Krieger v. Florida Fish and Wildlife Conservation Commission
2017 Fla. App. LEXIS 7816
Fla. Dist. Ct. App. 6th2017Background
- Douglas Krieger, a Fish and Wildlife law enforcement officer, was repeatedly instructed (Dec 4, Jan 9, Jan 30, Feb 18) to avoid patrolling John Pennekamp State Park and to concentrate boat patrols on the southern portion of his zone (Whale Harbor to Vaca Cut).
- Supervisors observed alleged loafing and poor enforcement activity; Haney and Beaton documented orders, moved Krieger’s vessel, and memorialized expectations in memoranda and email.
- An inspector general investigation (reviewing GPS, dispatch logs, reports, and surveillance) concluded Krieger repeatedly entered Pennekamp and failed to patrol the southern zone as directed.
- Krieger received a pre-determination notice specifying the alleged rule violations and was given a pre-termination hearing; the final termination letter added more dates and detail.
- Krieger appealed to the Public Employees Relations Commission (PERC); after a four-day hearing the hearing officer and PERC upheld termination for insubordination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pretermination due process was violated because termination relied on reasons not in the pre-determination letter | Krieger: termination included reasons/dates not disclosed earlier, so Loudermill notice was inadequate | Agency: pre-determination and termination letters sufficiently notified Krieger; added detail in termination is permissible after hearing | Court: No due process violation — notice, explanation of evidence, and hearing were provided (Loudermill satisfied) |
| Whether the order to patrol the southern zone was unconstitutionally vague | Krieger: order was vague so cannot support insubordination | Agency: orders (oral, email, memo) repeatedly and specifically directed patrol from Whale Harbor to Vaca Cut | Court: Order was not vague; substantial evidence supports that Krieger understood the directive |
| Whether Krieger’s conduct was performance-related (requiring a PIP) rather than insubordination | Krieger: issues were performance concerns; regulations call for improvement plans | Agency: conduct met definition of insubordination — deliberate refusal to follow reasonable job-related orders | Court: Conduct was insubordination, not merely inadequate performance; termination permissible under regulations |
| Whether substantial evidence supported findings and remedy | Krieger: factual findings and the severity of termination were unwarranted | Agency: investigation evidence (GPS, logs, video) supports findings; termination is justified for repeated insubordination | Court: PERC’s order is supported by competent, substantial evidence; termination affirmed |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (public employee entitled to pretermination notice, explanation of evidence, and opportunity to respond)
- Declet v. Dep’t of Children & Families, 776 So. 2d 1000 (Fla. 5th DCA 2001) (agency orders must be upheld if supported by competent substantial evidence)
- Pasco Cty. Sch. Bd. v. Fla. Pub. Employees Relations Comm’n, 353 So. 2d 108 (Fla. 1st DCA 1977) (appellate court will not reweigh agency fact-finding where competent substantial evidence exists)
- Wright v. Simpson, 891 So. 2d 1122 (Fla. 4th DCA 2004) (pretermination letters need only be clear enough to apprise employee of charges and basis)
- Hous. Auth. of City of St. Petersburg v. White, 617 So. 2d 717 (Fla. 2d DCA 1993) (reiterating Loudermill’s minimal pretermination requirements)