MICHAEL O'BRIEN, APPELLANT,
v.
O. W. CAMPBELL, COUNTY MANAGER, DADE COUNTY, AND DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEES
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Police investigator Michael O'Brien appeals the quashing of a mandamus writ seeking back pay and restoration of employment benefits after his suspension for allegedly failing to report illegal activities. The court affirmed the dismissal, holding that mandamus was not the appropriate remedy and that O'Brien failed to show inadequacy of other available remedies such as certiorari or an ordinary action at law.
The court held that mandamus was not an appropriate remedy because O'Brien failed to allege that he had no other adequate remedy available, and an ordinary action at law appeared adequate for obtaining back pay. The proper remedy for reviewing the county manager's disagreement with the Personnel Board regarding the sufficiency of evidence is certiorari, not mandamus.
“The petition failed to allege that petitioner had no other remedy or that other available remedies were inadequate.”
Establishes the critical deficiency in O'Brien's mandamus petition—failure to show unavailability of alternative remedies.
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Join FLexlaw to unlock all legal intelligenceO'Brien, a police investigator with Metropolitan Dade County, was dismissed on July 29, 1958 on two charges: attempting to recruit department members …
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This is an appeal from a final judgment quashing an alternative writ of mandamus. The petitioner in the circuit court is a police investigator in the Department of Public Safety, Metropolitan Dade County, Florida, who was dismissed on July 29, 1958 by the Metropolitan sheriff on charges that (1) he had attempted to recruit the services of members of his department to engage in political and revoluntionary activities against a foreign government, and (2) he had failed to report such activities to local or federal authorities. Petitioner appealed to the Personnel Advisory Board of Dade County, which, after a hearing, found that “the charges are not sustained according to evidence presented at hearing” and recommended that the employee be reinstated to his former position with all rights and emoluments. The county manager reviewed the evidence and recommendations of the Board, and on March 16, 1959, agreed with the Board that charge (1) had not been sustained, but found that charge (2) had been. The county manager *673directed that the employee be reinstated to duty at his former classification but without pay from July 29, 1958, to March 30, 1959.
On the petition of the employee, the circuit court issued an alternative writ to the county manager and the county, directing payment of the salary accrued during the period of suspension and to “do any and all things and take and any all steps which shall be necessary to effect all the emoluments and rights due the petitioner,” or show cause why a peremptory writ should not issue. On the motion of respondents, the alternative writ was quashed.
We think that the circuit judge was correct. The petition failed to allege that petitioner had no other remedy or that other available remedies were inadequate. See State ex rel. Eldredge v. Evans, Fla.App.1958, 102 So.2d 403. The petitioner alleged that he had anticipated with confidence the accrual to him of the retirement and pension rights, seniority rights and insurance benefits, and any and all other emoluments of said office to which he would be entitled and continue to receive as long as he remained in the service of said county. He said that he has been unjustly and illegally deprived of these rights. What these rights are and by what means he has been deprived of them he does not say, nor does he show that some other remedy is not available if he has been wrongfully deprived of his rights. Assuming that he is entitled to back pay, he makes no showing that an ordinary action at law is not adequate. The writ of mandamus does not issue as a matter of right but in the exercise of sound judicial discretion. See State ex rel. Holland v. City of Eau Gallie, Fla.1953, 65 So.2d 877.
The county manager disagreed with the Personnel Advisory Board as to the sufficiency of the evidence to sustain charge (2), failure to report the unlawful activities of fellow officers. If the court is to review the record of an administrative proceeding, it must be by certiorari. Florida Appellate Rule 4.1, 31 F.S.A.; De Groot v. Sheffield, Fla.1957, 95 So.2d 912. As pointed out in that case, in mandamus, an original proceeding: “The record and evidence are made and offered in that proceeding.” Appellant contends that the findings and recommendations of the Personnel Advisory Board, if supported by substantial evidence, must be upheld by the county manager. However, since an examination of the quality of the evidence involves appellate review, not an original proceeding, the trial court was eminently correct in quashing the alternative writ, and dismissing the cause.
The judgment appealed from is affirmed.
HORTON, C. J., and CARROLL, CHAS., J., concur.
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McKIM v. McNAYR, 168 So. 2d 78 (Fla. 3d DCA 1964)…ginal order of [*80] dismissal of the appellant and dismissed him from County service. Thereafter, certiorari was prosecuted to the circuit court in accordance with Alianell v. Fossey, Fla.App.1959, 114 So. 2d 372; O’Brien v. Campbell, Fla.App.1960, 118 So. 2d 672; Rule 4.1, Florida Appellate Rules, 31 F.S.A., and this resulted in the order here under review wherein the circuit judge quashed and dismissed the writ of certio-rari, reciting the following in said order: * * * * * * “ORDERED AND ADJUDGED that t…
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State v. Panelfab Int'l Corp., 314 So. 2d 196 (Fla. 3d DCA 1975)…ht to the performance of the duty sought to be enforced and that he also show and allege in his petition therefor that no other adequate remedy exists. State ex rel. Eldredge v. Evans, Fla.App.1958, 102 So. 2d 403; O’Brien v. Campbell, Fla.App.1960, 118 So. 2d 672; State ex rel. Lane v. Dade County, Fla.App.1972, 258 So. 2d 347; Moneyhun v. Purdy, Fla.App.1972, 258 So. 2d 505. As respondent correctly alleged in its motion to quash alternative writ of mandamus, it is apparent that relator Blatt has failed to…
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Moneyhun v. Purdy, 258 So. 2d 505 (Fla. 3d DCA 1972)…er brought and dismissed. The circuit court issued a rule nisi. Respondent filed a response and legal memorandum. The court entered a final order discharging the rule and denying the alternative writ, relying upon O’Brien v. Campbell, Fla.App.1960, 118 So. 2d 672 and State ex rel. Eldredge v. Evans, Fla.App.1958, 102 So. 2d 403. Appellant contends that the circuit court erred in dismissing without an evidentiary hearing his petition for mandamus where: (1) the sworn petition alleged that respon [*506] dent…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- de Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957)
- Walton Medders v. State, 102 So. 2d 403 (Fla. 2d DCA 1958)
- State ex rel. Holland et. al. v. City OF EAU Gallie, 65 So. 2d 877 (Fla. 1953)