Seminole County Bd. of County Com'rs v. Long

• Decision Date: 03 November 1982
• Docket Number: No. 81-1421,81-1421
• Citation: 422 So.2d 938
• Parties: SEMINOLE COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Mildred LONG, Appellee.
• Court: Florida District Court of Appeals

Page 938

422 So.2d 938

SEMINOLE COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Mildred LONG, Appellee.

No. 81-1421.

District Court of Appeal of Florida,

Fifth District.

Nov. 3, 1982.

Rehearing Denied Dec. 8, 1982.

David V. Kornreich of Muller, Mintz, Kornreich, Caldwell & Casey, P.A., Orlando, for appellant.

Treena A. Kaye, Sanford, for appellee.

COWART, Judge.

Appellee, an employee of Seminole County, was terminated upon an accusation that she made a threatening telephone call to another employee. In the telephone call, she allegedly told the second employee, a supervisor, that she did not want that supervisor to accompany their superintendent when the superintendent again came to talk to appellee and told the supervisor to "back off" or there were certain people in certain organizations who would "take care of" the supervisor. The county personnel board heard and approved her discharge and the Board of County Commissioners heard her appeal and affirmed. The circuit court granted appellee's petition for common law certiorari, found that the findings and conclusion of the personnel board did not comport with the essential requirements of law and due process and essentially quashed the order of the Board of County Commissioners approving appellee's discharge. Seminole County appeals the circuit court order granting the petition for writ of certiorari.

Section 400-07-02(a) of the county's personnel rules gives a number of examples of "major offenses" for which summary termination is appropriate. One of the examples given is "assault on another employee or supervisor." The charge against appellee was "assault on another employee (verbal), merit system rules and regulations, section 400-07-2.," and the specification of that charge was "your threatening telephone call to Mr. Milton J. Raw, station supervisor, Casselberry MVI station, on Wednesday August 20, 1980, at approximately 7 o'clock p.m." The circuit court defined "assault" in terms of its definition in civil tort law and granted certiorari because the act specified in the charge did not satisfy that definition, since "mere words or threats alone do not constitute an assault, unless together with other acts or circumstances they put the victim in reasonable apprehension of imminent harmful or offensive contact" [citing 4 Fla.Jur.2d Assault-Civil Aspects § 3 (1978) ].

The threatening telephone call could constitute proper grounds for discharge. A number of cases affirm the rule that government employees may be discharged for "conduct unbecoming an employee." Kennett v. Barber, 159 Fla. 81, 31 So.2d 44 (1947); Weisbrod v. Florida Career Service Comm'n., 375 So.2d 1102 (Fla. 1st DCA 1979); City of Miami v. Babey, 161 So.2d 230 (Fla. 3d DCA 1964). Kennett, Babey and Miranda v. City of Miami, 185 So.2d 498 (Fla. 3d DCA 1966), approved discharge of city employees for conduct unbecoming a city employee where the conduct complained of was in itself a crime. Babey involved transportation of explosives in a motor vehicle without license or permit; Kennett involved discharge of a fireman who, while intoxicated, threw his wife to the ground and beat another woman; Miranda approved the discharge of a city employee who conspired to steal an automobile and possessed the stolen auto. From these cases, appellee argues that employees cannot be discharged for "conduct unbecoming an employee" unless the conduct is itself criminal. This argument fails to consider cases like Baynard v. Windom, 63 So.2d 773 (Fla.1952), which approved discharge of nine city employees for being absent without leave, and Chastain v. Civil Service Board of Orlando, 327 So.2d 230 (Fla. 4th DCA 1976), which approved discharge of a police officer for shooting an escaping prisoner even though, under the facts of the case, he was not civilly or criminally liable for his conduct. Weisbrod's reversal of the discharge of a state employee for using profane and abusive language to police officers who arrested her outside of working hours, does not diminish the fact that the court stated that "no right of an employee rises above the right of the city" to promulgate and enforce "as high a standard of social and cultural conduct as its people want," which cannot be upset by the court "when the record reveals nothing more than an orderly attempt to enforce a reasonable standard of conduct on the part of city employees." Weisbrod, 375 So.2d at 1106, quoting from Kennett v. Barber. That the county contemplated that a summary discharge could be predicated on noncriminal conduct is shown by the fact that one of the examples of "major offenses" is "gross insubordination," which is certainly not a crime.

The circuit court on certiorari was too technical with the county. A complaint filed by an administrative agency is not required to fulfill the technical niceties of a pleading filed in a court of law. Such an administrative complaint must only be specific enough to inform the accused with reasonable certainty of the nature of the charge. The charge in this instance met that requirement. The administrative complaint was not so vague, indistinct and indefinite as to mislead the appellee or to embarrass her in the preparation of her defense. Appellee's position was that she did not make the telephone call, while the supervisor testified that she did. The personnel board of Seminole County determined as a matter of fact that the telephone call was made. All procedural due process requirements as to notice and opportunity to be heard were met and the Board of County Commissioners' approval of the findings and conclusions of the personnel board should not have been disturbed on certiorari.

After this case was briefed and argued and this opinion prepared, the supreme court issued City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), holding that a district court of appeal could review a final circuit court order reviewing administrative action only by certiorari, despite the clear language of Article V, section 4(b)(1) of the Florida Constitution. ¹ We did not question the district court of appeal's jurisdiction to hear appeals from orders of the circuit court reviewing administrative action where the supreme court did not have such jurisdiction. Heretofore, this court had worked out that problem, giving effect to the plain language of article V, section 4, Florida Constitution, and holding that in such cases our scope of review might be as broad as, but never broader than, the circuit court's scope of review of the administrative action. McCray v. County of Volusia, 400 So.2d 511 (Fla. 5th DCA 1981); Odham v. Petersen, 398 So.2d 875 (Fla. 5th DCA 1981); County of Volusia v. Transamerica Business Corp., 392 So.2d 585 (Fla. 5th DCA 1980). Our view was based on the belief that the constitutional drafters knew the difference between the words "appeal" and "review" and that the constitutional provision was, not only applicable and binding, but was a well-conceived implementation of long established principles of constitutional magnitude. ²

As a constitutional principle for the protection of individual liberty against arbitrary actions of governmental officials, the doctrine of separation of powers of government ranks equal to the guarantees in sections 9 and 10 of article I of the Constitution of the United States, in the first nine amendments thereto and in their state...