The Issue Whether Respondent is, for purposes of Chapter 760, Florida Statutes, an "employee" of Petitioner. Whether Respondent has committed an unlawful employment practice against Petitioner by failure to hire him on the basis of race, to wit: African-American.
Findings Of Fact Petitioner is an African-American male. At all times material, he was employed as a member of the Flagler County, Florida, Sheriff's Department. In 2001, he had worked for the Sheriff's Department in some capacity for twenty years and had held the rank of sergeant for twelve years. In June 2001, he was a Sheriff's Department patrol sergeant. As such, he supervised Sheriff's Department officers on patrol. Respondent City of Bunnell is a municipality located in Flagler County, Florida. It is governed by a five-person City Commission, including its mayor. At all times material, the Commissioners were Mayor King and Commissioners Fell, Henry, Edmonson, and Marquis. Herein, Petitioner asserts that Respondent City discriminated against him due to his race because he was not appointed to the position of Acting Police Chief of the City of Bunnell, pursuant to an interlocal agreement the City never entered-into with the Sheriff's Department In early 2001, the City's full-time Police Chief resigned, and the City began to advertise for a full-time replacement. Petitioner lived in Bunnell, and was aware of the open position of full-time City Police Chief, but he elected not to apply. One reason for his decision not to apply was that he had twice applied unsuccessfully in the mid-1990's. Another reason was that by 2001, Petitioner was set in his career path with the Flagler County Sheriff and with his accruing State retirement benefits. Employment with the City would not have continued to accrue him State retirement benefits. At all times material, all of the City police officers were Caucasian. While seeking a full-time Police Chief, the City kept the City Police Department functioning by relying on a series of "Acting Police Chiefs"; Police Corporal Harrison; and Donna Kearney, Administrative Assistant to the City Manager. At all times material, Corporal Harrison was supervisor for the City Police Department's "road patrol." Donna Kearney had handled some clerical and scheduling functions of the City Police Department since the City had been seeking a full-time Chief of Police, but she was not a police officer. She also has never been certified as a law enforcement officer by the Florida Department of Law Enforcement. At all times material, James Manfre was the elected Sheriff of Flagler County. He had assumed that office on January 2, 2001. The Sheriff is a constitutional officer and the chief law enforcement officer of Flagler County. Sheriff Manfre is Caucasian. His main offices are not in Bunnell, Florida. The Bunnell City Police Chief was restricted in what she/he could do. She/he had to have City Manager approval to hire, to promote, or to reprimand police officers. The Bunnell City Police, including the Police Chief, were expected to work out of City property, the Police Department, located in Bunnell. Despite a series of "Acting" Chiefs of Police who served while the City advertised the full-time position, by June 2001, the efficiency of the City Police Department had been suffering for some time. City police officers' morale was low, and their attitudes were bad. Citizens were complaining about their frequency of patrols and general inefficiency. The Saturday before the June 19, 2001, City Commission Meeting, Acting Chief of Police John Ashton quit as Chief and returned to regular duty as a Bunnell City Police Sergeant. This apparently was due to a salary dispute with the City. On June 19, 2001, the City Commission met to discuss Acting Chief/Sergeant Ashton's compensation. Present at the June 19, 2001, City Commission Meeting were Mayor King (gender and race not of record); and Commissioners Fell (male Caucasian), Henry (female African- American), and Edmonson (male Caucasian). Commissioner Marquis was absent. Commissioner Edmonson was a former City Police Chief who had been fired several years previously for making a racist comment against African-Americans. At the June 19, 2001, City Commission meeting, Mayor King and Commissioner Fell took a moment to cite the City Police Department for doing a good job. Corporal Harrison also spoke to the Commission. Prior to June 19, 2001, the City had approached Sheriff Manfre about the Sheriff's Office taking over the City police functions until the City could hire a full-time police chief. Sheriff Manfre attended the June 19, 2001, City Commission meeting and made a presentation concerning having the Sheriff's Department supervise the City Police Department's road patrol for a period of 90 days to allow time for the City to find and hire its own permanent Police Chief. After the Sheriff's presentation, Commissioner Fell moved a vote, which was seconded by Commissioner Henry.1/ The Motion failed to get a majority. After further discussion, there was a motion to reconsider. Ultimately, a motion to start negotiating the proposed interlocal agreement was passed unanimously by Commissioners King, Fell, Henry, and Edmonson.2/ Negotiations between the Sheriff and the City ensued, and the Sheriff's attorney drafted a proposed interlocal agreement. On June 22, 2001, another City Commission meeting was held. At that time, only three City Commissioners were present: King, Fell, and Henry. Edmonson and Marquis were absent. Thus, there was no quorum to conduct business. Nonetheless, Sheriff Manfre spoke before the Commission, as did several members of the public and Corporal Harrison. Another Commission meeting was scheduled for June 25, 2001, to, among other things, vote on whether or not to approve the proposed interlocal agreement. Upon the hopeful predictions of his attorney and his own optimism because the City had initially approached him, Sheriff Manfre signed the proposed draft of the interlocal agreement on June 22, 2001, and wrote in that the agreement was to be effective as of June 22, 2001. That draft was never approved by the City Commission or signed by anyone on behalf of the City. Paragraph 2 of the proposed interlocal agreement provided, in part, "This Agreement shall be interpreted and administered in such a manner that it will not constitute a transfer, merger, or consolidation as those terms are used in the Constitution of the State of Florida or in any statute of the State of Florida." There was no clear consensus among the witnesses who testified about whether the language of the proposed agreement was designed to provide the City with an interim police chief or with a supervisor of its road patrol, a position already occupied by Corporal Harrison. The Sheriff testified that he had in mind to detail Petitioner to the City Police Department position, whatever that position was, and that he had spoken to Petitioner about it. The Sheriff's intent was based on Petitioner's rank; capabilities; and familiarity with City issues, due to Petitioner's residency in Bunnell. The Sheriff envisioned Petitioner operating out of the City Police Department; having daily interaction with the City police officers; and dictating to/directing the City police officers. Petitioner never read the proposed interlocal agreement, yet he "knew" that, under it, he would be supervising road officers, and he assumed that if the proposed interlocal agreement went through, he would become the City Police Chief. The proposed interlocal agreement also is not clear as to whether the Sheriff was to provide an interim police chief or a supervisor of the City's road patrol. Paragraph 4 of the proposed interlocal agreement set forth the services to be provided by the Sheriff. Specifically, the Sheriff would "provide supervision for all necessary and appropriate law enforcement services in and for the CITY." Paragraph 4 also provided that a "command officer" would be assigned as "supervisor" of the City's patrol deputies. Paragraph 12 of the proposed interlocal agreement provided, in pertinent part: PERSONNEL: The SHERIFF shall have authority for the hiring, training, assignment, discipline and dismissal of all law enforcement personnel subject to his supervision under this Agreement. The SHERIFF shall also be legally responsible for the action of law enforcement personnel performing services under this Agreement in accordance with law. Any employee of the SHERIFF is not for any purpose whatsoever, an agent, employee, or legal representative of the City and are in no way authorized to make any contract, agreement or representation on behalf of the CITY or to create any obligation on behalf of the CITY. (Emphasis supplied) The Sheriff's unilateral hiring and disciplining authority in paragraph 12 of the proposed interlocal agreement would have been a departure from City Manager authority in that regard. (See Finding of Fact 11). Paragraph 9 of the proposed Agreement specifically designated the Sheriff as an "independent contractor." In addition to the foregoing explicit language contained in the draft proposal at paragraph 2 (see Finding of Fact 23) and paragraph 9, Sheriff Manfre's testimony supports the concept that the Sheriff would have continued to be Petitioner's employer, whatever Petitioner's title, if the proposed interlocal agreement had been approved by the City Commission. The Sheriff was clear that at all times the supervising officer he would designate under the agreement would remain an employee of the Sheriff's Department, even while carrying out duties for the City. Paragraph 18 of the proposed agreement granted the Sheriff "authority to expend funds from the existing Bunnell Police Department budget" to operate the City Police Department under the Sheriff's supervision. Despite some contrary language, one could reasonably interpret the proposed agreement to delegate to the Sheriff decisions on how much and for what purposes City money would be spent on City law enforcement. Paragraph 17 of the proposed interlocal agreement provided that the agreement would terminate after 90 days from its effective date, unless both parties agreed to review it. Also, either party could terminate the agreement prior to the end of its term upon 30 days' written notice. Paragraph 17 also reserved to the City the right to require the Sheriff to transfer and replace any personnel, who, in the sole determination of the City, failed to perform consistent with City standards. This paragraph would seem to have permitted the City unilateral removable rights over whomever the Sheriff could appoint under the interlocal agreement. On June 25, 2001, the City Commission met and again discussed the proposed interlocal agreement. Commissioners King, Fell, Henry, and Edmonson were present. Marquis was again absent. Several members of the public spoke on the issue of whether the agreement should be approved. Among others, Donna Kearney spoke against what she saw as "the Sheriff's proposal," because she interpreted the proposed agreement as duplicating the position of "road supervisor," which was already filled by Corporal Harrison of the City Police Department, and because she felt a permanent police chief was needed. Delories Hall, an African-American citizen, spoke in support of the proposed agreement because she felt her neighborhood, which is predominantly African-American, was poorly protected by the City Police. Corporal Harrison spoke again at the June 25, 2001, meeting. Although the content of his comments is not of record, it may be presumed, from the evidence as a whole, that he opposed the interlocal agreement. On June 25, 2001, some City Police Officers spoke to the Commissioners, generally opposing the agreement between the City and the Sheriff. They felt their professional performance had recently improved and that they should be given another chance to correct the problems that had led to the proposal of the interlocal agreement. After the public discussion closed on June 25, 2001, Commissioner Henry made a motion to accept the proposed interlocal agreement, with several revisions. Commissioner Edmonson seconded Commissioner Henry's motion.3/ The vote resulted in King and Henry supporting the proposed agreement, with revisions, and Commissioners Fell and Edmonson opposing the proposed agreement, even if revised. As a result of the "two- to-two" vote, the motion did not pass, and the proposed agreement which had previously been signed by the Sheriff, never took effect. The record herein does not explain how the proposed revisions were to be presented to the Sheriff by the City Commission. The exact revisions proposed by the Commission are not of record. They were not interlineated over the Sheriff's signature on the two copies of his proposed draft of the interlocal agreement which are in evidence, nor did witnesses seem clear whether there ever were any written proposed revisions. Finally, the Commission's Minutes in evidence do not reflect the proposed revisions. Commissioner Fell testified, without refutation, as to several reasons he had ultimately voted against the proposed agreement in any form. None of his reasons addressed race. Most of his concerns were financially based, but he also worried that the Sheriff was making a "power play." From Mr. Fell's point of view, if the proposed interlocal agreement were approved, the Sheriff would be supervising law enforcement throughout the entire county, and through similar interlocal agreements, would be supervising law enforcement in all but two cities within the county. Although the City of Bunnell had problems with its police department, Mr. Fell wanted to give the local police officers another chance. He expressed confidence in Corporal Harrison. Commissioner Edmonson testified that on June 25, 2001, he voted against the proposed agreement because several City police officers, including Corporal Harrison, had spoken to him before the Commission meeting and asked that he give them one more chance to operate without outside help, and that he had told them he would vote them another chance, but it would be their last chance. The Sheriff's attorney advised the Sheriff of the negative June 25, 2001, Commission vote by phone on June 25, 2001. The Sheriff, in turn, placed a phone call to his friend, Commissioner Edmonson. Commissioner Edmonson and Sheriff Manfre spoke by cell phone while the Sheriff was driving on the Florida Turnpike. Their respective versions of this bad connection and frequently distracted conversation are very different. According to the Sheriff, Edmonson told him that Edmonson had "heard" that some of the City police officers would not report to an African-American. However, even Sheriff Manfre conceded that Edmonson did not say this knowledge motivated Edmonson's vote against the proposed interlocal agreement. Commissioner Edmonson denied the statement attributed to him by Sheriff Manfre. He claimed to have stated to the Sheriff that some City police officers had a problem with Petitioner, personally, and that the Sheriff needed to check into that problem. Edmonson further testified that when the Sheriff asked if the problem was because Petitioner was African- American, he, Edmonson, had denied that race was the issue, and the Sheriff hung-up. On this point, Commissioner Edmonson is the more credible witness. Commissioner Edmonson further testified that if the Sheriff had not terminated their cell phone conversation when he did, Edmonson would have explained to the Sheriff that the City police officers had told Edmonson they were upset over an incident several weeks prior to June 25, 2001, when Petitioner, acting for the Sheriff's Office, had released an individual in City Police Department custody. Because Petitioner denied that any such release of an arrestee by Petitioner ever occurred, and because there was no explanation how, without an interlocal agreement in force, Petitioner would have had any authority to release a City arrestee, it has not been proven that such an incident occurred. However, there was no evidence to refute Edmonson's testimony that this story had been told him by police officers and no evidence that race, rather than Petitioner's personality or an interlocal power struggle, influenced Edmonson's vote on June 25, 2001. Finally, paragraph 17 of the proposed agreement (see Findings of Fact 33-34) would have given the City a unilateral right to require transfer of anyone assigned by the Sheriff pursuant to the interlocal agreement, and even to terminate the agreement, itself, upon 30 days notice. Such an options suggest that if race had been an issue, it could have been addressed at any time later. A few days after June 25, 2001, the Sheriff issued a press release denouncing the City Commission vote as "racist." Much public uproar ensued. Then the Sheriff appeared at an NAACP meeting with Commissioner Edmonson "to heal" the situation created by his press release. There were no further negotiations on an interlocal agreement. Corporal Harrison next served as interim City Police Chief. In either August or September 2001, the City finally hired a full-time Police Chief. The hiree was Caucasian. Apparently urged on by the Sheriff's public stance, Petitioner filed a Charge of Discrimination with the Commission on or about March 1, 2002. Therein, Petitioner named the "Flagler County Sheriff's Office" as the offending employer or governmental agency. However, on April 5, 2002, Petitioner amended his Charge to reflect that the employer or governmental agency involved was the City of Bunnell. No evidence was presented as to any damages Petitioner incurred due to the tied vote of the City Commission on June 25, 2001. There was no evidence Petitioner would have been paid more money or would have received greater fringe benefits if he had been appointed by the Sheriff to serve the City in any capacity under the proposed agreement. There was no evidence Petitioner did not continue to receive his regular compensation and benefits from the Sheriff after the City rejected the proposed agreement. Petitioner has prayed for attorney's fees, but by agreement, the parties have deferred that issue until the merits of the case are determined by the final order.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2004.
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on April 27, 2018, and on May 3, 4, 8, 9, 12, 16, 17, 24, and 31, 2018, as charged in the agency action letter dated June 22, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. Mr. Boyd has worked for ECUA since at least November of 1997 and acknowledged on June 25, 2012, that a copy of the Manual was available to him. During all times relevant to the instant case, Mr. Boyd was assigned to ECUA’s patch services division (“patch crew”). A significant part of the patch crew’s work involves filling holes left after other ECUA employees have performed utility work. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break and two 15-minute breaks. In addition to his employment with ECUA, Mr. Boyd owns an automobile mechanic shop in Pensacola, Florida, known as Boyd’s Motorsports. An anonymous e-mail to Gerry Piscopo, ECUA’s Deputy Executive Director of Maintenance and Construction, alleged that the patch crew was leaving work early and incurring overtime by intentionally being lackadaisical in completing work assignments. As a result, ECUA initiated an investigation of the patch crew’s daily activities. ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their daily activities. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Mr. Willette’s work was facilitated by global positioning devices (“GPS”) that ECUA installed on every truck utilized by the patch crew. The GPS devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. Findings Regarding the Allegations from April 27, 2018 Mr. Boyd filed a “Daily Overtime Report” noting that he worked from 3:30 p.m. to 8:30 p.m. on April 27, 2018. Because the patch crew’s workday normally ends at 3:30 p.m., Mr. Boyd claimed five hours of overtime. Mr. Willette was following Mr. Boyd that night and observed him arriving at Boyd’s Motorsports in an ECUA truck at 7:38 p.m. Mr. Boyd left Boyd’s Motorsports at 8:02 p.m. Soon afterward, Mr. Willette lost visual contact with the ECUA truck driven by Mr. Boyd and was unable to follow Mr. Boyd to his next destination.2/ Mr. Boyd testified that he was preparing for the next day’s work assignments when he arrived at Boyd’s Motorsports that evening. According to Mr. Boyd, he and other ECUA employees would freely use resources available at Boyd’s Motorsports in order to further ECUA work. Mr. Boyd also testified that he was either: (a) in route to address a customer complaint when he left Boyd’s Motorsports at 8:02 p.m.; or (b) driving the ECUA truck to his home because he had been ordered to proceed directly to a particular worksite the next morning. Mr. Boyd’s testimony about the extent to which he and other ECUA employees freely utilized the resources of Boyd’s Motorsports to facilitate ECUA work lacked credibility.3/ As a result, the preponderance of the evidence demonstrates that Mr. Boyd was not working on ECUA business when he stopped at Boyd’s Motorsports from 7:38 p.m. to 8:02 p.m. on April 27, 2018. Therefore, Mr. Boyd erroneously reported working five hours of overtime that day. Findings Regarding the Allegations from May 3 and 4, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 8.5 hours of overtime from 3:30 p.m. to 12:00 a.m. on May 3, 2018. He filed another “Daily Overtime Report” indicating he worked seven hours of overtime from 12:00 a.m. to 7:00 a.m. on May 4, 2018. The majority of the claimed overtime pertained to an assignment on Cervantes Street in downtown Pensacola involving a sewer system repair. Another crew led by Michael Killen was responsible for performing the primary repair work, and the patch crew was to move in after Mr. Killen’s crew had completed its work. Mr. Killen’s crew arrived at the worksite at 7:00 p.m. on May 3, 2018, and finished its work at 3:30 a.m. Even though Mr. Killen’s crew was still working, the patch crew arrived onsite several hours prior to Mr. Killen’s crew completing its work. While the patch crew provided whatever assistance it could during that downtime, it spent most of that time waiting for Mr. Killen’s crew to leave. When Mr. Killen’s crew left at 3:30 a.m., the patch crew began actively working. Given that the worksite was in downtown Pensacola, it is reasonable to infer that the work needed to be completed as quickly as possible. Therefore, it was not unreasonable for the patch crew to be onsite and ready to immediately begin its work.4/ In addition, the testimony indicated this was a complex assignment for all concerned and that the patch crew may have provided valuable assistance to Mr. Killen’s crew. The preponderance of the evidence does not demonstrate that Mr. Boyd erroneously reported the overtime he worked on May 3 and 4, 2018. Findings Regarding the Allegations from May 8, 2018 On May 8, 2018, Mr. Willette observed Mr. Boyd and a coworker driving an ECUA truck with several bags of concrete to Boyd’s Motorsports. Mr. Willette shot video of Mr. Boyd and his son Tony loading the concrete bags onto a pickup truck driven by Tony Boyd. Mr. Boyd testified that the concrete had to be disposed of because the bags had become wet and the concrete inside was ruined. Rather than using the ECUA truck to transport the concrete to a landfill or some other disposal area, Mr. Boyd had his son, who was not an ECUA employee, dispose of the concrete. As for why he did not use the ECUA truck to take the concrete directly to a disposal area, Mr. Boyd explained it would have been too time consuming given the locations of the patch crew’s work assignments that morning. Multiple aspects of Mr. Boyd’s testimony lacked credibility: (a) that ECUA routinely allowed concrete to become ruined through exposure to moisture; (b) that Mr. Boyd enlisted someone not employed by ECUA to dispose of ECUA property; (c) that Mr. Boyd did not need authorization in order to dispose of the concrete; and (d) that Mr. Boyd was concerned about spending an excessive amount of time in transit from a landfill to a worksite. The preponderance of the evidence demonstrates Mr. Boyd did not have authorization to take the concrete. Mr. Willette also observed Mr. Boyd driving the same ECUA truck to a CVS pharmacy and spending 16 minutes there on May 8, 2018. While Mr. Boyd had no business purpose for stopping at the pharmacy, it is certainly possible that this stop occurred during one of his authorized 15-minute breaks or that it was a bathroom stop.5/ The preponderance of the evidence does not demonstrate that Mr. Boyd violated any Manual provisions when he stopped at a pharmacy on May 8, 2018. Findings Regarding the Allegations from May 9, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 2.5 hours of overtime on May 9, 2018. However, ECUA did not present any exhibits to substantiate its allegation that Mr. Boyd left work at 5:49 p.m. The preponderance of the evidence does not demonstrate that Mr. Boyd filed an erroneous timesheet on May 9, 2018. Findings Regarding the Allegations from May 12, 2018 On May 12, 2018, Mr. Willette began following Mr. Boyd at 9:08 a.m. After completing an assignment on East Chase Street, Mr. Boyd testified that he worked on three other assignments on Creighton Road, Spanish Trail, and Davis Highway before finishing his workday at 3:05 p.m. Mr. Willette testified that he did not see Mr. Boyd performing any meaningful work on Creighton Road, Spanish Trail, and Davis Highway. The relevant GPS report indicates the ECUA truck utilized by Mr. Boyd that day was idling when no work was being performed. Because Mr. Willette’s testimony was more credible, the preponderance of the evidence demonstrates that Mr. Boyd did no work after leaving East Chase Street on May 9, 2018. Findings Regarding the Allegations from May 16, 2018 Mr. Boyd’s timesheet for May 16, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd on May 16, 2018. He observed Mr. Boyd and a coworker leaving ECUA that morning and driving directly to Dodge’s Chicken Store. Mr. Boyd remained inside the store for a few minutes and left appearing to be carrying two food items. Mr. Willette observed Mr. Boyd having lunch with an unidentified female from 11:30 a.m. until 12:16 p.m. Mr. Boyd drove his personal vehicle from ECUA property at 3:15 p.m. and arrived at a J.C. Penny’s store at approximately 3:29 p.m. Mr. Boyd drove away from the store at approximately 3:33 p.m. with another unidentified female. The preponderance of the evidence demonstrates that Mr. Boyd did not work eight hours on May 16, 2018. The stop at Dodge’s Chicken Store could have been one of Mr. Boyd’s 15-minute breaks. However, as noted above, patch crew members have a 30-minute lunch break, and Mr. Boyd spent 46 minutes at lunch that day. Also, while a patch crew member’s day usually ends at 3:30 p.m., Mr. Boyd left work at 3:15 p.m. Findings Regarding the Allegations from May 17, 2018 Mr. Boyd’s timesheet for May 17, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd that day and observed him leaving Baptist Hospital at 8:11 a.m. following a medical appointment. Mr. Boyd then proceeded to Boyd’s Motorsports. The preponderance of the evidence demonstrates that Mr. Boyd’s May 17, 2018, timesheet is inaccurate. He was not continuously working from 7:00 a.m. to 3:30 p.m. on May 17, 2018. Findings Regarding the Allegations from May 24, 2018 Mr. Boyd’s timesheet for May 24, 2018, indicates he reported to work at 6:57 a.m. and left work at 3:30 p.m. It also indicates he worked eight hours that day. Therefore, his time entries indicate he took a standard 30-minute lunch break that day. Mr. Willette observed Mr. Boyd and a coworker meeting a third man for lunch at Miller’s Ale House at 11:08 a.m. that day. The trio left the restaurant at 12:17 p.m. Mr. Boyd testified that the third man was an ECUA supervisor and that work was discussed over lunch. Even if that assertion is accurate, there is no dispute that Mr. Boyd’s lunch on May 24, 2018, exceeded 30 minutes. The preponderance of the evidence demonstrates that Mr. Boyd’s May 24, 2018, timesheet is inaccurate. Findings Regarding the Allegations from May 31, 2018 Mr. Boyd’s timesheet for May 31, 2018, indicates he arrived at work at 6:57 a.m. and left at 3:30 p.m. Mr. Willette photographed Mr. Boyd driving his personal vehicle from ECUA property at 7:10 a.m. A coworker picked up Mr. Boyd at Boyd’s Motorsports approximately two hours later. The preponderance of the evidence indicates that Mr. Boyd’s May 31, 2018, timesheet is inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Robert D. Boyd, Sr., violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (17), leaving a work station without authorization; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; Section B-13 A (27), theft or stealing; Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law; and Section B-37, vehicle and equipment idle reduction. DONE AND ENTERED this 21st day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 21st day of September, 2018.
The Issue Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of his age? Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of a handicap or a perception that he had a handicap?
Findings Of Fact Universal operates a theme park in Orlando, Florida. Universal employed Mr. Fischer as an Industrial Automation Technician (Electrical) for approximately 20 years. From May 27, 2011, until June 15, 2011, Mr. Fischer was on approved medical leave. After that, he returned to work with no activity restrictions. Mr. Fischer's date of birth is July 2, 1960. Universal discharged Mr. Fischer on July 11, 2011. Universal discharged Mr. Fischer for failure to properly clean a bilge pump on June 26, 2011, and for falsely certifying that he had cleaned the pump. Cleaning the pump was a preventative maintenance procedure that Mr. Fischer had performed for most of his career with Universal. The pumps are in the bilge or bottom of the boats used in Universal's Jaws ride. Each boat carries approximately 48 passengers around an artificial island in a man-made lagoon. The ride simulates the experience passengers might have boating in the waters depicted in the movies "Jaws" while the shark swam the waters. The boats ride on rails and are moved about by hydraulic arms. The bilge pumps are important protection for the $8,500.00, engines in the boats. If the pumps fail, water accumulates in the bilge and can cause very costly damage to the engines. On June 26, 2011, Mr. Fischer worked from 6:00 a.m. until 2:30 p.m. His duties that day included cleaning and servicing three bilge pumps. Mr. Fischer completed Universal's standard preventive maintenance form confirming he had cleaned and serviced the pumps. Mr. Christopher Cole, a former supervisor, examined the pumps after Mr. Fischer's shift ended. They had not been properly cleaned. The float switches were caked with sludge. If properly cleaned, they would not have been. The float switch is critical to operation of the pump. It turns the pump on when water reaches an unacceptable level in the bilge. Ricky Stienker, Mr. Fischer's supervisor at the time, terminated Mr. Fischer on July 11, 2011, for failure to properly clean the pumps and falsely representing that he had cleaned them. In 2008 and 2009, Mr. Fischer's annual reviews rated him as less effective. Then in 2010, the review rated Mr. Fischer as highly valued. But during his career, Mr. Fischer had received eight different counselings for poor performance. Mr. Fischer used Universal's appeal process to contest his discharge. David Winslow, senior vice president of the Technical Services Division, denied his appeal. There is no credible evidence of offenses committed by other employees of any age or physical condition that were similar to Mr. Fischer's failure to properly clean the pumps and his misrepresentation that he had cleaned them. Universal's employee handbook includes a clear policy requiring employees to be honest and trustworthy in all of their business activities and relationships. It also, clearly states that acts of dishonesty are grounds for immediate discharge. Mr. Fischer received the employee handbook when he began employment with Universal. Mr. Fischer has diabetes. His previous supervisor, Mr. Cole, knew this because he had observed Mr. Fischer taking medication that Mr. Cole also took. Mr. Cole also has diabetes and has had it for approximately 25 years. Mr. Cole did not perceive having diabetes as a handicap. There is no evidence that Mr. Stienker, who made the decision to discharge Mr. Fischer, knew Mr. Fischer had diabetes. There is no persuasive, credible evidence that Mr. Fischer had a handicap or that his supervisors or any management employee of Universal perceived Mr. Fischer as having a handicap. Consequently, there is no persuasive, credible evidence that a handicap or perception of handicap was a factor in Universal's discharge of Mr. Fischer. There is no evidence establishing who filled Mr. Fischer's position or the age of that person. There is no persuasive, credible evidence that Mr. Fischer's age was a factor in Universal's decision to discharge him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Fischer's Petition for Relief. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 17th day of August, 2012.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying and the entire record herein, I hereby make the following relevant factual findings. Respondent, Jack E. Yates, was certified by the Petitioner as a law enforcement officer on August 30, 1982, and was issued certificate number 02- 35282. (Stipulation Tr. p. 67) Respondent, Anthony F. Ortiz, was certified by Petitioner as a law enforcement officer on December 3, 1984, and was issued certificate number 12- 84-002-04. (Stipulation Tr. p. 67) On March 26, 1985, at approximately 8:00 p.m., Respondent Ortiz met with Respondent Yates at the "Zippy Mart" convenience store in Fellsmere. Respondent Ortiz was on duty and was working the 4:00 p.m. to 12:00 midnight shift. Respondent Ortiz initiated the conversation with Respondent Yates by asking when Respondent Yates could repair Respondent Ortiz' jeep. Ortiz' jeep had been in an accident and Respondent Yates did auto paint and body work as a hobby. Respondent Yates, after a brief conversation about the jeep, told Respondent Ortiz that he, (Yates) had been terminated as a Fellsmere police officer that day and that he suspected that Marion Turner, the town's vice mayor, was responsible for his termination. Respondent Yates inquired if Respondent Ortiz knew where Marion Turner lived. The town of Fellsmere is approximately one mile square. Respondent Ortiz told Respondent Yates that he did and that he would direct him to Marion Turner's home. During the conversation, Respondent Ortiz asked Respondent Yates why he wished to know where the vice mayor lived and Respondent Yates stated that he wanted to talk to Vice Mayor Turner "because I want to kick his ass [sic] and get something straight with Marion Turner." Respondent Ortiz, having agreed to show Respondent Yates where Mr. Turner lived, did so by having Respondent Yates follow his patrol car in his truck. Respondent Ortiz flashed the squad car's brake lights to indicate to Respondent Yates where Mr. Turner lived. Respondent Ortiz continued on routine patrol until he heard a report of a disturbance at Marion Turner's home on his police radio. Respondent Ortiz heard Respondent Yates indicate that he was going to Marion Turner's house to straighten a matter out and while he (Ortiz) acknowledged hearing Respondent Yates state that he might have to "kick his ass sic] and get something straight with Marion Turner," Respondent Ortiz considered that that was just an idle threat and that nothing would come of Yates' remarks. 2/ After Respondent Ortiz showed Respondent Yates the Turner residence, Respondent Yates parked his truck behind the Turner home and got out, leaving his companions, James Spivey, Robert Carlton and William Yates (Respondent's brother) in the truck. Respondent went to the front door of the Turner home and knocked. Inside were Marion Turner, his four year old son, Mary Turner and a neighbor/friend, Howard Ward. Mr. Turner did not expect Respondent Yates' visit. Mr. Turner answered the door and saw Respondent Yates standing outside. Respondent Yates asked Turner if he could see him outside, whereupon Turner replied yes. Mary Turner was painting the trailer and had removed all of the drapes from the front windows. She therefore had a clear view of the outside. When Turner closed the door upon exiting the trailer, he was struck in the face by Respondent Yates, an altercation ensued and they struggled on the ground in front of Turner's trailer for a few minutes. Prior to Respondent Yates striking Turner, Turner had not threatened Respondent Yates. As Ms. Turner exited the trailer, she found Respondent Yates on top of her husband who was struggling on the ground trying to free himself from Yates. When she suggested that violence was not the solution to their differences, Respondent Yates told her to go back inside the house or he would knock her teeth out. (Tr. p. 30) Howard Ward emerged from the trailer shortly after Ms. Turner returned back inside. Mr. Turner's son, who had gone outside with his father initially, had come back inside and summoned Mr. Ward to "come out here and help. They are beating up on my daddy." Mr. Ward found Marion Turner on the ground with Respondent Yates on top of him. Mr. Ward told Ms. Turner to go inside and call the police. Respondent Yates let Marion Turner up as Ms. Turner Went inside the house. Mr. Turner pointed his finger at Respondent Yates, told him he had made a mistake and that he would pay for it. Mr. Turner then turned his back on Respondent Yates and began to walk away. As he did so, Respondent Yates replied "I guess you didn't get enough of it" and struck Mr. Turner again from behind. Mr. Turner then went inside and called the Indian River Sheriff's Department and reported the incident. Respondent Yates then left with his companions. A Deputy from the Indian River Sheriff's Department was summoned to the Turners' residence to take a formal report of the incident. Respondent Ortiz heard the Sheriff Dispatcher dispatch the deputy whereupon he (Ortiz) called Police Chief Siegen and inquired whether or not he should go to the Turner residence to take an incident report. Police Chief Siegen instructed Respondent Ortiz to simply serve as a backup officer by waiting in the next block away from the Turner residence. The Turners were not married at the time. They have since married.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Jack E. Yates' certificate number 02-35282 be REVOKED. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed herein against Anthony F. Ortiz be DISMISSED. DONE and ORDERED this 13th day of August, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1986.
The Issue The issues for determination are: Whether Respondent violated section 112.3135, Florida Statutes,1/ by voting on the appointment and/or advocating for the appointment of her relative to a position within her agency and/or her agency voting to appoint and/or advance her relative and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using her position to appoint her relative to the position of City of Midway Mayor Pro Tem and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using a City of Midway-owned vehicle and/or City of Midway-issued gasoline credit card for personal use and, if so, what is the appropriate penalty? Whether Respondent violated section 112.3148(8), Florida Statutes, by failing to report the gift of the personal use of the City of Midway-owned vehicle and/or the City of Midway-issued gasoline credit card and, if so, what is the appropriate penalty?
Findings Of Fact At all material times, Respondent served as a member of the Midway City Council (City Council). She was initially appointed to the City Council in 2000 and served until 2003. She was subsequently elected to the City Council in 2015 and served until May of 2019. Respondent became the Mayor of the City of Midway in May of 2017. As a member and/or mayor of the City Council, Respondent is subject to article II, section 8, Florida Constitution, and the requirements of part III, chapter 112, Florida Statutes, Code of Ethics. In January 2018, Respondent attended and received ethics training from the Florida League of Cities. That training included information on and examples of nepotism, misuse of position, and the receipt and disclosure of gifts. It also included information about the Commission issuing advisory opinions and how to contact the Commission. Nepotism Allegation The form of government the City of Midway (the City) provided under its Charter is the "Council-Manager Government,” under which all powers of the City are vested in an elected council. The City Council consists of five citizens who are residents of the City and electors eligible to vote in the City elections. From its members, the City Council elects a Mayor and Mayor Pro-Tem. The election of the Mayor and Mayor Pro-Tem occurs at the first regular council meeting after the City election. According to the Midway City Charter, the Mayor presides at all meetings of the City Council and performs other duties consistent with the office as imposed or designated by the City Council. The Mayor has a voice and vote in the proceedings of the City Council. The Mayor is referred to as Mayor-Councilmember in the execution of any legal instruments or writing or when functioning to meet other duties arising from the general laws of Florida or from the City Charter. The Mayor is recognized as the head of City government for all ceremonial purposes, for service of process, execution of contracts, deeds and other documents. The Mayor may take command of the police and govern the City by proclamation during the times of grave public danger or emergency and the Mayor has the power during such times to appoint additional temporary officers and patrolmen. The power and duties of the Mayor-Councilmember are such as they are conferred upon him/her by the Midway City Charter and no other. The Midway City Charter provides that the Mayor shall: “(a) See that all laws, provisions of this charter, and acts of the council, subject to his/her direction and supervision are faithfully executed; (b) Submit the annual budget message; (c) Summon the appropriate law enforcement officers to suppress civil disturbances and to keep law and other during times of emergency; (d) Make such other reports as the council may require concerning the operations of city departments, offices, and agencies subject to his/her direction in time of emergency; (e) Attend, preside, and vote at all council meetings; (f) Sign contracts on behalf of the city pursuant to the provisions of applicable ordinances; (g) Be recognized as the city official designated to represent the city in all agreements with other governmental entities or certifications to other governmental entities as approved by the vote of the city council; (h) Annually prepare a state of the city message, set forth the agenda for all meetings of the council, name committees of the council, make recommendations of members for city boards to the city council; (i) Perform such other duties as specified in this charter or may be required by council.” The population of the City is less than 4,000 residents. The City Council has land use and/or zoning responsibilities. In April 2016, there was a vacancy on the City Council caused by a Councilmember departing prior to the end of that Councilmember’s term. Respondent’s first cousin, Sam Stevens, wanted to be appointed to the City Council to fill the vacant seat. Prior to any action on the matter, Respondent telephoned Commission legal staff member, Grayden Schafer, Esquire, and inquired whether she would be in violation of the anti-nepotism statute if the Council appointed her first cousin to serve the unexpired remainder of a departing Councilmember's term. Following his telephone conversation with Respondent, on April 21, 2016, Attorney Schafer sent an e-mail to Respondent at rangewanda@yahoo.com, summarizing Respondent’s inquiry and the advice he provided. The last page of that e-mail (Schafer’s E-mail) states: a public official can be held in violation of the anti-nepotism provision if the appointment is made by the collegial body on which she serves, even if she did not participate in the appointment. Given the foregoing, it appears that you can be held in violation of the anti-nepotism statute not only if you directly participate or advocate for your first cousin's appointment but also if the City Council decides on its own to appoint him, regardless of whether you vote or participate. According to Respondent, she did not receive the Schafer E-mail in 2016 and did not see it until after the filing of the complaints initiating this case against Respondent. Regardless of the timing of Respondent’s receipt of Schafer’s E-mail, the evidence is persuasive that the topic was discussed between Respondent and Attorney Schafer, and that, as a result of her telephone conversation with Attorney Schafer in April 2016, Respondent understood that, because of her kinship with Sam Stevens, she could not vote to appoint or advocate to appoint Sam Stevens to the City Council. She also was aware that, even if she recused herself from voting or participating in the discussion to appoint Sam Stevens to the City Council, if the City Council voted to appoint her first cousin to the vacant seat, she would be in violation of the anti-nepotism provision. After her conversation with Attorney Schafer, in April 2016, Respondent advised the City Council of her research and that she had contacted the Commission to inquire as to whether she could vote to appoint her cousin to the City Council. She explained that she could not and would have to resign if he was appointed, even if she did not participate in the vote. Sam Stevens was not appointed to fill the vacant City Council seat in 2016. The next year, Sam Stevens was elected to the City Council during the April 2017 municipal election. He was not elected or appointed by the City Council, but rather was elected by City citizens voting in the election. The following month, at its May 4, 2017, meeting, the City Council considered the issue of electing a Mayor and Mayor Pro-Tem as provided by the City Charter. At that meeting, Councilman Colston asked if it was legal for relatives to vote for each other. The minutes of the City Council for that date indicate that “Interim City Attorney Thomas explained he had heard the rumor and did research and it is legal.” Contrary to the City Council minutes, in his deposition testimony, City Attorney Thomas denied that he gave that advice, but rather explained that he opined that Respondent and Councilman Sam Stevens could serve together on the City Council, but could not promote or advocate for one another. Despite his denial, during his interview with the Commission’s investigator, City Attorney Thomas “recalled researching the matter and advising Respondent that it was not a voting conflict for her to vote to appoint her cousin to serve as mayor pro tem." Considering the conflicting evidence, it is found that the preponderance demonstrates that the City Attorney advised that it was not a voting conflict for relatives to vote for each other for Mayor and Mayor Pro-Tem. Respondent did not reveal her 2016 conversation with Attorney Schafer to the City Council on May 4, 2017, nor did she provide a copy of Schafer’s E-mail dated April 21, 2016, to either the City Council or the City Attorney prior to the City Council’s votes for Mayor and Mayor Pro-Tem. However, at the May 4, 2017, City Council meeting, a citizen confronted Respondent with a copy of Schafer’s E-mail, reading portions of Schafer’s E-mail aloud. Respondent testified that she did not acknowledge an ethical dilemma regarding Attorney Schafer’s opinion because she believed it addressed appointment as opposed to election, and her cousin had been elected a year later, not appointed. Schafer’s E-mail does not address the situation in which both Respondent and her first cousin are elected members of the City Council and whether Respondent can vote to elect him as the Mayor Pro-Tem in that context. At that meeting, Respondent nominated herself to serve as Mayor. Her nomination was seconded by Councilman Smith. Respondent was elected as Mayor when the City Council voted three to two for Respondent to serve as Mayor with Councilman Smith, Councilman Sam Stevens, and Respondent voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” Respondent, as the Mayor, received an $800 stipend, which is $100 more than the other councilmembers. At that same May 4, 2016, meeting, Councilman Colston nominated Councilwoman Francis to serve as Mayor Pro-Tem. That nomination failed two to three, with Respondent, Councilman Smith, and Councilman Stevens voting “no.” Councilman Smith then nominated Councilman Stevens to serve as Mayor Pro-Tem. The City Council voted three to two for Councilman Stevens to serve as Mayor Pro-Tem with Respondent, Councilman Stevens, and Councilman Smith voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” According to the City Charter, the Mayor Pro-Tem: “shall preside over the meetings of the council during the absence of the mayor- councilmember, and in general in the absence or the incapacity of the mayor- councilmember, he/she shall do [sic] perform those acts and things provided in this Chapter to be done by the mayor- councilmember. Nothing contained herein shall be construed as to preclude the member succeeding himself or herself as Mayor- Council member.” The City provides no additional compensation for a Councilmember serving as Mayor Pro-Tem. Vehicle Use and Gift Disclosure The City has two vehicles. One is a white Ford Taurus that has air conditioning (Vehicle). The other is a white Ford Taurus with a red stripe that does not have air conditioning. Respondent was given a 2002 MPV Mazda Van by her daughter, Temika Smith, on Mother’s Day in 2016. While serving as Mayor, Respondent had use of the Vehicle for personal use. Respondent began using the Vehicle in September or October 2017 following a hurricane and had access to the Vehicle until she stopped using it in May of 2019. During this time, the Vehicle was generally parked on property adjacent to Respondent’s residence. While Respondent had a set of keys to the Vehicle, there was another set of keys at the City Hall. In addition to Respondent’s access, other city employees or city council members could use the Vehicle. Former City Manager Steele used the Vehicle on occasion during the time that Respondent had access to the Vehicle. When former City Manager Steele wanted to use the Vehicle, she would pick it up from Respondent’s residence and return it to City Hall. Respondent used the Vehicle for a variety of City- related purposes. She used it to travel to Florida League of Cities’ conferences. In addition, she used the Vehicle to attend events in Midway, in Gadsden County, and in Tallahassee, including meetings with the City’s lobbyist and members of the Florida Legislature, as part of her duties and responsibilities as Mayor. Respondent was also observed driving the Vehicle to meetings at the City Hall. Respondent’s personal use of the Vehicle included, but was not limited to, traveling roundtrip between Midway and Tallahassee. She may have had her daughter in the Vehicle on two or three occasions, and on occasion, drove the Vehicle to her daughter’s house in Tallahassee. On one of the occasions when Respondent drove the Vehicle to her daughter’s house in Tallahassee, which occurred on March 15, 2018, Respondent had a run-in with a Midway resident who had followed Respondent to her daughter’s house. The Midway Resident took pictures of the Vehicle at Respondent’s daughter’s house and also the Mazda MPV van, which was without a license plate. On that occasion, Respondent had gone to check on the house because her daughter was out of town. At the final hearing, Respondent admitted that there was a time when the Mazda MPV was in the shop a lot, and, since she had access to the Vehicle, she turned in the Mazda’s tag to save on insurance payments. On another occasion in 2018, Respondent was stopped by a Gadsden County Deputy Sheriff in Midway after midnight for having a tag light out and the incorrect tag on the Vehicle. Respondent had been returning from Tallahassee. No citation was issued with respect to that stop. Other examples presented at the hearing illustrating Respondent’s use of the Vehicle included her transporting a child from Midway to Florida High in Tallahassee, taking a Midway resident from Midway to Tallahassee to drop him at his place of employment, and taking an individual to Liberty County to retrieve that person’s vehicle left when evacuating because of a hurricane. While providing such accommodations is not listed within Respondent’s responsibilities as Mayor or Councilmember, arguably, they served a public purpose. While Respondent had access and use of the Vehicle, the City did not have a vehicle-use policy. The evidence indicates that former City manager Ford also used a City-owned vehicle for personal use. Former City Manager Steele could not recall if any other city employees or city council members had used the Vehicle. Respondent testified that employees of the City’s public works department might also have used the Vehicle. City Councilman Ron Colston testified that he never used the Vehicle. At the May 3, 2018, Midway City Council meeting, Councilman Colston publicly requested that Respondent stop driving the Vehicle, stating that citizens had approached him with concerns about Respondent driving the Vehicle. Minutes of that City Council meeting indicate that Councilman Coston commented that he had received some calls from citizens concerned with Respondent driving the City-owned vehicle and suggested that she should park the Vehicle because of the number of complaints and that it is a liability. In response to that comment, City Attorney Thomas suggested that the City Council come up with some policy and procedures on the use of City vehicles. Respondent did not stop driving the Vehicle at the time of Councilman Colston’s request. By the end of October 2018, the Vehicle needed a tune-up and to have its brakes checked. In October 2018, Respondent started using a rental car when she got a job with the Federal Emergency Management Agency (FEMA) for debris monitoring. Respondent was not reimbursed by FEMA for the rental. In January 2019, Respondent purchased a new vehicle, a 2019 Mitsubishi G4 Mirage. At the time of the final hearing in this case, the City was in the process of developing a policy regarding the use of City vehicles and City Fuel Cards. Respondent did not report the use of the vehicle on her income taxes and did not file a gift disclosure to report her personal use of the City-owned vehicle as a gift. Fuel Card Use and Gift Disclosure Respondent used a City-issued Pilot Travel Center credit card for gasoline for the Vehicle. City-issued Pilot Travel Center credit card #007 (City Fuel Card) was assigned to the Vehicle. The City Fuel Card was the only one numbered #007 and it remained in the Vehicle. While some of the fuel purchases charged to the City Fuel Card were related to City business, Respondent acknowledged that fuel was also purchased using the City Fuel Card during her personal use of the Vehicle. Records of City Fuel Card #007 from November of 2017 through December of 2018 show the following charges: November 2017: -November 1, 2017– 623 Quincy FL- $33.67 -November 5, 2017- 425 Midway FL- $20.71 -November 5, 2017- 4556 Wildwood FL- $20.00 -November 8, 2017- 4556 Wildwood FL- $18.30 -November 9, 2017- 623 Quincy FL- $24.72 -November 13, 2017- 623 Quincy FL- $21.77 -November 13, 2017- 623 Quincy FL- $35.42 -November 20, 2017- 623 Quincy FL- $42.68 -November 20, 2017- 623 Quincy FL- $30.78 -November 27, 2017- 623 Quincy FL- $32.00 Respondent traveled on City business to and from Orlando, Florida, from November 5 through November 8, 2017. As to the multiple charges on November 13, 2017, and November 20, 2017, Respondent explained that she traveled on City business because “we were giving out turkeys during that time.” December 2017: -December 2, 2017– 623 Quincy FL- $30.91 -December 12, 2017– 623 Quincy FL- $34.06 -December 15, 2017– 425 Midway FL- $30.27 -December 22, 2017– 425 Midway FL- $27.03 January 2018: -January 9, 2018– 425 Midway FL- $33.82 -January 17, 2018– 425 Midway FL- $22.03 -January 18, 2018- 4556 Wildwood FL- $18.00 -January 21, 2018- 4556 Wildwood FL- $8.20 -January 22, 2018- 425 Midway FL- $15.50 -January 23, 2018- 425 Midway FL- $8.57 -January 24, 2018- 425 Midway FL- $10.01 -January 26, 2018- 425 Midway FL- $24.00 Respondent traveled on City business to and from Orlando, Florida, during the period from January 18 through 22, 2018. February 2018: -February 2, 2018– 425 Midway FL- $34.26 -February 15, 2018– 425 Midway FL- $32.00 -February 22, 2018– 425 Midway FL- $30.01 March 2018: -March 14, 2018- 425 Midway FL - $31.00 -March 28, 2018– 425 Midway FL - $32.07 April 2018: -April 7, 2018– 425 Midway FL - $25.00 -April 17, 2018– 425 Midway FL - $35.44 -April 28, 2018– 425 Midway FL - $7.52 66. May 2018: -May 14, 2018– 425 Midway FL - $37.01 -May 20, 2018– 425 Midway FL - $29.02 -May 26, 2018– 425 Midway FL - $41.00 67. June 2018: -June 1, 2018– 4556 Wildwood FL- $25.03 -June 2, 2018– 4556 Wildwood FL- $18.02 -June 4, 2018– 425 Midway FL- $20.00 -June 9, 2018– 425 Midway FL- $31.00 -June 15, 2018– 425 Midway FL- $28.04 -June 29, 2018– 425 Midway FL- $33.00 Respondent traveled on City business to and from Orlando, Florida during the period from May 31, 2018, through June 2, 2018. 68. July 2018: -July 18, 2018- 425 Midway FL- $35.06 August 2018: -August 3, 2018– 425 Midway FL- $21.08 -August 14, 2018- 622 St. Lucie FL- $20.01 -August 14, 2018- 091 Jacksonville- $24.00 -August 19, 2018- 624 Dade City FL- $27.02 -August 20, 2018- 425 Midway FL- $19.33 -August 24, 2018- 425 Midway FL- $33.01 Respondent traveled on City business to and from Hollywood, Florida during the period from August 14 through 18, 2018. September 2018: -September 4, 2018– 425 Midway FL- $37.00 -September 13, 2018– 425 Midway FL- $35.50 -September 29, 2018– 425 Midway FL- $36.01 October 2018: -October 10, 2018– 623 Quincy FL- $39.07 November 2018: -November 21, 2018– 623 Quincy FL- $33.07 December 2018: -December 5, 2018– 623 Quincy FL- $18.80 In addition to the fact that some of Respondent’s use of the City Fuel Card to put fuel in the Vehicle included her personal use of the Vehicle, Respondent used the City Fuel Card to purchase gasoline for the Vehicle when she was using the Vehicle for travel on City business, including travel to Florida League of Cities’ conferences in November of 2017, as well as while traveling on City business in and around Midway and Gadsden County, and to and from Tallahassee. Respondent also used the City Fuel Card to pay for gasoline while traveling on City business to attend Florida League of Cities’ conferences in a rental vehicle. These conferences occurred January 18 through 22, 2018; May 31 through June 2, 2018; and August 14 through 18, 2018. There was no evidence presented that Respondent used the City Fuel Card to purchase anything other than fuel for the Vehicle or fuel for a rental car while on business for the City. As the City Fuel Card was kept in the Vehicle, other City Council members or City employees would have had access to the City Fuel Card when they were driving the Vehicle. Respondent did not file a gift disclosure to report her use of the City Fuel Card to put gasoline in the Vehicle on those occasions when she used the Vehicle for personal use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Wanda Range, violated section 112.3135, Florida Statutes, and recommending the imposition of a nominal civil penalty of $1.00 for that violation, and further finding that Respondent Wanda Range did not violate sections 112.313(6), or 112.3148(8), Florida Statutes, as alleged in the Order Finding Probable Cause. DONE AND ENTERED this 8th day of November, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 8th day of November, 2019.
The Issue Whether Respondent, the holder of a Class "D" Security Officer License and a Class "G" Firearm License, committed the misconduct alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the holder of Class "D" Security Officer License D92-01223 and Class "G" Statewide Firearms License G96-01346. At the times pertinent to this proceeding, Respondent was employed as an armed security guard for Wells Fargo Security in Palm Beach County, Florida. His assigned post was at the Community Savings Bank (the Bank) in Riviera Beach, Florida. There was typically only one guard assigned to that post. The Bank is located in a high crime area of Riviera Beach. Respondent was the only guard assigned to the Bank on June 5, 1996. Respondent was on duty at the Bank from 7:00 a.m. to 7:00 p.m., five days a week. He was to provide security for all five floors of the main bank building, an adjacent single story building that contained supplies, and the parking areas. His duties included escorting Bank personnel and customers between the parking areas and the Bank, and he was required to carry a radio so that Bank personnel could contact him when someone needed an escort. The radio he carried had a radius of 1.5 miles. At the times pertinent to this proceeding, Michael Ross was employed by Wells Fargo and had direct supervisory authority over the Respondent. Mr. Ross instructed Respondent that he could leave the Bank premises only to pick up a sandwich. He was instructed to take his breaks and eat his lunch on Bank premises. On June 5, 1996, Respondent was on duty at the Bank. At approximately 11:00 a.m. that day, Mr. Ross spoke with Sheila Owens, the bank's operation manager, in an effort to locate the Respondent. Mr. Ross wanted to discuss with the Respondent certain changes in the work schedule. Ms. Owens advised Mr. Ross that she would attempt to locate Respondent and that she would call him back. A few minutes later, Ms. Owens called Mr. Ross and told him that she could not locate Respondent. Mr. Ross became concerned that the post was unattended. Because the Bank is in a high crime area, he was also concerned that the Respondent may have become the victim of an act of violence. Mr. Ross drove to the Bank, arriving at approximately 12:30 p.m. on June 5, 1996. He and Ms. Owens searched the entire Bank premises. Mr. Ross attempted to contact Respondent by radio and by Respondent's personal beeper number. The page Mr. Ross left for Respondent was not returned. Mr. Ross tried to locate the Respondent for approximately two hours. He called the Riviera Police Department because he feared for Respondent's safety. Two Riviera Police Department cars arrived at the scene at approximately 2:30 p.m. on June 5, 1996. About the time the police arrived, Mr. Ross saw Respondent walking through the Bank's parking lot. Respondent told Mr. Ross that he had been at a beeper store that was approximately 200 yards from the Bank. That explanation is not credible because Respondent could have been contacted by radio if he had been within a mile and a half of the Bank. Respondent was absent from his post without credible explanation for at least two hours on June 5, 1996. Wells Fargo thereafter lost the security contract it had with the Bank.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class “D” Security License be revoked. It is further recommended that no action be taken against Respondent's Class "G" Statewide Firearm License. DONE AND ENTERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of October, 1997 COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Mr. James B. Brown 1031 West 1st Street Riviera Beach, Florida 33404 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Background During 1994, the Respondent, Craig Reeves, was working for the City as a Tradesworker in Infrastructure. While technically not in a supervisory position, as Tradesworker the Respondent functioned as a job foreman or lead man on his crew. He received jobs from his immediate supervisor, and it was the Respondent's job to mobilize his crew, assign tasks and get the jobs done. Having a background in private construction work, the Respondent brought to the job a private construction work philosophy. Essentially, he thought the workers on his crew (or any other crew) should do their jobs, and do them right, and told them so in blunt terms. While such an attitude apparently is both effective and practical in private construction work, it apparently is too harsh an attitude to be practical for use on all of the Respondent's crew (or perhaps any City work crew.) In addition, working for the City, the Respondent was unable to use (or at least carry through with) the threat that is always available in the private sector to simply fire on the spot any employee who did not meet the foreman's standards. ("Do it my way and do it right, or go find another job.") Some of the men could handle, and respond to, what amounted to the Respondent's bullying; others could not. While the Respondent was able to get all of his jobs done timely and well using his approach, he hurt the feelings of some members of his crew. Anger and resentment built up among them. Although the Respondent received high marks (exceeds standards) in most areas of his performance evaluations, for at least the three years beginning August 26, 1991, the Respondent consistently received admonishments and only satisfactory in the area of his treatment of the men working under him. The Respondent generally accepted these criticisms and agreed to try to improve in that area. However, the City also certified in the evaluations that the Respondent already was receiving all "requisite annual training," and no real improvement over the years was evident. The Charges and Investigation One Friday in June, 1994, one member of the Respondent's crew, named Ed Stiers, was found crying to himself on the job. He told the Respondent's supervisor that he could not take working under the Respondent any longer and that he wanted a demotion to get off the Respondent's crew. Just barely coherent, Stiers said something to the effect that he was sexually harassed on the job eight to nine years before and that he was afraid it was starting to happen to him again. He accused the Respondent and another man on the Respondent's crew, named Phil Manson, of sexual harassment, physical and verbal abuse and general mistreatment on the job. The following week, the Respondent's supervisors referred Stiers to the City's Human Relations Director, Eleanor Breland, to investigate the charges. Breland's investigation consisted of interviews with Stiers, the Respondent, and everyone else who was in a position to have knowledge about the charges. To assist her in her investigation, Breland tape-recorded the interviews. At times, she stopped the recording and inadvertently forgot to restart it. Also, an assistant later erroneously reused one of the tapes, erasing part of an interview. Having been told incorrectly that statements prepared from the interviews were verbatim transcripts, the Respondent became suspicious when he discovered that they were not and that one of the tapes had been erased. But it is found that there was no intentional destruction of evidence favorable to the Respondent or cover-up or any other kind of foul play involved. Name-Calling and Personal Insults It is found that the Respondent probably did call certain City employees working under him names like "stupid" and "ignorant." He also described some of the things they did on the job as being "stupid" or "ignorant" if they made mistakes on the job, or did jobs in ways that were (at least in the Respondent's mind) incorrect or inefficient or ineffective, and it was in those contexts that the Respondent might have called the workers "stupid" or "ignorant" or words to that effect. Once as Stiers and a co-worker approached a job site where the Respondent was working, the Respondent began to repeat the phrase "Stiers and queers" in a "sing-song" manner. Stiers took the Respondent to be calling him a "queer," but it was not clear from the evidence what the Respondent intended. At worst, it was proven that the Respondent's behavior was nonsensical and childish joking around on the job. While maybe not appropriate or desirable behavior on the Respondent's part, it was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. It is found that the Respondent has told City employees working under him that they "are not paid to think." This comment could be considered a personal insult directed to the employees' intelligence. However, it appears that the context of such a comment would have been an occasion when a worker under him contradicted the Respondent, saying "but I thought" or "but I think." In using the comment, the Respondent was repeating an expression he heard his immediate supervisor use. In September, 1994, in response to criticism of his use of the expression during a group meeting, the Respondent pointed out his supervisor's use of the very same expression and said that, if his supervisor agreed, he would also stop using it. There is no evidence that the Respondent continued to use the expression after the September, 1994, meeting. The Safety Sunglasses Ed Stiers insisted on wearing safety sunglasses that were so old, scratched up and dirty that he barely could see out of them. Apparently at least in part because he could not see clearly through the glasses, Stiers made mistakes on the job, such as steering wheelbarrows over form boards and into co- workers. The Respondent repeatedly admonished Stiers to get new glasses so that he could see better. Sometimes, Stiers responded to the effect that he did not want to be able to see any better. It was proven that at least once, out of anger and frustration with Stier's obstinacy, the Respondent snatched Stiers's old glasses off his face and threw them away. He got new glasses for Stiers to use instead and gave them to Stiers to put on. Cleaning the Trucks Most of the time, at the end of the work day, the Respondent assigned two men to clean out each of the City trucks used during the day. On occasion, the Respondent assigned Stiers, or another, to clean a truck alone. It was not proven that Stiers or the others were singled out to do this chore by themselves in retaliation or as a form of mistreatment or to "bust their chops." Most of the time, it was just a matter of assigning tasks in the most efficient manner. For example, Stiers was not good at finishing curbs, so the Respondent sometimes would have Stiers clean out a truck while another worker helped finish curbs. Butt-Poking and Bananas It was proven that the Respondent poked Stiers in the posterior with a rake handle while Stiers was bent over and reaching down into a hole in the ground. The Respondent's purpose was to redirect Stiers's attention to the part of the hole in which Stiers was supposed to be working. It was not proven that there was anything sexual about what the Respondent did or how he did it. One day at work, Manson noticed that Stiers seemed to be staring at a banana he was holding. Comparing the banana to a male sexual body part, Manson "joked" about Stiers wanting to eat the banana. Others, including the Respondent, also persisted in teasing Stiers about "eating bananas." While maybe not appropriate or desirable behavior on the Respondent's part, it also was clear that all the men on the Respondent's and other City crews joke around in a similar fashion from time to time on the job. At different times, all of them--including not only the Respondent, but Stiers as well--went "overboard" in the joking and teasing. Racial Slurs It was proven that the Respondent used racial slurs by referring to a fellow employee as a "bush nigger" and by describing a new hire (Manson) as "a white guy, not a nigger." However, it was not proven that the Respondent used these terms in the presence of African-Americans. Request for Training On or about August 11, 1994, the Respondent registered for City Human Services training in proper techniques in supervising those working under him. The training class was entitled "Basics of Supervision." He requested the class scheduled for September 20, 1994, but for reasons not made clear from the evidence, he did not attend the class until February 24, 1995, after action already had been taken to demote and suspend him. Selective Discipline The evidence disclosed that several other City employees--including many of the Respondent's accusers--were guilty of some of the same misconduct with which the City has charged the Respondent in this proceeding. The evidence did not disclose that disciplinary action has been taken against any of them except the Respondent and Manson, the two targets of Stiers's complaints. (Manson received a reprimand.) Apparently, since only the Respondent and Manson were named in Stiers's complaints, Breland's investigative report on the complaints only recommended that action be taken against them. Breland testified that she assumed that the appropriate supervisors and personnel officers would take appropriate action against others whose misconduct might be revealed in the body of her investigative report, but it is not clear from the evidence whether her assumption was correct. Disciplinary Guidelines The City of Clearwater has adopted Guidelines for Disciplinary Action, which provide in pertinent part: [The Guidelines] are structured to provide for equality of treatment in discipline. However, in recognition of the fact that the circumstances of each infraction or occurrence may differ in many respects from the circumstances in other somewhat similar situations, the City retains the right to treat each occurrence on an individual basis and without creating precedent for other cases which may arise in the future or mitigating previous discipline. The City took the position in this case that the Respondent's alleged actions were governed by the following Guidelines for Disciplinary Action: Level 3, #14 - Threatening, intimidating, coercing or interfering with fellow employees, supervisors or citizens at any time while on duty, reporting for duty or leaving duty an on City premises, including the use of abusive or profane language. (20 points) Level 4, #8 - Abuse, misuse, destruction or loss of any City property, including records, tools, supplies, equipment and radio network. (40 points) Level 4, #16 - Making or publishing false, vicious or malicious statement(s) concerning an employee or a supervisor where such false statement(s) are damaging to the individual's reputation. (40 points) Level 5, #13 - Immoral, unlawful or improper conduct on or off the job which is contrary to honesty, modesty or decency and which tends to affect the reputation and citizen's good will toward the City, whether or not such act is a criminal offense. (60 points) Level 5 offenses under the Guidelines justify 60 discipline points and discharge or a ten- to 20-day suspension on the first occurrence. (The Guidelines provide that "any employee who is assessed disciplinary action totalling the equivalent of 60 points within any 24-consecutive month period is subject to dismissal.") In the Guidelines, Level 5, #13, is described as a violation of paragraph (j) of Rule 14, Section 1. Level 4 offenses under the Guidelines justify: 40 discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the first occurrence; and 40 more discipline points (for a total of 80 cumulative points) and discharge or a seven- to 15-day suspension on the second occurrence. The Guidelines describe Level 4, #8, as a violation of paragraph (e) of Rule 14, Section 1; they describe Level 4, #16, as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 3 offenses under the Guidelines justify: 20 discipline points and a one- to four-day suspension on the first occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the second occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the third occurrence. In the Guidelines, Level 3, #14, is described as a violation of either paragraph (e) or (k) of Rule 14, Section 1. Level 2 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 20 discipline points and a one- to four-day suspension on the second occurrence; 20 more discipline points (for a total of 40 cumulative points) and a three- to seven-day suspension on the third occurrence; and 20 more discipline points (for a total of 60 cumulative points) and discharge or a seven- to 15-day suspension on the fourth occurrence. Level 1 offenses under the Guidelines justify: a letter of reprimand on the first occurrence; 15 points and a one- to three-day suspension on the second occurrence; 15 more points (for a total of 30 cumulative points) and a three- to five-day suspension on the third occurrence; 15 more points (for a total of 45 cumulative points) and a five- to seven-day suspension on the fourth occurrence; and 15 more points (for a total of 60 cumulative points) and a discharge or a seven- to 15-day suspension on the fifth occurrence. Under the Guidelines, Level 2 offenses include (among others that are not pertinent): 2. Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . .. The Guidelines describe this as a Rule 14(1)(e) violation. Under the Guidelines, Level 1 offenses include (among others that are not pertinent): 6. Engaging in horseplay, scuffling, malicious mischief, throwing things, distracting the attention of others, catcalls or similar types of disorderly conduct. The Guidelines describe this as a Rule 14(1)(k) violation. Although not clear from the evidence, it appears that the references in the Guidelines to paragraph (e) of Section 1 of Rule 14 are incorrect and that the correct references should have be to paragraph (f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order: (1) demoting the Respondent to Public Works Service Worker II; (2) assessing 20 discipline points against him; and (3) suspending him without pay for four days. RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0546 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted. As to the Disciplinary Guidelines, incorporated; otherwise, subordinate and unnecessary. 2.-3. Accepted and incorporated. 4. Rejected as not proven that he was "warned." Otherwise, accepted and incorporated. (The "group counseling" apparently had to do with telling the employees that they were "not paid to think." 5.-6. In part accepted and incorporated; in part rejected as not proven. Accepted but subordinate and unnecessary. Accepted but not within the charges. Rejected as not proven and as contrary to the evidence. (He was asking questions, not testifying or making admissions.) As to crying on the jobsite, accepted and incorporated; as to crying at the hearing, accepted but subordinate and unnecessary. 11.-13. Rejected as not proven and as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and as contrary to the greater weight of the evidence that it was his "only attempt." Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Respondent's Proposed Findings of Fact. (The Respondent submitted a letter with eight unnumbered paragraphs. For purposes of these rulings, the unnumbered paragraphs have been assigned consecutive numbers.) Accepted but subordinate and unnecessary. Accepted and incorporated as to the destruction of tapes. Conclusion of law as to the Respondent's rights. 3.-4. Accepted and incorporated. 5.-8. Argument, subordinate and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 Mr. Craig Reeves 1501 Fredrica Avenue Clearwater, Florida 34616 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
