       Third District Court of Appeal
                               State of Florida

                         Opinion filed March 16, 2016.

                               ________________

                                No. 3D10-2704
                    Lower Tribunal Nos. 09-40869, 09-46161
                              ________________


                         Freddy D'Agastino, et al.,
                                   Appellants,

                                       vs.

                         The City of Miami, et al.,
                                   Appellees.



     An Appeal from the Circuit Court for Miami-Dade County, Amy Steele
Donner, Judge.

      Ronald J. Cohen (Fort Lauderdale), for appellants.

      Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney;
Charles C. Mays; Weiss Serota Helfman Cole & Bierman, P.L., and John J. Quick,
for appellees.


Before WELLS, SHEPHERD, and ROTHENBERG, JJ.

      SHEPHERD, J.

         ON MOTION FOR REHEARING AND CERTIFICATION
      Appellant’s motion for rehearing and for certification are denied. On our

own motion, however, we withdraw our previous opinion issued on January 23,

2013, and substitute the following corrected opinion for the original.

      This is an appeal from a final judgment entered on cross motions for

summary judgment.       Appellants contend, as they argued below, that section

112.533(1), Florida Statutes (2007), provides the exclusive means to investigate

allegations of police misconduct, and the City of Miami Ordinance creating a

Civilian Investigative Panel (CIP) to oversee the sworn police department directly

conflicts with the statute and therefore must fall. For the reasons set forth below,

we disagree.

               FACTUAL AND PROCEDURAL BACKGROUND

      This case arises out of a civilian complaint lodged with the CIP that alleged

professional misconduct during a traffic stop conducted by City of Miami Police

Lieutenant Freddy D’Agastino.       After the City of Miami Police Department

concluded its investigation,1 the CIP subpoenaed Lieutenant D’Agastino to testify

before its Complaint Committee regarding the allegations. In response, Lieutenant

D’Agastino filed a petition in the trial court seeking to quash the subpoena and

obtain a protective order against his having to testify. He alleged that section


1 The Internal Affairs department ultimately determined the allegations in the
complaint were “inconclusive.”

                                          2
112.533(1) granted the police department exclusive authority to investigate

allegations of police misconduct. Section 112.533(1)(a) provides: “Every law

enforcement agency . . . shall establish and put into operation a system for the . . .

investigation . . . of complaints received by such agency from any person, which

shall be the procedure for investigating a complaint against a law enforcement . . .

officer . . . notwithstanding any other law or ordinance to the contrary.” (emphasis

added).

      The City of Miami intervened, and was served separately with a declaratory

action by the Fraternal Order of Police seeking to declare unconstitutional those

ordinances empowering the CIP to investigate the City’s law enforcement officers.

The CIP, in turn, joined that action. The two cases ultimately were consolidated

and each party moved for summary judgment. The trial court granted the motions

filed by the City and the CIP, relying upon Timoney v. City of Miami Civilian

Investigative Panel, 990 So. 2d 614 (Fla. 3d DCA 2008). Appellants contend

Timoney is distinguishable and that Demings v. Orange County Citizens Review

Board, 15 So. 3d 604 (Fla. 5th DCA 2009), controls.

                              SCOPE OF REVIEW

      The City of Miami is a municipality located in Miami-Dade County.

Miami-Dade County is a constitutionally authorized home rule county, created

pursuant to an amendment to the Florida Constitution, adopted at the general



                                          3
election held on November 6, 1956. See Article VIII, §6(e), Fla. Const. (1968),

incorporating Article VIII, §11, Fla. Const. (1885). Pursuant to this constitutional

provision, Miami-Dade County is authorized to create, abolish or modify the

boundaries of all municipal corporations, and provide the method by which each

municipal corporation “shall have the power to make, amend or repeal its own

charter,” Art. VIII, §11(c), (g), Fla. Const. (1885), provided, however, that

“Nothing in this section shall limit or restrict the power of the Legislature to enact

general laws which shall relate to Dade County . . . or to any municipality in Dade

County.” Art. VIII, §11(5), Fla. Const. (1885). This section of Article VIII of the

Florida Constitution of 1885 further provides, “[N]or shall the charter of any

municipality in Dade County conflict with this Constitution or any such applicable

general law.”    Id.   The next section of Article VIII, section 11 of the 1885

Constitution repeats these admonitions. Art. VIII, §11(6), Fla. Const. (1885).

Finally, although the chief purpose of Article VIII, section 11 of the 1885

Constitution was to authorize Miami-Dade County to adopt a home rule charter of

its own, the legislature and electors of the state recognized that these admonitions

would apply to municipal ordinances as well. See Article VIII, § 11(9), Fla. Const.

1885 (“[I]t is further declared to be the intent of the Legislature and of the electors

of the State of Florida that the provisions of this Constitution and general laws

which shall relate to Dade County … or to any municipality in Dade County …



                                          4
enacted pursuant thereto by the Legislature shall be the supreme law in Dade

County, Florida.”).   We accordingly restrict our review to a determination of

whether the CIP investigation conflicts with general law.

                                   ANALYSIS

      In 2001, the City of Miami Charter was amended to include a mandate that

the city commission create a civilian investigative panel to oversee the sworn

police department.    City of Miami Charter, § 51.          The following year, the

commission approved an ordinance creating the CIP in accordance with the

Charter’s mandate.    Its express purpose is to “[a]ct as independent civilian

oversight of the sworn police department.” Miami, Fla., Code art. II, § 11.5-27(1)

(2002).   In furtherance of this purpose, the CIP is authorized to “[c]onduct

investigations, inquiries and public hearings to make factual determinations, [and]

facilitate resolution and propose recommendations to the city manager and police

chief regarding allegations of misconduct by any sworn [police] officer.” Id.

Particularly at issue is the CIP’s subpoena power, through which it can compel a

sworn police officer or other witness to testify before it.       Id. at § 11.5-32.

Lieutenant D’Agastino contends the Police Officers’ Bill of Rights (PBR), set forth

under sections 112.532-533 of the Florida Statutes, provides the sole procedure for

investigating police misconduct. To the extent the City charged the CIP with




                                         5
investigatory power, he argues it directly conflicts with the statute and is therefore

expressly prohibited.

      A side-by-side comparison of the two laws reveals the pertinent provisions

to be as follows:

      § 112.533, Fla. Stat. (2007)                  Art. II, § 11.5-27
       Receipt and processing of               Purposes, powers and duties.
             complaints.—
                                          The purpose, powers and duties of the
(1)(a) Every law enforcement agency CIP are to:
and correctional agency shall establish
and put into operation a system for the (1) Act as independent civilian oversight
receipt, investigation, and determination of the sworn police department;
of complaints received by such agency
from any person, which shall be the . . . .
procedure for investigating a complaint
against a law enforcement and (5) Conduct investigations, inquiries
correctional officer and for determining and public hearings to make factual
whether to proceed with disciplinary determinations, facilitate resolution and
action or to file disciplinary charges, propose recommendations to the city
notwithstanding any other law or manager and police chief regarding
ordinance to the contrary.                allegations of misconduct by any sworn
                                          officer of the city police department;
....
                                          ....
(b)1. Any political subdivision that
initiates or receives a complaint against (9) Make recommendations as to the
a law enforcement officer or disposition of alleged incidents of
correctional officer must within 5 police misconduct, to which the police
business days forward the complaint to chief is required to respond within 30
the employing agency of the officer days[.]
who is the subject of the complaint for
review or investigation.

2. For purposes of this paragraph, the
term “political subdivision” means a
separate agency or unit of local


                                          6
government created or established by
law or ordinance and the officers
thereof and includes, but is not limited
to, an authority, board, branch, bureau,
city,     commission,       consolidated
government,      county,     department,
district,   institution,    metropolitan
government,      municipality,    office,
officer, public corporation, town, or
village.

      A brief perusal of these provisions makes clear the PBR does not purport to

expressly preempt other investigative bodies or means of oversight. Lieutenant

D’Agastino concedes as much. Thus, we proceed to our next task, a determination

whether the CIP “conflicts” with the PBR.

      Conflict between legislative provisions is said to exist “if, in order to comply

with one provision, a violation of the other is required.” Jordan Freewill Baptist

Church v. Dade County, 334 So. 2d 661, 664 (Fla. 3d DCA 1976). Some federal

courts have further refined the inquiry to ask whether the local action ‘frustrates

the purpose’ of a state statute. See e.g., Bravman v. Baxter Healthcare Corp., 842

F. Supp. 747, 753 (S.D.N.Y. 1994); see also Hines v. Davidowitz, 312 U.S. 52, 67

(1941). One of our colleagues has urged the explicit recognition and use of this

test in our state district courts of appeal, suggesting that it has been impliedly used

in his court already. See Judge James R. Wolf and Sarah Harley Bolinder, “The

Effectiveness of Home Rule: A Preemption and Conflict Analysis,” 83 Fla. Bar

Jnl, 92, 93 (June 2009) (citing City of Jacksonville v. American Environmental


                                            7
Services, Inc., 699 So. 2d 255 (Fla. 1st DCA 1997)). Other courts ask simply

whether the provisions can “co-exist.” Phantom of Brevard Cnty., Inc. v. Brevard

Cnty., 3 So. 3d 309, 315 (Fla. 2008) (“There is conflict between a local ordinance

and a state statute when the local ordinance cannot coexist with the state statute.”).

In reality, these so-called “tests” are just diagnostic tools available to assist our

decision-making. Under all of them, our proper role is to harmonize and give full

effect to both legislative prerogatives if we can.      See City of Hollywood v.

Mulligan, 934 So. 2d 1238, 1244-45 (Fla. 2006) (“When possible, ‘we must give

full effect to all statutory provisions and construe related statutory provisions in

harmony with one another.’”) (quoting Clines v. State, 912 So. 2d 550, 557 (Fla.

2005)). Mindful of this guidance and the limited scope of our review, we have

little difficulty finding the provisions of the CIP and the PBR to be readily

reconcilable.

      The City Charter and the CIP’s enabling ordinance clearly establish the CIP

acts independently of the police department and other city officials. City of Miami

Charter § 51(E)(1); Miami, Fla., Code, art. II, § 11.5-27.        Indeed, the CIP’s

independence is central to its purpose, as expressed by its mandate: to provide

“independent civilian oversight of the sworn police department.” City of Miami

Charter § 51 (emphasis added).




                                          8
      The CIP is granted limited power to act in response to its investigations, and

may only propose recommendations to the City Manager or Police Chief. City of

Miami Charter § 51(E)(1)–(3); Miami, Fla., Code, art. II, § 11.5-27. The CIP has

no management authority over City police officers. It cannot discipline, suspend,

demote, discharge, or transfer city police officers. Management decisions as a

result of police misconduct are reserved to city police administrators, in keeping

with the structure of the PBR. Indeed, the CIP ordinance provides that “[p]olicies

and procedures shall be established to ensure compliance with Chapters 112 and

119 of the Florida Statutes and any other applicable laws.” Miami, Fla., Code, art.

II, § 11.5-33(e) (2002).

      Additionally, the City Charter provides the CIP “shall not interfere with any

pending or potential criminal investigation or prosecution.” City of Miami Charter

§ 51(D). The CIP ordinance further dictates the CIP shall “[e]xercise its powers so

as to not interfere with any ongoing investigations and conduct its activities

consistent with applicable law . . . and labor contracts.” Miami, Fla., Code, art. II,

§ 11.5-27(2). To that end, the CIP is restricted from investigating a complaint until

“after determination by its independent counsel, who shall be required to consult

with the appropriate prosecutorial agencies, [so] that an investigation will not

interfere with any pending criminal investigation.” Miami, Fla., Code, art. II, §

11.5-31(2)(a). Finally, the Ordinance provides that “[a] decision of the CIP to



                                          9
proceed with an investigation may be challenged by any agency engaged in such

investigation or prosecution by seeking judicial order in law or equity in a court of

competent jurisdiction,” and that “[w]ritten notification of such challenge to the

CIP shall stay the investigation for 48 hours permitting the agency to obtain such a

judicial order.” Id.

      In contrast, the PBR creates a process for internal investigations by the

police department to determine whether to proceed with disciplinary charges. To

this end, section 112.532(1) of the Florida Statutes (2007), provides:

      (1) RIGHTS OF LAW ENFORCEMENT OFFICERS AND
      CORRECTIONAL               OFFICERS         WHILE         UNDER
      INVESTIGATION.—Whenever a law enforcement officer or
      correctional officer is under investigation and subject to
      interrogation by members of his or her agency for any reason that
      could lead to disciplinary action, suspension, demotion, or
      dismissal, the interrogation must be conducted under the following
      conditions. . . .

(emphasis added). The rights provided under this provision are limited to instances

of investigation and interrogation by members of the officer’s employing law

enforcement agency.      This provision makes no reference to external citizen

investigations, and therefore does not apply in that context.

      Section 112.533(1)(a) provides:

      Every law enforcement agency and correctional agency shall establish
      and put into operation a system for the receipt, investigation, and
      determination of complaints received by such agency from any
      person, which shall be the procedure for investigating a complaint
      against a law enforcement and correctional officer and for


                                         10
      determining whether to proceed with disciplinary action or to file
      disciplinary charges, notwithstanding any other law or ordinance to
      the contrary.

(emphasis added). The Appellants urge a reading of section 112.533(1)(a) that

would vest law enforcement agencies with the exclusive authority to investigate

any complaint against their sworn officers. The City, to the contrary, reads section

112.533(1) to apply only to employee discipline. It urges that section 112.533(1)

does not preclude the formation of an independent and external citizens review

panel, such as the CIP, to investigate alleged police misconduct and make

proposed recommendations. We believe the City has the better argument. The

absence of any authority granted to the CIP to make the sort of police management

decisions addressed in Chapter 112, or to affect the obligations that chapter

imposes on the Miami Police Department and its investigators, makes manifest the

absence of a conflict between the CIP ordinance and Chapter 112.

      Appellants, Lieutenant D’Agastino and the Fraternal Order of Police urge us

to follow the rationale outlined in Demings, supra. There, the Orange County

Sheriff and one of his deputies challenged the authority of Orange County’s CIP

equivalent, the Citizen’s Review Board (“CRB”), to subpoena deputies or

otherwise investigate civilian complaints of excessive use of force by the

department’s sworn deputies.         Noting the Orange County Sheriff is a

constitutionally elected officer possessed of a portion of the sovereign power of the



                                         11
state, the Fifth District Court of Appeal, in the decisive holding in the case,

determined the Sheriff could not be required to account for his activities to a

locally-created board. The court explained:

        As an independent constitutional officer, the Sheriff does not derive
        his authority from the County’s charter or the board of county
        commissioners, and is neither generally accountable to the Board for
        his conduct in office nor subject to the board’s direction in the
        fulfillment of his duties. Art. VIII, § 1(d), Fla. Const. In the event of
        misconduct or misfeasance by the Sheriff, it is Florida’s governor who
        is authorized to suspend the Sheriff from office—and not the County’s
        governing board. Art. IV, § 7(a), Fla. Const. And, ultimately, the
        Sheriff is independently accountable to the electorate of Orange
        County. Art. VIII, § 1(d), Fla. Const.; State v. Sheats, 78 Fla. 583, 83
        So. 508 (1919) (explaining that the term “office” as used in the
        Florida Constitution “implies a delegation of a portion of the
        sovereign power to, and the possession of it by, the person filling the
        office” or “independent authority of a governmental nature”). Given
        this constitutional framework, we [] find that the County cannot
        interfere with the Sheriff’s independent exercise of his duty to
        investigate misconduct by his deputies either by forcing him to
        appoint members to the CRB or by mandating his participation in
        CRB proceedings, either in person or through his deputies or
        employees.

Demings, 15 So. 3d at 610-11. Although the Fifth District Court of Appeal seemed

to recognize this was the dispositive issue in the case, see Id. at 609 (“[T]he

question presented is whether the County charter and ordinance creating and

authorizing an independent board to review citizen complaints against Sheriff’s

deputies, without first abolishing the constitutional office of sheriff, is

‘inconsistent’ with general law.”), 2 the court also addressed whether the conduct of

2   Because Orange County is a charter county, it is authorized by Article VIII

                                           12
the board was “inconsistent” with section 112.533. Id.3 We simply disagree with

the judgment of the Fifth District Court of Appeal on this point. Rather, we prefer

and remain quite comfortable with the observation made not so long ago by

another panel of this court in Timoney, relating to the issue before us today,

namely that Chapter 112 “concerns internal investigations conducted by a police

department of its own officers” and the PBR “sets forth the procedures to be

followed by the police department for interrogation of a law enforcement officer

under investigation by the police department[,]” Timoney, 990 So. 2d at 618

(first emphasis added), while the CIP’s authority “extends to independent,

external investigations.”      Id. at 619 (emphasis added).        Hence, following

Timoney, we conclude the CIP provides a distinct function that is not prohibited by


section 1(d) of the Florida Constitution to abolish the constitutionally elected office
of sheriff by charter amendment or special law approved by a vote of the electors
so long as all of the duties of the office are transferred to another office.
3Orange County’s “conflict” provision emanates from Article VIII, section 1(g) of

the Florida Constitution, which states: “Counties operating under county charters
shall have all powers of local self-government not inconsistent with general law . .
. . The governing body of a county operating under a charter may enact county
ordinances not inconsistent with general law.” Id. (emphasis added). The terms
are given the same construction in local government law in this state. See Jordan
Chapel Freewill Baptist Church, 334 So. 2d at 664 (affirming the lower court’s
determination that “conflict” in Article VIII, section 11 of the 1885 Florida
Constitution has been construed to mean “contradictory in the sense of legislative
provisions which cannot co-exist.”); see also E.B. Elliott Adver. Co. v. Metro.
Dade Cnty., 425 F.2d 1141, 1150 (5th Cir. 1970) (“The word ‘inconsistent’ means
contradictory in the sense of legislative provisions which cannot co-exist and the
same should be true of the word ‘conflict’ in [section] 11(5) [of Article VIII of the
1885 Florida Constitution].”).

                                          13
the rights and restrictions set forth under Chapter 112.       To the extent this

observation was non-dispositive in Timoney, we adopt it here in support of the

rationale already provided for affirmance.

      We affirm the decision of the trial court.

      WELLS, J., concurs.




                              Freddy D’Agastino, et al. v. The City of Miami, et al.
                                                              Case No. 3D10-2704


      ROTHENBERG, J. (dissenting).

      Because the City of Miami’s ordinance is preempted by and in conflict with

state law, it is unconstitutional. I, therefore, dissent from the majority opinion

upholding the ordinance.

      I agree that this case is governed by Article VIII, section 11 of the 1885

Florida Constitution, as amended in 1968, which authorized the creation of a

metropolitan government for Dade County (now Miami-Dade County) and granted

the county electors the power to adopt a home rule charter. Article VIII, section

11(1)(b) of the 1885 Florida Constitution authorized the charter to grant the Board

of County Commissioners of Dade County the power to pass ordinances relating to



                                         14
the affairs, property, and government of Dade County and to provide appropriate

penalties for violation of its ordinances.

      This grant of power to the Board of County Commissioners, however, does

not “limit or restrict the power of the Legislature to enact general laws which relate

to Dade County . . . or any municipality in Dade County . . . relating to county or

municipal affairs . . . .” Art. VIII, § 11(6). Article VIII, section 11(6) further

provides that, the general laws enacted by the Florida Legislature “shall supersede

any part or portion of the home rule charter . . . in conflict therewith and shall

supersede any provision of any ordinance enacted pursuant to said charter and in

conflict therewith . . . .” Id. Thus, section 11(6) preserves the Legislature’s right

to enact laws applicable to Miami-Dade County and the municipalities within

Miami-Dade County and limits the power of Miami-Dade County and its

municipalities to enact charters or laws that are not in conflict with general

(statutory) law. See also Article VIII, § 1(g), Fla. Const. (providing that under the

Florida Constitution, county charters “shall have all powers of local self-

government not inconsistent with general law”) (emphasis added); Article VIII,

§ 2(b), Fla. Const. (granting municipalities broad powers to conduct municipal

government, perform municipal functions, and render municipal services “except

as otherwise provided by law”) (emphasis added).

      In recognition of the powers granted and the limitations placed on local



                                             15
governments by the Florida Constitution, the Florida Legislature adopted the

Florida Municipal Home Rule Act in 1973. Sections 166.021(1), (3), and (4),

Florida Statutes (1973), prohibit the exercise of municipal powers where expressly

prohibited by the constitution, general or special law, or where expressly

preempted to state and county government.

             (1) As provided in s. 2(b), Art. VIII of the State Constitution,
      municipalities shall have the governmental, corporate, and proprietary
      powers to enable them to conduct municipal government, perform
      municipal functions, and render municipal services, and may exercise
      any power for municipal purposes, except when expressly
      prohibited by law.
      ....
             (3) The Legislature recognizes that pursuant to the grant of
      power set forth in s. 2(b), Art. VIII of the State Constitution, the
      legislative body of each municipality has the power to enact
      legislation concerning any subject matter upon which the state
      Legislature may act, except:
      ....
             (c) Any subject expressly preempted to state or county
      government by the constitution or by general law. . . .
             (4) The provisions of this section shall be so construed as to
      secure for municipalities the broad exercise of home rule powers
      granted by the constitution. It is the further intent of the Legislature to
      extend to municipalities the exercise of powers for municipal
      governmental, corporate, or proprietary purposes not expressly
      prohibited by the constitution, general or special law, or county
      charter and to remove any limitations, judicially imposed or
      otherwise, on the exercise of home rule powers other than those so
      expressly prohibited. . . .

§ 166.021, Fla. Stat. (1973) (emphasis added).

      The language found in Article VIII, section 2(b) of the Florida Constitution,

“except as otherwise provided by law,” has been interpreted as limiting municipal


                                          16
     power where: (1) state law expressly preempts the action, or (2) there exists a

     direct conflict between the local ordinance and a state statute. Tallahassee Mem’l

     Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st

     DCA 1996); see also Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.

     3d 880, 886 (Fla. 2010) (holding that “[a] local government enactment may be

     inconsistent with state law if (1) the Legislature has preempted a particular subject

     area or (2) the local enactment conflicts with a state statute”) (internal quotations

     omitted).   Because the City of Miami’s ordinance is expressly preempted by

     Florida law and is in direct conflict with Florida statutes, the ordinance is

     unconstitutional.

                                         ANALYSIS

A.      The City of Miami’s Ordinance

           In 2002, the City of Miami passed an ordinance creating a civilian

     investigative panel (“the CIP”) to “[c]onduct investigations, inquiries and public

     hearings to make factual determinations, facilitate resolutions and propose

     recommendations to the city manager and police chief regarding allegations of

     misconduct by any sworn officer of the city police department[.]” Miami, Fla.,

     Code Art. II, § 11.5-27(5).

           Specifically, article II, section 11.5-27 of the City of Miami’s Code

     provides:



                                              17
      The purpose, powers and duties of the CIP are to:

             (1) Act as independent civilian oversight of the sworn police
      department;
             (2) Exercise its powers so as to not interfere with any ongoing
      investigations and conduct its activities consistent with applicable law
      ...;
      ....
             (5) Conduct investigations, inquiries and public hearings to
      make factual determinations, facilitate resolution and propose
      recommendations to the city manager and police chief regarding
      allegations of misconduct by any sworn officer of the city police
      department;
             (6) Request issuance of subpoenas . . . for the purpose of
      obtaining evidence from witnesses and production of books, papers,
      and other evidence . . . .
      ....
             (8) Issue reports to the mayor, city commission, city attorney,
      city manager, chief of police and the public;
             (9) Make recommendations as to the disposition of alleged
      incidents of police misconduct, to which the police chief is required to
      respond within 30 days[.]

      The City of Miami’s code further provides that “[p]olicies and procedures

shall be established to ensure compliance with Chapters 112 and 119 of the Florida

Statutes . . . .” Miami, Fla., Code Art. II, § 11.5-33(e). As will be discussed in

detail below, the City of Miami’s ordinance is expressly preempted by, and is in

direct conflict with, Chapter 112.

B.    Chapter 112, Part VI, Law Enforcement Officers’ and Correctional
      Officers’ Bill of Rights

      Chapter 112, Part VI, governs the rights of law enforcement officers while

under investigation. Section 112.531(1) defines a “law enforcement officer” as:



                                        18
      [A]ny person, other than a chief of police, who is employed full time
      by any municipality or the state or any political subdivision thereof
      and whose primary responsibility is the prevention and detection of
      crime or the enforcement of the penal, traffic, or highway laws of this
      state; and includes any person who is appointed by the sheriff as a
      deputy sheriff pursuant to s. 30.07.

      Lt. D’Agastino, the appellant, who was subpoenaed to appear before the CIP

to answer questions and provide testimony to the CIP Committee regarding a

civilian complaint alleging he committed misconduct during a traffic stop, is,

without dispute, a law enforcement officer under section 112.531(1).              Lt.

D’Agastino, therefore, is entitled to all of the safeguards and protections set forth

in Chapter 112, Part VI, and specifically sections 112.532 and 112.533, commonly

referred to as the Law Enforcement Officers’ Bill of Rights.

      Section 112.532 identifies the rights granted to law enforcement and

correctional officers while under investigation, and begins with the following

preamble. “All law enforcement officers and correctional officers employed by

or appointed to a law enforcement agency or a correctional agency shall have

the following rights and privileges[.]” (emphasis added).            Subsection (1)

identifies the rights of law enforcement and correctional officers while under

investigation; subsection (2) addresses who shall serve on complaint boards;

subsection (3) provides a remedy for law enforcement and correctional officers

who are knowingly falsely accused; subsection (4) specifies the notice

requirements; subsection (5) protects law enforcement and correctional officers


                                         19
from retaliation for exercising their rights; and subsection (6) provides a 180-day

time limitation to complete an investigation.

      The rights specifically provided in section 112.532(1) are as follows:

             (1) RIGHTS OF LAW ENFORCEMENT OFFICERS AND
      CORRECTIONAL OFFICERS WHILE UNDER INVESTIGATION.
      —Whenever a law enforcement officer or correctional officer is under
      investigation and subject to interrogation by members of his or her
      agency for any reason that could lead to disciplinary action,
      suspension, demotion, or dismissal, the interrogation must be
      conducted under the following conditions:
             (a) The interrogation shall be conducted at a reasonable hour,
      preferably at a time when the law enforcement officer or correctional
      officer is on duty, unless the seriousness of the investigation is of such
      a degree that immediate action is required.
             (b) The interrogation shall take place either at the office of the
      command of the investigating officer or at the office of the local
      precinct, police unit, or correctional unit in which the incident
      allegedly occurred, as designated by the investigating officer or
      agency.
             (c) The law enforcement officer or correctional officer under
      investigation shall be informed of the rank, name, and command of
      the officer in charge of the investigation, the interrogating officer, and
      all persons present during the interrogation. All questions directed to
      the officer under interrogation shall be asked by or through one
      interrogator during any one investigative interrogation, unless
      specifically waived by the officer under investigation.
             (d) The law enforcement officer or correctional officer under
      investigation must be informed of the nature of the investigation
      before any interrogation begins, and he or she must be informed of the
      names of all complainants. All identifiable witnesses shall be
      interviewed, whenever possible, prior to the beginning of the
      investigative interview of the accused officer. The complaint, all
      witness statements, including all other existing subject officer
      statements, and all other existing evidence, including, but not limited
      to, incident reports, GPS locator information, and audio or video
      recordings relating to the incident under investigation, must be
      provided to each officer who is the subject of the complaint before the


                                         20
      beginning of any investigative interview of that officer. An officer,
      after being informed of the right to review witness statements, may
      voluntarily waive the provisions of this paragraph and provide a
      voluntary statement at any time.
              (e) Interrogating sessions shall be for reasonable periods and
      shall be timed to allow for such personal necessities and rest periods
      as are reasonably necessary.
              (f) The law enforcement officer or correctional officer under
      interrogation may not be subjected to offensive language or be
      threatened with transfer, dismissal, or disciplinary action. A promise
      or reward may not be made as an inducement to answer any questions.
              (g) The formal interrogation of a law enforcement officer or
      correctional officer, including all recess periods, must be recorded on
      audio tape, or otherwise preserved in such a manner as to allow a
      transcript to be prepared, and there shall be no unrecorded questions
      or statements. Upon the request of the interrogated officer, a copy of
      any recording of the interrogation session must be made available to
      the interrogated officer no later than 72 hours, excluding holidays and
      weekends, following said interrogation.
              (h) If the law enforcement officer or correctional officer under
      interrogation is under arrest, or is likely to be placed under arrest as a
      result of the interrogation, he or she shall be completely informed of
      all his or her rights before commencing the interrogation.
              (i) At the request of any law enforcement officer or correctional
      officer under investigation, he or she has the right to be represented by
      counsel or any other representative of his or her choice, who shall be
      present at all times during the interrogation whenever the
      interrogation relates to the officer’s continued fitness for law
      enforcement or correctional service.
              (j) Notwithstanding the rights and privileges provided by this
      part, this part does not limit the right of an agency to discipline or to
      pursue criminal charges against an officer.

      Both sides agree that the rights granted to law enforcement officers and

correctional officers under section 112.532 only apply when the officer’s

employing agency is conducting an investigation. Thus, the Law Enforcement

Officers’ and Correctional Officers’ Bill of Rights and the protections it provides


                                         21
to law enforcement officers does not protect them when they are being investigated

and questioned by the CIP.

C. The City of Miami’s ordinance is expressly preempted by Florida Statute

      Section 112.533, enacted in 1974, was amended in 2003 to add the following

bolded language:

      (1)(a) Every law enforcement agency and correctional agency shall
      establish and put into operation a system for the receipt, investigation,
      and determination of complaints received by such agency from any
      person, which shall be the procedure for investigating a complaint
      against a law enforcement and correctional officer and for
      determining whether to proceed with disciplinary action or to file
      disciplinary charges, notwithstanding any other law or ordinance
      to the contrary.

§ 112.533(1)(a), Fla. Stat. (2003) (emphasis added).

      The use of the word “the” before “procedure” is significant. As stated by the

Attorney General:

      “The” is a definite article generally used before nouns with a
      specifying or particularizing effect and as opposed to the generalizing
      effect of the indefinite article “a” or “an” and, depending on the
      context, generally is used to mean but one.

Op. Att’y Gen. Fla. 259 (1981), see also Work v. United States ex rel.

McAlestered-Wards Coal Co., 262 U.S. 200, 208 (1923).

      It is also noteworthy that the 2003 amendment provided an express statutory

exception authorizing investigation by the Criminal Justice Standards and Training

Commission. § 112.533(1)(a), Fla. Stat. (2003). It did not, however, provide an



                                         22
exception authorizing citizen review panels to conduct such investigations.

      In 2007, section 112.533 was further amended to require that:

             (1)(b)1. Any political subdivision that initiates or receives a
      complaint against a law enforcement officer or correctional officer
      must within 5 business days forward the complaint to the
      employing agency of the officer who is the subject of the
      complaint for review or investigation.
             2. For purposes of this paragraph, the term “political
      subdivision” means a separate agency or unit of local government
      created or established by law or ordinance and the officers thereof and
      includes, but is not limited to, an authority, board, branch, bureau,
      city, commission, consolidated government, county, department,
      district, institution, metropolitan government, municipality, office,
      officer, public corporation, town, or village.

§ 112.533(1)(b), Fla. Stat. (2007) (emphasis added).

      There is nothing ambiguous about these amendments. As the Fifth District

Court of Appeal found in Demings v. Orange County Citizens Review Board, 15

So. 3d 604, 608-09 (Fla. 5th DCA 2009), the statute as amended

      conveys a clear and definite directive that when a complaint is
      registered against a law enforcement officer, the employing agency is
      the only local governmental entity authorized to investigate that
      complaint. This is clear from: (1) the title language of chapter 2003-
      149, designating the investigation required by chapter 112 as the
      “exclusive procedure” for investigation; (2) the language added to
      section 112.533 in 2003, mandating that the investigation authorized
      by chapter 112 “shall be the procedure” for investigating
      complaints against local law enforcement “notwithstanding any
      other law or ordinance to the contrary;” and (3) the language added
      to section 112.533 in 2007, directing any local governmental entity
      that receives or initiates a complaint against a law enforcement officer
      to forward it to the employing agency for investigation in accordance
      with chapter 112.



                                        23
(emphasis added).

Thus, the language in section 112.533, as amended, clearly and unambiguously

mandates the procedure that must be followed when investigating a complaint

against a law enforcement or correctional officer. Chapter 112 provides certain

exceptions from this mandate. It provides an exception for the Criminal Justice

Standards and Training Commission. It also authorizes criminal investigations by

the State Attorney’s Office, state and federal grand juries, state and federal

criminal courts, the Florida Department of Law Enforcement, the Federal Bureau

of Investigation, and the United States Department of Justice. See Demings, 15

So. 3d at 608 n.3. Because review by citizen review panels is not excepted, the

City of Miami’s ordinance is preempted by Florida law and is therefore

unconstitutional.

      In 2013, the Florida Supreme Court upheld the Fifth District Court of

Appeal’s decision in City of Palm Bay v. Wells Fargo Bank, 114 So. 3d 924 (Fla.

2013), which struck down a municipal ordinance that was inconsistent with, and in

direct conflict with, the general statutory scheme for priority of rights with respect

to interests in real property created by the Legislature. The issue was “conflict

preemption” and the Florida Supreme Court’s analysis is highly instructive.

      The Florida Supreme Court began its analysis by acknowledging that “[i]n

Florida, a municipality is given broad authority to enact ordinances under its



                                         24
municipal home rule powers,” City of Palm Bay, 114 So. 3d at 928 (quoting City

of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006)), and that pursuant

to section 166.021 “a municipality may legislate concurrently with the Legislature

on any subject which has not been expressly preempted to the State.” Id.

      In discussing preemption, the Florida Supreme Court stated the following:

      But we have never interpreted either the constitutional or statutory
      provisions relating to the legislative preemption of municipal home
      rule powers to require the Legislature specifically state that the
      exercise of municipal power on a particular subject is precluded.
      Instead, we have held that “[t]he preemption need not be explicit so
      long as it is clear that the legislature has clearly preempted local
      regulation of the subject.” Barragan v. City of Miami, 545 So. 2d
      252, 254 (Fla. 1989). We have also recognized that where concurrent
      state and municipal regulation is permitted because the state has not
      preemptively occupied a regulatory field, “a municipality’s concurrent
      legislation must not conflict with state law.” Thomas v. State, 614 So.
      2d 468, 470 (Fla. 1993).
              The critical phrase of article VIII, section 2(b) — “except as
      otherwise provided by law”— establishes the constitutional
      superiority of the Legislature’s power over municipal power.
      Accordingly, “[m]unicipal ordinances are inferior to laws of the
      State and must not conflict with any controlling provision of a
      statute.” Thomas, 614 So. 2d at 470. When a municipal “ordinance
      flies in the face of state law”— that is, cannot be reconciled with state
      law—the ordinance “cannot be sustained.” Barragan, 595 So. 2d at
      255. Such “conflict preemption” 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.” 5 McQuillin
      Mun. Corp. § 15:16 (3d ed. 2012).

      . . . .

      [T]he Legislature has created a general scheme for priority of rights
      with respect to interest in real property. Giving effect to the
      ordinance superpriority provision would allow a municipality to


                                         25
      displace the policy judgment reflected in the Legislature’s
      enactment of the statutory provisions. And it would allow the
      municipality to destroy rights that the Legislature established by
      state law. A more direct conflict with a statute is hard to imagine.
      Nothing in the constitutional or statutory provisions relating to
      municipal home rule or in the Local Government Code Enforcement
      Boards Act provides any basis for such municipal abrogation of a
      state statute. The conflict between the Palm Bay ordinance and state
      law is a sufficient ground for concluding that the ordinance super
      priority provision is invalid.
             We categorically reject the City’s argument that the legislative
      enactment of exceptions to a statutory scheme provides justification
      for municipalities to enact exceptions to the statutory scheme. No
      authority supports this argument. The power to create exceptions to a
      legislative scheme is the power to alter that legislative scheme.
      “Fundamental to the doctrine of preemption is the understanding
      that local governments lack the authority to craft their own
      exceptions to general state laws.” 5 McQuillin Mun. Corp. §15:18
      (3d ed. 2012). Although municipalities generally have “the power to
      enact legislation concerning any subject matter upon which the state
      legislature may act,” §166.021(3), Fla. Stat. (2004), in exercising their
      power within that scope municipalities are precluded from taking any
      action that conflicts with a state statute. In this context, concurrent
      power does not mean equal power.

Id. at 928-29. (emphasis added).

      The City of Miami’s ordinance does exactly what Florida’s constitution and

the Florida Supreme Court in City of Palm Bay forbids. It creates an exception to

the statutory scheme provided in Chapter 112, Part VI, which governs the rights of

law enforcement officers while under investigation. As previously stated, section

112.533(1)(a) establishes “the” procedure which “shall be the procedure for

investigating a complaint against a law enforcement and correctional officer,” and

section 112.533(1)(b) requires that any complaint filed against a law enforcement


                                         26
or correctional officer must be forwarded to the employing agency of the officer

for investigation. The statute “conveys a clear and definite directive that when a

complaint is registered against a law enforcement officer, the employing agency is

the only local governmental entity authorized to investigate that complaint.”

Demings, 15 So. 3d at 608.

      The only exceptions to this statutory scheme have been explicitly provided

by the Legislature. The Legislature has provided an exception for the Criminal

Justice Standards and Training Commission, see § 112.533(1)(a), and it

additionally authorizes investigations of law enforcement and correctional officers

by the State Attorney’s Office, state and federal grand juries, state and federal

courts, the Florida Department of Law Enforcement, the Federal Bureau of

Investigation, and the United States Department of Justice. See Demings, 15 So.

3d at 608 n.3.   Conspicuously missing from this list are citizen review panels.

And as the Florida Supreme Court stated in City of Palm Bay, “[f]undamental to

the doctrine of preemption is the understanding that local governments lack the

authority to craft their own exceptions to general state laws . . . concurrent power

does not mean equal power.” City of Palm Bay, 114 So. 3d at 929.

D.    The City of Miami’s ordinance is also in conflict with Florida law

      The City of Miami’s ordinance is not only preempted by state law, it is also

in direct conflict with state law. Section 112.533, as amended in 2003 and 2007,



                                        27
specifies that a law enforcement agency’s internal investigation shall be the

procedure   for   investigating   law   enforcement    and   correctional   officers

notwithstanding any other law or ordinance to the contrary. § 112.533(1)(a),

Fla. Stat. (2007).   In 2007, the statute was also amended to direct all local

governmental entities that receive or initiate a complaint against a law enforcement

or correctional officer to forward the complaint to the employing agency for

investigation in accordance with Chapter 112. § 112.533(1)(b).

      Section 112.533 also adds various other duties by the investigating agency

and protections for the law enforcement or correctional officer being investigated.

For example, section 112.533(1)(a) dictates that agency personnel assigned to the

investigation must: prepare a report; verify that the contents are true and

accurate based on personal knowledge, information, and belief; and include a

sworn statement attesting that the rights of the officer under investigation

contained in sections 112.532 and 112.533 have been honored.                Section

112.533(2)(a) provides that the complaint and investigation must be kept

confidential until the investigation is closed or the agency head provides written

notice to the subject officer informing the officer that the investigation has

concluded and whether disciplinary charges will be filed. Section 112.533(2)

additionally grants the subject officer and/or his attorney broad discovery rights

and access, and section 112.533(4) establishes penalties for premature willful



                                        28
disclosure or failure to provide the subject officer with access to the identified

discoverable items.

      These statutorily mandated obligations of the investigating agency and the

rights granted to law enforcement and correctional officers are not similarly

required or granted under the City of Miami’s ordinance, nor are the rights set forth

in section 112.532.       Specifically, section 112.532(1) requires that: (1) the

interrogation take place at the precinct or correctional unit where the incident

allegedly occurred, at a reasonable time and preferably while the officer is on duty,

§ 112.532(1)(a-b); (2) all questions directed to the officer be asked by or through

one interrogator during any one investigative interrogation, § 112.532(1)(c); (3) the

officer under investigation must be informed of the nature of the investigation, the

name of the complainant(s) and witnesses, all witness statements, and other

evidence obtained, prior to the interrogation of the subject officer, § 112.532(1)(d);

(4) the interrogation must be recorded and be made available upon request by the

subject officer within 72 hours of the interrogation, § 112.532(1)(g); (5) if the

subject officer is under arrest or is likely to be placed under arrest as a result of the

interrogation, he or she must be informed of his or her rights prior to

commencement of the interrogation, § 112.532(1)(h); and (6) the subject officer

has the right to be represented by counsel and have counsel present during the

interrogation, § 112.532(1)(g). The City of Miami Ordinance does not provide



                                           29
these protections.

      The following protections are also provided by Chapter 112, Part VI, to law

enforcement and correctional officers under investigation and are not required by

the City of Miami’s ordinance. Section 112.532(3) grants law enforcement and

correctional officers the right to bring a civil suit against any person, group,

organization or corporation, or the head of such organization or corporation, for

abridgment of the officer’s rights or for filing a complaint which the person or

entity knew was false when it was filed. Section 112.532(6) additionally restricts

the investigation to a 180-day period.

      Because the City of Miami’s ordinance does not include these substantial,

material requirements and rights, it is in direct conflict with sections 112.532 and

112.533. Therefore, the ordinance is unconstitutional. To hold otherwise would

render these statutes meaningless and provide law enforcement and correctional

agencies with a mechanism to obtain statements and other evidence from its

officers by non-statutorily created boards that are not required to comply with the

statutory mandates contained in Chapter 112. In other words, it would permit law

enforcement to use evidence the CIP obtained without affording the subject officer

the protection of the Law Enforcement Officers’ Bill of Rights.

      In reaching its contrary conclusion, the majority relies on this Court’s

opinion in Timoney v. City of Miami Civilian Investigative Panel, 990 So. 2d 614



                                         30
(Fla. 3d DCA 2008), while noting that the majority opinion conflicts with the Fifth

District Court of Appeals opinion in Demings. Timoney, however, did not address

the constitutionality of the City of Miami’s ordinance or analyze whether the

ordinance conflicts with or is preempted by state statute. This Court in Timoney

merely determined that because Chapter 112 only governs the rights of law

enforcement officers under investigation, and the definition of “law enforcement

officer” in section 112.531(1) specifically exempts the chief of police from its

definition, Chapter 112 did not apply to Chief Timoney and he was therefore

subject to the CIP’s investigative subpoena. Timoney is therefore not controlling.

Indeed, the majority, does not contend that it is. Conversely, the Fifth District

Court of Appeal in Demings did address the constitutionality of a similar county

ordinance in Orange County and found that it was in direct conflict with Chapter

112. I wholeheartedly agree with the Fifth District’s opinion in Demings.

      In Demings, Orange County’s Sheriff, Jerry Demings, and his deputy,

Steven Jenny, appealed the trial court’s order upholding the sections of Orange

County’s charter and ordinances establishing the Orange County Citizen’s Review

Board (“the CRB”), which is similar to the board created by the City of Miami, the

CIP, and was created to investigate citizen complaints of excessive force and abuse

of power.   Demings, 15 So. 3d at 605.       After analyzing section 112.533, as

amended in 2003 and 2007, the Fifth District Court of Appeal concluded it was



                                        31
unambiguous and “[i]t conveys a clear and definite directive that when a complaint

is registered against a law enforcement officer, the employing agency is the only

local governmental agency authorized to investigate the complaint.” Id. at 608.

The Fifth District thus concluded that “[b]ecause section 112.533 limits the

investigation of complaints against law enforcement officers by local

government to the employing agency’s investigation, the charter provisions

and ordinance that establish an additional procedure for investigating these

complaints necessarily and directly conflict with the statute.”         Id. at 609

(emphasis added).

                                     CONCLUSION

      Because the City of Miami’s ordinance is preempted by state law and it is in

direct conflict with sections 112.532 and 112.533, it is unconstitutional.        I,

therefore, respectfully disagree with the majority opinion upholding the ordinance.

Additionally, the majority recognizes, and clearly states, that it “disagrees” with

the Fifth District Court of Appeals’ opinion in Demings, but then it refuses to

certify conflict without addressing its reason(s) for doing so. Because the majority

opinion is in direct conflict with Demings, I also respectfully dissent from the

majority’s refusal to certify direct conflict with Demings.




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