Metropolitan Dade County v. Bannister

• Decision Date: 08 May 1996
• Docket Number: No. 94-1005,94-1005
• Citation: 683 So.2d 130
• Parties: 21 Fla. L. Weekly D1077 METROPOLITAN DADE COUNTY, Petitioner, v. Sally BANNISTER, Respondent.
• Court: Florida District Court of Appeals

Page 130

683 So.2d 130

21 Fla. L. Weekly D1077

METROPOLITAN DADE COUNTY, Petitioner, v. Sally BANNISTER, Respondent.

No. 94-1005.

District Court of Appeal of Florida Third District.

May 8, 1996.

Robert A. Ginsburg, County Attorney, and William X. Candela, Assistant County Attorney, for petitioner.

H. Steven Sussman, Miami, Bruce S. Rogow, Beverly A. Pohl, Fort Lauderdale, for respondent.

Before BARKDULL, COPE and GODERICH, JJ.

PER CURIAM.

On August 13, 1991, Sally Bannister, a Corrections Officer with the Dade County Department of Corrections, tested positive for cocaine metabolite. The Director of the Dade County Department of Corrections terminated Bannister and she sought administrative review. Witnesses for both the Department of Corrections and Bannister testified before a hearing officer. Bannister testified that she had never knowingly taken cocaine but also that she had the practice of accepting food from inmates. The hearing officer found that the County had carried its burden of proving that Bannister's test results were positive and that there was no reason to doubt the reliability of the test procedures or results. He held however, that "this drug may have been ingested without the Appellant's knowledge." He concluded that Bannister should be disciplined because she should have known what could happen if she accepted food from inmates. He recommended that the dismissal be reduced to a suspension and that Bannister be subject to random drug testing for a period of not less than six months.

The Department appealed to the county manager who reviewed the report of the hearing examiner. The manager concluded that the hearing examiner's finding that the ingestion of cocaine was unintentional was not supported by any evidence or testimony and accordingly sustained Bannister's dismissal.

Bannister appealed the dismissal to the circuit court, appellate division. The circuit court panel held in a split decision (Judge Hubbart dissenting) that the county manager had erred in reversing the hearing officer and ordered Bannister reinstated with back pay. The panel also held that the Florida Administrative Procedure Act, chapter 120, Florida Statutes (1993), applied to county personnel appeals under section 2-47 of the Code of Metropolitan Dade County, and that the factual findings of a hearing officer could not be overturned if they were supported by competent substantial evidence.

Dade County then filed a petition for certiorari with this court asserting that the circuit court did not apply the correct law and that the decision of the circuit court should be quashed.

We first recognize that in reviewing a decision of the circuit court acting in its appellate capacity, this court must determine whether the "circuit court afforded procedural due process and applied the correct law." City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). As Judge Cope's dissent correctly states, the Florida Administrative Procedure Act does not apply to county personnel appeals and so the circuit court in this The procedure for county personnel appeals is set out in section 2-47 of the Code of Metropolitan Dade County. The hearing examiner conducts a hearing and transmits his findings of fact, conclusions, and any recommendations together with a transcript of all the evidence to the county manager. The county manager then has the express authority to "sustain, reverse or modify the suspension, reduction in grade, or the dismissal." Code of Metropolitan Dade County § 2-47. This section was amended in 1974. Prior to 1974, a Personnel Advisory Board conducted the hearing and made "advisory findings and recommendations." McKim v. McNayr, 168 So.2d 78, 79 n. 3 (Fla. 3d DCA 1964), cert. denied, 173 So.2d 148 (Fla.1965).

instance applied the incorrect law. Section 120.52(1)(C), Fla.Stat. (1993).

A series of cases from this court have interpreted section 2-47 of the Dade County Code. In 1964 this court held that the findings of the Personnel Advisory Board were merely advisory. That is, the county manager could choose to follow the findings and recommendations of the Board or alternatively, he could disregard the findings and recommendations as long as there was some evidence adduced before the Board to support the manager's decision. McKim v. McNayr, 168 So.2d 78, 80 (Fla. 3d DCA 1964), cert. denied, 173 So.2d 148 (Fla.1965). This rule was reaffirmed in Metropolitan Dade County v. Corozzo, 212 So.2d 891, 893 (Fla. 3d DCA 1968). The cases following Corozzo adhered to this interpretation of section 2-47 notwithstanding the amendment to the code that deleted the phrase "advisory findings." See Smith v. Metropolitan Dade County, 532 So.2d 84, 85 (Fla. 3d DCA 1988); Victor v. Stierheim, 380 So.2d 1319, 1321 (Fla. 3d DCA 1980); Metropolitan Dade County v. Marusa, 295 So.2d 704, 706 (Fla. 3d DCA 1974).

Based upon the above stated cases, the county manager has the authority to reweigh the evidence, assess whatever weight and credibility he deems appropriate to the evidence and disagree with the hearing examiner's conclusion. The appellate court may then reverse the county manager's decision only if it is not supported by substantial competent evidence in the record. We find that the positive test for cocaine metabolite is substantial competent evidence to support the manager's decision. We also agree with Judge Hubbart's apt comment in his dissent to the circuit court majority opinion that "[t]he Appellant had no more than some theories for how she might have unknowingly ingested cocaine." The manager reasonably concluded that there was no evidence or testimony that supported a finding of unintentional ingestion. Therefore, the decision of the circuit court must be quashed and the decision of the county manager reinstated.

Judge Cope argues in his dissent that given the fact that the code no longer contains the phrase "advisory findings" and given that the law of masters has changed since 1964, this court should recede from these opinions to the extent that they hold that the county manager may conduct a de novo review of the record and disregard the findings of the hearing examiner as long as there is some evidence in the record to support his decision. He asserts that since the findings are no longer advisory, the county manager does not have the authority to reverse or disagree with any findings of fact unless they are not supported by competent substantial evidence. We conclude that even if this interpretation were to be accepted and this court receded from prior law, the facts of this case would still warrant reversal.

The Charter of the City of Miami has a provision very similar to the present section 2-47 of the Dade County Code and the courts have interpreted that section on several occasions. See City of Miami Charter § 25. In State ex rel Eldredge v. Evans, 102 So.2d 403 (Fla. 3d DCA 1958), this court held that the city manager was bound by the findings of fact made by the Civil Service Board. ¹ However, once the Civil Service Board determined the guilt or innocence of the accused, the city manager had complete In the present case the hearing examiner found that while the ingestion of cocaine may have been unintentional, Bannister had committed misconduct and should be suspended for six months. If he had found Bannister completely innocent of any offense, then he would not have recommended the relatively severe penalty of a six month suspension and random drug testing. Pursuant to the standard set out in the City of Miami cases, once there has been a finding of misconduct, the county manager then has total discretion to determine the appropriate disciplinary action. This interpretation is confirmed by the plain language of section 2-47 of the Dade County Code. That section permits the manager to "sustain, reverse or modify the suspension, reduction in grade, or the dismissal." There is no basis, either in the relevant caselaw, or the plain language of the code, to impose a rule that the manager can modify the disciplinary recommendations of the hearing examiner only if they are not supported by competent substantial evidence. Therefore, since the county manager is authorized to modify a suspension, and that is exactly what he did, we find that his decision to discharge Bannister should be sustained.

                discretion in the determination of the appropriate disciplinary action.  Id. at 405.   The court distinguished that case from City of Miami v. Huttoe, 38 So.2d 819 (Fla.1949) wherein the Civil Service Board had found the employee innocent of all charges and recommended reinstatement, yet the city manager disagreed and discharged the employee.  In Huttoe, the court found that the city manager had exceeded his authority.  Id. at 820.   Also instructive is City of Miami v. State ex rel. Houston, 102 So.2d 176 (Fla. 3d DCA 1958) in which this court clarified its previous opinion and stated that the city manager was bound only by the findings of guilt or innocence, but not by the recommendations as to the particular penalty.  Id. at 177.   See also City of Miami v. White, 165 So.2d 790, 791 (Fla. 3d DCA 1964) ("The right and authority of the city manager of the City of Miami to impose a different penalty than that recommended by the civil service board has been recognized and established ...").  Therefore, we read these cases as establishing the rule that if the person or entity who hears the evidence finds that the employee has committed an offense, then the city manager has complete discretion in the determination of the penalty.  If on the other hand, the hearing examiner determines that the employee is not guilty of any misconduct, then the city manager would not be at liberty to disagree with the finding of innocence and impose a penalty
                

In summary, we first hold that, based on the line of cases construing section 2-47 that are still good law, the county manager may conduct a de novo review of the...