File Number: 972777
|File Number: 972777||File Type: Ordinance||Status: Adopted as amended|
|Version: 0||Reference: 97-105||Control: County Commission|
|Requester: NONE||Cost:||Final Action: 7/8/1997|
|Sunset Provision: Yes||Effective Date: 9/16/1997||Expiration Date: 9/15/2002|
|Registered Lobbyist:||None Listed|
|Acting Body||Date||Agenda Item||Action||Sent To||Due Date||Returned||Pass/Fail|
|County Attorney||7/28/1997||Assigned||Gerald K. Sanchez||7/28/1997|
|Board of County Commissioners||7/8/1997||4D SUBSTITUTE||Adopted as amended||P|
|REPORT:||Mayor Penelas appeared before the Board in support of the ordinance noting it created a local forum for reviewing ethics violations and was the first step in addressing public concern with public officials. He indicated the ethics commission would have the authority to review, and enforce, county and municipal ethics codes, the conflict of interest ordinance, lobbyist registrations and reporting ordinances, and the county's citizens bill of rights. He urged the Board's approval of the ordinance and thanked Commissioner Morales for his leadership in the creation of the ordinance. Mr. James Casey, representing the Dade County Police Benevolent Association, the Government Supervisor's Association of Florida, OPEIU Local 100 AFLCIO, and the Coral Gables Employees Association, expressed opposition to the proposed ordinance and noted there was concern that the scope of the ordinance went further than the voters of Dade County intended or were led to believe. He indicated many investigative agencies, which currently existed at every level of government, already had the power and authority to investigate ethical and other types of complaints against public employees. He also expressed concern with the budget implications of the proposed ordinance noting, in his opinion, the cost of implementation would come at the expense of the employees. He further stated the proposed ordinance adversely impacted the contractual and statutory rights of public sector union employees. Commissioner Morales stressed the fact that Dade County voters, on March 12, 1996, approved the creation of an ethics commission due to public concern with public corruption. He noted, with regards to the cost of operating an ethics commission, the commission would need whatever resources were required in order to carry out the mandates imposed upon them and be effective. He presented a motion to adopt the ordinance. Commissioner Alonso expressed concern that voters were not aware of the substantial costs associated with implementation of the ordinance and suggested the voters be presented with a question as to whether or not they agreed to proceed with the ethics commission based on the costs that would be imposed upon the taxpayers. She also expressed concern with the subpoena power given to the chair. Commissioner Kaplan concurred with Commission Alonso's concerns and expressed his opposition to the proposed ordinance noting, in his opinion, it was another unnecessary level of scrutiny and harassment. Commissioner Sorenson spoke in support of the ordinance however, expressed concern with the financial liability that would be imposed upon the individual being investigated. Assistant County Attorney Sanchez indicated, should the ethics commission find a complaint to be groundless or frivolous, it was obligated to require the complaining party to pay for any legal fees incurred, however, to the extent that the complaining party had not paid for those fees, the Board of County Commissioners, or any municipal commission, had the option to pay for the attorney's fees. Commissioner Diaz de la Portilla expressed concern with the extraordinary amount of power being given to the chair, the proposed cost, the possible financial hardship an employee could encounter, and the mechanism for recovering attorney fees on frivolous complaints. He indicated, based on his concerns, he could not support the proposed ordinance as drafted. Commissioner Burke proffered amendments to require a time frame for termination of the complaint proceedings, to include language in the composition and appointment section that would specify that the faculty member,appointed by the Dean of University of Miami School of Law or St. Thomas School of Law, be someone who had studied, published, or performed service in the field of professional legal ethics; and language that would require the Dade League of Cities appointment to be someone who had held elected office at the local government level. Commissioner Morales expressed no objection to Commissioner Burke's amendments relating to imposing a time frame for resolving the complaint and composition of the commission. Chair Margolis seconded the motion to adopt the ordinance as amended. Commissioner Carey stressed the need to impose a cap on the number of staff positions and expressed concern with giving the chair subpoena power. She suggested the ordinance be amended to require a 2/3 vote of the commission in order to subpoena someone. Commissioner Morales clarified the ordinance, as presented, required a 2/3 vote of the commission to issue a subpoena and, could, by a 2/3 vote, give that power to the chair. Commissioner Carey proffered an amendment that would only allow issuance of a subpoena by a 2/3 vote of the commission Commissioner Morales accepted the foregoing motion and noted, based on concerns expressed by Commissioner Carey regarding protecting public officials from false accusations, that all complaints would be kept confidential until the commission determined there was probable cause to the complaint. Commissioner Diaz de la Portilla stressed the need to address concerns expressed by several commissioners and moved to defer the ordinance to July 22, 1997. This motion was seconded by Commissioner Kaplan. Commissioner Morales spoke against the motion to defer. Mayor Penelas spoke against the motion to defer and suggested the Board consider adopting the ordinance, with the amendments proffered today, and presenting any additional amendments subsequent to adoption, inasmuch as it would not go into effect for 60 days which was ample time to address concerns and present further amendments. Commissioner Kaplan spoke in support of the motion to defer and stressed the need to include a res judicata provision in the ordinance. Based on concerns expressed by several Board members on the ethic commission's budget, Mayor Penelas noted there was $277,000 unspent allocation in this fiscal year's countywide budget and a $280,000 allocation set forth in next years budget. He noted, for the record, the ethic commissions budgetary amount for this fiscal year was set at $277,000 and recommended the Board cap the commission's budget at that amount with a caveat that any increases come only from municipal grants. Commissioner Carey proffered an amendment that would cap the ethic commission's budget at $277,000 with any increases being brought back to the Board for approval. She also moved to allocate the $277,000 from this years countywide budget to Transition, Inc. This motion was seconded by Commissioner Kaplan, however no action was taken on the motion. (See Non-Agenda Item Reports - Item #3 for information on the allocation of the $277,000) Commissioner Morales accepted Commissioner Carey's amendment to cap the budget. Commissioner Kaplan indicated he would support the ordinance, including all proffered amendments, if the Mayor was willing to include a message in the legislative package that requested the state recognize Dade County's Board of County Commissioners as a form of final arbiter of res judicata for the process. Mayor Penelas indicated he could not support Commissioner Kaplan's request. Following additional discussion, the motion to defer, upon being put to a vote, failed by a vote of 4-6, (Commissioners Carey, Ferguson, Margolis, Morales, Sorenson and Souto voted No)(Commissioners Millan, Moss and Reboredo were absent). Commissioner Diaz de la Portilla proffered an amendment to require the prevailing party to pay all attorney fees and set the filing fee at an amount that would discourage frivolous complaints but not so high that would make the process unavailable to those who had legitimate complaints. First Assistant County Attorney Greenberg advised that the prevailing party should be referred to as the charging party and whatever amount set for the filing fee was a charge to cover the cost of administering the ordinance and not used as an instrument to inhibit an individual from filing a complaint. Based on County Attorney Greenberg's advise, Commissioner Diaz de la Portilla altered his amendment relating to the filing fee to set the filing fee by resolution at a subsequent date. He also proffered a time frame of 18 months to resolve a complaint. Commissioner Morales accepted the foregoing amendments. Upon inquiry by Commissioner Diaz de la Portilla regarding the identity of the person filing the complaint being public record, Assistant County Attorney Sanchez indicated their identity would not be public record until a probable cause determination was made unless the accused person requested the file be open to the public. Commissioner Burke recommended, if the ethics commission determined there was an absence of finding of probable cause, the attorney fees and costs should be assessed against the individual filing the complaint. Upon inquiry by Commissioner Carey regarding payment of attorney fees in cases of indigency, County Attorney Greenberg indicated the Board could amend the ordinance to indicate if there was no probable cause found, then the Board of County Commissioners, or the respective municipal board, would have the authority to pay the attorney fees when presented to the Board. Commissioner Morales indicated similar language was already in the ordinance under Section T and proffered an amendment to include a reference to probable cause in that section. Commissioner Kaplan proffered an amendment to include a provision that required a hearing be held within 60 days from the time of a probable cause finding, unless one of the parties requested a continuance. Commissioner Morales accepted the foregoing amendment. Commissioner Kaplan stressed the need to include language that would stop the case from moving forward once the ethics commission made a determination of probable cause or there was no adjudication and requested language be included in Subsection Q that would require the ethics commission to notify other agencies. He also requested, by a companion resolution, that the Board urge the state, during the next legislative cycle, to recognize that, if the proceeding was done fully and fairly, that it end in Dade County and be considered the res judicata for those issues. Commissioner Morales accepted Commissioner Kaplan's amendment. For the record, First Assistant County Attorney Greenberg clarified Commissioner Kaplan's amendment was to include language in Section Q that stipulated the ethics commission shall notify the State Ethics Commission, the State Attorney, and any other appropriate official agency, in writing, of the final disposition of the case within ten days of conclusion. Commissioner Diaz de la Portilla requested the County Attorney review the feasibility of requiring a bond on attorneys fees and whether or not the complainer could be restricted to abide by the decision of the ethics commission without recourse. Commissioner Alonso expressed concern with the number of amendments that were being proffered and stressed the need to defer the ordinance to provide ample time to review all of the changes. Chair Margolis indicated the committee process was to address concerns of commissioners and expressed concern with the lengthy discussions taking place at the commission level due to the inability to obtain a quorum at the committee level. She suggested the Mayor consider removing any commissioner from a committee that he or she was a member of and did not attend. Assistant County Attorney Sanchez clarified, for the record, the following amendments that had been proffered: 1. The Dade League of Cities appointee must have held elective office at the local level prior to being appointed. 2. The faculty member appointee shall be a person who had studied, published or performed services in the field of professional legal ethics. 3. Within 18 months of filing of a complaint, the Ethic Commission must conclude the proceeding. 4. A 2/3 vote of the commission was required to issue a subpoena and that power could not be delegated to the chairperson. 5. Any increases in the budget of the Ethics Commission beyond that already allocated shall only come from the municipalities. 6. The Board of County Commissioners shall set the filing fee by resolution. 7. The full board, by that the Ethics Commission, shall dispose of all motions in opposition. 8. Attorney's fees were to be paid, where there was no finding of probable cause or adjudication, by the complaining party. 9. The public hearing, within 60 after the probable cause determination, shall occur unless the charged party requested a continuance. 10. The Ethics Commission shall notify the State Ethics Commission, the State Attorney, and other law enforcement agencies of the disposition of the case within ten days of final determination or no probable cause. Commissioner Kaplan requested language also be included that required the Board, within ten days, to consider a resolution to include the res judicata insertion in the next legislative package. First Assistant County Attorney Greenberg indicated the resolution would be prepared and presented to the Board at the July 22, 1997 meeting. The Board, by motion duly made, seconded and carried, adopted the ordinance as amended.|
ORDINANCE AMENDING CHAPTER 2 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA, CREATING THE METROPOLITAN DADE COUNTY COMMISSION ON ETHICS AND PUBLIC TRUST; PROVIDING FOR QUALIFICATIONS OF MEMBERS; PROVIDING FOR TERM AND APPOINTMENT OF MEMBERS; PROVIDING FOR JURISDICTION OF COMMISSION; PROVIDING FOR APPLICABILITY OF CONFLICT OF INTEREST AND CODE OF ETHICS ORDINANCE; PROVIDING FOR ORGANIZATION OF ETHICS COMMISSION; PROVIDING AUTHORITY TO REVIEW, INTERPRET, RENDER ADVISORY OPINIONS AND LETTERS OF INSTRUCTION, AND ENFORCE THE COUNTY AND MUNICIPAL CODE OF ETHICS ORDINANCES, CONFLICT OF INTEREST ORDINANCES, LOBBYIST REGISTRATION AND REPORTING ORDINANCES, AND CITIZENS' BILL OF RIGHTS; PROVIDING STAFF SUPPORT FOR ETHICS COMMISSION; PROVIDING FINANCIAL SUPPORT FOR ETHICS COMMISSION; PROVIDING ETHICS COMMISSION WITH LEGAL COUNSEL; PROVIDING FOR PROCEDURE WHERE COMPLAINT OR REQUEST FOR ADVISORY OPINION; AMENDING SECTION 2-11.1(r) OF THE CODE TO REQUIRE ETHICS COMMISSION TO RENDER CONFLICT OF INTEREST OPINIONS; AMENDING SECTION 2-11.1(s) OF THE CODE TO AUTHORIZE ETHICS COMMISSION TO CONDUCT INVESTIGATIONS AND ENFORCE LOBBYIST REGISTRATION AND REPORTING ORDINANCE; AMENDING SECTION 2-11.1 OF THE CODE TO PROVIDE FOR POWERS AND JURISDICTION OF ETHICS COMMISSION; AMENDING SECTION 2-11.1(t) OF THE CODE TO PROVIDE FOR PENALTIES FOR VIOLATION OF CONFLICT OF INTEREST AND CODE OF ETHICS ORDINANCE; AND PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA:
Section 1. Article LXXVI, Chapter 2 of the Code of Metropolitan Dade County, Florida, is hereby created as follows:
* * *
ARTICLE LXXVI. COMMISSION ON ETHICS AND PUBLIC TRUST
Sec. 1. Creation of Commission.
There is hereby created and established pursuant to the Metropolitan Dade County Home Rule Charter, as amended by Dade County voters on March 12, 1996, an independent agency and instrumentality of Metropolitan Dade County to be known as the "Commission on Ethics and Public Trust" (hereinafter "Ethics Commission"). The Ethics Commission shall be an advisory, quasi-judicial body which may exercise all those powers either specifically granted herein or necessary in the exercise of those powers herein enumerated.
Sec. 2. Legislative intent and purpose.
The Board of County Commissioners ("County Commission") finds that the integrity of both the governmental decisionmaking process and the process whereby candidates are elected is essential to the continued functioning of an open government. In order to ensure the integrity of these processes and restore public confidence in government, the County Commission finds it necessary to create the Ethics Commission. The purpose of the Ethics Commission is to serve as the guardian of the public trust by, among other things, educating the public, candidates for elective office, elected and appointed officials and other public servants as to the required standards of ethical conduct and enforcing those standards of conduct. It is not the intent of the County Commission that the Ethics Commission serve as a personnel board resolving personnel matters involving County and municipal employees.
Sec. 3. Jurisdiction.
The jurisdiction of the Ethics Commission shall extend to
any person required to comply with the County or municipal Code of Ethics Ordinances, Conflict of Interest Ordinances, Lobbyist Registration and Reporting Ordinances or Citizens' Bill of Rights.
Sec. 4. Membership, qualifications, terms, vacancies.
(a) Composition and appointment. The Ethics Commission shall be composed of five (5) members. The members of the Ethics Commission shall be appointed as follows:
(1) the Chief Judge of the Eleventh Judicial Circuit shall be requested to appoint one (1) former federal judge, or former United States magistrate or former state court judge;
(2) the Chief Judge of the Eleventh Judicial Circuit shall be requested to appoint one (1) former U.S. Attorney or Assistant U.S. Attorney, former State Attorney or Assistant State Attorney, former County Attorney or Assistant County Attorney or former City Attorney or Assistant City Attorney;
(3) the Dean of the University of Miami School of Law or St. Thomas School of Law shall on a rotating basis be requested to appoint one (1) faculty member from his or her law school who has taught a course in professional legal ethics or has published or performed services in the field of professional legal ethics. The Dean of the University of Miami shall be requested to appoint the first faculty member to sit on the Ethics Commission. Upon the expiration of said member's term, the Dean of St. Thomas School of Law shall be requested to appoint a faculty member to sit on the Ethics Commission. Thereafter, each Dean shall on a rotating basis select a faculty member from his or her law school;
(4) the Director of Florida International University's Center for Labor Research and Studies shall be requested to appoint one (1) member; and
(5) the Dade County League of Cities, Inc. shall be requested to appoint one (1) member who has held elective office at the local level prior to appointment.
(b) Additional qualifications. Each member of the Ethics Commission shall be a United States citizen, resident of Dade County and shall be of outstanding reputation for integrity, responsibility and commitment to serving the community. The membership of the Ethics Commission should be representative of the community-at-large and should reflect the racial, gender and ethnic make-up of the community. Prior to final selection of each member of the Ethics Commission, those persons empowered herein to appoint members shall meet and evaluate the qualifications of each person(s) under consideration to ensure (a) that said person(s) is qualified to serve on the Ethics Commission and (b) that the membership of the Ethics Commission will be representative of the community-at-large and reflect the racial, gender and ethnic make-up of the community. Before entering upon the duties of office, each appointee on the Ethics Commission shall take the prescribed oath of office. Members of the Ethics Commission shall serve without compensation but shall be entitled to reimbursement for necessary expenses incurred in the discharge of their duties.
(c) Term. The members of the Ethics Commission shall serve staggered terms of four (4) years each, provided that of the original members, two (2) members shall be appointed for a term of two (2) years and three (3) shall be appointed for a term of four (4) years.
(d) Vacancies. A vacancy occurring during or at the expiration of a member's term on the Ethics Commission shall be filled as provided in subsections (a) and (b).
(e) Additional Requirements. No individual, while a member of the Ethics Commission, shall:
(1) hold or campaign for any elective political office;
(2) hold office in any political party or political committee;
(3) actively participate in or contribute to any political campaign or political action committee;
(4) be employed by Metropolitan Dade County or any municipality within Dade County; or
(5) allow his or her name to be used by a campaign in support of or against any candidate for political office or any referendum or other ballot question. Nothing herein shall preclude a member of the Ethics Commission from signing a petition in support of or against any referendum or other ballot question.
Sec. 5. Applicability of Conflict of Interest and Code of Ethics Ordinance.
The Metropolitan Dade County Conflict of Interest and Code of Ethics Ordinance, Section 2-11.1 of the Code of Metropolitan Dade County, Florida, shall be applicable to the members and staff of the Ethics Commission.
Sec. 6. Organization of the Ethics Commission.
The Ethics Commission shall elect one (1) of its voting members as chairperson who shall serve a term of two (2) years. No chairperson shall be permitted to serve two (2) consecutive terms.
The Ethics Commission shall hold regular meetings in accordance with the by-laws of the Ethics Commission and the Ethics Commission may hold such other meetings as it deems necessary. Except as provided in Section 9, all meetings of the Ethics Commission shall be public and written minutes of the proceedings thereof shall be maintained by the County Commission. All actions taken at the meetings of the Ethics Commission shall be promptly and properly recorded. Copies of all minutes, resolutions, decisions or advisory opinions of the Ethics Commission shall be forwarded to the Clerk of the Board of County Commissioners no later than thirty (30) days subsequent to any meeting of the Ethics Commission.
The Ethics Commission shall make, adopt and amend by-laws, rules of procedure which are consistent with the provisions of this ordinance and rules and regulations for the Ethics Commission's governance. The Ethics Commission shall be empowered to appoint an Executive Director and to remove such appointee at will. The Executive Director shall be a member of the Florida Bar in good standing. The Ethics Commission shall utilize a competitive selection process when selecting an Executive Director. The Ethics Commission shall fix the Executive Director's salary. The Executive Director shall be exempt from the classified service.
The Executive Director shall be empowered to appoint, remove, and suspend employees or agents of the Ethics Commission, to fix their compensation, and to adopt personnel and management policies.
Sec. 7. Powers and duties of the Ethics Commission.
(a) The Ethics Commission shall be authorized to exercise such powers and shall be required to perform such duties as are hereinafter provided. The Ethics Commission shall be empowered to review, interpret, render advisory opinions and letters of instruction and enforce the County and municipal:
(1) Code of Ethics Ordinances;
(2) Conflict of Interest Ordinances; and
(3) Lobbyist Registration and Reporting Ordinances.
(b) The Ethics Commission shall be empowered to review, interpret and render advisory opinions regarding the applicability of the Citizens' Bill of Rights as provided in Section 9.
(c) The Ethics Commission shall from time to time review County and municipal Conflict of Interest and Code of Ethics Ordinances, Lobbyist Registration and Reporting Ordinances, the Citizens' Bill of Rights and applicable state and federal statutes relating to ethics in government and shall report annually to the County Commission.
(d) The Ethics Commission shall prepare and make available to any person a copy of ordinances within the Ethics Commission's jurisdiction and the Citizens' Bill of Rights.
(e) The County Commission shall by resolution set a reasonable filing fee to be paid by any person filing a complaint as provided in Section 9. The Ethics Commission may waive the filing fee when a complainant is indigent.
Sec 8. Financial support for the Ethics Commission.
The Ethics Commission shall establish a fiscal year which coincides with that of Metropolitan Dade County, and the County shall provide the Ethics Commission with financial support pursuant to the official county budget. The Ethics Commission shall timely submit to the Board of County Commissioners an Ethics Commission budget request pertaining to operating and capital expenditures, which request shall not be implemented until approved by the Board of County Commissioners.
The Ethics Commission budget request shall be prepared on official county budget forms in a format prescribed by the County Manager, shall be reviewed in a manner similar to that in which requests of other county departments are reviewed, and shall be incorporated in the proposed budget and timely submitted to the County Commission each year. Nothing contained herein shall be construed to prohibit the Ethics Commission from submitting to the County Commission supplemental budget requests which, if approved by the Commission, shall constitute amendments to the official county budget. In addition to budgetary appropriations made by Dade County, the Ethics Commission may accept grants, contributions or appropriations from the federal government, state government or any municipality within Dade County. No other grants, contributions or appropriations may be accepted by the Ethics Commission.
Sec. 9. Procedure on complaint of violation or request for advisory opinion within Ethics Commission's jurisdiction.
(a) Legally sufficient complaint. Upon a written complaint which alleges the elements of a violation within the Ethics Commission's jurisdiction and is (i) executed on a form prescribed by the Ethics Commission, (ii) based substantially upon the personal knowledge of the complainant and (iii) signed under oath or affirmation by the complaining person, the Ethics Commission shall investigate any alleged violation within its jurisdiction. Within five (5) days after receipt of a complaint by the Ethics Commission, a copy shall be sent to the alleged violator.
(b) Preliminary investigation and public hearing. A preliminary investigation shall be undertaken by the Ethics Commission of each legally sufficient complaint over which the Ethics Commission has jurisdiction to determine whether there is probable cause to believe that a violation has occurred. If, upon completion of the preliminary investigation, the Ethics Commission finds no probable cause to believe that a violation has been committed, the Ethics Commission shall dismiss the complaint with the issuance of a report to the complainant and the alleged violator. If the Ethics Commission finds from the preliminary investigation probable cause to believe that a violation has been committed, it shall notify via certified mail the complainant and the alleged violator, otherwise known as the respondent, in writing. Upon request submitted to the Ethics Commission in writing, any person who the Ethics Commission finds probable cause to believe has committed a violation of a provision within its jurisdiction shall be entitled to a public hearing. Such person shall be deemed to have waived the right to a public hearing if the request is not received within twenty-one (21) days following the mailing of the probable cause notification required by this subsection. The Ethics Commission may on its own motion require a public hearing, may conduct such further investigation as it deems necessary, and may enter into such stipulations and settlements as it finds to be just and in the best interest of the citizens of Dade County. The public hearing provided for in this Section 9 shall be held within sixty (60) days of the probable cause determination unless the respondent has been granted a continuance.
(c) Investigations. Investigations shall be conducted by Ethics Commission staff or by any other person or agency so designated by the Ethics Commission. Investigations shall be limited to the allegations of the complaint, but shall include an investigation of all facts and persons materially related to the complaint at issue.
(1) Counsel to Ethics Commission. The Ethics Commission shall select counsel to advise the Ethics Commission.
(2) Advocate. The Ethics Commission shall retain legal counsel to serve as the Advocate. The Advocate shall prosecute cases before the Ethics Commission.
(3) Respondent. The respondent may appear on his or her own behalf or may be represented by a lawyer. All notices and communications to a respondent represented by a lawyer shall be made through respondent's lawyer.
(4) Complainant. To the limited extent the complainant is entitled to participate in or observe Commission proceedings, the complainant may be represented by legal counsel. All notices and communications to a complainant represented by a lawyer shall be made through complainant's lawyer.
(5) Legal Opinion From County or City Attorney. Where a complaint or request for an advisory opinion requires interpretation of a particular ordinance within the jurisdiction of the Ethics Commission as provided in Section 7, the County Attorney and any City Attorney may provide the Ethics Commission with a nonbinding legal opinion.
(e) Public meetings and public records. All proceedings, the complaint, and other records relating to the preliminary investigation as provided herein shall be confidential and exempt from the provisions of Section 119, Florida Statutes, either until the alleged violator requests in writing that such investigation and records be made public records or the preliminary investigation is completed, notwithstanding any provision of Chapter 120, Florida Statutes, and Chapter 286, Florida Statutes. As provided in Section 9(b), the preliminary investigation is completed when the probable cause determination is made. All other proceedings conducted pursuant to this subsection shall be public meetings within the meaning of Chapter 286, Florida Statutes, and all other documents made or received by the Ethics Commission shall be public records within the meaning of Chapter 119, Florida Statutes.
(f) Any response to a request of a person within the Ethics Commission's jurisdiction shall be addressed in the first instance to the person making the request.
(g) Subpoena. The Ethics Commission shall be empowered to subpoena, audit, and investigate. The Ethics Commission may by a two-thirds (2/3) vote of the entire membership subpoena relevant witnesses and compel their attendance and testimony, administer oaths and affirmations, take evidence, and require by subpoena the production of any books, papers, records, or other items relevant to the performance of the duties of the Ethics Commission or to the exercise of its powers. The Ethics Commission may delegate to its investigators the authority to administer oaths and affirmations. Prior to issuing a subpoena, the Executive Director shall notify the State Attorney and the U.S. Attorney for the Southern District of Florida. In the case of a refusal to obey a subpoena issued to any person, the Ethics Commission may make application to any circuit court of this state which shall have jurisdiction to order the witness to appear before the Ethics Commission and to produce evidence, if so ordered, or to give testimony touching on the matter in question. Any person who fails to obey the order may be punished in a court of law.
(h) Subpoenas for discovery; discovery. At any time after the Ethics Commission orders a public hearing of the matter, the Ethics Commission may issue subpoenas to effect discovery upon the written request of respondent or Advocate. The requesting person shall give the name and address of each witness he or she wishes to have deposed and shall describe with particularity those documents or other items that the person wishes to have the witness produce, bring or deliver pursuant to a subpoena duces tecum. Subpoenas shall be issued as provided in Section 9(g). Parties may also obtain discovery through the means and in the manner provided in Rules 1.280 through 1.390, Florida Rules of Civil Procedure. The chairperson or a member of the Ethics Commission designated by the chairperson may issue appropriate orders to effectuate the purposes of discovery and to prevent delay.
(i) Subpoenas for public hearing. The respondent and the Advocate shall submit to the Executive Director a list of all witnesses he or she wishes to have subpoenaed to attend the hearing. The lists shall contain the correct names and addresses of the witnesses and shall describe with particularity those documents or other items that he or she wishes to have the witness bring to the hearing pursuant to subpoena duces tecum. Subpoenas shall be issued as provided in Section 9(g). (j) Motions.
(1) All motions shall be in writing unless made on the record during a hearing, and shall fully state the actions requested and the grounds relied upon. The motion shall include a statement that the movant has conferred with the Advocate and all other parties of record and shall state whether there is any objection to the motion.
(2) The original written motion shall be filed with the Ethics Commission and a copy served on all parties or their attorneys. The Ethics Commission staff shall send a copy of the motion to the chairperson.
(3) Unless the motion is in opposition to the proceeding as provided in Section 9(k), the chairperson, or a member of the Ethics Commission designated by the chairperson, shall conduct such proceedings and make such orders as are deemed necessary to dispose of issues raised by motions, but is not required to hold a hearing on the motion in order to rule upon it.
(4) Every written motion may be accompanied by, or included in, a written memorandum stating the grounds upon which the motion is based. Other parties to a proceeding may, within seven (7) days of service of a written motion, file written memoranda in opposition.
(k) Motions in opposition to proceeding. Motions in opposition to a proceeding include motions to dismiss, to strike, and for a more definite statement and shall be filed within twenty (20) days of service of the notice of hearing. Unless waived by the parties, the Ethics Commission shall hold a hearing and rule on the motion.
(l) Prehearing conferences. The chairperson, or a member of the Ethics Commission designated by the chairperson, may conduct one or more prehearing conferences for the purpose of hearing arguments on pending motions, clarifying and simplifying issues, discussing the possibilities of settlement of the issues, examining exhibits and documents, exchanging names and addresses of witnesses, and resolving other procedural matters.
(m) Exchange of witness lists. Unless otherwise ordered by the chairperson or a member of the Ethics Commission designated by the chairperson as a result of a prehearing conference, the Advocate and the respondent(s) or counsel for respondent(s) shall exchange the names and addresses of witnesses at least ten (10) days prior to the public hearing, with a copy being provided to the chairperson. Names and addresses of witnesses discovered subsequently shall be disclosed to the other party or parties and to the chairperson as soon as possible. Failure to disclose the name and address of a witness may result in the exclusion of the witness's testimony, according to the rule applied in civil judicial proceedings.
(n) Procedures for public hearings.
(1) Presentation of the case. The Advocate shall present his or her case first. Respondent may then present his or her case. Rebuttal evidence may be permitted in the discretion of the Ethics Commission.
(2) Opening and closing statements. Opening and closing statements may be presented by the Advocate and the respondent. The Advocate may make the first statement and the respondent may follow. Rebuttal by the Advocate may be permitted or may be denied.
(a) Stipulations may be received and are encouraged as to uncontested matters.
(b) Oral evidence shall be taken only on oath or affirmation.
(c) The respondent and the Advocate shall have the right: to present evidence relevant to the issue; to cross-examine opposing witnesses on any matter relevant to the issue; and to impeach any witness regardless of who first called him or her to testify.
(d) The hearing shall not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence may be admitted. Hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding. The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions. Irrelevant and unduly repetitious evidence shall be excluded. The Ethics Commission shall not allow the introduction into evidence of an affidavit of a person when that person can be called to testify; this shall not preclude the admission of a deposition of such a person, however, for any reason permissible in a court of law under the Florida Rules of Civil Procedure.
(4) Transcript of proceedings. The proceedings shall be recorded by recording instruments or by a court reporter. Respondent may, at his or her own expense, provide a court reporter or recording instruments. The Ethics Commission may provide a court reporter. No transcript of the proceedings shall be prepared unless requested by the Ethics Commission or by the respondent. If the respondent requests that a transcript be prepared by a court reporter, the respondent shall pay the expense of transcription. If the respondent requests that the Ethics Commission prepare a transcript from recording instruments and the Ethics Commission grants such request, the respondent shall pay the Ethics Commission the actual cost of transcription. If a court reporter records the proceedings, the court reporter's transcript shall be the official transcript.
(5) Proposed public report. After the conclusion of the hearing, the respondent and the Advocate may present written proposed public reports, within a time designated by the chairperson or a member of the Ethics Commission designated by the chairperson. If a proposed public report is filed by the respondent or the Advocate each proposed finding in the proposal that is rejected shall be accompanied by a statement summarizing the reasons for rejection.
(o) Motions to dismiss filed by Advocate. After probable cause is found and a public hearing is ordered by the Ethics Commission and after further investigation or discovery is made by the Advocate, the Advocate may move to dismiss the proceeding if the Advocate concludes that there is insufficient evidence to proceed to the public hearing in good faith. Such a motion shall specifically state the grounds upon which it is made.
(p) Upon completion of any investigation initiated under this subsection, the Ethics Commission shall make a finding and public report as to whether any provision within its jurisdiction has been violated. If the Ethics Commission finds, based upon clear and convincing evidence in the record, that a violation has been committed, the Ethics Commission shall issue an order imposing the appropriate penalty as provided in the ordinance being enforced. The Ethics Commission shall, within eighteen (18) months of the filing of a complaint, render a final order disposing of said complaint. If a person fails to comply with an order issued by the Ethics Commission, the Ethics Commission may make application to any circuit court of this State which shall have jurisdiction to order the violator to comply with the order of the Ethics Commission. Any violator who fails to obey the order may be punished by the court.
(q) The Ethics Commission shall notify the State Attorney or any other appropriate official or agency having authority to initiate prosecution when a violation of criminal law is indicated. The Ethics Commission shall notify the State of Florida Commission on Ethics, the State Attorney, the U.S. Attorney for the Southern District of Florida and other appropriate law enforcement agencies within ten (10) days of a finding of no probable cause or of a final order disposing of a complaint.
(r) Exhaustion of municipal remedies. Where a municipal Code of Ethics Ordinance, Conflict of Interest Ordinance or Lobbyist Registration and Reporting Ordinance provides for a municipal administrative remedy, a complainant shall be required to exhaust his or her municipal administrative remedies prior to filing a written complaint with the Ethics Commission.
(s) Notwithstanding any other provision of this ordinance, the Ethics Commission may, at its discretion, (i) dismiss any complaint at any stage of disposition should it determine that the public interest would not be served by proceeding further, or (ii) dismiss any complaint at any stage of disposition and issue a letter of instruction to the respondent when it appears that the alleged violation was inadvertent, unintentional or insubstantial. In the event the Ethics Commission dismisses a complaint as provided in this subsection (s), the Ethics Commission shall issue a public report stating with particularity its reasons for the dismissal. The Ethics Commission may, at the request of the State Attorney or any other law enforcement agency, stay an ongoing proceeding. The Ethics Commission shall not interfere with any ongoing criminal investigation of the State Attorney or U.S. Attorney for the Southern District of Florida.
(t) Attorney's fees. In any case in which the Ethics Commission finds no probable cause to believe that a violation has been committed or determines that the complaining party filed a frivolous or groundless complaint, the Ethics Commission shall order the complaining party to pay any costs and attorney's fees incurred by the Ethics Commission and/or the alleged violator. The determination by the Ethics Commission regarding whether a complaint is frivolous or groundless shall be deemed conclusive. The County Commission or any city commission may pay any attorney's fees and costs incurred by a respondent when the Ethics Commission finds either no probable cause to believe that a violation has been committed or that no violation has been committed.
(u) The provisions of this article shall be deemed supplemental to any other applicable Dade County ordinance or state or federal law and are not intended to replace or repeal any provision of state or federal law or of the Dade County Code.
(v) Prospective jurisdiction. The Ethics Commission shall be empowered to consider alleged violations within its jurisdiction committed on or after the effective date of this ordinance. Any alleged violation committed before the effective date of this ordinance shall be governed by the applicable County or municipal Code of Ethics Ordinances, Conflict of Interest Ordinances or Lobbyist Registration and Reporting Ordinances in effect at the time of the alleged violations.
(w) Personnel proceeding. Where an employee of Dade County or a municipality within Dade County is alleged to have violated an ordinance within the jurisdiction of the Ethics Commission and, based upon the same set of facts, is subject to an ongoing disciplinary action initiated by Dade County or a municipality, the Ethics Commission shall stay consideration of a complaint until the conclusion of the personnel proceeding.
(x) Statute of limitations. Unless provided otherwise in a County or municipal Code of Ethics Ordinance, Conflict of Interest Ordinance or Lobbyist Registration and Reporting Ordinance, no action may be taken on a complaint filed more than one (1) year after the violation is alleged to have occurred unless a person, by fraud or other device, prevents discovery of the violation.
(y) Advisory opinion. Any person within the Ethics Commission's jurisdiction, when in doubt about the applicability or interpretation of any provision within the Ethics Commission's jurisdiction, to himself or herself in a particular context, may submit in writing the facts of the situation to the Ethics Commission with a request for an advisory opinion to establish the standard of public duty, if any. An advisory opinion shall be rendered by the Ethics Commission on a timely basis, and each such opinion shall be numbered, dated and published. Such opinion, until amended or revoked, shall be binding on the conduct of the official or candidate who sought the opinion or with reference to whom the opinion was sought, unless material facts were omitted or misstated in the request for the advisory opinion.
Sec. 10. Appeals.
(a) Any final order where the Ethics Commission finds that a violation has been committed or any advisory opinion issued by the Ethics Commission shall be subject to review in accordance with the Florida Rules of Appellate Procedure. The Ethics Commission shall provide the index and record on appeal when required by, and in accordance with, the Florida Rules of Appellate Procedure. A fee may be charged by the Ethics Commission for the preparation and transmission of the record on appeal to the court of appropriate jurisdiction. Such fee may be waived by the Executive Director if the party requesting the record is indigent.
(b) Costs or fees may not be assessed against the Ethics Commission in any appeal from a final order or advisory opinion issued by the Ethics Commission pursuant to this chapter.
(c) Unless specifically ordered by the Ethics Commission or by a court of competent jurisdiction, the commencement of an appeal does not suspend or stay a final order or advisory opinion of the Ethics Commission.
Section 2. Chapter 2, Section 2-11.1 of the Code of Metropolitan Dade County, Florida, is amended as follows:1
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Sec. 2-11.1. Conflict of Interest and Code of Ethics Ordinance.
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(b) Definitions. For the purposes of this section the following definitions shall be effective:
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>>(11) The term "Ethics Commission" shall refer to the Metropolitan Dade County Commission on Ethics and Public Trust.<<
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(r) [[County Attorney]] >>Ethics Commission<< to render opinions on request. Whenever any person included in the terms defined in subsection (b)(1) through (6) and subsection (b)(9) is in doubt as to the proper interpretation or application of this Conflict of Interest and Code of Ethics Ordinance as to himself >>or herself<<, or whenever any person who renders services to the County is in doubt as to the applicability of the said ordinance as to himself >>or herself<<, he >>or she<< may submit to the [[County Attorney]] >>Ethics Commission<< a full written statement of the facts and questions he >>or she<< has. The [[County Attorney]] >>Ethics Commission<< shall then render an opinion to such person and shall publish these opinions without use of the name of the person advised unless such person requests the use of his >>or her<< name.
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(8) The [[Clerk of the Board]] >>Ethics Commission<< shall investigate any person engaged in lobbying activities who may be in violation of this subsection (s). [[The County Attorney shall report the results of the investigation to the County Commission.]] >>In the event that a violation is found to have been committed,<< [[T]]>>t<
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>>(t) Powers and jurisdiction of Ethics Commission. The Ethics Commission shall be empowered to review, interpret, render advisory opinions and letters of instruction and enforce the Conflict of Interest and Code of Ethics Ordinance. Jurisdiction of the Ethics Commission shall automatically extend to Commissioners, autonomous personnel, quasi-judicial personnel, departmental personnel, immediate family and lobbyists as defined in subsections (b) and (s) who are required to comply with the Conflict of Interest and Code of Ethics Ordinance. Jurisdiction of the Ethics Commission may extend to employees, advisory personnel and immediate family as defined in subsection (b) who are required to comply with the Conflict of Interest and Code of Ethics Ordinance if at least two (2) members of the Ethics Commission vote to assume jurisdiction. In the event that the Ethics Commission does not assume jurisdiction as provided in the preceding sentence, the Ethics Commission may refer the complaint to the State Attorney for appropriate action. Notwithstanding the foregoing, the Ethics Commission shall not have jurisdiction to consider an alleged violation of subsection (c) if the requirements of subsection (c) have been waived for a particular transaction as provided therein.<<
[[(t)]] >>(u)<< Penalty.
>>(1) Proceeding before Ethics Commission. A finding by the Ethics Commission that a person has violated this section shall subject said person to an admonition or public reprimand and/or a fine of two hundred fifty dollars ($250.00) for the first such violation and five hundred dollars ($500.00) for each subsequent violation.
(2) Prosecution by State Attorney in State court.<< Every person who is convicted of a violation of this section >>in State court<< shall be punished by a fine not to exceed five hundred dollars ($500.00) or imprisonment in the County Jail for not more than thirty (30) days, or by both such fine and imprisonment.
Section 3. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 4. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Metropolitan Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 5. For fiscal year 1997-1998, financial support for the Ethics Commission pursuant to the official Dade County budget shall not exceed two hundred eighty thousand dollars ($280,000). This amount may be supplemented by grants, contributions or appropriations from the Federal government, State government or any municipality within Dade County as provided in Section 8 (Financial support for Ethics Commission).
Section 6. The County Attorney is directed to prepare a resolution to be considered by the County Commission urging the Florida Legislature to amend Florida Statutes to require the Florida Commission on Ethics to dismiss a complaint where: (1) the complaining party filed a parallel complaint, arising out of a common nucleus of operative facts, with the Dade County Ethics Commission which resulted in a finding of no probable cause or a final order disposing of the complaint; (2) the State law upon which the Florida Commission on Ethics complaint is based is not materially different from the provisions of the county or municipal ordinance applied by the Dade County Ethics Commission when resolving the parallel complaint; and (3) the proceedings before the Dade County Ethics Commission regarding the parallel complaint were full and fair.
Section 7. This ordinance shall stand repealed two (2) years from its effective date.
Section 8. This ordinance shall become effective sixty (60) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.
1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.
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