09-004671 Emerald Coast Utilities Authority vs. Otis Paul Whatley Status: Closed Recommended Order on Tuesday, November 24, 2009.

Summary: Respondent filed for periods of overtime that he did not actually work. Petitioner was justified in its decision to discipline him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES )

AUTHORITY, )

)

Petitioner, )

)

vs. ) Case No. 09-4671

)

OTIS PAUL WHATLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on November 5, 2009, in Pensacola,

Florida.

APPEARANCES

For Petitioner: John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North

Suite 201

Tallahassee, Florida 32309

For Respondent: Otis Whatley, pro se

8655 Ramblewood Place

Pensacola, Florida 32514

STATEMENT OF THE ISSUE

The issue is whether the termination of Respondent, Otis

Paul Whatley, was in accordance with the personnel procedures

established by the Emerald Coast Utilities Authority.

PRELIMINARY STATEMENT

Emerald Coast Utilities Authority (ECUA) informed

Respondent Otis Paul Whatley (Mr. Whatley), of its intention to

terminate his employment effective at the close of business

August 14, 2009. This action was based on an allegation that

Mr. Whatley's conduct violated "Section F-4(4) [Conduct

Unbecoming an ECUA Employee] and Section F-4(13) [Falsification

of Records] of the ECUA Human Resources Policy Manual."

On August 21, 2009, Mr. Whatley asserted his right to a

hearing. Pursuant to an Administrative Law Judge Services

Contract, effective March 3, 2006, ECUA forwarded Mr. Whatley's

request for a hearing and allied papers to the Division of

Administrative Hearings in a letter dated August 24, 2009.

The matter was set for hearing on November 5, 2009, in

Pensacola, Florida, and heard as scheduled. ECUA offered and

had accepted into evidence nine exhibits. ECUA offered the

testimony of Cindy Sutherland, Harry Shoemore, and Ernest

Dawson. Mr. Whatley testified. He offered no exhibits and

called no witnesses. The law applicable to the hearing is

contained in ECUA's Human Resources Policy Manual.

FINDINGS OF FACT

1. ECUA was created in 1981 pursuant to Chapter 81-376,

Laws of Florida. By law, it provides utility services

throughout Escambia County, Florida.

2. Mr. Whatley was employed by ECUA. On October 31, 2001,

Mr. Whatley signed an acknowledgement that he received the ECUA

Employee Handbook. The ECUA Employee Handbook is a summary of

benefits, policies, procedures, and rules, which are more fully

set forth in ECUA's Human Resources Policy Manual.

3. While on the ECUA Rotation Schedule Standby List on

Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan

Wheat, were required to be available to make repairs when

summoned by ECUA customers.

4. Mr. Whatley submitted a Daily Overtime Report dated

July 26, 2009, which indicated that he worked on that day from

9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola,

Florida. The overtime report further stated that he worked from

10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola.

He further asserted that he worked at 402 West Lloyd Street,

from 6:00 p.m. until 11:00 p.m.

5. According to the Global Positioning System (GPS)

installed on the ECUA truck assigned to Mr. Whatley, he did not

depart his residence at the time he claimed to be working at

926 Lake Terrace or at 1283 La Paz Street. Moreover, the

evidence provided by the GPS indicated that he was at the

402 West Lloyd Street for four hours rather than the five

claimed as overtime.

6. Mr. Whatley's co-worker, Jonathon Wheat, did work at

926 Lake Terrace and at 1283 La Paz Street, but he worked alone.

Mr. Wheat joined in Mr. Whatley's prevarication with regard to

the quantity of time expended at 402 West Lloyd Street.

Mr. Wheat confessed to his prevarication when confronted.

Mr. Whatley lied about his whereabouts when initially

confronted, but eventually admitted that his timesheet contained

false entries.

7. It is found as a fact that Mr. Whatley, on his time

sheet for July 26, 2009, claimed one hour and a half overtime

for work at 926 Lake Terrace, one-half-hour overtime for work or

at 1283 La Paz Street, and an hour more overtime than actually

worked at 402 West Lloyd Street. None of the forgoing periods

were worked by Mr. Whatley. Accordingly, these entries on his

time sheet were false.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. See Administrative Law Judge Services Contract

effective March 3, 2006.

9. On page 32 of the ECUA Employee Handbook there is a

list of disciplinary offenses that may lead to suspension or

dismissal of an ECUA employee. Included on that list are

(4), Conduct Unbecoming an ECUA Employee, and (13),

Falsification of Records.

10. Section F-4 of the ECUA Human Resources Policy Manual,

entitled Disciplinary Offenses, lists as an offense, at

subparagraph (4), Conduct Unbecoming an ECUA Employee. This is

illuminated by the following:

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.

11. Section F-4 of the ECUA Human Resources Policy Manual,

entitled Disciplinary Offenses, lists as an offense at

subparagraph (13), Falsification of Records. This is

illuminated by the following:

The knowing, willful, or deliberate

misrepresentation or omission of any facts

with the intent to misrepresent, defraud or

mislead. Records include, but are not

limited to, Employment Applications,

Employee Attendance and Leave Reports,

Travel Vouchers, Requests for

Reimbursements, plant logs, operation logs

and other official records.

12. The falsification of overtime records engaged in by

Mr. Whatley constitutes "Conduct Unbecoming an ECUA Employee"

and "Falsification of Records," as described in both the ECUA

Employee Handbook and the ECUA Human Resources Policy Manual.

It is a serious offense warranting dismissal.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Executive Director of the Emerald

Coast Utility Authority, based on the findings of fact found

herein, impose such penalty on Otis Paul Whatley, as he or she

determines to be appropriate.

DONE AND ENTERED this 24th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of November, 2009.

COPIES FURNISHED :

Otis Whatley

8655 Ramblewood Place

Pensacola, Florida 32514

John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North, Suite 201

Tallahassee, Florida 32309

Stephen E. Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Post Office Box 15311

Pensacola, Florida 32514-0311

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.