STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3806

)

DONALD C. GEECK, )

)

Respondent. )

)

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 January 26, 1984, at Clearwater, Florida.

APPEARANCES

For Petitioner: Frank Kowalski, Esquire

Post Office Box 4748 Clearwater, Florida 33518

For Respondent: Steven R. Greenberg, Esquire

227 South Garden Avenue Clearwater, Florida 33516

By letter dated December 6, 1983, Donald C. Geeck, Respondent, appeals his termination from employment by the City of Clearwater, Petitioner. Termination and dismissal notice dated November 14, 1983, advised Respondent that he was dismissed as a result of violation of Rule 14, Section 1(r) of the Civil Service Rules of Clearwater in that he failed to comply with, or violated the provision of, Section 2 of Rule 13 relative to sick leave.

At the hearing Petitioner called three witnesses; Respondent called five witnesses, including Respondent and the witness called by Petitioner; and 11 exhibits were admitted into evidence. The operative facts in this case are largely undisputed.

Proposed findings submitted by the parties to the extent they are included herein are adopted; otherwise, they are rejected as unsupported by the evidence, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. Donald C. Geeck was employed the City of Clearwater Utilities Department as a Customer Service Supervisor on September 26, 1983, and had been so employed since October, 1981. Prior thereto he was employed by the Clearwater Police Department.

2. On September 26, 1983, around 8:00 a.m. Geeck called the Utilities office to report he had overslept and would be in shortly. His workday started around 8:30 a.m. and he would have been a few minutes late. When he had not arrived by 10:00 a.m., Tamera Denman, a Customer Service Representative supervised by Geeck, called Geeck to find out if he had gone back to sleep. Geeck answered the phone and told Denman he was not feeling well and would probably not be in. Around 12:15 p.m. Geeck called the office to advise he would not be in that day (Monday) and maybe not on Tuesday, September 27, 1983.

   
   

3. Fred Lewis is Assistant Account Supervisor in the Clearwater Utilities Department and the immediate supervisor of Geeck. Lewis has been employed by the City for some 28 years. Lewis was not satisfied with Geeck's performance of duty since the latter was transferred to the Utilities Department and had counseled Geeck several times. At Geeck's annual evaluation defects in Oeeck's performance were pointed out by Lewis in a meeting of Geeck, Lewis, and Mehring, Utilities Accounts Supervisor. Lewis smelled alcohol on Geeck's breath on several occasions in the office and this, plus frequent use of sick leave, led Lewis to conclude Geeck had a drinking problem.

   
   

4. Robert Brumback is Assistant Director, Utilities Department, Clearwater, and the supervisor of Mehring. He had smelled alcohol on Geeck's breath once in the office and had cautioned Geeck that Customer Service Representatives had to be careful of their appearance, as they were in daily contact with customers.

   
   

5. When Lewis returned from lunch around 12:30 p.m., September 26, he was advised of Geeck's recent call that he would not be in that day, and maybe not the following day. Lewis was aware of the other phone calls that had been made that morning. Around 12:45 p.m. Lewis dialed Geeck's number to inquire about his condition but received no answer after waiting for the phone to ring seven times.

   
   

6. Shortly thereafter Lewis and Brumback went out on a high bill complaint and, before leaving, Lewis informed Brumback of Geeck's absence; of the phone calls during which Geeck stated he wasn't feeling well and would not come to work that day and maybe not the next day; of his phone call to Geeck's residence and no answer; of the fact that similar incidents had occurred in the past; and that he suspected Geeck's claim of sickness was spurious and the result of Geeck's drinking problem. He requested Brumback stop by the Eagle's Club, a private club frequented by Geeck, on their return to the office. Brumback agreed, and in route back to the office they pulled into the Eagle's Club parking lot where Geeck's car was seen. Brumback and Lewis went to the door but could not get in without a member's card. After a short wait a member came out and Lewis stepped into the doorway, from where he saw Geeck at the bar. Geeck also saw Lewis and came to the door. He then saw Brumback and came outside. When Geeck approached Brumback, he said words to the effect "I must be in a lot of trouble. I'm supposed to be home sick and you found me here drinking and rolling quarters." When asked if he had a drinking problem, Geeck replied "I guess I do." Brumback told Geeck to report to his office the following day. Brumback and Lewis then departed and returned to the office.

   
   

7. Geeck's version of the events of September 26 coincide with those

   above-recited; however, Geeck contends he mentioned he was not feeling well only on the phone call made to him at 10:00 a.m. by Denman. When he called in at 8:00 a.m., he intended to come to work but went back to sleep until he was awakened by Denman's phone call at 10:00 a.m. Shortly after he called Lewis' office at 12:30 p.m., he received a call from the manager of the Eagle's Club

   that he needed the checkbook and some change. Geeck is secretary of the Eagle's Club, had the checkbook and the only key to the vending machine. Geeck drove the five minutes from his home to the Eagle's Club, took checks to the manager, and opened the vending machines. When he sat at the bar to roll quarters, the bartender placed a drink in front of him. He had taken only a couple of sips when he saw Lewis at the door and came out and then saw Brumback. He definitely recalled saying I guess you caught me; I'm supposed to be home sick, or words to that effect. Geeck further testified that on the evening of September 25 (Sunday) he had called Bingo but did not feel well, left the Bingo hall early, and returned home around 8:30 p.m. No explanation was offered why, if he went to bed at 8:30 p.m., he would oversleep the following morning and go back to sleep after calling the office to advise he had overslept and would be in shortly.

   
   

8. Respondent presented evidence that Lewis was unsatisfied with Geeck's performance of duty and with his suspected drinking problem and wanted to get rid of Geeck as an employee under his direct supervision. However, the evidence was unrebutted that Brumback was the one who made the determination to, and did, recommend Respondent's dismissal. Brumback testified that when Geeck called in (or was called) and stated he was not feeling well and would not come to work on September 26, he considered Geeck to be on sick leave. When he subsequently found Geeck at the Eagle's Club working and having a drink, he concluded that Geeck had falsified the report of his sickness and thereby knowingly made a false claim or misrepresentation in order to obtain sickness benefits. Geeck was the supervisor of eight Customer Service Representatives and, as supervisor, Brumback expected Geeck to set a good example and not falsify a report. For this reason he, and he alone, recommended dismissal.

   
   

9. The policy of the Utilities Department is to consider people on sick leave when they call in to say they are sick, and filling out the paperwork to document this time is accomplished after the employee returns to work. In Geeck's situation, he had neither sick leave nor annual leave remaining to which he could charge his absence on September 26. That day would, perforce, be a day for which he could not be paid. His absence would be excusable if he was sick.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Rule 14, Section 1, of the Clearwater Civil Service relates to supervision, demotions, and dismissal and lists just cause for such disciplinary action against an employee when any employee:

    (r) Has failed to comply with or violated the provisions of Section 2(i) of Rule 13 relative to Sick Leave.

    
    

12. Section 2(h) of Rule 13 provides that sick leave shall be used only for absences which, inter alia, are due to personal illness or to physical incapacity. Section 2(i) provides that an employee absent for one of the reasons noted in Section 2(h) shall inform his immediate supervisor as early as possible on the first day of absence.

    
    

13. From the foregoing it is concluded that when Respondent was called by Ms. Denman at 10:80 a.m. on September 26, 1983, and he told her he was not feeling well and subsequently advised the office that he would not come to work that day, Respondent reasonably expected his absence to be excused by reason of

    sickness despite the lack of accumulated sick leave to his credit. It is also clear that Respondent was not sick and misrepresented to his coworkers that he gas sick and thereby abused the privilege of sick leave.

    
    

14. City of Clearwater Guidelines for Disciplinary Action (Exhibit 2) authorizes the punishment of dismissal for the first offense of:

    
    

    Knowingly making false claims or mis- representations in an attempt to obtain sickness or accident benefits worker's compensation or unemployment benefits.

    
    

15. By informing his coworkers that he was not feeling well and would not be in, when he was not sick, Respondent violated that provision and dismissal is authorized. It is there fore

RECOMMENDED that the action of the Clearwater City Manager in dismissing Donald Geeck from his position as Customer Service Supervisor in the Utilities Department be approved and this appeal dismissed.

ENTERED this 14th day of February, 1984, at Tallahassee, Florida.

COPIES FURNISHED:

Frank Kowalski, Esquire Post Office Box 4748 Clearwater, Florida 33518

Steven R. Greenberg, Esquire

227 South Garden Avenue Clearwater, Florida 33516

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 32513

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 14th day of February, 1984.

Docket for Case No: 83-003806

Orders for Case No: 83-003806