STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUNE BHEBE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3101

)

SOUTH FLORIDA WATER, )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 6, 1992, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William M. Holland, Esquire

131 U.S. Highway One Post Office Box 12365 Lake Park, Florida 33403

For Respondent: Michael Mattimore, Esquire

150 South Monroe Street Suite 301

Tallahassee, Florida 32301

Frances M. Jauquet, Esquire Post Office Box 24680

West Palm Beach Florida 33416-4680 STATEMENT OF THE ISSUES

1. Whether Petitioner committed the offenses that are enumerated in the January 9, 1992, notice of termination he received and more particularly described in the accompanying Corrective Action Notices?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

Following a thorough internal investigation conducted in accordance with agency policy, which included interviews with Petitioner and others, the South Florida Water Management District (District), by memorandum dated January 9, 1992, notified Petitioner that, effective immediately, it was placing him on leave without pay and, effective January 14, 1992, it was terminating his employment with the District, on the grounds that he had engaged in various acts of misconduct that were described in the memorandum and further detailed in

Corrective Action Notices that were given to Petitioner together with the memorandum. According to the memorandum, the alleged acts of misconduct upon which Petitioner's termination was based were: six occurrences of "lying or failing to give truthful or requested information;" four occurrences of "unauthorized use of District property and/or personnel;" two occurrences of "absence without authorized leave;" one occurrence of "falsification of a District record;" one occurrence of "improper or careless use of District property;" one occurrence of "violation or disregard of safety practices;" one occurrence of "negligence;" and one occurrence of "unbecoming conduct." 1/

The memorandum advised Petitioner of his right to respond to these charges.

Petitioner appealed his termination through the District's employee grievance procedure, which included a hearing before a grievance review board composed of members randomly selected by Petitioner. His appeal was unsuccessful. Thereafter, he requested a formal administrative hearing on the matter. On May 20, 1992, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal administrative hearing Petitioner had requested

A total of nine witnesses testified at the hearing: Arlan Pankow, the Director of the District's Field Engineering Division; Freddy Lee Mack, Jr., a District Construction Representative; Donald Hagan, a Regulatory Professional I with the District; Edward Maciejko, a Supervising Professional with the District; J. Boyd Rucks, the President of Dry Lake Dairy, Inc.; Alan Goldstein, the Assistant Director of the District's Field Engineering Division; Edward Muldowney, the District's Security Coordinator; Rosanne Smith, the District's Employee Relations Administrator; and Petitioner. In addition to the testimony of these witnesses, a total of 20 exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on August 6, 1992, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received the hearing transcript on September 10, 1992. Petitioner and Respondent timely filed proposed recommended orders on October 1, 1992, and October 12, 1992, respectively. Each of these proposed recommended orders contain, what are labelled as, "findings of fact." These "findings of fact" proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made: An Overview of Petitioner's Employment with the District

1. Petitioner was employed by the District from June of 1988, until his termination, which was effective January 14, 1992.

   
   

2. Prior to his termination he had an unblemished disciplinary record.

   
   

3. Petitioner was initially hired by the District as a Construction Representative.

   
   

4. In January of 1989, he assumed the duties of a Regulatory Professional

   I.

5. He was promoted in 1990 to a Regulatory Professional II, a position he held until he was terminated.

   
   

6. At the time of his termination, Petitioner had attained regular employee status inasmuch as he had successfully completed his probationary period.

   
   

7. As a Regulatory Professional II, Petitioner was responsible for monitoring the public's compliance with the District's regulatory programs, a task that involved the exercise of considerable discretion with minimal supervision as well as frequent and substantial contact with citizens in his assigned territory, which covered all of Okeechobee and St. Lucie Counties and parts of Glades and Highlands Counties. Petitioner also supervised one subordinate employee, Donald Hagan, a Regulatory Professional I, who assisted Petitioner in his monitoring activities.

   
   

8. Petitioner was assigned a District vehicle for official use during the workday.

   
   

9. After hours, the vehicle was secured in the parking lot outside the District field station in Okeechobee where Petitioner was headquartered.

   
   

10. Petitioner worked an eight-hour day. His normal work hours were 7:30

    a.m. to 4:00 p.m., however, he occasionally deviated from this schedule when necessary to accommodate his workload.

    
    

11. In addition to a lunch break, Petitioner was allowed to take two 15 minute work breaks during his eight-hour workday, one in the morning and one in the afternoon. He was permitted to take these breaks whether he was in the field station or out in the field.

    
    

12. In September and most of October of 1991, Petitioner's immediate supervisor was Edward Maciejko. Maciejko was headquartered in West Palm Beach, approximately 60 to 65 miles from the Okeechobee field station out of which Petitioner worked.

    
    

13. On October 23, 1991, Alan Goldstein became Petitioner's immediate supervisor. Goldstein's work station was located in Okeechobee approximately three miles from Petitioner's work station. Goldstein remained Petitioner's immediate supervisor until Petitioner's termination.

    
    

    The Employee Handbook

    
    

14. The District has an Employee Handbook that is designed to provide information and guidance to District employees regarding employment-related matters.

    
    

15. As do all new District employees, Petitioner received a copy of the Employee Handbook upon being hired and its contents were reviewed with him during his orientation.

    
    

16. The Employee Handbook contains the District's Attendance and Leave Policy (Policy No. 300), which addresses the subjects of "normal work hours" and "work breaks" as follows:

    1. NORMAL WORK HOURS

       
       

       1. All full-time regular and initial probationary employees shall perform their assigned duties for 40 hours each work week unless otherwise authorized.

       2. All part-time regular and temporary employees shall perform their assigned duties for the total number of hours for which compensation is received.

       3. The normal workday shall be 8 hours unless otherwise authorized by the employee's Division Director.

       
       

    2. WORK BREAKS

       
       

       1. All District employees are provided one work break during the first half of their workday and one work break during the second half of their workday, except in extreme emergency. No single work break shall exceed

          15 minutes.

       2. An employee is not permitted to accumulate unused work breaks nor may the work break be used to cover an employee's late arrival or early departure from duty.

       3. All employees shall take a minimum of one half hour lunch break each workday.

       
       

17. The following discussion is found in the Employee Handbook concerning the "Code of Ethics:"

    
    

    Florida has been a leader among the states in establishing ethical standards for public officials and employees and recognizing the right of her people to protect the public trust against abuse. Our state constitution was revised in 1968 to require that

    (a)a code of ethics for all state employees and non-judicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. Art III, Sec. 18, Fla. Constitution.

    
    

    The "Code of Ethics for Public Officers and Employees" by which the Legislature carried out this constitutional mandate is found in Chapter 112 (Part III) of the Florida Statutes. The purpose of the Code is to ensure that public officials and employees conduct themselves independently and impartially, not using their offices or positions for private gains other than remuneration provided by law and to avoid conflicts between public duties and private interest. . . .

    The standards of conduct summarized below generally apply to all District employees. The types of conduct prohibited are:

    
    

    Gifts- No public employee shall solicit

    or accept anything of value- including a gift, loan, reward, promise of future employment, favor, or service- that is based on any understanding that the vote, official action, or judgment of the employee would be influenced by such gift. Sec. 112.313(2), Fla. Stat. (1991).

    
    

    Unauthorized Compensation- No public employee or his/her spouse or minor child shall accept any compensation, payment or thing of value which, with the exercise of reasonable care, is known or should be known to influence the official action of such employee. Sec.

    112.313(4), Fla. Stat. (1991).

    
    

    Doing Business with One's Agency- No public employee acting as a purchasing agent or acting in his/her official capacity shall, directly or indirectly, purchase, rent, or lease any realty, goods, or services from a business entity in which his/her spouse, or child is an officer, partner, director, or proprietor, or in which his/her spouse, or child (or any combination of them) has a material interest. Nor shall a public employee, acting in a private capacity, rent, lease, or sell any realty, goods or services to his/her own agency. Sec. 112.313(3), Fla. Stat. (1991).

    
    

    Conflicting Employment or Contractual Relationship- No public employee shall hold any employment or contractual relationship with any business entity or agency which is subject to the regulation of, or doing business with, the employee's agency. Nor shall an employee hold any employment or contractual relationship which will pose a recurring conflict between his/her private interests and his/her public duties or which would impede the full and faithful discharge of his/her duties. Sec. 112.313(7), Fla.

    Stat. (1991).

    
    

    Exemptions- Under certain circumstances the prohibitions of subsections (3) and (7) of Section 112.313, Florida Statutes, may not apply.

    Misuse of Public Position- No public employee shall corruptly use or attempt to use his/her official position or any property or resource within his/her trust, or perform his/her official duties, to obtain a special privilege, benefit or exemption for himself/ herself or others. Sec. 112.313(6), Fla.

    Stat. (1991).

    
    

    Disclosure or Use Of Certain Information- No public employee shall disclose or use information not available to the general public and gained by reason of his/her public position for his/her personal gain or benefit or the gain or benefit of others.

    Sec. 112.313(8), Fla. Stat.(1991).

    
    

    More specific ethics laws address financial disclosure and the reporting requirements which apply to Governing Board members, senior management, and employees with contracting authority.

    
    

    The above information has been provided to help you understand State Ethics Laws. The District supports and enforces these laws to the best of its ability and expects each employee to conduct their activities in a lawful manner. Conflicts of interest may be avoided by greater awareness of these Ethics Laws. If you are in doubt about the applicability of the ethics laws to your own circumstances or the circumstances of a subordinate or co-worker, contact the District's Office of Counsel. They will answer your questions or assist you in obtaining an opinion from the Commission on Ethics.

    
    

18. Also included in the Employee Handbook is the District's Corrective Action Policy (Policy No. 803), which establishes standards governing non- executive employee conduct and discipline.

    
    

19. Section F. of Policy No. 803 lists those acts of misconduct for which a non-executive District employee who has attained regular status may be disciplined. It provides in pertinent part as follows:

    
    

    The following forms of misconduct are unacceptable and subject an employee to corrective action based on the particular circumstances surrounding the incident. The list is provided merely as examples and is not intended to be all inclusive. The identification of these examples does not preclude the District's right to discipline or dismiss employees for other causes, including acts of misconduct which breach the

    requirements inherent in the employment relationship.

    1. Unbecoming conduct: Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, or impairs the employee's ability to perform his or her

    job. . . .

    5. Absence Without Authorized Leave:

    1. Failure to obtain approval from the proper authority prior to any absence from work, except in the case of an emergency, illness or accident which requires the employee to be absent prior to receiving approval;

    2. Inexcusable or repeated failure to notify the appropriate Supervisor or division office of absence, due to sickness, within ten (10) minutes from the start of the normal work day;

    3. Being more than ten (10) minutes late to work for an inexcusable reason or on a repeated basis without notifying the appropriate Supervisor, or division

    office. . . .

    1. Unauthorized Use of District Property, Services, Equipment or Personnel: The use of any District property, services, equipment or personnel for any purpose other than District business. Employees shall be required to reimburse the District for the cost incurred by the District as a result of the unauthorized use of equipment or property.

    2. Improper or Careless Use of District Property, Including Vehicles: Failure to care for or properly use District property or equipment such as the failure to observe the proper speed limit while driving a District vehicle. . . .

    11. Lying or Failure to Give Truthful or Requested Information: Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to provide information during an internal investigation. . . .

    24. Violation or Disregard of Safety Practices: The failure to follow established safety practices as outlined in the District's Accident Prevention Manual. This includes failure to report any injury or accident; the performance of unsafe acts; or the failure to wear or use appropriate safety

    equipment. . . .

    1. Negligence: The failure to use ordinary or reasonable care, caution, attention, diligence or discretion in the performance of

       assigned duties and responsibilities.

    2. Falsification of a District Record: The intentional issuance of a false or incomplete report or record, either oral or written, or the intentional failure to issue a record regarding the performance of work duties, attendance, injury, illness, job qualifications or other work related matters.

    
    

20. Policy No. 803 specifically provides for four basic types of "corrective action" to deal with acts of misconduct. They are, in order of severity: oral reprimand (OR); written reprimand (WR); suspension (S); and dismissal (D).

    
    

21. In determining the appropriate "corrective action" to be taken in a particular situation, supervisory personnel must follow the "standards" set forth in Section G. of Policy No. 803, which provides as follows:

    
    

    1. This section has been established as a guide for use by Supervisors to help ensure that all employees receive similar treatment in like circumstances. The guidelines on severity of corrective action outlined in Section H. is not meant to be an exhaustive listing of all possible acts of misconduct or forms of corrective action. Appropriate corrective action of unlisted acts of misconduct may be derived by comparing the nature and seriousness of the offense to those listed in Section H.

    2. In many cases, the guidelines on severity of corrective action are based on the number of occurrences and the seriousness of the offense and are presented as a range of action which covers more than one form of corrective action.

    3. The use of a particular form of corrective action is not mandatory simply because it is listed in Section H. Realizing that some of the offenses listed will be more or less serious in certain cases, the supervisor taking the corrective action shall utilize good judgment in light of all available facts. The corrective action selected must ultimately be appropriate in light of the particular circumstances surrounding the incident and the employee's past performance and conduct record. For example, even for offenses where

       dismissal is not indicated for a first offense, dismissal on a first occurrence may be

       assessed for an aggravated offense or a continuous pattern of misconduct. Similarly, where dismissal is indicated, a less severe form of corrective action may be taken. This action may be taken so long as it is more severe than that given in the most recent prior occurrence that is still active, and is

       reasonably consistent with other cases of misconduct for other employees.

    4. Temporary and initial probationary employees may be suspended or dismissed without regard to the standards of corrective action.

    5. In determining the severity of corrective action to be applied, the authorized Supervisor should take into account the following variables:

       1. The severity of the specific act of misconduct.

       2. The circumstances under which the violation occurred.

       3. The consequences of the employee's actions in regard to its affect on the District operation and on other employees.

       4. The guidelines on severity of corrective action outlined in Section H. of this policy.

       5. The overall work record of the employee; length of employment; and the employee's prior history of other similar or unrelated corrective actions, including active and inactive offenses.

       6. The length of time since earlier corrective action, the similarity or dissimilarity of the offense, and the severity of earlier offenses.

    
    

22. The following are among "the guidelines on severity of corrective action outlined in Section H." of Policy No. 803:

    
    

    1. Unbecoming conduct: 1st occurrence- WR, S or D . .

    5. Absence Without Authorized Leave (Does not affect scheduling or work of others): 1st occurrence- OR; 2nd occurrence- WR . .

    1. Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 1) Cost to District of less than $50.00): 1st occurrence- S; 2nd occurrence- S or D; 3rd occurrence: D Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 2) Cost to District of more than $50.00): 1st occurrence- S or D; 2nd occurrence- D

    2. Improper or Careless Use of District Property (Not involving personal injury or property damage): 1st occurrence: OR . . .

    11. Lying or Failure to Give Truthful or Requested Information: 1st occurrence- WR or S; 2nd occurrence- S or D; 3rd occurrence- D . . .

    24. Violation or Disregard of Safety Practices (Not involving personal injury or property damage): 1st occurrence- OR . . .

    1. Negligence (Not involving personal injury or property damage): 1st occurrence- OR . . .

    2. Falsification of District Record: 1st occurrence- S or D; 2nd occurrence- D

    
    

    The Accident and Related Events

    
    

23. In the latter part of September of 1991, Petitioner's personal vehicle was in an automotive repair shop in Stuart.

    
    

24. On September 17, 1991, at Petitioner's request, Donald Hagan, Petitioner's subordinate, drove Petitioner to the repair shop in Stuart, which was outside of their assigned territory, in a District vehicle. The purpose of the trip was to ascertain whether the repairs on Petitioner's personal vehicle had been completed. Upon his arrival at the repair shop, Petitioner was advised that the necessary parts had not come in and that therefore it would be another week until he would be able to pick up his vehicle.

    
    

25. A week later, on September 24, 1991, at approximately 1:00 p.m., Hagan was in his District vehicle in the parking lot outside the Okeechobee field station when Petitioner walked up to him. Petitioner told Hagan that the repairs on Petitioner's personal vehicle had been completed. He then asked if Hagan would give him a ride to the repair shop in Stuart so that he could pick up the vehicle. Hagan responded in the affirmative. Petitioner thereupon entered Hagan's District vehicle and sat down in the front passenger seat.

    After Petitioner was situated, Hagan drove off, headed in the direction of the repair shop.

    
    

26. Before reaching their destination, Hagan and Petitioner were involved in an automobile accident when Hagan lost control of the vehicle and it ended up in a ditch.

    
    

27. The vehicle was damaged and it was towed to West Palm Beach for repairs.

    
    

28. Hagan sustained two fractured ribs as a result of the accident. Petitioner was also injured, but not as seriously as Hagan. Both received medical treatment for their injuries.

    
    

29. Hagan's and Petitioner's ill-fated trip did not have any District- related purpose. Nonetheless, following the accident, Petitioner reported otherwise, notwithstanding that he knew that he was providing false information to the District.

    
    

30. On the night of the accident, he told his then immediate supervisor, Edward Maciejko, over the telephone that he and Hagan were on their way to conduct an inspection of distressed cypress trees in St. Lucie County when the accident occurred.

    
    

31. Petitioner also prepared an accident report in which he made the same misrepresentation.

    
    

32. A workers' compensation claim was filed on behalf of Petitioner in reliance upon this misrepresentation.

    
    

33. Initially, Hagan corroborated Petitioner's story about the purpose of their September 24, 1991, trip. Later, however, he told supervisory personnel

    the truth about the matter. For his part in the incident and the subsequent cover-up, he was reprimanded and received a two-day suspension.

    
    

34. On two occasions following Hagan's revelation regarding the true purpose of the trip, Petitioner was provided an opportunity by Alan Goldstein, who had recently become Petitioner's immediate supervisor and was looking into allegations of misconduct against Petitioner, to recant the statements he had previously made regarding the matter. Petitioner, however, declined to do so and instead repeated what he had said earlier on the subject. 2/

    
    

    The Speeding Ticket and Related Events

    
    

35. On October 3, 1991, while driving his District vehicle to a work- related meeting in Lake Placid, Florida, to which he did not want to be late, Petitioner was stopped by a Florida Highway Patrol trooper and given a traffic citation for travelling 84 miles per hour in a 55-mile per hour zone.

    
    

36. Petitioner had exceeded the posted 55-mile per hour speed limit, but by less than the trooper indicated on the citation. Nonetheless, for convenience sake, Petitioner did not contest the citation.

    
    

37. On the day he received the citation, Petitioner telephoned Edward Maciejko, who was still his immediate supervisor at the time, and told Maciejko that he had been "flagged down" by a trooper earlier that day while on his way to Lake Placid in his District vehicle.

    
    

38. Subsequently, during an investigation of alleged wrongdoing on Petitioner's part conducted after Alan Goldstein, had become Petitioner's immediate supervisor, Goldstein asked Petitioner if he had informed Maciejko about the traffic citation he had received on October 3, 1991. Petitioner responded in the affirmative to this inquiry. To the best of his recollection, he had so informed Maciejko and therefore believed that he was being truthful in his response to Goldstein's inquiry.

    
    

    The Loan and Related Events

    
    

39. Dry Lake Dairy (Dairy) is an Okeechobee dairy farm that has been owned and operated by the Rucks family since 1958.

    
    

40. J. Boyd Rucks is President of the Dairy. As President, it is his responsibility to deal with governmental agencies that exercise regulatory authority over the Dairy and its operations. The District is one of these governmental agencies.

    
    

41. In or sometime prior to 1990, the Dairy received a surface water management permit from the District. It subsequently obtained a modification to the permit to engage in a ditch clearing operation.

    
    

42. In November of 1990, the District issued a Notice of Violation (NOV) alleging that the Dairy had violated the terms of its permit.

    
    

43. Petitioner was actively involved in the investigation that led to the issuance of the NOV.

    
    

44. Following the issuance of the NOV, it was his responsibility to make sure that the necessary steps were being taken by the Dairy to correct the problems identified in the NOV.

45. At first, he visited the Dairy on a regular basis to monitor its compliance efforts. Thereafter, these regular visits ceased and his monitoring activities were confined to flying over the Dairy during his monthly aerial inspection of his territory.

    
    

46. By the middle of October of 1991, the Dairy had made substantial progress toward correcting the violation with which it had been charged by the District, but the matter had not been finally resolved. 3/

    
    

47. At the time, Petitioner needed to borrow $500.00. Notwithstanding that the enforcement action against the Dairy, in which he played an integral role, was still ongoing, Petitioner ill-advisedly decided to approach the Dairy's President and its representative in its dealings with the District, J. Boyd Rucks, about loaning him the money.

    
    

48. Petitioner knew Rucks through Petitioner's work with the District. Their relationship was purely a professional one. They did not socialize.

    
    

49. While Rucks, on behalf of the Dairy, often made cash advances to its employees, neither he nor the Dairy was in the business of making loans to members of the general public. Never before had either of them made a loan to a District employee.

    
    

50. At around noon on October 14, 1991, Petitioner was in his District vehicle on his way back from a field inspection when he stopped by Rucks' home and asked Rucks if he would lend Petitioner $500.00. Rucks told Petitioner that he would have to discuss the matter with other members of his family and that Petitioner should return later in the day for an answer.

    
    

51. At around 3:30 or 4:00 p.m. that afternoon, Petitioner returned to Rucks' home in his District vehicle. 4/

    
    

52. Having obtained the approval of the family members to whom he had spoken, Rucks gave Petitioner $500.00 from the Dairy's petty cash fund. Petitioner was to repay the money within ten days. There was no interest charged.

    
    

53. Petitioner did not believe that he was doing anything wrong in soliciting and accepting this loan from Rucks.

    
    

54. There was no understanding on the part of either Petitioner or Rucks that the making of this loan to Petitioner would in any way influence Petitioner in the discharge of his duties as an employee of the District.

    
    

55. Petitioner never suggested, nor did Rucks expect, that the Dairy would receive favorable treatment in its dealings with the District as a result of the loan. The two viewed the transaction as a personal matter unrelated to District business.

    
    

56. Because of illness that required hospitalization, Petitioner was unable to repay the loan within ten days.

    
    

57. The loan was repaid in full within three weeks.

    
    

    Petitioner's Personal Circumstances

58. During the period of time in which the alleged acts of misconduct in the instant case were committed, Petitioner was experiencing a significant amount of stress in his personal life. He was having money problems. In addition, his relationship with his wife was deteriorating. The day after he received the loan from Rucks, Petitioner was admitted to a psychiatric hospital for treatment. He remained hospitalized for two weeks.

    
    

    CONCLUSIONS OF LAW

    
    

    General Legal Principles

    
    

59. The District is an agency within the meaning of Section 120.52(1), Florida Statutes.

    
    

60. It is empowered, among other things, to employ personnel "under such terms and conditions as it may determine and to terminate such employment." Section 373.079(4)(a), Fla. Stat.

    
    

61. It is also authorized to adopt rules governing these personnel matters. Such rules must "be made available to the public and affected persons at no more than cost but need not be published in the Florida Administrative Code or the Florida Administrative Weekly." Section 373.044, Fla. Stat.

    
    

62. The District has adopted its Corrective Action Policy, Policy No. 803, as a rule and published it in its Employee Handbook.

    
    

63. Disciplinary action against a non-executive, regular status District employee, as was Petitioner at the time of his termination, must be taken in accordance with the provisions of this rule. See Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988).

    
    

64. The decision to take such disciplinary action affects the "substantial interests" of the employee in question and therefore such decision is also subject to the provisions of Section 120.57, Florida Statutes. See Webster v. South Florida Water Management District, 367 So.2d 734 (Fla. 4th DCA 1979).

    
    

65. Where there is a disputed issue of material fact, the employee is entitled to a formal hearing on the matter. See Zarifian v. Department of State, Division of Licensing, 552 So.2d 267 (Fla. 2d DCA 1989).

    
    

66. At such hearing, the burden is on the District to establish by a preponderance of the evidence that the disciplinary action is justified. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414-15 (Fla. 4th DCA 1974).

    
    

67. In attempting to meet its burden, the District may rely only upon those alleged acts of misconduct that the employee had been put on notice would be the subject of the hearing. See Kinney v. Department of State, Division of Licensing, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984); Linkous v. Department of Professional Regulation, 417 So.2d 802, 803 (Fla. 5th DCA 1982).

    
    

    Allegations Proven

    
    

68. In the instant case, prior to the effective date of his termination, the District provided Petitioner with written notice of the "specific charges or

    reasons for the action," (notice of termination) as required by Policy No. 803. Pursuant to Petitioner's request, a formal hearing on these allegations was held.

    
    

69. At the hearing, the District proved by a preponderance of evidence some, but not all, of the allegations of wrongdoing specified in the notice of termination. 5/

    
    

70. It established that, as charged, Petitioner engaged in the following conduct that he knew or should have known would subject him to disciplinary action pursuant to Policy No. 803: 6/

    
    

    1. lying or failing to give truthful or requested information, in violation of Section F.11 of Policy No. 803, on three occasions when he told supervisory personnel that at the time of the automobile accident in which he and Hagan were involved they were on their way to inspect distressed cypress trees in St. Lucie County;

       
       

    2. falsification of a District record, in violation of Section F.27 of Policy No. 803, by preparing an accident report in which he made the same misrepresentation regarding the purpose of the trip;

       
       

    3. unauthorized use of District property and/or personnel with intent to obtain personal gain, in violation of Section F.7 of Policy No. 803, on four occasions- on September 17, 1991, when, pursuant to Petitioner's request, his subordinate, Donald Hagan, drove Petitioner in a District vehicle to an automotive repair shop in Stuart, which was outside their assigned territory, so that Petitioner could check on the status of repairs being made to his personal vehicle; on September 24, 1991, when Petitioner and Hagan made their aborted return trip in Hagan's District vehicle, with Hagan at the wheel; at around noon on October 14, 1991, when Petitioner drove his District vehicle to J. Boyd Rucks' home to ask for a personal loan; and later that same afternoon when he returned to Rucks' residence in his District vehicle to find out if the loan had been approved; 7/

       
       

    4. improper or careless use of District property, violation or disregard of safety practices, and negligence, in violation of Sections F.8, F.24 and F.28, respectively, of Policy No. 803, by exceeding the speed limit while driving his District vehicle on October 3, 1991; and

       
       

    5. unbecoming conduct, in violation of Section F.1 of Policy No. 803, by borrowing money from a entity that was the subject of a District enforcement action in which he was involved, inasmuch as such conduct was contrary to the prohibition imposed by Section 112.313(7), Florida Statutes, and recited in the Employee Handbook that "[n]o . . . employee of an agency shall have or hold any

    . . . contractual relationship with any business entity . . . which is subject to the regulation of . . . an agency of which he is an . . . employee." 8/

    
    

    Allegations Not Proven

    
    

71. The remaining charges against Petitioner specified in the notice of termination were not proven by a preponderance of the evidence.

    
    

72. With respect to the allegation that Petitioner was absent without authorized leave, in violation of Section F.5 of Policy No. 803, on September 24, 1991, the day he was involved in the automobile accident, and again on October 14, 1991, the day he solicited and obtained the loan from Rucks, while

    the evidence establishes that Petitioner was away from work tending to personal business on these days at times that were within his normal workday (7:30 a.m. to 4:00 p.m.), it is insufficient to demonstrate that these absences occurred during non-break periods of the workday without the authorization and approval of the appropriate authority.

    
    

73. The evidence is also insufficient to support the allegation that Petitioner was guilty of lying or failure to give truthful or requested information, in violation of Section F.11 of Policy No. 803, when he told Alan Goldstein, who was his supervisor at the time, that he had previously advised his former supervisor, Edward Maciejko, about the October 3, 1991, traffic citation, inasmuch as the record does not demonstrate that Petitioner intended in any way to mislead or deceive Goldstein about the matter.

    
    

74. The notice of termination charges Petitioner with having engaged in lying or failure to give truthful or requested information, in violation of Section F.11 of Policy No. 803, on two additional occasions, both in connection with the District's investigation of the loan Petitioner obtained from Rucks. The record, however, is devoid of competent substantial evidence upon which a finding that Petitioner engaged in such conduct may be based.

    
    

    Appropriate Disciplinary Action

    
    

75. In deciding what is the appropriate disciplinary action for the acts of misconduct committed by Petitioner that are described in Conclusion of Law 70 of this Recommended Order, it is necessary to consider the facts of the instant case in light of the provisions of Section G. of Policy No. 803.

    
    

76. Having done so, the Hearing Officer finds that termination is too severe a sanction and that instead he should receive a suspension covering the period from January 9, 1992, the date of the issuance of the notice of termination, to the date of the issuance of the final order in this case. 9/ The Hearing Officer does not share the view expressed in the District's proposed recommended order that Petitioner's misdeeds have resulted in the permanent impairment of his effectiveness as a District employee. There is no reason to believe that, if given another opportunity, Petitioner will not learn from his past mistakes, modify his conduct accordingly and become the effective and valued District employee he once was.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the District enter a final order (1) finding that disciplinary action, in the form of a suspension covering the period from January 9, 1992, to the date of the issuance of said final order, should be taken against Petitioner, but based only upon those acts of misconduct described in Conclusion of Law 70 of this Recommended Order, (2) reducing Petitioner's dismissal to such a suspension, and (3) reinstating Petitioner to the position he previously held or a comparable position.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1992.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3101

The following are the Hearing Officer's specific rulings on what the parties have labelled as "findings of facts" in their proposed recommended orders:

Petitioner's Proposed Findings of Fact

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. To the extent that this proposed finding states that "[e]mployees receive the Handbook at new employee orientation," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4-7. Accepted and incorporated in substance.

8. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

9-11. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. To the extent that this proposed finding references Edward Muldowney's participation in the internal investigation and Muldowney's "extensive investigative experience," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been

   accepted and incorporated in substance.

3. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

15-16. Accepted and incorporated in substance.

1. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

20-22. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of legal argument.

2. Accepted and incorporated in substance.

3. Rejected because it is not supported by persuasive competent substantial evidence.

25a.-25b. To the extent that these proposed findings state that Petitioner was absent during non-break periods of the workday on September 24, 1991, and on October 14, 1991, without the authorization and approval of the appropriate authority, they have been rejected because they are not supported by persuasive competent substantial evidence. Otherwise, they have been adopted and incorporated in substance.

25c.-26a. Accepted and incorporated in substance.

26b. Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance.

26c. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony.

26d. Accepted and incorporated in substance.

26e. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence.

26f. Accepted and incorporated in substance.

1. This proposed finding, which states that Petitioner lied or failed to give truthful or requested information on six, rather than three, occasions, has been rejected because it is not supported by persuasive competent substantial evidence.

   27a. Accepted and incorporated in substance.

   27b. First, second and sixth sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings state that Goldstein "specifically asked [Petitioner] if any part of the trip on the day of the accident was for personal reasons" and Petitioner "lied when he responded 'no'" to this question, they have been accepted and incorporated in substance. Otherwise, they have been rejected because they are not supported by persuasive competent substantial evidence.

   27c. To the extent that this proposed finding states that Goldstein talked to Petitioner about the September 17,

   1991, trip to Stuart during the discussion referenced therein, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   27e. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by persuasive competent substantial evidence.

2. Accepted and incorporated in substance.

3. First, second, third and sixth sentences: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding states that Hagan "was a passenger in the vehicle at the time," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony; Fifth sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony.

30-32d. Accepted and incorporated in substance.

32e. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed suggests that Petitioner did not perform "his regulatory functions, including those at the Dry Lake Dairy, in an unbiased manner" as a result of the loan, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in

substance. 10/

Third and fourth sentences: Rejected because they are not supported by persuasive competent substantial evidence. 11/

33-33b. Rejected because they concern alleged misconduct outside the scope of the charges specified in the notice of termination.

33c. Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.

Petitioner's Proposed Findings of Fact

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding states that Petitioner's assigned territory included Martin County, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

3. To the extent that this proposed finding recites verbatim the "Grievance Resolution," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding states that

Respondent was "summarily" dismissed upon given his notice of termination without the opportunity to respond and that he never before "had an evaluation which was less than satisfactory," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that Petitioner was deprived of "due process," that he was terminated "arbitrarily" and that the charges against him "are so vague as to make them void," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.

ENDNOTES

1/ The Notices of Corrective Action assessed a penalty for each individual act of misconduct. The penalties so assessed were as follows: "lying or failing to give truthful or requested information"- first occurrence: written reprimand, second occurrence: one-day suspension, third occurrence: dismissal, fourth occurrence: dismissal, fifth occurrence: dismissal, and sixth occurrence: dismissal; "unauthorized use of District property and/or personnel"- first occurrence: one-day suspension, second occurrence: dismissal, third occurrence: dismissal, and fourth occurrence: dismissal; "absence without authorized

leave"- first occurrence: oral reprimand, and second occurrence: written reprimand; "falsification of a District record"- dismissal; "improper or careless use of District property"- oral reprimand; "violation or disregard of safety practices"- oral reprimand; "negligence"- oral reprimand; and "unbecoming conduct"- dismissal.

2/ At hearing, Petitioner continued to maintain that the purpose of the trip was, not to pick up his personal vehicle at the repair shop in Stuart, but to conduct a work-related inspection in St. Lucie County. The Hearing Officer has rejected Petitioner's self-serving testimony on this matter and credited Hagan's testimony to the contrary because Hagan's testimony is far more plausible, particularly given the unrebutted evidence that Petitioner had asked another coworker for a ride to the repair shop moments before driving off with Hagan and that when the accident occurred Hagan and Petitioner were travelling in the direction of the repair shop on a roadway that, under ordinary circumstances, would not be used to go from the field station to the purported inspection site in St. Lucie County.

3/ It remains unresolved to this date.

4/ There is a conflict in the testimony on the question of whether Petitioner used his District vehicle to make this return trip. Rucks testified that Petitioner did. Petitioner, on the other hand, testified that he returned in his personal vehicle after work. The Hearing Officer finds Rucks' testimony on this point more credible and therefore has relied upon it in making this finding of fact.

5/ In its proposed recommended order, the District contends that on several occasions, in violation of the requirements set forth in Section C. of Policy No. 803, Petitioner "failed to immediately report the suspension" of his driver's license to supervisory personnel. Even if the District is correct, it may not rely upon such acts of misconduct in the instant matter because

Petitioner was not charged in the notice of termination with having committed these offenses.

6/ Petitioner argues in his proposed recommended order that the provisions of Policy No. 803 that he allegedly violated are unconstitutionally vague. The Hearing Officer is without authority to, and therefore will not, pass upon this constitutional issue raised by Petitioner. See Cook v. Florida Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

7/ Given the state of the evidentiary record, the Hearing Officer is unable to make any findings concerning the precise, or even estimated, cost incurred by the District as a result of these unauthorized uses of District property and/or personnel.

8/ The evidence, however, does not support a finding that Petitioner's solicitation and acceptance of the loan also amounted to violations of subsections (2), (4) and (6) of Section 112.313, Florida Statutes, inasmuch as it does not demonstrate that Petitioner acted "corruptly," as that term is defined in Section 112.312(9), Florida Statutes, in obtaining the loan or that there was any understanding or expectation on the part of either Petitioner or Rucks that the loan would influence Petitioner's actions as a District employee.

9/ Among the more significant factors militating in favor of such a finding are that Petitioner had an unblemished disciplinary record prior to his termination, that the incidents which resulted in his firing occurred during a time in his life that he was experiencing serious personal problems and that while the loan he received was made to him on behalf of a business entity that was subject to the District's regulation, the loan did not, nor was it expected to by either of the parties to the transaction, influence Petitioner's discharge of his job duties.

10/ Regardless of what perceptions others may have had regarding Petitioner's integrity and his impartiality in dealing with the regulated community, the record is devoid of any indication that, in the "perform[ance of] his regulatory functions," the exercise of Petitioner's judgment was in any way actually influenced by the loan.

11/ While Petitioner did attend a staff meeting at which ethical considerations were discussed, the evidence does not reflect that a topic of discussion at the meeting was the soliciting and accepting of loans from members of the regulated community.

COPIES FURNISHED:

William M. Holland, Esquire

131 U.S. Highway One,

P.O. Box 12365

Lake Park, Florida 33403

Michael Mattimore, Esquire

150 South Monroe Street Suite 301

Tallahassee, Florida 32301

Frances M. Jauquet, Esquire Post Office Box 24680

West Palm Beach, Florida 33416-4680

Tilford C. Creel, Executive Director South Florida Water Management District Post Office Box 24680

West Palm Beach, Florida 33416-4680

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

JUNE BHEBE,

Petitioner,

vs. DOAH CASE NO. 92-3101

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Respondent.

/

This case came before the Governing Board of the South Florida Water Management District (District) on December 10, 1992 pursuant to the Recommended Order entered by Hearing Officer Stuart M. Lerner and the Exceptions filed by District staff. The Governing Board having considered these exceptions, the record information and after having heard argument by the parties and being otherwise fully advised, enters the following findings of fact, conclusions of law and order.

FINDINGS OF FACT

1. This proceeding concerns a challenge brought by Petitioner, June Bhebe, to the District's termination of Petitioner's employment with the District on the grounds that Petitioner had engaged in various acts of misconduct that were described in the January 9, 1992 memorandum (attached as Exhibit A) and further

   detailed in Corrective Action Notices given to Petitioner with the memorandum. The memorandum further advised Petitioner of his right to respond to the charges and to request a Chapter 120 F.S. hearing.

   
   

2. Petitioner filed a petition for a hearing which was accepted by the Governing Board and forwarded to the Division of Administrative Hearings for further proceedings. A formal hearing was held on August 6, 1992 in West Palm Beach, Florida.

   
   

3. On October 26, 1992, Hearing Officer Lerner submitted his Recommended Order to the District. (Exhibit B.)

   
   

4. District staff timely filed exceptions to the Recommended Order on November 10, 1992. (Exhibit C.)

   
   

5. On December 10,1992, upon consideration of the Recommended Order, the exceptions and the record, and after having heard argument of the parties, and being informed of the standard of review relating to recommended orders and penalties, this Governing Board adopted the Findings of Fact #1 through 58 in the Hearing Officer's Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

6. In reviewing the Hearing Officer's Recommended Order and District staffs Exceptions, the Governing Board must comply with the procedural requirements of Chapter 120, F.S. Section 120.57(1)(b)10. provides that the Governing Board may reject or modify conclusions of law and interpretations of administrative rules in the recommended order while accepting the findings of fact. An administrative agency's interpretation of its own rules is entitled to great weight. Baptist Hospital Inc. v. State Department of Health and Rehabilitative Services, 500 So.2d 620 (Fla. 1st DCA 1986), Florida Department of Correction v. Provin, 515 So.2d 302 (Fla. 1st DCA 1987).

   
   

7. The Hearing Officer's Conclusion of Law #76 stated that "[t]here is no reason to believe, that if given another opportunity, Petitioner will not learn from his past mistakes, modify his conduct accordingly and become the effective and valued District employee he once was" indicating the District's corrective action guidelines require a showing that there must be a "permanent impairment of his effectiveness as a District employee." Contrary to this Conclusion of Law, the District's guidelines for establishing the severity of corrective action do not require consideration as to whether the employee, if given additional opportunities, would conform his or her conduct and become an effective District employee. Rather the guidelines provide that:

   
   

   3. The use of a particular form of corrective action is not mandatory simply because it is listed in Section .... The corrective action selected must be ultimately appropriate in light of the particular circumstance surrounding the incident and the employee's past performance and conduct record. For example, even for offenses where dismissal

   is not indicated for a first offense, dismissal on a first occurrence may be assessed for an aggravated offense or continuous pattern of misconduct.

   Similarly, where dismissal is indicated, a

   less severe form of corrective action may be taken. This action may be taken so long as it is more severe than that given in the most recent prior occurrence that is still active, and is reasonably consistent with other cases of misconduct for other employees.

   (Recommended Order, Finding of Fact #21.)

   
   

   Since the guidelines, as found by the Hearing Officer in his Recommended Order at Finding of Fact #21, are contrary to the Hearing Officer's interpretation, the Hearing Officer erred as a matter of law in setting this standard for the District.

   
   

8. The correct conclusion of law is that the corrective action must be appropriate under the circumstances, and may take into consideration aggravated offenses or a continuous pattern of behavior, and the employee's past performance and conduct record in determining the severity of corrective action.

   
   

9. In the instant case, the record reveals that:

   
   

   1. Petitioner was having personal problems. (Finding of Fact #58)

      
      

   2. Petitioner's prior record was good. (Finding of Fact #2)

      
      

   3. There were numerous proven offenses, some of which would individually justify dismissal. (Allegations Proven, Conclusions of Law #69-70). More than one offense could weigh in favor of dismissal. (Finding of Fact #22).

      
      

10. The Governing Board has the authority to modify and increase a penalty under section 120.57(1)(b)10, F.S., when it reviews the complete record and states with particularity the reason for the increase or decrease in the penalty in its final order with citations to the record to support the change.

    
    

11. The Supreme Court of Florida earlier this year elucidated the standard for modifying a Hearing Officer's recommended penalty in Criminal Justice Standards v. Bradley, 596 So.2d 661 (Fla. 1992). The Court stated:

    
    

    as long as the statute under which a professional agency operates provides guidelines for imposing penalties, the agency complies with section 120.57(1)(b)10, F.S., and the increased penalty falls within the guidelines established by its statute, a

    professional board or agency has the discretion to increase the recommended penalty. Bradley at 663, followed in Chase v. Pinellas County School Board, 597 So.2d 419 (Fla. 2d DCA 1992).

    
    

12. Sections 373.079(4)(a) and 373.044 F.S., authorize the District to hire employees and adopt rules. The District has adopted the Corrective Action Policy as a rule. (Conclusion of Law #62). The Hearing Officer found that a majority of the alleged offenses were proven and that the offenses were subject to the Corrective Action Rule. (Conclusions of Law #69-70).

    
    

13. The Governing Board has the ultimate expertise in setting the punishment for the misconduct of its employees. Bradley, supra.

14. The appropriate punishment for the proven offenses in their totality should be based upon the factors enumerated in District staff's Exception #5. The particular conduct surrounding the incidents includes three instances of lying, one instance of falsification of a district record, four instances of unauthorized use of district property with the intent of personal gain, one instance of improper or careless use of district property, one instance of violation or disregard of safety practices, one instance of negligence, and one instance of unbecoming conduct. The Hearing Officer erred in failing to consider that there were four offenses for which dismissal would be warranted.

    
    

15. Determination of the appropriate punishment should also take into consideration the aggravating factors enumerated in District staff's Exception #6. This includes the circumstances of the loan being from a regulated entity, use of a District automobile for personal business ending in an accident, falsifying accident reports and continuing to lie about the incident.

    
    

16. The District staffs Exception #10 that the District cannot re-instate Petitioner because of the unsafe driving record cannot be considered because it is not based upon record evidence. There are no findings in the Recommended Order that positions are unavailable for which the employee is qualified which do not require a driver's license. Without such record evidence, the rationale of Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990) is not applicable.

    
    

17. The Conclusions of Law #59 through 75 contained in the Hearing Officer's Recommended Order are adopted.

ORDER

1. District staff's Exceptions #1 through 9 are accepted based upon the grounds set forth above at paragraphs 7 through 15.

   
   

2. District staffs Exception #10 is rejected based upon the grounds set forth above at paragraph 16.

   
   

3. The Hearing Officer's Conclusion of Law #76 and Recommended Corrective Action are rejected based upon the grounds set forth above at paragraphs 7 through 15.

   
   

4. The Hearing Officer's Findings of Fact #1 through 58 and Conclusions of Law #59 through 75 as set forth in the Recommended Order are adopted.

   
   

5. Petitioner's employment with the District is terminated as of January 14, 1992 based upon the acts of misconduct outlined in Conclusion of Law #70 set forth in the Hearing Officer's Recommended Order and adopted herein.

DONE AND ORDERED this 15th day of December, 1992 at a public meeting at 3301 Gun Club Road, West Palm Beach, Florida.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT BY IT'S GOVERNING BOARD

BY:

Allen Millede, Chairman

ATTEST:

Assistant Secretary

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and a true and correct copy of the foregoing "Final Order" have been furnished by regular mail to Stuart Lerner, Hearing Officer, and William M. Holland, counsel for Petitioner, 131 U.S. Highway #1, Lake Park, Florida 33403, on this 22nd day of January, 1993.

Frances M. Jauquet Associate Attorney

FILED WITH THE CLERK OF THE SOUTH FLORID WATER MANAGEMENT DISTRICT

DATE: 1-15-93

BY:

Deputy District Clerk

Docket for Case No: 92-003101

Orders for Case No: 92-003101