Summary
In Miami-Dade County v. Harris, 278 So. 3d 103 (Fla. 3d DCA 2019), Miami-Dade County petitioned for a writ of prohibition, asserting that the circuit court was without jurisdiction to preside over Harris's whistle-blower action because he failed to exhaust administrative remedies.
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No. 3D17-2699
06-26-2019
MIAMI-DADE COUNTY, Petitioner, v. Lamar HARRIS, Respondent.
Abigail Price-Williams, Miami-Dade County Attorney and Leona N. McFarlane, Assistant County Attorney, for petitioner. Kuehne Davis Law, P.A., and Benedict P. Kuehne, and Michael T. Davis, Miami, for respondent.
Abigail Price-Williams, Miami-Dade County Attorney and Leona N. McFarlane, Assistant County Attorney, for petitioner.
Kuehne Davis Law, P.A., and Benedict P. Kuehne, and Michael T. Davis, Miami, for respondent.
Before EMAS, C.J., and LINDSEY, and GORDO, JJ.
Chief Judge Emas and Judge Gordo did not participate in oral argument.
LINDSEY, J.
Miami-Dade County petitions this Court for a writ of prohibition, alleging the circuit court is without jurisdiction to preside over the underlying whistleblower action because Respondent Lamar Harris failed to exhaust administrative remedies. Harris has filed a cross-petition for writ of certiorari, alleging the trial court erroneously denied his motion for reinstatement. Because we conclude that Harris did not exhaust his administrative remedies, we grant the County's petition for writ of prohibition, and we dismiss Harris's cross-petition for certiorari as moot.
I. BACKGROUND
In April 2014, the County's Chief Supervisor of Rail Transportation issued a memorandum to all Metrorail train operators directing them to announce the train line and final destination at each station. In May 2014, a disciplinary action was filed against Harris, who had been employed as a train operator for over nine years, for failing to make the required announcements. Harris told his supervisor the announcements were unsafe, and he a prepared a "Safety Concerns" letter explaining that a train operator could not safely make the required announcements while also monitoring passengers and listening for radio communications.
In August 2014, Harris was suspended for five days for failure to make the announcements. The following month, Harris submitted his Safety Concerns letter to the Florida Department of Transportation ("FDOT"). FDOT conducted an investigation and concluded that Harris's safety concerns "do not represent an immediate, current safety hazard to MDT passengers or employees."
Harris appealed his five day suspension. In July 2015, Harris told his Union representative to cancel his suspension appeal hearing. The case was eventually closed because of Harris's subsequent termination.
In February 2015, independent and unrelated to Harris's failure to make the announcements, Harris was arrested and charged with several crimes. As a result, Harris was automatically suspended on March 31, 2015, and ultimately dismissed from County service on July 17, 2015. Harris appealed his dismissal on July 22, 2015, pursuant to section 2-47 of the Miami-Dade County Code of Ordinances ("County Code"), which governs appeals of adverse personnel actions. Although Harris claims he asked his representative to raise his whistleblower complaint at the administrative hearing, he admits that the whistleblower issue was never considered. On November 5, 2015, the hearing examiner issued his recommendation, concluding that there was just cause to dismiss Harris. On November 24, 2015, Miami-Dade County Mayor Carlos Gimenez sustained the decision and confirmed Harris's dismissal. Harris did not appeal the Mayor's decision.
Section 2-42(22) of the County Code provides "[f]or the automatic suspension of any person from the County service immediately upon ... having an information filed against him by any prosecuting official ...."
On January 25, 2016, Harris filed a whistleblower complaint with the Miami-Dade Commission on Ethics & Public Trust (the "Ethics Commission"). In his complaint, Harris alleged his suspension and dismissal were in retaliation for his Safety Concerns letter. On June 30, 2016, the Ethics Commission dismissed Harris's complaint, finding no probable cause to sustain his whistleblower allegations.
On October 11, 2016, Harris filed a two-count complaint below, alleging (I) that the County violated Florida's "Whistle-blower's Act" when it retaliated against him by suspending him and dismissing him and (II) that the County violated section 2-42(22) of the County Code when it failed to reinstate him after he entered a pre-trial intervention program. On March 31, 2017, Harris filed a motion for temporary reinstatement pursuant to the Whistle-blower's Act's temporary reinstatement provision. See § 112.3187(9)(f), Fla. Stat. (2018). The trial court denied Harris's motion, finding the temporary reinstatement provision did not apply because the County was a municipality. See id. ("This paragraph does not apply to an employee of a municipality.").
Section 2-42(22) provides as follows:
In the event ... a court of competent jurisdiction places the person in a pre-trial intervention program ... the particular person shall be reinstated and entitled to back pay for the period of automatic suspension less any sums earned by the person in any other employment during the period of suspension and less any pay withheld by the County as a result of disciplinary action taken against the person.
The County filed a motion for summary judgment on July 5, 2017, arguing that the trial court does not have jurisdiction over Harris's whistleblower claim (Count I) because Harris failed to exhaust administrative remedies and his claim was untimely as a matter of law. The County also argued that section 2-42(22) of the County Code does not provide a cause of action for reinstatement (Count II). The trial court denied the County's motion, and the County now seeks a writ of prohibition to prevent the trial court from continuing to exercise jurisdiction. Harris cross-petitions for certiorari relief with respect to the denial of his motion for temporary reinstatement.
II. ANALYSIS
At the outset, we recognize that prohibition is an "extraordinary writ" that is "extremely narrow in scope" by which an appellate court "may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction." English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977). Moreover, we also note that "[n]o principle is more firmly established than the requirement that, before resorting to the courts, one must pursue and exhaust any extrajudicial or administrative remedy which may provide the relief sought." Zuniga v. City of Hialeah, 103 So. 3d 988, 990 (Fla. 3d DCA 2012) (quoting City of Miami v. FOP Lodge No. 20, 378 So. 2d 20, 23 (Fla. 3d DCA 1979) ).
Florida's Whistle-blower's Act is intended to "prevent agencies ... from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer ... that create a substantial and specific danger to the public's health, safety, or welfare." § 112.3187, Fla. Stat. (2018). To that end, the Act provides for certain administrative remedies by which a protected employee may seek relief. The following remedies provision is applicable here: "Within 60 days after the action prohibited by this section , any local public employee protected by this section may file a complaint with the appropriate local governmental authority, if that authority has established by ordinance an administrative procedure for handling such complaints ...." § 112.3187(8)(b), Fla. Stat. (2018), (emphasis added); see also Univ. of Cent. Fla. Bd. of Trustees v. Turkiewicz, 21 So. 3d 141, 145 (Fla. 5th DCA 2009) ("[T]he use of the word ‘may’ simply acknowledges that one who has a claim under the Act has the right to pursue a legal remedy or to choose not to pursue a legal remedy.").
Pursuant to the statutory provision above, the County established administrative procedures for handling whistleblower complaints. At the time Harris was dismissed (July 17, 2015), the County Code provided for the following pertinent non-exclusive remedies:
(1) Any employee protected by this division who has the right to file an appeal of an adverse personnel action under Section 2-47 shall also have the right to have the hearing examiner appointed under that section consider the issue of whether the adverse action was in violation of this division. The hearing examiner shall include in his findings of fact and conclusions a determination of whether the adverse action was in violation of this section and shall recommend an appropriate remedy.
....
(4) Investigation by Ethics Commission . In addition to the remedies set forth above.
(a) Any employee protected under this division who alleges retaliation
may, in lieu of or in addition to seeking the relief set forth above, file a written complaint with the Miami-Dade County Ethics Commission alleging a prohibited personnel action, no later than 60 days after the prohibited personnel action.
Miami-Dade Cty., Code of Ordinances § 2-56.28.17 (Apr. 30, 2015) (emphasis added).
Consistent with the Whistle-blower's Act, this version of the County Code provided for a 60-day window from the time Harris was dismissed for him to file his written complaint with the Ethics Commission. Harris filed his whistleblower complaint with the Ethics Commission on January 25, 2016—well beyond 60 days from his July 17, 2015 dismissal. Consequently, Harris's Ethics Commission complaint was untimely, and he therefore failed to exhaust his administrative remedies before bringing his whistleblower action in the circuit court. See Williams v. City of Miami, 87 So. 3d 91, 92 (Fla. 3d DCA 2012) ("Prior to filing suit in circuit court under the Whistle-blower's Act, a plaintiff must first exhaust all administrative remedies." (citing § 112.3187(8)(b), Fla. Stat. (2009) ).
Even if Harris had raised his whistleblower claim at his section 2-47 appeal pursuant to section 2-56.28.17(1), which he did not do, that procedure alone would not have satisfied the statutory requirements of the Whistle-blower's Act. See § 112.3187(8)(b), Fla. Stat. (2015), ("The administrative procedure created by ordinance must provide for the complaint to be heard by a panel of impartial persons appointed by the appropriate local governmental authority."); cf. Williams v. City of Miami, 87 So. 3d 91, 92 (Fla. 3d DCA 2012) ("The Civil Service Board meets the requirement of section 112.3187(8)(b) as the panel before which the administrative hearing must be conducted.).
Harris mistakenly relies on a more recent version of the ordinance under which an employee must exhaust available administrative remedies, including a section 2-47 appeal, before filing a written complaint with the Ethics Commission, and the Ethics Commission complaint must be filed "no later than 60 days after a final written decision regarding an alleged prohibited personnel action has been rendered ...." See Miami-Dade Cty., Code of Ordinances § 2-56.28.17(4)(a) (Mar. 16, 2016) (emphasis added). Based on this version of the ordinance, Harris argues that his Ethics Commission complaint was timely because it was filed within 60 days of a final written decision affirming his termination. But this was not the version in effect at the time of Harris's dismissal. Moreover, by Harris's own admission, he never raised his whistleblower claim at his section 2-47 appeal. So even if the more recent version of the ordinance applied, Harris would still have failed to exhaust his administrative remedies.
The trial court also relies on the more recent version of the ordinance, finding in its order denying the County's motion for Summary Judgment that "[o]n November 24, 2015, Miami-Dade County Mayor Carlos Gimenez sustained the Department's decision and confirmed Harris' July 17, 2015 dismissal. Within 60 days of this final letter, Plaintiff filed a complaint with the Miami-Dade Commission on Ethics and Public Trust on January 25, 2016."
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We also find that Harris failed to exhaust the available administrative remedies with respect to his claim for reinstatement. Although Harris challenged his automatic suspension and dismissal pursuant to section 2-47 of the County Code, he failed to appeal the Mayor's decision. Consequently, the trial court is also without jurisdiction over Count II of Harris's complaint. See City of Miami v. Jean-Phillipe, 232 So. 3d 1138, 1143 (Fla. 3d DCA 2017) ("Where a civil service employee pursues civil service administrative remedies, the employee is precluded from bringing an independent action in Circuit Court to challenge the propriety of the [discipline].... [O]nce the employee submits himself to the administrative review procedures provided by the Ordinance, the employee has been afforded a quasi-judicial hearing and is not entitled to a de novo hearing in Circuit Court on the claim. Instead, the employee must institute an appellate proceeding in the Circuit Court Appellate Division to review the adverse determination. " (quoting Miami-Dade Cty. v. Moreland, 879 So. 2d 23, 24-25 (Fla. 3d DCA 2004) ) (alterations in original)).
III. CONCLUSION
Accordingly, we grant the County's petition but withhold issuance of the writ of prohibition as we are confident that the trial court will dismiss the action for lack of jurisdiction. Further, because Harris's cross-petition for writ of certiorari seeks relief in connection with his whistleblower action, we dismiss Harris's petition as moot.