DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DOUGLAS HARRISON and LAURA RAYBIN MILLER,
Appellants/Petitioners,
v.
SOUTH BROWARD HOSPITAL DISTRICT d/b/a MEMORIAL
HEALTHCARE SYSTEM and KIMARIE STRATOS,
Appellees/Respondents.
Nos. 4D2023-0441 and 4D2023-0444
[November 8, 2023]
Consolidated appeal of a nonfinal order from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Carlos A. Rodriguez,
Judge; L.T. Case No. 19-005895 CACE (14); and Petition for writ of
certiorari to the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. 19-005895
CACE (14).
Michael R. Piper and Christopher J. Stearns of Johnson, Anselmo,
Murdock, Burke, Piper & Hochman, PA, Fort Lauderdale, for
appellants/petitioners.
Chris Kleppin and Chelsea Lewis of KLK Law Firm, Plantation, for
appellee/respondent Kimarie Stratos.
PER CURIAM.
Defendants Douglas Harrison and Laura Raybin Miller, members of the
Board of Commissioners of the South Broward Hospital District d/b/a
Memorial Healthcare System (“the District”) seek review of an omnibus
order denying their motions for summary judgment.
In case number 4D2023-0441, Defendants appeal a nonfinal order
denying their motion for summary judgment claiming immunity under
section 768.28(9)(a), Florida Statutes (2018). In case number 4D2023-
0444, Defendants seek certiorari review of the denial of their motion for
summary judgment claiming common law absolute immunity for their acts
as public servants. 1
We have consolidated these cases for resolution by the same panel and
for opinion purposes.
We agree with Defendants that they are entitled to immunity as a
matter of law as to Plaintiff’s tort claims against Defendants for
defamation, tortious interference with an advantageous business
relationship, outrage, and gross negligent infliction of emotional distress.
Accordingly, we reverse the order, grant the petition, and remand for
the trial court to grant summary judgment in Defendants’ favor on these
claims.
Background
In the underlying case, Plaintiff, Kimarie Stratos, has sued the District
for alleged violations of Florida’s Whistleblower’s Act. § 112.3187, Fla.
Stat. (2018).
Stratos formerly served as the District’s Executive Vice President,
General Counsel, and Chief Privacy Officer. Defendants Harrison and
Miller are commissioners on the District’s Board of Commissioners.
Stratos alleges that, in September 2018, when Harrison was serving as
chairman, the Board conducted two unauthorized public meetings to
review Stratos’ performance and voted (4 to 2) to terminate Stratos. The
complaint alleges this action was taken in retaliation for Stratos reporting
that Defendants had committed Sunshine Law violations and other
improper conduct. 2
In addition to her Whistleblower’s Act claim against the District, Stratos
brought claims against Defendants individually for defamation, tortious
1 In case numbers 4D2020-2644 and 4D2020-2655, Defendants previously
sought review of the denial of their motions to dismiss raising these issues.
Review was limited in those proceedings to the four corners of the complaint, and
this Court denied relief without prejudice for Defendants to raise their claims in
subsequent proceedings. Harrison v. Stratos, 326 So. 3d 702, 703 (Fla. 4th DCA
2021).
2 In case number 4D2023-0443, which is consolidated with the instant case for
panel purposes but proceeding separately, the District has sought certiorari
review from the portion of the order denying its motion for summary judgment
on Stratos’ Whistleblower Act claim.
2
interference with an advantageous business relationship, outrage, and
gross negligent infliction of emotional distress. 3 Stratos’ claims are based
on Defendants’ words and actions at the meetings, and their decision to
vote for Stratos’ termination.
The trial court agreed with Stratos that a genuine disputed issue of fact
exists as to whether the Board had authority to terminate Stratos. Stratos
contends that, pursuant to the District’s Bylaws, she was supervised solely
by the Chief Executive Officer (CEO), and the Board had no authority to
review her performance or to terminate her. The trial court agreed with
Stratos that the Board had authority to review and terminate the CEO and
no other employee. Stratos maintains that she worked for the District, not
the Board.
Defendants timely brought these proceedings seeking review.
Jurisdiction and Legal Standards
We have nonfinal appeal jurisdiction over the order denying the claim
of immunity under section 768.28(9). Fla. R. App. P. 9.130(a)(3)(F)(ii). We
have certiorari jurisdiction to consider Defendants’ claim of common law
absolute immunity. See Gay v. Jupiter Island Compound, LLC, 358 So. 3d
780, 786 (Fla. 4th DCA 2023). For certiorari relief, Defendants must show
that the trial court departed from the essential requirements of law
resulting in material injury that cannot be corrected on postjudgment
appeal. Id.
We review the purely legal issues in these proceedings de novo. City of
Fort Lauderdale v. Israel, 178 So. 3d 444, 446 (Fla. 4th DCA 2015);
Stephens v. Geoghegan, 702 So. 2d 517, 522 (Fla. 2d DCA 1997).
Immunity Under Section 768.28(9)(a), Florida Statutes
Defendants contend that they are entitled to summary judgment on
Stratos’ tort claims because they are immune from suit for actions they
took in the scope of their function as Board members under section
768.28(9)(a), Florida Statutes (2018), which provides:
An officer, employee, or agent of the state or of any of its
subdivisions may not be held personally liable in tort or
named as a party defendant in any action for any injury or
3 Stratos has also brought a civil assault claim against Defendant Harrison only.
The assault claim is not at issue in these proceedings.
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damage suffered as a result of any act, event, or omission of
action in the scope of her or his employment or function,
unless such officer, employee, or agent acted in bad faith or
with malicious purpose or in a manner exhibiting wanton and
willful disregard of human rights, safety, or property.
§ 768.28(9)(a), Fla. Stat. (2018). This immunity extends to members of
appointed boards of special districts for acts or omissions “relating to
members’ conduct of their official duties.” § 768.1355(3), Fla. Stat. (2018).
The trial court agreed with Stratos that Defendants acted outside the
scope of their employment and “in a manner exhibiting wanton and willful
disregard of human rights, safety, or property” because the Board allegedly
had no authority to review Stratos’ performance or to discharge her.
Common Law Absolute Immunity
“Under Florida common law, absolute immunity for words spoken or
written by public servants—however false, malicious, or badly motivated
the words may be—extends to public servants in judicial and legislative
activities, and to county and municipal officials in legislative or quasi-
legislative activities.” Gay, 358 So. 3d at 786–87 (citing Hauser v. Urchisin,
231 So. 2d 6, 8 (Fla. 1970)).
The Florida Supreme Court has explained that “the privilege, or
immunity, is absolute and the protection that it affords is complete. It is
not conditioned upon the honest and reasonable belief that the defamatory
matter is true or upon the absence of ill will on the part of the actor.”
Fridovich v. Fridovich, 598 So. 2d 65, 68 (Fla. 1992) (quoting Restatement
(Second) of Torts § 584, at 243).
The privilege applies to other torts beyond defamation, such as tortious
interference and infliction of emotional distress. City of Stuart v. Monds,
10 So. 3d 1134 (Fla. 4th DCA 2009) (“We reject respondents’ argument
that the doctrine of absolute immunity is inapplicable because of the
absence of a defamation claim.”); Cassell v. India, 964 So. 2d 190, 196
(Fla. 4th DCA 2007) (“We further hold that absolute immunity bars [the
plaintiff’s] claim of intentional infliction of emotional distress. This claim
is simply a recast of the defamation claim; it too is barred by the
privilege.”). The privilege likewise applies to Stratos’ tort claim for
“outrage.”
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The immunity extends to all “words or acts within the scope of the
authority of the public servant.” Crowder v. Barbati, 987 So. 2d 166, 168
(Fla. 4th DCA 2008).
The controlling factor in deciding whether the absolute
privilege applies is whether the communication was within the
scope of the [public official’s] duties. The scope of [a public
official’s] duties is to be liberally construed. The term “duties”
is not confined to those things required of the [public official],
but rather extends to all matters which [the public official] is
authorized to perform. Because the balancing of interests
favors the public official, it is considered better to leave
unredressed the wrongs done by dishonest [public officials]
than to subject those who try to do their duty to the constant
dread of retaliation.
Cassell, 964 So. 2d at 194. The alleged conduct need only be “related to
the official’s duties.” Prins v. Farley, 208 So. 3d 1215, 1217 (Fla. 1st DCA
2017) (granting certiorari under similar circumstances, where a
terminated city manager alleged that a city councilman tortiously
interfered with the manager’s employment relationship with the city “by
misleading two council members to vote to discharge” the manager); see
also Stewart v. Sun Sentinel Co., 695 So. 2d 360, 362 (Fla. 4th DCA 1997)
(“Since the statements made concerning the plaintiff’s discharge were
related to and made within the scope of the defendants’ official duties, we
hold that these defendants are entitled to an absolute privilege and are,
therefore, immune from liability for the alleged defamation.”).
“[A]lthough statements made by government officials are protected by
absolute immunity in certain situations, in order for immunity to attach,
the statements must be made within the scope of the official’s duties and
powers.” Albritton v. Gandy, 531 So. 2d 381, 387 (Fla. 1st DCA 1988).
Analysis
The key issue in both of these cases is whether the Board had authority
to hold the meetings and to vote for Stratos’ discharge.
We agree with Defendants that the trial court departed from the
essential requirements of law and reversibly erred in denying their claims
of immunity. Contrary to the trial court’s conclusion, the Board had
authority to review Stratos’ performance and to terminate her. Defendants
cannot be sued based on words spoken and actions taken as Board
members.
5
The District is a special tax district, and its Charter is set out by the
Legislature at Chapter 2004-387, Laws of Florida. The Charter’s Section
3 provides that the District’s governing body is the seven-member Board
of Commissioners appointed by the Governor.
The Charter’s Section 4 gives the Board broad authority and provides
(in relevant part):
(1) The Board of Commissioners of the South Broward
Hospital District shall have all of the following governmental,
corporate, and proprietary powers:
…
(d) Without limiting the generality of the foregoing, to exercise
all of the powers of a corporation organized pursuant to Chapter
607, Florida Statutes.
…
(i) To appoint and employ a superintendent or administrator
and such other agents and employees as the board deems
advisable.
…
(2) The provisions of this act shall be so construed as to
secure and extend to the board of commissioners all powers,
whether governmental, corporate, or proprietary, not expressly
prohibited by the State Constitution and to remove any
limitations judicially imposed or otherwise....
Id.
The District’s Bylaws recognize the Board’s authority under the Charter
and that the Bylaws cannot supersede that authority. The Bylaws provide
(in relevant part):
Article I, Governing Board. . . . Section 3. General Powers: The
general and specific powers of the Board shall be those
authorized under the provisions of the Charter. No portion of
these Bylaws may be construed as superseding or exceeding
such authorized powers.
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(emphasis added).
The Bylaws also recognize the Board’s authority to employ personnel:
The Board of Commissioners is responsible for attaining the
objectives specified in the Charter. These objectives include,
without limitation, selecting and appointing a competent and
experienced President and Chief Executive Officer, and
Medical Staff Members; employing personnel; formulating or
approving such Bylaws as may be desirable for the proper
operation of the Hospital District’s facilities; securing and
controlling the use of all materials and supplies and
maintaining and repairing of the property.
(emphasis added).
The Bylaws require the Board to select and appoint a President and
CEO and provide (in relevant part):
Article V President and Chief Executive Officer . . .
The President and Chief Executive Officer shall be given the
necessary authority and responsibility to operate the facilities
of the Hospital District in all its activities and departments,
subject only to such policies as may be adopted and such
orders as may be issued by the Board or by any of its
committees to which it has delegated power for such action.
The President and Chief Executive Officer shall act as the
authorized representative of the Board in all matters in which
the Board has not formally designated some other person to
act…
The Bylaws set out the President and CEO’s authority and duties as
follows:
Section 3. To select, employ, control and discharge all
employees authorized by the Budget. No Board member may
issue orders to or direct any employee except through the
President and Chief Executive Officer.
(emphasis added).
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Stratos contends that, under the Bylaws, she reported only to the CEO
and only the CEO could fire her. Stratos pointed to evidence that in 2016
and 2017, Defendants tried to get the Board to change the Bylaws to give
the Board authority to review and terminate the general counsel. Former
Board members, the CEO, and other employees testified in deposition that
they did not believe the Bylaws gave the Board authority over Stratos’
position as general counsel.
These witnesses’ opinions, however, are not controlling. The proper
interpretation of the Charter and Bylaws is a question of law reviewed de
novo. We conclude that the Charter and Bylaws on their face plainly give
the Board (acting as a unit) broad authority, including the authority to
employ personnel. The Charter’s Section 4 gives the Board authority to
“appoint and employ . . . other agents and employees as the board deems
advisable.” The Bylaws expressly state that its provisions cannot
supersede the authority granted to the Board by the Charter, and also
recognize the Board’s authority to employ personnel.
While the Bylaws prohibit any individual Board member from directing
an employee, this does not impact the Board’s authority to act as a unit.
The Board had authority to hold meetings to review Stratos’ performance
and to vote for her discharge. The Charter’s Section 4 is clear that the
Board is given “all powers, whether governmental, corporate, or proprietary,
not expressly prohibited by the State Constitution.” (emphasis added).
This broad grant of authority includes the Board’s actions in this case.
Stratos claims that, after the Board’s vote at its September 2018 public
meeting, the CEO did not immediately discharge her and allowed her to
remain on medical leave until late December 2018 because he allegedly
did not believe the Board had authority to fire her.
Even if Stratos was correct that only the CEO could terminate her
employment, this did not preclude the Board from voting and directing the
CEO to discharge Stratos. The Bylaws clearly recognize the Board’s
authority to direct employees through the CEO. S. Broward Hospital Dist.
Bylaws, art. V, § 3 (“No Board member may issue orders to or direct any
employee except through the President and Chief Executive Officer.”)
(emphasis added); S. Broward Hospital Dist. Bylaws, art. V (“The President
and Chief Executive Officer shall be given the necessary authority and
responsibility to operate the facilities of the Hospital District in all its
activities and departments, subject only to such policies as may be adopted
and such orders as may be issued by the Board or by any of its committees
to which it has delegated power for such action.”) (emphasis supplied).
8
The trial court also erred in concluding that Defendants acted willfully
and wantonly under section 768.28(9)(a). The court premised this ruling
on its mistaken belief that the Board did not have authority to terminate
Stratos.
Stratos contends that Defendants are not immune under section
768.28(9)(a) because she presented sufficient evidence to show they acted
in bad faith and with malicious purpose.
Even if this is correct, the common law privilege absolutely immunizes
Defendants for the tort claims at issue. The privilege applies even if
Defendants were acting in bad faith and maliciously. Gay, 358 So. 3d at
786–87. Defendants cannot be sued based on how they acted and voted
as Board members – regardless of their intentions. Thus, Stratos’ tort
claims against Defendants cannot succeed as a matter of law, and
summary judgment should have been granted in Defendants’ favor.
Accordingly, we reverse the order, grant the petition, and remand with
instructions to grant summary judgment on the tort claims at issue.
Reversed and remanded; petition granted.
CIKLIN, CONNER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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