NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2006
BRIAN BROWNE, Appellant, vs. THE CITY OF MIAMI, Appellee.
** ** ** ** ** ** LOWER TRIBUNAL NO. 03-23344 CASE NO. 3D05-2542
Opinion filed November 8, 2006. An Appeal from the Circuit Court for Miami-Dade County, Robert N. Scola, Jr., Judge. Mark J. Berkowitz, for appellant. Jorge L. Fernandez, City Attorney, Assistant City Attorney, for appellee. Before COPE, C.J., and GREEN and SUAREZ, JJ. SUAREZ, J. Brian summary Browne appeals in favor the of trial the court’s of order Miami. granting Summary and Mimi V. Turin,
judgment
City
judgment was not appropriate based on the facts of this case. Therefore, we reverse. Brian Browne was employed by the City of Miami in 2001, as an “unclassified” employee. While employed, he notified
departments and agencies that certain sums were being used by the City in ways Browne deemed illegal. was terminated. Two months later, he
Browne filed an administrative complaint before
the Civil Service Board which informed Browne, incorrectly, that he did not have a right, under Administrative Rule 16-2, to bring an administrative appeal because he was an “unclassified” employee. Two months later, Browne filed the present action in
circuit court against the City for violation of the “Whistleblower’s Act,” Chapter 112, Florida Statutes (2002), claiming the firing was a retaliatory action by the City because of his report to the agencies. The City filed a motion for summary
judgment claiming the circuit court did not have jurisdiction as Browne had failed to exhaust the required administrative
remedies.
The City argued that Browne failed to pursue his
required administrative remedies as the Civil Service Board did have the authority to hear his claim. Browne claims that he
alleged in the complaint he had met all conditions precedent as opposed to alleging exhaustion of remedies because the Board had informed him that he had no administrative remedies. judge granted the City’s motion for summary final The trial judgment
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citing that the trial court did not have jurisdiction as Browne had failed to exhaust the required administrative remedies. A party is required to exhaust administrative remedies
prior to turning to the circuit court for relief.
See DeCarlo
v. Town of W. Miami, 49 So. 2d 596, 596-97 (Fla. 1950); State Dep’t of Envtl. Prot. v. PZ Constr. Co., Inc., 633 So. 2d 76, 78-79 (Fla. 3d DCA 1994). This requirement applies to the
Whistle-blower’s statute.
McGregor v. Palm Beach County, 674 F. The Act itself provides in section
Supp. 858 (S.D. Fla. 1987). 112.3187(8)(b):
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 or has contracted with the Division of Administrative Hearings under s. 120.65 to conduct hearings under this section. 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. Upon hearing the complaint, the panel must make findings of fact and conclusions of law for a final decision by the local governmental authority. The Civil Service Board meets the requirement of section 112.3187(8)(b) as the panel before whom the administrative
hearing must be conducted. 299 (Fla. 3d DCA 1998).
City of Miami v. Del Rio, 723 So. 2d
The Board was required to make findings
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of fact and conclusions of law which the local governmental authority would then use to base its final decision. Therefore, Browne was required to appear before the Board and was required to obtain findings of fact and conclusions of law in order to proceed with a decision by the governmental authority. Only
after he exhausted this required administrative remedy could he seek judicial relief. Up to this point the trial court was
correct in determining that it lacked jurisdiction to hear his claim. The record contains a very important fact that precludes At the City of Miami Civil
the granting of summary judgment.
Service Board meeting in question, Browne’s attorney appeared and was informed, incorrectly, by the Board that it had no
jurisdiction.
The meeting also was attended by the attorney for
the Board and an Assistant City Attorney for the City of Miami. Both attorneys concurred that with she the Board’s other decision and told to
Browne’s follow.
attorney
had
statutory
avenues
The City cannot at the Civil Service Board hearing tell
Browne the Board had no jurisdiction and then at the summary judgment hearing argue that the Civil Service Board did have jurisdiction and that Browne failed to exhaust his
administrative remedies. arguing that Browne
Therefore the City is estopped from to exhaust his administrative
failed
remedies and should have filed a petition for certiorari from the Board’s decision. See Bruce v. City of Deerfield Beach, 423
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So. 2d 404, 406 (Fla. 4th DCA 1982). both ways. Reversed and remanded.
The City cannot have it
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