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florida > The Florida Election Code > Campaign Financing

§ 106.26 Powers of commission; rights and responsibilities of parties; findings by commission.

Overview of Statute

This statute governs the process by which the Elections Commission handles sworn complaints and how the Commission conducts hearings to consider the complaints.

Statute

(1) The commission shall, pursuant to rules adopted and published in accordance with chapter 120, consider all sworn complaints filed with it and all matters reported to it by the Division of Elections. In order to carry out the responsibilities prescribed by this chapter, the commission is empowered to subpoena and bring before it, or its duly authorized representatives, any person in the state, or any person doing business in the state, or any person who has filed or is required to have filed any application, document, papers, or other information with an office or agency of this state or a political subdivision thereof and to require the production of any papers, books, or other records relevant to any investigation, including the records and accounts of any bank or trust company doing business in this state. Duly authorized representatives of the commission are empowered to administer all oaths and affirmations in the manner prescribed by law to witnesses who shall appear before them concerning any relevant matter. Should any witness fail to respond to the lawful subpoena of the commission or, having responded, fail to answer all lawful inquiries or to turn over evidence that has been subpoenaed, the commission may file a complaint in the circuit court where the witness resides setting up such failure on the part of the witness. On the filing of such complaint, the court shall take jurisdiction of the witness and the subject matter of said complaint and shall direct the witness to respond to all lawful questions and to produce all documentary evidence in the witness’s possession which is lawfully demanded. The failure of any witness to comply with such order of the court shall constitute a direct and criminal contempt of court, and the court shall punish said witness accordingly. However, the refusal by a witness to answer inquiries or turn over evidence on the basis that such testimony or material will tend to incriminate such witness shall not be deemed refusal to comply with the provisions of this chapter. The sheriffs in the several counties shall make such service and execute all process or orders when required by the commission. Sheriffs shall be paid for these services by the commission as provided for in s. 30.231. Any person who is served with a subpoena to attend a hearing of the commission also shall be served with a general statement informing him or her of the subject matter of the commission’s investigation or inquiry and a notice that he or she may be accompanied at the hearing by counsel of his or her own choosing.

(2) All witnesses summoned before the commission, other than on the request of the subject of a hearing, shall receive reimbursement for travel expenses and per diem at the rates provided in s.112.061. However, the fact that such reimbursement is not tendered at the time the subpoena is served shall not excuse the witness from appearing as directed therein.
(3) Upon request of any person having business before the commission, and with the approval of a majority of the commission, the chair or, in the chair’s absence, the vice chair shall instruct all witnesses to leave the hearing room and retire to a designated place. The witness will be instructed by the chair or, in the chair’s absence, the vice chair not to discuss his or her testimony or the testimony of any other person with anyone until the hearing has been adjourned and the witness discharged by the chair. The witness shall be further instructed that should any person discuss or attempt to discuss the matter under investigation with him or her after receiving such instructions the witness shall bring such matter to the attention of the commission. No member of the commission or representative thereof may discuss any matter or matters pertinent to the subject matter under investigation with witnesses to be called before the commission from the time that these instructions are given until the hearing has been adjourned and the witness discharged by the chair.
(4) The commission, when interrogating witnesses as provided herein, shall cause a record to be made of all proceedings in which testimony or other evidence is demanded or adduced. This record shall include rulings of the chair, questions of the commission and its counsel, testimony or responses of witnesses, sworn written statements submitted to the commission, and all other pertinent matters. A witness at a hearing, upon his or her advance request and at his or her own expense, shall be furnished a certified transcript of all testimony taken at the hearing.
(5) Before or during a hearing, any person noticed to appear before the commission, or the person’s counsel, may file with the commission, for incorporation into the record of the hearing, sworn written statements relevant to the purpose, subject matter, and scope of the commission’s investigation or inquiry. Any such person shall, however, prior to filing such statement, consent to answer questions from the commission regarding the contents of the statement.
(6) Any person whose name is mentioned or who is otherwise identified during a hearing being conducted by the commission and who, in the opinion of the commission, may be adversely affected thereby may, upon his or her request or upon the request of any member of the commission, appear personally before the commission and testify on his or her own behalf or, with the commission’s consent, file a sworn written statement of facts or other documentary evidence for incorporation into the record of the hearing. Any such person shall, however, prior to filing such statement, consent to answer questions from the commission regarding the contents of the statement.
(7) Upon the consent of a majority of its members, the commission may permit any other person to appear and testify at a hearing or submit a sworn written statement of facts or other documentary evidence for incorporation into the record thereof. No request to appear, appearance, or submission shall limit in any way the commission’s power of subpoena. Any such person shall, however, prior to filing such statement, consent to answer questions from the commission regarding the contents of the statement.
(8) Any person who appears before the commission pursuant to this section shall have all the rights, privileges, and responsibilities of a witness appearing before a court of competent jurisdiction.
(9) If the commission fails in any material respect to comply with the requirements of this section, any person subject to subpoena or subpoena duces tecum who is injured by such failure shall be relieved of any requirement to attend the hearing for which the subpoena was issued or, if present, to testify or produce evidence therein; and such failure shall be a complete defense in any proceeding against such person for contempt or other punishment.
(10) Whoever willfully affirms or swears falsely in regard to any material matter or thing before the commission shall be guilty of a felony of the third degree and punished as provided by s. 775.082, s. 775.083, or s. 775.084.
(11) At the conclusion of its hearings concerning an alleged violation, the commission shall immediately begin deliberations on the evidence presented at such hearings and shall proceed to determine by affirmative vote of a majority of the members present whether a violation of this chapter or chapter 104 has occurred. Such determination shall promptly be made public. The order shall contain a finding of violation or no violation, together with brief findings of pertinent facts, and the assessment of such civil penalties as are permitted by this chapter or no such assessment and shall bear the signature or facsimile signature of the chair or vice chair.
(12) The commission by rule may determine violations which constitute minor offenses that can be resolved without further investigation by means of a plea of nolo contendere and payment of a fine.
(13) The commission may not issue advisory opinions and must, in all its deliberations and decisions, adhere to statutory law and advisory opinions of the division.

History:

s. 26, ch. 73-128; s. 12, ch. 74-200; s. 60, ch. 77-175; s. 4, ch. 78-403; s. 64, ch. 79-400; s. 1, ch. 82-46; s. 2, ch. 83-265; s. 21, ch. 89-256; ss. 6, 14, 15, ch. 90-338; s. 74, ch. 91-45; s. 5, ch. 91-429; s. 2, ch. 94-170; s. 1396, ch. 95-147; s. 50, ch. 97-13; s. 35, ch. 98-129; s. 71, ch. 2011-40.

Definition [Issue]

A proposition that is required by the State Constitution, by law or resolution of the Legislature, or by the charter, ordinance, or resolution of a political subdivision of this state to be submitted to the electors for their approval or rejection at an election, or a proposition for which a petition is circulated in order to have such proposition placed on the ballot at an election.

Definition [Person]

An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee.

Definition [Division]

The Division of Elections of the Department of State.

Definition [Election]

Any primary election, special primary election, special election, general election, or presidential preference primary election.

Cases

florida Cases

Case Name: Florida Elections Commission v. Blair

Citation: 52 So.3d 9

Year: 2010

Case URL: https://www.ravellaw.com/opinions/149165e0519ac6b8e984b2df3881c0a4?query=52%20So[...]

Case Summary: Florida Elections Commission v. Blair held that the Commission did not exceed its grant of authority in adopting a rule defining the words "willful" and "willfully" for a campaign finance statute, and the adoption of the rule did not contravene the language in the law being implemented.

Out-of-State Cases

Federal Cases

Regulations & Guidance

Additional Resources

Further Reading

  • Fla. Jur. 2d Elections s 212, By Florida Elections Commission-Procedure

  • Fla. Jur. 2d Elections s 216, False swearing or declaration

  • Lobbying, PACs, and Campaign Finance s 11:106, Special state issues