, or until the

30  commission or a Commission on Ethics and Public Trust

31  determines, based on such investigation, whether probable

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 1  cause exists to believe that a violation has occurred.  In no

 2  event shall A complaint, information, or referral under this

 3  part against a candidate in any general, special, or primary

 4  election may not be filed nor may or any intention of filing

 5  such a complaint be disclosed on the day of any such election

 6  or within the 5 days immediately preceding the date of the

 7  election.

 8         (3)  A preliminary investigation shall be undertaken by

 9  the commission of each legally sufficient complaint,

10  information, or referral over which the commission has

11  jurisdiction to determine whether there is probable cause to

12  believe that a violation has occurred. If, upon completion of

13  the preliminary investigation, the commission finds no

14  probable cause to believe that this part has been violated or

15  that any other breach of the public trust has been committed,

16  the commission shall dismiss the complaint or proceeding with

17  the issuance of a public report to the complainant and the

18  alleged violator, stating with particularity its reasons for

19  dismissal of the complaint.  At that time, the complaint, the

20  proceeding, and all materials relating to the complaint and

21  proceeding shall become a matter of public record. If the

22  commission finds from the preliminary investigation probable

23  cause to believe that this part has been violated or that any

24  other breach of the public trust has been committed, it shall

25  so notify the complainant, if applicable, and the alleged

26  violator in writing.  Such notification and all documents made

27  or received in the disposition of the complaint or proceeding

28  shall then become public records. Upon request submitted to

29  the commission in writing, any person who the commission finds

30  probable cause to believe has violated any provision of this

31  part or has committed any other breach of the public trust

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 1  shall be entitled to a public hearing.  Such person shall be

 2  deemed to have waived the right to a public hearing if the

 3  request is not received within 14 days following the mailing

 4  of the probable cause notification required by this

 5  subsection. However, the commission may, on its own motion,

 6  require a public hearing, may conduct such further

 7  investigation as it deems necessary, or and may enter into

 8  such stipulations and settlements as it finds to be just and

 9  in the best interest of the state.  The commission is without

10  jurisdiction to, and no respondent may voluntarily or

11  involuntarily, enter into a stipulation or settlement that

12  which imposes any penalty, including, but not limited to, a

13  sanction or admonition or any other penalty contained in s.

14  112.317. Penalties shall be imposed only by the appropriate

15  disciplinary authority as designated in this section.

16         (4)  If, in cases pertaining to members of the

17  Legislature, upon completion of a full and final investigation

18  by the commission, the commission finds that there has been a

19  violation of this part or of any provision of s. 8, Art. II of

20  the State Constitution, the commission shall forward a copy of

21  the complaint, information, or referral and its findings by

22  certified mail to the President of the Senate or the Speaker

23  of the House of Representatives, whichever is applicable, who

24  shall refer the matter complaint to the appropriate committee

25  for investigation and action, which committee shall be

26  governed by the rules of its respective house.  It shall be

27  the duty of The committee shall to report its final action

28  upon the matter complaint to the commission within 90 days

29  after of the date of transmittal to the respective house. Upon

30  request of the committee, the commission shall submit a

31  recommendation as to what penalty, if any, should be imposed.

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 1  In the case of a member of the Legislature, the house in which

 2  the member serves shall have the power to invoke the penalty

 3  provisions of this part.

 4         (5)  If, in cases pertaining to complaints or

 5  proceedings against impeachable officers, upon completion of a

 6  full and final investigation by the commission, the commission

 7  finds that there has been a violation of this part or of any

 8  provision of s. 8, Art. II of the State Constitution, and the

 9  commission finds that the violation may constitute grounds for

10  impeachment, the commission shall forward a copy of the

11  complaint, information, or referral and its findings by

12  certified mail to the Speaker of the House of Representatives,

13  who shall refer the matter complaint to the appropriate

14  committee for investigation and action, which committee shall

15  be governed by the rules of the House of Representatives. It

16  shall be the duty of The committee shall to report its final

17  action upon the matter complaint to the commission within 90

18  days after of the date of transmittal.

19         (6)  If the commission finds that there has been a

20  violation of this part or of any provision of s. 8, Art. II of

21  the State Constitution by an impeachable officer other than

22  the Governor, and the commission recommends public censure and

23  reprimand, forfeiture of a portion of the officer's salary, a

24  civil penalty, or restitution, the commission shall report its

25  findings and recommendation of disciplinary action to the

26  Governor, who shall have the power to invoke the penalty

27  provisions of this part.

28         (7)  If the commission finds that there has been a

29  violation of this part or of any provision of s. 8, Art. II of

30  the State Constitution by the Governor, and the commission

31  recommends public censure and reprimand, forfeiture of a

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 1  portion of the Governor's salary, a civil penalty, or

 2  restitution, the commission shall report its findings and

 3  recommendation of disciplinary action to the Attorney General,

 4  who shall have the power to invoke the penalty provisions of

 5  this part.

 6         (8)  If, in cases pertaining to persons other than

 7  complaints other than complaints against impeachable officers

 8  or members of the Legislature, upon completion of a full and

 9  final investigation by the commission, the commission finds

10  that there has been a violation of this part or of s. 8, Art.

11  II of the State Constitution, it shall be the duty of the

12  commission shall to report its findings and recommend

13  appropriate action to the proper disciplinary official or body

14  as follows, and such official or body may shall have the power

15  to invoke the penalty provisions of this part, including

16  ordering the power to order the appropriate elections official

17  to remove a candidate from the ballot for a violation of s.

18  112.3145 or s. 8(a) and (i), Art. II of the State

19  Constitution:

20         (a)  The President of the Senate and the Speaker of the

21  House of Representatives, jointly, in any case concerning the

22  Public Counsel, members of the Public Service Commission,

23  members of the Public Service Commission Nominating Council,

24  the Auditor General, the director of the Office of Program

25  Policy Analysis and Government Accountability, or members of

26  the Legislative Committee on Intergovernmental Relations.

27         (b)  The Supreme Court, in any case concerning an

28  employee of the judicial branch.

29         (c)  The President of the Senate, in any case

30  concerning an employee of the Senate; the Speaker of the House

31  of Representatives, in any case concerning an employee of the

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 1  House of Representatives; or the President and the Speaker,

 2  jointly, in any case concerning an employee of a committee of

 3  the Legislature whose members are appointed solely by the

 4  President and the Speaker or in any case concerning an

 5  employee of the Public Counsel, Public Service Commission,

 6  Auditor General, Office of Program Policy Analysis and

 7  Government Accountability, or Legislative Committee on

 8  Intergovernmental Relations.

 9         (d)  Except as otherwise provided by this part, the

10  Governor, in the case of any other public officer, public

11  employee, former public officer or public employee, candidate,

12  or former candidate.

13         (e)  The President of the Senate or the Speaker of the

14  House of Representatives, whichever is applicable, in any case

15  concerning a former member of the Legislature who has violated

16  a provision applicable to former members or whose violation

17  occurred while he or she was a member of the Legislature.

18         (9)  In addition to reporting its findings to the

19  proper disciplinary body or official, the commission shall

20  report these findings to the state attorney or any other

21  appropriate official or agency having authority to initiate

22  prosecution when violation of criminal law is indicated.

23         (10)  Notwithstanding the foregoing procedures of this

24  section, a sworn complaint, information, or referral against

25  any member or employee of the Commission on Ethics for

26  violation of this part or of s. 8, Art. II of the State

27  Constitution shall be filed with the President of the Senate

28  and the Speaker of the House of Representatives.  Each

29  presiding officer shall, after determining that there are

30  sufficient grounds for review, appoint three members of his or

31  her their respective body bodies to a special joint committee

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 1  to who shall investigate the allegations complaint.  The

 2  members shall elect a chair from among their number.  If the

 3  special joint committee finds insufficient evidence to

 4  establish probable cause to believe a violation of this part

 5  or of s. 8, Art. II of the State Constitution has occurred, it

 6  shall dismiss the matter complaint. If, upon completion of its

 7  preliminary investigation, the committee finds sufficient

 8  evidence to establish probable cause to believe a violation

 9  has occurred, the chair thereof shall transmit such findings

10  to the Governor, who shall convene a meeting of the Governor,

11  the President of the Senate, the Speaker of the House of

12  Representatives, and the Chief Justice of the Supreme Court to

13  take such final action on the matter complaint as they

14  consider shall deem appropriate, consistent with the penalty

15  provisions of this part. Upon request of a majority of the

16  Governor, the President of the Senate, the Speaker of the

17  House of Representatives, and the Chief Justice of the Supreme

18  Court, the special joint committee shall submit a

19  recommendation as to what penalty, if any, should be imposed.

20         (11)  Notwithstanding the provisions of subsections

21  (1)-(8), the commission may, at its discretion, dismiss any

22  complaint or proceeding at any stage of disposition if should

23  it finds determine that the public interest would not be

24  served by proceeding further, in which case the commission

25  shall issue a public report stating with particularity its

26  reasons for the dismissal.

27         Section 6.  This act shall take effect October 1, 2004.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises provisions relating to the code of ethics for
      public officers and employees. Provides that gifts are to
 4    be valued at fair market value. Authorizes the Attorney
      General to obtain reimbursement of fees and costs
 5    associated with collecting civil and restitution
      penalties imposed for ethics violations. Provides for
 6    filling vacancies on the Commission on Ethics and
      authorizes the commission to initiate investigations
 7    under certain circumstances.

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