Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: APPELLATE PROCEDURE – improper relief – where Sheriff’s Civil Service Board elected to contract with Department of Administrative Hearings to conduct disciplinary hearings, provisions of Administrative Procedures Act governed judicial review of administrative decision – APA requires review by direct appeal to district court rather than petition for certiorari in circuit court. Petition dismissed for lack of jurisdiction. Bradshaw v. Pinellas County Sheriff’s Civil Service Board, No. 08-000030-88B (Fla. 6th Cir. App. Ct. February 24, 2010).
NOT
FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
JOHN BRADSHAW,
Petitioner,
vs. Appeal
No.: 08-000030AP-88B
UCN: 522008AP000030XXXXCV
PINELLAS COUNTY SHERIFF’S
CIVIL SERVICE BOARD,
Respondent.
__________________________________/
THIS
CAUSE is before the Court on the Petition for Writ of Common-Law Certiorari
from the Pinellas County Sheriff’s Civil Service Board. The Petitioner, John Bradshaw (“Petitioner”
or “Bradshaw”), seeks review of a Final Order by the Respondent, Pinellas
County Sheriff’s Civil Service Board (“Respondent” or “Board”), that imposed
disciplinary action on Bradshaw for alleged violations of policies and
procedures of the Pinellas County Sheriff’s Office (“PCSO”). Upon review of the briefs and the record and
being fully advised otherwise, the Court finds that the Petition must be
dismissed.
The record reveals that
Bradshaw is a law enforcement deputy employed by the Pinellas County Sheriff’s
Office. On September 22, 2006, Bradshaw
was involved in an automobile accident while on duty in Pinellas County.
By inter-office
memoranda dated August 10, 2007, Pinellas County Sheriff Jim Coats (“Sheriff”) suspended
Bradshaw for four days for a violation of PCSO General Order 3-1.3 Rules and
Regulations; 3.3 Knowledge, and Obedience to, Laws and Rules and Regulations;
and 3.4(d) Performance of Duty.
Specifically, the Administrative Investigations Division, Inspections
Bureau of the PCSO, concluded in its investigation:
While engaged in a high speed pursuit, [Bradshaw] ran a red light at a
minimum speed of 57 miles per hour and collided with a civilian vehicle which
had already entered the intersection.
Serious injuries were sustained by both drivers and a passenger in the
civilian vehicle.
Bradshaw served his suspension on August 23 through 26, 2007.
Thereafter, Bradshaw and
the Pinellas Lodge No. 43, Fraternal Order of Police[1] filed
a Petition for Permanent Injunctive Relief in the Circuit Court in and for
Pinellas County, Florida, Case No.: 07-010513-CI-13, seeking permanent
injunctive relief pursuant to the Florida Police Officer’s Bill of Rights, Florida
Statutes § 112.534. Petitioners sought to
enjoin the PCSO from imposing the disciplinary action for failure to comply
with § 112.532(6)(a), which provides in pertinent part:
Except as provided in this subsection, disciplinary action . . . may not be undertaken by an agency against a law enforcement officer or correctional officer for any act, omission, or other allegation of misconduct if the investigation of such allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct.
Id. Petitioner
also sought rescission of the discipline by the PCSO for this violation.
Respondent PCSO filed a
motion to dismiss the Petition on the grounds that the only remedy afforded by
§ 112.534 is injunctive relief, and it does not create a right to injunctive
relief in the form of overturning discipline.
City Miami v. Cosgrove, 516 So. 2d 1125 (Fla. 3d DCA 1987); Migliore
v. City of Lauderhill, 431 So. 2d 986 (Fla. 1983) (adopting Migliore v.
City of Lauderhill, 415
So. 2d 62, 65 (Fla. 3d DCA 1982)). Respondent further argued that injunctions can
only restrain the commission of future injury and cannot prevent what has already
occurred. After hearing, the Circuit
Court agreed and entered an Order Granting Respondent’s Motion to [Dismiss]
with Prejudice, citing to Quadomain Condo. Ass’n, Inc. v. Pomerantz, 341
So. 2d 1041, 1042 (Fla. 4th DCA 1977), and City of Coral Springs v. Florida
Nat’l Props., 340 So. 2d 1271,
1272 (Fla. 4th DCA 1976).
Contemporaneously with the action in Circuit
Court, Bradshaw filed an appeal of his discipline to the Division of
Administrative Hearings (“DOAH”). The
matter was assigned to an Administrative Law Judge (“ALJ”). As stated by the ALJ, the only two issues for
determination were whether Bradshaw engaged in conduct prohibited by the rules
promulgated by the PCSO, and if so, whether the disciplinary action taken
against Bradshaw was consistent with action taken against other members of the
Sheriff’s Office.
The ALJ conducted a final hearing on January
31, 2008, and issued a Recommended Order on April 18, 2008. Addressing first Bradshaw’s 180-day
requirement for the completion of the investigation, the ALJ rejected
Bradshaw’s argument that the 180-day period began on August 10, 2007, the date
of the accident. Rather, the ALJ
determined that the 180-day period began on December 13, 2006, when the PCSO
received notice of Deputy Bradshaw’s excessive speed from Lt. Pelella’s crash
reconstruction report. The operative
date is immaterial, as the ALJ used the later date in its computation and still
determined that the investigation was not completed within 180 days as required
by Florida Statutes § 112.532. However,
the ALJ also concluded that the exclusive remedy for a violation of the
180-requirement is an injunction issued by Circuit Court, rather than seeking a
relief through administrative action.
Upon consideration of the evidence, the ALJ
found that the PCSO proved by a preponderance of the evidence that Bradshaw
violated Sections 3.3 and 3.4(d) of PCSO’s General Order 3-1[2] and
General Order 15-2[3]
by failing to drive with due regard for the safety of all persons.
The ALJ further found that the disciplinary
action taken was reasonable and consistent with the disciplinary actions taken
against other members of the PCSO. The
PCSO acknowledged that the usual procedure following a crash is a review of the
matter by the Pursuit Review Board and the Crash Review Board, but this crash
was investigated by the PCSO’s Administrative Investigations Division and
presented to the Administrative Review Board, ostensibly because of the
seriousness of the crash. The ALJ found
that, although the record demonstrated no previous incidents involved “similar”
circumstances or would otherwise warrant similar punishment, the discipline
imposed on Bradshaw was commensurate with the degree of his deviation from his
duty to drive with due regard for the safety of all persons. In short,
the ALJ concluded that “the disciplinary action taken against Deputy Bradshaw
was reasonable and consistent with the disciplinary action taken against other
members of the Sheriff’s Office.”
Bradshaw filed timely Exceptions to the ALJ’s
Recommended Order, asserting that the ALJ erred in finding that the Circuit
Court had exclusive jurisdiction to consider the 180-day limitation rather than
allowing him to raise it in the administrative proceeding. More specifically, Bradshaw argued that
without any legal remedy to address the 180-day rule violation, he was deprived
of due process that is guaranteed to him by the Police Officer’s Bill of
Rights, Florida Statutes § 112.532(6)(a).
By his argument, the section operates as a bar to agency discipline, and
after 180 days passed from the time the PCSO learned of the alleged misconduct,
it was without jurisdiction to discipline Bradshaw.
The PCSO filed a response in support of the
ALJ’s decision. Although the PCSO
acknowledged the ALJ’s finding that the PCSO failed to administer the
discipline with a 180-day time frame, it again argued that a Circuit Court
injunction is the exclusive remedy for violations of the Police Officer’s Bill
of Rights; injunctive relief in the form of a reversal of the discipline could
not be sought through the administrative proceedings; and the ALJ’s decision
was correctly based on statutory language and relevant case law interpreting
the statute. According to the PCSO,
Bradshaw was afforded due process, i.e., injunctive relief from the Circuit
Court, but he simply failed to take advantage of that opportunity within the
time that it was available to him.
A quorum of four out of five members of the
Board conducted a hearing on the matter on June 9, 2008. By a vote of 2-2, the Board was unable to
reach a majority decision with respect to adopting, rejecting, or modifying the
ALJ’s findings of fact, conclusions of law, and recommended penalty. Thus, in its Final Order rendered on June 12,
2008, the Board sustained the PCSO’s personnel action in accordance with § 8(6)
of the Special Act[4]
because the Board was unable to reach a majority decision. The Board’s Final Order advised:
The parties are hereby notified of the right to appeal this Final Order
to the Second District Court of Appeal by filing notice of intent to do so upon
the Clerk of the Court and the Pinellas County Sheriff’s Civil Service Board
within thirty (30) days of the date of this Order in accord with Fla. Stat. §
120.68 and the Florida Rules of Appellate Procedure.
Instead of filing an appeal to the Second District Court of Appeal, Petitioner
commenced this action by filing a Petition for Writ of Common-Law Certiorari
from the Pinellas County Sheriff’s Civil Service Board, asking this court to review
and overturn the Board’s Final Order and rescind the disciplinary action
imposed on him.
Sitting in its appellate capacity and
conducting certiorari review of the Board’s actions, the Circuit Court must
consider (1) whether the Petitioner was afforded procedural due process; (2)
whether the essential requirements of law were observed; and (3) whether the
administrative order is supported by competent substantial evidence. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla.
1995). “[T]he circuit court functions as an appellate
court, and, among other things, is not entitled to reweigh the evidence or substitute its judgment for that of the agency.”
Id.; see also County of Volusia v. City of Deltona,
925 So. 2d 340 (Fla. 5th DCA 2006).
Petitioner asserts that the Board departed
from an essential requirement of law by adopting the Recommended Order of the
DOAH, which concluded incorrectly that injunctive relief granted by the Circuit
Court is the exclusive remedy for noncompliance with § 112.532(6)(a). According to Petitioner, the lack of any
legal remedy to address the 180-day violation is a deprivation of due process
afforded to him by the Police Officer’s Bill of Rights. Petitioner again argues that § 112.532(6)(a)
operates as a statute of limitation that divests the PCSO of jurisdiction to
impose discipline against him; that the ALJ erred when he opined that he lacked
jurisdiction to rescind the discipline; and that the Board erred by adopting
the Recommended Order.
The Respondent filed the instant Motion to
Dismiss Petition for Writ of Certiorari for lack of jurisdiction. It argues that the Circuit Court lacks
original jurisdiction to review the Board’s Final Order by certiorari, and instead
judicial review of the Final Order must be raised as a direct appeal to the
Second District Court of Appeal in accord with the Special Act, the
Administrative Procedure Act (“APA”), and the Florida Rules of Appellate
Procedure.
Florida Rules of Appellate Procedure
9.030(c)(3) and 9.100(c)(2) grant the Circuit Courts original jurisdiction to
issue writs of certiorari and to “review quasi-judicial action of agencies,
boards, and commissions of local government, which action is not directly
appealable under any other provision of general law but may be subject to
review by certiorari.” Id. The APA provides: “A party who is adversely affected by final agency action is
entitled to judicial review. . . . Judicial review shall be sought in the
appellate district where the agency maintains its headquarters or where a party
resides or as otherwise provided by law.” § 120.68, Fla. Stat. The act defines “agency” as “[e]ach officer and
governmental entity in the state having jurisdiction in one county or less than
one county, to the extent they are expressly made subject to this act by
general or special law or existing judicial decisions.” §
120.52(1)(c),
Fla. Stat.
Section 12 of the Special Act exempts the
actions of the Board and the Sheriff from the APA unless they elect to proceed
under § 11(8), which allows the Board to elect to contract with the DOAH to
have the hearing conducted before an ALJ pursuant to the APA. Here, the Board has elected to proceed under
§ 11(8) by contracting with the DOAH to have ALJs conduct hearings. Therefore, the provisions of the APA apply
and govern judicial review of Board decisions.
In response, Bradshaw argues
that the Board is not an “agency” governed by the APA because the Board is not
“expressly made subject” to the
act. According to Bradshaw’s
interpretation of the Special Act, § 11(8) only speaks to the “limited
authority” to contract with the DOAH. Bradshaw
relies on Booker Creek Preservation, Inc. v. Pinellas Planning Council,
433 So. 2d 1306 (Fla. 2d DCA 1983), for the proposition that an intra-county
organization created by special act of the legislature, such as the Pinellas
Planning Council in that case, is not an agency subject to the APA where no
general or special law or existing judicial decision makes it so. However, in contrast to Booker Creek, the plain language of Special
Act § 12, coupled with § 11(8) and the Board’s election to contract with the
DOAH to conduct hearings, clearly place the actions of the Board and the
Sheriff within the provisions of the APA.
Given the applicability of the APA to the
Board’s disciplinary action taken against Bradshaw, § 120.68 provides that
Bradshaw was entitled to judicial review by direct appeal to the Second
District Court of Appeal rather than by petition for writ of certiorari to this
Court. Therefore, in accordance with
Rules 9.030(c)(3) and 9.100(c)(2) of the Florida Rules of Appellate Procedure
and the Administrative Procedures Act, this Court lacks jurisdiction to review
the Board’s adverse decision and to reverse the disciplinary action.[5]
Accordingly, it is
ORDERED AND ADJUDGED that the Motion to Dismiss Petition for Writ of Certiorari is granted, and the Petition for Writ of Common-Law Certiorari from the Pinellas County Sheriff’s Civil Service Board is dismissed for lack of jurisdiction.
DONE
AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, this ________
day of February 2010.
Original order entered on February 24, 2010 by Circuit
Judges Amy M. Williams,
Peter Ramsberger, and Mark I. Shames.
Copies furnished to:
KENNETH J. AFIENKO, ESQUIRE
Kenneth J. Afienko, P.A.
560 1st Avenue North
St. Petersburg, FL 33701
Attorney for the Petitioner
SUZANNE M. MUCKLOW, ESQUIRE
Office of the County Attorney
315 Court Street
Clearwater, FL 33756
Attorney for Respondent
[1]The parties in that action stipulated to the dismissal of the Fraternal Order of Police as a Petitioner for lack of standing.
[2]These sections provide:
3.3. Knowledge of, and Obedience to, Laws and
Rules and Regulations – Every deputy is required to establish and maintain a
working knowledge of all laws and ordinances in the county. All members shall observe and obey all General
Orders, Procedures and Rules and Regulations issued by the Sheriff’s
Office. In the event of improper action
or breach of discipline, it will be assumed the member was familiar with the
applicable law, policy, or procedure.
3.4. Performance of Duty – All personnel shall
take appropriate action to preserve the peace and perform their duties as
required or directed by law, agency rules, policies and procedures, or other
lawful orders of a supervisor.
[3]Section 15-2.1(D)
establishes guidelines for a deputy’s operation of a vehicle during a pursuit,
and it specified that its provisions “shall not relieve the driver from the
duty to DRIVE WITH DUE REGARD FOR THE SAFETY OF ALL PERSONS, nor shall
such provisions protect the driver from the consequence of his or her reckless
disregard for the safety of others.” (emphasis in the original).
[4]Ch. 89-404, Laws of Fla., amended by Ch. 90-395, Laws of Fla.
[5]Upon this conclusion, the Court does not address whether the PCSO, rather than the Board, is the proper party respondent.