City of Miami v. Jervis, 61-279

• Decision Date: 03 April 1962
• Docket Number: No. 61-279,61-279
• Citation: 139 So.2d 513
• Parties: CITY OF MIAMI, a municipal corporation in the State of Florida; M. L. Reese, City Manager, Director of Public Safety, City of Miami; and R. Frazier Potts, Stuart Morrison, Richard F. Helken, Les Perkins and Nora Womble, as members of the Civil Service Board, City of Miami, Appellants, v. Thomas JERVIS, Jr., Robert Bedford Lemmons and Jay William Humphrey, Appellees.
• Court: Florida District Court of Appeals

Page 513

139 So.2d 513

CITY OF MIAMI, a municipal corporation in the State of Florida; M. L. Reese, City Manager, Director of Public Safety, City of Miami; and R. Frazier Potts, Stuart Morrison, Richard F. Helken, Les Perkins and Nora Womble, as members of the Civil Service Board, City of Miami, Appellants, v. Thomas JERVIS, Jr., Robert Bedford Lemmons and Jay William Humphrey, Appellees.

No. 61-279.

District Court of Appeal of Florida, Third District.

April 3, 1962.

Edward J. Fitzpatrick, Acting City Atty., and Charles K. Allan, Asst. City Atty., for appellants.

Cowart & Dollar, Miami, for appellees.

Before HORTON, BARKDULL and HENDRY, JJ.

PER CURIAM.

This is an appeal to review the order of the lower court quashing the findings and recommendations of the Civil Service Board and judgment based thereon of the City Manager of the City of Miami, who is also the Director of Public Safety.

Appellees, all employed as policemen in the Department of Public Safety of the City of Miami, Florida, were suspended from their employment by the City Manager of the City of Miami, based upon findings and recommendations of the Civil Service Board, after a hearing before the said board, pursuant to the applicable provisions of the Charter of the City of Miami.

The hearing before the administrative tribunal was concerned with the charges that appellees were guilty of 'conduct unbecoming an employee', and that they had refused to sign a waiver of immunity pursuant to an investigation before the Grand Jury of the same incident out of which arose the charges before the board. After the adverse findings and judgment, the appellees petitioned the lower court for a writ of certiorari on the ground that the proceedings before the administrative tribunal departed from the essential requirements of law.

The lower court in its final order stated:

'This Court has reviewed the record of the hearing before the administrative tribunal. While recognizing that an administrative board is not required to adhere to the strict rules of evidence and procedure of a court of record, there is a certain standard of basic fairness which must be met if due process is to prevail.

'As petitioners were charged with 'conduct unbecoming an employee' for their refusal to sign a waiver of immunity, under § 13, Rule 16 C.S. Rules and Regulations of the City of Miami, in an investigation by the Grand Jury of the same incident out of which arise these charges before the board, testimony was admitted that they had in fact appeared before the Grand Jury and refused to sign a waiver of immunity but offered voluntarily to testify after the hearing before the Civil Service Board. Their refusal was reputedly based upon a fear that signing such a waiver and testifying at that time might prejudice them in their hearing before the Civil Service Board. Upon refusal to sign the waiver, they were dismissed as witnesses by the Grand Jury. The Civil Service Board ultimately dismissed the charge against them on this ground, but only after extensive discussion of their failure to sign the waiver. This extensive discussion seems to have impressed at least one member of the board with the notion that petitioners had refused to testify at all. The significance of such impression will become apparent during the course of this opinion.

'There was introduced evidence of the refusal of all three petitioners to submit to a lie detector test, although as a matter of fact one of the officers did ultimately submit thereto. Testimony was introduced that in such test there was

"Deception indicated by the emotional response of the subject to question 27, 28, 29, 30, 31, 32. It is therefore assumed that this subject is not telling the truth and is criminally involved in the offense listed.' [Emphasis added]

There was extensive discussion as to the admissibility of any reference to lie detector tests. The chair ruled against such a reference but was overruled by the other members of the board. Later the chair ruled against the admission of this particular test and was at first sustained by the board, but later was overruled and the results of the test were admitted.

'The complaining witness also testified that he submitted to a lie detector test but there was no testimony as to the results thereof, the implication being, in light of subsequent remarks in the record, that he had nothing to hide and was telling the truth.

'The two officers who had not already submitted to the polygraph tests were requested to do so 'voluntarily' in order that the board might have the benefit of the results. One of the board members stated to Petitioner Lemmons:

"It is a tough job finding out what the truth is. I just don't think I am smart enough to find out--Would you consider volunteering now to take, not one lie detector test, but three different tests?'

'When counsel for the petitioner advised against it, the attorney for the City of Miami stated:

"This is a fact finding board * * * why don't a man take a lie detector test?'

'When petitioner still refused to take the test--as the entire board conceded he had a right to do--the same board member, who had formerly acknowledged his inability to arrive at the truth without a test stated:

"You cannot escape the fact the machine exists and if you do not submit yourself to it you are creating somewhat of a presumption in our minds, you cannot argue us out of this presumption.'

'Thereupon another member of the board took up the questioning with:

"* * * then I would certainly want the world to know my side of it * * * Therefore, I can't understand why you have not made some sort of a statement to the Grand Jury.'

'At this time the charge concerning the refusal to sign a waiver before the Grand Jury had already been dismissed as not warranted by the evidence.

'In interrogating the other officer, Jervis, and attempting to persuade him to take the test, the same board member, first above referred to, stated:

"I want to point out one other thing with regard to this lie detector. This is my personal statement. I don't know whether it reflects the sentiment of this Board, but I think whether you consent or do not consent to be tested by the lie...