Weisbrod v. Florida Career Service Commission, KK-363

• Decision Date: 20 September 1979
• Docket Number: No. KK-363,KK-363
• Citation: 375 So.2d 1102
• Parties: Sondra WEISBROD, Appellant, v. FLORIDA CAREER SERVICE COMMISSION and Department of Health and Rehabilitative Services, Appellees.
• Court: Florida District Court of Appeals

Page 1102

375 So.2d 1102

Sondra WEISBROD, Appellant, v. FLORIDA CAREER SERVICE COMMISSION and Department of Health and Rehabilitative Services, Appellees.

No. KK-363.

District Court of Appeal of Florida, First District.

Sept. 20, 1979.

Rehearing Denied Nov. 6, 1979.

Jerry G. Traynham, of Patterson & Traynham, Tallahassee, for appellant.

Douglas E. Whitney, Orlando and Jim Smith, Atty. Gen. and David K. Miller, Asst. Atty. Gen., for appellees.

LARRY G. SMITH, Judge.

We must determine whether appellant's verbal conduct, unconnected with her employment, was properly found to constitute "just cause" for her dismissal from the Department of Health and Rehabilitative Services. We find that the Career Service Commission erred in so finding and reverse.

Appellant was employed by the Department of Health and Rehabilitative Services as a social worker and was serving in that capacity at the time of her suspension and the dismissal. She received a suspension letter dated June 17, 1977 from the subdistrict administrator notifying her of her suspension pending the outcome of investigation of a complaint from the Brevard County Sheriff's Department. By letter dated June 29, 1977, the administrator notified appellant of her dismissal "for conduct unbecoming a public employee and inability to perform assigned duties". Her appeal to the Career Service Commission resulted in entry of the opinion and order of the Commission finding that the agency "had good and just cause to take disciplinary action against the appellant", and it was ordered that her suspension and dismissal be sustained.

This cause is before us for review based entirely upon the written order of the Commission and various documents and exhibits introduced as evidence in the proceeding below. The Commission determined that the material issues to be decided were:

"Whether the appellant's conduct off-duty on the evening of May 27, 1977, constituted conduct unbecoming a public employee, and whether such conduct rendered the appellant unable to perform assigned duties as a Protective Services Worker." (Commission's Order June 7, 1978)

The events of May 27, 1977 which lead to appellant's discharge may be accurately summarized from the Commission's order and the documents in evidence. On the evening of May 27, 1977 at approximately 11:30 p. m., appellant was stopped for a "routine check" ¹ by a Cape Canaveral police officer as she was driving home from a dinner engagement. The officer determined that appellant was the subject of an outstanding bench warrant issued for her arrest and the Brevard County Sheriff's Department was notified. Within a short period of time, the appellant's automobile was surrounded by at least four officers in law enforcement vehicles, one of whom produced the bench warrant for her arrest. After it became apparent to appellant that she would be arrested on the bench warrant, and in all probability would spend the night, and perhaps the weekend in jail, she became somewhat hysterical and distraught. While in this emotional state she expressed her opinion of state government collectively and of the Brevard County Sheriff's Department separately.

No useful purpose would be served here by repeating the exact words used by appellant. It is sufficient to say that her choice of language could easily be characterized as profane and indecent, and that certain of the words used would probably head the list of words not spoken in polite company.

Upon being escorted to the Sheriff's Department appellant again addressed herself to the Sheriff's Department in general, demonstrating anew her fluidity of expression in terms vulgar and profane. ² These outbursts were witnessed by a citizen of the county who was authorized by the Sheriff to accompany the deputy sheriff who brought appellant in, observing his duties and performance. The Commission also found that appellant made an obscene gesture toward this citizen.

Although appellant identified herself as a state employee to the arresting officer, it is clear, as found by the Commission, that appellant was not on duty or performing any work function for the agency. At no time on this occasion did she act on behalf of the State of Florida or the agency, nor did she purport to act in the capacity of a public employee. There was no evidence of harassment or other adverse action on the part of the deputy sheriff in the execution of the bench warrant and arrest of the appellant.

Following this incident a report was made by the Sheriff of Brevard County by letter addressed to appellant's supervisor. ³ To the letter were attached various reports and documents including statements from the deputy sheriff, his superior officer, another deputy, and the citizen observer.

Based upon the series of events which have been substantially described in the foregoing paragraphs, the Commission found that the report of the incident by the Sheriff of Brevard County indicated to the Commission "that he was concerned", and "that his department's relationships toward the agency, the appellant, or the State of Florida might be affected"; that the agency by a preponderance of the evidence had sustained its burden of proof and had established the material allegations of the letter of dismissal; and that the evidence submitted by appellant was insufficient to establish any valid basis for overturning the agency's decision to take the disciplinary action against her. In addition, and most significantly, in paragraph 22 the Commission found as follows:

"22. No substantial evidence of any kind was presented by any party, which would be admissible over objection in a civil proceeding, that any conduct engaged in on May 27, 1977, by appellant, had any adverse impact upon the agency or the appellant's work performance. However, the Commission is of the opinion that it would have, had the appellant continued to work for the agency." (Order June 7, 1978) (emphasis supplied)

Appellant relies for reversal upon her contentions that the appellee, Career Service Commission, committed error in failing to properly and adequately rule upon all of appellant's proposed findings of fact; that the Commission committed error in failing to find as a matter of law that the facts did not constitute "just cause" for appellant's dismissal, and in applying an improper standard of proof to the case; that no competent evidence supports the rationale upon which the Commission chose to uphold appellant's dismissal; and alternatively, that the Commission's order failed to explicate the Commission's rationale for non-rule policy, and failed to expose and elucidate its reasons for discretionary action.

We find there is some merit in all of appellant's contentions. However, we focus primarily upon the question whether, as a matter of law, the actions of appellant upon which her dismissal was based are sufficient to constitute "just cause" for her dismissal. We hold that agency discretion under Section 120.68(12), Florida Statutes, does not extend to the discharge of appellant under the circumstances of this case, based upon opinion and supposition unsupported by any factual basis, that her acts may In the future affect her ability to carry out her assigned duties.

There is some basis for appellant's complaint that the Commission erred in failing to properly and adequately rule upon her proposed findings of fact. See McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Forrester v. Career Service Commission of Florida, 361 So.2d 220 (Fla. 1st DCA 1978); and Stuckeys of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976). Specifically, appellant requested and submitted proposed written findings that the bench warrant (issued for her nonappearance) which was the basis for her arrest and detention, was issued in error by the court, and that she was never properly notified to appear in court on the charge of having an expired inspection sticker on her automobile; that the charge of driving without a valid driver's license lodged against her on the evening in question was dismissed a few days after the events of May 27, 1977 (proposed finding paragraph 16); that no incident of this character had happened to appellant at any time before or after the May 27 event; that she had never before been arrested for any reason; and that before she left the Sheriff's Department on that evening she apologized to the other officers present for becoming hysterical and emotionally overwrought.

One of the bases for appellant's dismissal was "conduct unbecoming a public employee". This being so, there is no reasonable or rational explanation why the Commission failed to dispose of these proposed findings, since the alleged "conduct" of the appellant was at the heart of the controversy. We therefore reject the argument found in the Commission's brief that failure to accord any weight whatever to these circumstances can be excused on the grounds that they are "immaterial or irrelevant". See Forrester v. Career Service Commission of Florida, supra.

Appellee Career Service Commission in its brief urges us to affirm its decision on the grounds that the public may demand high standards of conduct from government employees, and may dismiss employees who "embarrass their agencies", or whose dismissal is necessary "to maintain the morale and reputation of the department". Appellee cites Kennett v. Barber, 31 So.2d 44 (Fla.1947), and City of Miami v. Kellum, 147 So.2d 147 (Fla. 3rd DCA 1962). Neither the cases cited nor appellee's argument are appropriate. There is no finding that appellant's conduct in this instance did "embarrass" the agency, nor is there any finding that her dismissal was necessary "to maintain the morale and reputation of the department". There is likewise no finding that appellant was guilty of misconduct which "hinders its (the Department's) program". ⁴ To the contrary, the express finding of ...