IN THE SUPREME COURT OF FLORIDA. Petitioner, CASE NO. SC ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL

Transcription

1 IN THE SUPREME COURT OF FLORIDA ROBERT J. CROUCH, vs. Petitioner, CASE NO. SC THE PUBLIC SERVICE COMMISSION, STATE OF FLORIDA, Respondent. / ON REVIEW FROM THE FIRST DISTRICT COURT OF APPEAL PETITIONER=S BRIEF ON JURISDICTION Marie A. Mattox MARIE A. MATTOX, P.A. 310 East Bradford Road Tallahassee, FL (850) ATTORNEYS FOR PETITIONER TABLE OF CONTENTS

2 Page TABLE OF CITATIONS...iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 4 JURISDICTIONAL STATEMENT... 5 CONFLICTS WITH HOLDINGS OF THIS COURT... 5 CONCLUSION... 9 CERTIFICATE OF SERVICE APPENDIX ii

3 TABLE OF CITATIONS Page Cases: Crouch v. PSC, So.2d, 2005 WL (Fla. 1 st DCA 2005)... 1 Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000)... 4, 6 Irven v. Department of Health and Rehabilitative Services, 790 So. 2d 403 (Fla. 2001)...4, 6, 7 Martin County v. Edenfield, 609 So. 2d 27 (Fla. 1992)... 4, 6 Statutory and Rule references: ' , et seq., Florida Statutes...1, 3, 4, 5, 7 iii

4 STATEMENT OF THE CASE AND FACTS Petitioner seeks review of the decision of the First District Court of Appeal, Crouch v. PSC, So.2d, 2005 WL (Fla. 1 st DCA 2005), affirming the trial court=s narrow reading of ' et seq., Florida Statutes, the Public Whistleblower=s Act. Petitioner, a Professional Engineer, was originally employed by the Respondent, Public Service Commission (PSC) as an engineer supervisor in He remained employed with the Respondent as a supervisor until he was given the option of being fired or resigning on November 9, He resigned under threat of termination. Prior to Crouch=s forced resignation, he reported misfeasance, malfeasance and/or gross misconduct by his supervisor, Marshall Willis, to higher level supervisory employees within the Respondent. Specifically, in April, 2001, Crouch reported to the Division Director of the Division of Economic Regulation within the Respondent, Tim Devlin, and to the Deputy Division Director, Richard Tudor, that Marshall Willis injected his personal bias against a utility and unlawfully fined that utility one-half of the utility owner=s salary when there were no facts supporting the penalty. Crouch further reported that a quality of service recommendation that was exclusively the function of the engineering section had been assigned by Willis to the accounting section under Willis and that the engineering recommendation, the only one supported by fact, was ignored or designated as the Aalternative recommendation@ rather than as the Aprimary recommendation@ to the PSC. 1

5 Crouch told both Tim Devlin and Richard Tudor that his supervisor, Marshall Willis, lied in order to convince the PSC to impose the penalty on the utility, Keen Sunrise. At that time, Crouch=s intention was to report malfeasance, misfeasance or gross misconduct by his supervisor to Tim Devlin and Richard Tudor and to initiate some type of investigation into Willis= actions. Both Devlin and Tudor had the ability to correct the actions of Willis that Crouch reported and they had the authority to investigate Crouch=s allegations. Both Devlin and Tudor also had the ability to stop the penalty assessment against Keen Sunrise before it came to a vote before the PSC. After reporting Willis= action to both Devlin and Tudor, with no action taken to correct Willis= actions against Keen Sunrise, in the June/July, 2001 time period, Crouch went higher up the chain of command and reported the acts of malfeasance, misfeasance or gross misconduct by Marshall Willis to the Executive Director of the PSC, Bill Talbott. Talbott was the Anumber one person under the five Commissioners themselves.@ Crouch approached Bill Talbott, just like he had Tim Devlin, about the actions of Marshall Willis in order to initiate some kind of an investigation into Willis= actions against Keen Sunrise. Instead, on November 9, 2001, Crouch was advised by Bill Talbott and Marshall Willis if he did not immediately submit his resignation, he would be fired. Before Petitioner was forced to resign, one of the supervisors to whom Crouch reported Willis= wrongdoing, Tim Devlin, went to the Inspector General of the PSC, John Grayson, and advised him that Crouch was making an accusation against Marshall Willis being biased 2

6 against Keen Sunrise. Grayson thereafter initiated an investigation. 1 After his forced resignation, Crouch filed suit against the Respondent under ' , the Public Whistleblower=s Act, claiming that he was fired in retaliation for blowing the whistle on his supervisor. Trial commenced on October 18, 2004 and the trial judge Aassumed that the plaintiff has proved that there has been either malfeasance or misfeasance if, again, taking the case in the light most favorable to the plaintiff, a public official at the Public Service Commission indicated that they intended to >get the utility.=@ The trial judge then concluded that even though Crouch met the requirements of ' (5), Florida Statutes, he failed to meet the requirements of '' (6) and (7), Florida Statutes. Before the District Court, Petitioner argued that his verbal complaints made to high level supervisors up his chain of command, who took those complaints to the inspector general, were sufficient to invoke the protections of the Public Whistleblower=s Act. He argued that even through his complaints to his supervisors were not in writing, because his complaints were taken to the agency inspector general by at least one of those supervisors, that was sufficient to invoke the Act=s protections. The District Court disagreed and narrowly construed ' (7) to require that Crouch=s complaints to his supervisory officials be in writing even though these same 1 This was a disputed fact during the trial. 3

7 supervisory officials told the designated agency inspector general of Crouch=s complaints. The District Court also concluded that even though the supervisors told the designated agency inspector general about Crouch=s complaints, since Crouch did not ask his supervisors to submit the complaints on his behalf and no promise was made by the supervisors that they would do so, the Whistleblower=s Act provided Crouch no protection. SUMMARY OF ARGUMENT The decision below expressly and directly conflicts with this Court=s holdings in Martin County v. Edenfield, 609 So. 2d 27 (Fla. 1992), Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000) and Irven v. Department of Health and Rehabilitative Services, 790 So. 2d 403 (Fla. 2001). The decision below narrowly construed ' to prevent the protection of an employee who reported under ' (7) to supervisory officials, who told the agency inspector general of the employee=s complaints, and the employee was forced to resign thereafter. Although there was no writing to the supervisory officials to whom the disclosures were made, the intent of ' to encourage the elimination of public corruption by protecting public employees who >blow the whistle= is frustrated by the District Court=s ruling. The District Court failed to construe the statute liberally in favor of granting access to the remedy by requiring a writing when the agency inspector general actually received the employee=s complaints and began an investigation thereon. JURISDICTIONAL STATEMENT 4

8 Discretionary jurisdiction lies in this case to review decisions of the district court that expressly and directly conflict with the rulings of the Florida Supreme Court on the same issue of law. Fla.R.App.P (a)(2)(A)(iv); also Article V, '3(b)(3), Fla. Const. ARGUMENT CONFLICTS WITH HOLDINGS OF THIS COURT This Court has established a fundamental principle that ' , as a remedial act, should be construed liberally in favor of granting access to the remedy. In three cases, this Court has carefully explained the doctrine of liberal construction in cases brought under ' This Court first embraced the doctrine of liberal construction in Martin County v. Edenfield, 609 So. 2d 27 (Fla. 1992) and said Awe believe it clear that the [public employee] Whistle-Blower=s Act is a remedial statute designed to encourage the elimination of public corruption by protecting public employees who >blow the whistle.= As a remedial act, the statute should be construed liberally in favor of granting access to the remedy.@ Id. at 29. Later, in Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000), this Court rejected the Respondent=s argument that the Act should be strictly construed because it was in derogation of the common law. This Court held that when a statute is both in derogation of the common law and remedial in nature, the rule of strict construction should not be applied as to frustrate the legislative intent. Id. at 566 n. 4. Instead, the statute should be construed liberally in order to give effect to the legislation. Id. More recently, in Irven v. Department of Health and Rehabilitative Services, 790 5

9 So. 2d 403 (Fla. 2001), this Court again said that the Whistleblower=s Act should be liberally construed. The public employee Whistle-blower Act is a Aremedial statute designed to encourage the elimination of public corruption by protecting public employees who >blow the whistle=. As a remedial act, the statute should be construed liberally in favor of granting access to the remedy.@ Id. at , quoting Martin County v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992). Irven held: Id. at 406. In overturning the district court=s narrow interpretation of ' , this Court in A [T]he Act provides that an employee may bring an action when the whistleblowing concerns A[a]ny... suspected violation of any... law, rule, or regulation committed by an employee or agent of an agency,@ or with respect to A[a]ny... suspected act of... misfeasance... or gross neglect of duty committed by an employee or agent of an agency.@ If the plain meaning of this section leaves any doubt as to the inclusiveness of this right of action and the broad protections afforded, the Legislature also provided that it is Athe intent of the Legislature to prevent agencies... from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office... or any other abuse... on the part of an agency, public officer, or employee.@ The statute could not have been more broadly worded.@ (Emphasis supplied). The doctrine of liberal construction means that if there is any possible, reasonable way to read a statute as granting access to the remedy, that interpretation must be chosen over others. The District Court=s decision in this case violates that principle. The requirement of liberal construction requires the judge to be an umpire who resolves 6

10 arguable procedural calls in favor of the plaintiff. In no instance does the law allow the judge to suit up to play goalie for the defendant=s team, which is the result under the District Court=s decision in this case. The reason that the Legislature choose not to require a writing requirement for complaints to the agency inspector general is that the inspector general has departmentwide authority and specialized investigative skill. Many supervisors, especially those at the lower levels, do not have the authority or the skill to handle whistleblower complaints and investigations. There are policy reasons for whistleblower complaints to be in writing to supervisors so that they can be passed on to the right hands. State employees are located all over the State and inspector generals are in Tallahassee. Thus, the absence of a writing requirement for complaints that reach the agency inspector general is a practical means of furthering the interest of getting whistleblower investigations moving without technical impediments. By ruling that complaints reaching the inspector general through an Aintermediary@ do not count unless the complaining employee has specifically directed the complaint to be passed on, the District Court has effectively eliminated unwritten complaints under the statute for all but those few employees in the immediate work environment of the inspector general. The District Court=s ruling repeals part of a legislative enactment by inventing new conditions and writing them into the statute by judicial fiat. Taxpayers are not served by the concealment of government waste, 7

11 mismanagement, fraud and other illegalities. Instead, the purpose of the statute is to facilitate the timely investigation of these complaints and to protect those persons who take risks to protect the taxpayers and citizens of this State. The writing requirement for complaints to most supervisors is there to combat predictable denials and misrepresentations by those who are often themselves involved in the offenses and to insure that action is taken on these complaints. The purpose of the requirement is not to test the skill of complaining employees at threading small needles and jumping through hoops in sequence. The dispositive fact in the present case is that the Petitioner=s complaint got to the inspector general and it got there through the instrumentality of the complainant. It does not matter whether it arrived by intermediary, orally, in writing, by carrier pigeon, or satellite. Nor does it matter what instructions, if any, the complainant gave to the messenger who conveyed the complaint. Government whistleblowers are acting for the public as well as for themselves and whether the claim has merit and it timely is the only policy issue that should be considered. When a complaint actually gets to the right place, it is of no consequence that it passed through the wrong hands or was in the wrong form or that a low-level employee improperly failed to Ainstruct@ a higher level official on how to convey it. CONCLUSION For the foregoing reasons, the Court should exercise its jurisdiction to review this case. 8

12 Respectfully submitted, Marie A. Mattox [FBN ] MARIE A. MATTOX, P.A. 310 East Bradford Road Tallahassee, FL (850) (telephone) (850) (facsimile) ATTORNEY FOR PETITIONER CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to the attorney identified below by United States Mail this day of December, 2005: Jason C. Taylor McFARLAIN & CASSEDY, P. A. Post Office Box 2174 Tallahassee, FL Marie A. Mattox 9