STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2083

)

CLEVEN WYATT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Conference Room S, State of Florida, Department of Health and Rehabilitative Services' District Office, 2355 East Bay Drive, Pinellas County, Florida. The date of the hearing was December 15, 1980.

APPEARANCES

For Petitioner: Frank X. Kowalski, Esquire

Chief Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518

For Respondent: Richard A. Motley, Esquire

Gulfcoast Legal Services, Inc.

6 South Fort Harrison Avenue Clearwater, Florida 33516

ISSUES

This case concerns the charges made by the Petitioner, City of Clearwater, Florida, against its employee Cleven Wyatt, Respondent, which lead to his termination and dismissal as an employee of that municipality. In particular, through charge one, the Respondent has been accused of violating Rule 14, Section 1(e) of the Civil Service Rules of Clearwater, Florida, by being offensive in his conduct toward a fellow employee. Through charge two, the Respondent is accused of committing a level five offense, within the meaning of the Guidelines for Disciplinary Action, City of Clearwater, Florida, in that he had an unauthorized possession of a knife on City property.

FINDINGS OF FACT

1. The Petitioner in this action is a City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community. Among its powers is the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831 pursuant to Chapter 21153, Special Laws of Florida, 1941.

   This Ordinance deals with the Career Civil Service System for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct.

   
   

2. In this instance, the Respondent, Cleven Wyatt, has been charged and dismissed from his employment within the Career Civil Service System of the City of Clearwater under the alleged authority set out in the Issues statement of this Recommended Order, pertaining to charges one and two. In association with charge one, it has further been specified that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt, during a verbal exchange between himself and Billy Harbuck, heavy equipment operator, struck Harbuck in the face with his hands and thereafter pulled a knife and threatened Harbuck physically with the knife by using the words, 'I will cut you.'" Further, the specification to charge two states that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt pulled a knife and threatened Mr. Harbuck physically by using the words, 'I will cut you.'"

   
   

3. Having been charged with these violations and in keeping with the remedy afforded, the Respondent, pursuant to Ordinance No. 1831, Section 2-38, of the City of Clearwater, Florida, he elected to have a Hearing Officer conduct a formal hearing to determine the accuracy of those charges placed against him. In turn, the City of Clearwater forwarded the case to the Division of Administrative Hearings for consideration. This arrangement was concluded pursuant to the contract between the Division of Administrative Hearings and the City of Clearwater, to provide a Hearing Officer for proceedings of this type. See Subsection 120.65(6), Florida Statutes. On December 15, 1980, the hearing was conducted.

   
   

4. The facts in this case reveal that on the morning of September 25, 1980, the Respondent brought his sanitation truck to the transfer station to dump the contents of that vehicle. When he arrived at the transfer station he was approached by another employee, Billy Harbuck, who stepped up to the truck and began a conversation with Wyatt, in which he accused Wyatt of stealing watermelons that were planted in the area of the transfer station. Wyatt then got out of his truck and continued to engage in this conversation which became heated and in the course of the exchange, Wyatt accused Harbuck of "making love" with Harbuck's girlfriend while in the "break-room" of the transfer station. In addition to the verbal intensity of this dispute, there had been finger pointing by both parties and when Wyatt made his remark about Harbuck's alleged amorous adventures, Harbuck struck Wyatt on the shoulder and Wyatt in turn slapped Harbuck in the face. (It was not proven that Wyatt stole the watermelons. The facts did establish that Wyatt's claim related to Harbuck's social life with his girlfriend was a false claim, in that his visit with his companion did net involve sexual intercourse.)

   
   

5. Following the physical encounter, the combatants armed themselves. The sequence of their arming was the subject of testimony in this cause in which there was extreme diversity of opinion among the several witnesses who gave testimony. Having reviewed that testimony at length with a view toward the interest in this case held by those witnesses and in particular the combatants and the resulting effect this has had on their creditability, it is unclear which individual armed himself first. However, it is certain that shortly after the blows were struck, Harbuck grabbed a metal stool from the ground. The stool was approximately three feet high and ten inches in diameter. It was also shown that Wyatt took a knife from his pocket and opened it and brandished the knife in the direction of Harbuck.

6. At the time the Respondent and Harbuck took up their weapons, another employee, James Cheatum, stepped between them and grabbed the stool which Harbuck held in his hands and pushed Wyatt away from the affray. When he looked from Harbuck to the direction of Wyatt, he saw the knife in Wyatt's hand. Harbuck being unable to further pursue this circumstance by using the stool, he then grabbed a shovel which was in his vicinity, but was again unable to take further action because he was restrained by Cheatum and a second employee, Grover Wilson. At the time that Harbuck was attempting to pick up the shovel, Respondent still had his knife drawn.

   
   

7. Both of the combatants expressed malice through their demeanor at the point where they were armed with the knife, stool and shovel, and both combatants were in fear of their opponent at that juncture. Neither individual attempted to strike the other individual with a weapon. Furthermore, the knife which the Respondent had possession was not a knife which he carried with him as a matter of course. It was a knife given to him by an employee of the City of Clearwater to make repairs on the Respondent's sanitation truck.

   
   

8. After that aspect of the circumstance involving the shovel had occurred, the fight ended and at the insistence of the supervisor at the transfer station, the Respondent departed the area. He was later charged with the alleged acts of misconduct.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative bearings has jurisdiction over the subject matter and the parties to this action.

   
   

10. Related to charge one, Rule 14, Section 1(e), of the Civil Service Rules of Clearwater, Florida, states that an employee of that unit of government who has been offensive in his conduct toward a fellow employee is held to be in violation of that Rule's provision. While the Respondent's conduct toward Billy Harbuck is found to be in violation of that tenant, Harbuck's actions were equally reprehensible toward the Respondent. Consequently, this should be borne in mind when a decision is made on the question of the implementation of a penalty against the Respondent over the authority of Rule 14.

    
    

11. In connection with charge one, although provoking or instigating a fight or fighting is a level five offense under the suggested penalty statement of the City Manager's Guidelines for Disciplinary Action and could bring about the possible discharge of an employee and could be used as supplemental authority for the imposition of a penalty. This result would be unduly harsh and inequitable, and this ultimate penalty is not warranted.

    
    

12. Charge two drawn pursuant to the Guidelines for Disciplinary Action prepared by the City Manager, states that the Respondent had an unauthorized knife or weapon on City property. Contrary to the accusation in charge two, there has been no proof that the knife in the possession of the Respondent at the time of the event was not authorized. Therefore, the proof fails and the charge should be dismissed.

    
    

13. Finally, it has been contended that Wyatt exclaimed in the course of the confrontation that he would cut the employee Harbuck, this has not been found as a fact and is rejected as a ground for disciplinary action.

20. After considering the facts in this case and in view of the conclusions of law reached herein, it is,

RECOMMENDED:

That the Respondent, Cleven Wyatt, be suspended for a period of twenty (20) days, and that he be given credit for the time which he has effectively been suspended from his employment pending the outcome of these proceedings. 1/

DONE and ENTERED this 12th day of January, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1981.

ENDNOTE

1/ In the Petitioner's statement of recommended penalty, reference is made to a prior offense by the Respondent, Wyatt, found in Petitioner's Exhibit No. 5, a copy of a personnel action dating from August 15, 1978, in which Wyatt was found to have struck another employee and was suspended for three days effective August 15, 1978. This conduct is inexcusable, but it may not constitute a basis for more severe disciplinary action in the present case in view of the statement in the Guidelines for Disciplinary Action which indicates in imposing disciplinary action on a current infraction or offense, the City will not take into consideration any prior infraction of City or department rules which occurred more than two (2) years previously." The events of September 25, 1980, having occurred more than two years after the punishment of August 15, 1978, the prior incident shall not serve to increase the penalty herein.

APPENDIX

The Petitioner in this action has filed written proposed facts and conclusions of law and these matters have been considered prior to the entry of this Recommended Order. To the extent that those proposals and conclusions are consistent with the Recommended Order, they have been utilized, to the extent that they are not consistent, they are hereby rejected.

COPIES FURNISHED:

Frank X. Kowalski, Esquire Chief Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518

Richard A. Motley, Esquire Gulfcoast Legal Services, Inc.

6 South Fort Harrison Avenue Clearwater, Florida 33516

Docket for Case No: 80-002083

Orders for Case No: 80-002083