12-002915 Emerald Coast Utilities Authority vs. Michael A. Emmons Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, October 18, 2012.

OnOM & BARLOW, P.A.

ATTORNEYS AT LAW

1800 NORTH "E" STREET

PENSACOLA, FLORIDA 3250f I LED

BRADLEY S. ODOM* TELEPHONE: FACSIMILE: (850) [phone] 434-3527

RICHARD D. BARLOW 2Ull DEC 17 pm, E-MAIL: email(ii)odombarIow.com

ROBERT 11: Also licensed W. in KIEVIT" Alabama: December 14, 2012 " 1. 2 13

uOf Counsel

Claudia Llado

Clerk of the Division

State of Florida

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Re: Emerald Coast Utilities Authority v. Michael A. Emmons

DOAH Case Number: 12-2915

Dear Ms. Llado:

Administrative Law Judge Diane Cleavinger rendered an Order Closing File in the

above-referenced matter on October 18, 2012, which for reasons articulated in the

enclosed has been deemed a Recommended Order. Subsequent thereto, the Emerald

Coast Utilities Authority (ECUA) entered a Final Order on December 12, 2012. Pursuant

to Section 120.57(1)(m) you are hereby being provided a copy of that Final Order.

Should you have any questions please do not hesitate to contact me.

fit_/ _

Bradley S. om

ECUA G neral Counsel

BSO:cab

Enclosure

cc: Linda Iversen (w/o encl.)

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVEHEARlNGS

EMERALD COAST UTILITIES

AUTHORITY, FILED

Petitioner, lGIl OEC 17 PrJ 12 19

Oi SiGN OF

v. ADMINISTRAT'IVE DOAH Case No.: 12- 2 9 1 5

MICHAEL A. EMMONS, HEARiNGS

Respondent.

-----------/

FINAL ORDER

Petitioner, Emerald Coast Utilities Authority (hereinafter either "ECUA" or

"Petitioner"), terminated Respondent, Michael A. Emmons (hereinafter either

"Emmons" or "Respondent"), from his employment with ECUA effective at the close of

business on August 24, 2012. Emmons timely requested a hearing in order to appeal his

termination, and his case was forwarded to Florida Division of Administrative Hearings

to conduct a hearing and issue findings of fact and recommended conclusions of law.

After being properly noticed, a formal hearing was held in this cause on October 15, 2012

in Pensacola, Florida, before Diane Cleavinger, Administrative Law Judge with the

Florida Division of Administrative Hearings, which Emmons elected not to attend.

Three days later, on October 18, 2012, Judge Diane Cleavinger submitted an

Order Closing File, which for reasons set forth below is deemed a Recommended Order.

Pursuant to Section 120.57(1)(k), Florida Statutes, the Parties had 15 days within

which to submit written exceptions to the Recommended Order. That time-frame has

expired, with only Petitioner's having filed a submission. Emmons also filed no

response to Petitioner's exceptions. See Rule 28-106.217(3), Florida Administrative

Code (affording" party 10 days from the filing of the other party's exceptions to respond

to those exceptions).

FINDINGS OF FAQT

1. Emmons was a Residential Services Supervisor who had a

predetermination/liberty interest (name clearing) hearing held on August 24, 2012.

After that hearing, he was terminated effective at the close of business on August 24,

2012 and notified of that fact via correspondence dated August 27, 2012. (See,!h&.,

Exhibit 4).

2. On September 4, 2012, Emmons submitted a written request to ECUA's

Director of Human Resour.ces and Administrative Services (hereinafter "HR Director")

appealing disciplinary action taken against him in his employment with ECUA.

3. That same date, ECUA requested the services of an Administrative Law

Judge (hereinafter "ALJ") from the Florida Division of Administrative Hearings

("DOAH") to conduct an evidentiary hearing and issue a Recommended Order to

ECUA's Executive Director pursuant to the Administrative Law Judge Services Contract

previously entered into between ECUA and DOAR.

4. DOAH assigned an ALJ to preside over the matter, who in turn issued a

Notice of Hearing scheduling an evidentiary hearing to take place beginning at 10:00

a.m. on October 15, 2012 in ECUA's Board Room.

5. EGpA was present and ready to proceed with the evidentiary hearing at

the appointed time and place, yet neither Emmons nor anyone acting on his behalf

appeared. Furthermore, no one had heard from Emmons.

6. After waiting fifteen (15) minutes after the designated start-time for the

hearing, neither Emmons nor anyone acting on his behalf had been heard from.

7. Thereafter, the AU called the hearing to order, and ECUA proffered

witness testimony and admitted exhibits into the record. The record established the

following:

a. Emmons was a Residential Services Supervisor in ECUA's

Sanitation Department.

b. On March 28, 2012 Emmons was notified by a Sanitation

Equipment Operator under his supervision that his truck (Truck #43B), had broken

down. After Emmons arrived on the scene in ECUA Truck #l1C, he went to sleep while

on duty.

c. Emmons slept for approximately twenty to thirty minutes, and his

vehicle, Vehicle #l1C, was idling with the air conditioner on throughout this time.

d. While Emmons slept, an ECUA employee photographed him.

e. This was not the first time Emmons had slept while on duty;

instead, in the Summer of 2011 Emmons was observed sleeping in his ECUA-assigned

vehicle by another ECUA employee.

f. Furthermore, within the past twelve months Emmons was observed

by ECUA employees reclined with his eyes closed for an extended period of time on two

other occasions during the past twelve months.

g. Additionally, in 2010 a photograph of Emmons apparently sleeping

on duty was brought to one of his superiors' attention. In this instance, Emmons was

cautioned that it was completely unacceptable for a supervisor to be sleeping anywhere

at any time while on duty and that if this were to happen again disciplinary action would

be imposed.

h. ECUA issued a written notice of predetermination hearing to

Emmons on August 21, 2012 regarding contemplated disciplinary action for violations of

Section B-13A(4) [Conduct Unbecoming an ECUA Employee], Section B-13A(18)

[Loafing], Section B-13A(21) [Neglect of Duty], Section B-13A(25) [Sleeping on Duty],

and Section B-13A(33) [Violation of ECUA rules or policies] of ECUA's Human

Resources Manual.

1. Section B-37(A) of ECUA's Human Resources Manual additionally

provides that ECUA employees shall avoid unnecessary vehicle idling and prohibits

allowing a vehicle to idle solely to operate the air conditioner for the comfort of the

vehicle's occupants.

J. Emmons knew of the above-referenced provisions of ECUA's

Human Resources Manual by virtue of the fact that he had received it, as well as the fact

that the substantive provisions of it applicable to his sleeping on duty had been

previously discussed with at least one of his superiors.

k. Upon proper notice a predetermination hearing was held on August

24, 2012, and thereafter a written notice of disciplinary action was issued to Emmons on

August 27, 2012 notifying him that his conduct violated Sections B-13A(4), (18), (21),

(25), and (33) ofECUA's Human Resources Manual.

8. The hearing was closed at approximately 10:27 a.m.

9. Based upon a review of the record, the evidence shows that Emmons'

conduct was violative of Sections B-13A(4) [conduct unbecoming an ECUA employee],

Section B-13A(18) [loafing], Section B-13A(21) [neglect of duty], Section B-13A(25)

[sleeping while on duty], Section B-13A(33) [violation of ECUA rules or policies], and

Section B-37 [vehicle and equipment idle reduction] of ECUA's Human Resources

Manual. (See ECUA ex. 5, 6). The evidence further shows that you were aware of these

provisions within the Human Resources Manual. (See ECUA ex. 7).

10. Two days later, on September 17, 2012, R. John Westberry, Esq., entered

an appearance on behalf of Emmons and filed a Notice of Voluntary Dismissal on his

behalf. In neither of these filings was any justification proffered for Emmons' having

failed to appear at the scheduled evidentiary hearing. Additionally, good cause was not

shown for Emmons' attorney having failed to appear at the hearing (although it is

unclear whether the attorney had been retained at that time).

11. Nevertheless, on October 18, 2012 the AU rendered an Order Closing File

ostensibly dismissing the matter.

CONCLUSIONS OF LAW

12. The Division of Administration Hearings had jurisdiction to conduct an

evidentiary hearing and issue a Recommended Order in this proceeding pursuant to the

Administrative Law Judge Services Contract entered into between ECUA and DOAH

which became effective March 3, 2006. Administrative Law Judge Services

Contract; Fla. Stat. § 120.65(7).

13. In pertinent part, that contract provides:

The AU will issue findings of fact and recommended conclusions of law to

the Executive Director within thirty (30) days after the close of the hearing

record. Based upon the findings of fact and recommended conclusions of

law, the AU will determine whether the employee has committed the

violation as charged, but the AU will not comment on, or recommend, any

disciplinary penalty.

14. Nowhere in the Administrative Law Judge Services Contract does it

provide that the AW may dismiss the case after the close of the hearing. Moreover,

nothing in that contract empowers the AW to take any final action in the matter, as the

AW's authority merely extends to issuing findings of fact and recommended conclusions

oflaw. As a result, I have deemed the AW's purported Order Closing File dated October

18,2012 to be a Recommended Order.

15. In the instantease, Emmons requested an evidentiary hearing, but he

failed to appear at the designated time and place for the hearing which he requested.

Although Emmons sought to unilaterally dismiss his petition, he failed to do so until two

days after the scheduled hearing date. He did not have the unilateral right to cancel that

hearing after-the-fact without good cause, which he has clearly not shown here. See,

John Ziolkowski v. Park Shore Landing Condominium Ass'n, Case No. 10-9509

(DOAH Mar. 8, 2011) (explaining that a party who fails to appear at a scheduled

administrative hearing must demonstrate a reasonable excuse and good circumstances

whiCh prevented him from appearing); LesaPatterson v. Panama City Housing Auth.,

Case No. 10-8661 (DOAH Oct. 21, 2010), adopted in Final Order 11-001 (FCHR Jan. 13,

2011); Crump v .. Majestic Tower at Bal Harbour, FCHR Order No. 10-702 (FCHR Sept.

21,2010); Bermudez v. Lake County Housing Auth., FCHR Order No. 10-041 (FCHR

Apr. 27, 2010); Cowden v. Difiglio,FCHROrder No. 09-115 (FCHR Dec. 14, 2009); Scott

v. Two Men and a Truck, FCfIR Order No. 09-009 (FCHR Jan. 27, 2009); Prek v.

Workforce Central Fla., FCHR Order No. 06-079 (FCHR Sept. 18, 2006). See also,

Rule 28-106.210, Florida Administrative Code (indicatingthat a continuance must be

made at least five days prior to the noticed hearing, absent an emergency).

16. In the instant case, Emmons requested the hearing which he failed to

attend. No good cause has been shown for that failure.

17. Petitioner prepared for that hearing and was present at the appointed time

and place for that hearing, despite the fact that Emmons apparently had no intention of

attending. It proffered testimony and offered exhibits which were received into

evidence.

18. The only competent, substantial evidence presented at that hearing

showed that Emmons' actions constituted violations of Sections B-13A(4), B-13A(18), B-

13A(21), B-13A(2S), B-13A(33), and B-37 of ECUA's Human Resources Policy Manual.

BASED ON THE FOREGOING, it is ORDERED:

That the termination of Respondent is appropriate and warranted. Accordingly,

the termination of employment of Michael A. Emmons is hereby upheld and affirmed,

and he shall go forth without day.

11..

DONE AND ENTERED this let - day of December, 2012.

Stel)h;Ji.SOfiell, P.E., M.P.A.

Executive Director

Emerald Coast Utilities Authority

Linda G. Iversen

Executive Assistant

to the Board

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS

ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY

FILING ONE COpy OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF

ECUA, AND A SECOND COpy ALONG WITH FILING FEE AS PRESCRIBED BY

LAW, WITH THE CIRCUIT COURT OF ESCAMBIA COUNTY. REVIEW

PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE

FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED

WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Michael A. Emmons Cindy Sutherland

Post Office Box 18459 Emerald Coast Utilities Authority

Pensacola, Florida 32523 9255 Sturdevant Street

Pensacola, Florida 32514

John E. Griffin, Esq.

Carson & Adkins

2930 Wellington Circle, North, #201

Tallahassee, Florida 32300

R. John Westberry, Esq.

Westberry and Connors, LLC

3000 Langley Avenue, Suite 300

Pensacola, Florida 32504