Findings Of Fact Background During 1994, the Respondent, Craig Reeves, was working for the City as a Tradesworker in Infrastructure. While technically not in a supervisory position, as Tradesworker the Respondent functioned as a job foreman or lead man on his crew. He received jobs from his immediate supervisor, and it was the Respondent's job to mobilize his crew, assign tasks and get the jobs done. Having a background in private construction work, the Respondent brought to the job a private construction work philosophy. Essentially, he thought the workers on his crew (or any other crew) should do their jobs, and do them right, and told them so in blunt terms. While such an attitude apparently is both effective and practical in private construction work, it apparently is too harsh an attitude to be practical for use on all of the Respondent's crew (or perhaps any City work crew.) In addition, working for the City, the Respondent was unable to use (or at least carry through with) the threat that is always available in the private sector to simply fire on the spot any employee who did not meet the foreman's standards. ("Do it my way and do it right, or go find another job.") Some of the men could handle, and respond to, what amounted to the Respondent's bullying; others could not. While the Respondent was able to get all of his jobs done timely and well using his approach, he hurt the feelings of some members of his crew. Anger and resentment built up among them. Although the Respondent received high marks (exceeds standards) in most areas of his performance evaluations, for at least the three years beginning August 26, 1991, the Respondent consistently received admonishments and only satisfactory in the area of his treatment of the men working under him. The Respondent generally accepted these criticisms and agreed to try to improve in that area. However, the City also certified in the evaluations that the Respondent already was receiving all "requisite annual training," and no real improvement over the years was evident. The Charges and Investigation One Friday in June, 1994, one member of the Respondent's crew, named Ed Stiers, was found crying to himself on the job. He told the Respondent's supervisor that he could not take working under the Respondent any longer and that he wanted a demotion to get off the Respondent's crew. Just barely coherent, Stiers said something to the effect that he was sexually harassed on the job eight to nine years before and that he was afraid it was starting to happen to him again. He accused the Respondent and another man on the Respondent's crew, named Phil Manson, of sexual harassment, physical and verbal abuse and general mistreatment on the job. The following week, the Respondent's supervisors referred Stiers to the City's Human Relations Director, Eleanor Breland, to investigate the charges. Breland's investigation consisted of interviews with Stiers, the Respondent, and everyone else who was in a position to have knowledge about the charges. To assist her in her investigation, Breland tape-recorded the interviews. At times, she stopped the recording and inadvertently forgot to restart it. Also, an assistant later erroneously reused one of the tapes, erasing part of an interview. Having been told incorrectly that statements prepared from the interviews were verbatim transcripts, the Respondent became suspicious when he discovered that they were not and that one of the tapes had been erased. But it is found that there was no intentional destruction of evidence favorable to the Respondent or cover-up or any other kind of foul play involved. Name-Calling and Personal Insults It is found that the Respondent probably did call certain City employees working under him names like "stupid" and "ignorant." He also described some of the things they did on the job as being "stupid" or "ignorant" if they made mistakes on the job, or did jobs in ways that were (at least in the Respondent's mind) incorrect or inefficient or ineffective, and it was in those contexts that the Respondent might have called the workers "stupid" or "ignorant" or words to that effect. Once as Stiers and a co-worker approached a job site where the Respondent was working, the Respondent began to repeat the phrase "Stiers and queers" in a "sing-song" manner. Stiers took the Respondent to be calling him a "queer," but it was not clear from the evidence what the Respondent intended. At worst, it was proven that the Respondent's behavior was nonsensical and childish joking around on the job. While maybe not appropriate or desirable behavior on the Respondent's part, it was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. It is found that the Respondent has told City employees working under him that they "are not paid to think." This comment could be considered a personal insult directed to the employees' intelligence. However, it appears that the context of such a comment would have been an occasion when a worker under him contradicted the Respondent, saying "but I thought" or "but I think." In using the comment, the Respondent was repeating an expression he heard his immediate supervisor use. In September, 1994, in response to criticism of his use of the expression during a group meeting, the Respondent pointed out his supervisor's use of the very same expression and said that, if his supervisor agreed, he would also stop using it. There is no evidence that the Respondent continued to use the expression after the September, 1994, meeting. The Safety Sunglasses Ed Stiers insisted on wearing safety sunglasses that were so old, scratched up and dirty that he barely could see out of them. Apparently at least in part because he could not see clearly through the glasses, Stiers made mistakes on the job, such as steering wheelbarrows over form boards and into co- workers. The Respondent repeatedly admonished Stiers to get new glasses so that he could see better. Sometimes, Stiers responded to the effect that he did not want to be able to see any better. It was proven that at least once, out of anger and frustration with Stier's obstinacy, the Respondent snatched Stiers's old glasses off his face and threw them away. He got new glasses for Stiers to use instead and gave them to Stiers to put on. Cleaning the Trucks Most of the time, at the end of the work day, the Respondent assigned two men to clean out each of the City trucks used during the day. On occasion, the Respondent assigned Stiers, or another, to clean a truck alone. It was not proven that Stiers or the others were singled out to do this chore by themselves in retaliation or as a form of mistreatment or to "bust their chops." Most of the time, it was just a matter of assigning tasks in the most efficient manner. For example, Stiers was not good at finishing curbs, so the Respondent sometimes would have Stiers clean out a truck while another worker helped finish curbs. Butt-Poking and Bananas It was proven that the Respondent poked Stiers in the posterior with a rake handle while Stiers was bent over and reaching down into a hole in the ground. The Respondent's purpose was to redirect Stiers's attention to the part of the hole in which Stiers was supposed to be working. It was not proven that there was anything sexual about what the Respondent did or how he did it. One day at work, Manson noticed that Stiers seemed to be staring at a banana he was holding. Comparing the banana to a male sexual body part, Manson "joked" about Stiers wanting to eat the banana. Others, including the Respondent, also persisted in teasing Stiers about "eating bananas." While maybe not appropriate or desirable behavior on the Respondent's part, it also was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. At different times, all of them--including not only the Respondent, but Stiers as well--went "overboard" in the joking and teasing. Racial Slurs It was proven that the Respondent used racial slurs by referring to a fellow employee as a "bush nigger" and by describing a new hire (Manson) as "a white guy, not a nigger." However, it was not proven that the Respondent used these terms in the presence of African-Americans. Request for Training On or about August 11, 1994, the Respondent registered for City Human Services training in proper techniques in supervising those working under him. The training class was entitled "Basics of Supervision." He requested the class scheduled for September 20, 1994, but for reasons not made clear from the evidence, he did not attend the class until February 24, 1995, after action already had been taken to demote and suspend him. Selective Discipline The evidence disclosed that several other City employees--including many of the Respondent's accusers--were guilty of some of the same misconduct with which the City has charged the Respondent in this proceeding. The evidence did not disclose that disciplinary action has been taken against any of them except the Respondent and Manson, the two targets of Stiers's complaints. (Manson received a reprimand.) Apparently, since only the Respondent and Manson were named in Stiers's complaints, Breland's investigative report on the complaints only recommended that action be taken against them. Breland testified that she assumed that the appropriate supervisors and personnel officers would take appropriate action against others whose misconduct might be revealed in the body of her investigative report, but it is not clear from the evidence whether her assumption was correct. Disciplinary Guidelines The City of Clearwater has adopted Guidelines for Disciplinary Action, which provide in pertinent part: [The Guidelines] are structured to provide for equality of treatment in discipline. However, in recognition of the fact that the circumstances of each infraction or occurrence may differ in many respects from the circumstances in other somewhat similar situations, the City retains the right to treat each occurrence on an individual basis and without creating precedent for other cases which may arise in the future or mitigating previous discipline. The City took the position in this case that the Respondent's alleged actions were governed by the following Guidelines for Disciplinary Action: Level 3, #14 - Threatening, intimidating, coercing or interfering with fellow employees, supervisors or citizens at any time while on duty, reporting for duty or leaving duty an on City premises, including the use of abusive or profane language. (20 points) Level 4, #8 - Abuse, misuse, destruction or loss of any City property, including records, tools, supplies, equipment and radio network. (40 points) Level 4, #16 - Making or publishing false, vicious or malicious statement(s) concerning an employee or a supervisor where such false statement(s) are damaging to the individual's reputation. (40 points) Level 5, #13 - Immoral, unlawful or improper conduct on or off the job which is contrary to honesty, modesty or decency and which tends to affect the reputation and citizen's good will toward the City, whether or not such act is a criminal offense. (60 points) Level 5 offenses under the Guidelines justify 60 discipline points and discharge or a ten- to 20-day suspension on the first occurrence. (The Guidelines provide that "any employee who is assessed disciplinary action totalling the equivalent of 60 points within any 24-consecutive month period is subject to dismissal.") In the Guidelines, Level 5, #13, is described as a violation of paragraph (j) of Rule 14, Section 1. Level 4 offenses under the Guidelines justify: 40 discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the first occurrence; and 40 more discipline points (for a total of 80 cumulative points) and discharge or a seven- to 15-day suspension on the second occurrence. The Guidelines describe Level 4, #8, as a violation of paragraph (e) of Rule 14, Section 1; they describe Level 4, #16, as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 3 offenses under the Guidelines justify: 20 discipline points and a one- to four-day suspension on the first occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the second occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the third occurrence. In the Guidelines, Level 3, #14, is described as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 2 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 20 discipline points and a one- to four-day suspension on the second occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the third occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the fourth occurrence. Level 1 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 15 points and a one- to three-day suspension on the second occurrence; 15 more points (for a total of 30 cumulative points) and a three- to five-day suspension on the third occurrence; 15 more points (for a total of 45 cumulative points) and a five- to seven-day suspension on the fourth occurrence; and 15 more points (for a total of 60 cumulative points) and a discharge or a seven- to 15-day suspension on the fifth occurrence. Under the Guidelines, Level 2 offenses include (among others that are not pertinent): 2. Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . .. The Guidelines describe this as a Rule 14(1)(e) violation. Under the Guidelines, Level 1 offenses include (among others that are not pertinent): 6. Engaging in horseplay, scuffling, malicious mischief, throwing things, distracting the attention of others, catcalls or similar types of disorderly conduct. The Guidelines describe this as a Rule 14(1)(k) violation. Although not clear from the evidence, it appears that the references in the Guidelines to paragraph (e) of Section 1 of Rule 14 are incorrect and that the correct references should have be to paragraph (f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order: (1) demoting the Respondent to Public Works Service Worker II; (2) assessing 20 discipline points against him; and (3) suspending him without pay for four days. RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0546 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted. As to the Disciplinary Guidelines, incorporated; otherwise, subordinate and unnecessary. 2.-3. Accepted and incorporated. 4. Rejected as not proven that he was "warned." Otherwise, accepted and incorporated. (The "group counseling" apparently had to do with telling the employees that they were "not paid to think." 5.-6. In part accepted and incorporated; in part rejected as not proven. Accepted but subordinate and unnecessary. Accepted but not within the charges. Rejected as not proven and as contrary to the evidence. (He was asking questions, not testifying or making admissions.) As to crying on the jobsite, accepted and incorporated; as to crying at the hearing, accepted but subordinate and unnecessary. 11.-13. Rejected as not proven and as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and as contrary to the greater weight of the evidence that it was his "only attempt." Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Respondent's Proposed Findings of Fact. (The Respondent submitted a letter with eight unnumbered paragraphs. For purposes of these rulings, the unnumbered paragraphs have been assigned consecutive numbers.) Accepted but subordinate and unnecessary. Accepted and incorporated as to the destruction of tapes. Conclusion of law as to the Respondent's rights. 3.-4. Accepted and incorporated. 5.-8. Argument, subordinate and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 Mr. Craig Reeves 1501 Fredrica Avenue Clearwater, Florida 34616 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
The Issue Barkley has petitioned for the determination of the invalidity of Section 1101.1.3.2-15.i of the LES Personnel Manual. That section provides standards for disciplinary action when an employee commits the offense designated "falsification of records." The issues, therefore, are whether the standard is a rule as defined in Section 120.52(15) F.S. and whether Barkley is substantially affected by the standard. If the answer to both questions is yes, then it necessarily follows that the "rule" is invalid, as the parties have stipulated that the standard was not adopted as a rule.
Findings Of Fact Earnest O. Barkley, Jr. was employed by the Department of Labor and Employment Security in June 1980, and was continually employed until October 13, 1987. At the time of his separation he worked as a Statistician I, a position within the Florida career service system. During the course of his employment Barkley and other employees were given copies of the LES Standards for Disciplinary Action and were told that these would apply in agency discipline cases. The LES Standards for Disciplinary Action comprise section 15 of a much larger LES Personnel Manual. The Forward to that manual provides as follows: FOREWARD The LES Personnel Manual transmits to Managers, Supervisors and employees, the personnel policies and procedures for staff in the Florida Department of Labor and Employment Security. This manual provides direction and information in the areas of retirement, employment and pay administration, attendance and leave, employer/employee relations, employee benefits, labor relations, training and classification and pay. Further, this manual is to be utilized constructively to better manage and enhance the efficiency of the department's human resources. (Respondent's Exhibit #1) The Forward is signed by former DLES Secretary, Wallace E. Orr. The preamble to Section 15 provides as follows: 15. Standards for Disciplinary Action Included below are standards for the administration of disciplinary actions for various types of offenses. The list includes the most commonly occurring offenses and is not meant to be all inclusive. The disciplinary actions for the listed offenses have been established to help assure that employees who commit offenses receive similar treatment in like circumstances. Within each level of occurrence, a range has been provided to allow the supervisor flexibility in selecting appropriate discipline in order to take into consideration mitigating circumstances. * * * (Joint Exhibit #1) According to Floyd Dorn, DLES Personnel Officer and Ken Hart, Deputy Secretary and former General Counsel for 15 years, the disciplinary standards are utilized for precisely the purposes set out in the Forward and in the preamble. The standards are not considered the legal authority nor the basis on which the agency takes disciplinary action. That authority is found in the statutes and rules governing the Florida career service system. The standards are viewed by the agency as guidelines, with specific actions in each case governed by the unique circumstances. The termination letter dated October 13, 1987, does not reference the standard, but rather cites Rule 22A-7.010(7) F.A.C. as authority for the agency's action. The text of the section at issue reveals a wide range of discretion: Falsification of Records Includes misrepresentation, falsification or omission of any fact, whether verbal or written, on such records as, but not limited to: time and attendance (leave) , employment status, employment application, travel vouchers, and work and production. First occurrence Written reprimand to dismissal Second occurrence 3-day suspension to dismissal Third occurrence Dismissal (Joint Exhibit #1) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.56 and 120.57(1) F.S. Subsection 120.56(1) F.S. provides: (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. "Invalid exercise of delegated legislative authority" is defined as "... Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a) The agency has materially failed to follow the applicable rule making procedure set forth in S. 120.54; * * * Subsection 120.52(8)(a) F.S. (1987) The threshold question, therefore, is whether the LES disciplinary standard is a rule. Section 120.52(15) F.S. defines "rule", with certain exceptions, as "... each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. * * * Citing State Department of Administration v. Stevens, 344 So.2nd 290 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance 346 So.2nd 569, 581 (Fla. 1st DCA 1977), the First District Court in State, Department of Administration v. Harvey, 356 So.2nd 323, 325 (1978) explains the definition: Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than "rule." The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," Stevens, [citation omitted] or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't. of Banking & Fin. [citation omitted]. See also Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). Some ten years later these cases are still good law. Both parties rely on Harvey, and on two cases decided by the First District Court of Appeal on the same day in 1981. In Department of Highway Safety v. Fla. Police Benevolent Association, 400 So.2nd 1302 (Petition for cert. den. 408 So.2nd 1093), the Highway Patrol's general orders prescribing standards of physical fitness for patrolmen and guidelines for supervisors in assessing discipline were held not to be rules, since, unlike the "bumping" guidelines in Stevens and the minimum training and experience requirements in Harvey, the general orders were "... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." p. 1303. In Florida State University v. Dann, 400 So.2nd 1304, the document setting forth procedures for awarding merit salaries and other pay increases was held to be a rule, as the procedures were self-executing and were issued by the agency head for implementation with little or no room for discretionary modification. Under the evidence elicited in this case, the LES Disciplinary Standard is not self-executing; it does not, in and of itself create or adversely affect certain rights; and it does not have the direct and consistent effect of law. Like the Highway Patrol's order prescribing disciplinary guidelines in Police Benevolent Assn., supra, the LES Disciplinary Standard is inchoate and unenforceable without the authority of Rule 22A-7.010(7) F.A.C., and Section 110.227 F.S., governing dismissals of career service employees for cause. 19. Section 110.227(1) F.S. (1986) provides: 110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers. Any employee who has permanent status in the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Each agency head shall ensure that all employees of the agency are completely familiar with the agency's established procedures on disciplinary actions and grievances. Rule 22A-7.010(7) F.A.C. provides in pertinent part: Dismissals. A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service. An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; repeated and/or gross substandard performance of assigned duties; insubordination; willful violation of the provisions of law or agency rules; conduct unbecoming a public employee; misconduct, habitual drug abuse, or conviction of a crime involving moral turpitude. Neither statute nor rule specify that falsification of records is just cause. The LES standard therefore, provides guidance to employees and their supervisors that this violation is one that might result in dismissal. This does not, however, make the standard a rule. Depending on the generality of the statute, an agency definition of a statutory term not set forth as a promulgated rule may or may not constitute a "policy" statement. Island Harbour v. Dept. of Natural Resources 495 So.2nd 209, 221 (Fla. 1st DCA 1986). The LES standards satisfy the requirements of Department of Administration Rule 22A-10.003 F.A.C., that agency heads establish "rules and procedures" including ranges of penalties for various types of work deficiencies and offenses to insure reasonable consistency in disciplinary actions. The policy relied upon the agency in this instance is found in the promulgated rules of the Department of Administration and the statute governing dismissals of career service system employees. In each, the non-exclusive examples of just cause are specific enough to compel the conclusion that in certain circumstances falsification of records will constitute just cause for dismissal. Whether those circumstances exist here is a matter for determination in a different proceeding, for rule or no rule, the employee is entitled to a due process hearing de novo on the ultimate question of whether he has been permissibly fired. Rule or no rule, the agency bears the burden of justifying its action. Department of Administration v. Nelson 424 So.2nd 852 (Fla. 1st DCA 1982), and Nelson v. Department of Administration, 424 So.2nd 860 (Fla. 1st DCA 1982). Section 1101.1.3.2.-15.i of the LES Personnel Manual is not a rule and is not subject to the adoption requirements of Section 120.54, F.S. This conclusion determines, as well, the standing of Petitioner in this proceeding. His "substantial effect" flows from the promulgated rules and statute rather than from the broad guidelines found in the personnel manual. Based on the foregoing, it is hereby, ORDERED: That the Petition of Earnest O. Barkley, Jr. be DISMISSED. DONE and ORDERED this 30th day of December, 1987, in Tallahassee, Florida. MARY CLARK 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 30th day of December, 1987. COPIES FURNISHED: Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Dan Turnbull, Esquire Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Donna Poole, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Liz Cloud, Chief Bureau of Administrative Code The Capitol - 1802 Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations contained herein, the Criminal Justice Standards and Training Commission, (Commission), was the state agency responsible for the certification of law enforcement officers in Florida. Respondent, Kenneth E. Beck, was a police officer, certified by the Petitioner, and employed by the City of Clearwater Police Department. In September, 1988, Joyce Ann Cooper Horten, currently of Easley, S.C., was residing in Clearwater, Florida. At that time, she was approximately 16 years old. On the evening in question, two of her friends, a boy and girl, had "egged" a neighbor's apartment and the neighbor called the police. In response to this call, the Respondent came to the scene and was talking to Ms. Horten's friends in back of the house. When he had completed his conversation with them, he told Ms. Horten he had to search her for a knife, and took her into a hallway where he put his hands up under her shirt and around her shoulders and sides. In addition, he touched her legs by putting his hands on both sides of each leg, running them all the way up to the crotch. After this search, Respondent took Ms. Horten into her apartment where he searched for the knife in the kitchen. Finding nothing, he took her into the bedroom, went into her closet, and looked through her clothes as well as through her chest of drawers. Finding nothing, Respondent then had Ms. Horten roll up her skirt from both the back and the front and when she did so, pulled her panties out from the front. When he did this, he could observe her pubic area though he did not touch her there. He then had her roll up her shirt, both in the front and the back. Since she was not wearing a bra, when she rolled up her shirt front, her breasts were exposed to his view. After finishing his search, he gave Ms. Horten his card, with his name on it, and went back outside to talk to the other young people. Ms. Horten did not think that what Respondent was doing to her was appropriate, but claims that since she was not familiar with the law, she did not know she could resist. Nonetheless, she later told her mother and the neighbor who had initially called the police. This neighbor apparently filed a report with the police and Ms. Horten thereafter taped a statement as to the matters previously discussed, a typed copy of which she subsequently signed under oath. At approximately 3:50 AM on April 16, 1989, Tara D. Grey, then a 17 year old college student, was driving her car eastward on Drew Street in Clearwater, Florida when she was pulled over by the Respondent who was in a police cruiser and in uniform. Initially he did not tell her why he had stopped her, but asked for her driver's license and registration, which he took back to his cruiser. After approximately 5 minutes, he came back and told her that her license did not check out and asked for additional identification which, he claimed, did not check out either. Finally, she gave him her social security card which seemed to satisfy him. After an extended series of questions regarding her drinking, her use of illegal drugs, or her prior arrest record, all of which she denied, he required her to get out of her car, after which he administered a sobriety test to her. He then asked if he could search her car, to which she consented. While he conducted the initial search, he asked her to stand behind the car, but then requested her to take the numerous items which were on the car floor out so he could see what he was doing. At time she was wearing a miniskirt and boots, along with a sweater, and when she did what he asked of her, she had to bend over and her skirt came up in the back, giving him a broad view of her posterior. When she finished cleaning out her car to his satisfaction, Respondent asked her with whom she lived and why she had other clothing in the car. After several other questions, he finally told her, after about 45 total minutes of interview, that she had been stopped because she was speeding. He then indicated he would have to follow her to her friend's home, (the place to which she was in progress when stopped), and kept her license while he followed her there. Before he allowed her to go into the house, he indicated he would have to frisk her, and in doing so, had her put her hands up on the top of his car. He then ran his hands across her shoulders and across her hips and bottom, but did not touch either her pubic area or her breasts. He also checked her socks and in doing that, felt her legs down in that area but did not run his hands up over her bare legs. After finishing the frisk, he drove off and Ms. Grey went into her friends's home. In April, 1990 Louise Ann Frattaruolo, Respondent's former mother-in- law, received a letter through the mail which, when opened, indicated that her husband had broken his word and must pay the penalty. The letter then went on to indicate that all the Frattaruolos must die. This letter was unsigned, but Mrs. Frattaruolo turned it over to her daughter, a police officer, who released it to the Clearwater Police Department. A latent fingerprint was developed on the envelope in which the letter was sent, which was subsequently analyzed and determined to be that of the Respondent. From the date of the postmark on the letter, the day it was mailed, to the day the fingerprint identification was made, there was absolutely no opportunity for Respondent to have handled either the letter or the envelope. Therefore, it is concluded that the envelope containing the letter was at least touched by the Respondent prior to mailing, and was most likely mailed by him. On October 30, 1990, Patrick J. Lombardi was working as a security officer at the Clearwater Mall and was approached by a man and lady who pointed out an individual allegedly exposing himself on a bench within the mall. Mr. Lombardi got his supervisor, Mr. O'Dell, and both officers observed an individual, subsequently identified as the Respondent, sitting on a bench, wearing bright yellow jogging shorts that were split up the sides. They observed him sitting in such a manner whereby whenever a woman or a group of women walked by, he would open his legs and then slap them together, and both officers observed that when he did this, his genitalia, which had been released from the inner lining of his shorts, would fall out onto the bench. To insure they were not making a mistake, the two officers went to one of the jewelry stores in the mall and contacted Janine M. Edwards, a clerk who they asked to walk by the individual and tell them what she observed. When she did so, she observed the Respondent open his legs and expose himself to her. She noted that the liner of his shorts had been pulled to one side allowing his penis and testicles to be fully exposed. She also observed Respondent do this in front of a couple, and she is convinced it was not accidental. Respondent appeared nervous and when she first saw him, he was hunched over. When he saw her, however, he turned toward her and opened his legs to show her his private parts. It is concluded, therefore, that his actions were intentional. Shortly thereafter, Respondent was observed by a mall employee leaving the mall and getting into a blue Ford automobile. The employee got the license number of the vehicle which was subsequently traced to the Respondent. Thereafter, Sgt. Joseph Tenbieg, of the Clearwater Police Department, put together a package of 5 or 6 photographs of individuals, including Beck, all of whom resembled the Respondent, which he showed, independently, to Officers O'Dell and Lombardi, as well as to Ms. Edwards. All three identified the photograph of the Respondent, which was taken from his police personnel records, as the individual who was exposing himself in the mall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered revoking the Respondent, Kenneth E. Beck's certification as a law enforcement officer. RECOMMENDED this 29th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of April, 1991. COPIES FURNISHED: Elsa Lopez-Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kenneth E. Beck 28 Valencia Circle Safety Harbor, Florida 34695 James T. Moore Commissioner Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent Petras Jakstas committed the violations alleged in the Termination and Dismissal Notice, and, if so, the appropriate discipline that should be imposed.
Findings Of Fact The City is a municipality governed by a city council. A city manager oversees the City’s operations. On January 22, 2007, Respondent was hired as a Parks Service Technician I. He successfully completed the Parks Service Technician Apprenticeship Program and was promoted to his current classification of Parks Service Technician II on February 2, 2008. Respondent’s job responsibilities include, but are not limited to, the collection of trash and the emptying of trash receptacles. Respondent is a native of Lithuania. While Respondent does not speak “perfect English,” the record indicates that Respondent speaks and understands English at a level of proficiency which allows him to function in an environment where only English is spoken or written without the necessity of an interpreter. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the Clearwater Civil Service Board Rules and Regulations (Civil Service Rules) provides the framework for suspending, demoting, and dismissing City employees. Chapter 13, section 6 of the Civil Service Rules, provides that the “City Manager or designee may discharge an employee for one or more of the causes listed under Section 3 of this Chapter or in accordance with the established performance and behavior management program . . . or for other good cause.” On or about March 20, 2018, Respondent received from the City a termination and dismissal notice advising that his employment with the City of Clearwater was being terminated effective “Wednesday, March 21, 2018, at the end of the day.” The notice of termination and dismissal cites the following violations as cause for the termination of Respondent’s employment: Personal Responsibility Standards, We will follow all City policies and procedures. We will comply with all City and our respective Department, division, and section rules and standard operating procedures. We will cooperate and participate in City processes. We will resolve to accept personal accountability and responsibility for our actions. We will perform our work assignments with established standards and comply with written or verbal instruction from the supervisory or management group. Integrity Standards, Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations. Excellence Standards, We will treat everyone with dignity, respect, and courtesy. We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. The notice of termination and dismissal, in addition to the generally referenced “Integrity Standards” violation, also specifically provides that Mr. Jakstas violated Civil Service Rules, chapter 13, section 3, to wit: (b) Failure to perform satisfactorily within established guidelines. (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. (g) Commitment of or participation in any activity or action which undermines public confidence or otherwise significantly impairs the employees’ ability to perform his/her job productively. (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to established rules, regulations, or guidelines. The gravamen of the charges against Respondent derive from his alleged violation of Civil Service Rules, chapter 13, section 3(b), (e), (g), and (l). The City’s current proceeding against Respondent is as a result of Respondent’s flirtatious statement to a current female City employee, which occurred while Respondent was working under a “Development Plan,” which was implemented because he harassed a former City employee and used City property while doing so. PERFORMANCE & BEHAVIOR MANAGEMENT PROGRAM The City developed its PBMP in order “to provide a method of working with employees whose performance or behavior does not meet the City’s standards.” The philosophy of the program “is based upon the belief that, in most cases, employees can change behavior and improve performance when standards and expectations are clear and when employees are given opportunities to change.” Whenever practicable, “the City will provide intervention, coaching, and corrective guidance or counseling . . . for employees . . . in order to bring their performance or behavior up to standard.” The program recognizes, however, “that some behaviors that are serious and are direct violations of City Policy may warrant immediate disciplinary action up to and including termination.” According to the PBMP manual, there are three categories of performance and behavior: Personal Responsibility, Integrity, and Excellence. As to each, the manual notes that: These categories are based on employees’ willingness or ability to meet standards of behavior or performance. Willingness refers to the employees’ decision to meet expectations, follow rules and policies, and perform work that meets efficiency and quality standards. Ability refers to the employees’ capability and skills in performing job tasks. The first two categories, Personal Responsibility and Integrity, are considered “will do” categories because they typically involve situations wherein the employee has a choice and makes a decision about whether or not to meet the standards. The third category, Excellence, is considered a “can do” category, because it most often refers to a situation where the employee is not able to perform up to standard because of a lack of resources, skill, or capability. City of Clearwater expectations for each of these three categories are stated below. Personal Responsibility (“Will Do” Issues) City of Clearwater employees will be held personally accountable for the actions they take in meeting the customer service needs of the City and the community the organization serves. Employees are expected to take full responsibility for their conduct and job performance and exhibit commitment to fulfilling their responsibilities to the best of their ability. Integrity (“Value and Ethics” Issues) As public employees representing the citizens of Clearwater, employees are expected to commit to the highest standards of personal and professional integrity. The City expects employees to communicate openly and continually demonstrate honesty, fairness, and respect for others. Employees should do what is ethically appropriate. Employees are expected to adhere to City policies. Excellence (“Performance/Can Do” Issues) City of Clearwater employees have an obligation to provide the highest quality of service and results to our customers. This commitment to excellence involves developing the job knowledge and skills needed to perform the tasks required and to continually improve the City’s ability to meet the needs of the community we serve. The PBMP manual generally lists 75 Personal Responsibility Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding the Integrity Standards, the PBMP manual notes in bold print that “immediate formal discipline, up to and including termination, may be recommended” for a violation of these standards. The PBMP manual does not set forth any such illumination for the other standards. As previously noted, certain PBMP standards are referenced in the termination and dismissal notice provided to Respondent by the City. THE DEVELOPMENT PLAN The initial step of PBMP entails supervisor coaching and counseling of employees as a strategy for helping employees to meet supervisor, department, or City expectations or standards. In instances where an employee has committed a serious offense of the PBMP standards and expectations, the City may place an employee on a development plan, a decision-making leave without pay, or both. On October 23, 2017, Respondent was placed on decision-making leave without pay for the two-day period of October 24 and 25, 2017. On October 26, 2017, when Respondent returned to work he was placed on a development plan. Both actions resulted from an incident involving former City employee Ms. Kelsey Souto. Ms. Souto previously worked for the City, and during the course of her employment Respondent developed a physical attraction to her. There is no evidence suggesting that Ms. Souto was in any way interested in Respondent. Sometime around the early part of 2017, Ms. Souto relocated from Florida to Idaho. The undisputed evidence is that Respondent tracked Ms. Souto’s whereabouts and began to send her letters, jewelry, and at one point, he even mailed her a rooster. Ms. Souto found Respondent’s behavior to be extremely upsetting as evidenced by the Petition for Protective Order that she swore- out against Respondent wherein she requested, on or about August 24, 2017, that the District Court for the State of Idaho enjoin Respondent from engaging in “malicious harassment, stalking, [and] telephone harassment.” On September 28, 2017, Respondent submitted to the City a request for vacation days and included therewith a notice of hearing regarding the Protective Order that was filed against him by Ms. Souto. The hearing was scheduled for September 29, 2017. Respondent attended the hearing in Idaho and “agreed to entry of a protection order.” The exact date is not clear from the record, but it is undisputed that sometime between September 28, 2017, and October 26, 2017, the City learned two things from Respondent. First, the City learned that Respondent used a City of Clearwater Parks and Recreation envelope to mail a letter to Ms. Souto as part of his campaign of harassment against her; and second, the City learned the full details of Respondent’s harassment activities directed towards Ms. Souto. Given this information, on October 26, 2017, the City, pursuant to its PBMP, placed Respondent on a written development plan. The development plan contains a section titled “Specific Examples of Behavior or Performance Observed (completed by Supervisor).” In this section, Respondent’s supervisor noted the following with respect to the circumstances surrounding Respondent’s interaction with Ms. Souto: Approximately one year ago, your manager was contacted by the owners of the beach concessions, Mr. and Mrs. Chandler, to inform him that you were showing an interest in one of their workers, but she was not interested in you. You were persistent with this female and you had sent her a gift of a wedding ring by mail. When the Chandlers contacted your manager, they stated they did not want to make a formal complaint with the City, but wanted to speak with you about the situation and return the ring. The City has learned that despite this female moving out of state, you have continued to pursue her. On Thursday, September 28, 2017, you turned in a vacation request to your supervisor along with a notice of hearing for a protection order filed against you in the District Court of the Fifth Judicial District of the State of Idaho. This protection order was filed by the female who formerly worked for a beach concessions and it cited malicious harassment, stalking, telephone harassment as the reasons for her petition to the court. The petitioner described in the protection order that she met you while she worked as a manager at Barefoot Beach House on Clearwater Beach. She explained that City employees were provided free soft drinks by an established lease agreement and you as well as other City employees, would go to the restaurant for that reason. She further explained that beginning approximately five years ago, you would regularly bring her candy, gifts, and treats and she would often politely decline your offerings or put them out for all her employees. She stated that you would come in several times throughout your workday waiting in long lines, just so that she could wait on you. The petitioner stated that she moved to Idaho in 2016 and somehow you obtained her contact information on-line and you began sending her certified letters about every other month. Additionally, she said at Christmas time she received a diamond ring and gold necklace from you of which she returned to you. Most recently, on August 23, 2017, she stated that she received notification from the post office that you had sent her a live rooster as she recognized your handwriting on the notice and card. She further described that you sent her emails and text messages, so she blocked your phone number. On October 4, 2017, your supervisor was provided a copy of a City of Clearwater Parks and Recreation envelope [which] shows you used City material to mail her a certified letter on August 15, 2016. When meeting with your Director, you admitted to using City materials for personal use and acknowledged it was a bad thing to do however; you did not take full responsibility of the seriousness of your inappropriate behavior and conduct which led to the protection order filed against you, stating that you “were only trying to have fun. Based on the information involving Ms. Souto, the City specifically identified in Respondent’s development plan certain standards and expectations that Respondent had not met, including the following: “We will treat everyone with dignity, respect, and courtesy; [w]e will present a professional image through actions, dress, speech and behavior; and [w]e will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes.” Reference in the development plan to these specific standards and expectations, as well as inclusion of an extensive narrative regarding his harassment of Ms. Souto, put Respondent on notice that future instances of conduct of a similar nature would not be in compliance with the terms of his development plan. The development plan contains a signature line where the employee is to sign. Below the employee’s signature line is the following statement: “My signature indicates I have read and understand the Development Plan outlined above, and agree to comply with all City standards and policies, although I may not agree that a violation has occurred.” Respondent signed the development plan on October 26, 2017. The development plan notes that its duration is for six months. In addition to signing the development plan, Respondent also wrote the following on the plan: “I will not misuse City prop[erty] again. No mean no! Sorry I recognize my fault! I will make better choices in my life. I recognize my fault.” SEA BLUES FESTIVAL On Saturday, February 24, 2018, Respondent was working at the Sea Blues Festival, which is a cultural event sponsored by the City. Madai Gutierrez, who is employed by the City as a recreation specialist, also worked the festival on that date. Ms. Gutierrez’ job responsibilities involve overseeing matters related to patron ticketing and gate operations. Her job duties do not include overseeing or otherwise supervising Respondent or workers who are similarly classified. Ms. Gutierrez’s credibly testified that on the day in question, while in the backstage area of the festival, Respondent summoned her to the area where he and a coworker were picking up trash. Ms. Gutierrez, thinking that Respondent had an inquiry about a matter pertaining to the event, walked over to Respondent where he told her, “You’re so beautiful. You have the eyes like an eagle.” Respondent’s statement to Ms. Gutierrez was a discourteous statement that lacked dignity and respect, the statement failed to comport with the development plan goal of maintaining a professional image through “speech,” and by making the statement, Respondent demonstrated a failure to modify his behavior as required by the development plan. Respondent’s statement to Ms. Gutierrez was sufficiently similar in character to the conduct Respondent displayed towards Ms. Souto. Mr. Gutierrez testified that Respondent’s statement made her feel “weird and creepy,” and she immediately left the area after hearing the same and went to her ticketing trailer. On the day of the incident, Ms. Gutierrez reported Respondent’s conduct to her supervisor. On Monday, February 26, 2018, she then prepared a written statement detailing her interaction with Respondent. Respondent admits that he spoke to Ms. Gutierrez but states that it “was about work.” (Tr. 200:9) In further explaining himself, Respondent testified, “I told them that I never said in this way and -- and that we were talking about -- strictly about work.” (Tr. 200:16-18). In this statement, Respondent is referring to his conversation with Ms. Gutierrez on February 24, 2018. At the time of his interaction with Ms. Gutierrez, Respondent was still working under the limitations of the development plan and this would certainly provide sufficient motivation for Respondent to not be truthful regarding his interaction with Ms. Gutierrez. Ms. Gutierrez testified that on occasion she will instruct a City worker whose job includes responsibility for trash collection to empty an overflowing trash receptacle. However, Ms. Gutierrez specifically testified with clarity and certainty that at no time during the Sea Blues Festival did she ever instruct Respondent, or any other trash worker, to empty a trash can. Ms. Gutierrez’s testimony regarding what was said to her by Respondent is found to be more credible than Respondent’s denial. Respondent’s assertion that he had a “work-related” conversation with Ms. Gutierrez on February 24, 2018, is not credible and is rejected. I NEED AN INTERPRETER Respondent claims that the City knew that he needed a language interpreter but failed to provide one during the discipline determination meeting resulting from the incident involving Ms. Gutierrez. The job position occupied by Respondent is covered by the Agreement between City of Clearwater, Florida, and Communications Workers of America, Local 3179 (Fiscal Years 2017–2018) (collective bargaining agreement). Article 11, section 4 of the collective bargaining agreement provides, in part, that “[w]henever an employee who is a Union member is noticed of any meeting that could result in discipline, the employee will be granted a minimum of two (2) business days before the meeting to arrange for Union representation.” The right to union representation at any such meeting is commonly referred to “Weingarten” rights. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). On March 7, 2018, the City informed Respondent that a discipline determination meeting was scheduled for March 14, 2018, to discuss the alleged incident involving Ms. Gutierrez and its possible impact on his continued employment with the City. Respondent attended the meeting along with his union representative Phil Hughes of the Communications Workers of America. There are no provisions in the Civil Service Rules, the PBMP manual, or the collective bargaining agreement, which require the City to provide a foreign language interpreter for an employee who is represented by his union at a disciplinary meeting. Respondent cites no authority in support of his contention that the City was obligated to provide him with such services and furthermore there is no factual basis in the record otherwise indicating that Respondent even requested such services from the City once the current termination and dismissal proceedings commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the City of Clearwater enter a final order terminating Mr. Jakstas’ employment. DONE AND ENTERED this 12th day of December, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 12th day of December, 2018. COPIES FURNISHED: Edward C. Castagna, Jr., Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 (eServed) Owen Kohler, Esquire City of Clearwater 112 South Osceola Avenue Clearwater, Florida 33756 (eServed) Nichole A. Kerr, Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 Ted Starr, Esquire Starr Law Offices 8181 U.S. Highway 19 North Pinellas Park, Florida 33781 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, on May 6, 1996, as a Code Enforcement Officer. Almost ten years later, on March 28, 2006, Respondent suspended Petitioner for five days for violating City of Gainesville Personnel Policy 19, Rule 19, by providing a false sworn affidavit attesting that a particular property was in compliance with an Order of the Code Enforcement Board when the property was not in compliance. Additionally, the Petitioner received a written warning and counseling regarding a violation of City of Gainesville Personnel Policy 19, Rule 13, which consisted of neglecting to perform a required re-inspection of a property for a period of several months. Petitioner’s work as a Code Enforcement Officer involved “responsible inspection work enforcing compliance with the City Codes and Ordinances pertaining to zoning, housing, landscaping, street graphics, lot clearance, junk vehicles, and related codes and ordinances.” On December 30, 2004, Petitioner received a complaint regarding violations of the housing code at 220 South East 1st Street, Gainesville, Florida. After inspecting the property further on January 5, 2005, Petitioner issued the owner a notice of violation allowing the owner until February 5, 2005 to remove non-operational vehicles and junk, trash and debris from the property. Petitioner re-inspected for compliance on May 16, 2005, when he found the property to be in non-compliance with the notice. Respondent states that Petitioner referred the case to the City of Gainesville Code Enforcement Board, and it was docketed as case number CEB2005-106. The City of Gainesville Code Enforcement Board is a quasi-judicial board created by the City of Gainesville pursuant to Florida Statutes Chapter 162 and City Code of Ordinances Chapter 2. The Code Enforcement Board is charged with hearing cases of alleged violations of the City’s Code. The Code Enforcement Board heard the case on June 9, 2005, found the owner guilty of the violation, and allowed the owner until July 13, 2005 to bring the property into compliance. On August 11, 2005, Petitioner made notes in the file to the effect that the matter had gone to the Code Enforcement Board and that he would “inspect for compliance with [the] order when time is up.” No other case-related activity was noted by the Petitioner in the time period between the Enforcement Board hearing on June 9, 2005, and Petitioner’s alleged January 4, 2006 inspection which led to the Affidavit of Compliance issued by Petitioner on January 6, 2006. On January 4, 2006 Petitioner noted in the file that the property was in compliance and later executed the Affidavit of Compliance before a licensed Notary Public after being duly sworn. Petitioner swore under oath in that Affidavit that the corrective action ordered by the Board had been taken. In February 2006, a new complaint regarding the above- referenced property was made to the Code Enforcement Division. The new complaint was reported by multiple sources. Code Enforcement Supervisor David Watkins investigated the February 2006 complaint. Watkins found the property not in compliance and deduced that Petitioner filed the affidavit a month earlier with the knowledge that the compliance sworn to in the Affidavit had not been achieved. Watkins’ determination is corroborated by photographic evidence presented at the final hearing and establishes that the property was not in compliance at the time of Petitioner’s affidavit. Watkins summarized his investigation and findings in a detailed Supervisory Report. He also learned from an interview with the owner of the 220 South East 1st Street property that the owner did not believe he had come into compliance with the order. Petitioner’s false affidavit misrepresenting the facts of case number CEB2005-106 permitted the violator to evade the penalty prescribed by the Code Enforcement Board of $250 a day for a period of 175 days or an accumulated fine of $43,750. Petitioner was issued an Employee Notice on March 28, 2006 for violation of City of Gainesville Personnel Policies and Procedures, Policy 19, Rules 19 and 13, resulting in a five-day suspension without pay. Policy 19, Rule 19, prohibits “immoral, unlawful, or improper conduct or indecency, whether on or off the job which would tend to affect the employee’s relationship to his/her job, fellow workers’ reputations or goodwill in the community.” The minimum disciplinary action provided for a first violation of Rule 19 is instruction and five day suspension or dismissal.” Policy 19, Rule 13 prohibits “productivity or workmanship not up to required standard of performance.” The minimum disciplinary action provided for a first violation of Rule 13 is “written instruction & cautioning.” Pursuant to the established procedure, Petitioner challenged the suspension through the three-step grievance process and was afforded the opportunity to present evidence and argument to the division manager, department head, and the City Manager’s Office. The disciplinary action was sustained at each level. Petitioner compared his case to a case handled by a white code enforcement officer where that officer was not disciplined. In response to Petitioner’s allegations, Watkins reviewed the case referenced by Petitioner to determine possible existence of violations similar those committed by the Petitioner. No evidence was discovered by Watkins to support Petitioner’s allegations. The allegations raised by Petitioner against his fellow code enforcement officer were not supported at the final hearing through proof of execution of a false affidavit by a similarly situated white employee. The City has had no cases of similar offenses within the memory of current management and no record of past cases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 19th day of July, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 19th day of July, 2007. COPIES FURNISHED: Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Walter Booth 2810 Northeast 13th Street Gainesville, Florida 32609 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether just cause exists for the termination of the Respondent's employment by the Petitioner.
Findings Of Fact At all times material to this case, Gary Ellerson was employed as a Police Aide II by the City of Clearwater Police Department (Department). The position held by Mr. Ellerson is classified as a permanent part- time and is subject to the City of Clearwater Civil Service Rules. At some time during his employment with the Department, Mr. Ellerson has also worked for the "NuCops" program, a part of the federally-funded "Americorps" project. One of Mr. Ellerson's NuCops assignments was to provide assistance to a regularly scheduled Boy Scout meeting. Although on one occasion the Department funded Mr. Ellerson's attendance at a NuCops training program, the NuCops program is not funded or operated by the Department. At some point immediately prior to April 1, 1995, Mr. Ellerson sought permission from Lt. Frank Daly, a superior, to work as a Police Aide with the Boy Scouts on April 1, 1995. Lt. Daly approved the request, contingent on the further approval of Police Aide Lead Worker Chris Corino and Police Sergeant Heinz. Based on Lt. Daly's approval, Mr. Ellerson obtained the approval of Mr. Corino and Mr. Heinz. Mr. Ellerson did not advise Lt. Daly that the April 1 Boy Scout meeting was part of his regularly assigned NuCops duties. Lt. Daly testified that had Mr. Ellerson identified the Boy Scout meeting as part of his NuCops assignment, the request to include it on Mr. Ellerson's Department time sheet would not have been approved. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 1, 1995, Mr. Ellerson reported working the same hours to both employers. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 4, 1995, Mr. Ellerson reported working the same hours to both employers. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 10, 1995, Mr. Ellerson reported working the same hours to both employers. There is no evidence that Mr. Ellerson sought or received the Department's permission to include the April 4 and 10 Boy Scout meetings on his Department time sheets. There is no evidence that Mr. Ellerson worked for the Department during the hours reported on the time sheets for the dates cited herein. On the three relevant dates, Mr. Ellerson attended a meeting of Boy Scouts, a duty of his employment with the NuCops program. Department time sheets contain a signature line where the employee attests to the truth and correctness of the hours reported. Mr. Ellerson signed the statement on the relevant time sheets. The Department conducted an investigation of the erroneous time sheets. During the investigation, Mr. Ellerson asserted that he listed "training" hours and "studying" hours separately. Review of the time sheets fails to support the assertion. There is no evidence that Mr. Ellerson had differentiated such hours on prior time sheets. The Petitioner asserts that after the April 1 incident, Mr. Ellerson was told by Police Aide Lead Worker Chris Corino not to include the NuCops/Boy Scout time on his Department time sheets and that Mr. Ellerson failed to follow the directive. Mr. Corino did not testify at the hearing. Mr. Ellerson denies he was told by Mr. Corino that his time sheet was improper. Because there is no non-hearsay evidence which could establish that Mr. Ellerson was specifically told not to include the Boy Scout program on his Department time sheets, the assertion is rejected. Mr. Ellerson has been previously disciplined by the Department for failure to obey orders (resulting in a written reprimand) and for tardiness and absence from duties (resulting in a one day suspension.) The evidence establishes that based on the facts of this case, the appropriate disciplinary action is termination of employment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the City of Clearwater Civil Service Review Board enter a Final Order terminating the employment of Gary Ellerson. DONE and ENTERED this 8th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 8th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4250 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a proposed recommended order. COPIES FURNISHED: H. Michael Laursen Human Resource Director City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Leslie K. Dougall-Sides, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Mr. Johnny Long, Representative c/o Mr. Gary Ellerson (address of record)
The Issue Whether Florida Administrative Code Rule 69B- 211.042(17)(b)1. constitutes an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(b) and (c), Florida Statutes (2010), for the reasons stated in the Corrected and Amended Petition for Administrative Determination of the Invalidity of Administrative Rule.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing public adjusters. See §§ 626.022(1); 626.112(1)(a) and (3); 626.171(a), Fla. Stat. Mr. Jaramillo is currently employed as an estimator by FRI Public Adjusters, d/b/a Epic Group Public Adjusters, where he has worked off and on since 1995. He earns approximately $42,000.00 per year. A public adjuster apprentice working for this firm earns $150,000.00 to $200,000.00 per year, and a public adjuster could earn up to $500,000.00. Mr. Jaramillo pled guilty to, and was convicted in the federal District Court of the Southern District of Florida of, the felony of conspiracy to possess with intent to distribute cocaine. The conviction was entered on June 2, 1999, and Mr. Jaramillo was sentenced to 87 months in federal prison. Mr. Jaramillo's supervised release was terminated on November 25, 2009. On January 7, 2009, Mr. Jaramillo submitted to the Department an application for a new public adjuster apprentice license. He disclosed his criminal conviction in the application. On February 4, 2009, the Department sent Mr. Jaramillo a letter in which it advised him that it could not process his application because of certain deficiencies. Such a letter is known in the Department as a "deficiency letter." In the February 4, 2009, deficiency letter, the Department stated that, in order for his application to be considered complete, Mr. Jaramillo needed to provide the Department certified documents relating to his arrest and conviction, including a document showing that his civil rights had been restored, and with a copy of a $50,000.00 surety bond. In a letter to the Department dated April 8, 2009, Mr. Jaramillo enclosed, among other things, a copy of his Restoration of Civil Rights Application, dated March 31, 2009, and a copy of his application for a $50,000.00 surety bond. On or about June 17, 2009, Mr. Jaramillo provided the Department with a copy of a Public Adjuster’s Surety Bond in the amount of $50,000.00. In a second deficiency letter, dated June 24, 2009, the Department again requested that Mr. Jaramillo "provide evidence that [his civil rights] have been restored with a certified copy of [an] applicable law enforcement agency form attesting that civil rights have been restored." In a third and final deficiency letter, dated September 3, 2009, the Department again requested evidence that Mr. Jaramillo's civil rights had been restored. Mr. Jaramillo did not, and could not, provide such evidence because his civil rights had not yet been restored. Because Mr. Jaramillo did not provide documentation that his civil rights had been restored, the Department considered his application incomplete, and the application was closed on April 10, 2010, due to inactivity. The Department has not, as of the date of the final hearing, denied Mr. Jaramillo's application, although it prepared a draft denial letter dated January 14, 2010. The Department does not deny licensure applications that are incomplete because having a denial of such an application on an applicant's record could have an adverse impact on his or her chances of having a future application granted.
