07-001154 Emerald Coast Utilities Authority vs. John Crosby Status: Closed Recommended Order on Friday, August 31, 2007.

Summary: Respondent used a device to by-pass a water meter to receive free water. The contract reserves determination of discipline or penalty to Petitioner`s Executive Director.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES )

AUTHORITY , )

)

Petitioner, )

)

vs. ) Case No. 0 7 - 1154

)

JOHN CROSBY, )

)

Respondent. )

)

FINDINGS OF FACT AND

RECOMMENDED CO NCLUSIONS OF LAW

This cause came on for formal proceeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings , pursuant to a contract

entered into by the Petitioner Agency and the Divis ion of

Administrative Hearings, as provided in Section 120.65, Florida

Statutes (2006) . After proper notice, t he formal hearing was

conducted in Pensacola , Florida, on Ju ly 26 , 2007 . The

appearances were as follows:

APPEARANCES

For Petitioner: Joh n E. Griffin, Esquire

Carson & Adkins

2958 Wellington Circle, North

Suite 200

Tallahassee, Florida 32308 - 6885

For Respondent: Ronnie L. Williams, Esquire

814 Saint Francis Street

Mobile, Alabama 36602 - 1226

STATEMENT OF THE ISSUE S

The issues to be resolved in this proceeding concern

whether the Respondent is guilty of conduct which violates

certain provisions of the Emerald Coast Utilit ies Authorit y

(ECUA) policy manual amounting to conduct unbecoming an ECUA

employ ee; theft; and violation of ECUA rules or policies

concerning outside employment, by allegedly securing outside

employment without completing a proper form and receiving

advance approval for such outside employment.

PRELIMINARY STATEMENT

This cause arose upon the results of an investigation

whereby the above - named Petitioner Agency determined that its

employee, the Respondent, had allegedly engaged in the theft of

un - metered water on property owned by the Respondent and his

wife at 319 West Clay Street, Pe nsacola, Florida. The theft was

purportedly accomplished by the use of a "straight pipe" device

in the meter box , which allegedly allowed ECUA supplied water to

be diverted and no t metered, resulting in a pecuniary gain to

the Respondent . Additionally, i t was alleged by the Petitioner

that the Respondent violated the human resources policies of the

Petitioner by engaging in conduct involving securing outside

employment (with Tom Thumb Stores , Inc. ) without seeking advance

approval and without filing the a ppropriate outside employment

form with the Petitioner.

It is thus alleged that the Respondent, by securing a

special benefit for himself by obtaining free , un - metered water

through his action in using the straight pipe arrangement to

bypass the Petition er's water meter, violated the Petitioner's

code of ethics ; has engaged in conduct unbecoming a ECUA

employee; theft; and has violated Section A - 9(5) of the

Petitioner's policy manual by obtaining outside employment

without the approval of his employer .

T he cause came on for hearing as noticed. At the hearing

the Petitioner presented eight witnesses and 18 exhibits which

were admitted into evidence and the Respondent presented one

witness and had no exhibits . The record of the proceeding was

preserved by tape recording which has been supplied to the

undersigned. Additionally, the record of the proceeding was

kept open for a period of seven days after the hearing date of

July 26, 2007, in the event the Respondent wished to file a

written response to the P etitioner's Exhibit s 12 and 13 which

were admitted into evidence. No such responses were submitted

and the record closed as of the close of business on August 2,

2007. Accordingly, th ese Findings of Fact and Conclusions of

Law are now entered .

FINDINGS O F FACT

1. The Petitioner Emerald Coast Utilit ies Authorit y

(formerly Escambia County Utilities Authority) 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. I t is a Regional Water Supply Authority for purposes

of Sections 163.01 and 373.1962, Florida Statutes (2006). It is

thus given authority to supply utility services to persons and

businesses residing in a defined area in Escambia County,

Florida, including the provision of water utility service. It

is authorized in that Act to employ personnel to secure the

provision of such utility service s 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 3 , Chapter 112, Florida Statutes.

2. The Respondent , at times pertinent hereto , was a

utility service technician employed by the ECUA. During his

tenure with the ECUA he worked for a number of different

supervisors and essentially every district of the ECUA's service

area.

3. On April 1, 2006, the Respondent, John Crosby and his

wife Patricia Crosby, took title by deed to residential property

at 319 West Clay Street, in Pensacola, Florida. They begin

renovating that house located at that address for use as a

residence. Sometime during th e next several months , either

because work was being performed on the plumbing or because of

inability to pay the water bill, the Respondent had the water

service temporarily stopped . The account remained open,

however, and was not closed or inactivated o n the records of the

ECUA. There was an amount billed and outstanding which was

unpaid.

4 . On or about November 28, 2006, due to the unpaid water

bill becoming significantly delinquent, a "cut - off order" to

stop water service to the address at 319 West Clay Street was

issued and an employee of the ECUA, Donald George, was sent to

that address to cut - off the water service. When Mr. George went

to 319 West Clay Street and open ed the meter box , he saw a

"straight pipe" device installed in the meter box an d connected

to the water line from the street to the house. This straight

pipe , thus connected , had the effect of bypassing the water

meter so that any water used at that address or residence would

not be registered on the water meter and , therefore, it w ould be

impossible to bill for that water.

5 . Mr. George called his supervisor, Joe Creary, and asked

for instructions concerning this situation. Mr. Creary ordered

him to remove the water meter and leave the premises. The next

day he was sent back to those premises to turn the water off and

to take the straight pipe out of the water line and utility box.

He did so and gave the straight pipe device to Mr. Creary.

6 . Joel Roberts does Risk Management investigations , as

well as perform ing as a work pla ce Safety and T raining

S pecialist for the ECUA. He received a report regarding the use

of the straight pipe at 319 West Clay Street from Mr. Creary.

He went to that address and observed the straight pipe installed

in the water meter box in the water line to the house at that

address and took pictures of it and the residence. He prepared

an incident report and then made an investigation to establish

who the last customer of record was. The last customer of

record was the Respondent, John Crosby, who was still a customer

of record on November 28, 2006, when the straight pipe was

discovered. The photos of the straight pipe installed were

taken November 29, 2006, before it was removed by Mr. George.

7 . The Respondent acknowledged that he had a straight pip e

device in his possession. He kept it in his personal tool box.

He maintained that he used it for making emergency service calls

in the area near his home , using his own personal vehicle.

8 . He stated during the course of the investigation that

he did not know how his straight pipe device became installed at

the meter box at the subject property. He speculated that

someone was trying to cast him in a bad light or playing a joke

possibly, but he did not know who could have done it . During

the investiga tory phase of this proceeding , he acknowledged that

the straight pipe device was his own. Later, he changed his

story , to the effect that although he possessed a straight pipe

device kept in his personal tool box, that the one placed in the

meter box on h is water line was not the same one. H e maintained

that later contention through his testimony at hearing.

9 . Several of the ECUA regional supervisors testified,

essentially all of whom who had previously supervised the

Respondent. Uniformly they establi shed that there was no policy

which permitted employees , such as the Respondent , to use their

personal vehicle s to make service calls after regular working

hours or otherwise. They also established that there was no

policy which allowed employees to keep or maintain company

equipment in their personal possession away from the employment

premises of the ECUA as, for instance, a straight pipe device

such as the Respondent had possessed at times pertinent to this

proceeding.

10 . During a February 9th , 2007, hearing conducted by the

Petitioner, the Respondent denied placing the straight pipe in

the meter box and denied knowledge of who may have done so. He

did admit that the straight pipe was property of ECUA which he

had previously used in the performance of official duties after

hours when responding to "dirty water complaints." He admitted

that the straight pipe, ECUA property, had been kept in h is

personal tool box , but later he changed his story to say that

the straight pipe in the meter box was not his own because he

had since found his own straight pipe device in another tool

box.

11 . The fact remains, however, that the Respondent has had

difficulty in his ability to keep his water service account

current for the above address, and there is a delinque nt

outstanding balance on that account. The Respondent was the

only person who could have benefited from installing the

straight pipe in place of his water meter in order to obtain

water free of charge, which he did.

12 . While it is possible that anothe r person installed the

straight pipe in place of the Respondent's water meter and that

the testimony of the Respondent's fellow employees is

untruthful, the preponderant, persuasive evidence reflects that

the Respondent had the greatest motive and the best opportunity

to install the straight pipe device and to thus wrongfully

obtain free water service at his property. His explanations of

how the straight pipe device might have been theoretically

placed by some unidentified third party is self - serving

testi mony . It is testimony which defies logic and which is out -

weighed by that of his co - workers to the contrary. The

Respondent's testimony in these particulars is thus discounted

and not accepted because of insufficient credibility .

13 . It has thus been established by preponderant,

persuasive evidence that the Respondent is the party who

installed the straight pipe device in the water meter box at the

property at 319 West Clay Street, Pensacola, Florida , in order

to divert un - metered water to the use of persons at that

property which belonged to the ECUA. Such water has not been

paid for in accordance with the approved rate structure of the

ECUA for metered water.

14 . The testimony of Tina Shelton establishes that the

Petitioner has adopted a code of ethics and a body of personal

rules and regulations. These are incorporated in its Human

Resources Policy Manual. She establish ed that the current

M anual is supplied to all employees ; and also established ,

through Petitioner's Exhibit 11 and her testimon y , that the

Respondent received the Manual on July 20, 1999. She also

established that the Respondent's outside employment with Tom

Thumbs Stores, Inc., has not been the subject of any approval

form submitted by the Respondent. She established that outsi de

employment had not been approved by the Petitioner and that

therefore the Respondent has violated Section A - 9(5), of the

referenced manual concerning outside employment.

CONCLUSIONS OF LAW

15 . The Petitioner Agency has adopted personnel rules and

regulations and a code of ethics embodied in its Human Resources

Policy Manual. Such rules and regulations in the policy manual

are adopted pursuant to the ECUA's authority provided in Chapter

81 - 376, Laws of Florida, as amended. See also §§ 163.01 and

373.1962, Fla. Stat (2006). The code of ethics embodied in that

policy manual is in accord with Part 3, Chapter 112, Florida

Statutes .

16 . The preponderant, persuasive evidence culminating in

the above Findings of Fact establishes that the Respondent has

committed conduct amounting to a violation of the code of ethics

embodied in Section A - 5(B) of the M anual ; has committed conduct

unbecoming an ECUA employee for purposes of Section F - 4(4); has

been guilty of theft for purposes of Section F - 4(27); and

beca use of these matters has also d erivatively violated " ECUA

rules or policies " for purpose s of Section F - 4(33). Such

violations are predicated on the factual findings that the

Respondent installed the straight pipe device in his water meter

box and on his w ater line in order to avoid " and did avoid " the

metering and proper billing of water used by him or others on

his property. This conduct amounts to a violation of the

sections referenced above of the subject policy manual.

17 . Additionally, the preponder ant, persuasive evidence of

record also establishes a violation of Section F - 4(19) of the

manual because of proof that the Respondent engaged in

unauthorized use of ECUA property or equipment by retaining

possession of an ECUA issued device, the straight p ipe device,

without authorization. He used it to secure a special benefit

for himself, free unmetered water at his property at 319 West

Clay Street, in Pensacola , Florida, to the detriment of his

employer, the Petitioner.

18 . It has also been established that he violated Section

A - 9(5) of the policy M anual by engaging in outside employment

without having secured approval in the proper fashion , or at

all , from the Petitioner ECUA. This finding relates to the

established fact that he was employed by Tom Th umb Stores , Inc.,

without receiving advanced approval for outside employment from

the Petitioner.

19 . It has been established by Petitioner's Exhibit 18 in

evidence that the Respondent has a prior disciplinary history.

That disciplinary history reflects that on April 25, 2002, he

was determined to have been loud, angry, and disrespectful in

front of his supervisors and co - workers. He also was found to

have falsified ECUA records on January 28, 2003.

20 . In summary, the Respondent is concluded to have

vi olated the policy manual rules and regulations referenced -

above . In accordance with the contract between the Division of

Administrative Hearings and the Emerald Coast Utilities

Authority , it is the province of the Respondent's employer, the

Petitioner , to determine what, if any, disciplinary action to

take pursuant to the above Findings of Fact and Conclusions of

Law.

DONE AND ENTERED this 31st day of August , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHA EL RUFF

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.sta te.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 31st day of August , 200 7 .

C OPIES FURNISHED :

John E. Griffin, Esquire

Carson & Adkins

2958 Wellington Circle, North

Suite 200

Tallahassee, Florida 32308 - 6885

R onnie L. Williams, Esquire

814 Saint Francis Street

Mobile, Alabama 36602 - 1226

Stephen E. Sorrell, Executive Director

Emerald Coast Utilities Authority

Post Office Box 15311

9255 Sturdevant Street

Pensacola, Florida 32514 - 7346

NOTICE OF RIGHT TO W RITTEN ARGUMENT

All parties have the right to submit written argument as to

appropriate penalty within 10 days from the date hereof. Any

written argument should be filed with the executive director of

the Emerald Coast Utilities Authority.