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 the Petitioner, Fletcher Armour, should have been suspended by the Respondent, City of Clearwater, for a three-day period.
Findings Of Fact The Petitioner is an employee of the City of Clearwater and was at the time pertinent to this hearing a meter reader for the city. He was suspended for a period of three (3) days beginning July 31, 1979, and ending August 2, 1979, for insubordination and a serious breach of discipline. In February, 1979, Petitioner Armour and his superior, Fred W. Lewis, Accounts Supervisor, discussed the Petitioner's planned vacation. The Petitioner requested six (6) consecutive days: June 28 and 29, 1979, for religious reasons, plus the following four (4) days. Although tentative written approval was given by Lewis, he warned the Petitioner that if a meter reader with seniority requested the same four (4) "non-religious" vacation days Lewis would have to accede to the request for the reason that there is a seniority policy in the Utilities Department of the City of Clearwater, and further that the department could not properly function with two (2) meter readers on vacation at the same time. Lewis told the Petitioner that the two (2) vacation days requested for religious purposes, June 28 and 29, would be granted regardless of seniority. Subsequent to this first meeting, a Mr. Henderson, a meter reader with seniority over Petitioner Armour, requested the same four (4) days desired by the Petitioner. To resolve this conflict of vacation schedules, Lewis called a meeting during early June, 1979, at which all meter readers were present, including Kim Kyler, a witness for Respondent at the hearing. According to the testimony of Lewis and Kyler, Lewis asked Petitioner Armour during the meeting what days he wanted to take off. Petitioner responded by stating he would take his first two (2) vacation days (June 28 and 29), but not the last four (4) days, and that he would postpone taking these four (4) days until sometime in December when he had two (2) weeks. He was then told that he was not entitled to two (2) weeks until after January 1, and therefore could not take the requested four (4) days in December. Lewis thereupon documented the vacation schedules of Petitioner Armour and Henderson accordingly, giving Henderson the last four (4) days he desired and had theretofore requested. Witness Kyler corroborated the testimony of Lewis. Petitioner Armour took off the four (4) days following the two (2) days leave granted that he had requested in February but was denied in June.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the three (3) days suspension of the Petitioner, Fletcher Armour, by the Respondent, City of Clearwater, be sustained. DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Rick Griesinger, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518 Mr. Fletcher Armour 535 Fairwood Avenue, #230 Post Office Box 794 Clearwater, Florida 33518
The Issue The issue in this case is whether a single sentence in Florida Administrative Code Rule 61E14-2.001(5), which provides that a licensee "shall be deemed responsible" for the misconduct of his agent, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact At all times relevant hereto, Sammie Rayner, Respondent, was employed by the City of Clearwater as a customer service representative in the utility department. On February 11, 1992, Respondent needed to take her daughter to Seminole High School for a test and mentioned this to Joyce Griesel, Senior Customer Service Representative. The only city employees in the customer service section with authority to grant Respondent permission to leave the building on February 11, 1992, were John Scott, Utility Consumer Response Manager and Tim Bissonnette, Customer Service Supervisor. On the afternoon of February 11, 1992, Bissonnette was out of the office attending a conference; however, Scott was available. Bissonnette was Respondent's immediate supervisor, and Scott was over Bissonnette. Prior to October 1991, the Senior Customer Service Representative had authority to allow customer service representatives to leave the building for short periods. However, because of an incident in October 1991, this authority was removed from the Senior Customer Service Representative, and all employees were advised of the changed policy. Although Respondent denies that she was told that only Scott and Bissonnette could grant permission to leave the building, she did ask if Bissonnette was available before she departed the office around 3 p.m., on February 11, 1992. Respondent also contends that she asked Giesel for permission to leave, but Giesel denies that she gave such authorization, knowing full well that she had no such authority. Respondent was not given permission to leave the building on February 11 by Giesel.
Findings Of Fact In recommending that the Public Employees Relations Commission uphold HRS' demotion of petitioner Linda Cook Allen, PERC Hearing Officer Rix wrote: In the instant case, HRS demoted Allen without conducting a special performance appraisal as required by rule 22A-9.009. Rather, Allen was demoted pursuant to HRS Regulation No. 60-10 Section 5(a)(2). This section provides that: As related to this regulation, an employee shall not be demoted as a form of disciplinary action. Rather, this type of action may be used to remove an employee from his class when the employee fails to perform his assigned duties at a satisfactory level. There must be specific documented reasons for such demotion supported by employee performance appraisals and/or documented counseling sessions. See (Exhibit A-10). In short, Powell evaluated Allen's performance over a nine- week period and then initiated action to demote Allen because Powell perceived that Allen was not carrying out her job duties competently. The evidence demonstrates that Powell conducted several counselling sessions with Allen over the nine-week period, which Powell documented pursuant to the above-cited regulation. Recommended Order, page 11. Adopting the Recommended Order, PERC upheld petitioner's demotion from pay grade 19 to pay grade 15, on account of numerous performance deficiencies. The letter HRS sent Ms. Allen notifying her of her demotion made no mention of HRS Regulation No. 60-10. HRS does not have any policy or general practice to rely on "documented counseling sessions" in lieu of employee evaluations before demotions. On September 17, 1990, HRS had in fact prepared a written employee appraisal detailing petitioner's derelictions as a protective investigator, HRS Exhibit No. 3, but petitioner prevailed on a grievance she pursued in connection with the evaluation.
Recommendation It is, accordingly, ORDERED: The petition for administrative determination of rule by hearing officer is denied. DONE and ENTERED this 26th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1992. APPENDIX Petitioner's proposed finding of fact No. 1 was neither established nor refuted. Petitioner's proposed findings of fact Nos. 2 through 7 and 11 through 15 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 8, 9 and 10 are properly conclusions of law. Petitioner's proposed findings of fact Nos. 16, 17 and 18 pertain to subordinate matters. COPIES FURNISHED: James C. McCarty, Esquire P.O. Box 2883 Gainesville, FL 32602 Robert L. Powell, Sr., Esquire Department of Health and Rehabilitative Services 407 Building One 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
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
