Jones v. City of Hialeah

• Decision Date: 02 April 1974
• Docket Number: Nos. 73--797,s. 73--797
• Citation: 294 So.2d 686
• Parties: Robert JONES, Appellant, v. CITY OF HIALEAH et al., Appellees. Louis CAPAFORTE, Appellant, v. CITY OF HIALEAH et al., Appellees. Pasquale GALLOTTA, Appellant, v. CITY OF HIALEAH et al., Appellees. through 73--799.
• Court: Florida District Court of Appeals

Page 686

294 So.2d 686

Robert JONES, Appellant, v. CITY OF HIALEAH et al., Appellees.

Louis CAPAFORTE, Appellant, v. CITY OF HIALEAH et al., Appellees.

Pasquale GALLOTTA, Appellant, v. CITY OF HIALEAH et al., Appellees.

Nos. 73--797 through 73--799.

District Court of Appeal of Florida, Third District.

April 2, 1974.

Rehearing Denied June 7, 1974.

George D. Gold, Miami, for appellants.

Philip Carlton, Jr., and Rex Ryland, Jr., Miami, for appellees.

Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.

PER CURIAM.

This is an appeal from an order of the circuit court denying appellants' petitions for writs of certiorari to review the findings of the Personnel Board of the City of Hialeah.

Following a hearing, the Board had found each of the appellants, officers on the city's police force, guilty of violations previously set forth in the officers' letters of dismissal.

The Board affirmed the dismissal of appellants, Gallotta and Capaforte. The dismissal of appellant, Sergeant Robert Jones was found to be excessive, and it was ordered that Jones be reduced to a patrolman first class and suspended without pay for 120 days.

In their brief filed with the circuit court, appellants raised six points in support of granting a writ of certiorari. In addition, the extensive record and exhibits from the Personnel Board were considered by the able circuit judge, acting in an appellate capacity.

Our review, therefore, is limited in scope. Our inquiry is directed to the question whether or not the circuit court applied the applicable principles of law, and not whether error was committed before the Personnel Board. Morris v. City of Hialeah, Fla.App.1962, 140 So.2d 615; Woods v. Goldstein, Fla.App.1965, 174 So.2d 465; Katz v. State Board of Medical Examiners, Fla.App.1967, 201 So.2d 805.

Appellants have raised two points in their brief filed in this court, which were likewise contained in their briefs filed in circuit court. The first point challenges the admissibility of hearsay evidence before the Personnel Board, over objection of appellants' counsel.

We have reviewed the record in this case, and have concluded that the alleged hearsay admitted at the Board proceeding was not prejudicial error. Generally, adjudicatory proceedings before administrative boards are not required to adhere to strict rules pertaining to the exclusion of evidence required in trials in a court of law. Forman v. State Board of Accountancy, Fla.App.1971, 243 So.2d 4; McFall v. Florida State Board of Dental Examination, Fla.App.1965, 173 So.2d 458; Fla.Stat. § 120.27, F.S.A.

Appellants contend that the most damaging hearsay testimony introduced at their hearing was a tape recording and written transcript of the tape of a statement by one Leo Vela, formerly an identification technician in the Hialeah Police Department, who admitted involvement in the incident which gave rise to appellants' dismissal and who himself resigned from the police department.

However, the record indicates that counsel for the appellant was afforded the opportunity to question Vela, and counsel also recorded a statement from him which could have been offered into evidence at the hearing.

We feel constrained in this case, however, to add a cautionary word. At the Personnel Board hearing, the City Attorney, Mr. Miles, advising the board expressed the view that hearsay in such proceedings is 'strictly admissible.' Counsel for the City, Mr. Carlton, also stated on numerous occasions that hearsay evidence was permissible.

Appellants vigorously contend this created a 'hearsay free-for-all' at the hearing. While we do not agree that in fact such was the case, we do think that a danger may have been established for the admission of unfair and prejudicial hearsay evidence in future cases.

We do not agree with the conclusion that hearsay is strictly admissible in a quasi-judicial administrative hearing called to determine whether or not an individual is entitled to keep his job. We would point out that Florida Legislature saw fit to enact Fla.Stat. Ch. 174, F.S.A., entitled 'Civil Service for Police and Firemen in Cities and Towns of One Hundred Twenty-Five Thousand Population, or Less.'

This law provides that it is only applicable to a city which by a referendum has adopted it. Hialeah has not adopted Ch. 174, and it is not strictly applicable to this case. Nevertheless, Section 174.12 specifically provides that at civil service hearings for a policeman or fireman who has been discharged: 'The admission of the evidence shall be governed by the rules applied by the court in civil cases.'

This proviso stands as a clear indication of what the Florida Legislature thought should be required at hearings such as the one afforded the appellants.

In addition, we also have taken cognizance of § 2--47 of the Metropolitan Code of Dade County, governing civil service hearings. It states: 'Such hearing shall be conducted insofar as is practicable in accordance with the rules of civil procedure governing the procedure in circuit court . . .'

There is by no means unanimity concerning the admissibility of hearsay evidence at administrative hearings in our sister jurisdictions. Some federal decisions to which we have been referred permit hearsay evidence at administrative hearings. Gilmore v. United States, 131 F.Supp. 581 (N.D.Cal.1955); Brown v. Macy, 340 F.2d 115 (5th Cir. 1965); Mackatunas v. Finch, 301 F.Supp. 1289 (E.D.Pa.1969); ...