Department of Agriculture and Consumer Services v. Edwards

• Decision Date: 05 May 1995
• Docket Number: No. 93-2429,93-2429
• Citation: 654 So.2d 628
• Parties: 20 Fla. L. Weekly D1092 DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. Jerry EDWARDS, Appellee.
• Court: Florida District Court of Appeals

Page 628

654 So.2d 628

20 Fla. L. Weekly D1092

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. Jerry EDWARDS, Appellee.

No. 93-2429.

District Court of Appeal of Florida First District.

May 5, 1995.

Floyd A. Hennen, Florida Dept. of Agriculture and Consumer Services, Tallahassee, for appellant.

Joan Stewart, Florida Police Benevolent Ass'n, Inc., Tallahassee, for appellee.

JOANOS, Judge.

The Department of Agriculture and Consumer Services (Department) appeals a final administrative order of the Public Employees Relations Commission (Commission) directing the Department to reinstate appellee, Jerry Edwards, to his position as a law enforcement officer with the Department's Inspection Division. The issues raised by the Department are: (1) whether this cause was rendered moot due to the circuit court's dismissal of the related criminal charge against Edwards; (2) whether the hearing officer should have treated the tape recording incident giving rise to Edwards' dismissal and the criminal charge against him, as a criminal investigation, rather than as a disciplinary proceeding; and (3) whether the hearing officer's finding that Edwards intentionally recorded his supervisor's oral communications requires reversal of the Commission's order. We affirm in part and reverse in part.

Edwards had been employed by the Department as a law enforcement officer since September 6, 1980. At all times pertinent to this appeal, Edwards held permanent status in the State Career Service system. For the six years preceding the incident at issue in this case, Edwards worked at Station 14 located at State Road 301 and U.S. Highway 1, near the Florida/Georgia line. On June 15, 1992, Edwards learned that he was to be transferred to Station 16, located at Interstate 95 near Yulee, Florida. ¹ On June 19, 1992, Edwards discussed the transfer with Sergeant Helen Burch, his immediate supervisor at Station 14. During this conversation, Edwards advised Sergeant Burch that he intended to file a grievance about the transfer. On Friday, June 26, 1992, Edwards's last work day at Station 14, he showed Officers Spurlock and Van Zant a voice-activated tape recorder. Edwards told Officer Spurlock that he intended to use the tape recorder "to get the lead workers and supervisors." Officer Van Zant said Edwards had heard rumors that his transfer to Interstate 95 was motivated by Scott Gearis's intent "to straighten him [Edwards] out." Edwards told Officer Van Zant that he intended to tape what was said and write it down at a later date. Officer Spurlock warned Sergeant Burch that Edwards intended to record his supervisors' statements; Officer Van Zant told the sergeant that Edwards intended to record Scott Gearis. Sergeant Burch then contacted Captain Pittman, and relayed the information received from Officers Spurlock and Van Zant. Lieutenant Wells was assigned to investigate the allegations concerning Edwards.

On Monday, June 29, 1992, Edwards reported for his first duty day at Station 16. His shift began at 3:00 p.m. Lieutenant Wells entered the station at 4:00 p.m., posing as a citizen who wished to bring horses into the state. He observed a bulge in Edwards's right shirt pocket, which he concluded matched the dimensions of a tape recorder. Lieutenant Wells then met Major O'Brien and Captain Pittman at a predetermined locale, removed from Station 16. O'Brien and Pittman both had observed what they believed to be a tape recorder in Edwards's shirt pocket. At that point, Lieutenant Wells advised the others that he believed there was probable cause to question Edwards concerning whether he had a concealed tape recorder on his person.

The three men returned to Station 16. Upon their arrival, Captain Pittman asked Edwards to step into Sergeant Taylor's office. Major O'Brien and Sergeant Taylor were already in the office. Lieutenant Wells followed Edwards and Captain Pittman into the room. After some small talk, during which Major O'Brien asked Edwards whether he had received a response from his grievance, Lieutenant Wells identified himself and asked Edwards if he had a tape recorder. Edwards responded affirmatively, and immediately produced the tape recorder. Lieutenant Wells ascertained the tape recorder was turned on, then placed Edwards under arrest for violation of section 934.03, Florida Statutes, which prohibits, among other things, the interception of oral communications. Edwards was handcuffed and transported to the county jail.

On September 24, 1992, the Department terminated Edwards's employment as a law enforcement officer for the Inspection Division. As grounds therefor, the Department charged that Edwards violated agency rules, regulations, policies or procedures, and exceeded his law enforcement authority. In his recommended order, the hearing officer found Edwards had reason to believe that Captain Pittman's approach was disciplinary in nature, and that Edwards turned the tape recorder on for the specific purpose of recording their conversation. Citing to State v. Inciarrano, 473 So.2d 1272, 1275 (Fla.1985), the hearing officer found the controlling question was whether law enforcement personnel conducting a disciplinary investigation of another law enforcement officer have a reasonable expectation of privacy. The hearing officer concluded that in the public sector, an investigator or law enforcement supervisor does not possess a reasonable expectation of privacy when interrogating a law enforcement officer under circumstances that can lead to disciplinary action. The hearing officer further concluded the Department failed to demonstrate that Edwards intercepted an "oral communication" as defined by statute. Based on that determination, the hearing officer recommended that Edwards' dismissal be vacated, and that he be awarded back pay, costs, and reasonable attorney's fees.

The Commission stayed its ruling on the recommended order, pending the outcome of the criminal charges against Edwards. On May 28, 1993, the Nassau County Circuit Court issued an order granting Edwards's motion to dismiss the information, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state filed a notice of appeal of the order dismissing the criminal charge against Edwards. Thereafter, the Commission issued its final order, adopting the hearing officer's findings of fact. ² The Commission held that because a court of competent jurisdiction had ruled there were insufficient grounds to support the charge that Edwards violated section 934.03(1), the Department did not have cause to discipline Edwards for this rule violation. The Commission further found that Edwards could not be disciplined for exceeding his law enforcement authority, because the evidence demonstrated he was not exercising any law enforcement authority when he intercepted any communications.

During the pendency of this administrative appeal, a different panel of this court reversed the circuit court's order dismissing the charge against Edwards in the related criminal appeal. See State v. Edwards, 645 So.2d 588 (Fla. 1st DCA 1994) (Edwards I ). In its ruling, the court adopted the rationale set forth in State v. Sells, 582 So.2d 1244 (Fla. 4th DCA 1991), which presented a fact scenario virtually identical to the facts underlying the instant case. In Sells, the court reasoned that although the official being recorded fully expected the recording to take place, the question whether section 934.02(3), Florida Statutes, had been violated should be submitted to the jury.

When an agency terminates the employment of a career service employee on certain stated grounds, the agency must affirmatively prove the essence of the allegations by a preponderance of the evidence. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414-415 (Fla. 4th DCA 1974). The only limitation on agency discretion to dismiss an employee is that the action must be supported by competent substantial evidence. State, Department of General Services v. English, 534 So.2d 726, 729 (Fla. 1st DCA 1988); Board of Regents v. Videon, 313 So.2d 433, 435 (Fla. 1st DCA 1975).

The first issue raised by the Department was resolved by Edwards I. Nevertheless, the decision in Edwards I, reversing the dismissal of the criminal charges against Edwards, does not resolve the issues presented in this administrative appeal. Since different agencies may consider the actions or conduct of an employee in different contexts, the outcome of the related, but different, proceedings need not be the same. Walley v. Florida Game and Fresh Water Fish Commission, 501 So.2d 671, 674 (Fla. 1st DCA 1987); In re Alcoholic Beverages Seized from Saul's Elks Club, 440 So.2d 65, 67 (Fla. 1st DCA 1983). See also Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987).

The second issue concerns the hearing officer's determination that an investigator or law enforcement supervisor does not possess a reasonable expectation of privacy in the interrogation of a law enforcement officer, under circumstances that can lead to disciplinary action. In reaching this conclusion, the hearing officer considered the procedures employed by the Commission when it hears an appeal from the dismissal of a permanent career service employee, pursuant to section 447.207(8), Florida Statutes. In the course of such an appeal, all relevant aspects of the disciplinary investigation may be subjected to public scrutiny. The hearing officer further noted that disciplinary records and information are not included in the items specifically exempt from disclosure by section 119.07(3), Florida Statutes, the Public Records Act. In addition, the Florida Constitution contemplates that public business is to be conducted in the "sunshine." Reasoning from this open-government premise, and the fact that all persons claiming an expectation of privacy in this case were public employees acting in furtherance...