21-001189 City Of Clearwater vs. Wilton Hill Status: Closed Recommended Order on Tuesday, August 31, 2021.

Summary: Petitioner proved that Respondent violated City policy and procedure. A two-day suspension of employment without pay is recommended.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C ITY OF C LEARWATER ,

Petitioner ,

vs. Case No. 21 - 1189

W ILTON H ILL ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to not ice, a final hearing in this cause was held in Tallahassee,

Florida, via Zoom video conference on June 3 , 2021, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative Hearings.

A PPEARANCES

For Petitioner: Owen Kohler, Esquire

City of Clearwater

600 Cleveland Street , Suite 600

Clearwater, Florida 33755

For Respondent: Richard Michael Pierro, Esquire

Calciano Pierro, PLLC

146 Second Street North , Suite 304

St. Petersburg, Florida 33701

S TAT EMENT OF T HE I SSUE S

Whether Respondent Wilton Hill committed the violations alleged in the

Decision - Making Leave and Mandated EAP Referral notice ; and, if so, the

appropriate discipline that should be imposed.

P RELIMINARY S TATEMENT

Wilton Hill (Responde nt) is employed by the City of Clearwater, Florida

(Petitioner/City). The City informed Respondent that his employment would

be suspended without pay for two days due to alleged violations of the

Clearwater Civil Service Board Rules and Regulations (CSR) a nd the

Performance and Behavior Management Program (PBMP). Respondent filed

a Notice of Appeal contesting the CityÔs intended action. The City, pursuant

to contract, referred the matter to the Division of Administrative Hearings

(DOAH) for a disputed - fact hearing.

During the hearing, Petitioner offered the testimony of Jeremy Williams,

Jennifer Poirrier, and Daniel Mayer. Respondent testified on his own behalf

and called no other witnesses. PetitionerÔs Exhibits 1 through 12 were

admitted into evidence. Re spondentÔs Exhibits 1 through 21 were admitted

into evidence, with Exhibits 1 through 12 admitted for ÑbackgroundÒ

purposes only.

A two - volume Transcript of the disputed - fact hearing was filed with

DOAH on June 24, 2021. The deadline for filing p roposed o rders was

extended several times at the request of the parties. On August 2, 2021, each

party filed a Proposed Recommended Order (PRO).

F INDINGS OF F ACT

1. The City is a municipality governed by a city council. A city manager

oversees the CityÔs operation s.

2. On September 8, 2015, Petitioner hired Respondent to work as a senior

systems programmer , which is categorized by the City as a ÑClassifiedÒ

service position.

3. The Clearwater Civil Service Board has adopted rules and regulations

which govern the co nduct of all City employees. Chapter 13 of the CSR

provides the framework for suspending, demoting, and dismissing City

employees.

4. By correspondence dated February 22, 2021, Petitioner provided

Respondent with what is commonly referred to as a Ñpredeter mination noticeÒ

and advised Respondent therein that it was believed that he Ñcommitted an

offense warranting formal discipline.Ò

5. The predetermination notice states, in material part, that Respondent

violated ÑIntegrity Standards, listed on page iv of the official PBMP manual,

adopted by the City of Clearwater on February 15, 1998 and revised on

July 1, 2014, to wit: [1] Violation of the provisions of Chapter 13, Section 3, of

the City Civil Service Rules and Regulations[;] [and] [2] [d]ishonesty or

unt ruthfulness or willful refusal to provide information or otherwise

cooperate during an internal investigation or when directed to do so by

competent authority.Ò The notice also specifically alleges that Respondent

violated chapter 13, section 3(b), (f), an d (l) of the CSR . The City seeks to

discipline Respondent based on events that occurred on or about February 1,

2, 3, and 10, 2021, respectively.

6. On February 24, 2021, Respondent met with the director of his

department and presented his version of the e vents in question. Following

the meeting, the City, by correspondence dated March 5, 2021, notified

Respondent that he would be placed on Ña two - day Decision - Making Leave

and mandated EAP for ... violating the Clearwater PBMP Citywide Personal

Responsibili ty, Integrity, and Excellence standards.Ò

Performance and Behavior Management Program (PBMP)

7. The City developed the PBMP in order Ñto provide a method of working

with employees whose performance or behavior does not meet the CityÔs

standards.Ò The philo sophy of the program Ñis based upon the belief that, in

most cases, employees can change behavior and improve performance when

standards and expectations are clear and when employees are given

opportunities to change.Ò Whenever practicable, Ñthe City will provide

intervention, coaching, and corrective guidance or counseling ... for

employees ... in order to bring their performance or behavior up to standard.Ò

The program recognizes, however, Ñthat some behaviors that are serious and

are direct violations of City Policy may warrant immediate disciplinary action

up to and including termination.Ò

8. According to the PBMP manual, there are three categories of

performance and behavior: (1) Personal Responsibility ; (2) Integrity ; and

(3) Excellence. As to each, t he manual notes that:

These categories are based on employeesÔ

willingness or ability to meet standards of behavior

or performance. Willingness refers to the

employeesÔ decision to meet expectations, follow

rules and policies, and perform work that meets

e fficiency and quality standards. Ability refers to

the employeesÔ capability and skills in performing

job tasks. The first two categories, Personal

Responsibility and Integrity, are considered Ñwill

doÒ categories because they typically involve

situations wherein the employee has a choice and

makes a decision about whether or not to meet the

standards. The third category, Excellence, is

considered a Ñcan doÒ category, because it most

often refers to a situation where the employee is

not able to perform up t o standard because of a lack

of resources, skill, or capability. City of Clearwater

expectations for each of these three categories are

stated below. Personal Responsibility (ÑWill DoÒ

Issues) - City of Clearwater employees will be held

personally accounta ble for the actions they take in

meeting the customer service needs of the City and

the community the organization serves. Employees

are expected to take full responsibility for their

conduct and job performance and exhibit

commitment to fulfilling their r esponsibilities to

the best of their ability. Integrity (ÑValue and

EthicsÒ Issues) - As public employees representing

the citizens of Clearwater, employees are expected

to commit to the highest standards of personal and

professional integrity. The City ex pects employees

to communicate openly and continually

demonstrate honesty, fairness, and respect for

others. Employees should do what is ethically

appropriate. Employees are expected to adhere to

City policies. Excellence (ÑPerformance/Can DoÒ

Issues) - Ci ty of Clearwater employees have an

obligation to provide the highest quality of service

and results to our customers. This commitment to

excellence involves developing the job knowledge

and skills needed to perform the tasks required and

to continually imp rove the CityÔs ability to meet the

needs of the community we serve.

9. The PBMP manual generally lists 75 Personal Responsibility

Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding

the Integrity Standards, the PBMP manual notes in bold print that

Ñimmediate formal discipline, up to and including termination, may be

recommendedÒ for a violation of these standards. The PBMP manual does not

set forth any such illumination for the other standards. As previously noted,

the City contends that Respondent violated several of the PBMP Integrity

Standards and should therefore be subjected to formal discipline.

Background Ï Family Medical Leave Act (FMLA)

10. Respondent suffers from a serious medical condition that occasionally

impacts his abi lity to perform his job. Under the CityÔs policy related to

FMLA, an employee may intermittently take leave under FMLA Ñwhenever

medically necessary È because the employee is seriously ill and unable to

work.Ò The policy also instructs that Ñ[e]mployees sh ould make a reasonable

effort to schedule intermittent leave as to not unduly disrupt office

operations.Ò

11. Because of RespondentÔs underlying medical condition, Petitioner,

since at least November 2020, has allowed Respondent Ñ4 [to] 5 episodes per

mont hÒ during which Respondent can take FMLA leave without having to

submit documentation related to the same. As a practical matter, this means

that when Respondent experiences a medical episode that impairs his ability

to work, he is to contact his superviso r, if possible, and let the supervisor

know that he is utilizing FMLA leave for his anticipated absence from work.

Herein lies Ñthe rubÒ in the instant dispute.

RespondentÔs Understanding of Leave Protocol

12. According to the CityÔs governing manual for supervisory,

administrative, managerial, and professional employees (SAMP), ÑClassified

employees who have successfully completed an initial probationary period

become certified to regular employment status and have certain rights of

appeal through the Ci vil Service grievance process.Ò The SAMP manual also

provides that ÑClassified SAMP employees will not be disciplined except for

just cause.Ò

13. Section 2 of the SAMP manual provides that ÑClassified SAMP

employees must obtain approval from a person of co mpetent authority prior

to working any hours outside of their established work schedule, either before

their designated starting time or after their designated quitting time or

during an unpaid meal period.

14. C hapter 22, section 1, of the CSR provides as follows:

Normal Work Hours -- The number of hours

constituting a regular schedule work week for City

Employees is specified by the City and excludes

meal periods. In positions requiring shift work, the

City reserves the right to include meal periods as

a ctual time worked. Regularly scheduled work

hours may be adjusted or ÑflexedÒ within a specific

work week with proper notification and at the

mutual convenience of the employee and the

respective department. Such adjustments or

flexing of work hours must be approved in advance

by the respective department È .

15. C hapter 4 of the CSR defines Ñflex timeÒ as Ñthe process whereby an

employeeÔs regularly scheduled hours of work within a specific workweek are

adjusted with proper notification and at the mutual convenience of the

employee and the respective department. Such flexing of work hours must be

approved in advance by the respective department È . Ò

16. Respondent, at all times material hereto, understood that he was to

first contact his supervisor before ta king time off related to a medical episode.

Evidence of RespondentÔs understanding is illustrated in emails that he sent

to his supervisor on December 2 and 31 , 2020 .

February 1 and 2, 2021

17. Sometime around January 2021, the City implemented a number of

workplace measures designed to mitigate the risk of contracting and

spreading the COVID - 19 virus. One such mitigation effort allowed employees

Ñto work from home on their assigned remote day.Ò During February 2021,

Tuesdays were RespondentÔs assigned days to telecommute.

18. On Monday, February 1, 2021, the following emails were exchanged

between Respondent and his supervisor:

1) From: Williams, Jeremy

Sent: Monday, February 1, 2021 (2:12 p.m.)

To: Hill, Lloyd

Subject: Feb 01, 2021

Hi Lloyd,

Where a re you?

Thanks,

Jeremy

2) From: Hill, Lloyd

Sent: Monday, February 1, 2021 (2:15 p.m.)

To: Williams, Jeremy

Subject: Feb 01, 2021

At lunch

3) From: Hill, Lloyd

Sent: Monday, February 1, 2021 (2:21 p.m.)

To: Williams, Jeremy

Subject: Feb 01, 20 21

Precisely; ( Respondent provided the email

address for the auto/electronics store where he

was located)

4) From: Williams, Jeremy

Sent: Monday, February 1, 2021 (4:00 p.m.)

To: Hill, Lloyd

Subject: Feb 01, 2021

Can you confirm what time you a rrived today?

5) From: Hill, Lloyd

Sent: Monday, February 1, 2021 (4:04 p.m.)

To: Williams, Jeremy

Subject: Feb 01, 2021

Is anyone else required to confirm their time

today?

6) From: Williams, Jeremy

Sent: Monday, February 1, 2021 (4:08 p.m.)

To: Hill, Lloyd

Subject: Feb 01, 2021

I put the timesheets on your desk for time entry

this AM and noticed that your laptop was not

here and your desk looked to be unoccupied, at

2:30 your desk looked the same. We need to

make s ure to charge your time corre ctly, so if

you had a n appointment not reflected on my

calendar I need to update it.

Please confirm your arrival time, and how long

of a lunch you took for my records please.

Thank you,

Jeremy

19. O n Tuesday, February 2, 2021, Respondent and his supervi sor

exchanged additional emails regarding RespondentÔs absence from work:

1) From: Williams, Jeremy

Sent: Tuesday, February 2, 2021 (10:21 a.m.)

To: Hill, Lloyd

Subject: Feb 01, 2021

Hi Lloyd,

Can you confirm your times for yesterday as I

requested please?

Thank you,

Jeremy

20. Soon after sending the email to Respondent at 10:21 a.m. , on

February 2, 2021, Mr. Williams met with Respondent via videoconference.

During the videoconference, Mr. Williams again asked Respondent about his

whereabouts and a rrival time to the office on February 1, 2021. Mr. Williams

credibly testified that Respondent, in response to his inquiry, became

argumentative by wanting to know if other employees where being

questioned about their whereabouts and arrival time to work. Respondent

never answered the questions posed to him by Mr. Williams, but instead,

advised Mr. Williams that his time away from the office on February 1, 2021,

should be charged as one of his monthly FMLA episodes. Mr. Williams was

confused by RespondentÔs request, in part, because Respondent was

requesting FMLA leave that covered time when Respondent actually

performed certain work - related tasks, albeit via unauthorized

telecommuting.

21. Shortly after the videoconference ended, Respondent and Mr. Williams

had additional discussions regarding the matter as reflected in the following

emails :

1) From: Hill, Lloyd

Sent: Tuesday, February 2, 2021 (11:12 a.m.)

To: Williams, Jeremy

Subject: Re: Lloyd - ? 5.0hrs

I am using this as one episode of FMLA. My

[red acted] was too high to drive. I am notifying

you after the incapacity has passed as allowed

by law.

2) From: Williams, Jeremy

Sent: Tuesday, February 2, 2021 (11:32 a.m.)

To: Hill, Lloyd

Subject: Re: Lloyd - ? 5.0hrs

Hi Lloyd,

We will need to refer to HR as to what is

allowed. I will update this outage once we hear

back from them.

Thank you,

Jeremy

3) From: Hill, Lloyd

Sent: Tuesday, February 2, 2021 (11:35 a.m.)

To: Williams, Jeremy

Subject: Re: Lloyd - ? 5.0hrs

To be clear, I have notified you that I was

incapacitated due to an underlying condition

covered by my FMLA on the morning of

February 1st.

4) From: Williams, Jeremy

Sent: Tuesday, February 2, 2021 (11:37 a.m.)

To: Hill, Lloyd

Subject: Re: Lloyd - ? 5.0hrs

Hi Lloyd,

I only have record of your FMLA request for the

AM of 2/1/2021 on a video call that occurred on

2/2/2021.

Can you send me the notification that you sent

me on the 1st indicating this? It[ Ô s] possible that

I m issed it.

Thanks,

Jeremy

5) From: Hill, Lloyd

Sent: Tue sday, February 2, 2021 (12:14 p.m.)

To: Williams, Jeremy

Subject: Re: Lloyd - ? 5.0hrs

I think you missed it. I donÔt have a copy.

6) From: Williams, Jeremy

Sent: Tuesday, February 2, 2021 (12:46 p.m.)

To: Hill, Lloyd

Subject: Re: Lloyd - ? 5.0hrs

Hi Lloyd,

This doesnÔt make any sense. Either you

requested the time or you didnÔt. If you donÔt

have a record, you didnÔt request it. I certainly

did not receive anything. I have re - reviewed my

emails, teams and sms and see nothing from you

indicating th at you would be out of the office on

Monday (2/1/21) morning and early afternoon.

We will confer with HR as to what we can use to

charge your time.

Thank you,

Jeremy

22. As previously mentioned, the City, on or about February 22, 2021,

informed Responde nt that it intended to suspend him for two days. In

response to the CityÔs notice of disciplinary suspension, Respondent stated

the following with respect to matters that transpired on February 2 and 3,

2021:

On February 1, 2021, I began working from home

at about 7 AM. I typically log on the se r ver in the

morning before leaving for work to check on emails

and overall functioning of all systems, as well as

respond to the system users. Due to severe anxiety

arising out of my continuing concern over the risk

to my health posed by the pandemic as well [as] the

ongoing dispute with the City over my ADA

reasonable accommodation request to telecommute,

I experienced [redacted] symptoms.

My first È reading taken was [redacted] putting

me in the range of an ... eme rgency. As such, I

decided to remain at home and continue to work. I

did not feel safe to drive to the office and kept

monitoring my [redacted] to determine whether I

needed to go to the emergency room. When my

readings returned to a safe level, I arrived at the

office later that day around 3 PM. My manager

acknowledged my presence because I walked past

his office several times. I am more than willing to

provide documentation of the ... readings I took

that day.

On February 2, 2021, I had a video meeting with

my manager and explained to him the stress that I

was experiencing. At that time, I requested 5

hours of leave (against my available intermittent

FMLA leave) because he would not consider time I

spent at home earlier that day as hours worked,

despite the fact that I performed my job duties

during that period.

23. RespondentÔs suggestion of incapacity is not supported by the

evidence. By his own admission, Respondent, on the morning of Monday,

February 1, 2021, was able to log onto the CityÔs server w hich allowed him to

Ñcheck on emails and overall functioning of all systems, as well as respond to

the system users.Ò Respondent also admits that after his first elevated

reading he decided to Ñremain at home and continue to workÒ because he did

not Ñfeel safe to drive.Ò

24. The issue is not whether Respondent felt well enough to drive, but

whether he felt well enough to send an email. If Respondent felt well enough

to Ñrespond to the system users, and continue to work,Ò then he was certainly

capable of se nding an email to his supervisor. There is no credible evidence

that Respondent suffered from any form or type of medical condition on the

morning of February 1, 2021, which prevented him from notifying his

employer that he was taking an ÑepisodeÒ of FMLA leave for the workhours in

question.

25. It is undisputed that Monday, February 1, 2021, was not RespondentÔs

designated day to telecommute. Chapter 12, section 1, of the CSR clearly

provides that the City determines normal work hours for its employees, a nd

that employee - initiated changes to the normal work hours Ñmust be approved

in advance.Ò The uncontroverted evidence establishes that Respondent was

not authorized to telecommute on Monday, February 1, 2021, and that he did

so in violation of the CSR and SAMP manual. RespondentÔs assertion that he

did not violate City rules and regulations Ñbecause he performed [his] job

dutiesÒ while at home on February 1, 2021, is irrelevant because, as noted

above, he lacked authority to telecommute on the day in quest ion.

February 3, 2021

26. Respondent reported to work on February 3, 2021, and worked until

leaving the building at 1:30 p.m. Respondent did not return to work on this

date and several hours later initiated the following email chain with his

supervisor:

1) From: Hill, Lloyd

Sent: Wednesday, February 3, 2021 (4:27 p.m.)

To: Williams, Jeremy

Subject: One FMLA Episode From Now Till

Tomorrow

[There was nothing written below the subject line].

2) From: Williams, Jeremy

Sent: Wednesday, February 3, 2021 (5 :13 p.m.)

To: Hill, Lloyd

Subject: RE: One FMLA Episode From Now Till

Tomorrow

I have you down for Tomorrow in the AM, youÔll

confirm with me the specific amount of time

when you get in.

See you tomorrow,

Jeremy

3) From: Williams, Jeremy

Sent: Wednesday, February 3, 2021 (5:21 p.m.)

To: Hill, Lloyd

Subject: RE: One FMLA Episode From Now Till

Tomorrow

Hi Lloyd, Did you mean to say that you took off

work at 4:30 p.m. today (using FMLA)? I

stopped by your desk to clarify what you meant

by this email, you werenÔt there (5:20 p.m.).

Office 365 sa w you last at 4:48 p.m. IÔm pretty

confused if you can clarify, IÔd appreciate it.

Thank you,

Jeremy

4) From: Hill, Lloyd

Sent: Wednesday, February 3, 2021 (5:47 p.m.)

To: Williams, Jeremy

Subject: O ne FMLA Episode From Now Till

Tomorrow

Correct

27. Before Respondent prematurely ended his workday on February 3,

2021, he had been assigned that morning to provide IT support services for

the CityÔs recreation centers. Mr. Milou Louis, who worked as se nior systems

programmer at the CityÔs recreation centers, was retiring from employment

with the City, and Respondent, because of his availability and skill set, was

tasked with replacing Mr. Louis.

28. In explaining his actions related to his early departu re from work on

February 3, 2021, Respondent stated the following:

On February 3, 2021, I was informed that I was

required to be on - site at the CityÔs Parks & Rec

centers where COVID - 19 infection rates were

among some of the highest for City employees.

Not ably, this documented infection rate does not

consider infected members of the public who may

use the centers. I immediately informed my

manager, who rendered his lay opinion that I was

at no higher risk than anyone else. Notably, I had

not previously been assigned to be on - site, let alone

during a pandemic. Thereafter, I suffered a sever

anxiety attack because I legitimately feared for my

health. At that point I left the building.

Management told me I left at 1:30 PM. I contacted

my supervisor at around 4 PM informing him I

would take available FMLA leave for the rest of the

day.

29. As an initial matter, there is no credible evidence of record that

RespondentÔs particular work environment at the recreation centers would

have been any more at risk for COVI D - 19 expos ur e than his regular work

environment, or say, the electronics store where Respondent stopped during

his lunch break on February 1, 2021.

30. During RespondentÔs email exchange with his supervisor on

February 3, 2021, Mr. Williams clearly communi cated to Respondent that he

was confused about RespondentÔs FMLA leave request. Respondent, d espite

having the opportunity to do so, never sought to clarify his leave request,

and , for whatever reason, chose not to correct Mr. WilliamsÔ erroneous belief

th at Respondent left work at 4:30 p.m. , when all the while Respondent knew

that he actually left work several hours earlier at 1:30 p.m.

31. With respect to the events of February 3, 2021, the evidence

establishes that Respondent violated City rules and regu lations by failing to

inform his supervisor of his early departure from work under circumstances

where he clearly had the opportunity to do so. Also, as noted above, the email

that Respondent sent at 4:30 p.m. , on February 3, 2021, advised that

Respondent was taking ÑOne FMLA Episode From Now Till Tomorrow.Ò

Because RespondentÔs email was misleading as to when he actually left work,

Respondent actually had a three - hour unauthorized absence from work ( i.e . ,

from 1:30 p.m. to 4:40 p.m.) and misled his supervi sor as to the amount of

FMLA leave that was being requested.

February 10, 2021

32. On February 10, 2021, Respondent reported to work at his scheduled

time and then left the office from 2:00 p.m. to 4:40 p.m. When asked by his

department supervisor to acco unt for the missing time, Respondent could not

do so and instead elected to quibble with his supervisor about whether his

authorized lunch break was 30 minutes or one hour in duration. RespondentÔs

una uthorized leave was charged against his accrued vacatio n hours.

C ONCLUSIONS OF L AW

33. Jurisdiction of the subject matter and the parties lies in section 2.285

of the Clearwater Code of Ordinances, which authorizes the City to contract

with DOAH to review Ñemployee appeals resulting from alleged adverse

emplo yer action,Ò including suspension.

34. Chapter 2, section 3(b) of the CSR provides that hearings conducted

pursuant to section 2.285 of the Clearwater Code of Ordinances Ñshall utilize

a procedure as outlined in Section 120.57(1), Florida Statutes.Ò The pr ocedure

utilized herein, unless otherwise limited, comports with such requirements.

35. The Clearwater Code of Ordinances does not establish a standard of

proof in an appeal by an employee facing disciplinary action. Ordinarily, an

employer seeking to disc ipline an employee bears the burden of proving by a

preponderance of the evidence that discipline is appropriate. See Allen v. Sch.

Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990). ÑA ÓpreponderanceÔ

of the evidence is defined as Óthe greater wei ght of the evidence,Ô or evidence

that Ómore likely than notÔ tends to prove a certain proposition.Ò Gross v.

Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

36. C hapter 13 of the CSR provides in part as follows:

Sec. 1. Purpose -- The City reserves the right to

suspend, dismiss, or demote any employees who are

unwilling or unable to meet City - wide, Department,

and/or position standards. Position standards shall

also include all departmental rules, general or

special orders, and, if applicable, specified rules or

articles contained with respective collective

bargaining agreements.

Sec. 2. Performance Management and Review --

Each City Department oversees the management of

employees through performance and behavior

management programs established by the Human

Resources Department. The City reserves the right

to change or modify these programs. When

practical, the City through its management and

supervisory employees will provide intervention,

coaching, and corrective guidance that encourages

employees to recogn ize inappropriate behavior

and/or deficient job performance. Employees will be

provided with reasonable opportunities in order to

bring performance or behavior up to City or

Department standards. It is recognized, however,

that some employees may be unable or elect not to

meet such standards or expectations. In such

instances, the City may dismiss, suspend, or

demote the employee.

Sec. 3. Reasons for Suspension, Demotion, and

Dismissal -- Whenever practical, employees will be

given reasonable opportunity to bring their

performance and/or behavior up to acceptable

standards pursuant to the procedures and rules of

the CityÔs performance and behavior management

programs. However, employees may be subject to

disciplinary action up to and including immediate

di smissal for the following acts, including but not

limited to specifically cited examples:

* * *

(b) Failure to perform satisfactorily within

established guidelines.

* * *

(f) Habitual tardiness for duty or excessive

unauthorized absence from duty.

* * *

(l) [ W ]hen the City believes that an employee is

willful in refusing to adhere to established rules,

regulations, or guidelines.

37. The guidance manual for the PBMP instructs that:

The following standards represent Integrity issues

of such a se rious nature that immediate formal

discipline, up to and including termination, may be

recommended[:]

* * *

Violation of the provisions of Chapter 13, Section 3,

of the City Civil Service Rules and Regulations.

* * *

Dishonesty or untruthfulness or wil lful refusal to

provide information or otherwise cooperate during

an internal investigation or when directed to do so

by competent authority.

38. The evidence establishes that Respondent violated chapter 13, section

3(b) and (f) of the CSR because he had several hours of unauthorized

absences from work on February 1, 3, and 10, 2021 .

39. As for the issue of Ñwillfulness,Ò neither the Civil Service Rules nor the

PBMP manual provide a definition of the term Ñwillful.Ò A willful act is

therefore best defined by Florida case law, which identifies such an act Ñas

one that is voluntarily and intentionally performed with specific intent and

bad purpose to violate or disregard the requirements of the law.Ò Fugate v.

Fla. Elec. CommÔn , 924 So. 2d 74, 75 (Fla. 1st D CA 2006).

40. As noted in the Findings of Fact, Respondent, on two occasions in

December 2020, followed proper protocol by notifying the City in advance

that he was utilizing his ÑFMLA episode leave.Ò RespondentÔs knowledge of

the leave protocol , his volun tary refusal to follow the protocol multiple times

in February 2021 , his snarky, misleading, and evasive responses to

reasonable requests for information from his supervisor , and his confessed

frustration with how the City was handling his ADA accommodatio n request ,

all lead to the conclusion that Respondent acted willfully in his refusal to

adhere to the CityÔs established rules, regulations, and guidelines.

Accordingly, the evidence establishes that Respondent violated chapter 13,

section 3(l) of the CSR .

41. Respondent, by willfully refusing to follow the CityÔs established rules,

regulations, and guidelines, violated the PBMP Integrity Standard as

charged.

42. Respondent, by suggesting on February 3, 2021, that he left work

around 4:30 p.m. , when in act uality he left at around 1:30 p.m., and then

intentionally not correcting his supervisorÔs error as to this issue, despite

having the opportunity to do so, violated the PBMP Integrity Standard as

charged.

43. Respondent, by repeatedly refusing to answer Mr . WilliamsÔ queries

regarding his arrival time to work on February 1, 2021, and then misleading

his supervisor about having sent an email requesting leave on February 1,

2021, when in actuality no such email was sent, violated the PBMP Integrity

Standard a s charged.

44. Respondent Ôs act of simply stating ÑcorrectÒ in response to

Mr. WilliamsÔ request for clarifying information was a willful refusal to

provide information, and this conduct violated the PBMP Integrity Standard

as charged.

45. Even in instanc es where an employee violates PBMP Integrity

Standards or chapter 13, section 3 of the CSR, the City still has discretion,

pursuant to chapter 13, section 2 of the CSR , to follow the multi - step process

outlined in the PBMP manual. If, however, the City bel ieves that an

employee is either Ñunable or elect[s] not to meet [City] standards or

expectations, [then] [i]n such instances, the City may dismiss, suspend, or

demote the employee. Id . After giving due consideration to the totality of the

circumstances pr esent herein, it was not an abuse of discretion for the City to

impose against Respondent a two - day, unpaid suspension of his employment.

R ECOMMENDATION

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

R ECOMMENDED that that the Civil Service Board of the City of Clearwater

enter a final determination suspending without pay RespondentÔs

employment for a period of two days.

D ONE A ND E NTERED this 31st day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administ rative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of August , 2021 .

C OPIES F URNISHED :

Owen Kohler, Esquire Richard Michael Pierro, Esquire

City of Cl earwater Calciano Pierro, PLLC

600 Cleveland Street , Suite 600 146 Second Street North , Suite 304

Clearwater, Florida 33755 St. Petersburg, Florida 33701

Rosemarie Call, City Clerk

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

N OTICE OF R IGHT S

Civil Service Board regulations do not authorize the filing of exceptions to

this Recommended Order. The Recommended Order will be considered by the

Civil Service Board at a meeting to be noticed at a la ter time and place. At

that meeting the Civil Service Board will make a determination on the

disposition of this matter and thereafter send its order and penalty, if any, to

the City Manager. See § 2.285(4), Code of Ordinances.