The Issue Petitioner has alleged that Respondent violated the Florida Civil Rights Act of 1992 and its predecessor statute by discriminating against him based on his age and national origin in the following: denial of promotion to liftstation mechanic; disparate treatment with regard to training opportunities, transfers, overtime opportunities and disciplinary actions; ridicule and other demeaning actions, such as being escorted to the restroom; and other harassment in retaliation for his complaints. Both parties have requested attorney's fees and costs and it is necessary to determine if such award is appropriate. The primary issue for disposition is whether the alleged violations occurred, and, if so, what relief is appropriate. Although other actions, including termination, have occurred since the complaint was filed, the parties have concurred that those actions are not the subject of this proceeding.
Findings Of Fact Emiliano Santos was born in Puerto Rico in 1944 and came to the United States in 1964. Spanish is his first language, and, in his words, he has been struggling with English since 1964. Mr. Santos was employed by the City of Melbourne on January 8, 1990. His first job was as a custodian helper in the auditorium. Approximately six months later he applied for positions as Maintenance Worker I and Maintenance II in the city sewer department; he was given the Maintenance II position, the higher level, because of his employment with the city. Robert Klaproth is the Melbourne water and sewer administrator in charge of the day-to-day operations of the water and sewer division. Tom Hogeland is the water and sewer operations superintendent for the City of Melbourne and has been in that position for approximately five years. Under his supervision is Greg Williams, supervisor of the sewer collection division, who in turn directly supervises Doug Hammond, the liftstation maintenance foreman, and Bob Lyons, the maintenance and construction crewleader. Under those two latter individuals are technical workers such as liftstation mechanics, the liftstation electrician, equipment operators, and other crew leaders. At the entry-level or laborer level are the maintenance workers I and II and utility system service workers. As of January 1992, that entry level in the sewer collection division included, among others, Mr. Santos, William Spann, Joseph Concepcion, and Martin Koehler. The Liftstation Mechanic Promotion Some time in the summer of 1992, an opening came up in a liftstation mechanic position; and Tom Hogeland was directly involved in the recruitment and hiring process. Five applicants sought the position: Mr. Santos, William Spann, Elmer Cross, Oscar Vega and Cecil Smith. The position was advertised in-house as a promotional opportunity. It called for five years mechanical experience in the repair and maintenance of pumps, motors and other associated mechanical equipment. Each applicant was given a copy of the job description in advance of the interview. At the individual interviews Tom Hogeland described the physical condition of the job and asked the individual whether he was familiar with the position description. He also asked four questions to determine the applicant's basic familiarity with pumps and equipment used in liftstations, and he asked each about his background and experience. Of the five applicants, Tom Hogeland found only two had the minimum five years' experience: William Spann and Elmer Cross. Hogeland verified the experience of each applicant. William Spann had claimed experience in the Marine Corps and Hogeland called and spoke with someone in the Corps who was familiar with Spann's experience. Hogeland verified Elmer Cross' experience with his city supervisor, as Cross was working in the Melbourne wastewater treatment plant. Emeliano Santos claimed on his application that he had the requisite experience in a prior job with the John Deere company. When Hogeland called the company he was told that Mr. Santos had not worked as a mechanic, but was a machinist, assembling and operating machines. He had no pump mechanic experience at John Deere. Because of his seniority with the city, Hogeland recommended Elmer Cross for the opening. However, it was not a promotion for Cross and he told Hogeland that he decided to turn down the transfer. The position was then offered to William Spann, who accepted it. At hearing, Mr. Santos admitted that he did not have the requisite five years' experience. He claimed, however, that William Spann did not have the experience either. William Spann is a white male in his 20's who was hired as a maintenance worker I in 1990 in the sewer division. His prior experience was as a maintenance sergeant at Camp LeJeune, including the responsibility for maintaining and servicing the wells and pumps at the facility. This military experience and his experience with the city, when he was assigned to assist the liftstation mechanic, combined to provide him the requisite minimum five years. Contrary to Mr. Santo's claim that he was the only one who was quizzed on his knowledge, both William Spann and Oscar Vega (an Hispanic) testified that their interviews included the questions described by Tom Hogeland. Training Opportunities The city sponsors or pays for its employees' attendance at various training sessions and tries to insure that everyone has an opportunity for such training each year. Tom Hogeland generally makes the final decisions where there is a dispute about who can participate. As required by union contract, the educational opportunities are posted on the bulletin board, and commonly there is no dispute because selections for attendees are made on the basis of seniority and rotation. Selections are also made based on whether the opportunity relates to an individual's job. Mr. Santos alleges that he and other minorities were passed over in favor of white employees who were given training opportunities. He was selected, and attended, a pump school in Orlando, but he contends that the city denied any employee's attendance at another pump school when a number of minorities signed up for the school. Robert Klaproth has cancelled training opportunities twice, both in the wastewater treatment division. On one occasion the opportunity was posted and employees applied, but the school could not be approved because there was no money for it in the budget. On another occasion twenty people signed up, and when the union could not resolve who should go, the opportunity was cancelled. In neither case was race or ethnicity of the employees an issue. There is no evidence that race, age or ethnicity has been an issue in any decision by the city in providing training opportunities. Over-time Opportunities There are three types of overtime for employees in the sewer division. The first is a voluntary on-call overtime for which employees sign up and take one week at a time. During that week the employee forfeits his free time and must be available for emergency response. The second type of overtime is the scheduled emergency overtime which occurs when repairs need to be scheduled after hours when there is reduced demand on the system, or when an emergency occurs which cannot be handled by the on-call person, alone. The third type of overtime occurs when a job is not finished by quitting time and the crew needs to stay over to get the system back together. Generally the crew who starts the job has the opportunity to stay and finish it. Overtime is voluntary and is granted on rotation. The list is posted, by seniority, and when the individual's name comes up, the opportunity is offered, and if it is declined, the individual's name goes back to the bottom of the list. Overtime is compensated at time and a half, either in pay or compensatory time off, at the employee's option. There was a period during 1991 or 1992 when Mr. Santos declined overtime. He claims he declined because it was not being handled fairly, that the rotation was not being followed and that he was being passed over. Aside from some evidence that the overtime postings were removed from the employees' bulletin board for a brief period by some unknown person, there is no evidence that the union-prescribed rotation system was not followed. The 1992 records maintained by Greg Williams reflect a substantial amount of overtime available to Mr. Santos and no evidence that he or the other minorities in the division were being passed over. In 1993, Mr. Santos was provided more than the average amount of overtime hours provided to other employees in the sewer division. Disciplinary Incidents Mr. Santos has been disciplined on several occasions. On one occasion, he, Joseph Concepcion (an Hispanic) and Perry McThenney (Black) were disciplined for leaving the city limits in the city truck to buy some work shoes for Mr. Concepcion. Neither Mr. Concepcion nor Mr. McThenney considered the discipline unwarranted; they understood they violated city policy and did not consider the discipline as discriminatory. On another occasion, incentive points which were used to obtain a raise in pay were removed by the city after it learned that Mr. Santos forged the signatures of his supervisor and other employees on documents related to those incentive points. Mr. Santos freely admits the forgery but dismisses its significance, as he claims he was attending the classes on his own time, and received academic credit for the classes. These were classes taken in coordination with an on-job training program which required the periodic certification by the city that Mr. Santos was working as an electrical apprentice. In October 1992, Mr. Santos was given a written reprimand and leave without pay for taking a full day off for a medical appointment that was approved for a half-day. That discipline was rescinded after Mr. Santos explained to Robert Klaproth that he needed the day to go to the doctor, go to the bank to get money for his prescription and to buy the prescription. Other Hispanic employees have been disciplined from time to time. There is a union grievance procedure in place and it has been used by Mr. Santos and others. In some instances the grievance has been upheld and the discipline rescinded; in other cases the discipline has been upheld. No evidence was presented that the disciplinary process or grievance process have been used by the city to discriminate against Hispanics or other minorities; that is, no competent evidence was presented that white employees received less or no discipline for similar infractions. Ridicule, Harassment or Retaliation Claims Sewer collection division supervisor, Greg Williams, received complaints from other workers, including Joseph Concepcion, that Mr. Santos was taking the truck to make telephone calls or to go to the bathroom and the crew was left at the field site without a vehicle or tools. He also heard complaints that Mr. Santos was leaving to go to the bathroom right after the crew left the breakroom. Greg Williams spoke with crew leader, Bobby Lyons, about telling everyone, and not just Mr. Santos, that the crew members should check with the others before leaving to see if anyone else needed to go; and to be sure that tools and equipment were left at the job site. Greg Williams did not instruct Bobby Lyons to "escort" Mr. Santos to the bathroom. Bobby Lyons did go with Mr. Santos to the bathroom on two occasions after that. The record does not reflect whether Mr. Lyons also went to the bathroom or had other errands to run at the same time. The crews in the city water and sewer division are a diverse group, comprised of whites, blacks and Hispanics. The work can be rough and difficult, and there is ample opportunity for banter and joking to get out of hand. Mr. Santos was involved on several occasions in such verbal spats and was orally chastised, along with the other employee. In the course of one verbal exchange, he called Martin Koehler a "prick" and Koehler called him an "asshole." These are not racial or ethnic epithets. Mr. Santos also complained that Joseph Concepcion was calling him names. Mr. Concepcion, a Hispanic, was not harassing Mr. Santos because of his ethnicity. Two employees in particular in the water and sewer division were commonly heard to say "nigger," or to call Mr. Santos "Puerto Rican": Mike Carouso and Martin Koehler. When this language was brought to the attention of the supervisors, the men were reprimanded, either in writing (in Carouso's case) or verbally. When the union steward, Robert Bray, complained to Robert Klaproth that ethnic remarks were being made, Mr. Klaproth immediately convened a general meeting of the employees in the division and made it clear that such language would not be tolerated. Although it is obvious that the meeting did not cure the problem entirely, the name-calling and epithets did not take place in front of the supervisors. The city's policy is to discipline employees who engage in language that is derogatory to minorities and the city has taken severe action against two high-ranking employees, a police sergeant and a fire battalion chief, for single incidents of such language. Mr. Santos' claims of retaliation are not substantiated. The incidents of disciplinary action which he described were justified, or in the case of the medical leave, was properly rescinded after he explained the circumstances to his supervisors. None of the grievance proceedings described in Mr. Santos' testimony and in copious documents received in evidence, including transcripts of the proceedings, support his claims of retaliation or harassment. The Experience Of Other Minorities Carlos Colon is a sixty-two year old Hispanic employee in the city's park department. He was hired nine years ago, when he was fifty-three. He was disciplined once for accidently damaging a city tractor that he was driving, and he failed to receive a promotion for which he considered himself qualified, but he does not believe that the city or his supervisor discriminated against him. The top manager in the parks department is Felix Rodriquez, a Puerto Rican. Joseph Concepcion, also Puerto Rican, considers his ethnic background an asset because of his bi-lingual ability. He has been regularly promoted in his seven years with the city. He has not observed discrimination in the choice of employees for training, for promotions or for overtime. He has heard Martin Koehler use derogatory language regarding blacks and Hispanics, but not directly toward Mr. Santos and not when any supervisors were around. When he heard Mr. Koehler, a co-worker talking like that, Mr. Concepcion walked into the breakroom at lunch and invited anyone who did not like Puerto Ricans and blacks to come outside and "talk" to him. No one came out; and as far as he was concerned, that was the end of the issue. Perry McThenney is a black employee who has worked for the city for eight years and has been promoted three times. He has not experienced nor observed discrimination in promotions, overtime and training opportunities. Robert Bray, the union steward, is a black city employee. Mr. Santos complained frequently to him about racial slurs against his Hispanic origin but never complained about age discrimination. The one time that Mr. Bray went to Mr. Klaproth with the racial slur complaint, a meeting was held the next day to inform the entire division staff that such language would not be tolerated. Mr. Bray believes that the city should come up with some kind of sensitivity program, but he has not actually suggested that remedy to anyone yet. The employees whom Mr. Brag was aware had used derogatory language were the same two mentioned by Mr. Santos and others: Martin Koehler and Michael Carouso. Pedro Diaz, an Hispanic, was passed over for promotion in favor of a sixty year old white employee. At the time, Mr. Diaz felt he should have gotten the promotion because of his longer seniority with the city; however, he conceded that the successful employee could have had better experience. Mr. Diaz has been promoted by the city since then. Mr. Diaz encountered a series of problems with a supervisor who is no longer employed by the city. Since that supervisor left, no other management employee has given him a hard time or discriminated against him because of his ethnic background. Oscar Vega was born in Cuba and has worked for the city approximately 6-1/2 years. He has been promoted during that period. He has also applied for positions which he did not get; in one case, he was not qualified and agrees that the best person got the job; in another case, he filed a grievance with the help of Robert Bray and received the job. He feels the city has treated him fairly and has not discriminated against him based on his Hispanic origin. Summary of Findings The City of Melbourne has not discriminated against Emiliano Santos based on his age or ethnic origin. The demeanor and credibility of the witness have, in part, contributed to this finding. Specifically, the hearing officer has considered, and rejected, the suggestion that the presence of Robert Klaproth, as Respondent's representative, throughout the proceeding, influenced the testimony of the several black and Hispanic employees called as witnesses by Mr. Santos. There is no doubt that Mr. Santos is bitter and frustrated with his employment experience with the city. He has been subjected to other discipline or personnel action which, by stipulation, was not at issue in this proceeding. He has engaged in crude and disruptive verbal exchanges with co-workers. Whether he was the instigator of those exchanges or not, there is no evidence that they were racially or ethnically motivated. He has been disciplined for good cause, or when he explained the circumstances (as with the medical leave), the discipline was rescinded. He was passed over for a promotion, but did not have the requisite experience, and, as best as the city could determine, the successful applicant did have the experience. There was uncontroverted evidence that at least two non-supervisory employees have used racially derogatory or abusive language in the work place. They were disciplined, and the supervisors attempted to address the problem with a general meeting. Although the language continued, it was not because such was tolerated by the supervisors, and it was not so pervasive as to create an abusive or offensive work environment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner's Petition for Relief dated February 28, 1994, be dismissed. DONE AND ENTERED this 5th day of April, 1995, in Tallahassee, Florida. MARY CLARK 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 5th day of April, 1995. COPIES FURNISHED: James L. Reinman, Esquire 1825 S. Riverview Drive Melbourne, FL 32901 Susan K. W. Erlenbach, Esquire ERLENBACH AND ERLENBACH, P.A. 400 Julia Street Titusville, Florida 32796 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent, the City of Ormond Beach (the "City"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2009),1/ by discriminating against Petitioner based on his race or by discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact The City is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Petitioner, a black male, was employed by the City on August 28, 2001, and assigned to the streets section of the public works department. On October 1, 2003, Petitioner was transferred to the stormwater maintenance section of the public works department, where he worked until his dismissal on July 8, 2009. At the time of his dismissal, Petitioner's job classification was Maintenance Worker II. He reported directly to stormwater supervisor Larry Haigh, who in turn reported directly to environmental systems manager Kevin Gray. At most times, there were eight or nine employees in the stormwater section, including Darren D'Ippolito, a Maintenance Worker IV who worked as second in command to Mr. Haigh and therefore had supervisory authority over Petitioner. Mr. Gray described Mr. D'Ippolito as a "lead worker" who reported directly to Mr. Haigh. Mr. Haigh described the stormwater section's duties as follows: We try to keep anything from flooding, whether it's roads, houses, parking lots, businesses. And we keep all the drains clear and clean during rainstorms, hurricanes. We sandbag City buildings, doorways, you know, keep water out. We take care of streets that are-- that have flooding issues. We go back and find out why they have those issues, and then we fix those issues. Petitioner's primary assignment in the stormwater section was to operate the reach-out mower, which is a large tractor with an extended boom that is used to mow and remove vegetation from the slope angles on swales and ditches throughout the City. The reach-out mower is in daily use because the City has a contract with the Florida Department of Transportation to maintain local rights-of-way. The reach-out mower has an enclosed, air-conditioned cab with a radio, and is therefore considered a desirable assignment within the stormwater section. Many other assignments in the section involve working outside in all manner of weather. The City had no formal job title for "reach-out mower operator." The mower was merely one of the many duties to which a Maintenance Worker II could be assigned. During the course of his employment with the City, Petitioner was placed on performance probation three times. The last such probation, called a "conditional evaluation" by the City, was put in place on December 31, 2008, as the result of an unsatisfactory annual evaluation. The City's employee performance evaluation document is broken into eight categories: appearance; attendance; interpersonal skills; communication skills; achievement of objectives and job knowledge; use and care of equipment; work productivity; and compliance with rules and regulations. In each category, the supervisor rates the employee on a scale of one to five, with "one" meaning below the acceptable standards and "five" meaning that the employee exceeds standards. A score of "three" means that the employee meets the acceptable standard. A score of "two" means that the employee's performance falls between meeting standards and below standards. A score of "four" means that the employee's performance falls between meeting standards and exceeding standards. The employee's overall performance score is calculated by adding the point totals for all eight categories (giving double weight to the scores for "achievement of objectives and job knowledge" and "work productivity"), then dividing the total score by ten. The overall performance is then judged according to the following scale: 5.00 to 4.41 Outstanding 4.40 to 3.71 Excels 3.70 to 2.91 Meets Standards 2.90 to 1.91 Improvement Needed 1.90 to 0.00 Unsatisfactory On his December 31, 2008, evaluation, Petitioner received the following scores and comments: Appearance: 5 "Willis is always neat and clean and in the uniform provided to him." Attendance: 1 "Willis has used 65 hours of unscheduled personal leave time during this ratings period. This abuse of unscheduled personal leave has become a pattern since FY 05/06, FY 06/07 and FY 07/08." Interpersonal Skills: 1 "Willis does not relate to other coworkers effectively and makes little effort to establish rapport. Wills [sic] seems to let his emotions affect interpersonal relationships. Willis needs to work on getting along better with his coworkers." Communication Skills: 2 "Willis' verbal or written communications usually contain necessary information, but most of the time are not accurate. We have been working with Willis to try and change this problem." Achievement of Objectives & Job Knowledge: 2 "Willis understands the goals and objectives of this Department. Willis only handles what he is assigned to do. If Willis is on the Reach-out mower, he's fine. If not, Willis requires constant direction and supervision." Use and Care of Equipment: 4 "Willis generally maintains equipment and promptly reports any deficiencies to his supervisor." Work Productivity: 1 "Willis has no initiative whatsoever. This has been a problem in the past and has not changed. Willis will only do work assigned to him and nothing more. Willis handles few tasks without direct supervision." Compliance with Rules and Regulations: 3 "Willis is in violation of the City's attendance policy." Petitioner's score for his overall performance was 2.2, which placed him in the category of "Improvement Needed." Mr. Gray placed Respondent on a 180-day "conditional evaluation" probation, during which Petitioner would receive a written evaluation every 30 days. In a memorandum to Petitioner dated December 31, 2008, Mr. Gray explained the process as follows: Willis, on December 31, 2008, you were provided with your Annual Employee Performance Evaluation. In your evaluation five (5) areas of "improvement needed" or "below standards" were noted: Attendance Pattern for use of unscheduled personal leave abuse. Interpersonal Skills Pattern of inability to relate to co-workers. Communication Skills Pattern of insufficient verbal communication skills. Achievement of Objectives & Job Knowledge Pattern of non-"Reach-out Mower" related activities. Work Productivity Pattern of lack of initiative to complete any work not specifically assigned but warranted. During this 180 day conditional you will be evaluated by three (3) different superiors every thirty (30) days. The first evaluation will be completed by a Maintenance Worker IV, the second will be completed by the Stormwater Supervisor and the third evaluation will be completed by a Maintenance Worker IV. This succession will be followed for the remaining three (3)-- thirty (30) day evaluations. It is imperative that you realize that during your six (6), thirty (30) day evaluation period [sic] the supervisor responsible will be required to visually observe your work habits and demeanor regarding the above listed five (5) areas of concern. I will be reviewing all six (6), thirty (30) day evaluations prior to presenting them to you. During the evaluation process the immediate supervisor responsible for that evaluation will be present, along with myself. If during any of the evaluation periods you feel the need to discuss any areas of concern, please feel free to notify your immediate supervisor and myself. Additionally, it is to be noted that if during any one (1) of the six (6) Employee Performance Evaluations you receive a rating of "Unsatisfactory" [it] may result in additional disciplinary action, up to and including termination. At the hearing, Mr. Gray testified that he appointed three evaluators at Petitioner's request because Petitioner did not believe that his immediate superiors, Mr. Haigh and Mr. D'Ippolito, would give him a fair evaluation. Petitioner requested that a second Maintenance Worker IV, Ray Back, be appointed to evaluate his performance.3/ Petitioner testified that Mr. Haigh and Mr. D'Ippolito were best friends from high school. Mr. D'Ippolito persistently "nitpicked" Petitioner's job performance whenever Petitioner was not on the reach-out mower. Mr. D'Ippolito would tell Mr. Haigh that Petitioner's work was too slow, and criticize him for "petty stuff" such as failing to sweep out the shop or take out the garbage. Petitioner believed that he was taken off the reach-out mower at the time of his evaluation to afford his superiors an opportunity to hypercriticize his performance. Petitioner felt that Mr. D'Ippolito was harassing him by following him around and watching him perform his work assignments. In fact, it was part of Mr. D'Ippolito's supervisory job to observe Petitioner's performance. Petitioner believed that Mr. D'Ippolito's attitude towards him was rooted in racial prejudice, though he never heard Mr. D'Ippolito say anything that could be construed as racist. At the hearing, a former stormwater section employee, DeWitt Fields, testified that he heard Mr. D'Ippolito use the word "nigger" repeatedly. Mr. Fields, who is black and worked for the City during 2006 and 2007, stated that he had a meeting with Mr. Haigh and Mr. Gray to complain about Mr. D'Ippolito's apparent belief that because he was a supervisor, he could say anything he pleased. Mr. Haigh said to Mr. Fields, "You're black. Don't you use that word?" Mr. Fields denied using the word. Mr. Fields was unsure whether Mr. D'Ippolito was disciplined. Mr. Fields testified that he resigned from the City because of his perception that he had been wronged by the racism in the stormwater department. Neither party questioned Mr. Haigh or Mr. Gray about Mr. Fields' allegations regarding Mr. D'Ippolito.4/ Mr. Fields testified that another Maintenance Worker II, Richard Hernandez, a Caucasian Hispanic male, witnessed Mr. D'Ippolito use the word "nigger" and that Mr. Hernandez provided a written statement to his superiors, but neither party questioned Mr. Hernandez about those events when he testified at the final hearing. Petitioner's failure to seek corroboration of Mr. Fields' story from witnesses who were present and testifying at the hearing, coupled with Mr. Fields' status as a disgruntled former City employee who only vaguely explained the circumstances of his departure, leads the undersigned to discount the credibility of Mr. Fields' allegations. Petitioner had no first-hand knowledge of the incident involving Mr. Fields. Petitioner simply observed that Mr. D'Ippolito seemed to treat Petitioner and another black employee, Greg Lewis, differently than he treated the white employees. For example, when a storm was approaching, Petitioner and Mr. Lewis were always assigned to make sandbags or perform other manual jobs such as "digging and fetching." Petitioner stated that he was not given the same opportunities as white workers to learn to run the backhoe or perform other non-manual tasks. However, Petitioner also conceded that he spent upwards of 90 percent of his working hours operating the reach- out mower. Within the stormwater section, this was considered a plum assignment. Mr. Gray testified that other employees, including Mr. Lewis and Mr. Hernandez, had requested the reach- out mower assignment.5/ The tone of Petitioner's testimony, not to mention the substance of Mr. Haigh's testimony6/ and the written performance evaluations, establish that Petitioner was unhappy whenever he was required to do anything other than operate the reach-out mower. Petitioner claimed that he heard Mr. Haigh make a racist remark in the workplace. In August 2008, during the NFL preseason, Mr. Haigh was holding forth to some employees in the front of the shop regarding the Jacksonville Jaguars game he had watched the previous evening. Mr. Haigh was unaware that Petitioner was close enough to hear his comments. According to Petitioner, Mr. Haigh stated that he did not see any football that night, just "a bunch of monkeys running up and down the field." Mr. Haigh flatly and credibly denied ever having made such a statement. Petitioner testified that he complained to Mr. Haigh about Mr. D'Ippolito's harassment and nitpicking of his job performance, but that Mr. Haigh did nothing to address the problem because of his longstanding friendship with Mr. D'Ippolito. Petitioner testified that he complained to Mr. Gray about the fact that Mr. Haigh and Mr. D'Ippolito were treating him differently because he was black, and that Mr. Gray accused him of "playing the race card." Petitioner stated that on one occasion, Mr. Gray told him that he needed to "man up" and handle matters on his own. Petitioner testified that, unlike many of the other employees in the stormwater section, he did not "sit and just run my mouth." Petitioner said what needed to be said regarding the work at hand, but he did not engage in much social chat with his co-workers. Petitioner believed that his natural reticence led to Mr. Haigh's finding that Petitioner lacked rapport with his fellow employees. In May 2009, just before the Memorial Day weekend, a large "no name" storm approached Volusia County. On May 21, 2009, Volusia County enacted a countywide state of emergency. On Wednesday, May 20, 2009, prior to the formal declarations of emergency, the City began preparations for the storm. The stormwater section began preparing sandbags for residents, checking "hot spots" in the City's drainage system to be sure the drains were open and clear, taking levels on lakes and ponds, using the pump station to lower the level on the City creek to ensure adequate water storage, and fueling the City's vehicles and equipment for use during and immediately after the storm. Mr. Gray testified that the stormwater section performed the "main thrust" of the City's emergency preparations. On either Thursday, May 21 or Friday, May 22, 2009,7/ Mr. Gray convened a meeting of all employees in the stormwater section. Mr. Gray told all the employees that they should expect a call to come to work over the Memorial Day weekend. He instructed the employees to check their rain gear and to be sure their cell phones and pagers had fresh batteries. Each employee of the stormwater section, including Petitioner, was issued a pager. During routine periods, employees took turns having "pager duty" for seven days at a time. The employee on pager duty received an extra dollar per hour for being on call, and was the first person called in to respond to problems occurring outside of normal working hours. During emergencies such as major storms, everyone in the stormwater section was placed on pager duty. If an employee was paged, he was expected to call in and then to report to work unless excused by his superior.8/ Petitioner was well aware of the City's pager policy, as he had earlier agitated for a more equitable distribution of "pager duty" and the extra pay that it entailed.9/ At the meeting, Mr. Gray specifically invoked the universal pager duty requirement for the upcoming weekend. Every employee of the stormwater section was required to carry his pager and to call in to work if paged. On Saturday, May 23, 2009, the rainfall continued unabated, causing the City to enact its own local state of emergency. Mr. Haigh paged all of the stormwater employees. When they returned his call, he told them all to come in to work. All of the stormwater section's employees, including Petitioner, worked that Saturday. At the end of the day, Mr. Gray told the stormwater employees "to go home, get some sleep, but to have their pagers on in the event we had to go into the next mode." Petitioner testified that he had never heard Mr. Gray say that the stormwater employees should expect to work on Saturday. He came in only because an employee in a different section told him that employees were expected to work on Saturday. Petitioner further testified that he and Mr. Lewis worked late on Saturday. By the time Petitioner returned to the station and prepared to go home, no supervisors remained at the workplace. Petitioner stated that no one told him to report to work on Sunday or told him that he had pager duty on that day. On Sunday, May 24, 2009, Mr. Haigh again paged all of the stormwater employees, including Petitioner. All of the employees except Petitioner answered the first page and came in to work. Mr. Haigh paged Petitioner several more times and received no response. Mr. Haigh also telephoned Petitioner's home, where he lived with his parents. Petitioner's father answered the phone and told Mr. Haigh that Petitioner had not come home on Saturday night and he did not know where Petitioner was. Later in the day, Mr. Haigh sent Mr. Lewis to Petitioner's house to see if Petitioner was home. Petitioner did not respond to any of Mr. Haigh's pages and did not report to work on Sunday. Petitioner testified that after the long work day on Saturday, he went out of town to relax on Sunday, spending the day with his fiancée in Daytona Beach. Though he did not realize it at the time, Petitioner did not have his pager with him on Sunday. The Memorial Day holiday was observed on Monday, May 25, 2009. It was a holiday for City employees. At 7 a.m., Mr. Haigh began paging all of the stormwater employees for the third time. Every employee except Petitioner responded to the page, and all of those who responded came in to work with the exception of Mr. Hernandez, who asked Mr. Haigh if he could be excused from reporting in order to take care of a family matter. Mr. Haigh gave Mr. Hernandez permission to stay home. Petitioner testified that he had a telephone conversation with Mr. Lewis on Monday morning. Mr. Lewis told Petitioner that he was at work. Petitioner stated that this was his first inkling that stormwater employees had been called in to work on Sunday or Monday. At about 10:30 a.m., Petitioner phoned Mr. Haigh, who made it very clear that he was upset with Petitioner for failing to call in or show up on either Sunday or Monday. Mr. Haigh asked Petitioner whether he had noticed that it rained 20 inches over the weekend. Petitioner stated that he had been in Daytona, and it didn't seem that bad there. Mr. Haigh stated that Petitioner told him a story about having to help a relative put her furniture on blocks because her house was about to flood. Petitioner testified that his aunt's house was indeed flooded during the storm, but he did not help with her furniture and denied having told this story to Mr. Haigh. Mr. Haigh's testimony is credited on this point. Petitioner asked Mr. Haigh if the stormwater employees were working. Mr. Haigh answered in the affirmative, but told Petitioner not to bother coming in because they were wrapping things up at the station. Mr. Haigh then reported to Mr. Gray that Petitioner had failed to return numerous pages and did not report to work on Sunday. Petitioner testified that it was only after his conversations with Mr. Lewis and Mr. Haigh on Monday that he realized he did not have his pager. He speculated that he either misplaced it or lost it on the job Saturday. He never found it. Mr. Gray made the decision to recommend that Petitioner's employment with the City be terminated. In a June 24, 2009, memorandum10/ to Assistant City Manager Theodore MacLeod, Mr. Gray wrote as follows, in relevant part: . . . Since his Conditional Evaluation, Mr. Littles has been assigned to operate the "Reach-Out Mower" and does a satisfactory job most of the time. The problem that has arisen is when he is not mowing. Several years of evaluations reflect that his interpersonal skills when working with other employees are less than satisfactory. Mr. Littles consistently receives low marks on: Attendance Interpersonal Skills Communication Skills Achievement of Objectives & Job Knowledge Work Productivity During Mr. Littles' seven plus years of employment he has been placed on a thirty (30) day, a sixty (60) day and a one hundred eighty (180) day conditional Performance Evaluation status for several or all the above listed areas. The latest incident happened when he was unavailable during the recent storm and in direct violation of Administrative Policy 53, Compensation During Declared Emergency. Expectations for duty, including reporting requirements before, during and after the emergency event are quite clear and conveyed to all Public Works employees. On May 23, 2009, the City of Ormond Beach enacted a local state of emergency for the May 2009 Unnamed Storm. The administrative policy states employees are required to report or call in during a declared emergency. On Sunday, May 24, 2009, Larry Haigh, Stormwater Supervisor attempted to call Mr. Littles at his home at 9:29 a.m. and spoke to his father, Mr. Littles, Sr., who stated "he didn’t come home last night. Try his pager." Mr. Haigh then attempted to contact Mr. Littles via pager to report to work. Mr. Haigh made three attempts (9:30 a.m., 10:08 a.m. and 3:27 p.m.) to contact Mr. Littles. Mr. Littles did not respond to any [of] the pages. Mr. Littles was issued a new battery for his pager on Friday, May 22, 2009. Mr. Littles finally made contact with Mr. Haigh on Monday, May 25, 2009, at 9:57 a.m.... The Public Works staff is repeatedly informed that they must answer all after- hour calls and/or pages, especially during hurricane season or in this case the Declared Emergency. Mr. Littles is paid to carry the after-hour pager under GEA contract.[11/] In addition, Mr. Littles repeatedly avoids the chain of command procedures and bypasses Mr. Haigh and responds directly to myself without informing Mr. Haigh, who is his immediate supervisor. My response to Mr. Littles in almost all cases is "have you checked with Larry" or "you need to check with Larry." Mr. Littles is currently on a conditional status for substandard evaluations and since this is the fifth month of that time, it is felt that there should be marked improvement in the five (5) items listed above. Mr. Littles in my opinion and the opinion of his immediate supervisors has shown little or no improvement in any area except for attendance. Recently, during the May 2009 storm event, Mr. Littles and another employee were sent to an address that had received structure flooding to assist the homeowner in correctly sand bagging her property. When Mr. Haigh went to follow up on the operation with the homeowner, the homeowner made the comment "if these guys are temporary labor, I would not ever bring them back." On another recent occasion, Mr. Littles disabled one of the fuel keys the department uses for miscellaneous and diesel fueling at the Fleet Facility. Mr. Littles is fully aware of the proper fueling operations but in this instance he punched in numbers that were not required, which resulted in the key being disabled. In this emergency, this key was necessary for the fueling of the numerous stormwater pumps in operation. When Mr. Haigh asked the question, "who punched the numbers in the fuel system," Mr. Littles stated he didn’t know. Mr. Haigh contacted Peggy Cooper, Fleet Systems Specialist to have the key reactivated and requested information on who had placed the personal fuel key with the miscellaneous key. It appeared that it was Mr. Littles who had punched in the numbers 5957 on May 27, 2009, and was the last person to use the fuel keys.[12/] There are several additional instances that are troubling to me regarding Mr. Littles and should not be occurring from a seven year employee. His job knowledge and ability to perform his duties at this point should be satisfactory at minimum. I am therefore requesting that Mr. Littles employment with the City of Ormond Beach be terminated. At the hearing, Mr. Gray testified that he made the decision to recommend termination despite the fact that Petitioner still had one month to go on his 180-day conditional evaluation period. Mr. Gray noted that the last evaluation in June 2009 was the worst of the five that Petitioner received during his probation, and that Petitioner's failure to report on Sunday, May 24, was the final straw. Mr. Gray stated that if an employee were not on probation, failure to respond to a superior's page would call for a verbal or written reprimand if it were a first offense. However, Petitioner was on his third probation in seven years. Moreover, Petitioner had already received a written warning for failing to respond to radio and pager messages from Mr. Haigh on December 24, 2008.13/ Mr. Gray testified that he discussed the recommendation with Mr. MacLeod, the City official who would make the final decision on Petitioner's termination. Mr. Gray testified that they did not talk about Petitioner's allegations of racial discrimination because he was unaware of any such allegations. After receiving Mr. Gray's written recommendation, Mr. MacLeod informed Petitioner of his right to a predetermination conference at which he could present any information in his own defense. The predetermination conference was held on July 2, 2009. Petitioner attended the conference, accompanied by his GEA-OPEIU representative Mike Haller. Attending with Mr. MacLeod was the City's interim Human Resources Director, Jayne Timmons. Petitioner was afforded the opportunity to defend his actions over the Memorial Day weekend and as to the other incidents discussed in Mr. Gray's recommendation memorandum. After the conference, Mr. MacLeod made the decision to support Mr. Gray's recommendation. By letter dated July 7, 2009, Mr. MacLeod informed Petitioner that his employment with the City was terminated, effective July 8, 2009. The letter informed Petitioner of his right to appeal the determination to the City's Human Resources Board or, in the alternative, to utilize the grievance procedures under the GEA-OPEIU's collective bargaining agreement with the City. Petitioner did not appeal to the Human Resources Board, nor did he file a grievance under the collective bargaining agreement. At the hearing, Petitioner sought to explain the incident referenced in Mr. Gray's termination letter regarding the disabling of the fuel key. He essentially blamed the problem on Mr. Lewis, who had either forgotten his key or could not get his key to work. Petitioner lent his fuel key to Mr. Lewis, who could not make it work. Petitioner then tried, and could not make it work. The next thing Petitioner heard about the matter, Mr. Haigh was accusing him of intentionally disabling the fuel pump. Even if Petitioner's story regarding the fuel key is accepted, it does not establish that his superiors were wrong to discipline him. Petitioner concedes that he was involved in the incident that disabled the fuel key. When Mr. Haigh first looked into the matter, Petitioner denied knowing anything about it, which necessitated further investigation. Petitioner's lack of candor alone warranted discipline, particularly because it led to the waste of Mr. Haigh's time and that of Peggy Cooper, the fleet systems specialist who determined that Petitioner was the culprit. Petitioner testified that he was placed on the 180-day probation shortly after he went to City Hall to complain "about how I was unfairly treated, and all these bad evaluations that I had been getting from year to year, and I'm seeing guys that. . . pretty much, ain't doing anything. They just getting by. [I called it] favoritism from Mr. Haigh." 14/ He implied that the probation was in retaliation for his complaint. As noted at Finding of Fact 22, supra, Petitioner claimed that he brought his allegations of racial discrimination to Mr. Gray, who accused him of "playing the race card" and advised him to "man up." Mr. Gray credibly denied that Petitioner raised any issues of discrimination with him until Petitioner turned in his written comments on the December 31, 2008, evaluation. Petitioner's comments included the following: "For the last seven years I've been working with the City of Ormond Beach, I have experienced nothing but harassment, hostile & offensive blatant discriminatory behavior on the part of management . . ." Petitioner also requested a meeting with the City's Human Resources Director and the City Manager to discuss his comments. Mr. Gray testified that he did not read Petitioner's statement as alleging racial discrimination, given Petitioner's history of complaining about general "favoritism" in the stormwater section, but that he nonetheless forwarded Petitioner's meeting request to the City Manager and the Human Resources Director. At that point, the matter was out of Mr. Gray's hands. Mr. Gray had no idea what resulted from the meeting or whether it ever occurred.15/ Mr. Gray recalled Petitioner coming to him to complain about Mr. D'Ippolito, but not because of any racial animus. Petitioner's complaint, as also voiced to Mr. Haigh, involved the fact that Mr. D'Ippolito was "spying" on him. The testimony at the hearing, including Petitioner's, established that Petitioner refused to accept that Mr. D'Ippolito had supervisory authority over him and was supposed to be watching his work. The attempts by Mr. Gray and Mr. Haigh to explain this fact to Petitioner fell on deaf ears. Mr. Gray also recalled that Petitioner complained to him about favorable treatment received by Mr. Hernandez. The gist of Petitioner's complaint was that Mr. Hernandez would not get dirty. Petitioner complained that other workers, including Mr. Hernandez, came in from their day's work as clean as when they went out, whereas Petitioner was required to do the dirty jobs. Mr. Gray testified that he had no response to this complaint. Some jobs in stormwater require the worker to get dirty and others do not. Moreover, said Mr. Gray, some workers are able to "work clean" and others are not. Finally, Mr. Gray was somewhat puzzled by the complaint because Petitioner's regular assignment, operating the reach-out mower, was one of the "cleanest" jobs in the stormwater section. Mr. Gray noted that performing maintenance on the machine involved oil and grease, but that the operational aspects of the reach-out mower did not involve getting dirty. At the hearing, Petitioner testified that his complaint to Mr. Gray about Mr. Hernandez was not confined to the question of getting dirty. Petitioner stated that after receiving his own poor evaluation in December 2008, he complained to Mr. Gray about Mr. Hernandez receiving an outstanding evaluation in spite of having spent all year on the job doing nothing but studying to become a police officer. Petitioner testified that Mr. Hernandez was assigned to operate the Vac-Con, a machine that clears storm drains, and that the Vac-Con truck just sat in front of the public works department while Mr. Hernandez studied. Petitioner stated that Mr. Haigh was aware that Mr. Hernandez was studying on the job and did nothing about it. Mr. Hernandez sat there reading in front of the other employees and took his books with him when riding out on a job. Petitioner did not know whether Mr. Hernandez was ever disciplined for studying on the job. Mr. Hernandez testified that when he was in the police academy he did bring his books in and read them on the job. Mr. Haigh was unaware that Mr. Hernandez was studying on the job until Petitioner and a co-worker complained to someone at City Hall. At that point, Mr. Haigh counseled Mr. Hernandez to "knock it off" and confine his studying to the lunch hour. Mr. Hernandez complied with Mr. Haigh's instruction and that was the end of the matter. Mr. Hernandez' version of these events is more credible than Petitioner's. At the hearing, Petitioner attempted to make a case of disparate treatment as between himself and Mr. Hernandez, focusing on the fact that Mr. Hernandez did not come into work on Monday, May 25, 2009, and received no discipline, whereas Petitioner's failure to come to work the previous day was deemed the "final straw" and cause for his dismissal. In making this case, Petitioner disregards the fact that Mr. Hernandez answered Mr. Haigh's page and requested that he be allowed to remain at home. Unlike Petitioner, Mr. Hernandez was excused from reporting to work. Mr. Haigh was not pleased that Mr. Hernandez asked for the day off, but had no cause to discipline Mr. Hernandez. Mr. Haigh pointed out, "I knew where he was," meaning that he could call Mr. Hernandez in to work if the situation changed. Mr. Haigh had no idea where Petitioner was or how to contact him. Mr. Hernandez' employee performance evaluation for 2008 resulted in an overall score of 4.5, "outstanding" on the City's scoring scale. On each of the eight evaluation criteria, Mr. Hernandez received either a "4" or "5." His superiors included no negative comments or suggestions for improving his performance. Given Mr. Hernandez' overall job performance, it is understandable that the episodes complained of by Petitioner did not result in formal discipline of Mr. Hernandez or greatly affect his performance evaluation. The evidence at the hearing amply established that Petitioner was at best a marginal employee for the City. Mr. Haigh testified that the other employees in the stormwater section did not like to partner with Petitioner because he would not work. For most of the day, Petitioner operated the reach- out mower alone, but when he came into the office to make out his daily reports, Petitioner did not get along with his fellow employees. Mr. Haigh testified that it was hard to make sense of Petitioner's written reports. Mr. Haigh stated that when Petitioner was not on the reach-out mower, he required direction at all times. If a supervisor did not tell him what to do, Petitioner would do nothing. Mr. Haigh described his shock when a homeowner complained to him about the poor job a presumed "day laborer" had done, only to realize that the homeowner was talking about Petitioner. At the time of his dismissal, Petitioner was five months into the third performance-related probation of his seven years with the City. After the events of the Memorial Day weekend, it was not unreasonable for Mr. Gray to conclude that further efforts to improve Petitioner's job performance were futile. Petitioner offered no credible evidence that the City's stated reasons for his termination were a pretext for race discrimination. Petitioner offered no credible evidence that the City discriminated against him because of his race in violation of section 760.10, Florida Statutes. The greater weight of the evidence establishes that Petitioner was terminated from his position with the City due to poor job performance throughout the seven years of his employment. The greater weight of the evidence establishes that the City did not retaliate against Petitioner for his complaint to Mr. Gray about discrimination. The evidence established that Mr. Gray properly forwarded Petitioner's complaint to the City Manager and Human Resources Director. Though the record was unclear as to the outcome of the City's investigation, the fact remains that Petitioner continued to work for the City for another six months after his complaint. Aside from Petitioner's intuitions regarding some kind of "strategy" to fire him, there was no evidence that Petitioner's supervisors were acting in less than good faith in their attempts to shepherd him through the probationary period and encourage him to improve his performance and save his job. The evidence established that Petitioner was the author of his own misfortune.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Ormond Beach did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 5th day of October, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 October, 2011.
The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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.
Findings Of Fact 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. 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. 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. 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. 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." 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. 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. 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. 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. 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. Mr. Bennett was paid by the City for the overtime he worked on Sunday, April 26, 2015. 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. 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. 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. 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.
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.
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.
Recommendation 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
Findings Of Fact Petitioner began employment with Respondent in November 1983. He was assigned to the Water and Sewer Department as a laborer. In 1986, Petitioner was transferred by the Respondent to the Water and Sewer Department water meter shop to be a water meter repairman. Petitioner continued his employment in that section until the spring of 1993. At that time, Petitioner accepted status under the Respondent's Disability Income Replacement policy. This arrangement is for an employee who is absent due to disability for more than 60 days. He then becomes eligible to receive payment of 60 percent of the employee's regular earnings. From the years 1986 into 1990, Petitioner enjoyed good health. During that period his employee work evaluations ranged from satisfactory to above satisfactory. In 1990, Petitioner developed psoriasis. In the beginning, the condition was controlled through medical treatment. However, in 1991, Petitioner was diagnosed with bladder cancer. As a result, while being treated for the bladder cancer in 1991 and 1992, to include two surgeries, Petitioner was unable to receive medical treatment for his psoriasis. Consequently the psoriasis became more severe. There was a change in supervisory personnel on April 4, 1991, which affected Petitioner's employment status together with that of other employees within the Water and Sewer Department. The change came about when Richard Davis, who headed the Water and Sewer Department was replaced by Henry Hicks. Respondent had found it necessary to replace Davis, because in Respondent's view Davis was not satisfactorily addressing the personnel issues within the Water and Sewer Department. When hired, one of the issues which Hicks felt he needed to address was a morale problem caused by employee perceptions that the Department of Water and Sewer employee rules were not being enforced in a consistent manner. Hicks was of the opinion that this perception existed, in part, because supervisors maintained a casual approach to employee counseling and discipline. Hicks, in his tenure, reminded the supervisors to formalize their procedures in dealing with employee counseling and disciplining. He required the supervisor provide documentation of any disciplinary action whether verbally given or by a written reprimand. This change in direction tended to increase the number of documented incidences of imposition of employee discipline within the Water and Sewer Department. The first employee evaluation which Petitioner received after Hicks' assumption of his position of director of the Water and Sewer Department was in 1991. The 1991 evaluation which Petitioner was given contained positive and negative remarks about Petitioner's work performance. In the spring of 1991, the Water and Sewer Department held a picnic, an activity in which the employees were encouraged to participate. As in prior years the Petitioner volunteered to be a member of the food committee for the picnic and was appointed to that committee. Members of the food committee would serve food at the picnic. At that time, the Petitioner's psoriasis was such that he was noticeably peeling and flaking. Howard Johnson, a supervisor with Respondent approached Hicks and told Hicks that several employees had stated that they, the employees, would not go to the picnic if Petitioner served food because they were afraid that Petitioner's skin would flake into the food. Having been apprised of this situation, upon a date prior to the picnic, Hicks met with Petitioner and told Petitioner what had been reported to Hicks and asked Petitioner to serve the needs of the picnic activity in some other manner than food service. Specifically, the Petitioner was offered the opportunity to help "set up" the picnic area. Petitioner did not accept the alternative offer to assist in the outing. Instead, Petitioner was offended and felt that he was unreasonably singled out due to his psoriasis. Nonetheless, the reaction by other employees to having Petitioner serve food and the response by Hicks to offer an alternative opportunity to assist in the activity did not constitute harassment or unreasonable conduct toward Petitioner. In association with the picnic for the spring of 1991, Bobby Thigpen, a supervisor with Respondent, made a comment to Petitioner about Petitioner's psoriasis and Petitioner's participation on the food committee at the picnic. Although Petitioner was mindful of Thigpen's candor about the subject, Thigpen's remarks contributed to Petitioner's hurt feelings concerning other employees not wishing Petitioner to serve food at the picnic. The remarks by Thigpen were not designed to harass Petitioner based upon Petitioner's physical condition. In addition, Petitioner did not report Thigpen's remarks to his supervisor pursuant to Respondent's "No times relevant to the inquiry, prohibited harassment on the basis of handicap status as well as other protected categories. The policy instructed the employee who believed that he had been harassed to bring the matter to the supervisor or to the Human Resource Department within the organization if the employee did not feel that he could discuss the matter with his supervisor. Respondent's employees are required to attend an annual meeting to review this policy. Petitioner did not complain to the Human Resource Department that he had been harassed by Thigpen through Thigpen's remarks regarding Petitioner's service on the food committee. No other competent proof was offered to the effect that Respondent's employees had made derogatory comments about Petitioner's physical disabilities. Because Petitioner's psoriasis was in a more severe condition, Petitioner would leave flakes of skin on chairs in the Water and Sewer Department break-room. When the Petitioner's co residue they would switch chairs rather than sit in the chair on which Petitioner had left flakes of skin. Although Petitioner found out that the other employees were switching chairs due to the flakes of Petitioner's skin being found on the initial chair, there is no competent proof that any employee ever commented to the Petitioner that the employee would be opposed to the Petitioner eating in the break-room due to his physical condition. Petitioner, together with other employees who were supervised by Dan Miller, had been harassed by Miller at times relevant to the inquiry. In Petitioner's instance, Miller's harassment was not directed to Petitioner's physical disabilities. Some of the remarks made by Miller to Petitioner were that Petitioner was short and fat and further derogatory comments about Petitioner's haircut and clothes. Miller had also called the Petitioner dumb or stupid because Petitioner asked Miller to repeat instructions over the radio that was used for communicating between the supervisor and his respective employees. Notwithstanding Petitioner's contention that he had told Miller that he was having trouble hearing because of psoriasis that had spread to Petitioner's ears, Miller denies that Petitioner had told Miller that psoriasis was affecting Petitioner's hearing, and Miller's testimony is credited. On the contrary, without knowledge of any physical disability concerning hearing which Petitioner had, and without regard for the reaction any other employees which Miller supervised might have, Miller made insulting comments to employees which he supervised when talking to them on the radio. Employees other than Petitioner to whom the insulting comments were directed had no known physical disabilities. James Scarberry, a co-employee who worked for Miller, overheard Miller yell at Petitioner on occasion having to do with Petitioner's job performance, not Petitioner's physical disability related to hearing. Petitioner asked Miller and a co-worker not to smoke in his presence because he had recently had bladder cancer surgery. Petitioner contends that this request was met with laughter and jokes. Miller testified that the request was not met with jokes or laughter. Instead, Miller recalls, and his testimony is credited, that Petitioner complained that Al Nichols, a co-worker, had smoked excessively in Petitioner's presence. The subject of Nichols' and Miller's smoking in Petitioner's presence was discussed among Miller, Nichols and Respondent, and it was agreed that Nichols and Miller would try not to smoke excessively in Petitioner's presence. No medical evidence was presented which tended to identify the necessity for Petitioner to be afforded a smoke environment due to his medical condition or that Petitioner had ever made requests other than that directed to Miller and Nichols regarding not smoking in his presence at work. Petitioner had made requests that he be provided light duty because of the problems he experienced with his knees due to psoriasis. These requests were directed to Miller, Petitioner's immediate supervisor. The requests were not always granted. When Petitioner was turned down for light duty it was based upon the fact that light duty was generally not available in the Water and Sewer Department for any employee. Moreover, at that time, employees in Petitioner's work assignment usually worked alone and it would adversely affect the production of the unit if two repairmen were dispatched to do a job which would ordinarily take only one repairman to complete. Petitioner presented no proof concerning denial of light duty at a time when a physician may have specifically recommended light duty for Petitioner. Concerning discipline directed to the Petitioner, on March 18, 1982, Petitioner stopped at a job site to which he had not been assigned. There he engaged David Lipps, an employee of Respondent, in a conversation. Lipps was a supervisor at the site and the conversation had to do with the meal policy which had been applied at the site. Eventually the conversation became an argument, at which point Lipps told Petitioner that he did not belong at the job site and asked him to leave. Lipps then reported the incident to his supervisor, Rodney Thompson and the matter eventually came to the attention of Hicks. Hicks discussed the matter with the Petitioner and Lipps and concluded that Petitioner had no business purpose for being at the Lipps' job site and that Petitioner was responsible for causing the argument with Lipps. Petitioner was issued a written warning on March 26, 1992. The disciplinary reprimand was not related to Petitioner's physical disabilities. On May 18, 1992, Petitioner received a written reprimand. The reprimand was based upon the Petitioner's conduct while on weekend standby duty. This assignment was in keeping with the periodic requirement to serve on weekend standby. On May 16, 1992, Petitioner was on a standby status with Lipps. Lipps was referred to as the "A" worker and Petitioner was the "B" worker. The "A" worker was in charge of the work team. Petitioner arrived at the first job site 34 minutes before Lipps. When Lipps arrived, Petitioner complained that Lipps was an hour late. Petitioner then told Lipps that he had somewhere else to go that day. Lipps and Petitioner went to a second job and by that time Lipps told Petitioner that he was tired of Petitioner's complaining about having to work that day and concluded that Lipps did not have Petitioner's full cooperation. As a result, Lipps determined to leave the completion of the second job until the following Monday. Lipps reported the incident to his supervisor, Rodney Thompson. Petitioner had been previously counseled about his attitude concerning standby duty. Hicks reviewed the facts surrounding Lipps' complaint and decided to issue a written reprimand to Petitioner for making negative verbal remarks about Petitioner's duties and for failing to cooperate with his supervisor on standby duty. The disciplinary action was not for purposes of discriminating against Petitioner because of Petitioner's physical disabilities. Moreover, Hicks had reprimanded two other employees, Ed Swift and Bob Buckley for making negative verbal comments about job duties. Hicks did not know these other individuals to be suffering from any form of physical disability. In June of 1992, Petitioner applied for and was granted a leave of absence for an unspecified period. By June 2, 1992, Petitioner knew that he would need to go on extended leave beginning June 8, 1992. He failed to inform any of his supervisors that he was going on this medical leave. He did not show up for work on June 8, 1992. Hicks inquired of Petitioner on June 8, 1992, about not telling his supervisor that he was going to be on medical leave. Petitioner responded to the inquiry by indicating that he had told Scarberry, Petitioner's co-worker, of his intention to go on medical leave and that he had told a city clinic nurse that he was going on leave of absence. Hicks pointed out, correctly, that telling the nurse and Scarberry of Petitioner's intentions to take medical leave did not relieve Petitioner of the duty to directly inform a supervisor of that intention. Moreover, Scarberry had told the Petitioner that he, Scarberry, would not be at work the first day of Petitioner's medical leave, making it questionable that Scarberry would have advised a supervisor that Petitioner was hoping to be absent from work that day. Scarberry made Hicks aware that Scarberry had pointed out to Petitioner that he would not be at work on June 8, 1992. Petitioner's assertion that he wrote a note to his immediate supervisor, Miller, regarding the plan to be out on June 8, 1992, if true, is of no utility because the note was not given directly to Miller and was never indirectly received by Miller. Miller had not been at work June 5, 1992, the friday before Petitioner was missing from his job duty on June 8, 1992. Petitioner knew that Miller was not at work on June 5, 1992. As a consequence of not informing a supervisor that he was going to be on extended medical leave, Petitioner was disciplined. The action by Respondent on which Petitioner was given a written reprimand for failure to inform a supervisor that Petitioner was going to take extended medical leave did not constitute discrimination against Petitioner based upon his physical disabilities. Petitioner was allowed to take the extended medical leave. Noel Werner, a secretary in the Water and Sewer Department had also been reprimanded by Hicks for failing to follow proper procedures for obtaining authorization to take medical leave. Hicks is unaware of any physical disability that Ms. Werner may have. When Petitioner took leave in June of 1992, he believed that he would be eligible for Disability Income Replacement. However, in August 1992, Petitioner was informed that the Respondent's Risk Management Department had determined that he was ineligible because he was under the care of a licensed health counselor as opposed to an M.D. or a Ph.D. Carol Ingham, Respondent's Human Resource Director, learned of this circumstance and contacted the Assistant City Manager, Dick Lewis, and requested that Petitioner be granted an exception to the policy of not being eligible for Disability Income Replacement when using a licensed health counselor. As a result, Petitioner's request was reevaluated and he was ruled eligible for Disability Income Replacement through the policy pertaining to that status for the period August 4 through 30, 1992. Concerning his physical condition, in the spring of 1992, Petitioner was diagnosed with osteoarthritis in his knees. This meant he was disabled to do any persistent bending or kneeling, which was a requirement of his employment in the Water and Sewer Department. His condition also disabled him from doing his assigned work because his work as a water meter repairman involved walking distances of a 100 feet or more on a persistent basis and standing all day. Concerning the medical leave of absence which Petitioner took in the summer of 1992, this subject was discussed by Ingham in conversation with the city clinic nurse, Holly McLaughlin. They talked about the stress which Petitioner seemed to be experiencing and the failure to follow the policy of informing his supervisor of his intention to take medical leave. On June 15, 1992, Ms. Ingham met with Petitioner and his wife to discuss Petitioner's stress. At that time, Petitioner reported to Ms. Ingham that Petitioner's supervisor Miller had treated him badly and that Miller had also treated other employees badly. Petitioner told Ingham that Miller had called Petitioner stupid and had been abusive in conversation over the radio. No claim was made by Petitioner that Miller had made comments directed to Petitioner's physical disabilities. As a follow Ingham discussed Petitioner's remarks about Miller's conduct with a number of the Petitioner's co-workers. Ingham decided that Miller had, in fact, yelled and cursed at a number of employees he supervised, to include Petitioner. No other employee reported to Ingham that Miller had made derogatory comments in their presence concerning Petitioner's physical disabilities. Based upon Ingham's findings, Hicks determined to discipline Miller for his conduct directed toward employees whom Miller supervised. Miller received a written reprimand and was given the option of being demoted or seeking counseling through an employee assistance program. Miller opted to go to the employee assistance program. Moreover, Miller was told that if conduct toward subordinates continued that he would be subject to more severe discipline to include discharge. Miller's treatment of the employees he supervises has improved since the imposition of discipline. Petitioner returned to work in August 1992, following his leave of absence for medical purposes. At that time, he was issued a service truck which another employee had been using. Petitioner felt that he should have been issued a new truck which the Water and Sewer Department operated. The truck that Petitioner had been issued was dirty and smelly. Miller told Petitioner that the newer truck was assigned to an employee who needed the larger truck because that employee would be performing heavier work than Petitioner would be called upon to perform. Miller offered to have the truck which Petitioner had been issued cleaned up or detailed. Petitioner declined that offer. Petitioner complained about the truck that he had been assigned to a co-worker, Fred Sauls. He told Sauls that he was going to take the truck he was issued and drive it to city hall to show Ingham, the Human Resource Director. In fact, Petitioner reported the incident to Ms. Ingham. The Petitioner received a letter of reprimand on September 4, 1992, for complaining to a co-worker and Ms. Ingham about an everyday work related problem rather than following the chain of command. Prior to receiving that written reprimand, Petitioner had been specifically counseled by Hicks concerning handling everyday work related problems through Petitioner's supervisor. Those specific instructions on everyday work related problems were not countermanded by the general opportunity which Hicks had described for employees to go outside the chain of command when they did not feel that they would get satisfaction from an immediate supervisor, and the open door opportunity to consult with the Human Resource Director. In this instance, the response from Miller was adequate to meet Petitioner's needs in confronting an everyday work related problem and Petitioner had no reason to complain to Sauls or to complain to Ingham. The written reprimand given to Petitioner was not designed to discriminate against Petitioner based upon his physical disabilities. Hicks and Ingham became aware of the Petitioner's inability to perform his assigned job duties due to his physical disabilities and they looked for other duties that the Respondent might be able to perform in view of his physical disabilities. The only positions that were found for which Petitioner was otherwise qualified and physically able to perform were part-time positions that did not offer medical benefits. Upon further reflection, Ingham and Hicks offered to combine these two positions in the Respondent's Recreation Department into a single job which would allow Petitioner to continue working and to receive benefits. The combined position was at a lesser pay than the present position which he held. Petitioner decided that he would prefer to be placed in the status of Disability Income Replacement in lieu of the combined jobs. In April 1993, Petitioner accepted the status of Disability Income Replacement and has not returned to work.
Recommendation Based upon the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations which dismisses the Petitioner's claims. DONE and ENTERED this 13th day of June, 1994, 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 13th day of June, 1994. APPENDIX The following discussion is given concerning the Proposed Findings of Fact of the parties: Petitioner's Facts: Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 14 are contrary to facts found. Respondent's Facts: Paragraphs 1 through 26 are subordinate to facts found. COPIES FURNISHED: William A. Ramputi, Esquire Scott, Gleason & Pope, P.A. 409 Southeast Fourteenth Street Ocala, Florida 34471 David H. Spalter, Esquire Fisher & Phillips 2310 One Financial Plaza Fort Lauderdale, Florida 33394 Sharon Moultry, Clerk Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue The issue for consideration in this case is whether Respondents should pay two fines of $500 each for allegedly violating Section 386.041, Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for issuing citations under Chapter 386. Respondents own an apartment complex located at 1202 Shadow Drive, Lakeland, Florida. In the two weeks preceding December 29, 1997, Respondents received complaints from several tenants regarding an overflowing sewer system in their rental units. On December 29, 1997, Respondents responded to the complaints by pumping sewage from the dosage chamber in the septic tank onto a vacant lot adjacent to the apartment complex. On December 30, 1997, Petitioner received a complaint that sewage was being discharged onto the neighboring lot of the apartment complex. Petitioner inspected the site on December 30, 1997, and advised Respondent, Shirley Crawford, and an employee named "Fred" that it was illegal to dump untreated sewage onto the open ground. Petitioner ordered them to immediately turn off the pump so that no more sewage could be discharged onto the adjacent lot. Respondent, Shirley Crawford, failed to respond immediately to the order. Respondents were unwilling to cooperate with Petitioner. Petitioner issued a citation to Respondents for violating Section 386.041. Although Respondents did unplug the pump later that same day, the pump was reset to work through the night. They continued pumping discharge onto the adjacent lot during the following day. Petitioner received another complaint on January 5, 1998, alleging that the septic tank at the same address was discharging from the tank onto the ground surrounding the rental units. Petitioner inspected the site. The drain field was breaking out. A probe placed into the drain field verified that the discharge on the ground was coming from the septic tank. It was determined that there was a hole in the drain field. Furthermore, a PVC pipe used to drain the system on December 30, 1997, had not been removed from the system as required on December 30, 1997. A second citation was issued for violating Chapter 386. As part of the citation, Petitioner instructed Respondents to pull a permit by the following week to repair the system so that they could accommodate the needs of the apartment complex. Respondents pulled a permit within the following week. However, they failed to repair or replace the septic system according to the specifications and requirements of the permit. Respondents failed to supply Petitioner with a schedule for pumping sewage out of the tank until the system was repaired according to the specifications and requirements of the permit. The work Respondents performed on the system was completed on March 15, 1998. Respondents modified the faulty system by covering or plugging pipes leading into the faulty system from another older system. It took approximately 45 minutes to one hour to plug these pipes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a Final Order sustaining the two citations issued on December 30, 1997, and January 9, 1998, imposing fines of $1,000, and denying the request to dismiss the citations. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 2nd day of July, 1998. COPIES FURNISHED: Wayne and Shirley Crawford 4732 Highway 98, North Lakeland, Florida 33810 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700
Recommendation That pursuant to Article 12.1.2, General Conditions of the Contract for construction of State Project Number HSMB-6115, Drivers License facility, Hillsborough County, Florida, a change order be approved and issued increasing the total contract sum in the amount of $6,788.00 as authorized under Paragraph 8.5 of the aforesaid contract. DONE AND ENTERED this 7th day of April 1976 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: May Jo Carpenter, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida Stephen C. Cheeseman, Esquire Gordon and Maney 2919 First Financial Tower Tampa, Florida
Findings Of Fact The Petitioner is a utility regulated by the Commission that is in the business of acquiring and operating water and sewer systems in Florida, principally in Central Florida. It now operates 39 systems, of which at least 30 water systems and 5 sewer systems are located in Orange, Lake and Seminole counties. In this case, the utility serves 547 water customers and 528 sewer customers in a subdivision known as University Shores. Southern commenced operating these systems in June, 1978, purchased them from University Shores Utilities, Inc. in September, 1978, and applied to the Commission for a transfer, which application was approved November 1, 1978, by Order 8550. The rates for service by these systems were granted by Order 6822 on August 6, 1975. Notwithstanding customer complaints of the quality of the water service (smell, taste, excess chlorine, sediment and no-noticed interruptions), the systems are in compliance with governmental standards. No customer complaints had been made to regulatory agencies, and the utility had handled only five for 1979 and to date in 1980. Due to a large increase in number of customers, a year end, rather than average, test year is appropriate; and the facilities are used and useful. Petitioner's rate bases are computed as follows: WATER SEWER Year end test year plant $526,737 $957,176 Construction Work in Progress 2,500 -0- Acquisition adjustment (net of amortization) (41,490) (78,300) Accumulated depreciation (67,172) (128,393) CIAC (net of amortization) (186,470) (489,438) Working Capital 5,476 6,386 Income tax lag (2,951) (4,225) $236,630 $263,214 The following capital structure and rate of return is that agreed to by the Petitioner and Respondent prior to intervention by the customers: WEIGHTED TYPE AMOUNT RATIO COST COST Common Stock $1,882,055 60.44 14.0 percent 8.46 Long Term Debt 1,037,372 33.31 8.89 2.96 Cost Free 194,768 6.25 0 0 TOTAL $3,114,195 100.00 11.42 percent The above rate bases and rate of return provide an authorized constructed net operating income from water service of $22,523 and from sewer service of $30,059. Although the return on water service is only 9.52, the revenue is limited to that in the application. This results in the following constructed statement of operations for year ended June 30, 1979: WATER SEWER Operating Revenue $94,550 $117,814 Operating Expense Operation 41,853 49,838 Maintenance 1,950 1,244 Depreciation 5,964 7,451 Amortization (860) (1,598) Taxes, other than income 8,363 9,726 Income taxes 14,757 21,124 TOTAL $ 72,027 $ 87,785 Net Operating Income $ 22,523 $ 30,059 Rate Base $236,630 $263,214 Rate of Return 9.52 11.42 percent It is noted that the above revenue requirement is more than the interim authorized revenue of $68,841 for water and $81,720 for sewer. The staff proposed that the rate structure should be changed from the present block structure for water and flat rate for sewer to a base facility charge for both water and sewer. This concept is appropriate since it serves to conserve water and insures that each customer pays his fair share of the costs of providing service. No evidence opposing this type rate structure was presented.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Southern States Utilities, Inc., University Shores Division, be granted and that the utility he authorized to file new tariffs to be approved by the Florida Public Service Commission that would have provided for the test year ending June 30, 1979 annual gross revenues of $94,550 for water service and $117,814 for sewer service. It is further RECOMMENDED that the refund bend be returned to utility. DONE and ORDERED this 25th day of November, 1980, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: R. M. C. Rose, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 William H. Harrold, Esquire Florida Public Service Commission 101 East Gaines Street - Fletcher Bldg. Tallahassee, Florida 32301 Jack Shreve, Esquire Stephen C. Burgess, Esquire Benjamin H. Dickens, Jr., Esquire Office of Public Counsel Holland Building - Room 4 Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street - Fletcher Bldg. Tallahassee, Florida 32301 Robert T. Mann, Chairman Public Service Commission 101 East Gaines Street - Fletcher Bldg. Tallahassee, Florida 32301
Findings Of Fact Petitioner, George H. Hopper, submitted an application for a license to operate a Class "C" wastewater treatment plant to the Respondent on or about April 8, 1977. On November 28, 1977, the Respondent issued a letter of intent to deny the license. This letter of intent was subsequently modified by a letter to petitioner from Respondent dated January 4, 1978. The Respondent, in the above-referenced correspondence, based its letters of intent to deny the Petitioner a Class "C" wastewater treatment plant operator's license based upon two primary grounds. Those grounds are as follows: "This Department has concluded that you have not fulfilled the actual experience requirement of section 17-16.03(2)(b), Florida Administrative Code (F.A.C.), as defined by section 17-16.02(8) F.A.C." (See letter dated November 28, 1977.) "In addition to the above referenced deficiency in actual work experience, it has been noted that you have not completed an approved course related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code." (See letter dated January 4, 1978.) Respecting the second allegation, Petitioner presented testimony during the course of the hearing which, in fact, indicates that he did complete an approved coarse related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code. Additionally, Petitioner presented a diploma supporting this contention. This certificate reflects the fact that the Petitioner satisfactorily completed the course on "Operation of Wastewater Treatment Plants" on or about May 2, 1977. Based thereon, and the testimony of Respondent's certification officer, Robert W. Hall, to the effect that the Respondent did comply with the Code requirement which mandates completion of an approved course related to wastewater treatment plant operation, that ground is no longer a basis for the denial of Petitioner's certification. Petitioner testified, and the other documentary evidence introduced during the coarse of the hearing indicates, that Petitioner was employed from January, 1975, through December 25, 1975, as administrator of the Margate Utility Authority. From December 25, 1975, through February 15, 1976, the Petitioner was employed in a position other than as administrator, his resignation being effective on February 15, 1976. Accordingly, the Petitioner was employed at the Authority for a period in excess of one year. What is at issue, is the Respondent's contention that the Petitioner was not actually performing duties tantamount to fulfillment of the actual experience requirement of Section 17-16.03(2)(b), Florida Administrative Cede, inasmuch as his duties as an administrator were more in the nature of being in charge of the facility, with little practical experience as the term "experience" is meant in Chapter 17 of the Florida Administrative Code. Additionally, it was noted that the Petitioner was re-employed by the City of Margate as a supervisor. During the hearing, the Petitioner outlined his duties as an administrator which included being in charge off the overall operation of the wastewater treatment plant. Petitioner testified that when he was first employed at the Margate Utility Authority, the wastewater treatment plants were not operational. He testified that a water-sewer moratorium had been placed by the Board of Health, citing approximately five violations. Petitioner testified that he instituted numerous changes in the operations of the wastewater treatment facilities which included hiring a contractor to supervise deficiencies in the wastewater treatment plant and its injector systems which were over-pressurized. He testified that within approximately two months of his employment with the Authority, he was able to correct approximately 80 percent of the problems and was able to again make the treatment plant operational. Petitioner testified that he normally worked a five day week; however, he was on duty in excess of forty hours weekly for the resolution of all daily operational problems. Evidence introduced during the course of the hearing reveals that the wastewater treatment facility here involved is fully automated and that the operators have very little to do in terms of manual tasks. In this regard, the Petitioner testified that he was on duty at the facility throughout his employment during the period January, 1975, through December, 1975, to operate the wastewater treatment plant. Additionally, the Petitioner testified that his office, as an administrator, was located in close proximity to the wastewater treatment facilities and he was available to in fact operate the wastewater treatment plant, as needed. Finally, Respondent's certification officer, Robert W. Hall, testified that in his opinion, being available to operate as opposed to actual operation is what is required by the actual experience requirements of the Florida Administrative Code. Based thereon, I shall recommend that the Respondent withdraw its notice of intent to deny Petitioner's application for a Class "C" wastewater treatment plant operator's license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That Petitioner's application for a Class "C" wastewater treatment operator's license be GRANTED. RECOMMENDED this 8th day of May, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Russell L. Forkey, Esquire 3081 East Commercial Boulevard Fort Lauderdale, Florida 33308 Randall E. Denker, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
