17-004231 Emerald Coast Utilities Authority vs. Sean A. Ward Status: Closed Recommended Order on Thursday, September 28, 2017.

Summary: Because Respondent withdrew his hearing request at the outset of the final hearing, Petitioner no longer has to prove its allegations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 17 - 4231

SEAN A. WARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case w as heard on September 21,

2017, in Pensacola, Florida, before Garnett W. Chisenhall, a

designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Diane Marie Longoria, Esquire

Qu intairos, Prieto, Wood & Boyer, P.A.

114 East Gregory Street

Pensacola, Florida 32502

For Respondent: James Sylivan Owens, Esquire

5240 Willing Street

Milton, Florida 32570

STATEMENT OF THE ISSUE S

Whether Respondent committed the violations of Emerald

Co a st Utility AuthorityÓs Human Resources Manual as alleged in

the agency action letter dated July 17, 2017.

PRELIMINARY STATEMENT

Via a letter dated July 17, 2017, Emerald Coast Utili ties

Authority (ÐECUAÑ) notified Sean Ward of its intent to terminate

his employment with ECUA. ECUAÓs action was motivated by a

determination that Mr. Ward had violated the following

provisions of ECUAÓs Human Resou rces Manual: Section B - 13 A (4)

(condu ct unbecoming an ECUA employee), Section B - 13 A (13)

(falsification o f records), Section B - 13 A (18) (loafing),

Section B - 13 A (26) (substandard quality or quantity of work),

and Section B - 13 A (33) (violation of ECUA rules or guidelines or

state or federal l aw).

Mr. Ward timely filed a request for a hearing to challenge

ECUAÓs intended action. In accordance with the terms of the

ÐAdministrative Law Judge Services ContractÑ (Ðthe ContractÑ),

entered into between ECUA and DOAH, ECUA forwarded the hearing

req uest to DOAH.

On August 16, 2017, the undersigned issued a Notice of

Hearing scheduling the final hearing to occur on September 20,

2017, in Pensacola, Florida , on the campus of ECUA.

On August 18, 2017, counsel for ECUA filed an ÐAgreed

Motion for Conti nuanceÑ notifying the undersigned that a

conflict arose with regard to the room in which the final

hearing was to be held. Accordingly, the undersigned issued an

Amended Notice of Hearing scheduling the final hearing to occur

on September 21, 2017.

The final hearing took place as scheduled on September 21,

2017. Neither party called any witnesses or attempted to mov e

any exhibits into evidence.

FINDING S OF FACT

1. At the outset of the hearing, Mr. WardÓs attorney

announced that Mr. Ward no longer wis hed to challenge ECUAÓs

intent to terminate his employment. In other words, Mr. Ward

withdrew his request for a hearing.

2. Furthermore, Mr. Ward made a statement consistent with

his attorneyÓs announcement.

3. The undersigned finds that Mr. WardÓs de cision to

withdraw his hearing request was voluntarily made and uncoerced.

CONCLUSIONS OF LAW

4. DOAH has jurisdiction over the parties and the subject

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

120.57(1), Florida Statutes (2017) . 1/

5. As the party 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 Mr. Ward engaged in the

violations alleged in the letter dated July 17, 2017. See

Balino v. D epÓt of HRS , 348 So. 2d 349, 350 (Fla. 1st DCA

1977). 2/

6. Because Mr. Ward has withdrawn his hearing request,

ECUA no longer has to satisfy any burden of proof in order to

follow through with its intent to terminate Mr. WardÓs

employment.

RECOMMENDATI ON

Based on the foregoing Find ings of Fact and Conclusions

of Law, it is RECOMMENDED that th e Executive Director of

Emerald Coast Utilities Authority find that Mr. W ard violated

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

B - 13 A (13)(f alsification o f records), Section B - 13 A (18)

(loafing), Section B - 13 A (26)(substandard quality or quantity

of work), and Section B - 13 A (33)(violation of ECUA rules or

guidelines or state or federal law) of the ECUAÓs Human

Resources Manual. 3/

DONE AND ENTERED this 28th day of September , 2017 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 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 28th day of September, 2017 .

ENDNOTE S

1/ Section 120.65(6) provides that DOAH Ðis authorized to

provid e administrative law judges on a contract basis to any

governmental entity to conduct any hearing not covered by this

section.Ñ

2/ The Contract specifies that ÐECUA has the burden of proof by

a preponderance of the evidence.Ñ

3/ The Contract furthe r specifies that Ðthe ALJ will determine

whether the employee has committed the violation as charged, but

the ALJ will not comment on, or recommen d, any disciplinary

penalty.Ñ

COPIES FURNISHED:

Diane Marie Longoria, Esquire

Quintairos, Prieto, Wood & Boyer, P.A.

114 East Gregory Street

Pensacola, Florida 32502

(eServed)

James Sylivan Owens, Esquire

5240 Willing Street

Milton, Florida 32570

(eServed)

Steve Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensac ola, Florida 32514

Cynthia Sutherland, Director

Human Resources and Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHT TO SUBMIT WRITTEN ARGUMENT

Pursuant to paragraph 7(m) o f the contract between ECUA and

DOAH, all parties have the right to submit written argument

within 10 days of the issuance of this Recommended Order with

the Executive Director of the ECUA as to any appropriate penalty

to be imposed. The Executive Directo r will then determine the

appropriate level of discipline to be imposed upon the

Respondent.