Scherer v. Davis

• Decision Date: 07 June 1982
• Docket Number: No. TCA 79-0885.,TCA 79-0885.
• Citation: 543 F. Supp. 4
• Parties: Gregory Scott SCHERER, Plaintiff, v. Ralph DAVIS, individually; Chester Blakemore, officially as Director of the Department of Highway Safety and Motor Vehicles; and J. Eldredge Beach, individually and as Director of the Florida Highway Patrol, Department of Highway Safety and Motor Vehicles, Defendants.
• Court: U.S. District Court — Northern District of Florida

543 F. Supp. 4

Gregory Scott SCHERER, Plaintiff, v. Ralph DAVIS, individually; Chester Blakemore, officially as Director of the Department of Highway Safety and Motor Vehicles; and J. Eldredge Beach, individually and as Director of the Florida Highway Patrol, Department of Highway Safety and Motor Vehicles, Defendants.

No. TCA 79-0885.

United States District Court, N. D. Florida, Tallahassee Division.

July 15, 1981.

Order Amending Judgment June 7, 1982.

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Ben R. Patterson, Patterson & Traynham, Tallahassee, Fla., for plaintiff.

Pamela L. Lutton, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., for defendants.

MEMORANDUM OPINION AND ORDER

STAFFORD, Chief Judge.

Plaintiff Gregory Scott Scherer brought this complaint pursuant to the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Declaratory and injunctive relief are sought pursuant to 28 U.S.C. §§ 1651, 2201, and 2202. The court has jurisdiction under 28 U.S.C. §§ 1343 and 1331. Scherer seeks monetary damages, as well as injunctive and declaratory relief, for the defendants' failure to provide him with either pre-termination or post-termination due process; he also seeks a declaration that Section 110.061, Florida Statutes and its implementing rules and regulations are unconstitutional because violative of due process in their failure to safeguard an employee's rights prior to termination, to guarantee back pay or reinstatement for wrongful termination, and failure to provide expeditious post-termination hearing and decision.

On April 6, 1981, this case was tried before the court without a jury. Fed.R.Civ.P. 39(b). In accordance with Federal Rule of Civil Procedure 52(a), the court makes the following findings of fact relevant to the disposition of this case.

Findings of Fact

Gregory Scott Scherer was an employee of the State of Florida Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, Troop A, employed as of January 13, 1975, holding the position of a Radio-teletype Operator in Pensacola, Florida. Plaintiff Scherer had attained permanent status within the Career Service System of the State of Florida and had been consistently rated a satisfactory employee. His gross pay as of October 25, 1977, on a monthly basis, was seven hundred fifty-three dollars and thirty-three cents ($753.33).

During the months of September and October of 1977, the Executive Director of the Department of Highway Safety and Motor Vehicles was Ralph Davis. Davis continued as Executive Director of the agency until September 30, 1978, when he was succeeded by Chester Blakemore. The Director of the Florida Highway Patrol (FHP) in 1977 and continuing to the present was and is Colonel Eldredge Beach. The policy of the Department of Highway Safety and Motor Vehicles required Beach and Davis to approve each and every suspension or dismissal of an employee of the FHP, including the dismissal of Scherer. Beach and Davis approved the plaintiff's dismissal from his employment effective October 25, 1977.

On September 9, 1975, the Department of Highway Safety and Motor Vehicles had adopted a policy on the subject of dual employment and compensation, Policy Number 009. The policy was signed by Ralph Davis. The purpose of the policy was to require approval of outside employment in order to avoid a conflict of interest. Pursuant to the requirements of that policy, on August 26, 1977 Scherer requested that his troop commander, Captain K. S. Sconiers, approve Scherer's outside employment as an Escambia County Sheriff's Reserve Deputy. Sconiers told the plaintiff he doubted that approval would be granted, but by memorandum dated September 1, 1977, Captain Sconiers notified the plaintiff that he had permission to accept parttime employment as an Escambia County Sheriff's Reserve Deputy. The memorandum further stated that such permission would be rescinded "Should this employment interfere in any way with your duties with this department." Sconiers claims his secretary was supposed to hold the September 1 letter until he had "checked with Tallahassee."

Relying on the letter of approval, Scherer purchased a uniform and a pistol and was employed parttime as an Escambia County Sheriff's Reserve Deputy assigned with other such officers to guard the set for the movie "Jaws II." By memorandum dated September 23, 1977, Capt. Sconiers informed the plaintiff that "... the department feels that it would be of the best interest to our department for you not to accept this employment; therefore, your request ... is denied at this time."

On October 3, 1977, Sgt. W. A. Clark informed Lt. C. C. Wiggins that plaintiff was continuing to work as a reserve deputy and recommended Scherer's termination from the FHP. On October 4, 1977, Lt. Wiggins informed Capt. Sconiers of plaintiff's continuance to work as a reserve deputy and recommended Scherer's suspension or dismissal. On October 7, 1977, Sgt. Clark informed Capt. Sconiers that he had advised Scherer he was violating instructions and Scherer had responded that he had invested too much money in uniforms to give up his parttime work.

Sconiers then wrote to Col. J. E. Beach on October 12, 1977, attaching plaintiff's letter of request, the captain's own letters approving the request and rescinding the approval, Sgt. Clark's and Lt. Wiggins's memos, and recommending that plaintiff Scherer be suspended for three days for violation of the department's dual employment policy. On October 18, 1977, Lt. Wiggins ordered Scherer to terminate his employment as a reserve deputy and on the same date Scherer wrote to Capt. Sconiers explaining that he felt there was no reason for him to resign his outside employment because it did not interfere with his work as a radio operator for the FHP. Wiggins also wrote to Sconiers on that date saying Wiggins and Clark had spoken with Scherer and Scherer was unable to see any interference in his FHP duties which was caused by his reserve deputy duties. Sconiers testified at trial that Major A. P. Floyd, Deputy Inspector of the FHP, had caused him to not approve Scherer's outside employment because Floyd thought that the possibility of Scherer being subpoenaed in connection with his reserve deputy duties might conflict with his duties as a radio operator at the FHP.¹ No one ever identified the conflict to plaintiff; Wiggins testified he didn't know what the conflict was. Wiggins and Clark evidently asked the plaintiff only what his intentions were concerning his outside employment. On October 18, 1977, Sconiers forwarded to Beach the two letters of that date from Wiggins and Scherer's letter of that date, but mistakenly dated August 18, 1977.

By certified letter dated October 24, 1977 and received by plaintiff on October 25, 1977, Scherer was terminated from his FHP employment effective October 20, 1977. At no time prior to the letter of termination was the plaintiff given notice in writing of a proposed discharge or an opportunity to respond verbally or in writing to the official charged with making the termination decision, the defendant Beach. At no time prior to October 25, 1977, was the plaintiff notified of any right that he might have to respond to Col. Beach's letter of dismissal. There is no evidence of any affidavit or statement given or made to Beach or Davis which showed or purported to show that the plaintiff's outside employment conflicted in any manner with his duties as a radio-teletype operator for the Florida Department of Highway Safety and Motor Vehicles, Division of Florida Highway Patrol, although the conflict has purportedly been identified by Beach's staff. In addition, the choice to dismiss rather than suspend Scherer, is in violation of the department's own disciplinary guidelines.

On November 10, 1977, the plaintiff, pursuant to the Florida statutory scheme providing for a hearing on dismissal for Career Service Employees, filed an appeal against his dismissal with the Florida Career Service Commission, claiming he had been dismissed without just cause because his dismissal was pursuant to a rule not validly adopted by the department. On November 18, 1977, the plaintiff was notified by Dorothy B. Roberts, Appeals Coordinator, that his appeal had been received and that the Department of Highway Safety and Motor Vehicles had been requested to provide certain information relative to his employment status to enable the Career Service Commission to determine the plaintiff's appeal rights. By letter dated December 8, 1977, signed by Miles R. Dean, from Conley M. Kennison, State Personnel Director, Mr. Scherer was notified that his appeal was in order and would be heard by the Career Service Commission. Scherer's attorneys did not request an expedited hearing.

On or about April 19, 1978, and pursuant to the Administrative Procedures Act, the plaintiff filed a petition for a rule challenge to Policy Number 009 of the Department. On June 28, 1978, the challenged Policy Number 009 on the subject of dual employment and compensation was declared invalid. The Department of Highway Safety and Motor Vehicles did not appeal the invalidation of Policy Number 009 to the District Court of Appeal, and the determination that the Policy Number 009 as applied to plaintiff was an invalid rule became final on July 28, 1978.

By letter dated July 13, 1978, signed by Dorothy B. Roberts, Appeals Coordinator for the Career Service Commission, the plaintiff was notified that his appeal against dismissal would be heard by the Career Service Commission on August 4, 1978. On July 24, 1978, the Department of Highway Safety and Motor Vehicles gave notice to the plaintiff of additional reasons for the plaintiff's dismissal of October 25, 1977.

Section 110.061, Florida Statutes provides that the Career Service Commission may, "in its discretion," order reinstatement for termination of...