Statutory Bill Of Rights Trumps Civilian Review Board’s Investigative Ability

Florida is one of many states with a statewide law enforcement officers bill of rights. A part of the Bill of Rights, Section 112.533, specifies that the system of investigation mandated by the Bill of Rights “shall be the exclusive procedure used by law enforcement and correctional agencies for investigation of complaints against law enforcement officers.” Another statute requires that the investigation be conducted by the law enforcement agency itself.

By an amendment to its county charter, Orange County created the Orange County Citizen’s Review Board. The charter amendment allowed the Board to conduct investigations, and granted to the Board the ability to subpoena witnesses, administer oaths, take testimony, and require production of evidence.

Eventually, the Sheriff of Orange County filed a complaint for a declaratory judgment challenging the Board’s authority to independently investigate a complaint against an employee. The Florida Court of Appeals agreed with the Sheriff, and ruled that the provisions of the Florida Bill of Rights prohibited the creating of civilian review boards with investigatory authority. As the Court saw it, “the County is prohibited from transferring any of the Sheriff’s powers or duties to another County office, department, or board, without abolishing the constitutional office of Sheriff by charter. The question presented is whether the County charter and ordinance creating and authorizing an independent board to review citizen complaints against the Sheriff’s deputies without first abolishing the constitutional office of Sheriff is inconsistent with general law. The answer seems clear to us in light of the plain language of the Bill of Rights. Because the Bill of Rights limits the investigation of complaints against law enforcement officers by local government to the employing agency’s investigation, the charter provisions and ordinance that establish an additional procedure for investigating these complaints necessarily and directly conflict with the statute.”

The Court did not stop there, though. The Court found that “given the number of significant constitutional infirmities with the charter provision creating the civilian review board, and the ordinance implementing that provision, we see no practical way to sever out any part of the provision, and therefore declare that portion of the charter, along with the ordinance implementing the charter provision, to be void as violative of the Florida constitution.”

The Court left the door to civilian oversight open a crack, concluding by stating: “We do not see any constitutional impediment that would prohibit a county board from reviewing public records or considering testimony from anyone volunteering to appear and discuss issues related to the discharge of any responsibility entrusted to a constitutional sheriff by law. Therefore, in theory, we see no reason why the County could not create a board with more limited power to review and comment upon internal investigations conducted by the Sheriff. But we will not speculate in a vacuum about how such a board might work, or the extent of the powers it could be granted without unconstitutionally interfering with the Sheriff’s independent authority. In this case, it suffices to say that the charter provision before us so far exceeds the scope of that allowed by current law that it cannot stand.”

Demings v. Orange County Citizens Review Board, 2009 WL 1490778 (Fla. App. 2009).

This article appears in the September 2009 issue