London v. Florida Department of Health and Rehabilitative Services, Division of Family Services Motion to Dismiss and/or Affirm

    October Term 1971 
No. 71-1048

IN THE
SUPREME COURT OF THE UNITED STATES

ISAAC LONDON,
Petitioner,

v.
FLORIDA DEPARTMENT OF HEALTH 
AND REHABILITATIVE SERVICES, 
DIVISION OF FAMILY SERVICES,

Respondent.

MOTION TO DISMISS 
AND/OR AFFIRM

ROBERT L. SHEVIN 
Attorney General

S. STROM MAXWELL 
Assistant Attorney 

General 
The Capitol 
Tallahassee, Florida 
32304
Attorneys for Respondent



X

i n d e x

Page
OPINION BELOW . . .    2

JURISDICTION ...................  2

QUESTION PRESENTED . . . . . . . .  3

STATEMENT. . . . . . .    22

STATEMENT OF THE FACTS . . . . . .  22

REASONS FOR DENYING THE WRIT . . .  54
CONCLUSION......................... 59

CERTIFICATE OF SERVICE ........... 60



XX

CASES CITED

Adler v. Board of Education,
342 U.S. 485 (1952)

Comm, of Internal Revenue v.
Duberstein, 363 U.S. 278 (1960)

Garner v. Board of Public Works 
of City of Los Angeles, 341 
U.S. 716 (1951)

Goldwasser v. Brown, 417 F. 2d 
1169 (1969)

Guzman v. Pichirilo, 369 U.S.
698 (1962)

Jenson v. Olson, 353 F. 2d 285 
(8th Cir. 1965)

Johnson v. Branch, 364 F. 2d 
177 (1966)

Keyishian v. Board of Regents, 
385 U.S. 589

London v. Department of Health 
and Rehabilitative Services, 
313 F .Supp.591 (N.D. Fla.1970)

London v. Department of Health 
and Rehabilitative Services, 
448 F. 2d 665 (5th CCA 1971)

Page

19,44

5

44

47

5

19,45,46

21,28,54
55,56,57

8

2,6,10,
10,25,28

2,6,10,
28



XIX

Page
McAuliffe v. Mayor of City of 

New Bedford, 29 N.E. 517 (1892) 46
N.Y. Times v. Sullivan, 376 

U.S. 563 (1968)
7,8,9,
10,28,48, 
54,58

Rackley v. School District No. 5, 
258 F.Supp. 676 (1966) 28,46

Stromberg v. California, 283 U.S. 
359 (1931) 58

Swaaley v. U.S., 376 F. 2d 857 
(1967) 46

U.S. v. E. I. Du Pont De Nemours 
& Co., 351 U.S. 377 (1956) 5

U.S. v. Nat'l Assoc, of Real 
Estate Boards, 339 U.S. 485 5

U.S. v. U.S. Gypsum Co., 333 
U.S. 364 (1948)

Zenith Radio Corp. v. Hazeltine 
Research, 395 U.S. 100

3,4
55



IN THE
SUPREME COURT OF THE UNITED STATES

October Term 1971 
No. 71-1048

ISAAC LONDON,

Petitioner,
v.

FLORIDA DEPARTMENT OF HEALTH 
AND REHABILITATIVE SERVICES, 
DIVISION OF FAMILY SERVICES,

Respondent.

MOTION TO DISMISS 
AND/OR AFFIRM

Respondent herein, Florida Department 
of Health and Rehabilitative Services, 
Division of Family Services, hereinafter 
referred to as "Respondent" or "Defendant" 
pursuant to Rule 16, Rules of the United 
States Supreme Court, moves that this 
Court dismiss the Petition for Writ of 
Certiorari to the United States Court of 
Appeals for the Fifth Circuit as frivolous 
and without merit and/or affirm the judg­
ment entered below by Federal District 
Court Judge Winston E. Arnow on the 
grounds that the questions presented be­
fore Judge Arnow and those sought to be



2

raised by the Petition for Writ of Certio­
rari have heretofore been well settled by 
the Court below. Judge Arnow's Opinion, 
with his findings and the governing case 
law cited therein, has been made a part of 
Petitioner's Appendix, Pages 8a - 21a, and 
is incorporated herein by reference, see 
London v. Florida Department of Health and 
Rehabilitative Services, cited as 313 F. 
Supp. 591 (1970), and the decisions of the 
United States Court of Appeals for the 
Fifth Circuit cited as 448 F. 2d 665 (1971) 
has also been made a part of Petitioner's 
Appendix, pages la - 6a, and is incorpora­
ted herein by reference, and the Respondent 
should not, therefore, be required to file 
a brief on the merits.

OPINION BELOW

Respondent accepts the "Opinion Belov/" 
statements of Petitioner as contained on 
Page 1 of his Brief.

JURISDICTION
Respondent also accepts "Jurisdiction" 

statements of Petitioner as contained on 
Pages 2 and 3 of his Brief. Additionally, 
however, Respondent obtained a 30-day ex­
tension of time to and including April 17, 
1972, within which to file its responsive 
pleadings thereto. Respondent is filing 
pursuant to Rule 16, Rules of the United 
States Supreme Court, a Motion to Dismiss 
and/or Affirm the judgments below of the 
United States District Court and the United 
States Court of Appeals for the Fifth Cir­
cuit.



3

QUESTION PRESENTED

Petitioner does not present a specific 
question to the Court. He merely alludes to 
the premise that inasmuch as the Appellate 
Court (United States Court of Appeals for 
the Fifth Circuit) did not reverse the 
trial court (United States District Court 
for the Northern District of Florida) be­
cause of Rule 52a» 28 USCA, Federal Rules 
of Civil Procedure, by not substituting 
their judgment for that of the trial court, 
then this Court, Petitioner contends, should 
grant the Writ prayed for by the Petitioner. 
In effect Petitioner, Respondent contends, 
is asking this Court to do what the United 
States Court of Appeals cannot do. Respon­
dent below and the United States Court of 
Appeals for the Fifth Circuit have relied 
upon the seven-year record of many admin­
istrative board and council hearings, 
orders and transcriptions of the complete 
de novo procedural record and judgment of 
the trial court and additionally, in this 
Court, relies upon the latter and the clear 
cut case decisions of this Court pertaining 
to Rule 52a, 28 USCA, Federal Rules of 
Civil Procedure.

The case of U.S. v. U.S. Gypsum Co.
(1948) 333 U.S. 364, and the cases decided 
subsequent to that by this Court are con­
trolling upon appellate courts throughout 
the United States. Rule 52a states in 
essence that "findings of fact in actions 
tried without a jury shall not be set aside 
unless clearly erroneous, and due regard 
shall be given to the opinion of the trial 
court to judge the creditability of the 
witnesses." The Court in the U.S. Gypsum



4

case, supra, stated further that it was 
intended in all actions tried upon the 
facts without a jury to make applicable the 
then prevailing equity practices.

Since judicial review and findings of 
trial courts do not have the statutory and 
constitutional limitations on judicial re­
view or findings by administrative agencies 
or by a jury, the Supreme Court stated that 
this Court may reverse findings of fact by 
a trial court only where clearly erroneous. 
The Supreme Court further laid down the 
rule that a finding is only clearly erron­
eous when the reviewing court on the entire 
evidence is left with the definite and firm 
conviction that a mistake has been com­
mitted. The case before this Court for re­
view falls far short of the test set by 
this Court many years ago. Other cases 
decided by this Court after U.S, v. U.S, 
Gypsum Co. add further weight and credence 
to Respondent's argument and position to 
Dismiss and/or Affirm the judgments entered 
by the Courts below.

In applying the clearly erroneous 
standard to the findings of a district 
court sitting without a jury, appellate 
courts must constantly have in mind that 
their function is not to decide factual 
issues de novo. The authority of an appel­
late court, when reviewing the findings of 
a judge as well as those of a jury,is cir­
cumscribed by the deference it must give 
to decisions of the trier of the fact, who 
is usually in a superior position to ap­
praise and weigh the evidence. The ques­
tion for the appellate court under Rule



5

52a is not whether it would have been made 
the findings the trial court did, but 
whether "on the entire evidence [it] is left 
with a definite and firm conviction that a 
mistake has been committed." Zenith Radio 
Corp. v, Hazeltine Research, 395 U.S. 100.

It is not enough that we might give the 
facts another construction, resolve the 
ambiguities differently and find a more 
sinister cast to actions which the District 
Court apparently deemed innocent. We are 
not given these choices, because our mandate 
is not to set aside findings of facts "un­
less clearly erroneous." U.S. v. National 
Assoc, of Real Estate Boards, 339 U.S. 485.

Where the trial has been by a judge 
without a jury, the judge's findings must 
stand unless "clearly erroneous." Comm, of 
Internal Revenue v. Duberstein, 353 U.S.
278 (1960).

For the United States to succeed in 
this Court now, it must show that erroneous 
legal tests were applied to essential find­
ings of fact or that the findings them­
selves were "clearly erroneous." u . ,q . v .
E. I. Du Pont De Nemours & Co., 351 U.S.
377 (1956).

Under this rule an appellate court can­
not upset a trial court's factual findings 
unless it "is left with a definite and firm 
conviction that a mistake has been commit­
ted." Guzman v. Pichirilo, 369 U.S. 698 
(1962).

The appellate court simply disagreed



6

with the trial court in part of its con­
clusions reached, particularly as to 
Petitioner's transfer but did not or could 
not substitute its judgment for that of the 
trial court and reverse pursuant to Rule 
52a.

The appellate court stated the Judge 
below conducted in essence a trial de novo 
(448 F. 2d 655, at page 657, and 313 F.
Supp. 591, at page 595). Therefore, the 
trial court had the benefit of not only the 
previous record on the merit system appeals 
and their transcriptions but took anew the 
testimony of all of the witnesses on both 
sides and ruled in favor of the defendant, 
Florida Department of Health and Rehabili­
tative Services, Division of Family Services.

As admitted by Petitioner here, the 
appellate court upheld the District Judge 
because "his conclusions and findings in­
volved creditability choices," page 2 of 
Petitioner's Petition for Writ to this 
Court. The trial court after hearing and 
taking testimony as mentioned above from 
all witnesses on both sides plainly and 
simply believed the Defendant and ruled in 
its favor. This cannot and should not be 
grounds for reversal by this Court.

Petitioner also alludes to the fact 
that he was treated as a "trial" employee 
after his transfer. This is clearly 
erroneous, while the rules of the merit 
system council clearly state this can be 
done to a transferred employee, this was 
not done by the Defendant. When Petitioner 
was transferred from Okaloosa County to 
Escambia County, Florida, he was advised he



7

was "on trial status" but was then advised 
by letter less than 5 days later he was not 
on trial status but "subject to the same 
rules and regulations as any other state 
employee." He was never reduced in pay, 
annual leave time or sick leave time. The 
letter also wished him well in his en­
deavors in Pensacola. R.-

Petitioner in his "Question Presented" 
section of his brief also alludes to the 
case of Pickering v. Board of Education,
391 U.S. 563 (1968). The above case while 
not expressly cited by the trial court 
clearly embraced its terms and provisions 
in its opinion and this case and Petition­
er's case are not in conflict. The 
Pickering decision simply does not fore­
close the possibility that under the First 
Amendment reasonable requirements may be 
imposed as a condition to public employ­
ment :

"The problem in any case is to ar­
rive at a balance between the inter­
est of the teacher, as a citizen, 
in commenting upon matters of pub­
lic concern and the interest of 
the state, as an employer, in pro­
moting the efficiency of the pub­
lic services it performs through 
its employees. 391 U.S. at 568

It is worthy of note that the deci­
sion in Pickering does not set a hard 
and fast rule for all cases concerning 
the First Amendment rights of public em­
ployees. Noting the enormous variety of 
factual situations which may arise, the 
Court said:



8

"• . . we do not deem it either
appropriate or feasible to at­
tempt to lay down a general stan­
dard against which all such state­
ments may be judged . . . ." 391 
U.S. at 569.

The factual situation in the present 
case as regards the transfer differs 
sharply from Pickering in that here, as 
contra to Pickering, the Petitioner's 
actions did interfere with his effective­
ness as a public employee.

Pickering was an employee of an Illi­
nois public school system who wrote a 
letter to the local newspaper criticiz­
ing the way in which the Board of Educa­
tion and the Superintendent of Schools 
had handled past proposals to raise new 
revenue for the schools and the administra­
tion and funding of the athletic program. 
Pickering was summarily dismissed on the 
sole basis of this letter and, ultimately, 
his appeal reached the Supreme Court of the 
United States.

The Supreme Court reversed,using the 
test of Keyishian v. Board of Regents, 385 
U.S. 589, which in turn relied upon N.Y. 
Times v. Sullivan, 376 U.S. 254. The 
Pickering case held that in this factual 
situation, i.e., where no evidence had 
been presented at the dismissal hearing 
that his statements had had any effect on 
the community and/or school administration 
and/or his ability to effectively perform 
his job in the classroom, a dismissal would 
have been proper only upon a factually sub­
stantiated finding by the Board that his



9

statements had been knowingly or recklessly 
false. The Court held this especially true 
when the complaints did not come from a 
person or persons Pickering came into daily 
contact with in the performance of his class­
room duties, i.e., the School Board or 
school officials. Nor was any testimony 
brought out that his actions interfered with 
his job, i.e., teaching impressionable 
children in the classroom.

The Pickering Court noted that in such 
a factual situation the state would be 
limited by the standard laid down by N.Y. 
Times v. Sullivan, supra, regarding libel 
of public officials:

"What we do have before us is a 
case in which a teacher has made 
erroneous public statements upon 
issues then currently the subject 
of public attention, which are 
critical of his ultimate employer 
but which are neither shown nor can 
be presumed to have in any way ei­
ther impeded the teacher 1s proper 
performance of his daily duties 
in the classroom or to have inter­
fered with the regular operation 
of the schools generally. In 
these circumstances we conclude 
that the interest of the school 
administration in limiting teach­
ers' opportunities to contribute 
to public debate is not signifi­
cantly greater than its interest 
in limiting a similar contribu­
tion by any member of the general 
public." 391 U.S. at page 573.



10

The factual situation in Pickering 
was summed up by the Court as follows:

"The statements are in no way di­
rected towards any person with 
whom appellant would normally be 
in contact in the course of his 
daily work as a teacher. Thus 
no question of maintaining ei­
ther discipline by immediate su­
periors or harmony among cowork­
ers is presented herein. Appellant's 
employment relationships with the 
Board and, to a somewhat lesser 
extent, with the superintendent 
are not the kind of close work­
ing relationships for which it 
can persuasively be claimed that 
personal loyalty and confidence 
are necessary to their proper 
functioning." 391 U.S. at 570.

In Pickering the statements made were 
directed solely toward the employee's 
superiors and were in noway involved 
with any person with vh om he would nor­
mally be in contact in the course of 
his daily work as a teacher. The actions 
and statements made by Petitioner in the 
present case [London v. Department of 
Health and Rehabilitative Services, 313 
F. Supp. 591 (N.D. Fla. 1970) and 448 F.
2d 665 (5th C.C.A. 1971)] were directed 
toward those people in the community with 
whom he would have to work in order to 
remain effective in his position as a case 
worker for the Department of Public Wel­
fare .



11

Testimony from many witnesses and em 
ployees of the Division of Family Ser­
vices, formerly the Department of Public 
Welfare, went to the effect that Mr. 
London's statements, comments, conduct, 
manners and tone of voice were directed 
toward and affected his relationships 
with public officials not only in the 
community at large, but toward individ­
uals with whom he came in contact on a 
daily basis while performing his employ­
ment duties and with whom it was neces­
sary for him to get along with in order 
to maintain effectiveness in his day-to- 
day employment with the Department of 
Public Welfare. In addition, testimony 
was introduced by Appellee-Respondent 
that Mr. London's handling of his cases 
and clients was inhibited to such a de­
gree that he could no longer carry out 
his duties in the area to which he was 
originally assigned.

For instance, as a welfare worker, a 
criteria to determine eligibility for 
welfare recipients necessitates contact 
almost on a daily basis with the Tax As­
sessor and/or Collector in the county 
courthouse for the purpose of determin­
ing the value of his clients' property. 
In addition, he must get along with and 
work with continuously the Sheriff and/ 
or other law enforcement officials in 
the community as frequently his clients 
and/or members of their families may be 
confined to jail and in need of services

Again, it becomes necessary to come 
in contact with and get along with the 
Clerk of the Circuit Court and the Judge



12

of the Juvenile Court, because many times 
his welfare clients will have child welfare 
problems within the scope of the duties of 
these officials. Additionally, he would 
have to come in contact with and get along 
with the Superintendent of Public Instruc­
tion and the principals of particular 
schools in which children of clients are 
enrolled as problems may arise here.

These, as well as many more public of­
ficials in Okaloosa County, testified that 
not only were they unable to work with Mr. 
Londson, but that had he not been trans­
ferred and his conduct had continued in 
like manner, their working relationships 
with all members of the State Welfare 
Department would have been hampered and/or 
brought to a halt.

For instance, Mr. Rhett Cadenhead,
Tax Assessor for Okaloosa County, testi­
fied that welfare workers used his office 
quite frequently in the performance of 
their duties (R-335). Mr. Cadenhead tes­
tified further that as a direct result 
of remarks made by Mr. London toward 
him,questioning his ability to hold his 
job and his credentials as Tax Assessor, 
he had to order Mr. London to remove 
himself from behind the counter in his 
office. He said that if Mr. London's 
manner, criticisms and remarks had con­
tinued, the entire working relationships 
between the Welfare Department and his 
office would be in jeopardy. (R-336,337, 
338) .

Mr. Cecil Anchors, Sr., the Clerk of 
the Circuit Court in Okaloosa County,



13

testified that Mr. London's conduct to­
ward him as a public official made it 
difficult for the county, Mr. Anchors and 
the Department of Public Welfare to enter 
into a new agreement for a leased area for 
the Department in the form of additional 
space and more rooms, and that certainly 
Mr. London's attitude wasn't conducive.to 
a good relationship between the state and 
county agencies (R-35S). Mr. Anchors 
testified further that he had questioned 
Mr. London's effectiveness in Okaloosa 
County prior to the request for his trans­
fer by the Department (R-363, 364).

County and Juvenile Court Judge Joe 
Livingston stated it was his opinion 
that Mr. London didn't use much tact, 
was argumentative, and seemed to have 
difficulty in getting along with people 
he was dealing with (R-369,37l). Sheriff 
Ray Wilson stated that Mr. London failed 
to have proper relationships with people 
with whom he was coming in contact, i.e., 
welfare recipients and members of their 
families incarcerated in his jail (R-379). 
He testified further that he wanted to 
apprise the people at the Welfare Depart­
ment that there was a problem in the area 
of communication between Mr. London and 
his clients and stated that it was his 
opinion that something should be done 
about this situation (R-390).

Mr. Max Bruner, Jr., Superintendent 
of Public Instruction for Okaloosa County, 
concluded that Mr. London appeared to be 
lacking in courtesy toward others and 
those with whom he was associated and 
working (R-418). Mr. Marcus J. Davis,



14

former principal of Carver Hill High 
School and now vice-principal of Crestview 
High School, himself a Black, testified 
that Mr. London, in his capacity as a wel­
fare worker, continually embarrassed him 
both at the school and elsewhere, as well 
(R-431,432), and that he found Mr. London's 
attitude poor, rude and unbecoming. Mr. 
Davis indeed felt that Mr. London's effect­
iveness in the community as a social worker 
had become impaired, and impaired to such 
a degree that a transfer would be in order 
(R-434). In fact, Mr. Davis stated that 
had Mr. London continued with the Depart­
ment he would not have let him on his 
schoo1 grounds to check attendance of 
AFDC children (R-434).

Mrs. Martha Horne, Personnel Director 
of the Department of Public Welfare, 
testified that in her interview with Mr. 
London in the state office, Mr. London 
stated that he was always right and never 
wrong (F-461). After talking with Mr. 
London over a long period of time, Mrs. 
Horne said she could understand how his 
attitude could be, and probably was, 
repugnant to everyone in the community 
(R-464) and that on this basis and after 
checking with people in the community, 
she advised the District I Welfare Board 
to transfer him (R-465-469).

It is therefore obvious that to per­
form his job effectively in the community, 
it was necessary for Mr. London to get 
along with and work with all of the above- 
named public officials in the community. 
When complaints from public officials were 
made known to the state office and to the



15

Personnel Director of the Department in 
Jacksonville, the complaints were investi­
gated and found to be grounded in fact. 
Thus, Mr. London was transferred in his 
own best interest and in the best interest 
of his clients and the agency, as well.

This case is thus distinguished from 
the cases relied upon by Petitioner for 
here we clearly have evidence presented 
going to the effect that Petitioner's 
conduct, etc., affected his ability to 
effectively carry out his job within 
the community in that valuable and neces­
sary working relationships were hampered 
and/or destroyed.

A second distinction is also worthy 
of note. The considerations that go 
into the formulation of a "special status" 
for those in the teaching profession as 
concerns the expression of their First 
Amendment rights are lacking in the case 
of a welfare worker. Here we are not con­
cerned with the preservation of academic 
freedoms, but deal with different con­
siderations. The report of the Merit 
System Council of Florida, dated August 
27, 1965, concerning Appellant's (Petition­
er herein) transfer, points out:

"A person performing the duties of 
Social Worker I is in constant con­
tact with the families and children 
receiving and desiring welfare as­
sistance, and is also required to 
work directly with the courts, 
social agencies, and other public 
officials within a given county.
The effectiveness of a social



16

worker depends not only on a 
compatible relationship with 
recipients and prospective reci­
pients, but also such effective­
ness depends to a great extent 
on working co-operatively with 
public officials and agencies.

"The evidence presented clearly 
indicates that Mr. London's per­
sonal effectiveness as a social 
worker in Okaloosa County has 
been materially impaired to the 
degree that his ability to carry 
out the primary duties and 
responsibilities of a social 
worker in Okaloosa County has 
been greatly diminished."
(R-39, 40)
In London v. Florida Department of 

Health and Rehabilitative Services, 313 
F. Supp. 591 (1970), the Court said, at 
page 595, as follows:

"The testimony and evidence before 
the Court fails to establish by 
its greater weight, or preponder­
ance, that Plaintiff's transfer 
resulted from racial prejudice.
That there may have been overtones 
of racial prejudice in the com­
plaints against him does not, of 
course, establish on the part of 
those transferring him motivation 
of racial prejudice, and no such 
motivation here appears. It seems 
clear from the record that those of 
the Board, Department and Council 
involved in his transfer were



17

motivated solely and simply by 
consideration of effectiveness and 
concern for the effectiveness and 
efficiency of* the Department's 
operations, and nothing else.

"This Court recognizes the diffi­
culty inherent in attempting to 
prove subjective elements of racial 
prejudice or motivation, but this 
Court finds no basis, in the evi­
dence and testimony before it, that 
the officials involved in the 
transfer were so motivated. To 
the contrary, it seems clear that 
some of them,at least, were con­
cerned that the complaints of 
Plaintiff's effectiveness may 
have been the result of racial pre­
judice on the part of those complain­
ing, and that, because they were 
concerned, they reached, almost 
reluctantly, the conclusion that, 
for the efficiency and effective­
ness of the system, as well as 
his own effectiveness, he must be 
transferred. And the record does 
establish that his actions engend­
ered, properly or improperly, the 
complaints against him.

"The Court finds and concludes 
that on the record before it, 
Plaintiff has not carried the 
burden of proving the Board, in 
transferring Plaintiff was moti­
vated by racial prejudice, and 
that such transfer was in viola­
tion of his civil rights. In 
fact, and as evidence to the



18

contrary, the record indicates a 
Negro case worker was by the Board 
hired to replace Plaintiff when he 
was transferred.

'bet this decision be not misunder­
stood. There is distinct impression 
from the evidence, that both the 
county officials making complaints 
and Plaintiff may have borne their 
race like chips upon their shoulders 
Such, if true, is less understand­
able in public officials elected to 
serve and represent all of the 
people of their county than it is 
in a public employee the first of 
his race to be employed in his 
capacity in his county. But it is 
to be condoned in neither. Because 
of this Court's holding the Board, 
Council and their employees acted 
without regard for race, this 
Court need not, and does not, give 
that facet of this case further 
consideration.
"Plaintiff also charges transfer in 
violation of his First Amendment 
rights of freedom of speech, assem­
bly and association. It is un­
contradicted the complaints concern­
ing Plaintiff arose both because 
of his manner and his speech while 
engaged in activities unrelated 
to his work. This Court finds 
and holds that, even though Plain­
tiff's transfer resulted, in large 
part, from complaints respecting 
such, his transfer did not violate 
his First Amendment rights. Jenson



19

v. Olson, 353 F. 2d 825 (8 Cir. 1965), 
held that 'The First Amendment 
guarantees free speech and assembly, 
but it does not guarantee Govern­
ment employ. * * * There is no 
basic right to Government employ, 
any more than there is to employ­
ment by any other particular em­
ployer. ' Accord, Adler v. Board 
of Education of The City of New 
York, 342 U.S. 485 (1952). Plain­
tiff, as an employee, had the duty 
to comply with the reasonable re­
quirements and regulations estab­
lished by the Department. One of 
these requirements was that em­
ployees not engage in community 
controversies that might disrupt 
the effective performance of their 
duty. Such requirement is reason­
able. Here, from the record, the 
Board in good faith believed that 
London's conduct had adversely 
affected his effectiveness, and 
impaired the work of the Board.
Again, as stated in Jenson v.
Olson, supra, "When his speech 
is disruptive of the proper func­
tioning of the public's business 
the privilege of governmental 
employment may be withdrawn with­
out it being said that he was 
denied his freedom of speech.1

"The record here presents a 
picture of public officials con­
cerned about activities of one 
of their employees and complaints 
against him and in good faith 
concluding, for his own efficiency



20

and that of the Department, he 
must be transferred. That they, 
or some of them, were concerned 
about the possibility4- of 
racial overtones in the com­
plaints against him bolsters 
rather than detracts from the 
conclusion of good faith by 
them.

"Presented also is the picture 
of a public employee who pur­
sues, as he has the right to 
pursue, his constitutional 
rights of freedom of speech, 
assembly, and association; but 
does so without regard to its 
effect on his public employ­
ment. He has no right of public 
employment; where, as here, his 
exercise of his rights reduces 
and impairs his effectiveness 
and that of his public employer, 
he is subject to good faith 
transfer or dismissal.

"Here, neither the Board nor 
the Council, on the appeal, dis­
missed the Plaintiff from em­
ployment . Instead, they

"i-That possibility was present 
in connection with his Okaloosa 
employment; on the record, com­
plaints regarding his work in 
Escambia County resulted in no 
wise from racial prejudice.



21

transferred him, believing that 
he might be able to work effectively 
and efficiently in another county. 
There is simply no basis here for 
holding this transfer to be in 
violation of his First Amendment 
rights.
"Plaintiff also contends the trans­
fer by the Board and the Council 
was arbitrary, capricious and un­
reasonable. On this aspect of 
the case, a court may not sub­
stitute its judgment for that of 
the Board, or the Council. It 
is not the Court's function to 
review the wisdom or good judg­
ment of these state officials in 
the exercise of their discretion 
in matters of employee transfer 
or removal. Johnson v. Branch,
364 F. 2d 177 (4 Cir. 1966). On 
the record before the Court, it 
is concluded, and the Court finds, 
the action of these state of­
ficials in accomplishing Plaintiff's 
transfer was based on substantial 
and sufficient evidence, and may 
not be held to be arbitrary, 
capricious or unreasonable.

"Moreover, even assuming, arguendo, 
his transfer was in violation of 
his First and Fourteenth Amend­
ment rights, it would not follow 
he could now obtain the relief he 
seeks. He did not have to accept 
the transfer? he could then have 
refused it, and brought court ac­
tion concerning it. Instead, he



22

chose, finally, to accept the 
transfer and to undertake the per­
formance of his duties as case 
worker in Escambia County. Having 
done so, he was required to per­
form properly his employment in 
Escambia County. If he was 
properly dismissed from that em­
ployment because of inefficiency 
or other valid reasons, he may 
not now demand or be given re­
instatement and back pay on any 
charge that his initial transfer 
violated any constitutional 
rights he may have had. . . . ."

STATEMENT

Respondent accepts the "Statement" 
remarks as set out by Petitioner on Pages 
3 and 4 of his Brief.

STATEMENT OF FACTS
Issac L. London was employed by the 

State Department of Public Welfare (now 
known as the Division of Family Services 
pursuant to the Governmental Reorganiza­
tion Act of 1969) on a permanent basis.
On or about June 16, 1965, he was asked 
by the Director of Personnel of the De­
partment of Public Welfare to transfer 
from Okaloosa to Escambia County. The 
transfer was based upon the finding made 
by the District I Welfare Board that his 
"continued employment in Okaloosa County 
may inhibit working relationships with 
some of the officials and others who 
have complained" to the Welfare Board.



23

Pursuant to the Order of Transfer, Mr. 
London was given a full administrative 
hearing before his immediate superiors, 
i.e., the District I Welfare Board of the 
Department of Public Welfare. The trans­
fer was sustained by a vote of 16 to 2.
He then was given another full administra­
tive hearing before the Director of Person­
nel of the Department of Public Welfare in 
Jacksonville who concurred with the trans­
fer request.

Mr. London then appealed the transfer 
to the Merit System Council and was given 
on or about August 13, 1965, a full admin­
istrative hearing which was, in effect, a 
trial de novo. On August 27, 1965, the 
Order of the Merit System Council affirmed 
the transfer order of the Department of 
Public Welfare and sustained his transfer 
from Crestview, Okaloosa County, to 
Pensacola, Escambia County, Florida.

On September 9, 1965, Mr. London went 
to work in Pensacola in the performance 
of his duties. He received a letter four 
days after his transfer to Pensacola 
stating that he was not in a trial status, 
but that he was considered a full-time 
permanent employee and was subject to the 
same rules and regulations as any other 
full-time employee.

Approximately two months after Mr. 
London went to work in Pensacola, he was 
placed on trial status because of his in­
efficiency, inability or unwillingness to 
perform the duties of his position in 
a satisfactory manner, tardiness and ex­
cessive use of sick leave. He was again



24

put on notice as to the conditions which 
were required of him with respect to the 
above and was given evaluations, which 
were signed by him, on a monthly basis 
until March 3, 1966.

On March 4, 1966, Isaac London was 
dismissed from the service of the Depart­
ment of Public Welfare by Colonel W. R. 
Richardson, District I Welfare Board 
Chairman, because he did, with knowledge 
of the aforesaid conditions, continue to 
be inefficient and to excessively use 
his sick leave.

Mr. London then appealed the dismiss­
al to the Merit System Council and again 
was given a trial de novo on the dismiss­
al charges. The entire transcript of the 
hearing before the Merit System Council 
on the dismissal is before this Court.
On June 24, 1966, the Merit System Council 
issued its opinion and/or order sustain­
ing the dismissal charges placed against 
Mr. London.

Mr. London's next appeal was to the 
State Personnel Board, and he was given 
another hearing. (The Personnel Board 
consisted at that time of all the Cabinet 
Members in the State of Florida.)

He then initiated a suit in the Fed­
eral Court in and for the Northern District 
of Florida on or about December 14, 1966. 
The case was ultimately heard by the 
Honorable Winston E. Arnow on February 3, 4 
and 5, 1970, in Pensacola, Florida. Judge 
Arnow had before him the entire record of



25

all the proceedings below, except the 
transcript of the hearing before the Merit 
System Council on the Order of Transfer 
which was destroyed by fire. All motions, 
orders, testimony, etc., concerning all of 
Mr. London's hearings were before Judge 
Arnow for his consideration, and the same 
are now before this Court. In addition, 
at the February 3, 4, 5, 1970 hearing,
Judge Arnow conducted what was in effect 
a trial de novo on both the transfer and 
dismissal charges. In his Order of May 12, 
1970, Judge Arnow entered his memorandum 
decision in favor of Defendant. See 
London v. Department of Health & Rehabili- 
tative Services, 313 F . Supp. 591 (N.D. Fla. 
1970).

Respondent would like to point out that 
in addition to the above mechanics of Mr. 
London's administrative hearings and court 
appeals on the transfer and dismissal 
charges, at both hearings before the Merit 
System Council (on the transfer in 1965, 
and the dismissal in 1966) scores of 
witnesses testified on behalf of the 
Respondent to substantiate the charges 
against Mr. London.

The Order of the Merit System Council 
dated August 27, 1965,as to the transfer, 
recites with specificity the fact that 
Mr. Rhett Cadenhead, Tax Assessor of 
Okaloosa County; Mr. Max Bruner, Jr., 
Superintendent of Education for Okaloosa 
County; Mr. Marcus Davis, Principal of 
the all-Negro high school; Mrs. Gwendola 
Jones, representative of the Department of 
Public Welfare; Mr. Ray Wilson, Sheriff 
of Okaloosa County; Mrs. Martha Horne,



26

Personnel Director of the Department of 
Public Welfare? and others, testified that 
Mr. London's manners, habits, attitude, 
voice, and his treatment of his clients 
and public officials had affected his per­
formance level and ability to perform his 
job to such an extent that indeed a trans­
fer would be in order for the benefit of 
both the Department of Public Welfare and 
Mr. London himself.

As to the dismissal, the Merit System 
Council’s Order of June 24, 1966, indi­
cates that Mrs. Martha Horne, Mrs. Hilda 
Pennington (Mr. London's immediate super­
visor and a twenty-five year employee of 
the Department), and other coworkers in 
Mr. London's unit in Pensacola, such as 
Mrs. Anna Reardon (Director of District 
I) and Mrs. Margaret Jacks (Assistant 
Director of Adult Services) all testified 
that Mr. London's ineffectiveness, inef­
ficiency and lack of performance, tardi­
ness, excessive use of sick leave, and 
his inability to serve his clients neces­
sitated and thus directed his dismissal.

It was brought out, by way of direct 
testimony, that in Pensacola Mr. London 
was evaluated on a monthly basis by Mrs. 
Pennington and he was called in after each 
evaluation to discuss the results. At 
each session his shortcomings were pointed 
out to him and recommendations were made 
as to how he could alleviate the same in 
the future to avoid being placed on trial 
or probationary status. He was advised 
that if he did not right himself, he 
would ultimately, be dismissed for the 
above charges.



27

Both Orders of the Merit System Coun­
cil concerning the transfer and the dis­
missal and the Order of the trial court 
dated May 12,' 1970, carefully considered 
all the points raised by the Appellant- 
Petitioner (i.e,, his purported First and 
Fourteenth Amendment violations as to his 
civil rights, and his purported violations 
of the due process clause of the Fourteenth 
Amendment) and found singularly and totally 
all charges of the Appellant-Petitioner to 
be unfounded and that the transfer and sub­
sequent dismissal were indeed justified. 
Judge Arnow's memorandum decision was 
written in favor of Respondent, denying 
Petitioner any and all relief.



28

The present case must be judged sole­
ly on the factual situation as it actual­
ly exists, not as Petitioner would like 
it to be. We are not dealing with a 
situation like that found in Pickering, 
Johnson, Rackley, supra, where the re­
spective courts found no basis in fact 
for charges that certain conduct on the 
part of certain individuals had been of 
such a nature as to interfere with the 
proper performance of their duties and/ 
or internal administration of a govern­
ment program. It is therefore clear 
that the libel standard announced in 
Pickerinq would not apply in the in­
stant case.

It is also clear that we are not 
dealing with a case involving possible 
infringement on the academic freedoms 
which courts have rightly chosen to 
guard with the most stringent of 
standards. We are now dealing with 
a different type of public employee 
and with different considerations.

Petitioner falls within the cases cited 
by Respondent later in this brief dealing 
with the right of a state and/or federal 
government agency to transfer and/or dis­
miss a public employee. In addition, 
this case (London v. Department of Health 
and Rehabilitative Services) presents a 
clear instance, sans social or racial



29

prejudice, where an employee was trans­
ferred because he could no longer perform 
his employment in his original area; and 
when his transfer was put into effect, 
six months later he was dismissed for not 
performing his job. No case was present­
ed by Petitioner to the contrary and any 
and all inuendos of social and/or racial 
prejudice were clearly negated by Appel­
lee at the de novo hearings of the Merit 
System Council and at the trial de novo 
hearing in the lower court.

An examination of the factual situa­
tion underlying Mr. London's transfer re­
veals that his transfer was both reason­
able and made in good faith. Mr. London 
was advised by letter dated June 16, 1965 
that he was to be transferred from Oka­
loosa to Escambia County. The Order of 
the Merit System Council dated August 27, 
1965 reveals that this letter indicated 
that the transfer was based upon a find­
ing by the District I Welfare Board that 
Mr. London1s "continued employment in 
Okaloosa County may inhibit working rela­
tionships with some of the officials and 
others who have complained" to the Welfare 
Board (R-36).

Mr. London appealed this transfer and 
his appeal was heard in de novo form by 
the Merit System Council which sustained 
the transfer and entered an Order dated 
August 27, 1965 stating the grounds for 
the transfer:

"The evidence presented clearly in­
dicates that Mr. London 1s personal



30

effectiveness as a Social Worker in 
Okaloosa County has been materially 
impaired to the degree that his 
ability to carry out the primary 
duties and responsibilities of a 
Social Worker in Okaloosa County 
has been greatly diminished."
(R-40)

The Merit System Council dealt with 
Mr. London's charge of racial motivation 
on the part of the District Welfare Board 
and dismissed this contention:

"No evidence was introduced by Mr. 
London to show that the transfer 
by the District Board and Depart- 
ment was motivated by any racial 
prejudice, on the contrary, the 
testimony by the Department and 
witnesses affirmatively indicates 
the absence of any such motiva­
tion." (R-40)

At the trial in the District Court, 
which Judge Arnow noted was essentially 
de novo in form (R-146), testimony was 
taken which bore out the findings of the 
Merit System Council.

Mr. Rhett Cadenhead, Tax Assessor for 
Okaloosa County, testified that Mr. 
London's conduct and attitude were bad 
prior to 1964 and 1965 (R-353) and that 
he had received, on quite a few occasions 
during this period, derogatory remarks 
from Mr. London concerning his method of 
tax assessment in Okaloosa County (R-340). 
Mr. Cadenhead stated that in late 1964 or



31

early 1965, as a direct result of these 
remarks and in particular a specific re­
mark made to him by Mr. London question­
ing his capacity to hold his job and his 
credentials as Tax Assessor, he was forced 
to order Mr. London to remove himself 
from behind the counter in his office 
(R-336).

Mr. Cecil L. Anchors, Clerk of the 
Circuit Court of Okaloosa County, testi­
fied that he had some three or four meet­
ings with Mr. London in his office (R- 
357) and that on each occasion Mr. London 
kept his hat on and maintained an attitude 
that was not only uncooperative, but was 
antagonistic and demanding and, in fact, 
his conversation with Mr, Anchors was not 
in the area of discussion but was in the 
nature of a demand to Mr. Anchors that a 
load of clay be delivered to a particular 
school at a particular time (R-356,357). 
Mr. London’s attitude in subsequent visits 
regarding the clay, according to Mr. 
Anchors, was arrogant, beligerent and un­
becoming (R-356,357).

County and Juvenile Court Judge Joe 
Livingston testified that he recalled 
seeing Mr. London on several occasions, 
both in has former capacity as Juvenile 
Court Counselor and in his present capac­
ity as Judge, and was able to form an 
opinion as to whether Mr. London could 
perform his work and as to his personal­
ity (R-368,369,370). He stated that it 
was his opinion that Mr. London did not 
use much tact and seemed to have diffi­
culty in getting along with the people



32

with whom he was dealing (R-369). He 
further stated that he could easily see 
that Mr. London was argumentative with 
people (R-371) and that this argumenta­
tive attitude had gone on for a year 
prior to 1965 and maybe longer (R-37 3) .

The Sheriff of Okaloosa County, Ray 
Wilson, stated that Mr. London seemed to 
have a "chip on his shoulder" (R-378), 
had a beligerent attitude, and seemed to 
fail in some way to suitably communicate 
with people with whom he was dealing.
He further stated that Mr. London failed 
to have proper relationships with people 
with whom he was coining in contact (wel­
fare recipients and members of their fam­
ilies incarcerated in jail) (R-379) . The 
Sheriff, under cross-examination, also 
stated that he had talked with people 
(welfare clients of Mr. London) who 
voiced many complaints against Mr. London 
and he (Sheriff Wilson) had passed these 
complaints along to the "welfare people" 
(R-386,387) . As chief law enforcement 
officer of Okaloosa County, Sheriff Wil­
son had been confronted by some people 
concerning Mr. London and matters of a 
criminal nature as well (R-397) .

Mr. Max Bruner, Jr., Superintendent of 
Public Instruction for Okaloosa County, 
testified that on two occasions he was 
confronted by Mr. London at PTA meetings 
in the county (R-401,403) and that Mr. 
London's attitude of harassment toward 
public officials was the same toward Mr. 
Marcus Davis, Principal of the then Car­
ver Hill High School, and toward Mr.



33

Rhett Cadenhead, the Tax Assessor (R-405). 
Mr, Bruner stated that at the PTA meet­
ings Mr, London fired barrage after bar­
rage of insulting and harassing questions 
toward him in an attempt to embarrass him 
publicly (R-407), although at the Escambia 
Farms PTA meeting (the first confronta­
tion) Mr, Bruner had not yet assumed of­
fice , but was only the nominee for the 
same (R-401). Mr. Bruner testified that 
on both occasions he just gave up and sat 
down as he could not answer Mr. London's 
flurry of questions. He stated that the 
questions asked were not to seek informa­
tion, but merely to embarrass him, and 
they were not asked in the right place or 
in a. proper tone of voice (R-409) . Mr, 
Bruner concluded with testimony that Mr. 
London appeared lacking in courtesy to­
ward others and toward those with whom he 
was associated and working (R-418).

Mr. Marcus J. Davis, former principal 
of Carver Hill High School and now vice­
principal of Crestview High School, and 
a member of the Negro race, testified 
that he had known Mr. London a long time 
and came into contact with him on many oc­
casions on school and nonschool business 
(R-427). Mr. Davis stated that he was at 
the PTA meeting referred to in the testi­
mony of Max Bruner (R-429) and that he 
was indeed embarrassed for Mr. Bruner 
and, in fact, wrote him a letter of apol­
ogy on his own and at no one's behest 
(R-433). He testified that Mr. London 
began to embarrass him as early as the 
late 1950 ' s and early 1960's, and on one 
occasion Mr. London continued to embarrass



34

him concerning the problem of double ses­
sions in a couple of schools in the coun­
ty even though Mr. Davis had the problem 
solved before Mr. London got into it (R- 
429, 430).

Mr. Davis testified further that Mr. 
London, in his capacity as a welfare 
worker, continued to embarrass him at the 
school and outside of the same (R-431,
432) and that he found Mr. London's atti­
tude poor, rude and unbecoming. In fact, 
Mr. Davis stated that had Mr. London con­
tinued with the Department he would not 
have let him on his school grounds to 
check the attendance records of AFDC 
children (R-434). He also stated that he 
saw Mr. London disrupt classes at his 
school by going directly to the teachers 
for attendance figures when he knew that 
Mr. Davis had these records in his office 
(R-439) .

Mrs. Martha Horne, Personnel Director 
of the Department, testified concerning 
Mr. London's signing a statement in 1960 
that he would engage in no further polit­
ical or controversial activities, stating 
this was no special policy toward anyone, 
but that the Department had a policy in 
general for social workers not to inter­
fere in public controversies that might 
endanger good working relationships with 
clients (R-451,452). Mrs. Horne testi­
fied further that indeed in 1965 complaints 
did reach her from the Okaloosa County 
local office (R-456). In her interview



35

with Mr. London in the state office, Mrs. 
Horne testified that he stated to her 
that he was always right and never wrong 
(R-461), and that after talking with him 
over a long period of time she could un­
derstand how his attitude could be, and 
probably was, repugnant to everyone in 
the community (R-463,464). On that basis, 
and after checking with people in the 
community, Mrs. Horne advised the District 
I Welfare Board to transfer Mr. London 
(R-455). She also stated that Mr. London's 
attitude appeared to be overbearing and 
rude toward clients who, in turn, related 
their problems to the public officials, 
and it was best in her mind to transfer 
him (R-467).

Respondent points out that the District 
Court dealt with the factual situation in 
great depth and, in fact, according to 
Judge Arnow, had taken an essentially de 
novo form (R-146). The attached opinion 
of the lower court clearly indicates a 
thorough examination of the issues and 
evidence and a correct resolution in fa­
vor of Appellee.

As concerns Mr. London's First Amend­
ment claims in regard to his transfer, 
the Court stated:

"Plaintiff, as an employee, had the 
duty to comply with the reasonable 
requirements and regulations estab­
lished by the Department. One of 
these requirements was that employ­
ees not engage in community contro­
versies that might disrupt the



effective performance of their 
duty. Such requirement is reason­
able. Here, from the record, the 
Board in good faith believed that 
London's conduct had adversely af­
fected his effectiveness and im­
paired the work of the Board.
Again, as stated in Jenson v.
Olson, supra, 'When his speech is 
disruptive of the proper function­
ing of the public's business the 
privilege of governmental employ­
ment may be withdrawn without it 
being said that he was denied his 
freedom of speech.’" 313 F.Supp. 
at 591, 596

Noting that the requirements in ques­
tion were reasonable, the Court concluded 
that those officials concerned with peti­
tioner's.. transfer acted in good faith 
and for the efficiency of both Petitioner 
and the Department:

"Here, neither the Board nor the 
Council, on the appeal, dismissed 
the Plaintiff from employment.
Instead, they transferred him, be­
lieving that he might be able to 
work effectively and efficiently 
in another county. There is simply 
no basis here for holding this 
transfer to be in violation of his 
First Amendment rights." 313 F.
Supp. at 596

The position of Petitioner was charac­
terized as follows:



37

"Presented also is the picture of a 
public employee who pursues, as he 
has a right to pursue, his constitu­
tional rights of freedom of speech, 
assembly, and association; but does 
so without regard to its effect on 
his public employment. He has no 
right of public employment; where, 
as here, his exercise of his rights 
reduces and impairs his effective­
ness and that of his public employ­
er, he is subject to good faith 
transfer or dismissal." 313 F.
Supp. at 596

The Court below also dealt with charges 
of racial prejudice and found these 
charges to be unsubstantiated:

"This Court finds and concludes 
that on the record before it, Plain­
tiff has not carried the burden of 
proving the Board, in transferring 
Plaintiff was motivated by racial 
prejudice, and that such transfer 
was in violation of his civil 
rights. In fact, and as evidence 
to the contrary, the record indi­
cates a Negro case worker was by 
the Board hired to replace•Plain­
tiff when he was transferred."

"The record here presents a pic­
ture of public officials concern­
ed about activities of one of 
their employees and complaints 
against him and in good faith 
concluding, for his own effici­
ency and that of the Department,



38

he must be transferred. That they, 
or some of them, were concerned 
about the possibility of racial 
overtones in the complaints against 
him bolsters rather than detracts 
from the conclusion of good faith 
by them." 313 F.Supp. at 595, 596

It is therefore apparent that the 
transfer was founded upon a genuine con­
cern for the future effective operations 
of the welfare program in Okaloosa Coun­
ty.

The factual situation surrounding Pet 
tioner's dismissal is clear-cut and un­
controverted by the record. Petitioner 
was dismissed by the District I Welfare 
Board for "inefficiency, inability or un 
willingness to perform the duties of his 
position in a satisfactory manner, tardi 
ness, and excessive use of sick leave" 
(R-33) .

This dismissal was appealed by Mr. 
London and the appeal taken before the 
Merit System Council in de novo form.
The Merit System Council considered all 
evidence presented and made the follow­
ing findings of fact:

"That Isaac L. London, holding a 
position in the Welfare Worker 
class, inefficiently performed the 
duties of his position in Escambia 
County. His records were material­
ly deficient with respect to record­
ing his activities and making nota­
tions as to his recommendations for



39

client services. . . . That said
Isaac L. London excessively used 
sick leave during the period of 
his tenurd in Escambia County to 
the detriment of the Department 
of Public Welfare.

"That said Isaac L. London was 
tardy to the extent that it worked 
a detriment to the Department of 
Public Welfare.

"That said Isaac L. London was 
properly put on notice as to the 
conditions which were required of 
him with respect to his ineffici­
ency, excessive use of sick leave, 
and tardiness.

"That he did, with knowledge of 
the aforesaid conditions, continue 
to be inefficient, and to excess­
ively use his sick leave." (R-34)

The entire transcript of the dismiss­
al is contained in the exhibit volumes 
on appeal for the Court to consider.
The dismissal hearing contained no irreg­
ularities and every consideration was 
given by the Merit System Council to the 
evidence .and testimony presented at the 
hearing.

The Merit System Council sustained 
the decision of the Department of Public 
Welfare and the District I Welfare Board 
in dismissing Appellant and found in its 
opinion dated June 24, 1966:



40

"No tangible or intangible evidence 
was introduced by Mr. London to show 
that his dismissal by the District 
One Welfare Board and the Department 
was motivated by any prejudice, bias 
or partiality. On the contrary, the 
testimony by the Department affirma­
tively indicates the absence of any 
such motivation.

"The evidence presented clearly indi­
cates that Mr. London failed to per­
form his duties in a satisfactory 
manner and that his inefficiency, 
excessive absenteeism, and tardiness 
materially impaired the operation of 
the unit to which he was assigned." 
(R-35)

Testimony taken in the trial court con­
cerning the dismissal supports the find­
ings and Order of the Merit System Coun­
cil. Admitted into evidence were the 
various evaluation documents written by 
Mrs. Hilda Pennington, Mr. London's su­
pervisor in Escambia County, during the 
six months Mr. London was there employed. 
These documents all show and demonstrate 
that he was inefficient, ineffective, un­
willing and unable to perform his job, 
and indeed used his sick and annual leave 
to such an extent that he could no longer 
perform his job (R-256).

Mrs. Pennington stated that she had 
many conferences with Mr. London to try 
to show him how he was deficient and how 
he could overcome these deficiencies 
(R-258,259,260), but that Mr. London had



4-1

not profited by his mistakes'and evalua­
tions and, in fact, rejected any and all 
help she offered to give him (R-326).
She concluded' that she had no success 
whatsoever with him and that his perfor­
mance did not get any better during the 
six months he was in Escambia County.

Mrs. Pennington testified that Mr. 
London had been with the Department long­
er than any of the other eight workers in 
her unit combined, and yet his performance 
did not even approach that of a new work­
er (R-262). She also testified to some 
24 or 25 specific case records Mr. London 
had handled during his six months in 
Escambia County and that she found grave 
or serious errors in all of them. Mrs. 
Pennington gave many other concrete ex­
amples of Mr. London's case work defici­
encies (R-262,290-292,296,297) and noted 
that while only 24 or 25 case work dis­
crepancies were read into the record and 
admitted into evidence (R-328), she had 
reviewed, in fact, some 75 or 80 of his 
cases and found mistakes in all of them 
(R-329) .

Mrs. Pennington testified that in read­
ing Mr. London's case records she had 
serious questions as to whether or not 
the interviews Mr. London claimed he had 
made in these cases were actually true 
and accurate as they were not shown in 
the case records, but only on the day 
sheets, leading her to the conclusion 
that he was "loading his day sheets"
(R-286,287,289) . She also stated that 
she personally interviewed many of Mr.



42

London's clients and they said they had 
not seen Mr. London on the dates he 
claimed to have seen them as indicated on 
his day sheets (R-327).

Mrs. Margaret H. Jacks, employed some 
27 consecutive years by the Department of 
Public Welfare (who is presently Assis-. 
tant Chief of the Bureau of Adult Ser­
vices and who was formerly Assistant Di­
rector of the Division of Public Assis­
tance) testified that she read some 22 of 
Isaac London's case records and found 
serious and grievous errors in all of them 
(R-479,483,488). Mrs. Jacks went into 
specific instances in several cases, 
pointing out such deficiencies as Mr. 
London's attempting to get a football 
scholarship for a young man (the son of 
an AFDC recipient) who had one lung or 
kidney removed (R-489).

As to the charge that Mr. London used 
excessive sick and annual leave during 
the time he was in Pensacola, Defendant's 
Exhibit No. 213 (R-159b,160b), stipulated 
into evidence, contained a recapitulation 
of the 26 weeks he was assigned to Escam­
bia County, and out of those 26 weeks he 
worked only eight weeks without interrup­
tion. During the remaining 18 weeks, Mr. 
London was frequently absent one, two, 
three and even four days during a given 
week. He was also tardy on innumerable 
occasions, as the recapitulation sheet 
admitted into evidence shows.

Judge Arnow, upholding Appellant's 
dismissal by the Merit System Council in



43

his opinion below, noted first the proper 
judicial regard to be accorded the dis­
cretion of state officials in dismissing 
an employee, and then said:

"From the record, this court con­
cludes and finds that the findings 
of the Merit System Council were 
not arbitrary or unreasonable and 
were based on substantial evidence 
sufficient to support its conclu­
sions .

"In addition, this Court holds and 
finds there was not sufficient evi­
dence presented before the Council 
or before this Court to substanti­
ate Plaintiff's allegation that he 
was dismissed because of racial 
prejudice or in violation of his 
freedoms of expression or associa­
tion. "2 313 F.Supp. at 597

"There were no racial overtones 
in the charges before the Council 
at the dismissal hearing. Plain­
tiff, apparently recognizing such, 
took the position racial prejudice 
from his Okaloosa County employment 
followed him to Escambia County and, 
in effect, tainted the dismissal 
charges. But the evidence fell far 
short of establishing such. The 
Council made its position clear—  
it was deciding the dismissal charges 
on the quality and character of 
Plaintiff's work in Escambia County 
alone, and without any regard to



44

his prior employment in Okaloosa 
County." 313 F. Supp. at 597

Respondent, it is felt, has distin­
guished in this Brief the cases cited in 
favor of Petitioner, and has stated what 
the facts actually were concerning the 
transfer and dismissal of Mr. Isaac 
London. Respondent will now concern it­
self with cases cited by Respondent to 
substantiate the statement of facts.

In Garner v. Board of Public Works of 
City of Los Angeles, 341 U.S. 716 (1951), 
the United States Supreme Court said:

"We think that a municipal employer 
is not disabled because it is an 
agency of the State from inquiring 
of its employees as to matters that 
may prove relevant to their fitness 
and suitability for the public ser­
vice. Past conduct may well relate 
to present fitness; past loyalty 
may have a reasonable relationship 
to present and future trust. Both 
are commonly inquired into in de­
termining fitness for both high and 
low positions in private industry 
and are not less relevant in public 
employment." 341 U.S. at 720

It was stated by the United States Su­
preme Court in Adler v. Board of Educa- 
tion, 342 U.S. 485 (1952), in passing on



45

the constitutionality of a New York stat­
ute relating to employment in the school 
district:

"It is clear that, such persons have 
the right under our law to assemble, 
speak, think and believe as they 
will. [American] Communications 
Assn, [etc.] v. Douds, 339 U.S. 382 
[70 S.Ct. 674, 94 L.Ed. 925]. It 
is equally clear that they have no 
right to work for the State in the 
school system on their own terms. 
United Public Workers [etc.] v . 
Mitchell, 330 U.S. 75 [65 S.Ct.
556, 91 L.Ed. 7 5 4 ] 3 4 2  U.S. at 
492

The case of Jenson v. Olson, 353 F .2d 
285 (8th Cir. 1965), was an action for 
damages by the appellant Jenson for dis­
missal from his civil service employment. 
The appellant, incidentally, was a social 
worker employed by the Minnesota State 
Department of Public Welfare. Appellant 
was dismissed for falsifying certain por­
tions of his case records concerning his 
assignment with the State Welfare Depart­
ment, and also in the case records made 
repeated criticism and charges relative 
to political influence and fraud within 
the Welfare Department, as well as alleg­
ing inequities and inefficiencies within 
the departmental operation. He alleged 
that his dismissal was a violation of his 
right of free speech and due process and 
also that his dismissal was invalid as 
constituting an impairment of a contract.



46

The Court, in denying appellant relief, 
said as follows:

"Plaintiff contends that § 1983 of 
Title 42, U.S.C.A. affords him the 
right to relitigate the issues raised 
in the state proceedings and in addi­
tion seeks substantial damages . . ...

*  *  *  *

"Here plaintiff asserts a right to 
make any criticism or charges he 
deems warranted under the protection 
of the First and Fourteenth Amend­
ments. Within the bounds imposed by 
the laws of libel and slander no one 
would deny that plaintiff has this 
right. Plaintiff, however, has no 
right to public employment. He may 
speak as he pleases and level charges 
at all suspects. But if the exercise 
of this privilege disrupts his own 
work and reduces the efficiency of 
the department he is subject to dis­
charge for cause. . . . "  (Emphasis 
ours.)
In Swaaley v. United States, 376 F.2d 

857 (1967) , the Court with approval quot­
ed Jenson v. Olson, supra, and also echo­
ed Chief Justice Oliver Wendell Holmes' 
opinion in the case of McAuliffe v. Mayor 
of the City of New Bedford, 29 N.E. 517 
(1892): "The petitioner may have a con­
stitutional right to talk politics, but 
he has no constitutional right to be a 
policeman." In addition, the Court in 
Rackley v. School District No. 5, 258



47

F.Supp. 676 (1966) (cited by Appellant) 
had this to say at page 683:

"This court is fully aware that un­
der the laws of South Carolina the 
boards of trustees have the full 
responsibility of operating the pub­
lic school systems and it has no in­
clination to substitute its powers 
and judgment for that of the school 
boards. These powers inherently in­
clude within specified limits the 
free right to hire, discharge for 
good and sufficient reason, and re­
fuse to rehire for a succeeding 
school year. . . . "

The case of Goldwasser v. Brown, 417 
F.2d 1169 (1969), concerns the discharge 
of an air force civilian language instruc­
tor for his statements made to foreign 
officers and students regarding Vietnam 
and Antisemitism. The Appellate Court, 
in affirming the decision of the court 
below that the discharge did not violate 
appellant's First Amendment rights, said 
as follows:

"The parties are, thus, in agreement 
upon the test to be applied but not 
upon its result. In Pickering the 
Supreme Court defined the clashing 
interests with some particularity.
It recognized that public employ­
ment may properly encompass limita­
tions upon speech that would not 
survive constitutional scrutiny if 
directed against a private citizen, 
although there is certainly no easy



48

leap from tills to the proposition 
that a public employee necessarily 
assumes monastic vows of silence 
when he looks to the taxpayer for 
his salary. The Government's inter­
est as an employer is in heighten­
ing the level of the public services 
it renders by a ssuring the efficiency 
of its employees in the performance 
of their tasks; and efficiency com­
prehends the maintenance of disci­
pline, the prevalence of harmony 
among co-workers, and the elimina­
tion of conduct which may reasonably 
be thought to have 'impeded1 the 
proper performance by a teacher of 
'his daily duties in the classroom.1 
Conversely, the free speech interest 
of the teacher is to have his say on 
any and every thing about which he 
has feelings, provided there is no 
significant likelihood of impairment 
of his efficiency.

"What are the weights to be placed 
in the scale in the case at hand? 
Preliminarily we note that the pub­
lic school teacher in Pickering was 
not fired for what he said in class, 
but for writing a letter to a news­
paper critical of the policies es­
poused by the School Board and 
School Superintendent in the allo­
cation of school funds as between 
different educational programs.
The efficiency with which Pickering 
taught geography or algebra to the 
pupils immediately in front of him 
was not affected by his extracur­
ricular expressions.



49

"The Air Force's case against appel­
lant largely rests, however, upon 
the fact that he was supposed to be 
giving foreign officers a quick train­
ing in basic English, and that effi­
cient utilization of the short time 
involved was of critical importance. 
Furthermore, appellant was not teach­
ing the foreign officers current 
events, political science, sociology, 
or international relations. This is 
plainly evident from the record's 
disclosure that the Lesson Plan ap­
pellant was supposed to follow at 
the times in question called for 
language instruction on the subjects 
‘At the Dentist' and 'How to Test a 
Used Car.' Appellant's observations 
on Viet Nam and antisemitism would 
appear to have, at best, minimal 
relevance to the immediate class­
room objectives.

"We would also be blinking reality 
if we did not recognize that a class 
of foreign military officers at an 
Air Force installation on invitation­
al orders presents special problems 
affecting the national interest in 
harmonious international relations.
We are certainly not equipped to 
second-guess the agency judgment that 
the instructional goals of the Air 
Force program would be jeopardized 
by the teacher's volunteering his 
views on subjects of potential ex­
plosiveness in a multi-cultural 
group.



50

"On the record before us, we must 
assume that appellant was fired for 
what he said within the classroom 
to foreign officers who were sup­
posed to be learning how to cope 
With an English-speaking dentist or 
garage repairman, and not for air­
ing his views outside the classroom 
to anyone who would listen. There 
is nothing to suggest that appellant 
was required to keep his opinions to 
himself at all times or under all 
circumstances, but only in the imme­
diate context of his highly special­
ized teaching assignment--and we 
stress the uniqueness of appellant's 
teaching function in our disposition 
of this point. In view of that 
uniqueness, we cannot say that any 
of the interests underlying the First 
Amendment were served by appellant's 
insistence upon intruding his per­
sonal views into the classroom, or 
that his employer was disabled by 
those interests from imposing and 
enforcing the very limited restric­
tion emerging from this record.
Much greater limitations upon the 
civil freedoms of public employees 
generally have heretofore been sus­
tained." 417 F.2d at 1175, 1177

Respondent points out that these 
issues were dealt with at great length 
by the District Court. In fact, Judge 
Arnow noted (R-146) that the trial in the 
District Court was essential de novo in 
form. Petitioner is actually trying to 
argue in essence a motion for a rehearing



51

because he disagrees with the Court's 
decision. The opinion of a United States 
District Court Judge is accorded great 
weight and should only be overturned for 
a gross abuse of discretion. This is 
especially so where the record indicates 
a thorough examination of the issues 
and evidence as was had in the Court be­
low, and the opinion of the lower Court 
clearly indicates so.

Petitioner contends that the District 
Court, in failing to hold that the 
Respondent violated Petitioner's First 
and Fourteenth Amendment rights by main­
taining various personnel actions against 
Petitioner based largely on Petitioner's 
exercise of his right of free speech, was 
in error. The Court below gave careful 
consideration to Petitioner's First Amend­
ment claims:

"Plaintiff [Petitioner], as an 
employee, had the duty to comply 
with the reasonable requirements 
and regulations established by 
the Department. One of these 
requirements was that employees 
not engage in community contro­
versies that might disrupt the 
effective performance of their 
duty. Such requirement is reason­
able . Here, from the record, 
the Board in good faith believed 
that London's conduct had ad­
versely affected his effective­
ness and impaired the work of 
the Board. Again, as stated 
in Jenson v. Olson, supra,
'When his speech is disruptive



52

of the proper functioning of the 
public's business the privilege 
of governmental employment may be 
withdrawn without it being said 
that he was denied his freedom 
of speech-'" 313 F. Supp. 591,
596 (1970)
Noting that the requirements in ques­

tion were reasonable, the Court concluded 
that those officials concerned with Peti­
tioner's transfer acted in good faith and 
for the efficiency of both Petitioner and 
the Department. The position of Peti­
tioner was characterized by the Court as 
follows:

"Presented also is the picture of 
a public employee who pursues, as 
he has a right to pursue, his 
constitutional rights of freedom 
of speech, assembly, and associa­
tion; but does so without regard 
to its effect on his public em­
ployment. He has no right of 
public employment; where, as here, 
his exercise of his rights reduces 
and impairs his effectiveness 
and that of his public employer, 
he is subject to good faith 
transfer or dismissal." 313 
F. Supp. at 596
Any possible First Amendment claims 

Petitioner may have had could have con­
cerned only his transfer from Okaloosa 
County and could in no way be connected 
with his subsequent dismissal. The 
Court below made this clear in noting 
as regards Petitioner's transfer;



53

"Here, neither the Board nor the 
Council, on the appeal, dis­
missed the Plaintiff (Petitioner) 
from employment. Instead, they 
transferred him, believing that 
he might be able to work effec­
tively and efficiently in another 
county. There is simply no basis 
here for holding this transfer 
to be in violation of his First 
Amendment rights." 313 F. Supp. 
at 596
As regards the dismissal, the Court 

found:
"In addition, this Court holds 
and finds there was not suffi­
cient evidence presented before 
the Council or before this Court 
to substantiate Plaintiff's 
(Petitioner herein) allegation 
that he was dismissed because of 
racial prejudice or in violation 
of his freedoms of expression 
or association." 313 F. Supp. 
at 597



54

REASONS FOR DENYING THE WRIT

Lastly, Petitioner contends a multitude 
of ills in the lower courts, among them 
that his case and the lower courts 1 de­
cisions differ from that of the United 
States Court of Appeals for the Fourth 
Circuit in Johnson v. Branch, 364 F. 2d 
177 (1966), and, again, that of Pickering 
v. Board of Education, 391 U.S. 563 (1968), 
and alludes to the rather nebulous argu­
ment and unfounded contention that the 
only reason Petitioner was fired from 
Escambia County was that he was "erron­
eously placed on trial status" following 
the transfer.

Johnson v. Branch, supra, involved a 
situation wherein a teacher's contract 
was not renewed on the basis of minor 
infractions of school rules, none of 
which related to Mrs. Johnson's effec­
tiveness in the classroom. It was con­
tended that her First Amendment rights 
were violated by this action of the 
school board. It was conceded that at 
no time were her relations with her 
principal such that they interfered 
with her official duties, and that there 
was never an investigation by the hiring 
committee of her conduct.



55

The Johnson court noted that the 
grounds relied upon by the agency, re­
gardless of whatever valid grounds may 
have actually existed to justify dismiss­
al, were simply not sufficient to justi­
fy the board's action. Under this cir­
cumstance, the Court felt that the dis­
missal could not be sustained:

"In testing the decision of the 
school board the district court 
must consider only the facts and 
logic relied upon by the board 
itself. It is "a simple but fun­
damental rule of administrative 
law * * * that a reviewing court, 
in dealing with a determination 
or judgment which an administra­
tive agency alone is authorized 
to make, must judge the propri­
ety of such action solely by the 
grounds invoked by the agency.
If those grounds are inadequate 
or improper, the court is power­
less to affirm the administra­
tive action by substituting what 
it considers to be a more adequate 
or proper basis. To do so would 
propel the court into the domain 
which Congress has set aside for 
the administrative agency.'
S.E.C. v. Chenery Corp., 332 U.S.
194, 196, 67 S.Ct. 1575, 1577,
91 L.Ed. 1995 (1947). Similar­
ly the district court may not 
usurp the discretionary power of 
the school board but must judge 
the constitutionality of its ac­
tion on the basis of the facts



56

which were before the Board and on 
its logic." 364 F.2d at 181

The Court in Johnson v. Branch, supra 
did, however, note that expression of 
First Amendment rights was not absolute:

"[The Board's objections] . . .
would not justify refusal to re­
new her contract so long as these 
activities did not interfere with 
her performance of her school 
work." (Emphasis ours.) 364 
F.2d at 182

The dissent by Judge Bryan here criti 
cized the Court for refusing to consider 
all the facts and circumstances of the 
case:

"Consequently, the holding of the 
opinion amounts to this: even if
there were in truth other reasons, 
facts and logic which justified 
the defendants1 decision, but at 
trial the school authorities did 
not specify them as grounds relied 
on at the time of their decision, 
the District Court could not now 
look to them to see if the defen­
dants' action was on the whole 
right, and whether they should 
be subjected to the other prayers 
of the complaint." 364 F.2d at 
183 (dissent)

Judge Bryan noted that the District 
Court had carefully considered charges 
of racial prejudice and motivation and



57

felt that the Court of Appeals should 
have accepted this determination. Judge 
Bryan, choosing to concern himself with 
the facts behind the record, felt that:

"From all the evidence before him, 
which I think the District Judge 
was free to consider, and from all 
his findings and conclusions, which 
I think he was by law free to make, 
it clearly appears that this is not 
a color case. The judge carefully 
and candidly explored this accusa­
tion. The facts discovered expose 
its baselessness and the plaintiff1s 
neglect of her duties as the real 
ground for the School Committee's 
refusal to renew the appellant- 
plaintiff's contract. If the bur­
den is on the defendants, they have 
fully acquitted themselves of race 
motivation. The insinuation of 
race into the decision is unfor­
tunate and unwarranted." 364 F .2d
at 183, 184

Thus, the Johnson v. Branch case 
merely affirms the doctrine that Appel­
late Courts should look only to the rec­
ord on appeal in making their determina­
tions and indicates that expression of 
First Amendment rights is not absolute, 
and may, if the record is sufficient, be 
the basis for dismissal from employment 
where effectiveness is impaired.



58

Respondent has already pointed out the 
reasons why the decisions in the lower 
courts and this case are not in Pickering 
and will not reiterate same. (See pages 7 
-10, this Brief)

Additionally, Respondent will not go 
into the matter of the Petitioner's alleged 
erroneous return to trial status following 
the transfer. (Pages 6,7, this Brief)

Lastly, Petitioner mentions Stromberg 
v. California, 283 U.S. 359 (1931). Strom­
berg involved a three-point construction of 
a California statute, which enumerated three 
different offenses a person could be con­
victed of back in those days for waving a 
red flag in public. The innuendo being 
that it was a symbol of communism and that 
a person waving it could be inferred, or 
his actions could be inferred, as attemp*- 
ting to start a revolution. The lower 
court found her guilty on a general ver­
dict as did the Court of Appeals. The 
Supreme Court in that decision stated 
that since the verdict against the appel­
lant was a general one and did not specify 
under which of the three subsections 
appellant was convicted, i.e.,the two 
sections held constitutional or the one 
section held unconstitutional, it would 
be accordingly reversed.

The Stromberg case, supra, is in no 
way analogous to the situation before the 
Court in this petition. For example, this 
is not a criminal case nor was Petitioner 
convicted of any crime. He was consti­
tutionally transferred and constitutionally



dismissed and there is not even a hint by 
the trial court or the Circuit Court of 
Appeals that the transfer or dismissal was 
unconstitutional. The trial court agreed 
100 percent with Respondent's position and 
the United States Court of Appeals for the 
Fifth Circuit merely disagreed with a 
portion of the Judge's reasoning but never­
theless recognized that under Rule 52a,
28 USCA, Federal Rules of Civil Procedure, 
they could not and would not reverse. 
Respondent urges the same.

CONCLUSION
For the foregoing reasons, the Petition 

for Writ of Certiorari should not be 
granted and the decision below affirmed.

Respectfully submitted,

ROBERT L. SKEVIN 
Attorney General

S •

S . STROM MAXWELL 
Assistant Attorney 

General
The Capitol 
Tallahassee, Florida 

32304
Attorneys for Respondent



60

CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a copy of the

foregoing Motion to Dismiss and/or Affirm 
has been served by mail this day
of April, 1972, upon the following 
Attorneys for Petitioner:

THEODORE R. BOWERS 
P. 0. Box 811
Panama City, Florida 32401 
CHARLES STEPHEN RALSTON 
JACK GREENBERG 
NORMAN AMAKER 
WILLIAM L. ROBINSON 
VILMA M. SINGER 
10 Columbus Circle 
New York, New York 10019

JONATHAN R. HARKAVY 
JOHN D. ISKRANT 
THEODORE R. WAGNER
2 Wall Street
New York, New York 10005

S. STROM MAXWELL