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Krieger v. Florida Fish and Wildlife Conservation Commission

Florida Court of Appeals, Third District

May 31, 2017

Douglas Krieger, Appellant,
v.
Florida Fish and Wildlife Conservation Commission, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Florida Public Employee Relations Commission Lower Tribunal No. 15-132

          Law Offices of Slesnick and Casey, LLP and James C. Casey, for appellant.

          Brandy E. Elliott (Tallahassee), for appellee.

          Before LOGUE, SCALES, and LUCK, JJ.

          LUCK, J.

         Douglas Krieger, a former law enforcement officer with the state fish and wildlife commission, was fired for insubordination. Krieger appeals the final order of the public employees relations commission terminating him because his pre- termination due process rights were violated, his supervisor's order that formed the basis of the insubordination charge was vague, and termination was not an appropriate remedy under the fish and wildlife commission's regulations. We disagree, and affirm.

         Factual Background and Procedural History

         The fish and wildlife commission hired Krieger as a law enforcement officer on September 10, 2012. In November 2014, Lieutenant Michael Haney, Krieger's direct supervisor, observed Krieger "sitting idle" at John Pennekamp Coral Reef State Park. Subsequently, on December 4, 2014 and on January 9, 2015, Lt. Haney instructed Krieger to patrol the southern portion of their patrol zone (from Whale Harbor to Vaca Cut). He further advised the entire squad, and Krieger one-on-one, not to enter Pennekamp unless they received a call to service or an officer requested assistance. Lt. Haney also went on patrol with Krieger and observed first-hand that Krieger was not properly performing his duties (i.e. issuing warnings and citations).

         After the January 9 meeting, Lt. Haney began to more closely monitor Krieger's work activities and discovered that Krieger continued to enter Pennekamp in direct contravention of Lt. Haney's January 9 order. On January 30, Lt. Haney responded to an electronic mail message from Krieger requesting clarification of the January 9 order. Lt. Haney reiterated that Krieger was "not to be in Pennekamp unless [he] receive[d] a call for service or an officer request[ed] assistance" and, upon starting his shift, he was "to proceed directly to the boat and patrol the south end of [the] zone."

         On February 10, Lt. Haney emailed Major Roger Beaton, his supervisor, regarding Krieger's failure to obey orders and work performance. The following day, Lt. Haney filed a complaint against Krieger with the fish and wildlife commission's inspector general's office, alleging "that Krieger engaged in numerous instances of loafing and insubordination, [was] inefficient or unable to perform his job duties, violated policies procedures and General Orders and falsified records."

         The inspector general's office reviewed Krieger's personnel records, his activity reports, the records from the computer dispatch system, the global positioning device on his service vehicle and boat, the radio logs, and surveillance video from Pennekamp in determining Krieger's whereabouts and work performance from October 20, 2014 to April 7, 2015.[1] The investigation, completed on June 5, 2015, sustained all allegations against Krieger as "supported by proper and sufficient evidence."

         On September 4, the fish and wildlife commission sent Krieger a predetermination notice explaining its intention to terminate him. The letter listed specific rule violations, allegations of insubordination, and facts upon which his intended termination was based. The letter, specifically, identified dates and times when Krieger acted in direct contravention of the orders: (1) not to go into Pennekamp unless he received a call for service or an officer requested assistance; and (2) "to concentrate [] water patrol on the south end of the patrol zone." On September 24, the fish and wildlife commission held a pre-determination hearing with Krieger.

         On October 27, the fish and wildlife commission terminated Krieger's employment for insubordination because he failed to: refrain from patrolling Pennekamp; and patrol the southern portion of his patrol zone from Whale Harbor to Vaca Cut. Krieger appealed his termination to the public employees relations commission. After a four-day evidentiary hearing, the hearing officer recommended dismissal of Krieger's appeal. The public employees relations commission overruled Krieger's ...


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