author: ORFINGER, J. TORPY, J.,

text:
    Bryon D. PARK, Appellant, v. CITY OF WEST MELBOURNE, Florida, Appellee.
    No. 5D05-2226.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2006.
    Rehearing Denied April 25, 2006.

      Edward R. Gay, Orlando, for Appellant.
    Charles Robinson Fawsett, P.A., of Shutts & Bowen LLP, Orlando, for Appel-lee.
   ORFINGER, J.

Bryon D. Park appeals the summary final judgment entered in favor of the City of West Melbourne (“City”) in his action for declaratory relief seeking reinstatement and back pay. We reverse.

’ From the police department’s phone bill, Police Chief Brian Lock, learned that a call had been placed from a department phone line to the Astrological Society psychic hotline, incurring a charge of $39.95. He questioned several police officers, including Park, about the call. Park claimed that he had no knowledge of anyone calling a 1-900 number or any psychic service, and signed a written statement to that effect. After learning that the police department had been charged for a call to a psychic hotline, and that Chief Lock was looking into the matter, Officer “Bo” Bryant admitted to Chief Lock that he had called the psychic phone line. According to Bryant, he had seen an advertisement for the psychic line, which claimed that any call under three minutes would be free. Bryant told Chief Lock that Park had timed the call to make sure that he was not on the phone longer than three minutes.

Based on Bryant’s admission, Chief Lock began an internal investigation to determine if Park had provided false testimony, and, as a result, violated the police department’s Uniform Standards of Conduct, which Park had agreed to as a condition of his employment. Chief Lock interviewed Park and advised him that the investigation could lead to disciplinary action, demotion, or dismissal. Even after being confronted with Bryant’s admission, Park still maintained that he had not called the psychic hotline, nor did he remember Bryant calling the psychic hotline while he timed the call. However, Park conceded that he was having family problems around the time when the call was placed, and if Bryant said that he participated in the call, he probably did; he simply did not remember it.

Mark K. Ryan is the City’s Chief Executive Officer and is the only City employee with authority to discharge City employees. Based on Chief Lock’s investigation, Ryan wrote to Park, setting forth the allegations against him and advising him that Chief Lock had recommended that Park’s employment with the City be terminated. Ryan advised Park that before a final decision on his employment was made, Park could meet with him and present his side of the story. A pre-termination meeting was held, attended by Ryan, Chief Lock, Park, Park’s attorney, and an attorney for the City. Following the meeting, Ryan decided to discharge Park based on his dishonesty about his participation in the call to the psychic hotline. Ryan’s discharge letter to Park stated:

I have decided to terminate your employment with the City of West Melbourne.
I advise you that you are entitled to a subsequent public, evidentiary hearing before a person selected and empowered by the City to set aside, modify or affirm this decision. The issue in this hearing would be whether the City’s decision to terminate your employment was arbitrary, pretextual or for an improper mo-tivé. This hearing would meet the requirements of due process of law under the 14th Amendment of the United States Constitution and applicable statutory and case law.
If you wish to have such a hearing, please request it in writing to me within 15 days from the date of this letter. Your failure to request such a hearing in writing within such time will be considered a waiver of any right to such a hearing.

In response, Park requested a public evidentiary hearing on the matter. William Hall, the town manager of the Town of Malabar, was appointed to serve as the hearing officer. In a letter to the hearing officer discussing his appointment and the scope of the hearing, Ryan wrote:

The purpose of this hearing is for you to determine whether the City’s decision to terminate a police officer was or was not arbitrary, capricious, pretextual, or for an improper motive. You are hereby empowered to set aside, modify or affirm the City’s decision following your review of the evidence presented at this hearing.

After the hearing, the hearing officer concluded that the City had failed to meet its burden to prove by a preponderance of the evidence that its termination of Park was for just cause and ordered Park’s “immediate reinstatement as a police officer for the City of West Melbourne, along with back pay.”

The City, believing that the hearing officer had “departed in a very material way from the instructions he had been given by the City regarding his role” in the hearing, did not reinstate Park, but, instead, filed a petition for a writ of certiorari in the circuit court, seeking to set aside the hearing officer’s decision. The trial court agreed with the City that the hearing officer’s role was limited to deciding whether the City’s decision to discharge Park was arbitrary, capricious, pretextual, or for an improper motive, and concluded that the hearing officer was not empowered to reweigh the evidence. Since the City’s decision was not arbitrary, capricious, pretextual, or for an improper motive, the trial court granted the City’s certiorari petition, quashed the hearing officer’s decision, and confirmed the City’s decision to discharge Park.

Park then sought review in this Court. We quashed the circuit court’s decision, holding that under Grice v. City of Kissimmee, 697 So.2d 186 (Fla. 5th DCA 1997), a police officer who is not a probationary or at-will employee is entitled to a due process hearing before his termination is final, and “when the termination is based on the testimony of witnesses ... as a matter of constitutional due process, the officer must be permitted to confront and cross-examine the witness.” Park v. City of West Melbourne, 769 So.2d 397, 398 (Fla. 5th DCA 2000) (Park I). This Court reasoned that since Park was not afforded a hearing where he could confront and cross-examine the witnesses against him before his termination became final, Park was denied procedural due process. Id.

Park then filed a petition for a writ of mandamus in the circuit court, seeking reinstatement with back pay, consistent with the hearing officer’s ruling. The circuit court order denied Park’s mandamus petition, concluding that Park “did not establish a clear legal right to reinstatement to employment with the City of West Melbourne with back pay, the relief requested.... ” That ruling was affirmed by this Court. Park v. Ryan, 821 So.2d 1082 (Fla. 5th DCA 2002) (Table) (Park II).

Not being easily deterred, Park then filed an action seeking, by means of a declaratory judgment, reinstatement to City employment and back pay. Both Park and the City subsequently filed motions for summary judgment. The trial court granted the City’s motion, concluding that it had previously decided with finality in the mandamus proceeding that Park “did not establish a clear legal right to reinstatement with back pay,” and, consequently, the issue was barred by judgment by estoppel. This appeal followed.

A final order granting summary judgment is reviewed de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A court may grant summary judgment “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)).

In the proceedings below, the circuit court concluded that under Gordon v. Gordon, 59 So.2d 40 (Fla.1952), Park was es-topped from litigating his entitlement reinstatement with back pay based on the court’s earlier denial of Park’s petition for writ of mandamus. On appeal, Park argues that the trial court erred in concluding that his complaint seeking declaratory relief, injunctive relief, and damages against the City is barred by the doctrine of judgment by estoppel. We agree.

In Gordon, the Florida Supreme Court held that the test in determining whether judgment by estoppel applies to a case is “whether the evidence in both cases is in essence the same” and whether “ ‘every point and question’ presented in the second action was actually litigated and decided in the first.” 59 So.2d at 45. For res judicata or collateral estoppel to apply, there must also exist in the prior litigation a “clear-cut former adjudication” on the merits. Dep’t of Health & Rehab. Servs. v. LaPlante, 470 So.2d 882, 884 (Fla. 2d DCA 1985); see also R.D.J. Enters., Inc. v. Mega Bank, 600 So.2d 1229, 1231 (Fla. 3d DCA 1992) (holding that collateral estoppel prevents relitigation of issues that have been fully litigated and which resulted in a final decision of a court of competent jurisdiction); Hochstadt v. Orange Broadcast, 588 So.2d 51, 53 n. 2 (Fla. 3d DCA 1991) (stating that “defensive collateral estoppel ‘occurs when a defendant seeks to prevent a plaintiff form asserting a claim the plaintiff has previously litigated and lost against another defendant’ ”) (internal citations omitted).

Consequently, we must determine if the trial court’s denial of Park’s petition for writ of mandamus decided the issues presented in Park’s current complaint on the merits. See Dep’t of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 910 (Fla.1995) (noting that Florida courts have emphasized that judgment by estoppel “precludes relitigation of issues actually liti- ■ gated in a prior proceeding”) (emphasis in original). Under this standard, we conclude that estoppel by judgment does not bar Park’s action, because no adjudication on the merits occurred in the mandamus proceeding.

“[M]andamus may be used only to enforce a clear and certain right; it may not be used to establish such a right, but only to enforce a right already clearly and certainly established in the law.” Milanick v. Town of Beverly Beach, 820 So.2d 317, 320 (Fla. 5th DCA 2001) (citing Fla. League of Cities v. Smith, 607 So.2d 397, 400-01 (Fla.1992)). In denying Park’s petition for writ of mandamus, the trial court merely concluded that Park “did not establish a clear legal right to reinstatement to employment with [the City] with back pay, the relief requested.... ” The trial court’s decision to deny Park mandamus relief was predicated in large part on its belief that our opinion in Park I mandated that the City provide Park with a due process, evidentiary hearing. We think that conclusion misconstrues our earlier decisions. In Park I, we readopted our holding in Grice that “if the City is going to terminate someone on the basis of the testimony of other witnesses then the officer must, as a matter of constitutional due process, at some point — either a pre-termination hearing or at a post-termination hearing — be permitted to confront those witnesses and cross examine them.” Grice, 697 So.2d at 190. We did not remand Park I with directions to hold a pre-termination hearing, nor could we have done so. “[A]fter review by certiorari, an appellate court can only quash the lower court order; it has no authority to direct the lower court to enter contrary orders.” Gulf Oil Realty Co. v. Windhover Ass’n, Inc., 403 So.2d 476, 478 (Fla. 5th DCA 1981). When we quashed the circuit court’s order in Park I, the hearing officer’s ruling was left standing.

The City concedes that it was proper for Park to seek enforcement of the hearing officer’s ruling by mandamus or declaratory relief. Park initially chose mandamus relief but was rebuffed on procedural grounds. That was not adjudication on the merits and does not bar this action. Consequently, summary judgment was improper.

Finally, the City argues that the statute of limitations also bars Park’s claim. We decline to rule on that issue as it was never considered in the trial court.

REVERSED AND REMANDED.

GURROLA, B., Associate Judge, concurs.

TORPY, J., concurs and concurs specially, with opinion.

TORPY, J.,

concurring and concurring specially.

I concur in the opinion of the majority. I write to address a potential misconception brought about by the panel opinion in Park I. There, we stated:

In the instant case, since there had been only an internal investigation plus a recommendation from the chief to the city manager that Park be fired, and no pre-termination hearing during which Park could confront the witnesses against him, the circuit court decision denies Park the due process right to confront the witnesses against him.

Park v. City of West Melbourne, 769 So.2d 397, 398 (Fla. 5th DCA 2000) (emphasis added). Admittedly, this statement might be interpreted to require that all pre-termination proceedings include the right to cross-examine witnesses. If so, this is clearly not a correct statement of the law. The seminal decision regarding pre-termi-nation due process for tenured public employees provides as follows:

The foregoing considerations indicate that the pretermination “hearing,” though necessary, need not be elaborate. We have pointed out that “[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” In general, “something less” than a full evidentiary hearing is sufficient prior to adverse administrative action. Under state law, respondents were later entitled to a full administrative hearing and judicial review. The only question is what steps were required before the termination took effect.
In only one case, has the Court required a full adversarial evidentiary hearing prior to adverse governmental action. However, as the Goldberg Court itself pointed out, that case presented significantly different considerations than are present in the context of public employment. Here, the preter-mination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.
The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (emphasis and footnote added) (citations omitted).

Citing Loudermill, our decision in Grice v. City of Kissimmee, 697 So.2d 186 (Fla. 5th DCA 1997), makes clear that the right to confront witnesses need not be afforded during a pre-termination hearing, provided that the right is afforded during a post-termination hearing:

It seems, therefore, that if the City is going to terminate someone on the basis of the testimony of other witnesses then the officer must, as a matter of constitutional due process, at some point — either at a pre-termination hearing or at a post-termination hearing — be permitted to confront those witnesses and cross-examine them.

Grice, 697 So.2d at 190 (emphasis supplied).

Park was afforded notice of the charges and an opportunity to explain his side to Mr. Ryan before he was terminated. Thereafter, he received a prompt post-termination hearing during which he had the opportunity to cross-examine witnesses. Therefore, the pre-termination procedure did not violate Park’s right to procedural due process, and I do not believe Park I holds otherwise.

The actual holding in Park I was that the hearing official had not exceeded the scope of his authority. Although the opinion does not expressly state its holding, because the lower court had quashed the hearing official’s order for this reason, our order quashing the circuit court’s order clearly mandated this conclusion. The discussion in Park I about pre-termination confrontation simply expresses the view that, because the pre-termination procedure was not sufficient — unless followed by a post-termination confrontation opportunity — and because the decision of the hearing official was nullified by the lower court’s decision, due process was denied by the “circuit court decision.” Park, 769 So.2d at 398. Our mandate quashing the circuit court’s order forecloses the city from farther challenges to the authority of the hearing official. Whether other defenses are now available to the city is beyond the scope of this proceeding.

      . The evidentiary hearing, provided by the City, was in compliance with the procedure laid out in the City's Uniform Standards of Conduct, which provides:
      If a member's employment is terminated or suspended without pay, he/she will be afforded a post discipline hearing. The purpose of this hearing will be for the member to present information, which would be heard by a Hearing Officer or Review Board at the discretion of the City, to decide if the disciplinary action should stand.

      . Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    ALLIED ASPHALT PAVING, INC., a Florida corporation, Petitioner, v. AUTO-OWNERS INSURANCE COMPANY, a foreign corporation, Andres Villareal, and Edward Patola, Respondents.
    No. 2D04-5787.
    District Court of Appeal of Florida, Second District.
    March 3, 2006.
    Rehearing Denied May 9, 2006.

      Celene Humphries, Esq., Tampa, for Petitioner.
    Curtright C. Truitt of Curtright C. Truitt, P.A., Fort Myers, for Respondent Auto-Owners Insurance Company.
    No appearance for Respondents Andres Villareal and Edward Patola.
   CASANUEVA, Judge.

In the declaratory action that underlies this appellate proceeding, the petitioner, Allied Asphalt Paving, Inc., an insured under a policy issued by respondent Auto-Owners Insurance Company, seeks a writ of prohibition to restrain the trial court from unauthorized use of its judicial power. Because we conclude the trial court has not acted beyond the boundaries of its authority but rather has erred in exercising that authority, we treat the petition as one for certiorari and grant the petition as the trial court has departed from the essential requirements of the law.

The question Allied Asphalt presents is whether the trial court may issue a protective order precluding its attorney from disclosing the contents of Auto-Owners’ claim file, a file that was transferred to Allied Asphalt’s attorney when he was hired by Auto-Owners to represent Allied Asphalt as a defendant in a negligence suit. The order we review precludes Allied Asphalt’s attorney in the negligence suit from showing the file to Allied Asphalt or to other counsel that Allied Asphalt has consulted with regarding the negligence suit. Auto-Owners asserts that it sought the protective order because the material it provided to aid Allied Asphalt’s attorney in the negligence suit is its own privileged work product. We note that Auto-Owners has furnished representation to Allied Asphalt under a reservation of rights and has since begun the underlying declaratory action to resolve the coverage issue. We conclude that in this instance the trial court departed from the essential requirements of the law, in part because the order at issue is directed at an attorney working in a separate lawsuit.

Stripped to its essentials, the situation is that Auto-Owners (a party outside the negligence suit) has convinced the trial court in the instant declaratory action (which is a separate action from the negligence suit) that the negligence suit defendant (Allied Asphalt) may not inspect materials in its own attorney’s possession and may not have another of its attorneys inspect those materials. Those materials were voluntarily provided by Auto-Owners to the attorney defending Allied Asphalt in the negligence suit. At the time this attorney received the materials, he was the attorney and agent for Allied Asphalt alone, despite the fact that his representation was paid for by Auto-Owners. Auto-Owners was aware of this fact at the time it provided the claim file to him. This attorney has steadfastly maintained throughout these proceedings, and properly so, that his client is Allied Asphalt and not Auto-Owners. See R. Regulating Fla. Bar 4 — 1.7(3) (Representation of Insureds). Before it disclosed these materials, Auto-Owners had the opportunity and the power to review and select those documents it wished to provide to the attorney for its insured. Typically, in this kind of case, the documents transferred would consist of the insured’s policy, its declarations, and some or all of the insurance company’s claim investigation materials. If more were transferred, such as the insurance company’s in-house counsel’s personal notes regarding future issues that might arise between Auto-Owners and Allied Asphalt — a distinct possibility given the fact that Auto-Owners claimed from the beginning that it had no responsibility to provide coverage — the transfer would, nonetheless, remain voluntary. Precluding a client from inspecting all materials held by its attorney that were provided by third parties would interfere in the relationship between attorney and client to an unacceptable degree. Cf. Profl Ethics of the Fla. Bar, Op. 97-1 (1997) (holding that an attorney “may not ethically continue the representation of the insured under instructions from the insurance carrier that the lawyer file for summary judgment where the attorney has determined that such a motion would be against the insured’s interest”).

Auto-Owners has not demonstrated a legal basis for the trial court’s order. Because the order improperly interferes with the relationship between Allied Asphalt and its attorneys, we conclude that the trial court departed from the essential requirements of law, resulting in irreparable injury to Allied Asphalt. Thus, we grant the petition, quash the protective order, and remand for further proceedings.

ALTENBERND and SILBERMAN, JJ., Concur.

      . Our opinion does not, of course, preclude the attorney representing Allied Asphalt in the negligence suit from asserting a privilege in his own work product.

      . We caution that any advantage the second attorney may gain in any litigation between Allied Asphalt and Auto-Owners will be constrained by the Rules Regulating the Florida Bar, especially matters of disqualification on the basis of conflict of interest. See R. Regulating Fla. Bar 4-1.7(b) (“A lawyer shall not represent a client if the lawyer’s exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to ... a third person.... ”).


author: PER CURIAM.

text:
    Carlos A. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3423.
    District Court of Appeal of Florida, First District.
    March 14, 2006.
    Rehearing Denied April 28, 2006.

      Carlos A. Martin, pro se.
    Charlie Crist, Attorney General and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Carlos A. Martin appeals an order denying his motion for post-conviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The lower court denied relief as to all claims raised finding them to be facially insufficient; thus, the lower court denied relief without benefit of an evidentiary hearing and without attaching portions of the record refuting the claims raised. As to three claims, however, the lower court erred in finding them to be facially insufficient. Accordingly, we reverse and remand this cause to the lower court for further consideration of the claims that (i) defense counsel was ineffective for failing to object to references at trial regarding appellant’s commitment to a prison unit for violent prisoners (ground c in appellant’s 3.850 motion); (ii) defense counsel was ineffective for failing to object to prosecutor’s closing argument regarding the weight to be accorded by the jury to the defense witnesses (ground d in appellant’s 3.850 motion), and (iii) defense counsel was ineffective for failing to request a self-defense instruction (ground e in appellant’s 3.850 motion). On remand, the lower court either must conduct an evidentia-ry hearing or attach those record excerpts which conclusively refute the above-noted claims. See Fla. R.App. P. 9.141(b)(2)(D); Miller v. State, 905 So.2d 981, 982 (Fla. 3d DCA 2005)(“In the present case the record now before us contains no record excerpts which conclusively refute the defendant’s claim. Accordingly, we reverse the order now before us and remand for the trial court to conduct an evidentiary hearing, or attach record excerpts which demonstrate conclusively that the defendant is not entitled to any relief.”).

We affirm the denial of post-conviction relief as to the remaining claims in appellant’s motion.

AFFIRMED in part, REVERSED in part and REMANDED.

ALLEN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Harold VIXAMAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-195.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2006.
    Rehearing Denied April 20, 2006.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004).

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Horatio E. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0254.
    District Court of Appeal of Florida, First District.
    March 17, 2006.
    Rehearing Denied April 28, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s record and the appellant’s response to this Court’s Fébruary 2, 2006 order to show cause, this appeal is dismissed for lack of jurisdiction.

DISMISSED.

KAHN, C.J., LEWIS and POLSTON, JJ., concur.


text:
    Sandrilla HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4932.
    District Court of Appeal of Florida, Second District.
    March 22, 2006.
    Rehearing Denied May 3, 2006.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Sandrilla Hayes appeals her conviction and sentence imposed after she violated her probation. She received a sentence of sixty months for aggravated battery with a deadly weapon. She claims two errors. She first argues that the trial court erred in revoking her probation because there was insufficient evidence that she willfully and substantially violated numerous conditions of the probation. We find no merit in this argument and affirm the conviction and sentence without further discussion.

Second, she contends that the trial court erred in failing to grant her motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b). She had filed this motion during the pendency of this appeal claiming that the written revocation order does not comport with the trial court’s oral pronouncement. See Williams v. State, 764 So.2d 757 (Fla. 2d DCA 2000). The trial court had announced at the revocation hearing that it found that she had violated four different conditions, but the written order indicates that the court found she had violated an additional two conditions. The State concedes the error but claims, and we agree, that the trial court would have revoked her probation even without including the evidence related to these two additional conditions.

We, therefore, affirm the conviction and sentence but remand for entry of a corrected revocation order. Ms. Hayes need not be present on remand when the amended revocation order is entered.

CASANUEVA, KELLY, and VILLANTI, JJ., Concur.


author: HAZOURI, J. KLEIN, J.,

text:
    Carmen Maria CONTRERAS, as Administrator and Personal Representative of the Estate of Flor Torres Osterman and Guardian for and on behalf of Carmen Lorena Duarte, a minor child, as assignee of Kenneth A. Welt, Trustee, Appellant, v. U.S. SECURITY INSURANCE COMPANY, Appellee.
    Nos. 4D04-1427, 4D04-4175.
    District Court of Appeal of Florida, Fourth District.
    March 22, 2006.
    Rehearing Denied May 23, 2006.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, Joseph S. Kashi of Sperry Shapiro & Kashi, P.A., Plantation, and Diego C. As-encio of Diego C. Asencio, P.A., North Palm Beach, for appellant.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for appellee.
   HAZOURI, J.

Carmen Maria Contreras, as personal representative of the estate of her daughter, Flor Torres Osterman, as guardian of Flor’s daughter, and as assignee of the claim of Deana Dessanti, the owner of the vehicle which struck and killed Flor, appeals the final judgment directing a verdict in favor of U.S. Security Insurance Company, Dessanti’s insurance carrier, on a claim of bad faith. Contreras also appeals a final cost judgment which was entered against her. We reverse.

This bad faith lawsuit arose out of a tragic automobile accident that occurred on July 17, 1992, when the decedent, Flor Torres Osterman, was walking on the side of a road in a residential area in Broward County when she was hit and killed by a car owned by Deana Dessanti and driven by Arnold Blair Dale. Dale was driving Dessanti’s car with her knowledge and permission. At the time of the automobile accident, Dale was driving at a high rate of speed and had consumed alcoholic beverages. He was charged with DUI manslaughter and leaving the scene of an accident with injuries.

Dessanti’s vehicle was insured under an automobile liability insurance policy with U.S. Security which provided bodily injury coverage. Dale, although not a named insured, was an additional insured by virtue of being a permissive user of Dessan-ti’s vehicle.

Dessanti reported the accident to U.S. Security on July 21, 1992, and three days later claims adjuster, Marlene Plasencia, was assigned to investigate and handle the claim. On July 28, 1992, Plasencia received a letter from Contreras’s attorney, Carlos Velasquez, notifying her of his representation of the decedent’s estate.

On August 5, 1992, Velasquez sent a letter to Plasencia in which he made the following demand:

Our investigation to date reveals that Deana Dessanti had given permission to Arnold Blair Dale to drive her vehicle and that at the time of this incident your insured had coverage up to $10,000 per person and $20,000 per accident. If such is the case, I am hereby demanding as counsel for the estate of Flora Torres your tender of the policy limits within fifteen (15) days from the receipt of this correspondence.

On August 13, 1992, Plasencia sent Velasquez a letter tendering the policy limits along with a general release form discharging both Dessanti and Dale and all others who might have claims against them as a result of this accident. On September 23, 1992, Velasquez responded to Plasencia’s letter of August 13, rejecting Plasencia’s offer of the policy limits due to the inclusion of Dale and all others on the release. Velasquez offered to accept the policy limits in exchange for a release of Dessanti and U.S. Security, but not Dale. The offer was good until October 15, 1992. Velasquez enclosed with the letter a general release form for execution which would release both Dessanti and U.S. Security. Velasquez advised U.S. Security that because of the gravity of Dale’s misconduct, the personal representative of the decedent’s estate was not willing to settle the claim against Dale and was unwilling to give him a release.

On September 28, 1992, attorney Mike Nuzzo, who had been hired by U.S. Security, wrote a letter to Velasquez at Plasen-cia’s request. The letter stated as follows:

Please be advised that I have been requested by Marlene Plasencia from U.S. Security Insurance Company to respond to your letter dated Sept. 23, 1992. First, please be advised that your aforementioned letter does not acknowledge that the driver Arnold Blair Dale is also an insured (covered person) under the policy of insurance issued by U.S. Security Insurance Company to the named insured — owner Deana A. Dessanti. Of course, you understand that under Florida law Mr. Dale became an insured under the U.S. [sic] Insurance Company policy because at the time of the accident he was operating Ms. Dessanti’s 1984 Chevrolet with Ms. Dessanti’s consent and permission.
Consequently, pursuant to Florida law U.S. Security Insurance Company is obligated to act in good faith to the named insured/owner Deana Dessanti and to the insured/driver Mr. Arnold Blair Dale. That is the reason that the release provided to you by Ms. Plasencia in her letter dated Aug. 13, 1992 included Mr. Dale.
Please note that U.S. Security agrees that this case is serious, however, U.S. Security must act in good faith to all of its insureds. Therefore you can understand why U.S. Security cannot enter into a release which operates to fully exonerate one insured while not releasing the second insured.
In closing, if you have any additional suggestions as to how this matter can be settled without U.S. Security standing in a position of bad faith to one of its insureds I and U.S. Security would be more than happy to hear your suggestions.

(Emphasis added).

U.S. Security’s insurance policy specified as follows with regard to its duty to defend and indemnify:

We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an automobile accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted.

(Emphasis added).

After the deadline set by Velasquez in his letter of September 23, 1992 expired, Contreras filed a wrongful death suit against Dale and Dessanti which ultimately was tried by a jury in December 1994, resulting in a judgment for compensatory damages against Dessanti and Dale for $1,000,000, as well as a punitive damage judgment against Dale in the amount of $110,000 which was later remitted to $5,000. In addition to the final judgment of $1,000,000 entered against Dessanti and Dale, a cost judgment in the amount of $13,143.05 was also entered against Des-santi. This judgment was affirmed by this court in Dessanti v. Contreras, 695 So.2d 845 (Fla. 4th DCA 1997).

Dessanti had filed for bankruptcy prior to the final judgment. After the entry of the final judgment in the wrongful death case, Dessanti’s trustee in bankruptcy, Kenneth A. Welt, executed an assignment to Contreras of Dessanti’s cause of action for bad faith against U.S. Security. After obtaining the assignment, Contreras filed the bad faith claim and proceeded to trial.

At the close of Contreras’s presentation of her evidence in this case, U.S. Security moved for and was granted a directed verdict. In granting U.S. Security’s motion for a directed verdict, the trial court was persuaded by Nuzzo’s argument that U.S. Security was obligated to act in good faith to both Dessanti and Dale as covered insureds, and therefore, U.S. Security could not enter into a settlement and release which operated to totally exonerate Dessanti without releasing Dale. In arriving at the conclusion that U.S. Security was entitled to a directed verdict, the trial judge stated:

It [the offer to settle with Dessanti but not Dale] immediately places the insurance company then in the Hobson’s choice. If they don’t agree to that, they’re sued for bad faith, and if they do agree to it, they’re sued for bad faith. If they agree to it and cut Dale loose, the Plaintiff simply takes an assignment from Dale. If they don’t agree to it and leave Dessanti in, the Plaintiff simply takes an assignment from Dessanti. The Plaintiffs protected either way and the insurance company loses either way, and I don’t think that’s the state of the law. By creating it that way, what, in essence, the Court is permitting is it’s letting the Plaintiff dictate whether a bad faith claim arises as opposed to looking at the conduct of the insurance company. It creates an automatic bad faith. Either Dessanti should have been protected and wasn’t, in which case she has a bad faith claim, or Dale is cut loose and the insurance company had a duty to defend him, in which case he has a bad faith claim, and the insurance company is sitting squarely in the middle with no way to turn.

The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo. Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320 (Fla. 4th DCA 2005). In reviewing the granting of a directed verdict, an appellate court must view the evidence and all inferences of fact in the light most favorable to the nonmov-ing party, and can affirm a directed verdict only when no proper view of the evidence could sustain a verdict in favor of the nonmoving party. See Decarlo v. Griffin, 827 So.2d 348, 350 (Fla. 4th DCA 2002).

Contreras argues that the trial court erred in concluding that the issue in this case is whether an insurer which owes a duty of good faith to two covered insureds, can be held in bad faith for offering its policy limits and requiring a release of both of its insureds where the claimant is unwilling to settle with one of the insureds. Contreras asserts that is not the issue. She asserts that the issue is, whether an insurer acts in bad faith in refusing to pay a reasonable settlement demand in order to obtain a release of one of its two insureds, where the claimant refuses to settle with the other insured. We agree with Contreras’s formulation of the issue at hand because under our case law the gravamen of what constitutes bad faith is whether under all the circumstances an insurer failed to settle a claim against an insured when it had a reasonable opportunity to do so.

When an insured like Dessanti has surrendered to the insurer all control in the handling of the claim, including all decisions with regard to litigation and settlement, which Dessanti must do under the terms of the insurance policy, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interest of its insured. See Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.1980). In Boston Old Colony, the Florida Supreme Court delineated the standard of care that an insurer must exercise when handling claims against an insured:

This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith. The question of failure to act in good faith with due regard for the interests of the insured is for the jury.

Id. at 785 (citations omitted). This duty of good faith has been reaffirmed in numerous cases decided since Boston Old Colony and as recently as in the Florida Supreme Court’s decision in Berges v. Infinity Insurance, Co., 896 So.2d 665 (Fla.2004).

The issue of whether an insurance company can be held liable for bad faith where there was a demand to settle with one insured but not release all insureds is a question of first impression in this state. Nevertheless, the standard for what constitutes bad faith in light of the circumstances in the instant case can be judged based upon the principles set forth in Boston Old Colony.

U.S. Security argues that it had an obligation to act in good faith not only towards Dessanti but also towards Dale, because Dale was also covered under the terms of the policy as a permissive driver of Des-santi’s vehicle. Clearly, U.S. Security did have an obligation to act in good faith towards both of the insureds. In an effort to fulfill its obligation of good faith, U.S. Security attempted to secure, in exchange for the policy limits, a release for both Dessanti and Dale. Because of the gravity of Dale’s misconduct, Contreras was not willing to settle the claim against Dale. Having attempted to secure a release for Dale without success, U.S. Security fulfilled its obligation of good faith towards Dale. Once it became clear that Contreras was unwilling to settle with Dale and give him a complete release, U.S. Security had no further opportunity to give fair consideration to a reasonable settlement offer for Dale. Since U.S. Security could not force Contreras to settle and release Dale, it did all it could do to avoid excess exposure to Dale.

Having fulfilled its obligation to Dale, U.S. Security thereafter was obligated to take the necessary steps before Contreras’s offer expired to protect Dessanti from what was certain to be a judgment far in excess of her policy limits. Under the terms of its policy, had U.S. Security paid out its limits, its duty to settle or defend would have ceased. See Underwriters Guarantee Ins. Co. v. Nationwide Mut Fire Ins. Co., 578 So.2d 34 (Fla. 4th DCA 1991). In Underwriters, a non-settling insured alleged that the insurer’s policy limits settlement on behalf of only one insured constituted a breach of the contract as to the non-settling insured. This court held that in that instance, the insured did not have a duty to defend the remaining, non-released insured. We reasoned that because the policy relieved the insurer of its duty to defend any suit once it had paid its policy limits, the insurer was not obligated by its contract to continue to defend the additional insured after payment of the policy limits in settlement for its named insured. Id. at 35.

The trial court’s concern of placing U.S. Security in a Hobson’s choice is not well-founded. The argument that U.S. Security, as a matter of law, could not settle the claim only against Dessanti because it would expose itself to a claim of bad faith by Dale is an illusory one. U.S. Security attempted to settle for both Dessanti and Dale and get a complete release for both of them. A release was unattainable due to Contreras’s adamant refusal to settle with Dale. Contreras’s refusal is understandable. The horrific nature of the accident and Dale’s misconduct of drinking and driving and leaving the scene of an accident could easily account for the animus directed toward Dale. In any event, the focus in a bad faith case is not on the actions of the claimant, but rather on those of the insurer in fulfilling its obligation to the insured. See Berges, 896 So.2d at 677.

■ We reverse the judgment in favor of U.S. Security and the cost judgment and remand for a new trial.

Reversed and Remanded.

WARNER, J., concurs.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority opinion. I am writing separately to address the insurer’s argument that this reversal will lead to more bad faith litigation, as well as its alternative argument for affirmance.

The insurer’s position is that if it could not get a release for both of the insureds, it would have been guilty of bad faith in settling for only one and this will create more bad faith litigation. The majority of jurisdictions which have addressed the release problem have rejected that proposition. In re Vitek, Inc., 51 F.3d 530 (5th Cir.1995); Bohn v. Sentry Ins. Co., 681 F.Supp. 357 (E.D.La.1988), aff'd, 868 F.2d 1269 (5th Cir.1989); Millers Mut. Ins. Ass’n of Ill. v. Shell Oil Co., 959 S.W.2d 864 (Mo.App.1997); Anglo-American Ins. Co. v. Molin, 670 A.2d 194 (Pa.Commw.Ct.1995); Pekin Ins. Co. v. Home Ins. Co., 134 Ill.App.3d 31, 89 Ill.Dec. 72, 479 N.E.2d 1078 (1985). Two jurisdictions have the contrary view. Smoral v. Hanover Ins. Co., 37 A.D.2d 23, 322 N.Y.S.2d 12 (1971); and Strauss v. Farmers Ins. Exchange, 26 Cal.App.4th 1017, 31 Cal.Rptr.2d 811 (1994).

If an insurer is given a reasonable period of time in which to settle, as in this case, and it is entirely clear that within that time the plaintiff is not going to release the driver, the insurer as a matter of law cannot have breached a duty of good faith to the driver. The majority opinion ■will benefit insurers by clarifying that, if they are unable to obtain a release for all defendants, they can still settle with one without being in bad faith.

The insurer has advanced an alternative argument for affirmance, which the trial court did not consider. That argument relies on a letter dated October 9, 1992, addressed to the insurer, by a lawyer privately retained by both the owner and her fiancé, the driver. In the letter the owner allegedly asserted that if the insurer settled without obtaining a release of both the owner and the driver, the insurer would be acting in bad faith. This letter was written about one week before the deadline for accepting the plaintiffs offer to take the policy limits. The only record reference for this letter is to a page of the transcript, on which there was mention of it by a witness. The letter was not in evidence and not considered by the trial court when it directed a verdict at the end of the claimant’s case.

The insurer argues that based on this letter it was entitled to a directed verdict, citing Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.1980). In that case a directed verdict was granted for an insurer on a bad faith claim based on the insured’s unwillingness to settle with the plaintiff, where the insurer wanted to settle. Because this record does not reflect the facts surrounding the letter, which would have presumably become apparent if the insurer had presented its evidence at trial, we are unable to determine the legal significance of it. If I were the trial judge on remand, I would allow the case to go to the jury, because a verdict for the insurer could obviate the need for ruling on the legal effect of the letter. Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1965) (commending the trial court for not directing a verdict in favor of the defendant until after the jury returned a verdict for the plaintiff).

      . There were no Florida cases dealing directly with this contention. In fact, to the extent this point has been dealt with in other jurisdictions, the weight of authority is to the contrary. Minkoff & Hamilton, Multiple Insureds: Can A Good Faith Settlement Terminate A Right To A Defense? For The Defense, 8 (May 2000).

      . See Florida Standard Civil Jury Instruction MI 3.1 which provides in relevant part:
      INSURER'S BAD FAITH FAILURE TO SETTLE
      a. Issue:
      The issue for your determination is whether (defendant) acted in bad faith in failing to settle the claim [of] [against] (insured). An insurance company acts in bad faith in failing to settle a claim when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward [its policyholder] [its insured] [an excess carrier] and with due regard for [his] [her] [its] [their] interests.


text:
    U.S. SECURITY INSURANCE COMPANY, Appellant, v. Carmen Maria CONTRERAS, as Administrator and Personal Representative of the estate of Flor Torres Osterman and guardian for and on behalf of Carmen Lorena Duarte, a minor child, as assignee of Kenneth A. Welt, Trustee, Appellee.
    No. 4D04-1544.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    David B. Pakula of David B. Pakula, P.A., Pembroke Pines, for appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, Diego C. Asencio of Diego C. Asen-cio, P.A., North Palm Beach, and Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Plantation, for appellee.
   PER CURIAM.

In case numbers 4D04-1427 and 4D04-4175, this court reversed the judgment in favor of U.S. Security Company. We therefore dismiss as moot this appeal of the denial of its motion for attorney’s fees under the offer of judgment statute.

STONE, GROSS and MAY, JJ., concur.

      . Contreras v. U.S. Sec. Ins. Co., Nos. 4D04-1427 and 4D04-4175, 927 So.2d 16, 2006 WL 708567 (Fla. 4th DCA Mar.22, 2006).


author: KLEIN, J.

text:
    Joanne FANIZZA, Appellant, v. STATE of Florida, COMMISSION ON ETHICS, Appellee.
    No. 4D05-888.
    District Court of Appeal of Florida, Fourth District.
    March 22, 2006.
    Rehearing Denied May 19, 2006.

      Joanne Fanizza of the Law Offices of Joanne Fanizza, P.A., Fort Lauderdale, and Jerome R. Schechter of Jerome R. Schechter, P.A., Fort Lauderdale, for appellant.
    C. Christopher Anderson, III, and Philip C. Claypool, Tallahassee, for appellee.
   KLEIN, J.

Appellant is an attorney who served on the city council of Wilton Manors from 1998 until 2002. She appeals an order of the Commission on Ethics which found that she violated the ethics statute governing conflicts of interest by elected public officials. The proceedings addressed two cases in which she represented clients against the city while on the council. In the first case, Glasser, the commission recommended a $1,000 fine, and a public censure and reprimand. In the second case, Fanizza, the commission recommended a $2,000 fine and a public censure and reprimand. We reverse.

The cases, which were not related, were considered by the commission on facts which were entirely stipulated. The commission found separate violations resulting from each case, but resolved them together in one order.

GLASSER CASE

In Glasser appellant had represented nine residents opposing a rezoning request which was granted by the city council more than two years before appellant was elected to the council. Appellant filed a petition for certiorari in the circuit court seeking to quash the rezoning. The city confessed error and the circuit court granted the petition. Appellant then filed in circuit court a motion for attorney’s fees and costs which was granted, and the city appealed that award to this court. It was during the appeal of the order awarding attorney’s fees and costs, and after all of the briefs were filed, that appellant took office, in March 1998.

After her election this court affirmed and awarded appellate attorney’s fees. Appellant then filed a motion in circuit court to set the amount of appellate costs and attorney’s fees, and to compel the city to pay the attorney’s fees already awarded. After the city attorney sent a memorandum to the mayor and council members to bring them up to date, the matter came before the council in June 1998. Appellant filed the proper form indicating a conflict of interest and was not involved. A few weeks later an agreed order was entered by the circuit court setting the amount of appellate costs and attorney’s fees.

This proceeding, as well as the Fanizza matter, came about as a result of complaints filed against appellant by citizens. The commission found separate ethical violations for each case, based on section 112.313(7), Florida Statutes (2002), which provides:

No public officer or employee of any agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee ...; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interest and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [e.s.]

After acknowledging that “conflict” or “conflict of interest” is defined by section 112.312(8) to mean “a situation in which regard for a private interest tends to lead to disregard of a public duty or interest,” the commission went on to state:

Regarding the Glasser case and the Fanizza case, we find, based on clear and convincing evidence, that Respondent held a contractual relationship with her clients (private litigants suing the City and adverse to the position of Respondent’s public agency), notwithstanding that she did not receive monetary remuneration for her services in the Fanizza case. While we have in a number of instances found that a public official did not hold a contractual relationship in situations in [sic] which he or she was not paid or otherwise compensated, it our view of the statute, long held and often stated, that a public official holds a contractual relationship with all clients of his or her law firm or practice, recognizing, as do courts, the special and professional connections between attorneys and their clients ...
Further, we find, based on clear and convincing evidence, that Respondent’s contractual relationships with her private clients in the Glasser and Fanizza cases created a continuing or frequently recurring conflict between her private interest as an attorney representing private litigants adverse to her public agency and its governmental decisions and the performance of her public duties as a member of the governing body of her public agency, and that the contractual relationship impeded the full and faithful discharge of her public duties. Not only was the City deprived of the services of one of its governing board members (“wearing her public/Council hat”) by virtue of her private entanglements occasioned by her representation of parties against her City, but she (“wearing her private lawyer hat”) and her private clients had the benefit of her intimate knowledge of many of the workings of her public agency regarding the very matter in which she was acting as a private partisan. Plainly, it is difficult for us to conceive of a situation more fraught with the inability of a public official to serve two masters ... than the instant matter....

We begin our analysis by noting that our legislature recognized, in section 112.311, that the conflict of interest standards applicable to elected officials should not be so restrictive as to discourage those most qualified to serve from seeking office. The statute states, in part:

(1) It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist.
(2) It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided.
(4) It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service.

In the Glasser case the appellant undertook the representation of her clients more than two years before her election to the city council, and what remained in the litigation, after her election, was the ruling on the city’s pending appeal of the order awarding her attorney’s fees, which was affirmed without opinion. Appellant’s involvement in the litigation, after her election, resulted in her having to abstain from only one item on the agenda, at only one meeting of the council.

Our standard of review, where the facts are not in dispute and the administrative agency is interpreting the law, is to determine if the agency “has erroneously interpreted a provision of law.” § 120.68(7)(d), Fla. Stat. (2002). We agree with appellant that the commission erroneously interpreted section 112.313(7).

Appellant’s representation in the Glasser case, to resolve the attorney’s fees and costs, after her election, did not create a “continuing or frequently recurring conflict” or one which would “impede the full and faithful discharge of’ her public duties. We cannot agree with the commission that there is any similarity between this ease and Velez v. Commission on Ethics, 739 So.2d 686 (Fla. 5th DCA 1999), in which a full time employee of the city health department had a part-time job consulting with a local private water system regarding compliance with environmental regulations. Unlike the present case, Velez involved an ongoing conflict. The commission has not cited any cases which would support a finding that appellant’s involvement in Glasser violated the statute. It is worth noting that even if appellant had withdrawn as counsel in Glasser, and pursued her fees by retaining other counsel, appellant would still have had the conflict which required her to abstain when the matter came before the counsel.

FANIZZA CASE

In the second case, while appellant was on the city council, the council granted a special exception to allow townhouses in a single family zoning district by a four-to-one vote, with appellant dissenting. After that meeting, several of the property owners opposing the change asked appellant to represent them in a certiorari petition to the circuit court. Appellant agreed and named herself as a party, as well as the others, because she lived in the same zoning district that was affected by the vote. Appellant did not charge these clients a fee.

She then filed a petition for writ of certiorari in the circuit court and requested attorney’s fees under section 57.105, Florida Statutes (2001), on the ground that there was no justiciable issue of law in light of the city attorney’s opinion that the council should not have allowed the rezoning. The city moved to dismiss the petition, which was denied, and appellant then wrote a letter to the attorney representing the city, stating that she and the other litigants would waive attorney’s fees and costs if the city would rescind the rezoning. The council, in a private session not attended by appellant, considered the offer but did not resolve the case.

The circuit court then granted the petition for certiorari, finding that the city failed to observe the essential requirements of law and due process. The court also found that the appellant did not have standing to be a party because she did not live close enough to the rezoned property. The court denied the request for attorney’s fees. The city did not appeal.

Appellant then filed a motion to tax costs, and appellant and the attorney representing the city agreed on $500 for costs, which did not have to go before the council. These costs were paid and reimbursed to the plaintiffs who had advanced the costs. Appellant received no attorney’s fees, and she has stated that she never intended to seek fees for herself; she intended to use the possibility of a fee award against the city as only a bargaining tool for settlement.

The commission, as we said earlier, found the same violation of section 112.313(7), in the order quoted above.

This case is more troubling than Glas-ser, because in Glasser appellant filed the petition for certiorari against the city about two years before she was elected, and very little remained after her election. In this- case she was a member of the council, and had voted on the matter, before she filed the petition for certiorari. As a lawyer, appellant should have known better.

We have concluded, however, that appellant’s involvement in the Fanizza case did not violate the statutory conflict of interest standards for public officials. Although appellant filed the petition for certiorari while she was a member of the council, her involvement in the litigation did not create a “continuing or frequently recurring conflict,” nor did it “impede the full and faithful discharge” of appellant’s public duties. All that this stipulated record shows is that the appellant, as a result of the conflict, was unable to attend one private session at which the city council and its lawyer discussed resolving the petition for certiorari. Although the conflict in this case appears greater than the conflict in Glasser, where the case against the city was filed more than two years before appellant was elected, this case did not actually require her to miss any portion of even one public meeting.

We reverse the final order of the commission in respect to both violations.

Reversed.

WARNER, J., and BAILEY, JENNIFER D., Associate Judge, concur.

      . R. Regulating Fla. Bar 4-1.11(a) provides:
      Representation of Private Client by Former Public Officer or Employee. A lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.


author: DAVIS, J. ERVIN, J.,

text:
    Patricia FULLER, Appellant, v. DEPARTMENT OF EDUCATION, Appellee.
    No. 1D05-1399.
    District Court of Appeal of Florida, First District.
    March 27, 2006.
    Rehearing Denied May 4, 2006.

      Jerry G. Traynham of Patterson & Traynham, Tallahassee, for Appellant.
    Daniel Woodring, General Counsel; Michael D. Kooi and Jason Fudge, Assistant General Counsels, and Margaret O’Sullivan Parker, Deputy General Counsel, Department of Education, Tallahassee, for Appellee.
   DAVIS, J.

Appellant, Patricia Fuller, appeals a final order of the Department of Education (Department), which dismissed her petition challenging the reclassification of her position with the Department from that of Career Service to Selected Exempt Service (SES), which in turn resulted in her termination from employment. Appellant presents two issues for review: (1) whether the Public Employee Relations Commission (PERC) has exclusive jurisdiction to make the determination of whether her position is managerial, confidential, or supervisory; and (2) whether the Department violated section 120.57(l)(i), Florida Statutes (2003), by modifying the findings of the administrative law judge (ALJ). On cross-appeal, the Department seeks a determination of whether the ALJ erred as a matter of law in not finding that appellant’s collective bargaining unit waived its right to challenge the reclassification by not complying with the procedure afforded in the collective bargaining agreement. We hold that PERC does not have exclusive jurisdiction over the classification of state employee positions. We nonetheless reverse because the Department modified the ALJ’s findings in violation of section 120.57(1)(Z). We affirm as to the issue raised on cross-appeal without discussion.

Effective July 1, 2001, appellant was reclassified from Career Service to SES pursuant to section 110.205(2)(x), Florida Statutes (2001). On January 7, 2003, after the reclassification of her position, the Department terminated her employment. Appellant filed a petition for a section 120.57 hearing, requesting a determination as to whether her position was properly reclassified from Career Service to SES. The ALJ found that her position had been improperly reclassified and recommended her reinstatement as a Career Service employee. Thereafter, the Department rejected the ALJ’s finding, which finding was supported by competent and substantial evidence (CSE), and instead determined that appellant’s position met the definition of a managerial employee. The Department then dismissed appellant’s petition.

On appeal, Appellant contends that the Department erred in reclassifying her position because PERC has exclusive jurisdiction to classify a state employee position as managerial. We disagree. Appellant disregards the provisions of section 110.2035, Florida Statutes (2001), wherein the legislature directed the Department of Management Services (DMS) to restructure the state’s personnel system. Section 110.2035, which was enacted during the same legislative session as section 110.205(2)(x), mandates DMS to create a position classification system for Career Service and SES positions. Most significantly, the classification system is to “be structured such that each confidential, managerial, and supervisory employee shall be included in the Selected Exempt Service.” § 110.2035(4), Fla. Stat. After DMS established the required classification system, the state agencies became responsible for the application of the system, and had the authority to reclassify established agency positions within the classes established by DMS. § 110.207(2)(b), Fla. Stat. (2001). Because the legislature has expressly directed DMS to reclassify positions in accordance with the parameters set forth in sections 110.2035 and 110.205(2)(x) and charged state agencies with applying the classification system, we must reject appellant’s argument that PERC has exclusive jurisdiction to determine the classification of state employees. Had the legislature intended otherwise, it would have set forth the reclassification provisions within the chapter over which PERC has authority, chapter 447, Florida Statutes.

Though the Department did not encroach upon PERC’s jurisdiction, reversal is required because the Department violated section 120.57(1)(Z), Florida Statutes, by modifying the ALJ’s findings. The parties presented much evidence describing the duties and responsibilities of appellant’s position, and the ALJ set forth detailed findings in a 33-page recommended order, ultimately determining that appellant’s position was improperly classified to SES because the position is neither managerial, confidential, nor supervisory. The Department rejected the ALJ’s finding that her position is not managerial and made a contrary finding. Based upon its substituted finding, the Department dismissed appellant’s petition, determining that she had been properly reclassified to SES. The Department reversibly erred in modifying the ALJ’s factual findings because the findings are supported by CSE and the adversarial hearing before the ALJ complied with the dictates of Reinshuttle v. Agency for Health Care Admin., 849 So.2d 434 (Fla. 1st DCA 2003). See § 120.67(1)(Z), Fla. Stat.

Accordingly, we reverse the Department’s order and remand with instructions that the Department adopt the ALJ’s recommended order.

REVERSED and REMANDED.

LEWIS, J., concurs; ERVIN, J., concurs and dissents with opinion.

ERVIN, J.,

concurring and dissenting.

I concur with the result reached by the majority. Although the majority does not expressly so state, it implicitly concludes that the Public Employees Relations Commission (PERC) retains no jurisdiction whatsoever, following the passage of the Service First Initiative, in the classification process of an employee it had previously classified as non-managerial and placed in a collective bargaining unit. Because I consider the majority’s interpretation of that legislation to be inconsistent with the legislative intent, I respectfully dissent. If the majority is correct, the only recourse available to an employee who is substantially affected by the reclassification of his or her position as a result, as here, of a termination notice is to challenge the employer’s classification decision by presenting evidence during a section 120.57 proceeding before either an administrative law judge or the Department of Education (DOE), disclosing that the employee’s duties have not changed since the date of PERC’s original classification. While I agree with the majority that the employee is required to present such evidence, the majority and I part company as to the quality or type of evidence necessary to satisfy that burden.

Although the employee is clearly entitled to a 120.57 proceeding, as this court recognized in Reinshuttle v. Agency for Health Care Administration, 849 So.2d 434 (Fla. 1st DCA 2003), I am of the opinion that PERC continues to share a role in the decision-making process. In my judgment, the only evidence necessary to resolve the question of an employee's current classification status is whether PERC, since the time it initially classified the position as non-managerial and placed it within a collective bargaining unit, has reclassified the position as managerial and removed it from the unit. If it has not, as the evidence in the case at bar discloses, I consider that the employee’s prior classification as a protected Career Service employee remains unaffected, and no other evidence is relevant to such determination, because, in my opinion, once PERC has made its classification decision, the employing agency thereafter lacks the statutory authority to unilaterally reclassify the position otherwise. My conclusion, I submit, is evident from an in pari materia construction of pertinent provisions of both the Service First legislation and the Public Employees Relations Act (PERA).

The Service First plan directs the Department of Management Services (DMS) to “establish and maintain a uniform classification plan applicable to all positions in the career service and [to be] responsible for the overall coordination, review, and maintenance of the plan.” § 110.207(1), Fla. Stat. (2001). “The employing agency [is also] responsible for the day-to-day application of classification rules promulgated by the department.” § 110.207(2). “Employing agency” is defined as “any agency authorized to employ personnel to carry out the responsibilities of the agency under the provisions of chapter 20 or other statutory authority.” § 110.203(25), Fla. Stat. (2001).. It is obvious that appellee, DOE, is the employing agency in the present case.

In implementing the broad classifications of employment designated by DMS, DOE is given the responsibility of reclassifying established positions under its control. § 110.209(2)(b), Fla Stat. (2001). If our analysis were solely restricted to an examination of the legislative changes enacted by Service First, I would have no difficulty in accepting the majority’s implicit conclusion that PERC no longer retains any authority in the reclassification process. I cannot, however, ignore pertinent provisions in PERA that strongly suggest the contrary; provisions that remain unimpaired following the passage of Service First, and particularly so in that section 110.205(2)(x), Florida Statutes (2001), by excluding managerial employees from participation in Career Service, specifically refers to “managerial employees, as defined in s. 447.203(4).”

PERA, chapter 447, Part II, Florida Statutes, was designed to implement the constitutional right of public employees to engage in collective bargaining, as expressed in article I, section 6 of the Florida Constitution, and to promote harmonious and cooperative relationships between government and public employees. § 447.201, Fla. Stat. (2001). Pursuant to section 447.207(6), Florida Statutes (2001), PERC has been delegated the power to “determine or approve units appropriate for purposes of collective bargaining.” It is also empowered to designate employees as “managerial” in the course of defining appropriate collective bargaining units. Employees so designated are not included within the definition of public employees under the provisions of section 447.203(3)(d), Florida Statutes (2001), and are excluded from participating as public employees in collective bargaining. When making a factual determination of whether an employee’s duties are managerial, PERC is explicitly directed to make such designation pursuant to the criteria established in section 447.203(4), defining managerial employees, and cross-referenced by section 110.205(2)(x).

The supreme court pointed out the distinction between the two categories of employment in Service Employees International Union, Local 16, AFL-CIO v. Public Employees Relations Commission, 752 So.2d 569, 572 (Fla.2000), as follows:

There are two basic categories of persons who work for the public: (1) employees in the ordinary sense of the word, and (2) managerial level employees (as well as various other specialized workers). Employees in the ordinary sense of the word are considered “public employees” under the Act and their right to collectively bargain is protected. Managerial level employees, on the other hand, are not considered “public employees” and their right to collectively bargain is not protected by the Act.

See also Coastal Fla. Police Benevolent Ass’n v. Williams, 838 So.2d 543, 547 (Fla.2003).

It is obvious that important property rights are conferred by one’s designation as a permanent Career Service employee. Among other things, such employees may be suspended or discharged only for cause, section 110.227, Florida Statutes (2001), and a statute that forbids dismissal only on such basis “creates a constitutionally protected interest in public employment.” Johnson v. Beary, 665 So.2d 334, 335 (Fla. 5th DCA 1995).

Following enactment of Service First, PERC’s powers to designate employees for the purpose of “determining] or approving] units appropriate for ... collective bargaining,” section 447.207(6), have remained intact, and I find nothing in the provisions of either PERA or Service First reasonably implying that an employing agency, once PERC has classified an employment position as non-managerial and placed it in a bargaining unit, may act as the sole decision-maker in reclassifying an established position. Because there is no express delegation of authority to DOE to unilaterally reclassify, the majority’s opinion can rest only on the conclusion that Service First has impliedly repealed the authority of PERC to classify. It is well recognized, however, that a repeal of a statute by implication is disfavored unless it is the only reasonable construction. See City of St. Petersburg v. Pinellas County Power Co., 87 Fla. 315, 100 So. 509, 510 (1924). Moreover, our “obligation is to adopt an interpretation that harmonizes two related, if conflicting, statutes while giving effect to both, since the legislature is presumed to pass subsequent enactments with full awareness of all prior enactments and an intent that they remain in force.” Palm Harbor Special Fire Control Dist. v. Kelly, 516 So.2d 249, 250 (Fla.1987). Under such circumstances,

[t]he rule of construction ... is that if the courts can by any fair, strict or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation, it is their duty to do so.

City of St. Petersburg, 100 So. at 510.

Applying the above rules to the statutes before us requires that we presume the legislature enacted Service First with full awareness of the authority it had previously delegated to PERC; therefore, I similarly assume, because of the language employed in the pertinent provisions of both acts, that the legislature did not intend to repeal in toto the powers of classification it previously conferred to PERC. In order to give both PERA and Service First a reasonable field of operation, I fully agree with the majority that the legislature has given DMS clear-cut authority to create and develop a classification employment system whereby all confidential, managerial and supervisory employees are placed within Selected Exempt Service, section 110.2035(1) and (4), Florida Statutes (2001), while the employing agency is empowered to classify particular positions pursuant to the legislative classifications and to reclassify established positions. § 110.207(2)(b). I am unable to conclude, however, that DOE is authorized to exercise its right to reclassify unilaterally. By reason of the powers PERC retained under PERA, PERC must be considered to share a role with the employing agency in the reclassification process. In order to ascertain the proper exercise of its role, I consider it important to examine how, before the enactment of Service First, PERC determined whether a change in an employee’s work responsibilities merited continued inclusion of that position within the bargaining unit.

Under such circumstances, a party to a collective bargaining agreement that desired to modify an employee’s classification because of a perceived change in the employee’s duties had the right to seek approval from. PERC for a reclassification of the position through the process- of a unit-clarification proceeding. PERC has described this procedure as follows in a case in which the public employer unilaterally attempted to remove eight employees from a certified bargaining unit by designating them managerial employees:

Where the job duties of an employee previously included in a bargaining unit have changed since certification of that bargaining unit to the extent that such employee is no longer a public employee, the proper procedure for the removal of the employee from the certified bargaining unit and from the statutory protections of Chapter 447, Part II, is a unit clarification proceeding.... This procedure guarantees a neutral examination of the facts on which the employer relies, and an opportunity for the affected employee to be heard before his constitutional right to join in the bargaining process is eliminated. School Board of Marion County v. PERC, 330 So.2d 770 (Fla. 1st DCA 1976). Otherwise, no employee could ever be certain of his or her status because an employer could summarily and without a hearing designate that person no longer a public employee and strip him or her of the protections afforded public employees by Section 447.301.

Hialeah Int’l Ass’n of Firefighters, Local 1102 v. City of Hialeah, 9 F.P.E.R. 14364, at 753 (1983).

Because of the conflicting provisions of PERA and Service First, I conclude that the legislature, aware of PERC’s preexisting authority to reclassify established positions after a change has occurred, must have presumed that an employing agency could avail itself of the unit clarification process by seeking PERC’s approval of any requested reclassification. In my judgment, once the employee presented evidence disclosing that no such approval had occurred, the employee’s burden was satisfied, and no additional evidence was necessary to resolve the issue of her employment classification.

I therefore concur in the result reached by the majority, but dissent as to the reasons given.

      . We note that section 110.207 was repealed effective June 30, 2002. Ch. 01-43, § 16, Laws of Florida. The section was in effect, however, when the Department reclassified appellant's position.

      . We do not hold that chapter 110 eliminates or repeals PERC’s authority to classify state employees for collective bargaining unit purposes pursuant to chapter 447, Florida Statutes.


text:
    Willard Timothy CARROLL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0653.
    District Court of Appeal of Florida, First District.
    March 27, 2006.
    Rehearing Denied May 4, 2006.
    Willard Timothy Carroll, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is dismissed as untimely. See Fla. R.App. P. 9.141(c)(4)(A).

ERVIN, PADOVANO and HAWKES, JJ., concur.