Town of Gulf Stream v. Palm Beach Cnty.

• Decision Date: 21 December 2016
• Docket Number: No. 4D15–1753,4D15–1753
• Citation: 206 So.3d 721
• Parties: TOWN OF GULF STREAM, Village of Tequesta, City of Riviera Beach, Town of Jupiter, Town of Palm Beach Shores, Town of Manalapan, Town of Mangonia Park, City of Palm Beach Gardens, Town of Highland Beach, Town of Lake Park, City of West Palm Beach, Town of Ocean Ridge, and City of Boca Raton, municipal corporations of the State of Florida, Appellants, v. PALM BEACH COUNTY, a political subdivision, and Sharon R. Bock, in her Official Capacity as the Clerk and Comptroller of Palm Beach County, Florida, Appellees.
• Court: Florida District Court of Appeals

206 So.3d 721

TOWN OF GULF STREAM, Village of Tequesta, City of Riviera Beach, Town of Jupiter, Town of Palm Beach Shores, Town of Manalapan, Town of Mangonia Park, City of Palm Beach Gardens, Town of Highland Beach, Town of Lake Park, City of West Palm Beach, Town of Ocean Ridge, and City of Boca Raton, municipal corporations of the State of Florida, Appellants,

v.PALM BEACH COUNTY, a political subdivision, and Sharon R. Bock, in her Official Capacity as the Clerk and Comptroller of Palm Beach County, Florida, Appellees.

No. 4D15–1753

District Court of Appeal of Florida, Fourth District.

[December 21, 2016]

Jane Kreusler–Walsh and Stephanie L. Serafin of the Law Office of Kreusler–Walsh, Compiani & Vargas, P.A., West Palm Beach, and Douglas N. Yeargin, West Palm Beach, for Appellant City of West Palm Beach.

John C. Randolph of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for Appellant Town of Gulf Stream.

R. Max Lohman of Lohman Law Group, P.A., Jupiter, for Appellant City of Palm Beach Gardens.

Kenneth G. Spillias, Ocean Ridge, for Appellant Town of Ocean Ridge.

Glen J. Torcivia of Torcivia, Donlon, Goddeau & Ansay, P.A., West Palm Beach, for Appellant Town of Highland Beach

Pamala Hanna Ryan, Riviera Beach, for Appellant City of Riviera Beach.

Keith W. Davis of Corbett, White, Davis and Ashton, P.A., Lantana, for Appellants Village of Tequesta, Town of Palm Beach Shores, Town of Manalapan and Town of Mangonia Park.

Thomas Jay Baird of Jones, Foster, Johnston & Stubbs, P.A., Jupiter, for Appellants Town of Jupiter and Town of Lake Park.

Diana Grub Frieser, Boca Raton, for Appellant City of Boca Raton.

Leonard W. Berger, Helene C. Hvizd and Philip Mugavero, West Palm Beach for Appellee Palm Beach County.

Susan L. Trevarthen, Edward G. Guedes and Laura K. Wendell of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for Amicus Curiae Florida League of Cities.

Taylor, J.

In the wake of a series of local corruption scandals, a grand jury convened in 2009 to investigate county governance and public corruption. The grand jury recommended the creation of an Office of Inspector General ("OIG") with oversight and investigatory powers.

In November 2010, the voters of Palm Beach County approved a referendum amending the County Charter to establish an OIG applicable to both the County and all municipalities approving the amendment. The referendum stated that the program would be funded by the County Commission and all other governmental entities subject to the authority of the Inspector General. After the referendum passed, the County adopted an ordinance implementing the countywide OIG program and sought payment from all thirty-eight municipalities for their share of funding. Over a dozen of the municipalities refused to pay the invoices from the County on the grounds that the demand for payment violated sovereign immunity and constituted an unlawful tax.

The issue in this appeal concerns the legality of the ordinance requiring municipalities in Palm Beach County to contribute to the funding of the voter-mandated OIG program. The Town of Gulf Stream and other municipalities in Palm Beach County appeal a final declaratory judgment upholding the ordinance and ruling that the County may collect funds from the municipalities for the OIG program. We reverse the final judgment, concluding that sovereign immunity bars the County from forcibly charging the municipalities for the OIG program. We also certify a question of great public importance.

The referendum on the countywide OIG program specifically stated the following:

Shall the Palm Beach County Charter be amended to require the Board of County Commissioners to establish by ordinances applicable to Palm Beach County and all municipalities approving this amendment; a Code of Ethics, an independent Commission on Ethics funded by the County Commission, and an independent Inspector General funded by the County Commission and all other governmental entities subject to the authority of the Inspector General?

YES _____

NO _____

The referendum was approved by a majority of voters in Palm Beach County, including a majority of voters in each of the 38 municipalities within the County.

In May 2011, the Board of County Commissioners adopted an ordinance implementing the countywide OIG program. The implementing ordinance required the County and the municipalities to fund the OIG proportionately based on the actual expenses of each governmental entity. The implementing ordinance authorized the Office of the Clerk and Comptroller to bill each municipality on a quarterly basis. The implementing ordinance also set out the minimum "funding base" for the OIG program at an amount equal to 0.25% of certain vendor contracts.

Jess Santamaria, a county commissioner at the time of the referendum, would later testify that he was surprised the implementing ordinance did not specifically state that the OIG program would be funded with a 0.25% vendor contract fee. Santamaria explained that "the public was told that this was not going to be funded by public funds but primarily and exclusively by vendor fees."

In October 2011, the County Clerk & Comptroller sent invoices to the municipalities within the County, seeking payment for costs associated with the OIG program.

The following month, fifteen municipalities¹ filed suit against the County for declaratory relief, seeking a judgment declaring that the municipalities were not required to pay the expenses of the OIG program and that all expenses of the OIG program would be paid for solely by the County. The municipalities later filed an amended complaint, alleging in pertinent part that the charges to the municipalities for the OIG program were barred by sovereign immunity and constituted an unlawful tax.

Following a three-day bench trial, the trial court entered a final judgment in favor of the County. The court ruled that funding for the OIG program was not a discretionary budgeting decision, that the charges to the municipalities for the OIG program were not barred by the doctrine of sovereign immunity, that the citizens of the municipalities entered into a contract on behalf of their governing bodies to fund the OIG, and that the charges for the OIG program constituted a valid user fee or regulatory fee rather than an unlawful tax.

The trial court denied the municipalities' motion for rehearing, and this appeal followed.

On appeal, the municipalities contend that the trial court erred in concluding that the County could force them to pay for the OIG program by way of a referendum vote. The municipalities argue that sovereign immunity protects them from forced payment for the OIG program, unless waived by general law or contract. The municipalities contend that neither type of waiver occurred here.

In response, the County argues that by approving the referendum, the voters in the municipalities approved the funding for the OIG, thus eliminating any discretion on the part of the municipalities to avoid funding the program. The referendum and implementing ordinance, the County argues, was a proper exercise of the County's broad, residual power of self-government.

The issue of sovereign immunity is a legal issue subject to the de novo standard of review. Plancher v. UCF Athletics Ass'n , 175 So.3d 724, 725 n.3 (Fla. 2015).

Sovereign immunity protects the sovereign from being sued without its consent. City of Fort Lauderdale v. Israel , 178 So.3d 444, 446 (Fla. 4th DCA 2015). Under Florida law, sovereign immunity is the rule, rather than the exception. Pan–Am Tobacco Corp. v. Dep't of Corr. , 471 So.2d 4, 5 (Fla. 1984). Any waiver of sovereign immunity "must be clear and unequivocal." Manatee Cty. v. Town of Longboat Key , 365 So.2d 143, 147 (Fla. 1978).

Although municipal sovereign immunity was historically less broad than the sovereign immunity afforded to states, "[i]mmunity was always deemed to have existed for legislative, quasi-legislative, judicial and quasi-judicial acts of municipalities." Commercial Carrier Corp. v. Indian River Cty. , 371 So.2d 1010, 1015–16 (Fla. 1979). Furthermore, since 1968, municipalities, counties, and school districts have been in constitutional parity with one another. Cauley v. City of Jacksonville , 403 So.2d 379, 385 (Fla. 1981). Accordingly, the Florida Supreme Court has declared that "sovereign immunity should apply equally to all constitutionally authorized governmental entities and not in a disparate manner." Id. at 387. "Municipalities can no longer be identified as partial outcasts as opposed to other constitutionally authorized local governmental entities."² Id. at 386.

Where governmental actions are deemed discretionary, as opposed to operational, the government enjoys sovereign immunity. Commercial Carrier Corp. , 371 So.2d at 1020–22. Discretionary or planning level functions "are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy." Id. at 1021.

A local government's decision to allocate scarce public resources is a discretionary, policy-making decision. Dennis v. City of Tampa , 581 So.2d 1345, 1351 (Fla. 2d DCA 1991). Indeed, budgetary considerations and fundamental questions of policy are discretionary matters outside the realm of courts, and are therefore shielded by sovereign immunity. State, Dep't of Health & Rehab. Servs. v. Lee , 665 So.2d 304, 307 (Fla. 1st DCA 1995).

Moreover, referendum provisions in a local government's charter are generally inapplicable to matters of appropriation and fiscal management. See State ex rel. Keefe v. City of St. Petersburg , 106 Fla. 742, 145 So. 175, 175 (1933) ("To hold that the initiative and referendum provisions of the charter are applicable to appropriation ordinances, would materially obstruct, if not entirely defeat, the purpose of having a budget system."); but compare Op. Att'y Gen. Fla. 09–12 (2009) (a municipal charter may be amended pursuant to a petition initiative to require...