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No. SC16-645
FREDDY D'AGASTINO, et al.,
Petitioners,
vs.
THE CITY OF MIAMI, et al.,
Respondents.
[June 22, 2017]
LEWIS, J.
The many and multiple complexities and conflicts generated in today's
society have produced numerous difficulties inherent in the delivery of police work
and services. The City of Miami, along with other governmental units, have
responded to some of those difficulties inherent in modern police work by creating
citizen review and investigative panels. The present case has been generated by
the creation of and powers given to a group known as the City of Miami Civilian
Investigative Panel (CIP), which is an independent body designed to investigate
and review instances of alleged police misconduct, and review police policies and
procedures, with the ultimate goal of making recommendations to the relevant law
enforcement agency. Today we consider a challenge to some of the CIP's
authority, in which Lieutenant Freddy D'Agastino and the Fraternal Order of
Police seek review of the decision of the Third District Court of Appeal in
D'Agastino v. City of Miami, 189 So. 3d 236 (Fla. 3d DCA 2016), on the basis
that it expressly and directly conflicts with a decision of the Fifth District Court of
Appeal in Demings v. Orange County Citizens Review Board, 15 So. 3d 604 (Fla.
5th DCA 2009), on a question of law. The policy or wisdom of such investigative
panels is not before us. Specifically, the only question before us involves the
operative effect of the Police Officers' Bill of Rights (PBR), codified in sections
112.531-.535, Florida Statutes (2008), and whether those state statutes have any
preemptive force with regard to the activities of other review panels. Due to the
conflict of decisions, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
FACTUAL, LEGAL, AND PROCEDURAL BACKGROUND
On March 5, 2009, a complaint was filed with the CIP against Lt.
D'Agastino for alleged misconduct that had occurred the day before during a
traffic stop. The City of Miami Police Department's Internal Affairs Division
(Internal Affairs) subsequently fully investigated the matter, interviewing under
oath the complainant, Lt. D'Agastino, and two other officers who were present
during the traffic stop. On April 8, 2009, Internal Affairs mailed a letter to the
complainant indicating that it had completed its investigation and that its findings
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were "inconclusive" as to the alleged misconduct "because insufficient evidence
exists to prove or disprove the allegation." Specifically, the Internal Affairs report
indicated that there were no independent witnesses to corroborate either conflicting
account of the incident that emerged from the sworn interviews conducted by
Internal Affairs.
On April 17, 2009, nine days after the letter indicating Internal Affairs had
completed its investigation, the CIP issued a subpoena to Lt. D'Agastino ordering
him to appear before the CIP to testify. However, on May 22, 2009, Lt.
D'Agastino filed an action in the circuit court of the Eleventh Judicial Circuit
alleging that the CIP as an investigative authority conflicts with a component of the
PBR, section 112.533(1), Florida Statutes. As a result, Lt. D'Agastino requested
that the subpoena issued by the CIP be quashed and a protective order entered.
Separately, the Fraternal Order of Police had filed a declaratory action also
alleging that the CIP was in conflict with section 112.533(1), Florida Statutes. The
two cases were consolidated and the trial court ultimately ruled in favor of the City
of Miami and the CIP on cross -motions for summary judgment. Lt. D'Agastino
then appealed the trial court's decision to the Third District Court of Appeal. The
Third District affirmed, entertained a motion for rehearing for three years, but
ultimately issued a substituted opinion once again affirming the trial court's order.
The Third District's decision was by a vote of two to one. Before we delve into
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the details of the legal reasoning at issue, however, it is helpful to understand the
state law and municipal ordinances that are at issue and under consideration here.
The Police Officers' Bill of Rights
We begin with the Police Officers' Bill of Rights, codified in Part VI of
Chapter 112 of the Florida Statutes. Most relevant here, section 112.533 is titled
"Receipt and processing of complaints," and provides in pertinent part:
(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. When law enforcement or correctional
agency personnel assigned the responsibility of investigating the
complaint prepare an investigative report or summary, regardless of
form, the person preparing the report shall, at the time the report is
completed:
1. Verify pursuant to s. 92.525 that the contents of the report
are true and accurate based upon the person's personal knowledge,
information, and belief.
2. Include the following statement, sworn and subscribed to
pursuant to s. 92.525:
"I, the undersigned, do hereby swear, under penalty of perjury, that, to
the best of my personal knowledge, information, and belief, I have not
knowingly or willfully deprived, or allowed another to deprive, the
subject of the investigation of any of the rights contained in ss.
112.532 and 112.533, Florida Statutes."
The requirements of subparagraphs 1. and 2. shall be completed prior
to the determination as to whether to proceed with disciplinary action
4
or to file disciplinary charges. This subsection does not preclude the
Criminal Justice Standards and Training Commission from exercising
its authority under chapter 943.
(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, depai tiiient,
district, institution, metropolitan government, municipality, office,
officer, public corporation, town, or village.
§ 112.533(1), Fla. Stat. (2008) (emphasis added).'
Immediately preceding is section 112.532, titled "Law enforcement officers'
and correctional officers' rights." Section 112.532 introduces several rights
afforded to law enforcement officers2 with the following language, "All law
enforcement officers ... employed by or appointed to a law enforcement agency
1. Although the complaint was filed in 2009, the decision below analyzed
the 2007 Florida Statutes. There were no amendments to any section of the PBR in
2008, and the 2009 amendments were not effective until July 1, 2009, well after
this action was filed on May 22, 2009. Ch. 2009-200, § 4, at 6, Laws of Fla. ("This
act shall take effect July 1, 2009.").
2. "Law enforcement officer" is defined as "any 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
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... shall have the following rights and privileges." § 112.532(1), Fla. Stat. Those
rights and privileges are enumerated in six subsections and many subparagraphs.
The first set of rights and privileges are those "Rights of Law Enforcement
Officers and Correctional Officers While Under Investigation," enumerated in
subsection 112.532(1):
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 which could lead to disciplinary action,
demotion, or dismissal, such interrogation shall 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.
this state; and includes any person who is appointed by the sheriff as a deputy
sheriff pursuant to s. 30.07." § 112.531(1), Fla. Stat.
6
(d) The law enforcement officer or correctional officer under
investigation shall be informed of the nature of the investigation prior
to any interrogation, and he or she shall 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 and all witness
statements shall be provided to the officer who is the subject of the
complaint prior to the 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 shall not be subjected to offensive language or be
threatened with transfer, dismissal, or disciplinary action. No promise
or reward shall 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, shall 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 such 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 prior to the commencement of the interrogation.
(i) At the request of any law enforcement officer or
correctional officer under investigation, he or she shall have the right
to be represented by counsel or any other representative of his or her
choice, who shall be present at all times during such interrogation
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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.
§ 112.532(1)(a)-(j), Fla. Stat.
Section 112.532, subsection (6), titled "Limitations Periods for Disciplinary
Actions," provides an elaborate limitations and tolling framework that prohibits
"disciplinary action, demotion, or dismissal" if the "investigation is ... not
completed within 180 days after the date the agency receives notice of the
allegation." § 112.532(6), Fla. Stat. The subsection enumerates five exceptions
that toll the 180-day limitations period.' Further, subsection 112.532(6)(b)
provides that an investigation may nevertheless be reopened if:
1. Significant new evidence has been discovered that is likely to
affect the outcome of the investigation.
2. The evidence could not have reasonably been discovered in the
normal course of investigation or the evidence resulted from the
predisciplinary response of the officer.
3. The exceptions are for (1) when the officer waives the limitation period
in writing; (2) the pendency of a criminal investigation or prosecution; (3)
incapacity of the officer; (4) facilitating multijurisdictional investigations; and (5)
when the Governor has declared a state of emergency. § 112.532(6)(a)1.-5., Fla.
Stat.
-8
§ 112.532(6)(b)1.-2., Fla. Stat. However, "[a]ny disciplinary action resulting from
an investigation that is reopened pursuant to this paragraph must be completed
within 90 days after the date the investigation is reopened." § 112.532(6)(b), Fla.
Stat.4
Relevant City of Miami Charter and Code Provisions
The CIP's history began with Section 51 of the Miami Charter which
authorized the city commission to create a CIP "to act as independent citizens'
oversight of the sworn police department." Miami, Fla., Charter § 51 (2012). In
relevant part, the CIP is authorized to "(1) conduct independent investigations of
police misconduct," and "(3) make recommendations to the city manager and/or
directly to the police chief, to which a timely written response shall be received
within 30 days." Id.
Directly challenged by Lt. D'Agastino here, the enabling ordinances
empower the CIP to execute subpoenas for investigation of allegations of police
misconduct:
Sec. 11.5-32. - Subpoena power.
4. Section 112.532 also provides for complaint review boards, a statutory
right to bring a civil action for damages arising from false complaints, a
prohibition against disciplinary action without first affording an officer notice and
an opportunity to respond, and protection from even the threat of retaliation for the
exercise of the rights contained in the PBR. §§ 112.532(2)-(5), Fla. Stat.
-9-
(a) The CIP may subpoena witnesses and documents when
conducting an independent investigation of allegations of police
misconduct as follows:
(1) A request for a subpoena must be presented to and
reviewed by the CIP independent counsel;
(2) The CIP independent counsel may deny or approve the
request after consulting with the state attorney's office;
(3) If approved by the CIP independent counsel, the CIP may
issue the subpoena with an affirmative vote of seven of its members.
(b) The subpoena shall be valid only within the jurisdictional limits of
the city. However, the CIP may seek enforcement and extraterritorial
domestication of its subpoenas in accordance with general law.
§ 11.5-32, Miami, Fla., Code ch. 11, art. II, § 11.5-32 (2012). The ordinances also
list several procedures to be followed in connection with such subpoenas:
Sec. 11.5-33. - Procedures related to city employees and witnesses.
(a) When a city employee appears before the CIP in response
to a subpoena, such employee shall be formally advised prior to the
commencement of testimony that if the employee has a good -faith
belief that the testimony would tend to be self -incriminating, and if, in
reliance upon that good -faith belief, the employee declines to answer
any question, that the employee's decision not to provide testimony
will not subject him or her to any adverse employment consequences.
Any employee who, after receiving such advice, decides to testify or
provide evidence, must sign a statement acknowledging that the
employee understands the advice and is testifying or providing
evidence voluntarily and knowingly.
(b) A police officer who is the subject of an investigation shall
be informed of the nature of the investigation and provided with a
copy of the complaint prior to being interrogated.
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(c) A person who appears before the CIP in response to a CIP
request for testimony may be represented by counsel or any other
representative of his or her choice, which representative may be
present at all times during the subject's appearance before the CIP.
(d) The CIP may hold evidentiary hearings requiring witnesses
in the manner set forth in section 11.5-30. Only the subject of the
complaint, witnesses, their attorneys or representatives and CIP
members may participate in evidentiary hearings.
(e) Policies and procedures shall be established to ensure
compliance with Chapters 112 and 119 of the Florida Statutes and any
other applicable laws.J51
Id. at § 11.5-33, Miami, Fla., Code. Also relevant here, a two-way comingling
interaction between the CIP and the City of Miami Police Department is
prominently featured in the local ordinances. For one, "the police department shall
be notified of complaints received by the CIP within two working days." § 11.5-
31(1)b. Additionally, "[a]t the conclusion of the internal affairs investigation, the
internal affairs report prepared for the Chief of Police shall be transmitted to the
CIP within three working days." Id. at § 11.5-31(2)(b), Miami, Fla., Code.
Continuing the two-way comingling interaction, the CIP's ultimate findings and
conclusions are forwarded to the Chief who must then respond within thirty days:
At the conclusion of its review or investigation the CIP shall forward
its written findings and conclusions to the chief of police and to
affected officers and, to the extent permitted by law, to the
complainants to which a timely written response shall be received
from the chief of police within 30 days.
5. The record before us does not reveal any such policies or procedures.
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§ 11.5-31(5), Miami, Fla., Code. Furthermore, after reviewing an Internal Affairs
report, the code provisions grant the CIP five options, three of which involve
interacting directly with the police depaitinent:
1. Request that the chief of police conduct further
investigation, or
2. Obtain further case -specific information from the
chief of police, including written materials, audio or
video tapes, and related documents, or
3. Conduct an independent investigation, such
investigation to be concluded within 120 days, or
4. Notice and hold a hearing to gather evidence, or
5. Report its written findings and conclusions to the city
manager and/or the chief of police;
§ 11.5-31(2)(c)1.-5., Miami, Fla., Code.
Legal Analysis in Decision Below and Relevant Legal Analysis of the Conflict
Case
With that background law, the analysis of the decision below can be
properly understood. To begin, the decision below held that the CIP did not
conflict in any way with section 112.533(1) because the CIP is independent,
external, and cannot directly impose discipline, whereas that particular section and
the PBR in general only govern internal investigations by the employing law
enforcement agency. See D'Agastino, 189 So. 3d at 240-42. The court below
reasoned that the CIP acts independently of the police department and is granted
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limited power to act in response to its investigations, and may only propose
recommendations to the City Manager or Police Chief. See id. at 240. The court
was of the view that the CIP does not interfere with any pending or potential
criminal investigations or prosecution or with other investigations. See id. at 240-
41. The district court also deemed it important that before investigating a
complaint, the CIP must consult with its independent counsel who consults with
appropriate prosecutorial agencies. See id. at 241. It was also important that the
CIP provides a mechanism for other agencies to obtain a stay for purposes of
challenging a CIP investigation in a court of competent jurisdiction. See id. The
decision below also emphasized that the PBR is limited to investigations conducted
by the officer's employing law enforcement agency and makes no reference to
external investigations. See id. Ultimately, the district court reasoned that there is
no conflict because the CIP lacks authority to make the types of police
management decisions addressed in the PBR or to impact the obligations imposed
on the police depaitiiient by the PBR. See id. The court further suggested that Lt.
D'Agastino had conceded that there was no express preemption. See id. at 240.
Similarly, the Fifth District in Demings considered whether the Orange
County Citizen's Review Board (CRB) had the power to compel deputies of the
Orange County Sheriff to appear and testify in CRB investigations by subpoena.
15 So. 3d at 610. However, in conflict with the decision below, the Demings court
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did not find that the CRB was reconcilable with section 112.533 because it
understood the plain language of section 112.533 to authorize only one local
government entity to investigate a complaint of officer misconduct —the officer's
employing agency. Id. at 608-10. Specifically, the Demings court considered
section 112.533 unambiguous and conveying a clear and definite directive that the
employing agency is the only local government entity authorized to investigate a
complaint registered against a law enforcement officer. Id. at 608. The Demings
court was of the view that amendments enacted in 2003 and 2007 confirmed this
reading, primarily due to its addition of language in 2003 mandating that the law
enforcement agency investigation amendments "shall be the procedure" for
investigating complaints against local law enforcement "notwithstanding any other
law or ordinance to the contrary," as well as the language added in 2007 directing
local government entities to forward complaints against an officer to the officer's
employing agency. Id.6
The dissent in the decision below agreed with Demings. See D'Agastino,
189 So. 3d at 247-48 (Rothenberg, J., dissenting). The dissent was of the view that
express preemption applied. Id. at 248 (Rothenberg, J., dissenting). In addition to
6. In a section titled "Other Problems with the CRB Charter Provision and
Implementing Ordinances," the Demings court held alternatively that the CRB was
unconstitutional due to the Sheriff's position as a constitutional officer. Demings,
15 So. 3d at 610-11.
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the reasoning offered in Demings, the dissent in the decision below concluded that
the CIP impermissibly creates an exception to the statutory scheme of the PBR.
See id. (Rothenberg, J. dissenting) (citing City of Palm Bay v. Wells Fargo Bank
N.A., 114 So. 3d 924 (Fla. 2013)). Specifically, the dissent noted that the PBR
contains an exception for the Criminal Justice Standards and Training Commission
(CJSTC) and authorizes criminal investigations conducted 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. Id. at 248 (Rothenberg, J., dissenting). Thus,
noting that citizen review and investigatory panels are conspicuously missing from
those exceptions, the dissent concluded they are preempted and unconstitutional.
Id. at 250 (Rothenberg, J., dissenting) (citing City of Palm Bay, 114 So. 3d at 929
("Fundamental 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.")).
We resolve the conflict between Demings and the decision below.
ANALYSIS
In Florida, the power of a municipal government to legislate is derived from
both constitutional provisions and statute. Generally speaking, the Florida
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Constitution authorizes and empowers municipalities to exist and conduct
municipal powers except as otherwise provided by law:
(b) POWERS. Municipalities shall have 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
as otherwise provided by law. Each municipal legislative body shall
be elective.
Art. VIII, § 2(b), Fla. Const.7
Acting on its constitutional authority to address municipal powers, the
Legislature clarified the powers of municipal government by enacting the
Municipal Home Rule Powers Act, which is now codified in section 166.021 of the
Florida Statutes. Specifically, section 166.021(1) provides in full:
166.021 Powers.--
(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.
7. With regard to municipalities located within Miami -Dade County, there
are several other constitutional provisions largely to the same effect from the 1885
Constitution that have been retained and incorporated by reference. See art. VIII,
§6(a), (e), Fla. Const. (1968); art. VIII, § 11, Fla. Const. (1885, as amended 1967).
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§ 166.021(1), Fla. Stat. (2008). However, these powers are subject to limitations;
among others, municipalities may not enact legislation concerning subjects
expressly preempted to the state by general 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:
(a) The subjects of annexation, merger, and exercise of
extraterritorial power, which require general or special law pursuant to
s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county
government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county
charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of
the State Constitution.
§ 166.021(3), Fla. Stat. (2008) (emphasis added).
Against this backdrop, in Sarasota Alliance for Fair Elections, Inc. v.
Browning, 28 So. 3d 880, 885-86 (Fla. 2010), we discussed the manner in which a
local government enactment may be inconsistent with state law. Relevant here, a
local government enactment may be inconsistent with state law where the
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Legislature has preempted a particular subject area.' Id. at 886 (quoting Lowe v.
Broward Cty., 766 So. 2d 1199, 1206-07 (Fla. 4th DCA 2000)). Florida law
recognizes both express preemption and implied preemption. Id. On one hand,
express preemption requires a specific legislative statement —it cannot be implied
or inferred —and the preemption of a field is accomplished by clear language. Id.
On the other hand, implied preemption occurs when the state legislative scheme is
pervasive and the local legislation would present a danger of conflict with that
pervasive scheme. Id. In other words, preemption is implied when the legislative
scheme is so pervasive as to virtually evidence an intent to preempt the particular
area or field of operation, and where strong public policy reasons exist for finding
such an area or field to be preempted by the Legislature. Id. Thus, preemption
does not require explicit words so long as it is clear from the language utilized that
the Legislature has clearly preempted local regulation of the subject. Barragan v.
City of Miami, 545 So. 2d 252, 254 (Fla. 1989). The test for implied preemption
requires that we look "to the provisions of the whole law, and to its object and
policy." Browning, 28 So. 3d at 886 (citing State v. Harden, 938 So. 2d 480, 486
(Fla. 2006)). Further, "[t]he nature of the power exerted by the Legislature, the
8. Under Florida law, a separate and distinct way for a local enactment to be
inconsistent with state law is where the local enactment conflicts with a state
statute. Browning, 28 So. 3d at 885-86.
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object sought to be attained by the statute at issue, and the character of the
obligations imposed by the statute are all vital to this determination." Id. (citing
Harden, 938 So. 2d at 486).
However, we must be careful and mindful in attempting to impute intent to
the Legislature to preclude a local elected governing body from exercising its
home rule powers. Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med.
Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996). Nevertheless, as we
reemphasized in City of Palm Bay, because the Legislature is ultimately superior to
local government under the Florida Constitution, preemption can arise even where
there is no specifically preclusive language. 114 So. 3d at 928 ("But we have
never interpreted either the constitutional or statutory provisions relating to the
legislative preemption of municipal home rule powers to require that the
Legislature specifically state that the exercise of municipal power on a particular
subject is precluded."). We further reaffirmed in City of Palm Bay that the
language "except as otherwise provided by law" contained in the constitutional
provision "establishes the constitutional superiority of the Legislature's power over
municipal power." Id.
In sum, under this framework, "[I]egislative statutes are relevant only to
determine limitations of authority." City of Boca Raton v. State, 595 So. 2d 25, 28
(Fla. 1992) (quoting State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978)).
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Finally, we review questions of preemption and the validity of an ordinance de
novo. City of Hollywood v. Mulligan, 934 So. 2d 1238, 1241 (Fla. 2006).
Lt. D'Agastino contends that the PBR expressly preempts the CIP.
According to Lt. D'Agastino, the Legislature employed such explicit preemption
of the investigation of all complaints against law enforcement officers through the
first sentence of section 112.533(1), particularly through the inclusion of the words
"Every law enforcement agency ... shall establish ... a system," "which shall be
the procedure for investigating a complaint," and "notwithstanding any .. .
ordinance to the contrary":
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. (emphasis added).
Although one might fairly read that plain language as evincing intent for the
exclusivity of investigation of police complaints, it simply does not convey
preemption with the sufficient explicit language and clarity of intent that courts
have traditionally found necessary to be "express preemption" statutes in the past
cases. The fact remains that a finding of express preemption —that the Legislature
has specifically expressed its intent to preempt a subject through an explicit
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statement —is a very high threshold to meet. See Masone v. City of Aventura, 147
So. 3d 492, 495-97 (Fla. 2014) (express preemption found in language "no local
authority shall enact or enforce any ordinance on a matter covered by this chapter
unless expressly authorized" (quoting § 316.007, Fla. Stat. (2008))); see also §
166.044, Fla. Stat. (2002) ("No municipality may adopt any ordinance relating to
the possession or sale of ammunition."). For example, on the other hand, we have
previously acknowledged that the words "shall utilize" alone in a statute do not
necessarily express preemption. Mulligan, 934 So. 2d at 1244. Moreover, as the
CIP contends, one reading of the language "notwithstanding any ... ordinance to
the contrary" might be interpreted solely to limit a municipality's authority to alter
the procedures of the law enforcement agency pertaining to internal affairs
investigations of complaints rather than preclude the formation of a separate
procedure outside the agency.
Lt. D'Agastino further contends that two other sentences in section
112.533(1) sufficiently evince the requisite explicit intent. First, Lt. D'Agastino
relies on the language requiring a municipality to forward complaints to an
officer's employing law enforcement agency:
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.
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§ 112.533(1)(b)1., Fla. Stat. Second, Lt. D'Agastino refers this Court to the
exception carved out in the statute for the CJSTC: "This subsection does not
preclude the Criminal Justice Standards and Training Commission from exercising
its authority under chapter 943." § 112.533(1)(a), Fla. Stat.
Lt. D'Agastino's contentions with regard to these two additional provisions
are not without some merit and certainly provide some support for his contention
that the Legislature, through section 112.533(1), has expressly preempted the
investigation of complaints against officers to the officer's employing law
enforcement agency. However, to the extent the provision requiring forwarding of
complaints by a political subdivision can be understood as preclusive, it would
require an inference as it does not actually contain express language prohibiting
other investigations. Likewise, to find the language with regard to the CJSTC to
establish express preemption as to non -law enforcement agencies would also
require an inference because the CJSTC is considered a law enforcement agency.
See § 943.11(1)(a), Fla. Stat. (2008) ("There is created a Criminal Justice
Standards and Training Commission within the Depai tiiient of Law
Enforcement."). Thus, because Lt. D'Agastino's express preemption claim
requires certain inferences, it does not satisfy the test for express preemption. See
Mulligan, 934 So. 2d at 1243 ("Express pre-emption requires a specific statement;
the pre-emption cannot be made by implication nor by inference." (internal citation
- 22 -
omitted)); see also Phantom of Clearwater, Inc. v. Pinellas Cty., 894 So. 2d 1011,
1018 (Fla. 2d DCA 2005) ("Express preemption ... must be accomplished by clear
language stating that intent."); Edwards v. State, 422 So. 2d 84, 85 (Fla. 2d DCA
1982) ("An `express' reference is one which is distinctly stated and not left to
inference."). Therefore, although it is a very close question, we cannot hold that
section 112.533(1) contains language sufficient to establish express preemption
here.
However, as we have explained, Florida law also recognizes implied
preemption. Although implied preemption involving a municipality's home rule
powers may be disfavored, we must carefully consider the intent of the Legislature
with regard to preemptive operation even though it may not be expressly stated.
As with his express preemption argument, Lt. D'Agastino contends that the
Legislature has intended to preempt the investigation of all complaints against law
enforcement officers by requiring that they only be investigated by the employing
law enforcement agency. Although we agree with Lt. D'Agastino that section
112.533 evinces an intent to implicitly preempt a field, the field is much more
narrow than the expansive reading the officer desires.
The question of implied preemption contained in section 112.533(1) was
addressed by the Third District recently in Miami -Dade County v. Dade County
Police Benevolent Ass'n, 154 So. 3d 373 (Fla. 3d DCA 2014). There, the specific
- 23 -
issue before the district court was whether section 112.533(1) functioned to
implicitly preempt a report from the Miami -Dade Office of Inspector General
(OIG) that concerned some members of the Miami -Dade Police Depai Intent. Id. at
375. As the first part of its analysis, the district court recognized the field to be
preempted by the Legislature was that of discipline -related investigations. Id. at
379-80 ("Here, other than evidencing an intent to leave discipline related
investigations to a police officer's employing agency, no other intent is
evidenced."); cf. id. at 379 (noting in express preemption analysis that "while
section 112.533(1)(a) does require every law enforcement agency to establish a
`system' for receiving, investigating and determining complaints against law
enforcement officers and states that this system is to constitute 'the' procedure for
investigating complaints against law enforcement officers, it also makes clear that
this system is to be used for determining disciplinary action .... In fact, the PBR
taken as a whole focuses on an officer's rights during proceedings conducted by
his or her employing agency which might lead to discipline." (emphasis in
original)); Fraternal Order of Police v. Rutherford, 51 So. 3d 485, 487 (Fla. 1st
DCA 2010) ("We conclude that an investigation within the meaning of section
112.532(4)(b) occurs whenever a law enforcement or correctional officer faces
possible dismissal, demotion, or suspension without pay ...."). We agree with the
Third District panel in Dade County Police Benevolent Ass'n that there is a field
-24-
related to disciplinary investigations because as that court explained, the field of
disciplinary investigations is readily apparent throughout the text of the PBR. See,
e.g., § 112.532(1), Fla. Stat. (stating "[w]henever a law enforcement officer ... is
under investigation and subject to interrogation by members of his or her agency
for any reason which could lead to disciplinary action, demotion, or dismissal, such
interrogation shall be conducted under the following conditions"); § 112.532(4)(a),
Fla. Stat. (titled "Notice of Disciplinary Action"); § 112.532(5), Fla. Stat.
(providing that no law enforcement officer may be "discharged; disciplined;
demoted; denied promotion, transfer, or reassignment" in retaliation for exercising
his or her rights under the PBR); § 112.532(6), Fla. Stat. (titled "Limitations Period
for Disciplinary Actions"); 112.533(1)(a), Fla. Stat. (stating that after a complaint
is received for investigation by "the" procedure established by the PBR, a number
of requirements must be met "prior to the determination as to whether to proceed
with disciplinary action or to file disciplinary charges"); § 112.533(2)(a)1.-2., Fla.
Stat. (providing that complaints filed against law enforcement officers are
confidential until either the investigation is concluded with a finding "not to
proceed with disciplinary action or to file charges" or concluded with a finding "to
proceed with disciplinary action or to file charges"); § 112.535, Fla. Stat. (stating
that the PBR "shall not be construed to restrict or otherwise limit the discretion of
the sheriff to take any disciplinary action ... against a deputy sheriff, including the
- 25 -
demotion, reprimand, suspension, or dismissal thereof'). Further, consistent with a
preemptive field for disciplinary investigations, the PBR expressly contemplates a
distinction between disciplinary and criminal investigations. See § 112.533(2)(c),
Fla. Stat. ("Notwithstanding other provisions of this section, the complaint and
information shall be available to law enforcement agencies, correctional agencies,
and state attorneys in the conduct of a lawful criminal investigation.").
Moreover, the amendment history of section 112.533(1) confirms an
increasing effort to funnel complaints that could lead to discipline to the officer's
employing agency for investigation and interrogation.' Prior to 2003, section
112.533(1) provided in full:
(1) 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.
§ 112.533(1), Fla. Stat. (2002). Then, in 2003, the Legislature made the following
amendment:
(1) 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
9. None of the bill analyses from the Legislature concerning the relevant
amendments addressed the issue of external investigations.
- 26 -
ordinance to the contrary. This subsection does not preclude the
Criminal Justice Standards and Training Commission from exercising
its authority under chapter 943.
Ch. 2003-149, §2, at 3, Laws of Fla. The preemptive force in this new language is
notable when considering that the language "[t]his subsection does not preclude the
Criminal Justice Standards and Training Commission from exercising its authority
under chapter 943" was added simultaneously with the language "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." Id.
As further indication of its attempt to funnel investigations of misconduct by
police to the employing agency, in 2007, the Legislature amended section
112.533(1), requiring political subdivisions and any of their subcomponents to
forward complaints they initiate or receive to the employing agency:
(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. This subsection does not preclude the
Criminal Justice Standards and Training Commission from exercising
its authority under chapter 943.
-27-
(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 subparagraph, 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, depai tiiient,
district, institution, metropolitan government, municipality, office,
officer, public corporation, town, or village.
Ch. 2007-110, §2, at 2-3, Laws of Fla.
The CIP would have us end our inquiry here because it embraces the view of
the decision below that the CIP lacks any managerial or disciplinary authority
because it merely makes recommendations. Thus, the CIP contends that it does not
in any way interact with the field preempted by the PBR. We disagree.
A core component of the disciplinary investigations conducted by law
enforcement agencies arising from a complaint of alleged misconduct is the ability
to interrogate the subject officer. However, law enforcement agencies cannot
interrogate an officer by any means but must comply with the elaborate
interrogation framework of rights and obligations imposed by the Legislature in the
PBR. See § 112.532, Fla. Stat. (2008). Thus, by passing the PBR and devoting an
elaborate section of it to regulating these interrogations and conferring many rights
upon officers, it is plain that, in part, the objective of the PBR is to protect the
- 28 -
officers to a degree from certain means of interrogation. See, e.g., § 112.532, Fla.
Stat. ("Law enforcement officers' and correctional officers' rights. —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); id. at § 112.532(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 which could lead to disciplinary action,
demotion, or dismissal, such interrogation shall be conducted under the following
conditions") (emphasis added); id. at (1)(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.") (emphasis added); id.
at (5) ("RETALIATION FOR EXERCISING RIGHTS. —No law enforcement
officer or correctional officer shall be discharged; disciplined; demoted; denied
promotion, transfer, or reassignment; or otherwise discriminated against in regard
to his or her employment or appointment, or be threatened with any such treatment,
by reason of his or her exercise of the rights granted by this part.") (emphasis
added); § 112.533(3), Fla. Stat. ("A law enforcement officer or correctional officer
- 29 -
has the right to review his or her official personnel file at any reasonable time
under the supervision of the designated records custodian.") (emphasis added).
As a result, we cannot reconcile the CIP's subpoena power —as it pertains to
the officer under investigation —with the PBR. Any holding otherwise would
render the rights conferred upon officers by the PBR meaningless because the CIP
provides the police department with a mechanism to circumvent the operation of
the PBR's protective measures, ultimately rendering the PBR an initial
investigatory protection facade. Thus, to uphold the CIP's authority to issue
subpoenas to officers in connection with investigations of their conduct would
impermissibly countermand the rights conferred by the PBR upon the officer. See
City of Miami Beach v. Rocio Corp., 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981)
("An ordinance which supplements a statute's restriction of rights may coexist with
that statute ... whereas an ordinance which countermands rights provided by
statute must fail." (citations omitted)). Indeed, the power to issue a subpoena to a
citizen and to enforce it with the power of contempt is among the most powerful
tools a government may wield. Moreover, if we were to hold otherwise, nothing
would preclude the formation of other bodies similar to the CIP by other
governmental units with concurrent geographical jurisdiction over an officer, all
empowered with subpoena power and potentially subjecting an officer to repeated
- 30 -
governmental pressure over an extended time, rendering the limitations provision
in the PBR meaningless.
We therefore hold that the CIP's invocation of its subpoena power as applied
to police officers is unconstitutional because compelled interrogation of police
officers in investigations that could lead to their discipline is preempted by the
PBR. When confronted with an ordinance enacted pursuant to home rule authority
that operates in an unconstitutional manner, we have a duty to construe the
ordinance in a manner that maintains its constitutionality, if possible. See Rinker
Materials Corp. v. City of N. Miami, 286 So. 2d 552, 553 (Fla. 1973) ("Statutes or
ordinances should be given that interpretation which renders the ordinance valid
and constitutional."). Here, we need not sever the provisions granting the
subpoena power to ensure the CIP acts constitutionally. Instead, we find section
11.5-27(2) of the Miami Code of Ordinances is an adequate means of ensuring the
subpoena power, as it applies to non -officers, may continue to exist undisturbed:
"The purpose, powers, and duties of the CIP are to:... (2) Exercise its powers so
as to ... conduct its activities consistent with applicable law, including the Florida
Government in the Sunshine Law and with applicable law and labor contracts."
By its own ordinance, the CIP has a duty to conduct its activities consistent with
the PBR, which, as we hold today, precludes political subdivisions from issuing
subpoenas to law enforcement officers in connection with investigations of
- 31 -
complaints against them and precludes these other groups from compelling officers
to appear and testify before them.
We therefore quash the decision below to the extent that it affirmed the trial
court's order upholding the validity of the subpoena issued to Lt. D'Agastino and
denying Lt. D'Agastino a protective order.
While we do not comment on the policy merits of more or less civilian
oversight, we do recognize that law enforcement officers remain very much
exposed to public scrutiny despite our holding that the subpoena power of the CIP
is preempted. Specifically, officers, of course, remain subject to criminal
investigations, investigations conducted by their own agency, the State Attorney,
the FBI, and the United States Department of Justice. They are also subject to the
disciplinary investigations conducted by their own internal affairs department and
the CJSTC.
Further, to be clear, our holding today does not address any other functions
of the CIP in its mission of acting as an "independent citizens' oversight of the
sworn police department." Miami, Fla., Charter, § 51 (2012). For instance,
internal affairs investigations become public record once they are complete or are
no longer active. § 112.533(2)(a), Fla. Stat. As a result, the CIP has ready access
to all of the investigatory materials arising from the investigation conducted by
Internal Affairs. Thus, the subsequent review of an investigation of a complaint
- 32 -
against a law enforcement officer, without subpoena power, is not inconsistent
with the structure of the PBR.
For this reason, we also approve of the ultimate conclusion of the Third
District in Dade County Police Benevolent Ass'n that the Miami -Dade County
OIG report was not implicitly preempted by the PBR. 154 So. 3d at 380.
Consistent with our holding today, there "[n]o police officers were interviewed or
subpoenaed." Id. at 375. Instead, the OIG investigation "for the most part,
consisted of an audit of the County's own records, as well as some records from
the MDPD, [the private company allegedly giving benefits], and the U.S.
Immigration and Customs Enforcement Agency, and a few interviews of State
Department and American Airlines employees." Id. This type of reliance on
otherwise available information can easily be reconciled with the protections
conferred upon police officers in the PBR.
Due to the limited challenges presented, the limited nature of our holding
today, and the myriad of functions these varying non -law enforcement agency
boards perform, we reemphasize that our holding does not preclude future
challenges to other functions that might intrude on the field of disciplining officers,
or specific cases, including future matters concerning the CIP. Specifically, our
holding today is merely that the PBR preempts the authority of a political
subdivision as defined in section 112.533(1)(b) of the Florida Statutes, to compel
- 33 -
an officer to testify in connection with a complaint of misconduct through a
subpoena.
CONCLUSION
We quash the decision below to the extent it affirmed the CIP's authority to
issue a subpoena to Lt. D'Agastino. We remand to the district court for further
proceedings not inconsistent with this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and
LAWSON, JJ., concur.
PARIENTE, J., concurs with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I concur because the majority opinion is narrowly written to find only one
portion of the City of Miami Civilian Investigative Panel (CIP) ordinance
preempted by the Legislature through the Police Officers' Bill of Rights (PBR)
(§§ 112.531-.535, Fla. Stat. (2008)).10 Indeed, Justice Lewis, writing for the
majority, emphasizes the importance of the Municipal Home Rule Powers Act
10. I also recognize, as does the amicus in support of the City of Miami and
its CIP, the importance of the CIP to promote transparency and trust in the justice
system, which is an entirely different purpose than the legislative scheme for
uniformity in police internal investigations to protect the rights of our law
enforcement officers.
- 34 -
(§ 166.021, Fla. Stat. (2008)) and the general rule that legislative preemption
should be express. Majority op. at 16-19; see art. VIII, § 2(b), Fla. Const. I write
separately to reiterate that courts should narrowly approach concluding that a
municipal ordinance is unconstitutional based on implied legislative preemption
and to urge the Legislature to make its preemptive intent clear.
Unquestionably, article VIII, section 2(b), of the Florida Constitution grants
municipalities broad powers to govern "except as otherwise provided by law." The
"law" enacted by the Legislature recognizes the wide latitude granted to
municipalities to enact ordinances pursuant to the Home Rule Powers Act and
recognizes that the municipality has the power to act except with respect to "[a]ny
subject expressly preempted to state or county government by the constitution or
by general law." § 166.021(3)(c), Fla. Stat. (2008) (emphasis added);" see
majority op. at 16-17. If the Legislature intended to preempt the entire field of
investigation into potential police misconduct, the preferable course —which
appears to have been explicitly recognized by the Legislature, through its
enactment of the Horne Rule Powers Act —is that the Legislature should expressly
indicate such intent.
11. The current version of this statute is the same. See § 166.021(3)(c), Fla.
Stat. (2016).
- 35 -
As I previously explained, with the Home Rule Powers Act, the Legislature
"intended for municipal governments to have the power to enact local legislation
on the same subjects and to the same extent as the state government, except in
narrow circumstances where the Legislature has preempted a specific area of law
to the state or where the local law conflicts with state law." Masone v. City of
Aventura, 147 So. 3d 492, 503 (Fla. 2014) (Pariente, J., dissenting). Thus, I adhere
to my view that our recent jurisprudence "unnecessarily broadens the Court's
interpretation of legislative preemption, while, at the same time, limiting the home
rule authority granted to municipal governments by the Florida Constitution." Id.
at 499 (Pariente, J., dissenting).
Although the Home Rule Powers Act would appear to require a specific
statement by the Legislature indicating its intent to preempt local regulation in a
certain field, this Court has determined that preemption also occurs where it is
clear that the Legislature has preempted the field or topic through statutes. See
majority op. at 18. While express preemption is preferred because it ensures that
municipalities have clear direction on any subject matter where they are prohibited
from legislating, the Court has also recognized that a municipal ordinance
conflicting with the Legislature's clear regulation of a topic or field is prohibited.
As this Court unanimously held in 2006:
In Florida, a municipality is given broad authority to enact
ordinances under its municipal home rule powers. Art. VIII, § 2(b),
- 36 -
Fla. Const.; § 166.021(1), (3)(c), (4), Fla. Stat. (1999). Under its
broad home rule powers, a municipality may legislate concurrently
with the Legislature on any subject which has not been expressly
preempted to the State. Wyche v. State, 619 So. 2d 231, 237-38 (Fla.
1993) (citing City of Miami Beach v. Rocio Corp., 404 So. 2d 1066,
1069 (Fla. 3d DCA 1981)); see also Barragan v. City of Miami, 545
So. 2d 252, 254 (Fla. 1989) (stating that the municipal home rule
powers act "limits cities from legislating on any subject expressly
preempted to state government by general law"). "Preemption
essentially takes a topic or a field in which local government might
otherwise establish appropriate local laws and reserves that topic for
regulation exclusively by the legislature." Phantom of Clearwater,
Inc. v. Pinellas County, 894 So. 2d 1011, 1018 (Fla. 2d DCA 2005).
"Express pre-emption requires a specific statement; the pre-emption
cannot be made by implication nor by inference." Fla. League of
Cities, Inc. v. Dep't of Ins. & Treasurer, 540 So. 2d 850, 856 (Fla. 1st
DCA 1989) (quoting Bd. of Trs. v. Dulje, 453 So. 2d 177, 178 (Fla.
2d DCA 1984)); see also Phantom of Clearwater, Inc., 894 So. 2d at
1018 ("Express preemption ... must be accomplished by clear
language stating that intent."); Edwards v. State, 422 So. 2d 84, 85
(Fla. 2d DCA 1982) ("An `express' reference is one which is
distinctly stated and not left to inference."). However, "[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, 545 So. 2d at 254 (citing Tribune Co. v. Cannella, 458 So.
2d 1075 (Fla. 1984)).
City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) (footnote
omitted). Following the standard from Mulligan, the Third District determined that
"the PBR does not purport to expressly preempt other investigative bodies or
means of oversight" and therefore concluded that the CIP is not preempted by the
PBR. D'Agastino v. City of Miami, 189 So. 3d 236, 240, 243 (Fla. 3d DCA 2016).
Despite this Court's long-standing recognition of preemption by implication,
it is clear to me that implied preemption should be construed narrowly to comport
-37-
with the Home Rule Powers Act and the Florida Constitution. The test "is not
whether the Legislature has expressly authorized municipal power, but whether
such power has been expressly prohibited." City of Palm Bay v. Wells Fargo
Bank, N.A., 114 So. 3d 924, 929-30 (Fla. 2013) (Perry, J., dissenting); see City of
Ocala v. Nye, 608 So. 2d 15, 17 (Fla. 1992). Thus, as the majority recognizes,
courts should be "careful in imputing an intent on behalf of the Legislature to
preclude a local elected governing body from exercising its home rule powers."
Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d
826, 831 (Fla. 1st DCA 1996); see majority op. at 19.
We should primarily rely on the Legislature to express its preemptive intent,
when applicable, as it has in various contexts since enacting the Home Rule
Powers Act in 1973. See, e.g., § 24.122(3), Fla. Stat. (2016) (preempting matters
related to the state lottery); § 320.8249(11) (preempting regulation of mobile home
installers and installation); § 386.209 (preempting regulation of smoking). Indeed,
after this Court's decision in Masone regarding the use of red light cameras, the
Legislature enacted comprehensive legislation that included an express statement
of preemption. See § 316.0076 ("Regulation of the use of cameras for enforcing
the provisions of this chapter is expressly preempted to the state.").
Therefore, in this case, I agree that "compelled interrogation of police
officers in investigations that could lead to their discipline is preempted by the
- 38 -
PBR." Majority op. at 31. However, I continue to urge courts to take an extremely
narrow approach before concluding that a municipal ordinance is unconstitutional
based on implied legislative preemption, by giving due consideration to the broad
grant of authority to municipalities set forth in article VIII, section 2(b), of the
Florida Constitution and the extremely narrow exception to Home Rule Powers
Act set forth by statute. The best solution would be for the Legislature to include
an express statement of preemption when it, in fact, intends to preempt municipal
action.
Application for Review of the Decision of the District Court of Appeal — Direct
Conflict of Decisions
Third District - Case No. 3D10-2704
(Miami -Dade County)
Robert C. Buschel and Eugene G. Gibbons of Buschel Gibbons, P.A., Fort
Lauderdale, Florida; and Ronald J. Cohen of Rice Pugatch Robinson Storfer &
Cohen PLLC, Fort Lauderdale, Florida,
for Petitioners
Victoria Mendez, City Attorney, and John A. Greco, Deputy City Attorney, Miami,
Florida,
for Respondent City of Miami
Edward G. Guedes, John J. Quick, and Adam A. Schwartzbaum of Weiss Serota
Helfman Cole & Bierman, P.L., Coral Gables, Florida,
for Respondent City of Miami Civilian Investigative Panel
- 39 -
G. "Hal" Johnson, General Counsel, Florida Police Benevolent Association, Inc.,
Tallahassee, Florida; and Robert D. Klausner, Adam P. Levinson, and Paul A.
Daragjati of Klausner Kaufman Jensen & Levinson, Plantation, Florida,
for Amicus Curiae Florida Police Benevolent Association, Inc.
Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking, P.L., Coral
Gables, Florida,
for Amicus Curiae Florida Professional Firefighters, Inc., International
Association of Firefighters, AFL-CIO
Nancy G. Abudu of American Civil Liberties Union Foundation of Florida, Miami,
Florida; and Jeanne Baker of Jeanne Baker Attorney at Law, PA, Miami, Florida,
for Amici Curiae American Civil Liberties Union of Florida, Greater Miami
Chapter of American Civil Liberties Union of Florida, Miami -Dade Branch
of the National Association for the Advancement of Colored People, and
National Association of Civilian Oversight of Law Enforcement
- 40 -
ARTICLE II. - THE CITY OF MIAMI CIVILIAN INVESTIGATIVE PANEL
Sec. 11.5-26. - Created; established.
The Civilian Investigative Panel ("CIP") is hereby created and established.
(Ord. No. 12188, § 1, 2-14-02)
Sec. 11.5-27. - Purposes, powers and duties.
The purpose, powers and duties of the CIP are to:
(1) Act as independent civilian oversight of the sworn officers of the city's police department;
(2) Exercise its powers so as to not interfere with any pending or potential criminal investigations
or prosecutions and conduct its activities consistent with applicable law, including but not limited
to the Florida Government in the Sunshine Law, and with applicable labor contracts;
Engage the services of trained investigators and secure adequate training for its members,
including training in police policies and practices;
(4) Conduct investigations consistent with the procedures set forth in section 11.5-31, reviews,
inquiries, audits, and public hearings to make factual determinations, facilitate resolutions, and
propose recommendations as to disposition or other outcome to the police chief, city manager,
or, where appropriate, other city officials regarding:
a. Allegations of misconduct by officers of the city's police department;
b. Incidents of uses of force by officers of the city's police department resulting in death or
great bodily harm to a person, with the mandatory duty to automatically investigate police
shootings or other uses of force resulting in the death of a person; and
c. incidents, events, or systemic problems involving officers of the city's police department
that affect the community.
Promote community understanding and utilization of the process by which complaints are
submitted and reviewed or investigated by the CIP and/or the city's police department;
Forward complaints alleging criminal activity to the city's police department;
Request issuance of subpoenas after consultation with the state attorney of the Eleventh
Judicial Circuit in and for Miami -Dade County for the purpose of obtaining evidence from
witnesses and production of books, papers, and other evidence, which subpoenas shall be
signed, served, and enforced pursuant to applicable law, provided that no immunity be
conferred by the CIP, and further, that no actions of the CIP may interfere with any pending or
potential criminal investigation or prosecution;
(8) Make written recommendations to the police chief as to current and proposed city police
department policies, procedures, and practices concerning but not limited to training,
recruitment, and disciplinary procedures;
Issue reports, requests, and recommendations to the mayor, city commission, city attorney, city
manager, police chief, and the public concerning any matter within the CIP's authority;
(10) Establish, in collaboration with the executive director, written rules and standard operating
procedures for internal governance and standards for training for CIP members and staff; and
(11) Evaluate the performance of the executive director and of the independent counsel annually
pursuant to written criteria established by the CIP.
(3)
(5)
(6)
(7)
(9)
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-28. - Membership; qualifications; nomination of members; nominating committee;
appointment and filling vacancies; terms of office.
(a) Membership. The CIP shall consist of 13 members who should reflect the diversity of the city.
These 13 members shall be selected, approved, and appointed as follows:
(1) The city commissioners shall approve the appointment of ten members from a pool of
nominees selected and submitted by the CIP. These ten members shall include at least two
members from each of the five city commission districts who permanently reside in, own real
property in, or work or maintain a business in that city commission district.
(2) The mayor shall recommend two members from a pool of nominees selected and submitted by
the CIP for approval and appointment by the city commission. These two members shall
permanently reside in, own real property in, or work or maintain a business in the city;
The police chief shall appoint one member, who shall serve at the will of the police chief.
(3)
(b) Qualifications for members of the CIP.
(1) All members of the CIP shall be either permanent residents of the city, own real property in the
city, or work or maintain a business in the city, except for the appointee of the police chief, and
shall have good reputations for integrity and community service and shall have no record of a
felony conviction.
(2) No appointee to the CIP, nor any member of the appointee's immediate family, except for the
appointee of the police chief, shall be currently employed by the city nor be a sworn former
employee of the city's police department. No person who is currently, or has been previously, a
party or party's legal representative in litigation against the city may serve on the CIP for at least
two years from the conclusion of such litigation, including any appeals. The filing of a legal claim
or lawsuit against the city alleging liability of the city through actions of any police or other sworn
or enforcement personnel shall disqualify any person from serving on the CIP.
Upon assuming their duties, all members of the CIP shall complete training in ethics, conflicts
of interest, and the Florida Sunshine Law. All members of the CIP, except the appointee of the
police chief, shall also commit to complete Citizens Police Academy Training or approved
training through NACOLE (National Association of Citizens' Oversight of Law Enforcement) or
equivalent programs, unless the member has completed such training within one year prior to
appointment to the CIP.
(c) Nomination of members to fill vacancies.
(1) The CIP shall appoint a CIP nominating committee to solicit and screen applications for
vacancies, interview candidates, and select nominee(s) to submit to the CIP, which shall, upon
majority vote, submit nominations to the city commission for approval and appointment to fill
vacancies on the CIP pursuant to subsection 11.5-28(a) of the City Code.
(2) The CIP nominating committee shall solicit applications for vacancies on the CIP by
disseminating public notices in English, Spanish, and Creole throughout the community and
through the media and the city's NET Offices. In addition, applications may be submitted to the
CIP directly by members of the city commission and community based, civic, and social service
groups, leagues, and organizations, provided that any such application shall be evaluated
without regard to the individual or entity that solicited or submitted the application.
(d) Appointment of the CIP nominating committee.
(1) The CIP nominating committee shall be composed of five members of the CIP, with one
member representing each of the five city commission districts, except as set forth in subsection
(2)a. below. The nominating committee shall be appointed annually by the chairperson, subject
to approval by a majority vote of the CIP, to serve a one-year term, which term may be
extended if necessary to permit completion of the process described in subsection (c)(2) with
respect to a given set of vacancies.
(3)
(2) The CIP nominating committee shall reflect the diversity of the city.
a. In the event the CIP does not include at least one member representing each of the five
city commission districts, then the CIP shall fill vacancies on the nominating committee with
members of the general public who permanently reside in, own real property in, or work or
maintain a business in the unrepresented districts. To fill such vacancies, the CIP shall
solicit applications by disseminating public notices in English, Spanish, and Creole
throughout the community and through the media and the city's NET Offices with an
emphasis on the unrepresented district or districts. In addition, applications may be
submitted by community based, civic, and social service groups, leagues, and
organizations.
b. When the composition of the CIP includes at least two members from each of the five city
commission districts, any member of the nominating committee who is serving pursuant to
subsection (2)a. shall be replaced by a CIP member representing the same city
commission district.
(3)
No CIP member shall serve on more than two consecutive nominating committees.
(e) Appointment and filling vacancies by majority vote. The city commission shall approve and make all
appointments to fill any vacancies on the CIP (except the appointee of the police chief) by majority
vote exclusively from the nominations submitted to it by the CIP.
Terms of office. The terms of office of the members of the CIP appointed by the city commission
shall be for three years and shall be unaffected by the terms of the mayor and city commissioners.
No CIP member shall serve more than two consecutive three-year terms, provided that such CIP
members may continue to serve until their successors have been appointed but in no event for more
than two additional months.
(f)
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 12315, § 1, 1-23-03; Ord. No. 12379, § 1, 6-12-03; Ord.
No. 13186, § 1, 6-24-10; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-29. - Officers.
The CIP shall elect, by majority vote, from its members, a chairperson, vice -chairperson, and such
other officers as deemed necessary. The chairperson of the CIP shall have the power to appoint, with the
approval by majority vote of the CIP, all members serving on the various committees that the CIP may
establish from time to time.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-30. - Meetings, quorum and voting; attendance requirements; parliamentary procedures and
rules of procedure; recordation.
(a)
Meetings, quorum and voting. All meetings of the CIP shall be open to the public. The chairperson
or three members of the CIP may call a meeting, provided that the meeting is noticed for at least
seven days prior to the meeting date and pursuant to the provisions set forth in section 11.5-36. A
quorum shall consist of seven members of the CIP. An affirmative vote of not less than 51 percent of
the members present and voting at any meeting is required for any action to be taken by the CIP
unless otherwise set forth herein.
(b) Attendance requirements. The provisions set forth in section 2-886 of this Code shall apply to all
members of the CIP.
(c) Parliamentary authority and rules of procedure. The parliamentary authority of the CIP shall be
Robert's Rules of Order (Current Edition) unless the CIP adopts its own order of business and rules
of procedure governing its meetings, and actions on matters within its jurisdiction, not inconsistent
with the provisions set forth herein, which rules of procedure shall be filed with the city clerk. Copies
of minutes of all CIP meetings shall be furnished to the mayor, commissioners, city manager, city
attorney and chief of police.
(d) Recordation. The CIP shall be responsible for the recordation and transmittal of its minutes and may
request the city clerk to carry out recordation functions.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-31. - Procedures for investigation of direct filed cases, investigation, or review of internal
affairs' closed cases; timeframes for and completion of investigations and reviews; review of police
policies, procedures, and practices; and issuance of reports.
The following procedures shall be followed:
(1) Directly filed cases. Complaints concerning allegations of police misconduct, police uses of
force, or other matters pertaining to repeated issues of police misconduct may be directly filed
with the CIP by anyone, including a member of the CIP or its staff.
a. All complaints shall be reduced to writing using a form approved by the CIP for that
purpose;
b. The police department shall be notified of complaints received by the CIP within two
working days;
c. All complaints must be submitted within a year of the date of the incident or event, or within
one year of the complainant becoming aware of the systemic problem, giving rise to the
complaint. Complaints filed more than one year thereafter may, however, be accepted by
the CIP only if approved by a majority vote of its members.
(2) Investigation or review of CIP cases.
a. Investigation of directly filed cases. Investigation of complaints directly filed with the CIP
shall proceed as follows:
1. Where a directly filed complaint involves potentially criminal conduct by a police
officer, the CIP may proceed with an investigation upon receipt of a written
determination by its independent counsel, who shall be required to consult with the
appropriate prosecutorial agencies, that such an investigation will not interfere with
any pending or potential criminal investigation or prosecution. A decision of the CIP to
proceed with such an investigation may be challenged by any prosecutorial agency
engaged in investigating or prosecuting the same matter by seeking a judicial order.
Written notification of such a legal challenge shall stay the CIP's investigation for 48
hours permitting the prosecuting agency to obtain such a judicial order.
2. Upon determination by the executive director, in consultation with the independent
counsel as needed, that a directly filed complaint does not involve potentially criminal
conduct by a police officer, or upon the independent counsel's written determination
that a CIP investigation will not interfere with any pending or potential criminal
investigation or prosecution, the CIP may proceed with an independent investigation
of the complaint in accordance with the time frames specified in subsection (3) below.
b. Police use of force involving death or great bodily harm to a person. Upon a written
determination by the independent counsel that an investigation will not interfere with any
pending or potential criminal investigation, and without waiting for the conclusion of any
internal affairs' investigation, and, further, regardless of whether any allegation of
misconduct is made, the CIP must automatically commence an independent investigation
into any incident in which a police shooting or other uses of force resulted in death of a
person and may commence an independent investigation into any use of force resulting in
great bodily harm to a person.
c. Investigation or review of internal affairs closed cases. The close-out reports of all
investigations of police misconduct conducted by internal affairs of the city's police
department shall be transmitted to the CIP within three working days of the police chiefs
final decision. Thereupon, internal affairs shall make its entire investigative file available to
CIP staff for inspection and copying. The CIP may then proceed to conduct either an
independent investigation of the matter or a review of the internal affairs' file, in accordance
with the time frames specified in subsection (3) below.
d. Notice of commencement. Affected officers, and complainants shall be notified of the
commencement of the CIP's investigation or review.
(3) Timeframes for investigations and reviews. The following timeframes shall govern the
investigation or review process:
a. Upon determination that a directly filed complaint does not involve potentially criminal
conduct by a police officer, the CIP's investigation must commence within ten working days
of the filing of the complaint and must be completed and presented to the members of the
CIP for their final consideration at a regular or special meeting within 180 days of the
investigation's commencement.
b. With respect to directly filed complaints that involve potentially criminal conduct by a police
officer, the following timeframes shall apply:
1. Within three working days of the filing of such complaint, the CIP shall forward the
complaint to the city's police department.
2. Within three working days of the filing of such complaint, the CIP shall forward the
complaint to its independent counsel.
3. The independent counsel shall, within ten working days of receiving the complaint,
provide the CIP with a written determination as to whether its independent
investigation of the complaint will interfere with a pending or potential criminal
investigation or prosecution.
4. If the independent counsel's written determination is that the CIP's independent
investigation will not interfere with a pending or potential criminal investigation or
prosecution, the CIP's investigation must commence within seven working days of the
receipt of that determination and must be completed and presented to the members of
the CIP for their final consideration at a regular or special meeting within 180 days of
the investigation's commencement.
c. With respect to internal affairs' closed cases, the following timeframes shall apply:
1. The executive director must decide within ten working days of receipt of the internal
affairs' close-out report and access to the internal affairs' investigative file whether to
conduct an independent investigation of the matter or a review of that file.
2. Where the executive director's decision is to independently investigate the matter,
such investigation must be completed and presented to the CIP for its final
consideration at a regular or special meeting of the CIP within 180 days of the
investigation's commencement.
3. Where the executive director's decision is to review the file, such review must be
concluded and presented to the CIP for its final consideration at a regular or special
meeting of the CIP within 60 days of the review's commencement.
d. If the CIP fails to complete its investigation or review within these timeframes, the CIP's file
on the complaint shall be closed as out -of -time. However, in the case of a directly filed
complaint, the CIP may extend the timeframe for the investigation to be completed and
presented to the CIP for its final consideration by 60 days after receipt of the internal
affairs' investigative file.
(4) Standards for CIP consideration of completed investigation or review. In its consideration of a
completed investigation or review, the CIP's proceedings shall be as informal as is compatible
with the essential requirements of law, and shall not be governed by courtroom rules and
procedures. Further, strict rules of evidence, as in courts of law, shall not apply and evidence is
to be admitted at the discretion of the chairperson. However, fundamental due process shall be
observed and shall govern the proceedings and pertinent information shall be considered for the
purposes of providing substantial justice for all parties.
Results of investigation or review. Upon presentation to the CIP of the results of an
investigation or review, the CIP may:
a. Remand the matter to the executive director for further investigation or review, the results
of which are to be presented to the CIP for its consideration at its next regular meeting.
b. Render one of the following findings based on the preponderance of evidence:
1. Unfounded where the investigation or review shows that the act or acts that provide
the basis for the complaint did not occur or were misconstrued;
2. Exonerated where the act or acts that provide the basis for the complaint occurred,
but the investigation or review shows that such acts were proper;
3. Not sustained where the investigation or review fails to disclose sufficient facts to
prove or disprove the claim(s) made in the complaint;
4. Sustained where the investigation or review discloses sufficient facts to prove the
claim(s) made in the complaint;
5. No finding where the executive director recommends summary disposition of the
complaint for such reasons as the complainant failed to produce information to further
the investigation; the investigation or review revealed that another agency was
responsible and the complaint has been referred to that agency; the complainant
withdrew the complaint; the complainant is unavailable to clarify the complaint; or the
officer is no longer employed by the city.
c. Formulate recommendations to the police chief as to disposition, including
recommendations as to training of police officers, revision of city police department policies
or procedures, or where a complaint has been sustained, consequences for the subject
officer(s).
d. Place an officer who has been the subject of three or more complaints within the past year
on a monitoring list accessible to the public.
(6) Notification of results of investigation or review. At the conclusion of its investigation or review,
the CIP shall forward its findings and recommendations in writing to the police chief, all affected
officers, and complainants and, where appropriate, to the mayor, city manager, and/or city
commission, to which the police chief must respond to the CIP in writing within 45 days,
explaining why the CIP's recommendations were or were not accepted.
Review of police policies, procedures, and practices.
a. The CIP may, at any time, review and make written recommendations to the police chief as
to current city police department policies, procedures, and practices concerning but not
limited to training, recruitment, and disciplinary procedures to which the police chief must
respond to the CIP in writing within 45 days explaining why the CIP's recommendations
were or were not accepted.
b. Whenever the police chief proposes to revise established city police department policies,
procedures, or practices, the police chief must transmit the proposed revisions to the CIP
45 days prior to implementation, except if an emergency requires a more expeditious
(5)
(7)
implementation. Within 30 days of the receipt of the proposed revisions, the CIP may make
written recommendations to the police chief as to those revisions, to which the police chief
must respond to the CIP in writing within 45 days, explaining why the CIP's
recommendations were or were not accepted.
(8) Issuance of reports. The CIP may, when appropriate, issue reports, which may contain
requests and recommendations, concerning any matter within the CIP's authority, to the mayor,
city commission, city attorney, city manager, police chief, and the public, to which the
appropriate official must respond in writing within 45 days, explaining why the CIP's requests or
recommendations were or were not accepted.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-32. - Subpoena power.
(a) The CIP may subpoena witnesses and documents as part of any independent investigation, review,
inquiry, audit, or public hearing it conducts, as follows:
(1) A request for a subpoena must be reviewed by the CIP independent counsel; for compliance
with legal requirements and the appropriateness of issuance of the subpoena. Further, in cases
that involve criminal conduct by a police officer, the independent counsel must consult with the
state attorney of the Eleventh Judicial Circuit in and for Miami -Dade County as to whether the
issuance of the subpoena will interfere with any pending criminal investigation or prosecution.
(2) After receiving advice from its independent counsel as to whether a requested subpoena
complies with legal requirements and is appropriate to issue, and in cases that involve
potentially criminal conduct of a police officer, after receiving the independent counsel's advice
as to whether the subpoena will interfere with any pending or potential criminal investigation or
prosecution, the CIP may issue the subpoena upon approval of a majority of its seated
members.
(b) The subpoena shall be valid only within the jurisdictional limits of the city. However, the CIP may
seek enforcement and extraterritorial domestication of its subpoenas in accordance with general law.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-33. - Procedures related to city employees and witnesses.
(a)
When a city employee appears before the CIP in response to a subpoena, such employee shall be
formally advised prior to the commencement of testimony that if the employee has a good -faith belief
that the testimony would tend to be self -incriminating, and if, in reliance upon that good -faith belief,
the employee declines to answer any question, that the employee's decision not to provide testimony
will not subject him or her to any adverse employment consequences. Any employee who, after
receiving such advice, decides to testify or provide evidence, must sign a statement acknowledging
that the employee understands the advice and is testifying or providing evidence voluntarily and
knowingly.
(b) A police officer who is the subject of an investigation shall be informed of the nature of the
investigation and provided with a copy of the complaint prior to being interrogated.
(c) A person who appears before the CIP in response to a CIP request for testimony may be
represented by counsel or any other representative of his or her choice, which representative may be
present at all times during the subjects appearance before the CIP.
(d) The CIP may hold evidentiary hearings requiring witnesses in the manner set forth in section 11.5-
30. Only the subject of the complaint, witnesses, their attorneys or representatives and CIP members
may participate in evidentiary hearings.
(e) Policies and procedures shall be established to ensure compliance with Chapters 112 and 119 of
the Florida Statutes and any other applicable laws.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-34. - Executive director; independent counsel; assistance from city officials.
(a) Executive director.
(1) The CIP office shall be headed by a full-time professional executive director with education or
experience in criminal justice who is appointed by and subject to removal by the CIP, with the
approval of the city commission. The executive director, serving as the CIP's chief executive
officer, shall oversee the operations of the CIP and shall perform the following specific duties:
a. Recruit, hire, supervise, terminate, and make all other employment decisions regarding
investigators and administrative staff;
b. Ensure that all members of the CIP receive training in ethics, conflicts of interest, the
Florida Sunshine Law, and the opportunity to attend a police policies and procedures
program as set forth in subsection 11.5-28(b)(3);
c. Establish priorities and objectives for the CIP;
d. Manage the implementation and evaluation of the CIP's functions;
e. In collaboration with the members of the CIP, establish written rules and standard
operating procedures for internal governance and standards for training for CIP members
and staff; and
f. In collaboration with the members of the CIP, promote community understanding and
utilization of the process by which complaints are submitted and reviewed or investigated.
(2) The executive director's performance shall be evaluated annually by the CIP pursuant to
written criteria established by the CIP.
(b) Independent counsel.
(1) The CIP shall hire an experienced and competent attorney -at -law in good standing admitted to
the practice of law in the State of Florida for at least seven years and generally knowledgeable
in municipal law as independent counsel with the approval of the city commission. The CIP shall
have the power to remove the independent counsel with the approval of the city commission.
The independent counsel shall provide legal advice and assistance to the CIP as requested and
shall perform the following specific duties:
a. Issue written determinations, after consulting with the appropriate prosecutorial agencies,
as to whether an investigation by the CIP of a directly filed complaint involving potential
criminal conduct will interfere with any pending or potential criminal investigation or
prosecution;
b. Review CIP requests for subpoenas for compliance with legal requirements and the
appropriateness of issuance of the subpoena; in cases that involve potentially criminal
conduct by a police officer, issue written determinations after consultation with the
appropriate prosecutorial agencies as to whether the issuance of the subpoena will
interfere with any pending or potential criminal investigation or prosecution; and advise the
CIP of the results of such review and consultation.
c. Prepare subpoenas as directed by the CIP in accordance with subsection 11.5-32(b).
(2) The independent counsel's performance shall be evaluated annually by the CIP pursuant to
written criteria established by the CIP.
(c) Assistance from city officials. When requested by the CIP, the city manager, city attorney, and city
clerk shall provide full cooperation and assistance to the CIP, but are not required to attend its
meetings. The city clerk and the city attorney may conduct annual workshops to advise the CIP of
the procedural laws and regulations related to public records, the Sunshine Law, and any other
requirements.
(Ord. No. 13688, § 2, 6-8-17)
Editor's note— Ord. No. 13688, § 2, adopted June 8, 2017, amended section 11.5-34 in its
entirety to read as herein set out. Formerly, section 11.5-34 pertained to administrative
assistance; independent counsel, and derived from Ord. No. 12188, § 1, adopted February 14,
2002.
Sec. 11.5-35. - Review and approval of annual budget.
(a)
The CIP shall be operated on an annual budget that shall be no less than one percent of the
approved regular salaries and wages line item of the city's police department general fund budget
except as otherwise required by the city manager's declaration of a fiscal emergency, financial
urgency, or financial emergency. The CIP shall submit to the city commission, in a form acceptable
to the city manager, and no later than April 1 preceding the commencement of each fiscal year, a
CIP budget request detailing how the CIP will spend its budgeted allotment. The city manager shall
assign appropriate personnel to assist in the preparation of the budget for the CIP and provide
administrative support to the CIP. Nothing contained herein shall be construed to prohibit the CIP
from submitting a supplemental budget and appearing before the city commission to request
approval.
(b) No expenditure shall be made in any given year without approval by the city commission of the CIP
budget for that year and all expenditures shall comply with city procedures for acquisition of goods
and services.
(c) No provision contained in this chapter shall be construed to violate the Anti -Deficiency Act, as set
forth in sections 18-500 through 18-503 of this Code.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-36. - Notices and filing of records.
Notice of meetings shall be posted by the city clerk at city hall and other appropriate locations after
being apprised by the CIP of an upcoming meeting(s). Advertisements of meetings shall be posted on the
city's website no less than seven days prior to the meeting. It shall be the duty of the city clerk to comply
with applicable laws related to filing of records.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)
Sec. 11.5-37. - Annual reports.
The CIP shall, at least annually, provide a report in writing to the city manager, the city commission,
the police chief and the mayor, to include statistics and summaries of the results of the CIP's
investigations and reviews, a comparison of those results with the actions taken by the police chief, any
recommendations related to changes in policies and procedures and any recommended changes to this
chapter.
(Ord. No. 12188, § 1, 2-14-02; Ord. No. 13688, § 2, 6-8-17)