I. Overview

In enacting the Florida Public Whistleblower’s Act (“FPWA”), the legislature intended to prevent retaliatory actions against employees and persons who make certain disclosures to an appropriate agency. The FPWA is remedial and should be given liberal construction. SeeIrven v. Dep’t of Health and Rehabilitative Servs., 790 So.2d 403, 406 (Fla. 2001). The statute does not provide for suit against persons in their individual capacity. DeArmas v. Ross, 680 So.2d 1130 (Fla. 3d DCA 1996).

A. Elements of the Claim

A prima facie claim of whistleblower retaliation consists of three elements, much like a retaliation claim under Title VII:

  • Plaintiff engaged in a statutorily protected disclosure;
  • Plaintiff suffered an adverse employment action; and
  • There is a causal connection between the two events.

Fla. Dep’t of Children & Families v. Shapiro, 68 So. 3d 298, 305-06 (Fla. 4th DCA 2011).

  1. Protected Activity

There are two types of disclosures protected under the FPWA:

  • A violation or suspected violation of law committed by another employee, agent of an agency, or independent contractor, which creates and presents a substantial and specific danger to the public’s health, safety, or welfare.
    • Stat. § 112.3187(5)(a).
  • An act or suspected act 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, agent of an agency, or independent contractor.
    • Stat. § 112.3187(5)(b).

         2. Adverse Action

The FPWA defines adverse action broadly, much like Title VII and other employment statutes. Any action that adversely alters the terms and conditions of the employee’s employment, such as dismissal, discipline, demotion, denial of raises or bonuses, transfers, etc., qualifies as an adverse action.

Fla. Stat. § 112.3187(3)(c).

  1. Causal Connection

Again, much like other employment laws, the causation requirement is broadly construed, requiring only that the protected activity and the adverse action are not completely unrelated. The employee must show that the person taking adverse action had knowledge of the protected activity and there must be some temporal proximity between the two events. Fla. Dep’t of Children & Families v. Shapiro, 68 So. 3d 298, 305-06 (Fla. 4th DCA 2011).

B. Defenses

If the employee satisfies these three elements of a prima facie case under the FPWA, the employer may rebut that case by proffering a legitimate, non-retaliatory reason for its actions. The employee then bears the ultimate burden of demonstrating that the employer’s proffered reason is mere pretext for unlawful conduct.Rice–Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1133 (Fla. 4th DCA 2003).

If the employee is obligated to comply with pre-suit administrative procedures, as will be discussed below, a state court action must be brought within 180 days of an administrative decision. Fla. Stat. § 112.3187(8)(a).

If the employee is not obligated to comply with pre-suit administrative procedures, the state court action must be brought within 180 days of the alleged adverse action. Fla. Stat. § 112.3187(8)(b).

C. Fees

For an employer to recover attorney’s fees in an FPWA action, the employer must demonstrate that the employee’s claim was frivolous, unreasonable or without foundation. Again, this is the same standard that applies in Title VII and other employment claims. Anderson v. City of Crystal River, Florida, 219 Fed. Appx. 901 (11th Cir. 2007)

II. Procedural Requirements – Conditions Precedent

A. Pre-suit Notice is NOT Required

The pre-suit notice requirements of Fla. Stat. § 768.28 do not apply to claims under the FPWA. The courts have refused to apply the requirements of § 768.28 because the FPWA was intended to be a “stand-alone statutory scheme,” similar to the Florida Civil Rights Act,containing its own administrative pre-suit notice requirements other conditions. Department of Education v. Garrison, 954 So.2d 84 (Fla. 1st DCA 2007).

B. Administrative Remedies

  1. When Required

Where a local government authority has established, by ordinance, an administrative procedure for handling whistleblower complaints, or has contracted with the Division of Administrative Hearings, a public employee must file a complaint within 60 days of the adverse action.

Fla. Stat. § 112.3187(8)(b).

The board must consist of impartial persons appointed by the appropriate local governmental authority to make findings of fact and conclusions of law for a final decision by the local governmental authority.

Fla. Stat. § 112.3187(8)(b).

Browne v. City of Miami, 948 So.2d 792, 793 (Fla. 3d DCA 2006)

Although an employee can challenge the sufficiency of the panel before which an employer asserts an administrative claim should be filed, if ordinances governing the panel meet the FPWA requirements – such as the time for filing the administrative complaint and the adverse actions the panel has authority to review – the employee will be bound to comply with pre-suit administrative requirements.

  1. What Qualifies as an Appropriate Ordinance

Julian v. Bay County Dist. School Bd., 189 So.3d 310 (Fla. 1st DCA 2016)

The FPWA explicitly requires that the administrative review procedure be established by ordinance. However, the First District Court of Appeals recently affirmed summary judgment in favor of the employer because the employee did not exhaust administrative remedies, despite the fact that the review procedures were adopted by policy. Because the employer, a county school board, had the authority to adopt ordinances by passing school board policies, the adoption of an administrative review ordinance via policy complied with the FPWA’s requirements. Relying on an opinion from the Attorney General, the court concluded that the Board had the right to take the legislative type action to adopt the school board policy as an ordinance for the more orderly and efficient operation of the district school system.

  1. Special Considerations for Probationary Employees –

Bridges v. City of Boynton Beach, 927 So.2d 1061 (Fla. 4th DCA 2006)

It is important for employers to consider the unique circumstances of probationary employees as it applies to administrative procedure. In many circumstances, a probationary employee is not able to avail him- or herself of administrative procedures by virtue of the terms of a under collective bargaining agreement or other limitations. In such cases, an employer will not be able to invoke the defense that the employee failed to exhaust administrative remedies. On the other hand, the employee would also be barred from making an argument for equitable tolling of the statute of limitations as he or she fruitlessly attempts to proceed with administrative review.

C. When Administrative Remedies Are Not Required

  1. Advisory Review Boards

UJCIC v. City of Apopka, 581 So.2d 218 (Fla. 5th DCA 1991)

An advisory review board that lacks authority to render a binding decision does not qualify as an appropriate review panel under the FPWA. In such a case, the employee is not required to exhaust administrative remedies and can file an action in circuit court immediately. The Fifth District Court of Appeals ruled in favor of the employee in such a case because the policies governing the Advisory Review Board did not specify the Board’s duties, powers, or functions so it was unclear if the Board had the authority to render a binding decision.

  1. Review Panels that Do Not Comply with FPWA Requirements

Burden v. City of Opa Locka, 2012 WL 4764592 (S.D. Fla. 2012)

To qualify as an appropriate administrative procedure of which an employee must avail him- or herself, the procedure must be (1) created by ordinance; (2) must provide for the complaint to be heard by a panel of impartial persons, properly appointed by the local authority; (3) who are empowered to “make findings of fact and conclusions of law for a final decision by the local governmental authority.” Importantly, whether an appropriate administrative procedure exists is a question of law. Fla. Stat. § 112.3187(8)(b).

In Burden v. City of Opa-Locka, a recent comprehensive FPWA case from the Southern District of Florida that will be discussed shortly in more detail, the employer raised a preliminary argument that the employees’ claim should be barred because they did not file a complaint with the city’s civil service board (“CSB”). Because the ordinances governing the CSB did not allow for review of all adverse actions encompassed by the FPWA and because the ordinances required a much shorter time period to file a complaint, 5 days as compared to 60 under the FPWA, it did not meet the administrative requirements of the FPWA. The employees therefore were not required to exhaust administrative remedies prior to filing suit.

III. Methods of Engaging in Protected Activity

Under the FPWA, there are five (5) methods by which an employee can engage in protected activity:

  1. Disclosure of information on the employee’s own initiative in a written and signed complaint;
  2. Participation in an investigation, hearing, or other inquiry conducted by an agency or federal government entity;
  3. Refusal to participate in any adverse action prohibited by this act;
  4. Initiation of a complaint through the whistleblower’s hotline or the hotline of the Medicaid Fraud Control Unit of the Department of Legal Affairs; or
  5. Filing any written complaint to the employee’s supervisory officials, to the Chief Inspector General in the Executive Office of the Governor, to the employee designated as agency inspector general under § 112.3189(1), or to the Florida Commission on Human Relations.

This presentation will focus on the requirements for disclosure under the first two (2) methods and the significant body of case law interpreting those requirements. Regardless of the method by which a local government employee discloses misconduct, the disclosure must be made to an appropriate official.

A. Appropriate Officials for Disclosure

The FPWA requires that local governmental employees make their whistleblower disclosures to the CEO of the agency or “other appropriate local officials.” Fla. Stat. § 112.3187(6). The statute does not define who an appropriate official might be. However the Attorney General has issued several advisory opinions defining such an official as one who is empowered to investigate complaints and make reports or recommend corrective action. This definition is not limited to particular individuals but can encompass a governing body as well, such as a city’s ethics commission or a county’s inspector general.

  1. Chief Executive Officer

The Chief Executive Officer is defined as “the person, whether elected or appointed, who is responsible to the legislative body of the public employer for the administration of the governmental affairs of the public employer.” Fla. Stat. § 447.203(9).

  1. Other Appropriate Local Officials

    i. Opinions From the Florida Attorney General

Through various advisory opinions, the Florida Attorney General has adopted an expansive definition of an appropriate local official, such as:

  •  A Board of Directors: Fla. Att’y Gen. Op. 2012-20 (2012);
  • A County Ethics Commission: Fla. Att’y Gen. Op. 2010-48 (2010);
  • A County Inspector General: Fla. Att’y Gen. Op. 99-07 (1999).

ii. Federal Agencies

Quintini v. Panama City Housing Authority, 102 So.3d 688 (Fla. 1st DCA 2012)

A former maintenance worker for the Panama City Housing Authoritywrote a written complaint to the United States Department of Housing and Urban Development (“HUD”) where he alleged that he was not being paid at the same rate as other maintenance workers.The employee did not submit this complaint to anyone at the Housing Authority including the Authority’s executive director, its board of directors, or to any other local governmental official or employee. He was subsequently laid off and filed suit under the FPWA, asserting that he had been fired in retaliation for his disclosure to HUD.

The Housing Authority’s summary judgment was affirmed because although Quintini made a written disclosure, he did not disclose to an “other appropriate local official”. § 112.3187(6) uses the word “however” evincing different disclosure requirements apply when disclosures concern a local government entity. A local government entity disclosure is protected only if it is reported to the entity’s CEO or other appropriate local official. At the time, there was no other Florida appellate court interpreting the phrase “other appropriate local official.” Therefore, the First District looked to the AG Opinions for guidance. The common element in the AG opinions is that the person or entity deemed to be an “other appropriate local official” was affiliated with the local government in some way. The First District held that HUD was not an “appropriate local official” because HUD, a federal agency, was not affiliated with the Housing Authority, a local government entity, in any way.

iii. Florida Commission on Human Relations

Tillery v. Florida Dept. of Juvenile Justice, 104 So.3d 1253 (Fla. 1st DCA 2013)

Over a month after Tillery was fired from the DJJ, Tillery filed a letter with the Commission, asserting that the DJJ violated the FPWA by terminating him because of a prior whistle-blower disclosure he had made regarding the DJJ’s lying and covering up racial comments in the workplace. The letter was signed, listed the name and contact of his attorney, and requested full relief. However, Tillery did not identify to whom he reported the prior disclosure to or when the prior disclosure was reported.

The Commission was unable to take action because the facts Tillery pleaded in the complaint did not adequately describe the facts in the previous whistle-blower disclosure; Tillery offered nothing to show that he made the prior disclosures to an appropriate authority. Tillery failed to allege when or to whom he made the prior whistle-blower disclosures. The complaint did not did not meet the prima facie elements necessary to initiate operation of the FPWA. The dismissal was therefore affirmed.

Stanton v. Florida Dept. of Health, 129 So.3d 1083(Fla. 1st DCA 2013)

In his complaint, Stanton alleged that he reported his Program Director/Regional Coordinator and Supervisor/Health Center Administrator’s misuse of funds in writing. Retaliation ensured, following an internal investigation, which consisted of a hostile work environment that followed Stanton through multiple transfers and ultimately resulted in his termination.

The Commission was unable to take action regarding Stanton’s letter, describing his initial protected disclosure, because Stanton failed to plead specific facts to support his allegation that the DOH’s negative employment action was motivated by his disclosures. There was no proof of causation and no factual basis that the adverse action was motivated by Stanton’s disclosure. Moreover, the complaint failed to demonstrate that the supervisor to whom Stanton disclosed the alleged unlawful behavior possessed the necessary authority to investigate the matter as mandated by § 112.3187(6). Because of the conclusory allegations in the complaint, dismissal was affirmed.

iv. Supervisors Empowered to Investigate or Take Corrective Action

Saunders v. Hunter, 980 F.Supp. 1236 (M.D. Fla. 1997)

Saunders, a female corrections officer, worked for Sheriff Donald Hunter as a certified corrections officer; she was one of two female officers at the Collier County Drill Academy. The Defendants also worked under Sheriff Hunter. Specifically, Commander Russ Howald, Lieutenant Jim Hansen, and Sergeant Joe Jones supervised Saunders at the academy; the other two Defendants were co-workers. Saunders sent an anonymous letter to the Professional Response Bureau (“PRB”) to report the improper instruction and Lieutenant Hansen’s refusal to pay overtime. After Saunders admitted to writing the letter, she experienced retaliation from her supervisors and co-workers in the form of sexual harassment, deprivation of an across the board pay raise of five percent and was given a less than satisfactory evaluation where Hansen referenced her sexual harassment complaint. In addition, Lieutenant Hansen purposefully failed to submit Saunder’s letter of intent requesting admission into the Law Enforcement Academy purposefully, saying that he would do everything in his power to preclude her from attending the Academy. Soon after, Saunders requested a transfer to the jail.  A PRB representative interviewed Saunders about the transfer, asked her inappropriate questions, and told her that she should quit.

Saunders sued her supervisors and co-workers for violations of the FPWA and sexual harassment. She claimed that she was retaliated against for disclosing sexual harassment, falsification of time cards, and unpaid overtime wages through the proper chain of command and to the PRB. The Defendants argued that Saunders did not allege a protected activity, exhaustion of administrative remedies, and that she personally complained to Sheriff Hunter.

The Middle District found that her allegations described actions protected by the statute, citing Fla. Stat. §§ 112.3187(5)(a), (b). The Court concluded that it did not matter that the Sheriff’s investigation had to be completed within 45 days and that the investigation into Saunders was not completed when she filed her Complaint because Saunders alleged that she attempted to exhaust her administrative remedieswith PRB. The Court accepted her factual allegations as true regarding department policies, comparing the administrative remedies available to her with the illusory and non-binding remedies described in UJCIC.

Saunders did not report the incidents to the CEO or even Sherriff Hunter, but Saunders did report the behavior to her supervisors. The Court held that her supervisors were appropriate local officials because the Sergeant, Lieutenant, and Commander were the policy makers in the sheriff’s department. The Middle District cited to the AGO advisory opinions.

v. Supervisors Lacking Power to Investigate or Take Corrective Action

Campbell v. Lee County, 2015 WL 1220329 (M.D. Fla. Mar. 17, 2015)

Campbell was a crew leader for County’s Department of Transportation when he became aware of “mismanagement of public funds, gross inequities in personnel decisions and extensive age discrimination.” Campbell offered written statements to news media and voiced concerns to his superiors at the County. Less than two weeks after releasing the statements, Campbell was fired.

The City challenged the first prong of the prima facie case, arguing that Campbell, as an employee of a local government entity, did not make a protected disclosure because his superiors did not qualify as the County’s CEO or other appropriate local official. Campbell reported the City’s mismanagement and misconduct to his “superiors.” The Middle District looked to Quintini, opining that an “other appropriate local official” must be affiliated with the local governmentand empowered to investigate complaints, make reports, and recommend corrective action. However, Campbell did not identify his superiors or allege that his superiors had the authority to investigate, report, and recommend. Accordingly, Campbell’s FPWA Count was dismissed because he did not plead a prima face case.

vi. State Agencies with Authority Over Local Government

Harris v. District Board of Trustees of Polk Community College, 9 F.Supp.2d 1319 (M.D. Fla. 1998)

The two coordinators of Polk Community College’s criminal justice program were fired after reporting irregularities and deviations from established law and policy mismanagement concerning the operation of a community college’s criminal justice training program. The coordinators first sent a memorandum to the Department’s criminal justice manager describing the violations; he did not respond. Then, the coordinators sent the same memorandum to the FDLE, who began an investigation into the program.

The College filed a motion to dismiss for failure to plead a prima facie Whistle-blower’s case against them. The College argued that the FDLE was not an “other appropriate local official.” However, the Middle District held that FDLE was an “other appropriate local official” because it had administrative authority over the College’s training program. Fla. Stat § 943.03 confers jurisdiction of the FDLE upon the Division of Criminal Justice Standards and Training which certifies schools to conduct such training programs; the FDLE is responsible for administration of criminal justice schools and is empowered to certify and revoke certification of officers, instructors, and schools. This Court found that an “appropriate local official” is not limited to a county or municipal officer.

Other courts have not followed this decision, including the First District in Quintiniwho said thata state agency cannot be an appropriate localofficial because it would be inconsistent with the plain language of Fla. Stat. § 112.3187(6). Furthermore, the First District distinguished the facts of the case in Quintini, pointing out that HUD was a federal agency and therefore had no administrative or enforcement power over the Housing Authority.

vii. Miscellaneous Cases

Castro v. Sch. Bd. of Manatee City, Fla., 903 F.Supp. 2d 1290 (M.D. Fla. 2012)

Castro presents a unique case in which the employee, a school psychologist, alleged not only that he disclosed misconduct to an appropriate official, but also that he refused to comply with allegedly unlawful acts. The employee alleged that the school board fired him for complaining about the implementation of the PS/RtI process.[1] The School Board moved for summary judgment, which was granted because Castro’s complaint did not meet the prima facie elements necessitated by the FPWA.

First, the employee claimed that the email he sent to a representative in the Office of Special Education and Rehabilitative Services with the U.S. Department of Education asking for guidance concerning the implementation of PS/RtI was a FPWA-protected disclosure. However, the court held that the email was not a protected correspondence because it was addressed to an official with the federal Department of Education – not a local School Board official. In addition, the employee did assert statutory violations; he only requested advice regarding PS/RtI.

Second, the employee claimed that the written complaint he submitted to the School Board Director of Human Relations, where he complained that he had been forced to retire as a result of refusing to follow illegal orders given out by his supervisor, was a FPWA-protected disclosure. The Court held that the disclosure was not protected by the FPWA because it did not allege that the School Board was violating any laws that would present a substantial and specific danger to the public’s health, safety, or welfare. Fla. Stat. 112.3187(5)(a). Additionally, he filed this complaint after he had already been notified that he would not be reappointed for the following school year. Because neither of his complaints amounted to protected activity and each occurred after he was notified of his non-reappointment, precluding a causal connection, he failed to establish a prima facie case of retaliation under the FPWA.

B. The Writing Requirement

To be entitled to whistleblower protection under methods 1 and 5, the employee must submit a written complaint.

  1. Documentation

Walker v. Florida Dep’t of Veterans’ Affairs, 925 So.2d 1149 (Fla. 4th DCA 2006)

The purpose of the written complaint requirement is to document what the employee disclosed and to whom the employee disclosed it, thus avoiding issues regarding proof.

In Walker, the court held that the employee failed to comply with the writing requirement when submitting two invoices that were allegedly evidence of misconduct. The invoices failed to document the nature of the wrongdoing they allegedly evinced and did not identify the person to whom they were allegedly disclosed.

  1. Signed Letters

Hutchison v. Prudential Ins. Co. of Am., Inc., 645 So. 2d 1047, 1050 (Fla. 3d DCA 1994)

Complaints must be signed to comply with the writing requirement. As long as the allegations are in writing and it specifies who is making the complaint and to whom the complaint is directed, the writing will be protected under the FPWA.

In Hutchinson, the employer tried to argue that a signed letter was not a written and signed complaint within the meaning of the FPWA. The court disagreed because the letter met the liberal writing requirements of the FPWA, which did not require a specific format for a complaint, other than that it be written, signed, and identify to whom it was directed.

  1. Anonymous Letters

Shaw v. Town of Lake Clarke Shores, 174 So. 3d 444 (Fla. 4th DCA 2015)

Anonymous letters do not comply with the writing requirements of the FPWA. An unsigned letter raised issues of proof regarding the identity of the whistleblower at the time the disclosure is made.

In Shaw, the employee tried to argue that his subsequent participation in an investigation during which he disclosed himself as the author brought him within the protection of the FPWA. However, the court disagreed as the employee’s allegations regarding what was actually disclosed in the investigation were too vague to qualify as statutorily protected.

C. Participation in Investigations

Disclosures, even when not written down, are protected when the employee is requested to participate in an investigation, hearing, or other inquiry conducted by an agency or federal government entity. There is no need for a formal written complaint in these instances. SeeFla. Stat. § 112.3187(7).

Importantly, these disclosures must still be made to an appropriate official. Two recent cases, Burden v. City of Opa Locka and Rustowicz v. North Broward Hospital District both expanded the definition of an appropriate official while addressing FPWA claims arising from an employee’s participation in an investigation.

Burdenv. City of Opa-Locka, 2012 WL 4764592 (S.D. Fla. 2012)

The Southern District of Florida’s decision in Burden provides a comprehensive analysis of many aspects, substantive and procedural, of an FPWA claim. This case is also the most recent decision to provide detailed analysis of disclosures that arise when employees participate in investigations of misconduct.

In Burden, several city employees filed suit claiming, in relevant part, that they suffered various adverse actions in retaliation for their participation in a “confidential inquiry” regarding misconduct by the Opa Locka Police Chief. Several of the plaintiffs were interviewed as a part of the “confidential inquiry”, one was a member of the panel charged with conducting the “confidential inquiry”. The City made several substantive arguments challenging the merits of the FPWA claim, including a claim that the employees did not engage in any protected disclosure because their disclosures were not made to the chief executive officer of the City or another appropriate local official. SeeFla. Stat. § 112.3187(6).

The court disagreed, holding that since the City Manager empowered the members of the “confidential inquiry” panel to investigate, disclosures made to the members of the inquiry were appropriate local officials. The Florida Attorney General has issued several advisory opinions stating that a local official empowered to investigate complaints and make reports or recommend corrective action will qualify under the statute.Because the individuals were “requested to participate in an investigation, hearing, or other inquiry conducted by any agency” their disclosures to the confidential inquiry panel were made to appropriate officials under the FPWA. Importantly, the “participation” clause by which public employees participate in investigations of misfeasance and malfeasance DO NOT require a written disclosure. This is contrary to the requirements for “spontaneous” disclosures through which an employee volunteers the information on his or her own accord.

The City was therefore denied summary judgment on many of the employees’ claims. Only those employees who did not disclose any mismanagement by Chief Cason were dismissed. Notably, the employee that was a member of the “confidential inquiry” was considered to have engaged in protected activity but her claim failed for lack of temporal proximity between the participation and the later adverse action.

Rustowicz v. North Broward Hospital District, 174 So. 3d 414 (Fla. 4th DCA 2015)

Rustowicz was initially hired as an executive secretary in the internal auditing department. After the department director eliminated her position, she was reassigned to a new position of audit associate but performed many of the same tasks. In the course of her tasks, Rustowicz discovered that the Hospital District had paid a relocation bonus to a new CEO who, after leaving the Hospital District for another job after approximately two years, had never actually relocated to Broward County for the position. She reported this to her department director who instructed her to investigate further expenditures.

As a result of her investigation, she discovered three significant violations of law and many other violations of the Hospital District code of conduct. Rustowicz submitted a report to her supervisor, the audit committee, and the board of directors. Media leaks regarding the investigation caused significant tension and stress within the audit department, causing flare ups of Rustowicz’s Crohn’s disease. She utilized all of her FMLA leave and additional medical leave offered by the Hospital District as a result of these flare ups. The Hospital District then began to create significant difficulties for Rustowicz and attempted to bar her from returning to work. After several months of conflict, she was informed that her position was eliminated but she could apply for other positions. Despite applying to four different positions, Rustowicz was never rehired.

The trial court granted summary judgment after concluding Rustowicz did not submit a written complaint within the meaning of the FPWA nor made protected disclosures to the CEO or other appropriate local official. On appeal, the Fourth DCA held that the written complaint requirement did not apply to Rustowicz in these circumstances because she made her protected disclosures during the course of an investigation in which her participation was requested. This holding followed the same reasoning as the Burden court, refusing to apply the writing requirement to employees who participate in investigations. To require an employee participating in an investigation to also submit a signed written complaint would create a chilling effect on employee’s willingness to fully participate in such investigations.

Moreover, the audit committee that supervised her qualified as an appropriate local official to whom she could make the disclosure under the FPWA because the audit department has the authority to investigate violations of the law and take corrective action. The Fourth DCA thus adopted the position of the advisory opinions from the Attorney General that state disclosure does not have to be made to a particular individual. This holding greatly expanded the definition of an appropriate official under the FPWA. Following Rustowicz, protection now extends to disclosures to members of boards, committees, departments, or divisions affiliated with the governmental entity, so long as the board, committee, etc. has the authority to investigate, police, manage, or otherwise remedy the wrongful conduct by the violating entity.

Turning to the issue of causation, the Fourth DCA further rejected the Hospital District’s argument that lack of temporal proximity (10 months) between the disclosure and Rustowicz’s termination precluded a finding of causation. Due to a high amount of turnover in the audit department as a result of the turmoil caused by Rustowicz’s investigation, the new audit department director was informed of Rustowicz’s disclosure less than one month before the director decided to eliminate her position. The temporal proximity inquiry does not focus on the time between when the protected disclosure actually occurred and when the adverse employment action occurred, but the time between when the decision maker learned of the disclosure and when the adverse action occurred. Because Rustowicz was able to produce sufficient evidence calling into question the veracity of the new director’s assertions that she was unaware of Rustowicz’s participation in the audit, this also created an issue of fact regarding pretext that was sufficient to overcome summary judgment.

IV. Practice Tips for Municipal Attorneys

A. Ensure Rules Governing Administrative Hearing Boards Comply with FPWA Requirements

As mentioned earlier, the Burden court rejected the City of Opa-Locka’s argument that the plaintiff’s claim was barred for failure to exhaust administrative remedies. This holding was based on the fact that rules governing the CSB did not afford the administrative rights guaranteed under the FPWA.

The FPWA requires that an administrative board to whom a complaint of retaliation is made have the authority to investigate and make a final determination regarding the violation. It must also have the authority to review all adverse actions encompassed by the FPWA, including loss of benefits, reassignments, reduction in hours, and other adverse changes to the terms and conditions of employment beyond the more common forms of discipline such as reprimands, suspensions, and terminations. Lastly, the FPWA guarantees a 60-day statute of limitations from the date of the adverse action for an employee to file an administrative grievance.

Municipalities should review their administrative procedures to ensure that administrative review boards comply with these requirements. If not, the employee does not have to pursue administrative remedies and instead has 180 days to file suit directly in circuit court.

B. Be Cognizant of Florida Sunshine Laws in Making Designations

As was noted by one of the Attorney General Opinions, stating that a board of directors may be designated as an appropriate official to receive whistleblower complaints, such boards may be subject to the open meeting requirements of  §286.011, Florida Statutes. The FPWA does not provide an explicit exemption to the open meeting requirement, despite the fact that the Act calls for confidentiality of the whistleblower’s name and information learned in the course of a whistleblower investigation. There must be an independent basis for a board or committee to be exempt from the open meeting requirements to preserve confidentiality. It may be inadvisable to designate a board or committee subject to open meeting requirements as an appropriate official to receive whistleblower complaints.

Fla. Att’y Gen. Op. 2012-20 (2012)

C. Proper Documentation of Discipline is Necessary.

Like any other personnel action claim, the best defense is to have a legitimate basis for adverse employment action. This is mandatory when the employee has engaged in statutorily protected speech.

D. Establish Internal Complaint Procedures.

Vital to any successful policy in order to avoid litigation is to structure the process. Not only is it important to define who qualifies as an appropriate local official, but it should be published and publicized to employees. This will ensure consistency within the government entity.

E. Consider Initiating a Separate, Independent Investigation if an Employee Makes a Statement or Complaint During an Investigation that Qualified as a Protected Disclosure.

During an investigation, potentially protected disclosures may be made. It is important to have a designated individual within the local investigative body to determine if a separate investigation should be initiated. Encouraging trained and designated personnel to conduct an impartial, comprehensive investigation is key. Having centralized information from a designated decision-maker will help ensure the process moves smoothly.

F. Do Not Ignore or Ostracize Persons Who are Aware of Misconduct.

It is essential that the written procedures assure employees who make disclosures. Sometimes, avoiding a whistleblower may be an incidental consequence related to the disclosure or related investigation. Both in policy and in its execution, fairness must be promoted.

[1] PS/Rtl is the Department of Education’s general education initiative known as the Problem Solving Response to Intervention, which evolved from school reform and legislation including No Child Left Behind and the Individuals with Disabilities Education Act. Specifically, PS/RtI is the change in behavior or performance as a function of an intervention; a multi-tiered approach in order to provide services and interventions to students.