Florida Administrative Code › 34 - COMMISSION ON ETHICS › 34 - Departmental › Chapter 34-5 - REVIEW, INVESTIGATION AND HEARING OF COMPLAINTS › Section 34-5.0291 - Award of Attorney's Fees

Current through Reg. 50, No. 138; July 16, 2024
(1) If the
				Commission determines that a person has filed a complaint against a public
				officer or employee with a malicious intent to injure the reputation of such
				officer or employee by filing the complaint with knowledge that the complaint
				contains one or more false allegations or with reckless disregard for whether
				the complaint contains false allegations of fact material to a violation of the
				Code of Ethics, the complainant shall be liable for costs plus reasonable
				attorney's fees incurred in the defense of the person complained against,
				including the costs and reasonable attorney's fees incurred in proving
				entitlement to and the amount of costs and fees.
(2) The Commission shall make such a
				determination only upon a petition for costs and attorney's fees filed with the
				Commission by the public officer or employee complained against within 30 days
				following a dismissal of the complaint. Such petition shall state with
				particularity the facts and grounds which would prove entitlement to costs and
				attorney's fees and shall include the amount of such costs and attorney's fees
				expended by, or on behalf of, such petitioner through the date of the filing of
				the petition. Staff shall forward a copy of said petition to the complainant by
				certified mail, return receipt requested.
(3) If the facts and grounds alleged in the
				petition are not sufficient to state a claim for costs and reasonable
				attorney's fees, the Commission shall dismiss the petition after an informal
				proceeding. If the Commission determines that the facts and grounds are
				sufficient, the Chair after considering the Commission's workload, shall direct
				that the hearing of the petition be held before the Division of Administrative
				Hearings, the full Commission, or a single Commission member serving as hearing
				officer. Commission hearing officers shall be appointed by the Chair. The
				hearing shall be a formal proceeding under Chapter 120, F.S., and the Uniform
				Rules of the Administration Commission, Chapter 28-106, F.A.C. All discovery
				and hearing procedures shall be governed by the applicable provisions of
				Chapter 120, F.S. and Chapter 28-106, F.A.C. The parties to the hearing shall
				be the petitioner (i.e., the public officer or employee who was the respondent
				in the complaint proceeding) and the complainant(s), who may be represented by
				legal counsel.
(4) The petitioner
				has the burden of proving the grounds for an award of costs and attorney's
				fees.
(5) If the petition is heard
				by the full Commission, it shall direct staff to prepare an order complying
				with Chapter 120, F.S., incorporating its findings and either granting or
				denying the petition. The draft of that order shall be modified or adopted at
				the next Commission meeting.
(6) If
				the petition is heard by a Commission hearing officer or, DOAH administrative
				law judge, in order to assist the Commission in evaluating any exceptions that
				may have been filed, Commission staff will provide a draft final order
				analyzing the exceptions. Copies shall be provided to the parties prior to the
				final hearing.
Rulemaking Authority
					 112.322(9) FS.
					 Law Implemented 112.317(8),
					 112.322,
					 112.324
					 FS.
New 2-16-95, Amended 7-28-98, 7-30-00,
					 9-4-12.