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City of Miami v. Santos

Florida Court of Appeals, Third District

August 21, 2019

City of Miami, et al., Appellants,
Adrian Santos, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Tribunal No. 17-29422, Antonio Marin, Judge.

          Victoria Mendez, City Attorney, and Kerri L. McNulty, Sr. Appellate Counsel, and Kevin R. Jones, Assistant City Attorney, and Stephanie K. Panoff, Assistant City Attorney, and Forrest L. Andrews, Assistant City Attorney, for appellants.

          The Cunill Law Firm and Andrea S. Cunill, for appellee.

          Before LOGUE [1], SCALES [2] and LINDSEY, JJ.

          LOGUE, J.

         The City of Miami appeals the trial court's order which temporarily (1) stayed the City from proceeding with a certain internal administrative hearing, and (2) directed the City to allow Appellee to bring multiple attorneys to the hearing in contravention of the City's procedures. Because the order constitutes a temporary injunction, but the requirements for entering a temporary injunction were not met, we reverse.

         Appellee was an officer of the City of Miami Police Department. The City fired him for possession and use of a controlled substance while off duty. In contesting his termination, Appellee has challenged the legality of the drug, blood, and urine tests involved. On December 15, 2017, Appellee was served with a formal reprimand. On January 8, 2018, the State arrested and charged Appellee with drug possession. On January 10, 2018, the City terminated Appellee's employment.

         Appellee has filed various administrative and legal challenges to his termination. He filed a grievance under the controlling Collective Bargaining Agreement wherein, if successful, he can receive the remedies of back pay and reinstatement. He has filed a complaint in circuit court for declaratory and injunctive relief under Florida Statutes sections 112.532 and 112.534, which provide more limited remedies. Fraternal Order of Police, Gator Lodge 67 v. City of Gainesville, 148 So.3d 798, 803 (Fla. 1st DCA 2014). He also requested a Departmental Disciplinary Review Board hearing.

         A Departmental Disciplinary Review Board hearing is an administrative proceeding within the Police Department that is voluntary, non-binding, and intended to be non-legal in nature. It allows a panel within the department to review the reprimand and make a recommendation to the Police Chief. The City's rules governing such hearings provide that the disciplined employee is entitled, but not required, to have a union representative present, but that "private attorneys, private investigators, or any other person shall not represent the disciplined employee." Appellee requested the hearing be deferred until after his criminal prosecution was resolved. That request was apparently denied, and the hearing was scheduled for January 9, 2018.

         At this point, the record takes an unconventional turn. The record consists of a court reporter's transcript of various conversations which appear to take place that morning in the downstairs lobby of the police building and a telephone conference with the trial court's judicial assistant. As we interpret the transcript, the trial court was not present for any of these conversations. [3]

         On the morning of his Departmental Disciplinary Review Board hearing, the Appellee arrived at the first floor of the police building. He was accompanied by three attorneys and a court reporter. Appellee, however, refused to proceed to the hearing room on the second floor. He gave two reasons: (1) the City failed to provide him with a wheelchair;[4] and (2) he insisted on bringing three attorneys, while the City would allow only one. It appears the chairman of the Board offered to consider a request for a short-term continuance, but Appellee made no response. Apparently, the hearing took place in his absence.

         Ultimately, the Appellee's attorneys initiated a telephone conference with the Judicial Assistant to the judge presiding over the Appellee's complaint for relief under section 112.534. The attorney for the City joined the conference after it began. The Appellee made a verbal "emergency motion" to the Judicial Assistant to stay the administrative hearing for the two reasons previously stated. Appellee argued "the city is divested of jurisdiction until the Court rules on the injunction [requested in Appellee's complaint]."

         Without waiting for the City's response, the Judicial Assistant left the conference call (presumably to consult the court) and returned to announce that the court decided to stay the Departmental Disciplinary Review Board hearing and ordered that Appellee be allowed to bring all counsel to the hearing. The City requested an opportunity to be heard and objected based on the lack of notice for the emergency hearing, the treatment of a purely voluntary administrative matter as a legal hearing, and to the entry of an injunction after the hearing was completed. The Judicial ...

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