By Marjorie Johnson, J.D.
Hearing the case upon certification as a matter of “great public importance,” the Florida Supreme Court held that the governor’s executive order of suspension provided sufficient factual allegations reasonably related to the sheriff’s “neglect of duty and incompetence.”
The former sheriff of Broward County, Florida, failed to revive his challenge to Governor Ron DeSantis’s executive order (EO) suspending him from office due to his “neglect of duty and incompetence” following mass shootings at the Fort Lauderdale Hollywood Airport and Marjorie Stoneman Douglas High School. Rejecting the sheriff’s assertion that the governor exceeded his constitutional authority, the Florida Supreme Court found the EO set sufficiently described how the sheriff “egregiously failed” in his duties, including two separate investigative reports that specifically found he failed to provide frequent training for his deputies “resulting in the deaths of twenty-two individuals” and failed to implement “proper protocols” that ultimately led to a “failure to contain the dangerous situation.” Therefore, dismissal of his petition for writ of quo warranto was affirmed (Israel v. DeSantis, April 23, 2019, Lagoa, J.).
Two mass shootings under his watch. Two mass shootings occurred following the sheriff’s reelection in 2016. First, there was the mass shooting on January 6, 2017, at the Fort Lauderdale Hollywood Airport. Then, on February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School in Parkland, Florida. Several months after the Parkland shooting, a state investigating commission issued its Marjory Stoneman Douglas Public Safety Commission Report (Parkland report). Less than two weeks later, on January 11, 2019, Governor DeSantis issued his EO suspending the sheriff from office.
Neglect of duty and incompetence. The EO alleged that the sheriff took certain actions that constituted “neglect of duty and incompetence” and set forth various factual allegations that were based in part on the Parkland report and an internal investigation into the airport shooting. The EO detailed how he “egregiously failed” in his duties as sheriff, stating that two separate reports “specifically found” that he “has not and does not provide frequent training for his deputies resulting in the deaths of twenty-two individuals and a response that is inadequate for the future safety of Broward County residents” and that he ” has not implemented proper protocols to provide guaranteed access to emergency services, nor proper protocols to have timely, unified command centers set up to control a crime scene leading to confusion, a lack of recognized chain-of-command, and ultimately a failure to contain the dangerous situation.”
Certified to state’s highest court. The sheriff filed a petition for writ of quo warranto in the circuit court alleging that the governor exceeded his constitutional authority. The court dismissed his petition, finding that the allegations set forth in the EO sufficiently supported the specified grounds of neglect of duty and incompetence. He appealed, and the Florida court of appeals certified the case to the Florida Supreme Court based on its determination that the appeal involved a question of great public importance that required immediate resolution.
Grounds for suspension. At issue was Article IV, Section 7(a) of the Florida Constitution, which provides that the governor may suspend any county officer from office for “malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony.” Once the governor suspends a public official, the state senate has the exclusive role of determining whether to remove or reinstate the official. Here, the sheriff argued that the governor lacked the authority to suspend him from office since the EO did not provide an “objective factual predicate” to conclude that he neglected or incompetently performed a specific “duty for which he was bound by law to perform.”
Limited role of judiciary. While the judiciary has a “limited role” in reviewing the governor’s constitutional exercise of the suspension power, the constitution requires a governor’s EO to state the grounds for an officer’s suspension. A suspended officer may then seek judicial review to ensure an EO satisfies that constitutional requirement. However, the judiciary’s role is limited to determining whether the order, on its face, sets forth allegations of fact relating to one of the constitutionally enumerated grounds of suspension.
Where the EO of suspension contains factual allegations relating to an enumerated ground for suspension, courts are prohibited from examining the sufficiency of the evidence supporting those facts, as that role is solely in the discretion of the state senate. Thus, the factual allegations in an EO of suspension must satisfy only a low threshold under the judiciary’s limited review. If the EO contains allegations that bear “some reasonable relation to the charge made against the officer,” it will be sufficient.
Rejects “statutory duty” argument. Under this standard, the governor’s EO satisfied the judiciary’s limited review since it named the grounds for his suspension as “neglect of duty and incompetence” and provided various factual allegations that reasonably related to those grounds. The Florida Supreme Court rejected the sheriff’s assertion that Section 7(a) limited the grounds for suspension to a statutory duty prescribed to his offices since this was not required by the plain language of Section 7(a). Moreover, the plain and ordinary meaning of the word “duty” in Section 7(a) offered no support for this argument. According to Webster’s Seventh New Collegiate Dictionary, “duty” is defined in part as “the action required by one’s position or occupation.”
The Florida Supreme Court has also held that “neglect of duty” can refer to an officer’s failure to perform duties laid on him as such by virtue of his office or which is required of him by law, and the actions do not need to be willful, through malice, ignorance, or oversight. “Incompetency” may arise from “gross ignorance of official duties or gross carelessness in the discharge of them” or from a “lack of judgment and discretion.” Because the factual allegations in the EO bore “a reasonable relation to the grounds of neglect of duty and incompetence,” denial of the sheriff’s petition for writ of quo warranto was affirmed.
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