#### Robert L. CROWDER, Appellant, v. STATE of Florida ex rel. Roy C. BAKER, Appellee.

No. 72-864.

District Court of Appeal of Florida,' Fourth District.

Nov. 9, 1973.

*34Walter M. Meginniss, Heiman & Crary, Stuart, for appellant.

Raymond E. Ford, Fort Pierce, for ap-pellee.

OWEN, Chief Judge.

In this Quo Warranto proceeding to determine the right to public office the relator was awarded a judgment of ouster against the respondent and the latter appeals.

Roy C. Baker, the duly elected Sheriff of Martin County was suspended by executive order dated May 17, 1972, issued by His Excellency, Rubin O’D Askew, Governor of the State of Florida, under the provisions of Article IV, Section 7(a), 1968 Constitution, F.S.A. Thereafter, Baker filed an Information in Quo Warranto naming Robert L. Crowder, the interim appointee of the office, as respondent. Baker was awarded the judgment of ouster against Crowder because the trial court found that the executive order suspending Baker did not allege sufficient jurisdictional facts upon which to predicate the charges of malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, and commission of a felony.

Appellant’s two points, which we will discuss seriatim, are (1) whether the executive order suspending Baker was deficient in setting forth sufficient facts to meet the necessary jurisdictional criteria for suspension, and (2) whether F.S. Section 951.22, F.S.A. (prohibiting the introduction of alcoholic beverages into a county jail) applies to the sheriff of the county.

The trial judge held, and we agree, that the suspension power under Article IV, Section 7(a), 1968 Constitution is essentially the same as that under Article IV, Section 15, 1885 Constitution, insofar as the jurisdictional requirements are concerned, and thus cases construing this provision of the 1885 Constitution control the present case. Both parties agree that the leading cases in this area are State ex rel. Hardie v. Coleman, 1934, 115 Fla. 119, 155 So. 129, and State ex rel. Hardee v. Allen, 1937, 126 Fla. 878, 172 So. 222.

The executive order of suspension first alleged that Roy C. Baker, as the elected sheriff of Martin County, Florida (an office which he had held continuously since January 6, 1953), was a “county officer” under the constitution and that as such officer he had a continuing duty to assist and cooperate with other state and local law enforcement agencies regarding criminal justice matters of mutual interest and concern. The suspension order then alleged the following:

> “(E) That during his present term of office, the said Roy C. Baker gave express orders to his subordinates or by his conduct sanctioned and encouraged policies of the Office of Sheriff, Martin County, Florida, which without justification or excuse, substantially impeded the necessary exchange of criminal justice information and impeded cooperation between or among the Office of the Sheriff of Martin County and other state and local law enforcement agencies, viz., the Florida Highway Patrol, the Florida Department of Law Enforcement, the Stuart Police Department, and other lo*35cal agencies, to the extent that the effectiveness of the Office of the Sheriff of Martin County as a law enforcement agency and the effectiveness of other agencies was substantially weakened.”

> “(F) That during his present term of office, the said Roy C. Baker has performed official duties, to-wit: perfecting or attempting to perfect arrests, participating in felony investigations and supervising the conduct of inmates in the county jail, while he was intoxicated from voluntary consumption of alcoholic beverages.

> “(G) That on or about January 15, 1970, Roy C. Baker permitted the introduction of an alcoholic beverage, to-wit: whiskey, into and on the premises of the County Jail, Martin County, Florida, and permitted and encouraged Timothy Pittman, then a prisoner incarcerated in jail, to consume said alcoholic beverages on the premises; and Roy C. Baker and Ronnie Summers, Assistant Jailer, who was in charge of the jail and security of prisoners therein, did consume said alcoholic beverages with and in the presence of said prisoner and on the premises of said county jail.

> “(H) That the aforesaid facts constitute malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, or commission of a felony, as said terms are used in Section 7(a), Article IV, Florida Constitution, 1968 Revision.”

 The above-cited authorities hold that the allegation of fact contained in the executive order of suspension need not be as definite and specific as the allegations of an information or an indictment in a criminal prosecution, and the allegations will be adjudged as sufficient if, on the whole, they bear some reasonable relation to the charge made against the officer. We think the factual allegations here are so vague and indefinite as to fail even this less demanding test. Simple justice requires that there be at least enough specificity as to fairly apprise the accused officer of the alleged acts against which he must defend himself. Cf. State ex rel. Hawkins v. McCall, 1947, 158 Fla. 655, 29 So.2d 739.

In reference to the question of whether F.S. Section 951.22, F.S.A.1 applies to a sheriff of a county, we agree with the trial court that by its expressed language the sheriff is excepted from the operation of the statute since it necessarily must be concluded that the sheriff authorizes his own voluntary conduct. Any weakness in the statute in this respect is a matter for legislative consideration.

Affirmed.

WALDEN, J„ concurs.

MAGER, J., dissents with opinion.

1

. “951.22 County jails; contraband articles.—

> (1) It is unlawful except as duly authorized by the sheriff or officer in charge to introduce into or upon the grounds of any county jail or to give to or receive from any inmate of any county jail wherever said inmate is located at the time or to take or to attempt to take or send therefrom any of the following articles which are hereby declared to be contraband for the purposes of this act, to-wit : Any intoxicating beverage; any narcotic or hypnotic or excitive drug; any firearm or any instrumentality customarily used or which is intended to be used as a dangerous weapon; and any instrumentality of any nature that may be or is intended to be used as an aid in effecting or attempting to effect an escape from a county jail.

> “(2) Whoever violates subsection (1) shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment for a term not exceeding two (2) years, or by a fine not exceeding one thousand ($1,000.-00) or by both such fine and imprisonment.”

MAGER, Judge

(dissenting) :

I must respectfully dissent from the opinion of the majority. Although recognizing that an executive order of suspension need not be as specific and as definite as the allegations of a criminal informa*36tion, the majority has nevertheless applied a test of specificity and definiteness to such order.

The judicial inquiry into an executive order of suspension is *limited*to a determination of the existence of “jurisdictional facts, i. e., the matters and things stated in the order of suspension on which the executive grounds his cause of removal, may be considered by the courts to the extent of determining *whether the facts stated have some reasonable relation to a constitutional ground of suspension. . . .”.*State ex rel. Hardee v. Allen, supra. In State ex rel. Hardie v. Coleman, supra, the Supreme Court had earlier observed 155 So. at page 133:

> “ . . . . that if the order names one or more of the grounds embraced in the Constitution *and clothes or supports it with alleged facts sufficient to constitute the grounds or cause of suspension,*it is sufficient. .

> “. . . Being an executive order subject to review by the Senate, if, on the whole, it contains allegations that bear some reasonable relation to the charge made against the officer, it will be adjudged as sufficient. . . . ”

Paragraphs E, F and G of the Governor’s Executive Order, as set forth in the majority opinion, clearly and unmistakably set forth facts which “have some reasonable relation to a constitutional ground of suspension”, i. e., misfeasance, neglect of duty, drunkenness and incompetence. See State ex rel. Hardie v. Coleman, supra.

In my humble opinion the majority has confused “jurisdictional facts”, heretofore denominated in State ex rel. Hardie v. Coleman and State ex rel. Hardee v. Allen, supra, with “specific and definite facts.” The specificity or definiteness as urged by the majority is not required by the holdings in *Coleman*and *Allen.*As these cases have observed, if the executive order “on the whole . . . contains allegations that bear some reasonable relation to the charge made against the officer, it will be adjudged as sufficient”. The executive order in the case sub judice satisfies this requirement.

These observations should not be interpreted as suggesting that a public officer can be suspended and removed without observance of fundamental requirements of due process including notice and a fair hearing. These requirements, however, are matters quite separate and apart from the determination of whether an order of suspension contains sufficient -“jurisdictional facts”. The executive order in the case sub judice contains supporting allegations of fact which put the suspended official on notice of the grounds of suspension and the basis therefor. (Paragraphs E, F and G, supra.)

If some of the factual allegations are not sufficiently specific as to time date and place, the suspended official can seek greater specificity through the machinery of the Senate Select Committee which is authorized to request the Governor “to file a statement of further facts and circumstances supporting the suspension order.” See Suspension and Removal of Public Officers, 23 U. of Fla.L.Rev., (1970-71), 635-671, footnote 12, at p. 638.1 It is my opinion from years of personal experience and contacts with the functioning of the Senate Select Committees that such committees will discharge their duties and responsibilities in a manner consistent with the recognition and preservation of the rights of suspended public officials.2 See, in particular, F.S. Section 112.47, F.S.A. Cf. special concurring opinion of Justice *37Terrell, State v. Sullivan, Fla.1951, 52 So. 2d 422. As stated in 23 U. of Fla.L.Rev., supra, at p. 648:

> “ . . . there can be little serious doubt today that if an officer is removed from office without observance of minimum requirements of. due process, or if any of his other constitutional rights are violated, he will be afforded relief in either federal or Florida courts.”

The majority opinion, which appears to be premised solely upon the lack of specificity and definiteness in the executive order, demonstrates a well-intentioned concern for the proposition that the public official be afforded “at least enough specificity as to fairly apprise (him) of the alleged acts against which he must defend himself”. Although, in my view, the executive order is sufficiently specific, even assuming that it does not meet the test of specificity, it would be presumptuous of this court to assume *in advance*that the Senate Select Committee will not undertake to secure from the Governor “a statement of further facts and circumstances supporting the suspension order”. An order of suspension containing “jurisdictional facts”, as defined, should not be set aside because the allegations are couched in general language where the suspended official has not shown that he has resorted to and been denied “a statement of further facts and circumstances supporting the suspension order”. Much like an information in a criminal proceeding which is subject to a bill of particulars so, too, is the order of suspension subject to a “statement of further facts . . . ”.

The line of demarcation between the enumeration of “jurisdictional facts” sufficient to support an executive order and the vagueness or indefiniteness of allegations may seem gossamer but is nevertheless substantial insofar as it relates to the sufficiency vel non of an executive order. Chief Justice Whitfield pointed out in State ex rel. Hardee v. Allen, supra, “All reasonable intendments will be indulged in to support the sufficiency of the challenged acts of the Governor and the Executive”. The order of suspension in the case sub judice, while not a model of specificity, nonetheless satisfies the requirements in State ex rel. Hardee v. Allen, and State ex rel. Hardie v. Coleman, supra.3

Therefore, I would reverse the peremptory writ of quo warranto and order for judgment of ouster with the following observations appearing in 23 U. of Fla.L. Rev., at pp. 635, 636 and 637:

> *“The executive power of stispension serves a vital public need. It provides an effective remedy, unique among the states, for the chronic ill of democratic government■*— the *entrenchment 'of corruption, neglect of duty, and other evils in public office. By virtue of the executive power of suspension, minimum standards of public administration are established and may be enforced throughout Florida.*

> *!» «K 'k H»

> “ . . . *Although the Governor has exclusive authority to initiate suspensions, the senate has the responsibility to make final dispositions of them. The senate is entrusted with the great duty and responsibility to ensure that the awesome executive power of suspension is used to achieve its constitutionally intended public purposes and to see that no officer is removed for grounds other than those provided by law.”*

1

. This law review article, which is ably written and well documented, contains one of the most comprehensive treatments of the suspension process in Florida.

2

. The Senate Select Committee has in the past when requested and sua sponte sought to provide the suspended officer with the necessary specificity when such was deemed lacking and was not hesitant to reinstate a suspended official if such specificity was not forthcoming from the Governor.

3

. The foregoing observations relate solely to the question of the legal sufficiency of the Governor’s executive order of suspension and should not be interpreted as passing upon the qualifications of the suspended official or any other aspect of the suspension order.