Florida Dept. of Corrections v. Bradley

• Decision Date: 05 August 1987
• Docket Number: No. BR-400,BR-400
• Citation: 12 Fla. L. Weekly 1899,510 So.2d 1122
• Parties: 12 Fla. L. Weekly 1899 FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. John W. BRADLEY, Appellee.
• Court: Florida District Court of Appeals

Page 1122

510 So.2d 1122

12 Fla. L. Weekly 1899

FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. John W. BRADLEY, Appellee.

No. BR-400.

District Court of Appeal of Florida First District.

Aug. 5, 1987.

Drucilla E. Bell, Asst. Gen. Counsel, Tallahassee, for appellant.

Robert A. Pell, Tallahassee, for appellee.

ON APPELLEE'S MOTION TO STRIKE APPELLANT'S BRIEF

PER CURIAM.

Appellee Bradley moved this court to strike the initial brief of appellant, contending that the brief contained references to matters not properly part of the record in this appeal. By a prior unpublished order we granted the motion to strike and, because of the importance of the question involved and its status as one of first impression, we now issue this opinion to explain our reasons for doing so.

Bradley was employed with the Department of Corrections (DOC) as a correctional officer and was suspended for 15 working days in February of 1985 for use of excessive force against an inmate. He appealed his suspension to the Career Service Commission (whose jurisdiction was assumed during the course of the proceedings by the Public Employees Relations Commission (PERC), see section 447.207(8), Florida Statutes (Supp.1986)). A formal hearing was held before a commission hearing officer who submitted a recommended order to the agency that no cause be found to discipline Bradley. Despite the fact that DOC had two opportunities to introduce the transcript of the hearing before PERC's final order was issued, it failed to do so. The first of these opportunities came after the hearing but before submission of the recommended order, when FAC Rule 38D-14.003(4) permits parties to submit to the hearing officer proposed findings of fact which may be supported by references to the hearing transcript. The second came after the recommended order was submitted to the agency, when Rule 38D-15.002(1) permits a party to file written exceptions to the recommended order and requires, in cases such as this, that exceptions to the hearing officer's findings of fact be accompanied by a copy of the official transcript if it is not already on file with the agency. See also section 120.57(1)(b)8, Florida Statutes (1985), requiring agencies to allow each party at least 10 days in which to submit written exceptions to a recommended order. PERC adopted the recommended order as its final order and this appeal commenced in January, 1987.

In March, appellant moved this court to supplement the record with a copy of the transcript of the hearing and tendered the transcript with the motion. We transferred the transcript to the clerk of the agency with directions to include it in a supplemental record if the transcript was properly part of the record. The agency found that it was uncertain as to what action to take and determined that "[p]rudence dictates that we resolve the conflict ... in favor of the inclusion of the transcript at issue." Appellant's initial brief included references to the transcript in the argument section of the brief, presenting in a favorable light DOC officials' interpretations of the incident as testified to at the hearing. Appellee then filed the instant motion to strike.

As PERC recognized in its order on the transcript, there exists an apparent conflict between the Florida Administrative Procedure Act, chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure, in resolving this dispute. ¹ Section 120.68(5)(a), Florida Statutes (1985), provides that "[t]he record for judicial review shall consist of ... the record under s. 120.57, if review of proceedings under that section is sought." In turn, section 120.57(1)(b)5.i. states that the record in cases involving formal proceedings shall consist of other materials not relevant to this dispute and "[t]he official transcript." Rule 9.200(a)(1), Florida Rules of Appellate Procedure, however, provides that "[t]he record shall consist of the original documents, exhibits, and transcript of proceedings, if any, filed in the lower tribunal...."

Appellee contends, and we agree, that where an agency acts on a recommended order pursuant to subsections 120.57(1)(b)8. and 9., and the transcript is not filed nor the agency's attention otherwise drawn to the record made of the hearing prior to issuance of a final order, the party seeking appellate relief cannot rely on the transcript in arguing that the agency erred if it accepts the recommended order's findings of fact in its final order. We find that this holding is dictated by the basic natures of both the administrative process and of appellate review.

The fact findings of a hearing officer become binding upon an agency unless it finds they are not supported by competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Section 120.57(1)(b)9., Florida Statutes (1985); Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So.2d 790 (Fla. 1st DCA 1986); Gruman v. State, Department of Revenue, 379 So.2d 1313 (Fla. 2d DCA 1980). There is no requirement, however, that the agency review the record and it may accept the findings of fact contained in the recommended order in...