Third District Court of Appeal
State of Florida
Opinion filed November 24, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D11-2839
Consolidated: 3D11-2837
Lower Tribunal No. 10-40398
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Miami-Dade County and Miami-Dade County Office of the
Inspector General,
Appellants,
vs.
Dade County Police Benevolent Association, a Florida not-for-profit
corporation,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Ronald C.
Dresnick, Judge.
Sean M. Ellsworth; Office of the Inspector General and Patra Liu; R.A.
Cuevas, Jr., Miami-Dade County Attorney, Gerald K. Sanchez and Eric A.
Rodriguez, Assistant County Attorneys, for appellants.
Rhea P. Grossman (Ft. Lauderdale), for appellee.
Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
WELLS, Judge.
Miami-Dade County and the Office of the Inspector General (“OIG”) appeal
from an order granting summary final judgment in favor of the Dade County
Police Benevolent Association (“PBA”) on its claims for declaratory relief and
mandatory injunction. Specifically, the court below found that section 112.533 of
the Florida Statutes confers exclusive authority on the Miami-Dade County Police
Department (“MDPD”) to investigate any and all complaints against its police
officers thereby precluding the OIG from conducting an independent, external
investigation of off-duty officers’ compliance with County policies and procedures
regarding outside employment and disclosure of financial gifts and benefits.
Because we cannot agree that this provision or any other portion of the Police
Officers’ Bill of Rights (“PBR”) (sections 112.531 through 122.535 of the Florida
Statutes) precludes non-disciplinary investigations that involve police officers, we
reverse.
FACTS AND PROCEDURAL HISTORY
In December of 2009, the OIG commenced an investigation into whether the
County mayor’s former chief of staff, Denis Morales, and a number of MDPD
employees had properly taken leave from work to travel to Panama as paid
consultants for a private company, Protection Strategies, Inc., which provided
training services for the Panamanian National Police. The investigation focused on
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whether these individuals had violated County restrictions on outside employment,
engaged in questionable leave usage, and improperly obtained and failed to report
first-class ticket upgrades for air travel.
According to a draft report issued by the OIG, the investigation, for the most
part, consisted of an audit of the County’s own records, as well as some records
from the MDPD, Protection Strategies, Inc. and the U.S. Immigration and Customs
Enforcement Agency, and a few interviews of State Department and American
Airlines employees. No police officers were interviewed or subpoenaed. Based on
information gleaned from this investigation, the OIG concluded that the
individuals involved had: (1) failed to properly complete and submit County-
mandated outside employment forms; (2) used a substantial number of
administrative leave hours to perform outside employment; (3) “routinely ignored”
the MDPD policy prohibiting more than twenty hours of outside employment per
payroll week; and (4) obtained and then failed to disclose first-class airline ticket
upgrades despite a MDPD policy directive specifically prohibiting such actions.
Following these findings, a number of recommendations were made as to how to
strengthen County and MDPD policies and procedures governing outside
employment. No disciplinary action against any County or MDPD employee was
suggested:
[T]he OIG recommends that:
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The Mayor’s Office and MDPD take immediate steps to
improve the process of evaluating requests for outside
employment. Those steps should include strict adherence to the
requirements that all required forms be fully completed and
promptly submitted.
All Miami-Dade County Departments should consider requiring
the submission of a separate form for each outside employer
and/or employment activity.
All Miami-Dade County Departmental Directors, and their
subordinate managers and supervisors, conduct the due
diligence necessary to determine whether requested outside
employment is in the best interests of the County.
All Miami-Dade County Departments ensure that outside
employment is monitored so that leave usage in connection
with such employment is properly administered, and that the
duration of the employment does not exceed departmental
limits.
All County employees should be reminded that compliance
with the Conflict of Interest and Code of Ethics Ordinance is
mandatory. Employees should also be reminded that numerous
resources, including ethics training programs and materials,
departmental ethics officers, and the COE are readily available
if the need for information about particular compliance issues,
such as valuing and reporting the receipt of first-class airline
ticket upgrades, should arise.
In July of 2010, the PBA, a labor union representing police officers
employed by the MDPD, filed the underlying complaint for declaratory and
injunctive relief against the OIG and the County on behalf of three police officers
whose activities had been the subject of the OIG investigation, claiming that the
County and the OIG had no authority to conduct an investigation into the activities
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of MDPD officers as the MDPD “was the ‘exclusive’ agency responsible for
receiving, investigating and determining complaints against its officers pursuant to
Section 112.533, Florida Statutes.” The trial court ultimately agreed, and relying
on the decision of our sister court in Demings v. Orange County Citizens Review
Board, 15 So. 3d 604 (Fla. 5th DCA 2009), granted summary judgment precluding
issuance of the OIG’s report:
1. The Miami-Dade Police Department is the exclusive agency
responsible for receiving, investigating and determining complaints
against its sworn police officers pursuant to Section 112.533, Florida
Statutes.
2. The Miami-Dade County Office of the Inspector General has no
jurisdiction to receive, investigate, and publicly report complaints
against sworn police personnel for matters arising out of their
employment with the Miami-Dade County Police Department.
Demings v. Orange County Citizens Review Board, 15 So. 3d 604
(Fla. 5th DCA 2009).
3. The Miami-Dade County Office of the Inspector General shall
remove OIG Report IG09-96 from its website and shall refrain from
prospectively publishing said report in its current form. . . .
Because we find that section 112.533 does not preclude an agency other than the
MDPD from investigating MDPD police officers for non-disciplinary complaints,
and decline to find that Demings requires us to hold otherwise, we disagree and we
reverse.
ANALYSIS
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Article VIII, section 11 of the 1885 Florida Constitution authorized creation
of a metropolitan government for Dade County and conferred upon county electors
the power to adopt a home rule charter pursuant to which the Board of County
Commissioners of Dade County could “pass ordinances relating to the affairs,
property and government of Dade County and provide suitable penalties for the
violation thereof.” See Bd. of Cnty. Comm’rs of Dade Cnty. v. Wilson, 386 So. 2d
556, 559 (Fla. 1980) (“Article VIII, section 11 of the Constitution of 1885
authorized the creation of a metropolitan government for Dade County and granted
to the electors of that county the power to adopt a home rule charter.”); see also
Art. VIII, § 11(1)(b), Fla. Const. (1885) (“[The charter] . . .[m]ay grant full power
and authority to the Board of County Commissioners of Dade County to pass
ordinances relating to the affairs, property and government of Dade County and
provide suitable penalties for the violation thereof.”). Article VIII, section 11 of
the 1885 Florida Constitution was expressly incorporated into the 1968 Florida
Constitution. See Art. VIII, § 6e, Fla. Const. (1968).
Pursuant to this grant of authority, the County adopted a Home Rule Charter
which provides that the County may “[m]ake investigations of county affairs” and
“inquire into the conduct . . . of any department or office of the county.” Miami-
Dade County Home Rule Charter Art. 1, § 1.01A(20). In turn, the Board of
County Commissioners established the OIG, giving it “the authority to make
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investigations of county affairs and the power to review past, present and proposed
County . . . programs, accounts, records, contracts and transactions.” § 2-
1076(d)(1), Miami-Dade County Code; see Sirgany Int’l, Inc. v. Miami-Dade
Cnty., 887 So. 2d 381, 382 (Fla. 3d DCA 2004) (recognizing that “the Miami-Dade
Office of Inspector General has the responsibility to investigate various and sundry
county matters” pursuant to section 1.01A(20) of the Miami-Dade County Home
Rule Charter and section 2-1076 of the Miami-Dade County Code).
The PBA’s claim here is that the OIG’s investigative authority is
unenforceable as to investigations involving police officers because section
112.533 of the Florida Statutes provides the exclusive means for receiving,
investigating and determining any and all complaints against MDPD personnel.
We disagree. Section 112.533 is not the exclusive means for investigating and
determining complaints against the MDPD because neither the charter provision
creating the OIG nor the ordinance according it investigative powers is preempted
by or conflicts with that provision.
In Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309, 314 (2008),
the Florida Supreme Court explained that charter county ordinances1 are
1 We note that while Phantom addresses counties chartered under Article VIII,
section 1(g) of the 1968 Florida Constitution, which confers authority on counties
governed by that provision to enact ordinances not “inconsistent” with general
law, Dade County is governed by Article VIII, section 11 of the 1885 Florida
Constitution, which states that Dade County’s charter and ordinances may not
“conflict” with general law. See Art. VIII, § 6(e), Fla. Const. (1968)
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unenforceable when the county: (1) legislates in a subject area that has been
preempted by the State; or (2) enacts an ordinance that directly conflicts with a
statute:
Pursuant to our Constitution, chartered counties have broad
powers of self-government. See art. VIII, § 1(g), Fla. Const. Indeed,
under article VIII, section 1(g) of the Florida Constitution, chartered
counties have the broad authority to “enact county ordinances not
inconsistent with general law.” See also David G. Tucker, A Primer
on Counties and Municipalities, Part I, Fla. B.J., Mar. 2007, at 49.
However, there are two ways that a county ordinance can be
inconsistent with state law and therefore unconstitutional. First, a
(incorporating Article VIII, section 11 of the 1885 Florida Constitution into Article
VIII, section 6(e) of the 1968 Florida Constitution and expressly stating “Article
VIII, Section[] . . . 11 . . . of the Constitution of 1885, as amended, shall remain in
full force and effect as to each county affected, as if this article had not been
adopted, until that county shall expressly adopt a charter or home rule plan
pursuant to this article”); see also Wilson, 386 So. 2d at 559; see also Barry v.
Garcia, 573 So. 2d 932, 935 (Fla. 3d DCA 1991) (“We first note that Article VIII,
Section 6(e), Florida Constitution (1968), specifically exempts Dade County and
all municipalities therein, from the provisions of Article VIII, wherein it is
precisely stated: ‘as if this article had not been adopted.’ Municipalities in Dade
County are controlled by the provisions of Article VIII, Section 11, of the Florida
Constitution of 1885, as amended in 1956, plus the provisions of the Metro
Charter, until such time as the ‘county shall adopt a charter or home rule plan
pursuant to [Article VIII of the Constitution of 1968].’ This event has not occurred
since the effective date of the 1968 Constitution.”) (footnote omitted).
We find this to be a distinction to be without a difference. See Jordan
Chapel Freewill Baptist Church v. Dade Cnty., 334 So. 2d 661, 664 (Fla. 3d DCA
1976) (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’, as used in [section] 6(f) of Article VIII [of the
1968 Florida Constitution] 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].”).
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county cannot legislate in a field if the subject area has been
preempted to the State. See City of Hollywood v. Mulligan, 934 So.
2d 1238, 1243 (Fla. 2006). “Preemption essentially takes a topic or a
field in which local government might otherwise establish appropriate
local laws and reserves that topic for regulation exclusively by the
legislature.” Id. (quoting Phantom of Clearwater, 894 So. 2d at 1018).
Second, in a field where both the State and local government can
legislate concurrently, a county cannot enact an ordinance that directly
conflicts with a state statute. See Tallahassee Mem'l Reg'l Med. Ctr.,
Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA
1996). Local “ordinances are inferior to laws of the state and must not
conflict with any controlling provision of a statute.” Thomas v. State,
614 So. 2d 468, 470 (Fla. 1993); Hillsborough County v. Fla. Rest.
Ass'n, 603 So. 2d 587, 591 (Fla. 2d DCA 1992) (“If [a county] has
enacted such an inconsistent ordinance, the ordinance must be
declared null and void.”); see also Rinzler v. Carson, 262 So. 2d 661,
668 (Fla. 1972) (“A municipality cannot forbid what the legislature
has expressly licensed, authorized or required, nor may it authorize
what the legislature has expressly forbidden.”).
The charter provision and ordinance at issue here are neither preempted by state
law nor in conflict with it.
Preemption
Preemption, we are told, may be either express or implied. See Sarasota
Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010).
Express preemption requires “a specific legislative statement,” expressing an intent
to completely occupy the field:
Express preemption requires a specific legislative statement; it cannot
be implied or inferred. See City of Hollywood v. Mulligan, 934 So. 2d
1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas
County, 894 So. 2d 1011, 1018 (Fla. 2d DCA 2005), approved in
Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla.
2008). Express preemption of a field by the Legislature must be
9
accomplished by clear language stating that intent. Mulligan, 934 So.
2d at 1243. In cases where the Legislature expressly or specifically
preempts an area, there is no problem with ascertaining what the
Legislature intended. Tallahassee Mem’l, 681 So. 2d at 831.
Id.
No such intention is evidenced here. To the contrary, while section
112.533(1)(a) does require every law enforcement agency to establish a “system”
for receiving, investigating and determining complaints against law enforcement
officers and states that this system is to constitute “the” procedure for investigating
complaints against law enforcement officers, it also makes clear that this system is
to be used for determining disciplinary action:
Every law enforcement 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
. . . officer and for determining whether to proceed with disciplinary
action or to file disciplinary charges.
§ 112.533(1)(a), Fla. Stat. (2012) (emphasis added).
In fact, the PBR taken as a whole focuses on an officer’s rights during
proceedings conducted by his or her employing agency which might lead to
discipline. We therefore find no express preemption exists here.
Nor do we find any implied preemption in the PBR so as to preclude entities
other than a police officer’s employing agency from conducting non-disciplinary
investigations. Implied preemption exists “when ‘the legislative scheme is so
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pervasive as to evidence an intent to preempt the particular area, and where strong
public policy reasons exist for finding such an area to be preempted.’” Browning,
28 So. 3d at 886 (quoting Phantom of Clearwater, Inc. v. Pinellas Cnty., 894 So. 2d
1011, 1018 (Fla. 2d DCA 2005)). Here, other than evidencing an intent to leave
discipline related investigations to a police officer’s employing agency, no other
intent is evidenced. See id. (stating that in determining whether the legislative
scheme is so pervasive as to evidence an intent to preempt the particular area, a
court “must look ‘to the provisions of the whole law, and to its object and policy’”
(quoting State v. Harden, 938 So. 2d 480, 486 (Fla. 2006))); see, e.g., §
112.532(1)(a), Fla. Stat. (2012) (stating “[w]henever a law enforcement 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 under the following conditions”); §
112.532(4)(a), Fla. Stat. (2012) (titled “Notice of disciplinary action”); §
112.532(5), Fla. Stat. (2012) (providing that no law enforcement officer may be
“discharged; disciplined; demoted; denied promotion, transfer, or reassignment” in
retaliation for exercising his or her rights under the PBR); § 112.532(6), Fla. Stat.
(2012) (titled “Limitations period for disciplinary actions”); 112.533(1)(a), Fla.
Stat. (2012) (stating that after a complaint is received for investigation by “the”
procedure established by the PBR, a number of requirements must be met “prior to
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the determination as to whether to proceed with disciplinary action or to file
disciplinary charges”); § 112.533(2)(a)1-2, Fla. Stat. (2012) (providing that
complaints filed against law enforcement officers are confidential until either the
investigation is concluded with a finding “not to proceed with disciplinary action
or to file charges” or concluded with a finding “to proceed with disciplinary action
or to file charges”); §112.535, Fla. Stat. (2012) (stating that the PBR “shall not be
construed to restrict or otherwise limit the discretion of the sheriff to take any
disciplinary action . . . against a deputy sheriff, including the demotion, reprimand,
suspension, or dismissal thereof”).
Moreover, we agree that “[i]t generally serves no useful public policy to
prohibit local government from deciding local issues.” Browning, 28 So. 3d at 887
(quoting Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So. 2d 637,
646 (Fla. 2d DCA 2007), quashed on other grounds, Browning, 28 So. 3d at 887-
88). That is certainly so in this case where we can see no useful public policy in
precluding a local government from investigating compliance with its own policies
and procedures for the purpose of strengthening compliance with them. We
therefore conclude that the legislature has not clearly preempted local regulation of
the field of non-disciplinary investigations involving police officers so as to invoke
the “severely and strongly disfavored doctrine of ‘implied preemption.’” Exile v.
Miami-Dade Cnty., 35 So. 3d 118, 119 (Fla. 3d DCA 2010).
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Conflict
We also discern no conflict between the County ordinance and the PBR
because as the Florida Supreme Court in Phantom of Brevard, Inc., has confirmed,
a conflict between an ordinance and statute will not be found where the ordinance
and the statute can coexist such that compliance with one does not require
violation of the other:
There is conflict between a local ordinance and a state statute
when the local ordinance cannot coexist with the state statute. See
City of Hollywood, 934 So. 2d at 1246; see also State ex rel. Dade
County v. Brautigam, 224 So. 2d 688, 692 (Fla. 1969) (explaining that
“inconsistent” as used in article VIII, section 6(f) of the Florida
Constitution “means contradictory in the sense of legislative
provisions which cannot coexist”). Stated otherwise, “[t]he test for
conflict is whether ‘in order to comply with one provision, a violation
of the other is required.’ ” Browning v. Sarasota Alliance for Fair
Elections, Inc., 968 So. 2d 637, 649 (Fla. 2d DCA 2007) (quoting
Phantom of Clearwater, 894 So. 2d at 1020), review granted, No.
SC07-2074 (Fla. Nov. 29, 2007).
Phantom of Brevard, Inc., 3 So. 3d at 314.
We find nothing in section 2-1076(d)(1) of the Miami-Dade County Code
that conflicts with section 112.533 or any other portion of the PBR. The ordinance
generally authorizes the OIG to conduct investigations of County employees; it
does not confer authority to conduct investigations of police officers for imposition
of discipline, nor does it attempt to override the authority to do so conferred upon
an officer’s employing agency under the PBR. And, while section 112.533(1)(b)1
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does require the County to forward a copy of complaints against law enforcement
officers to the MDPD, it does not require the County to abandon its investigation
into non-disciplinary policy compliance irrespective of any potential MDPD
disciplinary investigation. We therefore find that the ordinance and the PBR may
be reconciled and are not inconsistent with one another.
In short, and as this court under an admittedly different set of facts and
circumstances has already confirmed, section 112.533 does not apply to an
independent, external investigation when that investigation is not being conducted
for any reason which could lead to disciplinary action, demotion or dismissal. See
Timoney v. City of Miami Civilian Investigative Panel, 990 So. 2d 614, 619 (Fla.
2d DCA 2008). As our decision in D’Agastino v. City of Miami, 38 Fla. L.
Weekly D167 (Fla. 3d DCA Jan. 23, 2013) confirms, reliance on the decision from
our sister court in Demings to support a contrary view is misplaced. Rather, “we
prefer and remain quite comfortable with the observation made not so long ago . . .
in Timoney” that the PBR concerns internal investigations conducted by a police
department of its own officers for the purpose of determining whether to impose
discipline, see id. at D169, and that its purpose is not to preclude independent,
external investigations conducted by outside entities for the purpose of setting and
enforcing policy or for determining best practices. We therefore now, once again,
reiterate our statement in Timoney that the PBR does not preclude an independent,
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external investigation of MDPD personnel which does not contemplate
disciplinary action, such as the one the OIG conducted here.
CONCLUSION
Accordingly, we reverse the order granting final summary judgment in favor
of the PBA and remand with instructions that final summary judgment be granted
in favor of the County and the OIG.
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