STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-090

)

DANNY FIVECOAT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in the City Hall, 112 South Osceola Avenue, Clearwater, Florida, commencing at 9:30 A.M., March 25, 1981.

APPEARANCES

For Petitioner: Frank X. Kowalski, Esquire

Chief Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

For Respondent: Gary R. Singletary, Esquire

Exchange Bank Building, Suite 1625 610 Florida Avenue

Tampa, Florida 33602 ISSUE

The matter for consideration here involves administrative charges placed by the Petitioner, City of Clearwater, Florida, against its employee, Danny Fivecoat, leading to his termination and dismissal as an employee of that municipality. Charge I accuses the Respondent of violating Rule 14, Section 1(k), Civil Service Rules of Clearwater, Florida, for disobeying official regulations or orders of superior officers amounting to insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the Department; or to result in the loss, inconvenience, or injury to the City or to the public. Further, this charge accuses him of a violation of Rule 23, Rules and Regulations of the City of Clearwater Police Department, prohibiting employees, while on duty, from engaging in unofficial, unnecessary association with the opposite sex for social or personal purposes and a violation of Rule 14, Section 1(j), Civil Service Rules of Clearwater, Florida, for being guilty of conduct unbecoming a City employee defined as scandalous or disgraceful conduct while on or off duty where that conduct tends to embarrass the City or bring its service into public disrepute. Within Charge I, there is found Specification I, which accuses the Respondent of inviting two females, namely Kim Dubois and Diana Scanlan, to meet him at a stakeout location and of making this invitation on July 25, 1980, the terms of that invitation to be

consumated later that evening. It is alleged that the purpose of the invitation was to keep Fivecoat company. The specification goes on to allege that the two females in question met Sergeant Fivecoat and other members of his TAC team at a stakeout location and that he invited them to enter the stakeout vehicle which invitation was accepted by those females and that they stayed for a number of hours and returned the following morning and were invited into the vehicle by Sergeant Fivecoat and remained there again for a period of hours. Charge II alleges that the Respondent violated Rule 14, Section 1(b) and (o), Civil Service Rules of the City of Clearwater, Florida, in that he was incompetent and inefficient in the performance of the duties of his position and has been induced or has attempted to induce another officer employed by the City Service to commit an illegal act or to act in violation of any lawful or reasonable departmental or official regulation or has participated in such matters.

Specification II to Charge II states that, while on a stakeout to apprehend burglary suspects, in the early morning hours of July 26 and 27, 1980, that Sergeant Fivecoat invited Kim Dubois and Diana Scanlan to enter the stakeout vehicle which he occupied with other members of a TAC unit which he supervised. Further, that the two females remained in the vehicle from around 2:00 A.M. until 6:00 A.M. on each night while the stakeout operation was being conducted. That by doing so, Sergeant Fivecoat created an unreasonable and totally unnecessary risk of grave bodily harm to the two female civilians by placing them in a situation in which a high-speed chase, a gun fight, or a similar confrontation could have erupted. In addition, it is alleged that Sergeant Fivecoat coerced the members of the TAC unit to acquiesce in the violation of Rule 23, Rules and Regulations of the City of Clearwater Police Department, in that his conduct set a poor example for his subordinates and tends to undermine the respect for authority which is essential to the efficient operation of the police force.

FINDINGS OF FACT

1. The Petitioner in this action is the City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community, to include police protection. It has among other powers, the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831, pursuant to Chapter 21153, Special Laws of Florida, 1941. This ordinance deals with a career civil service system for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. A subunit within the City of Clearwater is the Clearwater Police Department which has rules and regulations which would apply to the employees within that Department.

   
   

2. This case concerns charges placed by the Petitioner, City of Clearwater, against the Respondent, Danny Fivecoat, who held the position of Sergeant in the Clearwater Police Department on July 25, 1980. Those charges placed under the terms and conditions of a "Termination Dismissal Notice" which may be found as Joint Exhibit No. 3, admitted into evidence, set forth the accusations as alluded to in the Issues statement of this Recommended Order. The termination and dismissal notice was placed against the Respondent on December 15, 1980, when he was relieved as a police officer and dismissed from employment with the City of Clearwater. This action was taken in keeping with the authority of City of Clearwater Ordinance No. 1831 and pursuant to Rule 14, Section 6, Civil Service Rules of Clearwater, Florida. Subsequently, the Respondent attempted to explain and answer the charges and specification placed

   against him, but the explanation and answer were found to be insufficient by the appointing authority, City Manager, City of Clearwater, Florida, and pursuant to

   the terms and conditions of City of Clearwater Ordinance No. 1831, Section 2-38, the Respondent requested a formal hearing to be held before the Division of Administrative Hearings. That formal hearing was held in keeping with the terms of the aforementioned ordinance and the agreement between the City of Clearwater and the Division of Administrative Hearings to provide a Hearing Officer for these matters. See also Subsection 120.65(6), Florida Statutes. The hearing in this cause was conducted on March 25, 1981.

   
   

3. In July, 1980, while employed as a sergeant in the Clearwater Police Department, the Respondent was assigned as supervisor of a TAC unit. Within that unit were five (5) or six (6) subordinate officers to the Respondent. One of the duties of the TAC unit in July, 1980, concerned an effort to ascertain the identity of a person or persons who were suspected of committing the felony offenses of burglary and arson at a commercial premises now known as Gulf Branch Saloon and formerly known as Bobby Sands 60. This bar was located on State Road

   60 within the corporate limits of the City of Clearwater, Florida. To apprehend the offenders, Fivecoat established a surveillance network in the area of the bar location. The rough details of that network may be seen as Employee's Exhibit No. 6, admitted into evidence, which is a sketch, not to scale, depicting surveillance locations in July, 1980, and in particular, on July 25, through July 27, 1980. The numbers 1, 2 and 3 depict surveillance points of members of the TAC unit who were on foot. The word van indicates the location of the command post of the surveillance unit and in addition, there were two unmarked automobiles that were east and west of the location of the bar. These locations are not depicted with any particularity.

   
   

4. The primary surveillance was being conducted by the three individuals shown by the numbers on Employee's Exhibit No. 6, with the idea being that from the three locations, the entire bar area could be surveilled. The van served as a command post and a rallying point for the officers on the surveillance team and was used as a location for taking breaks and meals while on the surveillance assignment. Those persons in the outlying surveillance posts would come to the van to take breaks and to have their meals after being relieved by Respondent and an Officer Adamson. Officer Adamson was assigned to drive the van and to assist Sergeant Fivecoat.

   
   

5. The van itself was not equipped as a police unit per se, it was unmarked and did not have police emergency lights or sirens or communications equipment and was not designed for pursuit responsibility, although it had been used as mobile surveillance and on occasion, Officer Adamson had attempted to use it as a pursuit vehicle. The Respondent did not find it to be an appropriate pursuit vehicle, he did, however, feel that it could be used as mobile surveillance and as an apparatus for blocking suspects who were fleeing a scene of a crime in an automobile. The van had two front seats and other additional seating that had been placed there by arrangement of members of the TAC unit and it contained bicycles to be utilized for transportation in the area of a surveillance setting. The van was not primarily used for the surveillance, but it did allow a view of the west side of the subject bar and this observation was principally the assignment of Officer Adamson.

   
   

6. On the evening of July 25, 1980, prior to setting up the surveillance operation alluded to herein, the Respondent and members of his unit went to a local restaurant in Clearwater, Florida, to have dinner and to discuss the plans of operation for that evening. While at the restaurant, the Respondent and one Kim Dubois, an employee in the State Attorney's Office which has jurisdiction in Clearwater, Florida, engaged in a conversation through which the woman Dubois determined that the surveillance activities were ongoing, specifically that the

   Respondent could be found in the parking lot of the Western Sizzler on State Road 60 later on that evening. In the course of this conversation, Fivecoat let it be known that it would be acceptable for Dubois to come to the stakeout and carry on a conversation while the surveillance was ongoing.

   
   

7. Between 2:45 A.M. and 3:00 A.M., on July 26, 1980, Kim Dubois and one Diana Scanlan, another employee of the same State Attorney's Office, went to the location of the van in the Western Sizzler parking lot. At that time, the surveillance operations had been underway for a period of approximately an hour and forty-five minutes. The two women sat in their automobile and talked to Sergeant Fivecoat and Officer Adamson who were seated in the van. Fivecoat was on the passenger side of the van. At times the women were outside their car talking to the officers who remained in the van. Other officers who were on the surveillance team came to the van while the women were present and Officers other than Adamson and Fivecoat entered into conversation with the women. The two women remained in the area of the van engaging in a conversation until around 5:00 to 5:30 A.M., at which point they left the area of the surveillance and the members of the surveillance team left shortly thereafter. Nothing other than the conversation between the women and Respondent and other members of his team took place and no burglary or other incident occurred which required police intervention. Neither Fivecoat nor other members of his team asked the women to leave the area of their surveillance. While these events were going on, cars were operating on State Road 60 and at times, other persons were in the parking lot of the Western Sizzler eating establishment. None of the officers were wearing police uniforms on this occasion nor were they in uniform on the night of July 26, 1980, in the early morning hours of July 27, 1980.

   
   

8. Again, in the early morning hours, around 2:45 to 3:00 A.M., July 27, 1980, the women came to the location of the van in the parking lot of the Western Sizzler where the Respondent and Officer Adamson were located. The surveillance team members were located in approximately the same positions as depicted in Employee's Exhibit No. 6. Initially, the women sat in their car and talked to the Respondent and Officer Adamson who were seated in the van, until the police officers ran out of soft drinks and the women departed and brought soft drinks back to the police officers in the van. The drinks were given to the officers and the women were allowed in the van, into the back part of that vehicle. While they were inside, the side cargo door remained open and no other matters transpired between the women and the police officers other than conversation between them. Sergeant Fivecoat never indicated that the women should not be in the van and the women were lead to believe that it was acceptable for them to be inside. The women remained in the van for approximately an hour and left the scene of the surveillance around 5:00 to 5:30

   A.M. and the Respondent and members of his team concluded the surveillance shortly thereafter. Again, the pattern of traffic on State Road 60 and in the Western Sizzler parking lot was essentially the same as the evening and morning before and no criminal violation occurred which required the action of the police officers in the TAC unit.

   
   

9. Had such activity occurred as was the expectation of sergeant Fivecoat, the members of the TAC team outside the van proper would have been primarily responsible for enforcement and he and Adamson were mostly responsible for relieving those officers during breaks. Nonetheless, Sergeant Fivecoat was the overall supervisor and responsible for the surveillance operation in question. On the second night and morning, other officers came to the van and entered into conversation with the women. On the second morning and evening, neither Sergeant Fivecoat nor any members of the TAC unit asked the women to leave the area of the surveillance.

10. Sergeant Fivecoat knew that the presence of the two women at the TAC command post was in violation of the prohibition against their presence as set out in Rule 23, Rules and Regulations of the City of Clearwater Police Department.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

12. In considering Charge I to the Termination and Dismissal Notice/Administrative Complaint, the facts demonstrate that the Respondent violated Rule 14, Section 1(k), Civil Service Rules of Clearwater, Florida, amounting to insubordination and serious breach of discipline which could reasonably be expected to result in lower morale in the police department and result in loss, inconvenience or injury to the City or to the public, within the meaning of that Rule, by failing to comply with Rule 23, Rules and Regulations of the Clearwater Police Department which prohibits employees, while on duty, from engaging in unofficial or unnecessary associations with the opposite sex for social or personal purposes. In the early morning hours of July 26 and 27, 1980, Sergeant Fivecoat, by his actions, allowed Kim Dubois and Diana Scanlan, females, to remain at the stakeout location of his TAC unit and this arrangement was for social and personal purposes, and as such was not related to the performance of his official duties. By these acts, Sergeant Fivecoat was guilty of conduct unbecoming a City employee which is considered disgraceful, in that the conduct tended to embarrass the City and bring its service into public disrepute, within the meaning of Rule 14, Section 1(j), Civil Service Rules of Clearwater, Florida.

    
    

13. Related to Charge II in the Termination and Dismissal Notice/Administrative Complaint, Sergeant Fivecoat was inefficient in the performance of the duties of his position within the meaning of Rule 14, Section 1(b), Civil Service Rules of the City of Clearwater, Florida, in that the distraction caused by the women who were at his TAC command post in the early morning hours of July 26 and 27, 1980, impaired his efficiency. Furthermore, his acquiescence in the continued presence of the women on the nights related above constituted the inducement of the other officers of his TAC command to commit illegal acts in violation of Rule 23, Rules and Regulations of the Clearwater Police Department related to the prohibition against employees engaging in unofficial and unnecessary associations with the opposite sex for social or personal purposes while on duty. This inducement was in violation of Rule 14, Section 1(o), Civil Service Rules of the City of Clearwater, Florida.

    
    

14. The actions of the Respondent placed the two female civilians in the position of unreasonable and unnecessary risk to their person, notwithstanding the fact that no criminal actions occurred which required supervision and further participation by the Respondent. It also constituted a poor example for the subordinate members of the TAC unit in that it had the potential to effect their respect for command authority which is necessary to the operation of the police force.

    
    

15. By his action, and in keeping with Rule 14, Civil Service Rules of Clearwater, Florida, the Respondent is subject to suspension and/or demotion or dismissal.

RECOMMENDATION

The Respondent's Composite Exhibit No. 5, admitted into evidence, is a compilation of fitness reports and other items related to the Respondent's performance as a police officer. These items are taken from the personnel file of the Respondent as administered by the Petitioner. With the exception of the incident occurring in June, 1977, related to a liaison of a sexual nature between the Respondent and a female which occurred in the months of March or April, 1977, for which the Respondent was given a ten-day suspension, the Respondent has not been disciplined in the past and has an acceptable record.

The details of the other disciplinary action may be found in the Petitioner's Exhibit No. 1, admitted into evidence.

The actions of Sergeant Fivecoat, as set forth in this Recommended Order, related to the incident involving the two civilian females is reprehensible and having occurred with the knowledge of Sergeant Fivecoat that he was committing a violation is inexcusable. Nonetheless, it is not of such magnitude that it would warrant the ultimate imposition of the penalty of dismissal as would be contended for by the City Manager, City of Clearwater. Likewise, the recommendation of demotion from Sergeant to patrolman and a five (5) day suspension as made by the interim Police Chief would seem too lenient. Under the circumstances, the recommendation herein would be that Sergeant Danny J. Fivecoat be reduced in grade to patrolman and be suspended for a period of thirty (30) days to run from the entry of a final order in this cause. 1/

DONE and ENTERED this 17th day of April, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1981.

ENDNOTE

1/ The parties to this action, in the person of their counsel, have filed Proposed Findings of Fact, Conclusions of Law, and Recommendations for use in preparing the Recommended Order. Those proposals and recommendations have been reviewed prior to the entry of this order and to the extent that they are consistent with the Recommended Order, they have been utilized. To the extent that the proposals and recommendations are inconsistent with the Recommended Order, they are hereby rejected.

COPIES FURNISHED:

Frank X. Kowalski, Esquire Chief Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

Gary R. Singletary, Esquire Suite 1625, Exchange Bank

Building

610 Florida Avenue

Tampa, Florida 33602

Docket for Case No: 81-000090

Orders for Case No: 81-000090