vs. ) Case No. 99-2850
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Daniel M. Kilbride, conducted an informal hearing in the above-styled case on January 4, 2000, at Melbourne, Florida.
For Petitioner: Joe D. Matheny, Esquire
For Respondent: Susan K. W. Erlenbach, Esquire
Erlenbach & Erlenbach, P.A.
Whether Petitioner, following his conviction for driving under the influence of alcohol, was properly terminated from his employment by Respondent on January 29, 1999,.
Whether Petitioner's termination was an unreasonable and too severe disciplinary action under the facts and circumstances of this case.
On May 14, 1999, Petitioner, Lloyd Creel, requested a hearing to contest the termination of his employment by Respondent, Brevard Community College. Respondent advised Petitioner by letter dated May 21, 1999, that he was entitled to an informal hearing and that Respondent would agree to refer the request to the Division of Administrative Hearings. On June 15, 1999, Petitioner filed a Petition for Relief from Employment Decision which was referred to the Division of Administrative Hearings on June 24, 1999. Following a continuance requested by the parties, an informal hearing was held on January 4, 2000.
At hearing, the parties stipulated to certain facts.
Petitioner testified in his own behalf and offered the testimony of one witness and presented two exhibits in evidence.
Respondent presented nine exhibits in evidence. The hearing was recorded but not transcribed. The parties filed Proposed Findings of Fact and Conclusions of Law on January 18, 2000.
Respondent filed a Motion for Authorization to Submit Post- Hearing Affidavit on January 13, 2000; said motion was opposed by Petitioner and said motion was denied by Order dated February 8, 2000. Each parties' proposals have been given careful consideration in the preparation of this Order.
Brevard Community College, Respondent, is a body politic operating as a political subdivision of the State of Florida and
authorized as a public employer to employ personnel and otherwise carry out the mission of the college as prescribed by the Legislature.
Brevard Community College participates in the State Retirement Program as a public employer, but Brevard Community College is not involved in the State Career Service System.
Respondent approves each non-instructional employee's continued employment for the next fiscal year each June, which includes an annual salary and a daily rate of pay. The employment approval provides that should the employee not remain employed through the entire year, the employee's pay is to be adjusted based on the number of days actually worked.
Lloyd Creel, Petitioner, was a full-time employee of Respondent beginning December 17, 1979, and his employment was renewed annually until his termination.
Petitioner had been a full-time employee of the college for a period of approximately 19 years prior to his termination, advancing to the position of maintenance supervisor.
Petitioner's evaluations were consistently satisfactory and above-average during his employment. Creel was never warned, demoted, placed on a probationary status, or given any other disciplinary action whatsoever during his employment by Respondent.
Operating under Chapter 240, Florida Statutes, and based on the recommendation of the District president of the college,
the District Board of Trustees of the Brevard Community College approved Petitioner's continued employment for the fiscal year ending June 30, 1999. Petitioner was notified of his employment approval in June 1998.
Petitioner's rate of pay was $38,700.00 for the 1998- 1999 fiscal year, at Step No. 257 for an annualized salary for a period of 261 days. The daily rate of pay was $148.28.
During his employment with the college, Petitioner accumulated approximately $26,000.00 in sick leave.
Florida law provides sick leave is compensable only in the event of death or retirement from the college.
On or about October 13, 1998, Petitioner was arrested and charged with Driving Under the Influence of Alcohol (DUI), after hours in his private vehicle.
This matter was brought to the attention of officials at Brevard Community College soon thereafter.
After Petitioner was charged with DUI, he discontinued utilizing a college vehicle on the job and used his own vehicle.
Petitioner continued to perform his responsibilities as maintenance supervisor. These included scheduling work, ordering supplies, occasionally viewing work completed by his subordinates on the job site, and attending meetings.
Petitioner's subordinates performed their responsibilities without his direct supervision most of the time.
Petitioner had a temporary permit which allowed him to drive through December 1998. Thereafter, the permit expired.
After Petitioner's driver's permit expired, he had his roommate take him to work and provide his transportation whenever necessary. Occasionally, when he was required to attend a meeting on another campus, he sought and received rides with other Brevard Community College employees.
On January 13, 1999, Petitioner pled no contest to the charge of driving under the influence of alcohol before the County Court of Brevard County, Florida.
The Court adjudicated Petitioner guilty of the charge and sentenced him, inter alia, to six months driver's license suspension. Petitioner was eligible to obtain a business purpose driver's license in March 1999.
Petitioner continued to perform his job functions until January 29, 1999, when he was terminated by letter from Robert E. Lawton, Associate Vice President for Human Resources.
Petitioner protested his termination by writing a letter dated February 9, 1999. He questioned both his termination and the denial of payment for his sick leave.
Following the termination of Petitioner, Respondent immediately employed the services of a replacement for the position of maintenance supervisor. That replacement continues to serve and be employed by the college.
Counsel for Respondent communicated to counsel for Petitioner in writing that the college was willing to submit this dispute to a hearing before an Administrative Law Judge of the Division of Administrative Hearings.
Petitioner was given notice of his rights by the college, together with a summary of the factual and legal policy grounds for his termination on or about May 21, 1999.
On or about June 15, 1999, Petitioner filed a Petition for Relief from the employment decision rendered herein.
The employment of Petitioner as an air-conditioning and electrical maintenance supervisor required Petitioner to transport himself on a regular and periodic basis among the four campuses of Brevard Community College located in Titusville, Cocoa, Melbourne, and Palm Bay, respectively.
The nature of the employment of Petitioner was such that he was required to have a driver's license in order to perform his job properly.
The suspension of Petitioner's driver's license, as a result of his conviction for driving under the influence of alcohol, effectively prevented Respondent from performing his job as maintenance supervisor in that he was not able to travel between the college campuses which span a distance of approximately 50 miles in Brevard County, Florida.
At that time, there did not exist a lateral position at the college to which Petitioner could be transferred pending the restoration of his driving privileges.
A number of college employees, numbering at least three in the recent past, received DUI convictions and have had their licenses suspended. However, they did not suffer a loss of employment as did Petitioner.
The following individuals were convicted of DUI during their employment with Brevard Community College.
Robert A. Anderson was convicted of DUI on December 9, 1994, while he was Associate Vice President of Student Services, College-Wide. He was not terminated, demoted, or otherwise disciplined as a result of his DUI conviction.
Wayne Wilkening was convicted of DUI on November 6, 1995, March 4, 1996, August 19, 1997, and on August 21, 1997, was convicted of violating his probation. Prior to these convictions, Wilkening's driver's license was revoked for ten years. Wilkening's employment, as a groundskeeper, continued until September 7, 1999.
Jay Matheny was convicted of DUI on March 15, 1995, while he was employed by the college as mail
courier. He was transferred after his conviction to a position as Groundskeeper I, where he is still employed today.
Respondent does not have a policy which requires termination in the event of a conviction of DUI and loss of driving privileges. Likewise, the college does not have a policy which requires an employee who is convicted of DUI and who loses driving privileges to be retained or laterally transferred and continued in employment at the college.
Petitioner was terminated because he lost his driver's license for a period of six months, and was unable to satisfactorily perform his job.
Petitioner contends that he could have performed his job using a surrogate driver to transport him from campus to campus. He further argues that termination was too severe and was inconsistent with past practices.
CONCLUSIONS OF LAW
The hearing pursuant to law and pursuant to the stipulation of the parties was conducted as an informal proceeding, pursuant to Chapter 120.57(2), Florida Statutes.
The provisions of Part III, Rule 28-106.301, Florida Administrative Code, are applicable to these proceedings.
Petitioner was an "educational support employee" in that he was employed by a community college as a member of the
maintenance department, and not entitled to a contract, as provided in Section 240.339, Florida Statutes.
Section 240.335(1)(a), Florida Statutes, provides that
Employment of all personnel in each community college shall be upon recommendation of the president, subject to rejection for cause by the board of trustees; to the rules and regulations of the State Board of Education relative to certification, tenure, leaves of absence of all types, including sabbaticals, remuneration, and such other conditions of employment as the State Board of Community Colleges deems necessary and proper; and to policies of the board of trustees not inconsistent with law.
The Brevard Community College District Board of Trustees is empowered to employ and remove personnel and determine conditions of employment. Section 240.319(4)(l)1., Florida Statutes.
The District President is responsible for directing the work of personnel in their positions, qualifications, and suspensions. However, he can only recommend to the District Board the conditions of employment and termination. Sections 240.319(4)(l)1., and 240.335(1)(a), Florida Statutes.
The District president had the legal authority to suspend the employment of Petitioner following his conviction of DUI and following the suspension of his driver's license. However, only the District Board of Trustees has the authority to terminate Petitioner.
The undisputed facts of this case is that Petitioner was arrested for driving under the influence of alcohol on
October 13, 1998. The court adjudicated him guilty of the charge on January 13, 1999, and suspended Petitioner's driver's license for a period of six months.
Petitioner had a temporary driving permit from the time of the arrest until December 1998. He was not eligible to obtain a business purpose driver's license until March 1999.
Due to the nature of his employment, he was required to travel between the four campuses of the college; a valid Florida driver's license was a necessary condition of his employment.
The Respondent could reasonably determine that, due to the loss of his driving privileges, Petitioner was unable to perform his job for the college.
Respondent was also responsible for employing other persons to perform the duties previously assigned to Petitioner, pending action by the District Board to act on District President's recommendation to terminate Petitioner.
However, under the facts and the law of this case, including Petitioner's 19 years of satisfactory service to the college, suspension of Petitioner without pay for the period January 13, 1999, until Petitioner was eligible to obtain a business purposes license is an appropriate penalty.
In view of Respondent's handling of other college employees who received DUI convictions in the recent past and Petitioner's good employment record, termination is too severe a
disciplinary action under the facts and circumstances of this case.
Since the Board offers non-instructional employees one year contracts and Respondent immediately employed the services of a replacement for Petitioner's position, Petitioner had no reasonable expectation of employment beyond June 30, 1999.
RECOMMENDED that the District Board of Trustees of Brevard Community College enter a final order, as follows:
DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2000.
Susan K. W. Erlenbach, Esquire Erlenbach & Erlenbach, P.A.
Joe D. Matheny, Esquire
Thomas E. Gamble, President Brevard Community College 1519 Clearlake Road
Eugene C. Johnson, Chairman District Board of Trustees Brevard Community College 1519 Clearlake Road
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
