STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4250

)

GARY ELLERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 16, 1996, in Clearwater, Florida.

APPEARANCES

For Petitioner: Leslie K. Dougall-Sides, Esquire

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

For Respondent: Mr. Johnny Long, Representative

c/o Mr. Gary Ellerson (address of record)

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists for the termination of the Respondent's employment by the Petitioner.

PRELIMINARY STATEMENT

By letter dated June 19, 1995, the Petitioner informed the Respondent that he was being dismissed from employment as a Police Aide. The Respondent requested an administrative hearing. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the hearing.

At the hearing, the Petitioner presented the testimony of three witnesses and had 13 exhibits admitted into evidence. The Respondent testified on his own behalf and had one exhibit admitted into evidence.

A transcript of the hearing was filed on March 6, 1996. The Petitioner filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Gary Ellerson was employed as a Police Aide II by the City of Clearwater Police Department (Department).

   
   

2. The position held by Mr. Ellerson is classified as a permanent part- time and is subject to the City of Clearwater Civil Service Rules.

   
   

3. At some time during his employment with the Department, Mr. Ellerson has also worked for the "NuCops" program, a part of the federally-funded "Americorps" project.

   
   

4. One of Mr. Ellerson's NuCops assignments was to provide assistance to a regularly scheduled Boy Scout meeting.

   
   

5. Although on one occasion the Department funded Mr. Ellerson's attendance at a NuCops training program, the NuCops program is not funded or operated by the Department.

   
   

6. At some point immediately prior to April 1, 1995, Mr. Ellerson sought permission from Lt. Frank Daly, a superior, to work as a Police Aide with the Boy Scouts on April 1, 1995. Lt. Daly approved the request, contingent on the further approval of Police Aide Lead Worker Chris Corino and Police Sergeant Heinz.

   
   

7. Based on Lt. Daly's approval, Mr. Ellerson obtained the approval of Mr. Corino and Mr. Heinz.

   
   

8. Mr. Ellerson did not advise Lt. Daly that the April 1 Boy Scout meeting was part of his regularly assigned NuCops duties.

   
   

9. Lt. Daly testified that had Mr. Ellerson identified the Boy Scout meeting as part of his NuCops assignment, the request to include it on Mr. Ellerson's Department time sheet would not have been approved.

   
   

10. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 1, 1995, Mr. Ellerson reported working the same hours to both employers.

    
    

11. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 4, 1995, Mr. Ellerson reported working the same hours to both employers.

    
    

12. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 10, 1995, Mr. Ellerson reported working the same hours to both employers.

    
    

13. There is no evidence that Mr. Ellerson sought or received the Department's permission to include the April 4 and 10 Boy Scout meetings on his Department time sheets.

    
    

14. There is no evidence that Mr. Ellerson worked for the Department during the hours reported on the time sheets for the dates cited herein. On the three relevant dates, Mr. Ellerson attended a meeting of Boy Scouts, a duty of his employment with the NuCops program.

15. Department time sheets contain a signature line where the employee attests to the truth and correctness of the hours reported. Mr. Ellerson signed the statement on the relevant time sheets.

    
    

16. The Department conducted an investigation of the erroneous time sheets. During the investigation, Mr. Ellerson asserted that he listed "training" hours and "studying" hours separately. Review of the time sheets fails to support the assertion. There is no evidence that Mr. Ellerson had differentiated such hours on prior time sheets.

    
    

17. The Petitioner asserts that after the April 1 incident, Mr. Ellerson was told by Police Aide Lead Worker Chris Corino not to include the NuCops/Boy Scout time on his Department time sheets and that Mr. Ellerson failed to follow the directive. Mr. Corino did not testify at the hearing. Mr. Ellerson denies he was told by Mr. Corino that his time sheet was improper. Because there is no non-hearsay evidence which could establish that Mr. Ellerson was specifically told not to include the Boy Scout program on his Department time sheets, the assertion is rejected.

    
    

18. Mr. Ellerson has been previously disciplined by the Department for failure to obey orders (resulting in a written reprimand) and for tardiness and absence from duties (resulting in a one day suspension.)

    
    

19. The evidence establishes that based on the facts of this case, the appropriate disciplinary action is termination of employment.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes and Section 2.285, Ordinances, City of Clearwater Ordinance.

    
    

21. The burden is on the Petitioner to establish by a preponderance of evidence that the actions alleged are true and constitute just cause for termination from employment. Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3rd DCA 1990). The burden has been met.

    
    

22. Clearwater General Order section 213.40 provides as follows:

    
    

    Falsifying Reports - Employees shall not knowingly falsify personal or city records or reports, including accident, insurance, or medical records or reports; employment applications; purchase orders; time sheets or other reports, record, or applications. [Level 5]

    
    

23. Under the guidelines for disciplinary action established by the City of Clearwater, falsification of records is a Level 5 offense. The guidelines state that Level 5 offenses are the most serious and may result in dismissal.

    
    

24. Under the Rules and Regulations of the Clearwater Civil Service Board, termination of employment is appropriate when the employee "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 lower morale in the

    department or to result in loss, inconvenience, or injury to the City or to the public." Rule 14, Section 1(l), Clearwater Civil Service Board Rules and Regulations.

    
    

25. The evidence in this case establishes that the Respondent falsely completed time sheets indicating that he was working on behalf of the City of Clearwater Police Department, when he was performing assigned duties with the Americorps NuCops program. There is no evidence that Mr. Ellerson was advised that it was appropriate to be paid by both programs for the same responsibilities. In doing so, Mr. Ellerson committed a Level 5 offense, punishable by termination of employment.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the City of Clearwater Civil Service Review Board enter a Final Order terminating the employment of Gary Ellerson.

DONE and ENTERED this 8th day of April, 1996 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 8th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4250

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

Respondent

The Respondent did not file a proposed recommended order.

COPIES FURNISHED:

H. Michael Laursen Human Resource Director City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Leslie K. Dougall-Sides, Esquire City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Mr. Johnny Long, Representative c/o Mr. Gary Ellerson

(address of record)

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: 95-004250

Orders for Case No: 95-004250