15-001889 Emerald Coast Utilities Authority vs. Jerome Bess Status: Closed Recommended Order on Thursday, August 20, 2015.

Summary: Petitioner demonstrated by a preponderance of the evidence that Respondent, an employee who engaged in a pattern of running personal errands while on ECUA time and in ECUA's vehicle, violated Petitioner's policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 15 - 1889

JEROME BESS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal adm inistrative hearing was

conducted before Administrative Law Judge Mary Li Creasy in

Pensacola, Florida, on August 4, 2015.

APPEARANCES

For Petitioner: John Edmund Griffin, Esquire

Carson and Adkins

Suite 201

2930 Wellington Circle, North

Tallahassee, Florida 32309

For Respondent: Jerome Bess, pro se

9871 Guidy Lane

Pensacola, Florida 32514

STATEMENT OF THE ISSUE

Whether Respondent committed the action s of conducting

personal business during his scheduled work time for Petitioner

as charged in the a gency a ction letter dated March 24, 2015.

PRELIMINARY STATEMENT

By letter dated March 24, 2015, Petitioner, Emerald Coast

Utilit ies Authority (ECUA) , notifi ed Respondent, Jerome Bess

(Respondent) , o f its intention to terminate his employment as a

Utility Service Technician III . Respondent timely filed a

request for a hearing to challenge ECUA's decision . In

accordance with the terms of the "Adminis trative L aw Judge

Services Contract " (the Contract), entered into between ECUA and

the Division of Administrative Hearings (DOAH) , ECUA forwarded

the request for hearing to DO AH, which scheduled and conducted

the hearing.

On April 2 2, 2015, Jamison Jessup (Jes sup) filed a request

to be recognized as Respondent's Qualified Representative. This

request was granted on May 4, 2015. On July 8, 2015,

approximately one month before the scheduled hearing, Jessup

filed a Notice of Withdrawal. No request for continuan ce was

made prior to the hearing.

At the final hearing , which took place as scheduled on

August 4, 2015 , ECUA called nine witness es : Susan Colon,

Communications C oordinator; Perry White, Senior Utility Service

Technician ( UST ); Michael Garrison, UST Trai nee; Marion "Bud"

Watson, UST; James "Walter" Williams, UST; Jeremy Wil lia ms, UST

II; Chris Ochamp augh, UST; Cynthia Sutherland, D irector of Human

Resources and Administration; and Earnest Dawson, Director o f

Regional Services. ECUA Ós Exhibits 1 through 1 0 were admitted

into evidence. Respondent testified on his own behalf and called

E.J. Culpepper, a retired ECUA Lift Station Operator. Culpepper ,

identified as a Baptist preacher, was also present during the

proceedings at the request of Respondent and w as permitted to

advise Respondent during the final hearing. Respondent offered

no exhibits.

Official recognition was taken of specified portions of the

Florida S tatutes , as requested by ECUA . A digital audio

recording was made of the proceedings and prov ided to Respondent

and to the undersigned immediately after the conclusion of the

final hearing.

Unless otherwise indicated, all statutory references are to

the versions in effect at the time of the alleged violations.

FINDING S OF FACT

1. ECUA provides wa ter, wastewater, and sanitation services

to customers in Escambia and Santa Rosa counties. ECUA is

considered a quasi - governmental agency , and therefor e , its

employees enjoy procedural due process rights with regard to

their continued employment .

2. As s et forth in the "Human Resources Manual & Employee

Handbook" (Handbook), n on - exempt and non - key employees of ECUA

who face possible termination are entitled to notice of the

allegations against them and a pre - determination hearing

conducted by ECAU. If an employee is dissatisfied with the

outcome of the pre - determination hearing, the employee is

entitled to a hearing before DOAH after making a timely request.

The param e ters of the hearing are governed by the Contract

entered into between ECUA and DOAH in accordance with

section 120.65, Florida Statutes.

3. Respondent was employed with ECUA for approximately 17

years as a UST which is a non - exempt, non - key employee position .

He was terminated from his position of UST III effective

March 23 , 2015.

4. As a UST III, Respondent's job duties on the 3: 0 0 p.m.

to 11 :00 p.m. (3 - 11) shift included responding to reported water

leaks and repairing them, and responding to calls to "turn back

on " (TBO) service for customers who have been disconnected from

their water service . When working on the leak truck or TBO

truck, Respondent served as the lead worker on the two - man truck

crew due to his years of experience and license.

5. The 3 - 11 s hift has no scheduled break for lunch.

However, those working on this shift as UST's on the leak or TB O

truck s are permitted to take brief stops to purchase a meal to go

or use the restroom.

February 20 , 2015, Incident

6 . On Friday, February 20, 2015, Respondent was assigned to

work the leak truck on the 3 - 11 shift with Michael Gar rison

(Garrison) , a UST Trainee who had been employed with ECUA for

approximately two months. Respondent was the lead employee on

the truck and supposed to provide supervision and direction to

Garrison.

7 . At approximately 5:30 p.m., Garrison and Respond ent

discussed driving through McDonald's around 7 :00 p.m. to pick up

dinner. Shortly thereafter, Respondent directed Garrison to

drive them to DeLuna Lanes bowling alley on Nine Mile Road.

There was no pending service call at the bowling alley.

Responde nt told Garrison he wanted to stop to check on "his

girls , " referring to his bowling team. Respondent indicated he

would only be a few minutes and he took the ECUA radio with him

into the bowling alley at approximately 6:00 p.m.

8 . At 6:20 p.m., Susan Co lon (Colon), a dispatcher in

ECUA's Supervisory Control a nd Data Acquisition department

(SCADA) , received a request for a service call to repair a water

leak. Colon tried to reach the leak truck on its ECUA issued

radio approximately six times , and each t ime the response showed

the radio was unavailable or off. After being unable to reach

the leak truck by radio, Colon attempted to contact Respondent on

his personal cell phone for approximately an hour. When she

called, the cell phone put her into Respon dent ' s voice mail and

she left a message for him to return her call to handle a service

call.

9 . After no success contacting Respondent , Colon called

Walter Williams (Williams) who she believed was working with

Respondent that night. Williams advised tha t it was his day off.

Colon next telephoned Perry White (White) , the UST S upervisor for

the East Region , who advised her to contact the TBO truck to

handle the leak.

10 . White called Garrison's personal cell phone at

7:05 p.m. and asked his loc a tion. Ga rrison reported that he was

in the truck outside the bowling alley on Nine Mile Road and had

been there since approximately 6:00 p.m. White told Garrison to

stay at that location until White arrived.

11 . In the meantime, Colon received a call for service at a

leak at another location at approximately 7:20 p.m. She again

tried to reach Respondent on his radio and cell phone without

success. Respondent returned the c all to Colon at approximately

7: 25 p.m. after exiting the bowling alley and told Colon tha t his

radio was dead. A few minutes later, Respondent returned to the

leak truck. Garrison advised R espondent that White was on his

way and that, "this is not good." Respondent said that it was

all right and that he intended to tell White that he was ea ting

at the bowling alley.

12 . When White arrived at approximately 7: 30 p.m. , he

immediately placed R espondent on paid administrative leave.

White had verbally counseled Respondent only two days prior

regarding the need to timely respo nd to radio calls .

13 . Earlier on that same shift, Respondent had Garrison

drive him two times to a Dodge dealership where R espondent

d iscuss ed the purchase of a personal vehicle. Both stops took

approximately 25 minutes combined .

Initial Investigation

14 . The Februa ry 20 incident was referred to H uman

R esources M anager Stella Holland (Holland) for investigation.

When Holland initially interviewed Respondent regarding the

incident, Respondent told Holland that he and Garrison arrived at

the bowling alley around 6:30 p.m. Several days later,

Respondent retracted the statement and told Hollan d that he

arrived closer to 7 :00 p . m. Respondent 's explanation , that he

went into the bowling alley briefly to collect money from a

bowling teammate and get something to eat , was incon sistent with

Garrison's statement that he was left alone in the truck at the

bowling alley for more than an hour while waiting for Respondent ,

and inconsistent with Colon's repeated unsuccessful attempts for

more than an hour to reach Respondent .

15 . Duri ng ECUA's initial investigation , other similar

situations , of Respondent running personal errands during

scheduled work time in the prior two weeks , came to light.

16 . On February 10, 2015, while working the 3 - 11 shift with

co - worker Bud Watson (Watson) , Respondent went to his house for

30 min utes to meet his girlfriend. Respondent did not re quest

leave or receive approval from his supervisor to conduct this

personal business on ECUA time.

17 . On February 11, 2015, while working the 3 - 11 shift on

the TBO truck , Respondent took the ECUA radio and went to the

bowling alley for one hour leaving Watson in the ECUA vehicle

while TBO work orders were pending . Respondent was not

authorized to go to the bowling alley and to conduct this

personal business on ECUA time. Watson did not like being in the

ECUA truck because the truck has a large ECUA emblem and anyone

could call ECUA and report the truck "being in the wrong place at

the wrong time."

18 . On February 12, 2015, Respondent took a one - hour lunch

break at Kent ucky F ried C hicken. Employees working the 3 - 11

shift d o not get a designated lunch break but are allowed to stop

and pick up food provided they are readily available to respond

to call s as needed.

19 . On February 17, 2015, while workin g the 3 - 11 shi ft with

Williams, Respondent tol d Williams he wanted to run by L iberty

L anes bowling alley. Respondent and Williams arrived at L ib erty

L anes at approximately 7 :00 p.m . Williams remained in the ECUA

truck while Respondent went inside the bowling alley. R espondent

did not return until 7:30 p.m . During this time , service calls

were pending. Williams was concerned because he knew that White

had talked to Respondent earlier that same day about promptly

responding to radio calls.

20 . As a result of the init ial investigation, on March 2,

2015, Ernest Dawson (Dawson), D irector of Regional Services,

issued R espondent a written Notice of Predetermination/Liberty

Interest (name clearing) Hearing (NOP). This NOP detailed E CUA's

findings with regard to the Februar y 20 incident, summarized

additional incidents of R espondent conducting personal business

during work time , identified the alleged policy violations

committed by Respondent, indicated Dawson's intent to recommend

an 80 - hour suspension without pay, and advi sed of a pre -

determination hearing scheduled for March 4, 2015.

Supplemental Investigation

2 1 . Later that same day, Cindy Sutherland (Sutherland),

Director of Human Reso u rces and Administration, called

Responden t to advise that due to the discovery of in formation

regarding additional misconduct, the pre - determination hearing

was postponed.

22. The subsequent investigation revealed a l ong standing

pattern and practic e of Respondent conducting personal business

while on ECUA's time and using ECUA's vehicle .

23. These personal activities included : multiple stops at

three different bow ling alleys; multiple stops at R espondent's

home; multiple stops at the ho me of a female acquaintance of

R espondent; several stops a t two local Walmart stores ; and a stop

at a local bank downtown to obtain a loan. On each of these

occasions, Respondent either drove or requested his co - worker to

drive him in the ECUA truck to t he desired location to conduct

his personal business on ECUA time. Each time Respondent

frequented th ese u nauthorized locations, h is assigned co - worker

would remain in the truck. Respondent 's assigned co - workers were

unaware of what business he was conducting at these locations but

it was not business for EC UA. The time spent conducting personal

busines s at these locations by Respondent would range from

15 minutes to more than one and a half hours.

24. On all of these occasions, Respondent was expected to,

and should have been, performing his assigned ECUA duties and

responsibilities. If the truck to w hich Respondent was assigned

had no pending work orders, Respondent should have checked with

the other truck and dispatch to determine whether additional work

was available. If no additional work orders were waiting,

Respondent should have returned back t o ECUA to clean the truck

and wait for further work instructions.

25. Respondent was aware from multiple Region East meetings

that ECUA vehicles should not be seen in places not authorized by

the work assignments designated for the vehicle.

26. As a resu lt of the findings of the supplemental

investigation, Respondent was issued an Amended NOP by letter

dated March 10, 2015. This letter advise d R espondent that his

predetermination hearing was rescheduled for March 13, 2015.

Further, the letter notified R espondent that he was charged with

the following violations: section B - 13 A (4) (conduct unbecoming

an ECUA employee), section B - 13 A (9) (excessive tardiness),

section B - 13 A (17) (leaving the workstation without

authorization), section B - 13 A (18) (loaf ing), section B - 13 A

(19) ( unauthorized use of the ECUA property or equipment),

section B - 13 A (21) (neglect of duty), and a section B - 13 A (33)

(a violation of the ECU A rules or guidelines or state or federal

law) , of ECUA's Handbook . Respondent was also advised that

termination of his employment was recommended.

27. Respondent requested and was granted a continuance of

the predetermination hearing until March 17, 2015.

Respondent 's Explanation

28. Throughout the course of the investigation and during

the predetermination hearing, Respondent consistently argued that

the alleged incidents of misconduct were not serious because,

"everybody does it." However when asked to identify the co -

workers he believes engaged in similar conduct, Respondent

refused t o do so. Respondent 's position is that if there were no

pending work orders, USTs w ere free to run any personal errands

while on ECUA time and in its vehicle s .

29. Although Respondent admitted repeated stops at the

bowling alleys, his own home, his girlf riend's residence,

Walmart, and the Dodge dealership, Respondent initially claimed

that these were brief restroom or meal breaks. Respondent later

acknowledged that he went to the b owling alleys to watch his

team s bowl and conduct personal business with h is teammates and

bowling alley employees.

30. Significantly, Respondent received a one - day suspension

on November 22, 2013, for taking an excessive lunch break on

October 25, 2013, to attend a retirement party of another

employee from a different departme nt without authorization. On

October 25, 2013, Respondent took additional time to go to the

bank for his personal business without authorization and as a

result of spending e xcess time at the retirement party and on

personal business, Respondent only comp leted ten of the 37 work

orders assigned to him that day.

31. Respondent regularly ran personal errands on ECUA time

regardless of whether work orders were pending, whether his co -

workers objected or expressed concern, and after receiving

discipline for d oing the same. Accordingly, Respondent's

explanation, that he believed he could run any personal errand he

wanted while on ECUA time, as long as no work orders were

pending, is simply not credible.

32. After the predetermination hearing on March 17, 2015 ,

Respondent was provided a written summary on March 24, 2015 , of

ECUA's determination that he violated the above - cited policies

and that he w as terminated effective March 23 , 2015. Respondent

timely requested a hearing before DOAH.

33. At the final hear ing, Respondent argued that other USTs

also ran personal errands on ECUA time. In fact Garrison, a

relatively new employee admitted that he made a stop to buy milk

and drop it home for his baby, a stop home to grab coffee, and a

stop at his old address to pick up mail. However, Garrison

explained he only made such personal stops when riding with

Respondent because Respondent's behavior led him to believe it

was fine when they were together. Garrison did not make personal

stops when working with other co - workers.

34. Watson has stopped at the Tom Thumb convenience store

or Walmart while working to use the restroom or get a drink. He

has not stopped for personal business other than when taking a n

authorized lunch break on the 7:00 a.m. to 3:30 p.m. shift.

35. Jeremy Williams ran a personal errand on ECUA time on

one occasion. He stopped at Academy Sports to buy an arm brace.

The Director of ECUA happened to be in the parking lot and saw

the ECUA vehicle. Jeremy Williams received a three - day

suspension without pay for this incident.

36. The overwhelming credible evidence at the final hearing

was that no one , other than Respondent , has engaged in an ongoing

pattern and practice of making routine stops for personal

business (except for comfort breaks, whi ch are authorized) while

working for ECUA and using an ECUA vehicle.

CONCLUSIONS OF LAW

3 7 . DOAH has jurisdiction over the parties and the subject

matter of these proceedings pursuant to sections 120.65 (6) and

120.57(1) , Flor ida Statu t es.

38. As the part y asserting the affirmative of a factual

issue, ECUA has the burden of proof in this case to demonstrate

by a preponderance of the evidence that Respondent engaged in the

violations cited in the a gency a ction letter dated March 24,

2015. Balino v. Dep ' t o f H RS , 348 So. 2d 349 (Fla. 1st DCA

1977) ; see also , the Contract, ¶ 7(j).

Applicable ECUA Handbook Provisions

3 9 . The terms and conditions of Respondent's employment

with ECUA are governed by the Handbook, a copy of which was

received by Respondent on J une 25, 2012. The disciplinary

guidelines, which provide examples of offenses which may lead to

termination, are described in section B - 13 of the Handbook.

40 . Respondent's routine of making personal stops while on

work time and using an ECUA vehicle, co nstitutes a violation of

section B - 13 A (4), conduct unbecoming a ECUA employee. Being

parked at a bowling alley while conducting personal business for

an hour and a half on February 20, 2015, while leaving a trainee

in the vehicle, not responding to serv ice calls, with the ECUA

truck in clear view of the public, is an egregious example of

conduct u nbecoming an employee. Unfortunately, this was not a

one - time occurrence but a habit maintained by Respondent, despite

a corrective action regarding similar be havior, and reminders

from his supervisor and co - workers that this was unacceptable.

41 . Respondent's repeated failure to return from permitted

comfort breaks in a timely manner constitutes a violation of

section B - 13 A (9), excessive tardiness. Again, t his was not a

one - time occurrence but happened on multiple occasions when

Respondent ran personal errands last ing anywhere from 15 minutes

to an hour and a half.

42 . Section B - 13 A (17) prohibits leaving a work station

without authorization. While workin g for ECUA, as a UST,

Respondent's "work station" was the truck to which he was

assigned for a particular shift. At no time were stops at

bowling alleys, Walmart, a girlfriend's house or other commercial

establishments, other than for a brief comfort brea k, authorized.

Accordingly, Respondent violated this policy.

43 . Loafing is prohibited by section B - 13 A (18). Loafing

is the act of being idle or lolling. While engaged in personal

business or on personal errands, Respondent was not productive as

a US T, the position for which he was being paid. The extensive

unauthorized breaks enjoyed by Respondent did not result in

any productive work for the rate payers of the counties served

by ECUA. Respondent engaged in loafing in violation of

section B - 13 A (1 8).

44 . Respondent's violation of section B - 13 A (19),

unauthorized use of ECUA property or equipment, is self - evident.

Respondent had no authorization to use ECUA vehicles for personal

errands.

45 . Similarly, it is common sense that an employee who

cho oses to take care of personal business, rather than productive

work for his employer while on the employer's time, is guilty of

neglect of duty. Respondent's actions on numerous occasions,

whether or not there were pending work orders at the time of

Respo ndent's personal stops, constitute neglect of duty.

Respondent made no effort to seek productive work to stay engaged

during his paid workday. Respondent violated section B - 13 A

(21), neglect of duty.

46 . Section B - 13 A (33) prohibits employees from vio lating

ECUA rules or guidelines, or state or federal law. The above -

cited infractions all constitute a violation of ECUA's rules and

guidelines.

47. Respondent's explanations for his admitted actions,

that it was part of the "culture" for "everyone" to m ake personal

stops , or that he had a "target" on his back because he expressed

a desire to become supervisor, were not supported by credible

evidence and are specious at best.

48. No rational employer would allow employees who are on

the clock to drive ar ound town for personal business at the

employees' complete discretion. Considerations of possible

liability for workers' compensation claims and negligence actions

alone would preclude such a "culture." ECUA, because of past

negative publicity regarding employees parking ECUA trucks at

commercial establishments when no work order for that location

was pending, is particularly sensitive to this exact issue. The

only "culture" of USTs engaging in personal business on ECUA time

developed with those who work ed with Respondent as their lead and

saw him do it on a regular enough basis that they believed such

stops were approved when with Respondent.

RECOMMENDATION 1/

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Execu tive Director of Emerald

Coast Utilities Authority find that the Respondent violated

section B - 13 A (4) (conduct unbecoming an ECUA employee),

section B - 13 A (9) (excessive tardiness), section B - 13 A (17)

(leaving the workstation without authorization), se ction B - 13 A

(18) (loafing), section B - 13 A (19) (unauthorized use of the ECUA

property or equipment), section B - 13 A (21) (neglect of duty),

and a section B - 13 A (33) (a violation of the ECUA rules or

guidelines or state or federal law), of ECUA's Handboo k.

DONE AND ENTERED this 20th day of August , 2015 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August , 2015 .

ENDNOTE

1/ The Contract, paragraph 7(l) , specifies that the

A dministrative L aw J udge "will determine wheth er the employee has

committed the violation as charged, but the ALJ will not comment

on, or recommend, any disciplinary penalty."

COPIES FURNISHED:

John Edmund Griffin, Esquire

Carson and Adkins

Suite 201

2930 Wellington Circle, North

Tallahassee, Flor ida 32309

(eServed)

Jerome Bess

9871 Guidy Lane

Pensacola, Florida 32514

Kimberly E. Scruggs

Emerald Coast Utilities Authority

9255 Sturdevant Street

Post Office Box 15311

Pensacola, Florida 32514 - 0311

Cynthia S. Sutherland

Emerald Coast Utilities Au thority

9255 Sturdevant Street

Post Office Box 15311

Pensacola, Florida 32514 - 0311

Steve Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Post Office Box 15311

Pensacola, Florida 32514 - 0311

NOTICE OF RIGHT TO SUBMI T EXCEPTIONS

All parties have the right to submit written exceptions within

15 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.