Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – termination - recommended order of administrative law judge – exceptions – Board could reject the recommendation of the administrative law judge to reinstate officer only if the Board stated “with particularity” that the administrative law judge’s findings of fact were not based on competent substantial evidence – Board’s general finding that there was not competent substantial evidence to support reinstatement of officer was insufficient – Board, acting in an appellate capacity, erred in reweighing the evidence and testimony – administrative law judge was charged with weighing and resolving the conflicts in the evidence as to whether the terminated officer had refused to obey a lawful order - Petition granted. Collinsworth v. Pinellas County Sheriff’s Civil Service Board, Appeal No. 06-0010AP-88A (Fla. 6th Cir. App. Ct. Sept. 21, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

SHANE COLLINSWORTH,

                        Petitioner,

 

vs.                                                                                                Appeal No. 06-0010AP-88A

                                                                                                    UCN522006AP000010XXXXCV

 

PINELLAS COUNTY SHERIFF’S

CIVIL SERVICE BOARD,

                        Respondent.

________________________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Common-Law Certiorari from the Pinellas County Sheriff’s Civil Service Board, the Response filed by the Pinellas County Sheriff’s Civil Service Board (Board), the Response filed by James Coats, Sheriff of Pinellas County (Coats), and the Reply thereto.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Shane Collinsworth (Collinsworth), seeks review of the Final Order, entered December 28, 2005, in which the Board, by a 3 to 2 vote, rejected the Hearing Officer’s recommendation to reinstate Collinsworth and, instead, upheld the termination action taken by Coats.  In reviewing the administrative action taken by the Board and Coats, the Court must consider whether Collinsworth was afforded procedural due process, whether the essential requirements of law were observed and whether the Final 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 shows that on May 13, 2005, Coats terminated Collinsworth from his position as a Deputy Sheriff for committing insubordination and engaging in prohibited conduct in violation of the Civil Service Act and Section 3-1.1, Rule and Regulation 5.17(a), and Rule and Regulation 3.1.  Following his termination, Collinsworth timely requested an administrative hearing before an Administrative Law Judge (ALJ), with the Division of Administrative Hearings (DOAH), following the appeal procedure set forth by the Board’s Rules of Procedure in disciplinary matters. 

            Prior to the hearing, Collinsworth withdrew his request for a hearing to challenge the alleged violation of standards of conduct in Rule and Regulation 3.1.  The only remaining ground for termination at issue before the ALJ was the charge of insubordination.  Before the ALJ, the parties agreed that in the absence of a finding of insubordination, termination of employment would not be an appropriate penalty for the prohibited conduct that Collinsworth did not challenge. 

            The remaining charge of insubordination resulted from a conversation that Collinsworth had with his immediate supervisor, Corporal Cooper, after Collinsworth received information concerning allegations of sexual misconduct allegedly perpetrated by another deputy sheriff,  Deputy Akins.  The information that Collinsworth received regarding sexual misconduct came from a Caroline Hart, a private citizen that Collinsworth knew personally and had met on-the-job when he’d responded to a call from Ms. Hart in June 2004.  Collinsworth had engaged in an intimate sexual relationship with Ms. Hart while off-duty and also met her while on-duty. 

            After the relationship between Collinsworth and Ms. Hart ended, Ms. Hart alleged to Collinsworth, in September 2004, that she had been the subject of inappropriate conduct from Deputy Akins.  Uncertain as to the procedure to use after receiving such information, Collinsworth sought the advice of Corporal Cooper, the acting sergeant for their squad. Collinsworth telephoned Corporal Cooper and reported the accusations by Ms. Hart.  Corporal Cooper told Collinsworth that he had followed the correct procedure and that he would report the information to Sergeant Rogers, the shift commander.  During their conversation, Corporal Cooper stated that Collinsworth should not discuss the matter with Deputy Akins due to the potential for a criminal or internal investigation.  Collinsworth subsequently telephoned Deputy Akins and told him about Ms. Hart’s accusations.  Collinsworth instructed Deputy Akins to deny having talked to him about the matter.[1] 

            Coats argued before the ALJ that when Collinsworth contacted Deputy Akins he committed insubordination by “refusing to obey a lawful order” from Corporal Cooper within the meaning of General Order Section 3-1.1, Section 5.17(a).  Collinsworth’s position was that Corporal Cooper was giving advice, rather than an order, so that he could not have committed insubordination.  After a lengthy and hotly contested hearing in which both sides presented testimony and evidence, the ALJ concluded that the words used by Corporal Cooper, within the context of the telephone conversation, did not create an understanding in the mind of Collinsworth that he had received an order not to contact Deputy Akins.  The ALJ found that the Coats had failed to meet its burden of proof, by a preponderance of the evidence, that Collinsworth had been insubordinate.  The ALJ recommended that Coats enter a final order rescinding Collinsworth’s termination and reinstating Collinsworth to his former position.    

            Coats timely filed exceptions to the ALJ’s Recommended Order and Collinsworth filed his response to those exceptions.  On December 14, 2005, the Board convened to consider the exceptions.  After hearing argument from both sides and considering the record, the Board, after discussion and deliberation, rejected the Recommended Order, by a vote of 3 to 2, and upheld the termination of Collinsworth.

            Before this Court, Collinsworth argues that the Board’s decision departed from the essential requirements of law and is not supported by competent substantial evidence.  This Court agrees.  Initially, the Court finds that the ALJ was sitting as the trier of fact in a de novo proceeding and, at the conclusion of the termination appeal hearing, entered extensive findings of fact.  The ALJ was charged with considering the evidence presented and weighing the credibility of the witnesses as they testified.  See Szniatkiewicz v. Unemployment Appeals Compensation, 864 So.2d 498, 502 (Fla. 4th DCA 2004)(explaining that the hearing officer or appeals referee in an administrative proceeding is the trier of fact and is privileged to weigh and reject conflicting evidence); Ferris v. Austin, 487 So.2d 1163, 1167 (Fla. 5th DCA 1986)(same); Heifetz v. Dept. of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985)(same). 

            Conversely, as set forth in the Board’s Rules of Procedure, the Board was charged with reviewing the record in deciding whether to approve, reject, or modify the recommended order, and did not consider new testimony or evidence.  The Rules of Procedure state that “the Board may not reject or modify findings of fact unless the Board first determines from a review of the entire record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence.”[2]  (emphasis added). 

            Likewise, Florida Statutes, section 120.57(1)(l), states, in pertinent part:

When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.

 

The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. 

 

The Court finds that the Board failed to state with particularity in its Final Order

that the ALJ’s findings of fact were not based on competent substantial evidence.  (emphasis

added).  See Ferris, 487 So.2d  at 1167; see also Bay County School Board v. Bryan, 679 So.2d 1246, 1247-48 (Fla. 1st DCA 1996).  Although the Board did deliberate, the Final Order only makes the generalized statement:  “The Board’s rejection of the Recommended Order was based upon its rejection, again by a vote of 3-2, of the Hearing Officer’s Finding of Fact that there was not an order given by Corporal Cooper to Deputy Collinsworth, because there was not substantial competent evidence supporting that finding of fact.” 

            The Court concludes that this sole finding is insufficient to overcome the ALJ’s recommendation, especially in light of the length of the hearing before the ALJ, the testimony and evidence submitted, the arguments and presentation by counsel, and the resulting detailed findings of fact made by the ALJ.  As this Court ruled in Robinson v. Everett S. Rice, Appeal No. 99-2809CI-88B (Fla. 6th Cir. App. Ct. January 7, 2000), an agency’s failure to state with particularity the reasons for rejecting a recommended order warrants certiorari relief.

            Further, the Court finds that the Board erred in reweighing the evidence and testimony presented in concluding that the direction given by Corporal Cooper to Collinsworth to not speak to Deputy Akins was an “order” instead of “advice.”  As recognized during the hearing on December 14, 2005, there was a significant conflict in the evidence presented as to whether an order or advice was given.  As set forth above, the ALJ was charged with resolving that conflict. 

            The Board could overrule the ALJ’s Recommended Order only if there was “no competent, substantial evidence from which the finding could be reasonably inferred.”  See Szniatkiewicz, 864 So.2d at 502; Bay County School Board, 679 So.2d at 1247; Ferris, 487 So.2d at 1167; Heifetz, 475 So.2d at 1281.  As the record contains competent substantial evidence to support the Recommended Order, the Board departed from the essential requirements of law in its action below.

            Lastly, the Court finds no merit to Coats’ argument that the ALJ rewrote or improperly defined the term insubordination.  Rather, the record shows that the ALJ based its analysis of insubordination on the parties’ common understanding of the term, which included considering the testimony of Collinsworth’s supervisors, the Chief Deputy and Corporal Cooper.         Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Common-Law Certiorari is granted and this cause is remanded for action consistent with this order and opinion. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of September 2006.

 

 

                                                            ________________________________

                                                            JOHN A. SCHAEFER

                                                            Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

LAUREN LAUGHLIN                                              BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:

 

Kenneth J. Afienko, Esquire

560 First Avenue North

St. Petersburg, FL  33701

 

Keith C. Tischler, Esquire

2145 Delta Blvd., Suite 200

Tallahassee, FL  32315

 

William C. Falkner, Esquire

315 Court Street, 6th Floor

Clearwater, FL  33756



[1] The record reflects that the investigation into the allegations against Deputy Akins, undertaken several months after the pertinent discussion between Collinsworth and Corporal Cooper, did not result in any disciplinary action being taken.  The Chief Deputy testified that he believed the communication between Deputy Akins and Collinsworth did not affect the final outcome of the investigation into the charges against Deputy Akins.

[2] While the Board’s Rules of Procedure state that the Board is to review exceptions “de novo,” the Board is actually sitting an appellate capacity in considering whether to approve, reject, or modify a recommended order.