West v. State, Dept. of Criminal Law Enforcement, II-315

• Decision Date: 16 October 1978
• Docket Number: No. II-315,II-315
• Citation: 371 So.2d 107
• Parties: Donald T. WEST, Petitioner, v. STATE of Florida, DEPARTMENT OF CRIMINAL LAW ENFORCEMENT, Respondent.
• Court: Florida District Court of Appeals

Page 107

371 So.2d 107

Donald T. WEST, Petitioner, v. STATE of Florida, DEPARTMENT OF CRIMINAL LAW ENFORCEMENT, Respondent.

No. II-315.

District Court of Appeal of Florida, First District.

Oct. 16, 1978.

Robert M. Ervin and E. C. Deeno Kitchen of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.

Robert L. Shevin, Atty. Gen., Douglas C. Kearney and Martin S. Friedman, Asst. Attys. Gen., for respondent.

PER CURIAM.

The essential issue presented by this case is whether petitioner was entitled to a hearing prior to discharge from his position as a special agent.

Petitioner was employed by the Department of Criminal Law Enforcement (hereinafter Department) continuously from 1968 until September, 1977. In July, 1977, he received a letter of suspension from Commissioner William A. Troelstrup charging him with the following:

"That during the period October 1, 1974 to January 21, 1977, while serving as a Special Agent of the Florida Department of Criminal Law Enforcement assigned to the Fort Walton Beach Field Office, Fort Walton Beach, Florida, you did wilfully make nonconsensual recordings of wire communications in violation of General Orders 3 and 12 of this Department and, more particularly, in violation of section 934.03, F.S.

"That during the period of July 1, 1976 to the present, while engaged in a 'storefront' stolen property investigation and in your official capacity as a sworn Special Agent of the Department, you capitalized upon confidential insider information as to the status of property as stolen or not stolen and procured a wristwatch which had not been stolen for your own personal gain or benefit in violation of subsection 112.313(8), F.S. * * * "

Petitioner requested a hearing and asked that he be advised of the particulars of the wrongful acts allegedly committed by him. In another letter, he requested a Complaint Review Board be established for the purpose of hearing and determining the issues existing between him and the Department as raised by the allegations in the letter of suspension. The Department rejected his request for a hearing and instead invited him to a private informal conference with Commissioner Troelstrup.

At that meeting no evidence was presented against petitioner; he was denied an opportunity to confront, cross-examine or review any witnesses or evidence against him, and the Department refused to disclose to him the particulars of any alleged nonconsensual recordings of wire communications made by him. The Department contends that no details were furnished because there was then in progress a criminal investigation concerning the charge of illegally recording telephone calls. West did offer at that meeting an explanation of the charge relating to the watch.

Three weeks later the Department terminated petitioner as of September 17, 1977, relying on the first charge but withdrawing the second charge concerning the watch. Further efforts to obtain a hearing were denied. Petitioner thereupon sought relief in this court.

Petitioner contends that the provisions of F.S. 112.532 require that law enforcement officers be notified of the reason for their suspension and/or termination and be afforded a hearing prior to the effective date of such action. He further contends that under subsection 2 of that statute, he is entitled to a hearing before a Complaint Review Board. The Department admits that F.S. 112.532 is applicable but claims that the request for a hearing under that statute was untimely in that it was not made during the time that petitioner was "under investigation and subject to interrogation by members of his agency." Further, the Department argues that F.S. 112.532(2) is invalid in that it does not recite the authority and procedures for a Complaint Review...