Legal Report, January 2020

General Counsel, Keith Davis

1. Igwe v. City of Miami, 2019 Fla. App. LEXIS 19042 (Fla. 3d DCA 2019). Administrative proceedings, futility.
Victor Igwe (“Igwe”), served two four-year terms as the Independent Auditor General (“IAG”) for the City of Miami (“City”). During this time, Igwe cooperated with the Securities and Exchange Commission (“SEC”) in investigating the City. After Igwe’s second term expired, the City terminated his employment. Igwe filed suit alleging that he had been illegally terminated in violation of Florida’s Whistleblower Act because of his cooperation with the SEC pursuant to § 112.3187, F.S. The Whistleblower Act requires that a claimant exhaust all administrative remedies before filings suit. The complaint alleged Igwe had not sought review from the City’s Civil Service Board (“Board”) because the proceedings would have been futile. The City pleaded Igwe’s failure to exhaust his administrative remedies as an affirmative defense. Despite a jury verdict in Igwe’s favor, the trial court entered judgment in favor of the City based on Igwe’s failure to appeal to the Board. Igwe contested the trial court's futility finding, arguing that Board proceedings would have been futile because the Board could only make a recommendation to the City Manager, not directly to the Commission. However, the Third DCA found that the trial court’s conclusion was not an abuse of discretion. According to the Third DCA, the Commission was entitled to independent review by the Board and a recommendation from the City Manager. The Board would have heard Igwe’s grievances and reported its findings to the City Manager who would have then made a recommendation to the City Commission in accordance with §§ 40-128(b)(4) and 16(e) of the City’s Code of Ordinances and Charter which requires the Board to report its findings to the City Manager for consideration of a proper remedy and empowers the City Manager to make recommendations to the City Commission. Moreover, the City Manager could not reject the Board’s recommendation where it was supported by competent, substantial evidence.

After the Third DCA’s decision, a municipality delegating to a Board in their Charter and Code of Ordinances the power to review appeals from suspended or dismissed employees is advisable. If Florida law requires that a municipal employee exhaust all administrative remedies before filing a suit, a Board provides municipalities a mechanism for addressing a mistake before a final judgment on the merits is rendered by a court.

2. AGO 2019-12 (November 1, 2019). Community redevelopment agency; transfer of authority.
The Florida Attorney General (“AG”) addressed whether a city council sitting as the governing board of the city’s Community Redevelopment Agency (“CRA”) can transfer its authority to an independent board under § 163.356, F.S. A CRA is a separate “public body corporate and politic” from the local government.  Generally, the Community Redevelopment Act of 1969 provides that such a separate public agency, when formed, may be governed in two ways: 1) the local government may, by ordinance, appoint a board of commissioners which may be comprised of members distinct from the members of the board of the local government per § 163.356(2), F.S. and 2) the local government’s “governing body” may instead designate itself as the community redevelopment agency board pursuant to § 163.357(1)(a), F.S.

Section 163.356(2), F.S., requires that a board of commissioners distinct from the city council be appointed “[w]hen the governing body adopts a resolution declaring the need for a community redevelopment agency.”  The statute is clear that the board of commissioners be established when the community redevelopment agency is established.  There, the AG opined that there is no provision for transfer of governance of an established community redevelopment agency to a later constituted board of commissioners.  Notably, however, the converse is not true.  Section 163.357(1)(a), F.S., provides that, “[a]s an alternative to the appointment of not fewer than five or more than seven members of the agency, the governing body may, at the time of the adoption of a resolution under s. 163.355, or at any time thereafter by adoption of a resolution, declare itself to be an agency, in which case all the rights, powers, duties, privileges, and immunities vested by this part in an agency will be vested in the governing body of the county or municipality, subject to all responsibilities and liabilities imposed or incurred.”


3. AGO 2019-13 (November 1, 2019). Tourist development tax; for-profit museum.
The Florida AG addressed whether under § 125.0104(5)(a), F.S., tourist development tax funds can be used to repair or improve a publicly-owned museum which is operated by a for-profit corporation. Pursuant to § 125.0104(5)(a)(1), F.S., such funds may be used “to acquire, construct, extend, enlarge, remodel, repair, improve maintain, operate, promote one or more aquariums or museums that are publicly owned and operated by not-for-profit organizations and open to the public . . .” According to the AG, this language makes it clear that tourist development tax revenues may only be used for specified purposes related to the operation of museums that are either: 1) publicly owned and operated and open to the public or 2) owned and operated by not-for-profit organizations and open to the public. The AG opined that the statute makes no provision for the use of tourist development tax revenues for repair of publicly-owned buildings leased to for-profit corporations operating a museum on the premises.