       Third District Court of Appeal
                                State of Florida

                         Opinion filed September 3, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D12-3059
                            Lower Tribunal No. 12-1
                              ________________

                               Louis Brennan,
                                    Appellant,

                                        vs.

                                City of Miami,
                                    Appellee.


    On Appeal from the State of Florida, Public Employees Relations
Commission.

      Sheppard, White & Kachergus, P.A. (Jacksonville), and Wm. J. Sheppard,
Elizabeth L. White, Matthew R. Kachergus and Bryan E. DeMaggio, for appellant.

      Victoria Méndez, City Attorney, and John A. Greco, Janeen L. Richard and
Casey P. Cohen, Assistant City Attorneys., for appellee.

Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

      FERNANDEZ, J.

      Louis Brennan appeals a final order from the Public Employees Relations

Commission in which the Commission concluded that appellee City of Miami did
not violate chapter 295, Florida Statutes (2012), when it failed to afford Brennan a

veterans’ preference in promotion and dismissed Brennan’s complaint. We

disagree with this conclusion because Brennan’s failure to submit documentation

to the City of his active duty during wartime did not preclude his entitlement to a

lieutenant’s promotional preference, pursuant to section 295.09, Florida Statutes

(2012), and rule 55A-7.0111, Florida Administrative Code.              Accordingly, we

reverse and remand.

Factual Background

      Brennan is a firefighter employed with the City since 1999. He is a former

United States Marine Reservist who participated in military training for which he

received a DD-214.1 He included this document in his initial employment

application with the City.

      Brennan returned to active duty in 2003. He resumed City employment at

the conclusion of his military service for which he received a second DD-214. He

submitted this document to the City when he returned to work. In 2004, the City

gave Brennan a certificate of appreciation for his military service.

      In 2008, Brennan applied for a promotional position of Fire Lieutenant with

the City. The Register Announcement that established the minimum requirements



1     DD-214 is a document the United States Department of Defense issues
following discharge from military service.

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for the fire lieutenant position listed, in relevant part, the “Veteran’s Preference

Documentation” as follows:

            All DD-214’s or military discharge papers, or equivalent
            certification from the U.S. Department of Veteran’s
            Affairs, which lists the military status, dates of service,
            discharge type, and, if applicable, the combat campaign
            or expedition for which a campaign or expeditionary
            medal was authorized.

            ....

            If an applicant claims veteran’s preference, he or she
            must indicate this on the application form, and all
            required documentation in accordance with Florida
            Statute Section 295 and Florida Administrative Code
            55A-7.013, must be submitted with the application by the
            closing date.

The City’s application for employment contained the following statement:

            YOU MUST SUBMIT A LEGIBLE FORM DD-214
            AND     OTHER   RELEVANT     DOCUMENTS
            CONCERNING ELIGIBILITY FOR VETERAN’S
            PREFERENCE. VETERAN’S PREFERENCE WILL
            BE AWARDED ONLY IF YOU SUBMIT, WITH
            YOUR APPLICATION, A LEGIBLE FORM DD-214
            AND / OR PROOF OF A SERVICE-CONNECTED
            DISABILITY FROM A STATE APPROVED
            AUTHORITY THAT IS LESS THAN ONE YEAR
            OLD.

      Brennan timely submitted his application to the City’s Employment Office.

On his application, he checked a box that indicated that he served on active

military duty during wartime.     He did not submit the DD-214 or any other

documents to claim a preference. At the time of his submission, the employment


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office advised him that he had to submit a DD-214 in support of his employment

application. Brennan, however, could not locate his DD-214. He then went to the

records division of the City’s Human Resources Department and requested a copy

of his DD-214. The Human Resources Department provided him with his 1997

DD-214, which he submitted to the City. At that time, Brennan asked if he needed

to provide any additional documentation, and the employment office advised that

he did not.

      The testing and validation specialist responsible for screening applications

for the fire lieutenant exam subsequently advised Brennan that he was not eligible

for preference because he only submitted his 1997 DD-214 with his application,

which reflected service for training only.2 Brennan did not receive the five

additional points for veterans’ preference.

      Brennan passed the qualifying examination. He later learned that he had not

received any veterans’ preference points.

      a. Proceedings before the Department of Veterans Affairs


      Brennan filed a complaint with the Department of Veterans Affairs in

which he contested his failure to receive five extra points on the fire lieutenant’s

exam. 3 The department found his complaint invalid because he had not appended
2     Brennan’s service during 2003, as documented in the DD-214 issued
subsequent to that service, qualified him for additional preference based on his
wartime service.


                                            4
the 2003 DD-214 to the application in which he claimed veterans’ preference. The

department also concluded that the complaint was premature because everyone

who had been promoted at the time had a higher score than Brennan would have

had if he had been given the five extra points.

      Brennan filed a second complaint with the department. He asserted that he

would have been promoted to lieutenant had he been awarded veterans’ preference

points. The department issued its decision, finding Brennan had a valid complaint,

and concluding that, because the 2003 DD-214 was in the City’s personnel files,

the City should have informed Brennan that his 2003 DD-214 was missing, such

that Brennan could remedy the problem.

      a. Proceedings     before    the   Florida   Public   Employees   Relations
         Commission

      Brennan consequently filed a veterans’ preference complaint with the

Commission in which he alleged that the City erroneously denied him veterans’

preference points in promotion.          The hearing officer disagreed with the

department’s decision and issued a recommended order following a hearing,

concluding that Brennan was not entitled to a veterans’ preference because he did

not submit the proper documentation with his application.          Brennan filed

3     Brennan also filed a grievance pursuant to the collective bargaining
agreement in which he challenged his placement on the Eligibility Roster. The
grievance was settled, whereby the City and the Union agreed to abide by the final
decision of the Department of Veterans Affairs.


                                          5
exceptions to the hearing officer’s recommended order, to which the City

responded.

      The Commission ultimately denied all of Brennan’s exceptions.              The

Commission rejected Brennan’s claim that the Commission’s hearing officer

should have deferred to the findings of the department’s investigator, who found

that the City’s Human Resources Department was obligated to contact him and

provide him an opportunity to supply his missing 2003 DD-214. The Commission

reasoned that its review of investigators’ findings is de novo, and the review

should not be controlled by their findings and conclusions, both factual and legal.

      The Commission also rejected Brennan’s claim that Florida Administrative

Code Rule 55A-7.013, which provides that the applicant claiming preference is

responsible for providing supporting documentation, solely applies to original

appointment and retention, and not to promotion. Brennan argued that the only

statute addressing promotion, section 295, Florida Statutes (2012), and the only

accompanying Department of Veterans Affairs regulation, Florida Administrative

Code Rule 55A-7.0111, do not require veterans to confirm their eligibility with

documentation.    The Commission disagreed, stating, “[t]he Commission has

consistently placed the responsibility for documentation set forth in rule 55A-7.013

to all claims for a veteran’s preference, initial appointments, and promotions

alike.”   Additionally, the Commission accorded “great deference” to the



                                         6
Department of Veterans Affairs’ interpretation of rule 55A-7013 as applying to

promotional preference.

      The Commission further rejected Brennan’s argument that the Department

of Veterans Affairs did not have the authority to make rules that related to

veterans’ preference in promotion, asserting that the Commission was not the

proper venue to contest the Department of Veterans Affairs’ rulemaking authority.

      The Commission denied Brennan’s exception that challenged the hearing

officer’s failure to make additional findings of fact. The Commission explained

that Brennan did not cite to the record in support of the findings he sought to

include, and these additional findings were unnecessary to resolve the case.

      The Commission next rejected Brennan’s claim that the testing and

validation specialist had actual or constructive knowledge of Brennan’s active

wartime duty when she failed to afford him preference points. The Commission

concluded that substantial evidence in the record supported the hearing officer’s

contrary finding. The Commission rejected Brennan’s contention that the City’s

receipt of the 2003 DD-214 contained in Brennan’s personnel file and the

certificate of appreciation Brennan received imputed knowledge of Brennan’s

wartime duty. The Commission stated:

           Holding a large municipal employer responsible for
           knowledge of the existence of all DD-214s in its personnel
           records and affording preference to veterans accordingly is
           not only clearly contrary to rule 55A-7.013(2)’s explicit


                                         7
           designation of the veteran as the party responsible for
           supplying the necessary documentation for any claimed
           preference at the time of making application, but it is also
           patently unreasonable.

       The Commission further dismissed as moot the issue of whether Brennan

should have been appointed lieutenant had he been awarded preference points

because he was not entitled to points due to his failure to provide the 2003 DD-

214.

Standard of Review

       This Court reviews an agency’s statutory interpretation de novo.          See

Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So. 2d 417, 420 (Fla. 1st DCA 2004).

The record is reviewed to determine whether competent and substantial evidence

supports an administrative agency’s decision. § 120.68, Fla. Stat. (2012). See also

Braddock v. Sch. Bd. of Nassau Cnty., 455 So. 2d 394, 396 (Fla. 1st DCA 1984).

Administrative agencies are “afforded wide discretion in the interpretation of a

statute which it is given the power and duty to administer.” Republic Media, Inc.

v. Dep’t of Transp., 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998). “[A] reviewing

court must defer to an agency’s interpretation of an operable statute as long as that

interpretation is consistent with legislative intent and is supported by substantial,

competent evidence.”      Pub. Emp. Relations Comm’n v. Dade Cnty. Police

Benevolent Ass’n, 467 So. 2d 987, 989 (Fla. 1985). If the agency’s interpretation




                                         8
is “within the range of possible and reasonable” interpretations, it is not clearly

erroneous and should be affirmed. See Republic Media, 714 So. 2d at 1205.

Analysis

        The Commission’s final order must be reversed because the record lacks

competent and substantial evidence to support the order.           Furthermore, the

Commission’s interpretation of the statute falls outside the range of possible and

reasonable interpretations, and is clearly erroneous.        More specifically, the

Commission’s decision is inconsistent with state law, the plain language of

applicable law, specific provisions of the Florida Administrative Code, established

principles of statutory interpretation, and the policy underlying veterans’

preference laws. Thus, Brennan was not obligated to submit any documentation to

the City to establish his eligibility for promotion and receive a veterans’ preference

to which he was entitled.

        We first address the policy underlying veterans’ preference laws, which is

unequivocally clear. It is “the policy of this State of Florida that in appreciation

for [veterans’] service to this state and the country, and in recognition of the time

and advantage lost toward the pursuit of a civilian career, veterans . . . shall be

granted preference in employment with the state and political subdivision of or in

the state.” Ch. 98-33, at 244, Laws of Fla. The Florida Supreme Court has stated

that:



                                          9
            The purpose of veterans’ preference acts is sometimes
            said to be to reward those who served their country in
            time of need, and, again, it is stated that such acts are a
            recognition of the qualities and traits developed by
            military service which tend to make of veterans superior
            public servants. But whether such preference is
            considered to be in recompense for the services
            performed and the sacrifices suffered by veterans, or
            whether it is considered to be a legislative recognition of
            the habits of industry, obedience, and fortitude instilled
            by their service on active duty in the armed forces of our
            country, there can be no doubt that the Legislature
            desired the veteran to have the actual benefit of the
            preference granted-either upon his entrance into public
            service or upon his promotion in such service, if a re-
            instated employee-and it is clear that the interpretation
            contended for by the Board would not accomplish the
            legislative purpose. ‘Preference to veterans must be a
            reality. It cannot be made illusory or a mere gesture.’

Yates v. Rezeau, 62 So. 2d 726, 727 (Fla. 1953) (citations omitted).

      It cannot be said that the City’s ordinance can co-exist simultaneously with

the state statute. A county cannot enact an ordinance that conflicts with a state

statute. Phantom of Brevard, Inc. v. Brevard Cnty., 3 So. 3d 309, 314 (Fla. 2008).

Where a municipality is authorized to legislate with the State, “a municipality’s

concurrent legislation must not conflict with state law.” Thomas v. State, 614 So.

2d 468, 470 (Fla. 1993). “When a municipal ‘ordinance flies in the face of state

law’ – that is, cannot be reconciled with state law – the ordinance ‘cannot be

sustained.’” City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924, 928

(Fla. 2013) (citing to Barragan v. City of Miami, 545 So. 2d 252, 255 (Fla. 1989).



                                        10
Such a conflict “comes into play ‘where the local enactment irreconcilably

conflicts with or stands as an obstacle to the execution of the full purposes of the

statute.’” Id. (citing 5 McQuillin Mun. Corp. § 15:16 (3d ed. 2012)).

      The City’s requirement creates a barrier for eligible veterans which is

otherwise non-existent under the state statute. In effect, the City’s requirement

restricts the rights granted to veterans who seek promotional preference and

renders the promotional preference a mere illusion. Thus, the conflict is self-

evident, “flies in the face of state law,” and the ordinance simply cannot stand. Id.

      We agree with Brennan’s argument that rule 55A-7.013 is inapplicable

under the facts of this case. Rule 55A-7.013 addresses veterans’ preference within

the context of appointment and retention, and appointment and retention are not at

issue in the case before us.4 In fact, rule 55A-7.003(10) specifically defines the

term “vacant position” to mean:

4     Rule 55A-7.013 provides in relevant part as follows:

      Documentation of Preference Claim.

      (1) An applicant for a covered position who believes he or she is entitled to
          veterans’ preference in employment shall indicate such preference on the
          application form.

      (2) The applicant claiming preference is responsible for providing required
          documentation at the time of making an application for a vacant
          position, or prior to the closing date of the vacancy announcement.

      (3) The covered employer shall inform applicants of requirements for
          documentation of eligibility for preference.

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            [A] position which the covered employer has announced
            as being open for recruitment and available to all
            applicants. A position that is announced as being open
            to current employees only, to be filled by the
            reassignment, promotion or demotion of an employee
            is not a vacant position for the purpose of this
            chapter.

Fla. Admin. Code R. 55A-7.013 (emphasis added).

      Rule 55A-7.0111, Florida Administrative Code, which implemented section

295.09, Florida Statutes (2012),5 and addresses veterans’ preference in promotion,

governs instead.6


      (4) The covered employer shall determine whether an applicant is eligible
          for veterans’ preference.

      (5) The covered employer shall document the employee’s election of
          veterans’ preference.
5     Section 295.09 provides as follows:

      Reinstatement or reemployment; promotion preference.

      (1)(a) When an employee of the state or any of its political subdivisions
      employed in a position subject or not subject to a career service system or
      other merit-type system, with the exception of those positions which are
      exempt pursuant to s. 295.07(4), has served in the Armed Forces of the
      United States and is discharged or separated therefrom with an honorable
      discharge, the state or its political subdivision shall reemploy or reinstate
      such person to the same position that he or she held prior to such service in
      the armed forces, or to an equivalent position, provided such person returns
      to the position within 1 year of his or her date of separation or, in cases of
      extended active duty, within 1 year of the date of discharge or separation
      subsequent to the extension. Such person shall also be awarded preference
      in promotion and shall be promoted ahead of all others who are as well
      qualified or less qualified for the position. When an examination for

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    Neither is the City’s requirement consistent with rule 55A-7.0111 and
    promotion is utilized, such person shall be awarded preference points, as
    provided in s. 295.08, and shall be promoted ahead of all those who appear
    in an equal or lesser position on the promotional register, provided he or she
    first successfully passes the examination for the promotional position.

    (b) The provisions of paragraph (a) shall also apply to a person who was a
    veteran when employed by the state or its political subdivision and who was
    recalled to extended active duty in the Armed Forces of the United States
    and was discharged or separated therefrom with an honorable discharge.

    (c) The provisions of paragraphs (a) and (b) shall apply only to a veteran’s
    first promotion after reinstatement or reemployment, without exception.

    (2) For the purposes of this section, “extended active duty” means active
    duty, other than for training, beyond the date of honorable discharge or
    separation, due to military requirements.
6   Rule 55A-7.0111 provides as follows:

    Reinstatement or Reemployment; Promotion Preference.

    (1) When an employee in a covered position leaves employment of the state
        or its political subdivisions for the purpose of serving in the Armed
        Forces of the United States and is separated therefrom with an honorable
        discharge, the state or its political subdivision shall reinstate or reemploy
        such person under the following conditions:

          (a) Reinstatement or reemployment is made to the same or to an
              equivalent position.

          (b) Reinstatement or reemployment is made within one year of the
              date of separation from the military service, or, in the case of
              extended active duty, within one year of the date of discharge or
              separation subsequent to the extension.

    (2) Persons reinstated or reemployed under this rule shall be awarded
        preference in promotion, and shall be promoted ahead of all other
        employees who are as well or less qualified for the position. When an
        examination, as defined in Rule 55A-7.003, F.A.C., is utilized, such

                                       13
section 295.09. Nowhere in rule 55A-7.0111 and section 295.09, whose language

is clear and unambiguous, is there a requirement that a veteran submit veterans’

preference documentation, or DD-214 form.            The City’s requirement is also

illogical and duplicative where, as here, the City maintained that documentation on

file.

Conclusion

        Brennan was not required to submit his 2003 DD-214 form with his job

application, pursuant to section 295.09, Florida Statutes (2012), and rule 55A-

7.0111, Florida Administrative Code. We therefore reverse the final order and

remand with instructions that Brennan receive an award of five additional points

on his fire lieutenant exam, and that he be promoted to the position of fire

lieutenant with back pay and benefits from the time his modified test score entitled

him to that position, if he would have otherwise been entitled to such promotion.

           persons shall be eligible for preference points and ranking on the register
           as provided by Rule 55A-7.010, F.A.C., of this chapter. Eligibility for
           preference in promotion shall apply only to a veteran’s first promotion
           after reinstatement or reemployment, without exception.

        (3) If the reinstated or reemployed person is not promoted, the person
           retains promotion preference eligibility until the first promotion
           following reemployment is satisfied.

        (4) Where the reinstated or reemployed person is not promoted and the
            register is vacated to establish a new register for the next promotion, such
            person shall retain eligibility for preference points and ranking on the
            new register as provided by Rule 55A-7.010, F.A.C.


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Reversed and remanded with instructions.




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