STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FRANK A. CALUWE, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 82-2649
)
SOUTH FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 28 and 29, 1983 in West Palm Beach, Florida.
APPEARANCES
For Petitioner: Raymond A. Rea, Esquire
Post Office Box 251
Boynton Beach, Florida 33425
For Respondent: Robert L. Norton, Esquire and
Michael Mattimore, Esquire
121 Majorca Avenue, third floor Coral Gables, Florida 33134
BACKGROUND
This proceeding was spawned when Respondent, South Florida Water Management District, issued a letter and memorandum on August 5, 1982 advising Petitioner, Frank A. Caluwe, Jr., that his employment with Respondent had been terminated effective August 4, 1932. In general terms, Respondent stated that Petitioner had accumulated 125 disciplinary points between March 19, 1982 and July 30, 1982, or 25 more than that required for termination under Respondent's Corrective Action-Procedure Index and Corrective Action-Policy, that Petitioner had ". . . made untrue allegations of misconduct which (had) substantially interfered with (his supervisor's) ability to work with (Petitioner)," and that his "actions (had) made it impossible to transfer (Petitioner) to another department." 1/
Petitioner disputed these allegations and on August 20, 1982 filed a petition for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to contest his discharge. An amendment to the petition was subsequently filed on September 14, 1982. The matter was referred by Respondent to the Division of Administrative Hearings on September 29, 1982 with a request that a hearing officer be assigned to conduct a formal hearing.
By notice of hearing dated November 10, 1982 the final hearing was scheduled for January 18, 19 and 20, 1983 in West Palm Beach, Florida. On December 30, 1982 Petitioner requested a continuance of the hearing, and the matter was rescheduled to February 23, 24 and 25, 1983 at the same location. On February 17, 1983 Respondent requested a continuance and the matter was again rescheduled to March 28 and 29, 1983 in West Palm Beach, Florida.
Prior to the final hearing, a number of procedural matters and motions were raised or filed by the parties. They are too numerous to detail in this order but were disposed of by prior orders of the undersigned or at the outset of the hearing. 2/ Of some significance, however, were orders entered by the undersigned on January 31 and March 14, 1983 holding that, notwithstanding the style of the case, Respondent had the burden of proving the basis for Petitioner's termination of employment.
On March 18, 1982 a final order was entered in Case No. 83-123R, Frank A. Caluwe, Jr. v. South Florida Water Management District, in which Hearing Officer Williams found Respondent's Corrective Action-Procedure Index and Corrective Action-Policy to be a "rule" within the meaning of Section 120.52(14), Florida Statutes, and therefore constituted an invalid exercise of delegated legislative authority in view of Respondent's failure to comply with Section 120.54, Florida Statutes. This order has been appealed by Respondent to the Fourth District Court of Appeals, thereby staying its effectiveness pending judicial review.
At the final hearing Petitioner testified on his own behalf and presented the testimony of Richard, A. Rogers, Robert Goodrich, F. Paul Schofield, II, John R. Wodraska, Robert Mark Chapman, Daniel Swift and Dr. Patrick Gleason. He also offered Petitioner's Exhibits 1-14 and 16-26; all were received except Exhibits 9 and 14 which were never moved into evidence, Respondent presented the testimony of Robert Mark Chapman and Richard A. Rogers and offered Respondent's Exhibits 1-14; all were received in evidence.
The transcripts of hearing (two volumes) were filed on May 9, 1983.
Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent on May 27 and 31, 1983, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
Because the parties were given until May 31 in which to file their proposed orders, the requirement in Rule 28-5.402, Florida Administrative Code, that a recommended order be entered within 30 days after the filing of the transcript has been waived.
The issue herein is whether Petitioner was properly terminated from employment by Respondent.
Based upon all of the evidence, the following Findings of Fact are determined:
FINDINGS OF FACT
Petitioner, Frank A. Caluwe, Jr., was employed on a noncontractual basis by Respondent, South Florida Water Management District, during the period from April 8, 1974 through August 4, 1982. From August, 1981 until his termination, Caluwe held the position of water management engineer III.
At all times relevant hereto, Richard A. Rogers, director of the Resource Control Department, was overall supervisor or department head. Charles Alan Hall served as his direct, day-to-day supervisor.
Petitioner transferred into the Resource Control Department in 1977. He was eventually promoted to a supervising professional engineer I class in 1979 by Rogers and Hall. Caluwe's job evaluations received in evidence as
Petitioner's Exhibit 17 reflected outstanding and excellent ratings and included such glowing descriptions of his work performance as "excellent" and "well organized", and as having "a very good handle on all phases of the work". He received an excellent rating from Rogers and Hall as late as November, 1981.
Rogers first began experiencing what he described as "difficulties" with Caluwe around 1980 when Caluwe went to lunch with several of his subordinates and did not return to work the rest of the afternoon. He did not take leave for his absence. Although Rogers claimed the employees were on a "drinking spree," this was not confirmed. Caluwe did not receive any disciplinary action for this "incident", although several months later Hall expressed displeasure with his absence. There was no evidence that any of the other employees in the group received any type of oral or written disciplinary action for their absences.
Several other "problems" occurred during his employment tenure including unsuccessful attempts in 1980 to utilize law books at the agency's law library for personal use, admonishments for having too many incoming personal calls on his telephone during office hours and discussing nonworking matters with other employees, "negative" comments to two subordinates during a 1981 intra-agency election, and an alleged failure to return a long-distance telephone call to someone seeking information. However, no formal disciplinary action was taken against Petitioner for any of these actions, and his personnel file reflects no written comments. He also sued the agency twice, once in 1977 over an insurance claim, and a second time in 1980 concerning a cash award he claimed was due for making a suggestion. However, this action did not result in any written or oral warnings from his superiors.
In May, 1981, Hall, Rogers and Caluwe met to discuss a transfer from a supervisory position (supervisor of water permit section) to a water management engineer III, which was a staff position. Although Caluwe admitted he was "burned out" in his supervisory role, he protested being demoted to a staff position and requested he be given an engineer IV slot. Notwithstanding his request he was demoted to the lower position.
On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board "urging" all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe's department when the talk was to be held, but made no mention regarding attendance. Caluwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis required attendance, and because other employees had missed the meeting in prior years. He conceded, however, that it was "implied" from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that "everybody (was) expected to attend." Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed.
During the annual agency meeting Caluwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, "I don't know. That's not my job. Pat Gleason's group handles that." Out of "curiosity", the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered "abuse" as a result of this as the agency claims was not confirmed.
Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the "incident" with the receptionist. On March 22 Caluwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency's Corrective Action-Procedure Index and Corrective Action-Policy. The Index and Policy "defines appropriate corrective actions for resolving performance problems and violations of rules of conduct" by agency employees. In short, it represents the agency's written code of conduct for employees. A 2e offense is defined therein as a "(f)ailure to follow authorized instructions." In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the "incident" with the receptionist, the missed meeting, and Caluwe's apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting.
On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other "incidents" that had occurred during the preceding eighteen months, Attached to the letter were 23 exhibits. Among other things, Caluwe accused Hall and Rogers of "improper conduct and abuse of authority" in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency's governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March
Caluwe was not disciplined for this action.
On March 31, 1982 Caluwe wrote a two-page letter to the members of the governing board of the agency and enclosed his March 29 letter and exhibits previously sent to Rogers. In his March 31 letter, Caluwe stated, among other things, that management "occupie(d) a position of trust", that it had "breached this trust", that it "rule(d) by intimidation and fear and not in the spirit of cooperation", and urged the board members to conduct an independent investigation of his "allegations". A copy of this letter was also furnished an outside attorney.
On May 13, 1982 Caluwe sent another letter to the members of the governing board in which he inquired as to the status of the investigation he had called for in his letter of March 31. Caluwe also raised allegations concerning the agency's general counsel, and claimed the general counsel had "used sick leave for purposes other than for which it was intended (and) falsified his bi-weekly time reports and received pay and benefits for periods
he was absent from work", and that the problem was created because his leave slips had been approved by the agency's deputy executive director. That complaint is now the subject of a Florida Commission on Ethics proceeding.
Caluwe had previously brought this subject to Rogers' attention sometime in 1980. There was no evidence his to the reaction, if any, by the members of the governing board to this letter or the one previously sent on March 31. Caluwe did not furnish his supervisors a copy of the letter but did copy the records clerk of the agency. Neither Rogers nor the agency personnel director received copies of the same until late July, 1982.
In June, 1982 Caluwe contacted reporter for the Miami Herald to disclose the fact that the chairman of the agency's governing board had been involved in selling insurance to the board.
On June 22, 1982 outside counsel for the agency wrote the agency's personnel director telling him, among other things, that it would call the director the next day concerning Caluwe and provide him "with language to be included in a letter of termination." It also referred to a need to review in detail "SFWMD's termination, grievance, and personnel policies to make sure that Caluwe's discharge, and the procedures used to implement the discharge, comport with due process." At this point, then, the agency had decided to terminate Caluwe.
On July 21, 1982 Caluwe again wrote a letter to the members of the governing board. The text of the letter is set out below:
To members of the Governing Board of the South Florida Water Management District:
You are to be congratulated for your unity in not addressing controversial topics. It's an unfortunate situation when special interests are put ahead of the public trust that has been vested in you.
The only reasonable conclusion that I can reach is that you condone poor management and theft. Perhaps some of you have committed acts similar to these and that's why you cannot afford to get involved. Well you are involved! It's satisfying to note the courts have held directors personally liable in civil actions and that penalties are not limited to compensatory damages but that punitive damages can be assessed. It's also interesting to note that you may be found culpably negligent in permitting acts like these to occur.
Since you have been unwilling to do your own house cleaning, I have decided to help you in this matter. I think it would be an excellent idea if the citizens of South Florida had an opportunity to see how the South Florida Water Management District has acted in favoring special interests. When this happens you will not honestly be able to say, "we didn't know".
One member of the Board responded by letter dated July 23, 1982 that she considered it inappropriate for Caluwe to write directly to board members and instructed him to use channels that were provided for handling complaints. She added that Caluwe's letter struck her as being "offensive". The letter made no direct reference to Rogers and Hall, and they were not furnished a copy.
However, on July 26 Rogers was given a copy of the letter.
On July 30, 1982 Rogers sent Caluwe a memorandum in which he informed Petitioner that his employment was being terminated at 5:00 p.m. on August 4, 1982, and not to report to work after July 30. In brief, the reasons given for Caluwe's termination were (a) his "uncooperativeness shown a co-worker" on March 19, and his "failure to respond to a request for information from a member of the public", which collectively constituted a 2e offense for which he was previously assigned 25 points on March 19, 1982; (b) his letter to Rogers on March 29, 1982 which alleged poor management, illegal activity and unfair treatment to Caluwe, and which "personally attacked and insulted Charles Hall and (Rogers)"; (c) his letter of July 21 to the board which contained "inflammatory, threatening, and abusive language" and which constituted Category 2h and 3a offenses for which he received 75 points in total, and an additional
25 points which was given for the same letter by virtue of Caluwe's "failure to follow promulgated grievance and complaint procedures'; 3/ (d) the accumulation of a total of 125 points since March 19 which was in violation of Section E.1.d. of the Corrective Action Policy; and (e) "actions" which interfered with Rogers' ability to maintain internal discipline", made it impossible to work with (Caluwe)", made it "impossible to transfer (him) to a different Department", which "interfered with (his) performance of assigned duties", and which showed a "tendency on (his) part to make untrue and misleading statements."
A Category 2h offense is defined in the Policy-Index as the "(u)se of abusive language to a co-worker" while a Category 3a offense is defined as the "(u)se of abusive or threatening language to the public, or use of threatening language to a co-worker." Category 2e offenses carry the imposition of 25 points for each violation. Fifty points are assigned for a violation of a Category 3 offense. Section E.1.d, of the Policy-Index provides that "(a) total of 100 points in effect may be cause for termination." The Policy-Index requires that "(c)orrective action shall be taken as soon as possible, but not more than five working days from the time the supervisor becomes aware of the incident."
The memorandum of July 30, 1982 was followed by a letter to Caluwe on August 5 from Rogers which confirmed that his employment had been terminated. The letter also instructed Caluwe on the time limitations for filing a request for an administrative hearing. Thereafter, a timely request for a hearing was filed.
The agency adopted an "Employee grievance Procedure" on July 15, 1977. Its purpose was to allow all employees the opportunity to quickly and fairly resolve a grievance." The Procedure provides a specified procedure for hearing and resolving various types of complaints from employees, including a hearing by an Employee Relations Committee (ERC), a further review by the unit manager or department director, a second hearing by a Grievance Review Board, and a final decision by the agency's executive director.
According to the agency's personnel director, the agency has fired employees in one of two ways in the past: (a) when the employe has accumulated more than 100 disciplinary points under the Policy-Index, and (b) when the
employee has committed certain acts, irrespective of the Policy-Index. Thus, it contends the agency may, at its discretion, determine whether to terminate an employee by assessing points under the Policy-Index or by merely giving notice to the employee even though he has accumulated no points under its written code of conduct.
Even though an employee has accumulated over 100 points, the agency may not necessarily fire an employee. For example, on one occasion an employee accumulated 135 points but was not fired. In the case at bar, the agency considered Caluwe's 125 points to be incidental to his termination, and viewed his supervisor's inability to work with him, his letter writing activities and prior "incidents" to be the major concern and basis for the termination.
Whether the District had a policy of terminating an employee whenever his actions made it impossible to transfer him to another department or whenever a supervisor could not work with an employee was not disclosed. It was also not disclosed whether all employees, including Caluwe, were aware of such policies, and the ramification for violating the same. There was no evidence as to the reason for such policies, the types of proscribed conduct within each policy, and the authority for adopting the same.
Caluwe blamed his firing primarily on the fact that he had prompted an investigation of the agency's general counsel, who was a long-time District employee. He acknowledged he failed to use the Employee Grievance Procedure when he wrote directly to the members of the governing board, but claimed the ERC was ineffective in dealing with management problems. Caluwe did not dispute that he missed the annual meeting, and wrote the letters in question; however, he contends they do not justify the disciplinary action imposed by the District.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
In this proceeding, the agency bears the burden of proving the basis for terminating the employment of Petitioner. Fla. Dept. of Health and Rehabilitative Services v. Career Service Commission,, 289 So.2d 412, 415 (Fla. 4th DCA 1974). As such, the burden of proof is on the agency to go forward with evidence to prove the legitimacy of its action in terminating Caluwe. Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). See also Rule 40E-1.544, Florida Administrative Code. Further, because the agency's action may be characterized as "quasi-penal" in nature since Petitioner's job is at stake, the evidence must be more substantial than that required to support conventional forms of regulatory action. 4/ Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Smith v. School Bd. of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981). With this standard of proof in mind, an analysis of the record will be made to determine whether Caluwe's conduct justifies his termination.
It is necessary to define the scope of the acts which are germane to this proceeding. The grounds offered by the agency are set forth in Rogers' memorandum of July 30, 1982 and are summarized as follows:
In summary, my decision to terminate you on August 4, 1982, is not guided by the fact that you have commented on matters of possible
public interest. Rather, I am terminating you because you have accumulated 125 disciplinary points since March 19, 1982; you have made untrue allegations of misconduct which have substantially interfered with my ability to work with you; and your actions have made it impossible to transfer you to another department. (Respondent's Exhibit 9).
Accordingly, the agency is limited to those allegations of which the employee has been provided notice. All others are irrelevant. Department of Natural Resources v. Sheffield, 420 So.2d 892, 893 (Fla. 1st DCA 1982).
Another matter requiring resolution before addressing the merits of the case is the entry of a Final Order on March 18, 1983 which held the agency's Corrective Action-Procedure Index and Corrective Action-Policy to be a rule within the meaning of Subsection 120.52(14), Florida Statutes. Frank A. Caluwe, Jr. v. South Florida Water Mgmt. District, Case No. 83-123R, Final Order entered March 13, 1983. Because the rulemaking procedures in Section 120.54 had not been complied with by the agency, the Index and Policy were held to be an invalid exercise of delegated legislative authority. The Order was appealed on a timely basis by the agency, thereby staying the effectiveness of the Index and Policy until the matter is resolved by the Court. South Florida Water Management District v. Frank A. Caluwe, Jr., Case No. 83-780, (Fla. 4th DCA, filed April 13, 1983). The agency does not perceive the invalidation of the Index-Policy to be fatal to its case, for it contends Caluwe's behavior was such as to warrant his termination regardless of the outcome of the appeal. It contends that in the absence of any valid rules regarding discipline or discharge, the District has the power to take action against an employee pursuant to a Section 120.57(1) hearing. The undersigned agrees that such a power is inherent in the employment relationship. See Jacker v. School Board of Dade County, 426 So.2d 1149, 1151 (Fla. 3rd DCA 1983) and cases cited therein. To hold otherwise would be tantamount to saying that in the absence of valid disciplinary rules an agency is helpless to protect itself against destructive misbehavior by employees. Such a result would be to endorse chaos. Here, it is undisputed that the agency has the statutory power to ". . . appoint and remove.
. . employees," Subsection 373.083(1), F.S., and to ". . . employ. . . engineers. . . under such terms and conditions as it may determine, and to terminate such employment." Subsection 373.079(4), F.S. Therefore, it is concluded that the agency may formulate and "explicate" its policies in a 120.57 proceeding to support the discharge of Caluwe. McDonald v. Dent. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). This is especially important for the agency has relied in its termination memorandum of July 30, 1982 on not only the Index-Policy, but also on other grounds not expressed by rule or regulation, or even by informal policy. 5/ However, in articulating a standard of conduct, Respondent must operate within the narrow constraints of those reasons enunciated in its termination memorandum. Sheffield, 420 So.2d at 893.
Unlike permanent employees of the State of Florida, water management district employees are not entitled to appeal a suspension or dismissal to the Career Service Commission. But because their "substantial interests" may be affected by the proposed agency action, a disciplined water management district employee is entitled to a de novo fact finding 120.57(1) hearing. Webster v. South Florida Water Management District, 367 So. 2d 734 (Fla. 4th DCA 1979). Such a right is apparently accorded District employees under its own internal rules and regulations, for the District so advised Caluwe in its termination memorandum.
In the case at bar Caluwe has been terminated on the basis of three broad grounds: (a) the accumulation of 125 points under the Policy-Index, (b) "untrue allegations of misconduct" which interfered with his supervisor's ability to work with Caluwe, and (c) "actions", which made it impossible to transfer Caluwe to another department. Each will be dealt with separately.
The first broad area of misconduct centers around the excessive accumulation of points. They stem from the incident on March 17, and a letter written by Caluwe to the agency's governing board on July 21.
March 19, 1982 Category 2e violation
The evidence reveals that in the termination memorandum of July 30, Caluwe was assessed 25 disciplinary points for "uncooperativeness shown a co- worker", and "failure to respond to a request for information from a member of the public", each of which individually or cumulatively, constituted a Category 2e offense. But this description of improper conduct differs from that given in the memorandum written by Caluwe's supervisor on March 19, and is inconsistent with the nature of the violation. Caluwe was cited for failing to follow an authorized instruction, which presumably related to his absence from the annual meeting on March 17. This was never mentioned in the termination memorandum. Had the agency intended to cite Caluwe for "uncooperativeness" and refusing to give information to a member of the public, its own rules required it to do so within five days after his supervisor learned of the incident. Paragraph 5, Statements of Policy, Corrective Action-Policy. Even if the charges had been timely, the evidence does not support a finding of guilt as to the alleged charges, for the co-worker and member of the public were never identified, and did not testify to corroborate the charges. Conversely, Caluwe's uncontradicted testimony adequately explained his actions and refuted the allegations. Therefore, it is concluded that there is no basis for imposing the 25 points.
July 30, 1982 Category 2h violation
The termination memorandum construed Caluwe's letter of July 21 to the governing board to contain "inflammatory, threatening, and abusive" language and concluded it violated the prohibition against the "(u)se of abusive language to a co-worker". Although not identified in the termination memorandum, Rogers testified that he considered the letter to be abusive. 6/ For this Caluwe was given 25 disciplinary points. Petitioner contends that since the letter was not addressed to Hall and Rogers and made no reference to those individuals, and because the language was not obscene, it cannot be characterized as being abusive to his supervisors.
Clearly the letter contained inflammatory, threatening and abusive language. But to say that a letter directed to the members of the governing board, and which made no direct reference to Rogers, was abusive to him is incorrect. 7/ If Respondent's logic were upheld, the agency could discipline employee A for writing employee B merely because employee C, who was not mentioned in the letter, happened to read it and found it to be personally abusive. Therefore, it is concluded that the imposition of 25 points for a Category 2h violation was erroneous and not consistent with the terms of the Policy-Index.
July 30, 19 2 Category 3a violation
This violation stems from the same letter of July 21 and is founded upon the premise that the letter constituted the "(u)se of abusive or threatening language to the public, or use of threatening language to a co- worker". The agency gave Caluwe 50 points for this violation. Although the termination memorandum does not identify the "public", Respondent contends that "the members of the public that sit as the Governing Board" were in fact the "public" were abused or threatened. As noted earlier, the letter contained threatening and abusive language, and was indeed found to be "offensive" by at least one member of the board. Nonetheless, Respondent has relied upon the wrong category of offense to support its action. Clearly the term "public" was not intended to mean Caluwe's employer or co-workers, and it is illogical to assert that it does. 8/ This conclusion is based upon the rule that words not only should be given their plain and ordinary meaning, Dept. of Health and Rehabilitative Services v. McTigue, 387 So.2d 454, 456 (Fla. 1st DCA 1980), but should be strictly construed and followed in quasi-penal proceedings. Bach v. Fla. State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1979). Therefore, the charge that Caluwe made abusive or threatening language to the public must fail.
July 30, 1982 Category 2e violation
The final 25 points are based upon Caluwe's failure to follow promulgated grievance and complaint procedures in filing his "complaint" directly with the members of the governing board instead of with the Employees Relation Committee (ERC). Caluwe was actually charged with failing to "follow any authorized instruction." Caluwe does not dispute this omission, but argues that the procedure was ineffective, that it was not mandatory, and that no one other than he has been disciplined for not filing a grievance. The evidence discloses that notwithstanding Caluwe's full understanding that the ERC should have been used to air his complaints, he chose to ignore it and to violate the aforesaid category. Therefore, it is concluded that a violation of a Category 2e offense has occurred, and that 25 points should be imposed for said violation.
The remaining two grounds are that Caluwe "made untrue allegations of misconduct which have substantially interfered with (Rogers) ability to work with (him)", and that Caluwe's "actions have made it impossible to transfer (him) to another department." The primary problem with these charges is the fact that nowhere in the termination memorandum are the "untrue allegations of misconduct" and "actions" defined or specifically identified. However, Caluwe's failure to "seek particularization of the charges prior to the hearing", his failure to complain that he was unable to properly defend the charges, the lack of any showing that he was "misled or embarrassed in the preparation of his defense" negate any due process problems. Jacker, 426 So.2d at 1150-1151. But even though no due process problems are present, the record must be clear as to what actions and allegations of misconduct are being relied upon, an adequate record foundation to establish the incipient standard of conduct for District employees must be made, Fla. Cities Water Co. v. Fla. Public Service Comm., So.2d 1280, 1281 (Fla. 1980); Smith, 405 So.2d at 185, and there must be "substantial" evidence to support the allegations that the heretofore undefined standard of conduct has been violated. Bowling, 394 So.2d at 171; Smith, 405 So.2d at 186.
Untrue allegations of misconduct
This charge must necessarily stem from Caluwe's letter of March 29 to Rogers. 9/ Respondent asserts that because the letter included personal attacks on Rogers' and Hall's ability to manage and communicate with employees, and made other various criticisms of both, it substantially impaired Rogers' ability to work with Caluwe.
Because the agency has elected to support this allegation by formulating nonrule policy in a 120.57(1) hearing, it is necessary that it make a record foundation to support certain essential ingredients. First, it must establish that there was indeed a policy whereby employees would be disciplined whenever their actions "made it impossible for (the supervisors) to continue to work with (the employee)." In conjunction with that, the agency must explicate its reasons and underlying authority for that policy, and the types of conduct that would be subject to this nonrule standard of conduct. Then, too, it must demonstrate that all employees, including Caluwe, were aware that it was in effect and a violation of the same could result in being terminated. Finally, the agency must then prove by "substantial" evidence that the "allegations of misconduct", whatever they may be, were untrue as alleged in the termination memorandum, and that the conduct fell within the scope of the nonrule policy previously explained. While such a task may seem difficult, it is well settled that heavy costs are exacted upon an agency which avoids the rulemaking procedure provided by Section 120.54, and opts instead to explain and defend its nonrule policy on an ad hoc case-by-case basis. McDonald, 346 So.2d at 583.
The evidence of record establishes clearly that Caluwe wrote a letter to Hall and Rogers on March 29, and that it contained allegations of misconduct on the part of both individuals. But the record is fatally deficient as to whether the agency had a policy that permits the firing of an employee whenever his conduct makes it "impossible for (his supervisor) to continue to work with (the employee)," whether this nonrule policy was known by employees, including Caluwe, prior to its use, the reasons and authority for such a policy, and the type of conduct that would fall within the scope of this standard. Moreover, while the allegations of misconduct against Hall and Rogers may have been untrue, the only record indication of this is a self-serving statement by Rogers that he had examined the allegations against himself and found them to be untrue. Admittedly, some types of employee misconduct are a "matter of common sense" and "inherent in the employment relationship", Jacker, 426 So.2d at 1151, and need not be the subject of a specific rule of conduct. Nonetheless, the agency must still meet minimum standards of proof when relying upon an unwritten standard of conduct, and at least provide some record foundation when disciplining an employee under incipient policy. Therefore it is concluded that the charge of making untrue allegations against Hall and Rogers which made it impossible for Rogers to work with Caluwe must fail.
Caluwe's actions made a transfer impossible
Again, because the agency wishes to utilize nonrule policy as a basis for this charge, it must establish (1) the existence of a policy of terminating employees whenever their actions made a transfer to another department impossible, (2) the reasons and underlying authority for that policy, (3) the types of conduct which would invoke its sanctions, and (4) whether District employees were aware of the existence of the policy. Finally, it must identify the "actions" which precipitated the disciplinary action, and prove by "substantial" evidence that these acts fell within the purview of the nonrule and warranted Caluwe's termination.
Here, there is no record foundation which shows that the "standard of conduct" was in existence, that employees were forewarned of such a policy, the reasons or underlying authority for such a policy, and the types of activity which the policy was intended to proscribe. This being so, it is unnecessary to reach the questions of whether the agency identified the previously undisclosed "acts", and whether that conduct fell within the realm of the nonrule policy. Accordingly, it is concluded that the final allegation should fail.
The only proven charge against Caluwe is his failure to follow authorized instructions which warrants the imposition of 25 points. Since this does not exceed the 100 point limitation prescribed in the agency's Policy- Index, there are insufficient grounds to terminate him.
Caluwe has requested reinstatement to his position, full back pay, and attorney fees incurred in prosecuting this action. The request for attorney fees must be denied in the absence of any statutory authority to award the same. See, for example, Sheriff of Alachua County v. Hardie, So.2d (Fla. 1st DCA 1983) op. filed 6/1/83. However, he should be reinstated (if he chooses) and given full back pay.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Petitioner be dismissed except for one
Category 2e offense for which 25 points should be imposed. It is further
RECOMMENDED that Petitioner be reinstated in the position of water management engineer III retroactive to August 4, 1982 and that he be given full back pay between that date and the date of reinstatement.
DONE and RECOMMENDED this 8th day of June, 1983 in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1983.
ENDNOTES
1/ The 125 points were accumulated in the following manner: (a) March 19, 1982
25 points for failure to follow authorized instructions, a Category 2e offense; (b) July 30, 1982 - 25 points for failure to follow authorized instructions by not filing a grievance, a Category 2e offense, 25 points for the use of abusive language to a co-worker, a Category 2h offense; and 50 points for use of abusive or threatening language to the public, a Category 3a offense.
2/ These include the following pleadings filed by Petitioner: (a) motion to strike (denied), (b) motion to have Respondent furnish counsel (denied), (c) motion to compel answers to interrogatories (granted in part), (d) motion to suppress deposition (denied), (e) a second motion to compel interrogatories (denied), and (f) motion to adopt and incorporate by reference findings of fact and conclusions of law (granted). Respondent was no less prolific and filed:
(a) motion to strike (granted), (b) motion for more definite statement (denied),
(c) motion to dismiss amendment to petition (granted), (d) motion to quash subpoena ad testificandum (certain protections granted), (e) motion to quash subpoena duces tecum (certain protections granted), and (f) motion to compel answers to interrogatories (denied).
3/ Specifically, Caluwe's letter of July 21 was considered to be "abusive" to Hall and Rogers (25 points - 2h offense), to be "abusive and threatening to the members of the SFWMD Governing Board" (50 points - 3a offense), and constituted a "failure to follow promulgated grievance and complaint procedures" (25 points
2e offense).
4/ While it is true that we are not concerned here with a license revocation as was present in Bowling, nonetheless the firing of an employee cannot be characterized as a "conventional form of regulatory action", Bowling, 394 So.2d at 171, and therefore the proceeding "takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120." Id. 394 So.2d at 171. Thus, the agency must prove "the critical matters in issue . . . by evidence which is indubitably as 'substantial' as the consequences. Id. 394 So.2d at 172.
5/ Parenthetically, it is noted that termination on this basis places an employee in a precarious position, for he is subject to both a written code of conduct and an unwritten informal policy that may change from day to day depending on who is responsible for taking disciplinary action against employees. For this reason, written codes of conduct are preferable even though they are obviously more difficult to develop and adopt in an all- inclusive manner, and require an agency to operate within more narrow constraints when disciplining an employee.
6/ During the hearing it was explained that Hall also considered the letter to be abusive. However, Hall did not appear and testify to corroborate this assertion.
7/ Respondent contends that Caluwe's reference to poor management" in the letter was a "direct and abusive continuation of Caluwe's attack on Hall and Rogers", was in essence an accusation that they were guilty of poor management, and was therefore abusive to them. However, this scenario is merely the agency's view of what the letter was supposed to mean, and falls short of the "substantial" evidence required to support the charge. Bowling, 394 So.2d at 171.
8/ A more reasonable interpretation of the Policy-Index provision is that it was intended to prohibit agency employees from using abusive or threatening language to those non-agency members of the public having dealings or contact with the agency. In any event, the agency failed to make a record foundation to support any interpretation of the policy, much less its own.
9/ The letter of July 21 to the governing board was apparently concerned primarily with allegations against the agency's general counsel. Therefore, it is concluded that this did not constitute an "untrue allegation of misconduct". Moreover, the truth or falsity of those allegations had not yet been determined at the time of the final hearing since no decision has been issued by the Florida Commission on Ethics.
COPIES FURNISHED:
Raymond A. Rea, Esquire Post Office Box 251
Boynton Beach, Florida 33425
Robert L. Norton, Esquire and Michael Mattimore, Esquire
121 Majorca Avenue-Third floor Coral Gables, Florida 33134
John R. Maloy, Executive Director
South Florida Water Management District Post Office Box V
West Palm Beach, Florida 33402
| Issue Date | Proceedings |
|---|---|
| Jun. 08, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 08, 1983 | Recommended Order | Allegations of misconduct by employee not substantiated. |
HARRY PEPPER AND ASSOCIATES, INC. vs SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 82-002649 (1982)
EAST COUNTY WATER CONTROL DISTRICT vs. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 82-002649 (1982)
POSEIDON MINES, INC. vs. SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL, 82-002649 (1982)
SOUTH FLORIDA WATER MANAGEMENT DISTRICT vs. WILLIAM M. BARNETTE, 82-002649 (1982)
