STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0236

)

WILLIAM C. WIDNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 2 and April 30, 1986, in Clearwater, Florida. The issue for determination in this proceeding is whether respondent was properly suspended without pay for 11.2 hours for violations of the Civil Service Rules and Regulations and the Guidelines for Disciplinary Action.

APPEARANCES

For Petitioner: Miles A. Lance

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33518-4748

For Respondent: Stuart M. Rosenblum, P.A.

220 South Garden Avenue Clearwater, Florida 33516

INTRODUCTION

By Notice of Suspension, respondent William C. Widner was notified that he was being suspended without pay for a period of 11.2 hours commencing on October 25, 1985, for violations of the Civil Service Rules and Regulations and the Guidelines for Disciplinary Action. Specifically, respondent was charged with the following three violations:

1. is incompetent or inefficient in the performance of the duties of his position;

2. productivity, workmanship or efficiency not up to required standards of performance, and

3. mistake(s) due to carelessness which affect the safety or person of City personnel or the public, equipment, tools or property.

In support of the charges against the respondent, the petitioner presented the testimony of Assistant Fire Chief Clarence Meyer, Detective Michael McGowan, Captain Richard Paul Evans and Janice D. Xing. Petitioner's Exhibits A-F, H-M, O-R and S-U were received into evidence.

The respondent testified in his own behalf, and also presented the testimony of Lieutenant George Handura, Jr. Respondent's Exhibits 1 and 2 were received into evidence.

Subsequent to the hearing, the parties submitted proposed findings of fact and proposed conclusions of law. The proposed factual findings have been fully considered and are accepted and/or incorporated herein, except as noted in the Appendix.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Respondent William C. Widner has been with the City of Clearwater Fire Department for 21 years. For the past ten years, he has been assigned to Engine

   48 as a fire lieutenant. His record is free from any type of disciplinary action.

   
   

2. When a call is received concerning a medical emergency, it is proper to dispatch both a rescue unit and a fire engine to the scene. The standard operating procedure for emergency calls for fire vehicles is that the time to clear the station should not exceed 45 seconds. If there are questions concerning the dispatch, the officer in charge is to contact the dispatcher while in route to the scene of the emergency and make inquiry at that time. Also, a lieutenant, by himself, cannot change, modify or refuse to respond to a dispatch. Only a captain or the dispatcher can change the required response, or, another unit can announce that they are closer to the scene and will respond. The average response time between dispatch and arrival at the scene is four minutes. When a dispatch is given, a grid number for the destination is announced. All fire engines are equipped with map books demonstrating the location of the scene in relationship to the grid number given.

   
   

3. On August 5, 1985, at approximately 2050 hours, the Clearwater Police Department Communications Center received an emergency call reporting a subject having a heart attack at 2720 Morningside Drive. Safety Harbor Rescue 52 and an ambulance were dispatched by telephone. At approximately 2055 hours, Engine 48 was radio dispatched to 2720 Morningside Drive. Respondent advised by radio that Engine 48 was responding to the call. Approximately 22 seconds after receiving the dispatch and 14 seconds after initially responding to the dispatch, respondent Widner telephoned the dispatcher and advised him that 2720 Morningside Drive was Engine 49's territory. Respondent did offer to go, however. The dispatcher stated that "this was a screwed up mess," but advised respondent that the computer recommended Engine 48. Respondent replied that he should go if Engine 49 was out. After further conversation, the dispatcher stated, "it made sense to me that 49 would go but it said 48." When respondent inquired as to who was to go, the dispatcher said "Oh hell, I might as well page somebody else." This conversation between the respondent and the dispatcher lasted 43 seconds and concluded 1 minute, 9 seconds from the end of the original dispatch. The dispatcher then radio-dispatched Engine 49 to 2720 Morningside Drive. Engine 49 advised that it was responding at approximately 2057 hours, 38 seconds, or two minutes, 22 seconds after the original dispatch was given to Engine 48.

   
   

4. After speaking with the dispatcher, respondent and his superior officer, Captain Evans, checked the map for the 2720 Morningside Drive address.

   Upon learning that that address was, indeed, within Engine 48's territory, respondent and his crew immediately got in the truck and left the station. Captain Evans notified the dispatcher at 2059 hours that Engine 48 was responding to the call.

   
   

5. When respondent arrived at the scene, Engine 49 and the rescue unit were already there. He attempted to radio in his arrival as soon as he got there, but the air waves were busy. He announced his arrival on his portable unit as he was walking up to the house. The evidence does not conclusively establish the exact time that respondent's arrival on the scene was reported to the dispatcher. Engine 49 did report its arrival before Engine 48's arrival was reported. Based upon the totality of the evidence, it is found that between 7 1/2 and 8 1/4 minutes elapsed between the time of the original dispatch to Engine 48 and the time of Engine 48's arrival at the scene.

   
   

6. There are two Morningside Drives in the City of Clearwater. The residence located at 2720 Morningside Drive is within Engine 48's response zone, and is located 2.1 miles from Engine 48 and 3.0 miles from Engine 49. The other Morningside Drive is located in Morningside Estates and is within the response zone of Engine 49. When respondent first received the dispatch, he thought the address was located within the Morningside Estates subdivision. Upon leaving the station, an immediate right or left turn is required, dependent upon which Morningside Drive is being sought.

   
   

7. Respondent's Captain Evans immediately conducted a fact finding session upon respondent's return to the station, and determined that respondent had failed to follow a direct order. A follow-up interview was conducted. It was determined that, upon receiving the initial dispatch, respondent should have proceeded directly to the engine and looked at the grid map, should have cleared the station within 45 seconds in accordance with standard operating procedures, should have reached the scene within 4 to 4.5 minutes and that, due to respondent's phone conversation with the dispatcher, two fire engines were sent on a call that required only one engine. Based upon those findings, the Fire Department concluded that respondent's productivity, workmanship, and efficiency with regard to the emergency response were not up to required standards for performance, and a two-day suspension was requested.

   
   

8. The request for a two-day suspension was referred to the Affirmative Action Office, which conducts a fairness review of proposed disciplinary action and makes a recommendation to the City Manager, who takes final disciplinary action. After interviewing respondent concerning the August 5th incident, the Affirmative Action Office initially concluded that a two-day suspension was very harsh under the circumstances and recommended a letter of reprimand instead. Thereafter, Assistant Fire Chief Meyer contacted the Affirmative Action Office and provided the investigator with further information. The investigator was informed by Assistant Chief Meyer that respondent had been at that station for

   10 years and should have been familiar with the addresses within his territory. He further advised her that the computer system utilized to determine which station should receive a particular call had been in effect for two years and discrepancies had been corrected. Meyer informed the investigator that lieutenants had been instructed not to argue with the dispatcher, to immediately respond to a call and that the proper response time in this instance should have been 4 minutes. This information from Meyer caused the Affirmative Action Office to amend its recommendation for disciplinary action to a suspension for

   11.2 hours. The City Manager followed that recommendation and gave Notice of Suspension in accordance therewith. The Notice listed the three charges referenced in the Introduction as grounds for the disciplinary action taken, and established the date and time for the suspension to occur.

   
   

9. In a separately related incident occurring in 1983, Lieutenant Handura with the City of Clearwater Fire Department received a letter of reprimand for not responding to a dispatch. In that incident, Handura was dispatched but, because he had a tour group of school children at his station and knew that a rescue unit had also been dispatched, he called the rescue unit and determined that he was not needed. He thereupon called the dispatcher and advised him that the rescue unit was responding to the call and that he would not respond.

   
   

   CONCLUSIONS OF LAW

   
   

10. The respondent challenges the charges and disciplinary action taken against him on both substantive and procedural grounds. The burden of proof in this proceeding is upon the City of Clearwater to establish just cause for the charges against the respondent and to demonstrate that the disciplinary action taken was within the Guidelines established by the City. The petitioner has met both burdens in this proceeding.

    
    

11. The evidence demonstrates that the respondent failed to comply with the standard operating procedures of the Clearwater Fire Department with regard to the initial dispatch of Engine 48 to 2720 Morningside Drive. If respondent had a question concerning the propriety of the dispatch, the proper course to have followed would be to proceed to his vehicle, consult the grid map and then contact the dispatcher while in route to the scene. Instead of immediately going to his vehicle to respond to the emergency call, he telephoned the dispatcher and engaged in a debate as to the proper station to be called. Had he followed standard procedure--immediately boarding his vehicle and consulting the map to correlate the grid numbers given--he would have discovered that the scene was within his response zone, gotten there in a shorter period of time and prevented another fire engine from responding to a call outside its territory. While the existence of two Morningside Drives contributes to confusion, it must be noted that respondent had been assigned to Engine 48 for a period of ten years and should be thoroughly familiar with the addresses within its territory. Once respondent discovered his mistake, he promptly responded to the call. However, his failure to follow established procedures led to a delay in response time and the use of an unnecessary second fire engine, both of which could have produced consequences serious in nature.

    
    

12. The evidence demonstrates that respondent's actions with regard to this incident constitute a Level 3 offense within the City's Guidelines for Disciplinary Action. For the first occurrence of a Level 3 offense, a one to two day suspension is authorized. The facts regarding the Handura incident are not so similar as to dictate identical disciplinary action in respondent's case.

    
    

13. Finally, respondent argues that he was denied procedural due process in that he was unaware of the exact charges against him, was not present when Assistant Chief Meyer spoke with the Affirmative Action Office, was not given an opportunity to rebut Meyer's statements and was suspended without pay prior to a fair hearing. The evidence amply demonstrates that the respondent was immediately made aware of the fact that disciplinary action was being contemplated as a result of the August 5, 1985, incident. He was given the opportunity to speak with departmental and administrative officials prior to receiving disciplinary action. At the time of the instant hearing, he was fully

aware of the charges against him. At the hearing, the City had the burden of proof and respondent was afforded full rights of cross-examination and the opportunity to present any evidence relevant to the issues. Had the City failed to present sufficient evidence justifying the disciplinary action taken, respondent would have been entitled to recover his one day of lost salary and had all references to this incident removed from his records. Having been apprised of the charges against him and afforded a full evidentiary hearing, respondent's claim of a denial of due process is unfounded.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent's appeal be dismissed and that a Final Order be entered confirming the disciplinary action of an 11.2 hour suspension, without pay.

Respectfully submitted and entered this 30th of July 1986, in Tallahassee, Florida.

DIANE D. TREMOR

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 30th day of July 1986.

APPENDIX

(CASE NO. 86-0236)

The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below:

Petitioner

11. Partially rejected as being argumentative as opposed to a factual finding.

Respondent

3-5. While these findings are partially correct, they are an incomplete recitation of the events which transpired.

6. Rejected; See Paragraph 5 in Findings of Fact.

7 and 8. Rejected as a legal conclusion as opposed to a factual finding.

COPIES FURNISHED:

Miles A. Lance Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518-4748

Stuart M. Rosenblum, P.A.

220 South Garden Avenue Clearwater, Florida 33516

City Manager

City of Clearwater Post Office Box 4748

Clearwater, Florida 33518-4748

Civil Service Board City of Clearwater Post Office Box 4748

Clearwater, Florida 33518-4748

Docket for Case No: 86-000236

Orders for Case No: 86-000236