Spicer v. Metropolitan Dade County, Political Subdivision of State of Fla., 84-343
| Decision Date | 16 October 1984 |
| Docket Number | No. 84-343,84-343 |
| Citation | 458 So.2d 792 |
| Parties | Robert T. SPICER, Petitioner, v. METROPOLITAN DADE COUNTY, POLITICAL SUBDIVISION OF the STATE OF FLORIDA, Respondent. |
| Court | Florida District Court of Appeals |
Zedeck & Kurlander, P.A. and Adam Kurlander, North Miami Beach, for petitioner.
Robert A. Ginsburg, Co. Atty., and Stephen J. Keating, Asst. Co. Atty., for respondent.
Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
Petitioner seeks certiorari review of an affirmance by the appellate division of the circuit court of a final notice of termination. The court's holding, essentially, was that a person in the Federal Witness Protection Program is unavailable as a matter of law, so that his statements are admissible under the statutory hearsay exception for former testimony and may be the sole basis for a final agency determination. Jurisdiction is invoked pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B).
Petitioner, Sergeant Robert Spicer, was employed as a police officer by Metro Dade Public Safety Department from 1966 through 1979. In May of 1979, he was among thirty-five individuals named in a federal indictment charging a RICO conspiracy. He was, at the time, suspended without pay from his duties as a police officer. After a trial in the district court in February of 1981, Spicer was acquitted. His request for reinstatement as an officer resulted in an eight-month internal review investigation. On September 1, 1981, Spicer was formally dismissed based on an alleged violation of Rule 2.200.55 of the Public Safety Department Manual, to wit: association with criminal element.
An administrative hearing was held on March 11, 1982, pursuant to Section 2-47 of the Code of Metropolitan Dade County. The county's evidence against petitioner was primarily documentary, consisting of the testimony given by petitioner at his criminal trial and the testimony given by a witness against petitioner at the criminal trial. Based on this evidence, the hearing examiner made findings of fact and recommended affirmance of Spicer's termination. The Dade County Manager approved the recommendation and, from the final order of termination, Spicer appealed to the circuit court acting in its appellate capacity. The circuit court affirmed the termination in a per curiam opinion and denied rehearing. Spicer seeks certiorari review of the circuit court's decision.
Petitioner contends that reversal is required because the record contains no competent or substantial evidence to support his dismissal. Specifically, he maintains that (1) the admission at the administrative hearing of testimony given by a witness against him in his federal criminal trial was error, since that testimony was hearsay which did not meet the requirements of the hearsay exception for former testimony in Section 90.804(2)(a), Florida Statutes (1983), and (2) the admission of petitioner's own criminal trial testimony was error because that testimony also constituted hearsay. We dispose of the second point as being totally without merit.
Petitioner's first point is meritorious and requires reversal of his termination. The testimony of a witness against him in the federal criminal trial did constitute hearsay under Section 90.801(1)(c), Florida Statutes (1983), since it was "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The dispositive question is whether such testimony was admissible in the administrative hearing.
Generally, hearsay evidence is admissible in administrative hearings. § 120.58(1)(a), Fla.Stat. (1983); Jones v. City of Hialeah, 294 So.2d 686 (Fla. 3d DCA 1974); see also De Groot v. Sheffield, 95 So.2d 912 (Fla.1957). But hearsay evidence alone is not sufficient to support a finding unless it would be admissible over objection in civil actions. § 120.58(1)(a), Fla.Stat. (1983); Byer v. Florida Real Estate Commission, 380 So.2d 511 (Fla. 3d DCA 1980); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Further, as this court has previously noted:
[W]hile in our state technical rules of evidence clearly do not apply in the same sense before administrative tribunals as they do in courts, we do not think the hearsay rule ought to be totally discarded, particularly in cases where individuals are threatened with serious deprivations, such as the loss of a job. Jones, 294 So.2d at 688.
If, on the other hand, hearsay evidence is corroborated by otherwise competent, substantial evidence, it may support an agency determination. See Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). But cf. Calhoun v. Bailar, 626 F.2d 145, 148-49 (9th Cir.1980), cert. denied, 452 U.S. 906, 101 S.Ct. 3033, 69 L.Ed.2d 407 (1981) (...
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