Time Limits In Bill Of Rights Only Applies To Externally-Generated Complaints

A provision in Florida’s statutory Law Enforcement Officers’ Bill of Rights provides: “Except as provided in this subsection, no disciplinary action, demotion, or dismissal shall be undertaken by an agency against a law enforcement officer or correctional officer for any act, omission, or other allegation of misconduct if the investigation of such allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation of the misconduct.” A divided Florida Court of Appeals recently ruled that the 180-day time limit only applies to externally-generated complaints.

The case involved Robert McQuade, a corrections officer with the Florida Department of Corrections. On December 18, 2008, McQuade’s warden signed an incident report that had been prepared by another correctional officer. The report alleged that McQuade was in violation of the Department’s rules because he allowed a convicted felon to live in staff housing without permission, an infraction that had been discovered by the probation officer of the felon.

On August 19, 2009, McQuade received a predetermination letter informing him that disciplinary charges were being pursued; on September 18, 2009, he was dismissed from his position as a correctional officer. McQuade challenged his termination, arguing that his investigation took longer than the 180 days allowed under the Bill of Rights.

The Florida Court of Appeals observed that it had held in one of its prior decisions, Migliore v. City of Lauderhill, 415 So.2d 62 (Fla. 4th DCA 1982), that the Bill of Rights “did not apply to discipline stemming from allegations of wrongdoing from within the agency.” The Court felt duty-bound to follow the Migliore decision, but not without reservations: “In the absence of Migliore, we would be inclined to agree with McQuade that the plain language of the Bill of Rights indicates that the 180-day rule for completing an investigation applies to the investigation of any allegation regardless of where it originates. While Migliore did not address this specific provision, its holding was based on the interpretation of the term ‘receipt.’ The Migliore court concluded that a law enforcement agency’s ‘receipt’ of a complaint, as that language was used in the Bill of Rights, meant its receipt of a complaint from a person outside the agency.

“Because the Florida Supreme Court approved the Fourth District’s interpretation of the term ‘receipt’ as used in the LEO Bill of Rights as indicating that a complaint comes from a source outside the agency, we are bound by that interpretation. Accordingly, based on the Migliore court’s interpretation of the term ‘receipt,’ we are constrained to hold that the Bill of Rights’ 180-day rule did not apply to the instant case, where McQuade’s violation of Department rules was discovered internally.”

A dissenting judge thought differently, and would hold that “the statute does not require a correctional officer to defend against untimely disciplinary action. Had the Legislature intended to place a time limit only upon disciplinary actions resulting from external complaints and not upon disciplinary actions originating within the employing agency, it would have specified such differentiation in the Bill of Rights.”

McQuade v. Florida Department of Corrections, 2010 WL 4829816 (Fla. App. 1 Dist. 2010).

This article appears in the February 2011 issue