Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – City’s conclusion that Rules and Regulations, Rule # 25, was intended to be read disjunctively is not clearly erroneous - City had factual and legal just cause to terminate Smarowsky’s employment for off the job behavior –  Smarowsky forced individual into his car at gunpoint and brandished gun at two citizens - Petition denied.  Anthony Smarowsky v. City of St. Petersburg Council, No. 04-0003AP-88A (Fla. 6th Cir. App. Ct. Feb. 28, 2005). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

ANTHONY SMAROWSKY,

                        Petitioner,

 

vs.                                                                                                Appeal No. 04-0003AP-88A

                                                                                                    UCN522004AP000003XXXXCV

 

CITY OF ST. PETERSBURG,

                        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 that the Petition must be denied as set forth below.

            The Petitioner, Anthony Smarowsky (Smarowsky), seeks review of the Order, entered December 15, 2003, in which the Civil Service Board of the City of St. Petersburg (Board), determined that the City of St. Petersburg (City) had factual and legal just cause to terminate Smarowsky’s employment.  In reviewing the administrative action taken in the proceedings below, the Court must consider whether Smarowsky was afforded procedural due process, whether the essential requirements of law were observed and whether the Order is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action). 

            The record, including the approved Statement of Evidence,[1] shows that Smarowsky had been employed by the City since 1991, most recently as a plant maintenance mechanic in the Water Resources Department.  His duties included welding and general equipment repair and he did not have day-to-day contact with the public.  Smarowsky was terminated, effective close of business September 10, 2003, as a result of his off-duty conduct that occurred on Sunday, September 7, 2003.  

            The events of September 7th began when Smarowsky awoke to find his wallet missing.  He confronted Misti Warren, whom Smarowsky had allowed to stay overnight at his home.  Ms. Warren told Smarowsky that she had given his wallet to her ex-boyfriend because he had threatened her.  Believing he could make a “citizen’s arrest,” Smarowsky handcuffed Ms. Warren, put her in his car, and pointed a handgun at Ms. Warren, demanding she take him to her ex-boyfriend to get his wallet back.    After driving several blocks, Smarowsky returned to his driveway followed by two men who had witnessed Ms. Warren struggling in Smarowsky’s vehicle.  Back at Smarowsky’s residence, Ms. Warren fled the vehicle while Smarowsky confronted the two men, pointing the handgun at them.  Officers with the St. Petersburg Police Department arrived and subsequently arrested Smarowsky on charges of assault and kidnapping.

            The St. Petersburg Police Department informed the City of Smarowksy’s arrest.  On September 8, 2003, Smarowsky met with his acting supervisor and department manager to tell his side of the story.  On September 9, 2003, an Employee Notice was issued showing that Smarowsky was being terminated, effective September 10, 2003, for two Group III violations, Rule # 25 and Rule # 26.[2]  The Rule # 26 violation was later dropped.  Rule # 25 prohibits “[u]nlawful or improper conduct on or off the job, which would tend to affect the employee’s relationship to his job, his fellow workers, his reputation or goodwill in the community.”  Smarowsky appealed his termination to the Board.  Prior to the appeal hearing, the State Attorney dropped the charges against Smarowsky because the victims failed to attend the investigatory meeting and two of the victims had prior records which would affect their credibility as witnesses.

            On December 15, 2003, an evidentiary hearing on Smarowsky’s termination was held before the five-member Board.  At the conclusion of the hearing, the Board entered 7 findings of fact and conclusions of law:[3]

1.      On or about June 11, 1999, did the appellant, Mr. Anthony Smarowsky, sign as to having received a copy of the Rules and Regulations of the Personnel Management System and acknowledging his responsibility to read, understand, and comply with these provisions?

 

2.      On September 7, 2003, was the appellant, Mr. Anthony Smarowsky, arrested by officers of the St. Petersburg Police Department for kidnapping and aggravated assault?

 

3.      On September 7, 2003, did the appellant, Mr. Anthony Smarowsky, brandish a weapon toward another person, handcuff that person, place her in his car and drive her around while she was handcuffed?

 

4.      Was Mr. Anthony Smarowsky’s September 7, 2003, conduct as set forth in paragraph 3 above, unlawful or improper for an employee of the City of St. Petersburg and thereby properly determined to be in violation of Group III, Rule # 25 of the City of St. Petersburg Code of Conduct for City employees?

 

5.      On September 7, 2003, did the appellant, Mr. Anthony Smarowsky, brandish a gun at two citizens who attempted to come to the aid of the female handcuffed in his car?

 

6.      Was Mr. Anthony Smarowsky’s September 7, 2003, conduct as set forth in paragraph 5 above unlawful or improper for an employee of the City of St. Petersburg and thereby properly determined to be in violation of Group III, Rule # 25 of the City of St. Petersburg Code of Conduct for City employees?

 

7.      Based on the police reports and interviews with the victims and with Mr. Smarowsky’s neighbors, did the appellant’s conduct on September 7, 2003, tend to adversely affect his relationship to his job, his fellow workers, his reputation or goodwill in the community, and, thereby, further violate Group III, Rule # 25 of the City of St. Petersburg Code of Conduct for employees?

 

The Board voted “Yes”, 5 to 0, in response to questions 1, 2, and 3.  For questions 4 through 7, the Board voted “Yes” in a split decision, 3 to 2.  The Board then concluded in a 3 to 2 vote that there was factual and legal just cause for the City to terminate the employment of Smarowsky. 

            Before this Court, Smarowsky’s primary argument is that the Board denied him due process and departed from the essential requirements of law in interpreting Rule # 25 disjunctively, i.e. that Smarowsky could be terminated for unlawful or improper conduct either on or off the job, which would tend to affect the employee’s relationship to his job, or his fellow workers or his reputation or goodwill in the community.  (emphasis added).  Smarowsky argues that Rule # 25 is missing a key word, either an “and” or an “or”, after the phrase “his fellow workers” and that this alleged ambiguity should have been resolved in Smarowsky’s favor.  Smarowsky argues that there is a missing word because there is no comma after the words “his reputation.” 

            The Court finds that to the extent that there was a perceived ambiguity, three of the five Board members determined that the Rule was intended to be read disjunctively, meaning that only one aspect of improper conduct had to be met in order for there to be a violation of Rule # 25.  The Court finds that this interpretation is not clearly erroneous and is within the range of possible permissible interpretations.  See Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-99 (Fla. 3d DCA 2003)(finding that the Board’s interpretation of the City’s personnel rules is entitled to judicial deference as long as it is within the range of possible permissible interpretations); see also Miles v. Florida A and M University, 813 So.2d 242, 245 (Fla. 1st DCA 2002)(stating that a reviewing court should defer to an agency’s interpretation of its own rules unless the interpretation is clearly erroneous).

            The Court finds that the Board’s conclusion that Rule # 25 was intended to be read disjunctively is a permissible interpretation, particularly since construing the Rule conjunctively would create a much higher threshold of improper conduct by necessitating a finding that such improper conduct would tend to affect the employee’s job, and fellow workers, and reputation or goodwill in the community.  (emphasis added).  Further, according to Smarowsky’s argument, the Rule may be disjunctive if the supposed missing key word is an “or”, or if there was a coma after the words “his reputation.”  Hence, while the Rule may not be linguistically ideal, the majority of the Board’s determination that the Rule was intended to be disjunctive is certainly not clearly erroneous.  The Court must defer to the Board’s understanding of Rule # 25 and accord it judicial deference.  See id.

            Smarowsky next argues that the Board’s Order is defective as it failed to set forth findings of fact with regard to how Smarowsky’s actions tended to affect his job, fellow workers, reputation, or goodwill in the community, and failed to set forth the Board’s appropriate burden of proof.  The Court finds that the Board did sufficiently set forth findings to support its conclusion of just cause for Smarowsky’s termination.  As set forth in #’s 2, 3, 5, and 7, Smarowsky brandished a weapon toward another person, Ms. Warren, handcuffed her, placed her in his car, and then drove her around while she was handcuffed.  Smarowsky then brandished a weapon at two citizens who attempted to come to the aid of Ms. Warren.

            While these findings mirror the Description of Conduct set forth in the Employee Notice, they are not simply findings of guilt for what Smarowsky was charged with, that is violating Rule # 25.    Further, unlike the case cited by Smarowsky in support of this argument, Kearson v. City of Miami, 5 Fla. L. Weekly Supp. 425c (Fla. 11th Cir. Ct. 1998), cert. den., 718 So.2d 189 (Fla. 3d DCA 1998), it is clear in this case what evidence the Board relied on in reaching its determination of just cause for Smarowsky’s termination.  As set forth in # 7, the Board considered the police reports and interviews with the victims and Smarowsky’s neighbors.  The Court also finds that while the standard of proof before the Board is a preponderance of the evidence, there is no requirement that the Order must set forth this standard in its findings of fact and conclusions of law. 

            The last argument presented by Smarowsky is that the record lacks competent substantial evidence that Smarowsky’s actions had any detrimental affect on his job, fellow employees, his reputation, or goodwill in the community.  In addressing this issue, the Court reiterates that competent substantial evidence is defined as evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)).  Competent substantial evidence “must be based on something more than mere probabilities, guesses, whims, or caprices, but rather on evidence in the record that supports a reasonable foundation for the conclusion reached.”  Id.  In considering whether there is competent substantial evidence, the Court must assess the record for evidentiary support for the Board’s decision and cannot reweigh the evidence or substitute its judgment for that of the Board.  See Dusseau v. Metropolitan Dade County Board of  County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001); see also Haines City, 658 So.2d 530. 

            Accordingly, the Court finds that there is competent substantial evidence that Smarowsky’s violent, dangerous, and irrational behavior on September 7, 2003, would tend to affect Smarowsky’s relationship to his job, his fellow co-workers, his reputation, or goodwill in the community.  As stated in the police reports and witness interviews, it is undisputed that Smarowsky brandished a loaded gun at several individuals, and handcuffed and transported Ms. Warren around in his vehicle in a threatening manner.  Further, the police reports establish that at least one neighbor witnessed the altercation in Smarowsky’s driveway and, fearing for his family’s safety, had his wife and son retreat to the back of the house.

            The deep concern expressed by the testifying witnesses is justified based on Smarowsky’s conduct, despite 12 years of above-average employment reviews.  Although the charges of assault and kidnapping were eventually dropped by the State Attorney, there is no necessary correlation between the criminal proceedings and the City’s decision to terminate Smarowsky.  See Weisbrod v. Florida Career Service Commission, 375 So.2d 1102, 1106-07 (Fla. 1st DCA 1979).  Further, while it is unclear if Smarowsky exhibited similar behavior outside of work on other occasions,[4] the City had the authority to terminate Smarowsky based on the facts surrounding this single incident.  See e.g. Seminole County Board of Commissioners v. Long, 422 So.2d 938, 940 (Fla. 5th DCA 1982)(discussing a number of cases wherein a government employee was fired for single incident of “conduct unbecoming an employee”).  As set forth by the First District Court of Appeal in Weisbrod, 375 So.2d at 1106, “no right of an employee rises above the right of a city to promulgate and enforce ‘as high a standard of social and cultural conduct as its people want,’ which cannot be upset by the court ‘when the record reveals nothing more than an orderly attempt to enforce a reasonable standard of conduct on the part of city employees.’”  Accordingly, the Court finds that the record contains competent substantial evidence to support the Board’s conclusion that there was just cause for Smarowsky’s termination and that certiorari relief must be denied.    

            It is therefore,  

            ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is hereby denied. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2005.

 

 

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

 

Copies furnished to:

 

Scot E. Samis, Esquire

Post Office Box 1511

St. Petersburg, FL  33731-1511

 

Ernest Mueller, Assistant City Attorney

Post Office Box 2842

St. Petersburg, FL  33731



[1] The Petitioner prepared a Statement of Evidence pursuant to the Florida Rules of Appellate Procedure, Rule 9.200(b)(4), after discovering that the tape recordings of the hearing were defective.  With a few minor changes, each Board member approved the Statement of Evidence.

[2] The City’s Rules and Regulations recommend termination for the first violation of a Group III offense.

[3] All of the findings were in the form of questions to which the Board answered in the affirmative by checking off the “Yes” option.

 

[4] Two Board members noted that the police had been called to Smarowsky’s home on 15 occasions.