D'agastino v. the City of Miami

Third District Court of Appeal
State of Florida
Opinion filed March 16, 2016.
________________
No. 3D10-2704
Lower Tribunal Nos. 09-40869, 09-46161
________________
Freddy D'Agastino, et al.,
Appellants,
vs.
The City of Miami, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Amy Steele
Donner, Judge.
Ronald J. Cohen (Fort Lauderdale), for appellants.
Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney;
Charles C. Mays; Weiss Serota Helfman Cole & Bierman, P.L., and John J. Quick,
for appellees.
Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
SHEPHERD, J.
ON MOTION FOR REHEARING AND CERTIFICATION
Appellant’s motion for rehearing and for certification are denied. On our
own motion, however, we withdraw our previous opinion issued on January 23,
2013, and substitute the following corrected opinion for the original.
This is an appeal from a final judgment entered on cross motions for
summary judgment. Appellants contend, as they argued below, that section
112.533(1), Florida Statutes (2007), provides the exclusive means to investigate
allegations of police misconduct, and the City of Miami Ordinance creating a
Civilian Investigative Panel (CIP) to oversee the sworn police department directly
conflicts with the statute and therefore must fall. For the reasons set forth below,
we disagree.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a civilian complaint lodged with the CIP that alleged
professional misconduct during a traffic stop conducted by City of Miami Police
Lieutenant Freddy D’Agastino. After the City of Miami Police Department
concluded its investigation,1 the CIP subpoenaed Lieutenant D’Agastino to testify
before its Complaint Committee regarding the allegations. In response, Lieutenant
D’Agastino filed a petition in the trial court seeking to quash the subpoena and
obtain a protective order against his having to testify. He alleged that section
1 The Internal Affairs department ultimately determined the allegations in the
complaint were “inconclusive.”
2
112.533(1) granted the police department exclusive authority to investigate
allegations of police misconduct. Section 112.533(1)(a) provides: “Every law
enforcement agency . . . shall establish and put into operation a system for the . . .
investigation . . . of complaints received by such agency from any person, which
shall be the procedure for investigating a complaint against a law enforcement . . .
officer . . . notwithstanding any other law or ordinance to the contrary.” (emphasis
added).
The City of Miami intervened, and was served separately with a declaratory
action by the Fraternal Order of Police seeking to declare unconstitutional those
ordinances empowering the CIP to investigate the City’s law enforcement officers.
The CIP, in turn, joined that action. The two cases ultimately were consolidated
and each party moved for summary judgment. The trial court granted the motions
filed by the City and the CIP, relying upon Timoney v. City of Miami Civilian
Investigative Panel, 990 So. 2d 614 (Fla. 3d DCA 2008). Appellants contend
Timoney is distinguishable and that Demings v. Orange County Citizens Review
Board, 15 So. 3d 604 (Fla. 5th DCA 2009), controls.
SCOPE OF REVIEW
The City of Miami is a municipality located in Miami-Dade County.
Miami-Dade County is a constitutionally authorized home rule county, created
pursuant to an amendment to the Florida Constitution, adopted at the general
3
election held on November 6, 1956. See Article VIII, §6(e), Fla. Const. (1968),
incorporating Article VIII, §11, Fla. Const. (1885). Pursuant to this constitutional
provision, Miami-Dade County is authorized to create, abolish or modify the
boundaries of all municipal corporations, and provide the method by which each
municipal corporation “shall have the power to make, amend or repeal its own
charter,” Art. VIII, §11(c), (g), Fla. Const. (1885), provided, however, that
“Nothing in this section shall limit or restrict the power of the Legislature to enact
general laws which shall relate to Dade County . . . or to any municipality in Dade
County.” Art. VIII, §11(5), Fla. Const. (1885). This section of Article VIII of the
Florida Constitution of 1885 further provides, “[N]or shall the charter of any
municipality in Dade County conflict with this Constitution or any such applicable
general law.” Id. The next section of Article VIII, section 11 of the 1885
Constitution repeats these admonitions. Art. VIII, §11(6), Fla. Const. (1885).
Finally, although the chief purpose of Article VIII, section 11 of the 1885
Constitution was to authorize Miami-Dade County to adopt a home rule charter of
its own, the legislature and electors of the state recognized that these admonitions
would apply to municipal ordinances as well. See Article VIII, § 11(9), Fla. Const.
1885 (“[I]t is further declared to be the intent of the Legislature and of the electors
of the State of Florida that the provisions of this Constitution and general laws
which shall relate to Dade County … or to any municipality in Dade County …
4
enacted pursuant thereto by the Legislature shall be the supreme law in Dade
County, Florida.”). We accordingly restrict our review to a determination of
whether the CIP investigation conflicts with general law.
ANALYSIS
In 2001, the City of Miami Charter was amended to include a mandate that
the city commission create a civilian investigative panel to oversee the sworn
police department. City of Miami Charter, § 51. The following year, the
commission approved an ordinance creating the CIP in accordance with the
Charter’s mandate. Its express purpose is to “[a]ct as independent civilian
oversight of the sworn police department.” Miami, Fla., Code art. II, § 11.5-27(1)
(2002). In furtherance of this purpose, the CIP is authorized to “[c]onduct
investigations, inquiries and public hearings to make factual determinations, [and]
facilitate resolution and propose recommendations to the city manager and police
chief regarding allegations of misconduct by any sworn [police] officer.” Id.
Particularly at issue is the CIP’s subpoena power, through which it can compel a
sworn police officer or other witness to testify before it. Id. at § 11.5-32.
Lieutenant D’Agastino contends the Police Officers’ Bill of Rights (PBR), set forth
under sections 112.532-533 of the Florida Statutes, provides the sole procedure for
investigating police misconduct. To the extent the City charged the CIP with
5
investigatory power, he argues it directly conflicts with the statute and is therefore
expressly prohibited.
A side-by-side comparison of the two laws reveals the pertinent provisions
to be as follows:
§ 112.533, Fla. Stat. (2007) Art. II, § 11.5-27
Receipt and processing of Purposes, powers and duties.
complaints.—
The purpose, powers and duties of the
(1)(a) Every law enforcement agency CIP are to:
and correctional agency shall establish
and put into operation a system for the (1) Act as independent civilian oversight
receipt, investigation, and determination of the sworn police department;
of complaints received by such agency
from any person, which shall be the . . . .
procedure for investigating a complaint
against a law enforcement and (5) Conduct investigations, inquiries
correctional officer and for determining and public hearings to make factual
whether to proceed with disciplinary determinations, facilitate resolution and
action or to file disciplinary charges, propose recommendations to the city
notwithstanding any other law or manager and police chief regarding
ordinance to the contrary. allegations of misconduct by any sworn
officer of the city police department;
....
....
(b)1. Any political subdivision that
initiates or receives a complaint against (9) Make recommendations as to the
a law enforcement officer or disposition of alleged incidents of
correctional officer must within 5 police misconduct, to which the police
business days forward the complaint to chief is required to respond within 30
the employing agency of the officer days[.]
who is the subject of the complaint for
review or investigation.
2. For purposes of this paragraph, the
term “political subdivision” means a
separate agency or unit of local
6
government created or established by
law or ordinance and the officers
thereof and includes, but is not limited
to, an authority, board, branch, bureau,
city, commission, consolidated
government, county, department,
district, institution, metropolitan
government, municipality, office,
officer, public corporation, town, or
village.
A brief perusal of these provisions makes clear the PBR does not purport to
expressly preempt other investigative bodies or means of oversight. Lieutenant
D’Agastino concedes as much. Thus, we proceed to our next task, a determination
whether the CIP “conflicts” with the PBR.
Conflict between legislative provisions is said to exist “if, in order to comply
with one provision, a violation of the other is required.” Jordan Freewill Baptist
Church v. Dade County, 334 So. 2d 661, 664 (Fla. 3d DCA 1976). Some federal
courts have further refined the inquiry to ask whether the local action ‘frustrates
the purpose’ of a state statute. See e.g., Bravman v. Baxter Healthcare Corp., 842
F. Supp. 747, 753 (S.D.N.Y. 1994); see also Hines v. Davidowitz, 312 U.S. 52, 67
(1941). One of our colleagues has urged the explicit recognition and use of this
test in our state district courts of appeal, suggesting that it has been impliedly used
in his court already. See Judge James R. Wolf and Sarah Harley Bolinder, “The
Effectiveness of Home Rule: A Preemption and Conflict Analysis,” 83 Fla. Bar
Jnl, 92, 93 (June 2009) (citing City of Jacksonville v. American Environmental
7
Services, Inc., 699 So. 2d 255 (Fla. 1st DCA 1997)). Other courts ask simply
whether the provisions can “co-exist.” Phantom of Brevard Cnty., Inc. v. Brevard
Cnty., 3 So. 3d 309, 315 (Fla. 2008) (“There is conflict between a local ordinance
and a state statute when the local ordinance cannot coexist with the state statute.”).
In reality, these so-called “tests” are just diagnostic tools available to assist our
decision-making. Under all of them, our proper role is to harmonize and give full
effect to both legislative prerogatives if we can. See City of Hollywood v.
Mulligan, 934 So. 2d 1238, 1244-45 (Fla. 2006) (“When possible, ‘we must give
full effect to all statutory provisions and construe related statutory provisions in
harmony with one another.’”) (quoting Clines v. State, 912 So. 2d 550, 557 (Fla.
2005)). Mindful of this guidance and the limited scope of our review, we have
little difficulty finding the provisions of the CIP and the PBR to be readily
reconcilable.
The City Charter and the CIP’s enabling ordinance clearly establish the CIP
acts independently of the police department and other city officials. City of Miami
Charter § 51(E)(1); Miami, Fla., Code, art. II, § 11.5-27. Indeed, the CIP’s
independence is central to its purpose, as expressed by its mandate: to provide
“independent civilian oversight of the sworn police department.” City of Miami
Charter § 51 (emphasis added).
8
The CIP is granted limited power to act in response to its investigations, and
may only propose recommendations to the City Manager or Police Chief. City of
Miami Charter § 51(E)(1)–(3); Miami, Fla., Code, art. II, § 11.5-27. The CIP has
no management authority over City police officers. It cannot discipline, suspend,
demote, discharge, or transfer city police officers. Management decisions as a
result of police misconduct are reserved to city police administrators, in keeping
with the structure of the PBR. Indeed, the CIP ordinance provides that “[p]olicies
and procedures shall be established to ensure compliance with Chapters 112 and
119 of the Florida Statutes and any other applicable laws.” Miami, Fla., Code, art.
II, § 11.5-33(e) (2002).
Additionally, the City Charter provides the CIP “shall not interfere with any
pending or potential criminal investigation or prosecution.” City of Miami Charter
§ 51(D). The CIP ordinance further dictates the CIP shall “[e]xercise its powers so
as to not interfere with any ongoing investigations and conduct its activities
consistent with applicable law . . . and labor contracts.” Miami, Fla., Code, art. II,
§ 11.5-27(2). To that end, the CIP is restricted from investigating a complaint until
“after determination by its independent counsel, who shall be required to consult
with the appropriate prosecutorial agencies, [so] that an investigation will not
interfere with any pending criminal investigation.” Miami, Fla., Code, art. II, §
11.5-31(2)(a). Finally, the Ordinance provides that “[a] decision of the CIP to
9
proceed with an investigation may be challenged by any agency engaged in such
investigation or prosecution by seeking judicial order in law or equity in a court of
competent jurisdiction,” and that “[w]ritten notification of such challenge to the
CIP shall stay the investigation for 48 hours permitting the agency to obtain such a
judicial order.” Id.
In contrast, the PBR creates a process for internal investigations by the
police department to determine whether to proceed with disciplinary charges. To
this end, section 112.532(1) of the Florida Statutes (2007), provides:
(1) RIGHTS OF LAW ENFORCEMENT OFFICERS AND
CORRECTIONAL OFFICERS WHILE UNDER
INVESTIGATION.—Whenever a law enforcement officer or
correctional officer is under investigation and subject to
interrogation by members of his or her agency for any reason that
could lead to disciplinary action, suspension, demotion, or
dismissal, the interrogation must be conducted under the following
conditions. . . .
(emphasis added). The rights provided under this provision are limited to instances
of investigation and interrogation by members of the officer’s employing law
enforcement agency. This provision makes no reference to external citizen
investigations, and therefore does not apply in that context.
Section 112.533(1)(a) provides:
Every law enforcement agency and correctional agency shall establish
and put into operation a system for the receipt, investigation, and
determination of complaints received by such agency from any
person, which shall be the procedure for investigating a complaint
against a law enforcement and correctional officer and for
10
determining whether to proceed with disciplinary action or to file
disciplinary charges, notwithstanding any other law or ordinance to
the contrary.
(emphasis added). The Appellants urge a reading of section 112.533(1)(a) that
would vest law enforcement agencies with the exclusive authority to investigate
any complaint against their sworn officers. The City, to the contrary, reads section
112.533(1) to apply only to employee discipline. It urges that section 112.533(1)
does not preclude the formation of an independent and external citizens review
panel, such as the CIP, to investigate alleged police misconduct and make
proposed recommendations. We believe the City has the better argument. The
absence of any authority granted to the CIP to make the sort of police management
decisions addressed in Chapter 112, or to affect the obligations that chapter
imposes on the Miami Police Department and its investigators, makes manifest the
absence of a conflict between the CIP ordinance and Chapter 112.
Appellants, Lieutenant D’Agastino and the Fraternal Order of Police urge us
to follow the rationale outlined in Demings, supra. There, the Orange County
Sheriff and one of his deputies challenged the authority of Orange County’s CIP
equivalent, the Citizen’s Review Board (“CRB”), to subpoena deputies or
otherwise investigate civilian complaints of excessive use of force by the
department’s sworn deputies. Noting the Orange County Sheriff is a
constitutionally elected officer possessed of a portion of the sovereign power of the
11
state, the Fifth District Court of Appeal, in the decisive holding in the case,
determined the Sheriff could not be required to account for his activities to a
locally-created board. The court explained:
As an independent constitutional officer, the Sheriff does not derive
his authority from the County’s charter or the board of county
commissioners, and is neither generally accountable to the Board for
his conduct in office nor subject to the board’s direction in the
fulfillment of his duties. Art. VIII, § 1(d), Fla. Const. In the event of
misconduct or misfeasance by the Sheriff, it is Florida’s governor who
is authorized to suspend the Sheriff from office—and not the County’s
governing board. Art. IV, § 7(a), Fla. Const. And, ultimately, the
Sheriff is independently accountable to the electorate of Orange
County. Art. VIII, § 1(d), Fla. Const.; State v. Sheats, 78 Fla. 583, 83
So. 508 (1919) (explaining that the term “office” as used in the
Florida Constitution “implies a delegation of a portion of the
sovereign power to, and the possession of it by, the person filling the
office” or “independent authority of a governmental nature”). Given
this constitutional framework, we [] find that the County cannot
interfere with the Sheriff’s independent exercise of his duty to
investigate misconduct by his deputies either by forcing him to
appoint members to the CRB or by mandating his participation in
CRB proceedings, either in person or through his deputies or
employees.
Demings, 15 So. 3d at 610-11. Although the Fifth District Court of Appeal seemed
to recognize this was the dispositive issue in the case, see Id. at 609 (“[T]he
question presented is whether the County charter and ordinance creating and
authorizing an independent board to review citizen complaints against Sheriff’s
deputies, without first abolishing the constitutional office of sheriff, is
‘inconsistent’ with general law.”), 2 the court also addressed whether the conduct of
2 Because Orange County is a charter county, it is authorized by Article VIII
12
the board was “inconsistent” with section 112.533. Id.3 We simply disagree with
the judgment of the Fifth District Court of Appeal on this point. Rather, we prefer
and remain quite comfortable with the observation made not so long ago by
another panel of this court in Timoney, relating to the issue before us today,
namely that Chapter 112 “concerns internal investigations conducted by a police
department of its own officers” and the PBR “sets forth the procedures to be
followed by the police department for interrogation of a law enforcement officer
under investigation by the police department[,]” Timoney, 990 So. 2d at 618(first emphasis added), while the CIP’s authority “extends to independent,
external investigations.” Id. at 619 (emphasis added). Hence, following
Timoney, we conclude the CIP provides a distinct function that is not prohibited by
section 1(d) of the Florida Constitution to abolish the constitutionally elected office
of sheriff by charter amendment or special law approved by a vote of the electors
so long as all of the duties of the office are transferred to another office.
3Orange County’s “conflict” provision emanates from Article VIII, section 1(g) of
the Florida Constitution, which states: “Counties operating under county charters
shall have all powers of local self-government not inconsistent with general law . .
. . The governing body of a county operating under a charter may enact county
ordinances not inconsistent with general law.” Id. (emphasis added). The terms
are given the same construction in local government law in this state. See Jordan
Chapel Freewill Baptist Church, 334 So. 2d at 664 (affirming the lower court’s
determination that “conflict” in Article VIII, section 11 of the 1885 Florida
Constitution has been construed to mean “contradictory in the sense of legislative
provisions which cannot co-exist.”); see also E.B. Elliott Adver. Co. v. Metro.
Dade Cnty., 425 F.2d 1141, 1150 (5th Cir. 1970) (“The word ‘inconsistent’ means
contradictory in the sense of legislative provisions which cannot co-exist and the
same should be true of the word ‘conflict’ in [section] 11(5) [of Article VIII of the
1885 Florida Constitution].”).
13
the rights and restrictions set forth under Chapter 112. To the extent this
observation was non-dispositive in Timoney, we adopt it here in support of the
rationale already provided for affirmance.
We affirm the decision of the trial court.
WELLS, J., concurs.
Freddy D’Agastino, et al. v. The City of Miami, et al.
Case No. 3D10-2704
ROTHENBERG, J. (dissenting).
Because the City of Miami’s ordinance is preempted by and in conflict with
state law, it is unconstitutional. I, therefore, dissent from the majority opinion
upholding the ordinance.
I agree that this case is governed by Article VIII, section 11 of the 1885
Florida Constitution, as amended in 1968, which authorized the creation of a
metropolitan government for Dade County (now Miami-Dade County) and granted
the county electors the power to adopt a home rule charter. Article VIII, section
11(1)(b) of the 1885 Florida Constitution authorized the charter to grant the Board
of County Commissioners of Dade County the power to pass ordinances relating to
14
the affairs, property, and government of Dade County and to provide appropriate
penalties for violation of its ordinances.
This grant of power to the Board of County Commissioners, however, does
not “limit or restrict the power of the Legislature to enact general laws which relate
to Dade County . . . or any municipality in Dade County . . . relating to county or
municipal affairs . . . .” Art. VIII, § 11(6). Article VIII, section 11(6) further
provides that, the general laws enacted by the Florida Legislature “shall supersede
any part or portion of the home rule charter . . . in conflict therewith and shall
supersede any provision of any ordinance enacted pursuant to said charter and in
conflict therewith . . . .” Id. Thus, section 11(6) preserves the Legislature’s right
to enact laws applicable to Miami-Dade County and the municipalities within
Miami-Dade County and limits the power of Miami-Dade County and its
municipalities to enact charters or laws that are not in conflict with general
(statutory) law. See also Article VIII, § 1(g), Fla. Const. (providing that under the
Florida Constitution, county charters “shall have all powers of local self-
government not inconsistent with general law”) (emphasis added); Article VIII,
§ 2(b), Fla. Const. (granting municipalities broad powers to conduct municipal
government, perform municipal functions, and render municipal services “except
as otherwise provided by law”) (emphasis added).
In recognition of the powers granted and the limitations placed on local
15
governments by the Florida Constitution, the Florida Legislature adopted the
Florida Municipal Home Rule Act in 1973. Sections 166.021(1), (3), and (4),
Florida Statutes (1973), prohibit the exercise of municipal powers where expressly
prohibited by the constitution, general or special law, or where expressly
preempted to state and county government.
(1) As provided in s. 2(b), Art. VIII of the State Constitution,
municipalities shall have the governmental, corporate, and proprietary
powers to enable them to conduct municipal government, perform
municipal functions, and render municipal services, and may exercise
any power for municipal purposes, except when expressly
prohibited by law.
....
(3) The Legislature recognizes that pursuant to the grant of
power set forth in s. 2(b), Art. VIII of the State Constitution, the
legislative body of each municipality has the power to enact
legislation concerning any subject matter upon which the state
Legislature may act, except:
....
(c) Any subject expressly preempted to state or county
government by the constitution or by general law. . . .
(4) The provisions of this section shall be so construed as to
secure for municipalities the broad exercise of home rule powers
granted by the constitution. It is the further intent of the Legislature to
extend to municipalities the exercise of powers for municipal
governmental, corporate, or proprietary purposes not expressly
prohibited by the constitution, general or special law, or county
charter and to remove any limitations, judicially imposed or
otherwise, on the exercise of home rule powers other than those so
expressly prohibited. . . .
§ 166.021, Fla. Stat. (1973) (emphasis added).
The language found in Article VIII, section 2(b) of the Florida Constitution,
“except as otherwise provided by law,” has been interpreted as limiting municipal
16
power where: (1) state law expressly preempts the action, or (2) there exists a
direct conflict between the local ordinance and a state statute. Tallahassee Mem’l
Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st
DCA 1996); see also Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.
3d 880, 886 (Fla. 2010) (holding that “[a] local government enactment may be
inconsistent with state law if (1) the Legislature has preempted a particular subject
area or (2) the local enactment conflicts with a state statute”) (internal quotations
omitted). Because the City of Miami’s ordinance is expressly preempted by
Florida law and is in direct conflict with Florida statutes, the ordinance is
unconstitutional.
ANALYSIS
A. The City of Miami’s Ordinance
In 2002, the City of Miami passed an ordinance creating a civilian
investigative panel (“the CIP”) to “[c]onduct investigations, inquiries and public
hearings to make factual determinations, facilitate resolutions and propose
recommendations to the city manager and police chief regarding allegations of
misconduct by any sworn officer of the city police department[.]” Miami, Fla.,
Code Art. II, § 11.5-27(5).
Specifically, article II, section 11.5-27 of the City of Miami’s Code
provides:
17
The purpose, powers and duties of the CIP are to:
(1) Act as independent civilian oversight of the sworn police
department;
(2) Exercise its powers so as to not interfere with any ongoing
investigations and conduct its activities consistent with applicable law
...;
....
(5) Conduct investigations, inquiries and public hearings to
make factual determinations, facilitate resolution and propose
recommendations to the city manager and police chief regarding
allegations of misconduct by any sworn officer of the city police
department;
(6) Request issuance of subpoenas . . . for the purpose of
obtaining evidence from witnesses and production of books, papers,
and other evidence . . . .
....
(8) Issue reports to the mayor, city commission, city attorney,
city manager, chief of police and the public;
(9) Make recommendations as to the disposition of alleged
incidents of police misconduct, to which the police chief is required to
respond within 30 days[.]
The City of Miami’s code further provides that “[p]olicies and procedures
shall be established to ensure compliance with Chapters 112 and 119 of the Florida
Statutes . . . .” Miami, Fla., Code Art. II, § 11.5-33(e). As will be discussed in
detail below, the City of Miami’s ordinance is expressly preempted by, and is in
direct conflict with, Chapter 112.
B. Chapter 112, Part VI, Law Enforcement Officers’ and Correctional
Officers’ Bill of Rights
Chapter 112, Part VI, governs the rights of law enforcement officers while
under investigation. Section 112.531(1) defines a “law enforcement officer” as:
18
[A]ny person, other than a chief of police, who is employed full time
by any municipality or the state or any political subdivision thereof
and whose primary responsibility is the prevention and detection of
crime or the enforcement of the penal, traffic, or highway laws of this
state; and includes any person who is appointed by the sheriff as a
deputy sheriff pursuant to s. 30.07.
Lt. D’Agastino, the appellant, who was subpoenaed to appear before the CIP
to answer questions and provide testimony to the CIP Committee regarding a
civilian complaint alleging he committed misconduct during a traffic stop, is,
without dispute, a law enforcement officer under section 112.531(1). Lt.
D’Agastino, therefore, is entitled to all of the safeguards and protections set forth
in Chapter 112, Part VI, and specifically sections 112.532 and 112.533, commonly
referred to as the Law Enforcement Officers’ Bill of Rights.
Section 112.532 identifies the rights granted to law enforcement and
correctional officers while under investigation, and begins with the following
preamble. “All law enforcement officers and correctional officers employed by
or appointed to a law enforcement agency or a correctional agency shall have
the following rights and privileges[.]” (emphasis added). Subsection (1)
identifies the rights of law enforcement and correctional officers while under
investigation; subsection (2) addresses who shall serve on complaint boards;
subsection (3) provides a remedy for law enforcement and correctional officers
who are knowingly falsely accused; subsection (4) specifies the notice
requirements; subsection (5) protects law enforcement and correctional officers
19
from retaliation for exercising their rights; and subsection (6) provides a 180-day
time limitation to complete an investigation.
The rights specifically provided in section 112.532(1) are as follows:
(1) RIGHTS OF LAW ENFORCEMENT OFFICERS AND
CORRECTIONAL OFFICERS WHILE UNDER INVESTIGATION.
—Whenever a law enforcement officer or correctional officer is under
investigation and subject to interrogation by members of his or her
agency for any reason that could lead to disciplinary action,
suspension, demotion, or dismissal, the interrogation must be
conducted under the following conditions:
(a) The interrogation shall be conducted at a reasonable hour,
preferably at a time when the law enforcement officer or correctional
officer is on duty, unless the seriousness of the investigation is of such
a degree that immediate action is required.
(b) The interrogation shall take place either at the office of the
command of the investigating officer or at the office of the local
precinct, police unit, or correctional unit in which the incident
allegedly occurred, as designated by the investigating officer or
agency.
(c) The law enforcement officer or correctional officer under
investigation shall be informed of the rank, name, and command of
the officer in charge of the investigation, the interrogating officer, and
all persons present during the interrogation. All questions directed to
the officer under interrogation shall be asked by or through one
interrogator during any one investigative interrogation, unless
specifically waived by the officer under investigation.
(d) The law enforcement officer or correctional officer under
investigation must be informed of the nature of the investigation
before any interrogation begins, and he or she must be informed of the
names of all complainants. All identifiable witnesses shall be
interviewed, whenever possible, prior to the beginning of the
investigative interview of the accused officer. The complaint, all
witness statements, including all other existing subject officer
statements, and all other existing evidence, including, but not limited
to, incident reports, GPS locator information, and audio or video
recordings relating to the incident under investigation, must be
provided to each officer who is the subject of the complaint before the
20
beginning of any investigative interview of that officer. An officer,
after being informed of the right to review witness statements, may
voluntarily waive the provisions of this paragraph and provide a
voluntary statement at any time.
(e) Interrogating sessions shall be for reasonable periods and
shall be timed to allow for such personal necessities and rest periods
as are reasonably necessary.
(f) The law enforcement officer or correctional officer under
interrogation may not be subjected to offensive language or be
threatened with transfer, dismissal, or disciplinary action. A promise
or reward may not be made as an inducement to answer any questions.
(g) The formal interrogation of a law enforcement officer or
correctional officer, including all recess periods, must be recorded on
audio tape, or otherwise preserved in such a manner as to allow a
transcript to be prepared, and there shall be no unrecorded questions
or statements. Upon the request of the interrogated officer, a copy of
any recording of the interrogation session must be made available to
the interrogated officer no later than 72 hours, excluding holidays and
weekends, following said interrogation.
(h) If the law enforcement officer or correctional officer under
interrogation is under arrest, or is likely to be placed under arrest as a
result of the interrogation, he or she shall be completely informed of
all his or her rights before commencing the interrogation.
(i) At the request of any law enforcement officer or correctional
officer under investigation, he or she has the right to be represented by
counsel or any other representative of his or her choice, who shall be
present at all times during the interrogation whenever the
interrogation relates to the officer’s continued fitness for law
enforcement or correctional service.
(j) Notwithstanding the rights and privileges provided by this
part, this part does not limit the right of an agency to discipline or to
pursue criminal charges against an officer.
Both sides agree that the rights granted to law enforcement officers and
correctional officers under section 112.532 only apply when the officer’s
employing agency is conducting an investigation. Thus, the Law Enforcement
Officers’ and Correctional Officers’ Bill of Rights and the protections it provides
21
to law enforcement officers does not protect them when they are being investigated
and questioned by the CIP.
C. The City of Miami’s ordinance is expressly preempted by Florida Statute
Section 112.533, enacted in 1974, was amended in 2003 to add the following
bolded language:
(1)(a) Every law enforcement agency and correctional agency shall
establish and put into operation a system for the receipt, investigation,
and determination of complaints received by such agency from any
person, which shall be the procedure for investigating a complaint
against a law enforcement and correctional officer and for
determining whether to proceed with disciplinary action or to file
disciplinary charges, notwithstanding any other law or ordinance
to the contrary.
§ 112.533(1)(a), Fla. Stat. (2003) (emphasis added).
The use of the word “the” before “procedure” is significant. As stated by the
Attorney General:
“The” is a definite article generally used before nouns with a
specifying or particularizing effect and as opposed to the generalizing
effect of the indefinite article “a” or “an” and, depending on the
context, generally is used to mean but one.
Op. Att’y Gen. Fla. 259 (1981), see also Work v. United States ex rel.
McAlestered-Wards Coal Co., 262 U.S. 200, 208 (1923).
It is also noteworthy that the 2003 amendment provided an express statutory
exception authorizing investigation by the Criminal Justice Standards and Training
Commission. § 112.533(1)(a), Fla. Stat. (2003). It did not, however, provide an
22
exception authorizing citizen review panels to conduct such investigations.
In 2007, section 112.533 was further amended to require that:
(1)(b)1. Any political subdivision that initiates or receives a
complaint against a law enforcement officer or correctional officer
must within 5 business days forward the complaint to the
employing agency of the officer who is the subject of the
complaint for review or investigation.
2. For purposes of this paragraph, the term “political
subdivision” means a separate agency or unit of local government
created or established by law or ordinance and the officers thereof and
includes, but is not limited to, an authority, board, branch, bureau,
city, commission, consolidated government, county, department,
district, institution, metropolitan government, municipality, office,
officer, public corporation, town, or village.
§ 112.533(1)(b), Fla. Stat. (2007) (emphasis added).
There is nothing ambiguous about these amendments. As the Fifth District
Court of Appeal found in Demings v. Orange County Citizens Review Board, 15
So. 3d 604, 608-09 (Fla. 5th DCA 2009), the statute as amended
conveys a clear and definite directive that when a complaint is
registered against a law enforcement officer, the employing agency is
the only local governmental entity authorized to investigate that
complaint. This is clear from: (1) the title language of chapter 2003-
149, designating the investigation required by chapter 112 as the
“exclusive procedure” for investigation; (2) the language added to
section 112.533 in 2003, mandating that the investigation authorized
by chapter 112 “shall be the procedure” for investigating
complaints against local law enforcement “notwithstanding any
other law or ordinance to the contrary;” and (3) the language added
to section 112.533 in 2007, directing any local governmental entity
that receives or initiates a complaint against a law enforcement officer
to forward it to the employing agency for investigation in accordance
with chapter 112.
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(emphasis added).
Thus, the language in section 112.533, as amended, clearly and unambiguously
mandates the procedure that must be followed when investigating a complaint
against a law enforcement or correctional officer. Chapter 112 provides certain
exceptions from this mandate. It provides an exception for the Criminal Justice
Standards and Training Commission. It also authorizes criminal investigations by
the State Attorney’s Office, state and federal grand juries, state and federal
criminal courts, the Florida Department of Law Enforcement, the Federal Bureau
of Investigation, and the United States Department of Justice. See Demings, 15
So. 3d at 608 n.3. Because review by citizen review panels is not excepted, the
City of Miami’s ordinance is preempted by Florida law and is therefore
unconstitutional.
In 2013, the Florida Supreme Court upheld the Fifth District Court of
Appeal’s decision in City of Palm Bay v. Wells Fargo Bank, 114 So. 3d 924 (Fla.
2013), which struck down a municipal ordinance that was inconsistent with, and in
direct conflict with, the general statutory scheme for priority of rights with respect
to interests in real property created by the Legislature. The issue was “conflict
preemption” and the Florida Supreme Court’s analysis is highly instructive.
The Florida Supreme Court began its analysis by acknowledging that “[i]n
Florida, a municipality is given broad authority to enact ordinances under its
24
municipal home rule powers,” City of Palm Bay, 114 So. 3d at 928 (quoting City
of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006)), and that pursuant
to section 166.021 “a municipality may legislate concurrently with the Legislature
on any subject which has not been expressly preempted to the State.” Id.In discussing preemption, the Florida Supreme Court stated the following:
But we have never interpreted either the constitutional or statutory
provisions relating to the legislative preemption of municipal home
rule powers to require the Legislature specifically state that the
exercise of municipal power on a particular subject is precluded.
Instead, we have held that “[t]he preemption need not be explicit so
long as it is clear that the legislature has clearly preempted local
regulation of the subject.” Barragan v. City of Miami, 545 So. 2d
252, 254 (Fla. 1989). We have also recognized that where concurrent
state and municipal regulation is permitted because the state has not
preemptively occupied a regulatory field, “a municipality’s concurrent
legislation must not conflict with state law.” Thomas v. State, 614 So.
2d 468, 470 (Fla. 1993).
The critical phrase of article VIII, section 2(b) — “except as
otherwise provided by law”— establishes the constitutional
superiority of the Legislature’s power over municipal power.
Accordingly, “[m]unicipal ordinances are inferior to laws of the
State and must not conflict with any controlling provision of a
statute.” Thomas, 614 So. 2d at 470. When a municipal “ordinance
flies in the face of state law”— that is, cannot be reconciled with state
law—the ordinance “cannot be sustained.” Barragan, 595 So. 2d at
255. Such “conflict preemption” comes into play “where the local
enactment irreconcilably conflicts with or stands as an obstacle to
the execution of the full purposes of the statute.” 5 McQuillin
Mun. Corp. § 15:16 (3d ed. 2012).
. . . .
[T]he Legislature has created a general scheme for priority of rights
with respect to interest in real property. Giving effect to the
ordinance superpriority provision would allow a municipality to
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displace the policy judgment reflected in the Legislature’s
enactment of the statutory provisions. And it would allow the
municipality to destroy rights that the Legislature established by
state law. A more direct conflict with a statute is hard to imagine.
Nothing in the constitutional or statutory provisions relating to
municipal home rule or in the Local Government Code Enforcement
Boards Act provides any basis for such municipal abrogation of a
state statute. The conflict between the Palm Bay ordinance and state
law is a sufficient ground for concluding that the ordinance super
priority provision is invalid.
We categorically reject the City’s argument that the legislative
enactment of exceptions to a statutory scheme provides justification
for municipalities to enact exceptions to the statutory scheme. No
authority supports this argument. The power to create exceptions to a
legislative scheme is the power to alter that legislative scheme.
“Fundamental to the doctrine of preemption is the understanding
that local governments lack the authority to craft their own
exceptions to general state laws.” 5 McQuillin Mun. Corp. §15:18
(3d ed. 2012). Although municipalities generally have “the power to
enact legislation concerning any subject matter upon which the state
legislature may act,” §166.021(3), Fla. Stat. (2004), in exercising their
power within that scope municipalities are precluded from taking any
action that conflicts with a state statute. In this context, concurrent
power does not mean equal power.
Id. at 928-29. (emphasis added).
The City of Miami’s ordinance does exactly what Florida’s constitution and
the Florida Supreme Court in City of Palm Bay forbids. It creates an exception to
the statutory scheme provided in Chapter 112, Part VI, which governs the rights of
law enforcement officers while under investigation. As previously stated, section
112.533(1)(a) establishes “the” procedure which “shall be the procedure for
investigating a complaint against a law enforcement and correctional officer,” and
section 112.533(1)(b) requires that any complaint filed against a law enforcement
26
or correctional officer must be forwarded to the employing agency of the officer
for investigation. The statute “conveys a clear and definite directive that when a
complaint is registered against a law enforcement officer, the employing agency is
the only local governmental entity authorized to investigate that complaint.”
Demings, 15 So. 3d at 608.
The only exceptions to this statutory scheme have been explicitly provided
by the Legislature. The Legislature has provided an exception for the Criminal
Justice Standards and Training Commission, see § 112.533(1)(a), and it
additionally authorizes investigations of law enforcement and correctional officers
by the State Attorney’s Office, state and federal grand juries, state and federal
courts, the Florida Department of Law Enforcement, the Federal Bureau of
Investigation, and the United States Department of Justice. See Demings, 15 So.
3d at 608 n.3. Conspicuously missing from this list are citizen review panels.
And as the Florida Supreme Court stated in City of Palm Bay, “[f]undamental to
the doctrine of preemption is the understanding that local governments lack the
authority to craft their own exceptions to general state laws . . . concurrent power
does not mean equal power.” City of Palm Bay, 114 So. 3d at 929.
D. The City of Miami’s ordinance is also in conflict with Florida law
The City of Miami’s ordinance is not only preempted by state law, it is also
in direct conflict with state law. Section 112.533, as amended in 2003 and 2007,
27
specifies that a law enforcement agency’s internal investigation shall be the
procedure for investigating law enforcement and correctional officers
notwithstanding any other law or ordinance to the contrary. § 112.533(1)(a),
Fla. Stat. (2007). In 2007, the statute was also amended to direct all local
governmental entities that receive or initiate a complaint against a law enforcement
or correctional officer to forward the complaint to the employing agency for
investigation in accordance with Chapter 112. § 112.533(1)(b).
Section 112.533 also adds various other duties by the investigating agency
and protections for the law enforcement or correctional officer being investigated.
For example, section 112.533(1)(a) dictates that agency personnel assigned to the
investigation must: prepare a report; verify that the contents are true and
accurate based on personal knowledge, information, and belief; and include a
sworn statement attesting that the rights of the officer under investigation
contained in sections 112.532 and 112.533 have been honored. Section
112.533(2)(a) provides that the complaint and investigation must be kept
confidential until the investigation is closed or the agency head provides written
notice to the subject officer informing the officer that the investigation has
concluded and whether disciplinary charges will be filed. Section 112.533(2)
additionally grants the subject officer and/or his attorney broad discovery rights
and access, and section 112.533(4) establishes penalties for premature willful
28
disclosure or failure to provide the subject officer with access to the identified
discoverable items.
These statutorily mandated obligations of the investigating agency and the
rights granted to law enforcement and correctional officers are not similarly
required or granted under the City of Miami’s ordinance, nor are the rights set forth
in section 112.532. Specifically, section 112.532(1) requires that: (1) the
interrogation take place at the precinct or correctional unit where the incident
allegedly occurred, at a reasonable time and preferably while the officer is on duty,
§ 112.532(1)(a-b); (2) all questions directed to the officer be asked by or through
one interrogator during any one investigative interrogation, § 112.532(1)(c); (3) the
officer under investigation must be informed of the nature of the investigation, the
name of the complainant(s) and witnesses, all witness statements, and other
evidence obtained, prior to the interrogation of the subject officer, § 112.532(1)(d);
(4) the interrogation must be recorded and be made available upon request by the
subject officer within 72 hours of the interrogation, § 112.532(1)(g); (5) if the
subject officer is under arrest or is likely to be placed under arrest as a result of the
interrogation, he or she must be informed of his or her rights prior to
commencement of the interrogation, § 112.532(1)(h); and (6) the subject officer
has the right to be represented by counsel and have counsel present during the
interrogation, § 112.532(1)(g). The City of Miami Ordinance does not provide
29
these protections.
The following protections are also provided by Chapter 112, Part VI, to law
enforcement and correctional officers under investigation and are not required by
the City of Miami’s ordinance. Section 112.532(3) grants law enforcement and
correctional officers the right to bring a civil suit against any person, group,
organization or corporation, or the head of such organization or corporation, for
abridgment of the officer’s rights or for filing a complaint which the person or
entity knew was false when it was filed. Section 112.532(6) additionally restricts
the investigation to a 180-day period.
Because the City of Miami’s ordinance does not include these substantial,
material requirements and rights, it is in direct conflict with sections 112.532 and
112.533. Therefore, the ordinance is unconstitutional. To hold otherwise would
render these statutes meaningless and provide law enforcement and correctional
agencies with a mechanism to obtain statements and other evidence from its
officers by non-statutorily created boards that are not required to comply with the
statutory mandates contained in Chapter 112. In other words, it would permit law
enforcement to use evidence the CIP obtained without affording the subject officer
the protection of the Law Enforcement Officers’ Bill of Rights.
In reaching its contrary conclusion, the majority relies on this Court’s
opinion in Timoney v. City of Miami Civilian Investigative Panel, 990 So. 2d 61430
(Fla. 3d DCA 2008), while noting that the majority opinion conflicts with the Fifth
District Court of Appeals opinion in Demings. Timoney, however, did not address
the constitutionality of the City of Miami’s ordinance or analyze whether the
ordinance conflicts with or is preempted by state statute. This Court in Timoney
merely determined that because Chapter 112 only governs the rights of law
enforcement officers under investigation, and the definition of “law enforcement
officer” in section 112.531(1) specifically exempts the chief of police from its
definition, Chapter 112 did not apply to Chief Timoney and he was therefore
subject to the CIP’s investigative subpoena. Timoney is therefore not controlling.
Indeed, the majority, does not contend that it is. Conversely, the Fifth District
Court of Appeal in Demings did address the constitutionality of a similar county
ordinance in Orange County and found that it was in direct conflict with Chapter
112. I wholeheartedly agree with the Fifth District’s opinion in Demings.
In Demings, Orange County’s Sheriff, Jerry Demings, and his deputy,
Steven Jenny, appealed the trial court’s order upholding the sections of Orange
County’s charter and ordinances establishing the Orange County Citizen’s Review
Board (“the CRB”), which is similar to the board created by the City of Miami, the
CIP, and was created to investigate citizen complaints of excessive force and abuse
of power. Demings, 15 So. 3d at 605. After analyzing section 112.533, as
amended in 2003 and 2007, the Fifth District Court of Appeal concluded it was
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unambiguous and “[i]t conveys a clear and definite directive that when a complaint
is registered against a law enforcement officer, the employing agency is the only
local governmental agency authorized to investigate the complaint.” Id. at 608.
The Fifth District thus concluded that “[b]ecause section 112.533 limits the
investigation of complaints against law enforcement officers by local
government to the employing agency’s investigation, the charter provisions
and ordinance that establish an additional procedure for investigating these
complaints necessarily and directly conflict with the statute.” Id. at 609(emphasis added).
CONCLUSION
Because the City of Miami’s ordinance is preempted by state law and it is in
direct conflict with sections 112.532 and 112.533, it is unconstitutional. I,
therefore, respectfully disagree with the majority opinion upholding the ordinance.
Additionally, the majority recognizes, and clearly states, that it “disagrees” with
the Fifth District Court of Appeals’ opinion in Demings, but then it refuses to
certify conflict without addressing its reason(s) for doing so. Because the majority
opinion is in direct conflict with Demings, I also respectfully dissent from the
majority’s refusal to certify direct conflict with Demings.
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