Florida Dept. of Health and Rehabilitative Services, Division of Health v. Career Service Commission of Dept. of Administration, 73--605
| Decision Date | 08 February 1974 |
| Docket Number | No. 73--605,73--605 |
| Parties | FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF HEALTH, Petitioner, v. CAREER SERVICE COMMISSION OF the State of Florida DEPARTMENT OF ADMINISTRATION and Raya E. Tew, dismissed employee, Respondents. |
| Court | Florida District Court of Appeals |
James G. Mahorner, Gen. Counsel, Fla. Dept. of Health & Rehabilitative Services, Div. of Health, Tallahassee, for petitioner.
Robert L. Shevin, Atty. Gen., and Stephen F. Dean and William R. Hanley, Asst. Attys. Gen., Tallahassee, for respondent-Career Service Commission, Fla. Dept. of Administration.
Matthew C. Russell, Riviera Beach, for respondent-Raya E. Tew.
Pursuant to the provisions of F.S. Section 120.31, F.S.A., of the Florida Administrative Procedure Act, the Florida Department of Health and Rehabilitative Services, Division of Health, petitioner (hereinafter referred to as Department), filed a petition for certiorari seeking to review an order of the Career Service Commission of the State of Florida Department of Administration, respondent (hereinafter referred to as Commission). The order, dated April 19, 1973, was issued as a consequence of an appeal taken to the Commission by one Raya E. Tew, respondent, seeking to review her dismissal by the Department from employment as a registered nurse.
A detailed recitation of the circumstances surrounding respondent's dismissal is not essential to the disposition of the petition. Suffice it to say, the Commission did not uphold the Department's action terminating respondent but, instead, took other disciplinary action as hereinafter set forth:
'Based on the foregoing findings of fact and conclusions it is the opinion of this Commission that the Agency Failed to prove conclusively that the Appellant did fail and refuse to carry out the doctor's order relating to the care of his patient, even though the Appellant admitted that she questioned the propriety of such orders; that some disciplinary action should be taken against Appellant due to her attitude and her affirmation that she disagreed with and did not want to comply with the doctor's orders, which this Commission feels was mainly due to an error in judgment on the part of Appellant, but for which she should receive some punishment; however, the Commission is of the opinion that the action of dismissal taken by the Agency was too harsh and severe. Accordingly, it is
ORDERED that the Appellant shall be suspended, without pay, for thirty (30) days, beginning November 18, 1972, to and including December 17, 1972. It is further
ORDERED that Appellant be reinstated to her former class of position with the Department of Health and Rehabilitative Services With full back pay and all rights and provileges of a Career Service employee, retroactive to December 18, 1972.' (Emphasis added.)
The Department, in urging that the order be quashed, contends that the Commission erred: (a) when it placed the burden of proof upon the employing authority; (b) when it measured the degree of proof by which a case must be established using a standard of 'conclusiveness'; (c) when it ordered full back pay for the respondent without a reduction of monies which respondent allegedly earned during the period of her discharge; (d) when it failed to issue its written opinion within thirty days from the date of hearing as prescribed by law.
Upon consideration of the foregoing we are of the opinion that the Commission erred in several material respects and its order should be quashed.
First, as to contention (a), we are of the opinion that the burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal'. 1 Fla.Jur. Administrative Law § 120; 2 Am.Jur.2d Administrative Law § 391. As reflected in F.S. Section 110.061 (1), F.S.A., 'Any employee who as permanent status in the career service may only be Terminated for cause by the agency or officer By whom he is employed . . .'. Where an agency terminates an employee for certain stated grounds, reason, logic and the law would require that the agency affirmatively carry the burden of proving the essence of its allegations. While This burden never shifts, the proof presented may give rise to a presumption in the establishment of the case so that the Burden of moving forward with the presentation will shift to the party Resisting the affirmative action of the agency. See 2 Am.Jur.2d, supra, Sec. 391. Cf. State ex rel. Hawkins v. McCall, 1947, 158 Fla. 655, 29 So.2d 739. 1 See also In The fact that the aggrieved employee must initiate the hearing before the Commission or that such action is denominated as an 'appeal' does not alter the proposition that the Burden of proving the basis for termination rests with the employing agency. See F.S. Sec. 110.061(1), F.S.A., supra. In this respect, therefore, the Department's contention must fall and the position of the Commission is sustained.
Turning now to contention (b) concerning the degree of proof, i.e., what criteria should be utilized by the reviewing authority in evaluating the sufficiency of the agency's evidentiary presentation, we are of the opinion that the yardstick should be: preponderance of the evidence. 2 We adopt and quote with approval the following comments contained in 2 Am.Jur.2d, supra, sec. 392:
'Some statutes specifically provide for a greater or lesser degree of proof than simple preponderance.'
In the opinion and order under review herein, the Commission found 'that the agency failed to Prove conclusively . . .' the substance of its charges. It is impossible to ascertain what the Commission's intention was in utilizing the word 'conclusively'. Certainly, reason and logic suggests that the Commission had some purpose in view; we cannot ascribe to the Commission that its use of the word 'conclusively' was meaningless.
It would appear that the Commission undertook to measure the Department's presentation by a standard More severe than is generally applicable to civil and administrative proceedings. Whether the Commission would still have arrived at the Same conclusion utilizing the standard of 'preponderance of the evidence' is sheer speculation. The requirement of 'conclusive' proof was erroneous.
With respect to contention (c) that the Commission erred in ordering 'full back pay' without authorizing a reduction of monies which respondent may have earned in other employment during the period of her dismissal, we find such contention to be without merit. Section 110.061 (3) provides:
We have not been shown nor are we aware of any statute or rule requiring the Commission to Mandatorily reduce the back pay of a reinstated employee as a result of other earnings. It rests within the sound discretion of the Commission, when reinstating an employee, to do so 'with or without back pay'. If the Commission is of the view, based upon the evidence before it, that the employee is not entitled to back pay (whether such determination be based upon 'other earnings' or some other factors) it would be authorized to so conclude. Conversely, if the Commission because of the evidence before it determined that a reinstated employee was entitled to full back pay it could also so order.
Whether or not the Commission's order reinstating an employee 'with or without back pay' is erroneous would be dependent upon the presence or absence of evidence to support either determination measured by whether such determination...
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