RICARDO NOVAS

v.

CITY OF MIAMI

as-12-*14 14144 snot- T—022 P0001/0006 t-094 I i I

NOT FINAL UNTIL TIME EXPIRES

TO FILE MOTION FOR REHEARING, AND IF FILED, DISPOSBD OF. "-" '1—4:;-.1;:r; —

IN TI-IE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR MIAMI-DADE COUNTY, I l_

FLORIDA

%l

APPELLATE DIVISION

cnsstumrsessns L LOWER oouar cnseno. “Qt I csntrazo J31 Liv» gnngginovss, % v* i gigéggnnnnn, 36% J,_o, lg,» Opinion Filed: C?%\(\{l/W)“ °Q~'0\LI An Appeal from a decision ofthe City Manager, City ofMiami. ..‘ Eli? itlill I Alice Elizabeth (“Betsy”) Warwick, for the Appellant. ' . A Q; =11 as at v John A. Grccc, Assistant City Attorney, City of Miami, for the Appelleo. ‘ . , ¢ BfimGMfiffiHM&MWWwMw%&mwmHfi@Mfi. _ ], cxJtns,J. Appellant Ricardo Novas appeals the decision of the City Manager not to reinstate him, with back pay, in his City of Miami position as a broadcast engineer. He contends that he was in a classified position and that he was laid off and was denied the protections and procedures that were due him as a classified employee. Under the City of Miami Charter §36, employees are either classified or unclassified. Unclassified positions are high-rankittg positions, including department heads and their assistants, city attorneys and their assistants, and other executive positions. Charter, [*2] “2"“‘ “=44 fill H122 Puso2;00as r-use §36(c)(l)(A-D). The classified service “shall include all positions not specifically included by this Charter in the unclassified service.” §36(c)(2). In other words, everyone not listed as unclassified is a classified employee. Classified employees, under Charter §36(t)(l), at scq., are entitled to certain protections, including: The right not to be laid off or otherwise removed from the service without “just cause”; - The right to a written statement of reasons within 5 days upon being laid off and the right to a reasonable time for answering such reasons in writing, with the effective date of the layoff being the date that such written statement is furnished by the employee; c The right to a hearing before the Civil Service Board to determine the reasonableness of the adverse employment action; The right to have the ernployee’s seniority score calculated to ensure that only the employees with the least seniority are laid off; Civil Service Rule 12.i(c)', l The right not to be laid off if there are temporary or probationary employees who should be laid off first; Civil Service Rule 12.1; ¢ “roll back rights,” which means the right to be rolled back to a previous classified rank if you are laid off from an unclassified position; Civil Service Rule 8.13. Grievances concerning layoffs or firings are heard by the Civil Service Board, which acts in a quasi-judicial capacity. It hears testimony from witnesses, then makes findings of fact. _ Appellant Novas was first employed by the Appellee City of Miami in 2003 as a chief oornmunications engineer in the Office of Communications. In 2006, he was appointed to the position of Broadcast Engineer, a classified position. He held permanent civil service status as of April 2007. Such status confers a protected property interest in the classified service. He was responsible for the City’s cable TV station, Channel 77; which was a highly technical position. Novas was the onlybroadcast engineer employed by the City. In November 2010, Mr. Novas‘ wife, Sandra Carballosa, was employed in the Office of Cornrnunlcations as an administrative assistant. At that time, the TV component of the Office of Communications split off and became the “Office of Audio Visual and Broadcast Operations" in the Department of General Services Administration; the public relations component remained the “Office of Communications". The TV component, along with Mr. Novas, moved to City Hall. Also, the City brought in a new Director of the Office of Communications, Angel Zayon. '2- [*3] l2—’lti 14:4 [1 — 4 FR ii T-022

PUBUSXQUUE

Mr. Novas and his wife never had any disciplinary or performance issues at work. Nevertheless, Mr. Zayon wanted Mr. Novas’ position as broadcast engineer eliminated, possibly so he could fill the position with someone of his own choosing. He consult-ed with the HR department, and was informed that Mr. Novas was in a classified Civil Service position, and that there was no legitimate reason to eliminate the position. Possibly in an attempt to create a reason, in January 2011, Mr. Zayon accused both Mr. Novas and his wife of stealing, accusations which proved baseless. In another incident, Mr. Novas played a DVD given to him to play by a department head. The DVD proved offensive to the City Administration, and the Mayor-’s office quizzed him about why the tape was played. V On September 26, 2011 Mr. Novas received a letter from Assistant City Manager Luis Cabrera which advised him that his position was being eliminated and that he was being laid off that veryday. He had received no prior notice, no statement of reasons and no opportunity to respond. Subsequently, the City merged the Oftice of Audiofilisuai and Broadcast Operations back into the Office Comrnunications, with Mr. Zayon in control. Then, the City created a new position of “Communications Technical Operator” with duties very similar to those that had been performed by Mr. Novas. The City called this position “unclassified” although, under the City’s charter, it would appear to be classified. The position was not offered to Mr. Novas. The City did place his name on a “layoff register” for a broadcast engineer position, the same position that had been abolished. Mr. Novas requested a hearing before the Civil Service Board to contest his dismissal. The hearing was held on November 27, 2012. Six witnesses testitied. One was Ms. Carbellosa, Mr. Novas‘ wife, who testified about Mr. Zayon’s intent to eliminate her husband’s position, and who had accused them of stealing. Aiso testifying was Jessica Pacheco, former assistant director of human resources, who had advised Mr. Zayon that he could not eliminate Mr. Novas, as he was in a Civil Service position, just so he could replace him with someone else. She further testified that he was dissatisfied with her answer, so she asked a senior labor attorney in HR to look at Mr. Novas’ position for a determination. That attorney also concluded that Mr. Novas was in a protected Civil Service position. However, Ms. Pacheco was never told that Mr. Novas’ position allegedly was being eliminated for budgetary reasons, as site herself was terminated by the City for budgetary reasons four months before Mr. Novas was terminated. f- 94 3. iii ' l ._,..q_-‘L-...._ .-_<. r. l ! [*4] - 2-‘ti 14=4'I> time r-022 rooonooss t-094 The City’s Budget Director; Daniel Alfonso, testified that Mr. Novas’ position was eliminated for budgetary reasons. The City had to eliminate $600,000 from the budget, a shortfall in the budget that was anticipated before the final City Commission hearing. Twelve positions were eliminated in addition to Mr. Novas’. Appellant contends that his dismissal was not budget-related because the budget exhibits introduced into evidence showed that Mr. Novas was dismissed four days prior to the budget shortfall being determined at a final budget hearing. Mr. Novas was dismissed on September 23, 2011, and the final budget was approved on September 27, 2011. Adclitiottally, the City’s Compensation Supervisor, Ricardo Martinez, testified that the City Manager can “abolish a position for any reason whatsoever." Neither Angel Zayon nor Luis Cabrera (Assistant City Manager) showed up to testify, despite having been subpoenaed. At the conclusion of the hearing, the Board Vflifltl 4-i to reinstate M¹¹ Haines City Comrnttnlty Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Here, there was a full hearing with due process before the Civil Service Board. There was substantial competent evidence to support the findings ofthe Board and their decision observed the essential requirements of law. The City Manager was wrong to reject the lawful findings and recommendations of the Board. While the City Manager is the chief administrator of the City, his power is not limitless. The City Manager, who had rejected the findings and recommendations of the Civil Service Board, has certain duties and powers under the City Charter: (b) Appoint and remove, except as otherwise provided in this Chatter, all directors of the departments and all subordinate officers and employees in the departments in both the classified and unclassified service; all appointments to be [*5] ~ 2514 14:45 i‘R[lii- F022 Pill?U5fUllUii F-0913 upon merit and fitness alone, and in the classified service all appointments and removals to be subject to tl1e civil service provisions ofthis Charter. Sec. 16(1)). Accordingly, there was no basis under the Charter for the City Manager to remove Mr. Novas from his position. There were no‘ indications in his employment history that would warrant his removal on the basis ofmerit and fitness alone. Additionally, the removal was not done pursuant to the provisions of the civil service regulations. The City Manager’s memo designating the assistant City Manager, Luis Cabrera, as the person with authority to handle employment matters, including terminations, does not remedy the legal shortfalis. Specifically, the City failcdto comply with the Civil Service roles by not providing Mr. Novas with a written statement of the reasons why he was being removed from employment. Further, he had no opportunity to respond to any allegations prior to his dismissal. Despite being a permanent employee, he was laid off and permanent employees are required to he the last to be laid off after emergency, temporary or probationary employees are laid off under the rules. There was no “just cause” for the layoff. Civil Service rules and regulations are codified as ordinances; see Code Section 40-92 (Rule 12). Compliance with Civil Service provisions is mandatory; see Stare v. Markle, 142 So. 822 (Fla. 1932). Placing his name on a layoff register for 36 months does not cure the problem if the position he is qualified for is permanently eliminated. In Blooriworth v. ex rel Beck, 190 So. S03 (Fla. 1939), the Florida Supreme Court said that a civil service employee should have been compared to all other employees doing jobs similar to the employee’s in the entire Department, not just in his division. Here, Mr. Novas was part of the General Services Administration Department, which had over 130 employees. The City should have been able to compare him or group him with others with similar skills for purposes of seniority. Grouping employees with similar duties into “classes” of positions is the basis ofthe civil service system. Creating a class with only one employee in it, then denying that employee civil service protections, is not the legal course of action- Ali positions in the City of Miami that are not specifically listed as “unclassified” in the City Charter are, as a matter of law, “classiiied” positions. See City ofMiami v. Martinez- Esteve, 125 So. 3d 295 (Fla. 3d DCA 2013). As such, we reverse the decision of the City Manager and reinstate the findings and recommendations of the Civil Service Board, which [*6] 93-12-’14 14:46 FR@h\- T-E122 P0003/T1033 F-094 . . - ' I ‘ recommended rcmstatmg the Appellate cffectnve September 23, Z011 with 531114 P9»? and 01 1°‘ benefits fillly restomd. JUDGES FREEMAN and ARZOLA concur. ‘R. <=§;~*’¢£m§E§ Fmmwmzb W _\(r1*1fi;P>.rs§§.&. 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