STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRUMAN C. GOODEN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2129

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on May 14, 1991, at Clearwater, Florida.

APPEARANCES

For Petitioner: Truman Gooden, pro se

1144 Engman Street

Clearwater, FL 33615

For Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, FL 34618-4748

STATEMENT OF THE ISSUES

Whether Petitioner was wrongfully dismissed from his employment with the City of Clearwater.

PRELIMINARY STATEMENT

By letter dated January 22, 1990 (but received by the City of Clearwater January 23, 1991), Truman C. Gooden requested an administrative hearing to challenge his dismissal as a truck driver for the City of Clearwater following an incident involving Gooden and his truck on December 5, 1990. By Termination And Dismissal Notice dated January 14, 1991, the City Manager, City of Clearwater, dismissed Gooden as an employee of the City on allegations Gooden is incompetent or inefficient in the performance of his duties as a truck driver and was careless or negligent in the care of city property. The specification alleging the operative facts of incompetence and/or negligence is that on December 5, 1990, Gooden drove a city vehicle too close to the water's edge in the performance of his duties, and the sand shifted and the vehicle slid into the water. For this alleged infraction, Gooden was assessed 20 disciplinary points which, when added to his 60 disciplinary points accumulated within the prior two years, resulted in an accumulated total points of 80.

Although Gooden is listed as Petitioner, this case proceeded as if the City is Petitioner and Gooden is Respondent. The city first presented its case, and

Gooden presented his defense. The burden of proof was placed on the City to prove the allegations.

At the hearing, the city called seven witnesses, Gooden testified in his own behalf, and 24 exhibits were admitted into evidence. Proposed findings submitted by the City are accepted. Those not included herein were deemed unnecessary to the conclusions reached.

FINDINGS OF FACT

1. On December 5, 1990, Truman Gooden was employed by the City of Clearwater as a truck driver and was assigned to pick up trash at Sand Key in Pinellas County.

   
   

2. While driving the truck assigned to him on the beach below the high water line, the truck started to slide in loose sand, Gooden attempted to back and turn the truck away from the water, but was unsuccessful, and the truck slid into the water with the engine running.

   
   

3. By the time Gooden extricated himself from the vehicle, the entire hood was under water (Exhibit X), the cab was full of water, and the engine was ruined. The total damage to the truck was approximately $22,000.

   
   

4. Gooden reported the incident to his superior, and the vehicle was subsequently removed from the water by two tow trucks.

   
   

5. Gooden testified that he had driven the truck in the same manner for several years performing the same tasks and had never encountered such a problem before.

   
   

6. The tide was extremely low on December 5, 1990, and Gooden was driving the truck on the sand further seaward from the high water mark than normal.

   
   

7. To perform the task, it was unnecessary for Gooden to drive very far seaward of the high water line, and Gooden's negligence in this regard was the proximate cause of the truck sliding into the water and becoming ruined.

   
   

8. For this negligence, Gooden was assigned 20 disciplinary points.

   
   

9. During the preceding two years prior to this incident, Gooden had received the following disciplinary actions for the following offenses:

April 4, 1989 - letter of reprimand: carelessness, vehicle accident

June 20, 1989 - 4 days suspension: productivity

not up to standards

60 disciplinary points and was given 20 disciplinary points for this incident.

1. By letter dated January 27, 1989, Gooden was advised that he had accumulated 60 points since September 23, 1988, and any further disciplinary action within a 2-year time frame may be grounds for dismissal.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

3. In an action to discipline a civil service employee, the City has the burden of proving the allegations by a preponderance of the evidence.

   
   

4. Rule 14, Section 1, Paragraphs (b) and (c), of the Clearwater Civil Service Rules and Regulations, establishes, inter alia, the following causes for suspension, demotion and dismissal of an employee:

   
   

   1. Is incompetent or inefficient in the performance of the duties of his position (specific instances to be charged).

      
      

   2. Has been careless or negligent in the care of property of the city, or has knowingly permitted, condoned, and/or participated in the unauthorized use thereof.

5. By driving the truck too close to the water's edge, Gooden violated these provisions.

   
   

6. Incompetence, inefficiency, carelessness and negligence are Level III offences in the City of Clearwater's Guidelines For Disciplinary Action (Exhibit 3). For the commission of Level III offenses, the disciplinary guidelines provided for the assessment of 20 points.

   
   

7. These Disciplinary Guidelines further provide that any employee who is assessed disciplinary action totaling the equivalent of 60 points within any 24 consecutive month period is subject to dismissal.

   
   

8. Prior to the December 5, 1990 incident, Gooden had been reminded of his accumulated disciplinary points.

   
   

9. From the foregoing, it is concluded that the action of the City Manager of the City of Clearwater in dismissing Truman Gooden from his position as truck driver for the city was based on the accumulated disciplinary points accrued during the proceeding 24 month period and in all respects complies with the City of Clearwater Civil Services Rules and Guidelines for Disciplinary Action.

RECOMMENDATION

It is recommended that a Final Order be entered sustaining the action of the City Manager in dismissing Truman Gooden from his position as truck driver for the City of Clearwater.

ENTERED this 3rd day of June, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1991.

COPIES FURNISHED TO:

TRUMAN GOODEN

1144 ENGMAN STREET

CLEARWATER, FL 33615

CYNDI GOUDEAU, CLERK CITY OF CLEARWATER POST OFFICE BOX 4748

CLEARWATER, FL 34618-4748

MILES A. LANCE, ESQUIRE POST OFFICE BOX 4748 CLEARWATER, FL 34618-4748

Docket for Case No: 91-002129

Orders for Case No: 91-002129