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Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – due process – competent substantial evidence – just cause - petitioner was a regular employee and could only be fired for just cause – City gave just cause reason for petitioner’s termination which was supported by competent substantial evidence in the record – interviews showed that petitioner was, in part, responsible for creating low morale at work and for making negative comments about supervisors – City did not deny petitioner due process by not affording her a full post-termination evidentiary hearing – City’s Code only required a post-termination evidentiary hearing if employee was not provided with a full hearing before being dismissed – record showed that petitioner was provided with a full hearing prior to her termination - Petition denied.  Hurley v. City of Gulfport, Appeal No. 07-0056AP-88A (Fla. 6th Cir. App. Ct. March 7, 2008).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

ANGELA HURLEY,

                        Petitioner,                                                        

 

vs.                                                                                            Appeal No.  07-0056AP-88A                                                                        

                                                                                                UCN522007AP000056XXXXCV

CITY OF GULFPORT, FLORIDA,

                        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.  The Petitioner, Angela Hurley (Hurley), seeks review of the decision of the Respondent, City of Gulfport, Florida (City), to terminate her employment.  Upon review of the briefs, the record, and being otherwise fully advised, the Court finds that certiorari relief must be denied.

The record shows that Hurley was employed in a supervisory position as a Principal Planner for the City’s Community Development Department.  As set forth in the termination Memorandum, dated August 7, 2007, Hurley was terminated for violating the City of Gulfport Personnel Manual, Section 16.03, Sections (6) and (7), which prohibit:

(6)  Insubordination or the refusal to perform work assigned or to comply with written or verbal instructions of a supervisor. 

 

(7)  Conduct on or off duty which reflects discredit on the City or affects the efficient operation of the City.

 

Hurley was provided with a pre-termination hearing on August 2, 2007, at which she was present along with her attorney, Ryan Barack, the Human Resources Officer, Jennifer Valdes, and the Community Development Director, Frederick Metcalf.  The termination Memorandum states that an investigation was completed that indicated Hurley exhibited insubordinate conduct and conduct that undermined the authority of her superiors.  The last sentence of the Memorandum states that, “[y]ou have the right to grieve this action pursuant to Section 17 of the City of Gulfport Personnel Manual.”[1]

Hurley requested a post-termination hearing, which was held on August 22, 2007.  Hurley again appeared with her attorney, Mr. Barack.  Thomas Brobeil, City Manager, conducted the post-termination hearing and no other City employees were present.  Mr. Brobeil did not provide a list of witnesses to be called or a list of documents to presented, two of the items enumerated in 17.04(B)(1)-(6).  As the transcript of the post-termination hearing reflects, Mr. Brobeil would not permit Mr. Barack to call any witnesses to testify, but did permit Mr. Barack to question Hurley on the record.[2]  At the conclusion of the hearing, Mr. Brobeil informed Mr. Barack that he would get back with him after discussing the matter with Ms. Valdes and the City’s attorneys.  In a Memorandum, dated August 27, 2007, Mr. Brobeil upheld Hurley’s termination.

            Before this Court, Hurley argues that her termination is not supported by any evidence and that the City failed to comply with the required hearing procedure.  In her Reply, Hurley also argues that the City violated the Sunshine Act.  However, Hurley is procedurally barred from raising this new claim since it was not presented in her Petition.  See Hall v. State, 823 So.2d 757, 763 (Fla. 2002); see also Medrano v. State, 795 So.2d 1009, 1010 (Fla. 4th DCA 2001).  The standard of review applicable in reviewing administrative action taken by the City is whether Hurley was afforded procedural due process, whether the essential requirements of law were observed and whether the final decision is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006). 

            In applying the procedural due process prong, the Court must consider whether Hurley 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).  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”).

            In evaluating the last prong of review, competent substantial evidence has been described 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).  The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  See id.  

            The Court initially finds that Hurley was a regular employee and thus could only be terminated for “just cause,” which includes any offense listed in 16.03.[3]  The record supports this finding as the City cited to Section 16.03(6) and (7) as the basis for her termination.  The Court next finds that there is competent substantial evidence in the record to support the City’s decision to terminate Hurley.  The City conducted an in-depth investigation wherein several City employees were interviewed.  These interviews were compiled and presented in a 9-page report submitted by Mr. Metcalf on July 17, 2007.  Within the report, there were concerns expressed by several employees that Hurley was, in part, responsible for creating a work environment with low morale and that Hurley made negative comments about her superiors. 

            During her interview, Hurley expressed her opinion that “[t]his investigation and past investigations were not done properly and statements have been misconstrued to meet an end that someone has already decided what they want.”  While Hurley did not have any adverse employment history up until she was put on paid administrative leave, on July 26, 2007, the investigation report authored by Mr. Metcalf is sufficient evidence to support the City’s decision. See Trimble, supra.; Dusseau, supra.   The Court is prohibited from reweighing the evidence to reach a different conclusion.  See id. 

            Hurley also argues that the City failed to afford her a full post-termination evidentiary hearing as required by the Manual, Section 17.04, in violation of her due process rights.  The City must adhere to the requirements set forth in its Manual, which are subject to the rules of statutory construction.  See Rinker Materials Corp. v. City of North Miami Beach, 286 So.2d 552, 553 (Fla. 1973).  Section 17.04(B), states, in part:

            In the event the City Manager does not hold a full evidentiary hearing before an

employee’s suspension, demotion, or dismissal under Section 16.05, a regular employee who has been suspended, dismissed, or demoted shall be entitled to a post-disciplinary hearing as follows:  (emphasis added).

 

            Section 17.04(B)(1) through (6), then sets forth several things that the City must do in a post-disciplinary hearing, including that the City Manager provide a list of witnesses to be called and a list of documents to be presented.  Contrary to Hurley’s argument, the plain language of the Manual states that the City is required to provide a full post-disciplinary evidentiary hearing only if the employee was not provided with a full hearing before the employee’s dismissal.  The record shows that Hurley was provided with a full hearing prior to her dismissal, in compliance with Section 16.05.  The Memorandum, dated July 26, 2007, wherein Mr. Metcalf placed Hurley on paid administrative leave, states:

Prior to determining the appropriate discipline in the matter, I am scheduling a Pre-Termination Hearing to be held in my office at 9:00 AM on August 2, 2007.  This will afford you an opportunity to give arguments as to why you should not be terminated from employment with the City of Gulfport.  You may attend the hearing, or you may submit a written document, or you may do both.  If you have written documents that you wish me to consider in my decision, please forward them to my office no later than August 1, 2007. 

 

            The follow-up Memorandum, dated August 7, 2007, provides that Hurley did attend her pre-termination hearing, accompanied by her attorney, Mr. Barack.  Unlike the requirements of the City Manager in conducting a post-termination hearing, a pre-termination hearing simply requires that the employee have the right “to present evidence, examine or cross-examine witnesses, be represented by counsel of his/her choice and present his or her position orally or in writing before final action is taken.”  See Manual, Section 16.05.  There are no specific requirements of the City Manager in conducting a pre-termination hearing.[4]  Accordingly, the Court finds that the City lawfully applied the proper disciplinary procedure established by its Manual.

Lastly, the parameters of due process are that an employee be given adequate notice of charges against him/her before a hearing on those charges and an opportunity to be heard.  See Keys Citizen for Responsible Government, Inc., supra.; see also West v. Board of County Commissioners, 373 So.2d 83, 85 (Fla. 3d DCA 1979)(explaining that since there was no adequate notice of the charges against him, the subsequent hearing on those “charges” was itself not a fair opportunity to be heard to which employee was entitled); Creel v. District Board of Trustees of Brevard Community College, 785 So.2d 1285, 1287 (Fla. 5th DCA 2001)(concluding that the administrative law judge deprived employee of procedural due process by addressing an issue that was not noticed or otherwise raised at the hearing).  There is nothing in the record to suggest that Hurley was not provided with adequate notice of the charges against her or that she was prohibited from calling her own witnesses or presenting evidence during her pre-termination hearing.  The Court concludes that Hurley was afforded due process and that City adhered to the essential requirements of law. 

Therefore, it is,

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

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2008.

 

 

 

                                                         _________________________________

                                                         JOHN A. SCHAEFER

                                                         Circuit Judge, Appellate Division

 

 

 

 

 

_______________________________                      ______________________________

GEORGE M. JIROTKA                                          GEORGE W. GREER

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Ryan D. Barack, Esquire

133 North Fort Harrison Ave.

Clearwater, FL  33755

 

Thomas M. Gonzalez, Esquire

Brian C. Ussery, Esquire

Post Office Box 639

Tampa, FL  33601-0639



 

[1] There is no transcript of the August 2nd hearing.

[2] In addition to herself, the only other witness Hurley requested to call was Ms. Valdes, the Human Resources Officer, whom Mr. Brobeil would not permit to testify.

[3] Section 7.01 distinguishes between regular employees and employees that are probationary.  Probationary employees are not entitled to utilize the City’s grievance procedure.

[4] The Court notes the apparent inconsistencies between the requirements of a pre- and post-disciplinary hearing.  To ensure fairness and due process, the City may want to consider implementing similar requirements for both hearings.