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.
No. 3D11-2839
Third District Court of Appeal State of Florida
November 24, 2014
Consolidated: 3D11-2837; Lower Tribunal No. 10-40398
Opinion filed November 24, 2014.
Not final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge.
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
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 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
[T]he OIG recommends that:
- 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 of MDPD officers as the MDPD was the exclusive agency responsible for receiving, investigating and determining complaints against its officers pursuant to
- 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 . - 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). - 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
ANALYSIS
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 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
In Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309, 314 (2008), the Florida Supreme Court explained that
Pursuant to our Constitution, chartered counties have broad powers of self-government. See
art. VIII, § 1(g), Fla. Const. Indeed, underarticle 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 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 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.
No such intention is evidenced here. To the contrary, while
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.
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 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.,
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).
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
In short, and as this court under an admittedly different set of facts and circumstances has already confirmed,
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.