§ 2-150.1. Compliance and enforcement


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  • (a) Complaint procedures for county employees. A county employee who believes that this division applies to him or her and the county is not complying with the division has a right to file a grievance pursuant to the grievance procedures set forth in the county's merit system rules and regulations, or the grievance procedures set forth in a collective bargaining agreement with the county if the employee is covered by such an agreement. Other than the foregoing, nothing set forth herein shall be construed to amend the merit system rules or extend the protections of the merit system to nonmerit county employees.

    (b) Complaint procedures for employees and former employees of non-county employers. An employee or former employee of a non-county employer who believes that this division applies or applied to him or her, and the non-county employer is or was not complying with the requirements of this division, has a right to complain by filing a written complaint with the purchasing department or construction department, as appropriate.

    (1) The complaint shall be submitted within two (2) years of the alleged violation. The complaint must be in writing and must identify the employee and the non-county employer, and shall include a factual summary of the basis of the complaint. The complaint is considered filed when it is received by the construction department.

    (2) Within ten (10) days of receiving the complaint, the appropriate county department must send written notice of the complaint, along with a copy of the complaint, to the non-county employer and the prime contractor if the non-county employer is a subcontractor, requesting that the non-county employer and, if applicable, the prime contractor, file a written response to the allegations within thirty (30) days of the dated notice. The response is considered filed when it is received by the department.

    (3) Complaints will be resolved as follows:

    a. The director of the appropriate county department shall have the authority to review and attempt to resolve the complaint informally. If the director of the appropriate county department is unable to resolve the complaint informally, then the complaint shall be referred for hearing before a special master.

    b. Hearings shall be conducted by designated special masters who shall have the jurisdiction and authority to hear and decide complaints and to impose enforcement actions consistent with this division.

    1. Conduct of hearing.

    A. All hearings shall be open to the public and a record shall be kept of all hearings.

    B. County staff, the complaining employee, the non-county employer, and, if applicable, the prime contractor, shall be entitled to appear as parties at a hearing, submit evidence, and present testimony of witnesses.

    C. Notice of hearing. The purchasing department shall notify the parties by regular mail of the time, date, and location of the scheduled hearing at least fifteen (15) business days before the hearing date.

    D. A party may request a postponement or continuance of a scheduled hearing by filing a written request with the purchasing department at least five (5) business days before the scheduled hearing. The request must contain the party's reasons for making the request. The director of the purchasing department has the sole discretion to grant or deny the party's request.

    E. If a party is absent from a hearing thirty (30) minutes after the scheduled start time, and proper notice has been sent to the absent party, the hearing may proceed in the party's absence.

    F. The formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Irrelevant, immaterial or unduly repetitious evidence as determined by the special master may be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of the state. Any part of the evidence may be received in written form.

    G. At the conclusion of the hearing, after the parties in attendance have had an opportunity to present their case, the special master shall make a decision based on competent substantial evidence. This decision is final and appealable by writ of certiorari pursuant to the Florida Rules of Appellate Procedure.

    2. Applications for special master. The director of the purchasing department shall select, assign and remove special masters using the same policy and procedure used to select, assign and remove special masters under the county purchasing ordinance. The director of the purchasing department may use special masters under contract to preside over hearings under the county purchasing ordinance to also preside over hearing under this ordinance.

    3. Conflicts of interest. Special masters shall be subject to countywide policy relating to outside counsel conflicts of interest (PPM No. CW-O-52). Special masters shall comply with the State and county ethics codes and the ethics rules of The Florida Bar regarding conflicts of interest. If a special master is unable to give a fair hearing for any reason, that special master should request the director of the purchasing department to reassign the case to another special master.

    4. Complaint hearings.

    A. Scheduling. The director of the purchasing department shall be responsible for scheduling hearings before the special masters.

    B. Contacting the special master. Other than county staff contacting the special master for scheduling or other ministerial purposes, parties shall not contact the special master at any time regarding the complaint.

    C. Location. The location of the hearings shall be in the county.

    5. Compensation. The county administrator may promulgate rules by separate policy and procedure memoranda regarding the compensation of special masters.

    6. Rules of procedure. The county administrator shall have the authority to prescribe rules and regulations by separate policy and procedure memoranda for selection of special masters, the complaint process, and the conduct of hearings before the special masters.

    (c) Enforcement actions against non-county employers.

    (1) The non-county employer, and the prime contractor if the non-county employer is a subcontractor, shall be jointly and severally liable for any monetary liability imposed pursuant to any enforcement action set forth herein.

    (2) Upon a finding of violation of this division, the special master shall impose the following enforcement actions:

    a. Require the non-county employer and the prime contractor, if applicable, to pay wage restitution to the affected employee; and

    b. Impose fines upon the non-county employer and the prime contractor, if applicable, payable to the county in the sum of up to five hundred dollars ($500.00) for each week for each non-county employee found to have not been paid in accordance with this division.

    (3) Upon a finding of violation of this division, the special master also may recommend one (1) or more of the following enforcement actions; unless, if the finding of violation is the third such finding against the non-county employer within any twelve-month period, the special master may recommend all of the following enforcement actions:

    a. That the county suspend payment under the paratransit contract or construction contract;

    b. That the county terminate the paratransit contract or construction contract; and

    c. That the county declare the non-county employer ineligible for future county contracts for two (2) years or until all penalties and restitution have been paid in full, whichever is longer. Any other employer who has a principal officer who is, or was, a principal officer of a violating non-county employer declared ineligible under this division, also shall be ineligible during the violating non-county employer's period of ineligibility.

    (4) A recommendation of the special master under paragraph (3) above shall not be binding on the county but shall constitute cause for the exercise of the purchasing director's authority under Section 2-56 of the Palm Beach County Code, as it may be amended from time to time, or for the termination of the paratransit contract or construction contract.

    (d) Private right of action against non-county employers. Any employee or former employee of a non-county employer may, instead of the procedure set forth in this division but not in addition to such procedure, bring an action in any court of competent jurisdiction by filing suit against the non-county employer, and the prime contractor if the non-county employer is a subcontractor, to enforce the provisions of this division, and may be awarded wage restitution and benefits, and attorney's fees and costs as provided by state law. The applicable statute of limitations for such a claim is two (2) years as provided in F.S. § 95.11(4)(c), in an action for payment of wages. The court may also impose sanctions on the non-county employer and the prime contractor, if applicable, including damages payable to the affected employee in the sum of up to five hundred dollars ($500.00) for each week the non-county employer is found to have violated this division. The non-county employer and the prime contractor, if applicable, shall be jointly and severally liable for any monetary liability.

    (e) Retaliation and discrimination barred. A non-county employer shall not discharge, reduce the compensation of, or otherwise discriminate against any employee for making a complaint to the construction department, the county, or otherwise asserting his or her rights under this division, participating in any of its proceedings or using any civil remedies to enforce his or her rights under this division.

    (f) Remedies non-exclusive. No remedy set forth in this division is intended to be exclusive or a prerequisite for asserting a claim for relief or to enforce a right under this division in a court of law. Violations of this division may be prosecuted as set forth in F.S. § 125.69.

(Ord. No. 03-004, § 5, 2-25-03; Ord. No. 04-002, pt. 4, 1-13-04; Ord. No. 2014-018, § 1, 5-20-14)