       Third District Court of Appeal
                               State of Florida

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

                               No. 3D16-1172
                          Lower Tribunal No. 15-9001
                             ________________

                                City of Miami,
                                    Appellant,

                                        vs.

                         Jean Marie Jean-Phillipe,
                                    Appellee.


      An appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

      Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City
Attorney, for appellant.

     Buschel Gibbons, P.A. and Robert C. Buschel and Eugene G. Gibbons (Ft.
Lauderdale), for appellee.


Before SUAREZ, LAGOA, and SCALES, JJ.

      SUAREZ, J.

      The City of Miami (the “City”) appeals the circuit court’s grant of summary

judgment in favor of Appellee Jean Marie Jean-Phillipe (“Jean-Phillipe”) in his
challenge to the City Manager’s actions following a Civil Service Board review of

a disciplinary action against him. Finding error in the procedures followed below,

we reverse and remand so that Jean-Phillipe may pursue his proper remedy of an

appeal to the appellate division of the circuit court.

                                Factual Background

      As the details of the complaints lodged against Jean-Phillipe are irrelevant to

the issue in this appeal and our analysis of that issue, it is sufficient for purposes of

this opinion to state that following an investigation by the City’s police

department, Jean-Phillipe, a City of Miami police officer, was issued a reprimand

and suspended for 200 hours. Jean-Phillipe appealed that suspension to the Civil

Service Board pursuant to the remedies afforded him under the City of Miami

Code of Ordinances. The Civil Service Board found Jean-Phillipe not guilty of the

actions for which he was disciplined. Those written findings were forwarded to

the City Manager, also pursuant to the procedures set forth in the Code of

Ordinances. The City Manager rejected the finding of innocence as to one charge

and imposed a 200 hour suspension as to that charge.

      Jean-Phillipe then brought an action for declaratory relief in the circuit court.

Jean-Phillipe argued that the City Manager did not have the authority to reverse the

Civil Service Board’s finding of not guilty. Over the City’s objection, the circuit

court granted summary judgment in favor of Jean-Phillipe and issued a Final



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Judgment which vacated the City Manager’s suspension and remanded to the City

to reinstate the Civil Service Board’s recommended finding of not guilty. The City

then filed the present appeal.

      Because we find that the procedures followed by both parties in this case

were incorrect, we reverse and remand. As explained below, the appropriate

remedy for Jean-Phillipe was to seek review of the City Manager’s determination

in the appellate division of the circuit court and not in the circuit court itself. As

further explained below, the City Manager’s review of the findings of fact by the

Civil Service Board was limited, and, upon remand, the appellate division will

have to decide whether his determination that those conclusions were not

supported by competent substantial evidence was proper. Finally, we clarify that

the City had no right to challenge the City Manager’s final determination on its

own, but could properly respond to any appeal brought by Jean-Phillipe.

                          City of Miami Code Provisions

      In pertinent parts, the 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


                                          3
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
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 . . . [e.s.]

....

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 . … [e.s.]


                             4
It should be 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.

                              Punishments Imposed

      While it must be acknowledged that the foregoing Ordinances are not a

model of careful or clear writing, the Ordinances do make it abundantly clear that

an employee in classified service may request a review by the Civil Service Board

for a determination of the reasonableness of the disciplinary action brought against

the employee. The Civil Service Board acts in place of a jury as the trier of facts.

The Board determines the truth or falsity of the facts and makes findings of guilt or

innocence and makes a recommendation as to discipline, if any. State ex rel.

Eldredge v. Evans, 102 So. 2d. 403 (Fla. 3d DCA 1958). Following the review,

the Civil Service Board is required to submit a written report to the City Manager

of its findings and recommendations. The City Manager then reviews the Civil

Service Board’s Report to determine whether the Board’s factual findings are

supported by competent substantial evidence and reviews the Board’s

recommended discipline. City of Miami v. Huttoe, 38 So. 2d 819, 820 (Fla. 1949);

City of Miami v. Reynolds, 34 So. 3d 119 (Fla. 3d DCA 2010); Town of Surfside

v. Higgenbotham, 733 So. 2d 1040, 1045 (Fla. 3d DCA 1999). The City Manager



                                         5
is not required to follow the Board’s disciplinary recommendation as it is the sole

prerogative of the City Manager to impose the discipline. Reynolds, 34 So. 3d at

120; see City of Miami v White, 165 So. 2d 790, 791- 92 (Fla. 3d DCA 1964).

       The City Manager has three disciplinary options upon receipt of the Civil

Review Board’s written findings of fact and recommendation. He or she may 1)

affirm; 2) reverse; or 3) modify the disciplinary action recommended against the

employee. It is equally plain that the term “modify” necessarily includes the

possibility of an increase in that disciplinary action. 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.1 See Reynolds, 34 So. 3d at 120 (agreeing that

“once misconduct has been 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.”).

      What is less clear, and what has been made less clear through the case law,

is the proper procedure to be followed once the City Manager has entered her or

his order. We seek here to clarify that issue so that the parties to all pending and

1It is understandable that if a harsher penalty is indeed imposed an employee could
conclude that she or he was unfairly punished merely for exercising her or his
appellate rights, but that is an unfortunate result of the present wording of the Code
of Ordinances which we are without authority to remedy.

                                          6
future disciplinary actions subject to Sections 40-122 and 40-124 of the City of

Miami Code of Ordinances, or their equivalents, may have a clear understanding of

their rights and remedies.

      First, it must be made plain that the City itself has no remedies following the

City Manager’s review of a disciplinary proceeding. This is so because the City

Manager is, in effect, acting as the City when she or he reviews a Civil Service

Board recommendation. No legal principle permits a party to appeal from its own

determination.2 Once the City Manager has acted, the City must simply abide by

whatever determination has been made.

      An employee subject to a disciplinary action is not, however, equally

without remedy. Once the City Manager has issued her or his order, the employee

may file an appeal with the appellate division of the circuit court. In that appeal

the employee may challenge the City Manager’s factual determinations, but not, as

just explained, the disciplinary penalty imposed by the City Manager.

2 We acknowledge that dictum in City of Miami v. Martinez-Esteve, 125 So. 3d
295 (Fla. 3d DCA 2013), indicated that the City may be able to seek review of the
Civil Service Board’s actions by way of an appeal to the circuit court’s appellate
division. We reaffirm here that any implication in Martinez-Esteve that the City
has a right to review of a Civil Service Board recommendation was dictum. The
implication therein that an independent lawsuit by an employee following a City
Manger’s review of a Civil Service Board recommendation may be appropriate
was likewise dictum. Moreover, that case did not involve factual findings and
conclusions of law by the Civil Service Board as occurred here, but instead
involved only interpretation of City policy, so its holding is inapplicable in this
context in any event.


                                         7
                                     Prior Cases

      A review of prior cases demonstrates that parties to a disciplinary

proceeding have followed a number of paths in their efforts to obtain their desired

outcome after the City Manager has acted.3         Despite the various procedures

followed in those cases, this Court set forth the proper procedure for a disciplined

employee to seek review of the City Manager’s action in Miami-Dade Cnty. v.

Moreland, 879 So. 2d 23 (Fla. 3d DCA 2004). There, following a disciplinary

action, review by the Civil Service Board and affirmance by the City Manager, the

employee filed an independent complaint for discrimination and the County

petitioned for prohibition to prevent that action from proceeding. In granting the

petition, this Court expressly stated:

             Where a civil service employee pursues civil service
             administrative remedies, the employee is precluded from

3 City of Miami v. Martinez-Estevez, 125 So. 3d 295 (Fla. 3d DCA 2013)
(complaint for declaratory relief, injunction and monetary damages by employee);
Lee Cnty. v. Harsh, 44 So. 3d 239 (Fla. 2d DCA 2010) (petition for certiorari by
employee); City of Miami v. Reynolds, 34 So. 3d 119 (Fla. 3d DCA 2010) (appeal
to circuit court by employee); Miami-Dade Cnty. v. Jones, 778 So. 2d 409 (Fla. 3d
DCA 2001) (appeal to circuit court by employee); Kee v. Miami-Dade Cnty., 760
So. 2d 1094 (Fla. 3d DCA 2000) (appeal to circuit court by employee); Town of
Surfside v. Higgenbotham, 733 So. 2d 1040, 1047 (Fla. 3d DCA 1999) (appeal to
circuit court by employee); City of Hollywood v. Fielding, 362 So. 2d 362 (Fla.
4th DCA 1978) (petition for mandamus by employee); Fitzpatrick v. City of Miami
Beach, 328 So. 2d 578 (Fla. 3d DCA 1976) (petition for certiorari by employee);
City of Miami v. White, 165 So. 2d 790 (Fla. 3d DCA 1964) (petition for certiorari
by employee); State ex re. Eldredge v. Evans, 102 So. 2d 403 (Fla. 3d DCA 1958)
(petition for mandamus by employee); City of Miami v. State ex rel. Houston, 102
So. 2d 176 (Fla. 3d DCA 1958) (petition for mandamus by employee).

                                         8
             bringing an independent action in Circuit Court to
             challenge the propriety of the [discipline]. … [O]nce the
             employee submits himself to the administrative review
             procedures provided by the Ordinance, the employee has
             been afforded a quasi-judicial hearing and is not entitled
             to a de novo hearing in Circuit Court on the claim.
             Instead, the employee must institute an appellate
             proceeding in the Circuit Court Appellate Division to
             review the adverse determination. [e.s].

Id. at 24-25 (citing Bass v. Metro Dade Cnty. Dep’t of Corr. and Rehab., 798 So.

2d 835 (Fla. 3d DCA 2001), and City of Miami Springs v. Barad, 448 So. 2d 510,

511 (Fla. 3d DCA 1983)); see also 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.”); 2 Fla. Prac., Appellate Practice § 19:9 (2016 ed.) (“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



                                          9
plenary appeal.” (e.s.)). In this case, no general statute authorizes an appeal from

the actions of the City Manager, so a disciplined employee falls within the scope of

the just-cited authorities.

       We note that the caption given to any pleading before the appellate division

is irrelevant. Rather, what is important is that the proper – and only – tribunal for

review of the City Manager’s determination of a Civil Service Board

recommendation is the appellate division of the circuit court for plenary review.4

                 City Manager’s Authority as to Factual Findings

       As indicated above, in this case the Civil Service Board found Jean-Phillipe

not guilty of the charges against him. Upon review, the City Manager concluded

that one such finding was not based on competent substantial evidence and

reversed the finding of not guilty as to that charge.5 Jean-Phillipe argues that the

City Manager lacked the authority to reverse the finding of not guilty. In essence

Jean-Phillipe argues that the City Manager had no alternative but to reinstate him

once the Civil Service Board found him not guilty. We disagree.


4 See also Art. V, 20(c)(3) Fla. Const. (“Circuit courts shall have jurisdiction of
appeals from county courts and municipal courts, except those appeals which may
be taken directly to the supreme court; and they shall have exclusive original
jurisdiction in all actions at law not cognizable by the county courts”); Fla. R. App.
P. 9.030(c)(1)(C) (articulating the circuit courts' jurisdiction over administrative
action).
5 The City Manager also imposed as discipline a 200 hour suspension, thereby
affirming the 200 hour suspension imposed by the Department.

                                         10
      We conclude that the City Manager has the authority to review the Civil

Service Board’s findings of fact to determine whether they were supported by

competent substantial evidence. However, because we are remanding for pursuit

of the proper appellate procedure in this case, we do not reach a conclusion as to

whether the City Manager properly exercised that ability in this case and we imply

no opinion on the matter.

      The powers of the City Manager with respect to findings of fact in

disciplinary actions was first addressed by this Court in State ex rel. Eldredge, 102

So. 2d 403. In that case this Court stated:

             [T]he Civil Service Board acts in the nature of a jury or
             trier of the facts. The Board determines the truth or
             falsity of the charge and makes a finding as to the guilt or
             innocence of the accused. This finding or adjudication of
             guilt or innocence is then reported to the City Manager,
             together with their recommendations, and it is then the
             prerogative and duty of the City Manager[] to pass
             judgment as the findings indicate and the circumstances
             of the case require . . . . Such recommendations may be
             followed or disregarded by the City Manager in imposing
             punishment.
                                          ....

             We do not infer by anything said here that the City
             Manager[] could disregard findings of the Civil Service
             Board of the guilt or innocence of an accused employee
             when such findings are supported by substantial
             evidence.




                                         11
Id. at 405-06; See also Town of Surfside, 733 So. 2d at 1047 (analyzing a parallel

provision and finding that “[t]he Town Manager may not disregard the findings of

fact made by the Hearing Examiner unless there is no competent substantial

evidence to support them”); Miami-Dade Cnty., 778 So. 2d 409 (examining a

parallel provision and concluding findings of fact were supported by substantial

evidence). While not expressly so stated in the foregoing cases, long precedent

dictates that with respect to the City Manager’s ability to “disregard” a Civil

Service Board’s factual finding if not supported by competent substantial evidence,

the City Manager is not permitted to re-weigh the evidence nor judge the

credibility of the witnesses.

      In a proper appeal of the City Manager’s determination, Jean-Phillipe will be

able to challenge the City Manager’s conclusion that a factual determination was

not supported by competent substantial evidence. In such an appeal, the circuit

court’s appellate division would be bound to follow the abundant case law

regarding competent substantial evidence.      See Wiggins v. Florida Dep't of

Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1171–75 (Fla. 2017), and

cases cited therein; Glaister v. Glaister, 137 So. 3d 513, 516 (Fla. 4th DCA 2014)

(“A trial court is bound by a master's factual findings and recommendations unless

they are clearly unsupported by the evidence and clearly erroneous.” (quoting

Linn v. Linn, 523 So. 2d 642, 643 (Fla. 4th DCA 1988)). The appellate court “will



                                        12
review de novo the trial court's decision that the findings of fact . . . are supported

by competent, substantial evidence and are not clearly erroneous while giving both

the magistrate and the trial court the benefit of the presumption of correctness.” In

re Drummond, 69 So. 3d 1054, 1057 (Fla. 2d DCA 2011).

      As articulated by the Florida Supreme Court in De Groot v. Sheffield, 95 So.

2d 912, 916 (Fla. 1957):

             In certiorari the reviewing court will not undertake to re-
             weigh or evaluate the evidence presented before the
             tribunal or agency whose order is under examination.
             The appellate court merely examines the record below to
             determine whether the lower tribunal had before it
             competent substantial evidence to support its findings
             and judgment which also must accord with the essential
             requirements of the law. It is clear that certiorari is in the
             nature of an appellate process. It is a method of
             obtaining review, as contrasted to a collateral assault.

             We have used the term ‘competent substantial evidence’
             advisedly. Substantial evidence has been described as
             such evidence as will establish a substantial basis of fact
             from which the fact at issue can reasonably be inferred.
             We have stated it to be such relevant evidence as a
             reasonable mind would accept as adequate to support a
             conclusion . . . . . We are of the view that the evidence
             relied upon to sustain the ultimate finding should be
             sufficiently relevant and material that a reasonable mind
             would accept it as adequate to support the conclusion
             reached.

      To dot the final “i” and cross the final “t” in this case, we explicitly state that

following a proceeding in the appellate division of the circuit court, either party to

a disciplinary action may pursue further remedy by way of second-tier petition for


                                          13
certiorari to this Court.   As always, that second-tier certiorari review will be

narrowly limited to (1) whether the lower tribunal afforded procedural due process

and (2) whether the lower tribunal applied the correct law. See Custer Med. Ctr. v.

United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010).

                                   Conclusion

      To recapitulate, a civil service employee subject to a City of Miami Code

40-122 disciplinary action may request review of the disciplinary action by the

Civil Service Board. The Civil Service Board will make its findings in writing and

will make a recommendation regarding the discipline imposed. Those findings and

recommendation will be forwarded to the City Manager who will review the

Report to determine if the factual basis of the Board’s findings are based on

substantial competent evidence and will review the Board’s disciplinary

recommendation. In reviewing the Board’s disciplinary recommendation, the City

Manager may 1) affirm; 2) reverse; or 3) modify the discipline recommended by

the Civil Service Board. The term “modify” carries with it the possibility of an

increase of whatever punishment has been recommended.            In reviewing the

findings of fact from the Civil Service Board, the City Manager may review the

record to determine if such findings are supported by competent substantial

evidence, but may not reweigh the evidence presented or judge the credibility of

witnesses. Rather, she or he is limited to determining whether some competent,



                                        14
substantial evidence was presented that would support the Civil Service Board’s

findings.

      Once the City Manager has acted, if an employee is dissatisfied with the

outcome of the City Manager’s review of the Civil Service Board’s

recommendation, that employee may petition for review before the appellate

division of the circuit court. Such review will be in the nature of a plenary appeal.

      If, after a proceeding before the appellate division of the circuit court either

party to the proceeding is dissatisfied with the outcome, that party may seek

second- tier certiorari relief from this Court, under the extremely limited review

afforded by such proceedings.

      Because the foregoing procedures were not followed in this case, we reverse

the summary judgment in favor of Jean-Phillipe and remand for a plenary appeal

before the appellate division of the circuit court.

      Reversed and remanded.




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