16-003854 City Of Cape Coral vs. Heath Currier Status: Closed DOAH Final Order on Friday, January 20, 2017.

Summary: Petitioner met its burden and proved that just cause exists to terminate Respondent's employment due to insubordination and conduct unbecoming a public employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CAPE CORAL,

Petitioner,

vs. Case No. 16 - 3854

HEATH CURRIER,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a final hearing in this cause wa s held

in Fort Myers , Florida, on October 20, 2 016, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gail G. Roberts, Esquire

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

For Respondent: Robert Barry Burandt, Esquire

Roosa, Sutton, Burandt,

Adamski, and Roland, LLP

1714 Ca pe Coral Parkway, East

Cape Coral, Florida 33904 - 9620

STATEMENT OF THE ISSUE

Whether Respondent Heath Currier committed the violations

alleged in the Final Notice of Discipline, and if so, the

appropriate discipline that should be i mposed.

PRELIMINARY STATEMENT

On or about May 5, 2016, City of Cape Coral (Petitioner),

through Donald K. Cochran, fire chief/emergency management

director, served on Heath Currier (Respondent) a Final Notice of

Disciplinary Action recommending therein Res pondentÓs termination

from employment. Respondent timely filed a request for

administrative hearing, and this matter was referred to the

Division of Administrative Hearings for a disputed - fact hearing.

The disputed - fact hearing was held on October 20, 20 16.

During the hearing, Petitioner offered the testimony of

Michael Russell, Brian Lauer, Kenneth Ossowicz, Timothy Clark,

Grant Stalions, Chad Johnson, Ryan Corlew, and Donald Cochran.

Respondent testified on his own behalf and offered testimony from

St even Jobe. Joint Exhibits 1 through 15 were admitted into

evidence, with Joint Exhibits 14 and 15 ad mitted post final

hearing by agreement of the parties . (Joint Exhibit 14 and 15

are sections 101.07 and 101.11 of Cape Coral Fire, Rescue &

Emergency Mana gement Services Rules & Regulations). Petitioner

offered no exhibits in addition to the Joint Exhibits.

RespondentÓs Exhibits 5, 7, and 11 through 13 were admitted into

evidence (Though not separately marked by Respondent,

RespondentÓs Exhibits 5, 7, and 11 are contained within the J oint

Exhibits).

A Transcript of the disputed - fact hearing was filed with the

Division of Administrative Hearings on December 7, 2016.

RespondentÓs proposed final order was filed on December 20, 2016,

and PetitionerÓs propose d final order was filed on December 22,

2016.

FINDING S OF FACT

1. The fire chief, on behalf of the City of Cape Coral Fire

Department, is responsible for terminating the employment of

employees of the fire department.

2. At all times relevant to the thi s proceeding, Respondent

was employed by Petitioner as a firefighter. The employment

position that Respondent occupies is included in the positions

covered by the collective bargaining agreement between Petitioner

and the Cape Coral Professional Fire Figh ters Local 2424 of The

International Association of Fire Fighters (Union).

3. Petitioner has the authority to monitor and regulate its

employees in accordance with the laws and rules of the State of

Florida, the City of Cape Coral Charter, ordinances and rules

promulgated there under , and the collective bargaining agreement

between Petitioner and the Union.

4. According to the Joint Pre - Hearing Statement, ÐArticle

7(d)(2) of the union contract states that employees are entitled

to Notice of Intended Dis ciplineÑ and, according to Respondent,

ÐHeath Currier wasnÓt advised that his employment was being

terminated until after the fire chiefÓs pre - disciplinary

hearing.Ñ The referenced article of the union contract was not

offered into evidence. However, cha pter 2, division 7 of the

City of Cape Coral Ordinances (division 7), was received into

evidence and this ordinance sets forth RespondentÓs procedural

disciplinary notice rights.

5. Section 2 - 31.4(b) of division 7 provides in part that

Ð[w]hen disciplina ry action against an employee with regular

status is contemplated by the city, the department head shall

provide the employee with written notice of the intended

action(s).Ñ Section 2 - 31.4(c)(6) provides further that Ð[i]n no

event shall the discipline im posed be greater than that specified

in the notice of proposed disciplinary action.Ñ

6. On or about December 22, 2015, Respondent received a

notice of proposed disciplinary action from Petitioner which

informed him that the fire chief was considering dis ciplinary

action including, but not limited to, Ðwritten reprimand,

suspension, demotion, and/or termination of employment with the

City.Ñ Following the issuance of the notice of proposed

disciplinary action, an investigation was conducted which

resulted in the issuance of a final notice of disciplinary action

which advised Respondent that his employment with the City of

Cape Coral was being terminated Ðeffectively immediately.Ñ

7. The notice of proposed disciplinary action provided

Respondent with notic e that termination of his employment with

the City of Cape Coral was a possible consequence resulting from

his alleged misconduct, and the notice was issued in accordance

with the requirements of division 7.

8. Respondent, at the time of the occurrences that provide

the basis for the instant action, was a seven - year member of the

Cape Coral Fire Department, and, during all times relevant

hereto, worked primarily in the departmentÓs division of

operations. The fire departmentÓs division of operations is

d ivided into two battalions, Ðfire northÑ and Ðfire south.Ñ

Respondent was assigned to the fire south division.

9. The division of professional standards is another

division within the fire department, and, during all times

relevant hereto, was under the supervision of then special

operations battalion chief Timothy Clark. Housed within the fire

departmentÓs division of professional standards is the

departmentÓs special operations unit, which includes the

departmentÓs dive/rescue team. Mr. Clark, in his capacity as

battalion chief for special operations, had the authority to

direct fire department employees in matters related to

dive/rescue operations.

10. To become a member of the dive/rescue team, a

firefighter must go through a competitive process t hat, if

successfully completed, results in the firefighter receiving

additional pay in the form of a wage supplement. Members of the

dive/rescue team, according to Mr. Clark, must be proficient in

the operation of dive - related equipment to the point of kn owing

the equipment Ðinside and out, upside down, sideways, backwards,

eyes closed, [and] blindfolded.Ñ Respondent is a member of the

departmentÓs dive/rescue team.

11. At some point (the exact date is not clear in the

record), Respondent was assigned t o the fire station where the

dive/rescue team is located. The dive/rescue team is under the

direct supervision of Ryan Corlew.

12. The dive/rescue team has regular training exercises

which require members of the team to perform certain tasks so as

to maintain operational efficiency. Mr. Corlew, when working

with Respondent, determined that RespondentÓs knowledge of the

operational aspects of some of the dive/rescue equipment was

deficient and in need of remediation.

13. Special operations battalio n chief Clark was informed

of RespondentÓs problems with the dive/rescue equipment, and

armed with this information, met with Respondent to discuss the

issue. Mr. Clark explained to Respondent that he was displeased

that Respondent was not as proficient w ith the dive/rescue

equipment as he should be, and that he was placing Respondent on

a non - punitive three - week remedial training program. Mr. Clark

Ðinstructed [Respondent] at that time to work with the other guys

in [his] station, the lieutenant, the eng ineer, the firefighters,

all the divers there, to work with them and train with them and

have them teach [you] so that when I come back in three weeks,

[you will know] this stuff inside out . . . backwards . . . [and]

blindfolded.Ñ

14. Respondent explain ed that after he was instructed by

Mr. Clark to work with the other guys at his station, he

repeatedly asked (Ðmorning, noon, and eveningÑ) his lieutenant,

Mr. Corlew, for training, and each time he was refused.

According to Mr. Corlew, Respondent, while at the dinner table

one night, asked if Mr. Corlew could personally train him, and

Mr. Corlew, as RespondentÓs supervisor, told Respondent to first

work with firefighters Stalions and Johnson, both of whom are

extremely knowledgeable about the workings of the dive equipment.

15. Mr. Corlew went on to advise Respondent that he would

personally work with him once firefighters Stalions and Johnson

raised RespondentÓs proficiency with the equipment to an

acceptable level. Firefighter Stalions testified tha t during

this same discussion at the dinner table, he offered to train

Respondent , but Respondent refused and said that he wanted to be

trained instead by Mr. Corlew.

16. Respondent testified that Ð[e]very single day [he]

would take all of the dive equ ipment out of the compartments,

disassemble it completely, reassemble it and do that at least

twice a day.Ñ In an attempt to corroborate this testimony,

Respondent called Steven Jobe as a witness. Mr. Jobe testified

that he ÐdidnÓt necessarily see [Respo ndent] putting [the dive

equipment] together and taking it apart.Ñ

17. Although Mr. Clark told Respondent to be ready to

demonstrate his proficiency three weeks from the time of their

meeting, it was actually four weeks later when Mr. Clark again

met w ith Respondent. During the follow - up meeting, Mr. Clark

gave Respondent Ða simple scenario that engine 2 had come back

from a call, all the equipment was trashed and everything needed

to be replaced.Ñ According to Mr. Clark:

I needed [Respondent] to go i n the back room,

get all the stuff together and assemble a

dive setup, check it out and test it and make

sure it was ready to go if a call came in.

He fumbled through it. It took him a long

time to put stuff together. He ultimately

figured a couple thin gs out throughout the

process of elimination, but there was [sic]

still some things that he had wrong.

He had the weights, they werenÓt properly in

the BCs (undefined), which is a critical

safety issue, because if you lose your

weights on the call, it cou ld cause you to

bolt to the surface, which could cause injury

to yourself or others. So by placing the

weights improperly the way he did, to me was

a huge [problem]. (Hearing transcript pg.

83).

Mr. Clark went on to explain that Ðonce we were all done, like I

said, he had some issues and I knew -- it was obvious that he

hadnÓt done what I instructed him to do[,] [s]o I asked him at

the time who he had worked with over the course of that four

weeks.Ñ

18. Mr. Clark explained that he asked Respondent who he had

trained with during the four - week period because if the

individuals that remediated Respondent were performing at or near

the same level as Respondent, then Mr. Clark believed that he had

a larger issue of operational preparedness that he needed to

ad dress by personally retraining all concerned.

19. In response to Mr. ClarkÓs request for names,

Respondent told Mr. Clark Ðthe only people that IÓve had

consistently with me are two firefighters that IÓve worked with,Ñ

named Johnson and Stalions.

20 . Soon after meeting with Mr. Clark, Respondent sent the

following text message to firefighters Johnson and Stalions:

Hey guys heads up, I just had my Ð non

punative [sic] dive gear quizÑ with [C]lark

and I missed a few things. He asked who I

had been wor king with and I reluctantly gave

him your names after [C] o rlew told him I

never went to [M]edero for help. Not sure if

there will be any fallout but I wanted to let

you both know ahead of time.

21. Mr. Johnson credibly testified that he was surprised t o

have received the referenced text message from Respondent given

that he had never been asked to, nor had he ever provided any

type of training to Respondent.

22. Firefighter Stalions credibly testified that after

receiving the text he spoke with Respon dent and Ðtold him I

didnÓt appreciate being pulled into it because training wise, I

didnÓt do any formal training with him and it kind of to me felt

like he was looking for kind of some backup on it.Ñ Firefight er

Stalions went on to explain that he had n ever trained with

Respondent, but certainly would have had he been asked.

23. Because Respondent did not train with either

firefighter Johnson or Stalions, Respondent lied to Mr. Clark

when informing him that Respondent had trained with these

individuals .

24. RespondentÓs poor performance on his remedial test,

combined with the fact that not a single witness corroborated

RespondentÓs testimony of having disassembled and reassembled the

dive equipment twice a day, every single day, makes incredible

his t estimony regarding self - directed remedial training .

25. Respondent testified that he Ðdid everything [he]

thought [he] could doÑ to comply with Mr. ClarkÓs directions and

recommendations. RespondentÓs assertion is, however, belied by

the evidence which demonstrates that Respondent did not train on

the dive equipment with firefighters Madero and Johnson, and

refused a direct offer from firefighter Stalions to assist

Respondent with training. It was solely the fault of Respondent

that he did not secure re medial training as directed by

Mr. Clark.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2016). 1/

27. Petitioner bears the b urden of proving by a

preponderance of the evidence that Ðthe discipline ordered was

for just cause.Ñ Chapter 2, Division 8, § 2 - 32.5(g), City of

Cape Coral Ordinances .

28. ÐA 'preponderance' of the evidence is defined as 'the

greater weight of the evid ence,' or evidence that 'more likely

than not' tends to prove a certain proposition.Ñ Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000).

A. Insubordination and Failure to Perform Tasks

29. The May 5, 2016, Final Notice of Disciplinary Action,

charge s Respondent with violating section 2 - 31.3(d) and (w) of

the City Ordinance. Subsection (d) provides that

ÐinsubordinationÑ shall be a cause for disciplinary action.

Subsection (w) provides that the Ð[f]ailure or refusal to perform

tasks properly assigne d by any person in authorityÑ shall also be

cause for disciplinary action. The City Ordinance does not

define any of the referenced terms.

30. According to BlackÓs Law Dictionary , ÐinsubordinationÑ

means the willful or intentional Ð[r]efusal to obey som e order

which a superior officer is entitled to give and have obeyed.Ñ

BlackÓs Law Dictionary 720 (5th ed. 1979). As applied to the

instant case, the definition of insubordination also encompasses

the provisions of section 2 - 31.3(w). 2/

31. Mr. Clark, in his capacity as battalion chief for

special operations, had the authority to direct Respondent in

matters pertaining to dive/rescue operations. Mr. Clark issued

to Respondent the reasonable directive to Ðwork with the guys at

his stationÑ so that they could elevate to an acceptable level

RespondentÓs working knowledge of the dive/rescue equipment. The

evidence establishes that Respondent did not train with any of

his colleagues as instructed, that he specifically refused a

direct offer of assistance fr om firefighter Stalions, and he lied

to Mr. Clark about having trained with firefighters Johnson and

Stalions. These actions and omissions by Respondent show that he

acted intentionally when refusing to comply with Mr. ClarkÓs

directive. Petitioner has m et its burden with respect to these

allegations.

B. Conduct Unbecoming a Public Employee

32. The May 5, 2016, Final Notice of Disciplinary Action,

also charges Respondent with engaging in conduct unbecoming a

public employee in violation of section 101 .07, Cape Coral Fire,

Rescue & Emergency Management Services Rules & Regulations. The

provision of section 101.11 dealing with conduct unbecoming a

public employee provides as follows:

Public employees are held to a higher

standard than the general popula tion and as

such shall not engage in actions that reflect

unfavorably, cause embarrassment or are

damaging to the CCFD and/or the City of Cape

Coral. Members are representative of the

City of Cape Coral both on and off duty.

33. The evidence establishe s that Respondent lied to

Mr. Clark about having trained with firefighters Johnson and

Stalions, and then exacerbated the situation by texting Johnson

and Stalions about the possibility of some ÐfalloutÑ when neither

of these individuals had anything to d o with RespondentÓs sub - par

performance on his non - punitive remediation quiz. RespondentÓs

act of lying, and then attempting to involve innocent co - workers

in his deception, reflects unfavorably on himself and the Cape

Coral Fire Department and falls shor t of the high expectations

found in section 101.07. See Rice v. Bright , Case No. 03 - 0627

(Fla. DOAH Sept. 3, 2003); Pinellas Cnty. Sheriff Nov. 10,

2003)(false statements demonstrate conduct unbecoming a public

employee and constitute grounds for terminat ion of employment).

Petitioner has met its burden with respect to this allegation.

C. Just Cause Exists for Termination of Employment

34. City of Cape Coral Fire Department Chief Donald

Cochran, in support of his decision to terminate RespondentÓs

e mployment, testified that:

[Fire department personnel] have total access

to peopleÓs homes. We donÓt need warrants.

When people invite us in to respond to an

emergency, our firefighters are there,

jewelry is around, wallets are around, itÓs

integrity iss ues, people leave us with their

animals, their pets to lock up. Our

firefighters are around an enormous amount of

children, from daycares, public education, 36

schools in our community. [You] always get

this questions of why do you have to be held

to tha t higher standard . . . it comes with

the badge.

35. Chief CochranÓs rationale for terminating RespondentÓs

employment is persuasive and supported by a preponderance of the

evidence. Petitioner has met its burden and proved that

RespondentÓs conduct is sufficiently egregious so as to warrant

the termination of his employment with the City of Cape Coral.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby ORDERED that effectively immediately the

employment of Heath Cu rrier by the City of Cape Coral is

terminated.

DONE AND ORDERED this 20th day of January , 2017 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 20th day of January , 2017 .

ENDNOTE S

1/ All subseque nt references to Florida Statutes will be to 2016,

unless otherwise indicated.

2/ The Final Notice of Disciplinary Action also charges

Respondent with insubordination under section 101.11, Cape Coral

Fire, Rescue & Emergency Management Services Rules & R egulations.

The provision of section 101.11 dealing with insubordination

provides as follows:

Members are required and expected to follow

the lawful orders, directives, rules, or

assignments of their Company Officer or a

more senior Officer of CCFD witho ut

exception. Orders, directives, rules or

assignments may be given to members by

Supervisors via verbal or written means, and

the member is expected to act civilly and

responsibly in promptly carrying out such

orders or directives without delay. It is

t he responsibility of the receiving member to

verify and request clarification on the

matter if there is any confusion or

misunderstanding when an Officer of CCFD

gives an order, directive, rule, or

assignment. Failure to carry out an order,

directive, rul e, or assignment, when

assigned, shall be considered grounds for

discipline.

Section 101.11 is materially similar to section 2 - 31.3(d) and (w)

of the City Ordinance and is merged into the same for purposes of

the analysis conducted herein.

COPIES FURNIS HED:

Gail G. Roberts, Esquire

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

(eServed)

Robert Barry Burandt, Esquire

Roosa, Sutton, Burandt,

Adamski, and Roland, LLP

1714 Cape Coral Parkway, East

Cape Coral, Florida 33904 - 9 620

(eServed)

John Szerlag, City Manager

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

Lisa Sonego, Director of Human Services

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

Donald Cochran

Fire C hief/Emergency Management Director

City of Cape Coral

1015 Cultural Park Boulevard

Cape Coral, Florida 33990

NOTICE OF RIGHT TO JUDICIAL REVIEW

Chapter 2, Division 8, section 2 - 32.5(i), City of Cape Coral

Ordinances, provides that Ð[a]ny party who is a dversely affected

by the final order of the [Administrative Law Judge] may apply to

the local circuit court for judicial relief within 30 days after

rendition of the final order by the [Administrative Law Judge].

The proceedings in circuit court shall be commenced by the filing

of a petition for writ of certiorari.Ñ