STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2266

)

EZEKIEL TAYLOR, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida, on June 1, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was what penalty if any, should be imposed upon Respondent for his alleged misconduct which occurred on May 7, 1988.

APPEARANCES

For Petitioner: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34618-4748

For Respondent: Ezekiel Taylor, pro se

1466 Lemon Street

Clearwater, Florida 34616 BACKGROUND INFORMATION

On March 21, 1988, the City Manager notified Respondent in writing that he had been suspended without pay for one day because he had, on March 7, 1988, violated portions of the Civil Service Rules of the City of Clearwater by an unauthorized use of a City vehicle. The suspension was effective on March 22, 1988. Thereafter, Respondent filed a Level I Grievance, the response to which, by the City, did not satisfy him, and on May 2, 1988, the matter was referred to the Division of Administrative Hearings for assignment of a Hearing Officer.

The undersigned set the matter for hearing by notice dated May 15, 1988, and the case was heard as scheduled.

At the hearing, Petitioner presented the testimony of Ream Wilson, Director of Parks and Recreation for the City of Clearwater, and introduced Petitioner's Composite Exhibit I. Respondent testified in his own behalf and presented the testimony of Wilson McGill, Jr., his immediate supervisor; and Ozell George, Park Superintendent. He also introduced Respondent's Composite Exhibit A.

No transcript was proved and neither party submitted proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the allegations involved herein, Respondent, Ezekiel Taylor was employed as a tree trimmer by the Department of Parks and Recreation, City of Clearwater.

   
   

2. By Stipulation, Respondent agreed, and it is so found, that on March 7, 1988, contra to the provisions of a policy letter dated January 11, 1985, from Ream Wilson, Director of Parks and Recreation for the City of Clearwater, dealing with the use of city vehicles, Respondent, while operating a City owned vehicle with his tree trimming crew, made an unauthorized stop at the Charter Food Store located at Gulf-to-Bay Boulevard and Duncan, at approximately 8:00 a.m.

   
   

3. According to the terms of the policy letter, with which Respondent was familiar,

   
   

   "1) Operators of City Vehicles shall not stop at convenience stores, donut shops, restaurants, etc., for food or drink while in [sic] route to their sites at the beginning of their work shift."

   
   

   The terms of this policy letter have been made a part of Rule 14(c), Civil Service Rules and Regulation of the City of Clearwater, the violation of which subjects an offender to disciplinary action.

   
   

4. Respondent admittedly stopped at a convenience store on the morning in question, as alleged, to get a cup of coffee to take with him. He was in the store a very short time. Nonetheless, his actions constituted a violation.

   
   

5. Disciplinary guidelines for the City are set out in Guidelines For Disciplinary Action, for the City, (Revisions effective 05/23/86) and are broken down into four categories, Level 1 through Level 5 in ascending order of severity . The guidelines provide that:

   
   

   "In each level and for each infraction con- sideration will be given to the severity

   of the offense, the actual potential cost or damage involved, time interval between infractions, the length and quality of service records and any other pertinent matters."

   
   

   The infraction in question was classified as a Level 3 offense. Under the terms of the Guidelines, Level 3 offenses (here item 16) calls for a "One to Two Day Suspension" for a first offense, a "Three to Five Day Suspension" for a second offense, and "Discharge" for a third offense.

   
   

6. The infraction was reported up to Mr. Wilson who evaluated the matter in light of Respondent's work record and prior disciplinary record, and who concluded a one day suspension without pay was appropriate. Mr. Wilson considered the fact that Respondent had worked for the city for 15 years and was a good worker. He also considered Respondent's four prior written disciplinary actions including:

   1. 12/30/87 - a written counselling for allowing a city-owned chain saw in his custody to be stolen,

   2. 7/10/87 - a written reprimand for sitting in a city truck, while not on break or lunch,

   3. 6/11/87 - a written reprimand for care- lessly damaging city property, and

   4. 8/21/86 - a written reprimand for care- lessly damaging city property.

      
      

      The above personnel actions were taken from the records of the Division of Parks and Recreation, not the Respondent's official personnel records with the City.

      Consequently, it cannot be determined if the prior actions were finalized properly and made a part of Respondent's official record.

      
      

7. Mr. Ream did not consider the several complimentary notes of appreciation forwarded to Respondent by his supervisor indicating calls by citizens of the city who were pleased with Respondent's work. Again, there was no indication that these notes, admitted by Respondent without objection by the City Attorney, were in Respondent's files or that Mr. Wilson had notice of them. Respondent's immediate supervisor, Mr. Gill, however, indicated Respondent is one of his best employees when it comes to doing his work. He has always been honest and his decisions are usually good. He requires no more supervision than the rest of the workers.

   
   

8. Mr. Ream's rationale for imposing the punishment he chose was that Respondent was a group leader who was expected to set the proper example for his crew, and who would have been expected to report any violations he observed. He considered Respondent's 15 years with the city and the fact he had been notified four times previously of substandard behavior. Though no suspension had ever been imposed before, if one had been imposed, this time the action would have been more severe.

   
   

9. Respondent was not treated any more drastically than any other city employee guilty of a Level 3 offense. The city looks at this as an unauthorized additional break which, as a matter of community relations, must be curtailed. Though Respondent raised some inference of lesser action being the rule in other city departments, no evidence of such was forthcoming and in any case, so long as the action taken in this case was within the limits authorized, was justified, and was not an abuse of agency action, evidence of other actions in other departments would be irrelevant.

   
   

10. The guidelines described above are not mandatory actions but merely suggested actions, and the city officials have consistently tried to stick with them to avoid the unfair application of punishment. That they have been successful is established by the testimony of Mr. George, who, in his many years with the city, cannot recall anyone ever receiving less punishment for the offense.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Under the provisions of the City of Clearwater's Guidelines For Disciplinary Action, pertinent here, Mr. Taylor's conduct in stopping at the store, while driving a city vehicle while on duty and not in the case of an

    emergency or while on break, constitutes a Level 3 infraction. Under the guidelines, since this was Mr. Taylor's fourth infraction and the second involving the unauthorized use of a city vehicle, Mr. Taylor could have been discharged from employment with the city. Since there was no showing that the prior disciplinary action had been properly finalized, however, the imposition of the offense prescribed for a first-time offense was appropriate.

    
    

13. Officials chose not to discharge Respondent based, among other reasons, on his otherwise good service. In making the election to impose a one day suspension, Mr. Taylor's supervisors' decision, within lawful limits as it was, was lawful and not an abuse of supervisory discretion.

    
    

14. Mr. Taylor's claims that the action taken was too severe are without merit. Even though not what he might have done were he in a position of supervision, absent a showing of unlawfulness, or an arbitrary and capricious supervisory action, the judgment of the supervisor should not be overturned.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

Recommended that

The one day suspension without pay imposed by the City of Clearwater on Respondent Ezekiel, be sustained.

RECOMMENDED in Tallahassee, Florida, this 5th day of July, 1988.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1988.

COPIES FURNISHED:

Miles A. Lance, Esquire City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Ezekiel Taylor 1466 Lemon Street

Clearwater, Florida 34616

Docket for Case No: 88-002266

Orders for Case No: 88-002266