STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SAFETY HARBOR, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1732

)

MICHAEL GIESEKE, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on June 6, 1991, at Safety Harbor, Florida.

APPEARANCES

For Petitioner: Thomas M. Gonzales, Esquire

Post Office Box 639 Tampa, FL 33601

For Respondent: John K. Finch, Esquire

William Wiggins, Esquire

323 Main Street

Safety Harbor, FL 34695 STATEMENT OF THE ISSUES

Whether Respondent is guilty of conduct unbecoming an employee of the City, and if so, what punishment is appropriate.

PRELIMINARY STATEMENT

By letter dated February 4, 1991, the City of Safety Harbor, Florida, Petitioner, advised Michael Gieseke, Respondent, that his employment with the City of Safety Harbor was terminated effective February 4, 1991. As grounds therefor, it is alleged that on or about January 29, 1991, Respondent struck a coworker with a broom, and then proceeded to draw a razor-knife, which acts constitute a violation of Rule 24, Section C, Items 7 and 16, of the Civil Service Rules of the City of Safety Harbor. Respondent requested a formal hearing to contest these allegations, and these proceedings followed. At the hearing, Petitioner called five witnesses, Respondent called five witnesses, including himself, and five exhibits were admitted into evidence.

There is little dispute regarding the operative facts here in involved.

Accordingly, proposed findings submitted by the Parties are generally accepted. Those proposed findings not accepted are rejected for the reasons noted in the Appendix attached hereto and made a part hereof. Those proposed findings

neither included below nor rejected in the Appendix were deemed unnecessary to the conclusions reached.

Having considered all evidence presented, I submit the following:

FINDINGS OF FACT

1. At all times relevant hereto, Michael Gieseke was employed by the City of Safety Harbor as a Laborer 3 in the Sanitation Department. He had been so employed for approximately nine months on February 1, 1991.

   
   

2. On January 29, 1991, shortly before clocking out time, Gieseke was in the Sanitation Department breakroom with most of his coworkers. People were talking, laughing and, in general, relaxing following the day's work.

   
   

3. The breakroom had six picnic-type tables at which the various employees were sitting. Respondent was sitting at one of these tables facing away from the table. Behind Respondent at the same table, Eric Davis was straddling the bench, and was engaged in conversation with Grover Smith, his and Respondent's supervisor. This conversation was fairly loud and punctuated by loud laughter by Davis.

   
   

4. For several minutes this loud laughter had persisted very close to Respondent, and on one or more occasions Respondent had requested Davis stop shrieking in his ear. These protests were not honored by Davis. Several witnesses described Davis' laugh as often irritating.

   
   

5. Finally, Respondent got up and picked up a broom near the time clock and returned to his seat with the broom handle resting on his shoulder, held in his right hand with the bristle part between him and Davis. Respondent swung the handle of the broom back and forth likewise moving the bristle end. In so doing, the bristle end of the broom struck Davis on the side of the head. As described by Davis, the blow was sufficient to make one aware he had been hit but not hard enough to make one cry.

   
   

6. Davis jerked the broom aside and got up and put his hands around Respondent's neck. Realizing that participating in a fight could lead to dismissal, Davis refrained from tightening his grip on Respondent's neck and merely told Respondent not to do that again.

   
   

7. During his rounds that day, Respondent had picked up a discarded razor- knife with which he had been cleaning his fingernails since entering the breakroom. This knife consisted of razor-like blades joined lengthwise which are encased in the sheath of the knife and extend from the sheath in a cutting position by pushing a button on the outside of the sheath and pushing the blade outward. This knife was held in Respondent's left hand with the blade extended approximately 1/2 inch. When Davis was hit by the broom and grabbed Respondent around the neck, one supervisor reminded Respondent that [for drawing a knife] a person would be fired, and another supervisor told both parties to knock it off, which they did.

   
   

8. During this slight altercation, Respondent made no effort to use the knife or even threaten to use the knife.

   
   

9. The following day, one of the supervisors who was in the breakroom when the altercation occurred reported the incident to the Director, Public Works Department, who had the incident investigated by Kurt Peters, Assistant Public

   Works Director. Peters is not a Division Director, but was authorized to investigate the incident by Wayne Logan, Jr., the Interim City Manager, Safety Harbor, with the authority to take all disciplinary action taken in this case.

   
   

10. Following the investigation, Peters concluded that Respondent had been responsible for the incident and reported this to the City Manager who concurred.

    
    

11. On Friday, February 1, 1991, with authorization from Logan, Peters told Gieseke that effective immediately he was being placed on unpaid leave for five days.

    
    

12. On Monday, February 4, 1991, Gieseke was on unpaid leave, and the decision was made to terminate Gieseke's employment with the City. Accordingly, the letter to Gieseke dated February 4, 1991 (Exhibit 1) so advising him was sent to Gieseke's home address.

    
    

13. This registered letter was not received by Gieseke from the post office, and he learned of the letter when he returned to pick up a pay check.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Resolution No. 91-01, City of Safety Harbor, Rule 4.

    
    

15. Respondent is here charged with violating Rule 24, Section C, Items 7 and 16, which provide the following shall be just cause for Suspension, Demotion or Discharge.

    
    

    7. That the employee has been guilty of conduct unbecoming an employee of the city, whether on or off duty.

    
    

    16. That the employee is offensive in his conduct, antagonistic toward superiors, fellow employees, or the public, criticizes orders, rules, and policies, or whose conduct interferes with the proper cooperation of employees, or impairs the efficiency of the City Service.

    
    

16. The City of Safety Harbor has a long standing policy that an employee who instigates or engages in a fight will be terminated from employment. Here Respondent instigated the altercation with Davis by striking Davis with a broom. The evidence presented will not support any finding that Respondent used or threatened to use the razor-knife he held in his left hand when the broom handle was in his right hand.

    
    

17. Rule 24 provides in part that any Classified Service employee may be suspended without pay, demoted, or discharged by his Department Head with the approval of the City Manager, for any cause which will promote the efficiency of the Classified Service.

18. Petitioner here contends that placing Respondent on involuntary leave without pay is authorized by Rule 16, Section C, of the Civil Service Rules which provides:

    
    

    Other leave without pay may be authorized for any reason that is deemed to be in the best interests of the city and the employee.

    
    

19. It can hardly be said, nor was it intended, that placing Respondent on involuntary leave without pay was for the benefit of the employee. Giving the language in Rule 16, Section C, above quoted, its normal meaning, the conjunction "and" used therein connotes the leave without pay must also inure to the benefit of the employee.

    
    

20. What, in fact, Respondent received on Friday, February 1, 1991, was notice that he was being suspended without pay for five days. This is an authorized punishment. Rule 22A-7.10(6)(a), Florida Administrative Code, while not specifically applicable in these proceedings, defines "suspension" as the action taken by an agency against an employee to temporarily relieve the employee of duties and place the employee on leave without pay. This is the generally accepted definition of suspension, and that is what was verbally awarded to Respondent in this case on February 1, 1991.

    
    

21. Rule 24 requires that a written statement of the reasons for such action shall be submitted to any employee suspended, demoted, or discharged, and further provides that the written statement whenever it is practicable and possible to do so shall be given personally to the employee, or sent by registered mail, return receipt requested, to his last known address, and such action will not be effective until this notice has been given or sent to the home of the employee.

    
    

22. Here Respondent was given actual notice that he was suspended without pay for five days. In response to that edict, Respondent did not return to work during the week beginning February 4, 1991, and, in effect, completed the punishment awarded.

    
    

23. To say at this time that the five days suspension was not effective because it was not reduced to writing would allow the City to benefit from its disregard of its own rules. Had the City Manager not intended the suspension without pay to be the final determination of the penalty to be imposed and removal of Respondent from duty was desired, he should have authorized the suspension of Respondent with pay pending the final decision in this matter. Suspension with pay is not a punishment and does not bar further punishment. Once an employee is punished for a particular act, that same act cannot form the basis for additional punishment. State Dept. of Transportation v. State Career Service, 366 So.2d 473 (Fla. 1st DCA 1979).

    
    

24. From the foregoing, it is concluded that Michael Gieseke on January 29, 1991 in striking a fellow employee with a broom is guilty of unacceptable behavior and a violation of Rule 24, Section C, Items 7 and 16, which constituted just cause for suspension, demotion or discharge; and, that in the involuntary placement of Respondent on leave without pay for five days, the City Manager approved the suspension as a punishment and the subsequently awarded punishment of dismissal for the same offense constitutes an invalid double punishment.

RECOMMENDATION

It is recommended that Michael Gieseke be found guilty of violating Rule 24, Section C, Items 7 and 16, of the City of Safety Harbor Civil Service Rules, that the five day suspension be approved, that the subsequent dismissal for the same offense be disapproved and that Gieseke be restored to duty by the City of Safety Harbor with back pay for the period commencing at the conclusion of his period of suspension.

ENTERED this 20th day of June, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

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 20th day of June, 1991.

APPENDIX

Proposed findings submitted by Petitioner are accepted, except for:

Paragraph 5, second sentence that Respondent retracted the blade and lowered the knife. No evidence was presented that the blade was ever extended more than 1/2 inch or that Respondent raised the knife as if to use it against another.

Paragraph 6, penultimate sentence, insofar as it intimates the decision of the City Manager to terminate Respondent was made on February 1, 1991. On February 1, 1991, the City Manager authorized the suspension of Gieseke for five days.

COPIES FURNISHED TO:

THOMAS M. GONZALES, ESQUIRE POST OFFICE BOX 639

TAMPA, FL 33601

JOHN K. FINCH, ESQUIRE WILLIAM WIGGINS, ESQUIRE

323 MAIN STREET

SAFETY HARBOR, FL 34695

Docket for Case No: 91-001732

Orders for Case No: 91-001732