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City of Miami v. Hagan

Florida Court of Appeals, Third District

November 13, 2017

City of Miami, Petitioner,
v.
Larry Hagan, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Gisela Cardonne Ely, George A. Sarduy, and Eric Hendon, Judges. Lower Tribunal Nos. 15-164 & 13-35D

          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.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- 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, ยง 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 ...

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