State ex rel. McCants v. City of West Palm Beach

• Decision Date: 30 May 1941
• Citation: 147 Fla. 351,3 So.2d 158
• Parties: STATE ex rel. McCANTS v. CITY OF WEST PALM BEACH et al.
• Court: Florida Supreme Court

3 So.2d 158

147 Fla. 351

STATE ex rel. McCANTS v. CITY OF WEST PALM BEACH et al.

Florida Supreme Court

May 30, 1941

Rehearing Denied July 12, 1941.

En Banc.

Jordan Johnson and John E. Bollinger, both of West Palm Beach, for plaintiff in error.

Paul W Potter, of West Palm Beach, for defendants in error.

PER CURIAM.

No error clearly appears from a careful study of the record and briefs in this case, therefore, the judgment of the circuit court is affirmed.

BROWN, C. J., and WHITFIELD, TERRELL, THOMAS, and ADAMS, JJ., concur.

CHAPMAN and BUFORD JJ., dissent.

CHAPMAN, Justice (dissenting).

I am unable to agree to the majority opinion in this case.

On June 22, 1940 George B. McCants filed in the Circuit Court of Palm Beach County, Florida, a petition for an alternative writ of mandamus against designated officials of the City of West Palm Beach. The petition, inter alia, alleged that the relator was employed by said city as a fireman on November 16, 1934, and the employment was continuous thereafter until the filing of said petition; that said city had paid the relator regularly for his said services as a fireman from the date of employment until September 18 1939, and there is now due him by the City of West Palm Beach his monthly salary for that period of time from and after September 18, 1939, until the date of filing the petition in the lower court.

The legislature of Florida, during its 1939 Session, enacted Chapter 20197 Special Laws of Florida. The act regulated the employment and the discharge of officers and employees, created a Civil Service Board, provided for election of the officers thereof, and adopted the procedure regulating the trial of members of the Civil Service Board of the City of West Palm Beach. The act provided a referendum to be approved by the electors of said city before the act should become effective. The act was approved by the electors of said city on September 26, 1939, when the same became effective. The Civil Service membership of officers and employees is fixed and determined by the provisions of the act, viz:

'Section 8. Prior Employment.

'(a) The Chiefs and Superintendents of all departments who are appointed, their assistants, and all officers and employees subordinate thereto, save or except part time employees, who are now employed by said City and who were employed by said City on June 1, 1939, are hereby declared to be members of the Civil Service of said City; provided, however, that the City Manager of said City shall not be a member of the Civil Service, nor shall this Act apply to any office held by said City Manager.

'(b) All employees of said City who are required to receive the approval of the Civil Service Board for appointment and who shall be in the continuous services of said City for a period of six months shall become members of the Civil Service of said City;

'(c) All members of the Civil Service are subject to the rules and regulations of the Board of Civil Service but shall not be required to stand any examination, physical and/or mental, except for the purpose of promotion.

'Section 9. The Board of Civil Service is hereby required to register the names of all officers and employees who are members of the Civil Service and to set opposite each name the respective office, rank or employment of said employee on June 1, 1939, and all of said employees are confirmed in said office, rank or employment which they held or had on June 1, 1939, and shall not be reduced, demoted, suspended or discharged except in accordance with the terms and provisions of this Act.

'Section 10. List Of Employees.--The Chiefs and Superintendents of all departments shall within ten (10) days after the first meeting of the Board of Civil Service created hereby, furnish said Board with a list of all of the employees in their respective departments on June 1, 1939, showing their rank, and the period of employment. Each employee's name and rank shall be entered upon the Civil Service Register as aforesaid, taking precedence by rank, and those employees of the same rank shall take precedence by seniority.'

The petition alleges that the several respondent officers of said city are bound by the provisions of the act, supra, and if followed, observed, recognized and lawfully applied, the petitioner is a member of the Civil Service of the City of West Palm Beach.

On September 30, 1939, as shown by the petition, the relator received notice of discharge and termination of his employment with said city, and the letter is dated at City of West Palm Beach, Florida, on September 30, 1939, and reads as follows:

'Mr. G. B. McCants,

'628-47th Street.

'West Palm Beach, Florida.

'Dear Sir:

'You are hereby notified that your services in this department terminated on September 18, 1939. I regret having to take this action but due to circumstances and conditions with which you are as familiar as myself, I deem it necessary to take this action for the best interest of yourself and the public you were serving.

'If I can be of any assistance in any way please do not hesitate to call upon me.

'Yours very truly,

'(Signed) A. P. Sadler

'A. P. Sadler,

'Chief, Fire Department.'

Section 15 of Chapter 20197, supra, outlines and prescribes the proceedings for the discharge or suspension of employees and is, viz:

'Section 15. Procedure For Discharge Or Suspension Of Employee.--(a) No officer or employee who is a member of the Civil Service and is appointed, employed, promoted or confirmed under the terms and provisions of this Act shall be removed, suspended, demoted, reduced, fined or discharged, except for cause shown upon written charges preferred by the City Manager, departmental head or Civil Service Board member of incompetency, misfeasance, malfeasance, nonfeasance, misconduct or violation of law or rules of the Civil Service and after opportunity to be heard in his own defense by himself and counsel and the findings and decisions of the Board of Civil Service shall be certified to the City Manager and shall be enforced by said City Manager. The Director, Chief of any department or division and the superintendent of any department or division may suspend a subordinate for a reasonable period not to exceed thirty days. A copy of said charges shall be served upon such subordinate within five days after such suspension, and shall be reported to the Board of Civil Service by such Director, Chief or Superintendent within said time. The Board of Service shall investigate said suspension after giving such subordinate notice as to the time and place of such hearing and in event it finds same was unwarranted and without cause it shall certify the finding to the City Manager, and the said person suspended shall receive compensation for the time for which he was suspended; provided, however, that no officer or employee shall be fined a sum in excess of one months compensation. This Section shall not apply in event of excessive employment as provided in Section 14 of this Act.

'(b) Suspension And Demotion Of Any Department Head.--The Chief of any department or division and the Superintendent of any department or division may be for violation of the provisions of Section 18 of this Act, or for misconduct, suspended by the City Manager for a reasonable period of time not to exceed thirty (30) days and such suspension shall be reported to the Board of Civil Service within five (5) days, and an investigation shall be had as provided in Subsection (a) of this Section. No Chief or Superintendent of any department who is a member of the Civil Service shall be demoted, reduced, fined or discharged except by the Board of Civil Service upon charges preferred by the City Manager; provided, however, that no officer or employee shall be fined a sum in excess of one months compensation. Such charges shall be investigated before said Board in accordance with Subsection (a) of this Section and the findings of said Board shall be enforced by the City Manager of said City.'

On November 13, 1939, the Secretary of the Civil Service Board advised relator that he would be given a hearing on the evening of November 23, 1939, at 7:30 P. M., in the municipal court room of the City of West Palm Beach, and pursuant to said notice a hearing was had and the testimony adduced before the Civil Service Board was attached to and made a part of the relator's petition. It is stated in the petition that the testimony received by the Civil Service Board was hearsay, illegal, incompetent and legally insufficient to support an order reinstating the relator under the provisions of Section 15, supra. The alleged hearing was not based upon legal reasons for a discharge as a member of Civil Service, but was based on the question of whether or not the relator should be reinstated to membership of the Civil Service. Several exhibits are attached to and by reverence made a part of the petition and it is contended here that the relator was unlawfully discharged as a member of the Civil Service and that under the provisions of Section 15, supra, he is entitled to retain his membership status therein until removed, suspended, demoted or discharged in accordance with the provisions of Chapter 20197, Special Laws of Florida, Acts of 1939.

The petition commands the officials: (1) to compensate the relator as a fireman at the rate of $120 per month after September 18, 1939, until the time of filing the said petition; (2) to enter the name of the relator upon the register described in Section 10 of Chapter 20197 and to set opposite his name his rank or employment as a Civil Service employee; (3) and to do those things necessary to effectuate and carry out each and every requirement of Chapter 20197.

The grounds for...