06-002219 Emerald Coast Utilities Authority vs. Marc Hughes Status: Closed Recommended Order on Friday, September 29, 2006.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES )

AUTHORITY, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2219

)

MARC HUGHES, )

)

Respondent. )

)

REPORT TO THE EMERAL D COAST UTI LITY AUTHORITY

Pursuant to th e certain contract between the Division of

Administrative Hearings and Emerald Coast Utilities Authority

(ECUA) and after written Notice of Hearing, a fact - finding

hearing for the purpose of taking testimony and receiving

exhibits was conducted in this case on August 30, 2006, in

Pensacola, Florida, before Diane Cleavinger, Administrative Law

Judge with the Division Of Administrative Hearings.

APPEARANCES

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

STATEMENT OF 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.

PRELIMINARY STATEMENT

On April 10, 2006, Respondent, Marc Hughes , was placed on

administrative leave with pay to permit Petitioner to

investigate whether Respondent had tapped into an ECUA water

line and used such unmetered water. By certified letter dated

April 26, 2006, Respondent w as notified that the Petitioner

intended to take employment action against him for use of an

unmetered water tap in violation of the ECUA Human Resources

Policy Manual, Section A - 5(B) Code of Ethics; Section F - 4(4)

Conduct Unbecoming an ECUA Employee; Sect ion F - 4(27) Theft or

Stealing and Section F - 4(33) Violation of ECUA Rules or Policies

or State and Federal Law. The letter also advised Respondent of

his right to a predetermination/liberty interest hearing.

On May 3, 2006, a predetermination/liber ty interest hearing

was held at ECUA’s Human Resources and Administrative Services

Department. Petitioner participated in the hearing. After the

hearing, by letter dated May 19, 2006, Respondent was terminated

for his use of an unmetered water tap in vio lation of the ECUA

Human Resources Policy Manual, Section A - 5(B) Code of Ethics;

Section F - 4(4) Conduct Unbecoming an ECUA Employee; Section F -

4(27) Theft or Stealing and Section F - 4(33) Violation of ECUA

Rules or Policies or State and Federal Law. The le tter further

advised Respondent of his right to appeal Petitioner’ s

employment action and request a fact finding hearing before an

Administrative Law Judge with the Division of Administrative

Hearings.

By letter dated, May 29, 2006, Respondent, timel y filed a

request for hearing. The request indicated that Respondent did

not feel he was treated the same as other similarly situated

employees. The case was forwarded to the Division of

Administrative Hearings.

As indicated earlier, the hearing was held on August 30,

2006, and was electronically recorded. At the hearing,

Petitioner presented the testimony of Tina Shelton, ECUA

Director of Human Resources ; Jeremy Stewart, an ECUA employee ;

Ernest Dawson, ECUA Director of Regional Services ; and Harry

Shoemore, ECUA Region 1 Supervisor. Petitioner also introduced

14 exhibits into evidence , consisting of:

1. Human Resources Policy Manual

2. Employee Handbook

3. Acknowledgement of receipt of The Employee Handbook

signed by Respon dent

anscript of the May 3, 2006, Predetermination

Hearing

5 - 11. Various photographs of 280 East Ten Mile Road

12. Memorandum dated April 10, 2006 to Respondent

suspending him with pay .

13. Letter dated April 28, 2006, regarding outcome of

inve stigation, recommendation of termination and right to

a predetermination hearing.

14. Letter of termination dated May 19, 2006.

FINDING OF FACT

1. In 2000, Respondent was employed by Petitioner. At the

time, Respondent was given a copy of the emp loyee 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 5 2 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 the mselves 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 turpitud e,

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

cond uct 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

acc epting a bribe, discrimination in

employment, or actual knowledge of failure

to take corrective action or report rule

violations and employee misconduct.

* * * *

2. Sometime in 2003 or 2004, Respondent moved to his

residence located at 280 East Te n 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.

3. 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 l ine 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.

4. In 2004 and 2005, the Pensacola area was hit with

multiple hurricanes that caused damage to Resp ondent’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.

5. Sometime in late March or early Apr il, 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 radioe d 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.

6. On April 9, 2006, Respondent, with full knowledge that

he had not paid for any tap, hooked a waterline to t he 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.

7. 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.

8. Respondent’s father met Mr. Dawson and Mr. Shoemore at

the door to the house. He advised them tha t he had called

Respondent and that Respondent was on his way to his house.

9. 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 att aching 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. T here 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.

10. Respondent was immediately placed on Administr ative

Leave with Pay, pending further investigation by Petitioner.

Later Respondent was afforded his due process rights by ECUA.

11. Petitioner did review prior disciplinary action

against other employees who were allegedly “caught stealing,”

includ ing 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 occ urred 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.

CON CLUSION

12. As indicated, both the ECUA Human Resource Manual and

the Employee Handbook contain p rovisions which prohibit an

employees from stealing, misusing ECUA property and/or

otherwise, behaving in a manner that is unbecoming to an ECUA

employee. Petitioner had notice of and knew about these

policies.

13. In this case, while there was one incident of theft,

that act violated multiple sections of the ECUA Human Resources

Policy Manual. There can be no doubt that stealing from one’s

employer is an act of moral turpitude falling well below any

social norm for honesty and integrity. Responden t’s theft was

both knowing and intentional. Unquestionably, such action is

conduct unbecoming to an ECUA employee and violates the Code of

Ethics contained in the ECUA Human Relations Policy Manual,

Sections A - 5(B) and F - 4(4). Likewise, such theft involv ed the

illegal use of ECUA water, lines and equipment since Petitioner

had not paid for the connection, had no meter on the tap so that

ECUA could measure Respondent’s usage , and had not paid the

required impact fees to ECUA for such tap. Such illegal use

constitutes both a misuse of ECUA property and theft of ECUA

property in violation of Sections F - 4(19) and (27). Finally,

because Respondent’s theft violated the above - referenced

policies of ECUA and violated state law regarding theft,

Respondent’s act v iolated Section F - 4(33) of the ECUA Human

Resources Policy Manual.

R EPORT SUBMITTED this 29th day of September , 2006.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 29th day of September , 2006 .

COPIES FURNISHE D :

Marc Hughes

280 East Ten Mile Road

Pensacola, Florida 32534

John E. Griffin, Esquire

Carson & Adkins

2958 Wellington Circle, North, Suite 200

Tallahassee, Florida 32308 - 6885