Opinion
No. 99-01297.
Opinion filed January 12, 2000.
Appeal from nonfinal order of the Circuit Court for Polk County; Harvey A. Kornstein, Judge.
Mitchell D. Franks, Robert M. Brush, and E. Alexander Pujol of Lane, Trohn, Bertrand Vreeland, P.A., Lakeland, for Appellant.
Thomas M. Gonzalez, Mark A. Hanley, and Gregory A. Hearing of Thompson, Sizemore Gonzalez, P.A., Tampa, for Appellees.
Susan S. Goreck (the Appellant), as personal representative of the estate of Gary L. Goreck (Goreck), appeals the trial court's order granting summary judgment in favor of Police Chief Paul R. Rumbley (Chief Rumbley), City Manager Ernest Tyler (the City Manager), and the City of Lake Wales (the City). We reverse because there remains a factual issue as to whether Goreck was accorded due process during the City's grievance procedure.
In 1993, Goreck was a sergeant with the Lake Wales Police Department. In April, Chief Rumbley initiated an internal affairs investigation based on a complaint that Goreck had used inappropriate language in referring to Chief Rumbley and to a subordinate officer. Following that investigation, the department gave Goreck notice of a scheduled pre-disciplinary hearing which would address his alleged statements. A panel consisting of a captain, two lieutenants, and Chief Rumbley conducted the pre-disciplinary hearing. Chief Rumbley thereafter suspended Goreck for one day and demoted him from sergeant to police officer II.
Goreck invoked the City's grievance procedure and requested a three-person panel to hear his complaint. Greg McMasters, an assistant city manager and one of the three grievance committee members, testified regarding a conversation he had with the City Manager before the grievance committee convened. According to McMasters, the City Manager told him of his dislike for Goreck and stated that Chief Rumbley's decision to demote Goreck "should not be fought." The City Manager then stated: "I need you to help me and take care of this." At the time, McMasters perceived himself to be the City Manager's "hatchet man." The City Manager denied that this conversation took place.
The three-member panel upheld the City's procedural handling of the entire matter but voted 2-1 against the demotion, with McMasters being the sole dissenter. The City Manager thereafter overruled the recommendation of the grievance committee and affirmed the discipline in its entirety. Goreck responded by filing a lawsuit against Chief Rumbley, the City Manager, and the City, alleging that he was denied due process. Upon Goreck's death in 1996, the Appellant was substituted as the plaintiff in the trial court. Thereafter, the trial court entered summary judgment against the Appellant, finding that there were no factual issues to be resolved and that, as a matter of law, Goreck was afforded minimum due process in accordance with the United States Constitution and federal laws. The Appellant sought review in this court.
Florida courts have recognized that the Police Officers' Bill of Rights, sections 112.531- 112.535, Florida Statutes (1993), gives police officers a property interest in their positions.See Department of Highway Safety Motor Vehicles v. Schluter, 705 So.2d 81, 83 (Fla. 1st DCA 1997);Grice v. City of Kissimmee, 697 So.2d 186, 190 (Fla. 5th DCA 1997). Therefore, the remaining issue to be resolved is whether Goreck was accorded due process of law during the pre-disciplinary and grievance procedures. See Grice, 697 So.2d at 190 (when an employee has a property interest in a position, the employer must afford due process before depriving the employee of that position). While we agree that the pre-disciplinary and grievance committee procedures followed by the police department and the City provided Goreck with the minimum procedural due process requirements, we conclude that there remains a factual issue as to whether the City Manager's actions deprived Goreck of substantive due process during the grievance procedure.See Housing Auth. of City of Tampa v. Robinson, 464 So.2d 158, 165 (Fla. 2d DCA 1985) ("a substantive due process cause of action necessitates proof that [the employee] was terminated in an arbitrary and capricious manner and for an improper motive").
There was testimony to indicate that the City Manager expressed his personal dislike of Goreck and maneuvered one-third of the grievance committee to vote against Goreck on all issues. Thereafter, the City Manager unilaterally overruled the grievance committee and affirmed Goreck's discipline in its entirety. This creates a factual issue as to whether the City Manager's actions denied Goreck substantive due process. Accordingly, we find that the trial court erred in granting summary judgment and remand the cause for trial. See Elder v. Highlands County Bd. Of County Comm'rs, 497 So.2d 1334, 1335 (Fla. 2d DCA 1986) (holding that it is error to grant summary judgment where a question of fact exists with respect to whether a petitioner was denied due process by his employer in a termination proceeding).
Reversed and remanded.
FULMER and GREEN, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.