STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1204

)

JAIME FERNANDEZ, )

)

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 June 24, 1981, at Clearwater, Florida.

APPEARANCES

For Petitioner: Frank X. Kowalski, Esquire

Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

For Respondent: Jaime Fernandez, pro use

1744 Doncaster

Clearwater, Florida 33516

By Termination and Dismissal Notice dated March 9, 1981, (Exhibit 2), the City of Clearwater, Petitioner, notified Jaime Fernandez, Respondent, that he was being terminated as an electronics technician (ET) helper in the Traffic Engineering Department of the City of Clearwater by reason of incompetency.

This notice contained three specifications providing the basis for the proposed action. Specifically, it is alleged that during the week of February 2 to February 5, 1981, Respondent's performance on a work order involving a lead terminal plate was unsatisfactory and he submitted three or four erroneous time cards; that during the period from February 9 to February 19, 1981, Respondent worked on one detector for twenty-one and one-half hours without effecting repairs and that it was assigned to another worker who repaired it in one hour; that his work on repairing an LT 169 load pack was unsatisfactory; and that during Respondent's employment with the City, he has consistently received unsatisfactory evaluation reports.

At this hearing, which is an appeal from the dismissal notice, five witnesses were called by Petitioner, Respondent testified in his own behalf, and six exhibits were admitted into evidence. Objection to Exhibit 7, comprising affidavits of another City employee, on the ground of hearsay, was sustained.

Proposed findings submitted by Petitioner and not included below were not supported by competent evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Jaime Fernandez was transferred in 1977 to Clearwater Traffic Engineering Department as an electrician's helper from the Clearwater Pollution Control Department. Prior to coming to Water Pollution Control, Respondent had been a CETA employee in the Parks Department from which he was fired for incompetence (Respondent's testimony). Although the exact situation was not made clear to the Hearing Officer, it appeared that Respondent appealed his firing from the Parks Department alleging some type of discrimination, and, following a hearing, the City was required to reemploy him.

   
   

2. At all times here relevant, Respondent was an employee in the Classified Civil Service of Clearwater.

   
   

3. Respondent testified that the evaluations he received at Water Pollution Control were satisfactory overall, and the request for a transfer was initiated by him.

   
   

4. As an electrician's helper, Respondent was one of six or seven electrician's helpers. When he was subsequently transferred to the position of ET helper, he was the only ET helper in the Traffic Engineering Department.

   With a larger number of electrician's helpers it was easier to assign trench digging, painting and other similar menial jobs to Respondent without detracting from the overall efficiency of the Department than it was when Respondent became the only ET helper in a group with two ET's.

   
   

5. Respondent served as an electrician's helper in the Traffic Engineering Department for approximately two years before he was transferred to the position of ET helper. During these two years as an electrician's helper, Respondent failed to get a satisfactory overall evaluation and never received a merit pay increase. He was transferred to the electronics shop as an ET helper in late 1979.

   
   

6. In the six months follow-up review of Respondent's unsatisfactory evaluation report dated 2-9-80, the Director of the Traffic Engineering Department recommended Fernandez be terminated for incompetence. This recommendation was rejected by the Personnel Department because of insufficient documentation of the events giving rise to the recommendation.

   
   

7. On August 25, 1978, Respondent was given a letter of reprimand following an accident involving a truck, driven by Respondent, and a building in which Respondent's inattention contributed to the accident (Exhibit 6).

   
   

8. On April 14, 1980, Respondent was suspended from duty without pay for three days on charges of incompetence and inefficiency in his work product, errors in daily time cards and other reports, and continuous performance evaluations indicating improvement needed.

   
   

9. On the instant charges the evidence was unrebutted that during the period August 1, 1980, through March 15, 1981, 19 errors were made by Respondent on the time sheets he submitted. Twenty-seven other employees in the same Department fill out time sheets and, during the same period, the next highest number of errors was eight. Most of the employees made only one or two errors in completing their time sheets.

10. During the period February 2, 1981 to February 5, 1981, Respondent was given a work order to construct and install back boards in two transit controllers (Exhibit 1). Included in the work order was a drawing showing how the panel was to be connected and detailed instructions on how the work was to be performed. Despite close supervision, Respondent failed to follow the instructions, cut the wires longer than the maximum three feet lengths as shown on the work order, installed grounding bar in the wrong location, and did not properly lace the harness. This work order was within the capability of a reasonably qualified ET helper to complete in twenty hours. Respondent took forty-seven hours to accomplish this work and made numerous errors which had to be corrected by others.

    
    

11. During a period in mid-February; 1981, Respondent was assigned a detector to repair. Repair of this equipment was also within the capability of a reasonably qualified ET helper in about four hours. After working on this detector for twenty-one hours, Respondent was still unable to repair it. It was given to an electronics technician who repaired the detector in approximately one hour.

    
    

12. Respondent, in work order 136, was given an LT 169 load pack to repair. Test equipment is set up in the petitioner's shop for trouble shooting this equipment. After testing this load pack, Respondent replaced the part he thought defective but, when tested by someone else, the equipment was still inoperative. The part replaced by Respondent was the part most frequently found defective in this load pack. In this instance, this part was not the cause of the equipment being in operative. This was a routine work order that a reasonably qualified ET helper should have been able to complete.

    
    

13. Respondent has been counselled and evaluated numerous times by different supervisors in the Traffic Engineering Department for the past three years and has yet to be assigned a satisfactory evaluation. No other employee has been retained in a position with the City of Clearwater for such an extended period with unsatisfactory evaluations.

    
    

14. Respondent testified that he has completed a two-year course in electronics at Pinellas County Vocational School and has one year of college. Accordingly, he deemed himself better qualified as an ET helper than as an electrician's helper. He felt he should have been disciplined for incompetency as an electrician's helper during the two years he worked in that Division, rather than as an ET helper in which position he has worked for approximately one year.

    
    

15. Respondent's testimony, that he was denied earned leave or pay for this leave when he was dismissed, was not rebutted. However, the City of Clearwater's regulations relating to leave were not presented to the Hearing Officer, and without access to these regulations, Respondent's claim cannot be resolved.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

17. The Civil Service Regulations for the City of Clearwater, under Rule 14, Section 1, lists the following causes for suspension, demotion or dismissal relevant to the charges here involved.

    
    

    (d) Is incompetent or inefficient in the performance of the duties of his position (specific instances to be charged)

    
    

18. Section 4 provides that the Appointing Authority may discharge an employee for one or more causes listed in Section 1.

    
    

19. From the evidence presented, it is clear that Respondent has been given unsatisfactory evaluations as a result of his incompetency both as an electrician's helper and as an ET helper in the City of Clearwater's Traffic Engineering Department for the past three years. It is also clear that from the evidence presented Respondent is incompetent as an ET helper as alleged.

It is, therefore,

RECOMMENDED that Jaime Fernandez be discharged, by reason of incompetency, from his employment as an electronics technician helper with the City of Clearwater Traffic Engineering Department.

ENTERED this 9th day of July, 1981, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1981.

COPIES FURNISHED:

Frank X. Kowalski, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

Jaime Fernandez 1744 Doncaster

Clearwater, Florida 33516

Docket for Case No: 81-001204

Orders for Case No: 81-001204