STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2635

)

ARTHUR TORVELA, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on January 5 and 6, 1984, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Robert L. Norton, Esquire

121 Majorca Avenue, Third Floor Coral Gables, Florida 33134

For Respondent: Raymond A. Rea, Esquire

Post Office Box 251

Boynton Beach, Florida 33425 Issue

Whether respondent should be terminated from his employment with the South Florida Water Management District on the basis of inadequate overall performance.

Background

By petition for hearing dated August 3, 1983, Arthur Torvela ("respondent") requested a Section 120.57(1) hearing to challenge petitioner South Florida Water Management District's ("SFWMD") July 9, 1983 termination of his employment. On August 16, 1983, SFWMD referred this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for January 5-6, 1984. Pursuant to order, the parties filed a prehearing stipulation on December 30, 1983.

At hearing, SFWMD presented the testimony of Jorge Narban, Thomas MacVicar, Peter Rhoades, Robert Chapman, and Don Wodraska. Respondent testified on his own behalf and presented the testimony of Robert Goodrick, and Frank Caluwe, Jr. SFWMD Exhibit Nos. 1 through 29 were received into evidence, as were respondent's Exhibit Nos. 1 through 6 and 8 through 18. 1/ Respondent's Exhibit No. 7 was rejected as inadmissible.

The transcript of hearing was filed on January 25, 1984. The parties filed proposed findings of fact and conclusions of law on February 24, 1984. Those proposed findings which are incorporated herein are adopted; otherwise they are rejected as unsupported by the necessary quantum of evidence or unnecessary to resolution of the issues presented.

Based on the evidence presented, the following facts are determined:

FINDINGS OF FACT

I.

Statement of the Parties' Positions

1. In their prehearing statement, the parties set forth their respective positions on the propriety of respondent's termination:

   
   

   SFWMD: Arthur Torvela [respondent] exhibited numerous performance problems throughout his career as an engineer with the South Florida Water Management District. Torvela's perfor- mance has been consistently marginally acceptable or less. Recently, Torvela has failed to properly perform the duties and projects assigned to him in spite of clear and explicit direction and warnings by his supervisors. Torvela has admitted that his work has been found to be unsatisfactory by several different supervisors. Therefore, based upon his overall performance failures, Torvela was properly discharged.

   
   

   Respondent: Throughout Torvela's career with the Respondent, his work never received an overall rating of unsatisfactory by his superiors. Merit review ratings at the District are conducted in an arbitrary and selective fashion. Other employees with similar job performance have not been termi- nated from employment with the Respondent.

   As a result of Torvela's subpoenaed testimony to an investigator from the Florida Commission on Ethics which suggested that certain District staff members gave preferential treatment to Stanley Hole (a District Governing Board Member) during the permit review process, Torvela was singled out for special treatment.

   This special treatment was initiated as a work evaluation assignment which was designed

   in such a fashion to prohibit proper completion by an engineer in a similar position to Torvela. Subsequently Torvela was discharged.

   
   

   II.

   
   

   Respondent's Work Performance Was Inadequate Over an Extended Period

2. Respondent was employed in an entry level Water Resource Engineer I position by SFWMD from November 18, 1982, to July 15, 1983, when he was terminated for alleged inadequate overall performance.

   
   

3. A Water Resource Engineer I position is "an entry level professional position involving routine engineering work in the analysis and review of hydrologic and water resources related projects." (R-1) The standardized position description states that "Experience in computer programming is desirable." (R-1)

   
   

4. Nevertheless, when SFWMD recruited to fill respondent's position, it made proficiency in the use of computers a qualification for the job. In respondent's initial employment interview, it was explained to him that his main function in the Water Resource Division would involve computer programming. Respondent accepted the job knowing that proficiency in computer programming was an explicit job requirement. (Testimony of Marban, Chapman, Torvela; P-27)

   
   

5. During his first 14 months with SFWMD, respondent worked as an Engineer I in the Permit Review Section of the Division of Surface Water Management, part of the Resource Control Department. Frank A. Caluwe, Jr. was his immediate supervisor and Charles Hall was his Division Director.

   
   

6. After respondent had worked with SFWMD for about four months, Mr. Hall told him that he would be terminated. Respondent sought help from his supervisor, Mr. Caluwe, who intervened on his behalf. Because of Mr. Caluwe's timely intervention, respondent was not terminated from his employment.

   
   

7. In May 1981, respondent received his six-month probationary review from Mr. Caluwe, who gave him an overall satisfactory rating. He noted, however, that "his [respondent's] knowledge of work and quality of work should improve through OJT. The employee needs considerable improvement in communication skills." He recommended that respondent take public speaking and technical writing courses. (P-28)

   
   

8. In January 1982, respondent--at his own request--was transferred to the Water Resources Division. Just prior to his transfer, he was given a second merit review, with an overall rating of "excellent." He received this rating despite the fact that he was doing minimal work at that time. He believed he was given the "excellent" rating because he was leaving Surface Water Management. He attributed his problems in Surface Water Management to a personality conflict between he and Mr. Hall. When he received the "excellent" rating, respondent disagreed with it, making this notation on the end of the review sheet:

   
   

   During my 14 months in Resource Control Mr. Hall:

   
   

   1. Did not talk to me.

   2. Was not fair to me.

      
      

      (R-10)

      
      

9. In July 1982--after completing six months in the Water Resource Division--respondent was given the required probationary merit review. On that review, he was rated overall as "minimally acceptable," an unusually poor rating in that Division and one which, in actuality, was considered unsatisfactory. 2/

   His then supervisor, Steve Lin, commented that he needed to improve his computer skills and knowledge of hydrology. Jorge Marban, his reviewing Division Director, extended his probationary period for another three months, noting that he "seems to have problems in adjusting to Water Resources and computer related subjects." They recommended that respondent obtain training in all aspects of computer programming. Although respondent disagreed with this rating, there is no indication that he appealed it.

   
   

10. Although given a "minimally acceptable" rating, it is clear that respondent's work performance during his first six months in Water Resources was, in fact, unsatisfactory. For the first two months, his supervisor, Tom MacVicar, assigned him a project involving rainfall data and computer programming. Although this would not have been a difficult project for an Engineer I, respondent was unable to complete it--although he worked on it six to eight weeks, and had continuing assistance from Mr. MacVicar. Mr. MacVicar finally reassigned this project to a technician who completed the project in two weeks. Respondent was then reassigned to work under another supervisor, Steve Lin. During his two months under Mr. MacVicar's supervision, respondent lacked motivation and showed little initiative. He needed constant, close and direct supervision. He lacked the requisite technical skills and needed to improve all aspects of his computer knowledge. (Testimony of MacVicar, Marban, P-21)

    
    

11. Mr. Lin assigned respondent two specific projects: to develop a water budget for Lake Okeechobee, and estimate the amount of water back-pumped into Lake Okeechobee by private pumps. Respondent satisfactorily completed the back- pumping estimates but, after four or five months, was unable to complete the water budget. This would not have been a technically difficult task for an Engineer I, and he should have been able to complete it within the time alloted. (Testimony of Marban)

    
    

12. When the "minimally acceptable" merit review was given respondent, he was counseled by Mr. Marban and Mr. Lin. They discussed with him his deficiencies and questioned whether he really wanted to spend his career in water resources. They also encouraged him to take an in-house computer programming course. Three months later, he was given his next merit review. (Testimony of Marban)

    
    

13. This (extended probation) merit review rated him satisfactory or "completely acceptable." Although Mr. Lin initially rated him "minimally acceptable" in "knowledge of work," "initiative" and other performance standards, he changed his evaluation after encouraged to do so by Mr. Marban. Mr. Lin also scratched out his written comment on the last page of the review: "However, this [good attendance, quietness] is not enough [for respondent] to be a member of our Division." (TR-30) If Mr. Marban had not intervened on respondent's behalf, respondent would have received a second "minimally acceptable" rating, mandating his dismissal. SFWMD does not retain employees whose level of performance is consistently "minimally acceptable." Even after the review was upgraded (due to Mr. Marban's intervention), it indicated that respondent needed to improve his computer skills, try harder and show more motivation. (Testimony of Marban; P-21)

    
    

14. Mr. Marban upgraded respondent's initial review in order to avoid terminating him. He was convinced that respondent had shown some improvement and that he could be motivated to become a productive member of the Division.

    On respondent's request, Mr. Marban also moved him from under Mr. Lin's supervision and placed him, again, under the supervision of Tom MacVicar. Three

    months later respondent received the required semiannual merit review. (Testimony of Marban)

    
    

15. In this January 1983 semiannual merit review, respondent again received a "minimally acceptable" rating. His work performance had been inadequate and he had shown a lack of motivation to improve. Mr. MacVicar's rating comment reiterated the recurring problem with respondent's performance:

    
    

    Art has been here for 12 months and contri- buted very little. His technical background is very weak (hydrology and computers) and he has displayed very little ambition to improve his abilities. He must increase his motivation if he is to become useful to the Division.

    
    

    Mr. MacVicar also noted that respondent "does not seem interested in improving his engineering ability," and "needs constant close supervision." (P-3) In his reviewing capacity, Mr. Marban wrote that it is taking respondent "more time than expected to become proficient in this area [computer programming]." (P-3) Although Mr. MacVicar had rated respondent "unacceptable" for "initiative," Mr. Marban increased it to "minimally acceptable." He also up-graded a "minimally acceptable" rating for "communication skills" to "completely acceptable." 3/ They, again, recommended additional training in computer programming.

    
    

16. This particular merit review was the subject of a 4.5 hour conference between respondent, Mr. Lin, Mr. MacVicar, and Mr. Marban. Although respondent disputed each of the ratings on the review, the overall "minimally acceptable" rating was not changed.

    
    

17. Mr. Marban, employed as a supervisor by SFWMD for 10 1/2 years, has never known an instance where an employee was given two "minimally acceptable" merit reviews. He discussed the matter with his supervisor, Pete Rhoads, Director of Resource Planning. Several months later, Mr. Rhoads sent a memorandum to respondent emphasizing the seriousness of the situation and the need to improve his performance.

    
    

18. In that memorandum, dated May 2, 1983, Mr. Rhoads advised respondent that if his performance did not improve, he would face disciplinary action. He further advised him that he would be given specific work assignments and would be required to submit weekly progress reports. Meetings would be held, not less frequent than once every two weeks, to assess his progress and performance. It was explicitly stated that the accuracy and completeness of his work product would be the basis of his next merit review. (P-5)

    
    

19. This memorandum resulted in respondent being given two specific work assignments on May 5, 1993: A 30-minute unit hydrograph for Royal Palm Colony, and a unit hydrograph for the Jim Branch Creek Basin. These projects were designed to test respondent's engineering ability, not his computer skills. A Water Resource Engineer I, with average skills conscientiously applied, could have completed these two projects with little difficulty. (Testimony of Marban, MacVicar)

    
    

20. On May 31, 1983, Mr. Marban, together with Mr. MacVicar and Mr. Lin, evaluated respondent's completed hydrograph for Royal Palm Colony. Several inaccuracies were found, including an error in estimation of velocities and errors in arithmetic. The hydrograph also revealed a basic misconception of the

meaning of a unit hydrograph, a failure to understand the concept of a 30-minute unit hydrograph, and a lack of knowledge on how to develop the hydrograph using the Cypress formula for peak run-off. His performance of this hydrograph was unsatisfactory. Respondent was then instructed to proceed with the second assignment, which was required to be completed by June 28 and evaluated on June

1. He was given this explicit warning:

   
   

   After this evaluation, an assessment of your work will be made and appropriate personnel action, up to and including discharge, will be taken if your performance is found unacceptable.

   
   

   (P-18)

   
   

   1. Respondent also failed to adequately perform the second assignment. His work product indicated a basic error in engineering judgment. In defining the land area which would provide water flow to a specific weir, respondent included a significant portion of land which was downstream from the weir: For these lands to contribute flow to the weir, water would have had to run uphill.

      
      

   2. Respondent's failure to adequately perform these two specific engineering tasks precipitated his termination on the basis of his overall inadequate job performance.

      
      

      III.

      
      

      SFWMD Followed Termination Procedures

      
      

   3. In terminating respondent, SFWMD followed its Corrective Action Procedures for dealing with employees with performance problems. Under these procedures, where unsatisfactory performance is the result of lack of skills, knowledge, or abilities needed to meet the performance standard, supervisors must 1) document the problem; 2) discuss the problem and a solution with the employee; and 3) document expected performance standards and plan solutions. Respondent's inadequate performance was the subject of numerous merit reviews, and his performance problems and solutions were discussed with him many times. Performance expectations were documented and clearly expressed by his supervisors. He was provided constant and close supervision and given additional in-house computer training. In an effort to accommodate him, he was transferred between divisions and among supervisors. He was given the benefit of the doubt on numerous occasions, in hopes that his future performance would improve. (Testimony of Marban, MacVicar; R-3)

      
      

      IV.

      
      

      Termination Unrelated to His Testimony Before Ethics Commission

      
      

   4. Respondent holds the sincere belief that he was terminated because of his testimony before the State Ethics Commission concerning alleged improprieties by SFWMD employees. His belief has no basis in fact and is wholly unsubstantiated. He has shown no nexus between his testimony before the Commission and his termination. None of his supervisors, who were instrumental in and responsible for his ultimate termination, were aware of his testimony before the Commission when they faulted his job performance or recommended his termination. Both Mr. Marban and Mr. MacVicar deny knowledge of his testimony

      (about alleged preferential treatment given to a SFWMD Board member) and their denials are accepted as credible and persuasive. Despite the absence of evidence, respondent persists in his belief that SFWMD employees conspired to terminate him in retaliation for his testimony. The uncorroborated and conclusory testimony which he relies on to prove his theory is, at best, speculative, inconsistent, and unreliable.

      
      

      V.

      
      

      Failure to Show Respondent was Singled Out for Arbitrary Treatment

      
      

   5. Respondent has also failed to substantiate his allegation that he was singled out for arbitrary termination when other employees with like performance records were not similarly treated. To the contrary, the evidence demonstrates that there were few, if any, employees who performed their jobs as poorly as did respondent. Of 1,651 employees evaluated in SFWMD between September 1982 and September 1983, only 17 were rated "minimally acceptable" or less. During that same time period, respondent was the only employee in the Water Resource Division who received a minimally acceptable" rating. For the entire Resource Planning Department, the average evaluation was "excellent." (Testimony of Chapman; P-24, P-25)

      
      

      VI.

      
      

      Ultimate Conclusions

      
      

   6. Respondent was terminated from his employment because of his overall inadequate performance demonstrated over a lengthy period of time. He clearly lacked the knowledge and skills in engineering and computer programming which his supervisors had a right to expect and require. He also lacked the motivation to improve his performance and overcome his deficiencies. Despite close supervision, frequent counseling, opportunities for additional training, and explicit warnings by his supervisors, his inadequate performance persisted. SFWMD has good cause to terminate him from his employment.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57, Fla. Stat. (1983).

      
      

   8. SFWMD is authorized to discharge employees for work performance failure. See, Section 373.079(4), Fla. Stat. (1983). In doing so, it must comply with its own established personnel policies and guidelines. Cf. Board of Trustees of Internal Improvement Trust Fund v. Rey, 444 So.2d 1110, 1112 (Fla. 1st DCA 1984).

      
      

   9. When SFWMD's termination of an employee is challenged in Section 120.57(1) proceedings, such as here, it has the burden of proving the factual basis for its action. When an employee's job is at stake, the proceeding is characterized as penal in nature and the critical matters in issue must be proven by "evidence which is indubitably as `substantial' as the consequences." Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

      
      

   10. Here, SFWMD has sustained its evidentiary burden. The evidence convincingly demonstrates that SFWMD has good cause to terminate respondent for

his inadequate overall performance; and that applicable SFWMD personnel policies have been followed.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That SFWMD terminate respondent from his employment for inadequate overall work performance.

DONE and ENTERED this 15th day of June 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 15th day of June 1984.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as and "P- " and "R- ," respectively. Pages in the transcript of hearing will be referred to as "TR- ."

2/ Mr. Marban, the Division Director for the last 7 years, has never before had an employee receive a "minimally acceptable" merit review.

3/ Because respondent had worked for Mr. Lin for part of the six-month period, Mr. Marban gave respondent the higher of the ratings given by Mr. Lin and Mr.

MacVicar.

COPIES FURNISHED:

Robert L. Norton, Esquire

121 Majorca Avenue, Third Floor Coral Gables, Florida 33134

Raymond A. Rea, Esquire Post Office Box 251

Boynton Beach, Florida 33425

John Wodraska, Acting Executive Director Post Office Box V

West Palm Beach, Florida 33402

Docket for Case No: 83-002635

Orders for Case No: 83-002635