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Fifth DCA Confirms Whistle-blowers Must Follow Statutory Requirements

Posted: November 8, 2009 Filed under: Uncategorized

In University of Central Florida Board of Trustees v. Turkiewicz, Florida’s Fifth District Court of Appeal quashed a trial court order that departed from the essential requirements of law. Turkiewicz was employed by UCF for a number of years, first as Director of Safety and Security and later as Director of Police and Public Safety.

Beginning in late 2005 or early 2006, Turkiewicz disclosed to his supervisor, UCF’s Vice President for Administration and Finance, what he believed were regulatory violations and/or acts of gross malfeasance and waste of public funds by UCF. On November 8, 2006, Turkiewicz’s supervisor suggested that he consider a change in employment, and later that month, UCF notified Turkiewicz in writing that his contract would not be renewed the following year.

Turkiewicz initiated a grievance against UCF pursuant to the university’s regulations. His grievance alleged 12 violations of university rules or Florida Statutes. UCF’s audit office and a grievance panel deemed the allegations unsubstantiated and denied the grievance. A step two hearing before a UCF vice-president affirmed Turkiewicz’s non-reappointment, and the university’s president ultimately affirmed the decision. Tukiewicz then filed suit for violation of Florida’s public whistle-blower’s statute.

UCF filed a motion to dismiss Turkiewicz’s lawsuit, asserting that he failed to comply with the whistle-blower’s statute’s requirement that administrative remedies be exhausted before a lawsuit is filed. Because Turkiewicz failed to file a complaint with the Florida Commission on Human Relations before suing, UCF contended the lawsuit had to be dismissed.

The trial court deemed the statute unclear and denied UCF’s motion to dismiss. The Court of Appeal, however, deemed the trial court’s order to be a departure from essential requirements of law that irreparably harmed the university.

Because we agree that the Act requires that Turkiewicz seek relief from the Florida Commission on Human Relations [“FCHR”] before filing a civil action, and there is no dispute that Turkiewicz failed to seek relief from the FCHR, we grant the writ and quash the order.

In short, the Court of Appeal held that a state employee’s filing an internal complaint or grievance is not sufficient to preserve a claim under the public whistle-blower’s statute. Instead, a timely complaint must be filed with the Florida Commission on Human Relations. As the Fifth District Court of Appeal observed, “there is easily a distinction between UCF’s internal grievance process and the detailed administrative procedure outlined in section 112.31895, which is designed to give the state an opportunity to identify and expeditiously resolve meritorious claims.”

On a final note, reader’s of this blog post should note that the Turkiewicz case involved a claim by a state employee. The procedures that govern whistle-blower claims by public employees of local governments are a bit different. Employees of cities, counties, and other forms of local government should review the Public Whistle-blower’s Act or consult an attorney to ensure that their claims are timely and properly filed in strict compliance with the Act’s requirements.

Admitted: Florida, Kansas, New Mexico (inactive)