STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3161

)

LORI GOLDSTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on October 20, 1994, in Clearwater, Florida.

APPEARANCES

For Petitioner: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

For Respondent: Robert McCormack, Esquire

Prestige Professional Park 2655 McCormick Drive

Clearwater, Florida 34619 STATEMENT OF THE ISSUE

Whether Petitioner had just cause to dismiss Respondent from her position as Building Construction Inspector II on or about April 21, 1994.

PRELIMINARY STATEMENT

Petitioner terminated Respondent on April 21, 1994, for alleged violations of Civil Service Rules and Regulations of the City of Clearwater.

Respondent was provided with notice of termination by the City Manager on or about April 14, 1994.

In that notice, Respondent was advised of certain rights of appeal pursuant to Rule 14 of the Civil Service Rules and Regulations of the City of Clearwater and Chapter 25 of the Clearwater City Code. Petitioner thereafter timely requested a formal hearing and this matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing.

Following responses from the parties, on July 20, 1994, this matter was noticed for hearing for October 20, 1994, and was heard as scheduled.

At the hearing Petitioner presented the testimony of Anna Fierstein, a human resources employee technician; Tom Chaplinsky, a construction inspection supervisor and plan reviewer for Petitioner; Kevin Garriot, a central permitting supervisor and former code analyst employed by Petitioner; and Vick Chadora, Petitioner's assistant director for planning and a reviewer of inspection and building codes. Respondent testified on her own behalf. Petitioner introduced

9 exhibits and Respondent introduced 3 exhibits, all of which were received in evidence at the hearing.

The parties filed proposed recommended orders which were considered in preparation of this Recommended Order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an Appendix.

FINDINGS OF FACT

1. Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II.

   
   

2. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit:

   
   

   (b) Is incompetent in the performance of the specific duties of [her] position.

   (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof.

   1. Has been . . . guilty of conduct un- becoming 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.

   2. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] 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 the public.

   
   

3. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed.

   
   

4. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints.

5. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994.

   
   

6. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning.

   
   

7. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits.

   
   

8. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification.

   
   

9. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m.

   
   

10. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio.

    
    

11. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered.

    
    

12. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered.

    
    

13. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle.

    
    

14. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle.

    
    

15. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was

    coming due and the lender was insisting that certain renovations be completed prior to closing.

    
    

16. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days.

    
    

17. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system.

    
    

18. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge.

    
    

19. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994.

    
    

20. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave.

    
    

21. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge.

    
    

22. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues.

    
    

23. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen).

    
    

24. Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

26. The authority of the Petitioner is derived from Rule 14 of the Civil Service Rules and Regulations of the City of Clearwater and Chapter 25 of the City of Clearwater Code relating to civil service employees.

    
    

27. Petitioner has the burden of establishing that Petitioner's dismissal of Respondent was for "just cause" on April 21, 1994.

    
    

28. Petitioner established that it had just cause and that it properly terminated Respondent on April 21, 1994, for, inter alia, leaving the City proper in a city vehicle with the seal of the City covered with a magnetic tape on April 11-13, 1994, such that she could go to her residence. In so doing, Petitioner engaged in the unauthorized use of city property; She also engaged in conduct unbecoming a city employee while on duty and, she failed to obey an order to first obtain authorization to leave the city limits in an official vehicle, all in violation of Rule 14, Sections 1(d), (k) and (l) of the City Service Rules and Regulations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from

her position of a Building Construction Inspector II effective April 21, 1994.

DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 28th day of February 1995.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact.

Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order.

Paragraph 3, rejected, unnecessary.

Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant.

Paragraph 8, conclusionary and argument.

Paragraph 11, adopted as modified, paragraph 22, Recommended Order.

Respondent's Proposed Findings of Fact.

Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order.

Paragraph 8, rejected, irrelevant.

Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order.

Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence,

paragraph 23, Recommended Order.

Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence,

paragraph 23, Recommended Order.

Paragraphs 19-22, rejected, irrelevant and unnecessary.

COPIES FURNISHED:

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

Post Office Box 4748 Clearwater, Florida 34618-4748

Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive

Clearwater, Florida 34619

Karleen DeBlaker City Clerk

City of Clearwater

P.O. Box 4748

Clearwater, Florida 34618-4748

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 ten 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.

Docket for Case No: 94-003161

Orders for Case No: 94-003161