CIVIL DIVISION CASE NO.

Transcription

1 Electronically Filed 08/20/ :39:44 AM ET IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO. CARLOS LOPEZ-CANTERA, as Property Appraiser for Miami-Dade County, Florida, v. Plaintiff, BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, and CARLOS A. GIMENEZ, in his official capacity as Mayor of Miami-Dade County, Florida, Defendants. / COMPLAINT FOR DECLARATORY RELIEF Plaintiff Carlos Lopez-Cantera, as Property Appraiser for Miami-Dade County, Florida ( Property Appraiser ), sues Defendants the Board of County Commissioners of Miami-Dade County, Florida ( County Commission ) and Carlos A. Gimenez, in his official capacity as Mayor of Miami-Dade County, Florida, and states as follows: INTRODUCTION 1. In 2008, the citizens of Miami-Dade County voted overwhelmingly to make the County s Property Appraiser an independent, elected officer, rather than a department head appointed by, and serving at the pleasure of, the Mayor. 2. The ballot measure approved by 76 percent of the electorate undid a 1957 Miami- Dade County Charter provision that had transferred the duties of the Property Appraiser from an

2 independent officer to an appointee of the County Manager. In enacting this reform, the voters restored the position of Property Appraiser to the status it has in 64 of Florida s other counties namely, that of an elected, independent, constitutional county officer as envisioned by Article VIII, Section 1 of the Florida Constitution. 3. The reason for this reform was straightforward: the voters wanted the County s properties valued and exemptions determined by an independent officer who could make appraisal decisions based on sound valuation principles and fundamental fairness without the fear of reprisal from political leaders who considered his valuations too high, too low, or otherwise unfavorable to their own desires. Simply put, the voters like their counterparts in virtually every other county in the state wanted a Property Appraiser who would derive authority not from the whims of politicians or administrators, but directly from the people of Miami-Dade County. 4. The County has, however, failed and refused to grant the office of Property Appraiser the independence it deserves under the Florida Constitution and the 2008 amendment. Specifically, the County has continued to assert control and veto power over key management aspects of the Property Appraiser s office and has insisted that it has the right to define and cabin by ordinance the duties, resources, and personnel decisions of the Property Appraiser. Indeed, the County has repeatedly taken the position that it can exert such control because the Property Appraiser is not a constitutional officer but is, rather, nothing more than an elected department head. 5. This assertion by the County is entirely inconsistent with the Constitution and the 2008 amendment and thwarts the will of the voters, but it has left the Property Appraiser with significant questions and concerns about how independent his office can really be if its budget 2

3 and employees are ultimately subject to the control and influence of the County Commission and the Mayor. 6. As a result of the County s restrictive interpretation of the role and powers of his office, the Property Appraiser faces constraints on his ability to enact policy and management reforms that will serve the interests of the citizens of Miami-Dade County by improving office efficiency and responsiveness, allowing the issuance of prompt and fair appraisal and exemption determinations, and giving the people the truly independent decisionmaker they voted for in the 2008 referendum. 7. This declaratory judgment action seeks to eliminate such concern and allow the County, the Property Appraiser, and the citizens of Miami-Dade to move forward without the uncertainty that now exists. PARTIES, JURISDICTION, AND VENUE 8. This is an action for declaratory judgment to establish that the elected Property Appraiser of Miami-Dade County is an independent officer under the Constitution of the State of Florida, authorized to exercise his official duties free from interference and pressure exerted by other County officials. 9. This Court has jurisdiction over the action pursuant to Section of the Florida Statutes. 10. Venue is proper in Miami-Dade County, Florida. Plaintiff is an elected official who conducts business in and for Miami-Dade County, Florida, and Defendants are the governing entities of Miami-Dade County. 11. Plaintiff is the Property Appraiser of Miami-Dade County. Elected by the residents of the County, he is responsible for determining the value of all property within the 3

4 county for tax purposes, maintaining certain records connected therewith, granting appropriate tax exemptions, and satisfying all statutory requirements related to these duties. The Property Appraiser has over 300 employees, the majority of whom are involved in making determinations about critical issues of property valuation and exemption. 12. Defendant County Commission is the governing legislative body of Miami-Dade County. The Board s powers, and the limits on those powers, derive from the Constitution of the State of Florida and the Miami-Dade County Charter. 13. Defendant Gimenez is the chief administrative and executive officer of Miami- Dade County. Like the County Commission, the Mayor derives his powers, and the limits thereto, from the Constitution of the State of Florida and the Miami-Dade County Charter. Defendant Gimenez is a Defendant in his official capacity. 14. Where appropriate, Defendants are referred to herein together with their subordinate agents, departments, and employees as the County. FACTS 15. In order to understand the controversy and questions that give rise to this action, it is necessary to place in context the recent changes to the Property Appraiser s power and status. 16. The Florida Constitution of 1885 enumerated certain constitutional offices for each of Florida s counties, including, among others, sheriffs, school superintendents, and assessors of tax. See Fla. Const. of 1885, Art. VIII, 6. Until 1957, Dade County elected an assessor of tax who, like his counterparts throughout the State, fulfilled the duties now performed by the Property Appraiser. Under the 1885 Constitution, tax assessors were elected for periods of two years. 4

5 17. In 1956, the Dade County Home Rule Amendment to the Florida Constitution granted Dade County the ability to abolish through its Home Rule Charter any of the constitutional offices set forth in Article VIII, Section 6 (except for school superintendent), provided that if any such office were abolished, the Charter had to provide for the functions of the abolished office to be transferred to another office. 18. In its initial Home Rule Charter of 1957, Dade County abolished a number of the constitutional offices, including the County Assessor of Taxes. Specifically, the Charter stated: On May 1, 1958, the following offices are hereby abolished, and the powers of such offices are hereby transferred to the County Manager who shall provide for the continuation of all duties and functions of these offices required under the Constitution and general laws of this state: County Assessor of Taxes, County Tax Collector, County Surveyor, County Purchasing Agent, and County Supervisor of Registration. Home Rule Charter of 1957, 8.01(A). Section 8.01(A) was subsequently renumbered to be Section 9.01(A). 19. In 1968, Article VIII of the Florida Constitution was again amended, this time specifically listing property appraiser as one of the enumerated constitutional officers instead of county assessor of taxes, and establishing that property appraisers and other officers were to be elected for four-year terms. The amendment further stated that when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office. Fla. Const., Art. VIII, 1(d). 20. In light of Dade County s specific Home Rule Charter provision abolishing the office of the tax assessor/property appraiser, the 1968 amendment did not affect the status of the Property Appraiser at the time. Indeed, for the next 40 years, the Property Appraiser remained 5

6 an appointee of the County s administrative/executive branch. (In 2007, duties of the County Manager were transferred by Charter amendment to the new strong Mayor.) 21. On January 29, 2008, however, the citizens of Miami-Dade County voted overwhelmingly to remove the Property Appraiser from the administrative/executive branch and make it an independent, elected office as it was in 64 other counties. Specifically, 76.8 percent of the voters approved a ballot question asking: Shall the Charter be amended to provide for the transfer of the duties of the County Property Appraiser from a person appointed and supervised by the Mayor to a person elected and subject to recall by the voters? 22. The groundswell of support for this Charter amendment unmistakably demonstrated that the voters wanted the County s properties valued and exemptions determined by an independent officer. 23. As a result of the Charter amendment, the phrase County Assessor of Taxes, the earlier term for Property Appraiser, was stricken from Section 9.01(A) as follows: On May 1, 1958, the following offices are hereby abolished, and the powers of such offices are hereby transferred to the Mayor, who shall assume all the duties and functions of these offices required under the Constitution and general laws of this state: County Assessor of Taxes, County Tax Collector, County Surveyor, County Purchasing Agent, and County Supervisor of Registration. Home Rule Charter, 9.01(A). 24. With the amendment, the office of Property Appraiser was explicitly excluded from the Charter provision that transferred certain positions from constitutional offices to department heads under the supervision of the Mayor. Thus, because the Charter no longer provided for the abolition of the office and the transfer of its duties to a county department under the Mayor, the Property Appraiser was restored to the position called for by the Constitution that of an independent officer. 6

7 25. Pursuant to the 2008 Charter amendment and Article I, Section 8 of the Florida Constitution, the Miami-Dade County Property Appraiser was put on the same footing as his counterparts in the 64 other counties of Florida that have elected, independent constitutional officers as Property Appraiser. The only two counties without independent Property Appraisers, Volusia and Brevard, have charter provisions explicitly terminating the constitutional nature of the office or describing the Property Appraiser as a department head. As a result of the 2008 amendment, Miami-Dade County has no such charter language since the Constitutional default the Property Appraiser as an elected, independent, constitutional officer has been restored. 26. Despite the plain language of Article VIII, Section 1 of the Constitution, the 2008 Charter amendment, and the clearly expressed will of Miami-Dade County s voters, the County has refused to recognize that the Property Appraiser is an independent constitutional officer. 27. In 2008, shortly after passage of the Charter amendment, the County Commission passed an ordinance purporting to define the duties and powers of the Property Appraiser. See Code of Ordinances of Miami-Dade County ( Miami-Dade Code ), 2-70, et seq. The very existence of the ordinance indicates that the Commission views itself, and not the Florida Constitution, as the source of the Property Appraiser s authority. Were this to be the case, the Property Appraiser would never be independent in the exercise of the office s powers, rights, or duties, as any authority granted by ordinance including but not limited to the Property Appraiser s ability to manage his employees and the affairs of his office can just as easily be taken away by ordinance. 28. Aside from the concerns raised by the existence of the ordinance as a general matter, the ordinance contains a number of provisions purporting to grant the Commission and 7

8 Mayor ultimate control over the Property Appraiser s budget, personnel, resources, and administration. By way of example only, the County Commission decreed via ordinance that: (a) the Commission has power over the Property Appraiser s budget, see Code of Ordinances of Miami-Dade County ( Miami-Dade Code ), 2-70(3); (b) the Commission can veto agreements between the Property Appraiser and third parties, see Miami-Dade Code, 2-70(5); (c) the Property Appraiser shall be subjected to the Commission s ordinances to the same extent as other department directors of Miami-Dade County, Miami-Dade Code, 2-71; (d) the Property Appraiser s employment decisions including decisions to hire, evaluate, promote, demote, discipline, and discharge employees are subject to the same limitations and review processes imposed on the decisions of nonconstitutional department heads appointed by the administration, see Miami-Dade Code, 2-73(1); (e) the salaries, compensation, and benefits of employees in the Property Appraiser s office are fixed by the County Commission, not by the Property Appraiser, see Miami-Dade Code, 2-73(2); (f) the Property Appraiser must utilize general County services and facilities, including those for purchasing, computer systems, general administration, and personnel, see Miami-Dade Code, 2-73(3); and (g) legal services for the Property Appraiser must be provided by the Office of the County Attorney, who is himself an appointee of the Commission, see id. 8

9 29. When the Property Appraiser has raised questions and concerns to County officials about the County Commission and Mayor s ability to control his office by ordinance, he has been told on multiple occasions that the County views him not as an independent constitutional officer, but simply as an elected department head. 30. The position taken by the County casts a serious doubt over the Property Appraiser s ability to be truly independent and free from political influence. 31. For example, if the County Commission has the ability to reduce the Property Appraiser s contracting authority or budget, it could do so in retaliation for valuation or exemption determinations that its members do not like. Moreover, if employees of the Property Appraiser know that their salaries are subject to approval by the County Commission and Mayor, they could be far more susceptible to influence from political forces, thus clouding their ability to make the fairest and most appropriate valuation and exemption decisions. 32. At the same time, if a County Commission can ultimately take away the Property Appraiser s ability to promote valuable workers, remove ineffective employees, and restructure the office to improve performance, or his power to negotiate collectively with his employees, then his ability to manage the Office efficiently and independently could be severely restricted. Indeed, the Property Appraiser faces immediate questions about his right to enter certain contracts and to carry out specific decisions involving the promotion, termination, and compensation of certain employees. 33. Simply put, if the County Commission and Mayor are allowed to control the Property Appraiser through ordinance and thus to limit the authority of the Property Appraiser, the citizens of Miami-Dade County may not in fact have the independent Property Appraiser they voted for so overwhelmingly in

10 34. The Property Appraiser and the citizens of Miami-Dade County are entitled to know with certainty just how independent the office of Property Appraiser is. CLAIM FOR DECLARATORY JUDGMENT 35. Plaintiff realleges the allegations in paragraphs 1 through 34 of this Complaint as if fully set forth herein. 36. Because the County has taken the position that, contrary to Article VIII, Section 1 of the Florida Constitution, the Property Appraiser is not a constitutional officer, a genuine, present, and actual controversy exists regarding the independence of the Property Appraiser and his ability to perform his duties free from political pressure from other County officials. 37. Until this controversy is resolved, the rights, powers, and duties of the Property Appraiser will remain in doubt, and the Property Appraiser will be in doubt as to his ability to carry out the functions of his office, including but not limited to decisions regarding employee hiring, termination, placement, and salaries. 38. The antagonistic and adverse interests of the parties can be brought before this Court by proper process. 39. In order to resolve this matter and carry out his duties in accordance with the will of the voters of Miami-Dade County, the Property Appraiser is entitled to have any doubts removed regarding the nature and independence of his office. WHEREFORE, Plaintiff respectfully requests that this Court: a. take jurisdiction of this matter and over the parties; b. enter judgment declaring that the Property Appraiser is an independent, constitutional officer, as envisioned by Article VIII, Section 1 of the 10

11 Dated this 20 th day of August, Florida Constitution, free of control by the Board of County Commissioners or the Mayor; c. declare unconstitutional those Miami-Dade County ordinances that improperly limit the independence of the Property Appraiser; and d. grant all other relief the Court deems just and proper. Respectfully Submitted, GELBER SCHACHTER & GREENBERG, P.A Brickell Avenue Suite 1420 Miami, Florida Direct: (305) Main: (305) Fax: (305) By: /s/gerald E. Greenberg Gerald Greenberg Florida Bar No Dan Gelber Florida Bar No