Metropolitan Dade County v. Marusa, 73--437

• Decision Date: 11 June 1974
• Docket Number: No. 73--437,73--437
• Citation: 295 So.2d 704
• Parties: METROPOLITAN DADE COUNTY, Florida, a political subdivision of the State of Florida, et al., Appellants, v. Edward A. MARUSA, Appellee.
• Court: Florida District Court of Appeals

Page 704

295 So.2d 704

METROPOLITAN DADE COUNTY, Florida, a political subdivision of the State of Florida, et al., Appellants, v. Edward A. MARUSA, Appellee.

No. 73--437.

District Court of Appeal of Florida, Third District.

June 11, 1974.

Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellants.

Murray A. Greenberg, Miami Beach, for appellee.

Before HENDRY and HAVERFIELD, JJ., and MARTIN, HENRY F., Jr., Associate Judge.

MARTIN, HENRY, F., Jr., Associate Judge.

In October, 1968, appellee was employed by the Tax Assessment Department of Metropolitan Dade County as a Land Evaluator I. On or about July 12, 1972, appellee was discharged from his employment for alleged inefficiency in the performance of his duty. Thereafter, pursuant to applicable personnel rules provisions, a hearing was held before a hearing examiner, who recommended that the county manager sustain such dismissal. Thereafter, appellee petitioned the Circuit Court for a writ of certiorari, contending that the hearing examiner applied the wrong standard of law to the facts adduced at the hearing. The trial Court agreed with that contention, granted the writ of certiorari, vacated and set aside the dismissal and ordered appellee reinstated with all pay and benefits. Appellants perfected this appeal, in which they contend the trial Court itself fell into error by failing to determine whether or not the decision of the county manager was supported by substantial, competent evidence.

The applicable provision of the Metropolitan Dade County ordinance code is Section 2--47 That section provides that any employee may be suspended, reduced in grade, or dismissed by his department head for any cause which will promote the efficiency of the service. The department head is required to consult with the personnel director and furnish a written statement of reasons for the action taken to every affected permanent employee. Such employee may appeal the action to a hearing examiner, who conducts an evidentiary hearing in accordance with the rules of civil procedure insofar as practicable. Such hearing examiner then transmits findings of fact, conclusions and recommendations, together with a transcript of all evidence and all exhibits, to the county manager, who may sustain, reverse or modify the action of the hearing examiner. The county manager's decision is subject to review by certiorari in the Circuit Court. ¹

In the instant case, the hearing examiner conducted a full evidentiary hearing at which several witnesses testified and several exhibits were received into evidence. In reviewing the evidence adduced at the hearing, the hearing examiner's comprehensive report states in part:

'* * * The evidence showed errors in plotting legal descriptions, in following instructions with respect to applying land sales data, and inefficient handling of taxpayer complaints. * * * There is nothing in the evidence to indicate that those charged with evaluating respondent's performance were motivated by anything other than a sincere desire to maintain proper standards of work.'

Such report also contains the following findings and recommendation:

'FINDINGS

1. The respondent was dismissed in accordance with procedures prescribed by the governing ordinances and the personnel rules of the County.

2. The respondent has been afforded a full hearing on the grounds for his dismissal.

3. The County has presented competent and substantial evidence to sustain the charge that the respondent has been inefficient in the performance of his duties.

4. The respondent has presented competent evidence to rebut only in part the County's evidence.'

'RECOMMENDATION

It is recommended that the County Manager sustain the dismissal of the respondent.'

The conclusions contained in said report included one to the effect that the decision of the department head (to discharge appellee) should be upheld if it is supported by any competent, substantial evidence. ² Such conclusion gives rise to appellee's contention, which was successfully urged upon the trial Court, that the hearing examiner conducted only a 'certiorari-type' review of the record and evidence adduced at the hearing, thereby applying the wrong standard of law.

Appellee recognizes that the trial Court was reviewing the decision of the county manager and not that of the hearing examiner in the certiorari proceedings here under review. In order to overcome this obvious defect in his legal position, Appellee contends that the county manager simply 'rubber-stamped' the action of the department head and the report of the hearing examiner without making an independent review of the record. This Court is unable to subscribe to that theory. Even if it is assumed, for the purpose of argument, that the hearing examiner's conclusion is incorrect, there is absolutely no indication in the record that it played any part in the decision of the county manager. That decision was contained in a letter to appellee which stated:

'We have received...