CopyCited 13 times | Published | Florida 1st District Court of Appeal | 2001 WL 1013598
...Accordingly, we do not consider its arguments in this appeal. We do, however, commend the professionalism of the agency's legal counsel in reaching, and standing by, the settlement at the administrative level. III. PERC'S ERRONEOUS REJECTION OF THE STIPULATION AS TO ATTORNEY'S FEES PERC asserts that section 447.208(3)(e), Florida Statutes, gives it the authority to reject virtually any settlement agreement for attorney's fees in a state Career Service System case. Section 447.208(3)(e), Florida Statutes states: Any order of the commission issued pursuant to this subsection may include back pay, if applicable, and an amount, to be determined by the commission and paid by the agency, for reasonable attorney's fe...
...orting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.'" (quoting Holly v. Auld,
450 So.2d 217, 219 (Fla.1984))). Thus, PERC's construction is not due any deference from this court. Section
447.208(3)(e), Florida Statutes, applies when PERC is called upon to "determine" an amount of reasonable attorney's fees....
...ject a stipulation unless it is contrary to the language or intent of chapter 447. See id. at 451. Once this requirement is met, *692 and PERC decides to reject the stipulation, then the parties must be afforded due process. Because PERC interpreted section 447.208(3)(e), Florida Statutes, as giving it the responsibility to protect state coffers, not only from claimant's lawyers, but also from the considered decisions of sister agencies, it mistakenly concluded that it had the power to simply reject the present stipulation as contrary to section 447.208(3)(e)....
CopyCited 10 times | Published | District Court, S.D. Florida | 2002 U.S. Dist. LEXIS 16274, 2002 WL 1575590
...During that hearing the Commission was required to consider "action taken with respect to similar conduct by other employees" and Plaintiffs' counsel presented evidence of milder punishments given to over twenty different employees. See Fla. Stat. § 447.208(3)(d)(1)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1999 WL 69631
...1st DCA 1986). The petition PERC denied did not seek to initiate a new proceeding. [6] Mr. Mathis's petition sought resolution of an as yet unresolved issue that was properly before PERC by virtue of the administrative appeal he had duly instituted. Section 447.208(3)(e), Florida Statutes (1995), provides: "Any order of the commission issued pursuant to this subsection may include back pay, if applicable...." Mr....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1988 WL 47244
...958,
90 S.Ct. 2164,
26 L.Ed.2d 542 (1970). In this case, the three elements necessary for a finding of duress are present. We conclude that DNR's dismissal of McLaughlin, through the action of involuntary retirement, was wrongful and not based upon just cause. Section
447.208(3)(b), Florida Statutes (1987) states that "[u]pon a finding that just cause did not exist for the suspension or dismissal, the commission may order the reinstatement of the employee, with or without back pay." Subsection (e) states t...
...and other out-of-pocket expenses incurred during the prosecution of an appeal against an agency in which the commission sustains the employee. Accordingly, this action is remanded to PERC for a determination consistent with this opinion pursuant to Section 447.208(3)(b) and (e), Florida Statutes (1987)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1998 WL 618623
...DEP then discharged Nordheim, and Nordheim appealed this discharge to PERC. After a three day hearing, the hearing officer found that the agency had cause to take disciplinary action against Nordheim for negligence, and that, upon application of the mitigation criteria in section 447.208(3)(d), Florida Statutes (1995), [2] Nordheim's discharge should not be reduced....
...its own case of Jackson. This decision makes it unnecessary for us to reach the additional contested issue. Reversed. NOTES [1] The hearing officer found that there was no evidence that Nordheim was negligent because the device was disconnected. [2] Section 447.208(3)(d) states: (3) With respect to hearings relating to demotions, suspensions, or dismissals pursuant to the provisions of this section: ......
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 2498, 1987 Fla. App. LEXIS 10801
...MILLS & WIGGINTON, JJ., concur. NOTES [1] The virtually unlimited discretion of the Commission to reduce dismissals to suspensions, even when just cause existed for disciplinary action, has since been curtailed. Chapter 86-163, Section 84, Laws of Florida, created Section 447.208, Florida Statutes (Supp....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1999 WL 933755
...1984) (permitting PERC to participate as a party in appellate proceedings to review its decisions "upon request or upon the designation of the party seeking review"). II. The Applicable Fee Statute It is undisputed that Gaston's entitlement to attorney fees was premised upon section 447.208(3)(e), Florida Statutes. At the outset, we are asked by PERC and DOR to determine which version of that statute applies. When PERC's final order was entered, and at all relevant times before that date, section 447.208(3)(e) read: Any order of the commission [i.e., PERC] issued pursuant to this subsection may include back pay, if applicable, and an amount, to be determined by the commission and paid by the agency, for reasonable attorney's fees, witness fees, and other out-of-pocket expenses incurred during the prosecution of an appeal against an agency in which the commission sustains the employee. § 447.208(3)(e), Fla....
...over the amount of the attorney's fee. This paragraph applies to future and pending cases. Ch. 99-399, § 54, at 4396, Laws of Fla. Chapter 99-399 became effective on June 30, 1999. Id. § 60, at 4399. PERC and DOR argue that the amended version of section 447.208(3)(e) applies because the legislature has expressly stated that it is to be applied to "pending cases." Gaston responds that chapter 99-399 is unconstitutional because it violates the single-subject rule found in article III, section...
...be paid by an agency when PERC "sustains the employee" in a dispute between the agency and its employee relating to disciplinary action taken against the employee. PERC cannot decide that issue unless the case is pending before it. The amendment to section 447.208(3)(e) did not become effective until June 30, 1999....
...attorneys to represent indigent persons[,]... the trial court has discretion ... to make a fee award ... which encompasses time spent establishing the amount of the fee." Id. at 766. The statutory basis for the award of fees to Gaston's attorneys is section 447.208(3)(e), Florida Statutes (1997)....
...On appeal, PERC argues that its policy to award a fee for time spent litigating the amount of a reasonable fee only when it finds the agency's opposition to the amount of the fee requested to be frivolous or otherwise the result of some improper motivation is a reasonable interpretation of section 447.208(3)(e)....
...The agency's statutory construction is entitled to great weight, and is not to be overturned on appeal unless clearly erroneous." AMISUB v. Department of Health & Rehab. Serv.,
577 So.2d 648, 649 (Fla. 1st DCA 1991) (citation omitted). It is apparent from the language of section
447.208(3)(e) that the legislature intended to vest considerable discretion in PERC....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1990 WL 7533
...me act. As emphasized in our description of the facts, even the hearing officer described this case as a "termination." This jurisdictional issue is significant because PERC has the authority to invoke penalties which are less severe than dismissal. § 447.208(3)(c), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1998 WL 316555
...Accordingly, we REVERSE that portion of PERC's order sustaining the charge of lying and the imposition of the penalty of dismissal based thereon, and REMAND for further proceedings consistent with this opinion. BOOTH and PADOVANO, JJ., concur. NOTES [1] Pursuant to section 447.208, Florida Statutes (1995), PERC is the administrative body charged with hearing appeals arising out of the dismissal of any permanent employee in the state career service system....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2007 Fla. App. LEXIS 11367, 2007 WL 2089266
...Accordingly, PERC's discretion is not implicated. We conclude that relevant statutory history calls PERC's conclusion into doubt. Until 2001, the Legislature limited PERC's discretion in reducing a public employee's dismissal to consideration of four statutory criteria. See §
447.208(3)(d), Fla. Stat. (2000); see also Bamawo v. Dep't of Corrs.,
785 So.2d 610, 611 (Fla. 3d DCA 2001) ("[Section
447.208(3)(d)] allows PERC the discretion to reduce dismissals and suspensions to lesser penalties after consideration of four statutory factors.")....
...Significantly, the Legislature removed all discretion with regard to the degree of punishment, except in cases involving law enforcement or correctional officers, firefighters, and professional health care providers. Finally, the Legislature removed the four criteria found in section 447.208(3)(d). See ch.2001-43, § 38, at 207, Laws of Fla. (amending § 447.208, Fla....
...to alter the law unless the contrary is made clear.") As a result of the 2001 amendments, PERC maintains discretion to reduce penalties imposed upon correctional officers. Further, PERC is no longer restricted to the four criteria once contained in section 447.208(3)(d), Florida Statutes (2000)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1993 WL 513191
...but mitigating the recommended penalty of dismissal to a ten-day suspension. Although we might have reservations regarding the wisdom of the penalty directed by PERC, we are unable to say that it amounts to an abuse of the discretion granted PERC by section 447.208(3), Florida Statutes (1991)....
...Silva's actions lead to the issuance of a fraudulent official identification card. The hearing officer also concluded that dismissal was an authorized penalty and that Silva had not carried her burden of demonstrating entitlement to mitigation under section 447.208(3), Florida Statutes....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1993 WL 128848
...nation for cause which would invoke PERC's exclusive jurisdiction over dismissals."
558 So.2d at 65. The court further noted that the jurisdictional issue is significant, because PERC has authority to invoke less severe penalties than dismissal, see §
447.208(3)(c), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1991 WL 253379
...On April 8, 1988, appellee filed an appeal to the Public Employees Relations Commission contesting her dismissal by HRS. On April 20, the commission stayed the case pending an appeal by appellee of her placement on the HRS abuse registry. See generally, section 447.208(1), Florida Statutes (1989)....
...issal to a suspension. However, the commission entered an order remanding the case to the hearing officer stating that although it accepted the hearing officer's findings of fact, it disagreed with his application of the mitigation criteria found in section 447.208(3)(d)....
...Although that observation is correct, the commission did not reduce the severity of the recommended penalty but rather, in its first opinion remanding the case to the hearing officer, simply disagreed with the hearing officer's application of the mitigating factors in section 447.208(3)(d) and directed the hearing officer to reconsider the case in light of the first and third of those factors. Upon further consideration, it was the hearing officer who in fact reduced the initial recommended penalty of dismissal to suspension. We also find no cause for reversal in the commission's interpretation of the legislative intent by way of section 447.208(3)(d)1., allowing the commission in its discretion to reduce dismissals and suspensions by considering the seriousness of the conduct as it relates to the employee's duties and responsibilities....
...State, Department of Banking and Finance,
582 So.2d 764 (Fla. 1st DCA 1991). Consequently, the cause is affirmed in part and reversed in part with directions that the commission reinstate the hearing officer's supplemental recommended order. ERVIN and SHIVERS, JJ., concur. NOTES [1] Section
447.208(3)(d) provides the following: (d) The commission is limited in its discretionary reduction of dismissals and suspensions to consider only the following circumstances: 1....
...The previous employment record and disciplinary record of the employee. 4. Extraordinary circumstances beyond the employee's control which temporarily diminished the employee's capacity to effectively perform his duties or which substantially contributed to the violation for which punishment is being considered. [2] Section 447.208(3)(e) allows that the commission may award back pay "if applicable." [3] See footnote 1, supra.
CopyPublished | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 741, 1989 Fla. App. LEXIS 1530, 49 Fair Empl. Prac. Cas. (BNA) 1890, 1989 WL 26749
...rida Commission on Human Relations (FCHR). While FCHR may refer such cases to PERC, FCHR had not done so in this case. The hearing officer concluded that mitigation of the dismissal was not possible. However, Chapter 86-163, Laws of Florida, created section 447.208(3)(c), Florida Statutes, and transferred jurisdiction for state career service appeals to PERC. The hearing officer noted a lack of precedent as to whether the statute now authorizes PERC to mitigate a dismissal for inability to perform a particular job. He applied the four mitigation criteria codified in section 447.208(3) and recommended that, if mitigation is ever appropriate for a case such as this, appellant's dismissal be mitigated to an indefinite suspension without pay with the opportunity to accept a demotion or reassignment appointment to an...
...On March 18, 1988 PERC entered a final order, accepting the factual findings of the hearing officer, agreeing with the hearing officer's legal analysis with modification, and affirming the agency's dismissal of appellant. The Commission applied the mitigating criteria set forth in section 447.208(3), Florida Statutes (1987), and concluded that mitigation was not warranted in this case, while not foreclosing the possibility that mitigation of a dismissal for inability to perform job duties may be appropriate under other circumstances....
CopyAgo (Fla. Att'y Gen. 1988).
Published | Florida Attorney General Reports
same and other subjects in general terms). 7 Section
447.208(3)(a), F.S., provides with respect to a hearing
CopyPublished | District Court of Appeal of Florida | 1993 WL 24492
his request for attorney’s fees and costs. Section
447.208(3)(e), Florida Statutes (1991), the controlling
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 1406
administrative appeal he had duly instituted. Section
447.208(3)(e), Florida Statutes (1995), provides: “Any
CopyPublished | Florida 1st District Court of Appeal | 1995 WL 307154
...nd this scrivener's error is hereby corrected. Appellee's motion for rehearing or clarification on the denial of her motion for appellate attorney fees is DENIED. Her motion for appellate attorney fees cited no statutory authority for such an award. Section
447.208(3)(e), Florida Statutes, authorizes PERC to include in its order, inter alia, an amount to be paid by the administrative agency for reasonable attorney's fees incurred during the prosecution of an appeal against an agency in which the commission sustains the employee. This statute does not authorize appellate attorney fees when an appeal of PERC's decision is taken to a District Court of Appeal. To the extent that section
59.46, Florida Statutes, may be read in connection with section
447.208(3)(e) (which does not, strictly speaking, provide for "the payment of attorney's fees to the prevailing party," but only to an employee who prevails against an agency), appellee's motion for appellate attorney fees did not cite section
59.46, and was therefore insufficient....
CopyPublished | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 864, 1988 Fla. App. LEXIS 1313, 1988 WL 28299
...ce, §
893.13(1)(e), Fla. Stat. (1985); see Kuhn v. State,
439 So.2d 291, 293 (Fla. 3d DCA 1983); Wale v. State,
397 So.2d 738, 740 (Fla. 4th DCA 1981); (b) this finding was a sufficient basis for FDHSP to terminate Lavery's employment as a trooper, §
447.208(3)(a), Fla....
...hich constitutes a serious criminal violation of the very laws the addicted officer has sworn to uphold, and find that the penalty of dismissal was entirely authorized in this case, Florida Real Estate Comm'n v. Webb,
367 So.2d 201, 203 (Fla. 1978); §
447.208(3)(d), Fla....
