STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0315

)

MALCOLM MCCOY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on March 21, 1990, at Clearwater, Florida.

APPEARANCES

For Petitioner: Miles Lance, Esquire

Post Office Box 4748 Clearwater, FL 33418-4748

For Respondent: Malcolm McCoy, pro se

1323 Tioga Avenue

Clearwater, FL 34616 STATEMENT OF THE ISSUES

Whether Respondent was guilty of offenses justifying his dismissal from employment with the City of Clearwater.

PRELIMINARY STATEMENT

By Termination and Dismissal Notice dated December 14, 1989, Malcolm McCoy was terminated from his employment with the City of Clearwater. As grounds therefor, it is alleged he violated Rule 14, Section 1(c), of the Civil Service Rules and Regulations of the City of Clearwater, which proscribes being careless or negligent in the care of the property of the City or knowingly permitted, condoned, and/or participated in the unauthorized use thereof. Specifications under this charge involve leaving his assigned work area during normal working hours without permission, unauthorized use of City equipment, using other City personnel to assist in performing work at Respondent's residence, and the theft of City property. Points accumulated through these allegations, when added to points for another infraction occurring within the past two years, total some

140 disciplinary points.

At the hearing, Petitioner called five witnesses, McCoy testified in his own behalf and four exhibits were admitted into evidence. The parties waived the right to submit proposed recommended orders to the Hearing Officer.

FINDINGS OF FACT

1. Malcolm McCoy, for nearly 10 years prior to December 19, 1989, was employed by the City of Clearwater in the Gas Division. He was a permanent employee and covered by City of Clearwater's civil service rules and regulations. At the time of his dismissal on December 19, 1989, he served as a crew leader.

   
   

2. In June, 1989, McCoy was arrested for possession and sale of cocaine. He was subsequently suspended without pay for five days by the City and awarded

   60 disciplinary points (Exhibit 2), and on October 31, 1981, a court order was entered, which shows McCoy pleaded guilty in the Circuit Court in and for Pinellas County to sale or delivery of cocaine and possession of cocaine. Adjudication of guilt and imposition of sentence was withheld, and McCoy was placed on probation for two years (Exhibit 1).

   
   

3. On September 11, 1989, McCoy received a letter by certified mail from the City advising him that he had accumulated 60 disciplinary points as a result of the cocaine incident and that any further disciplinary action within a two- year time frame may be grounds for his dismissal (Exhibit 3).

   
   

4. On or about November 15, 1989, McCoy removed some City-owned dried out and dead sod from City property, loaded it onto a City vehicle, transported this sod to his address, and, with the help of his assistant, placed this sod in his yard. This occurred during regular working hours.

   
   

5. Enroute to McCoy's residence with the sod on the vehicle, McCoy's assistant suggested to McCoy that it was wrong to take this sod to McCoy's property. Nevertheless, at McCoy's direction, the assistant helped McCoy unload the sod from the City truck and place it on McCoy's property. McCoy's stated purpose for placing the sod in his yard was to help arrest erosion on his property.

   
   

6. An anonymous phone call reported this fact, the investigation confirmed, and McCoy admitted that he took the sod which was worthless as sod and placed it on his property. McCoy did not feel he had misappropriate City property; only that he had saved the City the expense of disposing of the dead sod.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Rule 14, Section 9, Civil Services Rules and Regulations, of the City of Clearwater.

   
   

8. Rule 14, Section 1, of these Civil Services Rules and Regulations, provides in part:

   
   

   Cause for Suspension, Demotion and Dismissal:

   The following, in addition to the offenses listed in the Guidelines for Disciplinary Action, Department Rules, General or

   Special Orders, and Rules for the Police and Fire Departments, are declared to be just causes for suspension, demotion, or dismissal of any employee in the Career

   Civil Service, though charges may be based upon any cause which will promote the effi- ciency of the City service other than those herein enumerated, namely that the employee:

   (c) Has been 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.

   
   

9. Under the Guidelines for Disciplinary Action (effective 05/23/86), offenses are divided into five levels in ascending order of seriousness, and these guidelines provide in pertinent part:

   
   

   Where combinations of offenses have occurred, whether at the same or different levels of offense, the City may combine the penalties in a cumulative manner as, in its judgment, is warranted. As a guide to insure a full understanding of the combination of unrelated

   offenses, the following point values have been assigned to Offense Levels and any employee who is assessed disciplinary action totaling the equivalent of 60 points within any 24 consecutive months is subject to dismissal.

   
   

10. Under these guidelines and for violation of Rule 14, Section 1(c), McCoy was charged with violating Level 3 offenses #5 and #26 and Level 5, offense #9. The Level 3 offenses allege leaving assigned work area or facility during working hours without permission and unauthorized use of City property. The Level 5 offense alleges theft of property while on duty. Violations of Level

    3 offenses carry an assessment of 20 disciplinary points, while violation of Level 5 offenses carry an assessment of 60 disciplinary points.

    
    

11. Here the evidence is unrebutted that McCoy transported the City-owned dead sod from City property in a City-owned vehicle to McCoy's residence during normal working hours and directed another City employee to assist him. These acts constitute a clear violation of the Level 3 offenses alleged, and the 20 disciplinary points for these violations were properly assessed.

    
    

12. At first blush, it would appear that the charge of theft of the dead sod was the least serious offense committed by McCoy in this transaction. All witnesses agreed that the sod had no further use as sod and that the City would have placed the sod in a dumpster in due course. Once the sod had been so "discarded", it would have been abandoned by the City and could be taken by McCoy or any other person without being charged with theft. However, before abandonment by the City, it remained the property of the City. Larceny, at common law, is defined as the unlawful taking and carrying away of the property of another with the intent to deprive the owner thereof. By taking and carrying away this sod from City property, Respondent intended to deprive the City of further use of this property. Accordingly, the allegation of theft was proven by uncontradicted evidence.

    
    

13. Although the guidelines indicate that the commission of a Level 5 offense carries a penalty of 60 disciplinary points, under the circumstances here existing, that appears excessive for taking property of no value to the owner.

14. In view of the prior offense for which Respondent was awarded 60 disciplinary points and the two Level 3 offenses for which Respondent could be awarded an additional 40 disciplinary points, it appears that he was assessed 40 points for the Level 5 offense. Since 60 disciplinary points constitute grounds for dismissal and McCoy acquired 140 points within a 24-month period, the punishment of dismissal is in accordance with the Civil Services Rules and Regulations, and all required procedural steps were followed by Petitioner.

    
    

15. From the foregoing, it is concluded that Malcolm McCoy was properly assessed 140 accumulated disciplinary points within a 24-month period and, pursuant to the Clearwater Civil Service Rules and Regulations, his dismissal was appropriate.

RECOMMENDATION

It is recommended that the dismissal of Malcolm McCoy as a civil service employee of the City of Clearwater be affirmed and McCoy's appeal be dismissed.

ENTERED this 4th day of April, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Office

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1990.

COPIES FURNISHED:

Miles Lance, Esquire Post Office Box 4748

Clearwater, FL 33418-4748

Malcolm McCoy 1323 Tioga Avenue

Clearwater, FL 34616

Docket for Case No: 90-000315

Orders for Case No: 90-000315