STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5614

)

LINDA RATCLIFFE, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 31, 1994, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

For Respondent: Lou Ratcliffe

Linda Ratcliffe 663 Bay Esplanade

Clearwater, Florida 34630-1503 STATEMENT OF THE ISSUE

The issue in this case is whether the City Manager should dismiss the Respondent, Linda Ratcliffe, from her employment as a Library Assistant II on charges that she violated Rule 14, Section 1, paragraphs (k) and (l) [formerly

1. and (k), respectively], of the Civil Service Rules and Regulations of the City of Clearwater.

   
   

   PRELIMINARY STATEMENT

   
   

   On or about July 30, 1993, the City Manager of the Petitioner, the City of Clearwater (the City), gave the Respondent, Linda Ratcliffe, written notice that she was being dismissed from her employment as a Library Assistant II on charges that she violated Rule 14, Section 1, paragraphs (k) and (l) [formerly (j) and (k), respectively], of the Civil Service Rules and Regulations of the City of Clearwater, effective August 4, 1993. She appealed under Section 8 of Rule 14, and the matter was referred to the Division of Administrative Hearings. Final hearing initially was scheduled for January 7, 1994, but was continued on ore tenus motion and was rescheduled for March 31, 1994.

   At final hearing, the City called five witnesses and had City Exhibits 1 through 10 admitted in evidence. The Respondent did not testify in her own behalf. She called one witness (her mother) and had Respondent's Exhibit 2 admitted in evidence. (The City's objection to Respondent's Exhibit 1 was sustained.) At the conclusion of the presentation of the evidence, the City ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was not filed until May 10, 1994.

   
   

   Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 93-5614.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Linda Ratcliffe, has been a satisfactory employee in the City's Library Department since approximately December, 1985. In the summer of 1993, she was a Library Assistant II in the Beach branch of the Library.

      
      

   2. At the end of 1992, the City Library was converting to a new computerized circulation record-keeping system. The Library Director sent all Library employees a memorandum dated December 8, 1992, on the subject of "Staff Overdues and Fines." It placed the employees on notice of Library plans to more aggressively pursue patrons to collect fines and, if appropriate, replacement cost for overdue materials and that, to succeed in the new policy, the Library had to insure that Library employees did not have overdue materials, were not granted privileges not accorded to members of the general public and paid fines and replacement costs when due. The employees were specifically advised that, if materials were overdue, fines had to be paid and that infractions of the new policies would be discussed during performance evaluation reviews.

      
      

   3. In July, 1993, the Library Director had the Respondent's circulation record checked routinely in preparation for her September performance evaluation. On or about July 20, 1993, it was discovered that the Respondent had 13 books overdue, two long-overdue. Yet, there was no record of any fines due on them. Apparently, someone on the circulation staff had entered the system and "zeroed" approximately $21.40 in fines, assuming the books ultimately were returned. If the books were not returned because they were lost or damaged, approximately $125 would be due as the replacement cost of the items. Since it was determined that no other staff member had "zeroed" the fines, it was presumed that the Respondent had done it.

      
      

   4. In addition, the circulation record-keeping system showed that, as of July 12, 1993, the two long-overdue books would have caused the computerized circulation record-keeping system to automatically alert the circulation staff that library privileges on the Respondent's account were suspended because of the two long-overdue books. Yet, the system showed that the Respondent had checked out additional items after that date. Assuming that the system was operative, the additional items could not have been checked out to the Respondent's account unless someone on the library staff had bypassed the automatic stop. Again, since it was determined that no other staff member had bypassed the automatic stop for the Respondent, it was presumed that the Respondent herself had done it.

   5. Finally, the system showed that the Respondent had eight videotapes checked out on her account. The maximum number allowed to be checked out at one time is three. Allowing for the return of up to three videotapes when checking out three more, the system tolerates up to six checked out to any one account before automatically alerting the circulation staff that no additional videotapes are allowed to be checked out to that account. Again assuming that the system was operative, the eight videotapes could not have been checked out to the Respondent's account unless someone on the library staff had bypassed the automatic stop. Again, since it was determined that no other staff member had bypassed the automatic stop for the Respondent, it was presumed that the Respondent herself had done it.

      
      

   6. When the Respondent was confronted with the charges against her on July 23, 1993, the City already had assessed the evidence against the Respondent and had decided that dismissal was the appropriate penalty in light of the evidence. In response to the charges, the Respondent admitted to "zeroing" the fines. Her explanation was that some or all of the overdue books were damaged by water or lost in the confusion and aftermath of the March 12-13, 1993, "no name storm of the century." She had made her supervisor aware that books checked out to her account had been damaged or lost in the storm, and she was told to "take care of it" according to proper procedures.

      
      

   7. The Respondent was not expressly told to "zero" the fines for overdue books. But she claimed that she had "zeroed" the fines because she had applied to the Federal Emergency Management Agency (FEMA) for reimbursement for the damaged or lost books and did not want to enter the losses in the circulation record-keeping system until she had the FEMA reimbursement money to pay for them. Instead, she showed the books as still checked out to her but without any fines showing. She intended to pay the replacement costs of the lost and damaged books when she got the money from FEMA.

      
      

   8. Official library policy for handling damaged and lost books is set out in the Library Circulation Manual. It states:

      
      

      The full, current replacement price is charged for the book. . . . Damage that can't be repaired is replacement cost.

      
      

      (Emphasis in the original.) The policy notes that library books are more expensive than other books because of special library bindings and costs of ordering, labeling, barcoding, covering, cataloging, shelving, and storage and that replacement cost often exceeds the original cost due to appreciation in value and inflation. Under the policy, standard replacement cost for an adult (hardback) book is $26 and for a children's book is $13.

   9. The policy also provides specifically for natural catastrophes such as the March 12-13, 1993, storm:

      
      

      In limited cases, in line with "the library with a heart" philosophy, the library may waive costs; for example, if a house burned down with the books in it. In most cases, the patron may recover the costs through their insurance. Refer the case to a supervisor, if you think this rule may apply.

      
      

      (Emphasis in the original.) The evidence was that the Respondent "referred" her own case to her supervisor.

      
      

   10. There was some evidence that the Respondent was expected to do more than just tell her supervisor that she had lost or damaged books as a result of the March 12-13, 1993, storm.

       
       

   11. The supervisor told her to "take care of it." There was evidence that the Respondent's supervisor expected the Respondent to make entries into the computerized circulation record-keeping system showing the books as having been lost or damaged. The Respondent's view was that this was a tedious and unnecessary record-keeping process and that she had more pressing and important tasks to accomplish with her work time.

       
       

   12. There also was evidence that, beyond making the appropriate entries in the system entries showing the books as having been lost or damaged, the supervisor herself was unsure how to "take care of" the matter. If the Respondent had asked her supervisor for advice directly, the supervisor would have had to refer the case on to her supervisor, or to the Library's Circulation Supervisor. Yet she neither volunteered to do so, nor instructed the Respondent to do so. Meanwhile, the Respondent thought she was acting properly under the catastrophe loss policy.

       
       

   13. The Respondent also admitted to bypassing the stop for long-overdue books. She assumed that the "library with a heart" would not revoke a patron's privileges while waiting for insurance benefits to pay for the losses. Since she thought she was acting properly under the catastrophe loss policy, she thought she should be allowed to continue to use her library card.

       
       

   14. The catastrophe loss policy had nothing to do with the videotapes. The Respondent claimed that the eighth videotape was checked out at the Library's Countryside Branch on a back-up system that did not have an automatic stop feature. She claimed that her mother was returning enough videotapes for her to allow her to exceed six videotapes, thereby justifying her bypassing the stop to check out the seventh videotape. But it is found that the Respondent had no reasonable basis for believing that her mother was in the process of or was about to return some of the videotapes. In fact, they were still checked

       approximately a week after the Respondent checked out the additional videotapes. Besides, circulation staff would bypass a stop for a library patron only if staff witnessed the videotapes being returned at the time of checking out additional tapes. It is found that the Respondent generally was lax in following the videotape limit and bypassed the automatic stop in order to check out more videotapes than other patrons would have been able to check out.

   15. Especially in view of the Library's policy to more aggressively pursue patrons to collect fines and, if appropriate, replacement cost for overdue materials, the Respondent's failure to follow library policies regarding videotapes, if made known to the public, would tend to embarrass the City or bring its service into public disrepute. It was not proven that the Respondent's conduct constituted insubordination, but it was a 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. The Respondent was enjoying privileges not allowed other Library staff or members of the public, and the extra videotapes the Respondent checked out against policy were not available for others to check out.

       
       

       CONCLUSIONS OF LAW

       
       

   16. City employees can appeal from a suspension, demotion or dismissal by requesting the appointment of a hearing officer to review the action. See Section 2.285, City of Clearwater Code, and Rule 14, Section 8, of the Civil Service Rules and Regulations of the City of Clearwater. Procedures similar to those set out in Section 120.57, Fla. Stat. (1993), are utilized in the conduct of these appeals. See Section 2.285(3), City of Clearwater Code.

       
       

   17. Under the City's Civil Service Rules, City employees can be dismissed only for just cause. See Sections 1 and 4, of the Civil Service Rules and Regulations of the City of Clearwater. Under Section 120.57, Fla. Stat. (1993), an agency seeking to dismiss or suspend an employee has the burden to prove, by a preponderance of the evidence, that the employee was guilty of charges constituting just cause for the dismissal or suspension. DiLeo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990). The same burden and standard of proof should apply in this case.

       
       

   18. The City charged the Respondent with violating Rule 14, Section 1, paragraphs (k) and (l) [formerly (j) and (k), respectively], of the Civil Service Rules and Regulations of the City of Clearwater, which provides in pertinent part:

       
       

       Sec. 1. Cause for Suspension, Demotion, and Dismissal.--The following, in addition to the offenses listed in the Guidelines for Disciplinary Action . . ., are declared to

       be just causes for suspension, demotion, or dismissal of any employee in the career civil service, though charges may be based upon any cause which will promote the efficiency of the City service other than those herein enumerated, namely, that the employee:

       * * *

2. Has . . . been guilty of conduct unbecoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute.

3. 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.

1. The City of Clearwater Guidelines for Disciplinary Action provide in pertinent part:

   
   

   [The Guidelines] are structured to provide for equality of treatment in discipline.

   However, in recognition of the fact that the circumstances of each infracton or occurrence may differ in many respects from the circumstances in other somewhat similar situations, the City retains the right to treat each occurrence on an individual basis and without creating precedent for other cases which may arise in the future or mitigating previous discipline.

   
   

   Level 5 offenses under the Guidelines justify a 10 to 20 day suspension or dismissal on the first occurence. Under the Guidelines, Level 5 offenses include, among others:

   
   

   * * *

   3. Knowingly falsifying personal or City records, employment applications (when such falsification is detrimental to employment) and including accident, insurance or medical records or reports, purchase orders, timesheets or any other reports, records or applications.

   * * *

   13. Immoral, unlawful or improper conduct on or off the job which is contrary to honesty, modesty or decency and which tends to affect the employee's performance in the work setting. (This includes impairing the reputation and citizens' goodwill toward the City, whether or not such act is a criminal offense.)

   
   

2. The Respondent's dismissal was based in part on an assumption that the Respondent did not follow the catastrophe loss policy--i.e., that she hid her actions from her supervisor instead of advising her supervisor in accordance with the policy. In fact, she told her supervisor who simply told the Respondent to "take care of it." The supervisor herself was unsure how to "take care of it" and, if asked for advice, would have had to refer the case to her supervisor or to the Library's Circulation Supervisor. Yet she neither volunteered to do so, nor instructed the Respondent to do so. The Respondent thought she was acting properly under the catastrophe loss policy. In this respect, her actions did not constitute a knowing falsification of the records and did not constitute dishonesty.

3. With respect to the videotapes, the Respondent's conduct reflects a kind of dishonesty. She generally was lax in following the videotape limit and bypassed the automatic stop in order to check out more videotapes than other patrons would have been able to check out. As found, especially in view of the Library's policy to more aggressively pursue patrons to collect fines and, if appropriate, replacement cost for overdue materials, the Respondent's failure to follow library policies regarding videotapes, if made known to the public, would tend to embarrass the City or bring its service into public disrepute. It was not proven that the Respondent's conduct constituted insubordination, but it was a 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. The Respondent was enjoying privileges not allowed other Library staff or members of the public, and the extra videotapes the Respondent checked out against policy were not available for others to check out.

   
   

4. On the other hand, the arguably more serious charges against the Respondent--knowingly deleting fines with intent to avoid paying them, and knowingly bypassing the automatic stop wrongfully in order to continue to check out materials--were not proven. Dismissal seems to be an overly harsh punishment for the offense that was proven; a 20-day suspension and a demotion would seem to be a more appropriate punishment.

   
   

5. Nothing in the Clearwater Code or in the Clearwater Civil Service Board Rules and Regulations authorizes the payment of back pay. In any event, the Petitioner presented no evidence to prove that she mitigated her damages or what her damages were, after mitigation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order reducing the Respondent's dismissal to a 20-day suspension and demotion to Library Assistant I, or a similar position, as one becomes available.

RECOMMENDED this 1st day of June, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5614

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated. 2.-4. Conclusion of law.

1. Accepted and incorporated.

2. Accepted and incorporated to the extent not subordinate or unnecessary. (As found, not all of the charges were proven.)

3. Accepted and incorporated to the extent not subordinate or unnecessary. (As found, not all of her notes were accurate. Specifically, the Respondent did report the damaged or lost books.)

4. Accepted but subordinate and unnecessary.

5. Last sentence, rejected as not proven. (Also, conclusion of law.) The rest is accepted and incorporated to the extent not subordinate or unnecessary.

6. Subordinate and unnecessary.

7. Rejected as not proven and contrary to facts found that she "basically" admitted "the serious charges." She admitted many of the facts but denied any improper intent.

8. See 11., above.

9. In part accepted and subordinate to facts found; in part, rejected as not proven and contrary to facts found. (His testimony substantiated parts but not all of the charges.)

10. Accepted but subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

1.-2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Accepted but subordinate and unnecessary.

COPIES FURNISHED:

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

P. O. Box 4748

Clearwater, Florida 34618-4748

Linda Ratcliffe 663 Bay Esplanade

Clearwater, Florida 34630-1503

Michael Laursen Secretary

City of Clearwater Civil Service Board

P. O. Box 4748

Clearwater, Florida 34618-4748

Docket for Case No: 93-005614

Orders for Case No: 93-005614