STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

L. M. GERRELL, )

)

Petitioner, )

)

vs. ) CASE NO. 77-263

) FLORIDA HIGHWAY PATROL, CAREER ) SERVICE COMMISSION APPEAL, )

)

Respondent, )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled cause in Room 353, Marion County Courthouse, 110 Northwest 2nd Street, Ocala, Florida, at 9:30 a.m., on April 13, 1977, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearing.

This Career Service Commission appeal was referred to the Division of Administrative Hearings by the Career Service Commission with the request that a Hearing Officer be assigned to conduct a formal hearing to determine whether the disciplinary action taken against the Petitioner on the grounds stated in the disciplinary letter dated August 30, 1976 was for good cause. The basis for the eight-hour suspension of the Petitioner was an alleged violation of Section 2.1C of the Personnel Rules and Regulations by falsifying leave records.

APPEARANCES

For Petitioner: Frederick E. Landt, III, Esquire

Post Office Box 1943 Ocala, Florida 32670

For Respondent: John Whitney, Esquire

Department of Law Enforcement Neil Kirkman Building Tallahassee, Florida 32304

FINDINGS OF FACT

1. The Petitioner is a Florida Highway Patrol trooper and has permanent Career Service status. His appeal of his eight (8) hour suspension was timely filed with the Career Service Commission.

   
   

2. Timecard records of the Petitioner were introduced and show that he had indicated that he was on duty at the times indicated on the cards.

   
   

3. Lieutenant Tom Sigmond testified that he had examined the radio logs of the Florida Highway Patrol station to which he and the Petitioner were assigned and had compared the radio log entries for the dates which the Petitioner had indicated on his timecards that he was on duty. Lieutenant Sigmond stated that

   his examination of these records revealed that the Petitioner's timecard entries were inaccurate, however, that the entries taken as a whole did not reveal any attempt by the Petitioner to defraud the State by certifying that he had worked more hours than he was required to work. What Lieutenant Sigmond found were inaccuracies between the times the Petitioner had indicated on his timecard he had worked and the times he had actually worked as reflected by entries on the radio log. The radio log is maintained at the Highway Patrol station by the dispatcher on duty and reflects the date and time that patrol personnel go on duty and off duty.

   
   

4. The inaccuracies found by Lieutenant Sigmond occurred on weekends when the Petitioner was attending college classes. The Petitioner had approval to work split hours as the duty supervisor on weekends when he attended college classes. There was no impropriety in the Petitioner attending classes or working split shifts.

   
   

5. Subsequent to the closing of the agency's case, objection and motion to strike Lieutenant Sigmond's testimony was made by the Petitioner on the basis that his testimony regarding logs was hearsay upon which no finding could be based. The Hearing Officer permitted the agency to reopen its case and to introduce the actual radio logs about which Lieutenant Sigmond had testified. The agency presented the radio logs, which were introduced and substituted at a later date permitted. The agency, again, rested and the Petitioner moved to exclude the radio logs on the basis that they had not been properly authenticated by the custodian of the records. This motion by the Petitioner was denied by the Hearing Officer.

   
   

6. Comparison of the radio logs with the timecards prepared by the Petitioner substantiates the testimony presented by Lieutenant Sigmond.

   
   

   CONCLUSIONS OF LAW

   
   

7. The basis for the disciplinary action against the Petitioner was an alleged violation of Rule 22A-8.04(3), Florida Administrative Code, which provides as follows:

   
   

   Falsification of any attendance or leave records shall be cause for dismissal of the employee or employees involved.

   
   

8. The term "falsification", as used in 22A-8.04(3) may refer to either being intentionally or knowingly untrue with the intent to deceive or defraud or mistakenly or accidentally untrue. Under the first usage of the word, the intent to deceive or defraud becomes an element of the offense which must be proven. In the instant case, the testimony of Lieutenant Sigmond was that the Petitioner did not defraud the State by reporting more hours than he had actually worked. The nature of the inaccuracies in the Petitioner's timecard were in the nature of technical violations in which, for example, the Petitioner indicated on the timecard that he had worked from 7:00 a.m. to 11:00 a.m. and from 12 Noon to 4:00 p.m., when, in actuality, he had worked from 7:00 a.m. to 9:00 a.m., attended classes from 9:00 a.m. to 1:00 p.m. and returned to duty from 1:00 p.m. to 7:00 p.m. However, the employee knowingly put erroneous data on his timecard. Therefore, the inaccuracies were not mistakenly or accidentally untrue. Under the latter usage of the word "falsification", the Petitioner is in violation of the rule. Clearly, the State has interest, not only in preventing fraud but also in keeping and maintaining accurate records. Employees have an obligation to cooperate in the keeping of such records. The

   submission of inaccurate time records without the intent to deceive or defraud creates administrative difficulties which the employer has an interest in preventing.

   
   

9. The only errors in the Petitioner's time records related to discrepancies in the time records regarding the hours actually worked by the Petitioner, who was vested with the discretion to work those hours which he felt permitted him to supervise his men most effectively. His discretion in this regard is not questioned by the agency which was aware of the Petitioner's attendance of junior college classes on the weekends. The agency's action of suspension for eight (8) hours was based upon its desire to have the Petitioner maintain accurate time records, and the penalty cannot be said to be excessive.

   
   

10. The Hearing Officer finds that the Petitioner did prepare, sign and submit inaccurate time records without any intent to deceive or defraud, but that this conduct is a violation of 22A-8.04, Florida Administrative Code, for which the disciplinary action of suspension of eight (8) hours was taken for good cause.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the agency's action be sustained.

DONE and ENTERED this 27th day of May, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John Whitney, Esq.

Department of Law Enforcement Neil Kirkman Building Tallahassee, FL 32304

Frederick E. Landt, III, Esq.

P. O. Box 1943 Ocala, FL 32670

Mrs. Dorothy Roberts Appeals Coordinator

Department of Administration Room 530, Carlton Building Tallahassee, FL 32304

Docket for Case No: 77-000263

Orders for Case No: 77-000263