DEPT. OF HEALTH AND REHAB. v. Irven

724 So. 2d 698, 1999 WL 22435
CourtDistrict Court of Appeal of Florida
DecidedJanuary 22, 1999
Docket97-05373
StatusPublished
Cited by3 cases

This text of 724 So. 2d 698 (DEPT. OF HEALTH AND REHAB. v. Irven) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DEPT. OF HEALTH AND REHAB. v. Irven, 724 So. 2d 698, 1999 WL 22435 (Fla. Ct. App. 1999).

Opinion

724 So.2d 698 (1999)

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant,
v.
Karen IRVEN, Appellee.

No. 97-05373

District Court of Appeal of Florida, Second District.

January 22, 1999.

David H. McClain of McClain & Associates, P.A., Tampa, for Appellant.

Sylvia H. Walbolt, Peter J. Winders, and J. Kevin Carey of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for Appellee.

CAMPBELL, Acting Chief Judge.

In this "whistle-blower" action, appellant, Department of Health and Rehabilitative Services (HRS), challenges the final judgment entered after a jury verdict in favor of its former employee, appellee, Karen Irven. For the reasons that follow, we reverse.

Appellee Irven was formerly employed as a Child Protective Investigator with HRS. She was discharged from her employment effective August 25, 1994, and subsequently filed her "whistle-blower's" civil action complaint pursuant to section 112.3187, Florida *699 Statutes (1993), alleging she was improperly discharged in retaliation for her disclosure of alleged HRS wrongdoings.

HRS raises three issues in this appeal:
I. Whether section 112.3187, Florida Statutes (1993), the "Whistle-Blower's Act," waives sovereign immunity under Article X, Section 13, of the Florida Constitution.
II. Whether Irven's internal memoranda constituted whistle-blowing under section 112.3187, Florida Statutes.
III. Whether Irven's election of remedies under section 112.3187(11) and section 447.401, Florida Statutes, foreclosed her complaint for and evidence of retaliation for whistle-blowing.

While it appears that the third issue raised here by HRS might have merit, our careful review of the record leaves us unconvinced that the "election of remedies" issue was properly presented to the trial court and thereby preserved for our review on this appeal.

In regard to the first issue raised by HRS, it is clear to us that the "Whistle-Blower's Act," sections 112.3187-112.31895, Florida Statutes (1993), clearly and unequivocally waives sovereign immunity for the purposes of the "Remedies" and "Relief" afforded by subsections 112.3187(8) and (9). It is equally clear to us, however, that because any waiver of sovereign immunity must be clear and unequivocal (see Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958)), the waiver must be limited to the acts or conduct clearly and unequivocally prohibited or protected against. Therefore, the waiver must be strictly construed and applied. A protection against acts not clearly delineated as prohibited or protected must not be implied. We, therefore, will consider the first issue raised by HRS in regard to the manner in which it impacts on the second issue raised.

Appellee Irven's reports disclosing information for which she alleges she was discharged from employment grew out of a case of alleged child abuse involving a child (S.S.) concerning whom a petition for dependency was originally filed on October 20, 1993, in the Circuit Court of the Fourth Circuit in and for Nassau County, Florida. Subsequently, both S.S.'s mother, while represented by counsel, and HRS petitioned the Nassau County Court on the basis of rule 8.205(b), Florida Rules of Juvenile Procedure, to transfer the case to the Circuit Court for the Tenth Circuit in and for Polk County, Florida. On January 21, 1994, without objection, the Nassau County Court transferred the case to Polk County. At the time of the transfer of venue, the mother of S.S. resided in Polk County. The acts that led to the dependency petition occurred in Osceola County, and S.S. was then in the temporary care of her maternal grandparents in Nassau County. It was only upon the transfer of the S.S. dependency proceeding to Polk County that appellee Irven became involved as a Child Protective Investigator for HRS. When Polk County received the transfer, Irven complained to Roland Reis, an HRS attorney, about the propriety of the Polk County venue. Reis then ex parte contacted the office of Judge Davis in Polk County. Reis concluded from his contact with Judge Davis's office that Judge Davis was not inclined to "bounce the case back" to Nassau County, and therefore the case would be kept in Polk County.

Irven then began a series of intradepartmental complaints about the handling of the S.S. dependency proceeding, focusing mainly on the change of venue from Nassau County to Polk County. We will subsequently discuss in greater detail the various complaints made by Irven, HRS's response, and Irven's ultimate discharge. For the purpose of this appeal, we accept, as the jury found, that Irven's discharge was in reprisal for her actions in the S.S. case. That, however, is not the determinative issue on this appeal. The determinative issue is whether the acts and communications by Irven were "whistle-blower" acts, as defined and protected by the "Whistle-Blower's Act." If they were not, and we do conclude they were not, it does not matter that she was discharged in reprisal for them. Only reprisal or retaliation for the acts defined by the statute is protected against and for which "Remedies" and "Relief" are afforded.

*700 The "whistle-blower" acts of employees that are afforded protection are clearly enunciated and are statutorily defined as follows:

112.3187 Adverse action against employee for disclosing information of specified nature prohibited; employee remedy and relief.—
....
(2) LEGISLATIVE INTENT.—It is the intent of the Legislature to prevent agencies or independent contractors from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public's health, safety, or welfare. It is further the intent of the Legislature to prevent agencies or independent contractors from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee.
(3) DEFINITIONS.—As used in this act, unless otherwise specified, the following words or terms shall have the meanings indicated:
....
(e) "Gross mismanagement" means a continuous pattern of managerial abuses, wrongful or arbitrary and capricious actions, or fraudulent or criminal conduct which may have a substantial adverse economic impact.
....
(5) NATURE OF INFORMATION DISCLOSED.—The information disclosed under this section must include:
(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public's health, safety, or welfare.
(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.

(Emphasis supplied.)

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Related

City of Jacksonville v. Smith
159 So. 3d 888 (District Court of Appeal of Florida, 2015)
Irven v. DEPARTMENT OF HEALTH AND REHAB.
790 So. 2d 403 (Supreme Court of Florida, 2001)
Lindamood v. OFFICE OF STATE ATTORNEY
731 So. 2d 829 (District Court of Appeal of Florida, 1999)

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Bluebook (online)
724 So. 2d 698, 1999 WL 22435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-health-and-rehab-v-irven-fladistctapp-1999.