NOTICE: THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL
UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE
REVIEW AND, IF FILED, DETERMINED
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
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 07-0056AP-88A
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,
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
(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
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. 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 (
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 (
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 (
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. 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
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:
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
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. 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.
AND ORDERED in Chambers, at
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
Thomas M. Gonzalez, Esquire
Brian C. Ussery, Esquire
Post Office Box 639
 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.
 Section 7.01 distinguishes between regular employees and employees that are probationary. Probationary employees are not entitled to utilize the City’s grievance procedure.
 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.