STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1526

)

WILLIAM M. BARNETTE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on July 20, 1983, in West Palm Beach, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Stanley J. Niego, Esquire

South Florida Water Management District Post Office Box V,

West Palm Beach, Florida 33402-4238

For Respondent: Raymond A. Rea, Esquire

Post Office Box 251

Boynton Beach, Florida 33425

This matter arose on Petitioner's discharge of Respondent and the latter's request for hearing pursuant to Section 120.57(1), Florida Statutes (1981). The parties submitted proposed findings of fact and conclusions of law. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. Respondent was initially employed by Petitioner on April 13, 1970. He was appointed to the position of Superintendent of Petitioner's West Palm Beach Field Station in 1973, and continued in that position until March 9, 1983, when he was discharged.

   
   

2. As Superintendent of the West Palm Beach Field Station, Respondent supervised approximately 80 maintenance operations and administrative employees. The facility is located adjacent to Petitioner's headquarters, and is somewhat larger in terms of employees than Petitioner's other field stations.

   
   

3. Respondent was a generally capable and dedicated employee of Petitioner. However, his management style and personality were often irritating to his employees, coworkers and supervisors. The incident which precipitated

   his discharge involved the retirement of a valued employee who was supervised by Respondent. The employee informed Respondent's supervisor that one of the reasons for retirement was his difficulty in working for Respondent.

   
   

4. Specifically, the retiring employee was embarrassed by Respondent's handling of a subordinate's failure to earn promotion. Respondent advised the employee in his subordinate supervisor's presence that he (Barnette) was ready to promote the employee, but that the subordinate supervisor was opposed. The cancellation of the promotion was unnecessarily dramatized by Petitioner dropping the promotion form in the wastebasket in the presence of the subordinate supervisor and the employee.

   
   

5. The testimony of witnesses from the West Palm Beach Field Station established that the Respondent has a hot temper, and is subject to frequent temper outbursts. His radio room operator overheard Respondent yelling at people in his office through a closed door once every week to two weeks. Other witnesses also observed the Respondent engaged in loud arguments with his subordinates. Respondent admitted on cross-examination to having a temper, and did not deny that the incidents attested to by Petitioner's witnesses. Respondent's temper outbursts were unacceptable conduct, and Petitioner counseled Respondent regarding this deficiency in 1978 and periodically thereafter.

   
   

6. The testimony of Mr. George Dupley, Supervising Professional Engineer, established that on several occasions Respondent refused to comply with design instructions from headquarters, which resulted in additional project cost to the District. His testimony also indicated Respondent had a generally uncooperative attitude, and that he was much less cooperative than other field station superintendents, with whom Mr. Dupley had no problem. Mr. Rob Baskin, Assistant Structure Maintenance Coordinator, was subjected to an incident where Respondent blew up at him in the presence of other employees and told him to leave the job, while he was attempting to carry out assigned duties. Dupley, Baskin and other headquarters staff personnel avoided dealing with Respondent whenever possible because of his hot temper and hostile attitude.

   
   

7. Respondent's uncooperative attitude extended to the District's personnel office. Respondent generally disregarded the Petitioner's recruitment policy which required that no external applicant be interviewed or hired for an open position until internal employees had been interviewed. Respondent's refusal to comply with this policy created morale problems and prompted the filing of several employee grievances. Respondent was counseled on this problem in 1981.

   
   

8. Respondent's disregard of personnel policy was most flagrant in his hiring of his niece's husband in 1982, after being advised by Petitioner's personnel office that such action would constitute a violation of its anti- nepotism policy. Respondent was disciplined for this infraction under Petitioner's "Corrective Action Policy" (discussed below), and assigned 25 points. This was a "category 2" offense for which the penalty was to remain in effect for six months. This disciplinary action would have expired March 14, 1983, five days after Respondent was discharged.

   
   

9. In the nepotism memorandum, dated September 17, 1982, Respondent's supervisor also stated:

   
   

   [I]t has come to my attention from numerous sources that both employees and supervisors

   avoid discussions with you for fear of temper outbursts. You are attempting to maintain a one man iron rule at the station which is out of step with the District's management philosophy . . . Any future problems may require dismissal.

   
   

10. Although Respondent never received an unsatisfactory merit review rating, his April 7, 1978, rating included the following observations:

    
    

    A negative form of reluctance is evident relative to meeting organizational and program objectives. There is too much disregard for certain headquarters expertise. As a superintendent improvement is mandatory.

    
    

    Decision-making on certain occasions appears tainted with prejudice against endeavors of well intentioned key staff members.

    
    

11. Respondent's most recent merit review rating, dated October 21, 1982, included the following:

    
    

    The handling of matters which impact on board personnel must improve. Emphasis has been placed upon this issue in several previous evaluations, including the last two.

    
    

12. Thus, Respondent had ample notice of his expected performance and the opportunity to correct his deficiencies. In addition to the above notices and meetings, Petitioner's efforts to upgrade Respondent's performance included his attendance at several management training seminars. After concluding that Respondent would have to be replaced, Petitioner considered demoting rather than discharging him. However, no suitable position was available.

    
    

13. Petitioner's Corrective Action Policy (Respondent's Exhibit One, in evidence) sets forth expected standards of performance for all District personnel. Respondent is familiar with these standards, both as a supervisor and as an employee of Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

14. Sections 373.079 and 373.083, Florida Statutes (1981), set forth powers and duties of Petitioner's governing board. Subsection 373.079(4) provides:

    
    

    The governing board of the district is authorized to employ an executive director and such engineers, other professional persons, and other personnel and assistants as the board may deem necessary and under such terms and conditions as it may determine, and to terminate such employment.

15. Section 373.083. provides in part:

    
    

    In addition to other powers and duties allowed it by law, the governing board is authorized to:

    1. [A]ppoint and remove agents and employees, including specialists and consultants.

       
       

16. Unlike permanent employees of the State of Florida, water management district employees are not entitled to appeal dismissal to the Career Service Commission. Because their substantial interests may be affected by the proposed agency action, however, a discharged water management district employee is entitled to a fact finding hearing pursuant to Section 120.57(1), Florida Statutes. Webster v. South Florida Water Management District, 367 So.2d 734 (Fla 4th DCA 1979).

    
    

17. Petitioner's Corrective Action Policy was held to be an unpromulgated rule by final order of the Division of Administrative Hearings. 1/ This order is currently on appeal. However, the Corrective Action Policy is a statement of Petitioner's personnel policy which by its own terms "shall apply to all District employees."

    
    

18. Petitioner's Corrective Action Policy addresses difficulties in three general areas: conduct, personal problems and performance. The conduct section establishes various categories of offenses which may result in disciplinary action including discharge. Respondent had only one such offense (nepotism) and this was not sufficiently serious to warrant discharge under the disciplinary provisions of the Corrective Action Policy. Respondent had no documented problems of a personal nature regarding his employment.

    
    

19. The third section, under the caption "Performance Problems," provides in pertinent part:

    
    

    1. When unsatisfactory performance is the result of lack of skills, knowledge or abilities needed to meet the performance standard, the supervisor shall:

       1. Document the specific problem.

       2. Meet with the employee to identify the problem and discuss and plan a solution.

       3. Document expected performance standards and planned solutions, with a copy to the employee.

          Solutions which may be considered are as follows:

          1. Additional training, education or supervision as appropriate.

          2. Reassignment of responsibilities, if available.

          3. Transfer to a more appropriate assignment, if available.

          4. Demotion.

          5. Discharge.

    2. Reasonable efforts shall be made to resolve performance problems through training, reassignment, transfer or demotion before discharge is considered.

    3. One or more follow-up meetings shall be scheduled to determine if the solution is effective and to plan additional action if necessary.

    4. Improved performance or additional corrective actions shall be documented with a copy to the employee. . .

    
    

20. Respondent was unable or unwilling to conform his management style to that required by Petitioner, and this fact is well documented over a period of five years. Although Petitioner did not give Respondent an unsatisfactory merit review rating, performance standards and Respondent's failure to meet those standards were noted with specificity on several occasions. Respondent was also warned that his failure to improve could lead to discharge. Although Petitioner considered demotion rather than discharge, there were no openings in positions for which Respondent was qualified. Therefore, the decision to discharge Respondent was justified.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Petitioner enter a Final Order discharging Respondent.

DONE and ENTERED this 23rd day of September, 1983, in Tallahassee, Florida.

R. T. CARPENTER, 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 23rd day of September, 1983.

ENDNOTE

1/ Frank A. Caluwe, Jr. v. South Florida Water Management District, DOAH Case No. 83-123R.

COPIES FURNISHED:

Stanley J. Niego, Esquire South Florida Water Management

District

Post Office Box V

West Palm Beach, Florida 33402-4238

Raymond A. Rea, Esquire Post Office Box 251

Boynton Beach, Florida 33425

John R. Maloy, Executive Director South Florida Water Management

District

Post Office Box V

West Palm Beach, Florida 33402-4238

Docket for Case No: 83-001526

Orders for Case No: 83-001526