STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY BENTON, )

)

Petitioner, )

)

vs. ) CASE NO. 77-043

)

DEPARTMENT OF OFFENDER ) REHABILITATION; CAREER SERVICE ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the above styled cause was heard in Room 104, Collins Building, Tallahassee, Florida, on March 8, 1977, at 10:00 A.M. by Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Ben Patterson, Esquire

1215 Thomasville Road

Tallahassee, Florida 32303

For Respondent: Earl H. Archer, Esquire

Department of Offender Rehabilitation 1311 Winewood Boulevard

Tallahassee, Florida 32301 ISSUE

Whether the suspension of Gary Benton, Petitioner, was for good cause shown as indicated in the letter of suspension dated September 2, 1976.

FINDINGS OF FACT

1. The Petitioner, Gary A. Benton, is an employee of the Department of Offender Rehabilitation.

   
   

2. The Petitioner was suspended for fifteen (15) working days without pay effective August 31, 1976. The suspension was confirmed by written notice on September 2, 1976. The suspension was for (1) damaging and abusing a state vehicle by driving it off of an established pathway into a ditch, (2) driving the said vehicle at nighttime with its headlights off, (3) giving false testimony regarding the incident.

   
   

3. The Petitioner admitted that he was driving the vehicle without 'lights' and that he drove it into the ditch. The vehicle could not be removed until the next day and as a result of the accident, the front shock absorbers

   and transmission cooling line had to be replaced and the radiator required repairing. The Petitioner denied giving false reports to his supervisors. The Respondent alleged that the Petitioner had said that Lieutenant Neal and Lieutenant Johnson, employees, had instructed him not to drive with the lights on while on perimeter security at night. The employer alleged that Petitioner had told the superintendent and two other people that Mr. Houseal, another employee, had told him that he, Mr. Houseal, had been "chewed out" for driving with lights on.

   
   

4. A written memorandum was posted on the instruction board which all employees had been instructed to read periodically. The August 4th memorandum instructed all employees to protect vehicles and noticed them not to drive too fast and not to get off the regular path.

   
   

5. At briefings in which the employees were instructed orally, the employees, including Petitioner, were instructed not to take the state vehicles off the perimeter road. The perimeter road is a dirt road outside the prison fence. There is only one perimeter road at the Marion Correctional Institution where Petitioner worked and the employees knew or should have known where the perimeter road was located. The field around the correctional institution was a rough plowed hayfield knee deep in hay. The ditch into which the Petitioner drove was approximately three (3) feet wide and located approximately a hundred and seventy-one (171) feet from the perimeter fence which the perimeter road circled.

   
   

6. On the night of the incident the Petitioner drove a state vehicle off the perimeter path approximately a hundred and seventy (170) feet proceeding through the rough plowed hayfield toward the car of an employee whom he was to replace for the work shift. The post Petitioner was to fill was known as the North Security Post, a position well known to the supervisors and the other employees of equal rank with Petitioner. As Petitioner proceeded through the rough field of hay in the state vehicle with the lights off, he drove the vehicle into the ditch from which it could not be extricated that night.

   
   

7. Upon learning of the incident, the superintendent of the prison asked the employee, his supervisor and two (2) other individuals to his office to discuss the incident. In the presence of these witnesses the employee stated to the supervisor that he had been instructed to drive the state vehicle without lights on perimeter security by two (2) other employees, Lieutenant Neal and Lieutenant Johnson. Upon investigation of this statement, Lieutenant Neal and Lieutenant Johnson denied that they had instructed any employee including Petitioner to drive without lights while on perimeter security.

   
   

8. The Hearing Officer further finds:

   
   

   1. Gary Benton was present at oral briefings in which the employees were instructed not to drive any state vehicle off the perimeter road. The written memorandum instructing the employees not to drive a state vehicle off the perimeter road was posted on the instruction board which all employees were responsible to reads and Petitioner either did read or should have read said written instruction.

      
      

   2. Lieutenant Neal and Lieutenant Johnson did not direct the Petitioner to drive a state vehicle at night without lights. The Petitioner stated that he had received such instructions from the supervisor. The ditch into which the Petitioner drove the car was well off the route he should have

      been traveling in order to get to his post for the night, the terrain was rough and the ditch was overgrown with high weeds.

      
      

   3. The area in which the accident occurred was unsuitable for the driving of a vehicle and other employees testified that they would not have driven their personal automobile into such an area and the driving of a state automobile in said area was abusive of state property. Petitioner knew or should have known of the rough terrain inasmuch as Petitioner also occupied the post to which he was proceeding the night of the incident during daylight hours. The testimony given by the seven (7) witnesses for the Respondent is more credible than the testimony given by the Petitioner, Gary Benton.

      
      

   4. The actions of the Petitioner in driving a state vehicle across a rough plowed field and into a ditch and damaging the vehicle is just cause for suspension. The report to the superintendent that other employees and supervisors had instructed Petitioner to drive without lights was false and a just cause for suspension.

      
      

      CONCLUSIONS OF LAW

9. Rule 10B-13.03(34), Florida Administrative Code, provides: "Failure to follow oral or written

   instructions may be punished on the first

   occurrence by written reprimand up to

   30 days suspension or dismissal and for a second occurrence dismissal."

   
   

10. Petitioner Benton failed to follow the oral and written instructions regarding the driving of a state vehicle when he proceeded across the field and drove the vehicle into a ditch.

11. Section 10B-13.03(29), Florida Administrative Code, provides that: "Destruction of evidence or giving false

    testimony may be punished by written reprimand up to 30 days suspension or dismissal and a second occurrence the employee may be dismissed."

    
    

12. Petitioner Benton gave false testimony when he stated his supervisors had told him to drive with the lights off at night.

13. Rule 10B-13.03(28), Florida Administrative Code, provides that: "Destruction or abuse of DC property

    or equipment on the first occurrence the penalty may be a written reprimand, up to 30 days suspension or dismissal and on the second occurrence dismissal."

    
    

14. The Petitioner abused the state vehicle by driving it across a rough pasture land and by driving the vehicle into a ditch.

RECOMMENDATION

Sustain the suspension without pay.

DONE and ORDERED this 10th day of May, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Earl H. Archer, Esquire

Department of Offender Rehabilitation 1311 Winewood Boulevard

Tallahassee, Florida 32301

Ben R. Patterson, Esquire 1215 Thomasville Road

Tallahassee, Florida 32303

Mrs. Dorothy Roberts Appeals Coordinator

Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 77-000043

Orders for Case No: 77-000043