Public Whistle-Blower's Act: the Fourth District Court of Appeal continues to follow trend in expanding scope of retaliation claims.

• Author: Dunn, Lindsey L.
• Position: Labor and Employment Law

A recent decision from the Fourth District Court of Appeal continues the existing trend of courts broadly interpreting provisions in anti-retaliation laws, particularly with respect to whom and in what manner a disclosure under the Public Sector Whistle-Blower's Act may be made. (1) After a brief overview of the act's requirements, this article addresses a recent decision of the Fourth District Court of Appeal and its practical application.

The act was enacted with the intent to prevent retaliatory action against employees and persons who make certain disclosures to an appropriate agency. (2) Unlike other anti-retaliation statutes, such as Florida's Private Sector Whistle-Blower's Act or Title VII, the act specifically limits what type of information constitutes a protected disclosure, and not every disclosure will be protected by the act. (3) To be covered by the act, an employee must disclose actual or suspected violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public's health, safety, or welfare; or acts or suspected acts of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse; or gross neglect of duty committed by an employee or agent of the agency. (4)

* Basic Requirements of the Act --The act sets forth several specific requirements regarding the types of disclosures protected, to whom those disclosures must be made, and the manner in which a remedy must be sought. (5) Under Florida law, before a public-sector employee (6) can file a lawsuit claiming a violation of the act, that employee must first exhaust all available administrative remedies. (7) If a plaintiff complies with the exhaustion requirements, the inquiry then proceeds to the substance of the claims. The elements for a cause of action for retaliatory discharge under the act are: 1) The plaintiff engaged in statutorily protected disclosure; 2) the plaintiff suffered an adverse employment action; and 3) there is some causal connection between the two events. (8) Because Florida applies a Title VII analysis to retaliatory discharge claims under this statute, the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. (9)

* To Whom Information Must Be Disclosed--In order to constitute a protected disclosure under the act, an employee must disclose certain information to a particular entity or agency. (10) For disclosures concerning a local governmental entity, (11) a focal point of this article and of a recent opinion by the Fourth District Court of Appeal, the information must be disclosed to a "chief executive officer" as defined in [section]447.203(9) (12) or "other appropriate local official." (13) For all disclosures other than those involving a local governmental entity, the information must be disclosed to any agency or federal governmental entity having the authority to investigate, police, manage, or otherwise remedy the violation or act. (14)

While few courts have addressed who may be considered an appropriate local official to whom protected disclosures concerning local governmental entities may be made, the Florida Attorney General's Office has issued a number of advisory opinions concerning this provision of the act. The advisory opinions of the attorney general determined that a transit authority's board of directors, a county's inspector general, and a town's ethics commission qualified as "other appropriate local official[s]" under the statute. (15) The common element in these opinions is that the person or entity deemed to be an "appropriate local official" was affiliated with the local government in some way. (16) Significantly, the Florida attorney general found individuals to be appropriate local officials when they were empowered to investigate complaints and make reports or recommend corrective action. (17)

The federal district courts that have been presented with this issue have, similar to the Florida attorney general's opinions, afforded a liberal construction as to who may be considered an appropriate local official under the act. (18) One case out of the Southern District of Florida, which discusses whether an employee's disclosure was made to an appropriate local official under the act, is Burden v. City of Opa Locka, 2012 WL 4764592 (S.D. Fla. 2012). In Burden, one of the plaintiffs, Burden, the deputy chief of police for the Opa Locka Police Department, was asked to participate in a confidential inquiry of the department initiated by the city manager. (19) When interviewed as part of the inquiry, Burden expressed concerns that the department was disorganized, its procedures outdated, and discipline was inconsistently handled, attributing the problems to the police chief. (20) Analyzing the "participation in an investigation" portion of [section]112.3187(7), the federal trial court ruled that disclosures made pursuant to an investigation or inquiry need not be made via written and signed complaints or on the initiative of the one disclosing. (21)

Until a recent decision from the Fourth District Court of Appeal in July 2015, only a handful of Florida's appellate courts had discussed, but not specifically defined, who is considered an appropriate local official as provided for in [section]112.3187(6). (22) In discussing whether the federal Department of Housing and Urban Development (HUD) was an "other appropriate local official" under the statute, the First District Court of Appeal analyzed the opinions of Florida's attorney general and noted "[t]he common element in these opinions is that the person or entity deemed to be an 'appropriate local official' was affiliated with the local government in some way." (23) The court found that, since the plaintiff reported to a federal department, and his complaint was regarding a city's housing authority, his disclosure was not made to an appropriate local official. (24) If the employee had complained to a state or local agency that was empowered to investigate the plaintiff's complaint or recommend corrective action, however, the outcome may have been different. (25) When presented with a case under the act involving an alleged protected disclosure to an appropriate local official, the Fifth District Court of Appeal summarily concluded that the personnel to whom the disclosures were made did not fall within the scope of the statute without identifying who those individuals were or analyzing the individuals' positions under the act. (26)

Recent Opinion of the Fourth District Court of Appeal

In Rustowicz v. North Broward Hospital District, 2015 WL 3996953 (Fla. 4th DCA July 1, 2015), (27) the plaintiff employee filed suit against her employer, a hospital created by special taxing district legislation, alleging her employment as an audit associate was terminated in violation of the act. (28) In this case, the employer's business affairs are managed by a board of commissioners and chief executive officer. An internal...