20-000378 Emerald Coast Utilities Authority vs. Robert Packer Status: Closed Recommended Order on Wednesday, August 19, 2020.

Summary: Respondent had an accident in an ECUA vehicle causing property damage, which constituted a violation of ECUA Human Resources Manual Rules B-13A(22) and (32).

P RELIMINARY S TATEMENT

By letter from ECUA’s sanitation collections manager dated January 13,

2020 ( Notice of Suspension), ECUA notified Respondent that he would be

suspended from hi s employment with ECUA for one eight - hour day on

January 3 0, 2020. The Notice of Suspension stated that Respondent’s

suspension was based on Respondent’s violations of ECUA ’s Human

Resources Manual, subsections B - 13 A (4) ( conduc t unbecoming an ECUA

employee ) , ( 22 ) ( negligent operation of ECUA vehicles or equipme n t) ,

(32 ) ( violation of safety practices ) , and (33) ( violation of ECUA rules or

guidelines or state or federal law ) . The Notice of Suspension further advised

Respondent that he had 10 days from his receipt of the letter within which to

submit a written req uest for a formal evidentiary hearing on ECUA’s

employment decision before an ad ministrative law judge with DOAH.

By hand - written note to ECUA’s director of human resources dated

January 15, 2020, and received by ECUA’s human resources and

administrative services that same day, Respondent timely submitted a

request for a formal hearing. O n January 24, 2020, ECUA referred the case

to DOAH for a formal hearing . The hearing was initially scheduled for

April 7, 2020 , but was twice continued and rescheduled to be heard on

July 27, 2020. It was first scheduled to be held live, but was then rescheduled

to be conducted via Zoom teleconferencing.

At the beginning of the hearing, Petitioner’s request that official

recognition be taken of c hapters 200 1 - 324 and 2004 - 398, Laws of Florida

(under tabs 1 and 2 in ECUA’s exhibit book), was granted. During the hearing, ECUA presented the testimony of five witnesses, including

Respondent, and o ffered 14 exhibits received into evidence as Exhibits P - 3

through P - 16 .

Respondent testified on his own behal f , and, by agreement, presented

additional testimony from some of the witnesses called by ECUA through

expanded cross - examination. Respondent offered six exhibits received into

evidence as Exhibits R - 1 through R - 3, R - 5, R - 7 and R - 8 .

On August 11, 2020, DOAH received late - filed exhibits from Respondent.

They were docketed but not considered.

F INDINGS OF F ACT

1. Escambia County Utilities Authority was declared an independent

special district with transferred assets and enumerated powers by chapter

2001 - 324, Laws of Florida. Escambia County Ut i lities Authority’s name was

chang ed to ECUA by chapter 2004 - 398. By law, ECUA provides utility

services throughout Escambia County, Florida, and has the power to appoint, remove, and suspend i ts employees, and fix their compensation within the

guidelines of E s cambia County Civil Service Rules. Id.

2. Respondent was hired by Petitioner as a sanitation equipment operator

in April 2009, with a start date of April 14, 2009. Respondent was promoted

with a salary increase to a sanitation equipment operator II (step 2) on

April 14, 201 0 , and received another raise on December 7, 2019, when he was

transferred to ECUA’s commercial division.

3. On the first day of his employment, Respondent acknowledged r eceipt

of a copy of ECUA’s Employee Handbook, which is a summary of ECUA’ s

benefits, policies, procedures, and rules , and was advised that a copy of

ECUA’ s Human Resources Manual is available for review by all employees.

4. On December 10, 2019, while cove ring another driver’s route,

Respondent was operating ECUA vehicle number 26B, a Half Pack Dura -

Pack garbage truck designed to pick up and empty large garbage containers

(dumpsters or cans).

5. Although Respondent had driven the route several times befor e, it was

not his regular route. One of the customers on the route was Eddie Craig

Express Automotive, an automotive body shop located at 6345 North Palafox

Street in Pensacola.

6. Respondent serviced the Eddie Craig Express Automotive location

between 4:0 0 and 5:00 a.m. , the morning of December 10, 2019. When he

arrived at the location, it was dark and there were a lot of cars in the lot

where the dumpster was located. There was a truck parked at an angle to the

dumpster that Respondent had to maneuver aro und.

7. Prior to dumping, which involved lifting the can over the garbage truck

with the truck’s front forks, Respondent got out of his truck and surveyed the site to make sure that the arms of the truck and the dumpster would not

make contact with the bui lding next to the dumpster.

8. Respondent then got back into the truck and dumped the can.

9. Respondent did not notice any contact with the roof or damage to the

building. Although the mirrors on the left side of the garbage truck were

sufficient to se e the left side of the dumpster while overhead, the mirrors on

the right side (where the building was located) were insufficient to view that side of the can during the dumping process.

10. In addition, b ecause of the noise of the garbage truck, especially

during the dumping process with hydraulic noises and additional engine

acceleration, it is unlikely that Respondent would have been able to hear any

contact that the dumpster or tru ck forks may have made with the adjacent

building.

11. Respondent did not notice any contact with or damage to the adjacent

building. After dumping the can, Respondent backed out, returning to the

roadway, carefully avoiding the cars parked in the lot.

12. According to the ECUA Vehicle Claim Report of the incident, Eddie

Craig, the owner of Eddie Craig Express Automotive, contacted ECUA risk

management staff and reported damage to the left front roof eave on the

corner of his building that he believed was done by an ECUA sanitation truck

on the morning of December 10, 2019.

13. Upon investigation at the scene on December 12, 2019, investigating

ECUA employees observed wood fragments and debris below the corner of the

building’s damaged roof which had paint smudges matching the paint of both

the dumpster and ECUA’s sanitation truc ks.

14. The dumpster on the site had scratches consistent with the theory that

the damage to the roof eave was caused by contact with the dumpster.

15. In addition, the ECUA employees who investigated the scene observed

a tire track adjacent to the buildi ng matching the tread on tires used on

ECUA vehicle number 26B, and other ECUA sanitation vehicles. The location

of the tire track was close enough to the building to support the conclusion

that the damage to the roof was caused by an ECUA truck while dump ing a

can.

16. Respondent confirmed that he was the one that serviced the can at

Eddie Craig Express Automotive on the morning of December 10, 2019. There

were no other dump services scheduled between the time Respondent dumped the can and the investigatio n on December 12, 2019.

17. The preponderance of the evidence demonstrates that, d espite

Respondent’s precaution of getting out of the truck and looking around prior to dumping the can, unfortunately, the dumpster or the green arms of the

garbage truck, or both, bumped the corner of the roof of the adjacent building,

bending away the flashing and knocking off pieces of wood.

18. Given the obstacles in the lot, it is quite apparent that Respondent

went out of his way to service the customer that morni ng. How ever,

especially in hind sight, it is equally obvious that it would have been better

not to service the dumpster that day.

19. ECUA’s sanitation collection manager , Keith Kyles , testified that ,

although not a written rule, he tells the sanitation truck driv ers all the time,

including Respondent, that in order to avoid accidents, they should not

attempt to service cans in precarious locations. Rather, according to the

advice given by Mr. Kyles, the drivers should leave the containers in place

and call in the problem so that the cans can be relocated.

20. Prior to this accident, a lthough written up on May 3, 2017, for an

unrelated incident involving failure to properly report the poor condition of a

vehicle’s tires, and on October 16, 2017, for failure to pick up bulk waste

items, Respondent had not had an accident with an ECUA vehicle since 2013.

21. ECUA’s commercial services supervisor, Ricky Fretwell, testified that

Respondent is a good employee. Mr. Fretwell said that he felt bad for

Respondent because of the accident. According to Mr. Fretwell, Respondent

“went out of his way, but it cost him.”

22. Mr. Fretwell confirmed that, because of the noise during dumping, it

was quite possible that Respondent did not notice that an accident had

occurred.

23. Mr. F retwell, as one of the ECUA employees who investigated the

accident scene on December 12, 2019, however, also confirmed that the angle

of the tire track, the wood shards, paint scrapes , and other evidence was

consistent with the conclusion that the damage occurred that morning of December 10, 2019, when Respondent serviced the site.

24. Mr. Fretwell further confirmed that, consistent with Mr. Kyles’ s

testimony, according to unwritten protocol, instead of servicing the site that

morning, Respondent should ha ve left the dumpster in place and called it in.

C ONCLUSIONS OF L AW

25. DOAH has jurisdiction over the s ubject matter and parties to this

proceeding. See Administrative Law Judge Services Contract effective

March 3, 2006; § 120.65(6), Fla. Stat. (201 4 ).

26 . ECUA has the burden of proof by a preponderance of the evidence.

See paragraph 7(j), contract between ECUA and DOA H .

27. In this case, ECUA demonstrated by a preponderance of the evidence

that Respondent was involved in an accident while operating an ECU A

vehicle resulting in damage to the roof eave of a building located at the Eddie

Craig Express Automotive location, 6345 North Palafox Street, Pensacola,

Florida, between 4:00 and 5:00 a.m. on the morning of December 10, 2019 .

28. Policies in the ECUA’s H uman Resources Manual and Employee

Handbook (Manual) pertinent to the facts of this case, and referenced in the

Notice of Suspension, include the following numbered paragraphs found under subsection A entitled “Disciplinary Offenses” in Manual section B - 13

entitled “Discipline Guideline s ”:

4. Conduct unbecoming an ECUA employee:

Any 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 employee’s effectivene ss as an ECUA employee, or that adversely affects the employee’s ability to continue to perform their job, or which adversely affects ECUA’s ability to carry out its assigned

mission. C o nduct unbecoming an ECUA employee

includes any conduct which adversely affects the

morale or efficiency of the ECUA, or any conduct

which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the

provision of ECUA services. The seriousness of the

conduct which constitutes a “conduct unbe coming

an ECUA employee” offense determines the appropriate discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or

conduct which are unbecoming are dissimilar to

each other, cumulative discipline may be imposed.

* * *

22. Ne gligent operation o f ECUA vehicles or

equipment:

The negligent operation of ECUA vehicles or

equipment which may or may not result in personal injury. “Negligent operation” means a failure to

operate ECUA vehicles or equipment with proper

care.

* * *

32 . Violation of safety practices:

T he failure to adhere to or follow established safety

procedures. This includes the failure to wear safety equipment and performing any unsafe action.

33. Violation of ECUA rules or guidelines or state or Federal law:

The failure to abide by ECUA rules, guidelines,

directive, or sta te or federal statutes. This may

i nclude, but is not limited to, misuse of position,

giving or accepting a bribe, discrimination in employment, or actual knowledge of a n d failure to

take correcti ve action or report rule violations and

employee misconduct.

29. With regard to Respondent’s alleged violation of Manual section B - 13

A (4) , entitled “Conduct unbecoming an ECUA employee,” considering the

language used defining that violation, it is concl uded that Respondent’s

accident does not implicate that section. Section B - 13 A (4) speaks in terms of

“moral turpitude” and ability to perform the job, with an implied intent

element. The facts show, however, that Respondent is a good employee who

made an inadvertent mistake. The evidence further shows that Respondent

was not aware that the accident had occurred so that his failure to report was

not purposeful. In sum, a fair reading of section B - 13 A (4), in view of the

facts, does not implicate a violati on of that section.

30. As to Respondent’s alleged violation of Manual section B - 13 A (22),

entitled “ Negligent operation o f ECUA vehicles or equipment ,” the facts

derived from the preponderance of the evidence, as outlined above,

demonstrate that Responde nt failed to operate ECUA vehicle number 26B

with due care, resulting in an accident and property damage. Therefore, it is

concluded that Respondent violated section B - 13 A (22).

31. The evidence also demonstrated that Respondent violated section B - 13

A (3 2), entitled “Violation of safety practices.” Although unwritten, the safety

practice of leaving cans that cannot be safely serviced, and calling them in,

was not followed by Respondent, resulting in an accident.

32. Finally, as to the alleged violation of Manual section B - 13 A (33),

entitled “Violation of ECUA rules or guidelines or state or Federal law,” it is concluded that Respondent’s conduct in this instance did not violate that section. Although the title of that section seems broad, the specific exa mples

of that section require scienter which, in this case, is not present.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

Recommended that the Executive Director of the Emerald Coast Utilities

Authority find that Respondent violated ECUA Human Resources Manual

and Employee Handbook sections B - 13 A (22) and (32), but not sections B - 13

A (4) or (33), as concluded above, and impose such discipline on Respondent

as determined appropriate under the provisions of said Ma nual.

D ONE A ND E NTERED thi s 19th day of August, 2020 , in Tallahassee, Leon

County, Florida.

J AMES H. P ETERSON , III

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 19th day of August , 2020 .

C OPIES F URNISHED :

Robert L. Packer

2329 Silverside Loop

Pensacola, Florida 32526

Jessica L . Scholl, Esquire

Moore, Hill & Westmoreland, P.A.

Post Office Box 13290

Pensacola, Florida 32591

(eServed)

Stephen E. Sorrell, Executive Director

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

Cynthia Sutherland, Di rector

Human Resources and Administrative Services

Emerald Coast Utilities Authority

9255 Sturdevant Street

Pensacola, Florida 32514

N OTICE O F R IGHT T O S UBMIT W RITTEN A RGUMENT

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 app ropriate penalty to be imposed. The Executive Director

will then determine the appropriate level of di scipline to be imposed upon the

Respondent.