       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 16, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1733
                       Lower Tribunal No. CA-2017-001
                             ________________


                                City of Miami,
                                    Appellant,

                                        vs.

             Miami Lodge #20, Fraternal Order of Police,
                                    Appellee.


    An Appeal from the State of Florida, 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.


Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.

      ROTHENBERG, C.J.

      The 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.

                                   BACKGROUND

      This 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.

      On 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



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Court. See City of Miami v. Hagan, 235 So. 3d 977 (Fla. 3d DCA 2017) (“Hagan

I”).

   A. Hagan’s election to appeal his suspension to the Civil Service Board

       Hagan 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.

       After 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



                                          3
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.

      On May 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.

      Thereafter, 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 improper.

      On November 13, 2017, this Court granted certiorari review and quashed the



                                          4
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.

    B. Hagan’s Grievance

      After 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.1 The FOP sought to arbitrate the grievance and, on

October 13, 2016, proposed an arbitrator. In response, Ms. Panoff, an Assistant

City Attorney, stated:

      Our position on Hagan is that it is not arbitrable since Hagan elected
      his remedy pursuant to Article 6.4 of the applicable [Collective
      Bargaining Agreement]. Specifically, Hagan chose to appeal his
      suspension to the Civil Service Board. After the City Manager’s
      termination, Hagan chose to appeal to the Circuit Court, Appellate

1 The City’s Director of Human Resources explained that Hagan’s grievance had
been denied by the City because Hagan had previously elected the remedy of
appealing his suspension to the Civil Service Board, and thus, he could not pursue
a grievance with the City.

                                         5
      Division, and the case is currently pending before the Third District
      Court of Appeal. Therefore, regardless of whether one argues that he
      elected a remedy with the Civil Service appeal or with the appellate
      proceeding, Hagan chose a remedy other than the grievance
      procedure.

      Based on the City’s refusal to arbitrate the grievance, the FOP filed an unfair

labor practice claim against the City.    The charging document alleges that “the

Management Rights Article 4.1 [and Article 6.6] of the [Collective Bargaining

Agreement] . . . clearly limits the City to imposing only one form of disciplinary

action,” and the City’s refusal to advance the grievance to arbitration constitutes an

unfair labor practice. On February 24, 2017, a PERC-appointed hearing officer

conducted a telephonic evidentiary hearing. The hearing officer recommended that

PERC issue a final order directing the City to:         (1) cease and desist from

unilaterally refusing to process grievances through to arbitration and similarly

interfering with the exercise of any rights guaranteed under Chapter 447, Part II,

Florida Statutes; (2) arbitrate Hagan’s grievance; (3) pay the FOP its reasonable

attorney’s fees and costs; and (4) post, for sixty days, a notice to bargaining unit

members advising them of the contents of PERC’s order.            Thereafter, PERC

entered a final order adopting the hearing officer’s factual findings, incorporating

the hearing officer’s recommended order, and sustaining the FOP’s unfair labor

practice claim. The City’s appeal of PERC’s order follows.

                                    ANALYSIS



                                          6
      Our review of PERC’s corrected final order is de novo. Where an agency’s

interpretation of law conflicts with the plain and ordinary intent of the law or

where the application of a statute does not require special agency expertise, no

deference need be given to the agency’s interpretation. Miami-Dade Cty. v. Gov’t

Supervisors Ass’n of Fla., 907 So. 2d 591, 593-94 (Fla. 3d DCA 2005).

      Because we find that PERC’s interpretation is in conflict with the plain and

clear language of section 447.401, Florida Statutes (2016), we afford PERC’s

interpretation no deference. Under section 447.401 and Articles 6.4, 6.6, and 6.8

of the governing Collective Bargaining Agreement, Hagan was entitled to only one

remedy.    Because he elected to appeal his suspension to the Civil Service Board

and his subsequent termination to the circuit court appellate division, Hagan was

precluded from relitigating his disciplinary action through the Collective

Bargaining Agreement grievance process. We therefore conclude that PERC erred

by addressing Hagan’s grievance and determining that the City committed an

unfair labor practice by refusing to process and arbitrate Hagan’s grievance.

      Section 447.401 provides career service employees with various avenues to

address his or her grievances. There is nothing ambiguous about what section

447.401 provides, including its limiting language. Section 447.401 provides, in

relevant part, as follows:

      A career service employee shall have the option of utilizing the civil
      service appeal procedure, an unfair labor practice procedure, or a


                                         7
        grievance procedure established under this section, but such
        employee is precluded from availing himself or herself to more
        than one of these procedures.

(emphasis added). The following Articles in the governing Collective Bargaining

Agreement are equally clear.

        6.4. It is further agreed by the F.O.P. that bargaining unit members
        covered by this Agreement shall make an exclusive Election of
        Remedy prior to filing a 2nd step grievance or initiating action for
        redress in any other forum. . . . The Election of Remedy form will
        indicate whether the aggrieved party or parties wish to utilize the
        Grievance Procedure contained in this Agreement or process the
        grievance, appeal or administrative action before a governmental
        board, agency or court proceeding. Selection of redress other than
        through the Grievance Procedure contained herein shall preclude the
        aggrieved party or parties from utilizing said Grievance Procedure for
        adjustment of said grievance.

        6.6. Only a bargaining unit member who has permanent Civil Service
        status as a sworn Police Officer in the Miami Police Department may
        appeal a suspension, demotion, or dismissal through the grievance
        procedure contained in this Agreement or in accordance with the
        appeal procedure of the Civil Service Rules, but not both. Such
        grievances shall be filed at Step 3 within the time limits set forth for
        Step 1.

        6.8. Grievances shall be processed in accordance with the following
        procedure:
        ....

        Step 2.

        If the grievance has not been satisfactorily resolved at Step 1,2 the

2   Step 1 under the Collective Bargaining Agreements is as follows:
         The aggrieved bargaining unit member shall discuss the grievance
         with his immediate supervisor within seven (7) working days of the
         occurrence which gave rise to the grievance.             The F.O.P.

                                           8
      bargaining unit member or the Employee Organization representative
      shall complete the Election of Remedy form provided for in Section
      6.4 of this Article before initiating the grievance to the second step of
      the Grievance Procedure. If the aggrieved party or parties elect the
      remedy other than the Grievance Procedure contained herein, the
      grievance shall be withdrawn for redress consistent with the
      Election of Remedy form. . . .

(emphasis added).

      Hagan chose to pursue a Civil Service Board review of his discipline, rather

than utilizing the grievance procedure established under section 447.401 or the

Collective Bargaining Agreement, and thereafter pursued an appeal to the circuit

court appellant division to address the adverse Civil Service Board determination.

Thus, under both section 447.401 and the Collective Bargaining Agreement, the

grievance procedure under the Collective Bargaining Agreement was no longer

available to Hagan or to the FOP for the purpose of addressing the disciplinary

action. Consequently, the City was not required to arbitrate Hagan’s grievance

under the grievance procedure, and PERC erred by concluding that the City’s

refusal to arbitrate the grievance constituted an unfair labor practice.

      Our conclusion that Hagan’s election of the Civil Service Review procedure

is a bar to pursuing the union grievance procedure is not only supported by section

447.401 and the Collective Bargaining Agreement, it is supported by the case law.

      representative may be present to represent the bargaining unit member
      if the bargaining unit member desires him present. The immediate
      supervisor shall attempt to adjust the matter and/or respond to the
      bargaining unit member within (7) working days.

                                           9
Florida courts have consistently applied section 447.401 to bar attempts to pursue

more than one avenue of redress. See, e.g., Metro. Dade Cty. v. Dade Cty. Ass’n

of Firefighters, Local 1403, 575 So. 2d 289, 290 (Fla. 3d DCA 1991) (holding that

the Association of Firefighters’ appeal of a firefighter’s discharge through the civil

service appeal procedure foreclosed any relief under the union grievance

procedure); Hallandale Prof’l Firefighters, Local 2238 v. City of Hallandale, 777

So. 2d 435, 435-36 (Fla. 4th DCA 2001) (holding that, by pursuing an unfair labor

practice charge with PERC, the union was barred from also seeking arbitration of

the same charges); Bass v. Dep’t of Transp., 516 So. 2d 972, 972 (Fla. 1st DCA

1987) (holding that PERC was required to dismiss the employee’s civil service

appeal because the employee had previously sought relief through a grievance

procedure established by collective bargaining agreement).

      Hagan contends that his union grievance action was not barred because at

the time he elected to appeal to the Civil Service Board he had only been

suspended, not terminated. This argument is without merit for two reasons. First,

Hagan was on notice prior to his election to appeal his suspension to the Civil

Service Board that the Board hearing his appeal would only have the authority to

make a recommendation to the City Manager and that the City Manager had the

authority to accept or modify the discipline recommended by the Board. Hagan,

therefore, was on notice of the risk he was taking by appealing his suspension and



                                         10
the preclusive effect of his election of this remedy. Second, Hagan has already

litigated the same issues at every level and every forum through the administrative

process he now wishes to arbitrate and litigate through the union grievance

process.

   A. Hagan was on notice that his discipline could be modified when he
      elected the Civil Service Remedy

      The City of Miami Code of Ordinances provides, in relevant part, as

follows:

      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
                  witness 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. The board shall, within 30 days after appeal of the


                                        11
             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 director. . . .

(emphasis added).

      This Court previously found in Hagan I and in a parallel opinion, City of

Miami v. Jean-Phillipe, 232 So. 3d 1138, 1145 (Fla. 3d DCA 2017), that the City

of Miami Ordinances are clear, and that following a Civil Service Board review of

a disciplinary action, the City Manager will review the Civil Service Board’s

findings and disciplinary recommendation, and the City Manager may affirm,

reverse, or modify the disciplinary recommended action. Hagan I, 235 So. 3d at

981-82; see also City of Miami v. Reynolds, 34 So. 3d 119, 120 (Fla. 3d DCA

2010) (concluding that “once misconduct has been determined by the Civil Service



                                         12
Board, the penalty to be assessed comes within the exclusive discretion of the City

Manager and may be imposed without elucidation”); Kee v. Miami-Dade Cty., 760

So. 2d 1094, 1094-95 (Fla. 3d DCA 2000) (concluding that the County Manager

had complete discretion to determine the appropriate penalty where the hearing

officer had decided that an offense requiring discipline had been committed, and

therefore, denying the petition for writ of certiorari); 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[.]”).

      Hagan, therefore, was on notice that, when he elected to appeal his

disciplinary action to the Civil Service Board, the City Manager would ultimately

determine whether to affirm, reverse, or modify the discipline recommended by the

Civil Service Board. The City Manager chose the latter.

   B. Hagan has already fully litigated his claims

      The grievance filed by the FOP on Hagan’s behalf alleged that the City

Manager’s decision to terminate Hagan’s employment: (1) violated Hagan’s

double jeopardy rights because Hagan was initially suspended and had already

served his suspension; (2) violated Hagan’s due process rights because he was not

put on notice that his suspension could be modified to a termination and, had



                                         13
Hagan known that the City Manager could terminate Hagan’s employment, he

would not have elected the Civil Service Board route; and (3) the City Manager

lacked sufficient evidence to impose such a sanction.

      The record reflects that each of these grievances have already been

thoroughly litigated through the appeals following the adverse Civil Service Board

disciplinary recommendation. Hagan raised these arguments in his appeal to the

circuit court. He claimed that the City Manager abused his power by terminating

him for the same conduct that resulted in his suspension, which he had already

served; his termination constituted double jeopardy and was unsupported by

competent substantial evidence; and the termination was without notice and an

opportunity to be heard. Hagan specifically asked the circuit court to consider the

Collective Bargaining Agreement, cited to the Collective Bargaining Agreement,

and relied on it.

      Thereafter, the City sought second-tier certiorari review in this Court. In his

response to the City’s petition, Hagan admitted that he chose to appeal his

suspension to the Civil Service Board instead of pursuing an alternate remedy or

selecting arbitration as authorized by the Collective Bargaining Agreement.

However, he argued, as he argued below, that the City Manager abused his power,

and punished him twice for the same offense, thus constituting double jeopardy

and violating his due process rights. This Court concluded that the City of Miami



                                        14
Code of Ordinances was clear; that Hagan was put on notice that he could be

terminated by the City Manager, and thus, that there was no due process violation;

and that his discipline was modified – he was not punished twice for the same

conduct.

      The FOP is therefore attempting to litigate, through the process set forth in

the Collective Bargaining Agreement, the same claims Hagan has already litigated

through the Civil Service Board process. The purpose of the election of remedies

doctrine is to preclude this exact scenario. See Hernandez v. United Contractors

Corp., 766 So. 2d 1249, 1252 (Fla. 3d DCA 2000) (recognizing that the doctrine of

election of remedies “is an application of a doctrine of estoppel and provides that

the one electing should not later be permitted to avail himself of an inconsistent

course”) (quoting Williams v. Robineau, 168 So. 644, 646 (Fla. 1936)); see also

Schafer v. City of Pompano Beach v. IAFF, Local 1549, 39 F.P.E.R. ¶ 120 (2012)

(“Section 447.401, Florida Statutes, raises an absolute statutory bar to re-litigating

an employer’s disciplinary action in an unfair labor practice case when the

employee has already elected to challenge that disciplinary action in a civil service

case or a grievance/arbitration.”).

                                      Conclusion

        Hagan previously elected to challenge his 120-day suspension by appealing

to the Civil Service Board and then appealing that determination to the circuit court



                                         15
appellate division, which ultimately led to review by this Court. Thus, the FOP’s

attempt to pursue the same grievances Hagan has already fully litigated and which

have been decided adversely violates section 447.401, Florida Statutes, and

Articles 6.4, 6.6, and 6.8 of the governing Collective Bargaining Agreement. The

City, therefore, was not required to arbitrate the grievance brought by the FOP, and

PERC should have dismissed the grievance rather than concluding that the City’s

refusal to arbitrate constituted an unfair labor practice.

      We therefore reverse the final order issued by PERC, which determined that

the City engaged in an unfair labor practice, and the improperly awarded fees.

      Reversed.




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