City of Umatilla v. Public Employees Relations Com'n

• Decision Date: 29 September 1982
• Docket Number: No. 81-1124,81-1124
• Parties: CITY OF UMATILLA, etc., Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, et al., Appellees.
• Court: Florida District Court of Appeals

Page 905

422 So.2d 905

CITY OF UMATILLA, etc., Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, et al., Appellees.

No. 81-1124.

District Court of Appeal of Florida,

Fifth District.

Sept. 29, 1982.

Rehearing Denied Dec. 9, 1982.

Richard W. Hennings of Cauthen, Robuck & Hennings, P.A., Tavares, for appellant.

Vernon Townes Grizzard, Deputy Asst. Gen. Counsel, Public Employees Relations Com'n, Tallahassee, for appellee Public Employees Relations Com'n.

Gene "Hal" Johnson, Tallahassee, for appellees Florida Police Benev. Ass'n, Inc., and Roggelin.

ORFINGER, Chief Judge.

The City of Umatilla appeals from an order of the Public Employees Relations Commission overturning the findings of its hearing officer and ordering the reinstatement of a police officer because of his discharge for protected union activity. We reverse.

Patrolman Eugene Roggelin was suspended from the Umatilla police force for alleged "insubordination." Following a hearing held at his request before a complaint review board ¹ which recommended that he resign or be fired, the City discharged him.

Roggelin and the Volusia County Police Benevolent Association (PBA) of which Roggelin was a member, filed an unfair labor practice charge with Public Employees Relations Commission (PERC), alleging that Roggelin had been discharged because of his involvement in protected union activities; that the disciplinary action had been motivated by anti-union animus and not for the reasons specified in the discharge notice, and that the City had therefore violated sections 447.501(1)(a) and (b), Florida Statutes (1979). ²

An evidentiary hearing was conducted before a PERC hearing officer who issued a recommended order making findings of fact and concluding that the unfair labor practice charge be dismissed. In his order, the hearing officer found that Roggelin was an enthusiastic, vocal and active PBA supporter, and that his pro-PBA views were well known to all members of the police department and senior city officials. The hearing officer found that Roggelin was a problem police officer in both his individual capacity and as a PBA representative, and that the City had ample non-prohibited grounds for his suspension and discharge. The hearing officer noted that the basic issue in the case is whether the City was motivated by anti-union animus in suspending and discharging Roggelin and he answered this issue by finding that the burden on the charging party of showing that the protected activities were a motivating factor in the City's decision to terminate employment was not met here. He concluded that while Roggelin did engage in protected activity as a PBA representative, this protection did not cover his disrespectful and insubordinate acts toward the chief and assistant chief.

Acting on exceptions to the hearing officer's report, PERC reversed that ruling and ordered Roggelin's reinstatement with back pay and attorney's fees. The commission rejected the hearing officer's findings in several areas, and also rejected his ultimate finding on the issue of motivation. The commission said that the hearing officer had failed to make a number of relevant findings of evidentiary fact from undisputed testimony. The commission also stated that the hearing officer failed to apply the appropriate standard of proof, specifically failing to take into account circumstantial evidence which the commission felt bore heavily on the issue of motivation for discharge. The commission rejected the hearing officer's ultimate finding of motivation and found that indeed, the City had violated section 447.501(a) and (b).

The primary issue for review is whether the Commission erred in substituting its own findings of fact for those of the hearing officer. Appellant contends that it did. Put another way, was there substantial competent evidence to support the findings of fact of the hearing officer, and if so, did the agency, not having heard the case, have the right to reject those findings and substitute its own? ³

An agency has no power to reject or modify the hearing officer's findings of fact unless the agency first determines that the findings were not based upon competent substantial evidence or that the proceedings in which the findings were based did not comply with the essential requirements of the law. See International Brotherhood of Painters and Allied Trades v. Anderson, 401 So.2d 824 (Fla. 5th DCA), rev. denied, 411 So.2d 382 (Fla.1981). The commission here found that some of the hearing officer's findings, including that of motivation, were not based on competent substantial evidence and rejected those findings, substituting its own.

As we see it here, the Commission drew different inferences from the disputed or admitted facts and therefore arrived at different conclusions. The hearing officer found that non-prohibited grounds were the substantial or motivating causes for the city's action. The Commission discarded this finding, concluding that the union activity was the real motivation for the discharge. We hold that PERC did not follow established principles of law when it discarded findings of its hearing officer which were supported by competent substantial evidence. That PERC might have reached a different result had it heard the evidence does not authorize it to discard the hearing officer's findings. See Gruman v. Department of Revenue, 379 So.2d 1313 (Fla. 2d DCA 1980); Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 115 (Fla. 1st DCA 1977).

The Commission relies heavily on McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), claiming special insight into the facts and conclusions which determine the issues of motivation here. McDonald commented on the apparent conflict between section 120.57(1)(b)9 (the scope of review by the agency) and section 120.68(10) (the scope of review by the court of the agency's substituted findings of fact), and said In determining whether substantial evidence supports the agency's substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer's contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight.

At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer's findings in determining the substantiality of evidence supporting the agency's substituted findings.

McDonald, 346 So.2d at 579.

We need not decide whether we agree with McDonald's analysis of the interplay between sections 120.57(1)(b)9 and 120.68(10). McDonald adopts the standard of judicial review found in Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), without commenting on the obvious differences between the federal statute ⁴ and section 120.57(1)(b)9, the statute dealing with the scope of agency...