STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-535

)

OFFICER JAMES DI STASIO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, F. N. Ayers, held a public hearing in the above styled case on June 13, 1978, at Clearwater, Florida.

APPEARANCES

For Petitioner: Frank X. Kowalski, Esquire

Chief Assistant City Attorney City of Clearwater, Florida Post Office Box 4748 Clearwater, Florida 33518

For Respondent: Cary R. Singletary, Esquire

Suite 1625, Exchange Bank Building Tampa, Florida 33602

By Notice of Suspension served on Officer James Di Stasio, Respondent, the City Manager of Clearwater, Florida, Petitioner, notified Respondent that he had been suspended without pay for a period of three (3) working days. As grounds therefor it is alleged that Respondent violated Rule 14, Section 1(k) of the Civil Service Rules and Regulations of the City of Clearwater by violating Rule

73 of the Clearwater Police Department Rules and Regulations. Specifically it is alleged that Officer Di Stasio removed a tag from an out-of-state motor vehicle and thereafter failed to secure this property and to make a report thereon as required by said Rule 73.

This hearing resulted from Respondent's appeal from the suspension. At the hearing the parties stipulated that Respondent is a Civil Service employee of the City of Clearwater and subject to the Civil Service Rules and Regulations for the City of Clearwater. Two witnesses were called by Petitioner, six witnesses, including Respondent, were called by Respondent and six exhibits were admitted into evidence. Objections to Exhibits 5 and 6 on grounds of hearsay were overruled in accordance with Section 120.58(1)(a) Florida Statutes.

Proposed Recommended Orders submitted by the parties hereto have been considered. There is no material dispute as to the facts surrounding the incident leading to the disciplinary action here taken and proposed findings not

included in this Recommended Order either were not concurred in or deemed immaterial.

FINDINGS OF FACT

1. On the evening of February 7, 1978 Officer Di Stasio stopped a vehicle driven by Michael Gross in the City of Clearwater. The primary reason for stopping this vehicle was that Gross had exited onto the main street from a side street and nearly collided with the car driven by Di Stasio.

   
   

2. After stopping the vehicle Di Stasio questioned the driver regarding the registration of the vehicle, among other things, and although Gross could not produce the registration he did produce a Bill of Sale for the vehicle dated in 1976. Gross told Di Stasio that the car had been registered in his wife's name, that they were in the process of getting a divorce, and the registration was probably in the mail to him.

   
   

3. The tag was from Kentucky, was bent and rusty, and was secured to the vehicle by wire. In lieu of citing Gross for driving with an invalid tag Di Stasio removed the tag from Gross's car and advised Gross that it was unlawful to drive the vehicle without a valid tag. Di Stasio subsequently threw the tag in the trash and made no report of the incident.

   
   

4. The Clearwater police had a book showing the various states' automobile tags and expiration dates of these tags. Had Di Stasio radioed in for this information he would have learned that the tag on Gross' car had not expired. Police officers had been instructed regarding the existence of the book but Di Stasio apparently missed the training session when this Information was disseminated.

   
   

5. The following morning on February 8, 1978 Gross appeared at the police station to inquire what he needed to do to drive his car. He related the instance of the previous evening to Captain Enlow of the Clearwater Police and when the latter could find no report of the incident called Gross at his home to come down to the police station. Di Stasio advised Captain Enlow that he thought the tag was invalid and therefore he removed it from the car. Although the tag had a `77 decal on it information in the police station indicated the tag was valid until March, 1978.

   
   

6. Di Stasio took Gross to the tag office in the courthouse where he was able to obtain a temporary tag for the vehicle.

   
   

7. As a result of Officer Di Stasio removing the tag and failing to maintain custody of the tag as required by police regulations he was suspended without pay for three days.

   
   

8. Subsequent inquiries to Kentucky confirmed that the car was properly registered to Michael Gross and that the tag on the vehicle was a valid tag on February 8, 1978.

   
   

9. Respondent's primary explanation for removing the tag from the vehicle was that Gross told him the tag had been placed on the vehicle to come to Florida and that it did not belong to the car. Gross was not a witness at this hearing and this testimony was rebutted by information in Exhibit 6 received from the Lexington, Kentucky Police.

10. In defense of his actions in not securing the tag as required by Rule

    73 when it came into his possession, Respondent produced several witnesses who testified that they had been instructed not to bring in partly filled beer cans or to remove whiskey from a motor vehicle when the driver was apprehended. None of these witnesses recalled any specific instance where a tag had been removed from a vehicle and not accounted for pursuant to Rule 73. Respondent contended that a police officer is given wide latitude to exercise discretion in the handling of property and as an example cited the instances when children's toys are left in the street and the police do not take this property into custody. The principal exception to the rule that property coming into the possession of a police officer is to be turned in to the property office involves the handling of alcoholic beverages which is not evidence.

    
    

    CONCLUSIONS OF LAW

    
    

11. Rule 14, Section 1(k) provides as a cause for suspension or dismissal of a civil service employee that the employee:

    
    

    Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public.

    
    

12. Rule 73 from the Clearwater Police Department Operations Manual provides:

    
    

    All money, evidence, and property coming into the possession of any member of the Department through the normal course of police duty, shall be secured and the necessary report shall be made of the transaction before the end of the current tour of duty. Members will adhere to appropriate Department directives when processing property and evidence.

    
    

13. The evidence was undisputed that Respondent removed Gross' tag from his automobile and neither turned the tag in to the property office as required nor filed a report of the incident. He thereby violated Rule 73 as alleged. To violate Rule 14(1)(k) of the Civil Service Rules and Regulations it must be shown that the violation of the regulation could reasonably be expected to result in loss, inconvenience or injury to the public.

    
    

14. Removing the tag from Gross' vehicle not only inconvenienced Gross by thereby making it unlawful for him to drive the vehicle, but also the failure to preserve the tag as required by Rule 73 made it necessary for Gross to purchase another tag. Thus the injury contemplated by Rule 14(1)(k) occurred.

    
    

15. Respondent's apparent understanding that Rule 73 would require a policeman to take custody of children's toys left in the street is incorrect and not in accordance with what the rule states. The rule requires the securing and

    accounting of property coming into the possession of a member of the police department. Possession as the word is here used obviously means much more than seeing it in the street or even moving such property out of the street without any intent to exercise control over the property.

    
    

16. Violations of these rules subjected Respondent to the punishment of dismissal. Accordingly the punishment awarded of three days suspension without pay is certainly well within the punishment authorized.

    
    

17. In this situation the Mayor of Clearwater is given authority to discipline Civil Service employees and the action here taken was taken by the Mayor. Obviously the Mayor acted upon a recommendation submitted by the Chief of Police although no evidence to this effect was presented. This point is mentioned because even if the Civil Service Board of the City of Clearwater has the authority to reduce a lawful punishment awarded by the Mayor such authority should be exercised with circumspection because to do so results in substituting the judgment of the Board for the judgment of the Chief of Police and the Mayor when the latter have the responsibility for maintaining discipline and effectiveness in the Police Department.

    
    

18. In City of Clearwater v. Garretson, Fla.App., 355 So.2d 1248 (Fla 2 DCA 1978) the court held that the Board had no authority to reinstate an employee who had been terminated for just cause. It would follow that once just cause for a lesser punishment, to wit: suspension, was found neither the Hearing Officer nor the Board has authority to mitigate this punishment.

From the foregoing it is concluded that Officer Di Stasio violated Rule 73 of the Clearwater Police Department and Rule 14(1)(k) of the Civil Service Rules and Regulations as alleged and that the punishment of three days suspension without pay is neither excessive nor arbitrary for the offense of which Di Stasio was found guilty. It is therefore

RECOMMENDED that the appeal be dismissed. DONE AND ENTERED this 6th day of July, 1978.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Frank X. Kowalski, Esquire Chief Assistant City Attorney City of Clearwater, Florida

P.O. Box 4748

Clearwater, Florida 33518

Cary R. Singletary, Esquire

Suite 1625, Exchange Bank Building Tampa, Florida 33602

Docket for Case No: 78-000535

Orders for Case No: 78-000535