STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1363

)

DIANE HASHIL, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 17, 1994, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, 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: J. Robert McCormack, Esquire

Wiggins & McCormack

3040 Gulf-to-Bay Boulevard, Suite 100

Clearwater, Florida 34619 STATEMENT OF THE ISSUE

The issue in this case is whether the City Manager should suspend the Respondent, Diane Hashil, from her employment as a bridge toll booth attendant for three days on charges that she violated Rule 14, Section 1, paragraph (e), of the Civil Service Rules and Regulations of the City of Clearwater.

PRELIMINARY STATEMENT

On or about January 22, 1994, the City Manager of the Petitioner, the City of Clearwater (the City), gave the Respondent, Diane Hashil, written notice that she was being suspended from her employment as a bridge toll booth attendant for three days, effective January 26 through 28, 1994, on charges that she violated Rule 14, Section 1, paragraph (e), of the Civil Service Rules and Regulations of the City of Clearwater: "Has been offensive in his conduct or language toward his fellow employees, City officers, or the public." She appealed under Section

8 of Rule 14, and on March 31, 1994, the matter was referred to the Division of Administrative Hearings. In accordance with the parties' responses to the Initial Order in the case, final hearing was scheduled for June 17, 1994.

At final hearing, Joint Exhibits 1 through 3 were admitted in evidence.

The City then called seven witnesses and had Petitioner's Exhibits 1 and 2 admitted in evidence. The Respondent testified in her own behalf and had Respondent's Exhibits 1 through 5 admitted in evidence. (The City's objection to Respondent's Exhibit 6 was sustained.)

At the conclusion of the presentation of the evidence, the City ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on June 24, 1994.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-1363.

FINDINGS OF FACT

1. The Respondent, Diane Hashil, has been a toll booth attendant for the Harbormaster of the City of Clearwater since July, 1992.

   
   

2. On or about April 2, 1993, she was given a Letter of Reprimand for speaking in a discourteous tone of voice to a customer passing through her toll booth on March 20, 1993, a Level 2 offense under paragraph 2, Guidelines for Disciplinary Action: "Discourtesy to persons with whom an employee comes into contact while in the performance of duties "

   
   

3. On December 17, 1993, the City gave the Respondent written notice that she was being suspended for two days, effective December 21 through 22, 1993, on charges that she violated Rule 14, Section 1, paragraph (e), of the Civil Service Rules and Regulations of the City of Clearwater: "Has been offensive in his conduct or language toward his fellow employees, City officers, or the public." The specifications of the charge were:

   
   

   On November 11, 1993, Mr. Joe Lain, Water Safety Supervisor, in a memo to Mr. Held [the Harbormaster] and Mr. Hancock, related Ms. Hashil's continued unfriendly treatment of himself and other beachguards who pass through the toll plaza on a daily basis

   supervising Sand Key Park and Clearwater Beach.

   
   

   On November 17, 1993, Mr. Lee Achterhof, Lead Marine Facility Operator, wrote a memo concerning Diane Hashil's treatment of a customer. The customer lost quarters Ms.

   Hashil had given them and asked for more change. Ms. Hashil told them she had already given them change, turned her back on them and ignored them as traffic started backing up.

   
   

   This also is a Level 2 offense under paragraph 2, Guidelines for Disciplinary Action: "Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . .." The guidelines provide for a letter of reprimand for the first such offense and a one- to four-day suspension for the second such offense.

4. On the afternoon of Christmas day, December 25, 1993, a woman from Wesley Chapel named Sharon Kressl was driving her mother, Evelyn Campbell, and at least one friend sight-seeing on the Clearwater beaches. They became disoriented on Sand Key and found themselves approaching the Clearwater Pass Toll Bridge without money to pay the 75 toll. The Respondent was the attendant at the toll booth at the time. When Kressl tried to explain their predicament to the Respondent and ask to be allowed to turn around, the Respondent answered, in a manner considered by Kressl and Campbell to be curt and rude: "No. You have to pay and go through." She did not fully explain the City's policy that, after paying the one-way 75 toll and going over the bridge, they would be allowed to turn around and return across the bridge free of charge. She initially also did not explain the City's policy that someone without money to pay the 75 toll could agree to pay at a later date. When Kressl and Campbell asked if they could mail in the 75 , the Respondent got them an envelope and promise to pay that was pre-printed for that purpose. The Respondent got the car's license tag number to fill out the form and read them the part of it that said: "With my signature below, I do hereby agree that I was passed through the above mentioned toll facility without payment. I promise to pay $.75 within 72 hours or this slip will be turned over to the Marine Department for further action."

   
   

5. Kressl, as driver, started to sign the form but saw that it was written for the signature of her mother, as owner of the vehicle, and signed her mother's name instead.

   
   

6. After crossing the bridge onto Clearwater Beach, Kressl and Campbell realized that they could get home from Clearwater Beach without returning to Sand Key and that they did not have to turn around and return across the bridge. They drove across the bridge from Clearwater Beach to Clearwater and drove home along Alternate U.S. Highway 19.

   
   

7. Both women were upset by what they considered to be the rudeness of the Respondent's curt manner. When they got back to their home in Wesley Chapel, Sharon Kressl decided to telephone a complaint. Kressl made at least two telephone calls that day, one to the police to get an address and telephone number for the supervisor of the toll booth attendants and one that by chance was answered by the Respondent, unbeknownst to Kressl. The Respondent told Kressl to call back the next morning to speak to a supervisor. The Respondent inquired as to the nature of the complaint. When Kressl explained it to her, the Respondent realized who Kressl was and that Kressl was complaining about the Respondent. After Kressl hung up, the Respondent wrote a memo denying any misconduct.

   
   

8. Kressl made several telephone calls in the next several days trying to contact the Respondent's supervisor. Again, one of the calls was answered by the Respondent. This time, an argument ensued.

   
   

9. The two women, in their testimony, gave diametrically opposed versions of the telephone call. The Respondent testified that she gave Kressl the telephone number of her supervisor, that the telephone call was conducted in a calm fashion and that, as soon as the Respondent identified herself to Kressl, Kressl hung up. Kressl, on the other hand, testified that, after the Respondent identified herself, a nasty argument ensued, during which Kressl threatened to have the Respondent fired, and the Respondent called Kressl a "bitch." It certainly would be a clear injustice if Kressl were lying about the telephone conversation. But, taking all of the relevant evidence into consideration, it

   is found that the two women did have an argument and that the Respondent did use the term "bitch" to describe either Kressl or her conduct.

   
   

10. As for the incident on December 25, 1993, Kressl and Campbell assert that the Respondent was "discourteous" or "offensive"; the Respondent maintains that she was not. Those concepts are inherently difficult to define precisely. Gross discourtesy and grossly offensive conduct might be easy to recognize, but it is difficult to describe the precise borderline between acceptable manners versus manners that are discourteous and offensive. In addition, different people's perceptions of behavior may not be entirely objective. People can be overly sensitive and perceive as discourteous and offensive behavior that objectively is not; on the other hand, some people cannot recognize their own discourteous and offensive behavior and are oblivious to the effect it has on others.

    
    

11. Bearing in mind these difficulties, it is found that, taking all of the relevant evidence into consideration, the Respondent's behavior towards Kressl and Campbell on December 25, 1993, was discourteous and offensive. It is found that she was curt and that she was not forthcoming in helping Kressl and Campbell resolve their dual predicament of not wanting to cross the Clearwater Pass Toll Bridge and not having the 75 to pay for the toll. She should have been more helpful and more polite.

    
    

    CONCLUSIONS OF LAW

    
    

12. City employees can appeal from a suspension, demotion or dismissal by requesting the appointment of a hearing officer to review the action. See Section 2.285, City of Clearwater Code, and Rule 14, Section 8, of the Civil Service Rules and Regulations of the City of Clearwater. Procedures similar to those set out in Section 120.57, Fla. Stat. (1993), are utilized in the conduct of these appeals. See Section 2.285(3), City of Clearwater Code.

    
    

13. Under the City's Civil Service Rules, City employees can be suspended only for just cause. See Sections 1 and 2, of the Civil Service Rules and Regulations of the City of Clearwater. Under Section 120.57, Fla. Stat. (1993), an agency seeking to dismiss or suspend an employee has the burden to prove, by a preponderance of the evidence, that the employee was guilty of charges constituting just cause for the dismissal or suspension. DiLeo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990). The same burden and standard of proof should apply in this case.

    
    

14. Despite conflicting evidence, it was found both that the Respondent was discourteous to Kressl and her mother on December 25, 1993, and that during a telephone conversation in the following days, the Respondent called Sharon Kressl a "bitch."

    
    

15. The City charged the Respondent with violating Rule 14, Section 1, paragraph (e), of the Civil Service Rules and Regulations of the City of Clearwater, which provides in pertinent part:

    
    

    Sec. 1. Cause for Suspension, Demotion, and Dismissal.--The following, in addition

    to the offenses listed in the Guidelines for Disciplinary Action . . ., are declared to be just causes for suspension, demotion, or dismissal of any employee in the career civil service, though charges may be based

    upon any cause which will promote the efficiency of the City service other than those herein enumerated, namely, that the employee:

    * * *

    (e) Has been offensive in his conduct or language toward his fellow employees, City officers, or the public.

    
    

16. The City of Clearwater Guidelines for Disciplinary Action provide in pertinent part:

    
    

    [The Guidelines] are structured to provide for equality of treatment in discipline.

    However, in recognition of the fact that the circumstances of each infracton or occurrence may differ in many respects from the circumstances in other somewhat similar situations, the City retains the right to treat each occurrence on an individual basis and without creating precedent for other cases which may arise in the future or mitigating previous discipline.

    
    

    Level 2 offenses under the Guidelines justify a letter of reprimand on the first occurence, a one- to four-day suspension on the second occurence, and a three- to seven-day suspension on the third occurence. Under the Guidelines, Level 2 offenses include, among others:

    
    

    2. Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . ..

    
    

17. It is concluded, based on the evidence, that the City has just cause to suspend the Respondent without pay for three days.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order suspending the Respondent without pay for three days.

RECOMMENDED this 29th day of July, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1363

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-2. Accepted but subordinate and not necessary.

1. Accepted and incorporated.

2. Accepted and incorporated to the extent not subordinate or unnecessary. 5.-6. Accepted but subordinate and not necessary.

1. First sentence, accepted but subordinate and not necessary. The rest is argument or subordinate and not necessary.

2. Argument or subordinate and not necessary.

3. Accepted and incorporated to the extent not subordinate or unnecessary.

Respondent's Proposed Findings of Fact.

1.-2 Accepted and incorporated.

3.-4. Accepted but subordinate and not necessary.

1. Accepted and incorporated.

2. Rejected as contrary to facts found and as contrary to the greater weight of the evidence that her "priors" "consisted mainly of" those things. Accepted that she was warned about those things, too, but subordinate and not necessary.

3. Accepted but subordinate and not necessary.

4. Rejected. (Her motivation was not established by the evidence.)

5. Accepted but subordinate and not necessary.

6. Rejected as contrary to facts found that they asked to "back up" or that she explained the "U-turn" policy. (She said they could not turn around or back up and that they had to pay the toll.) Otherwise, accepted and incorporated.

11.-15. Accepted but subordinate and not necessary.

1. Last sentence, rejected as contrary to the greater weight of the evidence. (The Respondent thought it was Evelyn Campbell because that was the name she had on her paperwork and she thought the driver was Campbell.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Rejected as contrary to the greater weight of the evidence. (Other City employees also assumed that Campbell was telephoning because her name was on the paperwork.)

3. Accepted and incorporated (although Campbell did speak to City personnel at some point in the process.)

19.-21. Rejected that they were lying. They may have been confused. It is believed, as found, that Kressl began to sign her own name, saw that the form required her mother's signature, and signed her mother's name (contributing to the Respondent's confusion who was who), but it is possible that she passed the form to her mother to sign, unbeknownst to the Respondent (likewise contributing to the Respondent's confusion who was who.)

22. Accepted but subordinate and not necessary.

23.-24. Accepted and incorporated. (After crossing the Clearwater Pass Bridge from Sand Key to Clearwater Beach, they went over the bridge from Clearwater Beach to Clearwater.)

1. In part rejected as contrary to facts found (that they asked to back up); otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted but subordinate and not necessary.

3. Rejected as contrary to facts found and to the evidence.

4. Accepted but subordinate and not necessary.

COPIES FURNISHED:

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

P. O. Box 4748

Clearwater, Florida 34618-4748

J. Robert McCormack, Esquire Wiggins & McCormack

3040 Gulf-to-Bay Boulevard

Suite 100

Clearwater, Florida 34619

Michael Laursen Secretary

City of Clearwater Civil Service Board

P. O. Box 4748

Clearwater, Florida 34618-4748

Docket for Case No: 94-001363

Orders for Case No: 94-001363