Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT Termination Unified Personnel Board observed the essential requirements of law interpreting Pinellas County Personnel Rule XXIV (J), the "Standard Ranges of Disciplinary Actions." Competent, substantial evidence supported the Board's action in upholding Petitioner's discharge from employment. Petition denied.  Schneider v. Pinellas County, Florida, No. 10-000047AP-88A (Fla. 6th Cir. App. Ct. September 13, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

RICHARD SCHNEIDER

Petitioner, Case No.: 10-000047AP-88A

UCN: 522010AP000047XXXXCV

 

v.

 

PINELLAS COUNTY, FLORIDA

Respondent.

______________________/

 

Opinion Filed ______________

 

Petition for Writ of Certiorari

from decision of Unified Personnel

Board, Pinellas County, Florida

 

Ryan D. Barack, Esq.

Michelle Erin Nadeau, Esq.

Attorneys for Petitioner

 

Christy Donovan Pemberton, Esq.

Attorney for Respondent

 

 

PER CURIAM.

Richard Schneider seeks certiorari review of the Pinellas County Unified Personnel Board's (the "Board") decision upholding his discharge from employment with the Pinellas County Public Works and Operations Department. Upon review of the petition, response, reply, and appendices, this Court dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. The petition is denied.

Statement of Facts

Mr. Schneider was employed with Pinellas County Public Works Division as an "Automotive Equipment Operator III." Mr. Schneider has conceded that a Commercial Drivers License (CDL) is a requirement for employment as an Automotive Equipment Operator III. Mr. Schneider held a CDL prior to his arrest for driving while under the influence ("DUI") on May 23, 2010, when his license was suspended. Mr. Schneider was discharged from employment on July 6, 2010, and he appealed his termination. A hearing was conducted before the Board on September 2, 2010.

The "Amended Findings and Decision" of the Board was entered on September 27, 2010. The order states that Mr. Schneider's employment was terminated for violation of Pinellas County Personnel Rule XXIV(J)(41) "in that possession of a valid driver's license without restrictions was a requirement of his job and his license had been suspended." The Board concluded that Mr. Schneider had failed to meet the burden of proof necessary to overturn the decision of the Appointing Authority/

Department and found that the discharge from employment was appropriate and the decision was upheld.

Testimony at the Appeal Hearing

At the September 2, 2010, hearing before the Board, in their opening statements both counsel for Mr. Schneider and counsel representing the Pinellas County Public Works and Operations Department (the "Department") stated that the only issue for the Board to decide is whether the disciplinary action taken in this matter was appropriate. There is no question that Mr. Schneider was an excellent employee who performed his job well. Testimony was received from numerous witnesses who confirmed that Mr. Schneider was a valued employee and his job performance was not a reason for his discharge.

The Pinellas County Personnel Rules were admitted into evidence. Rule XXIV(J) sets forth the "Standard Ranges of Disciplinary Actions" and states:

The following standard ranges of disciplinary actions are guidelines only and have been established to help ensure that all employees receive similar treatment in like circumstances. The recommended disciplinary action is normally the penalty which should be imposed; however, a violation of any offense is subject to discipline ranging from oral reminder to discharge depending on the circumstances which make a greater or lesser action more appropriate than the one suggested. The impact of the offense will be an important factor in determining the severity of the disciplinary action. Realizing that some of the offenses and deficiencies listed will be more serious and more frequent in certain cases, the person taking the disciplinary action must utilize good judgment in light of all available facts in each case. . . .

. . . .

The totality of the employee's work record and any mitigating circumstances should always be considered when making decisions regarding disciplinary action.

 

As noted above, Mr. Schneider's employment was terminated for violation of Rule XXIV(J)(41). This subsection states: "That the employee, whose position requires the operation of a motor vehicle in the performance of assigned duties, has a suspended driver's license or fails to advise the supervisor that the driver's license has been suspended or revoked." For the first offense the suggested action to be taken is "[d]emotion or dismissal."

A review of the evidence of record demonstrates that in the "Pre-Hearing Conference Statement" for the appeal the parties stipulated that at the time he was discharged, Mr. Schneider's CDL drivers' license had been suspended. At the hearing, counsel for Mr. Schneider confirmed that Mr. Schneider's CDL drivers' license still was suspended. (Tr. 16-17).

Numerous witnesses testified at the appeal hearing. Susan Bartlett, Public Works Operations Assistant Director testified concerning the employment requirements for the position of "Automotive Equipment Operator III" as detailed in the "Position Requirement Profile." (Tr. 34-35, App. XI). The Profile indicates that the purpose of the position is the skilled operation of a "slope mower and common types of construction equipment." The essential tasks and functions of the position are listed as:

OPERATION OF ONE OR MORE OF THE FOLLOWING GRADER, SLOPE MOWER, SHAKER, VACTOR TRUCK, STREET SWEEPER, LOADER, MEDIUM SIZED BACKHOES, DOZER, CONCRETE TRUCK, BLADING TRACTOR, DRIVE TIMBERCAT MACHINE, TANKER TRUCK (OVER 5000 GALS). SET UP SAFETY SIGNS, BARRICADES AND ACT AS FLAG PERSON WHEN NECESSARY. ABILITY TO PERFORM ASSIGNMENTS REQUESTED ORALLY OR IN WRITING. ABILITY TO COMPLETE ACCURATE ACCIDENT OR OTHER ROUTINE REPORTS AS WELL AS PAYROLL SHEETS. PERFORMS RELATED WORK AS ASSIGNED OR REQUIRED IN A SAFE, PRODUCTIVE AND EFFICIENT MANNER. COMMERCIAL DRIVER'S LICENSE B REQUIRED WITH ENDORSEMENT.

 

Ms. Bartlett testified concerning the Department's mission statement. She explained that the employees of the Department are "first responders" in emergencies:

We're the ones who go out and clear the roads. We're the ones that make sure that all of these emergency provisions are done so we can restore the county back and get, you know help in search and rescue and all those things. So [the mission statement] actually says that we're assisting fire, police, emergency personnel and citizens by clearing and maintaining the road network . . . .

 

(Tr. 37).

Ms. Bartlett explained that the Department has a procedure when an employee's drivers' license has been suspended. If a position exists, the employee is allowed to work at a lower maintenance job position to give employees time to have their licenses reinstated. "Unfortunately, the last couple of years we haven't had the positions and we've had to terminate other people too that have lost their license because we don't have a place for them to go." (Tr. 38).

Ms. Bartlett testified that she attended the predisciplinary hearing to evaluate what options were available to Mr. Schneider. At that hearing, Mr. Schneider indicated that he had a court date on the DUI charge, but did not know when his CDL would be reinstated. (Tr. 31) Ms. Bartlett testified that at the time of the predisciplinary hearing, there were three positions available at a pay grade equal or lower than Mr. Schneider's, but all three required a CDL. (Tr. 35-36).

Ms. Bartlett testified that she searched the whole department and found two positions that did not require a CDL, but they were both above Mr. Schneider's pay grade: a division manager and an accountant II. (Tr. 43). These positions, if Mr. Schneider was qualified to take them, would not have been demotions.

Ms. Bartlett testified that there were three instances before Mr. Schneider's DUI in which the Public Works Department attempted to find alternate positions for employees. In those cases, one worker's employment was terminated and two resigned. (Tr. 41-42).

John Lemonias, project coordinator, project management for Public Works Operations testified that over the last four years he has conducted predisciplinary hearings for three employees who had their licenses suspended for DUI. He confirmed Ms. Bartlett's testimony that of those three employees, two resigned and one had his employment terminated. (Tr. 44).

Dennis Grizzell, Assistant District Operations Manager for permitted storm water facilities testified. He gave a description of the responsibilities required of Mr. Schneider to perform his job. The crew on a daily basis would take the "Vactor" truck to clean storm drainpipes. A CDL is required to drive the truck and both individuals on the Vactor truck are required to have a CDL so they can move the truck. (Tr. 47-48).

Mr. Grizzell stated that for a week or more after Mr. Schneider lost his license, Mr. Schneider was on the Vactor truck crew. Because Mr. Schneider did not have a CDL, the crew chief was required to drive the Vactor truck to the job site. Mr. Grizzell indicated that the costs of operation for the County were driven up to accommodate Mr. Schneider due to his lack of a CDL. (Tr. 48-49, 51-52). Mr. Schneider's inability to drive required sending three-man crews to work sites rather than only a two-man crew as was necessary.

Jorge Quintas, Pinellas County Director of Operations for Public Works testified. He was the supervisor who made the decision to terminate Mr. Schneider's employment. Mr. Quintas stated that the County made temporary accommodations for Mr. Schneider before the disciplinary hearing. These accommodations caused the County to incur additional costs. (Tr. 60-62). He testified:

I reviewed Personnel Rule 24J41 as far as our availability of options with respect to the loss of his CDL and the requirement for that position, so weighing all that and the needs of the division with respect to day-to-day operations as well as our ability to meet our mission with respect to response in an emergency situation where we have to be able to rotate staff through different multiple shifts in order to meet our obligation for our first responder and debris clearing post-storm. I have to take all those things in consideration whether or not we could accommodate an employee in his capacity without a CDL.

 

(Tr. 58). Mr. Quintas stated that he could not demote Mr. Schneider because, as explained by Ms. Bartlett, there was no position into which to demote him that did not require a CDL. (Tr. 58-59). Mr. Quintas confirmed that the three other Department employees who in the past few years lost their CDLs were either terminated or resigned. (Tr. 59). Mr. Quintas discussed the reduction in staff for the Public Works Department and indicated that future reductions in force would include staff members who held CDLs. (Tr. 65-66).

James Valliere, Pinellas County Human Resources Coordinator testified. He was asked the current practice in the County Administrator's Department when an employee who is required to have a drivers' license for employment loses his or her license. Mr. Valliere stated:

Currently, the practice is when the position entails the requirement that the employee holds a driver's license, whether [it] be a regular class E or a CDL depending upon the position. The department should look within its department roster to see if they have a current, vacant valid position in which to potential discipline [sic] or demote the employee for a period of time to allow them to get the license back. Should there be none of those positions available in which to demote the employee, it has been a practice of the county administrator's department to terminate the employee.

 

(Tr. 72-73). When questioned about whether the practice in the past was different, Mr. Valliere responded:

Prior to the unfortunate budget cost [sic] that we have been going through in the last few years, the departments had more vacancies within their departments and generally when this type of situation occurred, departments did have the flexibility and did have vacant valid positions in which they could demote employees to and they were able to do so. But with the budget cuts of the last few years and the fewer vacancies available or no vacancies in some departments, they have not been able to utilize the demotion aspect of the policy, so they have been forced to terminate people.

 

(Tr. 73).

On cross-examination Mr. Valliere was asked by counsel for Mr. Schneider if there was a disciplinary rule that requires consideration of budgetary constraints in making disciplinary decisions. Mr. Valliere stated there was not. (Tr. 73-74). A board member inquired of Mr. Valliere concerning the County's policy of attempting to place employees who have lost their drivers' licenses in other county positions rather than discharging them from employment. The board member summarized, "Basically, my thinking is that, would you describe was, if policy hadn't changed, you just have more flexibility in the past because you have more positions?" Mr. Valliere responded, "That is correct." (Tr. 76).

Richard Schneider testified. He confirmed that on the date of the appeal hearing he did not possess a CDL and his criminal trial was pending.[1] (Tr. 80). Mr. Schneider testified about the accommodations made for him by his supervisor after his license was suspended, before he was discharged.

Carol Weinstein, Crew Chief II on the Vactor truck for Pinellas County Public Works testified. She was Mr. Schneider's direct supervisor. She testified that for a week and a half she and Mr. Schneider worked on the Vactor truck together. She was asked how that worked out. Ms. Weinstein responded, "At times, it was a little bit difficult." (Tr. 90-91). She indicated she would not want to have a crew member on the Vactor truck without a CDL for an extended period of time.

Robert Barter of the Pinellas County Fleet Management Department testified on behalf of Mr. Schneider that he is a mechanic supervisor and approximately six years ago he was Mr. Schneider's supervisor. When questioned about his employment with the County after he received a DUI, Mr. Barter indicated that he did not keep the same function in his job. He was removed from his position and demoted to a "motor pull technician." One year after his demotion he reapplied for his previous job in the Fleet Management Department and he was reinstated. (Tr. 96-97). Mr. Barter stated that he knew of Douglas Abscher, a mechanic supervisor also in the Fleet Management Department, who received a DUI in the past. Mr. Abscher at one time also had been Mr. Schneider's supervisor. Mr. Abscher still holds the same position as a mechanic supervisor. (Tr. 97-99).

On cross-examination Mr. Barter elaborated and stated that he received his DUI in 2002. He explained that his position as a mechanic supervisor in the Fleet Management Department requires him to direct and coordinate work in the main shop to the mechanics. "I'm not down the road required to drive as a core function of my position." (Tr. 100). Mr. Barter stated that he was a required to have a license, but "it wasn't an essential function in my position." (Tr. 101). No other witnesses were called by Mr. Schneider.

The Personnel Board's Decision

The members of the Board discussed the fact that County layoffs were anticipated. Members questioned whether the budgetary issues should influence the decision of whether to overturn Mr. Schneider's discharge. It was observed that the County was in a dilemma because there was no other position into which to place Mr. Schneider. One member of the board felt that consideration of the budgetary issues in making the decision concerning whether to uphold the discharge was unjust. Another member opined that the total context of the situation was relevant to the decision. (Tr. 109-113).

A member of the Board pointed out that rule XXIV(J)(41) provides that when an employee, whose position requires the operation of a motor vehicle, has a suspended driver's license, the discipline to be imposed is demotion or discharge. The board member opined that because demotion is an option, consideration of whether another position in the Department exists into which to demote an employee falls within the personnel rule. (Tr. 113).

During deliberations, a member of the board made an inquiry of Peggy Rowe, the Director of Pinellas County Human Resources, who had not been called as a witness in the proceedings. She was asked, if the Board determined that the discharge was inappropriate, did the Board have the authority to remand the case to County Administration to have other departments in the County searched for a vacancy that did not require a CDL. Ms. Rowe responded that the Board was empowered to make such a requirement on remand. She stated that the County Administration would conduct the search, if that was the desire of the Board. However, she opined that the odds of finding a job in another department were extremely slim. (Tr. 115-16).

Mr. Schneider's discharge was upheld by the Board with a vote of five to one.

Petition for Writ of Certiorari

Counsel for Mr. Schneider argued to the Board at the appeal hearing, and argues to this Court, that the only reason Mr. Schneider was terminated was the purported lack of an available position into which to demote him. In the petition, Mr. Schneider asserts that due to budgetary issues beyond Mr. Schneider's control he is being treated more harshly than other employees who committed similar or worse violations of the personnel rules. The argument is made that the personnel rules do not allow the Board to consider "non-enumerated factors outside the employee's control, like the County's current budget, when evaluating discipline." Counsel also complains that during deliberations the Board considered unsworn statements of Ms. Rowe that at the time of the appeal hearing it was unlikely that a position into which to place Mr. Schneider could be found in other county departments.

Standard of Review

This Court in its appellate capacity has jurisdiction to review this matter under Florida Rule of Appellate Procedure 9.100. We must decide (1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether there was competent, substantial evidence to support the findings of the Personnel Board. See Falk v. Scott, 19 So. 3d 1103, 1104 (Fla. 2d DCA 2009). This Court is not entitled to reweigh the evidence or substitute its judgment for that of the Board. See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

Analysis

Procedural Due Process

Procedural due process requires both fair notice and a real opportunity to be heard at a meaningful time and in a meaningful manner. Massey v. Charlotte County, 842 So. 2d 142, 146 (Fla. 2d DCA 2003). There are no allegations and no evidence presented that procedural due process was not was accorded.

Essential Requirements of the Law

What constitutes a departure from the essential requirements of the law has not been clearly defined and depends upon the particular case. In re Dahl's Estate, 125 So. 2d 332, 337 (Fla. 2d DCA 1960). "In determining whether there was such a departure, the reviewing court may ascertain whether the [Board] proceeded in conformity with basic principles of law relating to the procedure for reaching the ultimate decision of the cause." Id.

It is the task of the personnel department to interpret and apply the personnel rules. Such interpretation and application must be done in a rational fashion and is entitled to judicial deference as long as it 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); see also Bd. of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995).

In reaching its ruling, the Board interpreted Pinellas County Personnel Rule XXIV(J) for the "Standard Ranges of Disciplinary Actions." The rule provides that the ranges set forth in the rule "are guidelines only" and "[t]he impact of the offense will be an important factor in determining the severity of the disciplinary action." Further, the rule states that the person taking the disciplinary action must utilize "good judgment in light of all available facts in each case."

As discussed above, a member of the board pointed out that the personnel rules provide that the range of discipline for the offense committed by Mr. Schneider was demotion or discharge. It is logical to conclude that in order for demotion to be considered as a viable option for disciplinary action, the supervisor must determine whether there is a position into which to demote the employee. The Court concludes that evaluation of whether there are available positions was not an improper exercise by Mr. Schneider's supervisor.

Counsel for Mr. Schneider argued that it was not appropriate for Mr. Schneider's supervisor or the Board to consider budgetary issues in relation to whether Mr. Schneider should be terminated and the County disciplinary rules do not allow for the consideration of economic issues. However, rule XXIV(J) does provide that the "impact" of the offense is an important factor to be considered.

In this case, the impact of Mr. Schneider's continued employment as it related to the workforce of the Public Works Department, as it related to Mr. Schneider's immediate co-workers, and as it related to his ability to be a "first responder" were considered. The rule provides that the supervisor making the disciplinary decision is to evaluate all available facts in the case. In the present case, such an analysis included budgetary issues which this Court finds was appropriate.

The Court concludes that the Board observed the essential requirements of law in upholding Mr. Schneider's discharge from employment by the Department.

Competent, Substantial Evidence

Mr. Schneider asserts that in reaching its decision to uphold the discharge, the Board improperly relied upon the statements of Ms. Rowe. It is asserted that Ms. Rowe's statements were inappropriate and this Court cannot guess what may have happened had this exchange not occurred. Counsel for Mr. Schneider argues that it is "apparent" that the Board relied on Ms. Rowe's statements and counsel speculates that Mr. Schneider's discharge would not have been upheld without these statements that were not in evidence.

This Court agrees that the Board's action in questioning Ms. Rowe after the conclusion of the presentation of evidence was inappropriate. The act of engaging in a dialogue with an unsworn, non-witness during deliberations was unacceptable and such an act should not be tolerated in the future. However, in the present case, upon reviewing all the evidence of record we conclude that this improper act only amounted to harmless error. It is clear that competent, substantial evidence supports the decision of the Board in upholding Mr. Schneider's discharge from employment by the Department.

The Petition for Writ of Certiorari is DENIED.

 

DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of September, 2011.

 

Original order entered on September 13, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

Copies furnished to:

 

Ryan D. Barack, Esq.

Michelle Erin Nadeau, Esq.

133 North Ft. Harrison Ave.

Clearwater, FL 33755

 

John A. Powell, Jr., Sr. Asst. County Atty

Christy Donovan Pemberton, Sr. Asst. County Atty

315 Court Street, 6th Floor

Clearwater, FL 33756



[1] On March 22, 2011, in State v. Schneider, Case No. CTC10-5442XDVASP, Mr. Schneider entered a no contest plea and his license was revoked for six months.