JOSEPH L. SLUPSKI, )
vs. ) CASE NO. 88-2082
Respondent. )
The final hearing was held in this case in Clearwater, Florida on August 24, 1988 before Donald D. Conn, Division of Administrative Hearings. The parties were represented as follows:
Petitioner: Joseph L. Slupski, pro se
The issue in this case is whether Joseph L. Slupski, Petitioner, should be disciplined with a three-day suspension without pay by the City of Clearwater, Respondent, for the action he took as a marine attendant of throwing a token in the Sand Key Toll Plaza basket for a motorist. Petitioner testified on his own behalf and called his supervisor Robert Craft, as well as his coworkers Gary Milarck, John Lynch, and Charles McCarty. Respondent called Harbormaster William C. Held to testify. Six exhibits were introduced by Petitioner and five by Respondent. No transcript was filed and the parties waived the filing of proposed recommended orders and memoranda.
Petitioner has been employed by Respondent as a marine attendant for approximately eight years, and has never previously been disciplined. He is currently a marine attendant II, and his last employee evaluation was "satisfactory."
In his position, Petitioner attends the tolls at the Sand Key Toll Plaza. His duties include making change, selling tokens, and checking the toll baskets for any problems.
The Respondent has a written policy manual containing employee instructions for Sand Key Toll Plaza employees. In pertinent part, the instructions state:
Toll attendant personnel will insure that the correct toll is paid for each vehicle crossing the Clearwater Pass Bridge. Change will be made as requested. When a coin misses the chute and falls to the ground, the motorist will be instructed to remain
in the vehicle. If the coin is visible and can be retrieved without danger, do so
and place it in the chute. If the coin rolls beneath the vehicle, instruct the driver to pull ahead and stop while the coin is retrieved and placed in the chute. If a dropped coin is visible and can be identified as the proper toll, place a similar coin from the change fund in the chute and replace it with the dropped coin after the vehicle has passed. Any coins remaining on the street or curb area after the passage of vehicles, are to be placed in the chute. (See page 71).
* * *
NO EMPLOYEE WILL BE PERMITTED TO DEPOSIT CASH OR TOKENS IN BASKETS. MOTORISTS
ARE TO BE INSTRUCTED TO PLACE THEIR COINS OR TOKENS IN BASKETS. (See Page 78).
Because some attendants had been observed violating this instruction, the Harbormaster, William C. Held sent a memo to Robert Craft, supervisor, on May 27, 1987 stating:
IN THE FUTURE ANY TOLL ATTENDANT DEPOSITING CASH OR TOKEN FARES IN THE BASKET, IN VIOLATION OF THIS WRITTEN INSTRUCTION,
WILL BE CHARGED WITH A LEVEL FOUR OFFENSE. THE LEVEL FOUR OFFENSE CARRIES A THREE TO FIVE DAY SUSPENSION ON THE FIRST OCCURRENCE.
All marine attendants, including Petitioner, initialled this memo acknowledging they had read the memo and were familiar with this policy.
Petitioner admits he was aware of the Respondent's policy prohibiting attendants from depositing cash or tokens in the basket for motorists when, on February 16, 1988 at 7:46 a.m., he threw a token in the basket for a motorist. Harbormaster Held observed this act, and Petitioner admits he threw the token in the basket for the motorist.
The toll at the Sand Key Plaza is 50 cents, or one token. Motorists can purchase tokens in $10 increments, with 80 tokens in each $10 bag. Thus, there is a discount for using tokens, and their actual cost to the motorist is
12 1/2 cents.
The rationale for Respondent's policy was explained by Harbormaster Held and is further set forth by the Respondent's Internal Audit Manager, as follows:
. . . . This procedure was developed in order to protect the revenues of the City of Clearwater from potential theft. Due to the difference in toll rates depending on
whether tokens (12 1/2 cents) or cash
(50 cents) is used, a collector could profit and the City lose 37 1/2 cents each time a collector placed a token in the chute in place of the customer's cash. This rule also serves to protect the employee from being enticed into dishonesty or
against allegations from citizens or fellow employees of apparent dishonesty.
On the morning of February 16, 1988, Petitioner sold a female motorist a bag of tokens, and threw one token in the basket for her. He did this as a convenience for the motorist, since her window was broken and could not be opened. The motorist had opened her door at Petitioner's toll booth to purchase the tokens, but would have had to close her door, drive up to the toll basket, and reopen her door to deposit a token in the basket. The motorist was not disabled in any way. Petitioner was simply trying to assist the motorist by depositing the token for her.
On or about March 4, 1988 Petitioner was suspended for three days, without pay, and accessed 40 points due to the incident on February 16, 1988. He was charged with the Level 4 offense of "insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force." Petitioner has timely sought this appeal of this disciplinary action.
The morale of Petitioner's coworkers was not lowered by his action, but has been lowered by the disciplinary action taken against him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.65(9) Florida Statutes.
Rule 14 of the Civil Service Rules and Regulations for the City of Clearwater provides in Section 1, paragraph (k) that employees of Respondent may be disciplined if any such employee:
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.
In this case, the Respondent has the burden of proving the offense charged, and establishing that the offense constitutes grounds for disciplinary action under Rule 14. Baling v. Dept. of Health & Rehabilitative Services, 348 So.2d 349
(Fla. 1st DCA 1977) Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976).
The Respondent has met its burden in this case. The evidence establishes that Petitioner's actions on the morning of February 16, 1988, were in violation of the written policy manual containing instructions for toll plaza employees. It is also clear that Petitioner was aware of the specific provisions of those instructions which prohibited attendants from depositing tokens in the toll baskets for motorists, and was also aware of the possible penalty for such violation. Nevertheless, he acted contrary to this lawful and reasonable regulation, and thereby acted in a manner constituting insubordination or a serious breach of discipline, since his action was in blatant disregard of a regulation which is reasonably designed to protect the City of Clearwater from potential injury through financial loss from theft.
Based upon the foregoing, it is recommended that Petitioner's appeal be DISMISSED, and a Final Order be issued by Respondent confirming the disciplinary action of a suspension for three days, without pay, and the assessment of 40 points.
DONE and ENTERED this 12th day of September, 1988 in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1988.
Joseph L. Slupski
Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 34618
