STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EDWARD W. HAYDEN, )
)
Petitioner, )
)
vs. ) CASE NO. 93-3967
) WEST COAST REGIONAL WATER ) SUPPLY AUTHORITY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on October 14, 1993, in Clearwater, Florida.
APPEARANCES
For Petitioner: Edward W. Hayden, pro se
505 Hedgerow
Brandon, Florida 33510
For Respondent: Thomas M. Gonzalez, Esquire and
Gregory A. Hearing, Esquire Thompson, Sizemore and Gonzalez, P.A. Post Office Box 639
Tampa, Florida 33601 STATEMENT OF THE ISSUE
Whether or not Respondent properly terminated Petitioner from his position of Purchasing and Property Records Manager.
PRELIMINARY STATEMENT
By letter dated May 5, 1993, Respondent advised Petitioner that he was terminated pursuant to Rule 16M-2.037, Florida Administrative Code because of his "failure to fulfill [his] job duties to the detriment of the Authority." Specifically, Petitioner was advised that as Purchasing and Property Records Manager, he was charged with protecting Authority assets and that he failed to do so by selling certain items of value at a surplus auction. Petitioner was advised of his right to timely request a formal hearing which was done. On July 19, 1993, Petitioner's request for formal hearing was transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing. Following a joint response from the parties, on August 23, 1993, this matter was noticed for hearing for October 14, 1993 and was heard as scheduled. At the hearing, Respondent presented the testimony of Koni Cassini, the director of finance; Harold Aiken, Respondent's general manager; Jamie Schultz and Allison Adams, an environmental engineer who is
employed as Respondent's director of resource planning. Petitioner testified on his own behalf and cross-examined Respondent's witnesses. Petitioner's Exhibits
1 through 4 were offered and received into evidence at the hearing. Petitioner's Exhibit 5 was offered but was rejected at the hearing. Respondent offered 8 exhibits which were received in evidence during the hearing.
The parties made closing arguments which were considered in preparation of this Recommended Order. Likewise, Respondent presented a proposed recommended order which included proposed findings of fact and conclusions of law.
Respondent's proposed findings of fact are substantially incorporated in this Recommended Order.
FINDINGS OF FACT
Petitioner, Edward W. Hayden (herein Petitioner), was employed by Respondent, West Coast Regional Water Supply Authority (herein Respondent or the Authority), from April 19, 1992 until his discharge on May 5, 1993. During the entire period of his employment, Petitioner held the position of Purchasing and Property Records Manager.
Respondent is a water wholesaler for the Pinellas, Pasco and Hillsborough tri-county area. Respondent is managed by a general manager, Harold Aiken, who reports to a board of directors which is comprised of elected officials from five member governments. The five member governments are Hillsborough, Pinellas and Pasco Counties, and the Cities of St. Petersburg and Tampa.
Four directors report to general manager Aiken. These directors manage different parts of the Authority subject to the direction of manager Aiken. The general manager implements the policies and directives of the board of directors, administers personnel rules and oversees the day-to-day functions of Respondent. The general manager's authority specifically includes the ability to discharge employees.
Petitioner, as purchasing and property records manager, was the person charged with overseeing Respondent's property and purchasing functions. Petitioner was responsible for developing and following procedures for purchasing, inventory control and maintenance of property records. In a nutshell, Petitioner was charged with protecting and safeguarding Respondent's assets.
Petitioner's specific duties included developing, administering and managing the disposal of surplus property on behalf of the Authority. Petitioner reported to Koni Cassini, Respondent's director of finance, and general manager Aiken.
Petitioner was hired because Respondent had experienced some difficulty maintaining inventory control and the management of its assets. In this regard, Petitioner has extensive experience in accounting and logistics management, having earned a bachelor's degree in business management and a master's degree in business administration. Additionally, he has extensive training in inventory control and management techniques. He served in the U.S. Air Force in excess of twenty years as an inventory management specialist and was assigned a number of critically responsible supervisory/leadership positions. Petitioner, while in the Air Force, managed operations as large as 72 assigned personnel and
$42 million of inventory within a strict budget of taxpayer dollars.
The purchasing, inventory control and property functions of the Authority are carried out through the finance department. The Authority works under a purchase order system wherein each item that is purchased must have a corresponding purchase order. Purchase orders must be approved by various officials within the Authority depending upon the purchase price. As example, if the price of the item to be purchased is anywhere from zero to $500, a manager's signature is required on the purchase order. For items priced between
$500 to $1000, a department director's signature is required on the purchase order. For items priced between $1000 to $15,000, the general manager must approve and sign the purchase order. For items priced in excess of $15,000, the board of directors' approval is required to effectuate the purchase. The signatures are required as part of the Authority's checks and balance system which is used to preserve and protect public funds expended by the Authority.
Respondent has specific inventory control guidelines which govern the disposal of surplus property. The guidelines encompass six different procedures to dispose of surplus property. The first, and preferred method of surplus disposal, is by donation to one of the five member governments. The Authority uses a second method of disposal of surplus property which is classified as "junk" if it has no value, is beyond repair, and cannot be donated to a member government.
A third method of disposal is to sell the property by sealed bid. The sealed bid method is used when either the quality or quantity of the items for sale is insufficient to justify public auction, i.e., the items are without value to the Authority. The most common way of determining whether the property has any value is to conduct a public auction or to "spot bid" the property. The sealed bid method can be utilized by outside vendors and/or employees. The Authority uses the employee sealed bid surplus sale for items that have no value. It is generally understood throughout the Authority that items that are placed in an employee's sealed bid surplus sale are useless to the Authority or have no commercial value whatsoever. Items placed in that sale are items which are basically to be "thrown away".
A fourth method of disposal is "spot bidding". This entails contacting buyers, on an informal basis, to determine whether they are interested in bidding on the surplus property.
A fifth and another preferred method of disposal is to sell the property via public auction. The Authority has conducted public auctions in the past either by itself or through the use of a private entity, the Tampa machinery auction, which conducts public auctions on behalf of private and governmental bodies. Tampa machinery auction handles all administrative duties, such as advertising, marketing and operations of the auction including collection of proceeds from the sale.
The final method of disposal of surplus property is by "trade-in". This method involves obtaining a trade-in value for surplus property when the Authority is purchasing new property.
Upon completion of Petitioner's probationary term of employment, a six-month period, his work performance declined considerably. Specifically, Petitioner was assigned the task of drafting a purchasing manual to be used by the board of directors for the board's approval. Petitioner failed to complete the purchasing manual in a timely manner and the director of finance, Koni Cassini, undertook the drafting and completion of the manual. Cassini completed the draft of the manual and it was approved by the board.
During February, 1993, Petitioner decided to conduct the employee surplus property sale which is at issue herein. Petitioner's subordinate, James Krug, who held the position of property specialist, compiled a list of surplus property to be sold at Petitioner's direction. Petitioner and Krug circulated the surplus property list to the general manager and the department directors and also notified them of their decision to conduct an employee surplus property sale to dispose of items on the submitted list.
Krug prepared the surplus property list which was reviewed by Petitioner. The surplus property sale was the first employee surplus property sale conducted by Petitioner during his tenure as purchasing and property records manager.
Petitioner initially considered having a public auction prior to conducting the surplus property sale, but decided against it based on his "busy schedule".
When manager Aiken received Krug's memorandum attaching the list of items to be sold in the surplus sale, he noticed that the list included a telecopier machine. He directed his secretary to contact Petitioner to determine the condition of the telecopier machine. Based on his inquiry, manager Aiken learned that the telecopier machine was functional and, therefore, instructed Petitioner to remove it from the list. He subsequently contacted Cassini to advise that the list contained at least one item of value. He directed Cassini to require that Petitioner provide a detailed description of the items on the list including whether the items were functional, non- repairable, or had any value to the Authority.
Subsequently, on March 19, 1993, Cassini contacted Petitioner by memorandum and directed that he provide a description of all items on the list as Aiken requested.
The surplus sale was to be held on March 24, 1993. On March 22, 1993, Petitioner sent a memorandum to Cassini stating that he would not provide the requested description of the items for the current sale, but would do so at the next time that the Authority had a surplus sale. At that time, Petitioner assured Cassini that there were no items of value on the current list.
Cassini did not follow up on her March 19, 1993, memorandum based on Petitioner's assurance that there were no items of value remaining on the surplus list.
Petitioner conducted the surplus property sale, which sale included several items of value including three trench safety units, a three-ton air conditioning unit and a refrigerator.
Trench safety units are suspension systems that are used to lower workers into the ground to inspect and repair open pipes. The trench safety units cost Respondent $5,000 each when purchased new during 1990.
The surplus property list described the trench safety units as "mini- lift systems".
Petitioner described the trench safety units in this manner, even though employees of the Authority referred to the units as "trench safety units" and not "mini-lift systems".
Petitioner advised several Authority personnel, including manager Aiken and Cassini, that all of the items on the surplus property list were in rough to poor condition and had no value. As example, he advised the Authority's personnel manager, Holly Manning, that the items on the surplus list were "junk".
Respondent purchased the trench safety units for a pipeline investigation in 1990 at the direction of Allison Adams, the Authority's special projects coordinator. The Authority only utilized the safety units during that investigation; however, it could and intended to utilize the safety units in the future for the maintenance of underground pipes or to conduct other subterranean investigations.
Petitioner did not contact either the member directors or the general manager for authorization to dispose of the safety units.
Likewise, Petitioner did not contact the member governments to determine whether they could use the safety units, nor did he attempt to obtain any sealed bids on the safety units other than through the employee surplus sale. Petitioner did not "spot bid" the safety units prior to including them in the employee surplus sale.
Petitioner also listed a three-ton air conditioning unit in the employee surplus sale, despite the fact that it was in good operating condition and had a value of approximately $1,500. Although it was his duty to know all items of value on the surplus sale, Petitioner did not have any idea of the value of the air conditioning unit. Likewise, Petitioner did not spot bid the air conditioning unit prior to including it in the surplus property sale.
Two Authority employees purchased the three trench safety units through the sale. Jim Krug, the property specialist who included the units in the surplus property list, purchased one of the units for $223. The other two safety units were sold to Rick Minjarez, a water plant operator, for $175 each. The safety units were in good condition when they were sold.
Within ten days of purchasing the safety units from the Authority, Krug and Minjarez sold the items to an outside vendor, who had engaged in business with the Authority in the past, for $1,000 per unit.
Cassini conducted an investigation when she learned that the surplus sale had been conducted and that items of value had been sold. Based upon her initial investigation, Cassini recommended that Petitioner and Krug be put on administrative leave without pay pending the outcome of her investigation.
Petitioner and Krug were then given an opportunity to explain why the safety units and other valuable property items were included in the sale contrary to his assurance. After Hayden and Krug received pre-termination hearings, Aiken terminated Hayden and Krug on May 5, 1993, based upon Cassini's recommendation.
Aiken issued Minjarez a written reprimand for his part because of his failure to bring to the Authority's attention the fact that the items which he purchased were "items of value". Minjarez was not discharged because of Respondent's determination that he was not specifically responsible for protecting the Authority's assets and did not prepare the list of items which were sold. (Minjarez and Krug's disciplinary action is not at issue herein).
Petitioner was recommended for discharge by Cassini based upon the fact that he was hired to oversee the purchasing and property functions of the Authority and he failed to fulfill his duties in that regard. Cassini also determined that, by Petitioner's actions, he was insubordinate and misused the Authority's assets to its detriment. Finally, Cassini recommended that Petitioner be discharged because of his insubordination and his failure to comply with her directive that he protect the property interests of the Authority.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties this proceeding pursuant to Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to Chapter 120, Florida Statutes.
The Authority's personnel rules are codified at Chapter 16M-2, Florida Administrative Code.
Rule 16M-2.036, provides for the discharge of Authority employees for, among other things, insubordination, misconduct deleterious to the Authority's ability to carry out its public service responsibilities, and deliberately misusing the Authority's property.
Rule 16M-2.036, Florida Administrative Code, also provides, in pertinent part, that any employee of the Authority who suffers disciplinary action, including discharge, may request a formal hearing to be conducted pursuant to Section 120.57(1), Florida Statutes. Rule 16M-2.036, Florida Administrative Code, sets forth the Agency's policy respecting discharge. It provides, in pertinent part, that:
Discharge. Discharge is the most severe disciplinary action which may be levied against an employee. This disciplinary action may only be levied for the following reasons:
insubordination. . . .
* * *
misconduct - conduct deleterious to the West Coast Regional Water Supply Authority's ability to carry out its public service responsibilities.
deliberately misusing, destroying, or damaging the West Coast Regional Water Supply Authority's property.
Respondent presented evidence at hearing that Petitioner engaged in acts warranting his discharge based on his acts of insubordination, misconduct deleterious to the Authority's ability to carry out its public service responsibilities, and deliberately misusing the Authority's property within the purview of Subsections (1), (4) and (5) of Rule 16M-2.036, Florida Administrative Code.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:
Respondent enter a final order dismissing Petitioner's petition for relief and terminate him from employment.
DONE and ENTERED this 21st day of January, 1994, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
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 21st day of January, 1994.
COPIES FURNISHED:
Harold Aiken, General Manager West Coast Regional Water
Supply Authority
2535 Landmark Drive, Suite 211
Clearwater, Florida 34621
Thomas M. Gonzalez, Esquire Gregory A. Hearing, Esquire THOMPSON, SIZEMORE
Post Office Box 639 Tampa, Florida 33601
Edward W. Hayden
505 Hedgerow
Brandon, Florida 33510
Edward P. de la Parte, Jr., Esquire DE LA PARTE & GILBERT
One Tampa City Center, Suite 2300 Post Office Box 172537
Tampa, Florida 33672-0537
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 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
================================================================= WEST COAST REGIONAL WATER SUPPLY AUTHORITY
EDWARD W. HAYDEN,
Petitioner,
vs. FINAL ORDER NO. 94-01 FOF
DOAH CASE NO. 93-3967
WEST COAST REGIONAL WATER SUPPLY AUTHORITY,
Respondent.
/
FINAL ORDER
This matter came before the Board of Directors of the West Coast Regional Water Supply Authority (the "Authority") on March 21, 1994, after receipt, review, and consideration of the Hearing Officer's Recommended Order dated January 21, 1994, in the above- referenced matter.
PRELIMINARY STATEMENT
By letter dated May 5, 1993, the Authority advised Petitioner that he was terminated from his employment with the Authority pursuant to Rule 16M-2.037, Florida Administrative Code, based upon reasons stated within the letter.
Petitioner requested a formal administrative hearing related to the Authority's decision to terminate Petitioner's employment. On October 14, 1993, such a formal hearing was held before a hearing officer of the State of Florida, Division of Administrative Hearings.
On January 21, 1994, Hearing Officer James E. Bradwell issued a Recommended Order and forwarded a copy of the Recommended Order to the General Manager of the Authority pursuant to Section 120.57(1), Florida Statutes. A copy of the Recommended Order is attached hereto and incorporated herein by reference as Exhibit "A."
By letter dated February 7, 1994, and received by the Authority on February 10, 1994, Petitioner timely submitted written exceptions to the Recommended Order. A copy of Petitioner's February 7, 1994, letter and attachments is attached hereto and incorporated herein by reference as Exhibit "B." However, Petitioner failed to provide the Authority with a copy of the transcript of the formal administrative hearing, as was his burden and responsibility under Section 120.57(1)(b)10, Florida Statutes (1993). See Booker Creek Preservation,
Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).
After consideration and being fully advised in the premises, the Authority Board of Directors enters this Final Order, making the following Findings of Fact, Conclusions of Law, and Rulings on Petitioner's Exceptions:
FINDINGS OF FACT
The Authority Board of Directors adopts as its Findings of Fact the hearing officer's Preliminary Statement and paragraphs 1 through 35 of the hearing officer's Findings of Fact.
CONCLUSIONS OF LAW
The Authority Board of Directors adopts paragraphs 36 through 41 in the hearing officer's Conclusions of Law in the Recommended Order as its Conclusions of Law.
The Authority has jurisdiction over this matter and the parties. The Authority has jurisdiction to enter this Final Order. Sections 120.57(1)(b)10 and 120.59(1), Florida Statutes (1993).
RULINGS ON PETITIONER'S EXCEPTIONS
When submitting his February 7, 1994, letter and exceptions, Petitioner failed to provide the Authority with a copy of the record as required by Section 120.57(1)(b)10, Florida Statutes. See Booker Creek; and Bradley. Therefore, the Authority is without any basis to disturb the hearing officer's Findings of Fact. See Crawley v. Department of Highway Safety & Motor Vehicles, 616 So.2d 1061 (Fla. 1st DCA 1993). The matters excepted are deemed to be supported by competent substantial evidence. In addition, Petitioner's exceptions consist mostly of what appear to be restatements and reargument of his presentation of evidence which the Authority can only assume has already been heard, considered and weighed by the hearing officer. Thus, even if the Authority had been provided a transcript, it appears Petitioner's exceptions would still have to be rejected. See Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).
Petitioner's Exceptions Paragraphs 1 through 23, relating to Findings of Fact and Conclusions of Law in the Recommended Order are denied and rejected. Petitioner failed to provide the Authority with a copy of the transcript of the formal administrative hearing. Therefore, the matters excepted are deemed to be supported by competent substantial evidence. See Booker Creek; and Bradley.
In addition, Petitioner's Exceptions in Paragraphs 2 through 23 are irrelevant and, therefore, cannot be considered. Section 120.58(1)(a), Florida Statutes (1993).
Petitioner's Recommendation relating to the Recommended Order is denied and rejected. Petitioner failed to provide the Authority with a copy of the transcript of the formal administrative hearing. Therefore, the Hearing Officer's Recommended Order is deemed to be supported by competent substantial evidence. See Booker Creek; Bradley; and Heifetz.
Based upon the foregoing Findings of Fact, Conclusions of Law, and Rulings On Petitioner's Exceptions, it is
ORDERED AND ADJUDGED as follows:
Petitioner's petition for relief in this matter is dismissed.
Petitioner is terminated from the Authority's employment effective May 5, 1993.
Petitioner's Exceptions and Recommendation dated February 7, 1994, are denied and rejected.
NOTICE OF RIGHTS
This Final Order constitutes final agency action. Any party to this order who is adversely affected by this final order has the right to seek judicial review of the order under Section 120.68 of the Florida Statutes by the filing of a notice of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure with the clerk of the West Coast Regional Water Supply Authority, 2535 Landmark Drive, Suite 211, Clearwater, Florida 34621, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. A notice of appeal must be filed (received) within thirty (30) days after this final order is filed with the clerk of the West Coast Regional Water Supply Authority.
WEST COAST REGIONAL WATER WATER SUPPLY AUTHORITY
Chairman
Board of Directors
RENDERED March 21, 1994, in Pinellas County, Florida.
Service Copies to:
Mr. Edward W. Hayden
505 Hedgerow
Brandon, Florida 33510
Thomas M. Gonzalez, Esquire Gregory A. Hearing, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639
109 N. Brush Street, Suite 200 Tampa, Florida 33601
Harold V. Aiken General Manager and Agency Clerk
Edward P. de la Parte, Jr. Post Office Box 2350
One Tampa City Center, Suite 2300 Tampa, Florida 33601-2350
| Issue Date | Proceedings |
|---|---|
| Apr. 06, 1994 | Final Order filed. |
| Jan. 28, 1994 | CC Letter to Edward W. Hayden et al from Michael A. Skelton (re: Exceptions to Recommended Order) filed. |
| Jan. 21, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held October 14, 1993. |
| Nov. 24, 1993 | Respondent`s Proposed Recommended Order and Closing Argument filed. |
| Nov. 24, 1993 | Respondent`s Proposed Recommended Order and Closing Argument filed. |
| Nov. 23, 1993 | Petitioner`s Closing Arguments filed. |
| Nov. 19, 1993 | Order Granting Extension of Time sent out. |
| Nov. 15, 1993 | Respondent`s Motion for Extension of Time to File Proposed Recommended Order and Closing Argument filed. |
| Nov. 03, 1993 | Letter to JEB from Kimberli B. English (re: transcript) filed. |
| Nov. 01, 1993 | Transcript (Volumes 1&2) filed. |
| Oct. 15, 1993 | Notice of Filing Ex Parte Communications filed. (From Edward P. de la Parte, Jr.) |
| Oct. 14, 1993 | Respondent`s Exhibit List filed. |
| Oct. 14, 1993 | CASE STATUS: Hearing Held. |
| Oct. 14, 1993 | CASE STATUS: Hearing Held. |
| Oct. 04, 1993 | Respondent`s Exhibit List; Respondent`s Witness List filed. |
| Sep. 21, 1993 | Letter to JEB from G. Hearing (re: request for subpoenas) filed. |
| Sep. 02, 1993 | (Respondent) Notice of Potential Conflict With Scheduled Hearing filed. |
| Aug. 30, 1993 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 23, 1993 | Amended Notice of Hearing (as to location only) sent out. (hearing set for 10/14/93; 9:00am; Clearwater) |
| Aug. 17, 1993 | Notice of Hearing sent out. (hearing set for 10/14/93; 9:00am; Clearwater) |
| Aug. 02, 1993 | (Respondent) Notice of Filing Ex Parte Communications filed. |
| Aug. 02, 1993 | Joint Response to Initial Order filed. |
| Jul. 21, 1993 | Initial Order issued. |
| Jul. 19, 1993 | Notice of Transfer of Petition and Request for Assignment of Hearing Officer; Request for Hearing, letter form; Answer to Petition for Formal Hearing; Notice of Filing Ex Parte Communications ; Supportive Documents filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 21, 1994 | Agency Final Order | |
| Jan. 21, 1994 | Recommended Order | Respondent had just cause to terminate Petitioner's employment. |
