§ 2-455. Investigation of alleged violations.

(a)

Administrative processing. A complaint form shall be adopted separately by administrative regulation. All complaints shall be filed with the Orange County Office of Ombudsman or other office as designated by the County Administrator. The determination of jurisdiction shall be made by the County Investigative Officer as follows:

(1)

Receipt of sworn complaint by County Investigative Officer. Such sworn complaint shall be based upon personal information or information other than hearsay and the complaint shall allege all violations that arise from the facts or allegations in a complaint.

(2)

Notification to respondent of receipt of complaint.

(3)

Review of all documents and legal basis for the complaint.

(4)

Interviews with County personnel and/or divisions or departments where necessary to develop a preliminary report finding jurisdiction or lack thereof.

(5)

Determination of whether respondent will seek to rely upon advice, provided in writing, by the County Ethics Officer. If yes, a copy of the written document shall be provided to the County Investigative Officer and is an affirmative defense to any relevant allegation of violation of this article.

(6)

Making the initial jurisdictional determination regarding further action pursuant to this section as follows:

a.

For a determination of jurisdiction to be found by the County Investigative Officer the complaint shall be based solely on issues related to the local code of ethical standards described in section 2-453 of this Code.

b.

If the same or similar complaint is filed with the state commission on ethics, the County may abate its case under this article until the separate complaint is resolved or dismissed by the state.

c.

If no jurisdiction is found, or if it can be concluded from the face of the complaint that the applicable period of limitation has run, the case shall be closed, notice of a finding of no jurisdiction shall be sent to respondent and complainant, and the matters at issue shall not be the basis for any subsequent complaint alleging violations based upon the same action, nonaction, or circumstance.

d.

If jurisdiction is found, the following shall be provided to the respondent and complainant:

1.

A written determination of jurisdiction identifying specific Code sections;

2.

A recommendation as to probable cause; and

3.

A recommendation as to fine or other sanction, which shall be based where applicable upon an enforcement response guide and fine matrix adopted separately by administrative regulation.

(7)

a.

If the respondent accepts the findings of County Investigative Officer, as provided in subsection (6)d., above, the respondent may, where permitted under the enforcement response guide and fine matrix for reference, provide to the County Investigative Officer a written acceptance and signed settlement agreement. Once signed by the investigator and respondent, the settlement agreement will be sent to the Special Master for review and ratification unless the investigator is authorized to finalize settlement under the guidelines stated in the enforcement response guide and fine matrix.

b.

If the respondent does not accept the findings of the County Investigative Officer or settlement is not applicable, the provisions of subsection (b) below shall apply.

c.

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in settling or attempting to settle a matter is not admissible to prove liability for or invalidity of the claim. Evidence of conduct or statements made in settlement negotiations is likewise not admissible.

(b)

Determination of probable cause/preliminary hearing.

(1)

Preliminary hearing/process. Upon determination of jurisdiction by the county investigative officer, if the matter does not settle and, where applicable, the matter shall be referred to a special master retained by the county for the purpose of conducting a preliminary hearing to determine probable cause. At the preliminary hearing, the respondent and the county investigative officer shall each be permitted to make brief statements, in the nature of oral argument, before a probable cause determination is made by the special master. The special master's probable cause determination shall be based upon:

a.

The complaint;

b.

The investigator's preliminary report, including the investigator's recommendation as to probable cause and recommendation as to fine or other sanction;

c.

Any written statements submitted by the respondent; and

d.

Any oral statements made by the county investigative officer and/or the respondent at the preliminary hearing.

(2)

Settlement agreement. The special master may, after review, ratify any proposed settlement agreement provided in this matter if such is presented by the respondent and county investigative officer. If the special master disagrees with the proposed settlement agreement, the special master shall inform the respondent and county investigative officer in writing of the reason(s) for the special master's refusal to ratify and may provide an alternative agreement. If the respondent does not accept the special master's alternative agreement, a hearing will be held before the special master as if there had been no settlement agreement presented.

(3)

[Evidence.] Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in settling or attempting to settle a matter is not admissible to prove liability for or invalidity of the claim. Evidence of conduct or statements made in settlement negotiations is likewise not admissible.

(4)

Hearing/findings. At the conclusion of the preliminary hearing, the special master may continue its determination to allow further investigation by either party; may order the issuance of a report of its investigation if it finds no probable cause to believe that there has been a violation of this article (thus 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 article; or may take such other action as it deems necessary to resolve the complaint, consistent with due process of law. In making its determination regarding a determination of probable cause the special master may consider:

a.

The sufficiency of the evidence against the respondent, as contained in the investigator's report;

b.

The admissions and other stipulations of the respondent, if any;

c.

The nature and circumstances of the respondent's actions;

d.

The expense of further proceedings; and

e.

Such other factors as it deems material to its decision.

(5)

a.

If probable cause is found, the special master shall determine in writing what charges are at issue, shall notify the complainant and the respondent in writing of the finding of probable cause (with a copy to the county investigative officer), and shall include in the written finding the special master's recommended action, including a recommended penalty. The matter shall then be referred to a hearing officer for a final determination.

b.

If the respondent accepts the findings of the special master, including the determination of probable cause and the recommended penalty, the respondent may provide to the special master a written acceptance and signed settlement agreement. Once signed by respondent and special master, the settlement agreement will be sent to the hearing officer for review and ratification.

c.

If no probable cause is found, the special master shall dismiss the case. A finding of no probable cause by the special master is a full and final adjudication of all such matters and the county investigative officer may not investigate a respondent in any subsequent complaint alleging violations based upon the same action, nonaction, or circumstance.

(c)

Final determination.

(1)

If the special master finds probable cause, and no settlement has occurred, the matter shall be referred to a hearing officer for a final hearing and issuance of a final administrative order in this matter. The hearing officer's findings shall be based upon:

a.

The complaint;

b.

The investigator's preliminary report, including the investigator's recommendation as to probable cause and recommendation as to fine or other sanction;

c.

Any written statements submitted by the respondent; and

d.

Any oral statements made by the county investigative officer and/or the respondent in this matter.

(2)

The final administrative order shall state findings of fact, based on evidence of record, and conclusions of law, and shall impose the appropriate relief or penalty consistent with the powers granted by this article.

(d)

Exemptions from public records law and public meetings laws. As authorized by Chapter 2010-130, Laws of Florida, the following exemptions from the Florida's public records and public meetings law shall apply:

(1)

A complaint and records relating to a complaint which is filed pursuant to this rticle, or any preliminary investigation made of such complaint, shall be confidential and exempt from the provisions of F.S. § 119.07(1), § 24(a), Article I of the Florida State Constitution, and F.S. § 120.525.

(2)

Any proceeding conducted pursuant to an investigatory process, and in accordance with a complaint or preliminary investigation under this article, is exempt from the provisions of F.S. § 286,011, and § 24(b), Article I of the State Constitution, and F.S. § 120.525.

(3)

The aforementioned exemptions apply until such time as said complaint is dismissed as legally insufficient, until the alleged violator requests in writing that such record and proceedings be made public, or until the special master determines, based on the process described herein, whether probable cause exists to believe a violation has occurred. In no event shall a complaint under this article against a candidate in any general, special, or primary election be filed, or any intention of filing such a complaint, be disclosed on the day of such election or within the five (5) days immediately preceding the date of the election. (Chapter 2010-130, Laws of Florida)

(4)

For purposes of applying this exemption, in the event of a conflict between this article and applicable state law provisions, the state law provisions shall prevail.

(e)

Investigation and penalty provisions. The investigatory and penalty provisions of this article shall take effect upon the county ethics officer notifying the BCC that the ethics investigator(s), special magistrate(s), and hearing officer(s), hired by the county, have completed training, consisting of a comprehensive ethics and procedure course, as coordinated by the county legal department.

(f)

Time Limitations.

(1)

All sworn complaints alleging a violation of this article shall be filed within five (5) years of the alleged violation for those individuals currently or formerly employed by, or holding elected office with, the county, providing the violation occurred after the effective date of this article or an applicable amendment.

(2)

A violation of this article is committed when every element has occurred or if the violation involves a continuing course of conduct at the time when the course of conduct of the alleged violator is terminated. Time starts to run on the day the violation is committed.

(3)

If it can be concluded, from the face of the complaint, that the applicable period of limitation has run, the complaint shall be dismissed. [F.S. § 112.3231]

(4)

The applicable period of limitation under the ordinance is tolled on the day a sworn complaint against the alleged violator is filed, or if the same or similar complaint is filed with the State Commission on Ethics, the period of limitation shall be tolled until the separate complaint is resolved or dismissed by the state.

(Ord. No. 2008-15 , § 2, 7-8-08; Ord. No. 2010-08 , § 5, 6-29-10; Ord. No. 2011-09 , § 4, 6-28-11)