IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

CITY OF ST. PETERSBURG,
a municipal corporation,

                                                Petitioners,

vs.                                                                                                        Appeal No. 00-1698-CI-88A

MARTIN POPE,

                                                Respondent.

____________________________________/

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            This cause came before the Court on the Petition For Writ Of Certiorari, the Response and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds the Petitioner has raised two issues in this appeal.  The first issue is whether the factual finding of the Civil Service Board (“Board”), that Department Director Eichler did not consult with the City Employee Relations Department, is supported by substantial competent evidence in the record.  The second issue is whether the Board observed the essential requirements of law when it made its conclusion of law that the City had no just cause to terminate Respondent.

            As to the first issue raised by the Petitioner, the Court finds that the Respondent has agreed with the Petitioner’s position as to this issue on appeal.  In the Response brief, the Respondent reviews the Petitioner’s first issue on appeal and states, “…number 17, which admittedly, the Board answered incorrectly.”  Further, the record reflects Director Eichler’s uncontested testimony that she “had an opportunity to consult with Employee Relations.”   Therefore, the Court finds that number 17 of the Order’s findings of fact, that Department Director Eichler did not consult with the City Employee Relations Department to determine what disciplinary action should be taken, is not supported by competent substantial evidence.

            As to the second issue, after a review of the record, the Court finds that the Board’s conclusion that there was not just cause to terminate the Respondent is supported by competent substantial evidence and conforms to the essential requirements of law.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995). (In reviewing the record, the Court disregarded the testimony transcripts filed as Respondent’s Appendix I as the transcripts were not properly certified, verified, or attested to).

            Respondent, Martin Pope, was terminated from his employment with the City of St. Petersburg on November 9, 1999, and timely filed an appeal which came before the Civil Service Board on February 23, 2000.  Due to the decision to terminate Mr. Pope, the Board heard testimony and reviewed evidence concerning his entire 10-year employment tenure as a City Code Investigator.  During his employment, Mr. Pope received two employee discipline notices.  The first notice was a written reprimand given in January 1995, for being discourteous to an employee and supervisor, and displaying disorderly conduct.  The second notice was given in July 1999, following a one-day absence from work without permission or leave, which resulted in a two-day suspension.  There were no other discipline employee notices issued to Mr. Pope prior to the time he was terminated on November 9, 1999, and the record otherwise reflects Mr. Pope’s overall good work performance and reliability. 

            However, the decision to terminate Mr. Pope and the Board’s subsequent decision to find no “just cause” for his termination centered around a series of events, or “matters of discipline” as referred to by counsel for the Petitioner below, which revolved around an on-going dispute Mr. Pope had with his backyard neighbor, Michael Bond.   The record reflects that on October 14, 1999, after a near collision of their vehicles, Mr. Pope and Mr. Bond engaged in a confrontation, and the resulting disciplinary matters ensued.

            Specifically, and by his own admission, on November 3, 1999, Mr. Pope stated over the city radio, “this legless wonder just called me a dickhead” (referring to Mr. Bond, who has a disability); and, on November 4, 1999, Mr. Pope improperly submitted a complaint against Mr. Bond into the department’s database system.  However, Mr. Pope contested the accusations contained in a letter written by Mr. Bond and received by Director Eichler on November 3, 1999.

            The record conveys that much of the Mr. Pope’s appeal hearing focused on the weight that Director Eichler gave to this letter in making her termination decision.  Director Eichler found Mr. Bond to be credible and believed the serious accusations made against Mr. Pope.  One such accusation leveled by Mr. Bond in his letter was that Mr. Pope had said “he would Kick my a-- and that I had better watch out because he would ‘finish what God intended for me’.”

            In response, on November 5, 1999, Director Eichler asked Mr. Pope to go home and further informed Mr. Pope that he would be on leave with pay until she concluded an investigation.  Director Eichler did not discuss or show the letter to Mr. Pope at this time nor during the period of investigation.  However, Director Eichler did contact Mr. Bond to “verify” the contents of the letter.  Mr. Bond attested to the accuracy of his allegations and Director Eichler informed Mr. Bond that she was contemplating disciplinary action against Mr. Pope.  (The record reflects the Board disapproved of an internal disciplinary matter being discussed externally, especially with Mr. Bond).

            The record shows that Mr. Pope had no knowledge of the letter until the “pre-termination hearing” on November 9, 1999, when Director Eichler gave Mr. Pope the letter with an employee notice informing him of his termination.  Director Eichler testified that in reaching her decision to terminate Mr. Pope, she believed Mr. Bond’s accusations.  However, Director Eichler did not confer with Mr. Pope to get his input or otherwise substantiate the claims made by Mr. Bond prior to reaching her decision, even though, to her knowledge, Mr. Pope had never received a citizen complaint during his almost 10 years as a Code Investigator.  In response to questioning by the Board, Director Eichler testified that, although she tried to get Mr. Pope to respond to her disciplinary decision at this pre-termination hearing, he seemed “distracted . . . by all of the other somewhat inflammatory remarks that had been made in that letter.”

            The Board clearly had concerns with how Director Eichler conducted the investigation that ultimately resulted in her decision to terminate Mr. Pope.   Further, at the conclusion of the appeal hearing, that included the testimony of both Mr. Pope and Mr. Bond, the Board found that Mr. Bond was not credible and found that he may have had ulterior motives to “get back at Code Enforcement.”    Specifically, the Board stated that Mr. Bond was “not the least bit redible” and that there was nothing in his testimony to “validate the gentleman being fired.”  The Board then made their no just cause determination, which the record amply supports.

            Additionally, the Petitioner asserts that the Board, in entering the Order, attempted to unlawfully modify the disciplinary action imposed.  The Petitioner further argues that because the findings of fact contained in the Order would appear to support only one conclusion, i.e. that just cause did exist for the Respondent’s termination, the Board departed from the essential requirements of law by concluding otherwise.

            The record shows that counsel for the City of St. Petersburg prepared and submitted to the Board an Order prior to the appeal hearing below which provided findings of fact to be entered by  marking the appropriate box either (did___) or (did not___).  Although counsel for Mr. Pope objected to the use of the “draft” Order due to the wording of the factual findings that would permit only an affirmative answer, the Board nevertheless used the Order to enter findings of fact and conclusions of law.  In so doing, the Board affirmatively answered all the findings of fact (with the exception of number 17, which was addressed above), but concluded that “There. . .was not. . . factual and legal just cause for the City to discipline the Appellant in the manner it did [in] this case.” 

            The Court finds that the Board did not attempt to modify the action imposed by checking off these findings of fact and conclusions of law contained in this Order, but rather performed

their lawful duty to “determine if just cause existed with respect to the action taken by management.”  See Rule 8-8(C)(2), Rules and Regulations of the City of St. Petersburg.  However, the Court does note that in appeal hearings, such as the Respondent’s below, it may be prudent for the Board to revise or modify findings of fact contained in a prepared Order to more accurately reflect the conclusions of law reached following the hearing.

The City’s Rules and Regulations do provide that the Board has five working days to forward its decision to the grievant and the City Administrator and so, therefore, is not bound to immediately enter a prepared Order at the appeal hearing and can make appropriate revisions.

            The Court also finds that, although the Board commented about the level of Mr. Pope’s discipline, specifically in response to questioning by counsel for the Petitioner, the Board’s final decision was rendered after hearing numerous witnesses testify for both sides and after reviewing several exhibits that were admitted into evidence.  In reaching its decision, the Board observed the conduct and demeanor of the parties and determined the truth or falsity of the evidence.  See Town of Surfside v. Higgenbotham, 733 So.2d 1040, 1044 (Fla. 3d DCA 1999)(citing City of Miami v. Huttoe, 38 So.2d 819 (Fla. 1949)).  Further, the Board was not appointed to act as a “rubber-stamp” to employee discipline taken by the City of St. Petersburg, but rather was appointed to review the merits of each case to safeguard the removal of an employee for unworthy causes. See City of Clearwater v. Garretson, 355 So.2d 1248, 1251 (Fla. 2d DCA 1978); cert. Denied, 364 So.2d 885 (Fla. 1978)(citations omitted).  The Board in this case did consider the merits of Mr. Pope’s appeal before reaching its conclusion. 

            Although the findings of fact entered by the Board (as drafted by counsel for the City of St. Petersburg) may appear to “mandate” a conclusion of “just cause”, the record contains competent substantial evidence why the Board concluded otherwise.  Therefore, this Court will not reweigh the evidence or substitute its judgment for that of the Board.  See Castilleja v. City of Jacksonville, 738 So.2d 335, 336 (Fla. 1st DCA 1998).

            It is therefore,

            ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is DENIED.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 14th day of August 2000.

                                                                                                                                                

                                                                       

__________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

Copies Furnished To:

Robert M. Eschenfelder, Esquire

Assistant City Attorney

Post Office Box 2842

St. Petersburg, FL  33731

Attorney for Petitioner

James Sheehan, Esquire

341 3rd Street South

St. Petersburg, FL  33701

Attorney for Respondent

Staff Attorney, Appellate Division