Terry R. Henley (“Henley”) appeals from an order granting the City of North Miamis (“City”) motion to dismiss his third amended complaint with prejudice for failure to state a cause of action under Floridas Whistle-Blowers Act, section 112.3187, Florida Statutes (“Whistle-blowers Act” or “Act”). As the trial court properly concluded that Henleys alleged disclosures did not constitute protected disclosures under the Whistle-blowers Act, we affirm.
I. Facts and Procedural History
Henley filed a lawsuit against the City pursuant to the Whistle-blowers Act. In his third amended complaint (“operative complaint”), Henley alleged that in September 2018, the City terminated his employment as Acting Budget Director in retaliation for emails and a text message he sent to City Manager Larry Spring and Deputy City Manager Arthur Sorey III, relating to the Citys budget and financial projections. Henley did not attach the alleged e-mails and text message to the operative complaint, but summarized them in Paragraph 7 of the operative complaint.
The City moved to dismiss the operative complaint with prejudice. Following a hearing, the trial court entered an order granting the Citys motion. Henleys appeal followed.
II. Standard of Review
A trial courts determination as to whether a complaint states a cause of action is reviewed de novo. See Peoples Tr. Ins. Co. v. Alonzo-Pombo, 307 So. 3d 840, 842 (Fla. 3d DCA 2020); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003) (“Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review.”).
III. Analysis
“The legislative intent of the Whistle-blowers Act is to prevent retaliatory action against employees who disclose misconduct on the part of public officials.” State, Dept of Transp. v. Fla. Commn on Human Rels., 842 So. 2d 253, 256 (Fla. 1st DCA 2003); see also Shaw v. Town of Lake Clarke Shores, 174 So. 3d 444, 445 (Fla. 4th DCA 2015) (citing § 112.3187(2), Fla. Stat. (2011))
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. The Whistle-blowers Act “is a remedial statute designed to encourage the elimination of public corruption by protecting public employees who ‘blow the whistle.’ ” Martin Cnty. v. Edenfield, 609 So. 2d 27, 29 (Fla. 1992). As the Act is a remedial statute, it should be liberally construed “in favor of granting access to the remedy.” Id.; see also Irven v. Dept of Health & Rehab. Servs., 790 So. 2d 403, 405 (Fla. 2001) (“[T]he Act is remedial and should be given a liberal construction.”).
“To overcome a motion to dismiss for failure to state a cause of action with a retaliation claim under the Act, the complaint must include sufficient facts to allege: (1) the plaintiff engaged in a protected activity (i.e. a protected disclosure); (2) the plaintiff suffered an adverse employment action; and (3) the two events are not wholly unrelated.” Shaw, 174 So. 3d at 445-46 (quoting Fla. Dept of Child. & Fams. v. Shapiro, 68 So. 3d 298, 305-06 (Fla. 4th DCA 2011)). In addition, section 112.3187(5) provides:
(5) NATURE OF INFORMATION DISCLOSED.—The information disclosed under this section must include:
(a) Any violation or suspected violation of any federal, state, or local law, rule, or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the publics health, safety, or welfare.
(b) Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.
As Henleys alleged disclosures involved a “local governmental entity,” “the information must be disclosed to a chief executive officer as defined in s. 447.203(9) or other appropriate local official.” § 112.3187(6). As relevant here, the protected disclosure requires an employees “written and signed complaint.” § 112.3187(7); see also Walker v. Fla. Dept of Veterans Affs., 925 So. 2d 1149, 1150 (Fla. 4th DCA 2006) (“The purpose of the statutory requirement of a signed writing ‘is to document what the employee disclosed, and to whom the employee disclosed it, thus avoiding problems of proof for purposes of the Whistle-blower Act.’ ”) (quoting Hutchison v. Prudential Ins. Co. of Am., Inc., 645 So. 2d 1047, 1050 (Fla. 3d DCA 1994)).
In arguing that his alleged disclosures are protected under the Whistle-blowers Act, Henley relies primarily on this Courts decision in Igwe v. City of Miami, 208 So. 3d 150 (Fla. 3d DCA 2016). Igwe filed a retaliatory discharge claim against the City of Miami under the Whistle-blowers Act, alleging he was terminated as a result of protected disclosures. Igwe was the Independent Auditor General (“IAG”) for the City of Miami. As the IAG, Igwe had the duty to report his financial analysis to the City of Miami Commission. Id. As summarized in Igwe,
Igwe disclosed to the City Commission and the Citys Mayor several instances of alleged misconduct between 2009 and 2011, including the following: (1) a report finding that the City had violated its financial integrity principles by engaging in improper interfund borrowing; (2) a report identifying the improper transfer of restricted Local Option Fuel Tax revenues into the Citys general fund; (3) a report identifying another improper transfer of restricted stormwater utility revenues into the Citys general fund; and (4) a report that the City was continuing to improperly transfer restricted revenues into the Citys general fund, even after the issuance of the prior reports. Igwe also issued a report to the City Commission and the Citys Audit Advisory Committee, disclosing that the City Attorney had overpaid herself.
Igwe, 208 So. 3d at 151-52. In addition, Igwe was subpoenaed by the United States Securities and Exchange Commission (“SEC”) during an investigation being conducted by the SEC and the Federal Bureau of Investigation (“FBI”), relating to the City of Miamis potential securities law violations. The disclosures Igwe made were in accordance with his job duties as the City of Miamis IAG. Id. at 152.
The City of Miami moved for summary judgment, arguing that the Whistle-blowers Act only applies to those who make voluntary disclosures, and because Igwes disclosures were made as part of his job duties as IAG, he was not protected by the Whistle-blowers Act. Id. The trial court agreed with the City of Miamis position, finding that Igwes disclosures were not protected under the Whistle-blowers Act, and entered final summary judgment in favor of the City. In doing so, the trial court found that Igwes disclosures were not voluntary because his disclosures consisted of “things that the job obligated him to report,” and his cooperation with the SEC and FBI were also part of his duties as IAG. Id.
This Court reversed the order entering final summary judgment in favor of the City of Miami, concluding Igwe was a protected person under the Whistle-blowers Act. This Court recognized that under section 112.3187(7), there are five independent categories of protected persons, and that Igwe is a protected person under two of the categories. First, his disclosures to the City of Miami Commission fell under the category of “employees who file any written complaint to their supervisory officials,” and second, his disclosures to the SEC fell under the category of persons ‘who are requested to participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity.” Id. at 155 (quoting § 112.3187(7)). This Court concluded that “section 112.3187(7) protects those who make disclosures regarding ‘improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the party of any agency, public officer, or employee,’ even if they do so in the course of carrying out their job duties.” Id. at 156.
The issue addressed in Igwe is not at issue in the instant case. The City has not argued that that Henley does not fall under one of the categories of “employees and persons protected” under the Whistle-blowers Act. The City does not argue that because the alleged e-mails concern matters within Henleys job description as the Citys Acting Budget Director, he is not protected under the Whistle-blowers Act. Rather, the issue is whether Henleys alleged disclosures themselves—the emails and the text message—constitute protected disclosures under the Whistle-blowers Act. As stated above, Henley did not attach the e-mails to the operative complaint. Instead, Henley summarized the alleged e-mails and text message in paragraph 7 of the operative complaint.
Paragraph 7 reflects that Henley allegedly sent e-mails and a text message to the City Manager and/or the Deputy City Manager relating to deficits in the proposed budget, with Henley recommending certain cuts in the proposed budget to avoid the deficit. For example, Henley described these communications as “projections of deficit” and “Plan to Balance.” The alleged e-mails and the text message, as described by Henley, do not identify any violation of law or any act of suspected gross mismanagement, misfeasance, etc. Thus, Henleys written disclosures do not constitute protected activity under the Whistle-blowers Act. See § 112.3187(5)(a)-(b); see also Pickford v. Taylor Cnty. Sch. Dist., 298 So. 3d 707 (Fla. 1st DCA 2020) (holding that a former substitute teachers letter to an elementary school principal disputing his pay rate was not a protected disclosure under the Whistle-blowers Act where the letter failed to identify any violation of law, rule, or policy that would present a substantial and specific danger to the publics health, safety, or welfare, nor did it identify any act of misfeasance, malfeasance, or other gross conduct that would have triggered the Acts protections); Castro v. Sch. Bd. of Manatee Cnty., Fla., 903 F. Supp. 2d 1290 (M.D. Fla. 2012) (holding that complaints by employee about school boards implementation of state educational policies regarding student evaluations did not constitute protected activity under the Whistle-blowers Act because the complaints did not involve complaints about school boards violations of the law, and did not indicate that there was any risk to public health, safety, or welfare, and the complaints occurred after supervisor had already decided to terminate employee).
As stated above, under section 112.3187(7), the protected disclosure(s) must be in the form of a signed writing. See Walker, 925 So. 2d at 1150 (“The purpose of the statutory requirement of a signed writing ‘is to document what the employee disclosed, and to whom the employee disclosed it, thus avoiding problems of proof for purposes of the Whistle-blower Act.’ ”) (quoting Hutchison v. Prudential Ins. Co. of Am., Inc., 645 So. 2d 1047, 1050 (Fla. 3d DCA 1994)). Rather than summarizing only the written disclosures, Henley also included in Paragraph 7 alleged non-written disclosures, which can be described as instructions, reactions, admonishments, arguments, and discussions. These alleged non-written disclosures cannot be considered when determining whether Henley engaged in protected activity.
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See Walker, 925 So. 2d at 1150.
IV. Conclusion
Accordingly, based on the above analysis we affirm the order dismissing the operative complaint with prejudice.
Affirmed.
FOOTNOTES
1
. Section 112.3187(2) currently provides in relevant part as follows:LEGISLATIVE INTENT.—It is the intent of the Legislature to prevent agencies ․ from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer ․ that create a substantial and specific danger to the publics health, safety, or welfare. It is further the intent of the Legislature to prevent agencies ․ from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee.
2
. Henleys operative complaint also refers to an outside auditors report issued following Henleys termination. The auditors report cannot be considered because the report is not a disclosure made by Henley and because the report was issued following Henleys termination.
HENDON, J.