Rodriguezv.City of Miami

Third District Court of Appeal State of FloridaJun 5, 2019
No. 3D18-1956 (Fla. Dist. Ct. App. Jun. 5, 2019)

No. 3D18-1956


Fraternal Order of Police Lodge #20 (Adrian Rodriguez), Appellant, v. City of Miami, Appellee.

Buschel Gibbons, P.A., and Robert C. Buschel and Eugene G. Gibbons (Fort Lauderdale), for appellant. Victoria Méndez, City Attorney, and Kerri L. McNulty, Senior Appellate Counsel, for appellee.

Not final until disposition of timely filed motion for rehearing. Lower Tribunal Nos. 17-21168 & 17-21169 An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C. Miller, Judge. Buschel Gibbons, P.A., and Robert C. Buschel and Eugene G. Gibbons (Fort Lauderdale), for appellant. Victoria Méndez, City Attorney, and Kerri L. McNulty, Senior Appellate Counsel, for appellee. Before LOGUE, SCALES and HENDON, JJ. HENDON, J.

Adrian Rodriguez, through the Fraternal Order of Police Lodge #20, appeals from the trial court's denial of his motion for an order to show cause based on the alleged contempt of the City of Miami's Chief of Police and the City of Miami Manager in the execution of an Arbitration Order to reinstate Rodriguez as a City of Miami police officer. We affirm.

Adrian Rodriguez ("Rodriguez") was sworn in as a City of Miami ("City") police officer in 2007. In 2012, the City's homicide unit received a tip that Rodriguez's brother and father may have been involved in a homicide in 2007. In 2013, based on the results of an Internal Affairs investigation, Rodriguez was relieved of duty with pay. While on relieved-duty status, Rodriguez was observed violating the terms of his relieved-duty status. In 2016, Rodriguez was issued a reprimand based on those violations, and he was ultimately terminated.

Rodriguez filed a complaint pursuant to the Collective Bargaining Agreement ("CBA") and the case went to arbitration. The arbitrator concluded that Rodriguez was improperly terminated for invoking his Fifth Amendment privilege during police questioning about the 2007 homicide. The arbitrator also found that although Rodriguez violated the terms of his relieved-duty status, those violations did not warrant termination. The arbitrator ordered Rodriguez to be reinstated as a police officer with no loss of service credit for purposes of benefits determination; however, he was to receive no compensation for the period during which he was not on duty.

The City moved to vacate the Arbitration Order, but the motion was untimely filed and was dismissed. This Court affirmed the dismissal. City of Miami v. Fraternal Order of Police Lodge #20, (Rodriguez), 252 So. 3d 221 (Fla. 3d DCA 2018) (table). --------

In August 2018, Rodriguez was reinstated as a police officer in the City's personnel system. The Florida Department of Law Enforcement's ("FDLE") rules govern law enforcement officers' certification and/or reinstatement, thus, the City consulted FDLE regarding any requirements necessary for Rodriguez's reinstatement into active duty. The FDLE indicated that because the Arbitration Order did not state that Rodriguez's employment was to be made whole, he would be considered to have had a "break in service." Since Rodriguez had been separated from employment for over two years, his FDLE certification had lapsed. The City thus instructed him to report for a required medical screening and drug test before he could be returned to active duty, pursuant to FDLE rules. Rodriguez refused to authorize release of medical records, and the required medical exam and drug screening did not take place. The City issued a reprimand, and Rodriguez was ultimately terminated from employment based on his refusal to comply with the required toxicology screening.

Rodriguez, through the Fraternal Order of Police, filed a motion to find the City in civil contempt for failing to comply with the Arbitration Order directing him to be reinstated. Following an evidentiary hearing, the trial court denied the motion for contempt, concluding that the City had reinstated Rodriguez and fulfilled its obligation under the Arbitration Order, and finding that under FDLE rules, Rodriguez had experienced a break in service. Further, the court determined that Rodriguez's refusal to undergo the required medical exam and drug screening for reinstatement was a separate issue from the Arbitration Order, and that Rodriguez could pursue relief via the CBA grievance procedure rather than through a motion for civil contempt. The trial court denied Rodriguez's motion for rehearing. Rodriguez appeals. Standard of Review.

We review a trial court's denial of a motion for contempt for an abuse of discretion. See Lane v. Lane, 254 So. 3d 570, 572-73 (Fla. 3d DCA 2018); Milton v. Milton, 113 So. 3d 1040 (Fla. 1st DCA 2013). Analysis.

The FDLE is the agency that regulates law enforcement in Florida. As such, FDLE rules require an officer who has experienced a break in service to undergo a mandatory urinalysis drug screening. FDLE Rule 11B-27-00225. The record shows that the City reinstated Rodriguez in accord with the Arbitration Order. It is also evident that, in order to give Rodriguez access to any of the rights and responsibilities of an active duty police officer, the City and Rodriguez were obligated to comply with FDLE rules regulating the reinstatement and recertification process. In response to the City's inquiry regarding recertification, the FDLE noted that Rodriguez's retraining requirement expired June 30, 2017, and as a result he was required to undergo a new background check and fulfill certain training requirements because his separation was more than six months. Because the FDLE rule requires a new drug screening when an officer has had any break in service, the City could not proceed to place Rodriguez on active duty without it. Additionally, the CBA governing Rodriguez's employment states that refusal to comply with an order to submit to substance/alcohol screening will constitute grounds for termination. When the newly-reinstated Rodriguez refused to comply with the City's drug testing requirement, he became non-compliant under both FDLE rules and the CBA.

Rodriguez interprets the Arbitration Order to mean that there was no break in service, and, as a result, his two-year absence from the force should be considered a continuous employment relieving him of any obligation to comply with FDLE rules regulating reinstatement and recertification. That is not what the order says. It says: "Mr. Rodriguez shall be reinstated forthwith to his position as a police officer with no loss of service credit for the purposes of determination of benefits to which he is entitled." [emphasis added]. Rodriguez's City benefits are thus considered uninterrupted by his two year break in service, but the Arbitration Order says nothing about his FDLE certifications. The record indicates that Rodriguez's FDLE certifications lapsed during his two-year break in service. The City was unable to reinstate Rodriguez to active duty without FDLE approval. When Rodriguez refused to fulfill the toxicology requirement, the City was within its rights to terminate him under the CBA. Finding no abuse of discretion, we affirm the trial court's order denying Rodriguez's motion to find the City in contempt of the Arbitration Order.