§ 2-1074. Procedure on complaint of violation or request for advisory opinion within Ethics Commission's jurisdiction.

(a)

Legally sufficient complaint.

(1)

Upon a written complaint filed by the Inspector General, the Advocate or the State Attorney which alleges a violation within the jurisdiction of the Ethics Commission, the Ethics Commission shall conduct an investigation of said complaint. Any complaint filed by the Inspector General, the Advocate or the State Attorney shall be sworn to by the person filing the complaint before a notary public and shall contain the following language: Personally known to me and appeared before me, _______, whose signature appears below, being first duly sworn, says that the allegations set forth in this complaint are based upon facts which have been sworn to as true by a material witness or witnesses and which if true would constitute the offenses alleged and that this complaint is instituted in good faith. Within five (5) days after receipt of a complaint by the Ethics Commission, a copy of the complaint shall be sent to the alleged violator.

(2)

Upon a written complaint, except for a complaint filed by the Inspector General, the Advocate or the State Attorney as provided for in Section 2-1074 (a) (1), 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 thirty (30) 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. Where a complaint is filed pursuant to subsection (a)(1), the Ethics Commission shall within sixty (60) days from the receipt of the complaint, unless extended by the Ethics Commission for good cause, determine whether the complaint is legally sufficient. 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. Where a complaint is filed pursuant to subsection (a)(1), the Ethics Commission shall make a probable cause determination within sixty (60) days from the date the complaint is filed. Where a complaint is filed pursuant to subsection (a)(2), the Ethics Commission shall make a probable cause determination within sixty (60) days from the date the complaint is filed. 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 Miami-Dade County. The public hearing provided for in this Section 2-1074 shall be held within sixty (60) days of the probable cause determination unless extended by the Ethics Commission for good cause.

(c)

Investigations. Investigations shall be conducted by Ethics Commission staff or by any other person or agency so designated by the Ethics Commission under the supervision of the Executive Director and/or the Inspector General. 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.

(d)

Counsel.

(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 2-1072, 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 2-1074(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 of Chapter 119, Florida Statutes.

(f)

[Response.] 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 2-1074(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 2-1074(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 2-1074(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 (1) 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.

(3)

Evidence.

(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. The motion shall be heard by the Ethics Commission in accordance with the procedure provided for in subsection (k).

(p)

Public order imposing penalty. 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 public report and final order shall include a determination as to whether the violation was intentional or unintentional. 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)

[Initiating prosecution.] 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)

Dismissal of complaints. 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 Commission or insubstantial. In the event the Ethics dismisses a complaint 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)

Frivolous or groundless complaints. In any case in which the Ethics Commission determines that the complaining party filed a frivolous or groundless complaint as defined in Section 57.105, Florida Statutes, 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)

[Other applicable laws.] The provisions of this article shall be deemed supplemental to any other applicable Miami-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 Miami-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 Miami-Dade County or a municipality within Miami-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 Miami-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, Ethical Campaign Practices Ordinance or Lobbyist Registration and Rating Ordinance, no action may be taken on a complaint filed more than three (3) years after the violation is alleged to have accrued unless a person, by fraud or other device, prevents discovery of the violation. Where the allegations are the subject of a personnel proceeding or where the complainant is required to exhaust his or her administrative remedies prior to filing a complaint, the statute of limitations shall be tolled until the termination of said personnel proceeding or the exhaustion of administrative remedies.

(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.

(Ord. No. 97-105, § 1(9), 7-8-97; Ord. No. 98-94, § 2, 7-7-98; Ord. No. 99-149, § 1, 10-19-99; Ord. No. 06-149, § 1, 10-10-06)