vs. ) CASE NO. 89-3063
ROBER C. BRENNAN, )
Respondent. )
The final hearing in this case was held on January 12, 1990, in Clearwater, Florida, before Donald D. Conn, Hearing
Officer, Division of Administrative Hearings.
For Petitioner: Deborah S. Crumbley, Esquire
P. O. Box 639 Tampa, FL 33601
P. O. Box 1669 Clearwater, FL 34617
The issue in this case is whether Roger C. Brennan (Respondent) should be suspended for five days without pay by the City of Clearwater (Petitioner) for an alleged violation of Rule 14, Sections 1(e) and (k), of the City's Civil Service Rules, based upon his failure to turn over tape recordings of interviews he conducted in late March, 1989, while investigating an employee
under his supervision, and also based upon the contents of a memorandum he wrote on March 30, 1989, at the conclusion of this investigation.
not propose to discipline Respondent for the conclusion he reached in his investigation, and has dropped any charge of inefficiency against Respondent which had been brought under Rule
14, Section 1(b). Rather, the proposed discipline is based solely upon the Respondent's failure to turn over certain tape
memorandum of March 30, 1989.
At the hearing, the Petitioner called E. J. Robinson, Affirmative Action Officer, George Fasching, Accounts Manager of
Administration, to testify, and also introduced six exhibits.
The Respondent testified on his own behalf, and also called William M. Tedder, Accounts Clerk, Robert M. Brumback, Assistant Director of Public Works/Utilities, Helga Graf and Patricia Meri,
employees of the City of Clearwater. Respondent introduced two
exhibits.
No transcript of the final hearing was filed. The parties requested, and were given fifteen days after the hearing
of this Recommended Order.
At all times material hereto, the Respondent has been employed by the Petitioner as a Utilities Credit Manager. His immediate supervisor is George Fasching, and at the time of
the matters at issue in this case, his ultimate supervisor was
Robert Brumback, to whom he reported through Fasching. Mark
Tedder was an employee under Respondent's supervision.
On March 23, 1989, Respondent was directed by Brumback to investigate an incident involving Tedder, who was
alleged to have engaged in a prank on another employee and then
to have lied to the Affirmative Action Officer, E. J. Robinson,
about his part in the prank. Robinson had recommended to Brumback that disciplinary action be taken against Tedder. Thereupon, Brumback wrote a memo to Respondent on March 23, 1989,
directing that he evaluate certain information about the Tedder
incident which was provided to him along with the memo from Brumback, "make appropriate inquiries, and then recommend, through the chain of command to Mr. Fasching, the action you feel
should be taken in this matter." Brumback directed Respondent to
respond to this memo by March 30, 1989.
Because Brumback had received a complaint from Helga Graf that Respondent was conducting a broad investigation
of the Utilities Department, not limited to the Tedder incident,
and was tape recording interviews, Brumback issued a clarifying
memo to Respondent on March 28, 1989, stating:
The purpose of my March 23rd memo was not to have you look into anything outside the scope of your Credit Collection Section. The purpose of my memo was to have you look into Mark Tedder's action with Pat Meri that was alleged to be a prank, and the fact that in an interview with
E. J. (Robinson), Mark denied having any part in the prank. All I want you to do is to look into the incident between Mark Tedder and Pat Meri and Mark's interaction with E. J. Robinson. Based upon your assessment of that situation
and the fact that Mark Tedder denied to E. J. Robinson that he participated in the prank, I want you to recommend to George Fasching the action you deem appropriate with regard to Mark Tedder's action and conduct..
Based upon Respondent's testimony and demeanor at hearing, it is found that he was upset and angered by this clarifying memo. He felt his investigation was being unduly
restricted and impeded by Brumback. Respondent called Brumback
on the telephone to find out why he was "putting the blinders
on", and to voice objection. Brumback directed him to stay within the authorized scope of the investigation as set forth in
his memoranda, and to obtain his approval on a case by case basis
before conducting further interviews.
At the time of this clarifying memo of March 28, 1989, Respondent had already interviewed Mark Tedder, Pat Meri,
and a third employee by the name of McCann. He had tape recorded
the interviews of Meri and McCann, but not his interview of Tedder. Respondent conducted no further interviews after receiving Brumback's clarifying memo.
On March 30, 1989, Respondent wrote a memorandum
to
his supervisor, George Fasching, which contained his recommendation that no action be taken against Tedder, and which
stated, in pertinent part:
it is apparent to me that Mr. Brumback is pursuing a personal vendetta against Mr. Tedder.
.
committed a
.
By Mr. Brumback inferring that Mr. Tedder
a "crime", he has laid a foundation that this is much more serious infraction than it truly is. .
Mr. nature
violated Assistant who
In making appropriate inquiries, as directed by
Brumback, information became available to me that lead me to believe that similar offenses of
and scope have occurred without any disciplinary action. . . These offenses occur and are
at all levels from the Clerk Typist to the Public Works Director of Utilities (Brumback), has been observed a time or two to tell
distasteful
(to say the least) joke, during working hours. . In the two and one half (2 1/2) hours of tape recorded conversations I had with various City employees, it is apparent to me that there is a wide spread cover up, . . . of infractions at all levels . . . . But, to choose one employee, as it has been done to this employee on another
occasion,
in my opinion would be OUTRIGHT RETALIATION. (Underlined Emphasis Supplied.)
Respondent's reference in his March 30 memo to Brumback inferring that Tedder had committed a crime resulted from Respondent's interpretation of a question which Brumback asked of Pat Meri, as reflected in a transcript of an interview which Brumback had with Meri on March 16, 1989, concerning the alleged prank. Brumback provided Respondent with this transcript on March 23, 1989, along with his initial memo directing Respondent to investigate this prank. As shown in the transcript, Brumback asked, "Mark Tedder was the perpetrator of the prank?" Respondent contends that by his use of the word "perpetrator" Brumback intended the inference that Tedder had committed a crime, citing to the definition of this term in Webster's Dictionary and Black's Law Dictionary.
There is no evidence in the record to support Respondent's contention that Brumback was accusing Tedder of
criminal conduct by his use of the word "perpetrator", or that
Brumback has any knowledge of the technical definition of this
term, as reflected in Black's Law Dictionary. Webster's New
Collegiate Dictionary defines "perpetrate" as mearing "to bring
about or carry out (as a crime)", and The American Heritage Dictionary of the English Language defines this term to mean "to
be guilty of; commit; to carry out; perform", and uses the term
in the following alternate ways: "perpetrate a crime; perpetrate
a practical joke". Respondent simply ascribed to the word used
by Brumback the meaning and inference which he preferred, and not
the alternate, acceptable meaning which does not have any connotation of criminal activity.
Despite his concern for, and his insistence upon the precise use of language in memoranda, in his memo of March 30
Respondent accused Brumback of "pursuing a personal vendetta
against Mr. Tedder." In contrast to the inference which Respondent drew from Brumback's use of the word perpetrator,
Respondent used the specific term "vendetta" in his memo, and no
inference need be drawn from the use of this word to conclude
that Respondent was accusing Brumback of wrongful conduct.
At
hearing, Respondent defined the word "vendetta" as meaning "unreasonable and without justification". However, Webster's and
The American Heritage Dictionary, as well as Roget's Thesaurus,
all define this term to mean "a prolonged feud marked by bitter
hostility", "a hereditary blood feud between two families, perpetuated by retaliatory acts of revenge", and "any act or
attitude motivated by vengeance". There is no evidence in the
record which would support Respondent's assertion that Brumback
was pursuing a personal vendetta against Tedder, as this term is
commonly used and understood. The use of the term "vendetta" by
the Respondent in his memo of March 30, with its intended effect
of accusing Brumback of wrongful conduct, constitutes the use of
offensive conduct and language toward his supervisor.
This is not the only example in his memo of March 30, of the use of offensive language by Respondent. In all capital letters, he states that disciplining Tedder would amount
to "OUTRIGHT RETALIATION". While this certainly has a dramatic
effect, it is also needlessly offensive when taken in the context
of Respondent's charge that there is a "wide spread cover up
of infractions at all levels." Respondent had been directed to
simply look into a prank in which Tedder was alleged to have been
involved, and to recommend what, if any, discipline would be
appropriate. Instead, he concluded that Brumback was pursuing a
"personal vendetta" against Tedder, that Brumback had accused
Tedder of criminal activity, that there was a widesperead cover
up, and that disciplining Tedder would be an act of "OUTRIGHT
RETALIATION". The entire tone and language used in his memo of
March 30, constitute offensive conduct and language toward his
supervisor, Robert M. Brumback.
Respondent failed to obey Brumback's lawful and reasonable direction that Respondent limit himself to an inquiry
into the prank in which Tedder was alleged to have been involved,
asset forth in Brumback's memoranda of March 23 and 28, as well
as in his telephone conversation with Respondent on March 28.
This conduct constitutes insubordination. Even after the limited
scope of his investigation was clarified, and after he clearly
understood this limited scope, Respondent included accusations
against Brumback and the Utilities Department in his March 30
memo which are totally unrelated to the alleged prank he was
supposed to be looking into.
It is undisputed that Respondent tape recorded
two
interviews of City employees he conducted during his investigation, and that he has failed to turn those tape recordings over to his supervisor. Instead, Respondent claims he
sent the tapes to the Equal Employment Opportunity Commission,
but the Commission has no record of ever having received such
tapes. He claims he did this to avoid any possibility of someone
tampering with this evidence. Respondent claims he sent the
tapes in the regular mail, and did not request a return receipt.
He did not seek or receive authorization to send these tapes to
the Commission. After he made his charge of a widespread cover
up in his March 30 memo, he was asked to turn over the tape recordings made in the course of his investigation so that the
basis of this charge could be understood and explored, if necessary. Respondent claims he has been unable to comply with
this request because he no longer has the tapes. Thus, Respondent has disposed of materials, without authorization,
which he collected in the course of an investigation he was directed to perform by his supervisor, and his action has resulted in this material either being lost or destroyed.
While he was not specifically instructed by Brumback or anyone else to preserve and turn over all tape recordings made during his investigation, there was no way that
Brumback could have anticipated that Respondent would have engaged in a course of conduct which included initiating a far
reaching investigation of the Utilities Department, with tape
recorded interviews. It is reasonable to assume that a supervisor, such as Respondent, who is directed to look into
allegations about an employee under his supervision would be
expected to retain all information and materials gathered in the
course of his investigation for possible review by others. Respondent's handling of these tapes was careless and unreasonable. Nevertheless, this conduct does not constitute
insubordination which is the "refusal to perform work assigned or
failure to comply with written or verbal instructions of the supervisory force", as that term is defined in the Petitioner's Guidelines for Disciplinary Action. He was given no
written or verbal instructions concerning materials gathered in
the course of his investigation, although it is reasonable to
expect that a supervisor, such as Respondent, would not deal with
such materials so carelessly and would retain them for further
review, if necessary. Respondent's explanation for his action,
that he was concerned this evidence would be destroyed, is unsubstantiated.
Rule 14, Sections 1(e) and (k) provide that any employee of the City of Clearwater may be disciplined if he has:
been offensive in his conduct or
language toward his fellow employees, City officers, or the public.
violated any lawful and reasonable official
failure
regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or
to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department. . .
Respondent urges, based upon a listing of all prior disciplinary actions taken against City employee's during1987 through 1989, that the action taken against him was
excessive and not consistent with discipline imposed in other
cases. Some of the cases listed reflect disciplinary action for
violating Rule 14, Section 1(k), Level 4, which is consistent
with the action taken in this case, and some of the listed cases
appear to reflect lesser or greater discipline. However, each
case must be dealt with individually based upon the specific
facts and circumstances involved in that case. The summaries
upon which Respondent relies contain no details about the facts
involved in each case, and therefore, these summaries do not
constitute either competent or substantial evidence that the
penalty in this case is inappropriate, because it cannot be determined if the facts in this case are at all similar to the
facts in any of these other cases.
The Petitioner's Guidelines for Disciplinary Action applicable in this case classify this as a Level 4 Offense
for which a three to five day suspension, and forth disciplinary
points, is recommended for the first offense. Rule 14,
Section 2
describes suspensions as being without pay. More severe
discipline may be imposed "if it is felt necessary in the best
interest of the department and/or City." (See City Exhibit 2,
page 1 of attachment.) The discipline which Petitioner has imposed in this case against Respondent, a five day suspension
without pay, is within the permissible range of discipline for
this offense, and is reasonable under the circumstances.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this
cause. Section 120.65(9), Florida Statutes; Rule 2, Section 3,
and Rule 14, Section 9, Clearwater Civil Service Board Rules and
Regulations.
In this case the Petitioner has the burden of proving
the offense charged, and establishing that the offense constitutes grounds for disciplinary action under Rule 14. Balino v. Department of Health and Rehabili~Lative Services, 348
So.2d 349 (Fla. 1st DCA 1977); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976). Petitioner has charged
Respondent with violating Rule 14, Sections 1(e) and (k), and the
evidence produced clearly establishes that the Pet.itioner has met its burden in this case, and that the disciplinary action taken, a five day suspension without pay, is within the range of
recommended discipline for a violation of Rule 14, Section 1(k)
alone, and is therefore appropriate.
Respondent's conduct and language used in his memo of
March 30, 1989, constitute insubordination. He clearly went
beyond the authorized scope of his investigation in the matters
which he included in his memo, and the language he used against
his superior, Robert M. Brumback, that was offensive, disrespectful, unfounded and accusatory. Respondent was upset
with Brumback because he felt that Brumback had unduly restricted
his scope of inquiry. Yet, it was Brumback who authorized Respondent to initiate the investigation into the Tedder prank, and without Brumback's authorization, Respondent had no authority
to conduct any investigation. Brumback acted reasonably when it
was brought to his attention by another employee that Respondent
was conducting a far reaching investigation that was interfering
with the ability of employees to do their jabs. Thus, Respondent's conduct in preparing, and the language he used in
his memo of March 30, 1989, constitute violations of Rule 14,
Sections 1(e) and (k).
The recommended discipline for a violation of Rule 14,
Section 1(k) alone is a three to five day suspension without pay.
which is within this recommended range. There is sufficient
only Section 1(k), but Section 1(e) as well. In addition, while
his handling of the tape recordings he made during this investigation do not constitute insubordination, they were careless and unreasonable, and resulted in these materials either
being lost or destroyed.
Based upon the foregoing, it is recommended that the Petitioner enter a Final Order affirming the disciplinary action
five day suspension without pay, and the assessment of 40 disciplinary points.
DONALD D. CONN
Deborah S. Crumbley, Esquire
P. O. Box 639 Tampa, FL 33601
P. O. Box 1669 Clearwater, FL 34617
M. A. Galbraith, Jr., Esquire City Attorney
P. O. Box 4748 Clearwater, FL 34618
