STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CAPE CORAL, )

)

Petitioner, )

)

vs. ) Case No. 97-4800

)

GARY W. HAYES, )

)

Respondent. )

)

FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Cape Coral, Florida, on December 1, 1997.

APPEARANCES

For Petitioner: Marilyn W. Miller

Assistant City Attorney Office of The City Attorney City of Cape Coral

Post Office Box 150027

Cape Coral, Florida 33915-0027

For Respondent: Gary W. Hayes, pro se

4815 Southwest 2d Avenue Cape Coral, Florida 33914

STATEMENT OF THE ISSUE

The issue is whether Respondent, in the performance of his duties as a city employee, used city property negligently or without authorization and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By letter dated July 14, 1997, Petitioner gave Respondent Final Notice of Disciplinary Action, pursuant to Article

1. of City Ordinance 50-94. The letter alleges that Respondent did not follow proper procedures in using city equipment that he later negligently damaged. The letter advises Respondent that he is suspended for three working days without pay, and he has a right to an internal appeal.

   Following an internal appeal, Petitioner advised Respondent, by letter dated September 8, 1997, that he would be suspended only one day without pay. The City Manager, who signed the letter, found that Respondent “may have secured advance permission” from some supervisors to use city equipment, but “did not follow the proper departmental procedures for borrowing the equipment and misrepresented [his] intended use when requesting approval to use the equipment.” The City Manager added that he was disturbed by Respondent’s assertion that he was not familiar with the equipment, for which he had received no training, despite the fact that he holds a position as an Equipment Operator II. The City Manager effectively charged Respondent with negligence in using the equipment and failure to advise his immediate supervisor of damage to the equipment. The letter informs Respondent that he has a right to an arbitration hearing.

   Respondent timely demanded a hearing. Pursuant to a contract between Petitioner and the Division of Administrative Hearings, an administrative law judge conducted the hearing.

   At the hearing, Petitioner called five witnesses and offered into evidence 15 exhibits. Respondent called three witnesses and offered into evidence nine exhibits. The parties introduced two joint exhibits. All exhibits were admitted.

   The parties did not order a transcript. With the consent of Respondent, Petitioner tape-recorded the hearing and kept the tapes in its possession at the conclusion of the hearing.

   FINDINGS OF FACT

   
   

   1. Respondent is employed by Petitioner as an Equipment Operator II in the Parks and Recreation Department. Respondent has worked for Petitioner for several years.

   2. Respondent’s supervisor, Rick Schill, has been a supervisor for 13 years. He has supervised Respondent for three years.

   3. In late March 1997, Mr. Schill directed Respondent to work in Eco Park. Eco Park is a natural area owned by Petitioner that was overgrown with vegetation, especially Brazilian Pepper trees.

   4. Petitioner had received a grant of over $400,000 that required, among other things, that it remove all exotic vegetation, such as Brazilian Pepper, from Eco Park by

      December 1997. Around the end of February 1997, Mr. Schill had asked Bob Taylor, a supervisor in the Streets Department, to remove the Brazilian Peppers, but the Streets Department did not commence the work when agreed. Mr. Schill was anxious that the work proceed without delay because it partly depended on chemical treatment, which could not be undertaken once the rainy season started.

   5. Removing mature Brazilian Pepper trees is difficult, particularly when the trees have grown in dense tangles, as they had done at Eco Park. Several years ago, Petitioner removed Brazilian Pepper trees from the Northgate area. A current city employee who worked on the Northgate project testified that the Brazilian Pepper is like barbed wire and can easily slash brake and hydraulic lines and tires. Attacking rooted masses of five or six gnarled trunks of 8-10 inches each in diameter at the base, this employee, using similar equipment to what Respondent used in this case, also smashed headlights, twice popped-off windshields, and frequently got the equipment stuck. He also explained that the root rakes that Petitioner has since purchased do not help tear out the trees easier; they only eliminate the dirt.

   6. A threshold problem in this case is the unsuitability of Petitioner's equipment to remove Brazilian Pepper in difficult terrain, especially when the vegetation has been allowed to mature to the extent that the vegetation had at Eco

      Park. A bulldozer is the most suitable equipment for tree removal under these circumstances, but Petitioner does not own a bulldozer. Petitioner has previously rented a bulldozer for such jobs, as at Mariner High School, but refused Respondent's request that it rent one for the Eco Park job.

   7. Respondent began the Eco Park job with a 580 backhoe that he borrowed from the Streets Department. After a couple of days, possibly devoted to preliminary trash removal, Respondent returned the 580 backhoe and asked Bob Taylor, a supervisor in the Streets Department, if he could borrow the department’s larger Case W-20 front-end loader.

   8. Respondent believes that Mr. Taylor mistakenly authorized Respondent to take the W-20 belonging to the Stormwater Department. Mr. Taylor testified that he told Respondent that the W-20 was unavailable because it was clearing Brazilian Pepper trees elsewhere.

   9. The Streets and Stormwater departments stored their heavy-duty equipment in the same yard. The Stormwater Department had Petitioner's only other W-20 front-end loader, which was in the yard when Respondent was finished with the

      580 backhoe.

      
      

   10. Petitioner has not proved that Respondent took the Stormwater Department’s W-20 without anyone’s permission. Two facts militate against a finding of unauthorized removal of the W-20 by Respondent. First, nothing in the record suggests

       why Respondent would steal city equipment to do city work. Second, after failing to get a bulldozer, Respondent was sufficiently wary of being held responsible for damage to city equipment that he insisted on a witness at Eco Park, so it is unlikely that, given such caution at the possibility of equipment damage, he would take the W-20 without permission.

       In any event, Respondent took the Stormwater Department’s W-20 front-end loader to Eco Park.

   11. On March 27, 1997, while Respondent was operating the W-20 removing Brazilian Peppers, a branch, trunk, or stump pierced the tire, and Respondent got the machine stuck in a marshy area of the park. A few days later, after the flat had been repaired, Respondent severed a hydraulic line, broke the windshield, and possibly broke a headlight.

   12. Respondent next borrowed a Case 621 loader from the Stormwater Department. Respondent got the Case 621 stuck in the muck and borrowed a Trojan to try to free the Case 621. In doing so, Respondent damaged the engine cover on the Case 621 and damaged its hydraulic lines.

   13. Petitioner has failed to prove that Respondent operated any city equipment negligently, without authorization, or in violation of uniformly enforced procedures concerning use or authorization. Whenever the equipment was damaged, Respondent promptly notified Mr. Schill

       or Fleet Department personnel, who were responsible for equipment repairs and maintenance.

   14. At all times, Respondent used the equipment in the scope and course of his employment--specifically, his assignment to remove Brazilian Peppers from Eco Park. The damage was most directly caused by the failure of Petitioner to rent the bulldozer requested by Respondent.

       CONCLUSIONS OF LAW

       
       

   15. Pursuant to Article 8.C of Ordinance 50-94 and a contract between Petitioner and the Division of Administrative Hearings, the Division has jurisdiction to enter a final order in this matter.

   16. Articles 8.E.5 and 8.E.7 of Ordinance 50-94 provide that Petitioner has the burden of proving by a preponderance of the evidence that the proposed discipline is for “just cause.”

   17. Article 7 authorizes discipline for “negligent . . . damage to City property” and “[u]nauthorized use of City . . . property . . . or equipment.”

   18. Petitioner has failed to prove any basis for disciplining Respondent in this case.

ORDER

It is

ORDERED that the charges against Respondent are dismissed.

DONE AND ENTERED this 30th day of December, 1997, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1997.

COPIES FURNISHED:

Marilyn W. Miller Assistant City Attorney

Office of The City Attorney City of Cape Coral

Post Office Box 150027

Cape Coral, Florida 33915-0027

Gary W. Hayes

4815 Southwest 2nd Avenue Cape Coral, Florida 33914

S. W. Daignault City Manager

City of Cape Coral Post Office Box 150027

Cape Coral, Florida 33915-0027

NOTICE OF RIGHT OF JUDICIAL REVIEW

Article VIII.E.9 of City Ordinance 50-94 provides that any party who is adversely affected by this final order may apply to the local circuit court for judicial relief within thirty

(30) days after rendition of the final order by filing a petition for writ of certiorari.

Docket for Case No: 97-004800

Orders for Case No: 97-004800