18-003337 Emerald Coast Utilities Authority vs. Dalton B. Baker Status: Closed Recommended Order on Tuesday, September 18, 2018.

Summary: ECUA proved by a preponderance of the evidence that Respondent failed to verify the accuracy of his timesheets.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 18 - 3337

DALTON B. BAKER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall ,

of the Division of Administrative Hearings, in Pensacola,

Florida, on August 20, 2018.

APPEARANCES

For Petitioner: Diane Marie Longoria, Esquire

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

114 East Gregory Street, 2nd Floor

Pensacola, Florida 32502

For Respondent: Dalton B. Baker

Apartment L

496 South Fairfield Drive

Pensacola, Florida 32506

STATEMENT OF THE ISSUE

Whether Respondent violated provisions of PetitionerÓs Human

Resources Manual and Employee Handbook (Ðthe ManualÑ) on May 18,

23, 24, and 31, 2018, as charged in the agency action letter

dated June 25, 201 8.

PRELIMINARY STATEMENT

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

Emerald Coast Utilities Authority (ÐECUAÑ) notified Dalton B.

Ba ker that it had initiated an inv estigation of ECUAÓs Ðpatch

crewÑ and Ðuncovered multiple issues of concern .Ñ With regard to

Mr. Baker, the letter alleged that his conduct on May 24 and 31,

2018, violated several Manual provisions. The letter closed by

notifying Mr. Baker that a Ð predetermination hearing Ñ was

scheduled for June 18, 2018, and that he would have an

oppo rtunity at the hearing to address the allegations to Ðprovide

any documents, explan ations, or new information to refute the

charges.Ñ

Mr. BakerÓs predetermination hearing 1/ was held as

scheduled on June 18, 2018. However, ECUA issued another letter

on Ju ne 21, 2018, notifying Mr. Baker that newly disc overed

evidence indicated that he committed additional violations on

May 18, 22, and 23, 2018. The letter also notified Mr. Baker

that a supplemental prede termination hearing was scheduled for

June 25, 2018 .

Following the second p re determination hearing, ECUA notified

Mr. Baker via a letter dated June 25, 2018, of it s intention to

terminate his employment:

In summary , the finding s fr om the

investigation confirmed you knowingly

submitted an inaccurate timeshe et for May 24,

2018 , and May 31, 2018, claiming you worked

until 3:30 p.m. each day, when you did not.

The video from surveillance recordings

captured you r departure from the ECUA

building prior to 3:30 p.m. on both

occasion s ; specifica lly, at 12:59 p.m. on

May 24, 2018, and at 3:09 p.m. on May 31,

2018. At the hearing on June 18, 2018, you

explained Mr. Rigby or Mr. Boyd would

typically clock you in an d out with your

knowledge in order to ensure the accuracy of

your timecard. After examining a printed

copy of your timecards for the dates in

question, you admitted your timesheets were

inaccurate. It is undisputed your timesheets

for May 24, 2018, and May 31, 2018, are

false, and you never notified your supervisor

of the discrepancy. As specified in

Se ction B - 3 [Attendance Records] in the Human

Resources Manual, it is every employeeÓs

responsibility to verify his or her hours

worked Ð and noti f y his or her supervisor of

any discrepancy.Ñ

On May 18, 2018, you claimed a 30 - minute

lu n ch period, but took mu ch longer. In that

regard, you admitted you took a long lunch at

Captain Joe PattiÓ s Seafood restaurant w h ich

is located a t 610 South C Street. The G.P.S.

report showed your ECUA assigned vehicle

(#1622) located at 610 South C Street

from 11:43 a.m. unt il 1:17 p.m. Î over 1 ½

hours, even though you are only allotted 30

minutes for lunch. It is undisputed your

time sheet for May 18, 2018, which indicated

you worked 8 hours that day and only took 30

minutes for lunch, is false, and y ou never

notified your supervisor of the discrepancy.

Again, this is in violation of Section B - 3

[Attendance Records] in the Human Resources

Manual.

The G.P.S report also confirmed the ECUA

truck (#1622) you were assigned to on May 23,

2018 went to your home address located at

496 South Fairfield Drive. During you r

June 25, 2018 supplemental hearing, you

admitted you may have stopped at your

residence on this date, but could not be

certain this was one of the days you stopped

by your residence, suggesting such behavior

is not unusual for you. The G.P.S report

showed you effectively abandoned your

workplace when you drove your assigned ECUA

vehicle to your home address and remained

there for 9 minutes on this date. There was

no business purpose for the excursion to your

ho me address on May 23, 2018; nevertheless,

you claimed this time as time spent working

and were thus paid as if you had been

working, even though you were not.

Your conduct constitutes a violation of

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 work station without

authorization]; Section B - 12 A (18)

[Loafing]; Section B - 13 A (21) [Neglect of

duty]; Section B - 12 A (26) [Substand ard

quality and/or quantity of work]; and Section

B - 13 A (33) [Violation of ECUA rules or

guidelines or state or Federal law] in ECUAÓs

Human Resources Manual.

( italics in or iginal ) .

Mr. Baker timely requested a hearing to challenge ECUAÓs

decision. I n 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.

At the final hearing, which took place as scheduled on

August 20, 2018, ECUA called three witnesses: Kimberly Scruggs,

ECUAÓs Assistant Director of Human Resources and Administrative

Services; Brian J. Reid, ECUAÓs Director of Regional Services;

and Terry Willette , private investigator .

ECUAÓs Exhibits 1 through 7 and 9 through 16 were admitted

into evidence.

ECU A made a digital audio recording of the proceedings and

provided it to th e undersigned immediately after the conclusion

of the final hearing.

Unless otherwise indicated, all sta tutory references are to

the 2017 version of the Florida Statutes.

FINDING S OF FACT

1. Chapter 2001 - 324, Laws of Florida, declared the Escam b ia

County Utilities Authority an independent special district with

transferred assets and enumerated powers. Chap ter 2004 - 398, Laws

of Florida , changed the Escambia County Utilit ies 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 compen sation within the

guidelines of Escambia County Civil Services Rules.

2. ECUAÓs mission statement specifies that the Board and

employees of ECU A Ðare committed to providing the highest quality

serviceÑ and that ÐECUA will always provide cost - effective

se rvices.Ñ

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

order to govern employee conduct.

4. During the relevant time period, ECUA employed Mr. Baker

as the utility service worker in the pa t ch services division

(Ðthe patch crewÑ).

5. Mr. Baker acknowledged on April 22, 2013, that a copy of

the Manual was made available to him.

6. The patch crew consists of eight people who normally

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

7. Mr. Baker usually performed asphalt repairs o r assisted

other patch crew members with their tasks.

8. The patch crewÓ s supervisor assigns work to the patch

crew each day. If the crew completes all of its assigned tasks

prior to 3:30 p.m., there is no policy or Manual provision

allowing them to leav e work early and count that as work time.

9. Mr. Baker would normally begin each workday by reporting

to an ECUA building on Sturdevant Street where the patch crewÓs

trucks are maintained.

10. Ma n y ECUA vehicles carry global positioning devices

(ÐGPSÑ) t hat transmit the vehi c leÓs precise location to ECUA at

two - minute intervals. The GPS devices also inform E CUA whether a

vehicle is moving, idle, or stopped.

11 . ECUA vehicle #1622 had such a device and was normally

driven by Mr. Baker or Tadarel Page.

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

Executive Director of Maintenance and Construction, alleged that

the patch crew was incurring overtime by intentionally being

lackadaisical in completing work assignments. As a result, ECUA

initiated an investigation of the patch crewÓs daily activities.

13. In addition to monitoring the GPS reports from the

vehicles, ECUA retained a private investigator, Terry Willette,

to surveil the patch crew and videotape their work or lack

thereof. From April of 2018 to some point in June of 2018,

Mr. Willette routinely su rveilled the patch crew for 4 to 12

hours a day.

Findings Regarding the Allegations from May 18, 2018

14. The May 18, 2018, GPS report for vehicle #1622

records that the truck was parked at a local se afood restaurant

on 610 South C Street from 11:4 3 a.m. until 1:17 p.m .

15. Because the patch crew is only allotted a 30 - minute

lunch break, this extended stop at the local seafood restaurant

would almost certainly amount to a violation of multi ple Manual

provisions unless weather conditions (such as heavy rain) made it

infeasible to attempt asphalt repairs.

16. Mr. Baker testified without contradiction that it was

raining when the patch crew was a t the seafood restaurant , and

there was no evi dence as to whether ECUA had a policy gover ning

what the patch crew was to do when it was raining .

17. With no evidence to contradict Mr. BakerÓs testimony

about the w e ather conditions or what the patch crew is capable o f

doing when it is raining, ECUA di d not prove by a preponderance

of the evidenc e that Mr. Baker falsely claimed that he worked

eight hours and took a 30 - minute lunch on May 18, 2018.

Findings Regarding the Allegations from May 23, 2018

18. The May 23, 2018, GPS report for vehicle #1622

in dicates that the truck was parked at Mr. BakerÓs home

from 9:33 a.m. to 9:46 a.m.

19. Mr. Baker does not dispute that he stopped at his home

at that time. However, he asserts that he took no actual lunch

break on May 23, 2018. Therefore, he argues that the 13 - minute

stop at his home should be of no concern to ECUA.

20. Nothing in the Manual specifies that ECUA employees

must take their lunch break at a certain time .

21. The May 23, 2018, GPS report indicates that vehicle

#1622 stopped at 3116 Godwin L ane from 11:43 a.m. to 12:47 p.m.

However, there is no record e vidence indicating what is at that

address. Therefore, it cannot be found that the stop at 3116

Godwin Lane amounted to a lunch break.

22. The ECUA failed to prove by a preponderance of t he

evidence that Mr. Baker effectively abandoned his work when he

drove vehicle #1622 to his home and stayed for 13 minutes on May

23, 2018.

Findings Regar d ing the Allegations from May 24 and May 31, 2018

23. Mr. BakerÓs t imesheet for May 24, 2018, indi ca tes he

reported to work at 6:59 a.m. and worked until 3:30 p.m.

24. On May 24, 2018, Mr. Willette observed Mr. Baker

at 12:59 p.m. leaving the ECUA building where he begins and ends

each workday. A GPS report records that vehicle #1622 was not

driven af ter 12:56 p.m. on May 24, 2018.

25. Mr. BakerÓs timesheet for May 31, 2018, indicates he

r e ported to work at 6:59 a.m. and worked until 3:30 p.m.

26. On May 31, 2018 , Mr. Willette observed Mr. Baker

at 3:09 p.m. leaving the ECUA building where he begin s and ends

each workday. A GPS report records that vehicle #1622 was not

driven after 3:10 p.m. on May 31, 2018.

2 7. Mr. Baker does not dispute that he left work at

12:59 p.m. on May 24, 2018, and at 3:09 p.m. on May 31, 2018.

28. Mr. Baker testified that he had permission from Greg

Rigby, the patch crewÓs supervisor, to leave early on those days.

29. As for why his timesheets indicated that he left

at 3:30 p.m. on both days, Mr. Baker explained that the

in dividual patch crew members did not fill o ut their timesheets.

Instead, Mr. Rigby or his assistant supervisor, Robert Boyd, Sr.,

entered each patch crew memberÓs time into the timekeeping

system.

30. ECUA proved by a preponderanc e of the evidence that

M r. BakerÓs timesheet s for May 24, 2018, an d May 31, 2018, were

inaccurate.

CONCLUSIONS OF LAW

3 1. DOAH has jurisdiction over the parties and the sub ject

matter of these proceeding s pursuant to sections 120.65(6)

and 120.57(1), Florida Statut es.

32. As the party asserting the affirmative of fac tual

issue s , ECUA has the b urden of demonstrating by a preponderance

of the evidence that Mr. Baker committed the violation s cited in

the June 25, 2018, letter. Balino v. DepÓt of HRS , 348 So. 2d

349 (Fla. 1st DCA 1977). ÐProof by a ÒpreponderanceÓ of th e

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).

33. ECUA alleges that Mr. Baker violated several Manual

p rovisions.

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 period, and notify his or her supervisor of

any discrepancies.Ñ

35. The preponderance of the evide nce demonstrates that

Mr. Baker violated Section B - 3 of the Manual by failing to verify

that his timesheets for May 24, 2018, and May 31, 2018, were

accurate. Even if Mr. Rigby filled out his subordinatesÓ

timesheets and authorized M r. Baker to leave ear ly on the days in

question, the Manual clearly i ndicates that individual ECUA

employees are responsible for verifying that the information in

their timesheet s is correct. There is no disput e that Mr. B aker

neglected to verify the accuracy of his timesheet s for May 24 ,

2018, and May 31, 2018.

36. 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 jo b , 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 affect s ECUAÓs ability to carry out its

assigned mission.Ñ

37. The preponderanc e of the evidence fails to demonstrate

that Mr. BakerÓs failure to verify the accuracy of his timesheets

for May 24, 208, and May 31, 2018, amounts to a violation of

Section B - 13 A (4). The unrebutted testimony was that Mr. Baker

had authorization to leav e early on those days and that his

supervisor handled his subordinatesÓ timesheets.

38. 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 int ent to

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

ÐrecordsÑ to include Ðemployee attendance and leave records.Ñ

39. The preponderance of the evidence fails to demonstrate

that Mr. Baker knowingly, willfully, or deliberately

misrepres ented the amount of time he spent at work on May 24,

2018, and May 31, 2018. The unrebutted testimony demonstrated

that Mr. Baker re lied on Mr. Rigby and/or Mr. Boyd to accurately

enter his timesheet information. Whi le Mr. Baker was responsible

for ensur ing that the information was accurate, there is no

evidence indica ting he should have known that M r. Rigby and/or

Mr. Boyd would input erroneous data.

40. Section B - 13 A (17) prohibits an unauthorized absence

from a work station or duty assignment Ðduring the established

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

break period without being properly relieved . . . .Ñ

41. T he unrebutted testimony indicated that Mr. Baker had

authorization to leave work early on May 24, 2018, and May 3 1,

2018. Therefore, ECUA failed to prove this allegation by a

preponderance of the evidence.

42. 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 employ ee fr o m performing

assigned ta s ks.Ñ

43. The preponderance of the evidence failed to demonstrate

that Mr. Baker violated Section B - 13 A (18).

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

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

45. The preponderance of the evidence does not demonstrate

that Mr. Baker failed to perform an assigned duty.

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

and/or quality of workÑ without elaboration.

47. The preponderance of the evidence does n ot demonstrat e

that the quality or quantity of Mr. BakerÓs work was substandard.

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

rules or guidelines or state or federal lawÑ and refers to Ð[t]he

failure to abide by ECUA rules, guidelines, directi ve, 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 e mployee

misconduct.Ñ

49. The preponderance of the evidence demonstrates that

Mr. Baker violated Section B - 13 A (33) through his violation of

Section B - 3 of the Manual. 2/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Coast Utilities Authority find that Dalton B. Baker violated

Section B - 3, attendance records ; and Section B - 13 A (33),

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

DONE AND ENTERED t his 1 8 th 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 18th day of September, 2018.

ENDNOTE S

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

violated a provi sion of the Manual are entitled to notice o f the

allegations and a predetermination hearing 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 Ad ministrative Hearings (ÐDOAHÑ) after

making a timely request. The parameters of the h e aring are

governed by the contract entered into between ECUA and DOAH.

2/ The contract between ECUA and DOAH specifies that the

Administrative Law Judge Ðwill determin e whether the employee has

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

on, or recommend, an y disciplinary penalty.Ñ

COPIES FURNISHED:

Dalton B. Baker

Apartment L

496 South Fairfield Drive

Pensacola, Florida 32506

Diane Marie Long oria, Esquire

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 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 appropriate penalty to be imposed.

The Executive Director will then determine the appro priate level

of discipline to be imposed upon the Respondent.