Allocco v. City of Coral Gables

• Citation: 221 F.Supp.2d 1317
• Decision Date: 23 August 2002
• Docket Number: No. 99-2443-CIV.,99-2443-CIV.
• Parties: Andrew ALLOCCO, Abraham Fernandez, Steny Garcia-Montes, Agustin Quevedo, Alex Silva, Manuel Montalvo, and John Allen, Plaintiffs, v. CITY OF CORAL GABLES, A Municipal Corporation, and the University of Miami, A Non-Profit Florida Corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

221 F.Supp.2d 1317

Andrew ALLOCCO, Abraham Fernandez, Steny Garcia-Montes, Agustin Quevedo, Alex Silva, Manuel Montalvo, and John Allen, Plaintiffs, v. CITY OF CORAL GABLES, A Municipal Corporation, and the University of Miami, A Non-Profit Florida Corporation, Defendants.

No. 99-2443-CIV.

United States District Court, S.D. Florida.

August 23, 2002.

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Rebecca Hope Fischer, Esq., Martin E. Feldman, Attorneys for Andrew Allocco, Abraham Fernandez, Steny Garcia-Montes, Alex Silva, John Allen, Fischer & Feldman, Hollywood, Bruce Howard Lehr, Esq., Co-Attorney for Andrew Allocco, Abraham Fernandez, Steny Garcia-Montes, Alex Silva, John Allen, Fischer & Feldman, Lehr & Gasalla, Miami, for Plaintiffs.

James C. Crosland, Esq., Attorney for City of Coral Gables, Muller Mintz, Miami, James Clark Polkinghorn, Esq., Attorney for University of Miami, Fisher & Phillips, Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GOLD, District Judge.

THIS CAUSE is before the court upon the joint motion for summary judgment (DE # 213) filed by the defendants, the University of Miami ("UM") and the City of Coral Gables ("the City") (collectively "the defendants"). The plaintiffs, Andrew Allocco ("Allocco"), Abraham Fernandez ("Fernandez"), Steny Garcia-Montes ("Garcia-Montes"), Alex Silva ("Silva"), and John Allen ("Allen"), filed a fifth amended complaint against the defendants, alleging as follows: count I, negligent misrepresentation (against UM); count II, retaliation in violation of First Amendment rights (by Allocco and Fernandez against the City); count III, conspiracy (against UM);¹ count VI (first), whistleblower claim in violation of Fla. Stat. §§ 448.102 et seq (by Allocco and Fernandez against UM).; count VI (second), violation of Florida's Racketeer Influence and Corrupt Organizations Act ("RICO") act, Fla. Stat. §§ 895.01 et seq. (against UM); count VII, violation of due process rights under the Fourteenth Amendment through a deprivation of a property and liberty interest (by Allocco and Fernandez against the City); count VIII, whistleblower claim in violation of Fla. Stat. §§ 112 et seq. (by Allocco and Fernandez against UM and the City); and count IX, violation of 42 U.S.C. § 1983 (by Allocco and Fernandez against the City). Through these claims, the plaintiffs, who were employed as UM public safety officers and part-time law enforcement officers of the City, seek to obtain the same benefits and pay as full-time City officers.

The defendants request summary judgment on each count of the complaint. They argue that the plaintiffs' misrepresentation, conspiracy, and RICO claims fail as a matter of law because neither the City nor UM ever made any misrepresentations to the plaintiffs. In support of this argument, the defendants have submitted a substantial amount of evidence to show that the plaintiffs always knew that they were being employed as part-time City officers, not full-time officers. As for the claims asserted by Allocco and Fernandez, the defendants contend that these plaintiffs were terminated because they refused to obey reasonable orders from their commanding officers. The defendants also contend that Allocco's and Fernandez's due process claims fail because they were not deprived of a constitutionally protected property or liberty interest. On July 19, 2002, the court heard oral argument on the defendants' motion for summary judgment. After carefully considering the motion, evidence, and arguments of counsel, the court grants the defendants' motion for summary judgment.

Introduction and Procedural History

The plaintiffs are all current or former public safety officers of UM's Public Safety Department ("UMPSD"). As UMPSD officers, they have been defined in a contract between UM and the City as full time employees of UM who are registered for administrative purposes with the Florida Department of Law Enforcement ("FDLE") as part-time law enforcement officers of the City. The contract between the City and UM took effect in 1969², and all of the plaintiffs were hired after the contract took effect. Through a succession of six complaints, the plaintiffs have attempted to gain the same rights, benefits, and privileges afforded to full-time law enforcement officers employed by the City. The plaintiffs claim that the defendants devised a scheme to deprive them of the same pay, benefits, and privileges as full-time City officers by falsely classifying them as part-time officers. According to the plaintiffs, the label of "part-time" was misleading because they all worked full-time shifts.

The plaintiffs filed their original complaint in state court on November 8, 1996. In their complaint, the plaintiffs asked the court to declare the 1969 contract null and void as an unlawful delegation of power and to declare them full-time law enforcement officers. The plaintiffs also brought a separate action against the City for breach of the collective bargaining agreement between the City and the Fraternal Order of Police, Lodge No. 7. The court dismissed the complaint on jurisdictional and standing grounds.

The plaintiffs amended their complaint on September 24, 1997, and raised new theories of relief. Although the plaintiffs enlisted two UM students to serve as plaintiffs to contest the validity of the 1969 contract, the court dismissed this claim for lack of standing. The plaintiffs also alleged that UM and the City made negligent misrepresentations to them regarding their employment status and the terms and conditions of their employment, but the court dismissed the claim for failure to plead with sufficient particularity.

On January 19, 1998, the plaintiffs filed their second amended complaint, which alleged negligent misrepresentation. On October 7, 1999, the plaintiffs amended their complaint further to assert federal claims. This complaint was removed to federal court.

On September 22, 2000, the plaintiffs filed a fifth amended complaint. Following rulings by this court on the defendants' motions to dismiss, counts IV and V were dismissed with prejudice from the fifth amended complaint, and the City was dismissed from counts I and III.

The Undisputed Facts³

I. Background Facts

A. The Relationship Between the City and UM

UM owns a university campus located within the City. In 1969, the City and UM entered into a contract whereby the parties agreed that if UM hired any persons "to act in the capacity of Police Officers", the City would pass on the officer's qualifications and swear him/her in as a "regular" police officer of the City with full arrest powers. (Def. Ex. 22 ¶ 1). The Contract goes on to define the status of such an officer:

Any Police Officers hired under the terms of this Agreement will be employees of and will be compensated by the University and therefore will not be eligible for retirement or other benefits which are provided by the City for its employees. It is contemplated that Police Officers hired by the University and sworn in by the City will perform their functions only on the campus of the University. It is understood, however, that a Police Officer may be required on occasion to exercise his authority off campus in connection with an occurrence on campus and, further that a Police Officer may be requested by the City to assist other police officers in an emergency situation even if such assistance is rendered off campus. It is understood by both parties that the Police Officers will not be subject to Trial Board hearings and will instead be disciplined by the University, provided, however, that the Chief of Police of the City will have the right to revoke the oath of office of any Police Officer for just cause.

(Def. Ex. 22 at ¶ 2) (emphasis added). The contract also provides that UM would pay for the officers' badges, guns, and uniforms, which would be subject to approval by the City's Chief. (Def. Ex. 22 at ¶ 3).

B. UM Officers' Classification for FDLE Purposes

From approximately February 18, 1976, through October of 1976, the City and UM engaged in various conversations with Louis Rausch, the Chief of FDLE's Police Standards and Training Commission, regarding the proper classification under which the City should be registering UM officers with the state. Chief Rausch advised that UM officers should be registered with the state as "part-time" officers because "the policing of UM campus is by contract whereby the personnel are sworn, in title and authority only, as regular Coral Gables police officers[,][t]hey derive no benefit as employees of the city and are strictly under the control of university management as a private institution." (Def.Ex. C). Section 943.10(6) defines a "part-time" law enforcement officer as "any person employed or appointed less than full time, as defined by an employing agency, with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state."⁴

On February 11, 1977, the City and UM modified their 1969 agreement to address Chief Rausch's concern. The modification stated, in pertinent part:

"[T]he Chief of the Bureau of Standards, a state agency, interprets the state law that the police officers employed by the University for security purposes on the University campus must be classified as `part-time police officers of the City'....

[E]ven though the police officers on the University campus are engaged by the University, and paid by the University, and controlled by the University, it is nevertheless, the position of the Bureau of Standards that said police officers be processed for Police Standards and Training Commission registration purposes as part-time Coral Gables police officers....

[I]f such...