Igwe v. City of Miami

Third District Court of Appeal
State of Florida
Opinion filed October 13, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1307
Lower Tribunal No. 11-35238
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Victor Igwe,
Appellant,
vs.
City of Miami,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.
Amlong & Amlong, P.A., and William R. Amlong, Karen Coolman
Amlong, and Ryan C. Brenton (Fort Lauderdale), for appellant.
Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City
Attorney, for appellee.
Themis Law Group, LLP, and Brian Calciano (St. Petersburg); Delegal Law
Offices, P.A., and T.A. “Tad” Delegal, III (Jacksonville), for National
Employment Lawyers Association, Florida Chapter, as amicus curiae.
Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.
ROTHENBERG, J.
Victor Igwe (“Igwe”) appeals the trial court’s entry of final summary
judgment in favor of the City of Miami (“the City”), disposing of Igwe’s
retaliatory discharge claim, which was brought pursuant to section 112.3187,
Florida Statutes (2011) (“the Whistle-blower’s Act” or “the Act”), based on the
trial court’s conclusion that Florida whistle-blower protection does not extend to
individuals who report misconduct as a part of their job description. Because we
conclude that the trial court erred in its determination that Igwe was precluded
from whistle-blower protection on the ground that he reported the City’s
misconduct while carrying out his duties as the Independent Auditor General
(“IAG”) for the City, we reverse.
BACKGROUND
According to the City Charter, the position of IAG was created in order to
provide independent oversight and audit functions for the City, and the IAG has a
duty to report to the City Commission regarding his conclusions and financial
analysis. Miami, Fla. Charter, § 48. It is undisputed that, as part of his job, Igwe
disclosed to the City Commission and the City’s Mayor several instances of
alleged misconduct between 2009 and 2011, including the following: (1) a report
finding that the City had violated its financial integrity principles by engaging in
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improper interfund borrowing; (2) a report identifying the improper transfer of
restricted Local Option Fuel Tax revenues into the City’s general fund; (3) a report
identifying another improper transfer of restricted stormwater utility revenues into
the City’s general fund; and (4) a report that the City was continuing to improperly
transfer restricted revenues into the City’s general fund, even after the issuance of
the prior reports. Igwe also issued a report to the City Commission and the City’s
Audit Advisory Committee, disclosing that the City Attorney had overpaid herself.
During this time period, the United States Securities and Exchange
Commission (“SEC”) and the Federal Bureau of Investigation (“FBI”) also began
investigating the City. In the course of its investigation of the City’s potential
securities law violations, the SEC subpoenaed Igwe to testify about the City’s
alleged misconduct. Igwe complied with the SEC’s subpoena and testified. It is
undisputed that Igwe’s disclosures to the SEC and the reports to the City
Commission were made in accordance with Igwe’s job duties as IAG.
Thereafter, the City declined to renew Igwe’s contract as IAG. In response,
Igwe filed a one-count complaint, alleging that the City retaliated against him by
declining to renew his contract in response to his issuance of the written reports
and cooperation and testimony before the SEC.1 The City moved for summary
1We do not express an opinion regarding whether Igwe suffered retaliatory action
pursuant to section 112.3187(4), as that issue has yet to be decided by the court
below.
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judgment, arguing that (1) Florida’s whistle-blower protection only applies to
those who make voluntary disclosures of misconduct, (2) Igwe’s disclosures were
not voluntary because they were required as a part of his job, and thus (3) Igwe
was not protected by the Act.
The trial court entered an order granting the City’s motion for summary
judgment. Specifically, the trial court found that Igwe’s disclosures were not
voluntary because his disclosures consisted of “things that the job obligated him to
report,” and his cooperation with outside agencies like the SEC and the FBI were
also a part of his job as IAG. The trial court also found that although Florida
common law does not specifically address the issue, federal law in whistle-blower
cases, see Sassé v. U.S. Dep’t of Labor, 409 F.3d 773 (6th Cir. 2005); Huffman v.
Office of Pers. Mgmt., 263 F.3d 1341 (Fed. Cir. 2001), supports the trial court’s
conclusion that “plaintiffs do not engage in protected activity by disclosing
violations of law as part of their job responsibilities.” Therefore, the trial court
concluded that Igwe’s disclosures are not protected by the Whistle-blower’s Act.
Thereafter, Igwe timely appealed.2
2 We note that the federal case law cited to by the trial court in support of its
conclusion that plaintiffs cannot avail themselves of whistleblower protection if
their disclosures were required as a part of their jobs has been superseded by
statute. Balko v. Ukrainian Nat’l Fed. Credit Union, 2014 WL 1377580, at *18
(S.D.N.Y. Mar. 28, 2014) (noting that “[i]n 2012, however, Congress overruled the
reasoning of those cases by [amending the federal whistleblower statute to state]
that an employee is not excluded from whistleblower protection simply because
her disclosure is made during the normal course of duties.”) (internal quotation
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ANALYSIS
We review the trial court’s entry of summary judgment de novo. Volusia
Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
Summary judgment is only appropriate if there are no issues of material fact, and
the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P.
1.510(c). We also review the trial court’s interpretation of a statute de novo. Bay
Cnty. v. Town of Cedar Grove, 992 So. 2d 164, 167 (Fla. 2008).
As this case involves the interpretation of a statute, it is important to bear in
mind that the polestar of statutory interpretation is the Legislature’s intent. Meeks
ex rel. Estate of Meeks v. Florida Power & Light Co., 816 So. 2d 1125, 1131 (Fla.
5th DCA 2002), approved sub nom, BellSouth Telecomms. Inc. v. Meeks, 863 So.
2d 287 (Fla. 2003). Additionally, a single provision of a statute cannot be read in
isolation, and it must be construed together with other provisions which relate to
the same subject matter. Florida Dep’t of Highway Safety & Motor Vehicles v.
Hernandez, 74 So. 3d 1070, 1077 (Fla. 2011) (stating that related statutory
provisions should be read in pari materia). We are also mindful that statutes should
not be interpreted in such a way that leads to an absurd or unreasonable result.
Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995); Yeste v. Miami Herald
Publ’g Co., a Div. of Knight-Ridder Newspapers, 451 So. 2d 491, 493 (Fla. 3d
omitted). Thus, we find that the trial court erred in relying on these federal cases
and decline to discuss them further.
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DCA 1984) (“We are, of course, constrained by law to give full effect to the
legislative purpose behind a statute and to avoid constructions which lead to absurd
or unreasonable results.”).
I. Florida’s Whistle-blower’s Act
Before we address the particular arguments raised by the City, we briefly
discuss the statutory context within which the parties’ disputes appear. We begin
with the construction of section 112.3187(2), which sets forth the Florida
Legislature’s express intent when passing the Act:
It is the intent of the Legislature to prevent agencies or independent
contractors from taking retaliatory action against an employee who
reports to an appropriate agency violations of law on the part of a
public employer or independent contractor that create a substantial
and specific danger to the public’s health, safety, or welfare. It is
further the intent of the Legislature to prevent agencies or
independent contractors from taking retaliatory action against any
person who discloses information to an appropriate agency alleging
improper use of governmental office, gross waste of funds, or any
other abuse or gross neglect of duty on the part of an agency, public
officer, or employee.
§ 112.3187(2) (emphasis added).
The Act defines “agency” as “any state, regional, county, local, or municipal
government entity, whether executive, judicial, or legislative; any official, officer,
department, division, bureau, commission, authority, or political subdivision
therein; or any public school, community college, or state university.” §
112.3187(3)(a). The Act defines “employee” as “a person who performs services
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for, and under the control and direction of, or contracts with, an agency or
independent contractor for wages or other remuneration.” § 112.3187(3)(b). Thus,
the Act was drafted with the intention of preventing the City, which falls under the
definition of “agency,” from taking retaliatory action against Igwe, who falls under
both the definition of “employee” and the plain meaning of “any person,” so long
as the additional express requirements set forth in the Act are met. Two such
requirements, which are set forth in sections 112.3187(6) and 112.3187(7), are in
dispute in the instant case. We address each section in turn.
II. Igwe’s disclosures were made to the correct entity under the Act
Section 112.3187(6) identifies to whom a disclosure must be made:
TO WHOM INFORMATION DISCLOSED.—The information
disclosed under this section must be disclosed to any agency or
federal government entity having the authority to investigate, police,
manage, or otherwise remedy the violation or act, including, but not
limited to, the Office of the Chief Inspector General, an agency
inspector general or the employee designated as agency inspector
general under s. 112.3189(1) or inspectors general under s. 20.055, the
Florida Commission on Human Relations, and the whistle-blower’s
hotline created under s. 112.3189. However, for disclosures
concerning a local governmental entity, including any regional,
county, or municipal entity, special district, community college
district, or school district or any political subdivision of any of the
foregoing, the information must be disclosed to a chief executive
officer as defined in s. 447.203(9) or other appropriate local
official.
(emphasis added). Igwe’s disclosures concerned the City, a “local government
entity.” Therefore, to comply with the this provision, he was required to make his
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disclosures to either the City’s chief executive officer or to another “appropriate
local official.” The phrase, “other appropriate local official,” has been interpreted
to mean “an official or official entity who is affiliated with the violating
governmental entity and has the authority to investigate, police, manage, or
otherwise remedy the violation or act by the violating governmental entity.”
Rustowicz v. N. Broward Hosp. Dist., 174 So. 3d 414, 424 (Fla. 4th DCA 2015)
(emphasis added); see also Quintini v. Panama City Hous. Auth., 102 So. 3d 688,
689 (Fla. 1st DCA 2012).
The City Commission has the authority to “investigate the financial
transactions of any office or department of the city government and the official
acts and conduct of any city official, and by similar investigations may secure
information upon any matter.” See Miami, Fla. Charter, § 14 (emphasis added).
Consequently, it is clear that the City Commission is an “appropriate local official”
regarding the City’s alleged misconduct. We therefore find as a matter of law that
Igwe’s disclosures to the City Commission satisfy the requirements of section
112.3187(6). Additionally, there is nothing in the statute to suggest that Igwe was
thereafter prohibited from discussing his disclosures when subpoenaed by the SEC.
In fact, as our analysis of section 112.3187(7) reveals, the Act expressly protects
such disclosures.
III. Igwe is a protected person under the Act
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Section 112.3187(7) lists precisely who may receive protection under the
Act:
EMPLOYEES AND PERSONS PROTECTED. This section
protects employees and persons who disclose information on their
own initiative in a written and signed complaint; who are requested to
participate in an investigation, hearing, or other inquiry conducted by
any agency or federal government entity; who refuse to participate in
any adverse action prohibited by this section; or who initiate a
complaint through the whistle-blower’s hotline or the hotline of the
Medicaid Fraud Control Unit of the Department of Legal Affairs; or
employees who file any written complaint to their supervisory
officials or employees who submit a complaint to the Chief Inspector
General in the Executive Office of the Governor, to the employee
designated as agency inspector general under s. 112.3189(1), or to the
Florida Commission on Human Relations[.]
(emphasis added). A plain reading of the statute indicates that there are five
categories of protected persons. See Rustowicz, 174 So. 3d at 420-21 (“[T]he
statute extends protection to five categories of employees[.]”). Each category is
independent, as the list is separated by the use of semicolons and by the word “or,”
which “as used in a statute, is a disjunctive article indicating an alternative.” See
TEDC/Shell City, Inc. v. Robbins, 690 So. 2d 1323, 1325 (Fla. 3d DCA 1997)
(quoting 49 Fla. Jur. 2d Statutes § 137, at 179 (1984)). A person who qualifies
under any of these categories will be, by the operation of the plain language of the
text, a person protected by the Act. See Rustowicz, 174 So. 3d at 421-22 (holding
that an audit associate, who qualified for protection under the Act because she was
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requested to participate in an investigation, did not need to make her disclosures in
writing or on her own initiative).
Thus, Igwe is a protected person under section 112.3187(7), as his
disclosures to the City Commission are covered under the category “employees
who file any written complaint to their supervisory officials,” while his subsequent
disclosures to the SEC are covered under the category of persons “who are
requested to participate in an investigation, hearing, or other inquiry conducted by
any agency or federal government entity.”
The City argues, and the trial court found, that the Act does not protect those
who make disclosures as a part of their job description. Specifically, the City
argues that: (1) the words “on their own initiative” in section 112.3187(7) means
that any disclosures under the Act must be voluntarily offered; (2) the words “on
their own initiative” apply to each of the five categories of protected persons under
section 112.3187(7); (3) disclosures made while performing the duties of one’s job
are not voluntary; and therefore, (4) Igwe’s disclosures were not protected by the
Act, as he was required to make the disclosures in the course of doing his job as
the IAG. We disagree with the City’s interpretation for several reasons.
First, we note that the City’s interpretation of “on their own initiative” runs
contrary to the stated purpose of the Act, which is to prevent employers, such as
the City, from taking retaliatory action against “any person” who properly
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discloses “improper use of governmental office, gross waste of funds, or any other
abuse or gross neglect of duty on the part of an agency, public officer, or
employee.” § 112.3187(2) (emphasis added). The phrase “any person” clearly
encompasses those who make disclosures because it is their job to do so, and those
who make disclosures even though they have no employment obligation to do so.
Second, the Florida Supreme Court has unequivocally stated that the Act is a
remedial statute, and should be liberally construed in favor of granting access to
protection from retaliatory actions. Irven v. Dep’t of Health & Rehabilitative
Servs., 790 So. 2d 403, 406 (Fla. 2001) (stating that “[section 112.3187(2)] could
not have been more broadly worded”); Martin Cnty. v. Edenfield, 609 So. 2d 27,
29 (Fla. 1992); Hutchison v. Prudential Ins. Co. of Am., 645 So. 2d 1047, 1049
(Fla. 3d DCA 1994). Contrary to these authorities, the City’s interpretation of “on
their own initiative” as a prerequisite rather than as an option, would be a very
strict and narrow reading of the Act, which would foreclose the possibility of
whistle-blower protection for a large segment of the population, and be in
contravention of section 112.3187(2), which affords statutory protection against
retaliatory action against “any person” who properly discloses the improper
conduct to the appropriate agency.
For example, the City’s interpretation would foreclose the possibility of
whistle-blower protection for those whose job it is, in whole or in part, to manage,
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report, or supervise governmental misconduct. Consider a manager, a foreman, or
an administrator of a public or governmental agency who is tasked with
supervising the employees of that entity. If such a person reports to his boss that
the governmental entity is placing its employees at a substantial risk of injury due
to the failure to provide these employees with the required safety equipment, then
under the City’s interpretation of “on their own initiative,” he would not be
protected by the Act if he was fired in retaliation for reporting the misconduct.
This interpretation would be unreasonable and contrary to the express intent of the
Legislature.
In summary, the City’s interpretation of the statute runs contrary to the plain
meaning of the language contained in the Act and the express intent of the
Legislature to protect “any person” who discloses such misconduct. It also
contradicts the requirement that the remedial statute be liberally construed to favor
access to the statutory remedy, and significantly limits the number of people who
may seek whistle-blower protection after disclosing governmental misconduct. We
therefore reject the City’s interpretation and hold that section 112.3187(7) protects
those who make disclosures regarding “improper use of governmental office, gross
waste of funds, or any other abuse or gross neglect of duty on the part of an
agency, public officer, or employee,” even if they do so in the course of carrying
out their job duties.
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CONCLUSION
Based on our finding that section 112.3187(7), when read in pari materia
with the rest of the statute, protects persons such as Igwe, whose job it was to make
disclosures regarding improper governmental conduct, we conclude that the trial
court erred by entering final summary judgment in favor of the City. We, therefore,
reverse and remand for further proceedings. We find that the City’s remaining
arguments are meritless, and thus we decline to discuss them further.
Reversed and remanded.
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