10-006054 Emerald Coast Utilities Authority vs. Ron E. Williams Status: Closed Recommended Order on Thursday, November 4, 2010.

Summary: Employee violated two provisions of the ECUA Resource Policy Manual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST )

UTILITIES AUTHORITY , )

)

Petitioner , )

)

vs. ) Case No. 10 - 6054

)

R ON E . WILLIAMS , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursu ant to notice , a hearing was conducted in this case on

October 6, 2 010, in Pensacola, Florida, before Barbara J.

Staros , Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John E. Griffin, Esquire

Carson & Adkins

2930 Wellington Circle, North

Suite 201

Tallahassee, Florida 32309

For Respondent: Ron E. Williams , pro se

7041 Andros Drive

Pensacola , Florida 3250 6

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent has

committed the violation s as charged .

PRELIMINARY STATEMENT

By certified letter dated July 16 , 20 10 , Respondent , Ron E .

Williams , was notified that Petitioner , Emerald Coast Utility

Authority (ECUA), intended to terminate him fr om employment .

The letter stated that ECUAÓs action was based on ECUA Human

R elations Policy Manual, Section F - 4( 4 ) for C onduct U nbecoming

A n E mployee and Section F - 4(33) for violation of ECUA Rules or

Policies or State and Federal Law . These violations were b ased

upon a conviction of a third - degree felony . The letter also

advised Respondent of his right to a predetermination/liberty

interest hearing.

On July 13 , 20 10 , a predetermination/liberty interest

hearing was held in ECUAÓs Board Room . Respondent participated

in the hearing.

After the hearing, by certified letter dated July 16 , 20 10 ,

Respondent was termina ted for violations of the above - referenced

sections of the ECUA Policy Manual. The letter further advised

Respondent of his right to appeal PetitionerÓs emplo yment action

an d request a f ormal he aring before an Administrative Law Judge

with the Division of Administrative Hearings (DOAH) .

By letter dated July 1 9 , 20 10 , Respondent timely filed a

request for hearing. The case was forwarded to D OAH on or about

July 22, 2010 .

A Notice of hearing was issued on July 27, 2010, scheduling

the hearing for October 6, 2010. The hearing took place as

scheduled. The hearing was electronically recorded , but not

transcribed . At the hearing, Petitioner presented the testimony

of Deputy Ronald Ross of the Escambia County Sherriff's Office ;

Randall Rudd , ECUA Sanitation Director ; and Richard C. Anderson ,

ECUA Human R esources Director . Petitioner 's E xhibits numbered 1

through 7 were admitted into evidence. Respondent testified o n

his own behalf . Respondent's Exhibit numbered 1 was admitted

into evidence. Official Recognition was taken of Chapter 81 -

376, Laws of Florida, Section 827.03(1), Florida Statutes, and

the on - line docket maintained by the Escambia County Clerk of

Court in the cas e of State of Florida v. Ron Edward Williams ,

Case. No. 2009 - CF - 005673 - A.

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. I n July 2 00 8 , Respondent was hired by Petitioner as a

sanitation equipment operator . At the time, Respondent was

given a copy of the employee handbook . R eceipt of this document

was acknowledged by Respondent.

3. The handbook is a summary of PetitionerÓs human

resource policies. Specific human resource policies are

contained in PetitionerÓs Human Resource s Poli cy Manual. The

July 16, 2010 letter , which informed Petitioner of his

termination, cited to the following p rovisions of the Human

Resource s P olicy 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 affect s 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 t he 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, o r actual knowledge of and

failure to take corrective action or report

rule violations and employee misconduct.

4 . 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.

5 . On November 30, 2009, Respondent was arrested and

charged with 1) " s exual a ssault/ s exual battery, victim over 12

years of age, physical force " ; and 2) " c ruelty toward child

abuse without great harm. "

6. 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, th is charge

w as dropped, resulting in no conviction of this charge.

7. Also o n 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 o f this charge, which is a third - degree felony. The

court placed Respondent on probation for three years.

8. 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.

9. 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 . A cc ording 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.

10. Despite Respondent's initial reluctance to admit to

the offense, Deputy Ross described Respondent as very

cooperative during the interview.

11. At hearing, Respondent did not wish to discuss the

spe cific 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 h is attorney to go to trial. Despite the

above, Respondent is remorseful for his actions.

12. 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 f e lony who was fired. There is no evidence

in the record to establish whether Respondent was treated any

differently than other emplo yees who were convicted of offenses

of the same category, i.e. , third degree felonies.

13. 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 sent ence for that crime.

He disclosed his criminal background to ECUA when he was hired.

14. 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.

15. 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.

16. 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.

17. 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 .

CONCLUSIONS OF LAW

18 . 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 ; § 120.65(7 ), Fla. Stat. (20 1 0) . ECUA

has the burden of proof by a preponderance of the evidence. See

Paragraph 7(j), contract between ECUA and DOAH.

19 . As set forth above, ECUA relied on Section F - 4(4),

C onduct U nbecoming an ECUA E mployee, and Section F - 4(33),

V iolation of ECUA R ules or P olicies or S tate or F ederal L aw of

the ECUA Human Resource Policy Manual .

20 . Chapter F of the ECUA Human Resource Policy Manual

also provides for progressive and cumulative discipline, and

reads in pertinent part:

Section F - 1 Progressive and Cumulative

Discipline

In determining the severity of the

discipline to be applied, the supervisor

should take into account the following

variables:

(a) The seriousness of the offense.

(b) The circumstances surrounding the

offense.

(c) The effect of the employee's actions on

the ECUA's operations and ability to carry

out its responsibilities, and on other

employees.

(d) The overall work record of the

employee.

(e) If the offense is not a first offense

for the employee, the length of time since

earlier disciplinary actions, the similarity

or dissimilarity of offenses, and the

severity of earlier offenses shall be

considered.

(f) Other factors may be considered as

appropriate.

Progressive discipline is based on the idea

tha t once employees have been informed of

the performance and behavior e x pected of

them, discipline will generally be

administer e d progressively from minor to

major penalties. However, the seriousness

of the offense or the cumulative nature of

the offense in light of the employee's

disciplinary history may warrant more severe

discipline eliminating progressive

discipline as an option.

For example, major disciplinary infractions,

because of their serious nature, may warrant

suspension or dismissal on the f irst

occurrence even though the employee has no

prior record for discipline. . . .

21. Regarding the determination that Respondent violated

Section F - 4 (4), conduct unbecoming an ECUA employee, the

preponderance of the evidence establishes that Respondent did

violate this polic y. Because of the nature of his job which

requires regular contact with the public, h is conduct comes

within the phrase "conduct which has a tendency to destroy

public respect or confidence in the ECUA" of Section F - 4(4) o f

the ECUA Human Resources Policy manual.

22. Regarding the determination that Respondent violated

Section F - 4 (33), violation of ECUA rules or policies or state

or federal law, Respondent's conviction of a third - degree felony

violated state law . Thus, RespondentÓs act violated Section F -

4(33) of the ECUA Human Resources Policy Manual.

23. Finally, Section F - 1 of the ECUA Human Resource Policy

Manual also comes into play. Respondent does not have any

previous disciplinary actions against him while an employee of

ECUA. Thus, the progressive discipline policy does not apply.

24. In making the final determination as to appropriate

penalty, Section F - 1(f) instructs that the seriousness of the

offense must be determined in making the decision as to w hether

"suspension or dismissal on the first occurrence even though the

employee has no prior record for discipline" is warranted.

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 H uman

Resource P olicies F - 4 (4) and (33) and impose such discipline on

Respondent as determined appropriate under the provisions of the

Hu man Resource Policy Manual .

DONE AND ENTERED this 4 th day of November , 20 10 , 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 4 th day of November , 2010 .

COPIES FURNISHED :

John E. Griffin, Esquire

Carson & Adkins

29 30 Wellington Circle, North, Suite 201

Tallahassee, Florida 32309

Ron E. Williams

7041 Andros Drive

Pensacola , Florida 325 06

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

NOTICE OF RIGHT TO SUBMIT WRITTEN ARGUMENT

Pursuant to Paragraph 7(m) of the contract between ECUA and

DOAH, a ll parties have the right to submit written argument

within 10 days of the issuance of this Recommended Order with

the Executive Director of the ECUA as to any appropriate penalty

to be imposed. The Executive Director will then determine the

appro priate level of discipline to be imposed upon the

Respondent.