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1D20-______
IN THE DISTRICT COURT OF APPEAL FOR THE FIRST DISTRICT, STATE OF FLORIDA
________________________________________
DIVISION OF ADMINISTRATIVE HEARINGS,
Petitioner,
v.
JOHN G. VAN LANINGHAM,
Respondent.
PETITION FOR WRIT OF CERTIORARI
PUBLIC EMPLOYEES RELATIONS COMMISSION CASE NO. CS-2020-021
_______________________________________
DANIEL E. NORDBY (FBN 14588) AMBER STONER NUNNALLY (FBN 109281)
SHUTTS & BOWEN LLP 215 South Monroe Street, Suite 804
Tallahassee, FL 32301 (850) 241-1717
[email protected] [email protected]
Counsel for Petitioner
Filing # 110171065 E-Filed 07/13/2020 05:51:57 PM
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TABLE OF CONTENTS
Page
-i-
TABLE OF AUTHORITIES ................................................................................... ii
PETITION FOR WRIT OF CERTIORARI ............................................................. 1
BASIS FOR INVOKING JURISDICTION ............................................................. 1
STATEMENT OF RELEVANT FACTS ................................................................. 2
NATURE OF RELIEF SOUGHT ............................................................................ 9
ARGUMENT .......................................................................................................... 10
I. THE PERC HEARING OFFICER DEPARTED FROM THE ESSENTIAL
REQUIREMENTS OF LAW IN DENYING THE AGENCY’S MOTION TO QUASH
DIRECTOR MACIVER’S SUBPOENA ................................................................. 11
A. The testimony the Employee seeks to elicit from Director MacIver is neither necessary for nor relevant to this career service appeal ..................................................................................... 12
B. Any relevant testimony the Employee could elicit from Director MacIver is available from other sources ............................................ 16
II. AN ORDER REQUIRING COMPELLED TESTIMONY FROM AN AGENCY HEAD
IN CONTRAVENTION OF THE APEX DOCTRINE CONSTITUTES IRREPARABLE
HARM TO THE AGENCY AS A MATTER OF LAW ................................................ 20
CONCLUSION ....................................................................................................... 21
CERTIFICATE OF SERVICE ............................................................................... 22
CERTIFICATE OF COMPLIANCE ...................................................................... 23
TABLE OF AUTHORITIES
Page(s)
ii
Cases
Dep’t of Agric. & Consumer Servs. v. Broward Cnty, 810 So. 2d 1056 (Fla. 1st DCA 2002) ................................................................ 16
Dep’t of Health & Rehab. Servs. v. Brooke, 573 So. 2d 363 (Fla. 1st DCA 1991) .................................................................. 11
Fla. Office of Ins. Reg. v. Fla. Dep’t of Fin. Servs., 159 So. 3d 945 (Fla. 1st DCA 2015) ................................................ 11, 12, 17, 20
Horne v. Sch. Bd. of Miami-Dade Cnty., 901 So. 2d 238 (Fla. 1st DCA 2005) .................................................. 2, 10, 11, 20
Miami Dade College v. Allen, 271 So. 3d 1194 (Fla. 3d DCA 2019) ........................................................... 11, 18
Miami-Dade Cnty. v. Dade Cnty. Police Benev. Ass’n, 103 So. 3d 236 (Fla. 3d DCA 2012) ......................................................... 2, 10, 21
SCF, Inc. v. Dep’t of Bus. & Prof. Reg. and Calder Race Course, Inc., No. 19-4245RU, 2020 WL 1318422 (Fla. DOAH Mar. 13, 2020) .................. 3, 7
Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019), rev. granted, SC19-1998, 2019 WL 6971545 (Fla. Dec. 19, 2019) ............................................................. 11
Univ. of N. Fla. v. Career Serv. Comm’n, 452 So. 2d 87 (Fla. 1st DCA 1984) .................................................................... 12
Univ. of W. Fla. Bd. of Trustees v. Habegger, 125 So. 3d 323 (Fla. 1st DCA 2013) .................................................................. 16
Statutes
§ 110.227(1), Fla. Stat. ............................................................................................. 15
§ 110.227(5)(a), Fla. Stat. .......................................................................................... 5
§ 110.227(6)(a), Fla. Stat. ........................................................................................ 19
TABLE OF AUTHORITIES (Continued)
Page(s)
-iii-
§ 110.227(6)(c), Fla. Stat. .................................................................................. 12, 15
§ 120.569(2)(k), Fla. Stat. ........................................................................................ 20
§ 120.65(1), Fla. Stat. ............................................................................................... 12
§ 120.66(1)(a), Fla. Stat. ............................................................................................ 3
§ 120.66(2), Fla. Stat. ................................................................................................. 3
§ 120.66(3), Fla. Stat. ................................................................................................. 4
§ 120.68(7), Fla. Stat. ............................................................................................... 19
Other Authorities
Art. V, § 4(b)(3), Fla. Const. ...................................................................................... 1
Fla. Admin. Code R. 28-106.212(3) ........................................................................ 20
Fla. Admin. Code R. 60L-36.005(3) .............................................................. 4, 12, 13
Fla. R. App. P. 9.020(h) ............................................................................................. 1
Fla. R. App. P. 9.030(b)(3) ........................................................................................ 1
Fla. R. App. P. 9.100(c) ............................................................................................. 1
1
PETITION FOR WRIT OF CERTIORARI
The Division of Administrative Hearings (“Agency”) petitions this Court
under Florida Rule of Appellate Procedure 9.100(c) for a writ of certiorari to
review an order entered by a hearing officer of the Public Employees Relations
Commission (“PERC”). The order denies a motion to quash a subpoena
compelling the Agency’s former Director and Chief Administrative Law Judge to
testify at an administrative hearing involving the disciplinary suspension of a
career service employee. A copy of the order appears at pages 471-72 of the
accompanying Appendix.1 The order departs from the essential requirements of the
law addressing compelled testimony by current and former agency heads and will
cause the Agency irreparable harm as a matter of law. This Court should grant the
petition for writ of certiorari and quash the hearing officer’s order.
BASIS FOR INVOKING JURISDICTION
This Court is authorized to issue writs of certiorari. Art. V, § 4(b)(3), Fla.
Const.; see also Fla. R. App. P. 9.030(b)(3). The order to be reviewed was
rendered on June 26, 2020, when it was filed with the clerk of the Public
Employees Relations Commission. Fla. R. App. P. 9.020(h). This petition is timely
because it was “filed within 30 days of rendition of the order to be reviewed.” Fla.
R. App. P. 9.100(c).
1 Citations to the Appendix will appear as: App. [PDF page #].
2
A writ of certiorari is the proper remedy for seeking review of a PERC
hearing officer’s order denying a motion to quash a subpoena that departs from the
essential requirements of the law. See, e.g., Miami-Dade Cnty. v. Dade Cnty.
Police Benev. Ass’n, 103 So. 3d 236, 238 (Fla. 3d DCA 2012); Horne v. Sch. Bd.
of Miami-Dade Cnty., 901 So. 2d 238, 240 (Fla. 1st DCA 2005).
STATEMENT OF RELEVANT FACTS
The dispute in this case arises from Respondent John G. Van Laningham’s
appeal to the Public Employees Relations Commission of disciplinary action taken
against him by his employer, the Division of Administrative Hearings. Respondent
Van Laningham (“Employee”) is an administrative law judge (“ALJ”) and a career
service employee. The following facts are relevant to this petition:
Shortly after taking office in 2019, Director and Chief Administrative Law
Judge John MacIver (“Director MacIver”)2 instituted a practice of reviewing draft
recommended and final orders prepared by the Agency’s ALJs prior to their
issuance. App. 74. On some draft orders, Director MacIver would provide
feedback to the ALJ in the form of comments or suggested edits. Id. Each ALJ was
free to accept or reject Director MacIver’s suggested edits to their draft orders. Id.
2 During the pendency of the proceeding below, MacIver resigned as the Director and Chief Administrative Law Judge of the Agency to accept a position as General Counsel to Florida Chief Financial Officer Patronis.
3
Consistent with that practice, Director MacIver reviewed and provided
comments on draft final orders prepared by the Employee. On March 13, 2020,
Director MacIver offered substantive and technical comments to the Employee on
one such draft final order. App. 76-80. That same day, the Employee issued the
final order with the following two footnotes:
10 On October 17, 2019, the agency head of DOAH began systematically reviewing every final order and recommended order prior to, and as a prerequisite of, its issuance. Pursuant to this review, the director makes written “comments and suggested edits” on some, but not all, orders. Although the presiding officer is not required to accept the director’s suggested edits, he is not given the option of declining the director’s review. As a result, the undersigned received two comments, one on the paragraph above and the other on paragraph 30 of this Final Order, which are, at least arguably, “relative to the merits,” and hence which are, or might be, ex parte communications prohibited by section 120.66(1)(a), Fla. Stat. (no “ex parte communication relative to the merits” shall be made to the presiding officer by “[a]n agency head,” among others). Erring on the side of caution and disclosure, the undersigned hereby places on the record the director’s comment concerning paragraph 24: “This is the crux of your most defensible finding.” Any party desiring to rebut this communication shall be allowed to do so in accordance with section 120.66(2).
11 The undersigned hereby places on the record the director’s comment regarding paragraph 30: “Finding the agency’s future intent as a matter of fact is troubling.” Any party desiring to rebut this communication shall be allowed to do so in accordance with section 120.66(2).
SCF, Inc. v. Dep’t of Bus. & Prof. Reg. and Calder Race Course, Inc., No. 19-
4245RU, 2020 WL 1318422 (Fla. DOAH Mar. 13, 2020) (Final Order).
4
Under section 120.66(3) of the Florida Statutes, any person making a
prohibited ex parte communication, and any presiding officer who fails to place in
the record any prohibited ex parte communication, “is in violation of [the
Administrative Procedure Act] and may be assessed a civil penalty not to exceed
$500 or be subjected to other disciplinary action.”
Before issuing the final order suggesting that Director MacIver’s comments
on his draft final order may have constituted a prohibited ex parte communication,
the Employee did not address or attempt to resolve any of his purported concerns
with his direct supervisor, Senior ALJ Bob Cohen (who, at all relevant times, was
also acting as Deputy Chief ALJ), or with Director MacIver himself. App. 34.
In response to the Employee’s actions, Senior ALJ Cohen prepared a
memorandum outlining his concerns and his conclusion that the Employee’s
actions constituted insubordination or misconduct under Florida law. App. 34-38.
Senior ALJ Cohen’s memorandum recommended a five-day suspension as
appropriate discipline for the Employee’s actions. App. 38. On March 19, 2020,
the Agency notified the Employee of its intent to suspend him for five days
without pay for insubordination and misconduct in violation of Florida
Administrative Code Rule 60L-36.005(3). App. 32-44. The memorandum prepared
by Senior ALJ Cohen describing the reasons for the Agency’s intended
disciplinary action was attached to the written notice provided to the Employee. Id.
5
In accordance with section 110.227(5)(a), Florida Statutes, the Employee
requested a predetermination conference with the Agency to address the
disciplinary charges against him. App. 99. A predetermination panel consisting of
two of the Employee’s colleagues (ALJs Li Nelson and Gar Chisenhall) held a
conference with the Employee and his legal counsel on March 25, 2020. Id. The
following day, ALJ Nelson submitted a memorandum on behalf of the
predetermination panel concluding that the charges in the notice of intent to
suspend were warranted. App. 99-101. The predetermination panel concluded that
the Employee’s explanation for including the footnotes in his final order was not
“reasonable” or “well-founded.” App. 101. The predetermination panel further
concluded that, if the Employee believed it was improper for Director MacIver to
provide comments on a draft order, it was incumbent upon the Employee to
address the issue and explain his concerns with his direct supervisor (Senior ALJ
Cohen) or with Director MacIver before releasing a written order suggesting that
Director MacIver’s comments may have constituted a prohibited ex parte
communication. Id.
On March 27, 2020, the Agency notified the Employee of its final decision
to suspend him for five days without pay effective April 1, 2020. App. 103. The
Agency’s Notice of Action of Suspension stated that the disciplinary action was
based upon the recommendation of the Employee’s supervisor (Chief ALJ Cohen)
6
and the recommendation of the predetermination hearing panel (ALJ Nelson and
ALJ Chisenhall). Id. The Employee was also advised of his right to appeal the
suspension to PERC. Id.
The Employee filed a timely career service appeal to PERC challenging the
Agency’s disciplinary action. App. 6-114. A hearing officer was assigned and an
evidentiary hearing was set for June 29, 2020. App. 153-56, 176. The Employee
engaged in extensive motion practice at PERC, filing four motions in limine, three
motions for attorney’s fees, a motion to strike, and other requests for pre-hearing
relief.3 App. 22-30, 116-32, 133-40, 141-50, 163-69, 196-316, 317-38, 368-73,
397-415. Throughout those filings, the Employee has alleged that the Agency took
disciplinary action against him for reasons other than those outlined in the
Agency’s charging documents. See, e.g., App. 391 (alleging in a motion for
attorney’s fees that the Agency’s disciplinary action was “retaliatory, pretextual,
and orchestrated to promote silence, secrecy, and subterfuge”).
In advance of the evidentiary hearing, the Employee served the Agency’s
counsel with five subpoenas directing certain Agency employees to appear and
testify at the hearing. App. 360-67. One of the subpoenas was directed to Director
3 The PERC hearing officer denied three of the Employee’s motions in limine and the motion to strike. App. 180-81, 192. One motion in limine remains pending as of July 13, 2020. The hearing officer reserved ruling on the motions for attorney’s fees App. 353-54.
7
MacIver. App. 364. The Employee also filed a Pre-Hearing Statement including
the names of the witnesses he intended to call at the evidentiary hearing and a brief
statement of the material facts about which each witness was expected to testify.
App. 384-92. The Employee included Director MacIver on his witness list and
stated the following as to his expected testimony:
John MacIver is expected to testify regarding the material facts leading to Judge Van Laningham’s suspension and all related matters thereto; the October 2019 directive and all related matters thereto; MacIver’s appointment as Director and Chief Judge of the Agency and all matters related thereto; MacIver’s substantive involvement in SCF, Inc. v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering and Calder Race Course, Inc., Case No. 19-4245RU (the “SCF case) and The Florida Horsemen’s Benevolent and Protective Association, Inc. v. Calder Race Course, Inc. and Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering and Calder Race Course, Inc., [sic] Case No. 18-4997 (the “FHBPA” case); the agencies that MacIver represented while employed as Deputy General Counsel for both Governor Rick Scott and Governor DeSantis; and all public records requests issued by Judge Van Laningham from March 2019 to present and the Agency’s responses thereto.
App. 384-85. The Employee also provided the Agency with 33 exhibits he intends
to introduce at the evidentiary hearing, many of which relate to the testimony he
apparently intends to elicit from Director MacIver. App. 422.
The Agency moved to quash Director MacIver’s subpoena on the grounds
that it is prohibited by Florida’s well-established apex doctrine, which generally
prohibits compelled testimony from current and former agency heads. App. 430-
435. The Agency argued that the Employee failed to demonstrate the testimony he
8
seeks from Director MacIver is necessary, relevant, and unavailable from other
sources, such as a lower-ranking government official. App. 432. The Agency’s
motion to quash noted that both the Employee and the Agency itself had included
on their respective witness lists several other individuals capable of testifying
about the Employee’s actions and the facts leading to his disciplinary suspension,
including Senior ALJ Cohen, ALJ Nelson, and ALJ Chisenhall. App. 433.
In a written response, the Employee argued that Director MacIver’s
testimony at the evidentiary hearing is necessary because he has “personal
knowledge of relevant facts regarding actions [Director MacIver] took prior to his
brief tenure as DOAH’s director.” App. 454. The Employee further argued that he
had “exhausted the only discovery tool available to him” by submitting public
records requests. Id. The Employee acknowledged that he attempted to take no
discovery other than public records requests, notwithstanding the availability of
discovery in PERC proceedings upon an appropriate showing. App. 460. Finally,
the Employee stated that Director MacIver is a “material witness whose testimony
is both necessary to [the Employee’s] defense, and unavailable from other
sources.” App. 454.
The PERC hearing officer, without conducting a hearing, entered a two-page
order denying the Agency’s motion to quash Director MacIver’s subpoena. App.
471-72. The order stated that Director MacIver’s testimony is “relevant to the crux
9
of the issues in this matter”—whether the Agency had cause to discipline the
Employee and whether the Employee is entitled to attorney’s fees. App. 472. The
PERC hearing officer further concluded—without any explanation—that Director
MacIver’s testimony is “unavailable from a lesser ranking officer.” Id. On these
points, the order stated only that “[i]t does not appear that Van Laningham can
adequately assert a defense to the charges against him or bear his burden of
proving the charges were brought for an improper or frivolous purpose without
MacIver’s unique testimony.” Id.
After the Agency stated its intent to seek appellate review of the hearing
officer’s order, the underlying proceeding was stayed by agreement of the parties.
App. 481. This petition for writ of certiorari followed.
NATURE OF RELIEF SOUGHT
Under well-settled precedent, current and former government agency heads
cannot be compelled to testify at a deposition or trial unless and until the opposing
party has demonstrated the testimony is necessary, relevant, and unavailable from
other sources such as a lesser-ranking official. The hearing officer’s order denying
the Agency’s motion to quash a subpoena directed to the Agency’s former Director
and Chief Administrative Law Judge departs from the essential requirements of the
law in a manner constituting irreparable harm to the Agency as a matter of law.
10
The Agency asks this Court to grant the petition for writ of certiorari and quash the
hearing officer’s order under review.
ARGUMENT
A PERC hearing officer’s order compelling the testimony of a current or
former agency head may be reviewed by certiorari. See Dade Cnty. Police Benev.
Ass’n, 103 So. 3d at 238 (granting petition for writ of certiorari and quashing
PERC hearing officer’s order denying motion to quash subpoena of county mayor).
“[T]o demonstrate an entitlement to certiorari relief, a petitioner must show that the
order under review departs from the essential requirements of law and that the
order will cause irreparable harm that cannot be remedied on plenary appeal.”
Horne, 901 So. 2d at 240.
Here, without holding a hearing, the PERC hearing officer entered an order
denying a motion to quash a subpoena compelling the Agency’s former Director
and Chief Administrative Law Judge to testify at an administrative hearing
involving the disciplinary suspension of a career service employee. App. 471-472.
The PERC hearing officer’s order denying the Agency’s motion to quash departs
from the essential requirements of the law in a manner constituting irreparable
harm to the Agency as a matter of law. This Court should grant the petition for
certiorari and quash the order under review.
11
I. THE PERC HEARING OFFICER DEPARTED FROM THE ESSENTIAL
REQUIREMENTS OF LAW IN DENYING THE AGENCY’S MOTION TO QUASH
DIRECTOR MACIVER’S SUBPOENA.
In Florida, high-ranking government officials may not be compelled to
testify unless and until the opposing party has demonstrated the testimony is
necessary, relevant, and unavailable from other sources such as a lesser-ranking
official. Miami Dade College v. Allen, 271 So. 3d 1194 (Fla. 3d DCA 2019); Fla.
Office of Ins. Reg. v. Fla. Dep’t of Fin. Servs., 159 So. 3d 945, 950 (Fla. 1st DCA
2015); Dep’t of Health & Rehab. Servs. v. Brooke, 573 So. 2d 363, 371 (Fla. 1st
DCA 1991). This principle is known as the apex doctrine due to its applicability to
officials at the “apex” or head of an organization. Fla. Office of Ins. Reg., 159 So.
3d at 950. The apex doctrine “is rooted in separation of powers considerations, as
well as policy concerns that overly burdensome requirements for public officials
could discourage people from accepting positions as public servants.” Id. For these
same reasons, the apex doctrine also applies to former agency heads and high-
ranking government officials. See Horne, 901 So. 2d at 241 (quashing deposition
of former commissioner of education). This Court has recently characterized
Florida’s apex doctrine as “clearly established” with respect to high-ranking
government officials, leaving only the question of the apex doctrine’s extension to
corporate officers. Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107, 1109 (Fla. 1st
DCA 2019), rev. granted, SC19-1998, 2019 WL 6971545 (Fla. Dec. 19, 2019).
12
Under section 120.65(1) of the Florida Statutes, the Chief Judge and
Director of the Division of Administrative Hearings “shall be its agency head for
all purposes.” The Employee’s subpoena directed to John MacIver, the former
Chief Judge and Director of the Agency, was therefore required to be quashed
under binding Florida precedent because the Employee failed to demonstrate the
testimony he seeks from Director MacIver is: 1) necessary; 2) relevant; and 3)
unavailable from other sources, such as a lower ranking government official. Fla.
Office of Ins. Reg., 159 So. 3d at 950. The PERC hearing officer departed from the
essential requirements of law in denying the Agency’s motion to quash the
subpoena of Director MacIver.
A. The testimony the Employee seeks to elicit from Director MacIver is neither necessary for nor relevant to this career service appeal.
To determine the necessity of a former agency head’s testimony, the court
must “look at the crux of the cause of action” in the lower tribunal. Fla. Office of
Ins. Reg., 159 So. 3d at 951.
In the underlying career service appeal pending before the PERC hearing
officer, the Agency bears the burden to prove that it had “cause” to suspend the
Employee for five days without pay. See Univ. of N. Fla. v. Career Serv. Comm’n,
452 So. 2d 87, 88 (Fla. 1st DCA 1984); see also § 110.227(6)(c) (explaining that
PERC’s role is to determine whether there was “cause” for the agency action); Fla.
Admin. Code R. 60L-36.005(3) (providing that career service employees may be
13
suspended for “cause”). Cause exists when a career service employee violates one
of the standards of conduct in Rule 60L-36.005(3). In this case, the Employee was
suspended for insubordination and misconduct, which are outlined in Rule 60L-
36.005(3) as follows:
(d) Insubordination. Employees shall follow lawful orders and carry out the directives of persons with duly delegated authority. Employees shall resolve any differences with management in a constructive manner.
(g) Misconduct. Employees shall refrain from conduct, which, though not illegal or inappropriate for a state employee generally, is inappropriate for person in the employee’s particular position. . . .
The “crux” of the action pending before the PERC hearing officer therefore
involves the actions taken by the Employee, as discussed in the Agency’s charging
documents, and whether that conduct amounts to insubordination or misconduct as
a matter of law. The only facts that are “necessary” and “relevant” to the crux of
this career service appeal are those involving the Employee’s conduct and the
Agency’s response to that conduct through its disciplinary process. The events
underlying the Employee’s suspension occurred in March 2020, when the
Employee received comments from Director MacIver on a draft final order and
then released the final order suggesting that the comments may have constituted a
prohibited ex parte communication without first addressing any of his purported
concerns with his supervisors. App. 34-38, 99-101. The Agency’s disciplinary
14
process also took place in March 2020, from March 19 to March 27. App. 32-33,
103.
In his Prehearing Statement, however, the Employee states that he expects
Director MacIver to testify, among other things, about his “appointment as
Director and Chief Judge of the Agency” in 2019; his alleged “substantive
involvement” in two cases at DOAH before his appointment as Director and Chief
Judge; the “agencies that MacIver represented” while employed as a Deputy
General Counsel to two governors; and “all public records requests issued by
Judge Van Laningham from March 2019 to present and the Agency’s responses
thereto.” App. 384-85. The PERC hearing officer’s order does not explain how any
of these topics are both “necessary” and “relevant” to the crux of the proceeding:
whether the Agency had cause to suspend the Employee for insubordination or
misconduct based on the factual allegations in the charging documents. App. 471-
72.
The Employee has made numerous disparaging allegations in his filings at
PERC regarding Director MacIver (and others) that go far beyond the narrow
scope of the underlying career service appeal. For example, the Employee has
alleged that Director MacIver “is a walking, talking conflict of interest who has
repeatedly engaged in ethically questionable conduct that cannot possibly be
viewed as correct under any theory” and suggests that the three ALJs who
15
recommended disciplinary action against the Employee for his actions did so based
on their own “personal interest[s]” or out of “fear of reprisal” from Director
MacIver. App. 199, 211-12.
The Employee’s apparent desire to transform an administrative proceeding
about whether his own conduct fell below the standards expected of a career
service employee into a platform for the airing of grievances about his supervisors
and colleagues is an insufficient basis to require compelled testimony from an
agency head in contravention of the longstanding apex doctrine. Likewise, the
testimony the Employee apparently seeks to elicit regarding “MacIver’s
appointment as Director and Chief Judge of the Agency and all matters related
thereto”; “the agencies that MacIver represented” while employed as Deputy
General Counsel to two governors; and “all public records requests issued by
Judge Van Laningham from March 2019 to present and the Agency’s responses
thereto” is neither “necessary” nor “relevant” to the crux of the issues in the
Employee’s career service appeal: whether the Employee’s actions constituted
misconduct or insubordination under Florida law and therefore whether “cause”
existed for the Agency’s disciplinary action. § 110.227(1), (6)(c), Fla. Stat.
Under the apex doctrine, the Employee cannot compel the former head of
the Agency to testify regarding those unnecessary and irrelevant allegations. The
Employee’s attempt to compel irrelevant and unnecessary testimony is precisely
16
the type of undue burden the apex doctrine is intended to prevent. See generally
Univ. of W. Fla. Bd. of Trustees v. Habegger, 125 So. 3d 323, 324-26 (Fla. 1st
DCA 2013) (granting petition for certiorari and quashing order compelling
deposition of university president in employment dispute where former employee
did not exhaust other discovery and sought information that was unnecessary and
irrelevant to cause of action). The PERC hearing officer’s order under review
constitutes a clear departure from the essential requirements of the law because it
does not establish that the testimony the Employee seeks to elicit from former
Director MacIver is both necessary and relevant to the issues in the underlying
career service appeal.
B. Any relevant testimony the Employee could elicit from Director MacIver is available from other sources.
In addition to the unnecessary and irrelevant areas of inquiry discussed
above, the Employee also stated in his Prehearing Statement that he expects to
elicit testimony from Director MacIver regarding “the material facts leading to
Judge Van Laningham’s suspension.” App. 384. Although this area of testimony
may be relevant to the crux of the career service appeal, the Employee failed to
establish (and cannot establish) that Director MacIver is “uniquely able to provide
relevant information” about the Employee’s conduct that led to his suspension that
is unavailable from a lesser ranking officer. See Dep’t of Agric. & Consumer Servs.
v. Broward Cnty, 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002) (concluding that ALJ
17
abused his discretion in denying a motion for protective order to preclude the
deposition of an agency head); Fla. Office of Ins. Reg., 159 So. 3d at 951-53
(quashing circuit court order compelling insurance commissioner to appear for
deposition where information sought was not necessary to the cause of action and
was within the knowledge of others).
In this case, Director MacIver is plainly not the only person aware of the
relevant facts regarding the Employee’s suspension. The record reflects that the
initial disciplinary recommendation came in a memorandum from Senior ALJ
Cohen. App. 34-38. The predetermination panel composed of ALJ Nelson and ALJ
Chisenhall held a conference at which the Employee and his counsel were
provided an opportunity to address the charges, and the panel subsequently issued
a separate memorandum concluding that the charges in the notice of intent to
suspend were warranted. App. 99-101. Each of these individuals is at least as
capable as Director MacIver of providing testimony regarding the “material facts
leading to Judge Van Laningham’s suspension.” Indeed, they are the individuals
who reviewed the Employee’s actions and recommended his suspension.
Further supporting the common-sense notion that Director MacIver is not
“uniquely able to provide relevant information” regarding the Employee’s
suspension is the fact that the Employee himself included both Senior ALJ Cohen
and ALJ Chisenhall on his own witness list to testify about the same topic. App.
18
385-86. The Agency’s witness list also includes Senior ALJ Cohen and ALJ
Chisenhall, as well as ALJ Nelson and Agency employee Lisa Mustain, all of
whom are expected to testify about the Employee’s conduct that led to the
Agency’s disciplinary action against him. App. 394-95.
Under Florida’s well-established apex doctrine, the Employee is not entitled
to obtain compelled hearing testimony from Director MacIver regarding
nonunique, duplicative matters that are clearly available from—and will in fact be
provided by—sources other than the former agency head. See Miami Dade
College, 271 So. 3d at 1197 (granting petition for writ of certiorari and quashing
order allowing former employee to depose college president without first
exhausting other discovery tools and demonstrating that information sought was
necessary and unavailable from other sources).
In his response to the Agency’s motion to quash, the Employee argued that
the apex doctrine does not apply to Director MacIver’s subpoena because he had
already “exhausted the only discovery tool available to him” by making public
records requests to the Agency and the Department of Business and Professional
Regulation after he received the Agency’s notice of intent to suspend him. App.
454, 460. But the Employee cited no authority to support his assertion that
submitting a public records request satisfies the concerns underlying the
exhaustion requirement in the cases applying the apex doctrine. And the Employee
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has acknowledged that he attempted to take no discovery other than public records
requests, notwithstanding the availability of discovery in PERC proceedings upon
an appropriate showing. App. 460; see also § 110.227(6)(a), Fla. Stat. (providing
for discovery “upon the showing of extraordinary circumstances” where a party
demonstrates “a substantial need for the information requested and an inability to
obtain relevant information by other means”).
The Employee never even attempted to make such a showing in the
underlying proceeding. The Employee never attempted to take any discovery
(other than through a public records request) before serving a subpoena for trial
testimony by an agency head. And the PERC hearing officer—without holding a
hearing—issued an order denying the Agency’s motion to quash without
demanding that the Employee satisfy the strict requirements of the apex doctrine
by demonstrating that any relevant testimony he sought to elicit from Director
MacIver was unavailable from lesser ranking officers. The order denying the
Agency’s motion to quash therefore constitutes a clear departure from the essential
requirements of the law. This Court should quash the hearing officer’s order and
remand. See § 120.68(7), Fla. Stat. (providing that the appellate court shall remand
for further proceedings or set aside agency action, as appropriate, when “there has
been no hearing prior to agency action and the reviewing court finds that the
validity of the action depends upon disputed facts” or when the agency “has
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erroneously interpreted a provision of law and a correct interpretation compels a
particular action”).
* * * * * * * * * *
The PERC hearing officer, as the presiding officer in this career service
appeal, had the authority to quash the subpoena seeking to compel Director
MacIver to testify at the evidentiary hearing previously scheduled for June 29,
2020. See § 120.569(2)(k), Fla. Stat. (granting presiding officer authority to
“invalidate” subpoenas; Fla. Admin. Code R. 28-106.212(3) (requiring motions to
quash subpoenas be filed with presiding officer). For each of the reasons described
above, the hearing officer departed from the essential requirements of law in
denying—without a hearing—the Agency’s motion to quash Director MacIver’s
subpoena.
II. AN ORDER REQUIRING COMPELLED TESTIMONY FROM AN AGENCY HEAD IN
CONTRAVENTION OF THE APEX DOCTRINE CONSTITUTES IRREPARABLE
HARM TO THE AGENCY AS A MATTER OF LAW.
This Court has recognized that certiorari is the appropriate remedy to
address orders requiring compelled testimony by an agency head because the harm
to the party asserting the apex doctrine cannot be remedied in a subsequent
appellate proceeding. See Fla. Office of Ins. Reg., 159 So. 3d at 953; Horne, 901
So. 2d at 240. Here, if the Agency’s former Director and Chief Administrative Law
Judge is compelled to provide trial testimony and it is later determined on direct
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appeal that the PERC hearing officer erroneously denied the Agency’s motion to
quash, the resulting injury to the Agency cannot be remedied in the direct appeal
and is irreparable as a matter of law. Miami-Dade Cnty., 103 So. 3d at 238.
CONCLUSION
This Court should grant the petition and issue a writ of certiorari quashing
the hearing officer’s order entered on June 26, 2020, which denied the Agency’s
motion to quash the subpoena of Director and Chief Administrative Law Judge
John MacIver.
Respectfully submitted, /s/ Daniel Nordby DANIEL E. NORDBY (FBN 14588) [email protected] AMBER S. NUNNALLY (FBN 146854) [email protected] SHUTTS & BOWEN LLP 215 South Monroe Street, Suite 804 Tallahassee, FL 32301 850-241-1717 Counsel for Division of Administrative Hearings
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been filed
with the ePortal website and served on July 13, 2020, to the following counsel of
record:
Daniel K. Bean Jacqueline A. Van Laningham Abel Bean Law P.A. 50 North Laura Street, Suite 2500 Jacksonville, Florida 32202 [email protected] [email protected] Ronald V. Swanson [email protected] Counsel for John G. Van Laningham I further certify that on July 13, 2020, in accordance with Florida Rule of
Appellate Procedure 9.100(b)(3), a copy of this petition was served by U.S. mail
to:
Janeia Ingram, Hearing Officer Public Employees Relations Commission 4708 Capital Circle Northwest, Suite 300 Tallahassee, Florida 32303
/s/ Daniel E. Nordby ATTORNEY
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CERTIFICATE OF COMPLIANCE
I hereby certify that this petition was prepared in Times New Roman, 14-
point font, in compliance with Florida Rule of Appellate Procedure 9.100(l).
/s/ Daniel E. Nordby ATTORNEY
