Key Points

  • Florida's veterans' preference statute, section 295.09(1)(a), requires a public employer that uses a promotional exam to promote a qualified wartime veteran ahead of everyone in an equal or lesser position on the resulting promotional register.
  • The mandate applies whenever an exam is used, even if the exam only produces a shortlist and a decisionmaker then chooses without regard to rank.
  • The Second District reversed PERC and directed it to order the City of Tampa to promote Officer Robert Lamb, who ranked tied for second in 2021 and first in 2023, to corporal/detective.
  • A footnote leaves open whether employers may fold criteria such as discipline and work performance into eligibility or register rankings.
  • Judge Guard's concurrence says the city switched to an unscored alphabetized list after Lamb's complaint surfaced, and that he would reverse even under the city's reading because the statute requires preference at every stage.

Florida's veterans' preference law requires a public employer to promote a qualified wartime veteran ahead of lower-ranked candidates whenever it uses a promotional exam, a state appeals court ruled Friday, ordering the City of Tampa to promote a police officer who topped its eligibility list but was repeatedly passed over.

The Second District Court of Appeal reversed a final order of the Public Employees Relations Commission (PERC), which had sided with the city. Judge Atkinson wrote for a unanimous three-judge panel that included Judges Sleet and Guard. The court sent the case back with instructions for PERC to order the city to promote Officer Robert Lamb to corporal/detective.

The decision rejects the city's position that it could avoid the statute through what PERC called a "hybrid promotion process," in which a written exam produces a ranked shortlist and the police chief then chooses from it without regard to rank. Under the ruling, the law's promotion mandate applies whenever an exam is used, whether or not the exam decides who is promoted.

Promotions in the Tampa Police Department are governed by a collective bargaining agreement between the city and the Tampa Police Benevolent Association, according to the opinion. Candidates take a 100-question exam, and their passing scores are combined with points for seniority, education and veterans' preference to produce an eligibility list. When a corporal/detective vacancy is to be filled by promotion, the city certifies "50% of the eligibles ranking highest plus two additional names for each additional vacancy."

The police chief testified that the candidates' scores were "not a factor" in deciding which candidate on the certified list was most qualified. Members of the executive staff each wrote their "top five candidates" on index cards, the chief's secretary counted the votes, and the chief made "the final, subjective decision regarding who gets promoted," the opinion said.

Lamb, a wartime veteran, was tied for second on the 2021 list and ranked first on the 2023 list. "Although numerous individuals with lower scores on both the 2021 and 2023 eligibility lists were promoted, Mr. Lamb was not," Judge Atkinson wrote.

Lamb filed a complaint with the Florida Department of Veterans' Affairs and later petitioned PERC for a hearing. Command staff testified there that he had been passed over in part because of an "extensive and egregious" disciplinary history. The hearing officer found that Lamb was not more qualified than those promoted, citing use-of-force violations and an "abrasive" attitude. PERC then rejected Lamb's reading of the statute, concluding there was "no legal basis" for an absolute preference "based on the City's mere utilization of an examination as part of its hybrid promotion process."

The statute, section 295.09(1)(a), provides that when a promotional exam is used, an eligible veteran must receive preference points and "be promoted ahead of all those who appear in an equal or lesser position on the promotional register, provided that he or she first successfully passes the examination for the promotional position." The law does not define "promotional register."

Relying on Black's Law Dictionary, the court concluded that Tampa's eligibility list was "[a]n official list of the names" of candidates eligible for promotion, because only people named on it could be promoted. The statute is triggered, Judge Atkinson wrote, "not when such an examination is dispositive or is determinative, but simply when it is used."

The court held that the city's reading "is not supported by the text." An employer that uses an exam without producing a register that allows a veteran to be promoted ahead of lower-ranked candidates, Judge Atkinson wrote, is not excused: "to the contrary, it results in a violation of the dictates of the statute."

"By promoting candidates ranked lower than Mr. Lamb on the eligibility lists, the City of Tampa violated section 295.09," the court held.

In a footnote, the court left open whether an employer could comply with the statute while still weighing factors such as "work performance, disciplinary history, leadership traits, training, and initiative" in deciding eligibility or in ranking candidates on the register.

Judge Guard joined the majority in full and wrote separately. "This was not a close case or a particularly difficult interpretive issue," the concurrence said. In July 2023, after the police union first raised Lamb's complaint, the city stopped giving command staff a ranked list with scores and switched to an alphabetized list with no scores. "The only reason to do this is if the City knew the statute applied to its process," Judge Guard wrote.

Judge Guard would also reverse under the city's own reading, because the statute's first sentence requires preference at each stage of promotion. Senior officers testified that Lamb's place on the list meant little or nothing at the command-staff stage. "Under no construction of section 295.09 should service to this country be a detriment in government employment decisions," Judge Guard wrote.

Judge Guard described Lamb as an Army master sergeant who has served for more than 20 years, and noted that officers promoted over Lamb had drawn suspensions of 21 days and eight days, compared with Lamb's single-day suspension. As best Judge Guard could tell, Lamb was treated as he was because department leadership "wants to preserve a promotion system akin to a high school popularity contest."

Lawyers for Lamb included Sean M. McFadden of Merkle & Magri, P.A.; the city was represented by Toyin Aina-Hargrett of the City of Tampa and Thomas M. Gonzalez of GrayRobinson, P.A.

The case now returns to PERC, which the appeals court directed to order the City of Tampa to promote Lamb to corporal/detective. The opinion is subject to revision before official publication.