WINTER HAVEN -- Winter Haven City Manager Carl Cheatham denied defense attorney Gary Wilson's motion for dismissal Tuesday in the due process hearing of Brock and Marie Gainer. Instead, Cheatham struck from the record one of a list of charges against the pair -- an allegation regarding the "publishing of false or malicious statements concerning any employee."
Wilson said he made the motion for dismissal on the grounds that the city did not finitely argue the allegations against the Gainers.
"Basically, not only do we believe that due process in this situation has been stymied, but we also contend that the city has not presented a factual case to warrant the circumstances that my clients face," Wilson said.
After Cheatham's denial, Wilson went forward with testimony from a number of Lei-sure Services Department defense witnesses, such as irrigation supervisor Don Merkley, and former grounds maintenance technician Freddie Sutton, fired a few months ago on charges of showing up to work under the influence of alcohol.
Sutton testified that he never saw time-clock violations committed by anyone who worked under Brock, suggesting that, if anything, the crew sometimes left early to save the city money.
"Sometimes we'd punch out early -- to save the city some money," he told Wilson.
It was Merkley, though, who provided the most candid testimony of the day.
"For years I've seen favoritism and everything (else) at Leisure Services," Merkley said. "It comes directly from (director of Leisure Services) Bob Sheffield. Bob likes to say yes -- but only to certain people."
Merkley, a 14-year city employee, said he believed athletic supervisor Gordon Ostlund was partially to blame for the ordeal facing the Gainers. He said Ostlund, a 10-year employee, had expressed dislike for both Gainers over the years.
"I think this whole thing was initiated by Gordon," he explained. "I can remember him some time back saying something like, 'if the city doesn't do something, he was going to do something, personally.'"
Wilson questioned Merkley about fellow Leisure Services employees supposedly working on Sheffield's boat during city time, and lunch breaks taken by Sheffield, aquatics supervisor Travis Edwards and parks supervisor Gene Mathews.
"I have seen them working on the boat and the jet ski before," he said. "Everybody knows Travis and Gene are Bob's friends."
Merkley also said he'd seen on occasion: A city golf cart parked for an extended amount of time at Outback Steakhouse on Cypress Gardens Boulevard; Sheffield's son, Sam, driving a city vehicle; and the elder Sheffield driving a city vehicle to Florida Southern College in Lakeland, where he taught a part-time recreation class.
Wilson's line of attack, however, was preempted when Cheatham shot down a request to question Human Resources Director Michele Stayner, who Wilson said has the answers to some yet-uncontested questions. Acting on information given by city attorney Bob Antonello, Cheatham cited a mutual, pre-hearing verbal agreement that stipulated Stayner's neutrality.
"The charges against my clients emanated from somewhere," Wilson insisted. "They didn't just pop out of thin air. As director of Human Resources, it is my belief that she (Stayner) can shed light on issues that heretofore haven't been clarified," he said.
Orlando-based Wilson represents the Gainers, longtime husband and wife employees, who have been suspended since November by Sheffield for allegedly violating numerous city policies.
Both Gainers -- whose collective salaries total more than $70,000 -- were initially suspended with pay last November by Sheffield; that status was later changed to "without pay." Their ultimate reinstatement -- or termination -- rests with Cheatham, who serves as hearing officer. Both have indicated to city officials that they would like their jobs back.
Career city workers, Brock Gainer, a 12-year grounds maintenance supervisor, is accused of:
Break and lunch period violations.
Falsifying time cards.
Unauthorized use of a city vehicle.
Taking items from the DiamondPlex team shop near Polk Community College.
Not getting along with fellow departmental employees.
Marie Gainer, a 24-year employee and current assistant to the director, is accused of:
Not providing passwords to her computer at work.
Approving the use of the city Jeep by Brock to and from work, against the directives of Cheatham.
Allowing a part-time employee who worked under Brock to forego punching a time card and, instead, filling out the name of the employee on the card herself, against specific written guidelines.
Violations of the city's policy and procedural manual that require all rental contracts to be in writing.
Both of the Gainers will take the witness stand later today or Thursday, Wilson said.
Cheatham said a final decision will be rendered no less than five days after the final session, which is expected to be Thursday.
The hearing resumes today at 9:00 a.m. at City Hall, 451 Third St. NW.
