The Issue The issue in this case is whether the City of Clearwater properly dismissed Respondent, Diane C. Hashil, from her employment as a Toll Booth Attendant for inefficiency in the performance of duties, in violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater.
Findings Of Fact Respondent, Diane C. Hashil, was employed as a Toll Booth Attendant at the Sand Key Tollbooth by Petitioner, City of Clearwater, (the City), from July of 1992 until May 24, 1995. During the course of Respondent's employment with the City, Respondent has been the subject of numerous disciplinary actions, resulting in counseling, written reprimands, and suspensions. Beginning on December 6, 1993, and continuing through May 24, 1995, twelve disciplinary actions were taken against Respondent for charges including repeated discourtesy to customers, insubordination, failure to comply with verbal instructions, failure to follow policies regarding nonpayment of tolls, and entering the cash drawer of another employee without permission. Respondent's disciplinary action history includes the following actions: 1) On December 7, 1993, Respondent received a written warning for a Level 4, #2 offense (insubordination); 2) On December 21, 1993, Respondent was suspended for two days for a Level 2, #2 offense (discourtesy); 3) On January 26, 1994, Respondent was suspended for three days for a Level 2, #2 offense (discourtesy); 4) On August 10, 1994, Respondent received a letter of reprimand for a Level 1, #1 offense; 5) On January 12, 1995, Respondent received a letter of reprimand for a Level 4, #2 offense (insubordination); 6) On January 17, 1995, Respondent was given a letter of reprimand for a Level 2, #1 offense; 7) On March 9, 1995, Respondent was suspended for two days for a Level 3 offense (productivity); and, 8) On March 15, 1995, Respondent was suspended for five days for a Level 4, #2 offense (insubordination). In April of 1994, Respondent's employment with the City was terminated; however, the City reversed this decision, and Respondent subsequently remained in her position. On November 1, 1994, Respondent received an unsatisfactory performance evaluation. The primary basis for this evaluation was Respondent's continued discourtesy to patrons which had resulted in disciplinary actions against Respondent during the evaluation period. The City's employee performance ratings policy requires that an employee receiving an unsatisfactory rating be reevaluated in three months. On February 13, 1995, at her three-month follow-up reevaluation, Respondent again received an unsatisfactory performance rating. The basis for this evaluation was that Respondent had received repeated reprimands for insubordination, failure to follow rules, and entering the cash drawer of another employee without permission. On March 9, 1995, as a result of her unsatisfactory reevaluation, Respondent received a two-day suspension, and twenty disciplinary points. On March 15, 1995, Respondent was suspended for five days for insubordination. Respondent's appeal of these suspensions was upheld through the City Manager stage. Respondent did not seek further review of these suspensions. On May 5, 1995, at her second follow-up reevaluation, Respondent again received an unsatisfactory performance rating. Under the City's policy this unsatisfactory rating was automatic because Respondent had been suspended for five or more days during the rating period. In addition the second follow-up performance evaluation stated that Respondent filed a false police report alleging a customer had defrauded her, that Respondent entered the cash drawer of another employee without permission, and that Respondent was responsible for low morale of the other employees at the Sand Key Tollbooth. Respondent admits that she entered the cash drawer of another employee without permission, and that she kept a daily log of the activities of other employees which contributed to the low morale at the Sand Key Tollbooth; however, Respondent believed other employees were allowed to violate rules, and that she was being unfairly disciplined because she was female and not a member of the union. The evidence does not support a finding that other employees were allowed to violate rules, nor that Respondent was treated differently than other employees. The evidence does not reflect that Respondent was subjected to disciplinary actions because of her gender or her failure to join a union. During her employment at the Sand Key Tollbooth, Respondent received more complaints from customers and other employees than any other tollbooth attendant. Because Respondent had received two consecutive three-month reevaluations with an unsatisfactory rating, she was subject to termination under the City's policy. In addition, because Respondent had accumulated excessive disciplinary points she was subject to termination under the City's Guidelines for Disciplinary Action. The performance evaluations and the disciplinary actions taken with regard to Respondent were appropriate and consistent with those given other employees. Following her five-day suspension, Respondent filed a report alleging various rule violations of other employees. The City investigated Respondent's allegations and required three employees to attend counseling with regard to cash drawer procedures. The evidence does not support a finding that the City singled out Respondent for disciplinary actions. The City allowed Respondent to serve her five-day suspension over two pay periods to lessen the financial impact of her suspension. The City Harbormaster has employed other females within the department without incident. As of October 1995, the City has eliminated the position of tollbooth attendant because of the construction of a new Sand Key bridge which will, upon completion, be toll free. The City has assisted former tollbooth attendants in attempting to secure other positions of employment with the City. Subsequent to her termination, Respondent applied for a meter reading position with the City, but was not hired.
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 dismissing Respondent from her position of employment with the City of Clearwater. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON 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 November, 1995. APPENDIX As to Petitioner's Proposed Findings: 1 - 12. Accepted and Incorporated. As to Respondent's Proposed Statement of Facts: Accepted, except that unauthorized entry into another employee's cash drawer violated City rules and regulations. Rejected as irrelevant. Rejected as not supported by the evidence. COPIES FURNISHED: Leslie K. Dougall-Sides, Esquire Paul Richard Hull, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Diane C. Hashil 1527 South Prospect Avenue Clearwater, Florida 34616 Ms. Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748
The Issue Whether Respondent Wilton Hill committed the violations alleged in the Decision-Making Leave and Mandated EAP Referral 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 September 8, 2015, Petitioner hired Respondent to work as a senior systems programmer, which is categorized by the City as a “Classified” service position. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the CSR provides the framework for suspending, demoting, and dismissing City employees. By correspondence dated February 22, 2021, Petitioner provided Respondent with what is commonly referred to as a “predetermination notice” and advised Respondent therein that it was believed that he “committed an offense warranting formal discipline.” The predetermination notice states, in material part, that Respondent violated “Integrity Standards, listed on page iv of the official PBMP manual, adopted by the City of Clearwater on February 15, 1998 and revised on July 1, 2014, to wit: [1] Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations[;] [and] [2] [d]ishonesty or untruthfulness or willful refusal to provide information or otherwise cooperate during an internal investigation or when directed to do so by competent authority.” The notice also specifically alleges that Respondent violated chapter 13, section 3(b), (f), and (l) of the CSR. The City seeks to discipline Respondent based on events that occurred on or about February 1, 2, 3, and 10, 2021, respectively. On February 24, 2021, Respondent met with the director of his department and presented his version of the events in question. Following the meeting, the City, by correspondence dated March 5, 2021, notified Respondent that he would be placed on “a two-day Decision-Making Leave and mandated EAP for ... violating the Clearwater PBMP Citywide Personal Responsibility, Integrity, and Excellence standards.” Performance and Behavior Management Program (PBMP) The City developed the 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: (1) Personal Responsibility; (2) Integrity; and (3) 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, the City contends that Respondent violated several of the PBMP Integrity Standards and should therefore be subjected to formal discipline. Background – Family Medical Leave Act (FMLA) Respondent suffers from a serious medical condition that occasionally impacts his ability to perform his job. Under the City’s policy related to FMLA, an employee may intermittently take leave under FMLA “whenever medically necessary … because the employee is seriously ill and unable to work.” The policy also instructs that “[e]mployees should make a reasonable effort to schedule intermittent leave as to not unduly disrupt office operations.” Because of Respondent’s underlying medical condition, Petitioner, since at least November 2020, has allowed Respondent “4 [to] 5 episodes per month” during which Respondent can take FMLA leave without having to submit documentation related to the same. As a practical matter, this means that when Respondent experiences a medical episode that impairs his ability to work, he is to contact his supervisor, if possible, and let the supervisor know that he is utilizing FMLA leave for his anticipated absence from work. Herein lies “the rub” in the instant dispute. Respondent’s Understanding of Leave Protocol According to the City’s governing manual for supervisory, administrative, managerial, and professional employees (SAMP), “Classified employees who have successfully completed an initial probationary period become certified to regular employment status and have certain rights of appeal through the Civil Service grievance process.” The SAMP manual also provides that “Classified SAMP employees will not be disciplined except for just cause.” Section 2 of the SAMP manual provides that “Classified SAMP employees must obtain approval from a person of competent authority prior to working any hours outside of their established work schedule, either before their designated starting time or after their designated quitting time or during an unpaid meal period. Chapter 22, section 1, of the CSR provides as follows: Normal Work Hours -- The number of hours constituting a regular schedule work week for City Employees is specified by the City and excludes meal periods. In positions requiring shift work, the City reserves the right to include meal periods as actual time worked. Regularly scheduled work hours may be adjusted or “flexed” within a specific work week with proper notification and at the mutual convenience of the employee and the respective department. Such adjustments or flexing of work hours must be approved in advance by the respective department…. Chapter 4 of the CSR defines “flex time” as “the process whereby an employee’s regularly scheduled hours of work within a specific workweek are adjusted with proper notification and at the mutual convenience of the employee and the respective department. Such flexing of work hours must be approved in advance by the respective department….” Respondent, at all times material hereto, understood that he was to first contact his supervisor before taking time off related to a medical episode. Evidence of Respondent’s understanding is illustrated in emails that he sent to his supervisor on December 2 and 31, 2020. February 1 and 2, 2021 Sometime around January 2021, the City implemented a number of workplace measures designed to mitigate the risk of contracting and spreading the COVID-19 virus. One such mitigation effort allowed employees “to work from home on their assigned remote day.” During February 2021, Tuesdays were Respondent’s assigned days to telecommute. On Monday, February 1, 2021, the following emails were exchanged between Respondent and his supervisor: From: Williams, Jeremy Sent: Monday, February 1, 2021 (2:12 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Where are you? Thanks, Jeremy From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:15 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 At lunch From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:21 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Precisely; (Respondent provided the email address for the auto/electronics store where he was located) From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:00 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Can you confirm what time you arrived today? From: Hill, Lloyd Sent: Monday, February 1, 2021 (4:04 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Is anyone else required to confirm their time today? From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:08 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 I put the timesheets on your desk for time entry this AM and noticed that your laptop was not here and your desk looked to be unoccupied, at 2:30 your desk looked the same. We need to make sure to charge your time correctly, so if you had an appointment not reflected on my calendar I need to update it. Please confirm your arrival time, and how long of a lunch you took for my records please. Thank you, Jeremy On Tuesday, February 2, 2021, Respondent and his supervisor exchanged additional emails regarding Respondent’s absence from work: From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (10:21 a.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Can you confirm your times for yesterday as I requested please? Thank you, Jeremy Soon after sending the email to Respondent at 10:21 a.m., on February 2, 2021, Mr. Williams met with Respondent via videoconference. During the videoconference, Mr. Williams again asked Respondent about his whereabouts and arrival time to the office on February 1, 2021. Mr. Williams credibly testified that Respondent, in response to his inquiry, became argumentative by wanting to know if other employees where being questioned about their whereabouts and arrival time to work. Respondent never answered the questions posed to him by Mr. Williams, but instead, advised Mr. Williams that his time away from the office on February 1, 2021, should be charged as one of his monthly FMLA episodes. Mr. Williams was confused by Respondent’s request, in part, because Respondent was requesting FMLA leave that covered time when Respondent actually performed certain work-related tasks, albeit via unauthorized telecommuting. Shortly after the videoconference ended, Respondent and Mr. Williams had additional discussions regarding the matter as reflected in the following emails: From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:12 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I am using this as one episode of FMLA. My [redacted] was too high to drive. I am notifying you after the incapacity has passed as allowed by law. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:32 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, We will need to refer to HR as to what is allowed. I will update this outage once we hear back from them. Thank you, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:35 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs To be clear, I have notified you that I was incapacitated due to an underlying condition covered by my FMLA on the morning of February 1st. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:37 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, I only have record of your FMLA request for the AM of 2/1/2021 on a video call that occurred on 2/2/2021. Can you send me the notification that you sent me on the 1st indicating this? It[’s] possible that I missed it. Thanks, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (12:14 p.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I think you missed it. I don’t have a copy. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (12:46 p.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, This doesn’t make any sense. Either you requested the time or you didn’t. If you don’t have a record, you didn’t request it. I certainly did not receive anything. I have re-reviewed my emails, teams and sms and see nothing from you indicating that you would be out of the office on Monday (2/1/21) morning and early afternoon. We will confer with HR as to what we can use to charge your time. Thank you, Jeremy As previously mentioned, the City, on or about February 22, 2021, informed Respondent that it intended to suspend him for two days. In response to the City’s notice of disciplinary suspension, Respondent stated the following with respect to matters that transpired on February 2 and 3, 2021: On February 1, 2021, I began working from home at about 7 AM. I typically log on the server in the morning before leaving for work to check on emails and overall functioning of all systems, as well as respond to the system users. Due to severe anxiety arising out of my continuing concern over the risk to my health posed by the pandemic as well [as] the ongoing dispute with the City over my ADA reasonable accommodation request to telecommute, I experienced [redacted] symptoms. My first … reading taken was [redacted] putting me in the range of an ... emergency. As such, I decided to remain at home and continue to work. I did not feel safe to drive to the office and kept monitoring my [redacted] to determine whether I needed to go to the emergency room. When my readings returned to a safe level, I arrived at the office later that day around 3 PM. My manager acknowledged my presence because I walked past his office several times. I am more than willing to provide documentation of the ... readings I took that day. On February 2, 2021, I had a video meeting with my manager and explained to him the stress that I was experiencing. At that time, I requested 5 hours of leave (against my available intermittent FMLA leave) because he would not consider time I spent at home earlier that day as hours worked, despite the fact that I performed my job duties during that period. Respondent’s suggestion of incapacity is not supported by the evidence. By his own admission, Respondent, on the morning of Monday, February 1, 2021, was able to log onto the City’s server which allowed him to “check on emails and overall functioning of all systems, as well as respond to the system users.” Respondent also admits that after his first elevated reading he decided to “remain at home and continue to work” because he did not “feel safe to drive.” The issue is not whether Respondent felt well enough to drive, but whether he felt well enough to send an email. If Respondent felt well enough to “respond to the system users, and continue to work,” then he was certainly capable of sending an email to his supervisor. There is no credible evidence that Respondent suffered from any form or type of medical condition on the morning of February 1, 2021, which prevented him from notifying his employer that he was taking an “episode” of FMLA leave for the workhours in question. It is undisputed that Monday, February 1, 2021, was not Respondent’s designated day to telecommute. Chapter 12, section 1, of the CSR clearly provides that the City determines normal work hours for its employees, and that employee-initiated changes to the normal work hours “must be approved in advance.” The uncontroverted evidence establishes that Respondent was not authorized to telecommute on Monday, February 1, 2021, and that he did so in violation of the CSR and SAMP manual. Respondent’s assertion that he did not violate City rules and regulations “because he performed [his] job duties” while at home on February 1, 2021, is irrelevant because, as noted above, he lacked authority to telecommute on the day in question. February 3, 2021 Respondent reported to work on February 3, 2021, and worked until leaving the building at 1:30 p.m. Respondent did not return to work on this date and several hours later initiated the following email chain with his supervisor: From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (4:27 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow [There was nothing written below the subject line]. From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:13 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow I have you down for Tomorrow in the AM, you’ll confirm with me the specific amount of time when you get in. See you tomorrow, Jeremy From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:21 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow Hi Lloyd, Did you mean to say that you took off work at 4:30 p.m. today (using FMLA)? I stopped by your desk to clarify what you meant by this email, you weren’t there (5:20 p.m.). Office 365 saw you last at 4:48 p.m. I’m pretty confused if you can clarify, I’d appreciate it. Thank you, Jeremy From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (5:47 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow Correct Before Respondent prematurely ended his workday on February 3, 2021, he had been assigned that morning to provide IT support services for the City’s recreation centers. Mr. Milou Louis, who worked as senior systems programmer at the City’s recreation centers, was retiring from employment with the City, and Respondent, because of his availability and skill set, was tasked with replacing Mr. Louis. In explaining his actions related to his early departure from work on February 3, 2021, Respondent stated the following: On February 3, 2021, I was informed that I was required to be on-site at the City’s Parks & Rec centers where COVID-19 infection rates were among some of the highest for City employees. Notably, this documented infection rate does not consider infected members of the public who may use the centers. I immediately informed my manager, who rendered his lay opinion that I was at no higher risk than anyone else. Notably, I had not previously been assigned to be on-site, let alone during a pandemic. Thereafter, I suffered a sever anxiety attack because I legitimately feared for my health. At that point I left the building. Management told me I left at 1:30 PM. I contacted my supervisor at around 4 PM informing him I would take available FMLA leave for the rest of the day. As an initial matter, there is no credible evidence of record that Respondent’s particular work environment at the recreation centers would have been any more at risk for COVID-19 exposure than his regular work environment, or say, the electronics store where Respondent stopped during his lunch break on February 1, 2021. During Respondent’s email exchange with his supervisor on February 3, 2021, Mr. Williams clearly communicated to Respondent that he was confused about Respondent’s FMLA leave request. Respondent, despite having the opportunity to do so, never sought to clarify his leave request, and, for whatever reason, chose not to correct Mr. Williams’ erroneous belief that Respondent left work at 4:30 p.m., when all the while Respondent knew that he actually left work several hours earlier at 1:30 p.m. With respect to the events of February 3, 2021, the evidence establishes that Respondent violated City rules and regulations by failing to inform his supervisor of his early departure from work under circumstances where he clearly had the opportunity to do so. Also, as noted above, the email that Respondent sent at 4:30 p.m., on February 3, 2021, advised that Respondent was taking “One FMLA Episode From Now Till Tomorrow.” Because Respondent’s email was misleading as to when he actually left work, Respondent actually had a three-hour unauthorized absence from work (i.e., from 1:30 p.m. to 4:40 p.m.) and misled his supervisor as to the amount of FMLA leave that was being requested. February 10, 2021 On February 10, 2021, Respondent reported to work at his scheduled time and then left the office from 2:00 p.m. to 4:40 p.m. When asked by his department supervisor to account for the missing time, Respondent could not do so and instead elected to quibble with his supervisor about whether his authorized lunch break was 30 minutes or one hour in duration. Respondent’s unauthorized leave was charged against his accrued vacation hours.
Conclusions For Petitioner: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 For Respondent: Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Civil Service Board of the City of Clearwater enter a final determination suspending without pay Respondent’s employment for a period of two days. DONE AND ENTERED this 31st day of August, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2021. COPIES FURNISHED: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748 Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
The Issue The amount of reasonable attorney’s fees and costs to be awarded to Petitioner, Palafox, LLC (“Petitioner” or “Palafox”), and against Respondent, Carmen Diaz (“Respondent”), in the underlying administrative matter as a sanction pursuant to section 120.595, Florida Statutes.
Findings Of Fact Petitioner is a Florida limited liability company and was the applicant for the Permit challenged in Case No. 19-5831. Respondent is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision, and was the Petitioner in Case No. 19-5831. Petitioner was represented by the firm of Carlton Fields, P.A. (“the Firm”), in Case Nos. 19-5831 and 20-3014F. Petitioner’s counsel and paralegal with the Firm spent 392.4 hours litigating both the underlying substantive case and entitlement to attorney’s fees, for a total of $123,763.50 in fees, broken down as follows: Name Hours Rate Subtotal W. Douglas Hall 171.8 $382.50 $65,713.50 James E. Parker-Flynn 197.4 $270.00 $53,298.00 Christine Graves .3 $382.50 $ 114.75 Kimberly Pullen 22.9 $202.50 $ 4,637.25 The hourly rates shown above were discounted by approximately 10 percent of the standard rates charged by the Firm at the time this matter originated. Furthermore, over the course of representing Palafox in this matter, the Firm discounted a number of its bills as a courtesy because of the amount of time required to litigate the matter and to adjust for potential overlap among attorneys working on the case. Those courtesy adjustments totaled $7,437.45. Applying that discount to the total fees shown above, the total amount of attorney’s fees incurred by Palafox in litigating this matter is as follows: Total Unadjusted Attorney’s Fees $123,763.50 Less Courtesy Adjustments $ 7,437.45 Total Adjusted Attorney’s Fees $116,326.05 In addition to attorney’s fees, Palafox incurred the following taxable costs and expenses: Court Reporter - Diaz Depo. $ 564.28 JSB-Advantage Court Reporters - Carswell Depo. $ 1,032.48 Phipps Reporting - DOAH Transcript -Day 1 $ 1,605.67 Phipps Reporting - DOAH Transcript -Day 2 $ 542.52 WSource Group, LLC (1/8/20-1/27/20) $ 3,987.50 WSource Group, LLC (2/6/20-2/20/20) $ 9,652.50 Total Taxable Costs $ 17,384.95 Additionally, Palafox is seeking the costs incurred by its expert, Mr. Varn, up through and including the final hearing. Mr. Varn’s hourly rate for his work on this case was $250, and, including the final hearing, he spent 9.8 hours on the case. The total cost for his services was $2,450.00. Palafox is seeking a total of $136,161.00 in fees and costs. Mr. Varn testified that both the rates charged by Palafox, and the hours Palafox’s counsel spent on the matter, were reasonable and consistent with the rates charged and time spent for similar work by other attorneys in the area. His opinion was supported by detailed time records kept by Palafox’s counsel, who confirmed that the fee statements were reviewed and periodically adjusted as necessary to account for potential overlap and duplication of effort among the attorneys working on the case, or if it appeared the bill simply needed to be reduced. Respondent stipulated that Mr. Varn is an attorney with sufficient qualifications to render an opinion regarding the amount of reasonable attorney’s fees to be awarded to Palafox in this proceeding. Respondent did not object to the rates charged by the Firm, and did not challenge any of the Firm’s time entries, fees, or costs. The number of hours set forth above by the attorneys and the paralegal working on this case were reasonable, the rates charged were reasonable, and the costs expended by Palafox were reasonable.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Carmen Diaz, pay to Palafox its reasonable attorney’s fees and taxable costs in the amount of $136,161.00. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Nicholas D. Fugate, Esquire Nicholas D. Fugate, P.A. Post Office Box 7548 Tallahassee, Florida 32314 James E. Parker-Flynn, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Brett J. Cyphers, Executive Director Northwest Florida Water Management District 81 Water Management Drive Havana, Florida 32333-4712 W. Douglas Hall, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32301 Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
Findings Of Fact Respondent GL Homes filed a permit application with Respondent District for Conceptual Approval of a surface water management system. On August 28, 1996, Respondent District mailed a copy of its staff report and notice of rights to Respondent GL Homes. The staff report was the staff's summary and recommendation and Respondent District's notice of proposed agency action. The staff report indicated, among other things, that it was a "draft" and that the last date for action by the Governing Board of Respondent District was September 12, 1996. On or about August 29, 1996, Respondent District mailed a copy of the same staff report and notice of rights to interested third parties, including Petitioners. The notice of rights provided, among other things: PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS Any person whose substantial interests are or may be affected by the action which is proposed in the enclosed Notice of Proposed Agency Action/Staff Review Summary, may petition for an administrative hearing ... Petitions for administrative hearing on the above application must be filed within four- teen (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative determination (hearing) under section 120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. There is no dispute that this provision is clear and unambiguous. Petitioners did not receive the mailed staff report and notice of rights. Before the filing of Respondent GL Homes' permit application, Petitioners had been involved with other permit applications which had come before Respondent District and had filed petitions for administrative hearings on other applications. Petitioners were well familiar with Respondent District's process, involving permit applications, its staff reports and the notice of rights. Sometime during the first week of September 1996, while at the Respondent District's office, Petitioner Durando obtained a copy of the staff report and notice of rights. Petitioner Durando appeared at the September 12, 1966, Governing Board meeting even though the permit application had not appeared on any agenda for the Governing Board that she had received. The permit application was to be heard as part of a list of "Add On Items", which did not provide prior notice of these items to the public. At the meeting of September 12, 1996, Petitioner Durando obtained again a copy of the staff report. However, the staff report contained a cover memo, dated September 9, 1996, to the Governing Board from the Director of Respondent District's Regulation Department, with four maps included. The cover memo was written in layman's terms and was a summary of the staff report. The cover memo contained no modification of the staff report. Moreover, the staff report attached to the cover memo contained no modifications. Cover memoranda are routinely prepared for the members of the Governing Board for items on which public comment is expected. Public comment was expected on Respondent GL Homes' permit application. A problem with notice to the public, regarding the Governing Board considering Respondent GL Homes' permit application at the September 12, 1996, was brought to the attention of the Governing Board. On the recommendation of Respondent District's staff, the Governing Board decided not to address the permit application at that meeting but to re-notice the public hearing on the permit application for October 10, 1996. Petitioner Durando was concerned as to whether Respondent District had to re-publish the staff report and notice of rights. She made an inquiry to a member of Respondent District's staff regarding this issue, who was unsure if a re-publication had to occur and informed Petitioner Durando of his uncertainty. Later in the evening of the same day of Petitioner Durando's inquiry, that same member of Respondent District's staff left a message on Petitioner Durando's answering machine that no re-publication of the staff report and notice of rights was required since there was no modification or change of the staff report. Also, prior to departing the September 12, 1996, Governing Board meeting, Petitioner Durando inquired of Respondent District's counsel as to when was the due date for filing a petition for an administrative hearing on Respondent GL Homes' permit application. Respondent District's counsel informed her that she must file her petition within 14 days of receiving a copy of the staff report and notice of rights. Petitioner Durando had attended other Governing Board meetings in the past which contained permit applications as agendaed items and as add on items. No evidence was presented to show that the prior permit applications considered by the Governing Board at its meetings did not contain a cover memo from Respondent District's staff, which summarized in layman's terms the staff report. Petitioner Durando believed that she had 14 days from September 12, 1996, in which to file a petition with Respondent District for an administrative hearing on Respondent GL Homes' permit application. She filed a petition on behalf of the Petitioners on September 26, 1996. Neither prior to nor subsequent to the September 12, 1996, Governing Board meeting was a modification made to the staff report or a second staff report prepared. Petitioners' actual receipt of the proposed agency action was sometime during the first week of September 1996. If Petitioners' actual receipt was on September 2, 1996, their petition for an administrative hearing must have been filed on or before September 16, 1996. If Petitioners' actual receipt was on September 6, 1996, their petition must have been filed on or before September 20, 1996. At all times material hereto, Petitioner Durando was not an attorney. Subsequent to filing the petition for an administrative hearing, Petitioners obtained the services of an attorney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the petition for an administrative hearing as untimely. DONE AND ENTERED in this 13th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1996.
Findings Of Fact The Respondent, Russell W. Doran, was certified as a law enforcement officer by the Petitioner, the Criminal Justice Standards and Training Commission, on November 19, 1982. He holds Certificate Number 02-32144. He was employed as a police officer by the City of Clearwater Police Department from July 12, 1982, through December 6, 1990. On the evening of November 10, 1990, at approximately 8:06 p.m., while on duty patrolling by himself in a squad car in the Clearwater Beach area, the Respondent radioed the police dispatcher to advise that he was at 1198 Mandalay Point, which is in an exclusive residential area at the north end of the beach called Carlouel, and that he had seen a black male slipping from the the front of the house there towards the side and back of the house. The Respondent advised that he was going after the suspect and asked the dispatcher to call for backup. After his initial transmission, the Respondent did not call back, and the radio dispatcher was unable to raise the Respondent on the police radio. Several officers in the area who overheard the dispatcher's transmissions, in addition to those specifically asked to respond, headed for the Respondent's location. The first officers to arrive saw the Respondent's empty squad car parked in front of the driveway to 1198 Mandalay and began looking for the Respondent. While they were looking, they heard an emergency radio transmission coming from the Respondent's squad car. When they got back to the squad car, they saw the Respondent lying on the front seat of the car with his head towards the steering wheel and his legs out the passenger-side door. He was apparently unconscious. Apparently, he had returned to the car, opened the passenger side of the car, leaned into the car, put the keys in the ignition and pushed the emergency radio signal. The first officers at the scene pulled the Respondent out of the car and laid him on his back in the street. His shirt was soaked with a liquid that smelled like, and was, gasoline. He had a small cut and a small amount of blood on the back of his head. The officers called the dispatcher to report what had happened and to ask for emergency medical technicians and for more help to the seal off the area and search for the apparent assailant while the Respondent was being attended. Immediately, a Morton Plant Hospital ambulance was dispatched to the scene, and as many units from the west side of Clearwater as possible were sent at high speed to the Carlouel area. When they arrived, they sealed off the area from the south, where a wall separated Carlouel from the rest of Clearwater Beach. The only other ways to escape from the scene would have been by boat-- either to the west to the Gulf of Mexico, to the east to the Intracoastal Waterway, or to the north towards Caladesi Island--or by walking or swimming across the shallow water to Caladesi Island, from which one would have to leave by boat or swim approximately a half mile across the Intracoastal Waterway to Dunedin. To apprehend the apparent suspect, the Clearwater Police sent two K-9 units to the scene to trail the freshest scents. The also had them search the house at 1198 Mandalay and all the nearby houses in Carlouel. Other officers scoured the area. They searched the immediate area and searched the beaches to the north and west of 1198 Mandalay, both by foot and by all-terrain vehicle. They went door to door throughout Carlouel to ask residents for information. They searched every dock and every boat in Carlouel. In addition, the police helicopter was dispatched to the scene and participated in the search. Meanwhile, a road block was set up at the entrance to Carlouel and all vehicles going north or south were stopped, checked and questioned. Clearwater Police also enlisted the help of the United States Coast Guard to stop and search boats in the Intracoastal Waterway, and the rangers on Caladesi Island were alerted. Crime scene investigators also were dispatched to the scene. As the searches were put in motion, the Respondent opened his eyes and looked at the officer helping him. Although he had worked with all of the officers at the scene and knew them well, he acted as if he did not know any of them, acted scared of them, and tried to get away from them. The officers were required to physically restrain them. The Respondent acted incoherent and confused. He did not communicate with any of the officers and continued to act as if he did not know who any of them were. The officers assumed that he had incurred a concussion and had amnesia. Out of concern for the Respondent's apparent medical condition, the officers were insisting that the Bayflight emergency medical helicopter also be dispatched to the scene to transport the Respondent to Bayfront Hospital to be seen as soon as possible at its neurological unit for head trauma. The emergency medical technicians vetoed this request. They saw no medical reason to helicopter the Respondent to Bayfront. There was little of the bleeding and swelling that would be consistent with a concussion or any blow to the head hard enough to cause a concussion or amnesia. They also observed that the Respondent's combativeness and other behaviors were not consistent with "retrograde amnesia," which frequently is seen with head trauma patients. With "retrograde amnesia," the patient is more likely to simply repeat questions over and over. The ambulance transported the Respondent to the Morton Plant emergency room, where he was admitted to the hospital. Meanwhile, the search for the Respondent's supposed assailant continued until approximately 11:30 p.m., but no one was apprehended, and there were no suspects. There were no footprints leading away from 1198 Mandalay. The dogs picked up no trails other than the Respondent and the first officer to arrive at the scene. There were no witnesses to anything suspicious. At the crime scene, some bushes had been trampled in the front of the house where the dogs indicated the Respondent had been. There also was a broken beverage bottle on the side of the house, where some cloth soaked with gasoline also was found, and where there was a strong odor of gasoline. The bottom and neck of the bottle were intact; the middle of the bottle had been shattered. The officers also found two beverage bottles under a palm tree on the front law of the house at 1198 Mandalay. The beverage contents had been decanted, and the bottles were filled with gasoline and wrapped together in a black T-shirt. While the investigation continued, the Respondent remained in the hospital. At first, he seemed to have total amnesia and not recognize anyone. But while he still acted as if he did not know some people, and acted towards them as if he did not even know who he was, he acted towards a select two as if he knew exactly who they were and who he was. Specifically, while still acting towards others as if he had amnesia, the Respondent had normal conversation with Christine Collin, a fellow police officer who was his former girlfriend, and with Alan Whitacre, another fellow police officer who was Collin's current boyfriend. The Respondent had known Collin for approximately three years. She was a police aide when he first met her. Later, she got her certificate and was sworn as an officer in the Clearwater Police Department. They became friends, and the relationship became romantic and intimate. The two discussed at length the problems in the Respondent's marriage and the Respondent's ambivalence about staying married. The Respondent indicated to Collin that he was still married only for the sake of his young son. In September, 1990, Collin decided to end the affair with the Respondent and to begin dating others. In approximately October, 1990, she made it known to the Respondent that she was seeing Whitacre. The Respondent acted as if he understood Collin's decision, in view of his marriage, and as if he was supportive of Collin. But on November 10, 1990, the Respondent called Collin and asked her to lunch. He said that his wife had gone to a wedding even though he had not been invited and it was his birthday. He indicated that this upset him and, to him, underscored the weakness of his marriage. He then told Collin that he was in love with her. He still was ambivalent about his marriage but professed that he was ready to end it. Collin was surprised and did not react as the Respondent had hoped. Eventually, she told the Respondent that she did not want him to be in love with her and that she did not want to resume their affair. When he heard Collin's response, the Respondent became even more depressed about the entire situation in which he found himself. The Respondent felt trapped in his marriage. His wife's father is a former major in the Clearwater Police Department. During the course of the rest of the day, in bits and pieces, the Respondent hatched an ill-conceived scheme to extricate himself from the situation. He decided to fake an arson attempt and fake being assaulted and hit over the head, hard enough to be knocked out or injured, with a bottle containing gasoline supposedly being used by the arsonist. He hoped that this would be enough to get himself out of the situation at least for a few weeks. It is possible that he also planned to fake amnesia, thinking that somehow this would enable him to get out of his marriage and pursue his love interest with Collin. After dinner, between approximately 7:30 and 8:00 p.m., the officer who was riding with the Respondent that day returned to the local police substation. The Respondent used this opportunity to stop and get three empty beverage bottles out of a trash dumpster. He then went to a service station and filled the bottles with gasoline. He stopped at a store and bought a T-shirt. He used the T-shirt to wrap together two of the bottles of gasoline so that he could carry them in one hand. He then drove north to a secluded area of the beach and 1198 Mandalay, a house the Respondent knew from previous patrols probably was vacant. The Respondent parked his squad car and got the bottles and T-shirt out of the trunk. He placed the two bottles he had wrapped together at the base of a palm tree on the front lawn. He then went up to the side of the house, which appeared to be unoccupied. At this point, he began to have second thoughts about what he was about to do, thinking that it was "ridiculous." He gave some thought to just "eating a bullet" instead. But, following his plan, he telephoned the dispatcher and falsely reported sighting a black male in front of the house. See Finding 2. He then attempted to crack himself in the head. To the Respondent's great dismay, after calling the dispatcher, he found that it was not as easy as he had hoped to knock himself out or injure himself. It also hurt more than he planned. Instead, he decided to hold the bottle over his head in one hand and break it with his police flashlight with the other hand. The glass shattered, spilling gasoline over the Respondent's neck and upper back. The Respondent took a shard of glass and cut himself in the back of the head to make it look like the bottle shattered when it struck him in the head. He then walked back to his squad car. Back at his squad car, the Respondent saw that another police vehicle already had arrived at the scene. He decided to push the emergency call button in the car and fake unconsciousness. If he had not already decided to do so, he also decided to fake amnesia. Once he initiated his scheme, the Respondent found that, rather than getting himself out of a stressful dilemma, he had gotten himself into another one that was just as difficult to get out of. Between November 10 and December 5, 1990, the Respondent made various false statements to various people, including investigating law enforcement officers. At times during this time period, especially at first, the Respondent professed that he had total amnesia. Later, he said he had partial memory. Some of the false statements he made to law enforcement officers investigating the matter were under oath; some were not. Some of the statements he made were inconsistent, as his story changed to meet contradictory evidence that had been obtained and to explain prior inconsistent statements with which he was confronted. Eventually, on December 6, 1990, as part of an agreement under which the Clearwater Police Department would allow the Respondent to resign and not have him prosecuted, the Respondent made a tape-recorded and written statement, under oath, in which he essentially admitted to what he had done. In this case, the Respondent is taking the position essentially that neither his admissions to nor his denials of false statements to law enforcement authorities were true. He claims that, in truth, he never has had, and still does not have, any actual present memory of what happened on or about November 10, 1990. He claims that, initially, he had temporary total amnesia. He claims that the false statements he initially made about what happened on that day were the product of his efforts to piece together, and make sense of, bits and pieces of information that were "leaked" to him. Essentially, he states that he now believes he "created" a memory for the police to help them solve the crime, and to help him make sense out of what everyone was telling him. Essentially, he says the same process was at work when he later admitted to his false statements. He claims that, when investigators disclosed to him their difficulties with the inconsistencies and illogic of some of the Respondent's statements, they essentially convinced him that his earlier statements must have been wrong and that the Respondent "must have done it." The Respondent claims that, in actuality, he has no present recollection of what happened on November 10, 1990. As reflected in these Findings of Fact, the Respondent's assertions are rejected as being the next in a series of fabrications and falsehoods invented by the Respondent in an attempt to extricate himself from the circumstances he created for himself. The Respondent attempted to base his latest fabrication on the expert testimony of a psychiatrist. But, at bottom, the psychiatrist's opinion is based on the assumption that the Respondent's selective amnesia results from an actual traumatic incident on the evening of November 10, 1990, in which the Respondent actually was assaulted by an arsonist whom the Respondent caught in the act. It has been found that no such assault ever occurred. If the Respondent was under stress from trauma resulting from the events of November 10, 1990, it was from the stress of recognizing the foolishness of what he had done, and from the personal and career repercussions that would result if was caught in his lie. The Respondent offered in evidence the videotape of an interview given by the Respondent to his expert witness while the Respondent was under the influence of Brevitol, a drug which is known to some as "truth serum." It is found that the Respondent's evidence did not establish that the results of Brevitol interviews are the kind of evidence commonly relied upon by reasonably prudent persons in the conduct of their affairs. At best, the expert established that Brevitol and similar drug-assisted interviews are useful in obtaining certain information from persons who actually have some kind of trauma-induced amnesia. For example, it is used with some success by health care professionals trying to diagnose and treat patients who present with amnesia and are unable to give their identity or the identity of their next of kin, friends or neighbors, or any other necessary personal information. The evidence did not establish that these interviews are commonly used to ascertain whether someone claiming amnesia is telling the truth. Nor was it established to the satisfaction of this Hearing Officer that these kinds of interviews separate fact from fantasy. (It also is possible that, if not conducted properly, the interview can result in suspect, sleepy affirmations to leading questions, but this defect probably could be detected from a review of the interview itself.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the certification of the Respondent, Russell W. Doran. RECOMMENDED this 27th day of April, 1993, 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 27th day of April, 1993. COPIES FURNISHED: D. David Sessions, Esquire Assistant General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Bruce G. Howie, Esquire Battaglia, Ross, Hastings & Dicus 980 Tyrone Boulevard Post Office Box 41100 St. Petersburg, Florida 33743 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Petitioner should terminate Respondent from his employment as a deputy sheriff for allegedly engaging in prohibited conduct pursuant to Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Section 6, Subsection 4, Laws of Florida (the Civil Service Act), and Petitioner's General Order Section 3-1.1, Rule and Regulation 5.2--relating to loyalty, Rule and Regulation 5.4--relating to duties and responsibilities, and Rule and Regulation 5.6-- relating to truthfulness; General Order Section 3-1.3, Rule and Regulation 3.20--relating to reporting procedures for the use of force; and General Order 3-2--relating to ethical requirements.
Findings Of Fact Petitioner is the Sheriff of Pinellas County and a constitutional officer described in Article VIII, Section 1, Florida Constitution. From sometime in 1989 until the termination of Respondent’s employment on March 14, 2008, Petitioner employed Respondent as a deputy sheriff in the Pinellas County Sheriff’s Office (the PCSO). Respondent was last assigned to the courthouse security division of the PCSO. On Saturday, November 3, 2007, Respondent was off-duty and volunteering as one of a number of parents who were supervising several high school bands that were practicing at Clearwater High School (CHS). Three juvenile males on bicycles approached the band practice area. Respondent yelled at them to stop, but did not identify himself as a deputy sheriff. One juvenile stopped. The other two juveniles ignored the commands and proceeded toward the Tarpon Springs Band. One of the riders wore a back pack with a baseball bat attached to the pack. Respondent reasonably believed that the juveniles, who were approximately 16 and 17 years old,1 presented an imminent danger of running into and potentially injuring members of the nearby Tarpon Springs Band. Respondent ran after the juvenile with a bat attached to his pack, grabbed the bat, and separated the juvenile from the moving bicycle. The second juvenile stopped at the point of separation. The juvenile with the baseball bat struck Respondent with his fist, and Respondent delivered a knee-spike2 to the mid- section of the juvenile. The knee-spike disabled the juvenile. The second juvenile was preparing to strike Respondent, when another parent pulled that juvenile away. Petitioner notified Respondent of the charges against him in a memorandum dated March 14, 2008 (the charging document). In relevant part, the charging document alleges in a paragraph entitled “Synopsis” that, during the altercation, Respondent failed to act within the scope of his responsibilities as a deputy sheriff. If that allegation were properly construed to allege that Respondent used excessive force, the fact-finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of that charge of misconduct. Respondent acted reasonably during the altercation. Respondent used reasonable force to protect band members from harm, and Respondent used reasonable force to defend himself from a juvenile. The exigencies of the moment did not afford time for Respondent to disclose his employment with the PCSO before taking action he reasonably believed to be necessary to protect members of the Tarpon Springs Band. Respondent cooperated with the police investigation at CHS. CHS is located within the jurisdiction of both the PCSO and the Clearwater Police Department. The Clearwater Police Department responded to the scene and conducted an investigation. The investigation was documented in Clearwater Police Report No. CW07-33468 (the police report). Another allegation in the synopsis of the charging document is that Respondent was untruthful by deliberately or intentionally omitting or misrepresenting material facts outlining his involvement in the altercation, including a memorandum Petitioner authored on November 5, 2007. The fact- finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of this charge of misconduct. It is undisputed that Respondent telephoned Corporal Victor Griffin, Respondent’s immediate supervisor on the evening of November 3, 2007, and reported the altercation in detail, including the attack by the juvenile and Respondent’s use of a knee-spike. Corporal Griffin instructed Respondent to inform Sergeant Edward Marshall, the next in command. Respondent telephoned Sergeant Marshall that night and informed him of the use of force and the details of the incident. At the hearing, Sergeant Marshall had little or no recall of the details of the conversation with Respondent on November 3, 2007. The only credible and persuasive testimony concerning that conversation is the testimony of Respondent. On the evening of November 3, 2007, Sergeant Marshall instructed Respondent to write a memorandum describing the incident and Respondent’s use of force when Respondent returned to work on Monday, November 5, 2007. Sergeant Marshall instructed Respondent to either reference the police report in the memorandum or attach a copy of the police report to the memorandum. Respondent drafted a memorandum on November 5, 2007. The memorandum referred to the police report, and Respondent submitted the memorandum to his supervisor. The police report included a handwritten, detailed description by Respondent of the use of force in the altercation. Petitioner had reasonable access to the police report. The Clearwater Police Department and the PCSO, by agreement, utilize a computerized joint records management system identified in the record as ACISS. Another allegation in the synopsis of the charging document is that Respondent failed to document the use of force, as required by agency policy. The fact-finder finds that a preponderance of the evidence does not support a finding that Respondent is guilty of this charge of misconduct. A complete description of the altercation and use of force was attached to the police report. That information fully documented the use of force and was available to Petitioner through ACISS.3 Another allegation in the synopsis of the charging document is that Respondent compromised the criminal investigation of the altercation by “accessing unauthorized information” and by “interfering with an ongoing investigation.” This allegation is based in substantial part on two undisputed facts that occurred on or about November 5, 2007. First, Respondent obtained a copy of the police report and discovered that the police report listed Respondent as a “victim/suspect.” Suspects are not entitled to a copy of a police report, but law enforcement officers may access the report. Second, Respondent persuaded the property department to change the status of brass knuckles found in a back pack at the scene of the altercation from being held for destruction to being held as evidence, so that the brass knuckles would not be destroyed. The fact-finder finds that a preponderance of the evidence does not support a finding that the undisputed actions of Respondent compromised the criminal investigation by accessing unauthorized information and intervening into an investigation in which Respondent was listed in the police report as a suspect. The undisputed actions of Respondent were consistent with the actions of the Clearwater Police Department, and neither action by Respondent compromised the investigation. The investigating officer for the Clearwater Police Department was off-duty on Monday and Tuesday, and she did not return to work until Wednesday, November 7, 2007. When the investigating officer returned to work, her sergeant instructed her to change the police report to list Respondent as a law enforcement officer, to delete his address from the report, and to change the designation of Respondent from a “victim/suspect”4 to a “victim” before finalizing the report. The investigating officer made those changes to the police report by computer entries on November 7, 2007, and those changes were available to the PCSO through ACISS. The sergeant also instructed the investigating officer to change the status of the brass knuckles from being held for destruction to being held as evidence, so that they would not be destroyed. The investigating officer contacted the property department of the PCSO to change the status of the brass knuckles to that of evidence and discovered the property department had already made that change at Respondent’s request. Respondent was entitled to a copy of the report because he was a law enforcement officer and was incorrectly listed on the report as a suspect. The actions of Respondent in changing the status of the brass knuckles so that they were listed as evidence was consistent with the actions of the Clearwater Police Department. Respondent did nothing on November 5, 2007, that the Clearwater Police Department did not do on November 7, 2007. If the investigating officer were to have returned to work on Monday, November 5, 2007, it is reasonable to conclude that the Clearwater Police Department would have provided a copy of the police report to Respondent, because Respondent would not have been listed as a suspect, and the Department would have changed the status of the brass knuckles so that they were being held as evidence. The investigating officer and her sergeant concluded the altercation was a matter of mutual combat and did not refer the case for prosecution by the state attorney. The nascence of the charges against Respondent emerged from two events. First, the mother of the two juveniles filed a complaint of excessive force against the PCSO. Second, when the investigating officer discovered that Respondent had already persuaded the property department to change the status of the brass knuckles, so that they would not be destroyed, the Clearwater Police Department complained to the PCSO about a deputy sheriff allegedly interfering with evidence. As a result, Petitioner initiated an administrative investigation that led to this proceeding. The penultimate allegation in the synopsis of the charging document is that Respondent provided confidential information regarding an open criminal case to another suspect. It is undisputed that when Respondent discovered on November 5, 2007, that he was listed as a suspect in the police report, Respondent told the parent that had prevented the second juvenile from attacking Respondent that the parent was also listed in the report as a suspect. The disclosure by Respondent was immaterial and had no impact on a pending criminal investigation. The Clearwater Police Department classified the altercation as mutual combat and did not refer the case for prosecution. The final allegation in the synopsis of the charging document is that Respondent failed to advise his supervisors of material facts regarding his “involvement in the ongoing . . . criminal investigation” and “subsequent actions” that Respondent took. The distinction, if any, between “involvement in the ongoing investigation” and “subsequent actions” is unclear to the fact-finder because the charges deal with Respondent’s actions during a pending investigation. The charges of misconduct do not address Respondent’s “subsequent actions” after the investigation was completed and case was closed. The investigating officer did not inform Respondent when she responded to the scene on November 3, 2007, that she was listing Respondent as a suspect. She did not decide to list Respondent as a suspect until she prepared her report that evening, long after Respondent had completed his written report that was included with the police report and had left the scene. Respondent did not learn that he was a suspect until Respondent obtained a copy of the police report on November 5, 2007. After obtaining a copy of the police report, Respondent talked to Lieutenant Rachel Hughes of the Courthouse Security Division at the PCSO and another of Respondent’s supervisors. Significant variation exists in the separate accounts of the conversation between Respondent and Lieutenant Hughes. The testimony of Lieutenant Hughes is inconsistent, self- contradictory, and less than credible and persuasive. The only credible and persuasive testimony concerning the conversation is the testimony of Respondent. During the conversation between Respondent and Lieutenant Hughes, Respondent expressed his displeasure at being listed in the police report as a suspect, stated that he would like to complain to someone at the Clearwater Police Department, and asked if Lieutenant Hughes knew anyone there. Lieutenant Hughes suggested that Lieutenant James Steffens at the Clearwater Police Department is a “good guy.” Before contacting Lieutenant Steffens, Respondent called the property department and identified himself as “Milewsky from over at the courthouse.” Respondent did not disclose that he was a suspect in the case involving the brass knuckles. Respondent knew or should have known that the property department employee reasonably believed that the call and request was related to official business. Lieutenant Larry Smith was in charge of the property department at the time and testified at the hearing. The property department would not have enhanced the status of the brass knuckles at the request of someone who was listed as a suspect in the police report. The failure to disclose to the property department that Respondent was a suspect in the case is not alleged in the charging document, and the ALJ cannot find Respondent guilty of a charge not alleged in the charging document. The relevant language in the charging document is confined to an allegation that Respondent failed to advise his “supervisors” of his “involvement in the ongoing . . . investigation” and his “subsequent actions.” Those assigned to the property department are not “supervisors” of Respondent. Respondent next telephoned Lieutenant Steffens of the Clearwater Police Department to discuss the fact that Respondent was listed as a suspect in the police report. Respondent and Lieutenant Steffens disagree over material details of the conversation, including the issue of whether Respondent requested Lieutenant Steffens to change the police report to delete Respondent’s name as a suspect. The fact-finder resolves the disparity in testimony between Respondent and Lieutenant Steffens against Respondent. The testimony of Lieutenant Steffens is the only credible and persuasive testimony concerning the conversation between the two men. Respondent did not want to remain listed as a suspect, but denied that the purpose of his call to Lieutenant Steffens was to have the report changed to delete his status as a suspect. Respondent insisted that his telephone call to Lieutenant Steffens was “unrelated” to changing his designation as a suspect. The testimony of Lieutenant Steffens was plausible, credible, and persuasive. Lieutenant Steffens recalled that Respondent advised Lieutenant Steffens that a Clearwater Police Department investigation contained erroneous information, and Respondent sought to get the error corrected “as soon as possible.” After emphasizing Respondent’s seniority and the lack of experience of the investigating officer, who was a rookie, Respondent stated that he did not want to make a complaint against the investigating officer, but just wanted the report changed so that Respondent was listed solely as a victim in the report. Respondent asked Lieutenant Steffens if they could get that done as quickly as possible. Lieutenant Steffens sent a message by email in this regard to Sergeant Wilton Lee, the supervisor for the investigating officer, asking Sergeant Lee to telephone Respondent. Sergeant Lee did not return to work until Wednesday, November 7, 2007. Before Lieutenant Steffens heard from Sergeant Lee, Lieutenant Steffens received a voice mail from Respondent inquiring as to why nothing had been done yet on the case. Lieutenant Steffens also received a telephone call from another suspect. Lieutenant Steffens telephoned Sergeant Lee directly about the inquiries. When Sergeant Lee reported to work on November 7, 2007, the police report was waiting for his approval. Sergeant Lee telephoned Respondent, whom Sergeant Lee knew to be a deputy sheriff, and agreed that Respondent should not be listed in the police report as a suspect. Respondent failed to advise his supervisors of two forms of involvement in the investigation. First, Respondent failed to advise his supervisors of his involvement in the enhancement of the brass knuckles from that of waiting for destruction to that of evidence. Second, Respondent failed to advise his supervisors of his efforts to change the police report to delete his name as a suspect. A preponderance of the evidence supports a finding that the failures described in the preceding paragraph violate requirements for loyalty and truthfulness. Those requirements are described in General Order 3-1.1 and Rules and Regulations 5.2 and 5.6. The Progressive Discipline Worksheet assigns 75 Progressive Discipline Points for violations of all of the charges in the charging document. However, a preponderance of the evidence supports a finding that Respondent is guilty of violating only two of the six charges of misconduct described in the synopsis in the charging document. The Worksheet does not delineate the points assigned to each charge, and Petitioner has not promulgated intelligible standards that enable the fact- finder to determine the points that should be allocated to the two violations committed by Respondent. No aggravating factors are evidenced in this proceeding. Respondent has no prior discipline during his 19 years of experience with the PCSO. The culpable actions of Respondent did not result in physical or financial harm to a member of the public or members of either the PCSO or the Clearwater Police Department. The culpable actions of Respondent did not compromise an ongoing criminal investigation. A preponderance of the evidence does not show that termination of employment is a reasonable penalty. Untruthfulness and disloyalty are serious offenses but, absent any aggravating circumstances, a reasonable penalty is suspension without pay beginning on March 14, 2008, and reinstatement to the former position of employment immediately upon the entry of a final order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order adopting the findings of this Recommended Order; suspending Respondent’s employment without pay from March 14, 2008, to the date of the final order; and returning Respondent to his former position of employment as of the date of the final order. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 22nd day of December, 2008.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: An Overview of Petitioner's Employment with the District Petitioner was employed by the District from June of 1988, until his termination, which was effective January 14, 1992. Prior to his termination he had an unblemished disciplinary record. Petitioner was initially hired by the District as a Construction Representative. In January of 1989, he assumed the duties of a Regulatory Professional I. He was promoted in 1990 to a Regulatory Professional II, a position he held until he was terminated. At the time of his termination, Petitioner had attained regular employee status inasmuch as he had successfully completed his probationary period. As a Regulatory Professional II, Petitioner was responsible for monitoring the public's compliance with the District's regulatory programs, a task that involved the exercise of considerable discretion with minimal supervision as well as frequent and substantial contact with citizens in his assigned territory, which covered all of Okeechobee and St. Lucie Counties and parts of Glades and Highlands Counties. Petitioner also supervised one subordinate employee, Donald Hagan, a Regulatory Professional I, who assisted Petitioner in his monitoring activities. Petitioner was assigned a District vehicle for official use during the workday. After hours, the vehicle was secured in the parking lot outside the District field station in Okeechobee where Petitioner was headquartered. Petitioner worked an eight-hour day. His normal work hours were 7:30 a.m. to 4:00 p.m., however, he occasionally deviated from this schedule when necessary to accommodate his workload. In addition to a lunch break, Petitioner was allowed to take two 15 minute work breaks during his eight-hour workday, one in the morning and one in the afternoon. He was permitted to take these breaks whether he was in the field station or out in the field. In September and most of October of 1991, Petitioner's immediate supervisor was Edward Maciejko. Maciejko was headquartered in West Palm Beach, approximately 60 to 65 miles from the Okeechobee field station out of which Petitioner worked. On October 23, 1991, Alan Goldstein became Petitioner's immediate supervisor. Goldstein's work station was located in Okeechobee approximately three miles from Petitioner's work station. Goldstein remained Petitioner's immediate supervisor until Petitioner's termination. The Employee Handbook The District has an Employee Handbook that is designed to provide information and guidance to District employees regarding employment-related matters. As do all new District employees, Petitioner received a copy of the Employee Handbook upon being hired and its contents were reviewed with him during his orientation. The Employee Handbook contains the District's Attendance and Leave Policy (Policy No. 300), which addresses the subjects of "normal work hours" and "work breaks" as follows: NORMAL WORK HOURS All full-time regular and initial probationary employees shall perform their assigned duties for 40 hours each work week unless otherwise authorized. All part-time regular and temporary employees shall perform their assigned duties for the total number of hours for which compensation is received. The normal workday shall be 8 hours unless otherwise authorized by the employee's Division Director. WORK BREAKS All District employees are provided one work break during the first half of their workday and one work break during the second half of their workday, except in extreme emergency. No single work break shall exceed 15 minutes. An employee is not permitted to accumulate unused work breaks nor may the work break be used to cover an employee's late arrival or early departure from duty. All employees shall take a minimum of one half hour lunch break each workday. The following discussion is found in the Employee Handbook concerning the "Code of Ethics:" Florida has been a leader among the states in establishing ethical standards for public officials and employees and recognizing the right of her people to protect the public trust against abuse. Our state constitution was revised in 1968 to require that (a)a code of ethics for all state employees and non-judicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. Art III, Sec. 18, Fla. Constitution. The "Code of Ethics for Public Officers and Employees" by which the Legislature carried out this constitutional mandate is found in Chapter 112 (Part III) of the Florida Statutes. The purpose of the Code is to ensure that public officials and employees conduct themselves independently and impartially, not using their offices or positions for private gains other than remuneration provided by law and to avoid conflicts between public duties and private interest. . . . The standards of conduct summarized below generally apply to all District employees. The types of conduct prohibited are: Gifts- No public employee shall solicit or accept anything of value- including a gift, loan, reward, promise of future employment, favor, or service- that is based on any understanding that the vote, official action, or judgment of the employee would be influenced by such gift. Sec. 112.313(2), Fla. Stat. (1991). Unauthorized Compensation- No public employee or his/her spouse or minor child shall accept any compensation, payment or thing of value which, with the exercise of reasonable care, is known or should be known to influence the official action of such employee. Sec. 112.313(4), Fla. Stat. (1991). Doing Business with One's Agency- No public employee acting as a purchasing agent or acting in his/her official capacity shall, directly or indirectly, purchase, rent, or lease any realty, goods, or services from a business entity in which his/her spouse, or child is an officer, partner, director, or proprietor, or in which his/her spouse, or child (or any combination of them) has a material interest. Nor shall a public employee, acting in a private capacity, rent, lease, or sell any realty, goods or services to his/her own agency. Sec. 112.313(3), Fla. Stat. (1991). Conflicting Employment or Contractual Relationship- No public employee shall hold any employment or contractual relationship with any business entity or agency which is subject to the regulation of, or doing business with, the employee's agency. Nor shall an employee hold any employment or contractual relationship which will pose a recurring conflict between his/her private interests and his/her public duties or which would impede the full and faithful discharge of his/her duties. Sec. 112.313(7), Fla. Stat. (1991). Exemptions- Under certain circumstances the prohibitions of subsections (3) and (7) of Section 112.313, Florida Statutes, may not apply. Misuse of Public Position- No public employee shall corruptly use or attempt to use his/her official position or any property or resource within his/her trust, or perform his/her official duties, to obtain a special privilege, benefit or exemption for himself/ herself or others. Sec. 112.313(6), Fla. Stat. (1991). Disclosure or Use Of Certain Information- No public employee shall disclose or use information not available to the general public and gained by reason of his/her public position for his/her personal gain or benefit or the gain or benefit of others. Sec. 112.313(8), Fla. Stat.(1991). More specific ethics laws address financial disclosure and the reporting requirements which apply to Governing Board members, senior management, and employees with contracting authority. The above information has been provided to help you understand State Ethics Laws. The District supports and enforces these laws to the best of its ability and expects each employee to conduct their activities in a lawful manner. Conflicts of interest may be avoided by greater awareness of these Ethics Laws. If you are in doubt about the applicability of the ethics laws to your own circumstances or the circumstances of a subordinate or co-worker, contact the District's Office of Counsel. They will answer your questions or assist you in obtaining an opinion from the Commission on Ethics. Also included in the Employee Handbook is the District's Corrective Action Policy (Policy No. 803), which establishes standards governing non- executive employee conduct and discipline. Section F. of Policy No. 803 lists those acts of misconduct for which a non-executive District employee who has attained regular status may be disciplined. It provides in pertinent part as follows: The following forms of misconduct are unacceptable and subject an employee to corrective action based on the particular circumstances surrounding the incident. The list is provided merely as examples and is not intended to be all inclusive. The identification of these examples does not preclude the District's right to discipline or dismiss employees for other causes, including acts of misconduct which breach the requirements inherent in the employment relationship. 1. Unbecoming conduct: Any action or conduct by an employee which impedes the District's efforts, brings discredit on the District, impairs the operation or efficiency of the District or any employee, or impairs the employee's ability to perform his or her job. . . . 5. Absence Without Authorized Leave: Failure to obtain approval from the proper authority prior to any absence from work, except in the case of an emergency, illness or accident which requires the employee to be absent prior to receiving approval; Inexcusable or repeated failure to notify the appropriate Supervisor or division office of absence, due to sickness, within ten (10) minutes from the start of the normal work day; Being more than ten (10) minutes late to work for an inexcusable reason or on a repeated basis without notifying the appropriate Supervisor, or division office. . . . Unauthorized Use of District Property, Services, Equipment or Personnel: The use of any District property, services, equipment or personnel for any purpose other than District business. Employees shall be required to reimburse the District for the cost incurred by the District as a result of the unauthorized use of equipment or property. Improper or Careless Use of District Property, Including Vehicles: Failure to care for or properly use District property or equipment such as the failure to observe the proper speed limit while driving a District vehicle. . . . 11. Lying or Failure to Give Truthful or Requested Information: Oral or written statements that are deliberately inaccurate, incorrect or misleading but which do not constitute falsification of records. This includes lying or failure to provide information during an internal investigation. . . . 24. Violation or Disregard of Safety Practices: The failure to follow established safety practices as outlined in the District's Accident Prevention Manual. This includes failure to report any injury or accident; the performance of unsafe acts; or the failure to wear or use appropriate safety equipment. . . . Negligence: The failure to use ordinary or reasonable care, caution, attention, diligence or discretion in the performance of assigned duties and responsibilities. Falsification of a District Record: The intentional issuance of a false or incomplete report or record, either oral or written, or the intentional failure to issue a record regarding the performance of work duties, attendance, injury, illness, job qualifications or other work related matters. Policy No. 803 specifically provides for four basic types of "corrective action" to deal with acts of misconduct. They are, in order of severity: oral reprimand (OR); written reprimand (WR); suspension (S); and dismissal (D). In determining the appropriate "corrective action" to be taken in a particular situation, supervisory personnel must follow the "standards" set forth in Section G. of Policy No. 803, which provides as follows: This section has been established as a guide for use by Supervisors to help ensure that all employees receive similar treatment in like circumstances. The guidelines on severity of corrective action outlined in Section H. is not meant to be an exhaustive listing of all possible acts of misconduct or forms of corrective action. Appropriate corrective action of unlisted acts of misconduct may be derived by comparing the nature and seriousness of the offense to those listed in Section H. In many cases, the guidelines on severity of corrective action are based on the number of occurrences and the seriousness of the offense and are presented as a range of action which covers more than one form of corrective action. The use of a particular form of corrective action is not mandatory simply because it is listed in Section H. Realizing that some of the offenses listed will be more or less serious in certain cases, the supervisor taking the corrective action shall utilize good judgment in light of all available facts. The corrective action selected must ultimately be appropriate in light of the particular circumstances surrounding the incident and the employee's past performance and conduct record. For example, even for offenses where dismissal is not indicated for a first offense, dismissal on a first occurrence may be assessed for an aggravated offense or a continuous pattern of misconduct. Similarly, where dismissal is indicated, a less severe form of corrective action may be taken. This action may be taken so long as it is more severe than that given in the most recent prior occurrence that is still active, and is reasonably consistent with other cases of misconduct for other employees. Temporary and initial probationary employees may be suspended or dismissed without regard to the standards of corrective action. In determining the severity of corrective action to be applied, the authorized Supervisor should take into account the following variables: The severity of the specific act of misconduct. The circumstances under which the violation occurred. The consequences of the employee's actions in regard to its affect on the District operation and on other employees. The guidelines on severity of corrective action outlined in Section H. of this policy. The overall work record of the employee; length of employment; and the employee's prior history of other similar or unrelated corrective actions, including active and inactive offenses. The length of time since earlier corrective action, the similarity or dissimilarity of the offense, and the severity of earlier offenses. The following are among "the guidelines on severity of corrective action outlined in Section H." of Policy No. 803: 1. Unbecoming conduct: 1st occurrence- WR, S or D . . 5. Absence Without Authorized Leave (Does not affect scheduling or work of others): 1st occurrence- OR; 2nd occurrence- WR . . Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 1) Cost to District of less than $50.00): 1st occurrence- S; 2nd occurrence- S or D; 3rd occurrence: D Unauthorized Use of District Property, Services, Equipment, or Personnel (With intent to obtain personal gain: 2) Cost to District of more than $50.00): 1st occurrence- S or D; 2nd occurrence- D Improper or Careless Use of District Property (Not involving personal injury or property damage): 1st occurrence: OR . . . 11. Lying or Failure to Give Truthful or Requested Information: 1st occurrence- WR or S; 2nd occurrence- S or D; 3rd occurrence- D . . . 24. Violation or Disregard of Safety Practices (Not involving personal injury or property damage): 1st occurrence- OR . . . Negligence (Not involving personal injury or property damage): 1st occurrence- OR . . . Falsification of District Record: 1st occurrence- S or D; 2nd occurrence- D The Accident and Related Events In the latter part of September of 1991, Petitioner's personal vehicle was in an automotive repair shop in Stuart. On September 17, 1991, at Petitioner's request, Donald Hagan, Petitioner's subordinate, drove Petitioner to the repair shop in Stuart, which was outside of their assigned territory, in a District vehicle. The purpose of the trip was to ascertain whether the repairs on Petitioner's personal vehicle had been completed. Upon his arrival at the repair shop, Petitioner was advised that the necessary parts had not come in and that therefore it would be another week until he would be able to pick up his vehicle. A week later, on September 24, 1991, at approximately 1:00 p.m., Hagan was in his District vehicle in the parking lot outside the Okeechobee field station when Petitioner walked up to him. Petitioner told Hagan that the repairs on Petitioner's personal vehicle had been completed. He then asked if Hagan would give him a ride to the repair shop in Stuart so that he could pick up the vehicle. Hagan responded in the affirmative. Petitioner thereupon entered Hagan's District vehicle and sat down in the front passenger seat. After Petitioner was situated, Hagan drove off, headed in the direction of the repair shop. Before reaching their destination, Hagan and Petitioner were involved in an automobile accident when Hagan lost control of the vehicle and it ended up in a ditch. The vehicle was damaged and it was towed to West Palm Beach for repairs. Hagan sustained two fractured ribs as a result of the accident. Petitioner was also injured, but not as seriously as Hagan. Both received medical treatment for their injuries. Hagan's and Petitioner's ill-fated trip did not have any District- related purpose. Nonetheless, following the accident, Petitioner reported otherwise, notwithstanding that he knew that he was providing false information to the District. On the night of the accident, he told his then immediate supervisor, Edward Maciejko, over the telephone that he and Hagan were on their way to conduct an inspection of distressed cypress trees in St. Lucie County when the accident occurred. Petitioner also prepared an accident report in which he made the same misrepresentation. A workers' compensation claim was filed on behalf of Petitioner in reliance upon this misrepresentation. Initially, Hagan corroborated Petitioner's story about the purpose of their September 24, 1991, trip. Later, however, he told supervisory personnel the truth about the matter. For his part in the incident and the subsequent cover-up, he was reprimanded and received a two-day suspension. On two occasions following Hagan's revelation regarding the true purpose of the trip, Petitioner was provided an opportunity by Alan Goldstein, who had recently become Petitioner's immediate supervisor and was looking into allegations of misconduct against Petitioner, to recant the statements he had previously made regarding the matter. Petitioner, however, declined to do so and instead repeated what he had said earlier on the subject. 2/ The Speeding Ticket and Related Events On October 3, 1991, while driving his District vehicle to a work- related meeting in Lake Placid, Florida, to which he did not want to be late, Petitioner was stopped by a Florida Highway Patrol trooper and given a traffic citation for travelling 84 miles per hour in a 55-mile per hour zone. Petitioner had exceeded the posted 55-mile per hour speed limit, but by less than the trooper indicated on the citation. Nonetheless, for convenience sake, Petitioner did not contest the citation. On the day he received the citation, Petitioner telephoned Edward Maciejko, who was still his immediate supervisor at the time, and told Maciejko that he had been "flagged down" by a trooper earlier that day while on his way to Lake Placid in his District vehicle. Subsequently, during an investigation of alleged wrongdoing on Petitioner's part conducted after Alan Goldstein, had become Petitioner's immediate supervisor, Goldstein asked Petitioner if he had informed Maciejko about the traffic citation he had received on October 3, 1991. Petitioner responded in the affirmative to this inquiry. To the best of his recollection, he had so informed Maciejko and therefore believed that he was being truthful in his response to Goldstein's inquiry. The Loan and Related Events Dry Lake Dairy (Dairy) is an Okeechobee dairy farm that has been owned and operated by the Rucks family since 1958. J. Boyd Rucks is President of the Dairy. As President, it is his responsibility to deal with governmental agencies that exercise regulatory authority over the Dairy and its operations. The District is one of these governmental agencies. In or sometime prior to 1990, the Dairy received a surface water management permit from the District. It subsequently obtained a modification to the permit to engage in a ditch clearing operation. In November of 1990, the District issued a Notice of Violation (NOV) alleging that the Dairy had violated the terms of its permit. Petitioner was actively involved in the investigation that led to the issuance of the NOV. Following the issuance of the NOV, it was his responsibility to make sure that the necessary steps were being taken by the Dairy to correct the problems identified in the NOV. At first, he visited the Dairy on a regular basis to monitor its compliance efforts. Thereafter, these regular visits ceased and his monitoring activities were confined to flying over the Dairy during his monthly aerial inspection of his territory. By the middle of October of 1991, the Dairy had made substantial progress toward correcting the violation with which it had been charged by the District, but the matter had not been finally resolved. 3/ At the time, Petitioner needed to borrow $500.00. Notwithstanding that the enforcement action against the Dairy, in which he played an integral role, was still ongoing, Petitioner ill-advisedly decided to approach the Dairy's President and its representative in its dealings with the District, J. Boyd Rucks, about loaning him the money. Petitioner knew Rucks through Petitioner's work with the District. Their relationship was purely a professional one. They did not socialize. While Rucks, on behalf of the Dairy, often made cash advances to its employees, neither he nor the Dairy was in the business of making loans to members of the general public. Never before had either of them made a loan to a District employee. At around noon on October 14, 1991, Petitioner was in his District vehicle on his way back from a field inspection when he stopped by Rucks' home and asked Rucks if he would lend Petitioner $500.00. Rucks told Petitioner that he would have to discuss the matter with other members of his family and that Petitioner should return later in the day for an answer. At around 3:30 or 4:00 p.m. that afternoon, Petitioner returned to Rucks' home in his District vehicle. 4/ Having obtained the approval of the family members to whom he had spoken, Rucks gave Petitioner $500.00 from the Dairy's petty cash fund. Petitioner was to repay the money within ten days. There was no interest charged. Petitioner did not believe that he was doing anything wrong in soliciting and accepting this loan from Rucks. There was no understanding on the part of either Petitioner or Rucks that the making of this loan to Petitioner would in any way influence Petitioner in the discharge of his duties as an employee of the District. Petitioner never suggested, nor did Rucks expect, that the Dairy would receive favorable treatment in its dealings with the District as a result of the loan. The two viewed the transaction as a personal matter unrelated to District business. Because of illness that required hospitalization, Petitioner was unable to repay the loan within ten days. The loan was repaid in full within three weeks. Petitioner's Personal Circumstances During the period of time in which the alleged acts of misconduct in the instant case were committed, Petitioner was experiencing a significant amount of stress in his personal life. He was having money problems. In addition, his relationship with his wife was deteriorating. The day after he received the loan from Rucks, Petitioner was admitted to a psychiatric hospital for treatment. He remained hospitalized for two weeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the District enter a final order (1) finding that disciplinary action, in the form of a suspension covering the period from January 9, 1992, to the date of the issuance of said final order, should be taken against Petitioner, but based only upon those acts of misconduct described in Conclusion of Law 70 of this Recommended Order, (2) reducing Petitioner's dismissal to such a suspension, and (3) reinstating Petitioner to the position he previously held or a comparable position. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1992. STUART M. LERNER 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 26th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3101 The following are the Hearing Officer's specific rulings on what the parties have labelled as "findings of facts" in their proposed recommended orders: Petitioner's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that this proposed finding states that "[e]mployees receive the Handbook at new employee orientation," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 4-7. Accepted and incorporated in substance. 8. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 9-11. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding references Edward Muldowney's participation in the internal investigation and Muldowney's "extensive investigative experience," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 15-16. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 20-22. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of legal argument. Accepted and incorporated in substance. Rejected because it is not supported by persuasive competent substantial evidence. 25a.-25b. To the extent that these proposed findings state that Petitioner was absent during non-break periods of the workday on September 24, 1991, and on October 14, 1991, without the authorization and approval of the appropriate authority, they have been rejected because they are not supported by persuasive competent substantial evidence. Otherwise, they have been adopted and incorporated in substance. 25c.-26a. Accepted and incorporated in substance. 26b. Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance. 26c. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony adduced at hearing than findings of fact based upon such testimony. 26d. Accepted and incorporated in substance. 26e. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence. 26f. Accepted and incorporated in substance. This proposed finding, which states that Petitioner lied or failed to give truthful or requested information on six, rather than three, occasions, has been rejected because it is not supported by persuasive competent substantial evidence. 27a. Accepted and incorporated in substance. 27b. First, second and sixth sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings state that Goldstein "specifically asked [Petitioner] if any part of the trip on the day of the accident was for personal reasons" and Petitioner "lied when he responded 'no'" to this question, they have been accepted and incorporated in substance. Otherwise, they have been rejected because they are not supported by persuasive competent substantial evidence. 27c. To the extent that this proposed finding states that Goldstein talked to Petitioner about the September 17, 1991, trip to Stuart during the discussion referenced therein, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 27e. Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. First, second, third and sixth sentences: Accepted and incorporated in substance; Fourth sentence: To the extent that this proposed finding states that Hagan "was a passenger in the vehicle at the time," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony; Fifth sentence: Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based on such testimony. 30-32d. Accepted and incorporated in substance. 32e. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed suggests that Petitioner did not perform "his regulatory functions, including those at the Dry Lake Dairy, in an unbiased manner" as a result of the loan, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. 10/ Third and fourth sentences: Rejected because they are not supported by persuasive competent substantial evidence. 11/ 33-33b. Rejected because they concern alleged misconduct outside the scope of the charges specified in the notice of termination. 33c. Rejected because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. Petitioner's Proposed Findings of Fact Accepted and incorporated in substance. To the extent that this proposed finding states that Petitioner's assigned territory included Martin County, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. To the extent that this proposed finding recites verbatim the "Grievance Resolution," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that this proposed finding states that Respondent was "summarily" dismissed upon given his notice of termination without the opportunity to respond and that he never before "had an evaluation which was less than satisfactory," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that Petitioner was deprived of "due process," that he was terminated "arbitrarily" and that the charges against him "are so vague as to make them void," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.
