Fla. Admin. Code Ann. R. 11B-27.004 - Probable Cause Determination
At the conclusion of the preliminary investigation and when the reports and documents are received as directed by sections 943.139 and 943.1395, F.S., a determination of probable cause shall be made before the Commission initiates proceedings to take disciplinary action against the certification of an officer.
(1) For the purpose of probable cause
determinations, the chairperson of the Commission or designee shall appoint
Probable Cause Panels of three Commission members and one alternate member, to
hold Probable Cause Determination Hearings for terms specified in their
appointment. The Commission Chairperson or designee shall appoint a chairperson
for each panel, and the panels shall meet as necessary.
(2) A Probable Cause Determination Hearing is
the conclusion of the preliminary investigation, and is not a hearing pursuant
to sections 120.569 and
120.57, F.S.
(3) Each Probable Cause Determination Hearing
shall be noticed in the Florida Administrative Register pursuant to section
120.525, F.S. The respondent
shall be mailed a prior notice of the Probable Cause Determination Hearing and
a subsequent notification of whether or not probable cause was determined by
the panel.
(4) After considering
all evidence, a majority vote of the Probable Cause Panel shall determine
whether or not probable cause exists to file an administrative complaint
pursuant to section 120.60(5),
F.S., charging a violation of chapter 943, F.S., or rule chapter 11B-27, F.A.C.
If the case is presented for imposition of a penalty, the Panel is authorized
to make a penalty recommendation to the Commission, or to direct Commission
staff to offer a settlement agreement in the case.
(5) The panel is authorized to issue a Letter
of Guidance to the officer when the panel determines that it is not practical
to initiate proceedings against an officer's certification. A copy of the
Letter of Guidance shall be retained in the officer's file within the Criminal
Justice Professionalism Program, Bureau of Standards.
(6) The Probable Cause Panel is authorized to
offer the respondent the opportunity to enter into an Intervention Program if
there would otherwise be a finding of probable cause but the Panel finds that
there are significant mitigating circumstances or that the violation is not
egregious. The terms and conditions of the Probable Cause Panel's Intervention
Programs may include the following:
(a)
Successful completion of training or retraining deemed appropriate by the
panel.
(b) Participation in
psychological, occupational, or substance abuse counseling.
(c) Furnishing blood, breath, or urine
samples, and consent to the release of analysis results of such random or
scheduled tests.
(d) Payment of
restitution for damages or loss created by the officer's misconduct.
(e) Any other such rehabilitative terms and
conditions.
(f) As a standard
condition of the Intervention Program, the respondent shall refrain from any
violation of sections
943.13(4), (7),
F.S., and subsections
11B-27.0011(2)
-(4), F.A.C. For the Intervention Program to be a viable alternative in
consideration of probable cause, the respondent shall agree to all terms and
conditions recommended by the panel. The respondent shall be responsible for
successfully completing the terms and conditions of the Intervention Program
within a specified period. Once the respondent has reported the successful
completion of the terms and conditions to Commission staff, the matter shall be
presented to a Probable Cause Panel. The panel shall then issue a Letter of
Guidance in lieu of a finding of probable cause, pursuant with subsection (5)
of this rule section. Failure of the respondent to either agree to or
successfully complete the terms and conditions of the Intervention Program
within the specified time frame, shall result in the matter being returned to
the Probable Cause Panel for a finding of probable cause and the issuance of an
Administrative Complaint.
(7) When Commission staff determines that the
respondent has been retained by the employing agency, Commission staff shall
issue a Letter of Acknowledgment of agency action in these cases, provided the
employing agency shall have taken significant agency action as defined in
subsections 11B-27.005(1)
-(2), F.A.C.
(8) Commission staff:
(a) Shall not issue a Letter of
Acknowledgement to a respondent who has been issued a Letter of Acknowledgement
within three years prior to the date of receipt of the information described in
paragraph 11B-27.003(2)(b),
F.A.C.
(b) Shall not issue a Letter
of Acknowledgement to a respondent who has been issued a Letter of Guidance
within five years prior to the date of receipt of the information described in
paragraph 11B-27.003(2)(b),
F.A.C.
(c) Shall not issue a Letter
of Acknowledgement to a respondent who has been disciplined by the Commission
within eight years prior to the date of receipt of the information described in
paragraph 11B-27.003(2)(b),
F.A.C.
(d) Shall not issue a Letter
of Achnowledgement to a respondent if the penalty guidelines of subsection
11B-27.005(5),
F.A.C., specify prospective suspension to revocation as the guideline penalty
for the offense.
(9) In
cases where the respondent has been terminated or disciplined and is seeking
review of that termination or discipline through the administrative or judicial
process, the respondent and employing agency shall notify Commission staff of
such review. Pending final resolution, Commission staff shall hold such cases
in abeyance.
(10)
(a) If administrative or judicial review
results in a final disposition of the respondent's termination or discipline,
the case shall no longer be held in abeyance and Commission staff shall review
the case for the issuance of a Letter of Acknowledgment, if applicable, or for
presentation to the Commission for Commission action.
(b) In cases in which administrative or
judicial review results in a final reversal of discipline imposed by the
employing agency relating to the alleged misconduct that is subject to review
by the Commission, or criminal proceedings that result in the respondent's
acquittal on all charges subject to review by the Commission after a trial,
Commission staff shall take no further action, provided that Commission staff
may present the case to a Probable Cause Panel upon Commission staff's specific
showing that the findings of fact in the collateral proceedings were based upon
inclusion or exclusion of evidence, or that the testimony was a departure from
the essential requirements of law, the findings of fact in the collateral
proceedings were not supported by competent and substantial evidence, or were
clearly contrary to the evidence presented.
(11)
(a) In
cases in which the facts presented to Commission staff are inconclusive, lack
reliability, are insufficient to permit a reasonable determination of what
occurred, or fail to demonstrate that the alleged misconduct meets the
statutory criteria for Commission action, Commission staff shall "no cause" the
case. Commission staff shall reopen a case that has been "no caused" if new
evidence or witnesses become available to Commission staff. However, Commission
staff shall "no cause" a violation of paragraph
11B-27.0011(4)(b) or
(c), F.A.C., if the officer is alleged to
have committed the violation more than eight years prior to the case being
presented to a Probable Cause Determination Hearing.
(b) Commision staff's characterization of
misconduct based upon the facts as presented shall control processing of
misconduct cases under the rules of the Commission.
(12) When the Probable Cause Panel has
insufficient information to determine the existence of probable cause, but in
good faith believes that Commission staff can obtain the information necessary
to reach a decision, the panel shall enter a finding of "Insufficient
Information." The case shall be continued until reasonable efforts by
Commission staff have been concluded to obtain the additional information
requested by the panel, at which time the case shall be scheduled before a
Probable Cause Panel for further review.
Notes
Rulemaking Authority 943.03(4), 943.12(1), 943.1395 FS. Law Implemented 943.1395 FS.
New 12-13-92, Amended 1-19-94, 11-5-95, 1-2-97, 7-7-99, 8-22-00, 11-5-02, 4-11-04, 11-30-04, 6-9-08, 6-3-10, 5-29-14, 9-4-16, 7-9-19.
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