Purdy v. Cole, 74--1245
| Decision Date | 22 July 1975 |
| Docket Number | No. 74--1245,74--1245 |
| Citation | 317 So.2d 820 |
| Parties | E. Wilson PURDY, in his capacity as Director of the Dade County Public Safety Department, and Metropolitan Dade County, a political subdivision of the State of Florida, Appellants, v. Alan Burton COLE, Appellee. |
| Court | Florida District Court of Appeals |
Stuart Simon, County Atty., and Stephen P. Lee, Asst. County Atty., for appellants.
Raymond M. Seidler, Miami, for appellee.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
Metropolitan Dade County and E. Wilson Purdy, as Director of the Dade County Public Safety Department, defendants, appeal a final judgment in favor of Alan Burton Cole, plaintiff, in an action for declaratory relief, damages and reinstatement of employment wherein Cole was reinstated as a police officer with back pay.
Cole was employed as a police officer on probationary status with the Dade County Public Safety Department. While so serving as a police officer, he was assigned to the police detail at President Nixon's Key Biscayne, Florida, residence as a security guard whereupon he was allegedly investigated for security reasons by the United States Secret Service. Information obtained therefrom prompted an investigation by the Internal Review Section of the Metro Public Safety Department. After such investigation, which included a verified statement from Cole, a report was made to the Director of Public Safety containing the following findings of facts:
'1. While attending the University of Kentucky in 1970, Officer Cole took part in anti-police demonstrations that were held on campus.
2. That Officer Cole was turned down for the draft due to his physical exam. On the application Officer Cole listed his classification as IA.
3. That Officer Cole made application for the Miami Police Department in March 1971. He was rejected for medical reasons. He failed to put this on his application.
4. That Officer Cole made application for the Miami Beach Police Department and was rejected as a result of the oral interview. He also failed to make notes of this on his application to the Public Safety Department as required.
5. That Officer Cole did wilfully, falsify his application for employment with the Public Safety Department.'
Subsequently, Cole was notified in a letter signed by the Acting Director of the Public Safety Department that his employment was terminated. The letter reads:
'You are hereby released from your position as Police Officer with the Dade County Public Safety Department, effective May 7, 1973.
This personnel action is taken based on the following provisions of the Personnel Rules of Metropolitan Dade County Florida:
Chapter VIII, Section 5: 'A probationary employee may be discharged or reduced in class or rank, or replaced on the eligible list by the head of the department without charges or hearing.'
Chapter VIII, Section 7, Paragraph Q: 'Cause for Dismissal, Demotion or Suspension: That the employee, after employment, is found to have made a false statement in his application for employment.'
All department property issued to you, which is still in your possession, is to be returned immediately, and you are to report to the Personnel Section to complete the necessary checkout procedure.'
Upon termination of his employment by the Public Safety Department, without an administrative hearing, Cole then commenced this litigation seeking declaratory relief, reinstatement and damages. Cole claims he was discharged for constitutionally protected activities, and therefore he was entitled to an administrative hearing pursuant to the personnel rules of Metro Dade County, prior to discharge irrespective of his probationary status. He claims violation of his constitutional rights of freedom of speech, assembly and due process under the United States and Florida Constitutions. In support thereof he cites several United States Supreme Court decisions. The defendants answered the complaint and alleged that Cole was dismissed due to misrepresentations, falsifications or omissions on his employment application; that he accepted employment with Dade County subject to published personnel rules and a one-year probationary period and with full knowledge that misrepresentations, falsifications or omissions on an employment application constitute grounds for dismissal under the personnel rules and that there is no constitutional requirement for notice or hearing prior to discharge of a probationary employee, nor is there such a requirement in Dade County's personnel rules.
In the final judgment entered in this cause, the trial judge made extensive findings of fact herein paraphrased as follows: The termination of Cole's employment was not preceded by any constitutionally effective hearing before the Public Safety Department, although one was requested by Cole. The grounds for Cole's discharge stem from alleged falsification of information in his employment applications, which fall into two separate and constitutionally discrete classifications; first, Cole's alleged failure to include information as to prior applications to and refusals of employment by other police agencies, as well as a misrepresentation as to his selective service classification, which constitute non-constitutionally protected bases for dismissal; second, those claims vigorously asserted by the Public Safety Department to Cole that he 'falsified' his application by not revealing the lawful and constitutionally protected activities of asserting his First Amendment rights of free speech and free assembly during a 1970 campus demonstration at the University of Kentucky while a student there. The court further found that the reasons asserted by the Public Safety Department for Cole's discharge do not distinguish between the two types of alleged misrepresentations and the report of the Public Safety Department's investigation refers to the constitutionally protected 'charge' in a prominent and predominate manner. Therefore, at least one of the reasons for Cole's dismissal was that he participated in constitutionally protected activities and because it was thought that failure to reveal same to the Public Safety Department constituted a 'misrepresentation' sufficient to justify dismissal.
The trial court, in addition to the above finding, stated...
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