JAMES C. WENSIL, APPELLANT,
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, APPELLEE
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A career service employee of the Department of Environmental Protection appeals his dismissal by PERC for conduct unbecoming a public employee, based on child abuse charges and violation of a court order. The appellate court affirmed the dismissal, rejecting the employee's argument that a "beyond a reasonable doubt" standard should apply and confirming that the preponderance of the evidence standard was properly applied.
The court affirmed PERC's decision, holding that the preponderance of the evidence standard, not beyond a reasonable doubt, is the correct standard for administrative disciplinary proceedings. PERC properly affirmed the hearing officer's decision when it was supported by competent substantial evidence.
[1] An agency must affirmatively prove the essence of its allegations by a preponderance of the evidence.
[2] An administrative tribunal's decision must be affirmed if supported by competent substantial evidence.
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Join FLexlaw to unlock all legal intelligence“the agency must affirmatively prove the essence of the allegations by a preponderance of the evidence”
Establishes the correct legal standard for administrative disciplinary cases, rejecting the beyond a reasonable doubt standard
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Join FLexlaw to unlock all legal intelligenceJames C. Wensil, a career service employee with the Florida Marine Patrol, was dismissed by the Department of Environmental Protection. The dismissal …
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PER CURIAM.
James C. Wensil, a career service employee, appeals a decision by the Public Employees Relations Commission (PERC) affirming his dismissal by the Department of Environmental Protection from the Florida Marine Patrol. Mr. Wensil was dismissed for “conduct unbecoming a public employee” based upon charges of child abuse (to which Mr. Wensil pleaded nolo contendere and for which he has been placed on the child abuse registry) and for violating a court order to have no contact with his stepchildren. Mr. Wensil asserts in this appeal that PERC erred in affirming his dismissal without evidence “beyond a reasonable doubt” that he did in fact commit child abuse by giving his stepson an excessive beating with a belt. The correct standard, by a preponderance of the evidence, was applied by the hearing officer. See Department of Agriculture v. Edwards, 654 So. 2d 628, 631 (Fla. 1st DCA), review denied mem., 662 So. 2d 931 (Fla.1995)(“the agency must affirmatively prove the essence of the allegations by a preponderance of the evidence”). PERC correctly concluded that it was obligated to affirm the decision of the hearing officer if the findings in the recommended order were supported by any competent substantial evidence. See Brogan v. Carter, 671 So. 2d 822, 823 (Fla. 1st DCA 1996).
The standard of review by the appellate court requires us to affirm if the decision of the administrative tribunal is supported by competent substantial evidence. See Florida Dep’t of Health and Rehabilitative Services v. Career Service Comm’n, 289 So. 2d 412, 415 n. 2 (Fla. 4th DCA 1974). We find the record contains competent substantial evidence to support the dismissal of Mr. Wensil.
Accordingly, the decision of PERC is AFFIRMED.
BARFIELD, C.J., and ERVIN and DAVIS, JJ., concur.
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Citator
Cited By
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Dalem v. Dep't OF Corr. & State of Fla., 720 So. 2d 575 (Fla. 4th DCA 1998)…y of the evidence to support an agency’s discharge of an employee, the yardstick to be applied is preponderance of the evidence); Latham v. Florida Comm’n on Ethics, 694 So. 2d 83, n. 3 (Fla. 5th DCA 1997); Wensil v. Department of Envtl. Protection, 675 So. 2d 1040 (Fla. 1st DCA 1996). We also reject Dalem’s claim that the hearing officer’s decision is not supported by competent substantial evidence because there is no medical evidence in the record indicating that excessive force was used and because the wit…
Authorities Cited
- Fla. Dep't of Health & Rehabilitative Servs. v. Career Serv. Comm'n OF the State of Fla. Dep't OF Admin. & Raya E. Tew, 289 So. 2d 412 (Fla. 4th DCA 1974)
- Dep't of Agric. & Consumer Servs. v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995)
- Brogan v. Carter, 671 So. 2d 822 (Fla. 1st DCA 1996)