Florida HB 537 - Final Sections 41-50

Section 41. Paragraph (c) of subsection (1) of section 106.021, Florida Statutes, is amended to read:
106.021 Campaign treasurers; deputies; primary and secondary depositories.--

(1)

(c) Any campaign treasurer or deputy treasurer appointed pursuant to this section shall, before such appointment may become effective, have accepted appointment to such position in writing and filed such acceptance with the officer before whom the candidate is required to qualify or with the officer with whom the political committee is required to file reports. An individual may be appointed and serve as campaign treasurer of a candidate and a political committee or two or more candidates and political committees. A candidate may appoint herself or himself as campaign treasurer.

Section 42. Subsection (1) of section 106.04, Florida Statutes, is amended to read:
106.04 Committees of continuous existence.--

(1) In order to qualify as a committee of continuous existence for the purposes of this chapter, a group, organization, association, or other such entity which is involved in making contributions to candidates, political committees, or political parties, shall meet the following criteria:

(a) It shall be organized and operated in accordance with a written charter or set of bylaws which contains procedures for the election of officers and directors and which clearly defines membership in the organization; and

(b) At least 25 percent of the income of such organization, excluding interest, must be derived from dues or assessments payable on a regular basis by its membership pursuant to provisions contained in the charter or bylaws. Dues may be collected by a group, organization, association, or other such entity from its members and forwarded to the committee of continuous existence. The committee of continuous existence shall report such dues as if it had received the dues directly from its members, in the manner prescribed in subsection (4).

Section 43. Section 106.055, Florida Statutes, is amended to read:
106.055 Valuation of in-kind contributions.--

Any person who makes an in-kind contribution shall, at the time of making such contribution, place a value on such contribution, which valuation shall be the fair market value of such contribution. Travel conveyed upon private aircraft shall be valued at the actual cost of per person commercial air travel for the same or a substantially similar route.

Section 44. Subsection (10) is added to section 106.08, Florida Statutes, to read:
106.08 Contributions; limitations on.--

(10) Contributions to a political committee or committee of continuous existence may be received by an affiliated organization and transferred to the bank account of the political committee or committee of continuous existence via check written from the affiliated organization if such contributions are specifically identified as intended to be contributed to the political committee or committee of continuous existence. All contributions received in this manner shall be reported pursuant to s. 106.07 by the political committee or committee of continuous existence as having been made by the original contributor.

Section 45. Section 106.09, Florida Statutes, is amended to read:
106.09 Cash contributions and contribution by cashier's checks.--

(1) A person may not make or accept a cash contribution or contribution by means of a cashier's check in excess of $50.

(2)

(a) Any person who makes or accepts a contribution in excess of $50 $100 in violation of this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) Any person who knowingly and willfully makes or accepts a contribution in excess of $5,000 in violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Section 46. Subsection (1) of section 106.143, Florida Statutes, is amended to read: 106.143 Political advertisements circulated prior to election; requirements.--

(1)

(a) Any political advertisement that is paid for by a candidate and that is published, displayed, or circulated prior to, or on the day of, any election must prominently state: "Political advertisement paid for and approved by ...name of candidate)..., ...party affiliation)..., for ...(office sought)...."

(b) Any other political advertisement published, displayed, or circulated prior to, or on the day of, any election must prominently:

1. Be marked "paid political advertisement" or with the abbreviation "pd. pol. adv."

2. State the name and address of the persons sponsoring the advertisement.

3.a.

(I) State whether the advertisement and the cost of production is paid for or provided in kind by or at the expense of the entity publishing, displaying, broadcasting, or circulating the political advertisement; or

(II) State who provided or paid for the advertisement and cost of production, if different from the source of sponsorship.

b. This subparagraph does not apply if the source of the sponsorship is patently clear from the content or format of the political advertisement.

(c) Any political advertisement made pursuant to s. 106.021(3)(d) must be marked "paid political advertisement" or with the abbreviation "pd. pol. adv." and must prominently state, "Paid for and sponsored by ...(name of person paying for political advertisement). Approved by ...(names of persons, party affiliation, and offices sought in the political advertisement)."...

This subsection does not apply to campaign messages used by a candidate and the candidate's supporters if those messages are designed to be worn by a person.

Section 47. Section 106.17, Florida Statutes, is amended to read:
106.17 Polls and surveys relating to candidacies.--

Any candidate, political committee, committee of continuous existence, electioneering communication organization, or state or county executive committee of a political party may authorize or conduct a political poll, survey, index, or measurement of any kind relating to candidacy for public office so long as the candidate, political committee, committee of continuous existence, electioneering communication organization, or political party maintains complete jurisdiction over the poll in all its aspects.

Section 48. Section 106.25, Florida Statutes, is amended to read:
106.25 Reports of alleged violations to Florida Elections Commission; disposition of findings.--

(1) Jurisdiction to investigate and determine violations of this chapter and chapter 104 is vested in the Florida Elections Commission; however, nothing in this section limits the jurisdiction of any other officers or agencies of government empowered by law to investigate, act upon, or dispose of alleged violations of this code.

(2) The commission shall investigate all violations of this chapter and chapter 104, but only after having received either a sworn complaint or information reported to it under this subsection by the Division of Elections. Such sworn complaint must be based upon personal information or information other than hearsay. Any person, other than the division, having information of any violation of this chapter or chapter 104 shall file a sworn complaint with the commission. The commission shall investigate only those alleged violations specifically contained within the sworn complaint. If any complainant fails to allege all violations that arise from the facts or allegations alleged in a complaint, the commission shall be barred from investigating a subsequent complaint from such complainant that is based upon such facts or allegations that were raised or could have been raised in the first complaint. If the complaint includes allegations of violations relating to expense items reimbursed by a candidate, committee, or organization to the campaign account before a sworn complaint is filed, the commission shall be barred from investigating such allegations. Such sworn complaint shall state whether a complaint of the same violation has been made to any state attorney. Within 5 days after receipt of a sworn complaint, the commission shall transmit a copy of the complaint to the alleged violator. If the executive director finds that the complaint is legally sufficient, the respondent shall be notified of such finding by letter, which sets forth the statutory provisions alleged to have been violated and the alleged factual basis that supports the finding. All sworn complaints alleging violations of the Florida Election Code over which the commission has jurisdiction shall be filed with the commission within 2 years after the alleged violations. The period of limitations is tolled on the day a sworn complaint is filed with the commission. The complainant may withdraw the sworn complaint at any time prior to a probable cause hearing if good cause is shown. Withdrawal shall be requested in writing, signed by the complainant, and witnessed by a notary public, stating the facts and circumstances constituting good cause. The executive director shall prepare a written recommendation regarding disposition of the request which shall be given to the commission together with the request. "Good cause" shall be determined based upon the legal sufficiency or insufficiency of the complaint to allege a violation and the reasons given by the complainant for wishing to withdraw the complaint. If withdrawal is permitted, the commission must close the investigation and the case. No further action may be taken. The complaint will become a public record at the time of withdrawal.

(3) For the purposes of commission jurisdiction, a violation shall mean the willful performance of an act prohibited by this chapter or chapter 104 or the willful failure to perform an act required by this chapter or chapter 104. Willfulness is a determination of fact; however, at the request of the respondent, willfulness may be considered and determined in an informal hearing before the commission.

(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:

The sufficiency of the evidence against the respondent, as contained in the investigator's report;
The admissions and other stipulations of the respondent, if any;
The nature and circumstances of the respondent's actions;
The expense of further proceedings; and
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)

Upon a commission finding of probable cause, the counsel for the commission shall attempt to reach a consent agreement with the respondent.
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.
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.

(5) Unless a person alleged by the Elections Commission to have committed a violation of this chapter or chapter 104 elects, within 30 days after the date of the filing of the commission's allegations, to have a formal or informal hearing conducted before the commission, or elects to resolve the complaint by consent order, such person shall be entitled to a formal administrative hearing conducted by an administrative law judge in the Division of Administrative Hearings. The administrative law judge in such proceedings shall enter a final order subject to appeal as provided in s. 120.68.

(6) It is the duty of a state attorney receiving a complaint referred by the commission to investigate the complaint promptly and thoroughly; to undertake such criminal or civil actions as are justified by law; and to report to the commission the results of such investigation, the action taken, and the disposition thereof. The failure or refusal of a state attorney to prosecute or to initiate action upon a complaint or a referral by the commission shall not bar further action by the commission under this chapter.

(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) and 286.011, and is exempt from publication in the Florida Administrative Weekly 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.

(8) Any person who files a complaint pursuant to this section while knowing that the allegations contained in such complaint are false or without merit commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(9) The commission shall maintain a database of all final orders and agency actions. Such database shall be available to the public and shall be maintained in such a manner as to be searchable, at a minimum, by issue, statutes, individuals, or entities referenced.

Section 49. Subsection (4) of section 106.35, Florida Statutes, is amended to read:
106.35 Distribution of funds.--

(4) Distribution of funds shall be made beginning on the 32nd day prior to the primary and every 7 days thereafter.

Section 50. Section 112.51, Florida Statutes, is amended to read:
112.51 Municipal officers; suspension; removal from office.--

(1) By executive order stating the grounds for the suspension and filed with the Secretary of State, the Governor may suspend from office any elected or appointed municipal official for malfeasance, misfeasance, neglect of duty, habitual drunkenness, incompetence, or permanent inability to perform official duties.

(2) Whenever any elected or appointed municipal official is arrested for a felony or for a misdemeanor related to the duties of office or is indicted or informed against for the commission of a federal felony or misdemeanor or state felony or misdemeanor, the Governor has the power to suspend such municipal official from office.

(3) The suspension of such official by the Governor creates a temporary vacancy in such office during the suspension. Any temporary vacancy in office created by suspension of an official under the provisions of this section shall be filled by a temporary appointment to such office for the period of the suspension. Such temporary appointment shall be made in the same manner and by the same authority by which a permanent vacancy in such office is filled as provided by law. If no provision for filling a permanent vacancy in such office is provided by law, the temporary appointment shall be made by the Governor.

(4) No municipal official who has been suspended from office under this section may perform any official act, duty, or function during his or her suspension; receive any pay or allowance during his or her suspension; or be entitled to any of the emoluments or privileges of his or her office during suspension.

(5) If the municipal official is convicted of any of the charges contained in the indictment or information by reason of which he or she was suspended under the provisions of this section, the Governor shall remove such municipal official from office. If a person was selected to fill the temporary vacancy pursuant to subsection (3), that person shall serve the remaining balance, if any, of the removed official's term of office. Otherwise, any vacancy created by the removal shall be filled as provided by law. For the purposes of this section, any person who pleads guilty or nolo contendere or who is found guilty shall be deemed to have been convicted, notwithstanding a suspension of sentence or a withholding of adjudication.

(6) If the municipal official is acquitted or found not guilty or is otherwise cleared of the charges which were the basis of the arrest, indictment, or information by reason of which he or she was suspended under the provisions of this section, then the Governor shall forthwith revoke the suspension and restore such municipal official to office; and the official shall be entitled to and be paid full back pay and such other emoluments or allowances to which he or she would have been entitled for the full period of time of the suspension. If, during the suspension, the term of office of the municipal official expires and a successor is either appointed or elected, such back pay, emoluments, or allowances shall only be paid for the duration of the term of office during which the municipal official was suspended under the provisions of this section, and he or she shall not be reinstated.