final until disposition of timely filed motion for rehearing.
Appeal from the State of Florida Lower Tribunal No.
CA-2017-001, Public Employees Relations Commission.
Victoria Méndez, City Attorney, and Kevin R. Jones,
Stephanie K. Panoff, and Forrest L. Andrews, Assistant City
Attorneys, for appellant.
Buschel Gibbons, P.A., and Robert C. Buschel and Eugene G.
Gibbons (Fort Lauderdale), for appellee.
ROTHENBERG, C.J., and SALTER and SCALES, JJ.
City of Miami (the "City") appeals the corrected
final order issued by the Public Employees Relations
Commission ("PERC") in favor of Miami Lodge #20,
Fraternal Order of Police ("FOP"), which found that
the City engaged in an unfair labor practice. We have
jurisdiction under Article V, Section 4(b)(2) of the Florida
Constitution and section 447.504(1), Florida Statutes (2016).
For the reasons that follow, we reverse.
cause is again before this Court after a protracted series of
reviews of the disciplinary action taken against Larry Hagan
("Hagan"), a now former City of Miami police
officer, for workplace misconduct. Although, the facts
regarding the alleged misconduct are not relevant to this
appeal, the procedural history is.
November 12, 2013, Hagan was suspended for 120 hours without
pay and notified of his right to either: (1) appeal his
suspension to the City of Miami Civil Service Board
("Civil Service Board"); or (2)
initiate the grievance procedure outlined in the governing
Collective Bargaining Agreement. Hagan elected to appeal to
the Civil Service Board. Under this process, the Civil
Service Board reviews the evidence and makes a recommendation
to the City Manager who may sustain, reverse, or modify the
Civil Service Board's findings and/or recommendations.
The City Manager's determination may then be appealed to
the appellate division of the circuit court, and upon a
determination by the circuit court appellate panel, the
parties may petition for second-tier certiorari review in
this Court. See City of Miami v. Hagan, 235 So.3d
977 (Fla. 3d DCA 2017) ("Hagan I").
Hagan's election to appeal his suspension to the
Civil Service Board
elected to appeal his suspension, and on November 13, 2013,
he filed a request for a hearing with the Civil Service
Board. On March 31, 2015, the Civil Service Board found Hagan
guilty of most of the charges and recommended upholding
Hagan's 120-hour suspension. The Civil Service
Board's findings and recommendation were then submitted
to the City Manager. On April 17, 2015, the City Manager
affirmed the Civil Service Board's factual findings.
However, he modified Hagan's discipline from a 120-hour
suspension to a termination of employment.
obtaining the adverse ruling by the City Manager, Hagan took
two inconsistent actions: (1) on April 29, 2015, through the
FOP, he filed a grievance under the Collective Bargaining
Agreement; and (2) on May 21, 2015, Hagan sought review of
the City Manager's determination by the circuit court
appellate division. In his petition for certiorari filed in
the circuit court appellate division, Hagan argued that: (1)
the City Manager abused his power by terminating Hagan, who
had already been suspended for the same conduct and after he
had already served the suspension; (2) the termination, in
effect, resulted in "double jeopardy" because Hagan
was being punished twice for the same offense; and (3) the
decision to terminate Hagan was made without affording Hagan
due process because he allegedly was not put on notice or
given an opportunity to be heard. Hagan also specifically
asked the circuit court appellate panel to consider certain
sections of the Collective Bargaining Agreement.
31, 2016, the circuit court appellate panel overturned the
City Manager's termination of Hagan based upon its
conclusions that: (1) the Civil Service Board lacked
jurisdiction to hear Hagan's appeal because the Civil
Service Board failed to conduct a hearing within thirty days
of Hagan's request for a hearing; (2) the City
Manager's decision to terminate Hagan without conducting
a separate hearing resulted in successive sanctions for the
same offense; and (3) the City Manager's termination of
Hagan resulted in cumulative and successive punishments for
the same offense.
the City filed a second-tier petition for writ of certiorari
in this Court, seeking review of the circuit court appellate
panel's opinion reversing the City Manager's
termination of Hagan. In his response to the City's
petition for second-tier certiorari review, Hagan argued
that, although he had chosen to appeal his
suspension to the Civil Service Board instead
of pursuing the alternative route of selecting
arbitration, as authorized by the Collective Bargaining
Agreement, the City Manager's termination of Hagan was
November 13, 2017, this Court granted certiorari review and
quashed the circuit court appellate panel opinion, finding
that the circuit court appellate panel departed from the
essential requirements of law in reversing the City
Manager's termination of Hagan. Hagan I, 235
So.3d at 977. In Hagan I, this Court examined the
City's Code and the relevant case law, and concluded that
it was clear that the City Manager had the authority to
terminate Hagan, and that Hagan was on notice of that
possibility when he elected to appeal his suspension to the
Civil Service Board. Id.
Hagan elected to appeal his suspension to the Civil Service
Board on April 17, 2015, the FOP filed a grievance on
Hagan's behalf on April 29, 2015, under the Collective
Bargaining Agreement. On July 1, 2015, the Director of the
Department of Human Resources for the City denied Hagan's
grievance based on his prior election of
remedies. The FOP sought to arbitrate the grievance