STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA BRUN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2291

)

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, on May 5, 1992, in Gainesville, Florida.

APPEARANCES

For Petitioner: Rodney W. Smith, Esquire

Post Office Box 628 Alachua, Florida 32615

For Respondent William L. Townsend, Jr., Esquire

Walton, Townsend & McLeod Post Office Box 250

Palatka, Florida 32178- 0250 STATEMENT OF THE ISSUE

The issue in this matter is whether the District wrongfully terminated the employment of Petitioner, Teresa Brun, on the grounds of insubordination.

PRELIMINARY STATEMENT

By letter dated February 15, 1991, Respondent, St. Johns River Water Management District, advised Petitioner, Teresa Brun, that it was considering dismissing Ms. Brun from her employment with the District for several violations of the District's personnel policy. Specifically, Ms. Brun was charged with insubordination, leaving her work station without authorization, conduct unbecoming a District employee and display of an uncooperative or antagonistic attitude. The letter also advised Ms. Brun of her rights to a pre-determination conference to review any relevant facts regarding the charges against her and any appropriate agency action.

On February 25, 1991, the District held a pre-determination conference at which Ms. Brun gave a statement. By letter dated February 25, 1991, the District issued a letter to Ms. Brun concluding that, based on the evidence at the pre-determination hearing, Ms. Brun should be dismissed for insubordination.

The other charges of misconduct contained in the District's letter of February 15, 1991, were not addressed in the District's action letter of February 25.

Ms. Brun disputed the action taken by the District and filed a Petition for Formal Hearing on the District's decision. Petitioner's request for hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Respondent, St. Johns Water Management District (District), offered the testimony of the following witnesses: David F. Porter, Teresa Ann Brun, Robert W. Jadwin, Ada Elizabeth Anderson and Luther Lee Payton. In addition, the District introduced nine Exhibits. Petitioner, offered the testimony of Cindy Brubaker-Gilman. Ms. Brun did not introduce any exhibits into evidence.

Petitioner and Respondent filed Proposed Recommended Orders on July 13, 1992. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, St. Johns Water Management District, is a special taxing district authorized by law to perform various water resource duties and is empowered to hire and terminate employees.

   
   

2. As an employer, the District has developed an employment policy which states in pertinent part:

   
   

   VII. ACTS OF MISCONDUCT AND WORK STANDARDS VIOLATIONS FOR DISTRICT EMPLOYEES

   
   

   The following acts of misconduct and violation of work standards will subject an employee of the District to disciplinary action:

   
   

   15. Insubordination - An employee may not willfully or deliberately refuse to comply with a direct order or any established work assignment of an immediate supervisor or higher level supervisor unless such order or assignment would result in an immediate danger to the health and safety of the employee or others.

   
   

   STANDARDS OF DISCIPLINARY ACTION

   
   

   The following standards are established to insure the District is consistent in taking disciplinary actions against employees involved in similar situations. The recommended disciplinary action is normally the penalty which should be imposed.

   However, circumstances may make a greater or lesser action more appropriate than the one suggested. Realizing that some of the

   offenses and deficiencies listed will be more serious and more frequent in certain cases, the District shall utilize good judgement in light of all available facts in each case.

   Secondary and subsequent offenses have a cumulative effect and justify greater penalties. An offense need not be similar in nature to an earlier offense in order to have such cumulative effect. The disciplinary action should be based on an

   overall evaluation of conditions and severity of the violations.

   
   

   The standard of discipline for the first occasion of insubordination is a written reprimand, suspension up to three days or dismissal. The standard for the second event of insubordination is dismissal.

   
   

3. Teresa Brun was employed by the District from July of 1988 to February 25, 1992. From April 1989 to February 25, 1992, Ms. Brun held the position of contract administrator in the water resources section of the District. As a contract administrator, she, along with four other contract administrators, oversaw various purchasing contracts for the District which the District was in the process of letting out for bid. Ms. Brun had also been assigned to work on drafting a new contracts policy manual and drafting standard forms for the new manual. Performance of clerical duties associated with the various purchasing contracts assigned her were not part of Petitioners established work assignment.

   
   

4. Ms. Brun's supervisor was Mr. Jadwin, the contract supervisor. The water resources contract section had a secretary who, during the time period relevant to this proceeding, was Betty Anderson. Ms. Anderson had limited experience in the water resources section since she had been employed in the section since October or November 1990. Ms. Anderson's function was to perform clerical duties for the section's supervisor and contract administrators, including Ms. Brun. In essence, Ms. Anderson was supposed to work with the contracts administrators and perform the secretarial functions of the office as instructed by the contracts administrators. Her duties included, among other things, working with the bid files, maintaining a list of bidder's addresses (bidders' list), and typing and preparing bid tabulation sheets. Ms. Brun as well as other contract administrators did take materials to Ms. Anderson and instruct her how to prepare various materials and bid documents required by the contracts office.

   
   

5. Ms. Anderson was a slow learner and was difficult to get along with. However, Ms. Brun felt that since Ms. Anderson had been employed for approximately three months, it was time for Ms. Anderson to learn to utilize the bid files and computer files containing bidder's addresses in order to gather the information she needed to prepare bid documents and materials without being spoon fed the information. In short, Ms. Brun legitimately expected Ms. Anderson to perform as past section secretaries had performed.

   
   

6. On Friday, January 25, 1991, Ms. Anderson received a note from Ms. Brun asking Ms. Anderson to prepare a standard "Notice of Intent" to issue a contract on a particular bid which was to go before the Board for adoption. A "Notice of Intent" includes a cover letter, bid tabulation sheet and a Notice

   of Rights. The complete package is then mailed to the bidders who expressed an interest in the bid. Ms. Brun prepared the cover letter and standard Notice of Rights and requested Ms. Anderson to mail the Notice of Intent to all the bidders. Ms. Brun informed Ms. Anderson that the bid tabulation sheet was in the bid file. Ms. Anderson wrote a note back to Ms. Brun requesting that she furnish the "pertinent information" needed to complete the assignment. Ms.

   Anderson's request for information appears to refer to the bid tabulation sheet and the addresses of interested bidders to whom the Notice of Intent should be sent. 1/

   
   

7. The note from Ms. Anderson was deposited in Ms. Brun's in-basket.

   
   

8. On Monday, January 28, Ms. Brun saw Ms. Anderson's note and responded with a note telling Ms. Anderson that the information she sought was in the bid file and she should get it herself.

   
   

9. Following the note exchange, Ms. Brun and Ms. Anderson talked over the problem of preparing the Notice of Intent and bid addresses in a meeting initiated by Ms. Anderson about problems with the addresses for this bid. Ms. Brun told Ms. Anderson to go into her contract files and secure the information. Ms. Anderson refused to go into the bid files to find the bid tabulation sheet and refused to print out an address list from her computer file. Ms. Anderson's reply was that if she had to get the information, it would not get done and that she would wait and talk to Mr. Jadwin. Ms. Anderson left the file on Ms. Brun's desk and would not, as instructed by Ms. Brun, take it with her. Ms. Anderson made her refusal in front of another contracts manager, Cindy Gilmore. Ms. Anderson's refusal to comply with the requests of Ms. Brun were only explained as "territorial concerns." However, Ms. Anderson did eventually learn that part of her job was to get information out of the bid files and to utilize the address information she maintained in her directory.

   
   

10. Following this impasse, Ms. Anderson went to Mr. Jadwin, who was the mutual supervisor of both Ms. Brun and Ms. Anderson. Mr. Jadwin agreed with Ms. Anderson's position and, told Ms. Anderson that he would talk to Ms. Brun. However, Ms. Anderson asked if she could work it out herself because she wished to develop effective working relationships with the contract administrators. Mr. Jadwin agreed and Ms. Anderson returned to Ms. Brun and asked to speak about the needed materials. Ms. Anderson informed Ms. Brun that Mr. Jadwin thought it was fair that Ms. Brun get the bid tabulation sheet out of the file and give it to Ms. Anderson. Ms. Brun still angry over Ms. Anderson's refusal to perform her secretarial duties refused to discuss the matter further and told Ms. Anderson to "just write in a memo what you will do and what you will not do."

    
    

11. Mr. Jadwin later asked Ms. Anderson how her meeting with Ms. Brun had gone. She replied things had not gone well and she was writing the memo requested by Ms. Brun. Mr. Jadwin told her not to write the memo and that he would "take care of it."

    
    

12. Ms. Anderson then got the bid file for the first time, went through it, and could not find the bid tabulation sheet. The yellow cards with the bidder's addresses as well as green cards from bidders who had submitted bids were in the file. Ms. Anderson then took the file to Mr. Jadwin and he searched for the bid tabulation sheet and could not find it.

    
    

13. The bid tabulation sheet had been removed from the bid file and had been placed in a standard information-packet to the Board. This packet was known as Board back-up. Ms. Brun was unaware that the bid tabulation sheet had

    been removed from the bid file. On the other hand, the information to recreate the bid tabulation sheet was in the file. Additionally, the bid tabulation sheet was readily findable by any thinking secretary or individual who had become familiar with office procedures.

    
    

14. On January 31, 1991, Mr. Jadwin approached Ms. Brun. 2/ This was the first time in these events that an immediate supervisor had addressed Ms. Brun on the bid tabulation sheet and address list. The meeting took place in Ms. Brun's office which was next to Ms. Anderson's desk. Ms. Anderson was seated at her desk and could hear the conversation. All the witnesses agree that Mr. Jadwin asked Ms. Brun if Ms. Anderson had typed a certain bid tabulation sheet. Ms. Brun replied affirmatively. Mr. Jadwin then informed Ms. Brun for the first time that neither he or Ms. Anderson could locate the bid tabulation sheet in the file. Mr. Jadwin asked Ms. Brun to help Ms. Anderson out and give Ms. Anderson the information to type another bid sheet. Ms. Brun said she would. Mr. Jadwin then began to broach the subject of the addresses. He said, 'About the address,' "We've had some problems with the address on that." Ms. Brun replied that she was "not the only person who makes problems with the bids."

    Mr. Jadwin started to say something else and Ms. Brun cut him short and said, "Why don't you just address everything that you need to me in a memo." Mr.

    Jadwin again began to say something else but Ms. Brun stated "Bob, I'm not going to argue with you," got up, put the bid file in the file cabinet and walked out of her office. Clearly, Ms. Brun terminated Mr. Jadwin''s conversation with her. Whether the termination was abrupt and cut short what Mr. Jadwin wanted to say, depends on the particular witnesses point of view. However, Mr. Jadwin did not object to the conversation's termination and did not ask or order Ms. Brun to stay. No instructions were given to Ms. Brun in regards to the addresses because she exited her office. However, Ms. Brun's behavior while rude and perhaps contemptuous toward Mr. Jadwin was not insubordinate conduct on her part.

    
    

15. That afternoon Ms. Brun learned for the first time that some bid packages had been returned because the party to whom they had been addressed was not located at the address to which the packages had been mailed. Ms. Brun took the returned packages to Mr. Jadwin.

    
    

16. Later that same afternoon, Ms. Brun furnished the bid tabulation sheet to Ms. Anderson. Ms. Anderson retyped the bid tabulation sheet which had caused so much trouble. After typing the bid tabulation sheet, Ms. Anderson came into Ms. Brun's office and asked where the bidder's list was. Ms. Brun told Ms. Anderson the list was in the file. Ms. Anderson replied that the list "just won't get done," and threw the bid file on Ms. Bruns desk. Ms. Brun put the file back in Ms. Anderson's work tray. Ms. Anderson said the file would "just stay there." The following day, Ms. Brun sent out a partial Notice of Intent.

    
    

17. On Friday, February 1, approximately 2 days after Mr. Jadwin's conversation with Ms. Brun, Mr. Jadwin wrote Ms. Brun a note. The note states:

    To: Teresa From: Bob

    Subject: Notice of intended award Walkways - Clay Island

    
    

    Date: 2-91

    
    

    I have asked you to supply Betty with the list of addresses to which to send the above Notice. Betty has had to re-type the Bid summary sheet that was lost from your file. 3/

    
    

    If you choose to continue to refuse this request please explain your reasons immediately to Mr. Payton.

    
    

    As of Monday, 2/4/91, your refusal has held this 'Notice' up for one week. Please do not delay in getting this done.

    
    

    Bob

    
    

    The note was placed in Ms. Brun's in-basket on February 1. However, she did not receive Mr. Jadwin's note until Monday morning, February 4.

    
    

18. Ms. Brun stated she did not give Ms. Anderson the list of addresses upon receiving the note because the note was in error about being instructed to furnish the addresses to Ms. Anderson and because her interpretation of the note was not as a directive to produce the addresses but as an option of going to Mr. Payton because she would in essence be doing Ms. Anderson's job for her. Ms. Brun decided to go to Mr. Payton. Given the inaccuracies in the note and its tenor, Ms. Brun's interpretation was reasonable under the circumstances of this case.

    
    

19. Ms. Brun printed out a copy of Ms. Anderson's directory which included the file for the bidder's list and immediately went to Mr. Payton. There is conflict in the testimony over what occurred at this meeting. Ms. Brun's version is that Mr. Payton sided with her and told her to go back to Ms. Anderson and tell her that the file was in the computer and explain the file to her. Mr. Payton denies this version, saying that he had discussed the matter during the previous week with Mr. Jadwin after the walkout and that he (Mr. Payton) then told Ms. Brun to provide the address list to her supervisor without getting upset and to go and ask Ms. Anderson what information she needed and provide that information. Except as set forth Ms. Brun's hearing testimony that Mr. Payton sided with her against her immediate supervisor is deemed not credible.

    
    

20. Ms. Brun returned from Mr. Payton's office and told Ms. Anderson that Mr. Payton had directed her (Ms. Brun) to tell Ms. Anderson what she was to do with the file for the addresses and that the address file was in the computer. Mr. Jadwin overheard the conversation with Ms. Anderson and intervened because it was not consistent with what had been previously told to him by Mr. Payton. Mr. Jadwin then directed Ms. Anderson to complete the matter as best she could and have Ms. Brun verify the addresses. The address list was finally produced and Ms. Brun did satisfactorily verify the addresses.

21. During the time Ms. Brun worked for the District, she was evaluated on an annual basis and never received any evaluation below the "above satisfactory" category. Her only prior disciplinary history was a reprimand for insubordination which she received in December, 1990. A reprimand is the least severe form of discipline at St. Johns River Water Management District.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearing has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1) (1991), Florida Statutes.

    
    

23. The policy manual of the District, Policy 80-10, in effect at the time of Teresa Brun's termination, sets forth the District's policy regarding insubordination as follows:

    
    

    15. Insubordination - An employee may not willfully or deliberately refuse to comply with a direct order or any established work assignment of an immediate supervisor or higher level supervisor unless such order or assignment would result in an immediate danger to the health and safety of the employee or others.

    
    

    The same policy goes on to set standards of disciplinary action for violation of the policy. The standard for the first occasion of insubordination is a "written" reprimand, suspension up to three days or dismissal. The standard for the second event of insubordination is dismissal.

    
    

24. In this case, the District cites three grounds for a finding of insubordination: 1) Ms. Brun's act of walking out of her office, (2) Ms. Brun's refusal to comply with Mr. Jadwins note, and (3) Ms. Brun's misrepresentation of Mr. Payton's instructions to Ms. Brun.

    
    

25. Under the facts of this case, Ms. Brun's walking out of her office was not an insubordinate act. It was rude and showed contempt for Mr. Jadwin, but such behavior is not insubordination Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). Ms. Brun did do what was asked of her during that meeting with Mr. Jadwin by supplying the bid tabulation sheet to Ms. Anderson. The first time Ms. Brun was aware a supervisor may want her to do something in regards to the address list was when she read Mr. Jadwin's note. Failure to obey a vague directive in a note is not grounds for a finding of insubordination.

    
    

26. Such orders and directives must be clear, and not subject to other interpretations, and capable of being performed by the employee. In this case, except for Mr. Payton's directive, none of the instructions were clear or unambiguous. The note is vague as well as inaccurate and reasonably subject to the interpretation of Ms. Brun as giving her the option of going to Mr. Payton. Clearly, there is nothing wrong or insubordinate about Ms. Brun attempting to get her reluctant teammate to produce an address list which she was supposed to maintain and did maintain in her computer directory. Previous secretary's had functioned in a similar manner and performed such a task. On the other hand, while Mr. Payton's instructions were clear to Ms. Brun, his instructions ignored the information Ms. Brun needed from Ms. Anderson to perform the task of

    checking and verifying the address list. In short, Ms. Brun needed a beginning list of addresses to check. Such a beginning list was maintained by Ms.

    Anderson in some computer file which was eventually produced by Ms. Anderson. Ms. Brun's attempt to obtain that list while done in a misrepresentative 4/ manner was not insubordination but an attempt to perform Mr. Payton's instructions and teach Ms. Anderson to use the tools under her control. Once the information was gained, Ms. Brun performed the task of verifying the addresses on the same day Mr. Payton gave Ms. Brun his instructions.

    
    

27. The supreme irony of this case is that Ms. Brun was fired for insubordination, while Ms. Anderson, who blatantly refused to comply with instructions, was not ever disciplined. Additionally, Ms. Brun was being asked to perform the secretary's job for her. Because of this situation, Ms. Brun understandably demonstrated an uncooperative and antagonistic attitude. However, Ms. Brun did perform her supervisor's instructions to her within a reasonable period of time. She therefore was not insubordinate and should not have been dismissed.

RECOMMENDATION

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

That a final order be entered by the Governing Board reinstating the Petitioner's employment with the District.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of September, 1992.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2 day of September, 1992.

ENDNOTES

1/ The addresses of bidders interested in a project were maintained in a computer file in a directory maintained by the secretary, Ms. Anderson.

Addresses were added to the bidder's list as calls or other contacts from potential bidders came into the office. Pertinent information was also maintained on yellow sheets or cards. The yellow sheets were kept in the bid file. Other address information, such as green cards from certified mail receipts were also kept in the bid file.

2/ Mr. Jadwin had actually met with Ms. Brun just prior to this second meeting. The earlier meeting was on another topic.

3/ The bid tabulation sheet had never been lost from Ms. Brun's file. Ms. Anderson had forgotten what she had done with it.

4/ Ms. Brun was not dismissed for dishonesty in her work or with misrepresentation in her work.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-2291

1. The facts contained in paragraphs 2, 3, 4 and 5 of Petitioner's Findings of Fact are adopted in substance, insofar as material.

   
   

2. The statements contained in paragraphs 1, 6 and 7 of Petitioner's Proposed Findings of Fact were either introductory or were legal argument.

   
   

3. The facts contained in paragraphs 1, 5, 7, 9, 10, 11, 13, 14 and 15 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

4. The facts contained in paragraphs 2, 4, 8, 12 and 16 of Respondent's Proposed Findings of Fact are subordinate.

   
   

5. The facts contained in parargraphs 3 and 6 of Respondent's Proposed Findings of Fact are adopted except asto Petitioner's supervisory authority, Ms. Anderson's new employment and custom of giving her backup information which facts were not shown by the evidence.

COPIES FURNISHED:

Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 32615

William L. Townsend, Jr., Esquire Walton, Townsend & McLeod

Post Office Box 250 Palatka, Florida 32178-0250

Wayne Flowers Executive Director Post Office Box 1429

Palatka, Florida 32178-1429

Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road Building F Suite 240

Tallahassee, Florida 32303-4113

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

================================================================= ST JOHNS RIVER WATER MANAGEMENT DISTRICT

TERESA BRUN,

Petitioner,

vs. DOAH NO. 91-2291

SJRWMD FOR 91-1056

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,

Respondent.

/

FINAL ORDER

On September 3, 1992, the Hearing Officer from the Division of Administrative Hearings submitted to the St. Johns River Water Management District ("District"), and all other parties to the above-styled proceeding, a Recommended Order, a copy of which is attached as Exhibit A. Respondent submitted exceptions to the Recommended Order and Petitioner filed responses to these exceptions. All of these pleading were timely filed and are a part of the record.

Pursuant to District Policy Numbers 81-01 and 81-10 effective July 8, 1992, copies of which are all attached as Exhibit B, the Governing Board has delegated to me, Henry Dean, as Executive Director, the authority to take final agency action in all employee disciplinary matters. This proceeding involves an employee disciplinary matter. I, therefore, have reviewed the record, considered the pleading, and make the following rulings:

RULING ON RESPONDENT'S EXCEPTIONS EXCEPTION NUMBER 1

In Exception Number 1, Respondent argues that the Hearing Officer's Finding of Fact Number 4 demonstrates the Hearing Officer's misapprehension that "Ms.

Brun had some sort of supervisory control over Ms. Anderson, and that in any

altercation or disagreement between them Ms. Brun would control under District policy as a superior." Respondent then asserts "[t]here is no competent evidence in the proceedings from which the Hearing Examiner could have charged Ms.

Anderson with a subordinate's duty to obey, as opposed to a coworker's duty to work with, Ms. Brun."

Contrary to Respondent's Exception Number 1, Finding of Fact Number 4 indicates that Ms. Anderson, as a secretary for the contracts section, was supposed to perform the secretarial work given to her by Ms. Brun and others in the contracts section. I find this interpretation to be supported by competent substantial evidence. (TR. 118) Finding of Fact Number 4 does not indicate that Ms. Brun had some supervisory authority over Ms. Anderson such that Ms. Brun could determine Ms. Anderson's pay, or whether she would be fired, or promoted. Even if Respondent's interpretation of Finding of Fact Number 4 was correct, I find it irrelevant to the crucial issue whether Ms. Brun committed insubordination against her supervisors. Therefore, I reject Respondent's Exception Number 1.

EXCEPTION NUMBER 2

In Exception Number 2, Respondent takes exception to the Hearing Officer's Conclusion of Law Number 4 that Ms. Brun's conduct of walking out of her office during a conversation with her supervisor, Mr. Jadwin, did not constitute insubordination because she left the office before he could issue an order directing her to provide Ms. Anderson with an address list. Respondent argues that Ms. Brun acknowledged that Mr. Jadwin wanted her to do something about the addresses because she stated: "Why don't you just address everything that you need to me in a memo?" Thus, Respondent essentially argues that since Ms. Brun knew Mr. Jadwin was going to order her to provide Ms. Anderson with the address list, and since Ms. Brun walked out of her office to avoid that order, Ms. Brun committed insubordination.

In light of my ruling on Exception Number 5, I reject Exception Number 2. However, I find Ms. Brun's conduct of repeatedly cutting Mr. Jadwin off during their conversation in her office, and then walking out of the office to prevent Mr. Jadwin from continuing his conversation, would constitute insubordination under District policy because Ms. Brun deliberately evaded Mr. Jadwin's forthcoming order regarding the address list by leaving the room. Refusing to even hear an order is equivalent to refusing to do it. To hold otherwise would mean that an employee could constantly refuse a superior's order by walking out on the superior whenever the superior was preparing to issue the order.

EXCEPTION NUMBER 3

In Exception Number 3, Respondent argues that the District should reverse that portion of the Hearing Officer's Conclusion of Law Number 4 which states that Ms. Brun's refusal to obey the "vague directive" in Mr. Jadwin's February 1, 1991, note is "not grounds for a finding of insubordination." In support, Respondent states that in Finding of Fact Number 14, the Hearing Officer noted that Ms. Brun told Mr. Jadwin "Why don't you just address everything you need to me in a memo?;" that Mr. Jadwin subsequently provided Ms. Brun with the February 1, memo directing her to provide the address list to Ms. Anderson; and that Ms. Brun refused to comply with the memo by not furnishing the address list to Ms.

Anderson. Respondent argues that the Hearing Officer's conclusion of law stating the February 1 memo was a "vague directive" is erroneous because the memo was issued to Ms. Brun in direct response to her request.

I agree with Exception Number 3 and reject the Hearing Officer's Conclusion of Law Number 4 to the extent it characterizes Mr. Jadwin's February 1 memo as a "vague directive." I find, as a conclusion of law, that the memo was a clear order to Ms. Brun to provide the address list, and that if she refused to comply, she was reported to Mr. Payton and to explain why.

However, in Finding of Fact Number 18 the Hearing Officer states that Ms.

Brun interpreted Mr. Jadwin's memo as giving her the option of either furnishing the address list to Ms. Anderson or reporting to Mr. Payton. The Hearing Officer then found that Ms. Brun's interpretation of the memo was "reasonable under the circumstances of this case." While I find the Hearing Officer's conclusion regarding the reasonableness of Ms. Brun's interpretation of the memo puzzling, I do find it supported by competent substantial evidence (TR. 28-32) and, thus, I am bound to uphold it. Section 120.57(1)(b)10., Fla. Stat..

Ms. Brun obeyed the memo as she understood it according to the Hearing Officer's Finding of Fact Number 18. Since the Hearing Officer found Ms. Brun's interpretation of the memo to be reasonable, I cannot conclude as a matter of law that Ms. Brun willfully refused to obey it. Because I cannot conclude that Ms. Brun willfully refused to obey the memo, I cannot conclude as a matter of law that her failure to obey the memo constituted insubordination as defined under District policy since one of the elements of insubordination is willful or deliberate refusal to comply with a direct order. Therefore, except to the extent indicated herein, I reject Respondent's Exception Number 3.

EXCEPTION NUMBER 4

In Exception Number 4, Respondent argues that the District should reverse that portion of the Hearing Officer's Conclusion of Law Number 5 which states that Ms. Brun did not commit insubordination because she complied with Mr.

Payton's order, although she did so in a misrepresentative manner. In Finding of Fact Number 19, the Hearing Officer found that Mr. Payton ordered Ms. Brun "to go and ask Ms. Anderson what information she needed and provide that information." In Finding of Fact Number 20, the Hearing Officer found that "Ms. Brun returned from Mr. Payton's office and told Ms. Anderson that Mr. Payton had directed her (Ms. Brun) to tell Ms. Anderson what she was to do with the file for the addresses and that the address file was in the computer." In this same Finding of Fact, the Hearing Officer then notes that "Mr. Jadwin overheard the conversation with Ms. Anderson and intervened because it was not consistent with what had been previously told to him by Mr. Payton."

Mr. Payton directly ordered Ms. Brun tell Ms. Anderson a particular message. Instead, Ms. Brun told Ms. Anderson something totally different. The Findings of Fact do not indicate any misunderstanding between Mr. Payton and Ms. Brun on the message Mr. Payton directed her to give to Ms. Anderson. 1/ Ms.

Brun's deliberate refusal to obey Mr. Payton's order constitutes insubordination as defined by District policy. Therefore, I accept Respondent's Exception Number 4, and reject the Hearing Officer's Conclusion of Law Number 5 as indicated herein.

EXCEPTION NUMBER 5

Prior to this proceedings, Ms. Brun filed a claim for unemployment compensation which was granted. The District appealed. In the resultant decision, (Case No. 91-14242U, attached as Exhibit C) the Appeals Referee specifically found that Mr. Jadwin ordered Ms. Brun to furnish the address list before she walked out on the conversation in her office, and that she did not

later comply with Mr. Jadwin's verbal order. Respondent offered the appeals decision in this proceeding to collaterally estop reconsideration of this same issue. (TR. 205)

The Hearing Officer accepted a proffer of the unemployment compensation appeals decision, and indicated she would decide its collateral estoppel effect in her recommended order. (TR. 208-209) The Recommended Order contains no specific ruling on this point. However, since the Hearing Officer ruled on the evidence presented regarding whether Mr. Jadwin ordered Ms. Brun to furnish Ms. Anderson the address list during their conversation in Ms. Brun's office, I will assume that the Hearing Officer rejected the unemployment compensation appeals decision as collateral estoppel on this issue.

In exception Number 5 Respondent argues that the District should accept the unemployment compensation appeals decision as collateral estoppel on the issues of whether Mr. Jadwin ordered Ms. Brun to furnish Ms. Anderson with the address list during their conversation in Ms. Brun's office, and whether Ms. Brun then failed to do so. For the reasons set forth below, I accept Exception Number 5.

The doctrine of collateral estoppel bars relitigation of the same issues between the same parties in a different cause of action. Clean Water, Inc. v. State, Department of Environmental Regulation, 402 So.2d 456 (Fla. 1st DCA 1981). The doctrine requires that the issue or point in question in the second action that is sought to be barred from relitigation be identical to a necessary and material issue or point in question resolved in the first action. Fla.

Dept. of Transportation v. Gary, 513 So.2d 1338 (Fla. 1st DCA 1987). The elements of collateral estoppel are (1) that the parties be identical, (2) that the particular matter be fully litigated and determined, (3) which results in a final decision, (4) in a court of competent jurisdiction. Huskey Industries v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982); U.S.F. & G. v. Odems, 444 So.2d 78 (Fla. 5th DCA 1984).

The unemployment compensation appeals decision involved a dispute between Ms. Brun and the District, who are identical parties to this proceeding. The issue before the unemployment compensation Appeals Referee was whether Ms.

Brun's conduct, which resulted in her termination, was "misconduct connected with work," meaning an intentional act or course of conduct by Ms. Brun in violation of her duties and obligations to the District. (Exhibit

The Appeals Referee was directly presented with conflicting evidence of whether Mr. Jadwin gave Ms. Brun a direct verbal order to provide a corrected address list to Ms. Anderson, and whether Ms. Brun refused to obey that order. (Exhibit C) It was determined that in January 1991, Mr. Jadwin "told the claimant [Ms. Brun] to provide the list of addresses to the secretary [Ms.

Anderson]", and that Ms. Brun told Mr. Jadwin to put his request in a memo then left the room. (Exhibit C). The unemployment compensation appeals decision expressly resolved the necessary and material conflicting evidence of whether Mr. Jadwin actually ordered Ms. Brun to provide the address list. (Exhibit C). Thus, the particular matters of whether Mr. Jadwin ordered Ms. Brun to provide the address list to Ms. Anderson during the conversation in Ms. Brun's office, and whether Ms. Brun then failed to do so, were fully litigated and determined.

The unemployment compensation appeal resulted in a final decision which was not appealed. (Exhibit C). Thus, the unemployment compensation appeal proceeding resulted in a final decision.

The unemployment compensation appeals decision was conducted in accordance with Section 120.57, Fla. Stat., was quasi judicial, allowed for the sworn testimonial witnesses, cross-examination, and minutes of relevant exhibits, and resolution of conflicting evidence. See, Rule 38B-2.008(9)(a), Fla. Admin.

Code. Thus, for the purpose of this administrative proceeding, the unemployment compensation appeals decision was rendered by a "court of competent jurisdiction."

The doctrine of collateral estoppel is applicable to administrative proceedings. Brown v. Dept. of Professional Regulation, 17 FLWD 1771 (Fla. 1st DCA 1992); City of Bartow v. PERC, 382 So.2d 311 (Fla. 3rd DCA 1979); Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So.2d 35 (Fla. 3d DCA), cert. denied, 267 So.2d, 833 (Fla. 1972); Rimes and Lannon, "Res Judicata and Collateral Estoppel in Administrative Hearings", 62 Fla. Bar J. 41 (April 1988). Having found that all of the elements of collateral estoppel are met in the application of the unemployment compensation appeals decision to this proceeding, I hold that based upon the unemployment compensation appeals decision, Mr. Jadwin had verbally ordered Ms. Brun to provide Ms. Anderson with the address list during their conversation in Ms. Brun's office, that Ms. Brun then failed to do so, and, as such, Ms. Brun's conduct constituted insubordination as defined by District policy. I reject any Conclusions of Law in the Recommended Order to the contrary.

ORDER

IT IS HEREBY ORDERED that, based upon the foregoing, Teresa Brun is terminated from her position with the District effective February 25, 1991.

Done and ordered this 3rd day of October, 1992.

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

11/03/92

(DATE) HENRY DEAN

EXECUTIVE DIRECTOR

RENDERED this 4th day of November, 1992.

PATRICIA C. SCHULTZ DISTRICT CLERK

ENDNOTE

1/ Finding of Fact Number 19 indicates that Ms. Brun testified that "Mr. Payton had sided with her and told her to go back to Ms. Anderson and tell her the file was in the computer and explain the file to her." However, this same Finding of Fact indicates that this portion of Ms. Brun's testimony was not credible.

NOTICE OF RIGHTS

1. Any substantially affected person who claims that final action of the District constitutes an unconstitutional taking of property without just compensation may seek review of the action in circuit court pursuant to Section 373.617, Florida Statutes, and the Florida Rules of Civil Procedures, by filing an action within 90 days of the rendering of the final District action.

   
   

2. Pursuant to Section 120.68, Florida Statutes, a party who is adversely affected by final District action may seek review of the action in the district court of appeal by filing a notice of appeal pursuant to Fla. R. App. P. 9.110 within 30 days of the rendering of the final District action.

   
   

3. A party to the proceeding who claims that a District order is inconsistent with the provisions and purposes of Chapter 373, Florida Statutes, may seek review of the order pursuant to Section 373.114, Florida Statutes, by the Land and Water Adjudicatory Commission (Commission) by filing a request for review with the Commission and serving a copy on the Department of Environmental Regulation and any person named in the order within 20 days of the rendering of the District order. However, if the order to be reviewed is determined by the Commission within 60 days after receipt of request for review to be of statewide or regional significance, the Commission may accept a request for review within

   30 days of the rendering of the order.

   
   

4. A District action or order is considered "rendered" after it is signed by the Chairman of the Governing Board on behalf of the District and is filed by the District Clerk.

   
   

5. Failure to observe the relevant time frames for filing a petition for judicial review as described in paragraphs #1 and #.2 or for Commission review as described in paragraph #3 will result in waiver of that right to review.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing NOTICE OF RIGHTS has been furnished by United States Mail to:

RODNEY W. SMITH, ESQ.

1. BOX 628

   ALACHUA Florida 32615

   
   

   at 4:00 P.M. this 4th day of NOVEMBER, 1992.

   
   

   
   

   PATRICIA C. SCHULTZ DISTRICT CLERK

   St. Johns River Water CERTIFIED MAIL NUMBER Management District

   Post Office Box 1429 Palatka, Florida 32178-1429

   (904)328-423

   NOTICE OF RIGHTS

   
   

   1. Any substantially affected person who claims that final action of the District constitutes an unconstitutional taking of property without just compensation may seek review of the action in circuit court pursuant to Section 373.617, Florida Statutes, and the Florida Rules of Civil Procedures, by filing an action within 90 days of the rendering of the final District action.

      
      

   2. Pursuant to Section 120.68, Florida Statutes, a party who is adversely affected by final District action may seek review of the action in the district court of appeal by filing a notice of appeal pursuant to Fla. R. App. P. 9.110 within 30 days of the rendering of the final District action.

      
      

   3. A party to the proceeding who claims that a District order is inconsistent with the provisions and purposes of Chapter 373, Florida Statutes, may seek review of the order pursuant to Section 373.114, Florida Statutes, by the Land and Water Adjudicatory Commission (Commission) by filing a request for review with the Commission and serving a copy on the Department of Environmental Regulation and any person named in the order within 20 days of the rendering of the District order. However, if the order to be reviewed is determined by the Commission within 60 days after receipt of request for review to be of statewide or regional significance, the Commission may accept a request for review within

      30 days of the rendering of the order.

      
      

   4. A District action or order is considered "rendered" after it is signed by the Chairman of the Governing Board on behalf of the District and is filed by the District Clerk.

      
      

   5. Failure to observe the relevant time frames for filing a petition for judicial review as described in paragraphs #1 and #2 or for Commission review as described in paragraph #3 will result in waiver of that right to review.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing NOTICE OF RIGHTS has been furnished by United States Mail to:

WILLIAM L. TOWNSEND, JR. ESQUIRE WALTON, TOWNSEND & MCLEOD

1. BOX 250

   PALATKA Florida 32178-0250

   
   

   at 4:00 P.M. this 4th day of NOVEMBER, 1992.

   
   

   
   

   PATRICIA C. SCHULTZ DISTRICT CLERK

   St. Johns River Water CERTIFIED MAIL NUMBER Management District

   Post Office Box 1429 Palatka, Florida 32178-1429

   (904)328-4233

   NOTICE OF RIGHTS

   
   

   1. Any substantially affected person who claims that final action of the District constitutes an unconstitutional taking of property without just compensation may seek review of the action in circuit court pursuant to Section 373.617, Florida Statutes, and the Florida Rules of Civil Procedures, by filing an action within 90 days of the rendering of the final District action.

      
      

   2. Pursuant to Section 120.68, Florida Statutes, a party who is adversely affected by final District action may seek review of the action in the district court of appeal by filing a notice of appeal pursuant to Fla. R. App. P. 9.110 within 30 days of the rendering of the final District action.

      
      

   3. A party to the proceeding who claims that a District order is inconsistent with the provisions and purposes of Chapter 373, Florida Statutes, may seek review of the order pursuant to Section 373.114, Florida Statutes, by the Land and Water Adjudicatory Commission (Commission) by filing a request for review with the Commission and serving a copy on the Department of Environmental Regulation and any person named in the order within 20 days of the rendering of the District order. However, if the order to be reviewed is determined by the Commission within 60 days after receipt of request for review to be of statewide or regional significance, the Commission may accept a request for review within

      30 days of the rendering of the order.

      
      

   4. A District action or order is considered "rendered" after it is signed by the Chairman of the Governing Board on behalf of the District and is filed by the District Clerk.

      
      

   5. Failure to observe the relevant time frames for filing a petition for judicial review as described in paragraphs #1 and #2 or for Commission review as described in paragraph #3 will result in waiver of that right to review.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing NOTICE OF RIGHTS has been furnished by United States Mail to:

MARGARET A. JONES, CLERK COMMISSION ON HUMAN RELATIONS

325 JOHN KNOW ROAD BUILDING F SUITE 240

TALLAHASSEE Florida 32303-4113

at 4:00 P.M. this 4th day of NOVEMBER, 1992.

PATRICIA C. SCHULTZ DISTRICT CLERK

St. Johns River Water CERTIFIED MAIL NUMBER Management District

Post Office Box 1429 Palatka, Florida 32178-1429

(904)328-4233

NOTICE OF RIGHTS

1. Any substantially affected person who claims that final action of the District constitutes an unconstitutional taking of property without just compensation may seek review of the action in circuit court pursuant to Section 373.617, Florida Statutes, and the Florida Rules of Civil Procedures, by filing an action within 90 days of the rendering of the final District action.

   
   

2. Pursuant to Section 120.68, Florida Statutes, a party who is adversely affected by final District action may seek review of the action in the district court of appeal by filing a notice of appeal pursuant to Fla. R. App. P. 9.110 within 30 days of the rendering of the final District action.

   
   

3. A party to the proceeding who claims that a District order is inconsistent with the provisions and purposes of Chapter 3731 Florida Statutes, may seek review of the order pursuant to Section 373.114, Florida Statutes, by the Land and Water Adjudicatory Commission (Commission) by filing a request for review with the Commission and serving a copy on the Department of Environmental Regulation and any person named in the order within 20 days of the rendering of the District order. However, if the order to be reviewed is determined by the Commission within 60 days after receipt of request for review to be of statewide or regional significance, the Commission may accept a request for review within

   30 days of the rendering of the order.

   
   

4. A District action or order is considered "rendered" after it is signed by the Chairman of the Governing Board on behalf of the District and is filed by the District Clerk.

   
   

5. Failure to observe the relevant time frames for filing a petition for judicial review as described in paragraphs #1 and 2 or for Commission review as described in paragraph #3 will result in waiver of that right to review.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing NOTICE OF RIGHTS has been furnished by United States Mail to:

DANA BAIRD GENERAL COUNSEL

FLORIDA COMMISSION ON HUMAN RELATIONS

325 JOHN KNOX ROAD BUILDING F, SUITE 240

TALLAHASSEE Florida 32399-1925

at 4:00 P.M.. this 4th day of NOVEMBER , 1992.

PATRICIA C. SCHULTZ DISTRICT CLERK

St. Johns River Water CERTIFIED MAIL NUMBER Management District

Post Office Box 1429 Palatka, Florida 32178-1429

(904)328-4233

Docket for Case No: 91-002291

Orders for Case No: 91-002291