STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) Case No. 85-3822

)

CHRISTOPHER KINGSLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard on December 11, 1985 in Clearwater, Florida before Donald D. Conn, a duly-designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:

APPEARANCES

For Petitioner: Miles Lance, Esquire

Assistant City Attorney Post Office Box 4748 Clearwater; Florida 33518

For Respondent: Stuart M. Rosenblum, Esquire

220 South Garden Avenue Clearwater, Florida 33516

At the hearing the City of Clearwater, Petitioner, called six (6) witnesses to testify, and Christopher Kingsley, Respondent, called three (3) witnesses in addition to testifying on his own behalf. The parties jointly introduced one composite exhibit consisting of eight (8) separate documents. Following the conclusion of Petitioner's case in chief, Respondent moved for a directed verdict which is hereby denied. A transcript of the hearing was filed on January 2, 1986. The parties were allowed to submit proposed findings of fact, and a ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed as a fire inspector by the City of Clearwater with permanent status

   in the civil service system. Respondent has approximately nine years experience with the City of Clearwater as a fire inspector, and prior to this incident had never been the subject of disciplinary action.

   
   

2. As a permanent civil service employee, Ordinance 1831 of the City of Clearwater, Guidelines of Disciplinary Action dated October 23, 1978, and Civil Service Rule 14 dealing with Suspensions, Demotions and Dismissals are applicable to the facts of this case and govern disciplinary action taken against Respondent.

   
   

3. On September 17, 1985, Respondent was suspended for three (3) working days, without pay, and given forty (40) disciplinary points. In the Notice of Suspension the grounds for this action are stated as follows:

   
   

   Inspector Christopher Kingsley violated Rule 14, Section 1, Paragraph (k) of the Civil Service Rules and Regulations: "Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public.

   
   

   * * *

   
   

   On June 15, Captain Yaudes dispatched Inspector Kingsley to 1468 Belleair Road to observe and assist Inspector Mattheus with the fire investigation. When Inspector Kingsley arrived at the fire scene he more or less worked independently. He did not provide the assistance or opinion to Inspector Mattheus when requested. This is further violation of the Guidelines for Disciplinary Action, Level 4, #3 offense: "Insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force."

   
   

4. Based upon the testimony and documentary evidence presented, the following findings of fact are made about

   Respondent's actions relative to the fire at 1468 Belleair Road on June 15, 1985:

   
   

   1. Between approximately 7:30 a.m. and 7:40

      a.m. on June 15, 1985 Respondent arrived at work, although his shift did not begin until 8:00 a.m. When Respondent arrived, Captain Gordan Yaudes was talking with Captain Coleman about a radio transmission they had just overheard indicating that Inspector Harry Mattheus had been dispatched to investigate the Belleair Road fire.

      
      

   2. Since neither Captain Yaudes or Captain Coleman knew Inspector Mattheus, Captain Yaudes called Respondent into the office to see if Respondent knew anything about Mattheus' qualifications or background. Although Respondent and Mattheus had been working out of the same office for two months at the time, Respondent had only a brief acquaintance with Mattheus. They had never been introduced after Mattheus had been hired, their shifts and assignments were different and Mattheus had not yet done a fire scene investigation in the City of Clearwater. Therefore, Respondent told Captain Yaudes he did not know about Mattheus' qualifications.

      
      

   3. Captain Yaudes ordered Respondent to go to the Belleair fire scene, find out what was going on, and assist Inspector Mattheus, if necessary. Captain Yaudes testified that he wanted Respondent to take command of the investigation if Respondent determined that Mattheus was not properly certified. He specifically denied that he ordered Respondent to do a joint investigation with Mattheus. This order was given prior to 8:00 a.m., and thus prior to either Respondent or Captain Yaudes being on duty. Captain Coleman, who was on duty at the time, concurred in the order.

      
      

   4. Mattheus had been on the scene for thirty minutes before Respondent arrived. When Respondent arrived he put on protective pants, boots and gloves and entered the premises, a small flower shop. The fire had

      already been extinguished. Fire damage was confined to a twelve foot by twelve foot area at the front of the store where the cash register had been. Mattheus was not wearing protective gear since he had not been issued any at the time, although he was wearing his own steel reinforced boots.

      
      

   5. Upon approaching Mattheus at the scene, Respondent asked why he was there and on whose authority. Mattheus indicated he had been placed on the "call list" the night before by Fire Marshal Nic Lewis, and he was responding to a call to investigate the scene he received that morning at home. In making this inquiry, Respondent was responsive to Captain Yaudes' order that he go to the scene, find out what was going on and assume command of the investigation if he determined Mattheus was not qualified.

      
      

   6. Inspector Mattheus had been employed as a life safety inspector approximately two months prior to this incident. He is a certified fire inspector and was therefore qualified to be on the "call list" and to investigate fires. This was his first investigation for the City of Clearwater.

      
      

   7. After determining what was going on at the scene and that Mattheus was qualified to do the investigation, Respondent proceeded to assist Mattheus in several ways, including: surveying and discussing the scene together examining electrical wire and sockets, as well as the floor at the scene for possible causes of the fire clearing the area where the cash register had been and suggesting initially that Mattheus keep an aerosol can that had been punctured by a nail as possible evidence. Later, when arson was ruled out, he concurred in Mattheus' decision to discard the can. Respondent also helped clean up the scene since he was wearing protective clothing and Mattheus was not, and discussed an early morning thunderstorm with Mattheus as a possible cause of the fire. In this manner Respondent was responsive to Captain Yaudes' order that he render assistance, if necessary.

   8. On several occasions during the approximately thirty minutes when Respondent was at the fire scene, Inspector Mattheus asked him his opinion on the cause of the fire. Respondent responded by saying he did not know, or by shrugging his shoulders. He told Mattheus to list the cause as "unknown" if Mattheus could not determine a cause. Respondent also said to Mattheus on several occasions, "This is your fire." When Mattheus asked if Respondent was going to write a report on this fire, Respondent replied in the negative since this was Mattheus' fire.

      
      

5. It is standard operating procedure for the first inspector on the scene to be the primary investigator who writes the report, and for other inspectors to assist the primary investigator. Mattheus was the primary investigator in this fire, and was in charge of the investigation.

   
   

6. The terminology, "It's your fire," is commonly understood among firefighters and inspectors to mean that "you are in charge and will write the report." Respondent's use of this phrase in responding to Mattheus was therefore accurate and in recognition of standard operating procedures, and does not indicate any lack of cooperation on his part.

   
   

7. Respondent was not ordered to conduct a "joint investigation," according to Captain Yaudes. When the term "joint investigation" is used, it is understood by firefighters and inspectors to mean an investigation which involves another agency, such as the State Fire Marshal's Office or the Electrical Department, in which the other department assists the Fire Department in trying to determine the cause of a fire.

   
   

8. On June 14, 1985, the day prior to the Belleair fire, Respondent had called Inspector Jeff Daniels and expressed concern that life safety inspectors would be used to investigate fires since he felt they were not qualified. He also expressed concern about Inspector Mattheus' qualifications. Despite this prior expression of concern, when Respondent was ordered to the fire scene the next day, he did determine that Mattheus was qualified and assisted him as ordered. The testimony of Lieutenant Frank Hill and Firefighters John Milano and Charles Daniels, who were all at the scene on June 15, 1985, specifically confirms that Respondent and Mattheus worked together on the investigation without discord.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case. Section 120.57(1), Florida Statutes, and City of Clearwater Ordinance 1831.

   
   

10. Rule 14 of the Civil Service Rules and Regulations provides in Section (1), paragraph (k) that the violation of, or failure to obey, any lawful and reasonable regulation or order given by a superior officer is "just cause" for disciplinary action when it amounts to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale, or in loss, inconvenience or injury to the City or the public. Respondent was charged on September 17, 1985, with violating this provision of Rule 14.

    
    

11. In this case, Petitioner has the burden of proving the offense charged. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977) Fitzpatrick v. City of Miami Beach, 328 So. 2d 578 (Fla. 3rd DCA 1976). Petitioner has failed to establish that Respondent violated or failed to obey Captain Yaudes' order on June 15, 1985. The evidence does show that Respondent was responsive to Captain Yaudes' order, and that he did find out what was going on at the fire scene and assist Inspector Mattheus as necessary. Thus, he did perform the work assigned and complied fully with his supervisor's verbal order.

    
    

12. Further, there was no evidence from which an inference could be drawn that lower morale, loss or inconvenience to the City or public could reasonably be expected to result from Respondent's actions. Such an inference is a precondition for a finding of insubordination or a serious breach of discipline according to the terms of Rule 14. Without such a finding there can be no determination of "just cause" which would warrant disciplinary action against Respondent.

RECOMMENDATION

Based upon the foregoing, it is recommended that the disciplinary charge against Respondent be dismissed, and that Respondent receive three days back-pay and the removal of all disciplinary points in his record arising from this charge.

DONE and ENTERED this 27th day of January, 1986, at Tallahassee, Florida.

DONALD D. CONN, 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 27th day of January, 1986.

COPIES FURNISHED:

Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

Stuart M. Rosenblum, Esquire,

220 South Garden Avenue.C3 Clearwater, Florida 33516

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in part in Finding of Fact 4(c) and rejected in part in Finding of Fact 4(g).

2. Adopted in Finding of Fact 4(a).

3. Adopted in Finding of Fact 4(f).

4-6 Adopted in part in Finding of Fact 8, but otherwise rejected as irrelevant, unnecessary and not based on competent substantial evidence.

1. Rejected in Finding of Fact 4.

2. Adopted in Findings of Fact 4(h) and 6.

3. Rejected in Finding of Fact 4(g).

10,11 Adopted in part in Finding of Fact 4(h), but otherwise rejected as irrelevant.

1. Adopted in Finding of Fact 4(i).

2. Rejected in Finding of Fact 4. Respondent did cooperate and assist as necessary.

3. Adopted in Finding of Fact 4(h) and 6, but otherwise rejected as erroneously stating Respondent failed to aid Inspector Mattheus.

15,16 Rejected as simply a summation of testimony rather than a proposed finding of fact.

17 Adopted in part in Finding of Fact 4(e), but otherwise rejected as irrelevant and unnecessary.

18,19 Rejected as irrelevant and unnecessary.

1. Adopted in part in Finding of Fact 8 but otherwise rejected as irrelevant and unnecessary.

2. Rejected as irrelevant and unnecessary.

Rulings on Respondent's Proposed Findings of Fact, as contained in Sections A and B of Respondent's Memorandum, Proposed Findings and Conclusions of Law:

1. Adopted in part in Finding of Fact 4 but otherwise rejected as irrelevant and unnecessary.

2. Rejected as irrelevant and unnecessary.

3. Adopted in Finding of Fact 3.

4,5 Rejected as irrelevant and unnecessary.

1. Adopted in part in Findings of Fact 1 and 2.

2. Rejected as irrelevant and unnecessary. 8-12 Adopted in Findings of Fact 4(a)-(e).

1. Adopted in part in Finding of Fact 4(g), but otherwise rejected as unnecessary and cumulative.

2. Adopted in Findings of Fact 4(h), (i).

3. Adopted in Finding of Fact 6, but otherwise rejected as irrelevant.

4. Adopted in Finding of Fact 3.

Docket for Case No: 85-003822

Orders for Case No: 85-003822