Exec. Dir. v. Schwiep

298 So.3d 1169

EXECUTIVE DIRECTOR, in his official capacity only, of The Citizens' Independent Transportation Trust of Miami-Dade County, Appellant,

v.Paul J. SCHWIEP, Appellee.

No. 3D19-1769

District Court of Appeal of Florida, Third District.

Opinion filed January 29, 2020

Abigail Price-Williams, Miami-Dade County Attorney, and Dennis A. Kerbel and Oren Rosenthal and Annery Pulgar Alfonso, Assistant County Attorneys, for appellant.

Coffey Burlington, P.L., and Jeffrey B. Crockett, for appellee.

Before SALTER, HENDON and LOBREE, JJ.

SALTER, J.

The Executive Director ("Director") of the Citizens' Independent Transportation Trust of Miami-Dade County ("CITT"), appeals a final judgment and order on cross motions for summary judgment entered in favor of the appellee, Paul J. Schwiep, a trustee of the CITT for many years. Finding no error in the trial court's analysis and orders, we affirm.

Mr. Schwiep is a Florida-licensed attorney in a private firm. In 2006, he was nominated and appointed to serve as a trustee for the CITT. His service included over three years as chair of the 15-member CITT. He was reappointed to consecutive terms of service as a trustee in 2010, 2014, and 2018.

The CITT was established in 2002 by Miami-Dade County to supervise and audit the use of proceeds of the Transit System Surtax levied by the County pursuant to section 212.055(1), Florida Statutes (2019). The CITT trustees are required to be residents of the County and persons possessing "outstanding reputations for civic involvement, integrity, responsibility, and business and/or professional ability and experience or interest in the fields of transportation mobility improvements or operations, or land use planning."¹ The County Attorney serves as legal counsel to the CITT and Director, and the CITT is expressly subject to provisions of the Florida Open Government Laws and the County's Conflict of Interest and Code of Ethics Ordinance, section 2-11.1 (and subsidiary sections) of the County Code of Ordinances.

The provision in contention in this appeal is a prohibition in County Code section 2-11.38 applicable to members of County boards including the CITT. No person seeking to serve such a board may do so if that person "has filed a lawsuit against the County that is pending at the time of appointment and that challenges a policy set by the Board of County Commissioners, unless the Board of County Commissioners by two-thirds (2/3) vote of its membership waives this requirement."

In October 2018, Mr. Schwiep and another local attorney filed an administrative petition with Florida's Department of Administrative Hearings on behalf of a local non-profit organization (the Tropical Audubon Society), and a County citizen. The administrative petition named the County as a respondent and challenged the County Commission's adoption of an amendment to the County's Comprehensive Development Master Plan. The amendment advanced the County's expressway authority's proposal to construct a 14-mile extension of State Road 836 outside of the County's Urban Development Boundary. The proposed extension was backed by the County Mayor.

About two weeks after Mr. Schwiep and co-counsel filed the administrative petition, the Director of the CITT advised Mr. Schwiep that his position as a trustee of the CITT was considered "relinquished" and that Mr. Schwiep could not attend further meetings or vote on CITT matters. The remaining CITT trustees, however, unanimously adopted a resolution urging the County Commission to waive the prohibition in County Code section 2-11.38 if it indeed applied. The Mayor urged the Commission not to approve the requested waiver, and the Commission did not waive the prohibition as interpreted by the County Attorney's office and enforced by the CITT's Director.

In January 2019, Mr. Schwiep filed a verified petition for declaratory relief² in the Miami-Dade Circuit Court seeking confirmation that his actions as co-counsel for the Tropical Audubon Society's administrative petition did not trigger the CITT's and the Director's right to remove him as a trustee. The County Attorney's office represented the CITT's Director.

The matter was heard by the trial court on an expedited basis. The parties filed cross motions for summary judgment, and Mr. Schwiep's motions were granted. A final judgment was entered in favor of Mr. Schwiep in September 2019 regarding his claim for declaratory relief. In the final judgment, Mr. Schwiep was effectively reinstated to his position as a trustee of the CITT.

The CITT Director's appeal followed. As a consequence of the appeal, Mr. Schwiep's reinstatement was stayed automatically under Florida Rule of Appellate Procedure 9.310(b)(2).

Analysis

The standard of review for the trial court's summary judgment rulings addressing the meaning and interpretation of the pertinent County ordinances is de novo. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) ; State v. Hanna, 901 So. 2d 201, 204 (Fla. 5th DCA 2005).

We find one issue dispositive: the plain meaning of the term "lawsuit" as used in section 2-11.38. "In statutory construction, statutes must be given their plain and obvious meaning and it must be assumed that the legislative body knew the plain and ordinary meanings of the words." Rinker Materials Corp. v. City of North Miami,...