Opinion
No. 1D21-2083.
02-22-2023
SHERIFF OF BROWARD COUNTY, Appellant, v. INTERNATIONAL UNION OF POLICE ASSOCIATIONS, AFL-CIO, Appellee.
Carmen Rodriguez of the Law Offices of Carmen Rodriguez, P.A., Palmetto Bay; Robert W. Evans , Robert E. Larkin, III , and Howard Waldman of Allen, Norton & Blue, P.A., Tallahassee, for Appellant. Thomas W. Poulton of DeBevoise & Poulton, P.A., Winter Park, for Amicus Curiae Florida Sheriffs Association, in support of Appellant. Gary E. Lippman , International Union of Police Associations, AFL-CIO, Fort Lauderdale, for Appellee. Paul A. Daragjati and Rose R. Daragjati of Paul Daragjati, PLC, Jacksonville, for Amicus Curiae Florida State Lodge Fraternal Order of Police, in support of Appellee.
Carmen Rodriguez of the Law Offices of Carmen Rodriguez, P.A., Palmetto Bay; Robert W. Evans , Robert E. Larkin, III , and Howard Waldman of Allen, Norton & Blue, P.A., Tallahassee, for Appellant.
Thomas W. Poulton of DeBevoise & Poulton, P.A., Winter Park, for Amicus Curiae Florida Sheriffs Association, in support of Appellant.
Gary E. Lippman , International Union of Police Associations, AFL-CIO, Fort Lauderdale, for Appellee.
Paul A. Daragjati and Rose R. Daragjati of Paul Daragjati, PLC, Jacksonville, for Amicus Curiae Florida State Lodge Fraternal Order of Police, in support of Appellee.
Per Curiam.
The Sheriff of Broward County appeals a final order of the Public Employees Relations Commission ("PERC") finding that the Sheriff unlawfully retaliated against Deputy Jeffery Bell for protected conduct, in violation of section 447.501(1)(a) and (1)(b), Florida Statutes. Deputy Bell—who at the time served as Appellee's president —engaged in a public campaign advocating for the Sheriff to provide greater COVID-19 protective measures early in the pandemic. This advocacy included public criticism of the Sheriff's allegedly inadequate response to officer concerns over a lack of personal protective equipment. Appellee's unfair labor practice charge alleged that, in retaliation for the deputy's advocacy, the Sheriff launched an internal investigation, which occasioned Deputy Bell's suspension with pay as well as a number of other restrictions on his work-related activity pending the outcome of the investigation.
While the investigation was still open, PERC held a hearing on the charge. Following the hearing, the hearing officer issued a recommended order finding that the Sheriff unlawfully initiated the internal investigation of Deputy Bell in retaliation for the latter's protected pandemic-related advocacy. The recommended order directed, inter alia, that the Sheriff rescind its suspension of the deputy. PERC subsequently issued the final order at issue in this appeal, which adopted the hearing officer's recommendation that the suspension be rescinded. The final order also awarded Appellee its attorney's fees, pursuant to section 447.503(6)(c), Florida Statutes.
Pursuant to the parties' collective bargaining agreement and the Sheriff's Policy and Procedures Manual, the paid suspension was a secondary consequence of the internal investigation. Therefore, the Sheriff sought clarification from PERC as to whether the final order necessarily required the termination of the internal investigation as well. PERC denied the motion for clarification. The Sheriff appealed, and then moved PERC to stay the final order pending resolution of the appeal. PERC denied the stay.
The Sheriff then moved this Court to review PERC's order denying a stay, expressly asserting that if a stay were granted, he would proceed with the internal affairs investigation of Deputy Bell and related proceedings. The Sheriff argued that Deputy Bell would not be prejudiced by the continuation of the investigation and any subsequent action. Appellee vigorously opposed such a stay. We entered a stay of PERC's final order. Appellee later moved to vacate the stay, and we denied that motion.
The relief the Sheriff sought in this appeal was a reversal of PERC's final order so that the internal investigation of Deputy Bell could proceed to its conclusion. However, because we granted a stay of the final order, the investigation proceeded, has concluded, and Deputy Bell's employment was terminated. We have no information about whether Deputy Bell has pursued further review of the actions taken after we stayed PERC's final order. The merits of this appeal are now moot and we dismiss it. See Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) ("An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.").
With respect to fees, section 447.503(6)(c), Florida Statutes, provides that "[PERC] may award to the prevailing party all or part of the costs of litigation, reasonable attorney's fees, and expert witness fees whenever the commission determines that such an award is appropriate." Such awards are reviewed for abuse of discretion. Grapski v. City of Alachua, 134 So.3d 987, 989 (Fla. 1st DCA 2012). We find no abuse of discretion in PERC's award of fees and costs for the part of the dispute that was then before PERC and in which Appellee prevailed. We affirm the award of fees. We note that neither party filed a motion for appellate attorneys' fees, so neither is entitled to claim or receive such fees. Webber v. State, Dep't of Bus. & Prof'l Regul., 198 So.3d 922, 923 (Fla. 1st DCA 2016) (noting that Florida Rule of Appellate Procedure 9.400(b)(2) requires a separately filed motion for appellate fees, failing which no such fees can be awarded).
DISMISSED in part, AFFIRMED in part.
Winokur and M.K. Thomas, JJ., concur; Kelsey, J., concurs with opinion.
Kelsey, J., concurring.
I have strong reservations about the propriety of this Court's earlier orders granting a stay of the PERC final order pending completion of the appeal, and then declining to vacate the stay when Appellee plainly highlighted the Catch-22 a stay created. A stay pending appeal is supposed to maintain the status quo. QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc., 94 So.3d 541, 555 (Fla. 2012) ("The purpose of an appellate stay is to maintain the status quo in the lower tribunal while an appeal proceeds."). The opposite happened here, as Appellee vigorously and correctly argued. I do not believe the motions panels that first granted a stay, and then denied the motion to vacate it, envisioned or intended to cause this procedural result of mooting the appeal.