FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES

v.

HERSTEIN

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-4024 _____________________________

DEPARTMENT OF CHILDREN AND

FAMILIES,

Appellant,

v.

RICHARD HERSTEIN,

Appellee. _____________________________

On appeal from the Circuit Court for Leon County. John C. Cooper, Judge.

January², 2025

RAY, J.

Dr. Richard Herstein served as Chief Hospital Administrator and Chief Medical Officer at the Florida Department of Children and Families. After he was discharged from that position, he sued the Department alleging whistleblower retaliation. Relevant to this appeal, the trial court granted his request for temporary reinstatement pending resolution of his complaint and awarded him back pay and attorney’s fees and costs. The Department challenges this award of temporary relief. After careful review of the parties’ arguments, we conclude that the trial court erred in granting temporary reinstatement because the statements made by Herstein during routine meetings

In his petition for reinstatement and in the evidentiary hearing that followed, Herstein explained that his duties at the Department included operational and strategic oversight for the state’s mental health treatment facilities and management of their staff. According to Herstein, his employment was terminated in retaliation for making protected disclosures related to an internal investigation into patient abuse and neglect. As background, in 2020, a patient at one of the mental health facilities suffered severe physical abuse by another patient. This prompted an investigation by the Department’s Adult Protective Services Unit (APS), which is authorized to investigate certain allegations of abuse involving vulnerable adults. Roy Carr, the Director of APS, testified that the investigation was “woefully inadequate.” At Carr’s request, APS conducted a second investigation. This report, submitted in August of 2021, implicated four individuals, two nurses and two risk managers. Based on these findings, the employees were restricted from providing direct patient care. After the employees complained to Herstein, Herstein contacted Carr about their options. Carr agreed to conduct an executive review of the investigation, which he completed in September of 2021. Carr’s findings cleared the four employees of any wrongdoing while identifying two new individuals as responsible. While the APS investigation was ongoing, the Department’s Office of the Inspector General (“IG”) began its own investigation. The IG is under the general supervision of the Department’s Secretary for administrative purposes but reports to the Governor’s Chief Inspector General to maintain independence from the agency. See § 20.055(3)(b), Fla. Stat. During the IG review process, which concluded in March of 2022, the four initially accused employees remained on restricted duty.

* The Department brought this case as an appeal from a final order, relying on State, Department of Transportation v. Florida Commission on Human Relations, 842 So. 2d 253 (Fla. 1st DCA 2003). Although this court found that an order granting temporary reinstatement was a final order in DOT, that case was in a different procedural posture than the one before us. There, the Florida Commission on Human Relations (“FCHR”) sought temporary reinstatement on behalf of an employee pending the outcome of its investigation into the employee’s whistleblower complaint before the FCHR. 842 So. 2d at 254–55. Once the circuit court granted temporary reinstatement, there was nothing more for the court to do in that case. If the employee elected to later bring a civil action after exhausting her administrative remedies, it would be “separate and distinct” from FCHR’s reinstatement case. Id. at 255. Here, the petition for reinstatement seeks statutorily authorized relief as part of the employee’s whistleblower complaint before the circuit court. The civil action remains pending. Unlike in DOT, the circuit court’s work in this case is not done. We thus treat this as an appeal of a non-final order having the effect of injunctive relief.

A

The FWA was enacted “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.” § 112.3187(2), Fla. Stat. As a remedy for a violation of the FWA, an employee may bring a civil action after exhausting administrative remedies. § 112.3187(8)(a), Fla. Stat. Temporary reinstatement is required under the FWA if the employee can show that “1) prior to termination the employee made a disclosure protected by the statute;²) the employee was discharged; and³) the disclosure was not made in bad faith or for a wrongful purpose, and did not occur after an agency’s personnel action against the employee.” State, Dept. of Transp., 842 So. 2d at 255 (citation omitted). Of these requirements, the only one in dispute is whether Herstein made a protected disclosure. Or more to the point, whether he made a disclosure in a manner proscribed by the FWA. Under that prong, the FWA protects employees and persons who disclose information on their own initiative in a written and signed complaint; who are requested to participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity; who refuse to participate in any adverse action prohibited by this section; or who initiate a complaint through the whistle-blower’s hotline or the hotline of the Medicaid Fraud Control Unit of the Department of Legal Affairs; or employees who file any written complaint to their supervisory officials or employees who submit a complaint to the Chief Inspector General in the Executive Office of the Governor, to the employee designated as agency inspector general under

The issue here is the proper interpretation of the term “other inquiry.” As emphasized above, the FWA “protects employees . . . who are requested to participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity.” § 112.3187(7), Fla. Stat. (emphasis added). The trial court did not find that Herstein was asked during the September 30 and December⁷ meetings to participate in an investigation or hearing into the patient’s abuse. To the contrary, Herstein testified that he was told during both meetings to stay out of the investigation. By finding that these meetings constituted an “other inquiry,” the trial court broadly interpreted “inquiry” to mean “the process of asking a question.” But in context, the Department argues that “inquiry” must mean something more than asking a question during a routine workplace meeting. We agree. In determining the meaning of a statutory provision undefined by the Legislature, courts “presume that the term bears its ordinary meaning at the time of enactment, taking into consideration the context in which the word appears.” Conage v. United States, 346 So. 3d 594, 599 (Fla. 2022). Thus, we first determine the ordinary meaning of “inquiry.” Dictionaries from the time a law was enacted are a good place to start. See City of Tallahassee v. Fla. Police Benevolent Ass’n, Inc., 375 So. 3d 178, 184 (Fla. 2023) (recognizing that dictionaries are often the best evidence of ordinary and commonly accepted meanings of words at the time they were written). One dictionary defines “inquiry” to mean: “1. The act of inquiring. 2. A question; query. 3. A close examination of some matter in a quest for information or truth.” Inquiry, The American Heritage Dictionary of the English Language (2d ed. 1982). Another dictionary defines “inquiry” informally to mean “a request for information,” or formally to mean “a systematic investigation often of a matter of public interest.” Inquiry, Webster’s New Collegiate Dictionary (1980 ed.).

Because the grant of temporary reinstatement was improper, so too was the award of lost wages and attorney’s fees and costs associated with the temporary reinstatement. Even if Herstein were entitled to temporary reinstatement, there is no basis in the

The trial court granted three forms of relief in this interlocutory proceeding: temporary reinstatement, lost wages, and attorney’s fees and costs. But subsection (9)(f) above—which authorizes a limited form of relief on a petition for temporary reinstatement—provides only for “temporary reinstatement to the employee’s former position or to an equivalent position, pending the final outcome on the complaint.” (Emphasis added.) It does not independently authorize the award of compensation or reasonable costs as part and parcel of that temporary relief. Those forms of relief are instead tied to the merits of the underlying whistleblower action. To be clear, a petition for temporary reinstatement is not an “action” under the FWA. As the name implies, temporary reinstatement is temporary relief “pending the final outcome on the complaint.” § 112.3187(9)(f), Fla. Stat. Put simply, temporary reinstatement depends on an underlying cause of action, and is not itself, the action that triggers the mandatory relief afforded by statute. Herstein acknowledges that the purpose of temporary reinstatement is to preserve the status quo during the pendency of the lawsuit. Even so, he argues it would make little sense to offer temporary reinstatement without making the plaintiff “whole” by awarding lost wages and associated attorney’s fees and costs. In actions brought under the FWA, a court must award “[c]ompensation, if appropriate, for lost wages, benefits, or other lost renumeration caused by the adverse action.” § 112.3187(9)(c), Fla. Stat. Lost wages, or back pay, are a form of compensatory damages. See O’Neal v. Fla. A & M Univ. ex rel. Bd. of Trs. for Fla. A & M Univ., 989 So. 2d 6, 10 (Fla. 1st DCA 2008). The purpose of compensatory damages is to compensate a plaintiff for loss or injury sustained due to a wrongful act by the defendant. See MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995 So. 2d 221, 224 (Fla. 2008) (“The fundamental principle of the law of damages is that the person injured by breach of contract or by wrongful or

III

In summary, we conclude that Herstein did not make a protected disclosure that would entitle him to temporary reinstatement under the FWA, and there is no basis for the award of back pay and reasonable costs at this stage of litigation. None of this, of course, is to suggest the outcome of his whistleblower action. As discovery proceeds and more is learned, the merits of the case may come out a different way. Our decision here concerns a preliminary question and is based on a limited record. For these reasons, the order under review is VACATED. ROWE and NORDBY, JJ., concur.

13

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andrew McGinley, General Counsel, Department of Children and Families, Tallahassee; Dawn M. McMahon and Miriam R. Coles of Henry Buchanan, P.A., Tallahassee, for Appellant.

Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox, P.A., Tallahassee, for Appellee.