No. W-440 | Fla. Dist. Ct. App. | May 23, 1975
Lead Opinion
This is a petition for a writ of certiorari seeking to reverse the Order of the Career Service Commission which “amended” the University of Florida’s action in firing an employee who was caught stealing University property.
The “amended order” almost amounted to making a nullity of the University of Florida’s Order of dismissal of the employee.
The opening statement of the case as contained at page v of the Brief of the Career Service Commission gives us about the whole picture as it existed, and we will not attempt to improve thereon:
“The University of Florida discharged the employee, Hopkins, for misappropriation of University property. The employee, Hopkins, appealed said dismissal to the Career Service Commission. The Career Service Commission heard the appeal and entered its order dated August 16, 1974. The Respondent, University of Florida, filed its Petition for Writ of Certiorari seeking review of the Career Service Commission’s order.”
The employee was caught stealing, and when caught, confessed. There were other
The Career Service Commission, admitting the guilt of this employee but refusing to hear evidence as to other wrongdoings, summarily reversed the University of Florida, and without statutory authority amended the dismissal to a suspension of about 6 months. We cannot find any statutory authority for the Career Service Commission to alter the judgment of the University of Florida’s employing authority by altering the length of time for dismissal. The statute does authorize the Career Service Commission to affirm, to reinstate with or without back pay; but it cannot affirm the finding of guilt and then mitigate the sentence in any other manner than to reinstate without pay.
If this is the correct procedure as followed in this case, we think the Legislature should revise the powers of the Career Service Commission to make it the last court of appeal. Under the rules as now promulgated, it is a useless waste of time for the courts to review the Career Service Commission because we have our hands tied to agreeing with the Commission. We cannot conjure up a set of facts in which we could not agree with the conclusion of the Commission, as laid down by its rules of procedure.
We do not think this was the intent of the Legislature and, we reverse the Order of the Career Service Commission and reinstate the University’s dismissal of the employee, Mr. Hopkins.
Concurrence Opinion
(specially concurring).
I agree with the conclusion of the foregoing opinion, and I, too, do not believe the Legislature intended by the statute (Chapter 110, Florida Statutes) to make a rubber stamp of this court to approve whatever action the Career Service Commission might take in reinstating an employee who has been discharged by the employer for committing an act for which the penalty approved by the Department of Administration is discharge. It is my view, however, that the intent and proper construction of the statute is that if, from the evidence presented at the hearing before the Career Service Commission, the Commission finds (based upon competent substantial evidence) that the employee committed the act or acts with which he was charged and that the penalty assessed by the employer was a penalty prescribed or approved by the Department of Administration for one who commits such act, and there were no extenuating circumstances shown by competent substantial evidence which justified his act, the Career Service Commission has no choice other than to affirm the action of the employer. Should it not do so, its action of nonaf-firmance would not be based upon competent substantial evidence.
If, on the other hand, the Career Service Commission finds (based upon competent substantial evidence) that the employee was not guilty of the act charged against him or was guilty but there were extenuating circumstances which justified same, then under the statute it may reinstate the employee either with or without back pay.
If we took the view that the statute means that the Career Service Commission may in its sole discretion reinstate the employee with or without back pay, there would be no meaning or purpose to a review by this court. If the Legislature intends such, it should so state and make the Career Service Commission the final appellate body whose action is not subject to further appellate review as suggested by the foregoing opinion.
In the case sub judice, petitioner took and gave University property to a fellow employee. He undeniably committed the