STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL F. McDERMOTT, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1084

) FLORIDA PAROLE AND PROBATION ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER APPEARANCES

For Petitioner: No appearance

For Respondent: Carolyn Snurkowski, Esquire

1117 Thomasville Road

Tallahassee, Florida 32303

This matter came up for hearing before the undersigned Hearing Officer in Room 360, 1350 Northwest 12th Avenue, Miami, Florida, on August 11, 1976, 10:00

a.m. The Petitioner had been an employee of the Florida Parole and Probation Commission and had been suspended for three days for "conduct unbecoming a public officer". Petitioner appealed his suspension to the Career Service Commission which agency referred the Petitioner's appeal to this division to conduct an administrative hearing.

The Petitioner did not appear at the hearing in this cause. The Respondent made a presentation of the facts upon which the following findings were made.

The Petitioner was a parole and probation officer with the Florida Parole and Probation Commission. On the morning of June 16, 1975, the Petitioner had to go to the chambers of Circuit Judge Ellen Morphonious, Dade County, Florida. Mr. McDermott went there for the purpose of swearing an affidavit and securing a warrant on a particular case he was working. Shortly after 9:00 a.m.

Petitioner, who was in the office of Judge Morphonious, was advised by Don Wright, the Judge's Bailiff, that he had arrived there too late and that Judge Morphonious had gone on the bench. Thereafter, an argument ensued between Wright and the Petitioner. Apparently, the argument became very heated and the Petitioner left the Judge's offices and walked to a different room in the Justice Building. Mr. Wright followed the Petitioner to this room and continued the argument. After continuing the argument Mr. Wright asked the Petitioner what his name was and indicated he would see Judge Morphonious about having the Petitioner held in contempt. The Petitioner did not tell the Bailiff his real name and gave the name of one of the subjects of his case. Because of the fact that Petitioner gave a false name he was charged with conduct unbecoming a public employee and suspended for three days.

The Bailiff who was involved in the argument with the Petitioner did not appear and testify at this hearing. No evidence, therefore, was presented as to who was at fault for starting the argument or having it get out of control.

Based on the evidence presented at this hearing it cannot be stated that the failure of Petitioner to give his right name automatically constitutes conduct unbecoming a public employee. In this case, Petitioner left the scene of an argument, but was pursued and confronted by the Judge's Bailiff who, this Hearing Officer finds, has no authority outside the courtroom. Furthermore, under the implied threat of bringing the Petitioner before the Judge to have him held in contempt, there is certainly cause for the Petitioner not to be cooperative in responding to the Bailiff's question regarding his identity. In other words, under the circumstances surrounding this case, the Petitioner had no duty to the Bailiff to give him his identity. It was apparent the Bailiff's motive in asking his name was not one of good faith. It is, therefore, RECOMMENDED that the appeal of Petitioner be granted and that he be reimbursed for his three day suspension.

DONE and ORDERED this 16th day of September, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Michael F. McDermott 12048 Graywing Square Reston, Virginia

Carolyn Snurkowski, Esquire 1117 Thomasville Road

Tallahassee, Florida 32303

Mrs. Dorothy B. Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-001084

Orders for Case No: 76-001084