Timoney v. City of Miami Civilian Investigative Panel

990 So. 2d 614, 2008 Fla. App. LEXIS 13452, 2008 WL 4058028
CourtDistrict Court of Appeal of Florida
DecidedSeptember 3, 2008
Docket3D08-677
StatusPublished
Cited by7 cases

This text of 990 So. 2d 614 (Timoney v. City of Miami Civilian Investigative Panel) 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
Timoney v. City of Miami Civilian Investigative Panel, 990 So. 2d 614, 2008 Fla. App. LEXIS 13452, 2008 WL 4058028 (Fla. Ct. App. 2008).

Opinion

990 So.2d 614 (2008)

City of Miami Police Chief John F. TIMONEY, Appellant,
v.
CITY OF MIAMI CIVILIAN INVESTIGATIVE PANEL, Appellee.

No. 3D08-677.

District Court of Appeal of Florida, Third District.

September 3, 2008.

*615 Greenberg Traurig, Alan T. Dimond, Elliot H. Scherker and Elliot B. Kula, Miami, for appellant.

Charles C. Mays, Miami, for appellee.

Cohen & Rind and Ronald J. Cohen, Miami Lakes, for Armando Aguilar as amicus curiae.

Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.

SUAREZ, J.

City of Miami Police Chief John Timoney appeals from an order denying his motion to dismiss the City of Miami Civilian Investigative Panel's ("CIP") investigation for lack of jurisdiction, and granting the CIP's petition to enforce a subpoena requiring him to testify before the panel and provide documents. We affirm.

*616 I. Facts and Procedural History

The CIP[1] received a written complaint on September 14, 2007, alleging that Chief Timoney accepted a free Lexus SUV from Lexus of Kendall and drove the car for approximately fifteen months in violation of local police regulations and state laws. The CIP initiated an investigation into the complaint on October 19, 2007, and served a subpoena on Chief Timoney on November 30, 2007. The subpoena required Chief Timoney to testify before the CIP on December 7, 2007. The day before he was required to appear, CIP's independent counsel received a request from Chief Timoney's assistant to reschedule the CIP hearing because of a conflict in the Chief's schedule. The CIP agreed to reschedule and served Chief Timoney with a second subpoena on December 10, 2007, requiring him to appear on December 17, 2007. Upon receiving his second subpoena, Chief Timoney sent a letter to the CIP independent counsel requesting clarification of the second subpoena. The CIP independent counsel immediately responded, and the CIP again rescheduled his date of appearance to December 21, 2007. Chief Timoney appeared on December 21, but refused to testify or produce any documents.

In accordance with its Enabling Ordinance, the CIP filed a Petition to Enforce Subpoenas in the Circuit Court of Miami-Dade County. The circuit court granted the CIP's petition on January 4, 2008, and directed Chief Timoney to comply with the CIP's two prior subpoenas. Chief Timoney was served with the court's order that day. The CIP then notified Chief Timoney that he was required to appear on January 11, 2008.

Chief Timoney did not appear on that date, but instead filed a Motion to Quash Subpoena Duces Tecum on January 11, 2008. In his motion, Chief Timoney alleged that, as the Chief of Police, he was not subject to the CIP's jurisdiction and that the documents the CIP requested were not public records and therefore not subject to a subpoena. On February 19, 2008, Chief Timoney filed a Motion to Dismiss the Petition for Lack of Jurisdiction, claiming that the CIP no longer had jurisdiction to investigate his alleged misconduct because the CIP's statutorily prescribed deadline of 120 days for completing an investigation had passed four days earlier.

Chief Timoney's motions were argued on March 6, 2006. The trial court denied Chief Timoney's Motion to Dismiss, granted his Motion to Set Aside the Order Granting Petition to Enforce Subpoenas, and again ordered him to comply with the subpoenas immediately. Chief Timoney appealed the trial court's orders, again claiming that he was not subject to the CIP's authority and that the statutorily prescribed time for conclusion of the CIP investigation had ended.

*617 II. Governing Law

The CIP was created to "act as independent civilian oversight of the sworn police department." City of Miami Code, Art. II, § 11.5-27(1) (2002) (emphasis added).[2] The Enabling Ordinance permits the CIP to "conduct investigations, inquiries and public hearings to make factual determinations, facilitate resolution and propose recommendations to the city manager and police chief regarding allegations of misconduct by any sworn officer of the city police department." City of Miami Code, art. II, § 11.5-27(5) (2002) (emphasis added). The ordinance empowers the CIP to accomplish this purpose through different procedures, including initiating and conducting its own investigation or subsequent to a police department internal affairs investigation.[3] The CIP also *618 has the authority to issue subpoenas, after consultation with the State Attorney of the Eleventh Judicial Circuit, (Miami-Dade County) and after approval of the CIP independent counsel, for the purpose of obtaining evidence from witnesses and "production of books, papers, and other evidence, which subpoenas shall be signed, served and enforced pursuant to applicable law ..." City of Miami Code, art. II § 11.5-27(6) (2002).

The Enabling Ordinance also specifically requires that "policies and procedures shall be established to ensure compliance with Chapters 112 and 119 of the Florida Statutes." City of Miami Code, art. II, § 11.5-33(e) (2002). Chapter 112 concerns internal investigations conducted by a police department of its own officers. The pertinent portions of Chapter 112 are sections 112.531 and 112.532, Florida Statutes (2007). Section 112.532, known as the "Police Officers' Bill of Rights," describes the rights and privileges of all law enforcement officers and correctional officers, and imposes conditions for investigation, "whenever a law enforcement officer or correctional officer is under investigation and subject to interrogation by members of his or her agency for any reason which could lead to disciplinary action, demotion or dismissal ..." (emphasis added). That section sets forth the procedures to be followed by the police department for interrogation of a law enforcement officer under investigation by the police department. See § 112.532(1)-(6), Fla. Stat. (2007). Section 112.531(1) defines "law enforcement officers" for the purposes of Chapter 112 internal investigations to include any person, other than the chief of police, who is employed full time by any municipality and whose primary responsibility is the prevention of crime.[4] The *619 chief of police is, therefore, exempt from an internal police department investigation. The CIP's authority, however, extends to independent, external investigations, from which the chief of police is not exempt.

III. Analysis

The CIP has independent investigative authority over the City of Miami's police chief. The plain language of the Enabling Ordinance gives CIP independent civilian oversight of the sworn police department, and that includes the chief of police. See City of Miami Codes, § 11.5-27(1)-(11) (2002). Chief Timoney argues that, as the CIP must comply with the provisions of Chapter 112, Florida Statutes (2007), he is therefore exempt from investigation by the CIP. See City of Miami Code, § 11.5-33(e) (2002). Chapter 112 governs the rights of law enforcement officers while under investigation, and it specifically exempts the police chief from internal agency investigation. §§ 112.531-112.532, Fla. Stat. (2007). We agree with Chief Timoney that the procedures for internal police investigations established by Chapter 112 do not apply to chiefs of police.

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990 So. 2d 614, 2008 Fla. App. LEXIS 13452, 2008 WL 4058028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timoney-v-city-of-miami-civilian-investigative-panel-fladistctapp-2008.