       Third District Court of Appeal
                                State of Florida

                         Opinion filed November 13, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                               No. 3D16-2177
                     Lower Tribunal Nos. 15-164 & 13-35D
                             ________________

                                 City of Miami,
                                     Petitioner,

                                         vs.

                                 Larry Hagan,
                                    Respondent.

      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Gisela Cardonne Ely, George A. Sarduy, and Eric Hendon, Judges.

      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.


1  See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010),
stating: “This Court has continually applied certain fundamental principles for the
use of certiorari to review decisions rendered by the circuit court acting in its
appellate capacity from the time common-law certiorari jurisdiction was first
recognized in 1855. We have consistently observed that ‘[a]s a case travels up the
judicial ladder, review should consistently become narrower, not broader.”
Therefore, when a district court considers a petition for second-tier certiorari
review, the ‘inquiry is limited to whether the circuit court afforded procedural due
process and whether the circuit court applied the correct law,’ or, as otherwise
stated, departed from the essential requirements of law. The departure from the
essential requirements of the law necessary for granting a writ of certiorari is
something more than a simple legal error. Rather, a district court should exercise
its discretion to grant review only when the lower tribunal has violated a clearly
established principle of law resulting in a miscarriage of justice.” (internal
citations omitted).

                                         2
                               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



                                         3
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-

2Hagan describes his petition, in part, as seeking review of the Civil Service
Board’s findings of fact and conclusions of law. The appellate division also

                                          4
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:



captioned its opinion as being “On Petition for Writ of Certiorari from the City of
Miami Civil Service Board.” As is discussed below, the appellate division’s
review is from the determination by the City Manager, not the Civil Service Board.
In a proceeding before the appellate division an employee may only challenge the
factual findings made by the City Manager and not those made by the Civil Service
Board. Where the City Manager adopts the finding by the Civil Service Board,
such review may be identical, but it should be clarified that the appellate division is
not actually reviewing the actions of the Civil Service Board.
       We also note here that we are sympathetic to the argument that the “factual
findings” by the Civil Service Board are often simply recitations of the testimony
provided and not any actual findings. We note that it would greatly assist the
parties to the proceedings and the reviewing tribunals if future recommendations
from the Civil Service Board actually detailed which facts it accepted in making its
determination, especially where, as here, conflicting testimony exists.

                                           5
       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


                                          6
             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,
             reversing 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.


                                          7
                              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. 17-1172 (Fla. 3d DCA ____, 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 agreed with the argument that “once misconduct has been
3 We reiterate our determination in Jean-Phillipe that the City has no right to

further review of the City Manager’s ruling because he or she is acting on the
City’s behalf and no legal principle permits a party to appeal from its own actions.
We also reiterate that any implication to the contrary in City of Miami v. Martinez-
Esteve, 125 So. 3d 295 (Fla. 3d DCA 2013) was dictum. Moreover, that case did
not address factual findings and conclusions of law by the Civil Service Board but
instead involved only interpretation of City policy, so any such statement is
inapplicable to the facts here in any event.


                                         8
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.”

      Because the Ordinance language is clear and because there is a long line of

cases reconfirming the City Manager’s authority to “modify” a disciplinary

sanction,4 we reject Hagan’s contention that he was not on notice that he could be

terminated by the City Manager.5 We further conclude that the appellate division

violated this clearly established principle of law in ruling that the City was required

to institute separate proceedings in order to terminate a civil service employee.


4  City of Miami v. Reynolds, 34 So. 3d 119 (Fla. 3d DCA 2010), supra; Miami-
Dade Cnty v. Jones, 778 So. 2d 409 (Fla. 3d DCA 2001) (same); Kee v. Miami-
Dade Cnty, 760 So. 2d 1094 (Fla. 3d DCA 2000) (denying petition for certiorari
“because the county manager has the complete discretion to determine the
appropriate penalty where the hearing officer has decided that an offense requiring
discipline was committed.”); City of Miami v. White, 165 So. 2d 790, 791 (Fla. 3d
DCA 1964) (“It may be that the punishment imposed was severe and obviously it
was more severe than would have been imposed by the Civil Service Board, but as
we have pointed out, it was not the prerogative of the Civil Service Board to
punish the appellant but that of the City Manager.”); State ex re. Eldredge v.
Evans, 102 So. 2d 403, 405 (Fla. 3d DCA 1958) (“it was not the prerogative of the
Civil Service Board to punish the appellant but that of the City Manager”).
5 We also reject Hagan’s contention that his appeal was limited to an appeal of a
suspension by virtue of City of Miami Civil Service Rule 14.10 and that no other
discipline could be imposed against him as a result of the language of that rule.
Hagan’s request for hearing was not made under that Rule, but instead was made
under Rule 14.3 and that rule specifically echoes the language of Ordinance 40-124
in recognizing the City Manager’s ability to modify a disciplinary action and is not
limited to actions involving only “employees reduced in pay or position, laid off or
suspended.”

                                          9
Nowhere is there any authority for such a requirement. As stated above, the City

Manager has the sole authority to affirm, reverse, or to modify the disciplinary

action against the employee. Such modification can include dismissal. Thus, we

reverse on these issue.

      We acknowledge Hagan’s argument that the City Manager’s “modification”

of his discipline from suspension to termination creates the appearance that Hagan

was penalized for his decision to appeal his initial suspension through the Civil

Service Board as opposed to arbitration or determining not to challenge the

suspension. However, that is the result of the current wording of the Ordinances

that we are powerless to modify.



                                   Factual Findings

      As indicated above, upon review of the Civil Service Board’s

recommendations, the City Manager accepted the Civil Service Board’s findings of

fact. Thus, the City Manager’s ability to review those facts is not an issue in this

appeal. We note only to reiterate that the City Manager has the ability to review

such findings of fact for the limited purpose of determining whether they are

supported by competent substantial evidence and that her or his review is to be

conducted in the same manner as any other reviewing agency. Jean-Phillipe and

cases cited therein.



                                         10
                 Civil Service Board’s Duty to Conduct Hearings

        After oral argument, the appellate division of the circuit court directed the

parties to submit additional documents. Based on those documents, the appellate

division sua sponte concluded that the Civil Service Board did not have

jurisdiction to conduct the hearing requested by Hagan because it was required to

and had not conducted such hearing within thirty days of Hagan’s request.

        This issue was not raised by either party to the proceeding before it, but the

appellate division determined that the issue of jurisdiction may be raised at any

time. We do not dispute that ruling, but determine that it was misapplied in this

case.    Dep't of Revenue v. Graczyk, 206 So. 3d 157, 159 (Fla. 1st DCA 2016)

(“The issue of whether a lower tribunal has subject matter jurisdiction is a question

of law subject to de novo review.” citing Faulk v. State, Dep't of Revenue, 157 So.

3d 534, 535–36 (Fla. 1st DCA 2015)). We are unable to locate, and the appellate

division did not cite to, any case in which the failure to hold a hearing within a

specified time has deprived a tribunal of jurisdiction.6 “Generally so long as a

court has jurisdiction over the subject matter and a party, a procedural defect

occurring before the entry of a judgment does not render a judgment void.”

Sterling Factors Corp. v. U.S. Bank Nat. Ass'n, 968 So. 2d 658, 666 (Fla. 2d DCA

2007).

6As opposed to the failure of a party to timely file a pleading or other required
document, which can deprive a tribunal of jurisdiction.

                                          11
      Once again, we reverse as the appellate division’s conclusion departed from

the essential requirements of the law. While we acknowledge that Ordinances 40-

122 and 40-124 state that the Civil Service Board “shall proceed to hear such an

appeal” thirty days from the appeal by an employee, we conclude that such

terminology does not mean that the Civil Service Board loses its jurisdiction to

hear an appeal if more than thirty days lapse after an employee files a request for

such a hearing. First, there is no precedent for such a conclusion in the wide

history of proceedings subsequent to Civil Service Board recommendations, and

the Ordinances make no such conclusion. The ordinances require the Board after

thirty days to “proceed to hear such appeal.” It does not require that the hearing

take place within the thirty days. It requires only that the Board proceed (which

means to go forward) to having the hearing. The Civil Service Board Manual of

Procedures requires only that the Board “schedule a hearing within 30 days after

receipt of an employee’s written request for such a hearing.” All that is required is

that the hearing be scheduled not that the hearing take place.

      Hagan further argues that should the Civil Service Board not hold the

hearing within thirty days the effect would be that the employee would be helpless

to get her or his motion heard.      That is not the case.       As stated in City of

Hollywood v. Fielding, 362 So. 2d 362 (Fla. 4th DCA 1978), where there is no

statutory provision to remedy a Civil Service Board’s failure to hold a hearing, an



                                         12
affected employee may seek an order from the circuit court requiring the board to

hold the hearing. Reinstatement of a disciplined employee or rescission of the

discipline is not the proper remedy. Id. We agree.

      We therefore conclude that the appellate division departed from the essential

requirements of law on this issue as well and also reverse on that ground. In light

of this reversal and the others above, we need not address the remaining issues

raised by the City.

      For the reasons stated above, we quash the opinion of the circuit appellate

division and remand for further proceedings consistent with this opinion.




                                        13
