18-003315 Emerald Coast Utilities Authority vs. Robert D. Boyd, Sr. Status: Closed Recommended Order on Friday, September 21, 2018.

Summary: Petitioner proved by a preponderance of the evidence that Respondent committed multiple violations of the Human Resources Manual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 18 - 3315

ROBERT D. BOYD, SR.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fo rmal administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

of the Division of Administrative Hearings, in Pensacola,

Florida , on August 22, 2018.

APPEARANCES

For Petitioner: Diane Marie Longoria, Esquire

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

114 East Gregory Street, 2 nd Floor

Pensacola, Florida 32502

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

83 78 Carl Dean

Pensacola, Florida 3251 4

STATEMENT OF THE ISSUE

Whether Respondent violated provisions of PetitionerÓs

Human Resources Manual and Employee Handbook (Ðthe ManualÑ) on

April 27, 2018, and on May 3, 4, 8, 9, 12, 16, 17, 24, and 31,

2018, as charged in the agency action letter dat ed June 22, 2018.

PRELIMINARY STATEMENT

Via a letter hand - delivered on June 13, 2018, the Emerald

Coast Utilities Authority (ÐECUAÑ) notified Robert D. Boyd, Sr.,

of allegations that he violated multiple provisions of the Manual

between April 27, 2018, and May 31, 2018. The letter informed

Mr. Boyd of a predetermination hearing 1/ scheduled for June 18,

2018, at which he would have an opportunity to address the

allegations.

Following the predetermination hearing, ECUA notified

Mr. Boyd via a letter dated J une 22, 2018, of its intention to

terminate his employment:

In summary, the findings from the

investigation have confirmed you falsified

records on April 27, 2018, when you claimed

you worked until 8:30 p.m., when you did not.

The surveillance video captu red your

departure from ECUA at 7:38 p.m. It is

undisputed your timesheet for April 27, 2018,

is false, and you never notified your

supervisor of the discrepancy. As specified

in Section B - 3 [Attendance Records] in the

Human Resources Manual, it is every

employeeÓs responsibility to verify his or

her hours worked Ðand notify his or her

supervisor of any discrepancy.Ñ

On May 3 - 4, 2018, the findings from the

investigation confirmed you performed a

substandard quantity of work on May 3, 2018,

and May 4, 201 8, when you claimed you worked

15.5 hours of overtime at three worksites.

Your testimony during the hearing regarding

your lack of productivity on May 3, 2018, and

May 4, 2018, was entirely self - serving and

was not credible. In fact, I believe you

delibe rately [dragged] your work out in order

to increase your overtime and to eliminate

the need for you to work the next day

pursuant to policy.

Additionally, the investigative findings

confirmed you were loafing and claimed time

spent on personal business as time worked,

and stole ECUA property on May 8, 2018. At

the hearing, surveillance video showed, and

you confirmed, you were driven to BoydÓs

Motorsports by Mr. Cody Fincher where

numerous bags of cement were unloaded from

your assigned ECUA vehicle (#167 4), and

loaded into a private vehicle. As specified

in Section B - 13 A (27) [Theft or stealing] in

the Human Resources Manual, the unauthorized

taking of any material or property of the

ECUA is a violation of policy. The

surveillance video showed on May 8 , 2018,

your assigned ECUA vehicle drove to a CVS

Pharmacy where you spent 16 minutes inside

plus travel time associated therewith. There

was no business purpose for either of those

excursions on May 8, 2018.

On May 9, 2018, the findings from the

investi gation confirmed you falsified records

when you claimed you worked until 6:00 p.m.,

when you did not. The surveillance video

captured your departure from ECUA at

5:49 p.m. It is undisputed your timesheet

for May 9, 2018, is false, and you never

notified your supervisor of the discrepancy.

On May 12, 2018, the investigative findings

confirmed you spent excessive time in your

ECUA vehicle idling, loafing and you

performed a substandard quantity of work.

The G.P.S. report showed your ECUA assigned

vehicle was stopped on Chase Street from

6:13 a.m. until 10:26 a.m. and surveillance

video showed no work being performed from

9:08 a.m. until 10:20 a.m. The G.P.S. report

showed your ECUA assigned vehicle was stopped

on Creighton Road from 10:48 a.m. until

11 :38 a.m. You testified you removed one

form board and spread dirt on the backside

edge of the concrete while stopped on

Creighton Road. Surveillance video confirms

your lack of meaningful work at this

location. Additionally, the G.P.S. report

showed you r ECUA assigned vehicle was stopped

on Spanish Trail from 11:48 a.m. until

1:45 p.m. You testified you framed and

poured a 3 ft. by 3 ft. or 3 ft. by 4 ft.

section of sidewalk. For a two - man crew to

perform such little work in essentially a

2 - hour per iod is wholly unacceptable and

demonstrates a lack of effort to efficiently

perform oneÓs work.

On May 16, 2018, the investigative findings

confirmed you were loafing and claimed time

spent on personal business as time worked,

left work without authorizat ion, and

falsified records. Surveillance video showed

you stopped in your assigned ECUA vehicle

(#1674) at DodgeÓs Fried Chicken, and there

was no business purpose for that excursion.

Later that day, surveillance video and G.P.S.

records show you took a lunch break from

approximately 11:30 a.m. until 12:14 p.m.

Surveillance video also captured your

departure from ECUA at 3:15 p.m.

Nevertheless, your time records showed you

claimed you worked until 3:30 p.m. that day

and claimed a 30 - minute lunch break. Your

timesheet was clearly false in many respects.

Despite clearly not having worked 8 hours

that day, you were nonetheless paid as if you

had.

On May 17, 2018, the findings confirmed you

were loafing and claimed time spent on

personal business as time worked. You

testified you went to a personal doctorÓs

appointment at Baptist Hospital on the

morning of May 17, 2018 until around

8:15 a.m. and confirmed you went to BoydÓs

Motorsports at least two times during your

workday on May 17, 2018. Your time re cords

showed you claimed a 30 - minute lunch period

and worked from 7:00 a.m. until 9:00 p.m.

that day. It is undisputed your timesheet

for May 17, 2018, is false, and you never

notified your supervisor of the discrepancy.

Your testimony about your activit ies on

May 17, 2018 is entirely self - serving and is

not credible.

On May 24, 2018, the findings confirmed you

were loafing, claimed time spent on personal

business as time worked, and falsified

records when you claimed a 30 - minute lunch

period, but took much longer as you admitted.

In fact, the G.P.S. report for your assigned

ECUA vehicle and surveillance video showed

you took a lunch period at MillerÓs Ale House

from 11:08 a.m. until 12:17 p.m. It is

undisputed your timesheet for May 24, 2018,

is false , and you never notified your

supervisor of the discrepancy. Again, this

is a violation of Section B - 3 [Attendance

Records] in the Human Resources Manual.

On May 31, 2018, surveillance video confirmed

you were loafing, claimed time spent on

personal busi ness as time worked, left work

without authorization, and falsified records.

The surveillance video showed Mr. Fincher

dropped you off at your personal vehicle at

7:09 a.m. and you departed ECUA property

promptly thereafter. You acknowledged you

went to BoydÓs Motorsports to attend to

personal business. You later called

Mr. Fincher to drive an ECUA vehicle to

retrieve you from your personal excursion.

G.P.S. shows that you were not picked up

until 9:25 a.m. You thus admitted that you

performed no ECUA business for more than the

first two hours of your workday.

Nevertheless, a timesheet was submitted

indicating you had worked your normal workday

plus overtime. You were thus paid

accordingly, even though your timesheet was

false.

Mr. Boyd timel y 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 reque st for hearing to DOAH.

At the final hearing, which took place as scheduled on

August 22, 2018, ECUA called three witnesses: Kimberly Scruggs,

ECUAÓs Assistant Director of Human Resources and Administrative

Services; Brian J. Reid, ECUAÓs Director of Regi onal Services;

and Terry Willette, private investigator.

ECUAÓs Exhibits 1 through 7, 9, 11, 14 through 16, 18

through 21, 23, 25 through 28, 30 through 39, and 41 through 43

were admitted into evidence.

During the final hearing, the undersigned reserved ruling on

the admissibility of ECUAÓs Exhibit 8, which consisted of

documents describing previous misconduct by Mr. Boyd. If the

undersigned were charged with recommending a penalty associated

with the allegations at issue in the instant case, then evide nce

of past misconduct could be relevant to penalty aggravation.

However, t he 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 y disciplinary penalty . Ñ Therefore, the undersigned

rules that ECUAÓs Exhibit 8 is irrelevant.

Mr. Boyd testified on his own behalf and offered no exhibits

into evidence.

ECUA made a digital audio recording of the proceedings and

provided it to the u ndersigned immediately after the conclusion

of the final hearing.

Unless otherwise indicated, all statutory references are to

the 2017 version of the Florida Statutes.

FINDING S OF FACT

1. Chapter 2001 - 324, Laws of Florida, declared the Escambia

County Ut ilities Authority an independent special district with

transferred assets and enumerated powers. Chapter 2004 - 398, Laws

of Florida, changed the Escambia County Utilities AuthorityÓs

name to ECUA. By law, ECUA provides utility services throughout

Escambia County, Florida, and has the power to appoint, remove

and suspend its employees, and fix their compensation within the

guidelines of Escambia County Civil Services Rules.

2. ECUAÓs mission statement specifies that the Board and

employees of ECUA Ðare co mmitted to providing the highest quality

serviceÑ and that ÐECUA will always provide cost - effective

services.Ñ

3. ECUA has adopted standards set forth in the Manual in

order to govern employee conduct.

4. Mr. Boyd has worked for ECUA since at least Novem ber of

1997 and acknowledged on June 25, 2012, that a copy of the Manual

was available to him.

5. During all times relevant to the instant case, Mr. Boyd

was assigned to ECUAÓs patch services division ( Ðpatch crewÑ ).

A significant part of the patch cr ewÓs work involves filling

holes left after other ECUA employees have performed utility

work.

6. The patch crew consists of eight people who normally

work from 7:00 a.m. to 3:30 p.m., with a 30 - minute lunch break

and two 15 - minute breaks.

7. In additio n to his employment with ECUA, Mr. Boyd owns

an automobile mechanic shop in Pensacola , Florida , known as

Boyd Ós Motorsports.

8. An anonymous e - mail to Gerry Piscopo, ECUAÓs Deputy

Executive Director of Maintenance and Construction, alleged that

the pa tch crew was leaving work early and incurring overtime by

intentionally being lackadaisical in completing work assignments.

As a result, ECUA initiated an investigation of the patch crewÓs

daily activities.

9. ECUA retained a private investigator, Terr y Willette, to

surveil the patch crew and videotape their daily activities.

From April of 2018 to some point in June of 2018, Mr. Willette

routinely surveilled the patch crew for 4 to 12 hours a day.

10. Mr. WilletteÓs work was facilitated by global

posi tioning devices (ÐGPSÑ) that ECUA installed on every truck

utilized by the patch crew. The GPS devices transmit a vehicleÓs

precise location to ECUA at two - minute intervals. The GPS

devices also inform ECUA whether a vehicle is moving, idle, or

stopped.

Findings Regarding the Allegations from April 27, 2018

11. Mr. Boyd filed a ÐDaily Overtime ReportÑ noting that he

worked from 3:30 p.m. to 8:30 p.m. on April 27, 2018. Because

the patch crewÓs workday normally ends at 3:30 p.m., Mr. Boyd

claimed five ho urs of overtime.

12. Mr. Willette was following Mr. Boyd that night and

observed him arriving at Boyd Ós Motorsports in an ECUA truck

at 7:38 p.m.

13. Mr. Boyd left Boyd Ós Motorsports at 8:02 p.m. Soon

afterward, Mr. Willette lost visual contact with the ECUA truck

driven by Mr. Boyd and was unable to follow Mr. Boyd to his next

destination. 2/

14. Mr. Boyd testified that he was preparing for the next

dayÓs work assignments when he arrived at Boyd Ós Motorsports that

evening. According to Mr. Boyd, he and other ECUA employees

would freely use resources available at Boyd Ós Motorsports in

order to further ECUA work.

15. Mr. Boyd also testified that he was either: (a) in

route to address a customer complaint when he left Boyd Ós

Motorsports at 8:02 p.m.; or (b) driving the ECUA truck to his

home because he had been ordered to proceed directly to a

particular worksite the next morning.

16. Mr. BoydÓs testimony about the extent to which he and

other ECUA employees freely utilized the resources of Boyd Ós

Mo torsports to facilitate ECUA work lacked credibility. 3/

17. As a result, the preponderance of the evidence

demonstrates that Mr. Boyd was not working on ECUA business when

he stopped at Boyd Ós Motorsports from 7:38 p.m. to 8:02 p.m. on

April 27, 2018. Therefore, Mr. Boyd erroneously reported working

five hours of overtime that day.

Findings Regarding the Allegations from May 3 and 4, 2018

18. Mr. Boyd filed a ÐDaily Overtime ReportÑ indicating

he worked 8.5 hours of overtime from 3:30 p.m. to 12:00 a.m. on

May 3, 2018. He filed another ÐDaily Overtime ReportÑ indicating

he worked seven hours of overtime from 12:00 a.m. to 7:00 a.m. on

May 4, 2018.

19. The majority of the claimed overtime pertained to an

assignment on Cervantes Street in downtown P ensacola involving a

sewer system repair. Another crew led by Michael Killen was

responsible for performing the primary repair work, and the patch

crew was to move in after Mr. KillenÓs crew had completed its

work.

20. Mr. KillenÓs crew arrived at the w orksite at 7:00 p.m.

on May 3, 2018, and finished its work at 3:30 a.m.

21. Even though Mr. KillenÓs crew was still working, the

patch crew arrived onsite several hours prior to Mr. KillenÓs

crew completing its work. While the patch crew provided whate ver

assistance it could during that downtime, it spent most of that

time waiting for Mr. KillenÓs crew to leave. Wh en Mr. KillenÓs

crew left at 3:3 0 a.m., the patch crew began actively working.

22. Given that the worksite was in downtown Pensacola, it

is reasonable to infer that the work needed to be completed as

quickly as possible. Therefore, it was not unreasonable for the

patch crew to be onsite and ready to immediately begin its work. 4/

In addition, the testimony indicated this was a complex

assi gnment for all concerned and that the patch crew may have

provided valuable assistance to Mr. KillenÓs crew.

23. The preponderance of the evidence does not demonstrate

that Mr. Boyd erroneously reported the overtime he worked on

May 3 and 4, 2018.

Findin gs Regarding the Allegations from May 8, 2018

24. On May 8, 2018, Mr. Willette observed Mr. Boyd and a

coworker driving an ECUA truck with several bags of concrete to

Boyd Ós Motorsports. Mr. Willette shot video of Mr. Boyd and his

son Tony loading the co ncrete bags onto a pickup truck driven by

Tony Boyd.

25. Mr. Boyd testified that the concrete had to be disposed

of because the bags had become wet and the concrete inside was

ruined. Rather than using the ECUA truck to transport the

concrete to a land fill or some other disposal area, Mr. Boyd had

his son, who was not an ECUA employee, dispose of the concrete.

As for why he did not use the ECUA truck to take the concrete

directly to a disposal area, Mr. Boyd explained it would have

been too time consum ing given the locations of the patch crewÓs

work assignments that morning.

26. Multiple aspects of Mr. BoydÓs testimony lacked

credibility: (a) that ECUA routinely allowed concrete to become

ruined through exposure to moisture; (b) that Mr. Boyd enlisted

someone not employed by ECUA to dispose of ECUA property;

(c) that Mr. Boyd did not need authorization in order to dispose

of the concrete; and (d) that Mr. Boyd was concerned about

spending an excessive amount of time in transit from a landfill

to a wor ksite. The preponderance of the evidence demonstrates

Mr. Boyd did not have authorization to take the concrete.

27. Mr. Willette also observed Mr. Boyd driving the same

ECUA truck to a CVS pharmacy and spending 16 minutes there on

May 8, 2018. Whil e Mr. Boyd had no business purpose for stopping

at the pharmacy, it is certainly possible that this stop occurred

during one of his authorized 15 - minute breaks or that it was a

bathroom stop. 5/

28. The preponderance of the evidence does not demonstrate

that Mr. Boyd violated any Manual provisions when he stopped at a

pharmacy on May 8, 2018.

Findings Regarding the Allegations from May 9, 2018

29. Mr. Boyd filed a ÐDaily Overtime ReportÑ indicating he

worked 2.5 hours of overtime on May 9, 2018. H owever, ECUA did

not present any exhibits to substantiate its allegation that

Mr. Boyd left work at 5:49 p.m.

30. The preponderance of the evidence does not demonstrate

that Mr. Boyd filed an erroneous timesheet on May 9, 2018.

Findings Regarding the Al legations from May 12, 2018

31. On May 12, 2018, Mr. Willette began following Mr. Boyd

at 9:08 a.m.

32. After completing an assignment on East Chase Street,

Mr. Boyd testified that he worked on three other assignments on

Creighton Road, Spanish Trail, and Davis Highway before finishing

his workday at 3:05 p.m.

33. Mr. Willette testified that he did not see Mr. Boyd

performing any meaningful work on Creighton Road, Spanish Trail,

and Davis Highway. The relevant GPS report indicates the ECUA

truck uti lized by Mr. Boyd that day was idling when no work was

being performed.

34. Because Mr. WilletteÓs testimony was more credible, the

preponderance of the evidence demonstrates that Mr. Boyd did no

work after leaving East Chase Street on May 9, 2018.

Fi ndings Regarding the Allegations from May 16, 2018

35. Mr. BoydÓs timesheet for May 16, 2018, indicates he

arrived at work at 7:00 a.m. and left at 3:30 p.m. It also

indicates he worked eight hours that day.

36. Mr. Willette surveilled Mr. Boyd on May 16, 2018. He

observed Mr. Boyd and a coworker leaving ECUA that morning and

driving directly to DodgeÓs Chicken Store. Mr. Boyd remained

inside the store for a few minutes and left appearing to be

carrying two food items.

37. Mr. Willette observed Mr . Boyd having lunch with an

unidentified female from 11:30 a.m. until 12:16 p.m.

38. Mr. Boyd drove his personal vehicle from ECUA property

at 3:15 p.m. and arrived at a J.C. PennyÓs store at approximately

3:29 p . m. Mr. Boyd drove away from the store at approximately

3:33 p.m. with another unidentified female.

39. The preponderance of the evidence demonstrates that

Mr. Boyd did not work eight hours on May 16, 2018. The stop at

DodgeÓs Chicken Store could have been one of Mr. BoydÓs 15 - minute

breaks. However, as noted above, patch crew members have a

30 - minute lunch break, and Mr. Boyd spent 46 minutes at lunch

that day. Also, while a patch crew memberÓs day usually ends

at 3:30 p.m., Mr. Boyd left work at 3:15 p.m.

Findings Regarding the Allegatio ns from May 17, 2018

40. Mr. BoydÓs timesheet for May 17, 2018, indicates he

arrived at work at 7:00 a.m. and left at 3:30 p.m. It also

indicates he worked eight hours that day.

41. Mr. Willette surveilled Mr. Boyd that day and observed

him leaving Ba ptist Hospital at 8:11 a.m. following a medical

appointment. Mr. Boyd then proceeded to BoydÓs Motorsports.

42. The preponderance of the evidence demonstrates that

Mr. BoydÓs May 17, 2018, timesheet is inaccurate. He was not

continuously working from 7:00 a.m. to 3:30 p.m. on May 17, 2018.

Findings Regarding the Allegations from May 24, 2018

43. Mr. BoydÓs timesheet for May 24, 2018, indicates he

reported to work at 6:57 a.m. and left work at 3:30 p.m. It also

indicates he worked eight hours that da y. Therefore, his time

entries indicate he took a standard 30 - minute lunch break that

day.

44. Mr. Willette observed Mr. Boyd and a coworker meeting a

third man for lunch at MillerÓs Ale House at 11:08 a.m. that day.

The trio left the restaurant at 12:1 7 p.m.

45. Mr. Boyd testified that the third man was an ECUA

supervisor and that work was discussed over lunch. Even if that

assertion is accurate, there is no dispute that Mr. BoydÓs lunch

on May 24, 2018, exceeded 30 minutes.

46. The preponderance of the evidence demonstrates that

Mr. BoydÓs May 24, 2018, timesheet is inaccurate.

Findings Regarding the Allegations from May 31, 2018

47. Mr. BoydÓs timesheet for May 31, 2018, indicates he

arrived at work at 6:57 a.m. and left at 3:30 p.m.

48. Mr. Wi llette photographed Mr. Boyd driving his personal

vehicle from ECUA property at 7:10 a.m. A coworker picked up

Mr. Boyd at Boyd Ós Motorsports approximately two hours later.

49. The preponderance of the evidence indicates that

Mr. BoydÓs May 31, 2018, t imesheet is inaccurate.

CONCLUSIONS OF LAW

50. 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.

51. As the party asserting the affirmative of a factual

iss ue, ECUA has the burden of demonstrating by a preponderance of

the evidence that Mr. Boyd committed the violation s cited in the

June 22, 2018, letter. Balino v. DepÓt of HRS , 348 So. 2d 349

(Fla. 1st DCA 1977). ÐProof by a ÒpreponderanceÓ of the evidence

means proof which leads the factfinder to find that the existence

of the contested fact is more probable than its nonexistence.Ñ

Smith v. State , 753 So. 2d 703, 704 (Fla. 5th DCA 2000).

52. ECUA alleges that Mr. Boyd violated the following

Manual provis ions: Section B - 3, attendance records; Section B - 13

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

falsification of records; Section B - 13 A (17), leaving a work

station without authorization; Section B - 13 A (18), loafing;

Section B - 13 A (21), neglect of duty; Section B - 13 A (26),

substandard quality and/or quantity of work; Section B - 13 A (27),

theft or stealing; Section B - 13 A (33), violation of ECUA rules

or guidelines or state or federal law; and Section B - 37, vehicle

and equipment idl e reduction.

53. 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 period, and notify his or her supervis or of

any discrepancies.Ñ

54. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 3 on April 27, 2018; May 16, 2018;

May 17, 2018; May 24, 2018; and May 31, 2018.

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

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

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 mission.Ñ

56. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 13 A (4) on April 27, 2018; May 8,

2018; May 12, 2018; May 16, 2018; May 17, 2018; May 24, 2 018; and

May 31, 2018.

57. 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 d efines the term

ÐrecordsÑ to include Ðemployee attendance and leave records.Ñ

58. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 13 A (13) on April 27, 2018; May 12,

2018; May 16, 2018; May 17, 2018; May 24, 2018; and May 31, 2018.

59. Section B - 13 A (17) prohibits leaving work without

authorization and refers to Ð[t]he unauthorized absence by an

employee from their work station . . . during the established

work period or leaving of a work station for a lunch break or

bre ak period without being properly relieved . . . .Ñ

60. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 13 A (17) on May 16, 2018; May 24,

2018 , and May 31, 2018.

61. Section B - 13 A (18) prohibits ÐloafingÑ and refers to

Ð[t]he continued or repeated idleness or non - productiveness

during work hours which diverts the employee from performing

assigned tasks.Ñ

62. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 13 A (18) on April 27, 2018; May 12,

2018; May 16, 2018; May 17, 2018; May 24, 2017; and May 31, 2018.

63. Section B - 13 A (21) prohibits Ðneglect of dutyÑ and

refers to Ð[f]ailure to perform an assigned duty.Ñ

64. The preponderance of the evidence demonstrates that

Mr. Boyd violate d Section B - 13 A (21) on May 12, 2018.

65. Section B - 13 A (26) refers to Ð[s]ubstandard quality

and/or quality of workÑ without elaboration.

66. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 13 A (26) on May 12, 2018.

6 7. Section B - 13 A (27) prohibits theft or stealing and

refers to Ð[t]he unauthorized taking of any material or property

of [] ECUA . . . with the intent to permanently deprive the owner

of possession or to sell or to use for personal gain.Ñ

68. The prepo nderance of the evidence demonstrates that

Mr. Boyd violated Section B - 13 A (27) on May 8, 2018.

69. Section B - 37 pertains to Ðvehicle and equipment idle

reductionÑ and specifies that ÐECUA employees shall avoid all

unnecessary vehicle and equipment idli ng.Ñ

70. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 37 on May 12, 2018.

71. Section B - 13 A (33) prohibits the violation of ÐECUA

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 act ion or report rule violations and employee

misconduct.Ñ

72. The preponderance of the evidence demonstrates that

Mr. Boyd violated Section B - 13 A (33) through the violations

enumerated above.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is RECOMMENDED that the Executive Director of the Emerald

Coast Utilities Authority find that Robert D. Boyd, Sr. , violated

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

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

of records; Section B - 13 A (17), leaving a work station without

authorization; Section B - 13 A (18), loafing; Section B - 13 A (21),

neglect of duty; Section B - 13 A (26), substandard quality and/or

quantity of work; Section B - 13 A (27), theft or s tealing; Section

B - 13 A (33), violation of ECUA rules or guidelines or state or

federal law; and Section B - 37, vehicle and equipment idle

reduction.

DONE AND ENTERED this 2 1st day of September, 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto 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 2 1st day of September, 2018 .

ENDNOTE S

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

violated a provision of the Manual are entitled to notice of the

allegations and a predetermination heari ng conducted by ECUA. If

an employee is dissatisfied with the outcome of the

predetermination hearing, the employee is entitled to a hearing

before the Division of Administrative Hearings (ÐDOAHÑ) after

making a timely request. The parameters of the hear ing are

governed by the contract entered into between ECUA and DOAH.

2/ ECUA did not move to introduce a GPS report for April 27,

2018, into evidence.

3/ Mr. Boyd testified that he and other ECUA employees would use

tools at Boyd Ós Motorsports to fa bricate items to be used for

ECUA work assignments. According to Mr. Boyd, this enabled work

assignments to be completed much faster than if he and his co -

workers solely relied on the resources available at ECUA.

Mr. Boyd also testified that the patc h crew frequently used water

from Boyd Ós Motorsports to fill a 150 - gallon tank carried by a

truck assigned to the patch crew. When asked how often this

occurred, Mr. Boyd testified that the patch crew had used the

water at Boyd Ós Motorsports 20 to 30 time s over the last two

years. As justification for Mr. Boyd donating water from Boyd Ós

Motorsports to ECUA, Mr. Boyd cited the difficulty in drawing

water from a fire hydrant and the long wait associated with

obtaining water from an outlet at ECUAÓs facility . Mr. Boyd also

characterized the expense associated with filling a 150 - gallon

tank as being a miniscule portion of the total water expense

incurred at Boyd Ós Motorsports. The undersigned finds that this

testimony lacks credibility.

4/ Mr. Boyd testi fied that the patch crew was following orders

from its supervisor when it arrived well before Mr. KillenÓs crew

had completed its work. ECUA raised a hearsay objection to that

testimony, and the undersigned has not based any findings of fact

on that testi mony. See § 120.57(1)(c), Fla. Stat. (providing

that Ð[h]earsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.Ñ).

5/ Because the patch crewÓs work primarily occurred in the field,

its members had to rely on public bathroom facilities.

COPIES FURNISHED:

Robert D. Boyd, Sr.

8378 Carl Dean

Pensacola, Florida 32514

Diane Marie Longoria, Esqu ire

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

114 East Gregory Street, 2nd Floor

Pensacola, Florida 32502

(eServed)

Stephen E. Sorrell , Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

Cynthia Sutherlan d, Director

Human Resources and Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Pursuant to paragraph 7(m) of the contract between ECUA and DOAH,

all partie s 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 Director will then determine the appropriate level

of d iscipline to be imposed upon the Respondent.