Florida Dept. of Corrections v. Provin, BO-204

• Decision Date: 28 October 1987
• Docket Number: No. BO-204,BO-204
• Citation: 515 So.2d 302,12 Fla. L. Weekly 2498
• Parties: 12 Fla. L. Weekly 2498 FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. Richard E. PROVIN, Appellee.
• Court: Florida District Court of Appeals

Page 302

515 So.2d 302

12 Fla. L. Weekly 2498

FLORIDA DEPARTMENT OF CORRECTIONS, Appellant, v. Richard E. PROVIN, Appellee.

No. BO-204.

District Court of Appeal of Florida First District.

Oct. 28, 1987.

Rosa H. Carson, Deputy Gen. Counsel, Dept. of Corrections, Tallahassee, for appellant.

Raymond A. David, Jr., of David & Morrow, Jacksonville, for appellee.

ERVIN, Judge.

The Florida Department of Corrections (DOC) appeals an order entered by the Career Service Commission (later designated as Commission or CSC) on rehearing, vacating its earlier order that had sustained DOC's action dismissing the employee, Provin, and directing that the dismissal be reduced to a suspension without pay, and that he be reinstated to his former position, effective June 27, 1986. The DOC argues that there was no proper showing of cause for the Commission to grant rehearing and to reverse its prior decision. We affirm.

By letter dated March 1, 1985, Provin was notified that disciplinary action was pending against him and that he could be dismissed. A predetermination hearing was conducted by DOC on March 13, 1985, resulting in Provin's dismissal, effective March 15, 1985. The dismissal was appealed to the Commission, a de novo evidentiary hearing was conducted, and an order entered on June 17, 1986, finding that the DOC had shown just cause in dismissing Provin; as a result, DOC's action was sustained. Subsequently, within ten days after the entry of the order, a motion for rehearing and an amended motion for rehearing were filed, seeking rehearing on the basis of the facts previously submitted, and raising for the first time an issue not earlier brought to the attention of the Commission, alleging that Provin did not receive notice of DOC's proposed disciplinary action within ten days before his dismissal, as required by Section 110.227(5), Florida Statutes, and Florida Administrative Code Rule 22A-10.0042. The DOC moved to strike the amended petition for rehearing on the ground that the employee had raised an evidentiary matter and issue that were not submitted at the de novo hearing. A second hearing was conducted, where the disputed evidence was considered, reflecting that although DOC's letter informing Provin of the charges had been dated March 1, 1985, that Provin did not receive the letter until March 7, 1985, less than ten days before his dismissal, which occurred on March 15, 1985.

The Commission's order, in finding that just cause existed for DOC's disciplinary action, but not for the severity of the action taken, revisited its earlier findings and determined that some of DOC's evidence did not support the employing agency's sanction of dismissal. The order further stated that the issue of the lack of required notice prior to dismissal was waived due to the employee's failure to raise it before or at the earlier hearing, yet it also inconsistently stated that Provin was prejudiced in preparing a defense because of the defective notice.

The DOC's argument that there is no proper showing of cause for the Commission to grant rehearing is broken down into several subparts: (1) That the Commission improperly granted rehearing on the basis of facts in mitigation that had previously been considered in its initial order, with the exception of the issue of notice that was raised for the first time on rehearing. (2) That the Commission erred in granting the motion for rehearing on the basis of mitigating factors, in that the issue of insufficient notice was raised for the first time in the motion for rehearing, and was therefore waived. (3) That if the Commission could appropriately consider the issue of defective notice on rehearing, it erred in finding the notice given was insufficient and the employee prejudiced without conducting an evidentiary hearing, where the DOC should have been provided the opportunity to cross-examine and provide rebuttal evidence.

As to the first sub-issue raised, the DOC argues that the Commission erred in considering the same facts in mitigation that had previously been before it at the de novo hearing, thereby permitting a retrial of the same issues. In so arguing, the DOC relies upon two cases from the Florida Supreme Court involving orders by the Public Service Commission (PSC) granting motions for rehearings: Diamond Cab Co. of Miami v. King, 146 So.2d 889 (Fla.1962), and Stewart Bonded Warehouse, Inc. v. Bevis, 294 So.2d 315 (Fla.1974). Both cases are distinguishable from that at bar, because both involved orders on rehearing which were in excess of the scope of powers legislatively delegated to the agency: In King the agency's rule precluding judicial review of the order unless a motion had first been made for rehearing, and in Stewart Bonded Warehouse, the agency's decision granted a certificate of public convenience and necessity to an applicant without properly considering the statutory criteria necessary for grants of such certificates. The Stewart opinion particularly commented upon the lack of competent, substantial evidence supporting the agency's order on rehearing.

Here, the Commission, unlike the PSC in the above cases, in granting the motion for rehearing, did not change its prior determination that just cause did not exist for the disciplinary action, but found instead, based upon both old and new evidence, that the severity of the sanction was not justified. In other words, its order reducing Provin's dismissal to a suspension was not dependent upon whether competent and substantial evidence supported just cause for DOC's action. The CSC agreed that just cause did exist, but decided, notwithstanding, that DOC's disciplinary action was too severe. Unlike the PSC's actions reviewed in the above two cases, the CSC was clearly conferred the statutory power to so act. Section 110.309, Florida Statutes (1985), provides in part:

(3) Upon a finding that just cause did not exist for the suspension or dismissal, the commission may order the reinstatement of the employee, with or without back pay.

(4) Upon a finding that just cause for disciplinary action existed, but did not justify the severity of the action taken, the commission, may, in its discretion:

(a) Reduce a dismissal to a suspension for such time as the commission may fix; or

(b) Reduce the period of a suspension.

(5) Any order of the commission issued pursuant to subsection (3) or subsection (4) shall be conclusive on the agency or officer concerned.

(emphasis supplied)

The Commission's decision to reduce Provin's dismissal to a suspension was no doubt influenced in part by factors that had been previously considered earlier by the Commission. Nevertheless, the Commission's authority to so act is statutorily designated as "conclusive". Given no statutory standards against which the order can be reviewed, it must be considered essentially as unreviewable. ¹ The legislative delegation of power, authorizing the Commission to reduce dismissals and suspensions, is so broadly "drawn ... that a [reviewing] court would have no meaningful standard[s] against which to judge the agency's exercise of discretion. In such a case, the statute ('law') can be taken to have 'committed' the decisionmaking to the agency's judgment absolutely." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714, 723 (1985) (e.s.). Cf. also Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978), holding, in its construction of Section 120.68(12), Florida Statutes (forbidding reviewing courts from substituting their judgment for that of the agency on an issue of discretion), that courts have "no authority to review the penalty unless agency findings are in part reversed."

The DOC appears to argue that standards generally applicable to judicial proceedings under Florida Rule of Civil Procedure 1.530 are also applicable to guide the Commission's discretion in determining whether to grant motions for rehearing. We have expressly held, however, that Rule 1.530 is not pertinent to hearings conducted under the Administrative Procedure Act. See Systems Management Associates, Inc. v. State, Department of Health and Rehabilitative Services, 391 So.2d 688, 689 (Fla. 1st DCA 1980). It is well recognized that the powers of administrative agencies are measured and limited by the statutes or acts granting them their powers, or to those conferred either expressly, or by necessary or fair implication. See Hall v. Career Service Commission, 478 So.2d 1111 (Fla. 1st DCA 1985); 1 Am.Jur.2d Administrative Law § 72 (1962).

The source of the Commission's power to adopt rules granting rehearings is derived from its broad rulemaking authority, conferred by Section 110.305(1), Florida Statutes: "The commission shall, in accordance with chapter 120, adopt ... such rules as it deems necessary to carry out its responsibilities as specified herein." The Commission is otherwise empowered by section 110.305(3) to hear appeals arising out of any suspensions, reductions in pay, transfers, layoffs, demotions, or dismissals of any employee in the state career service, which shall be conducted by a de novo fact-finding hearing. See section 110.309(1). Pursuant to those powers, the Commission...