CEO 75-107 -- May 12, 1975

DISPOSITION OF COMPLAINTS

INVESTIGATORY POWER OF ETHICS COMMISSION WHEN ACTION HAS NOT BEEN INITIATED BY APPROPRIATE DISCIPLINARY BODY WITHIN 30-DAY PERIOD

To: Murray W. Wadsworth, Tallahassee

Prepared by: Bonnie Johnson

SUMMARY:

Where a complaint of violation of the Code of Ethics was forwarded to the Governor but returned to the Ethics Commission without having been investigated, it is the duty of the commission, pursuant to s. 112.324(2)(a), F. S. (1974 Supp.), to conduct its own investigation and recommend appropriate action. The Governor's review of the complaint in relation to his constitutional powers of suspension does not constitute initiation of action on the complaint. Reference is made to Attorney General Opinion 075-25 in which it is ruled that only the Ethics Commission can determine the sufficiency of action taken on a complaint filed with the commission.

QUESTION:

Pursuant to s. 112.324, F. S. (1974 Supp.), and in relation to measures taken by the office of the Governor in response to the Ethics Commission's having forwarded for action to that office a complaint filed with the commission by Mr. Ronald Gradsky against my client, Mr. David L. Reid, has the matter not been disposed of by the Governor's office, thus precluding any further action by the Ethics Commission?

Your question is answered in the negative.

Mr. Ronald Gradsky's complaint against your client, Mr. Reid, was sworn and subscribed to on January 17, 1975 and was received in the office of the Ethics Commission on January 20, 1975. In this complaint Mr. Gradsky alleges violations by Mr. Reid of s. 112.313(4) and (5) of part III, Ch. 112, F. S. (1974 Supp.), commonly known as the Code of Ethics for Public Officers and Employees. Pursuant to s. 112.324(1)(c), supra, the complaint was forwarded by letter dated January 21, 1975, from Lawrence A. Gonzalez, Executive Director of the Commission on Ethics, to the Governor and Cabinet.

By letter dated March 5, 1975, Mr. Arthur C. Canaday, General Counsel to the Governor, advised Mr. Gonzalez that the complaint was being returned to the Ethics Commission "for any action in accordance with Florida Statutes 112.324(2)(a)," which provision is as follows:

If, after thirty (30) days, the responsible body, person, or board has not initiated action on the complaint, it shall be the duty of the commission on ethics to conduct its own investigation and recommend appropriate action to the proper disciplinary body of the senate, the house of representatives, the governor and cabinet, the head of the appropriate agency, or the official or board responsible for hiring the employee, whichever is applicable. If the commission finds probable cause that a violation of law has occurred, it may report the same to the appropriate law enforcement authorities.

Pursuant to this duty to investigate a complaint upon which no action was taken during the 30-day period, the commission voted at its March 27, 1975, meeting to proceed with a formal investigation.

As explained by Mr. Canaday in the March 5 letter, the Governor's office had reviewed the complaint and had determined that "the facts as alleged in the complaint, even if proven true, would not constitute grounds for suspension under Article 4, Section 7 [of the Florida Constitution]. In accordance with our policy letter of February 28, 1975, we have determined that action by the Governor would not be appropriate."

In the policy letter to which Mr. Canaday refers, it is explained that the Governor's power to suspend public officials is limited to grounds stated in s. 7, Art. IV, of the State Constitution. Inasmuch as a statute cannot expand constitutionally limited power, the policy of the Governor in relation to complaints received from the commission, Mr. Canaday further explains, will be to review each complaint in light of the Governor's suspension power, proceeding with a personal investigation only of those complaints which, if the charges were proven true, would constitute grounds for suspension. Mr. Canaday further advises that "[i]f our review reveals that the charges would not constitute grounds within the scope of Article 4, Section 7, this office will advise you by letter in accordance with Florida Statute 112.324."

In your proposed order of April 21, 1975, you assert that, in reviewing the complaint and returning it to the commission, action was initiated by the Governor and the requirements of s. 112.324, F. S., therefore were fulfilled. However, in both the February 28 and March 5 letters from Mr. Canaday, reference is made to s. 112.324, F. S., subsection (2)(a) of which stipulates that it is the duty of the commission to conduct an investigation and recommend appropriate action in the absence of action on the part of the responsible person or agency. In other words, the March 5 letter clearly acknowledges by specific reference to s. 112.324(2)(a) that the complaint is being returned to the Ethics Commission for disposition. No action was initiated by the Governor; no investigation took place. Rather, the facts alleged in the complaint merely were reviewed to determine sufficiency in relation to s. 7, Art. IV, supra, and the determination was made to return the complaint to the Commission on Ethics for such action as it deemed appropriate.

Mr. Canaday confirmed this view in a letter dated April 17, 1975, written in response to a request by the commission staff that he clarify the intent of the Governor's office in returning the complaint to the commission. Mr. Canaday writes in this letter:

In Attorney General Opinion 75-25 . . . the Attorney General said that the Ethics Commission had a fiduciary responsibility to the citizens of Florida to actively guard and defend the standards of conduct of officials and employees in government. He also made it very clear that without the power to make the final determination as to when there has been a sufficient initiation of action under the law, the Commission would be unable to fulfill this statutory obligation.

It was with this in mind that we specifically provided that our letter was submitted "for any action in accordance with Florida Statute 112.312(2)(a)."

Our lack of action was not meant to preclude you from making an independent investigation of this case . . . .

By Mr. Canaday's own admission, no action was initiated on the complaint by the Governor.

It should also be noted that, in returning the complaint to the Ethics Commission, the Governor did not altogether relinquish disciplinary power. Should a violation subsequently be found by the commission, the Governor would be the "proper disciplinary body" to whom the commission would recommend disciplinary action pursuant to s. 112.324(2)(a), and s. 112.324(2)(b) provides that the Governor, upon recommendation from the Ethics Commission, "take prompt action not inconsistent with this part . . . ." In the February 28 policy letter, Mr. Canaday also points out the alternate penalty provisions:

. . . Florida Statute 112.324 specifically provides that "any violation of this part . . . shall be grounds for . . . reprimand or other penalty as provided by law." In those cases which would not constitute grounds for removal under Article 4, Section 7, and in cases involving employees under the control of this office, it will be the policy of this office to utilize this section to issue written and/or oral reprimands in the cases of those officers or employees whose conduct, in our opinion, would merit it.

You suggest in your proposed order that the Legislature intended to employ the term "action" in its broadest sense to mean "conduct, behavior, something done, the condition of acting, or an act or a series of acts." We must disagree. To accept so broad a definition of the term would, in practical effect, nullify all the provisions of s. 112.322, for any handling of a complaint by the body to which it was forwarded would constitute the initiation of "action." Although s. 112.324, F. S., clearly modifies the powers granted the commission in s. 112.322, we cannot believe that the legislative intent was that s. 112.324 should abrogate the commission powers established by s. 112.322. Were "action" accepted to mean behavior of any sort, however, that would be the practical result. We believe, rather, that the two sections of the law must be read in conjunction and given equal weight, with the commission exercising its investigative authority if and when the appropriate body has failed to do so within 30 days. The commission's statutory authority to investigate under these circumstances -- the authority you assert is not granted by the law -- is evidenced in a concurrent reading of ss. 112.322 and 112.324.

In further support of our position that the Ethics Commission responded appropriately in voting to proceed with an investigation, we call your attention to the opinion referred to in Mr. Canaday's April 17 letter, Attorney General Opinion 075-25, dated February 6, 1975, and addressed to our Chairman, Mr. Talbot D'Alemberte. In response to our question as to whether the Ethics Commission has the right, duty, power, or discretion to proceed with its own investigation of a complaint under provisions of s. 112.324(2)(a) when the commission feels that insufficient action was taken by the officer or agency to which it was referred, Attorney General Shevin replied in part:

Although s. 112.324 in effect preserves the existing authority and duty of particular officials to take disciplinary action by giving such officials the primary opportunity to investigate, it does not follow that the Commission is powerless to investigate, if, in its judgment, the appropriate disciplinary official has taken insufficient investigatory action. Indeed, it seems implicit in the wording of s. 112.324(2)(a), F. S., quoted above, that only the Commission on Ethics can make the determination whether the "responsible body, person, or board" has "initiated action on the complaint" because it is the determination of that event that creates the duty on the part of the Commission to "conduct its own investigation and recommend appropriate action."

In the instant case of the Gradsky v. Reid complaint, no claim was made by the Governor's office as to any investigation having taken place or any action having been initiated. As we stated earlier in this opinion, the facts were reviewed by the Governor and, on the basis of that review, the complaint was returned to the commission for disposition. Even if the Governor's office had investigated the situation, however, the commission would nevertheless have the authority, pursuant to s. 112.324(2)(a) and AGO 075-25, to deem the action taken insufficient and to proceed with its own investigation. To repeat the words of Attorney General Shevin, "only the Commission on Ethics" can make such a determination "because it is the determination of that event that creates the duty on the part of the Commission to 'conduct its own investigation and recommend appropriate action.' "

Section 112.322, F. S., implies that the primary duty of the commission is an investigatory one, for subsection (1) of that section, which delineates the powers and duties of the commission, provides:

It is the duty of the commission to receive and investigate complaints of violation of the code of ethics as established in this part.

The Code of Ethics further provides in s. 112.324 procedures which insure that all alleged violations of the code be fully and fairly investigated. The commission's power of review is essential to this insurance for only through such authority could the commission fulfill its role as the "guardian of the standards of conduct" of public officers and employees. We therefore conclude, pursuant to statutory provisions and interpretation by the Attorney General of these provisions, that the commission's proceeding with an investigation of the Gradsky v. Reid complaint, after such complaint had been returned by the Governor without any action having been initiated, is in conformance with both the spirit and the letter of the Code of Ethics.