CORNELIUS SHIVER

v.

CITY OF MIAMI SOUTHEAST OVERTOWN PARKWEST COMMUNITY REDEVELOPMENT AGENCY

On November 18, 2021, Petitioner, Cornelius Shiver ("Petitioner"), appeared before the Board of Commissioners of the City of Miami Southeast Overtown/Parkwest Community Redevelopment Agency (the "Board"). Petitioner had served as the Executive Director of the Community Redevelopment Agency ("CRA") for approximately four years and now the Board was being asked, by one of its own members, to approve a separation package that would afford Petitioner three months' pay, plus two and a half weeks of his unused sick time. Petitioner expressly stated these terms were "mutually agreed" upon. Sometime thereafter, the Board discovered that, rather than provide payment for two and a half weeks, the written agreement provided for all unused sick leave. As a result, on February 7, 2022, the Board passed Resolution No. CRA-R-22-0006 (the "Resolution"),¹ wherein it clarified that it had only previously approved the mutually agreed upon terms of three months' pay, plus two and a half weeks of unused sick leave. Petitioner now contends that this clarification deprived him of some contractual right to [*3] all of his unused sick leave. This Court does not reach the merits of the Petition, because this Court lacks jurisdiction over the Board's quasiexecutive acts.

Florida courts have long held that a challenge to a board's quasiexecutive actions must be brought as an original action in circuit court. See, e.g., Lee County v. Harsh, 44 So. 3d 239 (Fla. 2d DCA 2010) (certiorari relief is not available for executive decisions); see also Bd. Of Cnty. Comm'rs of Hillsborough Cnty. v. Casa Dev. Ltd., II, 332 So. 2d 651, 654 (Fla. 2d DCA 1976).

Notwithstanding Petitioner's statement that the terms of the separation agreement were "mutually agreed" upon, and that the terms approved by the Board were unambiguously "three months and two and a half weeks of sick time," Petitioner contends the Board's subsequent Resolution, which merely clarified that the Board had only approved those "mutually agreed" upon terms, amounted to a quasi-judicial proceeding over which this Court has jurisdiction. Appellant's argument is unpersuasive.

The Third District Court of Appeal (the "Third DCA") recently had occasion to address the nature of quasi-judicial actions. See Miami-Dade [*4] County v. City of Miami, 315 So. 3d 115 (Fla. 3d DCA 2020). In Miami- Dade County, the Third DCA examined four characteristics of quasijudicial decisions. Id. at 120. Specifically, the Third DCA noted, (1) quasi-judicial action results in the application of a general rule of policy....;

(2) a quasi-judicial decision has an impact on a limited number of persons or property owners and on identifiable parties and interests....;2 (3) a quasi-judicial decision is contingent on facts arrived at from distinct alternatives presented a hearing....; and (4) a quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation to past transactions....

Id. (citing D.R. Horton, Inc.-Jacksonville v. Peyton, 959 So. 2d 390, 398-99 (Fla. 1st DCA 2007)).³ Additionally, the Florida Supreme Court has long held that "purely administrative determination [s] without hearing or adversary evidence," for which "statutory notice" is not [*5] required, are simply not quasi-judicial determinations. See Teston v. City of Tampa, 143 So. 2d 473, 476 (Fla. 1962).

In this case, Petitioner appeared before the Board on November 18, 2021. Petitioner had no matter on the agenda that day. Instead, Board Member King called up "an item to the agenda" as an add-on. Specifically, Board Member King, stated, And if I may add an item to the agenda. You have been given a separation package for the executive director, [Petitioner]. I'd like to thank him for his service. And for your review is his separation package, and I'd like for you to approve that.

Minutes of November 18, 2021 Meeting, Respondent's Appx. A at 2.4 What followed was not a quasi-judicial proceeding. There was no application of a general rule of policy. There was no decision contingent on the finding of any fact presented at the hearing. The Board did not act as fact-finder, nor did it determine the rules of law applicable to Petitioner's termination, or the rights affected by said rules of law. The Board's determination, such as it was, was purely executive-should it, in its unbridled discretion, approve a separation package to which [*6] Petitioner had no legal entitlement.⁵ To that end, Petitioner and the Board engaged in the following exchange, Vice Chair Diaz de la Portilla: What's the amount? Board Member King: The terms are three months and two and a half weeks of sick pay. Vice Chair Diaz de la Portilla: So moved. Board Member Reyes: Second. And it has been mutually agreed, right? [Petitioner]: Mutually agreed, yes.

...

Board Member King: He's going to be paid three months and two and half weeks of sick time.

...

[Petitioner]: ...I am in agreement with it because this is the right thing to do, the right time for the right Commissioner. Vice Chair Diaz de la Portilla: Because you believe that we have a new chairman of the CRA, that the [*7] Commissioner or the new chairman has the right to pick their own executive director and their own staff, correct? [Petitioner]: I'll go beyond that. I'm from the old school...And SO I truly believe-and I articulated this to the newly elected Commissioner-that she-like any of youhave a 100 percent right to work with any executive director that you feel comfortable with.

Board Member Carollo: How many years have you worked as the executive director? [Petitioner]: I think it's about four years.

...

Board Member Carollo: So about four years. So what we're giving you is about a month for each of those four years if we included the unused sick leave.

Id. at 2-6 (cleaned up) (emphasis added).

On February 7, 2022, Petitioner's separation package was, once again, before the Board. This time, the Board was informed that Petitioner's unused sick leave was not, in fact, the two and a half weeks that were mutually agreed to, but was, instead, "in the range of 550 or 560 hours." The Board then engaged in a lengthy dialogue concerning [*8] the terms it had already approved. Specifically, the Board members stated, in part, Board Member Reyes: Let me once again, what did we pass, two and a half weeks? If there is a discrepancy now because when it was writtenand I know-you know that I am-I love [Petitioner] and I'm a friend of his and all of that. But I don't think we should be arguing this here. In all fairness, what we passed was two and a half weeks. You should pay that, and if he has proof that it's something else, go to court.

...

[Petitioner]: ... Now what happened and I will admit to you, Commissioner Carollo-that when the item was presented to the Board, there was a misrepresentation that the unused sick time was two and a half weeks, but that didn't come from me.

...

Chair King: ... And if you had given me the courtesy of speaking to me or the executive director, it would have clarified that there was a mistake, and we are not in any way trying to rescind the agreement. We are only trying to clarify that what was presented was two and a half weeks of sick time pay. That is the motion on the floor. All in favor?

...

Board Member Reyes: ...the motion as I understood is that there was an agreement- [*9] Chair King: Yes, for two and a half- Board Member Reyes: --and we're going to stick to that agreement. And if there's any discrepancy, it should be taken to another court, another place.

Minutes of February 7, 2022 Meeting, Petitioner's Appx. Ex.E (cleaned up).

Nothing about either meeting would tend to indicate that they were quasi-judicial in nature. This is particularly true for the February 7, 2022 meeting, where the Board, rather than weigh alternatives contingent on the finding of some fact or apply any laws or general rules of policy, simply reaffirmed the terms it had previously approved. Far from being a quasi-judicial proceeding, it does not appear that the Resolution is even a modification of the written separation agreement. In fact, at least one Board member made it abundantly clear that the Board was merely reaffirming what it had previously approved and that if Petitioner wanted to enforce any additional rights, he could seek relief from the courts. See id. The Board's Resolution, reaffirming the exact previously approved and mutually agreed upon terms, does not convert the Board's initial approval, or even the clarification itself, into a quasijudicial act. [*10] Petitioner has not otherwise persuaded this Court that one or both of these proceedings were quasi-judicial in nature. First, Petitioner has not cited to any statute that requires notice and/or an evidentiary hearing before the Board may determine whether to approve, clarify or even breach, a separation agreement. See Teston v. City of Tampa, 143 So. 2d at 476. In fact, it does not appear that any such notice or evidentiary hearing is required by statute. See § 163.356(3)(d), Fla. Stat. (providing for notice and hearing prior to the removal of commissioners, but saying nothing of executive directors). If the legislature wanted to require that a quasi-judicial proceeding be conducted prior to an executive director's removal or the award of a separation package, it could have enacted appropriate legislation.

Second, it is of no consequence that the February 7, 2022 meeting was publicly held. Most board meetings are noticed and publicly held. Indeed, nearly fifty years ago, the Florida Supreme Court stated, Every meeting of any board, commission, agency or authority of a municipality should be a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the municipality...Government, more so now than ever before, should be responsive to the [*11] wishes of the public. These wishes could never be known in nonpublic meetings, and the governmental agencies would be deprived of the benefit of suggestions and ideas which may be advanced by the knowledgeable public. Also, such open meetings instill confidence in government. The taxpayer deserves an opportunity to express his views and have them considered in the decision-making process.

Town of Palm Beach v. Gradison, 296 So. 2d 473, 475 (Fla. 1974). The mere fact that the Board took up the Resolution on February 7, 2023 at a public hearing does not, standing alone, convert a quasi-executive action into a quasi-judicial proceeding.

In summary, if Petitioner believes the written agreement entitles him to any additional unused sick leave, then he can file an action in the Circuit Civil Division. The Board will then have an opportunity to assert any affirmative defenses it wishes to raise. Petitioner should not, however, through the filing of a writ of certiorari, be permitted to effectively foreclose Respondent from asserting its affirmative defenses concerning the approval and/or formation of the written separation agreement. [*12] For the aforementioned reasons, this Court lacks jurisdiction over the Board's quasi-executive actions. Accordingly, the Writ of Certiorari is DISMISSED.

TRAWICK, J., CONCURS.

I agree that the Respondent's decision here is an executive rather than a quasi-judicial decision. We therefore lack jurisdiction to entertain this petition. However, if the Court did have jurisdiction, I agree with the dissent for the reasons stated therein. When the Respondent changed the terms of Petitioner's severance agreement, the Respondent failed to observe the essential requirements of law, and further, the Respondent's decision was unsupported by substantial competent evidence.

SANTOVENIA, J., DISSENTS.

I respectfully dissent and disagree with the majority's opinion that this Court lacks jurisdiction to entertain the Petition. The Petition seeks a writ of certiorari directed to the CRA to quash Resolution No. CRA-R- 22-0006 of the CRA, approved by the Board. The matter below is properly resolved by a writ of certiorari as it is a quasi-judicial, and not an [*13] executive matter. The Florida Supreme Court has listed four characteristics of a quasi-judicial decision:

1. Quasi-judicial action results in the application of a general rule of policy, whereas legislative action formulates policy;
2. A quasi-judicial decision has an impact on a limited number of persons or property owners and no identifiable parties and interests, while a legislative action is open-ended and affects a broad class of individuals or situations;
3. A quasi-judicial decision is contingent on facts arrived at from distinct alternatives presented at a hearing, while a legislative action requires no basis in fact finding at a hearing; and
4. A quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation to past transactions, while a legislative act prescribes what the rule or requirement shall be with respect to future acts.

D.R. Horton, Inc. – Jacksonville v. Payton, 959 So. 2d 390, 398-99 (Fla. 1st DCA 2007) (citing Bd. of Cnty. Comm'rs of Brevard Cnty. v. Snyder, 627 So. 2d 459, 474 (Fla. 1993)).

Applying the first factor, the Board's decision did not adopt an ordinance or rule of general application. Instead, the Board reviewed the Agreement's provision that Petitioner should be compensated for his unused sick time at 100 percent, and altered the amount of sick time to two and one-half weeks. Applying the second factor, the Board's vote on the Agreement had an impact on a limited number of persons it impacted only the Petitioner. Applying the third factor, the decision of [*14] the Board was based on the vote at the Board hearing, and the Board briefly also heard from Petitioner. There were minutes of the February 7, 2022, Board meeting, and thus a record for the Court to review. Petitioner is correct that there was notice of the Board meeting, as he submitted an affidavit prior to the meeting. Applying the fourth factor, the vote on Petitioner's sick time did not prescribe a rule or requirement with respect to future acts.

I also note that Petitioner correctly argues in his Response to Respondent's Motion to Dismiss that under §163.340(1), Fla. Stat., the CRA is a public agency. Notably, the Agreement signed by Petitioner states that any modification to the Agreement will require a public hearing. That portion of the Agreement provides:

Amendment. This Agreement may not be modified, alerted, or changed except upon express written consent of both Parties wherein specific reference is made to this Agreement. Any modification of the Agreement must be by written instrument signed by all Parties. Any modification, alteration, or change will require a public hearing of the Board of Commissioners of the CRA. (Pet. App., Exh. C, Section 12) (emphasis added). That contractual provision requires not just a hearing of the Board of Commissioners of [*15] the CRA with a quorum present, but a public hearing. Moreover, a public hearing is no less public because the Petitioner's presentation was scheduled as part of the two-minute public comment period permitted by the Board.

"[W]hen notice and a hearing are required and the judgment of the board is contingent on the showing made at the hearing, then its judgment becomes judicial or quasi-judicial as distinguished from being purely executive." Miami-Dade Cty. v. City of Miami, 315 So. 3d 115, 121 (Fla. 3d DCA 2020) (citing DeGroot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957)). See also Anoll v. Pomerance, 363 So. 2d 329, 331 (Fla. 1978) ("[A] judgment becomes judicial or quasi-judicial, as distinguished from executive, when notice and hearing are required and the judgment of the board is contingent on the showing made at the hearing."). "While certiorari relief is available for quasi-judicial decisions, it is not available for executive decisions because, as a practical matter, when an executive makes a decision without conducting a hearing, there is nothing for the circuit court to review." Lee Cnty. v. Harsh, 44 So. 3d 239, 242 (Fla. 2d DCA 2010). [*16] At the November 18, 2021 CRA meeting, Board member Christine King added to the agenda the discussion regarding the separation package for Mr. Shiver. Ms. King also opened the floor for public comment and asked if anyone would like to speak on the item. At the February 7, 2022 CRA meeting, the issue of Mr. Shiver's separation from the Board was on the agenda. Mr. Shiver spoke for two minutes, and Chairman King noted that after two minutes, his time was up. Thus, there was a second public hearing on the matter. Curiously, the City argues that "the resolution that Petitioner seeks to challenge in this appellate proceeding was an executive decision by the CRA Board that it did not need to enter in the first place" and that Petitioner was not entitled to a hearing. Response Brief at p. 19. This argument wholly ignores that the Agreement requires a public hearing for "[a]ny modification, alteration, or change" to the Agreement.

Moreover, the City's position begs the question as to why there were two public hearings to address Mr. Shiver's contract and the City contractually bound itself in the Agreement to a public hearing of the Board of Commissioners of the CRA to address any modifications of the Agreement - all allegedly unnecessary - if executive action were in fact [*17] involved. Indeed, many employment decisions are executive in nature and are never the subject of a public hearing. Those decisions are usually made entirely by the city manager without being reviewed by the city's governing body at a public hearing. There is nothing for an appellate court to review in those scenarios. However, this is clearly not one of those decisions. Based on the factors outlined above, along with an examination of the record and case law, I conclude that this matter is quasi-judicial and that this court has jurisdiction to address the merits of the petition for writ of certiorari.

Standard of Review

This court reviews the Board's decision to ensure that the Board afforded due process, that the decision is supported by competent substantial evidence, and that the decision complies with the essential requirements of law. City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982). Petitioner asserts that none of these prongs of the standard of review were met. I agree with Petitioner that the essential requirements of the law and competent substantial evidence prongs were not met. [*18] Essential Requirements of law In Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (citation omitted), the Supreme Court, in considering whether the essential requirements of the law were observed, held that "appl[ying] the correct law" is synonymous with "observing the essential requirements of law." Overlooking sources of established law or applying an incorrect analysis of the law results in a departure from the essential requirements of law. See City of Tampa v. City Nat'l Bank of Fla., 974 So. 2d 408, 411 (Fla. 2d DCA 2007).

The Petitioner argues that the Board's decision to reduce his payout for unused sick leave was a material breach of the Agreement. This argument is properly considered under the rubric of whether the Board followed the essential requirements of the law.

Settlement agreements are contractual in nature and are therefore interpreted pursuant to and governed by contract law. Com. Cap Res., LLC v. Giovannetti, 955 So. 2d 1151, 1153 (Fla. 3d DCA 2007). As Petitioner never agreed to the material change to his unused sick time, Petitioner correctly maintains that the change to two and one-half weeks is a violation of the Agreement. Petitioner argues that the language in [*19] the Agreement is clear, unambiguous, and susceptible of only one interpretation, which is that the Board authorized and approved the severance pay to include 100% of Petitioner's unused sick leave. Also, I find that the language in the agreement is clear that "the Agreement may not be modified, altered, or changed except upon express written consent of both parties ..." I find that the Board did not observe the essential requirements of law based on the quoted term in the Agreement.

Due Process

The Third District Court of Appeal has held that "quasi-judicial proceedings are not controlled by strict rules of evidence and procedure." Jennings v. Dade Cty., 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). However, certain standards of basic fairness must be followed in order to afford due process. Id. "A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard." Id.

Petitioner argues that the Board violated his due process rights when it decided to reduce his severance pay without considering any of the evidence submitted at the February 7, 2022 hearing. Petitioner submitted an affidavit which stated that he was entitled to receive 100% [*20] of his earned, unused sick time, and that the Agreement was never negotiated in hours, days, or weeks, but only in percentages. As Petitioner was given notice of the meeting and was able to speak during the meeting, I find that Petitioner's argument that he was deprived of due process is without merit.

Competent substantial evidence Competent substantial evidence has been defined as "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." Smith v. Dep't of Health & Rehab. Servs., 555 So. 2d 1254, 1255 (Fla. 3d DCA 1989) (citation omitted). The test is whether there exists any competent substantial evidence to support the decision maker's conclusion, and any evidence which would support a contrary conclusion is irrelevant. See Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm'rs., 794 So. 2d 1270, 1276 (Fla. 2001).

Quasi-judicial decisions must be based on evidence submitted at the hearing, and the administrative officers, boards, or commissioners cannot base their decision on their own information. Miami-Dade Cty. v. City of Miami, supra., 315 So. 3d at 126. Petitioner contends that the Board's decision is not supported by competent substantial evidence. I [*21] agree. The only evidence addressing a reduction of the sick time payout was an inter-office memorandum which discussed that there was a dispute as to the proper amount of sick time due to the Petitioner.⁶ The only substantial competent evidence was the Agreement submitted by the Petitioner, and that evidenced the payout of 100% of unused sick time. Nothing presented at the hearing supported the award of two and one-half weeks of sick time. The testimony and the affidavit of Petitioner were unrebutted. While Petitioner did not verbally challenge the Board about the two and one-half weeks of payment, silence does not equate to consent to alter the terms of an Agreement that "may not be modified, alerted, or changed except upon express written consent of both Parties...". Accordingly, I find that there was a lack of competent substantial evidence in the record to support the Board's decision.

[*22] For the foregoing reasons, I respectfully dissent and would grant the Petition, quashing Resolution No. CRA-R-22-0006 in its entirety.