STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SAFETY HARBOR,

Petitioner,

vs.

CHRISTOPHER ALEXANDER,

Respondent.

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) Case No. 04-2398

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 5, 2004, in Safety Harbor, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alan S. Zimmet, Esquire

Zimmet, Unice, Salzman, Heyman & Jardine, P.A.

Post Office Box 15309 Clearwater, Florida 33766

For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent.

PRELIMINARY STATEMENT

By letter dated June 14, 2004, Petitioner, City of Safety Harbor (City), advised Respondent, Christopher Alexander (Alexander), that his employment with the City was terminated

effective June 14, 2004, for having four or more violations of the City's Code of Conduct in less than 18 months. Alexander appealed his termination, and the case was referred to the Division of Administrative Hearings to conduct a final hearing. The case was originally assigned to Administrative Law Judge William F. Quattlebaum, and was reassigned to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.

Alexander was provided written notice of the final hearing scheduled for October 5, 2004, commencing at 9:30 a.m.

Alexander failed to appear at the scheduled time. The undersigned delayed the commencement of the final hearing for

30 minutes to provide Alexander an opportunity to appear. He failed to appear for the final hearing and failed to contact the Division of Administrative Hearings concerning his failure to appear.

At the final hearing, the City called Grover Clyde Smith and William Charles Cropsey as its witnesses. Petitioner's Exhibits 1 through 8 were admitted in evidence.

No transcript of the hearing was filed. The City filed its proposed recommended order on October 7, 2004. Alexander did not file a proposed recommended order.

FINDINGS OF FACT

1. The City is a municipality located in Pinellas County, Florida.

2. Alexander was hired by the City on October 7, 2002, as a Service Worker in the Sanitation Division of the Public Works Department. He was a backup sanitation driver, working on residential collection routes.

3. Grover Smith (Smith), the City's Sanitation Supervisor, supervises 17 employees, including Alexander. He is responsible for the daily operations of the collection of solid waste by the City's Sanitation Division. Smith has worked for the City as a sanitation supervisor for five years and was employed in the City's Sanitation Department for 17 years prior to becoming a supervisor. His work experience includes driving a sanitation truck and being a crew leader in the Sanitation Division.

4. As an employee of the City, Alexander was subject to the City's Code of Conduct, which lists different groups of offenses for which City employees may be disciplined. The City's Code of conduct lists the following offense as a Group I offense:

   Tardiness, as defined as reporting late for work, overextending breaks or meal periods within one year of the first occurrence. Occurrences of tardiness shall only be considered for a year in applying progressive discipline. When determining the proper discipline go back only one year from the most recent occurrence and follow the progression of discipline as indicated. (Guide for determining tardiness: three times in any thirty (30) calendar day period, or six (6) times in any ninety (90)

   calendar day period or a continuous pattern of tardiness.

   
   

5. From May 12, 2003, through June 6, 2003, Alexander was tardy to work four times. On June 10, 2003, Smith issued a verbal warning to Alexander for his tardiness.

6. During November 2003, Alexander was tardy ten times.

   
   

   Smith issued Alexander a written warning on November 26, 2003, for his tardiness. Alexander was warned that any further violations would result in progressive disciplinary action up to and including termination.

7. The City's Code of Conduct provides that "[f]ailure to immediately report an accident or injury in which the employee is involved in while on the job" is a Group II offense for which a City employee may be disciplined. On December 9, 2003, Alexander struck a pine tree in a trailer park while driving a sanitation truck. Alexander did not immediately report the accident.

8. Smith learned of the accident from another employee on December 9, 2003. Smith questioned Alexander the same day about the accident, and Alexander denied hitting the tree. The next day Smith investigated the incident and found evidence that a pine tree in the trailer park had been struck and that there were remnants of the pine tree on the bumper of the right side of the sanitation truck that Alexander had been driving.

9. Smith again questioned Alexander, who continued to deny that he hit the tree. Only after two other employees who had been working with Alexander on the day of the accident admitted that the truck had struck the tree did Alexander admit that he had hit the pine tree. On December 16, 2003, Smith issued Alexander a written warning for failing to immediately report the accident.

10. From February 27, 2004, through March 22, 2004, Alexander was tardy four times. Alexander received a two-day suspension for this offense, which was in accordance with the guidelines of the City's Code of Conduct which provides for a one to three-day suspension for a third Group I offense.

11. The City's Code of Conduct provides that "[n]eglect or carelessness which results in a preventable accident" is a Group I offense for which a City employee may be disciplined.

    On May 20, 2004, Alexander, while driving a City sanitation truck, made a left turn and failed to swing wide enough, striking a series of mailboxes. The following day Alexander had another accident when he was backing a City sanitation truck down the street in a mobile home park and struck an awning on a mobile home. Both of these accidents occurred on the driver's side of the vehicle and could have been avoided if Alexander had been paying attention.

12. The City's Code of Conduct provides that a City employee may be discharged for a Group IV offense, which includes the following:

    Chronic offender of the Code of Conduct. (Guide: four (4) violations of any departmental or City rule or regulation in an eighteen (18) month period which results in a Verbal Warning or other disciplinary action (effective upon adoption of the revised Personnel Rules).

    
    

13. Smith recommended to Kurt Peters (Peters), the Director of Public Works for the City, that Alexander be suspended for five days. Peters consulted the City's Personnel Director, Bill Cropsey (Cropsey). Cropsey determined that Alexander was a chronic offender and could be discharged.

14. On June 9, 2004, Cropsey sent Alexander a letter advising him that he was in violation of the City's Code of Conduct as a chronic offender of the Code of Conduct and that a pre-disciplinary hearing was scheduled for June 14, 2004. Alexander was placed on administrative leave with pay, pending the pre-disciplinary hearing.

15. The pre-disciplinary hearing was held on June 14, 2004, at which time Cropsey and Peters determined that Alexander should be discharged as a chronic offender. By letter dated June 14, 2004, Cropsey advised Alexander that he was terminated from his employment with the City.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 1, Rule 4, City of Safety Harbor Resolution 91-01 (February 19, 1991).

17. Alexander is a chronic offender pursuant to the City's Code of Conduct. From May 12, 2003, to May 21, 2004, he committed a Group I offense for his tardiness from May 12, 2003, through June 6, 2003; a Group I offense for his tardiness during the month of November 2003; a Group II offense for failing to immediately report his accident on December 9, 2003; a Group I offense for his tardiness from February 27, 2004, through

    March 22, 2004; and a Group I offense for neglect that resulted in two accidents on May 20 and 21, 2004. Alexander was disciplined for his offenses relating to tardiness and for his failing to immediately report an accident.

18. Alexander was disciplined in accordance with the City's Code of Conduct and was afforded a pre-disciplinary hearing.

19. The City's Code of Conduct provides that discharge is the penalty for a chronic offender. The City had just cause to discharge Alexander.

RECOMMENDATION

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

RECOMMENDED that a final order be entered terminating Christopher Alexander's employment with the City.

DONE AND ENTERED this 5th day of November, 2004, in Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2004.

COPIES FURNISHED:

Christopher T. Alexander 6324 150th Avenue, North Clearwater, Florida 33760

Alan S. Zimmet, Esquire Zimmet, Unice, Salzman,

Heyman & Jardine, P.A. Post Office Box 15309 Clearwater, Florida 33766

Jeff Bronson, Chairman Personnel Review Board City of Safety Harbor 750 Main Street

Safety Harbor, Florida 34695

Docket for Case No: 04-002398

Orders for Case No: 04-002398