The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Ethics and Elections
BILL: SPB 7014
INTRODUCER: Ethics and Elections Committee
SUBJECT: Ethics
DATE: December 13, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cleary Roberts EE Submitted as Comm. Bill/Fav
I. Summary:
SPB 7014 creates timeframes for completion of investigations of alleged ethics violations
conducted by the Commission on Ethics (commission) and:
Creates a harmless error standard for failure to meet the deadlines;
Tolls the timeframes until resolution of any related criminal cases; and
Provides that the timeframes will apply to existing and new cases.
The proposed bill also:
Conforms the maximum civil penalty for a violation of the constitutional prohibition against
lobbying by a public officer to those for other violations of ethics laws;
Provides that terms of commission members are limited to two total, rather than two
successive;
Adds candidates for public office to the categories of persons authorized to recover costs and
attorney fees for defending against a maliciously filed ethics complaint;
Requires a vote of six commission members to reject or deviate from a recommendation of
counsel to the commission; and
Removes the commission’s ability to conduct a formal hearing to determine disputed
material facts.
The proposed bill takes effect July 1, 2024.
REVISED: BILL: SPB 7014 Page 2
II. Present Situation:
Commission on Ethics
The Commission on Ethics was created by the Legislature in 1974 “to serve as guardian of the
standards of conduct” for state and local public officials and employees.
1
The Florida
Constitution and state law designate the commission as the independent commission provided for
in s. 8(g), Art. II of the Florida Constitution.
2
Constitutional duties of the commission consist of
conducting investigations and making public reports on all breach of trust complaints towards
public officers or employees not governed by the judicial qualifications commission.
3
In addition
to constitutional duties, the commission in part:
Renders advisory opinions to public officials;
4
Conducts investigations into potential violations of the Code of Ethics or Florida Constitution
based on referrals from select government agencies;
5
Makes recommendations to disciplinary officials when appropriate for violations of ethics
and disclosure laws;
6
Administers the executive branch lobbying registration and reporting Laws;
7
Maintains financial disclosure filings of constitutional officers and state officers and
employees;
8
and
Administers automatic fines for public officers and employees who fail to timely file a
required annual financial disclosure.
9
Current law prescribes requirements for commission members and specifies that a member may
not serve more than two full terms in succession.
10
Code of Ethics for Public Officers and Employees
The Code of Ethics for Public Officers and Employees (Code of Ethics)
11
establishes ethical
standards for public officials and is intended to “ensure that public officials conduct themselves
independently and impartially, not using their office for private gain other than compensation
provided by law.”
12
The Code of Ethics pertains to various ethical issues, such as ethics
trainings, voting conflicts, full and public disclosure of financial interests, standards of conduct,
1
Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees,
available at http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf (last visited December 13, 2023).
2
Section 8(j)(3), art. II, Fla. Const.; s. 112.320, F.S.
3
Section (8)(g), art. II, Fla. Const.
4
Section 112.322(3)(a), F.S.
5
Section 112.324(1)(b), F.S.
6
Section 112.322(2)(b), F.S.
7
Sections 112.3215, 112.32155, F.S.
8
Section 112.3144, F.S.
9
Section 112.3144, F.S.; s. 112.3145, F.S.; s. 112.31455, F.S.
10
Section 112.321(1), F.S.
11
See Pt. III, Ch. 112, F.S.; see also Art. II, s. 8(h)1, Fla. Const.
12
Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees,
available at http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf (last visited December 13,
2023). BILL: SPB 7014 Page 3
investigations and prosecutions of ethics complaints and referrals for alleged ethics violations,
and the commission, among others.
13
Procedures on Complaints and Violations
Current law requires the commission to investigate alleged violations of the Code of Ethics upon
receipt of a written complaint executed on a form prescribed by the commission and signed
under oath or affirmation by any person, or upon receipt of a written referral of a possible
violation from the Governor, the Department of Law Enforcement, a State Attorney, or a United
States Attorney.
14
Within 5 days after receipt of a complaint by the commission or a
determination by at least six members of the commission that the referral received is deemed
sufficient, the commission must transmit a copy to the alleged violator.
15
Upon determination of legal sufficiency of a complaint or referral, the commission must
undertake a preliminary investigation.
16
The commission begins the preliminary investigation
with issuance of an order to investigate.
17
After the commission’s investigator completes his or
her initial investigation, he or she writes an investigatory report
18
and mails the report to the
alleged violator and to an advocate in the Attorney General’s office, who serves as counsel for
the commission.
19
The alleged violator is given 14 days from the mailing of the investigator’s
report to respond to the report.
20
Upon receipt of the investigatory report, the advocate must
make a written probable cause recommendation to the commission.
21
A copy of the advocate’s
recommendation must be furnished to the alleged violator, and the alleged violator has 7 days
from the date of mailing of the advocate’s recommendation to provide a written response for the
commission’s consideration.
22
The commission then schedules a probable cause hearing, which is held during an executive
session of the commission.
23
The commission must send notice to the parties at least 14 days
prior to the hearing.
24
If the commission does not find probable cause that the alleged violations were committed, the
complaint is dismissed.
25
The commission may order additional investigation if it is deemed
necessary.
26
If the commission finds probable cause, it then provides written notice to the alleged
violator of the probable cause finding and of the scheduling of a public hearing.
27
13
See Pt. III, Ch. 112, F.S.
14
Section 112.324(1), F.S.
15
Id.
16
Section 112.324(3), F.S.
17
Rule 34-5.002(2), F.A.C.; r. 34-17.005(2), F.A.C.
18
Rule 34-5.004(7), F.A.C.; r. 34-17.008(6), F.A.C.
19
Rule 34-5.006(1)(3), F.A.C.; r. 34-17.010(1)(3), F.A.C.;
20
Rule 34-5.006(2), F.A.C.; r. 34-17.010(2), F.A.C.
21
Rule 34-5.006(3), F.A.C; r. 34-17.010(3), F.A.C.
22
Id.
23
Rule 34-5.006(4), F.A.C.; r. 34-17.010(4), F.A.C.
24
Id.
25
Section 112.324(3), F.S.
26
Id.
27
Id. BILL: SPB 7014 Page 4
The alleged violator may at any time during the subsequent proceedings negotiate a settlement
with the commission via the advocate.
28
The alleged violator also has the option to dispute
material facts and request a formal hearing or to request an informal hearing and present
mitigating circumstances.
29
The commission may conduct a formal hearing itself or transfer the case to the Division of
Administrative Hearings (DOAH) for formal hearing.
30
An informal hearing is always conducted
by the commission.
31
If the commission conducts a hearing, it subsequently issues a Final Order
recommending a penalty.
32
If an administrative law judge at DOAH conducts a formal hearing,
the judge issues a Recommended Order to the commission.
33
Jurisdiction may be relinquished
back to the commission from the DOAH at the request of the commission or if a judge
determines there are no disputed material facts.
34
The commission may dismiss any complaint or referral at any stage of disposition if it
determines that the violation alleged is a de minimis violation attributable to inadvertent or
unintentional error.
35
The commission may, at its discretion, dismiss any complaint at any stage
of disposition should it determine that the public would not be served by proceeding further, in
which case the commission must issue a public report stating with particularity its reasons for
dismissal.
36
Penalty Provisions
The general penalty provisions for violations of the Code of Ethics are located in s. 112.317,
F.S., and prescribe, among other penalties, a maximum civil penalty of $20,000 per violation.
37
During the 2023 legislative session, the Legislature increased that penalty to $20,000 from
$10,000 at the request of the commission.
38
The law provides separate penalties for violations of the constitutional prohibition against
lobbying by a public officer.
39
Among other penalties, the prescribed maximum civil penalty for
a violation of that prohibition is $10,000.
40
28
Id.
29
Id.
30
Rule 34-5.010, F.A.C.; r. 34-17.013, F.A.C. See s. 120.569(2), F.S.; s. 120.57(1), F.S.
31
Rule 34-5.010, F.A.C.; r. 34-17.013, F.A.C.; See s. 120.569(1), F.S.;s. 120.57(2), F.S.
32
The commission is without jurisdiction to impose a penalty or enter into a stipulation or settlement which imposes penalty
(s. 112.324(3), F.S.). Penalties must be imposed only by the appropriate disciplinary authority designated by s. 112.324, F.S.
33
Rule 34-5.024(1), F.A.C.; r. 34-17.018(1); F.A.C.; See also s. 120.57(1)(k), F.S.; r. 28-106.216, F.A.C.
34
Section 120.57(1)(i), F.S.
35
Section 112.324(11), F.S. A de minimis violation is any violation that is unintentional and not material in nature.
36
Section 112.324(12), F.S. In order for the commission to dismiss a complaint under this provision, it must find that the
public interest would not be served by proceeding further and must issue a public report explaining its justification for
dismissal. In contrast, to dismiss a violation for being de minimis, the commission must find that the violation was
unintentional and not material in nature.
37
Section 112.317(1)(a)6., F.S. The commission is without jurisdiction to impose any penalty, but may make
recommendations for an appropriate penalty to the appropriate disciplinary authority charged with imposing penalties as
designated under the procedures of s. 112.324(3), F.S.
38
Section 7, ch. 2023-49.
39
Section 112.3122, F.S.
40
Section 12.3122(4)(b), F.S. BILL: SPB 7014 Page 5
Redress for Defense against a Maliciously Filed Complaint
Current law entitles a public officer or employee who is the subject of a maliciously filed ethics
complaint to seek from the complainant the costs and attorney fees related to the public officer or
employee’s defense against the complaint.
41
The law does not include candidates for public
office in the categories of persons who may seek such redress.
42
III. Effect of Proposed Changes:
SPB 7014 creates the following statutory timeframes for completion of investigations of alleged
ethics violations conducted by the commission:
Requires the commission to complete the preliminary investigation, which concludes with
the probable cause determination, no later than 1 year after the beginning of the preliminary
investigation.
Requires the commission to determine technical sufficiency of a complaint within 5 days of
receipt and legal sufficiency within 21 days of receipt, and requires the commission to
determine technical and legal sufficiency of a referral at its next meeting.
Creates a 60-day deadline from the date of the commission’s receipt of an initial complaint
for the complainant to file an amended complaint.
Requires an investigatory report to be completed no later than 120 days after issuance of the
order to investigate.
Requires an investigatory report be provided to the alleged violator and advocate no later
than 5 days after completion of the report.
Requires the advocate to make a written probable cause recommendation to the commission
no later than 15 days after receiving an investigatory report.
Requires the commission to provide the advocate’s recommendation to the alleged violator
no later than 5 days after its completion.
Requires the alleged violator be given 14 days to respond in writing after the mailing date of
the advocate’s recommendation.
Requires the commission, upon receipt of the advocate’s recommendation, to schedule the
probable cause hearing for the next executive session if notice requirements can be met.
Limits an order of additional investigation at a probable cause hearing to 60 days, if six
commission members approve, and requires the commission to document the reasons for
extension during the hearing.
Requires the commission to provide written notification of the probable cause determination
to the complainant and the alleged violator no later than 5 days after the date of the probable
cause determination.
Requires the commission to conduct an informal hearing no later than 75 days after the date
of the probable cause determination.
If jurisdiction of a case is relinquished back from the DOAH without a Recommended Order,
require the commission to take up the case at its next meeting and to complete final action on
the case no later than 30 days after that meeting.
41
Section 112.317(7), F.S.
42
Id. BILL: SPB 7014 Page 6
The proposed bill specifies the following implementing provisions related to the new
timeframes:
A failure of the commission to comply with the new timeframes constitutes harmless error in
any related disciplinary action unless a court finds that the fairness of the proceedings or the
correctness of an action may have been impaired by a material error in procedure or a failure
to follow prescribed procedure.
The timeframes are tolled pending resolution of a related criminal complaint.
The timeframes apply to existing and new cases.
The proposed bill also:
Conforms the maximum civil penalty for a violation of the constitutional prohibition against
lobbying by a public officer to those for other violations of ethics laws.
Provides that terms of commission members are limited to two total, rather than two
successive.
Adds candidates for public office to the categories of persons authorized to recover costs and
attorney fees for defending against a maliciously filed ethics complaint.
Requires a vote of six commission members to reject or deviate from a recommendation of
counsel to the commission.
Removes the commission’s ability to conduct a formal hearing to determine disputed
material facts.
Makes technical changes, removing obsolete language.
The proposed bill takes effect July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None. BILL: SPB 7014 Page 7
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The provisions of the proposed bill will require implementation by the commission,
including potential rulemaking, revision of internal policies and procedures, and
development of a case tracking process.
The timeframes for complaint resolution may reduce costs to investigate and prosecute
ethics violations by preventing unnecessary delays.
Because the commission currently refers all cases for which a formal hearing is to be
conducted to the DOAH, the proposed bill’s removal of the commission’s authority to
conduct formal hearings is not likely to increase the commission’s DOAH costs.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 112.3122, 112.321,
112.317, and 112.324.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.