112.31895 Investigative procedures in response to prohibited personnel actions.—
(1) COMPLAINT.—
(a) If a disclosure under s. 112.3187 includes or results in alleged retaliation by an employer, the employee or former employee of, or applicant for employment with, a state agency, as defined in s. 216.011, that is so affected may file a complaint alleging a prohibited personnel action, which complaint must be made by filing a written complaint with the Office of the Chief Inspector General in the Executive Office of the Governor or the Florida Commission on Human Relations, no later than 60 days after the prohibited personnel action.
(b) Within 5 working days after receiving a complaint under this section, the office or officer receiving the complaint shall acknowledge receipt of the complaint and provide copies of the complaint and any other preliminary information available concerning the disclosure of information under s. 112.3187 to each of the other parties named in paragraph (a), which parties shall each acknowledge receipt of such copies to the complainant.
(2) FACT FINDING.—The Florida Commission on Human Relations shall:
(a) Receive any allegation of a personnel action prohibited by s. 112.3187, including a proposed or potential action, and conduct informal fact finding regarding any allegation under this section, to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel action under s. 112.3187 has occurred, is occurring, or is to be taken.
(b) Within 180 days after receiving the complaint, provide the agency head and the complainant with a fact-finding report that may include recommendations to the parties or proposed resolution of the complaint. The fact-finding report shall be presumed admissible in any subsequent or related administrative or judicial review.
(3) CORRECTIVE ACTION AND TERMINATION OF INVESTIGATION.—
(a) The Florida Commission on Human Relations, in accordance with this act and for the sole purpose of this act, is empowered to:
1. Receive and investigate complaints from employees alleging retaliation by state agencies, as the term “state agency” is defined in s. 216.011.
2. Protect employees and applicants for employment with such agencies from prohibited personnel practices under s. 112.3187.
3. Petition for stays and petition for corrective actions, including, but not limited to, temporary reinstatement.
4. Recommend disciplinary proceedings pursuant to investigation and appropriate agency rules and procedures.
5. Coordinate with the Chief Inspector General in the Executive Office of the Governor and the Florida Commission on Human Relations to receive, review, and forward to appropriate agencies, legislative entities, or the Department of Law Enforcement disclosures of a violation of any law, rule, or regulation, or disclosures of gross mismanagement, malfeasance, misfeasance, nonfeasance, neglect of duty, or gross waste of public funds.
6. Review rules pertaining to personnel matters issued or proposed by the Department of Management Services, the Public Employees Relations Commission, and other agencies, and, if the Florida Commission on Human Relations finds that any rule or proposed rule, on its face or as implemented, requires the commission of a prohibited personnel practice, provide a written comment to the appropriate agency.
7. Investigate, request assistance from other governmental entities, and, if appropriate, bring actions concerning, allegations of retaliation by state agencies under subparagraph 1.
8. Administer oaths, examine witnesses, take statements, issue subpoenas, order the taking of depositions, order responses to written interrogatories, and make appropriate motions to limit discovery, pursuant to investigations under subparagraph 1.
9. Intervene or otherwise participate, as a matter of right, in any appeal or other proceeding arising under this section before the Public Employees Relations Commission or any other appropriate agency, except that the Florida Commission on Human Relations must comply with the rules of the commission or other agency and may not seek corrective action or intervene in an appeal or other proceeding without the consent of the person protected under ss. 112.3187-112.31895.
10. Conduct an investigation, in the absence of an allegation, to determine whether reasonable grounds exist to believe that a prohibited action or a pattern of prohibited action has occurred, is occurring, or is to be taken.
(b) Within 15 days after receiving a complaint that a person has been discharged from employment allegedly for disclosing protected information under s. 112.3187, the Florida Commission on Human Relations shall review the information and determine whether temporary reinstatement is appropriate under s. 112.3187(9)(f). If the Florida Commission on Human Relations so determines, it shall apply for an expedited order from the appropriate agency or circuit court for the immediate reinstatement of the employee who has been discharged subsequent to the disclosure made under s. 112.3187, pending the issuance of the final order on the complaint.
(c) The Florida Commission on Human Relations shall notify a complainant of the status of the investigation and any action taken at such times as the commission considers appropriate.
(d) If the Florida Commission on Human Relations is unable to conciliate a complaint within 35 days after providing the agency head and complainant with the fact-finding report, the Florida Commission on Human Relations shall terminate the investigation. Upon termination of any investigation, the Florida Commission on Human Relations shall notify the complainant and the agency head of the termination of the investigation, providing a summary of relevant facts found during the investigation and the reasons for terminating the investigation. A written statement under this paragraph is presumed admissible as evidence in any judicial or administrative proceeding but is not admissible without the consent of the complainant.
(e)1. The Florida Commission on Human Relations may request an agency or circuit court to order a stay, on such terms as the court requires, of any personnel action for 45 days if the Florida Commission on Human Relations determines that reasonable grounds exist to believe that a prohibited personnel action has occurred, is occurring, or is to be taken. The Florida Commission on Human Relations may request that such stay be extended for appropriate periods of time.
2. If, in connection with any investigation, the Florida Commission on Human Relations determines that reasonable grounds exist to believe that a prohibited action has occurred, is occurring, or is to be taken which requires corrective action, the Florida Commission on Human Relations shall report the determination together with any findings or recommendations to the agency head and may report that determination and those findings and recommendations to the Governor and the Chief Financial Officer. The Florida Commission on Human Relations may include in the report recommendations for corrective action to be taken.
3. If, after 35 days, the agency does not implement the recommended action, the Florida Commission on Human Relations shall terminate the investigation and notify the complainant of the right to appeal under subsection (4), or may petition the agency for corrective action under this subsection.
4. If the Florida Commission on Human Relations finds, in consultation with the individual subject to the prohibited action, that the agency has implemented the corrective action, the commission shall file such finding with the agency head, together with any written comments that the individual provides, and terminate the investigation.
(f) If the Florida Commission on Human Relations finds that there are no reasonable grounds to believe that a prohibited personnel action has occurred, is occurring, or is to be taken, the commission shall terminate the investigation.
(g)1. If, in connection with any investigation under this section, it is determined that reasonable grounds exist to believe that a criminal violation has occurred which has not been previously reported, the Florida Commission on Human Relations shall report this determination to the Department of Law Enforcement and to the state attorney having jurisdiction over the matter.
2. If an alleged criminal violation has been reported, the Florida Commission on Human Relations shall confer with the Department of Law Enforcement and the state attorney before proceeding with the investigation of the prohibited personnel action and may defer the investigation pending completion of the criminal investigation and proceedings. The Florida Commission on Human Relations shall inform the complainant of the decision to defer the investigation and, if appropriate, of the confidentiality of the investigation.
(h) If, in connection with any investigation under this section, the Florida Commission on Human Relations determines that reasonable grounds exist to believe that a violation of a law, rule, or regulation has occurred, other than a criminal violation or a prohibited action under this section, the commission may report such violation to the head of the agency involved. Within 30 days after the agency receives the report, the agency head shall provide to the commission a certification that states that the head of the agency has personally reviewed the report and indicates what action has been or is to be taken and when the action will be completed.
(i) During any investigation under this section, disciplinary action may not be taken against any employee of a state agency, as the term “state agency” is defined in s. 216.011, for reporting an alleged prohibited personnel action that is under investigation, or for reporting any related activity, or against any employee for participating in an investigation without notifying the Florida Commission on Human Relations.
(j) The Florida Commission on Human Relations may also petition for an award of reasonable attorney’s fees and expenses from a state agency, as the term “state agency” is defined in s. 216.011, pursuant to s. 112.3187(9).
(4) RIGHT TO APPEAL.—
(a) Not more than 21 days after receipt of a notice of termination of the investigation from the Florida Commission on Human Relations, the complainant may file, with the Public Employees Relations Commission, a complaint against the employer-agency regarding the alleged prohibited personnel action. The Public Employees Relations Commission shall have jurisdiction over such complaints under ss. 112.3187 and 447.503(4) and (5).
(b) Judicial review of any final order of the commission shall be as provided in s. 120.68.
...Wainwright, 422 So.2d 1027, 1028 (Fla. 1st DCA 1982). The Whistle-blower’s Act provides a statutory cause of action for employees of state agencies, among others, who face adverse personnel action as a result of certain protected activities. §§ 112.3187(8)(a); 112.31895(4)(a). Employees of state agencies may seek the relief provided under the Act through either circuit court or the Public Employees Relations Commission (PERC). §§ 112.3187(8)(a); 112.31895(4)(a). However, the Act provides certain prerequisites to the filing of an action in either circuit court or with PERC. §§ 112.3187; 112.31895....
...To initiate an action under the Whistle-blower’s Act, a state agency employee must file an administrative complaint with either FCHR or the Office of the Governor within sixty days of the action that is the subject of the complaint. §§ 112.3187(8)(a), 112.31895(l)(a). When a complaint alleging a violation of the Whistle-blower’s Act is timely filed with FCHR, FCHR is required to investigate the complaint and, within ninety days, issue a fact-finding report. § 112.31895(2)(c). If FCHR is unable to conciliate the complaint within sixty days of the issuance of the fact-finding report, it is required to terminate its investigation and notify the complainant and the agency head that the investigation has been terminated. § 112.31895(3)(d). Once a complainant receives a notice of termination of investigation, he or she may elect either to file a complaint with PERC within sixty days or to file a civil action within 180 days. §§ 112.3187, 112.31895(4)(a). If FCHR issues a final order, rather than a notice of termination of investigation, the final order is subject to judicial review under section 120.68, Florida Statutes, as provided in section 112.31895(4)(b)....
...Career Sen. Comm’n, 478 So.2d 1111, 1112 (Fla. 1st DCA 1985). Here, the relevant statute requires the agency to review and investigate complaints that are filed within sixty days of personnel action that is prohibited under the Whistle-blower’s Act. § 112.31895(l)(a). Dismissal of a complaint FCHR believes to be untimely is a power necessarily incident to the power to review timely complaints. Moreover, section 112.31895(4)(b) reveals that the Legislature contemplated the entry of final orders by FCHR under the authority granted in the Whistle-blower’s Act....
Cited 8 times | Published | Florida 1st District Court of Appeal | 2003 WL 1831139
...is to her position of employment with DOT pursuant to section 112.3187(9)(f), Florida Statutes (2002). The Department argues that the Florida Commission on Human Relations (FCHR) failed to follow the statutory notice requirements of section 112.3187-112.31895, Florida Statutes, the "Whistle-blowers Act." DOT also argues 1) the trial court erred in granting temporary relief where no actual discharge took place, and 2) the trial court erred in not allowing DOT to present evidence concerning whether a discharge took place....
...cies from taking adverse action against employees who make protected disclosures to appropriate authorities. Section 112.3187(4), Florida Statutes. It also empowers FCHR to investigate complaints and request temporary reinstatement when appropriate. Section 112.31895, Florida Statutes....
...t position, pending the final outcome on the complaint, if an employee complains of being discharged in retaliation for a protected disclosure and if a court of competent jurisdiction or the Florida Commission on Human Relations, as applicable under s. 112.31895, determines that the disclosure was not made in bad faith or for a wrongful purpose or occurred after an agency's initiation of a personnel action against the employee which includes documentation of the employee's violation of a disciplinary standard or performance deficiency....
...of the circuit court. See Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983). Any proceedings on the underlying whistle-blower's complaint will be separate and distinct from the reinstatement case and will be conducted in the manner provided by section 112.31895(3) and (4), Florida Statutes....
...We next address the Department's argument that Ms. Georgalis was not entitled to temporary relief because FCHR failed to follow the statutory time periods. It is undisputed that FCHR did not notify DOT of the filing of the complaint within three working days as required by section 112.31895(1)(b), Florida Statutes, nor is it disputed that FCHR failed to file the request for reinstatement with the circuit court within 15 days of filing the complaint as required by section 112.31895(3)(b), *256 Florida Statutes....
...Appellant, Ranell Tillery, Jr., seeks review of the final order of the Florida Commission on Human Relations (Commission) dismissing his complaint against Appellee, the Florida Department of Juvenile Justice (DJJ), under the Whistle-blower’s Act, sections 112.3187 through 112.31895, Florida Statutes (2011) (the Act)....
...osure.” The notification informed Appellant that he had the right to seek judicial review of the decision in the appropriate district court of appeal within 30 days. The Commission is charged with implementing the protections contained in the Act. § 112.31895(3)(a), Fla....
...The “Remedies” portion of the Act states that, “[a]ny employee ... with any state agency ... who is discharged ... or denied employment, because he or she engaged in an activity protected by this section may file a complaint, which complaint must be made in *1255 accordance with § 112.31895.” § 112.3187(8)(a), Fla....
...a state agency ... may file a complaint alleging prohibited personnel action, which complaint must be made by filing a written complaint with ... the Florida Commission on Human Relations, no later than 60 days after the prohibited personnel action. § 112.31895(l)(a), Fla....
...he other parties named in the complaint, conduct informal fact-finding regarding the allegation, and, within 90 days, provide the agency head and complainant with a fact finding report that may include recommendations for resolution of the conflict. § 112.31895(1) — (2), Fla. Stat. If the complaint remains unresolved for 60 days following the issuance of the fact finding report, the Commission shall terminate the investigation. § 112.31895(3)(d), Fla. Stat. When the complainant receives notice that the Commission has terminated its investigation, he may either file a complaint with the Public Employees Relations Commission pursuant to section 112.31895(4)(a), or institute a civil action in an appropriate circuit court within 180 days. § 112.3187(8)(a), Fla. Stat. In this case, Tillery failed to satisfy the complaint requirements contained in section 112.31895(l)(a) of the Florida Statutes....
...As Tillery was not entitled to a notice of termination of investigation from the Commission, he had no right to pursue a remedy in the circuit court. The route to circuit court is opened to a whistle-blower complainant only after he receives notice of termination of investigation from the Commission. § 112.31895(3)(b), Fla....
...appointment, as is required by the final sentence of section 112.3187(8)(a). ("Upon receipt of notice from the Florida Commission on Human Relations of termination of the investigation... may elect to pursue the administrative remedy available under section 112.31895 or bring a civil action within 180 days after receipt of the notice")....
...216.011, who is discharged, disciplined, or subjected to other adverse personnel action, or denied employment, because he or she engaged in an activity protected by this section. Subsection (a) states that this class of persons: may file a complaint, which complaint must be made in accordance with s. 112.31895. Upon receipt of notice from the Florida Commission on Human Relations of termination of the investigation, the complainant may elect to pursue the administrative remedy available under s. 112.31895 or bring a civil action within 180 days after receipt of the notice....
...Turkiewicz urges that the use of the word "may" in section 112.3187(8)(a) indicates that the filing of a complaint with the FCHR is permissive and not mandatory: "Any employee ... may file a complaint, which complaint must be made in accordance with s. 112.31895." Turkiewicz argues that because the statute uses the word "may," a State employee may file a claim but if he chooses not to file a claim, he still has the option of bringing a civil action within 180 days "after receipt of the notice."...
..., ... who is discharged, disciplined, or subjected to other adverse personnel action, or denied employment, because he or she engaged *146 in an activity protected by this section may file a complaint, which complaint must be made in accordance with section 112.31895.[ [4] ] (Emphasis added)....
...since the act is to be liberally construed to further its general purposes. Turkiewicz's argument is not persuasive because there is easily a distinction between UCF's internal grievance process and the detailed administrative procedure outlined in section 112.31895, which is designed to give the state an opportunity to identify and expeditiously resolve meritorious claims....
...Subsection (c) applies to "any other person protected by this section". Under subsection (c), those persons may, "after exhausting all available contractual or administrative remedies, bring a civil action in any court of competent jurisdiction within 180 days after the action prohibited by this section." [4] Section 112.31895 simply provides that the complaint must be made in writing at the Office of the Chief Inspector General in the executive office of the governor or with the Florida Commission on Human Relations....
...The Commission determined that it did not have jurisdiction to investigate her complaint, because the College was not a "state agency" within the meaning of section 216.001, Florida Statutes (2002). The Commission's jurisdiction to investigate whistle-blower complaints is circumscribed by section 112.31895(1)(a)....
...tion to investigate Caldwell's whistle-blower complaint. We hold that the board of trustees of the College is not a board of "the executive branch of state government" within the meaning of section 216.011(1)(qq), so it is not a "state agency" under section 112.31895(1)(a)....
...ct to the prohibitions contained in section 112.3187 of the Whistle-blower's Act; that definition is broader than the section 216.011 definition of "state agency," which determines whether the Commission is authorized to investigate complaints under section 112.31895(1)(a)....
...- *1084 blower complaint filed against appellee, the Florida Department of Health. The Commission ruled it lacked jurisdiction to investigate the claim under Florida’s “Whistle-blower’s Act” (“the Act”) found in sections 112.3187 through 112.31895, Florida Statutes (2011)....
...irty days in the “appropriate District Court of Appeal.” Appellant filed his appeal and now argues (1) the Commission did not have the discretion to dismiss his complaint without first following the fact-finding and notice procedures mandated in section 112.31895, Florida Statutes (2011); (2) his complaint alleged violations of the Act; and (3) the Commission erred in failing to advise appellant of his right to file a complaint in Circuit Court....
...ty to proceed with a fact-finding investigation” regarding the complainant’s allegations. 104 So.3d 1253 . As we did in Tillery , we conclude here that appellant’s complaint likewise “failed to satisfy the complaint requirements contained in section 112.31895(l)(a) of the Florida Statutes,” id....
...As Tillery was not entitled to a notice of termination of investigation from the Commission, he had no right to pursue a remedy in the circuit court. The route to circuit court is opened to a whistle-blower complainant only after he receives notice of termination of investigation from the Commission. § 112.31895(8)(b), Fla....
...e University by the
Florida Commission on Human Relations. Appellant contends that
the Commission erred by summarily dismissing his complaint on
the basis of untimeliness. We agree because, by rule, the sixty-day
time period to file a complaint, see § 112.31895(1)(a), Fla....
...a specified nature and provides a remedy for an employee against whom such action has been taken. 2 Section 112.3189 , F.S., establishes investigative procedures to be followed upon receipt of whistle-blower information from certain state employees. Section 112.31895 , F.S., establishes investigative procedures in response to prohibited personnel actions....
...Office of the Governor (Chief Inspector General), the Department of Legal Affairs, or the Office of the Public Counsel (Public Counsel) within 60 days after the prohibited personnel action. Within three working days after receiving a complaint under s. 112.31895 , F.S., the officer or office receiving the complaint is required to acknowledge receipt of the complaint and to provide copies of the complaint and any other preliminary information to each of the above named offices. 3 Pursuant to s. 112.31895 (3), the Public Counsel is empowered, among other things, to receive and investigate complaints from employees alleging retaliation by state agencies as the term "state agency" is defined in s....
...The provisions of this section may not be used by a person while he is under the care, custody, or control of the state correctional system, with respect to circumstances that occurred during any period of incarceration. No remedy or other protection under ss. 112.3187 - 112.31895 applies to any person who has committed or intentionally participated in committing the violation or suspected violation for which protection under ss. 112.3187 - 112.31895 is being sought. 3 Section 112.31895 (1)(b), F.S....
...ernor, agency inspector general, or chief internal auditor, or produced from fact-finding or other investigations conducted by the Department of Legal Affairs, the Office of Public Counsel, or the Department of Law Enforcement, under this section or s. 112.31895 is confidential and exempt from s....
...a
state agency “who is discharged, disciplined, or subjected to other adverse personnel
action, or denied employment, because he or she engaged in an activity protected by
[the Whistle-blower’s Act] may file a complaint” in accordance with section
112.31895. Section 112.31895(1)(a) provides that an affected employee may file a
written complaint “alleging a prohibited personnel action, ....
...Pursuant to Rule 60Y-5.001(7)(b), the amended
complaint related back to March 9, 2015. The time period between January 18, 2015
and March 9, 2015, is only fifty days, which is clearly within the sixty-day time
period in which to file timely complaints.
The statutes governing the Whistle-blower’s Act, sections 112.31895 and
112.3187, do not mention amendments to complaints....
...The Florida Department of Transportation (DOT) seeks reversal of a final order which temporarily reinstates Clinton Curtis "to his former contract provision with the Florida Department of Transportation," on the authority of the Florida Whistle-blower's Act, sections 112.3187-112.31895, Florida Statutes (2002)....
...Without reaching the question of whether Curtis' employment status entitled him to the remedies available under the Whistle-blower's Act, we hold the matter should not have proceeded to the circuit court because Curtis' complaint to FCHR was untimely on its face. Section 112.31895(1)(a) provides that a complaint alleging retaliatory action by an employer must be filed no later than 60 days after the retaliatory act....
...is applicable to proceedings under that act. We agree with the argument of the DOT that no provision of the Whistleblower's Act indicates that the legislature has given the FCHR rule-making authority under the Whistle-blower's Act. See §§ 112.3187-112.31895, Fla....
...’s Act: The Florida Commission on Human Relations (Commission) has reviewed your charge form, alleging the Florida Department of Elder Affairs retaliated against you in violation of the Florida Public “Whistle-blower’s Act (Act), §§ 112.3187-112.31895, Florida Statutes (2011)....
...state a claim upon which relief may be granted under the Wdiistle-blower’s Act. Specifically, you did not engage in a protected activity as defined by the Act. Accordingly, the Commission lacks jurisdiction to investigate this claim. §§ 112.3187-112.31895, Florida Statutes (2011)....
...Inc. v. Agency for Health Care Admin., 904 So.2d 610, 611 (Fla. 1st DCA 2005) (quoting Cone v. State, Dep’t of Health, 886 So.2d 1007, 1009 (Fla. 1st DCA 2004)). The Commission’s authority to investigate whistle-blower complaints is set forth in section 112.31895, Florida Statutes. This section provides that the Commission shall receive any allegation of “personnel action prohibited by s. 112.3187 ... and conduct informal fact finding regarding any allegation under this section .... ” § 112.31895(2)(a), Fla....
