City of Miami v. Jean-Phillipe

232 So.3d 1138

CITY OF MIAMI, Appellant,

v.Jean Marie JEAN–PHILLIPE, Appellee.

No. 3D16–1172

District Court of Appeal of Florida, Third District.

Opinion filed November 13, 2017

Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City Attorney, for appellant.

Buschel Gibbons, P.A. and Robert C. Buschel and Eugene G. Gibbons (Ft. Lauderdale), for appellee.

Before SUAREZ, LAGOA, and SCALES, JJ.

SUAREZ, J.

The City of Miami (the "City") appeals the circuit court's grant of summary judgment in favor of Appellee Jean Marie Jean–Phillipe ("Jean–Phillipe") in his challenge to the City Manager's actions following a Civil Service Board review of a disciplinary action against him. Finding error in the procedures followed below, we reverse and remand so that Jean–Phillipe may pursue his proper remedy of an appeal to the appellate division of the circuit court.

Factual Background

As the details of the complaints lodged against Jean–Phillipe are irrelevant to the issue in this appeal and our analysis of that issue, it is sufficient for purposes of this opinion to state that following an investigation by the City's police department, Jean–Phillipe, a City of Miami police officer, was issued a reprimand and suspended for 200 hours. Jean–Phillipe appealed that suspension to the Civil Service Board pursuant to the remedies afforded him under the City of Miami Code of Ordinances. The Civil Service Board found Jean–Phillipe not guilty of the actions for which he was disciplined. Those written findings were forwarded to the City Manager, also pursuant to the procedures set forth in the Code of Ordinances. The City Manager rejected the finding of innocence as to one charge and imposed a 200 hour suspension as to that charge.

Jean–Phillipe then brought an action for declaratory relief in the circuit court. Jean–Phillipe argued that the City Manager did not have the authority to reverse the Civil Service Board's finding of not guilty. Over the City's objection, the circuit court granted summary judgment in favor of Jean–Phillipe and issued a Final Judgment which vacated the City Manager's suspension and remanded to the City to reinstate the Civil Service Board's recommended finding of not guilty. The City then filed the present appeal.

Because we find that the procedures followed by both parties in this case were incorrect, we reverse and remand. As explained below, the appropriate remedy for Jean–Phillipe was to seek review of the City Manager's determination in the appellate division of the circuit court and not in the circuit court itself. As further explained below, the City Manager's review of the findings of fact by the Civil Service Board was limited, and, upon remand, the appellate division will have to decide whether his determination that those conclusions were not supported by competent substantial evidence was proper. Finally, we clarify that the City had no right to challenge the City Manager's final determination on its own, but could properly respond to any appeal brought by Jean–Phillipe.

City of Miami Code Provisions

In pertinent parts, the 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 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... [e.s.]

....

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 director.... [e.s.]

It should be 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.

Punishments Imposed

While it must be acknowledged that the foregoing Ordinances are not a model of careful or clear writing, the Ordinances do make it abundantly clear that an employee in classified service may request a review by the Civil Service Board for a determination of the reasonableness of the disciplinary action brought against the employee. The Civil Service Board acts in place of a jury as the trier of facts. The Board determines the truth or falsity of the facts and makes findings of guilt or innocence and makes a recommendation as to discipline, if any. State ex rel. Eldredge v. Evans, 102 So.2d 403 (Fla. 3d DCA 1958). Following the review, the Civil Service Board is required to submit a written report to the City Manager of its findings and recommendations. The City Manager then reviews the Civil Service Board's Report to determine whether the Board's factual findings are supported by competent substantial evidence and reviews the Board's recommended discipline. City of Miami v. Huttoe, 38 So.2d 819, 820 (Fla. 1949) ; City of Miami v. Reynolds, 34 So.3d 119 (Fla. 3d DCA 2010) ; Town of Surfside v. Higgenbotham, 733 So.2d 1040, 1045 (Fla. 3d DCA 1999). The City Manager is not required to follow the Board's disciplinary recommendation as it is the sole prerogative of the City Manager to impose the discipline. Reynolds, 34 So.3d at 120 ; see City of Miami v. White, 165 So.2d 790, 791–92 (Fla. 3d DCA 1964).

The City Manager has three disciplinary options upon receipt of the Civil Review Board's written findings of fact and recommendation. He or she may 1) affirm; 2) reverse; or 3) modify the disciplinary action recommended against the employee. It is equally plain that the term "modify" necessarily includes the possibility of an increase in that disciplinary action. 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.¹ See Reynolds, 34 So.3d at 120 (agreeing that "once misconduct has been 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.").

What is less clear, and what has been made less clear through the case law, is the proper procedure to be followed once the City Manager has entered her or his order. We seek here to clarify that issue so that the parties to all pending and future disciplinary actions subject to Sections 40–122 and 40–124 of the City of Miami Code of Ordinances, or their equivalents, may have a clear understanding of their rights and remedies.

First, it must be made plain that the City itself has no remedies following the City Manager's review of a disciplinary proceeding. This is so because the City Manager is, in effect, acting as the City when she or he reviews a Civil Service Board recommendation. No legal principle permits a party to appeal from its own determination.² Once the City Manager has acted, the City must simply abide by whatever determination has been made.

An employee subject to a disciplinary action is not, however, equally without remedy. Once the City Manager has issued her or his order, the employee may file an appeal with the appellate division of the circuit court. In that appeal the employee may challenge the City Manager's factual determinations, but not, as just explained, the disciplinary penalty imposed by the City Manager.

Prior Cases

A review of prior cases demonstrates that parties to a disciplinary proceeding have followed a number of paths in their efforts to obtain their desired outcome after the City Manager has acted.³

Despite the various procedures followed in those cases, this Court set forth the proper procedure for a disciplined employee to seek review of the City Manager's action in Miami–Dade Cnty. v. Moreland, 879 So.2d 23 (Fla. 3d DCA 2004). There, following a disciplinary action, review by the Civil Service Board and affirmance by the City Manager, the employee filed an independent complaint for discrimination and the County petitioned for prohibition to prevent that action from proceeding. In granting the petition, this Court expressly...