09-6489 CHRISTINE PESTA, v. DEPARTMENT OF CORRECTIONS

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State: Florida

Court: Florida First District Court

Docket No: 09-6489

Case Date: 04/14/2011

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CHRISTINE PESTA, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee. _____________________________/ Opinion filed April 14, 2011. An appeal from an order of the Public Employees Relations Commission. Matthew O. Ward, Tallahassee and Gloria W. Fletcher, Gainesville, Appellant. Jennifer Parker, General Counsel, and Jill Bennett, Assistant General Counsel, Tallahassee, for Appellee Department of Corrections; Sharon E. Cromar, Staff Attorney, Tallahassee, for Public Employees Relations Commission. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D09-6489

BENTON, C.J. Christine Pesta appeals a decision of the Public Employees Relations Commission (PERC) dismissing her career service appeal on grounds PERC lacked subject matter jurisdiction. Because PERC does have jurisdiction to decide

whether Ms. Pesta's employer, the Department of Corrections (DOC), had cause to terminate her employment, we reverse and remand for further proceedings. Ms. Pesta began as a career service employee with DOC in 1996, and was promoted to Correctional Officer Captain in July of 2008. On May 12, 2009, while she was still on probationary status as captain, DOC issued an "Extraordinary Dismissal Letter" terminating her employment at DOC that day: DOC alleged that she had "engaged in inappropriate and unlawful conduct by participating in the unnecessary use of force" on an inmate by allowing him to be sprayed with chemical agents "even though he was not creating a disturbance at the time." The letter further alleged that Ms. Pesta falsely maintained in an incident report that the chemical agents were applied to quell a disturbance, and provided false testimony about the incident during an interview with the Inspector General's Office. Finally, the letter informed her that, as a career service employee with permanent status, she had the right to appeal DOC's decision to PERC. Ms. Pesta was also charged criminally. While battery and perjury charges were tried, proceedings at PERC were stayed. After her acquittal on both criminal charges, DOC filed with PERC a motion to dismiss for lack of subject matter jurisdiction, arguing that a career service employee may appeal her dismissal to PERC only if she has been in her current position for at least a year. Ms. Pesta countered that, as a factual matter, DOC had no cause to dismiss her and that, even 2

if DOC did not need cause to remove her as a captain (because she was still on probationary status as a captain), she was entitled, as a permanent career service employee, to other employment with the agency. On the purported authority of one of its earlier decisions, Alford v. Department of State, Case No. CS-2009-181 (Fla. PERC Sept. 25, 2009), and section 110.227, Florida Statues (2009), PERC dismissed the appeal on grounds it had no jurisdiction. But see Bourgault v. Dep't of Corr., Case No. CS-2009-148 (Fla. PERC Aug. 10, 2009). "Whether a lower tribunal had subject matter jurisdiction is a question of law which we review de novo." Dep't of Revenue ex rel. Smith v. Selles, 47 So. 3d 916, 918 (Fla. 1st DCA 2010). PERC and other "`[a]dministrative agencies are creatures of statute and have only such powers as statutes confer. State ex rel. Greenb[e]rg v. Florida State Bd. of Dentistry, 297 So. 2d 628, 634 (Fla. 1st DCA 1974).'" Fla. Elections Comm'n v. Davis, 44 So. 3d 1211, 1215 (Fla. 1st DCA 2010) (quoting Fiat Motors of N. Am. v. Calvin, 356 So. 2d 908, 909 (Fla. 1st DCA 1978)). In the present case, subject matter jurisdiction is a question of law that requires construction of more than one statute. PERC "or its designated agent shall hear appeals arising out of any suspension, reduction in pay, demotion, or dismissal of any permanent employee in the State Career Service System in the manner provided in s. 110.227."

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