STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR RAY CAMPBELL, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1615

) DEPARTMENT OF NATURAL RESOURCES, ) DIVISION OF LAW ENFORCEMENT, ) CAREER SERVICE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above styled case on January 11, 1977 in Room 307 of the Volusia County Courthouse Annex, City Island, Daytona Beach, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This hearing was the result of the appeal to the Career Service Commission by Arthur Ray Campbell of his suspension by the Florida Marine Patrol which was referred by the Career Service Commission to the Division of Administrative Hearings to conduct the formal evidentiary hearing in the appeal. The basis for the disciplinary action taken against Arthur Ray Campbell is stated in the fifth paragraph of the letter of disciplinary action to Campbell from Lieutenant J. J. Brown dated May 5, 1976 which states as follows:

"While enroute to Pensacola, you used the blue light to run a red traffic signal in Cross City. This cannot be considered any- thing other than a willful act of insubor- dination as you were not chasing a violator, or was this classified as an emergency, as specific instructions were given to the contrary.

APPEARANCES

For Petitioner: Melvin R. Horne, Esquire

HORNE, RHODES, JAFFRY, STEPHENS, BRYANT, HORNE & CHAPMAN

Post Office Box 1140 Tallahassee, Florida 32302

For Respondent: Kent A. Zaiser, Esquire

Department of Natural Resources Crown Building

202 Blount Street Tallahassee, Florida 32304

ISSUE

Whether the disciplinary action taken against Arthur Ray Campbell was for good cause.

FINDINGS OF FACT

1. Arthur Ray Campbell is a Career Service Employee of the State of Florida employed by the Division of Law Enforcement, Department of Natural Resources. He was suspended for a period of eleven (11) working days for using the blue light on a Marine Patrol vehicle to run a red traffic signal in Cross City. Campbell filed a timely appeal of his suspension with the Career Service Commission.

   
   

2. On February 10, 1976, the Florida Marine Patrol was ordered by the Office of the Governor of the State of Florida to provide personnel for a special assignment in Pensacola, Florida. These personnel were to assist local law enforcement authorities in controlling a civil disturbance in that city which had resulted from racial tensions in one of the high schools. Pursuant to those orders, Lieutenant Colonel J. J. Brown of the Florida Marine Patrol directed Major Louis Shelfer, the staff officer in charge of the Marine Patrol Emergency Squad, to notify the District Offices of the Florida Marine Patrol to dispatch Marine Patrol Emergency Squad personnel to Pensacola. Major Shelfer was ordered by Colonel Brown to make certain that all supportive personnel understood that in their movement to Pensacola blue lights and sirens would not be used. Colonel Brown further instructed Major Shelfer to advise the various district offices that personnel were to move as quickly as possible to Pensacola and that he wanted the Emergency Squad in Pensacola the morning of February 11, 1976.

   
   

3. Just prior to 5:00 p.m. on February 10, 1976 Major Louis Shelfer called each of the district offices from which Emergency Squad personnel were being dispatched to Pensacola and advised the officer in charge or the dispatcher that the personnel on the Emergency Squad, who were already on standby for movement, were to be dispatched to Pensacola. Major Shelfer further directed that these personnel were to move to Pensacola as soon as possible but were not to run blue lights or sirens. He further advised that there was no emergency existing in Pensacola at the time. Major Shelfer did not give a time by which personnel would report in Pensacola. It was, however, the understanding of Colonel Brown and Major Shelfer that all personnel would be in Pensacola by 6:00 a.m. on February 11, 1976. In District 7, Major Shelfer spoke with Mrs. Patricia Morgan, secretary/dispatcher.

   
   

4. Mrs. Patricia Morgan, who is also the wife of Captain H. C. Morgan, Jr., the District Supervisor of District Seven, received Major Shelfer's first alert call for the movement of the Emergency Squad personnel of District 7 to Pensacola at 4:45 p.m. on February 10, 1976. Shortly thereafter, she received the second call from Major Shelfer directing that the Emergency Squad personnel would proceed to Pensacola. Upon receiving the second call Mrs. Morgan contacted Officers Malcolm and Johnson on the communications radio and advised them that they were to proceed to Pensacola as quickly as possible but not "1018" by which she meant it was not an emergency. Mrs. Morgan further instructed these Marine Patrol Officers not to run red lights while proceeding to Pensacola. She specifically instructed Officer Malcolm that he would pick up Officer Campbell who would ride with him to Pensacola. While Officer Malcolm remembered Mrs. Morgan's reference to red lights, neither Officer Malcolm nor Officer Schumaker, who monitored their conversations, remembered any information

   passed on by Mrs. Morgan that the trip was not a "1018" run or not an emergency run. Mrs. Morgan was initially unable to contact Officer Campbell by radio and therefore called Officer Campbell's home and spoke with his wife giving her the information that she had given Officers Malcolm and Johnson. However, while speaking with Officer Campbell's wife, Officer Campbell called District 7 on his radio and asked Mrs. Morgan if she had any information for him. She advised Officer Campbell at that time that he would be going to Pensacola and would ride with Officer Malcolm. Mrs. Morgan did not remember giving Officer Campbell any information on the use of lights during the trip, but said that she did remember telling him it was not a "1018" run. Officer Campbell states that the information he received ordered him to return to his home and get ready to be picked up by Officer Campbell and that the information he needed had been passed on to his wife and Officer Malcolm.

   
   

5. At approximately 7:30 p.m. on February 10, 1976, having secured from Water Patrol, gone to his home and packed, picked up Officer Campbell at his home, Officer Malcolm left Daytona for Pensacola. Officer Malcolm drove to Ocala using blue lights, where the men purchased hamburgers for their meal. Officer Malcolm ate while Officer Campbell continued to drive and the two officers changed over when they stopped to get gasoline. Officer Campbell then drove from the vicinity of Ocala to Cross City. As they approached Cross City, Officer Malcolm advised Officer Campbell to turn on the blue light because they were slightly over the local speed limit entering Cross City. As they approached the second traffic light in town which was red, Officer Campbell stopped or came almost to a complete stop at the light. As he started to proceed forward, having made certain the intersection was clear, the traffic light turned green. Malcolm and Campbell continued on through Cross City using the blue light until they reached the open highway on the north side of the city. Officer Malcolm's car does not have a siren but is equipped with blue light only.

   
   

6. On the evening of February 10, 1976 Trooper J. R. Touchton was proceeding south on U.S. 19 in Cross City at approximately 9:00 or 9:30 p.m. He observed a northbound automobile, which shortly after he initially saw it, turn on its emergency blue lights. Trooper Touchton, not immediately identifying the type of vehicle he had passed, called his dispatcher to determine if another Florida Highway Patrol vehicle was operating in the area because the car which he had passed was a marked state law enforcement car similar to those of the Florida Highway Patrol. Touchton thought that the car which he had passed was in the process of stopping a truck immediately ahead of him. Touchton executed a "U" turn and proceeded north but shortly after Touchton turned, the truck which Touchton had thought the other patrol car was stopping turned left off the highway and the patrol car in front of him proceeded north out of Cross City still using its blue lights. Touchton saw the patrol vehicle ahead of him slow down or stop at the second traffic light but did not observe whether the second traffic light was red or green when the vehicle proceeded through it. In response to Officer Touchton's call the Highway Patrol Dispatcher advised Touchton that the vehicle which he had observed was probably a Marine Patrol vehicle being dispatched to Pensacola. Sergeant J. D. Peacock was following Officer Touchton south on U.S. 19 in Cross City and first observed that later he identified as a Marine Patrol vehicle approaching the second traffic light in Cross City. At that time the Marine Patrol had its blue lights and emergency flashers on; however, it did not have its siren on. Sergeant Peacock observed the Marine Patrol vehicle slow or stop at the traffic light and then proceed through the traffic light headed north on U.S. 19. Both Highway Patrol Officers indicated that the Marine Patrol vehicle was driving within the posted speed limit.

7. On March 5, 1976 personnel in the Cross City, Florida Marine Patrol Office brought to Colonel J. J. Brown's attention the fact that a Marine Patrol car had passed through Cross City on February 10, 1976 using blue lights. This had been brought to the attention of the Cross City Marine Patrol by the Florida Highway Patrol Supervisor in that area, Sergeant J. D. Peacock. Colonel Brown directed Major Shelfer to conduct an investigation into the matter. Major Shelfer contacted all of the district supervisors who had sent personnel to Pensacola and requested that they provide him with the times and routes of travel of personnel which had been sent to Pensacola. From an analysis of this data, Major Shelfer determined that only personnel sent from District 7 in Daytona to Pensacola would have passed through Cross City enroute to Pensacola at the hour in question. Having determined this Major Shelfer directed Captain Morgan, Supervisor of District 7, to have the personnel from District 7 who were sent to Pensacola prepare written reports on their trips to Pensacola. Officers Campbell and Malcolm prepared and submitted written reports to Captain Morgan which were received into evidence at the formal hearing as Exhibits 5 and 6 respectively. Based upon the investigation conducted by Major Shelfer, Officer Campbell was suspended.

   
   

8. Employee evaluations were introduced that indicate that Officer Campbell's efficiency for the period of time involved here was downgraded as a result of the conduct for which he was suspended.

   
   

   CONCLUSIONS OF LAW

   
   

9. The employee has raised the provisions of Section 112.532(1), Florida Statutes, as a defense to the disciplinary action taken by the Agency. The provision involved, sometimes called the Police Officer's Bill of Rights, does not provide any defense or relief in the instant case because it does not have any provision which would permit suppression of the evidence acquired by the investigation or dismissal of the charges. The only remedies provided are civil relief for damages suffered by a police officer and injunctive relief to enforce compliance by the police agency involved. The Career Service Commission and the Division of Administrative Hearings cannot grant either statutory remedy, therefore, this issue is not considered and no specific finding is made, the issue being immaterial and irrelevant to the issue of whether good cause existed for disciplinary action.

   
   

10. Under the provisions of Chapter 110, the agency has the burden of proof to show that it had good cause for taking disciplinary action against Officer Campbell. The basis of the disciplinary action as stated in the letter of May 5, 1976 was insubordination for failure to follow specific orders and Marine Patrol directives.

    
    

11. Without regard to the orders that Officers Malcolm and Johnson received from the dispatcher it is clear that Campbell did not receive any orders regarding the use of lights. He was advised by the dispatcher that his wife and Officer Malcolm had the information he needed and that he was to proceed to his home, prepare to leave for Pensacola, and Officer Malcolm would pick him up. Therefore Campbell did not receive orders regarding the use of lights and was dependent upon Officer Malcolm's understanding of the orders which he had received. After picking up Campbell, Officer Malcolm drove using the blue light and told Campbell to turn on the blue light when they arrived in Cross City. Officer Campbell cannot be charged with disobedience of orders which were not communicated to him. The agency has failed to show by

    substantial and competent evidence that Campbell received the order not to use blue lights.

    
    

12. Regarding any charge that officer Campbell violated divisional policy, in the absence of official information indicating an emergency did not exist in Pensacola, the situation described in the media would have met the definition of an emergency as defined in the Policy Memorandum dated January 14, 1976. There is no substantial and competent evidence that Campbell was advised that an emergency did not exist. The testimony of Mrs. Morgan and that of Officer Campbell conflicts as to the orders which he received. The only official record made contemporaneously with the transmittal of the orders to Officer Campbell are the rotations on the log of the District 7 radio dispatcher which indicates that Officer Campbell (136) was advised at 5:09 p.m. of the Pensacola detail and that he would use Officer Malcolm's (115) car. Considering the conflict in the testimony of Mrs. Morgan and Officer Campbell, the radio log, as an official record, indicates that Officer Campbell was not advised that an emergency situation did not exist in Pensacola.

    
    

13. In conclusion the memorandum of January 14, 1976 introduced by the agency as the official policy regarding the use of blue lights does not specifically relate to their usage but addresses instead the driving habits and use of excessive speed by Marine Patrol personnel. Said memorandum provides that Florida Marine Patrol drivers will exceed the posted speed limits only under emergency conditions or while chasing violators. The memorandum defines emergency situations and chasing a violator, and directs that blue light and siren will be used when exceeding the speed limit. While the memorandum requires blue lights and sirens be used under the stated conditions, it does not preclude their use in other situations where their use would be consistent with the prevention of injury, death or property damage to the members of the public. Under the memorandum the use of blue lights would not be precluded in a situation where officers were ordered to proceed as soon as possible, but did not exceed the posted speed limits where under the circumstances the use of blue lights would assist the officers in the accomplishment of their assigned mission and would enhance the safety of the members of the public and the officers. The argument put forth by the agency that Campbell was insubordinate by failing to radio ahead for assistance as required by the memorandum is strained because this ground was not mentioned in the letter of disciplinary action. Further, Officer Campbell's assigned mission did not require the, assistance of other law enforcement agencies. While it might be good to contact other law enforcement agencies for liaison purposes while using blue lights and siren, under the instant circumstances the memorandum does not direct that liaison be accomplished. The memorandum specifically directs itself to requests for assistance. It is noted that when the officers did need assistance in determining the quickest route around Tallahassee they did, in fact, request and receive assistance from a Florida Marine Patrol office in the Tallahassee area.

    
    

14. The evidence of running the red light is in conflict. Malcomb stated the light had just turned green; Touchton and Campbell said they did not note the color; Campbell said he visually cleared the intersection and proceeded as ordered in the policy memorandum; and Peacock stated Campbell rushed the light. The facts indicate that Campbell complied with the policy memorandum concerning stopping for red lights while using blue emergency lights.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that substantial and competent evidence does not exist to

show that the agency had good cause to suspend Officer Arthur Ray Campbell for insubordination. The Hearing Officer recommends that the suspension be set aside and further, that the Career Service Commission consider whether remedial action is necessary to clear his employee evaluation for the period in question.

DONE and ORDERED this 4th day of February, 1977 in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Kent A. Zaiser, Esquire Mrs. Dorothy Roberts Department of Natural Resources Appeals Coordinator

202 Blount Street Room 530 Carlton Building Tallahassee, Florida 32304 Tallahassee, Florida 32304

Melvin R. Horne, Esquire 800 Barnett Bank Building Tallahassee, Florida 32301

Docket for Case No: 76-001615

Orders for Case No: 76-001615