STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLAGLER ESTATES ROAD ) AND WATER CONTROL DISTRICT, )
)
Petitioner, )
)
vs. ) CASE NO. 95-0430
)
WENDY UNDERWOOD, )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on June 26 and 27, 1995, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Palatka, Florida.
Charles C. Adams was the Hearing Officer.
APPEARANCES
For Petitioner: Linda S. Calvert Hanson, Esquire
Law Offices of Linda Calvert Hanson
24 Northwest 33rd Court, Suite A Gainesville, Florida 32607
and
J. Michael Davis, Esquire
Law Offices of J. Michael Davis, P.A.
24 Northwest 33rd Court, Suite A Gainesville, Florida 32607
For Respondent: Geoffrey B. Dobson, Esquire
Law Offices of Dobson and Brown, P.A.
66 Cuna Street
St. Augustine, Florida 32084 STATEMENT OF ISSUES
By this action, Petitioner (the District) intends to terminate Respondent (Ms. Underwood) from her employment. The basis for the proposed action is set forth in the charge letter dated January 13, 1995. As grounds, the District accuses Ms. Underwood of:
a. Failure to properly perform her duties of safety and care for the records of Flagler Estates Road and Water Control District including but not limited to:
Failure to make copies of all original minutes and file them in a fireproof cabinet as required by instructions of June 21, 1994.
Failure to make copies of the minutes for public inspection as required by instructions of June 21, 1994.
Failure to update files as required by instructions of June 21, 1994.
Failure to make room in the fireproof safe for tape recordings of district board meetings as required by instructions of June 21, 1994.
Failure to organize the documents needed to compile the Book of Records as required by instructions of June 21, 1994.
Repeated instances of leaving work early for lunch and returning late for work after lunch. There were other instances of her reporting late for work. This delinquency is compounded by her failure to correct her time records to properly reflect her compensable time.
Failure to timely report to the Department of Environmental Regulation that there was an April publication oversight.
PRELIMINARY STATEMENT
The charge letter allowed Ms. Underwood 21 days to request a hearing before the Board of Supervisors of the Flagler Estates Road and Water Control District. The charge letter was dated January 13, 1995. Ms. Underwood petitioned for a hearing on January 18, 1995.
In her petition Ms. Underwood asked that the hearing be conducted pursuant to Section 120.57, Florida Statutes; that a hearing officer assigned by the Division of Administrative Hearings be assigned for the purpose of holding the hearing; that she be reinstated to her position of former employment; that she be granted back pay, and that she be granted reasonable attorney's fees.
On January 27, 1995, the District forwarded the case to the Division of Administrative Hearings for assignment of a hearing officer. This led to the final hearing on the dates previously mentioned.
The District moved for summary judgment based upon language which is set forth in Section 298.21, Florida Statutes, where it states:
The Board of Supervisors may at anytime remove any officer, attorney, chief engineer, or other employee appointed or employed by said Board.
Based upon that language the District believed that Ms. Underwood could be discharged from her employment at anytime without recourse.
The motion for summary judgment was treated as a motion for summary recommended order. It was denied.
When the hearing commenced further discussion was held concerning Ms.
Underwood's rights to continue employment with the District and to protect her reputation against accusations that she had not fulfilled her obligations as the District's employee. It was decided that the case should proceed to hearing to consider the accusations and Ms. Underwood's employment rights.
The District presented Horace Freeman, Sr., Bobby Stewart, Michele Henson and Windy Underwood as witnesses. Ms. Underwood testified in her own behalf and called John Michael Traynor, Esquire, as a witness. The District's exhibits 1 through 30 were admitted. The District's exhibit no. 31 was denied admission.
Ms. Underwood's exhibits 1 through 3 were admitted.
Following the filing of the transcript, Ms. Underwood filed a proposed recommended order. The District did not submit a proposed recommended order. The fact finding proposed by Ms. Underwood is discussed in an appendix to the recommended order.
FINDINGS OF FACT
In a case before the Seventh Judicial Circuit, St. Johns County, Florida, Case No. 2154, the 16 Mile Creek Water Control District, a drainage district, was incorporated pursuant to provisions in Chapter 298, Florida Statutes.
Subsequently, in Special Act 87-502, the Florida legislature changed the name of 16 Mile Creek Water Control District to Flagler Estates Road and Water Control District. This special act became law without the governor's approval.
On December 3, 1990, the District employed Ms. Underwood. From that date until September 1, 1994, Ms. Underwood was employed as a part-time administrative secretary and at times served as secretary to the District governing board.
At various intervals Ms. Underwood's work performance was reviewed. The more recent evaluations were made on April 1, 1993 and October 20, 1993, in which the District through its supervisor found that Ms. Underwood met performance expectations in fulfilling her job.
On April 7, 1994, Horace Freeman, Sr. was placed on the District's Board of Supervisors. The Board of Supervisors was ultimately responsible for Ms. Underwood's employment with the District.
Freeman's principal concerns when taking office were related to procedures followed in the District's administrative office, accountability for equipment and proper utilization of manpower in the District.
At that time, Messrs. Martin and Cox were the other Board members. Mr. Martin was the Board President.
Mr. Freeman also believed that Chapter 298 required that the minutes be kept appropriately together with other important documents concerning the District's operations.
On June 18, 1994, Bobby Stewart was elected to the Board of Supervisors. He took Mr. Martin's position on the Board. Immediately following those events Mr. Freeman was elected Board President. Mr. Stewart became Secretary to the Board.
Mr. Cox's service on the Board included dates through September 15, 1994. He was replaced on an interim basis by Mr. Rousseau. In June, 1995, Mr. Rousseau was elected to fill the position that Mr. Cox had filled.
Upon taking office as Board President, Mr. Freeman placed Mr. Stewart in charge of the Board's administrative functions.
Mr. Freeman, as President was responsible for the overall District operations. In that capacity he instructed Mr. Stewart and Ms. Underwood to update the Board minutes.
Mr. Freeman was interested in establishing definite policies and procedures to be followed by the District. He believed that the policies and procedures that existed when he took office were not adequate.
When Mr. Freeman took office there was a personnel manual in effect that contained a limited number of instructions as to rights and opportunities for all citizens to be employed with the District; working hours; pay periods; holidays; paid leave; responsibilities of the foreman of the District, who is the day-to-day supervisor at the District; evaluation of employees, and the basis for modification of the personnel manual.
The manual made the foreman of the District responsible for interviewing, hiring, and terminating employees with the consent and approval of the Board of Supervisors. The foreman was expected to evaluate each employee of the District once every six months. These evaluations were to be presented to the Board of Supervisors on October 1 and April 1 of each year. The expectation was that the evaluations would be discussed with the employee before presentation to the Board and would be used as a tool to improve employee performance.
Before Mr. Freeman and Mr. Stewart took office as Board members, the April 1, 1994 evaluation for Ms. Underwood had not been conducted.
In the personnel manual under the heading "Modification of Personnel Manual", the Board reserved the right to make changes to the personnel manual by additions, deletions, or other modifications and to set forth supplemental regulations related to personnel and personnel policy.
Under the terms of the personnel manual in effect when Mr. Freeman and Mr. Stewart took office, the District working hours were 7 a.m. to 5:30 p.m., Monday through Thursday. District employees were given 1/2 hour for lunch period and a 15 minute break in the morning and a 15 minute break in the afternoon.
Concerning paid leave, employees who were employed for a period of six months accrued 40 hours of annual leave and 20 hours of sick leave. Beyond that initial six months period the employee would earn leave at the rate of 80 hours per year annual and sick leave at 40 hours per year, with sick leave not to exceed a maximum of 200 hours.
Ms. Underwood was an employee subject to the terms of the personnel manual that have been discussed.
In addition to the personnel manual, the District had a set of statements referred to as the "standardized employee requirements and expectations." This document was modified by Mr. Freeman. In pertinent part this set of requirements and expectations indicates that "excessive tardiness will not be tolerated." That document intimated that prior approval from the Board of Supervisors would be necessary if the employee intended to be late for work.
In March 1993 Ms. Underwood had been made aware of the provision concerning tardiness.
On June 20, 1994, a meeting was held between Mr. Freeman, Mr. Stewart and Ms. Underwood. At that meeting Mr. Freeman told Ms. Underwood that Mr. Stewart was assuming administrative duties for the Board. At times in the past Ms. Underwood had performed those duties as Board secretary. Under those past arrangements Ms. Underwood as Board secretary reported directly to the Board of Supervisors. Under the arrangements imposed by Mr. Freeman, Ms. Underwood would report to Mr. Stewart who in turn reported to the full Board.
In effect, Ms. Underwood was the secretary to Mr. Stewart who was the secretary to the Board.
When Mr. Stewart assumed his duties as Board Secretary, Ms. Underwood was not working in that capacity. At that time Ms. Underwood was the administrative secretary in the District office.
At the June 20, 1994 meeting Mr. Freeman offered the opportunity for Ms. Underwood to become a full-time employee working 40 hours a week. Mr. Freeman also offered the opportunity to go from the District office to the City of Hastings for her lunch period, assuming her willingness to accept a one hour lunch period, given that the trip to Hastings and back to the District could not be made in 30 minutes. Mr. Freeman specifically told Ms. Underwood that she could not go to Hastings, get her lunch and come back to the District and eat her lunch. Ms. Underwood was left to consider the options to become a full-time employee and expand her lunch period.
Ms. Underwood was given a week to decide how much time she wished to work and what lunch hour she wished to use.
At the time the discussion was made concerning hours of work, Ms. Underwood was working four days, 32 hours a week.
By accepting the 40 hour work week she would be entitled to the benefits of a full time employee.
When the question of her work hours was brought to Ms. Underwood's attention again one week beyond the June 20, 1994 conversation, Ms. Underwood was not interested in changing her hours of employment or lunch period. Ms. Underwood was reminded that she would not be allowed to go to Hastings to get lunch and then drive back and still operate under the 30-minute lunch period. In summary, Ms. Underwood continued in her work day of 8 a.m. to 4:30 p.m., Monday through Thursday with 30 minutes for lunch.
On June 20, 1994, Mr. Freeman explained to Ms. Underwood that Mr. Stewart would be working and training in the District office on a daily basis. Ms. Underwood was told to show Mr. Stewart all the daily functions of the office, having in mind that Mr. Stewart would make a presentation to the full Board concerning any changes that were needed in the office operations.
In the June 20, 1994 meeting Mr. Freeman mentioned the need to update the District Book of Records. Mr. Freeman also mentioned the need to replace the cover to the Book of Records in that the old Book of Records referred to 16 Mile Creek instead of Flagler Estates Road and Water Control District. It was Mr. Freeman's intention to purchase a new binder with a correct title.
In particular, Mr. Freeman discussed the need to organize the documents necessary to compile the Book of Records for the District. Ms. Underwood never started this task. Mr. Freeman reminded Ms. Underwood once a week to accomplish the organization of documents for compiling the Book of Records. In the beginning, during the weekly discussions, Ms. Underwood would tell Mr. Freeman that the project to organize documents necessary for the book of records had begun. Then Ms. Underwood told Mr. Freeman that the work had been completed. These remarks to Mr. Freeman concerning the completion of that task were made at a Board meeting in August, 1994.
In this conversation Mr. Stewart was there to observe and not comment.
On the June 20, 1994 date, a written document was produced and discussed. It was directed to Ms. Underwood and read to her. Ms. Underwood protested that this arrangement in which Mr. Stewart sat there while Mr. Freeman read the document was in violation of her rights. Ms. Underwood stated that Mr. Freeman had no right talking to her as an employee with another supervisor in the office. Mr. Freeman stated that Mr. Stewart was not there to make comments, rather Mr. Stewart has been brought into the room so that he would be aware of what Mr. Freeman was presenting to Ms. Underwood. If Ms. Underwood questioned Mr. Freeman concerning the discussion, then Mr. Stewart would be aware of those topics.
When the June 20, 1994 document was presented to Ms. Underwood she did not question its substance.
In the June 20, 1994 document presented to Ms. Underwood, Ms. Underwood was told that she was to report directly to the Secretary of the Board, Mr. Stewart. She was told that she was responsible for the daily secretarial duties associated with the administrative affairs of the District Office and matters directed by the Board of Supervisors. Her working hours and lunch period were not filled in pending her decision. Those working hours and lunch period, once the decision was made, would be complied with unless the President or Secretary of the Board instructed Ms. Underwood otherwise.
The written document told Ms. Underwood that Mr. Stewart would be working/training in the Office on a daily basis and that she should show Mr. Stewart all functions and daily procedures. Those procedures were to be recorded by Mr. Stewart and that information would be forwarded to the Board of Supervisors for review and establishment of new written procedures to be used by the District.
Through discussion and through the document presented to Ms. Underwood, Ms. Underwood was made aware that accounts payable would be placed in chronological order.
Ms. Underwood was told through the written document that all forms being used by the District would be reviewed for update and change by July 7, 1994. Moreover, the book of records would be updated and assembled to meet the guidelines in Chapter 298 and the Florida Administrative Code by July 7, 1994.
On the week following June 20, 1994, Mr. Freeman reminded Ms. Underwood that the verbatim tapes of meetings and workshops conducted by the Board had not been removed from the floor and placed in the fireproof cabinet as he had told Ms. Underwood to do on June 20, 1994. When Mr. Freeman made his comments on the week following June 20, 1994, Ms. Underwood said that there was
no room in the fireproof cabinet. She wanted to know what she was supposed to do to deal with the lack of space in the cabinet. Mr. Freeman told her to keep documents in the fireproof cabinet going back about 5 years and remove the documents older than 5 years and put them in regular cabinets that were not fireproof. Mr. Freeman explained that the tapes of the meetings were more important than some of the documents that were in the file cabinet.
These tapes were official records of the District and needed to be protected against destruction. The tapes were in a box sitting on the floor. The dates of the tapes went back several years.
In the discussion which Mr. Freeman had with Ms. Underwood about a week after the June 20, 1994 meeting, Mr. Freeman also told Ms. Underwood that she needed to take some of the old records out of the fireproof cabinet, because those records in the cabinet needed to be "straightened out", as well as providing space to protect the tapes.
On July 7, 1994, at a Board meeting, Mr. Freeman discussed the employee work assignments for the District, to include Ms. Underwood. At that meeting the employees were presented with a memo concerning work assignments. In addition rules and directives were discussed and a document prepared and provided to the employees concerning rules and directives for employees.
The document concerning rules and directives reminded the employees that the administrative office was the responsibility of Mr. Stewart as Board Secretary and Ms. Underwood as secretary to Mr. Stewart. The administrative office, in accordance with this memorandum, was responsible for, among other things, legal records, contracts, bids, materials requested, warrants, and the Book of Records.
The rules and directives which pertain to Ms. Underwood and other employees, and about which Ms. Underwood was made aware, indicated that District employees would not leave the District grounds during work hours without the knowledge and approval of the Board or its designee.
Employees were made aware that violation of rules and standards set forth by the District Board would result in disciplinary action, including the possibility of termination.
The employees did not question the contents in the July 7, 1994 memorandum concerning rules and directives while in attendance at the July 7, 1994 meeting.
Mr. Freeman gave verbal instructions to Ms. Underwood about compiling the minutes of the District commencing in 1971 and continuing into the future. Mr. Freeman told Ms. Underwood once a week for several weeks and at Board meetings that the minutes needed to be compiled. This work was not done until January 15, 1995, following Ms. Underwood's departure from the District. In particular, Ms. Underwood was expected to compile the original minutes and place them in a book that was already in existence. Ms. Underwood did not do this.
The minutes were to have been copied between June 20 and July 7, 1994 and the originals placed in the fireproof cabinet. Copies were for purposes of public access. The minutes were not copied.
Mr. Freeman told Ms. Underwood on a weekly basis, commencing June 20, 1994, to make copies of the original minutes and then place the originals in a
fireproof cabinet. When Ms. Underwood would tell Mr. Freeman that there was not room in the cabinet to place the minutes, that is when Mr. Freeman told her to remove some of the older files and put them in another cabinet.
Later when room was made to place the original minutes in the fireproof cabinet, it took approximately 5 to 10 minutes to remove other items to make room.
Although Mr. Freeman told Ms. Underwood on June 20, 1994 and once a week beyond that date to make copies of the original minutes for public inspection, Ms. Underwood did not do this. The reasons which Ms. Underwood gave for not accomplishing this task that she did not have time or it would just take a little while. At one Board meeting Ms. Underwood told Mr. Freeman that the minutes had been copied and were up to date, when in fact they had not been. This occurred on the first Board meeting in August, 1994.
Ms. Underwood did not update the overall office files as required by instructions given on June 20, 1994.
Mr. Freeman recounts that Ms. Underwood had been told to update the District files concerning warrants, bills, and information about venders with whom the district did business. The District files had not been in order in the past. Ms. Underwood was instructed to get them in order and the Board allowed Ms. Underwood to use a previous color-code system for updating files, a numbering system or an alphabetical system.
Mr. Freeman expected Ms. Underwood to update the files as to vender accounts, warrants and bills, within 30 days from June 20, 1994.
Other files that needed to be updated, unassociated with vendor accounts, were to be concluded within a "short time" based upon a representation from Ms. Underwood to Mr. Freeman as to time needed to accomplish the task.
Mr. Freeman told Ms. Underwood that in cleaning out the fireproof cabinet that she could make room by taking out vendor information prior to the 1990's.
As described Mr. Freeman, commencing June 20, 1994, he instructed Ms. Underwood to put verbatim tapes of Board meetings in the fireproof cabinet. Mr. Freeman reminded Ms. Underwood to do this on a weekly basis. Ms. Underwood never moved the tapes from where they were located and into the fireproof cabinet.
Mr. Freeman observed Ms. Underwood entering the Lil' Champ in Hastings, Florida, to get her lunch. He made this observation on two occasions. On one occasion the observation was made at 1:10 p.m. Mr. Freeman consulted with Mr. Stewart and was told that Mr. Stewart had not given permission for Ms. Underwood to go to Hastings at lunch.
For the two occasions upon which Mr. Freeman saw Ms. Underwood in Hastings getting lunch, Ms. Underwood made no adjustment to her time records to reflect that she took longer than 30 minutes for her lunch period. Ms. Underwood was obligated to make that adjustment to the time records.
Concerning the two occasions upon which Mr. Freeman had seen Ms. Underwood getting lunch at Hastings, this was subsequent to June 20, 1994, when
Ms. Underwood had been told that she could not go to lunch and bring the lunch back and eat at the District.
Ms. Underwood had not started the project of copying the original minutes for public inspection, replacing the original minutes in the fireproof cabinet, updating District files and making room in the fireproof cabinet for the verbatim tapes of Board meetings and workshops when Ms. Underwood was suspended on September 1, 1994.
On June 21, 1994, Mr. Stewart met Ms. Underwood. He told Ms. Underwood to make copies of the minutes and place the originals in the fireproof cabinet. He also told Ms. Underwood to take the verbatim tapes of Board meetings from the floor and put them in the fireproof cabinet. At that point, Ms. Underwood made no comment about the instruction concerning placing the tapes in the fireproof cabinet.
As Mr. Stewart clarified in his testimony the original minutes were in the fireproof cabinet and were to be returned to that cabinet once copies were made. The copies of the minutes were to be used to serve the public and need not be placed in the fireproof cabinet.
On June 21, 1994, Mr. Stewart told Ms. Underwood to update District files for the last five years and put earlier files in storage by placing the earlier files in a box and putting them upstairs after labeling the earlier files. This referred to placing the earlier files in an upstairs area to the District offices.
Later on, Ms. Underwood stated that there was not room in the fireproof cabinet. Mr. Stewart reminded Ms. Underwood that if the files for the work period earlier than the last five years were removed, then there would be room in the fireproof cabinet for the tapes.
On June 21, 1994, Mr. Stewart told Ms. Underwood that he wanted Ms. Underwood to compile the records to be placed in the Book of Records and to make copies of those original documents for a duplicate book of records.
In compiling the Book of Records, Ms. Underwood was to take into account the records of the supervisors who ran the District's daily operations.
The Book of Records includes transactions of the Board of Supervisors, minutes, legal documents, publications, and the accountant's report, together with any other record of the official business of the Board.
Following the June 21, 1994 conversation, Mr. Stewart came to the District office approximately every day. On these visits, Mr. Stewart would remind Ms. Underwood concerning the need to make the copies that were referred to on June 21, 1994.
From July 19 through July 29, 1994, Ms. Underwood missed work due to illness.
After Ms. Underwood's return to work from her illness, Mr. Stewart made mention about making the copies that were discussed with her on other occasions.
Ms. Underwood never began the project for organizing the Book of Records and making copies for a duplicate Book of Records. This failure was
discussed with Ms. Underwood on several occasions, to include the date upon which Mr. Stewart decided to recommend to the Board that Ms. Underwood be suspended.
Ms. Underwood did not make any progress in updating the files, as required by Mr. Stewart. Mr. Stewart examined the files and could not ascertain that the files had even been moved following his instructions to Ms. Underwood. What Mr. Stewart had in mind was that Ms. Underwood should remove from the fireproof cabinet miscellaneous items that did not need to be kept in the fireproof cabinet further back than five years. Ms. Underwood did not remove the miscellaneous documents from the fireproof cabinet and put them in storage, as instructed. Mr. Stewart told Ms. Underwood many times that Ms. Underwood should update the files.
On one occasion when Mr. Stewart discussed the need to update the files, Ms. Underwood commented that she had to start updating the files.
From Mr. Stewart's observation, which is accepted, Ms. Underwood had adequate time to attend her other duties and perform the tasks that he had assigned.
In April of 1994, the District made application to the Department of Environmental Protection (DEP) to replace culverts within the District's jurisdictional boundaries. In fact, what the District really intended was to take the culverts from one location and put them in another location without replacing them in the initial location. Contrary to requirements set forth by the DEP, the District failed to publish the proposed conditions for the permit issued by the DEP. Ms. Underwood was responsible to make the publication in accordance with requirements established by the DEP. Ms. Underwood failed to make the publication through oversight. The failure to publish was not reported to DEP.
Consequently, DEP contacted the District around July 1, 1994. Someone employed by the DEP spoke to Mr. Stewart and instructed Mr. Stewart to publish the permit terms in a newspaper which was well circulated in Flagler County, Florida. After that publication was made, the DEP employee told Mr. Stewart to take a copy of that publication out of the newspaper and attach it to a letter and send it to the DEP employee. After receiving that information, the DEP would close its file, thus, avoiding a possible $500.00 fine for noncompliance with the publication requirement. The DEP employee did not request Mr. Stewart to provide an affidavit of proof of publication from the newspaper in concluding the matter, which was the ordinary manner in which publication was proven.
In turn, Mr. Stewart had the permit notice published in the July 7, 1994 edition of a local newspaper. Mr. Stewart took the copy of that notice of publication and gave it to Ms. Underwood to put with a letter to be mailed to the DEP employee. Later Mr. Stewart observed the copy of the notice of publication on a pink pad located on Ms. Underwood's desk. Following his instructions to Ms. Underwood nothing had transpired for 26 days, when Mr. Stewart sent a copy of the publication of notice to the DEP on August 14, 1994. The newspaper publication which Mr. Stewart sent was a separate copy from the copy which he observed on Ms. Underwood's desk. Before mailing a copy of the newspaper publication on August 14, 1994, Mr. Stewart observed that the copy of the publication that had been on Ms. Underwood's desk still remained there.
When Mr. Stewart initially discussed the newspaper publication with Ms. Underwood, Ms. Underwood remarked that it did not have an affidavit from the
newspaper concerning proof of publication and that the affidavit would not be available until the publication notice had been paid for. Nonetheless, Mr.
Stewart explained to Ms. Underwood that the arrangement was one in which a copy of the notice of publication would be forwarded without an affidavit from the newspaper concerning proof of publication.
On August 22, 1994, in a conversation between Mr. Stewart and Ms. Underwood, Ms. Underwood stated that she had sent the notice of publication to the DEP. Ms. Underwood did not say when she had forwarded the proof of publication.
On August 29, 1994, Mr. Stewart notified Ms. Underwood that she was suspended. The grounds for the proposed suspension that Mr. Stewart intended to present to the Board of Supervisors included:
Failure to produce assigned work on time.
Failure to maintain files and important records.
Failure to respond to important agencies as requested.
Failure to maintain paperwork.
Failure to maintain accurate time records.
Reporting for work late.
Misleading information to Supervisors.
Failure to comply with assigned duties from the Board.
Negligence of duties.
Ms. Underwood was not presented with this list of alleged misconduct until a Board meeting on September 1, 1994, without discussion.
At the meeting of the Board of Supervisors held on September 1, 1994, Mr. Stewart moved and was seconded by Mr. Freeman to suspend Ms. Underwood until further discussion on September 15, 1994.
At the meeting the Ms. Underwood asked that she be paid her vacation pay that had accrued.
Mr. Stewart moved and Mr. Freeman seconded a motion to suspend Ms. Underwood without pay; however, a decision was made to pay Ms. Underwood one week of accrued vacation pay and that motion for vacation pay carried.
Ms. Underwood had worked for the district until the morning of August 29, 1994, when Mr. Stewart informed Ms. Underwood that she was suspended.
On September 9, 1994, Ms. Underwood's attorney, Geoffrey B. Dobson, wrote to Mr. Stewart asking that any hearing concerning the charges against the Ms. Underwood be postponed until the specifics of those charges against Ms. Underwood were provided in writing by the Board. The correspondence went on to specify the information which Ms. Underwood wished to obtain. The requests parallel the allegations that had been provided to Ms. Underwood on September 1, 1994.
On September 14, 1994, Mr. Stewart responded to Mr. Dobson's request by correspondence in which it was stated:
Pursuant to your request for specific written statement, I would like to respond as follows using numbers which correspond to your letter:
On June 21, 1994, Mrs. Underwood was given five (5) tasks that pertained to her job duties and the safety and care of records of Flagler Estates Road and Water Control District. These duties were to commence immediately. These duties were:
Make copies of all original minutes and file them in the fire proof cabinet. Make copies of copies for public information. As of August 22, 1994 this was never started.
On June 21, 1994, Mrs. Underwood was to update files, since files dated back ten (10) years and there was not room for recent files. As of August 22, 1994 this was never started.
Mrs. Underwood was to notify the Department of Environmental Regulations of an April publication oversight. On August 22, 1994, this was achieved twenty-six (26) days later.
Mrs. Underwood was instructed to maintain the fire proof cabinet so room could be made for meeting tapes that are on the office floor. On August 22, 1994 this was never started.
Mrs. Underwood was instructed to start organizing the documents and records needed to compile the Book of Records of the Supervisors for the Flagler Estates Road and Water Control District. On August 22, 1994 this was never started.
See paragraph 1(b) above.
See paragraph 1(c) above.
See paragraph 1(a) above.
Mrs. Underwood has often left her job early for lunch, which she gets ten miles away from her job or returns late from lunch. On a thirty minute lunch break she has often been late for
work, but her time records show she has been on time.
See paragraph 5 above.
See paragraph 1(c) above.
See paragraph 1(a), (b), (c), (d) and (e) above.
See paragraph 1(a), (b), (c), (d) and (e) above.
In response to Mr. Dobson's request, the September 14, 1994, correspondence from Mr. Stewart also indicated that any documents to be used in the Board's action against Ms. Underwood together with an employee handbook would be provided at the regular meeting to be conducted on September 15, 1994. In addition, the June 20, 1994, memorandum which had been provided to Ms. Underwood from Mr. Freeman was attached to the September 14, 1994, correspondence from Mr. Stewart. That letter from Mr. Stewart stated that the request by Ms. Underwood to postpone the hearing would be brought before the Board at the September 15, 1994, hearing.
Finally, Mr. Stewart in his correspondence indicated in response to Mr. Dobson's request, that the Board of Supervisors who had any involvement with
the allegations against Ms. Underwood be recused from considering the case on its merit, would be addressed at the September 15, 1994, meeting.
Reference in the September 14, 1994, correspondence from Mr. Stewart to Ms. Underwood's failure to achieve certain tasks by August 22, 1994, is a mistake. The date should be August 29, 1994.
Consequently, Mr. Stewart's position expressed in the September 14, 1994, correspondence wherein he described certain responsibilities by Ms. Underwood not being accomplished by August 22, 1994, should read August 29, 1994. With that correction Mr. Stewart's observation that the tasks had not been achieved is accepted.
Mr. Stewart established that the reference in the charges concerning documents needed to compile the Book of Records for limited purpose of copying those records commenced with the year 1971 forward. There was no necessity to organize the preexisting Book of Records, the records before Freeman and Stewart took office. Mr. Stewart placed no time limit on Ms. Underwood concerning the making of copies, but no effort was made by Ms. Underwood to make the copies before August 29, 1994, when Ms. Underwood was suspended.
Mr. Stewart observed that at times Ms. Underwood would leave for her lunch earlier than permissible or later than permissible and would not document those occasions.
A reference by Mr. Stewart to Ms. Underwood taking forty-five (45) minutes of undocumented time is related to being late for work, not related to the lunch period. Instead the forty-five (45) minutes for being late was when Ms. Underwood registered her child for school and did not reflect that she was missing forty-five (45) minutes from her work.
On one Thursday morning Mr. Stewart asked Ms. Underwood why she was late for work and she explained that she had been to pick up the payroll. It was not Ms. Underwood's obligation to pick up the payroll and Mr. Stewart had not been told that Ms. Underwood was picking up the payroll.
Concerning Ms. Underwood being twenty-five (25) minutes late when she picked up the payroll, the problem was not that Ms. Underwood picked the payroll up. The problem was that Ms. Underwood did not make Mr. Stewart aware that she was going to be late that morning. Prior to this occasion Mr. Stewart had not mentioned Ms. Underwood's activity concerning picking up the payroll. After this occasion Mr. Stewart said that he would bring the payroll to the District office.
Although Ms. Underwood was not obligated to pick up the payroll, before Mr. Freeman and Mr. Stewart took office as members of the Board of Supervisors, Ms. Underwood had customarily picked up the payroll and brought it to the District office.
Prior to Mr. Freeman and Mr. Stewart becoming members of the Board of Supervisors it had been the policy for Ms. Underwood to make bank deposits during business hours. When Mr. Stewart discovered that Ms. Underwood had made a bank deposit during business hours, Mr. Stewart told Ms. Underwood that he would make the deposits from that point forward. Although Ms. Underwood had been told that Mr. Stewart would make the deposits beyond that point, Ms. Underwood continued to make bank deposits during business hours. By his remarks Mr. Stewart made it evident that he would make bank deposits and Ms. Underwood
would not be allowed to make those deposits and there would be no necessity to determine the amounts of deposits as a means of deciding whether to spend the time to travel to Hastings to make the bank deposits. A one-way trip from the District office to the bank in Hastings takes a minimum of eighteen (18) minutes based on Mr. Stewart's observations.
It is not clear whether the instances in which the Ms. Underwood would leave early for lunch or arrive late from lunch were occasions upon which she was making the bank deposits before Mr. Stewart had told Ms. Underwood that she was not responsible for making those deposits.
On September 15, 1994, the Board considered Ms. Underwood's suspension. In that meeting the Board was represented by John Michael Traynor, Esquire. Ms. Underwood was represented by Ronald W. Brown, Esquire.
At the September 15, 1994, meeting, arrangements were made to allow counsel for Ms. Underwood to inspect any documents that might be relied upon by the District in a future meeting that was convened to consider the allegations against Ms. Underwood. The meeting to consider those allegations would be convened upon thirty (30) days notice from the Board to Ms. Underwood.
No further action was taken concerning the suspension.
On October 31, 1994, attorney, Linda S. Calvert Hanson, who had become the District's counsel, wrote to Mr. Dobson, Ms. Underwood's attorney. In that correspondence Ms. Hanson makes reference to the September 9, 1994, letter from Mr. Dobson that has been discussed and disposition of Ms. Underwood's petition for hearing. That petition had requested that the hearing be conducted in accordance with Section 120.57, Florida Statutes.
On November 3, 1994, Mr. Dobson replied to the Hanson correspondence dated October 31, 1994. Dobson's correspondence questioned the validity of the Board of Supervisors' action to suspend Ms. Underwood. It also referred to the belief that the statutory time limits for referring the Ms. Underwood's case to the Division of Administrative Hearings had expired. The correspondence referred to the belief that Ms. Underwood had been denied rights to procedural due process. The letter described the Ms. Underwood's status as being one of termination. The correspondence referred to perceived prejudice against Ms. Underwood by Messrs. Freeman and Stewart. Finally, the correspondence requested an amicable solution to Ms. Underwood's case before the Board.
The November 3, 1994, correspondence for Mr. Dobson was responded to by Ms. Hanson on November 8, 1994; in that letter Ms. Hanson took issue with the characterization of Ms. Underwood's status as being terminated. Ms. Hanson was persuaded that Ms. Underwood's status was one of suspension. The letter refers to Ms. Hanson's belief that some informal negotiations had been pursued between the District and Ms. Underwood. Ms. Hanson referred to the impression that the suspension hearing would not proceed until Mr. Traynor, the former Board attorney, had instructed the Board to set the matter. The correspondence refers to the belief that Mr. Traynor had never given that instruction. In summary, Ms. Hanson expressed the belief that the time for affording a hearing consistent with Section 120.57, Florida Statutes had not expired, given the attempts at informal resolution.
The November 8, 1994, correspondence also stated that the Board held the opinion that it could consider the case in lieu of appointment of a hearing officer from the Division of Administrative Hearings. Finally, the
correspondence invited Mr. Dobson to consult with his client concerning the matters and to contact Ms. Hanson following that consultation.
On January 5, 1995, a report by the District's attorney was made concerning Ms. Underwood's status. It stated:
Inasmuch as there has been no response to my letter to Brown of November 8, regarding Ms. Underwood's suspension and the fact that she appears to be employed elsewhere, I recommend that the Board terminate her employment. Attached is a draft letter of termination to be sent to Mr. Brown,
her attorney for your approval and signatures.
Consistent with the attorney's report, Mr. Stewart, upon motion seconded by Mr. Rosseau, moved to terminate Ms. Underwood's employment with the District. The motion carried.
Ms. Underwood was not notified of the meeting on January 5, 1995, in which the decision was made to terminate her employment with the District.
On January 13, 1995, Ms. Hanson sent a charge letter to Mr. Brown setting forth the basis for the termination:
Please be advised that at the January 5, 1995 meeting of the Board of Supervisors a resolution was passed to terminate Ms. Underwood's employment effective immediately for the following reasons:
Failure to properly perform her duties of safety and care for the records of Flagler Estates Road and Water Control District including but not limited to:
Failure to make copies of all original minutes and file them in a fire proof cabinet as required by instructions of June 21, 1994.
Failure to make copies of the minutes for public inspection as required by instructions of June 21, 1994.
Failure to update files as required by instructions of June 21, 1994.
Failure to make room in the fireproof safe for tape recordings of district board meetings as instructed on June 21, 1994.
Failure to organize the documents needed to compile the Book of Records as instructed on June 21, 1994.
Repeated instances of leaving work early for lunch and returning late for work after lunch. There were other instances of her reporting late for work. This delinquency is compounded by her failure to correct her time records to properly reflect her compensable time.
Failure to timely report to the Department of Environmental Regulation that there was an April publication oversight.
In view of the above circumstances, it is the decision of the board that Ms. Underwood has
failed to satisfactorily perform her duties and should be terminated from employment for the Flagler Estates Road and Water Control District.
Pursuant to the District Rules of Procedure, Ms. Underwood has twenty-one (21) days in which to request a hearing on her termination before the Board of Supervisors for Flagler Estates Road and Water Control District.
This letter is sent directly to you as her representative, based upon your letter dated September 9, 1994 giving notice of representation. Although you have not responded to my correspondence of November 9, 1994 concerning the status of Ms.
Underwood, I have no notice that your representation has terminated. I trust you will convey the contents of this letter to Ms. Underwood. If you are no longer representing Ms. Underwood, please advise so that I may contact her directly.
On January 18, 1995, Mr. Dobson responded to the charge letter by petitioning for a hearing. In that petition he claimed that Ms. Underwood's procedural and substantive due process rights had been violated by the District through a suspension without hearing, termination without hearing, and action taken by persons not disinterested and unbiased. Mr. Dobson asked that the Ms. Underwood be provided a Section 120.57, Florida Statutes hearing as a person affected by the District's proposed action. Further, Ms. Underwood asked that the case be held before a disinterested hearing officer assigned by the Division of Administrative Hearings, and that through this process Ms. Underwood be reinstated with back pay and granted reasonable attorney's fees.
On January 27, 1995, Ms. Hanson requested the Director of the Division of Administrative Hearings assign a hearing officer to conduct a formal hearing. That request was granted.
On September 9, 1994, Michele Henson was hired as a temporary secretary to fulfill the duties that Ms. Underwood had performed in the past.
Ms. Henson's position as district secretary was made permanent on December 15, 1994.
In the permanent position Ms. Henson is entitled to medical benefits and to retirement benefits after three (3) years of service.
Ms. Henson presently works an eight (8) hour day, Monday through Thursday each week.
Ms. Henson spent four (4) days copying the originals minutes. The minutes were copied from 1971 into 1995.
Ms. Henson made copies of the documents in the Book of Records and placed them in a book separate from the book containing the originals. It took Ms. Henson four (4) days to copy the originals in the Book of Records.
Ms. Henson's efforts produced copies from the Books of Records from 1971 into 1995.
Ms. Underwood admits that she did not make room in the fireproof cabinet to place the verbatim tapes as Mr. Stewart requested.
Ms. Underwood indicates that she sent a copy of the newspaper publication concerning the District's request for permit from the DEP, however, Ms. Underwood indicated the newspaper publication sat on her desk for probably around three weeks or so before she dispatched the newspaper publication. Ms. Underwood testified that she sent the newspaper publication with a letter. Her testimony concerning the letter and the newspaper publication is unrefuted and is accepted.
Ms. Underwood was not aware that the District might be assessed a fine for failure to publish notice attending a permit request.
Ms. Underwood admits that she did not make copies of the original minutes.
Ms. Underwood states that she did not organize documents necessary to compile the Book of Records. Her reason was that no one told her what they wanted done. Ms. Underwood states that she had asked on several different occasions to discuss the matter with Mr. Stewart. Her claim that no one had explained the manner in which she was to address to the Book of Records is rejected.
Ms. Underwood's assertion that she was never given guidance concerning what was to be removed from the fireproof filing cabinet to make room for the verbatim tapes is rejected.
Ms. Underwood admits that she was asked to make copies of original documents so that the originals themselves would be protected.
Ms. Underwood acknowledges that she did not start making copies of the Book of Records. The reason given for not doing so was because she was not sure what she was supposed to do. Ms. Underwood's claim that she had not been instructed concerning that issue is rejected.
Ms. Underwood's assertion that she had been told to make copies of the minutes from June 1994 forward is rejected. In any event, Ms. Underwood had not made copies of the minutes from June, 1994 forward either.
Ms. Underwood indicated that she would be late 10 to 15 minutes on Thursdays when she picked up checks for the District.
Ms. Underwood's testimony that she had permission to be late for work when she registered her child is accepted. That permission was given by Mr. Stewart.
Ms. Underwood recognized the necessity to advise the supervisor when she was going to be late. Her testimony that she would call a supervisor and get permission when she was late is accepted only as found in Paragraph 132, above.
Ms. Underwood acknowledges that her lunch hour for the time period in question was one-half hour.
In Ms. Underwood's experience, it took twenty to thirty minutes for a one-way trip to Hastings.
Ms. Underwood acknowledged that she would go to lunch in Hastings after Mr. Stewart and Mr. Freeman came on the Board. Those lunch trips were when Ms. Underwood would make a bank deposit or would mail something that she felt needed to be mailed. These trips were normally made on Thursday following Board meetings.
Ms. Underwood went to Hastings for lunch after Board meetings on Thursday twice a month.
On Thursdays when Ms. Underwood would go and get lunch she would bring her lunch back to the District.
As Ms. Underwood describes, at times she would go late to lunch when waiting on a District customer. In these instances, Ms. Underwood did not claim extra time for her employment.
Ms. Underwood acknowledges that she participated in a meeting with Mr. Freeman on June 20, 1994. Moreover, she acknowledges that working hours were a matter of concern by the Board and that the employees had been instructed not to leave the District during working hours. Her response to those instructions as they would pertain to trips to Hastings to make bank deposits or for mailing, was that this was something she had always done and she just carried it over.
Ms. Underwood also acknowledges the guidelines that were provided on July 7, 1994, concerning her employment. Nonetheless, Ms. Underwood believes that when she made a bank deposit or mailings she was right to do that on District time. Her perception concerning the opportunity to continue the practice of making bank deposits and mailings on District time is contrary to District policy and unacceptable.
On October 20, 1994, Ms. Underwood began work with the Association for Retarded Citizens of Putnam County at the rate of $6.50 per hour. She worked 24 hours a week through May of 1995. After that time she has worked 32 hours a week. This is in contrast to the 30 hours per week with the District, where she had sick pay, vacation pay, and the right to voluntary participation in a retirement plan through an IRA. Her work with Association for Retarded Citizens of Putnam County allows sick pay and vacation pay but no retirement.
Ms. Underwood received a gross salary of $190.80 a week for 30 hours, EIC and insurance when employed with the District.
Other than in instances described Ms. Underwood had performed her duties with the District in an acceptable manner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this case pursuant to Section 120.57(1), Florida Statutes.
The District is a state agency defined within Section 120.52(1)(b), Florida Statutes. It has that status based upon Chapter 298, Florida Statutes.
Section 298.21, Florida Statutes, provides:
The Board of Supervisors may at anytime remove officer, attorney, chief engineer, or other employee appointed or employed by said Board.
This language does not create the opportunity for the Board of Supervisors to dismiss Ms. Underwood without cause. Although this provision does not contemplate that Ms. Underwood has tenure rights, she is entitled to be informed concerning the basis for her dismissal and to defend against those accusations. This opportunity is necessary to comply with Ms. Underwood's due process rights.
Here Ms. Underwood was informed of the charges and granted an ample opportunity to defend and did defend herself in a de novo hearing. In this setting, the District bears the burden to establish the facts supporting its proposed dismissal. See Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
The District has meet it's burden based upon the facts found as they relate to the allegations set forth in the charge letter, it is, therefore:
RECOMMENDED:
That a final order be entered terminating Ms. Underwood's employment with the District without further benefits.
DONE and ENTERED this 19th day of September, 1995, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 19th day of September, 1995.
APPENDIX
The following discussion is given concerning Ms. Underwood's proposed fact finding:
Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is contrary to facts found.
Paragraphs 11 and 12 are not necessary to the resolution of the dispute.
Paragraph 13 is rejected in the suggestion that the practice of picking up the payroll was condoned.
Paragraph 14 is rejected in its suggestion that the practice of making bank deposits and mailing in Hastings was condoned.
Paragraph 15 is subordinate to facts found.
Paragraph 16 is subordinate to facts found in the first sentence and first phrase to the second sentence. Otherwise, it is not necessary to the resolution of the dispute.
Paragraph 17 is subordinate to facts found in the first sentence. The second sentence is not necessary to the resolution of the dispute.
Paragraphs 18 and 19 are subordinate to facts found.
COPIES FURNISHED:
Linda Calvert Hanson, Esquire Suite A
24 N.W. 33rd Court Gainesville, FL 32607
J. Michael Davis, Esquire Suite A
24 Northwest 33rd Court Gainesville, FL 32607
Geoffrey B. Dobson, Esquire
Law Offices of Dobson and Brown, P.A.
66 Cuna Street
St. Augustine, FL 32084
Horace A. Freeman, Sr. Board of Supervisors
Flagler Estates Road and Water Control District
c/o Linda Calvert Hanson, Esquire Suite A
24 N.W. 33rd Court Gainesville, FL 32607
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.
| Issue Date | Proceedings |
|---|---|
| Dec. 26, 1995 | Final Order filed. |
| Nov. 15, 1995 | CC: to Linda Calvert Hanson from Geoffery Dobson (RE: request for final order) filed. |
| Sep. 19, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 06/26-27/95. |
| Jul. 27, 1995 | Recommended Order of Wendy Underwood filed. |
| Jul. 17, 1995 | (Volume I Thru IV) Tagged Transcript filed. |
| Jun. 26, 1995 | CASE STATUS: Hearing Held. |
| Jun. 20, 1995 | Order sent out. (motion denied) |
| Jun. 12, 1995 | (Joint) Prehearing Stipulation w/cover filed. |
| Jun. 08, 1995 | (Petitioner) Prehearing Stipulation w/cover filed. |
| Jun. 01, 1995 | Respondent's Motion for Summary Judgment filed. |
| May 03, 1995 | (Geoffrey B. Dobson) Notice of Service of Answers to Interrogatories w/cover filed. |
| Apr. 19, 1995 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 10:00am on June 26 and at 9:00am on June 27, 1995; Palatka) |
| Apr. 19, 1995 | Order of Prehearing Instructions sent out. |
| Apr. 13, 1995 | (Joint) Stipulation for Prehearing Conference And for Rescheduling of Hearing filed. |
| Mar. 28, 1995 | Notice of Service of Respondent`s First Interrogatories to Petitioner filed. |
| Mar. 14, 1995 | Notice of Hearing sent out. (hearing set for April 24 and 28, 1995; 10:00am; Palatka) |
| Mar. 03, 1995 | (Petitioner) Notice of Taking Deposition filed. |
| Feb. 13, 1995 | Joint Response to Initial Order w/cover filed. |
| Feb. 03, 1995 | Initial Order issued. |
| Jan. 30, 1995 | Agency referral ; Petition for Hearing; Agency Action filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 21, 1995 | Agency Final Order | |
| Sep. 19, 1995 | Recommended Order | Employee failed to follow instructions from supervisior and was dismissed following a due process hearing. |
