CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 1987 WL 3010
...Bourque, Miami, for appellee/cross-appellant. Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ. PER CURIAM. We conclude that the exclusive remedy for noncompliance with Section
112.532, Florida Statutes (1983), is injunctive relief as provided in Section
112.534, Florida Statutes (1983), and accordingly reverse the money judgment for the appellee, Michael M....
...On appeal, the appellants contend, inter alia, that relief under the Policeman's Bill of Rights is exclusively injunctive. Because we decide this issue in the appellants' favor, we need not reach any other issues raised by them or any issues raised by Cosgrove in his cross-appeal. Section 112.534 of the Policeman's Bill of Rights provides as follows: "Failure to comply....
...cuit court of the county wherein such employing agency is headquartered and permanently resides for an injunction to restrain and enjoin such violation of the provisions of this part and to compel the performance of the duties imposed by this part." Section
112.534 is the only remedy provision of Part VI of Chapter 112, and thus the only express remedy provision applicable to alleged breaches of Section
112.532(4) and (5). Clearly, Section
112.534 provides only for a suit for an injunction, not for an action for damages....
...erned only broker's licensing; "where, as here, a statute or regulation creates a duty unknown to the common law, the remedy provided therein for violation of the duty is exclusive") (footnote omitted). We thus think that the correct construction of Section 112.534 is that given it by our sister court in Migliore v....
...4th DCA 1982), approved,
431 So.2d 986 (Fla. 1983), where it was decided that the plaintiff/law enforcement officers were required to bring their claims for reinstatement to the appropriate administrative board and were not entitled to avail themselves of the injunctive remedy of Section
112.534: "This section operates only to immediately restrain violation of the rights of police officers by compelling performance of the duties imposed by Sections
112.531 to
112.533....
...y can be compelled to provide the proper notice; and, if an officer is refused review by the complaint review board, under appropriate circumstances, the agency can be compelled to grant such review." Migliore v. City of Lauderhill,
415 So.2d at 65. Section
112.534, then, is no more than a vehicle for enforcing the procedures established in the preceding sections of this part of the statute; it is not a vehicle for the restoration of substantive rights, whether the restoration is sought by mandamus, injunction, or, as here, an action for damages....
...Co. v. Wallace,
209 So.2d 719 (Fla. 2d DCA 1968) (no subject matter jurisdiction in circuit court, since insurance policy limit was only $500 for each person). *1129 Cosgrove's other arguments are even less convincing. He argues, first, that because Section
112.534 permits but does not require an aggrieved law enforcement officer to apply for injunctive relief, he therefore may seek damages....
...2d DCA 1984) (where statute is in derogation of common law, presumption is that no change intended unless explicitly so stated inference and implication cannot be substituted for clear expression), approved,
512 So.2d 934 (Fla. 1987). In the present case, neither before nor after the enactment of Section
112.534, Florida Statutes, was there a right to recover damages....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 31 I.E.R. Cas. (BNA) 1009, 2010 Fla. App. LEXIS 18677, 2010 WL 4829816
...While Migliore did not address this specific provision, its holding was based on the interpretation of the term "receipt." See
415 So.2d at 63-64. The Migliore court concluded that a law enforcement agency's "receipt" of a complaint, as that language was used in section
112.534, Florida Statutes (1981), *494 meant its receipt of a complaint from a person outside the agency....
...ncy "receives notice of the allegation." Thus, the concept of the agency's receipt of an allegation or complaint is as vital to an interpretation of section
112.532(6)(a), Florida Statutes (2008), as it was to the Fourth District's interpretation of section
112.534, Florida Statutes (1981)....
...Therefore, the agency's interpretation of its role, which is purely statutory, is correct. The LEO Bill of Rights itself indicates that enforcement of its provisions is to be accomplished through the circuit court, rather than the Commission. Specifically, section 112.534(1), Florida Statutes (2008), provides the following remedy for all violations of the LEO Bill of Rights: If any law enforcement agency or correctional agency fails to comply with the requirements of this part, a law enforcement office...
...This provision was applied in City of Miami v. Cosgrove,
516 So.2d 1125, 1126 (Fla. 3d DCA 1987), where a dismissed police officer sued for damages based on an alleged violation of the LEO Bill of Rights. The Third District held that the officer was not entitled to damages because section
112.534, which was "the only remedy provision of Part VI of Chapter 112, ... provide[d] only for a suit for an injunction, not for an action for damages."
516 So.2d at 1127. For this reason, the Cosgrove court held that section
112.534 was "no more than a vehicle for enforcing the procedures established in the preceding sections of this part of the statute" and "not a vehicle for the restoration of substantive rights, whether the restoration is sought by mandamus, injunction, or ......
...The Migliore court also addressed this provision, observing that it "operate[d] only to immediately restrain violation of the rights of police officers by compelling the performance of the duties imposed by [s]ections
112.531 to
112.533."
415 So.2d at 65. Because the version of section
112.534 in effect in 2008 still provided only for injunctive relief through the circuit court, this remedy was the only one available to Appellant, per the decisions in Cosgrove and Migliore. We recognize that the statutory remedy provided for violation of the LEO Bill of Rights gave Appellant a short window of opportunity for an officer to assert rights under section
112.532(6)(a). Nevertheless, based on the plain language of section
112.534 and the limitations on the Commission's authority, it was the only remedy available to him....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 4695131
...Deem of Donnelly & Gross, P.A.,
Gainesville, for Appellant.
Stephanie M. Marchman, Senior Assistant City Attorney, Gainesville, for
Appellee.
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....
...rida Statutes unless
otherwise indicated.
2
The parties agreed below to refer to the officers by these pseudonyms even
though the City disputed the Union’s claim that the identity of the officers was
confidential under sections
112.533(2)(a) or
112.534(1)(e)....
...Violation and Demand for Compliance Review Hearing Pursuant to Florida Statute
to whether it was necessary or appropriate to refer to the officers by pseudonyms
under the circumstances of this case because that issue is not before us.
3
112.534” to the police chief....
...t 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....
...to continue the alleged violations.
5
Several days later, Officer B submitted a written “Notice of Intentional
Violation and Demand for Compliance Review Hearing Pursuant to Florida Statute
112.534” to the police chief....
... 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. As to Officer B, the trial court reasoned that the
remedy provided in section 112.534 is not available because the investigation of
Officer B resulted from an internal complaint and, based upon McQuade v.
Department of Corrections, 51 So....
...t arise internally to a law enforcement
agency.”
This appeal followed.
II. Analysis
The issues raised in this appeal involve the proper interpretation of the LEO
Bill of Rights, and particularly, section 112.534....
...larly situated
officers, and the only finding made by the trial court pertaining to other officers
was that, “[a]s to other [Gainesville Police Department] officers, between the
effective date of the compliance review panel provisions contained in section
112.534, Florida Statutes, and the conclusion of trial, several requests for a
compliance review panel have been made, but none has ever been convened.”
7
Aircraft Indus., Inc....
...O Bill of
8
Rights could petition the circuit court for an injunction to “restrain and enjoin such
violation” and to “compel the performance of the duties imposed by [the LEO Bill
of Rights].” § 112.534(1), Fla....
...“compliance review hearing” before an administrative panel with the authority to
award only limited relief: removal of the investigator from further involvement
with the investigation of the officer. See Ch. 2009-200, § 3, Laws of Fla.
(amending section 112.534).
A....
...available to review alleged intentional violations of the LEO Bill of Rights
occurring after the investigation is complete and the agency notifies the officer of
the proposed disciplinary action. Our analysis of this issue begins, and ends, with
the plain language of section 112.534, which provides in pertinent part:
(1) If any law enforcement agency or correctional agency, including
investigators in its internal affairs or professional standards division,
or an assigned investigating supervis...
...If that investigation is
sustained, the sustained allegations against the investigator shall be
forwarded to the Criminal Justice Standards and Training Commission
for review as an act of official misconduct or misuse of position.
§ 112.534(1), Fla....
...But that is what paragraph (a) requires. Likewise, the provisions of
paragraph (b) – requiring the interview to cease and providing that the failure to
respond to further investigative questions is not grounds for discipline – would
serve no purpose if the procedure in section 112.534 was construed to apply to
alleged violations occurring after the investigation is complete.
We are obligated to give meaning to all parts of a statute and, in doing so,
we simply cannot accept the Union’s argument that a compliance review hearing is
available to review alleged violations of the LEO Bill of Rights occurring after the
investigation is complete. We recognize that, by construing section 112.534 to
12
apply only to alleged violations occurring during the course of the investigation,
the scope of the remedy for violations of the LEO Bill of Rights is considerably
more limited than it was prior to 2009. This, however, is a function of the 2009
amendments to section 112.534, which replaced a broad judicial remedy with a
narrow administrative remedy....
...In reaching this conclusion, we have not overlooked Migliore v. City of
Lauderhill,
415 So. 2d 62 (Fla. 4th DCA 1982), approved
431 So. 2d 986 (Fla.
1983), which can be read to support the proposition that the remedy in the prior
version of section
112.534 was not limited to alleged violations of the LEO Bill of
Rights occurring during the investigation. Specifically, the court observed that:
This section [section
112.534, Florida Statutes (1981)]
operates only to immediately restrain violation of the
rights of police officers by compelling performance of
the duties imposed by Sections
112.531 to
112.533....
...is refused review by the complaint review board, under
appropriate circumstances, the agency can be compelled
to grant such review.
Id. at 65. However, at the time of Migliore (and, until 2009), the remedy provided
in section 112.534 was considerably broader that it is now. Compare § 112.534,
Fla. Stat. (1981, 2008) (providing for an injunction “to restrain and enjoin”
violations of the LEO Bill of Rights and “to compel performance of the duties
imposed by [the LEO Bill of Rights]”) with § 112.534(1)(g), Fla....
...r, that the Legislature
intended the compliance review hearing to be a name-clearing hearing (as appears
to be the case with the complaint review boards under section
112.532(2)); rather,
as explained above, it is clear from an in toto reading of section
112.534 that the
exclusive purpose of the compliance review hearing is to remedy violations of the
LEO Bill of Rights occurring during the investigation by removing the investigator
14
from further involvement in the case.
Finally, we have not overlooked the dissent’s argument that section
112.534(1)(g) indicates that the compliance review hearing is intended to serve a
dual remedial purpose and that our interpretation of the statute does not give effect
to the legislative intent that investigative misconduct be dealt with appropriately,
even if first discovered after the investigation is complete....
...available to review alleged intentional violations of the LEO Bill of Rights arising
in an investigation of complaint made by a person within the officer’s agency. Our
resolution of this issue begins with statutory language in sections
112.532 and
112.534, but also requires us to consider the McQuade decision relied on by the
trial court.
Section
112.532 broadly provides, without qualification or exemption,4 that
the rights listed in that statute are available “whenever a law enforcement officer or
correctional officer is under investigation ....
...This language is clear and unambiguous and cannot be
reasonably construed to support the proposition that all of the rights afforded by
the LEO Bill of Rights are limited to investigations arising out of external
complaints.
Likewise, nothing in section 112.534 ties the availability of a compliance
review hearing to the source of the complaint....
...112.532, F.S. apply to any interrogation of a police officer by
members of his agency if the investigation could lead to disciplinary action,
demotion, or dismissal of the officer.”).
16
[the LEO Bill of Rights].” § 112.534(1), Fla. Stat. Although courts have held that
some portions of the LEO Bill of Rights apply only to external complaints, 5 it
would make no sense to construe section 112.534 to provide for compliance review
hearings only to remedy alleged violations arising out of investigations of external
complaints because the source of the complaint has no bearing on most of the
rights afforded by the LEO Bill of Rights....
...orida
Statutes (2008), does not apply to internal complaints because the period is
triggered by the receipt of a complaint and “[t]he Migliore court concluded that a
law enforcement’s ‘receipt’ of a complaint, as that language was used in section
112.534,[7] Florida Statutes (1981), meant its receipt of a complaint from a person
outside the agency.” Id. at 494-95.8 The court also explained that PERC lacked
7
This reference to section
112.534 is an apparent scrivener’s error because the
Migliore court was construing the phrase “complaints received by such employing
agency” in section
112.533....
...(1981) (“Every agency
employing law enforcement officers shall establish and put into operation a system
19
jurisdiction to enforce the LEO Bill of Rights because the “enforcement of its
provisions is to be accomplished [under section 112.534(1), Florida Statutes
(2008)] through the circuit court, rather than [PERC].” Id....
...nts. It merely held
that the 180-day period in section
112.532(6)(a), Florida Statutes (2008), does not
apply to internal complaints. Moreover, because McQuade involved an internal
complaint, the fact that the court also stated that the remedy in section
112.534,
Florida Statutes (2008), was available to the officer undercuts the trial court’s
broad reading of the decision. Indeed, the opinion would be internally inconsistent
if it, on one hand, it is read to hold that the LEO Bill of Rights is inapplicable to
internal complaints but, on the other hand, it explained that the remedy in section
112.534, Florida Statutes (2008), was available to the officer in that case who was
the subject of an internal complaint.
We recognize that the McQuade court stated that “Migliore has been cited
for receipt, investigation, and det...
...against him by persons outside the agency which employs him,” id., the court did
not purport to limit the application of any other provision of the LEO Bill of Rights
to external complaints. Indeed, in discussing whether the circuit court had
jurisdiction under section 112.534, Florida Statutes (1981), to review disciplinary
action against the officer, the court explained the operation of that statute without
any suggestion that the statute’s remedy was limited to external complaints. See
id. at 65 (explaining that section 112.534 “operates only to immediately restrain
9
Although the McQuade court’s citation to Kelly was preceded by the “see, e.g.”
indicator, suggesting that there are other cases that stand for the same proposition,
our research fai...
...In sum, neither McQuade, Migliore, nor Kelly stand for the broad
proposition that the LEO Bill of Rights only applies when the officer is under
investigation based upon an external complaint, and to the contrary, the plain
language of sections
112.532 and
112.534 do not limit compliance review hearings
based upon the source of the complaint....
...Furthermore, Officer B would not have been entitled
to a compliance review hearing in any event because (1) the police department’s
failure to immediately provide him a copy of the polygraph results was remedied
before the hearing was requested, see § 112.534(1)(d), Fla....
...MAKAR, J., CONCURS IN PART AND
DISSENTS IN PART WITH OPINION.
24
MAKAR, J. concurring in part, and dissenting in part.
I concur except as to Part II(A) of the majority opinion, which holds that a
compliance review hearing is unavailable under section
112.534, Florida Statutes,
after an agency first provides an investigative report to an officer.
At issue is the remedial scope of section
112.534, which is within the “bill of
rights” for law enforcement and correctional officers. See §§
112.531-535, Fla.
Stat. Section
112.534 reflects an overall purpose of providing law enforcement and
correctional officers under investigation with process and remedies where “official
misconduct” is alleged against their investigators. Portions of section
112.534
support the conclusion that a key purpose of the compliance review process is to
address allegations of intentional violations by investigators discovered before an
investigative report is released and to provide a remedy, such as removing the
investigator. See §
112.534(1)(g), Fla....
...discovered before an investigation is complete, it could have said so; but it has not.
Missing from the legislative mandate that a compliance review panel “shall review
the circumstances and facts surrounding the alleged intentional violation,” see
§ 112.534(1)(d), is statutory language saying that such review may occur only if
“the violation was discovered and alleged during the investigation.” No such
limitation exists. Instead, the language of section 112.534, read in conjunction with
the remainder of the bill of rights, does not prohibit an officer, who first learns of
possible investigative misconduct in such a report, from seeking a compliance
review hearing even though the investiga...
...Because investigations may be continued or reopened under section
112.532(6)(b) if new evidence is discovered, drawing a judicial line at too early a
point could have the unintended effect of depriving officers of remedies
prematurely in some instances.
Given the statute’s remedial nature, the better reading of section
112.534 is
that the compliance review process is available to adjudge claims of intentional
violations if (a) they are discovered before an investigative report is released or, as
is the case here, (b) they could not be discovered prior to...
