STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORACE E. DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-297

) DEPARTMENT OF TRANSPORTATION, ) (CAREER SERVICE APPEAL), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing on petitioner's Career Service Commission Appeal was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 9:30 a.m. on April 22, 1977, in Courtroom C of the Judicial Building, 545 1st Avenue North, St. Petersburg, Florida.

APPEARANCES

For Petitioner: Horace E. Davis

Post Office Box 375

Pinellas Park, Florida 33565

For Respondent: Phillip Bennett, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to the issues herein, petitioner Davis was an automotive equipment repair foreman at respondent's Pinellas County Maintenance plant. In addition to this employment, petitioner also had a pecuniary interest in the Sunshine Speedway in St. Petersburg.

   
   

2. A steel pole was located on private property belonging to Sunshine Speedway. Because persons and/or vehicles had been injured by this pole, petitioner and a heavy equipment operator employed by respondent decided to remove it. They went to respondent's maintenance yard at 6:30 or 7:00 p.m. after their hours of employment, got a crane truck belonging to respondent, drove it to the Speedway, removed the steel pole to another area and returned the truck to the maintenance yard after dark. Petitioner neither asked for nor received permission to use respondent's equipment for this purpose.

3. At a time when petitioner was leasing the Sunshine Speedway, and during his hours of employment with respondent, he filled a dump truck belonging to respondent with limerock or scrap materials. After his hours of employment with respondent, petitioner drove this truck to the Speedway and dumped its contents near the entranceway for the purpose of making a culvert or crossover. While there was some evidence that petitioner had the permission of his immediate supervisor, Mr. William Dasher, to use the respondent's scrap culvert material, petitioner admitted that no one gave him the authority to improve the entranceway to the Speedway or to use the respondent's truck for this purpose.

   
   

4. As a result of the facts described in paragraphs 2 and 3 above, respondent found that petitioner had violated state rules and regulations and departmental policies with regard to the unauthorized use of state equipment outside of his regular assigned duties and responsibilities and for other than state purposes. The disciplinary action taken was demotion of petitioner from automotive equipment repair foreman at Pinellas Maintenance to automotive equipment mechanic II and reassignment to Tampa Maintenance.

   
   

5. Petitioner thereafter appealed this disciplinary demotion and reassignment to the Career Service Commission. The matter was referred to the Division of Administrative Hearings for hearing, and the undersigned was designated to conduct the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

6. An employee who has permanent status in the Career Service may only be disciplined for good cause. The employing agency has the burden of presenting evidence to support the basis of the charges against the employee and illustrate that the disciplinary action taken is in accordance with established rules and procedures.

   
   

7. In this proceeding, respondent has clearly sustained its burden of showing that on two separate occasions, petitioner used Department of Transportation equipment after working hours for his own private purposes and without respondent's authorization, Unauthorized use of state-owned vehicles for other than state purposes constitutes a violation of State Personnel Rules and disciplinary action was therefore proper. (F.A.C. Rule 22A-2.17)

   
   

8. Petitioner's prime contention at the hearing was not that he did not commit the offenses charged, but that the disciplinary action taken against him was too severe. The undersigned cannot agree with petitioner's contention as to the severity of the penalty imposed -- demotion and reassignment. The offenses of which petitioner has been guilty are serious and merit serious disciplinary action on respondent's part. Petitioner diverted state property for his own personal use. This action not only constitutes a violation of state rules and regulations. It also illustrates a lack of supervisory judgment and sets an unwarranted and unwise example for other employees who may be under petitioner's supervision. Retaining petitioner in respondent's employ because of his mechanic skills and abilities, while removing him from a supervisory capacity, does not constitute an unreasonable or unduly harsh penalty under the circumstances of this case.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the Commission affirm the demotion and reassignment of

petitioner inasmuch as the same was based upon good cause and was in accordance with established rules and regulations.

Respectfully submitted and entered this 23rd day of May, 1977, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Horace E. Davis Post Office Box 375

Pinellas Park, Florida 33565 Mrs. Dorothy Roberts

Appeals Coordinator

Phillip Bennett, Esquire Department of Administration Department of Transportation Room 530 Carlton Building Haydon Burns Building Tallahassee, Florida 32304 Tallahassee, Florida 32304

Docket for Case No: 77-000297

Orders for Case No: 77-000297