Fraternal Order of Police, Gator, etc. v. City of Gainesville, Florida

148 So. 3d 798, 2014 WL 4695131
CourtDistrict Court of Appeal of Florida
DecidedSeptember 22, 2014
Docket1D13-4068
StatusPublished

This text of 148 So. 3d 798 (Fraternal Order of Police, Gator, etc. v. City of Gainesville, Florida) 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
Fraternal Order of Police, Gator, etc. v. City of Gainesville, Florida, 148 So. 3d 798, 2014 WL 4695131 (Fla. Ct. App. 2014).

Opinions

WETHERELL, J.

This appeal presents two issues of first impression concerning the availability of compliance review hearings under section 112.534, Florida Statutes,1 to review alleged intentional violations of the rights afforded to law enforcement officers and correctional officers by part VI of chapter 112, Florida Statutes, which is commonly referred to as the Law Enforcement Officers’ (LEO) Bill of Rights. The issues are (1) whether an officer under investigation by his or her agency for a disciplinary matter is entitled to a compliance review hearing to review alleged violations of the LEO Bill of Rights occurring after the investigation is complete, and (2) whether a compliance review hearing is available when the investigation is based upon a complaint against the officer from a person within the officer’s agency. For the reasons that follow, we hold that a compliance review hearing is available to review alleged intentional violations of the LEO Bill of Rights arising during an investigation irrespective of the source of the complaint that led to the investigation, but that a compliance review hearing is not available to review violations occurring after the investigation is complete.

I. Factual and Procedural Background

This case arose out of the Gainesville Police Department’s investigation of two of its officers, Officer A and Officer B.2 Both of the officers are members of the appellant, Fraternal Order of Police, Gator Lodge 67 (“the Union”).

A. Officer A

Officer A was the subject of a complaint filed by a public citizen. The internal affairs unit of the police department investigated the complaint and interviewed Officer A. It is undisputed that Officer A was afforded all of his rights under the LEO Bill of Rights during his interview and the investigation.

After completing the investigation, the investigator sent his report and the proposed disciplinary action forms to an employee in the City of Gainesville’s human resources (HR) department to review for compliance with City policy. The HR de[800]*800partment employee suggested several wording changes and additions to the forms, but she did not suggest any changes to the investigative report or the proposed disciplinary action.

The police department thereafter notified Officer A of the proposed disciplinary action: a 80-hour suspension, along with “written instruction and cautioning.” After requesting and receiving a copy of the investigative file, Officer A made a public records request for and received his personnel file, whereupon he first learned of the HR department employee’s review of the investigative report and disciplinary action forms.

The following day, Officer A submitted a written “Notice of Intentional Violation and Demand for Compliance Review Hearing Pursuant to Florida Statute 112.534” to the police chief. The notice alleged that, in violation of sections 112.582 and 112.533, Officer A was not provided a complete copy of the investigative file and that non-law enforcement personnel (namely the HR department employee) participated in the internal affairs investigation. The police chief denied the request for a compliance review hearing based upon Officer A’s failure to comply with the procedural requirements in section 112.534.

Officer A was subsequently afforded a so-called “Bill of Rights Conference” pursuant to section 112.532(4)(b) at which he was given an opportunity to address the findings in the investigative report. Thereafter, the police department imposed the proposed disciplinary action. Officer A unsuccessfully appealed the disciplinary action through the grievance process in the collective bargaining agreement between the City and the Union.

B. Officer B

Officer B was the subject of a complaint filed by a non-law enforcement employee of the police department. The internal affairs unit of the police department investigated the complaint and interviewed Officer B. It is undisputed that Officer B was afforded all of his rights under the LEO Bill of Rights during the interview.

Upon conclusion of the investigation, the investigator prepared a report recommending disciplinary action against Officer B. The police department thereafter gave Officer B notice of the proposed disciplinary action: a 40-hour suspension and 8 hours of diversity training.

After Officer B was afforded a Bill of Rights Conference to discuss the findings in the investigative report, the police chief directed the internal affairs unit to ask the complainant to submit to a polygraph examination. The complainant did so, and the police department thereafter notified Officer B of its intent to impose the same disciplinary action contained in the prior notice. The notice also advised Officer B of his right to another Bill of Rights Conference.

On the morning of the second Bill of Rights Conference, Officer B submitted a “notice to come into compliance” to the investigator. The notice alleged the investigation had exceeded the 180-day period provided in section 112.532(6)(a) and that the police department violated Officer B’s rights under the LEO Bill of Rights by not providing him with the results of the polygraph examination.

Officer B was provided a copy of the polygraph examination results that same day. Nevertheless, later in the day, Officer B submitted a “notice of intentional violation [and] demand for a cure” to the police chief. This notice referred to the notice provided to the investigator earlier that morning and asserted that the internal affairs unit indicated its intent to continue the alleged violations.

[801]*801Several days later, Officer B submitted a written “Notice of Intentional Violation and Demand for Compliance Review Hearing Pursuant to Florida Statute 112.584” to the police chief. The notice alleged that, in violation of sections 112.582 and 112.533, Officer B was not provided a complete copy of the investigative file (namely, the polygraph examination results) and that the investigation exceeded 180 days. The police chief denied the request for a compliance review hearing based, in part, on the fact that Officer B did not request a hearing until after the investigation was completed and the notice of disciplinary action was issued.

The police department thereafter imposed the proposed disciplinary action against Officer B. The disciplinary action was subsequently overturned through the grievance process in the collective bargaining agreement, and Officer B received back pay for the period that he was suspended.

C. Trial Court Proceedings

The Union filed a complaint for declaratory relief in the circuit court seeking a declaration concerning the police department’s obligation to convene compliance review hearings for Officers A and B and other similarly situated officers. The trial court held an evidentiary hearing on the complaint and thereafter entered a final judgment determining that neither officer (nor “those similarly situated”3) was entitled to a compliance review hearing.

As to Officer A, the trial court reasoned the declaratory judgment action was moot because the only remedy provided in section 112.534 is the “immediate removal of the investigator from involvement in the investigation” and the investigation of Officer A had been completed and he had already served the resulting disciplinary action.

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Bluebook (online)
148 So. 3d 798, 2014 WL 4695131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fraternal-order-of-police-gator-etc-v-city-of-gainesville-florida-fladistctapp-2014.