Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – City departed from the essential requirements of law in conducting new hearing on Petitioner’s termination from the City – City’s termination of Petitioner had been quashed by this Court in a previous decision and upheld by the Second District Court of Appeal – City’s unlawful attempt to re-try termination case was tantamount to a “second bite at the apple” - Petition granted.  Meaton v. City of St. Petersburg, Appeal No. 06-0053AP-88B (Fla. 6th Cir. App. Ct. May 29, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

BRIAN MEATON,

                        Petitioner,

 

vs.                                                                                                Appeal No. 06-0053AP-88B

                                                                                                    UCN522006AP000053XXXXCV

CITY OF ST. PETERSBURG and CITY OF

ST. PETERSBURG CIVIL SERVICE BOARD

                        Respondents.

________________________________________________/

ORDER GRANTING 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 granted as set forth below.

            The Petitioner, Brian Meaton (Meaton), seeks review of the Order, entered August 3, 2006, in which the City of St. Petersburg Civil Service Board (Board), determined that the City of St. Petersburg (City) had factual and legal just cause to terminate Meaton’s employment.  This is the second such order entered by the Board and this is the second appeal involving these parties from the same underlying employment action.  On January 13, 2005, this Court entered its Order Granting Petition for Writ of Certiorari concluding that there was not competent substantial evidence to support the Board’s first decision that there was just cause to terminate Meaton’s employment.  After an in-depth analysis, the Court quashed the Order, entered June 13, 2003, finding that the Board failed to make any findings of fact to support the reasons given by the City for terminating Meaton.[1]  

As set forth in the Order Granting Petition, central to the Court’s analysis was a comparison of the findings of fact in the proposed order versus the ultimate findings that the Board entered.  (Both orders were prepared and submitted to the Board by the City).  While the Court concluded that there was not competent substantial evidence to support Meaton’s termination, the Court found that it was unable to adequately address whether there had been due process violations as there was not a transcript of the hearing.  In quashing the Board’s decision, the Court remanded the cause for action consistent with its order and opinion, citing to Broward County v. G.B.V. International, LTD., 787 So.2d 838, 844 (Fla. 2001). 

            This decision was appealed to the Second District Court of Appeal which Per Curiam Denied the City’s Petition for Writ of Certiorari.  The matter went back before the Board and the Board determined that a new evidentiary hearing should be held.  Meaton then filed a Petition for Writ of Mandamus in the circuit trial court to prevent a new evidentiary hearing and to request that Meaton be reinstated with back pay.  The trial court entered its Order Denying Petition for Mandamus which found that the Board could not hold another hearing and take additional evidence based on this Court’s appellate ruling.  While the trial court denied the Petition, it made the additional findings:[2]

3.  In his Order of January 13, 2005, Judge Demers held as a matter of law that the only Findings of Fact in the Board’s original Order that were admissible as a substantive basis for the dismissal were Findings # 7 through 18.  Those Findings did not constitute just cause as a matter of law.  The Board is bound by that decision and is obligated to consider those original admissible Findings in any subsequent proceeding.

 

4.  The Board, if it chooses to do so, can listen to the tapes of the original hearing held on June 13, 2003 and, if it hears additional facts within those tapes, that do not contradict Findings # 7 through 18 and were part of the original Employee Notice to Petitioner dated April 3, 2003, it can supplement those findings.

 

5.  This Order does not preclude the Board from simply accepting the Findings of Fact as they presently stand and reinstating the Petitioner with back pay.

 

The matter went back before the Board for consideration.  At this point, the Board was composed of completely different members than the Board that originally considered Meaton’s termination.  The new Board was advised, by outside counsel,[3] that it was only bound by the specific words contained in the findings of fact, as set forth in the Order entered June 13, 2003, but that it was free to make additional findings of fact, including findings that were specifically deleted by the previous Board in its final decision.     

            Counsel for Meaton argued that a new evidentiary hearing was unlawful.  Meaton argued that the Board was precluded from considering language that was purposefully deleted from the proposed order considered by the previous Board.  Meaton also asserted that the Board could not make a decision about just cause based on the tapes alone because the new individual Board members did not have the ability to evaluate the demeanor and credibility of the witnesses as had the original Board.

            Over Meaton’s objection, the new Board proceeded to listen to the tapes, approximately 9 to 10 hours long, of the original proceeding and, after deliberations, entered, on August 3, 2006, its Order makings 23 findings and concluding that there was just cause to terminate Meaton.  Meaton timely sought certiorari review of that Order.

Before this Court a second time, Meaton argues that the Board’s actions departed from the essential requirements of law and failed to accord Meaton due process.  In reviewing the administrative action taken by the Board, the Court must consider whether the Meaton 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); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006).  Since Meaton does not argue that the Order was not supported by competent substantial evidence, the Court need not address that prong.

            In applying the procedural due process prong, the Court must consider whether Meaton was provided with fair notice and an opportunity to be heard.  See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001)(explaining the parameters of due process within an administrative proceeding).  In determining whether the City observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice.  See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004)(explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”). 

            Meaton’s primary argument is that the City departed from the essential requirements of law and denied Meaton due process by conducting a new evidentiary hearing and entering new findings of fact.  The City responds that it was not conducting a new evidentiary hearing as the City had already “proven its case.”  Rather, the new Board was permitted to review the record to see if there were additional facts that would support Meaton’s termination.  In support of its position, the City also argues that the only reason this Court granted certiorari relief was because there was no transcript of the hearing in the record on appeal, as was Meaton’s responsibility to provide according to the Rules of Appellate Procedure.[4]

            As a preliminary matter, the City’s assertion that it had “proven its case,” such that it was lawful to have a new Board comb the record for additional facts to support Meaton’s termination, goes against this Court’s decision to quash the Board’s first Order, a decision affirmed by the Second District Court of Appeal.  See City of St. Petersburg v. Meaton, 911 So.2d 108 (Fla. 2d DCA 2005).  There is no support for the City’s argument that if the Court, in the previous certiorari action, would have had a copy of the transcript, the Court would have found competent substantial evidence to support Meaton’s termination.  Indeed, the Court granted certiorari relief because the Order contained no findings of fact to support Meaton’s termination, emphasizing that the first Board struck pertinent language from the proposed findings of fact.  Hence, even if the Court would have had the benefit of a transcript, the outcome would have been the same since it was the Board’s ultimate decision, in resolving conflicting evidence and testimony, that mandated certiorari relief.

            Next, as stated above, in quashing the Board’s decision, the Court remanded the cause for action consistent with its Order Granting Petition, citing to Broward County v. G.B.V. International, LTD., 787 So.2d 838, 844 (Fla. 2001).  Broward County holds that when an order is quashed it leaves the subject matter pending before the administrative authority as if no order had been entered.  The Florida Supreme Court explained:

When the order is quashed, as it was in this case, it leaves the subject matter, that is, the controversy pending before the tribunal, commission, or administrative authority, as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered.  Id.

 

            In adhering to Broward County, the Court declined to directly order reinstatement with back pay, particularly since it was not quashing the Order based on procedural due process grounds.  In so finding, the Court compared Meaton with a previous decision entered by the Sixth Circuit appellate court, Patterson v. City of St. Petersburg, No. 01-3044-CI-88A (Fla. 6th Cir. App. Ct. Nov. 8, 2001).  In Patterson, the Court ordered reinstatement with back pay as the City had failed to afford procedural due process to the discharged employee.  See also West v. Board of County Commissioners, Monroe County, 373 So.2d 83 (Fla. 3d DCA 1979)(ordering reinstatement with back pay when employee had been deprived of constitutionally guaranteed rights to notice or to a hearing).  

            Importantly though, in footnote 24, the Court stated:  “The Court notes that unlawful deprivation of employment, a protected property interest, may compel only one remedy, reinstatement with back pay.  See e.g. West v. Board of County Commissioners, Monroe County, 373 So.2d 83 (Fla. 3d DCA 1979)(holding that reinstatement with back pay was required for unlawfully discharged employee).”  The footnote follows the reasoning of City of Kissimmee v. Grice, 669 So.2d 307, 309 (Fla. 5th DCA 1996), wherein the Fifth District Court of Appeal found that the circuit appellate court had exceeded its certiorari review authority in directing the City of Kissimmee to reinstate Grice with back pay.  However, the Fifth District concluded with the observation, “It seems, however, that as a practical matter the quashing of the order of termination would lead to the same result as that required by the court’s order.”

            Accordingly, the Court finds that the City departed from the essential requirements of law in holding another hearing.  The Court finds that it is impossible for an entirely different Board to conduct a meaningful review of Meaton’s termination by listening to hours of previously taped hearings, without observing the demeanor of the witnesses and being able to determine the witnesses’ credibility first-hand.  In the Order Granting Petition, the Court stated:

The Court finds that these findings are either neutral or change critical language from the City’s proposed order to an extent that there can be no conclusion of just cause for Meaton’s termination for the three, Group III violations.  Importantly, the Board, as the finder of fact charged with resolving conflicts in the evidence and weighing the credibility of the witnesses,[5] could have found that Meaton had been disrespectful and confrontational, or had made disparaging or false remarks, but did not.   There are simply no findings set forth in the Order to support the offenses Meaton was charged with violating, nor did the Board set forth findings affirming the “Description of Misconduct,” to wit: that Meaton “made a number of disrespectful, ill mannered, false, and malicious statements;” that “repeated warnings . . . have not proven effective;” that Meaton abused the grievance process; or that Meaton “expressed open disdain for his entire chain of command.”  Rather, the Board deleted from the City’s proposed findings language that Meaton was “disrespectful and confrontational” toward Ms. Anderson, that Meaton filed a “grievance which included disparaging and disrespectful remarks and false characterizations against Mr. Scott,” and that Meaton made false representations to Ms. Anderson.  The Board added to its findings that Ms. Anderson perceived Meaton’s remarks to be disrespectful, which is obviously not the same as finding Meaton was disrespectful to support the conclusion of just cause for termination. (emphasis added). 

 

            As the Court cited to above, Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998), and the cases discussed therein, hold that a trial court’s final judgment carries a strong presumption of correctness.  See id..  The presumption arises from the fact that the trial court has the first-hand opportunity to hear and observe the demeanor of the witnesses as they testify and so is in a superior position to weigh the evidence and witness credibility in resolving disputed facts.  See Smiley, 704 So.2d at 205.  

            The City had the opportunity to try its case and to demonstrate, by a preponderance of the evidence, that Meaton had committed the cited offenses to support his termination.  The first Board listened to days of testimony and considered numerous exhibits before entering its Order.  As this Court painstakingly set forth in its Order Granting Petition, there simply was not competent substantial evidence in the record to support the Board’s decision.  While this Court’s hands are tied in the sense that it cannot directly order that Meaton be reinstated with back pay, it is inconceivable that the City gets the proverbial “second bite at the apple.”   As succinctly stated by one Court:  “A second bite at the apple may not be granted simply because the plaintiffs have failed to meet their burden of proof.  The flame has flickered out!”  See St. Joe Paper Company v. Connell, 299 So.2d 92, 93 (Fla. 1st DCA 1974); see also Apalachicola Northern Railroad Company v. Tyrus, 114 So.2d 33, 38-39 (Fla. 1959), reversed on other grounds, 130 So.2d 580 (Fla. 1961)(explaining that a new trial cannot be awarded on the theory that additional evidence might be available and that there is a conclusive presumption that litigants have presented all competent and material evidence at the first trial).     

The Court finds that the loss of employment invokes significant financial and emotional

stress; stress that, in this case, has been exacerbated by over four years of litigation.  Further, the City’s decision to have an entirely separate Board re-evaluate the cold record, several years after Meaton was terminated, is contrary to the intent of the Court’s previous Order Granting Certiorari and contrary to the intent of Smiley.  The Court again finds that certiorari relief must be granted and that the Order must be quashed.  It is therefore,        

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

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of May 2007.

 

                                                         _________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

_______________________________                      ______________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

Copies furnished to:

 

James A. Sheehan, Esquire

341 Third Street South

St. Petersburg, FL  33701

 

Pamela D. Cichon, Assistant City Attorney

Post Office Box 2842

St. Petersburg, FL  33731



[1] As set forth in the Order, Meaton was terminated for three Group III violations: Group III, Rule #14:  Threatening, intimidating, coercing or interfering with fellow employees, or supervision; Group III, Rule #15:  Making or publishing false, vicious, or malicious statements concerning any employee, supervisor, the City, or its operation; and, Group III, Rule #25:  Improper conduct either on or off the job, which would tend to affect the employee’s relationship to his job, his fellow employees, his reputation or goodwill in the community.

[2] The Court notes that this order is not binding on this Court, sitting in its appellate capacity.

[3] The record reflects that the City hired outside counsel to represent and advise the Board in this matter.

[4] There is nothing in the Florida Rules of Appellate Procedure, Rule 9.220, that requires either party to file a transcript of the hearing.  The 2003 version of Rule 9.220, applicable to Meaton’s first Petition, states:  “The purpose of an appendix is to permit the parties to prepare and transmit copies of such portions of the record deemed necessary to an understanding of the issues presented.”

[5] See e.g. Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(explaining that the trier of fact has the first-hand opportunity to hear and observe witnesses as they testify and is in a superior position to weigh the evidence and credibility of the witnesses).