STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN W. STEPHENS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-184

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on May 14, 1976, in Pensacola, Florida.

APPEARANCES

For Petitioner: Benjamin R. Patterson

1215 Thomasville Road Tallahassee, Florida

For Respondent: Jack Pierce

Crown Building

202 Blount Street Tallahassee, Florida

On or about October 13, 1975, Norman W. Stephens, an officer with the Florida Marine Patrol, was advised that he was being suspended for three days from the Patrol for allegedly falsifying records. By letter dated October 21, 1975 Officer Stephens was advised that he would be suspended on November 1, 2, and 3, 1975. On or about October 28, 1975 Officer Stephens took an appeal of his suspension to the Career Service Commission. By letter dated January 28, 1976 the Career Service Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct a hearing. The hearing was originally scheduled to be conducted on April 9, 1976, by notice dated March 23, 1976. At the request of the Department of Natural Resources the hearing was continued, and was scheduled to be conducted on May 14, 1976, by notice dated April 13, 1976.

The issue presented at the hearing was whether Officer Stephens was properly suspended from the Marine Patrol of the Division of Law Enforcement of the Department of Natural Resources for falsifying employment records. The Department of Natural Resources called the following witnesses: Captain Lewis

E. Zangas, a captain in charge of Area Eleven of the Florida Marine Patrol; William D. Clenny, a sergeant and field supervisor in Area Eleven of the Florida Marine Patrol; John Lalander, a lieutenant assigned to Area Eleven of the Florida Marine Patrol; and Nell Butler, a radio teletype operator with the Florida Marine Patrol. The following witnesses were called on behalf of Officer Stephens: Carl Richter, an officer employed by the Florida Marine Patrol; James

1. Pfeiffer, an officer employed by the Florida Marine Patrol; Erwin A. Ulm, an officer employed by the Florida Marine Patrol; and David Miller Gay, an officer employed by the Florida Marine Patrol. Agency Exhibits 1 - 4 were offered into evidence by the Department of Natural Resources, and were received. The parties were invited to submit Legal Memoranda, and Proposed Recommended Orders.

   Officer Stephens submitted a Post-Hearing Memorandum in support of his position.

   
   

   There were serious factual discrepancies in the testimony presented at the hearing. In resolving these factual conflicts, due regard has been given to the credibility of the witnesses, including the demeanor of the witnesses on the witness stand, and the inherent credibility of their testimony.

   
   

   FINDINGS OF FACT

   
   

   1. Officer Norman W. Stephens has been an employee of the Florida Marine Patrol, assigned to Area Eleven for approximately five years. On or about November 13, 1975, Officer Stephens was advised that he was being suspended from his employment for three days for allegedly falsifying employment records. (Agency Exhibit 4). The suspension was implemented by letter dated October 21, 1975, and Officer Stephens was suspended from employment on November 1, 2, and 3, 1975. (Agency Exhibit 3). By letter dated October 28, 1975, Officer Stephens appealed his suspension to the Florida Career Service Commission. By notice dated April 13, 1976 a hearing was scheduled before the undersigned. The hearing was conducted on May 14, 1976.

      
      

   2. On September 13 and 14, 1975 Officer Stephens was assigned to the night shift. The night shift ran from 8:00 P.M. until 5:00 A.M. The night shift on September 13 ran from 8:00 P.M., September 13, until 5:00 A.M. on September 14. The night shift on September 14 ran from 8:00 P.M. on September 14 until 5:00

      A.M. on September 15. There had been a number of boat thefts in Area Eleven, and Officer Stephens was assigned to investigate the thefts by patroling the waterways in a Marine Patrol boat. Officer Stephens had been explicitly instructed to put in at least six hours per shift on the water due to the boat thefts. The weather was not such on either day as to prevent Officer Stephens from placing his boat in the water.

      
      

   3. At midnight on the September 13th shift, Officer Stephens' boat was parked at the Department of Pollution Control where the boats are housed. The boat was on its trailer and was not in the water. Officer Stephens' boat and car were at his home at 3:30 A.M. on September 14, during the September 13th shift, and were still there at 4:30 A.M.

      
      

   4. At midnight on the September 14th shift Officer Stephens' boat was parked at the Department of Pollution Control on its trailer. At approximately 2:15 A.M. Officer Stephens picked up his boat and met with a Gulf Breeze Police Department car. Officer Stephens and the Gulf Breeze policeman met another Gulf Breeze police unit at another boat ramp. Officer Stephens went from there to his home, and arrived at 3:17 A.M. At 4:12 A.M. through 4:45 A.M. his boat and trailer were still at his home.

      
      

   5. Officer Stephens did not put in a full work shift, and did not perform the duties expected of him on either September 13 or September 14.

      
      

   6. On or about September 18, 1975, Officer Stephens turned in a law enforcement time record to the administrative offices of the Florida Marine Patrol, Area Eleven. The time record reflects the hours worked by Officer Stephens from August 22, 1975 through September 18, 1975. The sheet reflects

      that Officer Stephens worked a full work shift on September 13, and September 14, 1975. The sheet was filled out by Officer Stephens. He signed it, certifying that the times and hours recorded were accurate.

      
      

   7. There was a sharp conflict in the testimony as to the nature of instructions given by the managerial and supervisory personnel of Area Eleven to the officers respecting how law enforcement time records should be kept. All managerial, supervisory, and administrative personnel who testified stated that the officers were to reflect the actual hours they worked on the records. All officers who testified stated that they had been instructed to reflect the hours of their shift on the record rather than the hours actually worked. Had instructions given by management officials clearly required that actual hours worked rather than hours of the shift be set out, it is incredible that four officers would be willing to testify under oath that they filled out the records so as to reflect the hours of the shift. Management had within its power the ability to clarify the situation with a written memorandum. The fact that at least several officers were reflecting their shift on the records placed management on notice that hours actually worked were not being reflected. It is therefore concluded from the testimony that officers were either expected to reflect the hours of their shift on the time records, or that a pattern developed under which officers had reason to believe that reflecting the hours of the shift would be acceptable to management. If an officer missed his meal hour due to the press of his duties, he could make up that time by going home from his shift an hour early. Under the pattern that developed, he would nonetheless reflect the hours of his shift, including a lunch hour, on the time records.

      
      

   8. The testimony will support a finding that it was acceptable for an officer to reflect his shift on the time records rather than actual hours worked so long as the officer performed his assigned duties. The testimony will not support a finding that an officer who did not perform the duties assigned to him, including his duty to put in a full work day, could nonetheless reflect the hours of his shift on his time record as if he had actually performed his duties. Officer Stephens filled out his time record by reflecting that he worked a full work shift on September 13 and 14, 1975. This was a falsification of facts. Officer Stephens did not work a full work shift, did not perform the duties that were assigned to him and expected of him, and shirked his duties on those dates.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

      
      

   10. The burden of establishing that a career service employee has falsified employment records lies with the agency.

       
       

   11. Falsification of time records by an employee to reflect that the employee worked a full work shift, when in fact the employee was derelict in his duties, and did not work a full shift justifies a three-day suspension from employment without pay.

       
       

   12. The decision of the Department of Natural Resources suspending Officer Stephens from his employment with the Florida Marine Patrol, Division of Law Enforcement of the Department of Natural Resources, was proper and should be affirmed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the three-day suspension without pay of Officer Norman W. Stephens from his employment with the Florida Marine Patrol, Division of Law Enforcement of the Department of Natural Resources be affirmed.

DONE and ENTERED this 20th day of July, 1976, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1976.

COPIES FURNISHED:

Mr. Conley M. Kennison State Personnel Director

Department of Administration

530 Carlton Building Tallahassee, Florida 32304

Benjamin R. Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida

Jack Pierce, Esquire Crown Building

202 Blount Street Tallahassee, Florida

Docket for Case No: 76-000184

Orders for Case No: 76-000184