12-003274 City Of Cape Coral vs. John Enrico Status: Closed DOAH Final Order on Monday, December 17, 2012.

Summary: The City of Cape Coral proved, by a preponderance of evidence, just cause for imposing discipline against John Enrico.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CAPE CORAL , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3274

)

JOHN ENRICO , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice to all partie s, the final hearing was

conducted in this case on November 28, 2012, in Cape Coral,

Florida, before the Honorable R. Bruce McKibben of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Gail G. Roberts, Esquire

City of Cape Coral

P ost O ffice Box 150027

Cape Coral, Florida 33915 - 0027

For Respondent: John Enrico, pro se

2614 Southwest 32nd Street

Cape Coral, Florida 33914

STATEMENT OF THE ISS UE

The issue in this case is whether the discipline imposed on

Respondent, John Enrico (ÐEnricoÑ), by Petitioner, City of Cape

Coral (the ÐCityÑ), was appropriate.

PRELIMINARY STATEMENT

This case is conducted by the Division of Administrative

Hearings (Ð DOAHÑ) , pursuant to an Administrative Law Judges

Services Contract (Contract No. C - 003) between the City and

DOAH, as amended by way of an addendum dated September 12, 2007.

This case commenced with the issuance of a memorandum to

Enrico from John Szerlag, City Manager, dated September 7, 2012 ,

and entitled ÐDecision on Appeal of Disciplinary Action.Ñ The

memorandum advised Enrico of the decision to impose discipline

against him and of his right to appeal the decision, a right

which Enrico exercised. Purs uant to the aforementioned

contract, EnricoÓs request for an appeal was forwarded to DOAH

for assignment of an Administrative Law Judge. The final

hearing was held at the time and place set forth above.

Enrico had filed a Motion in Limine the week prior t o the

final hearing , but the time for the CityÓs response had not yet

run before the hearing commenced. Enrico argued his motion at

final hearing; the City responded to the arguments. The motion

sought to limit testimony, evidence , and witnesses at final

hearing to a sing le issue, i.e., the tone or intent of the June

7, 2012 , email , between Enrico and his supervisors. Then,

throughout the final hearing , and in his proposed order

submitted thereafter, Enrico addressed and utilized the very

emails he sough t to prohibit in his motion in limine. The

motion in limine was denied . A lthough the June 7, 2012 , email

was indeed the primary focus of proceeding , o ther testimony and

evidence, however, was allowed for the purpose of showing

background and context for the June 7, 2012 , email.

At the final hearing, the City called three witnesses:

Jeff Pearson, utilities director; Brian Fenske (ÐFenskeÑ) ,

acting water reclamation superintendent; and Scott Slusser,

human resources specialist. Fenske was also recalled as a

rebuttal witness. Exhibits A, B, C, and Rebuttal E xhibit 1 ,

offered by the City were entered into evidence. Enrico

testified on his own behalf; his E xhibits 1 and 3 were entered

into evidence. EnricoÓs E xhibits 2 and 4 were accepted as

demonstrative exhibits only. EnricoÓs Exhibit 5 was not

accepted into evidence.

The final hearing was recorded by way of a digital

recorder. At the conclusion of the final hearing, copies of the

recording were provided by the City to Enrico and the

undersigned. Pursu ant to the contract between the City and

DOAH, DOAH has final order authority in these matters. Under

the contract, a final order should be entered within 10 days of

the final hearing. However, in this case, the undersigned gave

the parties 10 days from the date of the final hearing to submit

proposed orders (which were mistakenly called proposed

recommended orders). The proposed orders were due on

December 10, 2012. The parties each timely filed a proposed

final order , each of which was duly considere d in the

preparation of this Final Order.

FINDINGS OF FACT

Based upon the oral testimony and other evidence presented

at final hearing, the following findings of fact were made:

1. The City has the authority to monitor and regulate its

employees in accord ance with the laws and rules of the State of

Florida, the City Charter, and ordinances and rules promulgated

thereto.

2. Enrico is employed by the City as an instrumentation

supervisor in the Water Reclamation Division of the CityÓs

Utilities Department. He has been employed for an indeterminate

number of years, but is a Ðdirector levelÑ employee. 1/

3. The City suspended Enrico for one week without pay

pursuant to the City of Cape Coral Code of Ordinances, Article

III, Division 7, entitled Discipline of Regular Employees.

(Pertinent sections of the Code of Ordinances are set forth in

the Conclusions of Law, below.)

4. The alleged violation was primarily based on an email

Enrico sent on June 7, 2012. The June 7 email was sent to Jeff

Pearson and copied to Brian Fenske.

5. The June 7 e mail states in its substantive body:

Jeff and Brian,

As a courtesy, I am affording both of you a

small glimpse into a potential future.

If you decide to discipline me regarding my

communications outside of this depar tment,

please find below what is just the beginning

of the resistance you will meet in public

forums and otherwise.

As a friend, not as a contemporary [sic] , I

strongly advise you both not to pursue your

current course of action, as it would be

embarrassi ng and detrimental to the cities

[sic] interests.

Please feel free to call me and discuss the

matter.

Distinct Regards,

6. There was other information attached to the June 7

email, including some narrative by Enrico concerning his

rationale for send ing an earlier email, excerpts from OSHA

regulations and the City Code, and other legal information about

quasi - judicial matters, freedom of speech, and the International

Covenant on Civil and Political Rights. It is not clear whether

the additional infor mation was supposed to be support for

EnricoÓs actions , or a description of the ÐresistanceÑ the email

recipients could expect to meet in the future if they decided to

discipline Enrico.

7. In order to better understand the June 7 e mail, some

discussion of the background leading up to the email is

necessary.

8. Early in calendar year 2012, the City began looking at

a product called Multitrode. The product was to be used within

the CityÓs sewage system to, inter alia, control, monitor, or

report data reg arding usage. The system would have an impact on

the equipment and services overseen by Enrico.

9. Enrico was directed by Fenske to install the program

via email dated May 18, 2012. Enrico was apparently leaving for

a two - week vacation just hours after he received the email. He

attempted unsuccessfully to contact his superiors to express

some concerns he had about how the Multitrode was going to be

implemented. Enrico felt that the system had some potential to

do harm to the water reclamation system if installed or used

incorrectly. He was not able to reach his superiors.

10. Failing to reach his superiors, Enrico sent an email

dated May 23, 2012 , to Jody Sorrels, a civil engineer employed

by the City. 2/ The email was copied to Jeff Pearson, Brian

Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret

Krym (the City Manager). Except for Krym, all of the recipients

of the email were within EnricoÓs chain of command in his area

of employment. Krym was intentionally copied on the email by

E nrico because he wanted someone outside his chain of command to

know about his concerns. The Utilities Department did not

report directly to the City Manager. Enrico had been

disciplined previously for violating the chain of command

protocols.

11. The M ay 23 email contained EnricoÓs reasons for why he

did not think the Multitrode should be implemented. He did not

believe the program was appropriate or the best use of the

CityÓs money. He was concerned that if implemented improperly,

it might even cause significant problems for the wastewater

system. The email suggests that it is in response to an earlier

telephone conversation between Enrico and Sorrels.

12. EnricoÓs supervisors were concerned that Enrico had

intentionally chosen to copy the City Mana ger on the May 23

email. Inasmuch as Krym was not within EnricoÓs chain of

command and had no direct connection to the utilities

department, the supervisors felt like Enrico was again

attempting to circumvent protocol and create dissen s ion within

the City . As a result, the supervisors began to discuss what

sort of discipline should be imposed against Enrico for sending

the May 23 email.

13. After various discussions between Enrico and his

supervisors, cooler heads prevailed. A meeting was held on

June 19, 2012, wherein Enrico retreated from his stance and

acknowledged the impropriety of sending an email to the City

Manager concerning issues outside her area of concern. During

his testimony at final hearing, Enrico denied that he had

acknowledged it was wrong to copy Krym on the email. The most

persuasive evidence is that he did acknowledge his error. At

the conclusion of the June 19 meeting, the participants shook

hands and it was decided that no discipline would be imposed

against Enrico. EnricoÓs a cknowledgement of his error was a key

reason for his superiorsÓ decision not to impose discipline.

14. However, before the June 19 meeting, Enrico issued the

June 7 email. That email followed a June 6, 2012 , email ,

wherein Enrico notified Jeff Pearson t hat he needed to talk to

Pearson concerning the Multitrode program. The June 6 email

ended with Enrico stating, ÐI need a response (phone call) from

you by 9AM EST today to discuss the matter, or I may be forced

to escalate the issue appropriately.Ñ The June 7 email appears

to be the escalation he warned Pearson about.

15. The June 6 email references ÐMr. Sorrels [sic]

unwarranted and unprofessional email response.Ñ Sorrels had

sent an email to Enrico concerning EnricoÓs May 23 email.

SorrelsÓ email in cluded the statement, ÐI have neither the time

nor inclination to entertain an email chain concerning your

[EnricoÓs] metathesiophobia or ideophobia.Ñ Metathesiophobia

is the fear of moving or making changes. The origin of the word

meta is Greek (meaning to change), thes is Latin (meaning

setting) and phobia is Greek (meaning fear). Ideophobia is an

anxiety disorder characterized by the irrational fear or

distrust of ideas or reason. Enrico denied being afflicted with

either condition.

16. On June 5, 2 012, Enrico had responded to Sorrels,

copying Pearson and Fenske on an email accusing Sorrels of libel

and defamation. EnricoÓs email said that SorrelsÓ failure to

verbally apologize and write a retraction of his statements by

June 8 would result in Enric o referring the matter to the city

attorney and his own attorneys to seek unspecified damages.

17. This exchange was followed by the aforementioned

June 6 and June 7 emails. The June 7 email was apparently the

last straw for EnricoÓs supervisors and th ey decided to impose

discipline against him. After discussions with the human

resources department and city attorney, the city manager

approved a one - week suspension without pay as the appropriate

sanction.

18. Enrico denies the June 7 email was intended as a

threat, but that is how it was perceived by his superiors. The

language in the email about the Ðbeginning of the resistance you

will meet , Ñ and telling his superiors that ÐI strongly advise

you not to pursue your current course of actionÑ are both,

however, certainly threatening in nature. Though , Enrico said

that he did not threaten physical harm, thus there was no threat

at all, his testimony is not persuasive.

19. In defense of his actions, Enrico claims the City

violated his free speech rights under the United States

Constitution, his fair labor practices rights under the State

Fair Labor Law, and his rights under the Florida WhistleblowerÓs

Act, among other things. None of those defenses are germane to

the issue in this proceeding, nor does D OAH have jurisdiction

over those laws.

20. It is clear Enrico knows his area of employment and

may have some legitimate concerns about the Multitrode system

that was implemented. He may have personal feelings about the

fiscal propriety of the CityÓs use of the Multitrode system.

Enrico may not particularly like his superiors. However, those

feelings do not justify the use of threats.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over this matter based upon a

contract between DOAH and the City of Cape Coral.

22. Pursuant to the contract and related City Code

provisions, the final hearing shall be de novo in nature , and

the City has the burden of proof by a preponderance of the

evidence standard. The Administrative Law Judge shall issue a

Final Order including findings of fact and conclusions of law.

City of Cape Coral Code of Ordinances, Article III, Division 7,

§ 2 - 32.5(c).

23. The determination to be made by the Administrative Law

Judge is whether there is just cause for the discipline imposed.

I d .

24. The Code of Ordinances, Division 7 (Discipline of

Regular Employees), further states, in pertinent part:

§ 2 - 31.1

No disciplinary action shall be taken

against an employee with regular status

without cause. Disciplinary actions, in

increasing ord er of severity, shall consist

of oral reprimand, written reprimand,

suspension without pay, demotion, and

dismissal.

§ 2 - 31.2

Generally, the city shall follow a policy of

progressive discipline by which less severe

forms of discipline are imposed prior t o

resorting to the imposition of more severe

sanctions for the same or similar conduct by

the employee. The city, however, reserves

the right to impose even the most severe

discipline as an initial measure when

circumstances warrant.

§ 2 - 31.3

One or mor e of the following reasons shall

constitute cause for disciplinary action:

* * *

(d) Insubordination;

(e) Serious breach of discipline;

* * *

(y) Insulting, inflammatory, or abusive

language or conduct toward other city

employees or toward members of the public

while on duty;

* * *

(hh) Actions or conduct detrimental to the

interests of the city; and

(ii) Any other properly substantiated cause

which adversely affects the city.

25. The City provided uncontroverted testi mony that Enrico

had been previously disciplined for going outside his chain of

command. The nature of the prior discipline was not disclosed.

The proposed discipline in the present action follows the CityÓs

progressive discipline requirement.

26. The pl ain language of EnricoÓs June 7 email,

especially when considering the not - so - veiled threat in the

June 6 email, could reasonably be seen as insulting,

inflammatory, and/or abusive in nature. Enrico clearly tells

his superiors that Ðif you should decide to discipline me,Ñ then

this is Ðjust the beginning of the resistance you will meet.Ñ

Enrico then cites to various legal and quasi - legal documents,

seemingly in an effort to show what other ÐresistanceÑ the City

might face.

27. Though, as Enrico points o ut, he did not specifically

threaten any bodily harm to an individual, the City proved by a

preponderance of the evidence that Enrico acted in a fashion

that was both insubordinate and abusive. Further, his actions

were detrimental to the interests of the City.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that cause exists for the suspension of

Respondent, John Enrico, for one full work week without pay.

DONE AND ORD ERED this 17 th day of December , 2012 , in

Tallahass ee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17 th day of December , 2012 .

ENDNOTES

1/ In his proposed final order, Enrico states that he has been

employed since 2008, but there is no evidence in the recor d to

support that fact.

2/ If Enrico received the email directing him to implement the

system on May 18 and was leaving for vacation that very day, it

is unclear why his email was written on May 23. This

discrepancy was not clarified at final hearing.

COPIES FURNISHED :

John Enrico

2614 Southwest 32nd Street

Cape Coral, Florida 33914

Gail G. Roberts, Esquire

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affecte d by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrativ e Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district whe re the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.