City of Miami v. Hagan

235 So.3d 977

CITY OF MIAMI, Petitioner,

v.Larry HAGAN, Respondent.

No. 3D16–2177

District Court of Appeal of Florida, Third District.

Opinion filed November 13, 2017

Rehearing Denied January 11, 2018

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.

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 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. 16–1172, 232 So.3d 1138, 2017 WL 5248184 (Fla. 3d DCA Nov. 13, 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–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:

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 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, re versing 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.

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. 16–1172 (Fla. 3d DCA Nov. 13, 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...