Florida Senate - 2020 SB 450
By Senator Brandes
1 A bill to be entitled
2 An act relating to the Whistleblower’s Act; amending
3 s. 112.3187, F.S.; revising a short title; revising
4 legislative intent; revising, reordering, and
5 providing definitions; revising the actions that an
6 agency or independent contractor is prohibited from
7 taking against an employee who participates in
8 protected activity or discloses certain information;
9 specifying that whistleblower remedies and protections
10 do not apply to certain persons; revising requirements
11 related to the disclosure of information and methods
12 of reporting the information; revising requirements
13 related to remedies; revising affirmative defenses;
14 amending s. 112.3188, F.S.; authorizing additional
15 persons to disclose confidential and exempt
16 information; providing for construction; conforming
17 cross-references to changes made by the act; amending
18 s. 112.3189, F.S.; revising applicability of
19 provisions relating to investigative procedures upon
20 receipt of whistleblower information; revising powers
21 and responsibilities of the Chief Inspector General
22 and agency inspectors general; revising reporting
23 requirements; reordering and amending s. 112.31895,
24 F.S.; revising investigative procedures in response to
25 retaliatory actions; revising complaint requirements;
26 revising fact-finding responsibilities of the Florida
27 Commission on Human Relations; revising commission
28 powers and responsibilities; providing requirements
29 for the termination of an investigation; amending ss.
30 14.32, 20.055, 112.31901, and 760.06, F.S.; conforming
31 provisions and cross-references to changes made by the
32 act; providing an effective date.
34 Be It Enacted by the Legislature of the State of Florida:
36 Section 1. Section 112.3187, Florida Statutes, is amended
37 to read:
38 112.3187 Retaliatory
Adverse action against employee for
39 disclosing information of specified nature prohibited; employee
40 remedy and relief.—
41 (1) SHORT TITLE.—Sections 112.3187-112.31895 may be cited
42 as the “Florida Public Whistleblower’s Whistle-blower’s Act.”
43 (2) LEGISLATIVE INTENT.—It is the intent of the Legislature
44 to prevent agencies or independent contractors from taking
45 retaliatory action against an employee who reports to an
46 appropriate agency or supervisory official violations of law on
47 the part of a public employer or independent contractor which
48 that create a substantial and specific danger to the public’s
49 health, safety, or welfare. It is further the intent of the
50 Legislature to prevent agencies or independent contractors from
51 taking retaliatory action against any person who discloses
52 information to an appropriate agency or supervisory official
53 alleging acts of gross mismanagement, gross malfeasance, gross
54 misfeasance, gross misconduct improper use of governmental
55 office, gross waste of public funds, Medicaid fraud or program
56 abuse, or any other abuse or gross neglect of duty on the part
57 of an agency, public officer, or employee.
58 (3) DEFINITIONS.—As used in this act, unless otherwise
59 specified, the following words or terms shall have the meanings
61 (a) “Agency” means any state, regional, county, local, or
62 municipal government entity, whether executive, judicial, or
63 legislative; any official, officer, department, division,
64 bureau, commission, authority, or political subdivision therein;
65 the Citizens Property Insurance Corporation; the Florida
66 Commission on Human Relations; or any public school, community
67 college, or state university.
68 (b) “Employee” means a person who performs services for,
69 and under the control and direction of, or contracts with, an
70 agency or independent contractor for wages or other
71 remuneration. The term includes a current or former employee or
72 an applicant for employment.
73 (h) (c) “Retaliatory Adverse personnel action” means the
74 discharge, suspension, transfer, or demotion of an any employee
75 or the withholding of bonuses, the reduction in salary or
76 benefits, or any other adverse action taken against an employee
77 within the terms and conditions of employment by an agency or
78 independent contractor which may dissuade a reasonable employee
79 from participating in any protected activity described in
80 subparagraphs (g)1. and 2.
81 (c) “Gross malfeasance” or “gross misconduct” means a
82 willful transgression of law or established rule which is of
83 such a degree or recurrence as to show a substantial disregard
84 of the employer’s interests or the employee’s duties and
85 obligations to the public.
86 (d) “Gross misfeasance” means misconduct or wrongdoing by a
87 public employee of such severity or frequency as to show
88 substantial disregard of the state’s or state contractor’s
89 interests or the employee’s duties and obligations to the
91 (f) (d) “Independent contractor” means a person, other than
92 an agency, engaged in any business and who enters into a
93 contract, including a provider agreement, with an agency.
94 (e) (e) “Gross mismanagement” means a continuous pattern of
95 managerial abuses, wrongful or arbitrary and capricious actions,
96 or fraudulent or criminal conduct which may have a substantial
97 adverse economic impact.
98 (g) “Protected activity” means any of the following:
99 1. The reporting to an appropriate agency or supervisory
100 official of violations of law on the part of a public employer
101 or independent contractor which create a substantial and
102 specific danger to the public’s health, safety, or welfare.
103 2. The disclosure of information to an appropriate agency
104 or supervisory official alleging acts of gross mismanagement,
105 gross malfeasance, gross misfeasance, gross misconduct, gross
106 waste of public funds, Medicaid fraud or program abuse, or gross
107 neglect of duty on the part of an agency, a public officer, or
108 an employee.
109 3. Participation in an investigation, hearing, or other
110 inquiry by an agency or federal government entity pursuant to
111 this section.
112 4. Refusal to participate in any retaliatory action
113 prohibited by this section.
114 (i) “State agency” means any official, officer, commission,
115 board, authority, council, committee, or department of the
116 executive branch of state government.
117 (4) ACTIONS PROHIBITED.—
118 (a) An agency or independent contractor may shall not
119 dismiss, discipline, or take any other retaliatory adverse
120 personnel action against an employee for participating in
121 protected activity or for disclosing information pursuant to
122 subsection (6) the provisions of this section.
123 (b) An agency or independent contractor shall not take any
124 adverse action that affects the rights or interests of a person
125 in retaliation for the person’s disclosure of information under
126 this section.
127 (c ) The provisions of This subsection is shall not be
128 applicable when an employee or person discloses information
129 known, or which reasonably should be known, by the employee or
130 person to be false.
131 (c) A remedy or protection under ss. 112.3187-112.31895
132 does not apply to:
133 1. A person who has committed, or intentionally
134 participated in committing, a violation or suspected violation
135 for which protection under ss. 112.3187-112.31895 is being
137 2. A person while he or she is under the care, custody, or
138 control of the state correctional system, or after release from
139 the care, custody, or control of the state correctional system,
140 with respect to circumstances that occurred during any period of
142 (5) NATURE OF INFORMATION DISCLOSED.—
143 (a) The information disclosed by employees and persons
144 under this section must include:
145 1. (a) Any violation or suspected violation of any federal,
146 state, or local law, rule, or regulation committed by an
147 employee or agent of an agency or independent contractor which
148 creates and presents a substantial and specific danger to the
149 public’s health, safety, or welfare; or .
150 2. (b) Any act or reasonably suspected act of gross
151 mismanagement, gross malfeasance, gross misfeasance, gross
152 misconduct, gross waste of public funds, suspected or actual
153 Medicaid fraud or program abuse, or gross neglect of duty
154 committed by an employee or agent of an agency or independent
156 (b) Information disclosed by an employee or a former
157 employee of an independent contractor must relate to provisions
158 of the contract between the agency and the independent
160 (6) TO WHOM INFORMATION DISCLOSED AND METHODS OF
162 (a) Information disclosed under this section alleging an
163 action on the part of a public employer or an independent
164 contractor which creates a substantial and specific danger to
165 the public’s health, safety, or welfare, or alleging gross waste
166 of public funds or any other abuse or gross neglect of duty on
167 the part of an agency, a public officer, or an employee, must be
168 disclosed to the Chief Inspector General, agency inspector
169 general or employee designated as agency inspector general under
170 s. 112.3189(1), inspectors general under s. 20.055, or the
171 Florida Commission on Human Relations.
172 (b) The information disclosed by an employee or a person
173 pursuant to this subsection or subsection (5) must be submitted
174 in the form of a written and signed complaint to one of the
176 1. The employee’s supervisory official, the Chief Inspector
177 General as defined in s. 14.32(1), the agency inspector general,
178 the employee designated as agency inspector general under s.
179 112.3189(1), inspectors general under s. 20.055, or to the
180 Florida Commission on Human Relations. Employees and independent
181 contractors of the Chief Inspector General, the employee
182 designated as an agency inspector general, or the Florida
183 Commission on Human Relations must meet the same requirements as
184 others affected by this section; or
185 2. An agency or a federal governmental entity that has
186 authority to investigate, police, manage, or otherwise remedy
187 the violation or act.
188 (c) If a disclosure is related to a local governmental
189 entity, including any regional, county, or municipal entity;
190 special district; community college district; or school
191 district, or any political subdivision thereof, the information
192 must be disclosed to a chief executive officer, as defined in s.
193 447.203(9), or other appropriate local official.
194 (d) Information disclosed to any other person or entity
195 does not qualify the employee or person for protection under
196 this section The information disclosed under this section must
197 be disclosed to any agency or federal government entity having
198 the authority to investigate, police, manage, or otherwise
199 remedy the violation or act, including, but not limited to, the
200 Office of the Chief Inspector General, an agency inspector
201 general or the employee designated as agency inspector general
202 under s. 112.3189(1) or inspectors general under s. 20.055, the
203 Florida Commission on Human Relations, and the whistle-blower’s
204 hotline created under s. 112.3189. However, for disclosures
205 concerning a local governmental entity, including any regional,
206 county, or municipal entity, special district, community college
207 district, or school district or any political subdivision of any
208 of the foregoing, the information must be disclosed to a chief
209 executive officer as defined in s. 447.203(9) or other
210 appropriate local official.
211 (7) EMPLOYEES AND PERSONS PROTECTED.—This section protects
212 employees and persons who disclose information on their own
213 initiative in a written and signed complaint; who are requested
214 to participate in an investigation, hearing, or other inquiry
215 conducted by any agency or federal government entity; who refuse
216 to participate in any adverse action prohibited by this section;
217 or who initiate a complaint through the whistle-blower’s hotline
218 or the hotline of the Medicaid Fraud Control Unit of the
219 Department of Legal Affairs; or employees who file any written
220 complaint to their supervisory officials or employees who submit
221 a complaint to the Chief Inspector General in the Executive
222 Office of the Governor, to the employee designated as agency
223 inspector general under s. 112.3189(1), or to the Florida
224 Commission on Human Relations. The provisions of this section
225 may not be used by a person while he or she is under the care,
226 custody, or control of the state correctional system or, after
227 release from the care, custody, or control of the state
228 correctional system, with respect to circumstances that occurred
229 during any period of incarceration. No remedy or other
230 protection under ss. 112.3187-112.31895 applies to any person
231 who has committed or intentionally participated in committing
232 the violation or suspected violation for which protection under
233 ss. 112.3187-112.31895 is being sought.
234 (7) (8) REMEDIES.—
235 (a) Any employee of or applicant for employment with any
236 state agency or an independent contractor of a state agency, as
237 the term “state agency” is defined in subsection (3) s. 216.011,
238 who is discharged, disciplined, or subjected to other
239 retaliatory adverse personnel action , or denied employment,
240 because he or she engaged in an activity protected by this
241 section may file a complaint with , which complaint must be made
242 in accordance with s. 112.31895. Upon receipt of notice from the
243 Florida Commission on Human Relations. The complaint must be
244 made in accordance with the requirements of s. 112.31895 of
245 termination of the investigation, the complainant may elect to
246 pursue the administrative remedy available under s. 112.31895 or
247 bring a civil action within 180 days after receipt of the
249 (b) Within 60 days after the action prohibited by this
250 section, any local public employee protected by this section may
251 file a complaint with the appropriate local governmental
252 authority, if that authority has established by ordinance an
253 administrative procedure for handling such complaints or has
254 contracted with the Division of Administrative Hearings under s.
255 120.65 to conduct hearings under this section. The
256 administrative procedure created by ordinance must provide for
257 the complaint to be heard by a panel of impartial persons
258 appointed by the appropriate local governmental authority. Upon
259 hearing the complaint, the panel must make findings of fact and
260 conclusions of law for a final decision by the local
261 governmental authority. Within 180 days after entry of a final
262 decision by the local governmental authority, the public
263 employee who filed the complaint may bring a civil action in any
264 court of competent jurisdiction. If the local governmental
265 authority has not established an administrative procedure by
266 ordinance or contract, a local public employee may, within 180
267 days after the action prohibited by this section, bring a civil
268 action in a court of competent jurisdiction. For the purpose of
269 this paragraph, the term “local governmental authority” includes
270 any regional, county, or municipal entity, special district,
271 community college district, or school district or any political
272 subdivision of any of the foregoing.
273 (c) Any other person protected by this section may, after
274 exhausting all available contractual or administrative remedies,
275 bring a civil action in any court of competent jurisdiction
276 within 180 days after the action prohibited by this section.
277 (8) (9) RELIEF.—In any action brought under this section,
278 the relief must include the following:
279 (a) Reinstatement of the employee to the same position held
280 before the retaliatory adverse action was commenced, or to an
281 equivalent position or reasonable front pay as alternative
283 (b) Reinstatement of the employee’s full fringe benefits
284 and seniority rights, as appropriate.
285 (c) Compensation, if appropriate, for lost wages, benefits,
286 or other lost remuneration caused by the retaliatory adverse
288 (d) Payment of reasonable costs, including attorney
289 attorney’s fees, to a substantially prevailing employee, or to
290 the prevailing employer if the employee filed a frivolous action
291 in bad faith.
292 (e) Issuance of an injunction, if appropriate, by a court
293 of competent jurisdiction.
294 (f) Temporary reinstatement to the employee’s former
295 position or to an equivalent position, pending the final outcome
296 on the complaint, if an employee complains of being discharged
297 in retaliation for a protected disclosure and if a court of
298 competent jurisdiction or the Florida Commission on Human
299 Relations, as applicable under s. 112.31895, determines that the
300 disclosure was not made in bad faith or for a wrongful purpose
301 or occurred after an agency’s initiation of a personnel action
302 against the employee which includes documentation of the
303 employee’s violation of a disciplinary standard or performance
304 deficiency. This paragraph does not apply to an employee of a
306 (9) (10) AFFIRMATIVE DEFENSES.—It shall be an affirmative
307 defense to any action brought pursuant to this section that:
308 (a) The retaliatory adverse action was predicated upon
309 grounds other than, and would have been taken absent, the
310 employee’s or person’s exercise of rights protected by this
312 (b) The employee or person disclosed information that was
313 known, or reasonably should have been known, to be false; or
314 (c) The employee or person disclosed information that was
315 substantially the same as information publicly disclosed:
316 1. In a criminal, civil, or administrative hearing in which
317 the state is a party;
318 2. In a legislative, administrative, inspector general, or
319 other state report; a hearing; an audit; or an investigation; or
320 3. By the news media.
321 (10) (11) EXISTING RIGHTS.—Sections 112.3187-112.31895 do
322 not diminish the rights, privileges, or remedies of an employee
323 under any other law or rule or under any collective bargaining
324 agreement or employment contract; however, the election of
325 remedies in s. 447.401 also applies to whistleblower whistle
326 blower actions.
327 Section 2. Paragraphs (b) and (c) of subsection (2) of
328 section 112.3188, Florida Statutes, are amended, and subsection
329 (3) is added to that section, to read:
330 112.3188 Confidentiality of information given to the Chief
331 Inspector General, internal auditors, inspectors general, local
332 chief executive officers, or other appropriate local officials.—
334 (b) All information received by a local chief executive
335 officer or appropriate local official or information produced or
336 derived from fact-finding or investigations conducted pursuant
337 to the administrative procedure established by ordinance by a
338 local government as authorized by s. 112.3187(7)(b) s.
339 112.3187(8)(b) is confidential and exempt from s. 119.07(1) and
340 s. 24(a), Art. I of the State Constitution, if the information
341 is being received or derived from allegations as set forth in
342 paragraph (1)(a) or paragraph (1)(b) and an investigation is
344 (c) Information deemed confidential under this section may
345 be disclosed by the Chief Inspector General, agency inspector
346 general, chief internal auditor, a member or an employee of the
347 Florida Commission on Human Relations, local chief executive
348 officer, or other appropriate local official receiving the
349 information if the recipient determines that the disclosure of
350 the information is absolutely necessary to prevent a substantial
351 and specific danger to the public’s health, safety, or welfare
352 or to prevent the imminent commission of a crime. Information
353 disclosed under this subsection may be disclosed only to persons
354 who are in a position to prevent the danger to the public’s
355 health, safety, or welfare or to prevent the imminent commission
356 of a crime based on the disclosed information.
357 1. An investigation is active under this section if:
358 a. It is an ongoing investigation or inquiry or collection
359 of information and evidence and is continuing with a reasonable,
360 good faith anticipation of resolution in the foreseeable future;
362 b. All or a portion of the matters under investigation or
363 inquiry are active criminal intelligence information or active
364 criminal investigative information as defined in s. 119.011.
365 2. Notwithstanding sub-subparagraph 1.a., an investigation
366 ceases to be active when:
367 a. The written report required under s. 112.3189(9) has
368 been sent by the Chief Inspector General to the recipients named
369 in s. 112.3189(9);
370 b. It is determined that an investigation is not necessary
371 under s. 112.3189(5); or
372 c. A final decision has been rendered by the local
373 government or by the Division of Administrative Hearings
374 pursuant to s. 112.3187(7)(b) s. 112.3187(8)(b).
375 3. Notwithstanding paragraphs (a), (b), and this paragraph,
376 information or records received or produced under this section
377 which are otherwise confidential under law or exempt from
378 disclosure under chapter 119 retain their confidentiality or
380 4. Any person who willfully and knowingly discloses
381 information or records made confidential under this subsection
382 commits a misdemeanor of the first degree, punishable as
383 provided in s. 775.082 or s. 775.083.
384 (3) The provisions of this section which provide for the
385 confidentiality of specified information supersede the rights,
386 privileges, or remedies of an employee granted under any other
387 law or rule or under any collective bargaining agreement or
388 employment contract which are in conflict.
389 Section 3. Section 112.3189, Florida Statutes, is amended
390 to read:
391 112.3189 Investigative procedures upon receipt of
392 whistleblower whistle-blower information from certain state and
393 state agency independent contractor employees.—
394 (1) This section only applies to the disclosure of
395 information as described in s. 112.3187(5) by an employee or a
396 former employee of, or an applicant for employment with, a state
397 agency, as the term “state agency” is defined in s. 112.3187(3),
398 or by an employee or a former employee of a state agency’s
399 independent contractor s. 216.011 , to the Office of the Chief
400 Inspector General of the Executive Office of the Governor or to
401 the agency inspector general. If an agency does not have an
402 inspector general, the head of the state agency, as defined in
403 s. 112.3187(3) s. 216.011, shall designate an employee, in
404 consultation with the Chief Inspector General, who meets the
405 requirements provided in s. 20.055(4) to receive information
406 described in s. 112.3187(5). For purposes of this section and s.
407 112.3188 only, the employee designated by the head of the state
408 agency is shall be deemed an agency inspector general.
409 (2) To facilitate the receipt of information described in
410 subsection (1), the Chief Inspector General shall periodically
411 maintain an in-state toll-free whistle-blower’s hotline and
412 shall circulate among the various state agencies an advisory for
413 all employees which indicates how to file a whistleblower
414 complaint the existence of the toll-free number and its purpose
415 and provides an address to which written whistle-blower
416 information may be forwarded.
417 (3) When a person alleges information described in s.
418 112.3187(5), the Chief Inspector General or agency inspector
419 general actually receiving such information shall, within 20
420 days of receiving such information, determine:
421 (a) Whether the information disclosed is the type of
422 information described in s. 112.3187(5).
423 (b) Whether the source of the information is a person who
424 is an employee or former employee of, or an applicant for
425 employment with, a state agency, as defined in s. 112.3187(3),
426 or an employee or a former employee of a state agency’s
427 independent contractor s. 216.011.
428 (c) Whether the information actually disclosed demonstrates
429 reasonable cause to suspect that an employee or agent of an
430 agency or independent contractor has violated any federal,
431 state, or local law, rule, or regulation, thereby creating and
432 presenting a substantial and specific danger to the public’s
433 health, safety, or welfare, or has committed an act of gross
434 mismanagement, gross misconduct, gross malfeasance, gross
435 misfeasance, gross waste of public funds, Medicaid fraud or
436 program abuse, or gross neglect of duty.
437 (4) If the Chief Inspector General or agency inspector
438 general under subsection (3) determines that the information
439 disclosed is not the type of information described in s.
440 112.3187(5), or that the source of the information is not a
441 person who is an employee or former employee of, or an applicant
442 for employment with, a state agency, as defined in s.
443 112.3187(3), or an employee or a former employee of a state
444 agency’s independent contractor s. 216.011, or that the
445 information disclosed does not demonstrate reasonable cause to
446 suspect that an employee or agent of an agency or independent
447 contractor has violated any federal, state, or local law, rule,
448 or regulation, thereby creating and presenting a substantial and
449 specific danger to the public’s health, safety, or welfare, or
450 has committed an act of gross mismanagement, gross misconduct,
451 gross malfeasance, gross misfeasance, gross waste of public
452 funds, Medicaid fraud or program abuse, or gross neglect of
453 duty, the Chief Inspector General or agency inspector general
454 shall notify the complainant of such fact and copy and return,
455 upon request of the complainant, any documents and other
456 materials that were provided by the complainant.
457 (5) (a) If the Chief Inspector General or agency inspector
458 general under subsection (3) determines that the information
459 disclosed is the type of information described in s.
460 112.3187(5), that the source of the information is from a person
461 who is an employee or a former employee of, or an applicant for
462 employment with, a state agency, as defined in s. 112.3187(3),
463 or an employee or a former employee of a state agency’s
464 independent contractor s. 216.011, and that the information
465 disclosed demonstrates reasonable cause to suspect that an
466 employee or agent of an agency or independent contractor has
467 violated any federal, state, or local law, rule, or regulation,
468 thereby creating a substantial and specific danger to the
469 public’s health, safety, or welfare, or has committed an act of
470 gross mismanagement, gross misconduct, gross malfeasance, gross
471 misfeasance, gross waste of public funds, Medicaid fraud or
472 program abuse, or gross neglect of duty on the part of an
473 agency, a public officer, or an employee, the Chief Inspector
474 General or agency inspector general making such determination
475 shall then conduct an investigation, unless the Chief Inspector
476 General or the agency inspector general determines, within 30
477 days after receiving the allegations from the complainant, that
478 such investigation is unnecessary. For purposes of this
479 subsection, the Chief Inspector General or the agency inspector
480 general shall consider the following factors, but is not limited
481 to only the following factors, when deciding whether the
482 investigation is not necessary:
483 (a) 1. The gravity of the disclosed information compared to
484 the time and expense of an investigation.
485 (b) 2. The potential for an investigation to yield
486 recommendations that will make state government more efficient
487 and effective.
488 (c) 3. The benefit to state government to have a final
489 report on the disclosed information.
490 (d) 4. Whether the alleged whistleblower whistle-blower
491 information primarily concerns personnel practices that may be
492 investigated under chapter 110.
493 (e) 5. Whether another agency may be conducting an
494 investigation and whether any investigation under this section
495 could be duplicative.
496 (f) 6. The time that has elapsed between the alleged event
497 and the disclosure of the information.
498 (b) If the Chief Inspector General or agency inspector
499 general determines under paragraph (a) that an investigation is
500 not necessary, the Chief Inspector General or agency inspector
501 general making such determination shall:
502 1. Copy and return, upon request of the complainant, any
503 documents and other materials provided by the individual who
504 made the disclosure.
505 2. Inform in writing the head of the state agency for the
506 agency inspector general making the determination that the
507 investigation is not necessary and the individual who made the
508 disclosure of the specific reasons why an investigation is not
509 necessary and why the disclosure will not be further acted on
510 under this section.
511 (6) The agency inspector general may conduct an
512 investigation pursuant to subsection (5) paragraph (5)(a) only
513 if the person transmitting information to the agency inspector
514 general is an employee or a former employee of, or an applicant
515 for employment with, the agency inspector general’s agency, or
516 is an employee or a former employee of the state agency’s
517 independent contractor. The agency inspector general shall:
518 (a) Conduct an investigation with respect to the
519 information and any related matters.
520 (b) Submit to the complainant and the Chief Inspector
521 General, within 90 60 days after the date on which a
522 determination to conduct an investigation is made under
523 subsection (5) paragraph (5)(a), a final written report that
524 sets forth the agency inspector general’s findings, conclusions,
525 and recommendations, except as provided under subsection (11).
526 The complainant shall be advised in writing by the agency
527 inspector general head that the complainant may submit to the
528 Chief Inspector General and agency inspector general comments on
529 the final report within 10 20 days of the date of the report and
530 that such comments will be attached to the final report.
531 (7) If the Chief Inspector General decides an investigation
532 should be conducted pursuant to subsection (5) paragraph (5)(a),
533 the Chief Inspector General shall either:
534 (a) Promptly transmit to the appropriate head of the state
535 agency inspector general the information with respect to which
536 the determination to conduct an investigation was made, and such
537 agency inspector general head shall conduct an investigation and
538 submit to the Chief Inspector General a final written report
539 that sets forth the agency inspector general’s head’s findings,
540 conclusions, and recommendations; or
541 (b)1. Conduct an investigation with respect to the
542 information and any related matters; and
543 2. Submit to the complainant, within 90 60 days after the
544 date on which a determination to conduct an investigation is
545 made under subsection (5) paragraph (5)(a), a final written
546 report that sets forth the Chief Inspector General’s findings,
547 conclusions, and recommendations, except as provided under
548 subsection (11). The complainant shall be advised in writing by
549 the Chief Inspector General that the complainant may submit to
550 the Chief Inspector General comments on the final report within
551 10 20 days of the date of the report and that such comments will
552 be attached to the final report.
553 (c) The Chief Inspector General may require an agency
554 inspector general or the employee designated as agency inspector
555 general under subsection (1) head to conduct an investigation
556 under paragraph (a) only if the information was transmitted to
557 the Chief Inspector General by:
558 1. An employee or a former employee of, or an applicant for
559 employment with, the agency, or an employee or a former employee
560 of the state agency’s independent contractor, that the
561 information concerns; or
562 2. An employee who obtained the information in connection
563 with the performance of the employee’s duties and
565 (8) Final reports required under this section must be
566 reviewed and signed by the person responsible for conducting the
567 investigation (agency inspector general, employee designated as
568 agency inspector general under subsection (1) agency head, or
569 Chief Inspector General) and must include:
570 (a) A summary of the information with respect to which the
571 investigation was initiated.
572 (b) A description of the conduct of the investigation.
573 (c) A summary of any evidence obtained from the
575 (d) A listing of any violation or apparent violation of any
576 law, rule, or regulation.
577 (e) A description of any action taken or planned as a
578 result of the investigation, such as:
579 1. A change in an agency rule, regulation, or practice.
580 2. The restoration of an aggrieved employee.
581 3. A disciplinary action against an employee.
582 4. The referral to the Department of Law Enforcement of any
583 evidence of a criminal violation.
584 (9)(a) A report required of the agency inspector general
585 head under paragraph (7)(a) shall be submitted to the Chief
586 Inspector General and the complainant within 90 60 days after
587 the agency inspector general head receives the complaint from
588 the Chief Inspector General, except as provided under subsection
589 (11). The complainant shall be advised in writing by the agency
590 inspector general head that the complainant may submit to the
591 Chief Inspector General comments on the report within 10 20 days
592 of the date of the report and that such comments will be
593 attached to the final report.
594 (b) Upon receiving a final report required under this
595 section, the Chief Inspector General shall review the report and
596 determine whether the report contains the information required
597 by subsection (8). If the report does not contain the
598 information required by subsection (8), the Chief Inspector
599 General shall determine why and note the reasons on an addendum
600 to the final report.
601 (c) The Chief Inspector General shall transmit any final
602 report under this section, any comments provided by the
603 complainant, and any appropriate comments or recommendations by
604 the Chief Inspector General to the Governor, the Legislative
605 Auditing Committee, the investigating agency, and the Chief
606 Financial Officer.
607 (d) If the Chief Inspector General does not receive the
608 report of the agency inspector general head within the time
609 prescribed in paragraph (a), the Chief Inspector General may
610 conduct the investigation in accordance with paragraph (7)(b) or
611 request that another agency inspector general conduct the
612 investigation in accordance with subsection (6) and shall report
613 the complaint to the Governor, to the Joint Legislative Auditing
614 Committee, and to the investigating agency, together with a
615 statement noting the failure of the agency inspector general
616 head to file the required report.
617 (10) For any time period set forth in subsections (3), (6),
618 (7), and (9), such time period may be extended in writing by the
619 Chief Inspector General for good cause shown.
620 (11) If an investigation under this section produces
621 evidence of a criminal violation, the report may shall not be
622 transmitted to the complainant, and the agency head or agency
623 inspector general shall notify the Chief Inspector General and
624 the Department of Law Enforcement.
625 Section 4. Section 112.31895, Florida Statutes, is
626 reordered and amended to read:
627 112.31895 Investigative procedures in response to
628 retaliatory prohibited personnel actions.—
629 (1) COMPLAINT PROCEDURES.—
630 (a) If a disclosure or other protected activity under s.
631 112.3187 includes or results in alleged retaliatory action
632 retaliation by an employer, the employee or former employee of,
633 or applicant for employment with, a state agency, as defined in
634 s. 112.3187(3), or the employee or former employee of a state
635 agency’s independent contractor who s. 216.011 , that is so
636 affected may file a complaint alleging a retaliatory prohibited
637 personnel action. The , which complaint must be made by filing a
638 written and signed complaint with the Office of the Chief
639 Inspector General in the Executive Office of the Governor or the
640 Florida Commission on Human Relations , no later than 90 60 days
641 after the retaliatory prohibited personnel action.
642 (b) Within 5 three working days after receiving a complaint
643 under this section, the office or officer receiving the
644 complaint shall acknowledge receipt of the complaint and provide
645 copies of the complaint and any other preliminary information
646 available concerning the disclosure of information under s.
647 112.3187 to each of the other parties named in paragraph (a) and
648 to the agency , which parties shall each acknowledge receipt of
649 such copies to the complainant.
650 (3) (2) FACT FINDING.—The Florida Commission on Human
651 Relations shall:
652 (a) Upon receipt of an Receive any allegation of a
653 retaliatory personnel action prohibited by s. 112.3187,
654 including a proposed or potential action, and conduct an
655 investigation informal fact finding regarding any allegation
656 under this section, to the extent necessary to determine whether
657 there are reasonable grounds to believe that a retaliatory
658 prohibited personnel action under s. 112.3187 has occurred, is
659 occurring, or is to be taken.
660 (b) Notify the complainant, within 15 days after receiving
661 a complaint, that the complaint has been received by the
663 (b) (c) Within 120 90 days after receiving the complaint is
664 filed, determine whether reasonable grounds exist to believe
665 that a retaliatory action occurred, is occurring, or is to be
666 taken provide the agency head and the complainant with a fact
667 finding report that may include recommendations to the parties
668 or proposed resolution of the complaint. The fact-finding report
669 shall be presumed admissible in any subsequent or related
670 administrative or judicial review.
671 (2) (3) POWERS OF THE FLORIDA COMMISSION ON HUMAN RELATIONS
672 CORRECTIVE ACTION AND TERMINATION OF INVESTIGATION.—
673 (a) The Florida Commission on Human Relations, in
674 accordance with this act and for the sole purpose of this act,
675 is empowered to:
676 1. Receive and investigate complaints from employees
677 alleging retaliation by state agencies, as the term “state
678 agency” is defined in s. 112.3187(3), and by independent
679 contractors s. 216.011.
680 2. Protect employees and applicants for employment with
681 such agencies from retaliatory actions prohibited personnel
682 practices under s. 112.3187.
683 3. Petition for stays and petition for corrective actions,
684 including, but not limited to, temporary reinstatement.
685 4. Recommend disciplinary proceedings pursuant to
686 investigation and appropriate agency rules and procedures.
687 5. Coordinate with the Chief Inspector General in the
688 Executive Office of the Governor and the Florida Commission on
689 Human Relations to receive, review, and forward to appropriate
690 agencies, legislative entities, or the Department of Law
691 Enforcement disclosures of a violation of any law, rule, or
692 regulation, or disclosures of gross mismanagement, gross
693 misconduct, gross malfeasance, gross misfeasance, nonfeasance,
694 neglect of duty, Medicaid fraud or program abuse, or gross waste
695 of public funds, gross neglect of duty on the part of an agency,
696 a public officer, or an employee, or substantial or specific
697 damage to the health, welfare, or safety of the public.
698 6. Review rules pertaining to personnel matters issued or
699 proposed by the Department of Management Services, the Public
700 Employees Relations Commission, and other agencies, and, if the
701 Florida Commission on Human Relations finds that any rule or
702 proposed rule, on its face or as implemented, requires the
703 commission of a prohibited personnel practice, provide a written
704 comment to the appropriate agency.
705 7. Investigate, request assistance from other governmental
706 entities, and, if appropriate, bring actions concerning,
707 allegations of retaliation by state agencies under subparagraph
709 8. Administer oaths, examine witnesses, take statements,
710 issue subpoenas, order the taking of depositions, order
711 responses to written interrogatories, and make appropriate
712 motions to limit discovery, pursuant to investigations under
713 subparagraph 1.
714 9. Intervene or otherwise participate, as a matter of
715 right, in any appeal or other proceeding arising under this
716 section before the Public Employees Relations Commission or any
717 other appropriate agency, except that the Florida Commission on
718 Human Relations must comply with the rules of the commission or
719 other agency and may not seek corrective action or intervene in
720 an appeal or other proceeding without the consent of the person
721 protected under ss. 112.3187-112.31895.
722 10. Conduct an investigation , in the absence of an
723 allegation, to determine whether reasonable grounds exist to
724 believe that a retaliatory prohibited action or a pattern of
725 retaliatory prohibited action has occurred, is occurring, or is
726 to be taken.
727 (b) Within 15 days after receiving a complaint that a
728 person has been discharged from employment allegedly for
729 engaging in disclosing protected activity information under s.
730 112.3187, the Florida Commission on Human Relations shall review
731 the information and determine whether temporary reinstatement is
732 appropriate under s. 112.3187(8)(f) s. 112.3187(9)(f). If the
733 Florida Commission on Human Relations so determines, based upon
734 a legal review of the complaint and accompanying materials, it
735 shall apply for an expedited order to show cause from the
736 appropriate agency or circuit court for the immediate
737 reinstatement of the employee who has been discharged subsequent
738 to the disclosure made under s. 112.3187, pending the issuance
739 of the final outcome of order on the complaint.
740 (c) The Florida Commission on Human Relations shall notify
741 a complainant of the status of the investigation and any action
742 taken at such times as the commission considers appropriate.
743 (d) If the Florida Commission on Human Relations is unable
744 to conciliate a complaint within 60 days after receipt of the
745 fact-finding report, the Florida Commission on Human Relations
746 shall terminate the investigation. Upon termination of any
747 investigation, the Florida Commission on Human Relations shall
748 notify the complainant and the agency head of the termination of
749 the investigation, providing a summary of relevant facts found
750 during the investigation and the reasons for terminating the
751 investigation. A written statement under this paragraph is
752 presumed admissible as evidence in any judicial or
753 administrative proceeding but is not admissible without the
754 consent of the complainant.
755 (c) (e)1. The Florida Commission on Human Relations may
756 request an agency or a circuit court to order a stay, on such
757 terms as the court requires, of any personnel action for 45 days
758 if the Florida commission on Human Relations determines that
759 reasonable grounds exist to believe that a retaliatory
760 prohibited personnel action has occurred, is occurring, or is to
761 be taken. The Florida commission on Human Relations may request
762 that such stay be extended for appropriate periods of time.
763 (d) 2. If, in connection with any investigation under this
764 section, it is determined the Florida Commission on Human
765 Relations determines that reasonable grounds exist to believe
766 that a criminal violation has occurred which has not previously
767 been reported prohibited action has occurred, is occurring, or
768 is to be taken which requires corrective action, the Florida
769 Commission on Human Relations shall report the determination
770 together with any findings or recommendations to the agency head
771 and may report that determination and those findings and
772 recommendations to the Chief Inspector General and the
773 Department of Law Enforcement and to the state attorney having
774 jurisdiction over the matter Governor and the Chief Financial
775 Officer. The Florida Commission on Human Relations may include
776 in the report recommendations for corrective action to be taken.
777 3. If, after 20 days, the agency does not implement the
778 recommended action, the Florida Commission on Human Relations
779 shall terminate the investigation and notify the complainant of
780 the right to appeal under subsection (4), or may petition the
781 agency for corrective action under this subsection.
782 4. If the Florida Commission on Human Relations finds, in
783 consultation with the individual subject to the prohibited
784 action, that the agency has implemented the corrective action,
785 the commission shall file such finding with the agency head,
786 together with any written comments that the individual provides,
787 and terminate the investigation.
788 (f) If the Florida Commission on Human Relations finds that
789 there are no reasonable grounds to believe that a prohibited
790 personnel action has occurred, is occurring, or is to be taken,
791 the commission shall terminate the investigation.
792 (g)1. If, in connection with any investigation under this
793 section, it is determined that reasonable grounds exist to
794 believe that a criminal violation has occurred which has not
795 been previously reported, the Florida Commission on Human
796 Relations shall report this determination to the Department of
797 Law Enforcement and to the state attorney having jurisdiction
798 over the matter.
799 (e) 2. If an alleged criminal violation has been reported,
800 the Florida Commission on Human Relations shall confer with the
801 Department of Law Enforcement and the state attorney before
802 proceeding with the investigation of the retaliatory prohibited
803 personnel action and may defer the investigation pending
804 completion of the criminal investigation and proceedings. The
805 Florida Commission on Human Relations shall inform the
806 complainant of the decision to defer the investigation and, if
807 appropriate, of the confidentiality of the investigation.
808 (f) (h) If, in connection with any investigation under this
809 section, the Florida Commission on Human Relations determines
810 that reasonable grounds exist to believe that a violation of a
811 law, rule, or regulation has occurred, other than a criminal
812 violation or a retaliatory prohibited action under this section,
813 the commission may report such violation to the head of the
814 agency involved. Within 30 days after the agency receives the
815 report, the agency head shall provide to the commission a
816 certification that states that the head of the agency has
817 personally reviewed the report and indicates what action has
818 been or is to be taken and when the action will be completed.
819 (g) (i) During any investigation under this section,
820 disciplinary action may not be taken against any employee of a
821 state agency, as the term “state agency” is defined in s.
822 112.3187(3) s. 216.011, for reporting an alleged retaliatory
823 prohibited personnel action that is under investigation, or for
824 reporting any related activity, or against any employee for
825 participating in an investigation without notifying the Florida
826 Commission on Human Relations.
827 (h) (j) The Florida Commission on Human Relations may also
828 petition for an award of reasonable attorney attorney’s fees and
829 expenses from a state agency, as the term “state agency” is
830 defined in s. 112.3187(3) s. 216.011, pursuant to s. 112.3187(8)
831 s. 112.3187(9).
832 (4) NOTICE OF TERMINATION.—
833 (a) If the Florida Commission on Human Relations determines
834 that reasonable grounds do not exist to believe that a
835 retaliatory action occurred, is occurring, or is to be taken,
836 the commission must issue a termination of investigation for no
837 cause, which must provide the reason why the investigation was
838 terminated to the state agency and to the complainant.
839 (b)1. If the Florida Commission on Human Relations
840 determines that reasonable grounds exist to believe that a
841 retaliatory action occurred, is occurring, or is to be taken,
842 the commission must issue a fact-finding report that may include
843 recommendations to the parties or propose a resolution of the
844 complaint. The commission has 60 days after the date of the
845 report to attempt to resolve the complaint. If the complaint
846 remains unresolved upon expiration of the 60-day period, the
847 commission must issue a notice of termination of investigation
848 with cause which must provide to the affected parties a summary
849 of relevant facts found during the investigation and the reason
850 why the investigation was terminated.
851 2. A fact-finding report issued under this paragraph is
852 presumed admissible in evidence in any subsequent judicial or
853 administrative proceeding but is not admissible without the
854 consent of the charging party.
855 (c) Upon receipt of the notice of termination of
856 investigation, a complainant may:
857 1. Bring a civil action in any court of competent
858 jurisdiction within 180 days after rendition of the notice; or
859 2. At least 60 days after rendition of the notice, file a
860 complaint with the Public Employees Relations Commission against
861 the employer-agency regarding the alleged retaliatory action.
862 The Public Employees Relations Commission has jurisdiction over
863 such complaints under ss. 112.3187 and 447.503(4) and (5).
864 Judicial review of any final order of the Public Employees
865 Relations Commission shall be as provided in s. 120.68.
866 (d) The notice provisions of s. 768.28 do not apply to any
867 civil action brought pursuant to ss. 112.3187-112.31895.
868 (4) RIGHT TO APPEAL.—
869 (a) Not more than 60 days after receipt of a notice of
870 termination of the investigation from the Florida Commission on
871 Human Relations, the complainant may file, with the Public
872 Employees Relations Commission, a complaint against the
873 employer-agency regarding the alleged prohibited personnel
874 action. The Public Employees Relations Commission shall have
875 jurisdiction over such complaints under ss. 112.3187 and
876 447.503(4) and (5).
877 (b) Judicial review of any final order of the commission
878 shall be as provided in s. 120.68.
879 Section 5. Paragraph (f) of subsection (2) of section
880 14.32, Florida Statutes, is amended to read:
881 14.32 Office of Chief Inspector General.—
882 (2) The Chief Inspector General shall:
883 (f) Coordinate the activities of the Florida Public
884 Whistleblower’s Whistle-blower’s Act pursuant to chapter 112 and
885 maintain the whistleblower’s whistle-blower’s hotline to receive
886 complaints and information concerning the possible violation of
887 law or administrative rules, mismanagement, fraud, waste, abuse
888 of authority, malfeasance, or a substantial or specific danger
889 to the health, welfare, or safety of the public.
890 Section 6. Paragraphs (a), (b), and (f) of subsection (7)
891 of section 20.055, Florida Statutes, are amended to read:
892 20.055 Agency inspectors general.—
893 (7) In carrying out the investigative duties and
894 responsibilities specified in this section, each inspector
895 general shall initiate, conduct, supervise, and coordinate
896 investigations designed to detect, deter, prevent, and eradicate
897 fraud, waste, mismanagement, misconduct, and other abuses in
898 state government. For these purposes, each inspector general
900 (a) Receive complaints and coordinate all activities of the
901 agency as required by the Florida Public Whistleblower’s
902 Whistle-blower’s Act pursuant to ss. 112.3187-112.31895.
903 (b) Receive and consider the complaints which do not meet
904 the criteria for an investigation under the Florida Public
905 Whistleblower’s Whistle-blower’s Act and conduct, supervise, or
906 coordinate such inquiries, investigations, or reviews as the
907 inspector general deems appropriate.
908 (f) Submit in a timely fashion final reports on
909 investigations conducted by the inspector general to the agency
910 head, except for whistleblower’s whistle-blower’s
911 investigations, which shall be conducted and reported pursuant
912 to s. 112.3189.
913 Section 7. Subsection (3) of section 112.31901, Florida
914 Statutes, is amended to read:
915 112.31901 Investigatory records.—
916 (3) This section does not apply to whistleblower whistle
917 blower investigations conducted pursuant to ss. 112.3187,
918 112.3188, 112.3189, and 112.31895.
919 Section 8. Subsection (13) of section 760.06, Florida
920 Statutes, is amended to read:
921 760.06 Powers of the commission.—Within the limitations
922 provided by law, the commission shall have the following powers:
923 (13) To receive complaints and coordinate all activities as
924 required by the Florida Public Whistleblower’s Whistle-blower’s
925 Act pursuant to ss. 112.3187-112.31895.
926 Section 9. This act shall take effect July 1, 2020.