The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of August, 2006.
Findings Of Fact Malcolm McCoy, for nearly 10 years prior to December 19, 1989, was employed by the City of Clearwater in the Gas Division. He was a permanent employee and covered by City of Clearwater's civil service rules and regulations. At the time of his dismissal on December 19, 1989, he served as a crew leader. In June, 1989, McCoy was arrested for possession and sale of cocaine. He was subsequently suspended without pay for five days by the City and awarded 60 disciplinary points (Exhibit 2), and on October 31, 1981, a court order was entered, which shows McCoy pleaded guilty in the Circuit Court in and for Pinellas County to sale or delivery of cocaine and possession of cocaine. Adjudication of guilt and imposition of sentence was withheld, and McCoy was placed on probation for two years (Exhibit 1). On September 11, 1989, McCoy received a letter by certified mail from the City advising him that he had accumulated 60 disciplinary points as a result of the cocaine incident and that any further disciplinary action within a two- year time frame may be grounds for his dismissal (Exhibit 3). On or about November 15, 1989, McCoy removed some City-owned dried out and dead sod from City property, loaded it onto a City vehicle, transported this sod to his address, and, with the help of his assistant, placed this sod in his yard. This occurred during regular working hours. Enroute to McCoy's residence with the sod on the vehicle, McCoy's assistant suggested to McCoy that it was wrong to take this sod to McCoy's property. Nevertheless, at McCoy's direction, the assistant helped McCoy unload the sod from the City truck and place it on McCoy's property. McCoy's stated purpose for placing the sod in his yard was to help arrest erosion on his property. An anonymous phone call reported this fact, the investigation confirmed, and McCoy admitted that he took the sod which was worthless as sod and placed it on his property. McCoy did not feel he had misappropriate City property; only that he had saved the City the expense of disposing of the dead sod.
Recommendation It is recommended that the dismissal of Malcolm McCoy as a civil service employee of the City of Clearwater be affirmed and McCoy's appeal be dismissed. ENTERED this 4th day of April, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Office 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 4th day of April, 1990. COPIES FURNISHED: Miles Lance, Esquire Post Office Box 4748 Clearwater, FL 33418-4748 Malcolm McCoy 1323 Tioga Avenue Clearwater, FL 34616
The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
The Issue Whether Irene Lieberman is entitled to attorney fees and costs from Lorenzar Brown, as provided in Section 112.317(8), Florida Statutes, and if so, the amount.
Findings Of Fact At all times relevant to this proceeding, Ilene Lieberman (Lieberman) served as mayor of the City of Lauderhill, Florida (City). The City and Broward County entered into an agreement (Grant) in January, 1992, for a Self-Help Home Ownership and Repair Program in the amount of $117,500, which provided for funding and administration of Community Development Block Grant (CDBG) projects. Pursuant to the Grant, the City would be reimbursed for allowable project expenses. On July 13, 1992, the City Commission passed Ordinance No. 92-161, which approved budget adjustment BA 92-86 for the transfer of $123,000 from various budget accounts to establish the budget for the CDBG program. When entering the CDBG budget into the City's computer system, the data entry operator made some coding errors. Budget adjustment BA-92-86 showed that $22,500 was to be budgeted for account number 3110. However, when it was keyed into the computer system, the $22,500 was coded to account number 3121, which was the account for the City Attorney's hourly charges. No funds were entered as budgeted for account number 3110. Budget adjustment BA-92-86 showed that $25,000 was to be budgeted for account number 3122. However, when keying the entry, the data entry operator entered $25,500 instead of the $25,000. Lorenzar Brown (Brown), the Respondent, obtained a copy of the City Expenditure Status Report for July, 1992 (July Expenditure Report). The report reflected the errors that were made when the budget information was placed in the computer system. The report indicated that there were no expenditures made from account number 3121, the account for the City Attorney hourly charges. In July or August, 1992, Brown talked to Marcia Berkely, who was the City Planner, concerning whether CDBG funds were being used to pay City Attorney fees. Ms. Berkely advised Brown that the CDBG funds were not being used to pay the City Attorney. Brown did not show Ms. Berkely the July Expenditure Report. On August 31, 1992, Brown made a presentation to the City Commission, expressing his "concerns about the present taxpayer's dollars being expended to pay fees to the city attorney of the City of Lauderhill." Brown referenced the City's July Expenditure Report, stating, "In reviewing the monthly expenditure report for July, there was a number of other accounts budgeted to the city attorney." In particular Brown was concerned about CDBG funds being used for City Attorney's fees. Brown stated: This last month an additional $40,000.00 of Community Development Block Grant was recom- mended by the Mayor and approved by the City Commission to be used for city attorney fees. This also passed by the Ordinance 92-161. The community, especially the taxpayers, request that the City Commission look into or investigate the action of the Mayor, on the part of the Mayor in recommending that the City Commission use Block Grant Funds for the city attorney fees contrary to the contract approved by the Commission by Resolution 91-83 which was passed on July 13th, 1992. Brown's presentation was made during the communications from the public portion of the City Commission meeting. According to the policy of the City Commission, the Mayor and City Commission members are not allowed to respond to comments made during this portion of the meeting. Comments from the public officials are made during communications from the public officials portion of the meeting. Lieberman asked the Vice Chair of the City Commission to allow her to respond to Brown's presentation immediately after Brown concluded but she was not allowed to do so. Brown was unable to stay for the comments from the public officials because he had to pick up his daughter. He apologized to the Commission and told them that he had to leave. During the comments from public officials, Lieberman explained the purpose of the Community Development Block Grant Program. She stated that $40,000 was not used for City Attorney fees but that the CDBG budget did include a line item for "legal matters that are incident to home ownership." She invited the public to spend time with her and Marcia Berkely to discuss the attorney fees issue. By memorandum dated September 8, 1992, Brown advised the City Commission that he had not received a response from the Mayor's office concerning his request made on August 31, 1992, that the City Commission "investigate the propriety of the Mayor's office in recommending that the City Commission use BLOCK GRANT FUNDS for the City's Attorney fees. (92-161)." Brown did not reference the July Expenditure Report. By letter dated September 16, 1992, Richard J. Kaplan (Kaplan), Commission Vice Chair, advised Brown that the Mayor had responded to Brown's comments at the City Commission meeting on August 31, 1992, and attached a copy of the minutes of the meeting. Kaplan additionally told Brown that he had checked the ordinances cited by Brown and found that one was in error. By memorandum dated September 16, 1992, Kaplan forwarded a copy of Brown's September 8 correspondence to Lieberman and requested that she respond to Brown in writing. By letter to Kaplan dated September 21, 1992, Brown stated that he had reviewed the ordinances and the information submitted to Kaplan, that they were correct and that if the City Commission failed to investigate his allegations, that "the concern (sic) residents of Lauderhill will be compelled to file a complaint with the Ethics Commission and or the Bar Association." Brown did not reference the July Expenditure Report. Lieberman responded to Brown by letter dated September 29, 1992. She attached a copy of the budget for the CDBG program, budget adjustment request BA 92-86, Ordinance 92-161, and a portion of the transcript of the August 31, 1992, City Commission meeting. She advised that there had been no misappropriation of City funds and that according to the budget adjustment $5,500 was coming from the City Attorney's budget to the CDBG budget as matching funds from the City for the program. The budget adjustment contained a $25,000 line item for legal services for closing costs, and included the $5,500 from the City Attorney's budget. She invited Brown to contact her directly if he had any further questions. She did not review the July Expenditure Report in the preparation of her response. Brown never contacted Lieberman after the August 31 City Commission meeting to resolve any questions that he may have had. Based on prior dealings with her, he felt that she made him feel small and little and that she embarrassed and belittled him at City Commission meetings; therefore he did not feel comfortable directly asking her questions concerning the attorney fees issue. Brown never asked anyone in the City's finance department, including Donald Giancoli, the Director of Finance, Assistant City Administrator for the City, to explain the differences between budget adjustment 92-86 and the July Expenditure Report. On October 3, 1992, Brown executed Commission on Ethics Complaint No. 92-157 against Lieberman, alleging that she had violated Section 112.313(6), Florida Statutes, in that she "breached the public trust by solicitation in recommending that the City Commission Board use Community Block Grant funds for the City Attorney fees." On November 12, 1992, Brown executed an amendment to Complaint No. 92-157, enclosing additional information, which included a copy of the July Expenditure Report. Prior to filing the Complaint, Brown spoke with Theresa Gillis, the Director of the Community Development Division of Broward County. She administered the Community Development Block Grant Programs for the County including the Grant to the City of Lauderhill. He told her that the City had violated the terms of the Grant by getting reimbursed for attorney's fees. He did not reference the July Expenditure Report. Ms. Gillis checked the reimbursements made to the City and found that the City had not violated their obligations under the CDBG Program. If she had been aware of the July Expenditure Report showing funds being budgeted to the City Attorney account, she would have been concerned and asked the City for an explanation. On December 7, 1992, the Executive Director of the Florida Commission on Ethics issued a Recommendation of Legal Insufficiency, stating that the allegations in Complaint No. 92-157 were legally insufficient to indicate a possible violation of Section 112.313(6), Florida Statutes. On February 2, 1993, the Chairman of the Commission on Ethics filed a Public Report and Order Dismissing Complaint, stating that on January 28, 1993, the Commission on Ethics voted to adopt the Executive Director's legal sufficiency analysis and to dismiss Complaint No. 92-157. On January 19, 1993, Brown filed a complaint with The Florida Bar against Lieberman. The complaint stemmed from remarks Lieberman made at a December 7, 1992 City Commission meeting. The Florida Bar declined to pursue the matter, determining that his complaint did not reveal any violations of the Rules Regulating Attorneys. On February 18, 1993, Brown filed a lawsuit against Lieberman, alleging that she had defamed him in the December 7, 1992 meeting. During the January 25, 1993, City Commission meeting, Brown publicly stated that he would personally support a recall petition against Lieberman. He took this position due to Lieberman's comments against him at the December 7, 1992, meeting. Around the time that Lieberman first became mayor in 1988, she and Brown had some discusssions concerning a citation which he had received from the code enforcement board for failure to pay for garbage service at his premises. Brown was very angry and accused Lieberman of violating his constitutional rights. At a City Commission meeting in approximately September, 1992 while Lieberman was responding to a question, Brown told the gentleman seated next to him that she was lying. Brown's voice was loud enough that it was heard twenty feet away by Richard Korte, the Director for Code Enforcement for the City. After Brown filed the complaint against Lieberman, City Attorney Richard Michelson represented Lieberman as Mayor in his role as City Attorney. The City paid for these services out of the City Attorney's monthly $3,500 retainer. The total number of hours provided by the City Attorney relating to Brown's complaint and the instant fee proceeding was 23.1 hours. After Brown's complaint was dismissed, Samuel Goren was retained to represent the Mayor. Mr. Goren filed the instant fee petition. The total number of hours for Mr. Goren's law firm was 16.2 hours. After the fee petition was filed, Stuart Michelson (no relation to Richard Michelson) was retained to represent the Mayor. The total number of hours for Stuart Michelson through November 18, 1993 was 33.675. The total number of hours spent in hearing by Stuart Michelson was 17.5 hours, which included closing argument by telephone conference. Stuart Michelson spent one hour in taking the deposition of Thomas Bradley. Stuart Michelson's law clerk provided 5.45 hours of services. Each of the attorneys providing services in representing Lieberman in the complaint by Brown and in the fee petition charged the City at $125 per hour. The services of the law clerk were billed at $50 per hour. The City paid for the services provided through November 18, 1993. Jeffery Pheterson, who was qualified as an expert on attorney's fees issues, opined that based on the rates customarily charged locally the rate of $125 per hour is a modest, reasonable rate for the services provided by the attorneys. He also opined that the rate of $50 per hour for paralegal services was also a reasonable rate for the services provided. At the final hearing, counsel for Brown stipulated that the rates for Stuart Michelson and Samuel Goren were reasonable. The rates of $125 per hour for attorney services and $50 for paralegal services are reasonable rates for similar services in the community. Mr. Pheterson opined that the 23.1 hours of service provided by Richard Michelson, City Attorney, the 16.2 hours of service provided by Samuel Goren's firm, the 33.675 hours provided by Stuart Michelson and the 5.45 hours provided by Stuart Michelson's law clerk were reasonable. The hours of service provided by the above attorneys and law clerk through November 18, 1993, were reasonable. Additionally, the 17.5 hours spent by Stuart Michelson at the final hearing is reasonable and the one hour spent in taking the deposition of Thomas Bradley was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Ilene Lieberman's Verified Petition for Attorney's Fees and Costs. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1180EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent Lieberman's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Accepted. Paragraphs 3-25: Accepted in substance. Paragraph 26: Rejected as subordinate to the facts actually found. Paragraphs 27-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts actually found. Paragraph 31-33: Accepted in substance. Paragraphs 34-35: Rejected as constituting argument. Paragraphs 36-37 Accepted in substance. 10 Paragraph 38: Rejected as constituting argument. Paragraphs 39-40: Rejected as constituting recitation of testimony. Paragraph 41: Rejected as constituting argument. Paragraph 42: Rejected as subordinate to the facts actually found. Paragraph 43: Rejected as constituting recitation of testimony. Paragraph 44: Accepted in substance. Paragraph 45: Rejected as subordinate to the facts actually found. Paragraphs 46-47: Accepted in substance. Paragraph 48: The first sentence is rejected as not supported by the greater weight of the evidence. The second sentence is accepted to the extent that he filed the complaint because his concerns were not answered but rejected to the extent that it states that he filed the complaint a day or two after he received Lieberman's letter. Paragraph 49: Rejected as not supported by the greater weight of the evidence. Brown knew that the July Expenditure Report showed funds being budgeted from the CDBG program to the City Attorney. The second sentence is rejected as subordinate to the facts actually found. Paragraphs 50-51: Rejected as subordinate to the facts actually found. Paragraphs 52-55: Accepted in substance. Paragraph 56: Accepted in substance to the extent that Brown never told Lieberman personally that the expenditure report showed money going to the City Attorney, but rejected to the extent that he never referenced the expenditure report in her presence because he did at the August 31, 1992, City Commission meeting. Paragraph 57: Rejected as subordinate to the facts actually found. Paragraph 58: Rejected as cumulative. Paragraphs 59-69: Accepted in substance. Paragraphs 70-71: Rejected as constituting argument. Paragraphs 72-73: Rejected as mere recitation of testimony. Paragraphs 74-75: Accepted in substance. Paragraphs 76-77: Rejected as mere recitation of testimony. Paragraph 78: Accepted in substance to the extent that he refers to the ordinance but not as to the expenditure report. Lieberman did not address the expenditure report which Brown referenced in the August 31 meeting. Paragraph 79: Rejected as subordinate to the facts actually found. Paragraphs 80-81: Accepted in substance. Paragraphs 82-88: Rejected as constituting argument. Paragraph 89: Rejected as subordinate to the facts actually found. Paragraphs 90-92: Rejected as constituting argument. Paragraph 93: Accepted in substance to the extent that there was a posting error. Paragraphs 94-95: Rejected as constituting argument. Paragraph 96: Accepted in substance. Paragraph 97: Rejected as not supported by the greater weight of the evidence. Paragraph 98: Accepted in substance. Paragraph 99: Rejected as subordinate to the facts actually found. Paragraphs 100-102: Rejected as constituting argument. Complainant Brown's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: The first sentence is accepted in substance. The second sentence is accepted to the extent that the responses did not make any reference to the July Expenditure Report which Brown brought up during his presentation at the August 31, 1992, City Commission meeting. The third sentence is accepted in substance to the extent that Brown let Kaplan know that he was not satisfied with the responses. Paragraphs 5-6: Rejected as subordinate to the facts actually found. Paragraph 7: The first sentence is accepted to the extent that Brown had a copy of the Expenditure Status Report prior to the August 31, 1992, City Commission meeting and rejected as not supported by the greater weight of the evidence that Brown received the document from the City's finance department. The evidence is not clear how Brown received the document. The last sentence is accepted in substance. Paragraphs 8-10: Accepted in substance. Paragraph 11: The first and third sentences are accepted in substance. The second sentence is accepted in substance except that the July Expenditure Report was not attached to the original complaint but to an amendment to the complaint. Paragraph 12: Accepted in substance to the extent that Lieberman personally did not expend funds or was obligated to pay the attorney's fees. Paragraph 13: Rejected to the extent that his services were included in his retainer fee. Paragraph 14: Accepted in substance. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Anthony J. Titone, Esquire 7471 West Oakland Park Blvd., Suite 110 Ft. Lauderdale, Florida 33319 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue Whether Petitioner is entitled to licensure as a Class "D" Security Officer.
Findings Of Fact Respondent is the agency of the State of Florida responsible for the administration of Chapter 493, Florida Statutes, including the licensure of Class "D" Security Officers. Petitioner applied for licensure as a Class "D" Security Officer. Pending the processing of that application, Petitioner became employed as a security guard for approximately five months. By letter dated February 21, 1996, Petitioner was notified by Respondent that his application for a Class "D" license was, subject to his due process rights, going to be denied based on his conviction of battery in St. Lucie County in September 1993. Respondent asserted that the conviction was of a crime directly related to the business for which the license is sought within the meaning of Section 493.6118(1)(c), Florida Statutes. Respondent also asserted that the facts relating to that conviction establish that Petitioner had committed an act of violence or used force on another person which was not for the lawful protection of himself or another within the meaning of Section 493.6118(1)(j), Florida Statutes. On September 14, 1993, Petitioner was convicted by a jury of a misdemeanor count of battery. The victim of the battery was Thomas Coburn. Petitioner was adjudicated guilty and sentenced to 15 days in the county jail, one year probation, and 50 hours of community service. At all times pertinent to this proceeding, Thomas Coburn was employed by the City of Port St. Lucie, Florida, as a city code enforcement officer. The code enforcement division is administered by the City of Port St. Lucie Police Department. Mr. Coburn was not a sworn law enforcement officer. On Sunday, May 16, 1993, Mr. Coburn was acting in his official capacity as a city code enforcement officer. He was wearing a badge, name plate, and collar pins with the initials P.S.L. He was in an official uniform that had patches with the inscription "Port St. Lucie, Fla. Police." He was driving a marked vehicle that reflected he was with the city code enforcement department. Shortly after noon on May 16, 1993, Mr. Coburn went to the personal residence of the Petitioner for the purpose of serving upon Petitioner a notice to appear pertaining to several alleged code violations. Petitioner was home with his wife, his teenage stepson, and his five year old son. When Mr. Coburn arrived, Petitioner was about to begin a barbecue. When the stepson came to the door in response to Mr. Coburn knock on the door, Mr. Coburn asked to speak to Petitioner. The teenage stepson went inside to get the Petitioner. Mr. Coburn did not see the stepson or another member of Petitioner's family after the Petitioner came to the door. When Petitioner came to the door, Mr. Coburn identified himself as a code enforcement officer and told Petitioner he was there to deliver the notice to appear. Mr. Coburn's vehicle was parked on the street so that Petitioner could see the markings on the vehicle. Petitioner became irate and shouted profanities at Mr. Coburn. Petitioner told Mr. Coburn that he could not serve official papers on a Sunday and ordered him off his property. There is a conflict in the evidence as to what next occurred. Petitioner testified that Mr. Coburn bumped him in the chest as the two of them argued. Mr. Coburn testified that he backed away from Petitioner and began to leave the premises. The more credible version of the events is that given by Mr. Coburn. Consequently, it is found that there was no physical contact initiated by Mr. Coburn. As he was backing away and preparing to leave the premises, Mr. Coburn placed the notice to appear on the barbecue grill that was in the area where the two men were standing. After he placed the notice to appear on the barbecue grill, Mr. Coburn turned to walk away. Petitioner then kicked Mr. Coburn in the buttocks. It was Petitioner's act of kicking Mr. Coburn that resulted in his subsequent arrest and conviction. There was no one else in the area around Petitioner's front door at the time of this incident. There was insufficient evidence to establish that Petitioner was acting in defense of himself or of others when he kicked Mr. Coburn. Petitioner has not been convicted of any other crime. At the times pertinent to this proceeding, Petitioner was an approved process server within the Nineteenth Judicial Circuit of Florida. Petitioner worked as a security guard for the five months preceding the denial of his application. There were no incidents of violence during that five month period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order deny Petitioner's application for a Class "D" license. DONE AND ENTERED this 11th day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996. COPIES FURNISHED: Michele Guy, Esquire Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Edward B. Galante, Esquire 789 South Federal Highway, No. 103 Stuart, Florida 34994 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
Findings Of Fact At all times pertinent to the allegations involved herein, Respondent, Ezekiel Taylor was employed as a tree trimmer by the Department of Parks and Recreation, City of Clearwater. By Stipulation, Respondent agreed, and it is so found, that on March 7, 1988, contra to the provisions of a policy letter dated January 11, 1985, from Ream Wilson, Director of Parks and Recreation for the City of Clearwater, dealing with the use of city vehicles, Respondent, while operating a City owned vehicle with his tree trimming crew, made an unauthorized stop at the Charter Food Store located at Gulf-to-Bay Boulevard and Duncan, at approximately 8:00 a.m. According to the terms of the policy letter, with which Respondent was familiar, "1) Operators of City Vehicles shall not stop at convenience stores, donut shops, restaurants, etc., for food or drink while in [sic] route to their sites at the beginning of their work shift." The terms of this policy letter have been made a part of Rule 14(c), Civil Service Rules and Regulation of the City of Clearwater, the violation of which subjects an offender to disciplinary action. Respondent admittedly stopped at a convenience store on the morning in question, as alleged, to get a cup of coffee to take with him. He was in the store a very short time. Nonetheless, his actions constituted a violation. Disciplinary guidelines for the City are set out in Guidelines For Disciplinary Action, for the City, (Revisions effective 05/23/86) and are broken down into four categories, Level 1 through Level 5 in ascending order of severity . The guidelines provide that: "In each level and for each infraction con- sideration will be given to the severity of the offense, the actual potential cost or damage involved, time interval between infractions, the length and quality of service records and any other pertinent matters." The infraction in question was classified as a Level 3 offense. Under the terms of the Guidelines, Level 3 offenses (here item 16) calls for a "One to Two Day Suspension" for a first offense, a "Three to Five Day Suspension" for a second offense, and "Discharge" for a third offense. The infraction was reported up to Mr. Wilson who evaluated the matter in light of Respondent's work record and prior disciplinary record, and who concluded a one day suspension without pay was appropriate. Mr. Wilson considered the fact that Respondent had worked for the city for 15 years and was a good worker. He also considered Respondent's four prior written disciplinary actions including: 12/30/87 - a written counselling for allowing a city-owned chain saw in his custody to be stolen, 7/10/87 - a written reprimand for sitting in a city truck, while not on break or lunch, 6/11/87 - a written reprimand for care- lessly damaging city property, and 8/21/86 - a written reprimand for care- lessly damaging city property. The above personnel actions were taken from the records of the Division of Parks and Recreation, not the Respondent's official personnel records with the City. Consequently, it cannot be determined if the prior actions were finalized properly and made a part of Respondent's official record. Mr. Ream did not consider the several complimentary notes of appreciation forwarded to Respondent by his supervisor indicating calls by citizens of the city who were pleased with Respondent's work. Again, there was no indication that these notes, admitted by Respondent without objection by the City Attorney, were in Respondent's files or that Mr. Wilson had notice of them. Respondent's immediate supervisor, Mr. Gill, however, indicated Respondent is one of his best employees when it comes to doing his work. He has always been honest and his decisions are usually good. He requires no more supervision than the rest of the workers. Mr. Ream's rationale for imposing the punishment he chose was that Respondent was a group leader who was expected to set the proper example for his crew, and who would have been expected to report any violations he observed. He considered Respondent's 15 years with the city and the fact he had been notified four times previously of substandard behavior. Though no suspension had ever been imposed before, if one had been imposed, this time the action would have been more severe. Respondent was not treated any more drastically than any other city employee guilty of a Level 3 offense. The city looks at this as an unauthorized additional break which, as a matter of community relations, must be curtailed. Though Respondent raised some inference of lesser action being the rule in other city departments, no evidence of such was forthcoming and in any case, so long as the action taken in this case was within the limits authorized, was justified, and was not an abuse of agency action, evidence of other actions in other departments would be irrelevant. The guidelines described above are not mandatory actions but merely suggested actions, and the city officials have consistently tried to stick with them to avoid the unfair application of punishment. That they have been successful is established by the testimony of Mr. George, who, in his many years with the city, cannot recall anyone ever receiving less punishment for the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that The one day suspension without pay imposed by the City of Clearwater on Respondent Ezekiel, be sustained. RECOMMENDED in Tallahassee, Florida, this 5th day of July, 1988. ARNOLD H. POLLOCK 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 5th day of July, 1988. COPIES FURNISHED: Miles A. Lance, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Ezekiel Taylor 1466 Lemon Street Clearwater, Florida 34616
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. ‘THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-126 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this day of , 2011. \s Paula Ford Agency Clerk By U.S. Mail The Honorable David M. Maloney Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Brad E. Kelsky, Esquire 10189 Cleary Boulevard Plantation, Florida 33324 bradkelsky@kelskylaw.com Cari L. Roth, Esquire Suzanne Van Wyk, Esquire Bryant Miller & Olive P.A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 croth@bmolaw.com svanwyk@bmolaw.com Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler White Boggs, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, Florida 32302-1240 lshelley@fowlerwhite.com kbrodeen@fowlerwhite.com Derek Rooney, Esquire Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948 Derek .Rooney@charlottefl.com Robert H. Berntsson, Esquire FINAL ORDER NO. DCA 11-GM-126 McKinley, Ittersagen, Gunderson & Berntsson, P.A. 18401 Murdock Circle Port Charlotte, Florida 33948 rberntsson@bigwlaw.com Lynette Norr Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us
