13-001549
Alisha Fessel vs.
City Of Cape Coral
Status: Closed
DOAH Final Order on Friday, September 13, 2013.
DOAH Final Order on Friday, September 13, 2013.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ALISHA FESSEL,
10Petitioner,
11vs. Case No. 13-1549
15CITY OF CAPE CORAL,
19Respondent.
20/
21Pursuant to the agreement of the parties, no formal hearing
31was held in this case. Rather, the parties submitted the case FINAL ORDER
44for decision by Administrative Law Judge Lynne A. Quimby-Pennock
53based on a Stipulated Record filed on August 22, 2013, and
64submitted proposed final orders.
68APPEARANCES
69For Petitioner: Richard Siwica, Esquire
74Egan, Lev and Siwica, P.A.
79231 East Colonial Drive
83Orlando, Florida 32801
86For Respondent: Gail G. Roberts, Esquire
92City of Cape Coral
961015 Cultural Park Boulevard
100Cape Coral, Florida 33990
104STATEMENT OF THE ISSUE
108The issue in this case is whether the discipline imposed on
119Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the
"129City"), was appropriate.
133PRELIMINARY STATEMENT
135This case is conducted by the Division of Administrative
144Hearings (DOAH), pursuant to an Administrative Law Judges
152Services Contract (Contract No. C-003) between the City and DOAH,
162as amended by way of an addendum dated September 12, 2007.
173This case commenced with the issuance of a letter to
183Petitioner, which advised Ms. Fessel of the decision to terminate
193her employment and provided her the ability to seek a review. On
205April 18, 2013, Ms. Fessel sought an appeal of the city manager's
217decision, and that appeal was forwarded to DOAH for assignment of
228an Administrative Law Judge.
232A final hearing was scheduled for August 9, 2013; however,
242on August 8, 2013, the parties filed a joint motion seeking to
254cancel the hearing and requesting that the parties be allowed to
265submit the case on a stipulated record. Following a telephonic
275case conference, an Order Canceling Hearing was issued, and the
285parties were directed to submit the stipulated record on or
295before August 22, 2013. The Stipulated Record was filed on
305August 22, 2013. Included with the Stipulated Record were two
315exhibits. 1/ Exhibit 1 was a copy of Article III, Personnel Rules
327and Regulations of the City's Code of Ordinances. Exhibit 2 was
338a copy of the agreement between the International Union of
348Painters and Allied Trades AFL/CIO- District Council #78, Local
357Union 2301 (representing the "Blue Collar" Unit) (the Union), and
367the City of Cape Coral, Florida, dated October 1, 2009, through
378September 30, 2011. 2/ Thereafter, the parties were ordered to
388file proposed final orders on or before Friday, September 6,
3982013. Respondent filed its proposed final order on September 5,
4082013. That same day Petitioner filed an "Unopposed Motion for a
419One Day Extension of Time to File Proposed Final Order." The
430motion was granted, and Petitioner filed her proposed final order
440on September 9, 2013. Each has been considered in the
450preparation of this Final Order.
455FINDINGS OF FACT
458Based on the Stipulated Record, the following Findings of
467Fact are made:
4701. The City has the authority to monitor and regulate its
481employees in accordance with the laws and rules of the State of
493Florida, the City Charter, and ordinances and rules promulgated
502under the Charter.
5052. Ms. Fessel was employed by the City as an administrative
516secretary in the City's Police Department, and she was a member
527of the Union.
5303. Ms. Fessel had been counseled and disciplined on several
540occasions regarding her work performance and behavior pursuant to
549the City's personal rules and regulations as codified in the City
560of Cape Coral Code of Ordinances and the Cape Coral Police
571Department General Orders.
5744. All disciplinary proceedings against Ms. Fessel were
582initiated under the City of Cape Coral Code of Ordinances,
592Chapter 2, Article III, Division 7, entitled, Discipline of
601Regular Employees, and pursuant to the collective bargaining
609agreement between the City and the Union.
6165. On September 30, 2011, Ms. Fessel was placed on a
627120-day performance improvement plan.
6316. On November 2, 2012, Ms. Fessel was suspended for
64140 hours.
6437. On March 7, 2013, Ms. Fessel was placed on
653administrative leave with pay.
6578. On March 12, 2013, Ms. Fessel remained on paid
667administrative leave while the City conducted a pre-disciplinary
675hearing.
6769. On April 18, 2013, Ms. Fessel's employment with the City
687was terminated.
68910. The parties have stipulated:
694The underlying discipline is not being
700challenged; rather, Petitioner [Ms. Fessel]
705contends that the suspension with pay during
712the period March 7, 2013[,] up to and
721including April 18, 2013, constituted
726disciplinary action barring any further
731discipline (i.e., Fessel's termination on or
737about April 18, 2013) for the same actions.
745CONCLUSIONS OF LAW
74811. DOAH has jurisdiction over this matter based upon a
758contract between DOAH and the City of Cape Coral. Pursuant to
769the contract and related City Code provisions, the City has the
780burden of proof by a preponderance of the evidence standard. The
791Administrative Law Judge shall issue a final order, including
800findings of fact and conclusions of law. City of Cape Coral Code
812of Ordinances, Article III, Div. 8, § 2-32.5(h).
82012. The determination to be made by the Administrative Law
830Judge is whether there is just cause for the discipline imposed.
841Id.
84213. The Code of Ordinances, Division 7 (Discipline of
851Regular Employees), further states, in pertinent part:
858§ 2-31.1
860No disciplinary action shall be taken
866against an employee with regular status
872without cause. Disciplinary actions, in
877increasing order of severity, shall consist
883of oral reprimand, written reprimand,
888suspension without pay, demotion, and
893dismissal.
894§ 2-31.2
896Generally, the city shall follow a policy of
904progressive discipline by which less severe
910forms of discipline are imposed prior to
917resorting to the imposition of more severe
924sanctions for the same or similar conduct by
932the employee. The city, however, reserves
938the right to impose even the most severe
946discipline as an initial measure when
952circumstances warrant.
954§ 2-31.3
956One or more of the following reasons shall
964constitute cause for disciplinary action:
969(a) Incompetence or continued rendering of
975unsatisfactory service after instruction
979and/or counseling;
981(b) Gross neglect of duty or specific
988serious failure to perform assigned duties.
99414. The Code of Ordinances, Division 11 (Attendance and
1003Leave), further states, in pertinent part:
1009§ 2-35.12 Administrative Leave
1013The City Manager may grant an employee up to
1022a maximum of 60 days of paid leave per
1031fiscal year when the City Manager believes
1038said grant to be in the city's best
1046interest.
104715. The parties stipulated that Ms. Fessel had been
"1056counseled and disciplined on several occasions regarding her
1064work performance and behavior." Further, the parties stipulated
1072that Ms. Fessel "was placed on administrative leave with pay on
1083March 7, 2013." (emphasis added).
108816. The City met its burden of proof by a preponderance of
1100the evidence. The stipulated evidence proves that Ms. Fessel was
1110placed on administrative leave with pay and, thereafter,
1118terminated. There was no discipline imposed until the
1126termination of her employment.
1130ORDER
1131Based on the foregoing Findings of Fact and Conclusions of
1141Law, it is ORDERED that just cause exists for the employment
1152termination of Ms. Fessel.
1156DONE AND ORDERED this 13th day of September, 2013, in
1166Tallahassee, Leon County, Florida.
1170S
1171LYNNE A. QUIMBY-PENNOCK
1174Administrative Law Judge
1177Division of Administrative Hearings
1181The DeSoto Building
11841230 Apalachee Parkway
1187Tallahassee, Florida 32399-3060
1190(850) 488-9675
1192Fax Filing (850) 921-6847
1196www.doah.state.fl.us
1197Filed with the Clerk of the
1203Division of Administrative Hearings
1207this 13th day of September, 2013.
1213ENDNOTES
12141/ Although both parties indicate that "all the Exhibits included
1224in the City's Referral of Fessel's appeal to DOAH" were "attached
1235to and incorporated in the Stipulated Record as Exhibits," such
1245is not accurate. The only two exhibits "[a]ttached to and
1255incorporated in the Stipulated Record" are listed.
12622/ The parties agreed this was the agreement in effect during the
1274time of this incident.
1278COPIES FURNISHED:
1280Gail G. Roberts, Esquire
1284City of Cape Coral
12881015 Cultural Park Boulevard
1292Cape Coral, Florida 33990
1296Richard Siwica, Esquire
1299Egan, Lev and Siwica, P.A.
1304231 East Colonial Drive
1308Orlando, Florida 32801
1311NOTICE OF RIGHT TO JUDICIAL REVIEW
1317A party who is adversely affected by this Final Order may apply
1329to the local circuit court for judicial relief within 30 days
1340after rendition of the final order by the hearing officer. The
1351proceedings in circuit court shall be commended by the filing of
1362a petition for writ of certiorari. City of Cape Coral Code of
1374Ordinances, Article III, Division 8, § 2-32.5(i).
- Date
- Proceedings
- PDF:
- Date: 09/05/2013
- Proceedings: Unopposed Motion for a One Day Extension of Time to File Proposed Final Order filed.
- PDF:
- Date: 08/27/2013
- Proceedings: Order (parties shall file proposed final orders on or before Friday, September 6, 2013).
- PDF:
- Date: 08/09/2013
- Proceedings: Order Canceling Hearing (parties to advise status by August 22, 2013).
- Date: 08/08/2013
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 08/08/2013
- Proceedings: Joint Motion to Reschedule Hearing Pending Submission of a Stipulated Record filed.
- PDF:
- Date: 06/07/2013
- Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for August 9, 2013; 9:00 a.m.; Fort Myers, FL).
- Date: 06/06/2013
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 05/24/2013
- Proceedings: Order Granting Continuance (parties to advise status by June 6, 2013).
- PDF:
- Date: 05/22/2013
- Proceedings: Order Disallowing Respondent to be Represented by a Qualified Representative.
- PDF:
- Date: 05/21/2013
- Proceedings: Affidavit in Support of Motion for Qualified Representative to Appear on Behalf of Alisha Fessel-Petitioner filed.
- PDF:
- Date: 05/21/2013
- Proceedings: Motion for Qualified Representative to Appear on Behalf of Alisha Fessel filed.
- PDF:
- Date: 05/06/2013
- Proceedings: Notice of Hearing (hearing set for June 6, 2013; 9:00 a.m.; Cape Coral, FL).
- PDF:
- Date: 04/26/2013
- Proceedings: Administrative Law Judge Services Contract between the City of Cape Coral and the Florida Division of Administrative Hearings filed.
- PDF:
- Date: 04/26/2013
- Proceedings: The City of Cape Coral Code Personnel Rules and Regulation filed.
- PDF:
- Date: 04/26/2013
- Proceedings: A. Fessel's request for an appeal from J. Szerlag's decision filed.
- PDF:
- Date: 04/26/2013
- Proceedings: Decision on Appeal of Disciplinary Action dates April 11, 2013 from City Manager terminating Alisha Fessel's employment filed.
- PDF:
- Date: 04/26/2013
- Proceedings: Memo dated March 11, 2013 from Captain M. Torregrossa to Chief of Police J. Murphy through Deputy Chief of Police B. Connelly summarizing disciplinary actions filed.
- PDF:
- Date: 04/26/2013
- Proceedings: Memo dated March 7, 2013 placing Alicia Fessel on paid administrative leave pending a pre-disciplinary conference filed.
- PDF:
- Date: 04/26/2013
- Proceedings: Final Notice of Disciplinary Action dated November 2, 2012 and notice that discipline was not appealed filed.
- PDF:
- Date: 04/26/2013
- Proceedings: City of Cape Coral Police Department Internal Affairs Report dated October 22, 2012 filed.
- PDF:
- Date: 04/26/2013
- Proceedings: Final Notice of Disciplinary Action dated October 10, 2012 filed.
- PDF:
- Date: 04/26/2013
- Proceedings: Memo dated May 26, 2012 and Pre-disciplinary Notice dated June 21, 2012 filed.
Case Information
- Judge:
- LYNNE A. QUIMBY-PENNOCK
- Date Filed:
- 04/26/2013
- Date Assignment:
- 04/26/2013
- Last Docket Entry:
- 09/13/2013
- Location:
- Fort Myers, Florida
- District:
- Middle
- Agency:
- Contract Hearings
Counsels
-
Gail G. Roberts, Esquire
Address of Record -
Richard Siwica, Esquire
Address of Record -
Gail G Prosser, Esquire
Address of Record