STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOAN OTTO, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1337

) SOUTH FLORIDA REGIONAL PLANNING ) COUNCIL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came before the undersigned Hearing Officer on the appeal of the Petitioner from her dismissal from the employment of the South Florida Regional Planning Council. A hearing was held in this matter on August 10, 1976, in Miami, Florida.

APPEARANCES

For Petitioner: Myron Gold, Esquire

4651 Ponce de Leon Boulevard Coral Gables, Florida 33146

For Respondent: Allan Milledge, Esquire

Milledge, Horn & Hermelee

2699 South Bayshore Drive, Suite 900E Miami, Florida 33133

Ms. Otto was dismissed from her position on June 11, 1976. After a request by her for the specific reasons of her dismissal she was furnished with a statement by Mr. Barry Peterson, Executive Director of the South Florida Regional Planning Council, which recited certain provisions of the Personnel Policy of that Council which Ms. Otto was alleged to have violated. Those were:

"(A) That the employee is negligent, incompetent, or inefficient in the performance of his duty.

(R) That the employee is antagonistic towards other Council employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employees and impairs the efficiency of the Council service.

(U) That the employee has been habitually tardy in reporting for duty or has been absent frequently from duty during regular hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by his superior."

Ms. Otto was also alleged to have committed certain other misconduct which need not be recited here as such allegations were stricken without objection after the hearing in this case.

FINDINGS OF FACT

1. Ms. Otto began her employment with the Council on April 8, 1975, when she was hired as an Assistant Director. At that time she was one of two assistant directors and was immediately below the Executive Director in responsibility. After Monroe County was declared am area of Critical State Concern under Chapter 380, Florida Statutes, Ms. Otto was directed to provide staff assistance to Monroe County to assist them in complying with that designation. After Mr. Barry Peterson, Executive Director, Ms. Otto was the lead staffer of the Regional Planning Council who had responsibility in this area. Mr. Peterson in his testimony related that towards the end of June of 1975 Ms. Otto was directed to attend a meeting of the Monroe County Commission to discuss aspects of complying with the designation of Monroe County as an area of Critical State Concern. Ms. Otto did attend this meeting and reported back to Mr. Peterson that the meeting had gone well. Subsequently, Mr. Peterson testified that he learned that the meeting had not gone well and furnished a news clipping which dealt with the meeting of the County Commission which article indicates that Ms. Otto had made several statements which offended the County Commissioners.

   
   

2. Apparently, on the basis of the report, Mr. Peterson received concerning Ms. Otto's statements at the County Commissioners' meeting, her responsibilities were changed in the Regional Planning Council to give her less contact with the public.

   
   

3. With regard to Ms. Otto's alleged behavior at the Monroe County Commissioners' meeting, it must be noted that no direct evidence was presented at this hearing which would substantiate a finding that she acted improperly before the Commissioners. No testimony was presented from any person who was at that meeting and this Hearing Officer cannot make any finding of fact based on pure hearsay alone [Sec.120.58(1)(a), F.S.]. Furthermore, it must be assumed Ms. Otto was authorized to speak as she thought proper at this meeting and should some County Commissioners have taken offense at her statements does not indicate that such statements were automatically improper. In any case, no evidence was presented regarding this meeting which substantiates a finding of fact relating to the specific acts of misconduct charged against Ms. Otto.

   
   

4. Another incident which presumably reflected upon Ms. Otto's ability and personality involved an incident where she expressed displeasure with certain comments made by a chairman of a volunteer citizens group. Ms. Otto stated she was in favor of confronting that person and challenging him on what she considered to be "sexist" remarks; however, it was decided by others in the Council that this should not be done. Ms. Otto did not confront this individual on her own. This Hearing Officer is uncertain as to whether any conclusion can be drawn regarding this incident. It certainly does not lend credence to any of the specific charges or reasons stated by the Council for firing of the Petitioner. All that appears to have happened is that Ms. Otto expressed her opinion and others disagreed with her. She did not act on her own nor cause any unpleasantness between the individual who made these remarks and the South Florida Regional Planning Council.

5. In any case, Ms. Otto was given new duties and titled "Program Director for Management Services". She was given a list of responsibilities by Mr. Peterson, the Executive Director. These responsibilities included writing grant applications, preparing drafts of a cash flow sheet, and various other incidental duties. According to Mr. Peterson, Ms. Otto in these new responsibilities required specific instructions from him for much of what she did. He stated she did not do grant applications until he told her to and the one cash flow sheet she prepared was incomplete. Much of the above testimony was vague in that it was uncertain as to whether Ms. Otto had sufficient information at her immediate disposal to prepare a complete cash flow sheet and nothing appears to be inherently wrong with an employee waiting to be told what to do. Certainly, Ms. Otto displayed a lack of initiative, but this could be due to a lack of training in these new areas of responsibility. The most empirical testimony presented regarding Ms. Otto was that of her attendance at the Regional Planning Council. A scheduled breakdown of her absences, both with permission, without permission and unexplained was presented at this hearing. A chart, plus leave records were admitted as Counsel's Exhibit No. 5, which broke down Ms. Otto's attendance between April 5 and May 14, 1976.

   
   

6. This exhibit was prepared by compiling the leave records and other notes kept by the staff of the Council with regard to Ms. Otto's attendance at the Council office. A compilation of approved and unapporved leave slips was taken from the records of that Council which was noted on the first page of Exhibit No. 5. Also, records kept by the receptionist as to Ms. Otto's. attendance were used to determine her "hours out of office." The remainder of the time unaccounted for by approved or unapproved leave slips completed the category captioned "No leave slip" which appears on the first page of this exhibit.

   
   

7. The policy of the Regional Planning Council was that employees were requested to advise the receptionist where they were going upon leaving the office during working hours or where they would be if they would be coming in late. In this fashion, employees' whereabouts could be accounted for. This policy was not in any written form, but was an "understanding among the employees." It was apparently a practice that was generally followed by all Council employees. Actually, therefore, the hours captioned "No leave slip" indicates more accurately time Ms. Otto spent out of the office which was not specifically accounted for. It is entirely conceivable for all of the 36 1/2 hours listed for her in this category that she was out of the office on official business and merely did not advise the receptionist where she was going. No affirmative evidence was presented that Ms. Otto actually did not spend any of this time in an official capacity. Furthermore, there was no question that Ms. Otto was a professional employee of the Council and it would be unrealistic to expect a professional employee of the Council to work a time clock type schedule, particularly in view of the evidence that Ms. Otto spent considerable amounts of time at home and after hours and on weekends devoted to Council work. It is true that Ms. Otto apparently took 17 1/2 hours leave which was not approved by Mr. Peterson, her supervisor. However, with regard to the practice of Mr. Peterson in approving and not approving leave, testimony was clear that he routinely approved requests by all employees.

   
   

8. What the evidence against Ms. Otto in this regard boils down to is that she neglected to get advance approval for leave during this period of time, which approval would customarily had been given. Had the Council thought this to be a serious infraction at the time, it appears certain that Ms. Otto would have been confronted with questions about her attendance and leave and been advised that she must more strictly account for her time and follow customary

   procedures in taking leave. However, this was not done and apparently the first Ms. Otto heard that there were questions about her attendance was when he was given a statement from the Council advising her of the reasons she was fired.

   
   

9. On Ms. Otto's behalf several former employees of the Council testified that they found her performance at the Regional Planning Council to be an inspiration and a model of efficiency and administration. Ms. Otto on several occasions worked long hours, weekends and evenings on particular projects she was assigned and apparently did an extremely satisfactory job. Several employees stated that she was extremely helpful to them, displayed initiative and a very cooperative attitude.

   
   

   CONCLUSIONS OF LAW

   
   

10. The proper test for the existence of grounds for the firing of a public employee is a finding of good cause. Arnold v. State 2 So.2d 874. By failing to sustain that burden, the Council must reinstate the employee.

RECOMMENDATION

It is the finding of this Hearing Officer that the Respondent, South Florida Regional Planning Council, has failed to present by clear and convincing evidence that the Petitioner, Joan Otto, was fired for good cause. It is therefore RECOMMENDED that she be reinstated to her former position with back pay.

DONE and ORDERED this 30th day of August, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

COPIES FURNISHED:

Myron Gold, Esquire

4651 Ponce de Leon Boulevard Coral Gables, Florida 33146

Allan Milledge, Esquire Milledge, Horn & Hermelee 2699 South Bayshore Drive Miami, Florida 33133

================================================================= AGENCY FINAL ORDER

================================================================= SOUTH FLORIDA REGIONAL PLANNING COUNCIL

IN RE:

DISMISSAL OF JOAN OTTO, CASE NO. 76-1337

/

ORDER APPROVING DISMISSAL

This matter came before the duly constituted Appeal Board of the South Florida Regional Planning Council (hereinafter "Council), pursuant to Sec. 7.4, Personnel Policy and Procedures 1/ on the appeal of Joan Otto from her dismissal from the employment of the Council.

Joan Otto was dismissed by the Executive Director of the Council on June 11, 1976. She requested and received on July 2, 1976, a statement of the reasons for her dismissal. On July 9, 1976, Ms. Otto requested a hearing on the matter of her dismissal and the Appeal Board directed that the appointment of a Hearing Examiner he requested. A hearing was held before Kenneth Oertel, Director of the Division of Administrative Hearings, State of Florida, on August 10, 1976. On August 30, 1976, the Hearing Examiner issued his Recommended Order which recommended the reinstatement of Ms. Otto.

After due notice, the matter was then heard 2/ by the Appeal Board on October 14, 1976, the Appeal Board members having been previously supplied with copies of the transcript of the proceedings before the Hearing Examiner, the exhibits and the entire record. On October 14, 1976, the Appeal Board heard argument of counsel, and considered the matter.

CONCLUSIONS OF LAW

In his Recommended Order, the Hearing Officer determined that: "the proper test for the existence

of grounds for the firing of a public employee is a finding of good cause." Arnold v. State, 2 So.2d 874 (1941).

This standard is inapplicable to the instant case. The Arnold case dealt with an employee covered by the applicable civil service system with its accompanying standards for disciplinary action against an employee. SFRPC employees are not so covered.

Florida's State Career Service System, established by Chapter 110, Florida Statutes, provides that an employee may be dismissed only for "cause." (Sec.

110.061, F. S.)

The State Career Service System, however, is inapplicable to special statutory entities. Op. Atty. Gen. 073-72, February 27, 1973. Even assuming that the State Career Service System standards were applicable to the Council, Ms. Otto's position probably would have been an exempt position pursuant to Sec. 110.051(2)(b), F. S.

A second system for the protection of employee rights is simply the Fourteenth Amendment of the United States Constitution.

"Unlike a civil service system, the Fourteenth Amendment to the Constitution

does not provide job security, as such, to public employees. If, however, a discharge is activated by consideration of race, religion or punishment of constitutionally protected conduct, it is well settled that the State's action is subject to federal judicial review." Metropolitan Dade County v. Peterson, 3rd Dist. Court of Appeal of Florida, 311 So.2d 110 (1975).

A public employee not covered by civil service has a right not to be fired for reasons of personal bias. Reasons for dismissal of an employee are limited to reasons relating to the performance of the work of the public agency. "Proof" of good cause" is not required.

The Appeal Board therefore rejects the conclusions of law contained in the Recommended Order of the Hearing Examiner and hereby affirms the discharge of Ms. Otto.

FINDINGS OF FACT

The findings of fact contained in the Hearing Examiner's Recommended Order were based upon the erroneous conclusions of law as to the standard required for dismissal of an employee of the Council. Accordingly, the Appeal Board rejects these findings in that the findings of the Hearing Examiner, when applied to the appropriate standard for employee disciplinary action, are not supported by competent substantial evidence.

Ms. Otto was furnished with a statement by Mr. Barry Peterson Executive Director of the Council, as to the specific reasons for her dismissal, citing certain provisions of the Personnel Policy and Procedures which she was alleged to have violated. Those were:

1. That the employee is negligent, incompetent, or inefficient in the performance of his duty.

   
   

2. That the employee is antagonistic towards other Council employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employees and impairs the efficiency of the council service.

   
   

3. That the employee has been habitually tardy Ill reporting for duty or has been absent frequently frown duty during regular hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by his superior.

The Appeal Board finds, after a complete review of the record compiled before the Hearing Examiner that there was competent substantial evidence to support the action taken by the Executive Director in dismissing Ms. Otto from her employment by the Council based upon violation of the cited provisions of the Personnel Policy and Procedures.

Several instances raised in the record indicate that Ms. Otto was negligent, inefficient and incompetent in the performance of her duties. The first instance involved a presentation by Ms. Otto on behalf of the Council to the Board of County Commissioners of Monroe County, Florida wherein remarks made

by Ms. Otto to the Board were improper and contrary to the objectives of the Council. The second instance occurred following a meeting of the Coastal Area Advisory Committee when Ms. Otto sought to force a confrontation with the Chairman of the Committee over allegedly anti-feminist remarks. Mr. Peterson testified below following this incident that he changed Ms. Otto's position with the Council because:

". . .[he] could not trust her to deal with the politicians on the outside or inside groups in this significant kind of role. . ." Transcript of Proceedings before Hearing Examiner, page 23.

Further, the testimony of several Council employees indicates that Ms. Otto did not perform effectively in carrying out the duties assigned to her.

Refusals to perform certain tasks without direct orders, even though such tasks were within her general area of responsibility; failure to cooperate with fellow employees in meeting deadlines for certain projects; and a general lack of communication between Ms. Otto and other Council employees, are all evident from the testimony before the Hearing Examiner. The evidence, when taken as a whole clearly justifies the action of the Executive Director with respect to Grounds 1 and 2 of the Statement of Reasons for Dismissal.

Finally, the recurring absenteeism of Ms. Otto justifies her dismissal. Council Exhibit 5 of the Administrative Hearing shows that during a six-week period between April 5, 1976 and Nay 14, 1976, out of 80 hours for which Ms. Otto was out of the office, 54 of those hours constituted unapproved leave and for 36 1/2 hours of the unapproved leave, no time slip was submitted contrary to the policies affecting all Council employees requiring a signed leave slip.

There was also testimony by employees responsible for timekeeping, that at least a portion of the time which was unapproved leave by Ms. Otto, was designated by Ms. Otto to be credited to work projects as though the time had been spent working on such projects. For instance, Ms. Otto had a standing appointment with a physician on Friday mornings. Yet, the receptionist for the Council testified that Ms. Otto reported a full 8 hours of chargeable time on days when she was out of the office for that appointment. Such abuses need not be tolerated by an employee in a professional capacity. Ms. Otto's extensive unapproved absenteeism constitutes adequate grounds for dismissal pursuant to the Council's Personnel Policy and Procedures.

It is quite clear that adequate grounds existed for the dismissal of Ms. Otto for any or all of the reasons given by Mr. Peterson for his action. The testimony and exhibits of the administrative hearing clearly show violations of the provisions of the Personnel Policy and Procedures of the Council by Ms. Otto and there has been no showing of any personal bias which could have motivated Mr. Peterson's action in dismissing Ms. Otto.

Accordingly, the action of the Executive Director in dismissing Joan Otto from her employment with the South Florida Regional Planning Council is hereby approved.

DATED: October 18, 1976

VIRGINIA S. YOUNG, Chairman

Appeal Board of the South Florida Regional Planning Council

WILLIAM RAY HODGES, member

Appeal Board of the South Florida Regional Planning Council

ENDNOTES

1/ The SFRPC was created by an Interlocal Agreement dated

July 1, 1974, pursuant to Section 163.01, Florida Statutes. Under this authority, the Council promulgated rules which are contained in Chapter 29 J-1, Florida Administrative Code. Section 29 J-1.08(6) authorizes the Council:

"to employ and set the compensation of the executive director, who shall serve at the pleasure of the Council. The executive director shall employ and remove professional, technical, or clerical

staff as may be necessary to accomplish the work authorized by the Council.

Section 29 J-1.08(14) permits the Council to prescribe the

terms and conditions for the employment of officers and employees. Accordingly, the Council established its Personnel Policy and Procedures which were most recently revised on October 6, 1975 by Council action.

Section 7.3 of the Personnel Policy and Procedures provides:

"The executive director may suspend, demote, or dismiss any employee for insufficient or negligent performance of duties, inability to perform duties, insubordination, violation of Council policies, misconduct, conduct unbecoming a public employee, or

for other reasonable cause."

In addtion, Appendix B of the Personnel Policy and Procedures contains an extensive list of reasonable causes although dismissal is not limited to the enumerated causes.

Pursuant to Section 7.3, quoted above, it is the executive director who has the initial authority to dismiss an employee of the Council. Section 7.4 provides for appeals. The Appeal Board composed of the chairman of the Council and two members appointed by the chairman, shall approve or disapprove of any action of the executive director with regard to dismissal of an employee. If the Appeal Board approves of the dismissal, the dismissal is final.

2/ Appeal Board member, Harvey Ruvin, took no part in the consideration of this appeal.

Docket for Case No: 76-001337

Orders for Case No: 76-001337