§ 2-56.28.17. Remedies.

(1)

Any employee protected by this division who has the right to file an appeal of an adverse personnel action under Section 2-47 shall also have the right to have the hearing examiner appointed under that section consider the issue of whether the adverse action was in violation of this division. The hearing examiner shall include in his findings of fact and conclusions a determination of whether the adverse action was in violation of this section and shall recommend an appropriate remedy.

(2)

Any employee protected by this division who does not have the right to file an appeal under Section 2-47 may file a written complaint within sixty (60) days after the action prohibited by this division with the Miami-Dade County Personnel Director. The Director shall refer the complaint to a panel of impartial persons from whom a hearing examiner shall be selected. The panel shall be comprised of all persons available to serve as a hearing examiner under Section 2-47. Such hearing examiners may be paid a fee for their services, but shall not be deemed County officials or employees within the purview of Sections 2-10.2, 2-11.1 or otherwise. The hearing examiner shall conduct a hearing after notice to the complainant and the County department, political subdivision or special district involved. The hearing shall be conducted in accordance with the procedures applicable to hearings under Section 2-47, except as may be provided herein. Any interested party may procure the attendance of witnesses and the production of records at such hearing in the manner provided by Section 2-50. All hearings requested pursuant to this paragraph shall be commenced insofar as is practicable within sixty (60) days of the Personnel Director's receipt of the complaint, except that the Director shall have the authority to extend such time for reasonable cause.

(3)

The hearing examiner shall transmit his findings of facts, conclusions of law and any recommendations together with a transcript of all evidence taken before him and all exhibits received by him to the County Mayor or Mayor's designee for a final decision. The Mayor or Mayor's designee may sustain, reverse or modify the adverse personnel action. In any case in which the hearing examiner finds that the employee filed a frivolous complaint in bad faith, the hearing examiner may recommend and the Mayor or Mayor's designee may direct the employee to pay the costs of the hearing, including the employer's attorney's fees.

(4)

Investigation by Ethics Commission. In addition to the remedies set forth above:

(a)

Any employee protected under this division who alleges retaliation may, only after exhausting available administrative remedies (i) under section 2-47, (ii) this division, or (iii) an applicable collective bargaining agreement, file a written complaint with the Miami-Dade County Ethics Commission alleging a prohibited personnel action, no later than 60 days after a final written decision regarding an alleged prohibited personnel action has been rendered under the administrative or contractual procedures referenced above. The sole purpose of such complaint is to determine whether, in addition to any findings or determination made in any of the above-referenced administrative or contractual proceedings, there has been a violation of this division and not to change, rehear or revisit the determination, findings, actions taken or discipline imposed, if any, pursuant to any of the aforementioned administrative or contractual proceedings.

(b)

Within ten working days after receiving a complaint under this division, the Ethics Commission shall acknowledge receipt of the complaint and provide copies of the complaint to the employee accused of retaliation and the Department Director of the department in which such employee is employed.

(c)

Upon the filing of a complaint with the Ethics Commission under this division, the Ethics Commission shall:

(i)

Conduct a preliminary investigation, to the extent necessary, to determine whether there is probable cause to believe that a prohibited personnel action under this division, has occurred.

(ii)

Within 90 days after receiving the complaint in compliance with subsection (4)(a) herein, provide the accused employee, the Department Director of the department in which the accused employee is employed and the complainant with a copy of a probable cause memorandum and conduct a probable cause hearing before the Ethics Commission which shall make a determination as to whether there is probable cause to believe retaliation prohibited by this division has occurred. The probable cause memorandum and the final written decision and findings of the administrative or contractual proceedings referenced in subsection (4)(a) herein shall be presumed admissible in any Ethics Commission hearing conducted under this division.

(iii)

Based on its probable cause determination, recommend to the County Mayor an appropriate course of action. In response to such a recommendation, the County Mayor shall thereafter be required to make a written determination of the appropriate remedial action, if any, to be taken in accordance with Section 2-56.28.18.

(d)

The time limits regarding the actions to be taken by the Ethics Commission set forth in subsections (b) and (c) may be extended by the Ethics Commission for good cause.

(5)

Any employee found by the Ethics Commission to have retaliated against another County employee in violation of this division, shall be considered to have committed a violation of the County's Code of Ethics and shall be subject to the penalties set forth in the County's Code of Ethics set forth in section 2-11.1 of the Code and disciplinary action up to and including dismissal from County employment.

(Ord. No. 94-107, § 1, 6-9-94; Ord. No. 07-63, § 1, 5-8-07; Ord. No. 10-75, § 1, 11-4-10; Ord. No. 15-120, § 1, 10-20-15)