holding that “[i]f the agency’s interpretation is ‘within the range of possible and reasonable’ interpretations, it is not clearly erroneous and should be affirmed”
How later courts described this case
- holding that “[i]f the agency’s interpretation is ‘within the range of possible and reasonable’ interpretations, it is not clearly erroneous and should be affirmed”
Written by the judges who cited it.
The opinion
Third District Court of Appeal
State of Florida
Opinion filed September 3, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D12-3059
Lower Tribunal No. 12-1
________________
Louis Brennan,
Appellant,
vs.
City of Miami,
Appellee.
On Appeal from the State of Florida, Public Employees Relations
Commission.
Sheppard, White & Kachergus, P.A. (Jacksonville), and Wm. J. Sheppard,
Elizabeth L. White, Matthew R. Kachergus and Bryan E. DeMaggio, for appellant.
Victoria Méndez, City Attorney, and John A. Greco, Janeen L. Richard and
Casey P. Cohen, Assistant City Attorneys., for appellee.
Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
FERNANDEZ, J.
Louis Brennan appeals a final order from the Public Employees Relations
Commission in which the Commission concluded that appellee City of Miami did
not violate chapter 295, Florida Statutes (2012), when it failed to afford Brennan a
veterans’ preference in promotion and dismissed Brennan’s complaint. We
disagree with this conclusion because Brennan’s failure to submit documentation
to the City of his active duty during wartime did not preclude his entitlement to a
lieutenant’s promotional preference, pursuant to section 295.09, Florida Statutes
(2012), and rule 55A-7.0111, Florida Administrative Code. Accordingly, we
reverse and remand.
Factual Background
Brennan is a firefighter employed with the City since 1999. He is a former
United States Marine Reservist who participated in military training for which he
received a DD-214.1 He included this document in his initial employment
application with the City.
Brennan returned to active duty in 2003. He resumed City employment at
the conclusion of his military service for which he received a second DD-214. He
submitted this document to the City when he returned to work. In 2004, the City
gave Brennan a certificate of appreciation for his military service.
In 2008, Brennan applied for a promotional position of Fire Lieutenant with
the City. The Register Announcement that established the minimum requirements
1 DD-214 is a document the United States Department of Defense issues
following discharge from military service.
2
for the fire lieutenant position listed, in relevant part, the “Veteran’s Preference
Documentation” as follows:
All DD-214’s or military discharge papers, or equivalent
certification from the U.S. Department of Veteran’s
Affairs, which lists the military status, dates of service,
discharge type, and, if applicable, the combat campaign
or expedition for which a campaign or expeditionary
medal was authorized.
....
If an applicant claims veteran’s preference, he or she
must indicate this on the application form, and all
required documentation in accordance with Florida
Statute Section 295 and Florida Administrative Code
55A-7.013, must be submitted with the application by the
closing date.
The City’s application for employment contained the following statement:
YOU MUST SUBMIT A LEGIBLE FORM DD-214
AND OTHER RELEVANT DOCUMENTS
CONCERNING ELIGIBILITY FOR VETERAN’S
PREFERENCE. VETERAN’S PREFERENCE WILL
BE AWARDED ONLY IF YOU SUBMIT, WITH
YOUR APPLICATION, A LEGIBLE FORM DD-214
AND / OR PROOF OF A SERVICE-CONNECTED
DISABILITY FROM A STATE APPROVED
AUTHORITY THAT IS LESS THAN ONE YEAR
OLD.
Brennan timely submitted his application to the City’s Employment Office.
On his application, he checked a box that indicated that he served on active
military duty during wartime. He did not submit the DD-214 or any other
documents to claim a preference. At the time of his submission, the employment
3
office advised him that he had to submit a DD-214 in support of his employment
application. Brennan, however, could not locate his DD-214. He then went to the
records division of the City’s Human Resources Department and requested a copy
of his DD-214. The Human Resources Department provided him with his 1997
DD-214, which he submitted to the City. At that time, Brennan asked if he needed
to provide any additional documentation, and the employment office advised that
he did not.
The testing and validation specialist responsible for screening applications
for the fire lieutenant exam subsequently advised Brennan that he was not eligible
for preference because he only submitted his 1997 DD-214 with his application,
which reflected service for training only.2 Brennan did not receive the five
additional points for veterans’ preference.
Brennan passed the qualifying examination. He later learned that he had not
received any veterans’ preference points.
a. Proceedings before the Department of Veterans Affairs
Brennan filed a complaint with the Department of Veterans Affairs in
which he contested his failure to receive five extra points on the fire lieutenant’s
exam. 3 The department found his complaint invalid because he had not appended
2 Brennan’s service during 2003, as documented in the DD-214 issued
subsequent to that service, qualified him for additional preference based on his
wartime service.
4
the 2003 DD-214 to the application in which he claimed veterans’ preference. The
department also concluded that the complaint was premature because everyone
who had been promoted at the time had a higher score than Brennan would have
had if he had been given the five extra points.
Brennan filed a second complaint with the department. He asserted that he
would have been promoted to lieutenant had he been awarded veterans’ preference
points. The department issued its decision, finding Brennan had a valid complaint,
and concluding that, because the 2003 DD-214 was in the City’s personnel files,
the City should have informed Brennan that his 2003 DD-214 was missing, such
that Brennan could remedy the problem.
a. Proceedings before the Florida Public Employees Relations
Commission
Brennan consequently filed a veterans’ preference complaint with the
Commission in which he alleged that the City erroneously denied him veterans’
preference points in promotion. The hearing officer disagreed with the
department’s decision and issued a recommended order following a hearing,
concluding that Brennan was not entitled to a veterans’ preference because he did
not submit the proper documentation with his application. Brennan filed
3 Brennan also filed a grievance pursuant to the collective bargaining
agreement in which he challenged his placement on the Eligibility Roster. The
grievance was settled, whereby the City and the Union agreed to abide by the final
decision of the Department of Veterans Affairs.
5
exceptions to the hearing officer’s recommended order, to which the City
responded.
The Commission ultimately denied all of Brennan’s exceptions. The
Commission rejected Brennan’s claim that the Commission’s hearing officer
should have deferred to the findings of the department’s investigator, who found
that the City’s Human Resources Department was obligated to contact him and
provide him an opportunity to supply his missing 2003 DD-214. The Commission
reasoned that its review of investigators’ findings is de novo, and the review
should not be controlled by their findings and conclusions, both factual and legal.
The Commission also rejected Brennan’s claim that Florida Administrative
Code Rule 55A-7.013, which provides that the applicant claiming preference is
responsible for providing supporting documentation, solely applies to original
appointment and retention, and not to promotion. Brennan argued that the only
statute addressing promotion, section 295, Florida Statutes (2012), and the only
accompanying Department of Veterans Affairs regulation, Florida Administrative
Code Rule 55A-7.0111, do not require veterans to confirm their eligibility with
documentation. The Commission disagreed, stating, “[t]he Commission has
consistently placed the responsibility for documentation set forth in rule 55A-7.013
to all claims for a veteran’s preference, initial appointments, and promotions
alike.” Additionally, the Commission accorded “great deference” to the
6
Department of Veterans Affairs’ interpretation of rule 55A-7013 as applying to
promotional preference.
The Commission further rejected Brennan’s argument that the Department
of Veterans Affairs did not have the authority to make rules that related to
veterans’ preference in promotion, asserting that the Commission was not the
proper venue to contest the Department of Veterans Affairs’ rulemaking authority.
The Commission denied Brennan’s exception that challenged the hearing
officer’s failure to make additional findings of fact. The Commission explained
that Brennan did not cite to the record in support of the findings he sought to
include, and these additional findings were unnecessary to resolve the case.
The Commission next rejected Brennan’s claim that the testing and
validation specialist had actual or constructive knowledge of Brennan’s active
wartime duty when she failed to afford him preference points. The Commission
concluded that substantial evidence in the record supported the hearing officer’s
contrary finding. The Commission rejected Brennan’s contention that the City’s
receipt of the 2003 DD-214 contained in Brennan’s personnel file and the
certificate of appreciation Brennan received imputed knowledge of Brennan’s
wartime duty. The Commission stated:
Holding a large municipal employer responsible for
knowledge of the existence of all DD-214s in its personnel
records and affording preference to veterans accordingly is
not only clearly contrary to rule 55A-7.013(2)’s explicit
7
designation of the veteran as the party responsible for
supplying the necessary documentation for any claimed
preference at the time of making application, but it is also
patently unreasonable.
The Commission further dismissed as moot the issue of whether Brennan
should have been appointed lieutenant had he been awarded preference points
because he was not entitled to points due to his failure to provide the 2003 DD-
214.
Standard of Review
This Court reviews an agency’s statutory interpretation de novo. See
Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So. 2d 417, 420 (Fla. 1st DCA 2004).
The record is reviewed to determine whether competent and substantial evidence
supports an administrative agency’s decision. § 120.68, Fla. Stat. (2012). See also
Braddock v. Sch. Bd. of Nassau Cnty., 455 So. 2d 394, 396 (Fla. 1st DCA 1984).
Administrative agencies are “afforded wide discretion in the interpretation of a
statute which it is given the power and duty to administer.” Republic Media, Inc.
v. Dep’t of Transp., 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998). “[A] reviewing
court must defer to an agency’s interpretation of an operable statute as long as that
interpretation is consistent with legislative intent and is supported by substantial,
competent evidence.” Pub. Emp. Relations Comm’n v. Dade Cnty. Police
Benevolent Ass’n, 467 So. 2d 987, 989 (Fla. 1985). If the agency’s interpretation
8
is “within the range of possible and reasonable” interpretations, it is not clearly
erroneous and should be affirmed. See Republic Media, 714 So. 2d at 1205.
Analysis
The Commission’s final order must be reversed because the record lacks
competent and substantial evidence to support the order. Furthermore, the
Commission’s interpretation of the statute falls outside the range of possible and
reasonable interpretations, and is clearly erroneous. More specifically, the
Commission’s decision is inconsistent with state law, the plain language of
applicable law, specific provisions of the Florida Administrative Code, established
principles of statutory interpretation, and the policy underlying veterans’
preference laws. Thus, Brennan was not obligated to submit any documentation to
the City to establish his eligibility for promotion and receive a veterans’ preference
to which he was entitled.
We first address the policy underlying veterans’ preference laws, which is
unequivocally clear. It is “the policy of this State of Florida that in appreciation
for [veterans’] service to this state and the country, and in recognition of the time
and advantage lost toward the pursuit of a civilian career, veterans . . . shall be
granted preference in employment with the state and political subdivision of or in
the state.” Ch. 98-33, at 244, Laws of Fla. The Florida Supreme Court has stated
that:
9
The purpose of veterans’ preference acts is sometimes
said to be to reward those who served their country in
time of need, and, again, it is stated that such acts are a
recognition of the qualities and traits developed by
military service which tend to make of veterans superior
public servants. But whether such preference is
considered to be in recompense for the services
performed and the sacrifices suffered by veterans, or
whether it is considered to be a legislative recognition of
the habits of industry, obedience, and fortitude instilled
by their service on active duty in the armed forces of our
country, there can be no doubt that the Legislature
desired the veteran to have the actual benefit of the
preference granted-either upon his entrance into public
service or upon his promotion in such service, if a re-
instated employee-and it is clear that the interpretation
contended for by the Board would not accomplish the
legislative purpose. ‘Preference to veterans must be a
reality. It cannot be made illusory or a mere gesture.’
Yates v. Rezeau, 62 So. 2d 726, 727 (Fla. 1953) (citations omitted).
It cannot be said that the City’s ordinance can co-exist simultaneously with
the state statute. A county cannot enact an ordinance that conflicts with a state
statute. Phantom of Brevard, Inc. v. Brevard Cnty., 3 So. 3d 309, 314 (Fla. 2008).
Where a municipality is authorized to legislate with the State, “a municipality’s
concurrent legislation must not conflict with state law.” Thomas v. State, 614 So.
2d 468, 470 (Fla. 1993). “When a municipal ‘ordinance flies in the face of state
law’ – that is, cannot be reconciled with state law – the ordinance ‘cannot be
sustained.’” City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924, 928
(Fla. 2013) (citing to Barragan v. City of Miami, 545 So. 2d 252, 255 (Fla. 1989).
10
Such a conflict “comes into play ‘where the local enactment irreconcilably
conflicts with or stands as an obstacle to the execution of the full purposes of the
statute.’” Id. (citing 5 McQuillin Mun. Corp. § 15:16 (3d ed. 2012)).
The City’s requirement creates a barrier for eligible veterans which is
otherwise non-existent under the state statute. In effect, the City’s requirement
restricts the rights granted to veterans who seek promotional preference and
renders the promotional preference a mere illusion. Thus, the conflict is self-
evident, “flies in the face of state law,” and the ordinance simply cannot stand. Id.
We agree with Brennan’s argument that rule 55A-7.013 is inapplicable
under the facts of this case. Rule 55A-7.013 addresses veterans’ preference within
the context of appointment and retention, and appointment and retention are not at
issue in the case before us.4 In fact, rule 55A-7.003(10) specifically defines the
term “vacant position” to mean:
4 Rule 55A-7.013 provides in relevant part as follows:
Documentation of Preference Claim.
(1) An applicant for a covered position who believes he or she is entitled to
veterans’ preference in employment shall indicate such preference on the
application form.
(2) The applicant claiming preference is responsible for providing required
documentation at the time of making an application for a vacant
position, or prior to the closing date of the vacancy announcement.
(3) The covered employer shall inform applicants of requirements for
documentation of eligibility for preference.
11
[A] position which the covered employer has announced
as being open for recruitment and available to all
applicants. A position that is announced as being open
to current employees only, to be filled by the
reassignment, promotion or demotion of an employee
is not a vacant position for the purpose of this
chapter.
Fla. Admin. Code R. 55A-7.013 (emphasis added).
Rule 55A-7.0111, Florida Administrative Code, which implemented section
295.09, Florida Statutes (2012),5 and addresses veterans’ preference in promotion,
governs instead.6
(4) The covered employer shall determine whether an applicant is eligible
for veterans’ preference.
(5) The covered employer shall document the employee’s election of
veterans’ preference.
5 Section 295.09 provides as follows:
Reinstatement or reemployment; promotion preference.
(1)(a) When an employee of the state or any of its political subdivisions
employed in a position subject or not subject to a career service system or
other merit-type system, with the exception of those positions which are
exempt pursuant to s. 295.07(4), has served in the Armed Forces of the
United States and is discharged or separated therefrom with an honorable
discharge, the state or its political subdivision shall reemploy or reinstate
such person to the same position that he or she held prior to such service in
the armed forces, or to an equivalent position, provided such person returns
to the position within 1 year of his or her date of separation or, in cases of
extended active duty, within 1 year of the date of discharge or separation
subsequent to the extension. Such person shall also be awarded preference
in promotion and shall be promoted ahead of all others who are as well
qualified or less qualified for the position. When an examination for
12
Neither is the City’s requirement consistent with rule 55A-7.0111 and
promotion is utilized, such person shall be awarded preference points, as
provided in s. 295.08, and shall be promoted ahead of all those who appear
in an equal or lesser position on the promotional register, provided he or she
first successfully passes the examination for the promotional position.
(b) The provisions of paragraph (a) shall also apply to a person who was a
veteran when employed by the state or its political subdivision and who was
recalled to extended active duty in the Armed Forces of the United States
and was discharged or separated therefrom with an honorable discharge.
(c) The provisions of paragraphs (a) and (b) shall apply only to a veteran’s
first promotion after reinstatement or reemployment, without exception.
(2) For the purposes of this section, “extended active duty” means active
duty, other than for training, beyond the date of honorable discharge or
separation, due to military requirements.
6 Rule 55A-7.0111 provides as follows:
Reinstatement or Reemployment; Promotion Preference.
(1) When an employee in a covered position leaves employment of the state
or its political subdivisions for the purpose of serving in the Armed
Forces of the United States and is separated therefrom with an honorable
discharge, the state or its political subdivision shall reinstate or reemploy
such person under the following conditions:
(a) Reinstatement or reemployment is made to the same or to an
equivalent position.
(b) Reinstatement or reemployment is made within one year of the
date of separation from the military service, or, in the case of
extended active duty, within one year of the date of discharge or
separation subsequent to the extension.
(2) Persons reinstated or reemployed under this rule shall be awarded
preference in promotion, and shall be promoted ahead of all other
employees who are as well or less qualified for the position. When an
examination, as defined in Rule 55A-7.003, F.A.C., is utilized, such
13
section 295.09. Nowhere in rule 55A-7.0111 and section 295.09, whose language
is clear and unambiguous, is there a requirement that a veteran submit veterans’
preference documentation, or DD-214 form. The City’s requirement is also
illogical and duplicative where, as here, the City maintained that documentation on
file.
Conclusion
Brennan was not required to submit his 2003 DD-214 form with his job
application, pursuant to section 295.09, Florida Statutes (2012), and rule 55A-
7.0111, Florida Administrative Code. We therefore reverse the final order and
remand with instructions that Brennan receive an award of five additional points
on his fire lieutenant exam, and that he be promoted to the position of fire
lieutenant with back pay and benefits from the time his modified test score entitled
him to that position, if he would have otherwise been entitled to such promotion.
persons shall be eligible for preference points and ranking on the register
as provided by Rule 55A-7.010, F.A.C., of this chapter. Eligibility for
preference in promotion shall apply only to a veteran’s first promotion
after reinstatement or reemployment, without exception.
(3) If the reinstated or reemployed person is not promoted, the person
retains promotion preference eligibility until the first promotion
following reemployment is satisfied.
(4) Where the reinstated or reemployed person is not promoted and the
register is vacated to establish a new register for the next promotion, such
person shall retain eligibility for preference points and ranking on the
new register as provided by Rule 55A-7.010, F.A.C.
14
Reversed and remanded with instructions.
15