vs. ) CASE NO. 82-0568
Respondent. )
Pursuant to notice, a final hearing was held in this case on December 2 and 3, 1985 in Live Oak, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented by:
Petitioner: Ernest A. Sellers, Esquire
James W. Prevatt, Jr., Esquire Post Office Drawer 8
Respondent: Edwin B. Browning, Jr., Esquire Post Office Drawer 652
The issue in this case is whether the Board of County Commissioners of Suwannee County, Petitioners, has established "cause" to terminate Derl Wilson, Respondent, as building inspector for Suwannee County under Part X, Suwannee County Personnel Regulations. At the hearing Petitioner called fifteen (15) witnesses, including Respondent, and eighteen (18) witnesses were called on behalf, of Respondent, including Respondent himself. The Petitioner introduced Exhibits Numbered P 1-13, 15- 26, and Respondent introduced Exhibits R 1-7.
Petitioner's Exhibits 18 and 23 consist of a total of seven, three-ring notebooks containing 2518 pages of documents related to this case. A transcript of the final hearing was filed on February 3, 1986.
The parties requested, and were allowed, until March 20, 1986 to submit proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding is included in the Appendix to this Final Order.
Respondent was employed as building inspector of Suwannee County on or about November, 1974. and was terminated by action of Petitioner at a meeting on or about September 18, 1980.
Respondent received a letter dated October 14, 1980 from Claude McDonald, Chairman, Suwannee County Board of County Commissioners, listing the following reasons for his termination:
Gross neglect of duty.
Absence without leave.
Incompetence or unwillingness to render satisfactory services.
Insubordination or serious breach of discipline.
Habitual absences, tardiness or abuse of sick leave.
Substantial violations of personnel regulations.
Falsifying travel records.
Fraudulent claims filed with the Board of County Commissioners `for reimbursement of travel expenses to job sites for inspections when, in fact, such inspections were not made, or in the alternative, making inspections which were not documented by signing building permits as required by established procedures.
Respondent was the first building inspector for Suwannee County and established all of the procedures and forms used in the building department. He was bound by the personnel and fiscal regulations of Suwannee County, but was given a substantial degree of independence in setting up the building department, and thereafter in conducting the daily work of the department. In establishing and administering the department, Respondent consulted with other building inspectors and officials.
In January, 1975 Respondent hired Connie Robinson as his secretary, and in February, 1979 he hired Pat Sura to be his assistant building inspector.
Sura is now building inspector for Suwannee County.
The evidence establishes that the regular business hours of the building department while Respondent was building inspector were from 5:00 a.m. to 5:00 p.m. This is consistent with the county's policy and with the practice of other county offices. Both Connie Robinson and Pat Sura, "employees" of the building department, testified that they worked from 8:00 a.m. to 5:00 p.m. Respondent would regularly arrive at the office at about 5:30 a.m., but he frequently conducted official county business both before arriving at the office and after leaving in the evening by visiting job sites. The building inspector is a "department head" as that term is defined in Part I, Suwannee County Personnel Regulations, and as such is exempt from a 8:00 a.m. to 5:00 p.m.
work day and the 40 hours per week required by Part XIV, Section C, Suwannee County Personnel Regulations. Therefore, the evidence establishes that the "employees" of the building department maintained work hours consistent with applicable personnel rules at all times relevant herein, and also that Respondent's own work hours were not violative of applicable personnel rules.
As a "department head", Respondent did not accrue compensatory time or earn over-time pay for hours worked beyond forty hours a week. Department heads were expected, when the need existed, to work more than forty hours a week. Respondent did earn vacation and sick leave. In order to use earned vacation or sick leave, Respondent was required to submit a request for leave as provided in Part XVI, Sections A4 and 55, Suwannee County Personnel Regulations.
The evidence establishes that Respondent was absent from his office and did not perform official duties for the county on the following dates, although
he was paid for work on these dates and did not submit a request to use either vacation or sick leave: February 5-12, 1980; June 3-13, 1980; September 15-16, 1980. This finding is based on the testimony of Connie Robinson and Pat Sura. Although Respondent called the office once during the February absence, notified the Board of County Commissioners in advance that he would be gone for two days during the June absence to attend an educational seminar in Orlando and also that he would need some additional time off due to his son's medical emergency, and had his wife call the office and leave a phone number where he could be reached during the September absence, Respondent never submitted a request for leave for any of this time. This failure followed a formal written warning concerning the use of leave issued by the Chairman of the Board of County Commissioners to Respondent on December 6, 1979.
Despite being absent from the office without claiming leave on the dates specified in finding of fact 7 above, Respondent submitted false reports to the county indicating that he had conducted inspections on June 6 and 9, 1980 when in fact he was in Orlando for his son's medical emergency and for an educational seminar.
From February 24, 1979 to November 21, 1979, Respondent was in the process of building his house. He did not use a general contractor, but rather acted as an owner-builder. There is conflicting testimony as to whether Respondent was absent from his job without claiming leave during this time, and whether he spent time during his normal working hours working on his house, rather than as building inspector for Suwannee County.
After considering all of the evidence, it is specifically found that Respondent did take unreported time off during his normal work day to either work on his house, receive materials on site, or check on contractors who were working on his house. The frequency of his visits with these contractors indicates that these were not normal inspections made during the course of his duties as building inspector. This finding is based upon the testimony of Connie Robinson, Pat Sura, Respondent himself, and also Buddy McCall, Anthony Donald Selph, Jan Touchton and James Benton who either worked on Respondent's house or delivered materials to the job site between 5:00 a.m. and 5:00 p.m. during this time, and who testified that Respondent was regularly present on the site between the hours of 8:00 a.m. and 5:00 p.m. This finding is specifically made after considering the contrary testimony of Raymond Key, and Alfred Smith, and Respondent's denial that he took unreported leave to build, or worked on his home during his normal work hours.
Although the exact number of unreported days off which Respondent took to work on his house in 1979 cannot be determined, there is competent substantial evidence based on the testimony of Connie Robinson and Pat Sura that Respondent took between 15 and 20 work days off between May and August, 1979 and did not report these absences. Respondent was paid his normal salary for these days by Petitioner.
In May, 1980 Respondent was asked to submit a report to the Board of County Commissioners on the number of inspections he had personally made during the preceding twelve months, and thereafter to submit monthly inspection reports to the Board. This request was made on behalf of the Board by Jerry Scarborough, Clerk of the Court and Clerk to the Board. Claude McDonald, Chairman of the Board in 1950, testified that Commissioners had been receiving some complaints from the public that Respondent was frequently absent from his office, and that he was spending time at the real estate office of Robert Mahan
where his wife worked. Robert Mahan confirmed that Respondent visited his wife during normal work hours quite often.
Respondent reported to the Board of County Commissioners that he had made between 200 and 250 inspections during the preceding year while Pat Sura had made approximately 1200. He explained the difference was due to the fact that he had other duties, such as Public relations and administration, while Sura's sole job was to make inspections. However, subsequent to the request for regular reports which was made in May, 1980, the number of days per month when Respondent reported that he had conducted inspections increased substantially. Specifically, from January to April, 1980 he averaged inspections on 3 days per month while from May to August he averaged inspections on 11 days per month, according to his reports.
From the evidence presented, it is found that Respondent did copy Pat Sura's inspection reports and submit them as his own regarding some of the inspections he reported after May, 1980. The exact number of falsified inspection reports cannot be determined, but it is clear that Respondent falsely reported an increased number of personal inspections in response to the request by the Board.
From the evidence presented, it is also found that Respondent falsely claimed travel expense reimbursement for inspections which, in fact, he did not make on April 14 and 15, 1980 and September 2-4, 8, 9, 1980. The reimbursement received for travel associated with inspections during this time was less than
$100, but it cannot be determined exactly how much of this claim was false. It is clear, however, from an independent audit conducted by Steven Collins, C.P.A., that the system for documenting travel expenses does not support a substantial number of the inspection trips claimed by Respondent on these vouchers.
Respondent sought to explain the matters in findings of fact 12 and 13 by contending that on most of the inspections he made, he did not sign the building permit. However, he acknowledged that it was standard practice for the inspector to sign the permit when he made an inspection. Respondent indicated that his visits to a building site were not always formal inspections and that he might simply stop by to check up on a contractor or on the work of Pat Sura, or to make a public relations visit. Notwithstanding the possibility that some of his site visits and reported inspections may have, in fact, occurred as uncalled, surprise visits, a substantial number of these visits and inspections, as well as associated travel vouchers, were falsified by copying Pat Sura's inspection reports.
On May 22, 1981, Lynn B. Martin, Appeals Referee, Unemployment Compensation Section, determined that Respondent was disqualified from receiving benefits for having been discharged for misconduct connected with his work. Respondent was not represented by counsel in that proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case. Section 120.57(1), and 120.65(6), Florida Statutes; Part XI, Section B, Personnel Regulations of Suwannee County.
By stipulation of the parties, the issues to be determined in this cause are: (1) whether Petitioner has established that Respondent was dismissed
for "cause"; and (2) whether Respondent is barred from maintaining this action by virtue of the dismissal of his unemployment compensation claim.
Whether "Cause" Exists
Petitioner has the burden to establish that grounds exist for employee discipline under the Personnel Regulations of Suwannee County. Respondent was covered by the Personnel Regulations while employed as building inspector for Suwannee County and therefore could only be dismissed in accordance with Part X, Section B which specifies "cause" for employee dismissal. The reasons for Respondent's dismissal listed in Chairman McDonald's letter of October 14, 1980 conform to the listing of "cause" in the Personnel Regulations, and therefore if the evidence supports the matters alleged in Chairman McDonald's letter, Respondent may be dismissed for `cause.'
As reflected in the Findings of Fact, above, it has been established that Respondent was absent without leave, was habitually absent, abused sick leave, falsified travel records and made fraudulent claims for reimbursement of travel expenses to job sites for inspections which were not made, or which were not documented in accordance with established procedures. Respondent had received a previous formal written warning in December, 1979 about this failure to follow leave procedures. These facts constitute substantial violations of personnel regulations, as well as a gross neglect of his duties as a department head and an unwillingness to render satisfactory services in accordance with established procedures. However, it has not been established that Respondent was incompetent or habitually tardy.
It is well established that public employees with civil service protection may not be discharged except for cause, and in this case the Personnel Regulations of Suwannee County specifically require the establishment of cause and enumerate types of conduct which constitute cause for dismissal. Petitioner has established that Respondent did engage in conduct listed as cause for dismissal and that this conduct was not the result of an isolated incident. Rather, it included violations from May, 1979 to September, 1980 involving unreported absences for which Respondent was compensated, as well as falsified records and claims. Respondent received a written warning about his failure to follow leave procedures ten months prior to his dismissal, but he continued to disregard leave procedures during 1980.
The repeated violations of Suwannee County Personnel Regulations constitute "cause" for Respondent's dismissal.
Whether This Action is Barred
Having determined that "cause" exists for Respondent's dismissal, it is not necessary to reach Petitioner's claim that' this action is barred by virtue of the dismissal of Respondent's unemployment compensation claim. Nevertheless, in the interest of resolving all issues in this long-pending matter, it is concluded that the prior action on his unemployment compensation claim does not bar the action by Respondent.
Petitioner's argument advances the theory of estoppel by judgment which is only applicable where a judgment in one suit estops parties from litigating in a second suit issues common to both causes of action that were actually litigated in the prior suit. Gordon v. Gordon, 59 So.2d 40, 43 (Fla. 1952). It is essential to estoppel by judgment that "it be made certain that
the precise facts were determined by former judgment." Bagwell v. Bagwell, 14 So.2d 841, 843 (Fla. 1943); Stone v. Stone, Ill So.2d 486 (Fla. 3rd DCAft959).
Petitioner has not established that the facts and issues present in this action were actually and precisely before the unemployment compensation appeals referee or that these matters were determined through final judgment in that action. From a review of Section 443.101(1)(a), Florida Statutes (1981), it appears that the issues to be determined in this prior action were, indeed, different from the issue presented here under the county's personnel regulations.
Therefore, this case is not barred by prior action.
Based upon the foregoing findings of fact and conclusions of law it is ORDERED: that Respondent's appeal is hereby DISMISSED since it has been established by Petitioner that Respondent was discharged for "cause."
DONE and ORDERED this 16th day of April, 1986, at Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1986.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 82-0568
Rulings on Petitioner's Proposed Findings of Fact cannot be made since it does not separately list or number proposed findings but rather includes twenty pages of unnumbered paragraphs which include argument, legal conclusions and summations of testimony without any citation to the record, as required by Rule 221-6.31, Florida Administrative Code. Petitioner's Proposed Findings of Fact have nevertheless been considered and adopted where appropriate as reflected in the Findings of Fact in this Final Order, but are otherwise rejected as argument, legal conclusions, summations of testimony, or as being irrelevant and unnecessary.
1. Adopted in Finding of Fact. 2,3. Adopted in Finding of Fact 3.
8,9. Adopted in part in Findings of Fact 5, 14 but otherwise rejected as not based on competent substantial evidence, and also as irrelevant.
Ernest A. Sellers, Esquire James W. Prevatt, Jr., Esquire Post Office Drawer 8
Edwin B. Browning, Jr., Esquire Post Office Drawer 652
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
