§ 106.25 Reports of alleged violations to Florida Elections Commission; disposition of findings.

(4) The commission shall undertake a preliminary investigation to determine if the facts alleged in a sworn complaint or a matter initiated by the division constitute probable cause to believe that a violation has occurred.

(a) When the investigator’s report is completed, the executive director shall notify the respondent that the report is completed and shall send to the respondent a copy of the investigator’s report. The investigatory file and main complaint file shall be open for inspection by the respondent and the respondent’s counsel at that time, and copies may be obtained at no more than cost.

(b) The respondent shall be given not less than 14 days from the date of mailing of the investigator’s report to file with the commission a written response to the investigator’s report. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the commission so long as reasonable notice under the circumstances is given.

(c) Counsel for the commission shall review the investigator’s report and shall make a written recommendation to the commission for the disposition of the complaint. If the counsel for the commission recommends that the commission find probable cause, the recommendation shall include a statement of what charges shall be at issue. A copy of the recommendation shall be furnished to the respondent. The respondent shall be given not less than 14 days from the date of mailing of the recommendation of counsel for the commission to file with the commission a written response to the recommendation. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the commission, so long as the recommendation is furnished to the respondent within a reasonable period of time under the circumstances.

(d) The respondent and each complainant, their counsel, and the counsel for the commission shall be permitted to attend the hearing at which the probable cause determination is made. Notice of the hearing shall be sent to the respondent, each complainant, and counsel for the commission at least 14 days before the hearing. This time period may be shortened with the consent of the respondent, or without the consent of the respondent when the passage of time could reasonably be expected to render moot the ultimate disposition of the matter by the commission, so long as the notice is furnished within a reasonable period of time under the circumstances.

(e) The probable cause determination is the conclusion of the preliminary investigation. The respondent and the counsel for the commission shall be permitted to make brief oral statements in the nature of oral argument to the commission, based on the investigator’s report, before the probable cause determination. The commission’s determination shall be based upon the investigator’s report, the recommendation of counsel for the commission, the complaint, and staff recommendations, as well as any written statements submitted by the respondent and any oral statements made at the hearing. No testimony or other evidence will be accepted at the hearing.

(f) At its meeting to determine probable cause, the commission may continue its determination to allow further investigation; may order the issuance of a public report of its investigation if it finds no probable cause to believe that there has been a violation of this chapter or chapter 104, concluding the matter before it; may order a final, public hearing of the complaint if it finds probable cause to believe that there has been a violation of this chapter or chapter 104; or may take such other action as it deems necessary to resolve the complaint, consistent with due process of law. In making its determination, the commission may consider:

1. The sufficiency of the evidence against the respondent, as contained in the investigator’s report;
2. The admissions and other stipulations of the respondent, if any;
3. The nature and circumstances of the respondent’s actions;
4. The expense of further proceedings; and
5. Such other factors as it deems material to its decision.

If the commission finds probable cause, the commission shall determine what charges shall be at issue.

(g) If no probable cause is found, the commission shall dismiss the case and the case shall become a matter of public record, except as otherwise provided in this section, together with a written statement of the findings of the preliminary investigation and a summary of the facts which the commission shall send to the complainant and the alleged violator. A finding of no probable cause by the commission is a full adjudication of all such matters. The commission may not charge a respondent in a subsequent complaint alleging violations based upon the same actions, nonactions, or circumstances wherein the commission found no probable cause.

(h) If probable cause is found, the commission shall so notify the complainant and the alleged violator in writing. All documents made or received in the disposition of the complaint shall become public records upon a finding by the commission.

(i)

1. Upon a commission finding of probable cause, the counsel for the commission shall attempt to reach a consent agreement with the respondent. At any time, the commission may enter into a consent order with a respondent without requiring the respondent to admit to a violation of law within the jurisdiction of the commission.
2. A consent agreement is not binding upon either party unless and until it is signed by the respondent and by counsel for the commission upon approval by the commission.
3. Nothing herein shall be construed to prevent the commission from entering into a consent agreement with a respondent prior to a commission finding of probable cause if a respondent indicates in writing a desire to enter into negotiations directed towards reaching such a consent agreement. Any consent agreement reached under this subparagraph is subject to the provisions of subparagraph 2. and shall have the same force and effect as a consent agreement reached after the commission finding of probable cause.

(j) If a consent agreement is reached between the commission and the respondent, counsel for the commission shall send a copy of the signed agreement to both complainant and respondent.

In a case where probable cause is found, the commission shall make a preliminary determination to consider the matter or to refer the matter to the state attorney for the judicial circuit in which the alleged violation occurred. Notwithstanding any other provisions of this section, the commission may, at its discretion, dismiss any complaint at any stage of disposition if it determines that the public interest would not be served by proceeding further, in which case the commission shall issue a public report stating with particularity its reasons for the dismissal.

(7) Every sworn complaint filed pursuant to this chapter with the commission, every investigation and investigative report or other paper of the commission with respect to a violation of this chapter or chapter 104, and every proceeding of the commission with respect to a violation of this chapter or chapter 104 is confidential, is exempt from the provisions of ss. 119.07(1) and286.011, and is exempt from publication in the Florida Administrative Register of any notice or agenda with respect to any proceeding relating to such violation, except under the following circumstances:

(a) As provided in subsection (6);

(b) Upon a determination of probable cause or no probable cause by the commission; or

(c) For proceedings conducted with respect to appeals of fines levied by filing officers for the late filing of reports required by this chapter.

However, a complainant is not bound by the confidentiality provisions of this section. In addition, confidentiality may be waived in writing by the person against whom the complaint has been filed or the investigation has been initiated. If a finding of probable cause in a case is entered within 30 days prior to the date of the election with respect to which the alleged violation occurred, such finding and the proceedings and records relating to such case shall not become public until noon of the day following such election. When two or more persons are being investigated by the commission with respect to an alleged violation of this chapter or chapter 104, the commission may not publicly enter a finding of probable cause or no probable cause in the case until a finding of probable cause or no probable cause for the entire case has been determined. However, once the confidentiality of any case has been breached, the person or persons under investigation have the right to waive the confidentiality of the case, thereby opening up the proceedings and records to the public. Any person who discloses any information or matter made confidential by the provisions of this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

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