The Issue Whether Petitioner was wrongfully dismissed from his employment with the City of Clearwater.
Findings Of Fact On December 5, 1990, Truman Gooden was employed by the City of Clearwater as a truck driver and was assigned to pick up trash at Sand Key in Pinellas County. While driving the truck assigned to him on the beach below the high water line, the truck started to slide in loose sand, Gooden attempted to back and turn the truck away from the water, but was unsuccessful, and the truck slid into the water with the engine running. By the time Gooden extricated himself from the vehicle, the entire hood was under water (Exhibit X), the cab was full of water, and the engine was ruined. The total damage to the truck was approximately $22,000. Gooden reported the incident to his superior, and the vehicle was subsequently removed from the water by two tow trucks. Gooden testified that he had driven the truck in the same manner for several years performing the same tasks and had never encountered such a problem before. The tide was extremely low on December 5, 1990, and Gooden was driving the truck on the sand further seaward from the high water mark than normal. To perform the task, it was unnecessary for Gooden to drive very far seaward of the high water line, and Gooden's negligence in this regard was the proximate cause of the truck sliding into the water and becoming ruined. For this negligence, Gooden was assigned 20 disciplinary points. During the preceding two years prior to this incident, Gooden had received the following disciplinary actions for the following offenses: March 10, 1989 - counseling session: quitting work, wasting time March 23, 1989 - written warning: tardiness March 28, 1989 - 3 days suspension: unauthorized/ unexplained absenteeism April 4, 1989 - letter of reprimand: carelessness, vehicle accident June 20, 1989 - 4 days suspension: productivity not up to standards June 22, 1989 - less than satisfactory annual performance rating June 27, 1989 - letter notifying Gooden of accumulation of 60 points July 14, 1989 - letter of reprimand: vehicle accident Sept. 22, 1989 - less than satisfactory 3 month follow-up rating Nov. 13, 1989 - 6 days suspension: operating city vehicle without a license; failure to report lack of valid license April 16, 1990 - written warning: tardiness June 22, 1990 - less than satisfactory annual performance rating Aug. 10, 1990 - letter of reprimand: lack of personal hygiene Dec. 5, 1990 - current incident/recommendation for dismissal 10. At the time of the December 5, 1990 incident, Gooden had accumulated 60 disciplinary points and was given 20 disciplinary points for this incident. By letter dated January 27, 1989, Gooden was advised that he had accumulated 60 points since September 23, 1988, and any further disciplinary action within a 2-year time frame may be grounds for dismissal.
Recommendation It is recommended that a Final Order be entered sustaining the action of the City Manager in dismissing Truman Gooden from his position as truck driver for the City of Clearwater. ENTERED this 3rd day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1991. COPIES FURNISHED TO: TRUMAN GOODEN 1144 ENGMAN STREET CLEARWATER, FL 33615 CYNDI GOUDEAU, CLERK CITY OF CLEARWATER POST OFFICE BOX 4748 CLEARWATER, FL 34618-4748 MILES A. LANCE, ESQUIRE POST OFFICE BOX 4748 CLEARWATER, FL 34618-4748
Findings Of Fact Petitioner and DER have stipulated to the following facts: Petitioner is the owner and developer of real property in Franklin County, Florida. 2. DER has adopted Rules 17-4.28(2), 17-4.28(8)(a) and 17-4.242(1)(a)2, Florida Administrative Code, which: require a permit for dredge and fill activities under Chapter 403, Florida Statutes; prohibit permitting of dredge and fill activities in Class II waters approved for shellfish harvesting by the Department of Health and Rehabilitative Services (now the Department of Natural Resources); and require an affirmative public interest showing of an applicant for a license to construct a stationary installation in "Outstanding Florida Waters." These rules substantially affect Petitioner for the following reasons: Petitioner applied to DER for a development permit to dredge a navigation channel from his private canal into Alligator Harbor in Franklin County. The navigation channel was proposed to be 40 feet wide and 400 feet long, and was to be dredged to a depth of minus four (-4) feet mean low water, which would entail removing approximately 3,890 cubic yards of material. On May 28, 1980, DER issued an intent to deny the requested permit in file No. 19- 28442-1E. On June 11, 1980, Petitioner filed a petition for administrative hearing on DER's intent to deny his permit application. On June 12, 1980, DER informed Petitioner it would take no action on its Intent to Deny letter of May 28, 1980, for 60 days and allow Petitioner to submit additional information on the merits of his permit application during that period. DER took no further action regarding the Intent to Deny or Petitioner's permit application, and, after Petitioner's request, on March 5, 1981, DER forwarded the petition for administrative hearing filed with it on June 11, 1980, to the Division of Administrative Hearings. DER's Intent to Deny Petitioner's permit application stated DER had permitting jurisdiction under Chapter 403, Florida Statutes, and under Rule 17-4.28(2), Florida Administrative Code, because the proposed dredging would be in waters of the state within the definition contained in Rule 17-4.28(2), Florida Administrative Code. DER's Intent to Deny Petitioner's application asserted that Petitioner's proposed project was located in Class II waters approved for shellfish harvesting and that dredging in such areas was prohibited by Rule 17- 4.28(8)(a), Florida Administrative Code. DER's Intent to Deny Petitioner's application stated that Petitioner had not "affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest pursuant to Section 17-4.242(2). . . . The parties have agreed that the reference in the aforementioned quote should have been to Section 17-4.242(1)(a)2. Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
The Issue The issues are whether Petitioner should terminate Respondent from his employment as a deputy sheriff for allegedly engaging in prohibited conduct pursuant to Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Section 6, Subsection 4, Laws of Florida (the Civil Service Act), and Petitioner's General Order Section 3-1.1, Rule and Regulation 5.2--relating to loyalty, Rule and Regulation 5.4--relating to duties and responsibilities, and Rule and Regulation 5.6-- relating to truthfulness; General Order Section 3-1.3, Rule and Regulation 3.20--relating to reporting procedures for the use of force; and General Order 3-2--relating to ethical requirements.
Findings Of Fact Petitioner is the Sheriff of Pinellas County and a constitutional officer described in Article VIII, Section 1, Florida Constitution. From sometime in 1989 until the termination of Respondent’s employment on March 14, 2008, Petitioner employed Respondent as a deputy sheriff in the Pinellas County Sheriff’s Office (the PCSO). Respondent was last assigned to the courthouse security division of the PCSO. On Saturday, November 3, 2007, Respondent was off-duty and volunteering as one of a number of parents who were supervising several high school bands that were practicing at Clearwater High School (CHS). Three juvenile males on bicycles approached the band practice area. Respondent yelled at them to stop, but did not identify himself as a deputy sheriff. One juvenile stopped. The other two juveniles ignored the commands and proceeded toward the Tarpon Springs Band. One of the riders wore a back pack with a baseball bat attached to the pack. Respondent reasonably believed that the juveniles, who were approximately 16 and 17 years old,1 presented an imminent danger of running into and potentially injuring members of the nearby Tarpon Springs Band. Respondent ran after the juvenile with a bat attached to his pack, grabbed the bat, and separated the juvenile from the moving bicycle. The second juvenile stopped at the point of separation. The juvenile with the baseball bat struck Respondent with his fist, and Respondent delivered a knee-spike2 to the mid- section of the juvenile. The knee-spike disabled the juvenile. The second juvenile was preparing to strike Respondent, when another parent pulled that juvenile away. Petitioner notified Respondent of the charges against him in a memorandum dated March 14, 2008 (the charging document). In relevant part, the charging document alleges in a paragraph entitled “Synopsis” that, during the altercation, Respondent failed to act within the scope of his responsibilities as a deputy sheriff. If that allegation were properly construed to allege that Respondent used excessive force, the fact-finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of that charge of misconduct. Respondent acted reasonably during the altercation. Respondent used reasonable force to protect band members from harm, and Respondent used reasonable force to defend himself from a juvenile. The exigencies of the moment did not afford time for Respondent to disclose his employment with the PCSO before taking action he reasonably believed to be necessary to protect members of the Tarpon Springs Band. Respondent cooperated with the police investigation at CHS. CHS is located within the jurisdiction of both the PCSO and the Clearwater Police Department. The Clearwater Police Department responded to the scene and conducted an investigation. The investigation was documented in Clearwater Police Report No. CW07-33468 (the police report). Another allegation in the synopsis of the charging document is that Respondent was untruthful by deliberately or intentionally omitting or misrepresenting material facts outlining his involvement in the altercation, including a memorandum Petitioner authored on November 5, 2007. The fact- finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of this charge of misconduct. It is undisputed that Respondent telephoned Corporal Victor Griffin, Respondent’s immediate supervisor on the evening of November 3, 2007, and reported the altercation in detail, including the attack by the juvenile and Respondent’s use of a knee-spike. Corporal Griffin instructed Respondent to inform Sergeant Edward Marshall, the next in command. Respondent telephoned Sergeant Marshall that night and informed him of the use of force and the details of the incident. At the hearing, Sergeant Marshall had little or no recall of the details of the conversation with Respondent on November 3, 2007. The only credible and persuasive testimony concerning that conversation is the testimony of Respondent. On the evening of November 3, 2007, Sergeant Marshall instructed Respondent to write a memorandum describing the incident and Respondent’s use of force when Respondent returned to work on Monday, November 5, 2007. Sergeant Marshall instructed Respondent to either reference the police report in the memorandum or attach a copy of the police report to the memorandum. Respondent drafted a memorandum on November 5, 2007. The memorandum referred to the police report, and Respondent submitted the memorandum to his supervisor. The police report included a handwritten, detailed description by Respondent of the use of force in the altercation. Petitioner had reasonable access to the police report. The Clearwater Police Department and the PCSO, by agreement, utilize a computerized joint records management system identified in the record as ACISS. Another allegation in the synopsis of the charging document is that Respondent failed to document the use of force, as required by agency policy. The fact-finder finds that a preponderance of the evidence does not support a finding that Respondent is guilty of this charge of misconduct. A complete description of the altercation and use of force was attached to the police report. That information fully documented the use of force and was available to Petitioner through ACISS.3 Another allegation in the synopsis of the charging document is that Respondent compromised the criminal investigation of the altercation by “accessing unauthorized information” and by “interfering with an ongoing investigation.” This allegation is based in substantial part on two undisputed facts that occurred on or about November 5, 2007. First, Respondent obtained a copy of the police report and discovered that the police report listed Respondent as a “victim/suspect.” Suspects are not entitled to a copy of a police report, but law enforcement officers may access the report. Second, Respondent persuaded the property department to change the status of brass knuckles found in a back pack at the scene of the altercation from being held for destruction to being held as evidence, so that the brass knuckles would not be destroyed. The fact-finder finds that a preponderance of the evidence does not support a finding that the undisputed actions of Respondent compromised the criminal investigation by accessing unauthorized information and intervening into an investigation in which Respondent was listed in the police report as a suspect. The undisputed actions of Respondent were consistent with the actions of the Clearwater Police Department, and neither action by Respondent compromised the investigation. The investigating officer for the Clearwater Police Department was off-duty on Monday and Tuesday, and she did not return to work until Wednesday, November 7, 2007. When the investigating officer returned to work, her sergeant instructed her to change the police report to list Respondent as a law enforcement officer, to delete his address from the report, and to change the designation of Respondent from a “victim/suspect”4 to a “victim” before finalizing the report. The investigating officer made those changes to the police report by computer entries on November 7, 2007, and those changes were available to the PCSO through ACISS. The sergeant also instructed the investigating officer to change the status of the brass knuckles from being held for destruction to being held as evidence, so that they would not be destroyed. The investigating officer contacted the property department of the PCSO to change the status of the brass knuckles to that of evidence and discovered the property department had already made that change at Respondent’s request. Respondent was entitled to a copy of the report because he was a law enforcement officer and was incorrectly listed on the report as a suspect. The actions of Respondent in changing the status of the brass knuckles so that they were listed as evidence was consistent with the actions of the Clearwater Police Department. Respondent did nothing on November 5, 2007, that the Clearwater Police Department did not do on November 7, 2007. If the investigating officer were to have returned to work on Monday, November 5, 2007, it is reasonable to conclude that the Clearwater Police Department would have provided a copy of the police report to Respondent, because Respondent would not have been listed as a suspect, and the Department would have changed the status of the brass knuckles so that they were being held as evidence. The investigating officer and her sergeant concluded the altercation was a matter of mutual combat and did not refer the case for prosecution by the state attorney. The nascence of the charges against Respondent emerged from two events. First, the mother of the two juveniles filed a complaint of excessive force against the PCSO. Second, when the investigating officer discovered that Respondent had already persuaded the property department to change the status of the brass knuckles, so that they would not be destroyed, the Clearwater Police Department complained to the PCSO about a deputy sheriff allegedly interfering with evidence. As a result, Petitioner initiated an administrative investigation that led to this proceeding. The penultimate allegation in the synopsis of the charging document is that Respondent provided confidential information regarding an open criminal case to another suspect. It is undisputed that when Respondent discovered on November 5, 2007, that he was listed as a suspect in the police report, Respondent told the parent that had prevented the second juvenile from attacking Respondent that the parent was also listed in the report as a suspect. The disclosure by Respondent was immaterial and had no impact on a pending criminal investigation. The Clearwater Police Department classified the altercation as mutual combat and did not refer the case for prosecution. The final allegation in the synopsis of the charging document is that Respondent failed to advise his supervisors of material facts regarding his “involvement in the ongoing . . . criminal investigation” and “subsequent actions” that Respondent took. The distinction, if any, between “involvement in the ongoing investigation” and “subsequent actions” is unclear to the fact-finder because the charges deal with Respondent’s actions during a pending investigation. The charges of misconduct do not address Respondent’s “subsequent actions” after the investigation was completed and case was closed. The investigating officer did not inform Respondent when she responded to the scene on November 3, 2007, that she was listing Respondent as a suspect. She did not decide to list Respondent as a suspect until she prepared her report that evening, long after Respondent had completed his written report that was included with the police report and had left the scene. Respondent did not learn that he was a suspect until Respondent obtained a copy of the police report on November 5, 2007. After obtaining a copy of the police report, Respondent talked to Lieutenant Rachel Hughes of the Courthouse Security Division at the PCSO and another of Respondent’s supervisors. Significant variation exists in the separate accounts of the conversation between Respondent and Lieutenant Hughes. The testimony of Lieutenant Hughes is inconsistent, self- contradictory, and less than credible and persuasive. The only credible and persuasive testimony concerning the conversation is the testimony of Respondent. During the conversation between Respondent and Lieutenant Hughes, Respondent expressed his displeasure at being listed in the police report as a suspect, stated that he would like to complain to someone at the Clearwater Police Department, and asked if Lieutenant Hughes knew anyone there. Lieutenant Hughes suggested that Lieutenant James Steffens at the Clearwater Police Department is a “good guy.” Before contacting Lieutenant Steffens, Respondent called the property department and identified himself as “Milewsky from over at the courthouse.” Respondent did not disclose that he was a suspect in the case involving the brass knuckles. Respondent knew or should have known that the property department employee reasonably believed that the call and request was related to official business. Lieutenant Larry Smith was in charge of the property department at the time and testified at the hearing. The property department would not have enhanced the status of the brass knuckles at the request of someone who was listed as a suspect in the police report. The failure to disclose to the property department that Respondent was a suspect in the case is not alleged in the charging document, and the ALJ cannot find Respondent guilty of a charge not alleged in the charging document. The relevant language in the charging document is confined to an allegation that Respondent failed to advise his “supervisors” of his “involvement in the ongoing . . . investigation” and his “subsequent actions.” Those assigned to the property department are not “supervisors” of Respondent. Respondent next telephoned Lieutenant Steffens of the Clearwater Police Department to discuss the fact that Respondent was listed as a suspect in the police report. Respondent and Lieutenant Steffens disagree over material details of the conversation, including the issue of whether Respondent requested Lieutenant Steffens to change the police report to delete Respondent’s name as a suspect. The fact-finder resolves the disparity in testimony between Respondent and Lieutenant Steffens against Respondent. The testimony of Lieutenant Steffens is the only credible and persuasive testimony concerning the conversation between the two men. Respondent did not want to remain listed as a suspect, but denied that the purpose of his call to Lieutenant Steffens was to have the report changed to delete his status as a suspect. Respondent insisted that his telephone call to Lieutenant Steffens was “unrelated” to changing his designation as a suspect. The testimony of Lieutenant Steffens was plausible, credible, and persuasive. Lieutenant Steffens recalled that Respondent advised Lieutenant Steffens that a Clearwater Police Department investigation contained erroneous information, and Respondent sought to get the error corrected “as soon as possible.” After emphasizing Respondent’s seniority and the lack of experience of the investigating officer, who was a rookie, Respondent stated that he did not want to make a complaint against the investigating officer, but just wanted the report changed so that Respondent was listed solely as a victim in the report. Respondent asked Lieutenant Steffens if they could get that done as quickly as possible. Lieutenant Steffens sent a message by email in this regard to Sergeant Wilton Lee, the supervisor for the investigating officer, asking Sergeant Lee to telephone Respondent. Sergeant Lee did not return to work until Wednesday, November 7, 2007. Before Lieutenant Steffens heard from Sergeant Lee, Lieutenant Steffens received a voice mail from Respondent inquiring as to why nothing had been done yet on the case. Lieutenant Steffens also received a telephone call from another suspect. Lieutenant Steffens telephoned Sergeant Lee directly about the inquiries. When Sergeant Lee reported to work on November 7, 2007, the police report was waiting for his approval. Sergeant Lee telephoned Respondent, whom Sergeant Lee knew to be a deputy sheriff, and agreed that Respondent should not be listed in the police report as a suspect. Respondent failed to advise his supervisors of two forms of involvement in the investigation. First, Respondent failed to advise his supervisors of his involvement in the enhancement of the brass knuckles from that of waiting for destruction to that of evidence. Second, Respondent failed to advise his supervisors of his efforts to change the police report to delete his name as a suspect. A preponderance of the evidence supports a finding that the failures described in the preceding paragraph violate requirements for loyalty and truthfulness. Those requirements are described in General Order 3-1.1 and Rules and Regulations 5.2 and 5.6. The Progressive Discipline Worksheet assigns 75 Progressive Discipline Points for violations of all of the charges in the charging document. However, a preponderance of the evidence supports a finding that Respondent is guilty of violating only two of the six charges of misconduct described in the synopsis in the charging document. The Worksheet does not delineate the points assigned to each charge, and Petitioner has not promulgated intelligible standards that enable the fact- finder to determine the points that should be allocated to the two violations committed by Respondent. No aggravating factors are evidenced in this proceeding. Respondent has no prior discipline during his 19 years of experience with the PCSO. The culpable actions of Respondent did not result in physical or financial harm to a member of the public or members of either the PCSO or the Clearwater Police Department. The culpable actions of Respondent did not compromise an ongoing criminal investigation. A preponderance of the evidence does not show that termination of employment is a reasonable penalty. Untruthfulness and disloyalty are serious offenses but, absent any aggravating circumstances, a reasonable penalty is suspension without pay beginning on March 14, 2008, and reinstatement to the former position of employment immediately upon the entry of a final order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order adopting the findings of this Recommended Order; suspending Respondent’s employment without pay from March 14, 2008, to the date of the final order; and returning Respondent to his former position of employment as of the date of the final order. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner L. C. Prevatt is the owner and operator of the Riverview Speed Wash, Inc., a coin operated laundry which has been in existence for over ten years. The facility has twelve top load washers, four double load washers, one triple load washer and seven gas dryers. It is open from 7:00 a.m. to 9:00 p.m., seven days a week. The facility is located in a shopping center in space which petitioner rents on a month-by-month basis. The facility utilizes a 0.0075 mgd waste treatment plant with effluent disposal to a county-owned drainage ditch which is connected and discharges to the Alafia River approximately 0.6 miles south of the facility. On or about May 29, 1981, petitioner submitted an application for a temporary operation permit for his Riverview laundry facility. Temporary operation permits are issued by the DER when a facility is not currently meeting State water quality standards and the applicant needs or desires a period of time to bring the facility up to the applicable standards. Here, the petitioner stated on his application that no upgrade of the waste treatment facility was planned. The application further stated that the facility would be connected to an area wide regional waste treatment system when that system became available. After numerous requests for further information from the applicant and various inspections of the facility, the DER issued its notice of intent to deny petitioner's application for a temporary operation permit. Reasons for the intended denial included failure to provide requested background water quality information, failure to provide a proposed water quality standards compliance schedule, failure to provide reasonable assurance that a municipal sewer would be available as an alternative means of disposal and improper and deficient operation and maintenance of the facility. Numerous inspections of the petitioner's facility by personnel from the DER and the Hillsborough County Environmental Protection Commission revealed that the facility was not functional in terms of operating correctly and that the design of the plant was inadequate to meet State water quality standards. Specifically, these inspections revealed that the chlorination equipment was not operational, that the trickling filter was not operational, that the removal rates for BOD and suspended solids were consistently and significantly less than the State standard of 90 percent, that the discharge and effluent were of a milky color and would not meet the State standards for turbidity and color, that the water quality of the drainage ditch was extremely low and that the water quality results were actually worse after going through the existing system. It was determined that the discharge was degrading the quality of the receiving waters and that, even if the petitioner's operational and maintenance problems were solved, the design of the facility is not adequate to assure future compliance with State standards. Petitioner admits that his facility does not currently meet State water quality standards. In mitigation, it is contended that many other laundries in the area also do not meet State standards, that it is not economically feasible to redesign the facility to attain compliance, that he has no land available upon which to discharge effluent and that he would be willing to install a sand filter and did have the permission of the manager (not the owner) of the property to discharge effluent into the parking lot drain ponds. No written evidence of this agreement was adduced and there was no demonstration that such runoff ponds would be able to hold and/or treat effluent from the petitioner's facility. There was also no evidence offered to demonstrate that a municipal or regional sewer system would be available in the near future to serve the laundry facility.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for a temporary operation permit for Riverview Speed Wash, Inc. be DENIED. Respectfully submitted and entered this 7th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1982. COPIES FURNISHED: L. C. Prevatt Post Office Box 998 Gibsonton, Florida 33534 William W. Deane, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On the evening of February 7, 1978 Officer Di Stasio stopped a vehicle driven by Michael Gross in the City of Clearwater. The primary reason for stopping this vehicle was that Gross had exited onto the main street from a side street and nearly collided with the car driven by Di Stasio. After stopping the vehicle Di Stasio questioned the driver regarding the registration of the vehicle, among other things, and although Gross could not produce the registration he did produce a Bill of Sale for the vehicle dated in 1976. Gross told Di Stasio that the car had been registered in his wife's name, that they were in the process of getting a divorce, and the registration was probably in the mail to him. The tag was from Kentucky, was bent and rusty, and was secured to the vehicle by wire. In lieu of citing Gross for driving with an invalid tag Di Stasio removed the tag from Gross's car and advised Gross that it was unlawful to drive the vehicle without a valid tag. Di Stasio subsequently threw the tag in the trash and made no report of the incident. The Clearwater police had a book showing the various states' automobile tags and expiration dates of these tags. Had Di Stasio radioed in for this information he would have learned that the tag on Gross' car had not expired. Police officers had been instructed regarding the existence of the book but Di Stasio apparently missed the training session when this Information was disseminated. The following morning on February 8, 1978 Gross appeared at the police station to inquire what he needed to do to drive his car. He related the instance of the previous evening to Captain Enlow of the Clearwater Police and when the latter could find no report of the incident called Gross at his home to come down to the police station. Di Stasio advised Captain Enlow that he thought the tag was invalid and therefore he removed it from the car. Although the tag had a `77 decal on it information in the police station indicated the tag was valid until March, 1978. Di Stasio took Gross to the tag office in the courthouse where he was able to obtain a temporary tag for the vehicle. As a result of Officer Di Stasio removing the tag and failing to maintain custody of the tag as required by police regulations he was suspended without pay for three days. Subsequent inquiries to Kentucky confirmed that the car was properly registered to Michael Gross and that the tag on the vehicle was a valid tag on February 8, 1978. Respondent's primary explanation for removing the tag from the vehicle was that Gross told him the tag had been placed on the vehicle to come to Florida and that it did not belong to the car. Gross was not a witness at this hearing and this testimony was rebutted by information in Exhibit 6 received from the Lexington, Kentucky Police. In defense of his actions in not securing the tag as required by Rule 73 when it came into his possession, Respondent produced several witnesses who testified that they had been instructed not to bring in partly filled beer cans or to remove whiskey from a motor vehicle when the driver was apprehended. None of these witnesses recalled any specific instance where a tag had been removed from a vehicle and not accounted for pursuant to Rule 73. Respondent contended that a police officer is given wide latitude to exercise discretion in the handling of property and as an example cited the instances when children's toys are left in the street and the police do not take this property into custody. The principal exception to the rule that property coming into the possession of a police officer is to be turned in to the property office involves the handling of alcoholic beverages which is not evidence.
Findings Of Fact On or about May 3, 1978, the petitioner filed with the respondent an application for dredge and fill permits and for a water quality certificate to allow petitioner to complete a planned residential community on and adjacent to Marco Island, Florida. The application encompasses approximately 17,000 acres of petitioner's property, and hundreds of thousands of dollars were expended by petitioner in preparing the application. On November 28, 1979, respondent issued a notice of "intent to deny" the permit application. Among the grounds for denial cited in the nine page "intent to deny" are that the petitioner ". . .has not provided the Department with affirmative reasonable assurance, as required by Subsection 17-4.28(3), Florida Administrative Code, that the immediate and the long-term impacts of this project will not violate State Water Quality Standards." Similar language concerning assurance of water quality standards appears throughout the "intent to deny," as does the Department's assertion of dredge and fill permitting jurisdiction over the proposed development areas. Specific subsections and paragraphs of regulatory rules concerning jurisdiction are not identified in the Department's notice of "intent to deny." The respondent's "intent to deny" is the subject of pending administrative proceedings between these same parties in Division of Administrative Hearings Case Nos. 79-2471 and 80-683. In those proceedings, the petitioner is contesting, inter alia, the Department's application of the rules under challenge herein. By affidavit, the respondent's Chief of the Bureau of Standard Permitting, testified as follows: "I am personally aware that dredge and fill activities often result in violations of water quality standards, result in adverse impacts to and create potentially harmful conditions for animal and plant life, result in the alteration of the chemical, physical and biological integrity of waters, and result in the emission of water contaminants."
Findings Of Fact Jaime Fernandez was transferred in 1977 to Clearwater Traffic Engineering Department as an electrician's helper from the Clearwater Pollution Control Department. Prior to coming to Water Pollution Control, Respondent had been a CETA employee in the Parks Department from which he was fired for incompetence (Respondent's testimony). Although the exact situation was not made clear to the Hearing Officer, it appeared that Respondent appealed his firing from the Parks Department alleging some type of discrimination, and, following a hearing, the City was required to reemploy him. At all times here relevant, Respondent was an employee in the Classified Civil Service of Clearwater. Respondent testified that the evaluations he received at Water Pollution Control were satisfactory overall, and the request for a transfer was initiated by him. As an electrician's helper, Respondent was one of six or seven electrician's helpers. When he was subsequently transferred to the position of ET helper, he was the only ET helper in the Traffic Engineering Department. With a larger number of electrician's helpers it was easier to assign trench digging, painting and other similar menial jobs to Respondent without detracting from the overall efficiency of the Department than it was when Respondent became the only ET helper in a group with two ET's. Respondent served as an electrician's helper in the Traffic Engineering Department for approximately two years before he was transferred to the position of ET helper. During these two years as an electrician's helper, Respondent failed to get a satisfactory overall evaluation and never received a merit pay increase. He was transferred to the electronics shop as an ET helper in late 1979. In the six months follow-up review of Respondent's unsatisfactory evaluation report dated 2-9-80, the Director of the Traffic Engineering Department recommended Fernandez be terminated for incompetence. This recommendation was rejected by the Personnel Department because of insufficient documentation of the events giving rise to the recommendation. On August 25, 1978, Respondent was given a letter of reprimand following an accident involving a truck, driven by Respondent, and a building in which Respondent's inattention contributed to the accident (Exhibit 6). On April 14, 1980, Respondent was suspended from duty without pay for three days on charges of incompetence and inefficiency in his work product, errors in daily time cards and other reports, and continuous performance evaluations indicating improvement needed. On the instant charges the evidence was unrebutted that during the period August 1, 1980, through March 15, 1981, 19 errors were made by Respondent on the time sheets he submitted. Twenty-seven other employees in the same Department fill out time sheets and, during the same period, the next highest number of errors was eight. Most of the employees made only one or two errors in completing their time sheets. During the period February 2, 1981 to February 5, 1981, Respondent was given a work order to construct and install back boards in two transit controllers (Exhibit 1). Included in the work order was a drawing showing how the panel was to be connected and detailed instructions on how the work was to be performed. Despite close supervision, Respondent failed to follow the instructions, cut the wires longer than the maximum three feet lengths as shown on the work order, installed grounding bar in the wrong location, and did not properly lace the harness. This work order was within the capability of a reasonably qualified ET helper to complete in twenty hours. Respondent took forty-seven hours to accomplish this work and made numerous errors which had to be corrected by others. During a period in mid-February; 1981, Respondent was assigned a detector to repair. Repair of this equipment was also within the capability of a reasonably qualified ET helper in about four hours. After working on this detector for twenty-one hours, Respondent was still unable to repair it. It was given to an electronics technician who repaired the detector in approximately one hour. Respondent, in work order 136, was given an LT 169 load pack to repair. Test equipment is set up in the petitioner's shop for trouble shooting this equipment. After testing this load pack, Respondent replaced the part he thought defective but, when tested by someone else, the equipment was still inoperative. The part replaced by Respondent was the part most frequently found defective in this load pack. In this instance, this part was not the cause of the equipment being in operative. This was a routine work order that a reasonably qualified ET helper should have been able to complete. Respondent has been counselled and evaluated numerous times by different supervisors in the Traffic Engineering Department for the past three years and has yet to be assigned a satisfactory evaluation. No other employee has been retained in a position with the City of Clearwater for such an extended period with unsatisfactory evaluations. Respondent testified that he has completed a two-year course in electronics at Pinellas County Vocational School and has one year of college. Accordingly, he deemed himself better qualified as an ET helper than as an electrician's helper. He felt he should have been disciplined for incompetency as an electrician's helper during the two years he worked in that Division, rather than as an ET helper in which position he has worked for approximately one year. Respondent's testimony, that he was denied earned leave or pay for this leave when he was dismissed, was not rebutted. However, the City of Clearwater's regulations relating to leave were not presented to the Hearing Officer, and without access to these regulations, Respondent's claim cannot be resolved.
The Issue The issues for determination are: (1) whether Hillsborough County took any adverse employment action against Petitioner, David Moreda; (2) whether Petitioner disclosed information in the nature specified under Subsection 112.3187(5), Florida Statutes (2006); (3) if yes to the foregoing, whether such adverse employment action against Petitioner was causally related to any disclosure Petitioner made of information specified in Subsection 112.3187(5), Florida Statutes (2006); whether Petitioner provided above-referenced information to Respondent's chief executive officer; and (5) whether Petitioner timely filed a complaint of whistle-blower retaliation.
Findings Of Fact The County administrator, Patricia G. Bean, is the head of the Hillsborough County administrative organization and the chief executive officer of Hillsborough County. As County administrator, Ms. Bean is responsible for carrying out all decisions, policies, ordinances, and motions made by the Board of County Commissioners. She is also responsible for oversight of all the departments under the County Administrator's Office and uses approximately 24 departments within the Hillsborough County organization to achieve the functions necessary to County government. The Public Works Department (Public Works) and the Water Resource Services Department (Water Resource Services), formerly referred to as the Water Department, are each stand-alone departments. Most of the functions of Public Works and Water Resource Services are separate and distinct from each other. From approximately March 1986 through May 2006, Hillsborough County employed Petitioner in Water Resource Services. Petitioner began working for Hillsborough County as a senior groundskeeper. Thereafter, he became a landscape gardener, which involved cutting grass and maintaining wastewater facilities. Petitioner ultimately became a Plant Maintenance Mechanic I and then a Plant Maintenance Mechanic II. As a Plant Maintenance Mechanic II, Petitioner's duties were to operate and maintain lift stations for Water Resource Services. As of October 2003, Petitioner was employed as a Plant Maintenance Mechanic II and was assigned to work at the County's South Pump Station. In or about October 2003, Petitioner was injured in a nonwork-related motorcycle accident which resulted in Petitioner's breaking both of his feet. As a result of his injuries, Petitioner requested and the County granted a medical leave of absence. Petitioner tried to return to work in April 2004, but it was too soon after his motorcycle accident. After Petitioner's attempt to return to work was unsuccessful, and apparently premature, his doctor placed him on another medical leave. Initially, Petitioner was on short-term medical leave for about six months, followed by a long-term disability leave for the next year or so. Hillsborough County preserved Petitioner's employment status while he was on these leaves of absence necessitated by injuries he sustained in the motorcycle accident. Some time prior to January 2005, in anticipation of returning to work, Petitioner applied for a transportation worker position in Public Works. In March 2005, the County sent Petitioner to have a doctor complete a "Fitness for Duty Report" form. Petitioner went to his orthopedic surgeon, who completed the form on March 16, 2005. The doctor noted on the form that Petitioner could return to work on April 4, 2005. As he prepared to return to work after his one and one-half years of medical leave, Petitioner began to request work location transfers. Petitioner requested three such transfers within Water Resource Services, where he was employed. Two of the three work location transfers were granted. In the instance when Petitioner's work location transfer was not granted, Petitioner was allowed to transfer to another work team at his assigned work site. On January 24, 2005, while still on leave of absence, Petitioner requested a transfer of work location from the County's South Pump Station, where he was assigned before he went on medical leave, to the Central Pump Station. According to Petitioner, he requested this transfer because the Central Pump Station was closer to his home. The director of Water Resource Services, Paul Vanderploog, granted Petitioner's request. By letter dated March 29, 2005, about two months after Petitioner's first request for transfer of work location was granted, and while he was still on leave, Petitioner requested another transfer. This time Petitioner requested to be transferred from the County's Central Pump Station to the Northwest Pump Station.1/ When Petitioner requested a transfer from the Central Pump Station to the Northwest Pump Station, he told Vanderploog that if this request were honored, he (Petitioner) would not request another transfer. Petitioner specifically asked to be placed under either Wally Peters or Charlton Johnson, both of whom were team leaders at the Northwest Pump Station. In addition to requesting the transfer from the Central Pump Station, Petitioner advised Mr. Vanderploog that he was looking for another position in the County and had been looking for the past six months. Petitioner's March 29, 2005, letter stated, in part, the following: I pledge to you, right now, that I will return to full-duty under either Wally Peters or Charlton Johnson with NO other requests for movement. I promise you, as a gentleman, that I will accept the assignment at NW [Northwest] pump stations [sic] with no subsequent requests for lateral movement contingent upon my return. However, I will be looking for another position in the County, as I have done for the past 6+ months. I want to do something different with my life, and until the right opportunity comes along, I will "stick it out" in pump stations. Vanderploog granted Petitioner's second transfer request and transferred Petitioner from the Central Pump Station to the Northwest Pump Station. On April 4, 2005, the day Petitioner's physician had stated Petitioner could return to work, Petitioner was scheduled to begin work at the Northwest Pump Station. However, Petitioner called in sick that day and did not report to work. When Petitioner returned to work, he reported to the Northwest Pump Station and worked there about two weeks. Meanwhile, on or about April 6, 2005, two days after he was to report to work, Petitioner requested a third transfer of work location. This time he wanted to be transferred from the Northwest Pump Station to the South Pump Station, where he was initially assigned. According to Petitioner, he requested the transfer from the Northwest Pump Station because he was not comfortable working on the team lead by Charlton Johnson, to which Petitioner had been assigned. Mr. Vanderploog denied Petitioner's request to transfer from the Northwest Pump Station to the South Pump Station. The reason Mr. Vanderploog denied the request was that he knew Petitioner and the team chief at the South Pump Station had communication problems and did not get along very well. Petitioner had detailed his perception of these problems in his March 29, 2005, letter to Mr. Vanderploog, referred to in paragraph 13 and 15 above. Mr. Vanderploog believed that if he transferred Petitioner back to the South Pump Station, the team chief with whom Petitioner did not get along, may have left that location, and he (Vanderploog) did not consider this an acceptable tradeoff. Less than two weeks after Petitioner requested his third transfer (from the Northwest Pump Station to the South Pump Station) and Mr. Vanderploog denied the request, Petitioner wrote and sent an e-mail dated April 17, 2005, to the County administrator, Ms. Bean, and other upper management. In the April 17, 2005, e-mail, Petitioner stated that he believed it was inappropriate to employ Synrick Dorsett, a sexual predator, in Water Resource Services in an unsupervised capacity. Specifically, Petitioner stated: The problem is that an employee of the Water Department, who is a registered sexual predator, is allowed to roam unsupervised through out [sic] Brandon and Valrico (and anywhere he cares to go) as part of his job assignment in the Water Department. His name is Syndrick Dorsett. . . He is on FDLE's website as a sexual predator. He should NOT be allowed to roam freely in a County vehicle. At the time Petitioner wrote the e-mail to the County administrator, he had already known for ten years that there was a sexual predator working in Water Resource Services. In fact, Synrick Dorsett’s status as a sex offender was well known in Water Resource Services for many years. Petitioner testified that he wrote the April 17, 2005, e-mail, after he "had certain thoughts" about another County employee named Synrick Dorsett. Petitioner testified that he began to have these thoughts after the County Commissioners proposed putting photos of sexual predators in County parks. Petitioner claimed that Dorsett came to mind in light of those proposals, because he was under the impression that Dorsett was a "sexual predator" and was a County employee as of April 2005. However, this testimony is not credible in light of Petitioner's admission to a County investigator. In the summer of 2005, Petitioner admitted to the County, through Bob Sheehan, the chief investigator of the County's Professional Responsibility Section of the Consumer Protection and Professional Responsibility Agency, that he sent the April 17, 2005, e-mail to the County officials in order to better his leverage to obtain the position he wanted in Water Resource Services. In fact, about two weeks after Petitioner sent the April 17 e-mail, even though Mr. Vanderploog had denied Petitioner's third work location request (from the Northwest Pump Station to the South Pump Station), Vanderploog attempted to address Petitioner's concern that he (Petitioner) was uncomfortable working on the team to which he was assigned. In order to accommodate Petitioner, on or about May 2, 2005, Mr. Vanderploog moved Petitioner from the work team that he was initially assigned at the Northwest Pump Station to the other work team at that location. In or about April 2005, Petitioner interviewed with Public Works for a position as a transportation worker, the position he had applied for several months earlier. Prior to accepting the transportation worker position in Public Works, Petitioner indicated by his signature on two different County forms that he understood the job description for the position and could perform the functions of the job. Petitioner signed the County's pre-printed job description form on April 21, 2005, indicating that he read and understood the basic job description. A few days later, on May 2, 2005, Petitioner signed an Acknowledgement of Position Description Review form, in which he acknowledged that he "is able to perform the function" of the transportation worker without accommodations. On or about May 4, 2005, Petitioner accepted the position of transportation worker with Public Works. On a County form, Petitioner acknowledged that he understood that his new position with Public Works, county-wide, is a voluntary demotion (in terms of the hourly pay rate) and that if he did not successfully complete the six-month probationary period, he would no longer be employed by Hillsborough County. Petitioner was scheduled to start his new position as transportation worker on May 23, 2005. As noted above, Petitioner notified Mr. Vanderploog in the March 29, 2005, letter that he was looking for another position with the County. However, Petitioner never notified any manager in Water Resource Services that he had accepted the transportation worker position in Public Works. Water Resource Services first learned that Petitioner had accepted the position of transportation worker on or about May 10, 2005, when Public Works contacted the interim section manager (section manager) of Water Resource Services' wastewater operations and requested that his office complete a change of status form for Petitioner. After learning from Public Works that Petitioner had accepted the transportation worker position, the section manager wrote an e-mail to Petitioner. In the e-mail, the section manger told Petitioner that he had been notified that Petitioner had accepted the transportation worker position and, therefore, Petitioner needed to resign from his current position as Plant Maintenance Mechanic II. The resignation was necessary in order to process the paperwork to effectuate Petitioner's move to his new position as transportation worker. Prior to learning that Petitioner had accepted the position with Public Works, the section manager was concerned that Petitioner had only worked one day after he received medical clearance to return to work. In light of this concern, the section manager had instructed Petitioner's supervisor to initiate a written reprimand for Petitioner's failure to come to work. However, after receiving notice from Public Works that Petitioner had accepted a job in that unit, the section manager decided he would not pursue the previously-planned disciplinary action. Petitioner was aware of the contemplated disciplinary action. However, in the e-mail referred to in paragraph 31, in which he asked Petitioner to submit a resignation letter, the section manager also advised Petitioner that he (the section manager) would not pursue any disciplinary action against Petitioner since Petitioner was leaving Water Resource Services and taking another job. On May 10, 2005, Petitioner voluntarily resigned from his position in Water Resource Services, after he received the e-mail from the section manager and after he had accepted the position as a transportation worker in Public Works. Before starting his new job with Public Works in May 23, 2005, Petitioner asked Water Resource Services to rescind his resignation. Water Resource Services declined Petitioner's request because of his refusal to show up for work and his behavior toward, and inability to appropriately interact with, people in the entire department. After arriving at the job site in Public Works on his first day of work as a transportation worker, Petitioner testified that he knew that taking this job was a mistake. His first assignment involved installing a guardrail, work which was very labor intensive. Petitioner believed that the physical requirements of this job could result in his re-injuring himself. Given his concerns, Petitioner did not work the entire day and left after only a few hours and never returned. After his first and only day working as a transportation worker, Petitioner indicated he could not perform the duties of that job. Thereafter, Public Works temporarily assigned Petitioner to the storm water unit in the County Center, where he performed duties such as filing, making copies, and "running" mail. He worked in this temporary assignment four or five months, including the summer of 2005. The County scheduled a Fitness-for-Duty examination for Petitioner that occurred on June 16, 2005. The health care professional who conducted the examination concluded Petitioner must observe a lifting restriction and must walk only on even ground; he could not walk on rough, uneven terrain. The health care provider also indicated that Petitioner's physical condition that required these restrictions was a permanent condition. On August 8, 2005, Petitioner signed a County form, indicating that he could not perform any of the functions of a transportation worker. A Fitness-for Duty meeting was conducted on August 11, 2005. During that meeting, Public Works reviewed all information regarding Petitioner's physical capabilities and the job tasks associated with the transportation worker position and other positions to which he requested a transfer, Plant Maintenance Mechanic I or II in the Storm Water section of Public Works. Public Works, in conjunction with the Human Resources Department, determined that Petitioner could not perform the essential functions of the transportation worker position or the Plant Maintenance Mechanic I and/or II positions. Given the outcome of the Fitness-for-Duty meeting, by letter dated August 23, 2005, the County notified Petitioner that he had 90 days from the date of the letter to find another position or Public Works would have to terminate his employment.2/ As the 90-day deadline was about to expire, Public Works determined that it needed to have a due process hearing on Petitioner's employment status. The time required for culmination of the hearing process resulted in the 90-day period Petitioner was given to find a job being extended by more than two additional months. On or about August 26, 2005, Petitioner began an approved leave of absence in conjunction with his search for another position. After Petitioner sent the e-mail discussed in paragraph 31, Petitioner was invited to interview for four positions with the County, including positions in the Library Services Department, Public Works, and the Parks, Recreation and Conservation Department. On or about October 20, 2005, Petitioner was interviewed for a position with the Library Services Department. However, he was not selected for that position because that position required that the person be bilingual, and Petitioner was not bilingual. The Parks, Recreation and Conservation Department attempted to interview Petitioner on two different occasions. In the first instance, Petitioner failed to show up for an interview scheduled for August 4, 2005, at a time agreed upon by Petitioner. On or about November 19, 2005, Petitioner declined an interview for a second position with the Parks, Recreation and Conservation Department because the salary was too low. On or about November 23, 2005, Public Works requested an extension of Petitioner's leave of absence. The Hillsborough County Civil Service Board (the Board) approved the extension. In December 2005, Petitioner was interviewed for one of three vacant positions as an inspector/spray/equipment operator in the Mosquito and Aquatic Weed Control Section of Public Works. That position required some degree of expertise in spraying for mosquitoes and handling chemicals used for controlling pests on grass. Most of the interview questions were designed to determine the interviewee's level of technical knowledge about the required job duties. Petitioner's score on the interview rating was lower than any of the other candidates. Therefore, the more qualified applicants were offered the positions. In a memorandum dated December 7, 2005, Scott Cottrell, P.E., engineering director, Public Works, requested a due process hearing for the purpose of seeking to terminate Petitioner from the transportation worker position. Mr. Cottrell cited the following reasons for seeking this action: (1) Petitioner's last active day of work was August 25, 2005, and he had been on medical leave since August 26, 2005; (2) at the interviews for the transportation worker position, Petitioner had read and signed a Job Description form and indicated he understood the duties of that position; (3) after reporting to work the first day, Petitioner advised the unit that he could not finish the day's work activities due to his physical condition; (4) Petitioner had worked only part of one day as a transportation worker; (5) the determination at the August 11, 2005, Fitness-for-Duty meeting that Petitioner was unable to perform the essential functions of his position as transportation worker; and (6) the determination that Petitioner could not perform the duties of Plant Maintenance Mechanic I or II positions in the Stormwater Section of Public Works due to his medical restrictions. The memo randomly noted that Petitioner had been given 90 days to seek and secure other employment, but had been unable to do so. Finally, Mr. Cottrell wanted to fill the position with someone who could perform the job. According to Mr. Cottrell, "[d]ue to our [Public Works] mission, it is imperative that we keep our positions actively filled; therefore, it has become necessary to proceed with further action to seek the termination of [Petitioner]." On or about February 1, 2006, the Appointing Authority conducted a due process hearing regarding Petitioner's employment. On February 10, 2006, Hillsborough County dismissed Petitioner from his position with Public Works. The notice of dismissal stated that Petitioner's dismissal was based on a determination at a Fitness-for-Duty meeting on August 11, 2005, where it had been determined that Petitioner was unable to perform the essential functions of the transportation worker position for Public Works. The notice stated that the dismissal was based on Civil Service Board Rule 11.2(27). Civil Service Board Rule 11.2(27) provides that an employee in the classified service, such as Petitioner, may be dismissed where the employee demonstrates a mental or physical impairment that prevents such employee, with or without accommodation, from performing the essential functions of his or her position. The notice of dismissal dated February 10, 2006, specified that the dismissal was effective on that date. The notice also advised Petitioner that he could appeal the dismissal to the Board by filing a request for hearing within ten calendar days from the date of receipt of the notice. Petitioner challenged his dismissal and filed an appeal request on February 20, 2006. On the appeal request form, Petitioner indicated that he received the notice of dismissal on February 13, 2006. On June 5, 2006, the Board heard Petitioner's appeal of his dismissal. During this proceeding, at which both parties were represented by counsel, the Board considered the County's Motion for Summary Judgment, the opposition thereto, exhibits in the record, and argument of counsel. On June 20, 2006, the Board entered a Final Summary Judgment in the case affirming Petitioner's dismissal, after finding certain material facts to be undisputed. Among the undisputed material findings was Petitioner's admission at the February 1, 2005, due process hearing, that he could not perform the duties of transportation worker.3/ On or about July 10, 2006, Petitioner sent a memorandum to Camille Blake, the County's Equal Employment Opportunity manager, and Robert Sheehan requesting an investigation. In the memorandum, Petitioner alleged that Water Resource Services harassed and retaliated against him for reporting and exposing to the media "a register [sic] sexual predator on the payroll." According to the memorandum, Petitioner began looking for another position in the County as a result of the alleged harassment and retaliation, and this job search resulted in Petitioner's being offered and accepting the job in Public Works. Petitioner's statement in the July 10, 2006, memorandum, that he began looking for a job because he was being harassed and retaliated against by persons in Water Resource Services is not credible contrary to Petitioner's March 29, 2005, letter to Mr. Vanderploog. In that letter, Petitioner stated he had been looking for another position in the County for the "past 6+ months," because he "want[ed] to do something different with [his] life." Based on the foregoing, Petitioner returned to work in April 2005 and took the transportation worker position, not because he was being harassed or retaliated against, but because he wanted to do "something different with [his] life." In the July 10, 2006, memorandum, Petitioner also stated that although he accepted the job in Public Works, he really wanted to stay in Water Resource Services so he did not immediately submit his resignation. In fact, Petitioner stated that he was "about to" call Public Works and rescind his acceptance, but before he could do so, he received the May 10 e-mail from the section manager, referred to in paragraph 31, "demanding" Petitioner's resignation. Petitioner's July 10, 2005, memorandum stated that the only reason he submitted the resignation letter to Water Resource Services was because he had been previously told he was "insubordinate and facing charges," and he wanted to "avoid more consternation and strife and to not be insubordinate." According to the memorandum, Petitioner attempted to rescind his resignation letter the day after it was submitted, but the manager in Water Resource Services rejected Petitioner's attempt to rescind his resignation. Notwithstanding Petitioner's July 10, 2006, memorandum stating that he was forced to resign, Petitioner's resignation was voluntary, and Water Resource Services was under no obligation to accept Petitioner's offer to rescind his resignation and to rehire him. By letter dated July 14, 2006, Petitioner filed a complaint with the County administrator. The complaint challenged the Board's Final Summary Judgment affirming Petitioner's dismissal under the state's Whistle-blower Act. The sole reason the County terminated Petitioner's employment was that he could not perform the functions of the transportation worker position in Public Works. Civil Service Board Rule 11.2(27) provides that employees in classified service, such as Petitioner, may be dismissed if a demonstrated physical impairment prevents the employee from performing the essential functions of his position. The evidence does not support Petitioner's claims that after he filed a Whistle-blower claim on April 17, 2005, he was forced to transfer to Public Works, and then was dismissed from that job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hillsborough County Board of County Commissioners enter a final order finding that Petitioner did not timely file his Whistle-blower complaint and dismissing the Petitioner's complaint. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 11th day of April, 2007.
Findings Of Fact The Petitioner in this action is the City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community, to include police protection. It has among other powers, the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831, pursuant to Chapter 21153, Special Laws of Florida, 1941. This ordinance deals with a career civil service system for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. A subunit within the City of Clearwater is the Clearwater Police Department which has rules and regulations which would apply to the employees within that Department. This case concerns charges placed by the Petitioner, City of Clearwater, against the Respondent, Danny Fivecoat, who held the position of Sergeant in the Clearwater Police Department on July 25, 1980. Those charges placed under the terms and conditions of a "Termination Dismissal Notice" which may be found as Joint Exhibit No. 3, admitted into evidence, set forth the accusations as alluded to in the Issues statement of this Recommended Order. The termination and dismissal notice was placed against the Respondent on December 15, 1980, when he was relieved as a police officer and dismissed from employment with the City of Clearwater. This action was taken in keeping with the authority of City of Clearwater Ordinance No. 1831 and pursuant to Rule 14, Section 6, Civil Service Rules of Clearwater, Florida. Subsequently, the Respondent attempted to explain and answer the charges and specification placed against him, but the explanation and answer were found to be insufficient by the appointing authority, City Manager, City of Clearwater, Florida, and pursuant to the terms and conditions of City of Clearwater Ordinance No. 1831, Section 2-38, the Respondent requested a formal hearing to be held before the Division of Administrative Hearings. That formal hearing was held in keeping with the terms of the aforementioned ordinance and the agreement between the City of Clearwater and the Division of Administrative Hearings to provide a Hearing Officer for these matters. See also Subsection 120.65(6), Florida Statutes. The hearing in this cause was conducted on March 25, 1981. In July, 1980, while employed as a sergeant in the Clearwater Police Department, the Respondent was assigned as supervisor of a TAC unit. Within that unit were five (5) or six (6) subordinate officers to the Respondent. One of the duties of the TAC unit in July, 1980, concerned an effort to ascertain the identity of a person or persons who were suspected of committing the felony offenses of burglary and arson at a commercial premises now known as Gulf Branch Saloon and formerly known as Bobby Sands 60. This bar was located on State Road 60 within the corporate limits of the City of Clearwater, Florida. To apprehend the offenders, Fivecoat established a surveillance network in the area of the bar location. The rough details of that network may be seen as Employee's Exhibit No. 6, admitted into evidence, which is a sketch, not to scale, depicting surveillance locations in July, 1980, and in particular, on July 25, through July 27, 1980. The numbers 1, 2 and 3 depict surveillance points of members of the TAC unit who were on foot. The word van indicates the location of the command post of the surveillance unit and in addition, there were two unmarked automobiles that were east and west of the location of the bar. These locations are not depicted with any particularity. The primary surveillance was being conducted by the three individuals shown by the numbers on Employee's Exhibit No. 6, with the idea being that from the three locations, the entire bar area could be surveilled. The van served as a command post and a rallying point for the officers on the surveillance team and was used as a location for taking breaks and meals while on the surveillance assignment. Those persons in the outlying surveillance posts would come to the van to take breaks and to have their meals after being relieved by Respondent and an Officer Adamson. Officer Adamson was assigned to drive the van and to assist Sergeant Fivecoat. The van itself was not equipped as a police unit per se, it was unmarked and did not have police emergency lights or sirens or communications equipment and was not designed for pursuit responsibility, although it had been used as mobile surveillance and on occasion, Officer Adamson had attempted to use it as a pursuit vehicle. The Respondent did not find it to be an appropriate pursuit vehicle, he did, however, feel that it could be used as mobile surveillance and as an apparatus for blocking suspects who were fleeing a scene of a crime in an automobile. The van had two front seats and other additional seating that had been placed there by arrangement of members of the TAC unit and it contained bicycles to be utilized for transportation in the area of a surveillance setting. The van was not primarily used for the surveillance, but it did allow a view of the west side of the subject bar and this observation was principally the assignment of Officer Adamson. On the evening of July 25, 1980, prior to setting up the surveillance operation alluded to herein, the Respondent and members of his unit went to a local restaurant in Clearwater, Florida, to have dinner and to discuss the plans of operation for that evening. While at the restaurant, the Respondent and one Kim Dubois, an employee in the State Attorney's Office which has jurisdiction in Clearwater, Florida, engaged in a conversation through which the woman Dubois determined that the surveillance activities were ongoing, specifically that the Respondent could be found in the parking lot of the Western Sizzler on State Road 60 later on that evening. In the course of this conversation, Fivecoat let it be known that it would be acceptable for Dubois to come to the stakeout and carry on a conversation while the surveillance was ongoing. Between 2:45 A.M. and 3:00 A.M., on July 26, 1980, Kim Dubois and one Diana Scanlan, another employee of the same State Attorney's Office, went to the location of the van in the Western Sizzler parking lot. At that time, the surveillance operations had been underway for a period of approximately an hour and forty-five minutes. The two women sat in their automobile and talked to Sergeant Fivecoat and Officer Adamson who were seated in the van. Fivecoat was on the passenger side of the van. At times the women were outside their car talking to the officers who remained in the van. Other officers who were on the surveillance team came to the van while the women were present and Officers other than Adamson and Fivecoat entered into conversation with the women. The two women remained in the area of the van engaging in a conversation until around 5:00 to 5:30 A.M., at which point they left the area of the surveillance and the members of the surveillance team left shortly thereafter. Nothing other than the conversation between the women and Respondent and other members of his team took place and no burglary or other incident occurred which required police intervention. Neither Fivecoat nor other members of his team asked the women to leave the area of their surveillance. While these events were going on, cars were operating on State Road 60 and at times, other persons were in the parking lot of the Western Sizzler eating establishment. None of the officers were wearing police uniforms on this occasion nor were they in uniform on the night of July 26, 1980, in the early morning hours of July 27, 1980. Again, in the early morning hours, around 2:45 to 3:00 A.M., July 27, 1980, the women came to the location of the van in the parking lot of the Western Sizzler where the Respondent and Officer Adamson were located. The surveillance team members were located in approximately the same positions as depicted in Employee's Exhibit No. 6. Initially, the women sat in their car and talked to the Respondent and Officer Adamson who were seated in the van, until the police officers ran out of soft drinks and the women departed and brought soft drinks back to the police officers in the van. The drinks were given to the officers and the women were allowed in the van, into the back part of that vehicle. While they were inside, the side cargo door remained open and no other matters transpired between the women and the police officers other than conversation between them. Sergeant Fivecoat never indicated that the women should not be in the van and the women were lead to believe that it was acceptable for them to be inside. The women remained in the van for approximately an hour and left the scene of the surveillance around 5:00 to 5:30 A.M. and the Respondent and members of his team concluded the surveillance shortly thereafter. Again, the pattern of traffic on State Road 60 and in the Western Sizzler parking lot was essentially the same as the evening and morning before and no criminal violation occurred which required the action of the police officers in the TAC unit. Had such activity occurred as was the expectation of sergeant Fivecoat, the members of the TAC team outside the van proper would have been primarily responsible for enforcement and he and Adamson were mostly responsible for relieving those officers during breaks. Nonetheless, Sergeant Fivecoat was the overall supervisor and responsible for the surveillance operation in question. On the second night and morning, other officers came to the van and entered into conversation with the women. On the second morning and evening, neither Sergeant Fivecoat nor any members of the TAC unit asked the women to leave the area of the surveillance. Sergeant Fivecoat knew that the presence of the two women at the TAC command post was in violation of the prohibition against their presence as set out in Rule 23, Rules and Regulations of the City of Clearwater Police Department.
Recommendation The Respondent's Composite Exhibit No. 5, admitted into evidence, is a compilation of fitness reports and other items related to the Respondent's performance as a police officer. These items are taken from the personnel file of the Respondent as administered by the Petitioner. With the exception of the incident occurring in June, 1977, related to a liaison of a sexual nature between the Respondent and a female which occurred in the months of March or April, 1977, for which the Respondent was given a ten-day suspension, the Respondent has not been disciplined in the past and has an acceptable record. The details of the other disciplinary action may be found in the Petitioner's Exhibit No. 1, admitted into evidence. The actions of Sergeant Fivecoat, as set forth in this Recommended Order, related to the incident involving the two civilian females is reprehensible and having occurred with the knowledge of Sergeant Fivecoat that he was committing a violation is inexcusable. Nonetheless, it is not of such magnitude that it would warrant the ultimate imposition of the penalty of dismissal as would be contended for by the City Manager, City of Clearwater. Likewise, the recommendation of demotion from Sergeant to patrolman and a five (5) day suspension as made by the interim Police Chief would seem too lenient. Under the circumstances, the recommendation herein would be that Sergeant Danny J. Fivecoat be reduced in grade to patrolman and be suspended for a period of thirty (30) days to run from the entry of a final order in this cause. 1/ DONE and ENTERED this 17th day of April, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1981.
Findings Of Fact The Department of Environmental Regulation (hereinafter "DER") issued a letter of "intent to issue" a permit based upon an application submitted by Respondent John H. Voorhees for a weedgate and associated fences to be placed at the mouth of the Hollerich Subdivision canal in Big Pine Key, Monroe County, Florida. The majority of owners of lots in the Hollerich Subdivision are in favor of the gate. The Hollerich Subdivision canal is approximately 1,200 feet long. it is an east-west dead-end canal with its mouth facing east. Floating seaweeds, grasses and detritus (a/k/a wrack are blown into the canal by the prevailing east and southeast winds. Although some surface wrack may blow back out of the canal with the occasional west wind, the sunken weeds will not. The accumulation of windblown wrack results in a stench caused by hydrogen sulfide gas from rotting weeds. The odor causes nausea, sore throats, and sneezing. Water quality tests of dissolved oxygen (DO) taken both in April 1985 and in November 1986 show the water in the canal to be below state standards. The low DO levels found in the canal are primarily due to the rotting weeds although the nutrients leaching from the surrounding yards also contribute to those low levels. The area outside the canal is better able to diffuse and absorb the wrack problem than the area inside the carnal. Accumulations of wrack outside the canal are more temporary and therefore produce less navigational difficulty and less deterioration of water quality. The navigational problems caused by weeds choking the canal range from difficulty in steering to poor visibility. The decaying wrack also causes growth on boat bottoms, can damage boat cooling systems, and turns the water in the canal red. The amount of wrack entering the canal and accumulating there has been increasing over the last five years. The proposed structure will stop wrack from entering the canal and will function as a weedgate. The design of the gate will not cause any navigational hazards, although the weedgate should have navigational aids to assure safety. Although the weedgate will not improve water quality in the canal so as to meet state standards, it will result in an improvement. DER has no jurisdiction to resolve property disputes. The proposed weedgate is to be placed in front of the canal with no on-land attachments, and Respondent Voorhees has given reasonable assurances that the proposed gate is not on privately owned property. The proposed structure will be placed in Class III Outstanding Florida Waters. DER has balanced the positive public interest effects that will accrue to the owners of property along the canal against the' negative public interest effects that may accrue to owners of property at the mouth of the canal. Respondent Voorhees has given reasonable assurances that the project will be clearly in the public interest. Respondent Voorhees has given reasonable assurances that the proposed project will meet all applicable DER rules and standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered (1), granting Respondent Voorhees' permit application and (2), authorizing the issuance of a permit subject to all permit conditions contained in the Department's letter of Intent to Issue the permit and also including the condition that no trespassing occur on the property at the mouth of the canal attendant to either the construction or the maintenance of the weedgate and associated fences. DONE and RECOMMENDED this 17th day of February, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0599, 86-0600, 86-0601, 86-0954, and 86-0955 l. Respondent Department of Environmental Regulation's proposed findings of fact numbered 1-5, 9, 10, 12-15, 17-20, the first and last sentences of 21, 23, 28, and 29 have been adopted in this Recommended Order either verbatim or in substance. The remainder of the Department's proposed findings have been rejected as follows: 6-8, 11 and 16, as being unnecessary for determination herein; the remainder of 21 and 22 as being immaterial to the issues herein; and 24-27 as being subordinate. 2. Respondent Voorhees' proposed findings of fact numbered l, 3, 8, and 13 have been adopted in this Recommended Order. The remainder of Voorhees' proposed findings of fact have been rejected as follows: 2 and 16 as being subordinate; 9 and 10 as being unnecessary; and 11, 12, 14 and 15 as not being supported by the evidence in this cause. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John H. Voorhees Route 1, Box 612 F Big Pine Key, Florida 33043 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Dale Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
