STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1175

)

RAY H. BROCK, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held on June 20, 1986 in Clearwater, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings, to consider whether the Respondent, Ray H. Brock, should be demoted from equipment operator I to maintenance worker I based upon driving safety violations which occurred between May, 1983 and September, 1985 while he was operating City of Clearwater vehicles. The parties were represented as follows:

Petitioner: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

Respondent: Ray H. Brock, pro se

Public Service Division City of Clearwater Clearwater, Florida 33518

At the hearing, the City called R. Gardner Smith, Assistant Director of Public Works/Public Safety, and Muhammed Rahim, Supervisor I, and Respondent testified on his own behalf. The City introduced a total of seven exhibits, and Respondent did not introduce any exhibits. A transcript of the hearing was filed on July 2, 1986.

The parties were allowed to submit post-hearing proposed findings of fact, conclusions of law, and recommended orders, and a ruling on each timely filed proposed finding is included in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been employed by the City of Clearwater in permanent civil service status as an equipment operator I. From February 25, 1985 to May 27, 1985 Respondent was paid as an equipment operator II, and was considered an "acting equipment operator II." Respondent was given this additional pay and "acting" classification since he had passed the test for equipment operator II and had a chauffeur's license.

2. On September 16, 1985 while operating a heavy piece of equipment known as a Bob-cat, Respondent backed the vehicle over a person who was lying in a lounge chair on a public beach, killing the individual. Respondent testified he backed the vehicle up an incline on the beach approximately fifteen feet, but that he did not look behind him or over the incline to see what was there prior to backing the vehicle.

   
   

3. At the time of this incident, Respondent was qualified to operate the Bob-cat since he had passed the equipment operator II exam, had a chauffeur's license and also had extensive experience operating this vehicle. The City of Clearwater allows an equipment operator I to operate a Bob-cat, which generally can only be operated by an operator II, if he has passed the operator II exam, has demonstrated practical experience, possesses a chauffeur's license, and an operator II is not available at the time to move the Bob-cat. On September 16, 1985, an operator II was not available and Respondent's supervisor therefore ordered him to move the vehicle.

   
   

4. Respondent was involved in two other accidents while operating City vehicles prior to the incident on September 16, 1985. On May 18, 1983, Respondent struck a private vehicle and was issued a traffic citation for the violation of the right-of-way. He plead guilty to this charge. On March 15, 1984, Respondent struck the back of a private vehicle and was charged with careless driving. He also plead guilty to this charge and paid a traffic fine. Respondent received warnings from his supervisors following these previous incidents.

   
   

5. On or about March 11, 1986, Respondent was served with a Demotion Notice based upon the three traffic incidents noted above. The Notice sets forth the City's intent to demote Respondent from equipment operator I to maintenance worker I due to carelessness that affects the safety of city personnel or the public, as well as endangering City property and equipment. Respondent timely requested this hearing on the Demotion Notice.

   
   

   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 1831.

   
   

7. Rule 14 of the Civil Service Rules and Regulations for the City of Clearwater provides in Section 1, paragraphs (b) and (k) that incompetence or inefficiency in the performance of an employee's duties, or the violation of any reasonable regulation or order which may reasonably be expected to result in injury to the City or the public are grounds for demotion, suspension, or dismissal of an employee in the classified civil service.

   
   

8. In this case, the City has the burden of proving the offense charged and establishing that the offense constitutes a grounds for disciplinary action under Rule 14, above. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976).

   
   

9. The City has met its burden in this case. The evidence establishes that Respondent had three accidents while operating City vehicles between May, 1983 and September, 1985. In each instance, Respondent was at fault, and his actions were careless. This series of events establishes that he has been inefficient in the performance of his job responsibilities. It has also been

established that his careless actions constitute a violation of reasonable regulations or orders which did in fact cause injury to the City and the public.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent's appeal be DISMISSED and a Final Order be issued by the City of Clearwater confirming the disciplinary action of a demotion from equipment operator I to maintenance worker I.

DONE AND ENTERED this 21st day of July, 1986 in 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 21st day of July, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1175

Rulings on the City of Clearwater's Proposed Findings of Fact:

1 Adopted in Finding of Fact 5. 2,3 Adopted in Finding of Fact 4.

4 Adopted in Findings of Fact 2,3.

COPIES FURNISHED:

Miles A. Lance, Esquire Assistant City Attorney

P.O. Box 4748

Clearwater, Florida 33518

Ray H. Brock

Public Service Division City of Clearwater Clearwater, Florida 33518

Docket for Case No: 86-001175

Orders for Case No: 86-001175