City of Miami v. Hagan , 235 So. 3d 977 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed November 13, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2177
Lower Tribunal Nos. 15-164 & 13-35D
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City of Miami,
Petitioner,
vs.
Larry Hagan,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Gisela Cardonne Ely, George A. Sarduy, and Eric Hendon, Judges.
Victoria Méndez, City Attorney, and Forrest L. Andrews, Assistant City
Attorney, for petitioner.
Buschel Gibbons, P.A. and Robert C. Buschel and Eugene G. Gibbons (Ft.
Lauderdale), for respondent.
Before SUAREZ, LAGOA, and SCALES, JJ.
SUAREZ, J.
The City of Miami (the “City”) petitions for second-tier certiorari from a
decision from the appellate division of the circuit court that overturned the City
Manager’s termination of former police officer Larry Hagan (“Hagan”). While the
proper venue for appeal of the City Manager’s action was the appellate division of
the circuit court, we conclude that the appellate division departed from the
essential requirements of law in reversing Hagan’s termination. As grounds to
reverse, the appellate division held that the Civil Service Board lacked jurisdiction
to hear Hagan’s case as it was required to and failed to hold his hearing within
thirty days of Hagan filing his grievance;1 and that the City Manager was required
to hold a separate hearing before terminating Hagan and failed to do so. We
reverse each of the holdings in the opinion as each departs from the essential
requirements of the law. We therefore grant the City’s petition and quash the
opinion of the appellate division and remand for reinstatement of the City
Manager’s judgment.
1 See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010),
stating: “This Court has continually applied certain fundamental principles for the
use of certiorari to review decisions rendered by the circuit court acting in its
appellate capacity from the time common-law certiorari jurisdiction was first
recognized in 1855. We have consistently observed that ‘[a]s a case travels up the
judicial ladder, review should consistently become narrower, not broader.”
Therefore, when a district court considers a petition for second-tier certiorari
review, the ‘inquiry is limited to whether the circuit court afforded procedural due
process and whether the circuit court applied the correct law,’ or, as otherwise
stated, departed from the essential requirements of law. The departure from the
essential requirements of the law necessary for granting a writ of certiorari is
something more than a simple legal error. Rather, a district court should exercise
its discretion to grant review only when the lower tribunal has violated a clearly
established principle of law resulting in a miscarriage of justice.” (internal
citations omitted).
2
Factual Background
While the parties disagree about the details of the preliminary events, for
purposes of this appeal it is sufficient to state that in 2013 Hagan’s on-duty
sergeant recommended that he be reprimanded for behavior which is irrelevant to
this appeal. Despite the sergeant’s recommendation, Hagan’s commander
determined that he should be suspended for 120 hours based on a “pattern of
behavior.” Hagan requested a grievance hearing by the Civil Service Board,
pursuant to the remedies afforded him under the City of Miami Code of
Ordinances. The hearing took place and the Civil Service Board found Hagan
guilty of numerous violations and recommended the 120 hour suspension. Those
findings and recommendation were forwarded to the City Manager, also pursuant
to the procedures set forth in the Code of Ordinances. The City Manager affirmed
the Civil Service Board’s factual findings, but rejected its suspension
recommendation and instead terminated Hagan. Hagan was credited back the time
already served on the 120 hour suspension after his termination.
Hagan then filed a Petition for Certiorari with the appellate division of the
circuit court alleging that he was not afforded due process because he was not
notified he could be terminated; that the essential requirements of the law were not
observed because he was punished twice for the same conduct; and that the Civil
Service Board’s findings of fact were not supported by competent substantial
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evidence. After oral argument, the appellate division of the circuit court requested
additional documents from the parties, but did not inform the parties why it
requested those documents and did not request any additional briefing from the
parties. Subsequently, the appellate division issued the opinion in
question and granted Hagan’s petition, concluding that the Civil Service Board
lacked jurisdiction to adjudicate Hagan because it was required by the City
Ordinance to hold his grievance hearing within thirty days of the filing of his
grievance request and did not do so. The appellate division also found that the
City Manager’s disciplinary decision violated the essential requirements of law
because the City was required to hold a separate hearing when the City seeks to
terminate an employee and fails to do so. Finally, the appellate division concluded
that it had jurisdiction to hear Hagan’s petition and ordered that he be reinstated
with back pay. We reverse, as the appellate division deviated from the essential
requirements of the law in arriving at each decision.
Procedures Followed by the Parties
We first note that, as established in our parallel opinion in City of Miami v.
Jean-Phillipe, No.17-1172 (Fla. 3d DCA ____, 2017), which is issued
simultaneously herewith, Hagan properly availed himself of his right to review the
City Manager’s decision in the appellate division of the circuit court.2 Miami-
2Hagan describes his petition, in part, as seeking review of the Civil Service
Board’s findings of fact and conclusions of law. The appellate division also
4
Dade Cnty. v. Moreland, 879 So. 2d 23 (Fla. 2d DCA 2004); Bass v. Metro Dade
Cnty. Dep’t of Corr. and Rehab., 798 So. 2d 835 (Fla. 3d DCA 2001); City of
Miami Springs v. Barad, 448 So. 2d 510, 511 (Fla. 3d DCA 1983); Sch. Bd. of
Leon Cty. v. Mitchell, 346 So. 2d 562, 568 (Fla. 1st DCA 1977) (cited by Barad,
examining history of the APA and holding “in the vast majority of cases, the sole
method of challenging agency action, whether formally recognized as an ‘order’ or
a ‘rule’, as it affects the substantial interests of a party is by petition for review to
the appropriate Court of Appeal.”).
Further, although Hagan captioned his pleading in the appellate division of
the circuit court as a petition for certiorari, the review which was, and should have
been, afforded by the appellate division was plenary. 2 Fla. Prac., Appellate
Practice § 19:9 (2016 ed.) stating:
captioned its opinion as being “On Petition for Writ of Certiorari from the City of
Miami Civil Service Board.” As is discussed below, the appellate division’s
review is from the determination by the City Manager, not the Civil Service Board.
In a proceeding before the appellate division an employee may only challenge the
factual findings made by the City Manager and not those made by the Civil Service
Board. Where the City Manager adopts the finding by the Civil Service Board,
such review may be identical, but it should be clarified that the appellate division is
not actually reviewing the actions of the Civil Service Board.
We also note here that we are sympathetic to the argument that the “factual
findings” by the Civil Service Board are often simply recitations of the testimony
provided and not any actual findings. We note that it would greatly assist the
parties to the proceedings and the reviewing tribunals if future recommendations
from the Civil Service Board actually detailed which facts it accepted in making its
determination, especially where, as here, conflicting testimony exists.
5
Article V, § 5(b) of the Florida Constitution states that the circuit
courts shall ‘have the power of direct review of administrative action
prescribed by general law.’ However, there is often no general statute
that authorizes an appeal from a decision by a local administrative
body such as a county commission. To implement the basic right of
appellate review, the courts have held that an unappealable decision
by a local administrative tribunal is reviewable by certiorari in the
circuit court. This use of certiorari is unlike any other, in that the
scope of review is actually more like a plenary appeal.
[e.s.] In this case, no general statute authorizes appeal from the actions of the City
Manager so appeal to the appellate division is the permitted remedy.
City of Miami Code Provisions
In pertinent parts, the City of Miami Code of Ordinances states:
40-122 – Disciplinary Actions Generally.
(a) Authority of city manager, department director;
appeals to board; investigatory, evidentiary powers of
board. Any officer or employee in the classified service
may be removed, fined, laid off, or reduced in grade by
the city manager or by the director of the department in
which he/she is employed, for any cause which will
promote the efficiency of the service; but he/she must be
furnished with a written statement of the reasons therefor
within five days from the date of the removal,
suspension, fine, layoff, or reduction in grade, and be
allowed a reasonable time for answering such reasons in
writing, which shall be made a part of the records of the
board; and he/she may be suspended from the date when
such written statement of reason is furnished him/her.
No trial or examination of witnesses shall be required in
such case except at the discretion of the city manager or
the department director.
Any employee in the classified service who deems that
he/she has been suspended, removed, fined, reduced in
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grade or demoted without just cause may, within 15 days
of such action by the department director, request in
writing a hearing before the civil service board to
determine the reasonableness of the action. [e.s.] The
board shall, within 30 days after appeal of the employee
disciplined, proceed to hear such appeal. After hearing
and considering the evidence for and against the
employee, the board shall report in writing to the city
manager its findings and recommendations. The city
manager shall then sustain, reverse, or modify the action
of the department director . . . .
....
40-124 – Appeals from Disciplinary Actions.
(a) Generally. When any employee in the classified
service with permanent civil service status has been
suspended, reduced in rank, or dismissed appeals to the
board, the appeal must be made in writing within 15 days
from the effective date of the suspension, reduction, or
dismissal; and the board within 30 days shall proceed to
hear such appeal. The board, recognizing the
disciplinary authority of the administrative head . . . shall
make its findings in writing to the city manager for
his/her consideration, who shall enter an order affirming,
reversing or modifying the disciplinary action of the
department head. …
(emphasis added)
It is noted that the Code of Ordinances does not expressly address the rights of the
parties to any further review of a disciplinary action after the City Manager has
issued her or his final determination. Nevertheless, on the authorities cited above,
an affected employee – but not the City3 – has the right to review by the appellate
division of the circuit court.
7
Punishments Imposed
As also established in Jean-Phillipe, the City of Miami Ordinances are clear
that following a Civil Service Board review of a disciplinary action, the City
Manager shall review the Civil Service Board’s factual findings to determine
whether they are supported by substantial competent evidence and also review the
Board’s disciplinary recommendation. In reviewing the disciplinary
recommendation, the City Manager has three options: he or she may 1) affirm; 2)
reverse; or 3) modify the disciplinary action against the employee. Jean-Phillipe,
No. 17-1172 (Fla. 3d DCA ____, 2017). It is equally plain that the term “modify”
necessarily includes the possibility of an increase in that disciplinary action up to
and including dismissal. Thus, any employee who opts to seek a Civil Service
Board review of a disciplinary action against him or her takes the risk that a
harsher penalty may be imposed as a result of such an appeal and must give due
consideration to that possibility when deciding whether or not to seek Civil Service
Board review. See, City of Miami v. Reynolds, 34 So. 3d 119, 120 (Fla. 3d DCA
2010), where this Court agreed with the argument that “once misconduct has been
3 We reiterate our determination in Jean-Phillipe that the City has no right to
further review of the City Manager’s ruling because he or she is acting on the
City’s behalf and no legal principle permits a party to appeal from its own actions.
We also reiterate that any implication to the contrary in City of Miami v. Martinez-
Esteve, 125 So. 3d 295 (Fla. 3d DCA 2013) was dictum. Moreover, that case did
not address factual findings and conclusions of law by the Civil Service Board but
instead involved only interpretation of City policy, so any such statement is
inapplicable to the facts here in any event.
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determined by the Civil Service Board, the penalty to be assessed comes within the
exclusive discretion of the City Manager and may be imposed without
elucidation.”
Because the Ordinance language is clear and because there is a long line of
cases reconfirming the City Manager’s authority to “modify” a disciplinary
sanction,4 we reject Hagan’s contention that he was not on notice that he could be
terminated by the City Manager.5 We further conclude that the appellate division
violated this clearly established principle of law in ruling that the City was required
to institute separate proceedings in order to terminate a civil service employee.
4 City of Miami v. Reynolds, 34 So. 3d 119 (Fla. 3d DCA 2010), supra; Miami-
Dade Cnty v. Jones, 778 So. 2d 409 (Fla. 3d DCA 2001) (same); Kee v. Miami-
Dade Cnty, 760 So. 2d 1094 (Fla. 3d DCA 2000) (denying petition for certiorari
“because the county manager has the complete discretion to determine the
appropriate penalty where the hearing officer has decided that an offense requiring
discipline was committed.”); City of Miami v. White, 165 So. 2d 790, 791 (Fla. 3d
DCA 1964) (“It may be that the punishment imposed was severe and obviously it
was more severe than would have been imposed by the Civil Service Board, but as
we have pointed out, it was not the prerogative of the Civil Service Board to
punish the appellant but that of the City Manager.”); State ex re. Eldredge v.
Evans, 102 So. 2d 403, 405 (Fla. 3d DCA 1958) (“it was not the prerogative of the
Civil Service Board to punish the appellant but that of the City Manager”).
5 We also reject Hagan’s contention that his appeal was limited to an appeal of a
suspension by virtue of City of Miami Civil Service Rule 14.10 and that no other
discipline could be imposed against him as a result of the language of that rule.
Hagan’s request for hearing was not made under that Rule, but instead was made
under Rule 14.3 and that rule specifically echoes the language of Ordinance 40-124
in recognizing the City Manager’s ability to modify a disciplinary action and is not
limited to actions involving only “employees reduced in pay or position, laid off or
suspended.”
9
Nowhere is there any authority for such a requirement. As stated above, the City
Manager has the sole authority to affirm, reverse, or to modify the disciplinary
action against the employee. Such modification can include dismissal. Thus, we
reverse on these issue.
We acknowledge Hagan’s argument that the City Manager’s “modification”
of his discipline from suspension to termination creates the appearance that Hagan
was penalized for his decision to appeal his initial suspension through the Civil
Service Board as opposed to arbitration or determining not to challenge the
suspension. However, that is the result of the current wording of the Ordinances
that we are powerless to modify.
Factual Findings
As indicated above, upon review of the Civil Service Board’s
recommendations, the City Manager accepted the Civil Service Board’s findings of
fact. Thus, the City Manager’s ability to review those facts is not an issue in this
appeal. We note only to reiterate that the City Manager has the ability to review
such findings of fact for the limited purpose of determining whether they are
supported by competent substantial evidence and that her or his review is to be
conducted in the same manner as any other reviewing agency. Jean-Phillipe and
cases cited therein.
10
Civil Service Board’s Duty to Conduct Hearings
After oral argument, the appellate division of the circuit court directed the
parties to submit additional documents. Based on those documents, the appellate
division sua sponte concluded that the Civil Service Board did not have
jurisdiction to conduct the hearing requested by Hagan because it was required to
and had not conducted such hearing within thirty days of Hagan’s request.
This issue was not raised by either party to the proceeding before it, but the
appellate division determined that the issue of jurisdiction may be raised at any
time. We do not dispute that ruling, but determine that it was misapplied in this
case. Dep't of Revenue v. Graczyk, 206 So. 3d 157, 159 (Fla. 1st DCA 2016)
(“The issue of whether a lower tribunal has subject matter jurisdiction is a question
of law subject to de novo review.” citing Faulk v. State, Dep't of Revenue, 157 So.
3d 534, 535–36 (Fla. 1st DCA 2015)). We are unable to locate, and the appellate
division did not cite to, any case in which the failure to hold a hearing within a
specified time has deprived a tribunal of jurisdiction.6 “Generally so long as a
court has jurisdiction over the subject matter and a party, a procedural defect
occurring before the entry of a judgment does not render a judgment void.”
Sterling Factors Corp. v. U.S. Bank Nat. Ass'n, 968 So. 2d 658, 666 (Fla. 2d DCA
2007).
6As opposed to the failure of a party to timely file a pleading or other required
document, which can deprive a tribunal of jurisdiction.
11
Once again, we reverse as the appellate division’s conclusion departed from
the essential requirements of the law. While we acknowledge that Ordinances 40-
122 and 40-124 state that the Civil Service Board “shall proceed to hear such an
appeal” thirty days from the appeal by an employee, we conclude that such
terminology does not mean that the Civil Service Board loses its jurisdiction to
hear an appeal if more than thirty days lapse after an employee files a request for
such a hearing. First, there is no precedent for such a conclusion in the wide
history of proceedings subsequent to Civil Service Board recommendations, and
the Ordinances make no such conclusion. The ordinances require the Board after
thirty days to “proceed to hear such appeal.” It does not require that the hearing
take place within the thirty days. It requires only that the Board proceed (which
means to go forward) to having the hearing. The Civil Service Board Manual of
Procedures requires only that the Board “schedule a hearing within 30 days after
receipt of an employee’s written request for such a hearing.” All that is required is
that the hearing be scheduled not that the hearing take place.
Hagan further argues that should the Civil Service Board not hold the
hearing within thirty days the effect would be that the employee would be helpless
to get her or his motion heard. That is not the case. As stated in City of
Hollywood v. Fielding, 362 So. 2d 362 (Fla. 4th DCA 1978), where there is no
statutory provision to remedy a Civil Service Board’s failure to hold a hearing, an
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affected employee may seek an order from the circuit court requiring the board to
hold the hearing. Reinstatement of a disciplined employee or rescission of the
discipline is not the proper remedy. Id. We agree.
We therefore conclude that the appellate division departed from the essential
requirements of law on this issue as well and also reverse on that ground. In light
of this reversal and the others above, we need not address the remaining issues
raised by the City.
For the reasons stated above, we quash the opinion of the circuit appellate
division and remand for further proceedings consistent with this opinion.
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