18-002717 Emerald Coast Utilities Authority vs. Robert D. Boyd, Ii Status: Closed Recommended Order on Monday, September 17, 2018.

Summary: Petitioner proved by a preponderance of the evidence that Respondent committed the alleged violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 18 - 2717

ROBERT D. BOYD, II,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a for mal administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

in Pensacola, Florida, on August 17, 2018.

APPEARANCES

For Petitioner: Diane M arie Longoria, Esquire

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

114 E ast Gregory Street, 2nd Floor

Pensacola, Florida 32502

For Respondent: Robert D. Boyd, II, pro se

Post Office Box 18025

Pensacola, Florida 32523

STATEMENT OF THE ISSUE

Whether Respo ndent knowingly submitted an inaccurate

timesheet for April 4, 2018, as charged in the agency action

letter dated May 11, 2018.

PRELIMINARY STATEMENT

Via a letter dated May 7, 2018, Emerald Coast Utilities

Authority (ÐECUAÑ) notified Robert D. Boyd, II, o f allegations

that he violated multiple provisions of ECUAÓs Human Resources

Manual (Ðthe ManualÑ):

ECUA initiated an investigation on April 17,

2018, regarding another matter. Information

from this other investigation prompted a

review of all timesheet r ecords for

employees who were involved in work

performed on April 4, 2018, at the ECUA

Bayou Marcus Water Reclamation Facility

(BMWRF).

On April 4, 2018, you and three other

coworkers were assigned to report to the

BMWRF to work on the drum thickener slud ge

tank pursuant to work order #133581. On the

time sheet you signed, you reported working

eight regular hours and three overtime hours

on April 4, 2018.

A review of the security video at [the

Central Wastewater Rec lamation Facility]

shows you and anothe r coworker returned to

[the Central Wastewater Rec lamation

Facility ] at 5:07 p.m. to end your day on

April 4, 2018, for you to have worked three

hours of overtime, you would have remained

working until 6:30 p.m. on April 4, 2018.

You did not.

After a p redetermination hearing, 1/ ECU A notified Mr. Boyd

via a letter dated May 11, 2018, of its intention to terminate

his employment:

In summary, and as detailed in your Notice

dated May 7, 2018, the findings from the

investigation confirm you knowingly

submitt ed an inaccurate timesheet for

April 7, 2018, claiming you worked

three hours of overtime, when you did not.

The video recording from the security system

captured your return to [the Central

Wastewater Rec lamation Facility ] at

5:07 p.m. on April 4, 2018. Although you

offered some evidence regarding your conduct

at the beginning of the day, you remained

unable to offer any credible explanation as

to how you calculated working three hours of

overtime on April 4, 2018. Instead, it is

undisputed that you did not work 11 hours

that day, as you represented in your signed

timesheet.

Mr. Boyd timely requested a hearing to challenge ECUAÓs

decision. In accordance with the terms of the ÐAdministrative

Law Judge Services ContractÑ (Ðthe contractÑ), entered into

between ECUA and the Division of Administrative Hearings

(ÐDOAHÑ), ECUA forwarded the request for hearing to DOAH, which

scheduled and conducted the hearing.

At the final hearing, which took place as scheduled on

August 17, 2018, ECUA called two witnesses: C ynthia Sutherland,

ECUAÓs Director of Human Resources and Administrative Services;

and Gerry L. Piscopo, ECUAÓs Deputy Executive Director for

Maintenance and Construction.

ECUAÓs Exhibits 1 through 5, 6a through 6c, and 7 through

13 were admitted into evidence.

Mr. Boyd testified on his own behalf and of fered two

exhibits that were accepted into evidence as RespondentÓs

Exhibits 1 and 2 .

ECUA made a digital audio recording of the proceedings and

provided it to the undersigned immediately after the conclusion

of the final hearing. 2/

FINDING S OF FACT

1. ECUA is a public utility that provides water,

wastewater, and sanitation services to customers in Escambia and

Santa Rosa counties.

2. ECUAÓs mission statement specifies that the Board and

employee s of ECUA Ðare committed to providing the highest

quality serviceÑ and that ÐECUA will always provide cost -

effective services.Ñ

3. The Manual sets forth the terms and cond itions of

employment with ECUA.

4. The Manual specifies that :

Overtime work s hould be for emergency or

unforeseen situations and to solve problems

which are not a part of the daily

activities. Supervisors are expected to use

overtime work sparingly and employees should

respond when called upon. Overtime and

compensatory time auth orization will be

established by the supervisor with the

approval of the department director.

5. During the relevant time period, ECUA employed Mr. Boyd

as an Industrial Plant Mechanic I.

6. On June 26, 2012, Mr. Boyd signed a document

acknowledging th at a copy of the Manual was available to him in

his supervisorÓs office, via ECUAÓs intranet, in ECUAÓs Human

Resources D epartment, and via compact disc upon request.

7. Mr. Boyd also acknowledged on June 26, 2012, that it

was his Ðresponsibility to rea d the entire Manual/Handbook and

to comply with the plans, guidelines, directives, and procedures

contained in the Manual/Handbook and any revisions to it.Ñ

8. As an Industrial Plant Mechanic I, Mr. Boyd works under

the supervision of a senior mechanic. He normally begins his

workday by reporting to the Central Wastewater Reclamation

Facility (Ð CWRF Ñ) at 7:00 a.m. and is dispatched to assigned

worksites. He uses an ECUA truck to travel to and from those

sites.

9. Mr. Boyd has a 30 - minute lunch break for which he is

not compensated. He is also allowed one 15 - minute break in the

morning and another in the afternoon.

10. Mr. BoydÓs typical workday ends at 3:30 p.m. With a

30 - minute lunch break, that amounts to an eight - hour workday.

11. In April of 2018, ECUA needed to replace all of the

diffusers at its Bayou Marcus Water Reclamation Facility (Ðthe

BMWRFÑ).

12. Mack H. Weeks, ECUAÓs Plant Maintenance Manager at the

time, had supervisory authority over Mr. Boyd.

13. Shortly before April 4, 2018, Mr. Boyd mentioned to

Mr. Weeks that he wanted to stop at the BMWRF on April 4, 2018,

prior to reporting to the CWRF, in order to see if the water

level had decreased to a point where the diffusers in question

were visible. According to Mr. Boyd, th at information would

enable him and the three other members of his four - person work

crew to ascertain what parts they needed to complete the repair.

14. However, there was no benefit for Mr. Boyd to stop at

the BMWRF prior to reporting to the CWRF. 3/

15. At 6:32 a . m . on April 4, 2018, ECUAÓs security system

recorded Mr. Boyd passing through a gate at the BMWRF.

16. Mr. Boyd took a picture of a portion of t he BMWRF a

few minutes later.

17. The security system at the CWRF recorded Mr. Boyd

entering th e facility at 7:13 a.m. on April 4, 2018.

18. Mr. Boyd traveled back to the BMWRF with Kevin Spinks,

an ECUA co - worker, in an ECUA work truck that had been assigned

to Mr. Spinks.

19. Carl Ayliffe and another ECUA employee were the

remainder of the fou r - person work crew assigned to that job, and

they traveled to the BMWRF in a separate ECUA truck.

20. The tank at the BMWRF was on - line by 3:00 p.m. on

April 4, 2018.

21. Every ECUA truck has a global positioning system that

enables ECUA to know prec isely where each truck is at virtually

any given point in time.

22. The GPS on Mr. SpinksÓ truck was not functioning

because the antenna had been disconnected.

23. However, the GPS on Mr. AyliffeÓs truck was

functioning and recorded that he was done working at 4:29 p.m. ,

on April 4, 2018. 4/ Rather than returning his truck to the CWRF,

Mr. Ayliffe drove the truck to his home because he was on call

that night.

24. A camera at the bac k gate of the CWRF recorded

Mr. Spinks returning his truck at 5:07 p . m . on April 4, 2018.

25. ECUAÓs security system recorded Mr. Boyd using his

employee badge to enter the CWRF through the southeast shop door

at 5:09 p . m . on April 4, 2018.

26. In consideration of a need to gather any belongings

and/or complete paperwork, Mr. BoydÓs work on April 4, 2018,

should have ended at approximately 5:30 p.m. on April 4, 2018.

27. On April 16, 2018 , Mr. Boyd, Mr. Spinks, and

Mr. Ayliffe submitted timesheets indicating that they each

worked eight regular hours and three o vertime hours on April 4,

2018.

Ultimate Findings

28. The greater weight of the evidence demonstrates that

there was no benefit to Mr. Boyd stopping at the BMWRF on

April 4, 2018, prior to reporting for work at the CWRF. The

greater weight of the evide nce also demonstrates that his stop

at the BMWRF was unauthorized by anyone who supervised Mr. Boyd.

29. As a result, Mr. BoydÓs stop at the BMWRF on April 4,

2018, was an attempt to accumulate unnecessary overtime pay.

30. The undisputed evidence demo nstrates that Mr. Boyd

began his workday at 7:13 a.m. on April 4, 2018, and his workday

should have ended at approximately 5:30 p.m. after he reported

back to the CWRF at 5:09 p.m. Given that Mr. Boyd was entitled

to a 30 - minute, unpaid lunch break, the u ndisputed evidence

indicates that he worked 9.75 hours on April 4, 2018, rather

than the 11 hours indicated on his timesheet.

CONCLUSIONS OF LAW

31. DOAH has jurisdiction over the parties and the subject

matter of these proceedings pursuant to sectio ns 120.65(6) and

120.57(1), Florida Statutes (2018).

32. As the party asserting the affirmative of a factual

issue, ECUA has the burden of demonstrating by a preponderance

of the evidence that Mr. Boyd engaged in the violations cited in

the May 11, 20 18, letter. Balino v. DepÓt of HRS , 348 So. 2d

349 (Fla. 1st DCA 1977). 5/ ÐProof by a ÒpreponderanceÓ of the

evidence means proof which leads the factfinder to find that the

existence of a contested fact is more probable than its

nonexistence.Ñ Smith v. State , 753 So. 2d 703 , 704 (Fla. 5 th

DCA 2000).

33. ECUA alleges that Mr. Boyd violated the following

provisions within the Manual: Section B - 3, attendance records;

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

B - 13 A (13), falsific ation of records; and Section B - 13 A (33),

violation of ECUA rules or guidelines or state or federal law.

34. Section B - 3 of the Manual states in pertinent part

that Ð[e]ach employee is required to verify his or her hours

worked for each biweekly pay pe riod, and notify his or her

supervisor of any discrepancies.Ñ

35. Section B - 13 A (4) prohibits conduct unbecoming an

ECUA employee and refers to Ð[a]ny act or activity on the job or

connected with the job which involves moral turpitude, or any

conduct , whether on or off the job, that adversely affects the

employeeÓs effectiveness as an ECUA employee, or that adversely

affects the employeeÓs ability to continue to perform their job,

or which adversely affects ECUAÓs ability to carry out its

assigned mis sion.Ñ

36. Section B - 13 A (13) prohibits the falsification of

records and refers to Ð[t]he knowing, willful, or deliberate

misrepresentation or omission of any facts with the intent to

misrepresent, defraud or mislead.Ñ The section defines the term

Ðreco rdsÑ to include Ðemployee attendance and leave records.Ñ

37. Section B - 13 A (33) prohibits the Ð violation of ECUA

rules or guidelines or state or federal lawÑ and refers to

Ð[t]he failure to abide by ECUA rules, guidelines, directive, or

state or federal statutes.Ñ The section states such violations

include, but are not limited to, Ðgiving or accepting a bribe,

discrimination in employment, or actual knowledge of and failure

to take corrective action or report rule violations and employee

misconduct.Ñ

38. The preponderance of the evidence demonstrates that

Mr. Boyd violated all of the aforementioned provisions. 6/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Executive Director of the

Emerald Co ast Utilities Authority find that Robert D. Boyd, II,

violated Section B - 3, attendance records; Section B - 13 A (4),

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

falsification of records; and Section B - 13 A (33), violation of

ECUA rules or guid elines or state or federal law.

DONE AND ENTERED this 17th day of September, 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 17th day of September, 2018 .

ENDNOTE S

1/ Non - exempt and non - key employees of ECUA alleged to have

violated a provision within the Manual are entitled to notice of

the allegations and a pre - determi nation hearing conducted by

ECUA. If an employee is dissatisf ied with the outcome of the

pre determination hearing, the employee is entitled to a hearing

before the Division of Administrative Hearings (ÐDOAHÑ) after

making a timely request. The parameters of the hearing are

governed by the contract entered into between ECUA and DOAH.

2/ The undersigned disregarded any in formation regarding past

violations of the Manual by Mr. Boyd in ascertaining whether he

committed the violation alleged in the May 11, 2018, letter.

3/ Gerry L. Piscopo, the ECUAÓs Deputy Executive Director for

Maintenance and Construction, testified t hat Mr. BoydÓs stop at

the BMWRF prior to reporting to the CWRF on April 4, 2018,

served no useful purpose. Mr. PiscopoÓs testimony was

supplemented by an affidavit from Mr. Weeks. While the

affidavit is hearsay, the contract provides that Ð[h]earsay

evi dence, whether received over objection or not, may be used to

supplement or explain other evidence, but shall not be

sufficient in itself to support a finding unless within a

hearsay exception in Chapter 90, Florida Statutes.Ñ

Mr. Boyd testified that anot her supervisor, Joe Peaden,

gave him authorization to begin his workday early on April 4,

2018. However, Mr. Piscopo contradicted Mr. Boyd by testifying

that Mr. Peaden was not working that week. Mr. PiscopoÓs

testimony was more credible than Mr. BoydÓs.

4/ The GPS reports are not hearsay. See Gayle v. State , 216 So.

3d 656, 659 - 60 (Fla. 4th DCA 2017)(explaining that a machine is

not a ÐdeclarantÑ for hearsay purposes).

5/ The contract specifies that ÐECUA has the burden of proof by

a prepondera nce of the evidence.Ñ

6/ The contract between ECUA and DOAH specifies that the ALJ

Ðwill determine whether the employee has committed the violation

as charged, but the ALJ will not comment on, or recommend, an

disciplinary penalty.Ñ

COPIES FURNISHE D:

Robert D. Boyd, II

Post Office Box 18025

Pensacola, Florida 32523

Diane Marie Longoria, Esquire

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

114 East Gregory Street , 2 nd Floor

Pensacola, Florida 32502

(eServed)

Stephen E. Sorrell , Executive Director

Eme rald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

Cynthia Sutherland, Director

Human Resources and Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHTS TO SUBMIT WRITTEN ARGUMENT

Pursuant to paragraph 7(m) of 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 a ppropriate penalty

to be imposed. The Executive Director will then determine the

appropriate level of discipline to be imposed upon the

Respondent.