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District Court of Appeal of Florida,First District.


No. 97-262.

    Decided: September 18, 1997

Ben R. Patterson of Patterson & Traynham, Tallahassee, for appellant. Perri King Dale, Assistant General Counsel, Department of Corrections, Tallahassee, for appellee.

This is an appeal from an order of the Public Employees Relations Commission (PERC), which denied appellant, David Pipping, prevailing-party attorney's fees, authorized pursuant to section 447.208(3)(e), Florida Statutes (1995).1  Pipping contends that the commission erred in denying his application for fees, because he had substantially prevailed in his appeal before the agency by having his dismissal from the employment of the Department of Corrections (DOC) reduced to a 60-day suspension.   We find no abuse of discretion and affirm.

In arguing that such suspension bears no reasonable relation to a dismissal, Pipping relies largely upon Jimenez v. Public Employees Relations Comm'n, 616 So.2d 465 (Fla. 5th DCA 1993), which reversed a PERC order that had denied the award of fees against the employing agency under section 447.208(3)(e), after PERC had reduced the employee's dismissal to a 30-day suspension.   In so concluding, the court noted that while the decision of whether to award fees is in PERC's discretion, it can only exercise its discretion after considering all relevant factors.   The court also certified conflict with this court's decision in Board of Regents v. Coffey, 378 So.2d 52 (Fla. 1st DCA 1979), which had reversed an award of fees in favor of an employee by the Career Service Commission.

We question the Fifth District's conclusion that its decision was in conflict with Coffey.2  The opinion does not disclose the reasons why this court concluded that Coffey's position was not sustained.   In reversing, this court simply observed that because statutes allowing attorney's fees are in derogation of common law, they must be given a strict construction.   Accordingly, PERC must carefully evaluate all the relevant factors connected with a case and determine to what degree the employee prevailed.

We cannot say, given the broad statutory language reposing in PERC the discretion on whether to award fees, that PERC abused its discretion by denying fees.   Pipping challenged his dismissal on the ground that his employer had no just cause to discipline him at all.   Although he did establish that DOC had failed to prove misconduct in regard to one of the three charges made against him, he did not prevail as to the remaining charges, one of which was for allowing numerous items of contraband inside the prison chapel.   In the context of a correctional institution, this was a serious violation.   His dismissal was mitigated to a suspension only because of his hitherto long and generally exemplary employment history.


After more than twenty-six years as a chaplain in the employ of the Department of Corrections, David Pipping faced dismissal for, among other things, permitting one inmate to photograph another wearing a Halloween mask.   While finding misconduct-the camera belonged to the Department, and contraband found in the prison chapel suggested inadequate supervision-the Public Employees Relations Commission (PERC) did not find him guilty of all charges;  and agreed with the chaplain that dismissal was too severe a sanction for what was proven.

In this way, the Reverend Mr. Pipping not only succeeded in recovering his current income-except for the pay he lost during the sixty-day suspension PERC ordered in lieu of dismissal-but also regained health insurance coverage and restored and enhanced valuable pension rights.   He did not accomplish these things unassisted.   Lawyers represented him in prosecuting the administrative appeal that eventuated in his reinstatement.

“[A]ttorney's fees are awarded to wrongfully discharged employees ․ to insure that they are able to secure competent legal counsel because they are often with limited financial resources.”  Jimenez v. Public Employees Relations Commission, 616 So.2d 465, 466 (Fla. 5th DCA 1993).   PERC is authorized to award a reasonable attorney's fee when “the commission sustains the employee,” § 447.208(3)(e), Fla. Stat. (1995), and routinely does so whenever an employee prevails on every point litigated.

This case raises the question whether PERC “sustain[ed] the employee” when it ordered the Department of Corrections to put him back to work after a sixty-day suspension, instead of dismissing him.   At stake is whether public employees will have access to legal counsel when, although not blameless, they stand accused of more than they are guilty, and (perhaps as a result) face sanctions disproportionate to their misconduct.

Today the majority approves PERC's conclusion that, while it “partially sustained” the employee, it properly declined to award attorney's fees because the employee did not “substantially prevail.”   In doing so, the majority refrains from explicitly endorsing the “two-pronged test” PERC purported to apply in concluding that it did not “sustain” the chaplain in reinstating him to his job.

But the majority does put its imprimatur on the arbitrary and capricious results that test has produced in this and other PERC decisions in this area.   Compare the present case with Hughes v. Department of Corrections, 11 FCSR ¶ 068 (1996)(awarding fees where dismissal was reduced to a suspension of thirty workdays).   Compare Battles v. Department of Corrections, 11 FCSR ¶ 107 (1995)(declining to award fees where five-day suspension was reduced to one-day suspension) with Fitzgerald v. Department of Corrections, 11 FCSR ¶ 095 (1996)(awarding fees where five-day suspension was reduced to two-day suspension).   See also Cool v. Department of Corrections, 11 FCSR ¶ 212 (1996)(awarding fees where twenty-workday suspension was reduced to three-day suspension).

Restoring an employee to a position in which he has spent most of his working life affords much more significant relief-does much more to “sustain” the employee-than reducing a suspension by three days, as occurred in Fitzgerald, where PERC awarded fees.   I would reverse and remand with directions to award a reasonable fee for the portion of the chaplain's attorneys' efforts that prevented his wrongful discharge.


1.   This statute allows fees and costs “incurred during the prosecution of an appeal against an agency in which the commission sustains the employee.”

2.   Following Jimenez 's certification of conflict, the supreme court initially agreed to review Jimenez, but later dismissed the petition for review.  Department of Health & Rehab. Servs. v. Jimenez, 626 So.2d 204 (Fla.1993).


ERVIN and DAVIS, JJ., concur. BENTON, J., dissents with opinion.

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