STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN CLARKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 77-406

)

DEPARTMENT OF AGRICULTURE, )

DIVISION OF FORESTRY and )

CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, and administrative hearing was held in Room 104, Collins Building, Tallahassee, Florida on September 12, 13 and 14, 1978 before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Clinton H. Coulter, Jr.

DUVALL & COULTER

118 South Gadsden Street Tallahassee, Florida 32301

For Respondent: Walter Kelly

Assistant Attorney General The Capitol Building Tallahassee, Florida 32304

ISSUE

Whether the demotion of the Petitioner by the Respondent from an Airplane Pilot I to an Engineering Technician II position was supported by competent substantial evidence and complied with the Florida Statutes and rules and regulations.

FINDINGS OF FACT

1. Petitioner John Clarkson was demoted by Respondent Department of Agriculture, Division of Forestry, after Petitioner failed to receive a satisfactory rating after having received ratings of "conditional" for a period of six months. The ratings were discussed and signed by the Petitioner. By certified letter, return receipt requested, dated April 15, 1976, the Petitioner was formally advised that the Commissioner of the Florida Department of Agriculture had approved his Division Director's recommendation that Respondent be demoted.

   
   

2. Petitioner filed his appeal of the Respondent's action on May 6, 1976. On May 18, 1976, the Petitioner was notified by the Career Service Commission

   that his appeal had been accepted. Petitioner twice requested a continuation of the requested administrative hearing and subsequently filed a Motion for Default and Directed Verdict or Judgment on the pleadings. A response was filed and thereafter, the Motion was withdrawn by Petitioner.

   
   

3. Petitioner is a 30-year State employee and has served more than twenty

   (20) years with the Department of Agriculture. He currently is employed by Respondent as an Engineering Technician II.

   
   

4. The Petitioner admits that the demotion of Aircraft Pilot I to Engineering Technician II was procedurally correct and the essence of his argument against the demotion is that the Respondent concentrated on finding "little picky things" about the employee and used these to fortress his demotion.

   
   

5. Petitioner contends:

   
   

   1. That matters in the Petitioner's personal record before 1975 should not be considered.

      
      

   2. That the major allegations of Respondent were related to his non- flying duties and that the demotion concerned his duties as an Airplane Pilot I.

      
      

   3. That the charges of tardiness, wasting time, inability to perform non-flying duties were, even if supported by competent and substantial evidence, immaterial to the issue.

      
      

   4. That Petitioner's actions in relation to a ferrying plane trip to California in 1975 did not endanger the life of colleagues or aircraft; that Petitioner was justified in his takeoff from an airport on a hot day and on his leaving the group on its return to Tallahassee on the said trip.

      
      

   5. That inaccuracies in reporting; fires, which was a major part of his duties, were not confined to Petitioner and that he considered it better to be "safe than sorry" than save a little money when reporting fires, and that further, he "called them as he saw them."

      
      

   6. That the supervisors and superiors failed to meet with Petitioner as required and were more intent on building up Petitioner's deficiencies than in trying to help him.

      
      

6. Respondent contends:

   
   

   1. That Petitioner failed to follow instructions of his supervisors.

      
      

   2. Petitioner failed to adequately perform duties as fire control spotter pilot, which resulted in crews being dispatched unnecessarily.

      
      

   3. That Petitioner's ratings, letters of reprimand, memorandums, throughout his career showed he failed to follow instructions in performing his job adequately.

      
      

7. The Hearing Officer further finds:

   
   

   1. Petitioner presented evidence and testimony relative to his employment prior to 1975. Contrary to the contentions of the Petitioner, the position of Airplane Pilot I includes not only flying duties and

      responsibilities of the fire patrol, it includes much paper work such as drawing and tracing and revising plans, revising maps, making maps, handling orders, disseminating fire weather forecasts to field offices, and the coordination of related incoming reports. Work with others is an integral part of the employment.

      
      

   2. An examination of the voluminous records submitted and entered into evidence at the hearing show that the Petitioner has had an employment history of conflict with his employer for a number of years and the same type of criticism continued from year to year up to the date of Petitioner's demotion. The Respondent presented evidence to show that Petitioner had been sent memorandums calling his attention to numerous complaints about the quality of his work and relationship with other people including many other employees of Respondent. Evidence was submitted to show Petitioner's repeated failure to follow instructions of his superiors.

      
      

      Evidence was submitted showing that during the years of Petitioner's employment there were some "conditional" ratings; some ratings below satisfactory; one previous demotion; memorandums citing Petitioner for failure to perform duties adequately; complaints from passengers, which ultimately resulted in the revision of Petitioner's duties so that he did not carry passengers.

      
      

      Taken as a whole, the various memorandums concerning Petitioner show that contrary to the contention of Petitioner, the supervisors and superiors endeavored to work with Petitioner and were consistently trying to fit him into the work organization so that he could work within his capacities. Other employees were moved within the Division to fill in where the Petitioner was deficient.

      
      

   3. The charges of tardiness, wasting time, poor work product, go directly to the employment of the Petitioner and no competent evidence was submitted to show that these charges were inaccurate.

      
      

   4. It was not conclusively shown that Petitioner actually endangered the lives of colleagues or aircraft on a September, 1975 flight to California from Florida during his ferrying duties, however Petitioner failed to follow prior instructions and caused confusion among the other members of the group on that trip. On one occasion he left the group without permission of the designated leader and the group was forced to change its plans and land at a different location. Petitioner failed to follow instructions, left the group and teak off and had to be called back. On the return trip to Tallahassee he left the group and returned to Tallahassee before the others contrary to flight plans that the group remain together. A hot day and eagerness to return home from a trip is insufficient reason to disobey instructions of supervisors.

      
      

   5. The fire logs show that Petitioner made relatively more errors in reporting fires than the other reporters and evidence was shown that errors wasted money and caused loss of needed services elsewhere.

      
      

      The report of fires was a central part of Petitioner's employment

      duties.

      
      

   6. Petitioner is an experienced and evidentally, good pilot, but the

      evidence shows he fails to follow closely the instructions of his supervisors in relation to his duties and is deficient in his non-flying work. He fails to work well with other employees.

      CONCLUSIONS OF LAW

      
      

8. Petitioner's demotion was procedurally correct and pursuant to Chapter 22A, Florida Administrative Code.

   
   

9. The Respondent has shown by a preponderance of evidence that its action of demoting the Petitioner from Airplane Pilot I to Engineering Technician II was justified.

RECOMMENDATION

Affirm the action of the Agency in demoting Petitioner.

DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Walter Kelly, Esquire Mrs. Dorothy Roberts Department of Legal Affairs Appeals Coordinator

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

Tallahassee, Florida 32304

Clinton H. Coulter, Jr., Esquire

DUVALL & COULTER Mr. Jerry Gullo

118 S. Gadsden Street Department of Agriculture Tallahassee, Florida 32301 Mayo Building

Tallahassee, Florida 32304

Docket for Case No: 77-000406

Orders for Case No: 77-000406