Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D21-1357 _____________________________ FLORIDA OFFICE OF FINANCIAL REGULATION, the FINANCIAL SERVICES COMMISSION, and the FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellants, v. KIMBERLY GRIPPA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge. November 24, 2021 PER CURIAM. This is an appeal from an order denying a motion to dismiss asserting entitlement to sovereign immunity. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii). For the reasons that follow, we affirm in part and reverse in part. Appellee, Kimberly Grippa, filed a lawsuit against Appellants—the Office of Financial Regulation (OFR), the Financial Services Commission (FSC), and the Department of Financial Services (DFS)—alleging claims for gender discrimination (count I), common law negligence (count II), common law negligent hiring (count III), common law negligent retention (count IV), and common law negligent supervision (count V). Specifically, counts III, IV, and V of Appellee’s amended complaint alleged that Appellants negligently hired, retained, and supervised Ronald Rubin as the Commissioner of Financial Regulation. Appellants filed a motion to dismiss asserting, among other things, that the hiring, retention, and supervision of Rubin as the Commissioner of Financial Regulation was a discretionary executive function entitled to sovereign immunity. Appellee responded by asserting that the motion to dismiss was premature insofar as the defense of sovereign immunity could not be determined as a matter of law from the face of the amended complaint. After a hearing, the trial court entered an order denying Appellants’ motion to dismiss as to counts III, IV, and V. On appeal, Appellants claim that the trial court erred in denying their motion to dismiss Appellee’s claims for negligent hiring, retention, and supervision as barred by sovereign immunity. “A trial court’s ruling on a motion to dismiss a complaint based on whether a claim is barred under the doctrine of sovereign immunity is a question of law; thus, the appropriate standard of review is de novo.” DeSantis v. Geffin, 284 So. 3d 599, 602 (Fla. 1st DCA 2019). In her amended complaint, Appellee alleged negligence as a result of Appellants’ hiring, retention, and supervision of Rubin as the Commissioner of Financial Regulation. The Commissioner of Financial Regulation is the head of the OFR, which is a unit of the FSC and is responsible for all activities of the FSC related to the regulation of banks, credit unions, other financial institutions, finance companies, and the securities industry. § 20.121(3)(a)2., Fla. Stat. (2019). Furthermore, the FSC—which is composed of the Governor, Attorney General, Chief Financial Officer, and Commissioner of Agriculture—is empowered to appoint or remove the Commissioner of Financial Regulation “by a majority vote consisting of at least three affirmative votes, with both the Governor and the Chief Financial Officer on the prevailing side.” § 20.121(3)(d), Fla. Stat. (2019). Based on the above, it is clear that 2 Rubin, in his capacity as the Commissioner of Financial Regulation, was the head of a state agency with important policy- making functions who served at the pleasure of the highest elected officials of the executive branch. As such, the discretionary decision to appoint or remove Rubin is not subject to judicial review. See De Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957) (“[W]here one holds office at the pleasure of the appointing power and the power of appointment is coupled with the power of removal contingent only on the exercise of personal judgment by the appointing authority, then the decision to remove or dismiss is purely executive and not subject to judicial review.”). Because the hiring, retention, and supervision of Rubin involved the exercise of governmental discretion at the highest level, this case is substantively indistinguishable from Storm v. Town of Ponce Inlet, 866 So. 2d 713, 718 (Fla. 5th DCA 2004), which involved a suit brought by a property owner against the Town of Ponce Inlet for negligent supervision and retention of its chief building inspector, whose alleged misrepresentations and maladministration caused injury to the property owner and others. In affirming the trial court’s dismissal of the suit based on sovereign immunity, the Fifth District Court of Appeal explained: The decision of the Town to hire, fire or retain a top executive appointee falls, without question, at the far end of the “discretionary” basic fundamental decision-making spectrum. It is the most upper level legislative or executive kind of decision. As acknowledged by the Kaisner court, the discretionary-operational level test is based on the concept of separation of powers. [Kaisner v. Kolb, 543 So. 2d 732, 737 (Fla. 1989)]. Would intervention by a court in such an instance, inappropriately entangle the courts in fundamental questions of policy and planning? The decision of the governmental executive (Mayor, Town Council, Governor) or the legislative branch, to hire or fire a top head of an agency is necessarily fundamental, and involves the exercise of governmental discretion at the highest level. This is precisely the area into which, under the separation of powers doctrine, courts must not 3 intervene. Only the voters, using the ballot box, are appropriate to second-guess the decisions of a Town Council at this level. As our sister court explained in White v. City of Waldo, 659 So. 2d 707 (Fla. 1st DCA 1995), rev. denied, 667 So. 2d 774 (Fla.1996): Juries should not be permitted to usurp choices that the constitution entrusts to the legislative or executive branches. 659 So. 2d at 711. 866 So. 2d at 719 (footnotes omitted). Like the Town Council’s decision to hire, fire, or retain its chief building official in Storm, the FSC’s decision to hire, fire, or retain Rubin, a top executive appointee, is protected by sovereign immunity. Accordingly, we reverse the trial court’s order denying the motion to dismiss counts III, IV, and V as to Appellant FSC and remand with directions that the trial court dismiss those counts against Appellant FSC with prejudice. However, because it is not apparent from the face of the amended complaint that Appellants OFR and DFS are entitled to sovereign immunity as a matter of law, we affirm the remainder of the trial court’s order on this basis alone. Our affirmance, however, should not be taken as a determination in any way of the merits of the underlying causes of action asserted against the remaining defendants. AFFIRMED in part; REVERSED in part; and REMANDED. MAKAR, JAY, and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 4 Mark G. Alexander, Samantha Giudici Berdecia, and Devin X. Alexander of Alexander Degance Barnett, P.A., Jacksonville, for Appellants. Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox, P.A., Tallahassee; Richard E. Johnson of Law Office of Richard E. Johnson, Tallahassee, for Appellee. 5