The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on April 27, 2018, and on May 3, 4, 8, 9, 12, 16, 17, 24, and 31, 2018, as charged in the agency action letter dated June 22, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. Mr. Boyd has worked for ECUA since at least November of 1997 and acknowledged on June 25, 2012, that a copy of the Manual was available to him. During all times relevant to the instant case, Mr. Boyd was assigned to ECUA’s patch services division (“patch crew”). A significant part of the patch crew’s work involves filling holes left after other ECUA employees have performed utility work. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break and two 15-minute breaks. In addition to his employment with ECUA, Mr. Boyd owns an automobile mechanic shop in Pensacola, Florida, known as Boyd’s Motorsports. An anonymous e-mail to Gerry Piscopo, ECUA’s Deputy Executive Director of Maintenance and Construction, alleged that the patch crew was leaving work early and incurring overtime by intentionally being lackadaisical in completing work assignments. As a result, ECUA initiated an investigation of the patch crew’s daily activities. ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their daily activities. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Mr. Willette’s work was facilitated by global positioning devices (“GPS”) that ECUA installed on every truck utilized by the patch crew. The GPS devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. Findings Regarding the Allegations from April 27, 2018 Mr. Boyd filed a “Daily Overtime Report” noting that he worked from 3:30 p.m. to 8:30 p.m. on April 27, 2018. Because the patch crew’s workday normally ends at 3:30 p.m., Mr. Boyd claimed five hours of overtime. Mr. Willette was following Mr. Boyd that night and observed him arriving at Boyd’s Motorsports in an ECUA truck at 7:38 p.m. Mr. Boyd left Boyd’s Motorsports at 8:02 p.m. Soon afterward, Mr. Willette lost visual contact with the ECUA truck driven by Mr. Boyd and was unable to follow Mr. Boyd to his next destination.2/ Mr. Boyd testified that he was preparing for the next day’s work assignments when he arrived at Boyd’s Motorsports that evening. According to Mr. Boyd, he and other ECUA employees would freely use resources available at Boyd’s Motorsports in order to further ECUA work. Mr. Boyd also testified that he was either: (a) in route to address a customer complaint when he left Boyd’s Motorsports at 8:02 p.m.; or (b) driving the ECUA truck to his home because he had been ordered to proceed directly to a particular worksite the next morning. Mr. Boyd’s testimony about the extent to which he and other ECUA employees freely utilized the resources of Boyd’s Motorsports to facilitate ECUA work lacked credibility.3/ As a result, the preponderance of the evidence demonstrates that Mr. Boyd was not working on ECUA business when he stopped at Boyd’s Motorsports from 7:38 p.m. to 8:02 p.m. on April 27, 2018. Therefore, Mr. Boyd erroneously reported working five hours of overtime that day. Findings Regarding the Allegations from May 3 and 4, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 8.5 hours of overtime from 3:30 p.m. to 12:00 a.m. on May 3, 2018. He filed another “Daily Overtime Report” indicating he worked seven hours of overtime from 12:00 a.m. to 7:00 a.m. on May 4, 2018. The majority of the claimed overtime pertained to an assignment on Cervantes Street in downtown Pensacola involving a sewer system repair. Another crew led by Michael Killen was responsible for performing the primary repair work, and the patch crew was to move in after Mr. Killen’s crew had completed its work. Mr. Killen’s crew arrived at the worksite at 7:00 p.m. on May 3, 2018, and finished its work at 3:30 a.m. Even though Mr. Killen’s crew was still working, the patch crew arrived onsite several hours prior to Mr. Killen’s crew completing its work. While the patch crew provided whatever assistance it could during that downtime, it spent most of that time waiting for Mr. Killen’s crew to leave. When Mr. Killen’s crew left at 3:30 a.m., the patch crew began actively working. Given that the worksite was in downtown Pensacola, it is reasonable to infer that the work needed to be completed as quickly as possible. Therefore, it was not unreasonable for the patch crew to be onsite and ready to immediately begin its work.4/ In addition, the testimony indicated this was a complex assignment for all concerned and that the patch crew may have provided valuable assistance to Mr. Killen’s crew. The preponderance of the evidence does not demonstrate that Mr. Boyd erroneously reported the overtime he worked on May 3 and 4, 2018. Findings Regarding the Allegations from May 8, 2018 On May 8, 2018, Mr. Willette observed Mr. Boyd and a coworker driving an ECUA truck with several bags of concrete to Boyd’s Motorsports. Mr. Willette shot video of Mr. Boyd and his son Tony loading the concrete bags onto a pickup truck driven by Tony Boyd. Mr. Boyd testified that the concrete had to be disposed of because the bags had become wet and the concrete inside was ruined. Rather than using the ECUA truck to transport the concrete to a landfill or some other disposal area, Mr. Boyd had his son, who was not an ECUA employee, dispose of the concrete. As for why he did not use the ECUA truck to take the concrete directly to a disposal area, Mr. Boyd explained it would have been too time consuming given the locations of the patch crew’s work assignments that morning. Multiple aspects of Mr. Boyd’s testimony lacked credibility: (a) that ECUA routinely allowed concrete to become ruined through exposure to moisture; (b) that Mr. Boyd enlisted someone not employed by ECUA to dispose of ECUA property; (c) that Mr. Boyd did not need authorization in order to dispose of the concrete; and (d) that Mr. Boyd was concerned about spending an excessive amount of time in transit from a landfill to a worksite. The preponderance of the evidence demonstrates Mr. Boyd did not have authorization to take the concrete. Mr. Willette also observed Mr. Boyd driving the same ECUA truck to a CVS pharmacy and spending 16 minutes there on May 8, 2018. While Mr. Boyd had no business purpose for stopping at the pharmacy, it is certainly possible that this stop occurred during one of his authorized 15-minute breaks or that it was a bathroom stop.5/ The preponderance of the evidence does not demonstrate that Mr. Boyd violated any Manual provisions when he stopped at a pharmacy on May 8, 2018. Findings Regarding the Allegations from May 9, 2018 Mr. Boyd filed a “Daily Overtime Report” indicating he worked 2.5 hours of overtime on May 9, 2018. However, ECUA did not present any exhibits to substantiate its allegation that Mr. Boyd left work at 5:49 p.m. The preponderance of the evidence does not demonstrate that Mr. Boyd filed an erroneous timesheet on May 9, 2018. Findings Regarding the Allegations from May 12, 2018 On May 12, 2018, Mr. Willette began following Mr. Boyd at 9:08 a.m. After completing an assignment on East Chase Street, Mr. Boyd testified that he worked on three other assignments on Creighton Road, Spanish Trail, and Davis Highway before finishing his workday at 3:05 p.m. Mr. Willette testified that he did not see Mr. Boyd performing any meaningful work on Creighton Road, Spanish Trail, and Davis Highway. The relevant GPS report indicates the ECUA truck utilized by Mr. Boyd that day was idling when no work was being performed. Because Mr. Willette’s testimony was more credible, the preponderance of the evidence demonstrates that Mr. Boyd did no work after leaving East Chase Street on May 9, 2018. Findings Regarding the Allegations from May 16, 2018 Mr. Boyd’s timesheet for May 16, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd on May 16, 2018. He observed Mr. Boyd and a coworker leaving ECUA that morning and driving directly to Dodge’s Chicken Store. Mr. Boyd remained inside the store for a few minutes and left appearing to be carrying two food items. Mr. Willette observed Mr. Boyd having lunch with an unidentified female from 11:30 a.m. until 12:16 p.m. Mr. Boyd drove his personal vehicle from ECUA property at 3:15 p.m. and arrived at a J.C. Penny’s store at approximately 3:29 p.m. Mr. Boyd drove away from the store at approximately 3:33 p.m. with another unidentified female. The preponderance of the evidence demonstrates that Mr. Boyd did not work eight hours on May 16, 2018. The stop at Dodge’s Chicken Store could have been one of Mr. Boyd’s 15-minute breaks. However, as noted above, patch crew members have a 30-minute lunch break, and Mr. Boyd spent 46 minutes at lunch that day. Also, while a patch crew member’s day usually ends at 3:30 p.m., Mr. Boyd left work at 3:15 p.m. Findings Regarding the Allegations from May 17, 2018 Mr. Boyd’s timesheet for May 17, 2018, indicates he arrived at work at 7:00 a.m. and left at 3:30 p.m. It also indicates he worked eight hours that day. Mr. Willette surveilled Mr. Boyd that day and observed him leaving Baptist Hospital at 8:11 a.m. following a medical appointment. Mr. Boyd then proceeded to Boyd’s Motorsports. The preponderance of the evidence demonstrates that Mr. Boyd’s May 17, 2018, timesheet is inaccurate. He was not continuously working from 7:00 a.m. to 3:30 p.m. on May 17, 2018. Findings Regarding the Allegations from May 24, 2018 Mr. Boyd’s timesheet for May 24, 2018, indicates he reported to work at 6:57 a.m. and left work at 3:30 p.m. It also indicates he worked eight hours that day. Therefore, his time entries indicate he took a standard 30-minute lunch break that day. Mr. Willette observed Mr. Boyd and a coworker meeting a third man for lunch at Miller’s Ale House at 11:08 a.m. that day. The trio left the restaurant at 12:17 p.m. Mr. Boyd testified that the third man was an ECUA supervisor and that work was discussed over lunch. Even if that assertion is accurate, there is no dispute that Mr. Boyd’s lunch on May 24, 2018, exceeded 30 minutes. The preponderance of the evidence demonstrates that Mr. Boyd’s May 24, 2018, timesheet is inaccurate. Findings Regarding the Allegations from May 31, 2018 Mr. Boyd’s timesheet for May 31, 2018, indicates he arrived at work at 6:57 a.m. and left at 3:30 p.m. Mr. Willette photographed Mr. Boyd driving his personal vehicle from ECUA property at 7:10 a.m. A coworker picked up Mr. Boyd at Boyd’s Motorsports approximately two hours later. The preponderance of the evidence indicates that Mr. Boyd’s May 31, 2018, timesheet is inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Robert D. Boyd, Sr., violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (17), leaving a work station without authorization; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; Section B-13 A (27), theft or stealing; Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law; and Section B-37, vehicle and equipment idle reduction. DONE AND ENTERED this 21st day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2018.
The Issue The issues are whether Respondent violated Sections 489.129(1)(i), (l), (m) and (o); 489.119(2); 489.1195(1)(a); and 489.1425(1), Florida Statutes, for the reasons stated in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Petitioner is the state agency responsible for regulating the practice of contracting in the State of Florida. At all times material hereto, Respondent was licensed as a certified general contractor in the state, pursuant to license number CG C008922. Respondent's license is currently inactive. Respondent has been a contractor for nearly 30 years, and has never been subject to disciplinary action against his license until this proceeding. Respondent was licensed as the licensed qualifying agent for ECE from January 1998 through February 2001, for a fee of $400.00 per month. As the qualifying agent, Respondent was responsible for all of ECE's contracting activities, in accordance with Section 489.1195(1)(a), Florida Statutes, which states: "All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job." Respondent did not obtain a certificate of authority for ECE. On November 16, 1998, ECE entered into a contract in the amount of $15,577.00 with Carl and Darlene Weinzierl to install aluminum siding at their residence in Terra Ceia, Florida. The contract specified that ECE would use Reynolds brand siding in the construction. ECE actually used an inferior grade of aluminum siding. The contract did not contain a notice explaining to the Weinzierls their rights under the Construction Industry Recovery Fund. Such notice is required by Section 489.1425, Florida Statutes. ECE represented to the Weinzierls that they would receive a mortgage to pay for the aluminum siding and to consolidate their other debts at an interest rate of 6.5 percent. The actual interest rate on the mortgage was 18 percent. On December 14, 1998, ECE commenced work on the Weinzierls' house. ECE never completed the work. On January 22, 1999, ECE filed a lien against the Weinzierls' property in the amount of $15,577.00. Respondent had no knowledge of the project on the Weinzierls' house, of the mortgage arrangement made by ECE, or of the lien filed by ECE against the Weinzierls' property. On November 5, 1998, ECE entered into a contract in the amount of $3,624.00 with Barbara Lewis to install soffit and fascia at her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lewis her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Lewis that she would receive financing to pay for the soffit and fascia at an interest rate of 11 percent. The actual interest rate of the financing was 18 percent. ECE performed the work on Ms. Lewis' house in one day. Respondent had no knowledge of the project at Ms. Lewis' house or of the financing arrangement made by ECE. On August 16, 1998, ECE entered into a contract in the amount of $13,250.00 with John Maxwell to install aluminum siding at his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Maxwell his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Mr. Maxwell's house on August 18, 1998, and completed the project on August 27, 1998. On August 31, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on Mr. Maxwell's property in the amount of $13,427.55 for the installation of aluminum siding. Mr. Maxwell had signed no documents to place a mortgage on his property, and received a satisfaction of mortgage on May 19, 1999. Respondent had no knowledge of the project to be completed at Mr. Maxwell's house or of the mortgage recorded by ECE. On October 10, 1998, ECE entered into a contract in the amount of $3,663.00 with Richard Lanois and Beverly Carroll to install soffit and fascia on their residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Lanois and Ms. Carroll their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the house on October 13, 1998, and completed the project on October 15, 1998. ECE recorded a financing statement to obtain a lien on the property of Mr. Lanois and Ms. Carroll with the Manatee County Circuit Court on October 22, 1998. Neither Mr. Lanois nor Ms. Carroll had signed the financing statement that ECE filed at the court. Respondent had no knowledge of the project at the residence of Mr. Lanois and Ms. Carroll, or of the financing statement filed by ECE to obtain a lien on their property. On December 2, 1998, ECE entered into a contract in the amount of $5,739.00 with Paul and Linda Porter to install Reynolds brand thermal double pane windows at their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Porters their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Porters' house on December 5, 1998, and completed the project on December 17, 1998. ECE installed BetterBilt brand windows rather than Reynolds windows, without the Porters' approval. On December 17, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on the Porters residence in the amount of $5,775.80. The Porters had signed no documents to allow this mortgage to be placed on their property. Respondent had no knowledge of the project at the Porters' residence or of the mortgage recorded by ECE on the Porters' residence. On November 2, 1998, ECE entered into a contract in the amount of $6,426.00 with William C. Roach to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Roach his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Roach residence on November 2, 1998, and completed the project on November 3, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Roach's permission. ECE represented that Mr. Roach would receive financing to consolidate the cost of the windows, his mortgage, and his credit card debt. In fact, Mr. Roach received financing only for the cost of the windows. Respondent had no knowledge of the project at Mr. Roach's residence or of the financing arrangement that ECE entered into with Mr. Roach. On November 28, 1998, ECE entered into a contract in the amount of $3,635.90 with Carol Lipp to install Reynolds brand soffit and fascia on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lipp her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Lipp's residence on November 30, 1998, and completed the project on December 7, 1998. ECE recorded a financing statement with the Manatee County Circuit Court in order to obtain a lien against Ms. Lipp's property. Ms. Lipp had not signed the financing statement. Respondent had no knowledge of the project at Ms. Lipp's residence or of the financing statement filed by ECE on Ms. Lipp's residence. On January 22, 1999, ECE entered into a contract in the amount of $13,504.00 with Shirley G. Bradley to install 11 Reynolds thermal double pane windows and to enclose the lanai and front entry of her residence in Englewood, Florida. The contract did not contain a notice explaining to Ms. Bradley her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Bradley's residence on January 25, 1999, and completed the project on February 9, 1999. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Bradley's permission. ECE represented to Ms. Bradley that she would receive financing for the project at an interest rate of 16 percent. In fact, ECE obtained a loan for Ms. Bradley at an interest rate of 21 percent. Respondent had no knowledge of the project to be completed at Ms. Bradley's residence or of the financing arrangement between ECE and Ms. Bradley. On October 13, 1998, ECE entered into a contract in the amount of $6,511.10 with George Haight to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Haight his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Haight's permission. Respondent had no knowledge of the project to be completed at Mr. Haight's residence. On December 7, 1998, ECE entered into a contract in the amount of $15,216.00 with Shirley Behen to install Reynolds thermal double pane windows on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Behen her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Behen that she would receive financing for the windows that would also consolidate her roof payments and credit card debt. ECE provided none of the promised financing. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Behen's permission. On December 15, 1998, ECE recorded a mortgage on Ms. Behen's residence with the Manatee County Circuit Court in the amount of $10,713.95. Ms. Behen had not signed any document to secure a second mortgage on her property. Respondent had no knowledge of the project to be completed at Ms. Behen's residence or of the mortgage filed on her property by ECE. On November 17, 1998, ECE entered into a contract in the amount of $7,845.00 with Debby and Wally Keefe to install Reynolds thermal double pane windows on their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Keefes their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to the Keefes that they would receive a mortgage to pay for the windows and consolidate their credit card debt at a rate of 6.5 percent. In fact, ECE provided a mortgage with an actual interest rate of 18 percent. Respondent had no knowledge of the project to be completed at the Keefes' residence or of the mortgage arrangement between the Keefes and ECE. On September 29, 1998, ECE entered into a contract in the amount of $8,531.00 with Joe and Laura Poulin to install vinyl siding on their three duplexes in Bradenton, Florida. The contract did not contain a notice explaining to the Poulins their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE recorded a financing statement with the Manatee County Circuit Court, obtaining a lien against the Poulins' property. The Poulins did not sign the financing statement. Respondent had no knowledge of the project to be completed at the Poulins' residence or of the financing statement filed by ECE. In August 1998, ECE entered into a contract in the amount of $8,307.00 with Darwin and Joyce Wilson to install 17 Reynolds thermal double pane windows on their residence in Sarasota, Florida. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced the project on September 5, 1998, and completed the project on September 7, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without the Wilsons' permission. Respondent had no knowledge of the project to be completed at the Wilsons' residence. Also in August 1998, ECE entered into another contract with the Wilsons, in the amount of $14,000.00, to install Reynolds vinyl siding on their residence. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE began installing the vinyl siding on October 15, 1998, and completed the project on November 15, 1998. ECE represented to the Wilsons that they would receive a new first mortgage that would include the price of the windows, the siding, their house payment, and their credit card debt. In fact, ECE provided no such mortgage. Respondent had no knowledge of the second project to be completed at the Wilsons' residence. On October 7, 1998, ECE entered into a contract in the amount of $5,171.00 with Derek Campagna to install vinyl siding and fascia on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Campagna his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work on October 8, 1998, and completed the project on October 10, 1998. On or about January 5, 1999, ECE filed a lien against Mr. Campagna's property in the amount of $5,171.40. Respondent had no knowledge of the project to be completed on Mr. Campagna's residence or of the lien filed by ECE. The misrepresentation of the actual interest rate to be charged for financing the above projects was the commission of fraud or deceit in contracting by ECE and its representatives. The installation of BetterBilt windows in those houses the owners of which had contracted for Reynolds windows constituted the commission of fraud or deceit in contracting by ECE and its representatives. Respondent was unaware of ECE's fraudulent activities in the Bradenton/Sarasota area at the time they were occurring. Respondent believed that ECE did business exclusively in Indian River, St. Lucie, and Martin counties on the east coast of Florida. Respondent submitted the proper forms for the relevant permits and actively supervised ECE's construction work on the east coast of Florida. There was no evidence that ECE used Respondent's license to obtain permits for the projects it undertook in the Bradenton/Sarasota area. The evidence established that ECE pulled no permits at all for those projects. From all the evidence presented at the hearing, the inference may fairly be drawn that ECE purposely kept Respondent in the dark concerning its activities in the Bradenton/Sarasota area. Respondent first learned of ECE's activities in Bradenton/Sarasota through a telephone conversation with a friend, Peter Green. Mr. Green was a mortgage broker, and told Respondent that he was trying to secure financing for some of the ECE clients named above. Mr. Green told Respondent that some of these clients were very upset with ECE, and asked Respondent if he was aware of the problems. Respondent told Mr. Green that he was unaware ECE was doing any work on the west coast of Florida. Mr. Green gave Respondent the phone number of Darlene Weinzierl, one of the disgruntled ECE customers. Following her own bad experience with ECE, Ms. Weinzierl had undertaken an investigation of the company. She searched courthouse records for liens filed by ECE and contacted all the individuals whose names she found. Ms. Weinzierl heard "horror stories." A woman who could barely speak English told her that ECE had slapped siding over rotting woodwork, sent her a bill for $20,000, then filed a lien on her house. Another woman told Ms. Weinzierl that when she attempted to cancel her contract, the ECE salesman showed up at her door accompanied by a man ostentatiously wearing a gun in a shoulder holster. Other customers told Ms. Weinzierl that ECE had forged mortgages on their property. Ms. Weinzierl's hearsay testimony is unsupported by other competent substantial evidence and therefore cannot be relied on for the truth of the statements contained therein. However, it is undisputed that Ms. Weinzierl later conveyed this information to Respondent. Respondent telephoned Ms. Weinzierl on January 23, 1999. Ms. Weinzierl conveyed to Respondent everything she had learned about ECE. The next day, Respondent spoke with James Pizzo, Jr., one of the principals of ECE. Mr. Pizzo told Respondent that he had a very aggressive salesman who "had made a lot of promises to people," but that he was in the process of responding to the complaints and correcting the situation. Respondent asked Mr. Pizzo why ECE was doing business on the west coast of Florida. Mr. Pizzo replied that ECE's telemarketing effort had saturated the east coast, and he believed there was a fresh market on the west coast. Because he had worked with Mr. Pizzo for over a year and had a good working relationship with ECE, Respondent took at face value Mr. Pizzo's promise to correct the problems. Respondent took no action on his own, and continued to act as the qualifying agent for ECE. Respondent did not visit any of the west coast job sites or make any independent effort to contact ECE's victims. FDLE commenced a RICO investigation of ECE in the spring of 1999. Special Agent Charles Leonard, the FDLE investigator, first interviewed Respondent on May 10, 1999. Respondent was never a target of the investigation, and cooperated fully. Respondent did not sever his relationship with ECE until February 2001. By this time, 14 complaints had been filed against ECE by customers in the Bradenton/Sarasota area, and ECE had taken no action to address the situation beyond ceasing to do business in the area. In mitigation of his failure to take any action for two years after he became aware of ECE's fraudulent practices, Respondent pointed to the precarious state of his health. In January 2000, Respondent's car was stopped on I-95 when it was rear-ended by a truck traveling at 50 to 60 miles per hour. Respondent received a concussion and suffered excruciating headaches. His neurologist ordered an MRI and found a brain tumor. The tumor could not be removed entirely. Respondent is also a diabetic. Respondent continues to have headaches so severe that he requires trigger point injections of pain medication and epidural injections in his neck and upper spine every few months. He regularly takes Tylenol III with codeine. He requires an MRI every six months to monitor his brain tumor. Prior to his brain surgery, Respondent managed his diabetes through oral medication; however, since the surgery he has needed three injections of insulin daily. At the same time he severed his relationship with ECE, Respondent notified Petitioner that he was transferring his license to inactive status. Respondent no longer actively practices contracting. However, his current position as a construction project manager for the Broward County School Board requires that he hold at least an inactive general contractor's license. Respondent credibly testified that if he were to lose his current job, and the health insurance that goes with it, he could not pay his medical bills.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(l) and (m), Florida Statutes, suspending Respondent's license for three years from the date that Respondent re-activates his license, imposing an administrative fine in the amount of $3,000.00, and requiring Respondent to pay costs of Petitioner’s investigation. DONE AND ENTERED this 12th day of March, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 12th day of March, 2002. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 E. Cole Fitzgerald, III, Esquire Fitzgerald, Hawkins, Mayans & Cook Post Office Box 3795 West Palm Beach, Florida 33401 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations of Emerald Coast Utility Authority’s Human Resources Manual as alleged in the agency action letter dated July 17, 2017.
Findings Of Fact At the outset of the hearing, Mr. Ward’s attorney announced that Mr. Ward no longer wished to challenge ECUA’s intent to terminate his employment. In other words, Mr. Ward withdrew his request for a hearing. Furthermore, Mr. Ward made a statement consistent with his attorney’s announcement. The undersigned finds that Mr. Ward’s decision to withdraw his hearing request was voluntarily made and uncoerced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of Emerald Coast Utilities Authority find that Mr. Ward violated Section B-13 A (4)(conduct unbecoming an ECUA employee), Section B-13 A (13)(falsification of records), Section B-13 A (18) (loafing), Section B-13 A (26)(substandard quality or quantity of work), and Section B-13 A (33)(violation of ECUA rules or guidelines or state or federal law) of the ECUA’s Human Resources Manual.3/ DONE AND ENTERED this 28th day of September, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2017.
Findings Of Fact The Respondent applied for a Class "EE" repossessor intern license, a Class "C" private investigator license, and a Class "M" manager license from the Petitioner sometime in the latter part of August or early September 1985. On January 23, 1986, Petitioner denied Respondent's application for the above-mentioned licenses primarily on the basis that Respondent lacked "good moral character" and that there was a substantial connection between the Respondent's lack of "good moral character" and the business of private investigator or repossessor for which the Respondent sought licenses. Petitioner issued Respondent a Class "EE" license No. GEE8500097, a Class "C" license No. GC 8500619, and a Class "M" license No. GM8500444 on February 5, 1986. Petitioner advised Respondent by letter dated February 11, 1986, that the denial had been rescinded, the licenses issued, and an Administrative Complaint filed to revoke those licenses. The letter further stated that the reason for issuing the licenses was based solely on the Petitioern's failure to comply with the 90 day requirement in Section 120.60(2), Florida Statutes. Respondent currently holds the above-mentioned licenses. Respondent was employed by the Escambia County Sheriff's Department (Department) on January 3, 1975. On January 2, 1985, Respondent was give a letter of reprimand for an alleged violation of Section 21.111, Escambia County Sheriff's Manual, by involving himself in a criminal case in which Respondent had no official standing. Petitioner presented no evidence concerning the underlying facts which resulted in the reprimand. Respondent's testimony concerning the reprimand, which I found credible, was that he had talked with someone in the State Attorney's Office about a case pending against Homer Curtis Wright (Wright) at the request of Lieutenant Newman because Lieutenant Newman though Wright was a vitim of the system, had never been convicted of crime, had four small children and did not need a felony conviction on his record. This incident occurred prior to the incident involved in Finding of Fact 6, although the letter of reprimand in this incident was written some ten months after the incident in Finding of Fact 6. On April 3, 1984, Respondent was given Notice of Disciplinary Action for accepting nine pounds of coffee from inmate Wright in violation of Part II, Chapter 14, Section B, Rule 11, Corrections Division, Jail Operations Manual, Escambia County Sheriff's Department and Rule 33-803(2), Florida Administrative Code. However, it was later determined that Respondent had been authorized by the "Officer in Charge" to acept the coffee for use in the jail and the disciplinary actiosn were withdrawn by the Department. On May 10, 1985, Respondent was issued a Notice of Disciplinary Action alleging that Respondent had cashed five out-of-town checks made payable to Wright and drawn on Mary Odom, knowing that Wright was a convicted felon, and withholding $450.00 from the monies received for those checks, and representing ot Wright that the money withheld was a fee charged by the bank for cashing the checks. On the basis of this allegation, Respondent was charged with violation of the Escambia County Sheriff's Department Policy of associating with known criminals in violation of Policy No. 21.107, of assisting criminals in violation of Policy 21.105, with conduct unbecoming an officer in violation of Policy No. 21.87, and compromising an officer's integrity in violation of Policy No. 21.89. Respondent filed a Notice of Appeal of this disciplinary action with the Escambia County Civil Service Board (Board). In October 1985 prior to this matter being heard by the Board, the Respondent and the Department entered into a Stipulated Agreement whereby the disciplinary action was amended to a single charge of conduct unbecoming an officer in that Respondent used poor judgment. The disciplinary action was further amended to provide for a 30 day suspension rather than a dismissal and for Respodnent to receive back pay from June 10, 1985, the day after the 30 day suspension ended, until October 16, 1985, the day the stipulation was signed. In return, Respondent agreed to dismiss his appeal with the Board and voluntarily retire from the employ of the Department. There was insufficient evidence to prove that Respondent advised Wright that the bank charged a fee for cashing the checks drawn on Mary Odom made payable to Wright and withholding $450.00 for that purpose. Wright freely gave the Respondent $450.00 for getting the bank to cash 5 checks drawn on Mary Odom made payable to Wright, because Wright was unable to get them cashed and that Wright only brought charges against Respondent after he and Respondent had a disagreement concerning the payment of work performed for Respondent by Wright. There was insufficient evidence to prove that Respondent knew or should have known that Wright was trying to defraud Mary Odom. In fact, Mary Odom was advise to pursue this matter civilly rather than criminally, because there was insufficient evidence to prove conspiracy with intent to defraud by Wright. There was no evidence that Mary Odom proceeded against Wright or the Respondent civilly. On occasions, Wright worked for the Respondent, however, other officers within the Department worked what could be referred ot as "known criminals" without being disciplined by the Department. There was no evidence that Respondent "socialized" with any "known criminals" other than Wright. Respondent's "socializing" with Wright could best be described as using poor judgment rather than "associating with known criminals" to the extent that he was "assisting criminals" in performing illegal acts. During Respondent's employment with the Department he received numerous letters of commendation. Major Adrian Kirksey supervised Respondent for two years during which time Respondent performed his duties without any problems. If the discipline sought of an employee of the Department was less than dismissal or termination, the Department determined the appropriateness of the discipline given an employee and there was no opportunity for the disciplined employee to have a hearing before the Sheriff of Escambia County. The Bank obtained a judgment against Respondent in the sum of $450.00 on September 16, 1980, on a Master Card account which was satisfied on August 19, 1982. The Bank obtained a judgment against Respondent in the sum of $952.00 on January 15, 1980, which was satisfied on March 27, 1980. On July 29, 1985, the Federal Home Loan Mortgage Corporation obtained a final judgment of foreclosure on Respondent's residence in the sum of $76,650.23. The certificated of title was issued to Federal Home Loan Mortgage Corporation on September 3, 1985, after it was the successful bidder on the property at $77,286.27. This foreclosure action also involved a second mortgage to the Bank in the amount of $17,420.95 which has been charged to reserve for bad debts by the bank. On March 5, 1985, the Liberty Bank of Cantonment obtained a final judgment of foreclosure against the Respondent on property located in Escambia County and was issued a certificate of title to the property on April 16, 1985, after being the successful bidder. On April 20, 1981, the Bank obtained a Final Judgment of Foreclosure against Respondent in the sum of $45,506.31 on a parcel of commercial property located on Navy Boulevard in Pensacola, Florida, and secured a certificate of title on May 27, 1981, after being the successful bidder. After obtaining the certificate of title, the bank was unable to sell the property and, on November 19, 1984, resold the property to Respondent for which he executed a note in the amount of $48,000.00. Respondent made some payments on this note, but on December 30, 1985, the balance of $47,241.42 was charged off to Reserve for Bad Debts by the Bank. On August 28, 1985, Respondent and his wife, Carla Gail Barnes, filed a Suggestion of Bankruptcy. There was no evidence introduced as to what title bankruptcy was filed. Respondent was a member of the Escambia County Employees Credit Union (Credit Union) from sometime in 1974 until 1980 when his membership ended. During Respondent's membership, he applied for and received a loan on property located in Santa Rosa County, Florida, specifically Jay, Florida, in the amount of $13,000.00 based on an appraisal submitted by A. A. O'Daniel, Appraiser for the Credit Union, to Respondent showing the property to have a value of $15,500.00. Respondent defaulted on this loan and the Credit Union foreclosed on the property. The Credit Union sold the property for $4,000.00 and obtained a deficiency judgment in the amount of $16,766.65. There was insufficient evidence to show whether the appraiser made a mistake as to value or appraised the wrong parcel of property, but at the time of foreclosure another appraiser valued the parcel of property at $4,000.00. There was no evidence that Respondent influenced the original appraiser in any manner to inflate his appraisal. The deficiency judgment has not been satisfied, but Respondent's appeal of the deficiency judgment was not rendered by the appellate court until May 14, 1986. On November 18, 1977, Respondent signed a mortgage deed on property described as the Navy Boulevard property to secure a promissory note given to the Credit Union on the same date in the sum of $38,057.00. The mortgage deed was improperly executed in that his signature was neither witnessed nor acknowledged. This mortgage, for whatever reason, was never recorded. At the time Respondent borrowed this money, the property was not deeded to Respondent. It was in early 1978 that Respondent discovered that Charles Bryan, the manager of the Credit Union, had had the property deeded to himself, and in August of 1978 Respondent was able to get Charles Bryan to deed the property to him. It was after Respondent received title to the property that he proceeded to borrow money from the Bank and give the Bank a mortgage deed on this property to secure the promissory note mentioned in paragraph 20. Although Patricia Porto testified that the Credit Union never received any of this money borrowed from the Bank by Respondent, the Respondent's testimony, which I find credible, was that two checks were given to Charles Bryan for the Credit Union to pay off the promissory note given by Respondent to the Credit Union mentioned above. There was no evidence that Charles Bryan gave this money to the Credit Union. During the period that Charles Bryan was managing the Credit Union, there were several checks drawn on the Credit Union made payable to Respondent that the Credit Union treated as loans made by Respondent although thgere were no loan applications, promissory notes or other necessary documentation required by Credit Union policy in the files of the Credit Union. These checks were signed by Charles Bryan, Linda S. Hurd, and Linda F. Steadman. Although Respondent was joined in a civil suit with Charles Bryan and Arnold Craft filed by the Credit Union to recover these funds, only a judgment against Charles Bryan was entered. The Credit Union has not attempted to proceed any further on this matter. The Credit Union filed a bond claim against the bond of Charles Bryan in the amount of $200,000.00, which included actual and alleged loans of the Respondent that had not been paid, and collected 80% of that amount from the bonding company on Charles Bryan's lack of faithful performance. Although Respondent defaulted on several loans, the record reveals that he did make payments on those loans. The record further reveals that even though Respondent defaulted on the first mortgage to the Bank, the Bank later felt that Respondent could probably handle the mortgage the second time around, but, due in part to his problem of employment with the Department, he was unable to handle it and the Bank had to write it off as a bad debt.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violatons as charged in the Administrative Complaint and that Counts I through IX of the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 13th day of November 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 1986. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact submitted by the Petitioner. Although paragraphs 5, 6, 13 and in part paragraph 10, are recitations of the witnesses' testimony, I have treated them as findings of fact. Rejected as a Conclusion of Law rather than a fact. Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Sentences 1, 4, 6, and 7 adopted in Finding of Fact 7. The first phrase of sentences 2 and 3 are adopted in Finding of Fact 7, but there is no substantial competent evidence in the record to support the balance of those facts and are therefore rejected. Paragraph is rejected because there is no substantial competent evidence in the record to support that finding. Sentences 1 and 3 are rejected because there is no substantial competent evidence in the record to support those findings. The second sentence is adopted in Findings of Fact 16 and 17. Since there is no specific finding of fact that the allegations of Count IV pertain to Respondent, paragraph 7 is adopted, but not in any particular paragraph. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. All of paragraph 10 with the exception of the last sentence is adopted in Findings of Fact 22 and 23 as modified. The last sentence is rejected as irrelevant and immaterial. Sentences 1 through 5 and 7 adopted in Finding of Fact 24, as modified. Sentence 7 adopted in Finding of Fact 25. Sentence 6 rejected as irrelevant and immaterial. Sentences 1 and 2 adopted in Finding of Fact 23. The balance of paragraph 12 is rejected because there is no substantial competent evidence in the record to support that finding. Rejected as argument. Rejected because there is no substantial competent evidence in the record to support that finding. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. & 3. Rejected as immaterial and irrelevant. 4. Adopted in Finding of Fact 2. 3-7. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as immaterial and irrelevant. & 11. Adopted in Finding of Fact 5 Adopted in Finding of Fact 6 Adopted in Finding of Fact 7. & 17. Adopted in Finding of Fact 7. , 16. & 19. Adopted in Finding of Fact 12 as modified. 18. Adopted in Finding of Fact 15. 20. & 21. Adopted in Finding of Fact 14 as modified. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 18 as modified. Adopted in Finding of Fact 19. & 41. Adopted in Finding of Fact 20. 28.-31. Rejected as not supported by substantial competent evidence in the record. & 34. Adopted in Finding of Fact 22. , 35., 38. & 39. Adopted in Finding of Fact 23. 37. Adopted in Finding of Fact 23. 37. & 40. Adopted in Finding of Fact 24. 42.-44. Adopted in Finding of Fact 26. COPIES FURNISHED: Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 James V. Antista, Esquire Department of State The Capitol Tallahassee, Florida 32301 R. John Westberry, Esquire 24 West Government Street, Suite 285 Post Office Box 748 Pensacola, Florida 32594
The Issue The issue in this case was to determine whether Respondent violated Sections A-5(B) and F-4(4), (19), (27) and (33) of the ECUA Human Resources Policy Manual.
Findings Of Fact In 2000, Respondent was employed by Petitioner. At the time, Respondent was given a copy of the employee handbook, receipt of which was acknowledged by Respondent. The Handbook is a summary of Petitioner’s human resource policies. Specific human resources policies are contained in Petitioner’s Human Resources Policy Manual. Both documents reference a Code of Ethics that is to be adhered to by employees (page 2 of the Employee Handbook and page 5 of the Human Resources Policy Manual). Likewise, both documents contain provisions for discipline of an employee (page 32 of the Employee Handbook and page 52 of the Human Resources Policy Manual). The Human Resource Manual states, in relevant part, as follows: Section A-5 Code of Ethics * * * * B. No ECUA employee shall use or attempt to use their position to secure special privilege or exemptions for themselves or others, except that which may be provided by policy and/or law. * * * * Section F-4 Disciplinary Offenses * * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job that involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee’s effectiveness as an ECUA employee. . . . Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. * * * * (19) Unauthorized use of ECUA Property or Equipment The unauthorized use of any ECUA property or equipment for any reason other than ECUA business. * * * * (27) Theft or Stealing The unauthorized taking of any material or property of the ECUA, other employees, or the public with the intent to permanently deprive the owner of possession or to sell or to use for personal gain. * * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of failure to take corrective action or report rule violations and employee misconduct. * * * * Sometime in 2003 or 2004, Respondent moved to his residence located at 280 East Ten Mile Road. The home had a 10,000 gallon pool. The home’s waterline was attached to a metered water tap on a three-inch ECUA waterline. At some point Respondent became dissatisfied with his home water service and wanted to connect his home’s waterline to a 12-inch ECUA water line that also ran in front of his home. Respondent asked Steve Castro, a crew supervisor for Region 1, the region Respondent’s house was in, about “what I needed to do” to transfer his house waterline from the three- inch line to the 12-inch line. Respondent was informed that when the work in that region was caught up, Mr. Castro would have the new tap put in. About two days later, Jeremy Stewart, an ECUA service technician, installed a tap on the 12-inch line in front of Respondent’s home. No meter was installed on the new tap. At the time, Respondent’s houseline was not hooked to the new tap, leaving the tap unused. In 2004 and 2005, the Pensacola area was hit with multiple hurricanes that caused damage to Respondent’s home. His pool developed black algae, which generally requires pressure washing and chemical treatment to remove. In preparation for removal of the algae, Petitioner drained his pool about half way. Sometime in late March or early April, 2006, Petitioner asked Harry Shoemore, his supervisor, to find out how to apply for water service from the 12-inch line and how much it would cost in fees to obtain the new water service. Mr. Shoemore obtained the information for Respondent and radioed him with the information. The fees for the new service would exceed 1000.00 dollars and had to be paid prior to service being installed. On April 9, 2006, Respondent, with full knowledge that he had not paid for any tap, hooked a waterline to the 12-inch tap that had been installed earlier. The line ran around the house to the backyard and into the pool. He did not attach a meter to the tap and did not pay any fees to ECUA. Respondent used water from the tap to pressure wash his pool and fill it. An estimated amount of water used by Petitioner to accomplish these tasks would be over 7,000 gallons of water. On April 10, 2006, Mr. Dawson received a telephone call that there was an unmetered tap at 280 Ten Mile Road. Mr. Dawson and Mr. Shoemore drove to the address to investigate the call. They arrived at Respondent’s house around 8:30 a.m. and saw the ECUA’S one-inch black service tubing from the 12- inch line attached to white PVC piping extending to the backyard of Respondent’s home and emptying into Respondent’s pool. The pool was being filled and water had overflowed into the backyard. There was no meter on the service line. Respondent’s father met Mr. Dawson and Mr. Shoemore at the door to the house. He advised them that he had called Respondent and that Respondent was on his way to his house. Respondent drove up to the house in an ECUA work truck. As he approached Mr. Dawson and Mr. Shoemore, Respondent stated, “You caught me.” Respondent also admitted to attaching the PVC pipe to the line and using the water to pressure wash and fill his pool. He admitted he was wrong for making the attachment and using the water without paying for it. Respondent indicated he was willing to pay for the water and service. There is no question that Respondent illegally connected to and used ECUA property, stole water from ECUA, and deprived ECUA, as well as the County, the connection and impact fees related to such use. Respondent was immediately placed on Administrative Leave with Pay, pending further investigation by Petitioner. Later Respondent was afforded his due process rights by ECUA. Petitioner did review prior disciplinary action against other employees who were allegedly “caught stealing,” including two past incidents that Respondent indicated had not resulted in termination of the employee. One of the incidents could not be verified. The other incident was vague, was not brought to the attention of the past administration for discipline and occurred well prior to the current administration’s policy against theft and employee conduct. Respondent also referenced two employment actions that involved the falsification of time records. At least one of these actions resulted in some form of hearing. However, the evidence was vague regarding these disciplinary actions and any similarity between these cases cannot be determined from the evidence.
Conclusions For Petitioner: John E. Griffin, Esquire Carson & Adkins 2958 Wellington Circle, North Suite 200 Tallahassee, Florida 32308-6885 For Respondent: Marc Hughes 280 East Ten Mile Road Pensacola, Florida 32534
The Issue The issue in this case is whether the Respondent has committed the violations as charged.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. In July 2008, Respondent was hired by Petitioner as a sanitation equipment operator. At the time, Respondent was given a copy of the employee handbook. Receipt of this document was acknowledged by Respondent. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resources Policy Manual. The July 16, 2010 letter, which informed Petitioner of his termination, cited to the following provisions of the Human Resources Policy Manual, which state as follows: Section F-4 Disciplinary Offenses * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee's effectiveness as an ECUA employee, or that adversely affects the employee's ability to continue to perform their job, or which adversely affects the ECUA's ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a "conduct unbecoming an ECUA employee" offense determines the appropriate penalty. Further, the repetition of the same or similar conduct may lead to progressive discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of and failure to take corrective action or report rule violations and employee misconduct. The termination letter concluded that the facts and circumstances surrounding Respondent's conviction of a third- degree felony constitute a violation of the above-quoted provisions. On November 30, 2009, Respondent was arrested and charged with 1) "sexual assault/sexual battery, victim over 12 years of age, physical force"; and 2) "cruelty toward child abuse without great harm." On June 16, 2010, the State filed a nolle prosequi regarding the first charge of sexual assault/sexual battery, victim over 12 years of age, physical force. Thus, this charge was dropped, resulting in no conviction of this charge. Also on June 16, 2010, Respondent pled nolo contendere/no contest to the second charge of cruelty toward child abuse without great harm. This plea resulted in a conviction of this charge, which is a third-degree felony. The court placed Respondent on probation for three years. Ronald Ross is a deputy with the Escambia County Sheriff's Office. In October 2009, Deputy Ross worked in the special victims unit concerning crimes of a sexual nature against children and the elderly. Deputy Ross interviewed Respondent on October 30, 2009, regarding the incident that led to criminal charges being filed. At the time of the interview, Respondent was not under arrest. The interview took a little over an hour. During the interview, Deputy Ross described the allegations: that Respondent touched and fondled the breast and vaginal area of a 16-year old victim; that his finger penetrated the victim's vagina; and that Respondent exposed his penis to the victim. According to Deputy Ross, Respondent initially denied all of the allegations, but, as the interview went on, he admitted to some of the allegations. That is, Respondent admitted to touching the girl, denied exposing himself, and asserted that the girl was a willing participant in the encounter. Despite Respondent's initial reluctance to admit to the offense, Deputy Ross described Respondent as very cooperative during the interview. At hearing, Respondent did not wish to discuss the specific facts and circumstances of the incident in detail, which is his right. He insists, however, that he was not looking for trouble, that the "young lady" approached him, and that he pled out only because he did not have the financial resources to pay his attorney to go to trial. Despite the above, Respondent is remorseful for his actions. Respondent is concerned that the investigation of this incident conducted by ECUA was not complete. In particular, he is concerned that ECUA relied only on the Deputy's investigative interview of him, and did not review depositions in the court file that led to the prosecutor dropping the more serious charge. He also questions whether he is the only ECUA employee with a third-degree felony who was fired. There is no evidence in the record to establish whether Respondent was treated any differently than other employees who were convicted of offenses of the same category, i.e., third degree felonies. Respondent had a felony conviction prior to becoming employed by ECUA. In 2000, Respondent was convicted of a drug conspiracy charge and served a prison sentence for that crime. He disclosed his criminal background to ECUA when he was hired. Randall Rudd is the Sanitation Director for ECUA. He was aware of Respondent's prior conviction, but despite this, made the decision to hire Respondent in 2008. When Mr. Rudd learned of Respondent's 2010 conviction, he became concerned that this conviction could have an impact on Respondent's job. Specifically, Respondent was assigned yard trash collection. This involved regular interaction with the public, in that customers regularly ask questions of the sanitation operator, and the driver is often the only employee on the truck. In addition to the conviction itself, Mr. Rudd was concerned about the nature of the offense, Respondent's contact with the public, how the public might view ECUA, and potential liability to ECUA. Mr. Rudd acknowledged that Respondent was a good employee who never had any problems dealing with the public, and that his decision to terminate Respondent was not an issue of job performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (4) and (33) and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resource Policy Manual. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 4th day of November, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Ron E. Williams 7041 Andros Drive Pensacola, Florida 32506 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual, amounting to "conduct unbecoming a ECUA employee" and "sexual harassment."
Findings Of Fact The Petitioner, ECUA, is an agency of local government, established pursuant to an enabling act of the Florida Legislature at Chapter 81-376, Laws of Florida, as amended. It is a "regional water supply authority" for purposes of Sections 163.01 and 373.1962, Florida Statutes (2008). It is thereby given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water and wastewater utility service. It is authorized in that act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That manual was adopted in accordance with Part III, Chapter 112, Florida Statutes. The Petitioner also has promulgated an "Employee Handbook," in evidence as ECUA Exhibit Two. Page 32 of that Handbook addresses "rules of conduct" and Rule 4 of those rules of conduct precludes an employee from engaging in "conduct unbecoming a ECUA employee." Sexual harassment is also prohibited, by Employee Handbook Rule 24, at page 32. Sexual harassment is then defined at Section A- 4, page 4 of the Human Resources Policy Manual, in evidence as ECUA Exhibit 1. Ms. Deni Deron was hired as a "Utility Worker I" beginning on June 1, 2008. Nathan Thomas, a witness in this case, was hired as a Utility Worker I on a permanent basis on June 16, 2008. He had been a temporary worker before that time. The Respondent, Emmett R. Woods, Jr. (Woods or Respondent), was the supervisor of Ms. Deron and Mr. Thomas. Both were probationary employees for six months after their hiring date. The Respondent's job title was "Lead Worker," which is a sort of foreman. He was assigned responsibility for a "camera truck," a work truck carrying a television camera projection apparatus, designed to use a television camera to observe inside waste water mains, accessible at manholes, in order to determine sources of leakage, breakage or other issues related to wastewater main repair and maintenance. Sometime in early October 2008, Ms. Deron, the complainant, was assigned to the Respondent's camera truck, to be supervised by him in the duties performed through the use of that truck. Early in her period of assignment to the truck and the company of the Respondent, probably on the first day, while they were alone in the truck, the Respondent began kissing her without her permission. This made her uncomfortable, although she did not take any particular overt action about it at the time. Later in that day, however, she told the Respondent that it had made her feel uncomfortable and that he should leave her alone and "be just friends." The Respondent behaved in a normal fashion for the next couple of days and engaged in no harassment of her. Thereafter, however, he began inappropriately touching her on one occasion or another, principally while they were riding in the work truck, on almost a daily basis. He engaged in vulgar, sexually related conversation with her. This was without her invitation, although she admittedly engaged in some of such conversation with him as well. Such talk on her part, however, was in a joking vein and was usually in a situation where several employees were together at lunch, or on occasions of that nature, when such joking conversation would begin, in which she admittedly participated. This was not the situation when the Respondent and Ms. Deron were alone in the work truck and elsewhere on the job. The Respondent engaged in inappropriate touching of Ms. Deron on a frequent basis. He touched her by unclasping her bra through her shirt, by unexpectedly running his hand beneath her shirt and grabbing her breast, and at various times grabbing her breast and crotch. All this activity was uninvited and uninitiated by Ms. Deron. She was upset by it and did not enjoy it, as her testimony shows, as corroborated by that of her co- worker, Nathan Thomas, who observed much of the conduct. Nathan Thomas, in fact, observed such conduct make her cry on a number of occasions. The Respondent alluded to his close relationship with the director of their department and intimated to both Ms. Deron and Mr. Thomas that he and the director fished together, were good friends, and that he could get them fired if he chose. Ms. Deron told Nathan Thomas about the Respondent's conduct about two weeks after they had been assigned to his truck (and he observed much of it as well). She told him that she was going to try to video his conduct when it happened again. Mr. Thomas described her demeanor as being upset and crying at the time. In fact, Ms. Deron did use her video cell phone to video some of the Respondent's inappropriate touching and conduct, both physical and verbal. This was stored on an ECUA computer and displayed to the undersigned, and all parties, at the hearing. This tends to corroborate the testimony of Ms. Deron and Nathan Thomas. Nathan Thomas, in fact, testified that he observed the Respondent touch Ms. Deron inappropriately, in one way or another, approximately every other day. Ms. Deron admitted that she did some flirting when she first came to work at ECUA. She described it as being a function of being single and was flirting mostly as a mechanism to "fit in, in an all male staff." That fact, however, does not obviate the clear import of her testimony, that of Nathan Thomas, and that of Sharon Griffin. Ms. Griffin is a Human Relations Generalist II, working in employee relations for ECUA. She does recruiting, knows Ms. Deron and helped her get hired and "processed-in" to her job. Just before Thanksgiving in November 2008, she observed Ms. Deron outside her office and had a conversation with her. She noticed Ms. Deron appeared somewhat nervous and asked her how she was getting along with an all male crew. At that point they agreed to have a private talk within Ms. Griffin's office. Ms. Deron at that point tearfully told her of the conduct of the Respondent. Ms. Deron also gave Ms. Griffin access to the video made on Ms. Deron's cell phone. The gravamen of Ms. Griffin's testimony is that Ms. Deron clearly appeared sincere and genuinely upset about the matter and this helped to convince Ms. Griffin that it was a truthful account of what had happened. Nathan Thomas, in his testimony, stated that the Respondent made him afraid for his job so he did not report what he had observed. He testified that he felt, at first, that it was not his place to report the Respondent's conduct. When he saw how upset Ms. Deron was he apologized to her for not reporting it, and realizes that he should have. The Respondent's testimony, and that of his witnesses, was to the general effect that Ms. Deron was not a "quiet person" and freely engaged in sexually suggestive joking conversation with them, and other workers, regarding sexual matters such as "penis size" and how long it had been since one had sex. The Respondent and his witnesses described Ms. Deron as being flirtatious. The Respondent, for his part, testified that "me and Deni did fool around" but the Respondent contends that it was just flirting, was not forced and was consensual. In considering the testimony of Ms. Griffin, Ms. Deron and Mr. Thomas, versus that of the Respondent and the Respondent's witnesses, it is observed that the Respondent's witnesses are his co-workers, in a relationship that pre-dates Ms. Deron's employment. Their testimony may cast Ms. Deron in a less favorable light by inferring that the activity may have been consensual. It does not establish that fact, however, and does not refute the Respondent's perpetration of the above- described conduct. They did not observe the conduct. Ms. Deron and Mr. Thomas did observe it and the manner of its occurrence is corroborated by Ms. Griffin's testimony. The testimony of Ms. Deron, Mr. Thomas, and Ms. Griffin is more germane, credible and worthy of belief and is accepted. It is thus established that the inappropriate touching and other sexually-related behavior, inflicted by the Respondent on Ms. Deron occurred in the manner described above. It was not consensual. Even if Ms. Deron attracted such behavior, or seemed to invite it, based upon being somewhat flirtatious, the behavior of the Respondent was still not appropriate and, by any measure, constitutes sexual misconduct and harassment, occurring in the course of employment. This is particularly so since the Respondent occupied a position of superior power, as the supervisor of Ms. Deron and Mr. Thomas, and in fact threatened their employment, at least implicitly, if they revealed the subject conduct. Moreover, even if the Respondent's version were somewhat true (which is not accepted), and Ms. Deron invited this conduct, and was a willing participant in it, it is still a violation of the above-referenced rules applying to ECUA employees. Engaging in such conduct, even if consensual, on the employer's truck, when attention should be paid to duties, and with all the negative circumstances that such sexually-related conduct can cause, displays extremely bad judgment on the part of the Respondent. Such a lavish display of poor judgment, even if the conduct did not amount to sexual harassment, clearly is conduct unbecoming a ECUA employee within the meaning of the Petitioner's above-referenced rule.
