South Florida Water Management Dist. v. Caluwe

• Decision Date: 07 November 1984
• Docket Number: 83-780 and 83-1910,Nos. 83-705,s. 83-705
• Citation: 459 So.2d 390
• Parties: SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellant, v. Frank A. CALUWE, Jr., and Unemployment Appeals Commission, Appellees. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellant, v. Frank A. CALUWE, Jr., Appellee. Frank A. CALUWE, Jr., Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
• Court: Florida District Court of Appeals

Page 390

459 So.2d 390

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellant, v. Frank A. CALUWE, Jr., and Unemployment Appeals Commission, Appellees.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellant, v. Frank A. CALUWE, Jr., Appellee.

Frank A. CALUWE, Jr., Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.

Nos. 83-705, 83-780 and 83-1910.

District Court of Appeal of Florida,

Fourth District.

Nov. 7, 1984.

Rehearing Denied Dec. 19, 1984.

Robert L. Norton and Michael Mattimore of Hogg, Allen, Ryce, Norton & Blue, P.A., Coral Gables, and Stanley J. Niego, West Palm Beach, for South Florida Water Management District.

Raymond A. Rea, Boynton Beach, for Frank A. Caluwe, Jr.

John P. Booth, Tallahassee, for Unemployment Appeals Commission.

HURLEY, Judge.

The termination of Frank A. Caluwe, Jr.'s employment with the South Florida Water Management District (District) engendered three appeals which have been consolidated on the court's own motion. The first appeal, brought by Mr. Caluwe, challenges the District's order that he is not entitled to reinstatement or back pay. The second and third appeals, initiated by the District, contest two orders. The first, issued by the Unemployment Appeals Commission, holds that Mr. Caluwe is entitled to unemployment benefits. The second order, entered by the Division of Administrative Hearings, holds that the District's Corrective Action Policy (Policy) is an invalid rule because it was not promulgated in compliance with section 120.54, Florida Statutes (1983). Upon reviewing these consolidated appeals, we conclude that Mr. Caluwe is entitled to be made whole, i.e., he is entitled to reinstatement, unemployment compensation benefits and back pay as discussed hereafter.

I

The District initiated a corrective action policy in 1981. Basically, it lists measures (corrective actions) which the District can take to resolve employee performance problems. It divides disciplinary offenses into four categories with specific penalties for each offense. For example, "failure to follow authorized instructions" is listed as a category # 2 offense and carries a penalty of 25 points for six months. Another provision indicates that "[a] total of 100 points in effect may be cause for termination." The District implemented this policy without following the formal rulemaking procedures of section 120.54, Florida Statutes (1983).

Frank A. Caluwe, Jr., worked for the District from 1974 until 1982. From '74 to '81, his work was marked by accomplishment and promotion. Job performance reports characterized his work as "excellent" and "well organized" and indicated that he had "a very good handle on all phases of the work." With this background, Mr. Caluwe was promoted to a supervisory position. In 1981, however, the picture began to change; controversy and antagonism became dominant themes. Caluwe was demoted to a staff position and, more and more, found himself in an adversarial position with his supervisors. For example, Caluwe asked to see certain documents regarding the District's insurance program. When refused, he invoked the state's public records law and stated that "[i]f ... unable to inspect these documents ... I will have no alternative then [sic] force compliance with the public records law through other means." His supervisor responded that Caluwe was guilty of "poor and inappropriate employee performance ...." Without addressing the critical issue of whether the documents were in fact public records and, therefore, available to any member of the public, the supervisor chastised Caluwe, stating that his request was "inappropriate and represented a misuse of (Caluwe's) position ... and misuse of the District's paid for equipment (typing, paper, etc.) and secretary." The record does not disclose how this dispute was resolved. Nonetheless, it exemplifies the polarization that developed between Caluwe and his employers.

A memorandum dated July 30, 1982, informed Caluwe that he had accumulated 125 disciplinary points and therefore was being discharged. The memorandum expressly referred to the District's corrective action policy which provides that a total of 100 points may be cause for termination. Caluwe's 125 points were broken down as follows: (1) 25 points for "uncooperativeness shown a co-worker," and "failure to respond to a request for information from a member of the public" arising out of an incident occurring on March 17, 1982, and (2) 100 points for writing a letter dated July 21, 1982, to members of the District's Governing Board. ¹ The latter 100 points were subdivided as follows: (a) 25 points for using abusive language towards co-workers (referring to his immediate supervisor, Charles Allen Hall, and the department head, Richard A. Rogers); (b) 50 points for using abusive or threatening language to the public or co-workers (referring to members of the District's Governing Board who were the recipients of the letter), and (c) 25 points for failing to follow promulgated grievance and complaint procedures. ² The memorandum, authored by department director Richard Rogers, generally concluded:

[I] am terminating you because you have accumulated 125 disciplinary points since March 19, 1982; you have made untrue allegations of misconduct which have substantially interfered with my ability to work with you; and your actions have made it impossible to transfer you to another department.

Mr. Caluwe contends that he was in fact fired for "whistle-blowing." More specifically, he maintains that his discharge was primarily a retaliatory gesture for two earlier letters which he sent to the Board notifying them of graft and corruption committed by District employees. ³ Caluwe asserts that his final letter of July 21st is nothing more than a display of frustration due to the Board's failure to respond to his earlier communications.

II

After a formal review hearing held at Mr. Caluwe's request pursuant to section 120.57(1), Florida Statutes (1983), a hearing officer decided that only 25 disciplinary points were validly assessed against Caluwe, and therefore recommended that he be reinstated with back pay. Findings of fact made by the hearing officer in support of his determination are set forth in pertinent part as follows:

7. On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board "urging" all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe's department when the talk was to be held, but made no mention regarding attendance. Caluwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis [sic] required attendance, and because other employees had missed the meeting in prior years. He conceded, however that it was "implied" from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that "everybody (was) expected to attend." Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed.

During the annual agency meeting Caluwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, "I don't know. That's not my job. Pat Gleason's group handles that." Out of "curiosity", the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered "abuse" as a result of this as the agency claims was not confirmed.

Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the "incident" with the receptionist. On March 22 Caluwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency's written code of conduct for employees. A 2e offense is defined therein as a "(f)ailure to follow authorized instructions." In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the "incident" with the receptionist, the missed meeting, and Caluwe's apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting.

8. On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other "incidents" that had occurred during the preceding eighteen months. Attached to the letter were 23 exhibits. Among other things, Caluwe accused Hall and Rogers of "improper conduct and abuse of authority" in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency's governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March 19. Caluwe was not disciplined for this action.

In his conclusions of law, the hearing officer stated that the 25 point...