STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

B. M. LIBBY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1209

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, FLORIDA ) HIGHWAY PATROL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer, with the Division of Administrative Hearings, at 9:00 a.m., on August 25, 1977, at the Clay County Courthouse, Green Cove Springs, Florida.

B. M. Libby, Petitioner, appeared in his own behalf and E. J. Whitney, Esquire, appeared as counsel for Respondent, Department of Highway Safety and Motor Vehicles, Florida Highway Patrol.

Petitioner (hereafter Libby), a trooper with the Florida Highway Patrol (hereafter FHP) appeals his sixteen hour suspension without pay for alleged violations of Department of Highway Safety and Motor Vehicles personnel rules and regulations, 2.1 and FHP General Order 43-4, Negligence in the performance of duty. It is charged that Libby improperly performed his duty in the investigation of an automobile collision. The issue is whether the disciplinary action taken by FHP against Libby was for good cause.

FINDINGS OF FACT

1. At about 12:00 noon on January 31, 1971, an automobile collision occurred in Clay County, Florida, between David Earl Mattox and Douglas Jay Gilbert. Mattox, driving a Chevrolet pick-up, slid into the rear of Gilbert's Ford sedan after being unable to stop on the wet pavement. Mattox was uninjured and Gilbert complained of a slight headache. An acquaintance of Gilbert was riding in Gilbert's car as a passenger.

   
   

2. Neither driver reported the accident at that time and, in fact, drove his own vehicle to Gilbert's place of business to talk about the accident. A decision was made at that meeting to handle the matter privately without notification of insurance companies or law enforcement, authorities.

   
   

3. Later that day, Gilbert's head and neck began hurting so Gilbert's father took him to a doctor in Green Cove Springs. The doctor advised Gilbert that he had suffered whiplash. Gilbert continued to visit the hospital for about two days for treatment and diagnosis.

4. That same evening, after the diagnosis was received, Gilbert's father called Mattox and advised him that the accident should be reported. Mattox agreed and at approximately 5:00 p.m. on the day of the accident, Mattox called Libby at home. Mattox had planned a trip to Daytona Beach that evening so Libby agreed to wait until the next day to make his investigation of the accident. At about 3:00 p.m., February 1, 1977, Libby met with Mattox and Gilbert's father at Mattox's place of business. At that time, Libby interviewed Mattox and Gilbert's father, inspected Mattox's vehicle and prepared the accident report.

   
   

5. Gilbert was not present at the meeting and at no time did Libby interview him or Gilbert's passenger regarding the accident. At no time did Libby inspect Gilbert's vehicle. Although another Florida Highway Payroll trooper was on duty in the area, Libby agreed to conduct the accident investigation even though he was not on duty. Libby attended the meeting in civilian clothes. Libby did not investigate the scene of the accident.

   
   

6. The accident report prepared by Libby fails to disclose that Gilbert's vehicle contained a passenger and fails to include a diagram of the collision. The accident report recites the amount and degree of damage to Gilbert's car, notwithstanding Libby's failure to inspect the vehicle. The stated damages in the accident report are $150.00 whereas the actual damages were closer to

   $400.00. As reflected in the accident report, no arrests or charges were made as a result of the collision. As of the time of the hearing, no charges had been made and no supplemental report had been filed.

   
   

7. It is the policy of FHP that all vehicles be inspected and all principals be interviewed, if possible, prior to the final preparation of an accident report. In addition, it is policy that Highway Patrol officers be in uniform when performing their duties. The accepted procedure in these circumstances would have been for Libby to either contact an on duty trooper to go on duty himself in uniform prior to investigating the accident.

   
   

8. Libby has been previously disciplined for negligence in the performance of his duty.

   
   

   CONCLUSIONS OF LAW

   
   

9. Libby is charged with the negligent performance of his duties. In this context, negligence is synonymous with neglect. Negligence is the failure to do what a reasonable and prudent highway patrol officer would ordinarily have done under similar circumstances. Neglect of duty is the failure to perform a duty that is required of the officer by law.

   
   

10. Section 316.060, Florida Statutes, requires, inter alia, that accident reports made on Department of Highway Safety and Motor Vehicles' forms shall contain all the information required therein unless unavailable.

    
    

11. Section 321.05, Florida statutes, provides, inter alia, that Highway patrol officers shall investigate traffic accidents, secure testimony of witnesses and of persons involved and make reports thereof.

    
    

12. In support of its charges of negligence, FHP attempts to establish that Libby was guilty of favoritism to Mattox. This is based on the fact that Libby and Mattox had done business with each other previously, that Libby had referred to Mattox by his first name, that Libby had failed to charge Mattox with any violations arising from the accident and, finally, on the unsupported allegation that Mattox claimed that Libby would "help him" or "not hurt him" in

    the investigation of the accident. As to the latter contention regarding Mattox's declaration, it is unsupported by any evidence save hearsay, is in fact, denied by Mattox himself and accordingly is not made a finding of fact in this recommended order.

    
    

13. It is concluded that there is insufficient evidence to establish that Libby is guilty of favoritism in his relations with Mattox.

    
    

14. However, the evidence is uncontroverted that the accident report prepared by Libby does not contain all the information required therein, in that the occupant of Gilbert's vehicle is not listed, no diagram of the accident is drawn and the amount of damage is improperly stated. Furthermore, Libby failed to perform his duties in that he failed to investigate thoroughly the traffic accident and failed to secure the testimony of Gilbert and his passenger, both witnesses and persons involved, as required by 321.05, Florida Statutes. Libby failed to follow FHP policy in that he did not go on duty, in uniform, prior to investigating the accident. Libby is, therefore, guilty of the negligent performance of his duties.

    
    

15. This being the second disciplinary action taken against Libby for negligence in the performance of his duties, the sixteen hour suspension is appropriate. It is concluded that the disciplinary action taken against Libby was for good cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Career Service Commission sustain the action taken by FHP.

DONE and ENTERED this 8th day of September, 1977, in Tallahassee, Florida.

MICHAEL R.N. McDONNELL

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Mr. B. M. Libby Post Office Box 322

Green Cove Springs, Florida 32043

Edwin E. Strickland, Esquire General Counsel

Neil Kirkman Building Tallahassee, Florida 32304

Mrs. Dorothy B. Roberts Room 530 Carlton Building Tallahassee, Florida 32304

Enoch J. Whitney, Esquire Assistant General Counsel Neil Kirkman Building Tallahassee, Florida 32304

Docket for Case No: 77-001209

Orders for Case No: 77-001209