STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST COAST REGIONAL WATER )

SUPPLY AUTHORITY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0853

)

STEVE TOLER, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on July 13, 1995 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory A. Hearing, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 North Brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601

For Respondent: Michael S. Edenfield, Esquire

Battle & Edenfield, P.A.

206 Mason Street Brandon, Florida 33511

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether sufficient grounds exists for the Petitioner, West Coast Regional Water Supply Authority, to terminate Respondent, Steve Toler, Jr.'s employment with the Authority because of the matters alleged in the Letter of Termination dated February 15, 1995.

PRELIMINARY MATTERS

By Letter of Termination dated February 15, 1995, Bruce E. Kennedy, then the Interim General Manager of the West Coast Regional Water Supply Authority, (Authority), advised the Respondent, Steve Toler, Jr., that he was being terminated from employment with the Authority, effective immediately, because of his removal and disposal of aluminum pipe belonging to Pinellas County from the Cross Bar Wellfield on or about November 21 or 22, 1994. Respondent thereafter filed a Petition For Administrative Hearing to dispute the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of the Respondent, Steve Toler, Jr.; Richard J. Capp, research management engineer for the Authority at

its Cypress Creek pump station; Harry L. Vogel, a facilities maintenance supervisor with the Authority; and Bruce E. Kennedy, currently Director of Resource Management and formerly Interim Director of the Authority. Petitioner also introduced Petitioner's Exhibits 1 through 4. Respondent testified in his own behalf, and presented the testimony of Randolph G. Nold and Benjamin B. Nevel, both employees of the Authority. Respondent also introduced Respondent's Exhibits A and B.

A transcript was furnished and subsequent to the hearing both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Petitioner, Authority, was a governmental agency with membership held by Hillsborough, Pinellas and Pasco Counties and the cities of St. Petersburg and Tampa. It is charged with the responsibility of providing water resource management for its members.

   
   

2. In November, 1994, the Respondent, Steve Toler, Jr., then employed for

   9 1/2 years by the Authority as a maintenance technician, was under the supervision of Ben Nevel, lead supervisor for his crew and Harry Vogel, the facilities maintenance supervisor at Cypress Creek pump station. Just before Thanksgiving that year, his crew was given the responsibility of removing certain supposedly above ground aluminum pipe belonging to Pinellas County and replacing it with buried PVC pipe on the county's well field on Cross Bar Ranch, owned by Pinellas County.

   
   

3. On the last day of the project Respondent was working by himself at the job site doing those things necessary to complete the project. This included removing three aluminum pipes and replacing them with three PVC pipes. In the course of the removal of the aluminum pipe, two pipes were damaged by Respondent because they were buried and he could not see them.

   
   

4. When Respondent attempted to bury the three pieces of PVC pipe, he found that he needed some pipe lubricant in order to get them joined and called the pump station to have someone bring it. The lubricant was brought to the site by Mr. Vogel about noon, and the two men talked about the project. According to Mr. Vogel, Respondent made no mention of any damaged pipe nor did Vogel see any damaged pipe while he was at the site. Vogel adamantly denies that he ever, either that day or at any other time, told Respondent that he could throw away damaged pipe. The instructions that Vogel had left with Mr. Nevel for transmittal to the crew was that the removed pipe was to be placed in storage at the north end of the ranch because it belonged to Pinellas County, not to the Authority, and even if the pipe was damaged, the ends might be used for fittings. It is not clear whether Respondent knew the pipe belonged to the county or to the cattle company which had originally owned the ranch.

   
   

5. Notwithstanding, Respondent took the two damaged pipes back to the Cypress Creek pumping station where, without speaking to anyone about what he proposed to do, he placed them in the trash dumpster for disposal. The following day, after completing his day's work, Respondent noted that the pipe was still in the dumpster and, without seeking approval from anyone, removed it from the dumpster, placed it in his truck, and that same day, sold it to All American Metal Recycling in Land O'Lakes, Florida, for $29.00 which he kept for his personal use. He collects scrap aluminum and copper in order to sell them.

6. Respondent admits that as an Authority employee, he did not have the authority to take property owned by the Authority or its members for his own use. Ordinarily, he admits, the disposal of Authority-owned property had to be approved. The authority for approval, as contained in the agency's standard operating procedure for disposal of Authority assets, dated February 14, 1994, was the Cypress Creek storekeeper. Though it is not written, the Authority has a policy against employees taking material out of the dumpsters at the Cypress Creek facility.

   
   

7. It was Toler's understanding, however, that old, unusable pieces of piping and wood could be thrown away, but equipment and property that had value had to be turned into Mr. Rooney, the storekeeper, who would evaluate it for disposal or repair. At no time did Respondent have the authority to make that determination.

   
   

8. Mr. Toler admits he was aware of the Authority's policy on the disposal of property as noted in the February 14 SOP, as it had been outlined at no lees than two safety meetings he had attended. He understood that if he threw property away without authority, he could be fired. In fact, he admits, Mr. Vogel had so advised him of that. In the instant case, however, he contends, Mr. Vogel told him on the last day of the project in issue, in response to his inquiry, that he should throw the damaged pipe away. This was, as stated earlier, categorically denied by Mr. Vogel.

   
   

9. Respondent also indicates that on the second day of the project, pipe being removed was damaged. That pipe was taken to the north pasture and stacked near other, undamaged pipe. The total amount of aluminum pipe removed in this project consisted of approximate one hundred twenty foot long "sticks". Respondent well knew he could not take and sell the stacked pipe, even that which was damaged.

   
   

10. Respondent claims that no one saw him put the damaged pipe into the dumpster. He did not think about the opportunity to salvage the pipe when Mr. Vogel told him to throw it away or even when he brought it back and threw it into the dumpster. It was not until the next day when, after work, he saw the pipe still in the dumpster, that it occurred to him to take it, he claims.

    
    

11. Respondent admits he has taken scrap metal and sold it before and claims others have done so, too. When he put this pipe in the dumpster he realized that others might take it, so he was somewhat surprised when it was still there the next day.

    
    

12. Respondent also admits he did not tell Mr. Vogel how he had disposed of the pipe at first. Once the situation came under investigation, however, as a result of an inquiry regarding missing pipe from the Cross Bar Ranch project, he did so. He admits that sometime after the day he took and sold the pipe as scrap, but before the investigation was commenced, Mr. Vogel asked him what he had done with the pipe, and Respondent replied he had thrown it away. A few days later, in Vogel's office, when the investigation had begun, Mr. Vogel again asked Respondent what he had done with the pipe, and this time Respondent admitted to scrapping it.

    
    

13. In the course of the investigation, Respondent spoke with Mr. Capp, a Cypress Creek engineer, about the allegation. In that conversation, held in Mr. Capp's office while no one else was present, Respondent admitted selling the broken pipe for scrap and advised that Mr. Vogel had told him to throw it away.

    At that time, he offered to replace the pipe, but his offer was not accepted. Some time later, and prior to the pre-disciplinary hearing, he was given a letter by Mr. Capp placing him on administrative leave pending investigation. At that time, Mr. Capp denied knowing what was in the letter.

    
    

14. On February 8, 1995 a pre-disciplinary hearing was held with Respondent and counsel present at which time Respondent was given an opportunity to tell his side of the story. At that time, he did not mention any other individuals who had taken scrap from the dumpster, nor had he ever told Mr. Vogel, Mr. Capp or Mr. Kennedy about that. He claims he does not know of any cases where either Mr. Capp or Mr. Kennedy knew of others taking scrap but not being disciplined. However, Respondent is of the opinion Mr. Vogel knows what is going on but he cannot be sure. As was stated previously, Respondent has taken scrap from the dumpster before and claims Mr. Vogel knew it. Vogel, predictably, denies that.

    
    

15. Some time after the pre-disciplinary hearing, after Kennedy received the information regarding the incident as determined therein, he discharged Respondent for several violations of the Authority's personnel rules. These included the removal and sale of the scrap pipe owned by Pinellas County, committing a breach of public trust, and committing a breach of member government trust which was deleterious to the Authority in that, in Kennedy's opinion, it undermined the public's faith and confidence in the Authority's public service responsibilities.

    
    

16. Kennedy asserts that the relationship between the Authority and its member governments requires that each cooperate with the other in the mission to supply water to the public. Trust and confidence are essential elements of that relationship. Employees of the Authority and its member governments frequently are in and out of each others' facilities. If a member government loses trust in an Authority employee, the Authority's ability to efficiently perform its function would be hampered. This is a reasonable and supportable position and it is so found.

    
    

17. In the past, the Authority has discharged employees for violating employee rules which reflect adversely on Authority integrity. One was discharged for the improper use of an Authority vehicle, and others have been discharged for violations of the property disposal policy. It would appear that Mr. Toler has not been treated differently than any others who were found to have violated similar policies.

    
    

18. Since February, 1944, when the Authority adopted its policy regarding disposal of property, three employees, including Respondent, have removed materials from the dumpster at the Cypress Creek facility for their own use. Among these are Mr. Nevel who admits to taking electric wire and three discarded printers. Nothing taken by the others included aluminum pipe, however. Capp, Kennedy and Vogel all deny knowing that employees were taking scrap. Respondent cannot say that any of them did know.

    
    

19. Consistent with that philosophy, Mr. Kennedy indicates he would have discharged Respondent for placing the scrap in the dumpster whether or not he sold it. By the same token, he would have discharged Respondent had he taken and sold the pipe, even if he had not placed it in the dumpster.

    
    

20. Another incident arose in June, 1995, just prior to the hearing, involving the potential disposal of scrap pipe. Mr. Kennedy learned that a stick of aluminum pipe was in the dumpster at the Cypress Creek facility. The

    pipe, owned by the Authority, had been placed there by Mr. Rooney, the storekeeper, after Mr. Nevel used the ends to retrofit some piping at the Cross Bar Ranch. When this was discovered, Mr. Kennedy directed the pipe be recovered and held for possible future use or sale. Whereas Respondent contends this action was an attempt at a cover-up, it is more likely the result of an unintentional discard of potentially useful pipe.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

22. Personnel rules of the Authority are codified in Chapter 16M-2, F.A.C. Rule 16M-2.035, F.A.C., provides, as pertinent here, that an employee may be disciplined for, inter alia, performance which is not up to required standards. Rule 16M-2.036 provides for discharge of employees for misconduct deleterious to the Authority's ability to carry out its public service responsibilities.

    
    

23. There is no dispute that Mr. Toler took the damaged pipe from the work site and placed it in the dumpster back at the Authority's facility. There is also no dispute that the following day he removed it from the dumpster without permission and sold it, retaining the proceeds of the sale for his own use. The issue is whether his actions, in light of the circumstances of this case, constitute misconduct sufficient to support discipline to include discharge.

    
    

24. Respondent relies on his claim that he placed the pipe in the dumpster at the direction of Mr. Vogel. Mr. Vogel denies having stated this, but, in reality that is not the point. The point is that thereafter, without instruction or permission from anyone in authority, Respondent took the pipe out of the dumpster, removed it from the Authority facility, sold it and thereafter kept the proceeds of the sale for his own use. It is this which supports his discharge.

    
    

25. Respondent also claims, however, that it was a common and accepted occurrence for employees to "scrap", that is, to remove discard from the dumpster and sell or use it for personal projects. Most likely it was a common occurrence, and quite possibly little effort was made to stop it. However, prior misconduct by others does not justify current or continuing misconduct by the Respondent. To be sure, the Authority management has the responsibility to stop this type of petty misappropriation if it feels it inappropriate. Once the decision is made that this conduct was not acceptable and that decision was made and communicated to employees, those employees who chose to continue it do so at their own risk. Respondent did so and was caught, and he must now pay the price for his misconduct. In light of the uncontroverted policy statement of discharge for this type of misconduct, discharge in this case is not inappropriate.

RECOMMENDATION

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

RECOMMENDED that the East Coast Regional Water Supply Authority deny Respondent's Petition for Relief and Enter a Final Order discharging him effective February 15, 1995.

RECOMMENDED this 29th day of August, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 29th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. & 2. Accepted and incorporated herein.

1. & 4. Accepted but irrelevant to any disputed issue of fact.

   1. Accepted.

   2. - 8. Accepted.

      9. -	14.	Accepted	and	incorporated herein.
      15. -	19.	Accepted	and	incorporated herein.
      20. -	25.	Accepted	and	incorporated herein.
      26. &	27.	Accepted	and	incorporated herein.
      	28.	Accepted.
      	29.	Accepted	and	incorporated herein.
      	30.	Accepted	and	incorporated herein.
      	31.	Accepted	and	incorporated herein.

      
      

      FOR THE RESPONDENT:

      
      

      Respondent's counsel has identified his Proposed Findings of Fact by letter rather than number. For the sake of consistency in this Order they will be re- identified herein with numbers.

      
      

      1. Accepted and incorporated herein.

      2. & 3. Accepted but not dispositive of any issue of fact.

1. - 8. Accepted and incorporated herein.

   1. Accepted but not dispositive of any issue of fact.

   2. - 12. Accepted and incorporated herein.

      1. Accepted and incorporated herein.

      2. Rejected as not a proper Finding of Fact but more a Conclusion of Law.

COPIES FURNISHED:

Gregory A. Hearing, Esquire Thompson, Sizemore & Gonzalez, P.A.

109 North brush Street, Suite 200 Post Office Box 639

Tampa, Florida 33601

Michael S. Edenfield, Esquire Battle & Edenfield, P.A.

206 Mason Street Brandon, Florida 33511

General Manager

West Coast Regional Water Supply Authority

2535 Landmark Drive, Suite 211

Clearwater, Florida 34621

Donald D. Conn General Counsel

West Coast Regional Water Supply Authority

2535 Landmark Drive, Suite 211

Clearwater, Florida 34621

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-000853

Orders for Case No: 95-000853