06-5233 CITY OF JACKSONVILLE, SHERIFF

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State: Florida

Court: Florida First District Court

Docket No: 06-5233

Case Date: 12/17/2007

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CITY OF JACKSONVILLE, JACKSONVILLE SHERIFF'S OFFICE, Appellant, v. CASE NO. 1D06-5233 TODD COWEN, Appellee. _________________________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Opinion filed December 17, 2007. An appeal from the Circuit Court for Duval County. Karen K. Cole, Judge Richard A. Mullaney, General Counsel, Ernst D. Mueller, Deputy General Counsel, and Carol Mirando, Assistant General Counsel, Jacksonville, for Appellant. T. A. Delegal, III, of Delegal Law Offices, P.A., Jacksonville, for Appellee.

KAHN, J. This case turns upon whether appellee, Todd Cowen, now dismissed as a police officer with appellant Jacksonville Sheriff's Office (JSO), has a right to arbitrate his disciplinary dismissal. Ruling upon Cowen's petition to the circuit court seeking an order compelling the JSO to enter arbitration, the trial judge determined to reserve the central issue of waiver to the arbitration panel, and directed that the parties proceed to

arbitration. The trial court should have ruled on the JSO's contention that Cowen had waived his right to arbitrate; nevertheless, the order on review must be affirmed because, as a matter of law, no waiver occurred. Accordingly, the parties must participate in arbitration as ordered by the trial court in the decretal portion of the order on appeal. BACKGROUND Appellee, Todd Cowen, was a unionized police officer with the JSO. In January 2004, the JSO arrested Cowen and charged him with the felony offense of official misconduct by a public servant and the misdemeanor offense of compounding a felony. Almost immediately, the undersheriff directed to Cowen a "Notice of Immediate Suspension Without Pay/Termination to Follow." This document apprised Cowen of his immediate suspension in light of the charges against him and informed him of his rights to appeal the disciplinary action to the Civil Service Board. The notice did not, however, terminate Cowen's employment with JSO, and the body of the text did not forebode any particular disciplinary action aside from suspension. Cowen, through counsel, informed the Civil Service Board that he elected to appeal his suspension to that Board. Shortly afterward, however, Cowen notified the Board that he would waive his right to a speedy hearing and requested the Board to postpone the case due to the pendency of the criminal charges. The rules governing the Jacksonville Civil Service Board required one suspended without pay to notify the Board 2

within ten days if criminal charges were dismissed. See City of Jacksonville Civ. Serv. & Pers. R. 9.05(4), (6)(b). Presumably, Cowen proceeded to prepare his defense against the pending criminal charges. By letter of June 14, 2004, some five months after the suspension, the JSO notified Cowen that, although it was continuing to investigate serious allegations, the sheriff had decided to cancel the suspension without pay. In lieu of that suspension, the JSO assigned Cowen to desk duty, conditioned upon his not working in uniform or exercising any police powers. Cowen immediately resumed employment with the JSO. In October 2005, the State dismissed the criminal charges against Cowen. The JSO nevertheless continued its inquiry into certain allegations. As a result of that investigation, JSO's internal affairs unit issued an undated report summarizing its own investigation into Cowen's alleged misconduct. The report, which noted suspicion that Cowen untruthfully responded to some questions put to him by investigators, recommended that three charges for professional misconduct should be sustained. These charges differed slightly from the charges contained in the January 2004 suspension notice. The events that followed the JSO internal investigation report have become critical to the outcome of this case. On April 5, 2006, the undersheriff approved the disciplinary charges reflected in the internal affairs investigation and, on April 21, sent Cowen a 3

letter informing him of the agency's decision to convene a disciplinary review board that would conduct a hearing and issue recommendations regarding Cowen's continued employment. The undersheriff, however, withdrew that letter shortly thereafter by way of a second document telling Cowen he could not be disciplined twice for the same conduct and suggesting that the agency would proceed with the disciplinary process that began with Cowen's suspension in January 2004. The JSO then requested that the Civil Service Board dismiss Cowen's appeal of the January 2004 suspension on the ground that Cowen failed, under Civil Service Rules, to timely notify the Board of the dismissal of criminal charges. Within days, Cowen's legal counsel wrote the Civil Service Board asking to "withdraw the previously submitted request for hearing . . . on behalf of Officer Todd Cowen." The letter went on to note that Cowen had returned to JSO payroll in June 2004 and understood that the JSO "apparently withdrew its intention to terminate Officer Cowen's employment, at least until an investigation could be conducted." The letter observed that the JSO, through the City Attorney, had recently moved the Civil Service Board to dismiss the request for hearing submitted by Cowen in January 2004. Counsel explained that, because Officer Cowen was returned to payroll, and the criminal case ultimately dropped, Cowen "could not have notified the Civil Service Board at such time and requested a hearing since no disciplinary charges were pending against him at the time." 4

The letter concluded with counsel's advice that Cowen would either appeal the present disciplinary action

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