STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6618

)

WILLIAM T. MOONEY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida on March 15, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

For Respondent: William T. Mooney, pro se

1443-A Laura Street Clearwater, Florida 34615

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent should be disciplined, to include a three day suspension without pay, because of the misconduct alleged in the Notification of Suspension issued herein.

PRELIMINARY MATTERS

By undated Notice of Suspension issued sometime after September 9, 1993 and before November 3, 1993, the City Manager, City of Clearwater, indicated the City's intention to suspend Respondent for three days effective November 3, 1993, because of alleged insubordination on his part on September 9, 1993. On October 14, 1993, Respondent submitted his answer thereto and matters in opposition to the proposed action, but by letter dated October 29, 1993, the City Manager rejected Respondent's explanation and his request that the suspension be withdrawn. Thereafter, On November 8, 1993, Respondent requested a formal hearing and this matter followed.

At the hearing, Petitioner presented the testimony of Anna Fierstein, a staff assistant with the City's Human Resources Department; Joseph Reckenwald, Superintendent of the City's Water and Pollution Control Division; Iracema Drysdale, a utility chemist and lead worker at the City Water Department; Doreen

Spano, the City's utility laboratory supervisor; Antoinette C. DeMita, utility chemist at the City's Northeast Laboratory; and Gregory R. Olson, a laboratory technician. Petitioner also introduced Petitioner's Exhibits 1 - 7. Respondent testified in his own behalf and introduced Respondent's Exhibits A and B.

A transcript of the proceedings was furnished. After the hearing, Petitioner's counsel submitted Proposed Findings of Fact which have been approved and are incorporated within the body of this Recommended Order. Respondent submitted two letters to the undersigned subsequent to the hearing which appear to be additional argument in support of his position and which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, William T. Mooney, worked as a laboratory technician for the City of Clearwater's Public Works/Water Pollution Control Division.

   
   

2. On April 15, 1993, Doreen Spano, the City's utility lab supervisor, held a meeting of her division personnel at which she identified Iracema Drysdale as the lead worker and, in order to clarify any misconceptions among lab workers as to work deadlines, presented a policy letter for the lab, entitled "New Work Schedule". The schedule set guidelines and deadlines for the daily workload. The memorandum contains inconsistent statements, however. For example, while Ms. Spano indicated both in the memo and at hearing that the instructions therein are merely guidelines, she also used such imperatives as "must" and "will" in the memo. Specifically, the memorandum indicates the daily plant BOD must be in the incubator by 12:00 PM, and the daily plant bacteria must be in the incubator by 12:30 PM.

   
   

3. Respondent has worked in this City laboratory for approximately 14 years. During this time he has developed a method of accomplishing his tasks which is described by Ms. Drysdale as less than efficient. She indicates he frequently misses his time deadlines and works at his own pace. Respondent, on the other hand, claims he has always completed his tasks according to the Standard Methods Manual, but, due to the time the samples are received in the lab, could not accomplish both the BOD and the bacteria procedures within the guidelines set in that manual and the Environmental Protection Agency standards manual. Either one or both would be late. This controversy, much of which was made by both sides, is, in reality, only peripherally related to the issue in controversy here which is whether Respondent was insubordinate or not on September 9, 1993.

   
   

4. Both Ms. Drysdale and the Respondent signed the memorandum in question here indicating their receipt and understanding of the directions contained therein. Thereafter, on September 9, 1993, Ms. Drysdale entered the lab shortly before the lunch period to find the bacteria procedure not done and Respondent working on the BOD procedure. It appears that the bacteria sample was taken at 6:00 AM on this day and, under EPA guidelines, had to be preserved in the incubator within six hours or the results of the procedure would be invalid and not eligible for reporting to the EPA. When Ms. Drysdale asked Respondent why he was doing the BOD when the bacteria procedure had not been accomplished, he indicated that Ms. Spano's memorandum required the BOD to be done by 12:00 noon and the bacteria not until 12:30 PM. He considered this a directive and indicated he would complete his work consistent therewith.

5. Again, there is a contradiction in the testimony as to the nature of the conversation between Ms. Drysdale and the Respondent. Ms. Drysdale asserts that about noon on the day in question, she suggested to Respondent that he start the bacteria procedure first and then do the BOD procedure. Respondent refused because he believed he had to follow the new work schedule prepared by Ms. Spano. Ms. Drysdale then told him to do the bacteria procedure first and she would assume the responsibility. Respondent still refused and, raising his voice to her, completed the BOD procedure. When he finished that, he did the bacteria procedure but by that time, the sample was too old and had to be discarded.

   
   

6. Respondent's recounting of the incident is somewhat different. He claims he was approached by Ms. Drysdale who asked him why he did the bacteria procedure after the BOD procedure. When he pointed out the dictates of the memorandum, she claimed to know nothing about it even though her signature, along with that of Respondent and Mr. Olson, appears on the bottom thereof. Nonetheless, according to Respondent, Ms. Drysdale said she would check on it. After lunch, according to Respondent, Ms. Drysdale came back with the Standard Methods book. When he showed her the new work rules, he claims, she admitted she was aware that Ms. Spano had written them. When he asked her what Ms. Spano had said about the situation, she allegedly replied, "Why don't you do it the way I say and if Doreen (Ms. Spano) asks, I'll take the responsibility." Respondent was upset because, he contends, things like this always happen.

   
   

7. Respondent, in subsequent testimony, denied ever getting a direct order from Ms. Drysdale or that she indicated she would assume responsibility. On balance, while there is little doubt in Ms. Drysdale's testimony as to what happened, Respondent tells two different stories regarding the conversation. At one point he claims she asked him why he didn't do it her way and that if he did, she'd assume responsibility. At another, he claims she merely asked why he was doing the procedures as he was and made no mention of assuming responsibility. It is clear that Ms. Drysdale wanted the bacteria procedure done first, and while she might not have couched her request in directory language, there can be little doubt she communicated her desires to Respondent, albeit in a perhaps more gentle manner. In any case, she was Respondent's supervisor and he knew it. She wanted the work done as she indicated and her request, made under the authority she had to get the work done as she desired, had the force and effect of a direct order which Respondent disobeyed at his peril.

   
   

8. Ms. Spano indicated she discussed not only the appointment of Ms. Drysdale as lead worker at the April 15, 1993 meeting, but also the six hour requirement for specimens. Respondent denies this, but it is found he knew exactly what the requirements were. He claims he has been doing things the way the memorandum calls for ever since it was promulgated and this is not inconsistent with his current position on doing the BOD procedure first.

   
   

9. When this incident took place, Mr. Reckenwald, the superintendent of the water and pollution control division, and the overall supervisor of the laboratory operation in question, received a recommendation for discipline, primarily because of Respondent's failure to follow orders. In addition, however, the incident created a problem for the City which has to report to the EPA and other federal agencies. Because of this report requirement, it is imperative the work be done properly. If it is not done properly, the work is worthless and may result in sanction action against the city by federal

   regulatory agencies. Not the least of concerns, also, is the public health consideration since effluent, the source of samples for both BOD and bacteria procedures, is discharged into the public waterways.

   
   

10. On the basis of the above, a recommendations was made that Respondent receive a three day suspension. This is consistent with disciplinary guidelines contained in the City's Guidelines For Disciplinary Action. Respondent appealed the action to the City Manager who reviewed his submittal but nonetheless upheld the disciplinary action proposed.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

12. Clearwater's Civil Service Rule 14, Section 1(k), lists as grounds for dismissal when an employee:

    
    

    ... has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public.

    
    

13. The City's Guidelines for Disciplinary Action are, by their very terms, to be considered not as a limitation upon disciplinary action to be taken but as merely a guideline. As such, any penalty imposed may exceed that listed in the guidelines if justified.

    
    

14. Respondent has been charged with insubordination by refusal to perform work assigned or failure to comply with written or verbal instructions of the supervisory force. This is a Level 4 offense, the suggested penalty for which, for a first offense, is a three to seven day suspension and forty disciplinary action points. The penalty intended in this case, if disciplinary action is appropriate under the circumstances, is exactly that which is suggested by the Guidelines.

    
    

15. Notwithstanding Mr. Mooney may have thought he was doing his job properly, the unalterable fact is that he was given, in clear and ubambiguous language, a direction by his supervisor to perform that work in accordance with certain priorities. He failed to comply with those instructions, and it matters not that he thought he was doing the right thing. When an employee is given instructions by a supervisor who clearly indicates that he or she will assume responsibility for any problem with compliance with that order, the employee disobeys at his or her own risk. This is what happened here.

    
    

16. Ms. Drysdale, Respondent's immediate supervisor, instructed him to set up the plant bacteria samples by 12:00 PM. Respondent may have been procedurally correct in his contention that the BOD should have been done first, but the fact remains he was instructed by his supervisor to comply with her instructions, with the assurance by her that she would assume responsibility for

the deviation. His failure to comply with her instructions, under the circumstances of this case wherein her direction was neither illegal nor immoral, constituted actionable insubordination, and the disciplinary action proposed therefore is appropriate and within limits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the City of Clearwater take final action in this matter to consist of suspension of the Respondent without pay for three days and imposition of 40 disciplinary action points.

RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 24th day of May, 1994.

COPIES FURNISHED:

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

P.O. Box 4748

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-006618

Orders for Case No: 93-006618