State, Dept. of Health and Rehabilitative Services v. Artis

• Decision Date: 20 May 1977
• Docket Number: No. 76--2128,76--2128
• Citation: 345 So.2d 1109
• Parties: STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., et al., Appellants, v. Edward ARTIS et al.
• Court: Florida District Court of Appeals

Page 1109

345 So.2d 1109

STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., et al., Appellants, v. Edward ARTIS et al.

No. 76--2128.

District Court of Appeal of Florida, Fourth District.

May 20, 1977.

Mary E. Clark, Asst. Gen. Counsel, Dept. of Administration, Tallahassee, and Douglas E. Whitney, Dist. Gen. Counsel, Health and Rehabilitative Services, Winter Park, for appellants.

Andrew P. Mavrides, of Mavrides & Latimer and Alan H. Konigsburg, of Shamres & Konigsburg, Fort Lauderdale, for appellees.

LETTS, Judge.

The opinion issued April 7, 1977 is withdrawn.

This is an interlocutory appeal from a circuit judge's order granting a temporary injunction, and commanding the various appellants to reinstate certain security guards at the South Florida State Hospital. Said hospital is an institution caring for patients with mental disorders and those who have been committed to it by the criminal courts of the State of Florida.

We reverse.

The appellees are all career service employees on duty, at the said state hospital, to provide security. On or about September 17, 1976, the chief of security learned of a proposed 'sick out' by the guards, and on the same day issued a memorandum to be read at all roll calls which informed all security personnel to refrain from such a 'job-action' and to use existing channels of command to resolve problems or grievances. Apparently the memo was ignored by 22 out of 28 day shift personnel who did, in fact, commence a 'sick out' (on the morning of September 19th, 1976), to bolster their demands for hazardous duty pay and a call for an investigation of the said chief of security.

Thereafter, on the same morning, the hospital administrators caused the unmanned security posts to be filled with deputies from the Broward County Sheriff's Department on an emergency basis, and the offending guards were either suspended, fired or later reinstated. Testimony by the district administrator, Kelley, was to the effect that the men were first given an hour to return to work, but in a painstaking and erudite order, the trial judge apparently concluded otherwise. The lower court, in granting the injunction said in part:

Testimony indicates some of the sixty (60) personnel were offered interviews, (which Defendants call hearings), some have never been heard, some have been officially notified of suspension and termination, some have never been notified officially of any action against them, some have at this writing valid doctor's excuses for their actions and remain suspended, and to summerize (sic), the Court finds the handling of the discipline of these personnel arbitrary, inconsistent, inconsiderate, irregular, unfair and intolerable. Although the Court has no sympathy with the methods employed by the security personnel to attempt to attain their desired additional 'hazardous duty pay,' the Court, nevertheless, must require the Department of Health and Rehabilitative Services to follow proper rules and regulations to accomplish its disciplinary measures.

A reading of the vast record on appeal does not suggest any reason to doubt these findings of fact by the honorable trial judge for, for instance, a memorandum from the Lt. Governor in June, which was required to be distributed to all personnel, remained unheard of by the guards involved in the 'sick out' until after the unfortunate episode took place.

However, notwithstanding all of the foregoing, we disagree with the trial judge's finding which said:

The Court finds no adequate remedy exists for the Plaintiffs for the prompt reinstatement of their positions, which were arbitrarily taken from them. A lengthy appeal process is not an adequate remedy for those who must work every day to support themselves and their families.

We are in sympathy with all of the preceding language above quoted and have little doubt that the situation was mishandled by a combination of bureaucratic bungling and high handedness at the local level. Yet, we cannot support the trial judge's decision, for it does not appear to us to be the law.

Appellants contend that the injunction was improperly issued, as the necessary legal requirements were not present. The essential criteria for a temporary mandatory injunction have been enumerated by the Supreme Court in Wilson v. Sandstrom, 317 so.2d 732, 736, (Fla.1975) viz. (1) irreparable harm, (2) a clear legal right, (3) inadequate remedy at law, and in some circumstances (4) consideration of the public interest. We conclude there was no irreparable harm and an adequate remedy existed, which conclusions make it unnecessary to discuss the remaining two criteria.

It is true that the guards have alleged that they would be irreparably injured because of loss of employment, unless appellants are enjoined from hiring new employees to do their jobs; however, there does not appear to be any evidence in the record showing how else the guards would be harmed, and loss of income is not enough. As appellants point out, there is a provision by statute for reinstatement of an employee with, or without, back pay, and for reasonable attorneys fees and expenses incurred during the prosecution of an appeal under Florida Statute § 110.061(3).

Although the Florida courts, apparently, have not directly ruled on the issue of the availability of injunctive relief, in cases involving loss of income, the Supreme Court of the United States has held that 'the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.' Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974). That case dealt with a similar situation in which a probationary federal employee was granted temporary injunctive relief from dismissal from employment by the district court pending an administrative appeal. The Supreme Court reversed, noting that

an insufficiency of savings or difficulties in immediately obtaining other employment--external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself--will not support a finding of irreparable injury, however severely they may affect a particular individual. 94 S.Ct. at 953 n. 68.

A comparable ruling was made in Connell v. Higginbotham, 305 F.Supp. 445 (M.D.Fla.1969), in which denial of a temporary restraining order to prohibit dismissal of a teacher pending a determination of constitutional rights, was approved. The court there found that no irreparable harm would be suffered because any loss of wages could be compensated for by damages.

As to the presence of an adequate remedy, appellants contend that the opportunity to appeal to the Career Service Commission affords appellees a...