STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0887

)

WILLIAM TRILLARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Clearwater, Florida1 on April 25, 1966, before Donald D. Conn a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4746 Clearwater, Florida 33516

Respondent: William Trullard, pro se

1620 Rainbow Drive

Clearwater, Florida 33515

At the hearings the City of Clearwater, Petitioner called R. Gardner Smith, Assistant Director of Public Works/Public Safety- and also introduced four (4) exhibits. William Trullard Respondents testified on his own behalf, called Jesse Myrick, and also introduced six (6) exhibits. No transcript of the hearing has been filed. The parties were allowed to submit post-hearing proposed findings of fact, and a ruling on each timely field proposed finding is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent has been employed since October, 1972, by Petitioners and at all times material hereto he has been a heavy equipment operator with permanent status in the civil service system.

   
   

2. There is no factual dispute that on January 2, 1986, Respondent was involved in an accident causing damage to the right rear fender of a city vehicle in the approximate amount of $100. Respondent admits he was at fault in this accident. The accident review board determined this was a `"chargeable" accident and Respondent was suspended for one day, without pay, on January 31, 1966, upon the recommendation of R. Gardner Smith.

   
   

3. In recommending a one day suspension, without pay, Mr. Smith considered other chargeable accidents occurring within a two year period prior to January 2, 1966, in which Respondent was involved. There were two such chargeable accidents within this period: 2/1/64 Respondent was charged with striking a

   tree and breaking a mirror on the city vehicle for which he received verbal counseling, 11/6/65 Respondent was charged with breaking a turn signal and headlight on a city vehicle for which he received a written warning. Three other non-chargeable accidents also occurred during this periods but were not considered in recommending the one day suspension imposed in January, 1966.

   
   

4. During the hearing, Respondent disputed whether he was at fault for the two previous chargeable accidents. He explained that the February, 1964 accident occurred in a sandy area which was very wet due to heavy rains. As he was driving his vehicle into the sandy area, one wheel sunk into the sand causing the vehicle to come in contact with a tree limb which broke a mirror on the vehicle. This is confirmed by Jesse Myrick a co-worker. Regarding the November, 1965 accident, Respondent contends that the headlight was already broken on the vehicle and he only damaged the turn signal. By letter dated April 4, 1966 his supervisor, John Stout, expressed his opinion that Respondent was not at fault in the November, 1965 incident. Nevertheless, the accident review board did determine that these were both chargeable accidents, and Respondent took no formal action to appeal prior disciplinary action based on these two accidents.

   
   

5. Respondent's accident record prior to February 1, 1964 was not considered by Smith when he recommended the one day suspension, without pay, and is therefore irrelevant in this case.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes, City of Clearwater Ordinance 1631.

   
   

7. The only issue in this case is whether the facts admitted and established by the record support the disciplinary action taken, a one day suspension without pay. Respondent has been charged in connection with the January 2, 1966 accident with violating Rule 14, Section 1 paragraph (c) of the Civil Service Rules and Regulations in that he "has been wantonly careless or negligent in the care of the property of the City or has knowingly permitted condoned and/or participated in the unauthorized use thereof." Specifically Petitioner charges:

   
   

   On January 2, 1966 William Trullard driving a City of Clearwater vehicle was pulling out of a parking space and the right rear wheel area struck the door of another vehicle parked in a space next to his vehicle causing minor damage to both vehicles. This action violates the Guidelines for Disciplinary Actions, Level 2, Offense #5: (2nd occurrence)- Chargeable accidents of $25.00 or more in damages (Department or Division Head in conjunction with Safety Officer shall determine chargeable accidents)(a

   written warning or reprimand may be issued for any chargeable accident of less than $25.00 in damages).

8. Respondent has admitted he was at fault in this accident but disputes the penalty imposed since he does not feel that he was at fault for the two chargeable accidents occurring in the two years prior to this incident. However, the evidence establishes that these were "chargeable" accidents as determined by the accident review board for which Respondent received less severe discipline than that imposed in this instance, and which he did not appeal.

   
   

9. It is appropriate for Petitioner to consider recent chargeable accidents in assessing the action to be taken in this case. Certainly three chargeable accidents in a two year period warrants a one day suspension, without pay. The petitioner has followed a graduated discipline policy and the action taken in this case is consistent with that policy.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent's appeal be DISMISSED, and a Final Order be issued confirming the disciplinary action of a one day suspension, without pay, which has been taken against Respondent.

DONE and ENTERED this 7th day of May, 1986, at Tallahassee Florida.

DONALD D. CONN

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 7th day of May, 1986.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0887

Rulings on Petitioner's proposed findings of fact:

1. Adopted in Finding of Fact number 2.

2. Adopted in Finding of Fact number 3.

   Rulings on Respondent's proposed findings of fact: 1-2. Adopted in Finding of Fact number 4.

3. Adopted in Finding of Fact number 2.

COPIES FURNISHED:

Miles A. Lancer, Esquire Assistant City Attorney Post Office Box 4746 Clearwater, Florida 33516

William Trullard 1620 Rainbow Drive

Clearwater, Florida 33515

Docket for Case No: 86-000887

Orders for Case No: 86-000887