Becker v. Merrill

• Decision Date: 19 December 1944
• Parties: BECKER v. MERRILL, City Manager, et al.
• Court: Florida Supreme Court

20 So.2d 912

155 Fla. 379

BECKER v. MERRILL, City Manager, et al.

Florida Supreme Court

December 19, 1944

Rehearing Denied Feb. 20, 1945.

Appeal from Circuit Court, Broward County; Jos. S. White judge.

John D. Kennedy, of Fort Lauderdale, for appellant.

T. O. Berryhill, of Fort Lauderdale, for appellees.

THOMAS, Justice.

Appellant sought in mandamus rescission of the city manager's order dismissing him from the office of Chief of Police of Fort Lauderdale and the Civil Service Board's order sustaining the manager's action. Besides reinstatement he also prayed for payment of 'back salary.' Attached to his petition and by appropriate words made a part of the alternative writ was a transcript of testimony taken with respect to the charges preferred against him.

The circuit judge granted a motion to quash the writ because he concluded there was evidence sufficient to sustain charge Number 7 as it was elaborated upon in paragraphs A and B of the bill of particulars to that charge. We shall, therefore confine our discussion to the misconduct set out in this formal presentation as detailed in these sections of the particulars.

The city manager discharged appellant under Rule 8, Section 1, of the Civil Service Rules for 'conduct unbecoming to a police officer * * * at the scene of the accident, which occurred on January 26, 1944, on West Broward Boulevard, Fort Lauderdale, Florida.' Substance of the particulars is that the appellant, in uniform, was driving a city-owned car (paragraph A) and was involved in a wreck (paragraph B) 'while under the influence of alcoholic liquors.'

The Civil Service Rules introduced by stipulation contained eighteen 'causes for removal,' among them the one upon which appellant's dismissal was based--'conduct unbecoming an officer.' When the Civil Service Commission granted appellant's motion for a bill of particulars, the manager introduced the subject of intoxicating liquors by charging appellant with having participated in an accident and having driven a municipally-owned automobile while under the influence of intoxicants and while wearing the uniform of his office.

It seems in this state of the record that we must decide first whether a police chief may be said to be guilty of conduct unbecoming an officer if he has an accident while wearing the insignia of his office, at the time driving a city-owned car and being under the influence of intoxicants.

There is no need to confuse the issue by a discussion of intoxication, as such, because this court long ago recognized the difference between the condition of a person intoxicated and one under the influence of intoxicating liquors. The, too, the appellant was not charged with intoxication, although such a ground for dismissal was incorporated in Rule 8, supra. The important question is: Would involvement in a mishap or operation of a city car by a police chief in uniform and under the influence of liquor constitute, if proved, conduct unbecoming an officer? Familiar as is the phrase 'conduct unbecoming an officer,' there seem to be few cases on the subject, and none has been cited where a precise definition was undertaken. It was said by the Supreme Court of New York, Appellate Division, in People ex rel. Dougan v. Greene, 97 A.D. 404, 89 N.Y.S. 1067, 1068, that the term is an elastic one 'depending upon individual conceptions of what belongs to the office of a policeman.' The Supreme Court of Pennsylvania in Souder v. City of Philadelphia, 305 Pa. 1, 156 A. 245, 247, 77 A.L.R. 610, held that a police captain was guilty of such conduct when in an investigation of his remarkably large personal fortune 'he answered * * * in a way not to establish his freedom from wrong by full explanation * * * and, when summoned by his superior on specific charges * * * he answered not at all.'

Whether we agree that the instance described in the latter case, amounted to misbehavior of such character, we do approve what the court said about the responsibilities of a police officer. Having a position of trust and civic responsibility, he should so demean himself as to merit the confidence and respect of the public and of his fellows. Only by behavior of the best quality can he hope to command discipline among those over whom he has authority. As the Pennsylvania court so aptly said, 'no act of wrongdoing should attach itself to him' and 'he should [be] keen to see that no taint of evil doing [attaches] itself to him * * *.'

We subscribe to the view that a chief of the police department, in uniform, does not conduct himself in a manner befitting his high position if while under the influence of alcoholic stimulants he is involved in an accident, at the time actually driving a vehicle belonging to the one to whom he owes his allegiance, the municipality. Such behavior is not calculated to instill respect for him in his subordinates or to win for himself or his force the confidence of the general public. It is indecorous and unbecoming to his high office. This is our view about the demeanor charged.

We proceed to the evidence, and shall explore it only to the extent of determining whether there was any substantial evidence to substantiate the charges, refraining from weighing that testimony or comparing it to testimony offered in refutation. Hammond v. Curry, 143 Fla. 245, 14 So.2d 390.

From appellant's own statements we learn that he played golf at the country club, had two drinks, took a shower, entered the car and began his drive into the city. He was in uniform. In reply to a question from his counsel: 'You considered yourself on duty?' he replied: 'Twenty-four hours a day, subject to call all the time.' As he neared the city he observed a car approaching with but one light burning. Back of it he saw another light flashing. He evidently proceeded without taking proper caution, and 'the first thing [he] knew [he] clipped the negro's car and * * * careened off to the right trying to get control of the car, swerved back on the highway and then went about twenty-five feet off the highway.' By other witnesses it was said that there was the odor of liquor about appellant, his voice was thick, his speech was incoherent, his car traveled 126 feet after the impact and left the highway twice before stopping in the sand. Several soldiers who were passing at the time were injured.

Our examination of the record convinces us there was 'a legal and reasonable exercise of administrative judgment predicated upon required procedure and appropriate evidence' and that there was no "abuse of delegated authority or arbitrary or unreasonable action." Nelson v. Lindsey, 151 Fla. 596, 10 So.2d 131, 134. We are constrained to hold that there was evidence, even though controverted, to support the charge of improper conduct of such degree as to be denominated 'unbecoming.'

The appellees contend that appellant could have no judicial relief because of Section 46 of Chapter 21233, Laws of Florida, Special Acts of 1941, providing that anyone who submits himself to the provisions of the act (creating a civil service system) waives 'any right to take his dispute or disagreement to the Court of law or equity.' This section, coupled with Section 37, precludes, they contend, any action in a court of this state. The relevant part of the latter is that upon hearing of an appeal by the board from an order of dismissal 'the Board shall make the final decision disposing of the appeal, which decision shall not be reviewable by any Court.' Complete answer to this assertion may, we think, be found in the fifth amendment of the Constitution of the United States and Section 12 of the Declaration of Rights of the Constitution of Florida. By both, no person shall be 'deprived of life, liberty, or property, without due process of law.'

Affirmed.

BUFORD, C. J., and BROWN and SEBRING, JJ., concur.

On Petition for Rehearing.

BROWN, Justice.

In the petition for rehearing it is very earnestly insisted that the court in its original opinion departed from the opinion in the recently decided case of Hammond v. Curry. I do not think so.

The language used in the majority opinion in the case of Hammond v Curry, 153 Fla. 245, 14 So.2d 390, 391, was in substance the same as that used in the opinion in this case. In the Hammond case, it was said:

'We are not unaware of the rule found in some of the earlier cases notably, State ex rel. Lamar v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410, restricting the power of the court in its examination into proceedings for the removal of officials, however, the rule has been relaxed to the extent that the courts will explore the record to...