STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2215

)

AARON ALDERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on May 1, 1978, at Live Oak, Florida.

APPEARANCES

For Petitioner: Robert A. Chastain, Esquire

General Counsel Department of Agriculture

and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304

For Respondent: Aaron Alderson

107 Lee Avenue, Number 6 Live Oak, Florida 33060

This case involves the appeal of Aaron Alderson from suspension of duty without pay for two weeks by the Department of Agriculture, based upon allegations that Alderman willfully violated Department rules and was guilty of conduct unbecoming a public employee. Alderson's appeal was aimed principally at the magnitude of the punishment awarded as being either inappropriate or unauthorized for the offenses alleged. Three witnesses were called by the Department, two witnesses, including Respondent, were called by Respondent and seven exhibits were admitted into evidence. In addition, the letter dated November 3, 1977, notifying Respondent of the punishment awarded and his appeal therefrom dated November 15, 1977, were forwarded with the request for the appointment of a hearing officer and were considered as though admitted into evidence.

FINDINGS OF FACT

1. The facts in this case were undisputed by the individuals having personal knowledge of the incidents and may be summarized in narrative form.

   
   

2. Three young road guard inspectors including Respondent Aaron Alderson, occupied Inspection Station 9A on I-75 during the early morning hours on

   September 30, 1977. Little traffic had passed during the preceding 2 or 3 hours and idleness and exuberant youth brought forth ideas for diversion. Earlier in the evening salt had been sprinkled on Alderson. Around 4:00 a.m. Perry, one of the men in Station 9A, removed his belt and gun before going to the toilet.

   While he was in the toilet Alderson, as a practical joke, removed the cylinder from Perry's revolver and replaced the revolver in its holster. When Perry came out and put on his belt and gun, Alderson immediately commented to Perry that he would have a hard time firing his gun. Perry then looked at his gun, saw the cylinder missing and he and Alderson replaced the cylinder thus restoring the weapon to operation.

   
   

3. Shortly thereafter Alderson and Perry began friendly bumping into each other and then decided to go outside where there was more room for exercise. They removed their belts and guns, leaving them in the station, and went to the side of the building where they began friendly tussling. During this time the other occupant of Station 9A, Hudson, remained in front of the station keeping a lookout for trucks. When a truck entered the ramp, the horseplay was stopped until after the truck had departed. The occupant of Station 9B across the highway from Station 9A was also out in front of his station and could see Alderson and Perry in the lights from Station 9A.

   
   

4. After 10 or 15 minutes of horseplay consisting of friendly grappling and tussling, Anderson and Perry had expended sufficient energy to return to the more sedentary chore of waiting for approaching trucks. At all times involved in these incidents, both parties were in uniform, the sun lacked several hours of announcing the approach of day, little, if any, traffic passed Station 9A on the I-75 and the uniforms of Alderson and Perry were neither dirtied nor mussed.

   
   

5. As a result of the above incidents, Perry was suspended from duty without pay for 5 days and Alderson was suspended from duty without pay for 10 days. Apparently no appeal was taken by Perry but Alderson's suspension cost him his biweekly salary of $292.63, less withholdings.

   
   

6. In 1976, legislation was passed authorizing the arming of road guard inspectors and they were first armed, after completing Police Standards Training, in late 1976. At the time they were authorized to carry arms, they were issued a copy of the Firearms and Ammunition section from the Department of Agriculture's Policy Manual and told to become familiar with it. A copy of this instruction was admitted as Exhibit 1. Respondent acknowledged that he was given a copy of the instruction offered as Exhibit 1 at the time he was authorized to carry a weapon but denies that he read paragraph E thereof with full understanding.

   
   

7. Alderson appears to have been employed in 1975, as a road guard inspector and received his first employee performance review dated 11/05/75.

   Two additional evaluations dated 6/14/76 and 4/10/77, were admitted into evidence with the initial evaluation as a composite exhibit 5. It is noted that Respondent's performance scores, prepared by his supervisor, have increased with each subsequent evaluation. In his latest evaluation Alderson was rated as exceptional and one of the most knowledgeable inspectors in the division.

   
   

8. During Alderson's testimony he was open, forthright and responded to all inquiries with composure and decorum. He freely admitted the facts as noted above and acknowledged he now realizes the seriousness of tampering with a weapon as a practical joke. His primary concern with this no appeal was his conviction that the punishment was not commensurate with the offenses and that he had not been given an opportunity to state his side of the case to the

   superior who actually recommended the punishment before it was approved and awarded.

   
   

9. The road guard inspector, who inadvertently disclosed the incident to Roger Pittman, the assistant chief, Road Guard Bureau, who appears to have been the prime mover in the punishment awarded, testified that he felt so bad about the incident he thought about resigning from the road guard.

   
   

10. The demeanor of all witnesses leads the undersigned to conclude that the manner in which this incident was handled was detrimental to the morale of the inspectors in the road guard bureau.

    
    

    CONCLUSIONS OF LAW

    
    

11. The regulation that Respondent was alleged to have willfully violated is contained in paragraph E of Exhibit 1 which provides:

    
    

    Revolvers are never to be displayed or taken from holsters while on duty, or

    taken from holsters except in line of duty.

    1. Cleaning of revolvers while on duty or in work area is prohibited.

       
       

12. Cleaning of a revolver was not here involved; the violation charged is that Respondent removed Perry's gun from its holster. While the first sentence of paragraph E is hardly a model of clarity with its absolute prescription against removing a gun from its holster while on duty, followed by the modified prescription against removing the gun except in line of duty, it appears that the author intended guards on duty to remove guns from holsters only when their use appeared necessary.

    
    

13. Whether one could "willfully" violate the ambiguous paragraph E above quoted is not without doubt; however, I find that it could be willfully violated only by one who had carefully studied the sentence. Since this instruction was given to Respondent when he was authorized to bear arms he cannot escape responsibility for failing to comply with the instruction because he did not read it; however, a very careful study of the instruction is required before comprehension results.

    
    

14. This is the first offense charged against Respondent. Exhibit 2, Procedure 009 of the Department of Agriculture Personnel Procedure Manual under a section entitled Standards of Disciplinary Action shows the authorized punishment for the first offense of willful violation of written rules, regulations or policies to be a written reprimand.

    
    

15. Although horseplay is covered as an offense for which Exhibit 2 provides a punishment of oral reprimand for a first offense, Respondent was charged with the much more serious offense of conduct unbecoming a public employee for which the punishment authorized for a first offense is 3 days' suspension to dismissal.

    
    

16. No evidence was presented regarding the elements of this offense. Absent these elements, in order to determine the type of conduct proscribed, this offense must be compared with more familiar offenses for which a similar punishment is authorized. These other offenses for which 3 days' suspension to dismissal is authorized for a first offense includes falsification of records and stealing. First offenses for which the authorized punishment is limited to

    3 days' suspension include: Reporting to work under the influence of liquor or drugs, drinking on the job, and fighting.

    
    

17. It is incomprehensible to find the conduct of Aaron Alderson and Nelson Perry while expending excess energy in friendly horseplay at 4:00 or 4:30 a.m., September 30, 1977, to equate in seriousness to larceny or falsification of records, let alone to be a more serious offense then drinking on the job or fighting.

    
    

18. Accordingly, the evidence that Respondent was guilty of conduct unbecoming a public employee, as alleged, is totally lacking and Respondent must be found not guilty of that offense. The offense committed amounted to no more than horseplay for which only an oral reprimand is authorized.

    
    

19. Exhibits 6 and 7 present other conundrums which demand comment. By Exhibit 7, the commissioner delegated authority to Personnel Director Dierking to suspend Alderson from duty as disciplinary action. The letter signed by Dierking which suspended Alderson from duty without pay for ten working days states "Commissioner Conner has reviewed and approved your Division Director's recommendation that you be suspended without pay for a period of ten (10) workdays." It would appear appropriate, if such procedure is legally permissible, for the Commissioner to delegate to his Personnel Director the authority to take certain disciplinary actions against personnel of +he Department of Agriculture. If, in fact, such authority was here delegated as Exhibit 7 states, it would appear to be inaccurate and redundant for the suspension letter to state that the Commissioner has reviewed and approved the disciplinary action taken.

    
    

20. According to Exhibit 6, Perry was suspended from duty without pay for five (5) working days for conduct unbecoming a public employee. As noted above, he was a participant in the horseplay with Alderson. Although Perry declined to avail himself of his right to appeal, and has now lost that right, nevertheless the same comments made above regarding this particular charge are fully applicable to Perry's disciplinary action. Exhibit 6 also contains the information that Commissioner Conner has reviewed and approved the recommended disciplinary action. Since such a punishment is unauthorized for the offense committed by Perry, it is strongly suspected that the morale of the road guard bureau would be greatly improved and an inequity corrected if administrative action were taken by Commissioner Conner to set aside the punishment of suspension from duty for five (5) working days awarded to Perry in the letter of November 3, 1977 (Exhibit 6).

    
    

21. From the foregoing it is concluded than Aaron Alderson is not guilty of conduct unbecoming a public employee by his actions on September 30, 1977, and that he did violate the Department's regulations respecting firearms and ammunition, however, in view of the ambiguity of the regulation, such violation was not willful. It is, therefore,

RECOMMENDED that the suspension of Aaron Alderson from duty without pay for ten (10) working days be set aside and Alderson restored to all rights, privileges and property of which he was deprived by reason of this unauthorized action.

DONE and ENTERED this 18th day of May, 1970, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 323041

(904) 488-9675

COPIES FURNISHED:

Robert A. Chastain, Esquire General Counsel

Department of Agriculture and Consumer Services Room 513, Mayo Building

Tallahassee, Florida 32304

Aaron Alderson

107 Lee Avenue, #6

Live Oak, Florida 33060

Dorothy B. Roberts Appeals Coordinator

Room 530, Carlton Building Tallahassee, Florida 32304

Conley M. Kennison

State Personnel Director Carlton Building Tallahassee, Florida 32304

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32304

Docket for Case No: 77-002215

Orders for Case No: 77-002215