STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER,

vs.

Petitioner,

Case No. 15-7203

JERMAINE BENNETT,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings (DOAH) by its assigned Administrative Law Judge, Lynne A. Quimby-Pennock, on February 19, 2016, in Clearwater, Florida.

APPEARANCES

For Petitioner: Matthew M. Smith, Esquire

City of Clearwater, Florida

112 South Osceola Avenue Clearwater, Florida 33756

For Respondent: Jermaine Bennett, pro se

1341 Mary L. Road

Pinellas Park, Florida 33755 STATEMENT OF THE ISSUE

The issue is whether Respondent should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated July 16, 2015.

PRELIMINARY STATEMENT

By Notice dated July 16, 2015, the City advised Respondent, Jermaine Bennett (Mr. Bennett), a public utilities technician II, that he was being dismissed from employment effective Friday, July 17, 2015, for violating various provisions of the City of Clearwater Code of Ordinances in April 2015. Mr. Bennett timely requested a hearing to contest the City's action. Pursuant to a contract, the matter was referred to DOAH to conduct a formal hearing.

At the hearing, the City presented the testimony of five witnesses. The City's Exhibits A through S1/ were accepted in evidence. Mr. Bennett testified on his own behalf and did not offer any exhibits.

The one-volume Transcript of the hearing was filed on March 23, 2016. A notice of filing was issued later that day, directing the parties to file their respective proposed recommended orders by 5:00 p.m., on April 4, 2016. Proposed findings of fact and conclusions of law were filed by the City, and they have been considered in the preparation of this

Recommended Order. To date, Mr. Bennett has not filed anything. Unless otherwise noted, all statutory citations are to the

Florida Statutes (2015).

FINDINGS OF FACT

1. On February 2, 2009, Mr. Bennett was hired by the Clearwater public utilities department as a water distribution technician I. In April 2015, Mr. Bennett was promoted to a public utilities technician II (Tech II). As a Tech II,

   Mr. Bennett’s job description included: repairing water leaks, testing backflows, keeping water flowing, and providing services to customers. Additionally, as a Tech II, Mr. Bennett could be called upon by the public water department to respond to after- hours emergency calls, including nights and weekends.

2. On Sunday, April 26, 2015, Mr. Bennett was on-call for the public water department. A city customer called and reported a water leak at his residence. Mr. Bennett was dispatched to the customer’s residence.

3. Mr. Bennett met the customer and cleared the area around the water meter. Mr. Bennett located the water leak outside the water meter box. Mr. Bennett told the customer that a plumber would charge anywhere from $100 to $1,000 to repair the leak because the service call was on a weekend. Mr. Bennett told the customer he would repair the leak for $300. Further, Mr. Bennett provided the customer with a cell phone number so that if the repair was not satisfactory or there was more work to be done, the customer could contact Mr. Bennett.

   
   

4. Mr. Bennett repaired the leak using plumbing supplies from the public utility department truck. After the work was completed, the customer gave Mr. Bennett a personal check for

   $300. There is no dispute that Mr. Bennett cashed the check on April 27, 2015. After several days the customer texted

   Mr. Bennett that the cost for the repair was too high. Mr. Bennett did not respond to the text.

5. Mr. Bennett completed a “City of Clearwater Water Leak Service Order” on the repair. The work order reflected that Mr. Bennett received the service call at 7:25 p.m., and he

   returned home at 9:10 p.m. Mr. Bennett recorded that he found a water leak "in box @ customer's side, repaired leak."

6. Several weeks later, when the customer received his next city water bill, he called the city customer service center to complain. The customer expressed that, after checking with friends and looking at the cost of plumbing parts, the $300 he paid Mr. Bennett was too high for the repair. The customer provided a copy of his cancelled check to the service center.

7. The Clearwater public utilities department does not charge customers for repairs. There is a city policy that the city will repair water leaks within the meter box, but that water leaks outside the meter box are the responsibility of the customer.

   
   

8. Following the complaint, the city conducted an investigation into the customer’s water leak repair. Glenn Daniel, Mr. Bennett's supervisor, went to the customer’s residence to examine the area around the water meter. Mr. Daniel observed several new plumbing parts installed outside the meter box. Based on the type and condition of the newly installed pipes, Mr. Daniels determined that the new pipes were from the City's inventory.

9. Mr. Bennett admitted that he made the repair to the water pipe. He proceeded to testify that he felt “funny” about taking and cashing the $300 check. Mr. Bennett claimed he returned the $300, in cash at 2 a.m. the next morning, by placing the cash under the customer’s doormat. Mr. Bennett failed to contact the customer to tell him the money was there. When the customer was asked to look for the money, it was not under the doormat. Mr. Bennett's testimony lacks candor and is not credible.

10. Mr. Bennett also claimed that the telephone number the customer used to text him was not his telephone number. Sergeant Ramon Cosme, of the Clearwater police department,

    conducted an investigation of the alleged theft of city property. In the course of his investigation, Sergeant Cosme identified the telephone number as being associated to Mr. Bennett.

    
    

11. Mr. Bennett was paid by the City for the overtime he worked on Sunday, April 26, 2015.

12. The City has adopted a Performance and Behavior Management Program (PBMP) manual that applies to all employees and contains Citywide, Integrity, and Departmental standards of conduct. Also, pursuant to the Code of Ordinances (Code), the Civil Service Board has adopted a set of rules and regulations that apply to all positions in civil service, including

    Mr. Bennett's position. Among other things, those regulations set forth additional grounds for disciplining an employee.

13. Each employee is required to review the policies and procedures documents and to acknowledge the understanding of those policies. Mr. Bennett acknowledged being advised about those policies during his employment with the City.

14. Civil Service Board regulations allow an employee to present the circumstances which led to his discipline and other mitigating evidence. See Ch. 13, § 8, Rules and Regs. Pursuant

    to that regulation, Mr. Bennett requested a disciplinary determination meeting with the Department of Human Resources, which was conducted on July 10, 2015. Mr. Bennett attended the meeting with his union representative. After considering

    Mr. Bennett's explanation, David Porter,2/ on behalf of the Public Utilities Department, recommended that Mr. Bennett’s employment be terminated. On July 16, 2015, the City Manager notified

    
    

    Mr. Bennett that his employment was being terminated effective the following day, July 17, 2015.

15. The evidence shows that Mr. Bennett repaired a water meter leak on the customer’s side of the meter by using city property, and he accepted $300 for the repair.

    CONCLUSIONS OF LAW

    
    

16. Section 2.285(1) and (2) of the Code authorizes the Civil Service Board to contract with DOAH to provide a hearing officer (administrative law judge) "to review employee appeals resulting from alleged adverse employer action," including dismissal.

17. Section 2.285(2) provides that at the hearing, "[t]echnical rules of evidence shall not apply," and “each party” “shall have the right to be heard publicly," to be "represented by a person of his choice," and "to present evidentiary facts."

18. Section 2.285(3) requires that, "in conducting administrative hearings," the hearing officer "shall utilize a procedure similar to that set out in F.S. §§ 120.57(1) and 120.58." She shall then "transmit the proposed order composed of proposed findings of fact and conclusions to the civil service board." § 2.285(4) of the Code. No provision is made for filing exceptions to the proposed order, but both parties may appear before the Civil Service Board when it considers the proposed order.

    
    

19. The Code does not spell out the standard of proof in an appeal by a discharged employee. Ordinarily, except where otherwise provided by statute, an employer seeking to terminate an employee must prove the charges by a preponderance of the evidence. See, e.g., Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d

    568, 569 (Fla. 3d DCA 1990). This standard has been used.

    
    

20. Accordingly, the City has the burden of proving by a preponderance of the evidence that Mr. Bennett should be terminated for the reasons stated in the Notice.

21. The Specifications portion of the Notice alleges, in pertinent part that, “while working for and being compensated by the City of Clearwater, you used City resources, tools and materials to conduct private business for which you accepted $300 compensation for from a customer.” The Notice goes on to state that the “above offense represents personal responsibility, integrity and excellence issues of such a serious nature that termination of your employment is warranted.”

22. There is no dispute that Mr. Bennett repaired a water leak on the customer’s side of the water meter, and he accepted and cashed a $300 check from a city customer for that repair. The established facts are sufficient to warrant Mr. Bennett's employment termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the City of Clearwater enter a final order terminating Mr. Bennett’s employment.

DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2016.

ENDNOTES

1/ Respondent objected to the admissibility of Petitioner’s Exhibits F, H, I and O.

2/ Mr. Porter was serving as the acting director of Public Utilities between May and August 2015; he was made the permanent director of Public Utilities in August 2015.

COPIES FURNISHED:

Jermaine Bennett 1341 Mary L. Road

Pinellas Park, Florida 33755

Matthew M. Smith, Esquire City of Clearwater, Florida

112 South Osceola Avenue Clearwater, Florida 33756 (eServed)

Rosemarie Call, City Clerk City of Clearwater

Post Office Box 4748 Clearwater, Florida 33758-4748

NOTICE OF RIGHTS

Civil Service Board regulations do not authorize the filing of exceptions to this Recommended Order. The Recommended Order will be considered by the Civil Service Board at a meeting to be noticed at a later time and place. At that meeting, the Civil Service Board will make a determination on the disposition of this matter and thereafter send its order and proposed penalty, if any, to the City Manager. See § 2.285(4), Code of Ordinances.

Docket for Case No: 15-007203

Orders for Case No: 15-007203