XIAO-WEN MICHELLE CHOI

v.

CITY OF MIAMI

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

PER CURIAM

[*1] Petitioner, Xiao-Wen Michelle Choi, petitions for a writ of certiorari to quash the final decision by the City Manager sustaining her demotion from her position as the Finance Manager of the City of Miami Police Department. The City Manager implemented the demotion based upon the Civil Service Board's finding of just cause following quasi-judicial proceedings.

We have jurisdiction to review this final decision. See Art. V, Sec. 5, Fla. Const.; City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).

Background

Petitioner was the Police Budget and Finance Manager for the City of Miami Police Department. When Ronald Papier was first promoted to Deputy Chief of Police on October 6, 2020, he began supervising Ms. Choi.

Approximately 13 months later, he issued a memorandum demoting her to her prior position at the Parks Department. He demoted her for two reasons: (1) her inability to perform her essential job function and (2) her lack of leadership. Specifically, in his [*2] memorandum detailing the reasons for the demotion, Deputy Chief Papier cited the following factual bases:

Inability to Perform Essential Job Functions

1. Ms. Choi failed to respond to requests from the Finance

Department detailing potential reimbursements from FEMA for a fence and substation damaged during Hurricane Irma.

2. Related to the FEMA reimbursement, Ms. Choi told payroll

clerk Janeisy Aracena to ignore a directive to enter PATEO information to facilitate FEMA reimbursements. Failure to enter this information resulted in delay and additional work to reconcile entered records.

3. In July 2017, Ms. Choi reported a budget surplus of

$900,000 when in fact the police department was facing a shortfall. Deputy Chief approved purchase orders based on the erroneous belief that there was a surplus.

4. Ms. Choi approved an unnecessary payment for a $7,000 refrigerator in a cafeteria space, when in fact the vendor contract required the vendor to pay for the purchase.

5. In June 2017, Ms. Choi misallocated $233,000 of a federal grant for the purchase and implementation of a Body Worn Camera program, leaving elements of the implementation of the program unfunded.

6. The Office of Management and Budget identified and

documented deficiencies in Ms. Choi's work output.

Lack of Leadership

Deputy Chief Papier identified the following lapses in Ms. Choi's leadership performance: [*3] 1. Ms. Choi is unwilling to supervise sworn officers who carry firearms. Her role requires her to supervise employees who are sworn officers who carry guns. Ms. Choi is afraid of people with guns.

2. Several of Ms. Choi's employees have chosen to transfer to different assignments, quit or roll back (choose demotion), citing Ms. Choi's toxic work environment as the primary reason for their decision.

(DE 74 at Tab 4, App. 20) Pursuant to the City of Miami's ordinances, Choi demanded review of her demotion before the Civil Service Board. Following multiple quasi-judicial evidentiary hearings that spanned more than a year, the Civil Service Board upheld the demotion, and the City Manager implemented the demotion with a final order. The following evidence was presented to the Civil Service Board on Deputy Chief Papier's findings in his memorandum justifying demoting Choi.

A. Inability to Perform Essential Job Functions

1. Choi failed to respond to requests from the Finance

Department detailing potential reimbursements from FEMA for a fence and substation damaged during Hurricane Irma.

Choi was the Budget and Finance Director. The Police Department sustained physical damage following Hurricane Irma for which it [*4] was seeking reimbursement from FEMA. Major Armando Aguilar was assigned at the time as the Major for personnel resource management. Prior to a meeting to scope the extent of the recovery for submission of a claim to FEMA, an October 23, 2017 meeting took place to "clear up any questions or concerns we had regarding what was reimbursable, what was not, what documentation was needed and to just really begin that process to get the reimbursement that the city was due." The meeting was important - every section commander was present. Major Aguilar testified that getting "every single dollar that we could get in reimbursable funds [was] important."

He recounted that it was difficult to get information from Choi on the extent of damage to a fence and radio antenna. Deputy Chief Papier specifically requested this information from her. On October 23, she told Major Aguilar that she had already provided that information to the finance department. The next day, it was discovered she had not relayed that information. On October 25, 2017, Major Aguilar asked her at a meeting to comment on amounts for the fence and antenna. In response, she looked confused and [*5] appeared to know nothing about it. Similarly, she could not respond to a request for information about damage to a substation.

Choi testified and argued that it was not her job to know whether the Police Department sustained damage and what such damages cost. Other personnel who operate facilities should have been more appropriately tasked to determine this information. Major Aguilar testified that while facilities manager Angel Blanco would have had better knowledge of the actual costs, "[t]he issue is not inthe-weeds knowledge of how much money each item costs. It was just a lack of awareness of the issues as a whole to where two department directors, the finance department director and the police chief had to get involved." Contrary to Choi's arguments, it was reasonable for Deputy Chief Papier and the Civil Service Board to conclude that with two department directors asking Choi for this information, and with an important meeting with FEMA coming up, she should have obtained the information.

Major Aguilar testified that Choi would not be the person who estimated the damage or obtained a quote for damages. Rather, "we're looking more at yes, no questions. We got to fix a fence or [*6] don't we" and "we need to ensure we get our money."

There was competent substantial evidence presented to support this finding.

2. Related to the FEMA reimbursement, Choi told payroll

clerk Janeisy Aracena to ignore a directive to enter PATEO information to facilitate FEMA reimbursements. Failure to enter this information resulted in delay and additional work to reconcile entered records.

There was no evidence presented at the hearings to substantiate this allegation.

3. In July 2017, Ms. Choi reported a budget surplus of

$900,000 when in fact the police department was facing a shortfall. Deputy Chief approved purchase orders based on the erroneous belief that there was a surplus.

Deputy Chief Papier testified that in July 2017, Choi reported a budget surplus of $900,000 when in fact the police department was facing a shortfall. Deputy Chief Papier approved purchase orders based on the erroneous belief that there was a surplus. Deputy Chief Papier testified that he relied upon Choi's projection of a surplus to sign purchase orders amounting to the projected amount of the budget. However, according to Deputy Chief Papier, there was no surplus, and all of his purchase orders were canceled because there [*7] was insufficient money in the budget to pay for the items. Deputy Chief Papier chalked this error up to a mistake on Choi's part.

In fact, all relevant witnesses testified there was a projected surplus, that this was not a mistake, and that existing spending was based upon the projected surplus. Deputy Chief Papier's excess purchase orders surpassed available funds, which was not Budget Director Choi's fault.

There was insufficient competent substantial evidence to support this finding.

4. Choi approved an unnecessary payment for a $7,000 refrigerator in a cafeteria space, when in fact the vendor contract required the vendor to pay for the purchase.

Deputy Chief Papier testified that Choi signed a purchase order for a $7,000 refrigerator for the cafeteria. He challenged this purchase on the ground that the contract required the vendor to make this purchase, not the Department. Choi insisted that it was the Police Department's responsibility. Deputy Chief Papier checked the contract and confirmed the vendor's responsibility for the purchase. Deputy Chief Papier testified this episode proved Choi's unfamiliarity with reading contracts. [*8] While the Department never paid the cost of the refrigerator and never paid a restocking fee, there was competent substantial evidence that Choi made the alleged error. 5. In June 2017, Choi misallocated $233,000 of a federal grant for the purchase and implementation of a Body Worn Camera program, leaving elements of the implementation of the program unfunded.

Much of the evidence presented at the multiple evidentiary hearings pertained to the allegation that Choi was responsible for an excess purchase order to buy additional ethernet equipment to support a federal grant for body worn cameras for its officers. Only $25,000 was allocated under the grant for the supportive ethernet portion. Choi approved a purchase order for $233,000, which required a reconciliation process to account for the excess $208,000 to avoid problems with this federal grant.

Unbeknownst to Choi, after the body worn camera grant was approved, the program was increased from 4 to 12 locations, thus requiring increased camera equipment and the need for additional ethernet. Choi was not privy to any of the details of the grant, as she was never included in any of the department meetings about the [*9] grant. Her direct subordinate, Blanca Joseph, signed off on the purchase order. Joseph testified that Choi asked her to sign off on the grant, which she had never had to do before.

There was a great deal of conflicting testimony on this point - including whether Joseph as Grant Manager had direct responsibility to ensure whether the request for funds was in line with the grant and whether Joseph had access to Oracle, the computerized budget system (Joseph claims she had no access, while Michelle Choi claims that she did).

Despite the conflict in the evidence, it was uncontroverted that Choi was kept out of the loop. She was not told that the project was being expanded to 12 locations requiring concomitant increases in ethernet purchases. She was not included in the meetings. She relied upon her subordinate. We conclude that there was insufficient competent substantial evidence to sustain this finding by the Board.

6. The Office of Management and Budget identified and

documented deficiencies in Choi's work output.

There was ample evidence presented at the hearings of deficiencies identified by the Office of Management and Budget. Chris [*10] Rose, the Budget Director for the City of Miami, testified at length in support of this finding. As to whether Choi's budget responsibilities were carried out timely, Rose testified that there were times when Choi was late. Her tardiness frustrated the budget coordinator. As a result of her tardiness, the budget coordinator had to do Choi's work. Lateness also caused delays in the budget process, requiring the reconciliation of information after key meetings. Rose testified:

If there are things that are undone coming into that meeting, then yeah. It does present I can't think of a better word than drama but the things that are unknown coming into the meeting that really ought to be known. So a lot of times we'd have to schedule another meeting and come back and rehash through some of the things we really would have liked to have gotten done in the first meeting.

As for Choi's budget reasoning, sometimes it was adequate, other times not. Regarding budget efficiency, Rose testified "[a]gain, there were times when Choi did exactly what was necessary and there were other times when it came up short."

By comparison, Rose testified that Choi's successor has exceeded all expectations. The budget process went much smoother after she left the position. Under Choi, there were more complaints than in [*11] prior years.

B. Lack of Leadership

1. Choi is unwilling to supervise sworn officers who

carry firearms. Her role requires her to supervise employees who are sworn officers who carry guns. Ms. Choi is afraid of people with guns.

The record was replete with competent substantial evidence that Choi was uncomfortable supervising sworn officers. Under the structure of the Police Department, while Choi was a civilian employee, she was in the position of a commander, and thus was required to supervise sworn officers. Deputy Chief Papier testified that Choi was uncomfortable supervising subordinates who carried guns. He also testified that Choi expressed her fear of guns.

Major Aguilar likewise testified that Choi was intimidated by subordinates with weapons. He testified that on several occasions, Choi requested that another Major be required to supervise her unit.

This record supports a conclusion that it was not feasible or practical for someone with Choi's trepidation toward firearms to work in her assigned role within the police department, since the environment abounds with armed personnel. [*12] 2. Several of Choi's employees have chosen to transfer to different assignments, quit or roll back (choose demotion), citing Ms. Choi's toxic work environment as the primary reason for their decision.

Choi's lawyer complained throughout the proceedings that all of the evidence presented at the hearing in support of this finding was hearsay and therefore incompetent evidence. Several witnesses testified that Choi's staff members chose to roll back or voluntarily seek demotion to another unit rather than continue to work in Choi's unit.

Deputy Chief Papier testified that employees complained that Choi created a hostile work environment. Executive Officer Natalie Martinez testified that employees told her there was a hostile work environment. Complaining employees included Sonia Hurtado, Bianca Joseph, Joy Sonlet and others.

Some of the complaints by employees were that Choi would require them to perform functions that were not in their job description and that they would have to stop what they were doing to perform such functions. The Department also introduced written exit interviews of [*13] employees who left the Department during Choi's tenure. These records were purportedly introduced as business records, but contained the statements of the exiting employees.

Bianca Joseph, Choi's subordinate, testified about her treatment by Choi. She worked as the grants coordinator under the leadership of Choi. Joseph testified that Choi created a hostile work environment. She stated that it was so unpleasant to work in Choi's department that she chose to roll back to a demotion rather than continue to work under Choi. Joseph testified that she received no training for her job. Choi regularly asked her to perform administrative tasks which were not in her job description. She asked Joseph to supervise and discipline other employees, something that Joseph was not required to do.

Joseph asserted that Choi lacked people skills and empathy. When asked about the environment for employees, Joseph testified that she felt like she was walking on eggshells, and that she was micromanaged. Choi's leadership style caused Joseph to request to roll back her position rather than continue to work under Choi.

Joseph is now a Commander for the Police Department. [*14] Analysis A circuit court panel reviewing a petition for writ of certiorari is tasked with determining: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982); Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

The Petitioner challenges whether the decision of the Civil Service Board was supported by competent substantial evidence. The Petitioner further contends that the Department held her accountable for duties which are neither found in the applicable Department Order nor in the Standard Operating Procedures applicable to the function at issue. We treat this issue as a claim that there was a departure from the essential requirements of law. Finally, the Petitioner argues that she was deprived of due process at her hearing.

Due Process

We reject the argument that Choi was deprived of due process. [*15] She received ample due process in the multiple evidentiary hearings held over the course of a year. Her lawyer was given unfettered opportunities to challenge and cross-examine witnesses. The record is replete with the evidence offered by her counsel.

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. In quasijudicial zoning proceedings, the parties must be able to present evidence, cross examine witnesses, and be informed of all the facts upon which the commission acts. Jennings v. Dade Cnty., 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991).

Applying this standard, Choi received due process in her quasijudicial process.

Departure from the Essential Requirements of Law Choi claims that she was tasked with performing functions not in her job requirements. We treat this as an argument that the City departed from the essential requirements of law, although this issue is not clearly set forth in the Petition.

Major Aguilar testified that although Choi is not the employee who would have known the details of the cost of hurricane-related damages, she was asked to, and promised to get this key information [*16] to her supervisor. She claimed ignorance at a meeting, causing delay and frustration to Deputy Chief Papier and Major Aguilar. Choi testified that she was not required to sign off on grants, as this was the purview of Joseph, the grants manager or coordinator. On the other hand, Deputy Chief Papier testified that providing this information was within Choi's responsibilities.

There is nothing in the record before us to substantiate Choi's claim that her duties were not found in the applicable Department Order nor in the Standard Operating Procedure. This precludes us from finding that the essential requirements of law were not met.

Competent Substantial Evidence

The crux of Petitioner's arguments is that certain allegations were unsupported by any non-hearsay evidence and therefore, these findings were unsupported by competent substantial evidence.

While hearsay is admissible in administrative hearings, it may not provide the sole foundation for an administrative finding. See MacPherson v. Sch. Bd. of Monroe County, 505 So. 2d 682, 684 (Fla. 3d DCA 1987). Thus, hearsay evidence may be considered to corroborate non-hearsay evidence: [*17] Although hearsay evidence is admissible in an administrative hearing to corroborate or explain other evidence, it may not be used to support a finding not otherwise supported by competent substantial evidence. Spicer v. Metropolitan Dade County, 458 So. 2d 792 (Fla. 3d DCA 1984); Pasco County School Bd. v. Florida Pub. Employees Relations Comm'n, 353 So. 2d 108 (Fla. 1st DCA 1977); § 120.58(1)(a), Fla.Stat. (1985).

Id. at 684. But "[i]f, on the other hand, hearsay evidence is corroborated by otherwise competent, substantial evidence, it may support an agency determination." Spicer, 458 So. 2d at 794. (citation omitted) Bianca Joseph testified that Choi caused a hostile work environment, that she ordered her to perform administrative tasks not within her job description, and that the work environment caused her to seek demotion rather than continue in her position. This was direct evidence and not hearsay. Hearsay evidence presented by Deputy Chief Papier, Major Aguilera, and Natalie Martinez about similar complaints by other employees, and employees' decisions voluntarily to seek demotion rather than continue under Choi's leadership buttressed the direct evidence presented by Bianca Joseph. [*18] This Court recognizes that Bianca Joseph's testimony conflicted with Choi's testimony and that there was likely acrimony between them. Choi offered contrary evidence as to the reasons why employees sought demotion. But it is not our job to re-weigh evidence. See Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). We therefore find that there was competent, substantial evidence supporting Choi's demotion based upon the finding that she lacked leadership ability.

Remedy

We find that there was competent substantial evidence to support Deputy Chief Papier's findings of Choi's inability to perform her essential job functions: (1) by failing to report damages to a fence and a substation to support a FEMA claim, (4) by approving an unnecessary expenditure for a refrigerator, and (6) as reflected by the Office of Management and Budget, identifying and documenting deficiencies in Choi's work output. There was also competent substantial evidence to support Deputy Chief Papier's findings that she lacked leadership ability: (1) by being unwilling to supervise employees with guns and (2) by causing employees to transfer to [*19] different assignments, quit or roll back (choose demotion), citing Choi's toxic work environment as the primary reason for their decision.

However, there was insufficient competent substantial evidence to support the findings of Choi's inability to perform her job functions in (2) telling payroll clerk Janeisy Aracena to ignore a directive to enter PATEO information to facilitate FEMA reimbursements, (3) inaccurately reporting a budget surplus, and (5) misallocating $233,000 of a federal grant for the purchase and implementation of a Body Worn Camera program.

As some of the findings in Deputy Chief's memorandum demoting Choi were supported and some were not supported, and as there is no indication whether the Civil Service Board would have sustained Choi's demotion absent the findings which were unsupported by competent substantial evidence, we must quash the decision below.

Beyond quashing the decision below, we have no power to direct the scope of proceedings on remand. The Florida Supreme Court explained in Broward County v. G.B.V. Intern., Ltd., 787 So. 2d 838, [*20] 844 (Fla. 2001), that a circuit court in granting certiorari may do no more than quash the lower tribunal's ruling: "The role of the reviewing court in such a proceeding is to halt the miscarriage of justice," nothing more:

On certiorari the appellate court only determines whether or not the tribunal or administrative authority whose order or judgment is to be reviewed has in the rendition of such order or judgment departed from the essential requirements of the law and upon that determination either to quash the writ of certiorari or to quash the order reviewed.

When the order is quashed, as it was in this case, it leaves the subject matter, that is, the controversy pending before the tribunal, commission, or administrative authority, as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered.

The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the respondent to enter any particular order or judgment.

(quoting Tamiami Trail Tours v. Railroad Commission, 128 Fla. 25, 174 So. 451, 454 (1937)). See also Miami-Dade County v. Snapp Industries, Inc., 319 So. 3d 739 (Fla. 3d DCA 2021). [*21] The Petition is granted and the decision below is quashed.

TRAWICK, WALSH, and SANTOVENIA, J.J. concur.