STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: APPEAL OF THOMAS J. BELL, )

JR. against suspension by the ) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES ) CASE NO. 78-656

CAREER SERVICE COMMISSION )

Docket No. 78-51 )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Hollywood, Florida, on June 12, 1978, before the undersigned Hearing Officer.

APPEARANCES

For the Department Harold L. Braynon

of HRS: District X Legal Counsel

800 West Oakland Park Boulevard Fort Lauderdale, Florida

For the Appellant: Thomas J. Bell, Jr.

appeared in his own behalf ISSUE

Validity of suspension of Thomas J. Bell, Jr. by Robert N. Bohler, Forensic Hospital Administrator, South Florida State Hospital, on February 9 and 10, 1978.

This career service appeal arises from a two-day suspension of Thomas J. Bell, Jr., which was effected by a letter of Robert N. Bohler, Forensic Hospital Administrator, South Florida State Hospital, in a letter dated February 8, 1978. The basis of the action was Bell's receipt of three reprimands during the period September 6, 1977 to February 6, 1978. Bell appealed the suspension on February 22, 1978 and the case was referred by the Career Service Commission to the Division of Administrative Hearings for assignment of a Hearing Officer by letter of April 3, 1978.

FINDINGS OF FACT

1. Appellant Thomas J. Bell, Jr., is a Security Officer I at the South Florida State Hospital, Hollywood, Florida, which is operated under the Department of Health and Rehabilitative Services.

   
   

2. On September 6, 1977, Bell was issued an oral reprimand by his supervisor Lieutenant John Church of the Security Department at South Florida State Hospital for not obeying standing policy as to the dress code of the department. Bell was observed by Church on duty at Post 6 at approximately 3:15

   P.M. with his shirttail out of his trousers and wearing a black leather hat. Church had discussed the question of dress regulations with Bell on a previous

   occasion and had provided him with a book of regulations together with instructions to follow those rules pertaining to dress. (Testimony of Church)

   
   

3. Again, on October 13, 1977, Bell while on duty in the afternoon sometime after 3:00 P.M., was observed by Church at Monroe Gate on the hospital grounds with his shirttail out of his trousers and wearing the same leather cap. He was issued a written reprimand by Church on October 13, 1977 as a result of this incident for violation of written policies concerning dress. (Testimony of Church, Exhibits 1, 3)

   
   

4. On February 3, 1978, Bell went to the hospital snack bar to obtain a "take-out lunch." He took his assigned portable radio with him which he placed on the counter. After procuring his bag of food, he left the snack bar and left the radio on the counter. The Security Department was notified by snack bar personnel that the radio had been left there and another security officer was dispatched to return it to the department office. The radio was undamaged. At the hearing, Bell admitted that he had left the radio, but testified that he had merely forgotten it in his rush to gat back to his post. Although the letter of suspension states that Bell received a written reprimand on February 6, 1978, for this incident which was deemed to be an abuse of departmental equipment, the Department of HRS has been unable to show the existence of such a letter to Bell in departmental files. A late filed exhibit of the department reveals only a memorandum from Lieutenant James H. Dryden to R. Bohler on February 6, 1978, which summarizes the September, October and February incidents. (Testimony of Dryden, Exhibit 4)

   
   

5. Bell testified at the hearing and although admitting that he was carrying a dark colored cap when going to his post on the date of the incident in September, claimed that he did wear the hat on post. However, he also conceded that it was possible that his shirttail was out. He also acknowledged that Church had discussed the matter with him, but did not use the word "reprimand." He further testified that he had worn the hat in the October incident and when asked about it by the Security Department Chief, had informed him that it was too hot. Bell maintained that he had worn the hat because it was very hot on his post in the afternoons and he had insufficient funds to buy a regulation uniform hat. Although he also sought to show that Lieutenant Church disliked him and was prejudiced against him, Church denied such allegations and it is found that insufficient evidence was presented to establish such a fact. (Testimony of Bell, Church)

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 110.061, Florida Statutes, provides that the Department of Administration shall establish rules and procedures for the suspension of employees in the career service and for the investigation and hearing of appeals by the Career Service Commission on such actions. Subparagraph 2(c) of that statutory provision provides also that the Career Service Commission may reduce the period of a suspension.

   
   

7. Pursuant to the foregoing statutory authority, Rule 22A-7.10 (6), Florida Administrative Code, provides that an agency head may suspend any employee for any of the reasons listed in Rule 22A-7.10 (7)(b) or for any other just cause for a period not to exceed thirty calendar days in any calendar year, and gives an employee who has permanent status the right to appeal such a suspension. The reasons listed in the cited subparagraph of the rule include negligence, inefficiency, or inability to perform assigned duties, insubordination, willful violation of the provisions of agency rules and

   regulations, conduct unbecoming a public employee, misconduct, habitual drunkenness or conviction of a crime involving moral turpitude.

   
   

8. The Department of HRS has published written policies governing employee rules of conduct which are contained in HRS Pamphlet No. 60-1 dated October 1, 1977 (Exhibit 2) which lists various offenses and maximum disciplinary actions which can be effected for one or more violations. Among these listed offenses are "willful violation of rules, regulations or policies" with an authorized punishment of written reprimand or up to thirty days suspension or dismissal for the first occurrence and dismissal for the second occurrence. Also listed is "destruction or abuse of departmental property or equipment; with the same series of authorized disciplinary actions. It is further provided that if an employee has received a disciplinary action within the previous six months and an additional violation occurs, he may receive up to ten days suspension if the initial offense resulted in an oral or written reprimand. If an employee has received two or more written reprimands, or an oral reprimand and a written reprimand within the previous six months, he may receive up to thirty days suspension or dismissal.

   
   

9. It is determined that the fact at hand justified the employer in administering one oral reprimand and one written reprimand for the two dress violations in September and October, 1977. The Security Department policies specifically provide that "while in uniform, whether on or off duty, the shirt will remain tucked into the trousers." They further provide that the head covering when in uniform is a blue straw stetson hat. The evidence establishes that the employee violated these regulations on the two occasions while on the hospital grounds. However, in order to constitute an offense under the HRS "Employee Rules of Conduct," such violations of policies must be "willful." Bell testified that he was aware of the dress requirements at the time of the incidents alleged and accordingly, it must be concluded that his repeated violations thereof were "willful" in nature. The matter which he raised as

   mitigation of the offenses, i.e., the fact that it was hot on his assigned post, cannot justify his actions.

   
   

10. As to the alleged written reprimand administered to Bell for "abuse of departmental equipment" arising from the radio incident, no evidence was presented that such a written reprimand or, in fact, any reprimand, was given to Bell as a result of this incident. Accordingly, it cannot be used as a basis for disciplinary action.

    
    

11. In view of the foregoing and because the evidence shows that Bell received a valid oral reprimand in September, 1977 and a valid written reprimand in October, 1977, it is considered that just cause existed for the two-day suspension imposed upon him on February 8, 1978, under the Department of HRS policy standards and within the purview of Rule 22A-7.10(6)(b) and (7)(b) Florida Administrative Code.

RECOMMENDATION

That the Career Service Commission deny the appeal.

DONE and ENTERED this 14th day of July, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

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

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1978.

COPIES FURNISHED:

Conley M. Kennison

Attention: Mrs. Dorothy Roberts Appeals Coordinator

Career Service Commission

530 Carlton Building Tallahassee, Florida 32304

Harold L. Braynon District X Legal Counsel Department of HRS

800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311

Thomas J. Bell, Jr.

16420 North West 20 Avenue Opa Locka, Florida 33054

Docket for Case No: 78-000656

Orders for Case No: 78-000656