18-003702 Emerald Coast Utilities Authority vs. Michael J. Reiter Status: Closed Recommended Order on Tuesday, September 25, 2018.

Summary: Petitioner proved Respondent violated provisions within the Human Resources Manual on May 30, 2018.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD COAST UTILITIES

AUTHORITY,

Petitioner,

vs. Case No. 18 - 3702

MICHAEL J. REITER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a form al administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

of the Division of Administrative Hearings (ÐDOAHÑ), in

Pensacola, Florida, on August 30, 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: Michael J. Reiter, pro se

3302 East Lloyd Street

Pensacola, Florida 32503

STATEMENT OF THE ISSUE

Whether Respondent violated provisions of PetitionerÓs

Human Resources Manual and Employee Handbook (Ðthe ManualÑ) on

April 20 and May 30, 2018, as charged in the agency action letter

dated June 25, 2018.

PRELIMINARY STATEMENT

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

Coast Utilities Authority (ÐECUAÑ) notified Michael J. Reiter of

allegations that he violated multiple provisions of the Manual on

April 20 and May 30, 2018. The letter informed Mr. Reit er 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. Reiter via a letter dated June 25, 2018, of its intention to

suspe nd him for three workdays without pay:

In summary, the findings from the

investigation confirmed you were loafing and

performed an insufficient quantity of work on

April 20, 2018, while claiming three hours of

overtime pay. You were observed deliberately

wasting time and then leading another truck

on a circuitous route to a work site in a

fashion which was designed to drag out your

workday and thus artificially increase your

overtime hours on that date. Your testimony

during the hearing regarding your rea son for

taking a time - wasting route, via Woerner Turf

Nurseries, to the worksite on Intendencia

Street, was entirely self - serving and was not

credible.

Additionally, the findings from the

investigation confirmed you took ECUA

property without authorizat ion on May 30,

2018, when you took PVC pipe without

authorization. During your testimony at the

hearing, you admitted you took the PVC pipe

but claimed it was salvage material to be

discarded. The pipe in question clearly

could have been re - used. Moreov er, if

members of the public observed your behavior,

their opinion of ECUA would have been

diminished, as you were clearly taking the

pipe to use it for a non - governmental

purpose. As specified in Section B - 13 A (27)

[Theft or stealing] in the Human Resou rces

Manual, the unauthorized taking of any ECUA

property or equipment with the intent to

permanently deprive ECUA of it is a violation

of policy.

Mr. Reiter 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 DOAH, ECUA forwarded the request for hearing to

DOAH.

At the final hearing, which took place as scheduled on

August 30, 2018, ECUA called three witnesses: Kimber ly Scruggs,

ECUAÓs Assistant Director of Human Resources and Administrative

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

and Terry Willette, private investigator.

ECUA Exhibits 1 through 10 were admitted into evidence.

Mr. Reiter testifie d on his own behalf and offered

Exhibits 1 through 3 that were admitted into evidence.

ECUA made a digital audio recording of the proceedings and

provided it to the undersigned immediately after the conclusion

of the final hearing.

Unless otherwise ind icated, 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 Utilities Authority an independent special district with

transferred assets and enumerat ed 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 committed to providing the highest quality

serviceÑ and that ÐECUA will always provide co st - effective

services.Ñ

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

order to govern employee conduct.

4. During all times relevant to the instant case,

Mr. Reiter was a utilities service worker assigned to ECUAÓs

patch services division (Ðt he patch crewÑ) ; and he acknowledged

on January 4, 2017, that a copy of the Manual was available to

him.

5. 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.

6. A significant part of the patch crewÓs work involves

filling holes left after other ECUA employees have performed

utility work.

7. Mr. Reiter drives a truck that delivers sod, asphalt,

and/or dirt to work areas. He begins and ends each workday at an

EC UA facility on Sturdevant Street in Pensacola, Florida.

8. ECUAÓs management received information from an anonymous

source alleging that the patch crew was loafing and abusing

ECUAÓs overtime policy. As a result, ECUA retained a private

investigator, T erry 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.

Findings Regarding the Allegations from April 20, 20 18

9. On April 20, 2018, Mr. Willette observed Mr. Reiter and

a coworker leaving an ECUA facility in a n ECUA truck at 4:00 p.m.

and arriving at Woerner Turf on Creighton Road in Pensacola

at 4:16 p.m.

10. The preponderance of the evidence does not demon strate

that Mr. Reiter deliberately extended his workday by taking a

circuitous route from the ECUA facility to Woerner Turf.

11. After picking up sod, Mr. Reiter and his coworker left

Woerner Turf at 4:38 p.m. and arrived at Intendencia Street in

downt own Pensacola at 5:16 p.m. At this point, Mr. Willette

received a call to follow another ECUA employee and discontinued

his surveillance of Mr. Reiter.

12. There was conflicting testimony regarding the shortest

possible route that Mr. Reiter could have taken upon leaving

Woerner Turf. Given that Mr. Reiter was driving to downtown

Pensacola just before Ðrush hourÑ on a Friday afternoon,

38 minutes is not an unreasonable amount of time to drive from

Creighton Road to Intendencia Street in downtown Pensa cola.

13. The preponderance of the evidence does not demonstrate

that Mr. Reiter deliberately extended his workday by taking a

circuitous route from Woerner Turf to the worksite on

Intendencia Street.

14. A Ðdaily overtime reportÑ for April 20, 2018, in dicates

Mr. Reiter worked from 3:30 p.m. to 6:30 p.m. and claimed three

hours of overtime.

15. To whatever extent that ECUA takes issue with the total

amount of overtime claimed by Mr. Reiter on April 20, 2018, there

is no evidence as to what work Mr. R eiter performed after

Mr. Willette discontinued his surveillance of Mr. Reiter s hortly

after 5:16 p.m. that day, and thus there is no support for a

finding that Mr. Reiter dragged out his workday or artificially

increased his overtime hours on that date.

Findings Regarding the Allegations from May 30, 2018

16. On May 30, 2018, Mr. Willette photographed Mr. Reiter

taking PVC pipe belonging to ECUA and placing it in his personal

vehicle.

17. Mr. Reiter acknowledged during his direct testimony

that he to ok the PVC pipe without authorization from a

supervisor. He testified that the PVC pipe was Ðspent materialÑ

and that such material is always discarded.

18. Mr. Reiter testified that he ultimately returned the

PVC pipe in question.

19. The preponder ance of the evidence demonstrates that

Mr. Reiter took the PVC pipe without authorization.

CONCLUSIONS OF LAW

20. 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.

21. As the party asserting the affirmative of a factual

issue, ECUA has the burden of demonstrating by a preponderance of

the evidence that Mr. Reiter committed the violations cited in

the June 2 5 , 2018, letter. Balino v. DepÓt of HRS , 348 So. 2d

349 (Fla. 1st DCA 1977). 2/ 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

2 000).

22. ECUA alleges that Mr. Reiter violated the following

Manual provisions: Section B - 13 A (4), conduct unbecoming an

ECUA employee; 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; and

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

state or federal law.

23. 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 th eir job,

or which adversely affects ECUAÓs ability to carry out its

assigned mission.Ñ

24. The preponderance of the evidence demonstrates that

Mr. Reiter violated Section B - 13 A (4) on May 30, 2018, when he

took PVC pipe belonging to ECUA without authori zation.

25. 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

26. The preponderance of the evidence does not demonstrate

that Mr. Reiter violated Section B - 13 A (18) on April 20, 2018,

when he was transporting sod from Woerner Turf to a worksite on

Intendencia Street.

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

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

28. The preponderance of the evidence does not demonstrate

that Mr. Reiter violated Section B - 13 A (21) on April 20, 2018,

or May 30, 2018.

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

and/or quality of workÑ without elabo ration.

30. The preponderance of the evidence does not demonstrate

that Mr. Reiter violated Section B - 13 A (26) on April 20, 2018,

or May 30, 2018.

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

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

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

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

32. The preponderance of the evidence demonstrates that

Mr. Reiter violated Section B - 13 A ( 27 ) on May 30, 2018, wh en he

took PVC pipe belonging to ECUA without authorization.

33. 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 fede ral 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

34. The preponderance of the evidence demonstrates that

Mr. Reiter violated Section B1 - 13 A (33) through his violations

of Section B - 13 A (4) and Section B - 13 A ( 27 ) . 3/

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 Michael J. Reiter violated:

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

B - 13 A (27), theft or stealing; and Section B - 13 A (33),

violation o f ECUA rules or guidelines or state or federal law.

DONE AND ENTERED this 25th day of September, 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearin gs

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 25th 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 hearing conducted by ECUA. If

an employee is dissatisfied with the outcome of the

predetermination hearing, the employee is entitled to a hearing

before DOAH after making a timely request. The parameters of the

hearing are governed by the contract entered into between ECUA

and DOAH.

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

preponderance of the evidence.Ñ

3/ 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 y

disciplinary penalty.Ñ

COPIES F URNISHED:

Diane Marie Longoria, Esquire

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

114 East Gregory Street, 2nd Floor

Pensacola, Florida 32502

(eServed)

Michael J. Reiter

3302 East Lloyd Street

Pensacola, Florida 32503

Stephen E. Sorrell, Executive Direc tor

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 R IGHT TO SUBMIT EXCEPTIONS

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 ap propriate penalty to be imposed.

The Executive Director will then determine the appropriate level

of discipline to be imposed upon the Respondent.