vs.
Case No. 16-4824
Respondent.
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 October 13, 2016, in Clearwater, Florida.
For Petitioner: Matthew M. Smith, Esquire
The issue is whether Respondent, Todd Voigt, 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 August 3, 2016.
By Notice dated August 3, 2016, the City advised Mr. Voigt, a Water Distribution Supervisor I, that he was being dismissed from employment effective August 5, 2016, for violating various provisions of the City’s Code of Ordinances in July 2016.
Mr. Voigt timely requested a hearing to contest the City's action. Pursuant to a contract, the matter was referred by the City to DOAH to conduct a formal hearing.
At the hearing, the City presented the testimony of three witnesses. The City’s Exhibits A through H were accepted in evidence. Mr. Voigt testified on his own behalf, and he offered nine exhibits that were accepted in evidence.
The one-volume Transcript of the hearing was filed on November 16, 2016. A Notice of Filing Transcript was issued the same day directing the parties to file their respective proposed recommended orders by 5:00 p.m. on November 28, 2016. Both parties timely filed post-hearing submittals which were duly considered in the preparation of this Recommended Order.
Florida Statutes (2016).
The City has adopted a Performance and Behavior Management Program manual (PBMP), which includes Personal
Responsibility, Integrity, Excellence and Standards provisions. The City’s Civil Service Board has adopted Rules and Regulations governing the conduct of all positions in the civil service. The Civil Service Rules, Chapter 13, Section 3, Rules and Regulations spell out the grounds for suspending, demoting, or dismissing an employee.
Mr. Voigt was hired by the City in 1989. He started as a laborer in the City’s sewer department. Through a series of promotions, Mr. Voigt worked in a supervisory position in the City’s water works department at the time of the offense. He supervised eight or nine employees at the time of the offense. Throughout Mr. Voigt’s employment, the City’s water works employees were allowed to wear shorts to perform their tasks.
Beginning around February 2016, and continuing for several months, several meetings were held to discuss the uniforms worn by City employees. The meetings were attended by City representatives, City employees, union officials or representatives, a vendor of rental uniforms and others. Following the series of meetings, the City rescinded its policy that allowed employees to wear shorts.1/ The City revised the policy to require employees to use rental uniforms provided through a vendor. The use of uniforms, which did not include shorts, started in June 2016.
On June 22, 2016, Mr. Voigt knocked loudly on the office door of the director of the City’s water works department, David Porter. Mr. Porter was in an intense meeting and asked
Mr. Voigt to wait. Once Mr. Porter’s meeting was completed, he asked Mr. Voigt to enter his office. Mr. Voigt expressed his displeasure with the new City policy banning the wearing of shorts. Mr. Porter advised Mr. Voigt that the decision had been made and there was nothing further to discuss. Mr. Voigt was unhappy with the discussion, and indicated he would go “downtown.”
Mr. Voigt exited Mr. Porter’s office, entered the administrative support staff area, shouted “this is bull t” and slammed a filing cabinet loudly. The noise disrupted
Mr. Porter, who had remained in his office. Mr. Porter immediately went to the support staff area, trailed after Mr. Voigt and requested Mr. Voigt to return to his office.
Mr. Voigt continued out of the building with Mr. Porter walking after him.
When Mr. Porter caught up with Mr. Voigt, Mr. Porter told Mr. Voigt he was never to use profanity while on the job, slam City property or be disrespectful.
Later that same day, Mr. Voigt apologized to Mr. Porter for his actions, but claimed he could not remember what he had
done. Mr. Porter advised Mr. Voigt that he needed to apologize to the administrative support staff, which Mr. Voigt did.
Mr. Porter determined that disciplinary action should be instituted. However, since Mr. Porter was Mr. Voigt’s department director and the one who would have conducted the disciplinary investigation, the matter was turned over to Joseph Roseto, the City’s human resource director (HR Director).
After HR Director Roseto met with Mr. Voigt on
July 6, 2016, he recommended a one-day suspension without pay, and a mandated employee assistance program visit, followed by a six-month development plan. HR Director Roseto directed staff to prepare the appropriate notice for consideration by the Assistant City Manager.
THE OFFENSE THAT LED TO THE TERMINATION LETTER
On July 12, 2016, Mr. Voigt reported to HR Director Roseto’s office at the Municipal Services Building (MSB) to receive the formal disciplinary action. Following his receipt of the disciplinary action Mr. Voigt, who admitted he was upset when he was told of the discipline, walked from the MSB across the street to the MSB parking lot where his City truck was parked.
Instead of backing out of the parking space to leave the MSB parking lot, Mr. Voigt put the truck in drive. At the hearing, Mr. Voigt admitted that he “forgot” about the curb, went over it, and thought he hit a hole. Mr. Voigt hit an above-
ground green utility box. Mr. Voigt did not immediately stop and get out of his truck to view any damage. Instead, Mr. Voigt continued driving to the street where he stopped the truck at the stop sign, adjusted his rearview mirror and then proceeded to the City garage to return the truck.
Upon arrival at the City garage, Mr. Voigt was met by his supervisor. When asked, Mr. Voigt stated that he thought he had “tapped” a utility box. Mr. Voigt did not complete an accident report.
Lelia Peterson, a City Parks and Recreation specialist, was in the MSB parking lot and saw Mr. Voigt hit the utility box and drive off. Ms. Peterson immediately reported the accident to her supervisor.
During the hearing, Mr. Voigt admitted that he hit the utility box, but he did not think he had caused damage. Damage to the City truck was estimated at a hundred dollars. The exact amount of damage to the utility box was undetermined, as it was not the City’s utility box.
At the hearing, Mr. Voigt claimed he had a medical condition that was causing him problems. Mr. Voigt had not provided notice to the City of any medical condition that would warrant a change in his work status, nor had he asked for any accommodations under the Americans with Disability Act for his
alleged medical condition. This alleged medical condition is not sufficient to ameliorate this situation.
CONCLUSIONS OF LAW
Section 2.285(1) and (2) of the City’s 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. DOAH has jurisdiction over the subject matter of and the parties pursuant to this code section and section 120.57(1), Florida Statutes.
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."
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." He shall then "transmit the proposed order composed of proposed findings of fact and conclusions to the civil service board." § 2.285(4), City 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.
The City’s personal responsibility standards include:
We will follow all City policies and procedures.
We will comply with all City and our respective Department, division, and section rules and standard operating procedures.
We will resolve to accept personal accountability and responsibility for our actions.
We will exercise due care and be efficient managers of public funds, equipment, facilities, lands and other resources.
We will use City equipment and materials properly, safely, and judiciously.
We will ensure the safety of others by not being negligent.
We will operate and maintain all City vehicles in a safe and legal manner, abiding by all traffic rules including but not limited to observing the speed limit and using turn signals.
The PBMP also states:
We will present a professional image through actions, dress, speech and behavior.
We will strive for excellence and continuously learn and make improvements.
The Civil Service Rules found in Chapter 13, Section 3, provide in pertinent part:
Reasons for Suspension, Demotion, and Dismissal--Whenever practical, employees will be given reasonable opportunity to bring their performance and/or behavior up to acceptable standards pursuant to the procedures and rules of the City’s performance and behavior
management programs. However, employees may be subject to disciplinary action up to and including immediate dismissal for the following acts, including but not limited to specifically cited examples:
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(b) Failure to perform satisfactorily within established guidelines.
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(g) Commitment of or participation in an activity or action which undermines public confidence or otherwise significantly impairs the employee's ability to perform his/her job productively.
The City’s Vehicle Usage Policy No. 7007.1, provides in pertinent part:
All City employees are required to be diligent and exercise due care to ensure adequate availability of vehicles and the lawful, safe, and effective use of all municipal vehicles at all times.
Vehicle Usage and Responsibilities
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4. Any City employee involved in a motor vehicle accident while operating a City vehicle or operating a personal vehicle for City-related business purposes, no matter how minor, must report the incident to his/her direct supervisor immediately and in accordance with established City policy on reporting accidents. This shall include the timely completion and submittal of all necessary documentation generated as a result of the accident.
Vehicle Policy
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4. Use/operators shall exercise care and courtesy while using/operating City vehicles, and shall not operate the vehicle in such a way as to cause public criticism.
The City 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). Following this standard, the City has the burden of proving by a preponderance of the evidence that Respondent should be terminated for the reasons stated in the Notice.
The specifications portion of the Notice alleges that:
On July 12, 2016 you attended a meeting with the Human Resources Director to address your inappropriate behavior exhibited toward your Department Director on June 22, 2016. During this meeting, you were advised of the consequences associated with the behavior.
After the meeting, you exited the Municipal Services Building and a City employee observed you get into your City vehicle #G3273. The employee reported that you appeared to be upset or unhappy; you started your vehicle and did not reverse out of the parking spot, but instead drove forward. The witness reported you proceeded straight over the curb hitting and damaging a utility box without stopping or hesitating. You knocked the green cover off of the utility box and
bent the wiring as well as the contents inside of it.
Afterward, you returned to the Public Utilities Complex and your supervisor asked you if you hit a utility box and you replied, “I tapped one.”
The above offense represents personal responsibility, integrity and excellence issues of such a serious nature that termination of your employment is warranted.
The Notice goes on to state that these violations constitute grounds for dismissal.
There is no dispute that Mr. Voigt hit the utility box and failed to stop and investigate whether any damage was done. Additionally, Mr. Voigt did not report the incident, but rather responded to a question from his supervisor. The established facts are sufficient to warrant Mr. Voigt's termination.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Mr. Voigt be terminated as a City employee.
DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida.
LYNNE A. QUIMBY-PENNOCK
Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2016.
1/ Very few of the City’s employees were allowed to wear shorts. The City’s risk management department considered the safety of its employees in relation to the type of work that the public utilities employees perform: hard manual labor using shovels for digging; saws and other devices to cut pipes; hammers to break out things; and chemicals. The risk management department determined that shorts were no longer appropriate for such work.
Matthew M. Smith, Esquire City of Clearwater
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.
